EXHIBIT 2.2
ASSET PURCHASE AGREEMENT
(INVENTORY/ACCOUNTS RECEIVABLE)
THIS ASSET PURCHASE AGREEMENT (the "Agreement"), dated the 14th day
of November, 2001, is entered into by and among RAININ GROUP, INC., a
Massachusetts corporation ("Parent"), RAININ INSTRUMENT, LLC, a Delaware
limited liability company and wholly-owned subsidiary of Parent ("Seller"),
and XXXXXXX-XXXXXX, INC., a Delaware corporation ("Buyer"). Parent, Seller
and Buyer are referred to collectively herein as the "Parties" and are
sometimes referred individually herein as a "Party."
RECITALS
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WHEREAS, Seller and Buyer have negotiated a cash purchase price and
other terms and conditions for the acquisition by Buyer of (i) Seller's
inventory as of the Closing (as defined below), including all raw materials
and supplies, all manufactured and purchased parts, all goods in process,
and all finished goods that are held by Seller primarily for sale to
customers in the ordinary course of its business as of such date (the
"Inventory"), and (ii) Seller's accounts and notes receivable as of the
Closing generated in the Seller's trade or business for services rendered
or from the sale of inventory (the "Accounts Receivable"); and
WHEREAS, Buyer desires to purchase, and Seller desires to sell, the
Inventory and the Accounts Receivable, subject to the terms and conditions
set forth herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the Parties agree as follows:
ARTICLE I
DEFINITIONS
"Accounts Receivable" shall have the meaning set forth in the Recitals
to this Agreement.
"Acquired Assets" means the Inventory and the Accounts Receivable.
"Adjusted Purchase Price" means the Purchase Price, increased by the
Positive Adjustment Amount or decreased by the Negative Adjustment Amount,
as the case may be.
"Affiliate" means, with respect to any person, any other person
directly or indirectly controlling, controlled by, or under common control
with such other person, and in the case of an individual, includes the
individual's immediate family, and the trustees of a trust the
beneficiaries of which include any one or more of the foregoing.
"Agreement" has the meaning set forth in the first paragraph hereof.
"Balance Sheet" means the balance sheet included in the unaudited
financial statements of Parent as of June 30, 2001.
"Balance Sheet Date" means June 30, 2001.
"Buyer" means Xxxxxxx-Xxxxxx, Inc., a Delaware corporation.
"Closing" shall have the meaning set forth in Section 2.03.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Encumbrance" means any lien, claim, charge, security interest,
pledge, mortgage, right of set off, preemptive right, trust arrangement or
other encumbrance (whether arising from contract, by operation of law or
otherwise), except for (i) liens for Taxes and other governmental charges
and assessments arising in the ordinary course of business which are not
yet due and payable, (ii) liens of landlords and liens of carriers,
warehousemen, mechanics and materialmen and other like liens arising in the
ordinary course of business for sums not yet due and payable, and (iii) any
encumbrance created by or through Buyer, MTII or any of MTII's Affiliates.
"FMV of Acquired Assets" shall have the meaning set forth in Section
7.01.
"Inventory" shall have the meaning set forth in the Recitals to this
Agreement.
"Material Adverse Effect" means, with respect to any entity, any
change, event or effect that is materially adverse to the business,
financial condition, operations or capitalization of such entity and its
subsidiaries, taken as a whole; provided, however, that in no event shall
any of the following, alone or in combination, be deemed to constitute, nor
shall any of the following be taken into account in determining whether
there has been or will be, a Material Adverse Effect on any entity: (i) any
change, event or effect that results from changes affecting any of the
industries in which such entity operates generally or (ii) any change,
event or effect that results from changes affecting the United States
economy generally or (iii) any change, event or effect resulting from or
relating to the disruption or loss of existing or prospective customers,
distributors, suppliers, employees or other relationships that result from
or relates to the public announcement or pendency of the transactions
contemplated hereby; and provided further, that the failure of an entity to
meet internal financial projections, estimates or forecasts, in and of
itself, will not constitute a Material Adverse Effect on such entity.
"MTII" means Xxxxxxx-Xxxxxx International, Inc., a Delaware
corporation.
"Negative Adjustment Amount" shall have the meaning set forth in
Section 7.01.
"Neutral Accountants" means a nationally recognized accounting firm
mutually acceptable to Buyer and Parent.
"Parent" means Rainin Group, Inc., a Massachusetts corporation.
"Parties" and "Party" shall have the meanings set forth in the first
paragraph hereof.
"Positive Adjustment Amount" shall have the meaning set forth in
Section 7.01.
"Purchase Agreement" means that certain Purchase Agreement, dated
October 13, 2001, among Parent, Xxxxxxx Xxxxxx, Buyer and MTII.
"Purchase Price" shall have the meaning set forth in Section 2.02.
"Seller" means Rainin Instrument, LLC, a Delaware limited liability
company.
"Tax" means any federal, state, local or foreign income, gross
receipts, license, occupation, capital gains, environmental (including
Taxes under section 59A of the Code), customs, duties, profits, disability,
registration, documentary, alternative or add-on minimum, estimated,
withholding, payroll, employment, unemployment, insurance, social security
(or similar), excise, sales, use, value-added, occupancy, franchise, real
property, personal property, business and occupation, windfall profits,
capital stock, stamp, transfer, worker's compensation or other tax of any
kind whatsoever, including any interest, penalties or additions to tax, and
any interest in respect of such penalties or additions, whether or not
disputed.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of Assets. Upon and subject to the
terms and conditions of this Agreement, Buyer will purchase from Seller,
and Seller will sell, transfer, convey, and deliver to Buyer, all of the
Acquired Assets at the Closing for the consideration set forth in Section
2.02.
SECTION 2.02 Purchase Price. Buyer will pay to Seller at the Closing
$25,735,000 (the "Purchase Price") in cash, payable by wire transfer or
delivery of other immediately available funds.
SECTION 2.03 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") will take place at such place as and
immediately prior to the closing under the Purchase Agreement.
SECTION 2.04 Deliveries at Closing. At the Closing, (i) Seller will
deliver to Buyer the certificate referred to in Section 5.02(d); (ii) Buyer
will deliver to Seller the certificate referred to in Section 5.03(d);
(iii) Seller will execute and deliver to Buyer the Assignment/Xxxx of Sale
substantially in the form attached to this Agreement as Exhibit A; (iv)
Buyer will deliver to Seller the Purchase Price, in the amount and in the
manner specified in Section 2.02; and (v) Buyer and Seller will execute and
deliver to each other a cross-receipt evidencing the transactions
referenced herein.
SECTION 2.05 Allocation of Purchase Price. The Parties agree to
allocate the Adjusted Purchase Price and all other capitalizable costs
among the Acquired Assets in the manner required by section 1060 of the
Code. If the Parties are unable to agree on such allocation within 60 days
after the Closing, Buyer and Parent will select Neutral Accountants to
resolve any disputed matters, the costs of which will be shared equally by
Buyer and Parent. Buyer and Parent will jointly instruct the Neutral
Accountants to resolve any disputed matters regarding the purchase price
allocation within 15 days after referral of the matter to them, and the
decision of the Neutral Accountants will be conclusive and binding upon
Buyer and Parent, absent fraud or manifest error. The Parties agree to
prepare and file IRS Form 8594, including any amendments thereto, in a
manner consistent with the purchase price allocation determined in
accordance with the foregoing. The determination and allocation of the
Adjusted Purchase Price derived pursuant to this Section 2.05 will be
binding on the Parties for all Tax reporting purposes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to Buyer, except as disclosed in the
Disclosure Schedule (Inventory/Accounts Receivable), that the statements
contained in this Article III are true and correct.
SECTION 3.01 Organization, Qualification and Corporate Power. Seller
is a limited liability company duly organized, validly existing and in good
standing as a limited liability company under the laws of the State of
Delaware. Seller has all requisite power and authority to own or lease and
operate its properties and assets and to carry on its business. Seller is
duly qualified to do business in all jurisdictions where the nature of the
properties owned or leased by it or the activities conducted by it make
such qualification necessary.
SECTION 3.02 Capital of Seller.
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(a) All of the issued and outstanding membership units of Seller
have been duly authorized and validly issued, are not subject to
requirements to make capital contributions with respect to capital calls
previously made, and are owned beneficially and of record by Parent, free
and clear of any Encumbrance or any unitholder agreement, voting agreement,
proxy or similar agreement.
(b) There are no outstanding securities convertible into or
exchangeable for or carrying the right to acquire any equity or other
security of any description of Seller and no outstanding options, rights,
warrants or other agreements or commitments that relate to, or require the
issuance, sale or other disposition of, any equity or other securities of
any description of Seller.
SECTION 3.03 Authority and Noncontravention.
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(a) Seller has all requisite power and authority to execute and
deliver this Agreement and the ancillary agreements contemplated hereby to
which Seller is a party and to perform its obligations hereunder and
thereunder. The execution and delivery of this Agreement and the ancillary
agreements contemplated hereby by Seller and the performance thereof and
the consummation by Seller of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary company
action on the part of Seller and no further action is required on the part
of Seller to authorize this Agreement or any ancillary agreements to which
it is a party and the transactions contemplated hereby and thereby. This
Agreement has been duly and validly executed and delivered by Seller and
constitutes the valid and binding obligation of Seller, assuming the due
and valid authorization, execution and delivery by each other Party other
than the Parent, enforceable against Seller in accordance with its
respective terms, except to the extent that such enforceability (i) may be
limited by bankruptcy, insolvency, relief of debtors or other laws relating
to creditors rights generally and (ii) is subject to general principles of
equity, including the discretion of a court in granting equitable remedies.
(b) Neither the execution and delivery by Seller of this
Agreement or the ancillary agreements contemplated hereby to which Seller
is a party, nor the consummation by Seller of the transactions contemplated
hereby or thereby, (i) (A) conflict with or violate any provision of the
Certificate of Formation or Agreement of Limited Liability Company of
Seller, (B) violate, conflict with, or result in a breach of, or default or
loss of benefit under, or give rise to a right of termination,
acceleration, modification or cancellation under, or require any notice,
consent or waiver under, any contract, lease, sublease, license,
sublicense, franchise, permit, instrument of indebtedness or agreement,
obligation or commitment to which Seller is a party or by which it or its
assets is bound, (C) violate or result in the loss of any benefit under any
provision of any applicable law to which Seller is subject, or (D) result
in the imposition of any Encumbrance upon the Acquired Assets, or (ii)
require on the part of Seller or Parent any filing with, or permit,
authorization, consent or approval of, any Authority or give any Authority
the right to challenge any of the transactions contemplated by this
Agreement or the ancillary agreements contemplated hereby, or (iii) violate
any order, writ, injunction, decree, statute, rule or regulation applicable
to Seller or Parent or any of their respective properties or assets.
SECTION 3.04 Inventory. The Inventory consists in all material
respects of items of merchantable quality, useable and saleable in the
ordinary course of business, subject to any reserve applicable to the
Inventory reflected in the Balance Sheet as adjusted for the passage of
time through the Closing in accordance with the past custom and practice of
Parent or, with respect to Inventory created on or after the Balance Sheet
Date, reflected in the books and records of Parent or Seller.
SECTION 3.05 Accounts Receivable. The Accounts Receivable: (i) arose
from bona fide sales of goods or services in the ordinary course of
business; (ii) are owned by Seller free and clear of any Encumbrance and
have not been assigned, transferred, factored or otherwise disposed of by
Seller; and (iii) are collectible in the ordinary course of business at
their aggregate recorded amounts, subject to any reserve applicable to the
Accounts Receivable reflected in the Balance Sheet as adjusted for the
passage of time through the Closing in accordance with the past custom and
practice of Parent or, with respect to Accounts Receivable created on or
after the Balance Sheet Date, reflected in the books and records of Parent
or Seller.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the statements contained
in this Article IV are true and correct.
SECTION 4.01 Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. Buyer has the corporate power to own its properties and to carry
on its business as now being conducted and as currently contemplated to be
conducted and is duly qualified or licensed to do business and is in good
standing in each jurisdiction in which the failure to be so qualified or
licensed would have a Material Adverse Effect on Buyer.
SECTION 4.02 Authorization of Transaction. Buyer has all requisite
power and authority to execute and deliver this Agreement and the ancillary
agreements contemplated hereby and to perform its obligations hereunder and
thereunder. The execution and delivery of this Agreement and the ancillary
agreements contemplated hereby by Buyer and the performance thereof and the
consummation by Buyer of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action on
the part of Buyer and no further action is required on the part of Buyer to
authorize this Agreement or any ancillary agreements to which it is a party
and the transactions contemplated hereby and thereby. This Agreement has
been duly and validly executed and delivered by Buyer and constitutes the
legal, valid and binding obligation of Buyer, assuming the due and valid
authorization, execution and delivery by each other Party, enforceable
against it in accordance with its terms, except to the extent that such
enforceability (i) may be limited by bankruptcy, insolvency, relief of
debtors or other laws relating to creditors rights generally and (ii) is
subject to general principles of equity, including the discretion of a
court in granting equitable remedies.
SECTION 4.03 Noncontravention. Neither the execution and delivery of
this Agreement or the ancillary agreements contemplated hereby by Buyer,
nor the consummation by Buyer of the transactions contemplated hereby or
thereby, (i) (A) conflict with or violate any provision of the Certificate
of Incorporation, as amended, or By-laws of Buyer, (B) violate, conflict
with, or result in a breach of, or default or loss of benefit under, or
give rise to a right of termination, acceleration, modification or
cancellation under, or require any notice, consent or waiver under, any
contract, lease, sublease, license, sublicense, franchise, permit,
instrument of indebtedness or agreement, obligation or commitment to which
Buyer is a party or by which it or its assets is bound, or (C) violate or
result in the loss of any benefit under any provision of any applicable law
to which Buyer is subject; (ii) require on the part of Buyer any filing
with, or permit, authorization, consent or approval of, any Authority or
give any Authority the right to challenge any of the transactions
contemplated by this Agreement or the ancillary agreements contemplated
hereby; or (iii) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Buyer or any of its properties or assets.
ARTICLE V
CONDITIONS TO CLOSING
SECTION 5.01 Conditions to Obligations of Each Party to Effect the
Transaction. The respective obligations of Buyer and Seller to effect the
transactions contemplated by this Agreement are subject to the satisfaction
at or prior to the Closing of all conditions to closing of the transactions
contemplated by the Purchase Agreement other than the conditions to closing
under the Purchase Agreement with respect to the consummation of the
transactions contemplated by this Agreement.
SECTION 5.02 Conditions to Obligation of Buyer. The obligation of
Buyer to consummate the transactions to be performed by it in connection
with the Closing is subject to the satisfaction, or waiver by Buyer, of the
following conditions:
(a) Representations and Warranties. The representations and
warranties of Parent set forth in Article III shall be true and correct in
all material respects at and as of the Closing; provided, however, that
such representations and warranties that address matters as of a particular
date shall be true and correct in all material respects as of such
particular date; and provided further, that for purposes of determining the
accuracy of such representations and warranties for purposes of this
Section 5.02(a) only, (i) any inaccuracy that does not have a Material
Adverse Effect on Seller shall be disregarded, (ii) any inaccuracy that
results from or relates to general business or economic conditions shall be
disregarded, (iii) any inaccuracy that results from or relates to
conditions generally affecting the industry in which Seller competes shall
be disregarded, and (iv) any inaccuracy that results from or relates to the
announcement or pendency of the transactions contemplated by this Agreement
shall be disregarded.
(b) Covenants. Seller shall have performed or complied in all
material respects with its agreements and covenants required to be
performed or complied with under this Agreement as of or prior to the
Closing.
(c) No Material Adverse Change. There shall have been no material
adverse change in the financial condition or results of operations of
Seller since the date of this Agreement; provided, however, that for
purposes of determining whether there shall have been any such material
adverse change, (i) any adverse change resulting from or relating to
general business or economic conditions shall be disregarded, (ii) any
adverse change resulting from or relating to conditions generally affecting
the industry in which Seller competes shall be disregarded, (iii) any
adverse change resulting from or relating to the announcement or pendency
of this transaction or any of the other transactions contemplated by this
Agreement shall be disregarded, and (iv) any adverse change resulting from
or relating to the taking of any action contemplated by this Agreement
shall be disregarded.
(d) Compliance Certificate. Seller shall have delivered to Buyer
a certificate (without qualification as to knowledge or materiality or
otherwise) to the effect that each of the conditions specified in clauses
(a) through (c) of this Section 5.02 is satisfied in all respects.
SECTION 5.03 Conditions to Obligation of Seller. The obligation of
Seller to consummate the transactions to be performed by it in connection
with the Closing is subject to the satisfaction, or waiver by Seller, of
the following conditions:
(a) Representations and Warranties. The representations and
warranties of Buyer set forth in Article IV shall be true and correct in
all material respects at and as of the Closing; provided, however, that,
for purposes of determining the accuracy of such representations and
warranties, (i) any inaccuracy that does not have a Material Adverse Effect
on Buyer shall be disregarded, (ii) any inaccuracy that results from or
relates to general business or economic conditions shall be disregarded,
(iii) any inaccuracy that results from or relates to conditions generally
affecting the industry in which Buyer competes shall be disregarded, and
(iv) any inaccuracy that results from or relates to the announcement or
pendency of the transactions contemplated by this Agreement shall be
disregarded.
(b) Covenants. Buyer shall have performed or complied in all
material respects with its agreements and covenants required to be
performed or complied with under this Agreement as of or prior to the
Closing.
(c) No Material Adverse Change. There shall have been no material
adverse change in the financial condition or results of operations of Buyer
since the date of this Agreement; provided, however, that for purposes of
determining whether there shall have been any such material adverse change,
(i) any adverse change resulting from or relating to general business or
economic conditions shall be disregarded, (ii) any adverse change resulting
from or relating to conditions generally affecting the industry in which
Buyer competes shall be disregarded, (iii) any adverse change resulting
from or relating to the announcement or pendency of this transaction or any
of the other transactions contemplated by this Agreement shall be
disregarded, and (iv) any adverse change resulting from or relating to the
taking of any action contemplated by this Agreement shall be disregarded.
(d) Compliance Certificate. Buyer shall have delivered to Seller
a certificate (without qualification as to knowledge or materiality or
otherwise) to the effect that each of the conditions specified in clauses
(a) through (c) of this Section 5.03 is satisfied in all respects.
ARTICLE VI
TERMINATION OF AGREEMENT
SECTION 6.01 Grounds. This Agreement and the transactions contemplated
by it may be terminated at any time before the Closing as follows; provided
that the terminating Party must give contemporaneous written notice of such
termination to the other Parties:
(a) By mutual written consent of Seller and Buyer;
(b) By Buyer if the conditions to closing set forth in Section
5.01 or Section 5.02 have not been satisfied or have become impossible of
fulfillment at or prior to the Closing and by Seller if the conditions to
closing set forth in Section 5.01 or Section 5.03 have not been satisfied
or have become impossible of fulfillment at or prior to the Closing;
(c) By either Seller or Buyer if the Closing has not occurred on
or before December 31, 2001, or such other date agreed upon in writing by
Seller and Buyer;
(d) by Buyer in the event of any material breach by Parent or
Seller of any of Parent's or Seller's agreements, representations or
warranties contained herein and the failure of Parent or Seller to cure
such breach within 30 days after receipt of written notice from Buyer
requesting that such breach be cured; and
(e) by Seller in the event of any material breach by Buyer of any
of Buyer's agreements, representations or warranties contained herein and
the failure of Buyer to cure such breach within 30 days after receipt of
written notice from Seller requesting that such breach be cured.
SECTION 6.02 Effect of Termination. In the event this Agreement is
terminated pursuant to Section 6.01(a), all obligations of Parent, Seller
and Buyer hereunder will terminate without liability. In such event, each
Party will pay all legal and other costs and expenses incurred by such
Party in connection with this Agreement and the transactions contemplated
hereby. Unless this Agreement is terminated pursuant to Section 6.01(a), if
any of the conditions to the obligations of Buyer in Section 5.01 or
Section 5.02 or of Seller in Section 5.01 or Section 5.03 have not been
satisfied by the Closing, Buyer or Seller, as the case may be, in addition
to any other rights that may be available to it, will have the right to
waive such conditions and to proceed with the Closing and the consummation
of the transactions contemplated by this Agreement. In the event a Party
waives one or more of its conditions and closes the transaction, then such
Party will be precluded from claiming such waived condition is a breach of
the Agreement, and it may not seek indemnification for such breach. Except
as set forth in the preceding sentence, nothing set forth in this Article
VI will relieve any Party from liability for any breach by it of its
obligations under this Agreement.
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.01 Adjusted Purchase Price. Following the Closing, the
Parties will determine the actual fair market value of the Inventory and
face amount of the Accounts Receivable. If the Parties are unable to agree
on the actual fair market value of the Inventory and face amount of the
Accounts Receivable within 30 days after the Closing, Buyer and Parent will
select Neutral Accountants to resolve any disputed matters, the costs of
which will be shared equally by Buyer and Parent. Buyer and Parent will
jointly instruct the Neutral Accountants to resolve any disputed matters
regarding the actual fair market value of the Inventory or the face amount
of the Accounts Receivable within 15 days after referral of the matter to
them, and the decision of the Neutral Accountants will be conclusive and
binding upon Buyer and Parent, absent fraud or manifest error. If the sum
of (i) the fair market value of the Inventory, plus (ii) the face amount of
the Accounts Receivable, in each case as determined in accordance with this
Section 7.01, less (iii) the amount of the reserve applicable to the
Accounts Receivable reflected in the Balance Sheet (the "FMV of Acquired
Assets") exceeds the Purchase Price, the amount of such excess (the
"Positive Adjustment Amount") will be added to the Purchase Price in
determining the Adjusted Purchase Price. If the Purchase Price exceeds the
FMV of Acquired Assets, the amount of such excess (the "Negative Adjustment
Amount") will be subtracted from the Purchase Price in determining the
Adjusted Purchase Price.
SECTION 7.02 Payment of Adjustment Amount. Within 10 days after the
determination of the FMV of Acquired Assets in accordance with Section
7.01, Buyer will pay to Seller the Positive Adjustment Amount, if any, in
immediately available funds or Seller will pay to Buyer the Negative
Adjustment Amount, if any, in immediately available funds.
ARTICLE VIII
MISCELLANEOUS
8.01 No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and their
respective successors and permitted assigns.
8.02 Entire Agreement. This Agreement (including the ancillary
agreements), together with the Purchase Agreement, constitute the entire
agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral,
that may have related in any way to the subject matter hereof.
8.03 Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement
or any of its rights, interest, or obligations hereunder, whether by
operation of law or otherwise, without the prior written approval of the
other Parties; provided that Buyer may assign its rights, interests and/or
obligations hereunder to an Affiliate of Buyer.
8.04 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8.05 Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
8.06 Notices. Any notice, request, demand, claim or other
communication required or permitted by this Agreement shall be in writing
and shall be deemed duly delivered five business days after it is sent by
registered or certified mail, return receipt requested, postage prepaid, or
two business days after it is sent via a reputable worldwide overnight
courier service, in each case to the intended recipient as set forth below:
If to Buyer: with copies to:
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Xxxxxxx-Xxxxxx, Inc. Drake, Sommers, Loeb, Xxxxxxx & Xxxxxxx, PLLC
Im Langacher Xxx Xxxxxx Xxxxx
XX-0000 Xxxxxxxxxx, Xxxxxxxxxxx Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx Attention: Xxxxxxxx X. Xxxxxxx
If to Seller or to Parent: with copies to:
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Xxxxxxx Xxxxxx Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000 Xxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxx
Any Party may give any notice, request, demand, claim or other
communication hereunder by personal delivery or telecopy, but no such
notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until it is actually received by the Party
for whom it is intended. Any notice sent by telecopy shall be followed by a
confirmation copy sent by reputable overnight business courier service. Any
Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
8.07 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the
State of Delaware.
8.08 Amendments and Waivers. The Parties may amend any provision of
this Agreement at any time by a written instrument signed by each of the
Parties. Except as otherwise provided herein, no waiver by either Party of
any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
8.09 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction. If the final judgment
of a court of competent jurisdiction declares that any term or provision
hereof is invalid or unenforceable, the Parties agree that the court making
the determination of invalidity or unenforceability shall have the power to
reduce the scope, duration, or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term
or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as
so modified after the expiration of the time within which the judgment may
be appealed.
8.10 Expenses. Except as otherwise provided herein, each Party will
bear its own costs and expenses (including legal fees and expenses)
incurred in connection with this Agreement and the transactions
contemplated hereby; provided that Parent will bear Seller's costs and
expenses.
8.11 Specific Performance. Each Party acknowledges and agrees that the
other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each Party agrees
that the other Parties shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any
action instituted in any court of the United States or any state thereof
having jurisdiction over the Parties and the matter, in addition to any
other remedy to which it may be entitled, at law or in equity.
8.12 Construction. The language used in this Agreement shall be deemed
to be the language chosen by the Parties to express their mutual intent,
and no rule of strict construction shall be applied against any Party. Any
reference to any federal, state, local, or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise.
8.13 Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference
and made a part hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Parties have executed and delivered this
Agreement to be effective as of the date first set forth above.
PARENT
RAININ GROUP, INC.,
a Massachusetts corporation
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
SELLER
RAININ INSTRUMENT, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
BUYER
XXXXXXX-XXXXXX, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
EXHIBIT A
FORM OF ASSIGNMENT/XXXX OF SALE
(INVENTORY/ACCOUNTS RECEIVABLE)
WHEREAS, pursuant to that certain Asset Purchase Agreement
(Inventory/Accounts Receivable), dated November __, 2001 (the "Agreement"),
among Rainin Group, Inc. ("Parent"), Rainin Instrument, LLC ("Seller"), and
Xxxxxxx-Xxxxxx, Inc. ("Buyer"), Seller has agreed to sell, transfer, convey
and deliver to Buyer all of the Acquired Assets for the amount of the
Adjusted Purchase Price as determined and paid in accordance with the
Agreement (all capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Agreement).
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS THAT Seller, for
good and valuable consideration the receipt of which is hereby
acknowledged, and pursuant to the Agreement, does hereby sell, transfer,
convey and deliver to Buyer and Buyer hereby accepts all of Seller's right,
title and interest in and to all of the assets, properties and rights of
Seller that comprise the Acquired Assets at the close of business on the
date hereof.
TO HAVE AND TO HOLD all said assets, properties and rights unto Buyer,
its successors and assigns forever.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed
and delivered as of the close of business on the ____ day of November,
2001.
RAININ INSTRUMENT, LLC,
a Delaware limited liability company
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
ACCEPTED:
XXXXXXX-XXXXXX, INC.,
a Delaware corporation
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
DISCLOSURE SCHEDULE
NONE.
