EXECUTION COPY
DECEMBER 27, 1996
BUY AND SELL AGREEMENT
THIS AGREEMENT made as of the 27th day of December, 1996, by and between
Xxxxx Broadcasting Corporation, a Delaware corporation (hereinafter referred to
as "Seller"), and Winnebago Color Press, Inc., a Wisconsin corporation
(hereinafter referred to as "Buyer").
WHEREAS, Seller is engaged among other things in the printing business in
the Menasha, Wisconsin area, operating a business known as Winnebago Color Press
whose address is 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx, (hereinafter referred to
as "Winnebago"); and
WHEREAS, Winnebago is not an independent entity but operates as a division
of Seller; and
WHEREAS, Xxxxxxxx X. Xxxxx is Chairman of the Board of Directors, President
and Secretary of Seller and has been involved in the management of Winnebago
since 1987 and is further the President and a stockholder of Buyer; and
WHEREAS, Seller desires to sell and Buyer desires to buy all of the assets
of Winnebago, including real estate, in accordance with the terms of this
Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises and covenants herein set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, the parties agree as follows:
ARTICLE I
DEFINITIONS
CERTAIN DEFINED TERMS. As used in this Agreement the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
1.1 "Closing" or "Date of Closing" shall be defined as the opening of
business on December 27, 1996, or such other date as the parties may agree, at
the offices of Winston & Xxxxxx, 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000
at 10:00 a.m.
1.2 "Inventory" shall mean all products and supplies purchased for resale
or internal use as of the Date of Closing and all goods held for resale or
internal use at Seller's locations and used in connection with Winnebago being
purchased by Buyer or at which Winnebago may have its inventory located at Date
of Closing.
1.3 "Purchased Assets" or "Assets" shall have the meaning set forth in
Section 2.1.
1.4 "Taxes" shall mean any obligation or liability of either party for
their federal, state, local and foreign taxes of any kind including, without
limitation, any sales, income, use, franchise or inventory tax or any
employment, social security and other taxes withheld from employee salaries and
other withholding taxes and obligations including any interest and penalties
thereon, for all periods on, before or after the Date of Closing.
1.5 "To Seller's knowledge" shall mean that actual knowledge, without
independent verification, of Xxxxxxxx X. Xxxxx, Xxxxx X. Xxxx, Xxxxxx X. Xxxxxx,
and Xxxxxx Xxxxxxxx all of whom are present officers and/or employees of Seller
and who are engaged in the management of Winnebago.
1.6 "Intercompany Accounts" shall mean any account receivable owed to
Winnebago by any other division of Seller or any subsidiary of Seller or any
account payable owed by Winnebago to any subsidiary of Seller or any other
division of Seller.
-2-
ARTICLE II
ASSET PURCHASE, STOCK SALE AND SALE
2.1 ASSETS PURCHASED. Seller agrees to sell, transfer, assign, convey and
deliver unto Buyer, and Buyer agrees to acquire and accept as of the Date of
Closing, free and clear of and from any and all liabilities, liens, claims and
encumbrances, except such as may be assumed by Buyer or allowed to remain as an
encumbrance against real estate pursuant to Article III hereof and subject to
the terms of this Agreement, all of Seller's right, title and interest in and to
all of the assets, properties, privileges, rights, interests and claims,
tangible and intangible relating to Winnebago, located at the property shown on
Exhibit "A", which Exhibit is hereby incorporated by reference and made a part
hereof as if set forth fully herein (all such assets are hereinafter referred to
as the "Purchased Assets" or "Assets"):
(a) All of Seller's right, title, and interest in and to the
Inventory and prepaid advertising and/or prepaid expenses based
upon generally accepted accounting principles ("GAAP");
(b) All of Seller's right, title and interest in and to the equipment
and machinery on the itemized and attached Exhibit "B", which
Exhibit is hereby incorporated by reference and made a part
hereof as if set forth fully herein;
(c) All of Seller's right, title and interest in and to the motor
vehicles and trucks on the itemized and attached Exhibit "B";
(d) All of Seller's right, title, and interest, including
obligations, in and to the existing Contracts (hereinafter
referred to individually and collectively as "Contracts")
identified on the itemized and attached Exhibit "C" which is
hereby incorporated by reference and made a part hereof as if set
forth fully herein;
(e) All of Seller's right, title and interest, including obligations,
in and to the Lease Agreements (hereinafter referred to
individually and collectively as "Lease Agreements") identified
on the itemized and attached Exhibit "D"
-3-
which is hereby incorporated by reference and made a part hereof
as if set forth fully herein;
(f) All of Seller's names, trade names, and trademarks relating to
Winnebago, including but not limited to the name "Winnebago Color
Press";
(g) All of Seller's, right, title and interest in and to their
customer lists, phone numbers, business records and goodwill
relating to Winnebago;
(h) All of Seller's right, title and interest in and to the fixtures
on the purchased and/or leased premises relating to Winnebago;
(i) All of Seller's right, title and interest in and to the real
estate identified on the attached Exhibit "A";
(j) All other assets, including but not limited to, accounts
receivable, (except Intercompany Accounts receivable) of Seller,
not specifically listed herein, and used in the operation of
Winnebago.
All of the Purchased Assets are purchased "as is" except as provided in
this Agreement. Buyer is not relying on any representations and warranties
which are not contained in the Agreement except as specifically modified in this
Agreement. Buyer acknowledges that its President and a stockholder, Xxxxxxxx X.
Xxxxx, is Chairman of the Board of Directors, President and Secretary of Seller
and has been involved in the management of Winnebago since 1987. Buyer further
acknowledges and represents that it has conducted its own investigation of the
Purchased Assets, Seller's obligations and liabilities with respect to
Winnebago, Seller's business operations and all other matters Buyer has
determined to be worthy of its investigation. To the extent not specifically
warranted by Seller in this Agreement, Buyer is relying solely on its own
investigation and not on any representation or warranty of Seller, their agents,
attorneys or accountants.
-4-
EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO, AND THE BUYER
RECEIVES NO, OTHER WARRANTY, EXPRESS OR IMPLIED. ANY WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE IS EXPRESSLY EXCLUDED.
2.2 ASSETS EXCLUDED. Seller shall not sell, transfer, assign, convey, or
deliver unto to Buyer and Buyer acknowledges that it is not purchasing any
Intercompany Accounts as shown on its Closing Balance Sheet.
2.3 PURCHASE PRICE. Subject to the terms and conditions of this Agreement
and any adjustments to be made pursuant to the terms of this Agreement, the
total purchase price for the Purchased Assets shall be the sum of $3.225 million
plus any additional sum required to be paid by Buyer to Seller pursuant to
Section 2.6(b) of this Agreement plus the assumption of the liabilities and
obligations of Seller's Winnebago operation in accordance with Sections 3.1 and
3.2 of this Agreement. It is agreed between the parties that the purchase price
shall be allocated as itemized and attached on Exhibit "F" which is hereby
incorporated by reference and made a part hereof as if set forth fully herein.
2.4 PAYMENT OF PURCHASE PRICE. The Purchase Price for the Purchased Assets
shall be paid, in cash, on the Date of Closing in U.S. funds by wire transfer
pursuant to Seller's instructions or as otherwise agreed between the parties.
2.5 ASSIGNMENT OF CONTRACTS AND RIGHTS. Seller shall use its good faith
efforts to obtain, on or before the Date of Closing, the required consents of
any third party to the assignment of any Contracts or Lease Agreements hereunder
from Seller to Buyer. Anything in this Agreement to the contrary
notwithstanding, this Agreement shall not constitute an
-5-
agreement arising thereunder or resulting therefrom if an attempted
assignment thereof, without the consent of a third party thereto, would
constitute a breach thereof or in any way adversely affect the rights of
either Buyer or Seller or subject either to claims or litigation.
Notwithstanding the failure of Seller to obtain any such third party consents
by the Date of Closing, Buyer and Seller shall nevertheless close this
transaction, provided that if the required consent is set forth on Exhibit
"G" thereof, the Date of Closing shall be extended until the first business
day after the receipt by Seller of such consent.
2.6 PRORATIONS/ADJUSTMENT OF PURCHASE PRICE. At, or subsequent to, the
Date of Closing, the following shall occur:
(a) There shall be no specific proration of any insurance premiums,
excises, payrolls, vacation, sick leave, power and utility
charges, real or personal property tax, or any other similar
item. The parties acknowledge that said items are being shown as
current assets or current liabilities, as defined in this
Agreement, on Seller's balance sheet prepared and dated as of the
Closing Date (the "Closing Balance Sheet") which items shall be
prorated and utilized in the determination of values to be
established pursuant to Section 9.1(h) of this Agreement.
(b) Within sixty (60) days following the Closing Date, Buyer shall
cause to be delivered to Seller a balance sheet of Winnebago, as
of the Closing Date, prepared in a manner consistent with the
prior business practices of Winnebago and in accordance with
generally accepted accounting principles. To the extent
requested by Buyer, Seller shall, prior to the delivery of the
closing balance sheet, make available to Buyer and Buyer's
accountants such of the books and records in their possession as
shall be reasonably necessary for the preparation of the closing
balance sheet. During normal business hours and upon reasonable
notice from Seller, (A) Seller's accountants may participate in
and observe the preparation of the closing balance sheet;
provided that such participation and observation does not
unreasonably interfere with or delay the preparation of the
closing balance sheet and (B) Buyer shall make all of its work
papers and other relevant documents in connection with the
preparation of the closing balance sheet available to Seller and
Seller's accountants and shall make the persons in charge of the
preparation of the closing balance sheet available for reasonable
inquiry by Seller and Seller's accountants. If
-6-
Seller fails to timely notify Buyer of its disagreement with the
current assets and current liabilities, as defined in this
Agreement, of Winnebago set forth on the closing balance sheet
in accordance with the first sentence of the next succeeding
paragraph, the current assets and current liabilities of Winnebago
set forth on the closing balance sheet shall be final and binding
on the parties hereto for purposes of this Section.
Seller shall notify Buyer in writing within 15 days following
receipt of the closing balance sheet if it does not agree with
the current assets and current liabilities of Winnebago set forth
therein, in which case Seller and Buyer will use good faith
efforts during the 15-day period following the date of such
written notice to resolve any differences they may have as to the
current assets and current liabilities of Winnebago as of the
Closing Date. Such written notice will identify with specificity
the calculations with which Seller disagrees or other bases for
such disagreement. If Seller and Buyer cannot reach agreement
during such 15-day period, their disagreements shall be promptly
submitted to an independent, nationally recognized public
accounting firm jointly selected by Seller's accountants and
Buyer's accountants (the "Independent Accountant"), which shall
conduct such additional review as is necessary to resolve the
specific disagreements referred to it and based thereon and
having due regard for consistency with the prior balance sheets
prepared by Seller in the 24 month period prior to the Closing
Date, shall determine the current assets and current liabilities
of Winnebago as of the Closing Date. The review of the
Independent Accountant will be restricted as to scope to address
only those matters as to which Seller and Buyer have not reached
agreement pursuant to the preceding sentence. The Independent
Accountant's determination of the current assets and current
liabilities of Winnebago as of the Closing Date, which shall be
completed as promptly as practicable but in no event later than
10 business days following its selection, shall be confirmed by
the Independent Accountant in writing to, and shall be final and
binding on, the parties hereto for purposes of this Section. The
amount, if any, by which the current assets of Winnebago set
forth on the Closing Balance Sheet exceed the current liabilities
of Winnebago set forth on the Closing Balance Sheet is referred
to herein as the "Net Working Capital".
To the extent that the Net Working Capital exceeds the sum of
$1.5 million, then Buyer shall, within (i) 10 business days after
the agreement of the Buyer and Seller with regard to the final
purchase price or, if applicable, the determination of the
independent accountant as described in this Section 2.6(b), or
(ii) within 90 days of the date of closing, whichever shall occur
earlier, pay such amount to Seller.
-7-
The fees of and expenses incurred by Seller's accountants in
connection with the determination of the closing balance sheet
shall be paid by Seller. The fees of and expenses incurred by
Buyer's accountants in connection with the determination of the
closing balance sheet shall be paid by Buyer. The fees and
expenses of the Independent Accountant shall be shared equally by
Seller and Buyer.
2.7 DEPOSITS AND PREPAYMENTS. Buyer shall agree to honor all deposits and
prepayments, issued or held by Seller prior to the Date of Closing; provided,
however, that all deposits and prepayments issued or held shall be paid to Buyer
by Seller at Closing. Buyer shall also agree to honor all prepaid advertising
agreements issued to or held by Seller prior to the Date of Closing.
ARTICLE III
ASSUMPTION OF OBLIGATIONS
3.1 ASSUMPTION OF OBLIGATIONS. Buyer shall assume all liabilities and
obligations of Seller with respect to Winnebago, including obligations under
customer orders and obligations to purchase inventory and for the purchase of
equipment, and liabilities under the Winnebago Profit Sharing and Savings Plan,
except those liabilities not assumed as stated in Section 3.2 hereof. Buyer
hereby specifically assumes the employment agreement between Seller and Xxxxxx
Xxxxxxxx and the severance benefit agreement between Seller and Xxxxxx X.
Xxxxxx.
3.2 LIABILITIES NOT ASSUMED. Buyer shall not assume or be bound by any
obligations or liabilities of Seller that do not relate to Winnebago. In
addition, Buyer shall not assume the following obligations or liabilities as
they relate to Winnebago, if any:
(a) any obligation or liability of Seller for Taxes and/or
assessments for all periods that have accrued as of the Date of
Closing except as shown on
-8-
the Closing Balance Sheet as a current liability per GAAP or which
arise from or grow out of the sale of the business;
(b) any obligation or liability arising from existing litigation or
claims, if any, or litigation arising out of an occurrence or
event, whether known or unknown, happening before the Date of
Closing;
(c) any obligation or liability arising from Seller's failure to
perform any of their agreements contained herein or incurred by
Seller in connection with the consummation of the transactions
contemplated hereby including, but not limited to, leases, sign
leases or franchise agreements;
(d) any expenses or taxes of Seller incurred in connection with the
sale contemplated by this Agreement;
(e) any liability or obligation under any federal, state or local
law, regulation, rule, order, or administrative or judicial
determination, including any of the foregoing relating to
anti-trust, trade regulation, civil rights, employment practices
or health and safety standards applicable to employees, which
liability or obligation arises or results from any act, omission
or event prior to the Date of Closing by or on behalf of Seller
or by reason of the ownership or operation by or on behalf of
Seller of the Purchased Assets before the Date of Closing;
(f) any brokerage or finder's fee payable in connection with the
transactions contemplated hereby if any such fee is determined to
be due and owing as a result of this sale;
(g) any obligation or liability arising out of or related to claims
made before or after the Date of Closing for personal injuries,
property damages or consequential damages, which obligation or
liability arises from or results from Seller's business,
condition or operation of the Purchased Assets or otherwise
before the Date of Closing.
(h) any purchase money obligations, any obligations secured by any
real or personal property or any Intercompany Accounts.
ARTICLE IV
CLOSING
4.1 DELIVERY. At Closing, Seller shall deliver to Buyer deeds, bills of
sale, contracts, leases, assignments, certificate of titles, endorsements, and
other good and sufficient
-9-
instruments of transfer and conveyance as shall be necessary and legally
sufficient in the reasonable opinion of Buyer's counsel to fully effectuate
the sale, assignment and transfer of the Purchased Assets as contemplated
herein. Buyer shall deliver to Seller such assumptions or other instruments
as may be necessary or appropriate in the reasonable opinion of Seller's
counsel to affect the assumption by Buyer of the obligations and liabilities
to be assumed by Buyer under this Agreement. Buyer shall deliver to Seller
and Seller shall deliver to Buyer all certificates and other documents
required by Sections 5.1 and 6.1 of this Agreement.
4.2 CLOSING INFORMATION/DOCUMENTATION. At Closing, Seller shall provide
Buyer with all current inquiries, communications and orders relating to the
Purchased Assets. Further, at Closing, Seller will provide Buyer, unless
otherwise provided in this Agreement, with copies of all original Contracts,
Lease Agreements, or other agreements assumed by Buyer pursuant to this
Agreement, if any.
ARTICLE V
CONDITIONS PRECEDENT--SELLER
5.1 CONDITIONS PRECEDENT--SELLER. All obligations of Buyer under this
Agreement are subject to the fulfillment by Seller of each of the following
conditions precedent on or before the Date of Closing:
(a) That all of Seller's representations and warranties contained in
this Agreement are materially true and correct as of the Date of
Closing.
(b) That Seller has, in all material respects, complied with and
performed all agreements and conditions required by this
Agreement to be performed or complied with by Seller and not
waived in writing by Buyer.
(c) That Seller has delivered to Buyer properly executed instruments
of conveyance of all Assets and assignment of all agreements,
subject to Article II hereof.
-10-
(d) That Seller has delivered to Buyer an opinion of its attorney
dated the Date of Closing, satisfactory to Buyer's counsel, that:
(i) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware and has full power and authority to carry on
its business as now conducted and to own and operate
their properties, Assets and businesses; and,
(ii) All corporate and other proceedings required to be taken
by Seller to authorize and carry out this Agreement and
the transactions contemplated hereby have been duly and
properly taken; the execution and delivery of this
Agreement by Seller and their performance of the
transactions contemplated hereby will not result in
the breach of any terms or conditions of or constitute
a default under or violate as the case may be any of
Seller's articles of incorporation or bylaws, or insofar
as such counsel is aware, any material agreement, lease,
mortgage, note, bond, indenture, license or other
document or undertaking, oral or written, to or by which
Seller is bound or to which any of Seller's Purchased
Assets are subject; insofar as such counsel is aware,
all requisite consents of third parties to any action
to be taken by Seller hereunder, including the sale,
transfer or assignment of any asset or agreement, have
been obtained subject to the conditions of Article II of
this Agreement; to the best of its knowledge when closed
and consummated in accordance with the provisions of
this Agreement, the transactions contemplated by this
Agreement will transfer to Buyer all of Seller's right,
title and interest in and to the Purchased Assets,
subject to the terms of this Agreement and, that this
Agreement is a valid and binding obligation of Seller
in accordance with their terms;
(iii) Insofar as counsel is aware, there are no actions,
suits, proceedings or investigations, administrative or
judicial, pending or threatened against or affecting
Seller which involve the possibility of any lien being
validly attached to any Purchased Assets to be
transferred or sold hereunder; and
(e) That Seller has delivered to Buyer a certified copy of the
resolutions duly adopted by Seller's board of directors,
certified by Seller's secretary or assistant secretary, which
approved the execution, delivery and consummation of this
Agreement and all related documents by Seller.
-11-
(f) That to Seller's knowledge, Seller has all licenses, grants,
permits and government approvals and registrations required to
operate and conduct the business of Winnebago prior to the Date
of Closing.
(g) That Seller has provided a certificate that to Seller's
knowledge, all of Seller's representations and warranties under
this Agreement are true and correct as of Date of Closing.
(h) That Seller has provided a commitment for title insurance in the
amount as determined by Buyer for real estate parcels and
improvements, all described on Exhibit "A" continued through Date
of Closing, showing merchantable title in Seller in conformity
with this Agreement, Wisconsin law and title standards free and
clear of liens and encumbrances excepting municipal and zoning
ordinances, recorded easements for public utilities serving the
real estate, recorded building and use restrictions and
covenants, and general taxes levied in the year of Closing. The
cost of said commitment shall be paid equally by Buyer and
Seller.
(i) That Seller shall, to the extent they are reasonably and
presently available, furnish to Buyer the following with respect
to Winnebago:
(i) Results of any soil boring tests and samples and/or
engineering reports reflecting the suitability of the
soils affecting the Purchased Assets;
(ii) Copies of all Wisconsin Department of Natural Resources
permits (WDNR) and an other correspondence from the WDNR
regarding the Purchased Assets and any other reports or
correspondence from the Wisconsin Department of
Industry, Labor and Human Relations (DILHR),
Environmental Protection Agency (EPA), Army Corps of
Engineers (XXX) or other governmental agency affecting
the Purchased Assets. This includes, but is not
limited to, any PECFA correspondence;
(iii) A current as built survey of the real estate prepared
by a certified land surveyor incorporating all of the
improvements on the real estate, along with the legal
description to be shown in the title policy to be
provided to the Buyer;
(iv) All plans, specifications, layouts, engineering designs,
topography maps, building plans, reports, aerial
photographs or any other documentation and reports
regarding the Purchased Assets;
-12-
(v) Copies of any correspondence regarding connection to a
municipal sewer system and water system for the
Purchased Assets. Any inspections or reports received
from any governmental or regulatory authority and
Seller's reply to any such correspondence pertaining to
the Purchased Assets;
(vi) Copies of any other reports and tests Seller have
affecting the Purchased Assets;
(vii) A current list of all equipment, vehicles, supplies,
inventory parts, and personal property, etc., owned by
the Seller and used in connection with the maintenance
and operation of the Purchased Assets and improvements
thereon, all which are included in the sale of the
Purchased Assets, and all of which assets are to be
transferred free and clear of all liens or encumbrances;
(viii) A list of all leased equipment, copies of all leases
regarding the leased equipment, any other leases of any
kind and nature affecting the Purchased Assets or the
use of the Purchased Assets in any respect. Also, a
complete description of any and all oral agreements
affecting the Purchased Assets or operations on said
Purchased Assets;
(ix) Copies of all contracts and service agreements affecting
the Purchased Assets such as electric, gas, laundry,
cable TV, pest control, trash disposal, maintenance,
snow removal, lawn maintenance, sewer system
maintenance, water system maintenance, any well water
testing, easement agreements, license agreements, etc.;
and
(j) That Seller has executed and delivered all documents as required
under Article VII.
(k) That Seller has delivered to Buyer, certified by Seller's
assistant secretary, (i) a copy of resolutions duly adopted by
Seller's board of directors (A) waiving any conflict of interest
that may exist as a result of Xxxxxxxx X. Xxxxx, a stockholder
and President of Buyer, serving as Chairman of the Board of
Directors and President of Seller, (B) stating that the material
facts of the transaction contemplated by this Agreement and the
interest of Buyer were disclosed and were known to the board of
directors and (C) stating that the transaction contemplated by
this Agreement is fair to the Seller, and (ii) a copy of
resolutions duly adopted by the stockholders of Seller, (A)
acknowledging that Xxxxxxxx X. Xxxxx is a stockholder and
President of Buyer and serves as Chairman of the Board of
Directors and
-13-
President of Seller, (B) resolving that the transaction is in the
best interests of Seller, and (C) approving the execution and
delivery of this Agreement and the transactions contemplated
hereby.
(l) That Seller has provided a certificate, as of the Date of
Closing, that to the best of their knowledge, the current assets
of Winnebago, as defined by generally accepted accounting
principles, less the current liabilities, as defined by generally
accepted accounting principles, is not less than $1,475,000.00
and that the current assets include not less than $275,000.00 of
cash.
(m) That Seller has provided to Xxxxxxxx X. Xxxxx a release from any
covenant not to compete or restriction which would prohibit or
otherwise impair, in any fashion, Buyer's ability to own,
operate, manage, or otherwise be involved in the day-to-day
operation of the business of Winnebago.
(n) That Seller has obtained an opinion, from an investment bank of
Seller's choosing, as to the fairness, from a financial point of
view, to the Seller of the consideration to be received by the
Seller in connection with the sale of the assets to the Buyer.
(o) Seller shall have received instruments releasing any and all
liens, mortgages, pledges and encumbrances relating to the
Purchased Assets and arising under or relating to the Indenture
dated as of October 26, 1995 between Seller and Fleet National
Bank.
ARTICLE VI
CONDITIONS PRECEDENT--BUYER
6.1 CONDITIONS PRECEDENT--BUYER. All obligations of Seller under this
Agreement are subject to the fulfillment by Buyer of each of the following
conditions precedent on or before the Date of Closing:
(a) That all of Buyer's representations and warranties contained in
this Agreement are materially true and correct as of the Date of
Closing;
(b) That Buyer has, in all material respects, complied with and
performed all agreements and conditions required by this
Agreement to be performed or complied with by Buyer and not
waived in writing by Seller;
-14-
(c) That Buyer has delivered to Seller an opinion of its attorney
dated the Date of Closing, satisfactory to Seller's counsel,
that:
(i) Buyer is duly organized, validly existing and in good
standing under the laws of the State of Wisconsin and
has full power and authority to carry on its business
as now conducted and to own and operate its properties,
Assets and businesses; and,
(ii) All actions and other proceedings required to be taken
by Buyer to authorize and carry out this Agreement and
the transactions contemplated hereby have been duly and
properly taken; to the best of its knowledge the
execution and delivery of this Agreement by Buyer and
its performance of the transactions contemplated hereby
will not result in the breach of any terms or conditions
of or, constitute a default under or violate as the case
may be any of Buyer's articles of organization or
bylaws, or insofar as such counsel is aware, any
material agreement, lease, mortgage, note, bond,
indenture, license or other document or undertaking,
oral or written, to or by which Buyer is bound
and, that this Agreement is a valid and binding
obligation of Buyer in accordance with its terms; and
(iii) Insofar as such counsel is aware there are no actions,
suits, proceedings or investigations, administrative or
judicial, pending or threatened against or affecting
Buyer; and
(d) That Buyer has delivered to Seller a certified copy of the
resolutions duly adopted by Buyer's board of directors, certified
by Buyer's secretary or assistant secretary, which approve the
execution, delivery and consummation of this Agreement and all
related documents with Seller;
(e) That Buyer has provided any and all documents needed to comply
with any and all requirements imposed by federal, state and local
law, rule or ordinance necessary to authorize and validate this
sale;
(f) Buyer hereby waives compliance by Seller with the provisions of
the Bulk Sales Act of the State of Wisconsin;
(g) That Buyer has provided a certificate that all of Buyer's
representations and warranties under this Agreement are true and
correct as of Date of Closing.
(h) That Buyer has executed and delivered all documents as required
under Article VIII.
-15-
(i) Xxxxxxxx X. Xxxxx, as President of Seller and as President of
Buyer, has provided to Seller a certificate that, to the best of
his knowledge, Seller does not have any obligations or
liabilities under subsections (b), (e), (f) or (g) of Section 3.2
and to the best of his knowledge, the representations and
warranties set forth in subsections (e), (g), (i), (j), (k), (m),
(n), (o), (p), (q), (s), (t) or (u) of Section 9.1 of this
Agreement are true and correct.
(j) That Seller has obtained an opinion, from an investment bank of
Seller's choosing, as to the fairness, from a financial point of
view, to the Seller of the consideration to be received by the
Seller in connection with the sale of the assets to the Buyer.
(k) Seller shall have received instruments releasing any and all
liens, mortgages, pledges and encumbrances relating to the
Purchased Assets and arising under or relating to the Indenture
dated as of October 26, 1995 between Seller and Fleet National
Bank.
ARTICLE VII
DOCUMENTS TO BE DELIVERED AT CLOSING BY SELLER
Seller agrees to deliver the following documents as approved by Buyer's
counsel at Closing:
7.1 All instruments of conveyance for the assets to be purchased herein
including, but not limited to, bills of sale, warranty deeds, assignment of
contracts, franchise agreements and leases and any vehicle titles or similar
documents necessary for transfer and all transfer fees, sales taxes and vehicle
transfer fees.
7.2 Commitments for title insurance in the amount as determined by Buyer
pursuant to Section 5.1(h) and all documents necessary to allow title company to
issue a title policy showing title vested as set forth on Exhibit "A" free of
all liens and encumbrances.
7.3 Seller's opinion of counsel pursuant to 5.1(d).
7.4 Survey of all property purchased by Buyer and blueprints in Seller's
possession,
-16-
if any, for all improvements.
ARTICLE VIII
DOCUMENTS TO BE DELIVERED AT CLOSING BY BUYER
Buyer agrees to deliver the following documents as approved by Seller's
counsel at Closing:
8.1 Opinion letter of Buyer's counsel pursuant to 6.1(c).
8.2 Certified resolutions approving transaction by board of directors of
Buyer.
8.3 Proof of wire transfer satisfactory to Seller as required pursuant to
2.4.
8.4 Buyer will execute the Seller's letter to Wisconsin Department of
Revenue requesting clearance certificate for sales tax liability.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
9.1 REPRESENTATIONS AND WARRANTIES BY SELLER. Seller represents and
warrants as of the date of the execution of this Agreement and as of the Date of
Closing as follows:
(a) ORGANIZATION AND GOOD STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware, and that the Seller has filed all
documents necessary to allow it to transact business in the State
of Wisconsin and any other state where it may be so required for
the Winnebago business, and has full power and authority to
carry on its business as now conducted and to own or lease and to
operate its properties, Assets and business except where failure
to do so would have no material adverse effect on Winnebago.
(b) CORPORATE AUTHORITY. All corporate and other proceedings required
to be taken by Seller to authorize and carry out this Agreement
and the transactions contemplated hereby have been duly and
properly taken and this Agreement and the instruments executed
and delivered to Buyer are
-17-
binding upon and enforceable against Seller in accordance with
their terms.
(c) ACCURACY OF EQUIPMENT LISTING. That the list of Purchased Assets
on Exhibits "A" and "B" is materially accurate and have been used
by Seller in the operation of Winnebago.
(d) TITLE TO ASSETS. The Seller, as of Closing, will own outright,
and will have good and marketable title to, all of the Purchased
Assets free and clear of all liens, pledges, mortgages, security
interests, conditional sales contracts and other encumbrances of
any nature whatsoever except as to those to be satisfied out of
the proceeds of the sale and except as to those whose liability
is being assumed by Buyer;
(e) ASSETS OF SELLER. The assets of Seller which are being sold
hereunder have been maintained in accordance with Seller's past
practices and Seller has received no notice of any violation of
applicable zoning and other laws, ordinances and regulations,
including, but not limited, to the Federal Occupational Safety
and Health Act. All equipment and machinery has been and will be
maintained in the normal and customary course to the Date of
Closing.
(f) VALIDITY OF CONTEMPLATED TRANSACTIONS. Neither the execution and
delivery of this Agreement nor the consummation of the
transaction provided herein will constitute a violation of
applicable law or a violation or a breach of Seller's articles of
incorporation or bylaws, or any provision of any contract or
other instrument to which any Seller is a party or by which it is
bound, or to Seller's knowledge, any statute, rule, or regulation
of any court or governmental agency, or any statute, rule or
regulation applicable to it, or constitute a default (or would
with the passage of time or the giving of notice, or both
constitute a default) under any contract, agreement or instrument
to which any Seller is a party or by which any Seller is bound.
(g) LITIGATION. To Seller's knowledge, there are no actions, suits,
proceedings, arbitrations or investigations, administrative or
judicial, pending or threatened or that there is any basis for
asserting against or affecting Seller which involve the
possibility of any judgment or imposition of liability against
Seller that would constitute a lien on the Purchased Assets
transferred and sold by Seller hereunder. To Seller's knowledge
no action, suit or proceeding has been instituted before a court
or governmental agency threatening to restrain or prevent the
carrying out of the transactions contemplated hereby.
-18-
(h) FINANCIAL STATEMENTS. Prior to the execution of this Agreement,
Seller has furnished to Buyer combined financial statements and
other financial history of Winnebago. Seller, to Seller's
knowledge, represents and warrants to Buyer that all said
financial information is true and accurate in all material
respects and prepared in accordance with GAAP applicable to
operating divisions of a legal entity.
That, as of the Date of Closing, the current assets, as defined
by generally accepted accounting principles, less the current
liabilities, as defined by generally accepted accounting
principles (excluding purchase money obligations and Intercompany
Accounts, if any) shall be not less than $1,475,000.00 and
further that the current assets shall include not less than
$275,000.00 of cash.
(i) CHANGES IN BUSINESS. Since December 1, 1996, there have been no
material changes in the condition (financial or otherwise),
assets, liabilities or business of Winnebago, other than changes
in the ordinary course of business, which would materially have
been adverse to Seller, individually or in the aggregate, and to
Seller's knowledge and belief there have been no casualties,
damage, destruction or loss materially adversely affecting the
business or prospects, or any of the property of Winnebago,
strike, lock-out, labor dispute, labor litigation, labor practice
claim, grievance, other labor stoppage or other shut-down of
operations affecting Winnebago, or government investigation or
shut-down of Winnebago. Seller shall, up to and including the day
of closing, make no change in the December 1, 1996 balance sheet
of Winnebago without the express written approval of Buyer.
Since December 1, 1996, Seller has operated the business of
Winnebago in the ordinary and regular course and no purchases of
inventory or other prepaid expenses have occurred outside the
usual and ordinary course of business.
(j) LICENSES, PERMITS AND REGISTRATIONS. To Seller's knowledge,
Winnebago has all necessary permits, licenses and registrations
to carry on its business as of the Date of Closing. Winnebago,
to Seller's knowledge, has not conducted its business in any
material violation of any applicable law, regulation or ordinance
or infringed on any patent or copyright in the conduct of its
business; and no business service, arrangement or source of
supply necessary for the continuing conduct of Winnebago in the
manner heretofore conducted is being interrupted or is threatened
with interruption in any material respect. Seller has made no
contracts not in the ordinary course of business which would
affect the business of Seller to be transferred.
-19-
(k) UNION AGREEMENTS. There are no union contracts in effect at
Winnebago. There are no pending remedial obligations such as,
but not limited to, reinstatement, promotion, back pay, etc.,
stemming from an unfair labor practice charge or other proceeding
which may accrue up to the Date of Closing.
(l) PROFIT SHARING PLAN. Seller's profit sharing plan for Winnebago
is fully funded or will be funded by the Date of Closing, and no
other deferred benefit plans exist for the benefit of Seller's
employees. No unfunded liability exists, said plan is in
material compliance with all federal and state laws, and Seller
has funded or contributed to said plans for 1995 and, has done or
will do so for 1996 on the same basis as shown by their
historical practices.
(m) EMPLOYMENT OF EMPLOYEES. Seller has made no representations nor
will make any representations to the employees of Winnebago which
would change such employees' status of employment under the
Buyer's operation to anything other than employees at will other
than employment contracts assumed by Buyer nor has there been any
substantial change in any employment relationship with any
employee other than in the ordinary course of business.
(n) ENVIRONMENTAL MATTERS.
1. To Seller's knowledge, Seller, with respect to Winnebago,
has not received any written notice of violations or
liabilities arising under any federal, state or local laws
and regulations relating to the emission, discharge, release
or threatened release of any chemicals, petroleum,
pollutants, contaminants or hazardous or toxic materials,
substances or waste in abient air, surface water,
groundwater or lands or otherwise relating to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of any chemicals,
petroleum, pollutants, contaminants or hazardous or toxic
materials, substances or waste (collectively, "Environmental
and Safety Requirements").
2. To Seller's knowledge, the Seller, with respect to
Winnebago, is in compliance with all the terms of
Environmental and Safety Requirements or any written notice
or demand letter issued, entered, promulgated or approved
thereunder, except where the failure to comply would not
have a material adverse effect on the business, financial
condition or operating results of the Seller's Winnebago
operation.
-20-
3. This Section 9.1(n) constitutes the sole and exclusive
representation and warranty of the Seller with respect to
Environmental and Safety Requirements and all other
environmental matters.
(o) LABOR DISPUTES. No labor disputes have been initiated, or to
Seller's knowledge, threatened or are presently pending against
Seller's Winnebago operations.
(p) OBLIGATIONS ASSUMED. All of the obligations of Seller to be
assumed by Buyer are valid and enforceable and are current and
not in default, except those subject to a good faith dispute and
shown as current liabilities on the Closing Balance Sheet, and
Seller has received no notice of default or any deficiency
relating to any such obligation to be assumed.
(q) PATENTS, TRADE MARKS AND TRADE NAMES. To Seller's knowledge,
Seller has had no notice of any suit or threat of suit alleging
that Seller, as it relates to Winnebago, has infringed any
franchise agreements, patent, patent application, trade xxxx,
copy right or trade name, licenses thereof, owned by any other
person, firm or corporation.
(r) TAX MATTERS. The Seller has filed or caused to be filed all
federal and state tax returns which, to the best of the knowledge
of Seller's officers, are due and required to be filed and have
paid or cause to be paid all Taxes as shown on such returns or
any assessments received by Seller to the extent that such Taxes
have become due. To Seller's knowledge, neither the Internal
Revenue Service nor any State has either assessed nor alleged any
deficiency with respect to any Taxes of any kind.
(s) SELLER'S VENDORS AND CUSTOMERS. To Seller's knowledge there is
no dispute, conflict or problem of any kind with any of their
current contract vendors or major customers of Winnebago which
would be materially adverse to Buyer.
(t) REAL ESTATE ZONING. All real estate shown on Exhibit A is zoned
or operating under a conditional use permit for the business for
which it is currently being utilized.
(u) CONDITION OF REAL ESTATE. To Seller's knowledge there is no (1)
planned or commercial public improvement which may result in
special assessments or otherwise materially affect any real
estate being sold to Buyer by Seller; (2) government agency or
court requiring repair, alteration or correction of any existing
condition of said real estate; and (3) wet land and shore land
regulations affecting said real estate. That the
-21-
present use of said real estate is a permitted use or a legal
non-conforming use which will not be affected by the consummation
of this transaction.
(v) EXTENT OF ASSETS. That the Purchased Assets are not all or
substantially all of Seller's assets.
9.2 REPRESENTATIONS AND WARRANTIES BY BUYER. Buyer represents and
warrants as of the date of the execution of this Agreement and as of the Date of
Closing as follows:
(a) ORGANIZATION AND GOOD STANDING. Buyer is a corporation, is duly
organized, validly existing and in good standing under the laws
of the State of Wisconsin and has full power and authority to
carry on its business as now conducted and to own or lease and to
operate its properties, assets and business.
(b) AUTHORITY. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby are within
the corporate power of the Buyer and have been duly authorized by
all necessary corporate action, and this Agreement constitutes
the valid and binding obligation of the Buyer, enforceable in
accordance with its terms.
(c) VALIDITY OF CONTEMPLATED TRANSACTION. Neither the execution and
delivery of this Agreement nor the consummation of the
transactions provided herein will constitute a violation of
applicable law or a violation or breach of Buyer's articles of
organization or bylaws, or any provision of any contract or other
instrument to which the Buyer is a party or by which it is bound,
or any order, writ, injunction or decree of any court or
governmental agency, or any statute, rule or regulation
applicable to their, or constitute a default (or would with the
passage of time or the giving of notice, or both constitute a
default) under any contract, agreement or instrument to which
Buyer is a party or by which it is bound.
(d) LITIGATION. That no action, suit or proceeding has been
instituted before a court or governmental agency threatening to
restrain or prevent the carrying out of the transactions
contemplated hereby.
-22-
ARTICLE X
SELLER'S EMPLOYEES
10.1 RETENTION OF KEY EMPLOYEES FOR SECURITY. Buyer agrees to hire as at
will employees substantially all of the affected employees of Seller as defined
in Wis. Stats. sec. 109.07(6)(a) with not more than a six (6) month break in
employment. The provision for employees in this paragraph is for the benefit of
the parties hereto and will not create any rights in any employee.
ARTICLE XI
INDEMNIFICATION
11.1 INDEMNIFICATION - SELLER. Seller, with respect to the individual
assets being sold to Buyer, to the extent not disclosed, agrees to indemnify and
hold Buyer, its officers, directors, members and shareholders harmless against
and in respect of (i) all obligations and liabilities of Seller whether accrued,
absolute, fixed, contingent or otherwise, as of the Date of Closing not
expressly assumed by Buyer pursuant to this Agreement, (ii) any claim, liability
or damage incurred or sustained by Buyer as a result of any inaccuracy of or
breach by Seller in any respect of any of their representations, warranties or
obligations, or any breach of or failure by Seller to perform in any respect any
of their covenants contained herein, or in certificates, or other documents
delivered hereunder or pursuant hereto, for a period of one year from the Date
of Closing; and (iii) all reasonable costs and expenses (including reasonable
attorneys' fees) incurred by Buyer in connection with any third party action,
suit, proceeding, demand, claim, assessment or judgment incident to any of the
matters indemnified against in this Section 11.1 provided, however, that in no
event shall the Seller be liable for payment of any damages or
-23-
indemnification in an aggregate in excess of the aggregate amount actually
received by Seller from Buyer under this Agreement.
11.2 INDEMNIFICATION - BUYER. Buyer agrees to indemnify and hold Seller,
their officers, directors and shareholders harmless against and in respect of
(i) all obligations and liabilities of Seller expressly assumed by Buyer
pursuant to this Agreement including but not limited to Section 2.1; (ii) any
claim, liability or damage incurred or sustained by Seller as a result of any
inaccuracy of or breach by Buyer in any material respect of any of its
representations and warranties, or any breach of or failure by Buyer to perform
in any material respect any of its covenants contained herein, or in
certificates, or other documents delivered hereunder or pursuant hereto, for a
period of one year from the Date of Closing; (iii) all reasonable costs and
expenses (including reasonable attorneys' fees) incurred by Seller in connection
with any third party action, suit, proceeding, demand, claim, assessment or
judgment incident to any of the matters indemnified against in this Section
11.2; and (iv) any claim by a third party (other than the parties hereto)
arising from the use of the Purchased Assets after the Date of Closing including
claims by third parties for injuries or occurrences after the Date of Closing
which allege an act of negligence by Seller prior to the Date of Closing such
as, as an illustration, a claim for an injury suffered after the Date of Closing
alleging that Seller negligently designed or constructed the Purchased Assets
prior to the Date of Closing.
11.3 INDEMNIFICATION. Notwithstanding anything to the contrary herein, any
claim for indemnification by any party against the other party under this
Article XI shall be payable the indemnifying party only in the event that the
accumulated amount of the claims in respect of such party's obligation to
indemnify shall exceed $50,000.00 in the aggregate.
-24-
11.4 NOTICE. Promptly after receipt by an indemnified party under this
Article XI of any claim or notice of commencement of action for any liability,
claim or damage indemnified hereunder, said indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under this
Article XI, notify the indemnifying party in writing of the claim or the
commencement of the action, provided that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to the
indemnified party, except to the extent that the indemnifying party can
demonstrate that it is damaged by such failure. If any such claim shall be
brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein, and to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party, and to settle and compromise any such claim or action;
provided, however that such settlement or compromise shall be effected only with
the consent of the indemnified party, which consent shall not be unreasonably
withheld. After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Article XI for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation, provided, however, that the indemnified party shall have the
right to employ counsel to represent it if, in the indemnified party's
reasonable judgment, it is advisable for the indemnified party to be represented
by separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the indemnified party unless such separate
representation is required due to a conflict of interest on the part of counsel
for the indemnifying party in which case the indemnifying party pays those
attorney fees as well; Buyer and Seller
-25-
each agree to render to each other such assistance and cooperation as may
reasonably be requested in order to insure the proper and adequate defense
of any such claim or proceeding or to insure the adequate prosecution or
defense of any claim or proceeding relating to the Purchased Assets.
ARTICLE XII
COVENANT NOT TO COMPETE
12.1 RELEASE OF BUYER. Incident to the sale of Winnebago, Seller shall
release Xxxxxxxx X. Xxxxx from any covenant not to compete or restriction that
may exist in any agreement between Seller and Xxxxxxxx X. Xxxxx as it may relate
to Xxxxxxxx X. Xxxxx'x inability to compete against Seller in the operation of
Winnebago or the printing business. All other terms and conditions of any
agreement between Buyer and Seller, relating to any covenant not to compete or
restriction shall remain in full force and effect.
ARTICLE XIII
RIGHT TO USE NAME
13.1 NAME/TRADE NAME. As part of the Purchased Assets herein, Seller
hereby sells, assigns and transfers to Buyer all of its right, title and
interest in and to the name "Winnebago Color Press", and any and all trade names
and trademarks relating to the Purchased Assets listed on Exhibit "E". Seller
agrees to execute and provide Buyer with such legal documentation as is
reasonably necessary in Buyer's attorney's opinion to effect this transfer and
to allow Buyer to use and register said names, trade names and trademarks.
Seller agrees not to use or employ the name "Winnebago Color Press" or any
derivative thereof after the Date of Closing.
-26-
ARTICLE XIV
TAX
14.1 SALES TAX. Buyer understands that Seller will attempt to qualify the
sale of assets hereunder as an "occasional sale" as defined under Chapter 77 of
the Wisconsin Statutes. Seller shall be solely responsible for the payment of
any and all sales tax due as a result of the sale of the Purchased Assets from
Seller to Buyer and Buyer shall be held harmless therefrom.
14.2 SUCCESSOR. Buyer shall, at Buyer's sole option, be deemed a successor
of Seller for purposes of any state and/or federal tax withholding funds and/or
state unemployment compensation accounts.
ARTICLE XV
GENERAL PROVISIONS
15.1 NO BROKERAGE. Seller and Buyer each represent to the other that no
broker or agent was involved in this transaction.
15.2 COSTS. Each party shall pay their own attorney's fees, accounting
fees, costs and expenses, including Taxes, incident to the preparation and
carrying out of this Agreement, regardless of whether or not this Agreement is
effectuated.
15.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto and may be amended or modified only in writing signed
by both parties. Each party acknowledges to the other that no representations,
warranties or other undertakings have been made or relied upon in connection
with the subject matter hereof except such as are incorporated herein. This
Agreement supersedes the Letter of Intent dated November 25, 1996, and the
Letter of Intent is revoked and is of no further force or effect.
-27-
15.4 BINDING EFFECT. All terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the legal
representatives and assigns and successors of the parties.
15.5 APPLICABLE LAW. This Agreement shall be construed in accordance with
and governed and interpreted by the laws of the State of Wisconsin. The
invalidity of any provisions herein shall not affect the validity of the
remainder of the Agreement or the remaining provisions hereof. The failure of
any party to enforce any provision herein shall not constitute a waiver of that
or any provision contained in this Agreement.
15.6 SEVERABILITY. If any provision of this Agreement shall be declared by
any court of competent jurisdiction to be illegal, void or unenforceable, all
other provisions of this Agreement shall not be affected and shall remain in
full force and effect.
15.7 HEADINGS. The headings contained in this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
15.8 NOTICES. All notices which are required or may be given pursuant to
the terms of this Agreement shall be in writing and shall be deemed duly given
if delivered personally, mailed by registered or certified mail, postage
prepaid, return receipt requested, or sent by Federal Express or other
comparable nationally recognized courier service (receipt requested). Notices
shall be sent as follows:
To Seller:
Xxxxx X. Xxxx
Xxxxx Broadcasting Corporation
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
-28-
Copy to:
Attorney Xxxxxxx X. Xxxxxxx
Connolly, Bove, Lodge & Hutz
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Xxxxxx X. Xxxxx
Xxxxxxx & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
To Buyer:
Xxxxxxxx X. Xxxxx
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Copy to:
Attorney Xxxx X. Xxxxxx
Danielson, Guettinger, Richie,
Manydeeds & Xxxxxx, S.C.
0000 Xxxxxxx Xxxx Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxx Xxxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
15.9 SURVIVABILITY. All of the representations and warranties made in this
Agreement shall survive the Closing Date for a period of one year thereafter, at
which time all of such representations and warranties shall be extinguished and
shall have no further force and effect thereafter.
-29-
15.10 CONFIDENTIAL INFORMATION. All information contained in this
Agreement, including all schedules, exhibits, certificates or other documents
furnished by Buyer or Seller in connection herewith and all information relating
to Buyer or Seller made available to representatives of Buyer or Seller or
otherwise obtained from them, except such information which may be obtained by
public information or trade sources, or which is in a public domain, shall be
treated by Buyer and Seller and their representatives as confidential
information. Buyer and Seller and their representatives shall keep
confidential, and should not make use of any such confidential information or
knowledge acquired in connection with this Agreement, except in the consummation
of the transaction contemplated hereby or unless it is necessary for Seller to
disclose same in connection with any public filing before any governmental
agency.
15.11 TRANSACTIONS AFTER CLOSING. From time to time at the request of
either party, the other party shall execute and deliver such further instruments
of assignment, conveyance or transfer and take such action as may reasonably be
requested to evidence the assignment, conveyance, transfer and other
transactions herein provided for to carry out this Agreement. Specifically, the
parties agree to sign any and all documents imposed by federal, state or local
law, rule or ordinances necessary to authorize and validate this sale and the
transactions herein provided for.
15.12 TIME. Time is of the essence of this Agreement and each and every
provision hereof. Any extension of time granted for the performance of any duty
under this Agreement shall not be considered an extension of time for the
performance of any other duty under this Agreement unless so stated or unless
obviously necessary from the context.
-30-
15.13 ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding on the successors and permitted assigns of the parties hereto.
[signature page follows]
-31-
EXECUTED as of the date above given.
XXXXX BROADCASTING CORPORATION
By: /S/ XXXXX X. XXXX
------------------------------------
Xxxxx X. Xxxx, Assistant Secretary
& Treasurer
WINNEBAGO COLOR PRESS, INC.
By: /S/ XXXXXXXX X. XXXXX
------------------------------------
Xxxxxxxx X. Xxxxx, President
This Agreement drafted by:
Attorney Xxxx X. Xxxxxx
Danielson, Guettinger, Richie,
Manydeeds & Xxxxxx, S.C.
0000 Xxxxxxx Xxxx Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxx Xxxxxx, XX 00000-0000
(000) 000-0000
