Exhibit 10.4
ASSET PURCHASE AGREEMENT
BY AND AMONG
AMERICAN RIVET COMPANY, INC.
INDUSTRIAL HOLDINGS, INC.
AND
ARC ACQUISITION CORP.
Dated as of
October 26, 2001
TABLE OF CONTENTS
Page
1. Assets Purchased....................................................................... 2
1.1 Equipment.................................................................... 2
1.2 Inventory.................................................................... 2
1.3 Receivables.................................................................. 2
1.4 Real Property................................................................ 2
1.5 Goodwill..................................................................... 2
1.6 Outstanding Purchase Orders.................................................. 2
1.7 Contracts.................................................................... 2
1.8 Other Assets................................................................. 2
2. Excluded Assets........................................................................ 3
2.1 All Cash and Cash Equivalents................................................ 3
2.2 Tax Deposits and Refunds..................................................... 3
2.3 Corporate Records............................................................ 3
2.4 Insurance Policies........................................................... 3
2.5 Employee Records............................................................. 3
2.6 Employee Plans............................................................... 3
2.7 Assets related to Excluded Liabilities....................................... 3
3. Liabilities............................................................................ 3
3.1 Liabilities Assumed.......................................................... 3
(a) Trade Accounts Payable............................................. 3
(b) Other Accrued Payables............................................. 3
(c) Outstanding Customer and Supplier Purchase Orders.................. 4
(d) Vacation Accruals.................................................. 4
(e) Assumed Contracts.................................................. 4
(f) Real Property Estate Taxes......................................... 4
(g) Warranty Claims.................................................... 4
(h) Buyer Deficiencies................................................. 4
3.2 Excluded Liabilities......................................................... 4
(a) Taxes.............................................................. 4
(b) Employee Plans..................................................... 4
(c) Environmental...................................................... 4
(d) Comerica Note...................................................... 4
(e) MGF Note........................................................... 4
(f) Xxxxxx Note........................................................ 4
(g) Accrued Interest................................................... 4
(h) Intercompany Payables.............................................. 5
(i) Accrued Acquisition Expenses....................................... 5
(j) Accrued Sales and Use Tax.......................................... 5
(k) Accrued Business Insurance Expenses................................ 5
ASSET PURCHASE AGREEMENT i EXECUTION COPY
3.3 Employees.................................................................... 5
4. Purchase Price for Purchased Assets.................................................... 5
4.1 Purchase Price............................................................... 5
4.2 Allocation of Purchase Price................................................. 5
5. Closing Matters........................................................................ 5
5.1 Closing...................................................................... 5
5.2 Deliveries Prior to Closing.................................................. 5
5.3 Deliveries At Closing........................................................ 6
(a) Deliveries by the Seller Parties................................... 6
(b) Deliveries by the Buyer............................................ 7
6. Seller Parties' Representations and Warranties......................................... 8
6.1 Organization and Standing.................................................... 8
6.2 Authorization................................................................ 8
6.3 Existing Agreements and Other Approvals...................................... 9
6.4 No Subsidiaries.............................................................. 9
6.5 No Insolvency................................................................ 9
6.6 Permits and Licenses......................................................... 9
6.7 Financial Statements......................................................... 10
6.8 Inventory.................................................................... 10
6.9 Receivables.................................................................. 10
6.10 No Undisclosed Liabilities................................................... 10
6.11 Conduct of Business.......................................................... 10
6.12 No Adverse Changes........................................................... 12
6.13 Employees.................................................................... 12
6.14 Employee Benefit Plans....................................................... 12
6.15 Contracts.................................................................... 13
6.16 Title to Purchased Assets; Liens............................................. 13
6.17 Taxes........................................................................ 14
6.18 Litigation................................................................... 15
6.19 Product Liability............................................................ 15
6.20 Environmental Matters........................................................ 15
6.21 No Brokers................................................................... 16
6.22 Intellectual Property........................................................ 16
6.23 Compliance with Law.......................................................... 17
6.24 Insurance.................................................................... 17
7. Buyer's Representations and Warranties................................................. 17
7.1 Organization and Standing.................................................... 17
7.2 Authorization................................................................ 17
7.3 Existing Agreements and Governmental Approvals............................... 17
7.4 No Brokers................................................................... 18
ASSET PURCHASE AGREEMENT ii EXECUTION COPY
8. Post-Closing Covenants................................................................. 18
8.1 Post-Closing Receipts........................................................ 18
8.2 Seller Name.................................................................. 18
8.3 Further Assurances........................................................... 18
8.4 Books and Records............................................................ 18
8.5 Waiver....................................................................... 19
8.6 Collection of Receivables.................................................... 19
8.7 Warranty and Returns......................................................... 19
8.8 Employee Payables............................................................ 19
9. Indemnification........................................................................ 20
9.1 Survival of Representations and Warranties................................... 20
9.2 Indemnification by the Seller Parties........................................ 20
9.3 Indemnification by the Buyer................................................. 20
9.4 Procedure for Indemnification; Third-Party Claims............................ 21
9.5 Procedure for Indemnification; Other than Third-Party Claims................. 21
9.6 Time Limitations............................................................. 21
9.7 Limitations on Liability..................................................... 22
9.8 Remedies..................................................................... 23
10. Expenses............................................................................... 23
11. Miscellaneous Provisions............................................................... 23
11.1 Notices...................................................................... 23
11.2 Assignment................................................................... 24
11.3 Parties in Interest.......................................................... 24
11.4 Choice of Law................................................................ 24
11.5 Counterparts................................................................. 24
11.6 Entire Agreement............................................................. 24
11.7 Arbitration.................................................................. 25
11.8 Public Announcements......................................................... 26
11.9 Facsimile Signatures......................................................... 26
11.10 Construction................................................................. 26
ASSET PURCHASE AGREEMENT iii EXECUTION COPY
EXHIBITS AND SCHEDULES
Exhibit A - Nonsolicitation Agreement
Exhibit B - Transitional Services Agreement
Exhibit C - Title Insurance Endorsements
Exhibit D - Xxxx of Sale and Assignment
Exhibit E - Assignment and Assumption Agreement
Exhibit F - Purchase Price Disbursement Instruction Letter
Exhibit G - Warranty Deed
Exhibit H - Consulting Agreement
Exhibit I - No Further Remediation Letter
Exhibit J - Escrow Agreement and Instructions
Exhibit K - Inspection Report
Schedule 1.1 - Equipment
Schedule 1.2 - Inventory
Schedule 1.3 - Receivables
Schedule 1.4 - Real Property
Schedule 1.6 - Outstanding Customer Purchase Orders
Schedule 1.7 - Assumed Contracts
Schedule 1.8 - Other Assets
Schedule 3.1(a) - Trade Accounts Payable
Schedule 3.1(b) - Other Accrued Payables
Schedule 3.1(c) - Outstanding Supplier Purchase Orders
Schedule 5.3(a)(iv) - Permitted Liens
Schedule 6.3(a) - Existing Agreements of Seller Parties
Schedule 6.3(b) - Other Approvals of Seller Parties
Schedule 6.6 - Permits and Licenses
Schedule 6.7 - Financial Statements
Schedule 6.11 - Conduct of Business
Schedule 6.12 - No Adverse Changes
Schedule 6.13 - Employees
Schedule 6.14 - Employee Benefit Plans
Schedule 6.15 - Contracts
Schedule 6.16 - Title to Purchased Assets; Liens
Schedule 6.20 - Environmental Matters
Schedule 6.21 - Brokers
Schedule 6.22 - Intellectual Property
Schedule 6.24 - Insurance
ASSET PURCHASE AGREEMENT iv EXECUTION COPY
ASSET PURCHASE AGREEMENT
(AMERICAN RIVET)
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made as of October
26, 2001, by and among AMERICAN RIVET COMPANY, INC., an Illinois corporation
(the "Seller"), INDUSTRIAL HOLDINGS, INC., a Texas corporation ("IHI") (the
Seller and IHI sometimes collectively referred to herein as the "Seller
Parties"), and ARC ACQUISITION CORP., an Illinois corporation (the "Buyer").
BACKGROUND
A. IHI is the owner of all the issued and outstanding capital stock of the
Seller.
B. The Seller manufactures and distributes solid, semi-tubular and tubular
rivets, externally-threaded fasteners and other cold-headed special
parts in diameters from 0.038" to 3/8" (the "Business"):
C. The Seller is currently part of IHI's Engineered Products Group
division (the "EPG Division"), along with IHI's wholly owned subsidiary
Xxxxxxxx Metal Forming, Inc. ("Xxxxxxxx"). Xxx Machinery Movers, Inc.
d/b/a Ideal Products ("Ideal Products"), Philform, Inc. ("Philform"),
and its affiliate OF Acquisition, L.P. d/b/a Orbitform ("Orbitform"),
which recently sold substantially all of their assets to one buyer,
were formerly part of the EPG Division (the Seller, Xxxxxxxx, Ideal
Products, Philform, and Orbitform collectively, the "EPG Division
Members"). As part of the strategic disposition of the assets of the
EPG Division Members from IHI's core business, Ideal Products,
Philform, and Orbitform have sold, and Xxxxxxxx is selling,
substantially all of their assets to purchasers other than the Buyer.
However, the acquirors thereof, as well as the Buyer, are interested in
(i) maintaining the customer and manufactured part base that the EPG
Division Members currently have and enjoy, without the prospect of the
solicitation of those customers by each other, and (ii) continuing to
utilize certain computer hardware and services previously shared among
the EPG Division Members. Therefore, as a condition precedent to the
Closing (as defined below), Buyer shall succeed to Seller's rights and
assume Seller's obligations under (i) a customer and manufactured
part-based nonsolicitation agreement attached as EXHIBIT A (the
"Nonsolicitation Agreement") and (ii) a transitional services agreement
attached as EXHIBIT B (the "Transitional Services Agreement").
D. The Business of the Seller is conducted at an owned manufacturing
facility in Franklin Park, Illinois, consisting of a 81,000 square foot
facility (the "Premises") on 175,000 square feet, commonly known as
00000 X. Xxxxxxx Xx., Xxxxxxxx Xxxx, Xxxxxxxx (the "Real Property").
E. Buyer desires to purchase, and Seller desires to sell to Buyer, the
Purchased Assets (as defined below) on the terms and subject to the
conditions of this Agreement.
AGREEMENTS
NOW, THEREFORE, consistent with the Background and in consideration of
the terms and conditions set forth in this Agreement, each of the Seller Parties
and Buyer agree as follows:
ASSET PURCHASE AGREEMENT EXECUTION COPY
1. ASSETS PURCHASED. At the Closing, Seller shall sell, assign, convey,
transfer, set over, and deliver to Buyer all of the assets, rights, and
interests of every conceivable kind or character whatsoever, whether
tangible or intangible, that on the Closing Date (as defined below) are
owned by Seller or in which Seller has an interest of any kind, except
for the Excluded Assets (as defined below) (the assets being so
purchased, the "Purchased Assets"). The Purchased Assets include,
without limitation:
1.1 EQUIPMENT. All machinery, equipment, tools, fixtures, workstations,
computers, office equipment, manufacturing and engineering drawings,
and tangible personal property owned by Seller, and to the extent not
otherwise constituting equipment as defined herein, all other items of
tangible personal property (including, without limitation, the items
listed on SCHEDULE 1.1) (the "Equipment").
1.2 INVENTORY. All raw materials inventory, work-in-process inventory, and
finished goods inventory owned by Seller on the Closing Date
(including, without limitation, the items listed on SCHEDULE 1.2) (the
"Inventory").
1.3 RECEIVABLES. All accounts, chattel paper, documents, and instruments
(all as defined in the Uniform Commercial Code (the "UCC") and any
security Seller holds for the payment thereof on the Closing Date
(including, without limitation, the items described on SCHEDULE 1.3)
(the "Receivables"), and all of Seller's general intangibles (as
defined in the UCC) (except as they may pertain to Seller's liabilities
other than Assumed Liabilities described in Section 2 below).
1.4 REAL PROPERTY. Indefeasible title in fee simple to ownership of the
Real Property as further described on SCHEDULE 1.4.
1.5 GOODWILL. The name "American Rivet Company," or any substantial
derivation thereof, and any assumed name currently used in the
Business, and all telephone numbers, fax numbers, and all Seller's
rights and interest in and to inventions, copyrights, patents,
trademarks, designs, prototypes, trade secrets, know-how, technology,
technical literature, advertising literature, confidential information,
intangible property, and all goodwill, going concern value and customer
lists, all financial books and records, quoting systems or any other
accounting or counting systems, and all records pertinent to the
customers, suppliers, advertising, services, and operations of the
Seller (the "Goodwill").
1.6 OUTSTANDING PURCHASE ORDERS. The full benefit of any and all purchase
orders placed with and accepted by Seller on or before the Closing Date
that have not been completely performed by Seller before the Closing
Date, covering the purchase from Seller of products to be supplied by
Seller, or covering the rendition by Seller of service on products
supplied by Seller (including, without limitation, those items listed
on SCHEDULE 1.6) (the "Outstanding Customer Purchase Orders").
1.7 CONTRACTS. All of the Sellers' right, title and interest in and to, and
claims and rights under, the assumed contracts listed on SCHEDULE 1.7
(the "Assumed Contracts")
1.8 OTHER ASSETS. All other assets of the Seller, including insurance
benefits (and the cash surrender value of two life insurance policies
on the two former owners of Seller (Xxxxx Xxxxx and Xxxxxxx Xxxxxx),
and other claims and rights used in, related to, or pertaining to
ASSET PURCHASE AGREEMENT 2 EXECUTION COPY
the Business (including, without limitation, the items described in
SCHEDULE 1.8), except for the Excluded Assets (as defined below) (the
"Other Assets").
2. EXCLUDED ASSETS. The only assets of the Seller that are not being
purchased hereunder are as follows (collectively, the "Excluded
Assets"):
2.1 ALL CASH AND CASH EQUIVALENTS. All of the Seller's cash, temporary cash
investments and instruments representing the same and all other cash
equivalents, including checks, automated clearing house deposits or
cash delivered to Comerica Bank-Texas ("Comerica") on the Closing Date
or held by Comerica on the Closing Date.
2.2 TAX DEPOSITS AND REFUNDS. Any Tax (as defined below) deposits or
prepaid Taxes, Tax refunds or claims related to the Business or the
ownership of the Purchased Assets prior to the Closing Date.
2.3 CORPORATE RECORDS. Articles of Incorporation and original minute books
and corporate records of the Seller (it being agreed that a copy of
such documents shall be supplied to the Buyer on its request).
2.4 INSURANCE POLICIES. All casualty, liability, life or other insurance
policies owned or obtained on the Seller's behalf and all claims or
rights under any such insurance policies (excluding the two life
insurance policies on the aforesaid former owners of Seller).
2.5 EMPLOYEE RECORDS. All employee records that Seller is required by law
to retain in its possession (it being agreed that copies of such
records shall be supplied to Buyer on its request).
2.6 EMPLOYEE PLANS. All of Seller's rights in connection with, and all
assets of, its Employee Plans (as defined below).
2.7 ASSETS RELATED TO EXCLUDED LIABILITIES. All assets related to Excluded
Liabilities (as defined below).
3. LIABILITIES.
3.1 LIABILITIES ASSUMED. The parties agree that Buyer assumes no
liabilities of Seller Parties, whether accrued, absolute, contingent,
known, unknown, or otherwise, except for the following as they exist on
the Closing Date (the liabilities so assumed, the "Assumed
Liabilities"):
(a) TRADE ACCOUNTS PAYABLE. The trade accounts payable of Seller
that (i) are not over 90 days from the date of invoice as of
the Closing Date, as incurred in the Ordinary Course of
Business (as defined below) with respect to the materials or
services used in the conduct of the Business, a listing of
which as of October 25, 2001, is included on SCHEDULE 3.1(a),
and (ii) are over 90 days from the date of invoice as of the
Closing Date that are designated with an asterisk on SCHEDULE
3.1(a);
(b) OTHER ACCRUED PAYABLES. The other accrued payables incurred in
the Ordinary Course of Business as of the Closing Date that
are directly related to the Business, a listing of which as of
October 25, 2001 is set forth on SCHEDULE 3.1(b);
ASSET PURCHASE AGREEMENT 3 EXECUTION COPY
(c) OUTSTANDING CUSTOMER AND SUPPLIER PURCHASE ORDERS. All
obligations of the Seller under the Outstanding Customer
Purchase Orders and under Seller's outstanding purchase orders
with its vendors that are not yet recorded as trade accounts
payable, a listing of which as of October 25, 2001 is included
on SCHEDULE 3.1(c);
(d) VACATION ACCRUALS. All obligations of the Seller for any
vacation accruals for the Employees (as defined in Section
6.13);
(e) ASSUMED CONTRACTS. All obligations of the Seller under the
Assumed Contracts;
(f) REAL PROPERTY ESTATE TAXES. All real property ad valorem taxes
relating to the Real Property for the current tax year;
(g) WARRANTY CLAIMS. All obligations under warranty claims related
to products manufactured and sold to satisfy the Outstanding
Customer Purchase Orders; and
(h) BUYER DEFICIENCIES. All obligations in connection with or
related to the B Deficiencies (as defined in Section 9.7(f)).
3.2 EXCLUDED LIABILITIES. Buyer does not assume and will have no liability
for any debt, liability or obligation of IHI or the Seller not
expressly assumed in SECTION 3.1. Without limiting the generality of
the foregoing sentence in any way, listed below are several of the
liabilities and obligations that Buyer does not assume and will not be
liable or responsible for (collectively, the "Excluded Liabilities"):
(a) TAXES. Any Tax liability of the Seller Parties;
(b) EMPLOYEE PLANS. Any liability under or with respect to any
Employee Plan;
(c) ENVIRONMENTAL. Any liability under any Environmental Laws (as
defined below) occurring or existing for events or
circumstances existing prior to the Closing and arising out of
or related to (i) any pre-Closing conduct, operation or
activity at the Real Property; (ii) any pre-Closing condition
of the Real Property; or (iii) Seller's lease, ownership or
operation of real property, including the Real Property, prior
to the Closing;
(d) COMERICA NOTE. All liabilities and obligations of either
Seller Party under the Amended and Restated Credit Agreement
with Comerica, dated June 17, 1999;
(e) MGF NOTE. All liabilities and obligations of the Seller under
the promissory note, dated August 3, 2001, in the original
principal amount of $657,225.86, made payable to the order of
MGF Industries, L.L.C;
(f) XXXXXX NOTE. All liabilities and obligations of the Seller
under that Promissory Note dated November 10, 1997, payable to
Xxxxxx Financial, Inc. in the original principal amount of
$8,000,000;
(g) ACCRUED INTEREST. All accrued interest related to the notes
described in subparagraphs 3.2(d)-(f) above;
ASSET PURCHASE AGREEMENT 4 EXECUTION COPY
(h) INTERCOMPANY PAYABLES. All payables included in the line item
titled "Interco payables (rec)" reflected on the balance sheet
of the Seller as of August 31, 2001 included in SCHEDULE 6.7
hereto, and those recorded in the financial records of Seller
after that date in the Ordinary Course of Business;
(i) ACCRUED ACQUISITION EXPENSES. Any and all expenses recorded by
IHI as part its purchase accounting in connection with the
acquisition of the Seller;
(j) ACCRUED SALES AND USE TAX. All accrued sales and use taxes of
the Seller as of the Closing Date; and
(k) ACCRUED BUSINESS INSURANCE EXPENSES. All accrued business
insurance of the Sellers (to the extent accrued on a
consistent basis).
3.3 EMPLOYEES. As of the Closing Date, the Buyer shall make offers of
employment to all Employees at salaries or wage rates, as applicable,
comparable to those provided by the Seller before the Closing Date, and
shall become the employer of all of the Employees who accept such
employment offers; provided, however, that Buyer shall offer to the
Employees such employee and fringe benefits as Buyer determines in its
sole discretion.
4. PURCHASE PRICE FOR PURCHASED ASSETS.
4.1 PURCHASE PRICE. The purchase price to be paid by wire transfer in
immediately available funds by Buyer to Seller for the Purchased Assets
(the "Purchase Price") shall, in addition to the Assumed Liabilities,
be $4,653,145.
4.2 ALLOCATION OF PURCHASE PRICE. The Purchase Price and the Assumed
Liabilities shall be allocated among the Purchased Assets based on
Buyer's and Seller's good faith and reasonable determination thereof,
and in accordance with Section 1060 of the Internal Revenue Code of
1986, as amended (the "Code") and the regulations promulgated
thereunder. Such allocation shall be made in writing by Buyer and
delivered to Seller within 60 days after the date hereof, and shall be
binding on the Buyer and Seller for all purposes. Buyer and Seller
agree to file all other returns and reports in a manner consistent with
such allocation.
5. CLOSING MATTERS.
5.1 CLOSING. The closing of the transactions provided for in this Agreement
(the "Closing") shall occur at the offices of Xxxxx & XxXxxxxx, Suite
3900, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, at 10:00 a.m.,
on October 26, 2001 (the "Closing Date"), or in such other manner as
the parties agree to.
5.2 DELIVERIES PRIOR TO CLOSING. Prior to the Closing, the Seller delivered
to the Buyer:
(a) a copy of the Nonsolicitation Agreement;
(b) a copy of the Transitional Services Agreement;
(c) a title commitment (the "Title Commitment") issued by Chicago
Title Insurance Company (the "Title Insurer") to insure title
to the Real Property, including all
ASSET PURCHASE AGREEMENT 5 EXECUTION COPY
insurable easements, if any, for the benefit thereof and
appurtenant thereto, in the amount of the portion of the
Purchase Price applicable to the Real Property, naming Buyer
as the proposed insured and having an effective date before
the date of this Agreement, wherein the Title Insurer will
commit to issue an ALTA 1992 form owner's policy of title
insurance with respect to the Real Property together with the
endorsements thereto specified in EXHIBIT C attached hereto;
(d) complete and legible copies of all recorded documents listed
as Schedule B matters to be terminated or satisfied in order
to issue the policy described in each Title Commitment or as
special Schedule B exceptions thereunder; and
(e) an ALTA/ACSM Land Title Survey of the Real Property (the
"Survey") dated October 18, 2001, made by Xxxx X. Xxx
Professional Land Surveyors, P.C., a professional land
surveyor licensed by the state of Illinois, and bearing an
ALTA certificate, and signed and sealed by the surveyor.
5.3 DELIVERIES AT CLOSING.
(a) DELIVERIES BY THE SELLER PARTIES. At the Closing, the Seller
or the other indicated parties executed and delivered or
provided, as applicable, to Buyer:
(i) the Xxxx of Sale and Assignment conveying the
Purchased Assets, attached as EXHIBIT D;
(ii) the Assignment and Assumption Agreement, attached as
EXHIBIT E;
(iii) the Purchase Price Disbursement Instruction Letter,
attached as EXHIBIT F;
(iv) either (A) UCC-3 termination statements as are
required to terminate and release all liens on the
Purchased Assets (including without limitation the
Liens disclosed on SCHEDULE 6.16), or (B) letters of
creditors indicating that such Liens shall be
released on the Seller's payment of identified
amounts payable, in each case except for Permitted
Encumbrances and the permitted liens ("Permitted
Liens") listed on SCHEDULE 5.3(a)(iv);
(v) a warranty deed conveying the Real Property, attached
as EXHIBIT G;
(vi) the Title Insurer's pro forma title insurance policy
based on the Title Commitment deleting all
requirements listed therein for issuing the subject
title policy, amending the effective date thereof to
the date of recordation of the deed transferring
title to the Real Property to Buyer with no exception
for the gap between original date of issuance of the
Title Commitment and recordation, deleting or
insuring over any title objections which are not
Permitted Encumbrances, attaching all endorsements
required hereunder, and insuring Buyer's interest in
the Real Property, as evidenced by the Title
Insurer's acknowledgment of receipt of the Joint
Escrow Instruction Letter to the Title Insurer
delivering various closing documents pertaining to
the conveyance of the Real Property;
ASSET PURCHASE AGREEMENT 6 EXECUTION COPY
(vii) certificates, dated as of a date no earlier than 15
days before the Closing Date, duly issued by the
appropriate governmental authority in the State of
Illinois, reflecting that Seller is in existence and
in good standing in such state;
(viii) the Consulting Agreement attached as EXHIBIT H (the
"Consulting Agreement");
(ix) Articles of Amendment to the Articles of
Incorporation of the Seller changing its name to a
name other than "American Rivet Company, Inc.";
(x) a certification stating Seller's U.S. taxpayer
identification number and that Seller is not a
"foreign person" as defined in Code Section
1445(f)(3);
(xi) an affidavit signed and sworn to on behalf of Seller
(to accompany the deed conveying the Real Property)
that the provisions of the Illinois Plat Act are
inapplicable to said conveyance because Seller owns
no property adjacent to the Real Property described
in said deed;
(xii) a fully completed Illinois Transfer Tax Declaration
for the deed of the Real Property duly executed on
behalf of Seller;
(xiii) a fully completed Xxxx County, Illinois Transfer Tax
Declaration for the deed of the Real Property duly
executed on behalf of Seller;
(xiv) stamp(s) and such other certificates or documents as
are issued by the Village of Franklin Park, Illinois
evidencing payment in full of the applicable transfer
tax and satisfaction of all prerequisite requirements
pertaining thereto imposed by said Village on the
conveyance of the Real Property;
(xv) copies certified by the respective Secretaries of the
Seller Parties of resolutions duly adopted by the
boards of directors of each of the Seller Parties and
by the sole shareholder of Seller authorizing and
approving the execution and delivery of this
Agreement, including the exhibits hereto, and the
transactions contemplated hereby;
(xvi) the Escrow Agreement and the Joint Escrow Instruction
Letter to the American National Bank and Trust
Company of Chicago attached as EXHIBIT I (the "Escrow
Agreement and Instructions"); and
(xvii) such other documents, instruments and certificates
necessary or appropriate in connection with the
Seller's sale and transfer of the Purchased Assets
and transfer and assignment of the Assumed
Liabilities.
(b) DELIVERIES BY THE BUYER. At the Closing, Buyer executed and
delivered or provided, as applicable, to the Seller Parties:
(i) the Purchase Price;
(ii) the Assignment and Assumption Agreement;
ASSET PURCHASE AGREEMENT 7 EXECUTION COPY
(iii) the Consulting Agreement;
(iv) any of the above documents and certifications related
to the Real Property to be executed and delivered by
Buyer;
(v) a fully completed Illinois Transfer Tax Declaration
for the deed of the Real Property duly executed on
behalf of Buyer;
(vi) a fully completed Xxxx County, Illinois Transfer Tax
Declaration for the deed of the Real Property duly
executed on behalf of Buyer;
(vii) copy certified by the Secretary of the Buyer of
resolutions duly adopted by the board of directors of
the Buyer authorizing and approving the execution and
delivery of this Agreement, including the exhibits
hereto, and the transactions contemplated hereby;
(viii) the Escrow Agreement and Instructions;
(ix) such other documents, instruments and certificates
necessary or appropriate in connection with the
Buyer's purchase of the Purchased Assets and
assumption of the Assumed Liabilities; and
(x) the Buyer Gap Undertaking Statement as promulgated by
the Title Insurer.
6. SELLER PARTIES' REPRESENTATIONS AND WARRANTIES. Each of the Seller
Parties, jointly and severally, represents and warrants to Buyer that
as of the Closing Date (except to the extent any representation or
warranty is made as of another date, which is in such case made as of
such other date):
6.1 ORGANIZATION AND STANDING. The Seller is a corporation duly
incorporated, validly existing, and in good standing under the laws of
the State of Illinois. Seller has all requisite power and authority to
own its properties and conduct the Business as it is now being
conducted. Seller is duly qualified and in good standing in every
jurisdiction in which it is required by the nature of its business or
the ownership or lease of its properties to so qualify, except where
the failure to so qualify does not or is not reasonably expected to
have a material adverse effect on the Seller or the Business. IHI is
the owner of all of the issued and outstanding capital stock of the
Seller.
6.2 AUTHORIZATION. Each of the Seller Parties has all requisite corporate
power and authority (a) to execute, deliver, and perform this Agreement
and all other agreements and instruments that are being delivered
herewith at the Closing under Section 5.3(a) (all such other agreements
and instruments, the "Related Agreements") to which each is a party and
(b) to consummate the transactions contemplated under this Agreement
and the Related Agreements. Each of the Seller Parties has taken all
necessary corporate action (including the approval of its board of
directors and, in the case of Seller, its sole shareholder), as the
case may be, to approve the execution, delivery, and performance of
this Agreement and the Related Agreements to be executed and delivered
by it and the consummation of the transactions contemplated in this
Agreement and in the Related Agreements. Each of the Seller Parties has
duly executed and delivered this Agreement. This Agreement and the
ASSET PURCHASE AGREEMENT 8 EXECUTION COPY
Related Agreements are the legal, valid, and binding obligations of
each of the Seller Parties that are a party to them, enforceable
against each of them in accordance with the Agreement and Related
Agreements' respective terms, except as such enforcement may be limited
by bankruptcy, insolvency, moratorium, or similar laws relating to the
enforcement of creditors' rights and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
6.3 EXISTING AGREEMENTS AND OTHER APPROVALS.
(a) Except as set forth on SCHEDULE 6.3(a), the execution,
delivery, and performance of this Agreement and the Related
Agreements and the consummation of the transactions
contemplated by them: (i) do not violate any provisions of law
applicable to either of the Seller Parties, the Business or
the Purchased Assets; (ii) do not conflict with, result in the
breach or termination of any provision of, or constitute a
default under (in each case whether with or without the giving
of notice or the lapse of time or both) the Articles of
Incorporation or Bylaws of either of the Seller Parties, or
any indenture, mortgage, lease, deed of trust, or other
instrument, contract, or agreement that is material to the
Business, or any order, judgment, arbitration award, or decree
to which either of the Seller Parties is a party or by which
it is bound (including, without limitation, the Purchased
Assets); and (iii) do not result in the creation of any lien
or encumbrance on any of the Purchased Assets.
(b) Except as set forth on SCHEDULE 6.3(b), no approval,
authority, or consent of, or filing by, either of the Seller
Parties with, or notification to, any federal, state, or local
court, authority, or governmental or regulatory body or agency
or any other corporation, partnership, individual, or other
entity is necessary (i) to authorize the execution and
delivery of this Agreement or any of the Related Agreements by
either of the Seller Parties, (ii) to authorize the
consummation of the transactions contemplated by this
Agreement or any of the Related Agreements by either of the
Seller Parties, or (iii) to continue Buyer's use and operation
of the Purchased Assets after the Closing Date.
6.4 NO SUBSIDIARIES. Seller has no subsidiaries and directly or indirectly
owns no interest or has any investment in any other corporation,
partnership, or other entity.
6.5 NO INSOLVENCY. No insolvency proceeding of any character, including,
without limitation, bankruptcy, receivership, reorganization,
composition, or arrangement with creditors, voluntary or involuntary,
affecting either of the Seller Parties or any of its assets or
properties is pending or, to Seller Parties' knowledge, threatened.
Seller Parties have not taken any action in contemplation of, or that
would constitute the basis for, the institution of any such insolvency
proceedings.
6.6 PERMITS AND LICENSES. SCHEDULE 6.6 lists all the permits certificates,
licenses, approvals, consents, and other authorizations or
qualifications that the Seller has and that are necessary to carry and
conduct the Business and to own, lease, use, and operate the Purchased
Assets at the places and in the manner in which the Business is
conducted, all of which, to the extent
ASSET PURCHASE AGREEMENT 9 EXECUTION COPY
transferable, shall be transferred or assigned to Buyer at the Closing,
without expense to Buyer.
6.7 FINANCIAL STATEMENTS. Attached as SCHEDULE 6.7 are copies of the
Seller's:
(a) unaudited balance sheet as of December 31, 1999 and related
statement of operations for the 12-month period then ended;
(b) unaudited balance sheet as of December 31, 2000 and related
statement of operations for the 12-month period then ended;
and
(c) unaudited balance sheet of Seller as of August 31, 2001 (the
"August 31 Balance Sheet") and related statement of operations
for the eight-month period then ended ((a)-(c) above,
collectively, the "Financial Statements").
The Financial Statements have been prepared in accordance with
generally accepted accounting principles ("GAAP"), subject to normal
recurring year-end adjustments and the absence of notes, fairly present
in all material respects Seller's financial position as of the dates
indicated and the results of its operations as of the dates indicated
and for the periods covered thereby. Seller's books and records have
been maintained on an accrual basis in accordance with GAAP in the
financial books and records of the Seller, and accurately reflect the
basis for the financial condition and the results of its operations
that are set forth in the Financial Statements.
6.8 INVENTORY. All items included in the Inventory listing on SCHEDULE 1.2
are of a quality usable and, with respect to finished goods, saleable
in the Ordinary Course of Business, except for obsolete items and items
of below-standard quality that have been written off, written down or
reserved against, as reflected on SCHEDULE 1.2. All of the Inventory
not written off has been valued at standard cost consistent with
Seller's past practices. Seller is not in possession of any consigned
inventory not owned by Seller or any finished goods to which title has
passed to the customer under the Seller's customary shipping and
fulfillment practices. All of the Inventory purchased after August 31,
2001 was purchased in the Ordinary Course of Business. All of the
Inventory is maintained at the location of the Real Property.
6.9 RECEIVABLES. All Receivables that are reflected on SCHEDULE 1.3
represent valid obligations arising from sales actually made or service
actually performed in the Ordinary Course of Business. All Receivables
reflected on SCHEDULE 1.3 are current and collectible within 120 days
after the date of invoice, net of the reserve shown on SCHEDULE 1.3.
6.10 NO UNDISCLOSED LIABILITIES. Except as disclosed in the August 31, 2001
Balance Sheet or as incurred in the Ordinary Course of Business
thereafter, Seller has no liabilities or obligations, whether accrued,
absolute, contingent, or otherwise, and, to the Seller Parties'
knowledge, there exists no fact or circumstance that could give rise to
any such liabilities or obligations in the future.
6.11 CONDUCT OF BUSINESS. Except as otherwise disclosed on attached SCHEDULE
6.11, since August 31, 2001, Seller has not:
ASSET PURCHASE AGREEMENT 10 EXECUTION COPY
(a) declared or paid any dividend or made any other payment from
capital or surplus or other distribution of any nature, or
directly or indirectly redeemed, purchased, or otherwise
acquired, recapitalized, or reclassified any of its capital
stock;
(b) altered or amended its Articles of Incorporation or Bylaws;
(c) entered into, materially amended, or terminated any contract,
license, lease, commitment, or permit, except in the Ordinary
Course of Business;
(d) experienced any labor disturbance;
(e) incurred or become subject to any obligation or liability
(absolute, accrued, contingent, or otherwise), except (i) in
the Ordinary Course of Business and (ii) in connection with
the performance of this Agreement;
(f) paid or satisfied any obligation or liability (absolute,
accrued, contingent, or otherwise) other than (i) liabilities
shown or reflected in the August 31 Balance Sheet, or (ii)
liabilities incurred since the date of the balance sheet, in
each case only in the Ordinary Course of Business and in
accordance with the express terms of such obligation or
liability;
(g) sold, transferred, or agreed to sell or transfer any asset,
property, or business; cancelled or agreed to cancel any debt
or claim; or waived any right, except in the Ordinary Course
of Business;
(h) disposed of or permitted to lapse any Intellectual Property;
(i) instituted or settled any litigation, action, or proceeding
before any court or governmental body relating to the
Purchased Assets or the Business;
(j) made any change in any method of accounting or any accounting
practice or suffered any deterioration in accounting controls;
(k) carried on or conducted the Business or entered into any other
transaction other than in the Ordinary Course of Business;
(l) reduced, on a daily basis, the cash allocation from IHI to
Seller so that it was less than an average of $12,500 per
business day; or
(m) agreed or committed to do any of the foregoing.
As used herein, "Ordinary Course of Business" means actions of the
Seller that are: (a) consistent with past practices taken in the course
of its usual day-to-day operations (including the collection of its
accounts receivable, payment of trade accounts and other payables, and
maintenance of insurance and inventory levels); (b) not required to be
authorized by resolution of the Seller's board of directors; and (c)
similar in nature and magnitude to actions customarily taken, without
authorization by the boards of directors in
ASSET PURCHASE AGREEMENT 11 EXECUTION COPY
the ordinary course of usual day-to-day operations of other companies
of similar size in the same line of business.
6.12 NO ADVERSE CHANGES. Except as otherwise disclosed in SCHEDULE 6.12,
since December 31, 2000, there has been no occurrence, condition, or
development that has adversely affected, or is likely to adversely
affect, Seller, its prospects, its condition (financial or otherwise),
its affairs, its operations, the Business, or the Purchased Assets.
6.13 EMPLOYEES. SCHEDULE 6.13 lists the name, position, date of employment,
salary, hourly wage rate, commission or bonus and other benefits
(excluding those under any Employee Plan (as defined below)), for each
employee of Seller (the "Employees"). Except as described on SCHEDULE
6.13, Seller is not a party to or bound by any agreement with any
employee. There is not now, nor has there been at any time during the
past five years, any strike, lockout, grievance, other labor dispute,
or trouble of any nature pending or, to Seller Parties' knowledge,
threatened against Seller. All wages, vacation pay, and fringe benefits
due to employees of the Business have, as of the Closing Date, been
paid or accrued consistent with past practices of Seller, except where
the failure to so pay or accrue does not or is not reasonably expected
to have a material adverse effect on the Seller or the Business.
6.14 EMPLOYEE BENEFIT PLANS.
(a) SCHEDULE 6.14 lists or discloses each employee benefit plan,
program or arrangement of whatever nature, whether or not
subject to any provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), bonus, stock, or
other employee pay practice, consulting, retainer, employment,
retirement, welfare, fringe benefit, insurance, incentive,
vacation, holiday, sickness, leave of absence, or any other
plan, policy, program, agreement or other arrangement that
either Seller Party sponsors, maintains or contributes to with
respect to either Seller Party's current or former employees
(individually and collectively, "Employee Plan"). No Employee
Plan shall by its terms or applicable law, become binding upon
or an obligation, liability or responsibility of Buyer in any
way, financial or otherwise. Neither Seller Party has engaged
in any action or omission which may result in Buyer being a
party to, or bound by, any Employee Plan. Except for the
agreement between Seller and Xxxxxxx X. Xxxxxx that is
disclosed on Schedule 6.15 hereto, no Employee Plan provides
for payment of termination, change of control or retiree
benefits in any manner such that Buyer would become liable to
provide such benefits.
(b) With respect to any Employee Plan that is subject to the
continuation requirements of Sections 601-608 of ERISA and
Code Section 4980B or the continuation requirements of any
applicable state or local law, each Seller Party's sponsoring,
maintaining or contributing to such Employee Plan has complied
with all such applicable laws and regulatory requirements with
respect to such Seller Party's current or former employees.
(c) No Employee Plan is either (i) a "multiemployer plan" (as
defined in Section 3(37) of ERISA) or (ii) a defined benefit
pension plan subject to Title IV of ERISA.
ASSET PURCHASE AGREEMENT 12 EXECUTION COPY
(d) During the five years preceding the Closing Date, (i) no
under-funded pension plan subject to Section 412 of the Code
has been transferred out of the Seller or IHI and (ii) neither
Seller Party has participated in or contributed to, nor had an
obligation to contribute to, any multiemployer plan (as
defined in ERISA Section 3(37)) and neither Seller Party has
any withdrawal liability with respect to any multiemployer
plan.
(e) Each Employee Plan which the employees of either Seller Party
participate in that meets or purports to meet the requirements
of Code Section 401(a) has received a favorable determination
letter from the IRS that it is qualified under Section 401(a)
and that its related trust is exempt from federal income tax
under Section 501(a) and each such plan complies in form and
in operation with the requirements of the Code and meets the
requirements of a "qualified plan" under Code Section 401(a).
To each Seller Party's knowledge, no event has occurred or
circumstance exists that will or could give use to
disqualification or loss of tax-exempt status of any such plan
or trust.
6.15 CONTRACTS. Except for (i) the contracts and commitments listed on
SCHEDULE 6.15 ("Contracts and Commitments"), (ii) contracts and
commitments specifying payment by the Seller or to the Seller of
$25,000 or less over the term of that contract or commitment, (iii) the
Outstanding Customer Purchase Orders, or (iv) as otherwise listed on
SCHEDULE 6.15, the Seller is not a party to nor bound by any agreement
or commitment that affects the Business, the Purchased Assets, or the
Assumed Liabilities. All Contracts and Commitments are valid and
binding obligations of the Seller in accordance with their respective
terms. No material default or alleged material default exists on the
part of the Seller or, to the Seller Parties' knowledge, on the part of
any other party, under any of the Contracts and Commitments. True and
complete copies of all Contracts and Commitments that are Assumed
Contracts have been delivered to Buyer.
6.16 TITLE TO PURCHASED ASSETS; LIENS.
(a) Seller is the owner of and has good title to all of the
Purchased Assets other than the Real Property, free and clear
of any and all liens, claims, demands, charges, options,
equity interests, leases, pledges and security interests
("Liens"), except as described on SCHEDULE 6.16 and except for
liens for personal property taxes that are not yet due and
payable.
(b) SCHEDULE 6.16 contains a correct legal description, street
address and tax parcel identification number of the Real
Property.
(c) Seller owns good and marketable fee simple title to the Real
Property, free and clear of any Encumbrances, other than the
lien for general real estate taxes which are not yet due and
payable, public utility easements and covenants, conditions
and restrictions of record which will not materially and
adversely affect Buyer's use and enjoyment of the Real
Property (collectively, the "Permitted Encumbrances"). As used
herein the term "Encumbrances" means any Lien, charge, claim,
mortgage, servitude, easement, right of way, community or
other marital property interest,
ASSET PURCHASE AGREEMENT 13 EXECUTION COPY
covenant, equitable interest, license, lease or other
possessory interest, option, pledge, security interest, deed
restriction, preference, priority, right of first refusal or
similar restriction.
(d) Except for the roof of the building on the Premises (the
"Building Roof"), and the deficiencies identified in the
Inspection Report for the Premises issued by the Village of
Franklin Park, Illinois, dated October 16, 2001, a copy of
which is attached hereto as EXHIBIT K (the "Identified
Deficiencies"), such building and all structures, furniture,
fixtures, machinery and equipment included in the Purchased
Assets are in good operating condition and repair, given their
respective ages and prior usage, ordinary wear and tear
excepted. Except for the Building Roof and the Identified
Deficiencies, none of such building or any structures,
furniture, fixtures, machinery and equipment needs maintenance
or repairs, except for ordinary, routine maintenance and
repairs. Except for the Building Roof and the Identified
Deficiencies, neither Seller Party is aware of (i) any defects
in the structural components of such building (including the
foundation and exterior walls) and building systems (including
the heating, ventilating and air conditioning, electrical,
mechanical and plumbing systems) included in the Purchased
Assets, taking into account their respective ages and prior
usage, or (ii) any present need for material repairs to the
structural components of such building or the building
systems, except for ordinary, routine maintenance and repair.
(e) SCHEDULE 6.16 lists or describes all property used in the
conduct of the Business and/or situated on the Premises that
is owned by or an interest in which is claimed by any other
person (whether a customer, supplier, or other person) and for
which Seller is responsible, together with copies of all
related agreements.
6.17 TAXES.
(a) "Tax" or "Taxes" shall mean all of the Seller's federal,
state, county, local, and other taxes relating to all periods
before the Closing Date (including, without limitation, income
taxes; premium taxes; single-business taxes; excise taxes;
sales taxes; use taxes; value-added taxes; gross receipts
taxes; franchise taxes; ad valorem taxes; real estate taxes;
severance taxes; capital levy taxes; stamp taxes; employment,
unemployment, and payroll-related taxes; withholding taxes;
and governmental changes and assessments; including without
limitation all transfer taxes), and include interest,
additions to tax, and penalties.
(b) Seller has filed on a timely basis all Tax returns it is
required to file under federal, state, or local law, and has
paid or established an adequate reserve with respect to all
Taxes for the periods covered by such returns. No agreements
have been made by or on behalf of Seller for any waiver or for
the extension of any statute of limitations governing the time
of assessment or collection of any Taxes. Neither of the
Seller Parties nor their respective officers have received
notice of any pending or threatened audit by the IRS or any
state or local agency related to Seller's Tax returns or Tax
liability for any period, and no claim for assessment or
collection of Taxes has been asserted against Seller. There
are no federal, state, or local tax liens outstanding
ASSET PURCHASE AGREEMENT 14 EXECUTION COPY
against any of Seller's assets (including, without limitation,
the Purchased Assets) or the Business.
(c) The sale by Seller of the Purchased Assets and the Buyer's
acquisition of such assets will not result in the imposition
of or liability of the Buyer for any sales or use taxes except
in connection with the transfer of any motor vehicles that are
part of the Purchased Assets.
6.18 LITIGATION. There are no claims, disputes, actions, suits, proceedings,
or investigations pending or, to Seller Parties' knowledge, threatened,
against or affecting the Seller, the Business, or the Purchased Assets.
6.19 PRODUCT LIABILITY. No known defect or deficiency exists in any of the
products manufactured or sold by the Seller, or in any finished
Inventory of the Seller, that could give rise to any liabilities or
claims for product liability or similar liabilities or claims.
6.20 ENVIRONMENTAL MATTERS.
(a) The following terms used in this Section 6.20 have the
meanings set forth below:
(i) Environmental Laws means all federal, state, county,
municipal and local, foreign, and other statutes,
laws, regulations, and ordinances that relate to
human health or Environment, all as may be amended
from time to time.
(ii) Hazardous Substance(s) means any flammable or
combustible substance, explosive, radioactive
material, hazardous waste, toxic substance,
pollutant, contaminant, or any waste or other
substance identified in or regulated by any of the
Environmental Laws, including but not limited to,
asbestos or asbestos-containing materials;
polychlorinated biphenyls, urea formaldehyde,
chemicals and chemical wastes, petroleum products and
by-products (including all derivates thereof or
synthetic substitutes therefor), and radon.
(iii) Release means any release, spill, emissions, leaking,
pumping, pouring, dumping, emptying, injection,
deposit, disposal, discharge, dispersal, leaching or
migration on or into the Environment or into or out
of any property.
(iv) Environment means soil, land surface or subsurface
strata, surface water (including navigable water),
ground waters, drinking water supply, stream
sediments, ambient air (including indoor air), plant
life, animal life, and any other similar medium or
natural resource.
(b) Except as described in SCHEDULE 6.20: (i) Seller is now and
has at all times been in full compliance with all
Environmental Laws; (ii) to Seller Parties' knowledge, there
are no Hazardous Substances or other conditions in, on or
under the Real Property that may support a claim or cause of
action against Seller Parties or Buyer under any Environmental
Laws; (iii) there are not, and never have been, any
underground storage tanks located in, on or under the Real
Property; (iv) neither the Seller Parties nor their directors,
officers, employees, or agents have generated or transported
any Hazardous Substances at any time that have been
transported to or disposed of in any
ASSET PURCHASE AGREEMENT 15 EXECUTION COPY
landfill or other facility where the transportation or
disposal could create liability to any unit of government or
any third party; (v) since December 13, 1996, there has been
no Release of any Hazardous Substances at, in, on or under the
Real Property; (vi) to Seller Parties' knowledge, prior to
December 16, 1996, there has been no Release or threatened
Release of any Hazardous Substance at, in, on or under the
Real Property; and (vii) there are no Hazardous Substances
used, generated, or stored on or at the Real Property.
(c) Except as described in SCHEDULE 6.20, no activity has been
undertaken on the Real Property by Seller, or, to Seller
Parties' knowledge, by any other party, that would cause or
contribute to (i) the Real Property becoming a treatment,
storage or disposal facility within the meaning of any
Environmental Laws; (ii) a Release or threatened Release of
any Hazardous Substances; or (iii) the discharge of pollutants
or effluents into the Environment or the dredging or filling
of any waters, where such action would require a permit under
any Environmental Laws. Seller Parties have obtained all
permits required by all applicable Environmental Laws, which
are listed on SCHEDULE 6.20, and all such permits are in full
force and effect.
(d) Except as described in SCHEDULE 6.20, no executive officer of
either Seller Party have has received any verbal notification,
and neither Seller Party has received any written citation,
directive, inquiry, notice, order, summons, warning or other
written communication that relates to such party being liable
or potentially liable (including being a potentially
responsible party) under, or being in violation or potential
violation of, any Environmental Laws.
(e) Seller is in full compliance with the provisions applicable to
Seller contained in the No Further Remediation Letter (the
"NFR") issued by the Illinois Environmental Protection Agency
for the Real Property and described more fully in EXHIBIT J.
The NFR has been properly and timely recorded with the
Recorder of Deeds of Xxxx County, Illinois. Fees, if any,
applicable to Seller Parties with respect to the NFR pursuant
to the Illinois Environmental Protection Act and regulations
promulgated thereunder, as to which invoices have been
received by Seller Parties, have been paid. To Seller Parties'
knowledge, the NFR is fully valid and in force. To Seller
Parties' knowledge, the NFR is not at risk of being voided by
the Illinois Environmental Protection Agency.
(f) Seller Parties have disclosed and delivered to Buyer true and
complete copies and results of all completed environmental
reports, investigations, studies, analyses, tests or
monitoring that Seller Parties have in their possession or
control with respect to the Real Property.
6.21 NO BROKERS. The Seller Parties have not engaged, and are not
responsible for any payment to, any finder, broker, or consultant in
connection with the transactions contemplated by this Agreement, except
as set forth on SCHEDULE 6.21.
6.22 INTELLECTUAL PROPERTY. SCHEDULE 6.22 lists all patents, processes,
trademarks, trade names, copyrights, service marks, logos, trade
secrets and all applications and registrations therefor
ASSET PURCHASE AGREEMENT 16 EXECUTION COPY
that are used in the Business, and licenses thereof under which the
Seller has any right to the use or benefit of, or other rights with
respect to, any of the foregoing ("Intellectual Property"). Except as
set forth in SCHEDULE 6.22, the Seller is the sole and exclusive owner
of the Intellectual Property, free and clear of all Encumbrances. To
the Seller Parties' knowledge, none of the Seller's Intellectual
Property infringes on any other person's intellectual property, and, to
the Seller Parties' knowledge, no activity of any other person
infringes on any of the Intellectual Property. To the Seller Parties'
knowledge, the Seller has been and is now conducting the Business in a
manner that has not been and is not now in violation of any other
person's intellectual property, and Seller does not require a license
or other proprietary right to so operate the Business.
6.23 COMPLIANCE WITH LAW. Seller is not, and at all times since January 1,
1997, has not been, in violation of any provision of any law, decree,
order, regulation, license, permit, consent, approval, authorization or
qualification, including, without limitation, those relating to health,
the environment or Hazardous Substances, and neither of the Seller
Parties has received notice of any alleged violation by Seller of such
law, decree, order, regulation, license, permit, consent, approval,
authorization or qualification.
6.24 INSURANCE. SCHEDULE 6.24 contains a list and brief description of (a)
each insurance policy in effect on the date hereof issued to either or
both of the Seller Parties as a "named insured" or otherwise providing
insurance to either or both of the Seller Parties as an insured party
or additional insured party, or on any other basis, relating to the
Purchased Assets or the Business (b) any self-insurance program,
retrospective premium program or captive insurance program in effect on
the date hereof in which either or both of the Seller Parties has
participated relating to Purchased Assets or the Business.
7. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants
to each of the Seller Parties that as of the Closing Date (except to
the extent any representation or warranty is made as of another date,
which is in such case made as of such other date):
7.1 ORGANIZATION AND STANDING. Buyer is a corporation validly existing
under the laws of the State of Illinois, and Buyer has all the
requisite corporate power and authority to own its properties and to
conduct its business as it is now being conducted.
7.2 AUTHORIZATION. Buyer has taken all necessary action (a) to duly approve
the execution, delivery, and performance of this Agreement and (b) to
consummate any related transactions. Buyer has duly executed and
delivered this Agreement. This Agreement is the legal, valid, and
binding obligation of Buyer, enforceable against Buyer in accordance
with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, moratorium, or similar laws relating to the
enforcement of creditor's rights and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
7.3 EXISTING AGREEMENTS AND GOVERNMENTAL APPROVALS.
(a) The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated thereby: (i)
do not violate any provisions of the law applicable to Buyer;
(ii) do not conflict with, result in the breach or termination
of
ASSET PURCHASE AGREEMENT 17 EXECUTION COPY
any provision of, or constitute a default under (in each case
whether with or without the giving of notice or the lapse of
time, or both) Buyer's Articles of Incorporation, or any
indenture, mortgage, lease, deed of trust, or other
instrument, contract, or agreement or any order, judgment,
arbitration award, or decree to which Buyer is a party or by
which it or any of its assets and properties are bound; and
(iii) do not result in the creation of any Lien or encumbrance
on any of the Buyer's properties, assets, or business.
(b) No approval, authority, or consent of, or filing by Buyer
with, or notification to, any federal, state, or local court,
authority, or governmental or regulatory body or agency or any
other corporation, partnership, individual, or other entity is
necessary (i) to authorize Buyer's execution and delivery of
this Agreement or (ii) to authorize Buyer's consummation of
the transactions contemplated by this Agreement.
7.4 NO BROKERS. The Buyer has not engaged, and is not responsible for any
payment to, any finder, broker, or consultant in connection with the
transactions contemplated by this Agreement.
8. POST-CLOSING COVENANTS.
8.1 POST-CLOSING RECEIPTS. From and after the Closing Date, the Seller
Parties will promptly notify and transfer to Buyer any payments or
other receipts they receive with respect to any of the Purchased
Assets. Pending any such transfer, the Seller Parties will segregate
any such payments from its other assets and will clearly xxxx or
designate them as the property of Buyer.
8.2 SELLER NAME. From and after the Closing Date, Buyer shall have the
right to use in or in connection with the conduct of any business
(whether carried on by it directly or through any related corporation)
the name "American Rivet Company" and any other name used by the Seller
(collectively, the "Name") or any substantially similar variation of
the Name. The Seller Parties agree that they will not use either
directly or indirectly the Name, either alone or in combination with
one or more other words, in or in connection with any business,
activities, or operations that either of the Seller Parties or any
other subsidiaries of IHI or the Seller directly or indirectly carries
on or conducts.
8.3 FURTHER ASSURANCES. From time to time after the Closing Date, each
party hereto will, at any other party's request, execute, acknowledge
and deliver to such requesting party such other instruments and take
such other actions and deliver such other documents as may be
reasonably required to carry out the intent of this Agreement and the
Related Agreements.
8.4 BOOKS AND RECORDS. Insofar as the Seller determines that any books and
records may be needed or useful in connection with federal, state or
local regulatory or tax matters, resolution of third party disputes or
contract compliance issues, or other bona fide business purposes, for a
period of seven years after the Closing Date, Buyer will use its
reasonable commercial efforts to preserve and make available to the
Seller, at the location of such books and records in the Buyer's
organization, access to and the right to copy such of the books and
records as such Buyer may then have in its possession or to which it
may have access upon written request of the Seller during normal
business hours. The Buyer agrees to make such
ASSET PURCHASE AGREEMENT 18 EXECUTION COPY
of their employees and of the books and records as the Seller may
reasonably request, available at the Buyer's cost, to assist in the
preparation by Seller of financial reports and tax returns for the
Seller's fiscal year ending in 2001.
8.5 WAIVER. The Buyer hereby waives, releases, relinquishes and acquits
each of IHI, T-3 Energy Services, Inc., First Reserve Fund VIII, L.P.
and Comerica, as agent and individually, Hibernia National Bank and
National Bank of Canada, and their directors, officers, stockholders,
agents and successors, from and against all claims, counterclaims,
demands, suits, rights, actions and causes of action of any nature
whatsoever, as a result of or in connection with the sale by IHI or the
EPG Division Members (other than Seller) of the assets or capital stock
of such EPG Group Division Members to persons other than the Buyer.
8.6 COLLECTION OF RECEIVABLES. Buyer shall notify the Seller in writing
regarding any receivables set forth on SCHEDULE 6.9 that are not
collected within 120 days after the invoice dates thereof (the
"Post-Invoice Collection Period"), specifying those receivables not
collected within the Post-Invoice Collection Period. Seller shall then
have a period of 30 days after the date of such written notice to
collect such receivables, which shall be deemed "Uncollected
Receivables" if not collected during such 30-day period.
8.7 WARRANTY AND RETURNS.
(a) After the Closing, if any customer of Seller is entitled by
law or contract to, and does, return any item sold by Seller
prior to Closing, Buyer shall take such returned item and
credit the account of such customer as follows: (i) if such
item is not saleable within 90 days of its return, for the
full amount of the purchase price; and (ii) otherwise, zero
(in either case, the "Return Amount"). For all such returns,
the Return Amount shall be paid to Buyer by Seller.
(b) After the Closing, if any customer of Seller is entitled by
law or contract to, and does, seek warranty work on any item
sold by Seller prior to Closing, Buyer agrees with Seller to
provide such warranty work on such item for Seller's account.
Seller shall pay Buyer for such work an amount equal to the
actual cost of such work; provided (i) that if the labor for
such warranty work is applied in the Ordinary Course of
Business and does not give rise to incremental labor cost to
Buyer, there shall be no charge for such labor, and (ii) that
Buyer shall not charge Seller for charges by a subcontractor
on account of labor unless the use of a subcontractor is
consistent with Seller's customary business practice or course
of dealing prior to the Closing.
8.8 EMPLOYEE PAYABLES. After the Closing Date, Seller shall pay, perform,
satisfy and discharge, as and when due and payable, the accrued
payables or expenses that pertain to the Employees that are not Assumed
Liabilities, including without limitation, the credit union payable,
medical savings or child support withheld, accrued payroll expense, IHI
401(k) Plan payable (employer match), employee life insurance payable,
and employee/employer medical expenses, all as reflected on the
financial records of the Seller on and as of the Closing Date.
ASSET PURCHASE AGREEMENT 19 EXECUTION COPY
9. INDEMNIFICATION.
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties, covenants and obligations in this Agreement, the Schedules,
the updates, amendments or changes to the Schedules, and any other
certificate or document delivered pursuant to this Agreement will
survive the Closing, and the consummation of the contemplated
transactions, subject to the limitations set forth in this Section 9.
9.2 INDEMNIFICATION BY THE SELLER PARTIES. The Seller Parties, jointly and
severally, shall defend, indemnify, and hold harmless Buyer and its
directors, officers, shareholders, agents and attorneys, successors,
and assigns (the "Buyer Indemnitees") from and against any and all
costs, losses, claims, suits, actions, proceedings, demands,
assessments, diminution in value, liabilities, fines, penalties,
damages and expenses (including reasonable legal fees) ("Damages") in
connection with or resulting from:
(a) any of the Excluded Liabilities and any other debts,
liabilities, and obligations of Seller, whether accrued,
absolute, contingent, known, unknown, or otherwise, but
excluding any of the Assumed Liabilities;
(b) any inaccuracy in any representation or breach of any warranty
of Seller Parties contained in this Agreement or any Related
Agreement; and
(c) any failure by Seller Parties to perform or observe in full,
or to have performed or observed in full, any covenant,
agreement, or condition to be performed or observed by the
Seller Parties under this Agreement or any Related Agreement.
9.3 INDEMNIFICATION BY THE BUYER. The Buyer shall defend, indemnify and
hold harmless the Seller Parties and their directors, officers,
shareholders, agents and attorneys, successors and assigns (the "Seller
Indemnitees") from and against any Damages in connection with or
resulting from:
(a) any of the Assumed Liabilities;
(b) any inaccuracy in any representation or breach of any warranty
of Buyer contained in this Agreement or any Related Agreement;
(c) any failure by Buyer to perform or observe in full, or to have
performed or observed in full, any covenant, agreement, or
condition to be performed or observed by the Buyer under this
Agreement or any Related Agreement;
(d) any liability of Seller under the Worker Adjustment and
Retraining Notification Act that results from the sale of the
Purchased Assets to Buyer; and
(e) any liability of Seller arising after the Closing Date as a
result of Buyer not possessing on and after the Closing Date a
Federally Enforceable State Operation Permit/NESHAP Source, as
more fully described on Schedule 6.20 under the heading
"Disclosures Relating to Section 6.20(c)(ii)."
ASSET PURCHASE AGREEMENT 20 EXECUTION COPY
9.4 PROCEDURE FOR INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) Any party claiming indemnification under this Section 9 is
referred to in this Agreement as an "Indemnified Person" and
any party against whom such claims are asserted under this
Section 9 is referred to in this Agreement as an "Indemnifying
Person."
(b) Within 15 days after receipt of notice of commencement of any
action by any third party evidenced by service of process or
other legal pleading, or with reasonable promptness after the
assertion in writing of any claim by a third party, the
Indemnified Person shall give the Indemnifying Person written
notice thereof, together with a copy of such claim, process or
other legal pleading. The failure to so notify the
Indemnifying Person within the above time frame will not
relieve the Indemnifying Person of any liability it may have
to the Indemnified Person, except to the extent the
Indemnifying Person demonstrates that the defense of such
action is unduly prejudiced by the Indemnified Person's
failure to give such notice, or except if such notice is not
delivered before the time specified in Section 9.1. The
Indemnifying Person shall have the right to undertake and
control the defense, settlement, compromise or other
disposition thereof at its own expense and through a legal
representative of its own choosing. The Indemnified Person and
its counsel shall have the right to be present at the
negotiation, defense and settlement of such action or claim,
and any settlement or compromise of any such action or claim
shall be subject to the approval of the Indemnified Person,
which approval shall not be unreasonably withheld.
(c) If the Indemnifying Person, by the 30th day after receipt of
notice of any such claim (or, if earlier, by the 10th day
immediately preceding the day on which an answer or other
pleading must be served in order to prevent judgment by
default in favor of the person asserting such claim), has not
notified the Indemnified Person of its election to defend
against such claim, the Indemnified Person shall have the
right to undertake the defense, compromise or settlement of
such claim through counsel of its choice on behalf of and for
the account and risk of the Indemnifying Person, at the cost
and expense of the Indemnifying Person. In such event, the
Indemnifying Party and its counsel shall have the right to be
present at the negotiation, defense and settlement of such
action or claim, and any settlement or compromise of any such
action or claim shall be subject to the approval of the
Indemnifying Party, which approval shall not be unreasonably
withheld.
9.5 PROCEDURE FOR INDEMNIFICATION; OTHER THAN THIRD-PARTY CLAIMS. Any claim
for indemnification for a matter not involving a third-party claim
shall be asserted by written notice, which specifies in reasonable
detail the factual basis of such claim, and delivered to the party or
parties from which indemnification is sought.
9.6 TIME LIMITATIONS.
(a) If the Closing occurs, the Seller Parties will have no
liability for breach of a representation or warranty, other
than those in Section 6.1, 6.2, 6.14, 6.17, 6.20 or
ASSET PURCHASE AGREEMENT 21 EXECUTION COPY
6.21, unless on or before the second anniversary of the
Closing Date Buyer notifies the Seller Parties of a claim
specifying the factual basis of that claim in reasonable
detail to the extent then known by Buyer. A claim for
indemnification with respect to Section 6.1, 6.2, 6.14, 6.17,
6.20 or 6.21, a claim for indemnification based upon any
covenant or obligation to be performed or complied with after
the Closing Date or a claim for indemnification under Section
9.2(a) may be made at any time.
(b) If the Closing occurs, Buyer will have no liability for breach
of a representation or warranty, other than those in Section
7.1, 7.2 or 7.4, unless on or before the second anniversary of
the Closing Date a Seller Party notifies Buyer of a claim
specifying the factual basis of that claim in reasonable
detail to the extent then known by the Seller Parties. A claim
with respect to Section 7.1, 7.2 or 7.4, a claim for
indemnification based upon any covenant or obligation to be
performed or complied with after the Closing Date or a claim
for indemnification under Section 9.3(a), (d) or (e) may be
made at any time.
9.7 LIMITATIONS ON LIABILITY.
(a) No claim for indemnification shall be made hereunder unless
asserted by a written notice given to the Indemnifying Party
with the time limitations set forth in Section 9.6.
(b) The Indemnified Person shall act in good faith and in a
commercially reasonable manner to mitigate any Damages for
which it may seek indemnification under this Section 9.
(c) An indemnity payment for Damages otherwise due and payable
under this Section 9 shall be decreased to the extent of any
(i) net reduction of tax liability the Indemnified Party or
any affiliated party thereof actually realizes as a result of
such indemnifiable loss, and (ii) insurance proceeds the
Indemnified Party or any affiliated party thereof actually
collects in connection with the indemnifiable loss.
(d) No party shall be liable under Sections 9.2(b) or 9.3(b)
except to the extent the aggregate amount of such liability
(for all such claims) exceeds 1% of the Purchase Price and
then only to the extent of such excess. Any liability under
Sections 9.2(b) or 9.3(b) shall be limited in the aggregate to
a maximum amount equal to the Purchase Price.
(e) Notwithstanding Section 6.9 and Section 9.2, Buyer shall make
claims for indemnification only for Uncollected Receivables,
and only upon the Buyer's concurrent conveyance to Seller of
such Uncollected Receivable, without recourse to Buyer and
without representation or warranty.
(f) Seller Parties and Buyer have reviewed the Inspection Report
attached as EXHIBIT K, and have agreed to, and specified by
the initials "SP" or "B" in the left hand column on the copy
of the Inspection Report, the specific Identified Deficiencies
to be corrected by Seller Parties or by Buyer, respectively.
In accordance with the terms
ASSET PURCHASE AGREEMENT 22 EXECUTION COPY
and conditions of the Escrow Agreement and Instructions,
Seller Parties shall correct all of the Identified
Deficiencies specified with the initials "SP" (the "SP
Deficiencies"). Notwithstanding Section 6.16(d) and Section
9.2, Buyer shall make no claims for indemnification with
respect to the Identified Deficiencies, and Buyer's exclusive
post-Closing remedy with respect to the Identified
Deficiencies (including the SP Deficiencies) shall be as
provided in the Escrow Agreement and Instructions.
(g) Nothing in Section 5 as to Seller's deliveries of the Title
Commitment or the policy issued pursuant thereto will be
deemed to waive Buyer's right to claim a breach of the
representations and warranties set forth in Section 6.16(c) or
to claim a right to indemnification as provided in Section 9.2
if Buyer suffers any Damages as a result of a
misrepresentation with respect to the condition of title to
the Real Property, provided that, notwithstanding Section 9.2,
recovery shall first be sought from the owner's policy of
title insurance.
9.8 REMEDIES. The remedies of the Buyer and the Buyer Indemnitees set forth
in this Section 9 shall be the exclusive post-Closing remedies
available to them with respect to the actual or alleged breach by any
of the Seller Parties of any provision of this Agreement or the Related
Agreements (other than the Nonsolicitation Agreement and the Consulting
Agreement). The remedies of the Seller Parties and the Seller
Indemnities set forth in this Section 9 shall be exclusive post-Closing
remedies available to them with respect to the actual or alleged breach
by the Buyer or any provision of this Agreement or the Related
Agreements (other than the Nonsolicitation Agreement and the Consulting
Agreement).
10. EXPENSES. Each of the parties shall pay all of the costs that it incurs
incident to the preparation, execution, and delivery of this Agreement
and the performance of any related obligations, whether or not the
transactions contemplated by this Agreement shall be consummated.
11. MISCELLANEOUS PROVISIONS.
11.1 NOTICES. All notices, demands, and requests required or permitted to be
given under the provisions of this Agreement shall be in writing and
shall be deemed given (a) when personally delivered or sent by
facsimile transmission to the party to be given the notice or other
communication or (b) on the business day following the day such notice
or other communication is sent by overnight courier to the following:
IF TO SELLER PARTIES:
Xxxxxx X. Xxxx
Industrial Holdings, Inc.
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Xxxxxxx Xxxxxx L.L.P.
1100 Louisiana, Suite 4200
ASSET PURCHASE AGREEMENT 23 EXECUTION COPY
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. XxXxxx
Telephone: 000-000-0000
Facsimile: 713-752-4221
IF TO BUYER:
Xxxxxxx X. X'Xxxxxx
ARC Acquisition Corp.
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 773-489-6353
With a copy to:
Xxxxx & XxXxxxxx
One Prudential Plaza
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
or to such other address or facsimile number that the parties may
designate in writing.
11.2 ASSIGNMENT. Except as set forth herein, neither Seller Parties nor
Buyer shall assign this Agreement, or any interest in it, without the
prior written consent of the other.
11.3 PARTIES IN INTEREST. This Agreement shall inure to the benefit of, and
be binding on, the named parties and their respective successors and
permitted assigns, but not any other person.
11.4 CHOICE OF LAW. This Agreement shall be governed, construed, and
enforced in accordance with the laws of the State of Illinois.
11.5 COUNTERPARTS. This Agreement may be signed in any number of
counterparts with the same effect as if the signature on each
counterpart were on the same instrument.
11.6 ENTIRE AGREEMENT. This Agreement and all related documents, schedules,
exhibits, or certificates represent the entire understanding and
agreement between the parties with respect to the subject matter and
supersede all prior agreements or negotiations between the parties.
This Agreement may be amended, supplemented, or changed only by an
agreement in writing that makes specific reference to this Agreement or
the agreement delivered pursuant to it and that is signed by the party
against whom enforcement of any such amendment, supplement, or
modification is sought.
ASSET PURCHASE AGREEMENT 24 EXECUTION COPY
11.7 ARBITRATION.
(a) Subject to the provisions of Section 9.8, any dispute,
controversy, or claim arising out of or relating to this
Agreement or relating to the breach, termination, or
invalidity of this Agreement, whether arising in contract,
tort, or otherwise, shall at the request of any party be
resolved in binding arbitration. Any arbitration shall proceed
in accordance with Title 9 of the United States Code, as it
may be amended or recodified from time to time ("Title 9"),
and the current Commercial Arbitration Rules (the "Arbitration
Rules") of the American Arbitration Association ("AAA") to the
extent that Title 9 and the Arbitration Rules do not conflict
with any provision of this Section 11.7.
(b) No provision of or the exercise of any rights under this
Section 11.7 shall limit the right of any party to seek and
obtain provisional or ancillary remedies (such as injunctive
relief, attachment, or the appointment of a receiver) from any
court having jurisdiction before, during, or after the
pendency of an arbitration proceeding under this Section. The
institution and maintenance of any such action or proceeding
shall not constitute a waiver of the right of any party
(including the party taking the action or instituting the
proceeding) to submit a dispute, controversy, or claim to
arbitration under this Section.
(c) Any award, order, or judgment made pursuant to arbitration
shall be deemed final and may be entered in any court having
jurisdiction over the enforcement of the award, order, or
judgment. Each party agrees to submit to the jurisdiction of
any court for purposes of the enforcement of the award, order,
or judgment.
(d) The arbitration shall be held before one arbitrator
knowledgeable in the general subject matter of the dispute,
controversy, or claim and selected by AAA in accordance with
the Arbitration Rules, except that any arbitration in which
the disputed, controverted, or claimed amount (as reflected on
the demand for arbitration, as the same may be amended)
exceeds $500,000.00 shall be held before three arbitrators,
one arbitrator being selected by Buyer, one by the Seller
Parties, and the third by the other two from a panel of
persons identified by AAA who are knowledgeable in the general
subject matter of the dispute, controversy, or claim.
(e) The arbitration shall be held at the office of AAA located in
Xxxx County, Illinois (as the same may be from time to time
relocated), or at another place the parties agree on.
(f) In any arbitration proceeding under this Section 11.7, subject
to the award of the arbitrator(s), each party shall pay all
its own expenses, an equal share of the fees and expenses of
the arbitrator, and, if applicable, the fees and expenses of
its own appointed arbitrator. The arbitrator(s) shall have the
power to award recovery of costs and fees (including
reasonable attorney fees, administrative and AAA fees, and
arbitrators' fees) among the parties as the arbitrators
determine to be equitable under the circumstances.
ASSET PURCHASE AGREEMENT 25 EXECUTION COPY
(g) The interpretation and construction of this Section 11.7,
including, but not limited to, its validity and
enforceability, shall be governed by Title 9 of the U.S. Code,
notwithstanding the choice of law set forth in Section 11.4 of
this Agreement.
11.8 PUBLIC ANNOUNCEMENTS. The parties agree to advise and confer with each
other prior to the issuance of any public reports, statements or press
releases pertaining to this Agreement and the transactions contemplated
hereby. Each party will use its best efforts to maintain in strict
confidence the existence and terms of this Agreement and the
transactions contemplated hereby. Unless otherwise required by law or
as set forth above, no party shall make any public announcement or
disclosure concerning this Agreement, except as mutually agreed. The
financial terms of the Agreement are to be kept confidential, except to
the extent that the disclosure is required under law. Nothing in the
foregoing is intended to prevent IHI from making any filings required
with the Securities and Exchange Commission.
11.9 FACSIMILE SIGNATURES. The parties acknowledge that signatures on this
Agreement may be delivered by facsimile in lieu of an original
signature and the parties agree to treat such signatures as original
signatures and shall be bound thereby.
11.10 CONSTRUCTION. Any reference to this Agreement to an "Article,"
"Section" or "Schedule" refers to the corresponding Article, Section or
Schedule of or to this Agreement, unless the context indicates
otherwise. The headings of Articles and Sections are provided for
convenience only and should not affect the construction or
interpretation of this Agreement. All words used in this Agreement
should be construed to be of such gender or number as the circumstances
require. The terms "include" and "including" indicate examples of a
foregoing general statement and not a limitation on that general
statement. Any reference to a statute refers to the statute, any
amendments or successor legislation, and all regulations promulgated
under or implementing the statute, as in effect at the relevant time.
Any reference to a contract or other documents as of a given date means
the contract or other document as amended, supplemented and modified
from time to time through such date.
The parties have executed this Agreement on the date set forth on the
first page of this Agreement.
SELLER PARTIES:
AMERICAN RIVET COMPANY, INC.
By:_____________________________
Name:___________________________
Title:__________________________
Its:____________________________
ASSET PURCHASE AGREEMENT 26 EXECUTION COPY
INDUSTRIAL HOLDINGS, INC.
By: /s/ XXXXXX X. XXXX
----------------------------
Name: Xxxxxx X. Xxxx
Title: President
BUYER:
ARC ACQUISITION CORP.
By: /s/ XXXXXXX X. X'XXXXXX
----------------------------
Xxxxxxx X. X'Xxxxxx
President
ASSET PURCHASE AGREEMENT 27 EXECUTION COPY
