Dated April 25, 2008 ORION ETHANOL, INC. (“Seller”) and MERCY, LLC (the “Buyer”) UNIT PURCHASE AGREEMENT Shook Hardy and Bacon 2555 Grand Blvd Kansas City, Missouri 64108-2613 Telephone 816-474-6550 Facsimile 816-421-5547 Attn: Patrick Henderson
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ORION
ETHANOL, INC. (“Seller”)
and
MERCY,
LLC (the “Buyer”)
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0000
Xxxxx Xxxx
Xxxxxx
Xxxx, Xxxxxxxx 00000-0000
Attn:
Xxxxxxx Xxxxxxxxx
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(1)
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ORION
ETHANOL, INC.,
a
Nevada corporation, a Nevada corporation (the “Seller”);
and
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(2)
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MERCY,
LLC ,
a
Kansas limited liability company (the “Buyer”).
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WITNESSETH
Whereas:
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GATEWAY
HOLDCO,
L.L.C., a
Kansas limited liability company (the “Company”)
was formed by the filing of Articles of Organization on August 29,
2005 as
a holding company for the construction and operation of a dry-mill
ethanol
plan in Xxxxx County (the “Plant”)
through its subsidiary, Gateway Ethanol, L.L.C. ( “Gateway
Ethanol”);
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(B)
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The
Company has issued a capital call for the infusion of additional
capital
to assist the Plant in becoming operational (the “Capital
Call”),
and Seller intends to use the proceeds from the sale of the Units
pursuant
to this Agreement for purposes of fulfilling its obligations under
the
Capital Call;
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(C)
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Seller
wishes to sell 4,172 Class A Units (the “Units”)
to the Buyer, and the Buyer wishes to purchase the Units from the
Seller,
on the terms and subject to the conditions and for the consideration
described in this Agreement; and
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(D)
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The
Seller has complied with or the Company has waived any notice or
other
requirement of the Operating Agreement of the Company (the “Operating
Agreement”)
regarding the transactions contemplated by this Agreement. Capitalized
terms used but not defined in this Agreement shall have the meaning
assigned to them in the Operating Agreement.
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Now,
therefore,
in
consideration of the mutual promises and covenants set forth below and for
other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
ARTICLE
I
Definitions
Section
1.1 Definition
of Certain Terms
The
following terms, as used herein, have the following meanings:
“Affiliate”
of
a
Person means a Person that directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
the
first Person. “Control” (including the terms “controlled by” and “under common
control with”) means the possession, directly or indirectly, of the power to
direct or cause the direction of the management policies of a Person, whether
through the ownership of voting securities, by contract or credit arrangement,
as trustee or executor, or otherwise.
“Agreement”
means
this Unit Purchase Agreement, including the Schedules and Exhibits
hereto.
“Ancillary
Agreements”
means,
collectively, the Indemnification and Hold Harmless Agreement referred to in
Section 2.2(f) and the minutes of the Seller’s board meetings referred to in
Section 2.2(d).
“Business”
means
the business of building and organizing an ethanol production facility as
conducted by the Company.
“Business
Day”
means
a
day other than a Saturday, Sunday or other day on which commercial banks in
Pratt, Kansas are authorized or required to close.
“Buyer”
has
the
meaning given in the preamble of this Agreement.
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“Buyer
Indemnitees”
has
the
meaning given in Section 9.1.
“Cap”
has
the
meaning given in Section 9.3(a).
“Closing”
has
the
meaning given in Section 2.2.
“Closing
Date”
has
the
meaning given in Section 2.2.
“Code”
means
the Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder.
“Company”
has
the
meaning given in the recitals to this Agreement.
“Confidential
Information”
means
any information concerning the business and affairs of the Company that is
not
already generally available to the public.
“Consent”
means
any consent, approval, authorization, novation, waiver, permit, grant,
franchise, concession, agreement, license, exemption or order of, registration,
certificate, declaration or filing with, or report or notice to, any Person,
including any Governmental Authority.
“Contract”
means
any contract, agreement, arrangement, purchase order, note, mortgage, indenture,
license, lease, sublease, plan, commitment or other instrument, whether written
or oral.
“Purchase
Price”
has
the
meaning given in Section 2.3(d).
“Governmental
Approval”
means
any Consent of, or with, any Governmental Authority.
“Governmental
Authority”
means
any international, supranational or national government, any state, provincial,
local or other political subdivision thereof, any entity, authority or body
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including any government authority,
agency, department, board, commission or instrumentality of the United States
or
a foreign nation or jurisdiction, any State of the United States or any
political subdivision of any thereof, any court, tribunal or arbitrator, or
any
self-regulatory organization.
“Indemnified
Party”
has
the
meaning given in Section 9.5(a).
“Indemnifying
Party”
has
the
meaning given in Section 9.5(a).
“Units”
has
the
meaning given in the recitals of this Agreement.
“Knowledge”
of
any
Person means the actual knowledge of such Person (and in the case of any Person
that is not an individual, such Person’s directors or executive officers) after
reasonable inquiry.
“Law”
means
any federal, state, local, foreign, international or supranational law
(including common law), statute, treaty, ordinance, rule, regulation, Order,
code, governmental restriction or other legally binding
requirement.
“Liabilities”
means
any and all debts, losses, liabilities, claims, damages, fines, costs,
royalties, proceedings, deficiencies or obligations of any nature, whether
known
or unknown, absolute, accrued, contingent or otherwise and whether due or to
become due, and any out-of-pocket costs and expenses (including attorneys’,
accountants’ or other fees and expenses).
“Lien”
means
any mortgage, pledge, hypothecation, right of others, claim, charge, security
interest, encumbrance, adverse claim or interest, easement, covenant,
encroachment, servitude, option, lien, put or call right, right of first offer
or refusal, voting right or other restrictions or limitations of any nature
whatsoever.
“Litigation”
means
any action, cause of action, claim, cease and desist letter, demand, suit,
proceeding, arbitration, citation, summons, subpoena or investigation of any
nature, civil, criminal, regulatory or otherwise, in law or in
equity.
“Losses”
has
the
meaning given in Section 9.1.
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“Material
Adverse Effect”
means
(i) a materially adverse effect on the business, assets, liabilities or the
results of operations or condition (financial or otherwise) of the Company,
taken as a whole, (ii) any material impairment of the ability of any party
to
perform its obligations under this Agreement or (iii) any effect that prevents
or materially delays the consummation of any of the transactions contemplated
by
this Agreement.
“Notice”
has
the
meaning given in Section 10.2.
“Operating
Agreement”
has
the
meaning given in the recitals of this Agreement.
“Order”
means
any judgment, order, administrative order, writ, stipulation, injunction
(whether permanent or temporary), award, decree or similar legal restraint
of,
or binding settlement having the same effect with, any Governmental
Authority.
“Ordinary
Course”
or
“Ordinary
Course of Business”
means
the conduct of the Business in accordance with the Company normal day-to-day
customs, practices and procedures, consistent with past practice.
“Person”
means
any natural person, firm, limited liability company, general or limited
partnership, association, corporation, company, joint venture, trust,
Governmental Authority or other entity.
“Project”
has the
meaning given in the recitals of this Agreement.
“Property”
has the
meaning given in the recitals of this Agreement..
“Release”
means
any releasing, disposing, discharging, injecting, spilling, leaking, leaching,
pumping, dumping, emitting, escaping, emptying, seeping, dispersal, migration,
transporting, placing and the like, including the moving of any materials
through, into or upon, any land, soil, surface water, groundwater or air, or
otherwise entering into the indoor or outdoor environment.
“Remedial
Action”
means
all actions required to (i) clean up, remove, treat or in any other way
remediate any Hazardous Substances; (ii) prevent the release of Hazardous
Substances so that they do not migrate or endanger or threaten to endanger
public health or welfare or the environment or (iii) perform studies,
investigations and care related to any such Hazardous Substances.
“Representatives”
means,
with respect to any Person, such Person’s accountants, counsel, financial and
other advisors, representatives, consultants, directors, officers, employees,
stockholders, partners, members and agents.
“Seller”
has
the
meaning given in the preamble of this Agreement.
“Seller’s
Indemnitees”
has
the
meaning given in Section 9.2.
“Tax”
means
any federal, state, local, foreign or other taxes, fees and charges of any
nature whatsoever imposed by any jurisdiction or governmental or taxing
authority thereof or therein (including income (net or gross), gross receipts,
profits, alternative or add-on minimum, franchise, license, capital, capital
stock, intangible, services, premium, mining, transfer, sales, use, ad valorem,
payroll, wage, severance, windfall profits, import, excise, custom, stamp,
withholding or estimated taxes), fees, duties, assessments, withholding or
governmental charges of any kind whatsoever, including escheat or unclaimed
property obligations (including interest, penalties, additions to tax or
additional amounts with respect to such items).
“Tax
Return”
means
any return, report, declaration, form, claim for refund or information return
or
statement relating to Taxes, including any schedule or attachment thereto,
and
including any amendment thereof.
“Third
Party Claim”
has
the
meaning given in Section 9.5(a).
“Units”
has the
meaning given in the recitals to this Agreement.
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Section
1.2 Headings;
Table of Contents
Headings
and table of contents should be ignored in construing this
Agreement.
Section
1.3 Singular,
Plural, Gender
References
to one gender include all genders and references to the singular include the
plural and vice
versa.
Section
1.4 Schedules
References
to this Agreement shall include any Exhibits, Schedules and Recitals to it
and
references to Sections, Exhibits and Schedules are to Sections of, Exhibits
to
and Schedules to, this Agreement.
Section
1.5 Information
References
to books, records or other information mean books, records or other information
in any form including paper, electronically stored data, magnetic media, film
and microfilm.
Section
1.6 Interpretation
In
this
Agreement, unless the context otherwise requires, any reference to “including”
or “in particular” shall be illustrative only and without
limitation.
ARTICLE
II
Sale
and Purchase of Units
Section
2.1 Sale
and Purchase of the Units
On
the
terms and subject to the conditions hereof, at the Closing, the Seller shall
sell the Units to the Buyer, and the Buyer shall purchase the Units from the
Seller.
Section
2.2 Closing
The
closing of the sale and purchase of the Units (the “Closing”)
shall
take place at the offices of Seller at 4:30 p.m. local time on April 25, 2008
(the “Closing
Date”).
At
the Closing:
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(a)
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the
Seller shall deliver or caused to be delivered to the Buyer, free
and
clear of any Liens, the Units, accompanied by stock powers or other
instruments of transfer duly executed in
blank;
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(b)
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the
Buyer shall pay or cause to be paid the Purchase Price Payment to
the
Seller, by wire transfer of immediately available funds to an account
designated by the Seller on the Closing
Date;
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(c)
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the
Seller and the Buyer shall each deliver all other instruments, agreements,
certificates and documents required to be delivered by such party
on or
prior to the Closing Date pursuant to this Agreement, including,
without
limitation, the Ancillary Agreements, if
any;
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(d)
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the
Seller shall deliver to the Buyer signed and approved minutes of
the
Seller’s Board meeting held on April 23, 2008 and April 25, 2008
authorizing and otherwise approving this Agreement and all Ancillary
Agreements;
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(e)
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the
Seller shall deliver in form and substance agreeable to Buyer a valid,
binding agreement indemnifying and holding harmless Xxxxx Xxxx from
any
and all liability, attorneys’ fees and expenses as a result of any
lawsuit, claim or cause of action (no matter the type of legal proceeding)
that is based in whole or in part on this Agreement or the transactions
contemplated hereunder and based on any way of Xx. Xxxx’x service as a
Director of the Seller.
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Section
2.3 Purchase
Price
In
consideration of the transfer to the Buyer of the Units by the Seller, the
Buyer
shall pay a purchase price at Closing of $2,200,000 (the “Purchase
Price Payment”)
in
cash or other immediately available funds. The parties and each of them agree
that the Purchase Price represents fair and reasonable compensation for the
Units. Seller waives any and all claims against Buyer and Xxxxx Xxxx that may
be
based, in whole or in part, directly or indirectly, on an allegation that the
Purchase Price for the Units was inadequate. Seller and Buyer agree that the
transaction is not, in whole or in part, a distribution of assets to or for
the
benefit of Buyer or Xxxxx Xxxx as a shareholder of Seller, that the transaction
is not a partial liquidation of Seller, that the transaction does not constitute
a dividend, that the transaction is not a “part sale, part gift,” and that the
transaction shall not cause Buyer to recognize taxable income. Seller and Buyer
agree to cooperate fully with each other in any Tax proceedings related to
or
arising out of this transaction.
ARTICLE
III
Representations
and Warranties of the Seller
Seller
hereby represents and warrants to the Buyer as of the date hereof and as of
the
Closing Date, as follows:
Section
3.1 Authorization;
Binding Effect
Seller
has full power and authority to execute and deliver this Agreement and each
Ancillary Agreement to which it will be a party, to perform fully its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance by
the
Seller of this Agreement, and the consummation of the transactions contemplated
hereby, have been, and on the Closing Date, the execution and delivery by the
Seller of the Ancillary Agreements to which it will be a party will have been,
duly and validly authorized by Seller. Seller has duly executed and delivered
this Agreement and, on the Closing Date, will have duly executed and delivered
each Ancillary Agreement to which it will be a party. This Agreement is and,
on
the Closing Date, each Ancillary Agreement to which Seller will be a party
will
be, a legal, valid and binding obligation of Seller, enforceable against Seller
in accordance with their respective terms.
Section
3.2 Corporate
Status
The
Company is a Nevada corporation duly incorporated, validly existing and in
good
standing under the laws of the state of Nevada with full corporate power and
authority to conduct its business and to own or lease and to operate its
properties.
Section
3.3 Title
to Units
The
Units
have been duly authorized and validly issued, are fully paid and non-assessable
and were not issued in contravention of any preemptive rights, rights of first
refusal or first offer or similar rights. Seller holds of record and owns
beneficially the Units free and clear of any Liens. Upon delivery of and payment
for the Units at the Closing, the Buyer will acquire good and valid title to
all
of the Units, free and clear of any Liens.
Section
3.4 Governmental
Approvals
The
execution, delivery and performance by Seller
and the Company of this Agreement and each of the Ancillary Agreements to which
it is a party, and the consummation of the transactions contemplated hereby
and
thereby, does not require any Governmental Approvals.
Section
3.5 No
Conflicts
The
execution, delivery and performance by Seller and the Company of this Agreement
and each of the Ancillary Agreements to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, do not and
will not conflict with, contravene, result in a violation or breach of or
default under (with or without the giving of notice or the lapse of time or
both), cause or permit the termination, modification, acceleration or vesting
of
any right or obligation or the loss of any benefit to which any such Person
is
entitled to under any Contract to which such Person or any Affiliate thereof
is
a party or by which such Person or any of its properties or assets may be bound
or affected or result in the creation of any Lien upon any of the Units and
will
not materially impair or delay the ability of the Seller or the Company to
perform their obligations under this Agreement or under any of the Ancillary
Agreements to which they are a party.
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Section
3.6 Litigation
There
is
no Litigation pending or, to the Knowledge of the Seller, threatened against
or
affecting the Seller relating to the transactions contemplated hereby or that
may have a material affect on the operations of the Seller.
Section
3.7 Brokers
and Finders
No
investment banker, broker, finder or other intermediary has been retained by
or
is authorized to act on behalf of the Seller or any of its Affiliates, and
no
such Person is entitled to any fee or commission from the Buyer or any of its
Affiliates or the Company, in connection with the transactions contemplated
by
this Agreement.
ARTICLE
IV
Representations
and Warranties of the Buyer
As
of the
date hereof and as of the Closing Date, the Buyer represents and warrants to
the
Seller as follows:
Section
4.1 Authorization;
Binding Effect
Buyer
has
full power and authority to execute and deliver this Agreement and the Ancillary
Agreements to which it is a party, to perform its obligations thereunder and
to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance by the Buyer of this Agreement, and the consummation
of
the transactions contemplated hereby, have been, and on the Closing Date, the
execution and delivery by the Buyer of the Ancillary Agreements to which it
will
be a party will have been, duly and validly authorized by Buyer. The Buyer
has
duly executed and delivered this Agreement and on the Closing Date the Buyer
will have duly executed and delivered the Ancillary Agreements to which it
is a
party. This Agreement is, and on the Closing Date, each of the Ancillary
Agreements to which the Buyer is a party will be, a legal, valid, binding and
enforceable obligation of the Buyer, enforceable against the Buyer in accordance
with their respective terms.
Section
4.2 Governmental
Approvals
The
execution, delivery and performance by the Buyer of this Agreement and each
of
the Ancillary Agreements to which it will be a party, and the consummation
of
the transactions contemplated hereby and thereby, require no Governmental
Approvals.
Section
4.3 No
Conflicts
The
execution, delivery and performance by the Buyer of this Agreement and each
of
the Ancillary Agreements to which it will be a party, and the consummation
of
the transactions contemplated hereby and thereby, do not and will not conflict
with or result in a violation or breach of or default under (with or without
the
giving of notice or the lapse of time, or both) cause or permit the termination,
modification, acceleration or vesting of any right or obligation or the loss
of
any benefit to which any such Person is entitled to under any Contract to which
such Person or any Affiliate thereof is a party or by which such Person or
any
of its properties or assets may be bound or affected and will not materially
impair or delay the ability of the Buyer to perform its obligations under this
Agreement or under any of the Ancillary Agreements to which it is a
party.
Section
4.4 Litigation
There
is
no Litigation pending, or to the Knowledge of the Buyer, threatened against
or
affecting the Buyer relating to the transactions contemplated
hereby.
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Section
4.5 Brokers
and Finders
No
investment banker, broker, finder or other intermediary has been retained by
or
is authorized to act on behalf of the Buyer or any of its Affiliates, and no
such Person is entitled to any fee or commission from the Seller or any of
their
Affiliates in connection with the transactions contemplated by this
Agreement.
ARTICLE
V
Covenants
Section
5.1 Covenants
of the Seller
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(a)
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Conduct
of Business From
the date hereof until the Closing, the Seller shall, and shall cause
the
Company to, conduct the Business in the Ordinary Course, use its
commercially reasonable efforts to preserve intact the business,
the
assets and the relationships of the Company with their respective
customers, suppliers, regulators and others having business dealings
with
them.
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(b)
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No
Solicitation
Until the earlier of the termination of this Agreement and the Closing,
the Seller shall not, and shall cause their Affiliates and any Persons
acting on its behalf not to, directly or indirectly, (i) solicit,
initiate, facilitate or encourage any inquiries or proposals for,
or
continue or enter into any discussions, negotiations, understanding,
arrangements or agreements with respect to, the acquisition of any
Units
or any portion of the assets of the Company whether by sale, merger
or
otherwise, or (ii) furnish or cause to be furnished any material
non-public information concerning the Company.
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(c)
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Public
Announcements
Seller shall not, and shall not permit any of its Affiliates to,
make any
public announcement in respect of this Agreement or the Ancillary
Agreements or the transactions contemplated hereby or thereby without
the
prior consent of the Buyer except as required by applicable
Law.
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(d)
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Further
Actions
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(i)
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Seller
shall use its commercially reasonable efforts to take all actions
and to
do all things necessary, proper or advisable to consummate the
transactions contemplated hereby by the Closing Date;
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(ii)
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Seller
shall, as promptly as practicable, file or supply, or cause to be
filed or
supplied, all applications, notifications and information required
to be
filed or supplied by it pursuant to applicable Law in connection
with this
Agreement and the Ancillary Agreements and the consummation of the
other
transactions contemplated hereby and
thereby.
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(iii)
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Seller
shall, as promptly as practicable, use its commercially reasonable
efforts
to obtain, or cause to be obtained, all Consents (including all
Governmental Approvals and all Consents required under any contracts)
necessary to be obtained in order to consummate the transactions
contemplated by this Agreement.
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(iv)
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Seller
shall, and shall cause its respective Affiliates to, coordinate and
cooperate with the Buyer in exchanging such information and supplying
such
assistance as may be reasonably requested by the
Buyer.
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(e)
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Further
Assurances
Following the Closing, Seller shall, and shall cause its Affiliates,
from
time to time, to, execute and deliver such additional instruments,
documents, conveyances or assurances and take such other actions
as shall
be necessary, or otherwise reasonably requested by the Buyer, to
confirm
and assure the rights and obligations provided for in this Agreement
and
in the Ancillary Agreements and render effective the consummation
of the
transactions contemplated hereby and
thereby.
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(f)
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Specific
Performance The
parties acknowledge that there may be no adequate remedy at law for
a
breach of this Section 5.1 and that money damages may not be an
appropriate remedy for breach of such Section. The parties accordingly
agree that the Buyer shall have the right to injunctive relief and
specific performance of this Section 5.1 in the event of any breach
of such Section in addition to any rights it may have for damages,
which shall include out-of-pocket expenses, attorneys’ fees and expenses,
court costs, loss of business opportunities and any other damages,
direct
and indirect, consequential, punitive or otherwise. The remedies
set forth
in this Section 5.1(f) are cumulative and shall in no way limit any
other remedy any party hereto has at law, in equity or pursuant
hereto.
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(g)
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Confidentiality
Seller
will treat and hold as such all of the Confidential Information,
refrain
from using any of the Confidential Information except in connection
with
this Agreement, and deliver promptly to the Buyer or destroy, at
the
request and option of the Buyer, all tangible embodiments (and all
copies)
of the Confidential Information which are in its possession. In the
event
that Seller is requested or required (by oral question or request
for
information or documents in any legal proceeding, interrogatory,
subpoena,
civil investigative demand, or similar process) to disclose any
Confidential Information, then Seller will notify the Buyer promptly
of
the request or requirement so that the Buyer may seek an appropriate
protective order or waive compliance with the provisions of this
Section
5.1(g). If, in the absence of a protective order or the receipt of
a
waiver hereunder, Seller may, on the advice of counsel, that it might
otherwise stand liable for contempt, Seller may disclose the Confidential
Information to the tribunal; provided, however, that the Seller shall
use
its best efforts to obtain the assurance that confidential treatment
will
be accorded to such portion of the Confidential Information required
to be
disclosed as the Buyer shall designate. The foregoing provisions
shall not
apply to any Confidential Information which is generally available
to the
public immediately prior to the time of disclosure.
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Section
5.2 Covenants
of the Buyer
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(a)
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Further
Actions
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(i)
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The
Buyer shall use its commercially reasonable efforts to take all actions
and to do all things necessary, proper or advisable to consummate
the
transactions contemplated hereby by the Closing Date.
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(ii)
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The
Buyer shall, as promptly as practicable, file or supply, or cause
to be
filed or supplied, all applications, notifications and information
required to be filed or supplied by the Buyer pursuant to applicable
Law
in connection with this Agreement and the Ancillary Agreements and
the
consummation of the transactions contemplated hereby and
thereby.
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(iii)
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The
Buyer shall coordinate and cooperate with the Seller in exchanging
such
information and supplying such assistance as may be reasonably requested
by the Seller.
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(b)
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Further
Assurances
Following the Closing, the Buyer shall, from time to time, execute
and
deliver such additional instruments, documents, conveyances or assurances
and take such other actions as shall be necessary, or otherwise reasonably
requested by the Seller, to confirm and assure the rights and obligations
provided for in this Agreement and in the Ancillary Agreements and
render
effective the consummation of the transactions contemplated hereby
and
thereby.
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ARTICLE
VI
Conditions
Precedent
Section
6.1 Conditions
to Obligations of Each Party
The
obligations of the parties to consummate the transactions contemplated hereby
shall be subject to the satisfaction or waiver on or prior to the Closing Date
of the following condition:
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(a)
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No
Injunctions.
The consummation of the transactions contemplated hereby or by the
Ancillary Agreements shall not have been enjoined or prohibited by
applicable Law and no proceeding by or before any Governmental Authority
challenging such transactions shall have been initiated or threatened.
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(b)
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Ancillary
Agreements.
Each of the Ancillary Agreements shall be in full force and effect
as of
the Closing Date and become effective in accordance with the respective
terms thereof and the actions required to be taken thereunder by
the
parties thereto immediately prior to the Closing Date shall have
been
taken, and each person or entity who or which is required or contemplated
by the parties hereto to be a party to any Ancillary Agreement who
or
which did not theretofore enter into such Ancillary Agreement shall
execute and deliver such Ancillary Agreement.
|
Section
6.2 Conditions
to Obligations of the Buyer
The
obligations of the Buyer to consummate the transactions contemplated hereby
shall be subject to the satisfaction (or waiver by the Buyer) on or prior to
the
Closing Date of the following additional conditions:
|
(a)
|
Representations
and Warranties
The representations and warranties of the Seller contained in this
Agreement and the Ancillary Agreements shall be true and correct
in all
respects (in the case of any representation or warranty containing
any
materiality qualification) or in all material respects (in the case
of any
representation or warranty without any materiality qualification)
as of
the date hereof and as of the Closing Date with the same effect as
though
made on such date (except for such representations and warranties
that are
made as of a specific date, which shall speak only as of such
date).
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|
(b)
|
Covenants
The
Seller has duly performed and complied in all material respects with
all
agreements and conditions required by this Agreement and each of
the
Ancillary Agreements to be performed or complied with by it prior
to or on
the Closing Date.
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|
(c)
|
Certificate
At
the Closing, the Seller shall have delivered to the Buyer a certificate,
dated the Closing Date and signed by its duly authorized manager,
to the
effect that the conditions set forth in Sections 6.2(a) and (b) have
been
satisfied.
|
|
(d)
|
Consents
The Seller shall have obtained and shall have delivered to the Buyer
complete and correct copies of (i) all Governmental Approvals required
to
be obtained in connection with the execution and delivery of this
Agreement and the Ancillary Agreements and the consummation of the
transactions contemplated hereby and thereby and (ii) all Consents
(including all Consents required under Contracts) necessary to be
obtained
in order to consummate the sale and transfer of the Units pursuant
to this
Agreement and consummation of the other transactions contemplated
hereby.
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|
(e)
|
Ancillary
Agreements
The Company and the Seller, as the case may be, shall have executed
and
delivered to the Buyer, each of Ancillary Agreements to be executed
by the
parties.
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|
(f)
|
Proceedings
All limited liability company or other proceedings of the Company
and the
Seller in connection with the transactions contemplated by this Agreement
and the Ancillary Agreements shall be reasonably satisfactory to
the Buyer
and its counsel, and the Buyer and its counsel shall have received
copies
of all documents and instruments incident thereto, as may be reasonably
requested.
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-10-
Section
6.3 Conditions
to Obligations of the Seller
The
obligation of the Seller
to
consummate the transactions contemplated hereby shall be subject to the
satisfaction (or waiver by the Company), on or prior to the Closing Date, of
the
following additional conditions:
|
(a)
|
Representations
and Warranties
The representations and warranties of the Buyer contained in this
Agreement and the Ancillary Agreements shall be true and correct
in all
respects (in the case of any representation or warranty containing
any
materiality qualification) or in all material respects (in the case
of any
representation or warranty without any materiality qualification)
as of
the date hereof and as of the Closing Date with the same effect as
though
made on such date (except for such representations and warranties
that are
made as of a specific date, which shall speak only as of such
date).
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|
(b)
|
Covenants
The
Buyer shall have duly performed and complied in all material respects
with
all agreements and conditions required by this Agreement and the
Ancillary
Agreements to be performed or complied with by it prior to or on
the
Closing Date.
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|
(c)
|
Certificate
The
Buyer shall have delivered to the Company a certificate, dated the
Closing
Date and signed by its duly authorized officer, to the effect that
the
conditions set forth in Sections 6.3(a) and (b) have been
satisfied.
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|
(d)
|
Consents
and Approvals
The Buyer shall have obtained all Governmental Approvals necessary
to
consummate the transactions contemplated hereby, which shall be in
full
force and effect.
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|
(e)
|
Ancillary
Agreements
The Buyer or its designees shall have entered into each of the Ancillary
Agreements to which it is a party.
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|
(f)
|
Proceedings
All corporate or other proceedings of the Buyer in connection with
the
transactions contemplated by this Agreement and the Ancillary Agreements
shall be reasonably satisfactory to the Company, the Seller and their
counsel, and the Company and its counsel shall have received copies
of all
documents and instruments incident thereto, as may be reasonably
requested.
|
ARTICLE
VII
TAX
MATTERS
Buyer,
the Company, and Seller
shall cooperate fully, as and to the extent reasonably requested by the other
party, in connection with the filing of Tax Returns pursuant to this
Article VII and any audit, litigation or other proceeding with respect to
Taxes. Such cooperation shall include the retention and (upon the other party's
request) the provision of records and information that are reasonably relevant
to any such audit, litigation or other proceeding and making employees available
on a mutually convenient basis to provide additional information and explanation
of any material provided hereunder. The Company and Seller agree (A) to retain
all books and records with respect to Tax matters pertinent to the Company
relating to any taxable period beginning before the Closing Date until the
expiration of the statute of limitations (and, to the extent notified by Buyer
or Seller, any extensions thereof) of the respective taxable periods, and to
abide by all record retention agreements entered into with any taxing authority,
and (B) to give the other party reasonable written notice prior to transferring,
destroying or discarding any such books and records and, if the other party
so
requests, the Company or Seller, as the case may be, shall allow the other
party
to take possession of such books and records. Buyer and Seller further agree,
upon request, to use their best efforts to obtain any certificate or other
document from any governmental authority or any other Person as may be necessary
to mitigate, reduce or eliminate any Tax that could be imposed (including,
but
not limited to, with respect to the transactions contemplated
hereby).
-11-
ARTICLE
VIII
Termination
Section
8.1 Termination
This
Agreement may be terminated at any time prior to the Closing:
|
(a)
|
by
the mutual written agreement of the Buyer and the
Seller;
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|
(b)
|
by
either the Seller or the Buyer by written notice to the other parties
if
the transactions contemplated hereby shall not have been consummated
pursuant hereto by 5:00 p.m. Central Daylight time on May 16, 2008,
unless
such date shall be extended by the mutual written consent of the
parties;
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|
(c)
|
by
either the Seller or the Buyer by written notice to the other parties
if
any Governmental Authority shall have issued an Order (which Order
the
parties hereto shall use their commercially reasonable efforts to
lift),
in each case permanently restraining, enjoining or otherwise prohibiting
the consummation of the transactions contemplated by this Agreement
and
such Order shall have become final and non-appealable;
or
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|
(d)
|
by
either the Seller or the Buyer by written notice to the other parties
if
any event, fact or condition shall occur or exist that shall have
made it
impossible to satisfy a condition precedent to the terminating party’s
obligations to consummate the transactions contemplated by this Agreement,
unless the occurrence or existence of such event, fact or condition
shall
be due to the failure of the terminating party to perform or comply
with
any of the agreements, covenants or conditions hereof to be performed
or
complied with by such party prior to the
Closing.
|
Section
8.2 Effect
of Termination
In
the
event of the termination of this Agreement pursuant to the provisions of Section
8.1, this Agreement shall become void and have no effect, without any liability
to any Person in respect hereof or of the transactions contemplated hereby
on
the part of any party hereto, or any of their Affiliates or Representatives,
except
as
specified in Sections 2.3, 5.1(g), 10.1, 10.11 and 10.12 and except for any
liability resulting from such party’s breach of this Agreement.
ARTICLE
IX
Indemnification
Section
9.1 Indemnification
by the Seller
The
Seller shall defend, indemnify and hold harmless each of the Buyer and its
Affiliates and their respective Representatives and owners, including but not
limited to Xxxxx Xxxx (collectively, the “Buyer
Indemnitees”)
from
and against, and pay or reimburse the Buyer Indemnitees for, any and all
Litigation and Liabilities, whether or not relating to third party claims,
incurred in the investigation or defense of any of the same or in asserting,
preserving or enforcing any of their respective rights hereunder (collectively,
“Losses”),
resulting from, arising out of or relating to (a) any breach of or inaccuracy
in
any representation or warranty when made or deemed made by the Seller in or
pursuant to this Agreement or in any certificate furnished by the Seller
hereunder or (b) any failure by Seller to perform any covenant or agreement
hereunder.
Section
9.2 Indemnification
by the Buyer
The
Buyer
shall defend, indemnify and hold harmless the Seller and its Representatives
(collectively, the “Seller’s
Indemnitees”)
from
and against any and all Losses resulting from, arising out of or relating to
(a)
any breach of or inaccuracy in any representation or warranty made or deemed
made by the Buyer in or pursuant to this Agreement or in any certificate
furnished by the Buyer hereunder or (b) any failure of the Buyer to perform
any
covenant or agreement hereunder.
-12-
Section
9.3 Certain
Limitations
|
(a)
|
Except
with respect to claims for indemnification based on breaches of or
inaccuracies in the representations and warranties contained in Section
3.3 and 3.7 the Seller shall not be required to indemnify the Buyer
Indemnitees with respect to any claim for indemnification pursuant
to
Section 9.1(a) unless and until the aggregate amount of its Losses
exceeds
$50,000 (the “Threshold
Amount”),
in which event the Seller shall be responsible for the full amount
of such
Losses, including the Threshold Amount, provided
that the aggregate liability of the Seller to the Buyer Indemnitees
under
Section 9.1(a) shall not exceed 75% of the Final Purchase Price (the
“Cap”).
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|
(b)
|
With
respect to any claims for indemnification based on breaches of or
inaccuracies in the representations and warranties contained in Sections
3.3 and 3.7, the Seller agrees to indemnify the Buyer Indemnitees
from and
against the entirety of any Losses the Buyer Indemnitees may suffer
resulting from, arising out of, relating to, in the nature of, or
caused
by such breaches or inaccuracies up to the full amount of the Purchase
Price.
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|
(c)
|
Except
with respect to claims for indemnification based on breaches of or
inaccuracies in the representations and warranties contained in Sections
4.1 and 4.5, the Buyer shall not be required to indemnify the Seller
with
respect to any claim for indemnification pursuant to Section 9.2(a)
unless
and until the aggregate amount of Seller’s Losses exceeds the Threshold
Amount, in which event the Buyer shall be responsible for the full
amount
of such Loss, including the Threshold Amount, provided
that the aggregate liability of the Buyer to the Seller under Section
9.2(a) shall not exceed the Cap. With respect to any claims for
indemnification based on breaches of or inaccuracies in the
representations and warranties contained in Sections 4.1 and 4.5,
the
Buyer agrees to indemnify the Seller Indemnitees from and against
the
entirety of any Losses the Seller Indemnitees may suffer resulting
from,
arising out of, relating to, in the nature of, or caused by such
breaches
or inaccuracies up to the full amount of the Purchase Price.
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|
(d)
|
For
purposes of this Article IX, any breach of or inaccuracy in any
representation or warranty shall be determined without regard to
any
materiality or Material Adverse Effect or similar qualification or
exception and any qualification or requirement that a matter be or
not be
reasonably expected to occur.
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|
(e)
|
Except
as set forth in Section 7.1 above, the rights to indemnification
provided
for in this Article IX shall be the sole and exclusive remedy of
the Buyer
or the Seller, as the case may be, after the Closing for any breaches
of
or inaccuracy of any representation or warranty of the Seller or
the
Buyer, respectively, herein; provided
that nothing herein shall limit in any way any such party’s remedies in
respect of fraud, gross negligence or willful misconduct by the other
party in connection herewith or the transactions contemplated
hereby.
|
Section
9.4 Indemnification
Procedures
|
(a)
|
In
the event of any Litigation asserted by a third party (a “Third
Party Claim”)
against a party entitled to indemnification under this Agreement
(the
“Indemnified
Party”),
notice shall be given by the Indemnified Party to the party required
to
provide indemnification (the “Indemnifying
Party”)
promptly after such Indemnified Party has actual knowledge of such
Third
Party Claim. The failure of any Indemnified Party to give notice
as
provided herein shall not relieve the Indemnifying Party of its
indemnification obligation under this Agreement except to the extent
that
such failure results in a lack of actual notice to the Indemnifying
Party
and such Indemnifying Party is materially prejudiced
thereby.
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-13-
|
(b)
|
If
the Indemnifying Party acknowledges in writing its indemnification
obligation with respect to such Third Party Claim, the Indemnifying
Party
may elect to assume the defense of such Third Party Claim, at the
expense
of the Indemnifying Party, by written notice to the Indemnified Party
within 20 days after the Indemnified Party has provided notice of
the
Third Party Claim; provided
that counsel for the Indemnifying Party who shall conduct the defense
of
such Third Party Claim shall be reasonably satisfactory to the Indemnified
Party, and that the Indemnified Party may participate in such defense
at
such Indemnified Party’s expense. Except with the prior written consent of
the Indemnified Party, no Indemnifying Party, in the defense of any
such
Third Party Claim, shall consent to entry of any judgment or enter
into
any settlement that provides for injunctive or other non-monetary
relief
affecting the Indemnified Party or that does not include as an
unconditional term thereof the giving by each claimant or plaintiff
to
such Indemnified Party of an irrevocable release from all liability
with
respect to such Third Party Claim. Notwithstanding the foregoing,
in the
event that the Indemnified Party shall in good faith determine that
the
Indemnified Party may have available to it one or more defenses or
counterclaims that are inconsistent with one or more of those that
may be
available to the Indemnifying Party in respect of such Third Party
Claim,
the Indemnified Party shall have the right, but not the obligation,
at all
times to take over and assume control over the defense, settlement,
negotiations or Litigation relating to any such Third Party Claim
at the
expense of the Indemnifying Party, provided
that if the Indemnified Party does so take over and assume control,
the
Indemnified Party shall not settle such Third Party Claim without
the
prior written consent of the Indemnifying Party, not to be unreasonably
withheld or delayed.
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|
(c)
|
If
the Indemnifying Party does not assume the defense of such Third
Party
Claim in accordance with the preceding paragraph, the Indemnified
Party
shall be entitled to assume and control such defense and to settle
or
agree to pay in full such Third Party Claim without the consent of
the
Indemnifying Party without prejudice to the ability of the Indemnified
Party to enforce its claim for indemnification against the Indemnifying
Party hereunder.
|
|
(d)
|
In
all cases, the parties shall cooperate in the defense of any Third
Party
Claim subject to this Article IX and the records of each shall be
available to the other with respect to such defense. The party controlling
the defense of such Third Party Claim shall keep the other party
reasonably advised of the status of such Third Party Claim and the
defense
thereof and shall consider in good faith any reasonable recommendations
made by the non-controlling party with respect
thereto.
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|
(e)
|
In
the event that an Indemnified Party sustains any Losses not involving
a
Third Party Claim that such Indemnified Party believes gives rise
to a
claim for indemnification hereunder, such Indemnified Party shall,
if it
intends to make a claim with respect thereto against an Indemnifying
Party, deliver notice of such claim to the Indemnifying Party. If
the
Indemnifying Party does not notify the Indemnified Party within 30
days
after its receipt of such notice that the Indemnifying Party disputes
its
liability to the Indemnified Party, such claim specified by the
Indemnified Party in such notice shall be conclusively deemed a liability
of the Indemnifying Party and the Indemnifying Party shall pay the
amount
of such claim to the Indemnified Party promptly after demand therefor
or,
in the case of any notice in which the amount of the claim (or any
portion
thereof) is estimated, on such later date on which such amount (or
such
portion) is finally determined. If the Indemnifying Party has timely
disputed its liability with respect to such claim as provided above,
the
Indemnifying Party and the Indemnified Party shall proceed in good
faith
to negotiate a resolution of such dispute, and if not resolved through
such negotiations, such dispute shall be resolved by litigation in
an
appropriate court of competent jurisdiction in accordance with Sections
10.11 and 10.12.
|
-14-
Section
9.5 Survival
of Representations and Warranties
All
claims for indemnification under Section 9.1 or Section 9.2 with respect to
the
representations and warranties contained herein must be asserted on or prior
to
the date that is 30 days after the termination of the respective survival
periods
set
forth in this Section 9.5. The representations and warranties contained in
this
Agreement shall survive the execution and delivery of this Agreement, any
examination by or on behalf of the parties hereto and the completion of the
transactions contemplated herein, but only to the extent specified
below:
|
(a)
|
except
as set forth below, the representations and warranties contained
in
Articles II and III shall survive for a period ending on the first
anniversary of the Closing Date;
and
|
|
(b)
|
the
representations and warranties of the Seller contained in Sections
2.3,
3.1, 3.2, and 3.3, and of the Buyer contained in Sections 2.3, 4.1
and 4.6
shall survive without limitation.
|
Notwithstanding
the expiration of any such survival period, if the Indemnified Party has
provided notice with respect to a breach of representation or warranty within
the applicable survival period, the relevant representation or warranty shall
survive, solely with respect to such claim as is asserted in such notice, until
the claim has been finally resolved. The covenants, obligations and agreements
of each party contained in this Agreement shall survive the Closing Date
indefinitely in accordance with their respective terms.
ARTICLE
X
Miscellaneous
Section
10.1 Expenses
Unless
otherwise agreed by the parties in writing, the Seller, on the one hand, and
the
Buyer, on the other hand, shall bear their respective expenses, costs and fees
(including attorneys’ and auditors’ fees) in connection with the transactions
contemplated hereby, including the preparation, execution and delivery of this
Agreement and the Ancillary Agreements and compliance herewith and therewith,
whether or not the transactions contemplated hereby shall be consummated. The
parties agree that the fees, costs and expenses of any adviser (including any
legal counsel) to the Company (including, without limitation, fees, costs and
expenses of any brokers, finders or similar agents employed by or on behalf
of
the Company) advising in respect of this Agreement, the Ancillary Agreements
and
the transactions contemplated hereby and thereby shall be the responsibility
of
and shall be paid by the Company.
Section
10.2 Notices
|
(a)
|
Any
notice or other communication in connection with this Agreement (each,
a
“Notice”)
shall be delivered by hand, fax, registered post or by courier using
an
internationally recognized courier
company.
|
|
(b)
|
A
Notice to the Buyer shall be sent to at the following address, or
such
other person or address as the Buyer may notify to the Seller from
time to
time:
|
000
Xxxxx
Xxxx Xxxxxx
Xxxxx,
XX 00000
Attn:
Xxx
Xxxxxx, Co-CEO
-15-
with
a
copy to:
Xxxxxxx
Xxxxxxxxx
Xxxxx,
Xxxxx and Xxxxx, LLP
0000
Xxxxx Xxxx.
Xxxxxx
Xxxx, XX 00000-0000
(000)
000-0000 (fax)
Xxxxxxxxxx@xxx.xxx
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(c)
|
A
Notice to the Seller shall be sent to the following address, or such
other
person or address as the Seller may notify to the Buyer from time
to
time:
|
MERCY,
LLC
________________
________________
with
a
copy to:
Xxxxx
X.
Xxxxx
Xxxxx
Law
Office, LLC
000
X.
Xxxx
Xxxxxxx,
Xxxxxx 00000
(000)
000-0000 (fax)
xxxxx@xxxxx-xxx.xxx
|
(d)
|
A
Notice shall be effective upon receipt and shall be deemed to have
been
received:
|
|
(i)
|
at
the time of delivery, if delivered by hand, registered post or courier;
and
|
|
(ii)
|
at
the expiration of two hours after completion of the transmission,
if sent
by facsimile,
|
provided
that if
a Notice would become effective under the above provisions after 5.30 p.m.
on
any Business Day, then it shall be deemed instead to become effective at 9.30
a.m. on the next Business Day. References in this Agreement to time are to
local
time at the location of the addressee as set out in the Notice.
Subject
to the foregoing provisions of this Section 10.2, in proving service of a
Notice, it shall be sufficient to prove that the envelope containing such Notice
was properly addressed and delivered by hand, registered post or courier to
the
relevant address pursuant to the above provisions or that the facsimile
transmission report (call back verification) states that the communication
was
properly sent.
Section
10.3 Entire
Agreement
This
Agreement (including the Schedules hereto)and the Ancillary Agreements (when
executed and delivered) constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof and thereof.
Section
10.4 Schedules
The
disclosure of any matter in the Schedules referenced by a particular Section
shall be deemed to be disclosed with respect to any other Section as and to
the
extent that the relevance of such matter to such other Section is readily
apparent on the face of such disclosure.
-16-
Section
10.5 Amendment;
Waivers
No
amendment, modification or discharge of this Agreement, and no waiver hereunder,
shall be valid or binding unless set forth in writing and duly executed by
the
party against whom enforcement of the amendment, modification, discharge or
waiver is sought. Any such waiver shall constitute a waiver only with respect
to
the specific matter described in such writing and shall in no way impair the
rights of the party granting such waiver in any other respect or at any other
time. Neither the waiver by any of the parties hereto of a breach of or a
default under any of the provisions of this Agreement, nor the failure by any
of
the parties, on one or more occasions, to enforce any of the provisions of
this
Agreement or to exercise any right or privilege hereunder, shall be construed
as
a waiver of any other breach or default of a similar nature, or as a waiver
of
any of such provisions, rights or privileges hereunder. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party may otherwise have at law or in equity.
Section
10.6 Severability
If
any
provision of this Agreement, including any phrase, sentence, clause, Section
or
subsection, is inoperative or unenforceable for any reason, such circumstances
shall not have the effect of rendering the provision in question inoperative
or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. If any provision of this Agreement shall be adjudged
to be excessively broad as to duration, geographical scope, activity or subject,
the parties hereto intend that such provision shall be deemed modified to the
minimum degree necessary to make such provision valid and enforceable under
applicable Law and that such modified provision shall thereafter be enforced
to
the fullest extent possible.
Section
10.7 Counterparts
This
Agreement may be executed in several counterparts (including by facsimile or
other electronic transmission), each of which shall be deemed an original and
all of which shall together constitute one and the same instrument.
Section
10.8 Binding
Effect
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and permitted assigns.
Section
10.9 Assignment
This
Agreement shall not be assignable or otherwise transferable by any party hereto
without the prior written consent of the other party hereto, provided
that the
Buyer may assign this Agreement to one or more of its direct or indirect
Affiliates.
Section
10.10 No
Third Party Beneficiaries
Except
as
provided in Article IX with respect to indemnification of Indemnified Parties
hereunder, nothing in this Agreement shall confer any rights upon any person
or
entity other than the parties hereto and their respective heirs, successors
and
permitted assigns.
Section
10.11 Governing
Law
This
Agreement shall be governed in all respects by the laws of the State of Kansas,
without giving effect to the conflict of laws rules thereof to the extent such
rules would require or permit the application of the laws of another
jurisdiction. The parties hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of
any
such dispute and agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 10.2,
or in
such other manner as may be permitted by applicable Law, shall be valid and
sufficient service thereof.
Section
10.12 Waiver
of Jury Trial
EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(A)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN INDUCED
TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10.12.
-17-
In
Witness Whereof,
the
parties have duly executed this Agreement as of the date first above
written.
By: /s/
Xxx Xxxxxx
Xxx
Xxxxxx, Co-Chief Executive Officer
MERCY,
LLC
By: /s/
Xxxxx Xxxxxx Xxxx
Xxxxx
Xxxxxx Xxxx, Manager
-18-
