STOCK PURCHASE AGREEMENT
Among
VERMONT PURE SPRINGS, INC.,
XXXXX XXXX
and
EXCELSIOR SPRINGS WATER COMPANY, INC.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement, made and entered into this 27th day of
August, 1997 (the "Agreement") by and among VERMONT PURE SPRINGS, INC., a
Delaware corporation (the "Buyer"), XXXXX XXXX (the "Seller"), and EXCELSIOR
SPRINGS WATER COMPANY, INC., a New York corporation (the "Company").
WITNESSETH:
WHEREAS, the Company is engaged in the business of home and office
delivery of water products;
WHEREAS, the Seller owns 101.52 shares of the Company capital stock
(the "Stock"), representing ninety-four percent (94%) of the issued and
outstanding capital stock of the Company;
WHEREAS, the Seller desires to sell the Stock to the Buyer pursuant to
the terms and conditions set forth in this Agreement;
WHEREAS, the Buyer desires to purchase the Stock from the Seller on the
terms and conditions set forth in this Agreement; and
WHEREAS, the persons owning all of the stock of the Company other than
that owned by Seller ("Other Stockholders") and the persons owning all of the
notes of the Company (the "Noteholders") are also selling all of their stock and
notes to Seller as evidenced by individual Stock Purchase Agreements
(collectively, the "Stock Purchase Agreements") and Note Purchase Agreements
("collectively, the "Note Purchase Agreements") being executed contemporaneously
with this Agreement.
NOW, THEREFORE, the Buyer, the Company and the Seller, in consideration
of the agreements, covenants and conditions contained herein, hereby make the
following representations and warranties, give the following covenants and agree
to be legally bound hereby as follows:
ARTICLE I
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF THE SELLER
As an inducement to the Buyer to enter into this Agreement and to
consummate the transactions contemplated herein, the Seller represents and
warrants to the Buyer and agrees as set forth in this Article I. The
representations and warranties of the Seller are qualified by the information
set forth in the Schedules referred to in this Article I incorporated by
reference. Any disclosure made by Seller on one Schedule shall be deemed to be
disclosures for all purposes of this Agreement.
1.1 Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York
and is duly qualified to transact business as a foreign corporation and is in
good standing as such in the jurisdictions listed on Schedule 1.1 hereto, which
except as described on Schedule 1.1 hereto, are the only jurisdictions in which
the failure to so qualify would have a material adverse effect on the business
or financial condition of the Company. The Company has the corporate power and
authority and other authorizations necessary or required in order for it to own
or lease and operate its properties and to carry on its businesses as now
conducted.
1.2 Subsidiaries; Partnerships. The Company does not own any
interest in any other corporation, partnership, joint venture or other entity.
1.3 Authority. This Agreement and the transactions contemplated
hereby have been duly approved by all necessary corporate action and Seller has
the authority to execute, deliver and perform his obligations under this
Agreement. This Agreement, when executed and delivered by the Seller and
assuming the due execution hereof by the Buyer and the Company, will constitute
the valid, legal and binding agreement of the Company, and the Seller
enforceable in accordance with its terms. Except as described on Schedule 1.3
hereof, no consent, authorization, approval, order, license, certificate or
permit of or from or declaration or filing with, any Federal, state, local or
other governmental authority or any court or other tribunal (collectively, the
"Governmental Consents") is required in connection with the execution, delivery
or performance of this Agreement by the Company, or the Seller. Except as
described on Schedule 1.3, no consent of any affiliate of the Company or the
Seller or of any party to any, contract, agreement, instrument, lease, license,
arrangement or understanding to which the Company is a party, or to which any of
its properties or assets is subject, is required for the execution, delivery or
performance of this Agreement by the Company, or the Seller. The execution,
delivery and performance by the Company, or the Seller does not (i) violate,
result in a breach of, conflict with or (with or without the giving of notice or
the passage of time or both) entitle any party to terminate, modify or otherwise
change, in any material respect, the rights or obligations of the parties
thereunder or call a default under any such contract, agreement, instrument,
lease, license, arrangement, or understanding, (ii) violate or result in a
material breach of any term of the certificate of incorporation or other
organizational documents or by-laws of the Company or (iii) violate, result in a
breach of or conflict, in any material respect, with any law, rule, regulation,
order, judgment or decree binding the Company, or the Seller, or to which any of
their respective operations, businesses, properties, or assets are subject.
1.4 Capital Structure. The authorized capital stock of the Company
consists of 200 shares of common stock par value $ -0- per share, of which 108
shares are issued and outstanding (and none of which are held by the Company as
treasury stock). Except for this Agreement and the Stock Purchase Agreements,
there are no agreements, arrangements, options, warrants or rights or
commitments of any character relating to the issuance, sale, purchase or
redemption of any shares of capital stock of the Company. There is outstanding
no security or is validly authorized, validly issued, fully paid and
nonassessable, has not been issued and is not owned or held in violation of any
preemptive right; and is owned of record and beneficially by
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the Seller, free and clear of any liens, security interests, pledges, charges,
encumbrances, stockholders' agreements, voting trusts or restrictions of any
kind and the transfer and delivery of the Stock to the Buyer by the Seller as
contemplated by this Agreement will be sufficient to transfer good and
marketable record and beneficial title and ownership to such Stock to the Buyer
free and clear of liens, claims, encumbrances and restrictions of any kind.
1.5 Financial Statements. The Seller has furnished to the Buyer the
reviewed consolidated balance sheets of the Company for the years ended October
31, 1992, 1993, 1994, 1995 and 1996 and the related statements of operations,
statements of shareholder's equity and statements of cash flows for the periods
then ended, including the notes thereto (the 1992-1996 statements are
collectively defined herein as the "Financial Statements") and the unaudited
financial statements (balance sheet and profit and loss statement) at and for
the period ended March 31, 1997 (the "March 31 Balance Sheet"). The Financial
Statements and the March 31, 1997 Balance Sheet fairly present the respective
financial positions of the Company as of the respective dates thereof and the
results of operations for the respective periods covered thereby, and the
Financial Statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout all periods and in
accordance with the books and records of the Company. Notwithstanding anything
set forth in the Financial Statements or otherwise, there shall be no liability
on the part of the Seller for any inadequate reserve or other account with
respect to customer deposits.
There is set forth on Schedule 1.5 hereto a correct and complete
list of all (i) accounts, borrowing resolutions and deposit boxes maintained by
the Company at any bank or other financial institution (ii) the names of the
persons authorized to sign or otherwise act with respect thereto, and (iii)
powers of attorney for the Company.
1.6 Material Changes since March 31, 1997. Since March 31, 1997,
the business of the Company has been operated only in the ordinary course and,
whether or not in the ordinary course of business other than as disclosed in
this Agreement or the Schedules referred to herein there has not been, occurred
or arisen (i) any material adverse change in the financial condition of the
Company from that shown on the March 31 Balance Sheet; (ii) any damage or
destruction in the nature of a casualty loss, whether covered by insurance or
not, to any property or business of the Company; (iii) any amendment or
termination of any agreement other than in the ordinary course of business, or
cancellation or material reduction of any debt owing to the Company or waiver or
relinquishment of any right of material value to the Company; or (iv) any other
event or condition which materially and adversely affects the results of
operations or business, financial condition or property of the Company.
1.7 Availability of Assets and Legality of Use. Except as specified
in Schedule 1.7, the assets owned or leased by the Company constitute all of the
assets which are being used in its business, and such assets are in good and
serviceable condition (normal wear and tear excepted) and suitable for the uses
for which intended and such assets and their uses conform in all material
respects to all applicable laws; and except as specified in Schedule 1.7, the
Company has title to, or valid leasehold interests in, all of their respective
properties and assets,
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including those reflected on the March 31 Balance Sheet (other than those
disposed of for fair value in the ordinary course of business) free and clear of
all liens, mortgages, security interests, pledges, charges and encumbrances.
1.8 Accounts Receivable. All accounts receivable reflected on the
March 31 Balance Sheet for the Company and not collected at the date hereof,
have arisen from bona fide transactions in the ordinary course of the Company's
business. Except as set forth in Schedule 1.8, none of such receivables is
subject to counterclaims, set-offs or is in dispute and all of such accounts are
good and collectible in the ordinary course of business at the aggregate
recorded amounts thereof, subject to the allowance for possible losses shown on
such March 31 Balance Sheet.
1.9 Real Property and Leases. The Company does not own any real
property. Attached hereto as Schedule 1.9 are true, correct and complete copies
of every lease or agreement under which the Company is lessee or sublessee of,
or holds or operates, any real property or personal property owned by any third
party. Each of such leases and agreements is in full force and effect and
constitutes a legal, valid and binding obligation of the Company and, to the
best of the Seller's knowledge, the other parties thereto. The Company is not in
default in any material respect under any such lease or agreement nor has any
event occurred which with the passage of time or giving of notice or both would
constitute such a default. Except as set forth on Schedule 1.9, none of such
leases or agreements requires the consent of any party thereto to the
transactions contemplated by this Agreement.
1.10 Organizational Documents. The Company has delivered to the
Buyer (i) the Certificate of Incorporation and Bylaws of the Company, as
presently in effect, certified by the Secretary of the Company. The stock
ledgers and stock transfer books and the minute book records of the Company
relating to all issuances and transfers of stock by the Company and all formal
proceedings of the Company and its Board of Directors since its incorporation
made available to the Buyer are the original stock ledgers and stock transfer
books and minute book records of the Company or exact copies thereof.
1.11 Material Contracts and Leases. True, correct and complete
copies of every material contract, agreement, lease or other obligation or
commitment under which the Company, is the obligor, lessor or sublessor have
been made available to the Buyer and attached hereto as Schedule 1.11. Each of
such agreements and leases is in full force and effect and constitutes a legal,
valid and binding obligation of the parties thereto and is enforceable in
accordance with its terms except as enforcement of such agreement may be limited
by bankruptcy, insolvency or other similar laws affecting creditors' rights
generally. Except as set forth in Schedule 1.11 hereto, neither the Company nor
the other parties to such agreements and leases are in default under any such
lease or agreement in any material respect as it relates to the Company nor has
any event occurred which with the passage of time or the giving of notice or
both would constitute such a material default.
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1.12 Insurance. Attached hereto as Schedule 1.12 is a list and an
accurate description of all policies of insurance that are held or maintained by
or for the benefit of the Company as of the date hereof (including policy
numbers, nature of coverage, limits, deductibles, carriers, premiums and
effective and termination dates) The Company has complied with each of such
policies and has not failed to give any notice or present any known claim
thereunder. The Company has not received, and no event or omission within the
control of the Company has occurred which may cause it to receive notice that
any such policies will be canceled or will be reduced in amount or scope. True
and complete copies of all such policies have been delivered to the Buyer.
1.13 No Undisclosed Liabilities. The Company is not subject to any
material liability (including unasserted claims), absolute or contingent, which
is not shown or which is in excess of amounts shown or reserved for in the March
31 Balance Sheet other than liabilities of the same nature as those set forth on
the March 31 Balance Sheet and reasonably incurred in the ordinary course of
business after March 31, 1997.
The accounts payable, accrued expenses, the costs
including reasonable attorneys' fees and other expenses of resolution of all
claims, litigation, or disputes (whether or not disclosed) and taxes (whether or
not disclosed) (collectively, the "Payables") payable at (or relating to periods
prior to) the Closing Date will be less than the cash, accounts receivable and
inventory being retained by the Company (that is, those items used in the coffee
and five-gallon businesses)(collectively, the "Receivables"). The March 31, 1997
financial statement was internally prepared in accordance with generally
accepted accounting principles, and possibly did not include certain payables
that should have been booked. Buyer acknowledges that the subsequent booking,
but not later than the Closing Date, of a March 31, 1997 payable will not be
construed as an undisclosed liability, provided, that all of such bookings when
combined with all of the Payables included in the March 31, 1997 financial
statements do not exceed the Receivables at the Closing Date. Buyer further
acknowledges that the Company may book as Payables as of the Closing Date the
professional fees and expenses in connection with this transaction, but not in
excess of Thirty-Five Thousand Dollars ($35,000 in the aggregate. The Company
and the Seller acknowledge that, subsequent to the Closing, the Buyer will
conduct an audit of the Company, and the amounts of the actual Payables and
Receivables shall be determined by that audit.
Buyer acknowledges that the provisions for federal and
state corporate income taxes (collectively, the "Corporate Taxes") for the
periods beginning after October 31, 1996 have been accrued on a basis consistent
with the Company's existing methods of accounting and election. Buyer
acknowledges that any increases in Corporate Taxes for periods beginning after
October 31, 1996, if resulting from changes in accounting methods after the
Closing, shall not be deemed to be a Payable.
1.14 Litigation and Claims. Except as set forth on Schedule 1.14
hereto, there are no lawsuits, proceedings, claims, governmental or other
proceedings (formal or informal) or investigations pending or threatened with
respect to the Company or its businesses, properties or assets which may
reasonably be expected to have a material adverse effect on the Company.
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1.15 Tax Liabilities. Schedule 1.15 sets forth a correct
description of the procedures followed with respect to all payments by the
Company of taxes, including any amounts paid in 1997, the dates of such payments
and any amounts remaining to be paid in respect of any period prior to the
Closing Date. The amounts reflected as liabilities for taxes on Schedule 1.15
are sufficient for the payment of all unpaid Federal, state, county, local and
foreign taxes of the Company accrued and applicable to the period ended on such
balance sheet date and all years and periods prior thereto.
1.16 Employee Agreements. Attached hereto as Schedule 1.16 is a
true, correct and complete list of all employee benefit plans, contracts, and
arrangements, oral or written, including, but not limited to, union contracts,
employee benefit plans and severance plans, whereunder the Company has any
obligation (other than the obligation to make current wage or salary payments
terminable on notice of 30 days or less or normal policies concerning holidays,
vacations and salary continuation during short absence for illness or other
reasons) to or on behalf of its officers, employees or their beneficiaries or
whereunder any of such persons owes money to the Company.
1.17 Employee Relations. The Company has not engaged in any unfair
labor practice, unlawful employment practice or unlawful discriminatory practice
in the conduct of its business. The Company has complied in all material
respects with all applicable laws, rules and regulations relating to wages,
hours and collective bargaining and have withheld all amounts required to be
withheld from the wages or salaries of employees. The Company is not a party to
or threatened with or in danger of being a party to any labor dispute which
would materially interfere with the conduct of business. Set forth on Schedule
1.17 hereto is the name and total annual compensation (including bonuses) paid
by the Company to current active employees during the year ended December 31,
1996 and the annual compensation payable for 1997.
1.18 Benefit Plans. Schedule 1.18 contains a list of any "employee
pension benefit plan" or "employee welfare benefit plan" within the meaning of
Sections 3(1) and 3(2) of the Employee Retirement Income Security Act of 1974,
as amended, ("ERISA") established or maintained by the Company to which the
Company has made any contributions in 1996 or 1997 (collectively the "Employee
Benefit Plans"). The Company is not required, or was not required within the
immediately preceding five years, to make any contribution to any "multiemployer
plan" within the meaning of Section 3(7) of ERISA. The Company does not have any
liability in respect of any employee pension benefit plans established or
maintained and to which contributions are or were made by it to the Pension
Benefit Guaranty Corporation ("PBGC").
Schedule 1.18 also lists each deferred compensation plan, bonus
plan, stock option plan, employee stock purchase plan and any other employee
benefit plan, agreement, arrangement or commitment not required under the
preceding paragraph to be listed on Schedule 1.18 (other than normal policies
concerning holidays, vacations and salary continuation during short absences for
illness or other reasons) maintained by the Company.
Except as set forth on Schedule 1.18, (a) no employee pension
benefit plan, as defined in Section 3(2) of ERISA, maintained or contributed to
by the Company or in respect of which the Company is considered an "employer"
under Section 414 of the Internal Revenue Code of 1986, as amended (the "Code"),
(i) has incurred any "accumulated funding deficiency," as defined in Section 412
of the Code (whether or not waived), or (ii) has incurred any liability to PBGC,
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and (b) the Company has not breached any of the responsibilities, obligations or
duties imposed on it by ERISA or the Code with respect to any employee pension
benefit plan or employee welfare benefit plan maintained by it, which breach has
given rise to, or may in the future give rise to, an obligation to pay money,
including the obligation to make any required contribution to any employee
pension benefit plan for any plan year ending prior to the Closing Date. There
is no contribution due for any pension plan for the year in which the Closing
occurs. Except as set forth on Schedule 1.18, neither the Company nor any of its
affiliates or any "party in interest," as defined in Section 3(14) of ERISA, in
respect of any such plan has engaged in any non-exempted prohibited transaction
described in Sections 406 and 408 of ERISA or Section 4975 of the Code which
would result in a material adverse effect on the Company. Except as set forth on
Schedule 1.18, no reportable event, as defined in Section 4043 of ERISA, has
occurred with respect to any employee pension benefit plan maintained or
contributed to by the Company or in respect of which the Company is an employer
under Section 414 of the Code; and none of such plans has been terminated by the
plan administrator thereof or by the PBGC. The Company has not incurred any
unpaid liability for any pension plan covered under ERISA.
With respect to any employee pension benefit plan or employee
welfare benefit plan maintained by the Company, no action, suit, grievance,
arbitration or other manner of litigation, or claim with respect to the assets
of the plan (other than the routine claims for benefits made in the ordinary
course of plan administration for which plan administrative review procedures
have not been exhausted) are pending, threatened or imminent against or with
respect to the plan, the Company, or fiduciary (as defined in ERISA ss.3(21)) of
the plan (including any action, suit, grievance, arbitration or other manner of
litigation, or claim regarding conduct which allegedly interferes with the
attainment of rights under the plan), and the Seller has no knowledge of any
facts which would give rise to or could give rise to any action, suit,
grievance, arbitration or other manner of litigation, or claim.
1.19 Conflicts; Sensitive Payments. There are (a) no material
situations involving the interests of any of the Seller or any other stockholder
or (except as listed on Schedule 1.16 or Schedule 1.19) any officer or director
of the Company which may be generally characterized as a "conflict of interest,"
including but not limited to, the leasing of property to or from the Company or
significant direct or indirect interests in the business of competitors,
suppliers or customers of the Company; and (b) no situations involving illegal
payments or payments of doubtful legality from corporate funds of the Company
since January 1, 1993 to governmental officials or others which may be generally
characterized as a "sensitive payment."
1.20 Corporate Name. Except as set forth on Schedule 1.20
hereto, the Company owns and possesses, to the exclusion of the Seller and its
affiliates, all rights to the use of the name Excelsior Spring Water, Inc.
including, but not limited to, the right to use such names in advertising and
neither the Company nor the Seller has licensed the name to any party.
1.21 Trademarks and Proprietary Rights. All trademarks, trade
names, copyrights and applications therefor which are owned or exclusively used
or registered in the name of or
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licensed to the Company are listed and briefly described on Schedule 1.21, other
than as specified on Schedule 1.21, no proceedings have been instituted or are
pending or threatened which challenge the validity of the ownership by the
Company of any such trademarks, trade names, copyrights or applications. The
Company has not licensed anyone to use any of the foregoing or any other
technical know-how or other proprietary rights of the Company and neither the
Company nor the Seller has any knowledge of the infringing use of the any of
such trademarks and trade names or the infringement of any such copyrights by
any person except as set forth on Schedule 1.21. The Company owns all
trademarks, trade names, copyrights, processes and other technical know-how and
other proprietary rights now used in the conduct of its business and has not
received any notice of conflict with the asserted rights of others except as
specified in Schedule 1.21.
1.22 Brokers. Neither the Company nor the Seller has paid or become
obligated to pay any fee or commission to any broker, finder or intermediary for
or on account of the transactions provided for in this Agreement. Neither the
Company nor the Seller has any agreement or obligation whatsoever with entities
other than the Buyer regarding any proposed acquisition of the Company by any
such entity and none of them is engaged in any negotiations with any such entity
for any such acquisition.
1.23 Securities Laws.
(a) Seller acknowledges receipt of copies of the
Annual Report, the 1996 Form 10-K and the form 10-Q for the calendar quarter
ending March 31, 1997 of the Buyer.
(b) Seller acknowledges that any shares of capital
stock of Buyer received by him pursuant to this Agreement (the "Shares") have
been delivered to him pursuant to an exemption from the registration
requirements of the Securities Act of 1933, as amended (the "Act") and may not
be resold or otherwise transferred unless registered under the Act or unless an
exemption from the registration requirements of the Act is available. Rule 144
under the Act, permits sales or other transfers of unregistered securities by a
holder after a period of one (1) year from the date hereof, subject to
compliance with restrictions regarding amounts which may be sold, the manner of
sale and the other terms and conditions of that Rule.
(c) Seller acknowledges that:
(i) the Shares being acquired by him are
for his own account, for investment and without a view to the distribution or
resale thereof;
(ii) he has had access to all information
concerning Buyer, its business and this transaction that he deemed necessary to
make the determination to acquire the shares; he has had access to any
additional information deemed necessary by him to verify the accuracy of any
information given to him; and he has received all information which he has
requested;
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(iii) he has knowledge and experience in
financial matters and is capable of evaluating the risks associated with
ownership of the Shares and making an informed business decision with respect
thereto;
(iv) for a period of one year from the
date of this Agreement, Buyer may instruct any transfer agent for its common
stock not to permit transfer of the Shares to be made unless specifically
authorized by Buyer and during any calendar month thereafter, Payee may instruct
any transfer agent for its common stock not to permit transfers of more than
15,000 Shares to be made unless specifically authorized by Buyer ;
(v) the certificates for the Shares will
be legended to reflect the restrictions on the transferability of the Shares;
and
(vi) he has been represented by legal
counsel in connection with the Agreement and the receipt of the Shares by him.
1.24 No Omissions. None of the representations or warranties of the
Seller contained herein and, none of the information contained in the Schedules
referred to in this Article I is false or misleading in any material respect or
omits to state a fact herein or therein, necessary to make the statements herein
or therein in the circumstances in which they were made not misleading in any
material respect.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE BUYER
As an inducement to the Seller to enter into this Agreement and to
consummate the transactions contemplated herein, the Buyer represents and
warrants to the Seller and agrees as follows:
2.1 Organization. The Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
2.2 Authority. This Agreement and the transactions contemplated
herein have been duly approved by all necessary corporate action on the part of
the Buyer. This Agreement, when executed and delivered by the Buyer, and
assuming due execution hereof by the Company and the Seller will constitute the
valid and binding agreement of the Buyer enforceable in accordance with its
terms. Neither the execution nor the delivery of this Agreement, nor the
consummation of the transactions contemplated herein, nor compliance with nor
fulfillment of the terms and provisions hereof, will (i) conflict with or result
in a breach of the terms, conditions or provisions of or constitute a default
under the governing instruments of the Buyer, any instrument, mortgage,
agreement, judgment, order, award, decree or other restriction to which the
Buyer is a party or by which the Buyer is bound or any statute or regulatory
provisions affecting it or (ii) require
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the approval, consent, or authorization of or any filing with or notification to
any Federal, state or local court, governmental authority or regulatory body.
The Buyer has full power and authority to purchase the Stock pursuant to this
Agreement and to do and perform all acts and things required to be done by the
Buyer under this Agreement.
2.3 Legal Proceedings. There is no legal, administrative or
arbitration proceeding action or suit pending or to Buyer's knowledge threatened
which, if adversely determined, would materially and adversely affect the
financial condition, business or assets of the Buyer or the ability of the Buyer
to consummate the transactions contemplated herein.
2.4 Agreement Not in Breach of Other Instruments. The execution,
delivery and performance of this Agreement and the Consulting Agreement by the
Buyer will not: (i) violate, conflict with or constitute a default under any
term or provision of the Certificate of Incorporation or By-laws of the Buyer;
(ii) result in a default or breach of or give rise to any right of termination,
cancellation or acceleration, under the terms, conditions or provisions of any
note, bond, mortgage, deed of trust, commitment, indenture, lease, guarantee,
authorization, franchise, license, permit, agreement, contract or any other
instrument or obligation to which the Buyer is a party or by which it or any of
its properties or assets have been bound; (iii) violate any law, order, rite,
injunction, decree, statute, rule or regulation applicable to the Buyer or its
properties or assets; (iv) result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Buyer; (v) terminate or
adversely affect any permit, license or authorization of a governmental
authority used or required by the Buyer in the conduct of its business. The
consent or approval by or notice to any governmental or regulatory authority is
required in connection with the execution and delivery of this Agreement or the
Consulting Agreement entered into with Seller as defined below, the consummation
of the transactions contemplated hereby or the fulfillment of the terms hereof
or thereof.
2.5 Investment Purpose. The Buyer is acquiring the Stock for its
own account, for investment purposes only and not with a view to the
distribution thereof as that phrase has meaning under the Act and the rules and
regulations of the Securities and Exchange Commission (the "Commission"). The
Buyer shall not sell or make any other distribution of any of the shares in
violation of the provisions of any applicable laws and regulations, including,
without limitation the rules and regulations of the Commission and state
securities or "blue sky" laws.
2.6 Brokers. Neither the Buyer nor its representatives have paid or
become obligated to pay any fee or commission to any broker, finder or
intermediary for or on account of the transactions provided for in this
Agreement.
2.7 No Omissions. None of the representations or warranties of the
Buyer contained herein and none of the other information or documents furnished
to the Seller or the Company by the Buyer or its representatives in connection
with this Agreement is false or misleading in any material respect or omits to
state a fact herein or therein necessary to make the statements herein or
therein not misleading in any material respect; to the best knowledge of the
Buyer, there is no fact which adversely affects, or in the future is likely to
adversely affect,
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the business or assets of the Buyer in any material respect which has not been
disclosed in writing to the Seller or the Company.
ARTICLE III
COVENANTS OF THE SELLER
3.1 Non-Competition.
(a) In furtherance of the sale of the Stock to the Buyer,
upon the consummation of the transactions contemplated herein and more
effectively to transfer and protect the business of the Company, the Seller
agrees that for a period ending on the fifth anniversary of the date hereof, he
will not (i) directly or indirectly own, manage or operate a home and office
water delivery business anywhere in New York or in any other state in which the
Company presently conducts its business, that sells to any of the Company's
existing customers; provided that ownership of not more than five percent (5%)
of the issued and outstanding shares of a class of securities of a corporation,
the securities of which are traded on a national securities exchange or in the
over-the-counter market, shall not be deemed ownership of the issuer of such
shares for the purposes of this paragraph; or (ii) induce or attempt to persuade
any employee or agent of the Company to terminate such employment or agency
relationship in order to enter into any such relationship with the Seller or any
of his subsidiaries or affiliates or to enter into any such relationship on
behalf of any other business organization in competition with the Company or the
Buyer.
(b) Without limiting the right of the Buyer and any of
its successors or assigns to pursue all other legal and equitable rights
available to them for violation of the covenant set forth in Section 3.1(a)
above by the Seller, it is agreed that other remedies cannot fully compensate
the Buyer and its successors and assigns for such a violation and that the Buyer
and its successors and assigns shall be entitled to injunctive relief to prevent
violation or continuing violation hereof. It is the intent and understanding of
each party hereto that if, in any action before any court or agency legally
empowered to enforce this covenant, any term, restriction, covenant or promise
is found to be unreasonable and for that reason unenforceable, then such term,
restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency.
3.2 Use of Trademarks. From the date hereof, the Seller shall not
have the right to use any of the trademarks, trade names, or applications
therefor heretofore exclusively used or owned by the Company or to use any
trademarks or trade names similar thereto or designs imitative thereof except as
officers or agents of the Company in connection with its business prior to the
Closing. From the date hereof, Seller shall have any right to use or to
disclose, except in the ordinary course of business of the Company, to any
person, firm or corporation other than the Buyer, its employees, agents and
representatives, any trade or business secrets or client lists or other
proprietary information of the Company.
11
3.3 Additional Tax Information. The Seller agrees to deliver
promptly to the Buyer any copies of information in the Seller's possession
reasonably requested by the Buyer in connection with any tax returns relating to
the Company (whether filed prior to the Closing or to be filed hereafter). The
Seller shall have access to such records of the Company as shall reasonably be
required to enable the Seller to prepare any tax returns for periods ending on
or before the Closing.
3.4 Certain Tax Matters. The Seller shall cause the Company to pay
all Federal, state and local taxes, including without limitation, income,
profits, occupation, excise, property, sales, use and franchise taxes and
including interest and penalties on, based on, measured by or with respect to
the income, net worth or capital of the Company (the "Taxes") for all taxable
periods up to and including the Closing Date, except that the Seller need not
cause the Company to file Massachusetts tax returns or pay taxes to
Massachusetts prior to the Closing Date. An accrual of such taxes in the amount
of $15,000 has been included in the Company's Payables.
The Seller shall cause the Company to file all tax returns required
to be filed on or before the Closing Date with respect to the Company (and
amendments thereof) and all tax returns (and amendments thereof) with respect to
Taxes on income for tax periods ending on or before the Closing Date (except for
Massachusetts tax returns). The Buyer shall cause the Company to file all tax
returns required to be filed after the Closing Date with respect to the Company,
other than tax returns with respect to Taxes for tax periods ending on or before
the Closing Date.
ARTICLE IV
ACTION PRIOR TO THE CLOSING DATE
The parties hereto agree to take the following actions between the
date hereof and the Closing Date:
4.1 Confidential Nature of Information. The Buyer and the Seller
agree that, in the event that the transactions contemplated herein shall not be
consummated, each will treat in confidence all documents, materials and other
information which it shall have obtained during the course of the negotiations
leading to the execution of this Agreement, the investigation of the other party
hereto and the preparation of this Agreement and any other documents relating
hereto, and shall return to the other party all copies of non-public documents
and materials which have been furnished in connection therewith.
4.2 Accuracy of Representations and Warranties. The Seller shall
refrain from intentionally taking any action and shall cause the Company to
refrain from intentionally taking any action which would render any
representation and/or warranty contained in Article I of this Agreement
inaccurate at any time between the date hereof and the Closing Date. The Seller
will promptly notify the Buyer of any lawsuits, claims, proceedings or
investigations that, to the
12
knowledge of the Seller, may be brought, asserted or commenced against the
Company, or its officers or directors.
4.3 No Material Change in the Company. Prior to the Closing Date,
the Company shall not, and the Seller shall not, without the prior written
approval of the Buyer, cause the Company to (i) make any material change in the
business or operations of the Company; (ii) make any material change in the
accounting policies applied in the preparation of the financial statements
referred to herein; (iii) declare any dividends on its issued and outstanding
shares of capital stock, or make any other distribution of any kind in respect
thereof; (iv) issue, sell or otherwise distribute any authorized but unissued
shares of its capital stock or effect any stock split or reclassification of any
such shares or grant or commit to grant any option, warrant or other rights to
subscribe for or purchase or otherwise acquire any shares of capital stock of
the Company or any security convertible or exchangeable for any such shares; (v)
purchase or redeem any of the capital stock of the Company; (vi) incur or be
liable for indebtedness to Seller or the other stockholders other than in the
ordinary course of business; (vii) make any material change in the base
compensation of officers or key employees of the Company; (viii) enter into any
contract, license, franchise or commitment other than in the ordinary course of
business, or waive any rights of substantial value; or (ix) enter into any other
transaction affecting in any material respect the business of the Company other
than in the ordinary course of business and in conformity with past practices,
or as contemplated by this Agreement. Notwithstanding the above, on or prior to
the Closing Date, the Company may sell any or all of its tangible assets other
than those listed on Exhibit A hereto to any buyer for nominal consideration.
4.4 No Public Announcement. Neither the Company nor the Buyer
shall, without the approval of the other, make any press release or other public
announcements or filing concerning the transactions contemplated by this
Agreement, except as and to the extent that any such party shall be so obligated
by law, in which case the other party shall be advised thereof and given an
opportunity to comment thereon.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER
The obligations of the Buyer under this Agreement to purchase and
pay for the Stock and the Notes shall, at the option of the Buyer, be subject to
the satisfaction, on or prior to the Closing Date, of the following conditions:
5.1 Buyer shall have entered into a Stock Purchase Agreement
satisfactory to it with each of the Other Stockholders of the Company for the
purchase in the aggregate (including the Stock being purchased hereunder) of all
of the issued and outstanding capital stock of the Company, Buyer shall have
entered into a Note Purchase Agreement satisfactory to it with each of the
Noteholders, and each of the Other Stockholders and Noteholders shall have
performed all of their obligations under their respective Stock Purchase
Agreements and Note Purchase
13
Agreements and are ready, willing and able to deliver to Buyer their stock and
notes on the Closing Date.
5.2 There shall have been no material breach by the Company or the
Seller in the performance of any of their covenants and agreements herein, each
of the representations and warranties of the Seller and the Company contained in
this Agreement shall be true and correct in all material respects on the Closing
Date as though made on the Closing Date and there shall have been delivered to
the Buyer a certificate or certificates to that effect, dated the Closing Date
and signed by the Seller and the President of the Company.
5.3 The Company will have resolved, to the satisfaction of the
Buyer, all of the matters required to be listed on any Schedule pursuant to
Article I of this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
The obligations of the Seller under this Agreement to deliver the
Stock shall, at the option of the Seller, be subject to the satisfaction, on or
prior to the Closing Date, of the following conditions:
There shall have been no material breach by the Buyer in the
performance of any of its covenants and agreements herein, each of the
representations and warranties of the Buyer contained or referred to in this
Agreement shall be true and correct in all material respects on the Closing Date
as though made on the Closing Date and there shall have been delivered to the
Seller a certificate or certificates to that effect, dated the Closing Date and
signed on behalf of the Buyer by its President.
ARTICLE VII
PURCHASE PRICE AND CLOSING
7.1 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the office of the attorney for
Seller on August 27, 1997 or such other date as shall be mutually agreed to by
the Seller and the Buyer (the "Closing Date").
7.2 Purchase and Sale of the Stock.
(a) On the Closing Date, the Seller shall sell to the
Buyer the Stock for the following consideration:
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(i) cash payable by wire transfer in the
amount of $1,220,918.70 to the following account:
Chase Bank 0 Xxx Xxxx Xxxxx Xxx Xxxx,
XX 00000 ABA #000000000 FBO First
Albany Corporation A/C# 000-000-000
FFC to Xxxxx Xxxx FAC Account No.
3036-7552
(ii) note payable to the Seller made by
the Buyer in the amount of $470,000.00 plus fifty percent (50%) of the
difference between the amounts listed on Exhibit C hereto as being owed to all
of Company's creditors and the amount that such creditors have agreed, prior to
the Closing Date, to accept in full settlement of all claims against the
Company, as evidenced by written agreements and releases acceptable to counsel
for the Buyer. The Note shall be for a term of five (5) years at the prime rate
of interest as reported from time to time in the Wall Street Journal with equal
installments of principal and interest based on a 10-year amortization and a
balloon payment due at the expiration of the term of the note;
(iii) an aggregate of the sum of 94,000
shares of common stock of Vermont Pure Holdings, Ltd. ("Holdings"), the parent
corporation of Buyer, plus the number of shares of Holdings' stock that is
obtained by dividing $305,000 by the Closing Date Price of 2 9/32 in the form of
certificates issued in the name of the Seller. Stock issued pursuant to this
paragraph shall be restricted as described in Section 1.23(c) hereof. Closing
Date Price shall be 2 9/32.
(b) Seller shall enter into with the Company a
consulting agreement (the "Consulting Agreement") in the form of Exhibit B
hereto that will pay Seller compensation of $15,000 per year plus health and
welfare benefits including medical insurance and dental insurance at an
estimated cost of $5,000 annually, and during the term of the Contract Period
(as defined in the Consulting Agreement), Seller shall be entitled to use the
car currently leased by the Company for Seller's use. At the end of the Contract
Period, Seller shall have the option to purchase the car for $1.
7.3 Deliveries by the Seller. At the Closing, the Seller shall
sell, assign, transfer and convey to the Buyer all of the Stock of the Company
and shall deliver, at the Closing the following:
(a) A certificate or certificates representing the
Stock, together with fully executed and witnessed stock power (in blank)
attached thereto with signature guaranteed by an institution that is a
participant in the Securities Transfer Agents Medallion Program.
15
(b) An opinion dated the Closing Date hereof from
counsel for the Seller, in form and substance satisfactory to the Buyer and its
counsel, to the effect that:
(i) The Company is duly incorporated,
validly existing and in good standing under the laws of the State of New York;
the Company has full corporate power and authority to own or lease and operate
its properties and to carry on its business as now conducted; and the Company
has no subsidiaries.
(ii) The authorized capital stock of the
Company consists of 200 shares of common stock, par value $ -0- per share, of
which 108 shares have been issued and are outstanding and are owned of record by
the Seller and the Other Stockholders who are entering into Stock Purchase
Agreements with Buyer; all of the issued and outstanding shares of capital stock
of the Company as of the Closing are validly issued, fully paid and
nonassessable.
(iii) This Agreement and the transactions
contemplated herein have been duly approved by all necessary corporate action of
the Company. This Agreement has been duly and validly executed and delivered by
the Seller and such Agreement, assuming due execution by the Buyer, is the valid
and binding agreement of the Seller enforceable against the Seller in accordance
with its terms except as enforcement of such agreement may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally.
(iv) The Seller has full power and
authority to execute and deliver the Agreement and to perform its obligations
hereunder. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, (a) violates or conflicts
with or results in the breach of the terms, conditions or provisions of, or
constitutes a default under, the Certificate of Incorporation or the Bylaws of
the Company or any agreement or instrument known to such counsel to which the
Company or the Seller is a party or by which either of them is bound or (b)
requires the consent, approval or authorization of or any filing with or
notification to any Federal, state or local court, governmental authority or
regulatory body not already obtained or made, as the case may be.
(v) To the best of such counsel's
knowledge there is no action, suit, proceeding or investigation pending or
threatened against the Seller or the Company, other than actions, suits,
proceedings or investigations described in Schedule 1.14, Schedule 1.17 or
Schedule 1.21 hereto, which might result in a material adverse change in the
properties, business or assets or in the condition financial or otherwise of the
Company which questions the legality, validity or propriety of this Agreement or
of any action taken or to be taken by the Company or the Seller pursuant to or
in connection with this Agreement.
(vi) The Seller is the lawful owner of the
Stock, to the best of such counsel's knowledge, free and clear of all adverse
claims, with unrestricted right and power to transfer and deliver the Stock to
the Buyer. The Seller has executed and delivered to the Buyer such instruments
as are sufficient in form to vest good and marketable title to the Stock in the
Buyer free and clear of all adverse claims.
16
In giving such opinion, counsel for the Seller may rely, as to
matters of fact, upon certificates of officers of the Company.
(c) The resignations immediately prior to the Closing
of (i) each director of the Company and (ii) each officer of the Company as
requested by the Buyer.
7.4 Deliveries of the Buyer. At the Closing, the Buyer shall
deliver to the Seller an opinion of Ledgewood Law Firm, P.C., counsel for the
Buyer, in form and substance satisfactory to the Seller and its counsel, to the
effect that (i) The Buyer is a corporation duly organized, validly existing and
in good standing under the laws State of Delaware; and (ii) this Agreement and
the transactions contemplated herein have been duly approved by all necessary
corporate action of the Buyer and such Agreement, assuming due execution by the
Seller, is the valid and binding agreement of the Buyer enforceable against the
Buyer in accordance with its terms except as enforcement of such agreement may
be limited by bankruptcy, insolvency or other similar laws affecting creditors'
rights generally.
In giving such opinion, counsel for the Buyer may rely, as to
matters of fact, upon certificates of officers of the Buyer.
7.5 Use of Premises; Rent. The Seller is also the owner of premises
currently used by the Company. Seller agrees to rent the premises to the Buyer
for successive one-month terms until the premises are vacated by the Buyer upon
fourteen (14) days' written notice to the Seller of its intention to so vacate.
The Buyer agrees to pay rent for the use of such premises at the rate of Four
Thousand Dollars ($4,000) for each full month of such use and to rent the
equipment located at said premises at the rate of Five Thousand Dollars ($5,000)
for each full month of such use. Payments of rent for periods prior to January
1998 shall be due January 2, 1998; rent for subsequent periods shall be due on
the fifteenth day of each month. Payments of rent for any period less than a
full month shall be pro-rated.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated by the Buyer if
any of the representations, warranties or covenants of the Company or the Seller
have been breached or if the purchase and sale has not been consummated, for any
reason, by August 31, 1997.
If this Agreement is terminated, each party shall pay its own
expenses.
17
ARTICLE IX
SURVIVAL OF OBLIGATIONS; INDEMNIFICATION; LEGAL FEES
9.1 Survival of Obligations. All representations and warranties
made herein by the Seller and his obligations to be performed pursuant to the
terms hereof, shall survive the Closing hereunder and shall terminate three
years after the Closing; provided, that, (i) the representations and warranties
contained in Section 1.15 shall expire six years after the Closing, or with
respect to any dispute with the Internal Revenue Service, upon the later to
occur of the following (x) such dispute's final resolution and the payment of
all taxes, interest and penalties arising therefrom and (y) the expiration of
the applicable statute of limitations; and (ii) the representations in Section
1.4 shall not terminate.
9.2 Indemnification. (a) The Seller agrees to indemnify and hold
harmless the Buyer, the Company and their subsidiaries, affiliates, successors
and assigns from and against any and all (x) liabilities, losses, costs,
deficiencies or damages and any and all amounts paid in settlement ("Loss") and
(y) reasonable attorneys' and accountants' fees and expenses, court costs and
all other reasonable out-of-pocket expenses ("Expense"), incurred by the Buyer
or the Company, in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim asserted in good faith in connection with
or arising from (i) any claim that the Seller or any of the stockholders did not
convey to the Buyer good and marketable title to capital stock of the Company
owned by them, (ii) any breach by the Seller of any of his covenants in, or
failure of the Seller to perform any of his obligations hereunder, (iii) any
breach of any warranty or the inaccuracy of any representation of the Company or
the Seller contained or referred to in this Agreement or in any certificate
delivered by or on behalf of the Seller, or (iv) any claim brought by any of the
Other Stockholders or Noteholders relating to the amount, form or timing of any
consideration received by him or her under the applicable Stock Purchase
Agreement or Note Purchase Agreement; provided, however, that prior to Buyer
expending in excess of One Thousand Dollars ($1,000) investigating, preparing,
or defending against any claims, Buyer shall give Seller written notice of such
claims and Seller shall have a period of thirty (30) days to settle or otherwise
resolve such claim. Buyer agrees to keep Seller reasonably informed, not less
than quarterly, of any Expenses being incurred.
(b) The Buyer agrees to indemnify and hold harmless
the Seller from and against any and all Loss and Expense incurred by the Seller
in investigating, preparing or defending against any litigation, commenced or
threatened, or any claim asserted in good faith in each case net of any
insurance received by the Seller in connection with or arising from (i) any
breach by the Buyer of any of its covenants in, or any failure of the Buyer to
perform any of its obligations under, this Agreement or (ii) any breach of any
warranty or the inaccuracy of any representation of the Buyer contained or
referred to in this Agreement or in any certificate delivered by or on behalf of
the Buyer pursuant hereto.
(c) If a party incurring a Loss of Expense (an
"Indemnified Person") has suffered or incurred any Loss or Expense, the
Indemnified Person shall so notify the party
18
responsible therefor (an "Indemnifying Person") promptly in writing describing
such Loss or Expense, the amount thereof, if known, and the method of
computation of such Loss or Expense, all with reasonable particularity and
containing a reference to the provisions of this Agreement or any certificate
delivered pursuant hereto in respect of which such Loss or Expense shall have
occurred. If any action at law or suit in equity is instituted by or against a
third party with respect to which an Indemnified Person intends to claim any
liability or expense as Loss or Expense under this Section 9.2, such Indemnified
Person shall promptly notify the Indemnifying Person of such action or suit.
(d) An Indemnified Person shall have the right, but
not the obligation, to participate at its own expense in the defense of any
third party claim, action or suit with counsel of its own choosing, but the
Indemnifying Person shall be entitled to control the defense unless the
Indemnified Person has relieved the Indemnifying Person from liability with
respect to the particular matter. In the event that the Indemnifying Person
shall fail timely to defend, contest or otherwise protect against such claim,
the Indemnified Person shall have the right, but not the obligation, to defend,
contest or otherwise protect against the same or, on not less than thirty (30)
days' written notice to the Indemnifying Person, make any compromise or
settlement thereof, and such compromise or settlement shall be binding on the
Indemnifying Person for purposes of indemnification under this Article IX unless
the Indemnifying Person objects thereto within the thirty day period aforesaid.
(e) The Buyer and/or the Company shall have the right
to set off against any amounts due the Seller (including cancellation of Shares
issued pursuant to Article VII with any Shares cancelled being valued at the
Closing Date Price) with respect to any amounts owed to the Buyer by the Seller
as a result of the indemnification provided in this Section 9.2. Provided,
however, that no offset may be made against any payment due on the promissory
note issued pursuant to Section 7.2(ii) hereof without the consent of Seller
except that offset may be made against the last payment of principal and
interest due thereunder without consent and offset may be made against other
payments if there has been a determination by an arbitrator, selected in
accordance with the rules of the American Arbitration Association in an
arbitration proceeding that the parties agree shall be held in Vermont, that a
third party has made a claim against the Buyer or the Company that is reasonably
likely to result in a valid claim for indemnification against the Seller under
this Agreement.
(f) Notwithstanding the foregoing, in no event shall
an Indemnifying Person be responsible for any indemnity hereunder until the
aggregate Loss or Expense of the Indemnified Person exceeds the sum (as
determined by the audit described in Section 1.13 hereof) of Ten Thousand
Dollars ($10,000) plus (or minus if Payables exceed Receivables) the excess of
the Receivables over the Payables (after adjustment for any reduction reflected
in an increased principal amount of the note being issued pursuant to Section
7.2(ii) hereof) (the "Minimum Amount"). Once such Loss or Expense has exceeded
the Minimum Amount, the Indemnified Person shall be entitled to Ten Thousand
Dollars ($10,000) as well as amounts in excess of the Minimum Amount.
19
9.3 Legal Expenses. In the case of any action brought by any party
hereto under this Agreement, the notes issued pursuant to Section 7.2 hereof or
the Consulting Agreement, the prevailing party shall be entitled to be
reimbursed by the losing party an amount equal to all of the prevailing party's
reasonable legal or other professional fees and expenses. In the case of a
judgment of less than that sought in any formal complaint, the party obtaining
the judgment shall be deemed to be the prevailing party to the extent of the
amount of the judgment divided by the amount sought and shall be deemed to be
the losing party with respect to the balance of the claim.
ARTICLE X
MISCELLANEOUS
10.1 Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given (a) three (3)
days after having been sent by certified or registered mail, return receipt
requested, (b) one (1) business day after having been sent by regional
recognized courier guarantying next business day delivery, or (c) upon delivery
if given by hand delivery against written receipt, addressed as follows:
If to the Buyer:
Vermont Pure Springs, Inc.
00 Xxxx Xxx Xxx Xxxx
Xxxxx Xxxxxx, XX 00000
With a copy to:
Xxxxx X. Xxxxx, Esq.
Ledgewood Law Firm
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
If to the Seller:
Xxxxx Xxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
With a copy to:
Xxxxxx Xxx, P.C.
Attorney at Law
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
20
10.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the provisions on conflicts of law.
10.3 Successors and Assigns. This Agreement shall be
bindingupon and inure to the benefit of the parties hereto and their respective
successors and assigns
10.4 Severability. In case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein unless the deletion of such provision
or provisions would result in such a material change as to cause enforcement of
the terms hereof to be unreasonable.
10.5 Expenses. Except as expressly stated otherwise herein, each
party hereto shall pay its own expenses (including, without limitation, legal
and accounting fees and expenses) incident to its negotiation and preparation of
this Agreement and to its performance and compliance with the provisions
contained herein.
10.6 Titles and Headings. Titles and headings to Articles and
Sections herein are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
10.7 Exhibits and Schedules. The Exhibits and Schedules to this
Agreement shall be construed with and read as an integral part of this Agreement
to the same extent as if the same had been set forth verbatim herein.
10.8 Entire Agreement; Amendments and Waivers. This Agreement,
including the Schedules hereto, contains the entire understanding of the parties
hereto with regard to the subject matter contained herein. The parties hereto,
by mutual agreement in writing, may amend, modify and supplement this Agreement.
The failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the rights of
such party thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any other or
subsequent breach.
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
VERMONT PURE SPRINGS, INC.
Attest: By:
President
Secretary
EXCELSIOR SPRINGS WATER COMPANY,
INC.
Attest: By:
President
Secretary
Witness: SELLER:
Xxxxx Xxxx
RAbt\Vermont\EgerStoc.Ag5
22
EXHIBIT A
LIST OF TANGIBLE ASSETS THAT MAY NOT BE SOLD
EXHIBIT B
CONSULTING AGREEMENT
EXHIBIT C
TERM NOTE
