Exhibit 10.45
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") made and entered into this
31st day of December 2001 by and between BELFIBER, CO., a Virginia corporation,
(the "Buyer") and AIR PURATOR CORPORATION, a Delaware corporation (the
"Seller").
WITNESSETH:
WHEREAS, Seller is engaged in the manufacturing of nonwoven fabric filter
products (the "Business"); and
WHEREAS, Seller wishes to sell and transfer to Buyer certain assets,
properties and business of Seller and to retain certain of its assets and
liabilities pursuant to and in accordance with the terms and conditions of this
Agreement; and
WHEREAS, Buyer wishes to acquire certain assets, properties and business of
the Seller, pursuant to and in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, for and in consideration of the promises and mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
mutually agree as follows:
1. Purchase and Sale of Assets. At the Closing, as hereinafter defined,
---------------------------
Seller shall sell, assign, transfer and deliver to Buyer all right, title and
interest of Seller in and to the following:
a) any and all rights Seller possesses with regard to the name "Air
Purator Corporation";
b) any and all inventory, including, but not limited to, finished
goods, work-in process, raw materials, supplies and other materials
(collectively, the "Inventory") possessed by Seller, as such Inventory exists
(determined in accordance with Section 6 hereof) as of the Closing ;
c) the intellectual property owned by Seller and specified on Exhibit
1 attached hereto and made a part hereof;
d) to the extent transferable, all approvals, permits, product
licenses and other governmental authorizations and approvals (federal, state and
local) relating to the Assets, as such items are specified on Exhibit 1;
e) Seller's customer list, as specified on Exhibit 1; and
f) certain fixed assets, as specified on Exhibit 1.
(collectively the "Assets").
1
Subject to the terms and conditions of this Agreement, Seller shall sell,
assign, transfer and deliver the Assets to Buyer, and Buyer shall purchase the
Assets, for the consideration set forth in Section 4 below.
2. Excluded Assets. The Assets shall exclude any and all assets owned or
---------------
used by Seller that are not specifically identified in Section 1 above on
Exhibit 1.
3. Liabilities and Obligations to be Assumed Prior to Closing. Except as
----------------------------------------------------------
set forth on Exhibit 2 attached hereto and made a part hereof, Buyer shall not
assume, pay or discharge, and shall not be liable for, any debts, obligations,
responsibilities or liabilities of Seller, or any claim, action or suit relating
thereto, whether now existing or hereafter arising, known or unknown, contingent
or absolute, relating to or arising from the period prior to the Closing,
including, by way of example only and not in limitation thereof, Seller's
liabilities in connection with any of Seller's contractual obligations; Seller's
account payables; Seller's tax liabilities of any kind or nature whatsoever; or
any liabilities of Seller of any other kind or description whether accrued,
absolute, contingent or otherwise (collectively the "Liabilities"). Seller shall
remain fully and completely liable for all of Liabilities. From and after the
Closing, Buyer shall be solely responsible for any and all debts, obligations,
responsibilities and liabilities relating to or arising from the Assets or the
business related thereto.
4. Purchase Price. In consideration of the sale, assignment, transfer and
--------------
delivery to Buyer of the Assets, and as payment in full therefore, subject to
the adjustment provisions of Section 7 hereof, and upon the terms and subject to
the conditions contained in this Agreement, Buyer shall pay to Seller the sum of
Four Hundred and Seventy-Five Thousand Dollars ($475,000) (the "Purchase Price")
for the Assets. Three Hundred and Seventy-Five Thousand Dollars ($375,000) of
the Purchase Price shall be paid in cash or by debt instrument at the Closing.
Buyer shall execute a promissory note in the form attached hereto as Exhibit 3
(the "Note") for the balance of the Purchase Price.
5. Payment of Purchase Price. At the Closing, Buyer shall pay any cash
-------------------------
portion of the Purchase Price to Seller by wire transfer in immediately
available funds, and shall deliver any and all debts instruments, including but
not limited to the Note, to Seller. Any additional Purchase Price required to be
paid pursuant to Section 7 hereof shall be paid in accordance therewith.
6. Determination of Inventory. The quantity and valuation of the Inventory
--------------------------
shall be determined as follows:
a) The value of the Inventory as of the Closing shall be determined
from the books and records of the Seller. A physical inventory shall be taken on
December 29, 2001 and the books and records of the Seller shall be adjusted to
reflect the actual Inventory quantities as of such date (the "Physical Inventory
Amount"). The Physical Inventory Amount shall be valued in accordance with
paragraph (c) of this Section 6. Seller's representatives at Seller's expense
shall conduct such physical inventory jointly with Buyer' s representatives at
Buyer's expense.
b) The Physical Inventory Amount shall be adjusted at close of
business on the date of the Closing to reflect any incoming receipts or outgoing
shipments that occurred between
2
the physical inventory and close of business on the date of Closing (the "Final
Inventory Amount"). The books and records of the Seller shall be adjusted to
reflect the Final Inventory Amount. The Final Inventory Amount shall be valued
in accordance with paragraph (c) of this Section 6. The Final Inventory Amount
will be reflected on a "Final Inventory Statement".
c) The Physical Inventory Amount and Final Inventory Amount reflected
on the Final Inventory Statement shall be determined in accordance with
generally accepted accounting principles, as applied by Seller ("GAAP").
d) Any disagreement regarding the quantity or value of the Inventory,
or both, shall be resolved in the manner and at the time described in Section 7
(b) hereof.
7. Post Closing Adjustment.
-----------------------
a) The Purchase Price will be adjusted dollar for dollar following the
Closing to the extent that the Final Inventory Amount shown upon the Final
Inventory Statement differs from $150,000 (the "Reference Amount"). Buyer and
Seller will jointly prepare the Final Inventory Statement in the manner set
forth in Section 6 above.
b) If Buyer and Seller are unable to agree on the Final Inventory
Statement within thirty (30) days after the Closing, then any dispute regarding
the Final Inventory Statement will be resolved by an accounting firm mutually
acceptable to both parties or, in the absence of agreement, by an accounting
firm of national reputation selected by lot after eliminating Seller's and
Buyer's principal outside accountants. The determination by the accounting firm
so selected of the Final Inventory Statement and the Final Inventory Amount
shall be conclusive and binding upon the parties. The fees and expenses of such
accounting firm in acting under this Section 7 (b) shall be shared equally by
Buyer and Seller.
c) If the Reference Amount is greater than the Final Inventory Amount,
then Seller shall pay to Buyer an amount equal to the difference. If the
Reference Amount is less than the Final Inventory Amount, then Buyer shall pay
to Seller an amount equal to the difference. Payment shall be made by the party
obligated to make such payment not more than five (5) business days following
the determination of the Final Inventory Amount pursuant to Section 7 (a)
hereof. Such payment shall bear interest from the date of Closing to the date of
payment at an interest rate equal to six percent (6%) per annum.
8. Closing.
-------
a) The Closing shall take place at the offices of Seller or its
counsel on December 31, 2001, or in any other manner or any other place as the
parties may hereafter agree (the "Closing").
b) If the Closing does not occur on or before December 31, 2001, this
Agreement shall terminate and be of no force and effect and neither Buyer nor
Seller shall have any obligation hereunder, except as otherwise specifically set
forth herein.
9. Collections. Buyer will exercise its best efforts in assisting Seller in
-----------
the collection and settling of the Seller's accounts receivable (the
"Accounts"). In the event that Buyer
3
receives any payments on the Accounts, Buyer agrees to hold said payments in
trust for Seller and to forward said payments to Seller within ten (10) days of
receipt thereof.
10. Buyer's Handling of Unfilled Orders. At the Closing, there shall exist
-----------------------------------
certain purchase orders received by Seller prior to Closing which have not been
filled (the "Unfilled Orders"). A list of the Unfilled Orders is attached hereto
as Exhibit 4.
a) Within sixty (60) days of Closing, Buyer shall fulfill, xxxx and
ship all products which were required to be provided by Seller under Unfilled
Orders.
b) When fulfilling the Unfilled Orders, Buyer shall provide the
customers with Buyer's billing information for the remittance of payments due
thereon.
c) Buyer shall hold in trust for Seller all payments received on the
Unfilled Orders and forward said payments less the cost of fulfilling the
Unfilled Orders to Seller within ten (10) days of receipt thereof. Buyer shall
prepare and delivery to Seller with said payments a statement detailing the
fulfillment costs associated with each Unfilled Order. Seller shall be
responsible for any commissions owned with respect to the Unfilled Orders.
d) For the purposes of this Section, the term "Unfilled Orders" shall
apply only to those purchase orders received by Seller on or before the Closing,
but not yet filled as of the Closing or, if partially filled, then only to the
extent not yet filled as of the Closing.
11. Earn-Out. The parties shall adjust the Purchase Price of the Assets
--------
based on the gross revenue ("Gross Revenue"), as determined by GAAP, for the
calendar year 2002, of the Buyer's operation of the Business (the "Earn-Out")
under the following terms and conditions:
a) Payment Calculation. For each dollar of Gross Revenue of the
-------------------
Business for the calendar year 2002 in excess of One Million Three Hundred and
Fifty Thousand Dollars ($1,350,000) (the "Baseline"), Seller shall receive 10%
of each such dollar.
By way of an example only, if the Gross Revenue in 2002 is $2,000,000,
the Seller would receive an Earn-Out payment of $65,000 (($2,000,000-$1,350,000)
* 10%)).
b) Determination of Gross Revenue.
------------------------------
(i) Buyer will prepare and deliver financial statements,
including a statement of operations of the Business (the "Income
Statement") for year ended December 31, 2002 by February 28, 2003. The
Income Statement shall be prepared in accordance with GAAP and will
contain a calculation of Gross Revenue for such period. Buyer will
give Seller's representatives access to its books and records and to
the appropriate personnel of Buyer for purposes of confirming the
Income Statement and the calculation of Gross Revenue. Unless Seller
notifies Buyer, in writing, that it disagrees with the Income
Statement and the calculation of Gross Revenue within thirty (30) days
after receipt thereof, the Income Statement and the calculation of
Gross Revenue shall be conclusive and binding on Buyer and Seller.
4
(ii) If Seller disagrees with Buyer's calculation of Gross
Revenue for the Business for the year ended December 31, 2002 and
notifies Buyer in writing of its disagreement with said calculation
within thirty (30) days of its receipt of the Income Statement and
calculation of Gross Revenue, then Buyer and Seller shall attempt to
resolve their differences with respect thereto within thirty (30) days
after Buyer's receipt of Seller's written notice of disagreement. Any
dispute regarding the Income Statement not resolved by Buyer and
Seller within such 30-day period will be resolved by an accounting
firm mutually acceptable to both parties or, in the absence of
agreement, by an accounting firm of national reputation selected by
lot after eliminating Seller's and Buyer's principal outside
accountants. The determination by the accounting firm so selected of
such Gross Revenue shall be conclusive and binding upon the parties.
Buyer and Seller shall share the fees and expenses of such accounting
firm in acting under this Section 11(b) equally.
c) Payment Terms. If the Buyer is obligated to make a payment pursuant
-------------
to this Section 11, to the Seller, Buyer shall execute a promissory note
substantially similar to the note contained in Exhibit 5 attached hereto and
made a part hereof and make payments according to the terms thereof.
12. Representations and Warranties of Seller. Seller hereby represents and
----------------------------------------
warrants as follows:
a) Corporate.
---------
(i) Seller is a corporation duly organized, validly existing and
in good standing under the laws of Delaware and has all corporate
power and authority to own or lease its properties and to carry on the
Business as presently conducted.
(ii) Seller has the requisite power to own the Assets and the
right and power to sell, assign, transfer, convey and deliver the
Assets to Buyer. All consents, approvals, authorizations and orders
(corporate, governmental or otherwise) necessary for the due
authorization, execution and delivery by Seller of this Agreement and
the valid delivery of the Assets have been obtained or will be
obtained prior to the Closing.
(iii) This Agreement and the other documents delivered at the
Closing have been duly executed and delivered and are the lawful,
valid and legally binding obligations of Seller enforceable in
accordance with their respective terms, except as enforcement may be
limited by applicable bankruptcy, insolvency, rearrangement,
reorganization or similar debtor relief legislation affecting the
rights of creditors generally and subject to the application of
general principles of equity. The execution and delivery of this
Agreement will not result in a default under or a breach of (i) the
charter or bylaws of Seller, (ii) any contract, agreement or other
instrument to which the Seller or the Business are a party, (iii) any
regulation, order, writ, decree or judgment of any court or
governmental agency, or (iv) any law applicable to Seller or the
Business and will
5
not restrict the ability of Buyer to use or dispose of the Assets.
Seller has obtained each consent or approval by notice from any third
party required on the part of Seller in connection with the execution
and delivery by Seller of this Agreement or the consummation by Seller
of the transaction contemplated hereby.
b) Title to Assets. Except as set forth on Exhibit 6 attached hereto
---------------
and made a part hereof, Seller has good title to the Assets, free and clear of
any lien, pledge, charge, security interest, encumbrance, option, restriction or
other adverse claim thereto. The Assets are being sold to Buyer AS IS, WHERE IS,
WITH ALL FAULTS AND WITH NO REPRESENTATION AS TO MERCHANTABILITY, SALEABILITY OR
QUALITY.
c) Litigation. There are no actions, suits, proceedings, arbitrations,
-------------
or investigations pending, or to Seller's best knowledge, threatened, which
question the validity of this Agreement or any actions taken or to be taken in
connection herewith or the consummation of the transactions contemplated herein.
d) Brokers/ Finders Fee. Seller has not retained any broker or finder
--------------------
in connection with the transactions contemplated herein and is not obligated and
has not agreed to pay any brokerage or finder's commission, fee or similar
compensation.
13. Representations and Warranties of Buyer. Buyer hereby represents and
---------------------------------------
warrants as follows:
a) Corporate.
---------
(i) Buyer is a corporation duly organized, validly existing and
in good standing under the laws of Virginia and has all necessary
power and authority to execute and deliver this Agreement, to carry on
the businesses in which it is engaged, to own and use the properties
owned and used by it, to consummate the transactions contemplated
hereby, and perform its obligations hereunder.
(ii) All corporate and other proceedings required to be taken on
the part of Buyer, including, without limitation, all action required
to be taken by the directors or shareholders of Buyer to authorize
Buyer to enter into and carry out this Agreement and to purchase the
Assets, have been, or prior to the Closing will be, duly and properly
taken. This Agreement has been duly executed and delivered by Buyer
and is the valid and binding obligation of Buyer enforceable against
it in accordance with its terms, except as enforcement may be limited
by equitable principles limiting the right to obtain specific
performance or other equitable remedies, or by applicable bankruptcy
or insolvency laws and related decisions affecting creditors' rights
generally.
b) Litigation. There are no actions, suits, proceedings, arbitrations,
----------
or investigations pending, or to Buyer's best knowledge, threatened, which
question the validity of this Agreement or any actions taken or to be taken in
connection herewith or the consummation of the transactions contemplated herein.
6
c) Brokers/Finders Fee. Buyer has not agreed or become obligated to
-------------------
pay, and has not taken any action that might result in any person or entity
claiming to be entitled to receive, any brokerage commission, finder's fee or
similar commission or fee in connection with any of the transactions
contemplated hereby.
d) No Consent. No consent, approval, authorization order, filing,
----------
registration or qualification of or with any court, governmental authority or
third person is required to be made or obtained by Buyer in connection with the
execution and delivery of this Agreement by Buyer or the consummation by Buyer
of the transactions contemplated hereby.
e) No Interference. Buyer agrees not to undertake, directly or
---------------
indirectly, any action that will materially adversely affect or interfere with
Seller's rights in and obligations to its Accounts and Liabilities.
14. Seller's Conditions to Close. Each and every obligation of Seller under
----------------------------
this Agreement is subject to the satisfaction of the following conditions:
a) Each of the representations and warranties of Buyer contained
herein shall be true and correct in all material respects as of the Closing.
b) Buyer shall have performed, satisfied and complied with all
covenants, agreements and conditions required by this Agreement to be performed,
satisfied and complied with by it as of the Closing.
c) No action, suit or proceeding before any court or governmental body
pertaining to the Assets or to the transactions contemplated by this Agreement
shall have been instituted or threatened as of the Closing.
d) Buyer shall deliver to Seller a true and correct copy of the
resolutions of the Buyer's Board of Directors authorizing the execution and
delivery of this Agreement and the consummation of the transactions contemplated
thereby, certified by a duly elected, qualified and acting officer of the Buyer
in form and substance satisfactory to the Seller.
e) Buyer shall execute a security agreement in the form attached
hereto as Exhibit 7 securing the Note.
f) Buyer shall execute a promissory note in original principal sum of
$375,000 for the cash portion of the purchase price (the "$375,000 Note") in the
form attached hereto as Exhibit 8.
g) Buyer shall execute a Revolving Promissory Note (the "Revolving
Note") in the form attached hereto as Exhibit 9 and Xxxxxxx Xxxxxx shall execute
a Guaranty of such note in the form attached hereto as Exhibit 10.
h) Buyer shall execute a security agreement in the form attached
hereto as Exhibit 11 securing the Revolving Note and the $375,000 Note.
7
15. Buyer's Conditions to Close. Each and every obligation of Buyer under
---------------------------
this Agreement is subject to the satisfaction of the following conditions:
a) Each of the representations and warranties of Seller contained
herein shall be true and correct in all material respects as of the Closing.
b) Seller shall have performed, satisfied and complied with all
covenants, agreements and conditions required by this Agreement to be performed,
satisfied and complied with by it as of the Closing.
c) No action, suit or proceeding before any court or governmental body
pertaining to the Assets or to the transactions contemplated by this Agreement
shall have been instituted or threatened as of the Closing.
16. Covenant of Seller. Seller shall perform any and all actions and shall
------------------
execute any and all documents necessary to accomplish the transfer of the
Assets, as reasonably requested by Buyer.
17. Covenant of Buyer. Buyer shall perform any and all actions and shall
-----------------
execute any and all documents necessary to accomplish the transfer of the
Assets, as reasonably requested by Seller.
18. Covenant Not To Compete.
-----------------------
a) Seller agrees that for a period of Thirty (30) months immediately
following the Closing, neither Seller nor any of its related or affiliated
entities will directly or indirectly, operate, perform, have any interest in or
otherwise be engaged in or concerned with any business which manufactures
nonwoven fabric filter products for use in high temperature pulse-jet baghouses.
For these purposes, ownership of securities of a company whose securities are
publicly traded under a recognized securities exchange not in excess of 5% of
any class of such securities shall not be considered to be competition with
Buyer.
b) Further, Seller agrees that for Thirty (30) months following the
Closing, neither Seller nor any of its related or affiliated entities will
induce any of Buyer's employees to terminate his or her relationship with Buyer
to work for Seller.
c) Each of Seller and Buyer acknowledges that the restrictions on its
activities under this Section 18 are necessary for the reasonable protection of
Buyer and constitute a material inducement to Buyer's entering into and
performing this Agreement.
19. Indemnification.
---------------
a) Indemnification by Seller. Seller agrees to indemnify, defend,
-------------------------
protect and hold harmless Buyer from, against and in respect of all liabilities,
losses, claims, damages, causes of action, lawsuits, demands, assessments and
costs and expenses (including reasonable attorney's fees and disbursements of
every kind, nature and description) suffered, sustained, incurred or paid by
Buyer in connection with, resulting from or arising out of, directly or
indirectly, any breach of any representation or warranty of Seller set forth in
this Agreement, or
8
any agreement executed in connection herewith; or any nonfulfillment of any
covenant or agreement on the part of Seller in this Agreement.
b) Indemnification by Buyer. Buyer agrees to indemnify, defend,
------------------------
protect and hold harmless Seller from, against and in respect of all
liabilities, losses, claims, damages, causes of action, lawsuits, demands,
assessments and costs and expenses (including reasonable attorney's fees and
disbursements of every kind, nature and description) suffered, sustained,
incurred or paid by Seller in connection with, resulting from or arising out of,
directly or indirectly, any breach of any representation or warranty of Buyer
set forth in this Agreement, or any agreement executed in connection herewith;
or any nonfulfillment of any covenant or agreement on the part of Buyer in this
Agreement.
c) Defense of Actions. Each party indemnified pursuant to Sections
------------------
19(a) or 19(b) hereof (an "Indemnified Party") will give the indemnitor (the
"Indemnitor") written notice of any action or proceeding relating to a claim or
loss for which indemnity is sought hereunder within ten (10) business days after
any such Indemnified Party shall have had actual notice thereof; provided,
however, that failure to give such notice shall not impair the Indemnified
Party's rights unless the Indemnitor is actually prejudiced by such failure. The
Indemnified Party and the Indemnitor shall work cooperatively to minimize any
claim or loss for which indemnity is sought and the Indemnitor shall have ten
(10) days after receipt of the aforementioned written notice to cure any breach
(to the extent that such breach can be cured) that leads to a request for
indemnity. The Indemnitor, at its option and expense, shall be entitled to
participate in or direct the defense or settlement of such action, provided the
Indemnitor employs counsel reasonably satisfactory to such Indemnified Party;
provided that prior to the Indemnitor assuming control of such defense it shall
first demonstrate to the Indemnified Party in writing such Indemnitor's
financial ability to provide full indemnification to the Indemnified Party with
respect to such action, lawsuit, proceeding, investigation or other claim giving
rise to such claim for indemnification hereunder and provided further, that:
(i) the Indemnified Party shall be entitled to participate in the
defense of such claim and to employ counsel of its choice for such
purpose; provided that the fees and expenses of such separate counsel
shall be borne by the Indemnified Party other than any fees and
expenses of such separate counsel that are reasonably incurred prior
to the date Indemnitor effectively assumes control of such defense
which, notwithstanding the foregoing shall be borne by the Indemnitor,
provided, however, that the Indemnified Party is not responsible for
any delay in Indemnitor assuming control of such defense.
(ii) if the Indemnitor shall control the defense of any such
claim, the Indemnitor shall obtain the prior written consent of the
Indemnified Party before entering into any settlement of a claim or
ceasing to defend such claim if, pursuant to or as a result of such
settlement or cessation, injunctive or other equitable relief will be
imposed against the Indemnitee or if such settlement does not
expressly and unconditionally release the Indemnified Party from all
liabilities and obligations with respect to such claim, without
prejudice.
9
Such Indemnified Party shall have the right to employ its own counsel
in any such case, but the Indemnitor shall not have the right to
assume control of such defense and the fees and expenses of such
counsel shall be borne by such Indemnified Party in the event (i) the
employment of such counsel has been authorized by the Indemnitor, (ii)
the Indemnitor fails to defend the claim in a vigorous and time
manner, or (iii) such Indemnified Party and counsel selected by the
Indemnitor shall reasonably conclude that there are defenses available
to the Indemnified Party that are in conflict with those available to
the Indemnitor. In the event of any of (i), (ii) or (iii), expenses of
counsel employed by such Indemnified Party shall be borne by the
Indemnitor.
d) Limitations on Indemnification. No Indemnitor shall be liable to an
------------------------------
Indemnified Party with respect to violations of the representations and
warranties pursuant to Section 19(a) or 19(b) hereof until the total of all
claims or losses for breaches of representations and warranties for which
indemnity is sought by such Indemnified Party exceeds $50,000 and then only for
the amount by which such claims and losses exceed $50,000. In no event shall the
maximum aggregate liability of the Seller or Buyer pursuant to Section 19(a)
hereof exceed $150,000. For purposes of determining whether there has been a
breach of a representation or warranty, the representations and warranties set
forth in this Agreement shall be considered without regard to any materiality
qualification set forth therein.
e) Other Remedies. The right of an Indemnified Party to be indemnified
--------------
under this Section 19 shall not limit, reduce or otherwise affect, except as
expressly provided herein, the rights and remedies of such Indemnified Party
with respect to the matters indemnified hereunder. Any indemnification of the
Buyer or the Seller pursuant to this Section 19 shall be effected by wire
transfer of immediately available funds to an account designated by the Buyer or
the Seller, as the case may be, within fifteen (15) days following the
determination thereof.
20. Post Closing Covenants. From and after the date of this Agreement, the
----------------------
parties covenant, represent and warrant as follows:
a) Continued Assistance. Seller shall refer to Buyer, as promptly as
--------------------
practicable, any telephone calls, letters, orders, notices, requests, inquiries
and other communications relating to the Business or the Assets.
b) Certain Payments. Following the Closing, Seller shall use
----------------
reasonable efforts to pay and fully discharge all Liabilities within ninety (90)
days of Closing.
c) Access to Records. Following the Closing, Seller and Buyer shall
-----------------
allow each other access to available books and records of Seller's Business as
either shall reasonably request.
10
21. Remedies.
--------
a) The rights and remedies provided by this Agreement and at law or
equity are cumulative and the use of any one right or remedy by any party does
not preclude or waive the right to use any or all other remedies. Such rights
and remedies are given in addition to any other rights the parties may have by
law, statute or otherwise.
22. Notice. Any notice or demand to be given hereunder by either party
------
shall be effected by personal delivery in writing or by certified mail, postage
prepaid, return receipt requested, and shall be deemed communicated forty-eight
(48) hours after mailing. Mailed notices shall be addressed to the parties as
follows:
If to Buyer: Belfiber, Co.
000 Xxxxxx Xxxxxx
XX Xxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
If to Seller: Air Purator Corporation
00 Xxxxx Xxxxxx, Xxxx X
Xxxxxxx, Xxxxxxxxxxxxx 00000
With a Copy to: Xxxxxxxx Xxxxxx
Vice President of Finance and Administration/
Chief Financial Officer
CECO Environmental Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
or such other address as the parties may indicate by written notice.
23. Arbitration. Any controversy, dispute or claim arising out of, in
-----------
connection with, or in relation to the interpretation, performance or breach of
this Agreement, or any amount due hereunder, including, without limitation, any
claim based on contract, tort or statute shall be settled, solely and
exclusively, by arbitration. Any arbitration pursuant to this Agreement shall be
conducted in Cincinnati, Ohio before and in accordance with the then existing
Commercial Dispute Resolution Procedures through the American Arbitration
Association, using an arbitrator mutually selected by Buyer, and Seller, or
applicable from a list of those designated by the American Arbitration
Association. Any arbitration shall be final and binding. The findings shall be
delivered in a written opinion with findings of fact based on the record. Any
judgment upon any interim or final award or order rendered by the arbitrator may
be entered by any State or Federal court having jurisdiction thereof. The
parties intend that any agreement pursuant hereto to arbitrate be valid,
enforceable and irrevocable. Each party in any arbitration proceeding commenced
hereunder shall bear such party's own costs and expenses (including expert
witness and attorneys' fees) of investigating, preparing and pursuing such
arbitration claim.
11
24. Miscellaneous.
-------------
a) All representations and warranties contained herein or made in
writing by or on behalf of any party to this Agreement in connection with this
Agreement and the provisions of Sections 12, 13, 14, 15, 16, 17,18, 19, 20 and
23 shall survive the Closing of this transaction.
b) This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns. No party may assign any
of its rights or obligations hereunder without the prior written consent of the
other party.
c) This Agreement constitutes the entire Agreement between the parties
with respect to the subject matter hereof and supersedes all previous
negotiations, commitments and writings.
d) If any provision of this Agreement shall be held unenforceable,
invalid or void to any extent for any reason, such provision shall remain in
force and effect to the maximum extent allowable, if any, and the enforceability
or validity of the remaining provisions of this Agreement shall not be affected
thereby.
e) This Agreement may only be amended, modified, superceded or
supplemented by a written instrument duly executed by both parties hereto.
f) The failure of any party to enforce any provision of this Agreement
shall not be a waiver of any other provision or subsequent breach of the same or
any other obligation hereunder.
g) This Agreement may be executed in counterparts each of which will
deemed an original but all of which will constitute one and the same instrument.
Facsimile signatures shall have the same force and effect as original
signatures.
h) The paragraph headings of this Agreement are for reference only and
shall not be considered in the interpretation of this Agreement.
i) This Agreement shall be construed in accordance with and governed
by the law of the State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement.
AIR PURATOR CORPORATION, BELFIBER, CO.,
a Delaware corporation a Virginia corporation
By /s/ Xxxxxxx X. Xxxxx By /s/ Xxxxxxx Xxxxxx
----------------------------- ---------------------------------
Name Name Xxxxxxx Xxxxxx
--------------------------- -------------------------------
Its President Its
---------------------------- --------------------------------
12
