AGREEMENT TO SELL AND PURCHASE
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THIS AGREEMENT TO SELL AND PURCHASE ("AGREEMENT") made as of the 2nd day of
March, 1998, but effective as of January 1, 1998, by and among Terrace Holdings,
Inc., a Delaware corporation (the "SELLER"), and Xxxxxx X. Xxxxx or his designee
(individually and collectively, the "BUYER").
RECITALS
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WHEREAS, the Seller is the owner of all of the issued and outstanding
capital stock (the "STOCK") of The Lasko Family Kosher Tours, Inc. ("TLFKT") and
A&E Management, Inc. ("A&E") (individually and collectively, the "COMPANY"); and
WHEREAS, the Seller is also the owner of all of the issued and outstanding
capital stock of The Lasko Companies, Inc. ("TLC") which operates the Terrace
Oceanside Restaurant in Hallandale, Florida ("Restaurant"); and
WHEREAS, pursuant to that certain Option Agreement made as of the 17th day
of February, 1997, between the Seller and the Buyer ("OPTION AGREEMENT"), the
Buyer was granted an option (the "OPTION"), to purchase all, or substantially
all, of the Subject Business (hereinafter defined) of the Company; and
WHEREAS, the Buyer has exercised the Option and desires to purchase the
Subject Business; and
WHEREAS, pursuant to the Option Agreement, the Seller and the Buyer agreed
that if the Buyer exercised the Option to purchase the Subject Business they
each would execute an Agreement substantially in the form hereof, and that the
sale and purchase of the Subject Business would be in accordance with the
provisions of this Agreement; and
WHEREAS, the parties hereto believe that the sale by the Seller to the
Buyer of the Subject Business will be in the best interests of the stockholders
of the Seller, and the Seller is willing to sell to the Buyer the Subject
Business on the terms and conditions set forth in this Agreement; and
WHEREAS, the Buyer is willing to purchase the Subject Business, on the
terms and conditions set forth in this Agreement; and
WHEREAS, the Buyer has notified the Seller of Buyer's intent to exclude TLC
from Buyer's exercise of his option, notwithstanding that Seller desires to sell
and dispose of the Restaurant business as well as the Subject Business; and
WHEREAS, pending Seller's sale or other disposition of the Restaurant to a
third party, Seller desires to engage Buyer and Buyer is willing to be engaged
as the manager of the Restaurant on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements set forth, and other good and valuable considerations,
the receipt and adequacy of which are hereby acknowledged, the parties,
intending to be legally bound, do hereby agree as follows:
1. Sale and Purchase. Upon the terms and subject to the conditions of
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this Agreement, on the Closing Date, as hereinafter defined, the Seller shall
sell, transfer, assign, convey and deliver to the Buyer, and the Buyer shall
purchase from the Seller, free and clear of all Encumbrances, all of the
Seller's right, title and interest in and to the Stock of the Company in
consideration of the Purchase Price.
(a) As used herein, the term "PURCHASE PRICE" shall mean and refer to
the price to be paid by Buyer for the Stock, which is the fair market value
of the Subject Business determined by The Xxxxxx Company ("Xxxxxx"), an
independent financial appraisal firm engaged for such purpose at Seller's
sole expense ("fairness opinion"). The Purchase Price has been accepted by
the Buyer and has the prior approval and recommendation thereof by a
committee of disinterested directors of the Seller appointed therefor and
Seller's full Board of Directors. Such Purchase Price in the aggregate is
$575,000. A copy of the fairness opinion dated February 5, 1998, is
attached hereto as Exhibit A.
(b) The Purchase Price shall be paid by Buyer by (i) surrendering his
current Employment Agreement expiring August 31, 2000 with Seller, which
Employment Agreement has been valued by Xxxxxx at $417,807 (as of January
1, 1998), and (ii) the surrender to Seller by Buyer of 114,322 warrants to
purchase common stock of Seller ( at an exercise of $1.1875 per share),
which warrants have been valued by Xxxxxx at $157,193.
2. Representations and Warranties. The Seller represents and warrants
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that it owns all of the Stock free and clear of all encumbrances of any kind or
nature, and will, upon Closing hereof, deliver to the Buyer good and marketable
title to the Stock, free and clear of all encumbrances. The Seller incorporates
herein by this reference its representations and warranties contained in Article
6 and the indemnities contained in Article 5 of that certain Asset Acquisition
Agreement dated as of December 9, 1996, as amended as of February 7, 1997, by
and among Seller and DownEast Frozen Desserts, LLC (the "ACQUISITION AGREEMENT")
as though fully recited herein and as though made with respect to the Subject
Business and if any of such provisions are ambiguous, such provisions shall be
interpreted
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as if they pertain to the Subject Business. In addition, the Seller further
incorporates by reference, as though fully recited herein, such other provisions
of the Acquisition Agreement designed to protect the Buyer from and after the
Closing thereof from obligations not agreed to be assumed by Buyer thereunder or
hereunder.
3. Subject Business Revenues, Expenses and Income. At or prior to the
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Closing hereunder, Seller shall cause the books, records and financial
statements of the Company, if any, for the calendar year 1998 to reflect only
the direct revenues, expenses, income, charges and similar matters directly
related to the operation of the Subject Business, and shall not reflect any
Seller corporate overhead in such fiscal year items, other than the following:
(a) compensation paid to or accrued for the Buyer; and
(b) a percentage of the legal and accounting fees equal to the
percentage that the revenues of the Subject Business bear to the total of
such revenues of the Seller in the aggregate shall be allocable to the
Subject Business.
The Company shall assume only those liabilities existing as of the Closing
which are directly related to the Subject Business, and such other liabilities
as are accepted by the Buyer. Direct expenses of TLFKT specifically incurred or
accrued in calendar year 1997 with respect to Passover, 1998, shall be allocable
to the Subject Business
The assumption by the Company or Buyer of certain liabilities of the
Subject Business shall in no way expand the rights or remedies of any third
party against the Company or Buyer as compared to the rights and remedies which
such third party would have had against the Seller had the Company not assumed
such liabilities. Without limiting the generality of the preceding sentence, the
assumption by the Company of such certain liabilities pursuant to the provisions
hereof shall not create any third party beneficiary rights.
4. Closing. The consummation of the sale and purchase of the Stock
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provided for in Section 1 (the "CLOSING") will be made, against delivery of
conveyance and transfer by appropriate instruments of transfer, including but
not limited to assignments, approvals, or such other appropriate instruments as
are requested by the Buyer which convey all of the Seller's right, title and
interest in and to the Stock of the Company to the Buyer, at two o'clock p.m. on
March 11, 1998 (such date and time being herein referred to as the "CLOSING
DATE"), at the offices of Fishman, Merrick, Miller, Genelly, Springer, Xxxxxx &
Xxxxxxxx, P.C., 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, or
such other time and place as shall be mutually agreed between the parties,
subject, however, to the provisions of Section 26 hereof. The effective date of
the transactions contemplated herein shall be as of January 1, 1998.
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The obligation of the Buyer to consummate the transactions contemplated
under this Agreement shall, at the option of the Buyer, be subject to the
satisfaction, on or prior to the Closing Date, of the following conditions set
forth in this Section 4. The Buyer may waive any or all of such conditions in
whole or in part without prior notice; provided, however, that no such waiver
shall constitute a waiver by the Buyer of any of its other rights or remedies,
at law or in equity if the Seller shall be in violation of any of its
representations, warranties, covenants, agreements or obligations under this
Agreement.
(a) There shall have been no breach by the Seller in the performance
of any of its covenants and agreements herein; each of the representations
and warranties of Seller contained or referred to herein shall be true and
correct in all respects on the Closing Date as though made on the Closing
Date, except for changes resulting from any transaction expressly consented
to in writing by the Buyer; and there shall have been delivered to Buyer a
certificate or certificates to such effect, dated the Closing Date, signed
by or on behalf of the Seller by its Chief Executive Officer or Executive
Vice President.
(b) The Seller shall have taken all corporate action necessary to
approve the transaction contemplated by this Agreement, and shall have
furnished the Buyer with certified copies of resolutions adopted by its
Board of Directors and stockholders in connection with such transaction, in
each case in form and substance reasonably satisfactory to counsel for the
Buyer.
(c) There shall not be in effect or, to the best knowledge of the
Seller, threatened any Order (preliminary, permanent or temporary) by a
Governmental Body of competent jurisdiction and no Legal Requirement shall
have been promulgated or enacted which, in any case, restrains or prohibits
the transaction contemplated hereby.
(d) The Seller shall have delivered to the Buyer such evidence as the
Buyer may request of the receipt of all actions and approvals to consummate
the transactions contemplated hereby.
(e) There shall not be pending or threatened any action or proceeding
by or before any court or other governmental body which shall seek to
restrain, prohibit or invalidate the sale of the Subject Business to the
Buyer, or which might affect the right of the Buyer to own, operate in
their entirety or control the Subject Business.
Any sales or other transfer taxes payable by reason of the transfer and
conveyance of the Stock to be sold, assigned, transferred and delivered
hereunder shall be paid by the Seller.
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5. Seller Non-Solicitation. For a period of three years from the Closing
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Date, neither the Seller nor any of its affiliates will directly or indirectly
induce or attempt to induce any employee of the Subject Business or of the Buyer
following the Closing to leave the employ of the Buyer or in any way interfere
with the relationship between any such employee and the Buyer. The Seller agrees
that the foregoing covenant is reasonable and that any remedy at law for any
breach by it of this would be inadequate, and that, in addition to other rights
or remedies existing in the Buyer's favor, the Buyer shall be entitled to
injunctive relief for any such breach, without bond. If a court of competent
jurisdiction declines to enforce this provision on the grounds that the
restrictions are too onerous or otherwise not necessary for the protection of
the Buyer, the parties hereto agree that the maximum period and scope
permissible under such circumstances will be substituted for the period and
scope stated herein.
6. Management of Restaurant. From and after the date hereof, Buyer or
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his designee shall manage and operate the Restaurant for and on behalf of Seller
in accordance with a management agreement substantially in the form of Exhibit B
attached hereto. Said management agreement shall provide a management fee, if
any, to be paid to Buyer as therein set forth and shall terminate on the earlier
of the end of the calendar month one year after the Closing hereunder occurs or
the date of sale or other disposition by Seller of TLC or the Restaurant.
7. Indemnification.
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(a) Indemnification by the Seller. The Seller hereby indemnifies and
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holds harmless Buyer, his Affiliates, each of their respective directors,
officers, employees and agents, and each of the heirs, executors,
successors and assigns of each of the foregoing (collectively, the "BUYER
INDEMNIFIED PARTIES") from and against any and all Losses and Expenses
incurred by any Buyer Indemnified Party in connection with, resulting from
or arising out of:
(i) any breach by the Seller, or any other failure of the
Seller to perform, any of its covenants, agreements or obligations in
this Agreement or in any executed agreement or instrument contemplated
hereby; or
(ii) any breach of any warranty or the inaccuracy of any
representation of the Seller contained or referred to in this
Agreement or in any certificate delivered by or on behalf of the
Seller pursuant hereto.
(b) Indemnification by Buyer. The Buyer hereby indemnifies and holds
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harmless the Seller, its Affiliates, its respective directors, officers,
employees and agents, and each of the heirs, executors, successors and
assigns of each of the
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foregoing (the "Seller Indemnified Parties") from and against any and all
Losses and Expenses incurred by any Seller Indemnified Party in connection
with, resulting from or arising out of any material breach by the Buyer of
this Agreement.
(c) Notice and Other Provisions. Promptly after receipt by an
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indemnified party hereunder of notice of the commencement of any action,
claim or other fact or occurrence for which indemnification is due pursuant
to this Agreement, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing of such claim or the commencement thereof
within a reasonable time hereafter; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any
liability which it may have to any indemnified party hereunder except to
the extent the failure to so notify the indemnifying party resulted in
Losses. In case any such action shall be brought against any indemnified
party, and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in, and,
to the extent that it shall wish, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it which are
different from or additional to those available to the indemnifying party,
the indemnified party shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this section for any legal or other Expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed such
counsel in connection with the assumption of legal defenses in accordance
with the proviso to the preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more
than one separate counsel, approved by the indemnified party), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party. Notwithstanding any provision to the
contrary, neither the Seller nor the Buyer shall be liable for amounts paid
in settlement of any litigation or claim if such settlement was effected
without its or his consent.
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8. Public Announcements. Until such time as may be mutually agreed upon
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by the parties to this Agreement, neither party hereto shall, without the
approval of the other party, make or cause to be made any press release or other
public announcement concerning the transactions contemplated by this Agreement
except and as to the extent required by law or regulation, including without
limitation applicable federal and state securities laws and regulations.
9. Expenses. Except as otherwise expressly set forth herein, the Seller
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shall pay or reimburse expenses of the parties incident to the performance and
enforcement of this Agreement (including all fees and expenses of respective
counsel, accountants and other consultants, advisors and representatives),
whether or not the transactions contemplated hereby are consummated.
10. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof and supersedes all
prior agreements, arrangements, covenants, promises, conditions, understandings,
inducements, representations and negotiations, expressed or implied, written or
oral, between them as to such subject matter.
11. Specific Performance; Other Rights and Remedies. The parties
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recognize that certain of their rights under this Agreement are unique and,
accordingly, in addition to such other remedies as may be available to any of
them at law or in equity, the parties shall have the right to enforce their
rights hereunder by actions for injunctive relief and specific performance to
the extent permitted by law, without bond.
12. Waivers; Amendments. Any amendments to or modifications of this
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Agreement shall be made only with the written consent of the party entitled to
the benefit thereof. Any such waiver shall not operate as a further or
continuing waiver hereunder, nor shall any failure to enforce or require strict
performance operate as a waiver hereunder except as is expressly set forth
herein and no such waiver shall be effective unless in writing.
13. Assignments; Successors and Assigns. This Agreement shall not be
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assignable by any party without the prior written consent of the other;
provided, however, that notwithstanding the foregoing, the Buyer shall have the
right to designate an Affiliate or Affiliates to receive, acquire and assume the
Stock or the Subject Business.
This Agreement shall be binding and inure to the benefit of the parties
hereto and their respective heirs, successors and permitted assigns, including
without limitation successors by operation of law pursuant to any merger,
consolidation or sale of assets involving any of the parties.
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14. Notices. All notices and other communications permitted or required
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under this Agreement shall be given in writing and shall be (a) mailed by First
Class or Express Mail, postage prepaid, (b) sent by facsimile or other form of
rapid transmission, confirmed thereafter as in (a) above, or (c) personally
delivered to the receiving party. All such notices and communications shall be
mailed, sent or delivered as follows:
If to the Seller, at:
Terrace Holdings, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
If to the Buyer, at:
Xxxxxx X. Xxxxx
c/o 0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
or to such other persons as the party to receive such communication or notice
may have designated by written notice to the other party. Notice shall be
effective when given, except in the case of notice by mail, which shall become
effective two business days after mailing provided there is written proof of
such mailing.
15. Severability. The invalidity, illegality or unenforceability of any
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of the provisions of this Agreement shall not invalidate the balance hereof, but
this Agreement shall be reformed and construed as if such invalid, illegal or
unenforceable provision(s) were not contained herein. The parties shall endeavor
in good faith negotiations to replace the invalid, illegal or unenforceable
provision(s) with valid, legal and enforceable provisions, the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provision(s).
16. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed an original, but all of which shall constitute one
and the same instrument binding upon the parties hereto.
17. Further Acts. The parties hereto each agree that any time, and from
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time to time, before and after the consummation of the transactions contemplated
by this Agreement, it/he will do all such things and execute and deliver all
agreements, assignments, instruments, other documents and assurances, as any
other party or its/his counsel reasonably deems
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necessary or desirable in order to carry out the terms and conditions of this
Agreement and the transactions contemplated hereby or to facilitate the
enjoyment of any of the rights created hereby or to be created hereunder.
18. Governing Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by and construed under the laws
of the State of Florida without giving effect to any choice or conflicts of laws
provisions.
19. Consent to Jurisdiction and Service. Each of the parties hereby
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consents and submits to the jurisdiction of the courts of the State of Florida
and of any federal court located in said jurisdiction in connection with any
actions or proceedings brought against it by any other party to this Agreement
arising out of or relating to this Agreement and hereby agrees that any and all
claims in respect of any such act or proceeding may be heard and determined in
any such court.
20. Inspection and Information. The Buyer may on or prior to the Closing
--------------------------
hereunder, through its representatives and counsel, make such investigation of
the business, properties and assets, and of the financial and legal condition of
the Company and the Subject Business, as the Buyer may deem necessary or
advisable, and the Seller agrees, at its expense, to cooperate therewith and
make all persons and documents relevant to such inquiry reasonably available.
21. Section Headings. The headings contained in this Agreement are for
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reference purposes only and shall not in any way affect the meaning of
interpretation of this Agreement.
22. Certain Terminology. Whenever used herein, the singular number shall
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include the plural, the plural shall include the singular, and the use of any
gender shall include all genders, except where the context otherwise requires,
reference to "this section" or words of similar import shall be deemed to refer
to the entire section and not a particular subsection and references to
"hereunder," "herein," "hereof" or words of similar import shall be deemed to
refer to the entire Agreement and not the particular section or subsection.
23. Termination. Anything contained in this Agreement to the contrary
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notwithstanding, this Agreement may be terminated at any time prior to the
Closing Date (a) by the mutual consent of the Buyer and the Seller, (b) by the
Buyer, on the one hand, or the Seller, on the other hand, if the Seller, on the
one hand, or the Buyer on the other hand, shall have materially breached any of
their respective agreements, obligations or covenants contained in this
Agreement or if any of their respective representations or warranties contained
in this Agreement shall have been inaccurate when made. In the event that this
Agreement shall be terminated pursuant to this Section 23, all further
obligations of the
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parties under this Agreement (other than Sections 6, 7 and 10) shall be
terminated without further liability of any party to the other, provided that
nothing herein shall relieve any party from liability for its breach of this
Agreement.
24. Definitions. As used herein, unless context otherwise requires, the
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following terms shall have the following respective meanings:
(a) "AFFILIATE" of any person shall mean any person which directly or
indirectly owns or controls or is under common ownership or control with or
is controlled by such person.
(b) "EXPENSES" means any and all expenses (i) reasonably incurred in
connection with investigating, preparing and defending, bringing or
prosecuting any claim, action, suit or proceeding (including, without
limitation, court filing fees, court costs, arbitration fees or costs,
witness fees, and reasonable fees and disbursement of legal counsel,
investigators, expert witnesses, accountants and other professionals) and
(ii) incurred by a Governmental Body and legally required to be paid by any
indemnified person.
(c) "GOVERNMENTAL BODY" means any court, government (federal, state,
local or foreign), department, commission, board, agency, official or other
regulatory, administrative or governmental authority.
(d) "LEGAL REQUIREMENT" means any law, statute, rule, regulation,
ordinance, variance, directive, code or requirement of any Governmental
Body.
(e) "LIABILITIES" means all indebtedness, liabilities, obligations
and commitments of the Company directly related to the Subject Business and
shown on the balance sheet of the Company and which are outstanding at the
time of Closing.
(f) "LOSSES" means any and all losses, costs, obligations,
liabilities, settlement payments, awards, judgments, fines, penalties,
damages, expenses, deficiencies or other charges, but shall not include
Expenses.
(g) "ORDER" means any order, writ, injunction, ruling, judgment,
stipulation or decree by or with any Governmental Body.
(h) "SUBJECT BUSINESS" shall mean and refer to all of the business,
assets, (subject to Section 3 hereof), Contracts and other items used or
useful in the operations of the Company and the Division of the Seller, all
as listed on Exhibit A attached hereto, or to be attached under Section 4
prior to the Closing.
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25. Joint Representation. The parties hereto expressly acknowledge and
--------------------
agree that they each have requested the law firm of Fishman, Merrick, Miller,
Genelly, Springer, Xxxxxx & Xxxxxxxx, P.C. to represent them jointly with
respect to this Agreement and related matters and they acknowledge and expressly
waive any right or opportunity to assert a claim against said Fishman, Merrick,
Miller, Genelly, Springer, Xxxxxx & Xxxxxxxx, P.C. by reason of conflict of
interest. The parties further acknowledge, understand and agree that in the
event of any dispute between them under this Agreement or relating to the
matters contemplated herein that said Fishman, Merrick, Miller, Genelly,
Springer, Xxxxxx & Xxxxxxxx, P.C. will withdraw as counsel to either party
therein, but may continue to act as counsel to both parties in other matters
without any limitation whatsoever subject only to the applicable Code of
Professional Responsibility requirements as said firm shall determine.
26. Stockholders' Vote Requirement. The transactions contemplated by this
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Agreement shall be submitted for ratification by a majority of the stockholders
of Seller voting thereon at a meeting of Seller's stockholders duly called.
Seller shall submit this transaction for such ratification at its 1998 Annual
Meeting of Stockholders or as soon thereafter as is practicable. The
transactions contemplated and consummated hereunder shall be deemed ratified
upon the Seller receiving such affirmative vote of a majority of shareholders
voting at such meeting.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
TERRACE HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Chairman
and Chief Executive Officer
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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EXHIBIT A
FAIRNESS OPINION
EXHIBIT B
MANAGEMENT AGREEMENT
