Exhibit 2
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of September 26, 1996,
(the "Effective Date") between National Factoring Services, Inc.,
a Colorado corporation with its principal office located at 0000
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, for itself and
Fedfunds, Inc., of 0000 Xxxxxxxxx Xxxx., Xxxxx X-0, Xxxxxxx, XX
00000, ("National"), and Trustees of Boston University, with its
principal address at 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
for itself and its assignees, ("BU"), (National and BU,
collectively referred to herein as the "Sellers"), and LB
Acquisition Corp., a Massachusetts corporation with its principal
place of business at 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000, ("LB").
WHEREAS, National owns the factored accounts receivable of
Brite-Line Industries, Inc., a Delaware Corporation with its
principal office located at 00000 X. 00xx. Xxxxxx, Xxxxxx,
Xxxxxxxx 00000, ("BL"), and has a validly existing, perfected
first security interest in all of BL's unfactored accounts,
accounts receivable, contract rights, choses in action, inventory
(including any returned goods), general intangibles (including
all Patents and patent Applications), and work in progress,
together with all proceeds, including insurance proceeds,
(collectively, the "National Assets") to secure certain payments
and obligations of BL; and
WHEREAS, BU has a validly existing, perfected first security
interest in certain equipment, furniture and fixtures owned by
BL, and certain residual rights in the National Assets including,
but not limited to, those rights related to BL's patents, patent
applications and other Intellectual Property rights, as further
described in Section 1.2(b) hereof, (collectively, the "BU
Assets"), to secure certain payments and obligations of BL; and
WHEREAS, BL has defaulted under various agreements with
National and BU, and National and BU have taken possession of the
National Assets and the BU Assets, respectively, for the purpose
of foreclosing upon the National Assets and the BU Assets, as the
case may be, by sale; and
WHEREAS, BL has ceased doing business as a going concern on
or about September 6, 1996 (the "Foreclosure Date"), and the
National Assets and the BU Assets are rapidly declining in value;
and
WHEREAS, the Sellers desire to assign, transfer, sell and
convey to LB and LB desires to purchase from the Sellers certain
of the National Assets and the BU Assets, (collectively the
"Assets"), formerly used and useful in the conduct of BL's
business operations (the "Business") and in so doing to convey
and release all rights, direct, indirect, and residual in and to
those assets; and
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
I. PURCHASE AND SALE
1.1 Assets to be purchased. Subject to the terms and
conditions set forth herein, Sellers agree to and do hereby sell,
assign, transfer, convey and deliver to LB, and LB agrees to
purchase from the Sellers, on the Closing Date, all rights of
every kind and description of the Sellers in all of the Assets
other than certain assets, rights and properties of Sellers
specified in Section 1.3 (the "Excluded Assets"). The "Assets"
other than the Excluded Assets are referred to herein as the
"Acquired Assets." The total Purchase Price for the Acquired
Assets shall be payable as provided in Section 1.5. The Sellers
further agree that LB shall be given full access to the Acquired
Assets as of the date of this Agreement and that possession of
the Acquired Assets shall be transferred to LB as of the date of
Closing.
1.2 Acquired Assets. The Acquired Assets include, without
limiting the generality of the foregoing, the following (to the
extent such are not Excluded Assets) provided, however, that
notwithstanding any implication to the contrary, BU is
transferring only the BU Assets;
(a) All of Sellers' machinery, equipment, tools, dies,
vehicles, furniture, fixtures, and all other fixed assets and all
other tangible personal property, wherever located, existing on
the Foreclosure Date, of or relating to the Business;
(b) All of Sellers' patents, trademarks, trademark
registrations, service marks, trade names, patent applications,
inventions, trademark applications, processes, know-how,
licenses, blueprints, drawings, designs, patterns, copyrights,
franchises and formulae, information and documents (including log
books) relating to research and development, whether or not
completed, and all other forms of Intellectual Property, existing
on the Foreclosure Date, of or relating to the Business;
(c) All of Sellers' raw materials, supplies, packages,
boxes, containers, work in process and finished goods,
constituting all of the inventory of Sellers, wherever located,
existing on the Closing Date, of or relating to the Business;
(d) All of BL's trade accounts receivable existing on
the Foreclosure Date up to and including the Closing Date and all
of National's factored and unfactored accounts and accounts
receivable existing on the Foreclosure Date up to and including
the Closing Date, of or relating to the Business;
(e) All of Sellers' prepaid expenses and accounts
existing on the Foreclosure Date of or relating to the Business;
(f) All of Sellers' rights, which are now or were
formerly owned by BL, but none of Sellers' obligations, duties,
or liabilities under all contracts, agreements, leases and
licenses, and choses in action and general intangibles, whether
formerly owned by BL or otherwise; and
(g) All of Sellers' rights, which are now or were
formerly owned by BL, under all State, Federal, Municipal, and
regulatory agency approvals, actual or pending and whether
written or oral, direct or indirectly held; and
(h) All of Sellers books, papers, computer hardware
and software and related documentation and records, which are now
or were formerly owned by BL, including without limitation
property lists, payroll and personnel records, sales records,
contracts and orders, books of account, customer lists, supplier
lists and advertising and promotional material, but not including
minute books, capital stock records, tax returns, and personal
correspondence of executives, and documents relating solely to
the ownership of real property; provided, however, that
subsequent to Closing Sellers shall, upon request, be given such
reasonable access to such documents as may be necessary for
Sellers' respective legitimate business purposes.
1.3 Excluded Assets. Notwithstanding anything to the
contrary herein provided, the following assets, properties and
rights of Sellers shall be retained by Sellers (the "Excluded
Assets") and shall not be sold, assigned, transferred, conveyed
or delivered to LB:
(a) All rights or interest in any subsidiaries of BL
or any stock certificates or other instruments evidencing the
same;
(b) Such records, files and papers relating to the
Business and corporate organization as may reasonably be required
in connection with Sellers' and BL's tax, financial reporting and
legal obligations; provided, that, such records, files and papers
shall only be used by Sellers for such purposes; and provided,
further, that on request Sellers shall make available for copying
by LB all such retained records, files and papers;
1.4 Closing. The purchase and sale of the Acquired Assets
shall be held at 10:00 A.M. at National's Office in Denver, CO on
October 4, 1996 (the "Closing Date") unless all parties hereto
may mutually agree in writing upon another date, time and place.
At the Closing, Sellers shall deliver to LB possession and
enjoyment of the Acquired Assets, and those instruments necessary
to convey to LB all title as is either held by each of the
Sellers, or which Sellers may legally convey to assets of BL as
foreclosing secured creditors to the Acquired Assets, together
with the other documents and instruments as set forth in Section
6.1 herein, and LB shall deliver to Sellers such portions of
Purchase Price and the documents and instruments required as set
forth in Section 1.5.
1.5 Payment of the Purchase Price. LB will pay the
Purchase Price as follows:
1.5 (a) Subject to BU's agreement herein to discharge of
BL's obligations concerning any liens which exist under Colorado
law to which the Acquired Assets would be subject after the
Closing as described in Section 1.6(b) hereof, and pursuant to
the terms of an escrow agreement to be agreed upon prior to a
Closing, LB will pay BU the sum of $150,000.00, (the "BU Purchase
Price"), and LB will obtain and does hereby transfer and assign
to BU the release of any and all claims held by Plymouth Rubber
Company, Inc. ("PRC") against BU, in exchange for which BU will
provide a release of PRC from any and all claims which BU may
have against PRC, in consideration for the purchase of the BU
Assets; and
1.5 (b) Subject to the provisions of paragraphs (A)-(H)
hereinbelow, all rights in and to the National Assets shall be
transferred to LB as of the Closing Date. Upon the expiration of
the Collection Period as defined hereinbelow, in consideration
for the purchase of the National Assets, LB shall pay National:
(i) the sum of $2,139,646.93 (which sum the parties
acknowledge represents all factoring fees, charges and
loaned amounts due from BL),
(ii) plus all amounts paid by National, if pre-approved in
writing by LB, after the Effective Date of this Agreement
and up to the Closing Date, for the purpose of holding and
preserving the value of the Acquired Assets,
(iii) reduced by all amounts received by National on BL's
accounts receivable between the Foreclosure Date and the
expiration of the Collection Period, either by collection as
described in (C) below prior to the payment of the National
Purchase Price, or as remitted to National by LB hereunder,
(the "National Purchase Price").
Payment of the National Purchase Price shall be made in
accordance with the following conditions:
(A) Commencing on the Foreclosure Date and ending 120 days
after the Effective Date of this Agreement, unless extended
in writing by both LB and National (the "Collection
Period"), National shall retain the proceeds of all of BL's
accounts receivable collected since the Foreclosure Date, up
to the amount of the National Purchase Price, subject to the
provisions regarding collection described below. All
amounts so received by National during the Collection Period
shall be credited to the National Purchase Price;
(B) Following the Closing until the expiration of the
Collection Period, LB shall control the collection of the
accounts of the Business and all amounts so collected by LB
shall be disbursed to National weekly and as stated above,
shall be credited to the National Purchase Price.
(C) Without limiting the foregoing, LB may assign to
National for collection, at any time during the Collection
Period, and National shall accept, accounts aggregating up
to $500,000 for collection on LB's behalf, and any amounts
so collected when received by National will likewise be
credited to the National Purchase Price or turned over to LB
after payment of the National Purchase Price, as the case
may be; provided, however, that National shall not be
responsible for collection on such accounts in which
inventory has been returned by a customer of the Business,
and LB agrees that it will not knowingly turn over such
accounts to National for collection on LB's behalf. In the
event that National becomes aware of an inventory return it
shall immediately notify LB of same. In connection with
these collections on LB's behalf, unless otherwise agreed to
in writing, in no event is National authorized to discount a
receivable due from a debtor of BL, without LB's written
consent. Returns of BL's products and credits against
invoices shall be accepted by LB, in its sole discretion.
(D) Except as expressly defined as being included within
the National Purchase Price, National expressly waives any
and all fees, charges, and/or interest payments, of whatever
kind and nature, with regard to the National Assets incurred
at any time up to the Foreclosure Date and agrees that it
will not charge, and holds LB harmless from, such charges.
All fees, charges, and expenses of collection incurred by
National between the Foreclosure Date and the Closing Date,
except those included in the National Purchase Price, shall
be the sole responsibility of National. All fees, charges
and expenses of collection after the Closing Date shall be
the responsibility of LB; provided, however, that with
regard to the assignment of accounts for collection by LB to
National as referenced in Section 1.5 (b) (C) above,
National shall be responsible for such expenses incurred for
collection within the state of Colorado, and LB shall bear
all expenses of collection incurred outside of Colorado,
provided that LB shall approve such expenses before they
have been incurred.
(E) National and LB shall report to each other weekly and
shall provide an accounting to each other of all amounts
collected and shall cooperate and consult with each other to
resolve discrepancies, if any, and agree on a "Final
Accounting" in writing, within ten (10) calendar days
following the expiration of the Collection Period ("Final
Accounting Period"). If either party shall claim any
discrepancy in the accounting of the other at any time
during the Final Accounting Period, either party shall have
three business days, (extending the Final Accounting period
three days, if necessary), after notification to the other
in writing of the alleged discrepancy, to conduct an audit
of the collecting party's records.
(F) In the event that, despite the best efforts of both
National and LB to collect the National Purchase Price it is
not so collected in full within the Collection Period, or
such other extensions of the Collection Period as to which
both LB and National may agree in writing, LB shall pay
National, within three (3) business days after the Final
Accounting, by wire transfer to such account as National
shall designate, the difference between the National
Purchase Price and the total amount received by National
through the Collection Period, ie., the balance remaining
due of the National Purchase Price.
(G) National agrees to turn over to LB upon receipt all
payments for BL accounts received by National after payment
of the National Purchase Price.
(H) Legitimate disputes between LB and National as to
remaining amounts due on the National Purchase Price shall
be resolved by binding arbitration under the rules of the
American Arbitration Association regarding commercial
disputes, said arbitration to be concluded within thirty
(30) days after any audit hereunder;
1.6 No Liabilities or Obligations to be Assumed. LB shall
assume no liabilities or obligations of the Sellers or of BL or of
the Business.
Without limiting the foregoing, in no event shall LB be liable
for, and each Seller, respectively, to the extent applicable to
that Seller, shall indemnify and hold LB harmless from the
following:
(a) National shall indemnify and hold LB harmless from (i)
any obligations and liabilities of National for taxes and
governmental charges, of any nature whatsoever including, without
limiting the generality of the foregoing, taxes based on the
earnings of National, withholding taxes, sales taxes, taxes
relating to the real or personal property owned or occupied by
National, or taxes resulting from the transactions contemplated
by this Agreement; and (ii) liabilities for breach of warranties
under the Factoring Agreement between National and BL dated
August 16, 1995.
(b) BU shall indemnify and hold LB harmless from (i) any
obligations and liabilities of BL for any and all claims or liens
which exist under Colorado law or under the U.S. Bankruptcy Code
to which the Acquired Assets would be subject after Closing, to
the extent of the BU Purchase Price, including but not limited to
valid employee wage claims, taxes, and governmental charges, of
any nature; provided this indemnity shall not apply to any claims
under any applicable Bulk Sales Law; and (ii) BU agrees as the
shareholder of BL that it will not assert any claims against LB
or its parent, PRC, or permit the assertion of such claims on its
behalf, and hereby assigns any rights it may have to such claims
or to benefit from such claims, to LB. It is agreed that the BU
Purchase Price shall be applied first to discharge any and all
liens which may attach to the Acquired Assets and thereafter, to
any other liens or obligations of BL which may arise under law.
II. REPRESENTATIONS AND WARRANTIES OF SELLERS
2.1 Organization; Good Standing; Subsidiaries.
Each Seller represents for itself and not jointly that it is a
corporation duly organized, validly existing, and in good
standing under the laws of their respective states of
incorporation. Each Seller represents for itself and not jointly
that it has corporate power and authority to own its properties
and to conduct its businesses.
2.2 Authorization; Binding Effect. Each Seller and each
representative of each Seller represents and warrants for itself
and not jointly, that the execution and delivery of the Agreement
by such Seller, the performance of its obligations thereunder and
the sale of the Acquired Assets by such Seller (a) has been duly
authorized by all necessary corporate and, if applicable,
shareholder action, (b) does not conflict with any of the
provisions contained in the respective Charter or by-laws of such
Seller, or in any agreement, indenture or other instrument to
which it is a party, or by which it or any of its assets may be
bound, (c) does not violate any law, regulation, order or decree,
to which such Seller is subject and (d) will not result in the
creation of any lien or encumbrance upon any of the Acquired
Assets, except that no representation is made with respect to any
Bulk Sales Law. Sellers warrant that they will, and do hereby
agree to deliver to LB any and all releases, patent assignments,
evidence of UCC Termination Statements or other evidence of the
title of Sellers or their assignees as LB may reasonably require.
Without limiting the generality of the foregoing, BU shall
deliver and/or supply proof to LB of a release of interests from
Canaan Venture Limited Partnership and Canaan Venture Offshore
Limited Partnership (collectively "Canaan") and National shall
deliver a release of interests from Fedfunds, Inc. Each Seller
represents for itself and not jointly that this Agreement and the
other instruments to be executed and delivered by such Seller in
accordance herewith will constitute valid and binding obligations
of such Seller enforceable in accordance with their terms except
as the same may be limited by applicable bankruptcy, insolvency,
moratorium or other similar laws affecting creditors generally.
2.3 Taxes. BU warrants and represents that it will, as
BL's shareholder, either file or ensure the filing by BL of all
Federal and other tax returns or reports required to be filed
with respect to BL, and will pay in full or make adequate
provisions for all Federal, State, and local taxes (including
withholding taxes), interest, assessments, fees, and other
governmental charges due or claimed to be due with respect to BL,
including, without limitation any deficiency or claim for
additional taxes, interest thereon or penalties in connection
therewith; provided that the sole recourse of LB for breach of
this Section shall be the indemnity provided in Section 1.6(b).
2.4 Title to Properties; Absence of Liens and Encumbrances.
National and BU individually represent and warrant that they have
a valid, perfected first security interest in the National
Assets, and the BU Assets, respectively, and Sellers each warrant
and represent that, to the best of their knowledge, they are able
to and will in accordance with this Agreement convey good and
marketable title to the National Assets and the BU Assets,
respectively, free and clear of all liens, encumbrances and
restrictions on transferability, (except the disclosed interest
of Fedfunds, Inc. and Canaan, as to which National and BU
respectively shall obtain appropriate releases prior to Closing).
2.5 No Consents Necessary. Each Seller represents and
warrants as to itself and not jointly that, to the best of their
individual knowledge, no consent or approval of, or other action
by any governmental body or agency, or any other person, firm or
corporation is required to be obtained by such Seller in
connection with the execution of this Agreement or the
transactions provided for herein.
III. REPRESENTATIONS AND WARRANTIES OF LB
LB represents and warrants to Sellers as follows:
3.1 Organization and Good Standing. LB is a corporation
duly organized, validly existing and in good standing under the
laws of the Commonwealth of Massachusetts. LB has the corporate
power and authority to conduct its business as presently
proposed.
3.2 Authorization. The execution, delivery and performance
of this and the other agreements and instruments to be executed
and delivered by LB in accordance herewith (a) have been duly
authorized by all necessary corporate action, (b) do not conflict
with any of the provisions contained in the Certificate of
Incorporation, or by-laws of LB, or in any other agreement,
indenture or instrument to which LB is a party or by which LB or
its assets may be bound, (c) do not violate any law (other than
any applicable Bulk Sales Law), regulation, order or decree, and
(d) will not violate or result in a breach or default in any
agreements, indenture or instrument to which LB is a party or may
be bound or create any lien or encumbrance upon any of the
Acquired Assets except as contemplated hereby.
3.3 Binding Effect. This Agreement, and each other
instrument to be executed and delivered by LB in connection with
the closing contemplated hereby will constitute valid and binding
obligations of LB, enforceable in accordance with their terms
except as the same may be limited by applicable bankruptcy,
insolvency, moratorium or other similar laws affecting creditors
generally.
IV. ACTIONS PRIOR TO CLOSING
4.1 Access to Information. Sellers agree to permit LB
and its representatives reasonable access at all reasonable times
prior to the Closing Date to the facilities, properties, books,
records, officers, employees and agents of Sellers which relate
to or which have knowledge of the Business as LB may reasonably
require, and will permit LB to confirm the title to Sellers'
assets, and will furnish to LB during such period all reasonable
information concerning the affairs of Seller or of BL as LB or
its representatives may reasonably request, provided that BU's
obligations under this Section 4.1 shall be limited to
information specifically related to the BU Assets, and certain
residual rights in and to the National Assets and to information
in the possession of BU with respect to the Business of BL.
4.2 Conduct Pending the Closing Date. Sellers agree that
until the Closing Date, except with the prior written consent of
LB (which consent will not be unreasonably delayed or withheld),
they will:
(a) not dispose of any of the Acquired Assets, except for
the collection of accounts receivable as described in Section 1.5
above and except for the shipment of inventory to fill orders of
BL between the Foreclosure Date and the Closing Date;
(b) use reasonable efforts to maintain the physical
security of the Acquired Assets.
(c) use reasonable efforts to assure that the
representations and warranties made by such Seller set forth
herein will be true and correct on the Closing Date; and
(d) not issue any press release or otherwise make any
public statements with respect to this Agreement and the
transactions contemplated thereby.
V. POST-CLOSING MATTERS
5.1 Agreement Regarding Employment. Upon the Closing, LB
may offer employment to those prior employees of BL as XX xxxxx
fit, in its sole discretion.
5.2 Confidentiality; Nondisclosure. For a period of ten
years from and after the Closing Date, each of Sellers, their
directors, officers, employees, agents, representatives and
stockholders will not disclose to any third party or use for any
purpose any of the confidential or proprietary information which
is in its possession and which is transferred, or to be
transferred, to LB on the Closing Date pursuant to this Agreement
(the "Information"), except to the extent the Information is
published by or used with the consent of LB, or by a third party
having no obligation of confidentiality to LB.
5.3 Additional Covenants of Sellers.
(a) Nothwithstanding anything to the contrary herein
provided, Sellers will physically deliver to LB on the Closing
Date the Acquired Assets except for tangible assets in the
possession of third parties as described to LB.
(b) Except as described in Section 1.5 above,
following the Closing, National authorizes LB to endorse its name
on and collect for LB's account any check, draft or other
instrument received on and after the Closing in payment of any
accounts included in the Acquired Assets, including without
limitation, customer accounts receivable, refunds of deposits and
refunds of prepaid expenses. In the event that National shall
receive payments subsequent to the payment of the National
Purchase Price in full as described in Section 1.5, it will
promptly turn the same over to LB.
VI. CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions to Obligations of LB. The obligations of
LB to complete the transactions provided for herein are subject
to the satisfaction or waiver of the following conditions:
(a) The representations and warranties of Seller
contained herein shall be true on and as of the Closing Date with
the same force and effect as though made on and as of the Closing
Date;
(b) Each Seller shall have delivered to LB appropriate
instruments of release, transfer, conveyance, sale and assignment
in respect of the National Assets and the BU Assets, as the case
may be, consisting of bills of sale, assignments, confirmation of
notices sent to third parties holding any Acquired Assets, and
such other good and sufficient instruments of conveyance and
transfer (including any consents thereto by third parties
necessary to make the same valid and effective), in such form and
containing such terms and provisions as counsel for LB may
reasonably require, as shall be effective to vest in LB all of
Sellers' respective right, title, and interest in and to the
Acquired Assets, as the case may be, free and clear of any and
all liens, mortgages, pledges, conditional sales, or other title
retention agreements, leases, charges, restrictions, and
encumbrances, known to each Seller provided that BU's delivery
shall be limited to (i) delivery of a quit-claim xxxx of sale in
the form attached as Exhibit A conveying the BU Assets "AS IS"
and "WHERE IS" without any representations or warranties other
then those specifically set forth herein, and (ii) delivery of
such releases, assignments and other documents as may be
necessary to convey and transfer whatever residual rights in and
to the National Assets and the BU Assets as BU may have, and
(iii) delivery of a confirmatory Patent Assignment for recording
in the U.S. Patent and Trademark Office in the form as attached
as Exhibit B.
(c) Subject to Section 1.2(h) herein, Sellers shall
have delivered to LB all books, papers, ledgers and records in
their possession, custody and control relating to the Acquired
Assets and to BL's business operations, except minute books,
stock books, tax returns, and related correspondence, and
executive correspondence, and, with regard to all the books,
papers, and records so delivered, LB shall, at all reasonable
times after the Closing Date, make them available for inspection
by Sellers provided that BU's obligation under this Section 6.1
(c) shall be limited to items specifically related to the BU
Assets;
(d) Each of the Sellers state that to their individual
knowledge, there shall not at the time of Closing be any pending
or threatened governmental action or proceeding by or before any
court or governmental body or agency which seeks to restrain,
prohibit or invalidate the transactions contemplated by this
Agreement or which might affect the right of LB to own or control
the Acquired Assets or operate the business conducted with such
Acquired Assets after the Closing Date, free and clear of any and
all liens, encumbrances, restrictions and obligations to any
third party.
(e) Arrangements satisfactory to LB shall have been made
with BL's prior landlord for possession of the Premises;
(f) LB shall have received an opinion satisfactory to LB
from its Patent Counsel that the Intellectual Property covered by
this Agreement will be owned by LB free and clear of any liens,
encumbrances, or competing claims of any kind.
(g) LB shall have received evidence satisfactory to LB that
the persons signing this Agreement, and any and all documents
required hereunder, have the requisite legal authority to do
same.
(h) Any Confirmations of Assignments and Assignments of
Patents and Licenses from Xxxxxxx Xxxxxxx to LB, from BU to LB,
and from National to LB, as may be required and suitable for
recording in the U.S. Patent and Trademark Office in order to
transfer to LB all Patents and Patent applications relating to
the Business shall have been provided to LB.
(i) LB shall be satisfied, in its sole discretion, that it
has or will be able to hire such former employees of BL as XX
xxxxx necessary.
(j) LB shall have received an opinion satisfactory to LB
from its Colorado counsel and financial advisors that any liens
which exist under Colorado law to which the Acquired Assets would
be subject after Closing will be discharged under the terms of
this Agreement.
6.2 Conditions to the Obligations of Sellers. The
obligations of Sellers to complete the transactions provided for
herein are subject only to the satisfaction or waiver of the
following conditions :(a) There shall not be any outstanding
injunction or other court order restricting, prohibiting, or
invalidating the transactions contemplated in this Agreement; (b)
LB's representations and warranties contained in this Agreement
shall be true on and as of the Closing Date with the same force
and effect as though made on and as of the Closing Date; and (c)
evidence reasonably satisfactory to National of LB's ability to
comply with the terms of this Agreement.
VII. INDEMNIFICATION
7.1 Indemnification by Sellers; by LB.
(a) Subject to the limitations in Sections 7.1(c) and
(d) below, each of Sellers individually agrees to defend,
indemnify and hold LB harmless from and against any loss,
liability, damage, or reasonable out-of-pocket expense (including
reasonable attorneys' fees) suffered or incurred by LB as a
result of any material misrepresentations, breach of material
warranty or nonfulfillment by the respective Seller of its
material covenants, agreements or undertakings contained in this
Agreement, except that this indemnification to LB shall not
extend to any loss, liability, damage or expense suffered or
incurred by LB and attributable to any act or omission by LB.
(b) Subject to the limitations set forth in Sections
7(c) and (d) below, LB agrees to defend, indemnify and hold
Sellers harmless from and against any loss, liability, damage or
reasonable out-of-pocket expense (including reasonable attorneys'
fees) suffered or incurred by Sellers as a result of (i) any
material misrepresentation, breach of material warranty or
nonfulfillment by LB of material agreements, covenants and
undertakings contained in this Agreement, except that this
indemnification of Sellers shall not extend to any loss,
liability, damage or expense suffered or incurred by any Seller
and attributable to any act or omission by that individual
Seller.
(c) A party's liability to indemnify the other party
pursuant to Section 7.1(a) or 7.1(b) shall be conditional upon
the following: (i) the claiming party shall have notified the
indemnifying party in writing of any fact or circumstance which
gives rise to such liability with reasonable promptness after
such fact or circumstance first comes to the attention of the
claiming party, and in all events no later than 30 days after the
end of the time period established in Section 7.1(d); and (ii)
the indemnifying party's legal representatives shall, upon
acknowledging in writing to the claiming party its responsibility
for the matter, have had, at the indemnifying party's election, a
right to compromise or defend any matter which involves a third
party and which may give rise to such liability on the
indemnifying party's part, through the indemnifying party's
counsel, and at the indemnifying party's expense. In the event
that the indemnifying party elects to compromise or defend any
such liability involving a third party, the claiming party shall
cooperate fully and promptly with the indemnifying party and its
counsel at the indemnifying party's expense with respect to any
out-of-pocket expenses of the claiming party in the compromise or
the defense of the matters which may give rise to such liability.
(d) The obligations of the parties to indemnify each
other shall not extend to events occurring after the third
anniversary of the Closing Date or to any claim asserted more
than 30 days after such third anniversary of the Closing Date.
7.2 Survival of Representations and Warranties. Each of
the parties hereto agrees that its representations, warranties,
covenants and agreements contained in this Agreement and in any
document delivered pursuant to this Agreement or in connection
with the closing hereunder, shall survive the Closing but that
indemnification provided herein is the sole remedy for breaches
of such representations and warranties.
7.3 Resolution of Disputes. If a party against which
indemnification is sought under Section 7.1 does not object in
writing to a claim by the claiming party within 20 business days
of receipt of the notice of claim, the former shall be deemed to
have accepted the claim and shall have no further right to
dispute the obligation to indemnify the claiming party. If the
party against which indemnification is sought shall notify the
claiming party in writing within 20 business days that it objects
to the claim for indemnification or the amount thereof, then, the
validity of the indemnification claim and/or the amount thereof
shall be conclusively determined, except as otherwise expressly
provided for herein, in an arbitration proceeding conducted in
accordance with the Rules of the American Arbitration Association
("AAA") by three arbitrators, one arbitrator being selected by
the claiming party, one arbitrator being selected by the party
against which indemnification is sought and the third being
selected by the two arbitrators so selected. In the event of
their inability to agree on the selection of a third arbitrator,
the third arbitrator shall be designated by AAA. Notwithstanding
the foregoing, if the validity and/or amount of an obligation to
indemnify under Section 7.1 is being or has been litigated in a
proceeding which both parties have the opportunity to
participate, the final determination of the court (after appeals,
if any), in such proceeding shall be binding upon the arbitrators
in such arbitration proceeding. The notice objecting to claim
shall be deemed to be a demand for arbitration hereunder. If
either party shall not have selected its arbitrator and given
written notice thereof to the other party within twenty days
after each demand, such arbitrator shall be selected by AAA at
the request of the party demanding the arbitrator. The meetings
of the arbitrators shall be held in Denver, CO, at such place or
places as may be agreed upon by the arbitrators. All
determinations made by the arbitrators selected pursuant to the
provisions of the Section 7.3 shall be by majority vote and shall
be final, and shall be conclusive evidence permitting entry of
judgment in any court of competent jurisdiction based on the
award of the arbitrators. Notice of any such determination shall
forthwith be given to each party, and if such determination, as
evidenced by such notice, shall allow the claim or any portion
thereof, the party against which indemnification was sought shall
promptly upon receipt of such notice, pay the full amount of the
claim so determined to the claiming party. Each party shall bear
its own fees and expenses incurred with respect to a claim for
indemnification prior to the commencement of an arbitration
hereunder.
VIII. MISCELLANEOUS
8.1 Brokerage. Sellers each for itself and not
jointly represent to LB, and LB represents to Sellers, that,
there has been no intermediary or broker retained by each party
in negotiations or discussions incident to the execution of this
Agreement who are due any commissions or other sums and each
party hereby indemnifies and hold the other parties harmless from
any such claim made by any such intermediary or broker retained
by such party.
8.2 Waivers and Amendments.
(a) This Agreement may be amended, modified or
supplemented, only by a written instrument executed by the
parties hereto, and any obligation hereunder may be waived only
by a written instrument executed by the party to which the
obligation runs. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate as a waiver of
any subsequent breach.
(b) No failure on the part of any party to
exercise, and no delay in exercising, any right or remedy
hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or remedy by any party
preclude any other or further exercise thereof or the exercise of
any other right or remedy. All remedies hereunder are cumulative
and are not exclusive of any other remedies provided by law.
8.3 Notices. All notices, requests, demands and other
communications which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid to the
addresses first written above, or to such other address as Seller
or LB shall have specified by notice in writing to the other.
8.4 Expenses. Each party hereto shall pay its own
expenses in connection with the transactions contemplated hereby
whether or not they are completed.
8.5 Public Disclosure. The parties will consult with
respect to the appropriate public disclosure to be made with
respect to the transactions contemplated hereby, and will make no
such disclosure prior to such consultation, except as may be
required by law.
8.6 Efforts. The parties hereto agree to use reasonable
efforts to complete the transactions contemplated hereby,
including full cooperation in the making of any governmental
filings required in connection herewith. In the event any party
hereto fails to obtain the satisfaction of any of said conditions
on or before the Closing Date, the only remedy available to any
other party shall be to refuse to close as of the Closing Date,
in which event the Closing shall occur on the third business day
following the day all parties agree that their respective
conditions have been satisfied (or have been waived by the other
parties); provided, however, that should the Closing not have
occurred by October 4, 1996, then any party may terminate this
Agreement by written notice to the other parties.
8.7 Further Assurances. At the request of any party, on
or after the Closing Date, any other party will promptly execute
and deliver, or cause to be executed and delivered, such
documents or instruments in addition to those required by this
Agreement, as may reasonably be necessary or desirable to carry
out or implement any provision of this Agreement or to facilitate
the lawful exercise by LB of its rights as owner of the Acquired
Assets.
8.8 Miscellaneous. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject
matter hereof and supersedes all prior correspondence and other
writing between the parties or any of them in connection with the
subject matter of this Agreement, and shall inure to the benefit
of and be binding upon the parties hereto and their respective
successors and assigns. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such
provision in any other jurisdiction. All Exhibits and Schedules
mentioned in this Agreement shall be attached to this Agreement,
and shall form an integral part thereof. All terms defined in
this Agreement which are used in any Exhibit shall, unless the
context otherwise requires, have the same meaning therein as
given herein. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have duly executed
and delivered this Agreement as of the date first above written.
NATIONAL FACTORING SERVICES, INC.
_____________________________ By____________________________
Witness Title:
TRUSTEES OF BOSTON UNIVERSITY
_____________________________ By_____________________________
Witness Title:
LB ACQUISITION CORP.
_____________________________ By_____________________________
Witness Title:
XXXX OF SALE AND ASSIGNMENT
This Xxxx of Sale and Assignment is executed as of the executed as of
the 4th day of October, 1996, by National Factoring Services, Inc. (the
"Seller") in favor of LB Acquisition Corp. (the "Buyer"). Capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed
to them in that certain Asset Purchase Agreement, dated September 26, 1996 (the
"Asset Purchase Agreement"), by and between the Buyer, the Seller, and Trustees
of Boston University.
For value received, the receipt and sufficiency of which is hereby
acknowledged, the Seller does hereby grant, bargain, sell, convey, assign,
transfer and set over unto the Buyer and its successors and assigns, absolutely
and unconditionally and not as security, with quitclaim covenants, all of
Seller's right, title and interest in and to the National Assets, as defined
in Section 1.2 of the Asset Purchase Agreement incorporated by reference
herein.
Nothing set forth herein shall be deemed to convey to the Buyer any
right, title or interest in or to the Excluded Assets. In the event of any
conflict between any term or condition of this Xxxx of Sale and Assignment and
the Asset Purchase Agreement, the terms and conditions of the Asset Purchase
Agreement shall govern said conflict.
NATIONAL FACTORING SERVICES, INC.
By:
Name:
Title:
XXXX OF SALE AND ASSIGNMENT
This Xxxx of Sale and Assignment is executed as of the 4th day of
October, 1996, by Trustees of Boston University (the "Seller") in favor of LB
Acquisition Corp. (the "Buyer"). Capitalized terms used herein and not other-
wise defined herein shall haved the meanings ascribed to them in that certain
Asset Purchase Agreement, dated September 26, 1996 (the "Sale Agreement"), by
and between the Buyer, the Seller and National Factoring Services, Inc.
For value received, the receipt and sufficiency of which is hereby
acknowledged, the Seller does hereby grant , bargain, sell, convey, assign,
transfer and set over unto the Buyer and its successors and assigns, absolutely
and unconditionally and not as security, with quitclaim covenants, all of BL's
right, title and interest in and to the B.U. Assets.
Nothing set forth herein shall be deemed to convey to the Buyer and
right, title or interest in or to the Excluded Assets. In the event of any
conflict between any term or condition of this Xxxx of Sale and Assignment and
the Sale Agreement, the terms and conditions of the Sale Agreement shall govern
said conflict.
TRUSTEES OF BOSTON UNIVERSITY
By:
Name:
Title:
ASSIGNMENT
TRUSTEES of BOSTON UNIVERSITY, a non-profit Educational Corporation
having a principal address at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
(hereinafter Assignor), does hereby assign and confirm the assignment to BL
ACQUISITION CORP., a Massachusetts Corporation, having its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000, (hereinafter Assignee), its
successors and assigns, all right, title and interest of Assignor throughout
the United States, its territories and all foreign countries; in and to the
United States and foreign patents and patent applications identifired in
Schedule A hereto and in and to the inventions disclosed therein, and in and
to such patents as may issue on such applications, and all divisions, reissues,
continuations, certificates of reexamination and extensions thereof; together
with all rights of action and recovery for past infringement thereof; for the
full term or terms for which any and all such patents may be granted; as fully
and entirely as the same would have been held and enjoyed by Assignor had this
assignment not been made.
AND, Assignor hereby agrees to execute and hereby authorizes Assignee to
execute any further documents as may be necessary or desirable to confirm,
perfect or record the rights conveyed herein.
IN WITNESS WHEREOF, Assignor has caused this Agreement to be executed
this day of , 1996.
TRUSTEES OF BOSTON UNIVERSITY
By
Name:
Title:
Commonwealth of Massachusetts )
) ss
County of Suffolk )
Subscribed and sworn to before me this day of ,
1996.
Notary Public
My Commission Expires:
SEAL
SCHEDULE A
To Assignment dated between TRUSTEES OF
BOSTON UNIVERSITY and LB ACQUISITION CORP.
U. S. ISSUED
Docket No. Patent No. Title Inventors
5,087,148 SURFACE MARKER STRIP Xxxxxxx X. Xxxxxxx
5,139,590 SURFACE MARKET STRIP Xxxxxxx X. Xxxxxxx
AND METHODS FOR PROVIDING
IMPROVED INTEGRITY AND ADHESION
TO ROADWAYS AND THE LIKE
4,969,713 MARKER STRIP SURFACE FOR Xxxxxxx X. Xxxxxxx
ROADWAYS AND THE LIKE
4,681,401 SHEET MATERIAL MARKER Xxxxxxx X. Xxxxxxx
SURFACE FOR ROADWAYS
AND THE LIKE
4,236,788 DIRECTION-INDICATING Xxxxxxx X. Xxxxxxx
SURFACE MARKET STRIP
FOR ROADWAYS AND THE LIKE
FOREIGN
Country Xxx. No.
Australian 83112683
Canadian 1222157
French 22522034
British 2115862
Italian 1169106
Japanese 1,583,590
Swedish 8300731
Chinese 1043358
Chinese 1044837
