EXHIBIT 10.6
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into as of
December 24, 2001 by and among A.P.F. ACQUISITION CORP., a New York corporation
("Purchaser"); XXX XXXX ("Xxx Xxxx"); XXXXXX XXXX ("Xxxxxx Xxxx", Xxx Xxxx and
Xxxxxx Xxxx collectively, the "Guarantors"); and INTERIORS, INC., a Delaware
corporation ("Seller").
RECITALS
Purchaser desires to acquire from the Seller, and the Seller desires to
sell to Purchaser, all of the assets, business and properties of the A.P.F.
MASTER FRAMEMAKERS division of the Seller (the "APF Division") on the terms and
subject to the conditions contained in this Agreement.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
THE ASSET PURCHASE
1.1 Purchase and Sale of Assets; Assumption of Assumed Liabilities.
(a) The Assets. Subject to the terms and conditions of this
Agreement, at the Closing (as defined in Section 1.2), Purchaser shall acquire
and the Seller shall sell, convey, transfer, assign and deliver to Purchaser,
free and clear of any Liens, except Permitted Liens (as those terms are
hereinafter defined), all, and not less than all, of the assets, properties
(real, personal and mixed) of the APF Division, wherever located (the "Assets"),
and the business and goodwill of the APF Division as a going concern (the
"Business"), all as more fully set forth on Schedule 1.1(a) annexed hereto. The
Assets shall include, without limitation, all of the following Assets of the APF
Division as the same shall exist at the Closing: (i) accounts receivable; (ii)
inventories of raw materials, work in process and finished goods; (iii)
supplies; (iv) prepaid expenses and related items; (v) all trademarks,
tradenames, copyrights, letters patent, patent applications, domain names, trade
secrets, formulae and other intellectual property relating to the Business; (vi)
all machinery, equipment, packing materials and other personal property used in
the Business; (vii) all customer lists, addresses, marketing materials,
brochures and catalogues relating to the Business; (viii) all contracts, orders,
rights under purchase orders, licenses, leases and other agreements relating to
the Business (collectively, "Contracts"); (ix) all real property and interests
in real property used by the APF Division described below; and (x) all other
assets and properties of the Seller which are used solely in connection with the
operation of the Business of the APF Division. On the Closing Date, the Seller
shall execute and deliver to the Purchaser a xxxx of sale for the Assets,
substantially in the form of the xxxx of sale annexed hereto as Exhibit A and
made a part hereof (the "Xxxx of Sale"), pursuant to which the Purchaser shall
receive all of Seller's right, title and interest in and to the Assets.
(b) Excluded Assets. The Assets shall exclude all assets,
properties and rights not described in Section 1.1(a) hereof or listed on
Schedule 1.1(a), including without limitation, all assets and properties of any
subsidiary, division (other than the APF Division), or affiliate of the Seller
and all items listed on Schedule 1.1(b) annexed hereto.
(c) Assumed Liabilities. At the Closing (as defined in Section
1.2), subject to the provisions of Section 1.1(d), Purchaser shall assume, pay,
perform and discharge, when due, all, and not less than all, of the liabilities
and obligations of the Seller and/or the APF Division as at the Closing, to the
extent relating to the APF Division and its Business, including without
limitation the liabilities set forth on Schedule 1.1(c) annexed hereto (the
"Assumed Liabilities"). Such Assumed Liabilities shall include, without
limitation: (i) all accounts payable; (ii) all accrued expenses (including,
without limitation, all accrued taxes, accrued employee compensation, benefit
and related accruals); (iii) obligations under all leases and licenses; (iv)
certain obligations in respect of notes payable of the Seller, consisting of the
assumption by Purchaser of $1,000,000 of principal and accrued interest (the
"Assumed Xxxxxx Debt") out of an aggregate of $2,100,000 of principal and
accrued interest (the "Total Xxxxxx Debt") of secured indebtedness owed by the
Seller to Landis Brothers; (v) all income taxes, property taxes, payroll taxes,
unemployment taxes, franchise taxes and other tax obligations of the APF
Division and the Business (collectively, "Taxes"); (vi) all obligations and
liabilities under all Contracts, irrespective of whether the same has arisen or
shall arise prior or subsequent to the Closing (including, without limitation, a
consulting agreement with Xxxxxx Xxxx calling for $60,000 per year annual
payments and a sales representative agreement with Xxxxx Xxxx calling for an
annual draw against commission of $60,000 per annum); (vii) all commitments and
contingencies relating to the APF Division and the Business, including, without
limitation, all liabilities and obligations in respect of any warranty or
product liability claim, Tax claim, environmental claim, pension or other
employee benefit claim, other demand, litigation, administrative claim or
proceeding, arbitration or other contingencies (collectively, "Contingencies"),
irrespective of whether or not such Contingencies have arisen or shall arise at
any time prior or subsequent to the Closing; (viii) the Main Lease (as defined
in Section 5.4 hereof) for the Mt. Xxxxxx Property (as defined in Section 5.4
hereof); and (ix) the Showroom Leases (as defined in Section 5.4 hereof). On the
Closing Date, the Purchaser shall execute and deliver to the Seller an
assignment and assumption agreement, substantially in the form of Exhibit B
annexed hereto and made a part hereof (the "Assumption Agreement"), pursuant to
which the Purchaser shall assume all of the Assumed Liabilities.
(d) Excluded Liabilities. The Assumed Liabilities shall not
include any other liabilities or obligations of the Seller or any of its
subsidiaries, affiliates or divisions, other than the APF Division, including
without limitation all liabilities and obligations listed on Schedule 1.1(d)
annexed hereto.
1.2 Closing. Subject to the terms and conditions of this Agreement, the
parties hereto shall use their best efforts to consummate the transactions
contemplated hereby (the "Closing") on or before December 27, 2001, at the
offices of Xxxxxxxxx Traurig, LLP in New York, New York, or such other time and
place as the parties may otherwise agree. The date on which the Closing occurs
shall be herein referred to as the "Closing Date."
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1.3 Purchase Price.
(a) The aggregate consideration (the "Purchase Price") that
will be paid by Purchaser to the Seller at the Closing in exchange for the
Assets shall be equal to One Million Seven Hundred and Fifty Thousand Dollars
($1,750,000.00) (the "Minimum Purchase Price"). The foregoing Minimum Purchase
Price is based upon an estimate of the fair market value of the Assets and the
business of the APF Division, as reflected in a business appraisal report
prepared for the benefit of the Seller by Empire Valuation Consultants, Inc.,
dated December 24, 2001 (the "Appraisal Report"). The Seller shall pay the cost
of such Appraisal Report.
Notwithstanding the foregoing, such Minimum Purchase Price
will be increased, dollar for dollar, to an amount which shall equal the
"Unaffiliated Offer Price" (as hereinafter defined) if, prior to Closing the
Seller shall receive a written offer to purchase the APF Division and the
Business from a bona fide third party which is not an "Affiliate" (as that term
is defined in the rules or regulations to the Securities and Exchange Act of
1934, as amended) of the Seller (the "Unaffiliated Offer"), and which
Unaffiliated Offer shall propose to purchase the APF Division and the Business
within a period not to exceed sixty (60) days from the Unaffiliated Offer at a
stated price (the "Unaffiliated Offer Price") which shall be greater than the
Minimum Purchase Price and shall provide for either (x) not less than $1,000,000
in cash to Seller at the closing of such purchase, or (y) the assumption of not
less than $1,000,000 of the Total Xxxxxx Debt and the release of Seller's
liability for such indebtedness. The Purchase Price shall not be reduced if the
Unaffiliated Offer Price shall be less than the Minimum Purchase Price.
(b) The Purchase Price shall be payable at Closing as follows:
(i) the assumption by Purchaser of the Assumed Xxxxxx Debt representing One
Million Dollars ($1,000,000) of the Total Xxxxxx Debt and the delivery to Seller
of a full and unconditional general release by the holder to the extent of the
$1,000,000 amount of Assumed Xxxxxx Debt, and (ii) delivery by the Purchaser to
the Seller of a secured promissory note of the Purchaser in the principal amount
of Seven Hundred and Fifty Thousand Dollars ($750,000.00) in the form of Exhibit
C annexed hereto and made a part hereof (the "Purchase Note").
(c) In the event and to the extent that the Purchase Price
payable by Purchaser at Closing shall be greater than the Minimum Purchase
Price, such excess shall be payable in cash by Purchaser; provided, that if the
Minimum Purchase Price shall be increased by reason of an Unaffiliated Offer,
the Purchaser shall only be required to pay the amount of such increased
Purchase Price in cash to the extent set forth in the Unaffiliated Offer as part
of the Unaffiliated Offer Price. The balance, if any, of the Purchase Price in
excess of the Minimum Purchase Price shall be paid by an increase in the
Purchase Note. To the extent that the Unaffiliated Offer shall include shares of
capital stock of a publicly traded unaffiliated offeror, for purposes of this
Agreement and any increase in the amount of the Purchase Note, such capital
stock shall be deemed to have a value equal to 70% of the average closing price
of such capital stock as traded on any national securities exchange or on the
OTC Bulletin Board, for the twenty (20) consecutive trading days immediately
preceding the date of Seller's receipt of the Unaffiliated Offer. Shares of
capital stock of any unaffiliated offeror which is not publicly traded shall be
deemed to have no value for purposes of this Agreement.
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(d) In the event that an Unaffiliated Offer received by Seller
prior to the Closing shall contain an Unaffiliated Offer Price of more than the
One Million Seven Hundred and Fifty Thousand ($1,750,000) Minimum Purchase
Price, the Purchaser shall have twenty (20) business days from receipt of such
Unaffiliated Offer to advise the Seller whether or not Purchaser elects to pay
such increased Purchase Price in accordance with the provisions of Section
1.3(c) above. In either case, if Purchaser shall fail or refuse to so notify and
advise Seller in writing of Purchaser's decision, the same shall be deemed to be
an election not to match or increase such Purchase Price; in which event, this
Agreement shall terminate and be deemed null and void, ab initio, and without
further force or effect.
(e) On the Closing Date, the Guarantors shall unconditionally
and irrevocably guaranty the Purchaser's full payment and performance of the
Note, when, due, and such persons shall execute and deliver the Guaranty
Agreement annexed hereto as Exhibit D and made a part hereof (the "Guaranty").
(f) It shall be an absolute condition to consummation of the
transactions contemplated by this Agreement that on or before the Closing Date,
Empire Valuation Consultants, Inc. or another recognized banking or appraisal
firm acceptable to Seller, shall deliver to the Board of Directors of the Seller
a written opinion (the "Fairness Opinion"), to the effect that the terms and
conditions of this Agreement, including the Purchase Price, are fair and
reasonable to the Seller from a financial point of view. The Seller shall pay
the cost of such Fairness Opinion.
1.4 Deliveries at Closing. At the Closing, the Seller, on behalf of the
Purchaser, shall deliver to Purchaser the Xxxx of Sale, Assumption Agreement and
other instruments of transfer as shall be reasonably required in order to convey
good and marketable title in and to the Assets and the Business to the
Purchaser, and Purchaser shall pay to the Seller the Purchase Price payable
pursuant to Section 1.3.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
2.1 Title to Assets. As of the date hereof, the Seller owns the Assets
free and clear of any Lien, except only immaterial mechanics liens,
materialmen's liens and the other liens, security interests and encumbrances set
forth on Schedule 2.1 annexed hereto (the "Permitted Liens"). The xxxx of sale,
assignments, endorsements and other instruments of conveyance and transfer
delivered by the Seller to the Purchaser at the Closing will be sufficient to
transfer the Seller's entire interest, legal and beneficial, in the Assets owned
by such Seller to the Purchaser.
2.2 Enforceability. This Agreement has been duly executed and delivered
by Seller and constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms. This Agreement has been
duly and validly authorized and approved by all members of the board of
directors of Seller (with Xxx Xxxx abstaining from any such vote). No suit,
proceeding, injunction or other claim has been asserted against Seller seeking
to enjoin or otherwise prevent the sale and transfer of the Assets to Purchaser
or the consummation of the transactions contemplated by this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND GUARANTORS
As a material inducement to the Seller to enter into this Agreement and
to consummate the transactions contemplated hereby, Purchaser and Guarantors
jointly and severally, except with respect to Section 3.7 which is made solely
by Guarantors, make the following representations and warranties to the Seller:
3.1 Corporate Status. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of New York.
3.2 Corporate Power and Authority. Purchaser has the corporate power
and authority to execute and deliver this Agreement, to perform its respective
obligations hereunder and to consummate the transactions contemplated hereby.
Purchaser has taken all action necessary to authorize its execution and delivery
of this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
3.3 Enforceability. This Agreement has been duly executed and delivered
by Purchaser and constitutes a legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms.
3.4 No Violation. The execution and delivery of this Agreement by the
Purchaser and Guarantors, the performance by them of their respective
obligations hereunder and the consummation by them of the transactions
contemplated by this Agreement will not (i) contravene any provision of the
organizational documents of the Purchaser, (ii) violate or conflict with any
law, statute, ordinance, rule, regulation, decree, writ, injunction, judgment or
order of any governmental authority or of any arbitration award which is either
applicable to, binding upon or enforceable against the Purchaser or Guarantors,
(iii) conflict with, result in any breach of, or constitute a default (or an
event which would, with the passage of time or the giving of notice or both,
constitute a default) under, or give rise to a right to terminate, amend,
modify, abandon or accelerate, any instrument or contract which is applicable
to, binding upon or enforceable against the Purchaser or Guarantors, (iv) result
in or require the creation or imposition of any Lien upon or with respect to any
of the property or assets of the Purchaser or Guarantors, or (v) require the
consent, approval, authorization or permit of, or filing with or notification
to, any governmental authority, any court or tribunal or any other person.
3.5 Status and Knowledge.
(i) Purchaser is not acting on the basis of any
representations and warranties with respect to the APF Division, their
businesses and financial condition other than those contained in this Agreement.
Purchaser is an "Accredited Investor" as defined in Rule 501 of Regulation D
promulgated under the Act. Xxx Xxxx (a Guarantor) has served for the past five
years as Chairman, Chief Executive Officer and President of the Seller and the
APF Division and is intimately familiar with all aspects of the business
operation, financial condition, assets, liabilities, properties and prospects of
the APF Division and the Business.
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(ii) Purchaser and Guarantors are fully aware of the risks
involved in the industry in general and the APF Division's businesses in
particular; Purchaser and Guarantors have conducted their own extensive due
diligence investigations of the APF Division's Business and have not relied on
any information or projections provided by Seller. In connection with their due
diligence review of the APF Division, Purchaser and Guarantors have been
afforded the opportunity to ask questions of, and receive answers from, the
Seller and the APF Division and each of their executive officers and directors
and have in general had access to all information deemed by them material to an
investment decision with respect to the Purchaser's acquisition of the Assets.
(iii) Purchaser and Guarantors acknowledge that they have
discussed this Agreement with independent attorneys and accountants of their
choosing and that they understand the meaning and legal and financial
consequences, both domestic and foreign, of the representations, warranties and
agreements contained herein. The Purchaser and Guarantors acknowledge that
Xxxxxxxxx Xxxxxxx, LLP, counsel to the Seller, may continue to act as Seller's
counsel in this matter, and will in no way advise or otherwise counsel Purchaser
or Guarantors, except in Xxx Xxxx'x capacity as a member of the board of
directors of Seller, if and to the extent that such firm provides legal advice
to the Seller's board of directors. Each of Seller, Purchaser and Guarantors
acknowledge that Xxxxxxxxx Xxxxxxx, LLP will advise the board of directors of
Seller to retain special legal counsel to represent and advise such board of
directors as to its fiduciary responsibilities in connection with this
transaction. Xxxxxxxxx Traurig, LLP will represent the board of Seller in such
matters only if they decline to retain independent legal counsel..
3.6 Solvency. Immediately following the execution of this Agreement and
the consummation of the transactions contemplated in connection herewith, the
assets of the Purchaser at their fair present saleable value (calculated on a
going concern basis) will be in excess of the total amount of its liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities),
Purchaser will be able to pay its obligations and debts as they become due, and
Purchaser will not have unreasonably small capital in order to carry on its
business. All debts owing to third parties by Purchaser are current and not past
due.
3.7 Statement of Financial Condition. The financial condition
disclosures and net worth of the Guarantors as set forth in that certain
Statement of Financial Condition set forth on Schedule 3.7 hereto are true,
correct and complete in all material respects as of the date hereof; and in no
event are Guarantors' net worth, taking into consideration all liens,
liabilities and encumbrances applicable to Guarantors and Guarantors' assets,
less than the net worth disclosed in such Schedule 3.7 as of the date hereof.
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ARTICLE IV
CONDUCT OF BUSINESS PENDING THE CLOSING
4.1 Conduct of Business by the APF Division Pending the Closing. The
Seller covenants and agrees that, between the date of this Agreement and the
Closing Date, the business of the APF Division shall be conducted only in, and
shall not take any action except in, the ordinary course of business consistent
with past practice, except with respect to (i) those actions outside the
ordinary course of business and inconsistent with past practice as to which
Seller provided notice to and received the consent of the Purchaser (such
consent not to be unreasonably withheld) and (ii) the accelerated repayment of
indebtedness and the satisfaction and payment of budgeted items.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Further Assurances; Compliance with Covenants. Each party shall
execute and deliver such additional instruments and other documents and shall
take such further actions as may be necessary or appropriate to effectuate,
carry out and comply with all of the terms of this Agreement and the
transactions contemplated hereby.
5.2 Cooperation. Each of the parties agrees (i) to cooperate with the
other in the preparation and filing of all forms, notifications, reports and
information, if any, required or reasonably deemed advisable pursuant to any
law, rule or regulation in connection with the transactions contemplated by this
Agreement, (ii) to use its respective reasonable best efforts to agree jointly
on a method to resolve any objections by any governmental authority to any such
transactions and (iii) to cooperate with the tax planning objectives of the
other party so long as such cooperation will not adversely impact such party in
such party's sole discretion.
5.3 Confidentiality; Publicity. Except as may be required by law or as
otherwise permitted below, no party hereto or their respective affiliates,
employees, agents and representatives shall disclose to any third party this
Agreement or the subject matter or terms hereof without the prior consent of the
other parties. During the period that this Agreement is in effect, the Purchaser
may disclose this Agreement and related financial information concerning the APF
Division only a bank or finance companies who are considering senior secured
financing for Purchaser. In the event this Agreement is not consummated, all
documents containing any confidential information received in connection with
the performance of this Agreement shall be immediately returned to the providing
party and no copies thereof shall be retained by the returning party. No press
release or other public announcement related to this Agreement or the
transactions contemplated hereby shall be issued by any party hereto without the
prior approval of the other parties.
5.4 Assignment and Assumption of Leases. On the Closing Date, Seller
shall assign to Purchaser, and Purchaser shall assume from Seller, all of the
rights and obligations of the Seller, as tenant, under that certain lease dated
as of January 1, 1997 (the "Main Lease") between Seller and 320 Washford LLC, as
lessor (the "Lessor"), for the property located at 000 Xxxxxxxxxx Xxxxxx, Xx.
Xxxxxx, Xxx Xxxx 00000 (the "Mt. Xxxxxx Property"). In addition, the Purchaser
will assume all obligations of the Seller under the two showroom leases located
at the addresses described in Schedule 5.4 annexed hereto (the "Showroom
Leases").
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5.5 Access to Mt. Xxxxxx Property. After the Closing, and for a period
of six (6) months thereafter, the Purchaser shall make available to the Seller
and its officers, employees and authorized representatives, and to the employees
and authorized representatives of the Seller's equity and financing sources,
complete access and entry during normal business hours to the Mt. Xxxxxx
Property to use such office space as is designated by the Purchaser as Seller's
administrative office space. Such access and entry shall be on a rent-free
basis. Such access shall be limited to activities related to the: (i)
transactions contemplated by this Agreement; and (ii) continuation and
administration of the Seller's business. The Purchaser and the Seller each agree
that neither they nor their officers, directors, employees, agents or authorized
representatives will interfere with any of the other party's operations.
5.6 Security For Note. In addition to the Guaranty, constituting
Exhibit D hereto, at the Closing, Purchaser shall (a) grant Seller a Lien and
security interest on the Assets, subject and subordinated to the priority Liens
of (i) up to $1,500,000 of Purchaser indebtedness to any bank, commercial
finance company or other institutional lender (the "Senior Lender") providing
acquisition and working capital financing to Purchaser, and (ii) up to
$1,000,000 in the senior subordinated Lien granted to secure the Assumed Xxxxxx
Debt, all in accordance with the Security Agreement in the form of Exhibit E
annexed hereto (the "Security Agreement"), and (b) pledge to the Seller, all and
not less than all, of the shares of the capital stock of the Purchaser, all in
accordance with the Pledge Agreement in the form of Exhibit F annexed hereto
(the "Pledge Agreement").
5.7 Termination of Related Party Agreements. On the Closing Date, the
Purchaser shall deliver to the Seller full and complete general releases
executed by each of Xxx Xxxx, Xxxxxx Xxxx, Xxxxxx Xxxx and any other Affiliate
or member of the family of Max and Xxxxxx Xxxx (collectively, the "Xxxx
Affiliated Group"), pursuant to which (a) the Seller and each of its
subsidiaries shall be fully and permanently released from all obligations from
and after the Closing Date under all employment agreements, consulting
agreements or other agreements and arrangements between and among the Seller,
the APF Division or any other subsidiary of the Seller with each member of the
Xxxx Affiliated Group, (b) all such agreements and arrangements shall terminate
and be of no further force or effect, and (c) no member of the Xxxx Affiliated
Group shall have any power or authority from and after the Closing Date to bind
the Seller or any of its subsidiaries in connection with any matter. The
foregoing general releases shall not, however, include obligations from and
after the Closing Date under the Consulting Agreement annexed hereto as Exhibit
G.
5.8 Resignations. On the Closing Date, Xxx Xxxx shall resign as an
officer of the Seller and of each of the subsidiaries of the Seller and shall
tender his unconditional written resignation from all such positions.
5.9 Consulting Agreement. On the Closing Date, Xxx Xxxx shall enter
into a consulting agreement with the Seller in the form of Exhibit G annexed
hereto.
5.10 Securities Cancellation and Redemption. On the Closing Date, Xxx
Xxxx and Xxxxxx Xxxx shall enter into an agreement with the Seller, in
substantially the form of Exhibit H annexed hereto (the "Securities Cancellation
and Redemption Agreement).
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ARTICLE VI
DISCLAIMER
6.1 The Assets are being sold on an "as is" basis, and except for
Seller's warranty that it holds such Assets free and clear of any Lien, and
except for the representation and warranties contained in Article II hereto,
there are no representations or warranties of any kind or nature given by the
Seller under this Agreement that apply to the Assets or the APF Division or any
other matter. Purchaser and Guarantors acknowledge that they have conducted an
investigation as to the condition of the APF Division, the Assets, Business and
financial condition and are familiar with all the risks attendant on the
forgoing and are prepared to purchase the Assets, the Business and the APF
Division on an "as is" basis, and "with all faults".
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF PURCHASER
The obligations of Purchaser to effect the transactions contemplated
hereby shall be subject to the fulfillment at or prior to the Closing of the
following conditions, any or all of which may be waived in whole or in part in
writing by Purchaser:
7.1 Accuracy of Representations and Warranties and Compliance with
Obligations. The representations and warranties of Seller contained in this
Agreement shall be true and correct at and as of the Closing with the same force
and effect as though made at and as of that time. Seller shall have performed
and complied with all of its obligations required by this Agreement to be
performed or complied with at or prior to the Closing. Seller shall have
delivered to the Purchaser a certificate, dated as of the Closing Date,
certifying that such representations and warranties are true and correct and
that all such obligations have been complied with and performed.
7.2 Delivery of the Assets. At the Closing, the Seller shall deliver to
the Purchaser the Xxxx of Sale to the Assets and such other instruments of
transfer of title as are necessary to transfer to Purchaser all of Seller's
right, title and interest in and to the Assets free and clear of any Liens,
other than Liens in respect of the Assumed Xxxxxx Debt.
7.3 Securities Cancellation and Redemption Agreement. Seller shall have
executed and delivered the Securities Cancellation and Redemption Agreement and
Xxx Xxxx and Xxxxxx Xxxx shall have been released from all indebtedness owed to
the Seller.
7.4 Consulting Agreement. On the Closing Date, the Seller shall enter
into a consulting agreement with Xxx Xxxx in the form of Exhibit G annexed
hereto.
7.5 Release of Xxxxxxx Guarantees. On the Closing Date, Xxx Xxxx and
Xxxxxx Xxxx shall be released from their personal guarantees to Xxxxxx Xxxxxxx
(the "Xxxxxxx Guarantees").
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7.6 Payment or Satisfaction of Certain Seller Obligations. On the
Closing Date:
(a) the Limeridge Fund and the Endeavour Fund or their
Affiliates (collectively, the "LE Investors"), or another third party (which may
include the Purchaser) purchased or shall purchase from Foothill Capital all
indebtedness of the Seller secured by Liens on the Assets in consideration for
the assignment of the first priority Liens held by Foothill Capital on the
assets and properties of Seller, including the Assets and the assets and
properties of Seller's Petals, Inc. subsidiary, and
(b) Xxx Xxxx and/or Xxxxxx Xxxx shall be relieved from their
personal guarantees to the Xxxxxx Group in connection with the $1,100,000
portion of the Total Xxxxxx Debt not included in the $1,000,000 of Assumed
Xxxxxx Debt.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF SELLER
The obligations of the Seller to effect the transactions contemplated
hereby shall be subject to the fulfillment at or prior to the Closing of the
following conditions, any or all of which may be waived in whole or in part in
writing by the Seller:
8.1 Accuracy of Representations and Warranties and Compliance with
Obligations. The representations and warranties of Purchaser and Guarantors
contained in this Agreement shall be true and correct at and as of the Closing
with the same force and effect as though made at and as of that time. Purchaser
and Guarantors shall have performed and complied with all of their obligations
required by this Agreement to be performed or complied with at or prior to the
Closing. Purchaser and Guarantors shall have delivered to the Seller a
certificate, dated as of the Closing Date, certifying that such representations
and warranties are true and correct and that all such obligations have been
complied with and performed.
8.2 Consideration. At the Closing, Purchaser shall have paid the
Purchase Price to the Seller.
8.3 Delivery of Purchase Note. At the Closing, the Purchaser shall have
executed and delivered the Purchase Note.
8.4 Delivery of Guaranty. At the Closing, Guarantors shall have each
executed and delivered the Guaranty Agreement.
8.5 Delivery of Pledge and Security Agreement. At the Closing, the
Purchaser and any (applicable) subsidiaries shall have executed and delivered
the Pledge Agreement and the Security Agreement.
8.6 Delivery of Fairness Opinion. At the Closing, Empire Valuation
Consultants, Inc. shall have executed and delivered the Fairness Opinion to the
Seller.
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8.7 Delivery of Lease Assignments. At the Closing, Purchaser shall have
delivered to the Seller the assignment and assumption agreements for the Main
Lease and the Showroom Leases.
8.8 Delivery of Xxxxxx General Release. Seller shall have received from
Xxxxxx X. Xxxxxx and Landis Brothers (collectively, "Xxxxxx") or their
affiliates, a general release, dated as of the Closing Date, and in form and
content acceptable to Seller and its counsel, pursuant to which the Seller shall
be forever released and discharged from all liabilities and obligations owed to
Xxxxxx in respect of the Assumed Xxxxxx Debt.
8.9 Termination of Related Party Agreements. Seller shall have received
from the Xxxx Affiliated Group, general releases in form and content acceptable
to Seller with respect to the termination from and after the Closing of all
related party agreements.
8.10 Resignations and Securities Cancellation and Redemption Agreement.
Seller shall have receive the resignations contemplated by Section 5.8 and Xxx
Xxxx and Xxxxxx Xxxx shall have executed and delivered the Securities
Cancellation and Redemption Agreement.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification of Seller. Purchaser and Guarantors hereby agree,
jointly and severally, to indemnify, protect, save and keep harmless the Seller
and the officers, directors, shareholders (including, without limitation,
Limeridge and Endeavour), affiliates, successors and assigns of the Seller from
and against, and on written demand to pay or to reimburse the Seller and the
officers and directors of the Seller for the payment of, any and all
liabilities, obligations, losses, damages, deficiencies, interest, penalties,
additional amounts, claims (including, without limitation, claims arising out of
negligence or involving strict liability in tort or claims for any tax
liabilities, but excluding any taxes payable by Seller on gain recognized on the
sale of the Assets), suits, actions, costs, expenses and disbursements
(including, without limitation, legal fees, costs and related expenses), of
whatsoever kind and nature ("Expenses") imposed on, incurred by or asserted
against the Seller after the Closing Date (i) relating to any breach of a
representation or warranty or any covenant or agreement made by Purchaser or
Guarantors in or pursuant to this Agreement, (ii) arising directly or indirectly
out of or in any way connected with the ownership, possession, operation or
control of any of the Assets or of the APF Division either prior or subsequent
to the Closing Date, or (iii) arising under any of the Assumed Liabilities;
provided, however, that such Expenses are not judicially determined to have been
attributable to any fraud or theft committed by the Seller or any officer and
director of the Seller, as the case may be, prior to the Closing Date. The
amount of any indemnification payment from Purchaser or Guarantors to Seller or
any officer or director of the Seller shall be equal to the amount that, after
the payment of all taxes imposed thereon, is equal to the amount of the Expenses
of Seller.
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9.2 Indemnification of Purchaser and Guarantors. Seller hereby agrees
to indemnify, protect, save and keep harmless the Purchaser and the Guarantors
from and against, and on written demand to pay, or to reimburse Purchaser and
the Guarantors for the payment of, any and all Expenses imposed on, incurred by
or asserted against Purchaser or the Guarantors after the Closing Date relating
to any breach of a representation or warranty made by Seller in this Agreement;
provided, however, that such Expenses are not judicially determined to have been
attributable to any fraud or theft committed by Purchaser or Guarantors. The
amount of any indemnification payment from Seller to Purchaser and Guarantors
shall be equal to the amount that, after the payment of all taxes imposed
thereon, is equal to the amount of the Expenses of Purchaser and Guarantors.
9.3 Indemnification Procedures. The indemnification obligations under
this Agreement shall be subject to the following procedures:
(a) Third Party Claims. A party or parties hereto agreeing to
be responsible for or to indemnify against any matter pursuant to this Agreement
is referred to herein as the "Indemnifying Party" and the other party or parties
claiming indemnity is referred to as the "Indemnified Party." Promptly after
receipt by an Indemnified Party of notice of the commencement of any action
against it, such Indemnified Party will, if a claim is to be made against the
Indemnifying Party under such Section, give notice to the Indemnifying Party of
the commencement of such action, but the failure to notify the Indemnifying
Party will not relieve the Indemnifying Party of any liability that it may have
to any Indemnified Party, except to the extent that the Indemnifying Party
demonstrates that the defense of such action is prejudiced by the Indemnified
Party's failure to give such notice. With respect to any such action, the
Indemnifying Party will be entitled to participate and be kept informed and, to
the extent that it wishes (unless (i) the Indemnifying Party is also a party to
such action and the Indemnified Party determines in good faith that joint
representation would be inappropriate, or (ii) the Indemnifying Party fails to
provide reasonable assurance to the Indemnified Party of its financial capacity
to defend such action and provide indemnification with respect to such action),
to assume the defense of such action with counsel satisfactory to the
Indemnified Party and, after notice from the Indemnifying Party to the
Indemnified Party of its election to assume the defense of such action, the
Indemnifying Party will not, as long as it diligently conducts such defense, be
liable to the Indemnified Party for any fees of other counsel or any other
expenses with respect to the defense of such action, in each case subsequently
incurred by the Indemnified Party in connection with the defense of such action,
other than reasonable costs of investigation. If the Indemnifying Party assumes
the defense of an action, (i) no compromise or settlement of such claims may be
effected by the Indemnifying Party without the Indemnified Party's consent
(which shall not be unreasonably withheld) unless (A) there is no finding or
admission of any violation of law or any violation of the rights of any Person
and no effect on any other claims that may be made against the Indemnified
Party, and (B) the sole relief provided is monetary damages that are paid in
full by the Indemnifying Party; and (ii) the Indemnified Party will have no
liability with respect to any compromise or settlement of such claims effected
without its consent. If notice is given to the Indemnifying Party of the
commencement of any action and the Indemnifying Party does not, within thirty
(30) days after the Indemnified Party's notice is given, give notice to the
Indemnified Party of its election to assume the defense of such action, the
Indemnifying Party will be bound by any determination made in such action or any
reasonable compromise or settlement effected by the Indemnified Party.
Notwithstanding the foregoing, if an Indemnified Party determines in good faith
that there is a reasonable probability that an action may adversely affect it or
its affiliates other than as a result of monetary damages for which it would be
entitled to indemnification under this Agreement, the Indemnified Party may, by
notice to the Indemnifying Party, assume the exclusive right to defend,
compromise, or settle such action, but the Indemnifying Party will not be bound
by any determination of an action so defended or any compromise or settlement
effected without its consent (which may not be unreasonably withheld).
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(b) Other Claims. A claim for indemnification for any matter
not involving a third-party claim may be asserted by notice to the appropriate
party.
9.4 Limitations on Indemnification. The Purchaser and Guarantors hereby
irrevocably waive any and all rights to indemnification and contribution from
the Seller with respect to any claims or liabilities relating to the APF
Division, whether or not such claims or liabilities arose prior or subsequent to
the Closing Date, under any and all laws, including any environmental laws.
9.5 Survival of Representations and Warranties. Each of the
representations and warranties made by the parties in this Agreement shall
survive after the Closing.
ARTICLE X
DEFINITIONS
"Code" means the Internal Revenue Code of 1986, as amended, and
treasury regulations promulgated thereunder.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including, but not limited to, any conditional sale or
other title retention agreement, any lease in the nature thereof, and the filing
of or agreement to give any financing statement under the Uniform Commercial
Code or comparable law or any jurisdiction in connection with such mortgage,
pledge, security interest, encumbrance, lien or charge) other than as expressly
created under this Agreement or any agreement or instrument attached as an
Exhibit hereto; provided, however, that a leasehold interest shall not be deemed
a "Lien".
"Tax Return" means any tax return, filing or information statement
required to be filed in connection with or with respect to any Taxes.
ARTICLE XI
TERMINATION
11.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date: (a) by mutual written consent of the parties hereto at any
time prior to the Closing; or (b) by either Purchaser or the Seller if the
Closing shall not have occurred on or before December 27, 2001.
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11.2 Effect of Termination. In the event of termination of this
Agreement pursuant to Section 11.1, this Agreement shall forthwith become void
and of no further force and effect and the parties shall be released from any
and all obligations hereunder; provided, however, that nothing herein shall
relieve any party from liability for the willful breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
ARTICLE XII
GENERAL PROVISIONS
12.1 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission if receipt of such transmission is
confirmed, to the following addresses and telecopy numbers (or to such other
addresses or telecopy numbers which such party shall designate in writing to the
other party):
(a) if to Purchaser to:
A.P.F. Acquisition Corp.
000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxxx, Xxx Xxxx 00000
Attn: Xxx Xxxx, CEO
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx, Esq.
XxXxxxxx Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP
00 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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(b) if to the Seller to:
Interiors, Inc.
c/o Limeridge LLC
x/x Xxxxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxxx Drive
P.O. Box 972
Road Town
Tortola, British Virgin Islands
Telephone:
Telecopy: (000) 000-0000
Attn: Xxxxx Xxxx
with a copies to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxxxxx Xxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 212-801-6400
and:
Xxxxxx X. Xxxxxxxx, Esq.
Blank Rome Xxxxxx Xxxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Notice shall be deemed given on the date sent if sent by facsimile
transmission and on the date delivered (or the date of refusal of delivery) if
sent by overnight delivery or certified or registered mail.
12.2 Entire Agreement; No Third Party Beneficiaries. This Agreement
(including the exhibits and schedules attached hereto) and other documents
delivered at the Closing pursuant hereto, contains the entire understanding of
the parties in respect of its subject matter and supersedes all prior agreements
and understandings (oral or written) between or among the parties with respect
to such subject matter. The parties agree that prior drafts of this Agreement
shall not be deemed to provide any evidence as to the meaning of any provision
hereof or the intent of the parties with respect thereto. This Agreement is not
intended to confer upon any Person, other than the parties hereto, any rights or
remedies hereunder.
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12.2 Expenses. The Purchaser and Guarantors shall be responsible for
and pay their own fees and expenses, including their own counsel fees, incurred
in connection with this Agreement or any transaction contemplated hereby.
12.3 Amendment; Waiver. This Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
all parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the exercise of any other right, power or privilege. No waiver of any breach of
any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be implied from
any course of dealing between the parties. No extension of time for performance
of any obligations or other acts hereunder or under any other agreement shall be
deemed to be an extension of the time for performance of any other obligations
or any other acts. The rights and remedies of the parties under this Agreement
are in addition to all other rights and remedies, at law or equity, that they
may have against each other.
12.4 Binding Effect; Assignment. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall be
construed to give any other person any legal or equitable rights hereunder other
than the officers and directors of the Purchaser and Seller as specifically set
forth in Article IX hereto and their respective successors and permitted
assigns. The rights and obligations of this Agreement may be assigned by
Purchaser to any successor or subsidiary controlled by Guarantors. Except as
expressly provided herein, the rights and obligations under this Agreement may
not be assigned by the Seller, without the prior written consent of Purchaser.
12.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument. A telecopy signature of any party shall
be considered to have the same binding legal effect as an original signature.
12.6 Interpretation. When a reference is made in this Agreement to an
article, section, paragraph, clause, schedule or exhibit, such reference shall
be deemed to be to this Agreement unless otherwise indicated. The headings
contained herein and on the schedules are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement or the
schedules.
12.7 Governing Law; Jurisdiction; Severability. This Agreement shall be
construed in accordance with and governed for all purposes by the laws of the
State of New York applicable to contracts executed and to be wholly performed
within such State. With respect to any action that may arise under this
Agreement, the parties hereto irrevocably submit and consent to the exclusive
jurisdiction of the federal court located within Westchester County, State of
New York (or if such court lacks jurisdiction, the state court located therein).
If any word, phrase, sentence, clause, section, subsection or provision of this
Agreement as applied to any party or to any circumstance is adjudged by a court
to be invalid or unenforceable, the same will in no way affect any other
circumstance or the validity or enforceability of any other word, phrase,
sentence, clause, section, subsection or provision of this Agreement. If any
provision of this Agreement, or any part thereof, is held to be unenforceable
because of the duration of such provision or the area covered thereby, the
parties agree that the court making such determination shall have the power to
reduce the duration and/or area of such provision, and/or to delete specific
words or phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced.
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12.8 Arm's Length Negotiations. Each party herein expressly represents
and warrants to all other parties hereto that (a) before executing this
Agreement, said party has fully informed itself of the terms, contents,
conditions and effects of this Agreement; (b) said party has relied solely and
completely upon its own judgment in executing this Agreement; (c) said party has
had the opportunity to seek and has obtained the advice of counsel before
executing this Agreement and, with respect to Purchaser and Guarantors, had
consulted with attorneys and accountants concerning the domestic and foreign
legal and financial consequences of entering into this Agreement; (d) said party
has acted voluntarily and of its own free will in executing this Agreement; (e)
said party is not acting under duress, whether economic or physical, in
executing this Agreement; and (f) this Agreement is the result of arm's length
negotiations conducted by and among the parties and their respective counsel.
12.9 Waiver of Jury Trial. IN ANY CIVIL ACTION, COUNTERCLAIM, OR
PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS OR
RELATES TO THIS AGREEMENT, ANY TRANSACTIONS CONTEMPLATED HEREUNDER, THE
PERFORMANCE HEREOF OR THE RELATIONSHIP CREATED HEREBY, WHETHER SOUNDING IN
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, TRIAL SHALL BE TO A COURT OF
COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT (STATUTORY, CONSTITUTIONAL, COMMON LAW OR OTHERWISE) IT MAY HAVE TO A
TRIAL BY JURY. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE WAIVER OF THE OTHER PARTIES'
RIGHT TO TRIAL BY JURY. NO PARTY HAS MADE OR RELIED UPON ANY ORAL
REPRESENTATIONS BY ANY OTHER PARTY REGARDING THE ENFORCEABILITY OF THIS
PROVISION. EACH PARTY HAS READ AND UNDERSTANDS THE EFFECT OF THIS JURY WAIVER
PROVISION.
[Signatures On Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
A.P.F. ACQUISITION CORP.
By:
-------------------------------------
Xxx Xxxx, President
-------------------------------------
Xxx Xxxx
-------------------------------------
Xxxxxx Xxxx
INTERIORS, INC.
By:
---------------------------------------------
Xxxx York, Administrative Vice President
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