EXHIBIT 2.1
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ASSET PURCHASE AGREEMENT
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BY AND AMONG
AGRIBIOTECH, INC.,
XXXXXXX ACQUISITION COMPANY,
a wholly-owned Nevada subsidiary of AgriBioTech, Inc.,
as Buyer,
THE XXXXXXX COMPANY and NORTHERN PLAINS SEED COMPANY,
as Sellers
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June 18, 1997
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ASSET PURCHASE AGREEMENT
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ASSET PURCHASE AGREEMENT (the "Agreement") dated June 18, 1997 (hereinafter
referred to as the "Signing Date" or the "Signing") by and among The Xxxxxxx
Company, a South Dakota corporation ("Xxxxxxx"), Northern Plains Seed Company, a
wholly-owned South Dakota subsidiary of Xxxxxxx ("Northern Plains") (Xxxxxxx and
Northern Plains are sometimes collectively referred to herein as the "Sellers"),
Xxxxxxx Acquisition Company, a Nevada corporation (the "Buyer") and AgriBioTech,
Inc. ("ABT"), a Nevada corporation.
W I T N E S S E T H:
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WHEREAS, the Buyer is a wholly-owned subsidiary of ABT;
WHEREAS, the Sellers have been engaged in the wholesale and retail farm
seed business in the States of Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxx and Nebraska
selling a wide range of products including, but not limited to, hybrid seed
corn, alfalfa, small grains, soybeans, forage seeds, sorghums, turf seeds,
fertilizer, specialty products and inoculant (the "Business"), which Business
shall cease as currently organized and be reconstituted as a new business of the
Buyer; and
WHEREAS, the Sellers wish to sell and the Buyer wishes to purchase certain
tangible and intangible assets associated with the Business (the "Assets").
NOW, THEREFORE, in consideration of the foregoing and the terms,
conditions, representations, warranties and mutual covenants appearing in this
Agreement, the parties hereto hereby agree as follows:
SECTION 1. SALE AND PURCHASE OF ASSETS. Upon the terms and subject to
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the conditions set forth in this Agreement, at the Closing (as hereinafter
defined) effective as of the Effective Date (as hereinafter defined), the
Sellers shall sell, assign, transfer and deliver to the Buyer, and the Buyer
shall purchase, acquire, accept and take possession of all of the Sellers'
right, title and interest in and to the assets of the Sellers described below
(all of which are hereinafter sometimes referred to as the "Assets," which shall
be defined as those assets set forth in Sections 1(a) through 1(q) as of the
Effective Date adjusted for the deletions and additions thereto in the ordinary
course of business for the period after the Effective Date through the Closing
Date).
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In full consideration for the sale, transfer and assignment of the Assets
by the Sellers to the Buyer, the Buyer shall pay to First National Bank in
Brookings (the "Bank") an amount equal to the purchase price (the "Purchase
Price") as set forth on Schedule 1 attached hereto. The obligation to pay the
Purchase Price shall be evidenced by a note, dated the Closing Date, by and
between the Buyer, as borrower and the Bank, as lender (the "Note").
The Assets shall include:
(a) The Sellers' marketable inventory, which relates to the Business (the
"Inventory"), as set forth on Schedule 1(a) and Schedule 1(a-1) attached hereto.
(b) The Sellers' land, which relates to the Business (the "Real Property"),
as set forth on Schedule 1(b) and Schedule 1(b-1) attached hereto.
(c) The Sellers' buildings and improvements, including storage, which
relate to the Business, as set forth on Schedule 1(c) and Schedule 1(c-1)
attached hereto.
(d) The Sellers' equipment and machinery, including repair parts, tools and
miscellaneous property, which relate to the Business, as set forth on Schedule
1(d) and Schedule 1(d-1) attached hereto.
(e) The Sellers' office furniture and fixtures, which relate to the
Business, as set forth on Schedule 1(e) and Schedule 1(e-1) attached hereto.
(f) The Sellers' automobiles, trucks, forklifts and other vehicles, which
relate to the Business, as set forth on Schedule 1(f) and Schedule 1(f-1)
attached hereto.
(g) The Assets set forth in subsections (b) through (f) above are sometimes
referred to herein as the "Fixed Assets."
(h) The Sellers' pre-paid assets, which relate to the Business, as set
forth on Schedule 1(h) and Schedule 1(h-1) attached hereto (the "Pre-Paid
Assets").
(i) The Sellers' other assets, which relate to the business, including
germplasm and other technology, as set forth on Schedule 1(i) attached hereto
(the "Other Assets").
(j) The Sellers' cash or cash equivalents, which relate to the Business, as
set forth on Schedule 1(j) attached hereto.
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(k) The Sellers' trade names, which relate to the Business, as set forth on
Schedule 1(k) attached hereto.
(l) The Sellers' trademarks, which relate to the Business, as set forth on
Schedule 1(l) attached hereto.
(m) The Sellers' rights to varieties, including, but not limited to, all
Plant Variety Protection Act ("PVPA") Certificates, which relate to the
Business, as set forth on Schedule 1(m) attached hereto.
(n) The customer list of the Sellers, which related to the Business as of
the Effective Date, as set forth on Schedule 1(n) and Schedule 1 (n-1) attached
hereto.
(o) The Sellers' goodwill.
(p) The Assets set forth in subsections (k) through (o) above, along with
the five year non-competition agreement with the Buyer in the form annexed
hereto as Exhibit 11(k), as more fully described in Section 11(k) below, are
sometimes referred to herein as the "Intangible Assets." A portion of the
Purchase Price equal to Two Hundred and Fifty Thousand and 00/100 ($250,000)
Dollars is included as full consideration for such Intangible Assets.
(q) The Sellers' accounts receivable, which relate to the Business, as set
forth on Schedule 1(q) and Schedule 1(q-1) attached hereto (the "Accounts
Receivable").
The Sellers hereby confirm the Buyer's ownership of and sole right and
authority to collect for its own account all accounts and Accounts Receivable
transferred to it under this subsection, to endorse the name of the Sellers, any
checks or other instruments received on account of such accounts and accounts
receivable and to give notice, in the Buyer's name, to the various customers and
others owing monies to the Buyer in respect of any accounts and accounts
receivable, advising such customers and others, among other things, that they
should make payment of the foregoing directly to the Buyer. The Sellers shall
transfer or deliver to the Buyer from time to time, promptly upon receipt
thereof by the Sellers, all cash or other property due the Buyer that the
Sellers may receive in respect of any accounts or Accounts Receivable
transferred to the Buyer as contemplated by this Agreement, or as otherwise due
to the Buyer.
(r) The Assets shall be conveyed free and clear of all liabilities,
obligations, liens, security interests and encumbrances of any character
whatsoever, excepting only those liabilities and obligations, if any, which are
expressly to be
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assumed by the Buyer hereunder, including, but not limited to, the Assumed
Liabilities (the "Assumed Liabilities"), as set forth on Schedule 1(r) and
Schedule 1(r-1) attached hereto.
Except for the Assumed Liabilities, if any, the Buyer shall not assume nor
be responsible for any liabilities or obligations which relate in any way to the
operation of the Business prior to the Effective Date.
SECTION 2. PURCHASE PRICE; EFFECTIVE DATE. In full consideration for
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the sale, transfer, conveyance, assignment and delivery of the Assets by the
Sellers to the Buyer and in reliance upon the representations and warranties
made herein by the Sellers and for other consideration set forth herein, the
Buyer hereby agrees to pay the Purchase Price to the Bank pursuant to the Note
as described in Section 1 above.
The parties hereto agree that the purchase and sale of the Assets and the
assumption of the Assumed Liabilities shall be accounted for as if such
transactions had occurred prior to the opening of business on April 1, 1997 (the
"Effective Date"), regardless of when the Closing in fact occurs.
SECTION 3. EXCLUDED ASSETS. The Sellers shall retain ownership of all
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of the assets of the Business, except for those assets transferred to the Buyer
pursuant to this Agreement, including, but not limited to, the corporate records
(but not the business records) of the Business, and those assets more
specifically listed on Schedule 3(a) attached hereto (the "Excluded Assets").
SECTION 4. NON-ASSUMPTION OF LIABILITIES. It is understood and agreed
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by the parties hereto that the Assets will be sold, conveyed, transferred and
assigned to the Buyer at the Closing free and clear of all liens, charges and
encumbrances whatsoever, and it is further understood and agreed by the parties
hereto that the Buyer does not assume, accept or undertake any obligations,
commitments, duties, debts or liabilities of any kind whatsoever (the
"Obligations"), except for the Assumed Liabilities assumed by the Buyer pursuant
to this Agreement as listed in Schedule 1(r) and Schedule 1(r-1) attached
hereto.
SECTION 5. CLOSING. The closing of the sale and purchase of the Assets
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provided for in Section 1 of this Agreement (the "Closing") shall take place at
the offices of First National Bank in Brookings, on the 18th day of June 1997,
or such other time and place as the parties may agree. The day on which the
Closing occurs is sometimes hereinafter referred to as the "Closing Date."
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SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. The Sellers
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warrant and represent to the Buyer and ABT as follows:
(a) Title. Except as set forth in Schedule 6(a) of this Agreement, each of
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the Sellers owns, and at the Closing shall have, good, valid and marketable
title to the Assets and full right to transfer title to the Assets free and
clear of all liens, mortgages, charges, liabilities, claims, security interests
or encumbrances of every type whatsoever.
(b) Capacity; Organization; Standing. Each of the Sellers has full
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capacity to enter into and perform under this Agreement, and all other
agreements to be entered into in connection with the transactions contemplated
hereby, (the "Other Agreements") and to consummate such transactions; and no
other consent or joinder of any other persons or corporations is required. This
Agreement has been, and each of the Other Agreements executed by the Sellers
hereunder will at the Closing, be duly authorized, executed and delivered by the
Sellers. This Agreement constitutes, and each of the Other Agreements executed
by the Sellers will constitute, the legal, valid and binding obligations of the
Sellers enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights generally or by general
equitable principles. Each of the Sellers is duly organized, validly existing
and in good standing under the laws of the State of South Dakota. Each of the
Sellers has full corporate power and authority to conduct its business as it is
now being conducted and is duly qualified to do business in each jurisdiction
where the nature of the property owned or leased, or the nature of the business
conducted by the Sellers requires such qualification. Each of the Sellers has
all necessary licenses and authority to operate its business as now being
conducted in the States of Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxx and Nebraska.
(c) Legal Proceedings; Claims. Except as set forth in Schedule 6(c) of
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this Agreement, neither Seller is a party to any pending litigation, arbitration
or administrative proceeding or investigation, with respect to or relating to
the Assets or the Business and, to the Sellers' best knowledge and belief, no
litigation, arbitration or administrative proceeding or investigation that would
have a material adverse effect on the Assets or the Business is threatened.
Except as set forth in Schedule 6(c) of this Agreement, there are no warranty or
other claims relating to any products manufactured and sold by the Sellers.
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(d) Trade Names and Trademarks, etc. With respect to the Business, the
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Sellers own or have the right to use the trade names, trademarks and PVPA
Certificates as set forth on Schedules 1(k), 1(l) and 1(m), respectively. The
Sellers have not granted, and will not grant prior to the Closing, licenses or
other rights to use such trade names, trademarks and PVPA Certificates. Except
as disclosed in Schedules 1(k) 1(l), and 1(m), no other trade names or
trademarks are owned or used by the Sellers in relation to the Business. To the
Sellers' best knowledge and belief, the operation of the Business does not
infringe on the trade names, trademarks or any other intellectual property
rights of any third party. No claim has been made that there is any such
infringement. To the Sellers' best knowledge and belief, no trade name or
trademarks of any person infringes the trade names or trademarks which relate to
the Business.
(e) Description of Material Contracts. Schedule 6(e) contains a complete
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and correct list as of the date hereof of all agreements, contracts and
commitments, obligations and understandings (the "Assigned Agreements") which
are not set forth in any other Schedule delivered hereunder, of the following
types, written or oral, which relate to the Business and to which the Sellers
are a party or by which they or any of their properties are bound, as of the
date hereof. The Assigned Agreements constitute all of the material contracts,
leases and other agreements related to the operation of the Business. All of
the Assigned Agreements constitute valid and legally binding obligations of the
parties thereto, enforceable in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights generally or by general
equitable principles, are in full force and effect and, except as otherwise
specified in Schedule 6(e), are validly assignable to the Buyer without the
consent of any party so that, after the assignment thereof to the Buyer pursuant
hereto, the Buyer will be entitled to the full benefits thereof. There is not
thereunder any existing default, or event which, after notice or lapse of time,
or both, would constitute a default or result in a right to accelerate or loss
of rights, and none of such contracts, agreements, leases, licenses or
commitments is unduly burdensome, onerous or materially adverse to the Assets or
the Business. The Sellers have not received any notice of termination of any
Assigned Agreement. True and complete copies of all of the Assigned Agreements
have been delivered to the Buyer.
No agreement, contract, commitment, obligation or undertaking listed on
Schedule 6(e) to which the Sellers are a party or by which any of their
properties are bound, except as specifically set forth in Schedule 6(e),
contains any provision which materially
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adversely affects or in the future may (so far as the Sellers can now foresee)
materially adversely affect the Assets.
(f) Default; Violations or Restrictions. Neither Seller is in default
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under, nor has any event occurred which, with the lapse of time or action by a
third party, could result in a default under any outstanding note, indenture,
mortgage, contract or agreement to which it is bound, relating to the Assets.
Except as declared in Schedule 6(f), the execution, delivery and performance of
this Agreement and of any agreement to be executed and delivered by the Sellers
pursuant hereto, and the consummation of any of the transactions contemplated
hereby or thereby will not (or with the giving of notice or the lapse of time or
both would) violate any provision of or result in the breach of, modification
of, acceleration of the maturity of obligations under, or constitute a default,
or give rise to any right of termination, cancellation or acceleration or
otherwise be in conflict with or result in a loss of contractual benefits to the
Sellers, as such relates to the Assets, under any law, order, writ, injunction,
decree, statute, rule or regulation of any court, governmental agency or
arbitration tribunal or any of the terms, conditions or provisions of any
contract, lease, note, bond, mortgage, deed of trust, indenture, license,
security agreement, agreement or other instrument or obligation by which a
Seller is a party or by which it may be bound, or require any consent, approval
or notice under the laws of any such document or instrument; or result in the
creation or imposition of any lien, claim, restriction, charge or encumbrance
upon the Assets.
(g) Court Orders and Decrees. Except as set forth on Schedule 6(g), the
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officers of the Sellers have not received written or oral notice that there is
outstanding, pending, or threatened any order, writ, injunction or decree of any
court, governmental agency or arbitration tribunal against or affecting the
Assets.
(h) Approvals and Authorizations. The Sellers have obtained all necessary
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consents, approvals or authorizations (including, but not limited to, The First
National Bank in Brookings, South Dakota and RECD)in connection with the
transactions contemplated hereby, which are required by law or otherwise in
order to make this Agreement binding upon the Sellers.
(i) Governmental Licenses. Schedule 6(i) attached hereto contains a
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correct and complete list of all governmental and administrative consents,
permits, appointments, approvals, licenses, certificates and franchises which
are required in connection with the Sellers' execution, delivery or performance
of this Agreement, all of which have been obtained and are in full
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force and effect. Neither Seller has received any notice of any violation with
respect to any such consents, permits, licenses or other regulatory orders and
which remain unabated. Except as set forth on Schedule 6(i), the Sellers are in
compliance with all Laws and Environmental Laws now or hereafter applicable to
the Business, their properties or operation as presently conducted.
(j) Hazardous Material and Nuisance. Except as disclosed on Schedule 6(j)
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attached hereto, there are no known claims or potential claims which may exist
against the Sellers relating to the Business and/or the Assets, for, with
respect to, or as direct or indirect result of, the presence on or under, or the
escape, seepage, leakage, spillage, discharge, or emission discharging, from the
real property of the Sellers of any "Hazardous Material," including, without
limitation, any losses, liabilities, damages, injuries, costs, expenses,
reasonable fees of counsel or claims asserted or arising under the Comprehensive
Environmental Response, Compensation and Liabilities Act ("CERCLA"), any so-
called "Super Fund" or "Super Lien" law or any other applicable federal, state
or local statute, law, ordinance, code, rule, regulation, order or decree now or
at any time hereafter in effect, regulating, relating to or imposing liability
or standards of conduct concerning any Hazardous Material.
(k) Employee Benefit Plans. Except as disclosed on Schedule 6(k) attached
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hereto, there is not now nor, since the Sellers have owned the Business, has
there ever been any "Employee Benefit Plan" (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")), or any
other profit sharing, deferred compensation, bonus, stock option, stock
purchase, pension or other compensation plan, or any other plan or arrangement
to benefit employees maintained or contributed to by the Sellers or any person,
firm or corporation (an "Affiliate") under "common control" (within the meaning
of Section 401(b) of ERISA) with the Sellers and in which any of the employees
of the Sellers or any Affiliate participates or is eligible to participate. No
funding deficiency exists or has existed with respect to any Employee Benefit
Plan covering any present or former employee of the Sellers or any Affiliate
which may cause or result in a lien upon any of the Assets.
(l) Absence of Certain Business Practices. Neither the Sellers, nor to
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their best knowledge and belief, has any of their respective officers, employees
or agents acting on their behalf, nor any other person acting on their behalf,
has, directly or indirectly, within the past three (3) years given or agreed to
give any gift or similar benefit to any customer, supplier, governmental
employee or other person who is or may be in a position to help or hinder the
Business (or assist the Sellers in connection with any
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actual or proposed transaction) which (i) might subject the Sellers to any
damage or penalty in any civil, criminal or governmental litigation or
proceeding, (ii) if not given in the past might have had an adverse effect on
the assets, business or operation of the Business, or (iii) if not continued in
the future, might adversely affect the Assets, the Business or its operations or
prospects, or which might subject the Sellers to suit or penalty in any private
or governmental litigation or proceeding.
(m) Brokers. The Sellers have not entered into and will not enter into any
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agreement, arrangement or understanding with any person or firm which will
result in an obligation of the Buyer or ABT to pay any finder's fee, brokerage
commission, or similar payment in connection with the transactions contemplated
by this Agreement. The Sellers have paid or will pay to AgriCapital Corporation
any and all fees in connection with the transactions contemplated by this
Agreement.
(n) Financial Statements. The Sellers have delivered to the Buyer during
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the process of the Buyer's due diligence investigation copies of all financial
statements requested by the Buyer (hereinafter collectively called the
"Financial Statements") and which are attached hereto as Exhibit 6(n). The
unaudited Financial Statements were prepared by management of the Sellers in the
ordinary course of business for periods through and including the month ending
March 31, 1997 (the "Balance Sheet Date") and are complete and correct as shown
on and as prepared from the books and records of the Business and fairly present
the financial condition of the Business as at their respective dates and the
results of the Business' operations for the periods covered thereby, and are
true and correct statements of the financial condition of the Business at such
Balance Sheet Date, and do not include or omit to state any fact which renders
such Financial Statements false or misleading.
(o) Absence of Undisclosed Liabilities and Conditions. Except as and to the
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extent reflected or reserved against on the face of the Financial Statements, or
as set forth on Schedule 6(o) attached hereto, as of the Closing Date, the
Business, to the Sellers' best knowledge and belief, had no debts, liabilities
or obligations (whether due or to become due, absolute, accrued, contingent or
otherwise) of any nature whatsoever, including, without limitation, any foreign
or domestic tax liabilities or deferred tax liabilities incurred in respect of
or measured by the Business' income, or its period prior to the Closing or any
other debts, liabilities or obligations relating to or arising out of any act,
transaction, circumstance or state of facts which occurred or existed on or
before the Closing Date, whether or not then known, due or payable. The
Financial Statements do not include any assets or liabilities of any entity
other than the Sellers nor any expense
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of any entity other than the Sellers. The Sellers do not know of any currently
existing facts that materially adversely affect or are likely in the future to
materially adversely affect the Assets.
(p) Compliance With Laws. Except as disclosed on Schedule 6(p), the
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operations and activities of the Business concerning the Assets have previously
and continue to comply in all respects with all applicable Federal, state and
local laws, statutes, codes, ordinances, rules, regulations, permits, judgments,
orders, writs, awards, decrees or injunctions (collectively, the "Laws"), as in
effect on or before the date of this Agreement, including, without limitation,
all Laws relating to seed labeling and all rules and regulations of the
Occupational Safety and Health Administration. Neither the ownership nor use of
the Assets nor the conduct of the Business as presently conducted conflicts with
the rights of any other person, firm or corporation or violates, or with or
without the giving of notice or the passage of time, or both, will violate,
conflict with or result in a default, right to accelerate or loss of rights
under, any terms or provisions of the Sellers' Certificates of Incorporation or
Bylaws as presently in effect, or any lien, encumbrance, mortgage, deed of
trust, lease, license, agreement, understanding (hereinafter collectively
referred to as "Liens"), or Laws to which either Seller is a party or by which
it or the Assets may be bound or affected. Neither Seller has received notice
of communication from any third party asserting a failure to comply with any
Laws, nor has either Seller received any notice that any authority or third
party intends to seek enforcement against it to compel compliance with any such
Laws.
(q) Taxes. As of the Signing Date all taxes, including, without
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limitation, income, property, sales, use, franchise, added value, employees'
income withholding and social security taxes, imposed by any governmental entity
whatsoever, which are due or payable by the Sellers in connection with the
Business, and all interest and penalties thereon, have been paid in full, all
tax returns required to be filed in connection therewith have been timely filed
and all deposits required by law to be made by the Sellers with respect to
employee's withholding taxes have been duly made. Neither Seller has been
delinquent in the payment of any tax, assessment or governmental charge or
deposit and, to its best knowledge, has no tax deficiency or claim outstanding,
proposed or assessed against it. Except for amounts accrued, but not payable as
of the Effective Date, (i) neither Seller is liable for the payment of any taxes
relating to the Assets or the operation of the Business, and (ii) the Buyer
shall have no liability for any taxes related to the ownership or operation of
the Assets or the Business prior to the Effective Date. Neither Seller knows of
any tax deficiency or claim outstanding, proposed, or assessed against it with
respect to any taxes, including, without limitation, income,
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property, sales, use, franchise, valued-added, employees' income withholding,
and social security taxes imposed by the United States or by an foreign country
or by any state, municipality, subdivision, or instrumentality of the United
States or of any foreign country, or by any other taxing authority that could
have a material effect on the Buyer, the Assets, or the Business, or result in
the imposition of a tax lien upon any of the Assets.
(r) Absence of Changes or Events. Without limiting the foregoing, since
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the Balance Sheet Date and through the Signing Date, to the best of the Sellers'
knowledge and belief, there has been no material adverse change in the Business.
Except as set forth in Schedule 6(r) attached hereto, since the Balance Sheet
Date, the Sellers have conducted their business only in the ordinary course and
have not:
[i] Incurred any obligation or liability, except current
liabilities for trade or business obligations incurred in the ordinary
course of business and consistent with its prior practice, none of
which liabilities materially and adversely affects the Assets or the
Business;
[ii] Mortgaged, pledged or subjected to lien, charge, security
interest or any other encumbrance or restriction on any of the Assets;
[iii] Except for the sale of Inventory, in the ordinary course of
business, sold, transferred, leased to others or otherwise disposed of
any of the Assets;
[iv] Received any notice of termination of any agreement or
suffered any damage, destruction or loss which has had or, with the
passage of time, could have a materially adverse effect on the Assets
or the Business;
[v] Made any change in their pricing, advertising or personnel
practices inconsistent with their prior practice and prudent business
practices prevailing in the industry;
[vi] Suffered any change, event or condition which, has had or may
have a materially adverse effect on the Assets, the Business or the
operations or prospects thereof;
[vii] Entered into any transaction, contract or commitment other
than in the ordinary course of business
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which had a material adverse effect on the Assets or the Business; or
[viii] Instituted, settled or agreed to settle any litigation,
action or proceeding before any court or governmental body relating to
the Sellers, the Assets or the Business.
(s) Inventories. All Inventory consists of items purchased in the ordinary
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course of the Business. All Inventory has been fully paid for or accrued by the
Sellers.
(t) Labor Relations. The Sellers, in connection with the Business, are not
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(i) a party to any collective bargaining agreement relating to any of the
employees and have not recognized and are not required to recognize and have not
received a demand for recognition by any collective bargaining representative,
(ii) a party to any contract with and had no liability to, any of their
employees, agents, consultants, officers, sales representatives, distributors or
dealers that is not cancelable by the Sellers without penalty on not more than
thirty (30) days' notice, except as set forth on Schedule 6(t) attached hereto,
(iii) subject to any strike or work stoppage in effect or threatened against the
Business nor has any strike or work stoppage been organized by any order, writ,
injunction or decree of any court or federal, state, municipal or other
governmental agency or instrumentality.
(u) Customer Lists. All agreements, arrangements or commitments with or
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respecting any customer of the Sellers to which either Seller is a party or is
bound have been described in Schedule 1(n) and Schedule 1 (n-1) attached hereto
except for those not involving a consideration of at least $100 per annum.
(v) Schedules. The Sellers have delivered to the Buyer complete and correct
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schedules, in form and substance reasonably acceptable to the Buyer, as of the
Signing Date, and complete and correct copies of the documents and other
material from which such schedules were compiled.
(w) Accuracy. No representation, warranty, covenant or statement by the
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Sellers in this Agreement, the Schedules attached hereto and the certificates or
other documents furnished or to be furnished to the Buyer pursuant hereto,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact required to be stated herein or therein or
necessary to make the statements contained herein or therein, in light of the
circumstances under which they were made, not false or materially misleading.
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SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE BUYER AND ABT. Each of
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the Buyer and ABT, jointly and severally, warrants and represents to the Sellers
as follows:
(a) Capacity. The Buyer and ABT have full right, power and capacity to
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execute, deliver and perform their respective obligations under this Agreement
and the other documents required to be executed by the Buyer or ABT in
connection herewith and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated by this Agreement will not, constitute a breach of any
term or provision of the certificate of incorporation or by-laws of the Buyer or
ABT or constitute a default under any material law, rule, regulation, indenture,
instrument, mortgage, deed of trust, or other agreement or instrument to which
the Buyer or ABT is a party or by which they are bound.
(b) Organization.
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(i) The Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada, and the Buyer has corporate
power and authority to carry on its business as now conducted and to own, lease
or operate the properties and assets now used by it in connection therewith.
The Buyer is duly qualified and in good standing to do business in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties make such qualification necessary.
(ii) ABT is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, and ABT has corporate power and
authority to carry on its business as now conducted and to own, lease or operate
the properties and assets now used by it in connection therewith. ABT is duly
qualified and in good standing to do business in each jurisdiction in which the
nature of its business or the ownership or leasing of its properties make such
qualification necessary.
(c) Consents and Approvals. No governmental license, permit or authorization,
----------------------
and no registration or filing with any court, governmental authority or
regulatory agency, is required in connection with the Buyer's and ABT's
execution, delivery or performance of this Agreement. The Buyer and ABT shall
execute, deliver and perform its obligations under this Agreement and no consent
or other approval or any other party is required to be obtained by the Buyer or
ABT in connection with the transactions contemplated hereby.
(d) Legal Proceedings. Neither ABT nor the Buyer is a party to or affected by
-----------------
any pending litigation, arbitration or any
14
governmental proceeding or investigation that would in any manner affect its
entering into this Agreement or performing the transactions contemplated hereby
or that might result in any material and adverse change in the financial
condition, business or properties of the Buyer or ABT and to the best of their
respective knowledge no such litigation, arbitration, proceeding or
investigation is threatened.
(e) Misrepresentations and Omissions. No representation, warranty, covenant or
--------------------------------
statement by the Buyer or ABT in this Agreement, any Exhibit attached hereto,
the Schedules attached hereto and the certificates or other documents furnished
or to be furnished to the Sellers pursuant hereto (including the Schedules, if
any, provided for in this Section 7 and Exhibits thereto), contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact required to be stated herein or therein or necessary to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not false or materially misleading.
(f) Binding Obligation. This Agreement, and any other agreement required to
------------------
be delivered by the Buyer or ABT pursuant to this Agreement, has been duly
executed and delivered by the Buyer and ABT and constitutes the legal, valid and
binding obligation of the Buyer and ABT, enforceable against the Buyer and ABT
in accordance with its terms, except to the extent that such enforceability may
be limited by general principles of equity or bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally. All
action of the Board of Directors of the Buyer and ABT and all other corporate
action necessary to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby has been
duly and validly taken.
(g) Financial Statements. ABT has delivered to the Sellers a copy of its most
--------------------
recent Form 10-KSB, as amended, and Form 10-QSB filed by ABT with the Securities
and Exchange Commission (collectively, the "ABT Financial Statements"), which
fairly present the consolidated financial condition of ABT as of June 30, 1996
and December 31, 1996, respectively. Except as disclosed in the ABT Financial
Statements, the Buyer has no material debts, liabilities or obligations of any
nature whatsoever relating to or arising out of any act, transaction,
circumstance or state of facts which occurred or existed on or before the date
of the ABT Financial Statements, whether or not then known, due or payable. To
the best knowledge and belief of the Buyer and ABT, there has been no material
adverse change in financial condition of ABT since the date of the ABT Financial
Statements and through the Signing Date.
15
(h) Brokers; Finders. No agent, broker, investment banker, person or firm
----------------
acting on behalf of the Buyer or ABT or any firm or corporation affiliated with
the Buyer or ABT or under their authority is or will be entitled to any brokers'
or finders' fee or any other commission or similar fee directly or indirectly
from the Sellers or any entity affiliated with the Sellers in connection with
any of the transactions contemplated hereby.
SECTION 8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
-----------------------------------------------------------
(a) Survival of Representations and Warranties. All representations and
------------------------------------------
warranties made by the Sellers or the Buyer and ABT in this Agreement,
including, without limitation, all representations and warranties made in any
Exhibit or Schedule hereto or certificate delivered hereunder, shall survive the
Closing until and through the later of the second anniversary of the Closing
Date or the date set forth in this Agreement (the "Survival Date").
(b) Indemnification by Sellers. The Sellers hereby agree to indemnify, defend
--------------------------
and hold harmless the Buyer and ABT from and against all liabilities, losses,
costs or damages whatsoever (including expenses and reasonable fees of legal
counsel) (collectively, "Damages"), arising out of or from or are based upon (i)
the inaccuracy in any material respect of any representation or warranty
contained in Section 6 made by the Sellers; (ii) the non-performance by the
Sellers in any material respect of any covenant, agreement or obligation to be
performed by the Sellers under this Agreement; (iii) the non-compliance of the
provisions of any applicable bulk transfer laws in connection with the sale of
the Assets to the Buyer; (iv) any liability relating to the Business other than
the Assumed Liabilities set forth on Schedule 1(r) and Schedule 1(r-1) prior to
the Signing Date; (v) the legal proceedings set forth on Schedule 6(c); (vi) any
potential environmental claims set forth on Schedule 6(j); (vii) the Employee
Benefit Plans set forth on Schedule 6(k); and (viii) any liability relating to
the Sellers' termination of employees of the Business.
(c) Indemnification by Buyer. The Buyer hereby agrees to indemnify, defend
------------------------
and hold harmless the Sellers from and against all Damages arising out of or
from or are based upon (i) the inaccuracy in any material respect of any
representation or warranty contained in Section 7 made by the Buyer; (ii) the
non-performance by the Buyer in any material respect of any covenant, agreement
or obligation to be performed by the Buyer under this Agreement; (iii) any
liability relating to the Assumed Liabilities set forth on Schedule 1(r) and
Schedule 1(r-1); and (iv) any
16
liabilities arising out of the operations of the Business by Buyer after the
Closing Date.
(d) Defense of Claims. Whenever any claim shall arise for indemnification
------------------
hereunder, the party entitled to indemnification hereunder (the "Indemnitee")
shall notify the indemnifying party (the "Indemnitor") in writing within 20 days
after the Indemnitee has actual knowledge of the facts constituting the basis
for such claim (the "Notice of Claim"). The Notice of Claim shall specify all
facts known to the Indemnitee giving rise to such indemnification claim and the
amount or an estimate of the amount of the liability arising therefrom.
If the facts giving rise to any such indemnification shall involve any actual,
threatened or possible claim or demand by any person against the Indemnitee, the
Indemnitor shall be entitled (without prejudice to the right of the Indemnitee
to participate at its expense through co-counsel of its own choosing) to contest
or defend such claim at its expense and through counsel of its own choosing if
the Indemnitor gives written notice of its intention to do so to the Indemnitee
within 30 days after receipt of the Notice of Claim.
Notwithstanding anything to the contrary contained herein, (i) if there is a
reasonable probability that the Damages may materially and adversely affect the
Indemnitee other than as a result of money damages or other money payments, the
Indemnitee shall have the right to defend, compromise or settle the claim;
provided, however, in such event, if the Indemnitee shall compromise or settle
-------- -------
such claim without the approval of the Indemnitor, the Indemnitor shall not be
bound by such compromise or settlement, and (ii) the Indemnitor shall not,
without the Indemnitee's written consent, settle or compromise the claim or
consent to entry of any judgment that does not include as an unconditional term
thereof the release by the claimant or the plaintiff of the Indemnitee from all
liability in respect of the claim.
Notwithstanding any provision of this Agreement to the contrary, no claim for
indemnification pursuant to this Section 8 by any of the parties hereto shall be
asserted or claimed except to the extent of damages exceeding, in the aggregate,
the sum of $25,000. However, the afore-mentioned minimum damages shall not be
applicable to any claims for indemnification relating to the accounts payable of
the Sellers which the Buyer is not assuming as set forth on Schedule 8(b)
hereto.
SECTION 9. COVENANTS OF THE SELLERS. The Sellers hereby covenant and
------------------------
agree:
17
(a) Further Assurances. The Sellers hereby agree that from time to time at
------------------
the reasonable request of the Buyer or ABT, and without further consideration,
to execute and deliver such additional instruments and to take such other action
as the Buyer or ABT may reasonably require to convey, assign, transfer and
deliver the Assets and otherwise to carry out the terms of this Agreement.
(b) Access to Information. Subsequent to the date hereof and prior to the
---------------------
Closing Date, the Sellers will continue to give to the Buyer, ABT, their
counsel, accountants, and other representatives, full and free access to all
properties, books, contracts, commitments and records of the Sellers relating to
the Assets so that the Buyer and ABT may have full opportunity to make such
investigation as it shall desire. No information or knowledge obtained either
independently or as a result of investigation of the Sellers shall diminish or
otherwise affect the representations and warranties of the Sellers. In the
event that this transaction is not completed for any reason, the Buyer, ABT and
their representatives agree to keep confidential and not disclose any matters
relating to the Business.
(c) Closing Documents. The Sellers shall execute and deliver all instruments
-----------------
and documents required under Section 11 as a condition precedent to the Closing
under Section 11 hereof and take all action required to carry out the terms of
this Agreement and to consummate the transactions contemplated hereby.
(d) Conduct of Business. From the date of this Agreement to the Closing Date,
-------------------
except as expressly disclosed in the Schedules to this Agreement, each Seller
shall conduct its operations as engaged in at the date of this Agreement
according to its ordinary course of business, shall maintain its records and
books of account in a manner that fairly and currently reflects its financial
condition and results of operations and shall not engage in any transactions
other than as contemplated by this Agreement.
(e) Employment. All employees of the Sellers employed in connection with
----------
the Business will be terminated effective as of the Closing Date. The Sellers
shall pay all such employees, on or before five (5) business days after the
Closing Date, all compensation earned by them through the Closing Date. The
Buyer shall assume the vacation pay but will not be liable for any severance pay
due or owing to any employee of the Business and the Sellers shall indemnify and
hold harmless the Buyer and ABT for any losses or expenses incurred by the Buyer
and/or ABT as a result of any employee terminations, as set forth in Section
8(b) hereof. The Sellers agree to use their best efforts to assist the Buyer in
hiring any of such employees as the Buyer determines in their sole discretion.
18
(f) Name Change. Each Seller shall deliver to the Buyer, within three
------------
business days following the Closing Date, a Certificate of Amendment to its
Certificate of Incorporation, changing its name to a name reasonably acceptable
to the Buyer.
SECTION 10. COVENANTS OF THE BUYER AND ABT. The Buyer and ABT hereby
------------------------------
covenant and warrant as follows:
(a) Noninterference. The Buyer and ABT shall not take or omit to take any
---------------
action that (i) if taken or omitted on or before the date of this Agreement,
would make untrue any of the representations and warranties contained in Section
7 of this Agreement, or (ii) would interfere with the Buyer's or ABT's ability
to perform or would prevent performance of any of its obligations under this
Agreement or any of the other agreements or instruments provided for herein.
(b) Closing Documents. The Buyer and ABT shall execute and deliver all
-----------------
instruments and documents required under Section 12 as a condition precedent to
the Closing hereof and take all action required to carry out the terms of this
Agreement and to consummate the transactions contemplated hereby.
(c) Payment of Sales and Personal Property Taxes. The Buyer will pay all
--------------------------------------------
taxes (exclusive of the Sellers' income taxes) payable in connection with the
sale, assignments, transfers, conveyances and deliveries hereunder including all
applicable sales tax with respect to the sale of the Assets exclusive of income
taxes of the Seller.
(d) Access. The Buyer agrees to preserve and provide the Sellers and their
------
representatives with access to all such business records that are provided by
the Sellers to the Buyer in connection with this transaction at all times for
all reasonable purposes for a period of seven (7) years following the Closing.
(e) Employment Opportunities. The Buyer agrees to use diligent efforts
------------------------
to offer employment opportunities to employees terminated by the Sellers at the
Buyer's sole discretion.
SECTION 11. CONDITIONS PRECEDENT TO THE BUYER'S AND ABT'S OBLIGATIONS.
---------------------------------------------------------
The obligations of the Buyer and ABT under this Agreement are subject to the
following conditions (any of which may be waived in writing in whole or in part
by the Buyer or ABT, as applicable):
(a) There shall not have been any material breach of the representations,
warranties, covenants and agreements of the
19
Sellers contained in this Agreement or the Schedules hereto and all such
representations and warranties shall be true at all times on or before the
Closing as if given at such time, except to the extent that any such
representation or warranty is expressly stated to be true as of some other time.
(b) The Sellers shall have performed and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to be
performed or complied with by them prior to or at the Closing Date. All
documents and instruments required in connection with this Agreement shall be
reasonably satisfactory in form and substance to Snow Xxxxxx Xxxxxx P.C.,
counsel for the Buyer.
(c) The Buyer shall have received a certificate dated the date of the Closing
and signed by the Sellers, certifying that the conditions specified in
subsections (a) and (b) above have been fulfilled.
(d) The Buyer shall have received a certificate dated the date of the Closing
and signed by the Sellers, certifying that there has been no material adverse
change in the Assets since the Signing Date.
(e) The Sellers shall have obtained and delivered to the Buyer any required
consents or approvals of any other third parties whose consent is required to
the transactions contemplated hereunder including, without limitation, all
consents on approvals required to assume the Bank Debt.
(f) The Buyer shall have received a written opinion of counsel for the Sellers
dated as of the Closing Date, in the form of Exhibit 11(f) hereto.
(g) The Buyer shall have received a xxxx of sale or bills of sale and
documentation and such other good and sufficient instruments of transfer and
conveyance as, in the reasonable opinion of counsel to the Buyer, shall be
effective to vest in the Buyer good and valid title to the Assets, as herein
provided.
(h) The Buyer shall have received the Assets sold to Buyer hereunder as
described in Section 1 hereof.
(i) The Buyer shall have received certified resolutions of the Sellers' Board
of Directors authorizing the transactions contemplated by this Agreement.
20
(j) The Buyer shall have received at the Closing a satisfactory title opinion,
or title insurance with regard to the real property interests transferred to the
Buyer.
(k) The Buyer shall have received from the Sellers pursuant to Section 1(p)
above, a non-competition agreement in the form of Exhibit 11(k) attached hereto,
whereby the Sellers agree for a period of five years from the Closing Date, not
to compete with the Buyer or ABT in selling any products to current customers of
the Business as existing on the Closing Date. Such agreement shall be
reasonably satisfactory in form and substance to counsel for the Buyer.
(l) The Buyer shall have received from Xxxx X. Xxxxxxx a non-competition
agreement in a form to be negotiated and agreed to by the parties. Such
agreement shall be reasonably satisfactory in form and substance to counsel for
the Buyer.
(m) The Buyer shall have completed its due diligence review to its
satisfaction and, among other things; (i) determined that a satisfactory
percentage of customers of the Sellers will continue to do business with the
Buyer following the Closing; and (ii) agreed with the Sellers upon a value of
all of the Assets.
(n) The Buyer shall have received assumption and assignment agreements for
each agreement as set forth on Schedules 11(n) and 11(n-1) attached hereto,
requiring such agreement to be executed in order to be assigned and such other
good and sufficient instruments of conveyance, assignment and transfer, in form
and substance satisfactory to Buyer, as shall be effective to vest in the Buyer
good and marketable to the Assets to put the Buyer in actual possession and
operating control thereof and to assist the Buyer in exercising all rights with
respect thereto.
(o) All persons mutually agreed to between the Sellers and the Buyer shall
have entered into employment agreements with the Buyer.
(p) Since the Balance Sheet Date and through the Closing Date, there shall not
have occurred any material change in the Assets or the condition (financial or
otherwise) of the Business, its properties or prospects.
(q) The Buyer shall have received all contracts, customer files and business
records relating to the Assets, but excluding, lists, corporate records and any
other Excluded Assets.
(r) The Buyer shall have received all documents required to be delivered to
the Buyer under any other provision of this Agreement.
21
(s) The Buyer shall have received Certificates of Incumbency identifying the
officers and directors of the Sellers immediately before Closing.
(t) The Buyer shall have received copies of executed Certificates of Amendment
to the Certificate of Incorporation of each Seller changing their respective
names to names reasonably acceptable to Buyer.
SECTION 12. CONDITIONS PRECEDENT TO THE SELLERS' OBLIGATIONS. The obligations
------------------------------------------------
of the Sellers under this Agreement are subject to the following conditions (any
of which may be waived in writing in whole or in part by the Sellers):
(a) There shall not have been any material breach of the representations,
warranties, covenants and agreements of the Buyer or ABT contained in this
Agreement, and all such representations and warranties shall be true at all
times at and before the Closing, except to the extent that any such
representation or warranty is expressly stated to be true as of some other time.
(b) The Buyer and ABT shall have performed and complied in all material
respects with all agreements and conditions required by this Agreement to be
performed or complied with by it. All documents and instruments required in
connection with this Agreement shall be reasonably satisfactory in form and
substance to Xxxxxxxxxxxxxx, Xxxxxx & Xxxxxxxx, counsel for the Sellers.
(c) The Sellers shall have received a certificate dated the date of the
Closing and signed by the Buyer and ABT, certifying that the conditions
specified in subsections (a) and (b) above have been fulfilled.
(d) The Sellers shall have received a written opinion of counsel for the Buyer
and ABT, dated as of the date of Closing, in the form of Exhibit 12(d) attached
hereto.
(e) At the Closing, the Sellers shall have received the Purchase Price through
the assumption of accounts payable, accrued expenses and Bank Debt, as set forth
in Section 2 hereof.
(f) The Sellers shall have received copies of the minutes and resolutions of
the Board of Directors of the Buyer and ABT showing the authorization and
approval by such Boards of the execution and delivery by the Buyer and ABT to
the Sellers of this Agreement and the agreements and instruments provided for
herein and of the performance of the obligations of the Buyer and ABT under this
Agreement and such other instruments and agreements, certified as
22
of a recent date by each Secretary or another officer of the Buyer and ABT, as
the Sellers may reasonably request.
(g) The Sellers shall have received a certificate of incumbency identifying
the officers and directors of the Buyer and ABT immediately before Closing.
(h) The Sellers shall have received an officer's certificate of the Buyer and
ABT evidencing its authority to execute this Agreement and to consummate the
transactions contemplated hereby.
(i) The Sellers shall have received all documents required to be delivered to
the Sellers under any other provision of this Agreement.
SECTION 13. CONDITIONS PRECEDENT TO OBLIGATIONS OF BOTH SELLERS AND BUYER.
-------------------------------------------------------------
The obligations of both the Sellers and the Buyer to complete this transaction
shall be subject to the fulfillment at or prior to the Closing Date of the
following conditions:
(a) No Injunctions. No action or proceeding shall have been instituted or
--------------
threatened by any public authority or private person prior to the Closing before
any court or administrative body to restrain, enjoin or otherwise prevent the
consummation of this transaction or to recover any damages or obtain other
relief as a result of this transaction.
(b) Due Diligence. The Sellers and the Buyer shall each have been afforded
-------------
the opportunity to complete their due diligence and conduct a review of the
business and prospects of the other, and shall be reasonably satisfied as to
such business and prospects.
(c) Consents. Any consent to the transaction considered by the Sellers or the
--------
Buyer to be necessary or advisable under any agreement or contract, the
withholding of which might have, in the judgment of the Sellers or the Buyer, a
material adverse effect on the financial condition of the other party, shall
have been obtained.
(d) Corporate Proceedings. All corporate and other proceedings in connection
---------------------
with the transactions contemplated by this Agreement, and all documents and
instruments incident thereto, shall be reasonably satisfactory in substance and
form to the Sellers and the Buyer and their counsel, and the Sellers and the
Buyer and their counsel shall have received all certified resolutions of the
Boards of Directors of the Sellers and the Buyer authorizing the transactions
contemplated by this Agreement, and such other
23
certificates, documents and instruments, or copies thereof, certified if
requested, as may be reasonably requested.
SECTION 14. SUBSEQUENT EVENTS. The Buyer may have prepared, at its
-----------------
own expense, audited financial statements, of the Business ("Audited Financial
Statements"), certified by KPMG Peat Marwick LLP, independent certified public
accountants, for all periods required of ABT under the rules and regulations of
the Securities and Exchange Commission (the "Rules"). The Sellers hereby agree
to provide the Buyer, ABT and their accountants with full and free access to the
books and records of the Business and to cooperate fully with all such
representatives of the Buyer so that the Audited Financial Statements may be
prepared on a timely basis.
SECTION 15. TERMINATION. (a) This Agreement may be terminated at
-----------
any time prior to the Closing Date:
(i) By mutual written consent of the Sellers and the Buyer; or
(ii) By the Buyer or the Sellers if this transaction is not completed by
June 30, 1997; provided, however, if one party is in compliance with the terms
and conditions of this Agreement and is ready to close then that party will
provide the other party with notice of its intent to close and provide such non-
compliant party with ten days in order to close the transaction, unless extended
by mutual agreement between the Buyer and the Sellers; or
(iii) By the Buyer or the Sellers, if any court of competent
jurisdiction in the United States or other United States governmental body shall
have issued an order, decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting the other party from undertaking the
transactions contemplated by this Agreement and such order, decree, ruling or
other action shall not have been withdrawn by 30 days after the date on which
such order, decree, ruling or other action was first issued or taken; or
(iv) By the Sellers or the Buyer if a proceeding in bankruptcy or
reorganization of the Buyer, ABT, or the Sellers or the readjustment or any of
its debts under the Bankruptcy Act, as amended, or any part thereof, or under
any other laws, whether state or federal, for the relief of debtors now or
hereafter existing, shall be commenced by or against the Buyer or the Sellers;
or
24
(v) By the Buyer, if either Seller has materially breached any of its
representations, warranties or covenants under this Agreement; or
(vi) By the Sellers, if the Buyer or ABT has materially breached any of
its representations, warranties or comments under this Agreement.
(b) In the event of termination of this Agreement, Sections 20, 21, 22 and 27
of this Agreement shall survive any such termination.
SECTION 16. BULK SALE ACT. The Sellers and the Buyer agree to waive
-------------
compliance with all applicable State Bulk Sales Acts and the rules and
regulations promulgated thereunder. However, the Sellers shall indemnify and
hold harmless the Buyer for any losses or expenses incurred by the Buyer as a
result of such waiver of compliance with such Bulk Sales Acts, as set forth in
Section 8(b) hereof.
SECTION 17. ORDERLY TRANSFER. The Sellers shall, and hereby agrees to,
----------------
cooperate with the Buyer in all reasonable ways, at no direct or indirect cost
to the Sellers, in effecting any orderly transfer to the Buyer of the Assets to
be acquired by the Buyer hereunder.
SECTION 18. PARTIES IN INTEREST. This Agreement shall be binding upon and
-------------------
shall inure to the benefit of the parties and their successors and assigns.
Nothing herein expressed or implied is intended or shall be construed to confer
upon or to give any person, firm, or corporation other than the parties hereto
any rights or remedies under or by reason hereof.
SECTION 19. ENTIRE AGREEMENT. This instrument, including the Schedules
----------------
and Exhibits hereto, contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof and shall not be
modified or affected by any offer, proposal, statement or representation, oral
or written, made by or for any party in connection with the negotiation of the
terms hereof. All references herein to this Agreement shall specifically
include, incorporate and refer to the Schedules and Exhibits attached hereto
which are hereby made a part hereof. There are no representations, promises,
warranties, covenants, undertakings or assurances (express or implied) other
than those expressly set forth or provided for herein and in the other documents
referred to herein. This Agreement may not be modified or amended orally, but
only by a writing signed by all the parties hereto.
25
SECTION 20. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement and
--------------------------------------
all rights and obligations hereunder shall be governed by, and construed in
accordance with, the laws of the State of Nevada, applicable to agreements made
and to be performed wholly within said State, without regard to the conflicts of
laws principles of such State.
SECTION 21. EXPENSES. Each party hereto shall pay its own expenses and
--------
fees incidental to the preparation of this Agreement, the carrying out of the
provisions of this Agreement and the consummation of the transactions
contemplated hereby.
SECTION 22. SEVERABILITY. If any part of this Agreement is held to be
------------
unenforceable or invalid under, or in conflict with, the applicable law of any
jurisdiction, the unenforceable, invalid or conflicting part shall, to the
extent permitted by applicable law, be narrowed or replaced, to the extent
possible, with a judicial construction in such jurisdiction that effectuates the
intent of the parties regarding this Agreement and such unenforceable, invalid
or conflicting part. To the extent permitted by applicable law, notwithstanding
the unenforceability, invalidity or conflict with applicable law of any part of
this Agreement, the remaining parts shall be valid, enforceable and binding on
the parties.
SECTION 23. NOTICES.
-------
(a) All notices, requests, consents and demands by the parties hereunder shall
be delivered by hand, or telecopier at the applicable telecopier numbers
designated below (with confirmation received) by recognized national overnight
courier or by deposit in the United States mail, postage prepaid, by registered
or certified mail, return receipt requested, addressed to the party to be
notified at the addresses set forth below:
(i) if to the Sellers to:
The Xxxxxxx Company
X.X. Xxx 00
Xxxxxxxxx, Xxxxx Xxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxxxxxxxxxx, Xxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000-0000
Attention: Miles X. Xxxxxxxxxx, Esq.
26
Telecopier No.: (000) 000-0000
(ii) if to the Buyer or ABT to:
AgriBioTech, Inc.
0000 Xxxxxx Xxxx, Xxxxx X-00
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, President
Telecopier No.: (000) 000-0000
with a copy to:
Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
(b) Notices shall be deemed effective five (5) days after being mailed by
certified mail, three (3) days after being sent by facsimile transmission
followed by being mailed by first class mail, one (1) day after being sent by
overnight courier service with morning delivery and immediately when personally
delivered. Any party hereto may change the address specified in Section 23(a) by
written notice to the other parties hereto.
SECTION 24. AMENDMENT; NON-WAIVERS. Any provision of this Agreement may be
----------------------
amended, if and only if, such amendment is written and signed by each party to
this Agreement. Neither any failure nor any delay on the part of any party to
this Agreement in exercising any right, power or privilege hereunder shall
operate as a waiver of any rights of such party, unless such waiver is made by a
writing executed by the party and delivered to the other parties hereto, nor
shall a single or partial exercise of any right preclude any other or further
exercise of any other right, power or privilege accorded to any party hereto.
SECTION 25. ASSIGNMENT. This Agreement may not be assigned by any party
----------
without the prior written consent of the other parties.
SECTION 26. DISCLOSURE. From and after the date of this Agreement until the
----------
Closing or the termination of this Agreement, the Sellers will not (i) solicit
or encourage inquiries or proposals with respect to, or furnish any information
relating to, or participate in, any negotiations or discussions concerning the
sale of the Assets with anyone other than the Buyer; or (ii) unless otherwise
required by law, neither party shall make any public
27
announcement without prior approval of the language of such announcement by the
other.
SECTION 27. CONFIDENTIALITY. From and after the date of this Agreement until
---------------
the Closing or the termination of this Agreement, the Buyer and its employees
and representatives and the Sellers and their representatives will maintain the
confidentiality of all documents and information of a confidential nature
disclosed to the other party in the course of their negotiations and the Buyer's
due diligence review and will in no event use any confidential information for
any purpose other than for the evaluation of the transactions contemplated
herein and the financing of this transaction and in the event of termination of
this Agreement will destroy all copies of documentation which each party may
have delivered to the other party.
SECTION 28. MISCELLANEOUS. Each of the parties hereto shall use its best
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efforts to take or cause to be taken, and to cooperate with the other parties
hereto to the extent necessary with respect to, all action, and to do, or cause
to be done, consistent with applicable law, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 29. HEADINGS. The headings contained herein are for reference
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purposes only and shall not affect the meaning or interpretation of this
Agreement.
28
SECTION 30. COUNTERPARTS. This Agreement may be executed and delivered in
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multiple counterpart copies, each of which shall be an original and all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first above written.
THE XXXXXXX COMPANY (SELLER)
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx, President
NORTHERN PLAINS SEED COMPANY (SELLER)
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx, President
XXXXXXX ACQUISITION COMPANY (BUYER)
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx, Vice President
AGRIBIOTECH, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx, Vice President
29
SCHEDULES TO THE ASSET PURCHASE AGREEMENT
AMONG THE XXXXXXX COMPANY, NORTHERN PLAINS SEED COMPANY,
XXXXXXX ACQUISITION COMPANY AND AGRIBIOTECH, INC.
-------------------------------------------------
Schedule No. Description
----------- -----------
1 The Purchase Price
1(a) The Xxxxxxx Inventory
1(a-1) The Northern Plains Inventory
1(b) The Xxxxxxx Real Property
1(b-1) The Northern Plains Real Property
1(c) The Xxxxxxx Buildings and Improvements
1(c-1) The Northern Plains Buildings and Improvements
1(d) The Xxxxxxx Equipment and Machinery
1(d-1) The Northern Plains Equipment and Machinery
1(e) The Xxxxxxx Office Furniture and Fixtures
1(e-1) The Northern Plains Office Furniture and Fixtures
1(f) The Xxxxxxx Automobiles, Trucks, Forklifts
and Other Vehicles
1(f-1) The Northern Plains Automobiles, Trucks, Forklifts
and Other Vehicles
1(h) The Xxxxxxx Pre-Paid Assets
1(h-1) The Northern Plains Pre-Paid Assets
1(i) The Other Assets
1(j) Cash or Cash Equivalents
1(k) The Trade Names
1(l) The Trademarks
1(m) Plant Variety Protection Act Certificates
1(n) The Xxxxxxx Customer List
1(n-1) The Northern Plains Customer List
1(q) The Xxxxxxx Accounts Receivable
1(q-1) The Northern Plains Accounts Receivable
1(r) The Xxxxxxx Assumed Liabilities
1(r-1) The Northern Plains Assumed Liabilities
3(a) The Excluded Assets
6(a) Exceptions to Title
6(c) Legal Proceedings; Claims
6(e) Material Agreements, Contracts, Commitments,
Obligations and Understandings
6(f) Violations or Restrictions
6(g) Court Orders and Decrees
6(i) Governmental Licenses, Permits, Etc.
6(j) Environmental Claims
6(k) Employee Benefit Plans
6(o) The Sellers' Undisclosed Liabilities and Conditions
6(p) Compliance with Laws
6(r) Changes Outside of Ordinary Course
6(t) Non-Cancelable Labor Contracts
8(b) Indemnified Actions Less Than $25,000
11(n) List of Xxxxxxx Agreements to be Assigned and Assumed
11(n-1) List of Northern Plains Agreements to be Assigned
and Assumed
30
EXHIBITS TO THE ASSET PURCHASE AGREEMENT
AMONG THE XXXXXXX COMPANY, NORTHERN PLAINS SEED COMPANY,
XXXXXXX ACQUISITION COMPANY AND AGRIBIOTECH, INC.
-------------------------------------------------
Exhibit No. Description
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6(n) The Sellers' Financial Statements
11(f) Form of the Sellers' Legal Opinion
11(k) Form of Non-Competition Agreement
12(d) Form of the Buyer's Legal Opinion
