ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of September 18, 1995
(the "Agreement"), by and among KENSINGTON LAMP COMPANY, a
Pennsylvania corporation ("Seller"), ACTION INDUSTRIES, INC., a
Pennsylvania corporation ( Action"), KENSINGTON COLLECTION, INC.,
a Pennsylvania corporation ("Purchaser"), Xxxxxx Xxxxxxxx (the
Manager"), Xxxxxx Xxxxxx ( RT"), and Xxxxxx XxXxxxxx ( TM").
This Agreement sets forth the terms and conditions upon which
Seller will sell to Purchaser, and Purchaser will purchase from
Seller, certain of the properties and assets and certain of the
rights, claims and contracts of Seller's business (the "Business"),
and Purchaser will assume certain liabilities of the Business, all
upon the terms and subject to the conditions set forth in this
Agreement.
In consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained
herein, intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I -- TRANSFER OF ASSETS AND LIABILITIES
1.01 Purchase of Assets.
(a) Upon the terms and subject to the conditions of this
Agreement, at the Closing (as defined in Section 1.04 hereof),
Seller shall sell, transfer, convey, assign and deliver to
Purchaser, and Purchaser shall purchase, acquire and accept from
Seller, all of Seller's right, title and interest in and to those
tangible personal properties and assets located at Seller s
Youngwood, Pennsylvania facility and at such other locations as are
described herein or in the Schedules and Annexes hereto, together
with the following rights, claims and contracts of Seller
(together, the "Purchased Assets"), all as used in the Business
(except to the extent excluded under Section 1.01(b) hereof),
including but not limited to:
(1) subject to any required consents, all of Seller's
right, title and interest as lessee in, to and under that certain
real property lease dated February 8, 1994, as amended on May 1,
1994, between Seller and Xxxxxxxxx Industries (the "Real Property
Lease"), with respect to certain real property and improvements
thereon located in Youngwood, Pennsylvania (the "Leased Real
Property");
(2) those patents, applications for patents, patent
disclosures docketed, inventions, improvements, proprietary
processes and formulae, trademarks, trademark applications, trade
names and copyrights owned by Seller, and all proprietary,
technical and other information and intellectual property and all
licenses, franchises, permits, authorizations, agreements and
arrangements and other rights to use the foregoing, whether
patentable or unpatentable, of Seller, all as set forth on Schedule
1.01(a)(2) attached hereto (the "Intellectual Property");
(3) the machinery, equipment, vehicles, furniture, molds
and tools owned by Seller, including all attachments and parts
thereof (the "Equipment"), including the items described on
Schedule 1.01(a)(3);
(4) all permits, authorizations and licenses of Seller
required or necessary for the lawful operation of the Business (the
"Permits"), including those Permits described on Schedule
1.01(a)(4), to the extent transferable to Purchaser;
(5) subject to any required consents, all contracts,
agreements, purchase and sale orders, bids, proposals and other
commitments or obligations which were entered into or incurred in
the ordinary conduct of the Business, including those described on
Schedule 1.01(a)(5) attached hereto (the "Contracts");
(6) the supplies, spare parts, hardware, accessories and
other tangible personal property (the "Personal Property"),
including that Personal Property described on Schedule 1.01(a)(6)
attached hereto, but not including the Equipment;
(7) except as specifically provided in Section 1.01(b)
hereof, all production data, equipment maintenance data, copies of
accounting records related to the Trade Accounts and Vacation
Liabilities (as such terms are defined below); sales and sales
promotional data; advertising materials; sales and credit records;
customer lists; cost and pricing information; supplier lists;
business plans; reference catalogs; blueprints; drawings; lamp part
mold drawings; lamp drawings; lamp catalog sheets, photos,
brochures, folders and catalogs; lamp catalog sheet artwork and
film (located in Cheswick, PA, Youngwood, PA and Hong Kong); lamp
package artwork and film (located in Cheswick, PA, Youngwood, PA,
and Hong Kong); maps and geological reports (together, the
"Records");
(8) all rights under express or implied warranties from
suppliers of the Business (the "Warranties") except to the extent
related to Nonassumed Liabilities and Nonpurchased Assets (as
defined below);
(9) (i) all inventory (consisting of raw materials, work
in process and finished goods) as of the taking of such inventory
as described in Section 1.03(a)(2) hereof (the Inventory"); (ii)
those packaging labels stored at the Carnegie, Pennsylvania
packaging plant used by Seller (the Labels"); (iii) all inventory
which is received by Purchaser after the Closing Date and has been
paid for in full by Seller or Action prior to the Closing Date
pursuant to any letter of credit outstanding as of the Closing Date
(the Letter of Credit Inventory A"); (iv) all inventory which is
received by Purchaser after the Closing Date and is paid in full by
Seller or Action on or after the Closing Date pursuant to a Letter
of Credit outstanding as of the Closing Date (the "Letter of Credit
Inventory B"; and, together with the Letter of Credit Inventory A,
the "Letter of Credit Inventory"); and (v) all supplies of Seller
(the Supplies"), including that Inventory and those Supplies and
Labels reflected on the Current Balance Sheet; and
(10) all deposits and other prepaid items (the
"Deposits") including those described on Schedule 1.01(a)(10).
(b) Notwithstanding anything to the contrary herein, and
subject to the provisions of Section 4.02 hereof, Seller shall
retain and Purchaser shall not hereby acquire the following assets
(the "Nonpurchased Assets"):
(1) all cash, bank accounts, equity or debt securities,
recoverable local, state or federal income, sales and/or real
estate taxes, bonds, intercompany accounts, deposits (other than
the Deposits), judgments or any other interests in pending
litigation to which Seller is a party;
(2) any accounts/notes receivable or unbilled contract
receivables of Seller, including those reflected on the Current
Balance Sheet (other than those accounts receivable described in
Section 1.01(a)(9) hereof;
(3) Seller's financial records, which shall include,
without limitation, the general ledgers, books of original entry,
excluding those that are necessary for the ongoing conduct of the
Business as set forth in Section 1.01(a)(7) hereof;
(4) those goods which have been sold by Action and
returned by Action s customers and/or distributors, which are
located at Seller s Youngwood facility;
(5) the corporate minute books and stock ledgers of
Seller; and
(6) any insurance policies related to the Purchased
Assets or the Business.
1.02 Assumption of Liabilities.
At the Closing, Purchaser shall assume only:
(a) the trade accounts payable of Seller for Inventory which
has been shipped to and received by Seller on or before the Closing
Date (the Trade Accounts");
(b) the obligation to reimburse Seller or Action for the
amounts paid by it to suppliers for the Letter of Credit Inventory
B, which amounts shall be paid in cash by Purchaser within fourteen
(14) days after Seller s notice thereof, which notice shall include
supporting documentation for such shipment and Seller s or Action's
payment therefor.
(c) all liabilities of Seller for accrued but unused vacation
and personal days of Seller s direct employees (the "Vacation
Liabilities");
(d) all liabilities under the Real Property Lease which arise
from and after the Closing Date; and
(e) all liabilities in connection with the Purchased Assets,
or invoices for inventory which is ordered by Seller prior to the
Closing Date but which invoices and inventory related thereto are
received by Purchaser after the Closing Date (other than invoices
received in connection with the Letter of Credit Inventory), which
arise from and after the Closing;
(together, the Assumed Liabilities"). Purchaser shall not assume,
and shall in no way be responsible for, any liabilities other than
the Assumed Liabilities.
1.03 Consideration.
(a) Upon the terms and subject to the conditions of this
Agreement, Purchaser will deliver or cause to be delivered to
Seller, in full payment for the aforesaid sale, conveyance,
assignment, transfer and delivery of the Purchased Assets, the
purchase price to be determined as follows (the "Purchase Price"):
(1) $174,072; plus
(2) $2,103,146.23, being the value of the Inventory and
Labels purchased by Purchaser hereunder on the Closing Date (as
defined in Section 1.04 below), valued at cost, as established by
an inventory conducted by the parties hereto immediately prior to
the Closing, which shall be satisfactory to such parties (for
purposes of conducting such inventory, the value of stored packing
materials included in shipments to Seller and the value of samples
received by Seller from suppliers and manufacturers shall not be
counted (unless and to the extent Seller has paid for such
materials and/or samples), but such materials and samples shall be
included in the Inventory sold hereunder); plus
(3) $77,791.49, being the amount paid by Seller or
Action for the Letter of Credit Inventory A; minus
(4) the value of the Trade Accounts in the amount of
$738,625.91, and Vacation Liabilities in the amount of $10,624.91,
as of the Closing Date, as determined by the parties hereto (as the
same shall be subsequently subject to adjustment as set forth in
Section 1.07 hereof).
(b) At the Closing, Purchaser shall pay Seller the Purchase
Price by delivery of a Promissory Note to Seller, in the principal
amount of the Purchase Price, and in substantially the form
attached hereto as Exhibit A (the Note").
1.04 The Closing.
The closing of the transactions contemplated by this Agreement
(the Closing") will be deemed to be effective at 12:01 a.m. on
September 18, 1995, and shall take place at the offices of Xxxxx &
Xxxxxxx, P.C. The time and date on which the Closing is deemed to
be effective is herein referred to as the Closing Date."
1.05 Deliveries by Seller.
At the Closing, Seller will deliver or cause to be delivered
to Purchaser the following:
(a) a duly executed xxxx of sale with respect to the
Equipment, the Inventory, the Labels, the Letter of Credit
Inventory, the Supplies, the Personal Property and the Records;
(b) instruments of assignment with respect to the Real
Property Lease, the Permits, the Contracts, the Intellectual
Property, the Deposits and the Warranties;
(c) all such other endorsements, assignments and other
instruments as, in the reasonable opinion of Purchaser's counsel,
are necessary to vest in Purchaser title to the Purchased Assets to
be transferred to it pursuant to this Agreement, subject to the
Encumbrances described in Section 2.05, if any;
(d) a Non-Competition Agreement between Purchaser and both
Seller and Action, substantially in the form attached hereto as
Annex I (the "Action Non-Competition Agreement"), with regard to
the business currently being conducted by Seller;
(e) an Officer s Certificate certifying that the Articles of
Incorporation and all amendments thereto, Seller s Bylaws, and the
minutes of Seller s Board of Directors attached thereto are the
complete, true and correct articles, bylaws and minutes of Seller
as of the Closing Date;
(f) an Incumbency Certificate executed by the Secretary of
Seller certifying the incumbency of the officers executing all
closing documents on behalf of Seller; and
(g) an opinion of counsel to Seller substantially in the form
attached as Annex II hereto, with regard to the due incorporation
and good standing of Seller and due authority of Seller to complete
the transactions and execute all documents to be executed thereby,
all as contemplated herein.
1.06 Deliveries by Purchaser and the Manager.
At the Closing, Purchaser will deliver or cause to be
delivered to Seller the following;
(a) the Note and a Security Agreement in connection
therewith, substantially in the form attached hereto as Annex III
and Annex IV, respectively, duly executed by Purchaser;
(b) a duly executed Assumption Agreement and such other good
and sufficient instruments of assumption as shall be reasonably
necessary to vest in Purchaser as of the Closing Date the Assumed
Liabilities;
(c) a Non-Competition Agreement among Seller and Action and
both Purchaser and Manager, substantially in the form attached
hereto as Annex V (the "Purchaser Non-Competition Agreement"), with
regard to the promotional housewares business currently being
conducted by Action;
(d) an Officer s Certificate certifying that the Articles of
Incorporation and all amendments thereto, Purchaser s Bylaws, and
the minutes of Purchaser s Board of Directors attached thereto are
the complete, true and correct articles, bylaws and minutes of
Purchaser as of the Closing Date;
(e) an Incumbency Certificate executed by the Secretary of
Purchaser certifying the incumbency of the officers executing all
closing documents on behalf of Purchaser; and
(f) an opinion of counsel to Purchaser substantially in the
form attached as Annex VI hereto, with regard to the due
incorporation and good standing of Purchaser and due authority of
Purchaser to complete the transactions and execute all documents to
be executed thereby, all as contemplated herein.
1.07 Purchase Price Adjustment.
(a) Within 30 days following the Closing Date, Seller shall
conduct a review of the value of the Trade Accounts and Vacation
Liabilities as of the Closing Date (the Adjusted Assumed
Liabilities") at its own cost and expense and prepare and deliver
to Purchaser a statement thereof (the Assumed Liabilities
Statement"). Unless Purchaser, within 30 days after delivery to
Purchaser of the Assumed Liabilities Statement, notifies Seller in
writing that it objects to the Assumed Liabilities Statement or the
calculation of the Adjusted Assumed Liabilities, and specifies the
basis for such objection, such Assumed Liabilities Statement and
calculation of the Adjusted Assumed Liabilities shall become final
and binding upon the parties for purposes of this Agreement. If
Purchaser and Seller are unable to resolve such objections within
thirty (30) days after any such notification has been given, the
dispute shall be submitted to a public accounting firm mutually
agreed upon by Purchaser and Seller and paid for by Purchaser.
Such accounting firm shall make a final and binding determination
as to the matter or matters in dispute. Purchaser and Seller agree
to cooperate with each other and with each other's authorized
representatives in order to resolve any and all matters in dispute
as soon as practicable.
(b) The difference, if any, between the value of the Trade
Accounts and Vacation Liabilities determined by the parties at the
Closing (the Unadjusted Assumed Liabilities") and the Adjusted
Assumed Liabilities shall be an adjustment to the Purchase Price.
If the Adjusted Assumed Liabilities are greater than the Unadjusted
Assumed Liabilities, such difference shall be paid immediately by
Seller to Purchaser by applying the same as a prepayment under the
Note. If the Adjusted Assumed Liabilities are less than the
Unadjusted Assumed Liabilities, such difference shall be added to
the outstanding principal balance of the Note.
(c) Within 30 days following the Closing Date, Seller shall
conduct an inventory of the value of the Labels as of the Closing
Date (the Adjusted Labels Valuation") at its own cost and expense
and prepare and deliver to Purchaser a statement thereof (the
Adjusted Labels Valuation Statement"). Unless Purchaser, within
30 days after delivery to Purchaser of the Adjusted Labels
Valuation Statement, notifies Seller in writing that it objects to
the Adjusted Labels Valuation Statement or the calculation of the
Adjusted Labels Valuation, and specifies the basis for such
objection, such Adjusted Labels Valuation Statement and calculation
of the Adjusted Labels Valuation shall become final and binding
upon the parties for purposes of this Agreement. If Purchaser and
Seller are unable to resolve such objections within thirty (30)
days after any such notification has been given, the dispute shall
be submitted to arbitration in Pittsburgh, Pennsylvania. Such
arbitrator(s) shall make a final and binding determination as to
the matter or matters in dispute. Purchaser and Seller agree to
cooperate with each other and with each other's authorized
representatives in order to resolve any and all matters in dispute
as soon as practicable.
(d) The difference, if any, between the value of the Labels
determined by the parties at the Closing (the Unadjusted Labels
Valuation") and the Adjusted Labels Valuation shall be an
adjustment to the Purchase Price. If the Adjusted Labels Valuation
is less than the Unadjusted Labels Valuation, such difference shall
be paid immediately by Seller to Purchaser by applying the same as
a prepayment under the Note. If the Adjusted Labels Valuation is
greater than the Unadjusted Labels Valuation, such difference shall
be added to the outstanding principal balance of the Note.
1.08 Allocation of Purchase Price.
Purchaser and Seller shall mutually determine an allocation of
the Purchase Price among the Purchased Assets, using the allocation
method required by Section 1060 of the Internal Revenue Code of
1986, as amended (the "Code") and the regulations thereunder.
Seller and Purchaser each agree to report the federal, state and
local income and other tax consequences of the transactions
contemplated herein, and in particular to report the information
required by Code Section 1060(b), in a manner consistent with such
allocation and will not take any position inconsistent therewith
upon examination of any tax return, in any refund claim, in any
litigation, investigation or otherwise.
1.09 Disclaimer of Certain Warranties.
PURCHASER HEREBY AGREES THAT THE PURCHASED ASSETS SHALL BE SO
CONVEYED AS IS, WHERE IS," WITHOUT ANY REPRESENTATIONS OR
WARRANTIES WITH RESPECT THERETO OTHER THAN THE REPRESENTATIONS AND
WARRANTIES SPECIFICALLY SET FORTH HEREIN. SELLER HEREBY DISCLAIMS
ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE II -- REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
2.01 Corporate Organization.
Seller is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of
Pennsylvania. Seller has full corporate power and authority to
carry on the Business as now being conducted.
2.02 Articles and By-Laws.
The copies of the Articles of Incorporation and By-Laws of
Seller which have heretofore been furnished by Seller to Purchaser
are true and correct and complete copies thereof and include all
amendments to the date hereof.
2.03 Authorization.
Seller has full corporate power and authority to execute and
deliver this Agreement and, to the extent it is a party thereto,
the documents to be delivered at the Closing pursuant to Section
1.05 hereof (collectively, the "Seller Agreements") and to
consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and the Seller Agreements
by Seller and the consummation by Seller of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action of Seller and no other corporate action
or proceeding on the part of Seller is necessary to authorize the
execution and delivery by Seller of this Agreement or the Seller
Agreements or the consummation by Seller of the transactions
contemplated hereby or thereby. This Agreement has been, and the
Seller Agreements on the Closing Date will be, duly executed and
delivered by Seller and this Agreement is, and on the Closing Date
each of the Seller Agreements will be, legal, valid and binding
obligations of Seller, enforceable against it in accordance with
their terms, subject to applicable laws affecting creditors' rights
generally and subject, as to enforceability, to general principles
of equity, regardless of whether applied in a proceeding at law or
in equity.
2.04 No Violations; No Consents or Approvals Required.
Except as set forth in Schedule 2.04, neither the execution
and delivery of this Agreement or the Seller Agreements nor the
consummation of the transactions contemplated hereby or thereby
will:
(a) conflict with or violate any provision of the Articles of
Incorporation or By-Laws of Seller;
(b) conflict with or violate any law, rule, regulation,
ordinance, order, writ, injunction, judgment or decree applicable
to the Business or by which any of the Purchased Assets are bound
or affected; or
(c) conflict with or result in any breach of or constitute a
default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination or cancellation of, or accelerate the performance
required by or maturity of, or result in the creation of any
security interest, lien, charge of encumbrance on any of the
Purchased Assets pursuant to any of the terms, conditions or
provisions of, any note, bond, mortgage, indenture, permit,
license, franchise, lease, contract, or other instrument or
obligation to which Seller is a party except, in the case of (b)
and (c) above, for such conflicts, violations, breaches, defaults,
terminations, cancellations and accelerations which in the
aggregate will not have a material adverse effect on the Business
and, in the case of (c) above, such liens, charges or encumbrances
permitted by Section 2.05 hereof.
Except as set forth in Schedule 2.04, no notice, declaration,
report or other filing or registration with, and no waiver,
consent, approval or authorization of, any governmental or
regulatory authority or instrumentality or any other person is
required to be submitted, made or obtained by Seller in connection
with the execution, delivery or performance of this Agreement or
the Seller Agreements and the consummation of the transactions
contemplated hereby or thereby.
2.05 Title to Properties and Related Matters.
(a) Upon consummation of the transactions contemplated by
this Agreement, Purchaser will become the legal and beneficial
owner of the Purchased Assets, free and clear of all mortgages,
pledges, liens, security interests, conditional sales agreements,
required consents, encumbrances or charges of any kind.
("Encumbrances"), except for:
(1) those Encumbrances set out in Schedule 2.05(a);
(2) any law, ordinance or governmental regulation set
out in Schedule 2.05(a) (including, but not limited to building and
zoning ordinances) restricting or regulating or prohibiting the
occupancy, use or enjoyment of the Leased Real Property (or any
portion thereof) or regulating the character, dimensions or
location of any improvement now or hereafter erected on the Leased
Real Property or prohibiting a separation in ownership or a
reduction in the dimension of area of the Leased Real Property, or
the effect of any violation of any such law, ordinance or
governmental regulation which is not now and will not on the
Closing Date, either singly or in the aggregate, interfere in any
material way with the present or any intended use of any such real
estate, or substantially decrease its value; or
(3) liens placed upon the Purchased Assets by the
Manager without the consent or actual knowledge of Action.
(b) The Real Property Lease now is, and on the Closing Date
will be, valid and binding and in full force and effect, and is not
now, and on the Closing Date will not be, in default as to the
payment of rent or otherwise. A true and correct and complete copy
of the Real Property Lease has heretofore been delivered by Seller
to Purchaser.
2.06 Litigation.
Except (i) as set forth in Schedule 2.06, and (ii) for claims,
actions, suits, proceedings or investigations with respect to
Environmental Laws (as defined in Section 2.07(b)), to the actual
knowledge of Seller there are no claims, actions, suits,
proceedings or investigations by or before any court or
governmental or other regulatory or administrative agency,
instrumentality or authority pending or threatened by or against or
affecting the Leased Real Property or the Business, except for such
claims, actions, suits, proceedings or investigations which in the
aggregate will not have a material adverse affect on the Business.
2.07 Environmental Compliance.
(a) Except as set forth on Schedule 2.07, to the best actual
knowledge of Seller: (i) there are no conditions existing currently
on the Leased Real Property which were created prior to September
1991, and would be likely to subject Seller or Purchaser to
damages, penalties, injunctive relief or cleanup costs under any
Environmental Laws or assertions thereof, or which require or are
likely to require cleanup, removal, remedial action or other
response pursuant to Environmental Laws by Seller; (ii) Seller is
not a party to any litigation or administrative proceedings, nor so
far as is actually known by Seller is any litigation or
administrative proceeding threatened against it which asserts or
alleges that Seller has violated or is violating Environmental Laws
with respect to the Leased Real Property or that Seller is required
to clean up, remove or take remedial or other responsive action
with respect to the Leased Real Property due to the disposal,
depositing, discharge, leaking or other release of any hazardous
substances or materials; (iii) neither the Leased Real Property nor
Seller is subject to any judgment, decree, order or citation
affecting the Leased Real Property and related to or arising out of
Environmental Laws, and Seller has not been named or listed as a
potentially responsible party by any governmental body or agency in
a matter affecting the Leased Real Property and arising under any
Environmental Laws; (iv) prior to September 1991, Seller has
obtained all permits, licenses or approvals required under
applicable Environmental Laws which are necessary for the use,
development, occupancy, operation and conduct of the Business at
the Leased Real Property; and (v) prior to September 1991, all use,
generation, manufacturing, release, discharge, storage, deposit,
treatment, recycling or disposal of any materials on, under or at
the Leased Real Property or transported to or from the Leased Real
Property (or tanks or other facilities thereon containing such
materials) were being conducted in accordance withEnvironmental
Laws including without limitation those requiring cleanup, removal
or any other remedial action.
(b) For purposes of this Agreement, the term "Environmental
Laws" shall mean any federal, state or local statute, ordinance,
rule, regulation, order, consent decree or common law doctrine,
judgment, injunction and lawfully imposed requirements issued,
promulgated or entered thereunder relating to pollution or
protection of the environment, including laws relating to
reclamation of land and waterways and laws relating to emissions,
discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment (including, without
limitation, ambient air, surface water, ground water, land surface
or subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes.
2.08 Taxes.
Seller has timely and properly filed all federal, state, local
and foreign tax returns and reports and forms which it is or has
been required to file, either on its own behalf or on behalf of its
employees or other persons or entities, including but not limited
to income, profits, franchise, sales, use, occupation, property,
excise, ad valorem and payroll (including employee taxes withheld),
all such returns and reports and forms being true and correct and
complete in all respects, and has paid all taxes, including
penalties and interest, if any, which have become due pursuant to
such returns or reports or forms or pursuant to assessments
received by Seller.
2.09 No Undisclosed Information.
Except as disclosed herein and/or as actually known by
Purchaser or the Manager, including the Schedules and Exhibits
hereto, Seller has no actual knowledge of any matter involving
Seller which might have a material adverse effect on Seller or
which is necessary for a full understanding of the financial
condition and operations of Seller. Neither this Agreement nor any
document, certificate or statement furnished or to be furnished to
Purchaser by or on behalf of Seller in connection with the
transactions provided for herein contains or will contain any
untrue statement of a material fact or omits or will omit to state
a material fact necessary in order to make the statements contained
herein or therein not misleading.
ARTICLE III -- REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser and the Manager hereby each represents and warrants
to Seller as follows:
3.01 Corporate Organization.
Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of
Pennsylvania.
3.02 Authorization.
Purchaser has full corporate power and authority to execute
and deliver this Agreement and the documents to be delivered at the
Closing pursuant to Section 1.06 hereof (collectively, the
"Purchaser Agreements") and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of
this Agreement and the Purchaser Agreements by Purchaser and the
consummation by Purchaser of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate
action and no other corporate action or proceeding on the part of
Purchaser is necessary to authorize the execution and deliver by
Purchaser of this Agreement or the Purchaser Agreements or the
consummation by Purchaser of the transactions contemplated hereby
or thereby. This Agreement has been, and the Purchaser Agreements
on the Closing Date will be, duly executed and delivered by
Purchaser and this Agreement is, and on the Closing Date each of
the Purchaser Agreements will be, legal, valid and binding
obligations of Purchaser, enforceable against Purchaser in
accordance with their terms, subject to applicable laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity, regardless of whether applied in a
proceeding at law or in equity.
3.03 No Violations; No Consents or Approvals Required.
Neither the execution and delivery of this Agreement or the
Purchaser Agreements nor the consummation of the transactions
contemplated hereby or thereby will (i) conflict with or violate
any provision of the Certificate of Incorporation or By-Laws of
Purchaser, (ii) conflict with or violate any law, rule, regulation,
ordinance, order, writ, injunction, judgment or decree applicable
to Purchaser or by which any of its properties or assets are bound
or affected or (iii) conflict with or result in any breach of or
constitute a default (or an event which will notice or lapse of
time or both would become a default) under, or give to others any
rights or termination or cancellation of, or accelerate the
performance required by or maturity of, or result in the creation
of, any security interest, lien, charge or encumbrance on any of
its assets or properties pursuant to any of the terms, conditions
or provisions of, any note, bond, mortgage, indenture, permit,
license, franchise agreement, lease, contract, or other instrument
or obligation to which Purchaser is a party or by which Purchaser
or any of its properties or assets is bound or affected, except, in
the case of (ii) and (iii) above, for such conflicts, violations,
breaches, defaults, terminations, cancellations and accelerations
which in the aggregate will not have a material adverse effect on
the ability of Purchaser to consummate the transactions
contemplated by this Agreement and the Purchaser Agreements. No
notice, declaration, report or other filing or registration with,
and no waiver, consent, approval or authorization of, any
governmental or regulatory authority or instrumentality or any
other person is required to be submitted, made or obtained by
Purchaser in connection with the execution, delivery or performance
of this Agreement or the Purchaser Agreements and the consummation
of the transactions contemplated hereby or thereby.
3.04 Environmental Compliance.
(a) To the best actual knowledge of Purchaser and the
Manager: (i) there are no conditions existing currently on the
Leased Real Property, which were created on or after September
1991, and would be likely to subject Seller or Purchaser to
damages, penalties, injunctive relief or cleanup costs under any
Environmental Laws or assertions thereof, or which require or are
likely to require cleanup, removal, remedial action or other
response pursuant to Environmental Laws by Seller; (ii) Seller is
not a party to any litigation or administrative proceedings, nor so
far as is actually known by Purchaser and Manager is any litigation
or administrative proceeding threatened against Seller which
asserts or alleges that Seller has violated or is violating
Environmental Laws with respect to the Leased Real Property or that
Seller is required to clean up, remove or take remedial or other
responsive action with respect to the Leased Real Property due to
the disposal, depositing, discharge, leaking or other release of
any hazardous substances or materials; (iii) neither the Leased
Real Property nor Seller is subject to any judgment, decree, order
or citation affecting the Leased Real Property and related to or
arising out of Environmental Laws, and Seller has not been named or
listed as a potentially responsible party by any governmental body
or agency in a matter affecting the Leased Real Property and
arising under any Environmental Laws; (iv) from and after September
1991, Seller has obtained all permits, licenses or approvals
required under applicable Environmental Laws which are necessary
for the use, development, occupancy, operation and conduct of the
Business at the Leased Real Property; and (v) from and after
September 1991, all use, generation, manufacturing, release,
discharge, storage, deposit, treatment, recycling or disposal of
any materials on, under or at the Leased Real Property or
transported to or from the Leased Real Property (or tanks or other
facilities thereon containing such materials) have been conducted
in ccordance with Environmental Laws including without limitation
those requiring cleanup, removal or any other remedial action.
3.05 No Undisclosed Information.
Except as disclosed herein, including the Schedules and
Exhibits hereto, neither Purchaser nor the Manager has any actual
knowledge of any matter involving Seller which might have a
material adverse effect on Seller or which is necessary for a full
understanding of the financial condition and operations of Seller,
other than those matters previously disclosed or actually known to
Action and/or the Treasurer and/or the immediate past Chairman of
Seller. Neither this Agreement nor any document, certificate or
statement furnished or to be furnished to Seller by or on behalf of
Purchaser in connection with the transactions provided for herein
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary in order to
make the statements contained herein or therein not misleading.
3.06 Absence of Certain Changes or Events.
To the best of Purchaser s and the Manager s actual knowledge,
and except for those matters previously disclosed or actually known
to Action and/or the Treasurer and/or immediate past Chairman of
Seller, since March 31, 1995, there has not been (i) any
transaction outside the ordinary course of business of Seller
(including without limitation any transactions with respect to the
Inventory and the Letter of Credit Inventory outside the ordinary
course of business of Seller or inconsistent with Seller s past
practices); (ii) any increase in the rate or terms of compensation
payable or to become payable by Seller to its employees, except
increases occurring the ordinary course of business consistent with
past practices; (iii) any change in the terms of any bonus,
insurance, pension, or other employee benefit plan, payment or
arrangement made to, for or with any such employees, except changes
occurring in the ordinary course of business consistent with past
practices; (iv) any entry into any agreement, commitment or
transaction by Seller which is material to Seller, except for
agreements, commitments or transactions in the ordinary course of
business.
ARTICLE IV -- COVENANTS
4.01 Conduct of the Business Subsequent to the Closing and
Personal Guarantees.
(a) Purchaser and the Manager each hereby covenants that from
and after the Closing Date Purchaser shall pay all Assumed
Liabilities in a commercially reasonable and timely manner, and
otherwise as required by the provisions of Section 1.02(b), it
being contemplated that Purchaser will attempt to negotiate payment
terms with some of the suppliers related to Trade Accounts, with
any set-off, defense or counterclaim reasonably made by Purchaser;
provided that Purchaser shall indemnify Seller and Action against
any and all damages incurred by Seller or Action by reason of any
delay in payment, and any such set-offs, defenses or counterclaims.
Neither Seller, the Manager nor Purchaser shall take any action
that would render any such party incapable of performing their
respective covenants set forth above.
(b) The Manager, TM and RT (together, the Guarantors")
jointly and severally guaranty and become surety for the payment by
Purchaser of the Trade Accounts, other than the Special Trade
Accounts (as defined below), and in furtherance thereof hereby
personally indemnify and hold Seller and Action harmless from and
against any liabilities, damages, claims, costs, and expenses
(including without limitation reasonable attorneys fees) and
obligations that Seller and/or Action may at any time suffer or
incur as a result of any failure of Purchaser (i) to pay, perform
and discharge the Trade Accounts (other than the Special Trade
Accounts) and (ii) to promptly indemnify Seller and Action as
required in Section 4.01(a) above; provided, however, that in no
event shall the total liabilities of the Guarantors pursuant to
this Section 4.01(b) in the aggregate exceed $200,000. As used
herein, the term Special Trade Accounts" shall mean the Trade
Accounts described as Excluded Accounts" on Schedule 4.01(b) hereto
and any Trade Accounts which are not listed as Included Accounts"
on such Schedule. Nothing set forth in this Section 4.01(b) shall
be deemed to except, or shall have the effect of exempting, the
Special Trade Accounts from the obligation of Purchaser set forth
in Section 4.01(a) above. The obligations of the Guarantors under
this Section 4.01(b) shall be absolute and unconditional and shall
be performed without set-off, counterclaim, demand or defense.
4.02 Access to Information.
(a) Prior to the Closing Date, Seller (i) will give Purchaser
and its respective authorized representatives reasonable access,
subject to such limitations or procedures as may be necessary to
protect the attorney-client privilege or the work product doctrine,
to the Real Property, to the Leased Real Property, to all offices
and other facilities, and to all books and records of the Business,
(ii) will permit Purchaser and all such persons to make such
inspections as they may reasonably request and (iii) will cause its
officers to furnish Purchaser and all such persons with such
financial and operating data and other information with respect to
the Purchased Assets and the Business as they may from time to time
reasonably request.
(b) For a period of at least 10 years following the Closing
Date, Purchaser will retain, at Purchaser's sole expense, the
books, records and other data of the Business transferred pursuant
to Section 1.01(a) hereof. During such period, Purchaser will
afford to Seller, its counsel and accountants, during normal
business hours, reasonable access to such books, records and other
data; provided, however, that before disposing of any such
materials it will first notify Seller and permit Seller, at its
sole expense, to remove such materials.
(c) Purchaser shall, at the request of Seller, (i) provide
reasonable assistance in the collection of information or documents
and (ii) use its best efforts to make Purchaser's employees
available when reasonably requested by Seller in connection with
claims or actions brought by or against third parties based upon
events or circumstances concerning Nonassumed Liabilities,
including as a witness or for depositions, provided that
Purchaser s business shall not be adversely disrupted thereby.
Seller shall reimburse Purchaser for all reasonable out-of-pocket
costs and expenses incurred by Purchaser in providing said
assistance.
(d) Seller shall, at the request of Purchaser, (i) provide
reasonable assistance in the collection of information or documents
and (ii) use its best efforts to make Seller's employees available
when reasonably requested by Purchaser in connection with claims or
actions brought by or against third parties based upon events or
circumstances concerning Assumed Liabilities, including as a
witness or for depositions, provided that Seller s business shall
not be adversely disrupted thereby. Purchaser shall reimburse
Seller for all reasonable out-of-pocket costs and expenses incurred
by Seller in providing said assistance.
(e) After the Closing Date, Seller agrees to make available
to Purchaser for inspection and copying at Purchaser's expense, at
reasonable times upon request therefor, any records and documents
relating to the Business and the Purchased Assets retained by
Seller which, at the time of such request, are in Seller's
possession or control. In addition, Seller agrees to make
available to Purchaser financial data and other information
retained by Seller relating to the Business and the Purchased
Assets, and will make available such former employees of the
business employed by Seller, as Purchaser shall from time to time
reasonably request, to permit Purchaser to prepare any tax returns
and in connection with any governmental examination of tax returns
relating to the Business or the Purchased Assets for period from
and after the Closing Date. Seller's reasonable expenses in
connection therewith shall be reimbursed by Purchaser.
4.03 Efforts to Consummate the Transaction.
(a) Upon the terms and subject to the conditions hereof, each
of the parties hereto agrees to use its best efforts to take or
cause to be taken all actions and to do or cause to be done all
things necessary, proper or advisable to consummate the
transactions contemplated by this Agreement, the Seller Agreements
(including but not limited to the Employment Contracts and the Non-
Competition Agreement) and the Purchaser Agreements and shall use
its best efforts to obtain all necessary waivers, consents and
approvals and to effect all necessary registrations and filings.
(b) In the event Purchaser or Seller, as the case may be, is
unable prior to the Closing, to obtain any consents, approvals,
waivers or other authorizations to transfer to Purchaser any Asset,
Purchaser and Seller will cooperate with each other in order to
obtain such consents, approvals, waivers or other authorizations at
the earliest practicable date. In each instance where such
consents, approvals, waivers or other authorization cannot be
obtained prior to the Closing, Seller shall use its best efforts to
enter into such alternative arrangements and agreements with
Purchaser as may be appropriate in order to permit Purchaser to
realize, receive and enjoy substantially similar rights and
benefits and to enable Purchaser to conduct operations of the
Business until the consents, approvals, waivers or other
authorizations are obtained. If, after the exercise of diligent
effort, any such consents, approvals, waivers or other
authorizations are not obtained, Seller agrees to cooperate with
Purchaser in any reasonable arrangements designed to provide, to
the extent reasonably practicable, for the benefit of Purchaser any
and all rights of Seller in and to such Asset.
4.04 Public Announcements.
Purchaser and Seller will consult with each other before
issuing any press release or otherwise making any public statements
with respect to this Agreement or the transactions contemplated
hereby and shall not issue any such press release or make any such
public statement prior to such consultation, except as may be
required by law or any national securities exchange.
4.05 Waiver of Compliance with Bulk Transfer Requirements.
Except for Assumed Liabilities, Seller shall pay and discharge
as they become due all liabilities and obligations to creditors of
Seller entitled to assert, under any Bulk Transfer Act or Acts,
claims against Purchaser as the transferee of the assets of Seller,
and in consideration thereof Purchaser waives compliance by Seller
with the provisions of any such Act or Acts.
4.06 Collection of Accounts.
From and after the Closing Date, Purchaser shall cooperate
fully with Seller in Seller s collection of those items set forth
in Section 1.01(b)(2) hereof (the Accounts"). After the Closing
Date: (i) if any payments are made on any of the Accounts to
Purchaser, Purchaser shall promptly remit such payments to Seller,
and (ii) if any payments are made to Seller with respect to any
amounts due to Purchaser hereunder, including but not limited to
Purchaser s accounts receivable created by Purchaser after the
Closing Date, Seller shall promptly remit such payments to
Purchaser.
ARTICLE V -- CONDITIONS TO CLOSING
5.01 General Condition.
The obligations of each party hereto to consummate the
transactions contemplated by this Agreement shall be subject to the
satisfaction at or prior to the Closing that no order, statute,
rule, regulation, executive order, injunction, stay, decree or
restraining order shall have been enacted, entered, promulgated or
enforced by any court of competent jurisdiction or governmental or
regulatory authority or instrumentality, and shall then be in
effect, that prohibits the consummation of the transactions
contemplated hereby.
5.02 Conditions to Obligations of Seller.
The obligations of Seller to effect the transactions
contemplated by this Agreement shall be subject to the satisfaction
at or prior to the Closing of the following conditions:
(a) Purchaser shall have performed in all material respects
its obligations required under this Agreement to be performed by it
at or prior to the Closing.
(b) The representations and warranties of Purchaser contained
herein shall be true and correct in all material respects at and as
of the Closing Date as if made at and as of such time except to the
extent that a different time is specifically stated in such
representations and warranties.
(c) Seller shall have received the Purchase Price and the
documents referred to in Section 1.06 hereof.
5.03 Conditions to Obligation of Purchaser.
The obligation of Purchaser to effect the transactions
contemplated by this Agreement shall be subject to the satisfaction
at or prior to the Closing of the following conditions:
(a) Seller shall have performed in all material respects its
obligations required under this Agreement to be performed by it at
or prior to the Closing.
(b) The representations and warranties of Seller contained
herein shall be true and correct in all material respects at and as
of the Closing Date as if made at and as of such time except to the
extent that a different time is specifically stated in such
representations and warranties.
(c) Purchaser shall have received the documents referred to
in Section 1.05 hereof.
ARTICLE VI -- TERMINATION, AMENDMENT AND WAIVER
6.01 Termination.
This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the
Closing:
(a) By mutual consent of Purchaser and Seller;
(b) By Purchaser if any of the conditions set forth in
Section 5.01 or 5.03 hereof become incapable of satisfaction; or
(c) By Seller if any of the conditions set forth in Section
5.01 or 5.02 hereof became incapable of satisfaction.
Except for Section 7.01 and for liability for breaches of this
Agreement, upon the termination of this Agreement pursuant to this
Section 6.01, this Agreement shall forthwith become null and void.
6.02 Amendment.
This Agreement may be amended by the parties hereto at any
time. This Agreement may not be amended except by an instrument in
writing signed by the parties hereto.
6.03 Waiver.
Any party hereto may (i) extend the time for the performance
of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant
hereto, or (iii) waive compliance with any of the agreements, or
satisfaction of any of the conditions, contained herein. Any
agreement on the party of the party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing
signed by such party.
ARTICLE VII -- INDEMNIFICATION
7.01 Survival of Representations and Warranties.
(a) All representations, warranties and covenants made by
Seller and by Purchaser and the Manager shall survive the Closing
hereunder for a period of three (3) years following the Closing
Date, and any claim with respect to the inaccuracy of any such
representation or warranty must be made during such three-year
period. The representations, warranties or covenants contained
herein shall not be deemed to be waived or otherwise affected by
any investigation at any time made by or on behalf of any party
hereto.
(b) For the purposes of this Article VII, the term "Purchaser
Group" shall include Purchaser and any director, officer or
employee thereof, and the term "Seller Group" shall include Seller
and any of its subsidiaries and any director, officer or employee
thereof.
(c) Notwithstanding anything to the contrary herein (except
as provided in Section 4.01(b) hereof), (i) the Manager shall not
in any event be personally liable to Seller, Action or any other
party for any inaccuracy in or breach or nonfulfillment in any
material respect of any representation, warranty, covenant or
agreement of the Manager contained in this Agreement or any other
document executed by Purchaser as contemplated herein, and (ii) any
indemnification rights of any party set forth herein may not be
directly or indirectly enforced against the Manager, RT or TM.
7.02 Agreement to Indemnify.
(a) Subject to the limitations hereinafter set forth, from
and after the Closing, Seller and Action each jointly and severally
agrees to indemnify, defend and hold harmless the Purchaser Group
from and against any and all demands, claims, losses, damages,
costs and expenses, including without limitation interest, costs,
penalties and reasonable attorneys' fees (collectively, "Damages"),
asserted against, resulting to, imposed upon or incurred or
suffered by any member of the Purchaser Group as a result of or
arising from (i) the Nonassumed Liabilities; and (ii) any
inaccuracy in or breach or nonfulfillment in any material respect
of any representation, warranty, covenant or agreement of Seller
contained in this Agreement.
(b) Subject to the limitations hereinafter set forth,
Purchaser agrees to indemnify, defend and hold harmless the Seller
Group from and against any and all Damages, asserted against,
resulting to, imposed upon or incurred or suffered by any member of
the Seller Group as a result of or arising from (i) the Assumed
Liabilities; and (ii) any inaccuracy in or breach or
nonfulfillment in any material respect of any representation,
warranty, covenant or agreement of Purchaser and/or the Manager
contained in this Agreement or the Note.
(c) For purposes of this Article VII, all Damages shall be
computed net of (i) any actual income tax benefit resulting
therefrom to the indemnified party, (ii) any insurance coverage
with respect thereto, and (iii) any amounts recovered from any
third parties based on claims the indemnified party has against
such third parties which reduce the Damages that would otherwise be
sustained; provided, however, that, in all cases, the timing of the
receipt or realization of insurance proceeds or income tax benefits
or recoveries from third parties shall be taken into account in
determining the amount of reduction of Damages. Each indemnified
party agrees to use its best efforts to pursue any claims or rights
it may have against any third party which would reduce the amount
of Damages otherwise incurred by such indemnified party.
7.03 Procedure for Indemnification.
(a) In the event that any indemnified party receives written
notice of the commencement of any action or proceeding, the
assertion of any claim by a third party or the imposition of any
penalty or assessment for which indemnity may be sought pursuant to
this Article VII (a "Third Party Claim"), and such indemnified
party shall promptly provide the indemnifying party with notice of
such action, proceeding, claim, penalty or assessment, and such
indemnifying party shall, upon receipt of such notice, be entitled
to participate in or, at the indemnifying party's option, assume
the defense, appeal or settlement of such action, proceeding,
claim, penalty or assessment with respect to which such indemnity
has been invoked with counsel of its choosing, and such indemnified
party will fully cooperate with the indemnifying party in
connection therewith; provided that such indemnified party shall be
entitled to employ one counsel to represent such indemnified party
if, in such indemnified party's reasonable judgment, a conflict of
interest between the indemnifying party and the indemnified party
exists in respect of such claim and in that event the reasonable
fees and expenses of such separate counsel shall be paid by the
indemnifying party. In the event that the indemnifying party fails
to assume the defense, appeal or settlement of such action,
proceeding, claim, penalty or assessment within 20 days after
receipt of notice thereof from such indemnified party, such
indemnified party shall have the right to undertake the defense or
appeal of or settle or compromise such action, proceeding, claim,
penalty or assessment on behalf of and for the account and risk of
the indemnifying party. The indemnifying party shall not settle or
compromise any such action, proceeding, claim, penalty or
assessment without such indemnified party's prior written consent,
unless the terms of such settlement or compromise release such
indemnified party from any and all liability with respect to such
Claim.
(b) Any indemnifiable claim that is not a Third Party Claim
shall be asserted by written notice to the indemnifying party. If
the indemnifying party does not respond to such notice within 60
days, it shall have no further right to contest the validity of
such claim.
7.05 Remedies Exclusive.
Except for the provisions of the Note and the Security
Agreement, the remedies provided in this Article VII shall be
exclusive and shall preclude assertion by an indemnified party of
any other rights or the seeking of any and all other remedies
against an indemnifying party for claims based on this Agreement.
ARTICLE VIII -- MISCELLANEOUS
8.01 Expenses, Taxes and Closing Prorations.
(a) Except as otherwise provided herein, each party hereto
will pay all fees and expenses incurred by it in connection with
this Agreement and the consummation of the transactions
contemplated hereby.
(b) All excise, sales, use or transfer taxes, including real
estate transfer taxes, and any recording fees or taxes, or any
other such fees or taxes which are payable or arise as a result of
the execution of this Agreement or the transfer of Assets to
Purchaser pursuant to this Agreement shall be paid by Purchaser.
Further, Purchaser shall at Closing reimburse Seller for the
security deposit paid by Seller to the lessor under the Real
Property Lease in the amount of $12,000 and for the deposit for a
trade show reservation in the amount of $3,160. In the event that
all or any portion of either of such deposits is returned to Seller
by the parties holding the same, such amounts shall be immediately
paid by Seller to Purchaser.
(c) All utilities relating to the Leased Real Property and
rent payable under the lease with regard to the Leased Real
Property shall be prorated as of 12:01 a.m. on the Closing Date.
8.02 Further Assurances.
From time to time after the Closing and without further
consideration, Sellers, upon the request of Purchaser and at
Purchaser's expense, shall execute and deliver such documents and
instruments of conveyance and transfer as Purchaser may reasonably
request in order to consummate more effectively the purchase and
sale of the Purchased Assets as contemplated hereby and to best in
Purchaser title to the Purchased Assets transferred hereunder.
8.03 Notices.
Any notices or other communications required or permitted
hereunder or otherwise in connection herewith shall be in writing
and shall be deemed to have been duly given when delivered in
person or transmitted by facsimile transmission or on receipt after
dispatch by registered or certified mail, postage prepaid,
addressed, as follows:
If to Seller to:
Kensington Lamp Company
c/o Action Industries, Inc.
Action Industrial Park
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attn: Xx. Xxxxxxx X. Xxxxxxxx, Xx. V.P., Finance
If to Purchaser to:
Kensington Collection, Inc.
00 X. Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attn: Xx. Xxxxxx Xxxxxxxx, President
or such other address as the person to whom notice is to be given
has furnished in writing to the other parties. A notice of change
in address shall not be deemed to have been given until received by
the addressee.
8.04 Headings.
The descriptive headings of the several Articles and Sections
of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
8.05 Applicable Law.
This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania
regardless of the laws that might otherwise govern under applicable
principles of conflict of laws thereof.
8.06 Assignment.
This Agreement and all the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Neither this
Agreement nor any of the rights hereunder shall be assigned by any
of the parties hereto without the prior written consent of the
other parties; provided, that from and after the Closing Date
Seller may assign to Action or any of its affiliates all or part of
Seller s rights hereunder and/or the Note (but Seller may not
assign any of its liabilities or obligations described herein,
created hereunder or related hereto).
8.07 Counterparts.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.08 Entire Agreement.
This Agreement (including the documents and instruments
referred to herein) (a) constitute the entire agreement and
supersede all other prior agreements and understandings, both
written and oral, among the parties and (b) is not intended to
confer upon any person other than the parties hereto any rights or
remedies hereunder.
8.09 Severability.
In the event that any one or more of the provisions or parts
of a provision contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect in any
jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or part of a provision of this
Agreement or any other jurisdiction, but this Agreement shall be
reformed and construed in any such jurisdiction as if such invalid
or illegal or unenforceable provision or part of a provision had
never been contained herein and such provision or part shall be
reformed so that it would be valid, legal and enforceable to the
maximum extent permitted in such jurisdiction.
8.10 Brokers and Finders.
Neither Purchaser, the Manager or Seller nor its officers,
directors or employees has incurred any liability for any brokerage
fees, commissions, finders' fees or similar fees or expenses for
which they may be liable, except that Purchaser and Seller are each
independently liable for certain commissions and/or fees to J.T.R.
Capital in connection herewith.
[THE REST OF THIS PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its duly authorized
officer, all as of the day and year first above written.
SELLER:
KENSINGTON LAMP COMPANY
By: X. X. XXXXXXXX
Title: Treasurer
PURCHASER:
KENSINGTON COLLECTION, INC.
By: XXXXXX XXXXXXXX
Title:
ACTION INDUSTRIES, INC.
By: X. X. XXXXXXXX
Title: Senior Vice President
MANAGER:
XXXXXX XXXXXXXX
Xxxxxx Xxxxxxxx
XXXXXX XXXXXX
Xxxxxx Xxxxxx
XXXXXX XXXXXXXX
Xxxxxx XxXxxxxx
