AGREEMENT OF SALE
BY AND BETWEEN
BJIP, INC.
AND
CHERRY GROVE, INC.
AGREEMENT
THIS AGREEMENT dated and to be effective as of the 29th day of
December, 1995, although executed and delivered on the date of the latest
execution at the end hereof, by and between the Seller (defined in Section 1.9
hereof) and the Buyer (defined in Section 1.3 hereof).
WITNESSETH:
WHEREAS, Buyer desires to acquire from Seller the Purchased Assets
(defined in section 1.8 hereof) and Seller is willing to sell and convey the
Purchased Assets to Buyer, all on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, other good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
Article 1. Definitions.
As used herein, the following defined terms shall have the following
meanings, unless the context specifically requires otherwise:
1.1 "Affiliate" shall mean each Person (defined in Section 1.6 hereof)
controlling, controlled by or under common control with, any other Person.
1.2 "Agreement" shall mean this Agreement and all Exhibits,
amendments, extensions, revisions and supplements thereto.
1.3 "Buyer" shall mean BJIP, Inc., a Delaware corporation, with its
principal business office at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx
000, Xxx Xxxxxxx, XX 00000, and every Affiliate of BJIP, Inc. to which this
Agreement may be assigned, regardless of whether any or all of such Affiliates
are in existence on the effective date of this Agreement.
1.4 "Closing" shall mean the consummation of the transactions
contemplated by Section 5.1 of this Agreement which shall be as of December 29,
1995.
1.5 "Closing Date" shall mean December 29, 1995 or such later date as
the parties shall agree to hold the Closing.
1.6 "Person" shall mean an individual, unincorporated association,
partnership, trust, joint venture, fiduciary, corporation and every other form
of legal entity.
1.7 "Purchase Price" shall mean the aggregate amount to be paid for the
Purchased Assets in accordance with Section 2.2 of this Agreement.
1.8 "Purchased Assets" shall mean (a) all trademarks, service marks,
designs, logos, trade names and business names, and all variations and
derivations thereof, together with the goodwill of the business associated
therewith, (b) all patents and patent applications, and the reissues, divisions,
continuations and extensions thereof, (c) all copyrights, and (d) other
intellectual property rights, whether registered or unregistered (collectively,
the "Intellectual Property") used by, or in connection with the business of,
Xxxxx Xxxxxx company, or in which Xxxxx Xxxxxx Company has an interest by
license, agreement, shop right, common law or otherwise, together with all
marketing and manufacturing rights associ-
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ated with the Intellectual Property; the applications therefor; the
registrations thereof; the renewals, licenses, and royalty, income and payment
rights therefor; and all rights of recovery and of legal action for past
infringement. Purchased Assets shall include without limitation those patents,
trademarks and designs set forth on the attached Schedule 4.1.4.
1.9 "Seller" shall mean Cherry Grove, Inc., a Delaware corporation,
with its sole place of business located at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx, 00000.
Article 2. Assets Sale and Purchase; Purchase Price
2.1 Seller agrees to sell and deliver to Buyer, and Buyer agrees to
purchase from Seller, at the Closing and pursuant to the terms and conditions of
this Agreement, all of the right, title and interest of Seller in and to the
Purchased Assets.
2.2 Purchase Price payable by Buyer to Seller for the Pur-
chased Assets shall be the sum of Twelve Million Dollars
($12,000,000);
2.3 This Agreement does not pertain to the sale or purchase of any
assets of Seller not specifically set forth herein or on the Exhibits attached
hereto.
Article 3. Closing
3.1 The Closing shall take place by facsimile transmission on the
Closing Date. Whenever reference is made herein to a state of acts in existence
on the Closing Date, or to the taking place of events before or on the Closing
Date, such reference shall be taken to refer to the opening of business on such
Closing Date.
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Article 4. Representations and Warranties
4.1 Representations and Warranties as to the Seller. Seller
represents and warrants to the Buyer as of the date hereof as fol-
lows:
4.1.1 Corporate Status.
(a) Corporate existence. Seller is a duly organ-
ized and validly existing corporation in good standing under the laws of the
State of Delaware. Seller operates in no other states, and has no material
federal, state or local tax liabilities which are past due.
(b) Authorization, etc. Seller has full corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and to perform its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all requisite
corporate action on the part of Seller.
4.1.2 Litigation. There are no actions, suits or proceedings pending
or, to the knowledge of the Seller, threatened or any basis for any such
actions, suits or proceedings against or affecting Seller or its respective
properties, assets or business with respect to the Purchased Assets.
4.1.3 Consents. No material consent, approval, authorization, permit,
order, filing, registration or qualification of or with any court, governmental
authority or third person is required to be obtained by the Seller in connection
with the execution and
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delivery of this Agreement or the consummation by the Seller of the transactions
contemplated hereby in the manner contemplated hereby.
4.1.4 Purchased Assets. Schedule 4.1.4 contains a list of all
trademarks, patents and patent applications, service marks, trade names and
copyrights, whether registered or not, owned by Seller and used by Xxxxx Xxxxxx
Company in which Xxxxx Xxxxxx Company has an interest by license, agreement,
shop right, common law, or otherwise. Seller owns all of the Purchased Assets
free and clear of any liens, claims, charges, options or encumbrances.
4.1.6 Disclosure. This Agreement, the Schedules hereto and the
certificates and other documents furnished by Seller to the Buyer pursuant
hereto, taken as a whole, do not as of their respective dates contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements contained herein and therein not misleading.
4.2 As an inducement to Seller to sell the Purchased Assets, Buyer
represents, warrants and covenants to Seller as follows:
4.2.1 Corporate existence. Buyer is a duly organized and validly
existing corporation in good standing under the laws of the State of Delaware.
Buyer is duly qualified or registered as a foreign corporation in each other
state or jurisdiction in which its ownership of properties or the conduct of its
business requires such registration or qualification.
4.2.2 Authorization, etc. Buyer has full corporate power
and authority to execute and deliver this Agreement and to consum-
mate the transactions contemplated hereby and to perform its obli-
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gations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite corporate action on the part of Buyer.
Article 5. Closing Documents.
5.1 At the Closing:
a. Seller shall deliver to Buyer:
i. Bills of sale with covenants of warranty,
endorsements, assignments and other good and
sufficient instruments of transfer,
conveyance and assignment, in form
satisfactory to Buyer, effective to vest in
Buyer good and marketable title, free and
clear of all liens, charges and encumbrance,
to the Purchased Assets;
ii. All of the documents, contracts, agreements,
records, books, materials, insurance policies,
trade secrets, and all other data relating to
the Purchased Assets, including any documents,
records and materials necessary to vest all
right, title and interest in and to the Pur-
chased Assets to Buyer, with good and suffi-
cient assignments of all of the foregoing in
form satisfactory to Buyer;
iii. Certificate of an officer of Seller that each
of the representations, warranties and cove-
nants set forth in Section 4.1 of this Agree-
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ment is true and correct as though made again
as of the Closing Date;
iv. An opinion of counsel to Seller, dated the
Closing Date, reflecting the statements of
Section 4.1 of this Agreement;
v. Evidence, in form satisfactory to Buyer, of
the approval by the directors of Seller of the
execution and delivery of this Agreement and
the consummation of the transactions contem-
plated by this Agreement;
vi. Such other documents and instruments as Buyer
may deem necessary or desirable to consummate
the transactions contemplated by this Agree-
ment.
b. Buyer shall deliver to Seller:
i. An amount of actual cash consideration total-
ing in the aggregate $12,000,000.
ii. Certificate of an officer of Buyer that each
of the representations, warranties and
covenants set forth in Section 4.2 of this
Agreement is true and correct as though made
again as of the Closing Date.
Article 6. Termination.
In the event that on or prior to the Closing Date Buyer has not
consummated the stock purchase transaction contemplated by that certain Stock
Purchase Agreement between XXXX Furniture, Inc. and
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BJCL, Inc. dated as of November 7, 1995, as amended (the "Stock Purchase
Agreement"). This Agreement will terminate and neither Seller nor Buyer will
have any liability to the other as a result of this Agreement only.
Article 7. Survival; Arbitration
7.1 Survival. The representations, warranties and covenants of Seller
and Buyer shall survive the Closing, the delivery of all documents and
instruments required hereunder and the consummation of the transactions
contemplated by this Agreement, notwithstanding any investigation which may be
or have been conducted by or on behalf of any of the parties.
7.2 Arbitration. Any dispute between the parties arising out of this
Agreement shall be tried by arbitration pursuant to the Rules of the American
Arbitration Association in effect at the time of such arbitration, all as set
forth in Section 7.14 of the Stock Purchase Agreement.
Article 8. Notices; Additional Documents;
Entire Agreement; Amendments
8.1 All notices, demands, requests, offers, consents, acceptances and
other communications which may be required or otherwise given pursuant to this
Agreement shall be in writing, sent by prepaid telegram or United State
certified mail, return receipt requested, postage prepaid, addressed as follows:
To Seller:
Cherry Grove, Inc.
Attention: Xxxxx X. Xxxxx, President Suite 16D
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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With a copy to:
Xxxxxx Xxxxxxxx, L.L.P.
Attention: Xxxxxx X. Xxxxxxx, Esq.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000-0000
With an additional copy to:
Tucci & Xxxxxxxxxx
Attention: Xxxxx X. Xxxxx, Esq.
Suite 000
Xxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
To Buyer:
BJIP, Inc.
x/x Xxxxxxx Xxxx Associates
Attention: Xxxxxxx X. Fourtieq
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx
Attention: Xxxxxx X. Xxxxxx, Xx., Esq.
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
or to such other address or addresses as a party hereto may notify the other
party hereto in the manner provided in this Section 8.1. All such communications
which shall be served upon the parties in the manner aforesaid shall be deemed
sufficiently served or given for all purposes hereunder, and shall be deemed to
have been served or given as of the time of the receipt thereof.
8.2 From and after the Closing Date upon request of Buyer, Seller shall
duly execute, acknowledge and deliver all such further documents as may be
reasonably required to convey to and vest in Buyer all right, in and to the
Purchased Assets intended to be assigned, transferred and conveyed pursuant this
Agreement.
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8.3 This Agreement, together with the Exhibits annexed hereto, and any
documents that may be delivered at the Closing in conjunction with the Stock
Purchase Agreement, contain all the agreements, representations, warranties and
covenants by the parties with respect to the transactions contemplated by the
parties with respect to the transactions contemplated by this Agreement. This
Agreement and the Stock Purchase Agreement constitute the entire agreement
between the parties and shall be deemed to supersede and cancel any other oral
or written agreement between the parties hereto relating to the transactions
herein contemplated.
8.4 This Agreement may be amended, extended or supplemented only by a
written instrument executed on behalf of each of the parties hereto; provided,
however, that any party may at any time and from time to time waive in writing
compliance by any other party with any provision hereof.
Article 9. Miscellaneous
9.1 Seller represents, warrants and covenants with Buyer, and Buyer
represents, warrants and covenants with Seller, that no brokerage fees or
commissions or finders' fees have been incurred by any of them or are payable
other than to Xxxxxx, Read & Co., Inc. to the best of their respective
knowledge, in connection with the transactions contemplated by this Agreement,
whose fee will be paid by XXXX Furniture, Inc.
9.2 This Agreement shall be binding upon, and inure to the benefit of,
and be enforceable by, each of the parties hereto and their respective
successors, but shall not be otherwise assignable
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by any party without the written consent of the others, except that Buyer may
assign this agreement to an Affiliate or Affiliates of Buyer.
9.3 This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
9.4 The headings of the Articles and Sections of this Agreement are for
convenience of reference only and are not to be used to interpret or construe
any provisions of this Agreement.
9.5 This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of Delaware without reference to the
conflict of laws provisions thereof.
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This Agreement is hereby executed and delivered on the date of the
latest execution set forth below.
CHERRY GROVE, INC.
-----------------------------------
Xxxxx X. Xxxxx, President
Date Signed:
BJIP, INC.
-----------------------------------
________________________, President
Date signed:
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