EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as of
this 8th day of February, 1996, by and among OCEAN BIO-CHEM, INC., a Florida
corporation (the "Parent"), KINBRIGHT, INC., an Alabama corporation
wholly-owned by the Parent (the "Buyer"), KINPAK, INC., a Georgia corporation
(the "Seller"), and KINARK CORPORATION, a Delaware corporation (the
"Shareholder"), the sole shareholder of the Seller.
W I T N E S E T H:
WHEREAS, the Seller is engaged in the business of blending,
packaging and distributing of antifreeze, including (i) blending,
(ii) blow-molding plastic containers, (iii) packaging, and (iv)
distribution (the Seller's activities in pursuing such businesses
are herein referred to collectively as the "Business"); and
WHEREAS, the Shareholder is the record and beneficial holder
of 100% of the issued and outstanding capital stock of the
Seller, and the Shareholder is the lessee under that certain
Lease Agreement with the Industrial Development Board of the City
of Xxxxxxxxxx dated as of September 1, 1979 relating to that
certain chemical packaging plan located in Montgomery, Alabama
(the "Packaging Facility Lease") and that certain Lease Agreement
with the Alabama State Docks Department dated as of October 1,
1979 (the "Dock Facility Lease"); and
WHEREAS, Seller and Shareholder desire to sell, convey,
transfer, assign and deliver to Buyer, the Business and certain
of the assets, properties and operations of the Seller used in
the Business, and Buyer desires to purchase the Business and such
assets, properties and operations, on the terms and conditions
contained in this Agreement; and
WHEREAS, the Parent is the record and beneficial holder of
all the outstanding capital stock of the Buyer and desires that
the Buyer purchase from the Seller the Business and the assets,
properties and operations of the Seller used in the Business.
NOW, THEREFORE, in consideration of the mutual benefits to
be derived from this Agreement, the parties hereto hereby agree
as follows:
1. SALE AND PURCHASE OF ASSETS.
1.1 Sale of Assets to Buyer. Upon the terms and
subject to the conditions herein set forth, at the Closing
referred to in Section 3, Seller and Shareholder shall sell,
transfer, assign, convey and deliver to Buyer, and Buyer shall
purchase and acquire from Seller and Shareholder all of the
right, title and interest that the Seller and Shareholder possess
and have the right to transfer in and to (a) the Packaging
Facility Lease and the Dock Facility Lease, together with all
improvements, fixtures and fittings on the real property subject
to such leases, and all easements, rights of way, and other
appurtenances thereto, (b) tangible personal property of Seller
(such as machinery, equipment, inventories of raw materials and
supplies, manufactured and purchased parts, goods and processed
and finished goods, furniture, automobiles, trucks, tractors,
trailers and tools), including, but not limited to, all of the
personal property assets of the Seller set forth on Schedule 1.1,
(c) intellectual property of the Seller, including trademarks,
trade names and patents, goodwill associated therewith, licenses
and sublicenses granted and obtained with respect thereto, and
rights thereunder, remedies against infringements thereof, and
rights to protection of interests therein under the laws of all
jurisdictions, (d) leases and subleases of the Seller, and rights
thereunder, (e) agreements, contracts, indentures, mortgages,
instruments, security interests, guarantees, or other similar
arrangements of Seller, and rights thereunder, (f) claims,
deposits, prepayments, refunds, causes of action, choses in
action, rights of recovery, rights of setoff, and rights of
recoupment of the Seller (excluding any such item relating to the
payment of taxes), (g) franchises, approvals, permits, licenses,
orders, registrations, certificates, variances of Seller, and
similar rights obtained from governments and governmental
agencies by Seller, (h) books, records, ledgers, files,
documents, correspondence, lists, architectural plans, drawings
and specifications, creative materials, advertising and
promotional materials, studies, reports, and other printed or
written materials of Seller (collectively, the "Assets"). The
Assets shall not include, (i) the corporate charter,
qualifications to conduct business as a foreign corporation,
arrangements with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals,
minute books, stock transfer books, or other documents relating
to the organization, maintenance, and existence of the Seller and
Shareholder as corporations, (ii) any cash belonging to the
Seller or the Shareholder as of the Closing Date (as hereinafter
defined), (iii) any accounts, notes or other receivables
belonging to the Seller or Shareholder as of the Closing Date, or
(iv) any of the rights of the Seller or Shareholder under this
Agreement (or any side arrangement between the Seller and
Shareholder on the one hand and the Buyer and Parent on the other
hand entered into on or after the date of this Agreement).
Seller and Shareholder shall have the right to repair or replace,
in the ordinary course of business prior to the Closing Date, any
of the personal property Assets listed on Schedule 1.1 attached
hereto.
1.2 Method of Conveyance. The sale, transfer,
conveyance and assignment by the Seller and Shareholder of the
Assets to the Buyer and Parent in accordance with Section 1.1
hereof shall be effected on the Closing Date by (a) the Seller's
execution and delivery to the Buyer of a xxxx of sale in the form
attached hereto as Exhibit A (the "Xxxx of Sale") and (b) the
Shareholder's execution and delivery to the Buyer of assignment
and assumption agreements relating to the Packaging Facility
Lease and the Dock Facility Lease (as more fully described in
Section 2.4), and (c) the assignment, as necessary, of the
Scheduled Contracts listed on Schedule 4.7(a). At the Closing,
all of the Assets shall be transferred by the Seller to the Buyer
free and clear of any and all liens, encumbrances, mortgages,
security interests, pledges, claims, equities and other
restrictions or charges of any kind or nature whatsoever
(collectively, "Liens"), except Permitted Liens (as hereinafter
defined).
2. PURCHASE PRICE.
2.1 Amount and Payment of Consideration. The purchase
price of the Assets shall be One Million Eight Hundred Ninety
Thousand and No/100 Dollars ($1,890,000.00) (the "Purchase
Price"). The Purchase Price shall be paid as follows:
(a) An xxxxxxx money deposit of Twenty Thousand
and No/100 Dollars ($20,000.00) (the "Xxxxxxx Money Deposit") to
be deposited with an escrow agent acceptable to the parties
hereto upon the execution of this Agreement, which Xxxxxxx Money
Deposit shall be paid to Seller and Shareholder at Closing (as
hereinafter defined) as a credit against the Purchase Price, or
returned to the Buyer or paid to the Seller upon termination of
this Agreement pursuant to the terms hereof; and
(b) Eight Hundred Eighty Thousand and No/100
Dollars ($880,000.00) in cash or immediately available funds at
Closing; and
(c) The assumption of the Packaging Facility
Lease, including assumption of the Shareholder's obligation to
satisfy the indebtedness under the First Mortgage Industrial
Revenue Bonds ("IRB") associated with such lease and the option
to purchase the real property subject to such lease; provided,
however, that the principal balance of the obligations under the
IRB's shall not exceed Nine Hundred Ninety Thousand and No/100
Dollars ($990,000.00), nor shall the purchase option under the
Packaging Facility Lease exceed One Thousand and No/100 Dollars
($1,000.00).
2.2 Prorations. The following items shall be adjusted
on a pro rata basis between Seller and Buyer as of the Closing
Date: (a) 1996 real estate and personal property ad valorem
taxes; (b) charges for electricity, gas, water and sewer and
other utilities to be based on projections from most recent
invoices or on recent meter readings; (c) employee payroll
through the Closing Date; and (d) lease payments (including
principal and interest) through the Closing Date.
2.3 Assumed Liabilities. At the Closing, Buyer or
Parent shall assume and agree to satisfy and discharge as the
same shall become due only those liabilities and obligations of
the Seller and Shareholder set forth on Schedule 2.3 hereto (the
"Assumed Liabilities"). The obligations of Seller and
Shareholder under the Assumed Liabilities assumed hereunder and
under the Assignment and Assumption Agreements (as defined in
Section 2.4) are hereby independently assumed by Buyer and
Parent, subject to the representations, warranties, covenants and
conditions made herein as to that obligation. Except as
expressly set forth in the first sentence of this Section 2.3 and
except for Scheduled Contracts assigned to Buyer in accordance
with Section 4.7 of this Agreement, the Buyer and Parent shall
not assume or otherwise be responsible at any time for any
liability, obligation, debt or commitment of the Seller and
Shareholder, whether absolute or contingent, accrued or
unaccrued, asserted or unasserted, or otherwise. The Seller
acknowledges and agrees that the Buyer has no obligation to
employ any current or former employees of the Seller following
the Closing and is not assuming any liability, cost or expense
with respect thereto. In furtherance and not in limitation of
the foregoing the Seller understands and agrees that the Buyer
may decide in its sole and absolute discretion to employ certain
employees of the Seller following the Closing with such benefits
(including vacation, pension, insurance and severance benefits)
as the Buyer may adopt from time to time in its sole and absolute
discretion and no such act of the Buyer shall be construed as an
assumption by the Buyer of any of such obligations of the Seller.
The Seller shall pay, satisfy and discharge (or make adequate
provision therefor to Buyer's satisfaction) as the same shall
become due all the liabilities, obligations, debts and
commitments of the Seller not specifically assumed by the Buyer
hereunder. The Buyer, Shareholder, Seller and Parent intend that
the assumption of the Assumed Liabilities by Buyer and Parent
shall not expand the rights or remedies of third parties against
the Buyer or Parent as compared to the rights and remedies which
such parties would have had against the Seller had this Agreement
not been consummated.
2.4 Method of Buyer's Assumption of Assumed
Liabilities. At the Closing, the Buyer shall assume, and shall
agree to satisfy and discharge as the same shall become due, (i)
the IRB's, (ii) all of Shareholder's liabilities and obligations
under the Packaging Facility Lease and the Dock Facility Lease,
and (iii) any other Assumed Liabilities, and in connection
therewith the Shareholder and the Buyer shall execute and deliver
an assignment and assumption agreement, substantially in the
forms attached hereto as Exhibit B and Exhibit C (the "Assignment
and Assumption Agreements"). Each assignment and assumption
shall have been approved in writing by the Industrial Development
Board of the City of Xxxxxxxxxx and the Alabama State Docks
Department, as appropriate, prior to the Closing. The assumption
shall be approved without modification of the Assumed Liabilities
and the principal balance of the IRB's shall not exceed Nine
Hundred Ninety Thousand and No/100 Dollars ($990,000.00) nor
shall the purchase option under the Packaging Facility Lease
exceed One Thousand and No/100 Dollars ($1,000.00).
2.5 Purchase Price Allocations. Each of the parties
hereto agrees that the Purchase Price shall be allocated among
the Assets purchased pursuant to this Agreement, as determined by
Buyer and agreed to by Seller. Such allocation shall be set
forth on Schedule 2.5 and attached hereto at Closing. Each of
the parties agrees (a) to utilize the foregoing allocations for
tax purposes, including in all filings with the Internal Revenue
Service, and (b) not to take any action inconsistent with such
allocation.
3. CLOSING.
3.1 Date of Closing. Subject to the terms and
conditions set forth herein, the closing of the transactions
contemplated hereby (the "Closing") shall be held at 10:00 a.m.
at the offices of Xxxxxx & Xxxxx, P.A., located at 000 X.X. Xxxxx
Xxxxxx, Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, on or before
Thursday, February 15, 1996, or within fourteen (14) days
thereafter if all information and consents are not available
prior thereto, provided that all conditions to the Closing have
been satisfied, or at such other time, date and place as agreed
among the parties hereto. The date on which the Closing shall
occur is referred to herein as the "Closing Date".
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE
SHAREHOLDER.
In order to induce the Parent and the Buyer to enter
into this Agreement and to consummate the transactions
contemplated hereby, the Seller and the Shareholder, jointly and
severally, hereby represent and warrant to the Parent and the
Buyer, as of the date hereof and as of the Closing Date, as
follows:
4.1 Organization and Authority. The Seller is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Georgia. Seller has the full
power and authority to own, operate and lease its properties and
assets, to carry on its business as it is now being conducted,
and to execute, deliver and perform its obligations under this
Agreement and consummate the transactions contemplated hereby.
The Seller has delivered to the Buyer complete and correct copies
of its Articles of Incorporation and By-laws, each as amended to
date. Seller is duly qualified to do business as a foreign
corporation and in good standing in the State of Alabama.
4.2 Authorization of Agreement. The execution,
delivery and performance by the Seller and Shareholder of this
Agreement and of each and every document and instrument
contemplated hereby and the consummation of the transactions
contemplated hereby and thereby have been duly and validly
authorized and approved by all necessary corporate action of the
Seller and Shareholder. This Agreement has been duly executed
and delivered by the Seller and Shareholder and constitutes (and,
when executed and delivered, each such other document and
instrument to which Seller and/or Shareholder is a party will
constitute) a valid and binding obligation of the Seller and/or
Shareholder, as the case may be, enforceable against the Seller
and/or Shareholder in accordance with its terms.
4.3 Non-Contravention; Consents. The execution and
delivery by the Seller and Shareholder of this Agreement and the
consummation by the Seller and Shareholder of the transactions
contemplated hereby, and compliance by the Seller and Shareholder
with any of the provisions hereof, will not (i) conflict with or
result in a breach of any provision of the Articles of
Incorporation or By-laws of the Seller and Shareholder, (ii)
result in the breach of, or conflict with, any of the terms and
conditions of, or constitute a default (with or without the
giving of notice or the lapse of time or both) with respect to,
or result in the cancellation or termination of, or the
acceleration of the performance of any obligations or of any
indebtedness under any contract, agreement, lease, commitment,
indenture, mortgage, note, bond, license or other instrument or
obligation to which the Seller is a party or by which the Seller
or any of the Assets may be bound or affected, (iii) result in
the creation of any Lien upon any of the Assets, or (iv) to
Seller's and Shareholder's knowledge, violate any law or any rule
or regulation of any administrative agency or governmental body,
or any order, writ, injunction or decree of any court,
administrative agency or governmental body to which the Seller or
any of the Assets may be subject, the violation of which would
have a material adverse effect on the consummation of the
transactions contemplated hereby or the Buyer's operation of the
Business or use of the Assets subsequent to the Closing. Except
as set forth in Schedule 4.3 hereto, to Seller's and
Shareholder's knowledge, no approval, authorization, consent or
other order or action of, or filing with or notice to any court,
administrative agency or other governmental authority or any
other person is required for the execution and delivery by the
Seller of this Agreement or the consummation by it of the
transactions contemplated hereby.
4.4 Ownership of Assets.
(a) The Seller has good, valid and marketable
title to each and every tangible and intangible personal property
and assets which are included in the Assets, and valid leasehold
interests in all leases of real property and leases of tangible
personal property included in the Assets, free and clear of any
liens, other than Permitted Liens (as defined below). At the
Closing, the Seller will transfer to Buyer good, valid and
marketable title to the Assets, free and clear of any and all
Liens, other than Permitted Liens. For purposes hereof, the term
"Permitted Liens" shall mean only those liens set forth on
Schedule 4.4(a).
(b) The Seller has not sold, transferred,
assigned or conveyed any of its right, title and interest, or
granted or entered into any option to purchase or acquire any of
its right, title or interest, in and to any of the Assets or the
Business. No third party has any option or right to acquire the
Business or any of the Assets.
(c) Seller shall provide Buyer with a copy of the
survey of each parcel of real property leased by Seller which is
currently in its possession.
4.5 Existing Condition. The Seller has delivered to
the Buyer true and complete copies of the Seller's balance sheet
as of December 31, 1994 and December 31, 1995, together with the
related statements of income and cash flows for the years ended
December 31, 1994 and 1995. Since December 31, 1995, except as
otherwise disclosed to Buyer in writing, there has not been with
respect to the Seller:
(a) any material adverse change in the Assets,
Assumed Liabilities or the Business of the Seller; or
(b) any damage, destruction or loss, whether
covered by insurance or not, materially and adversely affecting
the Business or Assets of the Seller or any sale, transfer or
other disposition of the Assets other than in the ordinary course
of business.
4.6 Litigation. There is no litigation, suit,
proceeding, action, at law or in equity, or to Seller's and
Shareholder's knowledge, any claim or investigation, pending, or
to Seller's and Shareholder's knowledge, threatened, against, or
affecting in any way the Assets, the Seller or the Seller's
ability to own or operate the Business, or which question the
validity of this Agreement or challenge any of the transactions
contemplated hereby or the use of the Assets after the Closing
Date by the Buyer, and (b) neither the Seller nor the Shareholder
nor any of the Assets is subject to any judgment, order, writ,
injunction or decree of any court or any federal, state,
municipal or other governmental authority, department,
commission, board, bureau, agency or other instrumentality.
4.7 Contracts.
(a) Schedule 4.7(a) contains a true and complete
list of all material contracts and agreements related to or
involving the Business, the Assets or the Assumed Liabilities or
by which any of the Assets is subject or bound in any respect,
including, without limiting the generality of the foregoing, any
and all: contracts and agreements for the purchase, sale or
lease of inventory, goods, materials, equipment, hardware,
supplies or other personal property; contracts for the purchase,
sale or lease of real property; contracts and agreements for the
performance or furnishing of services; joint venture, partnership
or other contracts, agreements or arrangements involving the
sharing of profits; employment agreements; and agreements
containing any covenant or covenants which purport to limit the
ability or right of the Seller or any other person or entity to
engage in any aspects of the business related to the Assets or
compete in any aspect of such business with any person or entity
(collectively, the "Scheduled Contracts"). As used herein, the
terms "contract" and "agreement" mean any contract, agreement,
commitment, arrangement, understanding and promise whether
written or oral. A complete and accurate copy of each written
Scheduled Contract has been delivered or made available to the
Buyer or, if oral, a complete and accurate summary thereof has
been delivered to the Buyer. Except as set forth on Schedule
4.7(a), (a) the Scheduled Contracts are valid, binding and
enforceable in accordance with their respective terms, are in
full force and effect and were entered into in the ordinary
course of business on an "arms-length" basis and consistent with
past practices (b) the Seller is not in breach or default of any
of the Scheduled Contracts and no occurrence or circumstance
exists which constitutes (with or without the giving of notice or
the lapse of time or both) a breach or default by the other party
thereto and (c) the Seller has not been notified or advised by
any party to a Scheduled Contract of such party's intention or
desire to terminate or modify any such contract or agreement.
The Seller has not granted any Lien on any Scheduled Contract
included in the Assets.
(b) All Scheduled Contracts included in the
Assets will be fully and validly assigned to the Buyer as of the
Closing.
4.8 Condition of Purchased Assets. Each of the Assets
to be purchased by Buyer pursuant to this Agreement is in good
operating condition, ordinary wear and tear accepted.
4.9 Employee Benefit Plans.
(a) The Seller does not maintain or contribute
to, and is not a party to, any employee benefit plan as defined
in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or any other written, unwritten,
formal or informal plan or agreement involving direct or indirect
compensation, other than workers' compensation, unemployment
compensation and other government programs, under which the
Seller has any present or further obligation or liability with
respect to employees of the Seller (collectively, the "Employee
Plans").
(b) For each employee of the Seller, the Seller
or Shareholder has either paid or adequately provided for the
payment of all accrued benefits such employees are entitled to
receive as of the Closing Date, including, without limitation,
all accrued vacation, sick or personal time and benefits due
under any Employee Plans. All contributions (including all
employer contributions and employee salary reduction
contributions) required to have been made under any of the
Employee Plans to any funds or trusts established thereunder or
in connection therewith have been made by the due date thereof
(including any valid extension), and all contributions for any
period ending on or before the Closing Date which are not yet due
will have been paid or accrued on or prior to the Closing Date.
4.10 Warranties. Schedule 4.10 sets forth a complete
and correct copy of all of the Seller's standard warranties
(collectively, the "Warranties" or individually a "Warranty")
extended by the Seller to the customers of the Seller. Seller
has received no notice of any Warranty claims outstanding against
the Seller which will or might result in any Lien on the Assets.
4.11 Trademarks, Patents, Etc. Set forth in Schedule
4.11 is a true and complete list and brief description of all of
Seller's rights to any patents, trademarks, trade names, brand
names, service marks, service names, copyrights, inventions or
licenses and rights and applications with respect to the
foregoing included in the Assets (collectively, the "Marks and
Patents"). All the Marks and Patents are subsisting and have not
been abandoned, and there are no prior claims (of which Sellers
have notice), controversies, lawsuits or judgments which affect
the validity of the Seller's rights to the Marks and Patents nor
are there any legal proceedings, claims or controversies
instituted, pending or, to the best knowledge of the Seller and
the Shareholders, threatened with respect to any of the Marks and
Patents, or which challenge the Seller's rights, title or
interest in respect thereto. Except as set forth on Schedule
4.11, (a) none of the Marks and Patents are the subject of any
outstanding assignments, grants, licenses, liens, obligations or
agreements, whether written, oral or implied, (b) all required
renewal fees, maintenance fees, amendments and/or other filings
or payments which are necessary to preserve and maintain the
registered Marks and Patents have been filed and/or made, and (c)
the Seller owns or has the right to use all Marks and Patents and
the like necessary to conduct its Business as presently conducted
and without conflict with any patent, trade name, trademark or
the like of any other person or entity.
4.12 Taxes. Seller has duly filed all federal, state
and local tax returns and reports required by applicable law to
be filed by it and has paid, or made provision for payment
thereof, all such taxes and other governmental charges upon its
Assets, properties, sales, income, franchises and licenses, such
returns are accurate and complete, all monies required to be
withheld by the Seller from its employees for income taxes,
social security taxes and unemployment insurance taxes have been
collected or withheld and either paid to the appropriate
governmental agency or set aside in one or more accounts, or
adequately accrued, reserved and entered upon the books of the
Seller and no tax lien will attach to any of the Assets and there
are no tax liens upon the Assets or disputes or claims asserted
for taxes upon the Seller.
4.13 Labor Matters. Schedule 4.13 sets forth a true
and complete list of all key employees of Seller, together with a
brief summary of their titles, duties, terms of employment and
compensation arrangements. Seller is not a party to any
collective bargaining or similar labor agreements, no such
agreement determines the terms and conditions of employment of
any employee of Seller, no collective bargaining or other labor
agent has been certified as a representative of any of the
employees of the Seller, and no representation campaign or
election is now in progress with respect to any of the employees
of the Seller. To Seller's and Shareholder's knowledge, no
employee has indicated that such employee does not intend to
accept employment by Buyer if offered.
4.14 Accounts Payable. At Closing, Seller shall
deliver to Buyer a complete list of Seller's accounts payable as
existing on the Closing Date, which shall be attached hereto as
Schedule 4.14. All of Seller's accounts payable are properly
reflected on the books and records of the Seller and were
incurred by Seller in the ordinary course of the Business.
Seller and Shareholder shall be solely responsible for paying
all accounts payable incurred prior to the Closing Date.
4.15 Accuracy of Documents and Information. The
information provided to the Buyer by the Seller and Shareholder
with respect to the Seller, the Assets and the Business,
including the representations and warranties made in this
Agreement and in the Schedules attached hereto, and all other
information provided to the Buyer in connection with its
investigation of the Seller, does not (and will not at the
Closing Date) contain any untrue statement of a material fact and
does not omit (and will not omit at the Closing Date) to state
any material fact necessary to make the statements or facts
contained herein or therein not misleading.
4.16 Environmental Matters. The Seller has complied
and is in compliance with all federal, state and local
environmental, safety, health and sanitation laws, rules,
regulations and ordinances. The Seller has stored, handled,
used, emitted, released, discharged and disposed of all
substances (including petroleum products) used in its operations
and wastes or by-products from its operations, whether hazardous
or not, in a manner which complies with all environmental,
safety, health and sanitation laws, rules, regulations, and
ordinances. No such substances, products or wastes have been
spilled, released, discharged or disposed of on or under any
property owned or leased by the Seller in any material quantity
that could give rise to any liability of Buyer, Seller or
Shareholder. The Seller has obtained and has complied with all
permits, registrations and other governmental consents necessary
for the use, storage, treatment, transportation, release,
emission and disposal of all raw materials, by-products, wastes,
or other substances used, produced or otherwise relating to its
operations. The Seller has no liability with respect to the
clean up of any treatment, storage or disposal site or facility
to which it has disposed of any waste or any other substance.
The Seller has no information to the effect that any site at
which it has disposed any wastes or other substances has been or
is under investigation by any local, state or federal
governmental body, authority or agency. All materials leaving
the Seller's facilities are as clean of waste and hazardous
materials as required by law and are disposed of as required by
law.
5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER.
In order to induce the Buyer to enter into this
Agreement and to consummate the transactions contemplated hereby,
the Shareholder hereby represents and warrants to the Buyer as
follows:
5.1 Authority. Shareholder has the full power and
authority to execute, deliver and perform this Agreement. This
Agreement constitutes the legal, valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with
its terms.
5.2 Non-Contravention. Neither the execution and
delivery of this Agreement by Shareholder nor the consummation of
the transactions contemplated hereby will violate, result in a
default under, or require the consent or approval of any party
to, any contract or agreement to which Shareholder is a party or
otherwise bound or affected, except for the consents set forth in
Schedule 4.3.
6. REPRESENTATIONS AND WARRANTIES OF BUYER AND PARENT.
In order to induce the Seller to enter into this
Agreement and to consummate the transactions contemplated hereby,
the Buyer and the Parent, jointly and severally, hereby represent
and warrant to the Seller, as of the date hereof and as of the
Closing Date, as follows:
6.1 Buyer's and Parent's Organization. Each of the
Buyer and the Parent is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction
of incorporation. Each of the Buyer and the Parent has all
requisite power and authority to own and operate and lease its
properties and assets, to carry on its business as it has been
and is now being conducted and to execute, deliver and perform
its obligations under this Agreement and consummate the
transactions contemplated hereby. Buyer has delivered to Seller
complete and correct copies of its Articles of Incorporation and
Bylaws, each as amended to date.
6.2 Authorization of Agreement. The execution,
delivery and performance by each of the Buyer and the Parent of
this Agreement and of each and every agreement and document
contemplated hereby and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action of the Buyer and the Parent. This
Agreement has been duly and validly executed and delivered by the
Buyer and the Parent and constitutes (and, when executed and
delivered, each such other agreement and document will
constitute) a valid and binding obligation of the Buyer and the
Parent, as the case may be, enforceable against the Buyer and the
Parent, as the case may be, in accordance with its terms.
6.3 Non-Contravention; Consents. Neither the
execution and delivery by the Buyer or the Parent of this
Agreement nor the consummation by the Buyer or the Parent of the
transactions contemplated hereby, nor compliance by the Buyer or
the Parent with any of the provisions hereof, will (i) conflict
with or result in a breach of any provision of the Articles or
Certificate, as the case may be, of Incorporation or by-laws of
the Buyer or the Parent, (ii) result in the breach of, or
conflict with, any of the terms and conditions of, or constitute
a default (with or without the giving of notice or the lapse of
time or both) with respect to, or result in the cancellation or
termination of, or the acceleration of the performance of any
obligations or of any indebtedness under any contract, agreement,
commitment, indenture, mortgage, note, bond, license or other
instrument or obligation to which the Buyer or the Parent is now
a party or by which the Buyer or the Parent or their respective
properties or assets may be bound or affected (other than such
breaches, conflicts and defaults as shall have been waived at or
prior to the Closing or which would not individually or in the
aggregate have a material adverse effect on the consummation of
the transactions contemplated hereby), (iii) result in the
creation of any Lien upon any or all of the properties, assets or
business of the Buyer or the Parent, or (iv) violate any law or
any rule or regulation of any administrative agency or
governmental body, or any order, writ, injunction or decree of
any court, administrative agency or governmental body to which
the Buyer or the Parent may be subject, the violation of which
would have a material adverse effect on the consummation of the
transactions contemplated hereby. No approval, authorization,
consent or other order or action of, or filing with or notice to
any court, administrative agency or other governmental authority
or any other person is required for the execution and delivery by
the Buyer or the Parent of this Agreement or consummation by the
Buyer of the transactions contemplated hereby (other than such
consents as shall have obtained at or prior to the Closing).
6.4 Litigation. There is no litigation, suit,
proceeding, action, claim or investigation, at law or in equity,
pending or to the Buyer's or the Parent's knowledge, threatened,
against or affecting in any way, the Buyer's or the Parent's
ability to perform its obligations as contemplated by this
Agreement.
7. FURTHER AGREEMENTS OF THE PARTIES.
7.1 Operation of the Business. From and after the
date of this Agreement until the Closing Date, except otherwise
consented to in writing by the Buyer, the Seller shall operate
its Business in the same manner as presently conducted and only
in the ordinary and usual course and consistent with past
practice and in compliance with (i) all laws known to Seller and
(ii) all material leases, contracts, commitments and other
agreements, and all licenses, permits, and other instruments,
relating to the operation of the Business, and will use all
commercially reasonable efforts to preserve intact its present
business organization and to keep available the services of all
employees, representatives and agents. The Seller shall use
commercially reasonable efforts, consistent with past practices,
to promote the Business and to maintain the goodwill and
reputation associated with the Business, and shall not take or
omit to take any action which causes, or which is likely to
cause, any material deterioration of the Business or the Seller's
relationships with suppliers or customers. Without limiting the
generality of the foregoing, (a) the Seller will maintain all of
the Assets, tangible or intangible, in substantially the same
condition and repair as such Assets are maintained as of the date
hereof, ordinary wear and tear excepted; (b) the Seller shall not
sell, transfer, pledge, lease or otherwise dispose of any of the
Assets, other than in the ordinary course of business; (c) the
Seller shall not amend, terminate or waive any material right in
respect of the Assets or the Business (including, without
limitation, any Assumed Liabilities), or do any act, or omit to
do any act, which will cause a material breach of any contract,
agreement, commitment or obligation by it (including, without
limitation, any Assumed Liabilities); (d) the Seller shall
maintain its books, accounts and records in accordance with good
business practice and generally accepted accounting principles
consistently applied; (e) the Seller shall not engage in any
activities or transactions outside the ordinary course of
business; and (f) the Seller shall not increase any existing
employee benefits, establish any new employee plan or amend or
modify any existing Employee Plans, or otherwise incur any
obligation or liability under any employee plan materially
different in nature or amount from obligations or liabilities
incurred in connection with the Employee Plans.
7.2 Consents; Assignment of Agreements. Seller shall
use commercially reasonable efforts to obtain at the earliest
practicable date, by instruments in form and substance reasonably
satisfactory to Buyer, all consents and approvals of third
parties (whether or not listed on Schedule 4.3) required for the
consummation by the Seller of the transactions contemplated
hereby, including, without limitation, for the transfer to Buyer
of the Assets, without any material conditions adverse to Buyer
(unless consented to by Buyer).
7.3 No Discussions. Neither the Seller nor the
Shareholder shall enter into any negotiations or discussions with
any third party with respect to the sale or lease of the Assets
or the Business, or the sale of any capital stock of the Seller,
until the earlier to occur of the (a) Closing Date or (b)
termination of this Agreement.
7.4 Employee Matters. No later than five (5) days
prior to the Closing Date, the Seller will furnish to the Buyer a
list of those employees of the Seller who, to Seller's knowledge,
will not be available for employment by the Buyer after the
Closing. Commencing five (5) days prior to the Closing Date, the
Seller shall permit the Buyer to contact and make arrangements
with the Seller's other employees for the purpose of assuring
their employment by the Buyer after the Closing and for the
purpose of ensuring the continuity of the Business, and the
Seller agrees not to discourage any such employees from being
employed by or consulting with the Buyer. Nothing herein shall
obligate the Buyer to employ or otherwise be responsible for any
of the Seller's employees.
7.5 Notice Regarding Changes. The Seller shall
promptly notify the Buyer in writing of any change in facts and
circumstances that could render any of the representations and
warranties made herein by the Seller inaccurate or misleading
upon the occurrence of the fact or circumstance in question.
7.6 Notification to Customers. At the Buyer's request
and in a form approved by the Buyer, the Seller agrees to notify
all of its prior and present customers of the Business, either
separately or jointly with the Buyer, of the Buyer's purchase of
the Assets hereunder and that all further communications or
requests by such customers with respect to the Business and
Assets shall be directed to the Buyer.
7.7 Brokers and Agents. The Seller and the
Shareholder agree that the Buyer shall not be responsible for any
fees, expenses, commissions or costs of any business broker,
agent or finder utilized by the Seller or the Shareholder in
respect of the transactions contemplated hereby. The Buyer
represents that it has not used any business broker, agent or
finder in respect of the transactions contemplated hereby other
than Seller's.
7.8 Change in Name. At or immediately subsequent to
the Closing, Seller shall change its name to a name that does not
include the words "Kinpak".
8. CONDITIONS PRECEDENT TO CLOSING.
8.1 Conditions Precedent to the Obligations of Seller.
Seller's obligation to consummate the transactions contemplated
by this Agreement shall be subject to the fulfillment, at or
prior to Closing, of each of the following conditions (any or all
of which may be waived in writing, in whole or in part, by the
Seller; it being understood and agreed that the waiver by the
Seller of any such conditions shall not affect the obligations of
the Buyer under Section 10.2 hereof):
(a) Buyer shall have delivered the Purchase
Price.
(b) Buyer shall have performed and complied in
all material respects with each obligation and covenant required
by this Agreement to be performed or complied with by it on or
prior to the Closing Date.
(c) The representations and warranties of the
Buyer and the Parent contained herein shall be true and correct
in all material respects at and as of the Closing Date as if made
at and as of such time.
(d) The Buyer shall have delivered to the Seller
an Assignment and Assumption Agreement for each of the Packaging
Facility Lease and the Dock Facility Lease executed by the
Parent.
(e) No action, suit or proceeding by any person
shall have been commenced and still be pending, no investigations
by any governmental or regulatory authority shall have been
commenced and still be pending, and no action, suit or proceeding
by any person shall have been threatened against Buyer or Parent,
seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the validity or legality of
any such transactions.
(f) The Buyer and the Parent shall have delivered
to the Seller a certificate dated the Closing Date signed by the
President of the Buyer and the Parent as to the satisfaction of
the conditions contained in Sections 8.1(b) and 8.1(c) hereof,
and all such other certificates and documents as the Seller and
its counsel shall have reasonably requested.
(g) Seller shall have been provided with
certified copies of resolutions of the Boards of Directors of
Buyer and Parent and of the shareholders of Buyer (if necessary),
authorizing this Agreement and the consummation of the
transactions contemplated hereunder.
(h) Seller shall have received an opinion from
counsel to Buyer as to certain corporate matters in form and
substance satisfactory to Seller's counsel.
8.2 Conditions Precedent to the Obligations of Buyer.
The Buyer's obligation to consummate the transactions
contemplated by this Agreement shall be subject to the
fulfillment, at or prior to Closing, of each of the following
conditions precedent (any or all of which may be waived in
writing, in whole or in part, by the Buyer; it being understood
and agreed that the waiver by the Buyer of any such conditions
shall not affect the obligations of the Seller and the
Shareholder under Section 10.2 hereof):
(a) The Seller shall have performed and complied
in all material respects with each obligation and covenant
required by this Agreement to be performed or to be complied with
by it on or prior to the Closing Date.
(b) The representations and warranties of the
Seller and Shareholder contained herein or in any Schedule
attached hereto shall be true and correct in all material
respects at and as of the Closing Date as if made at and as of
such time.
(c) The Seller shall have delivered to the Buyer
the Xxxx of Sale executed by the Seller and such other good and
sufficient instruments and documents of conveyance and transfer
executed by the Seller as shall be necessary and effective to
transfer and assign to, and vest in, the Buyer all of the
Seller's right, title and interest in and to the Assets.
(d) The Seller shall have delivered to the Buyer
an Assignment and Assumption Agreement for each of the Packaging
Facility Lease and the Dock Facility Lease executed by the
Seller.
(e) The Buyer shall have received written
evidence, in form and substance satisfactory to it, that all
consents, waivers, authorizations and approvals of, or filing
with or notices to, governmental entities and third parties
(including, if necessary, any party to an Assumed Liability)
required in order that the transactions contemplated hereby be
consummated have been obtained or made.
(f) Buyer shall have been provided with certified
copies of resolutions of the Boards of Directors of Seller and
Shareholder and of the shareholder of Seller, authorizing this
Agreement and its consummation.
(g) There shall not have occurred since December
31, 1995 any material damage or loss by theft, casualty or
otherwise, whether or not insured against by the Seller, of all
or any material portion of the Assets, or any material adverse
change in or interference with the Business or the properties,
assets, condition (financial or otherwise) or prospects of the
Seller.
(h) Each of the Seller and the Shareholder shall
have executed and delivered a ten (10) year non-competition
agreement with the Buyer and Parent, in substantially the form
attached hereto as Exhibit D.
(i) No action, suit or proceeding by any person
shall have been commenced and still be pending, no investigations
by any governmental or regulatory authority shall have been
commenced and still be pending, and no action, suit or proceeding
by any person shall have been threatened against the Seller or
the Shareholder, seeking to restrain, prevent or change the
transactions contemplated hereby or questioning the validity or
legality of any such transactions.
(j) The Seller and the Shareholder shall have
delivered to the Buyer a certificate dated the Closing Date
signed by the President of the Seller and the Shareholder as to
the satisfaction of the conditions contained in Sections 8.2(a),
8.2(b) and 8.2(g) hereof, and all such other certificates and
documents as the Buyer or its counsel shall have reasonably
requested.
(k) Seller shall have provided Buyer with a Phase
I Environmental Site Assessment (acceptable to Buyer) as to the
entire leased real property. Seller has agreed to address those
issues raised in the Phase I report as are more fully set forth
in Exhibit E attached hereto.
(l) Seller shall deliver an environmental
certificate to Buyer in the form attached as Schedule 8(l).
(m) Buyer shall have received an agreement from
Seller and Shareholder to pay for the removal of all underground
storage tanks on the leased property, when and as requested by
Buyer, not later than two (2) years subsequent to closing.
(n) Seller and Shareholder shall have delivered
to Buyer an agreement to pay for any remediation of the leased
real property related to the removal of the underground storage
tanks and remediation as required by law related to Seller's
activities on the leased property prior to Closing. Such
remediation is to be performed in accordance with all applicable
requirements of the EPA and the State of Alabama. Such
obligation shall expire two (2) years after the Closing Date, if
not requested by Buyer prior to such date.
(o) Buyer shall have agreements in principle
satisfactory to Buyer with the key employees of Seller listed on
Schedule 8.2(q) hereto to continue to be employed by Buyer
subsequent to the Closing Date.
(p) Buyer and Seller shall have agreed upon the
allocation of the Purchase Price.
(q) Buyer shall have received an opinion from
counsel to Seller as to corporate matters in form and substance
satisfactory to Buyer's counsel.
9. TERMINATION, AMENDMENT AND WAIVER.
9.1 Termination. This Agreement may be terminated at
any time prior to the Closing:
(a) by mutual written consent of Buyer and Seller
properly authorized, to the extent applicable, by their
respective Boards of Directors;
(b) by any party hereto, except as modified
herein, (i) if the Closing shall not have occurred on the Closing
Date (as extended to February 29, at the latest); or (ii) if it
has become impossible for any material condition specified in
this Agreement to be satisfied and such condition has not been
waived by the party having the power to waive such condition
within ten (10) days after a written request for such waiver was
made;
(c) by Buyer, if there shall have been any
default by Seller or the Shareholder of any obligation of Seller
or the Shareholder hereunder and such default shall not have been
remedied within ten (10) days after receipt by Seller of notice
in writing from Buyer specifying the nature of such default and
requesting that it be remedied; or
(d) by Seller, if there shall have been any
default by Buyer or Parent, of any obligation of Buyer or Parent
hereunder and such default shall not have been remedied within
ten (10) days after receipt by Buyer of notice in writing from
Seller specifying the nature of such default and requesting that
it be remedied.
9.2 Effect of Termination. In the event of
termination of this Agreement by either Buyer or Seller as
provided in Section 9.1 above, this Agreement shall forthwith
become void, and shall no force or effect, except that each party
shall retain its right with respect to any breach of the
Agreement by the other party, in each case arising, accruing or
related to actions occurring prior to termination. If this
Agreement is terminated as a result of Buyer's default, then the
Seller shall be entitled to receive the Xxxxxxx Money Deposit
paid by Buyer hereunder and shall be entitled to pursue any other
damages or remedies available at law or in equity. If this
Agreement is terminated due to Seller's or Shareholder's default,
the Xxxxxxx Money Deposit shall promptly be refunded to Buyer
upon demand, and the Buyer may pursue any other damages or
remedies available at law or in equity.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION.
10.1 Survival. All statements contained in any
certificate or other instrument delivered by or on behalf of any
party pursuant to this Agreement or in connection with the
transactions contemplated by this Agreement shall be considered
representations and warranties by that party with the same force
and effect as if contained in this Agreement. All
representations, warranties, covenants and agreements by any
party contained in this Agreement shall survive the Closing for a
period of two (2) years from the Closing Date. None of the
parties shall have any liability for misrepresentation or breach
of warranty except to the extent that notice of a claim
(specifying the nature of such claim in reasonable detail) is
asserted in writing and delivered to that party prior to two (2)
years from the Closing Date.
10.2 Indemnification.
(a) Shareholder and the Seller, jointly and
severally, shall indemnify and hold harmless the Parent and the
Buyer against all loss, liability, damage or expense (including
reasonable attorney's fees (including appeals) and expenses of
counsel in any matter, whether involving a third party or between
the indemnified and indemnified parties), net of any applicable
insurance proceeds ("Losses") the Parent and/or Buyer shall
suffer, sustain or become subject to as a result of (i) any
breach or inaccuracy of any representation, warranty, covenant or
other agreement of the Seller or the Shareholder contained in
this Agreement, or a claim by a third party, which, without
regard to the merits of the claim, would constitute such a breach
or misrepresentation, (ii) any claim by any taxing authority for
any federal, state, county, local and other taxes of the Seller,
including all taxes attributable to the Business and the
operations of the Seller prior to the Closing Date and to the
consummation of the transactions contemplated hereby, or (iii)
Seller's failure to satisfy any and all liabilities not assumed
by Buyer pursuant to this Agreement, including, without
limitation, any claim by any person with respect to obligations
or liabilities of the Seller arising out of or relating to any
Employee Plan. The merger, consolidation, liquidation,
dissolution or winding up of, or any similar transaction with
respect to, the Seller shall not affect in any manner the
obligations of the Seller and Shareholder pursuant to this
Section 10.2(a) or any other term or provision of this Agreement,
and the Seller and Shareholder covenant and agree to make
adequate provision for its liabilities and obligations hereunder
in the event of any such transaction.
(b) Buyer shall indemnify and hold harmless
Seller against all Losses that Seller may suffer, sustain, or
become subject to as a result of (i) any breach or inaccuracy of
any representation, warranty, covenant or other agreement of
Buyer contained in this Agreement or a claim by a third party
which, without regard to the merits of the claim, would
constitute a breach or misrepresentation, (ii) any failure by the
Buyer after the Closing Date to pay, perform or discharge when
due any of the Assumed Liabilities, or (iii) Buyer's conduct of
the Business subsequent to the Closing.
(c) Shareholder hereby agrees to indemnify,
defend, save, and keep Buyer and Parent and their respective
officers, employees, partners, successors, and assigns harmless
from any and all liabilities, obligations, charges, losses,
damages, penalties, claims, actions, and expenses, including
without limitation, engineer's and professional fees, soil, water
and groundwater tests and chemical analysis, court costs, legal
fees and expenses through all trial, appellate, and
administrative levels, imposed upon or incurred by or asserted
against Buyer or Parent in any way relating to, or arising out
of, or in connection with, Seller's use, handling, storage,
transportation, or disposal, prior to Buyer's acquisition of
Seller, of any substance listed in any federal, state, or local
environmental regulations, including but not limited to the
following: regarding federal statutes, the Comprehensive
Environmental Response Compensation Liability Act, the Emergency
Planning and Community Right to Know Act, the Hazardous Materials
Transportation Act, the Federal Insecticide, Fungicide, and
Rodenticide Act, and the Resource Conservation and Recovery Act;
and all Alabama laws. The foregoing indemnification shall
survive Closing and any assignment of this Agreement for a period
of four (4) years from the Closing Date.
10.3 Conditions of Indemnification for Third Party
Claims. The obligations and liabilities of the parties under
this Section with respect to, relating to, caused (in whole or in
part) by or arising out of claims of third parties (individually,
a "Third Party Claim" and collectively, "Third Party Claims")
shall be subject to the following conditions:
(a) The party entitled to be indemnified
hereunder (the "Indemnified Party") shall give the party
obligated to provide the indemnity (the "Indemnifying Party")
prompt notice of any Third Party Claim (the "Claim Notice"), and
in any event within twenty (20) days or such shorter period as
may be necessary to avoid a default thereof after the Indemnified
Party has actual knowledge of such Third Party Claim; provided
that the failure to give such Claim Notice shall not affect the
liability of the Indemnifying Party under this Agreement unless
the failure materially and adversely affects the ability of the
Indemnifying Party to defend the Third Party Claim. If the
Indemnifying Party promptly acknowledges in writing its
obligation to indemnify in accordance with the terms and subject
to the limitations of such party's obligation to indemnify
contained in this Agreement with respect to that claim, the
Indemnifying Party shall have a reasonable time to assume the
defense of the Third Party Claim at its expense and with counsel
of its choosing, which counsel shall be reasonably satisfactory
to the Indemnified Party. Any Claim Notice shall identify, to
the extent known to the Indemnified Party, the basis for the
Third Party Claim, the facts giving rise to the Third Party
Claim, and the estimated amount of the Third Party Claim (which
estimate shall not be conclusive of the final amount of such
claim or demand). The Indemnified Party shall make available to
the Indemnifying Party copies of all relevant documents and
records in its possession.
(b) If the Indemnifying Party, within a
reasonable time after receipt of such Claim Notice, fails to
assume the defense in accordance with Section 10.3(a), the
Indemnified Party shall (upon further notice to the Indemnifying
Party) have the right to undertake the defense, compromise or
settlement of the Third Party Claim, at the expense and for the
account and risk of the Indemnifying Party.
(c) Anything in this Section 10.3 to the contrary
notwithstanding, (i) the Indemnifying Party shall not, without
the written consent of the Indemnified Party, settle or
compromise any Third Party Claim or consent to the entry of
judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified
Party of an unconditional release from all liability in respect
of the Third Party Claim; (ii) if such Third Party Claim involves
an issue or matter which the Indemnified Party believes could
have a materially adverse effect on the Indemnified Party's
business, operations, assets, properties or prospects of its
business, the Indemnified Party shall have the right to control
the defense or settlement of any such claim or demand, and the
reasonable costs and expenses thereof shall be included as part
of the indemnification obligations of the Indemnifying Party
hereunder; and (iii) the Indemnified Party shall have the right
to employ its own counsel to defend any claim at the Indemnifying
Party's expense if (x) the employment of such counsel by the
Indemnified Party has been authorized by the Indemnifying Party,
or (y) counsel selected by the Indemnifying Party shall have
reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in the
conduct of the defense of such action.
(d) In the event that the Indemnified Party
should have a claim against the Indemnifying Party hereunder
which does not involve a Third Party Claim, the Indemnified Party
shall promptly send a Claim Notice with respect to such claim to
the Indemnifying Party. If the Indemnifying Party does not
notify the Indemnified Party within thirty (30) days of the
Indemnifying Party's receipt of such notice that it disputes such
claim, the amount of such claim shall be conclusively deemed a
liability of the Indemnifying Party hereunder.
10.4 Limitations. Except as otherwise provided in
Section 10.2(a)(i) and Section 10.2(b)(i), any claim under this
Section 10 must be asserted within four (4) years after the
Closing Date, and it is understood and agreed that any such claim
may be validly asserted by Buyer, Parent, Seller or Shareholder
during that period if a claim has been asserted or threatened
during that period which could result in a loss, liability,
damage, cost or expense for which the Indemnifying Party would be
liable pursuant to this Section 10, even though such loss,
liability, damage, cost or expense had not actually occurred
within four (4) years after the Closing Date.
11. POST-CLOSING MATTERS.
11.1 Further Assurances. The Seller and Shareholder
covenant and agree with the Parent and the Buyer, upon the
Buyer's request, to take, in the Seller's name, any and all steps
and to do any and all things which may be or become reasonably
necessary, proper, convenient or desirable to enable the Buyer to
reduce to possession, collect, enforce, own and enjoy any and all
rights and benefits in, to, with respect to, or in connection
with, the Assets, and each and every part and portion thereof.
The Seller and Shareholder also covenant and agree with the
Parent, the Buyer, their respective successors and assigns, that
the Seller and Shareholder will do, execute, acknowledge and
deliver, or cause to be done, executed, acknowledged and
delivered, any and all such further acts, instruments, papers and
documents as may be reasonably necessary to carry out and
effectuate the transactions contemplated under this Agreement.
11.2 Payment of Liabilities; Discharge of Liens. The
Seller shall satisfy and discharge as the same shall become due,
all of its liabilities, obligations, debts and commitments
related to the Business and the Assets and arising prior to the
Closing Date, and which have not specifically assumed by the
Buyer as Assumed Liabilities in accordance with this Agreement.
11.3 Conveyance Matters. From and after the Closing
Date, Seller will promptly refer all inquiries with respect to
ownership of the Assets or the Business to Buyer. In addition,
Seller will execute such documents and instruments as Buyer may
request from time to time to evidence transfer of the Assets to
Buyer, including any necessary assignments of financing
statements.
12. RISK OF LOSS.
Prior to the Closing Date, the risk of loss of damage
to, or destruction of, all of the Seller's property and assets,
including, without limitation, the Assets, shall remain with the
Seller.
13. PARENT GUARANTY.
The Parent hereby represents that it has cash or
immediately available funds to pay the cash portion of the
Purchase Price and guarantees to the Seller and the Shareholder
the prompt performance when due of each obligation of the Buyer
hereunder.
14. MISCELLANEOUS.
14.1 Entire Agreement. This Agreement, and the
Exhibits and Schedules to this Agreement, constitute the entire
agreement between the parties hereto with respect to the subject
matter hereof and supersede all prior negotiations,
understandings, agreements, arrangements and understandings, both
oral and written, among the parties hereto with respect to such
subject matter.
14.2 Amendment. This Agreement may not be amended or
modified in any respect, except by the mutual written agreement
of the parties hereto.
14.3 No Third Party Beneficiary. Nothing expressed or
implied in this Agreement is intended, or shall be construed, to
confer upon or give any person, firm, corporation, partnership,
association or other entity, other than the parties hereto and
their respective successors and assigns, any rights or remedies
under or by reason of this Agreement.
14.4 Waivers and Remedies. The waiver by any of the
parties hereto of any other party's prompt and complete
performance, or breach or violation, of any provision of this
Agreement shall not operate nor be construed as a waiver of any
subsequent breach or violation, and the failure by any of the
parties hereto to exercise any right or remedy which it may
possess hereunder shall not operate nor be construed as a bar to
the exercise of such right or remedy by such party upon the
occurrence of any subsequent breach or violation.
14.5 Severability. The invalidity of any one or more
of the words, phrases, sentences, clauses, sections or
subsections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any
part hereof, all of which are inserted conditionally on their
being valid in law, and, in the event that any one or more of the
words, phrases, sentences, clauses, sections or subsections
contained in this Agreement shall be declared invalid by a court
of competent jurisdiction, this Agreement shall be construed as
if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, section or sections, or subsection
or subsections had not been inserted.
14.6 Descriptive Headings. Descriptive headings
contained herein are for convenience only and shall not control
or affect the meaning or construction of any provision of this
Agreement.
14.7 Counterparts. This Agreement may be executed in
any number of counterparts and by the separate parties hereto in
separate counterparts, each of which shall be
deemed to be one and the same instrument.
14.8 Notices. All notices, consents, requests,
instructions, approvals and other communications provided for
herein and all legal process in regard hereto shall be in writing
and shall be deemed to have been duly given, when delivered by
hand or three (3) days after deposited in the United States mail,
by registered or certified mail, return receipt requested,
postage prepaid, as follows:
If to the Buyer Ocean Bio-Chem, Inc.
or the Parent: 0000 XX 00xx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
With a copy to: Xxxxxx & Xxxxx, P.A.
000 X.X. Xxxxx Xxxxxx Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Laz X. Xxxxxxxxx, Esq.
If to the Seller Kinark Corporation
or the Shareholder: 0000 Xxxxx Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
With a copy to: Nelson, Mullins, Xxxxx
& Scarborough, L.L.P.
000 Xxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
or to such other address as any party hereto may from time to
time designate in writing delivered in a like manner.
14.9 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns. None of the parties
hereto shall assign any of its rights or obligations hereunder
except with the express written consent of the other parties
hereto; provided, that the Buyer may assign its right hereunder
to any subsidiary or affiliate of the Buyer without the consent
of the other parties hereto.
14.10 Applicable Law. This Agreement shall be
governed by, and shall be construed, interpreted and enforced in
accordance with, the internal laws of the State of Alabama.
14.11 Expenses. Each of the parties hereto agrees
to pay all of the respective expenses incurred by it in
connection with the negotiation, preparation, execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby.
14.12 Confidentiality. Except to the extent
required for any party to obtain any approvals or consents
required pursuant to the terms hereof, no party hereto shall
divulge the existence of the terms of this Agreement or the
transactions contemplated hereby without the prior written
approval of all of the parties hereto, except and as to the
extent (i) obligated by law or (ii) necessary for such party to
defend or prosecute any litigation in connection with the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement on the date first above written.
OCEAN BIO-CHEM, INC.
By: /s/ XXXXX XX XXXX
Name: XXXXX XX XXXX
Title: Vice President Finance
KINBRIGHT, INC.
By: /s/ XXXXX XX XXXX
Name: XXXXX XX XXXX
Title: Vice President Finance
KINPAK, INC.
By: /s/ XXXX X. XXXXXXXX
Name: XXXX X. XXXXXXXX
Title: President
KINARK CORPORATION
By: /s/ XXXX X. XXXXXXXX
Name: XXXX X. XXXXXXXX
Title: Vice President
LIST OF EXHIBITS
Exhibit A Xxxx of Sale
Exhibit B Assignment and Assumption Agreement (Packaging Facility
Lease)
Exhibit C Assignment and Assumption Agreement (Docking Facility
Lease)
Exhibit D Non-Competition Agreement
Exhibit E Environmental Remediation Matters
LIST OF SCHEDULES
Schedule 1.1 Personal Property Assets
Schedule 2.3 Assumed Liabilities
Schedule 2.5 Purchase Price Allocation (agreed upon
prior to Closing)
Schedule 4.3 Third Party Consents
Schedule 4.4(a) Permitted Liens
Schedule 4.7(a) Scheduled Contracts
Schedule 4.11 Warranties
Schedule 4.12 Trademarks, Patents
Schedule 4.13 List of Key Employees of Seller with brief
summary of titles, duties, terms of employment and compensation
arrangements.
Schedule 4.14 Accounts Payable (delivered at Closing)
Schedule 8.2(l) Environmental Certification
Schedule 8.2(q) Key Employees of Seller
