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EXHIBIT 10.1.1
ASSET PURCHASE AGREEMENT
BY AND AMONG
CAROLINA TERMITE & PEST CONTROL, INC.
E. XXXXX XXXX, III
DRAKE XXXX XXXXXX
XXXXX XXXXXXXXX XXXX
XXXXX CURRENT XXXX
AND
XXXXXXX PEST CONTROL CORP.
EFFECTIVE
SEPTEMBER 1, 1997
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ASSET PURCHASE AGREEMENT
AGREEMENT made and entered into as of the 1st day of September, 1997, by
and among Carolina Termite and Pest Control, a North Carolina Corporation (the
"Seller"), E. Xxxxx Xxxx, III and Drake Dodd XxXxxx, Xxxxx Current Xxxx, and
Xxxxx Xxxxxxxxx Xxxx (individually a "Stockholder" and collectively the
"Stockholders"), Xxxxxxx Pest Control Corp., a North Carolina corporation
("Xxxxxxx").
WITNESSETH
WHEREAS, Seller is engaged in the termite and pest control business (the
"Business"),
WHEREAS, the Stockholders own 100% of the capital stock of the Seller;
WHEREAS, Xxxxxxx desires to purchase from Seller, and Seller desires to
sell to Xxxxxxx, substantially all of the assets of the Business;
WHEREAS, the Stockholders desire to induce Xxxxxxx to enter into and
perform this Agreement;
NOW, THEREFORE, it is agreed as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement the following terms shall have
the following meanings:
(a) "Acquired Assets" means the Fixed Assets, the Customer Contracts
and Product Inventory and Customer Lists.
(b) "Assumed Liabilities" means only such liabilities as are shown on
Schedule 1.1(b).
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(c) "Closing" shall mean the consummation of the transactions
contemplated by this Agreement on the Closing Date.
(d) "Closing Date" shall mean September 1, 1997, or such other date
as may be agreed upon in writing by the parties.
(e) "Customer Contracts" shall mean contracts (whether written or
oral) entered into by Seller to provide termite and pest control services as
part of the Business.
(f) "Excluded Assets" means the assets shown on Schedule 1.1(f).
(g) "Excluded Liabilities" means all liabilities which are not
Assumed Liabilities.
(h) "Fixed Assets" means the tangible fixed assets owned by Sellers
used by Sellers in connection with the operation of the Business, including,
without limitation, motor vehicles; and generally by type, computer equipment,
routeman's equipment, warehouse equipment, office furniture, office fixtures,
communications equipment and software, shop equipment and fleet equipment
(excluding Product Inventory), used by the Sellers in connection with the
operation of the Business.
(i) "Other Contracts and Leases" shall mean contracts and leases
(whether written or oral) other than Customer Contracts or real property leases.
(j) "Product Inventory" means all inventories of Seller's
insecticides, pesticides, termiticides, repellents and other chemicals used in
the Business.
(k) "Schedules" shall mean the documents delivered with this
Agreement and specifically marked as Schedules. The Schedules are an integral
part of this Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER AND STOCKHOLDERS
The Seller and the Stockholders, jointly and severally, represent and
warrant to Xxxxxxx that:
2.1 CORPORATE ORGANIZATION AND CAPITALIZATION. The Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of North Carolina, is duly qualified to do business and is in good
standing as a foreign corporation in each State where the nature of its
respective business or activities requires it to be so qualified, has the
corporate power and authority to own and operate its properties and to carry on
its business as currently conducted, to enter into this Agreement and to carry
out the transactions contemplated hereby, has all necessary licenses, permits,
consents or approvals from or by, and has made all necessary filings with, all
governmental instrumentalities or authorities having jurisdiction to the extent
requisite for ownership, operation and conduct of its business.
2.2 AUTHORITY. The execution and delivery of this Agreement by the Seller
and the due consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action on the part of the
Seller and this Agreement constitutes a valid and legally binding Agreement of
the Seller and neither the execution and delivery of this Agreement nor the
consummation by the Seller of the transactions contemplated hereby will (i)
constitute a violation of any provision of law or of the Seller's Articles of
Incorporation or Bylaws, (ii) result in the breach of, or the imposition of any
lien on, or constitute a default under, any indenture or bank loan or credit
agreement, license, permit, trust, pledge, agreement, custodianship or other
restriction or (iii) is prevented or otherwise limited by
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any judgment, order, writ, injunction or decree of, or is prevented or otherwise
limited by any proceeding before, any court, governmental body, administrative
agency or arbitrator to which the Seller is a party or by which it or its
properties may be bound or affected. Except for consents, approvals,
authorizations and actions which are disclosed in Schedule 2.2, no consent,
approval, authorization or other action of, or designation, declaration, filing,
registration or qualification with, any governmental authority or any person
having legal rights against or jurisdiction over the Seller, or the Seller's
assets is required for: (a) the execution, delivery or performance by the Seller
of this Agreement; (b) the assignment, conveyance or other transfer to Xxxxxxx
in accordance with this Agreement of all of the Acquired Assets of Seller,
without the acceleration of, or creation of the right to accelerate, any
maturity date of any debt, liability or other obligation, or any increase in the
interest rate of any instrument evidencing such debt, liability or other
obligation, or any cancellation or other diminution in value of any right, title
or interest thereto; or (c) the consummation by Seller and/or the Stockholders
of any other transaction contemplated hereby.
2.3 FINANCIAL STATEMENTS. Seller and/or the Stockholders have furnished
Xxxxxxx with the balance sheet of Seller and related statement of income and by
Seller retained earnings and statement of cash flows for the period ending July
31, 1997 prepared by Seller. Seller and/or the Stockholders have also furnished
Xxxxxxx with the balance sheets of Seller as at December 31, 1996 and December
31, 1995 and related statements of income and retained earnings and statement of
cash flows for the years ended on such dates, respectively, internally generated
by Seller (the "Financial Statements"). The Financial Statements are complete
and correct. All such Financial Statements fairly present the financial position
of the respective corporations as at the
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respective dates thereof, and the statements of income and statement of cash
flows for said periods, fairly present the results of the operations of the
respective corporations for the periods indicated, in each case in accordance
with generally accepted accounting principles, consistently applied. The
Financial Statements make full and adequate provision for all obligations and
liabilities (fixed and contingent) of the Seller which have accrued or are
properly accruable in accordance with generally accepted accounting principles
as of their respective dates.
2.4 UNDISCLOSED LIABILITIES. Seller has no material liabilities of any
nature, whether absolute, accrued or contingent and whether due or to become
due, which were not reflected on the Financial Statements or which are not
listed in Schedule 2.4. There has been no material adverse change in the
business, condition or operations (financial or otherwise) of Seller or any of
them since July 31, 1997.
2.5 TITLE TO ASSETS. Seller has good, valid and marketable title to all
its assets (real and personal, tangible and intangible), subject to no liens,
encumbrances or other restrictions.
2.6 OWNED REAL ESTATE. Stockholders own real property which is used in
the conduct of the Business through a North Carolina partnership. The
Stockholders lease the real estate to Seller.
2.7 REAL ESTATE LEASE. The Seller has a valid and enforceable real
property lease (the "Realty") used in the conduct of the Business which is not
in default with respect to the premises purported to be leased by it (and there
are no events which have occurred which can or may constitute such a default
under such leases), has performed all obligations required to be performed by it
under such lease, has not performed any act prohibited under such leases and
possesses and quietly enjoys the Realty under such lease. The Realty is not
subject to any
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restrictions, exceptions, reservations or limitations which might
affect its use or value to Xxxxxxx, except as set forth in Schedule 2.7. The
buildings, fixtures or improvements on the Realty and the operations therein
conducted conform to any and all laws, including, without limitation, applicable
health, fire, environment, safety, zoning and building laws. The buildings,
structures and fixtures used by Seller in the conduct of its business are in
good operating condition and repair and have been maintained and repaired on a
regular basis and are adequate for the conduct of the Business. Except as set
forth on Schedule 2.7, no mortgage, deed of trust, financing statement or
continuation statement with respect to the Realty has been recorded in any state
or other jurisdiction and Seller has not signed any such statement or agreement
authorizing or permitting any such encumbrance whether recorded or not.
2.8 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 2.8. attached
hereto, Seller and Stockholders have no knowledge that the Realty contains any
hazardous waste, hazardous substances, hazardous materials, toxic substances,
hazardous air pollutants, or toxic pollutants, as those terms are used in the
Resource Conservation Recovery Act (42 USC ss. 1251 (et. seq.), or in any
amendments thereto, or in any regulation promulgated pursuant thereto, or in any
applicable state or local law, regulation or ordinance. Except as set forth on
Schedule 2.8, Seller and Stockholders have no knowledge that any part of the
Realty currently or potentially subject to any federal, state or local
compliance or enforcement action, cleanup action, or other action because of the
presence of stored, leaked, spilled or disposed products, waste materials or
debris, "PCB's" or "PCB items" (as defined in 40 CFR ss. 761.3), underground
storage tanks, "asbestos" (as defined in 40 CFR ss. 763.63), or the past or
present accumulation, treatment, storage, disposal, spillage or leakage of any
dangerous, hazardous or toxic substance as defined
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in or regulated by any federal, state or local laws, regulations or orders.
Except as set forth on Schedule 2.8, no portion of the Realty has been filled
with rock, soil, gravel, debris, garbage, stumps or other fill materials which
to the best knowledge of the Seller and Stockholders presents an actual or
potential threat to public health or the environment or which may require
environmental investigation, cleanup or remediation, and no condition currently
exists which is or may be characterized by any federal, state or local
government or agency as an actual or potential threat or danger to public health
or the environment.
2.9 PERSONAL PROPERTY LEASES. Schedule 2.9 contains a list and brief
description of the terms of each personal property lease used by Seller in the
conduct of the Business. All such leases are in full force and effect.
2.10 EMPLOYEE COMPENSATION. Seller has delivered to Purchaser herewith
Schedule 2.10 containing the names and current annual salary rates of all
present officers and employees of Seller who received during the calendar year
1996, or will receive during the calendar year 1997, $30,000 or more in the
aggregate compensation, whether in salary, bonus or otherwise.
2.11 EMPLOYEE BENEFIT PLANS. Schedule 2.11 contains a list of all bonus,
incentive compensation, retirement, pension, group insurance, death benefit or
other benefit plans, trust agreements or arrangements affecting employees of
Seller.
2.12 INSURANCE POLICIES. Schedule 2.12 contains a list of all insurance
policies used in the Seller's Business. All insurance policies set forth in
Schedule 2.12 are in full force and effect; sufficient for compliance by Seller
with all requirements of law and all agreements to which they are a party; are
valid, outstanding and enforceable policies; in the judgment of the management
of Seller, which to the best knowledge of Seller and Stockholders insure against
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risks customarily insured against in amounts customarily carried by business
enterprises of similar size engaged in the Business of similar size and provide
adequate insurance coverage for the assets and operations of the Business (and
will remain in full force and effect through the Closing Date); and, will not in
any way be affected by, or terminate or lapse by reason of, the transactions
contemplated by this Agreement.
2.13 LABOR RELATIONS. Schedule 2.13 contains a list of all collective
bargaining agreements with all labor unions or other representatives of
employees which are binding upon Seller and a description of any attempts to
organize a collective bargaining unit.
2.14 LITIGATION. Except as set forth in Schedule 2.14 there is no known
action, suit, proceeding or known investigation pending or, threatened against
or affecting Seller, or the Stockholders in any court or by or before any
arbitrator or governmental agency or authority which might result, either
individually or in the aggregate, in any adverse change in the condition,
financial or otherwise, results of operations, business, assets, profit or
prospects of Seller or Stockholders, or the ability of Seller or Stockholders to
perform their obligations hereunder. There is no known action, suit, proceeding
or investigation pending or, threatened against or affecting Seller or the
Stockholders in any court or by or before any arbitrator or governmental
instrumentality or authority which questions the validity of this Agreement, any
of the transactions contemplated hereby, or any action taken or to be taken in
connection with this Agreement.
2.15 CUSTOMER CONTRACTS. Schedule 2.15 contains an accurate and complete
list of all of the Customer Contracts which Seller has or will transfer to
Xxxxxxx and to which Xxxxxxx will be a party. The Customer Contracts are valid
and in full force and effect, and Seller has not
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breached any provision of, and is not in default in any respect under, the terms
of any such contract. Seller has the right to transfer the Customer Contracts
without obtaining customer consents.
2.16 OTHER CONTRACTS. Schedule 2.16 contains an accurate and complete list
of Other Contracts and Leases used by Seller in the Business to be transferred
to Xxxxxxx. Except as shown on Schedule 2.16, no consents from third parties are
necessary to transfer any of the Other Contracts and Leases.
2.17 INTELLECTUAL PROPERTY. Seller owns or holds common law rights to use
all trademarks, service marks, and trade names used in or necessary for the
ordinary conduct of the Business of Seller as heretofore conducted, as set forth
in Schedule 2.17, and the consummation of the transactions contemplated hereby
will not alter or impair Xxxxxxx'x exercise of any such rights after the
Closing. No claims have been asserted and no claims are pending, by any person
to the use of any such trademarks, service marks, or trade names, or challenging
or questioning the validity or effectiveness of them, and Seller and
Stockholders are not aware of any basis for such a claim.
2.18 ABSENCE OF CHANGES. Except for changes required by the transactions
contemplated herein, there has not been with respect to Seller either
individually or in the aggregate, nor will there be through the Closing Date:
(i) any material adverse change in its condition, financial
or otherwise, results of operations, business, assets or profits
which, individually or in the aggregate, have been or will be
materially adverse to such conditions, financial or otherwise, results
of operations, business, assets or profits nor has there been any
change in such conditions, results of operations, the Business, assets
or profits occurring otherwise than in the ordinary course of
business;
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(ii) any damage, destruction or loss (whether or not covered
by insurance) materially and adversely affecting the Business or
assets of Seller,
(iii) any labor trouble materially and adversely affecting
its Business or assets;
(iv) any mortgage, pledge, lien or other encumbrances or
security interest (other than liens for current taxes not yet due)
created on any of the assets of Seller;
(v) any sale, transfer or other disposition of any of
Seller's assets except in the ordinary course of business;
(vi) any amendment, termination, cancellation or waiver of
any right of substantial value belonging to Seller except in the
ordinary course of business;
(vii) any increase in the compensation payable or to become
payable by Seller to any of its officers or employees listed in
Schedule 2.8 or any general uniform increase for other employees,
other than normal merit and cost-of-living increases required by union
contracts or by Seller's general prevailing practices, (with any
increases to be agreed to by Xxxxxxx);
(viii) any write-down of the value of any inventory;
(ix) any disposition or diminution of, or lapse of any
rights to the use of any Intellectual Property of Seller or the
disposition of, or disclosure to, any person of any trade secret
related to the business of Seller and not previously a matter of
public knowledge;
(x) any capital expenditures or commitment for additions to
properties, plant or equipment, except in the ordinary course of '
business or as disclosed in Schedule 2.25;
(xi) any material change in the method of accounting or
accounting practices of Seller;
(xii) any incurrence of any liability or obligation of any
nature (whether absolute, accrued, contingent or otherwise)
affecting Seller except in the ordinary course of business, or any
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increase in, or experiencing of any significant change in the
assumption underlying or methods of calculating any bad debt,
contingency or other reserves;
(xiii) any agreements or arrangements with, or assets of the
Business of Seller sold to, any of the officers or directors of
Seller or the Stockholders or any of their "affiliates" or
"associates" (as such terms are defined in the rules and regulations
of the Securities and Exchange Commission under the Securities Act
of 1933, as amended), except for purchases and sales in the ordinary
course of business effected at competitive prices or except as
disclosed on Schedule 2.18; or
(xiv) any declaration or set aside or payment or redemption
or other distribution in respect of, the capital stock of Seller;
and there has been no agreement on the part of the Seller or the Stockholders,
whether in writing or not, to do any of the foregoing.
2.19 BROKER, AGENT, FINDER. Neither Seller nor the Stockholders has
employed any broker, agent or finder or incurred any liability for any
brokerage fee, agents' commissions or finders' fees in connection with the
transactions contemplated herein.
2.20 CONDITION OF ASSETS. Except as shown on Schedule 2.20, all of the
structures, equipment, furniture and fixtures of the Business and the Fixed
Assets of Seller are in good operating condition and repair for the conduct of
the Business as presently conducted.
2.21 PRODUCT INVENTORIES. Except as shown on Schedule 2.21, the
inventories of the products of Seller transferred to Xxxxxxx and shown on the
Financial Statements and the inventories accumulated by Seller subsequent to
July 31, 1997 include no items which are obsolete, beyond normal shelf life,
or below standard quality or of any quality or quantity not usable or saleable
in the ordinary course of business of Seller.
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2.22 FIXED ASSETS. Schedule 2.22 contains a full and complete list of the
Fixed Assets used by Seller in the Business to be transferred to Xxxxxxx, and
Seller has full right and title to transfer the Fixed Assets to Xxxxxxx.
2.23 NO DEMAND INDEBTEDNESS. Seller and/or the Stockholders are not a
party to any indenture or bank loan or credit agreement or any other agreement
or instrument under which the Seller is or will be required to place (or under
which a third party may place) a lien upon any of the Acquired Assets securing
indebtedness, either upon demand of the holder of such indebtedness or upon
the happening of a condition, with or without such demand.
2.24 NO DEFAULTS. No event or condition has occurred and is continuing
which would constitute an event of default or with the giving of notice or
lapse of time or both would constitute an event of default or with the giving
of notice or lapse of time or both would constitute an event of default under
any agreement, indenture, bank loan, credit agreement or lease under which the
property or assets of the Seller are bound.
2.25 CAPITAL COMMITMENTS. Schedule 2.25 contains a list of all capital
commitments or capital expenditures ("Cap. Ex.") made by Seller during
calendar year 1996. All Cap. Ex. commitments have been paid or adequately
reserved on the Seller's balance sheet. There are no Cap. Ex. commitments made
during 1997 by Seller which are to be assumed by Xxxxxxx as part of the
transactions contemplated hereby.
2.26 LETTERS OF CREDIT AND BONDS. Schedule 2.26 sets forth all letters of
credit and bonds together with face amounts and a description as to their
character (i.e. standby, irrevocable, etc.) which are obligations of the
Seller or the Stockholders and which have been incurred in connection with the
Business.
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2.27 TAX MATTERS. Seller has furnished to Purchaser true and complete
copies of all federal and state income tax returns and all property tax
returns, reports and schedules filed on behalf of or with respect to Seller
for all tax periods during the current calendar year and each of its last
three calendar years. All federal, state and local tax returns and tax reports
required to be filed by Seller, have been timely filed with the appropriate
governmental agencies in all jurisdictions in which such returns and reports
are required to be filed. All federal, state and local income, profits,
franchise, sales, use, occupation, property, excise and other taxes (including
interest and penalties) due from either Seller (a) have been fully paid or
adequately provided for on the books and financial statements of Seller, or
(b) are being contested in good faith by appropriate proceedings. No issues
have been raised (or might reasonably be expected to be raised) by the
Internal Revenue Service or any other taxing authority in connection with any
of the returns and reports referred to in the foregoing clause (i) which,
individually or in the aggregate, might have a material adverse effect on the
Business; and (iv) no waivers of statutes of limitation have been given or
requested with respect to the affiliated group, except as noted in Schedule
2.27.
2.28 REVENUE RUN-RATE. Revenues of the Business for calendar year 1997
are running at an annualized rate of not less than Eight Hundred Sixty-Three
Thousand Dollars ($863,000).
2.29 DISCLOSURES. Neither the Financial Statements referred to in Section
2.3, nor this Agreement, nor any certificate or Schedule furnished by or on
behalf of Seller or the Stockholders pursuant to this Agreement, contains any
untrue statement of material fact or, when this Agreement and such Schedules
and certificates are taken in their entirety, contains any
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untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained therein not misleading as of the
date hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF XXXXXXX
Xxxxxxx represents and warrants to Seller and the Stockholders that:
3.1 ORGANIZATION. Xxxxxxx is a corporation duly incorporated and validly
existing under the laws of the State of North Carolina, is duly qualified to
do business, and is in good standing as a foreign corporation in each State
where the nature of its business or activities require it to be so qualified,
has the corporate power and authority to own and operate its properties and to
carry on its business as currently conducted, to enter into this Agreement and
to carry out the transactions contemplated hereby.
3.2 AUTHORITY. The execution and delivery of this Agreement by Xxxxxxx
and the due consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of
Xxxxxxx; this Agreement constitutes a valid and binding Agreement of Xxxxxxx;
neither the execution and delivery of this Agreement nor the consummation by
Xxxxxxx of the transactions contemplated hereby will constitute a violation of
any provision of law or of the Articles of Incorporation or Bylaws of Xxxxxxx,
result in the breach of, or the imposition of any lien on, or constitute a
default under, any indenture or bank loan or credit agreement, license,
permit, trust, custodianship or other restriction, which violation, breach,
imposition of lien or default would affect the validity of the sale of the
capital stock to Xxxxxxx.
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3.3 LITIGATION. There is no known action, suit, proceeding, or
investigation pending or threatened against Xxxxxxx which challenges or
questions the legality or validity of this Agreement or any of the
transactions contemplated hereby.
3.4 BROKERS, AGENTS, FINDERS. Neither Xxxxxxx nor any of its officers,
directors or employees have employed any broker, agent or finder, or incurred
any liability for any brokerage fee, agents' commissions or finders' fees in
connection with the transactions contemplated herein.
ARTICLE IV
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; LIABILITY
4.1 SURVIVAL. The representations, warranties, undertakings and
agreements of Seller, Stockholders and Xxxxxxx contained herein, or in the
certificates or other instruments delivered by or on behalf of such party
pursuant to this Agreement, shall survive the Closing Date and any
investigation made by or on behalf of the other party.
ARTICLE V
PURCHASE AND SALE, PURCHASE PRICE
5.1 PURCHASE PRICE. At the Closing, Sellers will sell and Xxxxxxx will
purchase all of the Acquired Assets of Seller. The purchase price for the
Acquired Assets shall be Five Hundred Eighty Eight Thousand Four Hundred
Eighty Eight and 67/100 Dollars ($588,488.67) (the "Purchase Price").
At the Closing, Xxxxxxx shall pay to the Seller the Purchase Price in the
form of an Installment Promissory Note with a face amount of Five Hundred
Eighty Eight Thousand Four Hundred Eighty Eight and 67/100 Dollars
($588,488.67) amortized over sixty (60) months from
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the Closing Date, which shall bear interest at a per annum rate of ten percent
(10%) (the "Note"), a copy of which is attached hereto and made a part hereof
as Exhibit X.
Xxxxxxx shall have a right of set-off against amounts owed under the Note
for any amounts owed by Seller and/or Stockholders due to the breach of any
representation, warranty or covenant contained in this Agreement. Xxxxxxx
International, Inc. shall unconditionally guaranty the payment of the Note
upon its terms.
5.2 TRANSFER OF ACQUIRED ASSETS. In exchange for the payment by Xxxxxxx
of the Purchase Price, Seller and/or Stockholders shall convey all of the
Acquired Assets of Seller to Xxxxxxx on the Closing Date and Xxxxxxx shall
assume the Assumed Liabilities shown on Schedule 1.1(b).
5.3 INVENTORY. The purchase price includes the value of the Fixed Assets
and the Product Inventory. However, the purchase price shall be adjusted to
reflect the current value of the Product Inventory on the Closing Date
established by an inventory to be completed by representatives of each company
on the day before the Closing Date. Xxxxxxx shall have no obligation to pay
for Fixed Assets which are obsolete or unusable, nor for Product Inventory if
it is past its normal shelf life, or is prohibited by law to be used in the
Business.
5.4 LEASE. The Stockholders through their Realty partnership shall lease
the Realty to Xxxxxxx upon the terms and conditions of the Lease attached
hereto and made a part hereof as Exhibit B.
5.5 PRORATIONS. Unless otherwise provided, all taxes, water and sewer
charges, rent, employees bonuses, salaries and commission shall be prorated
between Xxxxxxx and the Seller as of the Closing Date. Schedule 5.5 is a list
of prepaid Customer Contracts. Xxxxxxx has received
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a reduction in the purchase price and in consideration therefor will assume
the obligations under those Contracts.
ARTICLE VI
ACCESS TO RECORDS AND PROPERTIES
6.1 Xxxxxxx may, prior to the Closing Date, through its employees, agents
and representatives, make or cause to be made such investigation of the
business of Seller as it deems necessary or advisable, but such investigation
shall not affect the Seller's or the Stockholders' representations and
warranties hereunder nor prejudice Xxxxxxx'x night to terminate this Agreement
as provided in Article XII. Seller and the Stockholders agree to permit
Xxxxxxx and its employees, agents and representatives to have, after the date
of execution hereof, fall access to its premises on reasonable notice and to
Seller's books and records and Seller will make available such financial and
operating data and other information with respect to its business and
properties as Xxxxxxx shall from time to time reasonably request. In the event
of termination of this Agreement, Xxxxxxx will return all originals and copies
of documents, work papers and other material obtained hereunder, whether
obtained before or after the execution hereof, and Purchaser agrees that it
will not disclose or divulge any such information to any other person, and
will keep any information so obtained confidential; provided, however, that
Xxxxxxx shall not be obligated to treat as confidential any information which
was known to it at the time of disclosure or which becomes publicly known or
available thereafter or its rightfully receive by it from a third party, or
required to be disclosed by order of any duly constituted governmental
authority.
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ARTICLE VII
CONDUCT OF SELLER AND STOCKHOLDERS PENDING THE CLOSING
Seller and the Stockholders agree that from the date of this Agreement to
the Closing Date, that they will operate the Business as presently operated
and only in the ordinary- course of business and to the extent of, and
consistent with, such operation, they will preserve intact the present
business organization of the Seller and preserve the relationships of Seller
with persons having business dealings with it. Specifically, Seller and the
Stockholders agree that:
7.1 MAINTAIN ASSETS. They will maintain all of the properties of Seller
in customary repair, order and condition, reasonable wear and use and damage
by fire or unavoidable casualty excepted, and take all steps reasonably
necessary to maintain the intangible assets of Seller.
7.2 SALARY INCREASES. They will not (i) grant any salary increase in
excess of four percent (4%) to any officer or employee of Seller who would
receive, after giving effect to such increase, aggregate compensation at an
annual rate exceeding $30,000, or (11) enter into or amend or alter materially
any bonus, incentive compensation, deferred compensation, retirement, pension,
group insurance, death benefit or other fringe benefit plan, trust agreement
or arrangement affecting employees of Seller.
7.3 TAX PAYMENTS. Except for taxes contested in good faith, they will
pay all ad valorem and other taxes upon the properties and business of Seller
as they become due.
7.4 NO ASSET SALES; ENCUMBRANCES. They will refrain from disposing of
or encumbering any of the properties of Seller to be transferred to Xxxxxxx on
the Closing Date.
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7.5 INDEBTEDNESS. They will not enter into or assume any contract,
agreement, obligation, lease, debt instrument, license or commitment, except
in the ordinary course of business or as contemplated by this Agreement.
7.6 BREACH OF CONTRACT. They will not do any act, or omit to do any
act, which will cause a material breach of any contract, commitment or
obligation of Seller.
7.7 COMPLIANCE WITH LAWS. They will duly comply with all laws
applicable to Seller or to the Business.
7.8 WAIVERS. They will not amend, terminate, cancel or waive any right
of substantial value relating to the business of Seller.
7.9 INTELLECTUAL PROPERTY. They will not dispose of, diminish or permit
to lapse any rights to the use of any Intellectual Property material to
Seller, or dispose of or disclose to any person any trade secret, formula,
process or know-how of Seller not previously a matter of public knowledge.
7.10 CAPITAL COMMITMENTS. They will not commit to, or make, any Cap.
Ex. for additions to property or equipment of Seller, except in the ordinary
course of business and in any event in excess of $1,000, except as approved
in writing by Purchaser.
7.11 MATERIALS PURCHASES. They will not incur any obligation for the
purchase or payment of materials in excess of $5,000, except for the purchase
or payment for inventory, material and supplies required in the ordinary
course of Seller's Business, in amounts and quantities consistent with past
purchasing policies for such materials and supplies at current levels of
business and operation.
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21
7.12 CORPORATE GOVERNANCE. They will not amend the Articles of
Incorporation or Bylaws of Seller.
7.13 MERGERS. They will not merge, agree to merge with, acquire, agree
to acquire, or agree to be acquired by or combine with any other business
entity.
7.14 AFFILIATE ARRANGEMENTS. They will not sell any assets of Seller
to, or enter into any agreement or arrangement relating to the Seller with,
any of the officers or directors of Seller or any of their "affiliates" or
"associates" (as such terms are defined in the rules and regulations of the
Securities and Exchange Commission under the Securities Act of 1933, as
amended).
7.15 REDEMPTIONS, DIVIDENDS. They will not permit Seller to redeem
any, or declare or set aside or pay any, dividend (whether in cash or
property) or other distribution in respect of the capital stock of Seller.
ARTICLE VIII
CONDITIONS TO XXXXXXX'X OBLIGATIONS
The obligation of Xxxxxxx to perform this Agreement is subject to the
satisfaction in all material respects on or before the Closing Date of the
following conditions, unless waived by Xxxxxxx in writing:
8.1 INACCURACY OF SELLER/STOCKHOLDERS REPRESENTATIONS AND WARRANTIES.
Examination by Xxxxxxx shall not have disclosed any material inaccuracy in the
representations and warranties of Seller or the Stockholders set forth in
Article II. Such representations and warranties shall be true and correct in
all material respects on and as of the Closing Date, as though made on and as
of the Closing Date, and Swisher shall have received certificates signed by
the President or Vice President of Seller and by the Stockholders to that
effect.
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8.2 SELLER/STOCKHOLDERS PERFORMANCE OF OBLIGATIONS. Seller and the
Stockholders shall have performed all obligations required to be performed by
them prior to the Closing Date under this Agreement.
8.3 APPROVAL OF DOCUMENTS. The form and substance of all documents
delivered hereunder by Seller and the Stockholders shall be acceptable to
counsel for Xxxxxxx, acceptance not to be unreasonably withheld.
8.4 BOARD APPROVAL. All of the transactions contemplated under this
Agreement must be approved by Xxxxxxx'x Board of Directors.
ARTICLE IX
CONDITIONS OF SELLER'S OBLIGATIONS
The obligations of Seller and the Stockholders to perform this Agreement
are subject to the satisfaction in all material respects on or before the
Closing Date of the following conditions, unless waived by Seller or the
Stockholders in writing:
9.1 INACCURACY OF XXXXXXX REPRESENTATIONS AND WARRANTIES. Examination
by Seller and the Stockholders shall not have disclosed any material
inaccuracy in the representations and warranties of Xxxxxxx set forth in
Article III. Such representations and warranties shall be true and correct in
all material respects on and as of the Closing Date as though made on and as
of the Closing Date and Seller shall have received a certificate or
certificates signed by the President or a Vice President of Xxxxxxx to that
effect.
9.2 XXXXXXX PERFORMANCE OF OBLIGATIONS. Xxxxxxx shall have performed
all obligations required to be performed by it prior to the Closing Date under
this Agreement.
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23
9.3 APPROVAL OF DOCUMENTS. The form and substance of all documents
delivered hereunder by Xxxxxxx shall be acceptable to counsel for Seller and
Stockholders acceptance not to be unreasonably withheld.
9.4 RESOLUTIONS. The delivery by Xxxxxxx of the Board of Directors of
Xxxxxxx International approving the guaranty of all payments under the Note.
ARTICLE X
RISK OF LOSS
10.1 DAMAGE OR DESTRUCTION. If, prior to the Closing Date, the Acquired
Assets to be transferred from Seller to Xxxxxxx are damaged or destroyed to
the extent that the cost of reconstruction or repair would exceed Fifty
Thousand Dollars ($50,000), or damage to the Realty so that the conduct of the
Business would be materially impaired, Xxxxxxx, at its election, may terminate
this Agreement and, upon such termination, neither party shall have any
obligation hereunder to the other. If Xxxxxxx does not exercise such election
to terminate, or if the damage or destruction is less extensive than referred
to in the preceding sentence, Seller shall, at the Closing Date or as soon
thereafter as received, pay over to Xxxxxxx the insurance proceeds recovered
on account of such damage or destruction.
ARTICLE XI
THE CLOSING
11.1 TIME AND PLACE. The Closing of the transactions provided for in
this Agreement shall be held on the Closing Date at the offices of Xxxxxxx
International, Inc., 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx at 10:00
a.m. on September 3, 1997 or at such other time or place as the parties may
agree upon in writing.
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11.2 DELIVERIES BY SELLER/STOCKHOLDERS. At the Closing, Seller and/or
Stockholders shall deliver or cause to be delivered to Xxxxxxx:
(a) a Xxxx of Sale transferring all of the Acquired Assets to
Xxxxxxx;
(b) the Lease referred to in Section 5.5 of this Agreement;
(c) the Non-Compete Agreements required by Section 14.3;
(d) an assignment of all Customer Contracts;
(e) an assignment of all Other Contracts and Leases;
(f) any and all consents necessary to the transfer of the Acquired
Assets;
(g) evidence of the termination of the lease between Stockholders
partnership and the Seller;
(h) resolutions of Seller's Board of Directors approving the
transaction; and
(i) such other certificates and instruments and documents of
transfer executed by Seller and/or the Stockholders as Xxxxxxx may reasonably
request with respect to the consummation of the transactions contemplated
hereby.
Seller and the Stockholders shall take all other steps requisite to put
Xxxxxxx in actual possession and operating control of the Business on the
Closing Date.
11.3 DELIVERIES BY XXXXXXX. At the Closing, Xxxxxxx shall deliver to
Seller:
(a) the Note, as provided in Section 5.1(b);
(b) the Guaranty of the Note by Xxxxxxx International, Inc. as
required by Section 5.1(b) of this Agreement;
(c) the Employment Agreement as required pursuant to Article XIV;
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25
(d) Resolutions of the Board of Directors of Xxxxxxx International
required by Section 9.4;
(e) Non-Compete payment for Xxxxxx X. XxXxxx, Xx.; and
(f) such other certificates and instruments and documents of
transfer executed by Xxxxxxx as Seller and/or the Stockholders may reasonably
request with respect to the consummation of the transactions contemplated
hereby.
ARTICLE XII
TERMINATION, WAIVER AND AMENDMENT
12.1 TERMINATION BY LAPSE OF TIME. This Agreement may be terminated by
either party at any time after September 30, 1997 (or such later date as shall
have been specified in writing signed by the parties), if at the time of such
notice of such termination the Closing for any reason shall not have been
consummated.
12.2 TERMINATION BY XXXXXXX. This Agreement may be terminated by
Xxxxxxx if there has been a material misrepresentation or breach on the part
of Seller or the Stockholders in the representations and warranties of Seller
or the Stockholders set forth herein, or if there has been any failure in any
material respect on the part of Seller or the Stockholders to comply with
their obligations hereunder.
12.3 TERMINATION BY SELLER OR STOCKHOLDERS. This Agreement may be
terminated by Seller or the Stockholders if there has been a material
misrepresentation or breach on the part of Xxxxxxx in the representations and
warranties of Xxxxxxx set forth herein, or if there has been any failure in
any material respect on the part of Xxxxxxx to comply with their obligations
hereunder.
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26
12.4 WRITTEN NOTICE. The power of termination provided for herein may
be exercised only by written notice signed on behalf of the party for whom it
is given and in the case of a termination on behalf of a corporate party, such
written notice must be executed by a duly authorized officer.
12.5 WAIVERS. Any term or provision of this Agreement may be waived at
any time by the party which is entitled to the benefit thereof, but only by a
written instrument and in the case of a corporate waiver by a written
instrument, accompanied by a certified copy of the resolution of the board of
directors authorizing such waiver and executed by a duly authorized officer of
the party waiving compliance.
12.6 AMENDMENT. This Agreement may be amended or supplemented at any
time but only by a written instrument executed by a duly authorized officer of
each of the corporate parties and by the Stockholders.
ARTICLE XIII
FURTHER COVENANTS AND AGREEMENTS
13.1 USE OF INTELLECTUAL PROPERTY. At the Closing Seller and the
Stockholders shall convey all right title and interest they may have in the
names Carolina Termite & Pest Control or Carolina Pest Control. Seller and the
Stockholders agree that from and after the Closing Date they will not directly
or indirectly use any of the Intellectual Property, including, but not limited
to Carolina Termite & Pest Control or Carolina Pest Control either alone or in
conjunction with other words, letters or symbols or any know-how, drawings,
styles or other proprietary asset or right owned by the Seller, or use any
other identification which is confusingly similar or would tend to mislead the
public.
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27
13.2 CHANGE OF CORPORATE NAME. On or before the Closing Date the
Stockholders will cause Seller to change its corporate name to eliminate the
words Carolina Termite & Pest Control in accordance with Section 13.l. The new
corporate name to be used by Seller shall be subject to the approval of
Xxxxxxx; provided that Xxxxxxx shall xxxxx Seller a limited license for a
period of twelve (12) so that Seller may use it in collecting accounts
receivable and to satisfy its accounts payable.
13.3 ALLOCATIONS. Xxxxxxx, Seller and the Stockholders covenant and
agree that the allocation of the Purchase Price shall be treated consistently
by the parties for federal, state and local tax purposes.
13.4 ACCOUNTS RECEIVABLE. Accounts receivable payable to Seller prior
to the Closing Date shall be for the account of Seller. Seller shall be
responsible for the collection of such accounts receivable.
13.5 ACCOUNTS PAYABLE. Seller shall be responsible for the payment of
all accounts payable incurred prior to the Closing Date, including all
prepaids. Seller shall satisfy all accounts payable on or prior to the Closing
Date.
13.6 CASH. Seller's cash is not included within the Purchase Price and
Seller shall retain all cash on hand prior to the Closing Date; provided,
however, that Xxxxxxx shall be entitled to all cash received by Seller before
Closing if inspection of the work occurs on or after the Closing Date.
13.7 EMPLOYEE LOANS. Xxxxxxx shall assume all rights and obligations
related to loans made by Seller to employees prior to Closing Date.
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ARTICLE XIV
EMPLOYMENT ISSUES
14.1 EMPLOYMENT AGREEMENT. It is the intention of the parties to create
a nationwide chain of quality termite and pest control businesses in various
locations throughout the United States. The precise locations of these
businesses shall be determined at a later date. In this connection,
Stockholder E. Xxxxx Xxxx, III ("Xx. Xxxx") has been offered and has accepted
employment with Purchaser following consummation of the transactions
contemplated hereby. The Stockholder possesses certain knowledge, skills and
expertise in the operation of the Business which are critical to the success
of the venture. Xxxxxxx also possesses certain knowledge, skills and expertise
which are critical to the success of the venture, which knowledge, skills and
expertise will be imparted to the Stockholder during the course of his
employment with Xxxxxxx. Xxxxxxx has expended and expects to continue to
expend considerable sums of money in furtherance of the development and
implementation of a nationwide franchised chain of quality termite and pest
control businesses. Therefore, Xx. Xxxx, individually, and Xxxxxxx agree to
enter into an Employment Agreement with Purchaser at Closing in substantially
the form attached hereto and made a part hereof as Exhibit C which shall
contain a covenant not to compete payable in the amount Three Hundred Sixty
Seven Thousand Three Hundred Ninety Four and 00/100 Dollars ($367,394.00) as
follows: One Hundred Thousand and 00/100 Dollars ($100,000.00) at Closing and
commencing October 3, 1997 sixty (60) equal monthly installment payments of
Four Thousand Four Hundred Fifty Six and 57/100 Dollars ($4,456.57) until
fully paid.
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29
14.2 XXXXXX X. XXXXXX, XX. Xx. Xxxx will obtain a covenant not to
compete from Xxxxxx X. XxXxxx, Xx. satisfactory to Xxxxxxx in substantially
the form of Xx. Xxxx'x covenant not to compete in consideration of the payment
of Three Hundred Sixty Seven Thousand Three Hundred Ninety Four and 00/100
Dollars ($367,394.00) by Xxxxxxx upon the same payment schedule as Xx. Xxxx.
14.3 EMPLOYEE NON-COMPETES. Prior to Closing Seller shall obtain a
Non-Compete and Non-Solicitation Agreement (the "Non-Competes") from each of
its employees in the form attached hereto and made a part hereof as Exhibit D.
Seller shall assign the Non-Competes to Xxxxxxx on the Closing Date.
14.4 SEVERANCE ARRANGEMENTS. Any arrangements for severance pay made by
Seller shall be solely at the expense of Seller.
14.5 EMPLOYEE PAYROLL. Seller shall retain the liability for payment of
employee commissions and all other payroll accrued prior to September 1, 1997.
14.6 EMPLOYEE BENEFIT PLANS. Xxxxxxx shall not be obligated to assume
any of Seller's employee benefit plans.
ARTICLE XV
CLAIMS ARISING OUT OF THE OPERATION OF SELLER'S BUSINESS, INDEMNIFICATION
15.1 With respect to any claims or liabilities arising out of the
operation of Seller's business:
(a) Seller and the Stockholders shall remain liable for and shall
indemnify and hold Xxxxxxx and any guarantor harmless against all such claims,
demands, causes of action, suits, judgments, liabilities and expenses of any
and every kind (including attorney's fees),
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30
arising out of or based on the acts or omissions of Seller or the Stockholders
(or any predecessor corporation) in their conduct of the Business prior to the
Closing Date; provided, however, that Seller and Stockholders shall be liable
for warranty claims only for ninety (90) days after August 31, 1997 for
Customer Contracts that are in effect as of September 1, 1997. There shall be
no time limit on the obligation of Seller and Stockholders to indemnify
Xxxxxxx for warranty work for Customer Contracts that predate September 1,
1997 and not in effect on September 1, 1997. Xxxxxxx shall cooperate with
Seller and/or the Stockholders in the defense of such claims or suits and to
such end shall make available to counsel for Seller and/or the Stockholders or
their insurer such of Xxxxxxx'x books and records as in the judgment of said
counsel may be helpful in the defense.
(b) Xxxxxxx shall assume liability for and shall indemnify and hold
Seller and the Stockholders harmless against all such claims, demands, causes
of action, suits, judgments, liabilities and expenses of any and every kind
arising out of Xxxxxxx'x conduct of the Business on and after the Closing
Date. Seller and/or Stockholders shall cooperate with Xxxxxxx in the defense
of such claims or suits and to such end shall make available to counsel for
Xxxxxxx or their insurer such of Seller's books and records as in the judgment
of said counsel or insurer may be helpful in the defense.
15.2 NOTICE. Promptly after receipt by Xxxxxxx of any claim or notice
of the commencement of any action or administrative or legal proceedings or
investigation, Xxxxxxx shall, if a claim in respect thereof is or may be made
against Seller and/or the Stockholders under this Agreement, notify Seller
and/or the Stockholders in writing of such fact. Seller and/or the
Stockholders shall be entitled to participate in, and, to the extent that they
shall wish, to assume
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31
the defense thereof, with counsel designated by Seller and/or the Stockholders
and satisfactory to Xxxxxxx or Newco. After notice from Seller and/or the
Stockholders to Xxxxxxx of the election of Seller and/or the Stockholders so
to assume the defense thereof, Seller and/or the Stockholders shall not be
liable to Xxxxxxx under this Agreement or otherwise for any legal or other
expenses subsequently incurred by Xxxxxxx in connection with the defense
thereof other than Xxxxxxx'x reasonable costs of investigation. If Seller
and/or the Stockholders elect to assume the defense thereof, Xxxxxxx will make
available to Seller and/or the Stockholders and their counsel books and of
records, Xxxxxxx, as may be reasonably required for such defense.
(a) Should Xxxxxxx or any guarantor be entitled to indemnification
under this Agreement as a result of a claim by a third party, and Seller
and/or the Stockholders do not assume the defense of such claim, Xxxxxxx shall
at the expense of Seller and/or the Stockholders contest (or, with the prior
written consent of the Seller and/or the Stockholders, settle) such claim,
provided that no such contest need be made and settlement or full payment of
any such claim may be made without consent of Seller and/or the Stockholders
(with Seller and/or the Stockholders then being obligated to indemnify Xxxxxxx
under this Agreement), if, in the opinion of Xxxxxxx'x counsel, as the case
may be, such claim has colorable merit.
15.3 BULK SALES. Seller and Stockholders shall indemnify and hold
Xxxxxxx and any guarantor harmless against all claims, demands, causes of
action, suits, Judgments, liabilities and expenses of any and every kind
(including attorney's fees) arising out of or based upon a claim pursuant to
the Bulk Sales Law of the State of North Carolina.
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ARTICLE XVI
FURTHER ASSURANCES, PAROLE EVIDENCE, COUNTERPARTS, NOTICES, ETC.
16.1 FURTHER ASSURANCES. If, at any time after the Closing Date, any
party hereto shall consider or be advised that any further instruments or
assurances or any other things are necessary or desirable to carry out the
terms of this Agreement, the other party shall execute and deliver all such
instruments and assurances and do all things reasonably necessary and proper
to carry out the terms of this Agreement.
16.2 ENTIRE AGREEMENT. This Agreement and the documents delivered
pursuant hereto contain the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior negotiations. None of the
parties shall be bound by nor shall be deemed to have made any
representations, warranties or commitments except those contained herein or in
the documents delivered pursuant hereto.
16.3 MISCELLANEOUS. This Agreement:
(a) may be executed in any number of counterparts and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one Agreement;
(b) shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by either the Seller or the
Stockholders; and
(c) shall be governed by and construed in accordance with the laws
of the State of North Carolina.
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16.4 ALTERNATE DISPUTE RESOLUTION. Except insofar as Xxxxxxx elects at
any time to enforce this Agreement by any judicial process, injunction or
specific performance, any controversy, dispute, question or claim arising out
of this Agreement or its interpretation, performance, or nonperformance, or
any breach hereof, including, without limitation, any claim that this
Agreement or any part thereof is invalid, illegal or otherwise voidable or
void, shall be submitted first to nonbinding mediation, then to final and
binding arbitration process as it relates to each individual franchisee in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association or similar association, and judgment on the arbitration award may
be entered in the highest state, provincial, or federal court having
jurisdiction thereof, provided, however that this provision shall not be
construed to limit any rights which Xxxxxxx may have to apply to any court of
competent jurisdiction for injunctive or similar provisional relief. No
arbitration decision shall have a binding or collateral estoppel effect in any
other arbitration or judicial proceeding. The substantive law of the state of
North Carolina shall be applied by the arbitrators, and this requirement shall
be deemed jurisdictional. This mediation/arbitration provision shall be deemed
self-executing, and in the event that any party fails to appear at any
properly noticed arbitration proceeding, an award may be entered against such
party notwithstanding said failure to appear. The parties agree that such
mediation or arbitration shall be conducted in Charlotte, North Carolina and
shall remain confidential between the parties except as required by law.
16.5 HEADINGS. The headings used in this Agreement and in the Table of
Contents are for convenience only and shall not affect the construction of any
of the terms of this Agreement.
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16.6 NOTICES. All notices or other communications which are required or
permitted hereunder shall be sufficient if delivered personally or by
registered or certified mail, postage prepaid, as follows:
if to Seller or Stockholders:
X.X. Xxx 000
Xxxxxx, XX 00000
if to the Purchaser or Xxxxxxx:
Xxxxxxx International, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
16.7 COSTS AND EXPENSES. Each party to this Agreement shall pay its own
costs and expenses (including, without limitation, the fees and expenses of
its agents, representatives, counsel and accountants) necessary to its
performance of and compliance with this Agreement.
ATTEST CAROLINA TERMITE & PEST CONTROL, INC.
By:
------------------------------ ------------------------------------------
Secretary President
ATTEST XXXXXXX PEST CONTROL CORP.
By:
------------------------------ ------------------------------------------
Secretary President
WITNESS E. XXXXX XXXX, II
------------------------------ ---------------------------------------------
An Individual
WITNESS
------------------------------
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WITNESS DRAKE XXXX XXXXXX
------------------------------ ---------------------------------------------
An Individual
WITNESS
------------------------------
WITNESS E. XXXXX XXXX, III AS CUSTODIAN FOR XXXXX
XXXXXXXXX XXXX, A MINOR
------------------------------ ---------------------------------------------
An Individual
WITNESS
------------------------------
WITNESS XXXXX CURRENT XXXX
------------------------------ ---------------------------------------------
An Individual
WITNESS
------------------------------
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CLOSING STATEMENT
SELLER: Carolina Termite & Pest Control, et. al
PURCHASER: Xxxxxxx Pest Control Corp.
DATE: As of September 1, 1997
PURCHASE PRICE: Acquired Assets $ 588,488.67
COVENANTS NOT TO COMPETE:
E. Xxxxx Xxxx, III 367,394.00
Xxxxxx X. XxXxxx, Xx. 367,394.00
-------------
$1,323,274.67
LESS: CREDITS TO BUYER
Promissory Note
Covenants Not To Compete
E. Xxxxx Xxxx, III ($100,000.00 payable at Closing) 367,394.00
Xxxxxx X. XxXxxx, Xx. ($100,000.00 payable at Closing) 367,394.00
-------------
$1,323,274.67
NET TO PURCHASER/SELLER:
SELLER: PURCHASER:
Carolina Termite & Pest Control, Inc. Xxxxxxx Pest Control Corp.
By: By:
---------------------------------- --------------------------------
President President
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ADDENDUM
TO
CLOSING STATEMENT
1. Personal property taxes shall be pro-rated from September 1, 1997 and
billed to Purchaser when paid by Seller.
2. Utilities shall be settle between Seller and Purchaser subsequent to
Closing as final bills are received from utility companies.
3. Vehicles titles shall be transferred promptly after Closing. Xxxxxxx to
pay vehicle transfer taxes.
4. Seller will provide employee Non-Competes promptly after Closing.
SELLER: PURCHASER:
Carolina Termite & Pest Control, Inc. Xxxxxxx Pest Control Corp.
By: By:
---------------------------------- --------------------------------
President President
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