Exhibit 10.20
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT ("Agreement"), dated as of December 31,
1998, by and among ABLE ENERGY COMPANY, INC., a Delaware corporation ("Able" or
"Seller"), ABLE OIL COMPANY XXXXXXXXXX, INC., a Pennsylvania corporation (the
"Company"), and XXXXXX X. XXXXXXX, an adult individual residing in the
Commonwealth of Pennsylvania (the "Buyer"). Certain capitalized terms used
herein shall have the meaning given such terms in Section 8.11 below,
PREAMBLE
A. The Company is and has been a corporation engaged in the operation of a
heating oil and fuel distribution business serving Philadelphia and surrounding
counties in Pennsylvania (the "Business").
B. Seller owns all of the issued and outstanding shares of the capital
stock of the Company (the "Company Shares").
C. Seller wishes to sell to Buyer, and Buyer wishes to purchase from
Seller, the Company Shares, all on the terms and conditions hereinafter set
forth, and Seller or its Affiliate and the Company desire to enter into a
certain franchise agreement in connection therewith.
NOW, THEREFORE, in consideration of the mutual covenants of the parties as
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
SALE OF STOCK
Seller, in reliance upon the representations and warranties of Buyer
contained herein and on the terms and conditions herein set forth, hereby agrees
to sell, assign, transfer, convey and deliver to Buyer at the Closing all of its
right, title and interest in and to all of the Company Shares. Buyer, in
reliance upon the representations and warranties of Seller contained herein and
on the terms and conditions hereinafter set forth, hereby agrees to purchase the
Company Shares from Seller at the Closing for a purchase price as provided in
Article 2 hereof.
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ARTICLE 2
CONSIDERATION AND MANNER OF PAYMENT
2.1 Purchase Price. The aggregate purchase price for the Company Shares
(the "Purchase Price") is One Hundred and Forty Thousand Dollars (U.S.$140,000)
to be paid as provided for in Section 2.2.
2.2 Payment of Purchase Price. The Purchase Price shall be paid in
accordance with a Promissory Note the (the "Note") to be executed and delivered
by Buyer at the Closing. The Note shall be in the original principal amount of
the Purchase Price and shall bear interest as set forth therein. A form of the
Note is attached hereto as Exhibit 2.2.
2.3 Pledge and Security Agreement. The Company Shares and the assets of
the Business to be purchased hereby shall be subject to a pledge (with respect
to the Company Shares) and a grant of a security interest (in the assets of the
Business) to the Seller to secure the Buyer's obligations under the Note. The
terms of the pledge shall be set forth in a Pledge and Security Agreement
("Pledge Agreement"), a form of which is attached hereto as Exhibit 2.3.
ARTICLE 3
SELLER'S REPRESENTATIONS AND WARRANTIES
Seller and the Company (collectively, the "Seller Parties") hereby
represent and warrant to Buyer as of the Closing Date as follows:
3.1 Seller Parties Authority. The Company and the Seller each has full
corporate power, right and authority, to enter into and perform its respective
obligations under this Agreement and each of the Transaction Documents to which
each of them is a party. This Agreement and each of the Transaction Documents to
which a Seller Party is a party have been duly executed and delivered by each
Seller Party, and constitute the valid and binding obligations, enforceable
against such Seller Party in accordance with theft respective terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' fights and remedies generally, and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
3.2 Organization and Qualification of the Company. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the Commonwealth of Pennsylvania, The Company has full corporate power
and authority to carry on its businesses as it is now being conducted and to own
or hold under lease the properties and assets it now owns or holds under lease.
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3.3 Subsidiaries. The Company does not have, directly or indirectly, any
ownership in any Person.
3.4 Articles of Incorporation, Bylaws, Officers and Directors. Complete
and correct copies of the Company's charter documents and all amendments thereof
to date, certified by the Secretary of the Commonwealth of Pennsylvania, and the
bylaws as amended to date, certified by an officer of the Company have been or
are being delivered to Buyer prior to or at the Closing. Schedule 3.4 contains a
complete and correct list of all of the officers and directors of the Company
immediately prior to the Closing.
3.5 Capital Stock. The Company has 1,000 shares of Common Stock
authorized, of which [____] shares are issued and outstanding. All of the issued
and outstanding shares of capital stock of the Company comprise the Company
Shares and are owned by the Seller.
3.6 Options, etc. Other than the Company Shares, the Company does not have
outstanding any stock or other securities convertible into or exchangeable for
shares of its capital stock or containing profit participation features, and the
Company does not have outstanding any options, warrants or rights to subscribe
for or to purchase its capital stock or any stock or securities convertible into
or exchangeable for its capital stock and there is no obligation, commitment or
agreement of any character to which any Seller Party is a party, by which the
Company is obligated to issue, deliver or sell or cause to be issued, delivered
or sold, additional shares of capital stock of the Company or obligating Company
to grant, extend, accelerate the vesting of or enter in to any such option,
warrant, equity security, call right, commitment or agreement. The Company is
not subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its capital stock or any warrants,
options or other rights to acquire its capital stock. There are no voting
agreements, voting trusts or other agreements (including, without limitation,
contractual or statutory preemptive rights or cumulative voting rights),
commitments or understandings with respect to the voting or transfer of the
capital stock of the Company.
3.7 Title to Company Shares. Seller is the beneficial and record owner of
all the outstanding Company Shares, free and clear of any Liens whatsoever,
other than any transfer restrictions that may apply under federal and state
securities laws. The Seller has good and marketable title to the Company Shares.
Upon consummation of the transactions provided for in this Agreement in
accordance with the terms hereof, Buyer will hold good and marketable title to
all of the Company Shares, free and clear of any Liens whatsoever, other than
transfer restrictions under federal and state securities laws.
3.8 Financial Statements. Seller has previously delivered to Buyer audited
consolidated financial statements of the Company for the years ended December
31, 1996, 1997 and the six months ended June 30, 1998 ("Financial Statements").
Each of the Financial Statements is complete and correct in all material
respects, is consistent with the books and records of the Company (which, in
turn, are accurate and complete in all material respects) and
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fairly presents the Company's financial condition, assets and liabilities as of
their respective dates and the results of operations and cash flows for the
periods related thereto in accordance with GAAP, except that the interim
Financial Statements lack the footnote disclosure and normal recurring accruals
otherwise required by GAAP, none of which, if provided, would reflect a material
adverse change in the operations or financial condition of the Company.
3.9 Compliance with Applicable Laws. Each Seller Party is in material
compliance with all applicable laws, ordinances, statutes, rules, regulations
and orders promulgated by any federal, state or local governmental body or
agency relating to the Business and the operation of the Company.
3.10 Intellectual Property. Other than the Company's corporate name, the
Company owns no intellectual property. All such intellectual property used in
the Business is owned by and licensed from the Seller.
3.11 Transaction Not a Breach. Neither the execution and delivery of the
Transaction Documents to which each Seller Party is party, nor the fulfillment
of or compliance by each Seller Party with the terms or provisions thereof, will
result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in a violation of, the corporate charter or bylaws of
Seller or the Company, or any agreement, contract, instrument, order, judgment
or decree to which Seller or the Company is a party or by which their respective
assets are bound, or violate any provision of any applicable law, statute, rule
or regulation or any order, decree, writ or injunction of any court or
governmental entity which affects the assets or business of Seller or the
Company.
3.12 No Consents. No consent from or approval of any court, governmental
entity or any other person is necessary in connection with the execution and
performance by Seller of the Transaction Documents to which it is a party, or
the transactions contemplated thereby (and the Exhibits hereto); and the
consummation of the transactions contemplated by the Transaction Documents.
3.13 No Misrepresentation. None of the representations and warranties of
Seller set forth in this Agreement, in any of the certificates, schedules,
lists, documents, exhibits, or other instruments delivered, or to be delivered,
to Buyer by Seller, his Affiliates or representatives, as contemplated by any
provision hereof (including, without limitation, the Transaction Documents),
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained herein or therein not misleading.
ARTICLE 4
BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer hereby represents and warrants to Seller as of the Closing Date as
follows:
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4.1 Authority and Enforceability. Buyer is an individual resident in the
Commonwealth of Pennsylvania with full power and competency to enter into and
perform his obligations under this Agreement and each of the Transaction
Documents to which he is a party and to execute, deliver and perform his
obligations under this Agreement. This Agreement and each of the Transaction
Documents to which Buyer is a party have been duly executed and delivered by
Buyer and are the valid and binding obligations of Buyer and are enforceable
against Buyer in accordance with their respective terms. No permits, approvals
or consents of or notifications to (i) any governmental entities or (ii) any
other Persons are necessary in connection with the execution, delivery and
performance by Buyer of this Agreement and the Transaction Documents and the
consummation by Buyer of the transactions contemplated hereby or thereby.
4.2 Transaction Not a Breach. The execution, delivery and performance of
this Agreement and the Transaction Documents by Buyer will not violate or
conflict with, or result in the breach of any of the terms, conditions, or
provisions of any contract, agreement, mortgage, or other instrument or
obligation of any nature to which Buyer is a party or by which Buyer is bound.
4.3 No Misrepresentation. None of the representations and warranties of
Buyer set forth in this Agreement or in any of the certificates, schedules,
lists, documents, exhibits, or other instruments delivered, or to be delivered,
to the Seller as contemplated by any provision hereof (including, without
limitation, the Transaction Documents), contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
ARTICLE 5
CLOSING
5.1 Time and Place. The closing of the transactions that are the subject
of this Agreement (the "Closing") shall occur at the offices of the Buyer, at
10:00 a.m. on December 31, 1998 (the "Closing Date") or at such other time or
place as the parties hereto shall mutually agree.
5.2 Deliveries of the Seller. At the Closing, Seller will execute and
deliver or cause to be executed and delivered to Buyer:
(a) a non-negotiable copy of the certificates representing the
Company Shares (the originals of which shall remain in the custody of Seller
pursuant to the Pledge Agreement);
(b) Certificates of Good Standing, dated not more than five (5) days
prior to the Closing Date, with respect to the Company, issued by the Secretary
of the Commonwealth of Pennsylvania and by the Secretary of State of Delaware.
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(e) a Secretary's Certificate of the Company, together with a
certified copy of the Company's Certificate of Incorporation, and copies of the
Bylaws and the resolutions of the Board of Directors of the Company authorizing
the execution and delivery of this Agreement and the Transaction Documents and
the performance of the Company's obligations hereunder and thereunder, each such
item certified by the secretary of the Company as having been duly and validly
adopted and in full force and effect;
(f) the written resignation of all the officers and directors of the Company,
effective as of the Closing;
(g) all minute books, stock ledgers and similar corporate records of the
Company;
(h) a Franchise Agreement duly executed by Able;
(i) all records, customer lists, sales records, stationary, printed forms,
business records, promotional materials, purchase orders and sales records used
in the Business; and
(j) such other documents and instruments as Buyer or its counsel reasonably
shall deem necessary to consummate the transactions contemplated hereby.
5.3 Deliveries of Buyer. At the Closing, Buyer will deliver to Seller
simultaneously with the delivery of the items referred to in Section 5.2 above:
(a) the executed Note evidencing the payment obligation of the Purchase Price;
(b) a duly executed copy of the Pledge Agreement;
(c) a duly executed Franchise Agreement and any related documents in connection
therewith;
(d) two duly executed UCC-1 Financing Statements which shall be filed together
with Appendix A to the Pledge Agreement to be filed in the appropriate state or
local agencies in order to perfect Seller's security interest granted by Buyer
in and to the collateral described in Appendix A;
(e) such other documents and instruments as Buyer or its counsel reasonably
shall deem necessary to consummate the transactions contemplated hereby.
ARTICLE 6
POST-CLOSING COVENANTS
6.1 Indemnification.
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6.1.1 Indemnification by Seller. From and after the Closing, Seller
agrees to indemnify, defend and save Buyer and the Company and their respective
Affiliates and Plan Affiliates, and each of their respective officers,
directors, employees, agents, Employee Benefit Plans, and fiduciaries, plan
administrators or other parties dealing with any such plans (each, a "Buyer
Indemnified Party"), forever harmless from and against, and to promptly pay to a
Buyer Indemnified Party or reimburse a Buyer Indemnified Party for, any and all
liabilities (whether contingent, fixed or unfixed, liquidated or unliquidated,
or otherwise), obligations, deficiencies, demands, claims, suits, actions, or
causes of action, assessments, losses, costs, expenses, interest, fines,
penalties, actual or punitive damages or costs or expenses of any and all
investigations, proceedings, judgments, environmental analyses, remediations,
settlements and compromises (including reasonable fees and expenses of
attorneys, accountants and other experts) (individually and collectively, the
"Losses") sustained or incurred by any Buyer Indemnified Party relating to,
resulting from, arising out of or otherwise by virtue of any of the following:
(a) any misrepresentation or breach of a representation or warranty
made herein or in the Transaction Documents by Seller or any one of or its
respective Affiliates or non-compliance with or breach by any of them of any of
the covenants or agreements contained in this Agreement or the Transaction
Documents to be performed by Seller, or any of its respective Affiliates;
(b) any violations of or obligations under any Environmental and
Safety Requirements to the extent existing or arising on or prior to the Closing
Date;
(c) any action, demand, proceeding, investigation or claim (whenever
made) by any third party (including governmental agencies) against or affecting
Buyer or the Company which, if successful, would give rise to, evidence or
demonstrate the existence of or relate to a misrepresentation or breach of any
of the representations, warranties or covenants of Seller or its Affiliates;
(d) any action, demand, proceeding, investigation or claim (whenever
made) by any third party against or affecting Buyer or the Company relating to
any personal injury or property damage caused, or alleged to be caused, by any
goods sold, delivered or serviced by the Company prior to the Closing;
(e) any assertion against the Company or Buyer of Excluded
Liabilities; or
(f) any claim for payment of fees and/or expenses as a broker or
finder in connection with the origin, negotiation, execution or consummation of
this Agreement based upon any alleged agreement between the claimant and the
Seller, or the Company.
6.1.2 Indemnification by Buyer. From and after the Closing, Buyer
and the Company, jointly and severally, agree to indemnify, defend and save
Seller and their respective Affiliates, and their respective officers,
directors, employees, trustees and agents (each, a "Seller
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Indemnified Party") forever harmless from and against, and to promptly pay to a
Seller Indemnified Party or reimburse a Seller Indemnified Party for, any and
all Losses actually sustained or incurred by any Seller Indemnified Party
relating to, resulting from, arising out of or otherwise by virtue of any of the
following:
(a) any misrepresentation or breach of a representation or warranty
made herein or in the Transaction Documents by Buyer, or non-compliance with or
breach by Buyer of any of the covenants or agreements contained in this
Agreement or the Transaction Documents to be performed by Buyer or any of its
Affiliates;
(b) any action, demand, proceeding, investigation or claim (whenever
made) by any third party (including governmental agencies) against or affecting
Seller or its Affiliates which, if successful, would give rise to or evidence
the existence of or relate to a misrepresentation or breach of any of the
representations, warranties or covenants of Buyer; or
(c) any claim for payment of fees and/or expenses as a broker or
finder in connection with the origin, negotiation, execution or consummation of
this Agreement based upon any alleged agreement between the claimant and Buyer.
6.1.3 Indemnification Procedure for Third Party Claims. In the event
that subsequent to the Closing any person or entity entitled to indemnification
under this Agreement (an "Indemnified Party") asserts a claim for
indemnification or receives notice of the assertion of any claim or of the
commencement of any action or proceeding by any entity that is not a party to
this Agreement or an Affiliate of a party to this Agreement (including, but not
limited to any domestic or foreign court or governmental authority, federal,
state or local) (a "Third Party Claim") against such Indemnified Party, against
which a party to this Agreement is required to provide indemnification under
this Agreement (an "Indemnifying Party"), the Indemnified Party shall give
written notice together with a statement of any available information regarding
such claim to the Indemnifying Party within 60 days after learning of such claim
(or within such shorter time as may be necessary to give the Indemnifying Party
a reasonable opportunity to respond to such claim). The Indemnifying Party shall
have the right, upon written notice to the Indemnified Party (the "Defense
Notice") within 30 days after receipt from the Indemnified Party of notice of
such claim, which notice by the Indemnifying Party shall specify the counsel it
will appoint to defend such claim ("Defense Counsel"), to conduct at its expense
the defense against such claim in its own name, or if necessary in the name of
the Indemnified Party; provided, however, that the Indemnified Party shall have
the right to approve the Defense Counsel, which approval shall not be
unreasonably withheld, and in the event the Indemnifying Party and the
Indemnified Party cannot agree upon such counsel within ten days after the
Defense Notice is provided, then the Indemnifying Party shall propose an
alternate Defense Counsel, which shall be subject again to the Indemnified
Party's reasonable approval. If the parties still fail to agree on Defense
Counsel, then, at such time, each of the Indemnifying and Indemnified Parties
shall choose an arbitrator who, in turn shall select a third arbitrator, and the
three arbitrators shall select Defense Counsel.
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(a) In the event that the Indemnifying Party shall fail to give the
Defense Notice, it shall be deemed to have elected not to conduct the defense of
the subject claim, and in such event the Indemnified Party shall have the right
to conduct such defense in good faith and to compromise and settle the claim
without prior consent of the Indemnifying Party and the Indemnifying Party will
be liable for all costs, expenses, settlement amounts or other Losses reasonably
paid or incurred in connection therewith.
(b) In the event that the Indemnifying Party does deliver a Defense
Notice and thereby elects to conduct the defense of the subject claim, the
Indemnified Party will cooperate with and make available to the Indemnifying
Party such assistance and materials as it may reasonably request, all at the
expense of the Indemnifying Party, and the Indemnified Party shall have the
right at its expense to participate in the defense assisted by counsel of its
own choosing, provided tat the Indemnified Party shall have the right to
compromise and settle the claim only with the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Indemnified Party, the
Indemnifying Party will not enter into any settlement of any Third Party Claim
or cease to defend against such claim, if pursuant to or as a result of such
settlement or cessation, (i) injunctive or other equitable relief would be
imposed against the Indemnified Party, or (ii) such settlement or cessation
would lead to liability or create any financial or other obligation on the part
of the Indemnified Party for which the Indemnified Party is not entitled to
indemnification hereunder.
(d) The Indemnifying Party shall not be entitled to control, and the
Indemnified Party shall be entitled to have sole control over, the defense or
settlement of any claim to the extent that claim seeks an order, injunction or
other equitable relief against the Indemnified Party which, if successful, could
materially interfere with the business, operations, assets, condition (financial
or otherwise) or prospects of the Indemnified Party (and the reasonable cost of
such defense shall constitute an amount for which the Indemnified Party is
entitled to indemnification hereunder).
(e) If a decision is made to settle a Third Party Claim, which offer
the Indemnifying Party is permitted to settle under this Section 6.1.3, and the
Indemnifying Party desires to accept and agree to such offer, the Indemnifying
Party will give written notice to the Indemnified Party to that effect. If the
Indemnified Party fails to consent to such firm offer within 15 calendar days
after its receipt of such notice, the Indemnified Party may continue to contest
or defend such Third Party Claim and, in such event, the maximum liability of
the Indemnifying Party as to such Third Party Claim will not exceed the amount
of such settlement offer, plus costs and expenses paid or incurred by the
Indemnified Party through the end of such 15-day period.
(f) Any judgment entered or settlement agreed upon in the manner
provided
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herein shall be binding upon the Indemnifying Party, and shall conclusively be
deemed to be an obligation with respect to which the Indemnified Party is
entitled to prompt indemnification hereunder.
6.1.4 Failure to Give Timely Notice. A failure by an Indemnified
Party to give timely, complete or accurate notice as provided in Section 6.1.3
will not affect the rights or obligations of any party hereunder except and only
to the extent that as a result of such failure, any party entitled to receive
such notice was deprived of its right to recover any payment under its
applicable insurance coverage or was otherwise directly and materially damaged
as a result of such failure to give timely notice.
6.1.5 Survival of Representations, Warranties and Covenants; Time
Limits on Indemnification Obligations. All representations, warranties,
covenants and agreements shall survive the execution and delivery of this
Agreement for a period of one year from the date of this Agreement
6.2 Liability for Taxes. The following provisions shall govern the
allocation of responsibility as between Buyer and Seller for certain tax matters
following the Closing Date:
(a) Allocation of Taxes. Seller shall be responsible for all Taxes
imposed on the Company or any Affiliated Group in which the Company is or was a
member for all taxable periods, or portions of taxable periods, ending on or
before the Closing Date in excess of those Taxes accrued as a liability, and
included in Company Liabilities as set forth in Schedule 2.3 (the "Seller
Taxes"). Buyer shall be responsible for all Taxes imposed on the Company for all
taxable periods, or portions of taxable periods, after the Closing Date and for
those Taxes accrued as a liability, and included in Company Liabilities as set
forth in Schedule 2.3 (the "Buyer Taxes"). Whenever in accordance with this
Section 6.2, Buyer shall be required to pay Seller the Buyer Taxes or Seller
shall he required to pay Buyer the Seller Taxes, subject to the parties' right
to dispute the amount of such Taxes with the appropriate taxing authority, such
payments shall be made the later of 10 days after requested or 10 days before
the requesting party is required to pay or cause to be paid the related Tax
liability. Where the Seller Taxes are calculated on the basis of a period which
includes the day after the Closing Date, such Seller Taxes shall be calculated
on the basis of the taxable income of the Company as though the taxable year of
the Company terminated at the close of business on day prior to the Closing
Date.
(b) Returns for Tax Periods Ending On or Before the Closing Date.
Buyer shall file (or cause to be filed) any Tax Returns of the Company for Tax
periods beginning before the Closing Date for which Tax Returns shall not have
been filed before the Closing Date. Such Tax Returns shall be prepared by Buyer
on a basis consistent with past practice to the extent such past practice is
consistent wit all federal, state, local and foreign Tax laws, rules and
regulations.
(c) Returns for Tax Periods Beginning After the Closing Date. Buyer
shall
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file (or cause to be filed) any Tax Returns of the Company for Tax periods which
begin after the Closing Date.
ARTICLE 8
MISCELLANEOUS
7.1 Notices, Consents, etc. Any notices, consents or other communication
required to be sent or given hereunder by any of the parties shall in every case
be in writing and shall be deemed properly served if (a) delivered personally,
(b) sent by registered or certified mail, in all such cases with first class
postage prepaid, return receipt requested, (c) delivered by a recognized
overnight courier service, or (d) sent by facsimile transmission to the parties
at the addresses as set forth below or at such other addresses as may be
furnished in writing.
(a) If to Seller:
Able Energy Company
000 Xxxxx 00
Xxxxxxxx, Xxx Xxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: X. Xxxxxxxxxx, President
with a copy to:
Xxxx X. Xxxxxxxxx, Esq.
Xxxxxx Xxxxxx & Xxxxx
0000 Xxxxxx Xxxxxxxxx Xxxxxx, XX
Xxxxx 000, Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) If to Buyer:
Xxxxxx X. Xxxxxxx
0000 Xxx-Xxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Tel: 215) 000-0000
Fax: (000) 000-0000
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with a copy to:
J. Xxxxxx Xxxxx, Esq.
00 Xxxx xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Tel: (215) ___-____
Fax: (215) ___-____
Date of service of such notice shall be (i) the date such notice is personally
delivered, (ii) three days after the date of mailing if sent by certified or
registered mail, (iii) one day after date of delivery to the overnight courier
if sent by overnight courier or (iv) the next succeeding business day after
transmission by facsimile.
7.2 Public Announcements, No party shall make any public announcement or
filing with respect to the transactions provided for herein without the prior
consent of the other parties hereto subject to applicable disclosures required
to be made by Buyer under federal securities law. To the extent reasonably
feasible, any press release or other announcement or notice regarding the
transactions contemplated by this Agreement shall be made jointly by the
parties.
7.3 Severability. The unenforceability or invalidity of any provision of
this Agreement shall not affect the enforceability or validity of any other
provision.
7.4 Amendment and Waiver. This Agreement may be amended, or any provision
of this Agreement may be waived, provided that any such amendment or waiver will
be binding on Buyer only if such amendment or waiver is set forth in a writing
executed by Buyer, and provided that any such amendment or waiver will be
binding upon Seller only if such amendment or waiver is set forth in a writing
executed by Seller. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any other
breach.
7.5 Documents. Each party will execute all documents and take such other
actions as any other party may reasonably request in order to consummate the
transactions provided for herein and to accomplish the purposes of this
Agreement.
7.6 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties hereto and
delivered to the other.
7.7 Expenses. Except as paid prior to the date hereof or otherwise
specifically provided herein, each of the parties shall pay all costs and
expenses incurred or to be incurred by
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it, him or her, as the case may be, in negotiating and preparing this Agreement
and in closing and carrying out the transactions contemplated by this Agreement.
7.8 Construction. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the Commonwealth of Pennsylvania, without giving effect to provisions thereof
regarding conflict of laws.
7.9 Headings. The subject headings of Articles and Sections of this
Agreement are included for purposes of convenience only and shall not affect the
construction or interpretation of any of its provisions.
7.10 Assignment. This Agreement is intended to bind and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns. This Agreement will not be assignable or
delegable by any party without the prior written consent of the other parties;
provided, however, that nothing in this Agreement will limit Buyer's ability to
assign its rights or delegate its responsibilities, liabilities, and obligations
under this Agreement to any person at any time without the consent of the other
parties.
7.11 Definitions. For purposes of this Agreement, the following terms have
the meaning set forth below:
"Affiliate" means an affiliate as defined in Rule 405 under the
Securities Act of 1933, as amended, and includes any past and present Affiliate
of a Person.
"Code" means the Internal Revenue Code of 1986, as amended.
"ERISA" means the Employment Retirement Income Security Act of 1974,
as amended.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or any successor
authority) that are applicable as the date of determination, consistently
applied.
"Liens" means any claims, liens, charges, restrictions, options,
preemptive rights, mortgages, hypothecations, assessments, pledges, encumbrances
or security interests of any kind or nature whatsoever.
"Person" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated association, corporation, entity or
government (whether Federal, state, county, city or otherwise, including,
without limitation, any instrumentality, division, agency or
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department thereof).
"Proprietary Rights" means all patents, patent applications, patent
disclosures and inventions (whether or not patentable and whether or not reduced
to practice); the Trademarks and all other all trademarks, service marks, trade
dress, trade names and corporate names; all registered and unregistered
statutory and common law copyrights; all registrations, applications and
renewals for any of the foregoing; all trade secrets, confidential information,
ideas, formulae, compositions, know-how, manufacturing and production processes
and techniques, research and development information, drawings, specifications,
designs, plans, improvements, proposals, technical and computer data,
documentation and software, financial, business and marketing plans, and
franchisee, customer and supplier lists and related information and all other
proprietary rights.
"Tax" means any federal, state, local or foreign income, gross
receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use,
transfer, registration, value added, excise, natural resources, severance,
stamp, occupation, premium, windfall profit, environmental, customs, duties,
real property, personal property, capital stock, social security, unemployment,
disability, payroll, license, employee or other withholding, or other tax, of
any kind whatsoever, including any interest, penalties or additions to tax or
additional amounts in respect of the foregoing; the foregoing shall include any
transferee or secondary liability for a Tax and any liability assumed by
agreement or arising as a result of being (or ceasing to be) a member of any
Affiliated Group (or being included (or required to be included) in any Tax
Return relating thereto).
"Tax Returns" means returns, declarations, reports, claims for
refund, information returns or other documents (including any related or
supporting Schedules, statements or information) filed or required to be filed
in connection with the determination, assessment or collection of any Taxes of
any party or the administration of any laws, regulations or administrative
requirements relating to any Taxes.
"Transaction Documents" means all agreements and instruments
contemplated by and being delivered pursuant to or in connection with this
Agreement.
7.12 Entire Agreement. This Agreement, the Preamble and all the Schedules
attached to this Agreement (all of which shall be deemed incorporated in the
Agreement and made a part hereof) set forth the entire understanding of the
parties with respect to the subject matter hereof, and shall not be modified or
affected by any offer, proposal, statement or representation, oral or written,
made by or for any party in connection with the negotiation of the terms hereof,
and may be modified only by instruments signed by all of the parties hereto.
7.13 Third Parties. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person or entity, other than
the parties to this Agreement and their respective permitted successors and
assigns, any rights or remedies under or by reason
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of this Agreement.
7.14 Interpretative Matters. Unless the context otherwise requires, (a)
all references to Articles, Sections or Schedules are to Articles, Sections or
Schedules in this Agreement, (b) each accounting term not otherwise defined in
this Agreement has the meaning assigned to it in accordance with GAAP, and (c)
words in the singular or plural include the singular and plural and pronouns
stated in either the masculine, the feminine or neuter gender shall include the
masculine, feminine and neuter and the term A including" shall mean by way of
example and not by way of limitation.
7.15 Knowledge. Where any representation or warranty of Seller contained
in this Agreement is expressly qualified by reference "to the knowledge of," it
refers to the knowledge of Seller and/or the directors, officers and senior
managers of the Company and its Affiliates as to the existence or absence of
facts that are the subject of such representations and warranties after
consultation with and due inquiry of all of the directors, officers and senior
managers of the Company which is assumed to have been made and acknowledged by
Seller, it being understood that Seller has not made any other independent
investigation or consulted with any outside third parties, other than the
Company's accountants and legal counsel.
7.16 No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SELLER:
/s/ Xxxxxxx X. Xxxxxxxxxx 12/31/98
----------------------------------
Able Energy Company, Inc.
By: Xxxxxxx X. Xxxxxxxxxx, President
COMPANY: BUYER:
ABLE OIL COMPANY XXXXXXXXXX, INC. XXXXXX X. XXXXXXX
By: Xxxxxxx X. Xxxxxxxxxx, President /s/ Xxxxxx X. Xxxxxxx
---------------------
12/31/98
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EXHIBITS
Exhibit 2.2.3 Pledge Agreement
Exhibit 5.2-D Form of Opinion
Exhibit 5.2-H Form of Trademark License Termination Agreement
Exhibit 5.2-K Form of Release
Exhibit 7.5 Form of Lock-Up Agreement
SCHEDULES
Schedule 3.2 Certificates of Good Standing
Schedule 3.4 Officers and Directors
Schedule 3.9 Liabilities
Schedule 3.10-B Accounts Receivable
Schedule 3.10-C Accounts Payable
Schedule 3.12 Material Contracts
Schedule 3.13 Leased Real Property
Schedule 3.14 Personal Property
Schedule 3.15 Litigation
Schedule 3.17 Intellectual Property
Schedule 3.19 Conduct in Ordinary Course of Business
Schedule 3.20 Insurance Policies
Schedule 3.21 Bank Accounts
Schedule 3.22 Licenses and Permits
Schedule 3.23 Employee Benefit Plans
Schedule 3.24 Hazardous Wastes
Schedule 3.25 Salaries
Schedule 3.26 Personnel Agreements, Plans and Arrangements
Schedule 3.27 Workers Compensation
Schedule 3.29 Affiliate Transactions
??
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1
(iii)
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Able Mont. SPA 7/17/98
sAble Mont. TIME \@ "M/d/yy" 7/17/98
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