EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
By and among
DEGUSSA WALL SYSTEMS, INC.,
DEGUSSA CONSTRUCTION CHEMICALS OPERATIONS, INC.
AND
ACROCRETE, INC.
July 25, 2005
ASSET PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made this 25th day of July, 2005, by and
among Degussa Wall Systems, Inc., a corporation organized under the laws of
Delaware ("DWS"), Degussa Construction Chemicals Operations, Inc., a corporation
organized under the laws of Delaware ("DCCO") (DCCO and DWS are hereinafter
collectively referred to as "Purchaser") and Acrocrete, Inc., a corporation
organized under the laws of Florida ("Acrocrete" or "Seller").
R E C I T A L S:
A. Acrocrete is the owner and operator of certain operating assets used in
the production of EIFS and related products ("Products") at its facility in
Kennesaw, Georgia (the "Facility").
B. Purchaser desires to purchase, and Seller desires to sell to Purchaser,
certain of the assets of Seller associated with the Products, and used
exclusively in the operation of the Facility (the "Business") as provided in
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, Purchaser and Seller agree as follows:
ARTICLE I
TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES
Section 1.01 Transfer of Assets to Purchaser. (a) On the terms and subject
to the conditions in this Agreement, on the Closing Date (as defined in Article
VII (Closing) hereof), Seller or Seller's affiliates, will convey, transfer,
assign and deliver to Purchaser, free and clear of all liens, charges,
covenants, conditions, easements, limitations, servitudes, encroachments,
security interests, adverse claims and demands whatsoever (collectively,
"Encumbrances"), the following assets owned by Seller or used by Seller in
Seller's operation of the Business (except Excluded Assets as defined in Section
1.02 (Excluded Assets) hereof)::
(i) Proprietary Rights. All proprietary rights and proprietary
information consisting of customer lists, trade secrets,
product formulations, manufacturing know-how, quality
specifications and test procedures, research findings, and
research-in-progress, and all attendant registrations and
applications thereof which are used exclusively in the
Business and which are listed on Schedule 1.01(a)(i);
(ii) Trade and Domain Names. All right, title and interest in and
to the trade name "Acrocrete" and the domain name
xxx.xxxxxxxxx.xxx and any derivations thereof in which
Acrocrete has reserved rights.
(iii) Code Approvals. All code approvals associated with the
Business and which are listed on Schedule 1.01(a)(iii).
(b) On the terms and subject to the conditions in this Agreement, on
September 30, 2005, Seller or Seller's affiliates, will convey,
transfer, assign and deliver to Purchaser, free and clear of all
Encumbrances, the following assets owned by Seller or used by Seller
in Seller's operation of the Business (except Excluded Assets as
defined in Section 1.02 (Excluded Assets) hereof):
(i) Machinery & Equipment. That certain machinery and equipment
as set forth on Schedule 1.01(b)(i) (the "Equipment");
(ii) Accounts Receivable. All collectible accounts receivable of
All South and B&L Distributing less than one hundred twenty
(120) days which are outstanding on the books of the
Business as of September 30, 2005 (the "Accounts
Receivable").
(iii) Contracts. Those certain contracts identified on Schedule
1.01(b)(iii) (the "Assumed Contracts");
(iv) Permits. The licenses, permits, rights and authorizations
relating to the ownership, use and operation of the Subject
Assets (as defined below) to the extent transferable (the
"Permits") listed on Schedule 1.01(b)(iv).
(v) Books and Records. Copies of such books and records as may
be reasonably required by the Purchaser and directly related
to the Business, which are readily available and kept in the
ordinary and regular course of business relating exclusively
to the Business, but excluding Seller's corporate books and
records (the "Books and Records");
(vi) Business Data. Any other information, records or data
maintained in electronic form or otherwise as Buyer may deem
reasonably necessary to the Business, which relate
exclusively to the Business.
(vii) Employee Agreements. All rights of Seller in connection
with any employee non-compete and non-disclosure agreements
or policies for any employees of the Business who are to be
employed by the Purchaser following September 30, 2005 in
accordance with Section 11.03 hereinto the extent
transferable and;
All of the items listed in Section 1.01 are referred to collectively, the
"Subject Assets."
Section 1.02 Excluded Assets. The Subject Assets shall not include any
tangible or intangible assets not listed in Section 1.01, including but not
limited to:
(a) Cash and Deposits. All cash on hand and in accounts deposits and
prepayments of Seller.
(b) Machinery, Vehicles and Equipment. All machinery, vehicles and
equipment not listed on Schedule 1.01(b)(i);
(c) Real Property, Improvements and Fixtures. All real property owned
or leased and the improvements and fixtures associated therewith;
(d) Investments. Investments in securities, bonds or similar assets
held through one or more brokerage or similar accounts;
(e) Other Accounts. Any and all accounts receivables not identified
in Section 1.01(b) as well as related party or inter-company
accounts or notes receivable;
(f) Corporate Records. All corporate records of Seller, except as
included in Acquired Assets; and
(g) Insurance. Any insurance policies of Seller.
Section 1.03 Assumed Liabilities. Except for any future obligations under
any Assumed Contracts, Seller understands, acknowledges and agrees that
Purchaser is not assuming, and under no circumstances shall it have any
liability for, any debt, liability, or obligation of Seller or the Business
whatsoever, whether vested or contingent, known or unknown, including, without
limitation, trade accounts payable as of the Closing Date incurred in the
ordinary course of business.
Section 1.04 Excluded Liabilities. Without limiting the generality of
Section 1.03, Purchaser is not assuming and under no circumstances shall it have
any liability of Seller for:
(a) any liability or obligation under any "employee benefit plan," as
such term is defined in Section 3(3) of the Employee Retirement
Security Act of 1974, as amended, any fringe benefit plan, any
equity compensation plan or arrangement, any plan, policy or
arrangement for the provision of executive compensation,
incentive benefits, bonuses or severance benefits, any employment
contract, collective bargaining agreement, deferred compensation
agreement, cafeteria plan or split-dollar insurance arrangement,
or any other plan, policy or arrangement for the provision of
employee benefits (collectively, "Plans");
(b) any liability or obligation resulting from or arising out of any
leased property;
(c) any salary, bonus, accrued vacation, payroll, severance, workers
compensation, health care or other benefits obligation, or other
reimbursements owed by Seller to any of their employees, sales
agents, independent sales representatives or other persons;
(d) any obligation of Seller for Taxes (as such term is defined in
Section 3.05 (Taxes) hereof);
(e) any obligation or liability of Seller with respect to violation
of any Laws (as such term is defined in Section 3.14 (Compliance
with Laws) hereof);
(f) any liability or obligation of Seller for any tort claims,
including, without limitation, claims for product liability,
sexual harassment, or employment or other discrimination; and
(g) any debts and liabilities of Seller, including inter-company
accounts payable, and loans from shareholders or affiliates . All
of the above as they exist on the Closing Date collectively
referred to as the "Excluded Liabilities."
Section 1.05 Method of Conveyance and Transfer. The conveyance, transfer
and delivery of the Subject Assets will be effected by bills of sale,
endorsements, assignments and other instruments of transfer, all in such form as
Purchaser reasonably requests, vesting in Purchaser's good and marketable title
to the Subject Assets, free and clear of all Encumbrances.
Section 1.06 Further Assurances. Seller, at any time after September 30,
2005, upon request of Purchaser will do, execute, acknowledge and deliver, all
such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably required for the conveying,
transferring, assigning, and delivering to Purchaser or its successors and
assigns and for aiding and assisting in collecting and reducing to possession
the Subject Assets.
Section 1.07 Testing Codes.
(a) Availability to Purchaser. Without in any way limiting the generality
of Section 1.06 (Further Assurances) hereof, until the transfer of the Testing
Codes to Purchaser is complete but in no event later than the date that is six
(6) months from the Closing Date, Seller hereby covenants and agrees to take any
action necessary to maintain and ensure the availability to Purchaser of the
Testing Codes for any customary commercial or economic purpose; provided
however, any expenses associated with compliance with this Section 1.07(a) shall
be borne by the Purchaser
(b) No Retransfer. Seller shall not, directly or indirectly, consent to
transfer or otherwise permit the use of the Testing Codes for any purpose
whatsoever by any entity, including, without limitation, modifications and
enhancements, except pursuant to Section 1.01 (Transfer of Assets to Purchaser)
hereof. The foregoing notwithstanding, Seller may transfer the Testing Codes to
the successor to all or substantially all of its entire business and assets.
ARTICLE II
PAYMENT OF PURCHASE PRICE
Section 2.01 Payment by Purchaser. Purchaser will pay to Seller or its
designated affiliates as determined by the Seller, by wire transfer to an
account or accounts designated in writing by Seller, or by certified or official
bank checks in immediately available funds, the purchase price for the Subject
Assets in amounts as follows (collectively, the "Purchase Price"):
(a) At the Closing, Two Hundred Fifty Thousand Dollars ($250,000);
plus
(b) On September 30, 2005, Eight Hundred Fifty Thousand Dollars
($850,000.00);
plus
(c) On September 30, 2005, or on the date when possession of the
Equipment is delivered to Purchaser on the terms set forth
herein, the net book value on September 30, 2005 of the Equipment
as set forth on the financial statements of the Seller;
plus
(d) On September 30, 2005, the net book value as of September 30,
2005 of the then outstanding Accounts Receivable. Any Account
Receivable that remains outstanding after ninety (90) days
following September 30, 2005 may be assigned by Purchaser back to
the Seller and the amount of the Accounts Receivable so assigned
will be refunded to Buyer as a post-closing adjustment after the
end of the ninety (90)-day period. The Buyer shall use its
commercially reasonable efforts to collect the Accounts
Receivable, consistent with Buyer's customary collection
practices. In the event that such Accounts Receivables are
reassigned to Seller, Seller shall have the right to take any
action deemed necessary in the Seller's sole discretion to
collect such Accounts Receivable.
In the event Seller or Just-Rite Supply, Inc elects to make purchases of
products pursuant to the Distribution Agreement (as defined below) or otherwise,
Purchaser agrees to pay a portion of the balance owed under subsection 2.01(b)
(but not to exceed $850,000), above, within fifteen (15) days of the end of the
month in which such purchases were made, in an amount equal to such purchases.
The amount owed by Purchaser on September 30, 2005 shall be reduced by the
amount paid early by Purchaser pursuant to this paragraph.
Section 2.02 Transfer Taxes. All applicable state, county and local sales
and transfer taxes, if any, arising by reason of the transfer of the Subject
Assets under this Agreement will be borne by Seller.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF SELLER
Seller represents and warrants to, and agrees with, Purchaser as follows:
Section 3.01 Organization and Standing. Seller is a corporation duly formed
or organized, validly existing and in good standing under the laws of its
jurisdiction of formation or organization. Seller has full power and authority
to carry on its business as and where now conducted and to own or lease and
operate its properties at and where now owned or leased and operated by it, and
is duly qualified to do business and is in good standing in every jurisdiction
in which the property owned, leased or operated by it, or the nature of the
business conducted by it, makes such qualification necessary, including without
limitation, Georgia, except where the failure to be so qualified would not have
a material adverse effect on such Seller, the Subject Assets or the Business.
Section 3.02 Authority of Seller; Consents. The execution, delivery and
consummation of this Agreement by Seller has been duly authorized by its board
of directors and the shareholders of Seller in accordance with all applicable
laws and the Articles of Incorporation and Bylaws of Seller, and at the Closing
Date no further corporate action will be necessary on the part of Seller, or the
shareholders of any Seller to make this Agreement valid and binding on Seller
and enforceable against Seller in accordance with its terms. The execution,
delivery and consummation of this Agreement by Seller:
(a) is not contrary to the Articles of Incorporation or Bylaws of
Seller;
(b) does not now and will not, with the passage of time, the giving
of notice or otherwise, result in a violation or breach of, or
constitute a default under, any term or provision of any
indenture, mortgage, deed of trust, lease, instrument, order,
judgment, decree, rule, regulation, law, contract, agreement or
any other restriction to which Seller is a party or to which
Seller, or any of the Subject Assets are subject or bound;
(c) will not result in the creation of any Encumbrance or other
charge upon any of the Subject Assets; and
(d) will not result in any acceleration or termination of any loan or
security interest agreement to which Seller is a party or to
which Seller, or any of the Subject Assets are subject or bound.
Except as may be listed on Schedule 3.02 hereto, no approval or consent of
any person, firm or other entity or governmental body is or was required to be
obtained by Seller for the authorization of this Agreement or the consummation
by Seller of the transactions contemplated by this Agreement.
Section 3.03 Title to and Condition of Assets.Seller, or its affiliates,
own and possess or will own and possess as of the Closing Date all right, title
and interest in and to the Subject Assets, including, without limitation good
and merchantable title to the Subject Assets free and clear of all Encumbrances
or other title defects or restrictions of any nature. Seller or its Affiliates,
have and will have as of the Closing Date the right, power and authority to
convey, transfer, assign and deliver the Subject Assets free and clear of any
Encumbrance or restriction. There are no facts known to Seller that might
reasonably serve as a basis, in whole or in part, for any material liabilities
or obligations not disclosed in this Agreement or in the Schedules to this
Agreement that would impair the Seller's ability to consummate the subject
transaction on the terms set forth herein. Purchaser has, prior to Closing,
inspected the Subject Assets and accepts them "as is" and acknowledges that
Seller or its affiliates conveys the same without warranty, except as otherwise
provided herein.
Section 3.04 Brokerage and Finder's Fees. No shareholder, officer, director
or agent of Seller have incurred any liability to any broker, finder or agent
for any brokerage fees, finder's fees, or commissions with respect to the
transactions contemplated by this Agreement.
Section 3.05 Taxes. Seller has complied in all material respects all
applicable laws, rules and regulations relating to the payment and withholding
of local, state and federal taxes and, to Seller's knowledge, the Business is
not subject to any xxxx, xxxx or judgment arising from or related to Seller's
failure to comply with or to timely pay any liabilities arising under such tax
laws.
Section 3.06 Assumed Contracts. Schedule 1.01(b)(iii) hereto is a true and
correct list of each Assumed Contract. A true, correct and complete copy of each
written, and a description of each oral, Assumed Contract so listed has been
delivered to Purchaser or its counsel.
Section 3.07 Litigation. Except as set forth on Schedule 3.07, there are no
actions, suits, claims, administrative or judicial proceedings by or against the
Seller affecting the Subject Assets, pending before any state or federal court
or any governmental authority (or, to the knowledge of the Seller, threatened to
be brought by or before any governmental authority) that has had or could
reasonably be expected to have a material adverse effect on the Subject Assets
or could reasonably be expected to affect the legality, validity or
enforceability of this Agreement or the consummation of the transactions
contemplated thereby.
Section 3.08 Employees/Independent Sales Representatives; Distributorship
Agreements. Schedule 3.08 hereto is a true and correct list of all written or
known distributorship agreements or similar written or known agreements to which
Seller is a party, if any. A true, correct and complete copy of each written
such agreement has been delivered to Purchaser or its counsel.
Section 3.09 Intellectual Property Rights.
(a) The Intellectual Property Rights used in the Business and
included in the Subject Assets are set forth on Schedule 3.09(a)
hereto and copies have been delivered to Purchaser and its
counsel. All Intellectual Property Rights included in the Subject
Assets, are valid and subsisting and, to the extent indicated,
have been duly registered in, filed in or issued by the United
States Patent and Trademark Office or other corresponding
applicable governmental agency or office. Seller has never been
charged with or to its knowledge infringed or violated any
Intellectual Property Rights of third parties. To the Seller's
knowledge, Seller is not using, and has not in any way made use
of, any patentable or unpatentable invention, or any confidential
information or trade secret, of any former owner or any present
or past employee of Seller. Premix-Marbletite Manufacturing Co.
("Premix") is the sole and exclusive owner of all Intellectual
Property Rights included in the Subject Assets (except for the
rights of licensees whose names and address are listed and
identified on Schedule 3.09(a)) hereto, and Premix has full
authority to and shall transfer such Intellectual Property Rights
with full title guaranty, free and clear of all Encumbrances.
(b) To the Seller's knowledge, the Seller has not disclosed any
confidential Business information in its possession to any person
to whom it is not obligated to do so. To the knowledge of Seller,
there is no unauthorized use or infringement by any person of any
of the Intellectual Property Rights or confidential Business
Information used in the Business, nor to the Seller's knowledge
has any such unauthorized use or infringement occurred during the
five (5) year period prior to this Agreement.
Section 3.10 Compliance with Laws. To the Seller's knowledge, Seller has
complied with all laws, regulations, rules and orders of any governmental
department or agency or any other commission, board, agency or instrumentality,
federal, state or local, or other requirements of law (collectively, "Laws")
affecting the Subject Assets in all material respects, and to the Seller's
knowledge, Seller is not in default under or in violation of any provision of
any federal, state or local law, regulation, rule or order in any material
respect. Seller has not received notice of any such actual or potential
non-compliance, defaults or violations.
Section 3.11 Products. The Products sold by Seller conform to and meet or
exceed the standards required by all applicable Laws, ordinances and regulations
now in effect within the markets in which such products are sold in all material
respects. Seller has not received notice of, and has no reason to believe that
its products do not conform to and meet or exceed such standards, or that any
such legislation, ordinance or regulation may be adopted within the markets in
which such Products are sold in all material respects.
Section 3.12 Warranty Claims. Schedule 3.12 contains an accurate list of
details or summaries of warranty claims relating to the Business during the last
five (5) years. No claims of customers or others based on an alleged or admitted
defect of material, workmanship or design or otherwise in or in respect of any
of Seller's products are presently pending or threatened whether pending or
threatened, shall constitute assumed liabilities of the Purchaser.
Section 3.13 FIRPTA. Seller is not a non-resident alien individual, foreign
person, or foreign corporation for purposes of the provision of Sections 871,
882 or 1445 of the Code. On or before the Closing Date, Seller will deliver to
Purchaser qualifying statements as defined in Section 1445 of the Code or
executed affidavits pursuant to Section 1445 of the Code.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser warrants and represents to, and agrees with, Seller as
follows:
Section 4.01 Organization. DCCO is a corporation duly organized, and DWS is
a corporation duly organized, each validly existing and in good standing under
the laws of its jurisdiction of organization, and has all requisite corporate or
other power and authority and all necessary governmental approvals to own, lease
and operate its properties and to carry on its business as now being conducted,
except where the failure to be so organized, existing and in good standing or to
have such power, authority and governmental approvals would not have a material
adverse effect on Purchaser. Purchaser is duly qualified or licensed to do
business and is in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it
makes such qualification or licensing necessary, except where the failure to be
so duly qualified or licensed and in good standing would not have a material
adverse effect on Purchaser.
Section 4.02 Corporate Authorization; Validity of Agreement; Necessary
Action. Purchaser has full corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. As of the
Closing Date, the execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions contemplated
hereby will have been duly and validly authorized and no other corporate action
or proceedings on the part of Purchaser will be necessary to authorize the
execution and delivery by Purchaser of this Agreement and the consummation by
Purchaser of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Purchaser, and, assuming this Agreement constitutes
valid and binding obligations of Seller, constitutes a valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms.
Section 4.03 Consents and Approvals; No Violations. Neither the execution,
delivery or performance of this Agreement by Purchaser, nor the consummation by
Purchaser of the transactions contemplated hereby, nor compliance of Purchaser
with any of the provisions hereof will: (i) conflict with or result in any
breach of any provision of the organizational documents of Purchaser; (ii)
require any filing with, or permit, authorization, consent or approval of, any
governmental entity (except where the failure to obtain such permits,
authorizations, consents or approvals or to make such filings would not have a
material adverse effect on Purchaser, or would not, or would not be reasonably
likely to, materially impair the ability of Purchaser to consummate the
transactions contemplated hereby); (iii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, amendment, cancellation or acceleration)
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, guaranty, other evidence of indebtedness, lease, license, contract,
agreement or other instrument or obligation to which Purchaser is a party or by
which Purchaser or any of its respective properties or assets may be bound; or
(iv) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Purchaser or any of its properties or assets, except in the case
of clauses (iii) and (iv) for violations, breaches or defaults that would not
have a material adverse effect on Purchaser, or would not, or would not be
reasonably likely to, materially impair the ability of Purchaser to consummate
the transactions contemplated hereby.
Section 4.04 Brokerage and Finder's Fees. No shareholder, officer, director
or agent of Purchaser has incurred any liability to any broker, finder or agent
for any brokerage fees, finder's fees or commissions with respect to the
transactions contemplated hereby.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser under this Agreement are, at its option,
subject to satisfaction of the following conditions at or prior to the Closing
Date:
Section 5.01 Representations True. The representations and warranties of
Seller contained in this Agreement are true, complete and accurate in all
material respects on and as of the Closing Date to the same extent and with the
same force and effect as if made on such date, except as affected by the
transactions contemplated under this Agreement.
Section 5.02 All Consents Obtained. All approvals or consents required to
be obtained by Seller have been obtained from all local, state and federal
departments and agencies, from all other commissions, boards, agencies and from
any other person or entity whose approval or consent is necessary to consummate
the transactions contemplated under this Agreement.
Section 5.03 Performance and Obligations. Seller has duly performed all
obligations, covenants and agreements undertaken by Seller in this Agreement and
has complied with all terms and conditions applicable to them under this
Agreement to be performed and complied with on or before the Closing Date.
Section 5.04 Receipt of Documents by Purchaser. Purchaser has received:
(a) a certificate executed by the President and Secretary (or persons
with comparable duties) of Seller certifying as to the
fulfillment of the matters contained in Section 5.01
(Representations True), Section 5.02 (All Consents Obtained),
Section 5.03 (Performance and Obligations) and Section 5.06
(Delivery of Books and Records) hereof;
(b) a certificate of good standing from the Secretary of State of the
State of Florida, as of a date not more than five (5) days prior
to the Closing, and a certificate of good standing or equivalent
thereof, issued by the Secretary of State of the State of
Georgia;
(c) certified copies of resolutions duly adopted by the shareholders
and board of directors of Seller approving this Agreement and the
transactions contemplated pursuant thereto; and
Section 5.05 No Litigation. No suit, action, or other proceeding is
threatened or pending before any court or governmental agency in which it will
be, or it is, sought to restrain or prohibit or to obtain damages or relief in
connection with this Agreement or the consummation of this Agreement, or which
is likely to materially and adversely affect the value of the Subject Assets.
Section 5.06 Delivery of Books and Records. Seller has delivered or made
available to Purchaser the Books and Records , including, without limitation,
copies of all Assumed Contracts and files and records relating to employees that
are hired by the Purchaser in accordance with Section 11.03.
Section 5.07 Instruments of Transfer. Seller has executed and delivered to
Purchaser good and sufficient instruments of transfer and conveyance
transferring and conveying to Purchaser title to all of the Subject Assets as
required pursuant to Section 1.05 (Method of Conveyance and Transfer) hereof.
The instruments of transfer and conveyance must be in form and substance
reasonably satisfactory to Purchaser and its counsel, which form is usual and
customary for transferring and conveying the type of property involved under the
laws of the jurisdictions applicable to such transfer and conveyance.
Section 5.08 Distribution Agreement. Seller's affiliate, Just-Rite Supply,
Inc., shall have executed the Distribution Agreement (the "Distribution
Agreement"), attached hereto as Exhibit ___, and by reference made a part
hereof.
Section 5.09 Guaranty. Seller's parent company, Imperial Industries, Inc.,
shall have delivered a guaranty (the "Guaranty") to Purchaser, guaranteeing the
obligations of Seller relating to the representations and warranties and the
indemnification provisions under this Agreement, together with the obligations
of Just-Rite Supply, Inc. to pay the Shortfall Requirement (as that term is
defined in the Distribution Agreement) under Section 10 of the Distribution
Agreement. In the event of a sale of all or substantially all of the assets of
Imperial Industries, Inc., the obligations set forth in the Guaranty shall be
assumed by the purchaser of such assets and Purchaser shall receive prior
written notice of such proposed assumption. Section 5.10 Absence of
Changes.There has been no material adverse change in the Subject Assets since
the date of this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are, at their option,
subject to satisfaction of the following conditions at or prior to the Closing
Date:
Section 6.01 Representations True. The representations and warranties of
Purchaser contained in this Agreement are true, complete and accurate in all
material respects on and as of the Closing Date to the same extent and with the
same force and effect as if made on such date, except as affected by the
transactions contemplated under this Agreement.
Section 6.02 Performance of Obligations. Purchaser has duly performed all
obligations, covenants and agreements undertaken by Purchaser in this Agreement
and has complied with all the terms and conditions applicable to them under this
Agreement to be performed or complied with on or before the Closing Date.
Section 6.03 Receipt of Documents by Seller.
(a) Seller has received that portion of the Purchase Price required
to be paid at Closing under Article II hereof.
(b) Seller has received a certificate executed by the President and
Secretary (or persons with comparable duties) of Purchaser
certifying as to the fulfillment of the matters contained in
Section 6.01 (Representations True) and Section 6.02 (Performance
of Obligations) hereof;
(c) Seller has received certified copies of resolutions duly adopted
by the Board of Directors of Purchaser, as the case may be,
approving this Agreement and the transactions contemplated
hereby;
Section 6.04 No Litigation. No suit, action, or other proceeding is
threatened or pending before any court or governmental agency in which it will
be, or it is, sought to restrain or prohibit or obtain material damages or
relief from Seller in connection with this Agreement or the consummation of this
Agreement.
Section 6.05 Distribution Agreement. DWS shall have executed the
Distribution Agreement.
ARTICLE VII
CLOSING
The closing of the transactions contemplated by this Agreement (the
"Closing") will take place on July 25, 2005 at the offices of Seller at 10:00 AM
EDT or such other place or date mutually agreeable to the parties (the "Closing
Date"). If the Closing has not taken place by such date by reason of failure of
fulfillment of any condition or conditions contained in this Agreement, then the
non-breaching party may, by written notice to the other party, extend the
Closing Date for a period of thirty (30) days to permit fulfillment of such
condition or conditions. Unless the parties otherwise agree in writing, if the
Closing has not occurred by July 30, 2005, then this Agreement will be deemed to
have been terminated and abandoned, subject to the legal rights and remedies of
either party arising out of the other party's breach of any of the provisions of
this Agreement. The parties will in good faith use all reasonable efforts to
achieve the Closing.
ARTICLE VIII
TERMINATION OF AGREEMENT
This Agreement and the transactions contemplated under it may be terminated
and abandoned at any time prior to the Closing Date:
(a) by mutual consent in writing of Purchaser, on the one hand, and
Seller, on the other hand;
(b) by Purchaser, on the one hand, or Seller, on the other hand, if,
in the case of Purchaser, there has been a material
misrepresentation or breach of representation or warranty in the
representation and warranties of Seller made under this Agreement
or if, in the case of Seller, there has been a material
misrepresentation or breach of representation or warranty in the
representations and warranties of Purchaser made under this
Agreement;
(c) by Purchaser if all or a material portion of the Subject Assets
have been materially damaged or destroyed before the Closing; or
(d) by Purchaser, if any of the conditions contained in Article 5
(Conditions Precedent to Obligations of Purchaser) hereof, or by
Seller, if any of the conditions contained in Article 6
(Conditions Precedent to Obligations of Seller) hereof,
respectively, have not been fulfilled in all material respects.
Any termination pursuant to this Article 8 will not affect the obligations
of the parties under Article 13 (Expenses) or Section 17.05 (Right of
Inspection) hereof, and will be without prejudice to the terminating party's
legal rights and remedies by reason of any breach of this Agreement occurring
prior to such termination. Notwithstanding anything in this Agreement to the
contrary, if, on the Closing Date, Purchaser: (i) has complied with all of the
conditions to Closing contained in Article 6 (Conditions Precedent to
Obligations of Seller) hereof; (ii) has notified Seller of their intention to
consummate the transactions contemplated under this Agreement; and (iii) is
ready and able to pay Seller the purchase price and furnish evidence to that
effect to Seller, and if the Closing does not then occur due to the refusal of
Seller to so consummate the transactions contemplated under this Agreement,
Purchaser will be entitled to specifically enforce the terms of this Agreement
in a court of competent jurisdiction, it being acknowledged that monetary
damages due Purchaser in such case cannot be adequately determined at law.
Notwithstanding anything in this Agreement to the contrary, if, on the Closing
Date, Seller: (i) has complied with all of the conditions to Closing contained
in Article 6 (Conditions Precedent to Obligations of Purchaser) hereof; (ii) has
notified Purchaser of their intention to consummate the transactions
contemplated under this Agreement; and (iii) is ready and able to deliver the
Subject Assets to Seller, and if the Closing does not then occur due to the
refusal of Purchaser to so consummate the transactions contemplated under this
Agreement, in addition to any other remedy that may be available to Seller,
Seller will be entitled to specifically enforce the terms of this Agreement in a
court of competent jurisdiction, it being acknowledged that monetary damages due
Seller in such case may not be adequately determined at law.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; DISPUTES
Section 9.01 Survival of Covenants, Agreements, Representations, and
Warranties.
(a) Representations and Warranties. Notwithstanding the Closing of
the transactions contemplated under this Agreement, or any
investigation made by or on behalf of any party to this
Agreement, the representations and warranties of Seller and
Purchaser contained in this Agreement or in any certificate or
Schedule furnished or to be furnished pursuant to this Agreement,
will survive the Closing for a period of one (1) year, except
that the representation and warranty of Seller set forth in
Section 3.05 (Taxes) in respect of the absence of levies, liens
or judgments shall survive so long as any applicable statute of
limitations has not expired. The representations or warranties of
Seller contained in Section 3.02 (Authority of Seller; Consents)
and Section 3.13 (Intellectual Property Rights) hereof shall have
no expiration date. However, as to any breach of, or misstatement
in, any such representation or warranty as to which the
non-breaching party has given notice to the breaching party on or
prior to the expiration of the applicable period, as above set
forth, the same will continue to survive beyond said period, but
only as to the matters contained in such notice.
(b) Covenants and Agreements. The covenants and agreements set forth
herein shall have no expiration date.
(c) Claims. Claims for indemnification under this Article 9 (Survival
of Representations and Warranties; Indemnification; Disputes) for
breaches of representations and warranties must be made within
the periods of limitation set forth in this Section 9.01
(excluding for these purposes claims for fraud or intentional
misrepresentation, and claims for breaches of covenants or
agreements); provided, however, that in the event a breach can
reasonably be construed as a breach of either a representation
and warranty, on the one hand, or a covenant or agreement, on the
other hand, such breach shall be construed as a breach of a
covenant or agreement for purposes of this Section 9.01.
Section 9.02 Seller's Indemnification. Seller will indemnify and save
harmless Purchaser and its subsidiaries, shareholders, directors, officers,
employees and agents from any and all costs, expenses, losses, damages and
liabilities (including, without limitation, reasonable legal fees and expenses)
(collectively, the "Damages") incurred or suffered, directly or indirectly, by
any of them resulting from or attributable to:
(a) the breach of, or misstatement in, any one or more of the
representations, warranties, covenants or agreements of Seller
made in or pursuant to this Agreement;
(b) any claims, demands, suits, investigations, proceedings or
actions by any third party containing or relating to allegations
that, if true, would constitute a breach of, or misstatement in,
any one or more of the representations or warranties of Seller
made in or pursuant to this Agreement;
(c) any liability of Seller for claims of customers or others based
on an alleged or admitted defect of material, workmanship or
design or otherwise in or in respect of any of Seller's products
manufactured by the Seller; or
(d) any and all obligations, debts or other liabilities of Seller not
expressly assumed by Purchaser, including Excluded Liabilities,
pursuant to this Agreement;
Section 9.03 Purchaser's Indemnification. Purchaser will indemnify and save
harmless Seller from any and all Damages incurred or suffered directly or
indirectly by Seller resulting from or attributable to
(a) the breach of, or misstatement in, any one or more of the
representations or warranties of Purchaser made in or pursuant to
this Agreement.
(b) any claims, demands, suits, investigations, proceedings or
actions by any third party containing or relating to allegations
that, if true, would constitute a breach of, or misstatement in,
any one or more of the representations or warranties of Purchaser
made in or pursuant to this Agreement;
(c) any liability of Purchaser for claims of customers or others
based on an alleged or admitted defect of material, workmanship
or design or otherwise in or in respect of any products sold by
the Purchaser following the Closing Date; or
(d) any and all obligations, debts or other liabilities of Purchaser
not expressly arising from the operation of the Subject Assets
following Purchaser's possession of the Subject Assets;
Section 9.04 Defense of Claim. In case any party (the "Indemnified Party")
has received actual notice of any claim asserted or any action or administrative
or other proceeding commenced in respect of which claim, action or proceeding
indemnity properly may be sought against the other party (the "Indemnifying
Party") pursuant to this Agreement, Indemnified Party will give notice in
writing to Indemnifying Party. Within ten (10) days after receipt of such
notice, Indemnifying Party may give Indemnified Party written notice of their
election to conduct the defense of such claim, action or proceeding at their own
expense. If Indemnifying Party has given Indemnified Party such notice of
election to conduct the defense, Indemnifying Party may conduct the defense at
their expense, but Indemnified Party will nevertheless have the right to
participate in the defense, but such participation will be solely at the expense
of Indemnified Party, without a right of further reimbursement. If Indemnifying
Party has not so notified Indemnified Party in writing (within the time above
provided) of its election to conduct the defense of such claim, action or
proceeding, Indemnified Party may (but need not) conduct, at Indemnifying
Party's expense, the defense of such claim, action or proceeding. Indemnified
Party may at any time notify Indemnifying Party of Indemnified Party's intention
to settle, compromise or satisfy any such claim, action or proceeding (the
defense of which Indemnifying Party have not previously elected to conduct) and
may make such settlement, compromise or satisfaction (at Seller' expense) unless
Indemnifying Party notify Indemnified Party in writing (within twenty (20) days
or such shorter period of time if required by the terms of the proposed
settlement, but in no event less than five (5) days) after receipt of such
notice of intention to settle, compromise or satisfy) of their election to
assume (at their sole expense) the defense of any such claim, action or
proceeding and promptly take appropriate action to implement such defense. Any
settlement, compromise or satisfaction made by Indemnified Party, or any such
final judgment or decree entered in, any claim, action or proceeding defended
only by Indemnified Party, regardless of the amount or terms, will be deemed to
have been consented to by, and will be binding on, Indemnifying Party as fully
as though they alone, without Indemnified Party or any of them, had assumed the
defense and a final judgment or decree had been entered in such proceeding or
action by a court of competent jurisdiction in the amount of such settlement,
compromise, satisfaction, judgment or decree. If Indemnifying Party has elected
under this Section 9.04 to conduct the defense of any claim, action or
proceeding, then Indemnifying Party will be obligated to pay the amount of any
adverse final judgment or decree rendered with respect to such claim, action or
proceeding subject to the terms of this Agreement. If Indemnifying Party elects
to settle, compromise or satisfy any claim, action or proceeding defended by
them, the cost of any such settlement, compromise or satisfaction will be borne
entirely by Indemnifying Party and may be made only with the consent of
Indemnified Party, which consent will not be unreasonably withheld. Indemnified
Party and Indemnifying Party will use all reasonable efforts to cooperate fully
with respect to the defense of any claim, action or proceeding covered by this
Section 9.03.
Section 9.05 Indemnification Limitations.
(a) Any of the foregoing notwithstanding, neither Purchaser, on the
one hand, nor Seller, on the other hand, will have any right to
indemnification for breaches of covenants, agreements,
representations, and warranties unless and until the aggregate
Damages indemnifiable by the indemnifying party exceed Ten
Thousand Dollars ($10,000), and thereafter will be entitled to
the Damages from the first dollar. In no event shall the
aggregate indemnification to be paid by the Seller or the
Purchaser under this Agreement exceed the Purchase Price.
Notwithstanding any other provision of this Agreement, the
Distribution Agreement shall not be subject to the
indemnification cap set forth in this Section 9.05.
(b) The limitations on indemnification set forth in paragraph (a) of
this Section 9.06 shall not be applicable to any Damages
resulting from or arising out of Excluded Liabilities, or
breaches of covenants or agreements, including, without
limitation, the covenants and agreements contained in Section
1.03 (Assumed Liabilities), Section 1.04 (Excluded Liabilities),
and Section 11.04 (Intellectual Property Matters) hereof. The
parties hereto acknowledge and agree that in the event that there
is a breach of one or more provisions of this Agreement, and such
breach can reasonably be construed as a breach of either a
representation and warranty, on the one hand, or a covenant or
agreement, on the other hand, such breach shall be construed as a
breach of a covenant or agreement for purposes of this Section
9.05.
ARTICLE X
CONDUCT PRIOR TO CLOSING DATE
Section 10.01 Continuation of Business. Until the September 30, 2005,
Seller will not do or suffer to be done any of the following in respect of the
Business, not in the ordinary and usual course of business, without the prior
written consent of Purchaser, such consent not to be unreasonably withheld or
delayed:
(a) Dispose or contract to dispose of any Subject Assets or any
interest in any Subject Assets;
(b) Enter into any obligations or commitments for future payments
other than in connection with fulfilling currently existing
customer purchase orders, for Seller's own benefit, which would
be assumed by the Purchaser;
(c) Enter into any capital or operating lease, which would be assumed
by the Purchaser;
(d) Encumber any Subject Assets (other than in the ordinary course of
business);
(e) Negotiate with anyone other than Purchaser for, or participate
with anyone other than Purchaser in, the acquisition of all or
any part of the Subject Assets;
(f) Enter into any contracts related to the Subject Assets that would
be assumed by Purchaser, except in the ordinary course of
business and consistent with past practice; and
Section 10.02 Preservation of Business. Seller will prior to September 30,
2005 use its reasonable efforts, in respect of the
Subject Assets:
(a) preserve intact its present organization and the Seller's
Employees;
(b) preserve its markets, order flow and operations, actual and
potential, and its advantageous relationships with all persons
having business dealings with them;
(c) preserve and maintain in force all their licenses, certificates,
leases, contracts, permits, registrations, franchises,
confidential information, Intellectual Property Rights and
applications for any of the same, and other similar rights.
Seller will maintain in force all property, casualty, crime,
life, directors, officers and other forms of insurance and bonds
which they presently carry in respect of the Business; and
(d) not in any way modify or alter its business relationships nor
sign any new agreements with B&L Distributing or All South.
Section 10.03 Consents and Approvals. Seller and Purchaser will use all
commercially reasonable efforts to obtain all necessary consents and approvals
of all persons, firms, entities and governmental authorities to the consummation
of the transactions contemplated by this Agreement.
ARTICLE XI
ADDITIONAL COVENANTS
Section 11.01 Allocation of Taxes; Filing Responsibility. Except as
otherwise specifically agreed to herein, and only as it relates to the Business
or Subject Assets, Seller shall file all tax returns and pay all taxes for all
taxable periods ending on or before September 30, 2005.
Section 11.02 . Authorization to use Subject Assets. The Purchaser hereby
authorizes and grants a license, free of charge, to the Seller to continue to
use the Subject Assets conveyed at the Closing to Purchaser for use by the
Seller in the continuation of the Seller's Business through the date set forth
in Section 17.03 herein.
Section 11.03 Cessation of Operations. Within a reasonable time after the
Closing, but in any event not later than September 30, 2005, Seller will cease
all operations in respect of the Business except for activities necessary to
comply with the terms of this Agreement, including Section 17.03 herein and the
other agreements contemplated hereby. Seller agrees that, from and after
September 30, 2005, Seller, its parent, affiliates and subsidiaries shall cease
use of the name "Acrocrete" and all variations thereof.
Section 11.04 Employees.
(a) Within ten (10) days prior to September 30, 2005, Purchaser shall
provide a list of Seller's employees to whom the Purchaser would
like to extend a written offer of employment. Within five (5)
days thereafter, Purchaser shall extend a written offer of
employment to the employees on such written list. Seller will
terminate the employment of Seller's employees who accept
Purchaser's offer of employment effective September 30, 2005. In
the event any notice is required under the Worker Adjustment
Retraining Notification Act or other applicable plant closure
law, such notice will be the sole responsibility of Seller.
(b) Seller hereby covenant and agree that any liability or obligation
resulting from the termination of the employment of any employee
of Seller, whether claims for severance payments or other claims
or other claims, shall be the responsibility of Seller, and
Seller will indemnify and hold harmless Purchaser in connection
with same.
(c) Seller shall release, and shall notify of such release, the
Seller's employees who accept Purchaser's offer of employment,
upon termination of each Seller's Employee's employment, from any
obligations of confidentiality or non-competition solely as to
such employees' employment with the Purchaser.
(d) Notwithstanding any other provision of this Agreement, Purchaser
agrees that it will not, as a part of this transaction, solicit
Xxxxx Xxxxxxx to terminate his employment with Seller or
otherwise directly or indirectly offer employment to Xxxxx
Xxxxxxx for a period of two (2) years following September 30,
2005, unless Seller and its affiliates terminate Xxxxx Xxxxxxx'
employment.
Section 11.05 Intellectual Property Matters. At the Closing, Seller shall
convey to Purchaser the confidential formula, testing data and technical
information (the "Testing Codes") for the Products set forth on Schedule 11.05
herein subject to the license set forth in Section 11.02. Seller covenants and
agrees that the Testing Codes will be kept strictly confidential.
Section 11.06 Warranty Claims. Purchaser, on the one hand, and Seller, on
the other hand, agree that if after the Closing Date, there are warranty claims
of customers or others based on an alleged or admitted defect of material,
workmanship or design or otherwise in or in respect of any products manufactured
or produced by Seller prior to the Closing Date, all of which shall constitute
Excluded Liabilities, then Purchaser will deliver to Seller a written
description of such claim (a "Warranty Claim Request"), and Seller shall proceed
to take any remedial action or conduct repairs reasonably necessary to satisfy
any such claim in the Seller's discretion In the event that Seller refuses to
take such remedial action to satisfy such claim then Purchaser may seek
reimbursement by Seller to Purchaser for such claim in accordance with and
subject to Section 9.04 (Defense of Claim) hereof. For purposes of this Section
11.06 and for the removal of doubt, warranty claims for products manufactured by
Seller shall be the responsibility of Seller and warranty claims for products
manufactured by Purchaser shall be the responsibility of Purchaser.
Section 11.07 Misdirected Receivables. Following September 30, 2005, Seller
will promptly forward or remit to Purchaser, by endorsement or otherwise, all
collections of receivables erroneously received by Seller and (ii) Purchaser
will promptly forward or remit to Seller by endorsement or otherwise, all
collections of receivables erroneously received by Purchaser, in each case
arising out of sales or shipments on or following September 30, 2005 (i.e., for
invoices dated on or after September 30, 2005).
Section 11.08 Commercial/General Liability Insurance. Until September 30,
2005, Seller will maintain policies in regard to the commercial general
liability insurance, with a minimum benefit of at least TwoMillion Dollars
($2,000,000.00) and provide a copy of such policy, and evidence that the premium
due has been paid, to Purchaser. Seller further agrees to maintain insurance
coverage on the Equipment at an appropriate level until the Equipment is
delivered to the possession of Purchaser.
Section 11.09 Non-Compete. From and after September 30, 2005, Seller and
its' affiliates, executive officers and directors shall not directly or
indirectly engage anywhere in the Americas in a manufacturing business that
competes with the Business for the term of the Distribution Agreement.
Notwithstanding anything herein to the contrary, in the event there is a change
of control of the Seller's parent company Imperial Industries, Inc., prior to
the end of the non-competition term, the non-competition agreement shall expire
and shall not be enforceable on Imperial, its successors and any officer or
director of Imperial and its subsidiaries. For purposes of this Agreement
"Change of Control" means (a) the merger or consolidation, or tender offer or
other business combination that results in the stockholders of Imperial prior to
such merger, consolidation, tender offer or other business combination holding
less than a majority of the voting power of the surviving entity; (b) the sale,
conveyance, exchange or transfer of all or substantially all of the assets of
Imperial, or (c) the acquisition by any person, entity or "group" within the
meaning of ss. 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of a majority of the combined voting power of Imperial's then
outstanding voting securities entitled to vote generally in the election of
directors. For the purposes of this definition, "control" shall mean the
possession directly or indirectly, of the power to direct or cause the direction
of the management or policies, whether through the ownership of voting
securities by contract or otherwise. Termination of the non-compete herein based
upon a Change of Control shall not affect the obligations of the parties under
the Distribution Agreement; provided however, in the event that the Distribution
Agreement is terminated then the Non-Compete shall terminate as of the
termination of the Distribution Agreement.
ARTICLE XII
ASSIGNMENT; THIRD PARTIES; BINDING EFFECT
The rights under this Agreement are not assignable nor are the duties
delegable by a party without the written consent of the other parties first
having been obtained, and any attempted assignment or delegation without such
consent will be null and void. Notwithstanding the foregoing, Purchaser may
assign its rights and obligations hereunder to an affiliate. Nothing contained
in this Agreement is intended to convey upon any person or entity, other than
the parties and their successors in interest and permitted assigns, any rights
or remedies under or by reason of this Agreement unless expressly stated. All
covenants, agreements, representations and warranties of the parties contained
in this Agreement are binding on and will inure to the benefit of Purchaser and
Seller, and their respective successors, heirs and permitted assigns.
ARTICLE XIII
EXPENSES
Purchaser, on the one hand, and Seller, on the other hand, will bear their
own respective expenses, including, without limitation, counsel and accountants'
fees, in connection with the preparation and negotiation of, and transactions
contemplated under, this Agreement.
ARTICLE XIV
NOTICES
All notices, requests, demands and other communications under this
Agreement must be in writing and will be deemed duly given, unless otherwise
expressly indicated to the contrary in this Agreement: (i) when personally
delivered; (ii) upon receipt of a telephonic facsimile transmission with a
confirmed telephonic transmission answer back; (iii) three (3) days after having
been deposited in the United States mail, certified or registered, return
receipt requested, postage prepaid; or (iv) one (1) business day after having
been dispatched by a nationally recognized overnight courier service, addressed
to the parties or their permitted assigns at the following addresses (or at such
other address or number as is given in writing by either party to the other) as
follows:
To Purchaser: Degussa Construction Chemicals
Operations, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Vice President
Degussa Wall Systems, LLC
0000 Xx. Xxxxx Xxxxx Xxxx, Xxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: President
With a copy to: Degussa Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: General Counsel
To Seller: Acrocrete, Inc.
c/o Imperial Industries, Inc.
0000 XX 00xx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxx, Xx.
With a copy to: Xxxxx X. Xxxxxx, P. A.
00000 X. X. 00xx Xxxxxx
Xxxxx Xxxxxxx, Xx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
ARTICLE XV
REMEDIES NOT EXCLUSIVE
No remedy conferred by any of the specific provisions of this Agreement is
intended to be exclusive of any other remedy, and each and every remedy will be
cumulative and will be in addition to every remedy given under this Agreement or
now or subsequently existing, at law or in equity, by statute or otherwise. The
election of any one or more remedies by Purchaser, on the one hand, or Seller,
on the other hand, will not constitute a waiver of the right to pursue other
available remedies.
ARTICLE XVI
DISCLOSURE OF CONFIDENTIAL INFORMATION
Except as may be required by law or necessary in connection with any
dealings with any public agency or authority, from and after the Closing Date,
neither party hereto will disclose, disseminate, divulge, discuss, copy or
otherwise use or suffer to be used, in competition with, or harmful to the
interests of, the other party any information (written or oral), documents,
lists or other data of or respecting any aspect of the Subject Assets or the
Business.
ARTICLE XVII
MISCELLANEOUS
Section 17.01 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same document.
Section 17.02 Captions and Section Headings. Captions and Section headings
are for convenience only, are not a part of this Agreement and may not be used
in construing it.
Section 17.03 Possession of Subject Assets. Except as otherwise set forth
herein, possession of the Subject Assets will be given to Purchaser as set forth
in Section 1.01 herein. Possession of the Equipment will be given to Purchaser
on the later of a) September 30, 2005 or b) the date on which the Seller ceases
production of the Product at its Kennesaw, Georgia facility, but in no case
later than December 31, 2005. Notwithstanding anything herein to the contrary,
the Seller shall be permitted to continue to manufacture Product until December
31, 2005 as part of the transition of the Subject Assets to the Purchaser.
Purchaser will not acquire any title to the Subject Assets until possession has
been given to it in accordance with this Section 17.03, and, accordingly, all
risk of loss with respect to the Subject Assets will be borne by Seller until
possession has been given to Purchaser. Seller agrees that it will not create or
allow to be imposed any new lien, encumbrance or other obligation between the
Closing Date and the date on which the assets have been delivered to Purchaser.
Section 17.04 Waivers. Any failure by any of the parties to comply with any
of the obligations, agreements or conditions set forth in this Agreement may be
waived by the other party or parties, but any such waiver will not be deemed a
waiver of any other obligation, agreement or condition contained herein.
Section 17.05 Right of Inspection. From and after the date of this
Agreement to the Closing Date, Seller will give to Purchaser and its counsel,
accountants and other representatives, full access during normal business hours
to the offices, properties, agreements, records and affairs of Seller that
pertain to the Subject Assets, and will furnish copies of all Assumed Contracts
and other instruments as Purchaser or its counsel may reasonably request related
to the Subject Assets. Such investigation will not affect the warranties and
representations and warranties of Seller under this Agreement. All such
information will be treated confidentially and will be used only for the
purposes intended. If the transactions contemplated under this Agreement do not
take place, all documents and other property of Seller will be returned and all
disclosures and information given to Purchaser as contemplated under this
Agreement will be treated as confidential and not disclosed to other unless
disclosed publicly by Seller or other third parties without fault on the part of
Purchaser, or unless otherwise required by law.
Section 17.06 Amendments, Supplements or Modifications. Each of the parties
agrees to cooperate in the effectuation of the transactions contemplated under
this Agreement and to execute any and all additional documents to take such
additional action as is reasonably necessary or appropriate for such purposes.
Section 17.07 Entire Agreement. This Agreement, including any certificate,
schedule, exhibit or other document delivered pursuant to its terms, constitutes
the entire agreement between the parties. There are no verbal agreements,
representations, warranties, undertakings or agreements between the parties, and
this Agreement may not be amended or modified in any respect, except by a
written instrument signed by the parties to this Agreement.
Section 17.08 Governing Law; Jurisdiction. This Agreement shall be governed
and construed according to the laws of the State of Florida without giving
effect to any choice or conflict of law provision or rule. Each party
irrevocably and unconditionally agree that: (a) any suit, action or legal
proceeding arising out of or relating to this Agreement and the subject matter
thereof shall be brought in the courts of record of the State of Florida or the
United States District Courts in Florida, (b) consents to the jurisdiction of
each such court in any suit, action or proceeding, and (c) waives any objection
to the venue of any suit, action or proceeding in any such court.
Section 17.09 Knowledge. All references to "knowledge" of a party or "known
to" a party means the actual knowledge of a party after reasonable
investigation. Actual knowledge of any officer, director or supervisory employee
will be imputed to, and deemed to be actual knowledge of, that party, and
references to "knowledge" of Seller or "known to" Seller shall be deemed to
include the knowledge of each Seller individually or all Seller collectively.
Section 17.10 Press Releases. Prior to the Closing, neither party will
issue or cause the publication of any press release or other public announcement
with respect to this Agreement or the transactions contemplated under this
Agreement without the prior consent of the other party first obtained.
Section 17.11 Affiliate. For purposes of this Agreement, the term
"affiliate" or "affiliates" shall have the meaning set forth in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date first above written.
DEGUSSA CONSTRUCTION CHEMICALS
OPERATIONS, INC.
By: /s/ XXXXXXX X. XXXXXX
Name: XXXXXXX X. KOWTON
Title: VICE PRESIDENT CONTROLLER
DEGUSSA WALL SYSTEMS, INC.
By: /s/ XXXXXXX XXXXX
Name: XXXXXXX XXXXX
Title: PRESIDENT
ACROCRETE, INC.
By: /s/ XXXXXX X. XXXXX, XX.
Name: XXXXXX X. XXXXX
Title: PRESIDENT
LIST OF SCHEDULES
Schedules
