EXHIBIT 2(i)
PLAN OF PURCHASE AGREEMENTS
AGREEMENT TO FORM LIMITED LIABILITY COMPANY
THIS AGREEMENT TO FORM LIMITED LIABILITY COMPANY (this "AGREEMENT") is
made and entered into as of August 31, 2000 by and among Universal Mfg. Co.
("UFMG"), a Nebraska corporation, Universal Distribution LLC ("UNIVERSAL"), a
Nebraska limited liability company and subsidiary of Universal Mfg. Co., Rainbo
Oil Company, an Iowa corporation ("RAINBO") and Xxxx Xxxxx ("XXXXX"), an
individual, and President and majority shareholder of Rainbo.
Subject to the terms and conditions of this Agreement, the parties
intend to organize a Nebraska limited liability company to be known as Rainbo
Company, LLC d/b/a Value Independent Parts (the "COMPANY").
The parties intend that the Company be formed for the purpose of
operating the automobile parts distribution business currently operated by
Rainbo as an unincorporated internal business division (the "VIP DIVISION").
In consideration of the foregoing recitals and the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
ARTICLE I
FORMATION OF LLC
SECTION 1.1 FORMATION OF THE COMPANY. Subject to the terms and
conditions of this Agreement, the parties will organize the Company as a
Nebraska limited liability company by the filing of Articles of Organization
with the Office of the Secretary of State of Nebraska in the form attached to
this Agreement as Exhibit A and the parties will execute the Company Operating
Agreement (the "OPERATING AGREEMENT") in the form attached to this Agreement as
Exhibit B, with such changes to said Exhibits A and B as the parties agree to in
writing.
SECTION 1.2 SUBSCRIPTION AND LOAN BY UNIVERSAL. Universal agrees to
make an Initial Capital Contribution to the Company payable on the Closing Date
(as defined below) in the amount of $100,000 cash in exchange for 100,000
Membership Units, constituting 50% of the authorized Membership Units. Universal
further agrees to loan the Company $400,000 in exchange for the Company's
execution of the Term Note (the "UNIVERSAL NOTE") in the form attached to this
Agreement as Exhibit C, with such changes to said Exhibit C as the parties to
the Universal Note agree to in writing.
SECTION 1.3 SUBSCRIPTION AND LOAN BY RAINBO. Rainbo agrees to make an
Initial Capital Contribution to the Company payable on the Closing Date (as
defined below) in the amount of $100,000 cash in exchange for 100,000 Membership
Units, constituting 50% of the authorized Membership Units. Rainbo further
agrees to loan the Company $400,000 in exchange for the Company's execution of
the Term Note (the "RAINBO NOTE") in the form attached to this Agreement as
Exhibit D, with such changes to said Exhibit D as the parties to the Rainbo Note
agree to in writing.
ARTICLE II
CLOSING DATE
SECTION 2.1 CLOSING DATE. Subject to the terms and conditions of this
Agreement, the execution of the Operating Agreement and all agreements attached
thereto shall take place at the offices of Rainbo, 0000 Xxxxxx Xxxxxxxxx,
Xxxxxxx, Xxxx, xx September 29, 2000 at 10:00 a.m. or such other time, date and
place as the parties shall agree in writing (the "CLOSING DATE").
ARTICLE III
CONDITIONS
SECTION 3.1 UNIVERSAL'S AND UFMG'S CONDITIONS PRECEDENT TO CLOSING. The
obligations of Universal and UFMG to execute the Operating Agreement, to make
its Initial Capital Contribution thereunder and to make the
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Universal Loan are subject to the fulfillment, at or prior to the Closing Date,
of the following conditions, any of which may be waived in writing, in whole or
in part, by Universal or UFMG:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Rainbo and Xxxxx contained in this Agreement shall be in all
material respects true and accurate as of the date of this Agreement and, except
for changes expressly contemplated by this Agreement, at and as of the Closing
Date as if made at and as of such date.
(b) PERFORMANCE. Rainbo and Xxxxx shall have performed and
complied in all material respects with all covenants, agreements and conditions
contained in this Agreement required to be performed or complied with by them
prior to or at the Closing Date.
(c) ABSENCE OF LITIGATION. No suit, action, proceeding or
investigation shall be pending or threatened which seeks to prevent or delay the
consummation of the transactions contemplated by this Agreement.
(d) ASSET PURCHASE AGREEMENT. Rainbo and Xxxxx shall have entered
into the Asset Purchase Agreement (the "PURCHASE AGREEMENT") substantially in
the form attached hereto as Exhibit E and shall simultaneously close the
transaction contemplated therein, and on the Closing Date, Rainbo shall transfer
to the Company pursuant to the Purchase Agreement all of the assets and
properties held in connection with, necessary for, or material to the business
and operation of the VIP Division owned by Rainbo, free and clear of all liens,
claims and encumbrances.
(e) AC-DELCO CONSENT. AC Delco, General Motors Corporation, a
Delaware corporation ("DELCO") shall have consented, in writing, to the
formation of the Company and the transfer of the AC-Delco Warehouse Distributor
Supply Agreement from Rainbo to the Company.
(f) CONSENTS AND WAIVERS. Rainbo and Xxxxx shall have obtained any
and all other approvals, licenses, consents, permits and waivers, and made any
and all filings necessary or appropriate for the Company to engage in business
as contemplated by this Agreement, including, without limitation, the consent of
Ford Motor Company.
(g) FINANCING. Universal and UFMG shall have received financing
for the purchase of the Purchased Assets (as defined below) on terms and
conditions reasonably acceptable to Universal and UFMG.
(h) PRESIDENT. Xxxxx shall have agreed to assume the position as
President of the Company.
(i) LEASE AGREEMENTS. Rainbo shall have agreed to lease to the
Company the properties listed on SCHEDULE 3.1(i) attached hereto on mutually
agreed on terms and the parties shall have entered into lease agreements in a
form satisfactory to Universal, UFMG and Rainbo.
(j) MANAGEMENT AGREEMENT. On or before the Closing Date, the
Company and UFMG shall enter into a Management Agreement in the form attached
hereto as Exhibit F.
(k) EMPLOYMENT AGREEMENT. On or before the Closing Date, Universal
or UFMG and each of the VIP Division employees identified on SCHEDULE 3.1(k)
(the "KEY EMPLOYEES") attached hereto shall enter into mutually agreed upon
employment arrangements.
(l) EMPLOYEE LEASING AGREEMENT. On or before the Closing Date, the
Company shall enter into an Employee Leasing Agreement with Universal or UFMG in
a form satisfactory to Universal or UFMG and Rainbo.
(m) DUE DILIGENCE INVESTIGATION. Universal and UFMG shall be
satisfied, in its sole and absolute discretion, with the results of its
continuing due diligence investigation of Rainbo, Xxxxx and the Purchased Assets
to be transferred to the Company by Rainbo pursuant to the terms of the Purchase
Agreement.
SECTION 3.2 RAINBO'S CONDITIONS PRECEDENT TO CLOSING. The obligations
of Rainbo to execute the Operating Agreement, to make its Initial Capital
Contribution thereunder and to make the Rainbo Loan are subject to the
fulfillment, at or prior to the Closing Date, of the following conditions, any
of which may be waived in writing, in whole or in part, by Rainbo:
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(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Universal and UFMG contained in this Agreement shall be in all
material respects true and accurate as of the date of this Agreement and, except
for changes expressly contemplated by this Agreement, at and as of the Closing
Date as if made at and as of such date.
(b) PERFORMANCE. Universal and UFMG shall have performed and
complied in all material respects with all covenants, agreements and conditions
contained in this Agreement required to be performed or complied with by it
prior to or at the Closing Date.
(c) ABSENCE OF LITIGATION. No suit, action, proceeding or
investigation shall be pending or threatened which seeks to prevent or delay the
consummation of the transactions contemplated by this Agreement.
(d) ASSET PURCHASE AGREEMENT. Universal and UFMG shall have
entered into the Purchase Agreement and shall simultaneously close the
transaction contemplated therein.
(e) AC DELCO CONSENT. Delco shall have consented, in writing, to
the formation of the Company and the transfer of the AC-Delco Warehouse
Distributor Supply Agreement from Rainbo to the Company.
(f) CONSENTS AND WAIVERS. Universal and UFMG shall have obtained
any and all other approvals, licenses, consents, permits and waivers, and made
any and all filings necessary or appropriate for the Company to engage in
business as contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF RAINBO AND XXXXX
As an inducement to Universal and UFMG to enter into this Agreement,
Rainbo and Xxxxx jointly and severally represent and warrant to Universal that
the following representations and warranties are true and accurate as of the
date of this Agreement and, except for changes expressly contemplated by this
Agreement, shall be true and accurate at and as of the Closing Date as if made
at and as of the Closing Date:
SECTION 4.1 ORGANIZATION AND STANDING; ARTICLES OF ORGANIZATION AND
OPERATING AGREEMENT. Rainbo is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Iowa. Rainbo is qualified or
licensed as a foreign corporation in all other jurisdictions where the nature
and conduct of its business requires, except where a failure to be so qualified
or licensed would not materially adversely affect Rainbo or the Company.
Attached as Schedule 4.1 are true, correct and complete copies of the Articles
of Incorporation and Bylaws of Rainbo as currently in effect. Rainbo has full
power and authority to own, lease and operate its properties and assets and to
carry on its business as presently conducted and proposed to be conducted.
SECTION 4.2 POWER; AUTHORIZATION.
(a) Rainbo and Xxxxx have the right, power and authority to enter
into and carry out the terms and conditions of this Agreement and all the
transactions contemplated hereunder, including, but not limited to, the
execution and performance of the Operating Agreement, the other agreements and
documents referred to therein to which they are parties, and the performance of
their obligations thereunder. All proceedings have been taken and all
authorizations have been obtained which are necessary to authorize the
execution, delivery and performance by Rainbo and Xxxxx of this Agreement, the
Operating Agreement and the other agreements and documents contemplated therein.
(b) This Agreement constitutes the valid and binding obligation of
Rainbo and Xxxxx, respectively, enforceable in accordance with its terms.
SECTION 4.3 NO VIOLATIONS. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby will not conflict
with, or result in any violation of, or default or loss of a benefit under, or
permit the acceleration of any obligation under, any provision of the articles
of incorporation or bylaws of Rainbo, or any mortgage, indenture, lease,
covenant, agreement or other instrument, permit, concession, grant, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Rainbo or its respective properties.
Page 27 of 115 Pages
SECTION 4.4 BROKERS. Neither Rainbo nor Xxxxx has incurred, directly or
indirectly, any obligation or liability for broker's or finder's fees, agent's
commissions or other similar charges in connection with this Agreement or any of
the transactions contemplated hereby for which Universal, UFMG or the Company
could be liable.
SECTION 4.5 FINANCIAL STATEMENTS. Rainbo has delivered to Universal its
unaudited balance sheet at December 31, 1999 and its unaudited statement of
operations for the 12-month period ended December 31, 1999 (the "Rainbo
Financial Statements"). Rainbo has delivered to Universal true and complete
copies of its state and federal tax returns for each year since its inception.
The Rainbo Financial Statements are complete and correct in all material
respects and present fairly the operating results and financial condition of
Rainbo as of the date and for the periods indicated therein. Prior to the
Closing Date, Rainbo will deliver to Universal its unaudited balance sheet for
the 8-month period ending August 31, 2000 and its unaudited statement of
operations for the six-month period then ended and such balance sheet and
statement of operations shall be complete and correct in all material respects
and present fairly the operating results and financial condition of Rainbo as of
the date and for the period indicated therein.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF UNIVERSAL
As an inducement to Rainbo and Xxxxx to enter into this Agreement,
Universal and UFMG jointly and severally represent and warrant to Rainbo and
Xxxxx that the following representations and warranties are true and accurate as
of the date of this Agreement and, except for changes expressly contemplated by
this Agreement, shall be true and accurate at and as of the Closing Date as if
made at and as of the Closing Date:
SECTION 5.1 ORGANIZATION AND STANDING; CERTIFICATE OF FORMATION.
Universal is a limited liability corporation, duly organized, validly existing
and in good standing under the laws of the State of Nebraska. UFMG is
corporation, duly incorporated, validly existing and in good standing under the
laws of the State of Nebraska. Universal and UFMG are qualified or licensed as a
foreign limited liability company or corporation in all other jurisdictions
where the nature and conduct of its business requires, except where a failure to
be so qualified or licensed would not materially adversely affect Universal or
UFMG. Universal and UFMG have full power and authority to own, lease and operate
its properties and assets and to carry on its business as presently conducted
and proposed to be conducted.
SECTION 5.2 POWER; AUTHORIZATION.
(a) Universal and UFMG have the right, power and authority to
enter into and carry out the terms and conditions of this Agreement and all the
transactions contemplated hereunder, including, but not limited to, the
execution and performance of the Operating Agreement and the performance of its
obligations thereunder. All proceedings have been taken and all authorizations
have been secured which are necessary to authorize the execution, delivery and
performance by Universal and UFMG of this Agreement, the Operating Agreement and
the other agreements and documents contemplated therein.
(b) This Agreement constitutes the valid and binding obligation of
Universal and UFMG respectively, enforceable in accordance with its terms.
SECTION 5.3 NO VIOLATIONS. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby will not conflict
with, or result in any violation of, or default or loss of a benefit under, or
permit the acceleration of any obligation under, any provision of the articles
of organization or operating agreement of Universal or the articles of
incorporation or bylaws of UFMG, or any mortgage, indenture, lease, covenant,
agreement or other instrument, permit, concession, grant, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Universal or UFMG or their respective properties.
SECTION 5.4 BROKERS. Neither Universal nor UFMG has incurred, directly
or indirectly, any obligation or liability for broker's or finder's fees,
agent's commissions or other similar charges in connection with this Agreement
or any of the transactions contemplated hereby for which either Rainbo, Xxxxx or
the Company could be liable.
ARTICLE VI
COVENANTS OF RAINBO AND XXXXX
Xxxxxx and Xxxxx covenant and agree with Universal and UFMG as follows:
Page 28 of 115 Pages
SECTION 6.1 OTHER CONSENTS. They will use their best efforts to obtain
promptly the consent or approval of Delco and each other person or entity whose
consent or approval shall be required in order to permit the Company to engage
in business as contemplated by this Agreement at the earliest practicable date.
SECTION 6.2 CONTINUING DUE DILIGENCE. Beginning with the date of
execution of this Agreement and continuing through the Closing Date, Universal
and UFMG shall be entitled to an additional due diligence investigatory period
during which it may conduct such review and examination of the books, records,
financial statements, assets and liabilities of Rainbo and Xxxxx as Universal or
UFMG deems appropriate.
SECTION 6.3 NO SHOPPING. Rainbo agrees that neither it nor any of its
agents or affiliates will, during the period beginning on the date hereof and
ending on the first to occur of (a) the Closing Date or (b) the termination of
this Agreement, (i) negotiate, solicit, encourage or authorize any person to
solicit from any third party any proposals relating to the disposition of the
VIP Division or Purchased Assets; or (ii) make any information concerning the
VIP Division or the Purchased Assets available to any person for the purpose of
causing or affecting a disposition of the VIP Division or the Purchased Assets.
SECTION 6.4 COOPERATION. Rainbo and Xxxxx shall cooperate reasonably
with Universal and UFMG and shall provide them with such assistance as they may
reasonably request for the purpose of facilitating their performance under this
Agreement and any and all other consents and waivers from third parties
necessary or convenient to consummate the transactions contemplated by this
Agreement. Rainbo and Xxxxx shall use their best efforts and good faith to do
all things contemplated herein prior to the Closing Date.
ARTICLE VII
COVENANTS OF UNIVERSAL
Universal and UFMG covenant and agree with Rainbo and Xxxxx as follows:
SECTION 7.1 OTHER CONSENTS. They will use their best efforts to obtain
promptly the consent or approval of Delco and each other person or entity whose
consent or approval shall be required in order to permit the Company to engage
in business as contemplated by this Agreement at the earliest practicable date.
SECTION 7.1 COOPERATION. Universal and UFMG shall cooperate reasonably
with Rainbo and Xxxxx and shall provide them with such assistance as they may
reasonably request for the purpose of facilitating their performance under this
Agreement and any and all other consents and waivers from third parties
necessary or convenient to consummate the transactions contemplated by this
Agreement. Universal and UFMG shall use their best efforts and good faith to do
all things contemplated herein prior to the Closing Date.
ARTICLE VIII
TERMINATION
SECTION 8.1 TERMINATION. This Agreement may be terminated at any time
prior to the Closing Date:
(a) By mutual written consent of Universal, UFMG, Rainbo and
Xxxxx.
(b) By Universal or UFMG if there has been a breach in any
material respect of any representation, warranty, covenant or agreement on the
part of Rainbo or Xxxxx set forth in this Agreement, which breach is not cured
within ten (10) days after written notice thereof is given to Rainbo or Xxxxx by
Universal or UFMG.
(c) By Rainbo or Xxxxx if there has been a breach in any material
respect of any representation, warranty, covenant or agreement on the part of
Universal or UFMG set forth in this Agreement, which breach is not cured within
ten (10) days after written notice thereof is given to Universal or UFMG by
Xxxxx or Rainbo.
(d) By either Universal, UFMG, Rainbo or Xxxxx if the Closing Date
shall not have occurred within ninety (90) days of the date of this Agreement,
for a reason other than the failure of the terminating party to comply with its
obligations under this Agreement.
Page 29 of 115 Pages
SECTION 8.2 EFFECT OF TERMINATION. Notice of termination of this
Agreement shall be given in accordance with Section 10.4 of this Agreement,
whereupon this Agreement shall forthwith become null and void and there be no
liability or obligation under this Agreement of the parties to each other except
to the extent that such termination results from the breach by a party hereto of
any of such party's representations, warranties, covenants or agreements set
forth in this Agreement.
SECTION 8.3 PRIOR AGREEMENT TERMINATION. Universal, UFMG, Rainbo and
Xxxxx hereby acknowledge and agree that upon execution of this Agreement, that
certain Asset Purchase Agreement between Universal, UFMG, Rainbo and Xxxxx dated
May 8, 2000 shall be deemed terminated pursuant to Section 11.1(a) and shall be
null and void and of no further force and effect between the parties.
Article 9
INDEMNIFICATION OBLIGATIONS
SECTION 9.1 INDEMNIFICATION BY RAINBO AND XXXXX. Rainbo and Xxxxx
hereby covenant and agree that they shall defend and indemnify Universal and
UFMG and hold harmless Universal and UFMG at all times after the Closing Date
from and against and in respect to any and all losses, liabilities, claims,
costs (including, without limitation, court costs and reasonable attorneys'
fees), damages, expenses or deficiencies arising out of or due to: (i) any
breach of any of the representations or warranties made by Rainbo or Xxxxx in or
pursuant to this Agreement, or (ii) failure of Rainbo or Xxxxx to perform any
covenant, agreement, obligation or undertaking made by or imposed upon them or
either of them pursuant to this Agreement, which failure is not cured within ten
(10) business days after notice thereof is given to Rainbo or Xxxxx by Universal
or UFMG. Neither Universal nor UFMG shall be entitled to assert any claim for
indemnification in respect of a breach of any representation or warranty until
such time as all claims of Universal and UFMG for such indemnification exceed
$25,000, at which time all claims of Universal and UFMG for indemnification in
respect of breaches of representations and warranties, including the first
$25,000 of such claims, may be asserted.
SECTION 9.2 INDEMNIFICATION BY UNIVERSAL AND UFMG. Universal and UFMG,
hereby covenant and agree that they shall defend and indemnify Rainbo and Xxxxx
at all times after the Closing Date from and against and in respect to any and
all losses, liabilities, claims, costs (including, without limitation, court
costs and reasonable attorneys' fees), damages, expenses or deficiencies arising
out of or due to: (i) any breach of any of the representations or warranties
made by Universal or UFMG in or pursuant to this Agreement, or (ii) failure of
Universal or UFMG to perform any covenant, agreement, obligation or undertaking
made by or imposed upon them or either of them pursuant to this Agreement, which
failure is not cured within ten (10) business days after notice thereof is given
to Universal or UFMG by Rainbo or Xxxxx. Neither Rainbo nor Xxxxx shall be
entitled to assert any claim for indemnification in respect of a breach of any
representation or warranty until such time as all claims of Rainbo and Xxxxx for
such indemnification exceed $25,000, at which time all claims of Rainbo and
Xxxxx for indemnification in respect of breaches of representations and
warranties, including the first $25,000 of such claims, may be asserted.
SECTION 9.3 SURVIVAL; PROCEDURE FOR INDEMNIFICATION. All
representations, warranties, covenants, agreements and obligations of the
parties under this Agreement, any exhibit or document attached to this Agreement
or delivered pursuant hereto, shall survive the Closing Date for three years
(the "INDEMNIFICATION PERIOD"). The party seeking indemnification (the
"INDEMNIFIED PARTY") shall assert any claim or claims for indemnification under
the provisions of Sections 9.1 or 9.2 above by giving written notice of such
claim or claims to the other party (the "INDEMNIFYING PARTY"). Each such notice
shall set forth in reasonable detail the factual basis giving rise to the claim
or claims and the amount of the damages and expenses incurred by the Indemnified
Party as a result of such claim or claims. Such notice shall be given within a
reasonable time after receipt of actual notice of such claim by the Indemnified
Party. Failure to give such notice shall in no way abrogate or diminish the
Indemnifying Party's obligations if such failure does not materially prejudice
the Indemnifying Party's ability to defend such claim. Any failure to give such
notice which is induced by or is the result of any act or omission of the
Indemnifying Party's representatives or agents, or any of them, shall not
abrogate or diminish the Indemnifying Party's obligations under this Article 9.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 SUCCESSORS AND ASSIGNS. All terms and provisions of this
Agreement shall be binding upon
Page 30 of 115 Pages
and inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, beneficiaries, personal representatives, successors, legal
representatives and assigns.
SECTION 10.2 GOVERNING LAW. This Agreement shall for all purposes be
deemed to be executed and performed in the State of Nebraska and shall be
construed according to the laws of that state.
SECTION 10.3 COUNTERPARTS. This Agreement may be exercised in any one
or number of counterparts, each of which shall be deemed an original and which
together shall constitute one and the same instrument.
SECTION 10.4 NOTICES. All notices or other communications required or
permitted to be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to be duly given if delivered personally,
transmitted by facsimile (with receipt confirmed) or mailed by certified mail,
return receipt requested, with postage prepaid, if to Rainbo or Xxxxx:
If to Buyer: If to Seller:
Xxxxxx X. Xxxxxx Xxxx Xxxxx, President
Universal Distribution LLC Rainbo Oil Company
X.X. Xxx 000 0000 Xxxxxx Xxxx.
000 Xxxxxxxx Xxxxxx P. X. Xxx 000
Xxxxxx, Xxxx 00000-0000 Xxxxxxx, Xxxx 00000
with a copy to: with a copy to:
Xxxxxxxx X. Xxxxxx, Esq. Xxxxx X. Xxxx, Esq.
Xxxxx Xxxx Law Firm Xxxx, Xxxx & Xxxxxxx, P.C.
1500 Woodmen Tower 0000 Xxxxxx Xxxx, Xxxxx 0
Xxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxx 00000-0000
Fax: (000)000-0000 Fax: (000) 000-0000
SECTION 10.5 SECTION HEADINGS. All section headings are inserted for
convenience only and are not intended to modify or interpret this Agreement.
SECTION 10.6. EXPENSES. Each party shall pay his or its own expenses
incident to the preparation and performance of this Agreement and the
transactions contemplated herein; provided that upon the Closing Date, the
reasonable expenses of the parties incurred in connection with this Agreement
and the transactions contemplated thereby shall be the obligation of the Holding
Company.
SECTION 10.7 ENTIRE AGREEMENT. This Agreement, together with all of the
attached exhibits and schedules which are incorporated herein by this reference,
constitutes the entire agreement among the parties with respect to the subject
matter of this Agreement and supersedes all prior agreements and understandings,
both oral and written, among the parties with respect to the subject matter of
this Agreement.
SECTION 10.8 WAIVER. The failure to enforce or to require the
performance at any time of any of the provisions of this Agreement shall in no
way be construed to be a waiver of such provisions and shall not affect either
the validity of this Agreement or any part hereof or the right of any party
thereafter to enforce each and every provision in accordance with the terms of
this Agreement.
SECTION 10.9 SPECIFIC PERFORMANCE. The parties agree that irreparable
damage would occur if any provision of this Agreement were not performed in
accordance with its terms and that the parties shall be entitled, without
posting bond or other collateral, to an injunction or injunctions to prevent
breaches of this Agreement or to enforce specifically the performance of the
terms and provisions of this Agreement in any federal court located in the State
of Nebraska or any Nebraska state court, in addition to any other remedy to
which they are entitled at law or in equity.
SECTION 10.10 SEVERABILITY. If any provision of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions of this Agreement
which shall nevertheless remain in full force and effect.
Page 31 of 115 Pages
SECTION 10.11 FURTHER ACTIONS. Following the Closing Date, at the
request of either party, the other party shall deliver such further instruments
of transfer and take all reasonable action as may be necessary or appropriate to
effectuate this Agreement and the transactions contemplated hereby. Each party
will promptly notify the other party of any information delivered to or obtained
by such party which would prevent the consummation of the transactions
contemplated by this Agreement, or would indicate a breach of the
representations, warranties or covenants of any of the parties to this
Agreement.
SECTION 10.12 JOINT PUBLICITY. No party to this Agreement shall issue
any press release or make a public announcement prior to or on the Closing Date
concerning this Agreement or the transactions contemplated hereby without the
prior approval of the parties hereto, which approval shall not be unreasonably
withheld.
SECTION 10.13 NO THIRD PARTY BENEFICIARY. This Agreement is for the
sole benefit of the parties hereto, and their respective successors and
permitted assigns, and nothing herein, express or implied, is intended to or
shall confer upon any other person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
UNIVERSAL DISTRIBUTION LLC,
a Nebraska limited liability company
By:
---------------------------------
Title:
------------------------------
RAINBO OIL COMPANY,
an Iowa corporation
By:
---------------------------------
Title:
------------------------------
UNIVERSAL MFG. CO.,
a Nebraska corporation
By:
-----------------------------------
Title:
--------------------------------
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Xxxx Xxxxx
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