Exhibit 2(b)
BLANKET ASSIGNMENT, XXXX OF SALE, DEED AND
ASSUMPTION AGREEMENT
This BLANKET ASSIGNMENT, XXXX OF SALE, DEED AND ASSUMPTION AGREEMENT,
dated as of February 28, 1997, ("Assignment and Assumption Agreement") by and
among Seafield Capital Corporation, a Missouri corporation ("Seafield") and SLH
Corporation, a newly formed Kansas corporation which is a wholly owned
subsidiary of Seafield ("SLH").
RECITALS
A. The Boards of Directors of Seafield and SLH have determined that it
is in the best interests of the shareholders of Seafield: (1) to transfer to SLH
substantially all of Seafield's assets (the "Transfer Assets") other than its
holdings (including any capital stock and debt) of LabOne, Inc. ("Lab") and
Response Oncology, Inc. ("Response") and certain other assets (the "Retained
Assets" as more particularly defined below) and certain liabilities (the
"Transfer Liabilities") and (2) to distribute to the holders of the issued and
outstanding shares of common stock, par value $1 per share, of Seafield all of
the issued and outstanding shares of common stock, par value $0.01 per share, of
SLH (the "Distribution") in accordance with Article II of a DISTRIBUTION
AGREEMENT dated as of December 20, 1996 ("Distribution Agreement").
B. Pursuant to Section 1.02 of the Distribution Agreement Seafield and
SLH are required to take all action necessary to transfer to SLH, and to cause
SLH to assume, as the case may be, effective as of the Distribution Date, (1)
all of the Transfer Assets and (2) all of the Transfer Liabilities. This
agreement is intended to effect such transfers and assumptions, subject to the
terms of the Distribution Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and intending to be legally bound thereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1. Definitions and Terms. Except as otherwise provided herein, the
capitalized terms in this agreement shall have the same meaning as those terms
are defined to have in the Distribution Agreement.
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ARTICLE II
TRANSFER OF TRANSFER ASSETS
2.1 Contribution and Transfer. KNOW ALL MEN BY THESE PRESENTS: for good
and valuable consideration, the receipt of which is hereby acknowledged,
Seafield, subject to the terms hereof, has contributed, granted, conveyed,
transferred, assigned, and set over, and does by these presents grant, convey,
transfer, assign and set over to SLH all of its right, title and interest in
those assets held by Seafield in the name of or for the exclusive benefit of the
SLH Business (the "SLH Assets") other than the assets listed in Section 2.2
hereof (the "Retained Assets," with the SLH Assets other than the Retained
Assets being hereinafter referred to as the "Transfer Assets"), TO HAVE AND TO
HOLD the same unto SLH, its successors and assigns, forever. Without limiting
the foregoing, the Transfer Assets expressly include all Transfer Assets
reflected on Seafield's books and records as being allocated for the exclusive
use or consumption by the SLH Business, including, without limitation, the
Transfer Assets reflected on the September 30, 1996, unaudited Pro Forma
Combined Balance Sheet included in the SLH Form 10 under the Securities and
Exchange Commission dated December 21, 1996, as amended (the "Balance Sheet" and
the "Form 10") as well as those acquired by the SLH Business since September 30,
1996, less those disposed of since September 30, 1996. Without limiting the
foregoing, the Transfer Assets include the following:
2.11 SLH Subsidiaries. All of the issued and outstanding shares of the
capital stock of the following Seafield subsidiaries, which together with the
indirectly owned subsidiaries of such Seafield subsidiaries constitute the SLH
Subsidiaries as defined in the Distribution Agreement:
a. BMA Resources, Inc. ("Resources"), which owns, among other
things (i) 5,950,000 shares of the issued and outstanding
shares of common stock of Syntroleum Corporation and (ii)
interests in the following oil and gas general partnerships:
Bundy, Bentel, Westgate and Xxxxxxxx.
b. Scout Development Corporation ("Scout"), which owns, among
other things (i) Scout Development Corporation of New Mexico
("Scout NM"), and (ii) Carousel Apartment Homes, Inc.
("Carousel"); and
x. Xxxxxxxxx Associates, Inc. ("Xxxxxxxxx"),together with any
accounts receivable and other assets that may have been
retained by Seafield in connection with the sale of
Xxxxxxxxx'x business and assets.
2.12 SLH Investments. The following Securities held by Seafield which are
hereinafter referred to as the SLH Investments:
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a. Securities issued by Norian Corporation, a California
corporation consisting of 181,250 shares of convertible
preferred stock, no par value;
b. Securities issued by: (i) First Century Partnership III, a
limited partnership consisting of a 3.7% capital interest;
(ii) First Century Partnership II, a limited partnership;
(iii) New Enterprise Associates II, L.P. a limited
partnership;
c. Securities issued by Oclassen Pharmaceuticals, Inc. a
Delaware corporation consisting of 500,000 shares of common
stock;
d. Cash and short term investments in the face amount of
$6,850,000;
e. Contract rights formerly relating to or arising out of
Xxxxxxxxx Associates, Inc. and its stockholders, including
all rights of Seafield in and to payments and other
consideration required to be made by Ernst & Young U.S. LLP
("E&Y") pursuant to that certain Asset Purchase Agreement
dated May 31, 1995 (the "E&Y Agreement) and any rights
arising out of that certain Agreement of Purchase and Sale
of Assets dated as of July 10, 1995 between Seafield and
Xxxxx X. Xxxxxxxxx (the "WAT Agreement") and all accounts
and notes receivable by Seafield with respect to the sale of
Xxxxxxxxx Associates, Inc. assets and the liquidation of
Xxxxxxxxx; and
f. Treasury notes or similar instruments pledged by Seafield in
the approximate amount of $3.0 million to secure payment of
a certain Xxxxxxxx letter of credit.
2.13 Information and Records. All books, records and information recorded
on any form of media, including paper, magnetic disks, computer drives,
microfiche or other form of information storage equipment or materials owned by
Seafield and used exclusively by the SLH Business.
2.14 Accounts and Notes Receivable. All payments of currency receivable by
Seafield upon accounts generated with respect to the SLH Business and upon
notes, leases, refunds and other evidences of indebtedness or reimbursements
arising out of transactions between the SLH Business and persons or entities
other than Seafield (hereinafter "Third Parties"), including any receivables
reflected on the Balance Sheet and now owned by Seafield.
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2.15 Contracts and Agreements. All of Seafield's right, title and interest
in all contracts and agreements between Seafield and any Third Party made by or
for the exclusive benefit of the SLH Business, other than such rights and
interests in contracts and agreements included among the Retained Assets (the
"Contract Rights," and "Contracts," respectively with the excluded rights and
interests hereinafter referred to as the "Retained Contract Rights" and
"Retained Contracts," respectively) including, without limitation the following:
2.151Real estate leases consisting of (i) the lease for the
space occupied by Seafield at 0000 Xxxxx Xxxxxxxxx , Xxxxx
000, Xxxxxx Xxxx, Xxxxxxxx (the "Seafield Offices") and (ii)
the Xxxxxxxxx leases;
2.152Equipment leases with respect to any items of equipment
located at the Seafield Offices on the Distribution Date;
2.153Insurance and indemnity contracts and policies to the
extent set forth under Article VIII of the Distribution
Agreement;
2.154SLH Business orders for the purchase of goods and or
services from Third Parties;
2.155Employee benefit plans and arrangements for the benefit of
employees who on the Distribution Date are employed by and
are on the payroll of the SLH or any SLH Subsidiary (the
"SLH Employees");
2.156Any SLH Support Agreement as defined in the Distribution
Agreement including the pledge by Seafield of the Xxxxxxxx
cash and short term securities; and
2.157 The E&Y Agreement and the WAT Agreement.
2.16 Claims, Suits and Choses in Action. All asserted and unasserted
claims, suits, and choses in action now owned by Seafield and arising out of the
business and operations of the SLH Business or relating to any of the Transfer
Assets (the "Claims") including without limitation, the following:
a. Any Seafield claim for tax refunds or off sets arising out
of losses recognized or recognizable by Seafield with
respect to the disposition prior to the Distribution Date of
any assets of the SLH Business, or which is usable by
Seafield as an off set against or a reduction of any tax
liability which is included in the Transfer Liabilities; and
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b. The action described in the second paragraph of Item 3 of
the Seafield report on Form 10-K for the fiscal year ended
December 31, 1995 (the "Seafield 10-K") (BMA x. Xxxxxxxx,
Xxxxxx & Xxxxxxx).
2.17 Permits and Licenses. All permits and licenses held by Seafield for
the exclusive benefit of the SLH Business to the extent that such permits and
licenses may be legally transferrable (The "Permits").
2.2 Retained Assets. Notwithstanding the foregoing, the following Retained
Assets shall not be deemed to be within the Transfer Assets and shall not be
contributed or otherwise transferred to SLH hereunder:
2.21 Retained Information and Records. All books, records and information
recorded on any form of media, including paper, magnetic disks, computer drives,
microfiche or other form of information storage equipment or materials owned by
Seafield and including information or data relating to or for the benefit of the
SLH Business as well as businesses other than the SLH Business (the "Joint
Records"). SLH shall be permitted access to the Joint Records at Seafield's
discretion and on an otherwise mutually agreeable basis.
2.22 Retained Accounts and Notes Receivable. All of the following Retained
Accounts Receivable: All intracompany accounts receivable by the SLH Business
from Seafield other than the following accounts: X' Xxxxx Note receivable.
2.23 Retained Contracts and Contract Rights. All of the following
Retained Contracts and Retained Contract Rights:
2.231All contract rights to be retained by Seafield or any
member of the Seafield Group under Article VI and VIII
of the Distribution Agreement.
2.24 Assets Subject to Restrictions on Transfer. The Retained
Assets shall include, subject to the terms hereof, any asset
otherwise included in the above description of the Transfer
Assets which is subject to a restriction on transfer or
otherwise requires the consent of a third party prior to
transfer and with respect to which the restriction has not
been removed or a consent has not been obtained as of the
Distribution Date. Subsequent to the Distribution Date
Seafield and SLH shall use reasonable efforts to remove any
such restriction or to obtain such consent and upon the
removal of such restriction or the receipt of such consent
such asset shall become a Contributed Asset, deemed by the
parties to have been contributed at and as of the
Distribution Date. Upon such occurrence Seafield and SLH
shall execute such further instruments of transfer necessary
to complete the legal transfer of such Contributed Asset,
dated as of the Distribution Date if permissible. Pending
removal of such restriction and receipt of any such required
consent, Seafield shall arrange for SLH
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to enjoy the benefits of such Asset to the extent legally
permissible and SLH shall provide Seafield with the
resources necessary for Seafield to continue to satisfy
SLH's obligations with respect to such asset.
2.25 Other Retained Assets. All of the following other assets held by
Seafield in the name of or for the exclusive benefit of the SLH Business: None
other than an Accra Legend automobile used by X.X. Xxxxx XX, a whale sculpture
in the Seafield Board Room and a fish tank in the offices of X.X. Xxxxx XX.
ARTICLE III
ASSUMPTION OF TRANSFER LIABILITIES
3.1 Liabilities Assumed by SLH. SLH hereby unconditionally assumes and
agrees to discharge and perform in accordance with their terms all of the
obligations, liabilities and duties of Seafield arising out of its operation of
the SLH Business and its ownership, use or operation of the Transfer Assets
other than such Retained liabilities and obligations that are enumerated in
Section 3.2 (the "Transfer Liabilities," with such Retained liabilities and
obligations hereinafter referred to as the "Retained Liabilities"), including
without limitation the following Transfer Liabilities:
3.11 Balance Sheet Liabilities. All of Seafield's liabilities relating to
the SLH Business which are referred to or which are reflected on the Balance
Sheet as well as such liabilities which have been incurred by the SLH Business
since September 30, 1996, other than such liabilities included in the Retained
Liabilities (the "Balance Sheet Liabilities" with the such Retained balance
sheet liabilities hereinafter referred to as the "Retained Balance Sheet
Liabilities").
3.12 Liabilities to SLH Employees. All of Seafield's liabilities to SLH
Employees, including, without limitation, all Seafield's obligations under and
pursuant to any SLH collective bargaining, union benefit, salary, bonus,
employee welfare, pension, retirement, vacation pay, disability, accident and
health insurance, life insurance, profit sharing, severance pay or other benefit
plan other than such liabilities and obligations included in the Retained
Liabilities (the "Employee Liabilities" with the such other employee liabilities
hereinafter referred to as the "Retained Employee Liabilities").
3.121 Employment of SLH Employees. At the Distribution Date,
(a) all of the following individuals who were prior to the
Distribution Date employees of Seafield shall become the
employees of SLH, with their employment continuing on the same
terms and conditions as in effect immediately prior to the
Distribution Date, subject to the rights of each such employee to
decline such employment with SLH: All persons full time employed
by an SLH Subsidiary, but not including P. Xxxxxxx Xxxxxx, Xxxxx
X. Xxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxx XxXxx, D. Xxxx Xxxxxxxx,
Xxxx Xxxx, Xxxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxxxxxx, Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxxx or Xxxxx Xxxxxxx; and (b)
all
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SLH Employees who were immediately prior to the Distribution
Date employees of SLH or of any SLH Subsidiary shall
continue as employees of SLH or such subsidiary of SLH, as
the case may be, with their employment continuing on the
same terms and conditions as in effect immediately prior to
the Distribution Date. In no event shall there be deemed to
be any separation from service or termination of employment
with respect to any of the SLH Employees for any purpose on
account of the transfer of assets and liabilities relating
to the SLH Business contemplated hereby.
3.13 Contract Liabilities. All of Seafield's liabilities and obligations
under the contracts and agreements included in the Transfer Assets, including
those specified in Section 2.15.
3.14 Liabilities Relating to Certain Tax Claims. Without limiting the
foregoing, the Transfer Liabilities shall include any and all liability of
Seafield to the IRS or any state or local taxing authority with respect to any
matter relating to or arising out of any proposed adjustments by the IRS as
described under "Legal Matters" in the Information Statement that is a part of
the Form 10 (the "Information Statement") as well as any other matters to be
assumed by SLH as set forth in the Tax Sharing Agreement.
3.15 Transfer and Distribution Tax Liabilities. Without limiting the
foregoing, the Transfer Liabilities shall include Tax liabilities only to the
extent provided in Section 3.14 and as provided in the Tax Sharing Agreement.
3.16 Other Liabilities. All other liabilities and obligations of Seafield
arising out of or relating to any of the Transfer Assets other than such
liabilities and obligations included in the Retained Liabilities (the "Other
Liabilities" with the such other Retained liabilities hereinafter referred to as
the "Other Retained Liabilities").
3.2 Retained Liabilities. Notwithstanding the foregoing, the following
Retained Liabilities shall not be deemed to be within the Transfer Liabilities
and shall not be assumed by SLH hereunder:
3.21 Retained Employee Liabilities. Retained Employee
Liabilities consisting of all of Seafield's obligations (a) with respect to the
following Seafield employees: P. Xxxxxxx Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxxxxx, Xxxxx XxXxx, D. Xxxx Xxxxxxxx, Xxxx Xxxx, Xxxxx Xxxxx, Xxxxx Xxxxx,
Xxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxxx or Xxxxx Xxxxxxx;
(b) under Retained Liabilities identified in Article VI of the Distribution
Agreement, and (c ) arising under employee benefit plans that are not for the
exclusive benefit of the SLH Employees but that cover the employees of Seafield
and/or of its subsidiaries in addition to the SLH Employees such as stock option
or award plans relating to securities issued or issuable by Seafield, umbrella
employee benefit or welfare plans such as the 401-K Plan, to the extent such
obligations relate to employees other than the SLH Employees and to the extent
that such obligations are excluded from the Transfer Liabilities under the
Distribution Agreement.
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3.22 Transfer and Distribution Tax Costs and Expenses. Without
limiting the foregoing, the Transfer Liabilities shall not include any expense
or liability (other than Tax Liabilities under Section 3.14) incurred by
Seafield with respect to (a) the transfer of the Transfer Assets and the
assumption of the Transfer Liabilities hereunder and (b) the distribution of the
SLH Common Stock to the Seafield shareholders under the Distribution Agreement.
3.24 Retained Other Liabilities. All of the following Retained Other
Liabilities: None.
3.3 No Other Liabilities Assumed. Anything in this Agreement to the
contrary notwithstanding, SLH shall not assume, or shall be deemed to have
assumed, any debt, claim, obligation or other liability of Seafield or any of
Seafield's subsidiaries or other affiliates whatsoever other than as
specifically set forth in this Article III.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES, INDEMNIFICATION AND
ACCESS TO INFORMATION
4.1 Representations and Warranties. Except as otherwise provided
herein, Seafield makes no representations or warranties with respect to the
Transfer Assets, the Transfer Liabilities or the accuracy or completeness of the
Balance Sheet and SLH understands that it is accepting the Transfer Assets "AS
IS AND WITH ALL FAULTS" and assuming the Transfer Liabilities without any
limitation.
4.2 Indemnification. Obligations of the parties with respect to
indemnification are provided for under Article III of the Distribution
Agreement.
4.3 Access to Information. Obligations of the parties with respect to
access to Information are provided for under Article V of the Distribution
Agreement.
4.4 Restriction On Payment of Dividends and Redemption of Stock. As further
assurance for its obligations hereunder, SLH agrees that until the second
anniversary of this agreement SLH shall not distribute property to its
stockholders with respect to its outstanding stock as a dividend or redeem any
of its capital stock without the prior written consent of the Seafield Board.
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ARTICLE V
MISCELLANEOUS AND
CERTAIN ADDITIONAL COVENANTS OF SEAFIELD AND SLH
5.1 Taxes. Subject to the specific terms of the Tax Sharing Agreement,
Seafield shall pay all sales, use, stamp, transfer, service, recording, real
estate and like taxes or fees, if any, imposed by the United States or any state
or political subdivision thereof on Seafield and or SLH, required to be paid in
connection with the transfer and assignment of the Transfer Assets, if any and
in connection with the Distribution; provided, however, neither SLH nor Seafield
shall be responsible for or obligated with respect to any taxes required to be
recognized by any Seafield shareholder or SLH stockholder arising out of or in
connection with the distribution of the SLH Common Stock in the Distribution.
5.2 Amendment. This Agreement may be amended, modified or supplemented in a
writing signed by Seafield and SLH.
5.3 Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.4 Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Missouri.
5.5 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
5.6 No Third Party Beneficiaries. Except as otherwise indicated herein,
this Agreement is solely for the benefit of the parties hereto and no provision
of this Agreement shall be deemed to confer upon third parties any remedy,
claim, liability, reimbursement, claim of action or other right in excess of the
specific rights granted hereunder.
5.7 Conveyances and Further Assurances. The transfer of the Transfer Assets
hereunder shall be further evidenced by the delivery by Seafield to SLH of stock
certificates together with duly executed instruments of assignment separate from
certificates, deeds, bills of sale, properly endorsed certificates of title and
other specific conveyances requested by SLH. The assumption by SLH of the
Transfer Liabilities shall be further evidenced by the delivery by SLH to
Seafield of such other instruments as Seafield may reasonably request and as may
otherwise be required by this Agreement, the Distribution Agreement and the
Other Agreements. In addition, upon the reasonable request of any of party to
this Agreement, the other party will on and after the Distribution Date execute
and deliver to the requesting party such other documents, releases, assignments
and other instruments as may be required to effectuate completely the
transactions contemplated by this Agreement.
5.8. Notices. All notices, requests, claims, demands and other
communications
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hereunder (collectively, "Notices") shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
cable, telegram, telex or other standard form of telecommunications, or by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to Seafield:
Seafield Capital Corporation
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
If to SLH:
SLH Corporation
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
or to such other address as any party hereto may have furnished to the other
parties by a notice in writing in accordance with this Section 9.05. Copies of
all notices, requests, claims, demands and other communications hereunder shall
also be given to:
Xxxxxxx & Xxxx X.X.
0000 Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
5.9 Entire Understanding. This Agreement sets forth the entire
agreement and understanding of the parties hereto in respect to the transactions
contemplated hereby and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof.
5.10 Written Consent of Sole Stockholder. Seafield owns all of the
issued and outstanding capital stock of SLH, consisting of 100 shares of $0.001
par value Common Stock. The officer of Seafield executing this Agreement has
been duly authorized by the Board of Directors of Seafield, consistent with its
Articles of Incorporation and Bylaws, to vote such stock and execute written
consents of the holders of such stock, and his execution of this Agreement shall
constitute the written consent of the Sole Stockholder of SLH to this
transaction.
5.11 Approval of Seafield's and SLH's Boards of Directors. Consistent with
and in accordance with the Certificates of Incorporation and Bylaws of Seafield
and SLH, the
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Boards of Directors of Seafield and SLH have authorized and approved of this
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered on the date first above written.
SEAFIELD CAPITAL CORPORATION
Attest:
s/Xxxxxx X. Xxxxxxxxx s/P. Xxxxxxx Xxxxxx
_______________________ By: ________________________________
Xxxxxx X. Xxxxxxxxx P. Xxxxxxx Xxxxxx, CFA
Secretary President
SLH CORPORATION
Attest:
s/Xxxxxx X. Xxxxxxxxx s/Xxxxx X. Xxxxxx
_______________________ By: ________________________________
Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx, CFA
Secretary President
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ACKNOWLEDGMENTS
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
BE IT REMEMBERED, that on this 28th day of february, 1997, before me,
the undersigned, a notary public in and for said state, came P. Xxxxxxx Xxxxxx,
CFA, President and Xxxxxx X. Xxxxxxxxx, Secretary, respectively of Seafield
Capital Corporation, a Missouri corporation, to me personally known to be such
officers and the same persons who executed as such officers the foregoing
instrument on behalf of said corporation, and such persons duly acknowledged the
execution of the same to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above mentioned.
s/Xxxxx Xx Xxxxx
-------------------------
Notary Public in and for said
County and State
My commission expires:
Jan.12, 0000
XXXXX XX XXXXXXXX )
) ss.
COUNTY OF XXXXXXX )
BE IT REMEMBERED, that on this 28th day of February, 1997, before me,
the undersigned, a notary public in and for said state, came Xxxxx X. Xxxxxx,
CFA, President and Xxxxxx X. Xxxxxxxxx, Secretary, respectively of SLH
Corporation, a Kansas corporation, to me personally known to be such officers
and the same persons who executed as such officers the foregoing instrument on
behalf of said corporation, and such persons duly acknowledged the execution of
the same to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above mentioned.
s/Xxxxx Jo. Blake
-------------------------
Notary Public in and for said
County and State
My commission expires:
Jan. 12, 1999
