ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 1st day of June, 2002 by and between
Outlook Group Corp., a Wisconsin corporation ("Buyer"), and Paragon Direct,
Inc., a Wisconsin corporation ("Seller").
RECITALS:
A. Seller is engaged in the Business (as hereinafter defined); and
B. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, certain assets of Seller relating to the Business, upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties agree as follows:
ARTICLE I
DEFINITIONS
In addition to the other definitions contained herein, the following
definitions shall apply for purposes of this Agreement:
1.1 Accounts. "Accounts" means all trade accounts receivable of Seller
from the Customers purchased by Buyer hereunder.
1.2 Assumed Contracts. "Assumed Contracts" means (a) those written
agreements between Seller and the Customers, including open purchase orders
received by Seller from the Customers, and (b) those written facilities and
equipment leases, software licenses and other agreements that are set forth on
Schedule 1.2 attached hereto.
1.3 Assumed Liabilities. "Assumed Liabilities" means (a) the
liabilities and obligations of Seller under the Assumed Contracts arising from
and after the Effective Time; (b) Seller's trade accounts payable, accounts
payable relating to the Purchased Assets, refunds due customers and accrued
expenses (including accrued employee vacation pay and benefits but excluding
other payroll expenses), to the extent such liabilities were incurred in the
ordinary course of the Business and are reflected on the Closing Balance Sheet;
and (c) the obligations specifically giving rise to accrued warranty expense, to
the extent reflected on the Closing Balance Sheet; and only such liabilities and
obligations.
1.4 Xxxx of Sale. "Xxxx of Sale" means the xxxx of sale, assignment and
assumption agreement executed by Seller, in substantially the form of Exhibit A
attached hereto.
1.5 Business. "Business" means Seller's marketing and support business
of list processing (including address hygiene programs, NCOA/DSF, and mail/purge
for businesses or consumers), database services (including list rental
fulfillment, customer marketing database, prospect database/contact management,
and list enhancement/overlays), analytical services
(including profiling and modeling, REM scoring and analysis, and
post-campaign/response analysis), mail processing (including postal presort &
bundling and inkjet tape and label output) and forms and letters (including
personalized customer letters and renewal & reorder letters).
1.6 Cap. See Section 4.1.
1.7 Cash. See Section 4.1.
1.8 Closing. "Closing" means the closing of the transactions provided
for in this Agreement, which shall take place at the offices of Xxxxxxx & Xxxxx
LLP, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, or such other place as the
parties may agree upon, at 11:30 a.m., Central time, on June 3, 2002 or such
other date as the parties agree on, but in no event later than June 15, 2002.
The Closing shall, for all intents and purposes, be deemed to be effective as of
the Effective Time.
1.9 Closing Date. "Closing Date" means the date on which the Closing
occurs.
1.10 Closing Balance Sheet. "Closing Balance Sheet" means Seller's
balance sheet as of the Effective Time, prepared in a manner consistent with
generally accepted accounting principles consistently applied and consistent
with the Seller's balance sheet of April 30, 2002.
1.11 Current Assets. "Current Assets" means Seller's cash (including
related bank accounts), prepaid expenses, inventories, deposits and other assets
set forth on the Closing Balance Sheet that are regarded under generally
accepted accounting principles as being current assets (excluding the Accounts).
1.12 Customers. "Customers" means Seller's customers, set forth on
Schedule 1.12 attached hereto, which term shall include customer lists,
agreements rights, relationships, goodwill, orders, and related customer
information.
1.13 Disclosure Schedule. "Disclosure Schedule" means the disclosure
schedule dated the date of this Agreement which has been executed and delivered
by Seller to Buyer contemporaneously with the execution and delivery of this
Agreement, and which shall be updated as of the Closing.
1.14 Effective Time. "Effective Time" shall mean 12:01 a.m. on June 1,
2002, or such other time as Buyer and Seller may determine.
1.15 Employment Agreement. "Employment Agreement" means an employment
letter agreement from Buyer to Xxxxxxx, in a form, and with the terms, to be
mutually agreed by Xxxxxxx and Buyer.
1.16 Equipment. "Equipment" means selected items of Seller's computers,
furniture, furnishings, office supplies, equipment and other fixed assets set
forth on Schedule 1.16 attached hereto.
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1.17 Excluded Assets. "Excluded Assets" means Seller's goodwill, net
financing costs, rights under non-compete agreements from the previous owners of
Seller, and Seller's franchise to be a corporation.
1.18 Indemnified Party; Indemnifying Party. See Section 10.1.
1.19 Intellectual Property. "Intellectual Property" means all of
Seller's intellectual property rights used in the Business or relating to the
Purchased Assets, including without limitation all current and prior versions,
and versions under development, of software (including source codes, object
codes, notes, development materials, user and technical manuals and all rights
and licenses to use third party information incorporated therein), programs,
data, designs, blueprints, discoveries, specifications, formulae, domain names,
website content, copyrights, patents (including patent applications), trademarks
(including trademark applications), trade names (including the name "Paragon
Direct"), service marks, service names, know-how, trade secrets, and other
proprietary information, including all licenses to the foregoing granted by or
to Seller, together with all of the goodwill associated therewith and the right
to xxx for past infringement thereof.
1.20 Knowledge. See preamble in Article V.
1.21 Law. "Law" means any federal, state or local statute, ordinance,
rule, regulation, order, judgment or decree.
1.22 Lien. "Lien" means, with respect to any asset, any mortgage,
pledge, lien, charge, claim, restriction, easement, covenant, lease,
encroachment, title defect, imposition, security interest or encumbrance of any
kind.
1.23 Non-Competition Agreements. "Non-Competition Agreements" mean the
non-competition agreements between Buyer on the one hand, and respectively
Seller and Xxxxxxx on the other hand, in substantially the forms of Exhibits B
and C attached hereto.
1.24 Purchase Price. See Section 4.1.
1.25 Purchased Assets. "Purchased Assets" means all of the assets and
rights of Seller existing as of the Closing Date (other than the Excluded
Assets), including without limitation the following:
(a) The Accounts;
(b) The Current Assets;
(c) The Equipment;
(d) The Customers;
(e) The Intellectual Property; and
(f) Rights and interests in and to the Assumed Contracts.
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1.26 Xxxxxxx. "Xxxxxxx" means Xxxxx X. Xxxxxxx, a Wisconsin resident
individual.
1.27 Special Accounts. "Special Accounts" means the Accounts which are
specified on Schedule 1.27 attached hereto.
1.28 Subject Transactions. "Subject Transactions" means the
transactions contemplated by this Agreement.
1.29 Third Party Claim. See Section 10.5.
1.30 Xxxxx Fargo. "Xxxxx Fargo" means Xxxxx Fargo Bank Minnesota, N.A.
and any affiliates thereof.
ARTICLE II
PURCHASE AND SALE
As of the Effective Time, upon the terms and subject to the conditions
contained herein, Seller shall sell, transfer, assign, convey and deliver to
Buyer, and Buyer shall purchase from Seller, all of the Purchased Assets. The
Purchased Assets will be conveyed to Buyer free and clear of all Liens.
ARTICLE III
ASSUMPTION OF LIABILITIES
As of the Effective Time, upon the terms and subject to the conditions
contained herein, Buyer shall assume and agree to fully pay, perform and
discharge only the Assumed Liabilities. Except for the Assumed Liabilities,
Buyer shall not assume any liabilities or obligations of Seller, which remain
Seller's Liabilities and obligations. Following the Closing, Seller shall be
solely responsible to pay, perform and discharge all of its liabilities and
obligations, other than the Assumed Liabilities.
ARTICLE IV
PURCHASE PRICE; ADJUSTMENTS
4.1 Amount; Payment Schedule. As consideration for the Purchased
Assets, the Buyer shall make the following payments to Seller, together
constituting the "Purchase Price", subject in all cases to the adjustments
described below in this Section 4.1:
(a) At Closing, Buyer shall pay $1,000,000 to Seller (or its
designee), by wire transfer of immediately available funds to an account
designated by Seller.
(b) Ten business days after the delivery provided in Section
4.2 hereto, Buyer shall pay to Seller (or its designee), by wire transfer of
immediately available funds to an account designated by Seller, an amount equal
to the lesser of cash on the Closing Balance Sheet or the amount of Seller's
cash (as cleared funds) that has been transferred to Buyer (the "Cash").
(c) Buyer shall pay to Seller (or its designee), by wire
transfer of immediately available funds to an account designated by Seller, the
net amount of the Accounts (excluding
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the Special Accounts) that are actually collected by Buyer within 120 days from
the Effective Time, but only up to an amount equal to the difference between
$325,000 minus the amount of the Cash (the "Cap"). Subject to the Cap, Buyer
shall make such payments as follows:
(i) 67 days after the Effective Time, Buyer shall pay to
Seller the net amount of the Accounts (excluding the Special Accounts) actually
collected by Buyer during the 60-day period following the Effective Time; and
(ii) 127 days after the Effective Time, Buyer shall pay to
Seller the net amount of the Accounts (excluding the Special Accounts) actually
collected by Buyer during the period from 61 days after the Effective Time until
120 days after the Effective Time.
Buyer shall use reasonable good faith efforts, consistent with its customary
practices, to collect the Accounts on a timely basis.
(d) Buyer shall pay to Seller (or its designee), by wire transfer of
immediately available funds to an account designated by Seller, the net amount
of the Special Accounts that are actually collected by Buyer on or prior to May
31, 2003, but only up to an amount equal to $85,000. Subject to the preceding
$85,000 maximum amount, Buyer shall make such payments as follows:
(i) 67 days after the Effective Time, Buyer shall pay to
Seller the net amount of the Special Accounts actually collected by Buyer during
the 60-day period following the Effective Time;
(ii) 127 days after the Effective Time, Buyer shall pay to
Seller the net amount of the Special Accounts actually collected by Buyer during
the period from 61 days after the Effective Time until 120 days after the
Effective Time; and
(iii) Ten business days after the receipt of any net amount
prior to May 31, 2003, Buyer shall pay to Seller the net amount of the Special
Accounts actually collected by Buyer during the period from 120 days after the
Effective Time (or later partial payment under this subsection (d)(iii) and
ending on such date of receipt.
(e) The Purchase Price shall be reduced on a dollar-for-dollar basis
by:
(i) the amount of any principal payments made by Seller to
Xxxxx Fargo after March 1, 2002;
(ii) any payments made by the Seller (and not reimbursed by
Xxxxx Fargo or another third party) either for its expenses under Section 12.1
hereof, or any similar expenses of Xxxxx Fargo;
(iii) any amounts paid by Seller relating to "Other Current
Liabilities" on Seller's April 30, 2002 balance sheet, and any amounts remaining
due to third parties for such items or matters of the same type and nature;
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(iv) the amount by which the accounts payable included in
Assumed Liabilities as reflected on the Closing Balance Sheet exceed $130,000;
and
(v) the amount by which the accruals for employee vacations
and accrued warranties included in Assumed Liabilities together exceed $79,000.
Any such reductions to the Purchase Price shall first be applied to the payments
to be made in clause (b) above, then (c)(i), then (d)(i), then (c)(ii), then
(d)(ii) and finally to clause (d)(iii).
4.2 Lists of Purchased Assets; Closing Balance Sheet. At the Closing,
Seller shall deliver to Buyer a list of Assumed Contracts and Customers and
estimated itemized lists of the Accounts (including an aging schedule), Current
Assets and Equipment, and an estimated Closing Balance Sheet. Within ten days
after the Closing, Seller shall deliver to Buyer a Closing Balance Sheet
prepared in accordance with generally accepted accounting principles on a basis
consistent with Seller's past practices and fairly presenting in all material
respects the financial condition of Seller as of the Effective Time, and final
itemized lists of the Accounts (including an aging schedule), Current Assets and
Equipment.
4.3 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Purchased Assets as agreed between the parties as soon as practical
after the finalization of the Closing Date Balance Sheet. The parties shall not
file any return or document with the Internal Revenue Service that is
inconsistent with such allocation.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows, subject to
any exceptions disclosed on the Disclosure Schedule. The information shown on
the Disclosure Schedule specifically refers to the section(s) or subsection(s)
of this Article V to which such information is responsive. For purposes of this
Article V, references to the "knowledge" of Seller means those facts and matters
which are known by Xxxxxxx or the other officers or managers of Seller, or
through the exercise of reasonable diligence should be known by Xxxxxxx.
5.1 Organization. Seller is a corporation validly existing and in
active status under the Laws of the State of Wisconsin. Seller has all requisite
corporate power and corporate authority to carry on the Business as it is now
being conducted. Xxxxxxx owns 100% of the outstanding capital stock of Seller.
There are no outstanding options, warrants or other rights to acquire any
capital stock of Seller, except for the rights of Xxxxx Fargo as described on
the Disclosure Schedule.
5.2 Authorization, Validity, Etc. Seller has all requisite corporate
power and authority to enter into this Agreement and carry out the Subject
Transactions. Seller's Board of Directors and sole shareholder have duly
authorized Seller's execution and delivery of this Agreement and its
consummation of the Subject Transactions, and no other corporate action by
Seller is required by Law, its articles of incorporation or bylaws or otherwise
to authorize the execution and delivery by Seller of this Agreement or the
consummation by it of the Subject Transactions. This Agreement has been duly
authorized, executed and delivered by Seller. This Agreement is the valid and
binding agreement of Seller enforceable in accordance with its terms.
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5.3 Compliance. Neither the execution or delivery by Seller of this
Agreement nor the consummation by Seller of the Subject Transactions will result
in any violation of or be in conflict with, or constitute a default under, any
Law applicable to Seller, any provision of Seller's articles of incorporation or
bylaws or any contract to which Seller is a party or by which Seller or any
Purchased Asset is bound or affected.
5.4 Consents and Approvals. No consent, approval or authorization of,
or declaration, filing or registration with, any person, entity or governmental
or regulatory authority or agency, whether federal, state or local, is required
of Seller in connection with the execution or delivery by Seller of this
Agreement or the consummation by Seller of the Subject Transactions. No Acquired
Contract will require the consent of the other party thereto to, or as a result
of, the Subject Transactions. The consummation of the Subject Transactions will
not cause the termination of, or a breach, violation or default under, any such
Acquired Contract.
5.5 Good Title. The Purchased Assets are owned by Seller, free and
clear of all Liens, except those security interests, if any, described in the
Disclosure Schedule (for which full releases as to the Purchased Assets will be
obtained by Seller at or prior to the Closing). Except as set forth in the
Disclosure Schedule, there are no Uniform Commercial Code financing statements
of record in any jurisdiction showing Seller as the debtor and covering any of
the Purchased Assets.
5.6 Accounts. Except as described in the Disclosure Schedule, the
Accounts represent valid claims for bona-fide, arms-length sales of goods or
services made by Seller, and the aging schedule with respect thereto provided by
Seller to Buyer is accurate in all material respects. The Accounts arose in the
ordinary course of business. No Accounts are in dispute or, to Seller's
knowledge, otherwise uncollectible, nor are any credits or other amounts due any
customer.
5.7 Intellectual Property.
(a) The Disclosure Schedule contains a true, correct and
complete list of (i) all patents held by Seller and all re-examinations,
re-issues, divisions, continuations, continuations in part and extensions
thereof and all pending patent applications by Seller, including for each such
patent the serial or patent number, country, filing and expiration date and
title, (ii) all registered trademarks of Seller and pending trademark
registrations by Seller, including, for each such trademark, the registration
number, filing and expiration date, xxxx and class, (iii) all registered
copyrights of Seller and copyright applications by Seller, including the
registration number, country and filing and expiration date of each such
copyright; (iv) all service marks, trade names and brand names of Seller used in
the Business (whether or not registered); and (v) all software currently being
used by Seller (designating whether such software is proprietary or licensed),
together with an identification of licenses relating thereto. All such patents,
trademarks and copyrights are properly registered, any applications therefor
have been properly made, and all annuity, maintenance, renewal and other fees in
connection with any of the foregoing are current.
(b) Neither the Intellectual Property, nor the conduct of the
Business, infringes on the intellectual property rights of any other party.
Since January 1, 2000, no claim
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or allegation of infringement has been made by or against Seller, whether
relating to any item of Intellectual Property or otherwise, no claim or
allegation of misappropriation or misuse of any item of Intellectual Property
has been made by or against Seller, and no claim or allegation has been asserted
by any Person with respect to the ownership or use of any of the Intellectual
Property by Seller or challenging or questioning the validity or effectiveness
of any such license, contract or commitment.
(c) Seller has good and valid title to, or otherwise possesses
exclusive rights to, the Intellectual Property, except to the extent it licenses
such Intellectual Property under licenses disclosed in the Disclosure Schedule.
Seller has validly licensed any and all non-proprietary software used in the
conduct of the Business, and Seller's use of any such software has been in
accordance, in all material respects, with the terms and conditions of any such
licenses.
(d) The Disclosure Schedule also includes a list of all
licenses granted by the Seller with respect to its Intellectual Property.
5.8 Condition of Equipment; Location of Assets; Facility.
(a) The Equipment, taken as a whole, is in good operating
condition (ordinary wear and tear excepted), and there are no material defects
or repairs needed in connection therewith.
(b) The Disclosure Schedule set forth the location of each
item of Equipment.
(c) The facility identified on the Disclosure Schedule is the
only real property and improvements leased by Seller. Such facility (i) is not
subject to any leases or tenancies of any kind, except for Seller's leasehold
interests; (ii) has direct access to and from a public road or street; (iii) is
used in a manner which is permitted under applicable Laws, including zoning
ordinances and environmental Laws; (iv) is in the peaceful possession of Seller;
and (v) is served by all water, sewer, electrical, telephone, drainage and other
utilities required for the Business. Seller owns no real estate or other real
property. Seller has not, and to Seller's knowledge no third party has, stored
or discharged on such premises any hazardous wastes or substances in any amount
or manner which would require clean up, other remediation or reporting under
applicable environmental Laws.
5.9 Absence of Certain Changes or Events. Since January 1, 2002, the
Business has been conducted in the ordinary course, and, without limiting the
foregoing, (a) there has not been any material adverse change in the Business,
(b) there has not been any damage, destruction or loss (whether or not covered
by insurance) which materially and adversely affects the Purchased Assets or the
Business, (c) no agreement with a Customer has been terminated or expired, and
(d) Seller has not entered into any material transactions or agreements with
Customers outside the ordinary course of business.
5.10 Contracts and Commitments. Each of the Assumed Contracts is valid,
binding, enforceable (subject to the effects of bankruptcy and insolvency laws)
and is in full force and effect. Seller is not and, to Seller's knowledge, no
other party is in material breach or material default under any Assumed Contract
and, to Seller's knowledge, no event has occurred which
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constitutes, or with the lapse of time or the giving of notice, or both, would
constitute such a material breach or material default thereunder. Except for the
Assumed Contracts or as set forth in the Disclosure Schedule, Seller is not a
party to any other agreement or commitment which is material to the Business or
the Purchased Assets. Xxxxxxx has not personally guarantied performance, payment
or collection of any material contract of Seller.
5.11 Litigation and Other Proceedings. No action, suit, proceeding or
investigation has been commenced by or against Seller since January 1, 2000, or
is currently pending against the Seller or, to Seller's knowledge, is threatened
against Seller, which involves the Business, the Purchased Assets or the
consummation by Seller of the Subject Transactions, before any court,
arbitrator, governmental authority or agency. Seller is not subject to any
judgment or decree of a court of competent jurisdiction which would limit or
restrict Seller's right to enter into and carry out this Agreement or to
consummate the Subject Transactions, or which would otherwise adversely affect
the Business or Purchased Assets.
5.12 Compliance with Law. Seller is in material compliance with all
Laws, and has conducted the Business in material compliance with all Laws.
Seller is not bound by or subject to any order, judgment or decree of any court
or arbitral body affecting or limiting the scope of its operations.
5.13 Brokerage. Except as set forth on the Disclosure Schedule, Seller
has not employed or retained any broker or finder or incurred any liability for
any brokerage fees, commissions or finder's fees in connection with the
transactions contemplated by this Agreement.
5.14 Financial Statements. The financial statements of Seller,
consisting of balance sheets as of December 31, 2001 and March 31, 2002, and
income statements for each of the years ended December 31, 2000 and 2001, and
each of the quarters ended March 31, 2001 and 2002, as set forth on the
Disclosure Schedule, were prepared in accordance with generally accepted
accounting principles (subject, in the case of interim statements, to year-end
adjustments and the absence of footnotes), and fairly present, in all material
respects, the financial position of Seller as of the dates indicated and the
results of its operations for the periods then ended.
5.15 Bank Accounts. The Disclosure Schedule includes a complete list,
including account numbers and authorized signatories, of bank accounts which
include Cash.
5.16 Full Disclosure. No representation or warranty by Seller in this
Agreement and no statement of Seller contained in any certificate, Exhibit, the
Disclosure Schedule or other writing furnished to Buyer by Seller pursuant to
this Agreement, contains any untrue statement of a material fact or omits to
state any material fact necessary to make the statements herein or therein not
misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
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6.1 Organization. Buyer is a corporation validly existing and in active
status under the Laws of the State of Wisconsin, and has all requisite corporate
power and authority to carry on its business as it is now being conducted and to
own and lease its properties and assets.
6.2 Authorization, Validity, Etc. Buyer has all requisite corporate
power and corporate authority to enter into this Agreement and to carry out the
Subject Transactions. Buyer's Board of Directors has taken all action required
by Law, its charter documents or otherwise required to be taken by it to
authorize the execution and delivery by Buyer of this Agreement and consummation
of the Subject Transactions. No other corporate action is required to be taken
by Buyer in connection with the execution or delivery by Buyer of this Agreement
or the consummation by Buyer of the Subject Transactions. This Agreement is a
valid and binding agreement of Buyer enforceable against it in accordance with
its terms.
6.3 Compliance. Neither the execution or delivery by Buyer of this
Agreement nor the consummation by Buyer of the Subject Transactions will result
in any violation of or be in conflict with, or constitute a default under, any
provision of its articles of incorporation or bylaws, or any Law or material
agreement to which Buyer is a party or which is applicable to Buyer.
6.4 Consents and Approvals. No consent, approval or authorization of,
or declaration, filing or registration with, any governmental or regulatory
authority or agency, whether federal, state or local, is required of Buyer in
connection with the execution or delivery by Buyer of this Agreement or the
consummation by Buyer of any of the Subject Transactions.
6.5 Litigation and Other Proceedings. No action, suit, proceeding or
investigation is pending against Buyer or to Buyer's knowledge is threatened
against Buyer which would adversely affect the consummation by Buyer of the
Subject Transactions, before any court, arbitrator, governmental authority or
agency.
6.6 Brokerage. Buyer has not employed or retained any broker or finder
or incurred any liability for any brokerage fees, commissions or finder's fees
in connection with the transactions contemplated by this Agreement.
ARTICLE VII
COVENANTS
7.1 Full Access. From the date hereof until the Closing Date, during
reasonable times, during normal business hours and upon reasonable advance
notice, Seller will give Buyer and its agents, accountants, attorneys and
representatives access to, and will cooperate as Buyer may request in making
available to it, all books, records, Customers, suppliers, employees, financial
information and other information directly and reasonably relating to the
Purchased Assets or the operation of the Business; provided, however, that Buyer
may not communicate with Seller's suppliers, Customers and other persons having
business dealings with Seller relating to the Purchasing Assets until Buyer has
consulted and coordinated with, and been authorized by, Seller on such
communications. Buyer is also entitled, at its own expense, to conduct
inspections, appraisals and environmental reviews of the Purchased Assets, and
to verify the conclusions in the reports of its consultants.
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7.2 Publicity. Each party will consult with the other party prior to
issuing any press release or otherwise making any public statement with respect
to the transactions contemplated by this Agreement, and will not issue any such
release or make any such statement over the reasonable objection of the other
party, except as required by law. Notwithstanding the above, Buyer may issue a
press release pursuant to the requirements of applicable securities Laws and the
rules of The Nasdaq Stock Market.
7.3 Conduct of Business Pending the Closing. From the date hereof to
the Closing, and except as otherwise expressly consented to or approved by Buyer
in writing:
(a) Seller will not, except in the ordinary course of business
consistent with past practice, engage in any transaction or activity or enter
into any agreement, lease, license or commitment, which affects Seller, the
Purchased Assets or the Business, or any negotiations or other discussions
relating thereto;
(b) Seller will maintain all of its property, casualty,
liability and other insurance in effect as of the date hereof through the
Closing Date;
(c) Seller will use, operate, maintain and repair the
Equipment in a normal business manner consistent with past practice;
(d) Seller will use its reasonable best efforts to preserve
the organization of the Business intact and to preserve for Buyer the present
relationships of Seller with the Customers and others having business relations
with Seller;
(e) Seller will maintain in effect the Assumed Contracts,
other than those which expire or terminate in accordance with their terms; and
(f) Seller will not take or fail to take any action which
would create a breach of the representations or warranties of Seller set forth
in Article V hereof, or which could reasonably have a material adverse effect on
the Business or the Purchased Assets.
7.4 Further Assurances. Following the Closing, each party will execute
such further documents, and perform such further acts as may be reasonably
necessary for Seller to sell, transfer, assign, convey and deliver the Purchased
Assets to Buyer on the terms herein contained, and as may be reasonably
necessary for Buyer to assume the Assumed Liabilities on the terms herein
contained, and to otherwise consummate the Subject Transactions in accordance
with the terms hereof.
7.5 Accounts. If, following the Closing, any payment of any Accounts
purchased by Buyer is made to Seller, Seller will promptly remit such payment to
Buyer and, if such payment is in the form of a check, such check shall be
endorsed by Seller to Buyer.
7.6 Consents; Liens. Seller shall obtain all consents, approvals and
authorizations of third parties and governmental and regulatory authorities
necessary to sell the Purchased Assets to Buyer and assign the Assumed Contracts
to, and have the Assumed Contracts assumed by, Buyer. Seller shall obtain, at or
prior to the Closing Date, terminations or releases of all Liens on the
Purchased Assets.
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ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF BUYER
Each and every obligation of Buyer under this Agreement to be performed
at or before the Closing by Buyer shall be subject to the satisfaction, at or
before the Closing, of each of the following conditions, unless waived in
writing by Buyer:
8.1 Representations and Warranties True. Each representation and
warranty of Seller contained in Article V hereof and in any certificate and
other document delivered or to be delivered by Seller pursuant hereto or in
connection with the Subject Transactions, shall be true and accurate in all
material respects as of the date when made and as of the Closing as though such
representation and warranty were made by Seller on the Closing Date.
8.2 Performance. Seller shall have performed and complied with each
covenant and obligation required by this Agreement to be performed or complied
with by Seller at or prior to the Closing.
8.3 No Proceeding or Litigation. As of the Closing, no suit, action,
investigation, inquiry or other proceeding by or before any court or
governmental body or other regulatory or administrative agency or commission
requesting or looking toward an order, judgment or decree shall be threatened,
instituted or pending which questions the validity or legality of this Agreement
or the consummation of the Subject Transactions.
8.4 No Injunction. As of the Closing, there shall not be any effective
injunction, writ, preliminary restraining order or any order of any nature
issued by a court of competent jurisdiction directing that the Subject
Transactions provided for herein or any of them not be consummated as so
provided or imposing any condition on the consummation of any of the Subject
Transactions.
8.5 No Material Adverse Change; No Material Damage or Loss. During the
period from the date of this Agreement to the Closing Date, there shall not have
occurred or been discovered, and there shall not exist on the Closing Date, any
material adverse change to the Business or the Purchased Assets, any material
damage or loss to the Purchased Assets, or any condition or fact which is
reasonably likely to be materially adverse to the Purchased Assets or the
Business.
8.6 Deliveries At or Prior to Closing. Seller shall have delivered or
caused to be delivered the following to Buyer at or prior to the Closing, all in
form reasonably satisfactory to Buyer's counsel:
(a) Copies of resolutions of Seller's Board of Directors and
sole shareholder (certified by Seller's secretary) authorizing the execution,
delivery and performance by Seller of this Agreement and the consummation by
Seller of the Subject Transactions;
(b) A closing certificate of Seller's President certifying the
fulfillment of the conditions set forth in Sections 8.1 and 8.2;
12
(c) Duly authorized partial release statements for all UCC
financing statements of record which show Seller as debtor and which affect the
Purchased Assets, and evidence that all Liens on the Purchased Assets have been
released;
(d) The Non-Competition Agreements, respectively executed by
Seller and Xxxxxxx;
(e) The Employment Agreement, executed by Xxxxxxx;
(f) The Xxxx of Sale, executed by Seller;
(g) Documentation satisfactory to Buyer and its counsel
regarding the transfer of the Intellectual Property to Buyer;
(h) Documentation satisfactory to Buyer and its counsel to
transfer any Cash and any related bank accounts, and provide access thereto, to
Buyer;
(i) Originally executed copies of all consents needed from
Xxxxx Fargo and from other third parties relating to the assignment to Buyer of
the Assumed Contracts; and
(j) All other instruments and documents required by this
Agreement to be delivered by Seller to Buyer, and such other instruments and
documents which Buyer or its counsel may reasonably request not inconsistent
with the provisions hereof.
8.7 Due Diligence. Buyer shall have completed its due diligence review
and investigation of Seller, including the Purchased Assets and the Business,
and shall have been reasonably satisfied with the results thereof. To the extent
that Seller has requested that Buyer defer certain due diligence (such as
discussions with Customers or employees) until after execution of this
Agreement, the results of such due diligence reviews shall be satisfactory to
Buyer in its sole discretion.
8.8 Name Change. Seller shall have delivered an amendment to its
articles of incorporation changing its name so that it is not confusingly
similar to "Paragon Direct" or articles of dissolution, which amendment or
articles would be filed promptly following the Closing.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF SELLER AND XXXXXXX
Each and every obligation of Seller under this Agreement to be
performed at or before the Closing by Seller shall be subject to the
satisfaction, at or before the Closing, of each of the following conditions,
unless waived in writing by Seller:
9.1 Representations and Warranties True. Each representation and
warranty of Buyer contained in Article VI hereof and in any certificate or other
document delivered or to be delivered by Buyer pursuant hereto or in connection
with the Subject Transactions, shall be true and accurate in all material
respects as of the date when made and as of the Closing as though such
representation and warranty were made by Buyer on the Closing Date.
13
9.2 Performance. Buyer shall have performed and complied with each
covenant and obligation required by this Agreement to be performed or complied
with by Buyer at or prior to the Closing.
9.3 No Proceeding or Litigation. As of the Closing, no suit, action,
investigation, inquiry or other proceeding by or before any court or
governmental body or other regulatory or administrative agency or commission
requesting or looking toward an order, judgment or decree shall be threatened,
instituted or pending against Buyer which questions the validity or legality of
this Agreement or the Subject Transactions.
9.4 No Injunction. As of the Closing, there shall not be any effective
injunction, writ, preliminary restraining order or any order of any nature
issued by a court of competent jurisdiction directing that the Subject
Transactions provided for herein or any of them not be consummated as so
provided or imposing any condition on the consummation of any of the Subject
Transactions.
9.5 Deliveries At or Prior to Closing. Buyer shall have delivered or
caused to be delivered the following to Seller at or prior to the Closing, all
in form reasonably satisfactory to Seller's counsel:
(a) A closing certificate of the President or a Vice President
of Buyer certifying the fulfillment of the conditions set forth in Sections 9.1
and 9.2;
(b) The Non-Competition Agreements, executed by Buyer;
(c) The Employment Agreement, executed by Buyer;
(d) The Xxxx of Sale, executed by Buyer;
(e) Payment by Buyer of the amount due at Closing as set forth
in Section 4.1; and
(f) All other instruments and documents required by this
Agreement to be delivered by Buyer to Seller, and such other instruments and
documents which Seller or its counsel may reasonably request not inconsistent
with the provisions hereof.
ARTICLE X
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
10.1 General. From and after the Closing, the parties shall indemnify
each other as provided in this Article X. The party or parties seeking
indemnification are sometimes referred to in this Article X as the "Indemnified
Party" and the party or parties against which indemnification is sought are
sometimes referred to as the "Indemnifying Party."
10.2 Survival. All representations and warranties of a party contained
in this Agreement or in any certificate or other document delivered in
connection with the Subject Transactions shall survive the Closing Date
(regardless of any investigation by any other party to this Agreement) for a
period of one (1) year thereafter, except that the representations and
14
warranties set forth in Sections 5.1 through 5.5 shall survive for the
applicable statute of limitations.
10.3 Indemnification Covenants of Seller. Seller indemnifies Buyer for
and holds Buyer harmless from and against any and all losses, damages, costs,
expenses, liabilities, obligations and claims of any kind (collectively
"Losses"), including without limitation, reasonable attorneys' fees and
disbursements, sustained or incurred by Buyer as a result of, arising out of or
incidental to:
(a) Any breach or inaccuracy of any representation or warranty
made by Seller to Buyer in this Agreement or in any certificate or other
document delivered by Seller to the Buyer in connection with the Subject
Transactions;
(b) Any failure of Seller to comply with, or any breach or
nonfulfillment by Seller of, any covenant of Seller set forth in this Agreement,
in Seller's Non-Competition Agreement, or in any certificate or other document
delivered by Seller to Buyer in connection with the Subject Transactions;
(c) Except for the Assumed Liabilities, any actual or alleged
liability or obligation of Seller or arising out of Seller's ownership and
operation of Purchased Assets or conduct of the Business prior to the Closing
Date;
(d) Non-compliance with any applicable bulk sales or transfer
laws; or
(e) Any suit, action or other proceeding brought by any person
and arising out of or in any way related to any of the matters referred to in
Sections 10.3(a), 10.3(b), 10.3(c) or 10.3(d) hereof.
References to Buyer in this Section 10.3 includes Buyer's shareholders,
officers, employees, directors, affiliates, agents and successors.
10.4 Indemnification Covenants of Buyer. Buyer will indemnify Seller
for and hold Seller harmless from and against any and all losses, damages,
costs, expenses, liabilities, obligations and claims of any kind, including
without limitation reasonable attorneys' fees and disbursements, sustained or
incurred by Seller as a result of, arising out of or incidental to:
(a) Any breach or inaccuracy of any representation or warranty
made by Buyer in this Agreement or in any certificate or other document
delivered by Buyer to Seller in connection with the Subject Transactions;
(b) Any failure of Buyer to comply with, or any breach or
nonfulfillment by Buyer of, any covenant of Buyer set forth in this Agreement or
in any certificate or other document delivered by Buyer to Seller in connection
with the Subject Transactions;
(c) Any failure of Buyer to timely pay, perform or discharge
any Assumed Liability; or
15
(d) Any suit, action or other proceeding brought by any person
and arising out of or in any way related to any of the matters referred to in
Section 10.4(a), 10.4(b) or 10.4(c) hereof.
References to Seller in this Section 10.4 include Seller's shareholders,
officers, employees, directors, affiliates, agents and successors.
10.5 Claims for Indemnification.
(a) Promptly upon the Indemnified Party obtaining knowledge of
any facts causing it to believe that it has a claim for indemnification against
the Indemnifying Party hereunder, the Indemnified Party shall give written
notice of such claim to the Indemnifying Party. Such written notice shall set
forth the nature and (to the extent then known) the amount of the claim.
Notwithstanding the foregoing, the Indemnified Party's right of indemnification
hereunder shall not be affected by its failure to give or by its delay in giving
such notice unless, and then only to the extent that, the rights of the
Indemnifying Party are materially prejudiced as a result of such failure or
delay.
(b) The Indemnified Party shall tender to the Indemnifying
Party the defense of any claim, suit, proceeding, action or assessment brought
by any third party (hereinafter "Third Party Claim"). The Indemnifying Party
shall have the right at its expense to assume the defense thereof using counsel
reasonably acceptable to the Indemnified Party. The Indemnifying Party shall
elect to assume the defense of any such Third Party Claim by notifying the
Indemnified Party within 10 days following notice from the Indemnifying Party.
Failure by the Indemnifying Party to assume such defense shall be deemed a
waiver by the Indemnifying Party of its right to so defend. If the Indemnifying
Party assumes such defense, the obligations of the Indemnifying Party hereunder
as to such Third Party Claim shall include taking all steps reasonably necessary
in the defense or settlement thereof. Except with the written consent of the
Indemnified Party, the Indemnifying Party, in the defense of any such Third
Party Claim, shall not consent to the entry of any judgment against or adversely
affecting the Indemnified Party (other than a judgment of dismissal on the
merits and without costs) or enter into any settlement unless such settlement
provides that the Indemnified Party is fully released from all liability by the
third party as to such Third Party Claim. The Indemnified Party shall have the
right to participate, at its expense, in the defense of any such Third Party
Claim.
(c) If the Indemnifying Party does not assume the defense of
any Third Party Claim as provided herein, the Indemnified Party may defend
against such Third Party Claim in such manner that the Indemnified Party deems
advisable or appropriate and may settle such Third Party Claim or consent to the
entry of judgment with respect thereto upon such terms as it deems advisable or
appropriate, and in such event the Indemnifying Party shall promptly reimburse
the Indemnified Party for the amount of such settlement or judgment and for any
and all amounts recoverable pursuant to Section 10.3 or 10.4, including all
damages, costs and expenses sustained or incurred by the Indemnified Party which
result from, arise out of or are incidental to the defense or settlement of such
Third Party Claim.
(d) Subject to the provisions below, Buyer shall have the
right, upon written notice to Seller, to set off the amount of any
indemnification claims it has pursuant to Section
16
10.3 hereof from any other payments due to Seller (including the payments set
forth in Article IV hereof). Seller retains all rights to challenge any such
offset.
(i) In the event the set off relates to a Third Party
Claim, Buyer may retain such amount until such Third Party Claim is resolved, at
which time Buyer may retain an amount equaling its Losses and shall promptly pay
to Seller any amount which may be remaining after in excess of its related
Losses.
(ii) As to any claim of indemnity not relating to a
Third Party Claim or any disagreement as to Losses under (i) above, the Buyer
and Seller shall negotiate in good faith to resolve any such claim for a period
of 15 business days after Buyer's notice to Seller. In the event that the
parties have not been able to resolve any dispute within that period, Buyer
shall then deposit such amount as is in dispute with a mutually acceptable
escrow agent, and Seller and Buyer shall settle such dispute through an
expedited mediation or arbitration procedure which is mutually agreeable.
ARTICLE XI
TERMINATION; REMEDIES
11.1 Right to Terminate. Anything to the contrary herein
notwithstanding, this Agreement and the transactions contemplated hereby may be
terminated at any time after June 15, 2002, if the Closing has not occurred by
such date, time being of the essence:
(a) By the mutual written agreement of the parties;
(b) By Buyer, if any condition set forth in Article VIII has
not been satisfied; or
(c) By Seller, if any condition set forth in Article IX has
not been satisfied.
11.2 Rights on Termination; Waiver. If this Agreement is terminated
pursuant to Section 11.1, all further obligations of the parties under this
Agreement shall terminate, except for those contained in Section 12.1 and this
Section 11.2. In the event of termination pursuant to Section 11.1(b) or
11.1(c), the terminating party shall be entitled to all remedies available at
law or in equity.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Fees and Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, all fees and expenses incurred by a party in
connection with this Agreement shall be borne by such party, including, without
limitation, all fees of its counsel, consultants and accountants; provided,
however, that Seller shall be liable for and pay all personal property,
transfer, sales and use taxes incurred in connection with the purchase and sale
of the Purchased Assets contemplated by this Agreement.
12.2 Notices. Each notice, request, demand or other communication by a
party to another party required or permitted by this Agreement shall be in
writing and shall be personally
17
delivered, sent by U.S. certified mail, return receipt requested (postage
prepaid), by overnight commercial courier (charges prepaid), or sent by
facsimile transmission (but each such facsimile transmission shall be confirmed
by sending a copy thereof to the other party by certified mail or commercial
courier as provided herein no later than the following business day), addressed
to the address of the receiving party set forth below or to such other address
as such party shall have communicated to the other parties in accordance with
this Section. Any notice shall be deemed to have been given when personally
delivered, on the date of sending when sent by facsimile transmission, on the
second business day following the date of sending when sent by certified mail or
on the first business day following the date of sending when sent by overnight
commercial courier.
(a) If to Buyer, to: Outlook Group Corp.
Attention: President
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Fax: (000) 000-0000
(b) If to Seller, to: Xxxxx X. Xxxxxxx
000 Xxxxxxxx Xx.
Xxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
with a copy to: Xxxxxx X. Xxx, Esq.
Xxxxxxxx Xxxxxxx Van Deuren S.C.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
12.3 Entire Agreement. This Agreement, including the Exhibits hereto,
the Disclosure Schedule (which constitutes a part of this Agreement as if set
forth in full herein) and the other documents and certificates delivered
pursuant to the terms hereof, sets forth the entire agreement and understanding
of the parties hereto in respect of the subject matter contained herein and
therein, and supersedes all other agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, partner, employee or representative of any party hereto.
12.4 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted assigns,
but neither this Agreement nor any of the rights or obligations hereunder shall
be assigned by any party hereto without the prior written consent of the other
parties. Notwithstanding the above, Buyer may assign its rights and delegate its
obligations under this Agreement without Seller's consent to a wholly-owned
18
subsidiary of Buyer or in connection with the sale of the stock or assets of
Buyer or a subsidiary of Buyer or a merger of Buyer or a subsidiary of Buyer
with another entity.
12.5 Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person or entity other than the parties hereto and
their successors or permitted assigns, any rights or remedies under or by reason
of this Agreement.
12.6 Severability. The invalidity of any provision of this Agreement or
portion of a provision shall not affect the validity of any other provision of
this Agreement or the remaining portion of the applicable provision.
12.7 Employees. Buyer agrees to extend offers of employment to
substantially all of Seller's employees on the Closing Date. The foregoing
provision does not constitute an offer to employ any in particular person,
create any right of continued employment, or limit Buyer's right to determine
appropriate compensation and benefits.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the date first above written.
OUTLOOK GROUP CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
PARAGON DIRECT, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx, President
20
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS................................................................................1
1.1 Accounts.......................................................................................1
1.2 Assumed Contracts..............................................................................1
1.3 Assumed Liabilities............................................................................1
1.4 Xxxx of Sale...................................................................................1
1.5 Business.......................................................................................1
1.6 Cap............................................................................................2
1.7 Cash...........................................................................................2
1.8 Closing........................................................................................2
1.9 Closing Date...................................................................................2
1.10 Closing Balance Sheet..........................................................................2
1.11 Current Assets.................................................................................2
1.12 Customers......................................................................................2
1.13 Disclosure Schedule............................................................................2
1.14 Effective Time.................................................................................2
1.15 Employment Agreement...........................................................................2
1.16 Equipment......................................................................................2
1.17 Excluded Assets................................................................................3
1.18 Indemnified Party; Indemnifying Party..........................................................3
1.19 Intellectual Property..........................................................................3
1.20 Knowledge......................................................................................3
1.21 Law............................................................................................3
1.22 Lien...........................................................................................3
1.23 Non-Competition Agreements.....................................................................3
1.24 Purchase Price.................................................................................3
1.25 Purchased Assets...............................................................................3
1.26 Xxxxxxx........................................................................................4
1.27 Special Accounts...............................................................................4
1.28 Subject Transactions...........................................................................4
1.29 Third Party Claim..............................................................................4
1.30 Xxxxx Fargo....................................................................................4
ARTICLE II PURCHASE AND SALE..........................................................................4
ARTICLE III ASSUMPTION OF LIABILITIES..................................................................4
ARTICLE IV PURCHASE PRICE; ADJUSTMENTS................................................................4
4.1 Amount; Payment Schedule.......................................................................4
4.2 Lists of Purchased Assets; Closing Balance Sheet...............................................6
4.3 Allocation of Purchase Price...................................................................6
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER...................................................6
5.1 Organization...................................................................................6
5.2 Authorization, Validity, Etc...................................................................6
5.3 Compliance.....................................................................................7
i
TABLE OF CONTENTS
(continued)
PAGE
----
5.4 Consents and Approvals.........................................................................7
5.5 Good Title.....................................................................................7
5.6 Accounts.......................................................................................7
5.7 Intellectual Property..........................................................................7
5.8 Condition of Equipment; Location of Assets; Facility...........................................8
5.9 Absence of Certain Changes or Events...........................................................8
5.10 Contracts and Commitments......................................................................8
5.11 Litigation and Other Proceedings...............................................................9
5.12 Compliance with Law............................................................................9
5.13 Brokerage......................................................................................9
5.14 Financial Statements...........................................................................9
5.15 Bank Accounts..................................................................................9
5.16 Full Disclosure................................................................................9
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER....................................................9
6.1 Organization..................................................................................10
6.2 Authorization, Validity, Etc..................................................................10
6.3 Compliance....................................................................................10
6.4 Consents and Approvals........................................................................10
6.5 Litigation and Other Proceedings..............................................................10
6.6 Brokerage.....................................................................................10
ARTICLE VII COVENANTS.................................................................................10
7.1 Full Access...................................................................................10
7.2 Publicity.....................................................................................11
7.3 Conduct of Business Pending the Closing.......................................................11
7.4 Further Assurances............................................................................11
7.5 Accounts......................................................................................11
7.6 Consents; Liens...............................................................................11
ARTICLE VIII CONDITIONS TO OBLIGATIONS OF BUYER........................................................12
8.1 Representations and Warranties True...........................................................12
8.2 Performance...................................................................................12
8.3 No Proceeding or Litigation...................................................................12
8.4 No Injunction.................................................................................12
8.5 No Material Adverse Change; No Material Damage or Loss........................................12
8.6 Deliveries At or Prior to Closing.............................................................12
8.7 Due Diligence.................................................................................13
8.8 Name Change...................................................................................13
ARTICLE IX CONDITIONS TO OBLIGATIONS OF SELLER AND XXXXXXX...........................................13
9.1 Representations and Warranties True...........................................................13
9.2 Performance...................................................................................14
9.3 No Proceeding or Litigation...................................................................14
ii
TABLE OF CONTENTS
(continued)
PAGE
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9.4 No Injunction.................................................................................14
9.5 Deliveries At or Prior to Closing.............................................................14
ARTICLE X SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION...............................14
10.1 General.......................................................................................14
10.2 Survival......................................................................................14
10.3 Indemnification Covenants of Seller...........................................................15
10.4 Indemnification Covenants of Buyer............................................................15
10.5 Claims for Indemnification....................................................................16
ARTICLE XI TERMINATION; REMEDIES.....................................................................17
11.1 Right to Terminate............................................................................17
11.2 Rights on Termination; Waiver.................................................................17
ARTICLE XII MISCELLANEOUS PROVISIONS..................................................................17
12.1 Fees and Expenses.............................................................................17
12.2 Notices.......................................................................................17
12.3 Entire Agreement..............................................................................18
12.4 Successors and Assigns........................................................................18
12.5 Third Parties.................................................................................19
12.6 Severability..................................................................................19
12.7 Employees.....................................................................................19
iii
LIST OF EXHIBITS
EXHIBIT DESCRIPTION
------- -----------
A Xxxx of Sale
B Non-Competition Agreement--Seller
C Non-Competition Agreement--Xxxxxxx
LIST OF SCHEDULES
SCHEDULE DESCRIPTION
-------- -----------
1.2 Assumed Contracts
1.12 Customers
1.16 Equipment
1.27 Special Accounts
LIST OF DISCLOSURE SCHEDULE ITEMS
SCHEDULE DESCRIPTION
-------- -----------
5.1 Xxxxx Fargo Rights
5.5 Security Interests
5.6 Accounts
5.7 Intellectual Property
5.8 Location of Equipment; Facility
5.10 Other Contracts
5.14 Financial Statements
5.15 Bank Accounts
