Contract
EX-10.1
2
buckeye_8k-ex1001.htm
ASSET PURCHASE AGREEMENT
Exhibit 10.1
ASSET
PURCHASE AGREEMENT
This Asset Purchase Agreement (this “Agreement”) dated as of January 2, 2007 is
among Energy King, Inc., a California corporation (the "Buyer"), Xxxxxxx
Plumbing, Inc., a California corporation also doing business as Xxxxxxx Heating
and Air (the "Seller"), and Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx
(collectively, the "Stockholders"; the Seller and the Stockholders are sometimes
collectively referred to as the “Seller Parties”).
RECITALS:
WHEREAS, the Seller is engaged in the business of providing plumbing,
heating, ventilating, air conditioning and indoor air quality services and
goods
and other related services and goods (the "Business"); and
WHEREAS, the Buyer desires to purchase from the Seller, and the
Seller Parties desire to have the Seller sell to the Buyer, substantially
all of
the assets of the Seller, including those used in connection with the Business,
on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
Section
1.
Sale of Assets and Assumption of Liabilities.
1.1. Purchase and Sale of
Assets. Subject to the conditions set forth below, at the
Closing (as defined in Section 2.3), the Seller will sell and
deliver to the Buyer, and the Buyer will purchase from the Seller, all of
the
Seller's right, title and interest in and to the Purchased Assets. As used
in this Agreement, the term “Purchased Assets” shall mean all of the assets,
properties, rights and interests of the Seller of whatever kind or nature,
real
or personal, tangible or intangible and wherever located, as such assets
may
exist at the time of the Closing (other than the Excluded Assets described
in
Section 1.2), including any used in or held for use by the
Business and any listed on Schedule 1.1.
1.2. Excluded
Assets. Notwithstanding Section 1.1, the
Purchased Assets will not include the following (collectively, the "Excluded
Assets"): (a) the Seller's rights under this Agreement; (b) the Seller's
corporate minute books, corporate seal, charter documents and stock records;
(c)
any cash, checks or cash equivalents (other than any representing any customer
deposits which are required to be paid to Buyer); (d) any accounts and accounts
receivable of the Seller with respect to any projects which were fully completed
and billed prior to the Closing; (e) the Seller’s bank accounts; (f) any
non-transferable licenses; (g) any employee benefit plans; (h) any leased
or
owned real property, any buildings thereon, and any related rights and
authorizations associated with the fee ownership thereof, if any; (i) any
rights
under any insurance contracts maintained by the Seller to the extent related
to
the Excluded Liabilities (as defined in Section 1.4); (j) the
assets specifically identified on Schedule 1.2; and (k) any
business records and files to the extent related to the foregoing Excluded
Assets or the Excluded Liabilities.
1.3. Assumption of
Liabilities. Subject to the terms and conditions set forth in
this Agreement, at the Closing, as part of the consideration for the purchase
and sale of the Purchased Assets, the Buyer shall assume, and shall thereafter
pay and perform as they become due, subject to all lawful defenses and setoffs,
the following liabilities and obligations of Seller in accordance with their
respective terms (the “Assumed Liabilities”), and no others:
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(a) Liabilities and
obligations of the Seller from and after the Closing Date under the preventative
maintenance agreements, maintenance agreements and service agreements listed
on
Schedule 1.3(a) (but not any liability or obligation resulting
from any breach or violation thereof on or prior to the Closing or any act,
omission, event, occurrence or circumstance occurring or existing on or prior
to
the Closing);
(b) Liabilities and
obligations of the Seller from and after the Closing Date under the personal
property leases, and the contracts and other agreements listed on
Schedule 1.3(b) (but not any liability or obligation resulting
from any breach or violation thereof on or prior to the Closing or any act,
omission, event, occurrence or circumstance occurring or existing on or prior
to
the Closing);
(c) Liabilities and
obligations of the Seller on the Closing Date for Customer Deposits, but
only to
the extent such Customer Deposits are set forth on an itemized list provided
at
the Closing and the aggregate amount of such Customer Deposits has been
delivered to the Seller as part of the Purchased Assets;
(d) Liabilities and
obligations of the Seller after the Closing Date under the terms and conditions
of the warranty arrangements provided by the Seller in the ordinary course
of
the Business for installations and service prior to the Closing Date, but
only
(i) until the date which is one year after the date of the applicable
installation or service, (ii) provided that the aggregate amount of all costs
and expenses incurred and amounts paid by Buyer with respect to any job
(including without limitation all direct or indirect costs of labor) shall
not
exceed $1,000, and (iii) provided that such assumed liabilities and obligations
shall not include any liabilities or obligations for improper design, design
defects or economic loss or injury; and
(e) Liabilities and
obligations of the Seller for the one day’s salary and other wages earned by or
payable to employees that accept offers of employment from the Buyer (that
are
other than the Stockholders or their relatives) for January 1, 2007 and any
payroll taxes with respect thereto, provided that the Buyer shall be entitled
to
receive all payments, income and revenues of the Seller from any work performed
on January 1, 2007.
1.4. Excluded
Liabilities. Except as specifically assumed pursuant to
Section 2.3, the Buyer will not assume or be responsible
for
any obligation or liability of the Seller, and the Seller will continue to
be
responsible for all its obligations and liabilities, whether known or unknown,
fixed or contingent, liquidated or unliquidated and secured or unsecured,
whether arising prior to, at or subsequent to the Closing, whether or not
related to the Business and whether or not disclosed to the Buyer (collectively,
the "Excluded Liabilities"). The Seller Parties agree to pay and discharge
or cause to be paid and discharged all Excluded Liabilities in accordance
with
their terms.
Section
2.
Purchase Price and Closing.
2.1.
Purchase Price. The aggregate consideration for the sale
of the Purchased Assets to the Buyer (the “Purchase Price”) will be as follows:
(i) Three Hundred Thousand Dollars ($300,000) (the “Cash Amount”), (ii) 600,000
shares of restricted common stock of Buckeye Ventures, Inc., a Michigan
corporation (“Buckeye”), and (iii) the Buyer’s assumption of the Assumed
Liabilities.
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2.2. Allocation of
Purchase Price. The Purchase Price will be allocated among
the Purchased Assets, the Assumed Liabilities and any non-competition agreements
as set forth in Schedule 2.2. Each party will reflect
such allocation in any filings required pursuant to Section 1060 of the Internal
Revenue Code of 1986, as amended (the “Code”) or any similar provisions of
state, local or foreign law, and in all tax returns.
2.3.
Closing. Subject to the terms and conditions of this
Agreement, the closing of the purchase and sale of the Purchased Assets
contemplated by this Agreement (the “Closing”) shall take place on January 2,
2007, subject to the satisfaction or, if permissible, waiver of the conditions
set forth in Section 2.5 (the “Closing Date”), at the offices of Buckeye, at
0000 Xxxxxx Xxxxxx, Xxxxx 0, Xxx Xxxxx, Xxxxxxxxxx 00000, unless another
date or
place is agreed to in writing by the parties hereto.
2.4
Deliveries.
(a) At the Closing,
the Seller Parties will deliver to the Buyer:
(i) A Xxxx of
Sale, Conveyance and Assignment in the form attached hereto as Exhibit A
(the “Xxxx of Sale”), duly executed by the Seller (and transferring the
Purchased Assets to the Buyer, free and clear of all liens, security interests,
charges, claims and other encumbrances of any kind (“Encumbrances”);
(ii) Certificates of
title for all registered vehicles that are included in the Purchased Assets,
properly completed and duly endorsed by the Seller to transfer title to such
vehicles to the Buyer, free and clear of all Encumbrances;
(iii) Any other
instruments of transfer or assignment of the Purchased Assets that the Buyer
may
request to vest in the Buyer the interests in the Purchased Assets, free
and
clear of all Encumbrances; and
(iv) By check or wire
transfer of immediately available funds to an account designated by Buyer
the
amount of all deposits from customers of the Seller with respect to goods
or
services required to be provided after the Closing (the “Customer
Deposits”).
(b) The Buyer will
deliver or cause to be delivered to the Seller:
(i) At the
Closing, $50,000 of the Cash Amount by check or wire transfer of immediately
available funds to an account designated by the Seller in writing to the
Buyer
prior to the Closing Date;
(ii) At the Closing,
a Promissory Note in the principal amount of the balance of the Cash Amount
($250,000) in the form attached hereto as Exhibit C (the
“Promissory Note”), duly executed by Buckeye;
(iii) On or before
February 1, 2007, a stock certificate for 600,000 shares of common stock of
Buckeye (the “Buckeye Stock”) issued in the name of the Seller; and
(iv) At the Closing, an
Assumption Agreement in the form attached as Exhibit B, duly
executed by the Buyer and effecting the assumption of the Assumed
Liabilities.
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2.5
Closing Conditions.
(a) The obligations
of the Seller Parties to consummate the transactions contemplated by this
Agreement are subject to the satisfaction or waiver on or prior to the Closing
Date of all of the following conditions:
(i) all
representations and warranties of the Buyer contained in this Agreement shall
be
true and correct as of the date of this Agreement and, if the Closing occurs
other than on the date of this Agreement, true and correct in all material
respects as of the Closing Date as though such representations and warranties
had been made on and as of that date; all of the terms, covenants and conditions
of this Agreement to be complied with and performed by the Buyer on or before
the Closing Date shall have been duly complied with and performed in all
material respects; and a certificate to the foregoing effect dated the Closing
Date and signed by the Buyer shall have been delivered to the Seller;
(ii) no action or
proceeding before a court or any other governmental agency or body shall
have
been instituted or threatened which seeks to restrain or prohibit or recover
damages relating to the transactions contemplated by this Agreement;
(iii) No event or
circumstance shall have occurred which would constitute a material adverse
effect on the business, properties or financial condition of Buckeye and
its
subsidiaries, taken as a whole;
(iv) the Seller Parties
have received the deliveries required to be made to the Seller Parties at
the
Closing pursuant to Section 2.4; and
(v) The Seller
Parties shall have received a certificate of the Secretary of the Buyer,
dated
the Closing Date, certifying as to the Buyer’s articles of incorporation
(including amendments thereto), which also shall be certified as of a recent
date by the California Secretary of State, bylaws (including amendments
thereto), and resolutions of its Board of Directors and, if required, the
stockholders approving this Agreement and the other Transaction Documents
and
the consummation of the transactions contemplated hereby;
(vi) all actions,
proceedings, instruments and documents required to carry out the transactions
contemplated by this Agreement or incidental hereto shall be reasonably
satisfactory to the Seller.
(b) The obligations
of the Buyer to consummate the transactions contemplated by this Agreement
are
subject to the satisfaction or waiver on or prior to the Closing Date of
all of
the following conditions:
(i) all
representations and warranties of the Seller Parties contained in this Agreement
shall be true and correct as of the date of this Agreement and, if the Closing
occurs other than on the date of this Agreement, true and correct in all
material respects as of the Closing Date as though such representations and
warranties had been made on and as of such date; all of the terms, covenants
and
conditions of this Agreement to be complied with or performed by the Seller
Parties on or before the Closing Date shall have been duly performed or complied
with in all material respects; and a certificate to the foregoing effect
dated
the Closing Date and signed by the Seller Parties shall have been delivered
to
Buyer;
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(ii) no action or
proceeding before a court or any other governmental agency or body shall
have
been instituted or threatened which seeks to restrain or prohibit or recover
damages relating to the transactions contemplated by this Agreement or as
a
result of which Buyer deems it inadvisable to proceed with the transactions
contemplated hereunder;
(iii) all necessary
consents of and filings with any individual, proprietorship, firm, corporation,
partnership, limited liability company, trust, association or other entity
or
government, governmental authority or governmental agency (each, a “Person”)
relating to the consummation of the transactions contemplated by this Agreement
shall have been obtained;
(iv) No event or
circumstance shall have occurred which would constitute a material adverse
effect on the business, properties, operations, condition (financial or
otherwise) or prospects of the Seller or the Business, and the neither the
Seller nor the Business shall have suffered any material change, loss or
damage
to any of its properties or assets, whether or not covered by insurance;
(v) the Buyer shall
have received the deliveries required to be made to the Buyer pursuant to
Section 2.4;
(vi) The Buyer shall have
received a certificate of the Secretary of Seller, dated the Closing Date,
certifying as to the Seller’s articles of incorporation (including amendments
thereto), which also shall be certified as of a recent date by the California
Secretary of State, bylaws (including amendments thereto), and resolutions
of
its Board of Directors and stockholders approving this Agreement and the
other
Transaction Documents and the consummation of the transactions contemplated
hereby;
(vii) The Buyer shall have
entered into a lease with the landlord for the premises or a portion of the
premises currently leased by the Seller, on terms and conditions acceptable
to
the Buyer;
(viii) The Buyer shall have received a
non-competition agreement by in the form attached hereto as Exhibit
D, duly executed by the Seller Parties, and agreements in the form
attached hereto as Exhibit E,executed by Xxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx;
(ix) The Buyer shall
have received a list of all Customer Deposits and a list of all prepayments
and
deferred revenue with respect to the preventative maintenance, maintenance
and/or service agreements included in the Assumed Liabilities, which lists
have
been certified as true, correct and complete by the Seller Parties;
(x) Buyer and
Buckeye shall have received a release, in form and substance satisfactory
to the
Seller and Buckeye, dated the Closing Date, releasing any and all claims
the
Stockholders may have against the Seller or the Business;
(xi) Buckeye shall
have received an investment agreement and any other documents it may request,
demonstrating that the Seller Parties are entitled to acquire the Buckeye
Stock
and satisfy an exemption to the registration requirements under the 1933
Act and
any applicable state securities laws;
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(xii) Buckeye shall have
received a Transfer Restriction Agreement in the form required by Buckeye,
duly
executed by the Seller Parties (the “Transfer Restriction Agreement”);
(xiii) Each Seller and Buckeye
shall be satisfied in their sole discretion with the results of their
investigation and review of the Seller and the Business, including the
operations, assets, contracts, legal compliance, expenses and future prospects
of the Business;
(xiv) the Buyer shall have received
Uniform Commercial Code lien search reports and such other lien search reports
as it may require and such search reports shall not disclose any unpermitted
liens which are not terminated on or before the Closing; and
(xv) all actions, proceedings,
instruments and documents required to carry out the transactions contemplated
by
this Agreement or incidental hereto shall be reasonably satisfactory to the
Buyer.
(c) The consummation
of the Closing hereby shall constitute a waiver of any conditions not so
satisfied, but no such waiver shall be deemed to affect any representations
and
warranties made by any party, or the survival of any representations or
warranties.
2.6
Offers of Employment. The Buyer will have the right to
offer employment to any or all persons employed by the Seller on the Closing
Date as the Buyer may determine in its sole discretion, in each case for
such
positions, to commence on the Closing Date or such other time, and on such
terms
and conditions as the Buyer may determine in its sole discretion. The
Seller shall terminate as of the Closing Date or such later time as they
are
first employed by the Buyer, those of its employees who accept an offer of
employment from the Buyer. The Seller will pay all such employees all
compensation, employee benefits, accrued sick pay and accrued vacation pay
to
which they are entitled through the date of such termination and shall be
responsible for all costs, expense and all liabilities associated with respect
all of its employees that are not offered or do not accept employment with
the
Buyer. The Seller shall also retain and perform all liabilities and
obligations under the employee benefit plans it maintains or maintained for
the
benefit of any of its employees or former employees or their dependents,
including those employees which accept an offer of employment from the Buyer,
in
accordance with the terms of such plans and applicable law.
2.7
Change of Corporate Name. Immediately following the
Closing, the Seller will amend its articles of incorporation to change its
name
to a name acceptable to the Buyer that is not similar to “Xxxxxxx Plumbing,
Inc.” or “Xxxxxxx Heating and Air” or “Xxxxxxx, Inc.”
Section
3.
Representations and Warranties of the Seller Parties. Each of the
Seller Parties jointly and severally represents and warrants to the Buyer
as
follows:
3.1.
Organization. The Seller is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation and has all requisite corporate power and authority to own,
lease
and operate its properties and assets and to conduct the Business as currently
conducted or proposed to be conducted. The Seller is not required to be
qualified to do business as a foreign corporation in any jurisdiction. No
part of the Business is conducted through any agent, subsidiary or affiliate
of
the Seller or any other Person.
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3.2.
Authority. Each of the Seller Parties has all requisite
power and authority to execute, deliver and perform its obligations under
this
Agreement and the other agreements being executed and delivered in connection
with this Agreement (collectively, together with this Agreement, the
"Transaction Documents") to which it is a party and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and the other Transaction Documents by the
Seller
and the consummation of the transactions contemplated by the Transaction
Documents have been duly authorized by all requisite corporate action on
the
part of the Seller. This Agreement and each of the other Transaction
Documents to any Seller Party is a party constitutes the legal, valid and
binding obligation of the Seller Party that is a party thereto, enforceable
against such Seller Party in accordance with their respective terms.
3.3. No
Conflicts. The execution, delivery and performance of this
Agreement and the other Transaction Documents by the Seller Parties and the
consummation of the transactions contemplated by the Transaction Documents
(a)
except as set forth on Schedule 3.3, do not require any of the
Seller Parties to file any notice with or obtain any consent, approval,
authorization or exemption from any Person, including any government or
governmental agency or instrumentality (other than filings of notices required
under applicable securities laws), (b) will not violate any writ, injunction,
decree, order, judgment, law, statute, ordinance, rule or regulation binding
upon or applicable to the Seller Parties, (c) will not violate or constitute
a
default or breach under the Seller’s certificate or articles of incorporation or
by-laws or any agreement or commitment to which any of the Seller Parties
is a
party or by which any of the Seller Parties or any of their respective
properties (including the Purchased Assets) may be bound and (d) will not
result
in the imposition of any security interest, lien, charge or other encumbrance
on
any of the Purchased Assets.
3.4.
Financials. Certain financial information and financial
statements for the Seller and the Business have been delivered by the Seller
Parties or their representatives to the Buyer prior to the date of this
Agreement (all such financial information and financial statements are sometimes
referred to, collectively, as the “Financials”). The financial statements
included in the Financials have been prepared on a consistent basis. All
financial information included in the Financials is true and correct, each
balance sheet included in the Financials is true and correct and fairly presents
the assets, liabilities and financial position of the Seller as of the date
indicated thereon, and each statement of income included in the Financials
is
true and correct and fairly presents the revenues, expenses and results of
operations of the Seller for the periods indicated thereon.
3.5.
Liabilities. The Seller shall satisfy all of its
liabilities and obligations as when due and payable or required to be performed
(other than those which constitute Assumed Liabilities). The Seller has no
liabilities (whether known or unknown, fixed or contingent, liquidated or
unliquidated or secured or unsecured) that will be asserted against the Buyer
or
the Purchased Assets after the Closing (except for the Assumed
Liabilities). As of the Closing Date, both before and after giving effect
to the transactions contemplated by this Agreement, the assets of the Seller
exceed the liabilities of the Seller, as determined in each case in accordance
with generally accepted accounting principles and at their fair valuations,
and
the Seller will not have unreasonably small capital or be unable to pay its
debts and perform its obligations as they become due. The list of Customer
Deposits provided to the Buyer at the Closing is true, correct and complete
in
all respects. The list of payments and amounts of deferred revenue with
respect to the preventative maintenance, maintenance and/or service agreements
included as Assumed Liabilities provided to the Buyer at the Closing is true,
correct and complete in all respects and the deferred revenue liability with
respect thereto does not exceed $60,000 in the aggregate.
3.6.
Title. The Seller has good and marketable title to the
Purchased Assets, and the Xxxx of Sale will transfer good and marketable
title
in the Purchased Assets to the Buyer, in each case free and clear of all
Encumbrances (subject, in the case of leased properties, to the rights of
the
lessors under the applicable leases).
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3.7.
Personal Property. Schedule 3.7 lists, in reasonable
detail, (i) all vehicles owned or leased by the Seller, regardless of value,
(ii) all other personal property owned by the Seller with an individual book
value or market value in excess of $500, and (iii) all leased property and
all
leases in respect of any personal property. The additional assets set
forth on the listing attached to Schedule 3.7 are included in
the Purchased Assets. All leased property is in the condition required by
the applicable lease, the Seller is not in default under any lease and all
leases are in full force and effect and constitute legal, valid and binding
agreements of the parties (and their successors) thereto in accordance with
their respective terms.
3.8.
Real Property. The Seller does not own any real
property. The only real property leased, subleased, used or otherwise
occupied by the Seller in the conduct of its business is the property at
0000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx, which is leased pursuant to an oral
lease from Xxxxxx Xxxxxxx.
3.9. Contracts and
Leases. Schedule 3.9 sets forth all
agreements or other commitments to which Seller is a party or which is otherwise
bound that (i) are required, necessary or desirable to operate the Business
or
otherwise material to the Business, (ii) are either a preventative maintenance,
maintenance or service agreements or similar types of agreements or
arrangements, (iii) are leases, or (iv) may be binding upon the Buyer after
the
Closing. The Seller has no agreements or other commitments that prohibit
or restrict the Seller or any other owner of the Purchased Assets from freely
using or disclosing any information, from freely providing goods or services
to
any person or entity or restrict in any respect the types of business or
geographical territory in which any business may be engaged. True, correct
and complete copies of all agreements and commitments described in this Section
or otherwise relating to the Assumed Liabilities have been provided to the
Buyer. The Seller is not in default under any of its agreements or
commitments, including any agreement or commitment set forth on Schedule
3.9.
3.10. Customer
List. Concurrently with the Closing the Seller will deliver
to the Buyer the original and all copies of the Seller’s customer list.
The Seller has not disclosed and will not disclose the customer list to any
other Person or retain or use the customer list after the Closing for any
purpose.
3.11. Compliance with Law;
Licenses. The Purchased Assets and the operation of the Business are
in all respects in compliance with all applicable laws, statutes, ordinances,
rules, regulations, permits, licenses and authorizations, including those
concerning labor and employment, environmental and tax matters. The Seller
holds and has in all respects complied with the permits, licenses and
authorizations set forth on Schedule 3.11, which are all of the permits,
licenses and authorizations required to conduct the Business and (to the
extent
they are transferable) are included in the Purchased Assets. Neither the
Seller nor the Stockholder has received any notice that any government or
governmental authority or instrumentality intends to cancel, terminate or
not
renew any such permit, license or authorization.
3.12.
Litigation. Except as set forth on Schedule
3.12, there is no action, suit, proceeding or investigation in any
court or before any arbitrator or government agency or instrumentality pending
or, to the knowledge of any of the Seller Parties, threatened against or
affecting the Seller or any of the Seller's properties (including any of
the
Purchased Assets) or the Business. Except as set forth on Schedule
3.12, there is no outstanding dispute, complaint or claim by any
customer which has not been resolved to the customer’s satisfaction or that
might result in any action, suit, proceeding or investigation against the
Business. There are no judgments, orders, writs, injunctions or decrees
binding upon or applicable to the Seller or its property (including the
Purchased Assets).
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3.13. Taxes. The
Seller has properly completed and filed, within the time and in the manner
prescribed by law, all tax returns and other documents required to be filed
in
respect of federal, state, local and foreign taxes, and all such returns
and
other documents are true, correct and complete. The Seller has furnished
to the Buyer copies of all income tax returns of the Seller for the past
three
years. The Seller has, within the time and in the manner prescribed by
law, paid all taxes that are due and payable. The Seller Parties have
adequate sources of cash to pay and shall pay all taxes that become due and
payable, including income taxes assessed against the Stockholders by virtue
of
the Seller being a Subchapter S corporation. There are no liens for taxes
upon any of the Purchased Assets. There are no examinations in progress or
claims against any of the Seller Parties for taxes (including penalties and
interest) for any period or periods and no notice of any claim for taxes,
whether pending or threatened, has been received. The stockholders of the
Seller made a valid election to be taxed as an S corporation within the meaning
of Section 1361 of the Code, that election is in effect and the Seller has
not,
at any time within the past five years, been taxed under the provisions of
Subchapter C of the Code. On the effective date of the election to be
treated as an S corporation, the fair market value of the Seller’s assets were
approximately equal to the Seller’s tax basis in such assets and the Seller
Parties (and not the Buyer) shall be responsible and pay any tax that may
be
required as a result of any built in gain at the time of the effectiveness
of
the Subchapter S election. The Seller has a taxable year ended December 31
and has not made an election to retain a fiscal year other than December
31
under Section 444 of the Code.
3.14.
Capitalization; Investments; Predecessors. All of
the issued and outstanding shares of the capital stock of the Seller are
owned
beneficially and of record by the Stockholders. The Seller has no
subsidiaries and does not own, of record or beneficially, or control, directly
or indirectly, any equity interest in any Person or any securities convertible
into any equity interest in any Person. Set forth on Schedule
3.14 is a listing of all prior corporate names of the Seller, and all
names of all predecessor companies of the Seller during the last five years,
including the names of any Persons acquired by the Seller (by stock purchase,
merger or otherwise) or owned by the Seller or from whom the Seller previously
acquired material assets. The Seller has not been a subsidiary or division
of
another Person.
3.15.
Intellectual Property. Schedule
3.15 sets forth (a) all trademarks, service
marks, trade names, trade
styles, copyrights and all registrations or applications therefor, (b) all
patents, inventions and all registrations or applications therefor, and (c)
all
licenses, sublicenses and other agreements to which the Seller is a party,
either as licensee or licensor or otherwise, related to any intangible or
intellectual property used in the business conducted by Seller (all intangible
or intellectual property owned, held for use in or used in the Business
conducted by the Seller, whether or not listed, the “Intellectual
Property”). All actions necessary to maintain the registration,
application or use of the Intellectual Property have been taken, and the
Seller
has not engaged in any conduct or omitted to perform any necessary act, the
result of which would invalidate, abandon or otherwise render the Seller’s
rights to any Intellectual Property unenforceable. The Seller is not, and
the
Buyer will not be, required to pay any royalty, license, fee or other similar
compensation with respect to the Intellectual Property. None of the
Intellectual Property infringes or misappropriates or otherwise violates
or has
been alleged to infringe, misappropriate or otherwise violate any propriety
rights of any other Person, nor is the Seller otherwise in the conduct of
its
business infringing upon, or alleged to be infringing upon, any propriety
rights
of any other Person. To the knowledge of the Seller and the Stockholder,
no Person is engaged in any activity which would constitute infringement
of the
Seller’s rights in the Intellectual Property.
9
3.16.
Warranties and Claims. Schedule 3.16
accurately describes all warranty, sales return or allowance and similar
policies related to the Business. No failure on the part of the Seller to
perform any work in accordance with all plans and specifications or in a
good
and xxxxxxx-like fashion will result in any loss, damage, liability, cost
or
expense to the Buyer. None of the Seller Parties has received any notice
or are otherwise aware of any claim by any customer or any other person or
entity against the Seller based in any way on or related to any theory of
product liability, any product defect or unresolved claim or problem with
respect to any of goods or services provided by the Seller.
3.17.
Name. No person has been granted the right to use the name
“Xxxxxxx”, either alone or together with any other word or words,
by any of the
Seller Parties or their affiliates or, to their knowledge, any of their
relatives in the heating, ventilating, air conditioning, indoor air quality
or
plumbing industries.
3.18.
Adequacy of Purchased Assets. The Purchased Assets
constitute all of the assets held for use or used in connection with the
Business as currently conducted (other than the Excluded Assets) and the
Purchased Assets are adequate to enable the Buyer to conduct after the Closing
the Business as currently conducted by the Seller. There are no existing
agreements or arrangements among Seller Related Parties or their affiliates
or
relatives which must be continued or replaced after the Closing to enable
Buyer
to conduct after the Closing the Business as currently conducted by Seller,
except for the lease of the real property currently leased by the Seller
and the
arrangements to use the licenses of Xxxxxx X. Xxxxxxx to qualify the
Business. All of the tangible Purchased Assets and other items necessary
to conduct the Business are, and shall on the Closing Date be, located at
the
Seller’s leased facility or on a job site to which Buyer shall have
access.
3.19. Full Disclosure.
No representation or warranty made by any of the Seller
Parties in this
Agreement (including any Schedule or Exhibit hereto), any other Transaction
Document or in any other document delivered in accordance with this Agreement,
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained herein not misleading.
Section
4.
Representations and Warranties of the Buyer.
The Buyer represents and warrants to the Seller Parties as follows:
4.1. Organization.
The Buyer is a corporation duly organized, validly existing
and
in good standing under the laws of its state of incorporation and has all
requisite corporate power and authority to own, lease and operate its properties
and assets and to conduct its business as currently conducted or proposed
to be
conducted.
4.2.
Authority. The Buyer has all requisite power and authority
to execute and deliver and perform its obligations under this Agreement and
the
other Transaction Documents to which it is a party and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and the other Transaction Documents by the
Buyer
and the consummation of the transactions contemplated by the Transaction
Documents have been duly authorized by all requisite corporate action on
the
part of the Buyer. This Agreement and the other Transaction Documents to
which the Buyer is a party constitute the legal, valid and binding obligations
of the Buyer, enforceable against the Buyer in accordance with their respective
terms.
10
4.3. No
Conflicts. The execution, delivery and performance of this
Agreement and the other Transaction Documents by the Buyer and the consummation
of the transactions contemplated hereby (a) do not require the Buyer to file
any
notice with or obtain any consent, approval, authorization or exemption from
any
person or entity, including any government or governmental agency or
instrumentality (other than filings of notices under any applicable securities
laws), (b) will not violate any writ, injunction, decree, order, judgment,
law,
statute, ordinance, rule or regulation binding upon or applicable to the
Buyer
and (c) will not violate or constitute a default or breach under the Buyer’s
certificate of incorporation or by-laws or any agreement or commitment to
which
the Buyer is a party or by which it or any of its properties may be bound.
4.4. Buckeye
Stock. Upon the issuance thereof, the Buckeye Stock to be
delivered to the Seller pursuant to this Agreement will be duly authorized
and
validly issued and fully paid and nonassessable. The shares of Buckeye
Stock to be issued to the Seller pursuant to this Agreement will not have
been
registered under the Securities Act of 1933, as amended (the “1933 Act”).
Section
5.
Additional Agreements.
5.1 Xxxxxxx
Name and Xxxx. None of the Seller Parties shall, and the
Seller Parties shall not permit any of their direct or indirect affiliates
to,
directly or indirectly use or authorize, license or otherwise permit any
other
Person to directly or indirectly use, the XXXXXXX name or xxxx, whether alone
or
in connection with any other word or words, whether as part of any official
name, fictitious name, trade name, trade style, logo, slogan or other name
or
designation or otherwise, in connection with the provision of any heating,
ventilation, air conditioning, indoor air quality or plumbing goods or services
or any other business which is similar to or which competes with any such
business.
5.2. Right of First
Offer. In the event any of the Seller Parties or any of their
direct or indirect affiliates (each, together with the Seller Parties, a
“Contracting Party”) directly or indirectly requires any heating, ventilating,
air conditioning, indoor air quality, plumbing or other goods or services
of a
type provided by the Buyer or its affiliates (the “Goods and Services”),
including any Goods and Services required in connection with their construction
of any custom homes, the Seller Parties shall, and shall cause the Contracting
Parties to (i) notify the Buyer and offer the Buyer and its affiliates the
first
opportunity to provide such Goods or Services at the desired pricing, terms
and
conditions, and (ii) if the Buyer and its affiliates decline to provide such
Goods and Services on such basis, not offer another Person the opportunity
to
provide such Goods or Services on more favorable pricing, terms or conditions
without first re-offering the Buyer and its affiliates the opportunity to
provide such Goods and Services on such more favorable pricing, terms or
conditions.
5.3.
Transition Services.
(a) For the period
from the Closing Date to and including January 31, 2007 (as such period may
be
extended the “Transition Period”), the Seller Parties shall assist the Buyer and
facilitate the transfer to Buyer of the Purchased Assets and the Business,
including ongoing operations and goodwill of the Business, the Seller’s
relationships relating to the Business, and any information regarding the
Business. In addition, if requested by the Buyer, during the Transition
Period, Xxxxxx X. Xxxxxxx shall permit the Buyer to utilize his individual
licenses (the “Licenses”) and act as a qualifier for the Buyer to enable the
Buyer to conduct the Business. The Seller Parties shall provide the
foregoing services during the Transition Period without any compensation
apart
from the Purchase Price.
11
(b) Xxxxxx X.
Xxxxxxx shall use commercially reasonable efforts to maintain the Licenses
in
good standing and act to qualify the Buyer’s Business during the Transition
Period. In the performance of the obligations under this Section, each
Seller Party will act and shall be treated as an independent contractor (not
as
an employee of the Buyer) for federal, state and local tax purposes and all
other purposes, except if and to the extent required by law to properly license
and qualify the Business. If the Buyer requests to use the Licenses and
have Xxxxxx X. Xxxxxxx qualify the Buyer’s Business, the Buyer shall indemnify,
defend and hold harmless Xxxxxx X. Xxxxxxx, to the maximum extent permitted
by
law, from and against any and all actions, proceedings, liabilities, losses,
claims, demands, damages, costs and expenses (including reasonable attorneys’
fees and costs) to the extent arising out of or resulting from the Buyer’s
reliance on the Licenses after the Closing; provided, however, such
indemnification shall not be required to be provided to the extent such matters
arise from or are caused by Xxxxxx X. Xxxxxxx’x acts or omissions.
5.4. Tax
Returns. On and after the Closing, each party shall, and
shall cause each of its affiliates to, provide to each of the other parties
hereto such cooperation and information as any of them reasonably may request
in
connection with the filing any tax return, amended tax return or claim for
refund, determining any liability for taxes or a right to refund of taxes
or in
conducting any audit or other proceeding in respect of taxes.
5.5.
Cooperation. On and after the Closing, each party hereto
shall deliver or cause to be delivered to the other parties hereto such
additional documents, releases, assignments and instruments as the other
parties
may reasonably request for the purpose of carrying out the purposes of this
Agreement. Each of the Seller Parties will cooperate and use reasonable
efforts to have the present and former officers, directors and employees
of the
Seller cooperate with the Buyer on and after the Closing in furnishing
information, evidence, testimony and other assistance in connection with
any
filing obligations, actions, proceedings, arrangements or disputes of any
nature
with respect to matters pertaining to periods prior to the Closing Date.
5.6.
Turnover of Payments. In the event that any party hereto
receives any payment, instrument of payment or other property to which any
other
party hereto is entitled, such party shall deliver the same or cause the
same to
be delivered promptly to the party entitled thereto (with endorsement if
necessary but otherwise in the same form as received) and until so delivered
hold the same in trust for the benefit of and as the property of the party
entitled thereto.
5.7. Offset
Rights. Without limiting any
rights or remedies of the Buyer, the Buyer shall have the right, at its option,
to offset, setoff and deduct any amount due from any of the Seller Parties
and,
in the case of any pending unresolved claim, the amount involved in such
claim
(but in the case of any unresolved claim only until such time, if any, as
such
claim is resolved in favor of such Seller Party), against any amounts due
from
Buyer or any of its affiliates, including any amounts due under the
Promissory Note.
12
5.8. Deficit
Protection. In the event that the sum of (i) the Fair Market
Value on December 31, 2007 (the “Measurement Date”) of the Buckeye Stock
issued in connection with this Agreement plus (ii) the amount of any cash
or the
Fair Market Value of any other property distributed, paid or provided after
the
Closing with respect to such stock is less than $150,000 (such difference
the
“Deficit”), then on or prior to January 31, 2008 Buyer shall pay or cause
Buckeye to pay the Seller an amount equal to the Deficit. Notwithstanding
the foregoing, the obligation to make any payment pursuant to this Section
automatically shall terminate if on or prior to the Measurement Date any
Buckeye
Stock is directly or indirectly sold, transferred or otherwise disposed of
to
any Person other than the Stockholders and the Seller Parties shall certify
to
Buyer and the Buckeye that no such sale, transfer or other disposition has
been
made on or prior to such date. The Deficit may be paid by Buckeye in cash,
by check or wire transfer, or in shares of common stock of Buckeye (which
shares
shall be valued at their Fair Market Value on the Measurement Date) or any
combination thereof. Any payments in stock shall be made by delivering
stock certificates for the number of whole shares, with a cash payment in
lieu
of any fractional shares. If payment is made in shares of common stock of
Buckeye, such shares shall be deemed to be subject to all of the restrictions
and provisions applicable to the Buckeye Stock in this Agreement and the
other
agreements executed in connection herewith, including the Transfer Restriction
Agreement, and the amount of shares permitted to be sold shall be equitably
adjusted, when appropriate, to reflect the issuance of such additional
shares. The term “Fair Market Value” shall mean with respect to any share
of stock the fifty (50) day moving average of the daily closing prices of
a
share of such stock as calculated by Buyer or Buckeye or, if not listed or
admitted to trading on any exchange, NASDAQ, or similar organization, or
if the
property is other than stock, the fair market price as determined in good
faith
by the mutual agreement of the Seller and the Company or if they are unable
to
agree, by a investment banker or other Person selected by Buyer or Buckeye
to
make such valuation and reasonably acceptable to the Seller (and the fees
and
costs of such Person shall be paid 50% by Buyer and 50% jointly and severally
by
the Seller Parties). The calculations required in this Section shall be
equitably adjusted by Buyer or Buckeye in the event of any dividend or
distribution on account of any stock, including any dividend payable in shares
of capital stock, any subdivision, reclassification or recapitalization of
the
outstanding shares of stock into a greater number of shares, any combination,
reclassification or recapitalization of any such stock into a lesser number
of
shares, or any issuance of any shares by or in connection with the
reclassification of any capital stock of Buckeye (including any reclassification
in connection with, consolidation or merger) or any similar event or
transaction. Any such adjustments made by Buyer or Buckeye in good faith
shall be conclusive.
Section
6.
Indemnification.
6.1.
Indemnification.
(a) The Seller
Parties will, jointly and severally, indemnify, defend and hold harmless
the
Buyer from and against all actions, proceedings, liabilities, losses, claims,
demands, damages, costs and expenses, including reasonable attorneys’ fees
(collectively, "Claims"), to the extent arising out of or related to (i)
any
Excluded Liabilities, (ii) any breach of any representation, warranty or
agreement made by any of the Seller Parties in or pursuant to this Agreement
or
any of the other Transaction Documents, (iii) any liabilities or obligations
to
the extent relating to, based on or arising out of events or conditions
occurring or existing in connection with or arising out of the Business prior
to
the Closing Date or the acts or omissions of the Seller prior to the Closing
Date (other than the Assumed Liabilities), or (iv) any failure of the parties
to
have complied with any applicable bulk sales law.
13
(b)
The Buyer will indemnify, defend and hold harmless the Seller Parties from
and
against all Claims to the extent arising out of or related to (i) the failure
of
the Buyer to discharge any of the Assumed Liabilities pursuant to their terms,
(ii) any breach of any representation, warranty or agreement made by the
Buyer
in or pursuant to this Agreement or any of the other Transaction Documents,
or
(iii) any liabilities or obligations of Buyer incurred by virtue of Buyer
conducting the Business after the Closing, except to the extent the same
arises
out of, results from, or relates to any matter for which Buyer is to be
indemnified by the Seller Parties pursuant to Section
6.1(a).
6.2.
Survival. The representations, warranties and agreements
made by the parties in the Agreement or the other Transaction Documents or
any
other document or certificate delivered pursuant to this Agreement or any
Transaction Document will survive the Closing.
Section
7.
Additional Matters.
7.1. Securities
Matters. Each Seller Party acknowledges that the shares of
Buckeye Stock being issued in connection with this Agreement have not been
and
will not be registered under the 1933 Act, or any state securities laws and
may
not be resold without compliance with the 1933 Act and any applicable state
securities laws or based upon an exemption, if available, under the 1933
Act and
any applicable state securities laws. Each Stockholder further represents,
warrants and covenants that (a) the shares of Buckeye Stock being issued
in
connection with this Agreement are being acquired by the Seller Parties solely
for their own account, for investment purposes only, and with no present
intention of distributing, selling or otherwise disposing of such Buckeye
Stock
in connection with a distribution, and (b) none of the shares of Buckeye
Stock
being issued to or obtained by any Seller Party will be offered, sold, assigned,
pledged, hypothecated, transferred or otherwise disposed of except after
full
compliance with all of the applicable provisions of the 1933 Act and the
rules
and regulations of the United States Securities and Exchange Commission (the
“SEC”) and after full compliance with any applicable state securities
laws. Each Seller Party acknowledges that, in addition to any other
legends which Buckeye may require, including those required by the Transfer
Restriction Agreement, all certificates evidencing the Buckeye Stock shall
bear
the following legend:
THE SHARES REPRESENTED
BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED (THE “1933 ACT”), OR UNDER ANY STATE SECURITIES LAWS, AND MAY ONLY BE
SOLD OR OTHERWISE TRANSFERRED IF THE HOLDER HEREOF COMPLIES WITH THE 1933
ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. THE SHARES ARE “RESTRICTED
SECURITIES” AS THAT TERM IS DEFINED IN RULE 144 UNDER THE 1933 ACT.
7.2.
Economic Risk; Sophistication. Each Seller Party
represents and warrants that such Seller Party (a) is able to bear the economic
risks associated with their receipt, acceptance and ownership of restricted
shares of Buckeye Stock to be issued pursuant to or in connection with this
Agreement, (b) can afford to sustain a total loss of their restricted shares
of
Buckeye Stock, and (c) has such knowledge and experience in financial and
business matters that such Person is capable of evaluating the merits and
risks
of their acceptance and ownership of restricted shares of Buckeye Stock pursuant
to this Agreement. Each Seller Party further represents and warrants that
such Seller Party has been supplied with, or had access to, information to
which
a reasonable investor would attach significance in making investment decisions,
including without limitation the annual reports, quarterly reports and other
reports and filings that have been filed with respect to Buckeye with the
SEC
that are available through the SEC website and, without limiting the generality
of the foregoing, has had an adequate opportunity to ask questions and receive
answers from the officers of Buckeye and its subsidiaries concerning any
and all
matters relating to Buckeye and its subsidiaries and the transactions described
herein, including the background and experience of the current and proposed
officers and directors of Buckeye and its subsidiaries, the plans for the
operations of the business of Buckeye and its subsidiaries, and any plans
for
additional acquisitions and the like. Each Seller Party represents and
warrants that such Seller Party has asked any and all questions in the nature
described in the preceding sentence and all questions have been answered
to his
satisfaction and further that such Stockholder is aware that Buckeye has
a very
limited operating history.
14
7.3.
Tax Matters. Each party acknowledges and agrees that the
transactions contemplated by this Agreement are expected to be taxable
transactions and that none of the parties hereto have made any representation
or
warranty with respect to the potential or actual federal, state and local
tax
consequences of these transactions and each party has consulted and relied
solely upon their own tax advisors with such matters and assumed all risks
related thereto.
Section
8.
Termination of Agreement.
8.1.
Termination.
This
Agreement may be terminated at any time
prior to the Closing Date solely: (a) by mutual consent of the Seller Parties
and the Buyer; (b) by the Buyer or the Seller Parties if the transactions
contemplated by this Agreement to take place at the Closing shall not have
been
consummated by January 5, 2007; provided, however, that such party or
parties shall not be entitled to terminate this Agreement pursuant to this
Section if the failure to consummate such transactions is due to the willful
failure of such party or parties to perform any of its or their obligations
under this Agreement required to be performed prior to or on the Closing
Date;
(c) by the Buyer or the Seller Parties if a material breach or default shall
be
made by the other parties or party in the observance or in the due and timely
performance of any of the covenants or agreements contained herein, and the
curing of such breach or default shall not have been made before the earlier
of
(i) five business days after receipt of notice specifying the breach and
requesting that such breach be cured and (ii) the Closing Date; or (d) if
the
conditions to the obligations of such party set forth in this Agreement have
not
been satisfied or waived as of the Closing Date.
8.2.
Liabilities. The termination of this Agreement will in no
way limit any obligation or liability of any party based on or arising from
a
breach or default by such party with respect to any of its representations,
warranties, covenants or agreements contained in this Agreement.
Section
9.
Miscellaneous.
9.1. Expenses and
Taxes. Whether or not the transactions herein contemplated
shall be consummated, the Buyer, on the one hand, and the Seller Parties,
on the
other hand, will pay their own fees, expenses and disbursements incurred
in
connection with the subject matter of this Agreement, including all costs
and
expenses incurred in the performance and compliance with all conditions to
be
performed by such party under this Agreement, except that the Seller Parties
(and not the Buyer) shall pay all sales, use, transfer, real property transfer,
recording, gains, transfer and other similar taxes and fees ("Transfer Taxes")
imposed in connection with the purchase and other transactions contemplated
by
this Agreement. The Seller Parties shall file, or cause to be filed,
all necessary documentation and tax returns with respect to such Transfer
Taxes.
9.2.
No Brokers. Each party represents and warrants that, it
employed no broker or agent in connection with this transaction, and agrees
to
indemnify the other parties hereto against all loss, cost, damages or expense
arising out of claims for fees or commission of brokers employed or alleged
to
have been employed by such indemnifying party.
15
9.3.
Notices. All notices required or permitted hereunder shall
be in writing and shall be deemed to have been duly given (a) as of the date
delivered if delivered personally, by courier or by courier service, or (b)
three business days after deposit in the United States mail, registered or
certified mail, postage prepaid, return receipt requested, addressed if to
the
Buyer at c/o Buckeye Ventures, Inc., 0000 Xxxxxx Xxxxxx, Xxxxx 0, Xxx
Xxxxx, XX 00000, Attention: President, and addressed if to the Seller or
the Stockholders, to the address set forth on Schedule 9.3 for
such person or entity; or to such other address or number as any party hereto
shall specify for itself by notice given pursuant to this Section
9.3 from time to time; provided, however, that notices of any
change in an address or number shall not be effective until receipt.
9.4.
Severability. In the event that any of the provisions
contained in this Agreement shall, for any reason, be declared or held to
be
unreasonable, unlawful, unenforceable or otherwise invalid in any respect,
such
term or provision shall be deemed modified to the extent necessary to make
it
enforceable, and in no event shall such declaration or holding affect the
validity of any other provision of this Agreement, all of which provisions
shall
continue in effect in accordance with their terms.
9.5.
Interpretation. The representations, warranties,
agreements and covenants of the parties made in the Transaction Documents
shall survive the consummation of the transactions contemplated hereby and
the
consummation of such transactions shall not be deemed a waiver of a breach
of or
inaccuracy in any representation, warranty, agreement or covenant or of any
party’s rights and remedies with regard thereto. No specific
representation, warranty, agreement or covenant contained herein shall limit
the
applicability of a more general representation, warranty, agreement or covenant
contained herein. The use of the terms “including” or “include” shall in
all cases mean “including without limitation” or “include without limitation”,
respectively.
9.6.
Effect of Investigation. Any due diligence review, audit
or other investigation or inquiry undertaken or performed by or on behalf
of any
of the parties hereto shall not limit, qualify, modify or amend the
representations, warranties or covenants or agreements of, or indemnities
by,
made or undertaken pursuant to this Agreement, irrespective of the knowledge
and
information received (or which should have been received) therefrom by such
party.
9.7.
Exercise of Rights and Remedies. No delay or
omission in the exercise of any right, power or remedy accruing to any party
as
a result of any breach or default by any other party under this Agreement
shall
impair any such right, power or remedy, nor shall it be construed as a waiver
of
or acquiescence in any such breach or default, or of any similar breach or
default occurring later; nor shall any waiver of any single breach or default
be
deemed a waiver of any other breach or default occurring before or after
that
waiver.
9.8.
Remedies Cumulative. No right, remedy or election
given by any term of this Agreement shall be deemed exclusive but each shall
be
cumulative with all other rights, remedies and elections available at law
or in
equity.
9.9. Governing
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of California, without giving effect to
the
principles of conflict of laws thereof.
9.10.
Assignment, Binding Effect and Entire Agreement. This
Agreement and the rights and obligations of the Seller and the Stockholders
hereunder may not be assigned, whether by operation of law or otherwise,
without
the prior written consent of the Buyer. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, the successors
and
assigns of the parties hereto, and the estate, heirs and legal representatives
of the Stockholders. This Agreement (including the Schedules and Exhibits
attached hereto) and the documents referred to herein set forth the entire
agreement of the parties hereto concerning the subject matter of this Agreement
and supersede any and all prior agreements and understandings relating to
the
subject matter of this Agreement. This Agreement may only be modified or
amended by an agreement in writing executed by each of the parties hereto
and
any term of this Agreement may be waived only with the written consent of
the
party sought to be bound.
16
9.11.
No Third Party Beneficiaries. This Agreement is
solely for the benefit of the parties hereto and, to the extent provided
herein,
their successors, heirs, personal representatives and permitted assigns,
and no
provision of this Agreement shall be deemed to confer upon other third parties
any remedy, claim, liability, reimbursement, cause of action or other
right.
9.12. Counterparts.
This Agreement may be executed in any number of counterparts
or using separate
signature pages. Each such executed counterpart and each counterpart to
which such signature pages are attached will be deemed to be an original
instrument, and all such counterparts together will constitute one and the
same
instrument.
9.13. Captions. The
section headings in this Agreement are provided for convenience only and
are not
to be considered in the interpretation of this Agreement.
9.14. WAIVER
OF JURY
TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
ENERGY
KING,
INC. XXXXXXX PLUMBING, INC.
By:
By:
Name:
Xxxxxx
X. Xxxxxxx
Title:
President
____________________________________
Xxxxxx
X. Xxxxxxx,
individually
____________________________________
Xxxxxx X. Xxxxxxx, individually
17
Schedule
1.1
Purchased
Assets
All
assets, properties, rights and interests of the Seller (other than the Excluded
Assets), including any assets, properties or rights and interests used in or
held in the Business, of whatever kind or nature, real or personal, tangible
or
intangible, including without limitation those set forth on Annex I and the
following:
(a) All accounts and
accounts receivable, promissory notes of other parties and other rights to
receive payments from any person or entity with respect to any uncompleted
or
unbilled work, including without limitation rights to payments arising from
the
sale or lease of goods and services that have not been completed and billed
(whether current or non-current);
(b) All rights under
contracts, agreements, instruments, understandings, leases, commitments and
other arrangements, whether oral or written, including without limitation
contracts or orders for the sale or lease of goods and services and further
including without limitation any and all warranties (express or implied) or
product agreements of any manufacturer, supplier, vendor or other person or
entity relating to any Purchased Assets;
(c) All inventories
(whether or not allocated to contracts in process), including without limitation
parts, components, supplies, raw materials, work in process and finished
products, items purchased for resale or lease by the Seller and items which
have
been ordered and purchased by the Seller and are in transit to the Seller at
the
time of the Closing;
(d) All machinery,
equipment, attachments and parts therefor, tools, leasehold improvements,
fixtures, computer hardware, office furniture, supplies and other tangible
personal property of every kind and nature owned, used in or necessary for
the
operation of the Business;
(e) All leasehold
and ownership interests in trucks, cars, trailers and other vehicles of any
kind;
(f) All
inventions (whether or not patentable) and all improvements and/or enhancements
thereto, all patents, patent applications and all reissuances, continuations,
continuations in part, revisions, extensions and re-examinations thereof, all
trademarks, service marks, trade names (including without limitation the names
“Xxxxxxx Plumbing, Inc.”, “Xxxxxxx Heating and Air” and “Xxxxxxx, Inc.” (and all
variations thereof)), trade styles, slogans and all logos, and all applications,
registrations and renewals in connection therewith, all drawings, technical
data, product specifications, computer software, source codes, object codes,
computer files, programs, blueprints, know‑how, trade secrets and other
proprietary rights and all goodwill associated therewith, including any
agreements, contracts, leases, licenses and other rights to use any of the
foregoing;
(g) All payments or
amounts received by Seller from customers as deposits for the provision of
goods
or services after the Closing (and not payments for goods or services actually
delivered or performed prior to Closing);
(h) All prepayments
and prepaid expenses;
(i) All rights
in incomplete or unfilled contracts, commitments and orders issued for the
purchase or lease of inventory or other goods or services by the Seller,
including without limitation parts, appliances, components and supplies;
(j) All rights
against suppliers of inventory or other goods or services, including without
limitation any express or implied warranties and any entitlement to volume
or
other discounts or rebates;
(k) To the extent
transferable, all authorizations, permits, franchises and licenses related
to
the Business;
(l) All
claims, refunds, causes of action, choses in action, rights of recovery and
rights of set‑off or offset of every kind and nature;
(m) All goodwill and all
other intangible property;
(n) All marketing
plans, marketing manuals, sales materials, promotional materials, catalogues
and
advertising and marketing literature and materials; and
(o) All telephone
numbers, facsimile numbers, electronic email addresses, telephone and internet
listings of the Seller used in the Business and all post office boxes at which
the Seller receives correspondence or remittances from customers;
(p) All websites,
web pages and domain names utilized by the Seller and any related text, content
or code;
(r) All
business records and files, including without limitation all customer lists,
supplier lists and other identifications of former, existing and potential
customers and suppliers, mailing lists, sales information, customer and supplier
records, cost and pricing information, billing records, employment and personnel
records and other records (including without limitation those maintained in
computer tapes, disks or other computer retrievable formats), in each case
whether maintained by the Seller or by others for the Seller.
