EXHIBIT 10.12
AGREEMENT FOR THE SALE AND PURCHASE OF ASSETS
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AGREEMENT FOR THE SALE AND PURCHASE OF ASSETS, dated as of January
28, 2000, by and between CROP BUILDERS, INC., a Minnesota corporation with its
principal place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX
00000 ("Seller") and XXXXXXX-XXXXX, INC. , a Delaware corporation with its
principal place of business at 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller owns certain assets used by Seller in the manufacture
and sale of fertilizer and seed products and the sale of related chemical
products and agronomic and application services for and to farmers and others;
and
WHEREAS, Purchaser desires to purchase such assets, together with the
business associated therewith, and Seller is willing to sell the same to
Purchaser, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the respective
representations and warranties hereinafter set forth, the covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Purchaser and Seller
hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
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As used herein, the following terms shall have the following meanings:
1.1 "Agreement" shall mean this agreement as executed by the parties
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hereto and all exhibits, schedules or other documents which are annexed hereto
and made a part hereof.
1.2 "Business" shall mean the manufacture and sale of fertilizer and
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seed products and the sale of related chemical products and agronomic and
application services for and to farmers and others, as currently being conducted
by Seller.
1.3 "Closing Date" shall mean February 1, 2000 or such adjourned
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date not later than February 10, 2000 as Buyer and Seller may designate.
1.4 "Contracts" shall mean the leases, rental agreements and other
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agreements listed on Schedule 1.4.
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1.5 "Disclosure Schedules" shall mean, collectively, the several
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Schedules
1.6 "Equipment" shall mean all of the Seller's equipment, machinery,
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furniture, fixtures, motor vehicles, other rolling stock, tanks, bins, pallets,
computers and related items, and all components thereof and spare parts therefor
and other tangible personal property owned by the Seller and used in the
Business, all as listed on Schedule 1.6
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1.7 "Excluded Assets" shall mean all of Seller's United Suppliers
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patronage dividends accrued through the Closing Date, and all other properties
and assets owned by Seller that are not used in the Business and are not
included in the definition of Purchased Assets herein.
1.8 "Facilities" shall mean all land, buildings and improvements at
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Seller's Guckeen, Minnesota and Welcom, Minnesota facilities, as more
particularly described on Schedule 1.8.
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1.9 "Intangible Property" shall mean (a) all United States
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Environmental Protection Agency and state and local environmental, land use and
zoning related permits, licenses and approvals utilized by Seller in connection
with the Business, (b) Seller's customer and vendor lists, files and sales and
marketing data related to the Business; and (c) all goodwill of the Business and
other intangible assets of Seller used in the Business.
1.10 "Inventory" shall mean all of Seller's (a) finished goods
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Products, and (b) raw materials, work-in-process and supplies on hand or on
order as of the Closing Date for use in the Business, as determined by the
physical count provided for in Section 2.3(a); provided, however, that
"Inventory" shall not include any finished goods that Purchaser reasonably deems
to be not of good and saleable quality or to be obsolete; and shall not include
any pallets or other supplies that Purchaser reasonably deems to be in excess of
the short- term needs of the Business after the Closing, or not to be in readily
usable condition.
1.11 "Inventory Price" shall mean the lesser of Seller's direct cost
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of the Inventory as of the Closing Date, or the direct replacement cost thereof
as of the Closing Date, as reasonably determined by Purchaser's accountants in
accordance with generally accepted accounting principles consistently applied.
1.12 "Material Adverse Effect" shall mean a material adverse effect
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on (i) the ability of the Seller to perform its obligations under this
Agreement, (ii) the legality or validity of the conduct of the Business by
Seller prior to the Closing or by Purchaser after the Closing, or (iii) the
capacity of Seller prior to the Closing or of Purchaser after the Closing to use
or operate any of the Purchased Assets.
1.13 "Miscellaneous Assets" shall mean all of Seller's promotion and
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advertising materials relating to the Business, business records and books of
accounting relating to Business and all other assets identified on Schedule
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1.13.
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1.14 "Person" shall mean any individual or partnership, corporation,
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association, trust or other entity.
1.15 "Prepayments" shall mean Seller's obligations, to the extent not
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fulfilled as of the Closing Date, to deliver goods and/or services to customers
of the Business pursuant to cash prepayments or deposits received by Seller on
or before the Closing Date, as set forth on Schedule 1.15 hereto.
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1.16 "Purchased Assets" shall mean all of the Seller's right, title,
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interest and estate owned on the Closing Date in and to all of the following
assets intended to be sold to Purchaser hereunder:
(i) the Facilities;
(ii) the Contracts;
(iii) the Equipment;
(iv) the Intangible Property;
(v) the Inventory;
(vi) Seller's Accounts; and
(vi) the Miscellaneous Assets.
1.17 "Real Estate Escrow" shall mean the escrow established pursuant
to Section 2.5.
1.18 "Real Estate Escrow Agreement" mean the escrow agreement
described in Section 2.5.
1.19 "Seller's Accounts" shall mean all of the Seller's accounts and
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notes receivable generated in connection with the Business, excluding rebates
receivable from chemical and seed manufacturers.
1.20 "Seller's Accounts Purchase Price" shall be the amount to be
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paid by Purchaser hereunder for Seller's Accounts, calculated pursuant to
Section 2.3(b).
ARTICLE II
PURCHASE AND SALE OF PURCHASED ASSETS
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2.1 Purchase of Assets. Subject to the terms and conditions herein
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set forth, on the Closing Date, Purchaser will purchase and acquire, and Seller
will sell, assign, convey and transfer to Purchaser, the Purchased Assets and
the Business.
2.2 Consideration. (a) The total consideration for the purchase of
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the Purchased Assets and the Business as provided herein and Seller's other
obligations under this Agreement shall be the Settlement Amount (as defined in
Section 2.2(b) below) plus the Real Estate Escrow Amount plus Purchaser's
obligations under Article III.
(b) The cash portion of the purchase price hereunder (the "Settlement
Amount") shall be the sum of the Seller's Accounts Payable Purchase Price, plus
the Inventory Purchase Price, plus Five Hundred Thousand Dollars ($500,000.00),
minus the Real Estate Escrow Amount, and minus the dollar amount of the
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Prepayments shown on Schedule 1.15 that are to be assumed by Purchaser under
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Section 3.1.
(c) The purchase price hereunder shall be allocated as shown on Schedule
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2.2(c), which shall be updated on the Settlement Date to reflect the final
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calculation of the Settlement Amount. The parties will follow and use such
allocation on all income, sales, registration and other tax returns, filings or
other related reports made by either of them to any governmental agencies. To
the extent that disclosures of such allocation are required to be made by the
parties to the Internal Revenue Service ("IRS") under any provisions of the
Internal Revenue Code or any regulations thereunder, each of the parties will
disclose such reports to the others prior to filing the same with the IRS.
2.3 Purchase Price Calculations, Payments and Adjustments: (a)
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Within three (3) days after the Closing Date, Purchaser shall, together with
Seller's representatives, conduct a physical count of the Inventory as of the
Closing Date and based upon such physical count, Purchaser shall calculate the
Inventory Price and shall deliver to Seller a written statement
of such calculation. If within ten (10) days after its receipt of such statement
Seller shall not have notified Purchaser in writing of its objection to such
calculations setting forth in reasonable detail a reasonable basis for such
objection, such calculation of the Inventory Price shall be final and binding
upon the parties, absent manifest error. If Seller shall give timely written
notice of its objection as aforesaid, the parties shall negotiate in good faith
to resolve the dispute. If, within ten (10) days after Purchaser's receipt of
such notice of objection from Seller, such dispute shall not have been resolved,
the matter shall be submitted to Xxxxxxxx & Xxxx & Co., PA, independent
accountants, for a final and binding determination of the Inventory Price. All
fees and charges of Xxxxxxxx & Xxxx for such services shall be borne by the
parties equally. On the third (3/rd/) day after the final and binding
determination of the Inventory Price as provided herein, or on such earlier date
as the parties may agree upon (the "Settlement Date"), the Settlement Amount
shall be paid as follows: (i) if the Settlement Amount is a positive number
(that is, if the sum of the Seller's Accounts Payable Purchase Price, plus the
Inventory Purchase Price, plus Five Hundred Thousand Dollars ($500,000.00),
shall exceed the dollar amount of the Prepayments shown on Schedule 1.15),
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Purchaser shall pay the amount of such excess to Seller; or (ii) if the
Settlement Amount is a negative number (that is, if the sum of the Seller's
Accounts Purchase Price, plus the Inventory Purchase Price, plus Five Hundred
Thousand Dollars ($500,000.00), shall be less than the dollar amount of the
Prepayments shown on Schedule 1.15), Seller shall pay the amount of such
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shortfall to Purchaser; in either case by bank check or wire transfer of
immediately available funds to the account designated in writing by the party
entitled to receive such payment hereunder.
(b)(i) The Seller's Accounts Purchase Price shall be calculated as of the
Closing Date as follows:
(A) all Seller's Accounts created within thirty (30) days before the
Closing Date shall be valued at 100% of their face value;
(B) all Seller's Accounts created within thirty-one (31) to sixty (60)
days before the Closing Date shall be valued at 85% of their face
value;
(C) all Seller's Accounts created within sixty-one (61) to ninety (90)
days before the Closing Date shall be valued at 70% of their face
value; and
(D) all Seller's Accounts created more than ninety (90) days before the
Closing Date shall be value at 25% of their face value.
(ii) Following the Closing, the Seller's Accounts Purchase Price shall be
adjusted and paid as follows:
(A) All collections of Seller's Accounts during the ninety (90) day period
commencing on the Closing Date (the "Collection Period"), up to an
aggregate amount equal to the Seller's Accounts Purchase Price, shall
be retained by Purchaser, and all such collections during the
Collection Period in excess of that amount shall be promptly paid over
to Seller; and
(B) Upon expiration of the Collection Period, all Seller's Accounts then
unpaid and outstanding shall be reassigned to Seller, and if the total
collections of Seller's Accounts during the Collection Period shall
have been less than the Seller's Accounts Purchase Price, Seller shall
pay Purchaser the amount of such shortfall by bank check or wire
transfer of immediately available funds to Purchaser's account.
(iii) During the Collection Period, Purchaser shall make commercially
reasonable efforts to collect Seller's Accounts, consistent with its normal
collection practices which may include, without limitation, a refusal to extend
further credit to customers whose accounts are in arrears.
2.4 Expenses and Taxes of Transfer. All sales, use and transfer
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taxes and recording fees arising out of or relating to the Purchased Assets
shall be borne and paid for by the party who pursuant to applicable law incurs
the cost, fee or tax. Nothing contained in this Agreement shall be construed to
obligate or require the Purchaser to pay, or be liable for, any business,
occupation, withholding, income or similar taxes or any tax of any kind related
to any period prior to the Closing Date.
2.5 Real Estate Escrow. To secure against any decrease in the value
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of the Facilities resulting from any encumbrances, rights of way, easements,
encroachments or other exceptions or defects in title excluded from the coverage
of any title insurance policies on the Facilities obtained by Purchaser as of
the Closing Date but which may be revealed upon delivery to Purchaser of
property surveys covering the Facilities in form and substance satisfactory to
it, and from any costs or expenses incurred by Purchaser to remove, cure or
mitigate any such encumbrances, rights of way, easements, encroachments or other
exceptions or defects, at the Closing, Purchaser and Seller will enter into an
escrow agreement with Blethan, Gage & Xxxxxx, PLLP as escrow agent in the form
attached hereto as Exhibit 2 (the "Real Estate Escrow Agreement"), and Purchaser
will deliver the sum of $25,000.00 (the "Real Estate Escrow") to such escrow
agent by bank check or wire transfer of immediately available funds to the
account specified by such escrow agent for that purpose.
ARTICLE III
ASSUMED LIABILITIES
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Subject to the terms and conditions of this Agreement, Seller shall
assign or cause to be assigned, and Purchaser shall assume, pay, perform and
discharge all of Seller's obligations under the Prepayments that remain
unfulfilled as of the Closing Date, and all of Seller's obligations incurred or
arising under the Contracts, with respect to the period commencing on the day
following the Closing Date. Purchaser shall not assume, nor shall Purchaser be
obligated to pay, perform or discharge, any debts, obligations, contracts or
liabilities of Seller, whether fixed, unliquidated, absolute, contingent or
otherwise, not arising under a Prepayment or a Contract, or expressly set forth
in Schedule 3.1 including, without limitation, any federal, state or local tax
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liabilities, any indebtedness for monies borrowed, or any other liability.
ARTICLE IV
CLOSING AND POST-CLOSING DELIVERIES
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4.1 Time and Place. The consummation of the transactions
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contemplated by this Agreement shall take place on the Closing Date at the
offices of Frundt & Xxxxxxx, 000 Xxxx Xxxxx, Xxxx Xxxxx, XX 00000 or at such
other place as may be mutually agreed upon in writing between Purchaser and
Seller.
4.2 Deliveries at Closing by Purchaser. At the Closing, Purchaser
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shall execute and deliver to Seller such instrument or instruments reasonably
satisfactory to Seller and its counsel as shall be reasonably necessary to
effect the assumption by Purchaser of all of the undischarged obligations and
liabilities of Seller under the Contracts which Purchaser has agreed to assume
in accordance with the provisions of Section 3.1 hereof.
4.3 Deliveries at Closing by Seller. At the Closing, Seller shall,
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subject to the terms and conditions of this Agreement, sell, assign, convey and
transfer the Purchased Assets or cause the same to be assigned, conveyed and
transferred to Purchaser by delivery to Purchaser of all such bills of sale,
warranty deeds, endorsements, assignments and other good and sufficient
instruments of transfer and conveyance as shall be effective to vest in
Purchaser title to the Purchased Assets and as shall be reasonably satisfactory
in form and substance to Purchaser and its counsel.
4.4 Other Deliveries at Closing. At the Closing, Purchaser and
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Xxxxx Xxxxxxx shall enter into an Employment and Noncompetition Agreement in
substantially the form attached hereto as Exhibit 1 and Purchaser and Seller
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shall enter into the Real Estate Escrow Agreement in substantially the form
attached hereto as Exhibit 2.
4.5 Closing Document Escrow. All documents delivered at the Closing
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pursuant to Section 4.2, 4.3 and 4.4 hereof shall be held in escrow by Frundt &
Xxxxxxx, XX until payment of the Settlement Amount pursuant to Section 2.3(a),
at which time they shall be released to their intended recipients.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller represents and warrants to Purchaser as follows:
5.1 Organization and Good Standing. Seller is a corporation, validly
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existing and in good standing under the laws of the State of Minnesota and it
has all requisite power and authority to own, lease and operate the Purchased
Assets and to carry on the Business.
5.2 Corporate Authority. Seller has full corporate authority and
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power to execute, deliver and perform this Agreement in accordance with its
terms, this Agreement and all the transactions contemplated hereby on its part
to be performed have been duly authorized by all requisite action of Seller, and
no further authorization or approval of its stockholders or directors is
necessary in order to enable it to enter into and perform the same.
5.3 No Breach. Subject to the granting of such consents, waivers and
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approvals by third parties to those Contracts identified on Schedule 5.3 or
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otherwise required under any of the obligations or commitments described on
Schedule 5.8 in order to permit the assignment of such Contracts or the transfer
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of the Purchased Assets to the Purchaser or otherwise to consummate the
transactions contemplated by this Agreement, and the transactions contemplated
hereby, the execution and consummation of this Agreement will not result in a
breach, violation or default or give rise to an event which, either with or
without notice or the passage of time, or both, would result in a breach,
violation or default of any of the terms or provisions of (i) its Certificate of
Incorporation or Bylaws, (ii) any statute, or governmental regulation or rule,
or (iii) any note, bond, mortgage, lease, license, permit, indenture, agreement,
judgment, decree, order or other instrument, obligation or restriction to which
Seller is a party or by which Seller or any of the Purchased Assets may be bound
or affected.
5.4 Valid Agreement. This Agreement constitutes Seller's valid and
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binding obligation, enforceable against it in accordance with its terms, except
that such enforcement may be subject to applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting the
rights and remedies of creditors generally and to the effect of general
principles of equity (including the availability of equitable and other
discretionary remedies and equitable defenses), whether considered in an action
in law or in equity.
5.5 Financial Statements. The Financial Statements of the Seller for
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the years ended September 30, 1998 and 1999 included in Schedule 5.5, fairly
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represent in all material respects the financial condition of the Business as of
the dates thereof and the results of operations for the periods then ended and
have been consistently prepared, in all material respects, in accordance with
generally accepted accounting principles.
5.6 Conduct of Business. Except as and to the extent disclosed in
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Schedule 5.6A, since September 30, 1999, Seller has:
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(i) conducted the Business in the ordinary course and has not
acquired or sold, transferred, permitted to lapse or disposed of any of the
Purchased Assets or made any capital expenditures with respect thereto
except in the ordinary course of business;
(ii) not incurred any obligations or liabilities, absolute or
contingent, for which Purchaser will be liable or otherwise responsible
except obligations under Contracts incurred in the ordinary course of
business;
(iii) not mortgaged, pledged or subjected any of the Purchased
Assets to any lien, charge or any other encumbrance, other than the lien of
current personal or real property taxes not yet due and payable, if any;
(iv) not materially changed its credit practices or other business
policies or practices;
(v) neither created, incurred, assumed, guaranteed nor otherwise
become liable with respect to any indebtedness for money borrowed relating
to or otherwise affecting any of the Purchased Assets other than as
provided in the Contracts;
(vi) not suffered any damage, destruction or loss, whether or not
covered by insurance, materially adversely affecting the Purchased Assets;
and
(vii) not experienced any materially adverse change in its
relationships with customers or vendors of supplies used by Seller in the
Business, except changes in the ordinary course of business which do not
have a Material Adverse Effect.
Schedule 5.6B contains a complete and accurate list of the ten (10) largest
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customers and ten (10) largest suppliers of Seller, for the twelve (12) months
ended December 31, 1999. To the Seller's best knowledge, except as described on
Schedule 5.6B, there has been no termination or cancellation of the business
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relationship of Seller with any material vendor or any customer or group of
customers and none is threatened or reasonably anticipated.
5.7 Title to Purchased Assets. Except as and to the extent disclosed
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in Schedule 5.7, Seller has good and marketable title to the Purchased Assets
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free and clear of all mortgages, liens, pledges, charges, encumbrances or
restrictions of any nature whatsoever, except for minor imperfections of title
and liens and encumbrances not otherwise identified in the Disclosure Schedules
which do not materially detract from the value of or impair the use of the
Purchased Assets as such assets are currently utilized and the lien of current
taxes not yet due and payable, subject only to the obligation to perform the
executory obligations of the Seller under the Contracts after the Closing Date.
5.8 Contracts. Except as set forth in the Contracts or on Schedule
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5.8, neither the Seller nor any of the Purchased Assets is subject to or bound
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by any agreement, contract, lease, license, commitment or restriction which in
any way affects, or after the Closing will affect, any of the Purchased Assets
or the use or operation thereof, or which requires the waiver of any term or
condition or the approval or consent of any third party to the consummation of
the transactions contemplated hereby or which would be violated or would result
in any liability or any acceleration of liability to the Seller or the Purchaser
without such waiver, approval or consent. There is not, with respect to any
contract, agreement, commitment, restriction or other instrument or document to
which Seller is a party or by which any of the Purchased Assets is bound, any
existing default (or any event which, with or without notice or lapse of time,
or both, would constitute a default) on the part of the Seller that would have a
Material Adverse Effect, and the Seller has received no notice of any such
default (or event). The Contracts include all agreements to which Seller is a
party or by which it or its properties are or may be bound, that relate to the
Business or the Purchased Assets.
5.9 Compliance with Applicable Law
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(a) The business, operations and activities of the Seller, insofar
as they relate to the Purchased Assets, are not in violation of any applicable
municipal, local, state or federal laws (excluding laws regulating the discharge
into the environment of toxic or otherwise hazardous substances that are
addressed exclusively in Section 5.10), ordinances, certificates of occupancy,
rules or regulations, which violation or the correction of which has resulted
in or might have a Material Adverse Effect. Except as disclosed on Schedule 5.9A
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or Schedule 5.10, the Seller is not presently operating under, subject to, in
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violation of or in default with respect to, any judgment, order, writ,
injunction or decree of any court or federal, state, municipal, or other
governmental department, commission, board, agency or instrumentality limiting
or adversely affecting the Seller's ability to conduct the Business.
(b) Except as disclosed in Schedule 5.9B or Schedule 5.10, Seller
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possesses all permits, licenses, orders and approvals of all federal, state and
local governmental or regulatory bodies required for Seller to conduct the
Business and to use the Purchased Assets in connection therewith. None of such
permits, licenses, orders or approvals will be affected by the consummation of
the transactions contemplated by this Agreement. All such permits, licenses,
orders or approvals are included in the Intangible
Properties to be transferred to Purchaser hereunder, all are transferable to
Purchaser at the Closing, and no approval or authorization of or filing with any
governmental authority on the part of Seller is required as a condition to the
execution and delivery of this Agreement, or the consummation by Seller of the
transactions contemplated hereby, except as otherwise contemplated hereby.
5.10 Environmental Matters. Except for such matters that are
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disclosed on Schedule 5.10,:
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(a) The Seller is in compliance with all applicable governmental
rules and regulations relating to environmental laws;
(b) The Seller does not generate, transport, treat, store, or
dispose of any hazardous wastes on any of the Facilities, and none of the
Facilities contains (including without limitation, containment by means of any
storage tank, drum, container or barrel) any Hazardous Substance;
(c) There are no present or past environmental conditions or
violations of any existing environmental law in any way relating to the Seller
or the Facilities caused by the Seller, or any other Person, that are likely to
lead to the imposition of any liability or that would give rise to any civil or
criminal litigation, suit, action, claim, proceeding or investigation by any
Person, including any governmental authority;
(d) The Seller has not sent, transported, caused the transportation
of or disposed of any Hazardous Substance at any site, location or facility;
(e) There are no above-ground or underground waste disposal units,
including landfills, surface impoundments, pits, ponds or lagoons, whether now
in use or formerly used and still containing contaminants, or any above-ground
or underground storage tanks, or subsurface disposal systems, including
injection xxxxx, dry xxxxx, xxxxx fields or septic systems, on the Facilities;
and
(f) There is no pending or threatened civil or criminal litigation
or suit, action, claim, proceeding or investigation by any Person, including any
governmental authority, or written notice of violation of, or formal
administrative proceeding relating to, any environmental laws involving the
Seller, the Facilities or any of the other Purchased Assets, and there is no
basis for any such civil or criminal litigation, suit, action, claim, proceeding
or investigation.
(g) For purposes of this Agreement, "Hazardous Substance" shall
include, without limitation: (i) "hazardous substances" as that term is defined
by the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. 9601 et seq., (ii) "hazardous waste" as that term is
defined by the Resource Conservation and Recovery Act of 1976, as amended, 42
U.S.C. 6901 et seq., or other applicable federal, state, or local law, rule,
regulation, ordinance or requirement, all as amended or hereafter amended; (iii)
any petroleum or petroleum derivatives which
are liquid at ambient air temperature and pressure; (iv) any radioactive
material in any form or condition; and (v) asbestos in any form or condition.
5.11 Legal Proceedings. Except as disclosed in Schedule 5.11, there
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are no civil, criminal, administrative or other proceedings or investigations
pending or, to the best of its knowledge, threatened, against it or relating to
the Purchased Assets, which, if adversely determined, might have a Material
Adverse Effect or which questions or challenges the validity of this Agreement,
any of the transactions contemplated hereby or any action taken or to be taken
by it in connection herewith, and it has no knowledge of any basis for any such
proceeding or investigation.
5.12 ERISA: Labor Matters.
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(a) Except as described on Schedule 5.12, Seller has no employee
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benefit or welfare plans.
(b) There are no violations by Seller of any applicable legal
requirements under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or any other similar laws, rules or regulations. No liability
to the Pension Benefit Guaranty Corporation or to any employees of Seller will
be incurred by the Purchaser upon consummation of the transactions contemplated
hereby.
(c) There is no complaint, strike, dispute, slow down or stoppage
involving Seller's employees pending or, to Seller's knowledge, threatened
against the Seller or any other Person which may affect any of the Purchased
Assets or the consummation of the transactions contemplated hereby.
(d) No person or party (including, but not limited to, any
governmental authority) has asserted any claim or to the Seller's best
knowledge, has any basis for any action or proceeding, against the Seller
arising out of any statute, ordinance or regulation relating to discrimination
in employment or employment practices, or occupational safety and health
standards (including, without limitation, The Fair Labor Standards Act, as
amended; Title VII of the Civil Rights Act of 1964, as amended; or the Age
Discrimination in Employment Act of 1967, as amended.
5.13 Taxes. All federal, state, and local tax returns and reports
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required by law to be filed by Seller, the non-filing of which could have a
Materially Adverse Effect, have been filed and all taxes shown thereon to be due
and payable by it have been paid.
5.14 Condition of Assets. Except as disclosed on Schedule 5.14:
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(a) The Purchased Assets constitute all the assets and other
properties necessary or appropriate for the conduct of the Business as currently
conducted by Seller.
(b) The Facilities are structurally sound with no known material
defects, in substantially good operating condition and repair, are reasonably
adequate for the uses to which they are being put, and are in compliance with
all applicable health, fire, environmental, safety, zoning, building and other
laws and ordinances.
(c) All of the Equipment being acquired hereunder is and on the
Closing Date will be in good condition and repair, ordinary wear and tear
excepted, and free from defects.
(d) There are no patents, patent applications, trademarks, trademark
applications or registrations, pending or existing, owned by, registered in the
name of, or licensed by Seller or in which Seller has any rights that are
currently being utilized in the Business, there are no material infringing uses
of any intellectual property rights included in the Intangible Property and
Seller has not received any notice of any pending conflict with the rights of
any other Person with respect to such intellectual property rights.
(e) Each of the Contracts is in full force and effect as of the date
hereof. Seller and, to the best of Seller's knowledge, the other parties thereto
are in compliance with the material terms thereof. No event exists which, after
the passage of time or the giving of notice, or both, would give rise to a
material breach, violation or default under any of the Contracts, except as
otherwise noted herein or in the Disclosure Schedules.
(f) All information provided in the Financial Statements, this
Agreement and the Disclosure Schedules, is complete and correct in all material
respects and does not contain any misleading statement or omit any material
information, nor does there exist any item or matter involving the internal
operations or conditions of the Seller of a material nature that has either not
been disclosed to Purchaser in the Financial Statements, this Agreement or the
Disclosures Schedules or has been disclosed in a manner that is intended to or
is likely to mislead Purchaser.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OR PURCHASER
-------------------------------------------
Purchaser hereby represents and warrants to Seller as follows:
6.1 Organization and Good Standing. Purchaser is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware and is qualified to do business in the state of Minnesota.
6.2 Corporate Authority. Purchaser has full authority and power to
-------------------
execute and to perform this Agreement in accordance with its terms. This
Agreement and the transactions contemplated hereby have been duly authorized by
all requisite corporate action of Purchaser and no further authorization or
approval of the shareholders or directors of Purchaser is necessary in order to
enable Purchaser to enter into and perform the same.
6.3 No Breach. The transactions contemplated hereby will not result
---------
in a breach, violation or default or give rise to an event which, either with or
without notice or the passage of time, or both would result in a breach,
violation or default of any of the terms or provisions of Purchaser's
Certificate of Incorporation or By-Laws, or of any statute, governmental rule or
regulation, note, bond, mortgage, license, permit, indenture, agreement,
judgment, decree or other instrument or restriction to which Purchaser is a
party or by which Purchaser may be bound.
6.4 Valid Agreement. This Agreement constitutes the valid and
---------------
binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms (except that enforcement may be subject to applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar laws
affecting the rights and remedies of creditors generally and to the effect of
general principles of equity (including the availability of equitable and other
discretionary remedies and equitable defenses), whether considered in an action
in law or in equity.)
ARTICLE VII
-----------
ADDITIONAL COVENANTS AND AGREEMENTS
-----------------------------------
7.1 Announcements. Seller and Purchaser agree that no announcement
-------------
or press release shall be made by either Seller or Purchaser relating to the
transactions contemplated hereby unless approved in writing in advance by both
parties hereto, except, however, that any party hereto may, upon not less than
three (3) business days notice having been given to the other party hereto, make
such announcement, press release or other report as may be required by any
applicable state or federal law or regulation without having to obtain the
advance written approval of the other party hereto.
7.2 Seller's Employees. Effective as of the Closing Date, only those
------------------
employees listed on Schedule 7.2 shall be offered employment by the Purchaser.
------------
Schedule 7.2 lists the dates of hire, dates of birth, current compensation and
------------
date and amount of salary raise and/or bonus of each such employee. Seller shall
be responsible for all benefits accrued through the Closing Date relating to
employees of the Business including, without limitation, all salary, pension,
bonus, medical and life insurance, severance, holiday, vacation and sick-pay
benefits, and shall indemnify Purchaser from and against any and all
liabilities, losses, damages, claims, costs and expenses incurred by or asserted
against Purchaser arising therefrom.
7.3 Bulk Sales Act. Purchaser waives compliance by Seller with the
--------------
provisions of the Uniform Bulk Sales Act as applicable in the State of
Minnesota; provided, however that Seller shall indemnify Purchaser for any loss,
cost, expense or other charge (including, without limitation reasonable legal
fees and expenses) of Purchaser resulting from or with respect to any liability
arising from Seller's noncompliance with the provisions of the Uniform Bulk
Sales Act as applicable in any jurisdiction to such transactions. The provisions
of this Section 7.3 shall survive the Closing for a period of three (3) years.
7.4 Further Assurances and Access to Records. (a) Seller hereby
----------------------------------------
agrees that it will at any time and from time to time after the Closing Date,
upon request of and at the expense of Purchaser, execute, acknowledge and
deliver, or will cause to be
done, executed, acknowledged and delivered all such further acknowledgments,
deeds, assignments, transfers, conveyances and assurances as may be reasonable
and necessary for the better assigning, conveying and transferring to Purchaser
and to its respective successors and assigns, or for aiding and assisting in
collecting and reducing to possession, any and all of the Purchased Assets to be
conveyed to Purchaser as provided herein.
(b) Purchaser hereby agrees that from and after the Closing, Seller,
its authorized representatives, and representatives of federal and state taxing
authorities shall have full access during normal business hours to all books and
records delivered to Purchaser by Seller pursuant to Sections 4.3 and 11.1 or
which otherwise concern transactions relating to the Purchased Assets.
Purchaser shall maintain such books and records for a period of not less than
six (6) years following the Closing.
(c) The provisions of this Section 7.4 shall survive the Closing and
the conveyance of the Purchased Assets to Purchaser hereunder for a period of
six (6) years.
7.5 Post-Closing Environmental Indemnity.
------------------------------------
Notwithstanding anything in this Agreement to the contrary, including
without limitation any disclosures or disclaimers contained in any of the
Disclosure Schedules, Seller agrees to be responsible for, and indemnify and
hold Purchaser harmless from and against, any and all liabilities, losses,
damages, claims, costs, and expenses of any nature, whether absolute,
contingent, or otherwise, arising out of or relating to: (i) hazardous waste
management program violations or alleged violations arising from Seller's
operation of either of the Facilities prior to Closing, (ii) any violation of or
liability pursuant to any environmental law (including common law), resulting
from any activities or operations of, or Hazardous Substances (as such term is
defined in Section 5.10(g)) used by or under the control of, Seller; (iii) any
pollution, contamination, or other environmental conditions at either of the
Facilities existing on or before the Closing Date; (iv) any physical or
operational condition at either of the Facilities existing on or before the
Closing Date that prevents such Facility from being able to operate consistently
in compliance with any law, regulation, order or permit condition in effect as
of the Closing Date; and (v) any breach of any representation, warranty or
covenant contained in Section 5.10 or this Section 7.5. Seller's obligations
under this Section 7.5 shall survive the Closing and shall continue until the
expiration of all statutes of limitation applicable thereto. Except as provided
herein, Purchaser agrees to be responsible for compliance with the laws
applicable to, and the environmental conditions created by, Purchaser's
operations and activities at the Facility after the Closing Date.
7.6 Property Tax Proration.
----------------------
Real and personal property taxes attributable to the Purchased Assets
shall be allocated between Seller and Purchaser on the basis of the number of
days in the
applicable tax year of Seller elapsed through and including the Closing Date
(which portion shall be allocated to Seller) as compared with the number of days
in such tax year elapsing after the Closing Date (which portion shall be
allocated to Purchaser).
ARTICLE VIII
CONDITIONS PRECEDENT OF PURCHASER
---------------------------------
The obligation of Purchaser to consummate the transactions contemplated hereby
is, at the option of Purchaser, subject to the fulfillment prior to or on the
Closing Date of each of the following conditions, any one or more of which may
be waived in writing by Purchaser:
8.1 Covenants Performed. Seller shall have performed and complied
-------------------
or shall have caused the performance and compliance in all material respects
with all covenants and agreements required by this Agreement on its respective
part to be performed or complied with prior to or on the Closing Date (including
delivery of all documents contemplated in Section 4.3), and Purchaser shall have
received a certificate to such effect executed by the President or a Vice
President and the Secretary or Treasurer or an Assistant Secretary of Seller
dated the Closing Date.
8.2 Representations and Warranties True. All of Seller's
-----------------------------------
representations and warranties in this Agreement shall have been accurate in all
material respects as of the date of this Agreement and shall be accurate in all
material respects as of the Closing Date as if made on the Closing Date, without
giving effect to any supplement to this Agreement or the Disclosure Schedules.
8.3 Resolution of Directors. Seller shall have delivered to
-----------------------
Purchaser copies of resolutions of its Board of Directors and stockholders
authorizing or ratifying the execution, delivery and performance by it of this
Agreement and authorizing or ratifying acts of its officers and employees in
carrying out the terms and provisions of this Agreement, certified by its
corporate Secretary.
8.4 Confirmation of Title. Purchaser shall have received from
---------------------
Seller, at Seller's expense, in form and substance satisfactory to Purchaser, in
its sole discretion, updated abstracts of title covering the Facilities,
together with such additional documentary evidence of title to the Facilities as
Purchaser may request in order to enable it to obtain an A.L.T.A. form of
extended title insurance covering the Facilities.
8.5 Xxxxxxxxx Xx Center Acqusition. Purchaser shall have acquired,
------------------------------
on or as of the Closing Date, the agri-business assets of Xxxxxxxxx Xx Center
Inc., an Iowa corporation, pursuant to an Asset Purchase Agreement in
substantially the form of this Agreement, for a purchase price (excluding
inventory and accounts receivable) not to exceed $350,000.00.
8.6 Consents Obtained. All consents, waivers, authorizations and
-----------------
approvals required for the sale and transfer of the Purchase Assets to Purchaser
at the Closing shall have been obtained.
8.7 Other Deliveries Made. The Employment Agreement, the Real
---------------------
Estate Escrow Agreement and the Noncompetition Agreement, each fully executed by
Xxxxx Xxxxxxx, shall have been delivered to Purchaser pursuant to Section 4.4.
ARTICLE IX
CONDITIONS PRECEDENT OF SELLER
------------------------------
The obligations of Seller to consummate the transactions contemplated
hereby are, at the option of Seller, subject to the fulfillment prior to or on
the Closing Date of each of the following conditions, any one or more of which
may be waived in writing by Seller:
9.1 Covenants Performed. Purchaser shall have performed and complied
-------------------
or shall have caused the performance and compliance in all material respects
with all covenants and agreements required by this Agreement to be performed or
complied with by Purchaser prior to or on the Closing Date (including the
deliveries contemplated in Section 4.2), and Seller shall have received a
certificate to such effect executed by the Chief Executive Officer or the Chief
Operating Officer and the Secretary or Chief Financial Officer or an Assistant
Secretary of Purchaser.
9.2 Representation and Warranties True. All of Purchaser's
----------------------------------
representations and warranties in this Agreement shall have been accurate in all
material respects as of the date of this Agreement and shall be accurate in all
material respects as of the Closing Date as if made on the Closing Date.
9.3 Resolutions of Directors. Purchaser shall have delivered to
------------------------
Seller copies of the resolutions of its Board of Directors authorizing or
ratifying the execution and performance of this Agreement and authorizing or
ratifying acts of its officers and employees in carrying out the terms and
provisions of this Agreement certified by the corporate Secretary or Assistant
Secretary of Purchaser.
9.4 Instruments of Assumption. Purchaser shall have delivered to
-------------------------
Seller instruments, in form and substance satisfactory to Seller, whereby
Purchaser assumes or causes to be assumed all of the obligations Purchaser has
agreed to assume hereunder, as provided in Section 3.1.
ARTICLE X
SURVIVAL AND INDEMNIFICATION
----------------------------
10.1 Survival of Representations, Etc. All representations and
---------------------------------
warranties and agreements made by a party in this Agreement or pursuant hereto
shall not be affected by any investigation at any time made by or on behalf of
any other party
hereto and shall survive the Closing hereunder but shall terminate and expire
upon the expiration of twenty-four (24) months after the Closing Date, except as
otherwise specifically provided in this Agreement.
10.2 Indemnification by Seller. Seller hereby agrees to indemnify
-------------------------
and hold Purchaser harmless from and against the following:
(1) Any and all liabilities, losses, damages, claims, costs and
expenses of Purchaser of any nature, whether absolute, contingent or
otherwise relating to the conduct of the Business prior to the Closing Date
or to the use or ownership of the Purchased Assets prior to the Closing
Date which are not expressly assumed by Purchaser as herein provided;
(2) Any and all damages or deficiencies resulting from any
misrepresentation, breach of any warranty, or non-fulfillment of any
covenant or agreement on the part of Seller contained in this Agreement
incurred by Purchaser prior to the expiration of the representation,
warranty, covenant or agreement which has been breached or not fulfilled;
and
(3) Any and all claims, actions, suits, proceedings, demands,
assessments or judgments, costs and expenses (including reasonable
attorneys fees) incident to any of the foregoing, including, without
limitation, any action taken against Purchaser by any person under the
provisions of the Uniform Bulk Sales Law of any state.
10.3 Indemnification by Purchaser. Purchaser hereby agrees to
----------------------------
indemnify and hold Seller and Subsidiary harmless from and against the
following:
(1) Any and all liabilities, losses, damages, claims, costs and
expenses of Seller of any nature, whether absolute, contingent or otherwise
relating to the Purchased Assets which (a) have been expressly assumed by
Purchaser as herein provided or (b) relate to the use or ownership of the
Purchased Assets after the Closing Date;
(2) Any and all damages or deficiencies resulting from any
misrepresentation, breach of any warranty, or non-fulfillment of any
covenant or agreement on the part of Purchaser contained in this Agreement
incurred by Seller prior to the expiration of the representation, warranty,
covenant or agreement which has been breached or not fulfilled; and
(3) Any and all claims, actions, suits, proceedings, demands,
assessments or judgments, costs and expenses (including reasonable
attorneys fees) incident to any of the foregoing.
10.4 Indemnification Procedures.
--------------------------
(a) A party seeking indemnification hereunder ("Indemnitee") shall
give written notice to the party from which indemnification is sought (the
"Indemnitor") of any matter with respect to which Indemnitee seeks to be
indemnified (a "Claim") within one hundred twenty (120) days after Indemnitee
first has knowledge of such Claim, unless such Claim results from any action,
suit or proceeding against the Indemnitee (a "Litigation"), in which case such
notice shall be given promptly following Indemnitee's receipt of service of
process in such Litigation, stating in such notice the nature of the Claim, all
facts known to Indemnitee giving rise to such Claim, the amount or an estimate
of the amount of the liability arising therefrom and the status of settlement or
other negotiations, if any.
(b) a claim for indemnification may, at the option of the
Indemnitee, be asserted as soon as any Claim has been asserted by a third party
in writing, regardless of whether actual harm has been suffered or out-of-pocket
expenses incurred, provided that the Indemnitee shall have reasonably determined
--------
that it may be entitled to indemnification hereunder in respect to such Claim.
(c) After a Claim is made, the Indemnitee shall permit the
Indemnitor, at Indemnitor's option and expense, to assume the defense of such
action, suit, proceeding, claim, demand or assessment with full authority to
conduct such defense and the Indemnitee will cooperate fully in such defense.
Indemnitor and Indemnitee shall cooperate with each other in the defense of any
Claim and each shall have notice of, and access to, all discovery, trial or
other proceedings and all documents relating to any such Claim.
(d) Any delay or failure to notify the Indemnitor shall relieve the
Indemnitor of its obligations hereunder only to the extent, if at all, that it
is prejudiced by reason of such delay or failure. The Indemnitee shall have the
right to employ separate counsel in any of the foregoing actions, claims or
proceedings and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of the Indemnitee. In the event that
the Indemnitor fails to assume the defense of any Claim within thirty (30) days
after the Indemnitee's notice of the Claim, the Indemnitee shall have the right
to undertake the defense, compromise or settlement of such action, claim or
proceeding for the account of the Indemnitor, subject to the right of the
Indemnitor to assume the defense of such action, claim or proceeding with
counsel reasonably satisfactory to the Indemnitee at any time prior to the
settlement, compromise or final determination thereof. Anything in this Section
10.4 to the contrary notwithstanding, the Indemnitor shall not, without the
Indemnitee's prior written consent, settle or compromise any action or claim or
proceeding or consent to entry of any judgment with respect to any such action
or claim unless such settlement or compromise requires solely the payment of
money damages by the Indemnitor and includes as an unconditional term thereof
the release by the claimant or the plaintiff of the Indemnitee from all
liability in respect of such action, claim or proceeding.
10.5 Indemnification Thresholds. Notwithstanding the foregoing,
--------------------------
neither the Purchaser nor the Seller shall have any indemnity obligation under
this
Section 10 to the other party, unless the amount of loss or damage for any
single claim for which a party would be liable exceeds $5,000.00 and unless the
aggregate amount of loss or damage for all such claims for which a party would
be liable exceeds $10,000.00 in the aggregate, and then in such case, the
indemnification amount shall be to the full extent of the damage or losses. In
addition, in the case of the Seller, any indemnity obligation under this Section
10 shall in no event exceed the purchase price for the Purchased Assets and the
Business. The provisions of this Section 10.5 shall not apply to Seller's
indemnification obligations under Article VII.
10.6 Claims Against Real Estate Escrow. Purchaser may make a Claim
---------------------------------
against the Real Estate Escrow in any amount to which it may be entitled under
Section 2.5 or this Article 10. Neither the making of nor the failure to make
such a Claim will constitute an election of remedies or limit Purchaser in any
manner in the enforcement of any other remedies that may be available to it.
ARTICLE XI
GENERAL
-------
11.1 Books and Records. On or promptly following the Closing Date,
-----------------
Seller shall deliver into Purchaser's custody all books, records, and other
information of Seller relating to the Purchased Assets, including without
limitation the documents included among the Miscellaneous Assets.
11.2 Notices. All notices under this Agreement shall be in writing
-------
and shall be effective (I) upon personal delivery against receipt therefor, or
(ii) if sent by mail, three (3) business days after deposit in the United States
Postal Service, first class, postage prepaid, registered or certified, return
receipt requested. All notices given hereunder shall be addressed
(a) in the case of Seller, to:
Crop Builders, Inc.
XX Xxx 000
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Mr. Xxxxx Xxxxxxx
with a copy to
Frundt & Xxxxxxx, XX
000 Xxxx Xxxxx
XX Xxx 00
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
and (b) in the case of Purchaser, to:
Xxxxxxx-Xxxxx, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
with a copy to Xxxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
And a copy to Blethan Gage & Xxxxxx, PLLP
000 Xxxxx Xxxxxx Xxxxxx
XX Xxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
or to such other address or to such other person as any party hereto shall have
last designated by notice to the other parties hereto in accordance with this
Section 11.2.
11.3 Integration and Modification. This Agreement contains the
----------------------------
entire agreement among the parties hereto with respect to the transactions
contemplated hereby and there are no agreements, warranties or representations
which are not set forth herein. For purposes of any disclosure required
hereunder, disclosure of a matter on any Disclosure Schedule shall be considered
disclosure for all purposes of this Agreement. All prior negotiations,
agreements and understandings are superseded hereby. This Agreement may not be
modified or amended except by an instrument in writing signed by the party
against which such modification or amendment is sought to be enforced.
11.4 Governing Law. This Agreement shall be governed by and
-------------
construed and enforced in accordance with the laws of the State of Delaware,
without giving effect to the principles of conflicts of laws thereof.
11.5 Binding Effect; No Assignment. This Agreement shall be binding
-----------------------------
and inure exclusively to the benefit of the parties and the successors, assigns
and legal representatives of the parties hereto and no other Person shall be
entitled to claim the benefit of or the right to enforce any provision of this
Agreement which creates or may create any right or obligation between the
parties hereto; provided, however, that this Agreement and all rights hereunder
may not be assigned by either party hereto except by or with the written consent
of the other party hereto.
11.6 Counterparts. This Agreement may be executed simultaneously in
------------
any number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
11.7 Miscellaneous Rules of Construction. The Article and Section
-----------------------------------
headings in this Agreement are for convenience of reference only and shall not
be deemed to alter or affect any provision hereof. References in this Agreement
to Sections, Schedules and Exhibits are to Sections of, and Schedules and
Exhibits to, this Agreement, unless otherwise indicated. The words "hereof",
"herein", "hereunder" and comparable terms refer to the entirety of this
Agreement and not to any particular Article, Section or other subdivision hereof
or attachment hereto. Words in the singular include the plural and words in the
plural include the singular. This Agreement shall be construed without regard
to any presumption or other rule requiring construction against the party
causing this Agreement or any party thereof to be drafted.
11.8 Expenses.
--------
(a) Seller and Purchaser each represent and warrant to each other
that there is no broker, finder or similar person involved or in any way
connected with the transaction provided for herein and each agrees to hold the
other harmless from and against all claims based upon a relationship or alleged
relationship with it for brokerage or finder's fees or commissions of any such
person.
(b) Whether or not the transactions contemplated hereby are
consummated, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall, except as otherwise specifically
provided herein, be paid by the party incurring such expenses.
11.9 Waiver. No delay on the part of any party hereto in exercising
------
any power or right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any power or right hereunder preclude other or
further exercise thereof or the exercise of any other power or right. No waiver
shall be enforceable against any party hereto unless in writing, signed by the
party against whom such waiver is claimed, and shall be limited solely to the
one event.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
CROP BUILDERS, INC. (Seller)
By: /s/ Xxxxx Xxxxxxx
------------------------------
President
XXXXXXX-XXXXX, INC. (Purchaser)
By: /s/ Xxxx X. Xxxxxx
------------------------------
Managing Director-Financial
Planning
