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EXHIBIT 2.3.2
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into as
of February 12, 2001, by and among Glacier Corporation, a Delaware corporation
(the "Buyer") and XXXXX XXXXXXX, an individual ("Seller"). Buyer and Seller are
referred to collectively herein as the "Parties."
WITNESSETH:
A. The Buyer, Seller and Xxxxxxx Xxxxx have entered into a stock
purchase agreement dated of even date herewith (the "Stock Purchase Agreement")
wherein Buyer has purchased from Seller and Xxxxxxx Xxxxx, all of the issued and
outstanding capital stock of Rocky Mountain Fresh and Natural, Inc., a Colorado
corporation (the "Company"). Capitalized terms used herein and not otherwise
defined shall have the meaning given to them in the Stock Purchase Agreement.
B. This Agreement contemplates a transaction in which Buyer will
purchase from Seller, and Seller will sell to Buyer, all of his personal
goodwill relating to the business and operations of the Company (the
"Business"), in return for the consideration described herein.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:
1. Purchase and Sale of Goodwill.
(a) Conveyance of Goodwill. Seller hereby transfers, sells, assigns and
conveys all of his personal goodwill relating to the Business and the Company
(the "Goodwill") to Buyer, for the consideration specified in Section 1(b) of
this Agreement.
(b) Purchase Price. The purchase price for the Goodwill (the "Purchase
Price") shall be paid by Buyer to Seller concurrently with the execution of this
Agreement in the form of THREE HUNDRED THOUSAND AND 00/100 DOLLARS ($300,000.00)
cash by wire transfer or delivery of other immediately available funds.
2. Representations and Warranties.
(a) Representations and Warranties of the Seller. Seller represents and
warrants to the Buyer that the statements contained in this Section 2(a) are
correct and complete as of the date of this Agreement.
(i) Authorization of Transaction. Seller has full power and
authority to execute and deliver this Agreement and to perform his
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of Seller, enforceable in accordance with its terms
and conditions, subject to or limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws and
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interpretations thereof now or hereafter in effect relating to, or
affecting the rights and remedies of, persons generally. The Seller
need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental
agency in order to consummate the transactions contemplated by this
Agreement.
(ii) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which the Seller is subject, or (B) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which the Seller is a
party or by which Seller is bound or to which any of the Seller's
assets are subject.
(iii) Brokers' Fees. Seller has no Liability or obligation to
pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which
the Buyer or the Company could become liable or obligated.
(b) Representations and Warranties of the Buyer. Buyer represents and
warrants to Seller that the statements contained in this Section 2(b) are
correct and complete as of the date of this Agreement.
(i) Organization of the Buyer. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Authorization of Transaction. The Buyer has full power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of Buyer, enforceable in accordance with its terms
and conditions, subject to or limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws and interpretations thereof now or hereafter in effect
relating to, or affecting the rights and remedies of, persons
generally. Buyer need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions
contemplated by this Agreement.
(iii) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which the Buyer is subject or any provision of its charter or bylaws
or (B) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under
any
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agreement, contract, lease, license, instrument, or other arrangement
to which the Buyer is a party or by which it is bound or to which any
of its assets is subject.
(iv) Brokers' Fees. The Buyer has no Liability or obligation
to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which
Seller could become liable or obligated.
3. COVENANTS OF THE PARTIES. The Parties agree as follows with respect
to the period following the closing of the transactions contemplated by this
Agreement (the "Closing").
(a) General. In case at any time after the Closing any further action
is necessary to carry out the purposes of this Agreement, each of the Parties
will take such further action (including the execution and delivery of such
further instruments and documents) as any other Party may reasonably request,
all at the sole cost and expense of the requesting Party.
(b) Covenant Not to Compete. The Company is engaged in the distribution
of fresh and frozen produce ("Business") throughout the State of Colorado (such
geographical area being hereinafter referred to as the ("Territory"). In
consideration of the Purchase Price paid by Buyer to Seller, Seller agrees that,
for a period of thirty-six (36) months from the date hereof, Seller will not,
either individually or in conjunction with any person, firm, partnership,
limited liability company, trust, corporation or any other entity, directly or
indirectly, (i) invest in, become associated with, accept employment with, serve
as a consultant or advisor to, or accept compensation from, any person, firm,
partnership, limited liability company, trust, corporation or other entity
(including any new business started by Seller alone or with others) whose
products or services are competitive with the Business within the Territory,
(ii) contact or solicit any customers of the Company for the purpose of
diverting any existing or future business of such customers to a competing
source, (iii) contact or solicit any employees of, or vendors to, the Company
for the purpose of causing, inviting or encouraging any such employee or vendor
to alter or to terminate his, her or its employment or business relationship
with the Company. Notwithstanding the foregoing, the ownership by Seller of not
more than three percent (3%) of the shares of stock of any corporation having a
class of equity securities actively traded on a national securities exchange or
on Nasdaq shall not be deemed, in and of itself, to violate the provisions of
this Section 3(b). If the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 3(b) is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
(c) Employment. Seller shall enter into the employment agreement with
Buyer in the form attached as Exhibit A hereto.
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4. MISCELLANEOUS.
(a) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(b) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
(c) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of his
or its rights, interests, or obligations hereunder; provided, however, that the
Buyer may (i) assign any or all of its rights and interests hereunder to one or
more of its Affiliates and (ii) designate one or more of its Affiliates to
perform its obligations hereunder (in any or all of which cases the Buyer
nonetheless shall remain responsible for the performance of all of its
obligations hereunder).
(d) Counterparts; Execution. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. The Parties shall be
entitled to rely on delivery by facsimile of an executed copy of this Agreement
and acceptance of such facsimile signatures shall be equally effective to create
a valid and binding agreement between the Parties in accordance with the terms
hereof.
(e) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Notices. All notices, claims, certificates, requests, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or if sent by nationally recognized
overnight courier, by telecopy, or by registered or certified mail, return
receipt requested and postage prepaid, addressed as follows:
If to Seller: With a copy to:
Xxxxx Xxxxxxx Minor & Xxxxx, P.C.
0000 X. Xxxxx Xxxxx 000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx Xxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
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If to Buyer: With a copy to:
Glacier Corporation Xxxxxx Xxxxx Xxxxx Xxxxxxxxx & Xxxxxx LLC
0000 00xx Xxxxxx, Xxxxx 000 0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxxx Attn: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Or to such other address as the Party to whom notice is to be given may have
furnished to the other Parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent, (c) in the case of telecopy transmission, when received, and (d) in
the case of mailing, on the third business day following that on which the piece
of mail containing such communication is posted.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Colorado without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Colorado or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Colorado.
(h) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by Buyer
and Seller. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(i) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(j) Incorporation of Exhibits. The Exhibits identified in this
Agreement are incorporated herein by reference and made a part hereof.
(k) Specific Performance. Each of the Parties acknowledges and agrees
that the other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Parties shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of the United States or any state thereof having jurisdiction over the
Parties and the matter (subject to the provisions set forth in Section 4(l)
below), in addition to any other remedy to which they may be entitled, at law or
in equity.
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(l) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in Denver, Colorado, in any
action or proceeding arising out of or relating to this Agreement and agrees
that all claims in respect of the action or proceeding may be heard and
determined in any such court. Each Party also agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court. Each
of the Parties waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety, or other
security that might be required of any other Party with respect thereto.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
BUYER:
GLACIER CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
SELLER:
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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