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EXHIBIT 10.69
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into as of
December 31, 1997, by and among Golden Eagle Ice - Texas, Inc., a Texas
corporation ("Buyer") and Xxxxxxx Poultry Farms, Inc., an Arkansas corporation
("Seller").
PRELIMINARY STATEMENTS
Seller operates a division which is engaged in the manufacture, sale
and transportation and distribution of packaged ice products, such division's
business being herein referred to here in as "Seller's Business" or "Business"
and such defined term shall specifically exclude Seller's other business
operations not related to the packaged ice business; and
Seller operates the Business under the name of "Sportsman's Ice"; and
Seller is desirous of selling to Buyer and Buyer is desirous of
purchasing certain assets of Seller's Business, upon the terms and conditions
hereafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual
agreements, covenants, representations and warranties hereafter set forth, the
parties hereby agree as follows:
I. DEFINITIONS
Unless the context otherwise requires, the terms defined in this
Section I shall have the meanings herein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
herein defined.
"Assets" shall mean those assets of the Seller which are more fully
described in Section 2.1 and Schedule 2.1 of this Agreement. The Assets shall
not include the Excluded Assets (defined hereinbelow).
"Xxxx of Sale" shall refer to the Xxxx of Sale conveying title to the
Assets from Seller to Buyer attached to this Agreement as Exhibit A.
"Closing" shall mean the consummation of this Agreement.
"Closing Date" shall mean the date on which this Agreement will be
consummated.
"Excluded Assets" shall have the meaning set forth in Section 2.3 of
this Agreement.
"Financial Statements" shall have the meaning set forth in Section 3.3
of this Agreement.
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"Intangible Assets" shall mean all patents, trademarks, trademark
licenses, trade names, brand names, slogans, copyrights, reprint rights,
franchises, licenses, authorizations, inventions, processes, know-how, formulas,
trade secrets and other intangible assets of and only of the Business (together
with all pending applications, continuations-in-part and extensions for any of
the above).
"Seller's Disclosure Memorandum" shall mean a memorandum prepared by
Seller and delivered to Buyer that lists all disclosures by Seller concerning
the Assets and the Business which are the subject of this Agreement.
"Taxes" shall mean all excise, added value, sales, use, real and
personal property, occupancy, business and occupation, mercantile, real estate,
or other tax (including interest and penalties thereon and including estimated
taxes thereof).
II. PURCHASE AND SALE
2.1 PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions of
this Agreement, Seller agrees to sell, convey, assign, transfer and deliver to
Buyer, and Buyer agrees to purchase, at the Closing, the personal property,
intangible assets, contracts and rights of Seller related to the Seller's
Business which are described on Schedule 2.1 attached hereto and incorporated
herein by reference, and all of the goodwill of Seller's Business associated
therewith (collectively the "Assets").
2.2 PURCHASE PRICE. The purchase price of the Assets shall be
$3,725,000 (the "Purchase Price"). One half of the Purchase Price, less any
amounts to be paid directly to creditors of Seller that are required to
discharge any liens or other encumbrances against the Assets, shall be paid to
Seller at the Closing, and the remaining amount shall be payable after January
2, 1998 and on or before January 31, 1998.
2.3 EXCLUDED ASSETS. The Assets shall not include and Buyer shall not
acquire the assets and properties described in Schedule 2.3 attached hereto (the
"Excluded Assets").
2.4 ASSUMPTION OF LIABILITIES. It is hereby agreed and understood that
Buyer is assuming no liabilities or contractual obligations whatsoever of
Seller. Seller shall be responsible for all employment related expenses
occurring before Closing Date, including salaries, wages, accrued vacation pay,
sick pay or leave, unemployment compensation, income tax withholding, social
security taxes.
2.5 PRORATION. The parties shall prorate at the Closing the current
year's ad valorem taxes and vehicle license fees on the property comprising the
Assets, based on the latest available statements from taxing authorities,
whether for the current tax year or the preceding tax year. Seller's pro rata
share of such taxes and vehicle license fees shall be the portion attributable
to the period through the day preceding the Closing Date, prorated by days. The
prorated amounts shall be payable in the manner set forth below:
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(a) If a prorated amount is payable by Buyer and determinable
at the Closing, it shall be added to the amount payable by Buyer at the
Closing.
(b) If a prorated amount is payable by Buyer and not
determinable at the Closing, it shall be billed by Seller when
determinable and promptly paid by Buyer to Seller.
(c) If a prorated amount is payable by Seller and determinable
at the Closing, it shall be deducted from the amount otherwise payable
by Buyer at the Closing.
(d) If a prorated amount is payable by Seller and not
determinable at the Closing, it shall be billed by Buyer when
determinable and promptly paid by Seller to Buyer.
2.6 ALLOCATION. The parties hereto agree and acknowledge that
the Purchase Price shall be allocated by Seller, and Seller and Buyer agree to
file all Tax returns or reports including, without limitation, IRS Form 8594,
for their respective taxable years in which the Closing occurs and to reflect
the allocation of the Purchase Price on any such return or report and agree not
to take any position inconsistent therewith before any governmental agency
charged with the collection of any Tax or in any administrative proceeding.
III. REPRESENTATIONS AND WARRANTIES OF SELLER
Except as otherwise disclosed in Seller's Disclosure Memorandum, Seller
represents and warrants to Buyer as follows:
3.1 ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Arkansas. Seller
has all requisite power and authority to own, lease and operate the Business as
presently conducted and to enter into this Agreement and to perform its
obligations hereunder.
3.2 EXECUTION, DELIVERY AND PERFORMANCE OF AGREEMENT. The execution,
delivery and performance by Seller of this Agreement and the consummation of it
by the transactions contemplated hereby have been duly authorized by all
necessary action. This Agreement has been duly executed and delivered by Seller
and constitutes the valid and binding obligation of Seller, enforceable against
Seller, in accordance with its terms. The execution, delivery and performance of
this Agreement by Seller will not, with or without the giving of notice, the
passage of time, or both, violate, conflict with, result in a default, breach or
loss of rights under, or result in the creation of any lien, claim or
encumbrance pursuant to, any lien, encumbrance, instrument, agreement, or
understanding, or any law, regulation, rule, order, judgment or decree, to which
Seller is a party or by which it is bound or affected, respectively.
3.3 FINANCIAL STATEMENTS. Seller has previously caused to be furnished
to Buyer the Business' profit and loss statement for the 12-month period ending
December 31, 1996, and for
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the 11-month period ending November 30, 1997 (such profit and loss statements
are collectively referred to herein as the "Financial Statements"). The
Financial Statements taken as a whole present fairly the profit and loss of
Seller for the 12-month period ending December 31, 1996 and the 11-month period
ending November 30, 1997, respectively. Seller agrees to furnish to the Buyer
similar financial statements including the month of December 1997 by January 31,
1998.
Since December 31, 1996, there has not been any material adverse change
in the business, operations, properties, prospects, assets or condition of
Seller, and no event has occurred or circumstance exists that may result in such
a material adverse change.
3.4 ENCUMBRANCES ON THE ASSETS. Except as set forth on Seller's
Disclosure Memorandum, as of the Closing or no later than the date of the second
payment of the Purchase Price, there are no debts, liabilities, mortgages,
liens, security interests, charges, pledges, conditional sale agreements, leases
or adverse claims or restrictions, transfers or any other encumbrances
(hereinafter "Encumbrances") whatsoever against the Assets.
3.5 BUSINESS OPERATIONS AND CONDITION OF ASSETS. Seller acknowledges
that Buyer is purchasing the Assets for the express purpose of operating a
packaged ice manufacturing and distribution business. All items comprising the
Assets have been continuously used by Seller in Seller's Business and are now in
serviceable condition unless expressly disclosed to the contrary by Seller in
Seller's Disclosure Memorandum.
3.6 TITLE TO PERSONAL PROPERTY. Except as set forth in Seller's
Disclosure Memorandum, Seller has good, legal and marketable title to all of the
personal property comprising the Assets; at the Closing, Seller shall deliver to
Buyer good, legal and marketable title to the Assets free from all Encumbrances.
3.7 LITIGATION. Except as set forth in Seller's Disclosure Memorandum,
there is no pending claim, action, suit, proceeding or investigation (judicial,
governmental or otherwise), nor any order, decree or judgment in effect or
threatened, against or relating to Seller or the Assets, or the transactions
contemplated by this Agreement, and no event has occurred or circumstances exist
that will, or is reasonably likely to, give rise to or serve as a basis for the
commencement of any claim, action, suit, proceeding or investigation.
3.8 COMPLIANCE WITH LAWS. To the best of Seller's knowledge, Seller has
complied with all laws, rules, regulations, ordinances, orders, judgments and
decrees relating to the Assets. The ownership and use of the Assets and the
conduct of the Business as it specifically relates to the Assets does not
conflict with the rights of any other person.
3.9 TAXES. All returns, including estimated tax returns, required to be
filed after the Closing Date by or with respect to Seller with respect to Taxes,
that, if unpaid, might result in a lien upon any of the Assets, will be duly
filed and will be true, correct and complete, and all Taxes payable pursuant
thereto will be paid except such Taxes, if any, as may be contested in good
faith. No deficiency or adjustment in respect to any Taxes that have been
assessed against
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or with respect to Seller that, if unpaid, might result in a lien upon any of
the Assets remains unpaid.
All Taxes that relate to the Assets and that are payable by or
accruable by Seller or as to which Seller has any liability with respect to
events occurring on or before the Closing Date have been paid in full or have
been adequately provided for in the reserve for taxes on the books of Seller on
or before the Closing Date, except for income, franchise or capital stock taxes
and transfer, sales and other taxes arising in connection with the transactions
contemplated by this Agreement.
3.10 ENVIRONMENTAL. Seller has complied in all respects with all laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of federal, state, local, and foreign
governments (and all agencies thereof) which have jurisdiction over Seller and
its subsidiaries concerning pollution or protection of the environment, public
health and safety, or employee health and safety, including laws relating to
emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes, as the same relate to the Business, and
no action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against any of them alleging any
failure so to comply.
Without limiting the generality of the preceding sentence, Seller has
obtained and been in material compliance with all of the terms and conditions of
all permits, licenses, and other authorizations which are required under, and
has complied, in all material respects, with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
Schedules, and timetables which are contained in such laws, as the same relate
to the Business. Buyer, at Buyer's expense, shall have the right to conduct any
and all environmental investigations and surveys necessary to satisfy Buyer as
to the environmental condition of the Assets.
3.11 EMPLOYEE BENEFITS. All employee benefit plans (whether or not
covered by ERISA), deferred compensation or executive compensation plans for
employees, directors or independent contractors, and all other employee or
independent contractor arrangements or programs that are maintained or
contributed to by the Seller (collectively, the "Company Plans") have been
administered and operated in all material respects in compliance with their
terms, ERISA, if applicable, the Code and other applicable law. All Company
Plans that are intended to be qualified under Section 401(a) of the Code are so
qualified and a current favorable IRS determination letter exists for each such
plan and covers the amendments required by the Tax Reform Act of 1986. All
funded Company Plans are fully funded according to their terms and applicable
law. To the knowledge of the Seller, no prohibited transaction or breach of
fiduciary duty under ERISA has been committed by any fiduciary, disqualified
person or party in interest of any Company Plan. The Seller has no liability,
contingent or otherwise, under Title IV of ERISA.
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3.12 CONSENTS. Except as set forth in Seller's Disclosure Memorandum,
no consent or approval of any public body or authority and no consents or
waivers from other parties to material licenses, franchises, permits, agreements
or other instruments are required to be obtained by Seller as a result of the
transfer of the Assets contemplated by this Agreement to (i) avoid the loss of
any material license, franchise, permit or other instrument or the creation of
any lien or other claim on any Asset pursuant to the terms of any law,
regulation, order, agreement or other legal requirement binding upon Seller
relating to the Business or to which any such Asset may be subject, or (ii) to
enable Buyer to continue the operation of the Business substantially as
conducted prior to the Closing.
3.13 CONTRACTS. Seller is not a party to any contracts relating to the
Business or the Assets that are not terminable at will, other than those
contracts of Seller relating to the Business listed and described in Seller's
Disclosure Memorandum, or as listed and described in Schedule 2.1.
3.14 INSURANCE AND WARRANTIES.
(a) Insurance. Seller has provided proof of insurance to
satisfy this Section 3.14(a). Seller has not been advised (i) of any risks or
any fact or matter which might render such policies void or voidable, or (ii)
any cancellations of insurance coverage, or material increases in premium, or
other costs related to insurance, to take effect, or that are proposed, or that
may or will occur, following the Closing. To the best of Seller's knowledge, all
such policies are underwritten by reputable insurers, and there is no basis to
believe the insurers are or are likely to become financially unsound. Seller has
not been refused insurance or been notified of any cancellation or involuntary
reduction or other limitation of insurance during the past three years. Section
3.14(a) of Seller's Disclosure Memorandum lists all claims made or dues to be
made by Seller, and all matters for which a claim could reasonably have been but
was not made, against an insurer on account of events occurring since December
31, 1996.
(b) Warranties. Except as described in Section 3.14(b) of
Seller's Disclosure Memorandum, (i) Seller has not agreed to become responsible
for consequential damages or made any express warranties to third parties with
respect to any products distributed or sold by Seller and (ii) there are no
warranties (express or implied) outstanding with respect to any products other
than any such implied by law. A copy of each standard warranty of Seller with
respect to such product is included in Section 3.14(b) of Seller's Disclosure
Memorandum.
3.15 INTENTIONALLY OMITTED.
3.16 SUPPLIERS AND CUSTOMERS. Except as set forth in Section 3.16 of
Seller's Disclosure Memorandum, no customer of Seller has communicated to Seller
in any manner his or its intention to cease to do business with or trade with
Seller, or materially alter, modify or amend the terms with which it has
conducted business with Seller whether as a result of, or in contemplated of,
the consummation of the transactions contemplated by this Agreement.
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3.17 COMPLETE AND ACCURATE DISCLOSURE. No representation or warranty
made to Buyer in this Agreement or in connection with this transaction, to
include all previous negotiations between Buyer and Seller, contains or will
contain an untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make such representation or warranty not misleading
or necessary to enable a prospective purchaser of Seller's Business or the
Assets to make a fully informed decision. All documents and information which
have been or will be delivered to Buyer or its representatives by or on behalf
of Seller are and will be true, correct and complete copies of the documents
they purport to represent. There have been no material changes in Seller's
Business from the commencement of negotiations between Buyer and Seller and the
Closing of this transaction.
IV. REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 CORPORATE EXISTENCE; GOOD STANDING; CAPITALIZATION. Buyer is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Texas.
4.2 POWER AND AUTHORITY. Buyer has the requisite corporate power and
authority, and has been duly authorized, to enter into this Agreement and to
perform all of its obligations hereunder. Buyer represents and warrants to
Seller that this Agreement has been duly executed and delivered by Buyer, and
constitutes a valid and binding obligation in accordance with its terms.
V. COVENANTS OF SELLER
Seller hereby covenants and agrees as follows:
5.1 CONDUCT OF BUSINESS. Between the date hereof and the Closing Date,
Seller shall operate the Business in the ordinary course and continue normal
capital expenditures and maintenance in connection with the Assets prior to the
Closing Date, except (i) as may be permitted by this Agreement or (ii) as
necessary to consummate the transactions contemplated hereby.
5.2 INVESTIGATION BY BUYER.
(a) Between the date hereof and the Closing Date, Seller shall
(i) give Buyer and its authorized representatives and advisors access, at
reasonable times and on reasonable notice, to all items of personal property
comprising the Assets, books and records, personnel, offices, and other
facilities of the Assets, (ii) permit Buyer to make such inspections thereof as
Buyer may reasonably require, and (iii) cause its employees, and its advisors to
furnish to Buyer and its authorized representatives and advisors such financial
and operating data and other information with respect to the Business prepared
in the ordinary course of the Business as Buyer or its agent shall from time to
time reasonably request.
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(b) Seller agrees that, subsequent to the Closing Date, Buyer
and its agents and accountants will be permitted reasonable access, during
normal business hours, and as often as Buyer may reasonably request, consistent
with reasonable requirements of Seller, to the books and records of Seller and
its affiliates, insofar as such books and records contain information or data
pertaining to the Assets prior to the Closing Date to the extent such
information is not otherwise available at the offices or other facilities of the
Buyer, and Buyer shall have the right to make copies thereof and excerpts
therefrom.
5.3 CLOSING CONDITIONS. Seller will, to the extent within its control,
use its best efforts to cause the conditions set forth in Article VII to be
satisfied by the Closing Date.
5.4 CONFIDENTIALITY. From and after the date hereof, Seller will, and
will cause its officers, employees, principals; affiliates, representatives,
consultants and advisors, to hold in confidence all confidential information in
the possession of Seller, its officers, employees, principles, affiliates,
representatives, consultants and advisors concerning the Assets. Seller will not
release or disclose any such information to any person other than Buyer and its
authorized representatives. Notwithstanding the foregoing, the confidentiality
obligations of this Section shall not apply to information:
(a) which Seller is compelled to disclose by judicial or
administrative process, or, in the reasonable opinion of counsel, by
other mandatory requirements of law;
(b) which can be shown to have been generally available to the
public other than as a result of a breach of this Section; or
(c) which can be shown to have been provided to Seller by a
third party who obtained such information other than as a result of a
breach of a confidential relationship.
5.5 PUBLIC ANNOUNCEMENT. Seller and Buyer will cooperate in the public
announcement of the transactions contemplated by this Agreement, and, other than
as may be required by applicable law, no such announcement will be made by
either party without the consent of the other party, which consent shall not be
unreasonably withheld.
5.6 FURTHER ASSURANCES. Seller will use its best efforts to implement
the provisions of this Agreement, and for such purpose Seller, at the request of
Buyer, at or after the Closing Date, will, without further consideration,
promptly execute and deliver, or cause to be executed and delivered, to Buyer
such deeds, assignments, bills of sale, consents, documents evidencing title and
other instruments in addition to those required by this Agreement, in form and
substance satisfactory to Buyer, as Buyer may reasonably deem necessary or
desirable to implement any provision of this Agreement.
5.7 INSURANCE. Seller shall maintain insurance through the Closing Date
with financially sound and reputable insurers unaffiliated with Seller in such
amounts and against such risks as are adequate to protect the Assets and the
Business.
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5.8 SUPPLY AGREEMENT. At the Closing, Seller will enter into the Supply
Agreement in the form attached hereto as Exhibit 5.8 (the "Supply Agreement").
5.9 NONCOMPETITION AGREEMENT. At the Closing, Seller will enter into
and deliver to Buyer a noncompetition agreement in the form attached hereto as
Exhibit 5.9 (the "Noncompetition Agreement").
5.10 CESSATION OF BUSINESS/CHANGE OF NAME. Seller will cease to conduct
any business constituting the manufacturing, packaging, distribution and/or
storage of ice products under the name of "Sportsman's Ice."
5.11 OPINION OF LEGAL COUNSEL. At the Closing, Seller shall deliver to
Buyer a legal opinion of Seller's counsel in the form attached hereto as Exhibit
5.11.
5.12 DISCHARGE OF SELLER'S DEBTS. Seller hereby agrees and acknowledges
that Buyer is not assuming any of Seller's debts and that Seller shall remain
responsible for and will discharge all debts that relate to the Business and
were incurred by Seller prior to the Closing.
5.13 LEASE AGREEMENT. At the Closing, Seller will enter into the lease
agreement in the form attached hereto as Exhibit 5.13 (the "Lease Agreement").
5.14 POST CLOSING COOPERATION. For a period of up to one year from and
after the Closing, Seller agrees to provide Buyer with the office space which
Sportsman's Ice currently uses. In addition, for a period of at least thirty
(30) days after the Closing, Seller agrees to provide Buyer with assistance in
transitioning all of the accounting and bookkeeping of Sportsman's Ice.
VI. COVENANTS OF BUYER
6.1 ANCILLARY AGREEMENTS. At the Closing, Buyer will pay the purchase
price and enter into the Noncompetition Agreement, the Supply Agreement, the
Lease Agreement and all other ancillary documents required hereunder.
VII. CLOSING
7.1 TIME AND PLACE. The consummation of the sale and purchase of the
Assets and the execution of the Noncompetition Agreement (the "Closing") shall
take place at 10:00 a.m. on December 31, 1997 at the office of Xxxxxx & Xxxxxxx,
000 X. Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000. The date of the Closing
shall herein be referred to as the "Closing Date".
7.2 SELLER'S OBLIGATIONS AT CLOSING. At the Closing, Seller shall
execute, acknowledge (where appropriate) and deliver to Buyer in form reasonably
satisfactory to Buyer:
(a) an assignment or assignments assigning to Buyer the use
and possession of all that property comprising the Assets;
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(b) copies of all certificates of occupancy, licenses,
permits, authorizations, and approvals required by law and issued by
all governmental authorities having jurisdiction, if any, and the
original of each xxxx for current real estate and personal property
taxes, together with proof of payment thereof (if any of the same have
been paid);
(c) Bills of Sale, assignments or other suitable transfer
documents transferring to Buyer, the Assets, free and clear of all
liens and encumbrances, in form reasonably satisfactory to counsel for
Buyer which includes the form UCC-3 or other appropriate form
indicating release of liens by any secured party and that no action of
redress or reclamation shall be sought by any secured party against
Buyer or the Assets;
(d) the Noncompetition Agreement;
(e) the Supply Agreement;
(f) the Lease Agreement;
(g) intentionally omitted
(h) a Certificate of Compliance, in form and substance
satisfactory to Buyer, from Seller indicating that Seller has
materially complied with its obligations contained in this Agreement,
that all representations and warranties contained in this Agreement or
in any certificate required to be delivered in connection with this
Agreement shall be accurate at and as of the Closing with the same
force and effect as though made at Closing, and no material adverse
change with respect to the Seller has occurred.
(i) Seller shall deliver a copy of Seller's Opinion of Counsel
to Buyer.
7.3 BUYER'S OBLIGATIONS AT CLOSING. At the Closing, Buyer will:
(a) deliver to Seller one-half of the Purchase Price by check
or wire transfer less amounts needed to discharge Encumbrances, and
Buyer agrees to pay the remainder of the Purchase Price on or before
January 31, 1998;
(b) deliver to the holders of any Encumbrances the amounts
necessary to discharge the Encumbrances against the Assets;
(c) deliver to Seller executed counterparts of the
Noncompetition Agreement and all other ancillary documents required
hereunder;
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(d) deliver to Seller an executed counterpart of the Lease
Agreement, and the Supply Agreement;
(e) deliver a Certificate of Compliance from an officer of
Buyer indicating that Buyer has materially complied with its
obligations, representations and warranties contained in this
Agreement.
VIII. CONDITIONS TO CLOSING
8.1 CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of Buyer to
complete the transactions contemplated at the Closing shall be subject to the
satisfaction on or prior to the Closing Date of the following conditions:
(a) Performance. Each agreement and obligation of Seller to be
performed on or before the Closing Date shall have been duly performed
in all material respects;
(b) Representations and Warranties True; No Material Adverse
Change. The representations and warranties of Seller contained herein
or in any certificate required to be delivered in connection with this
Agreement shall have been accurate on the date hereof and shall be
accurate at and as of the Closing and since the date hereof there shall
have occurred no material adverse change in the business operations,
properties, prospects, Assets or condition of Seller;
(c) No Violation of Statutes, Orders, etc. There shall not be
in effect any decree or judgment enjoining Buyer from consummating the
transactions contemplated hereby;
(d) Third Party Creditors. Seller shall provide to Buyer prior
to January 31, 1998 documentation from all third party creditors
indicating that the third party creditors have released their
Encumbrances against the Assets and consented to Seller's conveyance of
the Assets to Buyer free and clear of all Encumbrances;
(e) Noncompetition Agreement. Seller shall have entered into
the Noncompetition Agreement;
(f) Opinion of Counsel. Seller shall have delivered an Opinion
of Counsel as described in Section 5.11 herein to Buyer; and
(g) Consents. Seller shall have delivered all consents
required for the transfer of Assets from Seller to Buyer.
8.2 CONDITIONS TO OBLIGATIONS OF SELLER. The obligation of Seller to
complete the transactions contemplated at the Closing shall be subject to the
satisfaction on or prior to the Closing Date of the following conditions:
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(a) Performance. Each agreement of Buyer to be performed on or
before the Closing Date shall have been duly performed in all material
respects;
(b) Representations and Warranties True. The representations
and warranties of Buyer contained herein shall have been true in all
material respects; and
(c) No Violation of Statutes, Orders, etc. There shall not be
in effect any decree or judgment enjoining Seller from consummating the
transactions contemplated hereby.
IX. INDEMNIFICATION
9.1 INDEMNIFICATION OF BUYER BY SELLER. Seller agrees to indemnify,
defend and hold harmless Buyer and Buyer's employees, agents, heirs, legal
representatives, and assigns from and against any and all claims, suits, losses,
expenses (legal, accounting, investigation and otherwise), damages and
liabilities, including, without limitation, tax liabilities (hereinafter,
collectively "Damages"), arising out of or relating to (i) any liability or
obligation of Seller, (ii) any inaccuracy of any representation or warranty set
forth in this Agreement or the breach of any covenant made by Seller in or
pursuant to this Agreement or, (iii) any and all Damages arising out of the
conduct of the Business or the ownership of the Assets prior to the Closing.
9.2 INDEMNIFICATION OF SELLER BY BUYER. Buyer agrees to indemnify,
defend and hold harmless Seller from and against only those Damages arising out
of or relating to (i) any inaccuracy or any representation or warranty of Buyer
set forth in this Agreement, (ii) the breach of any covenant made by Buyer in or
pursuant to this Agreement, or (iii) any and all Damages arising out of the
conduct of the Business or the ownership of the Assets by Buyer after the
Closing.
9.3 CLAIMS FOR INDEMNIFICATION. Whenever any claim arises for
indemnification hereunder, the indemnified party (hereafter the "Indemnified
Party") shall notify the indemnifying party (hereafter the "Indemnifying Party")
in writing by registered or certified mail promptly after the Indemnified Party
has actual knowledge of the facts constituting the basis for such claim (the
"Notice of Claim"). Such notice shall specify all material facts known to the
Indemnified Party giving rise to such indemnification right, and to the extent
practicable, the amount or an estimate of the amount of the liability arising
therefrom. The failure of any Indemnified Party to promptly notify the
Indemnifying Party shall not relieve the Indemnifying Party of its obligation to
indemnify in respect to such action and shall not relieve the Indemnifying Party
of any other liability which they may have to any Indemnified Party unless such
failure to notify the Indemnifying Party prejudices the rights of the
Indemnifying Party.
9.4 RIGHT TO DEFEND. If the facts giving rise to any such claim for
indemnification involve any actual or threatened claim or demand by any third
party against the Indemnified Party, the Indemnifying Party shall be entitled
(without prejudice to the right of the Indemnified Party to
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participate in the defense of such claim or demand at its expense through
counsel of its own choosing) to assume the defense of such claim or demand in
the name of the Indemnified Party at the Indemnifying Party's expense and
through counsel of its own choosing, which counsel shall be reasonably
satisfactory to the Indemnified Party, if it gives written notice to the
Indemnified Party within forty-five (45) days after receipt of the Notice of
Claim that the Indemnifying Party intends to assume the defense of such claim
and acknowledges its liability to indemnify the Indemnified Party for any losses
resulting from such claim; provided, however, that if the Indemnifying Party
does not elect to assume the defense of any claim, then (a) the Indemnifying
Party shall have the right to participate in the defense of such claim or demand
at its expense through counsel of its own choosing, provided the Indemnified
Party shall control the defense of such claim, (b) the Indemnified Party may
settle any such claim without the consent of the Indemnifying Party, however,
the Indemnifying Party may not settle any such claim without the prior written
consent of the Indemnified Party; and (c) Section 9.5 hereof shall be
inapplicable. Whether or not the Indemnifying Party does choose to so defend
such claim, the parties hereto shall cooperate in the defense thereof and shall
furnish such records, information and testimony and attend such conferences,
discovery proceedings, hearings, trials and appeals as may be requested in
connection therewith. To the extent Seller is the Indemnified Party for any
actual or threatened claim or demand by any third party, Seller shall have the
right to control the prosecution of any counterclaim or right related to such a
claim or demand, provided that Seller agrees to reasonably cooperate with Buyer
with respect to the prosecution of such counterclaim or right.
9.5 SETTLEMENT. Except as provided in Section 9.4, (i) the Indemnified
Party shall make no settlement of any claim that would give rise to liability on
the part of the Indemnifying Party under an indemnity contained in this Article
IX without the written consent of the Indemnifying Party, which consent shall
not be unreasonably withheld and (ii) the Indemnifying Party can settle without
the consent of the Indemnified Party only if the settlement involves only the
payment of money for which the Indemnifying Party will be fully liable. No other
settlement of any claim may be made without the consent of both the Indemnified
Party and the Indemnifying Party, which consent shall not be unreasonably
withheld.
9.6 EFFECT OF TERMINATION. Without limiting any other rights the
parties may have, the parties specifically agree that the covenants contained in
this Article will continue to be enforceable following termination of this
Agreement.
X. TERMINATION
10.1 TERMINATION. This Agreement and the transactions contemplated
hereby may be terminated at any time prior to the Closing Date by any of the
following:
(a) Mutual Consent. By mutual written consent of Seller and
Buyer;
(b) Misrepresentation or Breach. By Seller or by Buyer, if
there has been a material misrepresentation or a material breach of a
warranty or covenant herein or in any agreement required to be
delivered pursuant hereto on the part of the other party hereto;
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(c) Failure of Condition to Buyer's Obligations. By Buyer, if
all of the conditions set forth in Section 8.1 have not been satisfied;
(d) Failure of Condition to Seller's Obligations. By Seller,
if all of the conditions set forth in Section 8.2 have not been
satisfied;
(e) Court Order. By Seller or Buyer if consummation of the
transactions contemplated hereby shall violate any nonappealable final
order, decree or judgment of any court or governmental body having
competent jurisdiction;
(f) Material Adverse Change. By Buyer if any event has
occurred after the date hereof which is, or will result in a material
adverse change in the prospects, business or condition of the Assets.
10.2 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to
Section 10.1(a), all further obligations of Seller and Buyer under this
Agreement shall terminate without further liability of Seller or Buyer.
If Seller fails to consummate the transactions contemplated on its part
to occur on or before January 31, 1998, in circumstances whereby all conditions
of the Closing set forth in Section 8.2 have been satisfied in all material
respects or waived, Buyer shall be entitled to (i) require Seller to consummate
and specifically perform the transactions contemplated hereby, in accordance
with the terms of this Agreement, and to obtain from Seller any attorney fees
incurred in connection with procuring such specific performance or (ii)
terminate this Agreement and obtain reimbursement of its out-of-pocket expenses
incurred directly in connection with the negotiation, preparation and
performance of this Agreement.
If Buyer fails to consummate the transactions contemplated on its part
to occur on the Closing Date, in circumstances whereby all conditions of the
Closing set forth in Section 8.1 have been satisfied in all material respects or
waived, Seller shall be entitled to (i) require Buyer to consummate and
specifically perform the transactions contemplated hereby, in accordance with
the terms of this Agreement, and to obtain from Buyer any attorney fees incurred
in connection with procuring such specific performance or (ii) terminate the
Agreement and obtain reimbursement of its out-of-pocket expenses incurred
directly in connection with the negotiation, preparation and performance of this
Agreement.
10.3 RIGHT TO PROCEED. Notwithstanding anything in this Agreement to
the contrary, if any condition specified in Section 8.1 or 8.2 has not been
satisfied, Seller or Buyer, in addition to any other rights which may be
available to it, shall have the right to waive any such condition that is for
its benefit and to require the other party hereto to proceed with the Closing.
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XI. MISCELLANEOUS
11.1 EXPENSES. Legal, accounting and other costs and expenses incurred
in connection with this transaction shall be paid by the party incurring such
expenses.
11.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained in or made in connection with this Agreement shall
survive the Closing.
11.3 INUREMENT; ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, legal representatives and, if properly assigned, assigns. This
Agreement may not be assigned by any party without the written consent of the
other parties hereto.
11.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Schedules and
Exhibits hereto, and the related agreements referred to herein embody the entire
agreement of the parties hereto, and supersede all prior agreements and
understandings, with respect to the subject matter hereof.
11.5 SEVERABILITY. Any provision of this Agreement which is invalid,
unenforceable or illegal in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such invalidity, unenforceability or
illegality without affecting the remaining provisions hereof and without
affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
11.6 INCORPORATION OF EXHIBITS AND SCHEDULES. All Exhibits and
Schedules referenced in this Agreement, and any statements contained therein or
in any certificate or instrument delivered pursuant hereto, constitute an
integral part of this Agreement and shall be deemed made in this Agreement as if
set forth in full herein.
11.7 CAPTIONS AND HEADINGS; USE OF TERM "PERSON". Captions and headings
used herein are for convenience only, do not constitute a part of this
Agreement, and shall not be considered in construing this Agreement. Unless the
context otherwise requires, all article, section or subsection cross-references
are to articles, sections and subsections within this Agreement. As used herein,
the term "person" shall mean any corporation, partnership, venture,
proprietorship, trust, benefit plan or other entity or enterprise.
11.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARKANSAS.
11.9 NOTICE. All notices of requests, demands or other communications
required or to be given hereunder shall be delivered by hand, overnight courier,
facsimile transmission, or by United States Mail, postage prepaid, by registered
or certified mail (return receipt requested), to the addressed indicated below
and shall be deemed given when received by the addressee thereof:
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to Seller: Xxxxxxx Poultry Farms, Inc.
X.X. Xxx 000
000 X. Xxxx
Xxxxxx Xxxxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxx & Xxxxxxx
Attn: Xxxx Xxxxx, Esq.
000 X. Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
to Buyer: Golden Eagle Ice - Texas, Inc.
Attn: X.X. Xxxxx III, President
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
with a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
Attn: Xxxx Xxxxxxxxxx, P.C.
000 Xxxxxxx Xx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
or such other address or addresses as may be expressly designated by either
party by notice given in accordance with the foregoing provision.
11.10 AGENTS OR BROKERS. Seller and Buyer mutually represent and agree
with each other that no agents or brokers have been utilized in the solicitation
or negotiation of the sale of the Business and no fees, commissions or expenses
of any type shall be due or payable out of the proceeds of the purchase price by
either party to this Agreement.
11.11 TIME IS OF THE ESSENCE. Time is of the essence of this Agreement,
and all time limitations shall be strictly construed and rigidly enforced. The
failure or delay in the enforcement of any rights or interests granted herein
shall not constitute a waiver of any such right or interest or be considered as
a basis for estoppel.
11.12 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute the
same instrument.
11.13 ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by binding
arbitration in accordance with the Commercial Rules of the American Arbitration
Association by a single arbitrator to be located in Dallas, Texas, and judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof, and shall not be appealable.
[ASSET PURCHASE AGREEMENT SIGNATURE PAGE FOLLOWS]
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[ASSET PURCHASE AGREEMENT SIGNATURE PAGE]
Executed on the date first written above.
GOLDEN EAGLE ICE - TEXAS, INC.
By: [ILLEGIBLE]
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Print Name:
Print Title:
XXXXXXX POULTRY FARMS, INC.
By: XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
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Title: Vice Chairman of the Board
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