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EXHIBIT 10.1
PURCHASE AGREEMENT
This Agreement is made and entered into this 1st day of
September, 1995, effective as of July 31, 1995, by and among CKS PACKAGING,
INC., a Georgia corporation (the "PURCHASER"), CKS PLASTICS, INC., a Florida
corporation ("CKS PLASTICS"), RIGAL PLASTICS, INC., a Florida corporation (the
"SELLER"), and ATLANTIS PLASTICS, INC., a Florida corporation ("ATLANTIS").
Preliminary Statements:
A. The Seller is a subsidiary of Atlantis;
B. The Seller is the owner, beneficially and of record,
of a 50% interest in the profits, losses and capital (the "JOINT VENTURE
INTEREST") of CKS/Rigal Plastics (the "JOINT VENTURE"), a joint venture formed
by the Seller and the Purchaser, pursuant to that certain Joint Venture
Agreement, dated January 26, 1990, as amended (the "JOINT VENTURE AGREEMENT").
C. CKS Plastics is an Affiliate of the Purchaser and is
the owner, beneficially and of record, of a 50% interest in the profits, losses
and capital of the Joint Venture.
D. The Seller desires to sell the Joint Venture Interest
to the Purchaser, on the terms and subject to the conditions set forth in this
Agreement.
E. The Purchaser desires to purchase the Joint Venture
Interest, on the terms and subject to the conditions set forth in this
Agreement.
Agreement:
In consideration of the premises and the respective mutual agreements,
covenants, representations and warranties herein contained, the parties hereto
agree as follows:
ARTICLE 1
Definitions
1.1 Defined Terms. In addition to terms defined
elsewhere in this Agreement, the following terms when utilized in this
Agreement, unless the context otherwise requires, shall have the meanings
indicated, which meanings shall be equally applicable to both the singular and
plural forms of such terms:
"ADVERSE CONSEQUENCES" means liabilities, losses, damages or
claims, including court costs and reasonable attorneys' fees and expenses.
"AFFILIATE" with respect to any Person means any Person (a
"CONTROLLING
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PERSON") which, directly or indirectly, through one or more intermediaries,
controls the subject Person or any Person which is controlled by or is under
common control with a Controlling Person. For purposes of this definition,
"CONTROL" (including the correlative terms "CONTROLLING", "CONTROLLED BY" and
"UNDER COMMON CONTROL WITH"), with respect to any Person, means possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"AGREEMENT" means this Purchase Agreement together with all
exhibits and schedules contemplated hereby.
"ASSUMED OBLIGATIONS" is defined in Section 2.2.1 of this
Agreement.
"ATLANTIS" is defined in the preamble of this Agreement.
"AUTHORITY" means any federal, state or local governmental
regulatory agency, commission, bureau or authority.
"CKS PLASTICS" is defined in the preamble of this Agreement.
"CLOSING" is defined in Section 2.4 of this Agreement.
"CLOSING DATE" means the date of this Agreement; provided,
however, that the Closing shall be deemed effective as of July 31, 1995.
"CODE" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
"FINANCIAL STATEMENTS" is defined in Section 3.7 of this
Agreement.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"INDEMNIFIED PARTY" is defined in Section 6.2.3 of this
Agreement.
"INDEMNIFYING PARTY" is defined in Section 6.2.3 of this
Agreement.
"JOINT VENTURE" is defined in the Preliminary Statements to
this Agreement.
"JOINT VENTURE AGREEMENT" is defined in the Preliminary
Statements to this Agreement.
"JOINT VENTURE INTEREST" is defined in the Preliminary
Statements to this Agreement.
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"KNOWLEDGE", (a) when applied to the Seller or Atlantis means
the actual knowledge of the executive officers of Atlantis, and (b) when
applied to the Purchaser or CKS Plastics means the actual knowledge of the
executive officers of the Purchaser.
"LAW" means any law, statute, rule or regulation, and any
judgment or order of any court or Authority.
"LIEN" means any lien, charge, claim, restriction,
encumbrance, security interest or pledge of any kind whatsoever.
"MOST RECENT BALANCE SHEET" is defined in Section 3.7 of this
Agreement.
"PERSON" means any natural person, corporation, limited
liability company, unincorporated organization, partnership, association,
joint-stock company, joint venture, trust or government, or any agency or
political subdivision of any government.
"PURCHASE PRICE" is defined in Section 2.2 of this Agreement.
"PURCHASER" is defined in the preamble of this Agreement.
"REPRESENTATIVE" means, with respect to any Person, such
Person's officers, directors, partners, employees, agents, attorneys,
accountants, lenders or prospective lenders, affiliates and other
representatives.
"RETURN" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto.
"SELLER" is defined in the preamble of this Agreement.
"TAXES" means all federal, state, local and foreign taxes
(including, without limitation, income or profits taxes, premium taxes, excise
taxes, sales taxes, use taxes, gross receipts taxes, franchise taxes, ad
valorem taxes, severance taxes, capital levy taxes, transfer taxes, employment
and payroll-related taxes, property taxes, business license taxes, occupation
taxes, import duties and other governmental charges and assessments), of any
kind whatsoever, including interest, additions to tax and penalties with
respect thereto.
"THIRD PARTY CLAIM" is defined in Section 6.2.3 of this
Agreement.
1.2 Other Definitional Provisions.
1.2.1 Unless otherwise defined herein, all terms
defined in this Agreement shall have the defined meanings when used in any
certificate, report or other document made or delivered pursuant hereto.
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1.2.2 The words "HEREOF", "HEREIN", "HEREUNDER" and
"HERETO" and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE 2
Sale and Purchase of Joint Venture Interest
2.1 Sale and Purchase of Joint Venture Interest. The
Seller hereby sells, transfers, conveys and delivers to the Purchaser, and the
Purchaser hereby purchases and accepts delivery of the Joint Venture Interest
in exchange for the sum of $870,000 (the "PURCHASE PRICE"), paid this date by
wire transfer of immediately available funds to the Seller in accordance with
the wire transfer instructions set forth on Exhibit A hereto.
2.2 Assumption of Liabilities Under the Joint Venture
Agreement; Mutual Release.
2.2.1 The Purchaser and CKS Plastics, jointly and
severally, hereby assume and agree to satisfy and discharge as they become due
all liabilities, commitments or obligations of the Joint Venture of any nature,
whether absolute, accrued, contingent or otherwise (the "ASSUMED OBLIGATIONS").
The Assumed Obligations include, without limitation, (a) all abilities and
obligations of the Joint Venture in respect of indebtedness for borrowed money
or capitalized lease obligations or any other indebtedness secured by liens on
any of the properties or assets of the Joint Venture, (b) all liabilities and
obligations of the Joint Venture for the processing and delivery to the Joint
Venture's customers of outstanding customer orders as of the Closing Date, (c)
all liabilities and obligations of the Joint Venture under all of the leases of
real or personal property and all other contracts and agreements, written or
oral, (d) all employment and payroll-related obligations of the Joint Venture,
(e) all other current liabilities of the Joint Venture (including trade
accounts payable), (f) all liabilities of the Joint Venture for Taxes, and (g)
all liabilities and obligations of the Joint Venture under environmental health
and safety laws
2.2.2 The parties hereby agree that, except as set
forth in this Agreement, notwithstanding any provision of the Joint Venture
Agreement which may be to the contrary, none of the representations,
warranties, covenants or agreements of the parties contained therein shall
survive the Closing Date and neither the Purchaser, CKS Plastics or their
respective Affiliates, on the one hand, nor the Seller, or its Affiliates, on
the other hand, shall have any further liability or obligation to the other
thereunder or in connection therewith. Atlantis and the Purchaser further agree
that that certain Indemnification Agreement, dated January 31, 1990, between
Atlantis and the Purchaser is hereby terminated as of the Closing Date and that
neither Atlantis nor the Purchaser shall have any further liability or
obligation to the other thereunder or in connection therewith.
2.2.3 The Seller will be apportioned its share of
each item of income, expense, deduction and credit of the Joint Venture for the
taxable period beginning on January
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1, 1995 and ending on July 31, 1995 based on a closing of the books of the
Joint Venture as of the 11:59 p.m. (Eastern Standard Time) on such date. Such
portion of each item of income, expense, deduction and credit of the Joint
Venture for all taxable periods beginning at or after 12:00 a.m. on August 1,
1995 shall be apportioned to the Purchaser.
2.2.4 Subject to the provisions of Article 6
hereof, The Purchaser and CKS Plastics hereby release the Seller and Atlantis
(and, as applicable, their respective officers, directors, employees, agents,
subsidiaries, and Affiliates) of and from all manner of action, causes of
action, suits, debts, sums of money, covenants, contracts, agreements,
promises, damages, claims and demands whatsoever, in law or in equity, which
any of them ever had or now has or may have in the future for, upon or by
reason of any matter, cause or thing whatsoever arising out of or relating to
the business and operations of the Joint Venture.
2.2.5 Subject to the provisions of Article 6
hereof, The Seller and Atlantis hereby release the Purchaser and CKS Plastics
(and, as applicable, their respective officers, directors, employees, agents,
subsidiaries, and Affiliates) of and from all manner of action, causes of
action, suits, debts, sums of money, covenants, contracts, agreements,
promises, damages, claims and demands whatsoever, in law or in equity, which
any of them ever had or now has or may have in the future for, upon or by
reason of any matter, cause or thing whatsoever arising out of or relating to
the business and operations of the Joint Venture.
2.3 Closing. The closing of the transactions
contemplated by this Agreement (the "CLOSING") is taking place concurrently
with the execution hereof by the parties hereto at the offices of Atlantis in
Atlanta, Georgia on the Closing Date. Except as otherwise provided herein, all
proceedings taken and all documents executed at the Closing shall be deemed to
have been taken, delivered and executed simultaneously, and no proceeding shall
be deemed taken nor documents deemed executed or delivered until all have been
taken, delivered and executed.
2.4 Closing Deliveries.
2.4.1 The Seller has delivered to the Purchaser on
the date hereof, and the Purchaser hereby acknowledges receipt of, the
following:
(a) the resignation of the "Co-Chairman
Venturer Representative" (as such term is defined in the Joint Venture
Agreement) of the Seller;
(b) a certificate issued by the
Secretary of State of the State of Florida as to the good standing of
the Seller in such state;
(c) a certificate issued by the
Secretary of State of the State of Florida as to the good standing of
Atlantis in such state;
(d) a certificate of the Secretary or an
Assistant Secretary of the Seller as to the incumbency and signatures
of the officers of the Seller executing this
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Agreement; and
(e) a certificate of the Secretary or an
Assistant Secretary of Atlantis as to the incumbency and signatures of
the officers of the Seller executing this Agreement.
2.4.2 The Purchaser has delivered to the Seller on
the date hereof, and the Seller hereby acknowledges receipt of, the following:
(a) the sum of $87,500, by wire transfer
of immediately available funds in accordance with the wire transfer
instructions set forth on Exhibit A hereto, such amount representing
all unpaid compensation due and payable by the Joint Venture to the
Seller, pursuant to Section 7.03 of the Joint Venture Agreement, for
the period commencing January 1, 1995 and ending on July 31, 1995;
(c) a release duly executed by Bank
South, N.A., (i) unconditionally and irrevocably releasing Atlantis
from any and all liabilities and obligations arising under or with
respect to that certain Limited Guaranty Agreement, dated as of
January 19, 1994, executed by Atlantis in favor of Bank South, N.A.,
and (ii) unconditionally and irrevocably releasing the Seller from any
and all liabilities and obligations arising under or with respect to
that certain Loan Agreement, dated as of February 20, 1990, between
the Joint Venture and Bank South, N.A.;
(d) a certificate issued by the
Secretary of State of the State of Georgia as to the good standing of
the Purchaser in such state;
(e) a certificate issued by the
Secretary of State of the State of Florida as to the good standing of
CKS Plastics in such state;
(f) a certificate of the Secretary or an
Assistant Secretary of the Purchaser as to the incumbency and
signatures of the officers of the Purchaser executing this Agreement;
and
(g) a certificate of the Secretary or an
Assistant Secretary of CKS Plastics as to the incumbency and
signatures of the officers of CKS Plastics executing this Agreement.
ARTICLE 3
Representations and Warranties of the Purchaser and CKS Plastics
In order to induce the Seller and Atlantis to enter into this
Agreement and to consummate the transactions contemplated hereby, the Purchaser
and CKS Plastics, jointly and severally, hereby represent and warrant to the
Seller as follows:
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3.1 Organization and Standing. Each of the Purchaser and
CKS Plastics is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation. Each of the Purchaser
and CKS Plastics has all requisite corporate right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. Copies of the Articles of Incorporation and bylaws of the Purchaser and
CKS Plastics and all amendments thereto as in effect on the date hereof have
been delivered to the Seller and are complete and correct as of the date
hereof.
3.2 Authorization of Agreement. The execution, delivery
and performance of this Agreement by the Purchaser and CKS Plastics and the
consummation by each of them of the transactions contemplated hereby have been
duly and validly authorized by all requisite corporate action and this
Agreement constitutes the legal, valid and binding obligations of each of the
Purchaser and CKS Plastics, enforceable against them in accordance with its
terms, except as such enforceability may be limited by bankruptcy, moratorium,
fraudulent conveyance and other similar laws affecting creditors' rights
generally and by general principles of equity.
3.3 No Violation or Conflict. The execution and delivery
of this Agreement by the Purchaser and CKS Plastics and the consummation by
them of the transactions contemplated hereby, and compliance by them with the
provisions hereof, (i) does not and will not violate or conflict with any
provision of Law or any write, order or decree of any court or Authority, or
any term or provision of their respective Articles of Incorporation or bylaws,
and (ii) does not and will not, with or without the passage of time or the
giving of notice or both, result in the breach of, or constitute a default or
require any consent under, or result in the creation of any Lien upon any of
their respective properties or assets pursuant to, any instrument or agreement
to which either of them is a party or by which either of them or their
respective properties may be bound or affected.
3.4 Consent or Approval of Authorities. No consent,
approval or authorization of, or registration, qualification, designation,
declaration or filing with, any Authority is required in connection with the
execution, delivery of performance by the Purchaser or CKS Plastics of this
Agreement or any other agreement, instrument or document contemplated hereby or
thereby or the consummation by the Purchaser or CKS Plastics of the
transactions contemplated hereby or thereby.
3.5 Litigation. There are no actions, suits, claims or
proceedings pending or, to the Knowledge of the Purchaser and CKS Plastics,
threatened against or involving the Purchaser or CKS Plastics or any of their
respective assets or properties, before any court or arbitration tribunal or by
or before any Authority that question the validity of this Agreement or seek to
prohibit, enjoin or otherwise challenge the consummation of the transactions
contemplated hereby. There are no outstanding orders, judgments, injunctions,
stipulations, awards or decrees of any Authority, court or arbitration tribunal
against the Purchaser or CKS Plastics or any of their respective assets or
properties which prohibit or enjoin the consummation of the transactions
contemplated hereby.
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3.6 Brokers. Neither the Purchaser nor CKS Plastics has
employed any broker or finder and they have not incurred and will not incur any
broker's, finder's or similar fees, commissions or expenses payable by either
of them in connection with the transactions contemplated by this Agreement.
3.7 Financial Statements. The Purchaser and CKS Plastics
have delivered to the Seller copies of the Joint Venture's (a) unaudited
balance sheet (the "MOST RECENT BALANCE SHEET") and the related statements of
income, stockholders' equity and cash flow for the six months ended June 30,
1995, and (b) audited balance sheet and the related statements of income,
venturers' capital and cash flow for the year ended December 31, 1994. The
foregoing financial statements (collectively, the "FINANCIAL STATEMENTS") (i)
are complete and correct in all material respects and have been prepared in
accordance with the books and records of the Joint Venture, (b) present fairly
the financial condition of the Joint Venture and its results of operations as
at and for the respective periods then ended, and (c) have been prepared in
accordance with GAAP; provided, however, that the interim financial statements
are subject to normal year-end adjustments and lack footnotes and other
presentation items.
3.8 Undisclosed Liabilities. The Joint Venture does not have
any liabilities, commitments or obligations of any nature, whether absolute,
accrued, contingent or otherwise, other than (a) those reflected, reserved
against or disclosed in the Financial Statements and not heretofore paid or
discharged, (b) obligations for borrowed money and guarantees of obligations of
third parties not required by GAAP to be reflected, reserved against or
disclosed in the Interim GAAP Financial Statements, all of which are set forth
on Schedule 4.8 hereto, and (c) those incurred in the ordinary course of
business consistent with past practice since the date of the Most Recent
Balance Sheet.
3.9 Permits; Compliance With Law. No notice, citation,
summons or order has been received by the Joint Venture, no complaint has been
filed and served on it, no penalty has been assessed and, to the Knowledge of
the Purchaser and CKS Plastics, no investigation, proceeding or review is
pending or threatened (a) with respect to any alleged violation by the Joint
Venture of any Law or Permit, or (b) with respect to any alleged failure by the
Joint Venture to have any Permit.
3.10 Litigation. There are no actions, suits, claims or
proceedings pending or, to the Knowledge of the Purchaser and CKS Plastics,
threatened against or involving the Joint Venture, or any of its assets or
properties, before any court or arbitration tribunal or by or before any
Authority, or (b) question the validity of this Agreement or seek to prohibit,
enjoin or otherwise challenge the consummation of the transactions contemplated
hereby. There are no outstanding orders, judgments, injunctions, stipulations,
awards or decrees of any Authority, court or arbitration tribunal against the
Joint Venture, or any of its assets or properties which prohibit or enjoin the
consummation of the transactions contemplated hereby.
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3.11 Tax Matters.
3.11.1 All Tax Returns required to be filed with
respect to the business and assets of the Joint Venture have been duly and
timely (within any applicable extension periods) filed with the appropriate
governmental agencies in all jurisdictions in which such Returns are required
to be filed and all Taxes (including estimated Taxes) shown to be due and
payable on such Returns have been paid.
3.11.2 The unpaid Taxes of the Joint Venture (a) did
not, as of the date of the Most Recent Balance Sheet, exceed the reserve for
Tax liability (rather than any reserve for deferred Taxes established to
reflect timing differences between book and tax income) disclosed on the face
of the Most Recent Balance Sheet, and (b) do not exceed that reserve as
adjusted for the passage of time through the Closing Date in accordance with
the past custom of the Joint Venture.
3.11.3 There is no claim or assessment pending or,
to the Knowledge of the Purchaser and CKS Plastics, threatened against the
Joint Venture for any alleged deficiency in Taxes.
3.11.4 The Joint Venture has not (a) executed a
waiver or consent extending any statute of limitations for the assessment or
collection of any Taxes which remains outstanding, or (c) applied for a ruling
relating to Taxes.
3.11.5 No Tax Return of the Joint Venture has been
audited by any Tax Authority at any time since January 1, 1989.
3.12 No Other Representations or Warranties. Except for
the representations and warranties contained in this Article 3, neither the
Purchaser, CKS Plastics nor any other Person makes any other express or implied
representation or warranty on behalf of the Purchaser or CKS Plastics and the
Purchaser and CKS Plastics hereby disclaim any such representation or warranty,
whether by the Purchaser, CKS Plastics or any of their respective officers,
directors, employees, agents or Representatives or any other Person, with
respect to the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby, notwithstanding the delivery or
disclosure to the Seller or Atlantis or any of their respective officers,
directors, employees, agents or Representatives or any other Person of any
documentation or other information by the Purchaser, CKS Plastics or any of
their respective officers, directors, employees, agents or Representatives or
any other Person with respect to any one or more of the foregoing.
ARTICLE 4
Representations and Warranties of the Seller and Atlantis
In order to induce the Purchaser and CKS Plastics to enter
into this Agreement,
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and to consummate the transactions contemplated hereby, the Seller and
Atlantis, jointly and severally, hereby represent and warrant to the Purchaser
and CKS Plastics as follows:
4.1 Organization and Standing. Each of the Seller and
Atlantis is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida. Each of the Seller and Atlantis has all
requisite corporate right, power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. Copies of the Articles of
Incorporation and bylaws of the Seller and Atlantis, respectively, and all
amendments thereto as in effect on the date hereof have been delivered to the
Purchaser and CKS Plastics and are complete and correct as of the date hereof.
4.2 Ownership of Joint Venture Interest. The Seller owns,
beneficially and of record, and has the right to transfer to the Purchaser, the
Joint Venture Interest, free and clear of any Liens. At the Closing, the Seller
will transfer and convey, and the Purchaser will acquire, good, valid and
marketable title to the Joint Venture Interest, free and clear of all Liens.
4.3 Authorization of Agreement. The execution, delivery
and performance by the Seller and Atlantis of this Agreement and the
consummation by the Seller and Atlantis of the transactions contemplated hereby
have been duly and validly authorized by all requisite action and this
Agreement constitutes the legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforceability may be limited by bankruptcy, moratorium, fraudulent conveyance
and other similar laws affecting creditors' rights generally and by general
principles of equity.
4.4 No Violation or Conflict. The execution and delivery
of this Agreement by the Seller and Atlantis and the consummation by them of
the transactions contemplated hereby, and compliance by them with the
provisions hereof, (i) does not and will not violate or conflict with any
provision of Law or any writ, order or decree of any court or Authority, or any
term or provision of their respective Articles of Incorporation or bylaws, and
(ii) does not and will not, with or without the passage of time or the giving
of notice or both, result in the breach of, or constitute a default or require
any consent under, or result in the creation of any Lien upon any of their
respective properties or assets pursuant to, any instrument or agreement to
which either of them is a party or by which either of them or their respective
properties may be bound or affected.
4.5 Consent or Approval of Authorities. No consent,
approval or authorization of, or registration, qualification, designation,
declaration or filing with, any Authority is required in connection with the
execution, delivery of performance by the Seller or Atlantis of this Agreement,
or any other agreement, instrument or document contemplated hereby or the
consummation by the Seller or Atlantis of the transactions contemplated hereby
or thereby.
4.6 Litigation. There are no actions, suits, claims or
proceedings pending or, to the Knowledge of the Seller and Atlantis, threatened
against or involving the Seller or Atlantis or any of their respective assets
or properties, before any court or arbitration tribunal or by or
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before any Authority that question the validity of this Agreement or seek to
prohibit, enjoin or otherwise challenge the consummation of the transactions
contemplated hereby. There are no outstanding orders, judgments, injunctions,
stipulations, awards or decrees of any Authority, court or arbitration tribunal
against the Seller or Atlantis or any of their respective assets or properties
which prohibit or enjoin the consummation of the transactions contemplated
hereby.
4.7 Brokers. Neither the Seller nor Atlantis has
employed any broker or finder and they have not incurred and will not incur any
broker's, finder's or similar fees, commissions or expenses payable by either
of them in connection with the transactions contemplated by this Agreement.
4.8 Undisclosed Liabilities. Neither the Seller nor
Atlantis has taken any action to cause the Joint Venture to incur any
liabilities, commitments or obligations of any nature, whether absolute,
accrued, contingent or otherwise, other than those reflected, reserved against
or disclosed in the Financial Statements and not heretofore paid or discharged.
4.9 No Other Representations or Warranties. Except for
the representations and warranties contained in this Article 4, neither the
Seller, Atlantis nor any other Person makes any other express or implied
representation or warranty on behalf of the Seller or Atlantis, and the Seller
and Atlantis hereby disclaim any such representation or warranty, whether by
the Seller, Atlantis or any of their respective officers, directors, employees,
agents or Representatives or any other Person, with respect to the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby, notwithstanding the delivery or disclosure to the
Purchaser, CKS Plastics or any of their respective officers, directors,
employees, agents or Representatives or any other Person of any documentation
or other information by the Seller, Atlantis or any of their Respective
officers, directors, employees, agents or representatives or any other Person
with respect to any one or more of the foregoing.
ARTICLE 5
Certain Covenants and Agreements
5.1 Further Assurances. The parties hereto shall deliver
any and all other instruments or documents required to be delivered pursuant
to, or necessary or proper in order to give effect to, all of the terms and
provisions of this Agreement including, without limitation, all necessary
instruments of transfer as may be necessary or desirable to transfer ownership
of the Joint Venture Interest.
5.2 Publicity. No publicity release or announcement
concerning this Agreement or the transactions contemplated hereby shall be made
without advance approval thereof by the Purchaser and the Seller. The parties
hereto agree to cooperate in issuing any press release or other public
announcement concerning this Agreement or the transactions contemplated hereby.
Whenever practicable, each party shall furnish to the other party drafts of all
such press releases or announcements prior to their release. Nothing contained
herein shall prevent any party from
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at any time furnishing any information to any Authority or from making any
disclosures required under the Securities and Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, or under the rules and
regulations of any national securities exchange on which such party's shares of
capital stock are listed.
ARTICLE 6
Survival of Representations, Warranties and Covenants;
Indemnification
6.1 Survival of Representations, Warranties and Covenants.
6.1.1 The representations, warranties, covenants
and agreements of the Seller and Atlantis contained in this Agreement shall
survive the date of this Agreement, the Closing Date and the consummation of
the transactions contemplated by this Agreement until the expiration of the
applicable statutes of limitations.
6.1.2 The representations, warranties, covenants
and agreements of the Purchaser and CKS Plastics contained in this Agreement
shall survive the date of this Agreement, the Closing Date and the consummation
of the transactions contemplated by this Agreement until the expiration of the
applicable statutes of limitations.
6.1.3 To preserve any claim for breach of any such
warranty, representation, covenant or agreement, the party claiming a breach
shall be obligated to notify the party claimed to be in breach in writing of
any such breach, or facts that may give rise to such breach, before termination
of such warranty, representation, covenant or agreement; otherwise, such
party's claim for breach shall be forever barred.
6.2 Indemnification.
6.2.1 The Purchaser and CKS Plastics shall, jointly
and severally, indemnify and hold harmless the Seller, Atlantis and their
respective successors and assigns, from, against and in respect of any Adverse
Consequences they shall suffer through and after the date of the claim for
indemnification resulting from, arising out of, relating to or caused by (a)
any breach or violation of any of the representations or warranties of the
Purchaser or CKS Plastics contained in this Agreement, (b) the failure by the
Purchaser or CKS Plastics to comply with any of their respective covenants or
agreements contained in this Agreement, and (c) the Assumed Obligations.
6.2.2 The Seller and Atlantis shall, jointly and
severally, indemnify and hold harmless the Purchaser, CKS Plastics and their
respective successors and assigns from, against and in respect of, any Adverse
Consequences they shall suffer through and after the date of the claim for
indemnification resulting from, arising out of, relating to or caused by (a)
any breach or violation of any of the representations or warranties of the
Seller or Atlantis contained
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in this Agreement, or (b) the failure by the Seller or Atlantis to comply with
any of their respective covenants or agreements contained in this Agreement.
6.2.3 A party seeking indemnification pursuant to
this Section 6.2 (the "INDEMNIFIED PARTY") shall give prompt notice to the
party from whom such indemnification is sought (the "INDEMNIFYING PARTY") in
the event that any person not a party to this Agreement shall make any demand
or claim, or file or threaten to file any lawsuit (a "THIRD PARTY CLAIM"),
which Third Party Claim may cause liability to the Indemnifying Party pursuant
to the indemnification provisions of this Agreement. In any such event, the
Indemnifying Party shall have the right, exercisable by notice to the
Indemnified Party within 10 business days after notice by the Indemnified Party
to the Indemnifying Party of the commencement or assertion of such Third Party
Claim, to retain counsel (which counsel shall be reasonably acceptable to the
Indemnified Party) for the Indemnified Party, at the cost and expense of the
Indemnifying Party, to defend any such Third Party Claim. The Indemnified Party
shall be permitted to participate in the defense of such Third Party Claim at
its own expense. In the event that the Indemnifying Party shall fail to respond
within 30 days after receipt of notice from the Indemnified Party of the
commencement or assertion of any such Third Party Claim, then the Indemnified
Party shall retain counsel and conduct the defense of such Third Party Claim as
it may in its discretion deem proper, at the cost and expense of the
Indemnifying Party.
6.2.4 Unless and until the Indemnifying Party
assumes the defense of a Third Party Claim as provided in Section 6.2.3, the
Indemnified Party may defend against the Third Party Claim in any manner it may
reasonably deem appropriate.
6.2.5 The Indemnifying Party, if it shall have
assumed the defense of any Third Party Claim, shall not have the right to
consent to the entry of judgment with respect to, or otherwise settle such
Third Party Claim without the prior written consent of the Indemnified Party
(which consent shall not be unreasonably withheld), unless the judgment or
proposed settlement involves only the payment of money damages and does not
impose an injunction or other equitable relief upon the Indemnified Party.
6.2.6 The parties hereto shall cooperate in the
defense of any Third Party Claim and shall furnish such records, information
and testimony, and attend at such conferences, discovery proceedings, hearings,
trials and appeals as may be reasonably requested in connection therewith.
6.2.7 The parties shall make appropriate
adjustments for tax benefits and insurance coverage in determining Adverse
Consequences for purposes of this Section 6.2.
6.2.8 The remedies provided in this Article 6 shall
be exclusive and shall preclude assertion by the Seller, Atlantis, the
Purchaser or CKS Plastics of any other rights or the seeking of any other
remedies against the other.
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ARTICLE 7
Miscellaneous
7.1 Notices. Any notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and, except as otherwise specified in writing, shall be given by personally
delivery, facsimile transmission, Federal Express (or other similar courier
service) or by registered or certified mail, postage prepaid, return receipt
requested (a) if to the Purchaser or CKS Plastics, to the address for notices
set forth on the signature page hereto (with copies, as applicable, as set
forth on such signature page), and (b) if to the Seller or Atlantis, c/o
Atlantis Plastics, Inc., 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxx,
Xxxxxxx 00000, telecopier: (000) 000-0000, Attention: General Counsel, or to
such other addresses as any party hereto may from time to time give notice of
(complying as to delivery with the terms of this Section 7.1) to the other.
Notice by registered or certified mail shall be effective three days after
deposit in the United States mail. Notice by any other permitted means will be
effective upon receipt.
7.2 Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto and supersedes all prior agreements,
understandings, negotiations and discussions, both written and oral, among the
parties hereto with respect to the subject matter hereof. This Agreement may
not be modified in any way unless by a written instrument signed by each of the
parties hereto.
7.3 Benefits; Binding Effect; Assignment. This Agreement
shall be for the benefit of and binding upon the parties hereto, their
respective successors and assigns. No party may assign this Agreement or any of
its rights, interests or obligations hereunder without the prior approval of
the other party.
7.4 Waiver. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly so provided.
7.5 No Third Party Beneficiary. Nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any Person other than the parties hereto and their respective successors
and assigns any rights or remedies under or by reason of this Agreement.
7.6 Expenses. All legal, accounting and other costs and
expenses incurred in connection with this Agreement and any of the transactions
contemplated hereby on behalf of the Purchaser and CKS Plastics shall be borne
and paid by them, and all such costs and expenses incurred on behalf of the
Seller and Atlantis shall be borne and paid by them, and no party shall be
obligated for any cost or expense incurred by any other party unless this
Agreement expressly so provides.
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7.7 Section Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not
affect the meaning or interpretation of any provisions of this Agreement.
7.8 Counterparts. This Agreement may be executed in any
number of counterparts and by the several parties hereto in separate
counterparts, each of which shall be deemed to be one and the same instrument.
7.9 Litigation; Prevailing Party. In the event of any
litigation with regard to this Agreement, the prevailing party shall be
entitled to receive from the non-prevailing party and the non-prevailing party
shall pay all reasonable fees and expenses of counsel for the prevailing party.
7.10 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Florida.
IN WITNESS WHEREOF, the parties hereto have each executed and
delivered this Agreement as of the day and year first above written.
RIGAL PLASTICS, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx
President
ATLANTIS PLASTICS, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx
President and
Chief Executive Officer
CKS PACKAGING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
President and
Chief Executive Officer
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CKS PLASTICS, INC.
By: /s/ Xxxxxxx X Xxxxxx
--------------------
Xxxxxxx X. Xxxxxx
President and
Chief Executive Officer
ADDRESS FOR NOTICES FOR PURCHASER AND CKS
PLASTICS:
0000 Xxxxxx Xxxxx, X.X.
P.O. Box 44386
Xxxxxxx, Xxxxxxx 00000
COPIES OF NOTICES TO:
Xxxxxxx X. Xxxxx, Xx., Esq.
000 X. Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Telecopier: (000) 000-0000
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EXHIBIT A
TO
PURCHASE AGREEMENT
Seller Wire Instructions:
First National Bank of Chicago
Xxxxxxx, XX 00000
ABA# 000000000
Cr: Xxxxxx Financial, Inc./CFG
Account # 0000000
Client Name: Atlantis Plastics
Client # 4494
Attn: CFG/Portfolio Organization
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SCHEDULE 4.8
TO
PURCHASE AGREEMENT
Undisclosed Liabilities
None.
