EXHIBIT 7.1
ASSET PURCHASE AGREEMENT
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THIS AGREEMENT is entered into as of January 18, 2002 by and among PDH,
INC. an Indiana corporation (the "Purchaser"), and DICKSONHUGHES GROUP, LLC, an
Indiana limited liability company (the "Seller"). Purchaser and Seller may
collectively be referred to herein as the "Parties." Xxxxxx X. Xxxxxxx
("Xxxxxxx"), Xxxxx X. Xxxxxx ("Xxxxxx"), and S. Xxxxx Xxxxxxx ("Xxxxxxx") have
executed this Agreement for the limited purposes described in Sections 6 and
9.4.
WITNESSETH:
WHEREAS, subject to the terms and conditions hereof, Purchaser desires
to purchase and Seller desires to sell all of the assets, properties and rights
relating to or used or useful in connection with Seller's business of assisting
wireless telecommunication companies in acquiring and/or leasing sites for
telecommunications facilities and equipment (the "Business");
NOW, THEREFORE, in order to consummate said purchase and sale and in
consideration of the mutual agreements set forth herein, the Parties hereto
agree as follows:
SECTION 1
PURCHASE AND SALE OF ASSETS
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1.1 Sale of Assets. Subject to the provisions of this Agreement, Seller
agrees to sell and Purchaser agrees to purchase, on such date (the "Closing
Date"), all of Seller's right, title and interest in and to the properties,
assets and operations comprising the Business of every kind and description,
tangible and intangible, personal or mixed, and wherever located, and all of
Seller's goodwill, backlog, customer lists, customer deposits, telephone
numbers, trade and product names, proprietary property and products relating to
the Business, and all Seller's right, title and interest in and to all other
fixed assets and equipment of Seller not used in the Business, except in each
case Excluded Assets. All of the assets described or referred to in this Section
1.1 (except Excluded Assets) are hereinafter referred to as the "Subject Assets"
and include, without limitation, those assets set forth below:
(a) All work-in-process, software and related assets relating
to the Business, and all fixed assets, equipment and machinery, computer
hardware and fixtures of Seller whether or not relating to the Business,
including without limitation those set forth in Schedule 1.1(a) attached hereto
and made a part hereof;
(b) A complete customer list of the Business's customers
current as of the Closing Date;
(c) All Intellectual Property (as defined in Section 2.6),
which shall specifically include without limitation all of Seller's rights to
and in reporting forms, tracking systems, Seller's software licenses and
Seller's rights in a copyrighted management system; and
(d) To the extent permitted by the terms of each Assumed
Contract (as defined below) and applicable law, all outstanding sales proposals,
purchase orders, agreements or contracts to provide or receive goods and/or
services in connection with the Business, all customer agreements, vendor
agreements, commitments, agreements and licenses relating to the Intellectual
Property, as set forth in Schedule 1.1(d) attached hereto and made a part hereof
(the "Assumed Contracts");
(e) All choses in action, causes of action, employment
agreements with employees engaged in the Business other than Xxxxxx and Xxxxxxx,
accounts receivable relating to the Business (the "Accounts Receivable") and
other intangible assets as set forth in Schedule 1.1(e) attached hereto and made
a part hereof;
(f) Prepaid expenses relating to a trade show scheduled to
occur after the Closing Date; and
(g) A leased telephone system, the purchase price for which
shall be paid in full from the Purchase Price.
1.2 Excluded Assets. Purchaser and Seller agree and acknowledge that
notwithstanding anything to the contrary set forth in Section 1.1, Seller is not
transferring to Purchaser and Purchaser is not purchasing any of the following
property (hereinafter referred to as the "Excluded Assets"):
(a) Seller's organizational records and business, tax, and
financial records, stationery and business cards, which relate to Seller
generally or solely to the Seller's commercial real estate business;
(b) Cash and cash equivalents, tax refunds, insurance proceeds
and prepaid expenses (except as provided in Section 1.1(f));
(c) Any and all assets relating solely to Seller's commercial
real estate business (other than fixed assets, equipment, computer hardware, and
fixtures), including but not limited to listing agreements and any proceeds
thereof;
(d) Rights of Seller under a certain Franchise Agreement with
The Prudential Real Estate Affiliates, Inc. ("Prudential") (the "Prudential
Franchise"), including rights to use the name Prudential and any Service Marks,
trademarks, or logos licensed to Seller under the Prudential Franchise;
(e) The assumed name "Prudential DicksonHughes Commercial
Services"; and
(f) Seller's website and URL.
1.3 Assumption of Liabilities It is expressly understood and agreed
that Purchaser is not assuming or becoming liable for any liabilities of Seller
of any kind or nature at any time existing or asserted, whether known or
unknown, fixed, contingent or otherwise not specifically assumed herein by
Purchaser. Notwithstanding the foregoing, upon the sale and purchase of the
Subject Assets, Purchaser shall accept and assume and, as the case may be, pay,
discharge, perform and observe in the ordinary course, the following, and only
the following liabilities, duties and obligations (the "Assumed Liabilities"):
(a) All of Seller's rights and executory obligations under the
Assumed Contracts to be performed after the Closing Date (excluding any
obligations or liabilities of Seller under any Assumed Contract that were to
have been performed, fulfilled or satisfied on or prior to the Closing Date).
(b) From and after the Closing Date, Purchaser may employ for
the operation of the Business those employees of Seller as listed in Schedule
1.3(b) attached hereto and made a part hereof, and shall be responsible for the
payment of all wages and expenses of such personnel hired by it, (excluding any
obligations or liabilities of Seller that were to have been performed, fulfilled
or satisfied on or prior to the Closing Date).
1.4 Excluded Liabilities. The liabilities and obligations of Seller,
whether fixed, contingent, known or unknown and whether existing as of the
Closing Date or arising thereafter which are not specifically assumed by
Purchaser under Section 1.3 of this Agreement are hereinafter referred to as the
"Excluded Liabilities." Seller hereby acknowledges and agrees that, except for
the Assumed Liabilities, Purchaser is not assuming or becoming liable for, and
Seller shall remain exclusively liable for, all of the Excluded Liabilities.
1.5 Purchase Price. In consideration of the sale by Seller to Purchaser
of the Subject Assets, and subject to the other terms and conditions contained
herein, Purchaser agrees to pay, subject to the adjustments described below, the
sum of Seven Hundred Forty Thousand Two Hundred Seven Dollars ($740,207.00) (the
"Purchase Price"):
(a) On January 22, 2002, Purchaser will pay the Purchase Price
in full to or for the account of Seller by certified or cashier's check, or wire
transfer, as directed by Seller. Purchaser and Seller hereby agree to allocate
the Purchase Price, as set forth on Schedule 1.5(a) attached hereto and made a
part hereof, among the classes of Subject Assets and to file its federal income
tax returns and its other tax returns reflecting such allocation, including Form
8594 and any other reports required by Section 1060 of the Internal Revenue Code
of 1986, as amended ("Code"); and
(b) As of the Closing Date, the Accounts Receivable acquired
by Purchaser are assumed to be one hundred percent (100%) collectible. Upon
acquisition of the Accounts Receivable, Purchaser shall for a period of one
hundred fifty (150) days after the Date of Closing ("Collection Period") make
reasonable efforts, in the ordinary course of business, to collect the Accounts
Receivable. Promptly after completion of the Collection Period, Purchaser shall
reassign to Seller or its designee any Accounts Receivable (including all
relevant records) that it has been unable to collect during the Collection
Period. The amount of Accounts Receivable reassigned to Seller shall decrease
the Purchase Price on a dollar-for-dollar basis and Seller shall pay such
decreased amount promptly to Purchaser; provided, however, that no decrease in
the Purchase Price shall occur until and unless the amounts of such Accounts
Receivable not collected during the Collection Period exceeds Twenty-Five
Thousand Dollars ($25,000.00).
1.6. Transfer of Subject Assets. On the Closing Date, Seller shall
deliver or cause to be delivered to Purchaser good and sufficient instruments of
transfer, transferring to Purchaser title to all of the Subject Assets. Such
instruments of transfer (a) shall be in the form and will contain the
warranties, covenants and other provisions (not inconsistent with the provisions
hereof) which are usual and customary for transferring the type of property
involved under the laws of the jurisdictions applicable to such transfers, (b)
shall be in form and substance reasonably satisfactory to Purchaser and its
counsel, and (c) except as otherwise provided in this Agreement, shall
effectively vest in Purchaser good and marketable title to all the Subject
Assets free and clear of all licenses, liens, encumbrances, mortgages and
security interests whatsoever (collectively "Liens") other than Assumed
Liabilities. To the extent allowed under each Assumed Contract and to the extent
allowed by law, on the Closing Date, Seller shall also deliver or cause to be
delivered to Purchaser all of the Assumed Contracts and such assignments thereof
as are necessary to assure Purchaser their full and useful benefit.
Notwithstanding the foregoing, however, the parties acknowledge that Seller
shall have no obligation at or after Closing to obtain or deliver to Purchaser
any consents required under the Assumed Contracts in connection with the
transactions described in this Agreement. Seller and Purchaser shall at and
subsequent to the Closing Date cooperate in the transition of the Business and
the Assumed Contracts to Purchaser, including any commercially reasonable
efforts to maintain the goodwill and business of customers of the Business.
1.7 Related Agreements. On the Closing Date, Purchaser and Seller shall
have entered into: (a) the Xxxx of Sale (Exhibit A) made by Seller in favor of
Purchaser (b) any other agreements necessary to the consummation of this
Agreement and the operation of the Business, which collectively are referred to
herein as the "Related Agreements." The Parties, Thimlar, Dickson, and Xxxxxx
agree to consider and negotiate in good faith within a reasonable period after
closing the terms of their employment or other involvement in the Business. In
no event, however, shall Xxxxxxx perform or be required to perform, directly or
indirectly, for and on behalf of the Purchaser or any affiliate, any services
relating to construction or maintenance of telecommunication facilities.
SECTION 2
SELLER'S REPRESENTATIONS AND WARRANTIES
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As a material inducement to Purchaser to enter into this Agreement and
consummate the transactions contemplated hereby, Seller hereby makes to
Purchaser the representations, warranties and covenants contained in this
Section 2 as of the date of this Agreement and such representations and
warranties shall be correct and complete as of the Closing Date (as though made
then and as though the Closing Date were substituted for the date of this
Agreement, throughout this Section 2).
2.1 Organization of Seller. Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of Indiana, with
full power and authority to own or lease its properties and to conduct the
Business in the manner and in the places where such properties are owned or
leased or such business is currently conducted. Seller is duly qualified to
conduct the Business in all states in which the failure to so qualify would have
a material adverse effect on the Business.
2.2 Authority of Seller. Seller has the full right, authority and power
to enter into this Agreement and each agreement, document and instrument to be
executed and delivered by or on behalf of Seller pursuant to this Agreement (the
"Seller Documents") and to carry out the transactions contemplated hereby and
thereby. The execution, delivery and performance by Seller of this Agreement and
Seller Documents have been duly authorized by all necessary action of Seller and
its members or other persons with any interests therein and no other action on
the part of Seller is required in connection therewith. This Agreement and
Seller Documents executed and delivered by Seller pursuant to this Agreement
constitute, or when executed and delivered will constitute, valid and binding
obligations of Seller enforceable in accordance with their respective terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency or other similar laws affecting creditors' rights. The execution,
delivery and performance by Seller of this Agreement, Seller Documents and the
consummation of the transactions contemplated hereby or thereby:
(a) Does not and will not violate any provision of the
organizational documents or operating agreement of Seller, in each case as
amended to date;
(b) Does not and will not violate any laws of the United
States, or any state or other jurisdiction applicable to Seller or (subject to
the provisions of Sections 1.6 and 7.2(a)(iv)) require Seller to obtain any
approval, consent or waiver of, or make any filing with, any person or entity
(governmental or otherwise) that has not been obtained or made;
(c) Subject to the provisions of Sections 1.6, 7.2(a)(iv) and
7.2(a)(v)does not and will not result in a breach of, constitute a default
under, accelerate any obligation under, or give rise to a right of termination
of any indenture, loan or credit agreement or any other agreement, contract
instrument mortgage, lien, lease, permit authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which Seller is a
party or by which any of the property of Seller is bound or affected, or result
in the creation or imposition of any Lien (except for Assumed Liabilities) on
any of the Subject Assets. The officers or agents of Seller who execute this
Agreement and Seller Documents contemplated hereby on behalf of Seller have and
shall have all requisite power to do so in the name of and on behalf of Seller.
The representations and warranties of Seller in this Section 2.2 are subject to
the execution and delivery of releases of the Comerica Lien and the Xxxxxxx Xxxx
as described in Section 7.2(a)(iv), and to the provisions regarding Assumed
Contracts described in Section 1.6.
2.3 Absence of Restrictions. Seller has made no other agreement with
any other party with respect to the sale or any other disposition or encumbrance
of the Business or the Subject Assets.
2.4 Title to Assets; Physical Condition of Assets. Subject to the
provisions of Section 1.6, Section 7.2(a)(iv) and Section 7.2(a)(v), Seller has
good, marketable and indefeasible title to all of the Subject Assets, free and
clear of all claims, liabilities, restrictions and Liens. Upon the sale,
assignment, transfer and delivery of the Subject Assets to Purchaser under and
in accordance with this Agreement and Seller Documents, there will be vested in
Purchaser good, marketable and indefeasible title to the Subject Assets, free
and clear of all Liens. The Subject Assets: (i) include all assets and
properties used or held for use by Seller to conduct the Business as currently
conducted; and (ii) include all assets and properties necessary for Purchaser to
operate the Business in the same manner as Seller. The Parties agree that the
physical condition of the fixed assets shall be and that the Subject Assets
shall be delivered on an "as-is, where is" basis.
2.5 Seller's Business Operations. Seller has no liabilities of any
nature, whether accrued, absolute, contingent or otherwise, asserted or
unasserted, known or unknown (including without limitation liabilities as
guarantor or otherwise with respect to obligations of others, or liabilities for
taxes due or then accrued or to become due or contingent or potential
liabilities relating to activities of the Business or the conduct of the
Business) which will materially and adversely affect the conduct of the Business
subsequent to Closing, except liabilities (including Assumed Contracts)
disclosed in this Agreement and liabilities relating to bona fide accounts
payable to third party trade creditors.
2.6 Intellectual Property.
(a) Seller has exclusive ownership of, or valid license or authority to
use, all copyrights, trade secrets, know how, computer software, licenses,
trademarks, service marks, trade or product names, company names, logos,
customer lists, mailing lists, sales and advertising material, engineering
information, technology, development rights, drawings and designs, customer
specifications, supplier information, systems, data compilations, research
results or other proprietary rights, other than Excluded Assets and subject to
any existing rights of third parties (collectively, "Intellectual Property")
used in the Business as presently conducted, including but not limited to those
set forth in Schedule 2.6(a) attached hereto and made a part hereof. The
Intellectual Property is freely transferable to Purchaser and constitutes all of
the technology, proprietary rights and intellectual property necessary in order
for Purchaser to operate the Business in the ordinary course as presently
conducted and perform the Assumed Contracts in accordance with their terms.
Seller has the non-exclusive right to use, free and clear of claims or rights of
other persons, all of the Intellectual Property without payments to or consents
from any other party.
(b) All licenses or other agreements (if any) under which Seller is
granted rights in any of the Intellectual Property are in full force and effect
and there is no material default by any party thereto. The licensors under said
licenses and other agreements (if any) have and had all requisite power and
authority to grant the rights purported to be conferred thereby. True and
complete copies of all such licenses or other agreements, and any amendments
thereto (if any) have been provided on Schedule 2.6(b) attached hereto.
(c) To the knowledge of Seller, neither the Business nor Seller's use
of any Intellectual Property infringes any rights of any other person. With
regard to the Business, Seller is not to Seller's knowledge making unauthorized
use of any confidential information or trade secrets of any person, including
without limitation any former employer or any past or present employee of
Seller.
2.7 Assumed Contracts. All of the Assumed Contracts have been entered
into in the ordinary course of business, are in full force and effect and have
not been amended, extended or otherwise modified (whether orally or in writing),
except for amendments, extensions, and modifications made in the ordinary course
of business consistent with past practices of the Business. Neither Seller nor
any other party thereto is in default under any such Assumed Contracts (a
"default" being defined for purposes hereof as an actual default, other than
late payment of an Account Receivable, or any set of facts which would, upon
receipt of notice or passage of time or both, constitute a default, other than
late payment of an Account Receivable). Seller is not a party to or subject to
any contract or agreement that will impose any material obligations on Purchaser
(except for the obligations to be performed under the Assumed Contracts in the
ordinary course of business) or otherwise materially impair the value of the
Subject Assets after the Closing Date. All of the terms of each Assumed Contract
as amended, are set forth in writing and true and complete written copies of all
of the Assumed Contracts have been provided to Purchaser.
2.8 No Litigation; Compliance. There is no litigation or governmental
or administrative proceeding or investigation pending or, to Seller's knowledge,
threatened against Seller or any of its affiliates which may have an adverse
effect on the Business or the Subject Assets subsequent to Closing, or which
would prevent the consummation of the transactions contemplated by this
Agreement or the Related Agreements. Seller has not received notice of any
violation or alleged violation of any applicable statute, ordinance, order, rule
or regulation.
2.9 Taxes. Seller has paid or caused to be paid any and all federal,
state, local, foreign and other taxes, and all deficiencies, or other additions
to tax, interest, fines and penalties that are due and payable by Seller through
the Closing Date, whether disputed or not. Seller has, in accordance with
all applicable law, filed all federal, state, local, foreign and other tax
returns required to be filed by Seller through the Closing Date, and all such
returns correctly and accurately set forth the amount of any taxes relating to
the applicable period. There is no unassessed tax deficiency proposed or
threatened against the Business. None of the Subject Assets are or will be
subject to any lien or encumbrance for taxes which are past due or which became
payable or accrued on or prior to the Closing Date.
2.10 Insurance. The liability and casualty insurance policies
pertaining to the Business are in full force and effect. All premiums due to the
date hereto have been paid in full and such policies will remain in effect
through the Closing Date. All such policies have been issued by reputable
insurance companies which are actively engaged in the insurance business and
authorized to issue policies in Seller's jurisdiction(s) of business operation.
2.11 Warranty or Other Claims. There are no existing or threatened
malpractice, errors or omissions, warranty or other similar claims against
Seller for products or services relating to the Business or any Subject Asset.
Seller shall be responsible for any malpractice claims, errors or omissions
claims, warranty claims or any other claims relating to Business products or
services that it sold or provided prior to the Closing Date.
2.12 Environmental Matters.
(a) In regards to the Business, (i) Seller has no liability
under, nor has it violated, any Environmental Law; (ii) any property owned,
operated, leased, or used by Seller, and any facilities and operations thereon,
are presently in compliance with all applicable Environmental Laws; (iii) Seller
has never entered into or been subject to any judgment, consent decree,
compliance order, or administrative order with respect to any environmental or
health and safety matter or received any request for information, notice, demand
letter, administrative inquiry, or formal or informal complaint or claim with
respect to any environmental or health and safety matter or the enforcement of
any Environmental Law; and (iv) none of the items enumerated in clause (iii) of
this subsection will to the knowledge of Seller be forthcoming.
(b) Schedule 2.12(b) attached hereto and made a part hereof
sets forth copies of all documents, records and information available to Seller
concerning any environmental or health and safety matter relevant to the
Business, whether generated by Seller or others, including without limitation
environmental audits, environmental risk assessments, site assessments,
documentation regarding off-site disposal of Hazardous Materials, spill control
plans and reports, correspondence, permits, licenses, approvals, consents and
other authorizations related to environmental or health and safety matters
issued by any governmental agency.
(c) For purposes of this Section, (i) "Hazardous Material"
shall mean and include any hazardous waste, hazardous material, hazardous
substance, petroleum product, oil, toxic substance, pollutant, contaminant or
other substance which may pose a threat to the environment or to human health or
safety, as defined or regulated under any Environmental Law; (ii) "Hazardous
Waste", shall mean and include any hazardous waste as defined or regulated under
any Environmental Law; (iii) "Environmental Law" shall mean any environmental or
health and safety-related law, regulation, rule, ordinance, or by-law at the
foreign, federal, state, or local level, whether existing as of the date hereof,
previously enforced, or subsequently enacted; and (iv) "Seller" shall mean and
include Seller and all other entities for whose conduct Seller is or may be held
responsible under any Environmental Law.
2.13 Permits, Consents.
(a) Schedule 2.13(a) attached hereto and made a part hereof
lists all permits, registrations, licenses, franchises, authorizations,
certifications and other approvals (collectively, the "Approvals") that are
necessary for the conduct of the Business. Seller has obtained all such
Approvals, which are valid and in full force and effect and is operating in
compliance therewith. Such Approvals include but are not limited to those
required under federal, state or local statutes, ordinances, orders,
requirements, rules, regulations or laws pertaining to environmental protection,
public health and safety, worker health and safety, buildings, highways or
zoning. To the extent allowed by applicable law, all such Approvals will be
available and assigned to Purchaser and remain in full force and effect upon
Purchaser's acquisition of the Subject Assets, and (subject to the provisions of
Section 5.4) no further Approvals will be required in order for Purchaser to
conduct the Business subsequent to the Closing Date.
(b) Except for the releases of the Comerica Lien and the
Xxxxxxx Xxxx, and except for consents of third parties under the Assumed
Contracts, no approval, consent, authorization, notification or exemption from
or filing with any person or entity not a party to this Agreement (collectively,
the "Consents") is required to be obtained or made by Seller in connection with
the execution and delivery of this Agreement and Seller Documents or the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, any Consent necessary to permit Purchaser's continuation of
the Business or any Consent necessary for Seller's effective transfer of each of
the Subject Assets, or assignment of each of the Assumed Contracts (without
triggering a breach, default, termination or other modification in any such
Assumed Contract) to Purchaser.
2.14 Finder's Fee. Purchaser shall not become liable for any broker's
commission or finder's fee relating to or in connection with the transaction
contemplated by this Agreement or the Related Agreements.
2.15 Transactions with Interested Persons. Neither Seller nor any
principal, officer, supervisory employee or director of Seller or any of their
respective spouses or family members owns directly or indirectly, on an
individual or joint basis, any material interest in, or serves as an officer or
director or in another similar capacity of, any competitor or supplier of
Seller, or any organization which has a material contract or arrangement with
Seller.
2.16 Collectibility of Accounts Receivable. All of the Accounts
Receivable of Seller are or will be as of the Closing Date bona fide, valid and
enforceable claims not subject to any setoffs or counterclaims and are
collectible in accordance with their terms. Seller has no accounts or loans
receivable from any person, firm or corporation which is affiliated with Seller
or from any director, officer or employee of Seller, or from any of their
respective spouses or family members (excluding travel advances).
2.17 Customers. Schedule 2.17(a) attached hereto and made a part hereof
sets forth the customers that have ordered more than $1,000.00 during the twelve
(12) months ended December 31, 2001 (collectively, the "Customers").
SECTION 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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As a material inducement to Seller to enter into this Agreement and
consummate the transactions contemplated hereby, Purchaser hereby makes the
representations and warranties to Seller contained in this Section 3. The
statements contained in this Section 3 are correct and complete as of the date
of this Agreement and will be correct and complete as of Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout Section 3).
3.1 Organization of Purchaser. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Indiana with full corporate power to own or lease its properties and to conduct
its business in the manner and in the places where such properties are owned or
leased or such business is conducted.
3.2 Authority of Purchaser. Purchaser has full right, authority and
power to enter into this Agreement and each agreement, document and instrument
to be executed and delivered by Purchaser pursuant to this Agreement (the
"Purchaser Documents") and to carry out the transactions contemplated hereby and
thereby. The execution, delivery and performance by Purchaser of this Agreement
and Purchaser Documents have been duly authorized by all necessary action of
Purchaser and no other action on the part of Purchaser is required in connection
therewith. This Agreement and Purchaser Documents executed and delivered by
Purchaser pursuant to this Agreement constitute, or when executed and delivered
will constitute, valid and binding obligations of Purchaser enforceable in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency or other similar laws affecting creditor's
rights. The execution, delivery and performance by Purchaser of this Agreement
and Purchaser Documents and the consummation of the transactions contemplated
hereby or thereby:
(a) does not and will not violate any provision of the Articles of
Incorporation or By-laws of Purchaser, in each case as amended to date;
(b) does not and will not violate any laws of the United States, or any
state or other jurisdiction applicable to Purchaser or require Purchaser to
obtain any material approval, consent or waiver of, or make any filing with, any
person or entity (governmental or otherwise) that has not been obtained or made;
and
(c) does not and will not result in a breach of, constitute a default
under, accelerate any obligation under, or give rise to a right of termination
of any indenture or loan or credit agreement or any other agreement, contract,
instrument, mortgage, lien, lease, permit, authorization, order, writ, judgment,
injunction decree, determination or arbitration award to which Purchaser is a
party and which is material to the business and financial condition of
Purchaser.
The officers or agents who execute this Agreement and the Related Agreements on
behalf of Purchaser have and shall have all requisite power to do so in the name
of and on behalf of Purchaser.
3.3 No Litigation. There is no litigation or governmental or administrative
proceeding or investigation pending or, to Purchaser's knowledge, threatened
against Purchaser or any of his affiliates which may have a material adverse
effect on business of Purchaser in the aggregate, or which would prevent or
hinder the consummation of the transactions contemplated by this Agreement or
the Related Agreements.
SECTION 4
PRE-CLOSING COVENANTS
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The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing:
4.1 General. Each of the Parties will use its reasonable best efforts
to take all action and to do all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement.
4.2 Ordinary Course of Business. Seller will not engage in any
practice, take any action, embark on any course of inaction, or enter into any
transaction outside the ordinary course of business relating to the Business.
4.3 Preservation of Business. Seller will use commercially reasonable
efforts to keep the Business and properties of Seller substantially intact,
including its present operations, physical facilities, working conditions and
relationships with lessors, licensors, suppliers, customers and employees.
SECTION 5
RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING DATE
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5.1 Further Assurances. Subject to the provisions of Section 1.3,
Seller, from time to time after the Closing Date at the request of Purchaser and
without further consideration, shall execute and deliver further instruments of
transfer and assignment and take such other action as Purchaser may reasonably
require to more effectively transfer and assign to, and invest in, Purchaser
each of the Subject Assets. Nothing herein shall be deemed a waiver by Purchaser
of its right to receive on the Closing Date an effective assignment of each of
the Assumed Contracts, subject to the provisions of Section 1.3.
5.2 Collection of Assets. Subsequent to the Closing Date, Purchaser
shall have the right and authority to collect all Accounts Receivable and other
items transferred and assigned to it by Seller and Seller agree hereunder to
endorse with the name of Seller any checks received on account of such
receivables or other items, and Seller agrees that it will promptly transfer or
deliver to Purchaser from time to time any property that Seller may receive with
respect to any claims, contracts, licenses, leases, commitments, sales orders,
purchase orders, or any other items included in the Subject Assets.
5.3 Names and Marks. Subsequent to the Closing Date, Purchaser shall
not use in connection with the Business or otherwise any names or marks
containing the word "Prudential" or any service marks or logos licensed by
Seller under the Prudential Franchise Agreement, and shall not use any other
corporate, business or assumed name, or name or xxxx containing the names
"Xxxxxxx", and/or "Xxxxxx" without the prior written consent of Seller.
5.4 Assignment of Real Estate Licenses. Subsequent to the Closing Date,
Seller shall effect the assignment of all real estate licenses of Purchaser's
employees engaged in the Business to Xxxxxxx as Purchaser's principal broker.
SECTION 6
NONCOMPETITION, CONFIDENTIAL1TY,
AND NON-SOLICITATION OF EMPLOYEES
---------------------------------
6.1 Definitions. For purposes of this Section 6, the following terms
shall have the meanings indicated below:
(a) "Telecommunications Services" shall mean the services of assisting
wireless telecommunications companies in acquiring and/or leasing sites for
telecommunications facilities and equipment;
(b) A "current customer" of Seller shall mean any person or entity to
which Seller shall have provided any Telecommunications Services at any time
within a period of one (1) year prior to the Closing Date;
(c) A "prospective customer" of Seller shall mean any person or entity
which, at any time during the six (6) month period prior to the Closing Date,
has been engaged in active contact or discussion with Seller, or to which Seller
has submitted or from which Seller has received a quote, bid, or proposal, in
connection with the potential provision of Telecommunications Services by
Seller;
6.2 Noncompetition. Seller, Xxxxxxx, Xxxxxx and Xxxxxxx, each and
individually, agree that for a period of three (3) years as to Xxxxxxx and
Seller, and one (1) year as to Xxxxxx and Xxxxxxx, all from the Closing Date,
Seller, Xxxxxxx, Xxxxxx and Xxxxxxx will not directly or indirectly, for
themselves, individually or in concert, or for another person, proprietorship,
partnership, corporation, or trust, or any other entity, as an individual or as
an owner, employee, agent, officer, director, trustee, or in any other capacity:
(a) Engage in, whether as employee, owner, manager, operator, or by
direct or indirect control, a business providing Telecommunications Services
within the State of Indiana;
(b) Market, solicit, or participate, or aid in the marketing or
solicitation of Seller's current or prospective customers with respect to
providing Telecommunications Services;
(c) Solicit, aid or participate in the solicitation, including allowing
the use of their name in connection with the solicitation of, Seller's current
or prospective customers with respect to providing any Telecommunications
Services;
(d) Provide any Telecommunications Services to any of Seller's current
or prospective customers; or
(e) Solicit or contact or aid or participate in the contact, including
allowing the use of their name in connection with the contact of, Seller's or
Purchaser's employees, for the purpose of inducing them to terminate their
employment with Purchaser.
Provided; however, that Xxxxxx and Xxxxxxx, but not Xxxxxxx, may,
without violation of this section, provide Telecommunications Services as a
full-time (and not temporary) employee of a company (for example, Voicestream,
Cellular One, Verizon) directly engaged in providing cellular telephone,
personal communications service, or other wireless or other telecommunications
services to its direct customers, provided that such Telecommunications Services
are exclusively for such company.
6.3 Confidentiality. For a period of three (3) years as to Xxxxxxx and
Seller, and one (1) year as to Xxxxxx and Xxxxxxx, all from the Closing Date,
Seller, Xxxxxxx, Xxxxxx and Xxxxxxx, individually or in concert, shall not
directly or indirectly furnish, divulge, reveal, report, publish or disclose
(other than as may be required under applicable law) any Confidential
Information (as hereinafter defined) to any person, firm, corporation or other
entity, or use (or assist any person to use) such Confidential Information. For
purposes of this Agreement, the term "Confidential Information" means all
information or material not generally known to the public, which gives Purchaser
or any of its affiliates some competitive business advantage or the opportunity
of obtaining such advantage, or the disclosure of which could be detrimental to
the interests of Purchaser or any of its affiliates, including without
limitation, trade secrets, inventions, file data, documentation, diagrams,
specifications, know how, models, customer lists, sales representative lists,
proprietary information, marketing techniques and materials, marketing and
development plans, price lists, pricing policies, business plans, supplier
relationships and agreements, financial information and projections, and
employee files. "Confidential Information" also includes any information
described above which Purchaser or any of its affiliates obtains from another
party and which Purchaser or any of its affiliates treats as proprietary or
designates as Confidential Information, whether or not owned or developed by
Purchaser or any of its affiliates.
6.4 Scope of Agreement. The Parties acknowledge that the time, scope,
geographic area and other provisions of this Section 6 of this Agreement have
been specifically negotiated by sophisticated commercial parties and agree that
(i) all such provisions are reasonable under the circumstances of the
transactions contemplated by this Agreement, and (ii) are given as an integral
and essential part of the transactions contemplated by this Agreement. The
Parties have each consulted with counsel and has been advised in all respects
concerning the reasonableness and proprietary of the covenants contained herein.
6.5 Specific Performance; Severability.The parties agree that in the
event of a breach of any of these covenants and prohibitions, Purchaser shall
suffer immediate, immeasurable, and irreparable harm and damage, and accordingly
the parties agree as follows:
(a) These covenants shall be construed as agreements independent of any
other provision of this Agreement, and the existence of any claim or cause of
action the Seller, Xxxxxxx, Xxxxxx and Xxxxxxx may take against Purchaser,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement of these covenants by Purchaser;
(b) In the event of a violation of any of these covenants, the terms of
all covenants shall be automatically extended for a period equal to the
violation;
(c) Purchaser shall be entitled to recover reasonable attorney's fees
incurred in the enforcement of these covenants; and
(d) Each covenant is separate and distinct from every other covenant,
and in the event of the invalidity of any one covenant, the remaining
obligations shall be deemed independent and enforceable.
SECTION 7
CLOSING
-------
7.1 Time. The Closing hereunder shall occur on or before January 18,
2002.
7.2 Deliveries.
(a) At the Closing, Purchaser shall receive all of the
following, in form and substance reasonably satisfactory to Purchaser (it being
agreed by Purchaser that the documents attached hereto as exhibits are
satisfactory in form to Purchaser):
(i) a xxxx of sale and assignment for the Personal
Property in the form of Exhibit A reasonably
acceptable to Purchaser (the "Xxxx of Sale"), executed
by Seller;
(ii) a certified copy of resolutions of the Manager
of Seller authorizing the execution, delivery and
performance of this Agreement and the Related
Agreements to which Seller is a party;
(iii) the Related Agreements identified in Section
1.7;
(iv) releases by Comerica Bank and Xxxxxxx of their
respective security interests in the Subject Assets;
and
(v) evidence satisfactory to Purchaser of the payment
of the balance due by Seller for the leased telephone
system, as provided in Section 1.1.
(b) Seller shall have received from Purchaser all of the
following, in form and substance reasonably satisfactory to Seller (it being
agreed by Seller that the documents attached hereto as exhibits are satisfactory
in form to Seller):
(i) payment of the Purchase Price;
(ii) a certified copy of resolutions of the Board of
Directors of Purchaser authorizing the execution,
delivery and performance of this Agreement and the
Related Agreements to which Purchaser is a party; and
(iii) the Related Agreements identified in Section
1.7;
SECTION 8
WAIVER
------
Each party hereto may, at any time or times, at its election, waive any
of the conditions to its obligations hereunder by a written waiver expressly
detailing the extent of such waiver (and no other waiver or alleged waiver by
such party shall be effective for any purpose.) No such waiver shall reduce the
rights or remedies of such party by reason of any breach by the other party or
parties of any of its or their obligations hereunder.
SECTION 9
INDEMNIFICATION
---------------
9.1 Indemnification by Seller. In addition to and in no way limiting
any other provisions of this Agreement:
(a) Seller hereby agrees subsequent to the Closing Date to
indemnify and hold Purchaser and persons serving as shareholders, officers,
directors, employees or agents thereof (individually a "Purchaser Indemnified
Party" and collectively, the "Purchaser Indemnified Parties") harmless from, and
against any damages, liabilities, losses, taxes, fines, penalties, costs, and
expenses (including, without limitation, reasonable fees of counsel)
(collectively, "Purchaser Indemnified Losses") of any kind or nature whatsoever
(whether or not arising out of third party claims and including all amounts paid
in investigation, defense or settlement of the foregoing) which may be sustained
or suffered by any of them arising out of or based upon any of the following
matters:
(i) fraud or intentional misrepresentation by Seller
in or of any of its representations, warranties or
covenants under this Agreement or any Related
Agreement or in any certificate, schedule, exhibit or
financial statement delivered pursuant hereto or
thereto;
(ii) any other breach of any representation, warranty
or covenant of Seller under this Agreement or any
Related Agreement or in any certificate, schedule,
exhibit or financial statement delivered pursuant
hereto or thereto, or by reason of any claim, action
or proceedings asserted or instituted growing out of
any matter or thing constituting a breach of such
representations or warranties or covenants or any
conduct by Seller or any affiliate of the Business or
performance by Seller or any affiliate under any
Assumed Contract prior to closing; and
(iii) any liability obligation of Seller relating to
any Excluded Liabilities.
(b) Notwithstanding the foregoing, the right of Purchaser
Indemnified Parties to indemnification under subsection 9.1(a) shall be subject
to the following provisions:
(i) no indemnification pursuant to Subsection 9.1(a)
shall be payable to any Purchaser Indemnified Party
unless the total of Purchaser Indemnified Losses
pursuant to Subsection 9.1(a) shall exceed Twenty-Five
Thousand and 00/100 Dollars ($25,000.00) in the
aggregate, whereupon the full amount of such claims in
excess of Twenty-Five Thousand and 00/100 Purchaser
Indemnified Losses that result from or relate to a
breach of Sections 2.4 and 2.9 of this Agreement by
Seller; and (ii) Purchaser Indemnified Losses under
Section 9.1(a)(i), shall entitle Purchaser to recover
such Purchaser Indemnified Losses dollar for dollar
without regard to the Twenty-Five Thousand and 00/100
Dollars ($25,000.00) threshold;
(ii) the indemnification obligations of Seller with
respect to claims pursuant to Subsections 9.1(a)(ii)
and 9.1(a)(iii) shall be limited in the aggregate to
the Purchase Price (the "Indemnification Cap"); and
(iii) no indemnification shall be payable to a
Purchaser Indemnified Party with respect to a claim
asserted pursuant to Subsection 9.1(a) at any time
after the date two (2) years subsequent to the Closing
Date (the "Indemnification Termination Date");
provided however, that any written claims made by
Purchaser Indemnified Parties pursuant to Section 9.1
(a) prior to the Indemnification Termination Date
which have not been resolved prior to the
Indemnification Termination Date may be pursued and
resolved after the Indemnification Termination Date.
Notwithstanding the foregoing, the two (2) year
survival period shall not apply to breaches of Section
2.4.
The provisions of Section 9.1(b)(i) shall not apply to nonpayment of
Accounts Receivable subsequent to Closing, which shall be subject to the
provisions of Section 1.5(b), and any reassignment of Accounts Receivable under
Section 1.5(b) shall not be applied against the threshold in Section 9.1(b)(i).
9.2 Indemnification by Purchaser.
(a) Purchaser agrees subsequent to the Closing Date to
indemnify and hold Seller and persons serving as shareholders, officers,
directors, employees or agents thereof (individually a "Seller Indemnified
Party" and collectively the "Seller Indemnified Parties") harmless from and
against any damages, liabilities, losses, taxes, fines, penalties, costs and
expenses (including without limitation, reasonable fees of counsel) ("Seller
Indemnified Losses") of any kind or nature whatsoever (whether or not arising
out of third party claims and including all amounts paid in investigation,
defense or settlement of the foregoing) which may be sustained or suffered by
any of them arising out of or based upon any of the following matters:
(i) fraud or intentional misrepresentation by
Purchaser in or of any of its representations,
warranties or covenants under this Agreement or any
Related Agreements or in any certificate, schedule,
exhibit or financial statement delivered pursuant
hereto or thereto; and
(ii) any other breach of any representation, warranty
or covenant of Purchaser under this Agreement or any
Related Agreements or in any certificate, schedule,
exhibit or financial statement delivered pursuant
hereto, or by reason of any claim, action or
proceeding asserted or instituted growing out of any
matter or thing constituting a breach of such
representations, warranties or covenants, or any
conduct by Purchaser or any affiliate of the Business
or performance by Purchaser or any affiliate under any
Assumed Contract subsequent to Closing.
(b) Notwithstanding the foregoing, the right of Seller
Indemnified Parties to indemnification under Subsection 9.2(a) shall be subject
to the following provisions:
(i) no indemnification pursuant to Subsection 9.2(a)
shall be payable to a Seller Indemnified Party unless
the total of all Seller Indemnified Losses pursuant to
Subsection 9.2(a) shall exceed Twenty-Five Thousand
and 00/100 Dollars ($25,000.00) in the aggregate,
whereupon the full amount of such Seller Indemnified
Losses in excess of Twenty-Five Thousand and 00/100
Dollars ($25,000.00) shall be recoverable; provided
however, that (i) Seller Indemnified Losses that
result from or relate to a breach of Section 9.2(a)(i)
shall entitle Seller Indemnified Parties to recover
such Seller Indemnified Losses dollar for dollar
without regard to the Twenty-Five Thousand and 00/100
Dollars ($25,000.00) threshold, provided, however,
that the threshold amount shall not apply to any
obligation of the Purchaser to pay the Purchase Price;
(ii) the indemnification obligations of Purchaser
hereunder with respect to claims pursuant to Section
9.2(a)(ii) shall be limited in the aggregate to the
Indemnification Cap; and
(iii) no indemnification shall be payable to a Seller
Indemnified Party with respect to a claim asserted
pursuant to Section 9.2(a) at any time after the
Indemnification Termination Date, which as to the
Purchaser shall be the date two (2) years after the
Closing Date; provided however, that any written
claims made by Seller Indemnified Parties pursuant to
Section 9.2(a) prior to the Indemnification
Termination Date which have not been resolved prior to
the Indemnification Termination Date may be pursued
and resolved after the Indemnification Termination
Date.
9.3 Notice: Defense of Claims. If indemnification is sought for a claim
or liability asserted by a third party, the indemnified party shall give written
notice thereof to the indemnifying party within ten (10) days after it receives
notice of the claim or liability being asserted, but the failure to do so shall
not relieve the indemnifying party from any liability except to the extent that
it is prejudiced by the failure or delay in giving such notice. Such notice
shall summarize the basis for the claim for indemnification and any claim or
liability being asserted by the third party. Within ten (10) days after
receiving such notice, the indemnifying party shall give written notice to the
indemnified party stating whether it will defend against any third party claim
or liability at its own cost and expense. If the indemnifying party gives notice
to the indemnified party of its intent to defend such claim within such ten (10)
day period, the indemnifying party shall be entitled to direct the defense
against the third party claim or liability with counsel selected by it (subject
to the consent of the indemnified party, which consent shall not be unreasonably
withheld) as long as the indemnifying party is conducting a good faith defense.
The indemnified party shall at all times have the right to fully participate in
the defense of a third party claim or liability at its own expense directly or
through counsel; provided however, that if the named parties to the action or
proceeding include both the indemnifying party and the indemnified party and the
indemnified party is advised by its counsel that representation of both parties
by the same counsel would be inappropriate under applicable standards of
professional conduct, the indemnified party may engage separate counsel at the
expense of the indemnifying party. If no such notice of intent to defend a third
party claim or liability is given by the indemnifying party, or if such good
faith defense is not being or ceases to be conducted by the indemnifying party,
the indemnified party shall have the right, at the expense of the indemnifying
party, to undertake the defense of such claim or liability (with counsel
selected by the indemnified party). If the third party claim or liability is one
that by its nature cannot be defended solely by the indemnifying party, then the
indemnified party shall make available such information and assistance as the
indemnifying party may reasonably request and shall cooperate with the
indemnifying party in such defense at the expense of the indemnifying party.
Neither the indemnifying party nor the indemnified party shall settle any third
party claim without the consent of the other (which consent shall not be
unreasonably withheld.)
9.4 Guarantee of Thimlar, Hughes, and Xxxxxxx. Thimlar, Hughes, and
Xxxxxxx hereby severally guarantee at and after the Closing Date prompt payment
of any and all amounts which may become due and owing to Purchaser by Seller
under and subject to the terms of Section 9. Any such amounts shall be payable
by Thimlar, Hughes, and Xxxxxxx to Purchaser in the following proportions,
respectively:
Thimlar - 52%
Xxxxxx - 24%
Xxxxxxx - 24%
SECTION 10
MISCELLANEOUS
-------------
10.1 Fees and Expenses. Each of the parties will bear its own expenses
in connection with the negotiation and the consummation of the transactions
contemplated by this Agreement, including but not limited to fees for attorneys,
accountants and other advisers.
10.2 Governing Law. This Agreement and the Related Agreements and all
disputes, whether equitable or legal in nature, that arise under this Agreement
that relate in any way to the rights or duties of the parties hereto or thereto,
shall be governed by the internal laws of the State of Indiana, without regard
to the conflict or choice of laws provisions thereof.
10.3 Notices. All notices and other communications which either party
is required or desires to send to the other shall be in writing and shall be
sent by messenger, facsimile, reputable overnight courier or registered or
certified mail, postage prepaid, return receipt requested. Notices and other
communications shall be deemed to have been given on the date of actual receipt.
If a notice is sent by facsimile, a copy of the notice shall be sent by one of
the other methods specified above. Notices shall be addressed as follows:
(a) To Seller and Xxxxxxx:
---------------------
c/o Xxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
with a copy to:
--------------
Xxxxxxx X. Xxxxx, Esq.
Bose XxXxxxxx & Xxxxx LLP
0000 Xxxxx Xxxxxxx Xxxxx
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
(b) To Xxxxxxx:
----------
000 Xxxxxx Xxxx
Xxxxxx, XX 00000
(c) To Xxxxxx:
----------
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
(d) To Purchaser:
-------------
PDH, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxx
with a copy to:
--------------
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxx & Vornehm, LLP
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
or to such other person and/or address as shall be specified by either party in
a notice given to the other pursuant to the provisions of this paragraph.
10.4 Entire Agreement. This Agreement and the schedules and exhibits
referred to herein are complete and reflect the entire agreement of the parties
with respect to their subject matter and supersede all previous written or oral
negotiations, commitments and writings. No promises, representations,
understandings, warranties and agreements have been made by either of the
parties except as referred to in this Agreement or in such schedules or exhibits
or Related Agreements, and all inducements to the making of this Agreement
relied upon by either party hereto have been expressed therein or herein or in
such schedules or exhibits or Related Agreements.
10.5 Assignabilitv; Binding Effect. This Agreement shall be assignable
by Purchaser to a creditworthy corporation, partnership or entity, within its
control group provided that such assignment shall not release Purchaser of its
obligations hereunder prior to the assignment. This Agreement shall be binding
upon and enforceable by, and shall inure to the benefit of, the parties hereto
and their respective successors and permitted assigns. The rights, but not the
obligations of Seller, may be assigned by Seller to any person or entity upon
written notice to Purchaser.
10.6 Captions and Gender. The captions in this Agreement are for
convenience only and shall not affect the construction on or interpretation of
any term or provision hereof. The use in this Agreement of the masculine pronoun
in reference to a party hereto shall be deemed to include the feminine or neuter
pronoun, as the context may require.
10.7 Execution in Counterparts. For the convenience of the parties and
to facilitate execution, this Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
10.8 Amendments. This Agreement may not be amended or modified, nor may
compliance with any condition or covenant set forth herein be waived, except by
a writing duly
and validly executed by each party hereto, or in the case of a waiver, the party
waiving compliance.
10.9 Publicity and Disclosures. Except as may be required by law,
regulations or other applicable rules, no press releases or public disclosure,
either written or oral, of the transactions contemplated by this Agreement shall
be made by a party to this Agreement without the written consent of Purchaser
and Seller. Notwithstanding the foregoing, no press release or other public
disclosure, advertisement, or promotional materials relating to the transactions
described herein, or relating to the Purchaser and its affiliates or the
business, shall refer in any way to Xxxxxxx without his prior written consent
except as required by law.
10.10 Severability. In the event that any provision or any portion of
any provision of this Agreement shall be held to be void or unenforceable, then
the remaining provisions of this Agreement (and the remaining portion of any
provision held to be void or unenforceable in part only) shall continue in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date set forth above.
DICKSONHUGHES GROUP, LLC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Manager
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, as to the applicable
provisions of Sections 6 and 9.4.
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx, as to the applicable
provisions of Sections 6 and 9.4.
/s/ S. Xxxxx Xxxxxxx
----------------------------------------
S. Xxxxx Xxxxxxx, as to the applicable
provisions of Sections 6 and 9.4.
PDH, INC.
By: /s/ Carter Fortune
-----------------------------------
Carter Fortune, President
