PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered effective December 31, 1997, by and
among XXXXXXX BEHEER B.V., a company organized under the laws of the Netherlands
("Xxxxxxx Beheer" or the "Seller"), Q.E.P. CO., INC., a corporation organized
under the laws of Delaware ("Q.E.P." or the "Purchaser"), and Xxxxxxx
Consolidated Industries, Inc., a corporation organized under the laws of
Delaware and which is wholly-owned by Q.E.P. ("Xxxxxxx USA").
RECITALS
WHEREAS, on or about March 12, 1992, Seller and certain affiliated
parties entered into a License and Distribution Agreement (the "License
Agreement"), pursuant to which, among other things, Seller was granted an
exclusive license by Xxxxxxx USA to use the Intellectual Property (hereinafter
defined) of Xxxxxxx USA within the Territory (hereinafter defined); and
WHEREAS, effective December 31, 1997, Xxxxxxx Beheer and Q.E.P. Holding
B.V. entered into a Stock Purchase Agreement (the "Stock Purchase Agreement"),
pursuant to which Q.E.P. Holding B.V. will purchase, and Xxxxxxx Beheer will
sell, all of the outstanding capital stock of Xxxxxxx Xxxxxxx; and
WHEREAS, Purchaser desires to purchase, and Seller desires to sell, all
of the Seller's rights, privileges, benefits, title and interest to the License
Agreement and the Intellectual Property;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and in reliance upon the representations and warranties contained
herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the License Agreement and its Exhibits
and Schedules are attached hereto and are incorporated herein as Exhibit "I."
All terms used herein shall have the same meaning as set forth in the License
Agreement, except any terms used in this Agreement which are not defined in the
License Agreement shall have the meaning set forth as definitions in this
Article, unless the specific context clearly requires a different meaning. The
singular used in any defined terms shall include the plural and the plural use
shall include the singular.
AGREEMENT means this Agreement and all Exhibits and Schedules hereto.
CLOSING has the meaning given to it in Section 2.3.
CLOSING DATE has the meaning given to it in Section 2.3.
INTELLECTUAL PROPERTY means all Trademarks, Tradenames and Technical
Information, including trade dress logos, together with all translations,
adaptations, derivations and combinations thereof and including all goodwill
associated therewith, and all applications, registrations and renewals in
connections therewith, all other proprietary rights and all copies and tangible
embodiments thereof (in whatever form or medium), granted to Seller pursuant to
the License Agreement.
KNOWLEDGE means, when used in the context of Knowledge of Seller, the
actual Knowledge of the officers, directors, employees, agents or
representatives of Xxxxxxx Beheer.
LICENSE AGREEMENT means that certain License and Distribution
Agreement, dated March 12, 1992, by and among Seller, certain subsidiaries of
Seller and Xxxxxxx USA, and all underlying rights, privileges, benefits, title
and interest to, among other things, the Trademarks, Tradenames, Products and
Technical Information thereto (as defined in the License Agreement).
PURCHASE PRICE has the meaning given it in Section 2.2.
PURCHASER means Q.E.P. Co., Inc., a corporation organized under the
laws of Delaware.
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SELLER means Xxxxxxx Beheer B.V., a company organized under the laws of
the Netherlands.
ARTICLE II
PURCHASE OF THE LICENSE AGREEMENT
Subject to the terms and conditions set forth in this Agreement:
SECTION 2.1 PURCHASE OF LICENSE AGREEMENT. At the Closing, as defined
below, Seller shall endorse and deliver such instruments, documents,
certificates or instructions as may be necessary to transfer and convey all of
Seller's rights, title and interest in and to the License Agreement and its
underlying Intellectual Property rights, privileges and benefits thereto to
Purchaser (the "Purchase"). Upon receipt of such documents, instruments,
certificates or instructions, and upon the Closing, Purchaser shall become the
beneficial and record holder of the License Agreement and entitled to all of the
rights, benefits and privileges with respect thereto, free of all encumbrances,
liens, security interests or other claims, and any and all obligations of the
Seller under or in relation to the License Agreement as from the Closing Date
shall be transferred to, assumed and accepted by the Purchaser.
SECTION 2.2 PURCHASE PRICE FOR THE LICENSE AGREEMENT. The aggregate
purchase price for the License Agreement and its underlying Intellectual
Property rights, privileges and benefits thereto shall consist of cash in the
amount of Two Hundred Eighty-Eight Thousand U.S. Dollars ($288,000.00) (the
"Purchase Price"), which shall be delivered to Seller at the Closing subject to
and upon the terms and conditions hereof and the representations and warranties
contained herein, and which shall be paid in the form of a wire transfer of
immediately available funds through a financial institution designated by the
Seller. Such payment shall be $288,000.00 U.S. Dollars.
SECTION 2.3 CLOSING. The closing of this Agreement (the "Closing")
shall take place at the offices of Xxxxx/van Os Notarissen, Xxxxxxxxxxxxxx 0,
Xxxxxxxxx on January 20, 1998 (the "Closing
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Date"), or such other place or date as the parties hereto may agree, but no
later than January 31, 1998.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that the statements
contained in this Article III are true, correct and complete in all material
respects as of the date of this Agreement.
SECTION 3.1 AUTHORIZATION. This Agreement has been duly and validly
executed and delivered by Seller and the agreements, representations and
warranties contained herein constitute valid and binding obligations,
representations and warranties of Seller enforceable in accordance with their
terms. This Agreement and the consummation of the transactions contemplated
hereby have been duly and unanimously approved by the management board of
Seller.
SECTION 3.2 NO CONFLICTING AGREEMENTS. The execution and delivery of
this Agreement by Seller does not, and consummation by Seller of the
transactions contemplated hereby will not, (a) to the Knowledge of Seller,
violate any existing term or provision of any law, regulation, order, writ,
judgment, injunction or decree applicable to Seller or to the License Agreement
or its underlying Intellectual Property rights, benefits or privileges, (b)
conflict with or result in a breach of any of the terms, conditions or
provisions of the articles of association or bylaws (or similar governing
documents) of Seller or of any material agreement or instrument to which Seller
is a party, or (c) result in the creation or imposition of any lien, charge,
security interest, encumbrance, restriction or claim upon the License Agreement
or the underlying Intellectual Property rights, benefits or privileges.
SECTION 3.3 MATERIAL MISSTATEMENTS OR OMISSIONS. Neither this Agreement
nor any other document, certificate or written statement furnished to Purchaser
by or on behalf of Seller in connection with this Agreement contains any untrue
statement of a material fact, or omits any
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material fact necessary to make the statements contained herein or therein not
misleading in light of the context in which they were made.
SECTION 3.4 NO KNOWN ADVERSE EFFECTS. Seller has no Knowledge of any
fact which materially adversely affects, or will materially adversely affect,
the Purchase which has not been set forth in writing in this Agreement or
disclosed in the other documents, certificates or written statements furnished
to Purchaser by or on behalf of Seller in connection herewith.
SECTION 3.5 CONSENTS AND APPROVALS. The execution and delivery by
Seller of this Agreement, and the performance by Seller of its obligations
hereunder, does not require Seller to obtain any consent, approval, agreement,
or action of, or make any filing with or give any notice to, any corporation,
person, entity, or firm or any public, governmental or judicial authority except
(i) such as have been duly obtained or made, as the case may be, and/or will be
duly obtained and made and in full force and effect as of the Closing, (ii)
those as to which the failure to obtain would have no material adverse effect on
the Purchase or the License Agreement, and (iii) approval of the Seller's
management board, which shall be obtained prior to the execution hereof.
SECTION 3.6 LITIGATION. There are no actions, proceedings or
investigations pending or, to the Knowledge of Seller, threatened against
Seller, concerning the License Agreement or the underlying Intellectual Property
rights thereto, before any court or administrative agency which could result in
any material adverse effect on the License Agreement or the underlying
Intellectual Property rights, benefits or privileges thereto. Furthermore, no
employee or former employee of Seller has any claim with respect to any
Intellectual Property rights of Seller or any claim with respect to the License
Agreement or the underlying Intellectual Property rights, benefits or privileges
thereto.
SECTION 3.7 REGISTRATIONS. All registrations which are listed on
EXHIBIT 3.8 are in good standing, valid, subsisting and in full force and effect
in accordance with their terms. None of the Intellectual Property or Seller's
right thereto is, to Seller's Knowledge, being infringed or otherwise
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violated by any person or entity. The use of the Intellectual Property by the
Seller, the use and sale by or for Seller of Products incorporating the
Intellectual Property and the use or application of Products incorporating the
Intellectual Property by customers of Seller in accordance with promotions or
recommendations of Seller, do not to Seller's Knowledge, infringe or otherwise
violate any rights of any person or entity solely as a result of the use, sale,
application or incorporation of such Intellectual Property, and there is no
pending or, to Seller's Knowledge, threatened claim alleging any such
infringement or violation. In addition, there is no pending or, to Seller's
Knowledge, threatened claim alleging any defect in or invalidity, misuse or
unenforceability of or challenging the ownership or use of or Seller's rights
with respect to any of the Intellectual Property rights.
SECTION 3.8 TITLE TO INTELLECTUAL PROPERTY. The License Agreement to be
transferred to Purchaser pursuant to this Agreement includes all of the rights,
title and interest granted to and used by Seller pursuant to the License
Agreement. The execution and delivery of this Agreement and related documents by
the parties and the payment by Purchaser to Seller of the Purchase Price set
forth in Section 2.1 hereof will result in Purchaser's immediate acquisition of
all right, title and interest to the License Agreement and the underlying
Intellectual Property rights, benefits and privileges thereto, free and clear of
any liens, encumbrances, security agreements, equities, options, claims, charges
and restrictions.
SECTION 3.9 DISCLOSURE. To the Knowledge of Seller, Seller has
disclosed to Purchaser all material facts and information relating to the
License Agreement and all underlying Intellectual Property rights, interest,
benefits and privileges thereto.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers that the statements
contained in this Article V are true, correct and complete as of the date of
this Agreement.
SECTION 4.1 ORGANIZATION AND QUALIFICATION OF PURCHASER. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the full corporate power and authority to own
and operate its properties and to carry on its business.
SECTION 4.2 AUTHORIZATION. This Agreement and all other agreements
contemplated hereby to be executed and delivered by Purchaser have been duly and
validly authorized by the board of directors of Purchaser, duly and validly
executed and delivered by Purchaser, and the agreements, representations, and
warranties contained herein and therein constitute valid and binding
obligations, representations, and warranties of Purchaser enforceable in
accordance with their respective terms.
SECTION 4.3 MATERIAL MISSTATEMENTS OR OMISSIONS. Neither this Agreement
nor any other document, certificate or statement furnished to Seller by or on
behalf of Purchaser in connection with this Agreement contains any untrue
statement of a material fact, or omits any material fact necessary to make the
statements contained herein and therein not misleading in light of the context
in which they were made.
SECTION 4.4 NO KNOWN ADVERSE EFFECTS. Xxxxxxx USA has no knowledge of
any infringement of the terms and conditions of the License Agreement by Seller
except as set forth on Exhibit 4.4.
ARTICLE V
INDEMNIFICATION
SECTION 5.1 INDEMNIFICATION. For purposes of this Agreement, the
indemnification provisions set forth in Section 5.5 of the Stock Purchase
Agreement are incorporated herein and
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apply to the parties hereto as if set forth in full. Notwithstanding the
preceding sentence, for purposes of this Agreement, the Maximum Indemnification
(as defined in the Stock Purchase Agreement) in connection with the Purchase
shall be 10% of the Purchase Price (as defined in Section 2.2 herein).
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 NOTICE. All notices required or permitted to be given
hereunder shall be in writing, signed by the sender, and delivered by personal
delivery overnight courier service or by registered or certified mail to:
If to Purchaser: Q.E.P. Co., Inc.
0000 Xxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxx Xxxxx, President
Xxxx Xxxxxxxxx, Chief Financial Officer
With a copy to: Berliner Xxxxxx Xxxxxx & Xxxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to Seller: Xxxxxxx Beheer B.V.
X.X. Xxx 00, Xxxxxxxxxxx
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
(31) (0) 000-000000 (fax)
Attention: Xxxxxxx Xxxxxxxx
With a copy to: Xxxxx Dutilh
Xxxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxx XX0X 00X
Xxxxxx Xxxxxxx
(44) (0) (000) 000 0000 (fax)
Attention: Xxxx X. Xxxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
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SECTION 6.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the parties contained in this Agreement and
all claims and causes of action with respect thereto shall terminate upon the
second anniversary of the Closing Date. In the event notice of a claim for
indemnification under this Agreement is given within the applicable survival
period, the representations and warranties that are the subject of such
indemnification claim shall survive with respect to such claim until such time
as such claim is fully resolved. This Section 6.2 shall not limit any agreement
of the parties hereto which by its terms requires performance after the Closing.
SECTION 6.3 FURTHER ASSURANCES. In case at any time after the Closing
any further action is necessary or desirable to carry out the purposes of this
Agreement, the parties will take such further action (including the execution
and delivery of such further instruments and documents) as any other party
reasonably may request. The parties agree to use their best efforts in good
faith to satisfy the various conditions to Closing required to be satisfied by
them and to consummate the transactions provided for herein as expeditiously as
possible. The parties will not take or knowingly permit to be taken any action
that would be in breach of the terms or provisions of this Agreement or that
would cause any of their representations and warranties contained herein to be
or become untrue in any material respect.
SECTION 6.4. ENTIRE AGREEMENT; ASSIGNMENT. This Agreement (including
all exhibits and schedules attached hereto) (a) constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings both written and oral
between the parties with respect to the subject matter hereof, and (b) shall not
be assigned by operation of law or otherwise.
SECTION 6.5. VALIDITY. If any provision of this Agreement or the
application thereof to any person or circumstance is held invalid or
unenforceable, the remainder of this Agreement and the
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application of such provision to other persons or circumstances shall not be
affected thereby and to such end the provisions of this Agreement are agreed to
be severable.
SECTION 6.6. GOVERNING LAW AND JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
Any dispute arising in connection with this Agreement or any further agreement
resulting from or concluded in connection with this Agreement shall be brought
before a competent court in Delaware, United States of America.
SECTION 6.7. DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
SECTION 6.8. PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns and, except as provided in Section 6.4, nothing in this
Agreement express or implied is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
SECTION 6.9. PERSONAL LIABILITY. This Agreement shall not create or be
deemed to create or permit any personal liability or obligation on the part of
any direct or indirect stockholder of the Purchaser or Seller or any supervisory
board member, officer, director, employee, agent, representative or investor of
any party hereto.
SECTION 6.10. SPECIFIC PERFORMANCE. The parties hereby acknowledge and
agree that the failure of any party to perform its agreements hereunder,
including its failure to take all actions as are necessary on its part to the
Closing of the Purchase, will cause irreparable injury to the other parties, for
which damages, even if available, will not be an adequate remedy. Accordingly,
each party hereby consents to the issuance of injunctive relief by any court of
competent jurisdiction to
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compel performance of such party's obligations and to the granting by any court
of the remedy of specific performance of its obligations hereunder.
SECTION 6.11. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
PURCHASER:
Q.E.P. CO., INC.
By: /S/ XXXXX XXXXX
-----------------------------------------
Xxxxx Xxxxx, President
SELLER:
XXXXXXX BEHEER B.V.
By:__________________________________________
XXXXXXX CONSOLIDATED INDUSTRIES, INC.
By: /S/ XXXXX XXXXX
-----------------------------------------
Xxxxx Xxxxx, President
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