EXHIBIT NUMBER 10.53
ASSET PURCHASE AGREEMENT
AMONG
TEKPAK, INC., NIEMAND INDUSTRIES, INC.
AND
GIBRALTAR PACKAGING GROUP, INC.
TABLE OF CONTENTS
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PAGE NO.
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1. PURCHASE AND SALE OF ASSETS 1
1.1 Transferred Assets and Excluded Assets 1
1.2 Liabilities 2
1.3 Assumed Liabilities 2
1.4 Purchase Price and Adjustment of Purchase Price 3
1.5 Allocation of Consideration for Reporting Purposes 5
1.6 Real Estate Lease-Option Agreement 5
1.7 Noncompete Covenants 5
1.8 Seller's Access to Records and Tax Matters 5
1.9 Closing 5
2. REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT 6
2.1 Status and Authority 6
2.2 Taxes 6
2.3 Title to Assets 6
2.4 Commission and Finder's Fee 6
2.5 No Defaults 6
2.6 Environment 7
2.7 Labor and Benefit Programs 7
2.8 Litigation 7
3. REPRESENTATIONS AND WARRANTIES OF BUYER 7
3.1 Status and Authority 8
3.2 No Defaults 8
3.3 Consents 8
3.4 Commission and Finder's Fee 8
3.5 Ability to Close 8
3.6 WARN Act 9
3.7 No Knowledge of Seller's and Parent's Violations of
Representation, Warranties or Covenants 9
4. COVENANTS OF SELLER AND PARENT 9
4.1 Operation of the Business 9
4.2 No Negotiations 9
4.3 Access to Facilities, Files and Records 9
4.4 Representations and Warranties 10
4.5. Consummation of Agreement 10
5. COVENANTS OF BUYER 10
5.1 Confidentiality 10
5.2 WARN Act 10
5.3 Xxxxxxxx Inventory 10
5.4 Collection of Receivables 11
5.5 Assistance With Litigation 11
5A. JOINT COVENANT 11
5A.1 Joint Covenant 11
6. CONDITIONS TO THE OBLIGATIONS OF SELLER 11
6.1 Representations, Warranties, and Covenants 12
6.2 Proceedings 12
6.3 Deliveries 12
6.4 Opinion 12
6.5 Consents and Approvals 12
6.6 Payment of Purchase Price 12
6.7 Waiver of Compensation and Benefits by Xxxxxxx 13
6.8 Failure To Obtain Financing 13
7. CONDITIONS TO THE OBLIGATIONS OF BUYER 13
7.1 Representations, Warranties and Covenants 13
7.2 Proceedings 13
7.3 Deliveries 14
7.4 Tax Certificate 14
7.5 Consents 14
7.6 Release of Claims 14
7.7 Survey and Title Insurance 14
7.8 Opinion 14
7.9 Financing 14
8. ITEMS TO BE DELIVERED AT THE CLOSING 14
8.1 Deliveries by Seller 14
8.2 Deliveries by Buyer 15
9. SURVIVAL; INDEMNIFICATION 15
9.1 Survival 15
9.2 Seller's Indemnity Obligations 15
9.3 Buyer's Indemnity Obligations 16
9.4 Method of Asserting Claims 16
9.4.1 Notice of Claim 16
9.4.2 Payment of Claims 17
9.4.3 Third Party Claims 17
9.5 Limitations on Payments 17
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10. TERMINATION 18
10.1 Termination of Agreement 18
10.2 Liabilities on Termination or Breach 18
11. GENERAL PROVISIONS 18
11.1 Expenses 18
11.2 Further Assurances 18
11.3 Notices 18
11.4 Benefit and Assignment 19
11.5 Publicity 19
11.6 Governing Law 20
11.7 Entire Agreement 20
11.8 Waiver of Terms 20
11.9 Amendment of Agreement 20
11.10 Severability 20
11.11 Counterparts 20
11.12 No Third Party Beneficiaries 20
11.13 Other Rules of Construction 20
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ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made as of the 3rd
day of November, 1999, among TEKPAK, INC., an Alabama corporation ("Buyer"),
NIEMAND INDUSTRIES, INC., a Delaware corporation ("Seller"), and GIBRALTAR
PACKAGING GROUP, INC., a Delaware corporation ("Parent").
RECITALS:
WHEREAS, Seller is a wholly owned subsidiary of Niemand Holdings, Inc.,
a Delaware corporation, which in turn is a wholly owned subsidiary of Parent.
WHEREAS, Seller owns a paper products manufacturing facility located at
0000 X. Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx (the "Facility"). Seller desires to
sell and Buyer desires to purchase certain assets required, used or useful in
the operation of the business presently operated by Seller at the Facility, on
the terms and conditions described in this Agreement.
WHEREAS, Xxxxxxx X. Xxxxxxx ("Xxxxxxx") is currently the President of
the Seller and has held such office since January of 1999; he was the Vice
President of Manufacturing for Seller prior to becoming its President.
WHEREAS, Xxxxxxx has intimate knowledge of the operation and financial
condition of the business of Seller, and of the nature and condition of the
assets used by Seller in connection therewith.
WHEREAS, Xxxxxxx is the President of Buyer and owns or controls all of
the issued and outstanding stock of Buyer.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements of the parties set forth hereinafter, and intending to be legally
bound, the parties agree as follows:
1. PURCHASE AND SALE OF ASSETS.
1.1 Transferred Assets and Excluded Assets . On the terms and
subject to the conditions contained in this Agreement, Seller agrees to sell to
Buyer and Buyer agrees to purchase from Seller at the "Closing" and on the
"Closing Date" (as each is defined in ss. 1.9 below), all of Seller's right,
title and interest in and to the following assets and properties used in
connection with the operation of the business of Seller as presently conducted
at the Facility (except for the "Excluded Assets" described below): (a)
equipment, furniture, fixtures, supplies, and other tangible personal property,
including but not limited to those described in attached Exhibit 1.1(a)
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(the "Equipment"); (b) all inventories, consisting of raw materials,
work-in-process, finished goods and supplies, as set forth in the "Inventory
Schedule" attached as Exhibit 1.1(b) ("Inventory"); (c) the contracts listed on
Exhibit 1.1(c) (the "Transferred Contracts"); (d) patents, trademarks,
copyrights, permits, designs, sketches, drawings, specifications, know-how, and
other intangible rights (the "Intangible Property"); (e) deposits, reserves and
prepaid expenses, to the extent they confer a benefit to and are assignable to
Buyer; provided, however, that the amount thereof does not exceed $10,000; if
the amount is in excess thereof, Buyer shall pay the amount of such excess (the
"Excess Prepayments") to Seller; (f) all of Seller's trade receivables
(excluding any non-trade intercompany receivables) as the same may exist at the
Closing as set forth on the "Accounts Receivable Schedule" attached as Exhibit
1.1(f) (the "Receivables"); and (g) all books, records and files of Seller. The
assets to be sold to Buyer under this Agreement are referred to as the "Assets"
and shall include, but are not limited to, the assets set forth in this ss. 1.1
and the exhibits and schedules referred to in this ss. 1.1. Notwithstanding
anything to the contrary contained in this Agreement, the assets described on
Exhibit 1.1(x) (the "Excluded Assets") will not be sold to Buyer and all of the
Excluded Assets will be retained by Seller.
1.2 Liabilities . Except as otherwise disclosed in and
permitted by this Agreement, the Assets shall be sold to Buyer free and clear of
all mortgages, liens, deeds of trust, security interests, pledges, restrictions,
prior assignments, charges, claims, defects in title and encumbrances of any
kind or type whatsoever (collectively "Security Interests").
1.3 Assumed Liabilities . At the Closing, the Buyer will
assume and agree to perform and discharge when and as due the following
liabilities and obligations, as the same may exist at or accrue following the
Closing Date, and no others (the "Assumed Liabilities"):
(a) obligations arising after the Closing under the
Transferred Contracts;
(b) accounts payable and accrued liabilities of
Seller incurred in the ordinary course of the business and properly
classified as liabilities in accordance with generally accepted
accounting principles, which accounts payables and accrued liabilities
are set forth on the "Accounts Payable Schedule" attached as Exhibit
1.3(b) (the "Accounts Payable");
(c) obligations to provide continuation coverage
under life insurance, medical, health or dental benefits to any former
employee of Seller, or to current employees whose employment ends
during the period from the date of this Agreement through the Closing
Date, as required by the Consolidated Omnibus Budget Reconciliation Act
of 1985 ("COBRA"); provided, however, that this obligation is subject
to the indemnification provision set forth in Section 9.3(e) below; and
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(d) obligations arising out of the operation by the
Buyer of the business acquired pursuant to this Agreement after the
Closing (including, without limitation, the obligation to pay for goods
ordered by Seller in the ordinary course of its business prior to the
Closing but received by Seller subsequent thereto).
Seller shall remain liable for and pay and discharge all liabilities,
obligations, debts or commitments of Seller except for the Assumed Liabilities.
1.4 Purchase Price and Adjustment of Purchase Price .
(a) The Buyer agrees to pay, and the Seller agrees to
accept, as the "Purchase Price" the amount computed as (i) the sum of (A) One
Million Two Hundred Sixty Thousand Dollars ($1,260,000) for the Assets other
than the Receivables and Inventory (the "Fixed Assets") which were owned by
Seller as of March 31, 1999; (B) an amount equal to the cost of any additional
Fixed Assets acquired by Seller on or after April 1, 1999 and prior to the
Closing Date; (C) an amount equal to the amount of the Receivables assigned by
Seller to Buyer under ss. 1.1(f) above; (D) the value of the Inventory at
Closing, computed on a First-In First-Out ("FIFO") basis, assigned by Seller to
Buyer under ss. 1.1(b) above; and (E) the amount of the Excess Prepayments, if
any; (ii) which sum shall be reduced by the amount of the Accounts Payable
assumed by Buyer under ss. 1.3(b) above.
(b) The Purchase Price will be payable in cash at
Closing by wire transfer of immediately available funds to such account as
Seller has designated to Buyer prior to or at the Closing.
(c) The Purchase Price will be subject to adjustment
following the Closing in the manner as described below.
(i) As soon as reasonably practicable after
the 90th day following the Closing Date and in any event no later than the 100th
day following the Closing Date, Buyer will prepare and present to Seller a
schedule reflecting the uncollected Receivables assigned to Buyer under Section
1.1 above (the "Uncollected Receivables Schedule"). At such time, Buyer shall
assign to Seller all of its right, title and interest in the Receivables listed
on the Uncollected Receivables Schedule (the "Uncollected Receivables") and
shall deliver to Seller all of the books, records and/or work papers held by
Buyer or its agents in connection with the creation and collection of the
Uncollected Receivables. Seller will pay in cash to Buyer an amount equal to the
sum of the amount shown on the Uncollected Receivables Schedule within fifteen
(15) days after receipt of the Uncollected Receivables Schedule; provided,
however, that in the event Seller disputes the validity of any item set forth on
the Uncollected Receivables Schedule, it shall so advise Buyer within such
fifteen (15) days, and the dispute shall be resolved pursuant to ss. 1.4(d)
below.
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(ii) The parties will cooperate in
conducting a physical inventory of the Inventory as late as practicable prior to
the Closing, and in preparing a listing of the Inventory resulting therefrom,
valued on a FIFO basis, which will be delivered at the Closing. That listing,
along with any adjustments thereto to which the parties may agree, shall
constitute the value of the Inventory; provided, however, that in the event that
either party disputes the validity of any item set forth therein, it shall so
advise the other party within such fifteen (15) days, and the dispute shall be
resolved pursuant to ss. 1.4(d) below.
(iii) In the event merchandise that was sold
by Seller prior to Closing is returned after Closing by the purchaser of such
merchandise within ninety (90) days after the Closing, and such returned
merchandise is not saleable by Buyer in the ordinary course of its business
(such returned merchandise being referred to hereinafter as "Returns for
Seller's Account"), Buyer shall notify Seller in writing of each such Return for
Seller's Account within ten days of receipt, provide Seller with any information
in connection with such return as may be requested by Seller, and request an
adjustment to the Purchase Price in an amount equal to the amount of its refund
or credit to the customer, or the original selling price to the customer of the
items returned, whichever is less. Unless Seller disputes the appropriateness of
the Return for Seller's Account within fifteen days after receipt of the
foregoing information from Buyer, the Purchase Price shall be adjusted by an
amount equal to the aggregate selling price of all Returns for Seller's Account.
In the event Seller disputes the appropriateness of any item designated by Buyer
as a Return for Seller's Account, it shall so advise Buyer within fifteen (15)
days after its receipt of the required and/or requested information, and the
dispute shall be resolved pursuant to ss. 1.4(d) below.
(d) Any disputes concerning the adjustments to the
Purchase Price described in subsection (c) of this ss. 1.4 shall be resolved in
the following manner: Either party may submit to the other party, within the
time period described in the applicable subsection of ss. 1.4(c) above, a
written report setting forth the adjustment(s) it proposes. If the other party
disagrees, it must deliver written objections within fifteen days after its
receipt of the proposed adjustments. The parties will then attempt to resolve
the matter by way of negotiation in good faith. If they are unable to reach a
resolution within thirty (30) days after the delivery of the last of the written
objections described above, either party may refer the dispute to a nationally
recognized accounting firm mutually acceptable to Seller and Buyer, or to the
Birmingham, Alabama office of the accounting firm of Deloitte & Touche if no
such firm is so mutually acceptable, on the basis that such accounting firm
shall cause an audit partner who is not engaged in providing services to either
Seller or Buyer (the "Arbitrator") to decide the dispute. Prior to so referring
the dispute for decision, Seller and Buyer shall agree on the procedures to be
followed by the Arbitrator including procedures with regard to presentation of
evidence. If they are unable to agree upon such procedures within twenty (20)
days after the referral, the Arbitrator shall establish procedures, which may be
those proposed by either Seller or Buyer or otherwise. The Arbitrator's decision
on any matter so referred to him, including his decision on the merits of the
dispute, shall
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be final and binding. The cost of the Arbitrator of and relating to the making
of any such decision shall be borne equally by the parties, unless the
Arbitrator decides, based on his determination of the good faith of the parties,
that the fee should be borne in some other manner.
1.5 Allocation of Consideration for Reporting Purposes . The
"Consideration" shall be allocated among the Assets, other than the Receivables
and Inventory, in an amount equal to their respective book values at Closing, as
set forth on Exhibit 1.5. The "Consideration" allocated to the Receivables and
Inventory shall be equal to their values as reflected on the "Accounts
Receivable Schedule" and the "Inventory Schedule," respectively. The
"Consideration" shall be the sum of (i) the Purchase Price under ss. 1.4 above
and (ii) the amount of the Accounts Payable at Closing. The parties agree that
the allocation provided for in this ss. 1.5 will be used by them and respected
for all purposes, including income tax purposes, and that the parties will
follow such allocation for all reporting purposes.
1.6 Real Estate Lease-Option Agreement . At the Closing,
Seller and Buyer agree to enter into a lease agreement with an option to
purchase the tract of real estate described on Exhibit 1.6(a) (the "Plant Site"
or "Real Estate") in the form attached to this Agreement as Exhibit 1.6(b) (the
"Real Estate Lease-Option Agreement").
1.7 Noncompete Covenants . At the Closing, Seller and Parent,
respectively, shall enter into noncompete agreements with Buyer in substantially
the form as provided in Exhibit 1.7 attached hereto and made a part hereof (the
"Noncompete Agreements").
1.8 Seller's Access to Records and Tax Matters . Upon request,
the Seller shall have reasonable access to and the right to reproduce all or any
portion of the books, records and files assigned to Buyer, as set forth in ss.
1.1(g) above, during regular business hours for a period of eight (8) years
commencing on the day following the Closing Date. Buyer agrees to maintain and
store such books, records and files and provide reasonable assistance to Seller
in locating and producing any such books, records or files as requested by
Seller. The Buyer and Seller agree to furnish or cause to be furnished to each
other, upon request, as promptly as practicable, such information (including
access to books, records, computer files and personnel) and assistance relating
to tax matters as is reasonably necessary for the filing of any return, for the
preparation for any audit, or for the prosecution or defense of any action with
respect to taxes. The Buyer and Seller shall cooperate with each other in the
conduct of any audit or other proceeding involving Seller or Buyer for any tax
purpose and shall each execute and deliver such powers of attorney and other
documents as are necessary to carry out the intent of this ss. 1.8.
1.9 Closing . The consummation of the transactions provided
for in this Agreement (the "Closing") shall occur on or before November 30, 1999
at such time and place as the parties may agree upon in writing (the "Closing
Date").
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2. REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT. Seller and
Parent, jointly and severally represent to Buyer as follows:
2.1 Status and Authority . Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has full power and authority to own, lease, and operate the
business which it currently operates at the Facility and to carry on such
business as it has historically been conducted. Seller is a wholly owned
subsidiary of Niemand Holdings, Inc., a Delaware corporation, which in turn is a
wholly owned subsidiary of Parent. The execution and delivery of this Agreement
by Seller and the consummation by Seller of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action. This
Agreement constitutes the legal, valid and binding obligation of Seller and
Parent enforceable against them in accordance with its terms.
2.2 Taxes . Seller has properly filed all tax returns required
to be filed as of the date hereof, and has paid all taxes, interest, penalties,
and assessments due to any taxing authority as of the date hereof. Seller has
not been advised that any of its tax returns have been or are being audited as
of the date hereof.
2.3 Title to Assets . On the Closing Date, Seller will have
good, valid, and marketable fee simple title to all of the Assets in each case
free and clear of all Security Interests.
EXCEPT AS SPECIFICALLY SET FORTH IN ss. 2 OF THIS AGREEMENT,
NEITHER SELLER NOR PARENT MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, AND EACH
HEREBY DISCLAIMS ANY SUCH WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE
ASSETS. BUYER IS PURCHASING THE ASSETS "AS IS, WHERE IS."
2.4 Commission and Finder's Fee . Seller represents and
warrants that it has not retained or used the services of any individual, firm
or corporation other than Xxxx Associates, Inc. in such a manner as to entitle
such individual, firm or corporation to any compensation for brokers' or
finders' fees with respect to the transactions contemplated by this Agreement,
and agrees to indemnify Buyer for any claims for any such compensation arising
out of any actual or alleged retention or usage by Seller.
2.5 No Defaults . To the best of Seller's knowledge, Seller is
not in default under any material contract of Seller or any order or law, and
Seller has operated and currently operates the business which it currently
operates at the Facility in compliance with all laws. Neither the execution and
delivery of this Agreement nor the consummation by Seller of the transactions
contemplated hereby is an event that, of itself or with the giving of notice or
the passage of time or both, will: (a) constitute a breach of any contract of
Seller; or (b) violate any order or law.
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2.6 Environment . Except as set forth on Exhibit 2.6, (i)
Seller and its affiliates have complied with all environmental laws and Seller
has received no notice from any person alleging noncompliance with any
environmental law or releases of hazardous substances into the environment; (ii)
neither Seller nor its affiliates have handled or disposed of any substance,
arranged for the disposal of any substance, or owned or operated any property or
facility in violation of any environmental laws, or in any manner that could
form the basis for any present or future claim against any of them or Buyer;
(iii) all properties and equipment used in the business of Seller have been and
are free of hazardous substances; and (iv) no underground or aboveground storage
tanks are or have been located at the Facility. Seller has provided complete and
correct copies of all inspections, reports, and other materials regarding
Seller's compliance with any applicable environmental law.
2.7 Labor and Benefit Programs . Except for the agreement
between Seller and Parent and the Retail, Wholesale & Department Store Union,
AFL-CIO (the "Union"), about which Seller has full knowledge, there are no
collective bargaining agreements or contracts relating to Seller's employees,
and all employees of Seller other than those covered by the agreement between
the company and the Union are employees at will. Seller is not engaged in any
unfair labor practice or unlawful employment practice with respect to any of its
employees. Except as set forth on Exhibit 2.7, there is no (a) unfair labor
practice charge or other employee related complaint, grievance, or arbitration
pending or threatened against Seller, (b) strike, picketing, slowdown, or work
stoppage by or concerning Seller's employees, or (c) any other labor dispute
pending against or involving Seller. Except as described on Exhibit 2.7, Seller
has no pension, profit sharing, disability, life or health insurance, or other
benefit plan or arrangement ("Benefit Plans"). None of Seller's Benefit Plans is
a "multi-employer plan" (within the meaning of Section 3(37) of ERISA). Seller
has not engaged in any act or omission with respect to any of Seller's Benefit
Plans which could subject Buyer, Seller, or Seller's Benefit Plans to a penalty
tax, excise tax, other tax, penalty, or other liability or obligation. Seller
(i) has never contributed to a multi-employer pension plan; and (ii) has never
incurred any liability under Title IV of ERISA to the Pension Benefit Guaranty
Corporation or to a multi-employer pension plan. Seller does not maintain, has
never maintained, does not contribute to, has never contributed to, and has
never been required to contribute to, a plan providing medical, health, life
insurance, or other welfare benefits for current or future retired or terminated
employees at the Facility, their spouses, or their descendants, except as
required under Section 4980B of the Internal Revenue Code or Part 6 of Title I
of the Employee Retirement Income Security Act of 1974, as amended.
2.8 Litigation . Except as set forth on Exhibit 2.8, there are
no suits, arbitrations, or other proceedings pending against, or to the best of
Seller's knowledge threatened against, the Facility or Seller.
3. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows:
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3.1 Status and Authority . Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Alabama and has all requisite power and authority to own or hold under lease its
properties and assets and to carry on its business as now conducted. Buyer has
all necessary power and authority to make, execute and deliver this Agreement
and all other agreements and documents to be executed and delivered by it
pursuant to this Agreement; and Buyer has taken all necessary actions required
to be taken to authorize it to execute and deliver this Agreement and such other
agreements, and to perform all of its obligations, undertakings and agreements
to be observed and performed by it hereunder and thereunder. This Agreement has
been duly executed and delivered by Buyer, and constitutes the legal, valid and
binding obligation of Buyer enforceable against it in accordance with its terms.
3.2 No Defaults . Neither the execution and delivery of this
Agreement nor the consummation by Buyer of the transactions contemplated hereby
is an event that, of itself or with the giving of notice or the passage of time
or both, will: (a) constitute a violation of, or be in conflict with, or result
in a cancellation of, or constitute a default under, or create (or cause the
acceleration of the maturity of) any debt, obligation or liability affecting, or
result in the creation or imposition of any Security Interest upon any of the
assets owned or used by, or any of the capital stock of Buyer under: (i) any
term or provision of the certificate of incorporation or by-laws (or other
organizational document) of Buyer; (ii) any judgment, decree, order, regulation
or rule of any court or governmental authority; (iii) any law or regulation;
(iv) any contract, agreement, indenture, lease or other commitment to which
Buyer is a party or by which it is bound; or (b) cause any material change in
the rights or obligations of any party under any such contract, agreement,
indenture, lease or commitment.
3.3 Consents . No consent of any federal, state or local
authority, or any private person or entity, is required to be obtained, no
notice is required to be given to any such authority, person or entity, by Buyer
in connection with the execution, delivery or performance of this Agreement or
any other agreement or document to be executed, delivered or performed hereunder
by Buyer or the consummation of the transactions contemplated hereby.
3.4 Commission and Finder's Fee . Buyer represents and
warrants that it has not retained or used the services of any individual, firm
or corporation, in such a manner as to entitle such individual, firm or
corporation to any compensation for brokers' or finders' fees with respect to
the transactions contemplated by this Agreement, and agrees to indemnify Seller
for any claims for any such compensation arising out of any alleged retention or
usage by Buyer.
3.5 Ability to Close . On the Closing Date, Buyer will have
readily available the funds necessary to consummate the transactions herein
contemplated.
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3.6 WARN Act . Buyer shall not cause a plant closing or mass
layoff (as those terms are defined in the Worker Adjustment and Retraining
Notification Act of 1988) with respect to the business operation and workers of
the Facility when the events that occurred pre-Closing (while Facility was under
the Seller's control) are aggregated and considered together with the events
that occur post-Closing.
3.7 No Knowledge of Seller's and Parent's Violations of
Representation, Warranties or Covenants . As of the date of this Agreement, and
at the Closing, Xxxxxxx does not have, and will not have, any actual knowledge,
that (i) any of Seller's or Parent's representations, warranties and/or
covenants is or was not true or correct in all material respects as of the date
when made, or on the Closing Date, and (ii) Seller or Parent did not, or could
not, perform or comply in all material respects with each and every covenant and
agreement required by this Agreement.
4. COVENANTS OF SELLER AND PARENT. Seller and Parent, jointly and
severally covenant and agree that from the date hereof until the completion of
the Closing:
4.1 Operation of the Business .
(a) Seller shall operate the business which it
currently operates at Facility in the ordinary course of business and consistent
with past practices (subject to the requirements of xx.xx. 4.4 and 4.5) and
maintain its current level of insurance coverage on the Assets.
(b) Except in the ordinary course of business and
consistent with past practices, Seller shall not, without the prior written
consent of Buyer: (i) sell, lease, transfer, or agree to sell, lease or
transfer, any of the Assets; (ii) enter into, renew or amend any collective
bargaining agreement; (iii) enter into, renew or amend any Transferred Contract;
or (iv) make any change in the Facility's buildings, improvements, or fixtures.
4.2 No Negotiations . Unless and until this Agreement is
terminated pursuant to the terms of ss. 10.1, neither Seller nor Parent shall
(a) actively pursue negotiations, respond to proposals or offers from any other
person or entity with respect to the sale of the business which it currently
operates at the Facility, the Facility, or the Assets, (b) enter into any
agreement with any other person or entity with respect to the sale of the
business which it currently operates at the Facility, the Facility, or the
Assets, or (c) meet with prospective purchasers of the business which it
currently operates at the Facility, the Facility, or the Assets, in each case,
other than Buyer.
4.3 Access to Facilities, Files and Records . At the
reasonable request of Buyer, Seller shall give Buyer: (a) full access to the
Facility and the Assets and to key management and engineering employees of the
Facility; and (b) full information concerning the Assets and the Facility.
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4.4 Representations and Warranties . Seller shall notify Buyer
promptly upon learning of any event that would cause or constitute a breach of
any representations or warranties of Seller or Parent contained in this
Agreement.
4.5. Consummation of Agreement . Seller and Parent shall use
their best efforts to cause the transactions contemplated by this Agreement to
be fully carried out.
5. COVENANTS OF BUYER.
5.1 Confidentiality . Buyer will not disclose any information
obtained under ss. 4.3 of this Agreement other than to those assisting Buyer in
evaluating and closing this transaction. Buyer's confidentiality obligations
shall not apply to information which (a) is already in the possession of Buyer
and not subject to restrictions on confidentiality (which shall not include
information in the possession of Xxxxxxx in his capacity as an employee and/or
executive of Seller), (b) becomes generally available to the public other than
as a result of its disclosure by Buyer, (c) becomes available to Buyer on a
non-confidential basis from a source other than Seller or its advisors, or (d)
which is required to be disclosed by law or pursuant to legal process. If this
Agreement is terminated, Buyer will destroy or deliver to Seller upon request,
all documents and other materials, and all copies thereof, obtained under ss.
4.3 of this Agreement.
5.2 WARN Act . Buyer agrees and covenants that immediately
following the Closing it will hire and retain the Facility's workers for so much
time as is and to the extent necessary, when considered together with the
Facility's workers discharged prior to Closing, to not cause a plant closing or
mass layoff (as those terms are defined in the Worker Adjustment and Retraining
Notification Act of 1988) with respect to the business operation of the
Facility.
5.3 Xxxxxxxx Inventory . For a period of twelve months after
the Closing, Buyer agrees to serve as agent for Seller in connection with the
sale by Seller of all or any portion of the Xxxxxxxx Inventory, as further
described on Exhibit 5.3. As Seller's agent for this purpose, Buyer agrees to
properly store and maintain the Xxxxxxxx Inventory at the premises of the
Facility in the same or similar manner that Seller currently stores and
maintains the Xxxxxxxx Inventory, and to process orders from Xxxxxxxx for the
purchase of items of the Xxxxxxxx Inventory (including order taking, order
filling, packing, shipping, billing and collection). Buyer and Seller agree to
cooperate with each other to the fullest extent and agree to provide each other
with all reasonable assistance, as requested by either party, in connection with
any sale or proposed sale of all or any portion of the Xxxxxxxx Inventory. At
any time prior to the end of the twelve month period, Seller shall advise Buyer
as to the disposition of the remaining Xxxxxxxx Inventory, and Buyer shall
cooperate in such disposition. For its services as Seller's agent and for its
storage and disposal of the Xxxxxxxx Inventory pursuant to this ss. 5.3, Seller
shall pay in cash to Buyer, upon receipt of Buyer's invoice, (i) an
administrative fee of $250.00 for each sale transaction, regardless of the
amount
14
of product sold in connection with such sale transaction, and (ii) an amount
equal to the direct cost incurred by Buyer to unrelated third parties in
connection with the disposal of Xxxxxxxx Inventory which (A) is remaining at the
Facility at the end of such twelve month period, and/or (B) was disposed of at
the direction of Seller prior to the end of such period.
5.4 Collection of Receivables . Buyer shall use all reasonable
efforts to collect the Receivables during the first ninety (90) days after the
Closing, and such efforts shall be no less than the efforts Buyer expends in the
collection of other accounts receivable. In the event that an account debtor who
is both the debtor with respect to a Receivable and with respect to an account
generated with Buyer after the Closing, payments by such account debtor which
have not been allocated by the customer to a specific invoice will be deemed to
be made on the oldest amount owed first. Neither party will take any steps to
influence a customer to allocate any payment in any particular way. Any amount
paid to Buyer which is allocable to any of the Receivables will be delivered by
Buyer to Seller, in the form received, without delay. Within five (5) business
days after the end of each calendar month which falls during the first ninety
(90) days after the Closing, Buyer shall send to Seller an accounts receivable
aging report showing, among other things, the amount collected from each account
debtor during such calendar month, and the balance outstanding for each such
account debtor.
5.5 Assistance With Litigation . The parties acknowledge that,
while Seller shall remain responsible for the litigation described on Exhibit
2.8, it will be difficult for Seller to defend such litigation without the
involvement of Xxxxxxx and/or certain employees of Seller who may be, after the
Closing, employees of Buyer. Accordingly, Xxxxxxx and Buyer each agrees to use
all reasonable efforts to assist Seller in the defense of claims for which
Seller remains responsible, including, without limitation, making records and
employees available to Seller and its counsel from time to time, at reasonable
times and places.
0X. XXXXX XXXXXXXX.
0X.0 Xxxxx Xxxxxxxx . The parties jointly covenant to use
their respective best efforts to jointly prepare all of the exhibits and
schedules required by this Agreement, and to reach agreement on the provisions
thereof prior to the Closing. If they are unable to reach agreement as to any
particular exhibit or schedule, the disputed portion shall be subject to
resolution in the manner described in Section 1.4(d) above.
6. CONDITIONS TO THE OBLIGATIONS OF SELLER. The obligations of Seller
under this Agreement are, at its option, subject to the fulfillment of the
following conditions prior to or on the Closing Date:
15
6.1 Representations, Warranties, and Covenants .
(a) Each of the representations and warranties of
Buyer contained in this Agreement shall have been true and correct in all
material respects as of the date when made and shall be deemed to be made again
on and as of the Closing Date and shall then be true and correct in all material
respects. Buyer shall have performed and complied in all material respects with
each and every covenant and agreement required by this Agreement to be performed
or complied with by it prior to or on the Closing Date.
(b) Buyer shall have furnished Seller with a
certificate, dated as of the Closing Date and duly executed by an officer
authorized on behalf of Buyer to give such a certificate to the effect that the
conditions set forth in ss. 6.1(a) have been satisfied.
6.2 Proceedings . No party hereto shall be subject to any
restraining order or injunction restraining or prohibiting the consummation of
the transactions contemplated by this Agreement. No action or proceeding shall
have been instituted before any court or governmental body to restrain or
prohibit, or to obtain damages in respect of, the consummation of the
transactions contemplated by this Agreement or any matters related to or arising
out of the transactions contemplated by this Agreement; and none of the parties
to this Agreement shall have received notice from any person, entity or
governmental body of (i) its intention to institute any action or proceeding to
restrain or prohibit, or to obtain damages in respect of, this Agreement, the
transactions contemplated hereby, or any matters related to or arising out of
the transactions contemplated by this Agreement, or to commence any
investigation into any of the foregoing, or (ii) the actual commencement of such
an investigation.
6.3 Deliveries . Buyer shall have complied with each and every
one of its obligations set forth in ss.8.2.
6.4 Opinion . Seller will have received from counsel to Buyer
an opinion of such counsel, dated the Closing Date, in the form attached as
Exhibit 6.4.
6.5 Consents and Approvals . All material authorizations,
consents, waivers or approvals or other action required in connection with the
execution, delivery and performance of this Agreement by Buyer, and the
consummation by Buyer of the transactions contemplated hereby, all as so
indicated in Exhibit 6.5 attached hereto, will have been obtained and Buyer will
have obtained any authorizations, consents, waivers, approvals or other action
required in connection with the execution, delivery and performance of this
Agreement to prevent a material breach or default by Seller under any contract
to which Seller is a party.
6.6 Payment of Purchase Price . Buyer shall have paid the
Purchase Price of the Assets as provided in ss.1.4 above.
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6.7 Waiver of Compensation and Benefits by Xxxxxxx . On or
before the Closing Date, Xxxxxxx shall deliver to Seller a waiver of any and all
of his right to, and a release of the Seller from any claim for, compensation,
benefits, severance pay or any other remuneration that is or may be due to
Xxxxxxx from Seller for any period before or after the Closing Date, in the form
attached to this Agreement as Exhibit 6.7.
6.8 Failure To Obtain Financing . In the event that Buyer has
not obtained the financing described in Section 7.9 below, and advised Seller
thereof, on or before November 30, 1999, at any time after November 30, 1999
Seller may elect to terminate this Agreement.
7. CONDITIONS TO THE OBLIGATIONS OF BUYER. The obligations of Buyer
under this Agreement are, at its option, subject to the fulfillment of the
following conditions prior to or on the Closing Date:
7.1 Representations, Warranties and Covenants .
(a) Each of the representations and warranties of
Seller and Parent contained in this Agreement shall have been true and
correct in all material respects as of the date when made and shall be
deemed to be made again on and as of the Closing Date and shall then be
true and correct in all material respects. Seller and Parent shall have
performed and complied in all material respects with each and every
covenant and agreement required by this Agreement to be performed or
complied with by them prior to or on the Closing Date.
(b) Seller and Parent shall have furnished Buyer with
a certificate, dated the Closing Date and duly executed by an officer
authorized on behalf of Seller to give such a certificate and by
Parent, to the effect that the conditions set forth in ss. 7.1(a) have
been satisfied.
7.2 Proceedings . No party hereto shall be subject to any
restraining order or injunction restraining or prohibiting the consummation of
the transactions contemplated by this Agreement. No action or proceeding shall
have been instituted before any court or governmental body to restrain or
prohibit, or to obtain damages in respect of, the consummation of the
transactions contemplated by this Agreement or any matters related to or arising
out of the transactions contemplated by this Agreement; and none of the parties
to this Agreement shall have received notice from any person, entity or
governmental body of (i) its intention to institute any action or proceeding to
restrain or prohibit, or to obtain damages in respect of, this Agreement, the
transactions contemplated hereby, or any matters related to or arising out of
the transactions contemplated by this Agreement, or to commence any
investigation into any of the foregoing, or (ii) the actual commencement of such
an investigation.
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7.3 Deliveries . Seller shall have complied with each one of
its obligations set forth in ss. 8.1.
7.4 Tax Certificate . Seller shall have furnished Buyer with a
certificate from the Alabama Department of Revenue showing that all Alabama
state taxes and unemployment compensation contributions have been paid for
periods through and including the Closing Date.
7.5 Consents . All material consents, approvals, permits and
waivers of or from other persons or entities as may be required for the
consummation of the transactions contemplated by this Agreement and Buyer's
operation of the Facility following the Closing, all as so indicated in Exhibit
7.5, shall have been obtained.
7.6 Release of Claims . Parent and Seller shall have executed
and delivered a release, in form and substance acceptable to Buyer, of all
claims and/or causes of actions Parent and Seller have or might have against
Buyer and Xxxxxxx except for claims arising out of or related to (i) Buyer's
breach of this Agreement, and (ii) Xxxxxxx'x embezzlement, fraud, or misconduct
of which Parent or Seller has no knowledge as of the Closing.
7.7 Survey and Title Insurance . Seller shall have obtained
and delivered to Buyer a survey of the Real Estate, in form and substance
reasonably acceptable to Buyer, certified to Buyer and a title insurance company
selected by Buyer (the "Title Company"). The Title Company shall be obligated to
issue an owner's leasehold title insurance policy with respect to the Real
Estate owned by Seller, in form and substance reasonably acceptable to Buyer
insuring title to the Real Estate at not less than its fair market value.
7.8 Opinion . Buyer will receive from Xxxxxxx Xxxxxxx & Xxxxxx
P.L.L., counsel to Seller, an opinion of such counsel, dated the Closing Date,
in the form attached as Exhibit 7.8.
7.9 Financing . Buyer shall have obtained sufficient
financing, on terms satisfactory to Buyer, to allow it to consummate the
transactions contemplated by this Agreement; provided, however, that if Buyer
has not advised Seller, in writing, or before November 30, 1999, that Buyer has
been unable to obtain such financing and elects not to proceed to a closing,
this financing contingency shall be of no further force or effect.
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8. ITEMS TO BE DELIVERED AT THE CLOSING.
8.1 Deliveries by Seller . At the Closing, Seller and Parent
shall deliver to Buyer duly executed by Seller or such other signatory as may be
required by the nature of the document: (a) bills of sale, deeds, leases and
other instruments of transfer conveying the Assets to Buyer in form and
substance reasonably satisfactory to Buyer; (b) the required consents under ss.
7.5, if any; (c) certified copies of resolutions of the Board of Directors and
shareholder of Seller authorizing the execution, delivery, and performance of
this Agreement and the consummation of the transactions contemplated thereby;
(d) the certificate referred to in ss. 7.1(b); (e) the Real Estate Lease-Option
Agreement; (f) an opinion from counsel as required under ss. 7.8; (g) a
certificate or affidavit in the form prescribed by the Internal Revenue Service
under the Foreign Investment in Real Property Tax Act stating its office address
and tax identification number and stating that it is not a foreign corporation
for U.S. income tax purposes; (h) the survey and title insurance policy referred
to in ss. 7.7; and (i) the noncompete agreements referred to in ss. 1.7.
8.2 Deliveries by Buyer . At the Closing, Buyer shall deliver
to Seller: (a) the Purchase Price, which shall be paid in the manner specified
in ss. 1.3; (b) the Real Estate Lease-Option Agreement; (c) an instrument or
instruments of assumption of the Transferred Contracts, in accordance with the
terms hereof; (d) certified copies of resolutions of the Board of Directors and
shareholders of Buyer authorizing the execution, delivery, and performance of
this Agreement and the consummation of the transactions contemplated thereby;
(e) the certificate referred to in ss. 6.1(b); (f) the consents and approvals
required under ss. 6.5; and (g) an opinion from Buyer's counsel as required
under ss. 6.4.
9. SURVIVAL; INDEMNIFICATION.
9.1 Survival . Except for the representation concerning title
set forth in ss.2.3, all representations and warranties contained in this
Agreement, or in any exhibit, schedule, certificate, agreement, document, or
statement delivered pursuant hereto, shall survive for twelve (12) months
following the Closing. The representations and warranties of title set forth in
ss. 2.3 shall survive Closing without temporal limitation.
9.2 Seller's Indemnity Obligations . Seller and Parent shall
jointly and severally indemnify, defend, and hold Buyer, its affiliates, and its
or their officers, directors, employees, agents, successors and assigns harmless
from and against any and all claims, actions, causes of action, orders,
arbitrations, proceedings, losses, damages, liabilities, judgments, and expenses
(including, without limitation, all legal expenses and the costs and expenses of
enforcing this Agreement or collecting any amounts due under this Agreement)
(collectively referred to as "Losses"), arising from or as a result of any of
the following: (a) any material breach of or material misrepresentation in any
of the representations and warranties made by or on behalf of Seller and Parent
in this Agreement or in any exhibit, schedule, certificate, agreement,
19
document, or statement delivered pursuant hereto; (b) any material violation or
material breach by Seller or Parent of or material default by Seller or Parent
of any of the covenants or agreements contained in this Agreement or in any
exhibit, schedule, certificate, agreement, document, or statement delivered
pursuant hereto; (c) any liabilities, obligations, debts, or commitments of
Seller or Parent whatsoever, whether accrued now or hereafter, whether fixed or
contingent, whether known or unknown, other than the Assumed Liabilities; and
(d) "Excess Insurance Premiums" (as hereinafter defined). However, Buyer will be
deemed to have waived its indemnification rights under this Agreement with
respect to Losses arising in connection with (i) any of Seller's or Parent's
representations, warranties and/or covenants to the extent that Xxxxxxx knew
that any such representation, warranty or covenant was not true or correct in
all material respects as of the date when made or on the Closing Date, and (ii)
Seller's and Parent's performance or compliance with each and every covenant and
agreement required by this Agreement to the extent that Xxxxxxx knew that Seller
or Parent did not, or could not, perform or comply in all material respects with
any such covenant or agreement. "Excess Insurance Premiums" shall mean the
amount (if any) by which the cost of Buyer's life, medical, health and/or dental
insurance premiums for Buyer's employees and covered dependents has increased
during the three year period beginning on the Closing Date solely because of the
inclusion of the "COBRA Participants" (as hereinafter defined) in the group of
persons covered by Buyer's insurance plans. The "COBRA Participants" are the
former employees of Seller, and the dependents thereof, identified on Exhibit
9.2(d) hereto. Notwithstanding any provision of this Agreement to the contrary,
with respect to claims for indemnification pursuant to Section 9.2(d) only, (i)
Buyer shall have the burden of proving that covered Losses were caused directly
and solely because of providing coverage to the COBRA Participants, (ii)
insurance premiums for coverage for the COBRA Participants, to the extent paid
to Buyer or the insurance carrier by the COBRA Participants, shall not be
included among the Losses, (iii) claims shall be made annually, (iv) all claims
must be asserted prior to the anniversary of the Closing Date in 2003, and (v)
the limitations on payments set forth in Section 9.5 below shall not apply to
claims under Section 9.2(d).
9.3 Buyer's Indemnity Obligations . Buyer shall indemnify,
defend, and hold Seller and Parent, their affiliates, and their officers,
directors, employees, agents, successors and assigns harmless from and against
any and all Losses arising from or as a result of any of the following: (a) any
material breach of or material misrepresentation in any of the representations
and warranties made by or on behalf of Buyer in this Agreement or in any
exhibit, schedule, certificate, agreement, document, or statement delivered
pursuant hereto; (b) any material violation or material breach by Buyer of or
material default by Buyer of any of the covenants or agreements contained in
this Agreement or in any exhibit, schedule, certificate, agreement, document, or
statement delivered pursuant hereto; (c) any Assumed Liabilities; and (d) any
liabilities relating to the operation of the Facility conducted by Buyer arising
after the Closing Date.
9.4 Method of Asserting Claims .
20
9.4.1 Notice of Claim . If any legal proceedings are
instituted or any claim or demand given by any person, in respect of
which payment may be sought by any party or parties from any other
party or parties under the provisions of xx.xx. 9.2 or 9.3, the party
or parties seeking indemnification (collectively, the "Indemnitee")
shall cause written notice of any claim of which it has knowledge which
is covered by this Agreement to be forwarded promptly to the party or
parties from which indemnification is sought (collectively, the
"Indemnitor"). Such notice shall specify the amount and nature of the
claim and the reason why it constitutes an indemnified liability, it
being understood that failure to provide notice shall not relieve the
other party from liability except to the extent damages or prejudice
results from such failure.
9.4.2 Payment of Claims . In the event of a Loss
other than a third party claim, the Indemnitor shall remit the amounts
due, as indicated in such notice, within 30 days of receipt thereof
unless the Indemnitor asserts in a writing delivered to the Indemnitee
that the claim is not an indemnified liability or disputes the amount
of the Loss. The failure by the Indemnitor to respond within 30 days of
receipt of such notice shall be deemed to be an acknowledgment of the
correctness of the amounts due as set forth in the notice.
9.4.3 Third Party Claims . If any action is brought
by a third party against any Indemnitee with respect to which such
Indemnitee is entitled to indemnification hereunder and notice of such
action to the Indemnitor has been given pursuant to ss. 9.4.1, the
Indemnitor will be entitled to participate therein, and to the extent
it may elect by written notice delivered to the Indemnitee within 30
days after receiving the notice from Indemnitee, to assume the defense
thereof with counsel reasonably satisfactory to Indemnitee. Indemnitee
shall cooperate with respect to any such participation or defense.
Notwithstanding the foregoing, the Indemnitee shall have the right to
employ its own counsel in any such case but the fees and expenses of
such counsel shall be at the expense of such Indemnitee, unless (i) the
employment of such counsel at the expense of the Indemnitor shall have
been authorized in writing by the Indemnitor, or (ii) the Indemnitor
shall not have employed counsel reasonably satisfactory to such
Indemnitee to have charge of the defense of such action within thirty
days after notice of commencement of the action, or (iii) such
Indemnitee shall have reasonably concluded, based upon written advice
of counsel, that there may be defenses available to it which are
different from or additional to those available to the Indemnitor (in
which case the Indemnitor shall not have the right to direct the
defense of such action on behalf of the Indemnitee with respect to such
different defenses), in any of which events such fees and expenses of
one additional counsel shall be borne by the Indemnitor.
Notwithstanding anything in this ss. 9 to the contrary, an Indemnitor
shall not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent is
not unreasonably withheld. Upon payment of indemnification by the
21
Indemnitor, the Indemnitee, if requested in writing by the Indemnitor,
will assign to Indemnitor its rights against any applicable account
debtor or other responsible person to the extent of the indemnification
payment.
9.5 Limitations on Payments . Notwithstanding anything to the
contrary herein, the parties agree that (i) the Indemnitee shall not be entitled
to receive any payment from the Indemnitor until such time as the Indemnitee has
sustained Losses in excess of Five Thousand Dollars ($5,000), and the Indemnitor
shall not be required to pay that amount, and (ii) the aggregate liability of
any Indemnitor under xx.xx. 9.2 or 9.3 shall not exceed an amount equal to the
Purchase Price. The limitations contained in this ss. 9.5 shall not apply to a
Loss resulting from any Indemnitor's willful misconduct, intentional
misrepresentation or fraud.
10. TERMINATION.
10.1 Termination of Agreement . This Agreement may be
terminated: (a) at any time on or prior to the Closing Date by the mutual
consent of the parties; (b) by Buyer if on the Closing Date Seller has failed to
satisfy the conditions set forth in ss. 7; or (c) by Seller if on the Closing
Date Buyer has failed to satisfy the conditions set forth in ss. 6.
10.2 Liabilities on Termination or Breach . Except for the
obligations contained in ss. 5 with respect to confidentiality, upon termination
of this Agreement pursuant to ss. 10.1, this Agreement shall be null and void,
and no party hereto shall have any rights, liabilities, or obligations under
this Agreement.
11. GENERAL PROVISIONS.
The parties further covenant and agree as follows:
11.1 Expenses . Each party hereto shall bear all of its
expenses incurred in connection with the transactions contemplated by this
Agreement, including without limitation, accounting and legal fees incurred in
connection herewith; provided, however, that Seller shall pay, or reimburse
Buyer for, all sales and transfer taxes arising from the transfer of the Assets
to Buyer.
11.2 Further Assurances . From time to time prior to, on and
after the Closing Date, each party will take all actions as are reasonably
requested, without payment of further consideration, to carry out the purpose of
this Agreement.
11.3 Notices . All notices and other communications required
or permitted under this Agreement shall be in writing (which shall include
notice by facsimile transmission) and shall be deemed to have been made and
received when personally served, or when delivered by Federal Express or a
similar overnight courier
22
service, expenses prepaid, or, if sent by facsimile communications equipment,
delivered by such equipment, addressed as set forth below:
If to Buyer: TEKPAK, Inc.
0000 Xxxxx Xxxxxxxxxx Xx.
Xxxxxx, XX 00000
TELEPHONE:
FACSIMILE:
If to Seller: Niemand Industries, Inc.
x/x Xxxxxxxxx, Xxxxxxxxx Packaging Group, Inc.
0000 Xxxxxx Xxxxxx
X. X. Xxx 0000
Xxxxxxxx, XX 00000
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
and
Xxxxxxx Xxxxxxx & Xxxxxx, P.L.L.
Attn: Xxxx X. Xxxxx, Esq.
0000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
If to Parent: Gibraltar Packaging Group, Inc.
0000 Xxxxxx Xxxxxx
X. X. Xxx 0000
Xxxxxxxx, XX 00000
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
Any party may change the address, or facsimile number to which communications
are to be sent by giving notice of such change in accordance with the provisions
of this section providing for the giving of notice.
11.4 Benefit and Assignment . This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns as permitted hereunder. No person or entity other than
the parties hereto is or shall be entitled to bring any action to enforce any
provision of this Agreement against any of the parties hereto, and the covenants
and agreements set forth in this Agreement shall be solely for the benefit of,
and shall be enforceable only by, the parties hereto or their respective
successors and assigns as permitted hereunder. No party to this Agreement may
assign this Agreement or any rights hereunder without the prior written consent
of the parties hereto. Notwithstanding the foregoing, Buyer may
23
assign any of its rights and delegate its duties hereunder to any person,
corporation, partnership or other entity that directly or indirectly owns or
controls, is owned or controlled by, or is under common ownership or control
with, Buyer or any of its shareholders or affiliates.
11.5 Publicity . Neither party hereto will issue any press
release or otherwise make any public statement with respect to this Agreement
and the transactions contemplated hereby without the prior written consent of
the other, except as may be required by applicable laws, in which event the
party required to make the release or announcement shall, if possible, allow the
other party reasonable time to comment on such release or announcement in
advance of such issuance.
11.6 Governing Law . This Agreement and all questions relating
to its validity, interpretation, performance and enforcement shall be governed
by and construed in accordance with the laws of the State of Alabama, excluding
any choice of law rules which may direct the application of the laws of another
jurisdiction.
11.7 Entire Agreement . This Agreement, and the schedules and
exhibits to this Agreement, constitute the entire agreement among the parties
with regard to the sale of the Assets, and supersede all prior agreements,
understandings, inducements or conditions, express or implied, oral or written,
relating to the subject matter of this Agreement.
11.8 Waiver of Terms . Any of the terms or conditions of this
Agreement may be waived at any time by the party or parties entitled to the
benefit thereof but only by a written notice signed by the party or parties
waiving such terms or conditions.
11.9 Amendment of Agreement . This Agreement may be amended,
supplemented or interpreted at any time only by written instrument duly executed
by each of the parties hereto.
11.10 Severability . If any of the provisions contained in
this Agreement is invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions of this Agreement will not be in
any way impaired.
11.11 Counterparts . This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
11.12 No Third Party Beneficiaries . Nothing in this Agreement
is intended nor will it be construed to give any person, firm, corporation or
other entity, other than the parties hereto and their respective successors and
permitted assigns, any right, remedy or claim under or in respect of this
Agreement or any provisions hereof.
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11.13 Other Rules of Construction . References in this
Agreement to sections, schedules and exhibits are to sections of, and schedules
and exhibits to this Agreement unless otherwise indicated. Words in the singular
include the plural and in the plural include the singular. The word "or" is not
exclusive. The word "including" shall mean including, without limitation. The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their duly authorized signatories, all as of the day and year first
above written.
TEKPAK, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
As Its: President
-----------
NIEMAND INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
As Its: President
------------
GILBRALTAR PACKAGING GROUP, INC.
By: /s/ Xxxx X. Xxxxx
As Its: Executive Vice President
---------------------------
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