This ASSET PURCHASE AGREEMENT (this "Agreement") is entered into this 21st
day of July, 1998 by and among THERMOVIEW INDUSTRIES, INC. (the "Buyer"), a
Delaware corporation, NUVIEW INDUSTRIES, INC. (the "Seller"), a Missouri
corporation, and XXXXXXX X. XXXXX, an individual residing in St. Louis, Missouri
and the sole shareholders of the Seller ("Miles").
PRELIMINARY STATEMENTS:
The Seller is engaged in the business of designing, selling and installing
custom vinyl new and replacement thermal paned windows for the existing home
market (the "Business");
The Seller desires to sell or otherwise transfer certain of its assets and
the Business; and
The Buyer desires to purchase the Business through ThermoView of Missouri,
Inc., a Missouri corporation and wholly-owned subsidiary of the Buyer (the
"Subsidiary").
In consideration of these preliminary statements and the mutual covenants,
representations, warranties and agreements hereinafter set forth, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I. PURCHASE AND SALE OF ASSETS
SECTION 1.1 TRANSFER OF ASSETS.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time (as hereinafter defined) the Seller shall
transfer to the Buyer, free and clear of all claims, charges, liens, contracts,
rights, options, security interests, mortgages, encumbrances and restrictions
whatsoever (collectively, "Claims"), all of the assets, properties and rights
owned by the Seller or in which the Seller has any right or interest of every
type and description, real, personal and mixed, tangible and intangible,
confirmed or contingent (other than the Excluded Assets as hereinafter defined),
including, without limitation, business agreements, property, the Accounts
Receivable (as defined in Section 2.30), goodwill, supplier lists, customer
lists, prepaid insurance, licenses and permits, processes, service marks,
know-how, show-how, trade secrets, software (including, without limitation,
documentation and related source and object codes), licenses thereto, computers
and computer equipment, files and other records, systems and processes, security
deposits, contracts, arrangements and understandings, oral and written, formal
and informal, for work to be performed and/or services to be provided, real
estate and interests therein, leasehold and other improvements, machines,
machinery, equipment, furniture, fixtures, supplies, all rights and claims under
insurance policies and other contracts of whatever nature, all causes of action,
claims and demands of every nature relating to the Assumed Liabilities,
Contracts and Leases (as hereinafter defined), the right to use the name
"NuView" or any derivative thereof, and all other assets, properties and rights
of every kind and nature owned by the Seller, whether or not specifically
referred to in this Agreement (collectively, the "Transferred Assets"), all with
the intention that the Business shall be transferred to the Buyer as a going
concern.
(b) Notwithstanding any provision of this Agreement to the
contrary, there shall be excluded from the Transferred Assets and retained by
the Seller the following assets (the "Excluded Assets"): (i) all cash on hand
and in banks (including all uncollected items); (ii) all other claims for
services provided to customers prior to the Effective Time; and (iii) all
contracts, arrangements and understandings which are not capable of being
transferred or assigned without the approval or consent of any party thereto
other than the Seller if such approval or consent has not been obtained,
subject, however, to Sections 1.3 and 5.1 herein.
(c) The Seller shall transfer the Transferred Assets to the Buyer
pursuant to a Xxxx of Sale in substantially the form of EXHIBIT A, an Assignment
and Assumption Agreement in substantially the form of EXHIBIT B, a Sublease
Agreement in substantially the form of EXHIBIT C, and such other documents and
instruments as the Buyer or its counsel may reasonably request.
(d) At any time and from time to time after the Closing Date, at
the request of the Buyer and without further consideration, the Seller shall
execute and deliver such other instruments of sale, transfer, conveyance,
assignment and confirmation as may be reasonably requested in order to more
effectively transfer, convey and assign to the Buyer and to confirm the Buyer's
title to the Transferred Assets.
SECTION 1.2 CONSIDERATION FOR THE TRANSFERRED ASSETS. In consideration
for the transfer of the Transferred Assets, upon the terms and subject to the
conditions set forth in this Agreement, the Buyer shall assume the Assumed
Liabilities pursuant to Section 1.3 hereof and shall make payments as follows:
(a) CLOSING PAYMENT. An initial payment of One Million One Hundred
Fifty Thousand Dollars ($1,150,000.00) shall be delivered to
the Seller in cash on the Closing Date (defined below) by
certified check;
(b) EARN OUT. Post closing earn out payments shall be paid if
earned as set forth on SCHEDULE 1.2(B) hereto.
SECTION 1.3 ASSUMPTION OF LIABILITIES. The only obligations and
liabilities to be assumed by the Buyer in connection with its acquisition of the
Transferred Assets (the "Assumed Liabilities") are the obligations and
liabilities specifically listed on SCHEDULE 1.3 and obligations and liabilities
arising from the operation of the Business after the Effective Date, including
obligations under executory contracts listed on SCHEDULE 1.3 arising from the
operation of the Business after the Effective Date (provided such contracts are
not in default
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and are assigned in writing by the Seller with the written consent of the
other party or parties thereto, if necessary, and are delivered to the Buyer
on or prior to the Effective Date).
The Buyer shall assume such obligations and liabilities pursuant to the
Assignment and Assumption Agreement substantially in the form of EXHIBIT B and
the Sublease Agreement substantially in the form of EXHIBIT C. The Seller shall
remain liable for the payment of all other liabilities and obligations which
accrue prior or subsequent to the Effective Date. Except for the Assumed
Liabilities in the amount and to the extent provided in this Section 1.3, the
Buyer shall not assume or be responsible for any other liabilities or
obligations which relate in any manner to the operation of the Business prior to
the Effective Date, and the Seller shall indemnify, defend, and hold the Buyer
harmless from all of such obligations and liabilities as set forth in
Section 9.2 below. Operating expenses, including without limitation rent
payable under real estate and equipment leases, staff commissions, unpaid
vacation and holiday pay and rebates to customers for which bills are received
or payment became due after the Effective Date with respect to periods both
prior to and after the Effective Date will be allocated to each of the Seller
and the Buyer on a pro-rata basis according to the ratio of pre-Effective Time
days to post-Effective Time days; promptly upon receipt of notice from the Buyer
of amounts so allocated to the Seller, the Seller shall remit full payment
therefor to the Buyer.
SECTION 1.4 ALLOCATION OF PURCHASE PRICE. The considerations paid and the
liabilities assumed by the Buyer pursuant to Sections 1.2 and 1.3 above shall be
allocated among the Transferred Assets purchased hereunder as set forth on
SCHEDULE 1.4 attached hereto. The Seller and the Buyer each hereby covenant and
agree that neither of them will take a position on any income tax return, before
any governmental agency, or in any judicial proceeding that is in any way
inconsistent with the allocation set forth on SCHEDULE 1.4. Each party shall
duly and timely file Form 8594 with its appropriate tax returns.
SECTION 1.5 NET CURRENT ASSETS. As soon as practicable but within thirty
(30) days after the Closing Date, the Seller, at its expense, shall cause Connor
Ash P.C., an independent accounting firm, to prepare a balance sheet of the
Seller immediately prior to the Effective Time (the "Effective Time Balance
Sheet") setting forth the net current assets of the Seller using accrual
accounting and in conformance with generally accepted accounting principles (the
"Net Current Assets"). A copy of the Effective Time Balance Sheet shall be
promptly furnished to the Buyer. If the Buyer disagrees with the Net Current
Assets, the Buyer shall engage Coopers & Xxxxxxx, an independent public
accounting firm, at its expense, to audit the Effective Time Balance Sheet and
deliver a certified written report to the Seller confirming the Net Current
Assets ("Audited Net Current Assets"). If the Seller fails to notify the Buyer
within fifteen (15) days after receiving the Coopers & Xxxxxxx report, such
report shall be deemed accepted for purposes of calculating Net Current Assets.
If the Seller should so notify the Buyer of a dispute concerning Audited Net
Current Assets, the Buyer shall then engage another big-six independent
accounting firm that is mutually acceptable to the Buyer and the Seller to
resolve such dispute and such firm shall notify the Buyer and the Seller of its
resolution of such dispute within two weeks of its engagement by
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the Buyer. The cost of services provided by such big-six accounting firm
shall be borne equally by the Buyer on one hand and the Seller on the other.
Any such resolution shall be final and binding on all parties hereto for the
purposes of calculating Net Current Assets. In the event the amount of Net
Current Assets is less than $50,000, the Seller shall pay such deficit amount
to the Buyer on a dollar-for-dollar basis within thirty (30) days following
the later of its determination of the Net Current Assets, the Buyer's audit
or the resolution of any dispute by such big-six accounting firm. In the
event the amount of the Net Current Assets is greater than $50,000, the Buyer
shall pay such excess amount on a dollar-for-dollar basis to the Seller
within thirty (30) days following the later of either Connor Ash P.C.'s
determination of the Net Current Assets or the determination of Audited Net
Current Assets. For purposes of this Section 1.5, "Net Current Assets" shall
mean the current assets of the Seller at the Effective Time determined in
accordance with generally accepted accounting principles applied on a
consistent basis. Net current assets shall be calculated by subtracting the
book value of all of the current liabilities of the Seller from the book
value of all current tangible assets of the Seller.
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, the Seller represents and
warrants to the Buyer as follows:
SECTION 2.1 ORGANIZATION AND QUALIFICATION. The Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Missouri. The nature of the Business or the Transferred Assets does
not require the Seller to be licensed or qualified in any other jurisdiction.
The Seller has made available to the Buyer complete and correct copies of the
Articles of Incorporation and By-laws of the Seller as currently in effect.
SECTION 2.2 CORPORATE POWER AND AUTHORITY. The Seller has the corporate
power and authority to own and hold its properties and to carry on its business
as now conducted, including the right to use the corporate name "NuView
Industries." The Seller (a) has the corporate power and authority to execute,
deliver and perform this Agreement and the Exhibits and to deliver the Schedules
hereto and the other documents and instruments contemplated hereby (collectively
this Agreement, the Exhibits and Schedules hereto, and the other documents and
instruments contemplated hereby shall constitute the "Documents") and to
consummate the transactions contemplated hereby and thereby and (b) has taken
all necessary corporate and shareholder action to authorize and approve the
execution, delivery and performance of this Agreement and the other Documents
and the consummation of the transactions contemplated hereby and thereby. This
Agreement and the other Documents have been duly and validly executed and
delivered by the Seller and constitute valid and binding obligations of the
Seller, enforceable against the Seller in accordance with their terms.
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SECTION 2.3 VALIDITY, ETC. Except as set forth on SCHEDULE 2.3, neither
the execution and delivery of this Agreement or the other Documents, the
consummation of the transactions contemplated hereby or thereby, nor the
performance of this Agreement or the other Documents and such other agreements
in compliance with the terms and conditions hereof and thereof by the Seller
will (i) violate, conflict with or result in any breach of any trust agreement,
Articles of Incorporation, bylaw, judgment, decree, order, statute or regulation
applicable to the Seller, (ii) violate, conflict with or result in a breach,
default or termination or give rise to any right of termination, cancellation or
acceleration of the maturity of any payment date of any of the obligations of
the Seller or increase or otherwise affect the obligations of the Seller under
any law, rule, regulation or any judgment, decree, order, governmental permit,
license or order or any of the terms, conditions or provisions of any mortgage,
indenture, note, license, agreement or other instrument or obligation related to
the Seller or to the Seller's ability to consummate the transactions
contemplated hereby or thereby, except for such defaults (or rights of
termination, cancellation or acceleration) as to which requisite waivers or
consents have been obtained in writing and provided to the Buyer, (iii) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
the Seller or (iv) result in the creation of any Claim upon the Transferred
Assets.
SECTION 2.4 SUBSIDIARIES AND INVESTMENTS. The Seller has no subsidiaries
and does not own, directly or indirectly, any capital stock or other equity or
ownership or proprietary interest in any other corporation, partnership,
association, trust, joint venture or other entity.
SECTION 2.5 BOOKS AND RECORDS. The minute books of the Seller, which have
been and will be made available to the Buyer and its representatives, contain
accurate records of all meetings of and corporate actions or written consents by
the shareholders and Board of Directors of the Seller set forth in such minute
books.
SECTION 2.6 FINANCIAL STATEMENTS. The Seller has previously furnished to
the Buyer, and attached hereto as SCHEDULE 2.6 are, the compiled balance sheet
of the Seller as at December 31, 1997, the related compiled income statement for
the fiscal year and three months ended December 31, 1997, and the unaudited
balance sheet (the "Balance Sheet") of the Seller as at June 8, 1998 (the
"Balance Sheet Date") and the related unaudited income statement for the five
months and eight days then ended. Except as set forth on SCHEDULE 2.6 hereto,
all such financial statements (the "Financial Statements") have been prepared in
accordance with generally accepted accounting principles ("GAAP") consistently
applied and were prepared from the books and records of the Seller. Such books
and records are complete and correct in all material respects, accurately
reflect all transactions of the business of the Seller, and have been made
available to the Buyer for examination. The Financial Statements fairly present
the financial position of the Seller as of the dates thereof and the results of
its operations and cash flows for the periods ended on the dates thereof. The
Financial Statements reflect reserves appropriate and adequate for all known
material liabilities and reasonably anticipated losses as required by GAAP.
Since the Balance Sheet Date, (i) there has been no change in the assets,
liabilities or financial condition of the Seller from that reflected in the
Balance Sheet except for changes in the ordinary course of business
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consistent with past practice and which have not been materially adverse, and
(ii) none of the business, prospects, financial condition, operations,
property or affairs of the Seller has been materially adversely affected by
any occurrence or development, individually or in the aggregate, whether or
not insured against. The Seller has disclosed to the Buyer all material facts
relating to the preparation of the Financial Statements.
SECTION 2.7 ABSENCE OF UNDISCLOSED LIABILITIES.
(a) Except as and to the extent of the amounts specifically
reflected or reserved against in the Balance Sheet, or except as set forth on
SCHEDULE 2.7, the Seller has no liabilities or obligations of any nature
whatsoever due or to become due, accrued, absolute, contingent or otherwise,
except for liabilities and obligations incurred since the date thereof in the
ordinary course of business and consistent with past practice. The Seller does
not know of, and has no reason to know of, any basis for the assertion against
the Seller of any liability or obligation not fully reflected or reserved
against in the Balance Sheet.
(b) The Seller is not bound by any agreement, or subject to any
charter or other corporate restriction or any legal requirement, which has, or
in the future can reasonably be expected to have, a material adverse effect on
the business or prospects of the Seller.
SECTION 2.8 EMPLOYMENT AND LABOR MATTERS.
(a) SCHEDULE 2.8 lists all non-temporary employees and officers of
the Seller on the date hereof, along with the amount of the current annual
salaries and total compensation paid or due for services to each non-temporary
employee or officer for the most recent fiscal year end and the year to date,
and a full and complete description of any commitments to such non-temporary
employees and officers with respect to compensation payable thereafter. To the
best knowledge of the Seller, no key employee or group of employees has any
plans to terminate employment with the Seller.
(b) The Seller is not a party to or bound by any collective
bargaining agreement with any labor organization, group or association covering
any of its employees, and the Seller has no knowledge of any attempt to organize
the Seller's employees by any Person, unit or group seeking to act as their
bargaining agent. There are no pending or, to the best knowledge of the Seller,
threatened charges (by employees, their representatives or governmental
authorities) of unfair labor practices or of employment discrimination or of any
other wrongful action with respect to any aspect of employment of any person
employed or formerly employed by the Seller. No union representation election
relating to employees of the Seller has been scheduled by any governmental
agency or authority, no organizational effort is being made with respect to any
of such employees, and there is no investigation of the Seller's employment
policies or practices by any governmental agency or authority pending or
threatened. The Seller is not currently, nor has it been, involved in labor
negotiations with any unit or group seeking to become the bargaining unit for
any employees
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of the Seller. The Seller has not experienced any material work stoppages,
and to the best knowledge of the Seller, no work stoppage is planned.
SECTION 2.9 REAL PROPERTY. The Seller owns no real property.
SECTION 2.10 POWERS OF ATTORNEY; ABSENCE OF LIMITATIONS ON COMPETITION;
GUARANTEES. Except as set forth in SCHEDULE 2.10, (i) no power of attorney or
similar authorization given by the Seller presently is in effect or outstanding;
(ii) no contract or agreement to which the Seller is a party or is bound or to
which the Seller's properties or assets are subject limits the freedom of the
Seller to compete in any line of business or with any Person; and (iii) the
Seller is not a party to or bound by any guarantee of any debt or obligation of
any other Person.
SECTION 2.11 SIGNIFICANT SUPPLIERS. Set forth on SCHEDULE 2.11 is a true
and correct list of Seller's ten largest suppliers for the most recent twelve
(12) month period ending December 31, 1997 and for the four (4) month period
ending April 30, 1998, together with the amount attributable to such suppliers
expressed in dollars and as a percentage of total supplies purchased. None of
the suppliers identified on SCHEDULE 2.11 has terminated, materially reduced or
threatened to terminate or materially reduce its supplies to Seller during the
period covered by such schedule.
SECTION 2.12 GOVERNMENTAL APPROVALS. No registration or filing with, or
consent or approval of or other action by, any Federal, state or other
governmental agency or instrumentality is or will be necessary for the valid
execution, delivery and performance by the Seller of this Agreement.
SECTION 2.13 ABSENCE OF ADVERSE CHANGE; CONDUCT OF BUSINESS. During the
period from the Balance Sheet Date to and including the date of this Agreement,
except as set forth on SCHEDULE 2.13, the Seller has not (i) borrowed or agreed
to borrow any material amount of funds or incurred any liability or obligation
of any nature (whether accrued, absolute, contingent or otherwise), or
guaranteed or agreed to guarantee any obligations of others, (ii) canceled any
indebtedness owing to it or any claims that it might have possessed, waived any
material rights of substantial value or sold, leased, encumbered, transferred or
otherwise disposed of, or agreed to sell, lease, encumber, or otherwise dispose
of its assets or permitted any of its assets to be subjected to any mortgage,
pledge, lien, security interest, encumbrance, restriction or charge of any kind,
(iii) made any capital expenditure or commitment therefor, (iv) increased its
indebtedness for borrowed money or made any loan to any Person, (v) written off
as uncollectible any notes or accounts receivable, except write-offs in the
ordinary course of business charged to applicable reserves, (vi) made any
material change in any method of accounting or auditing practice, (vii)
otherwise conducted its business or entered into any transaction, except in the
usual and ordinary manner, or (viii) agreed, whether or not in writing, to do
any of the foregoing.
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SECTION 2.14 CERTAIN PRACTICES. None of the Seller, the Seller's
directors or officers, or to the best knowledge of the Seller, the Seller's
employees have, directly or indirectly, used any corporate funds for unlawful
contributions, gifts, entertainment, or other unlawful expenses relating to
political activity; made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or campaigns
from corporate funds; violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; established or maintained any unlawful or unrecorded
fund of corporate monies or other assets; made any false or fictitious entry on
the books or records of the Seller or any subsidiary; made any bribe, rebate,
payoff, influence payment, kickback, or other unlawful payment; given any favor
or gift which is not deductible for federal income tax purposes; or made any
bribe, kickback, or other payment of a similar or comparable nature, whether
lawful or not, to any person or entity, private or public, regardless of form,
whether in money, business or to obtain special concessions, or to pay for
favorable treatment for business secured or for special concessions already
obtained.
SECTION 2.15 COMPLIANCE WITH LAW; LICENSES AND PERMITS. Except as set
forth on SCHEDULE 2.15, the Seller has complied in all material respects with
all laws, ordinances, legal requirements, rules, regulations and orders
applicable to it, its operations, properties, assets, products and services.
Except as set forth on SCHEDULE 2.15, there is no existing law, rule, regulation
or order, and the Seller is not aware of any proposed law, rule, regulation or
order, whether Federal, state or local, which would prohibit or materially
restrict the Buyer from, or otherwise materially adversely affect the Buyer in,
conducting the Business in the manner heretofore conducted by the Seller in any
jurisdiction in which the Business is now conducted. The Seller possesses all
franchises, permits, licenses, certificates and consents required from any
governmental or regulatory authority in order for the Seller to carry on its
business as currently conducted and to own and operate its properties and assets
as now owned and operated and all of such licenses and permits are set forth on
SCHEDULE 2.15.
SECTION 2.16 EMPLOYEE BENEFITS.
(a) Set forth on SCHEDULE 2.16 is a list of all pension, profit
sharing, retirement, deferred compensation, stock purchase, stock option,
incentive, bonus, vacation, severance, disability, hospitalization, medical
insurance, life insurance, fringe benefit, welfare and other employee benefit
plans, programs or arrangements pursuant to which the Seller or its ERISA
Affiliates provides (directly or indirectly, individually or jointly through
others) benefits or compensation to or on behalf of employees or independent
contractors or former employees or former independent contractors of the Seller
or its ERISA Affiliates, whether formal or informal, whether or not written
("Employee Plan"). Except as set forth on SCHEDULE 2.16, the Buyer shall not
have any obligation or liability of any kind or nature for any compensation or
benefits of any kind or nature to the employees or consultants of the Seller for
services rendered prior to the Effective Date.
(b) Each Employee Plan covering any present or former employee of
the Seller which is subject to the continuation health coverage requirements of
Section 4980B of
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the Code or Section 601 of ERISA or any applicable state law has complied
with all such requirements for continuation coverage.
(c) There are no actions, suits or claims pending (other than
routine claims for benefits) or threatened against or with respect to any
Employee Plan or the assets of any Employee Plan.
(d) Each Employee Plan (and the related trust or funding vehicle,
if any) has been administered and maintained in accordance with its terms and
with applicable law. Except as set forth on SCHEDULE 2.16(d), each Employee
Plan which is intended to be qualified under Section 401 of the Code and each
amendment to such plan is subject to a favorable determination letter from the
Internal Revenue Service ("IRS") and each such plan has at all times been
maintained, by its terms and in operation, in accordance with Section 401 of the
Code. The assets of each Employee Plan which is not funded through the general
assets of the Seller are at least equal to the liabilities under such Employee
Plan, and all assets of each Employee Plan are shown on the books and records of
such Employee Plan at fair market value. No Employee Plan has unfunded
liabilities that as of the Effective Time are not accurately and fully reflected
on the Seller's Balance Sheet.
(e) Neither the Seller nor any of its ERISA Affiliates is or has
been a participant in, or is or has been obligated to maintain or to make
contributions to, a multi-employer plan (within the meaning of ERISA Section
3(37) and ERISA Section 4001(a)(3)) or an Employee Plan which is subject to
Title IV of ERISA. Neither the Seller nor any ERISA Affiliate has sponsored,
contributed to or been obligated under Title I or IV of ERISA to contribute to a
"defined benefit plan" (as defined in ERISA Section 3(35)). The Seller is not
obligated to provide post-retirement medical benefits or any other unfunded
post-retirement welfare benefits to or on behalf of any persons whatsoever
(except the benefits pursuant to the continuation health coverage requirements
under Section 4980B of the Code, ERISA Section 601, or applicable state law).
(f) Neither the Seller nor its ERISA Affiliates is subject to and,
to the best knowledge of the Seller, no facts exist which could subject the
Seller or any of its ERISA Affiliates to, any liability whatsoever which is
directly or indirectly related to any Employee Plan, including, but not limited
to, liability for benefit payments or related claims, any liability for any tax
or related penalty under the Code, or liability for any damages or penalties
arising under Title I or Title IV of ERISA. No reportable event under Section
4043 of ERISA has occurred or, to the best knowledge of the Seller, will occur
with respect to such Employee Plan.
(g) Termination of or withdrawal from any Employee Plan immediately
after the Effective Time would not subject the Buyer to any liability, tax or
penalty whatsoever.
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(h) The execution or performance of the transactions contemplated
by this Agreement will not create, accelerate or increase any obligations under
the Employee Plans, including any obligation to make any payment which would not
be deductible as an excess golden parachute payment under Section 280G of the
Code.
(i) All contributions to or under each Employee Plan and all
expenses of each Employee Plan are fully deductible for income tax purposes for
the taxable year for which such contributions are made or such expenses are
paid. All contributions to or under each Employee Plan have been made when due
under the terms of such Employee Plan in accordance with applicable law.
(j) For purposes of this Section 2.16, the term "ERISA" shall mean
the Employee Retirement Income Security Act of 1974, as amended, and the term
"ERISA Affiliate" shall mean each trade or business (whether or not
incorporated) which together with the Seller is treated as a single employer
under Section 414(b), (c), (m), (o) or (t) of the Code.
SECTION 2.17 FIXED ASSETS. SCHEDULE 2.17 contains a true and complete
list of all of the Transferred Assets which are fixed assets with a net book
value of greater than $1,000.00, whether owned or leased. Except as shown on
SCHEDULE 2.17, the Seller has good and marketable title to all of its fixed
assets, free and clear of all claims, liens, mortgages, charges and encumbrances
except as disclosed in the Balance Sheet. All of the Seller's fixed assets,
whether owned or leased, are adequate and usable for the purposes for which they
are currently used, are in good operating condition and repair and have been
properly maintained.
SECTION 2.18 INSURANCE. The Seller is, and will be through the Effective
Date, insured with insurers in respect of its properties, assets and businesses
as set forth on the attached SCHEDULE 2.18. SCHEDULE 2.18 lists the insurance
coverage carried by the Seller, which insurance will remain in full force and
effect with respect to all events occurring prior to the Effective Date. Except
as set forth on SCHEDULE 2.18, the Seller (i) has not failed to give any notice
or present any claim under any such policy or binder in due and timely fashion,
(ii) has not received notice of cancellation or non-renewal of any such policy
or binder, (iii) is not aware of any threatened or proposed cancellation or
non-renewal of any such policy or binder, (iv) has not received notice of any
insurance premium which will be materially increased in the future, and (v) is
not aware of any insurance premium which will be materially increased in the
future. There are no outstanding claims under any such policy which have gone
unpaid for more than 45 days, or as to which the insurer has disclaimed
liability.
SECTION 2.19 OUTSTANDING CONTRACTS. SCHEDULE 2.19 sets forth a
description of all existing contracts, agreements, leases, commitments, licenses
and franchises, which involve obligations or commitments by the Seller of
$10,000 or more and are not cancelable by the Seller without penalty within 30
days (collectively "Contracts"), whether written or oral,
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relating to the Seller. The Seller has delivered or made available to the
Buyer true, correct and complete copies of all of the Contracts specified on
SCHEDULE 2.19 which are in writing, and such schedule sets forth a complete
description of all Contracts which are not in writing. All of the Contracts
are in full force and effect and enforceable in accordance with their terms,
except to the extent that the enforceability thereof may be subject to or
affected by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, or other laws relating to or affecting the rights
of creditors generally. Except as set forth on SCHEDULE 2.19, the Seller
and, to the best knowledge of the Seller, each other party thereto has
materially performed all the obligations required to be performed by it, has
received no notice of default and is not in default (with due notice or lapse
of time or both) under any of the Contracts. The Seller has no present
expectation or intention of not fully performing all its obligations under
each of the Contracts, and the Seller has no knowledge of any breach or
anticipated breach by the other party to any of the Contracts to which the
Seller is a party. Except as set forth on SCHEDULE 2.19, none of the
Contracts has been terminated; no notice has been given by any party thereto
of any alleged default by any party thereunder; and the Seller is not aware
of any intention or right of any party to declare another party to any of the
Contracts to be in default. Except as set forth on SCHEDULE 2.19, there
exists no actual or, to the best knowledge of the Seller, threatened
termination, cancellation or limitation of the business relationship of the
Seller by any party to any of the Contracts.
SECTION 2.20 OUTSTANDING LEASES. SCHEDULE 2.20 sets forth a description
of each agreement by which the Seller leases each parcel of real property (the
"Leased Parcels") used in connection with the Business (collectively, the
"Leases"). The Seller has delivered or made available to the Buyer true,
correct and complete copies of all of the Leases specified on SCHEDULE 2.20.
All rents due under the Leases have been paid. All of the Leases are in full
force and effect and enforceable in accordance with their terms, except to the
extent that the enforceability thereof may be subject to or affected by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws relating to or affecting the rights of creditors
generally. Except as set forth on SCHEDULE 2.20, the Seller and to the best
knowledge of the Seller, each other party thereto has performed all the
obligations required to be performed by it, has received no notice of default
and is not in default (with due notice or lapse of time or both) under any of
the Leases. The Seller has no present expectation or intention of not fully
performing all its obligations under each of the Leases, and the Seller has no
knowledge of any breach or anticipated breach by the other party to any of the
Leases. Except as set forth on SCHEDULE 2.20, none of the Leases has been
terminated; no notice has been given by any party thereto of any alleged default
by any party thereunder; and the Seller is not aware of any intention or right
of any party to declare another party to any of the Leases to be in default.
There exists no actual or, to the best knowledge of the Seller, threatened
termination, cancellation or limitation of the business relationship of the
Seller with any party to any of the Leases.
SECTION 2.21 INTELLECTUAL PROPERTIES. SCHEDULE 2.21 contains an accurate
and complete list of all domestic and foreign letters patent, patents, patent
applications, patent licenses, software licenses and know-how licenses, trade
names, trademarks, copyrights,
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unpatented inventions, service marks, trademark registrations and
applications, service xxxx registrations and applications and copyright
registrations and applications, trade secrets or other confidential
proprietary information owned or used by the Seller in the operation of the
Business (collectively the "Intellectual Property"). Except as set forth on
SCHEDULE 2.21 and except for commercial software licensed for use on personal
computers, the Seller owns the entire right, title and interest in and to the
Intellectual Property, trade secrets and technology used in the operation of
its business and each item constituting part of the Intellectual Property and
trade secrets and technology which is owned by the Seller has been, to the
extent indicated in SCHEDULE 2.21, duly registered with, filed in or issued
by, as the case may be, the United States Patent and Trademark office or such
other government entities, domestic or foreign, as are indicated in SCHEDULE
2.21 and such registrations, filings and issuances remain in full force and
effect. There have been and are no pending or, to the best knowledge of the
Seller, threatened proceedings or litigation or other adverse claims
affecting or with respect to the Intellectual Property. There is, to the
best knowledge of the Seller, no reasonable basis upon which a claim may be
asserted against the Seller for infringement of any domestic or foreign
letters patent, patents, patent applications, patent licenses and know-how
licenses, trade names, trademark registrations and applications, common law
trademarks, service marks, service xxxx registrations or applications,
copyrights, copyright registrations or applications, trade secrets or other
confidential proprietary information. To the best knowledge of the Seller, no
Person is infringing the Intellectual Property.
SECTION 2.22 PROPRIETARY INFORMATION OF THIRD PARTIES. Except as
disclosed on SCHEDULE 2.22, no third party has claimed or, to the best knowledge
of the Seller, has reason to claim that any Person employed by or consulting
with the Seller ("Related Person") has (i) violated or may be violating any of
the terms or conditions of such person's employment, non-competition or
non-disclosure agreement with such third party, (ii) disclosed or may be
disclosing or utilized or may be utilizing any trade secret or proprietary
information or documentation of such third party, or (iii) interfered or may be
interfering in the employment relationship between such third party and any of
its present or former employees. No third party has requested information from
the Seller which suggests that such a claim might be contemplated. Except as
disclosed on SCHEDULE 2.22, to the best knowledge of the Seller, no Related
Person has employed or proposes to employ any trade secret or any information or
documentation proprietary to any former employer and no Related Person has
violated any confidential relationship which such person may have had with any
third party, in connection with the development or sale of any service of the
Seller, and the Seller has no reason to believe there will be any such
employment or violation.
SECTION 2.23 TRANSACTIONS WITH AFFILIATES. No director, officer or
shareholder of the Seller, or member of the family of any such person, or any
corporation, partnership, trust or other entity in which any such person, or any
member of the family of any such person, has a beneficial interest greater than
5% or is an officer, director, trustee, partner or holder of any equity interest
greater than 5%, is a party to any transaction with the Seller, including any
contract, agreement or other arrangement providing for the employment of,
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furnishing of services by, rental of real or personal property from or otherwise
requiring payments or involving other obligations to any such person or firm.
SECTION 2.24 TAXES. The Seller has timely filed a valid election to be
treated as an S corporation in accordance with the provisions of Section 1361 of
the Code, effective for its tax year ended December 31, 1995 and has qualified
and continues to qualify as an S corporation for all years and periods
thereafter through and including the close of business on the Closing Date. The
Seller is not and has not been subject to the built-in gains tax under Section
1374 of the Code or to the tax on passive income under Section 1375 of the Code.
SCHEDULE 2.24 lists all the states and localities with respect to which the
Seller is required to file any corporate, income and/or franchise tax returns
and sets forth whether the Seller is treated as the equivalent of an S
corporation by or with respect to each such state and/or locality. Except as
set forth on SCHEDULE 2.24, all federal, state, local and foreign tax returns
and tax reports required to be filed by the Seller on or before the date hereof
have been timely filed with the appropriate governmental agencies in all
jurisdictions in which such returns and reports are required to be filed and all
amounts shown as owing thereon have been paid. All taxes (including, without
limitation, income, accumulated earnings, property, sales, use, franchise,
excise, license, value added, fuel, employees' income withholding and social
security taxes) which have become due or payable or are required to be collected
by the Seller or are otherwise attributable to any periods ending on or before
the Closing Date and all interest and penalties thereon, whether disputed or
not, have been paid or will be paid in full or adequately reflected on the
Balance Sheet or the Seller's books and records in accordance with generally
accepted accounting principles on or prior to the Closing Date. Except as set
forth on SCHEDULE 2.24, all deposits required by law to be made by the Seller
with respect to employees' withholding taxes have been duly made, and as of the
Closing Date all such deposits due will have been made. The Seller has
delivered to the Buyer true and complete copies of all of the Seller's federal
and state income tax returns for the fiscal periods ended December 31, 1997,
1996 and 1995 and all reports and results of income tax audits, if any, related
thereto. Except as set forth on SCHEDULE 2.24, no examination of any tax return
of the Seller is currently in progress. There are no outstanding agreements or
waivers extending the statutory period of limitations applicable to any such tax
return.
SECTION 2.25 LITIGATION. Except as set forth on SCHEDULE 2.25, there is
no (i) action, suit, claim, proceeding or investigation pending or, to the best
knowledge of the Seller, threatened against or affecting the Seller (whether or
not such Seller is a party or prospective party thereto), at law or in equity,
or before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
(ii) arbitration proceeding pending relating to the Seller or (iii) governmental
inquiry pending or threatened against or involving the Seller, and there is no
basis for any of the foregoing. The Seller has not received any opinion or
memorandum or legal advice from legal counsel to the effect that it is exposed,
from a legal standpoint, to any liability or disadvantage which may be material
to the business, prospects, financial condition, operations, property or affairs
of the Seller. There are no outstanding orders, writs, judgments, injunctions
or decrees served upon the Seller by any court, governmental
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agency or arbitration tribunal against the Seller. There are no facts or
circumstances which may result in institution of any action, suit, claim or
legal, administrative or arbitration proceeding or investigation against,
involving or affecting the Seller or the transactions contemplated hereby.
The Seller is not in default with respect to any order, writ, injunction or
decree known to or served upon it from any court or of any federal, state,
municipal or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign. Except as disclosed on SCHEDULE
2.25, there is no action or suit by the Seller pending or threatened against
others.
SECTION 2.26 ENVIRONMENTAL MATTERS.
(a) COMPLIANCE. The Seller and all Leased Parcels are in
compliance with all applicable laws, rules, regulations, orders, ordinances,
judgments and decrees of all governmental authorities with respect to all
environmental statutes, rules and regulations. Except as set forth on
SCHEDULE 2.26, the Seller has not received notice of, nor does the Seller have
knowledge of, any past, present or future events, conditions, circumstances,
activities, practices, incidents, actions or plans of the Seller or the Seller's
predecessors, either collectively, individually or severally, which may
interfere with or prevent continued compliance with, or which may give rise to
any common law or legal liability or otherwise form the basis of any claim,
action, suit, proceeding, hearing, or investigation, based on or related to the
disposal, storage, handling, manufacture, processing, distribution, use,
treatment or transport, or the emission, discharge, release or threatened
release into the environment, of any Substance. As used in this Section 2.26,
the term "Substance" or "Substances" shall mean any pollutant, contaminant,
hazardous substance, hazardous material, hazardous waste or toxic waste, as
defined in any presently enacted federal, state or local statute or any
regulation that has been promulgated pursuant thereto. No part of any of the
Leased Parcels has been listed or proposed for listing on the National
Priorities List established by the United States Environmental Protection
Agency, or any corresponding list by any state or local authorities.
(b) ENVIRONMENTAL SUBSTANCE LIABILITY. No event has occurred or
condition exists or operating practice is being employed that could give rise to
liability on the part of the Seller, either at the present time or in the
future, for any losses, liabilities, damages (whether consequential or
otherwise), settlements, penalties, interest, expenses and costs of responses,
including any such liability on account of the right of any governmental or
private entity or person, and including closure expenses, costs of assessment,
containment, removal, or response (other than monitoring or transportation or
disposal of materials required to be transported or disposed of in the ordinary
course of business consistent with past practice) arising under any rule or
federal, state, or local statute, or any regulation that has been promulgated
pursuant thereto, or common law, as a result of or in connection with, or
alleged to be as a result of or in connection with, the following (collectively
the "Hazardous Activities"):
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(1) the handling, storage, use, transportation or disposal of
any Substances in or near or from the Leased Parcels;
(2) the handling, storage, use, transportation or disposal of
any Substances by the Seller or its predecessors which
Substances were a product, by-product or otherwise
resulted from the operations conducted by or on behalf of
the Seller or its predecessors;
(3) any intentional or unintentional emission, discharge or
release of any Substances in or near or from facilities
into or upon the air, surface water, ground water or land
or any disposal, handling, manufacturing, processing,
distribution, use, treatment, or transport of such
Substances in or near or from facilities by or on behalf
of the Seller or its predecessors; or
(4) the presence of any toxic or hazardous building materials
(including but not limited to friable asbestos or similar
substances) in any facilities of the Seller, including
but not limited to the inclusion of such materials in the
exterior and interior walls, floors, ceilings, tile,
insulation or any other portion of building structures.
(c) ENVIRONMENTAL PERMITS. The Seller has obtained and holds all
registrations, permits, licenses, and approvals issued by or on behalf of any
federal, state or local governmental body or agency if any ("Environmental
Permits") that are required in connection with the operation by the Seller of
the Leased Parcels, the discharge or emission of Substances by the Seller from
the Leased Parcels or the generation, treatment, storage, transportation, or
disposal of any such Substances by the Seller. Such Environmental Permits,
which are described on SCHEDULE 2.26, are currently effective and sufficient for
the operation of the Leased Parcels and the business of the Seller as currently
conducted and intended to be conducted. The Seller is in compliance with all
terms and conditions of the Environmental Permits, and is also in compliance
with all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules, and timetables contained in those laws or
provisions or contained in any regulation, code, plan, order, decree, judgment,
notice or demand letter issued, entered, promulgated or approved thereunder and
applicable to the Seller.
(d) DELIVERIES. The Seller has delivered to the Buyer true and
complete copies and results of any reports, studies, analyses, tests, or
monitoring possessed or initiated by the Seller pertaining to Substances or
Hazardous Activities in, on, or under the Leases Parcels or concerning
compliance by the Seller or any other Person for whose conduct they are or may
be held responsible, with environmental statutes, rules and regulations.
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SECTION 2.27 BROKER'S OR FINDER'S FEES. Except as set forth on SCHEDULE
2.27, no agent, broker, person or firm acting on behalf of the Seller is, or
will be, entitled to any commission or broker's or finder's fees from of the
Seller or from any person controlling, controlled by or under common control
with the Seller in connection with any of the transactions contemplated herein.
SECTION 2.28 YEAR-2000 COMPLIANCE.
(a) SCHEDULE 2.28 contains a true and complete list of all Systems (as
hereinafter defined), and each System is Year-2000 Compliant (as hereinafter
defined) to the extent indicated on SCHEDULE 2.28.
(b) As used throughout this Agreement, the following definitions shall
have the following meanings:
(1) "External Systems" shall mean all services which are provided
to Seller by third parties and which are dependent on
information technology, including, but not limited to, any
external payroll, accounting, or tax filing services or any
checking, savings, or other financial services.
(2) "Internal Systems" shall mean all technology products and
systems generally operated or controlled in-house by Seller, or
its employees, agents, or independent contractors including,
but not limited to, computers, computer networks, telephone
systems, voicemail systems, intercom systems, pager systems,
and software applications.
(3) "Licensed Systems" shall mean all products and systems
developed by or for Seller which are licensed, sold,
distributed, or otherwise transferred by Seller to third
parties.
(4) "System" or "Systems" shall mean any, all, or any combination
of any Internal System, External System, or Licensed System.
(5) "Year-2000 Compliant" shall mean, with respect to each System,
that such System is designed to be used before, during, and
after the calendar year 2000 A.D. and will accurately accept
date input and process, store, and output date data and
date-related data, including, without limitation, calculating,
comparing, sorting, and sequencing such data and calculating
leap years before, during, and after the calendar year 2000
A.D. without any manual intervention.
SECTION 2.29 INVENTORY. The Seller has no inventory.
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SECTION 2.30 ACCOUNTS RECEIVABLE. The accounts receivable and other debts
due or recorded in the respective records and books of account of the Seller as
being due to the Seller as of the Effective Time, all of which are set forth on
SCHEDULE 2.30 (the "Accounts Receivable"), arose in the ordinary course of
business of the Seller, are not subject to any counterclaim or set-off and are
fully collectible within 120 days after the Effective Date without resort to
litigation and without offset or counterclaim.
SECTION 2.31 DISCLOSURE. All Documents delivered or to be delivered by or
on behalf of the Seller in connection with this Agreement and the transactions
contemplated hereby are true, complete and correct. Neither this Agreement, nor
any of the other Documents contains any untrue statement of a material fact or
omits a material fact necessary to make the statements made by the Seller herein
or therein, in light of the circumstances in which made, not misleading. There
is no fact known to the Seller which materially and adversely affects the
business, prospects or financial condition of the Seller or its properties or
assets, which has not been set forth in the Documents.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE BUYER
As an inducement to the Seller to enter into this Agreement and to
consummate the transactions contemplated hereby, the Buyer represents and
warrants to the Seller as follows:
SECTION 3.1 ORGANIZATION. The Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified to transact business as a foreign corporation in each
jurisdiction in which the failure to so qualify would have a material adverse
impact on the Buyer's ability to purchase the Business pursuant to this
Agreement and perform its obligations under this Agreement.
SECTION 3.2 CORPORATE POWER AND AUTHORITY. The Buyer has the corporate
power and authority to execute, deliver and perform this Agreement and the other
Documents. The execution, delivery and performance of the Documents contemplated
hereby and the consummation of the transactions contemplated hereby and thereby
have been duly authorized and approved by all necessary corporate action of the
Buyer. The Documents to be executed and delivered by the Buyer have been duly
executed and delivered by, and constitute the legal, valid and binding
obligation of the Buyer enforceable against the Buyer in accordance with their
terms.
SECTION 3.3 VALIDITY, ETC. Neither the execution and delivery by the
Buyer of this Agreement and the other Documents, the consummation by the Buyer
of the transactions contemplated hereby or thereby, nor the performance by the
Buyer of this Agreement and such other agreements in compliance with the terms
and conditions hereof and thereof will (i) violate, conflict with or result in
any breach of any trust agreement, articles of incorporation, bylaw, judgment,
decree, order, statute or regulation applicable to the Buyer, (ii) violate,
conflict with or result in a breach of or default (or give rise to any right of
termination, cancellation or
17
acceleration) under any law, rule or regulation or any judgment, decree,
order, governmental permit, license or order or any of the terms, conditions
or provisions of any mortgage, indenture, note, license, agreement or other
instrument to which the Buyer is a party, or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Buyer.
SECTION 3.4 BROKER'S OR FINDER'S FEES. No agent, broker, person or firm
acting on behalf of the Buyer is, or will be, entitled to any commission or
broker's or finder's fees from the Buyer, or from any person controlling,
controlled by or under common control with the Buyer, in connection with any of
the transactions contemplated herein.
SECTION 3.5 DISCLOSURE. All Documents delivered or to be delivered by or
on behalf of the Buyer in connection with this Agreement and the transactions
contemplated hereby are true, complete and correct. Neither this Agreement, nor
any of the other Documents contains any untrue statement of a material fact or
omits a material fact necessary to make the statements made by the Buyer herein
or therein, in light of the circumstances in which made, not misleading. There
is no fact known to the Buyer which may have a material adverse effect on the
Buyer's ability to pay its obligations under this Agreement, which has not been
set forth in the Documents.
ARTICLE IV. COVENANTS AND AGREEMENTS
SECTION 4.1 BEST EFFORTS. The Seller and the Buyer shall each use its
best efforts to procure upon reasonable terms and conditions all consents and
approvals, completion of all filings, all registrations and certificates, and
satisfaction of all other requirements prescribed by law which are necessary for
the consummation of the transactions contemplated by this Agreement and the
Buyer's ownership and operation of the Seller's Business after the Closing Date.
Prior to the Closing Date, the Seller will use its best efforts to preserve its
relationships with its employees, customers and others having business
relationships with the Seller.
SECTION 4.2 TAX RETURNS. The Seller shall prepare and timely file, at its
sole expense, all of its required tax returns for all periods ending on or prior
to the Effective Date. The Seller shall be responsible for the payment of, and
will indemnify, defend and hold the Buyer harmless against all taxes due or
assessed which relate to the operations of the Business for all periods ending
on or prior to the Effective Date.
SECTION 4.3 PRESERVATION OF BUSINESS. The Seller shall use its best
efforts to preserve the possession and control of all of its Transferred Assets
and Business, to preserve the goodwill of its customers and others with whom it
has business relations, and to do nothing to impair the ability to keep and
preserve its Business as it exists on the date of this Agreement.
SECTION 4.4 PAYMENT OF LIABILITIES. Except for the Assumed Liabilities,
the Seller shall pay and satisfy in full all of its other obligations and
liabilities, of any nature whatsoever, which accrue prior or subsequent to the
Effective Date.
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SECTION 4.5 EMPLOYEES AND CONSULTANTS. The Buyer and the Seller have
determined in good faith that the closing of the transactions contemplated by
this Agreement will not result in an "employment loss" within the meaning of the
Workers Adjustment Retraining and Notification act, 29 U.S.C. Section 2101 ET
SEQ (the "Warn Act"). The Seller has made all of its employees and consultants
available to be hired by the Buyer. Notwithstanding the foregoing and except as
otherwise set forth in this Agreement, the Buyer shall be under no obligation to
hire any such employees and consultants. The Buyer and the Seller understand
and acknowledge that each is an employer subject to the Warn Act. The Seller
shall be responsible for any Warn Act violations based on or arising from acts,
events or omissions prior to the Closing, and the Buyer shall be responsible for
any Warn Act violations based on or arising from acts, events or omissions after
the Closing. At the Closing, the Seller shall provide to the Buyer a list of
all employees or former employees terminated by the Seller during the ninety
(90) day period prior to the Closing. The Buyer represents and warrants that
during the first ninety (90) days after the Closing it will not terminate any
employee or employees whose termination would, in the aggregate with
terminations by the Seller during the ninety (90) day period prior to the
Closing, result in a violation of the Warn Act. Nothing herein shall be deemed
either to affect or to limit in any way the management prerogatives of the Buyer
with respect to employees, or to create or to grant to such employees any third
party beneficiary rights or claims or causes of action of any kind or nature.
SECTION 4.6 SPECIAL PROVISIONS REGARDING EMPLOYEES OF THE SELLER.
(a) NEW EMPLOYEES OF THE BUYER. It is the intention of the Buyer,
and the Seller hereby acknowledges and agrees with such position, that any
employees of the Seller that the Buyer hires will be new employees of the Buyer
as of the Effective Date or the date of hire, whichever is later. Such new
employees shall be entitled only to such compensation and employee benefits as
are agreed to by such employees and the Buyer or as are otherwise provided by
the Buyer, in its sole discretion.
(b) HIRING OF EMPLOYEES. The Buyer will use its reasonable efforts
to hire the existing employees of the Seller engaged in the Business in
connection with its purchase of the Transferred Assets; provided, however, that
the Buyer shall be entitled to review employee records, conduct employee
interviews and employee screening procedures used by the Buyer in its business,
and may refuse to offer employment to any employee of the Seller if such
employee fails to meet the hiring criteria of the Buyer.
(c) NO CONTRIBUTIONS. After the Closing, the Seller shall make no
contributions to any Employee Plan on behalf of any former employee or
independent contractor of the Seller who is employed by the Buyer after the
Closing.
(d) COBRA ISSUES. The Buyer shall be a successor employer of
Seller solely for the purposes of providing continuation coverage to the extent
required under Code Section 4980B and ERISA Section 601 to individuals
receiving such continuation coverage on the Effective Date and individuals
qualifying (or who would otherwise qualify but for this Section 4.5) for such
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coverage commencing on or after the Effective Date. The Seller shall be liable
for any and all liabilities, costs, expenses and fees whatsoever arising under
Code Section 4980B and ERISA Section 601 before the Effective Date.
SECTION 4.7 CONSENTS OF LANDLORDS. Within 30 days following the Closing
Date, the Seller shall have obtained consents (when required by the terms of the
lease) from all lessors of real property leased by the Business to the
assignment of such leases to the Buyer without any amendment, modification or
change in the terms of such leases.
SECTION 4.8 AUDITED FINANCIAL STATEMENTS. The Seller shall furnish to the
Buyer, as soon as practical and at Seller's expense, audited financial
statements of the Seller for the three (3) fiscal years ending December 31,
1997, 1996 and 1995.
ARTICLE V. CONDITIONS TO THE BUYER'S OBLIGATIONS
The obligation of the Buyer to make deliveries to the Seller pursuant to
Section 1.2 and 1.3 hereof and to consummate the other transactions contemplated
hereby is subject to the satisfaction, on or before the Closing Date, of the
following conditions each of which may be waived by the Buyer in its sole
discretion:
SECTION 5.1 CONSENTS. Except for the consents of landlords provided for
in Section 4.12 above and except as set forth on SCHEDULE 5.1, all requisite
governmental approvals identified on and consents of third parties identified on
such schedule or otherwise identified by the Seller as required to be received
to prevent any material license, permit or agreement relating to the Business
from terminating prior to its scheduled termination, as a result of the
consummation of the transactions contemplated hereby, shall have been obtained
and all permits listed in SCHEDULE 2.13 shall have been transferred or reissued
to the Buyer.
SECTION 5.2 EMPLOYMENT AGREEMENT. Xxxxxxx X. Xxxxx shall have executed
and delivered to the Buyer, an Employment Agreement, in substantially the form
attached hereto as EXHIBIT D.
SECTION 5.3 NONCOMPETITION AGREEMENT. Xxxxxxx X. Xxxxx shall have
executed and delivered to the Buyer, a Noncompetition Agreement, in
substantially the form attached hereto as EXHIBIT E.
SECTION 5.4 OPINION OF COUNSEL TO THE SELLER. Buyer shall receive from
Xxxxx X. Xxxxxxxx, Esq., counsel to the Seller, an opinion, dated as of the
Closing Date, in form and substance reasonably satisfactory to Buyer, and to the
following effect:
(a) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Missouri. The nature of the
business does not require the Seller to be licensed or qualified in any other
jurisdiction;
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(b) The Seller has the corporate power and authority to execute,
deliver and perform this Agreement and the other Documents. The execution,
delivery and performance of this Agreement and the other Documents and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized and approved by all necessary corporate action of the Seller. This
Agreement and each of the other Documents to be executed and delivered by the
Seller have been duly executed and delivered by, and constitute the legal, valid
and binding obligations of the Seller, enforceable against the Seller in
accordance with their terms; and
(c) In connection with the Seller's purchase, transfer and
acceptance of the assets and certain liabilities of Nu-View Windows of St.
Louis, Inc. ("NuView St. Louis"), a Missouri corporation, and Nu-View Windows of
Illinois, Inc. ("NuView Illinois"), an Illinois corporation, on or about January
1997, there has been no assertion of successor liability against the Seller by
any third party and the Seller is not and cannot be deemed a "successor" to
NuView St. Louis or NuView Illinois under the laws of the state of Missouri.
(d) The Employment Agreement has been duly executed and delivered
by, and constitutes the legal, valid and binding obligation of Xxxxxxx X. Xxxxx
enforceable against him in accordance with its terms;
(e) The Noncompetition Agreement has been duly executed and
delivered by, and constitutes the legal, valid and binding obligation of Xxxxxxx
X. Xxxxx enforceable against him in accordance with its terms;
(f) There is no (i) action, suit, claim, proceeding or
investigation pending or, to the best knowledge of Counsel, threatened against
or affecting the Seller (whether or not the Seller is a party or prospective
party thereto), at law or in equity, or before or by any Federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) arbitration proceeding pending
relating to the Seller or (iii) governmental inquiry pending or threatened
against or involving the Seller, and, to the best knowledge of counsel, there is
no basis for any of the foregoing. The Seller has not received any opinion or
memorandum or legal advice from legal counsel to the effect that it is exposed,
from a legal standpoint, to any liability or disadvantage which may be material
to the business, prospects, financial condition, operations, property or affairs
of the Seller. There are no outstanding orders, writs, judgments, injunctions
or decrees served upon the Seller by any court, governmental agency or
arbitration tribunal against the Seller. To the best knowledge of counsel, there
are no facts or circumstances which may result in institution of any action,
suit, claim or legal, administrative or arbitration proceeding or investigation
against, involving or affecting the Seller or the transactions contemplated
hereby. The Seller is not in default with respect to any order, writ,
injunction or decree known to or served upon it from any court or of any
Federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign. There is no action or
suit by the Seller pending or threatened against others;
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(g) The execution and delivery of this Agreement and the other
Documents, the consummation of the transactions contemplated hereby and thereby,
and the performance of the Agreement and such other agreements in compliance
with the terms and conditions hereof and thereof by the Seller will not (i)
violate, conflict with or result in any breach of any trust agreement, articles
of incorporation, bylaw, judgment, decree, order, statute or regulation
applicable to the Seller, (ii) violate, conflict with or result in a breach,
default or termination or give rise to any right of termination, cancellation or
acceleration of the maturity of any payment date of any of the obligations of
the Seller or increase or otherwise affect the obligations of the Seller under
any law, rule, regulation or any judgment, decree, order, governmental permit,
license or order or any of the terms, conditions or provisions of any mortgage,
indenture, note, license, agreement or other instrument or obligation related to
the Seller or to the Seller's ability to consummate the transactions
contemplated hereby or thereby, except for such defaults (or rights of
termination, cancellation or acceleration) as to which requisite waivers or
consents have been obtained in writing and provided to the Buyer, (iii) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
the Seller or (iv) result in the creation of any Claim upon the Transferred
Assets; and
(h) The Xxxx of Sale conveys all right, title and interest in and
to the Transferred Assets.
SECTION 5.5 CHANGE OF CORPORATE NAME. The Seller shall amend its
respective Articles of Incorporation to change its name to a name other than
"NuView Industries." The Seller shall deliver to the Buyer at the Closing, an
executed copy of such Amendment to the Articles of Incorporation, and any such
other documents or consents needed to effectuate such change in name, for filing
with the Office of the Missouri Secretary of State. Also, the Seller shall
withdraw its assumed trade or fictitious names, which are set forth on SCHEDULE
5.5 hereto. The Seller shall deliver to the Buyer at the Closing, an executed
copy of such withdrawal, and any such other documents or consents needed to
effectuate such change in name, for filing with the Office of the Missouri
Secretary of State.
SECTION 5.6 CLOSING DOCUMENTS. The Seller shall have delivered all of the
resolutions, certificates, documents and instruments required by this Agreement.
SECTION 5.7 APPROVAL OF THE BUYER AND ITS COUNSEL. All actions,
proceedings, consents, instruments and documents required to be delivered by, or
at the behest or direction of, the Seller hereunder or incident to its
performance hereunder, and all other related matters, shall be reasonably
satisfactory as to form and substance to the Buyer and its counsel.
ARTICLE VI. CONDITIONS TO THE SELLER'S OBLIGATIONS
The obligation of the Seller to transfer the Transferred Assets to the
Buyer and to consummate the other transactions contemplated hereby is subject to
the satisfaction, on or
22
before the Closing Date, of the following conditions, each of which may be
waived by the Seller in its sole discretion:
SECTION 6.1 EMPLOYMENT AGREEMENT. The Buyer shall have executed and
delivered an Employment Agreement, in substantially the form attached hereto as
EXHIBIT D.
SECTION 6.2 OPINION OF XXXXXX & XXXXXXXX. The Seller shall have received
from Xxxxxx & Xxxxxxxx, counsel to the Buyer, an opinion dated as of the Closing
Date, in form and substance reasonably satisfactory to the Seller, and to the
following effect:
(a) The Buyer is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is duly qualified
to transact business as a foreign corporation in each jurisdiction in which the
failure to so qualify would have a material adverse impact on the Buyer's
ability to pay its obligations under this Agreement;
(b) The Buyer has the corporate power and authority to execute,
deliver and perform the Agreement and the other Documents. The execution,
delivery and performance of the Agreement and the other Documents and the
consummation of the transactions contemplated hereby and thereby have been duly
and validly executed and delivered by the Buyer and constitute the legal, valid
and binding obligations of the Buyer, enforceable against the Buyer in
accordance with their terms; and
(c) The execution and delivery of the Agreement and the other
Documents, the consummation of the transactions contemplated hereby and thereby,
and the performance of the Agreement and such other agreements in compliance
with the terms and conditions hereof and thereof by the Buyer will not (i)
violate, conflict with or result in any breach of any trust agreement, articles
of incorporation, bylaw, judgment, decree, order, statute or regulation
applicable to the Buyer, (ii) violate, conflict with or result in a breach of or
default (or give rise to any right of termination, cancellation or acceleration)
under any law, rule or regulation or any judgment, decree, order, governmental
permit, license or order or any of the terms, conditions or provisions of any
mortgage, indenture, note, license, agreement or other instrument to which the
Buyer is a party, or (iii) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to the Buyer.
SECTION 6.3 CLOSING DOCUMENTS. The Buyer shall have delivered all of the
resolutions, certificates, documents and instruments required by this Agreement.
SECTION 6.4 APPROVAL OF THE SELLER AND ITS COUNSEL. All actions,
proceedings, consents, instruments and documents required to be delivered by, or
at the behest or direction of, the Buyer hereunder or incident to its
performance hereunder, and all other related matters, shall be reasonably
satisfactory as to form and substance to the Seller and its counsel.
23
ARTICLE VII. THE CLOSING AND CERTAIN CLOSING DELIVERIES
SECTION 7.1 TIME AND PLACE OF CLOSING. Upon the terms and subject to the
satisfaction or waiver of the conditions contained in this Agreement, the
closing of the transactions contemplated by this Agreement (the "Closing") shall
take place at the offices of Xxxxx X. Xxxxxxxx, Esq., 00000 Xxxxxxxxxxx Xx.,
Xxxxx 000, Xx. Xxxxx, XX 00000, on the date hereof (the "Closing Date"). The
transactions contemplated by this Agreement shall be effective as of the close
of business (the "Effective Time") on the date hereof (the "Effective Date").
SECTION 7.2 DELIVERIES BY THE SELLER. At the Closing, the Seller will
deliver or cause to be delivered to the Buyer the following:
(a) All required consents of third parties to the sale conveyance,
transfer, assignment and delivery of the Transferred Assets and Business of the
Seller hereunder;
(b) A certificate of the Secretary of the Seller certifying as of
the Closing Date, (i) a true, correct, and complete copy of the Certificate of
Incorporation of the Seller and all amendments thereto as in effect on the
Closing Date; (ii) a true, correct, and complete copy of the by-laws of the
Seller and all amendments thereto as in effect on the Closing Date; (iii) a
true, correct, and complete copy of the resolutions approved and adopted by the
Seller's Board of Directors and Shareholders authorizing and approving the
execution, performance and delivery of this Agreement and the transactions
contemplated by this Agreement; (iv) Good Standing Certificate from the Missouri
Secretary of State and all other jurisdictions where the Seller is qualified to
do business; and (v) the incumbency of the duly authorized officers of the
Seller.
(c) The affidavit of the Seller certifying as to its non-foreign
status in accordance with Section 1445(b)(2) of the Code;
(d) The Xxxx of Sale required by Section 1.1(c);
(e) The Assignment and Assumption Agreement required by
Section 1.1(c);
(f) The Sublease Agreement required by Section 1.1(c);
(g) The Employment Agreement required by Section 5.2;
(h) The Noncompetition Agreement required by Section 5.3;
(i) The opinion of the Seller's counsel required by Section 5.4
above;
(j) Duly executed Amendment to the Articles of Incorporation of the
Seller and withdrawal of assumed trade names as required by Section 5.5 above;
24
(k) Upon joint written request by the Seller and the Buyer, a
statement from the Missouri director of revenue showing that no employment
security, withholding, sales and use, income and franchise taxes, interest,
addition to tax or penalties are due;
(l) A Certificate of Discharge of the personal property of the
Seller signed by the Internal Revenue Service; and
(m) All other documents, instruments and writings required to be
delivered by the Seller at or prior to the Closing Date pursuant to this
Agreement or otherwise required in connection herewith.
SECTION 7.3 DELIVERIES BY THE BUYER. At the Closing, the Buyer will
deliver the following to or for the account of the Seller or certain of its
employees, as the case may be:
(a) The payment required by Section 1.2(a) above;
(b) The Assignment and Assumption Agreement required by
Section 1.3;
(c) The Sublease Agreement required by Section 1.3;
(d) The Employment Agreement required by Section 6.1 above;
(e) The Opinion of the Buyer's counsel required by Section 6.2
above;
(f) A certificate of an officer of the Buyer certifying as of the
Closing Date (i) a true, correct, and complete copy of the Articles of
Incorporation of the Buyer and all amendments thereto as in effect on the
Closing Date; (ii) a true, correct, and complete copy of the bylaws of the Buyer
and all amendments thereto as in effect on the Closing Date; (iii) a true,
correct, and complete copy of the resolutions approved and adopted by the Board
of Directors of the Buyer authorizing the transactions contemplated herein; and
(iv) Good Standing Certificate from the Delaware Secretary of State; and
(g) All other documents, instruments and writings required to be
delivered by the Buyer at or prior to the Closing Date pursuant to this
Agreement or otherwise required in connection herewith.
ARTICLE VIII. [INTENTIONALLY OMITTED]
ARTICLE IX. INDEMNIFICATION
SECTION 9.1 SURVIVAL. All representations and warranties in this
Agreement and the other Documents shall survive the Closing of the purchase of
the Transferred Assets
25
contemplated hereby and any investigation at any time made by or on behalf of
any party for a period of three years and all such representations and
warranties shall expire on the third anniversary of the Closing Date, except
that (a) claims, if any, asserted in writing prior to such third anniversary
identified as a claim for indemnification pursuant to this Article IX shall
survive until finally resolved and satisfied in full; (b) any Year-2000
Indemnification Obligations (as hereinafter defined) shall survive until
February 1, 2003 and until finally resolved and satisfied in full if asserted
on or prior to February 1, 2003; and (c) tax or environmental claims arising
from a breach of Section 2.24 or Section 2.26, respectively, shall survive
for the full period of the applicable statute of limitations, and until
finally resolved and satisfied in full if asserted on or prior to the
expiration of any such period. The representations and warranties shall not
be affected or otherwise diminished by any investigation at any time by or on
behalf of the party for whose benefit such representations and warranties
were made.
SECTION 9.2 INDEMNIFICATION BY THE SELLER. Subject to the terms herein,
the Seller and Miles, jointly and severally, shall indemnify, defend, and hold
the Buyer and the respective officers, directors, and employees of the Buyer,
and their successors and assigns (the "Seller's Indemnitees") harmless from,
against and with respect to any claim, liability, obligation, loss, damage,
assessment, judgment, cost or expense of any kind or character, including
reasonable attorneys' fees, whether known or unknown (the "Damages"), arising
out of or in any manner incident, relating or attributable to:
(a) Any inaccuracy in any representation or breach of any warranty
of the Seller contained in this Agreement; or
(b) Any failure by the Seller to perform or observe, or to have
performed or observed, in full, any covenant, agreement or
condition to be performed or observed by it under this
Agreement; or
(c) Reliance by the Buyer on any books or records of the Seller or
written information furnished to the Buyer pursuant to this
Agreement by or on behalf of the Seller in the event that such
books and records or written information are false or
materially inaccurate; or
(d) Damages relating to, or arising out of, the operation of the
Business prior to the Closing Date or facts and circumstances
relating specifically to the Business, the Leased Parcels, or
the Seller existing at or prior to the Closing Date, including
but not limited to matters set forth on SCHEDULE 2.25, whether
or not such liabilities, obligations or claims were known on
such date, excluding only the Assumed Liabilities; or
(e) Damages relating to, or arising out of, the Seller's purchase,
transfer and acceptance of assets and liabilities from NuView
St. Louis and
26
NuView Illinois, or facts and circumstances relating to such
acquired assets and liabilities, including, but not limited to
Damages pursuant to Section 288.110 X.X.Xx.; or
(f) Damages relating to, or arising out of any pension, profit
sharing, retirement, deferred compensation, stock purchase,
stock option, incentive, bonus, vacation, severance,
disability, hospitalization, medical insurance, life insurance,
fringe benefit, welfare and other employee benefit plans,
programs or arrangements pursuant to which NuView St. Louis,
NuView Illinois or any of the ERISA Affiliates of either
provided (directly or indirectly, individually or jointly
through others) benefits or compensation to or on behalf of
employees or independent contractors or former employees or
former independent contractors of NuView St. Louis or NuView
Illinois or any of the ERISA Affiliates of either, whether
formal or informal, whether or not written, including, but not
limited to the NuView Employees Savings Plan maintained by
NuView St. Louis and NuView Illinois.
Provided, however, the Seller's Indemnitees shall not be entitled to
indemnification or offset hereunder until Damages in total exceed $10,000 and
then only to the extent of aggregate Damages in excess of $10,000; provided
further, however, this limitation or "basket" shall not apply to any Damages
arising in connection with the representations and warranties with respect to
taxes and successor liability as set forth in Sections 2.24, 2.25, 9.2(e) or
9.2(f) hereof, respectively.
SECTION 9.3 NOTICE TO THE SELLER, ETC. If any of the matters as to which
the Seller's Indemnitees are entitled to receive indemnification under Section
9.2 should entail litigation with or claims asserted by parties other than the
Seller, the Seller shall be given prompt notice thereof and shall have the
right, at his expense, to control such claim or litigation upon prompt notice to
the Buyer of his election to do so. To the extent requested by the Seller, the
Buyer, at its expense, shall cooperate with and assist the Seller, in connection
with such claim or litigation. The Buyer shall have the right to appoint, at
its expense, single counsel to consult with and remain advised by the Seller in
connection with such claim or litigation. The Seller shall have final authority
to determine all matters in connection with such claim or litigation; PROVIDED,
HOWEVER, that the Seller shall not settle any third party claim without the
consent of the Buyer, which shall not be unreasonably denied or delayed.
SECTION 9.4 INDEMNIFICATION BY THE BUYER. The Buyer shall indemnify,
defend, and hold the Seller and its successors and assigns (the "Buyer's
Indemnitees") harmless from, against and with respect to any claim, liability,
obligation, loss, damage, assessment, judgment, cost or expense of any kind or
character, including reasonable attorneys' fees (the "Damages"), arising out of
or in any manner incident, relating or attributable to:
27
(a) Any inaccuracy in any representation or breach of warranty of
the Buyer contained in this Agreement;
(b) Any failure by the Buyer to perform or observe, or to have
performed or observed, in full, any covenant, agreement or
condition to be performed or observed by it under any of the
Documents;
(c) Reliance by the Seller on any books or records of the Buyer or
reliance by the Seller on any written information furnished to
the Seller pursuant to this Agreement by or on behalf of the
Buyer in the event that such books and records or written
information are false or inaccurate;
(d) The failure of the Buyer to pay or perform the Assumed
Liabilities, Contracts and Leases subsequent to the Closing
Date; or
(e) Liabilities or obligations of, or claims against, the Seller
(whether absolute, accrued, contingent or otherwise) relating
to, or arising out of, the operation of the Business subsequent
to the Closing Date.
Provided, however, the Buyer's Indemnitees shall not be entitled to
indemnification hereunder until Damages in total exceed $10,000 and then only to
the extent of aggregate damages in excess of $10,000.
SECTION 9.5 NOTICE TO THE BUYER, ETC. If any of the matters as to which
the Buyer's Indemnitees are entitled to receive indemnification under Section
9.4 should entail litigation with or claims asserted by parties other than the
Buyer, the Buyer shall be given prompt notice thereof and shall have the right,
at its expense, to control such claim or litigation upon prompt notice to the
Seller of its election to do so. To the extent requested by the Buyer, the
Seller, at his expense, shall cooperate with and assist the Buyer, in connection
with such claim or litigation. The Seller shall have the right to appoint, at
its expense, single counsel to consult with and remain advised by the Buyer in
connection with such claim or litigation. The Buyer shall have final authority
to determine all matters in connection with such claim or litigation; PROVIDED,
HOWEVER, that the Buyer shall not settle any third party claim without the
consent of the Seller, which shall not be unreasonably denied or delayed.
SECTION 9.6 SURVIVAL OF INDEMNIFICATION. The obligations to indemnify and
hold harmless pursuant to this Article IX shall survive the Closing of the
purchase of the Transferred Assets contemplated hereby for a period of three
years, notwithstanding any investigation at any time made by or on behalf of any
party, except that (a) claims, if any, asserted in writing prior to such third
anniversary identified as a claim for indemnification pursuant to this Article
IX shall survive until finally resolved and satisfied in full; (b) any Year-2000
Indemnification Obligations (as hereinafter defined) shall survive until
February 1,
28
2003 and until finally resolved and satisfied in full if asserted on or prior
to February 1, 2003; and (c) tax or environmental claims arising from a
breach of Section 2.24 or Section 2.26, respectively, shall survive for the
full period of the applicable statute of limitations, and until finally
resolved and satisfied in full if asserted on or prior to the expiration of
any such period. As used in this Article IX, the term "Year-2000
Indemnification Obligations" shall mean Seller's obligation to indemnify,
defend, and hold the Seller's Indemnitees harmless from, against and with
respect to any Damages arising out of or in any manner incident, relating or
attributable to (i) any claim or allegation that any Licensed System is not
Year-2000 Compliant and (ii) any claim arising from a breach of Section 2.28.
SECTION 9.7 OFFSET. The Seller acknowledges and agrees that the Buyer
shall be entitled to offset any indemnity claim under Section 9.2 against any
payment due to the Seller under Section 1.2(b) hereof at the Buyer's sole
option. Neither the exercise of nor the failure to give a notice of a Claim
shall constitute an election of remedies nor limit Indemnitee in any manner in
the enforcement of any other remedies that may be available to it.
ARTICLE X. MISCELLANEOUS
SECTION 10.1 KNOWLEDGE OF THE SELLER. Where any representation or
warranty contained in this Agreement is expressly qualified by reference to the
best knowledge of the Seller, the Seller confirms that it has made due and
diligent inquiry of its President as to the matters that are the subject of such
representation and warranty.
SECTION 10.2 KNOWLEDGE OF THE BUYER. Where any representation or warranty
contained in this Agreement is expressly qualified by reference to the best of
knowledge of the Buyer, the Buyer confirms that it has made due and diligent
inquiry of its President as to the matters that are the subject of such
representations and warranties.
SECTION 10.3 "PERSON" DEFINED. "Person" shall mean and include an
individual, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or other department or agency
thereof.
SECTION 10.4 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) sent by recognized overnight courier, (iii) made by telecopy or facsimile
transmission, or (iv) sent by registered or certified mail, return receipt
requested, postage prepaid.
29
If to the Buyer:
ThermoView Industries, Inc.
0000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx,
President
Fax No: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxxx
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Coffee, Esq.
Fax No: (000) 000-0000
If to the Seller:
Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Fax No: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Fax No: (000) 000-0000
All notices, requests, consents and other communications hereunder shall be
deemed to have been given (i) if by hand, at the time of the delivery thereof to
the receiving party at the address of such party set forth above, (ii) if sent
by overnight courier, on the next business day following the day such notice is
delivered to the courier service, (iii) if made by telecopy or facsimile
transmission, at the time that receipt thereof has been acknowledged by
electronic confirmation or otherwise, or (iv) if sent by registered or certified
mail, on the fifth business day following the day such mailing is sent. The
address of any party herein may be changed at any time by written notice to the
parties.
SECTION 10.5 ENTIRE AGREEMENT. This Agreement and the other Documents
embody the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersede all prior oral or written
agreements and understandings relating to the subject matter hereof. No
statement, representation, warranty, covenant or
30
agreement of any kind not expressly set forth in the other Documents shall
affect, or be used to interpret, change or restrict, the express terms and
provisions of this Agreement.
SECTION 10.6 MODIFICATIONS AND AMENDMENTS. The terms and provisions of
this Agreement may be modified or amended only by written agreement executed by
all parties hereto.
SECTION 10.7 ASSIGNMENT/BINDING EFFECT. Neither this Agreement, nor any
right hereunder, may be assigned by any of the parties hereto without the prior
written consent of the other parties, provided, however, that the Buyer may
assign its rights to acquire the Transferred Assets and its obligations to
assume the Assumed Liabilities to Subsidiary. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
heirs, personal representatives, successors and permitted assigns.
SECTION 10.8 PARTIES IN INTEREST. Nothing in this Agreement, express or
implied, is intended to confer upon any other person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. Nothing in this
Agreement shall be construed to create any rights or obligations except among
the parties hereto, and no person or entity shall be regarded as a third-party
beneficiary of this Agreement.
SECTION 10.9 GOVERNING LAW. This Agreement and the rights and obligations
of the parties hereunder shall be construed in accordance with and governed by
the internal laws of the State of Missouri without giving effect to the conflict
of law principles thereof.
SECTION 10.10 ARBITRATION. Any dispute or difference between the parties
hereto arising out of or relating to this Agreement shall be finally settled by
arbitration in accordance with the Commercial Rules of the American Arbitration
Association by a panel of three qualified arbitrators. The Seller and the Buyer
shall each choose an arbitrator and the third shall be chosen by the two so
chosen. If either the Seller or the Buyer fails to choose an arbitrator within
30 days after notice of commencement of arbitration or if the two arbitrators
fail to choose a third arbitrator within 30 days after their appointment, the
American Arbitration Association shall, upon the request of any party to the
dispute or difference, appoint the arbitrator or arbitrators to constitute or
complete the panel as the case may be. Arbitration proceedings hereunder may be
initiated by either the Seller or the Buyer making a written request to the
American Arbitration Association, together with any appropriate filing fee, at
the office of the American Arbitration Association in St. Louis, Missouri. All
arbitration proceedings shall be held in St. Louis, Missouri. Any order or
determination of the arbitral tribunal shall be final and binding upon the
parties to the arbitration and may be entered in any court having jurisdiction.
SECTION 10.11 SEVERABILITY. In the event that any arbitral tribunal of
competent jurisdiction shall finally determine that any provision, or any
portion thereof, contained in this Agreement shall be void or unenforceable in
any respect, then such provision shall be deemed limited to the extent that such
arbitral tribunal determines it enforceable, and as so
31
limited shall remain in full force and effect. In the event that such
arbitral tribunal shall determine any such provision, or portion thereof,
wholly unenforceable, the remaining provisions of this Agreement shall
nevertheless remain in full force and effect.
SECTION 10.12 INTERPRETATION. The parties hereto acknowledge and agree
that: (i) the rule of construction to the effect that any ambiguities are
resolved against the drafting party shall not be employed in the interpretation
of this Agreement, and (ii) the terms and provisions of this Agreement shall be
construed fairly as to all parties hereto and not in favor of or against any
party, regardless of which party was generally responsible for the preparation
of this Agreement.
SECTION 10.13 HEADINGS AND CAPTIONS. The headings and captions of the
various subdivisions of this Agreement are for convenience of reference only and
shall in no way modify, or affect, or be considered in construing or
interpreting the meaning or construction of any of the terms or provisions
hereof.
SECTION 10.14 RELIANCE. The parties hereto agree that, notwithstanding
any right of any party to this Agreement to investigate the affairs of any other
party to this Agreement, the party having such right to investigate shall have
the right to rely fully upon the representations and warranties of the other
party expressly contained herein.
SECTION 10.15 EXPENSES. Each party shall pay its own fees and expenses
(including the fees of any attorneys, accountants, appraisers or others engaged
by such party) incurred in connection with this Agreement and the transactions
contemplated hereby whether or not the transactions contemplated hereby are
consummated.
SECTION 10.16 GENDER. All pronouns and any variation thereof shall be
deemed to refer to the masculine, feminine, neuter, singular, or plural as the
identity of the person or entity or the context may require.
SECTION 10.17 PUBLICITY. Except by the mutual agreement between the
Seller and the Buyer, no party shall issue any press release or otherwise make
any public statement with respect to the execution of, or the transactions
contemplated by, this Agreement except as may be required by law.
SECTION 10.18 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
32
IN WITNESS WHEREOF, the Buyer and the Seller have each caused its duly
authorized officer to execute this Agreement and Miles has executed this
Agreement as of the day and year first above written.
Buyer: THERMOVIEW INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx, President
Seller: NUVIEW INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx, President
/s/ Xxxxxxx X. Xxxxx
------------------------------------------------------
XXXXXXX X. XXXXX, individually
33
