EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, dated as of November 29, 2001, by and among
ELAN-POLO, INC., a Missouri corporation (the "Elan-Polo") and XXXXXX XXXXX
COMPANY, a Massachusetts corporation (the "Xxxxxx Xxxxx"). A schedule of defined
terms is set forth in Exhibit A annexed hereto.
R E C I T A L S:
WHEREAS, Xxxxxx Xxxxx is engaged in the manufacture, import, marketing,
design and wholesale of men's and women's footwear in the United States under
various brand names, including the Xxxxxx Xxxxx and X.X. Xxxxx brand names; and
WHEREAS, Elan-Polo desires to purchase and acquire from Xxxxxx Xxxxx and
Xxxxxx Xxxxx desires to sell and transfer to Elan-Polo all of its inventories
and certain other assets used solely in connection with the marketing and sale
of footwear products under the Xxxxxx Xxxxx and X.X. Xxxxx brands (the "Acquired
Brands"), all on the terms and conditions set forth herein;
P R O V I S I O N S :
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties and
agreements herein contained, the parties, intending to be legally bound hereby,
agree as follows:
ARTICLE I
ASSETS TO BE PURCHASED AND SOLD
Section 1.1 Acquired Assets.
(a) Acquired Assets. On the Closing Date (as defined in Section
2.1(a)), subject to the terms and conditions of this Agreement, Xxxxxx
Xxxxx shall sell, assign, transfer, convey and deliver, to Elan-Polo, and
Elan-Polo shall purchase, pay for and accept from Xxxxxx Xxxxx all of the
right, title and interest of Xxxxxx Xxxxx in all of the following assets
held by Xxxxxx Xxxxx as of the Closing Date ("Acquired Assets"), free and
clear of all liens, claims, charges or encumbrances of any nature
whatsoever ("Encumbrances"), in each case solely to the extent used in the
manufacture, import, marketing, design or wholesale of men's and women's
footwear under the Acquired Brands' names:
(i) Contracts. To the extent assignable, all executory contracts
and contract rights of Xxxxxx Xxxxx, including, without limitation,
those for the purchase of materials, supplies and services, the sale
of products or services and rights and claims and interests of every
kind, such as foreign agent agreements, undelivered
manufacturer/factory orders, buyer agent and other service agreements,
sales orders, supply contracts, purchase orders, commitments,
trademark, copyright and other license agreements and other documents
to which Xxxxxx Xxxxx is a party or by which it has rights and/or
obligations (collectively, the "Assigned Contracts"),
1
including, but not limited to, the Acquisition Agreement between X.X.
Xxxxx Son Company Limited Partnership and Xxxxxx Xxxxx Company, dated
January 11, 2000 (the "X.X. Xxxxx Acquisition Agreement")
(ii) Acquired Inventory. All inventories of finished goods, work
in progress, raw materials, service parts and supplies (including all
pre-production approved samples by customers and licensees), wherever
located at the Closing Date, including, without limitation, such
inventories:
(A) located at facilities owned, used or leased by Xxxxxx
Xxxxx'x foreign agents;
(B) located at facilities owned, used or leased by Xxxxxx
Xxxxx'x manufacturers or suppliers;
(C) in transit; and
(D) located on the premises of Xxxxxx Xxxxx'x warehouse
distribution facility in Old Town, Maine (the "Xxxxxx Xxxxx
Warehouse").
(All inventories described under this Section 1.1(a)(ii) are referred to
collectively as the "Acquired Inventory.")
Provided, however, that any product styles made exclusively for sale to
Dillards, Inc. shall be excluded from the Acquired Inventory unless prior to the
Closing Date Dillards confirms to Xxxxxx Xxxxx its intention to purchase such
inventory in the future. However, if such Dillards inventory is excluded from
the Acquired Inventory, Xxxxxx Xxxxx, in its sole discretion, shall have the
right to sell such inventory as Xxxxxx Xxxxx sees fit.
(iii) Trademarks. All registered and unregistered trade
names, trademarks, service marks, product designations, corporate
names, trade dress, logos, slogans, designs and general intangibles of
like nature, together with all registrations and recordings and all
applications for registration therefor and all translations,
adaptations, derivatives and combinations thereof identified and
described in Schedule 1.1 of the Xxxxxx Xxxxx Disclosure Schedule (the
"Acquired Trademarks") and all goodwill thereof.
(iv) Permits, Licenses, Registrations, Etc. To the extent
assignable, all consents, permits, licenses, orders, registrations,
franchises, certificates, approvals or other similar rights from any
federal, state or local regulatory agencies.
(v) Books and Records. All operating manuals and guidelines,
software manuals and documentation, manuals and data, catalogues,
slogans, quotations, sales and advertising materials, sales and
purchase correspondence, research and development records, lists of
present and former customers and suppliers, customer credit
information, customer pricing information, business plans and
personnel and employment records and files.
(b) Retained Assets. Notwithstanding anything contained herein to the
contrary, Xxxxxx Xxxxx shall not sell, transfer, convey or deliver, or
cause to be sold, transferred,
2
conveyed or delivered, to Elan-Polo, and Elan-Polo shall not purchase from
Xxxxxx Xxxxx any of the following assets, properties, interests and rights
of Xxxxxx Xxxxx (the "Retained Assets"):
(i) Cash and Cash Equivalents. All cash and cash equivalents,
such as bank deposits and securities;
(ii) Accounts and Notes Receivable. All accounts and notes
receivable, net of all charge backs, offsets and credits;
(iii) Penobscot Shoe Company. All capital stock of any
subsidiaries, including, but not limited to, the capital stock of
Penobscot Shoe Company ("Penobscot");
(iv) Real Properties and Leasehold Interests. All interests,
options or rights in and to all real property (including the Xxxxxx
Xxxxx Warehouse) and or leases of real property used or occupied by
Xxxxxx Xxxxx, together with all buildings, structures, improvements,
easements, fixtures, rights of way and appurtenances located therein
or thereon;
(v) Books and Records. All books and records of Xxxxxx Xxxxx
related to the other Retained Assets or the Retained Liabilities,
provided, however, that Xxxxxx Xxxxx shall allow Elan-Polo reasonable
access to all books and records relating to the sales history, cost of
goods sold history and accounts receivable write-off history of the
Acquired Assets;
(vi) Other Assets. All other assets, properties, interests and
rights of Xxxxxx Xxxxx which are not used solely in the manufacture,
import, marketing, design or wholesale of men's and women's footwear
under the Acquired Brands names; and
(vii) Rights Under This Agreement. All of Xxxxxx Xxxxx'x rights
under this Agreement, the Conveyance Agreements, the Note, the L/C,
the Collateral Assignment, the Transition Services Agreement, the
Lease Agreement and all other agreements, documents and instruments
execute in connection herewith.
Section 1.2 Xxxxxx Xxxxx'x Liabilities.
(a) Assumed Liabilities. On and as of the Closing Date, subject to the
terms and conditions of this Agreement, Elan-Polo shall assume and agree to
pay, perform and discharge as and when due all of the following liabilities
and obligations of Xxxxxx Xxxxx that arise after the Closing (collectively,
the "Assumed Liabilities"):
(i) under the Assigned Contracts, including, but not limited to,
the X.X. Xxxxx Acquisition Agreement; and
(ii) All obligations and liabilities in respect of any and all
Acquired Inventory sold by Elan-Polo or any of its affiliates or
associates on or after the Closing Date, including obligations and
liabilities for product liability claims for defective products for
personal, property or other damage or for refunds, adjustments,
allowances, rebates, repairs, exchanges, returns and warranties of
merchantability and other contractual warranty claims.
3
(b) Liabilities Not Assumed. Notwithstanding anything to the contrary
contained in this Agreement, except for the Assumed Liabilities, Elan-Polo
shall not assume or in any manner become liable or responsible for any
liability, obligation, commitment or expense of any kind, known or unknown,
now existing or hereafter arising, of or related to Xxxxxx Xxxxx, or the
Acquired Assets. Xxxxxx Xxxxx shall retain responsibility for all of its
liabilities, payments or obligations other than the Assumed Liabilities
(the "Retained Liabilities"), including obligations and liabilities for
refunds, adjustments, allowances, repairs, exchanges, returns, claims of
warranty of merchantability and other claims from products sold by Xxxxxx
Xxxxx under the Acquired Brands names prior to the Closing Date.
Section 1.3 Xxxxxx Xxxxx/Elan-Polo Buying Agency Agreement. Notwithstanding
anything to the contrary, Xxxxxx Xxxxx and Elan-Polo agree that the Buying
Agency Agreement dated January 1, 2000 between such parties shall terminate and
be of no further force or effect as of the Closing Date.
Section 1.4 Transition Services Agreement. On the Closing Date, Xxxxxx
Xxxxx and Elan-Polo shall enter into a Transition Services Agreement in the form
attached hereto as Exhibit B (the "Transition Services Agreement").
Section 1.5 Lease Agreement. On the Closing Date, Xxxxxx Xxxxx and
Elan-Polo shall enter into a Lease Agreement for the Xxxxxx Xxxxx Warehouse in
the form attached hereto as Exhibit C (the "Lease Agreement").
ARTICLE II
CLOSING AND CLOSING DATE; PURCHASE PRICE
Section 2.1 The Closing.
(a) Closing Date. Subject to Article VI, the closing of the
transactions contemplated by this Agreement (the "Closing") shall take
place at the offices of Xxxxx Xxxxxx Xxxxxx LLP, Rochester, New York,
commencing at 10:00 a.m., local time, on December 28, 2001 and TIME IS
HEREBY MADE OF THE ESSENCE (the "Closing Date").
(b) Closing Documents.
(i) Xxxxxx Xxxxx'x Deliveries. At or prior to the Closing, Xxxxxx
Xxxxx shall deliver or cause to be delivered to Elan-Polo the
following documents (the "Xxxxxx Xxxxx Closing Documents"):
(A) an Assignment and Assumption Agreement substantially in
the form attached hereto as Exhibit D (the "Contract Assignment")
executed by Xxxxxx Xxxxx conveying the Assigned Contracts to
Elan-Polo;
(B) a separate trademark assignment in the form attached
hereto as Exhibit E (the "Trademark Assignments") executed by
Xxxxxx Xxxxx conveying the Acquired Trademarks to Elan-Polo;
4
(C) a Xxxx of Sale in the form attached hereto as Exhibit F
(the "Xxxx of Sale") executed by Xxxxxx Xxxxx conveying the
Acquired Inventory to Elan-Polo; and
(D) such other sale, conveyance and transfer documents in
form and substance reasonably satisfactory to Elan-Polo and its
counsel in order effectively to vest in Elan-Polo title to all of
the Acquired Assets (all such documents, together with the
Contract Assignment, the Trademark Assignments and the Xxxx of
Sale, the "Conveyance Agreements"), as required by Section
6.2(c);
(E) as required by Section 1.4, the Transition Services
Agreement executed by Xxxxxx Xxxxx;
(F) as required by Section 1.5, the Lease Agreement executed
by Xxxxxx Xxxxx;
(G) the books, lists and papers described in Section
1.1(a)(v);
(H) the Preliminary Inventory Certificate for the
calculation of the purchase price attributable to the Acquired
Inventory contemplated under Section 2.2(a)(iv);
(I) a UCC-11 search showing no security interests recorded
against the Acquired Assets, except for Manufacturers Traders and
Trust Company and Xxxxx Xxxxxxx together with UCC-3 releases
signed by Manufacturers and Traders Trust Company and Xxxxx
Xxxxxxx (or his assignee) releasing their respective security
interest in the Acquired Assets;
(J) a certificate executed by Xxxxxx Xxxxx'x secretary
certifying to the resolutions necessary to authorize Xxxxxx
Xxxxx'x execution and delivery of this Agreement, the Conveyances
Agreement, the Transition Services Agreement, the Lease Agreement
and the performance of its obligations hereunder and thereunder;
(K) an incumbency certificate and good standing certificates
with respect to Xxxxxx Xxxxx;
(L) the Xxxxxx Xxxxx Brand Annual Minimum Payment
certificate pursuant to, and X.X. Xxxxx Brand Annual Minimum
Payment certificate pursuant to, Section 2.2(b)(i) and (ii),
respectively; and
(M) any other documents otherwise required by this Agreement
to be delivered by Xxxxxx Xxxxx at or prior to the Closing.
(ii) Elan-Polo's Closing Deliveries. At the Closing, Elan-Polo
shall deliver or cause to be delivered to Xxxxxx Xxxxx the following
documents (the "Elan-Polo Closing Documents"):
(A) the Conveyance Agreements to which it will become a
party, in each case executed by Elan-Polo;
5
(B) as required by Section 2.2(a)(vi) below, the Note
executed by Elan-Polo and the L/C issued by the L/C Bank;
(C) as required by Section 2.2(b)(iv)(F), the Collateral
Assignment executed by Elan-Polo;
(D) a certificate executed by Elan-Polo's secretary
certifying to the resolutions necessary to authorize Elan-Polo's
execution and delivery of this Agreement, the Note, the
Conveyance Agreements, the documents required by the L/C Bank to
issue the L/C, the Collateral Assignment, the Transition Services
Agreement, the Lease Agreement and all other agreements,
documents and instruments execute in connection herewith and the
performance of its obligations hereunder and thereunder;
(E) an incumbency certificates and good standing
certificates with respect to Elan-Polo;
(F) as required by Section 1.4, the Transition Services
Agreement executed by Elan-Polo;
(G) as required by Section 1.5, the Lease Agreement executed
by Elan-Polo; and
(H) any other documents otherwise required by this Agreement
to be delivered by Elan-Polo at or prior to the Closing.
Section 2.2 Purchase Price. In consideration of the sale, transfer,
conveyance and assignment of all the Acquired Assets, on the Closing Date,
Elan-Polo shall assume the Assumed Liabilities and as the purchase price pay
Seller the sum of (a)(i) and (b)(i) and (ii) set forth below in this Section 2.2
(the "Purchase Price"):
(a) Acquired Inventory Purchase Price.
(i) The total amount due for the Acquired Inventory (the
"Acquired Inventory Purchase Price") shall be the sum of (A) the
aggregate Inventory Cost for all Acquired Inventory in the Carry-Over
A Styles, (B) 50% of the aggregate Inventory Cost for all Acquired
Inventory in the Carry-Over B Styles and the Discontinued A Styles and
(C) 25% of the aggregate Inventory Cost for all Acquired Inventory in
the Discontinued B Styles and the classification of all product styles
as set forth on Exhibit F attached hereto. For purposes hereof,
"Inventory Cost" means Xxxxxx Xxxxx'x costs for the Acquired Inventory
as recorded in its books of account as of the Closing Date, inclusive
of net invoice cost, freight, duty and other direct costs, taxes, and
assessments.
(ii) Notwithstanding anything to the contrary above, Elan-Polo
reserves the right to renegotiate the Inventory Cost of any particular
style if the inventory level of such particular style exceeds the
projected inventory level furnished by Xxxxxx Xxxxx on November 13,
2001 by more than 25%.
6
(iii) Elan-Polo shall be entitled to receive Xxxxxx Xxxxx'x
perpetual inventory records for each style included in the Acquired
Inventory, including pairs and the Inventory Cost, at least thirty
(30) days prior to the Closing Date. In addition, Elan-Polo shall be
entitled to conduct verification of Xxxxxx Xxxxx'x Acquired Brands
inventory quantities and landed cost of such perpetual inventory
records. Elan-Polo also will be entitled to receive weekly sales and
quantities reports after the date hereof and prior to the Closing Date
for inventories of each style included in the Acquired Brands, as well
as copies of receipts for such inventories with quantities and the
Inventory Cost from the date of the perpetual inventory report through
the Closing Date.
(iv) At the Closing, Xxxxxx Xxxxx shall deliver to Elan-Polo a
certificate executed by an officer of Xxxxxx Xxxxx certifying the
total amount due for the Acquired Inventory (the "Preliminary
Inventory Certificate") pursuant to Section 2.2(a)(i), which shall set
forth the quantity of each style included in the Acquired Inventory
and the Inventory Cost thereof and the aggregate amount due for the
Acquired Inventory Purchase Price pursuant to Section 2.2(a)(i) above.
At the Closing, Elan-Polo shall pay to Xxxxxx Xxxxx the sum due for
the Acquired Inventory Purchase Price pursuant to Section 2.2(a)(i)
based on the Preliminary Inventory Certificate (the "Estimated
Acquired Inventory Purchase Price") and in accordance with Section
2.2(vi) below.
(v) As soon as reasonably practicable following the Closing,
Xxxxxx Xxxxx shall cause Deloitte & Touche, LLP ("Deloitte &Touche")
to audit the physical inventory of the Acquired Inventory as of the
Closing Date and to verify that the information contained in the
Preliminary Inventory Certificate has been prepared in accordance with
the terms of this Agreement. Xxxxxx Xxxxx and Elan-Polo shall
cooperate in making the Acquired Inventory and all relevant supporting
books and records available to Delloite & Touche. Xxxxxx Xxxxx and
Elan-Polo shall share equally all fees, costs and expense of Delloite
& Touche's engagement. Xxxxxx Xxxxx shall use reasonable efforts to
have the engagement completed within ninety (90) days after the
Closing Date.
If Delloite & Touche determines that the Preliminary Inventory Certificate
is correct, then it shall become and be deemed to be the Final Inventory
Certificate. If Deloitte & Touche determines that the Preliminary Inventory
Certificate is incorrect, then it shall prepare and issue a Final Inventory
Certificate that sets forth the correct information. In either case, the Final
Inventory Certificate shall be final and binding on the parties for purposes of
determining the Final Acquired Inventory Purchase Price. If the Estimated
Acquired Inventory Purchase Price is more or less than the Final Acquired
Inventory Purchase Price, then the principal amount of the Note referred to
below shall be adjusted by such difference. In such event, Elan-Polo shall
promptly prepare and issue a new Note to amend and restate the old Note and upon
Xxxxxx Xxxxx'x acceptance thereof, Xxxxxx Xxxxx shall surrender the old Note to
Elan-Polo.
(vi) The Acquired Inventory Purchase Price shall be paid as
follows:
(A) At Closing, Elan-Polo shall pay or cause to be paid to
Xxxxxx Xxxxx an amount equal to 50% of the aggregate Inventory
Cost of all Acquired Inventory by wire transfer of immediately
available funds to an account designated by Xxxxxx Xxxxx (or
other means acceptable to Xxxxxx Xxxxx); and
7
(B) At Closing, Elan-Polo shall issue its promissory note
(the "Note") in the principal amount equal to 50% of the
aggregate Inventory Cost of all Acquired Inventory. The Note
shall be payable in full on June 30, 2002 (the "Note Maturity
Date") (unless earlier accelerated) and, prior to an event of
default, accrue no interest. The Note shall be in the form of
Exhibit G annexed hereto and dated as of the Closing Date. The
Note shall provide that it is not subject to any offset of any
kind and shall be in negotiable form.
(C) In order to secure all of Elan-Polo's obligations under
the Note, Elan-Polo shall, at its own cost and expense and for
its account, cause to be issued, on the Closing Date, an
irrevocable standby Letter of Credit in the original face amount
equal to the original principal amount of the Note (the "L/C")
for the benefit of Xxxxxx Xxxxx, issued by a national bank (the
"L/C Bank") reasonably acceptable to Xxxxxx Xxxxx. The L/C shall
provide that Xxxxxx Xxxxx may draw the full face amount of the
L/C upon its presentation of a sight draft and a certificate
wherein it certifies that Elan-Polo is in default of payment
under the Note. There shall be no other conditions to a draw on
the L/C. The L/C shall be fully transferable and assignable by
Xxxxxx Xxxxx. The L/C shall have an expiration date that is
thirty (30) days after the Note Maturity Date. The L/C shall
otherwise be in the form of Exhibit H annexed hereto and
otherwise acceptable to Xxxxxx Xxxxx.
(b) Additional Purchase Price Payments.
(i) Xxxxxx Xxxxx Brand Payments. On or before March 1, 2003,
March 1, 2004 and March 1, 2005, Elan-Polo shall pay Xxxxxx Xxxxx an
amount equal to the greater of (A) 6% of the Net Sales of all Xxxxxx
Xxxxx brand name products sold during the immediately preceding
calendar year or (B) 6% of 70% of Xxxxxx Xxxxx'x Net Sales of Xxxxxx
Xxxxx brand name products shipped for calendar year 2001 (the "Xxxxxx
Xxxxx Brand Annual Minimum Payment") (the annual payment collectively
referred to as the "Xxxxxx Xxxxx Brand Payment"). Xxxxxx Xxxxx shall
deliver a certificate at the Closing setting forth the Xxxxxx Xxxxx
Brand Annual Minimum Payment and the supporting calculation therefor.
(ii) X.X. Xxxxx Brand Payment. On or before March 1, 2003, March
1, 2004, March 1, 2005 and March 1, 2006, in accordance with the terms
of the X.X. Xxxxx Acquisition Agreement, Elan-Polo shall pay an amount
equal to (A) 8% of the Net Sales of all X.X. Xxxxx brand name products
sold during calendar year 2002 and an amount equal to 6.25% of the Net
Sales of all X.X. Xxxxx brand name products sold during the calendar
years 2003, 2004 and 2005 or (B) 6.25% of 70% of Xxxxxx Xxxxx'x Net
Sales of X.X. Xxxxx brand name products shipped for calendar year 2001
(the "X.X. Xxxxx Brand Annual Minimum Payment") (the annual payments
collectively referred to as the "X.X. Xxxxx Brand Payment"). Xxxxxx
Xxxxx shall deliver a certificate at Closing setting forth the X.X.
Xxxxx Brand Annual Minimum Payment and the supporting calculation
therefor.
(iii) Net Sales Definition. "Net Sales" means the gross sales
price of all products during the relevant period, less all trade,
quantity and cash discounts actually allowed and taken, credits or
allowances actually granted on account of rejection or returns; actual
charges for bad debts and billing errors; value added and excise taxes
and duties; sales taxes (excluding taxes paid on income); and other
governmental charges actually paid.
8
(iv) Obligations of Elan-Polo Relating to Deferred Payments.
During the periods for which any Xxxxxx Xxxxx Brand Payment or X.X.
Xxxxx Brand Payments shall be due under this Section 2.2(b), Elan-Polo
shall:
(A) Deliver to Xxxxxx Xxxxx statements of Net Sales of the
Xxxxxx Xxxxx and X.X. Xxxxx products sold by Elan-Polo during
each calendar quarter within thirty (30) days following the end
of such calendar quarter. Each such statement shall be in
reasonable detail and shall set forth Elan-Polo's Net Sales of
Xxxxxx Xxxxx and X.X. Xxxxx product sold by Elan-Polo, on a
product-by-product basis, for the period to which it relates
certified by Elan-Polo's Chief Financial Officer.
(B) Maintain complete, true and correct books of account
concerning the sale of Xxxxxx Xxxxx and X.X. Xxxxx products in
sufficient detail to enable both the Xxxxxx Xxxxx Brand Payment
and the X.X. Xxxxx Brand Payment to be readily computed and
verified. Elan-Polo shall permit Xxxxxx Xxxxx, its agents and/or
independent public accountants, to have full access to such books
of account (including the right to make copies thereof) during
normal business hours and upon reasonable notice to Elan-Polo.
(C) If Xxxxxx Xxxxx concludes, after review of Elan-Polo's
statements of Net Sales and/or books of account, that additional
payments are owing to Xxxxxx Xxxxx under this Section 2.2(b) with
respect to the period(s) reviewed, then Xxxxxx Xxxxx shall notify
Elan-Polo in writing of its determination, which notice (the
"Deficiency Notice") shall set forth in detail the basis for
Xxxxxx Xxxxx'x determination that additional amounts are due and
owing and the amount thereof. If Xxxxxx Xxxxx and Elan-Polo are
unable to resolve the disputed items within ten (10) business
days after Elan-Polo receives the Deficiency Notice, the matter
shall be determined in accordance with Section 2.2(c).
(D) Elan-Polo shall exercise best efforts to sell the
maximum amount of Xxxxxx Xxxxx and X.X. Xxxxx brand products
during the deferred payment periods for which the Xxxxxx Xxxxx
Brand Payment and the X.X. Xxxxx Brand Payment is due.
(E) If either the Xxxxxx Xxxxx Brand Payment or the X.X.
Xxxxx Brand Payment is not paid when due, interest shall be due
on the delinquent amount at the prime rate then published in the
Wall Street Journal plus 3%. In the event that Xxxxxx Xxxxx must
commence legal action to collect such payments, Elan-Polo shall
be responsible for and pay all of the attorneys' fees incurred by
Xxxxxx Xxxxx in connection therewith.
(F) To secure the deferred payments hereunder this Section
2.2(b), Elan-Polo shall grant to Xxxxxx Xxxxx a security interest
in the Acquired Trademarks and related goodwill on the terms and
conditions set forth in the Collateral Assignment in the form of
Exhibit I annexed hereto, which Elan-Polo shall execute and
deliver to Xxxxxx Xxxxx at Closing.
(c) Payment Disputes. If any amounts are disputed under Section 2.2(a)
or 2.2(b), the parties shall refer the dispute to Deloitte & Touche, to
finally determine, as soon as practicable, and in any event within ninety
(90) days after such reference, the amounts, if any, owing to Xxxxxx Xxxxx
for the period(s) under consideration. Amounts, if any, determined by
Deloitte & Touche to be owing shall bear interest at the rate of 10% per
annum from the date the amounts should originally have been paid. The fees
and expenses of Deloitte & Touche incurred
9
for this purpose shall be allocated between the parties by Deloitte &
Touche in proportion to the extent either party did not prevail on items in
dispute; provided that such fees and expenses shall not include, so long as
a party complies with the procedures of this Section 2.2(c), the other
party's outside counsel or accounting fees. All determinations by Deloitte
& Touche shall be final, binding, and conclusive with respect to (i)
amounts owing to Xxxxxx Xxxxx for the period(s) in dispute, including
interest thereon, and (ii) the allocation of its fees and expenses.
Judgment upon the award rendered by Deloitte & Touche may be entered in any
court having jurisdiction thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF XXXXXX XXXXX
Xxxxxx Xxxxx represents and warrants to Elan-Polo as follows:
Section 3.1 Organization.
(a) Xxxxxx Xxxxx is a corporation duly organized, validly existing and
in good standing under the laws of the State of Massachusetts and has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted, except
where the failure to be so organized, existing and in good standing or to
have such power and authority would not have a material adverse effect on
the Acquired Asset. Xxxxxx Xxxxx is duly qualified or licensed to do
business and in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by
it makes such qualification or licensing necessary, except where the
failure to be so duly qualified or licensed and in good standing would not
in the aggregate have a material adverse effect on the Acquired Assets.
(b) For purposes of this Agreement, any reference to any event, change
or effect having a "material adverse effect on the Acquired Assets" means
such event, change or effect which is materially adverse to (A) the
Acquired Assets, taken as a whole, or (B) the ability of Xxxxxx Xxxxx to
consummate the transactions contemplated hereby.
Section 3.2 Authority. Xxxxxx Xxxxx, has the requisite corporate power and
authority to execute and deliver this Agreement and the Xxxxxx Xxxxx Closing
Documents and to consummate the transactions contemplated hereby and thereby.
The execution, delivery and performance of this Agreement and the Xxxxxx Xxxxx
Closing Documents by Xxxxxx Xxxxx and the consummation by Xxxxxx Xxxxx of the
transactions contemplated hereby and thereby have been duly authorized by the
Xxxxxx Xxxxx Board of Directors, and no other corporate proceedings on the part
of Xxxxxx Xxxxx are necessary to authorize this Agreement and the Xxxxxx Xxxxx
Closing Documents, or to consummate the transactions so contemplated. This
Agreement has been and each of the Xxxxxx Xxxxx Closing Documents will be duly
executed and delivered by Xxxxxx Xxxxx and constitutes or (to the extent such
agreement is not being entered into as of the date hereof) will constitute a
valid and binding obligation of each of Xxxxxx Xxxxx, enforceable against it in
accordance with its terms.
Section 3.3 Consents and Approvals; No Violations. Except as set forth in
Section 3.3 of the Xxxxxx Xxxxx Disclosure Schedule, none of the execution,
delivery or performance of this Agreement or the Xxxxxx Xxxxx Closing Documents
by Xxxxxx Xxxxx, or the consummation by
10
Xxxxxx Xxxxx of the transactions contemplated hereby or thereby and compliance
by Xxxxxx Xxxxx with any of the provisions hereof or thereof will (i) conflict
with or result in any breach of any provisions of the Articles of Organization
or By-Laws of Xxxxxx Xxxxx, (ii) require any filing by Xxxxxx Xxxxx with, or any
permit, authorization, consent or approval to be obtained by Xxxxxx Xxxxx, any
court, arbitral tribunal, administrative agency or commission or other
governmental or regulatory authority or administrative agency or commission
whether domestic or foreign (a "Governmental Entity") (except where the failure
to obtain such permits, authorizations, consents or approvals or to make such
filings would not have a material adverse effect on the Acquired Assets), (iii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
amendment, cancellation or acceleration) under, or result in the creation of any
Encumbrance on any of the Acquired Assets pursuant to, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement, franchise, permit, concession or other instrument,
obligation, understanding, commitment or other arrangement to which Xxxxxx Xxxxx
is a party or by which any of them or any of their properties or assets may be
bound or affected (each, a "Contract"), or (iv) violate any order, writ,
injunction, decree, statute, ordinance, rule or regulation applicable to Xxxxxx
Xxxxx, except, in the case of clauses (iii) and (v), for violations, breaches or
defaults which would not, individually or in the aggregate, have a material
adverse effect on the Acquired Assets.
Section 3.4 Title to Acquired Assets. Except as set forth in Section 3.4 of
the Xxxxxx Xxxxx Disclosure Schedule, Xxxxxx Xxxxx directly or indirectly owns
or has a valid leasehold interest in the Acquired Assets, Intangible Acquired
Assets and the Acquired Intellectual Property, free and clear of any
Encumbrances. At the Closing, Elan-Polo will, directly or indirectly, acquire
good and marketable title to, or a valid leasehold interest in, the Acquired
Assets, Intangible Acquired Assets and the Acquired Intellectual Property, free
and clear of any Encumbrances
Section 3.5 Certain Contracts. Xxxxxx Xxxxx has delivered to Elan-Polo true
and correct copies of the X.X. Xxxxx Acquisition Agreement. Xxxxxx Xxxxx is not
in material breach of the agreement and such agreement is in full force and
effect and neither party to such agreement has made a claim to the other party
to the contrary.
Section 3.6 Litigation. Except as set forth in Section 3.6 of the Xxxxxx
Xxxxx Disclosure Schedule, there is no suit, claim, action, proceeding or, to
Xxxxxx Xxxxx'x Knowledge (as defined below) investigation pending or threatened,
against Xxxxxx Xxxxx before any Governmental Entity relating to the Acquired
Assets. Except as disclosed in Section 3.5 of the Xxxxxx Xxxxx Disclosure
Schedule, Xxxxxx Xxxxx is not subject to any outstanding order, writ, injunction
or decree, domestic or foreign, affecting the Acquired Assets or the
transactions contemplated hereunder. For the purposes of this Agreement, "Xxxxxx
Xxxxx'x Knowledge" shall mean the actual knowledge, after reasonable inquiry, of
the officers of Xxxxxx Xxxxx listed in Section 3.6 of the Xxxxxx Xxxxx
Disclosure Schedule.
Section 3.7 No Violation of Law. Except as set forth in Section 3.7 of the
Xxxxxx Xxxxx Disclosure Schedule, Xxxxxx Xxxxx'x portion of the Acquired Assets
is not in conflict with, or in default or violation of, or, to Xxxxxx Xxxxx'x
Knowledge, is under investigation with respect to or has been given notice or
been charged by any Governmental Entity with any violation of, any law, statute,
order, rule, regulation, ordinance or judgment, except for violations which do
not
11
relate to the Acquired Assets or which, in the aggregate, do not have a material
adverse effect on the Acquired Assets.
Section 3.8 Authorizations. Section 3.8 of the Xxxxxx Xxxxx Disclosure
Schedule sets forth a list of all permits, authorizations and waivers issued by
Governmental Authorities (collectively, "Authorizations") that are necessary for
Elan-Polo to be able to sell the Acquired Inventory. Except for those
Authorizations identified in Section 3.8 of the Xxxxxx Xxxxx Disclosure
Schedule, Xxxxxx Xxxxx has, and as of the Closing Date Elan-Polo will acquire,
all of the Authorizations. To Xxxxxx Xxxxx'x Knowledge, no event has occurred or
other fact exists with respect to the Authorizations that permits, or after
notice or lapse of time or both would permit, revocation or termination of any
of the Authorizations or would result in any other impairment of the rights of
the holder of any of the Authorizations. Xxxxxx Xxxxx has duly and timely
performed their respective obligations under the Authorizations in all material
respects. There is not pending or, to Xxxxxx Xxxxx'x Knowledge, threatened, any
application, petition, objection or other pleading with any Governmental Entity
which challenges or questions the validity of or any rights of the holder under
any Authorization.
Section 3.9 Acquired Trademarks. Schedule 1.1 of the Xxxxxx Xxxxx
Disclosure Schedule contains a complete and accurate list of all of the
trademarks necessary to sell the Acquired Inventory. The Acquired Trademarks do
not, to Xxxxxx Xxxxx'x Knowledge, conflict or infringe in any way with any
trademark right of any third party that, individually or in the aggregate, is
reasonably likely to have a material adverse effect on the Acquired Assets, and
there is no claim, suit, action or proceeding pending or to Xxxxxx Xxxxx'x
Knowledge threatened against Xxxxxx Xxxxx (a) alleging that use of the Acquired
Trademarks conflicts or infringes in any way with any third party's trademark
rights, or (b) challenging Xxxxxx Xxxxx'x ownership of or right to use or the
validity of any Acquired Inventory.
Section 3.10 Brokerage and Finder's Fees. Neither Xxxxxx Xxxxx nor any of
its affiliates has employed any broker, finder or agent, or agreed to pay or
incurred any brokerage fee, finder's fee or commission with respect to the
transactions contemplated by this Agreement, or dealt with anyone purporting to
act in the capacity of a broker, finder or agent with respect thereto, as a
result of which any claim for a fee can be asserted against Xxxxxx Xxxxx.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ELAN-POLO
Elan-Polo represents and warrant to Xxxxxx Xxxxx as follows:
Section 4.1 Organization.
(a) Elan-Polo is a corporation duly organized, validly existing and in
good standing under the laws of the State of Missouri and has all requisite
corporate power and authority to own, lease and operate its properties and
to carry on its business as now being conducted except where the failure to
be so organized, existing and in good standing or to have such power and
authority would not have a "material adverse effect on Elan-Polo" (as
defined below). Elan-Polo is duly qualified or licensed to do business and
in good standing in each jurisdiction in which the property owned, leased
or operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so
12
duly qualified or licensed and in good standing would not in the aggregate
have a material adverse effect on Elan-Polo.
(b) As used in this Agreement, any reference to any event, change or
effect having a "material adverse effect on Elan-Polo" means such event,
change or effect which is materially adverse to (i) the business,
properties, assets, results of operations or financial condition of
Elan-Polo and its subsidiaries, taken as a whole, or (ii) the ability of
Elan-Polo to consummate the transactions contemplated hereby.
Section 4.2 Authority. Elan-Polo has the requisite corporate power and
authority to execute and deliver this Agreement and the Elan-Polo Closing
Documents and to consummate the transactions contemplated hereby and thereby.
The execution, delivery and performance of this Agreement and the Elan-Polo
Closing Documents by Elan-Polo and the consummation by Elan-Polo of the
transactions contemplated hereby and thereby have been duly authorized by the
Boards of Directors of Elan-Polo, and no other corporate proceedings on the part
of Elan-Polo are necessary to authorize this Agreement and the Elan-Polo Closing
Documents (to the extent it will be a party thereto) or for Elan-Polo to
consummate the transactions so contemplated. This Agreement has been, and each
of the Elan-Polo Closing Documents will be, duly executed and delivered by
Elan-Polo (to the extent such agreement is not being entered into as of the date
hereof) will constitute a valid and binding obligation of Elan-Polo, enforceable
against Elan-Polo in accordance with its terms.
Section 4.3 Consents and Approvals; No Violations.
(a) Neither the execution, delivery or performance of this Agreement
by Elan-Polo or the consummation of the transactions contemplated hereby or
by the Elan-Polo Closing Documents nor compliance by Elan-Polo with any of
the provisions hereof or thereof will (i) conflict with or result in any
breach of any provision of the charter or by-laws of Elan-Polo, (ii)
require any filing by Elan-Polo with, or any permit, authorization, consent
or approval of, any Governmental Entity to be obtained by Elan-Polo, (iii)
result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement, franchise, permit, concession or other
instrument, obligation, understanding, commitment or other arrangement to
which Elan-Polo is a party or by which any of them or any of their
properties or assets may be bound or affected, or (iv) violate any order,
writ, injunction, decree, statute, ordinance, rule or regulation applicable
to Elan-Polo, except, in the case of clauses (iii) or (iv), for violations,
breaches or defaults which would not, individually or in the aggregate,
have a material adverse effect on Elan-Polo.
(b) Elan-Polo is not in conflict with, or in default or violation of,
any note, bond, mortgage, indenture, lease, license, contract, agreement,
franchise, permit, concession or other instrument, obligation,
understanding, commitment or other arrangement to which Elan-Polo is a
party or by which its properties or assets may be bound or affected, except
for any such conflicts, defaults or violations which have not had and are
not likely to have a material adverse effect on Elan-Polo.
13
Section 4.4 Litigation. There is no suit, claim, action, proceeding or, to
Elan-Polo's Knowledge (as defined below), investigation pending or threatened,
against Elan-Polo before any Governmental Entity which, if adversely determined,
individually or in the aggregate, would have a material adverse effect on
Elan-Polo. Elan-Polo is not subject to any outstanding order, writ, injunction
or decree, domestic or foreign, which, individually or in the aggregate, has had
or could reasonably be expected to have a material adverse effect on Elan-Polo
or relates to the transactions contemplated by this Agreement. For the purposes
of this Agreement, "Elan-Polo's Knowledge" shall mean the actual knowledge,
after reasonable inquiry, of the officers of Elan-Polo.
Section 4.5 Brokerage and Finder's Fees. Neither Elan-Polo nor any of its
affiliates has employed any broker, finder or agent, or agreed to pay or
incurred any brokerage fee, finder's fee or commission with respect to the
transactions contemplated by this Agreement, or dealt with anyone purporting to
act in the capacity of a broker, finder or agent with respect thereto, as a
result of which any claim for a fee can be asserted against Elan-Polo.
Section 4.6. Sufficient Funds and Credit Availability. Elan-Polo has
sufficient funds and credit availability to fund payment in full of the cash
portion of the Purchase Price anticipated to be due at Closing and to secure the
L/C upon the consummation of the transactions contemplated hereby.
Section 4.7 Reliance On Representations And Warranties. Elan-Polo
acknowledges that it enters into this Agreement and agrees to consummate the
transactions contemplated hereby in sole reliance on the express representations
and warranties contained in this Agreement and not upon any other information
furnished to Elan-Polo by Xxxxxx Xxxxx. ELAN-POLO FURTHER ACKNOWLEDGES THAT,
EXCEPT AS EXPRESSLY SET FORTH HEREIN, XXXXXX XXXXX MAKES NO REPRESENTATION OR
WARRANTY CONCERNING THE ACQUIRED ASSETS, INCLUDING AS TO THE QUALITY, CONDITION,
MERCHANTABILITY, SALABILITY, OBSOLESCENCE, WORKING ORDER OR FITNESS FOR A
PARTICULAR PURPOSE THEREOF. EXCEPT AS SO SET FORTH, THE ACQUIRED ASSETS ARE SOLD
TO ELAN-POLO "AS IS AND WHERE IS."
ARTICLE V
COVENANTS
Section 5.1 Conduct of Xxxxxx Xxxxx'x Business. During the period from the
date of this Agreement and continuing until the Closing Date, Xxxxxx Xxxxx
agrees that, except for the transactions expressly provided for in this
Agreement, or to the extent that Elan-Polo shall otherwise consent in writing:
(a) Ordinary Course. Xxxxxx Xxxxx shall conduct the operations of its
business that involve only the sale of products under the Acquired Brands
in the usual, regular and ordinary course consistent with past practice and
preserve substantially intact the relationships with customers and
suppliers relating to that portion of its business.
(b) Restrictions on Dispositions. Xxxxxx Xxxxx shall not sell, lease,
license, encumber or otherwise dispose of, or agree to sell, lease,
license, encumber or otherwise dispose of, any (i) Acquired Assets other
than the sale of inventory in the ordinary course of the business
14
consistent with past practice or (ii) Acquired Inventory at a price that is
substantially less than Xxxxxx Xxxxx'x published price for such products.
Section 5.2 Reasonable Efforts. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under this Agreement and under applicable
contracts, laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including satisfying all conditions
precedent that are under their respective control, and will promptly cooperate
with and furnish information to each other in connection with any such
requirements imposed upon any of them.
Section 5.3 Access to Information. Upon reasonable notice, Xxxxxx Xxxxx
shall afford to the officers, employees, accountants, counsel and other
representatives of Elan-Polo, access, during normal business hours during the
period prior to the Closing Date and for a reasonable period of time following
the Closing Date to the extent necessary for Elan-Polo to prepare or evaluate
any schedules or filings contemplated by this Agreement, to all its properties,
books, contracts, commitments and records and all other information related to
the Acquired Assets, the Assumed Liabilities as Elan-Polo may reasonably
request.
Section 5.4 Confidentiality. Any and all information which is not generally
known to the public which is exchanged between the parties in connection with
this Agreement, or which is directly or indirectly obtained by one party from
the other in connection with this Agreement, whether of a technical or business
nature, shall be considered to be confidential. The parties agree that
confidential information shall not be disclosed to any third party or parties
without the written consent of the other party. Each party shall take reasonable
measures to protect against nondisclosure of confidential information by its
officers and employees. Confidential information shall not include any
information (i) which is or becomes part of the public domain, (ii) which is
obtained from third parties who are not bound by confidentiality obligations or
(iii) which is required to be disclosed by law, regulation, legal process or the
rules of any state or federal regulatory agency or any national stock exchange.
It is further understood and agreed that money damages would not be a sufficient
remedy for any breach of this Section 5.4 and that the non-breaching party shall
be entitled to specific performance as a remedy for any such breach. Such remedy
shall not be deemed to be the exclusive remedy for such breach but shall be in
addition to all other remedies available hereunder, at law or in equity, to the
non-breaching party. The provisions of this section shall survive the
termination of this Agreement.
Section 5.5 Exclusivity. Xxxxxx Xxxxx shall not, and it shall cause its
agents, officers, partners, limited partners and all representatives, directly
or indirectly, not to: (a) solicit or initiate the submission of proposals or
offers from any entity or person for, (b) participate in any discussions
pertaining to or (c) furnish any information to any entity or person other than
Elan-Polo or its authorized agents relating to any acquisition or purchase of
the Acquired Assets other than Acquired Inventory in the ordinary course of
business.
Section 5.6 Employee Matters. At Elan-Polo's request, Xxxxxx Xxxxx shall
cooperate with Elan-Polo in identifying those salesmen and sales managers of
Xxxxxx Xxxxx who sell products under the Acquired Brands and who Elan-Polo may
wish to hire, either as employees or consultants and in facilitating the
employment or the engagement as consultants by Elan-Polo, after the Closing
Date, of such individuals, which Elan-Polo elects to employ or engage as a
15
consultant, including permitting Elan-Polo to interview and offer employment or
consulting agreements to such employees. The parties hereby acknowledge that
Elan-Polo is under no obligation whatsoever to employ any current or future
employees of Xxxxxx Xxxxx.
Section 5.7 Notification of Certain Matters. Each party shall give prompt
notice to the other of (a) the occurrence, or non-occurrence, of any event the
occurrence, or non-occurrence, of which would be reasonably likely to cause (i)
any representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect or (ii) any covenant, condition or agreement
made by such party in this Agreement not to be complied with or satisfied in any
material respect and (b) any failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder in any material respect; provided, however, that the delivery of any
notice pursuant to this Section 5.7 shall not limit or otherwise affect the
remedies available hereunder to the party receiving such notice.
Section 5.8 Fees and Expenses. Whether or not the transactions contemplated
by this Agreement are consummated, except as otherwise specifically provided for
in this Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
ARTICLE VI
CONDITIONS
Section 6.1 Conditions to Each Party's Obligation to Close. The respective
obligations of the parties to effect the transactions contemplated by this
Agreement are subject to the satisfaction, on or prior to the Closing Date, of
the following conditions:
(a) Government Approvals. All authorizations, consents, orders or
approvals of, or declarations or filings with, any Governmental Entity
shall have been obtained.
(b) No Action. No action, suit or proceeding by any Governmental
Entity before any court or governmental or regulatory authority shall be
pending or threatened against either party challenging the validity or
legality of the transactions contemplated by this Agreement.
Section 6.2 Conditions of Obligations of Elan-Polo. The obligations of
Elan-Polo to effect the transactions contemplated by this Agreement are subject
to the satisfaction, on or prior to the Closing Date, of the following
conditions unless waived by Xxxxxx Xxxxx:
(a) Representations and Warranties. The representations and warranties
of Xxxxxx Xxxxx set forth in this Agreement shall be true and correct in
all material respects as of the date hereof and as of the Closing Date as
though made on and as of the Closing Date.
(b) Performance of Obligations of Xxxxxx Xxxxx. Xxxxxx Xxxxx shall
have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date.
(c) Xxxxxx Xxxxx Closing Documents. Xxxxxx Xxxxx shall have executed
and delivered to Elan-Polo all Xxxxxx Xxxxx Closing Documents.
16
Section 6.3 Conditions of Obligations of Xxxxxx Xxxxx. The obligation of
Xxxxxx Xxxxx to effect the transactions contemplated by this Agreement is
subject to the satisfaction of the following conditions, on or prior to the
Closing Date, unless waived by Elan-Polo:
(a) Representations and Warranties. The representations and warranties
of Elan-Polo set forth in this Agreement shall be true and correct in all
material respects as of the date hereof, and as of the Closing Date as
though made on and as of the Closing Date.
(b) Performance of Obligations of Elan-Polo. Elan-Polo shall have
performed in all material respects all obligations required to be performed
by Elan-Polo under this Agreement at or prior to the Closing Date.
(c) Manufactures and Traders Trust And Other Third Party Consents.
Manufacturers and Traders Trust Company shall have consented to the
consummation of the transactions contemplated hereunder on terms and
conditions acceptable to Xxxxxx Xxxxx and all other third party consents
set forth in Schedule 3.3 shall have been obtained.
(d) Elan-Polo Closing Documents. Elan-Polo shall have executed and
delivered to Xxxxxx Xxxxx all of the Elan-Polo Closing Documents.
Section 6.4 If Conditions Not Satisfied. In the event that any of the
foregoing conditions of obligations of a party shall fail to have been
satisfied, such party may elect, in its sole discretion, to consummate the
transactions contemplated by this Agreement despite such failure, in which event
such party shall be deemed to have waived any claim for damages, Losses or other
relief arising from or in connection with such failure, unless otherwise agreed
in a writing executed by both parties.
ARTICLE VII
POST-CLOSING COVENANTS
Section 7.1 Returned Inventory. If, following the Closing, any Xxxxxx Xxxxx
customers return to Xxxxxx Xxxxx any product that, immediately prior to the
Closing, would have constituted Carry-over A styles or Carry-over B styles in
the Acquired Inventory on the Closing Date (the "Returned Inventory"), then
Xxxxxx Xxxxx shall have the right by written notice to Elan-Polo to require
Elan-Polo to purchase, and upon such written notice, Elan-Polo shall purchase
from Xxxxxx Xxxxx, such Returned Inventory for a purchase price equal to the
amount of the product returned multiplied by the applicable purchase price under
Section 2.2(a)(i). The principal amount of the Note referred to above in Section
2.2(a)(vi)(B) shall be adjusted to include the Returned Inventory purchase
price. Xxxxxx Xxxxx shall be responsible for all handling, reboxing, or
restocking expense associated with any Returned Inventory.
Section 7.2 Books and Records.
(a) Elan-Polo shall not within six (6) years after the Closing Date
dispose of or destroy any business records or files related to the Acquired
Assets for periods prior to the Closing Date, without first offering to
turn over possession thereof to Xxxxxx Xxxxx by written notice at least
thirty (30) days prior to the proposed dates of such disposition or
destruction.
17
(b) From and after the Closing Date, to the extent reasonably required
by in connection with the preparation of tax returns or other legitimate
purposes specified in writing, Elan-Polo shall allow Xxxxxx Xxxxx and its
agents access to all business records and files related to the Acquired
Assets for all periods prior to the Closing Date, upon reasonable advance
notice during normal working hours, and Xxxxxx Xxxxx shall have the right,
at its own expense, to make copies of any such records and files, provided,
however, that any such access or copying shall be had or done in such a
manner so as not to interfere with the normal conduct of business.
Section 7.3 Xxxxxx Xxxxx Corporate Name. At the Closing, Elan-Polo shall be
deemed to grant to Xxxxxx Xxxxx a royalty free, worldwide, perpetual and
non-terminable license to use the name "Xxxxxx Xxxxx" solely in its corporate
name. Xxxxxx Xxxxx shall agree to use its reasonable best efforts to effectuate
a corporate name change to a name sufficiently dissimilar from "Xxxxxx Xxxxx" as
soon as reasonably practicable after the Closing, but in no event later than
twelve (12) months following the Closing.
Section 7.4 Bulk Sales Law. Elan-Polo hereby waives compliance with any
bulk sales law in connection with the transactions contemplated by this
Agreement. Xxxxxx Xxxxx agrees to pay and discharge all claims of creditors
which may be asserted against Elan-Polo by reason of Xxxxxx Xxxxx'x
non-compliance with the provisions of the bulk sales law of any state (excluding
Assumed Liabilities) which may require bulk sales law compliance on account of
the provisions herein and the transactions contemplated hereby.
Section 7.5 Further Assurances; Subsequent Transfers. From time to time,
each of the parties hereto will execute and deliver such further instruments and
will take such other actions as Elan-Polo, on the one hand, or Xxxxxx Xxxxx, on
the other hand, may reasonably request in order to effectuate the purposes of
this Agreement and to carry out the terms hereof; provided, however, that
Elan-Polo shall not agree to amend or otherwise modify any contract constituting
a part of the Acquired Assets in connection with the obtaining of any such
consent in any manner which would place any additional restraints or
requirements on Xxxxxx Xxxxx or Elan-Polo or which would increase any of the
payments to be made by Xxxxxx Xxxxx thereunder without the written consent of
Xxxxxx Xxxxx. Without limiting the generality of the foregoing, at any time and
from time to time after the Closing Date, (i) at the request of Elan-Polo,
Xxxxxx Xxxxx will execute and deliver such other instruments of transfer, and
take such action as Elan-Polo may reasonably deem necessary in order to
effectively transfer, convey and assign to Elan-Polo all of the Acquired Assets,
to put Elan-Polo in actual possession and operating control thereof and to
permit Elan-Polo to exercise all rights with respect thereto (including, without
limitation, rights under contracts and other arrangements as to which the
consent of any third party to the transfer thereof shall not have previously
been obtained) and to properly assume and discharge the related Assumed
Liabilities, and (ii) at the request of Xxxxxx Xxxxx, Elan-Polo will execute and
deliver such other instruments and agreements, and take such action, as Xxxxxx
Xxxxx may reasonably deem necessary in order ensure that Elan-Polo has assumed
from Xxxxxx Xxxxx all of the Assumed Liabilities and to confirm Xxxxxx Xxxxx'x
right, title and interest in and to the Retained Assets.
18
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Survival of Representations and Warranties.
(a) Except for Sections 3.1, 3.2, 4.1, 4.2 and 4.7, all
representations and warranties of the parties set forth in this Agreement
shall terminate and expire on the first anniversary of the Closing. Notice
with respect to any claim in respect of any inaccuracy in or breach of any
representation or warranty shall be in writing, shall state specifically
the particulars of any inaccuracy or breach and shall be given to the party
against which such claim is asserted. Any representation or warranty shall
survive the time it would otherwise terminate pursuant to this Section 8.1
to the extent that the party claiming indemnification for such breach shall
have delivered to the other party written notice setting forth with
reasonable specificity the basis of such claim prior to the expiration of
such time pursuant to this Section 8.1; provided, that after the delivery
of any such notice, the party claiming indemnification shall expeditiously
pursue the resolution of such claim.
(b) All covenants and agreements made by the parties to this Agreement
which contemplate performance following the Closing Date, including, but
not limited to, Sections 2.2(a)(v), 2.2(b) and 7.4, shall survive the
Closing Date. All other covenants and agreements shall not survive the
Closing Date and shall terminate as of the Closing.
Section 8.2 Xxxxxx Xxxxx'x Indemnification. Subject to the terms and
conditions herein, Xxxxxx Xxxxx hereby agrees to indemnify and hold Elan-Polo
and its directors, officers, stockholders, employees and agents ("Xxxxxx Xxxxx
Indemnitees") harmless from all costs, expenses and damages (including, without
limitation, interest, penalties and reasonable attorneys' fees and disbursements
incurred in enforcing its rights hereunder) ("Losses") arising out of or
resulting from or caused by (a) any breach of Xxxxxx Xxxxx'x representations,
warranties or covenants contained herein or (b) any liabilities of Xxxxxx Xxxxx,
except for the Assumed Liabilities.
Section 8.3 Elan-Polo's Indemnification. Subject to the terms and
conditions herein, Elan-Polo hereby agrees to indemnify, defend and hold Xxxxxx
Xxxxx and its directors, officers, stockholders, employees and agents
("Elan-Polo Indemnitees") harmless from all Losses resulting from or caused by
(a) any breach of Elan-Polo's representations, warranties or covenants contained
herein or (b) any Assumed Liabilities.
Section 8.4 Procedures.
(a) If any Xxxxxx Xxxxx Indemnitee or Elan-Polo Indemnitee
(collectively, an "Indemnified Party") believes that it has suffered or
incurred or will suffer or incur any Losses for which it is entitled to
indemnification under this Article VIII, such Indemnified Party shall so
notify the party or parties from whom indemnification is being claimed (the
"Indemnifying Party") with reasonable promptness and reasonable
particularity in light of the circumstances then existing. If any action at
law or suit in equity is instituted by or against a third party with
respect to which any Indemnified Party intends to claim any Losses, such
Indemnified Party shall promptly notify the Indemnifying Party of such
action or suit. The failure of an Indemnified Party to give any notice
required by this Section shall not affect any of such party's rights under
this Article VIII or otherwise except and to the extent that such failure
is actually prejudicial to the rights or obligations of the Indemnified
Party.
19
(b) The Indemnified Party shall have the right to conduct and control,
through counsel of its choosing, the defense of any third party claim,
action or suit, and the Indemnified Party may compromise or settle the
same, provided that the Indemnified Party shall give the Indemnifying Party
advance notice of any proposed compromise or settlement and the
Indemnifying Party shall have consented to the proposed compromise or
settlement. The Indemnified Party shall permit the Indemnifying Party to
participate in the defense of any such action or suit through counsel
chosen by the Indemnifying Party, provided that the fees and expenses of
such counsel shall be borne by the Indemnifying Party. If the Indemnified
Party permits the Indemnifying Party to undertake, conduct and control the
conduct and settlement of such action or suit, the Indemnifying Party shall
not thereby permit to exist any Encumbrance upon any asset of the
Indemnified Party as a result of the claim being indemnified; the
Indemnifying Party shall not consent to any settlement that does not
include as an unconditional term thereof the giving of a complete release
from liability with respect to such action or suit to the Indemnified
Party. The Indemnifying Party shall permit the Indemnified Party to
participate in any settlement negotiations through counsel chosen by the
Indemnified Party (at its own cost and expense); and the Indemnifying Party
shall agree promptly to reimburse the Indemnified Party for the full amount
of any Losses including fees and expenses of counsel for the Indemnified
Party incurred after giving the foregoing notice to the Indemnifying Party
and prior to the assumption of the conduct and control of such action or
suit by the Indemnifying Party.
Section 8.5 Limitations on Indemnification Rights.
(a) Threshold Amount. An Indemnifying Party under this Article VIII
shall not be liable to the Indemnified Party for any misrepresentation or
breach of warranty unless and until the Losses therefrom exceed $10,000 in
the aggregate, PROVIDED, HOWEVER, that this limitation shall not apply with
respect to the indemnification otherwise due for any third-party claims.
(b) Maximum Amount. Notwithstanding anything herein, the maximum
liability of Xxxxxx Xxxxx hereunder for any breach of any representation or
warranty shall be the aggregate purchase price attributable to the Acquired
Inventory.
(c) Time Period. The indemnification provisions under this Article
VIII with respect solely to representations and warranties which expire
after one year shall continue for one year from the Closing Date and shall
terminate upon expiration of such period, PROVIDED, HOWEVER, that this
limitation shall not apply with respect to the indemnification otherwise
due for any third-party claims. Any claim or demand made under Section 8.1
against Xxxxxx Xxxxx or Elan-Polo by the other of which notice has been
given in good faith pursuant to Section 8.4 at or prior to the expiration
of the related period shall continue to be subject to indemnification
hereunder notwithstanding the expiration of such period.
Section 8.6 Exclusivity. The parties hereby acknowledge and agree that as
of and after the Closing, their sole and exclusive remedy with respect to any
and all claims relating to the breach of representations and warranties under
this Agreement shall be pursuant to the indemnification provisions set forth in
this Article VIII. In furtherance of the foregoing, the parties hereby waive, to
the fullest extent permitted under applicable law, any and all rights, claims
and causes of action it may have against the other arising under or based upon
any federal, state or local statute, law ordinance, rule or regulation
(including any such rights, claims
20
or causes of action arising under or based upon common law or otherwise) with
respect to all such claims. Notwithstanding anything else contained in this
Article VIII, neither party shall be entitled to consequential damages
hereunder.
ARTICLE IX
TERMINATION AND AMENDMENT
Section 9.1 Termination. This Agreement may be terminated at any time prior
to the Closing Date as follows:
(a) by mutual written consent of Elan-Polo and Xxxxxx Xxxxx;
(b) by either party if the Closing shall not have occurred on or
before December 31, 2001 (unless the failure to so consummate the Closing
by such date shall be due to the action or failure to act of the party
seeking to terminate this Agreement, which action or failure to act
constitutes a breach of this Agreement);
(c) by Elan-Polo if (i) there has been a breach on the part of Xxxxxx
Xxxxx in the representations, warranties or covenants of Elan-Polo set
forth herein, or (ii) any failure on the part of Xxxxxx Xxxxx to comply
with its obligations hereunder, such that, in any such case, any of the
conditions to the Closing set forth in Section 6.1 or 6.2(a) and (b) hereof
could not be satisfied on or prior to December 31, 2001; or
(d) by Xxxxxx Xxxxx if (i) there has been a breach on the part of
Elan-Polo in the representations, warranties or covenants of Elan-Polo set
forth herein, or (ii) any failure on the part of Elan-Polo to comply with
its obligations hereunder, such that, in any such case, any of the
conditions to the Closing set forth in Section 6.1 or 6.3(a) and (b) hereof
could not be satisfied on or prior to December 31, 2001.
Section 9.2 Effect of Termination. In the event of a termination of this
Agreement as provided in Section 9.1, this Agreement shall forthwith become void
and there shall be no liability or obligation on the part of Elan-Polo, Xxxxxx
Xxxxx or their affiliates or respective officers or directors, other than the
provisions of Section 5.4; provided, however, that any such termination shall
not relieve any party from liability for any breach of this Agreement existing
as of the date of termination.
ARTICLE X
MISCELLANEOUS
Section 10.1 Amendment. This Agreement may be amended by the parties hereto
at any time by an instrument in writing signed on behalf of each of the parties
hereto.
Section 10.2 Extension; Waiver. At any time prior to the Closing Date, the
parties hereto may to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto or (iii) waive compliance
with any of the agreements or conditions contained here. Any agreement
21
on the part of a party hereto to any such extension or waiver shall be valid
only if set forth in a written instrument signed on behalf of such party.
Section 10.3 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given on the date delivered if delivered
personally (including by reputable overnight courier) or on the date received if
mailed by registered or certified mail (return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to Xxxxxx Xxxxx, to:
0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Chief Executive Officer
with a copy to:
Xxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Forth, Esq.
(b) if to Elan-Polo, to:
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, President
with a copy to:
Xxxx, Xxxx & White
X.X. Xxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxx, Xx.
Section 10.4 Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include," "includes" or "including" are used
in this Agreement they shall be deemed to be followed by the words "without
limitation." The phrases "the date of this Agreement," "the date hereof" and
terms of similar import, unless the context otherwise requires, shall be deemed
to refer to the date first set forth in the beginning of this Agreement.
Section 10.5 Counterparts. This Agreement may be executed in counterparts,
all of which shall be considered one and the same agreement and shall become
effective when a counterpart has been signed by each of the parties and
delivered to each of the other parties, it being understood that all parties
need not sign the same counterpart.
22
Section 10.6 Entire Agreement; No Third Party Beneficiaries. This Agreement
(including the documents and the instruments referred to herein) (a) constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof and thereof, and (b) is not intended to confer upon any person other than
the parties hereto and thereto any rights or remedies hereunder or thereunder.
Section 10.7 Governing Law. This Agreement has been executed and delivered
in the State of New York and shall be governed and construed in accordance with
the laws of the State of New York without regard to any applicable conflicts of
law principles.
Section 10.8 Specific Performance. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
Section 10.9 Publicity. Except as otherwise required by law or the Nasdaq
rules in the case Xxxxxx Xxxxx for so long as this Agreement is in effect,
neither Elan-Polo nor Xxxxxx Xxxxx shall issue or cause the publication of any
press release or other public announcement with respect to the transactions
contemplated by this Agreement without the consent of the other party, which
consent shall not be unreasonably withheld or delayed.
Section 10.10 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. This Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns.
[SIGNATURE PAGE FOLLOWS]
23
IN WITNESS WHEREOF, Elan-Polo and, Xxxxxx Xxxxx have caused Acquisition
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
ELAN-POLO, INC.
By:
--------------------------------------------
Name:
Title:
XXXXXX XXXXX COMPANY
By:
--------------------------------------------
Name:
Title:
List of Exhibits
Exhibit A - Schedule of Defined Terms
Exhibit B - Transition Services Agreement
Exhibit C - Lease Agreement
Exhibit D - Assignment and Assumption Agreement
Exhibit E - Trademark Assignments
Exhibit F - Acquired Inventory Product Style Classification
Exhibit G - Xxxx of Sale
Exhibit H - Promissory Note
Exhibit I - Irrevocable Letter of Credit
Exhibit J - Collateral Assignment
24
