Exhibit 10.1
ASSET PURCHASE AGREEMENT
Dated May 15, 2009
among
RONSON CORPORATION,
a New Jersey corporation,
and
RONSON AVIATION, INC.,
a New Jersey corporation,
SELLER,
HAWTHORNE TTN HOLDINGS, LLC
a Delaware Limited Liability Company,
BUYER.
Sale by Ronson Corporation of
Certain of the Assets and
the Business of its Wholly Owned Subsidiary,
Ronson Aviation, Inc. to
Hawthorne TTN Holdings, LLC
TABLE OF CONTENTS
Page
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Section 1. SALE AND PURCHASE OF ASSETS; ASSUMPTION OF LIABILITIES.............1
(a) Sale and Transfer of Assets......................................1
(b) Excluded Assets..................................................2
(c) Assumption of Liabilities and Obligations........................2
(d) Excluded Liabilities.............................................3
Section 2. PURCHASE PRICE. PAYMENT............................................3
(a) Purchase Price...................................................3
(b) Allocation of Purchase Price.....................................3
Section 3. THE CLOSING........................................................4
(a) Time and Place of Closing........................................4
(b) Aviation Employees as of the Closing Date........................4
(c) Due Diligence as Condition Precedent to the Closing..............4
(d) Shareholder Approval.............................................4
Section 4. REPRESENTATIONS AND WARRANTIES OF SELLER...........................5
(a) Organization and Good Standing...................................5
(b) Authority Execution and Delivery.................................5
(c) Consents, No Conflicts, Etc......................................6
(d) No Other Agreements to Sell the Assets...........................6
(e) Copies of Documents..............................................6
(f) Properties.......................................................6
(g) Litigation.......................................................7
(h) Compliance with Laws; Permits....................................7
(i) Insurance........................................................8
(j) No Brokers.......................................................8
(k) Transactions with Certain Persons................................8
(l) Consequences of Sale and Purchase................................8
(m) Environmental Matters............................................8
(n) Tax Matters.....................................................10
(o) Disclosure......................................................10
(p) Assets..........................................................10
(q) Government Contracts............................................10
(r) Utilities.......................................................10
(s) Financial Statements............................................10
(t) No Undisclosed Liabilities......................................11
(u) No Material Adverse Change......................................11
(v) Employee Benefits...............................................11
(w) Contracts; No Defaults..........................................12
(x) Sufficiency of Assets...........................................13
(y) Solvency........................................................13
Section 5. REPRESENTATIONS AND WARRANTIES OF BUYER...........................14
(a) Organization and Good Standing..................................14
(b) Authority; Execution and Delivery...............................14
(c) Consents, No Conflicts, Etc.....................................14
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(d) No Brokers......................................................14
(e) Disclosure......................................................14
Section 6. CERTAIN COVENANTS AND AGREEMENTS..................................15
(a) Nondisclosure...................................................15
(b) Conduct of Business.............................................15
(c) Changes in Representations and Warranties.......................15
(d) Mutual Cooperation..............................................15
(e) Access to Business..............................................16
(f) Further Assurances..............................................16
(g) Names...........................................................16
(h) Tax Matters.....................................................17
(i) Product Liability Insurance.....................................17
(j) Interim Financial Statements....................................17
(k) Noncompetition, Nonsolicitation and Nondisparagement............18
(l) Exclusivity.....................................................19
Section 7. CONDITIONS TO OBLIGATIONS OF BUYER................................19
(a) Representations and Warranties True at the Closing Date.........19
(b) Seller's Performance............................................19
(c) Instruments of Conveyance and Transfer..........................19
(d) Approvals and Consents..........................................19
(e) Litigation......................................................20
(f) No Material Adverse Change......................................20
(g) No Change in Law................................................20
(h) Seller's Failure to Meet Certain Conditions.....................20
(i) Financing Contingency...........................................20
(j) County of Xxxxxx Lease Assignment...............................20
Section 8. CONDITIONS TO OBLIGATIONS OF SELLER...............................20
(a) Representations and Warranties True at the Closing Date.........21
(b) Buyer's Performance.............................................21
(c) Approvals and Consents..........................................21
(d) Litigation......................................................21
(e) No Change in Law................................................21
Section 9. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.............21
(a) Survival of Representations, Warranties, Etc....................21
(b) Seller's Agreement to Indemnify.................................22
(c) Buyer's Agreement to Indemnify..................................23
(d) Third Party Claims..............................................23
(e) Remedies Exclusive..............................................24
(f) Escrow Agreement................................................24
Section 10. BULK SALES ACTS..................................................24
Section 11. DISCLAIMER.......................................................25
Section 12. EXPENSES.........................................................25
Section 13. WAIVER...........................................................25
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Section 14. NOTICES, ETC.....................................................25
Section 15. ENTIRE AGREEMENT: AMENDMENT......................................26
Section 16. PRESS RELEASES...................................................26
Section 17. GENERAL..........................................................26
Section 18. SEVERABILITY.....................................................27
Section 19. TERMINATION AND ABANDONMENT......................................27
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated May 15, 2009 (the "Agreement"), is
among RONSON CORPORATION, a New Jersey corporation ("Parent"), and RONSON
AVIATION, INC., a New Jersey corporation ("Aviation") (Parent and Aviation are
herein referred to together as "Seller"), and Hawthorne TTN Holdings, LLC, a
Delaware limited liability company ("Buyer"), and includes by reference a
collection of Exhibits and Schedules ("Disclosure Memorandum,").
WHEREAS, Parent owns 100% of the outstanding capital stock of Aviation;
and
WHEREAS, Seller desires to sell and Buyer desires to purchase certain
of the assets and the business, as a going concern, of Aviation utilized in its
Fixed Base Operations, Building and Ramp, Fuel Services, Aircraft Maintenance
and Avionics operations at Trenton-Xxxxxx Airport in Trenton, New Jersey
including, but not limited to Aviation's fixed base operation lease between
Aviation (as successor to Ronson Helicopters, Inc.) and the County of Xxxxxx
dated May 14, 1975, as amended from time to time ("Master Lease"), subleases and
fuel operations, for the consideration provided herein (including the assumption
by Buyer of certain of Aviation's liabilities and obligations).
NOW, THEREFORE, in consideration of the mutual benefits to be derived
from this Agreement and the representations, warranties, covenants and
agreements hereinafter contained, the parties hereby represent, warrant,
covenant and agree as follows:
Section 1. SALE AND PURCHASE OF ASSETS; ASSUMPTION OF LIABILITIES.
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(a) Sale and Transfer of Assets. In reliance on the
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representations, warranties, covenants and agreements contained herein and
subject to the terms and conditions hereof, on the Closing Date (as hereinafter
defined), Seller shall sell, convey, transfer and deliver to Buyer, and Buyer
shall purchase from Seller, the assets, free and clear of any encumbrances
(except as otherwise hereinafter expressly excluded), and the business, as a
going concern, of Aviation including without limitation, the following
(collectively, the "Assets"), free and clear of all liens, unless specifically
listed in paragraph 1 (c):
(i) all assets of Aviation as reflected in Disclosure
Memorandum, Exhibit A, including, but not limited to customer contracts and
contract rights of all kinds (including, but not limited to rental contracts,
hanger leases, customer service contracts and tie down agreements, but excluding
the fuel contract with BP) (collectively "Aviation Contracts"), inventory,
tools, equipment, vehicles, furniture, fixtures, the name "Ronson Aviation", FAA
certificates, to the extent assumable, and goodwill);
(ii) all rights of Aviation under the Master Lease
including leasehold improvements and leases, contracts, plans and commitments
relating to the Assets listed on Disclosure Memorandum, Exhibit A.;
(iii) all of Aviation's goodwill relating to the
business of Aviation; and
(iv) all right, title and interest of Aviation to
claims and causes of action relating to the Assets arising on or after the
Closing Date.
With respect to any losses suffered by Buyer with
respect to the Assets attributable to any event occurring prior to the Closing,
whether or not otherwise indemnified against hereunder, Seller shall assign any
rights which Seller might have to pursue or, if such an assignment is or would
be invalid or unenforceable as against third parties, shall pursue and assert
diligently, in good faith and , any and all remedies Seller may have, and Seller
shall pay over to Buyer any recovery so obtained.
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(b) Excluded Assets. Notwithstanding the foregoing provisions
---------------
of Section 1(a) above, it is expressly understood and agreed that there shall be
excluded from the Assets being conveyed hereunder the following (the "Excluded
Assets"):
(i) all receivables due to Aviation for work
performed and work in progress as of the Closing Date for which invoices have
been issued as of the Closing Date;
(ii) all accounts receivable for goods delivered or
services provided prior to the Closing Date for which invoices were issued to
customers on or prior to the Closing Date;
(iii) all of Seller's right, title and interest in
prepaid Income Taxes and any claims for refunds with respect to Income Taxes
paid by Seller for any period ending on or before the Closing Date;
(iv) all of Seller's right, title and interest in
prepaid insurance or any experience credits, premium deposits or other refunds
under insurance policies or other prepaid expenses including, without
limitation, prepaid rent and prepaid equipment lease payments, to the extent the
same are refundable;
(v) all right, title and interest of Aviation to
claims and causes of action relating to the assets, business or operations of
Aviation arising prior to the Closing Date;
(vi) cash on hand; and
(vii) BP Fuel Contract.
(c) Assumption of Liabilities and Obligations. On the Closing
-----------------------------------------
Date, subject to the provisions of Section 1(d) below, Buyer shall assume and
agree to pay, perform and discharge the following liabilities and obligations of
Seller to the extent that they relate to the Assets or the business of Aviation
(collectively, the "Assumed Liabilities"):
(i) all liabilities and obligations relating to the
Assets arising on or after the Closing Date.
(d) Excluded Liabilities. Buyer is not assuming any other of
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the liabilities or obligations of the Seller, known or unknown, which are not
expressly assumed by Buyer pursuant to Section 1(c) above, or which were
incurred prior to the closing date or are shown on the Balance Sheet (as
hereafter defined) of Aviation ("Excluded Liabilities").
Section 2. PURCHASE PRICE. PAYMENT.
-----------------------
(a) Purchase Price. The purchase price (the "Purchase Price")
--------------
to be paid by Buyer to Aviation on the Closing Date for the Assets shall be Nine
Million Five Hundred Thousand and No/100 Dollars ($9,500,000.00)
In accordance with this Section 2(a), at the Closing, the Purchase Price shall
be delivered by Buyer to Seller as follows: (a) Nine Million and No/100 Dollars
($9,000,000.00) by wire transfer; and (b) Five Hundred Thousand and No/100
Dollars ($500,000.00) paid to the escrow agent pursuant to the Escrow Agreement.
(b) Allocation of Purchase Price. The Buyer and Seller agree
----------------------------
that the Purchase Price, including the amount of liabilities assumed by the
Buyer under Section 1(c) hereof and treated as consideration for the Assets
under Section 1060-1T of the Treasury Regulations shall be allocated in
accordance with the rules set forth in Section 1060 of the Internal Revenue Code
of 1986, as amended (the "Code") and the Treasury Regulations promulgated
thereunder. For all purposes hereunder, the parties have agreed to allocate the
Purchase Price as follows:
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(i) Leasehold $_____________
(ii) Main Hangar/Office Complex $_____________
(iii) New Hangar/Office Complex $_____________
(iii) T-Hanger 1 $_____________
(iv) T-Hanger 2 $_____________
(v) Fuel Farm $_____________
(vi) Parts Inventory and
Other Inventory $_____________
(vii) Equipment $_____________
(viii) Fuel $_____________
(xi) Goodwill $_____________
TOTAL
==============
In the event of any adjustment in the Purchase Price under Section 2(b) hereof,
such increase or decrease as the case may be, shall be allocated in proportion
to the allocation of the Purchase Price as set forth above. Buyer and Seller
shall each prepare Form 8594 or such other forms and returns as may be required
in a manner consistent with the allocation made hereunder and any adjustment
thereto and shall timely file Form 8594 or other required forms or returns with
the Internal Revenue Service. Neither Seller nor Buyer shall take any position
on any Tax form or return or in any tax audit or proceeding that is inconsistent
with such allocation. Buyer and Seller will notify each other as soon as
reasonably practical of any audit adjustment or proposed audit adjustment by any
taxing authority that affects the allocations made hereunder.
Section 3. THE CLOSING.
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(a) Time and Place of Closing. The closing of the transaction
-------------------------
contemplated by this Agreement (the "Closing") shall take place at Ronson
Aviation, or such other location, on a date (the "Closing Date") on or about
July 30, 2009.
(b) Aviation Employees as of the Closing Date. As of said
-----------------------------------------
Closing Date, Aviation shall have terminated all its employees and have paid all
accrued salary, vacation pay, sick pay and all other employee benefits. Buyer
will advise Seller no later than ten (10) days prior to the Closing Date of any
Aviation employees which Buyer will not be hiring for its operations and Buyer
will make offers of employment to all other employees of Aviation effective as
of the Closing Date. As part of such offer, Buyer will agree to grandfather
employees who are offered employment under Buyer's employee benefit plans so
that such employees will receive credit for the time employed by Aviation.
(c) Due Diligence As Condition Precedent to the Closing. Buyer
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and its representatives shall have completed their financial, supplier,
customer, legal and environmental due diligence review of Seller and their
review of the transactions contemplated hereby within 30 days of the expiration
of the standstill period per the terms of the Stipulation of Settlement
Agreement dated October 12, 2007 by and among Ronson Corporation and certain of
its shareholders, as Disclosure Memorandum, Exhibit B, and Buyer in its sole
discretion shall be satisfied with the results of such due diligence review
otherwise Buyer may terminate this Agreement by providing written notice to
Seller at which time this Agreement shall be deemed null and void.
(d) Shareholder Approval. Consummation of the transaction
--------------------
contemplated by this Agreement requires the approval of the shareholders of
Parent. Such approval is a condition precedent to Closing for both parties.
Prior to the Closing Date, Seller will prepare proxy solicitation materials and
diligently make all necessary SEC filings in cooperation with Buyer. (except
that Seller, at its option, shall not be obligated to make such filings prior to
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expiration or waiver of Buyer's financing contingency under Section 7(l)
hereof). Buyer agrees to furnish promptly to Parent all information concerning
Buyer and its affiliates and their respective businesses and affairs which may
be required by applicable Federal securities laws or the SEC for inclusion in
any proxy statement or other solicitation materials relating to the solicitation
of shareholder approval for the transaction contemplated by this Agreement, in
the form required or appropriate for inclusion, and, to the extent reasonably
requested to do so, to cooperate with and assist Parent in the preparation of
all such materials. All information furnished by Buyer concerning Buyer, its
affiliate and their business and affairs, including financial information, shall
(i) be in writing and itemized on an Information Schedule maintained by Buyer
and acknowledged, from time to time, in writing by Seller, (ii) be true and
correct in all material respects, (iii) comply with legal and regulatory
requirements and (iv) not contain any misstatements of material information or
omit any material information regarding Buyer and its business. If, prior to the
shareholders' meeting at which shareholder approval will be solicited, any event
occurs with respect to Buyer or any change occurs with respect to information
supplied by Buyer for inclusion in the proxy statement, Buyer shall promptly
notify Parent of such event and shall cooperate with Parent in the prompt filing
with the SEC of any necessary amendment or supplement to the proxy statement.
Section 4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
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represents and warrants to Buyer that, except as set forth in Disclosure
Memorandum, Schedule A:
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(a) Organization and Good Standing.
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(i) Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of New Jersey, has all
requisite corporate power to carry on its business as it is now being conducted
and is in good standing and duly qualified to do business in each jurisdiction
where the failure to be so qualified would have a material adverse effect on the
business of Parent and its subsidiaries, taken as a whole. Parent owns
beneficially and of record all of the outstanding capital stock of Aviation.
(ii) Aviation is a corporation duly organized,
validly existing and in good standing under the laws of the State of New Jersey,
has all requisite corporate power to carry on its business as it is now being
conducted and is in good standing and duly qualified to do business in each
jurisdiction where the failure to be so qualified would have a material adverse
effect on the business of Aviation. Aviation has no subsidiaries.
(b) Authority Execution and Delivery. Subject to Section 3(d),
--------------------------------
each of Parent and Aviation has full corporate power and authority to enter into
this Agreement and to sell the Assets in accordance with the terms hereof so as
to vest in Buyer on the Closing Date good and marketable title to the Assets,
free and clear of all claims, liens, pledges, options, charges, security
interests or encumbrances of any nature whatsoever (collectively,
"Encumbrances"). The execution, delivery and performance of this Agreement by
Parent has been duly and effectively authorized by the Board of Directors of
Parent. The execution, delivery and performance of this Agreement by Aviation
has been duly and effectively authorized by the Board of Directors of Aviation
and Parent. No other corporate proceedings on the part of Parent or Aviation are
necessary, except as described in Section 3(d), to authorize this Agreement and
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by each of Parent and Aviation and constitutes the legal, valid and
binding obligation of each of Parent and Aviation, enforceable against each of
Parent and Aviation in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors rights in general, moratorium laws or by general
principles of equity. To the extent there are encumbrances on the Assets, said
encumbrances shall be paid at closing with the proceeds of the closing.
(c) Consents, No Conflicts, Etc. Except as contemplated by
---------------------------
this Agreement, neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby nor compliance by Parent
and Aviation with any of the provisions hereof will (with or without the giving
of notice or the passage of time) (i) violate, conflict with, result in a breach
of, constitute a default under, or result in the creation of any Encumbrances
upon the Assets pursuant to, any of the terms, conditions or provisions of (A)
the respective certificate of incorporation or by-laws of Parent and Aviation,
or (B) any material note, bond, mortgage, indenture, deed of trust, lease,
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license, agreement, or any other material instrument or obligation to which
either Parent or Aviation is a party, (ii) violate any material order, writ,
injunction, decree, statute, rule or regulation applicable to Parent or Aviation
or any of their respective assets or properties or (iii) require the consent,
approval, permission or other authorization of any court, arbitrator or
governmental, administrative or self-regulatory authority or any other person or
entity, except for violations, conflicts or defaults which would not, or
consents, approvals, permissions or authorizations, the failure of which to
obtain would not, individually or in the aggregate, have a material adverse
effect on the Assets, the business of Aviation or the ability of Parent and
Aviation to consummate the transactions contemplated hereby in accordance with
the terms hereof
(d) No Other Agreements to Sell the Assets. Except as
--------------------------------------
otherwise provided in the Stipulation of Settlement dated October 12, 2007 among
Ronson Corporation and certain of its shareholders (Disclosure Memorandum,
Exhibit B), Seller has no legal obligation, absolute or contingent, to any other
person or firm to sell any of the Assets (other than in the ordinary course of
business).
(e) Copies of Documents. Seller has previously made available
-------------------
to Buyer true and complete copies, or forms, of (i) all material agreements,
contracts, leases, insurance policies, undertakings, commitments and
arrangements relating to the Assets and (ii) all material governmental or
regulatory licenses, permits, franchises, approvals and certificates
(collectively, "Permits") required to conduct the business of Aviation.
(f) Properties.
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(i) Aviation has good and marketable title, free and
clear of liens or encumbrances except as described on the 2008 Balance Sheet to
all of its owned properties and assets, tangible and intangible, included in the
Assets.
(ii) Each lease, including the Master Lease, pursuant
to which Aviation leases real or personal property and each other material
contract or commitment included in the Assets is valid and enforceable, in full
force and effect, in accordance with its terms and Aviation is not in default
under any provision of any such lease, contract or commitment. No party from
whom Aviation leases real or personal property material to the business of
Aviation and no party which is a party to any lease, contracts or commitment
material to the business of Aviation is in default under any provision of any
such lease, contract or commitment whereby the benefits of such lease, contract
or commitment would not be realized in the future.
(iii) Aviation has not received notice of (1) any
violation of any applicable zoning regulation, ordinance or other law, order,
regulation or requirement relating to the operations of its leased real
properties included in the Assets that would materially impair the business or
operations of Aviation or (2) any pending or threatened condemnation proceedings
relating to any of its leased properties included in the Assets.
(iv) As of the date hereof, to the best of Seller's
knowledge, the improvements at Aviation's facilities and all machinery and
equipment included in the Assets are in good operating condition for use in the
ordinary course of business, normal wear and tear excepted, except for such
defects as would not substantially interfere with the continued use thereof in
the conduct of normal operations and except for equipment undergoing normal
operational maintenance. Notwithstanding the foregoing, Seller makes no
representations or warranties with respect to the future performance of the
improvements, machinery and equipment included in the Assets.
(g) Litigation. Other than as set forth in Disclosure
----------
Memorandum, Schedule A, there is no litigation, proceeding, arbitral action or
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government investigation pending or threatened against Aviation with respect to
the Assets or the business of Aviation which would have a material adverse
effect on the Assets or the business of Aviation or interfere with the ability
of Seller to consummate the transactions contemplated by this Agreement in
accordance with the terms hereof. To Seller's knowledge, there are no decrees,
injunctions or orders of any court or governmental department or agency
outstanding against Aviation affecting the Assets or the business of Aviation.
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(h) Compliance with Laws; Permits. Seller, has complied in all
-----------------------------
material respects with all applicable Permits, statutes, regulations, orders,
ordinances, rules, licenses, codes, plans, decrees, judgments, injunctions,
notices, or demand letters (including, without limitation, applicable zoning,
environmental, occupational safety and health laws and regulations) of all
governments and other governmental bodies and authorities, and agencies of any
of the foregoing, to which it is subject in connection with the conduct of the
business of Aviation, and any undertakings of Aviation to any of the foregoing,
except for such failures to comply that would not, individually or in the
aggregate, have a material adverse effect on the Assets or the business of
Aviation. Aviation has not received any written notice of such a failure to
comply with any of such Permits, statutes, regulations, orders, ordinances,
rules, licenses, codes, plans, decrees, judgments, injunctions, notices, or
demand letters or undertakings, and Aviation knows of no presently existing
circumstances or changes in Permit conditions which would, individually or in
the aggregate, have a material adverse effect on the Assets or the business of
Aviation. To Aviation's knowledge, there are no products now being manufactured,
sold or distributed by Aviation which at the date hereof would require any
approval of any governmental body, whether federal, state, local or foreign, for
which such approval has not been obtained. No proceedings for the suspension or
cancellation of any Permit maintained by Aviation with respect to the business
of Aviation is pending or, to Aviation's knowledge, threatened.
(i) Insurance. The policies of insurance maintained by Seller
---------
with respect to the Assets or the business of Aviation insure the Assets and the
business of Aviation against such losses and risks as are adequate in accordance
with customary industry practice to protect the Assets and the business of
Aviation in the context of Parent's business. Seller has not received notice
from any insurer or agent of such insurer that substantial capital improvements
or other expenditures will have to be made in order to continue such insurance
and, so far as known to Seller, no such improvements or expenditures are
required.
(j) No Brokers. Seller has not entered into and will not enter
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into any agreement, arrangement or understanding with any person or firm which
will result in the obligation of Buyer to pay any finder's fee, brokerage
commission or similar payment in connection with the transactions contemplated
hereby.
(k) Transactions with Certain Persons. No shareholder,
---------------------------------
officer, director or employee of Seller or any of their affiliates or member of
his or her immediate family is presently a party to any material transaction
with Aviation which is other than an arm's-length transaction.
(l) Consequences of Sale and Purchase. Seller is not aware
---------------------------------
that any person or entity which now has material business dealings with Aviation
intends to cease to do so as a result of the consummation of the transactions
contemplated by this Agreement.
(m) Environmental Matters. Except as disclosed in Disclosure
---------------------
Memorandum, Schedule A:
(i) Aviation and this transaction are not subject to
any reporting requirement in the Industrial Site Recovery Act, N.J.S.A.
13:1K-6 et seq.
(ii) NJDEP issued a letter to Aviation dated Sept.
12, 2002 requesting additional groundwater monitoring data respecting
well MW-203 at the Airport, and a Remedial Action Workplan, stating
that failure to comply may result in enforcement actions and statutory
penalties. NJDEP considers this letter to still be in effect. According
to Aviation's environmental consultant, data demonstrates that Aviation
is not the source of the contamination at MW-203. NJDEP denied the
request for a NFA letter on March 26, 2003. According to NJDEP,
"[b]ased on the subsurface investigation completed to date [Mar. 26,
2003] the Department cannot make a determination as to the source of
the free product jet fuel found in monitoring well MW-203." Because
Aviation declined to further investigate or remediate the free product
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conditions associated with MW-203, NJDEP issued a letter dated June 19,
2003 to Xxxxxx County, as the owner of the Airport, to comply with the
investigation and remedial action requirements of the Spill Act for
this area of concern. In connection with this, Aviation filed Ronson x.
Xxxxxx County, Docket No. MER-L-1219-99, as a cost recovery action and
an action on a leasehold. This matter is settled in part.
Correspondence related to the open issue of contamination of MW-203 is
available for review at Aviation.
(iii) Aviation operated oil/water separators, which
had storage tanks attached to them. The oil/water separator tanks were
removed and a No Further Action letter is expected from NJDEP shortly.
(iv) Except as described in 4(m)(ii) above, to the
best of Seller's knowledge, there are no uncontrolled Hazardous
Substances (defined below) and no uncontrolled Hazardous Wastes
(defined below) present on the Premises including, asbestos, flammable
substances, explosives, radioactive materials, polychlorinated
biphenyls ("PCBs"), urea formaldehyde foam insulation, corrosive,
irritant, biologically infectious materials, garbage, refuse, sludge,
or toxic chemical waste materials (other than ordinary course garbage
and refuse of tenants and ordinary course cleaning materials). Except
as described in 4(m)(ii) above, Seller is not currently identified in
any litigation, administrative proceeding or investigation as a
responsible party or potentially responsible party for any liability
for clean-up costs, natural resource damages or other damages or
liability for prior disposal or release of Hazardous Substances,
Hazardous Wastes or other environmental pollutants or contaminants at
the Premises, and no lien or super- lien has been recorded, filed or
otherwise asserted against the Premises. For purposes of this
Agreement, "Hazardous Substances" means those elements and compounds
which are designated as such in Section 101(14) of the Comprehensive
Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Section
9601 (14), as amended, all petroleum products, and any other hazardous
substances as that term may be further defined in any and all
applicable federal, state and local laws; and "Hazardous Wastes" means
any hazardous waste as defined in applicable federal or state laws.
(v) Except as described in Section 4(m)(i) through
(iv) above and on Disclosure Memorandum, Schedule A, there has been no
significant release of hazardous substances, including petroleum
products, by Seller which has not been reported to the NJDEP, and to
Seller's knowledge , there is no threat of release of any hazardous
substances, at or from any facility or at any other location where any
hazardous substances were generated, manufactured, refined,
transferred, produced, imported, used, or processed from or by any
facility or from any other property or asset (whether real, personal or
mixed) in which Seller has or had an interest. However, except as set
forth herein, Seller makes no representations about past releases or
discharges of hazardous substances including petroleum products that
may have occurred in the ordinary course of fueling, transport and/or
storage operations at any property or location or by any facility owned
or leased by Seller.
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(n) Tax Matters.
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(i) None of the Assets directly or indirectly secures
any debt the interest on which is tax-exempt under section 103(a) of the Code.
(ii) None of the Assets is "tax-exempt use property"
within the meaning of section 168(h) of the Code
(iii) Seller is not a person other than a United
States person within the meaning of the Code.
(iv) Aviation has duly filed (or joined in the filing
of) on or before their due dates (including any extensions) all Tax reports and
returns it was required to file (or join in the filing of). All such returns and
reports were accurate and complete in all material respects when filed and were
prepared in conformity with all applicable laws and regulations. All Taxes shown
to be due on such Tax returns and reports or otherwise assessed or due and
payable have been paid in full.
(v) The representations and warranties set forth in
subclause (iv) above are only applicable to the extent that the Assets can be
made subject to Tax liens or Buyer can be made liable for Taxes relating to the
matters constituting breaches of such representations and warranties.
(o) Disclosure. No representation or warranty made by Seller
----------
in this Agreement or as provided herein contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein not false or misleading.
(p) Assets. All the Assets being transferred to Buyer pursuant
------
to this Agreement are owned or leased by Aviation and comprise all those
properties, assets and rights necessary to operate the business of Aviation in
the ordinary course.
(q) Government Contracts. Seller has, with respect to
--------------------
Aviation, complied in all material respects with all laws, ordinances, rules and
regulations relating to government contracts.
(r) Utilities. All public utilities required for the operation
---------
of the Property, including without limitation, water, sewer, gas and electricity
are installed and operating, and all installation charges and connection fees
therefore have been paid in full.
(s) Financial Statements. Seller has delivered to Buyer: (a)
--------------------
an audited balance sheet of Seller as at December 31, 2008, (the "2008 Balance
Sheet") and the related audited statements of income, changes in Equityholders'
equity, and cash flows for the twelve (12) months then ended (the "2008
Financial Statement") including in each case the notes thereto certified by the
Seller's chief financial officer and the unaudited balance sheet as at March 31,
2009 (the "Interim Balance Sheet") and the related unaudited statements of
income, changes in Equityholders' equity, and cash flows for the three (3)
months then ended (the "Interim Financial Statement"), including in each case
the notes thereto certified by Seller's chief financial officer. Collectively,
the 2008 Financial Statement and the Interim Financial Statement are (the
"Financial Statements"). Such Financial Statements fairly present the financial
condition and the results of operations, changes in Equityholders' equity and
cash flows of Seller as at the respective dates of and for the periods referred
to in such financial statements, all in accordance with GAAP. The Financial
Statements referred to in this Section 4(r) and delivered pursuant to Section
6(j) reflect and will reflect the consistent application of such accounting
principles throughout the periods involved, except as disclosed in the notes to
such Financial Statements. The Financial Statements have been and will be
prepared from and are in accordance with the accounting records of Seller.
Seller has also delivered to Buyer copies of all letters from Seller's auditors
to Seller's members or the audit committee thereof during the thirty-six (36)
months preceding the execution of this Agreement, together with copies of all
responses thereto.
8
(t) No Undisclosed Liabilities. Except as set forth in
--------------------------
Disclosure Memorandum, Schedule A, Seller has no Liability except for
Liabilities reflected or reserved against in the 2008 Balance Sheet or the
Interim Balance Sheet and current liabilities determined in accordance with GAAP
incurred in the ordinary course of business of Seller since the date of the
Interim Balance Sheet.
(u) No Material Adverse Change. Since the date of the 2008
--------------------------
Balance Sheet, there has not been any material adverse change in the business,
operations, prospects, assets, results of operations or condition (financial or
other) of Seller, and no event has occurred or circumstance exists that may
result in such a material adverse change.
(v) Employee Benefits.
-----------------
(i) Seller has maintained workers' compensation
coverage as required by applicable state law through purchase of insurance and
not by self-insurance or otherwise except as disclosed to Buyer on Disclosure
Memorandum, Schedule A.
(ii) Except as required by law, the consummation of
the contemplated transactions will not accelerate the time of vesting or the
time of payment, or increase the amount, of compensation due to any director,
employee, officer, former employee or former officer of Seller. There are no
contracts or arrangements providing for payments that could subject any person
to liability for tax under Section 4999 of the Code.
(iii) Except for the continuation coverage
requirements of COBRA, Seller has no obligations or potential liability for
benefits to employees, former employees or their respective dependents following
termination of employment or retirement under any of the Employee Plans that are
Employee Welfare Benefit Plans.
(iv) All contributions required by the terms of any
multiemployer plan and any collective bargaining agreement have been made when
due; and
(v) Seller would not be subject to any withdrawal
liability under Part 1 of Subtitle E of Title IV of ERISA if, as of the date
hereof, Seller were to engage in a "complete withdrawal" (as defined in ERISA
Section 4203) or a "partial withdrawal" (as defined in ERISA Section 4205) from
such Multiemployer Plan.
(w) Contracts; No Defaults
----------------------
(i) Disclosure Memorandum, Schedule A contains an
accurate and complete list, and Seller has delivered to Buyer accurate and
complete copies, of each Aviation Contract:
Disclosure Memorandum, Schedule A sets forth
reasonably complete details concerning such Aviation Contracts, including the
parties to the Aviation Contracts, the amount of the remaining commitment of
Seller under the Aviation Contracts and the location of Seller's office where
details relating to the Aviation Contracts are located.
(ii) Except as set forth in Disclosure Memorandum,
Schedule A:
(1) each Aviation Contract identified or
required to be identified in Disclosure Memorandum, Schedule A and which is to
be assigned to or assumed by Buyer under this Agreement is in full force and
effect and is valid and enforceable in accordance with its terms;
9
(2) except as to the Master Lease which requires
the consent of the County of Xxxxxx, each Aviation Contract identified or
required to be identified in Disclosure Memorandum, Schedule A and which is
being assigned to or assumed by Buyer is assignable by Seller to Buyer without
the consent of any other Person; and
(iii) Except as set forth in Disclosure Memorandum,
Schedule A:
(1) Seller is, and at all times since December
31, 2008, has been, in compliance with all applicable terms and requirements of
each Aviation Contract which is being assumed by Buyer;
(2) each other person that has or had any
obligation or liability under any Aviation Contract which is being assigned to
Buyer is, and at all times since December 31, 2008, has been, in full compliance
with all applicable terms and requirements of such Aviation Contract;
(3) no event has occurred or circumstance exists
that (with or without notice or lapse of time) may contravene, conflict with or
result in a breach of, or give Seller or other person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or payment under, or to cancel, terminate or modify, any
Aviation Contract that is being assigned to or assumed by Buyer;
(4) no event has occurred or circumstance exists
under or by virtue of any Aviation Contract that (with or without notice or
lapse of time) would cause the creation of any encumbrance affecting any of the
Assets; and
(5) Seller has not given to or received from any
other person, at any time since December 31, 2007, any notice or other
communication (whether oral or written) regarding any actual, alleged, possible
or potential violation or breach of, or default under, any Aviation Contract
which is being assigned to or assumed by Buyer.
(iv) There are no renegotiations of, attempts to
renegotiate or outstanding rights to renegotiate any material amounts paid or
payable to Seller under current or completed Aviation Contracts with any Person
having the contractual or statutory right to demand or require such
renegotiation and no such Person has made written demand for such renegotiation.
(x) Sufficiency of Assets. Except as set forth in Disclosure
---------------------
Memorandum, Schedule A, the Assets (a) constitute all of the assets, tangible
and intangible, of any nature whatsoever, necessary to operate Sellers' business
in the manner presently operated by Sellers and (b) include all of the operating
assets of Sellers.
(y) Solvency
--------
(i) Seller is not now insolvent and will not be
rendered insolvent by any of the Contemplated Transactions. As used in this
section, "insolvent" means that the sum of the debts and other probable
liabilities of Seller exceed the present fair saleable value of Seller's assets.
(ii) Immediately after giving effect to the
consummation of the Contemplated Transactions: (i) Seller will be able to pay
its liabilities as they become due in the usual course of its business; (ii)
Seller will not have unreasonably small capital with which to conduct its
present or proposed business; (iii) Seller will have assets (calculated at fair
market value) that exceed its Liabilities; and (iv) taking into account all
pending and threatened litigation, final judgments against Seller in actions for
money damages are not reasonably anticipated to be rendered at a time when, or
10
in amounts such that, Seller will be unable to satisfy any such judgments
promptly in accordance with their terms (taking into account the maximum
probable amount of such judgments in any such actions and the earliest
reasonable time at which such judgments might be rendered) as well as all other
obligations of Seller. The cash available to Seller, after taking into account
all other anticipated uses of the cash, will be sufficient to pay all such debts
and judgments promptly in accordance with their terms.
Section 5. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
---------------------------------------
represents and warrants to Seller that, except as set forth in Disclosure
Memorandum, Schedule B:
----------
(a) Organization and Good Standing. Buyer is a limited
------------------------------
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware, has all requisite power and authority to
carry on its business as it is now being conducted and is in good standing and
duly qualified to do business in each jurisdiction where the failure to be so
qualified would have a material adverse effect on Buyer and its subsidiaries,
taken as a whole.
(b) Authority; Execution and Delivery. Buyer has full power
---------------------------------
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. The execution, delivery
and performance of this Agreement by Buyer have been duly and effectively
authorized by Buyer. No action by the members of the LLC on the part of Buyer
are necessary to authorize this Agreement and the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Buyer and
constitutes the legal, valid and binding obligation of Buyer enforceable against
Buyer in accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, or other similar laws affecting the enforcement of
creditors' rights in general, moratorium laws or by general principles of equity
(c) Consents, No Conflicts, Etc. Neither the execution and
---------------------------
delivery of this Agreement, the consummation by Buyer of the transactions
contemplated hereby nor compliance by Buyer with any of the provisions hereof
will (with or without the giving of notice or the passage of time) (i) violate,
conflict with, result in a breach of, constitute a default under, or result in
the creation of any Encumbrances upon the assets of Buyer or any of its
subsidiaries pursuant to, any of the terms, conditions or provisions of (1) the
certificate of formation of Buyer or (2) any material note, bond, mortgage,
indenture, deed of trust, lease, license, agreement or any other material
instrument or obligation to which Buyer or any of its subsidiaries is a party,
(ii) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Buyer or any of its subsidiaries or any of their respective assets
or properties, or (iii) require the consent, approval, permission or other
authorization of any court, arbitrator or governmental, administrative, or
self-regulatory authority or any other person or entity; except for violations,
conflicts or defaults which would not, or consents, approvals, permissions or
authorizations the failure of which to obtain would not, individually or in the
aggregate, have a material adverse effect on Buyer and its subsidiaries, taken
as a whole, or on the ability of Buyer to consummate the transactions
contemplated hereby in accordance with the terms hereof
(d) No Brokers. Buyer has not entered into and will not enter
----------
into any agreement, arrangement or understanding with any person or firm which
will result in the obligation of Seller to pay any finder's fee, brokerage
commission or similar payment in connection with the transactions contemplated
hereby.
(e) Disclosure. No representation or warranty made by Buyer in
----------
this Agreement or as provided herein contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained herein not false or misleading.
Section 6. CERTAIN COVENANTS AND AGREEMENTS.
--------------------------------
(a) Nondisclosure. Seller shall not, at any time after the
-------------
Closing, divulge, furnish to or make accessible to anyone other than Buyer any
knowledge or information with respect to processes, inventions, discoveries,
improvements, formulae, plans, material, devices or ideas or know-how, whether
patentable or not, in
11
each case that are proprietary and confidential to Aviation or with respect to
any confidential and proprietary aspects of Aviation's business (including
without limitation, customer lists, supplier lists and pricing arrangements with
customers or suppliers) ("confidential information"); provided, that nothing
--------
herein shall prohibit Seller from complying with any order or decree of any
court of competent jurisdiction or governmental authority, but Seller shall, to
the extent reasonably practicable, give Buyer timely notice of the receipt of
any such order or decree.
Any information, which (i) at or prior to the time of disclosure by
Seller was generally available to the public through no breach of this covenant,
(ii) was available to the public on a nonconfidential basis prior to its
disclosure by Seller or (iii) was made available to the public from a third
party provided that such third party did not obtain or disseminate such
information in breach of any legal obligation to Seller, shall not be deemed
confidential information for purposes hereof, and the undertakings in this
covenant with respect to confidential information shall not apply thereto.
(b) Conduct of Business. From the date hereof through the
-------------------
Closing Date, (i) Seller shall not take any action that would result in or by
unreasonable inaction permit to occur any material change in the business
conducted by Aviation, and (ii) Seller shall operate the business of Aviation in
the ordinary course, and (iii) comply with the terms and conditions of the
Master Lease.
(c) Changes in Representations and Warranties. Between the
-----------------------------------------
date of this Agreement and the Closing Date, Seller shall use its best efforts
to not enter into any transaction, take any action, or by unreasonable inaction
permit an event to occur, which would result in any of its representations and
warranties herein contained not being true and correct in any material respect
at and as of the Closing Date. Seller shall promptly give written notice to
Buyer and Buyer shall promptly give written notice to Seller upon becoming aware
of (i) any fact which, if known on the date hereof, would have been required to
be set forth or disclosed pursuant to this Agreement and (ii) any impending or
threatened breach in any material respect of any of the representations and
warranties contained in this Agreement and with respect to the latter shall use
all reasonable efforts to remedy same.
(d) Mutual Cooperation. The parties hereto shall cooperate
------------------
with each other, and shall use all reasonable efforts to cause the fulfillment
of the conditions to the parties' obligations hereunder and to obtain as
promptly as possible all consents, authorizations, orders or approvals from each
and every third party, whether private or governmental, required in connection
with the transactions contemplated by this Agreement.
(e) Access to Business. Seller shall, from the date hereof up
------------------
to and including the Closing Date, permit Buyer and Buyer's attorneys,
accountants, agents and representatives full access to the books, records,
business, assets and employees of Aviation at any reasonable time during normal
business hours and in any reasonable manner, upon reasonable notice and without
undue interruption to the business of Aviation. Buyer shall have the right,
after consultation with and under the supervision of Seller, to meet with
customers and suppliers of Aviation (but only in the presence of Xxxxxxx X.
Xxxxx and such other representative of Seller as Seller shall designate), and
Seller shall give Buyer full cooperation with respect thereto as reasonably
requested.
(f) Further Assurances. From and after the Closing Date, from
------------------
time to time at the others' request and without further consideration, Seller
and Buyer shall execute and deliver such other instruments and take such actions
with respect to the Assets and the other transactions contemplated herein as
Buyer or Seller may reasonably require.
(g) Names.
-----
(i) Seller is the owner of all right, title and
interest in the name "RONSON AVIATION" and all goodwill associated therewith.
Notwithstanding Seller's rights, from and after the Closing, Buyer shall have
the limited right, to the exclusion of Seller, to use the trade name "Ronson
Aviation"; provided, however, that Buyer shall use such names only in connection
-------- -------
with the business conducted by Aviation at the time of the Closing and shall not
engage in any activity which is competitive with, or which may be confused with,
12
Seller, Ronson Consumer Products Corporation, or the name "RONSON". Buyer shall
have no right to the use of any variants or derivations of the names "Ronson
Aviation" or to sell or assign the use of the names to any other person or
entity; provided, however, that Buyer may sell or assign the names "Ronson
-------- -------
Aviation" to a person or entity purchasing Buyer's business and associated
assets so long as the names are only used in connection with the fixed base
operations, building and ramp, fuel services, aircraft maintenance and avionics
operations at Xxxxxxx Xxxxxx County Airport in Trenton, New Jersey, all being
sold to Buyer hereunder and the Buyer is bound by the limitations respecting use
of the name "Ronson Aviation" hereunder.
(ii) In the event of any actual confusion between
Buyer and Seller resulting from Buyer's limited right to use the name "Ronson
Aviation, Inc.", Buyer agrees to take such reasonable steps as may be necessary
to prevent any further confusion, including, for example, indicating in publicly
distributed literature, brochures, advertising and the like, including its
letterhead, that Buyer is not affiliated with Seller.
(iii) Parent and Aviation shall not be restricted in
any manner from using the name "Ronson" in connection with any business.
13
(h) Tax Matters.
-----------
(i) No new elections with respect to Taxes, or any
changes in current elections with respect to Taxes, affecting the Assets shall
be made after the date of this Agreement without the prior written consent of
Buyer.
(ii) Buyer shall be responsible for all sales and use
Taxes payable in connection with the sale, transfer, assignment and delivery of
the Assets pursuant to this Agreement.
(iii) Seller shall be responsible for any and all
transfer, documentary and other similar Taxes and all recording and filing fees
payable in connection with the sale, transfer, assignment and delivery of the
Assets pursuant to this Agreement.
(iv) All real and personal property Taxes, water and
sewer rents and similar charges that are attributable to the Tax period in which
the Closing Date occurs shall be prorated on a per diem basis as of the Closing
Date and shall be settled pursuant to Section 2(d) above;
For purposes of this Agreement:
"Tax" or "Taxes" shall mean taxes of any kind, liens or other
assessments, customs duties, imposts, charges or fees, including, without
limitation, gross receipts, ad valorem, value-added, excise, real or personal
property, asset, sales, use, stamp, stock transfer, license, payroll,
transaction, capital, net worth and franchise taxes, withholding, employment,
social security, workers' compensation, utility, severance, production,
unemployment compensation, occupation, premium, windfall profits, transfer and
gains taxes or other governmental taxes imposed or payable to the United States,
or any state, county, local or foreign government or subdivision or agency
thereof, and in each instance such term shall include any interest, penalties or
additions to tax attributable to such tax. Notwithstanding the above, Tax or
Taxes shall not include income taxes.
(i) Product Liability Insurance. Buyer shall be responsible
---------------------------
for obtaining product liability insurance covering Buyer with respect to
products shipped and services provided on or after the Closing Date.
(j) Interim Financial Statements. Until the Closing Date,
----------------------------
Seller shall deliver to Buyer within fifteen (15) days after the end of each
month a copy of the unaudited balance sheet and the related unaudited statements
of income and cash flows for such month prepared in a manner and containing
information consistent with Seller's current practices and certified by Seller's
chief financial officer as to compliance with Section 4(r).
14
(k) Noncompetition, Nonsolicitation and Nondisparagement
----------------------------------------------------
(i) Noncompetition. For a period of five (5) years
after the Closing Date, Seller, and each of them, shall not, anywhere in the
States of New York, New Jersey, Delaware and Pennsylvania, directly or
indirectly invest in, own, manage, operate, finance, control, advise, render
services to or guarantee the obligations of any entity engaged in or planning to
become engaged in the general aviation services business ("Competing Business"),
provided, however, that each Seller may purchase or otherwise acquire up to (but
not more than) two percent (2%) of any class of the securities of any entity
(but may not otherwise participate in the activities of such entity) if such
securities are listed on any national or regional securities exchange or have
been registered under Section 12(g) of the Exchange Act.
(ii) Nonsolicitation. As it relates to a Competing
Business, each Seller agrees that for a period of five (5) years after the
Closing Date, Seller shall not, directly or indirectly:
(1) solicit the business of any Person who is a
customer of Buyer;
(2) cause, induce or attempt to cause or induce
any customer, supplier, licensee, licensor, franchisee, employee, consultant or
other business relation of Buyer to cease doing business with Buyer, to deal
with any competitor of Buyer or in any way interfere with its relationship with
Buyer;
(3) cause, induce or attempt to cause or induce
any customer, supplier, licensee, licensor, franchisee, employee, consultant or
other business relation of Sellers on the Closing Date or within the year
preceding the Closing Date to cease doing business with Buyer, to deal with any
competitor of Buyer or in any way interfere with its relationship with Buyer; or
(4) hire, retain or attempt to hire or retain
any employee or independent contractor of Buyer or in any way interfere with the
relationship between Buyer and any of its employees or independent contractors.
(iii) Nondisparagement. After the Closing Date,
Sellers will not disparage Buyer or any of Buyer's members, directors, officers,
employees or agents.
(iv) Modification of Covenant. If a final judgment of
a court or tribunal of competent jurisdiction determines that any term or
provision contained in Section 6(k)(i) through 6(k)(iii) is invalid or
unenforceable, then the parties agree that the court or tribunal will have the
power to reduce the scope, duration or geographic area of the term or provision,
to delete specific words or phrases or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable
term or provision. This Section 6(k) will be enforceable as so modified after
the expiration of the time within which Buyer wishes to assume and are
assignable) to Buyer at Closing. The judgment may be appealed. This Section 6(k)
is reasonable and necessary to protect and preserve Buyer's legitimate business
interests and the value of the Assets and to prevent any unfair advantage
conferred on Sellers.
(l) Exclusivity. During the term of this Agreement, Seller
-----------
will not offer to sell or sell any of the Assets or business of Aviation.
However, notwithstanding anything in this Agreement to the contrary, prior to
obtaining the Parent's shareholders approval of the sale, the Parent and the
Seller shall be expressly permitted to (1) comply with the fiduciary duties of
Parent's directors or other applicable law with regard to a third party proposal
or make any disclosure to the Parent's shareholders if, in the good faith
judgment of the Parent (after taking into account the advice of outside
counsel), failure to do so would be inconsistent with the fiduciary duties of
Parent's directors or other applicable law, and (2) engage in discussions or
negotiations with, or provide confidential information in response to, any third
party proposal, if the Board concludes (after consultation with its legal and
15
financial advisers) in good faith by majority vote that there is a reasonable
possibility that such third party proposal could constitute a superior proposal.
Section 7. CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of Buyer
----------------------------------
to consummate the transactions contemplated by this Agreement shall be subject
to the fulfillment or the waiver by Buyer, within the time period specified in
each condition or, absent a specified time period, on or prior to the Closing
Date, of the following conditions:
(a) Representations and Warranties True at the Closing Date.
-------------------------------------------------------
The representations and warranties of Seller contained in this Agreement shall
be deemed to have been made on and as of the Closing Date and shall then be true
and correct in all material respects and on the Closing Date Seller shall have
delivered to Buyer an officer's certificate to such effect.
(b) Seller's Performance. Each of the obligations of Seller to
--------------------
be performed on or before the Closing Date, pursuant to the terms of this
Agreement, shall have been duly performed in all material respects by the
Closing Date, and on the Closing Date Seller shall have delivered to Buyer an
officer's certificate to such effect.
(c) Instruments of Conveyance and Transfer; At the closing,
--------------------------------------
Seller shall have delivered to Buyer such bills of sale, endorsements,
assignments including assignments of leases and contracts and other good and
sufficient instruments of conveyance and transfer, in form and substance
reasonably satisfactory to Buyer and its counsel, as are effective to vest in
Buyer good and marketable title to the Assets. Simultaneously with such
delivery, Seller shall take or cause to be taken all such other steps as are
reasonably necessary to put Buyer in actual possession and operating control of
the Assets.
(d) Approvals and Consents. (i) Seller and Buyer shall work
----------------------
together to obtain and deliver to Buyer all requisite approvals and consents
from governmental or regulatory bodies or agencies, whether federal, state,
local or foreign, as set forth in Disclosure Memorandum, Schedule D, which are
material to the consummation of the transactions contemplated hereby and (ii)
Seller and Buyer shall work together to obtain and deliver to Buyer all
requisite approvals and consents pursuant to leases, contracts, agreements,
permits or licenses, as set forth in Disclosure Memorandum, Schedule C, which
are material to the consummation of the transactions contemplated hereby; and
(iii) The closing of this transaction is subject to the written approval of the
County of Xxxxxx of the assignment to the Buyer of the Master Lease, including
written confirmation from the County that the lease term expires no earlier than
May 31, 2032, within thirty (30) days of the date hereof, which Buyer and Seller
may extend for an additional sixty (60) days consistent with the sixty (60) day
period provided in Section 19 of this Agreement.
(e) Litigation. As of the Closing Date, there shall not be in
----------
effect any litigation, judgment, order, injunction or decree of any court of
competent jurisdiction, the effect of which is to prohibit or restrain the
consummation of the transactions contemplated by this Agreement.
(f) No Material Adverse Change. There shall not have occurred
--------------------------
since the date hereof any material adverse change in the business, assets,
liabilities, earnings or financial condition of Aviation.
(g) No Change in Law. There shall not have been any action, or
----------------
any statute enacted, by any government or agency thereof which would in any
material respect prohibit or render the parties unable to consummate the
transactions contemplated herein or make the transactions contemplated herein
illegal.
(h) Seller's Failure to Meet Certain Conditions. In the event
-------------------------------------------
Seller fails to meet the conditions set forth in subparagraphs (d), (f) and (g)
of this paragraph within the time period set forth in Section 19, Buyer shall be
entitled to cancel this Agreement. In such event neither party shall have any
rights or obligations against the other.
(i) Financing Contingency. Buyer shall have obtained by the
later of (i) the expiration of the Due Diligence Period; or (ii) the written
16
consent from the County of Xxxxxx to the terms of Paragraph 7(j) below, on terms
and conditions satisfactory to it, a commitment for financing in order to
consummate the transactions contemplated hereby, which, if not obtained or
waived within such period, will entitle Buyer to terminate this Agreement by
written notice to Seller within such period failing which this condition shall
be deemed waived by Buyer;
(j) County of Xxxxxx Lease Assignment. Buyer shall have
obtained a written consent from the County of Xxxxxx, if requested by Buyer's
lender, to the collateral assignment of the Master Lease and/or consent to a
leasehold mortgage from the landlord or other party whose consent thereto is
required under the Master Lease in form and substance satisfactory to Buyer and
Buyer's lender.
Section 8. CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of
-----------------------------------
Seller to consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, or the waiver by Seller, on or prior to the Closing
Date, of the following conditions:
(a) Representations and Warranties True at the Closing Date.
-------------------------------------------------------
The representations and warranties of Buyer contained in this Agreement shall be
deemed to have been made at and as of the Closing Date and shall then be true
and correct in all material respects, and on the Closing Date Buyer shall have
delivered to Seller an officer's certificate to such effect.
(b) Buyer's Performance. (i) Each of the obligations of Buyer
-------------------
to be performed on or before the Closing Date, pursuant to the terms of this
Agreement, shall have been duly performed in all material respects by the
Closing Date, and on the Closing Date Buyer shall have delivered to Seller an
officer's certificate to such effect, (ii) Buyer shall have paid the Purchase
Price in accordance with Section 2 above and (iii) Buyer shall have delivered to
Seller an instrument of assumption in form and substance reasonably satisfactory
to Seller and its counsel pursuant to which Buyer shall assume the Assumed
Liabilities.
(c) Approvals and Consents. (i) Buyer shall have obtained and
----------------------
shall have delivered to Seller all requisite approvals and consents from
governmental or regulatory bodies or agencies, whether federal, state, local and
foreign, which are material to the consummation of the transactions contemplated
hereby and (ii) Buyer shall have obtained and shall have delivered to Seller all
requisite approvals and consents pursuant to leases, mortgages, contracts,
agreements, permits or licenses, which are material to the consummation of the
transactions contemplated hereby.
(d) Litigation. As of the Closing Date, there shall not be in
----------
effect any judgment, order, injunction or decree of any court of competent
jurisdiction, the effect of which is to prohibit or restrain the consummation of
the transactions contemplated by this Agreement.
(e) No Change in Law. There shall not have been any action, or
----------------
any statute enacted, by any government or agency thereof which would in any
material respect prohibit or render the parties unable to consummate the
transactions contemplated herein or make the transactions contemplated herein
illegal.
Section 9. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
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All statements contained in Disclosure Memorandum, Schedules or in any'
certificate or instrument of conveyance delivered by or on behalf of the parties
pursuant to this Agreement or in connection with the transactions contemplated
hereby shall be deemed representations and warranties by the parties hereunder.
(a) Survival of Representations, Warranties, Etc. The
--------------------------------------------
representations and warranties of the parties made in or pursuant to this
Agreement shall survive the Closing and shall terminate two years from the
Closing Date and all representations and warranties related to any claim
asserted in writing prior to two years from the Closing Date shall survive until
17
such claim shall be resolved and payment in respect thereof, if any is owing,
shall be made except that:
(i) with respect to a breach of any of the representations and
warranties set forth in Section 4(h) (Compliance with Laws; Permits),
Section 4 (m) (Environmental Matters), and Section 4(n) (Tax Matters),
the applicable survival date shall be the respective Statute of
Limitations under the laws of the State of New Jersey for a claim under
Section 4(h), Section 4(m), and Section 4(n); and
(ii) with respect to a breach of any of the representations
and warranties set forth in Section 4(a) (Organization and Good
Standing), the applicable survival date shall be the respective Statute
of Limitation under the laws of the State of New Jersey for a claim
under Section 4(a).
(b) Seller's Agreement to Indemnify. Seller shall each,
-------------------------------
jointly and severally, indemnify Buyer and each of Buyer's officers, directors,
employees, agents, representatives, affiliates, successors and permitted assigns
(collectively, the "Buyer Parties") and hold each of them harmless from and
-------------
against and pay on behalf of or reimburse such Buyer Parties in respect of any
loss, liability, demand, claim, Action, cause of action, cost, damage, Tax,
penalty, fine or expense, whether or not arising out of third party claims
(including interest, penalties, reasonable attorneys' fees and expenses, court
costs and all reasonable amounts paid in investigation, defense or settlement of
any of the foregoing) (collectively, "Losses") which any such Buyer Party may
------
suffer, sustain or become subject to, as a direct result of:
i. the material breach of any representation or warranty made by
Seller contained in this Agreement, the other transaction
documents, any Exhibit or Schedule of the Disclosure
Memorandum, or any certificate delivered by Seller to Buyer
with respect hereto or thereto in connection with the Closing,
provided, however, Buyer shall not be entitled to
reimbursement for claims by third parties unless the third
party prevails in its claim against Buyer;
ii. the breach of any covenant or agreement made by Seller
contained in this Agreement, the other transaction documents,
any Exhibit or Schedule of the Disclossure Memorandum or any
certificate delivered by Seller or any Equityholder to Buyer
with respect hereto or thereto in connection with the Closing;
iii. any claim for payment of fees and/or expenses as a broker or
finder in connection with the origin, negotiation or execution
of this Agreement or the other transaction documents or the
consummation of the transactions contemplated hereby based
upon any alleged agreement, arrangement or understanding
between the claimant and Seller or any of their respective
agents or representatives;
iv. any Excluded Liability or Excluded Asset (or the assertion of
any Action, demand, proceeding, investigation or claim by any
third party or Governmental Entity against Buyer relating to,
resulting from, in connection with, incidental to or by virtue
of any Excluded Liability or Excluded Assets); or
v. any environmental remediation liabilities, claims or
enforcement actions by the NJDEP against the assets of
Aviation regarding the Environmental Matters described in
Section 4(m) as further detailed in Disclosure Memorandum,
Schedule A.
(c) Buyer's Agreement to Indemnify. Buyer shall fully
------------------------------
indemnify and hold harmless Seller and its officers, directors, employees and
affiliates against and in respect of any and all Losses resulting from (i) any
misrepresentation or breach of any representation, warranty, covenant or
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agreement by Buyer made in this Agreement or in any certificate or instrument
delivered pursuant hereto, (ii) any of the Assumed Liabilities and (iii) Buyer's
ownership of the Assets and operation of the business of Aviation from and after
the Closing Date.
(d) Third Party Claims. Promptly after the receipt by any
------------------
party hereto of notice of any claim, action, suit or proceeding of any third
party which is subject to indemnification hereunder, such party (the
"Indemnified Party") shall give written notice of such claim to the party
obligated to provide indemnification hereunder (the "Indemnifying Party") as
promptly as practicable after receipt of notice thereof, stating the nature and
basis of such claim and the amount thereof, to the extent known. Failure of the
Indemnified Party to give such notice shall not relieve the Indemnifying Party
from any liability which it may have on account of this indemnification or
otherwise, except to the extent that the Indemnifying Party is materially
prejudiced thereby. The Indemnifying Party shall have the right to assume the
defense of, or otherwise contest, such claim, action, suit or proceeding with
counsel reasonably satisfactory to the Indemnified Party; however, if the
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defendants in any such actions include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party shall have reasonably concluded
that there may be legal defenses or rights available to it which are different
from, in actual or potential conflict with, or additional to those available to
the Indemnifying Party, the Indemnified Party shall have the right to select one
law firm to act as separate counsel, on behalf of such Indemnified Party. Upon
the election by the Indemnifying Party to assume the defense of, or otherwise
contest, such litigation, proceeding, or other action, the Indemnifying Party
shall not be liable for any legal or other expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof unless (1) the
Indemnified Party shall have employed such counsel in connection with the
assumption of legal defenses or assertion of rights in accordance with the
provision of the preceding sentence or (2) the Indemnifying Party fails to take
reasonable steps necessary to diligently defend such claim within 20 days after
receiving notice from the Indemnified Party stating that the Indemnified Party
believes the Indemnifying Party has failed to take such steps, in which case the
Indemnified Party may assume its own defense and the Indemnifying Party shall be
liable for payment of any expenses therefore within thirty' (30) days after
incurrence thereof by the Indemnified Party. The parties agree to cooperate in
any such defense and to give each other full access to all information relevant
thereto. The Indemnifying Party shall not be obligated to indemnify the other
party hereunder for any settlement entered into without the Indemnifying Party'
s prior written consent, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, at any time after the Indemnifying Party has
failed to discharge its liability for legal and other expenses pursuant to the
second preceding sentence hereof, which failure shall not have been cured, or at
any time the Indemnifying Party is subject to a bankruptcy case pursuant to
Chapter 7 or Chapter 11 of the Bankruptcy Code, if the Indemnified Party shall
propose to settle a claim as to which it intends to seek indemnity, it shall
provide the Indemnifying Party with twenty-one (21) days' written notice of such
proposed settlement, and the Indemnifying Party shall, within such period either
(i) consent to the terms of the proposed settlement or (ii) provide the
Indemnified Party with (A) a written notice of objection to the proposed
settlement, with a statement of reason, (B) reasonable evidence that the
financial condition of the Indemnifying Party is sufficient to permit it to pay
a judgment-for the full amount being sought by the third party claimant (or, at
the Indemnified Party's request, a letter of credit in such amount) and (C) an
undertaking to satisfy any such judgment.
(e) Remedies Exclusive. Except as to the obligations of Seller
------------------
to sell, convey, transfer and deliver the Assets and Buyer to deliver the
purchase price and assume the Assumed Liabilities provided for in Section 1(c)
hereof and subject to the provisions below, the sole and exclusive remedies of
any party to this Agreement for any claim hereunder against any other party
hereto shall be the indemnification provided in this Section 9, and each party
agrees that it will not pursue any other remedy with respect thereto except that
any party hereto may seek specific performance or other appropriate equitable
relief if any party should breach its obligations set forth in Sections 1 or 2
above.
(f) Escrow Agreement. At Closing, Buyer, Seller, and
----------------
__________ Bank as the Escrow Agent, shall execute the Escrow Agreement in the
form attached to the Disclosure Memorandum, as Exhibit C. The sum of Five
Hundred Thousand and No/100 Dollars ($500,000.00) of the Cash Consideration
shall be deposited in escrow under the Escrow Agreement with the Escrow Agent
for a period not to exceed the 15-month anniversary from the Date of Closing. If
Buyer is the Indemnified Party with respect to a claim that provides that the
Seller is the Indemnifying Party and Buyer provides written notice of a claim
hereunder, the Buyer may also give a notice of such
19
claim in such amount under the Escrow Agreement. Neither the exercise of nor the
failure to give a notice of a claim under the Escrow Agreement will constitute
an election of remedy or limit Buyer or Seller in any manner in the enforcement
of any other remedies that may be available to it. Seller and Buyer shall each
pay one-half (1/2) of the Escrow Agents fees and expenses.
Section 10. BULK SALES ACTS. Seller will comply with the Bulk Sales Act
---------------
in effect in New Jersey. Within fifteen (15) days of the execution of this
Agreement, Seller shall apply to the Division of Taxation of the State of New
Jersey for a Tax Clearance Certificate for the transaction herein contemplated.
At the closing, Seller shall present the letter received from the Division of
Taxation in response to the application. Seller agrees to place into escrow with
the Escrow Agent such amount, if any, that the Division may request in its
response to Seller's application. The Escrow Agent may release the amount so
placed into escrow upon receipt of notice from the Division of Taxation that the
escrow may be released to Seller. Seller agrees that the amount placed into
escrow shall be treated as received by the Seller for purposes of compliance
with the delivery of the Purchase Price as set forth in Section 2(a) hereof.
Section 11. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS
----------
AGREEMENT, NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, ARE MADE
WITH RESPECT TO THE TITLE, MAINTENANCE, REPAIR, CONDITION, DESIGN OR
MARKETABILITY OF ANY OF THE ASSETS OF AVIATION, INCLUDING WITHOUT LIMITATION,
WITH RESPECT TO ANY PERSONAL PROPERTY, EQUIPMENT OR FIXTURES, (i) ANY IMPLIED OR
EXPRESS WARRANTY OF MERCHANTABILITY, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE OR (iii) ANY CLAIM BY BUYER FOR DAMAGE BECAUSE
OF DEFECTS, WHETHER KNOWN OR UNKNOWN, IT BEING THE EXPRESS INTENTION OF SELLER
AND BUYER THAT THE ASSETS OF AVIATION BEING TRANSFERRED TO BUYER HEREUNDER BE
TRANSFERRED, EXCEPT AS SET FORTH IN SECTION 4(f)(iv), IN THEIR PRESENT CONDITION
AND STATE OF REPAIR, "AS IS" AND "WHERE IS," WITH ALL FAULTS.
Section 12. EXPENSES. Seller agrees that all fees and expenses incurred
--------
by Seller in connection with the negotiation, preparation, execution or
performance of this Agreement shall be borne by Seller and Buyer agrees that all
fees and expenses incurred by Buyer in connection with the negotiation,
preparation, execution or performance of this Agreement shall be borne by Buyer.
Section 13. WAIVER. Any of the terms or conditions of this Agreement
------
may be waived at any time and from time to time in writing by the party entitled
to the benefits thereof without affecting any other terms or conditions of this
Agreement.
Section 14. NOTICES, ETC. All notices, requests, demands and other
------------
communications hereunder shall be in writing and shall be deemed to have been
duly given, if delivered in person or by courier, telegraphed, telexed or by
facsimile transmission or mailed by certified or registered mail, postage
prepaid:
If to Seller: c/o Ronson Corporation
Corporate Park III
X.X. Xxx 0000
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Att: Xxxxx X. Xxxxxx XX,
President and Chief Executive Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Szaferman, Lakind, Xxxxxxxxx & Blader, P.C.
Quakerbridge Executive Center
000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
20
Lawrenceville, New Jersey 08648
Att: Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Buyer: Hawthorne TTN Holdings, LLC
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Att: Xxxxxx Xxxxxxxx
President
Telephone: (000)000-0000
Telecopier: (000)000-0000
with a copy to: Xxxxxx & Xxxxxxx, L.L.P.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Att: Xxxx X. Xxxxxx, III Esquire
Telephone: (000)000-0000
Telecopier: (000)000-0000
Any party may, by written notice to the other, change the address to which
notices to such party are to be delivered or mailed.
Section 15. ENTIRE AGREEMENT: AMENDMENT. This Agreement sets forth the
---------------------------
entire agreement and understanding of the parties in respect of the transactions
contemplated hereby and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof and thereof including all
such agreements, arrangements and understandings between Seller and Buyer. No
representation, promise, inducement or statement of intention has been made by
Seller or Buyer which is not embodied in this Agreement, the Disclosure
Memorandum, Schedules, or the written statements, certificates or other
documents delivered pursuant hereto, and neither Seller nor Buyer shall be bound
by or liable for any alleged representation, promise, inducement or statement of
intention not so set forth. This Agreement may be amended or modified only by a
written instrument executed by Seller and Buyer or by their permitted successors
and assigns
Section 16. PRESS RELEASES. Neither Seller nor Buyer shall issue any
--------------
press releases or make any public announcements of any of the transactions
contemplated by this Agreement except as may be mutually agreed to in writing by
Seller and Buyer after the execution of this Agreement; provided, that Seller
--------
and Buyer shall be permitted, upon prior notice to the other parties, to make
such disclosures to the public or governmental authorities as their respective
counsel shall deem necessary to maintain compliance with, or to prevent
violation of, applicable laws.
Section 17. GENERAL. This Agreement: (i) shall be construed and
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enforced in accordance with the laws of the State of New Jersey without giving
effect to the choice of law principles thereof; (ii) shall inure to the benefit
of and be binding upon the permitted successors and assigns of Seller and Buyer,
nothing in this Agreement, expressed or implied, being intended to confer upon
any other person any rights or remedies hereunder; that no party may assign its
rights or obligations hereunder without the prior written consent of the other;
and (iii) may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument. The Section and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 18. SEVERABILITY. To the extent that any provision of this
------------
Agreement which does not materially affect the intent of the parties hereto
shall be invalid or unenforceable, it shall be considered deleted here from and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect. In furtherance and not in limitation of
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the foregoing, if the duration or geographic extent of, or business activity
covered by, any provision of this Agreement shall be in excess of that which is
enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may be validly and
enforceably covered.
Section 19. TERMINATION AND ABANDONMENT.This Agreement may be
---------------------------
terminated and the transactions contemplated hereby abandoned (i) by the mutual
consent of Seller and Buyer; (ii) by Buyer, on the one hand, or by Seller, on
the other hand, at any time after July 30, 2009 (or such later date as shall
have been agreed to in writing by them) if for any reason the transactions
contemplated hereby shall not by such date have been consummated, except,
however, in the event of delay due to regulatory bodies, Buyer and Seller agree
to extend the Agreement for an additional 60 days; or (iii) by Seller or the
Parent, in the event that the Board or a committee thereof recommends or
approves a third party proposal. A third party proposal shall mean any inquiry,
proposal or offer from any person that is not an affiliate of the Parent or the
Buyer relating to, or that is reasonably likely to lead to any merger,
consolidation, or business combination, recapitalization, financing,
refinancing, restructuring or reorganization involving Parent, Seller and/or any
affiliate thereof, a sale of assets that constitutes or represents 10% or more
of the consolidated assets of Parent or Seller and their subsidiaries, taken as
a whole, a sale of shares of capital stock of Parent or Seller or any of their
subsidiaries that would result in any person beneficially owning 10% or more of
any class or series of equity securities of Parent or Seller or any of their
subsidiaries or any similar transactions involving Parent or Seller or any of
their subsidiaries, other than the transactions required by this Agreement, or
the consummation of any other transaction or the entering into of any other
agreement or arrangement with respect to any other transaction, the effect of
which would have the same result as the transactions described above. In the
event that this Agreement is terminated by the Parent and the Seller pursuant to
(iii) above as a consequence of the Parent's Board's determination to accept a
third party proposal (other than as a result of the Stipulation of Settlement
dated October 12, 2007 among Ronson Corporation and certain of its shareholders
(Disclosure Memorandum, Exhibit B ), including any transaction pursuant
thereto)) and the transaction contemplated by such third party proposal is
ultimately consummated, the Parent shall pay to the Buyer a termination fee in
the amount of Four Hundred Thousand and No/100 Dollars ($400,000.00) which fee
shall be payable within fifteen (15) days of the consummation of such
transaction. In the event this Agreement is terminated by Seller pursuant to
(ii) above, Seller will repay to Buyer its actual accounting fees, environmental
expenses and legal fees incurred with respect to this Agreement and due
diligence hereunder, not to exceed One Hundred Fifty Thousand and No/100 Dollars
($150,000.00), and such amount to be payable within fifteen (15) days after any
such termination by Seller.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement the day and year first above written.
RONSON CORPORATION
BY : /s/ Xxxx Xxxxxxx
---------------------------
Xxxx Xxxxxxx
Chief Reconstruction Officer
RONSON AVIATION, INC.
BY : /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Chief Reconstruction Officer
HAWTHORNE TTN HOLDINGS, LLC
BY : /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
President, Hawthorne Corp.
Managing Member
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