STOCK PURCHASE AGREEMENT BY AND BETWEEN HA-LO HOLDINGS, LLC AND HALO HOLDING CORPORATION FEBRUARY 28, 2007
Exhibit 99.3
Execution Version
BY AND BETWEEN
HA-LO HOLDINGS, LLC
AND
HALO HOLDING CORPORATION
FEBRUARY 28, 2007
ARTICLE I THE TRANSACTION |
1 | |||
1.1 The Stock Purchase |
1 | |||
1.2 Consideration |
1 | |||
1.3 Net Working Capital Adjustment |
1 | |||
1.4 Escrow |
3 | |||
1.5 Selling Expenses |
3 | |||
ARTICLE II THE CLOSING AND TRANSFER OF STOCK |
3 | |||
2.1 Closing |
4 | |||
2.2 Closing Actions |
4 | |||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE BUYER |
6 | |||
3.1 Status |
6 | |||
3.2 Power and Authority |
6 | |||
3.3 Enforceability |
6 | |||
3.4 No Violations; Consents and Approvals |
6 | |||
3.5 Brokers |
6 | |||
3.6 Availability of Funds |
7 | |||
3.7 Investment Representation |
7 | |||
3.8 Solvency |
7 | |||
3.9 Knowledge |
7 | |||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF Seller |
7 | |||
4.1 Corporate Status |
8 | |||
4.2 Power and Authority |
8 | |||
4.3 Enforceability |
8 | |||
4.4 Capitalization; Stock Ownership |
8 | |||
4.5 Subsidiaries |
8 | |||
4.6 No Violation; Consents and Approvals |
8 | |||
4.7 Financial Statements |
9 | |||
4.8 Absence of Certain Developments |
9 | |||
4.9 Litigation |
10 | |||
4.10 Environmental Matters |
10 | |||
4.11 Title to Properties |
11 | |||
4.12 Compliance with Laws |
12 | |||
4.13 Labor and Employment Matters |
12 | |||
4.14 Employee Benefit Plans |
13 | |||
4.15 Tax Matters |
14 | |||
4.16 Insurance |
15 | |||
4.17 Licenses and Permits |
15 | |||
4.18 Affiliated Transactions |
15 | |||
4.19 Material Contracts |
15 | |||
4.20 Intellectual Property |
17 | |||
4.21 Customers and Suppliers |
17 | |||
4.22 No Brokers |
17 | |||
4.23 Certain Business Practices |
17 | |||
4.24 Undisclosed Liabilities |
18 | |||
4.25 Accounts Payable |
18 | |||
4.26 Receivables |
18 |
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4.27 Inventory |
18 | |||
4.28 Bank Accounts |
18 | |||
4.29 Product Warranty; Product Liability |
18 | |||
4.30 Knowledge |
19 | |||
ARTICLE V POST-CLOSING COVENANTS |
19 | |||
5.1 Further Assurances |
19 | |||
5.2 Transfer Taxes |
19 | |||
5.3 Litigation Support |
19 | |||
5.4 Director and Officer Liability and Indemnification |
19 | |||
5.5 Access to Books and Records |
20 | |||
5.6 Employee Benefits |
20 | |||
5.7 Investment Intent of the Buyer |
20 | |||
5.8 Responsibility for Filing Tax Returns |
21 | |||
5.9 Change of Seller’s Name |
21 | |||
ARTICLE VI SURVIVAL; INDEMNIFICATION |
21 | |||
6.1 Survival of Representations, Warranties and Covenants |
21 | |||
6.2 Indemnification Provisions for Benefit of the Buyer |
22 | |||
6.3 Indemnification Provisions for Benefit of the Sellers |
23 | |||
6.4 Matters Involving Third Parties |
23 | |||
6.5 Determination of Losses |
24 | |||
6.6 Mitigation |
25 | |||
6.7 Exclusive Remedy |
25 | |||
6.8 Third Party Beneficiaries |
25 | |||
ARTICLE VII DEFINITIONS |
25 | |||
7.1 Defined Terms |
25 | |||
7.2 Other Definitional Provisions |
31 | |||
ARTICLE VIII GENERAL PROVISIONS |
31 | |||
8.1 Notices |
31 | |||
8.2 Entire Agreement |
32 | |||
8.3 Expenses |
33 | |||
8.4 Amendment; Waiver |
33 | |||
8.5 Binding Effect; Assignment |
33 | |||
8.6 Counterparts |
33 | |||
8.7 Interpretation |
33 | |||
8.8 Governing Law; Interpretation |
33 | |||
8.9 Specific Performance |
33 | |||
8.10 Arm’s Length Negotiations; Drafting |
34 | |||
8.11 Confidentiality; Publicity |
34 |
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SCHEDULES |
||
Schedule A
|
Closing Statement | |
Schedule B
|
Statement of Selling Expenses | |
DISCLOSURE SCHEDULE | ||
Section 2.2(a)(ii)
|
Indebtedness Payments | |
Section 4.4
|
Capitalization; Stock Ownership | |
Section 4.6
|
No Violation; Consents and Approvals | |
Section 4.7
|
Financial Statements | |
Section 4.8
|
Absence of Certain Developments | |
Section 4.9
|
Litigation | |
Section 4.10
|
Environmental Matters | |
Section 4.11(a)
|
Personal Property | |
Section 4.11(b)
|
Leased Real Property | |
Section. 4.14
|
Employee Benefit Plans | |
Section 4.15
|
Tax Matters | |
Section 4.16
|
Insurance | |
Section 4.17
|
Licenses and Permits | |
Section 4.18
|
Affiliated Transactions | |
Section 4.19
|
Material Contracts | |
Section 4.20
|
Intellectual Property | |
Section 4.21(a)
|
Material Suppliers | |
Section 4.21(b)
|
Material Customers | |
Section 4.21(c)
|
Customer and Supplier Terminations/Reductions | |
Section 4.28
|
Bank Accounts | |
Section 4.29
|
Product Warranty; Product Liability |
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This STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into as of February 28,
2007, by and between Halo Holding Corporation, a Delaware corporation (the “Buyer”), and
HA-LO Holdings, LLC, a Delaware limited liability company (the “Seller”). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to them in Section
10.1 of this Agreement. The Buyer and the Seller may be referred to herein each as a
“Party” and collectively as the “Parties”.
RECITALS:
WHEREAS, the Seller is the beneficial owner of one hundred percent (100%) of the issued and
outstanding capital stock (the “Stock”) of Halo Branded Solutions, Inc., a Delaware
corporation (the “Corporation” or the “Company”);
WHEREAS, the Seller desires to sell, and the Buyer desires to purchase, one hundred percent
(100%) of the Stock on the terms and subject to the conditions set forth herein; and
WHEREAS, simultaneously with the execution and delivery of this Agreement, the Buyer, the
Seller and the Escrow Agent have executed and delivered the Escrow Agreement dated the date hereof
(the “Escrow Agreement”).
TERMS OF AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants of the Parties set forth in this
Agreement and in the Purchase Agreement, the Parties hereby agree as follows:
ARTICLE I
THE TRANSACTION
1.1 The Stock Purchase. Subject to the terms and conditions of this Agreement, at the
Closing, the Seller shall sell and the Buyer shall acquire, the Stock, free and clear of all Liens
and Restrictions.
1.2 Consideration. In consideration for the Stock, the Buyer shall pay to the Seller
Sixty-Two Million Five Hundred Thousand Dollars ($62,500,000) (a) either (i) plus the
amount, if any, by which the Net Working Capital is greater than Ten Million Three Hundred Thousand
dollars ($10,300,000), or (ii) minus, the amount, if any, by which the Net Working Capital
is less than Ten Million Three Hundred Thousand dollars ($10,300,000), minus (b) the amount
of Indebtedness Payments as of the Closing Date as set forth in the Payoff Letters, and
minus (c) the Selling Expenses (such amount is referred to herein as the “Purchase
Price”). At the Closing, the Buyer shall pay to the Seller the Purchase Price minus the Escrow
Funds.
1.3 Net Working Capital Adjustment.
(a) Estimated Net Working Capital. The Seller has delivered to the Buyer a good faith
calculation of its estimate of the Net Working Capital (the “Estimated Net Working
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Capital”) and an estimate of the Purchase Price (the “Estimated Purchase
Price”), which has been calculated in accordance with Section 1.2 (the “Closing
Statement”), and which is attached hereto as Schedule A.
(b) Final Net Working Capital.
(i) No later than sixty (60) days after the Closing Date, the Buyer will deliver to the
Seller a statement setting forth its calculation of the Net Working Capital (the “Buyer’s
Closing Statement”). After delivery of the Buyer’s Closing Statement, the Seller and its
accountants shall be permitted to review and copy the work papers of the Buyer and its accountants
related to the preparation of the Buyer’s Closing Statement and make other inquiries of the Buyer
and its accountants regarding questions concerning or disagreements with the Closing Statement
arising in the course of its review thereof. If the Seller has any objections to the Closing
Statement, then the Seller shall deliver to the Buyer a statement (an “Objection
Statement”) setting forth its disputes or objections (the “Objection Disputes”) to the
Closing Statement and Seller’s proposed calculation of the Net Working Capital (“Seller’s
Closing Statement”). If a proper Objection Statement is not delivered to the Buyer within
thirty (30) days after delivery of the Buyer’s Closing Statement, then the Buyer’s Closing
Statement as originally delivered by the Buyer shall be final, binding and non-appealable by the
Parties. If an Objection Statement is timely delivered, then the Buyer and the Seller shall
negotiate in good faith to resolve any Objection Disputes, but if they do not reach a final
resolution within thirty (30) days after the delivery of the Objection Statement, the Seller and
the Buyer shall submit each unresolved Objection Dispute to the Chicago office of Ernst & Young LLP
(provided that it not be submitted to a person who has been engaged by Compass Group or H.I.G.
Capital or any of their portfolio companies) (the “Independent Auditor”) to resolve such
Objection Disputes. The Independent Auditor shall be instructed to set forth a procedure to
provide for prompt resolution of any unresolved Objection Disputes and, in any event, to make its
determination in respect of such Objection Disputes within thirty (30) days following its
retention. The Independent Auditor’s determination of such Objection Disputes shall be final and
binding upon the Parties; provided, however, that no such determination with
respect to any item reflected in the Objection Statement shall be any more favorable to the Buyer
than is set forth in the Net Working Capital calculation reflected in the Closing Statement or any
more favorable to the Seller than is proposed in the Objection Statement. All fees and costs of
the Independent Auditor, if any, shall be paid by (x) the Seller, if the Net Working Capital after
taking into account the adjustments made by the Independent Auditor is closer to the Net Working
Capital calculation set forth in the Closing Statement, or (y) by the Buyer, if the Net Working
Capital after taking into account the adjustments made by the Independent Auditor is closer to the
Net Working Capital calculation set forth in the Objection Statement. The process set forth in
this Section 1.3(b)(i) shall be the exclusive remedy of the Parties for any disputes
related to items required to be reflected on the Closing Statement or included in the calculation
of the Net Working Capital, whether or not the underlying facts and circumstances constitute a
breach of any representations or warranties; provided that the preceding limitation is only
intended to prevent double recovery by Buyer and shall not prohibit Buyer from making a claim for a
breach of any representation or warranty to the extent the Losses sought to be recovered by Buyer
are in addition to any deficiency in Net Working Capital.
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(ii) If the Net Working Capital, as finally determined pursuant to clause (i) above, is
greater than the Estimated Net Working Capital, then Buyer shall promptly (but in any event
within five (5) Business Days of the final determination thereof) pay to the Seller such excess by
wire transfer of immediately available funds to an account or accounts designated by the Seller.
If the Net Working Capital, as finally determined pursuant to clause (i) above, is less
than the Estimated Net Working Capital, then the Seller shall promptly (but in any event within
five (5) Business Days of the final determination thereof) pay to the Buyer such deficiency by wire
transfer of immediately available funds to an account or accounts designated by the Buyer.
(c) Preparation of Closing Statement. The Closing Statement (and all calculations of
Current Assets, Current Liabilities and Net Working Capital) shall be prepared and calculated in
accordance with the same accounting methodologies, principles and procedures used in, and on a
basis consistent with, those applied by the Corporation in preparing the Interim Financial
Statements (including calculating reserves in accordance with the same methodology used to
calculate such reserves in preparation of the Interim Financial Statements), except that the
Closing Statement (and all calculations of Current Assets, Current Liabilities and Net Working
Capital) shall: (i) not include any purchase accounting or other adjustment arising out of the
consummation of the transactions contemplated by this Agreement; (ii) be based on facts and
circumstances as they exist on the Closing Date and shall exclude the effect of any act, decision
or event occurring on or after the Closing; (iii) include the same line items included in the
Interim Financial Statements; (iv) not include any cash, or the application of such cash, wired to
the Company on the Closing Date by the Buyer; and (v) not include any deduction for any Selling
Expenses, provided however, the accrual for taxes payable shall be net of a reduction equal to
$823,080 resulting from the payment of Employee Bonuses concurrently with the Closing.
(d) Cooperation. Following the Closing, the Buyer shall, and shall use commercially
reasonable efforts to cause the Corporation and its officers, employees, consultants, accountants
and agents to, cooperate fully with the Seller and its accountants in connection with its review of
the Closing Statement and the preparation of the Objection Statement and to provide any information
reasonably requested by the Seller and its accountants in connection therewith or in connection
with resolving any Objection Dispute.
1.4 Escrow. Pursuant to the terms of this Agreement and the Escrow Agreement, the
Escrow Funds shall be available to the Buyer upon the proper exercise of its indemnification rights
hereunder, and otherwise payable to the Seller. The Escrow Funds will be held and disbursed by the
Escrow Agent solely for the purposes and in accordance with the terms of this Agreement and the
Escrow Agreement. The Escrow Funds will be held as a trust fund and will not be subject to any
Lien, attachment, trustee process or any other judicial process of any creditor of any Party.
1.5 Selling Expenses. The Seller has delivered to the Buyer a true and correct
calculation of the Selling Expenses attached hereto as Schedule B (the “Statement of
Selling Expenses”).
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ARTICLE II
THE CLOSING AND TRANSFER OF STOCK
2.1 Closing. The closing of the transactions contemplated by this Agreement (the
“Closing”), shall occur at the offices of XxXxxxxxx Will & Xxxxx LLP, in Chicago, Illinois,
commencing at 10:00 a.m. Eastern Standard Time, on the second (2nd) Business Day following the
satisfaction or waiver of all conditions set forth in Article VII (other than conditions
with respect to actions the respective Parties will take at the Closing itself) or at such other
time or place as may be mutually agreed upon by the Parties (the “Closing Date”). The
transactions contemplated hereby shall be effective as of 11:59 p.m. on the Closing Date.
2.2 Closing Actions. At the Closing:
(a) The Buyer shall:
(i) deliver to the Seller the Estimated Purchase Price, less the Escrow Funds;
(ii) deliver an amount equal to the Escrow Funds to the Escrow Agent, pursuant to the
provisions of the Escrow Agreement;
(iii) deliver to all lenders or other creditors of the Company, on behalf of the Company, and
for their accounts, via wire transfer of immediately available funds to such bank accounts as are
designated by such lenders or other creditors, any amounts necessary to pay off all Indebtedness
outstanding as of the Closing Date, but immediately prior to the Closing (the “Indebtedness
Payments”). The Indebtedness Payments are set forth on Section 2.2(a)(iii) of the
Disclosure Schedules. For each instrument of Indebtedness fully repaid, Seller or the
Corporation (pre-Closing), as applicable, will cause all lenders thereof to surrender at Closing
and cancel all instruments evidencing such Indebtedness and obtain the release or termination of
all security interests and guarantees relating thereto and the authorization for the Company to
terminate on behalf of such lenders all UCC financing statements filed in connection therewith.
(iv) deliver to all third parties, on behalf of Seller and the Corporation, and for their
accounts, via wire transfer of immediately available funds to such bank and accounts as are
designated by such third parties, any amounts necessary to pay the Selling Expenses pursuant to
the Statement of Selling Expenses (but not the Employee Bonuses to Company employees, which shall
instead be paid by the Company at the Closing);
(v) deliver to the Seller: (a) a copy of the charter of the Buyer, certified by the
Secretary of State of the State of Delaware, dated as of a date no more than five (5) business
Days prior to the Closing Date; (b) a certificate of good standing from the State of Delaware, and
each jurisdiction in which it is duly qualified to transact business, dated as of a date no more
than five (5) business Days prior to the Closing Date; and (c) a copy of the
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Buyer’s bylaws and certificate of incorporation, with all amendments thereto, certified by
the Buyer’s secretary; and
(vi) deliver to the Seller copies of the resolutions or written consents duly adopted by the
Buyer’s board of directors, certified by the Buyer’s secretary, authorizing the execution,
delivery and performance of this Agreement and the other agreements contemplated hereby, and the
consummation of all transactions contemplated hereby and thereby.
(b) The Seller shall:
(i) deliver to the Buyer stock certificates representing the Stock endorsed in blank and
accompanied by stock powers executed in blank;
(ii) deliver to the Buyer the resignations, effective as of the Closing, of each director and
officer of the Corporation, other than Xxxx Xxxxx;
(iii) deliver to the Buyer the Pay Off Letters;
(iv) deliver to the Buyer all minute books, stock books, ledgers and registers, corporate
seals, if any, and other corporate records relating to the organization, ownership and maintenance
of the Corporation, if not already located on the premises of the Corporation;
(v) deliver to the Buyer: (a) a copy of the certificate of incorporation of the Corporation,
certified by the Secretary of State of the State of Delaware dated as of a date no more than five
(5) Business Days prior to the Closing Date; (b) a certificate of good standing from the State of
Delaware and each jurisdiction in which it is duly qualified to transact business dated as of a
date no more than five (5) Business Days prior to the Closing Date; and (c) a copy of the
Corporation’s bylaws, with all amendments thereto, certified by the Corporation’s secretary;
(vi) deliver to the Buyer copies of the resolutions or written consents duly adopted by the
Seller’s board of managers, certified by the Seller’s secretary, authorizing the execution,
delivery and performance of this Agreement and the other agreements contemplated hereby, and the
consummation of all transactions contemplated hereby and thereby; and
(vii) deliver to the Buyer a legal opinion from XxXxxxxxx Will & Xxxxx LLP.
(c) Buyer shall have also received the following:
(i) employment agreements between the Corporation and Xxxx Xxxxx;
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(ii) a nonsolicitation agreement executed by the Buyer, the Seller, the Company and H.I.G.
Capital, LLC, dated the date hereof; and
(iii) a guaranty executed by Halo Acquisition Corp. dated the date hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller that, as of the date hereof and as of the
Closing Date:
3.1 Status. The Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
3.2 Power and Authority. The Buyer has all requisite corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. All acts or proceedings required to be taken by the Buyer to
authorize the execution and delivery of this Agreement and the performance of the Buyer’s
obligations hereunder have been properly taken.
3.3 Enforceability. This Agreement has been duly authorized, executed and delivered
by the Buyer and, assuming the due and valid authorization, execution and delivery of this
Agreement by the Seller, this Agreement constitutes the legal, valid and binding obligation of the
Buyer, enforceable against it in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting or relating
to creditors’ rights generally and general equitable principles.
3.4 No Violations; Consents and Approvals. The execution and delivery of this
Agreement by the Buyer, and the consummation by it of the transactions contemplated hereby will
not: (a) violate any provision of the organizational documents of the Buyer; (b) violate any
material law, statute, ordinance, rule or regulation of any Governmental Authority applicable to,
binding upon or enforceable against the Buyer; (c) result in any material breach of, or constitute
a material default (or an event which would, with the passage of time or the giving of notice or
both, constitute a material default) under, or give rise to a right of payment under or the right
to terminate, amend, modify, abandon or accelerate, any Contract to which the Buyer is a party or
bound; (d) result in the creation or imposition of any Lien upon any of the material property or
material assets of the Buyer; or (e) other than compliance with the HSR Act, require the consent or
approval of any Governmental Authority.
3.5 Brokers. The Buyer has not incurred any obligation for any finder’s or broker’s
or agent’s fees or commissions or similar compensation in connection with the transactions
contemplated hereby for which the Seller may be liable.
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3.6 Availability of Funds. The Buyer has immediately available funds sufficient to
enable it to pay the Purchase Price and all other amounts payable by it in connection with this
Agreement and the transactions contemplated hereby.
3.7 Investment Representation. The Buyer is acquiring the Stock for its own account
with the present intention of holding the Stock for investment purposes and not with a view to or
for sale in connection with any public distribution of such securities in violation of any federal
or state securities laws. The Buyer is an “accredited investor” as defined in Regulation D
promulgated by the Securities and Exchange Commission under the Securities Act. The Buyer
acknowledges that the offering and sale of the Stock as contemplated by this Agreement are intended
to be exempt from registration under the Securities Act, pursuant to Section 4(2) of the Securities
Act, and may not be resold by the Buyer except pursuant to an effective registration statement
under the Securities Act or an exemption from registration thereunder and pursuant to registration
or qualification (or exemption therefrom) under applicable state securities laws.
3.8 Solvency. Immediately after giving effect to the transactions contemplated by
this Agreement and assuming that all of the representations and warranties made in this Agreement
by the Seller are true and correct, to Buyer’s knowledge the Buyer and the Corporation shall (a) be
able to pay their respective debts as they become due; (b) own property which has a fair saleable
value greater than the amounts required to pay their respective debts (including a reasonable
estimate of the amount of all contingent liabilities); and (c) have adequate capital to carry on
their respective businesses. No transfer of property is being made and no obligation is being
incurred in connection with the transactions contemplated by this Agreement with the intent to
hinder, delay or defraud either present or future creditors of the Buyer or the Corporation.
3.9 Knowledge. Except for the facts disclosed under Section 4.9 of the Disclosure
Schedules, as of the Closing, neither I. Xxxxxx Xxxxxxx, Xxxxx Xxxx, Xxxxxxx Xxxxxxxxxxx nor any
director of the Buyer has actual knowledge of any facts or circumstances that would form the basis
of, or give rise to, any claim against the Seller or its Affiliates under Article VI of this
Agreement or otherwise related to the transactions consummated as a result of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the Disclosure Schedule, the Seller hereby represents and warrants to
the Buyer that, as of the date hereof:
4.1 Corporate Status. Each of the Seller and the Corporation is duly organized,
validly existing and in good standing under the laws of its jurisdiction of its organization and
has the requisite power and authority to own or lease its properties and to carry on its business
as now being conducted. The Corporation is legally qualified to transact business as a foreign
corporation in all jurisdictions where the nature of its properties and the conduct of its business
as now conducted require such qualification, except where the failure to be so qualified would not
have a Material Adverse Effect. There is no pending or threatened proceeding for the merger,
consolidation, dissolution, liquidation, insolvency or rehabilitation of the Corporation.
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The copies of the certificate of incorporation and bylaws of the Corporation as provided to
the Buyer are true, accurate and complete in all respects and reflect all amendments made through
the date of this Agreement.
4.2 Power and Authority. The Seller has all limited liability company power and
authority to execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. All limited liability company acts or proceedings
required to be taken by the Seller to authorize the execution and delivery of this Agreement and
the performance of the Seller’s obligations hereunder have been properly taken.
4.3 Enforceability. This Agreement has been duly authorized, executed and delivered
by the Seller and, assuming the due and valid authorization, execution and delivery of this
Agreement by the Buyer, this Agreement constitutes the legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting or relating
to creditors’ rights generally and general equitable principles.
4.4 Capitalization; Stock Ownership. Section 4.4 of the Disclosure Schedule
sets forth, with respect to the Corporation, (a) the number of authorized shares of each class of
its capital stock; and (b) the number of issued and outstanding shares of each class of its capital
stock. All of the shares of Stock (i) have been duly authorized and validly issued and are fully
paid and non-assessable, and (ii) were issued in compliance with all applicable state and federal
securities laws. There are no outstanding rights, options, warrants, convertible securities,
subscription rights, conversion rights, exchange rights or other agreements that require the
Corporation to issue or sell any shares of its capital stock (or securities convertible into or
exchangeable for shares of its capital stock). No person has any right of first refusal or similar
right with respect to the Stock. The Corporation is not obligated to redeem or otherwise acquire
any of its outstanding shares of capital stock. The Seller is the sole record and beneficial
holder of all issued and outstanding shares of capital stock of the Corporation and the Stock is
free and clear of all Liens and Restrictions.
4.5 Subsidiaries. The Corporation does not own, directly or indirectly, the
outstanding voting or non-voting equity of any other Person.
4.6 No Violation; Consents and Approvals. Except as set forth on Section 4.6 of
the Disclosure Schedule, the execution and delivery of this Agreement by the Seller and the
consummation by it of the transactions contemplated hereby will not: (a) violate any provision of
the organizational documents of the Seller or of the Corporation; (b) violate material any law,
statute, ordinance, rule or regulation of any Governmental Authority applicable to, binding upon or
enforceable against Seller or the Corporation; (c) result in any material breach of, or constitute
a material default (or an event which would, with the passage of time or the giving of notice or
both, constitute a material default) under, or give rise to a right of payment under or the right
to terminate, amend, modify, abandon or accelerate, any Material Contract, other than with respect
to those agreements relating to the Pay Off Letters; (d) result in the creation or imposition of
any Lien upon any of the material property or material assets of the Corporation; or (e) require
the consent or approval of any Governmental Authority.
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4.7 Financial Statements. Attached as Section 4.7 of the Disclosure Schedule
are copies of (a) the audited consolidated financial statements of the Corporation as of and for
the period from May 14, 2003 to December 31, 2003 and as of and for the one-year periods ended on
December 31, 2004 and December 31, 2005, including the notes thereto (the “Audited Financial
Statements”), and (b) the unaudited consolidated balance sheet and income statement of the
Corporation as of and for the twelve month period December 31, 2006 (the “Interim Financial
Statements” and collectively with the Audited Financial Statements, the “Financial
Statements”). The Financial Statements (including the notes thereto) fairly present in all
material respects the financial position of the Corporation at each of the balance sheet dates and
the results of operations and, in the case of the Audited Financial Statements, cash flows, for
each of the periods covered thereby. The Financial Statements have been prepared in accordance
with GAAP consistently applied throughout the periods involved, except that the Interim Financial
Statements do not reflect year-end adjustments and do not contain footnote disclosures.
4.8 Absence of Certain Developments. Except as contemplated or permitted by this
Agreement or as set forth on Section 4.8 of the Disclosure Schedule, since the date of the
Interim Financial Statements:
(a) the Corporation has not mortgaged, pledged or subjected to any material Lien, any material
portion of the Corporation’s assets, taken as a whole, expect Permitted Liens;
(b) the Corporation has not sold, assigned or transferred any material portion of the
Corporation’s tangible assets or Intellectual Property, taken as a whole, in each case except in
the ordinary course of business;
(c) the Corporation has not issued, sold or transferred any of its capital stock or other
equity securities convertible into its capital stock or other equity securities or warrants,
options or other rights to acquire its capital stock or other equity securities, or other bonds or
debt securities;
(d) there has not occurred any change or event that has resulted in, or would reasonably be
expected to have, a Material Adverse Effect;
(e) the Corporation has not incurred any debts or liabilities (absolute, accrued, contingent
or otherwise), other than current liabilities incurred in the ordinary course of business;
(f) the Corporation has not discharged or satisfied any Lien other than a Lien securing, or
paid any obligation or liability other than, current liabilities shown in the Interim Financial
Statements and current liabilities incurred from and after the Interim Financial Statements, in
each case in the ordinary course of business;
(g) the Corporation has not canceled or compromised any debt owed to or by or claim of or
against it, or waived or released any right of material value other than in the ordinary course of
business;
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(h) the Corporation has not entered into any transaction (other than as contemplated by this
Agreement) or otherwise committed or obligated itself to any capital expenditure, other than in the
ordinary course of business;
(i) the Corporation has not made any change in its accounting methods, principles or
practices;
(j) the Corporation has not made or suffered any amendment or termination of any Material
Contract;
(k) the Corporation has not paid, or agreed to pay, any increase in compensation payable or to
become payable (including any bonus or commission formula) of any kind to any employee, officer,
director or consultant;
(l) the Corporation has not changed or suffered any change in any benefit plan or labor
agreement affecting any employee of the Corporation otherwise than to conform to applicable laws;
(m) the Corporation has not entered into any transaction with Seller or any Affiliate of
Seller;
(n) the Corporation has not failed to pay or perform any of its obligations when and to the
extent due other than pursuant to a good faith defense or right of setoff;
(o) the Corporation has not experienced any termination of employment (whether voluntary or
involuntary) of (i) any key employee employed by the Corporation, or (ii) any key independent
contractor engaged by the Corporation; and
(p) the Corporation has not committed or agreed to any of the foregoing.
4.9 Litigation. Except as set forth on the Section 4.9 of the Disclosure
Schedule, (a) there are no (and during the past year there have been no) claims, actions,
suits, arbitrations or proceedings or investigations (collectively, “Actions”) pending or,
to the Seller’s Knowledge, threatened in writing against the Corporation, at law or in equity,
before or by any Governmental Authority, arbitrator or mediator. In the opinion of the Seller,
there are no Actions where there is a reasonable prospect of a determination adverse to the
Corporation and which, if adversely determined to the Corporation, would have a Material Adverse
Effect. The Corporation is not subject to any outstanding judgment, order or decree of any
Governmental Authority which relate specifically to the Corporation.
4.10 Environmental Matters. Except as set forth on Section 4.10 of the Disclosure
Schedule:
(a) The Corporation is in compliance in all material respects with all Environmental Laws.
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(b) The Corporation has not, within the past two (2) years, received any written notice of
violation of Environmental Laws or any liability arising under Environmental Laws, including any
investigatory, remedial or corrective obligation, relating to the Corporation or its facilities,
the subject of which is unresolved.
(c) The Corporation has not generated, processed, produced, stored, treated, transported,
Released or disposed of any Hazardous Materials at, in, on, under, about or from the Leased Real
Property (including facilities previously leased or owned by the Corporation or any other business
the stock or net assets of which have been acquired by the Corporation) or at any other location
except in material compliance with all applicable Environmental Laws. To the Knowledge of the
Seller, without investigation, there are no above-ground or underground storage tanks or electrical
equipment containing PCB’s or any friable asbestos-containing materials on any of the Leased Real
Property (including facilities previously leased or owned by the Corporation or any other business
the stock or net assets of which have been acquired by the Corporation), except in material
compliance with all applicable Environmental Laws.
(d) The Corporation has provided to Buyer copies of all reports in its possession of
environmental compliance audits, environmental assessments, environmental inspection reports, and
correspondence with or submissions to Governmental Authority under Environmental Laws, in each case
in connection with the operation of the Corporation’s business or the Leased Real Property.
(e) Notwithstanding the generality of any other representations and warranties in this
Agreement, the representations and warranties in this Section 4.10 constitute the sole and
exclusive representations and warranties of the Seller with respect to matters directly or
indirectly relating to, or arising out of any environmental, health or safety Laws, including any
Environmental Laws.
4.11 Title to Properties.
(a) Except as set forth on Section 4.11(a) of the Disclosure Schedule, the Corporation
has good, valid and marketable title to, or a valid and enforceable leasehold interest in (or other
valid and enforceable right to use), all of the tangible personal property and assets owned by it
or shown to be owned by it on the Interim Financial Statements, free and clear of all Liens, except
for Permitted Liens or assets disposed of in the ordinary course of business since the date of the
Interim Financial Statements.
(b) The real property demised by the leases described on Section 4.11(b)(i) of the
Disclosure Schedule (the “Leased Real Property”) constitutes all of the real property
leased by the Corporation. Except as set forth on Section 4.11(b)(ii) of the Disclosure
Schedule, the Leased Real Property leases are in full force and effect, subject to proper
authorization and execution of such lease by the other party and the application of any bankruptcy
or creditor’s rights laws. The Corporation has made available to the Buyer complete and accurate
copies of each of such leases. The Corporation is not in default in any material respect under any
of such leases.
(c) The Corporation does not own any real property.
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(d) The Corporation has not received any pending written notice from any landlord or
sublandlord or any of their respective agents of the termination of any such leases. The
Corporation has not subleased, assigned or transferred any of its rights with respect to the Leased
Real Property, nor has the Corporation entered into any agreement to do so.
(e) The Leased Real Property is supplied with utilities and other services necessary for the
operation of the business conducted by the Corporation. No portion of the Leased Real Property is
subject to any pending condemnation or other proceeding by any Governmental Authority, and to the
Seller’s Knowledge, there is no threatened condemnation or other proceeding with respect thereto.
There are no (i) contracts or other agreements, written or oral, to which the Corporation is a
party, granting to any party or parties the right of use or occupancy of any portion of the parcels
of the Leased Real Property or (ii) parties (other than the Corporation) in possession of the
Leased Real Property.
4.12 Compliance with Laws. The Corporation is in compliance, in all material
respects, and to Seller’s Knowledge, has been in compliance, in all material respects, with all
material applicable laws, regulations and orders of any Governmental Authority since December 31,
2003 (“Laws”). Since December 31, 2003, the Corporation has not been cited, fined or
otherwise notified in writing of any material failure to comply with any Laws, regulations or
orders.. To Sellers’ Knowledge, there are no facts that are reasonably likely to give rise to any
violation by the Corporation of any Law, except in such cases where such violation would not have a
Material Adverse Effect.
4.13 Labor and Employment Matters.
(a) The Corporation has made available to Buyer the name and current rate of compensation of
all employees of the Corporation as of January 1, 2007 including (i) base salary (ii) bonus
arrangements, (iii) commission arrangements, and (iv) the date on which the most recent salary
increase went into effect. Except as disclosed on Section 4.13 of the Disclosure
Schedules, the Corporation has not agreed in writing to increase the current compensation level
of any of its officers, directors or employees. The Corporation is not a party to or bound by any
collective bargaining agreement, and to the Seller’s Knowledge there has been no organized effort
by any labor union during the two (2) years prior to the date of this Agreement to organize any
employees of the Corporation into one (1) or more collective bargaining units. There is no pending
or, to the Knowledge of the Seller, threatened strike or organized work stoppage involving the
employees of the Corporation. To the Knowledge of Seller, as of the date of this Agreement, no
executive or group of key employees has any plans to terminate his, her or their employment with
the Corporation as a result of the transactions contemplated hereby, .
(b) Except as set forth on Section 4.13 of the Disclosure Schedules, the Corporation
does not have any unfair labor practice charge or complaint or other proceeding pending or, to
Sellers’ Knowledge, threatened against it before the National Labor Relations Board or similar
authority, or any pending arbitrations, grievances, suits or administrative proceedings before any
Governmental Authority relating to labor or employment matters involving any Employees.
Section 4.13 of the Disclosure Schedules sets forth all written claims, written grievances,
proceedings, disputes, governmental investigations or administrative
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proceedings of any kind against the Corporation regarding its employees or employment
practices, or operations as they pertain to conditions of employment within two (2) years preceding
the date of this Agreement.
(c) The Corporation has classified all individuals who perform or who have performed services
for them correctly under each Plan, ERISA, the Code and other applicable law as common law
employees, independent contractors or leased employees.
4.14 Employee Benefit Plans.
(a) Except as set forth on Section 4.14 of the Disclosure Schedule, with respect to
employees of the Corporation, the Corporation does not maintain or contribute to any “pension
plans” (as such term is defined under Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”)) (the “Pension Plans”) or “welfare plans” (as such
term is defined under Section 3(1) of ERISA) (the “Welfare Plans”). The Pension Plans and
the Welfare Plans are collectively referred to as the “Plans.” Each of the Pension Plans
that is intended to be qualified under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service or is a prototype plan that has received a
notification letter from the Internal Revenue Service. The Plans comply in form and in operation,
in all material respects, with the requirements of the Code, ERISA and all applicable laws.
(b) With respect to the Plans, all required contributions have been made or properly accrued,
in all material respects.
(c) The Corporation has made available to the Buyer true and complete copies of: (i) plan
documents, amendments and related trust agreements; (ii) the most recent determination letter
received from the Internal Revenue Service regarding the Plans or notification letter from the
Internal Revenue Service if a Plan is a prototype plan; and (iii) the latest financial statements
for the Plans.
(d) The Corporation is not a party to, and the Corporation would not be expected to have any
material liability with respect to, any pension plan or welfare benefit plan that is a
“multiemployer plan” (within the meaning of Section 3(37) of ERISA), a “multiple employer plan”
(within the meaning of Section 413 of the Code) or a “multiple employer welfare arrangement”
(within the meaning of Section 3(40) of ERISA).
(e) The Corporation has no material liability with respect to any pension plan (as defined in
Section 3(2) of ERISA) which is subject to Title IV of ERISA, Section 302 of ERISA, or Section 412
of the Code.
(f) Except as would not result in material liability to the Corporation, all applicable
reporting, disclosure, fiduciary and tax qualification requirements under ERISA and the Code have
been fully and timely satisfied in all material respects with respect to each of the Plans. The
Corporation has filed or caused to be filed with the Internal Revenue Service annual reports on
form 5500 or 5500C/R, as applicable, for each of the Plans for all years and periods for which such
reports were required to by filed by the Corporation. Except as would not result in material
liability to the Corporation, all statements and disclosures made on documents or
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forms filed or distributed pursuant to the applicable reporting and disclosure requirements
under ERISA and the Code have been true and complete in all respects and all such documents have
been filed or distributed timely. None of the Plans has been assessed any material excise tax
liability.
(g) To Seller’s Knowledge: (i) no “prohibited transaction,” as defined in Section 406 of
ERISA or Section 4975 of the Code, has occurred with respect to any of the Plans for which no
statutory, class or other exemption exists and which could reasonably be expected to result in
material liability to the Corporation; (ii) no civil or criminal action brought pursuant to part 5
of Title I of ERISA is pending or is threatened in writing or orally against any fiduciary who is
an employee or director of the Corporation; (iii) no civil or criminal action brought pursuant to
part 5 of Title I of ERISA is pending or is threatened in writing or orally against any fiduciary
who is not an employee or director of the Corporation; and (iv) no fiduciary violations, as
described in Section 404 of ERISA, have occurred with respect to which the Corporation could
reasonably be expected to have any material present or future liability or obligation. Except as
required by applicable law, and except as could not reasonably be expected to result in material
liability to the Corporation, each of the Plans is, and has been, operated and administered
substantially in accordance with its terms.
(h) Except as could not reasonably be expected to result in material liability to the
Corporation, none of the Plans maintained by the Corporation provides post-retirement medical
benefits, post-retirement death benefits or other post-retirement welfare benefits or has any
obligation under any plan that provides such benefits, except to the extent of the continuation
coverage rules as provided under Sections 601 through 608 of ERISA or any similar applicable state
law.
4.15 Tax Matters.
(a) The Corporation has filed all material Tax Returns which are required to be filed by it
(taking into account any extensions of time to file which have been duly perfected). Except as set
forth on Section 4.15 of the Disclosure Schedule, all Taxes shown as owing by the
Corporation on all such Tax Returns have been fully paid or properly accrued. All such Tax Returns
are true and correct in all material respects, the provision for Taxes on the Interim Financial
Statements is sufficient, in all material respects, for all accrued and unpaid Taxes as of the date
thereof; and all material Taxes which the Corporation is obligated to withhold from amounts owing
to any employee, creditor or third party have been fully paid or properly accrued, in all material
respects. Except as set forth on Section 4.15 of the Disclosure Schedule, the Corporation
is not, and not been, a party to any Tax allocation, Tax sharing, Tax indemnity, Tax reimbursement
agreement or arrangement, and has not been subject to any audit relating to Taxes, in the past six
(6) years. The Corporation is not liable for the Taxes of any other Person as a transferee or
successor, by contract or otherwise. The Corporation is not liable for the Taxes of any other
Person (other than any of its Subsidiaries) under Treasury Regulation § 1.1502-6 (or any similar
provision of state, local or foreign law) as a transferee or successor, by contract or otherwise.
There are no Liens for Taxes (other than Permitted Liens) upon any of the assets of the
Corporation. The Corporation is not a party to any agreement, contract, arrangement or plan that
has resulted or could result, separately or in the aggregate, in the payment of any “excess
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parachute payment” within the meaning of Section § 280G of the Code (or any corresponding
provision of state, local or foreign Tax law) in connection with the transactions contemplated by
this Agreement.
(b) The Corporation is not a party to any action or proceeding for assessment or collection of
Taxes and no such action or proceeding has been asserted in writing. No waiver or extension of any
statute of limitations which has been executed by the Corporation is in effect with respect to
Taxes of the Corporation. There is no outstanding power of attorney authorizing anyone to act on
behalf of the Corporation in connection with a Tax liability, Tax Return or proceeding relating to
a Tax, and there is no outstanding closing agreement, ruling request, request to change a method of
accounting, subpoena or request for information with or by any taxing authority with respect to the
Corporation. The Corporation is not, nor has it ever been, a “United States real property holding
company” within the meaning of Section 897(c)(2) of the Code.
4.16 Insurance. Section 4.16 of the Disclosure Schedule lists each insurance
policy maintained by the Corporation, including the name of the insurer and policy number (the
“Insurance Policies”). The Insurance Policies are in full force and effect, all premiums
due thereon has been paid, and the Corporation is not in material breach or material default
thereunder.
4.17 Licenses and Permits.
(a) The Corporation possesses, and is in compliance in all material respects with, all
material licenses, permits, certificates, authorizations, rights and other approvals of
Governmental Authorities (collectively, “Permits”) necessary to (i) occupy, maintain,
operate and use the Leased Real Property as it is currently used and (ii) conduct its business as
currently conducted. Section 4.17 of the Disclosure Schedules contains a true and complete
list of all Permits.
4.18 Affiliated Transactions. Except as set forth on Section 4.18 of the
Disclosure Schedule, no officer, director, stockholder or Affiliate of the Corporation or, to
the Seller’s Knowledge, any individual in such officer’s, director’s or stockholder’s immediate
family or their Affiliates is a party to any material contract (other than employment agreements)
with the Corporation or has any material interest in any material property used by the Corporation.
4.19 Material Contracts. Section 4.19 of the Disclosure Schedule sets forth a
list of all Contracts, including all amendments and supplements thereto, to which the Corporation
is a party bound, or by which the Corporation is bound, meeting any of the descriptions set forth
below (collectively referred to herein as the “Material Contracts”):
(a) all Contracts or group of related Contracts with the same party for the purchase of
products or services (other than purchase orders entered into in the ordinary course of business),
under which the Corporation reasonably may be expected to purchase One Hundred Thousand Dollars
($100,000) or more of products or services during the twelve (12) months from the Closing Date and
which cannot be terminated on less than one hundred twenty one (121) days notice without penalty;
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(b) any Contracts (other than purchase orders providing for sales of products in the ordinary
course of business) with any Material Customer or Material Supplier;
(c) all employment Contracts pursuant to which the annual base salary for an employee is
greater than One Hundred Thousand Dollars ($100,000) and any Contracts with employees containing
severance, noncompetition, or proprietary rights provisions;
(d) all personal property leases involving payment obligations over the remaining term of the
lease in excess of One Hundred Thousand Dollars ($100,000) and all capitalized leases;
(e) all licenses and agreements pursuant to which the Corporation uses Intellectual Property
that is material to the operation of the business (other than off-the-shelf software subject solely
to “shrink-wrap” or non-negotiable licenses);
(f) all material Contracts with state, federal, local, or other governmental entities; and
(g) all Contracts (or group of related Contracts) under which the Corporation has created,
incurred, assumed, or guaranteed any indebtedness for borrowed money (other than Contracts relating
to Indebtedness Payments).
(h) any agreement pursuant to which the Corporation leases, subleases, occupies or otherwise
uses any real property;
(i) any agreement that creates a partnership or joint venture;
(j) any agreement that restricts the Corporation from engaging, or competing with any Person,
in any line of business in any geographic area or restricts the Corporation from soliciting certain
employees;
(k) all contracts relating to the issuance or ownership of any equity securities, or
securities convertible into or exchangeable for equity securities, of the Corporation or the
granting of registration rights with respect thereto;
(l) all contracts for the sale or purchase of any material asset, property or right of the
Corporation (other than in the ordinary course of business), or for the grant of any options or
preferential rights to purchase any such asset, property or right, provided the obligations under
such contracts have not been fully performed;
(m) all contracts which provide for earn-outs or similar contingent obligations;
Seller has made available to Buyer a true and correct copy of each written Material Contract prior
to the date hereof. Neither the Corporation nor, to the Knowledge of the Seller, is any other
party to any Material Contract is in material breach of, or in default under, any Material
Contract.
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4.20 Intellectual Property. Section 4.20 of the Disclosure Schedule sets
forth a complete list of all registered Intellectual Property and applications therefor owned by
the Corporation. Except as set forth in Section 4.20 of the Disclosure Schedule: (a) the
Corporation owns and possesses all right, title and interest in and to, or possesses the valid and
enforceable right to use, all material Intellectual Property and applications therefor used in the
material operation of the business of the Corporation as currently conducted; (b) during the
two-year period prior to the date of this Agreement, the Corporation has not received any written
notices of infringement or misappropriation from any third party with respect to the Corporation’s
use of any Intellectual Property; (c) to the Knowledge of the Seller, no third party is materially
infringing or misappropriating any registered Intellectual Property owned by the Corporation; and
(d) to the Knowledge of the Seller, none of the Intellectual Property or products or methods of the
business of the Corporation, as currently conducted, materially infringes upon any other Person’s
Intellectual Property. Except as set forth on Section 4.20 of the Disclosure Schedule, no
rights of the Corporation in and to the Intellectual Property of the Corporation will be affected
by the consummation of the transactions contemplated hereby. Except as set forth on Section
4.20 of the Disclosure Schedule, the Corporation has not sold, transferred, assigned, licensed
or subjected to any Lien any Intellectual Property or any interest therein.
4.21 Customers and Suppliers.
(a) Section 4.21(a) of the Disclosure Schedule sets forth a complete list of those
suppliers that have provided raw materials, products, supplies or services to the Corporation at a
cost to the Corporation of greater than Five Hundred Thousand Dollars ($500,000) during the twelve
(12) months prior to the date of this Agreement (each a “Material Supplier”).
(b) Section 4.21(b) of the Disclosure Schedule sets forth a complete list of the ten
(10) largest customers of the Corporation, determined on an aggregate basis and measured by sales
in calendar year 2006 (each a “Material Customer”).
(c) Except as set forth on Section 4.21(c) of the Disclosure Schedule, since December
31, 2005, the Corporation has not received any written or (to the Knowledge of the Corporation)
oral notice from any of Material Supplier or Material Customer stating that such customer or
supplier will, or intends to, terminate (or reduce its respective annual volume with the
Corporation by more than twenty percent (20%) percent from its 2006 annual volume) its relationship
with the Corporation.
4.22 No Brokers. Except with respect to the broker representing the Seller in this
transaction, Lincoln International LLC, neither the Seller nor the Corporation have incurred any
obligation for any finder’s or broker’s or agent’s fees or commissions or similar compensation in
connection with the transactions contemplated hereby.
4.23 Certain Business Practices. Neither the Corporation nor any directors or
officers, agents or employees of the Corporation acting in activities in connection with the
Corporation’s operations, has (a) used any funds for unlawful contributions, gifts, entertainment
or other unlawful expenses related to political activity; (b) made any unlawful payment to foreign
or domestic government officials or employees or to foreign or domestic political parties or
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campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977, as amended;
(c) made any contributions, payments or gifts constituting criminal bribery; or (d) accepted or
received any illegal contributions, payments or gifts.
4.24 Undisclosed Liabilities. Except as would not have a Material Adverse Effect, the
Corporation does not have any liabilities, except for (a) liabilities reflected in the Financial
Statements (including footnotes), and (b) liabilities which have arisen after the date of the
Interim Financial Statements in the ordinary course of business (to the Knowledge of the Seller,
none of which results from or arises out of any breach of contract, breach of warranty, tort,
infringement or violation of law).
4.25 Accounts Payable. The accounts payable of the Corporation reflected in the
Interim Financial Statements or accrued since the date of the Interim Financial Statements arose
from bona fide transactions in the ordinary course of business and have been determined in
accordance with GAAP, consistently applied in accordance with the Corporation’s past custom and
practice.
4.26 Receivables. All accounts receivable reflected in the Interim Financial
Statements and all accounts receivable of the Corporation accrued since the date of the Interim
Financial Statements (the “Receivables”) are valid claims and resulted from the bona fide
sale of inventory or services by the Corporation or represent other bona fide obligations in favor
of the Corporation. The Receivables in the aggregate are not subject to any pending or threatened
defense, counterclaim, right of offset, returns, allowances or credits, except for early payment
discounts in the ordinary course of business and except to the extent reserved against the
Receivables as reflected in the Closing Statement.
4.27 Inventory. All of the inventory of the Corporation (including raw materials,
work in progress and finished goods) reflected in the Interim Financial Statements and all
Inventory purchased since the date of the Interim Financial Statements (the “Inventory”)
is, except to the extent reserved against the Inventory consistent with past practice as shown on
the Closing Statement, of such quality to be useable and saleable by the Corporation in the
ordinary course of business.
4.28 Bank Accounts. Section 4.28 of the Disclosure Schedule contains a list
of all of the Corporation’s bank accounts, safe deposit boxes and the Persons authorized to draw
thereon or have access thereto.
4.29 Product Warranty; Product Liability. Except as set forth in Section 4.29 of
the Disclosure Schedule, all products manufactured, serviced, distributed, sold or delivered by
the Corporation in connection with its business have been manufactured, serviced, distributed, sold
and/or delivered in conformity in all material respects with all applicable contractual
commitments, all express warranties and other applicable legal requirements, and the Corporation
does not have any legally binding liability for replacement or repair thereof or other damages in
connection therewith outside of the ordinary course of business, except to the extent of any
reserve for product warranty claims set forth in the Interim Financial Statements or Closing
Statement. Except as would not have a Material Adverse Effect, the Corporation does not have any
liability arising out of any injury to individuals or property as a result of the
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ownership, possession or use of any product manufactured, processed, sold or delivered by the
Corporation.
4.30 Knowledge. As of the Closing, none of Seller, Xxxx Xxxxx nor H.I.G. Capital LLC,
has actual knowledge of any facts or circumstances that would form the basis of, or give rise to,
any claim against the Buyer or its Affiliates under Article VI of this Agreement or otherwise
related to the transactions consummated as a result of this Agreement.
Except for the representations and warranties set forth in this Article IV, (a) neither the
Seller, the Corporation, nor any other Person are making any other representations or warranties,
written or oral, statutory, express or implied, with respect to the Corporation or its business,
operations, assets, stock, liabilities, condition (financial or otherwise) or prospects, and (b)
the Buyer hereby expressly waives any representation or warranty, express, implied, at common law,
by statute or otherwise relating to the accuracy or completeness of any information, data or other
materials (written or oral) heretofore furnished to the Buyer, and the Buyer is solely relying on
the representations and warranties made in this Article IV.
ARTICLE V
POST-CLOSING COVENANTS
5.1 Further Assurances. From and after the Closing, upon the reasonable request of
the other Party, each Party shall execute, acknowledge and deliver all such further documents as
may be required to carry out the transactions contemplated by this Agreement.
5.2 Transfer Taxes. The Buyer will pay, and will indemnify and hold the Seller
harmless against, any real property transfer or gains tax, stamp tax, stock transfer tax, or other
similar Tax imposed on the Corporation as a result of the transactions contemplated by this
Agreement (collectively, “Transfer Taxes”), and any penalties or interest with respect to
the Transfer Taxes. The Seller agrees to cooperate with the Buyer in the filing of any returns
with respect to the Transfer Taxes, including reasonably promptly supplying any information in the
Seller’s possession that is reasonably necessary to complete such returns.
5.3 Litigation Support. In the event and for so long as any Party actively is
contesting or defending against any action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand in connection with (a) any transaction contemplated under this
Agreement, or (b) any fact, situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date
involving the Corporation, each Party will cooperate with the other Party or its counsel in the
contest or defense, make available its personnel, and provide such testimony and access to its
books and records as shall be necessary in connection with the contest or defense, all at the sole
cost and expense of the contesting or defending Party (unless the contesting or defending Party is
entitled to indemnification therefor below).
5.4 Director and Officer Liability and Indemnification. For or covering a period of
six (6) years after the Closing, the Buyer shall not, and shall not permit the Corporation to,
amend, repeal or modify any provision in the Corporation’s certificate of incorporation or bylaws
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(or other organizational documents) relating to the exculpation or indemnification of any
officers and directors (unless required by law), it being the intent of the Parties that the
officers and directors of the Corporation shall continue to be entitled to such exculpation and
indemnification to the full extent of the law. Buyer intends to permit the Seller to remain on the
Corporation’s existing D&O insurance policy through the current term of said policy; provided that
Seller shall be responsible for any deductible payable with respect to its claims. To the extent
the Corporation’s insurer refuses to allow the Seller to continue as an insured on said policy,
Seller shall retain its own separate policy at Seller’s cost.
5.5 Access to Books and Records. From and after the Closing, the Buyer shall, and
shall cause the Corporation to, provide the Seller and its authorized representatives with
reasonable access (for the purpose of examining and copying at the Seller’s expense), during normal
business hours, to the books and records of the Corporation with respect to periods prior to the
Closing Date. Unless otherwise consented to in writing by the Seller, the Buyer shall not permit
the Corporation, for a period of five (5) years following the Closing Date, to destroy, alter or
otherwise dispose of any books and records of the Corporation, or any portions thereof, relating to
periods prior to the Closing Date without first giving reasonable prior written notice to the
Seller and offering to surrender to the Seller such books and records or such portions thereof.
5.6 Employee Benefits. For all purposes under the employee benefit plans of the Buyer
providing benefits after the Closing Date, each employee who is as of the Closing Date an employee
of the Corporation shall be credited with his or her years of service with the Corporation before
the Closing Date, to the same extent as such employee was entitled, before the Closing Date, to
credit for such service under any similar Plans, except to the extent such credit would result in a
duplication of benefits. In addition, and without limiting the generality of the foregoing: (a)
each employee shall be immediately eligible to participate, without any waiting time, in any and
all employee benefit plans sponsored by the Purchaser and its Affiliates for the benefit of
employees (such plans, collectively, the “New Plans”) to the extent coverage under such New
Plan replaces coverage under a comparable Plan in which such employee participated immediately
before the Closing Date (such Plans, collectively, the “Old Plans”), and (b) for purposes
of each New Plan providing medical, dental, pharmaceutical or vision benefits to any employee, the
Buyer shall cause all pre-existing condition exclusions and actively-at-work requirements of such
New Plan to be waived for such employee and his or her covered dependents, and the Buyer shall
cause any eligible expenses incurred by such employee and his or her covered dependents during the
portion of the plan year of the Old Plan ending on the date such employee’s participation in the
corresponding New Plan begins to be taken into account under such New Plan for purposes of
satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such
employee and his or her covered dependents for the applicable plan year as if such amounts had been
paid in accordance with such New Plan. Such New Plans shall contain benefits at least as favorable
as the benefits provided in the Old Plans.
5.7 Investment Intent of the Buyer. The Buyer agrees that the certificates
representing the Stock may bear legends to the effect that the Stock has not been registered under
the Securities Act or such other state securities laws.
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5.8 Responsibility for Filing Tax Returns. The Corporation shall prepare all Tax
Returns that are due to be filed for the Corporation after Closing for the 2006 tax year (the
“Final Tax Returns”). Such Final Tax Returns shall be prepared in accordance with
applicable law and, to the extent not inconsistent with applicable law, the custom and past
practice of the Corporation in preparing its Tax Returns. To the extent a Final Tax Return is an
income Tax Return, the Corporation will deliver such Final Tax Return to the Seller no later than
forty-five (45) days prior to the due date of such Final Tax Return, taking into account applicable
extensions, for the Seller’s review and comment. The Seller shall have the right to review and
comment on each Final Tax Return prior to the filing of such Final Tax Return. The Seller and
Buyer agree to consult and resolve in good faith any issues and comments arising as a result of the
review of each Final Tax Return, and mutually to consent to filing as promptly as possible each
Final Tax Return provided that if the Seller and Buyer are unable to resolve any such issue within
fifteen (15) days after any Final Tax Return is submitted to the Seller, the dispute shall be
submitted to the Independent Accountant for resolution in accordance with Section 1.3. Buyer shall
timely file, or cause the Corporation to file, each Final Tax Return prepared under this Section
6.6(a) and pay, or cause the Corporation to pay, the Tax shown thereon.
5.9 Change of Seller’s Name. Promptly following the Closing, the Seller shall change
its name to a name which does not contain “Halo” or “HA-LO” or similar derivative name and shall
file articles of amendment with the Secretary of State of the State of Delaware to effect such name
change.
ARTICLE VI
SURVIVAL; INDEMNIFICATION
6.1 Survival of Representations, Warranties and Covenants. The representations,
warranties and covenants contained in this Agreement shall survive the Closing as follows:
(a) all covenants contained in this Agreement shall survive the Closing until fully performed;
(b) the representations and warranties contained in Sections 3.1, 3.2,
3.3, 3.5, 4.1, 4.2, 4.3, 4.4, 4.5,
4.10 and 4.22 shall not terminate (collectively, the “Fundamental
Representations and Warranties”);
(c) the representations and warranties contained in Section 4.15 shall terminate and
be of no further force and effect on the date that is thirty (30) days after expiration of the
applicable statute of limitations; and
(d) all other representations and warranties contained in this Agreement shall terminate and
be of no further force and effect on the date that is eighteen (18) months after the Closing Date.
No claim may be made for indemnification hereunder for breach of any representations, warranties or
covenants after the expiration of the survival period applicable to such representation, warranty
and covenant set forth above, except to the extent such claim involves
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fraud committed by the Seller or the Corporation; provided that if the Buyer or the
Seller, as applicable, delivers written notice to the other Party of an indemnification claim for a
breach of the representation, warranties and warranties (stating in reasonable detail the nature
of, and factual and legal basis for, any such claim for indemnification) within the applicable time
periods set forth above, such claim shall survive until resolved or judicially determined.
6.2 Indemnification Provisions for Benefit of the Buyer.
(a) Subject to the terms, conditions and limitations provided herein, in the event the Seller
breaches any of the representations, warranties or covenants contained herein, and, provided that
the Buyer makes a written claim for indemnification against the Seller pursuant to Section
8.1 below within the applicable survival period set forth in Section 6.1, then the
Seller agrees to indemnify the Buyer, the Corporation (post-Closing) and their respective
successors, assigns, directors, officers and agents (the “Buyer Parties”) from and against
any Losses incurred by the Buyer Parties as a result of such breach; provided,
however, that (a) except with respect to the breach of any of the Fundamental
Representations and Warranties or, except to the extent such claim involves fraud committed by the
Seller or the Corporation, the Seller shall not have any obligation to indemnify the Buyer from and
against any such Losses until the aggregate amount of indemnifiable Losses suffered by the Buyer
Parties by reason of all such breaches exceeds $345,000 (the “Deductible”) (after which the
Seller will only be obligated to indemnify the Buyer Parties from and against indemnifiable Losses
in excess of the Deductible); (b) except with respect to the breach of any of the Fundamental
Representations and Warranties, or, except to the extent such claim involves fraud committed by the
Seller or the Corporation, the Seller’s aggregate liability for indemnification under this
Agreement shall not exceed $4,600,000 (the “Cap”) (after which point the Seller will have
no obligation to indemnify Buyer from and against further such Losses); (c) the Seller shall have
no liability to indemnify Buyer Parties for any Losses to the extent reflected or reserved for in
the calculation of Net Working Capital or on the Financial Statements.
(b) Notwithstanding Section 6.2(a) above, provided that the Buyer makes a written claim for
indemnification against any of the Seller pursuant to Section 8.1 below within the
applicable survival period set forth in Section 6.1, the Seller agrees to indemnify the
Buyer Parties from and against any Losses incurred by the Buyer Parties as a result of the matters
described on Schedule 4.9 (“Schedule 4.9 Losses”) without regard to the Deductible.
The Schedule 4.9 Losses shall not be included in determining whether the Deductible has been
utilized or exhausted. The Seller’s aggregate liability for Schedule 4.9 Losses shall not exceed
the Cap, and shall be included in determining whether and the extent to which the Cap has been
exhausted.
6.3 Indemnification Provisions for Benefit of the Sellers. In the event the Buyer
breaches any of its representations, warranties or covenants contained herein, and, provided that
the Seller makes a written claim for indemnification against the Buyer pursuant to Section
8.1 below within the applicable survival period set forth in Section 6.1, then the
Buyer agrees to indemnify the Seller from and against any Losses incurred by the Seller as a result
of such breach; provided, however, that (a) except with respect to the breach of
any of the Fundamental Representations and Warranties or except to the extent such claim involves
fraud by Buyer, the
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Buyer shall not have any obligation to indemnify the Seller from and against any such Losses
until the aggregate amount of indemnifiable Losses suffered by the Seller by reason of all such
breaches exceeds the Deductible (after which the Buyer will only be obligated to indemnify the
Seller from and against indemnifiable Losses in excess of the Deductible); and (b) except with
respect to the breach of any of the Fundamental Representations and Warranties, or except to the
extent such claim involves fraud by Buyer, the Buyer’s aggregate liability for indemnification
under this Agreement shall not exceed the Cap (after which point the Buyer will have no obligation
to indemnify Seller from and against further such Losses).
6.4 Matters Involving Third Parties.
(a) If a claim by a third Person is made against a Party (an “Indemnified Party”)
(other than a claim involving Taxes, which shall be controlled solely by Buyer, and if such party
intends to seek indemnity with respect thereto in accordance with this Article VI, such Indemnified
Party shall promptly notify the other Party (the “Indemnitor”) in writing of such claim,
setting forth in reasonable detail the claim, the facts giving rise to such claim and/or references
to the provisions of this Agreement pursuant to which such claim for indemnification was made (the
“Third Party Notice”)), provided, that the failure to provide a Third Party Notice shall
not relieve or otherwise affect the obligation of the Indemnitor to provide indemnification
hereunder, except to the extent that any Losses directly resulted or were caused by such failure or
the ability of the Indemnitor to mitigate damages or defend against the indemnifiable claim is
prejudiced thereby. The Indemnitor shall have thirty (30) calendar days (or before the date that
is five (5) days before the required response date (provided notice is given at least ten (10) days
prior to the required response date), if the claim requires a response before the expiration of
such thirty (30) day period) after receipt of a Third Party Notice to provide written notice (the
“Control Notice”) to the Indemnified Party that the Indemnitor will undertake to conduct
and control, through counsel of its own choosing and at its own expense, the settlement or defense
thereof, and the Indemnified Party shall cooperate with it in connection therewith. If a Control
Notice is delivered, the Indemnified Party may participate in such settlement or defense through
counsel chosen by such Indemnified Party and paid at its own expense (which expense shall not
constitute part of any Loss that is the subject of indemnity under this Article VI). If
the Indemnitor does not notify the Indemnified Party within thirty (30) calendar days (or before
the date that is five (5) days before the required response date (provided notice is given at least
ten (10) days prior to the required response date), if the claim requires a response before the
expiration of such thirty (30) day period) after receipt of a Third Party Notice that it elects to
undertake the defense thereof, the Indemnified Party shall have the right to undertake, the defense
of the claim, but shall not thereby waive any right to indemnity therefore. Notwithstanding the
foregoing, the Indemnified Party shall upon notice to the Indemnitor assume control, through
counsel of its own choosing, the settlement or defense of an indemnification claim if (i) the
Indemnitor fails to diligently pursue such defense with customary care that a reasonably prudent
person would exercise under the circumstances, (ii) the claim is by any Tax authority or criminal
sanctions may result, (iii) the claimant seeks equitable relief against the Indemnified Party; or
(iv) in the event the Indemnified Party is the Buyer, the third party is seeking damages which
exceed the remaining Escrow Amount. The Party handling such defense shall pursue such defense with
the customary care that a reasonably prudent person would exercise under the circumstances. If the
Indemnitor decides not to undertake conduct and control
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of the settlement or defense of a claim, the Indemnitor may nonetheless participate in such
settlement or defense through counsel chosen by such Indemnitor and paid at its own expense.
(b) In no event shall the Indemnified Party pay or enter into any settlement of any claim or
consent to any judgment with respect to any claim without the prior written consent of the
Indemnitor, which consent shall not be unreasonably withheld or delayed. The Indemnitor may enter
into a settlement or consent to any judgment without the consent of the Indemnified Party so long
as (i) the judgment or consent does not require the Indemnified Parties to admit any wrong-doing,
does not involve any action by any Tax authority, does not provide the third party with any form of
equitable relief against the Indemnified Parties and (ii) an unconditional term of the settlement
or judgment is that the Person or Persons asserting such claim unconditionally release all
Indemnified Parties from all liability with respect to such claim; otherwise, the consent of the
Indemnified Party shall be required in order to enter into any settlement of, or the consent to
entry of a judgment with respect to, any claim.
(c) In no event shall the assumption of control of the settlement or defense of a third party
claim by an Indemnified Party constitute a waiver of any right to indemnity under this Article
VI.
6.5 Determination of Losses. The amount of any Loss subject to indemnification shall
be reduced by the amounts of any Tax Benefits realized by the Indemnified Party on account of such
Loss and any insurance proceeds actually received by the Indemnified Party in connection therewith;
provided that, any Tax Benefit which is a reduction of Taxes shall be deemed realized for purposes
of this Section 6.5 only when it is actually used (and not deferred) on a first-in, first-used
basis, by the Indemnified Party to reduce the Indemnified Party’s Tax liability in the then current
tax year; and provided further that any Tax Benefit which is a refund of Taxes shall be deemed
realized only when it is received in cash or when it is applied to a future Tax liability by the
Indemnified Party in the then current tax year. If the Indemnified Party realizes a Tax Benefit
after an indemnification payment is made to it, the Indemnified Party shall promptly pay to the
Indemnifying Party that made or directed such indemnification payment the amount of such Tax
Benefit at such time or times as and to the extent that such Tax Benefit is so realized by the
Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid
or reduction in the amount of Taxes which otherwise would have been paid. The Indemnified Party
shall seek full recovery under all insurance policies covering any Losses to the same extent as
they would if such Losses were not subject to indemnification hereunder. In the event that an
insurance or other recovery is made by any Indemnified Party with respect to any Losses for which
any such Person has been indemnified hereunder, then a refund equal to the amount of the recovery
shall be made promptly to the Indemnifying Party that made or directed and provided such
indemnification payments to such Indemnified Party.
6.6 Mitigation. The Indemnified Party shall, and is obligated to, use all reasonable
efforts to mitigate to the fullest extent reasonably practicable the amount of any Loss for which
it is entitled to seek indemnification hereunder, and the Indemnifying Party shall not be required
to make any payment to the Indemnified Party for that portion of any such Loss which is caused by
or corresponds to the Indemnified Party’s failure to comply with its mitigation obligations under
this Section 6.6.
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6.7 Exclusive Remedy. The Buyer and the Seller acknowledge and agree that after the
Closing the indemnification provisions in this Article VI shall be the exclusive remedy of
the Buyer and the Seller with respect to the transactions contemplated by this Agreement. The
first source of recovery and recourse for indemnification or other claims of the Buyer and its
Affiliates related to this Agreement shall be from the recovery of amounts under the Escrow
Agreement, subject to the terms of the Escrow Agreement, except with respect to the breach of any
of the Fundamental Representations and Warranties, or except to the extent the breach involves
fraud by the other Party or the Corporation. The Parties may not avoid the limitations on
liability set forth in this Article VI by seeking damages for breach of contract, tort or
pursuant to any other theory or liability. Nothing in this Section 6.7 shall prevent or
prohibit a Party from seeking and/or obtaining specific performance in accordance with Section
8.9.
6.8 Third Party Beneficiaries. Each Indemnified Party is intended to be a third-party
beneficiary of this Article VI.
ARTICLE VII
DEFINITIONS
7.1 Defined Terms. As used herein, the following terms shall have the following
meanings:
“Affiliate” of any particular Person means any other Person controlling, controlled by
or under common control with such particular Person. For the purposes of this definition,
“control” means the possession, directly or indirectly, of the power to direct the management and
policies of a Person whether through the ownership of voting securities, contract or otherwise.
Notwithstanding the foregoing, portfolio companies (other than the Seller) of H.I.G. Capital,
L.L.C. and/or its Affiliates shall not be considered Affiliates of the Seller or the Corporation.
Notwithstanding the foregoing, subsidiaries of Compass Diversified Trust and/or its Affiliates
shall not be considered Affiliates of the Buyer or the Corporation.
“Agreement” has the meaning forth in the Preamble.
“Audited Financial Statements” has the meaning set forth in Section 4.7.
“Business Day” means any day, excluding Saturday, Sunday and any other day on which
commercial banks in New York, New York are authorized or required by law to close.
“Buyer” has the meaning set forth in the Preamble.
“Cap” has the meaning set forth in Section 6.2.
“Closing” has the meaning set forth in Section 2.1.
“Closing Date” has the meaning set forth in Section 2.1.
“Closing Statement” has the meaning set forth in Section 1.3(b)(i).
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“Code” means the Internal Revenue Code of 1986, as amended.
“Confidentiality Agreement” has the meaning set forth in Section 5.8.
“Contract” means any contract or other legally binding agreement (whether written or
oral).
“Corporation” has the meaning set forth in the Recitals.
“Current Assets” means the sum of the book value of (a) accounts receivable; (b) cash
and cash equivalents; (c) inventory; (d) prepaid expenses; (e) current portion of taxes receivables
(and not any deferred tax assets); and (f) and other current assets of the Corporation.
“Current Liabilities” means the sum of the book value of (a) accounts payable; (b)
accrued expenses; (c) taxes payable; and (d) the current portion of long-term debt (excluding the
current portion of any Indebtedness and any Selling Expenses included in determining the Estimated
Purchase Price).
“Deductible” has the meaning set forth in Section 6.2.
“Disclosure Schedule” means the disclosure schedule delivered by the Seller to the
Buyer on the date hereof regarding certain exceptions to the representations and warranties in
Article IV hereof.
“DOJ” has the meaning set forth in Section 5.3(b).
“Employee Bonuses” means the bonus payments, set forth on Statement of Selling
Expenses, payable to employees of the Corporation.
“Environmental Laws” means all federal, state and local statutes and regulations and
enacted and in effect on or prior to the Closing Date, concerning pollution or protection of the
environment, including all those relating to the presence, use, production, generation, handling,
transportation, treatment, storage, disposal, distribution, labeling, testing, processing,
discharge, release, control, or cleanup of any Hazardous Materials, substances or wastes.
“ERISA” has the meaning set forth in Section 4.14(a).
“Escrow Agent” means Xxxxx Fargo Bank, National Association, a national banking
association.
“Escrow Agreement” has the meaning set forth in the Recitals.
“Escrow Funds” means an amount equal to [ten percent 10% of the Estimated Purchase
Price].
“Estimated Net Working Capital” has the meaning set forth in Section 1.3(a).
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“Estimated Purchase Price” has the meaning set forth in Section 1.3(a).
“Financial Statements” has the meaning set forth in Section 4.7.
“FTC” has the meaning set forth in Section 5.3(b).
“Fundamental Representations and Warranties” has the meaning set forth in Section
6.1(a).
“GAAP” means generally accepted accounting principles in effect in the United States
of America from time to time.
“Governmental Authority” means any nation or government, any state, regional, local or
other political subdivision thereof, and any entity or official exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
“Hazardous Material(s)” shall mean any substance that is (i) defined as a hazardous
substance, hazardous material, hazardous waste, biohazardous materials, pollutant, toxic substance,
pesticide, contaminant or words of similar import under any Environmental Law, (ii) a petroleum
hydrocarbon, including crude oil or any fraction thereof, (iii) hazardous, toxic, corrosive,
flammable, explosive, infectious, radioactive, carcinogenic or a reproductive toxicant, or (iv)
regulated pursuant to any Environmental Law.
“HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended,
and the rules and regulations promulgated thereunder, and any successor to such statute, rules or
regulations.
“Indebtedness” means, of any Person at any date, without duplication, all: (a)
indebtedness for borrowed money or funded debt (or any obligation issued in substitution for or in
exchange thereof), (b) liabilities in respect of capitalized leases and liabilities secured by any
Lien on property owned or acquired, (c) notes payable and drafts accepted representing extensions
of credit whether or not representing obligations for borrowed money; (d) any indebtedness or other
amounts owing to Seller or Seller’s Affiliates, (e) any interest, principal, prepayment penalty,
fees, or expenses, to the extent due, or owing in respect of those items listed in clauses (a)
through (d) above, and (f) any guaranty made by the Seller in respect to those items listed in
clauses (a) through (e).
“Indemnified Party” has the meaning set forth in Section 6.4(a).
“Indemnifying Party” has the meaning set forth in Section 6.4(a).
“Independent Auditor” has the meaning set forth in Section 1.3(b)(i).
“Insurance Policies” has the meaning set forth in Section 4.16.
“Intellectual Property” means, collectively, (i) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto, and all patents,
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(ii) all trademarks, all goodwill associated therewith, and all applications, registrations,
and renewals in connection therewith, (iii) moral rights and copyrights in any work of authorship
(including but not limited to databases and software), (iv) all mask works and all applications,
registrations, and renewals in connection therewith, (v) all trade secrets and confidential
business information (including confidential ideas, research and development, know-how, methods,
formulas, compositions, manufacturing and production processes and techniques, technical data,
designs, drawings, specifications, customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals) and (vi) all copies and tangible embodiments thereof
(in whatever form or medium).
“Interim Financial Statements” has the meaning set forth in Section 4.7.
“Inventory” has the meaning set forth in Section 4.27.
“Knowledge” when used with respect to the Seller means the actual knowledge, of Xxxx
Xxxxx, Xxxx Xxxxxxxxx and Xxxxxxxxx Xxxxx, after a reasonable inquiry of other management of the
Corporation.
“Leased Real Property” has the meaning set forth in Section 4.11(b).
“Lien” means any mortgage, pledge, security interest, encumbrance, claim, lien or
charge of any kind (including, but not limited to, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code or comparable law or any jurisdiction in connection
with such mortgage, pledge, security interest, encumbrance, lien or charge).
“Losses” means, with respect to any Person, any actual damage, liability, demand,
claim, action, cause of action, cost, deficiency, penalty, fine, settlement payments, awards,
interest or other actual loss or out-of-pocket expense (including reasonable attorneys’ fees,
accountants’ fees, experts’ fees and disbursements and other out-of-pocket expenses incurred in
connection with investigating, preparing, settling or defending any pending or threatened action,
claim or proceeding (including those brought by third parties)), provided, that the Parties
agree that “Losses” shall not include any punitive damages. Solely for purposes of
calculating Losses under Article VI (but not in determining whether there has been a breach of any
representation, warranty, covenant or agreement in this Agreement) the representations, warranties,
covenants and agreements herein shall be interpreted without giving effect to any limitations or
qualifications as to “materiality” (including, without limitation, the word “material”) or
“Material Adverse Effect.”
“Material Adverse Effect” means a change in the financial condition or business of the
Corporation which change, individually or in the aggregate, has a materially adverse effect on the
assets, financial condition or business of the Corporation taken as a whole. Notwithstanding the
foregoing, any adverse circumstance, change, effect, event, occurrence, state of facts or
development attributable or relating to or arising from any of the following shall not be taken
into account in determining whether there has been or will be a Material Adverse Effect: (a)
conditions generally affecting the industry in which the Corporation participates, the U.S. economy
as a whole or the capital markets in general; (b) compliance with the terms of, or the
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taking of any action required by, this Agreement or approved by the Buyer; (c) the
announcement of the execution of this Agreement or the transactions contemplated by this Agreement;
(d) any change in applicable laws, rules or regulations or the interpretation hereof by any
Governmental Authority; or (e) any action or statement taken or made by the Buyer or its
representatives including, but not limited to, in connection with the Buyer’s discussions with
employees or customers of the Corporations.
“Material Contracts” has the meaning set forth in Section 4.19.
“Material Customer” has the meaning set forth in Section 4.21(b).
“Material Supplier” has the meaning set forth in Section 4.21(a).
“Net Working Capital” shall mean the Current Assets of the Corporation as of the
Closing Date, less the Current Liabilities of the Corporation as of the Closing Date.
“New Plans” has the meaning set forth in Section 5.6.
“Objection Disputes” has the meaning set forth in Section 1.3(b)(i).
“Objection Statement” has the meaning set forth in Section 1.3(b)(i).
“Old Plans” has the meaning set forth in Section 5.6.
“Party” or “Parties” has the meaning set forth in the Preamble.
“Pay Off Letters” means the pay off letters indicating the amount necessary to pay off
the Indebtedness at Closing.
“Pension Plans” has the meaning set forth in Section 4.14(a).
“Permits” has the meaning set forth in Section 4.17.
“Permitted Liens” means (a) statutory liens for current Taxes or other governmental
charges not yet due and payable or the amount or validity of which is being contested in good faith
by appropriate proceedings by the Corporation and for which appropriate reserves have been
established in accordance with GAAP; (b) mechanics’, carriers’, workers’, repairers’ and similar
statutory liens arising or incurred in the ordinary course of business; (c) zoning, entitlement,
building and other land use regulations imposed by any Governmental Authority having jurisdiction
over the Leased Real Property which are not violated by the current use and operation of the Leased
Real Property; (d) covenants, conditions, restrictions, easements and other similar matters of
record affecting title to the Leased Real Property which do not materially impair the occupancy or
use of the Leased Real Property for the purposes for which it is currently used or proposed to be
used in connection with the business of the Corporation; (e) public roads and highways; (f) matters
which would be disclosed by an inspection or accurate survey of each parcel of real property; (g)
liens arising under worker’s compensation, unemployment insurance, social security, retirement and
similar legislation; (h) purchase money
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liens and liens securing rental payments under capital lease arrangements; and (i) other
immaterial liens.
“Person” means an individual, partnership, corporation, business trust, joint stock
corporation, estate, trust, unincorporated association, joint venture, Governmental Authority or
other entity, of whatever nature.
“Plans” has the meaning set forth in Section 4.14(a).
“Purchase Price” has the meaning set forth in Section 1.2.
“Receivables” has the meaning set forth in Section 4.26.
“Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing into the environment (including
the abandonment or discarding of barrels, containers and other receptacles containing any Hazardous
Material).
“Restrictions” means any restriction on the exercise of any rights related to the
Stock, including without limitation, proxies, voting agreements, transfer restrictions, agreements
to sell or purchase and similar items.
“Securities Act” means the Securities and Exchange Act of 1933.
“Seller” has the meaning set forth in the Preamble.
“Selling Expenses” means, as of immediately prior to the Closing, the then unpaid
aggregate of the costs, fees (including attorney fees, accountants fees, investment banking fees,
consent fees and loan prepayment fees) and other expenses incurred or payable by the Corporation
and Seller in connection with this Agreement and the sale of the Stock to Buyer, including, without
limitation, (i) the Employee Bonuses, (ii) all accrued and unpaid management fees and termination
fees under the Corporation’s management services agreement with H.I.G. Capital, L.L.C., if any.
Selling Expenses are set forth in the Statement of Selling Expenses to be delivered by the Seller
prior to Closing.
“Stock” has the meaning set forth in the Recitals.
“Survival Period” has the meaning set forth in Section 6.1.
“Tax Benefit” has the meaning set forth in Section 6.5.
“Taxes” means all federal, provincial, territorial, state, municipal, local, domestic,
foreign or other taxes, imposts, rates, levies, assessments and other charges including, without
limitation, ad valorem, capital, capital stock, customs and import duties, disability, documentary
stamp, employment, estimated, excise, fees, franchise, gains, goods and services, gross income,
gross receipts, income, intangible, inventory, license, mortgage recording, net income, occupation,
payroll, personal property, production, profits, property, real property, recording, rent, sales,
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severance, sewer, social security, stamp, transfer, escheat, transfer gains, unemployment,
use, value added, water, windfall profits, and withholding, together with any interest, additions,
fines or penalties with respect thereto or in respect of any failure to comply with any requirement
regarding Tax Returns and any interest in respect of such additions, fines or penalties and shall
include any transferee liability in respect of any and all of the above.
“Tax Return” means any declaration, estimate, return, report, information statement,
schedule or other document (including any related or supporting information) with respect to Taxes
that is required to be filed with any Governmental Authority, including any amendment thereto.
“Third Party Claim” has the meaning set forth in Section 6.4(a).
“Transfer Taxes” has the meaning set forth in Section 5.2.
“Welfare Plan” has the meaning set forth in Section 4.14(a).
7.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined meanings when used in any
certificates, reports or other documents made or delivered pursuant hereto or thereto, unless the
context otherwise requires.
(b) Terms defined in the singular shall have a comparable meaning when used in the plural, and
vice versa.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Notices. All notices, requests, demands, claims, and other communications
hereunder shall be in writing and shall be delivered by certified or registered mail (first class
postage pre-paid), guaranteed overnight delivery, or facsimile transmission if such transmission is
confirmed by delivery by certified or registered mail (first class postage pre-paid) or guaranteed
overnight delivery, to the following addresses and facsimile numbers (or to such other addresses or
facsimile numbers which such Party shall designate in writing to the other Party):
(a) | if to the Buyer to: | |||
Halo Holding Corporation | ||||
c/o Compass Group Management LLC | ||||
00 Xxxxxx Xxxx, 0xx Xxxxx Xxxxxxxx, XX 00000 |
||||
Attention: I. Xxxxxx Xxxxxxx | ||||
Facsimile: (000) 000-0000 |
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with a copy to: | ||||
Compass Group Management LLC | ||||
24422 Xxxxxxx xx xx xxxxxxx, Xxxxx 000 | ||||
Xxxxxx Xxxxx, Xxxxxxxxxx 00000 | ||||
Attention: Xxxxx X. Xxxx | ||||
Facsimile: (000) 000-0000 | ||||
Paul, Hastings, Janofsy & Xxxxxx LLP | ||||
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000 | ||||
Xxxxx Xxxx, XX 00000 | ||||
Attention: Xxxxxxx X. Xxxxxxx | ||||
Facsimile: (000) 000-0000 | ||||
(b) | if to the Corporation (prior to the Closing) or the Seller: | |||
HA-LO Holdings, LLC | ||||
x/x X.X.X. Xxxxxxx, X.X.X. | ||||
Xxxxxxxx Xxx Xxxxx, Xxxxx 0000 | ||||
Xxxxx, Xxxxxxx 00000 | ||||
Attention: Xxxxxxx X. Xxxxxx and Xxxxx Xxxxxxx | ||||
Facsimile: (000) 000-0000 | ||||
with a copy to: | ||||
XxXxxxxxx Will & Xxxxx LLP | ||||
000 X. Xxxxxxxx Xxxxxxxxx | ||||
Xxxxx 0000 | ||||
Xxxxx, Xxxxxxx 00000 | ||||
Attention: Xxxxxx X. Xxxxxxx, Esq. | ||||
Facsimile: (000) 000-0000 |
8.2 Entire Agreement. This Agreement (including the Exhibits and Schedules attached
hereto) and other documents delivered at the Closing pursuant hereto or thereto, contain the entire
understanding of the Parties in respect of their subject matter and supersede all prior agreements
and understandings (oral or written) between the Parties with respect to such subject matter, other
than the Confidentiality Agreement. The Disclosure Schedule, Exhibits and Schedules constitute a
part hereof as though set forth in full above.
8.3 Expenses. Except as otherwise provided herein, the Parties shall pay their own
fees and expenses, including their own counsel fees, incurred in connection with this Agreement.
8.4 Amendment; Waiver. This Agreement may not be modified, amended, supplemented,
canceled or discharged, except by written instrument executed by the Buyer and the Seller. No
failure to exercise, and no delay in exercising, any right, power or privilege under this Agreement
shall operate as a waiver, nor shall any single or partial exercise of any right,
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power or privilege hereunder preclude the exercise of any other right, power or privilege. No
waiver of any breach of any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be implied from any course of
dealing between the Parties. No extension of time for performance of any obligations or other acts
hereunder or under any other agreement shall be deemed to be an extension of the time for
performance of any other obligations or any other acts.
8.5 Binding Effect; Assignment. The rights and obligations of this Agreement shall
bind and inure to the benefit of the Parties and their respective successors and assigns. Except
as provided in Section 8.9, nothing expressed or implied herein or therein shall be
construed to give any other person any legal or equitable rights hereunder. Except as expressly
provided herein, the rights and obligations of this Agreement may not be assigned by the Parties
hereto without the prior written consent of the other Party; provided, however, the
Buyer may assign its rights under this Agreement for collateral security purposes, without consent,
to any lenders providing financing to the Buyer and/or the Corporation.
8.6 Counterparts. This Agreement may be executed in any number of counterparts
(including by means of facsimile and electronically transmitted portable document format (pdf)
signature pages), each of which shall be an original but all of which together shall constitute one
and the same instrument.
8.7 Interpretation. When a reference is made in this Agreement to an article,
section, paragraph, clause, schedule or exhibit, such reference shall be deemed to be to this
Agreement unless otherwise indicated. The headings contained herein and on the Schedules are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement or the Schedules. Whenever the words “include,” “includes” or “including” are used in
this Agreement, they shall be deemed to be followed by the words “without limitation.”
8.8 Governing Law; Interpretation. This Agreement shall be construed in accordance
with and governed for all purposes by the internal substantive laws of the State of Delaware
applicable to contracts executed and to be wholly performed within such State.
8.9 Specific Performance. Each of the Parties agrees that this Agreement is intended
to be legally binding and specifically enforceable pursuant to its terms and that the Buyer and the
Seller would be irreparably harmed if any of the provisions of the Agreement are not performed in
accordance with their specific terms and that monetary damages would not provide adequate remedy in
such event. Accordingly, in addition to any other remedy to which a non-breaching Party may be
entitled at law, a non-breaching Party shall be entitled to seek injunctive relief without the
posting of any bond to prevent breaches of this Agreement and to specifically enforce the terms and
provisions hereof.
8.10 Arm’s Length Negotiations; Drafting. Each Party herein expressly represents and
warrants to the other Party hereto that before executing this Agreement, said Party has fully
informed itself of the terms, contents, conditions and effects of this Agreement; said Party has
relied solely and completely upon its own judgment in executing this Agreement; said Party has had
the opportunity to seek and has obtained the advice of counsel before executing this Agreement,
which is the result of arm’s length negotiations conducted by and among the Parties
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and their respective counsel. This Agreement shall be deemed drafted jointly by the Parties
and nothing shall be construed against one Party or another as the drafting Party.
8.11 Confidentiality; Publicity. Seller shall receive an advance copy of any press
release or other public announcement or filing made by the Buyer in connection with the execution
of this Agreement. Buyer will provide Seller with such advance copy as soon as practicable so that
Seller has the opportunity to provide Buyer with reasonable comment on such press release or
announcement; provided, however, that Seller will not have any right to cause such press release to
be revised in a manner which would result in Buyer failing to meet any applicable legal
requirements.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have caused this Stock Purchase Agreement to be duly
executed and delivered as of the day and year first above written.
HALO HOLDING CORPORATION | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
HA-LO HOLDINGS, LLC, a | ||||||
Delaware limited liability company | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
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