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ASSET PURCHASE AGREEMENT
DATED
AUGUST 4, 1997
BY AND AMONG
PACIFIC SUNWEAR OF CALIFORNIA, INC.
(AS BUYER),
GOOD VIBRATIONS, INC.,
(AS SELLER)
AND
X.X. XXXXXXXX,
AND
X.X. XXXXXXXX, AS TRUSTEE OF THE
X.X. XXXXXXXX LIVING REVOCABLE TRUST,
AND
XXXXX XXXXXXXX AND XXXXX XXXXXXXX, AS TRUSTEE OF THE
XXXXX XXXXXXXX LIVING REVOCABLE TRUST
(SOLELY AS INDEMNITORS)
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS..................................................... 1
1.1 Definitions..................................................... 1
ARTICLE II SALE OF ASSETS, ASSUMPTION OF CERTAIN LIABILITIES AND
RELATED TRANSACTIONS............................................ 4
2.1 Purchase and Sale of Assets..................................... 4
2.2 Assumption of Certain Liabilities............................... 6
2.3 Purchase Price.................................................. 7
2.4 Extended Cost Inventory......................................... 7
2.5 Payment of Purchase Price....................................... 7
ARTICLE III CLOSING....................................................... 8
3.1 Closing Date.................................................... 8
3.2 Items to be Delivered at the Closing By Seller.................. 8
3.3 Items to be Delivered at the Closing by Buyer................... 9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER AND X.X. XXXXXXXX...... 9
4.1 Organization and Related Matters................................ 9
4.2 Authorization; No Conflicts..................................... 9
4.3 Financial Statements; Changes; Contingencies.................... 10
4.4 Tax and other Returns and Reports............................... 11
4.5 Assumed Contracts............................................... 11
4.6 Title to and Condition of Purchased Assets; Lease............... 12
4.7 Legal Proceedings............................................... 13
4.8 Accounting Records; Internal Controls........................... 13
4.9 Insurance....................................................... 14
4.10 Compliance; Business Practices; Permits......................... 14
4.11 No Brokers or Finders........................................... 14
4.12 Inventory....................................................... 15
4.13 Employees....................................................... 15
4.14 Intellectual Property........................................... 15
4.15 Gift Certificates and Store Credits............................. 15
4.16 Sufficiency of Purchased Assets................................. 15
4.17 Accuracy of Information......................................... 15
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER......................... 16
5.1 Organization and Related Matters................................ 16
5.2 Authorization................................................... 16
5.3 No Conflicts.................................................... 16
5.4 No Brokers or Finders........................................... 16
5.5 Due Diligence................................................... 17
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Page
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ARTICLE VI COVENANTS WITH RESPECT TO CONDUCT OF SELLER BEFORE CLOSING..... 17
6.1 Access......................................................... 17
6.2 Material Adverse Changes; Financial
Statements..................................................... 17
6.3 Conduct of Business............................................ 17
6.4 Permits and Approvals.......................................... 18
6.5 Ticketing of Merchandise....................................... 18
6.6 Xxxx-Xxxxx..................................................... 18
6.7 Layaway Policy/Frequent Buyer Program.......................... 18
6.8 Schedules...................................................... 19
ARTICLE VII ADDITIONAL CONTINUING COVENANTS................................ 19
7.1 Employment Matters............................................. 19
7.2 Further Assurances............................................. 19
7.3 Expenses and Taxes............................................. 20
7.4 Allocation of Purchase Price................................... 20
7.5 Notification to Vendors........................................ 20
7.6 Non-Solicitation of Customers.................................. 20
7.7 Payment of Costs Associated with Lease Assignments............. 20
ARTICLE VIII CONDITIONS OF PURCHASE; TERMINATION OF OBLIGATIONS........... 21
8.1 General Conditions............................................. 21
8.2 Conditions to Obligations of Buyer............................. 21
8.3 Conditions to Obligations of Seller............................ 22
8.4 Termination of Agreement....................................... 23
8.5 Effect of Termination.......................................... 23
ARTICLE IX INDEMNIFICATION................................................ 24
9.1 Obligations of the Selling Parties............................. 24
9.2 Obligations of Buyer........................................... 24
9.3 Procedure...................................................... 24
9.4 Not Exclusive Remedy........................................... 25
9.5 Offset......................................................... 25
9.6 Survival of Representations and Warranties..................... 25
ARTICLE X GENERAL........................................................ 26
10.1 Amendments; Waivers............................................ 26
10.2 Entire Agreement............................................... 26
10.3 Governing Law.................................................. 26
10.4 Headings....................................................... 26
10.5 Counterparts................................................... 26
10.6 Publicity and Reports.......................................... 27
10.7 Parties in Interest............................................ 27
10.8 Notices........................................................ 27
10.9 Expenses....................................................... 28
10.10 Remedies; Waiver............................................... 28
10.11 Attorney's Fees................................................ 28
10.12 Severability................................................... 28
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EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A - Xxxx of Sale
EXHIBIT B - Assignment and Assumption Agreement
EXHIBIT C - Opinion of Seller's Counsel
EXHIBIT D - Opinion of Buyer's Counsel
EXHIBIT E - Noncompetition Agreements
EXHIBIT F - Consulting Agreement
SCHEDULES
Schedule 1.1 - Acquired Stores
Schedule 2.1.2 - Excluded Assets
Schedule 3.2 - Lease Amendments
Schedule 4.1 - Shareholders of Seller
Schedule 4.2 - Permits and Approvals
Schedule 4.3 - Financial Statements
Schedule 4.5 - Assumed Contracts
Schedule 4.6 - Leases
Schedule 4.7 - Legal Proceedings
Schedule 4.10 - Nontransferable Permits
Schedule 4.14 - Intellectual Property
Schedule 4.16 - Sufficiency of Purchased Assets
Schedule 7.1 - Selected Employees
Schedule 7.4 - Allocation of Purchase Price
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is entered into this 4th day of August,
1997, by and among Pacific Sunwear of California, Inc., a California corporation
("BUYER"), Good Vibrations, Inc., a Florida corporation ("SELLER"), X.X.
Xxxxxxxx ("X.X. XXXXXXXX"), X.X. Xxxxxxxx, as trustee of the X.X. Xxxxxxxx
Living Revocable Trust (the "GFS TRUST") and, solely for purposes of joining in
the indemnification obligations of Seller, X.X. Xxxxxxxx and the GFS Trust as
specified in Article IX hereof, Xxxxx Xxxxxxxx ("XXXXX XXXXXXXX") and Xxxxx
Xxxxxxxx, as trustee of the Xxxxx Xxxxxxxx Living Revocable Trust (the "AS
TRUST").
R E C I T A L S
WHEREAS, Seller operates a retail apparel business in Florida and
desires to sell certain related assets and cause Buyer to assume certain
liabilities; and
WHEREAS, the GFS Trust and the AS Trust collectively own a majority of
the outstanding capital stock of Seller; and
WHEREAS, Buyer desires to purchase certain assets and assume certain
liabilities of Seller on the terms and conditions set forth in this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual promises contained
herein and intending to be legally bound, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided:
(a) the terms defined in this Agreement include the plural as well as
the singular,
(b) all accounting terms not otherwise defined herein have the meanings
assigned under generally accepted accounting principles as in effect on the date
hereof,
(c) all references in this Agreement to designated "ARTICLES,"
"SECTIONS," "SUBSECTIONS" and other subdivisions are to the designated Articles,
Sections and other subdivisions of the body of this Agreement, and all
references to "EXHIBITS" and "SCHEDULES" are to the Exhibits and Schedules
attached to this Agreement,
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(d) pronouns of either gender or neuter shall include, as appropriate,
the other pronoun forms, and
(e) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
As used in this Agreement and the Exhibits and Schedules, the following
definitions shall apply:
"ACTION" means any action, complaint, charge, investigation, petition,
suit or other proceeding, whether civil or criminal, in law or in equity, or
before any arbitrator or federal, state or local administrative body.
"AGREEMENT" means this Agreement by and between Buyer, Seller, X.X.
Xxxxxxxx, the GFS Trust, Xxxxx Xxxxxxxx, and the AS Trust, as amended or
supplemented together with all Exhibits and Schedules.
"APPROVAL" means any approval, authorization or consent, or any waiver
of any of the foregoing, required to be obtained from, or any notice, statement
or other communication required to be filed with or delivered to, any person or
entity, the receipt of which is necessary to the continued operation of the
Business as it has been operated prior to the Closing Date.
"ACQUIRED STORES" means each of the retail stores operated by Seller,
which stores are listed on Schedule 1.1 hereto, excluding the Pointe Orlando
Store.
"ASSUMED CONTRACT" means the Leases and each contract specifically
identified on Schedule 4.5.
"ASSUMED LIABILITIES" means those liabilities and obligations of Seller
relating to the Business that are specifically identified in Subsection 2.2.1.
"BUSINESS" means Seller's retail sale of apparel and other merchandise
from the Acquired Stores in the State of Florida and the incidents of such
business, including income, cash flow, operations, condition (financial or
other), anticipated revenues and prospects.
"CERTIFICATE AND CREDIT OBLIGATIONS" has the meaning specified in
Section 4.15.
"CLOSING" shall mean the consummation of the purchase and sale
transaction described herein which shall occur on the Closing Date.
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"CLOSING DATE" has the meaning specified in Section 3.1.
"ENCUMBRANCE" means any claim, charge, covenant, easement, encumbrance,
security interest, lien, option, pledge, rights of others, or restriction
(whether on sale, transfer, disposition or otherwise), whether imposed by
agreement, understanding, law, equity or otherwise.
"EXCLUDED ASSETS" means those assets of Seller identified in Subsection
2.1.2.
"EXCLUDED LIABILITIES" has the meaning specified in Subsection 2.2.2.
"FINANCIAL STATEMENTS" has the meaning specified in Subsection 4.3.1.
"INDEMNIFIABLE CLAIM" means any Loss for or against which any party is
entitled to indemnification under this Agreement; "INDEMNIFIED PARTY" means the
party entitled to indemnity hereunder; and "INDEMNIFYING PARTY" means the party
obligated to provide indemnification hereunder.
"INTELLECTUAL PROPERTY" means all Marks, together with the goodwill and
the business appurtenant thereto and any rights, claims or choses in action
relating to or deriving from any of the foregoing used as of the date hereof or
prior to the date hereof in the Business.
"INVENTORY" means merchandise and other assets existing on the Closing
Date that are held or intended for sale.
"LEASES" means those certain lease agreements listed on Schedule 4.6
covering a real property leasehold interest used by Seller in connection with
its operation of the Business, together with all amendments, modifications,
alterations and other changes thereto.
"LOSS" means any action, cost, damage, disbursement, expense,
liability, loss, deficiency, diminution in value, obligation, penalty, fine,
assessment or settlement of any kind or nature, whether foreseeable or
unforeseeable, including but not limited to, interest or other carrying costs,
penalties, reasonable legal, accounting and other professional fees and expenses
incurred in the investigation, collection, prosecution and defense of claims,
inquiries, hearings or other legal or administrative proceedings, and amounts
paid in settlement, that may be imposed on or otherwise incurred or suffered by
the specified person.
"XXXX" means any brand name, copyright, patent, service xxxx,
trademark, tradename (including, but not limited to the
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trade names "Good Vibrations" and "Good Vibrations Surf Shops"), and all
registrations or applications for registration of any of the foregoing.
"NON-COMPETITION AGREEMENTS" shall mean the Non- Competition Agreements
in substantially the form of Exhibit E hereto to be entered into with Seller and
each of X.X. Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx and Xxxxxx
Xxxxxxxx-Xxxx.
"ORDER" means any decree, injunction, judgment, order, ruling,
assessment or writ.
"PERMIT" means any license, permit, franchise, certificate of
authority, or order, or any waiver of the foregoing, required to be issued by
any governmental entity in connection with, and necessary to the operation of,
the Business.
"POINTE ORLANDO STORE" means Seller's retail store located at Pointe
Orlando in Orlando, Florida.
"PREPAID EXPENSES" means all advance payments, security deposits and
rent deposits paid by Seller to third parties in connection with the Purchased
Assets that remain outstanding as credit balances in favor of Seller on the
Closing Date.
"PURCHASE PRICE" has the meaning set forth in Section 2.3.
"PURCHASED ASSETS" has the meaning set forth in Subsection 2.1.1.
"SELLING PARTIES" means Seller, X.X. Xxxxxxxx, Xxxxx Xxxxxxxx, the GFS
Trust and the AS Trust, collectively.
"TAX" means any foreign, federal, state, county or local income, use,
excise, franchise, real and personal property, ad valorem, documentary stamp,
intangible, sales, transfer, gross receipt, capital stock, production, business
and occupation, disability, employment, payroll, severance or withholding tax or
charge imposed by any governmental entity, any interest and penalties (civil or
criminal) related thereto or to the nonpayment thereof, and any Loss in
connection with the determination, settlement or litigation of any Tax
liability.
ARTICLE II
SALE OF ASSETS, ASSUMPTION OF CERTAIN LIABILITIES
AND RELATED TRANSACTIONS
2.1 PURCHASE AND SALE OF ASSETS.
2.1.1 PURCHASED ASSETS. Subject to the terms and conditions of this
Agreement, on the Closing Date, Seller
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shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall
purchase, acquire and accept from Seller, the following specified assets
used by Seller in connection with the Business (the "PURCHASED ASSETS"):
(a) Leasehold interests in real property covered by the
Leases, and all leasehold improvements located on such real property;
(b) All machinery, apparatus, back office equipment,
computer hardware and equipment (except as expressly excluded in Subsection
2.1.2), furniture and fixtures, supplies (including merchandise bags and
gift boxes) and other personal property of every type owned by Seller and
used in connection with the Business at the Acquired Stores;
(c) All Inventory located at the Acquired Stores;
(d) All of Seller's rights and interests arising under or in
connection with the Assumed Contracts;
(e) All Prepaid Expenses;
(f) All Intellectual Property;
(g) All books and records and all files, documents, papers
and agreements (including those contained in computerized media) pertaining
to the Purchased Assets or the Assumed Liabilities (excluding the minute
and stock record books of Seller);
(h) Customer and vendor records, mailing lists, sales
materials, advertising materials and related documentation;
(i) Cash in the amount of $250 in each of the 25 cash
registers located at the Acquired Stores;
(j) All of the rights and interests of X.X. Xxxxxxxx, Xxxxx
Xxxxxxxx, the GFS Trust and the AS Trust arising under or in connection
with the Purchased Assets; and
(k) All goodwill associated with the foregoing.
2.1.2 EXCLUDED ASSETS. The assets that constitute Excluded Assets
include but are not limited to the following items:
(a) The assets of Seller that are not used by it in
connection with its conduct or operation of the Business, including those
specifically identified by Seller on Schedule 2.1.2 attached hereto;
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(b) Seller's tax records and Permits; provided, however,
that copies of such tax records and Permits shall be provided to Buyer at
the Closing;
(c) Except as provided in Section 2.1.1(i), cash and cash
equivalents;
(d) Inventory, furniture, fixtures and equipment, including
computer hardware and software, located at Seller's corporate headquarters
or at the Pointe Orlando Store;
(e) All point-of-sale software, and the point-of-sale
hardware located at five of the Acquired Stores (to be identified by Seller
prior to the Closing);
(f) Any vehicles owned by Seller;
(g) Any real property owned by Seller (excluding the
Leases);
(h) The lease with respect to Seller's corporate
headquarters;
(i) All utility deposits; and
(j) The other assets identified on Schedule 2.1.2 attached
hereto.
2.2 ASSUMPTION OF CERTAIN LIABILITIES.
2.2.1 ASSUMED LIABILITIES. Subject to the provisions of Section
9.4, Buyer shall, on the Closing Date, assume only the following specified
obligations and liabilities (the "ASSUMED LIABILITIES"):
(a) the obligations of Seller under the Assumed Contracts to
the extent such obligations arise and are to be performed on and after the
Closing Date (but excluding any liability or obligation to a third party
arising from a breach of such Assumed Contract before the Closing and not
as a result of Buyer's failure to perform); and
(b) subject to Section 9.5, the Certificate and Credit
Obligations.
2.2.2 LIABILITIES NOT ASSUMED. Except for the liabilities and
obligations specifically assumed by Buyer pursuant to Subsection 2.2.1,
Buyer shall not assume, shall not take subject to and shall not be liable
for, any liabilities or obligations of any kind or nature, whether
absolute, contingent, accrued, known or unknown, of Seller or any affiliate
of Seller (the "EXCLUDED LIABILITIES").
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2.3 PURCHASE PRICE. The total purchase price (the "PURCHASE PRICE") for
the Purchased Assets to be paid to Seller by Buyer as provided in Section 2.5
shall be (i) $8,896,250 plus (ii) the amount payable for merchandise inventories
included in the Purchased Assets (the "EXTENDED COST INVENTORY AMOUNT"), as
calculated pursuant to Section 2.4, plus (iii) an amount equal to any rent paid
by Seller under the Leases, pro-rated from the Closing Date through the end of
the month of the Closing. In addition, Buyer shall pay an aggregate of $250,000
(the "NON-COMPETITION PAYMENTS") to Seller, X.X. Xxxxxxxx, Xxxxx Xxxxxxxx,
Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx-Xxxx as consideration for the
Non-Competition Agreements.
2.4 EXTENDED COST INVENTORY. The amount payable for merchandise
inventories shall be based on a physical inventory to be conducted (at the
expense of Buyer) by RGIS Inventory Specialists on the day immediately preceding
the Closing Date. The physical inventory will be taken for each item of
inventory at the then current retail price on the merchandise ticket extended to
a total retail inventory for each of the Acquired Stores. The Extended Cost
Inventory Amount shall be determined by multiplying the aggregate extended total
retail inventory for the Acquired Stores by .45.
2.5 PAYMENT OF PURCHASE PRICE. Buyer shall make the following payments
by wire transfer, or by check in the case of subsections (v) and (vi) below, in
accordance with Seller's instructions:
(i) At Closing, Buyer shall pay to Seller $8,896,250;
(ii) At Closing, Buyer shall pay to Seller the lesser of $700,000
or fifty percent (50%) of the cost (calculated as specified in Section 2.4)
of the merchandise inventory included in the Purchased Assets, as shown on
Seller's books and records (collectively, the "CLOSING PAYMENT");
(iii) At Closing, Buyer shall pay to Seller an amount equal to any
rent paid by Seller under the Leases for the month of the Closing,
pro-rated from the Closing Date through the end of the month;
(iv) At Closing, Buyer shall pay the Non-Competition Payments as
follows: $95,000 to Seller, $95,000 to X.X. Xxxxxxxx, $20,000 to Xxxxx
Xxxxxxxx, $20,000 to Xxxxxxx Xxxxxxxx and $20,000 to Xxxxxx Xxxxxxxx-Xxxx;
(v) No later than 30 days after the Closing, Buyer shall deliver to
Seller a check for an amount (the "INVENTORY PAYMENT") equal to the
difference between the Extended Cost Inventory Amount, and the amount paid
to
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Seller at Closing pursuant to Subsection 2.5(ii), less $200,000 (the
"WITHHOLD AMOUNT"), adjusted as provided in Section 9.5; and
(vi) On March 31, 1998, Buyer shall deliver to Seller a check for
the Withhold Amount, adjusted as provided in Section 9.5.
ARTICLE III
CLOSING
3.1 CLOSING DATE. Subject to the satisfaction or waiver by the
appropriate party of all the conditions precedent to closing specified in
Article VIII hereof, the Closing shall take place at the offices of Xxxxxx X.
LaBret, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, 12:00 p.m. local time on
September 4, 1997, or September 30, 1997 if all approvals required under the
Leases have not been received by September 4, 1997, or at such later date or at
such other location as the parties hereto may mutually designate in writing (the
"CLOSING DATE"). The Closing shall be effective as of 12:01 a.m. (Eastern time)
on the Closing Date, or at such later date or time as the parties hereto may
mutually designate in writing.
3.2 ITEMS TO BE DELIVERED AT THE CLOSING BY SELLER. At the Closing,
Seller shall deliver or cause to be delivered to Buyer:
(a) A Xxxx of Sale in the form of Exhibit A;
(b) An Assignment and Assumption Agreement in the form of
Exhibit B;
(c) Assignment of Trademark with respect to the Marks in a form
reasonably acceptable Seller and Buyer;
(d) With respect to each Acquired Store covered by the Leases, an
assignment of the Leases (in form reasonably satisfactory to Buyer),
related estoppel certificates from each lessor, together with any necessary
consents of the lessors and amendments to the Leases listed on Schedule 3.2
requested by Buyer;
(e) Consulting Agreement, by and between Buyer and Xxxxxx
Xxxxxxxx-Xxxx, in the form of Exhibit F;
(f) Such other instruments of transfer necessary or appropriate to
transfer to and vest in Buyer all of Seller's right, title and interest in
and to the Purchased Assets;
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(g) The opinion of counsel in the form of Exhibit C and the
certificates, consents and other documents referred to herein as then
deliverable by Seller;
(h) The Non-Competition Agreements in substantially the form of
Exhibit E duly executed by Seller, X.X. Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx
Xxxxxxxx and Xxxxxx Xxxxxxxx-Xxxx; and
(i) The keys/combinations to all locks located on or in the
Purchased Assets (and any and all cards, devices or things necessary to
access any of the Purchased Assets) shall be surrendered on request to
Buyer's representatives at the facilities where such assets are located.
Simultaneously with the deliveries referred to in this Section, Seller shall
take or cause to be taken all such actions as may reasonably be required to put
Buyer in actual possession and operating control of the Purchased Assets.
3.3 ITEMS TO BE DELIVERED AT THE CLOSING BY BUYER. At the Closing,
Buyer shall deliver or cause to be delivered to Seller (i) the Non-Competition
Payments, (ii) the Closing Payment, (iii) the Xxxx of Sale and Assignment and
Assumption Agreement in the forms of Exhibit A and Exhibit B, respectively, (iv)
the opinion of counsel in the form of Exhibit D, and (v) the certificates,
consents and other documents referred to herein as then deliverable to Seller.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER AND X.X. XXXXXXXX
Seller and X.X. Xxxxxxxx jointly and severally represent, warrant and
agree as of the date hereof and as of the Closing Date (except as otherwise
indicated) as follows:
4.1 ORGANIZATION AND RELATED MATTERS. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida. The sole shareholders of Seller are the GFS Trust, the AS Trust,
Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx-Xxxx. Schedule 4.1 sets forth the number of
shares of Common Stock of Seller owned by each of such shareholders. Seller has
all necessary corporate power and authority to execute, deliver and perform this
Agreement and any related agreements to which it is a party. Seller has all
necessary corporate power and authority to own its properties and assets and to
carry on the Business as now conducted. Seller is not required to be qualified
or licensed to do business as a foreign corporation in any jurisdiction.
4.2 AUTHORIZATION; NO CONFLICTS. The execution, delivery and
performance of this Agreement by Seller has been
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duly and validly authorized by the Board of Directors and shareholders of Seller
and by all other necessary corporate action on the part of Seller. This
Agreement and the other agreements contemplated hereby constitute the legally
valid and binding obligation of each of the Selling Parties who are a party to
such agreement, enforceable against each such party in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws and equitable
principles relating to or limiting creditors rights generally. Subject to
obtaining all Approvals, the execution, delivery and performance of this
Agreement by the Selling Parties, and the execution, delivery and performance of
any related agreements or contemplated transactions by the Selling Parties will
not (with the passage of time, notice or both) violate, or constitute a breach
or default under, the charter documents or bylaws of Seller, any written or oral
agreement between or among any current of former shareholders of Seller, any
Assumed Contract or any other contract of Seller or Selling Parties (including,
without limitation, any trust documents governing the GFS Trust or the AS
Trust), result in the imposition of any Encumbrance against any assets or
properties of Seller or any of the Purchased Assets or violate any law
applicable to any Selling Party or the Business. Schedule 4.2 lists all Permits
and Approvals required to be obtained by the Selling Parties to consummate the
transaction contemplated by this Agreement. Except for matters identified on
Schedule 4.2 as requiring that certain actions be taken by or with respect to a
third party or a governmental entity, the execution and delivery of this
Agreement by the Selling Parties and the performance of this Agreement and any
related or contemplated transaction by the Selling Parties will not require
filing or registration with, or the issuance of any Permit by, any other third
party or governmental entity under the terms of any applicable laws or contracts
to which any Selling Party is a party.
4.3 FINANCIAL STATEMENTS; CHANGES; CONTINGENCIES
4.3.1 FINANCIAL STATEMENTS. The unaudited financial statements
provided to Buyer and identified on Schedule 4.3 covering the twelve months
ended December 31, 1996, and the six months ended June 30, 1997 (the
"FINANCIAL STATEMENTS"), have been derived from the books and records of
Seller, which are maintained on a consistent basis from period to period,
have been prepared in accordance with GAAP applied on a consistent basis
and fairly present the financial condition and results of operations of the
Business as of and for the periods indicated. The Financial Statements
reflect all adjustments (which consist only of normal recurring adjustments
not material in amount and include but are not limited to estimated
provisions for year-end adjustments) necessary for a fair presentation of
the information contained therein, except as specified
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therein. Since June 30, 1997, there has been no change in any of the
significant accounting policies, practices or procedures of Seller with
respect to the Business.
4.3.2 NO MATERIAL ADVERSE CHANGES. Except as set forth on Schedule
4.3, since June 30, 1997, whether or not in the ordinary course of the
Business, there has not been, occurred or arisen:
(a) To the best of the Seller's and X.X. Xxxxxxxx'x
knowledge, any change in or event affecting the Business, the
Purchased Assets, the Assumed Contracts, or the Assumed Liabilities
that has had or may reasonably be expected to have a material
adverse effect on the Business or the Purchased Assets, the Assumed
Contracts or the Assumed Liabilities;
(b) Any sale, lease or other disposition of any of the
Purchased Assets, except in the ordinary course of business, for a
price in excess of $1,000;
(c) Any strike or other labor dispute; or
(d) Any casualty, loss, damage or destruction (whether or not
covered by insurance) of any of the Purchased Assets in excess
of $1,000.
4.3.3 NO OTHER LIABILITIES OR CONTINGENCIES. There are no material
liabilities of any nature, whether accrued, absolute, contingent or
otherwise, and whether due or to become due, probable of assertion or not,
relating to the Business, except liabilities that (i) are reflected or
disclosed in the Financial Statements, (ii) were incurred after June 30,
1997 in the ordinary course of the Business and which do not exceed
$100,000 in the aggregate or (iii) are set forth in the Schedules.
4.4 TAX AND OTHER RETURNS AND REPORTS. Seller has timely filed or will
file all required tax returns and has paid or will have paid all Taxes due with
respect to the Business and the Purchased Assets for all periods ending on or
before the Closing Date. There are no Encumbrances with respect to Taxes upon
any of the Purchased Assets or the Business, except Encumbrances for current
Taxes (including tangible personal property taxes) not yet due. All required tax
returns relating to the Business, including amendments to date, have been
prepared in good faith without negligence or willful misrepresentation and are
complete and accurate in all material respects. Seller is now and has been since
December 1980, a Subchapter S corporation.
4.5 ASSUMED CONTRACTS. Schedule 4.5 identifies each Assumed Contract
(other than the Leases, which are identified on Schedule 4.6) by date, parties
signatory thereto and subject
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matter. The Assumed Contracts include each contract upon which the Business is
substantially dependent and each contract which is otherwise material to the
Business or the Purchased Assets. Each Assumed Contract was entered into in the
ordinary course of the Business. True, correct and complete copies of the
Assumed Contracts, including all amendments and supplements, have been delivered
to Buyer. Each Assumed Contract is valid and subsisting and, upon assignment
pursuant to this Agreement and the receipt of any required consents thereto,
will be enforceable by Buyer, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws and
equitable principles relating to or limiting creditors' rights generally; there
is no litigation pending or, to Seller's or X.X.Xxxxxxxx'x knowledge, threatened
by any party with respect to any Assumed Contract; Seller has duly performed all
its material obligations thereunder to the extent that such obligations to
perform have accrued; and no breach or default, alleged breach or default, or
event which would (with the passage of time, notice or both) constitute a breach
or default thereunder by Seller (or, to the best knowledge of Seller and X.X.
Xxxxxxxx, any other party or obligor with respect thereto), has occurred or as a
result of this Agreement or its performance will occur (assuming receipt of all
required Approvals). Except as set forth on Schedule 4.5 and upon receipt of any
required consents under the Assumed Contracts, consummation of the transaction
contemplated by this Agreement will not (and will not give any person a right
to) terminate or modify any rights of, or accelerate or augment any obligation
of, Seller under any of the Assumed Contracts.
4.6 TITLE TO AND CONDITION OF PURCHASED ASSETS; LEASES.
(a) Schedule 4.6 identifies each Lease by date, parties signatory
thereto and property description or address. Except as set forth on Schedule 4.5
and Schedule 4.6, Seller has good and marketable title to each of the Purchased
Assets, free and clear of any Encumbrances. Seller has all right, power and
authority to sell, convey, assign, transfer and deliver the Purchased Assets to
Buyer in accordance with the terms of this Agreement. The equipment included in
the Purchased Assets is in good condition and repair.
(b) With respect to the Leases:
(1) The Leases are valid, binding and enforceable, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws and equitable principles relating to or limiting
creditors' rights generally;
(2) The real property described in the Leases is the only real
property used by Seller in the Business (except the real property used
in connection with Seller's
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corporate headquarters) and each of the Leases constitutes the entire
agreement to which Seller is a party with respect to the subject
property which is demised pursuant thereto;
(3) To the best knowledge of the Seller and X.X. Xxxxxxxx, all
conditions precedent to the enforceability of the Leases have been
satisfied and there exists no breach or default, nor state of facts
which, with the passage of time, notice, or both, would result in a
breach or default on the part of either Seller or the lessor
thereunder;
(4) To the best knowledge of Seller and X.X. Xxxxxxxx, all
space and improvements leased by Seller have been fully and
satisfactorily completed and furnished in accordance with the
provisions of the Leases;
(5) To the best knowledge of Seller and X.X. Xxxxxxxx, Seller
has received no written notice of non-compliance with any restriction
encumbering any leased property, nor has Seller received written notice
of any zoning violations affecting any leased property; and
(6) To the best knowledge of Seller and X.X. Xxxxxxxx, there is
no pending or threatened Action that would materially interfere with
the quiet enjoyment of any such leasehold by Seller or, after the
Closing, by Buyer.
4.7 LEGAL PROCEEDINGS. There is no Order or Action pending, or, to the
best knowledge of Seller or X.X. Xxxxxxxx, threatened, against or affecting
Seller or any aspect of the Business that individually or when aggregated with
one or more other Orders or Actions has, or if determined adversely might
reasonably be expected to have, a material adverse effect on the Business, the
Purchased Assets (or the use, operation or value thereof), the Assumed
Contracts, the Assumed Liabilities, Selling Parties' ability to perform this
Agreement, or any aspect of the transaction contemplated by this Agreement.
Schedule 4.7 lists each Order and each Action that involves a claim or potential
claim of aggregate liability in excess of $5,000 against, or that enjoins or
seeks to enjoin any activity by Seller relating to, the Business.
4.8 ACCOUNTING RECORDS; INTERNAL CONTROLS.
4.8.1 ACCOUNTING RECORDS. Seller has records that accurately and
validly reflect its material transactions relating to the Business, and
accounting controls sufficient to insure that such transactions are (i)
executed in accordance with management's general or specific authorization
and (ii) recorded in conformity with Seller's normal accounting policies
and procedures consistently applied so as to maintain accountability for
assets.
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4.8.2 DATA PROCESSING; ACCESS. The data processing equipment, data
transmission equipment, related peripheral equipment and software used by
Seller in the operation of the Business (including any disaster recovery
facility) to generate and retrieve such records are comparable in
performance, condition and capacity with those utilized by companies of
comparable size in similar lines of business.
4.9 INSURANCE. Seller is, and at all times during the past five years
has been, insured with reputable insurers against all risks involving the
Business normally insured against by companies in similar lines of business, and
all of the insurance policies and bonds maintained by Seller are in full force
and effect. Seller has received no notice or other indication from any insurer
or agent of any intent to cancel or not to renew any of such insurance policies.
There are no outstanding requirements or recommendations by any insurance
company that issued a policy with respect to the Business or the Purchased
Assets or by any fire department of similar organization requiring or
recommending any action which has not been taken.
4.10 COMPLIANCE; BUSINESS PRACTICES; PERMITS.
4.10.1 COMPLIANCE WITH LAWS AND REGULATIONS. Seller has conducted
the Business in accordance with applicable laws and regulations.
4.10.2 PERMITS. Seller holds all material Permits that are
required by any Governmental Entity to permit it to conduct the Business as
now conducted and operate the Purchased Assets as they are now operated,
and all such Permits are valid and in full force and effect and will remain
in full force and effect upon consummation of the transaction contemplated
by this Agreement, except for those Permits identified on Schedule 4.10
which are not transferable to Buyer. Except as set forth on Schedule 4.10,
all such Permits will be included with the Purchased Assets. To the best
knowledge of Seller and X.X. Xxxxxxxx, no suspension, cancellation or
termination of any of such Permits is threatened or imminent.
4.11 NO BROKERS OR FINDERS. No agent, broker, finder, or investment or
commercial banker, or other person or firm engaged by or acting on behalf of
Seller or any affiliate in connection with the negotiation, execution or
performance of this Agreement or the transaction contemplated by this Agreement,
is or will be entitled to any brokerage or finder's or similar fee or other
commission as a result of this Agreement or such transaction, other than X.X.
Xxxxxxxx & Associates, Inc., of Western Reserve Advisors Limited, all of whose
fee will be paid by Seller.
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4.12 INVENTORY. The Inventory consists of a quality and quantity which
are salable and merchantable in the ordinary course of business. The value at
which Inventories are carried reflects the customary inventory valuation policy
of Seller (which fairly reflects the value of obsolete, spoiled or excess
inventory) for stating inventory, in accordance with GAAP consistently applied.
4.13 EMPLOYEES. Seller has provided to Buyer a true and correct list of
the names of all employees of Seller principally employed in connection with the
Business and setting forth the salary rate of each such employee. Seller is not
a party to any union contract or collective bargaining agreement relating to any
aspect of the Business.
4.14 INTELLECTUAL PROPERTY. Schedule 4.14 lists all Intellectual
Property relating to the Business in which Seller has an interest and the nature
of such interest. Seller has complete rights to and ownership of all
Intellectual Property required for use in connection with the Business. The
Intellectual Property of Seller is fully assignable free and clear of any
Encumbrances. Neither Seller nor X.X. Xxxxxxxx has received any notice to the
effect (or is otherwise aware) that the Intellectual Property or any use by
Seller of any such property conflicts with or infringes (or allegedly conflicts
with or infringes) the rights of any Person.
4.15 GIFT CERTIFICATES AND STORE CREDITS. The aggregate value as of the
Closing Date of all outstanding gift certificates and store credits (the
"CERTIFICATE AND CREDIT OBLIGATIONS") that may be redeemed after the Closing
will not exceed $15,000.
4.16 SUFFICIENCY OF PURCHASED ASSETS. Except as set forth on Schedule
4.16, the Purchased Assets constitute all assets, whether tangible or
intangible, which are material to the operation of the Business as presently
conducted.
4.17 ACCURACY OF INFORMATION. To the best knowledge of Seller and X.X.
Xxxxxxxx, all information provided by the Selling Parties in connection with
this Agreement and the Schedules is true and complete in all material respects
and does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make any statement therein not misleading. Except as
disclosed to Buyer in the information identified in this Agreement and on the
Schedules, there is no fact or information known to Seller or X.X. Xxxxxxxx that
has or is likely to have a material adverse effect on the Business or the
Purchased Assets. If any of such information at any time subsequent to its
delivery and prior to the Closing becomes untrue or misleading in any material
respect, Seller will promptly notify Buyer in writing of such fact and of the
reasons for such change.
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Except as stated in Article IV hereof, neither Seller nor X.X. Xxxxxxxx
makes any other warranty or representation to Buyer.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents, warrants and agrees as of the date hereof and as of
the Closing Date (except as otherwise indicated) as follows:
5.1 ORGANIZATION AND RELATED MATTERS. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of California.
Buyer has all necessary corporate power and authority to carry on its business
as now being conducted. Buyer has the necessary corporate power and authority to
execute, deliver and perform this Agreement and the transaction contemplated
hereby.
5.2 AUTHORIZATION. The execution, delivery and performance of this
Agreement by Buyer has been duly and validly authorized by the Board of
Directors of Buyer and by all other necessary corporate action on the part of
Buyer. This Agreement constitutes the legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws and equitable principles relating to or
limiting creditors' rights generally.
5.3 NO CONFLICTS. The execution, delivery and performance of this
Agreement by Buyer will not (with the passage of time, notice or both) violate
the provisions of, or constitute a breach or default under (i) the charter
documents or bylaws of Buyer, (ii) any law to which Buyer is subject or (iii)
any contract to which Buyer is a party that is material to the financial
condition, results of operations or conduct of the business of Buyer.
5.4 NO BROKERS OR FINDERS. No agent, broker, finder or investment or
commercial banker, or other person or firms engaged by or acting on behalf of
Buyer or any affiliate in connection with the negotiation, execution or
performance of this Agreement or the transaction contemplated by this Agreement,
is or will be entitled to any broker's or finder's or similar fees or other
commissions as a result of this Agreement or such transaction.
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5.5 DUE DILIGENCE. Buyer has undertaken due diligence regarding the
Business, including the Purchased Assets and the Assumed Liabilities; provided,
however, that neither the conduct of such diligence nor the information obtained
by Buyer pursuant thereto shall in any way alter, qualify or limit the
representations and warranties made by Seller and X.X. Xxxxxxxx herein, nor
Buyer's right to rely thereon.
ARTICLE VI
COVENANTS WITH RESPECT TO
CONDUCT OF SELLER BEFORE CLOSING
6.1 ACCESS. Seller shall authorize and permit Buyer and its
representatives (which term shall be deemed to include its independent
accountants and counsel) to have reasonable access during normal business hours,
upon reasonable notice and in such manner as will not unreasonably interfere
with the conduct of the Business, to all of Seller's properties, books, records,
operating instructions and procedures, Tax returns and all other information
with respect to the Business as Buyer may from time to time reasonably request,
and to make copies of such books, records and other documents and to discuss the
Business with such other Persons, including, without limitation, Seller's
directors, officers, employees, accountants, counsel, suppliers, customers, and
creditors, as Buyer considers necessary or appropriate for the purposes of
familiarizing itself with the Business, obtaining any necessary Approvals of or
Permits for the transactions contemplated herein and conducting an evaluation of
the Business. Buyer shall obtain the approval of Seller before discussing the
Business with creditors and suppliers of Seller.
6.2 MATERIAL ADVERSE CHANGES; FINANCIAL STATEMENTS. Seller will
promptly notify Buyer of any event of which Seller obtains knowledge which has
had or might reasonably be expected to have a material adverse effect on the
Business or which if known as of the date hereof would have been required to be
disclosed to Buyer.
6.3 CONDUCT OF BUSINESS. Between the date of this Agreement and the
Closing Date, Seller covenants and agrees that it shall not without the prior
consent in writing of Buyer which may not be unreasonably withheld:
(a) conduct the Business in any manner except in the ordinary
course consistent with past practices; or
(b) except as required by their terms, amend, terminate, renew/fail
to renew or renegotiate any of the Leases or other Assumed Contracts or
default (or take or omit to take any action that, with or without the
giving of notice or passage of time, would constitute a default) in any of
its obligations under any Assumed Contract or take
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any action that would jeopardize the continuance of its material vendor
relationships; or
(c) terminate, amend or fail to renew any existing insurance
coverage; or
(d) terminate or fail to renew or preserve any Permits; or
(e) sell, transfer, mortgage, encumber, distribute (by way of
dividend) or otherwise dispose of any Purchased Assets, except (i) for
dispositions of property not material in amount, or (ii) in the ordinary
course of business provided, however, that no sale or assignment of any
Lease may, with respect to (i) or (ii) be made; or
(f) amend its charter documents or bylaws; or
(g) make special or extraordinary payments to any person or entity
other than to a shareholder-employee; or
(h) agree to or make any commitment to take any actions prohibited
by this Section 6.3.
6.4 PERMITS AND APPROVALS. Seller, X.X. Xxxxxxxx and Buyer each agree
to cooperate and use their best efforts to obtain, and will promptly prepare all
registrations, filings and applications, requests and notices preliminary to,
all Approvals and Permits that may be necessary or which may be reasonably
requested by Buyer to consummate the transactions contemplated herein. Seller,
X.X. Xxxxxxxx and Buyer shall use reasonable efforts to obtain such consents to
the assignment of the Assumed Contracts as may be required.
6.5 TICKETING OF MERCHANDISE. At Buyer's request, Seller shall ticket
all merchandise inventory included in the Purchased Assets with tickets provided
by Buyer and Buyer shall assist in and observe the ticketing. The ticketing
shall be completed on or prior to the day immediately preceding the physical
inventory.
6.6 XXXX-XXXXX. Seller agrees to xxxx-down its merchandise during the
period prior to the Closing Date consistent with its previous practices,
including but not limited to effecting all end-of-season xxxx-xxxxx on junior
swimwear.
6.7 LAYAWAY POLICY/FREQUENT BUYER PROGRAM. Seller shall discontinue its
practice of accepting layaway sales from and after the date of this Agreement,
and, further, Seller agrees to contact each customer who has a purchase on
layaway as of the date of this Agreement and request that such layaway purchase
be paid for in full on or before September 4, 1997. Seller shall
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discontinue its frequent buyer program and shall destroy all unused program
cards promptly after the date of this Agreement.
6.8 SCHEDULES. Seller shall deliver to Buyer the schedules to this
Agreement on or before August 11, 1997. Buyer shall have five (5) business days
from the delivery date to review the schedules. In the event the schedules are
not acceptable to Buyer, Buyer shall have the right in its sole discretion to
terminate this Agreement by written notice delivered to Seller.
ARTICLE VII
ADDITIONAL CONTINUING COVENANTS
7.1 EMPLOYMENT MATTERS.
7.1.1 SELECTED EMPLOYEES. Schedule 7.1 identifies the employees of
Seller to whom Buyer has offered employment (the "SELECTED EMPLOYEES") on
the basis of Buyer's standard new hire policies. Seller will not take any
action, directly or indirectly, to prevent or discourage any Selected
Employee from being employed by Buyer. Seller shall pay the accrued
vacation, holiday and sick pay of the Selected Employees to the Selected
Employees on the Closing Date. Buyer agrees to employ the store managers
and assistant store managers included on Schedule 7.1 for a period of six
months after the Closing; provided, however, that all such persons shall be
employees at will and Buyer shall have the right to terminate, decrease the
compensation of, or demote such persons "for cause" as determined by Buyer
in its sole discretion. Seller shall be responsible for all severance and
related obligations to employees of Seller arising on or prior to the
Closing or as a result of the transactions contemplated by this Agreement.
7.1.2 WARN. Seller represents and warrants that for purposes of the
Worker Adjustment and Retraining Notification Act ("WARN") and with respect
to employees performing services for the Business no single site of
employment of the Business has, or during the past 90 days has had, 50 or
more employees.
7.1.3 NO THIRD PARTY BENEFICIARIES. Notwithstanding any possible
inferences to the contrary, neither Seller nor Buyer intends for this
Section 7.1 to create any rights or obligations except as between Seller
and Buyer, and no past, present or future employees of Seller or Buyer
shall be treated as third party beneficiaries of this Section 7.1.
7.2 FURTHER ASSURANCES. Seller will execute and deliver all such other
and additional instruments, notices, releases, undertakings, consents and other
documents, and will do all such other acts and things, as may be reasonably
requested by
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Buyer as necessary to assure to Buyer all the rights and interests granted or
intended to be granted under this Agreement. Seller shall take or shall cause to
be taken such other reasonable actions as Buyer may require more effectively to
transfer, convey and assign to, and vest in, Buyer, and put Buyer in possession
of, the Purchased Assets as contemplated by this Agreement. In the event that
any Purchased Assets cannot be fully and effectively transferred to Buyer
without the consent of a third party or parties, Seller shall thereafter be
obligated to use its best efforts to assure Buyer the benefits of such contract,
commitment, other arrangement or other Purchased Asset.
7.3 EXPENSES AND TAXES. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense. Any sales, use or other transfer taxes
applicable to the conveyance and transfer from Seller to Buyer of the Purchased
Assets and any other transfer or documentary taxes or any filing or recording
fees applicable to such conveyance and transfer shall be paid by Seller.
7.4 ALLOCATION OF PURCHASE PRICE. The parties agree within 60 days
after the Closing to complete duplicate IRS Form 8594 (Asset Acquisition
Statement) as required by Section 1060 of the Internal Revenue Code in
accordance with the allocation of purchase price set forth on Schedule 7.4
attached hereto. The parties further agree to make no change or alteration of
the Form 8594 and to file no Supplemental Statement Form 8594 without at least
15 days' prior written notice to the other party of the nature and extent of the
changes, which notice shall include the revised or Supplemental Statement Form
8594.
7.5 NOTIFICATION TO VENDORS. Seller shall send a written notice to its
vendors within two (2) business days after the Closing Date, which notice shall
be approved by Buyer and shall state that: (i) Buyer has purchased the Business
and will operate under the name of "Good Vibrations;" (ii) Seller's new
corporate name is the name selected pursuant to Subsection 8.2.4; and (iii)
except for the six month period during which the Pointe Orlando Store will
operate under the name "Good Vibrations," Seller will do business as "The
Boardwalk Surf and Sport."
7.6 NON-SOLICITATION OF CUSTOMERS. After the Closing, neither Seller
nor any other Selling Party shall solicit customers of Seller or retain or
otherwise use any customer records or mailing lists of Seller.
7.7 PAYMENT OF COSTS ASSOCIATED WITH LEASE ASSIGNMENTS. Seller is
responsible for the payment of all fees, if any, required pursuant to the Leases
for the assignment thereof to Buyer and agrees to pay such fees directly to the
landlords under such Leases, or, if Buyer advances such fees, Seller will
reimburse Buyer for such fees promptly upon invoice
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therefor. Further, promptly after the Closing, Seller shall reimburse Buyer for
half of the legal fees incurred by Buyer in connection with procuring all
necessary landlord consents and estoppel certificates relating to the Leases;
provided, however, that such reimbursement obligation shall not exceed $3,750.
ARTICLE VIII
CONDITIONS OF PURCHASE;
TERMINATION OF OBLIGATIONS
8.1 GENERAL CONDITIONS. The obligations of the parties to effect the
Closing shall be subject to the following conditions:
8.1.1 NO ORDERS; LEGAL PROCEEDINGS. No law or order shall have been
enacted, entered, issued, promulgated or enforced by any governmental
entity, or have been threatened and remain so at what would otherwise be
the Closing Date, which prohibits or restricts or would (if successful)
prohibit or restrict the transactions contemplated herein.
8.1.2 APPROVALS. All Permits and Approvals required to be obtained
from any governmental entity shall have been received or obtained on or
prior to the Closing Date.
8.2 CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of Buyer to
effect the Closing are subject, at the option of Buyer, to the satisfaction or
written waiver of each of the following conditions:
8.2.1 REPRESENTATIONS AND WARRANTIES AND COVENANTS OF SELLER. The
representations and warranties of Seller herein contained shall be true in
all material respects at the Closing Date with the same effect as though
made at such time (except where such representation and warranty is made as
of a date specifically set forth therein); Seller shall have in all
material respects performed all obligations and complied with all covenants
and conditions required by this Agreement to be performed or complied with
by it at or prior to the Closing Date, and Seller shall have delivered to
Buyer certificates of Seller in form and substance satisfactory to Buyer,
dated the Closing Date and signed by its President and Chief Financial
Officer to such effect.
8.2.2 NO MATERIAL ADVERSE CHANGE. There shall not have been any
material adverse change in or affecting the Business subsequent to June 30,
1997.
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8.2.3 INVENTORY LEVELS. The amount of merchandise inventories as of
the Closing Date shall equal or exceed $1,300,000 at cost.
8.2.4 NAME CHANGE; AMENDMENT TO SELLER'S ARTICLES OF INCORPORATION.
Within two days after the Closing, Seller shall have changed its corporate
name (by filing an amendment to its Articles of Incorporation with the
Secretary of State of the State of Florida) to a name other than Good
Vibrations, which name shall be subject to Buyer's approval, which shall
not be unreasonably withheld.
8.2.5 RECEIPT OF CONSENTS; LANDLORD WAIVERS. All required consents
to the assignment of any Assumed Contract, Approval and Permit requiring
consent by its terms shall have been obtained, including without
limitation, the landlord approvals of the assignments of and amendments to
the Leases. Buyer shall have obtained all required landlord waivers of
radius clause violations in its own leases and in the Leases, if any, which
would be triggered by the consummation of Buyer's acquisition of the
Purchased Assets.
8.2.6 DUE DILIGENCE. Buyer shall have completed its due diligence
of the Business, including the Purchased Assets, Assumed Liabilities and
Excluded Liabilities on or before August 11, 1997 and the results of such
due diligence shall be satisfactory to Buyer.
8.2.7 CLOSING DELIVERIES. Buyer shall receive at the Closing all
items specified in Section 3.2.
8.3 CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of Seller to
effect the Closing are subject, at the option of Seller, to the satisfaction or
written waiver of each of the following conditions:
8.3.1 REPRESENTATIONS AND WARRANTIES AND COVENANTS OF BUYER. The
representations and warranties of Buyer herein contained shall be true in
all material respects at the Closing Date with the same effect as though
made at such time (except where such representation and warranty is made as
of a date specifically set forth therein); Buyer shall have in all material
respects performed all obligations and complied with all covenants and
conditions required by this Agreement to be performed or complied with by
it at or prior to the Closing Date, and Buyer shall have delivered to
Seller certificates of Buyer in form and substance satisfactory to Seller,
dated the Closing Date and signed by its Chief Executive Officer or Chief
Financial Officer, to such effect.
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8.3.2 CLOSING DELIVERIES. Seller shall receive at the Closing all
items specified in Section 3.3.
8.3.3 RECEIPT OF CONSENTS. All required consents to the assignment
of any Assumed Contract, Approval and Permit requiring consent by its terms
shall have been obtained.
8.4 TERMINATION OF AGREEMENT. This Agreement and the transactions
contemplated by this Agreement shall terminate if the Closing does not occur on
or before (i) the close of business on September 4, 1997, or (ii) if all
Approvals required under the Leases have not been received by September 4, 1997,
the close of business on September 30, 1997, unless extended by mutual consent
in writing of Buyer and Seller and otherwise may be terminated at any time
before the Closing as follows:
8.4.1 MUTUAL CONSENT. By mutual consent in writing of Buyer and
Seller.
8.4.2 CONDITIONS TO BUYER'S PERFORMANCE NOT MET. By Buyer by
written notice to Seller if any event occurs or condition exists which
would render impossible the satisfaction of one or more conditions to the
obligations of Buyer to consummate the transactions contemplated by this
Agreement as set forth in Section 8.1 or 8.2; provided, however, that
Buyer's termination based on the condition set forth in Section 8.2.6 shall
be delivered to Seller on or before August 12, 1997.
8.4.3 CONDITIONS TO SELLER'S PERFORMANCE NOT MET. By Seller by
written notice to Buyer if any event occurs or condition exists which would
render impossible the satisfaction of one or more conditions to the
obligation of Seller to consummate the transactions contemplated by this
Agreement as set forth in Section 8.1 or 8.3.
8.4.4 MATERIAL BREACH. By Buyer or Seller if there has been a
material misrepresentation or other material breach by the other party in
its representations, warranties and covenants set forth herein; provided,
however, that if such breach is susceptible to cure, the breaching party
shall have five business days after receipt of notice from the other party
of its intention to terminate this Agreement if such breach continues in
which to cure such breach.
8.4.5 SCHEDULES. By Buyer in accordance with Section 6.8 above.
8.5 EFFECT OF TERMINATION. Subject to the immediately following
sentence, if this Agreement shall be terminated pursuant to Section 8.4, all
further obligations of the parties under this Agreement shall terminate without
further liability of any party to another; provided that the obligations of the
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parties contained in Section 7.3 shall survive any such termination. A
termination under Section 8.4 shall not relieve any party of any liability for a
breach of, or for any misrepresentation under this Agreement, or be deemed to
constitute a waiver of any available remedy (including specific performance if
available) for any such breach or misrepresentation.
ARTICLE IX
INDEMNIFICATION
9.1 OBLIGATIONS OF THE SELLING PARTIES. The Selling Parties each
jointly and severally agree to indemnify and hold Buyer harmless from and
against any and all Losses of Buyer and its directors, officers, employees,
affiliates, agents and assigns, directly or indirectly, as a result of, or based
upon or arising from, (i) any inaccuracy in or breach or nonperformance of any
of the representations, warranties, covenants or agreements made by Seller or
X.X. Xxxxxxxx in or pursuant to this Agreement, (ii) any other matter as to
which Seller or X.X. Xxxxxxxx in other provisions of this Agreement has agreed
to indemnify Buyer, (iii) any Excluded Liability, including any liability or
obligation of Seller or X.X. Xxxxxxxx or any of their affiliates not expressly
assumed by Buyer pursuant to Subsection 2.2.1 hereof, or (iv) any third party
claims in respect of the Business or Purchased Assets or regarding the conduct
of the Business, arising prior to the Closing that are asserted prior to, on or
after the Closing.
9.2 OBLIGATIONS OF BUYER. Buyer agrees to indemnify and hold Seller and
X.X. Xxxxxxxx harmless from and against any Losses of Seller and X.X. Xxxxxxxx,
directly or indirectly, as a result of, or based upon or arising from, (i) any
inaccuracy in or breach or nonperformance of any of the representations,
warranties, covenants or agreements made by Buyer in or pursuant to this
Agreement, (ii) any of the Assumed Liabilities, or (iii) any third party claims
in respect of the Business or Purchased Assets or regarding the conduct of the
Business based upon facts or events occurring after the Closing.
9.3 PROCEDURE.
9.3.1 NOTICE OF LOSS. The Indemnified Party with respect to any
Loss shall give prompt notice thereof to the Indemnifying Party.
Notwithstanding the foregoing, (i) no Indemnified Party shall have any
obligation to give any notice of any asserted liability by a third party
unless such assertion is in writing, and (ii) the rights of any Indemnified
Party to be indemnified in respect of any Loss resulting from the asserted
liability shall not be adversely affected by the Indemnified Party's
failure to give or delay in giving notice unless (and then only to the
extent that) the Indemnifying Party is materially prejudiced thereby.
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9.3.2 DEFENSE. If any claim, demand or liability is asserted by any
third party against any Indemnified Party, the Indemnifying Party shall
upon the written request of the Indemnified Party, defend any action or
proceeding brought against the Indemnified Party in respect of matters
embraced by the indemnity, with counsel reasonably acceptable to the
Indemnified Party. If, after a request to defend any action or proceeding,
the Indemnifying Party neglects or refuses to defend the Indemnified Party,
a recovery against the latter suffered by it in good faith is conclusive in
its favor against the Indemnifying Party. The parties shall cooperate in
the defense of all third party claims which may give rise to Indemnifiable
Claims hereunder. In connection with the defense of any claim, each party
shall make available to the party controlling such defense, any books,
records or other documents within its control that are reasonably requested
in the course of, or are necessary or appropriate for such defense.
9.4 NOT EXCLUSIVE REMEDY. This Article IX shall not be deemed to
preclude or otherwise limit in any way the exercise by Buyer, Seller or X.X.
Xxxxxxxx of their respective other rights or pursuit of other remedies specified
in this Agreement.
9.5 OFFSET. If any matter as to which Buyer may be able to assert a
claim under Article IX is pending or unresolved at the time the Inventory
Payment or the Withhold Amount is due from Buyer to Seller under this Agreement,
Buyer shall have the right, in addition to other rights and remedies (whether
under this Agreement or applicable law), to withhold from the Inventory Payment
or the Withhold Amount an amount equal to the amount of the claim until such
matters are resolved. If it is finally determined that such claims are covered
by this Agreement, the amount of such claims may be offset against the retained
portion of the Inventory Payment or the Withhold Amount, and the remainder, if
any, shall be delivered to Seller pursuant to this Agreement. The parties
expressly acknowledge and agree that Buyer shall be entitled to offset against
the Withhold Amount the amount by which the aggregate amount of Certificate and
Credit Obligations redeemed after the Closing exceeds $15,000.
9.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in or made pursuant to this Agreement will expire one year
after the Closing except that (i) the representations and warranties contained
in Section 4.4 (Tax and other Returns and Reports) will continue through the
expiration of the applicable statute of limitations (or, if a claim has been
asserted prior to such expiration, until six months after the date of its final
resolution), and (ii) if a claim or notice is given under Article IX
(Indemnification) with respect to any representation or warranty prior to the
applicable expiration date, such representation or warranty will continue
indefinitely until the applicable claim is finally resolved.
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ARTICLE X
GENERAL
10.1 AMENDMENTS; WAIVERS. This Agreement and any Schedule or Exhibit
may be amended only by agreement in writing of both parties. No waiver of any
provision nor consent to any exception to the terms of this Agreement shall be
effective unless in writing and signed by the party to be bound and then only to
the specific purpose, extent and instance so provided.
10.2 ENTIRE AGREEMENT. This Agreement (together with its Schedules and
Exhibits) constitutes and contains the entire agreement and final understanding
between the parties concerning the purchase and sale of the Business and all
other subject matters addressed herein or pertaining thereto. This Agreement is
intended by the parties as a final expression of their agreement with respect to
such terms as are included herein and, further, is intended by the parties as a
complete and exclusive statement of the terms of their agreement. This Agreement
supersedes and replaces all prior negotiations and all prior or contemporaneous
representations, promises or agreements, proposed or otherwise, whether written
or oral, concerning the purchase and sale of the Business and all other subject
matters addressed herein or pertaining thereto, including, without limitation,
the letter of intent, dated July 1, 1997, by and between Seller and Buyer. Any
representation, promise or agreement not specifically included in this Agreement
shall not be binding upon or enforceable against either party. This is a fully
integrated agreement.
10.3 GOVERNING LAW; VENUE. This Agreement and the legal relations
between the parties shall be governed by and construed in accordance with the
laws of the State of Florida applicable to contracts made and performed in such
State and without regard to conflicts of law doctrines. Any action to enforce
the rights and obligations hereunder shall be taken in a court of competent
jurisdiction in Orange County, Florida and neither party shall object on the
grounds that such forum is inconvenient or lacks proper jurisdiction.
10.4 HEADINGS. The descriptive headings of the Articles, Sections and
Subsections of this Agreement are for convenience only and do not constitute a
part of this Agreement.
10.5 COUNTERPARTS. This Agreement and any amendment hereto or any other
agreement (or document) delivered pursuant hereto may be executed in one or more
counterparts and by different parties in separate counterparts. All of such
counterparts shall constitute one and the same agreement (or other document) and
shall become effective (unless otherwise therein provided) when one or more
counterparts have been signed by each party and delivered to the other party.
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10.6 PUBLICITY AND REPORTS. Seller and Buyer will coordinate all
publicity relating to the transaction contemplated by this Agreement, and
neither party will issue any press release, publicity statement or other public
notice relating to this Agreement, or the transaction contemplated by this
Agreement, without consulting with the other party except to the extent that
independent legal counsel to Seller or Buyer, as the case may be, determines
that a particular action may be required by applicable law, in which event the
party taking the particular action will give reasonable notice to the other
party and will consult with such other party regarding such action.
10.7 PARTIES IN INTEREST. This Agreement will be binding upon and inure
to the benefit of each party, and nothing in this Agreement, express or implied,
is intended to confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement. Nothing in this Agreement is
intended to relieve or discharge the obligation of any third person to either
party to this Agreement.
10.8 NOTICES. Any notice or other communication hereunder must be given
in writing and either (i) delivered in person, or (ii) delivered by a reputable
courier service, or (ii) transmitted by facsimile, provided that any notice so
given is also mailed as provided in clause (iv), or (iv) mailed, postage
prepaid, as follows:
IF TO BUYER, ADDRESSED TO:
Pacific Sunwear of California, Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Fax No: (000) 000-0000
IF TO SELLER, ADDRESSED TO:
Good Vibrations, Inc.
0000 Xxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Fax No: (000) 000-0000
WITH A COPY TO:
Xxxxxx X. LaBret, Esq.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax No: (000) 000-0000
or to such other address or to such other person as either party shall have last
designated by such notice to the other party.
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Each such notice or other communication shall be effective (A) if given by
facsimile, when transmitted to the applicable number so specified in (or
pursuant to) this Section 10.8 provided that appropriate confirmation of receipt
is generated by the facsimile and a duplicate copy is mailed, postage prepaid,
(B) if given by mail, three days after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid or (C) if given
by any other means, when actually delivered at such address.
10.9 EXPENSES. Buyer and Seller shall each pay its own expenses
incident to the negotiation, preparation and performance of this Agreement and
the transaction contemplated hereby, including but not limited to the fees,
expenses and disbursements of its accountants and counsel and of securing third
party consents and approvals required to be obtained by it. Seller and Buyer
shall each pay its own income, franchise or revenue tax or excise tax (and any
surtax thereon) due in connection with the consummation of the transaction
contemplated by this Agreement.
10.10 REMEDIES; WAIVER. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available under applicable law. No failure on the part of either party
to exercise or delay in exercising any right hereunder shall be deemed a waiver
thereof, nor shall any single or partial exercise preclude any further or other
exercise of such or any other right.
10.11 ATTORNEY'S FEES. In the event of any Action for breach of this
Agreement or misrepresentation by either party, the prevailing party shall be
entitled to reasonable attorney's fees, costs and expenses incurred in such
Action. Attorney's fees incurred in enforcing any judgment in respect of this
Agreement are recoverable as a separate item. The preceding sentence is intended
to be severable from the other provisions of this Agreement and to survive any
judgment and, to the maximum extent permitted by law, shall not be deemed merged
into any such judgment.
10.12 SEVERABILITY. If any provision of this Agreement is determined to
be invalid, illegal or unenforceable by any court or governmental entity, the
remaining provisions of this Agreement to the extent permitted by law shall
remain in full force and effect provided that the economic and legal substance
of the transaction contemplated is not affected in any manner materially adverse
to either party. In the event of any such determination, the parties agree to
negotiate in good faith to modify this Agreement to fulfill as closely as
possible the original intents and purposes hereof. To the extent permitted by
law, the parties hereby to the same extent waive any provision of law that
renders any provision hereof prohibited or unenforceable in any respect.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by a duly authorized officer as of the day and year
first above written.
"BUYER"
Pacific Sunwear of California, Inc.,
Attest: a California corporation
/s/ XXXX XXXXXX By: /s/ XXXX X. XXXXXX
------------------------------------ --------------------------------
Xxxx Xxxxxx Name: Xxxx X. Xxxxxx
CFO & Secretary Title: President/CEO
"SELLER"
Good Vibrations, Inc.,
a Florida corporation
Attest: By: /s/ X. X. XXXXXXXX
--------------------------------
[Sig] Name: X. X. Xxxxxxxx
------------------------------------- ------------------------------
Xxxx X. Xxxxxx Title: President
------------------------------------- -----------------------------
"X.X. XXXXXXXX"
Attest:
[Sig] /s/ X.X. XXXXXXXX
------------------------------------- ------------------------------------
Xxxx X. Xxxxxx X.X. Xxxxxxxx
-------------------------------------
"GFS TRUST"
Attest:
[Sig] /s/ X.X. XXXXXXXX, Trustee
------------------------------------- ------------------------------------
Xxxx X. Xxxxxx X.X. Xxxxxxxx, as Trustee of the
------------------------------------- X.X. Xxxxxxxx Living Revocable Trust
SOLELY FOR PURPOSES OF ARTICLE IX:
"XXXXX XXXXXXXX"
Attest:
[Sig] /s/ XXXXX XXXXXXXX
------------------------------------- ------------------------------------
Xxxx X. Xxxxxx Xxxxx Xxxxxxxx
-------------------------------------
SOLELY FOR PURPOSES OF ARTICLE IX:
"AS TRUST"
Attest:
[Sig] /s/ XXXXX XXXXXXXX, Trustee
-------------------------------------- ------------------------------------
Xxxx X. Xxxxxx A.S. Schiedel, as Trustee of the
-------------------------------------- Xxxxx Xxxxxxxx Living Revocable Trust
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