ASSET PURCHASE AGREEMENT
Providing for the purchase of certain assets of
UNIFLOW CORPORATION
("Seller")
By
HORIZON TECHNOLOGY L.L.C.
("Buyer")
February 5, 1998
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TABLE OF CONTENTS
ARTICLE 1 - PURCHASE AND SALE OF ASSETS
1.1 Agreement to Purchase and Sell Assets
1.2 Purchase Consideration
1.3 Assumed Liabilities
1.4 Allocation of Purchase Price
ARTICLE 2 - CLOSING
2.1 Place and Date of Closing
2.2 Deliveries at Closing
2.3 Conditions to Buyer's Closing Obligations
2.4 Conditions to Seller's Closing Obligations
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF SELLERS
3.1 Seller's Organization and Good Standing
3.2 Enforceability
3.3 No Conflict with Other Instruments or Proceedings
3.4 Personal Property
3.5 Contracts
3.6 Brokers
3.7 Accuracy of Statements
ARTICLE 4 - BUYER'S REPRESENTATIONS AND WARRANTIES
4.1 Buyer's Organization and Good Standing
4.2 Enforceability
4.3 No Conflict with Other Instruments or Proceedings
4.4 Brokers
ARTICLE 5 - COVENANTS
5.1 Conduct of Business Pending the Closing
5.2 Pre-Closing Access
5.3 Disclosure of Breaches
5.4 Consents
5.5 Publicity
5.6 Further Assurances
5.7 Post Closing Access and Removal
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ARTICLE 6 - INDEMNIFICATION
6.1 Indemnity
6.2 Indemnity Period
ARTICLE 7 - TERMINATION
7.1 Termination Events
7.2 Termination Procedure
7.3 Effect of Termination and Breach of Agreement
ARTICLE 8 - GENERAL
8.1 Risk of Loss
8.2 Survival of Representations, Warranties, Covenants,
and Indemnities
8.3 Confidentiality
8.4 Assignment and Benefits
8.5 Notices
8.6 Expenses
8.7 Entire Agreement
8.8 Amendments and Waivers
8.9 No Third-Party Beneficiaries
8.10 Severability
8.11 Headings
8.12 Governing Law
8.13 Construction
8.14 Counterparts
8.15 Tooling Supply
SCHEDULES AND EXHIBITS
Schedule 1.1(a) Equipment
Schedule 1.1(b) FX Business
Exhibit 1.2(b) Short Term Note
Exhibit 1.2(c) Royalty Agreement
Schedule 3.5 Contracts
Schedule 8.3 Confidentiality Agreement
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made as of
February 5, 1998, by HORIZON TECHNOLOGY, L.L.C., a Michigan limited liability
company ("Buyer"), and UNIFLOW CORPORATION, a Michigan corporation
("Seller").
Seller desires to sell to Buyer, certain assets and business, on the
terms and subject to the conditions set forth in this Agreement.
ARTICLE 1 PURCHASE AND SALE OF ASSETS
1.1 Agreement to Purchase and Sell Assets. On the terms and
subject to the conditions of this Agreement, Buyer shall purchase and acquire
from Seller, and Seller shall sell, convey, assign, transfer, and deliver to
Buyer as of the Closing Date, certain tangible and intangible assets of
Seller, as described below ("Purchased Assets"):
(a) Equipment. National FX85 Coldformer and related items
as more fully described in Schedule 1.1(a), to be attached prior to Closing,
together with, to the extent transferable, any express and implied warranties
by the manufacturer of those items, and all available maintenance records,
brochures, catalogues, and other documents relating to those items or to the
installation or functioning of those items.
(b) FX Business. Subject to obtaining any necessary
third-party consents, all of Seller's right, title, benefit, and interest in
and to the FX Business as more fully described in Schedule 1.1(b), to be
attached prior to Closing.
(c) Records. Subject to Buyer's obligation to retain and
xxxxx Xxxxxxx' reasonable access, all product information, product drawings,
production documentation, material specifications, equipment lists, formulae,
specifications, drawings, plans, reports, data, notes, correspondence, and
other records and documents concerning the FX Business in Seller's
possession.
1.2 Purchase Condition. As consideration for the transfer of
Purchased Assets to Buyer and Seller's other covenants in this Agreement,
Buyer shall pay to Seller the following (the "Purchase Price"):
(a) Cash Payment. Subject to adjustments as provided below,
Buyer shall pay to Seller at Closing Two Million Five Hundred Thousand
Dollars ($2,500,000) in immediately available funds (the "Cash Payment") less
any xxxxxxx money deposit paid by Buyer.
(b) Short-Term Note. Buyer shall deliver to Seller at
Closing Buyer's nonnegotiable, nonassignable promissory note in the principal
amount of Seven Hundred Thousand Dollars ($700,000), non-interest bearing,
payable in sixty equal monthly payments of Eleven Thousand Six-hundred
Sixty-six Dollars and Sixty-seven Cents ($11,666.67) each beginning thirty
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(30) days after the Closing Date and in each succeeding month thereafter
until fully paid (the "Short- Term Note"). The short-term Note shall be in
the form of Exhibit 1.2(b), to be attached prior to Closing.
(c) Royalty Agreement. Buyer shall deliver to Seller at
Closing a Royalty Agreement (the "Royalty Agreement") providing for fixed
royalty payments of two percent (2%) of net sales collected by Buyer with
respect to the FX Business, payable monthly for the life of the part or any
modification thereof. The Royalty Agreement shall be in the form of Exhibit
1.2(c) to be attached prior to Closing. Further, Buyer agrees to supply
Seller's requirements for starter motor shafts (approximately 140,000 -
150,000 pieces monthly) for the continuing term of the Delco Remy purchase
order, at a per unit price of $.485 (FOB shipping point) pursuant to this
Agreement and Seller's standard purchase order terms and conditions, with
price adjustments as necessary to reflect material cost increases. Seller
further agrees that any future sale of the machining from the FX Business
will be conditioned upon the machining purchaser agreeing to buy the starter
motor shafts exclusively from Buyer.
(d) Xxxxxxx Money Deposit. In order to evidence Buyer's
good faith upon execution of this Agreement, Buyer shall pay Seller an
xxxxxxx money deposit of fifty thousand dollars ($50,000). This deposit will
be applied against the purchase consideration at Closing; otherwise, the
deposit shall be distributed pursuant to Section 7.2.
1.3 Assumed Liabilities. At the Closing, Buyer shall assume and
agree to pay, perform, and discharge, when due, only the following
liabilities and obligations of Seller (collectively, the "Assumed
Liabilities"):
(a) Contract Liabilities. The liabilities and obligations
of Seller with respect to the FX Business, such as purchase orders, sales
agreements and supply agreements, provided such agreements have been attached
hereto as Schedule 3.5 and have been fully assigned to buyer, with third
party consents or other arrangements satisfactory to Buyer.
1.4 Allocation of Purchase Price. Prior to the Closing, and as a
condition of, Buyer and Seller shall mutually agree to a Certificate of
Allocation detailing the allocation of the Purchase Price among the Purchased
Assets and Seller's other covenants set forth in this Agreement.
ARTICLE 2 CLOSING
2.1 Place and Date of Closing. Subject to fulfillment or waiver
of the conditions precedent set forth in this Agreement, the purchase and
sale contemplated by this Agreement (the "Closing"),shall take place at the
offices of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx, at 2 p.m. local time on March
24, 1998, or at any other place time, and date mutually agreeable to the
parties, (the "Closing Date"). The Closing shall be deemed to be effective
upon the close of business on the Closing Date.
2.2 Deliveries at Closing.
(a) Buyer's Deliveries. At or before the Closing, Buyer
shall execute and/or deliver, or cause to be executed and/or delivered, to
Seller (i) the Cash Payment; (ii) the Short Term Note, (iii) the Royalty
Agreement, (iv) written instruments or agreements, reasonably acceptable to
Seller, that provides for Buyer's assumption of the Assumed Liabilities; (v)
certified copies
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of resolutions of Buyer's directors, reasonably acceptable to Seller, that
provides for Buyer's directors, reasonably acceptable to Seller, authorizing
the consummation of the transactions contemplated by this Agreement, (vi)
good standing certificates for Buyer from Michigan, (vii) certificates from a
duly authorized officer of Buyer certifying that (A) the representations and
warranties of Buyer contained in this Agreement are true and correct in all
material respects as of the Closing Date as though made on and as of that
date, (B) no condition has occurred or is continuing or will result from the
execution and delivery of this Agreement that constitutes a material breach
of this Agreement, and (C) Buyer has, in all material respects, performed (or
Seller has waived) all of Buyer's obligations and complied with all of
Buyer's covenants set forth in this Agreement to be performed and complied
with before or on the Closing; and (viii) any and all other agreements,
certificates, instruments, and other documents required of Buyer under this
Agreement.
(b) Sellers' Deliveries. At or before the closing, Seller
shall execute and/or deliver, or cause to be executed and/or delivered, to
Buyer (i) bills of sale, assignments, and other instruments of conveyance,
reasonably acceptable to Buyer, that shall be sufficient to transfer clear
title to the Purchased Assets to Buyer, (ii) written consents of third
parties, if necessary, with respect to the transfer of the Purchased Assets
to Buyer; (iii) certified copies of resolutions of Seller's directors,
reasonably acceptable to Buyer; authorizing the consummation of the
transactions contemplated by this Agreement; (iv) good standing certificates
for Seller from Michigan; (v) copies of all documents evidencing other
necessary corporate or other action and governmental approvals, if any, with
respect to this Agreement and the transactions contemplated by this
Agreement,ythat Buyer reasonably requests; (vi) certificates from a duly
authorized officer of Seller certifying that (A) the representations and
warranties of Seller contained in the Agreement are true and correct in all
material respects as of the Closing Date as though made on and as of that
date, (B) no condition has occurred or is continuing or will result from the
execution and delivery of this Agreement that constitutes a material breach
of this Agreement, and (C) Seller has, in all material respects, performed
all of Seller's covenants set forth in this Agreement to be performed and
complied with on or before the Closing; (vii) all records and other documents
included in the Purchased Assets; (viii) any and all other agreements,
certificates, instruments, and other documents required of Seller under this
Agreement.
(c) Further Actions. Buyer and Seller shall take all
further actions and execute and deliver any additional agreements,
certificates, instruments, and other documents on or after the Closing as
Buyer or Seller shall deem reasonably necessary to effectuate the
transactions contemplated by this Agreement.
2.3 Conditions to Buyer's Closing Obligations. Notwithstanding
anything to the contrary contained in this Agreement, Buyer's closing
obligations under this Agreement are, except to the extent expressly waived
in writing by Buyer, subject to Buyer's satisfaction at or before the
Closing, of all of the following conditions:
(a) Representations and Warranties. Each of the
representations and warranties of Seller contained in this Agreement shall be
true and correct in all material respects when made, and shall be true and
correct in all material respects as of the Closing Date, with the same force
an effect as if made again as of the Closing Date.
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(b) Performance. Seller shall have performed and complied
in all material respects with all agreements and conditions required by this
Agreement to be performed or complied with by Seller at or before the
Closing, including all bills of sale, assignments, and other documents
required by this Agreement to be delivered by Seller at the Closing, all
reasonably acceptable to Buyer.
(c) Closing Certificates. Buyer shall have received
certificates reasonably acceptable to Buyer, signed by Seller and dated as of
the Closing Date, to the effect that all representations, warranties, and
covenants made in this Agreement by Seller are on the Closing Date true and
correct in all material aspects and that Seller has performed in all material
respects the obligations, agreements, and covenants undertaken by it in this
Agreement to be performed on or before the Closing Date.
(d) No Material Adverse Change. Except as contemplated by
this Agreement, there shall have been no material adverse change in the
condition of the Purchased Assets, from the date of this Agreement to the
Closing Date.
(e) Necessary Consents and Notices. All consents by third
parties to the assignment of any contracts that are necessary for the
consummation of the transactions contemplated by this Agreement shall have
been received in writing and shall be in full force and effect.
(f) Release of Claims. Any liens on Purchased Assets shall
have been released by Seller's obligees.
(g) Buyer's Examination. Buyer shall be satisfied with the
results of Buyer's examination of the Purchased Assets and the FX Business.
2.4 Conditions to Seller's Closing Obligations. Notwithstanding
anything to the contrary contained in this Agreement, Seller's closing
obligations under this Agreement are, except to the extent expressly waived
by Seller, subject to Seller's satisfaction at or before the Closing, of all
the following conditions:
(a) Representations and Warranties. Each of the
representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects when made, and shall be true and
correct in all material aspects as of the Closing Date, with the same force
and effect as if made again as of the Closing Date.
(b) Performance. Buyer shall have performed and complied in
all material respects with all agreements and conditions required by this
Agreement to be performed or complied with by Buyer at or before the Closing,
including payment of the Purchase Price and delivery of the assumption
documents and other documents required by this Agreement to be delivered by
Buyer at the Closing, all reasonably acceptable to Seller.
(c) Closing Certificate. Seller shall have received a
certificate reasonable acceptable to Seller, signed by Buyer and dated as of
the Closing Date, to the effect that all representations and warranties in
this Agreement are true and correct in all material respects as if made again
on the Closing Date and that Buyer has performed in all material respects the
obligations, agreements, and covenants undertaken by Buyer in this Agreement
to be performed on or before the Closing Date.
(d) Deliveries by Buyer. Buyer shall have delivered, to the
reasonable satisfaction of Seller, the other items listed above in this
Article.
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ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Seller Organization and Good Standing. Seller is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Michigan.
3.2 Enforceability. Seller has full capacity, power, and
authority to enter into this Agreement and to carry out the transactions
contemplated by this Agreement, and this Agreement is binding upon Seller and
is enforceable against Seller in accordance with the terms of this Agreement.
3.3 No Conflict with Other Instruments or Proceedings. The
execution and delivery of this Agreement and consummation of the transactions
contemplated by this Agreement will not (a) result in the breach of any of
the terms or conditions of, or constitute a default under Seller's corporate
charter or bylaws or any contract, agreement, lease, commitment, indentury,
mortgage, pledge, note, bond, license, or other instrument or obligation to
which Seller is now a party or by which either Seller may be bound or
affected; (b) violate any law, rule, or regulation of any administrative
agency or governmental body or any order, writ, injunction, or decree of any
court, administrative agency, or governmental body; (c) result in the
imposition of any lien or encumbrance on any of the Purchased Assets; or (d)
give rise to any right of first refusal or similar right to any third party
with respect to any interest in any of the Purchased Assets.
3.4 Personal Property. Seller has good and marketable title to
the Purchased Assets, subject only to security interests which shall be
discharged at Closing. All personal property included in the Purchased Assets
will be in the possession of Seller on the Closing Date. As of the Closing
Date, the Purchased Assets shall be in good operating condition, and Seller
is aware of no material defects therein, reasonable wear and tear excepted.
Nonetheless, Buyer shall accept the Purchased Assets in an "as is" condition.
3.5 Contracts. Prior to Closing, Schedule 3.5 shall detail all
contracts to which Seller is a party and which affect the FX Business or the
Purchased Assets. To Seller's knowledge, all of the contracts are in effect,
and are valid, binding and enforceable in accordance with their respective
terms.
3.6 Information. Information (not including projections)
provided by Seller to Buyer regarding FX Business done by Seller, including
production, shipping, quality, returns, and engineering data shall be
materially accurate and complete.
3.7 Brokers. Seller has not retained or employed any broker,
finder, investment banker, or other person, or taken any action, or entered
into any agreement or understanding that would give any broker, finder,
investment banker, or other person any valid claim against Buyer and Seller
for a commission, brokerage fee, or other compensation.
3.8 Accuracy of Statements. No representation or warranty made
by Seller in this Agreement contains or will contain any untrue statement of
a material fact. Nonetheless, any financial projections submitted to Buyer by
Seller were for illustration purposes and based upon several assumptions
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regarding operational efficiencies, successful developments, projected costs
and potential commitments of customers. Buyer should not and has not
indicated that it will not rely on these projections; rather, Buyer shall
perform its own customer investigation and due diligence analysis with
respect to the FX Business and its possible benefits. The representations and
warranties of Seller shall be deemed to be made as of the date of this
Agreement and again as of the Closing Date.
ARTICLE 4 BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to Seller as follows:
4.1 Buyer's Organization and Good Standing. Buyer is a limited
liability company duly organized, validly existing, and in good standing
under the laws of the State of Michigan.
4.2 Enforceability. Buyer has full capacity, power, and
authority to enter into this Agreement and to carry out the transactions
contemplated by this Agreement, and this Agreement is binding upon Buyer and
is enforceable against Buyer in accordance with the terms of this Agreement.
4.3 No Conflict with Other Instruments or Proceedings. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement will not (a) result in the breach
of any of the terms or conditions of, or constitute a default, under Buyer's
corporate charter or bylaws or any contract, agreement, lease, commitment,
indenture, mortgage, pledge, note, bond, license, or other instrument or
obligation to which Buyer is now a party or by which Buyer may be bound or
affected or (b) violate any law, rule, or regulation of any administrative
agency or governmental body or any order, writ, injunction, or decree of any
court, administrative agency, or governmental body. All consents, approvals,
or authorizations of, or declarations, filings, or registrations with, any
third parties or governmental or regulatory authorities required of Buyer in
connection with the execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated by this Agreement will
be obtained or made, as applicable, by Buyer before the Closing Date.
4.4 Brokers. Buyer has not retained or employed any broker,
finder, investment banker, or other person any valid claim against Buyer or
Seller for a commission, brokerage fee or other compensation.
ARTICLE 5 COVENANTS
5.1 Conduct of Business Pending the Closing. During the period
from the date of this Agreement to the Closing Date, Sellers shall conduct
the FX Business in the ordinary and usual course. Further, Seller will
arrange meetings with Seller, Buyer and FX Business customers and suppliers
to confirm current and potential part volume, pricing, delivery and quality
requirements, among other things.
5.2 Pre-Closing Access. During the period from the date of this
Agreement to the Closing Date, Seller shall cause Buyer and Buyer's
designated representatives and agents to be given access to the records and
production facility of Seller, for the purpose of conducting an investigation
of the FX Business and the Purchased Assets; provided, however, that the
investigation shall be conducted in a manner that does not unreasonably
interfere with Seller's normal operations. Buyer, and Buyer's representatives
and agents, will
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use all reasonable commercial efforts to maintain in strict confidence all
documents and information obtained by Buyer or Buyer's designated
representatives and agents during Buyer's investigation and shall use the
information solely for the purpose of evaluating and completing the
transaction described in this Agreement.
5.3 Disclosure of Breaches. Buyer and Seller shall promptly
notify the other of the occurrence of any event or condition that could
reasonably be expected to adversely affect the ability of any party to
perform fully the transactions contemplated by this Agreement or to make that
party's respective representations and warranties set forth in this Agreement
not be materially true and correct at the Closing.
5.4 Consents. Each party to this Agreement will use all
reasonable efforts to obtain all authorizations and consents of third parties
that may or become necessary for that party's execution and delivery of, and
the performance of that party's obligations pursuant to, this Agreement, and
will cooperate fully with each other party in promptly seeking to obtain all
those authorizations, consents, orders, and approvals.,
5.5 Publicity. Buyer and Seller shall simultaneously make an
announcement regarding the transactions contemplated by this Agreement in a
mutually agreed upon form. After the announcement, during the period form the
date or this Agreement to the Closing Date, neither Buyer nor Seller shall
issue any press release or otherwise make any public statements or
announcement concerning this Agreement or the transactions contemplated by
this Agreement without the prior written consent of the other parties other
than to customers and suppliers in the ordinary course of business.
Notwithstanding the foregoing, neither Buyer nor Seller shall be prevented at
any time from furnishing any required information to any governmental agency
or authority or from complying with that party's legal obligations nor
prevented from publishing any information that is publicly available as a
result.
5.6 Further Assurances. Buyer and Seller shall execute all
documents and take all further actions as may be reasonably required or
desirable to carry out the provisions of this Agreement and the transactions
contemplated by this Agreement at or after the Closing to evidence the
consummation of the transactions contemplated pursuant to this Agreement.
Upon the terms and subject to the conditions of this Agreement, Buyer and
Seller shall take all actions and do, or cause to be done, all other things
necessary, proper, or advisable to consummate and make effective as promptly
as practicable the transactions contemplated by this Agreement and obtain in
a timely manner all necessary waivers, consents, and approvals. Buyer shall
purchase any raw materials with acceptable quality as determined by Buyer,
related to the FX Business, at Seller's delivered cost.
5.7 Post Closing Access and Removal. Buyer, at its sole expense,
will relocate the Purchased Assets on or about March 30, 1998. Seller will
provide Buyer with access to the Purchased Assets after Closing for
production purposes and removal; provided if Buyer remains in Seller's
premises after April 10, 1998, the parties shall later enter into a lease
with standard terms and indemnifications and providing for reimbursement of
direct expenses; between the time of closing and the time the parties enter
into any lease, Buyer will reimburse Seller for direct expenses incurred
related to the operation of the purchased assets until such removal from
Seller's premises.
ARTICLE 6 INDEMNIFICATION
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6.1 Indemnity. Seller shall defend, indemnify and hold harmless
Buyer against and with respect to any and all loss, cost, damage, liability,
obligation, claim or expense (including reasonable professional fees and
similar expenses - collectively, the "Indemnified Losses") arising in
connection with any material misrepresentation, breach, or nonperformance of
any representation, warranty, covenant, undertaking, condition, or agreement
made or to be performed by Seller under this Agreement.
6.2 Indemnification Period. Buyer's right to seek
indemnification under this Article shall survive for a period of two (2)
years from the Closing Date (the "Indemnity Period").
ARTICLE 7 TERMINATION
7.1 Terminated Events. This Agreement may, by notice given
before or at the Closing, be terminated:
(a) by either Buyer or Seller if a material breach of any
provision of this Agreement has been committed by the other party and the
breach has not been waived;
(b) by Buyer if any of the conditions precedent to Buyer's
closing obligations have not been satisfied as of the Closing Date or if
satisfaction of a condition is or becomes impossible (other than through the
failure of Buyer to comply with Buyer's obligations under this Agreement) and
Buyer has not waived the condition on or before the Closing Date;
(c) by Seller if any of the conditions precedent to
Seller's closing obligations have not been satisfied as of the Closing Date
or if satisfaction of a condition is or becomes impossible (other than
through failure of Seller to comply with Seller's obligations under this
Agreement) and Seller have not waived the condition on or before the Closing
Date;
(d) by mutual consent of Buyer and Seller; or
(e) by either Buyer or Seller if the Closing has not
occurred (other than through the failure of any party seeking to terminate
this Agreement to comply fully with that party's obligations under this
Agreement) on or before March 15, 1998, or any later date as the parties may
agree.
7.2 Notice. The party terminating shall provide written notice
thereof to the other, specifying the reason(s) for the termination.
7.3 Effect of Termination and Breach of Agreement. If this
Agreement is terminated other than pursuant to a breach by Seller or by
Buyer, the parties shall have no further duties, obligations, or rights to or
against each other except for the provisions of this Agreement relating to
confidentiality and use of confidential or proprietary information and the
xxxxxxx money deposit shall be promptly refunded to Buyer. If this Agreement
is terminated pursuant to a breach of this Agreement by Buyer, Seller shall
have the right to retain the xxxxxxx money deposit and may also pursue any
additional rights and remedies as Seller may have, at law or in equity,
against Buyer with respect to the breach. If this Agreement is terminated
pursuant to a breach of this Agreement by Seller, Buyeryshall have the right
to pursue any rights and remedies as Buyer may have, at law or in equity,
against Seller with respect to the breach.
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ARTICLE 8 GENERAL
8.1 Risk of Loss. The risk or loss of destruction of, or damage
to, the Purchased Assets (a "Loss"), shall be on Seller at all times on or
before the Closing Date. Seller shall take all reasonable steps consistent
with Seller's normal business practices to repair, replace, and restore the
Purchased Assets as soon as possible after any Loss. All insurance proceeds
received by Seller with respect to any Loss shall be applied to replacement,
restoration, or repair. Any obligation of Seller to repair, replace, and
restore the Purchased Assets shall terminate on the Closing Date or upon the
termination of this Agreement. Notwithstanding any other provision of this
Section, Seller shall be entitled to retain any insurance proceeds to the
extent Seller has previously expended amounts to repair, replace, or restore
a Loss to the Purchased Assets on or before the Closing Date. Should Seller,
due to a Loss, not be able to deliver Purchased Assets on the Closing Date in
condition acceptable to Buyer, this Agreement shall terminate, and Seller
shall promptly return the xxxxxxx money to Buyer.
8.2 Survival of Representations, Warranties, Covenants, and
Indemnities. Subject to the limitations of the Indemnity Period described
above, all representations, warranties, covenants, and indemnities made by
any party to this Agreement shall survive the Closing and any investigation
at any time made by or on behalf of any party before or after the Closing for
a period of three (3) years.
8.3 Confidentiality. Buyer shall remain subject to the terms of
a Confidentiality Agreement previously executed by Buyer, attached hereto.
(Schedule 8.3), except Buyer may make employment offers to Seller's employees
as permitted by Seller.
8.4 Assignment and Benefits. No party to this Agreement may
assign or transfer this Agreement, either directly or indirectly, by merger,
liquidation, consolidation, sale of stock, change of control, operation of
law, or other means, without the prior written consent of all parties to this
Agreement. This Agreement shall be binding upon, inure to the benefit of, and
be enforceable by and against the respective successors and permitted assigns
of each of the parties to this Agreement.
8.5 Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed
to have been duly given when delivered, sent by telecopy, or sent by express
delivery service with charges prepaid and receipt requested, or, if those
services are not reasonably available, mailed (postage prepaid) by certified
mail with return receipt requested:
To Buyer at: With a copy to:
Xxxxxxx X. Xxxx, CEO A. Xxxxx Xxxxxxxx
Horizon Technology Group Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
20400 Superior Road 0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000 Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
To Seller at: With a copy to:
Xxxxxx X. Xxxxxxxx, Chairman Xxxxxx Xxxxx Esq.
Uniflow Corporation Xxxxx and Xxxxx
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00000 Xxxx Xxxxx 0000 X. Xxx Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000 Xxxx, Xxxxxxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Any party may change that party's address by prior written
notice to the other parties.
8.6 Expenses. Each party to this Agreement shall pay that
party's respective expenses, costs, and fees (including professional fees)
incurred in connection with the negotiation, preparation, execution, and
delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement.
8.7 Entire Agreement. This Agreement, and the exhibits and
schedules to this Agreement (which are incorporated in this Agreement by
reference), and the agreements referred to in this Agreement, contains the
entire agreement and understanding of the parties and supersede all prior
agreements, negotiations, arrangements, and understandings related to the
subject matter of this Agreement.
8.8 Amendments and Waivers. This Agreement may be amended,
modified, superseded, or canceled, and any of the terms, covenants,
representations, warranties, or conditions of this Agreement may be waived,
only by a written instrument signed by each party to this Agreement, or, in
the case of a waiver, by or on behalf of the party waiving compliance. The
failure of any party at any time to require performance of any provision in
this Agreement shall not affect the right of that party at a later time to
enforce that or any other provision. No waiver by any party of any condition,
or of any breach of any term, covenant, representation, or warranty contained
in this Agreement, in any one or more instances, shall be deemed to be a
further or continuing waiver of any condition or of any breach of any other
term, covenant, representation, or warranty.
8.9 No Third-Party Beneficiaries. The provisions of this
Agreement are solely between and for the benefit of the respective parties to
this Agreement, and do not inure to the benefit of, or confer rights upon any
third party, including any employee of Buyer or Seller.
8.10 Severability. Except as otherwise specifically provided in
this Agreement, this Agreement shall be interpreted in all respects as if any
invalid or unenforceable provision were omitted from this Agreement. All
provisions of this Agreement shall be enforced to the full extent permitted
by law.
8.11 Headings. The headings of the sections and subsections of
this Agreement have been inserted for convenience of reference only and shall
not restrict or modify any of the terms or provisions of this Agreement.
8.12 Governing Law. This Agreement shall be governed by, and
interpreted and enforced in accordance with, the laws of the State of
Michigan, as applied to contracts made and to be performed in that state,
without regard to conflicts of law principles.
8.13 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. Unless otherwise expressly provided, the words "include" and
"including" (and variations of those words) whenever used in this Agreement
shall not limit the preceding words or terms.
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8.14 Counterparts. This Agreement may be signed in counterparts,
each of which shall be deemed to be an original, and the counterparts shall
together constitute one complete document. Counterparts may be signed and
delivered by a party by fax, which shall be binding on that party when faxed,
with one or more copies signed in original to be later delivered by express
delivery service or mail.
8.15 Tooling Supply. Buyer will enter into an agreement with an
affiliate of Seller to purchase its perishable tooling requirements for the
FX Business. This agreement will be for a term of five (5) years and will be
conditioned upon the Seller's affiliate meeting competitive pricing, quality
and delivery standards.
Signed as of the date first written above.
HORIZON TECHNOLOGY, L.L.C. UNIFLOW CORPORATION
By/s/ Xxxxxxx X. Xxxx By/s/ Xxxxxx X. Xxxxxxxx
------------------------------ --------------------------------
Xxxxxxx X. Xxxx Xxxxxx X. Xxxxxxxx
Chief Executive Officer Chairman
"Buyer" "Seller"
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