EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and
entered into as of June 30, 1999 by and among HAWAIIAN NATURAL WATER COMPANY,
INC., a Hawaii Corporation ("Buyer"), ALI'I WATER BOTTLING, INC., a Hawaii
corporation ("Seller"), and Xxxxxx Xxxxxx, the sole stockholder of Seller
("Xxxxxx"), with respect to the following:
WHEREAS, Seller is a manufacturer and marketer of purified bottled
water, with operations in both the three- and five-gallon home and office
delivery market (the "Delivery Business") and the PET retail market (the "PET
Business); and
WHEREAS, Buyer wishes to enter the Delivery Business and otherwise to
expand its operations in Hawaii; and
WHEREAS, Buyer wishes to purchase, and Seller wishes to sell, the
assets, subject to certain liabilities, and goodwill of Seller's operations, on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions contained herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 PURCHASED AND EXCLUDED ASSETS.
1.1.1 PURCHASED ASSETS. On the basis of the
representations and warranties herein, and subject to the terms, conditions and
other provisions contained herein, Seller hereby agrees to sell, transfer,
assign and deliver to Buyer, and Buyer hereby agrees to purchase and accept from
Seller, all of Seller's right, title and interest in and to, all of the assets
of Seller used in the operation of Seller's business (including the Delivery
Business and the PET Business), wherever situated, and all the goodwill related
thereto (collectively the "Purchased Assets"); PROVIDED, HOWEVER, that the
Purchased Assets shall not include any items defined as Excluded Assets in
Section 1.1.2 hereof. For purposes hereof, the Purchased Assets shall include,
without limitation, all (i) plant and equipment; (ii) bottles and coolers, (iii)
delivery trucks
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and other rolling stock; (iv) raw and finished goods inventory; (v) accounts
receivable; (vi) contract rights; (vii) customer deposits; (viii) office
equipment and furniture; (ix) bank accounts; and (x) intangible assets,
including the name "Ali'i" and any other trademarks, servicemarks, trade
secrets or knowhow related to the business, except to the extent that any of
the foregoing are Excluded Assets.
1.1.2 EXCLUDED ASSETS. Notwithstanding the foregoing,
Seller will not transfer or assign to Buyer, and Buyer will not purchase or
assume, any of the assets described on Schedule 1.1.2 hereto (collectively, the
"Excluded Assets"). The Excluded Assets shall include, without limitation, the
lease of Seller's principal operating facility located at 00-0000 Xxxxxxx
Xxxxxx, Xxxxxx-Xxxx, Xxxxxx, which Seller is expected to terminate prior to the
closing of the purchase and sale hereunder (the "Closing"); provided, however,
that Seller will cooperate with Buyer in negotiating a continuation of such
lease in the event that Buyer elects to utilize a portion or all of such space
after the Closing.
1.2 ASSUMED AND EXCLUDED LIABILITIES.
1.2.1 ASSUMED LIABILITIES. Buyer hereby assumes and
agrees to pay or otherwise discharge the following liabilities (collectively,
the "Assumed Liabilities") of Seller: (i) all of Seller's trade payables
outstanding as of the Closing; (ii) all of Seller's obligations for refunds of
customer deposits; and (iii) all of Seller's obligations, to the extent arising
after the Closing, pursuant to any assumed leases and other contracts included
within the Purchased Assets (collectively, the "Assumed Contracts"); provided,
however, that for purposes of the purchase price adjustment described in Section
2.2 hereof, any accrued liabilities under Assumed Contracts will be pro-rated as
of the Closing.
1.2.2 EXCLUDED LIABILITIES. Except as otherwise
specifically provided in Section 1.2.1 hereof, Buyer shall not assume or be
liable for, and is not agreeing to pay or discharge, any debts, claims, damages,
obligations, liabilities or responsibilities of any kind or nature whatsoever of
Seller, or any affiliated or related person or entity, including, without
limitation, (i) any outstanding indebtedness of Seller to the Bank of Hawaii, or
any refinancing of same, all of which will be repaid prior to the Closing; (ii)
any income taxes, payroll taxes, sales taxes or other federal, state or local
taxes arising out of or relating to transactions occurring prior to the Closing;
(iii) any accrued liabilities for employee compensation or benefits or any
contract or commitment relating to the employment of any employee or independent
contractor of Sellor; or (iv) any obligation for litigation matters arising out
of transactions occurring prior to
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the Closing. All of the Purchased Assets shall be transferred to Buyer free
and clear of all liens, claims and encumbrances of any kind, except for the
Assumed Liabilities described in Section 1.2.1 hereof.
1.3 PAYMENT OF SALES TAXES. Any sales tax arising from or
relating to the Purchased Assets to be transferred hereunder shall be paid by
Seller.
1.4 COMPLIANCE WITH BULK SALES LAW. Seller agrees, and Xxxxxx
will cause Seller, to make any such governmental filing as may be required by
the provisions of Article 6 of the Uniform Commercial Code as in effect in the
State of Hawaii (the "UCC") within the time periods specified by such
provisions. The parties agree to waive any notice to creditors and waiting
period specified by the UCC.
ARTICLE II
PURCHASE PRICE; METHOD OF PAYMENT; ESCROW
2.1 AGGREGATE PURCHASE PRICE. The aggregate purchase price for
all of the Purchased Assets (the "Purchase Price") shall be $ , payable at the
Closing by means of the issuance to Seller of 300,000 authorized but unissued
shares of Common Stock of Buyer (the "Seller's Shares"). The Purchase Price
shall be subject to adjustment as provided in Section 2.2 hereof.
2.2 PURCHASE PRICE ADJUSTMENT. It is understood and agreed
that Seller's Net Current Assets (as hereinafter defined) will be not less than
zero as of the Closing. For purposes hereof, Net Current Assets means the net
book value, as of the Closing, of all Current Assets (as hereinafter defined)
included in the Purchased Assets, less all Current Liabilities (as hereinafter
defined) included in the Assumed Liabilities. For purposes of the foregoing,
Current Assets means all (i) inventory; (ii) accounts receivable (net of
allowance for doubtful accounts); and (iii) cash or cash equivalents. Current
Liabilities means all (i) trade payables; (ii) liabilities under Assumed
Contracts accrued as of the Closing; and (iii) refund obligations. As soon as
practicable, and in any event within 30 days, following the Closing, Buyer and
Seller shall jointly prepare (and in the absence of agreement, Xxxxxx Xxxxxxxx
LLP shall prepare) a statement (the "Closing Statement") setting forth Seller's
Current Assets and Current Liabilities and showing the computation of Net
Current Assets as of the Closing. In the event that the Net Current Assets shown
on such Closing Statement are less than zero, the Purchase Price shall be
reduced dollar-for-
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dollar by the amount of any such deficit. Any such reduction will be effected
solely by means of a cancellation of Escrow Shares (as hereinafter defined)
having a market value equal to the dollar amount of the applicable reduction.
For purposes of the foregoing, the market value of such Escrow Shares shall
be an amount per share equal to the closing sale price of the Common Stock on
the date of the Closing on the principal market on which the Common Stock is
then traded (currently the Nasdaq SmallCap Market).
2.3 ESCROW OF SELLER'S SHARES. Concurrently, with the Closing,
Buyer shall deposit 50,000 of the Seller's Shares (the "Escrow Shares") into an
escrow account (the "Escrow") to cover potential liabilities of Seller pursuant
to Section 2.2 (Purchase Price Adjustment) and 10.2 (Indemnification) hereof.
The Escrow Shares may be released to Buyer from time to time in the event of an
adjustment in accordance with such Sections. All of the Escrow Shares then held
in Escrow shall be released to Seller one year from the date of the Closing,
except to the extent that claims therefor from Buyer are then outstanding.
Escrow Shares sufficient to cover all such claims shall be held in Escrow,
pending the resolution thereof.
2.4 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated to the Purchased Assets as set forth on Schedule 2.4 hereto, which
shall be prepared by the parties and attached to this Agreement as soon as
practicable, and in any event within 30 days, following the Closing. The parties
hereby agree that each shall be bound by the allocation set forth above and
shall reflect such allocation in any filing pursuant to Section 1060 of the
Internal Revenue Code and the regulations thereunder.
ARTICLE III
THE CLOSING; TRANSFER OF PURCHASED ASSETS
3.1 CLOSING. The Closing of the transactions contemplated by
this Agreement shall take place as soon as practicable after all of the
conditions to the Closing set forth in Articles VII and VIII hereof shall have
been satisfied or waived, but in no event later than July 31, 1999. The Closing
shall take place at the offices of Buyer, 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx
00000, or at such other place as the parties may agree upon.
3.2 MANNER OF CONVEYANCE; TITLE. The sale and purchase of the
Purchased Assets shall be consummated at the Closing by good and sufficient
bills of sale and by individual assignments, as necessary, in form and
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substance satisfactory to Buyer, in each case, with such other appropriate
instruments of title, consents of third parties, estoppel certificates and
other instruments and documents as Buyer shall reasonably request. At the
Closing, Seller shall transfer to Buyer good and marketable title to each of
the Purchased Assets, free and clear of all liens, claims, mortgages,
charges, commission arrangements, title retention agreements, covenants,
restrictions, options, purchase agreements, security agreements, security
interests, encumbrances and adverse interests of any kind or nature
whatsoever, except as otherwise provided in Section 1.2.1 hereof. At any time
and from time to time after the Closing, the parties shall duly execute,
acknowledge and deliver all such further assignments, conveyances,
instruments and documents, and will take such other action consistent with
the terms of this Agreement, in each case, as may be reasonably necessary to
assign, transfer and convey to Buyer good and marketable title to any and all
of the Purchased Assets, and to consummate the transactions contemplated by
this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER AND XXXXXX
Seller and Xxxxxx, jointly and severally, hereby represents
and warrants to Buyer, its successors and assigns, as of the date hereof and as
of the Closing, as follows:
4.1 AUTHORITY. Seller has full corporate right, power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. All corporate
and other actions required to be taken by Seller to authorize the execution,
delivery and performance of this Agreement and all transactions contemplated
hereby have been duly and validly taken.
4.2 VALIDITY. The execution, delivery and performance of this
Agreement have been, and each of the documents to be delivered at the Closing
will be, duly authorized by all requisite action on the part of Seller, and this
Agreement has been duly executed and delivered by Seller and Xxxxxx and
constitutes the valid and legally binding obligation of Seller and Xxxxxx,
enforceable against them in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally or by general
equitable principles.
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4.3 NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement by Seller, nor the consummation of the transactions contemplated
hereby, do or would after the giving of notice or the lapse of time or both, (i)
conflict with, result in a breach of, or constitute a default under, any
federal, state or local law, statute, rule or regulation to which Seller or the
Purchased Assets are subject; (ii) result in the creation of, or give any party
the right to create, any lien, charge, encumbrance, security agreement or other
rights or adverse interests upon any of the Purchased Assets; (iii) terminate or
give any party the right to terminate, amend, abandon or refuse to perform any
Assumed Contract; or (iv) accelerate or modify, or give any party thereto the
right to accelerate or modify, the time within which, or the terms under which
any third party is to perform any duties or obligations or receive any rights or
benefits under any Assumed Contract.
4.4 CONSENTS. Except for compliance with Article 6 of the UCC
and any required consents to the assignment of the Assumed Contracts, no action,
consent, or approval by or filing with any person or entity, including, without
limitation, any federal, state, municipal, foreign or other court or
governmental or administrative body or agency or any securities or commodities
exchange is required to be obtained or made by Seller in connection with the
execution, delivery and performance by Seller of this Agreement, and
consummation by Seller of the transactions contemplated hereby, except for
consents, approvals or filings which have been or as of the Closing will have
been obtained or made.
4.5 TITLE TO ASSETS. At the Closing, Seller will convey to
Buyer, and Buyer will acquire, good and marketable title to all of the Purchased
Assets, free and clear of any and all mortgages, liens, claims, charges,
options, purchase agreements, security agreements and interests, commission
arrangements, title retention agreements, encumbrances, covenants, restrictions
and adverse interests of any kind or nature whatsoever, including tax liens,
except as otherwise provided in Section 1.2.1 hereof.
4.6 FINANCIAL STATEMENTS. Seller has previously delivered to
Buyer a true and correct copy of it balance sheet as of March 31, 1999 (the
"Latest Balance Sheet") and a statement of operations for the 12-month period
then ended. The Latest Balance Sheet was prepared in accordance with generally
accepted accounting principles and presents fairly the assets and liabilities of
Seller as of the date thereof. The Purchased Assets include all of the assets
shown on the Latest Balance Sheet, except for Excluded Assets and assets sold or
otherwise disposed of in the ordinary course of business since the date of the
Latest Balance Sheet.
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4.7 ACCOUNTS RECEIVABLE. All accounts receivable reflected on
the Latest Balance Sheet and all accounts receivable to be reflected on the
Closing Statement are or will represent bona fide claims against debtors for
sales or services previously performed or other charges previously incurred and
all such accounts receivable are or will be collectible in the ordinary course
of business, and in any event within 60 days of the Closing Statement date,
subject to the allowance for doubtful accounts set forth thereon. Except as set
forth on Schedule 4.7 hereto or on the applicable invoice as disclosed to Buyer,
none of such accounts receivable is or will be subject to any discount, rebate,
refund, or similar cost adjustment.
4.8 INVENTORY. All of the inventory reflected on the Latest
Balance Sheet or to be reflected on the Closing Statement is or will be usable
or salable in the ordinary course of business and is or will be reflected
thereon at the lower of cost or market.
4.09 ASSUMED CONTRACTS. Seller has previously deliver to Buyer
a true and complete copy of each of the Assumed Contracts as currently in
effect. Each of the Assumed Contracts is currently in effect and is valid,
binding and enforceable against each of the parties thereto in accordance with
its terms. Seller has not agreed to amend or modify any of the Assumed Contracts
and has not waived or agreed to waive any rights of substantial value
thereunder. All consents of third parties required for the assignment of the
Assumed Contracts to Buyer have been, or as of the Closing will be, obtained,
except as otherwise provided in Section 7.2 hereof.
4.10 ABSENCE OF CERTAIN CHANGES. Since the date of the Latest
Balance Sheet, there has not been any change or any development involving a
prospective change, which has materially and adversely affected or may
materially and adversely affect the business, condition, financial or otherwise,
prospects, assets, properties, or results of operations of Seller's business or
the Purchased Assets.
4.11 LITIGATION. Except for the action filed by Water
Unlimited, Inc., dba The Xxxxxxxx, there is no suit, action, claim or
litigation, or legal, administrative, arbitration or other proceeding or
governmental investigation or inquiry pending or, to the best knowledge of
Seller and Xxxxxx after due inquiry, threatened against or affecting Seller or
any of the Purchased Assets, and/or one or more of the Shareholders, and, to the
best knowledge of Seller and Xxxxxx, there is no basis for any such action, nor
is there any judgment, decree, injunction, ruling, award, order or writ of any
court, governmental department, commission, agency, instrumentality, arbitration
or other person outstanding against, binding upon or involving Seller or any of
the Purchased Assets.
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4.12 COMPLIANCE WITH LAW. No notice has been issued and no
investigation or review is pending or, to the best knowledge of Seller and
Xxxxxx, threatened by any governmental entity with respect to (i) any alleged
violation by Seller of any law, ordinance, rule, regulation, order, policy or
guideline of any governmental entity, or (ii) any alleged failure to have all
permits, certificates, licenses, approvals and other authorizations required in
connection with the operation of Seller's business or the Purchased Assets.
4.13 ENVIRONMENTAL COMPLIANCE.
(a) The operations, practices, policies and procedures of
Seller and its employees have been conducted in compliance with, and
have not and will not give rise to any loss, liability, damage, costs
or expenses under, all applicable federal, state and local laws,
orders, regulations, directives and restrictions concerning protection
of the environment, the disposal of hazardous, toxic or industrial
chemicals, substances or wastes and health and safety.
(b) There are no claims or correspondence with respect to,
investigations, litigation, administrative proceedings, judgments or
orders, whether pending or, to the best knowledge of Seller and Xxxxxx,
threatened relating to any hazardous substances, hazardous wastes,
discharges, emissions or other forms of pollution (collectively "EPA
Matters") relating in any way to Seller's operations. To the best
knowledge of Seller and Xxxxxx, Seller has no liability for clean-up,
compliance or required capital expenditures in connection with any EPA
Matter which affect or may have a material adverse effect on Seller's
business or the Purchased Assets.
(c) No hazardous or toxic substances, within the meaning of
any applicable statute or regulation, are presently stored or otherwise
located at any facility operated by Seller which may, in the aggregate,
materially or adversely affect Seller's business or the Purchased
Assets, and, to the best knowledge of Seller and Xxxxxx, none of the
adjacent parcels of real estate, including the groundwater located
thereon or thereunder, is presently contaminated by any such substance
which affects or may affect, materially or adversely Seller's business
or the Purchased Assets.
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4.14 TAXES. All federal, state, county, local, foreign and other tax
returns, reports and declarations (including income, excise, property,
franchise, sales and use taxes) required to be filed with respect to Seller or
by or on behalf of Seller's business have been duly filed (or extensions for
filing have been filed) and such returns are complete and accurate and disclose
all taxes required to be paid for the periods covered thereby. All taxes shown
on such returns and any deficiency assessments, penalties and interest have been
paid. There are no tax liens on any of the Purchased Assets and no basis exists
for the imposition of any such liens. All federal, state, local and foreign
taxes, assessments, fees and charges (including interest and penalties, if any)
required to be paid or claimed to be due from or with respect to Seller for any
period prior to the Closing have been fully paid, as of the date hereof or will
be paid by Seller as of the Closing, together with any interest and penalties
thereon. All returns required to be filed for any period prior to the Closing
which are not filed as of the Closing will be duly filed. Notwithstanding any
other provision of this Agreement, each of Seller and Xxxxxx is satisfied as to,
and has relied solely upon its and his tax advisors with respect to, the
incidents of taxation which will or may result from the transactions
contemplated by this Agreement.
.
4.15 LEASES. Set forth on Schedule 4.15 hereto is a complete list of
all leases pursuant to which Seller leases real or personal property. A true and
complete copy of each such lease has been delivered to Buyer, and no changes
have been made therein since the date of such delivery. Each such lease is
valid, binding and enforceable in accordance with its terms, there are no
existing material defaults by Seller thereunder and no event has occurred which
(with or without notice, lapse of time or both) would constitute a material
default thereunder by any party.
4.16 PLANT AND EQUIPMENT. The plant, structure and equipment used by
Seller in the operation of its business are structurally sound and in good
operating condition and repair and are adequate for the purposes to which they
are being put; and none of such plant, structure or equipment are in need of
maintenance or repair, except for ordinary, routine maintenance and repairs
which are not material in nature or cost.
4.17 LABOR MATTERS. There are no controversies pending, nor, to the
best knowledge of Seller and Xxxxxx, is there any basis for any such
controversies, between Seller and any of its employees, which controversies have
affected or may affect materially and adversely the operation of Seller's
business or the Purchased Assets.
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4.18 SECURITIES MATTERS.
(a) Seller is acquiring the Seller's Shares solely for its own
beneficial account, for investment purposes, and not with a view to, or
for resale in connection with, any distribution thereof. Seller and
Xxxxxx understand that the issuance of the Seller's Shares hereunder
has not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), or the securities laws of any State
(collectively, "State Securities Laws") by reason of specific
exemptions under the provision thereof which depend in part upon
Seller's investment intent.
.
(b) Seller and Xxxxxx understand that the Seller's Shares are
"restricted securities" under the Securities Act and that the
Securities Act and the rules of the Securities and Exchange Commission
thereunder provide in substance that such securities may be disposed of
only pursuant to an effective registration statement under the
Securities Act, or an exemption from such registration if available, or
in certain transactions not subject to the registration requirements of
the Securities Act and further understands that Buyer has no obligation
or intention to register any of the Seller's Shares.
(c) Seller agrees that it will not, and Xxxxxx agrees to cause
Seller not to: (i) sell, assign, pledge, give, transfer, or otherwise
dispose of the Seller's Shares or any interest therein, or make any
offer or attempt to do any of the foregoing, except pursuant to a
registration thereof under the Securities Act and all applicable State
Securities Laws or in a transaction which, in the written opinion of
Sellers' counsel, reasonably satisfactory to Buyer, is exempt from or
not subject to the registration provisions of the Securities Act and
all applicable State Securities Laws; (ii) that the certificate(s)
representing the Seller's Shares may bear an appropriate legend making
reference to the foregoing restrictions; and (iii) that the transfer
agent for the Seller's Shares will not be required to give effect to
any purported transfer thereof, except upon compliance with the
foregoing restrictions.
(d) Seller and Xxxxxx acknowledges that they and their
representatives have been given full access to such of the business,
personnel and financial information of Buyer and its properties, books,
contracts, commitments and records, together with projected and pro
forma financial information concerning Buyer giving effect to the
transactions contemplated by this Agreement as the undersigned has
requested in order to make an independent investigation of the
transactions contemplated by this Agreement and evaluate the condition
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(financial and other), properties, assets, liabilities, business
operations and prospects of Buyer. Seller and Xxxxxx and their advisors
(if any) have had an opportunity to ask questions of, and to receive
information from, Buyer and to obtain any additional information
necessary to verify the accuracy of the information and data received
by them. Seller and Xxxxxx and their advisors (if any) have received
all information and data which they believe to be necessary in order to
reach an informed decision as to the advisability of acquiring the
Seller's Shares hereunder. Seller and Xxxxxx understand that the
acquisition of the Seller's Shares is subject to a number of risks and
uncertainties, including without limitation, the risk that Buyer's
Common Stock may be delisted from the Nasdaq SmallCap Market, pending
the outcome of a hearing scheduled for July 8, 1999.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller and Xxxxxx, as of the
date hereof and as of the Closing, as follows:
5.1 DUE ORGANIZATION. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Hawaii,
with full corporate power and authority to acquire and operate the Purchased
Assets.
5.2 AUTHORITY. Buyer has full corporate right, power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. All corporate actions required to be taken by
Buyer to authorize the execution, delivery and performance of this Agreement and
all transactions contemplated hereby, including the issuance of the Seller's
Shares have been, or as of the Closing will have been, duly and properly taken.
5.3 VALIDITY. This Agreement constitutes the valid and legally
binding obligation of Buyer, enforceable against it in accordance with its
terms, except to the extent enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting creditors'
rights generally or by general equitable principles.
5.4 CAPITALIZATION. The authorized capital stock of Buyer
consists of 20,000,000 shares of Common Stock, of which approximately 4,079,563
shares are issued and outstanding, and 5,000,000 shares of Preferred Stock, of
which 750 shares are currently outstanding, convertible into Common Stock as set
forth in the Certificate of Amendment relating thereto, a copy of which has
previously been furnished to Seller. There are no other shares of capital stock
of Buyer issued and outstanding. All outstanding shares
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of Common Stock are, and the Seller's Shares, when issued at the Closing in
accordance with the provisions of this Agreement will be, validly issued,
fully paid and nonassessable.
5.5 NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement by Buyer nor the consummation of the transactions contemplated
hereby, do, or would after the giving of notice or the lapse of time or both,
(i) conflict with, result in a breach of, or constitute a default under, the
Articles of Incorporation or the Bylaws of Buyer; (ii) conflict with, result in
a breach of, or constitute a default under, any federal, state, or local law,
statute, rule or regulation to which Buyer is subject, or (iii) violate or
conflict with any other material restriction applicable to Buyer.
5.6 CONSENTS. Except for a filing with the Nasdaq Stock Market
in connection with the issuance of the Seller's Shares, no action, consent, or
approval by or filing with any person or entity, including, without limitation,
any federal, state, municipal, foreign or other court or governmental or
administrative body or agency or any securities or commodities exchange is
required to be obtained or made by Buyer in connection with the execution,
delivery and performance by Buyer of this Agreement and the consummation by
Buyer of the transactions contemplated hereby, except for consents, approvals or
filings which have been or as of the Closing will have been obtained or made.
.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
6.1 INTERIM CONDUCT OF THE BUSINESS. At all times during the
period from the date of this Agreement through the Closing:
6.1.1 OPERATIONS IN THE ORDINARY COURSE OF BUSINESS. Except
for actions required by this Agreement, Seller covenants and agrees
that it will, and Xxxxxx covenants and agrees to cause Seller to, cause
its business and the Purchased Assets to be operated only in the
lawful, ordinary and usual course of business and that it will not take
any action inconsistent therewith or engage in any transaction other
than in the ordinary and usual course of business as heretofore
conducted.
6.1.2 FORBEARANCES BY SELLER. Without limiting the generality
of Section 6.1.1 hereof, Seller covenants and agrees that it will not,
and Xxxxxx covenants and agrees to cause Seller not to, without the
prior written consent of Buyer:
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(a) sell, lease, transfer or dispose of or
enter into any agreement to dispose of any of the Purchased Assets,
except in the ordinary course of business;
(b) waive or release any rights of
material value, or cancel, compromise, release or assign any claims
held by Seller;
(c) permit Seller to enter into, amend,
modify, terminate or cancel any Assumed Contract, other than in the
ordinary course of business;
(d) (i) increase the salary and bonus
compensation or fringe benefits payable to any of its directors,
officers or employees; or (ii) pay or agree to pay any pension or
retirement allowance not required by any existing employment agreement
or employment plan to any such directors or officers; or (iii) commit
itself to any employment agreement or employment plan with or for the
benefit of any officer or director; or (iv) alter, amend or terminate
in whole or in part, any employee pension or other benefit plan;
(e) agree or commit to do any of the things
described above in this Section 6.1.2.
6.2 REGULATORY CONSENTS, AUTHORIZATIONS, ETC. Each of the
parties hereto will use its best efforts to obtain all consents, authorizations,
orders and approvals of, and make or give all filings and notices with or to,
any person or entity required in connection with the consummation by it of the
transactions contemplated on its part hereby and will cooperate fully with the
other party in assisting it to obtain such consents, authorizations, orders and
approvals and to make or give such filings and notices. No party hereto will
take or omit to take any action for the purpose of delaying, impairing or
impeding the receipt of any required consent, authorization, order or approval
or the making or giving of any required filing or notice.
6.3 ACCESS. Prior to the Closing, Buyer may make or cause to
be made such reasonable investigation of the business, properties and assets of
Seller and its financial and legal condition as Buyer deems necessary or
advisable in order to familiarize itself therewith. From the date hereof through
the Closing, Seller shall give or cause Buyer and its authorized representatives
to be given permission, during Seller's normal business hours and upon
reasonable notice, full access to all properties, books, contracts, leases,
commitments and records of Seller, and during this period Seller shall furnish
Buyer or cause Buyer to be furnished with all financial and operating data and
other information as to the business, properties and assets of Seller as Buyer
13
may from time to time reasonably request; PROVIDED, HOWEVER, that such
investigation shall not interfere with the conduct of Seller's business.
6.4 NO SOLICITATION. Seller and Xxxxxx hereby covenants and
agrees that, prior to July 31, 1999, without the prior written consent of Buyer,
neither Seller nor any of its affiliates, representatives or agents will,
directly or indirectly, take any action to initiate, assist, solicit, negotiate,
encourage, accept or otherwise pursue any offer of inquiry from any person or
entity to engage in, attempt to consummate or reach any agreement or
understanding (whether absolute, revocable, contingent or conditional) with
respect to any Business Combination (as hereinafter defined). For purposes
hereof, "Business Combination" means (i) any merger, consolidation, business
combination, sale, lease, or similar transaction relating to Seller, (ii) any
sale or other disposition of capital stock of, or other equity interest in,
Seller, (iii) any sale, dividend or other disposition of all or any material
portion of the assets of Seller, or (iv) any other transaction involving Seller
which is inconsistent with the transactions contemplated by this Agreement.
6.5 COVENANT NOT TO COMPETE OR SOLICIT.
(a) Partially in consideration of the purchase of the
Purchased Assets contemplated hereby (which is intended to transfer to
Buyer the goodwill of Seller's business), Xxxxxx agrees that, for a
period of three years following the Closing, he will not, directly or
indirectly, either as employee, employer, consultant, agent, principal,
partner, stockholder, officer, director or in any other individual or
representative capacity, engage or participate in any activity in the
bottled water business or which otherwise competes with Buyer in the
State of Hawaii, without the express written consent of Buyer;
provided, however, that the foregoing will not be deemed to restrict
Xxxxxx from selling or installing point of use systems or equipment or
otherwise engaging in any business which does not involve the
production, sale or distribution of packaged water products.
(b) The parties intend that the covenant contained in
the preceding paragraph will be construed as a series of separate,
identical covenants, one for each portion of the geographical territory
described above. In the event that any court or administrative body
shall refuse to enforce any of the separate covenants deemed included
in the preceding paragraph, each such unenforceable covenant shall be
eliminated from the these provisions to the extent necessary to permit
the remaining separate covenants to be enforced against Xxxxxx to the
fullest extent.
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(c) Xxxxxx further agrees that, for a period of three
years following the Closing, he will not, on his own behalf or in the
service of others, except with Buyer's prior written consent, disrupt,
damage, impair or interfere with the business of Buyer or its
affiliates by raiding or in any manner encouraging, inducing and/or
persuading any of Buyer's or such affiliates' officers, directors,
employees, agents and/or independent contractors to terminate,
discontinue or otherwise change any of their employment, contractual or
other relationships with Buyer.
6.6 NO INCONSISTENT ACTION. Each of the parties hereto will
use its best efforts to consummate the transactions contemplated by this
Agreement and shall not take any action inconsistent with its obligations
hereunder or which could hinder or delay the consummation of the transactions
contemplated hereby.
6.7 PUBLICITY. Except to the extent otherwise required by law,
each party hereto agrees not to issue any press release or otherwise make any
public statement in any general circulation medium with respect to the existence
or terms of this Agreement or the transactions contemplated hereby, without the
prior written consent of the other party hereto.
6.8 FURTHER ASSURANCES. Subject to the terms and conditions
herein provided, each of the parties hereto shall use its best efforts to bring
about the transactions contemplated by this Agreement, as soon as practicable,
including the execution and delivery of all instruments and other documents, and
shall take or cause to be taken all such further actions as may reasonably be
requested by the other party hereto in order to carry out the intent and purpose
of and to consummate the transactions contemplated by this Agreement.
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ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligation of Buyer to purchase the Purchased Assets and
otherwise to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction or waiver (by Buyer in its sole and absolute
discretion) concurrently with or prior to the Closing of the following
conditions precedent:
7.1 ACCURACY OF WARRANTIES; PERFORMANCE OF COVENANTS. The
representations and warranties of Seller and Xxxxxx contained in Article IV
hereof shall be true, accurate and correct on the date hereof and shall also be
true, accurate and correct on and as of the Closing with the same effect as if
such representations and warranties had been made on and as of the Closing, and
Seller and Xxxxxx shall have performed each and every obligation and complied
with each and every agreement and covenant required by this Agreement to be
performed or complied with by it.
7.2 CONSENTS OF THIRD PARTIES. All consents from parties to
the Assumed Contracts required in connection with assignment to Buyer of the
Assumed Contracts shall have been obtained, on terms and conditions satisfactory
to Buyer in its sole discretion; provided, however, that if any such consent
cannot be obtained, the related Assumed Contract shall nevertheless be
transferred to Buyer and Buyer shall perform all of Seller's obligations
thereunder, whether or not Seller or Xxxxxx is released therefrom.
7.3 NO PENDING ACTION. No claim, investigation, action, suit,
proceeding or litigation, either administrative or judicial, at law or in
equity, by any governmental or regulatory commission, agency or other body or
authority or by any other person, firm, corporation or other entity shall have
been instituted, threatened or pending as of the Closing (i) for the purposes of
challenging, prohibiting, operating, enjoining, restricting or delaying the
consummation of this Agreement or any of the transactions contemplated by this
Agreement, or any of the conditions to the consummation of the transactions
contemplated by this Agreement (ii) which claims damages against Buyer as a
result of the consummation of the transactions contemplated hereby or otherwise
claims that this Agreement or the consummation thereof is improper, or (iii)
which in the reasonable opinion of Buyer, could materially or adversely affect
the right of Buyer to retain or operate the Purchased Assets after the Closing;
and no injunction or restraining order shall be in effect prohibiting the
transactions contemplated by this Agreement.
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7.4 FORCE MAJEURE. All or any material part of the Purchased
Assets shall not have been adversely affected in any way by any act of God,
fire, flood, war, legislation (proposed or enacted) or other event or
occurrence, whether or not covered by insurance.
7.5 ASSUMED CONTRACTS. All of the Assumed Contracts shall
remain in effect, without amendment or modification, except as otherwise
consented to by Buyer in its sole discretion.
7.6 CERTIFICATES. Buyer shall have received from Seller or
Xxxxxx a certificate or certificates dated as of the Closing and certifying that
the conditions set forth above in this Article VII have been satisfied.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligation of Seller to sell the Purchased Assets and
otherwise to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction or waiver (by Seller in its sole and absolute
discretion) concurrently with or prior to the Closing of the following
conditions precedent:
8.1 ACCURACY OF WARRANTIES; PERFORMANCE OF COVENANTS. The
representations and warranties of Buyer contained in Article V hereof shall be
true, accurate and correct on the date hereof and shall also be true, accurate
and correct on and as of the Closing with the same effect as if such
representations and warranties had been made on and as of the Closing Date, and
Buyer shall have performed each and every obligation and complied with each and
every agreement and covenant required by this Agreement to be performed or
complied with by it.
8.2 NO PENDING ACTION. No claim, investigation, action, suit,
proceeding or litigation, either administrative or judicial, at law or in
equity, by any governmental or regulatory commission, agency or other body or
authority or by any other person, firm, corporation or other entity shall have
been instituted, threatened or pending as of the Closing (i) for the purposes of
challenging, prohibiting, operating, enjoining, restricting or delaying the
consummation of this Agreement or any of the transactions contemplated by this
Agreement, or any of the conditions to the consummation of the transactions
contemplated by this Agreement, or (ii) which claims damages against Seller as a
result of the consummation of the transactions contemplated hereby or otherwise
claims that this Agreement or the consummation thereof is improper.
17
8.3 FORCE MAJEURE. All or any material part of the Purchased
Assets shall not have been adversely affected in any way by any act of God,
fire, flood, war, legislation (proposed or enacted) or other event or
occurrence, whether or not covered by insurance.
8.4 CERTIFICATES. Seller shall have received from Buyer a
certificate or certificates dated as of the Closing and certifying that the
conditions set forth above in this Article VIII have been satisfied.
ARTICLE IX
EMPLOYEES
Seller shall terminate all of its employees concurrently with
or prior to the Closing. Except pursuant to the Assumed Contracts, Buyer shall
not be obligated in any way to offer employment to any employee of Seller, and
Buyer will not be responsible or liable in connection with any employment
arrangements (whether written or oral) with employees of Seller, or for any
salaries, severance pay, vacation accruals or other benefits owed or payable to
any employees of Seller; PROVIDED, HOWEVER, that Buyer shall be responsible for
any salaries, severance pay, vacation accruals or other benefits owed or payable
to former employees of Seller employed by Buyer after the Closing, to the extent
such payments relate to periods as of and after the Closing.
ARTICLE X
SURVIVAL AND INDEMNIFICATION
10.1 SURVIVAL. The respective representations and warranties
of the parties contained herein shall not be deemed waived or otherwise affected
by any investigation made by either party hereto and shall survive the Closing
for a period of three years.
10.2 INDEMNIFICATION.
10.2.1(a) Seller hereby agrees to defend, indemnify and hold
the Buyer and its officers, directors agents and affiliates (collectively,
"Buyer's Representatives"), harmless from and against any and all claims,
demands, damages, liabilities, losses, costs and expenses (including reasonable
attorneys' fees) of any kind or nature whatsoever (collectively, "Losses"), that
may be suffered or paid by Buyer or Buyer's Representatives, directly or
indirectly, as a result of (i) any liability other than an Assumed Liability
relating to the Purchased Assets arising out of events occurring prior to the
Closing, including any liability other than an Assumed Liability arising out of
Sellers
18
failure to notify its creditors pursuant to the Bulk Sale provisions of
the UCC; or (ii) the failure of any representation or warranty contained in
Article IV hereof to be true and correct in all respects as of the Closing.
(b) Buyer shall defend, indemnify and hold Seller and
its officers, directors, agents and affiliates, if any (collectively, "Seller's
Representatives") harmless from and against (i) any and all Losses of any kind
or nature whatsoever that may be suffered or paid by Seller or Seller's
Representatives, directly or indirectly, as a result of (i) any liability
relating to the Purchased Assets arising out of events occurring subsequent to
the Closing, including any liability relating to an Assumed Contract for which a
consent to assignment has not been obtained prior to the Closing; or (ii) the
failure of any representation or warranty contained in Article V hereof to be
true and correct in all respects as of the Closing.
10.3 PROCEDURE. In the event of any claim for indemnification
by Buyer or Buyer's Representatives, on the one hand, or Seller or Seller's
Representatives, on the other (the "Indemnified Party") under Section 10.2
hereof, the Indemnified Party shall notify the other party (the "Indemnitor") in
writing of said claim within 30 days of the first receipt of notice of such
claim, and in any event within such shorter period as may be necessary for the
Indemnitor to take appropriate action to resist such claim, which notice shall
set forth the basis of the claim (including, without limitation, reference to
the specific representation, warranty, covenant or obligation alleged to have
been breached) and, if then determinable by the Indemnified Party, a reasonable
estimate of the amount thereof (or, if in the Indemnified Party's good faith
opinion, no such reasonable estimate can then be made by it, the maximum
potential Losses that, in the Indemnified Party's good faith opinion, might be
sustained in connection with such claim). Any claim for indemnification pursuant
to Section 10.2 hereof arising out of a breach of any representation or warranty
must be delivered in writing to the party from whom indemnification is sought
prior to the expiration of the applicable survival period for such
representation or warranty as provided in Section 10.1 hereof.
10.4 CONDITIONS OF INDEMNIFICATION. The obligations and
liabilities of the parties pursuant to Section 10.2 hereof with respect to
claims for damages resulting from the assertion of liability by third parties,
including without limitation any notices of Internal Revenue Service or Hawaii
State taxing authorities ("Claims"), shall be subject to the following terms and
conditions:
10.4.1 The Indemnified Party shall give the Indemnitor prompt
notice of any Claim asserted against or imposed upon or incurred by the
Indemnified Party and shall then take no further action without the written
consent of the Indemnitor to settle or compromise such Claim, except as
19
provided below. The Indemnitor will be entitled to undertake the defense of
such Claim by representatives of its own choosing and to control the
proceedings relating thereto. The Indemnified Party shall cooperate to the
extent reasonably requested by the Indemnitor in the defense or prosecution
thereof and shall furnish such records, information and testimony and attend
all such conferences, discovery proceedings, hearings, trials and appeals as
may be reasonably requested by the Indemnitor in connection therewith.
10.4.2 In the event that the Indemnitor, within a reasonable
time after notice of any such Claim, fails to defend, the Indemnified Party will
(upon further notice to the Indemnitor) be entitled to undertake the defense,
compromise or settlement of such Claim for the account of the Indemnitor,
subject to the right of the Indemnitor to assume the defense of such Claim at
any time prior to settlement, compromise or final determination thereof, and the
Indemnitor shall be liable for all fees and costs, including reasonable
attorneys' fees, incurred by the Indemnified Party in employing counsel of its
choice to defend any such actions or proceedings. The Indemnified Party shall
give written notice to the Indemnitor of any proposed settlement of any Claim,
which Indemnitor may reject in its reasonable judgment within ten (10) days of
receipt of such notice or such shorter period as may be necessary for the
Indemnified Party to take appropriate action to resist such Claim; provided that
Indemnitor shall then undertake the defense of such Claim.
10.4.3 If the Indemnitor has assumed the defense of any Claim
against the Indemnified Party, Indemnitor shall have the right to settle any
Claim for which indemnification has been sought and is available hereunder;
provided that, to the extent that such settlement refers to any alleged
liability or wrongdoing of the Indemnified Party, requires the Indemnified Party
to take, or prohibits the Indemnified Party from taking, any action or purports
to obligate the Indemnified Party other than for the payment of money, then the
Indemnitor shall not settle such claim without the prior consent of the
Indemnified Party, which consent shall not be unreasonably withheld.
10.5 PAYMENT OF CLAIMS IN COMMON STOCK OF BUYER. All Claims for
indemnification hereunder shall be paid in shares of Common Stock of Buyer. Any
Claim by Buyer shall be satisfied through the cancellation of Escrow Shares
having a market value equal to the dollar amount of such Claim; and any Claim by
Seller shall be satisfied through the issuance of additional Escrow Shares. In
either case, such shares shall have a market value equal to the dollar amount of
the applicable Claim. For purposes of the foregoing, the market value of the
such Escrow Shares shall be an amount per share equal to the closing sale price
of the Common Stock on the date of the Closing on the principal market on which
the Common Stock is then traded (currently the Nasdaq SmallCap Market).
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ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 BROKERS., Buyer and Seller represent and warrant to each other
that no broker, investment banker or finder is entitled to any financial
advisory fee brokerage fee or finder's fee or other similar payment with respect
to this Agreement or the transactions contemplated hereby. Buyer and Seller
hereby agree to indemnify, defend and hold each other harmless against and in
respect of all claims, losses, liabilities and expenses which may be asserted
against the one by any broker or other person who claims to be entitled to a
broker's, finder's or similar fee or commission in respect of the execution of
this Agreement, or the consummation of the transactions contemplated hereby, by
reason of his acting at the request of the other.
11.2 ENTIRE UNDERSTANDING. This Agreement (including the Schedules and
Exhibits hereto, each of which is incorporated herein and made a part of this
Agreement) and the other agreements and instruments the execution and delivery
of which are provided for herein constitutes the entire agreement and
understanding of the parties hereto and terminate and supersede any and all
prior agreements, arrangements and understandings, both oral and written,
between the parties hereto concerning the subject matter of this Agreement.
11.3 WAIVER AND AMENDMENT. No waiver, amendment, modification or change
of any provision of this Agreement shall be effective unless and until made in
writing and signed by all of the parties hereto. No waiver, forbearance or
failure by any party of its right to enforce any provision of this Agreement
shall constitute a waiver or estoppel of such party's right to enforce any other
provision of this Agreement or a continuing waiver by such party of compliance
with any provision.
11.4 HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement, and shall not be deemed to limit or affect
any of the provisions hereof.
11.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be original, but all of which
together shall constitute one and the same instrument.
11.6 INTERPRETATION. The provisions of this Agreement are intended to
be interpreted and construed in a manner so as to make such provisions valid,
binding and enforceable. In the event that any provision of this Agreement is
determined to be partially or wholly invalid, illegal or unenforceable, then
such provision shall be deemed to be modified or restricted to the extent
necessary to
21
make such provision valid, binding and enforceable, or, if such
provision cannot be modified or restricted in a manner so as to make such
provision valid, binding and enforceable, then such provision shall be deemed to
be excised from this Agreement and the validity, binding effect and
enforceability of the remaining provisions of this Agreement shall not be
affected or impaired in any manner. Nothing in this Agreement shall be
interpreted or construed as creating, expressly or by implication, a
partnership, joint venture or agency relationship between the parties hereto or
any of their respective officers, directors, agents, employees or
representatives.
11.7 NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been
delivered three business days after having been mailed in a general or branch
post office and enclosed in a registered or certified post-paid envelope; one
business day after having been sent by overnight courier; when delivered to a
telegraph company or when telecopied or scanned graphically or otherwise by
communications equipment of the sending party on a business day, or otherwise on
the next succeeding business day thereafter; and, in each case, addressed to the
respective parties at the addresses stated below or to such other changed
addresses the parties may have fixed by notice as provided herein:
IF TO SELLER, TO: Ali'i Water Bottling, Inc.
----------------
00-0000 Xxxxxxx Xxxxxx,
Xxxxxx-Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxxx, President
IF TO BUYER, TO: Hawaiian Natural Water Company, Inc.
---------------
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxxx, President
22
11.8 SUCCESSORS AND ASSIGNS. This Agreement shall not be assigned or
delegated by either party without the prior written consent of the other party,
except that Buyer may assign this Agreement and the right to receive the
Purchased Assets to one or more subsidiaries or affiliates of Buyer. Subject to
the preceding sentence, each term and provision of this Agreement shall be
binding upon and enforceable against and inure to the benefit of any successors
or assigns of Buyer and Seller. Nothing in this Agreement, expressed or implied,
is intended to confer on any person other than the parties and their respective
successors and assigns any rights or remedies under or by reason of this
Agreement.
11.9 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Hawaii, without regard to
the conflicts of laws principles thereof.
11.10 CONSTRUCTION. Whenever in this Agreement the context so requires,
references to the masculine shall be deemed to include feminine and the neuter,
reference to the neuter shall be deemed to include the masculine and feminine,
and references to the plural shall be deemed to include the singular and the
singular to include the plural.
11.11 COOPERATION. Each party hereto shall cooperate with the other
party and shall take such further action and shall execute and deliver such
further documents as may be necessary or desirable in order to carry out the
provisions and purposes of this Agreement.
11.12 EXPENSES. Whether or not the transactions contemplated by this
Agreement and the related agreements are consummated, each party to this
Agreement shall pay its own costs and expenses in connection with the
negotiation, preparation, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, including but not limited
to, attorneys' fees, accountants' fees and other professional fees and expenses.
23
IN WITNESS WHEREOF, Buyer, Seller and Xxxxxx have executed and
delivered this Agreement as of the day and year first above written.
HAWAIIAN NATURAL WATER COMPANY, INC.
By: /s/ XXXXXX XXXXXX
-------------------------------
Xxxxxx Xxxxxx, President
ALI'I WATER BOTTLING, INC.,
By: /s/ XXXXXX XXXXXX
-------------------------------
Xxxxxx Xxxxxx, President
/s/ XXXXXX XXXXXX
-------------------------------
Xxxxxx Xxxxxx, personally
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