ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into on November
4, 1999, by and between XXX MARKETING, INC. ("Buyer"), a Delaware
corporation with its principal place of business in Tampa, Florida and
SOCIETE FINANCIERE D'ENTREPOSAGE ET DE COMMERCE INTERNATIONAL DE L'ALCOOL,
S.A. ("Seller"), a French company with its principal place of business in
Paris, France. (Buyer and Seller are referred to collectively herein as the
"Parties" and each is referred to as a "Party.")
A. Seller is a member of the Xxxxx Xxxxxxx Group of companies, of which
the ultimate parent is S.A. Xxxxx Xxxxxxx & Cie of Paris. Through
Sofecia USA, a wholly-owned and unincorporated operating division of
Seller, Seller owns, manages and operates a business engaged in the
production and distribution in the United States of various
formulations of ethyl alcohol ("ethanol") for industrial use and of
grain neutral spirits (an ethanol formulation) for beverage use (the
"Business"). Sofecia USA manages the Business from leased offices
located in Norwalk, Connecticut (the "Office"), and receives,
processes, stores and ships its products at and from a distilled
spirits plant ("DSP") licensed by the federal Bureau of Alcohol,
Tobacco and Firearms (the "BATF") at the terminal and storage facility
operated by Stolthaven Perth Amboy Inc. ("Stolthaven") in Perth Amboy,
New Jersey (the "Terminal").
B. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, as a going business, substantially all of the tangible and
intangible assets used in the operation of the Business.
NOW, THEREFORE, in consideration of the mutual promises and representations
contained herein, the Parties agree as follows:
1. SALE AND PURCHASE OF THE BUSINESS.
(a) ASSETS TO BE ACQUIRED BY BUYER. Subject to the terms and conditions set
forth herein, on the Closing Date (as defined in section 3 below) Seller
shall sell to Buyer, and Buyer shall purchase from Seller, the following
property and assets of the Business (collectively the "Sale Assets"):
(i) All inventory of ethanol, chemicals and denaturants stored at or
in transit to the Terminal as of the Closing Date, and any
furnishings, lab equipment, supplies and other tangible property
(having negligible value and, by agreement of the Parties, not
itemized herein) located at the Terminal for use in connection with
the Business
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and owned by Seller as of the Closing Date, along with any related
warranties, regulatory materials and other documentation;
(ii) All accounts receivable in connection with the Business as of the Closing
Date (the "Receivables");
(iii) Customer and supplier lists and correspondence, marketing records,
accounts of purchases and sales, other business records, promotional materials,
formula lists and approvals from the BATF, other regulatory materials and
records and like items of goodwill (in whatever format, including without
limitation computer files and records) used or acquired in the conduct of the
Business during the five years prior to the Closing Date;
(iv) Any items among the furnishings, equipment and supplies located in the
Office and itemized in Exhibit l(a)(iv) (the "Office Property") that the Buyer
shall, by December 31, 1999, elect to purchase, and the BMW automobile used by
Xxxxxx Chereau, along with related warranties, instructions and other
documentation; and
(v) Service and storage agreements with Stolthaven and amendments thereto
(collectively, the "Terminal Agreement"), and customer orders that are unfilled
or partly filled as of the Closing Date and other contracts (the "Contracts"),
as itemized in Exhibit 1(a)(v).
Buyer will assume no liabilities of Seller, except in connection with the
Terminal Agreement and the Contracts.
(b) Assets excluded from sale. The following assets owned by Seller are excluded
from the sale to Buyer:
(i) Any and all corporate names, trademarks and trade names used by Seller in
connection with the conduct of the Business;
(ii) All property and assets owned by Seller not used in connection with the
conduct of the Business;
(iii) Cash, bank accounts and deposits, insurance policies and tax refunds and
credits in connection with taxes paid prior to the Closing Date; and
(iv) The Office lease and any office equipment leases.
2. THE PURCHASE PRICE.
(a) Buyer's payment at Closing. On the Closing Date, Buyer shall pay Seller the
following amounts:
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(i) Three hundred thousand dollars ($300,000);
(ii) An estimated amount for the Inventory calculated in accordance with
subsection 2(b) below;
(iii) An estimated amount for the Receivables calculated in accordance with
subsection 2(c) below; and
(iv) Nineteen thousand dollars ($19,000) for the BMW automobile.
Payment shall be wire transferred to the account of Sofecia S.A., account number
0000000-0001-00, at Credit Lyonnais, New York City.
(b) Valuation of Inventory.
(i) Laboratory Service Inc. shall measure and sample the Inventory at the close
of business on the Closing Date, and shall thereafter furnish the Parties with a
complete report of the quantities and formulations that comprise the Inventory.
(ii) Attached as Exhibit 2(b)(ii) are schedules estimating ethanol and
denaturant Inventory volumes as of the Closing Date and Seller's direct costs
for that Inventory. As so estimated, the Inventory includes some ethanol that
will be more than 90 days old as of the Closing Date (the "Older Product"). The
Parties agree that, with respect to such Older Product, Buyer will pay Seller,
per US wine gallon: (x) $1.32 for 190 proof synthetic ethanol, (y) $1.41 for 200
proof synthetic ethanol and (z) $1.50 (i.e. Seller's cost) for 200 proof
fermentation ethanol. Buyer will pay for the rest of the Inventory at Seller's
cost.
(iii) Except as provided with regard to Older Product in the preceding clause,
Buyer shall pay Seller at Closing based on the Exhibit 2(b)(ii) schedules, with
final settlement in accordance with subsection 2(d) below.
(c) Valuation of Receivables. Buyer shall pay for the Receivables at full value
as of the Closing Date discounted by 1.25 %. Attached as Exhibit 2(c) is
Seller's tentative list and estimate of the undiscounted value of the
Receivables as of the Closing Date. At Closing Buyer shall pay Seller 95 % of
this estimated value, with final settlement in accordance with subsection 2(d).
(d) Final Settlement for Inventory and Receivables. Within five business days
after the Closing, the Parties shall agree on the final accountings of the
Inventory and the Receivables (the latter discounted by 1. 25 %) as of the
Closing Date, and Seller will invoice Buyer for the net balance due or refund to
Buyer any net overpayment. Buyer will wire transfer any balance due Seller
within three business days after receipt of Seller's invoice.
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(e) Post-Closing Purchases.
(i) If Buyer hires Xxxx Xxxxxxx, Seller's account manager, then, within five
business days after his date of hire, Buyer will pay Seller sixteen thousand
dollars ($16,000) by wire transfer to the bank account identified in subsection
2(a), and Seller will transfer ownership to Buyer of the Chrysler automobile
used by Xx. Xxxxxxx.
(ii) By December 31, 1999, Buyer shall notify Seller which (if any) of the items
of Office Property Buyer has elected to purchase. The Parties shall agree upon
the prices to be paid for such items, and Buyer shall make payment to Seller
promptly thereafter, by wire transfer to the bank account identified in
subsection 2(a).
(f) Post-Closing adjustment for Receivables. If any of the Receivables remain
unpaid 90 days after the Closing, Seller shall refund to Buyer the amount paid
for such Receivables, and Buyer shall assign them back to Seller.
(g) Percentage of future profits. Within 90 days after the end of each of the
first five calendar years ("Accounting Years") after the Closing Date (the first
such year to commence on January 1, 2000), Buyer will pay Seller the greater of
fifty thousand dollars ($50,000) or twenty-five percent (25 %) of the net
profits during the previous Accounting Year attributable to Buyer's operation of
the Business as characterized in clause 2(g)(ii) below. For the limited purpose
of determining profits under this subsection 2(g):
(i) "Seller's Customers" shall consist of: (x) Seller's current customers, (y)
firms which have been Seller's customers during the five years prior to the
Closing Date and (z) firms which were actively solicited by Seller during the 12
months prior to the Closing Date, all as set forth in Exhibit 2(g)(i).
(ii) Except as provided in the following clause 2(g)(iii), the Business shall be
deemed to consist of: (x) all sales of product shipped from the Stolthaven DSP
to any of Seller's Customers, (y) all sales of product shipped directly from
Seller's current key suppliers Union Carbide Corporation and Xxxxxxxx Ethanol
Services, Inc. (and their successors and constituent entities) to any of
Seller's Customers and (z) all sales shipped from any other DSP operated by
Buyer (or an affiliated company) to any of Seller's Customers who had not
purchased ethanol from Buyer during the 12 months prior to the Closing.
(iii) In the event that any of Seller's Customers are also current customers of
Buyer (hereafter "Joint Customers"), then for each of the five Accounting Years,
the sales of ethanol by Buyer (or an affiliated company) to a Joint Customer
shall be allocated to the Business and to Buyer's non-Business operations in the
same ratio as the relative volume of ethanol sales by Buyer and by Seller,
respectively, during 1998
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and the first nine months of 1999. (Thus, for example, if Buyer sold 2,000 and
Sofecia sold 3,000 US wine gallons of ethanol to a Joint Customer from January
1, 1998 through September 30, 1999, and Buyer sells that Joint Customer 6,000 US
wine gallons during any Accounting Year, then 3,600 US wine gallons - 60% of the
sales - shall be allocated to the Business for that Accounting Year.) Attached
as Exhibit 2(g)(iii) is a list of Joint Customers and each party's accounting of
the volume of its own sales, in US wine gallons, to each Joint Customer during
1998 and the first nine months of 1999.
(iv) Net profits shall be equal to net sales proceeds less: (x) the cost of
product, freight and storage, (y) selling, general and administrative expenses
reasonably allocated to the Business in accordance with Buyer's standard
practice up to a maximum of thirteen cents ($0.13) per US wine gallon and (z)
applicable corporate taxes.
(v) At least 21 days prior to its annual payment to Seller, Buyer shall provide
Seller with a written accounting of profits as defined in this subsection 2(g),
and shall give Seller such access to its records as will permit reasonable
verification of the accounting. Any substantial disagreement regarding the
calculation of net profits shall be submitted to an independent accountant
mutually acceptable to the Parties, which shall be bound by such accountant's
determination of the amount properly payable to Seller.
If Buyer should close down the Business prior to December 31, 2004, Buyer shall
nevertheless be obligated to pay Seller a minimum of fifty thousand dollars
($50,000) per Accounting Year, so long as Seller was not, prior to Buyer's
decision to close down the Business, in breach of any of the representations and
warranties or the covenants set forth in sections 4 and 5 of this Agreement.
3. THE CLOSING.
(a) Time and place. The closing hereunder (the "Closing") will take place on
November 4, 1999, at the Xxxxx Xxxxxxx offices located at 00 Xxxxxxxx Xxxx,
Xxxxxx, Xxxxxxxxxxx.
(b) Delivery of instruments. At the Closing:
(i) Upon receipt of Seller's invoice, Buyer shall deliver to Seller a copy of
the transmission to its bank instructing it to pay Seller in accordance with
subsection l(a) above.
(ii) Seller will deliver to Buyer the certificate of title to the BMW
automobile.
(iii) Seller shall have secured and will give Buyer copies of: (y) Stolthaven's
written consent to Seller's assignment to Buyer, and Buyer's assumption, of
Seller's rights
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and obligations under the Terminal Agreement, and (z) the written agreement of
Xxxxxxxx Ethanol Services, Inc. to supply ethanol to Buyer.
(iv) Seller will execute and deliver to Buyer assignments, and Buyer will
execute and deliver to Seller assumption agreements, relative to the Terminal
Agreement and, at Buyer's election, relative to the Contracts.
(v) Each Party will deliver to the other Party such other documents and evidence
as the other Party or its counsel shall reasonably request or as is required by
law.
4. REPRESENTATIONS AND WARRANTIES.
(a) By Seller. Seller, as a material inducement to Buyer to enter into this
Agreement, represents and warrants to Buyer that, upon entering into this
Agreement and as of the Closing Date:
(i) Seller has been duly formed and is validly existing and in good standing
under the laws of the Republic of France, and is qualified to do business in the
states of Connecticut and New Jersey.
(ii) Seller has the corporate power and authority to execute and deliver this
Agreement and to perform Seller's obligations hereunder, is unconditionally
bound by this Agreement, has taken all corporate action required under the laws
of France to authorize the entry into and consummation of this Agreement and has
duly authorized Xxxxx X. Xxxxxxx to sign and execute this Agreement on its
behalf.
(iii) Seller has good, valid and marketable title to the Sale Assets, free and
clear of all liens and encumbrances of any nature.
(iv) Seller's supplier and customer lists and correspondence, marketing records,
accounts of purchases and sales and other business records, as set forth in
clause l(a)(iii) and transferred to Buyer at the Closing, and the financial
extracts shown to Buyer during Buyer's due diligence review, are complete and
correct and have been maintained in accordance with sound business practices.
Seller's accounting of past sales to Joint Customers in Exhibit 2(g)(iii) is
true and correct in all relevant respects.
(v) The Receivables, as tentatively listed and valued in Exhibit 2(c) and
transferred to Buyer at the Closing, represent valid obligations arising from
sales actually made in the ordinary course of business. None of the Receivables
will be more than 90 days old as of the Closing Date.
(vi) All of the Inventory is of a quality usable and salable in the ordinary
course of business.
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(vii) Seller is not in default on any of the Contracts; nor are there any
renegotiations underway of material terms of any of the Contracts.
(viii) Seller's DSP permit is in full force and effect, and Seller has no reason
to anticipate its termination prior to Seller's voluntary withdrawal.
(ix) All taxes have been paid with respect to the Sale Assets and the Business.
(x) Seller has no knowledge of any undisclosed liabilities or material adverse
proceedings that would affect the Business. There are no actions, lawsuits or
proceedings of any kind (including without limitation proceedings asserting
violation of patent or intellectual property rights) pending, or to Seller's
knowledge threatened, against the Sale Assets or against Seller relative to any
of the Sale Assets or the Business. In connection with the sale or delivery of
product by the Business, there are no pending or threatened claims or
liabilities for breach of contract or warranty, express or implied, or for
personal or property damage, nor have there been any such claims or liabilities
during the past three years.
(xi) With respect to the Business, neither Seller nor any US affiliate is in
violation of any federal or state labor, antidiscrimination, workplace safety or
environmental law or regulation, or any law or regulation regarding pension,
401(k) or other retirement programs; nor are there any pending or threatened
claims or orders involving any such matters.
(xii) With respect to its employees, suppliers and customers, Seller is not
aware of any circumstance which it has not disclosed to Buyer that is likely to
have a material adverse effect on the Business.
(xiii) Neither this Agreement nor any transaction contemplated hereby conflicts
with or constitutes a breach of any agreement to which the Seller is a party or
is bound.
(xiv) Seller will be fully responsible for any and all employee benefits
(health, retirement, or otherwise), severance entitlements and rights under any
fringe benefit plan of those employees of the Business not hired by Buyer.
(b) By Buyer. Buyer, as a material inducement to Seller to enter into this
Agreement, represents and warrants to Seller that, upon entering into this
Agreement and as of the Closing Date:
(i) Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
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(ii) Buyer has the corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder, is unconditionally bound by
this Agreement, has taken all corporate action required under the laws of the
State of Delaware to authorize the entry into and consummation of this Agreement
and has duly authorized Xxxxxx X. Xxxxxxx, its President, to sign and execute
this Agreement on its behalf.
(iii) Buyer' s accounting of past sales to Joint Customers in Exhibit 2(g)(iii)
is true and correct in all relevant respects.
(c) Survival. The foregoing representations and warranties shall survive the
Closing for a period of five years after the Closing Date, and thereafter no
claim or action may be made or based on a breach thereof.
5. INDEMNIFICATIONS.
(a) By Seller. Seller shall pay and discharge, without proration or recourse to
Buyer, all present and future debts, liabilities and taxes attributable to
Seller's operation of the Business through the Closing Date. Seller shall
indemnify and hold Buyer (which includes for purposes of this subsection 5(a)
its representatives, shareholders, affiliates and controlling persons), and its
successors and assigns harmless, and shall pay all reasonable legal fees
incurred, for any demands, claims, assessments, losses, damages and costs made
against or incurred by Buyer in connection with Seller's operation of the
Business or arising from or in connection with any breach of any representation
or warranty made by Seller in this Agreement.
(b) By Buyer. Buyer shall indemnify and hold Seller harmless for any demands,
claims, assessments, losses, damages and costs made against or incurred by
Seller in connection with Buyer's operation of the Business after the Closing.
(c) Brokerage fees. Each Party will pay any brokerage or finder's fee it has
incurred or agreed to pay in connection with this Agreement, and will indemnify
and hold the other Party harmless from any claim for such fees.
6. TRANSITION PERIOD. The Parties expect that a transition period (the
"Transition") will be necessary for approximately two months after the Closing.
During the Transition:
(a) DSP permit.
(i) Seller will continue its DSP permit at the Terminal, and allow buyer to
operate the Business at Seller's DSP until Buyer has secured its own DSP. If
Buyer has not obtained its DSP permit by January 15, 2000, then, commencing as
of that date, Buyer shall pay Seller $3,000 a month for the use of Seller's
permit, prorated at the end for any partial month. In no event, however, will
Seller be obligated to maintain the DSP after March 31, 2000.
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(ii) Buyer will indemnify and hold Seller harmless for any losses or claims
incurred as a result of Buyer's use of Seller's DSP, in particular but without
limitation in the event that the BATF draws on Seller's bond during such period.
(b) Supplier and customers. Seller will introduce Buyer to the suppliers,
service providers and customers of the Business and assist in securing their
acceptance of Buyer as successor to Sofecia USA. Seller will promptly seek to
ensure that any customers with unfilled or partially filled orders on the
Closing Date will accept a substitution of Buyer for Seller in connection with
such orders.
(c) The Office. Seller will permit Buyer at no additional cost to use and occupy
the Office (along with employees of Seller) until the expiration of Seller's
lease on December 31,
1999.
(d) Collection of Receivables. To the extent possible, Seller will direct all of
its customers to make payment on Receivables to Buyer, and will at least weekly
endorse over to Buyer any checks payable to Seller and pay Buyer any amounts
wire transferred to Seller's
account.
7. SELLER'S COVENANTS.
(a) Noncompete agreement. For a period of five years after the Closing Date,
Seller shall not, and Seller shall ensure that no company or entity within the
Xxxxx Xxxxxxx Group shall, directly or indirectly, engage or become interested
financially or otherwise in any business similar to or in competition with the
Business in the United States. Seller and its affiliates shall be free to
produce or market ethanol for fuel or beverage use in the United States.
(b) Confidentiality. Seller will maintain the confidentiality of the customer
lists and other records of the Business transferred to Buyer.
(c) Non solicitation agreement. Neither Seller nor any of its affiliates will
induce or solicit any employees of the Business who are hired by Buyer to leave
the employ of Buyer for any reason.
(d) Remedies for breach. Seller acknowledges that the injury suffered by Buyer
as a result of a breach of this section 8 would be irreparable and that an award
of monetary damages would be an inadequate remedy. Consequently, Buyer shall
have the right, in addition to any other remedy, to obtain injunctive relief to
restrain any breach or threatened breach or otherwise to specifically enforce
this section and will not be obligated to post bond or other security in seeking
such relief
8. CONTINUING RELATIONSHIPS. During the five years following the Closing:
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(a) If and when Seller wishes to purchase a cargo of domestically produced
ethanol for export, it will offer Buyer the first opportunity to sell or broker
the sale of the ethanol to Seller.
(b) In the event that Buyer wishes to export a cargo of ethanol, it will offer
Seller the first opportunity to purchase the ethanol.
(c) In the event that Seller wishes to sell a cargo of foreign-produced ethanol
in the United States (subject to the limitations of the preceding section 8), it
will offer Buyer the first opportunity to purchase or market the ethanol.
(d) If Buyer wishes to import foreign ethanol produced by any company other than
SASOL of South Africa, Buyer will offer Seller the first opportunity to sell or
procure the ethanol.
(e) If Seller decides to institute a business involving the production or
marketing of ethanol for beverage use in the United States, Seller will offer
Buyer an opportunity to participate in such business.
9. ARBITRATION; APPLICABLE LAW. Any controversy or claim arising out of or
relating to this Agreement or the interpretation, performance or breach thereof,
shall be settled by binding arbitration held in New York City in accordance with
the Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without reference to its
conflicts of law principles.
10. CONSENT TO JURIDICTION. Seller hereby consents to submit to the jurisdiction
of federal and state courts sitting in New York State for all matters pertaining
to the interpretation and enforcement of this Agreement (other than as ceded to
arbitration), and hereby appoints Xxxxx X. Xxxxxxx, Secretary of Xxxxx Xxxxxxx
Corporation, or her successor in said office (if any), at the Connecticut
address set forth in the following section 11, as its agent to accept service of
process. Seller further consents to the enforcement in France of any judgment
obtained against Seller in the United States.
11. NOTICES. All notices and other communications required or permitted to be
given under this Agreement shall be in writing, and may be delivered personally
or sent by certified mail, via an independent courier service or by electronic
facsimile transmission to the other Party at the address below (or to such other
address as the Party shall designate by written notice in accordance with this
section 12).
To Seller: SOFECIA
87 Avenue de la Grande Armee
75782 Xxxxx Xxxxx 00, Xxxxxx
Attn: Xxxx-Xxxxxx Vertenelle, President
Phone: (00-0) 00 00 00 00
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With a copy to: Xxxxx Xxxxxxx Law Department
00 Xxxxxxxx Xxxx, XX Xxx 000
Xxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Phone: 000 000-0000
Fax: 000 000-0000
To Buyer: JLM Marketing, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, President
Phone: 000 000-0000
Fax: 000 000-0000
With a copy to: Mezan, Xxxxxxxxx and Xxxxxxxxxxx, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
Phone: 000 000-0000
Fax: 000 000-0000
12. SEVERABILITY. Should any part or provision of this Agreement be held
unenforceable or in conflict with the law of any jurisdiction, the validity of
the remaining parts or provisions shall not be affected by such holding.
13. NON-WAIVER. No delay, omission or failure on the part of either party in
enforcing any right with respect to this Agreement shall constitute a waiver by
such party of such right, or be deemed a waiver of any similar right or other
provision at the same or any subsequent time.
14. ENTIRE AGREEMENT; MODIFICATION. This Agreement supersedes all prior
agreements between the Parties and constitutes the entire agreement between the
Parties concerning the subject matter hereof. It may not be cancelled, amended
or modified, in whole or in part, except by an instrument in writing signed by
both Parties.
15. SUCCESSORS; ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
Either Party may assign its obligations and rights hereunder to an affiliated
company upon notice to the other Party. An assignment by either Party to an
unaffiliated company shall require the written consent of the other, which
consent shall not be unreasonably withheld. In the event of such assignment by
Buyer, Buyer (or an affiliate of Buyer) will remain primarily liable for the
minimum annual payment of $50,000 under subsection 2(g) of this Agreement.
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16. SURVIVAL. Subject to the limitations set forth in subsection 4(c) above, all
the terms, conditions, representations, warranties and obligations contained in
this Agreement shall survive the Closing Date.
17. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
when so executed and when delivered shall be an original and all such
counterparts shall together constitute one instrument.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first set forth above.
JLM Marketing, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Xxxxxx X. Xxxxxxx
President
Societe Financiere d'Entreposage et de Commerce International de l'Alcool, S.A.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxx
Authorized Representative
