STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of September 26, 2005 (this
"Agreement"), by and among ASSET VALUE FUND LIMITED PARTNERSHIP, J. XXXXXX
XXXXXXX and G. XXXXX XXXXXXX ("Sellers"); and HALTER CAPITAL CORPORATION, a
Texas corporation ("Purchaser").
W I T N E S S E T H
WHEREAS, Sellers desire to sell to Purchaser a total of 2,293,810 shares
(the "Shares") of the common stock, par value $0.01 (the "Common Stock") of
General Devices, Inc., a Delaware Corporation (the "Company"), representing
63.8% of the Company's issued and outstanding shares of the Common Stock of the
Company, on the terms and conditions set forth in this Stock Purchase Agreement
("Agreement"), and
WHEREAS, Purchaser desires to buy the Shares on the terms and conditions
set forth herein, and
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows.
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1 Sale of the Shares. Subject to the terms and conditions herein set
forth, on the basis of the representations, warranties and agreements herein
contained, at the Closing Sellers shall sell, assign, transfer and deliver the
Shares to Purchaser, and Purchaser will purchase the Shares from the Sellers, in
the following respective amounts:
Seller Number of Shares
------ ----------------
Asset Value Fund Limited Partnership 1,580,971
G. Xxxxx Xxxxxxx 147,748
J. Xxxxxx Xxxxxxx 565,091
---------------
2,293,810
1.2 The Closing. The purchase and sale of the Shares (the "Closing") shall
take place at such place as Purchaser and Sellers may mutually agree ten (10)
days following the mailing of the Rule 14f-1 Statement, as set forth in Section
5.3(a), or such later date as Purchaser and Seller may mutually agree, herein
referred to as the "Closing Date".
1.3 Consideration and Payment for the Shares. In consideration for the
Shares, Purchaser shall pay to the Sellers a total purchase price equal of
$498,199.47 (the "Purchase Price"), which shall be paid as follows:
Name Amount
---- ------
Asset Value Fund Limited Partnership $343,375.83
G. Xxxxx Xxxxxxx 32,089.83
J. Xxxxxx Xxxxxxx 122,733.81
---------------
$498,199.47
1.4 Conditions to Closing. Purchaser's obligation to close shall be
conditional upon the completion to Purchaser's satisfaction of the following
matters:
(a) Completion to Purchaser's satisfaction of its due diligence examination
of the books, records and properties of the Company;
(b) Execution and delivery by G. Xxxxx Xxxxxxx of stock purchase agreements
pursuant to which he will deliver and sell a total of 200,000 shares of common
stock to third-party purchasers;
(c) The Company being in good standing and existence under Delaware law
with all franchise taxes current;
(d) The Company shall have unrestricted cash on deposit in a Company bank
account of at least $53,000.00; and
(e) As of the Closing Date, the Company shall have no liabilities, except
for the Assumed Liabilities.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers severally and not jointly represent, warrant and undertake to
the Purchaser that, except as set forth in the Disclosure Schedule:
2.1 Transfer of Title. (a) Sellers are the record and beneficial owners of
the Shares, free and clear of all liens, security interests, pledges,
encumbrances, charges, restrictions, demands and claims, of any kind or nature
whatsoever, whether direct or indirect or contingent, except for any restriction
on resale under federal and state securities laws.
(b) Agreement's Validity. This Agreement has been duly executed and
delivered by Sellers and constitutes a legal, valid and binding obligation of
Sellers, enforceable against Sellers in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
(c) No Preemptive Rights; Valid Issuance. The Shares are not subject to any
contractual preemptive rights, tag-along rights, or similar rights granted by
Sellers.
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2.2 No Governmental Action Required. Except for the filing of reports with
the Securities and Exchange Commission ("SEC") of the reports and other
documents set forth in Section 5.3 herein), the execution and delivery by the
Sellers of this Agreement does not and will not, and the consummation by Sellers
of the transactions contemplated hereby will not, require any action by or in
respect of, or filing with, any governmental body, agency or governmental
official.
2.3 Compliance with Applicable Law and Corporate Documents. The execution
and delivery by the Sellers of this Agreement does not and will not, and the
sale by the Sellers of the Shares and the consummation of the other transactions
contemplated by this Agreement do not and will not violate any provision of
applicable law or regulation or breach any agreement, judgment, injunction,
order, decree or other instrument binding upon the Sellers or any of their
assets, or result in the creation or imposition of any lien on any asset of the
Sellers.
2.4 Not a Voting Trust: No Proxies. None of the Shares are or prior to the
Closing Date will be subject to any voting trust or agreement. No person holds
or has the right to receive any proxy or similar instrument with respect to the
Shares. Except as provided in this Agreement, no Seller is a party to any
agreement which offers or grants to any person the right to purchase or acquire
any of the Shares.
2.5 Survival of Representations. The representations and warranties herein
by the Sellers will be true and correct in all material respects on and as of
the Closing Date with the same force and effect as though said representations
and warranties had been made on and as of the Closing Date and will survive the
Closing Date as provided in Section 7.3(b).
2.6 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission payable Sellers in connection
with the transactions contemplated by this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COMPANY
Seller Asset Value Fund Limited Partnership ("AVF") represents, warrants
and undertakes to the Purchaser that, except as set forth on the Disclosure
Schedule:
3.1 Due Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with full
power and authority to own, lease, use, and operate its properties and to carry
on its business as and where now owned, leased, used, operated and conducted.
The Company has one subsidiary, GD Merger Sub, Inc., an inactive Delaware
corporation. The Company is not qualified to conduct business in any
jurisdiction other than the States of Delaware and New Jersey.
3.2 Authorized Capital, No Preemptive Rights, No Liens; Anti-Dilution. The
authorized capital of the Company is 12,000,000 shares of Common Stock, par
value $0.01 per share. The issued and outstanding capital stock of the Company
is 3,597,922 shares of Common Stock. All of the shares of capital stock have
been duly authorized, validly issued, and are fully paid and non-assessable. No
shares of capital stock of the Company are subject to preemptive rights or
similar rights of the stockholders of the Company or any liens or encumbrances
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imposed through the actions or failure to act of the Company, or otherwise. As
of the date hereof (i) there are no outstanding options, warrants, convertible
securities, scrip, rights to subscribe for, puts, calls, rights of first
refusal, tag-along agreements, nor any other agreements, understandings, claims
or other commitments or rights of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for any shares of capital
stock of the Company, or arrangements by which the Company is or may become
bound to issue additional shares of capital stock of the Company, and (ii) there
are no agreements or arrangements under which the Company is obligated to
register the sale of any of its securities under the Securities Act of 1933, and
(iii) there are no anti-dilution or price adjustment provisions contained in any
security issued by the Company (or in the Company's certificate of incorporation
or bylaws or in any agreement providing rights to security holders) that will be
triggered by the transactions contemplated by this Agreement. The Company has
furnished to Purchaser true and correct copies of the Company's certificate of
incorporation and bylaws.
3.3 Compliance with Applicable Law and Corporate Documents. To the best of
AVF's knowledge, the Company is in compliance with and conforms to all statutes,
laws, ordinances, rules, regulations, orders, restrictions and all other legal
requirements of any domestic or foreign government or any instrumentality
thereof having jurisdiction over the conduct of its businesses or the ownership
of its properties, except where the failure to so comply would not have a
material adverse effect on the business of the Company. The execution and
delivery by Sellers of this Agreement does not and will not, and the sale by
Sellers of the Shares and the consummation of the other transactions
contemplated by this Agreement do not and will not, breach any agreement,
judgment, injunction, order, decree or other instrument binding upon the Company
or any of its assets, or result in the creation or imposition of any lien on any
asset of the Company, except for breaches or liens that will not have a material
adverse affect on the business of the Company.
3.4 Financial Statements. (a) The Purchaser has received a copy of the
audited financial statements of the Company for the fiscal year ended December
31, 2004 and the unaudited financial statements for the six months ended June
30, 2005 ("Financial Statements"). The Financial Statements fairly present the
financial condition of the Company at the dates indicated and its results of
their operations and cash flows for the periods then ended. (b) Since June 30,
2005 (the "Balance Sheet Date"), there has been no material adverse change in
the assets or liabilities, or in the business or condition, financial or
otherwise, or in the results of operations or prospects, of the Company, whether
as a result of any legislative or regulatory change, revocation of any license
or rights to do business, fire, explosion, accident, casualty, labor trouble,
flood, drought, riot, storm, condemnation, act of God, public force or otherwise
and no material adverse change in the assets or liabilities, or in the business
or condition, financial or otherwise, or in the results of operation or
prospects, of the Company except in the ordinary course of business. (c) Since
the Balance Sheet Date, the Company has not suffered any damage, destruction or
loss of physical property (whether or not covered by insurance) affecting its
condition (financial or otherwise) or operations (present or prospective), nor
has the Company issued, sold or otherwise disposed of, or agreed to issue, sell
or otherwise dispose of, any capital stock or any other security of the Company
and has not granted or agreed to grant any option, warrant or other right to
subscribe for or to purchase any capital stock or any other security of the
Company or has incurred or agreed to incur any indebtedness for borrowed money.
(d) The Financial Statements are contained in the Company's reports and other
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documents filed with the SEC since the Company's formation (the "SEC Reports").
The SEC Reports are (i) accurate and complete, (ii) are not subject to any
outstanding SEC comment letters or inquiries, and (iii) do not contain any false
statement of fact or fail to state any fact necessary to make the facts stated
therein not misleading.
3.5 No Litigation. The Company is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or pending or
threatened governmental investigation. The Company is not subject to or in
default with respect to any order, writ, injunction, or decree of any federal,
state, local, or foreign court, department, agency, or instrumentality.
3.6 No Taxes. All United States federal, state, county, municipality local
or foreign income Tax returns and all other material Tax returns (including
information returns) that are required, or have been required, to be filed by or
on behalf of the Company have been or will be filed as of the Closing Date and
all Taxes due pursuant to such returns or pursuant to any assessment received by
the Company have been or will be paid as of the Closing Date. The charges,
accruals and reserves on the books of the Company in respect of taxes or other
governmental charges have been established in accordance with the tax method of
accounting. All returns that have been filed relating to Tax are true and
accurate in all material respects. No audit, action, suit, proceeding or other
examination regarding taxes for which the Company may have any liability is
currently pending against or with respect to the Company and neither AVF nor the
Company has received any notice (formally or informally) of any audit, suit,
proceeding or other examination. No material adjustment relating to any Tax
returns, no closing or similar agreement have been entered into or issued or
have been proposed (formally or informally) by any tax authority (insofar as
such action relate to activities or income of or could result in liability of
the Company for any Tax) and no basis exists for any such actions. The Company
has not changed any election, adopted or changed any accounting method or
period, filed any amended return for any Tax, settled any claim or assessment of
any Tax, or surrendered any right to claim any refund of any Tax, or consented
to any extension or waiver of the statute of limitations for any Tax.
3.7 Conduct of the Business. From and after the date of this Agreement
until the Closing Date:
(a) The Company has continued to be operated in the usual and ordinary
manner in which its business has been conducted in the past and during such
period. The Company has not made any expenditures or entered into any
commitments which, when compared to past operations of its business, are unusual
or extraordinary or outside the scope of the normal course of routine
operations;
(b) The Company has used its best efforts to maintain the good will
associated with its business, and the existing business relationships with its
agents, customers, lessors, key employees, suppliers and other persons having
relations with it;
(c) The Company has not entered into any contract, agreement or action, or
relinquished or released any rights or privileges under any contracts or
agreements, the performance, violation, relinquishment or release of which
could, on the date on which such contract or agreement was entered into, or such
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rights or privileges were relinquished or released, be reasonably foreseen to
have a material adverse effect on the business of the Company;
(d) The Company has not made, or agreed to make, any acquisition of stock
or assets of, or made loans to, any person not in the ordinary course of
business;
(e) The Company has not sold or disposed of any assets or created or
permitted to exist any encumbrance on its assets except (x) in the ordinary
course of business and which could not, on the date of such sale, disposition,
creation or permission, be reasonably foreseen to have a material adverse effect
or (y) as otherwise permitted by this Agreement;
(f) The Company has kept true, complete and correct books of records and
accounts with respect to its business, in which entries will be made of all
transactions on a basis consistent with past practices and in accordance with
the tax method of accounting consistently applied by the Company;
(g) The Company has paid current liabilities as and when they became due
and has paid or incurred no fees and expenses not in the ordinary course of its
business;
(h) There has been no declaration, setting aside or payment of any dividend
or other distribution in respect of any Shares or any other securities of the
Company (whether in cash or in kind);
(i) The Company has not redeemed, repurchased, or otherwise acquired any of
its securities or entered into any agreement to do so;
(j) The Company has not made any loan to, or entered into any other
transaction with, any of its directors, officers, and employees;
(k) The Company has not made or pledged to make any charitable or other
capital contribution outside the ordinary course of business; and
(l) There has not been any other occurrence, event, incident, action,
failure to act or transaction outside the ordinary course of business that would
have a material adverse effect on the business of the Company.
3.8 Liabilities.
(a) Except as set forth in the Financial Statements, the SEC Reports, and
the liabilities set forth on Schedule 3.8 (the "Assumed Liabilities"), the
Company has no liabilities or obligations.
(b) Except as set forth in the Disclosure Schedule, since June 30, 2005,
the Company has not:
(i) subjected to encumbrance, or agreed to subject to encumbrance, any
of its assets, tangible or intangible other than purchase money liens in
the ordinary course of business on equipment used in the conduct of
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business and incurred to finance the purchase price of the equipment
involved and which do not cover any other asset of the Company;
(ii) except as otherwise contemplated hereby, engaged in any
transactions affecting its business or properties not in the ordinary
course of business consistent with past practice or suffered any
extraordinary losses or waived any rights of substantial value except in
the ordinary course of business; or
(iii) other than in the ordinary course of business consistent with
past practice, granted or agreed to grant, or paid or agreed to pay any
increase in the rate of wages, salaries, bonuses or other remuneration of
any officer, director or consultant of the Company or any increase of 5% or
more in the rate of wages, salaries, bonuses or other remuneration of any
non-officer/director or employee or become a party to any employment
contract or arrangement with any of its directors, officers, consultants or
employees or become a party to any contract or arrangement with any
director, officer, consultant or employee providing for bonuses, profit
sharing payments, severance pay or retirement benefits, other than as set
forth in any Exhibit or Schedule hereto.
3.9 ERISA Compliance. The Company maintains no "employee benefit plan"
within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974 ("ERISA"), under which the Company has any current or future
obligation or liability or under which any employee of the Company has any
current or future right to benefits.
3.10 Insurance. The Disclosure Schedule includes a true and correct list of
all policies or binders of insurance of the Company in force, specifying the
insurer, policy number (or covering note number with respect to binders) and
amount thereof and describing each pending claim thereunder. Such policies are
in full force and effect. The Company is not in default with respect to any
provisions contained in any such policy or binder, nor are there any current
claims that it has failed to give any required notice of or present any claim
required to be presented under any such policy or binder in due and timely
fashion that would have a material adverse effect on the business of the
Company. There are no outstanding unpaid claims under any such policy or binder,
or claims for worker's compensation. The Company has not received notice of
cancellation or non-renewal of any such policy or binder.
3.11 Consents. The Disclosure Schedule lists all consents ("Consents") of
third parties required to be obtained as a result of the change of control of
the Company hereby.
3.12 Agreements. Except as set forth in the Disclosure Schedule or the SEC
Reports, the Company is not a party to any material agreement, loan, credit,
lease, sublease, franchise, license, contract, commitment or instrument. The
Disclosure Schedule identifies every loan or credit agreement, and every fully
or partially executory agreement or purchase order pursuant to which the Company
is obligated to deliver goods or perform services, pay for goods, services or
other property, or repay any loan, including, without limitation, any agreement
with present or former officers, directors, consultants, agents, brokers,
vendors, customers and/or dealers of any nature. True, correct and complete
copies of all such agreements have been delivered to Purchaser. The Company is
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not in default under any such agreement, loan, credit, lease, sublease,
franchise, license, contract, commitment, instrument or restriction, the default
under which would result in a material adverse effect on the business of the
Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Unless specifically stated otherwise, Purchaser represents and warrants
that the following are true and correct as of the date hereof and will be true
and correct through the Closing Date as if made on that date:
4.1 Agreement's Validity. This Agreement has been duly executed and
delivered by Purchaser and constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
4.2 Investment Intent. Purchaser is acquiring the Shares for its own
account for investment and not with a view to, or for sale or other disposition
in connection with, any distribution of all or any part thereof in violation of
any U.S. federal or state securities laws.
4.3 Restricted Securities. Purchaser understands that the Shares have not
been registered pursuant to the Securities Act or any applicable state
securities laws, that the Shares will be characterized as "restricted
securities" under federal securities laws, and that under such laws and
applicable regulations the Shares cannot be sold or otherwise disposed of
without registration under the Securities Act or an exemption therefrom.
4.4 Legend. It is agreed and understood by Purchaser that the Certificates
representing the Shares shall each conspicuously set forth on the face or back
thereof a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION ACCOMPANIED BY AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
4.5 Disclosure of Information. Purchaser acknowledges that it has been
furnished with information regarding the Company and its business, assets,
results of operations, and financial condition to allow Purchaser to make an
informed decision regarding an investment in the Shares. Purchaser represents
that it has had an opportunity to ask questions of and receive answers from the
Company regarding the Company and its business, assets, results of operation,
and financial condition.
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ARTICLE 5
COVENANTS OF THE PARTIES
5.1 Notices and Consents. AVF will, and will cause the Company to, give any
notices to third parties, and AVF will use its best efforts, and will cause the
Company to use its best efforts, to obtain any third-party Consents that the
Purchaser reasonably may request to consummate the transactions contemplated
hereby. Each of the Parties will (and AVF will cause the Company to) give any
notices to, make any filings with, and use its best efforts to obtain any
required authorizations, Consents, and approvals of governmental bodies.
5.2 Transition. Between the date of this Agreement and the Closing Date,
AVF will not take any action that is designed or intended to have the effect of
discouraging any lessor, licensor, customer, supplier, or other business
associate of the Company from maintaining the same business relationships with
the Company after the Closing as it maintained with the Company prior to the
Closing. AVF will refer all customer inquiries relating to the business of the
Company to the Purchaser from and after the Closing.
5.3 SEC Filings. (a) Purchaser shall prepare, and AVF shall, subject to
AVF's review, cause the Company to file with the SEC and transmit to all holders
of record of its securities, a Statement under Rule 14f-1 under the Securities
Exchange Act of 1934 (the "Exchange Act") disclosing the change to the Board of
Directors described in Section 6.2(c)(i) at least ten (10) days prior to the
Closing Date.
(b) Within four (4) business days following the Closing Date, Purchaser
shall cause the Company to file a Form 8-K disclosing the change of control
effected under this Agreement; and
(c) Sellers and Purchaser shall timely file all reports and other documents
required to be filed under Sections 13 and 16 of the Exchange Act.
5.4 Liabilities. Prior to Closing the Company shall have fully paid or
satisfied all of its liabilities and obligations, except for the Assumed
Liabilities.
ARTICLE 6 - THE CLOSING
6.1 Deliveries. The Closing shall occur as a single integrated transaction,
as follows.
(a) Delivery by Sellers. Sellers shall deliver to Purchaser:
(i) Certificates representing the Shares with duly executed stock
powers with signatures medallion guaranteed in form and substance
satisfactory to Purchaser;
(ii) copies of all books, records and documents relating to the
Company, including the corporate records and stock records of the
Company;
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(iii) any other such instruments, documents and certificates as are
reasonably requested to be delivered by Sellers or their
representatives pursuant to the provisions of this Agreement;
(iv) the Consents;
(v) the Disclosure Schedule;
(vi) evidence of the satisfaction of all conditions set forth in
Section 1.4; and
(vii) resignations of the incumbent directors and officers of the
Company, effective upon the Closing Date, and a resolution of the
incumbent directors appointing Xxx X. Xxxxxx and Xxxxx Xxxxxx,
Xx., as the new directors of the Company, effective upon the
Closing Date.
(b) Delivery by Purchaser. Purchaser shall deliver to Sellers:
(i) The Purchase Price in U.S. currency by wire transfer to bank
accounts designated in writing by the Sellers or by delivery of
cashier's checks; and
(ii) copies of resolutions of the Board of Directors of Purchaser
approving the terms of the Agreement and the execution of this
Agreement by the Purchaser.
ARTICLE 7
INDEMNIFICATION
7.1 Purchaser Claims. Sellers shall severally and not jointly indemnify and
hold harmless Purchaser, its successors and assigns, against, and in respect of
any and all damages, claims, losses, liabilities, and expenses, including
without limitation, legal, accounting and other expenses, which may arise out
of: (a) any material breach or violation by Sellers of any covenant set forth
herein or any failure to fulfill any obligation set forth herein; (b) any
material breach of any of the representations or warranties made in this
Agreement by Sellers; or (c) any claim by any Person for any brokerage or
finder's fee or commission in respect of the transactions contemplated hereby as
a result of Sellers' dealings, agreement, or arrangement with such Person.
7.2 Sellers Claims. Purchaser shall indemnify and hold harmless Sellers
against, and in respect of, any and all damages, claims, losses, liabilities,
and expenses, including without limitation, legal, accounting and other
expenses, which may arise out of: (a) any material breach or violation by
Purchaser of any covenant set forth herein or any failure to fulfill any
obligation set forth herein, including, but not limited to, the obligation to
satisfy the Assumed Liabilities; (b) any material breach of any of the
representations or warranties made in this Agreement by Purchaser; or (c) any
claim by any Person for any brokerage or finder's fee or commission in respect
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of the transactions contemplated hereby as a result of Purchaser's dealings,
agreement, or arrangement with such Person.
7.3 Indemnification Procedures. (a) The amount of any liability under this
Article 7 shall be computed net of any tax benefit to the parties from the
matter giving rise to the claim for indemnification hereunder and net of any
insurance proceeds received by a party with respect to the matter out of which
such liability arose.
(b) The representations and warranties contained in this Agreement, the
Disclosure Schedule, or any certificate delivered by or on behalf of parties
pursuant to this Agreement or in connection with the transactions contemplated
herein shall survive the consummation of the transactions contemplated herein
and shall continue in full force and effect for a period until the expiration of
90 days following receipt by the Company of its next audited financial
statements ("Survival Period"). Anything to the contrary notwithstanding, the
Survival Period shall be extended automatically to include any time period
necessary to resolve a written claim for indemnification which was made in
reasonable detail before expiration of the Survival Period but not resolved
prior to its expiration, and any such extension shall apply only as to the
claims so asserted and not so resolved within the Survival Period. Liability for
any such item shall continue until such claim shall have been finally settled,
decided, or adjudicated.
(c) A party claiming indemnity shall provide written notice to the other
parties of any claim for indemnification under this Article as soon as
practicable; provided, however, that failure to provide such notice on a timely
basis shall not bar the claimant's ability to assert any such claim except to
the extent that a party is actually prejudiced thereby, provided that such
notice is received during the applicable Survival Period. All parties shall make
commercially reasonable efforts to mitigate any damages, expenses, etc.
resulting from any matter giving rise to liability under this Article.
(d) With respect to any claim by a party under this Article 7, relating to
a third-party claim or demand, the parties shall provide each other with prompt
written notice thereof and the party who may be liable for indemnity shall
defend, in good faith and at its expense, by legal counsel chosen by it and
reasonably acceptable to the other party any such claim or demand, and all other
parties, at their expense, shall have the right to participate in the defense of
any such third party claim. So long as a party is defending in good faith any
such third-party claim, the other party shall not settle or compromise such
third-party claim. In any event, all parties shall cooperate in the settlement
or compromise of, or defense against, any such asserted claim.
ARTICLE 8
MISCELLANEOUS
8.1 Entire Agreement. This Agreement and the Disclosure Schedule sets forth
the entire agreement and understanding of the parties hereto with respect to the
transactions contemplated hereby, and supersedes all prior agreements,
arrangements and understanding related to the subject matter hereof. No
understanding, promise, inducement, statement of intention, representation,
warranty, covenant or condition, written or oral, express or implied, whether by
statute or otherwise, has been made by any party hereto which is not embodied in
this Agreement or the written statement, certificates, or other documents
delivered pursuant hereto or in connection with the transactions contemplated
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hereby, and no party hereto shall be bound by or liable for any alleged
understanding, promise, inducement, statement, representation, warranty,
covenant or condition not set forth.
8.2 Notices. Any notice or communications hereunder must be in writing and
given by depositing same in the United States mail addressed to the party to be
notified, postage prepaid and registered or certified mail with return receipt
requested or by delivering same in person. Such notices shall be deemed to have
been received on the date on which it is hand delivered or on the third business
day following the date on which it is mailed. For purpose of giving notice, the
addresses of the parties shall be:
If to Sellers:
Asset Value Fund Limited Partnership
000 Xxxx Xxxxxx, X.X. Xxx 00
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
J. Xxxxxx Xxxxxxx
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
G. Xxxxx Xxxxxxx
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
If to Purchaser or Company to:
Halter Capital Corporation
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
8.3 Governing Law. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of Delaware (without regard to principles of conflicts of law).
8.4 Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.5 Waivers and Amendments; Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, canceled, renewed, or
extended, and the terms hereof may be waived, only by a written instrument
signed by authorized representatives of the parties or, in the case of a waiver,
by an authorized representative of the party waiving compliance. No such written
instrument shall be effective unless it expressly recites that it is intended to
amend, supersede, cancel, renew or extend this Agreement or to waive compliance
12
with one or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege, or any single or partial exercise of any such right,
power of privilege, preclude any further exercise thereof or the exercise of any
other right, power or privilege. 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. The rights and remedies of any party based
upon, arising out of or otherwise in respect of any inaccuracy in or breach of
any representation, warranty, covenant or agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which any claim of any such inaccuracy or breach is
based may also be the subject of any other representation, warranty, covenant or
agreement contained in this Agreement (or in any other agreement between the
parties) as to which there is no inaccuracy or breach.
8.6 Binding Effect; No Assignment, No Third-Party Rights. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. This Agreement is not assignable
without the prior written consent of each of the parties hereto or by operation
of law. This Agreement is for the sole benefit of the parties hereto and their
permitted assigns, and nothing herein, expressed or implied, shall give or be
construed to give to any person, including any union or any employee or former
employee of Sellers, any legal or equitable rights, benefits or remedies of any
nature whatsoever, including any rights of employment for any specified period,
under or by reason of this Agreement.
8.7 Further Assurances. Each party shall, at the request of the other
party, at any time and from time to time following the Closing Date promptly
execute and deliver, or cause to be executed and delivered, to such requesting
party all such further instruments and take all such further action as may be
reasonably necessary or appropriate to carry out the provisions and intents of
this Agreement and of the instruments delivered pursuant to this Agreement.
8.8 Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of the Agreement, or the application of such provision or portion of
such provision to person or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby and such provision
or portion of any provision as shall have been held invalid or unenforceable
shall be deemed limited or modified to the extent necessary to make it valid and
enforceable, in no event shall this Agreement be rendered void or unenforceable.
8.9 Exhibits and Schedules. All exhibits annexed hereto, and all schedules
referred to herein, are hereby incorporated in and made a part of this Agreement
as if set forth herein. Any matter disclosed on any schedule referred to herein
shall be deemed also to have been disclosed on any other applicable schedule
referred to herein.
8.10 Captions. All section titles or captions contained in this Agreement
or in any schedule or exhibit annexed hereto or referred to herein, and the
table of contents to this Agreement, are for convenience only, shall not be
13
deemed a part of this Agreement and shall not affect the meaning or
interpretation of this Agreement. All references herein to sections shall be
deemed references to such parts of this Agreement, unless the context shall
otherwise require.
8.11 Expenses. Except as otherwise expressly provided in this Agreement,
whether or not the Closing occurs, each party hereto shall pay its own expenses
incidental to the preparation of this Agreement, the carrying out of the
provisions hereof and the consummation of the transactions contemplated.
8.12 Public Announcements. The parties agree to consult with each other
before issuing any press release or making any public statement or completing
any public filing with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable law or any
listing agreement with any national securities exchange or quotation system,
will not issue any such press release or make any such public statement prior to
consultation.
8.13 Release. Sellers, for themselves and their other family members,
heirs, successors, and assigns (collectively the "Releasing Parties") hereby
release, acquit, and forever discharge any and all claims and demands of
whatever kind or character, whether vicarious, derivative, or direct, whether
contingent or liquidated, or whether known or unknown, that he or they,
individually, collectively, or otherwise, have or may have or assert or may
assert against the Company; any subsidiary, affiliated, or related company, or
other related entity; or any officer, director, fiduciary, agent, employee,
representative, insurer, attorney, accountant, financial advisor, consultant,
partner, or shareholder of the Company; or any successors and assigns of the
Company, or the other entities, companies, partnerships, persons or parties just
named (collectively the "Released Parties") based upon any theory of federal,
state or local statutory or common law, the breach of any provision of any
contract (express or implied), or with respect to any facts or circumstances
that exist with respect to the relationship among the Company or the Releasing
Parties, whether known or unknown, through the date of execution of this
Agreement.
***Signature Page Follows***
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of
the date first written herein above.
/s/ J. Xxxxxx Xxxxxxx
------------------------------------------
J. XXXXXX XXXXXXX
/s/ G. Xxxxx Xxxxxxx
------------------------------------------
G. XXXXX XXXXXXX
ASSET VALUE FUND LIMITED
PARTNERSHIP
By: Asset Value Management, Inc.
General Partner
By: /s/ Xxx Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxx Xxxxxxx
Title: Chief Financial Officer
HALTER CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx, President
15
SCHEDULE 3.8
Assumed Liabilities
Printing and mailing expenses, transfer agent costs, and any other expense
to prepare and distribute the Rule 14f-1 statement and any amendments thereto.
Transfer agent fees of $500 per month beginning October 1, 2005.
No others
SCHEDULE 3.10
INSURANCE
1. Business Owners Policy
Policy #: 13SBANJ3306
Hartford Insurance Co. of Midwest
Policy Period 05/31/05 - 05/31/06
No claims outstanding
2. Workers Compensation Policy
Policy #: 13WECGK5100
Hartford Underwriters Insurance Co.
Policy Period 05/31/05 - 05/31/06
No claims outstanding
2
