SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): June 4, 1998
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333-26943
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(Commission File Number)
ANCHOR ADVANCED PRODUCTS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-3084238
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(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation)
ANCHOR HOLDINGS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 62-1427775
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(State or Other Jurisdiction) (I.R.S. Employer Identification No.)
of Incorporation)
1111 Northshore Drive, Suite 600, Knoxville, TN 37919-4048
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(Address of Principal Executive Offices) (Zip Code)
(423) 450-5300
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(Registrant's Telephone Number, Including Area Code)
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Item 5. Signing of Stock Purchase Agreement and Purchase and
Sale Agreement.
On June 4, 1998, Anchor Advanced Products, Inc., a Delaware corporation
(the "Company"), entered into a Stock Purchase Agreement (the "Purchase
Agreement") with the selling stockholders of Gemini Plastic Services, Inc.
Pursuant to the terms and conditions of the Purchase Agreement, at the Closing
(as such term is defined in the Purchase Agreement) the Purchaser will acquire
all of the issued and outstanding shares of capital stock of Gemini Plastic
Services, Inc.
On June 4, 1998, the Company entered into a Purchase and Sale Agreement
(the "Purchase and Sale Agreement") with Robert S. Hayberg and Linda Hayberg.
Pursuant to the terms and conditions of the Purchase and Sale Agreement, at the
Closing (as such term is defined in the Purchase and Sale Agreement) the Company
will acquire the land, the buildings and improvements, and Personal Property (as
such term is defined in the Purchase and Sale Agreement) of the Haybergs'
located at Hayberg Industrial Park, Davie, Florida.
Item 7. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits
Exhibit No. Exhibit
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2.1 Stock Purchase Agreement dated as
of June 4, 1998 by and among Anchor
Advanced Products, Inc., and the
Selling Stockholders of Gemini
Plastic Services, Inc.
2.2 Purchase and Sale Agreement dated
as of June 4, 1998 by and among
Anchor Advanced Products, Inc., and
the Robert S. Hayberg and Linda Hayberg.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANCHOR ADVANCED PRODUCTS, INC.
Date: June 11, 1998 By: /s/ Phyllis Best
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Phyllis Best
Chief Financial Officer
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANCHOR HOLDINGS, INC.
Date: June 11, 1998 By: /s/ Phyllis Best
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Phyllis Best
Chief Financial Officer
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STOCK PURCHASE AGREEMENT
BY AND AMONG
GEMINI PLASTIC SERVICES, INC.,
ROBERT HAYBERG, CARL HUNT,
MONTY COCHRAN, PHILLIPS PATTON,
ROBERT DEHNER, CRUGAR TUTTLE,
GREGORY CRONKHITE, WAYNE MOORE
and
ANCHOR ADVANCED PRODUCTS, INC.
================================================================================
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TABLE OF CONTENTS
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Page Number
Introduction................................................................1
ARTICLE I
THE TRANSACTIONS; CLOSING..........................................1
Section 1.01. Purchase and Sale of Shares.........................1
Section 1.02. Certain Definitions.................................1
Section 1.03. Estimated Closing Balance Sheet and Certificate.....2
Section 1.04. Closing.............................................2
Section 1.05. Payments at Closing.................................3
Section 1.06. Determination of Purchase Price.....................3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS......................4
Section 2.01. Organization, Power and Standing....................4
Section 2.02. Foreign Jurisdictions...............................4
Section 2.03. Subsidiaries........................................5
Section 2.04. Validity and Enforceability.........................5
Section 2.05. Capitalization......................................5
Section 2.06. Financial Statements and Condition..................6
Section 2.07. Material Adverse Changes............................6
Section 2.08. Material Contracts..................................6
Section 2.09. Real Property.......................................8
Section 2.10. Personal Property...................................8
Section 2.11. Intellectual Property...............................8
Section 2.12. Accounts Receivable.................................9
Section 2.13. Inventories.........................................9
Section 2.14. Warranty Claims.....................................9
Section 2.15. Customers and Suppliers.............................9
Section 2.16. Required Consents..................................10
Section 2.17. Regulatory and Legal Compliance....................10
Section 2.18. License and Permits................................10
Section 2.19. Tax Matters........................................11
Section 2.20. Litigation.........................................12
Section 2.21. Employees and Compensation.........................12
Section 2.22. ERISA; Compensation and Benefit Plans..............12
Section 2.23. Environmental Matters..............................14
Section 2.24. Insurance..........................................14
Section 2.25. Bank Accounts......................................14
Section 2.26. Affiliate Transactions.............................15
Section 2.27. Absence of Material Undisclosed Liabilities........15
Section 2.28. Brokers............................................15
Section 2.29. Powers of Attorney.................................15
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Section 2.30. Books and Records..................................15
Section 2.31. Disclosure.........................................16
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER..................................................16
Section 3.01. Investment Intent..................................16
Section 3.02. Economic Risk; Sophistication......................16
Section 3.03. Authority..........................................16
Section 3.04. Brokers............................................16
Section 3.05. No Conflict........................................16
Section 3.06. Organization, Power and Standing...................17
Section 3.07. Financial Statements and Condition.................17
ARTICLE IV
COVENANTS OF THE COMPANY AND THE SELLERS..........................17
Section 4.01. Conduct of the Business............................17
Section 4.02. Access.............................................18
Section 4.03. Efforts............................................19
Section 4.04. Nonsolicitation....................................19
Section 4.05. Confidentiality....................................19
Section 4.06. Noncompetition Covenant............................19
Section 4.07. Injunctive Relief; Limitation on Scope.............20
ARTICLE V
COVENANTS OF THE PURCHASER........................................20
Section 5.01. Representations and Warranties.....................20
Section 5.02. Efforts............................................20
Section 5.03. Confidentiality....................................20
ARTICLE VI
COVENANTS OF THE COMPANY, THE SELLERS
AND THE PURCHASER.................................................21
Section 6.01. Consistent Tax Reporting...........................21
Section 6.02. Tax Matters........................................21
Section 6.03. Certain Taxes......................................22
Section 6.04. Environmental Review...............................22
Section 6.05. HSR Act Filings....................................23
Section 6.06 Seller Guarantees..................................23
Section 6.07 Obligation to Disclose.............................23
ARTICLE VII
CONDITIONS TO CLOSING............................................24
Section 7.01. Conditions to Obligations of the Purchaser.........24
Section 7.02. Conditions to Obligations of the
Company and the Sellers............................26
ARTICLE VIII
TERMINATION.......................................................27
Section 8.01. Termination........................................27
Section 8.02. Effect of Termination..............................28
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ARTICLE IX
SURVIVAL; INDEMNIFICATION.........................................29
Section 9.01. Survival...........................................29
Section 9.02. Limits on Claims...................................29
Section 9.03. Indemnification by the Sellers.....................29
Section 9.04. Indemnification by the Purchaser...................29
Section 9.05. Procedures for Indemnification of
Third Party Claims.................................30
ARTICLE X
MISCELLANEOUS.....................................................30
Section 10.01. Notices............................................30
Section 10.02. Severability and Governing Law.....................31
Section 10.03. Amendments; Majority of the Sellers................32
Section 10.04. Expenses...........................................32
Section 10.05. Successors and Assigns.............................32
Section 10.06. Entire Agreement...................................32
Section 10.07. Counterparts.......................................32
Section 10.08. Headings...........................................33
Section 10.09. Release............................................33
Section 10.10. Further Assurances.................................33
Section 10.11. No Third Party Beneficiaries.......................33
Section 10.12. No Waiver..........................................33
Section 10.13. Joint and Several Obligations......................33
Section 10.14. Sellers' Knowledge.................................33
Section 10.15. Definitions........................................33
Section 10.16. Schedules and Exhibits.............................34
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STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement (the "Agreement") is entered into as of
June 4, 1998 by and among Gemini Plastic Services, Inc., a Florida corporation
(the "Company"), Anchor Advanced Products, Inc., a Delaware corporation (the
"Purchaser") and Robert Hayberg, Carl Hunt, Monty Cochran, Phillips Patton,
Robert Dehner, Crugar Tuttle, Gregory Cronkhite and Wayne Moore (each a "Seller"
and sometimes collectively referred to herein as the "Sellers").
Introduction
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The Purchaser wishes to purchase and the Sellers wish to sell all of
the issued and outstanding capital stock of the Company consisting of 1,781,851
shares (the "Shares") of the Company's common stock, $.001 par value per share,
on the terms and conditions set forth herein. The purchase and sale of the
Shares and the other transactions contemplated hereby are sometimes collectively
referred to herein as the "Transactions".
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
THE TRANSACTIONS; CLOSING
Section 1.01. Purchase and Sale of Shares. In reliance upon the
representations and warranties contained herein, and subject to the terms and
conditions hereof, each of the Sellers agrees to sell to the Purchaser, and the
Purchaser agrees to purchase from each Seller, all of such Seller's Shares in
consideration of each Seller's pro-rata portion, as set forth on Schedule 1.01
(the "Appropriate Percent"), of the Purchase Price.
Section 1.02. Certain Definitions. For purposes of this Agreement, the
following terms shall have the meanings set forth below:
(a) "Closing Balance Sheet" means a balance sheet of the
Company prepared as of the Closing Date based on the same procedures and
principles that were applied in the preparation of the Balance Sheet (as
hereinafter defined), and determined in
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accordance with generally accepted accounting principles on a basis consistent
with those used in the preparation of the Balance Sheet.
(b) "Closing Liabilities Amount" means the greater of (i) Four
Million Six Hundred Eighty-Four Thousand Dollars ($4,684,000) or (ii) the
aggregate amount of total liabilities appearing on the Closing Balance Sheet, as
finally determined pursuant to Section 1.06, provided that (A) the capital lease
obligations for newly acquired equipment set forth on Schedule 1.02(b) shall not
be included in the calculation of Closing Liabilities Amount under the
immediately preceding clause (ii) hereof and (B) the indebtedness of the Company
under the promissory notes issued to Affiliates (as hereinafter defined) listed
on Schedule 2.26 (the "Affiliate Notes") which is to be paid in full at Closing
(as hereinafter defined) pursuant to Section 1.05 shall be included in the
calculation of Closing Liabilities Amount.
(c) "Closing Net Book Value" means the stockholders' equity
appearing on the Closing Balance Sheet adjusted to exclude any increases
resulting from asset write-ups, capital contributions, stock sales, or other
transactions effected in connection with the Closing, as finally determined
pursuant to Section 1.06.
(d) "Purchase Price" means Sixteen Million Dollars
($16,000,000), minus (i) the Closing Liabilities Amount and minus (ii) the
amount, if any, by which the stockholders' equity of $2,725,095 appearing on the
Balance Sheet exceeds the Closing Net Book Value.
Section 1.03. Estimated Closing Balance Sheet and Certificate. The
Sellers will cause to be prepared in good faith an estimated Closing Balance
Sheet, prepared in the manner described in Section 1.02(a) for use in
calculating the Purchase Price. At least three (3) days before the Closing Date
(as hereinafter defined), the Sellers will furnish to the Purchaser the
estimated Closing Balance Sheet, together with a certificate of the Sellers'
accounting firm, setting forth the estimated Closing Net Book Value and Closing
Liabilities Amount, and a reconciliation of the changes from the Balance Sheet
to the estimated Closing Balance Sheet.
Section 1.04. Closing. The purchase and sale of the Shares and the
other Transactions contemplated hereby shall take place at a closing (the
"Closing") to be held by mail on (a) June 30, 1998 or (b) if the conditions to
Closing are not satisfied or waived as of such date, on the date that is five
(5) business days after the satisfaction or waiver of the conditions to
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Closing specified in Article VII hereof (the "Closing Date"), subject to Section
8.01(f).
Section 1.05. Payments at Closing.
(a) Purchase Price. At the Closing, the Purchaser shall pay the
estimated Purchase Price, as mutually agreed by the Purchaser and the Sellers,
as follows:
(i) $530,000 to Dubuc, Lucke & Company as their fee due from
the Sellers pursuant to their Exclusive Agreement dated February 9, 1998, in
accordance with wire transfer instructions to be delivered to the Purchaser at
least three (3) days prior to the Closing; and
(ii) the balance to the Sellers, divided among them in
accordance with each Seller's Appropriate Percent, by wire transfer in
accordance with wire transfer instructions delivered by each Seller to the
Purchaser at least three (3) days prior to the Closing.
(b) Affiliate Notes. At the Closing, the Purchaser shall cause the
Company to prepay the outstanding indebtedness under the Affiliate Notes, as set
forth on Schedule 2.26 (an aggregate amount of $378,992), in exchange for the
return of each of the original Affiliate Notes, marked "Paid in Full".
Section 1.06. Determination of Purchase Price.
(a) Within forty-five (45) days after the Closing Date, the Sellers
will deliver to the Purchaser the Closing Balance Sheet and a certificate
executed by the Sellers' accounting firm, stating that the Closing Balance Sheet
was prepared as provided in Section 1.02(a) and setting forth the computation of
the Closing Net Book Value and Closing Liabilities Amount.
(b) If the Purchaser delivers written notice (the "Disputed Items
Notice") to the Sellers within ninety (90) days after receipt by the Purchaser
of the Closing Balance Sheet and certificate referred to in Section 1.06(a)
above, stating that the Purchaser objects to any items on the Closing Balance
Sheet, specifying the basis for such objection and setting forth the Purchaser's
computation of the Closing Net Book Value and Closing Liabilities Amount, the
Purchaser and the Sellers will attempt to resolve and finally determine the
Closing Net Book Value and Closing Liabilities Amount as promptly as
practicable.
(c) If the Purchaser and the Sellers are unable to agree upon the
Closing Net Book Value and Closing Liabilities Amount within thirty (30) days
after delivery of the Disputed Items
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Notice, the matter will be resolved by a mutually acceptable internationally
recognized independent accounting firm which the parties hereby agree to be
Price Waterhouse. The fees, costs and expenses of such accounting firm will be
borne by the party whose positions generally did not prevail in such
determination, or if the accounting firm determines that neither party could be
fairly found to be the prevailing party, then such fees, costs and expenses will
be shared fifty-fifty between the Purchaser and the Sellers.
(d) If the Purchaser does not deliver the Disputed Items Notice to the
Sellers within ninety (90) days after receipt by the Purchaser of the
certificate and Closing Balance Sheet referred to in Section 1.06(a) above, the
Closing Balance Sheet included with the certificate referred to in such section
will be conclusively presumed to be true and correct in all respects and will be
binding upon the parties.
(e) At such time as the Closing Net Book Value, Closing Liabilities
Amount and Purchase Price are so determined, within five (5) days of such
determination, the Sellers shall pay to the Purchaser the amount, if any, in
cash equal to the excess of the estimated Purchase Price paid at Closing over
the Purchase Price as finally determined under this Section 1.06.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE SELLERS
The Sellers hereby jointly and severally represent and warrant to the
Purchaser that each of the statements contained in this Article II is true and
correct and will be true and correct as of the Closing Date:
Section 2.01. Organization, Power and Standing. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida, with all requisite power and authority (corporate and
otherwise) to own, lease and operate its properties and to carry on the business
of injection molding as currently conducted and as currently proposed by the
Company to be conducted (collectively, the "Business").
Section 2.02. Foreign Jurisdictions. The Company is duly qualified and
authorized to do business as a foreign corporation and is in good standing in
each of the jurisdictions listed on Schedule 2.02. The Company is not required
to qualify to do business in any other jurisdiction in which the failure to so
qualify would have a Material Adverse Effect. As used herein, "Material Adverse
Effect" means an effect which is materially
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adverse to the Business, assets, affairs, condition (financial or otherwise) or
prospects of the Company or any material division of the Company, or which would
have such a material adverse effect after the Closing.
Section 2.03. Subsidiaries. The Company has no subsidiaries and does
not, directly or indirectly, own or have the right to acquire any equity
interest in any corporation, joint venture, partnership or other entity. Except
as disclosed on Schedule 2.03, the Company does not have any investment in, loan
to or material advance of cash or other extension of credit to any entity or
individual, other than in the ordinary course of business.
Section 2.04. Validity and Enforceability. This Agreement is, and each
of the other agreements and instruments of the Company and any Seller
contemplated hereby will be, the valid and binding obligations of the Company
and the Sellers who are parties thereto, enforceable in accordance with their
respective terms.
Section 2.05. Capitalization.
(a) The authorized and issued shares of the Company is as set
forth on Schedule 2.05(a) hereto. The Company's outstanding capital stock
consists solely of the Shares, as set forth on Schedule 2.05 hereto, all of
which are owned beneficially and of record by the Sellers in the amounts set
forth on Schedule 2.05 and all of which are duly authorized, validly issued,
fully paid and nonassessable. Each Seller has good, marketable and unencumbered
title to the Shares shown as owned by such Seller on Schedule 2.05(a).
(b) The Purchaser will at the Closing acquire good and
marketable title to the Shares, free and clear of any liens, encumbrances,
security interests, claims, or restrictions, other than restrictions under
applicable securities laws.
(c) Except as set forth on Schedule 2.05(c), there are no
outstanding options, warrants, convertible or exchangeable securities or other
rights that could obligate the Company to issue shares of its capital stock or
other securities; and all of such rights will have been terminated on or before
the Closing.
(d) Except as set forth on Schedule 2.05(d), (i) the Company
is not subject to any obligation (contingent or otherwise) to purchase or
otherwise acquire or retire any of its equity securities, and (ii) no person has
any right of first refusal or preemptive right in connection with the issuance
or sale of the Shares listed on Schedule 2.05(d) or with respect to
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any future offer, and sale or issuance of securities by the Company or the
Sellers; all of such obligations and rights will have been terminated on or
before the Closing.
Section 2.06. Financial Statements and Condition. The Sellers have
delivered to the Purchaser audited balance sheets as at December 31, 1997,
December 31, 1996 and December 31, 1995, and audited statements of income and
retained earnings for the fiscal years then ended. The Sellers have also
furnished to the Purchaser the unaudited balance sheet (the "Balance Sheet") of
the Company as at February 28, 1998 (the "Balance Sheet Date") and the unaudited
statements of income and retained earnings of the Company for the two-month
period then ended. Such financial statements and the notes thereto, if any, are
complete and accurate in all material respects and fairly present the financial
condition and the results of operations of the Company at the respective dates
thereof and the results of its operations for the periods then ended, and were
prepared in accordance with the books and records of the Company in conformity
with generally accepted accounting principles, consistently applied during the
periods covered thereby, except in the case of unaudited financial statements
for the omission of footnotes and normal, immaterial year-end adjustments.
Section 2.07. Material Adverse Changes. Since the Balance Sheet Date,
the Company has operated only in the usual and ordinary course, and there has
been no (a) acquisition or disposition of assets or securities, or commitment
therefor by the Company, except in the ordinary course of business (and even if
in the ordinary course of business, not in excess of $10,000 in any single
instance except to the extent set forth on Schedule 1.02(b) or Schedule 2.07;
(b) liens, security interests or encumbrances placed upon any of the Company's
assets; (c) increase in the compensation or commission rates payable by any
Company to any officer, director, employee with annual compensation of at least
$25,000, or payment or agreement to pay any bonus or similar payment (other than
bonus payments to which any Company is committed, and which are disclosed in
this Agreement), other than as shown on Schedule 2.07; (d) dividend or
distribution, redemption, recapitalization, or other transaction involving the
capital stock of the Company to any Seller or their relatives or affiliates
other than as set forth on Schedule 2.07; or (e) other event or condition which
could have a Material Adverse Effect.
Section 2.08. Material Contracts. Schedule 2.08 sets forth a complete
and accurate list of all:
(a) contracts with respect to which the Company has
any liability or obligation involving more than $10,000,
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contingent or otherwise, or which may extend for a term of more than one year
after the Closing other than purchase orders entered into in the ordinary course
of business;
(b) contracts under which the amount payable by the Company is
dependent on the revenue, income or similar measure of the Company or any other
person or entity;
(c) licenses, leases, contracts and other arrangements with
respect to any material property of the Company, including without limitation,
all real estate leases, material software licenses and material sales and supply
contracts;
(d) agreements, contracts or instruments to which the Company
is a party relating to the borrowing of money, the capital lease or purchase on
an installment basis of any asset, or the guarantee of any of the foregoing;
(e) contracts of the Company with officers, directors or
stockholders of the Company or their relatives or Affiliates (as used herein,
"Affiliate" has the meaning ascribed to it in Rule 405 promulgated under the
Securities Act of 1933, as amended (the "Securities Act"));
(f) all agreements relating to securities of the Company or
rights in connection therewith;
(g) contracts which place any material limitation on the
method of conducting or scope of the Company's Business;
(h) employment, collective bargaining, severance, consulting,
deferred compensation, benefit and similar plans and agreements involving the
Company;
(i) contracts with sales representatives or distributors; and
(j) other material contracts, instruments, commitments, plans
and arrangements of the Company, including without limitation any contracts that
would be required to be disclosed as an exhibit to a Registration Statement on
Form S-1 under the Securities Act filed by the Company.
All the foregoing (whether written or unwritten), including all
amendments or modifications thereto, are referred to as "Material Contracts".
The Sellers have furnished to the Purchaser copies of all Material Contracts.
Each Material Contract sets forth the entire agreement and understanding between
the Company and the other parties thereto. Each Material Contract is valid,
binding and in full force and effect, and
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there is no event which has occurred or exists, which constitutes or which, with
notice, the happening of any event and/or the passage of time, would constitute
a material default or breach under any such contract by the Company or, to the
Sellers' knowledge, any other party thereto, or would cause the acceleration of
any obligation of any party thereto or give rise to any right of termination or
cancellation thereof. The Sellers have no reason to believe that the parties to
any Material Contract will not fulfill their obligations thereunder in all
material respects.
Section 2.09. Real Property.
(a) The Company does not own any interest in real property.
(b) Schedule 2.09(b) sets forth each interest in real property
leased by the Company (the "Leased Property"), the lessor of such leased
property, the annual rent payable by the Company in respect of such leased
property, and each lease or any other arrangement under which such property is
leased. The Company enjoys peaceful and quiet possession of its leased premises,
is not in default under any such leasehold and the Company has not been informed
that the lessor under any of the leases has taken action or threatened to
terminate the lease before the expiration date specified in the lease.
Section 2.10. Personal Property. Except as listed on Schedule 2.10, the
Company has good and marketable title to or a valid leasehold or license
interest in each item of personal property used by it in the Business (including
good and marketable title to all assets reflected on the Balance Sheet other
than those disposed of since the Balance Sheet Date in the ordinary course of
business), free and clear of any charges, security interests or encumbrances of
every kind, nature and description. All material operating assets of the Company
are in good operating condition and repair, normal wear and tear excepted. The
assets and properties of the Company include all assets necessary for or
currently used in the conduct of the Business and are adequate to conduct the
operations of the Company as currently conducted.
Section 2.11. Intellectual Property. Schedule 2.11 sets forth all
patents, trademarks, service marks, trade names, logos, brand names, copyrights,
franchises, industrial designs, licenses and all royalty agreements and other
rights or obligations with respect to the foregoing (collectively, with any
registrations and applications with respect to the issuance or granting of any
of the foregoing, the "Intellectual Property") owned or used by the Company. The
Intellectual Property set forth on Schedule
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2.11 includes all intellectual property used by the Company for the conduct of
the Business. Sellers are unaware of any other intellectual property necessary
for the conduct of the Business. Sellers are unaware of any violating or
infringing uses by the Company in connection with the conduct of the Business of
any trademark, service mark, trade name, patent or copyright owned by any other
person or entity, and no claim has been made asserting the invalidity,
unenforceability or misuse of any of the Intellectual Property. To the knowledge
of the Sellers, no person or entity is violating or infringing any of the
Intellectual Property.
Section 2.12. Accounts Receivable. All of the accounts receivable of
the Company as of the Closing (regardless of age) will be valid and enforceable
claims fully collectible within nine months from the date of invoice and not
subject to set-off or counterclaim. All accounts receivable arose out of bona
fide transactions in the ordinary course of business.
Section 2.13. Inventories. The inventory of the Company reflected on
the Balance Sheet, and all inventory thereafter acquired or produced by it, net
of write-downs and reserves on the Balance Sheet, consists and as of the Closing
will consist of raw materials, manufactured and purchased parts and finished
goods saleable or usable within one year in the ordinary course of business. The
inventory of the Company is and as of the Closing will be fit and sufficient for
the purposes for which it was provided or manufactured and will be normal and
reasonable in kind and amount in light of the normal needs of the Business.
Section 2.14. Warranty Claims. Except as set forth on Schedule 2.14, no
claims, or threatened claims have been made to or against the Company alleging
any material defects in the Company's services or products, or alleging any
material failure of the Company's products to meet specifications. Substantially
all of the Company's contracts with customers, which have been executed within
the twelve (12) month period preceding the date hereof, provide that the
Company's liability for breach of warranty is limited to repair or replacement
of nonconforming parts. Based on the foregoing and historical warranty claims
against the Company, the lack of warranty reserves on the Balance Sheet is
reasonable.
Section 2.15. Customers and Suppliers. Schedule 2.15(a) sets forth a
list of all customers of the Company which accounted for at least $50,000 of
gross sales by the Company during the last eighteen (18) months. Except as set
forth on Schedule 2.15(a), to the knowledge of the Sellers, all such customers
will continue purchasing, without significant reductions, products or services
from the Company, and all other parties that have
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material business relations with the Company will continue such relations. The
Company's relationships with its customers and with its material suppliers are
good commercial working relationships. Except as set forth on Schedule 2.15(a),
during the previous seventeen (17) months no significant customer representing
more than $50,000 of annualized revenues for the Company has terminated, or
threatened to terminate, its relationship with the Company, or has decreased
materially or threatened to decrease or limit materially the services, supplies
or materials purchased from the Company. Schedule 2.15(b) sets forth a complete
list of all vendors of the Company which accounted for at least $250,000 of
annualized payables during the previous seventeen (17) months. Except as set
forth on Schedule 2.15(b), during the previous seventeen (17) months, no
significant vendor representing more than $250,000 of annualized payables has
terminated, or threatened to terminate, its relationship with the Company or
threatened to decrease or limit materially the services, supplies or materials
supplied to the Company.
Section 2.16. Required Consents. Except for the consents specified on
Schedule 2.16, no consent, order, authorization, approval, declaration or
filing, including, without limitation, any consent, approval or authorization of
or declaration or filing with any governmental authority, regulatory body, court
or any party to a Material Contract, is required on the part of the Sellers or
the Company for or in connection with the execution, delivery or performance of
this Agreement or the conduct of the Business by the Company after the Closing,
or to prevent a default. The Sellers have no reason to believe that all of the
required consents and approvals will not be obtained. Subject to obtaining the
consents specified on Schedule 2.16, the execution, delivery and performance of
this Agreement and the other instruments and agreements contemplated hereby by
the Company and the Sellers will not result in any violation of, be in conflict
with or constitute a default under, any law, statute, regulation, ordinance,
contract, agreement, instrument, judgment, decree or order to which the Company
or any Seller is a party or by which the Company or any Seller is bound.
Section 2.17. Regulatory and Legal Compliance. The Company is in
compliance in all material respects with all foreign, federal, state and local
statutes, laws, by-laws, ordinances, judgments, decrees, orders or governmental
rules, regulations, policies and guidelines applicable to it. The Company has
not received any notice from any governmental or regulatory authority or
otherwise of any alleged violation or noncompliance.
Section 2.18. License and Permits. Schedule 2.18 sets forth all
licenses, permits and authorizations of governmental
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authorities held by the Company which are material to the Company or the
Business. The Company is in material compliance with all such licenses, permits
and authorizations, all of which are in full force and effect. To the best of
Sellers' knowledge, there are no other such licenses, permits or authorizations
which are material to the Company or any material division thereof, or the
Business as currently conducted or proposed to be conducted.
Section 2.19. Tax Matters.
(a) Definitions. For purposes of this Agreement, the following
definitions shall apply:
(i) "Tax" shall mean any governmental tax,
assessment, fee, duty, levy or charge of any kind, including without limitation
any interest, penalty or addition related thereto.
(ii) "Tax Returns" shall mean all reports,
estimates, declaration of estimated tax, information statements and returns
relating to, or required to be filed in connection with, any Taxes and any
schedules attached to or amendments of (including refund claims with respect to)
any of the foregoing.
(b) Tax Returns Filed and Taxes Paid. Except as set forth on
Schedule 2.19(b) hereto: (i) all Tax Returns required to be filed by or on
behalf of the Company on or before the Closing Date have been duly filed on a
timely basis, (ii) such Returns are true, complete and correct and (iii) all
Taxes owed by the Company, whether or not shown on any Tax Return, have been
timely paid. The Purchaser has been supplied with true and complete copies of
the Company's income Tax Return, including each franchise or excise Tax Return
based on income filed for all periods ending on or after December 31, 1993. The
Company (A) except as set forth on Schedule 2.19(b), has never been audited or
received notice of initiation thereof by any governmental taxing authority for
which the statute of limitations for assessment of Tax remains open, (B) has
never extended any applicable statute of limitations regarding Taxes for which
the statute of limitations for assessment of Tax remains open, (C) is not
liable, contractually or otherwise, for the Taxes of any other person (other
than Taxes such as sales and uses Taxes arising in the ordinary course of the
Company's business), (D) is not a "consenting corporation" under Section 341(f)
of the Code, (E) has not agreed to or is not required to make any adjustment
under Code Section 481(a) or 263A (as a result of any examination by a Taxing
authority), (F) is not a party to any Tax allocation or sharing agreement, (G)
has
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never participated in the filing of any consolidated, combined or unitary Tax
Return, and (H) is not obligated to make any payments that may not be deductible
as a result of the application of Code Section 280G; and each of the Sellers and
the Company is a "United States person" as such term is used in Code Section
1445.
Section 2.20. Litigation. Except as set forth on Schedule 2.20, there
is no action, suit, proceeding or investigation before any court, arbitrator,
governmental authority or similar body, pending or threatened against the
Company, or, to the knowledge of the Sellers, against any officer, director or
employee of the Company in relation to the affairs of the Company, and after the
Closing, there will be no such action, suit, proceeding or investigation with
respect to the affairs of the Company prior to the Closing.
Section 2.21. Employees and Compensation.
(a) The Company is in compliance with all applicable federal,
state and local laws and regulations respecting employment and employment
practices, and terms and conditions of employment and wages and hours. Except as
described on Schedule 2.21, none of the Company's employees is represented by a
union; and there is no labor strike, dispute, arbitration, grievance, slowdown,
stoppage, organizational effort, dispute or proceeding by or with any employee
or former employee of the Company or any labor union pending or, to the best
knowledge of the Sellers, threatened against the Company.
(b) There are no employment or consulting contracts or
arrangements (other than those terminable at will) with any employees or
consultants of or associated with the Company other than as described on
Schedule 2.08. Schedule 2.21 sets forth a complete list of all employees of and
consultants to the Company, showing date of hire, hourly rate or salary or other
basis of compensation and other benefits accrued as of a recent date, and job
function of salaried employees.
Section 2.22. ERISA; Compensation and Benefit Plans.
(a) Schedule 2.08 sets forth all employee compensation and
benefit plans, agreements, commitments, practices or arrangements of any type
(including, but not limited to, plans described in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) offered,
maintained or contributed to by the Company for the benefit of current or former
employees or directors of the Company, or with respect to which the Company has
or may have any liability, whether direct or indirect, actual or contingent
(including, but not limited to, liabilities arising from affiliation under
Section 414(b), (c),
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(m) or (o) of the Code or Section 4001 of ERISA) (collectively, the "Benefit
Plans"). There are no material compensation or benefit plans, agreements,
commitments, practices or arrangements of any type providing benefits to
employees or directors of the Company, or with respect to which the Company may
have any liability, other than the Benefit Plans.
(b) With respect to each Benefit Plan, the Company has
delivered to the Purchaser true and complete copies of: (i) any and all plan
texts and agreements (including, but not limited to, trust agreements, insurance
contracts and investment management agreements); (ii) any and all material
employee communications (including all summary plan descriptions and material
modifications thereto); (iii) the two most recent annual reports, if applicable;
(iv) the most recent annual and periodic accounting of plan assets, if
applicable; (v) the most recent determination letter received from the Internal
Revenue Service (the "Service"), if applicable; and (vi) in the case of any
unfunded or self-insured plan or arrangement, a current estimate of accrued and
anticipated liabilities thereunder.
(c) With respect to each Benefit Plan: (i) if intended to
qualify under Section 401(a) of the Code, such plan so qualifies, and its trust
is exempt from taxation under Section 501(a) of the Code; (ii) such plan has
been administered and enforced in accordance with its terms and all applicable
laws, regulations and rulings in all material respects; (iii) no breach of
fiduciary duty has occurred with respect to which the Company or any Benefit
Plan may be liable or otherwise damaged in any material respect; (iv) no
material disputes nor any audits or investigations by any governmental authority
are pending or threatened; (v) no "prohibited transaction" (within the meaning
of either Section 4975(c) of the Code or Section 406 of ERISA) has occurred with
respect to which the Company or any Benefit Plan may be liable or otherwise
damaged in any material respect; (vi) all contributions, premiums, and other
payment obligations have been accrued on the consolidated financial statements
of the Company in accordance with generally accepted accounting principles, and,
to the extent due, have been made on a timely basis, in all material respects;
(vii) all contributions or benefit payments made or required to be made under
such plan meet the requirements for deductibility under the Code; (viii) the
Company has expressly reserved in itself the right to amend, modify or terminate
such plan, or any portion of it, at any time without liability to itself; and
(ix) no such plan requires the Company to continue to employ any employee or
director.
(d) No Benefit Plan is, or has ever been, subject to Title IV
of ERISA.
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(e) With respect to each Benefit Plan which provides welfare
benefits of the type described in Section 3(1) of ERISA: no such plan provides
medical or death benefits with respect to current or former employees or
directors of the Company beyond their termination of employment, other than
coverage mandated by Sections 601-608 of ERISA and 4980B(f) of the Code, (ii)
each such plan has been administered in compliance with Sections 601-609 of
ERISA and 4980B(f) of the Code; (iii) no such plan is or is provided through a
"multiple employer welfare arrangement" within the meaning of Section 3(40) of
ERISA; and (iv) no such plan has reserves, assets, surpluses or prepaid
premiums.
(f) The consummation of the Transactions contemplated by this
Agreement will not (i) entitle any individual to severance pay, (ii) accelerate
the time of payment or vesting under any Benefit Plan, or (iii) increase the
amount of compensation or benefits due to any individual.
Section 2.23. Environmental Matters. The ownership or use of the
Company's premises and assets, the occupancy and operation thereof, and the
conduct of the Company's operations and Business are in compliance with all
applicable federal, state, and local laws, ordinances, regulations, standards
and requirements relating to pollution, environmental protection, hazardous
substances and related matters. There is no liability attaching to such premises
or assets or the ownership or operation thereof as a result of any hazardous
substance that may have been discharged on or released from such premises, or
disposed of on-site or off-site, or any other circumstance occurring prior to
the Closing or existing as of the Closing. For purposes of this Section,
"hazardous substance" shall mean oil or any other substance which is included
within the definition of a "hazardous substance", "pollutant", "toxic
substance", "toxic waste", "hazardous waste", "contaminant" or other words of
similar import in any federal, state, or local environmental law, ordinance or
regulation.
Section 2.24. Insurance. Schedule 2.24 sets forth all insurance
policies under which the Company is insured, all of which are valid and in full
force. All premiums due to date under such policies have been paid, and no
default exists thereunder. Except as set forth on Schedule 2.24, the Company has
not received any notice of any proposed increase in the premiums payable for
coverage, or proposed reduction in the scope (or discontinuation entirely) of
coverage, under any of such insurance policies.
Section 2.25. Bank Accounts. Schedule 2.25 sets forth a true, correct
and complete list showing the name and address of each banking institution,
mutual fund or stock brokerage firm in
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which the Company has accounts or safe deposit boxes, the account numbers or box
numbers relating thereto and the name of each person authorized to draw thereon
or to have access thereto.
Section 2.26. Affiliate Transactions. Except as set forth on Schedule
2.26, (a) the Company is not a party to any contract or arrangement, or
indebted, either directly or indirectly, to any of its officers, directors or
stockholders, their relatives or Affiliates, and (b) none of such persons or
entities is indebted to the Company or has any direct or indirect ownership
interest in, or any contractual relationship with, any person or entity with
which the Company is or was affiliated or with which the Company has a business
relationship, or any person or entity which, directly or indirectly, competes
with any Company.
Section 2.27. Absence of Material Undisclosed Liabilities. Except for
(a) accounts payable and accrued expenses reflected on the Balance Sheet and
other similar amounts incurred in the ordinary course of business since the
Balance Sheet Date, (b) obligations of future performance under contracts set
forth on a Schedule hereto and other contracts entered into in the ordinary
course which are not required to be listed on a Schedule hereto, and (c) as set
forth on Schedule 2.27, as of the Closing Date, the Company will have no
material liabilities or obligations, whether absolute, accrued, contingent or
otherwise and whether due or to become due.
Section 2.28. Brokers. Except for Dubuc, Lucke & Co., no finder,
broker, agent, financial advisor or other intermediary has acted on behalf of
the Sellers or the Company in connection with the negotiation or consummation of
this Agreement or the Transactions; and the Sellers shall be responsible for the
payment of any fee, payment, commission or other consideration in connection
therewith as a result of any arrangement made by any of them.
Section 2.29. Powers of Attorney. The Company has no outstanding powers
of attorney.
Section 2.30. Books and Records. All corporate action of the Company's
board of directors and its stockholders has been duly authorized in accordance
with applicable law and the articles and by-laws of the Company and has been
duly and accurately recorded in the Company's minute books. The general ledgers
and books of the Company, its minute books, stock transfer records and all of
its other books, accounts and records (the "Company's Records") are in all
material respects complete and correct and have been maintained in accordance
with good business practice and all applicable laws and regulations.
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Section 2.31. Disclosure. The representations, warranties and other
statements of the Company and the Sellers contained in this Agreement and the
other documents, certificates and written statements furnished to the Purchaser
by or on behalf of the Company or the Sellers pursuant thereto, taken as a
whole, do not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained herein and
therein not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
The Purchaser represents and warrants to the Sellers that each of the
statements contained in this Article III is true and correct and will be true
and correct as of the Closing Date:
Section 3.01. Investment Intent. The Shares to be acquired by the
Purchaser are being acquired solely for the Purchaser's own account, for
investment purposes only and with no present intention of distributing, selling
or otherwise disposing of them in connection with a distribution.
Section 3.02. Economic Risk; Sophistication. The Purchaser is able to
bear the economic risk of an investment in the Shares to be acquired, can afford
to sustain a total loss on such investment and has such knowledge and experience
in financial and business matters that the Purchaser is capable of evaluating
the merits and risks of the proposed investment.
Section 3.03. Authority. The Purchaser has all requisite power and
authority to enter into this Agreement and perform its obligations hereunder,
and this Agreement constitutes a valid and binding obligation of the Purchaser
enforceable against it in accordance with its terms.
Section 3.04. Brokers. No finder, broker, agent, financial advisor or
other intermediary has acted on behalf of the Purchaser in connection with the
negotiation or consummation of this Agreement or any of the Transactions and no
such person or entity is entitled to any fee, payment, commission or other
consideration in connection therewith as a result of any arrangement made by the
Purchaser.
Section 3.05. No Conflict. The execution, delivery and performance of
this Agreement and the other instruments and agreements contemplated hereby by
the Purchaser will not result in any violation of, be in conflict with or
constitute a default
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under, any law, statute, regulation, ordinance, contract, agreement, instrument,
judgment, decree or order to which the Purchaser is a party or by which it is
bound.
Section 3.06. Organization, Power and Standing. The Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, with all requisite power and authority (corporate and
otherwise) to own, lease and operate its properties and to carry on its business
as currently conducted and as currently proposed by the Purchaser to be
conducted.
Section 3.07. Financial Statements and Condition. The Consolidated
Financial Statements of Anchor Holdings, Inc. and Subsidiaries for the years
ended December 31, 1995, 1996 and 1997 and the notes thereto, are complete and
accurate in all material respects and fairly present the financial condition and
the results of operations of the Purchaser at the respective dates thereof and
the results of its operations for the periods then ended, and were prepared in
accordance with the books and records of the Purchaser in conformity with
generally accepted accounting principles, consistently applied during the
periods covered thereby.
ARTICLE IV
COVENANTS OF THE COMPANY AND THE SELLERS
Section 4.01. Conduct of the Business.
(a) The Company will, and the Sellers will cause the Company
to, prior to the Closing:
(i) maintain its corporate existence;
(ii) use all reasonable efforts to preserve its
business organization intact, retain its permits, licenses and franchises,
preserve the existing contracts and goodwill of its customers, suppliers,
personnel and others having business relations with it;
(iii) conduct its business only in the ordinary
course; and
(iv) use all reasonable efforts to operate in
such a manner as to assure that the representations and warranties of the
Sellers set forth in this Agreement will be true and correct as of the Closing
Date.
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(b) The Company will not, and the Sellers will cause the
Company to not, prior to the Closing, without the Purchaser's prior written
consent, which shall not be unreasonably withheld or delayed:
(i) change its method of management or operations
in any material respect;
(ii) dispose of or acquire any material assets or
properties or make any commitment to do so, other than in the
ordinary course of business;
(iii) incur any indebtedness for borrowed money,
make any loans or advances, assume, guarantee or endorse or otherwise become
responsible for the obligation of any other person or entity, or subject any of
its properties or assets to any lien, security interest or encumbrance;
(iv) modify, amend, cancel or terminate any
Material Contract or any other existing agreement material to the Company or its
Business, including the making of any prepayment on any existing obligation;
(v) make any change in the compensation paid or
payable to any officer, director, employee, agent, representative or consultant
of the Company as shown on Schedule 2.21, except to the extent disclosed on
Schedule 2.21, or pay or agree to pay any bonus or similar payment (other than
bonus payments to which any Company is committed, and which are disclosed in
this Agreement);
(vi) make any dividend or distribution, redemption,
recapitalization or other transaction involving the capital stock of the
Company;
(vii) enter into any contract or agreement with
respect to which the Company has any liability or obligation involving more than
$10,000, contingent or otherwise, or which may otherwise have any continuing
effect after the Closing, other than in the ordinary course of business, or
which may place any material limitation on the method of conducting or scope of
the Business; or
(viii) take any other action which would have a
Material Adverse Effect or would adversely affect or detract from the value of
the Company, its assets or the Business.
Section 4.02. Access. Until the Closing Date, the Company will grant to
the Purchaser, its advisors and financing sources and their respective
representatives, during normal business hours, access to its properties,
records, books of account,
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contracts and other documents of the Company, and, within reason, to any
employees, advisors, consultants and other personnel of the Company, requested
by the Purchaser, and, within reason, to other third parties reasonably
requested for confirmation of other information obtained under this Section
4.02. No investigation or findings of the Purchaser shall affect the
representations and warranties of the Sellers hereunder.
Section 4.03. Efforts. The Company and the Sellers will use all
reasonable efforts to cause the conditions specified in Article VII to be
satisfied as soon as practicable.
Section 4.04. Nonsolicitation. Neither the Company nor any of the
Sellers will, directly or indirectly, (a) solicit any competing offers for the
purchase of the Company or all or any substantial portion of its stock or its
assets (including by merger or in any other form of transaction) or (b)
negotiate or otherwise respond, other than to decline to enter into such
negotiations, with respect to any unsolicited offer or indication of interest
with respect to any such purchase. The Sellers will promptly disclose to the
Purchaser all such unsolicited offers or indications of interest.
Section 4.05. Confidentiality. Following the Closing, the Sellers shall
not, directly or indirectly, disclose, divulge or make use of any trade secrets
or other information of a business, financial, marketing, technical or other
nature pertaining to the Company or the Business, including information of
others that the Company has agreed to keep confidential, except to the extent
that such information shall have become public knowledge other than by breach of
this Agreement by any of the Sellers, and except as necessary to file tax
returns or other required reports with governmental agencies or as otherwise
required by law.
Section 4.06. Noncompetition Covenant. For a period of three (3) years
after the Closing (a) none of the Sellers will, directly or indirectly, or as a
stockholder, partner, employee, consultant or other owner or participant in any
business entity other than the Company, engage in or assist any other person or
entity to engage in any business which competes with the Business, anywhere in
the United States or anywhere else in the world where the Company does business,
and (b) none of the Sellers will, directly or indirectly, solicit or endeavor to
entice away from the Company, or otherwise interfere with the business
relationship of the Company with, any person who is, or was within the one-year
period prior to the Closing, a customer or employee of, consultant or supplier
to, or other person or entity having a material business relations with, the
Company.
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Section 4.07. Injunctive Relief; Limitation on Scope. The Sellers
acknowledge that any breach or threatened breach of the provisions of Sections
4.05 or 4.06 of this Agreement will cause irreparable injury to the Purchaser
for which an adequate monetary remedy does not exist. Accordingly, in the event
of any such breach or threatened breach, the Company and the Purchaser shall be
entitled, in addition to the exercise of other remedies, to seek and (subject to
court approval) obtain injunctive relief, without necessity of posting a bond,
restraining the Sellers from committing such breach or threatened breach.
ARTICLE V
COVENANTS OF THE PURCHASER
Section 5.01. Representations and Warranties. Until the Closing Date,
the Purchaser will not take any action that would cause any of the
representations and warranties made by the Purchaser in this Agreement not to be
true and correct in all material respects on and as of the Closing Date with the
same force and effect as if such representations and warranties had been made on
and as of the Closing Date.
Section 5.02. Efforts. The Purchaser will use all reasonable efforts to
cause the conditions specified in Article VII to be satisfied as soon as
practicable.
Section 5.03. Confidentiality. Pending the Closing, all proprietary
information obtained by the Purchaser from or on behalf of the Sellers or the
Company will be kept confidential and will not be disclosed by the Purchaser
other than to its directors, officers, employees, advisors and financing
sources; provided that the foregoing restriction shall not apply to information
which (a) is lawfully and independently obtained by the Purchaser from a third
party without restriction as to disclosure by the Purchaser, (b) was known by
the Purchaser prior to its disclosure by or on behalf of the Company or the
Sellers, (c) is in the public domain or enters into the public domain through no
fault of the Purchaser, (d) is independently developed by the Purchaser without
reference to information provided by the Company or the Sellers or (e) the
Purchaser is required by law or legal process to disclose. If this Agreement is
terminated, the Purchaser will cause to be delivered to the Company all
materials obtained by the Purchaser from or on behalf of the Company or the
Sellers, whether obtained before or after the execution hereof.
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ARTICLE VI
COVENANTS OF THE COMPANY, THE SELLERS
AND THE PURCHASER
Section 6.01. Consistent Tax Reporting. The Sellers, the Company and
the Purchaser shall (a) treat and report the transactions contemplated by this
Agreement in all respects consistently for purposes of any federal, state, local
or foreign tax and (b) not take any actions or positions inconsistent with the
obligations of the parties set forth herein.
Section 6.02. Tax Matters.
(a) Taxes Due for Full or Partial Periods Ending On or Prior
to the Closing Date.
(i) Subject to Subsection (ii) below, the Sellers
shall be liable for and shall indemnify the Purchaser against all Taxes paid or
that are ever payable by or in respect of the Company or its predecessors with
respect to a period ending on or prior to the Closing Date or that are allocable
to the period on or prior to the Closing Date and for any Taxes of any other
person for which the Company or its successors are found to be liable,
contractually or otherwise, other than for periods after the Closing and other
than sales, use, property and other similar taxes incurred in the ordinary
course of business and not payable by the Purchaser or the Company directly to
any taxing authority. Any indemnification payment required by this Section
6.02(a) shall be paid within the later of 15 days of notice from the Purchaser
or the date such Tax is required to be paid to the applicable Taxing authority.
(ii) For purposes of allocating any item of
income, gain, loss, deduction or credit of the Company between the period ending
on or before the Closing Date and the period beginning thereafter, the books of
the Company shall be closed as of the close of business on the Closing Date,
and, in the case of any such item arising in the taxable year that includes the
Closing Date that is not specifically allocable to one of such periods, such
item shall be allocated between such periods pro rata to the number of days in
each.
(b) Preparation of Tax Returns and Conduct of Audits.
(i) The Purchaser shall prepare or cause to be
prepared and timely filed all Tax Returns for the Purchaser and the Company and
their predecessors that are due on or after the
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Closing Date and the Sellers shall prepare or cause to be prepared and filed (at
Sellers' expense) all other Tax Returns of the Company, which, in each case,
shall be prepared consistent with the Company's past custom and practice. The
Sellers and the Purchaser shall be given a reasonable opportunity to comment on
any such Tax Returns prior to their filing and no position shall be taken in
such Returns that is materially adverse to the Purchaser or the Company without
the Purchaser's consent, which shall not be unreasonably withheld.
(ii) Except as provided below, the Purchaser and
the Company shall have sole responsibility for the filing of any amended return
and dealing with the appropriate governmental authorities in connection with any
audit or review of a Tax Return for the Company for any period or portion
thereof ending on or prior to the Closing Date and with respect to all Tax
Returns for subsequent periods. In the event that they may become liable for any
indemnification payment to the Purchaser or the Company as a result of such a
proceeding, the Sellers shall have the right to participate in such proceeding
at their own expense.
(iii) The Sellers, the Purchaser and the Company
shall cooperate fully in connection with any such Tax Return and its
preparation, audit or review and shall retain such records, make them available
to such other party and take such steps as may be reasonably necessary to avoid,
mitigate or reduce any Tax imposed on the Sellers, the Purchaser or the Company.
(c) Tax Sharing Agreements. Any Tax sharing agreement between
or among any of the Sellers and the Company or between and among the Company and
any other person shall be terminated immediately before the Closing Date and
shall have no further effect for any Taxable period.
Section 6.03. Certain Taxes. All transfer, documentary, sales, use,
real property gains, stamp, registration, and other such Taxes and fees
(including any penalties and interest) incurred in connection with this
Agreement shall be paid by the Sellers when due, and the Company will, at the
Sellers' expense, file all necessary Tax Returns and other documentation with
respect to all such transfer, documentary, sales, use, real property gains,
stamp, registration, and other Taxes and fees, and, if required by applicable
law, the Purchaser and the Sellers will join in the execution of any such Tax
Returns and other documentation.
Section 6.04. Environmental Review. Sellers will, and will cause the
Company to, give full cooperation to an environmental engineering firm or firms
designated by Purchasers to conduct,
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prior to the Closing, environmental studies of the Company's facility in Davie,
Florida (the "Facility").
Section 6.05. HSR Act Filings. To the extent required in connection
with the transactions contemplated by this Agreement, each of the Purchaser and
the Sellers shall promptly make or cause to be made any and all required filings
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), and will request early termination of the waiting period required
under the HSR Act. The parties agree to cooperate and promptly respond to any
inquiries or investigations initiated by the Federal Trade Commission or the
Department of Justice in connection with any such filings.
Section 6.06. Seller Guarantees. The Sellers have individually
guaranteed certain of the Company's outstanding liabilities, as set forth on
Schedule 6.06 (the "Guaranteed Obligations"). The parties intend that the
Sellers be relieved of responsibility under such Guaranteed Obligations, and
have agreed as follows:
(a) Purchaser and Sellers will cooperate using reasonable efforts to
cause the third party beneficiaries of such Guaranteed Obligations to release
Sellers from their obligations thereunder;
(b) in instances in which such Guaranteed Obligations may be refinanced
without any additional cost to Purchaser or the Company, Purchaser agrees to use
reasonable efforts to refinance such Guaranteed Obligations;
(c) Purchaser agrees to cause the Company to indemnify the Sellers from
and hold each of them harmless against liabilities arising under the Guaranteed
Obligations; and
(d) After the Closing, Purchaser will not take any action to increase
the amount of the Guaranteed Obligations, other than in connection with asset
financings and orders placed prior to the Closing; and
(e) Purchaser will not cause the Company to be sold (either through a
merger or a sale of capital stock or substantially all of the Company's assets
or otherwise) to any third party, unless such third party agrees to be bound by
the terms of this Section 6.06.
Section 6.07. Obligations to Disclose. If any Seller or the Purchaser
becomes aware of an inaccuracy in a schedule hereto, such party shall so inform
the other.
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ARTICLE VII
CONDITIONS TO CLOSING
Section 7.01. Conditions to Obligations of the Purchaser. Unless waived
in writing by the Purchaser, the obligation of the Purchaser hereunder to
consummate the Transactions is subject to the satisfaction at or prior to the
Closing of the following conditions (provided that the conditions set forth in
Sections 7.01(i), (j) and (k) shall be deemed waived unless Purchaser
specifically identifies to the Sellers its dissatisfaction thereunder on or
before June 30, 1998):
(a) Representations and Warranties True. The representations
and warranties contained in Article II shall be true and accurate in all
material respects (except that the representations and warranties in Sections
2.01 and 2.05 shall be true and correct in all respects) on and as of the date
of the Closing with the same effect as though made on and as of such date.
(b) Covenants Performed. The Company and the Sellers shall
have performed and complied in all material respects with the covenants,
agreements and conditions required to be performed or complied with by them
hereunder on or prior to the date of the Closing.
(c) Compliance Certificate. The Purchaser shall have
received a certificate of the Sellers certifying as to the matters set forth in
Subsections (a) and (b) above.
(d) Licenses, Consents, etc. Received. The Company and the
Sellers shall have obtained and delivered to the Purchaser copies of all
consents, licenses, approvals and permits of other parties (i) listed on
Schedule 2.16 or (ii) otherwise required to be obtained for the Transactions
contemplated hereby and, as to which the failure to obtain the same would have a
Material Adverse Effect or interfere with the Company's right or ability to
consummate the Transactions, or the Company's ability to carry on the Business
after the Closing, and no such consent, license, approval or permit shall have
been withdrawn or suspended.
(e) No Injunction. The consummation of the Transactions
contemplated hereby shall not violate any order, decree or judgment of any court
or governmental body having competent jurisdiction.
(f) Facility. The Purchaser shall have entered into
satisfactory arrangements for the lease or purchase of the Facility.
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(g) Share Certificates. The Purchaser shall have received
certificates evidencing the Shares.
(h) Certificates; Documents. The Purchaser shall have received
such other certificates, documents and materials as it shall reasonably request.
(i) Environmental Review. The findings of the Purchaser's
review of the Facility, assets and operations, with respect to environmental,
health, safety, pollution and related matters, shall be satisfactory to the
Purchaser, such review to have been completed on or before June 30, 1998.
(j) Due Diligence. The findings of the Purchaser's review of
the customers, suppliers and employees of the Company shall be satisfactory to
the Purchaser, such review to have been completed on or before June 30, 1998.
The Purchaser shall be satisfied that such customers, suppliers and employees
will remain the customers, suppliers and employees of the Company, in the case
of customers, at sales levels after the Closing which are consistent with sales
levels of the twelve month period preceding the Closing.
(k) Satisfactory Appraisals. The Purchaser shall have received
appraisals satisfactory to it and its financing sources with respect to the
property, plant and equipment of the Company, such appraisals to have been
completed on or before June 30, 1998.
(l) Financing Sources. Sellers shall have executed and
delivered to Purchaser's financing sources such agreements and other items as
such financing sources may reasonably request.
(m) Resignation of Officers and Directors of the Company.
Sellers shall have delivered to Purchaser resignations from all of the Company's
officers and directors, as requested by Purchaser.
(n) Opinion of Counsel to the Company and the Sellers. The
Purchaser and its financing sources shall have received an opinion of Abrams
Anton, P.A., counsel to the Company and the Sellers, dated as of the date of the
Closing, covering the matters set forth in Exhibit 7.01(n).
(o) Termination of Contracts. The Purchaser shall have
received evidence satisfactory to it of the termination (without any further
liability of the Company) of (i) all of the contracts and obligations set forth
on Schedule 2.05(c) and Schedule 2.05(d) and (ii) the Company's lease for the
Facility.
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(p) Actions and Proceedings. Prior to the Closing, all
actions, proceedings, instruments and documents required to carry out the
transactions contemplated hereby or incident hereto and all other legal matters
required for such transactions shall have been reasonably satisfactory to
counsel for the Purchaser.
Section 7.02. Conditions to Obligations of the Company and the Sellers.
Unless waived in writing by the Sellers, the obligation of the Company and the
Sellers hereunder to consummate the Transactions is subject to the satisfaction
at or prior to the Closing of the following conditions:
(a) Representations and Warranties True. The representations
and warranties contained in Article III shall be true and accurate in all
material respects on and as of the date of the Closing with the same effect as
though made on and as of such date.
(b) Covenants Performed. The Purchaser shall have performed
and complied in all material respects with the covenants, agreements and
conditions required to be performed or complied with by it under this Agreement
on or prior to the date of the Closing.
(c) Compliance Certificate. The Sellers shall have received a
certificate of the Purchaser certifying as to the matters set forth in
Subsections (a) and (b) above.
(d) Licenses, Consents, Etc. Received. The Purchaser shall
have obtained all consents, licenses, approvals and permits of other parties
required to be obtained by it for the transactions contemplated hereby, in each
case in which the failure to obtain the same would materially interfere with the
Purchaser's right or ability to consummate the Transactions contemplated hereby,
and no such consent, license, approval or permit shall have been withdrawn or
suspended.
(e) No Injunction. The consummation of the Transactions
contemplated hereby shall not violate any order, decree or judgment of any court
or governmental body having competent jurisdiction.
(f) Facility. The Purchaser shall have entered into
satisfactory arrangements for the lease or purchase of the Facility.
(g) Cash Purchase Price. The Purchaser shall have paid the
Cash Purchase Price.
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(h) Certificates; Documents. The Sellers and the Company shall
have received such certificates, documents and materials as they shall
reasonably request.
(i) Opinion of Counsel to the Purchaser. The Company and the
Sellers shall have received an opinion of Choate, Hall & Stewart, counsel to the
Purchaser, dated as of the date of the Closing, to the effect set forth in
Exhibit 7.02(i).
(j) Actions and Proceedings. Prior to the Closing, all
actions, proceedings, instruments and documents required to carry out the
Transactions contemplated hereby or incident hereto and all other legal matters
required for such Transactions shall have been reasonably satisfactory to
counsel for the Company and the Sellers.
ARTICLE VIII
TERMINATION
Section 8.01. Termination. This Agreement and the Transactions
contemplated hereby may be terminated at any time prior to the Closing:
(a) by mutual written consent of the Purchaser and the
Sellers;
(b) by the Purchaser, if the Company or the Sellers shall have
breached or failed to perform in any material respect any of their obligations,
covenants or agreements under this Agreement, or if any of the representations
and warranties of the Sellers set forth in this Agreement shall not be true in
any material respect, and such breach, failure or misrepresentation is not cured
to the Purchaser's reasonable satisfaction within 10 days after the Purchaser
gives the Company or the Sellers written notice identifying such breach, failure
or misrepresentation;
(c) by the Sellers, if the Purchaser shall have breached or
failed to perform in any material respect any of its obligations, covenants or
agreements under this Agreement, or any of the representations and warranties of
the Purchaser set forth in this Agreement shall not be true in any material
respect, and such breach, failure or misrepresentation is not cured to the
Sellers' reasonable satisfaction within 10 days after the Sellers give the
Purchaser written notice identifying such breach, failure or misrepresentation;
(d) by the Purchaser, if the conditions set forth in Section
7.01 become incapable of satisfaction;
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(e) by the Sellers, if the conditions set forth in Section
7.02 become incapable of satisfaction; or
(f) by the Purchaser or the Sellers, if the Closing shall not
have occurred on or before July 15, 1998 or such other date, if any, as the
Purchaser and a "Majority of the Sellers" (based on their proportionate holdings
of Shares) may agree in writing, provided that, if the Closing has not occurred
by July 15, 1998, the Purchaser may, at its option, extend the July 15, 1998
date under this Section 8.01(f) for an additional thirty (30) days by placing
$100,000 into escrow under the terms of an escrow agreement which the Purchaser
and a Majority of the Sellers shall in good faith negotiate and execute;
except that this Agreement may not be terminated under this Section by any party
that is in breach of any representation or warranty or in violation of any
covenant or agreement contained herein.
Section 8.02. Effect of Termination.
(a) If this Agreement is terminated (i) under Section 8.01(a)
herein or (ii) under Sections 8.01(d), (e) or (f) herein at a time when no party
is in breach of a representation or warranty or in violation of a covenant or
agreement contained herein, all further obligations of the Company and the
Sellers to the Purchaser, and of the Purchaser to the Company and the Sellers,
will terminate without further liability of any party hereto.
(b) If this Agreement is terminated under Section 8.01(b),
(c), (d), (e) or (f) herein at a time when one or more parties is in breach of a
representation or warranty or in violation of a covenant or agreement contained
in this Agreement, the liabilities and obligations of the parties not in breach
or violation of this Agreement shall terminate, and the party or parties which
are in breach or violation of this Agreement shall remain liable for such
breaches and violations, and nothing shall be deemed to restrict the remedies
available against such party or parties.
(c) The obligations of the Purchaser under Section 5.03 shall
survive the termination of this Agreement for a period of two years.
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ARTICLE IX
SURVIVAL; INDEMNIFICATION
Section 9.01. Survival. The representations, warranties, covenants and
agreements contained herein shall survive the Closing and any investigation made
by the Purchaser, the Sellers or the Company. No action for a breach of the
representations and warranties contained herein, or any covenant contained
herein to be performed prior to the Closing Date, shall be brought more than two
years following the Closing Date, except for (a) claims arising out of the
representations, warranties and covenants contained in Section 2.05, the first
sentence of Section 2.10, Section 2.19, Section 2.20, Section 2.23, Section
2.26, Section 2.28, and Section 3.04 (the "Specified Representations") and (b)
claims of which the Sellers have been notified with reasonable specificity by
the Purchaser, or claims of which the Purchaser has been notified with
reasonable specificity by the Sellers, within such two-year period.
Section 9.02. Limits on Claims. If the Closing occurs, neither party
shall be entitled to recover any damages for a breach of the representations and
warranties contained herein or for the breach of any covenant to be performed
prior to the Closing (a) unless and until such party's aggregate claims therefor
exceed $62,500, or (b) for an aggregate amount in excess of the Purchase Price;
provided, that the claims for breaches of the representations, warranties and
covenants contained in Sections 2.28 and 3.04 shall not be subject to the
foregoing limits and shall not be included in the determination of whether,
jointly and severally, the limit in clause (b) has been reached.
Section 9.03. Indemnification by the Sellers. Subject to any applicable
limitations set forth in Section 9.02, the Sellers, jointly and severally,
hereby indemnify and hold the Purchaser harmless from and against all claims,
liabilities, obligations, costs, damages, losses and expenses of any nature
(including reasonable attorneys fees), arising out of or relating to any breach
of the representations, warranties, covenants or agreements of the Company or
the Sellers set forth herein.
Section 9.04. Indemnification by the Purchaser. Subject to any
applicable limitations set forth in Section 9.02, the Purchaser hereby
indemnifies and holds the Sellers harmless from and against all claims,
liabilities, obligations, costs, damages, losses and expenses of any nature
(including reasonable attorneys' fees), arising out of or relating to (a) any
breach of the representations, warranties, covenants or agreements of the
Purchaser set forth herein or (b) the operation of the Company or the Business
by the Purchaser after the Closing, except for
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matters as to which Sellers have an obligation of indemnification to Purchaser
hereunder.
Section 9.05. Procedures for Indemnification of Third Party Claims.
(a) A party or parties entitled to indemnification hereunder
with respect to a third party claim (the "Indemnified Party") will give the
party or parties required to provide such indemnification (the "Indemnifier")
prompt written notice of any legal proceeding, claim or demand instituted by any
third party (in each case, a "Claim") in respect of which the Indemnified Party
is entitled to indemnification hereunder.
(b) The Indemnifier shall have the right, by giving notice to
the Indemnified Party within 10 days after receipt of notice from the
Indemnified Party of a Claim, stating that the Indemnifier is responsible for
such Claim, at its expense, to defend against, negotiate, settle or otherwise
deal with any Claim with respect to which it is the Indemnifier and to have the
Indemnified Party represented by counsel, reasonably satisfactory to the
Indemnified Party, selected by the Indemnifier; provided, that the Indemnified
Party may participate in any proceeding with counsel of its choice and at its
expense; provided further, that the Purchaser, at any time when it believes in
good faith that any Claim with respect to which the Sellers are defending it or
the Company, is having or will have a Material Adverse Effect, may assume the
defense and settlement of such Claim in good faith, with counsel of its choice,
and be fully indemnified therefor; and provided further, that the Indemnifier
may not enter into a settlement of any Claim without the consent of the
Indemnified Party unless such settlement requires no more than a monetary
payment for which the Indemnified Party is fully indemnified.
(c) The parties will cooperate fully with each other in
connection with the defense, negotiation or settlement of any Claim.
ARTICLE X
MISCELLANEOUS
Section 10.01. Notices. All notices, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person, or mailed by certified or registered mail, or sent by a
nationally recognized overnight courier service, or otherwise actually
delivered:
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(a) if to the Company, to:
Gemini Plastic Services, Inc.
2200 S.W. 71st Terrace
Davie, Florida 33317
(b) if to the Sellers, to:
c/o Crugar Tuttle
Gemini Plastic Services, Inc.
2200 S.W. 71st Terrace
Davie, Florida 33317
with a copy to:
Abrams Anton P.A.
2021 Tyler Street
P.O. Box 229010
Hollywood, Florida 33022-9010
Attention: Gene K. Glasser, Esq.
and
William S. Kramer, Esq.
(c) if to the Purchaser, to:
Anchor Advanced Products, Inc.
1111 North Shore Drive
Suite N600
Knoxville, TN 37919
Attention: Charles B. Schiele
and
Choate, Hall & Stewart
Exchange Place
53 State Street
Boston, MA 02109
Attention: Nora J. Schneider, Esq.
or at such other address as may have been furnished by such person in writing to
the other parties.
Section 10.02. Severability and Governing Law. If any provision of this
Agreement is rendered void, invalid or unenforceable by any court of law for any
reason, such invalidity or unenforceability shall not void or render invalid or
unenforceable any other provision of this Agreement. This
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Agreement shall be governed by and construed in accordance with the laws of the
state of Florida.
Section 10.03. Amendments; Majority of the Sellers. This Agreement may
be changed, waived or terminated only with the written consent of the Purchaser
and a Majority of the Sellers Subject to the foregoing, no waiver of any term or
provision hereof shall be effective unless in writing signed by the party
waiving such term or provision. Any provision hereunder requiring the approval
or consent by the Sellers shall mean the approval or consent by a Majority of
the Sellers.
Section 10.04. Expenses. If the Transactions contemplated hereby are
consummated, each party shall bear its own respective costs and expenses,
including, without limitation, all amounts due to their respective legal and
accounting advisers. All costs incurred by the Sellers will not be paid by the
Company.
Section 10.05. Successors and Assigns. This Agreement, and all
provisions hereof, shall be binding upon and inure to the benefit of the
respective permitted successors and assigns of the parties hereto, provided that
this Agreement may not be assigned by the Sellers without the prior written
consent of the Purchaser. Upon prior notice to the Sellers, Purchaser shall have
the right to assign its rights and obligations hereunder to an affiliate of
Purchaser, in which case such affiliate shall be substituted for Purchaser under
this Agreement in all respects and the provisions of this Agreement shall be
deemed to be modified to reflect such assignment. In addition, the Purchaser
hereunder shall have the right to assign this Agreement without the written
consent of the Sellers or the Company to any successor to the Purchaser's
business or to any bank or other financial institution which is or becomes a
lender to the Company or the Purchaser.
Section 10.06. Entire Agreement. This Agreement, the attached exhibits
and schedules and the other agreements, documents and instruments contemplated
hereby contain the entire understanding of the parties, and there are no further
or other agreements or understandings, written or oral, in effect between the
parties relating to the subject matter hereof unless expressly referred to
herein.
Section 10.07. Counterparts. This Agreement may be executed in one or
more counterparts, and with counterpart signature pages, each of which shall be
an original, but all of which together shall constitute one and the same
Agreement, and each such counterpart may be delivered by telecopy and any such
delivery shall be as effective as delivery of a manually signed counterpart.
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Section 10.08. Headings. The headings of Articles and Sections herein
are inserted for convenience of reference only and shall be ignored in the
construction or interpretation hereof.
Section 10.09. Release. Effective as of the Closing, the Sellers each
release the Company, its officers, directors and employees, from any and all
claims, liabilities, obligations, damages, expenses and other amounts of every
kind or description arising or existing prior to the Closing Date.
Section 10.10. Further Assurances. Following the Closing, the Sellers
will execute and deliver to the Purchaser and the Company such documents and
take such other actions as the Purchaser may reasonably request in order to
consummate the Transactions.
Section 10.11. No Third Party Beneficiaries. Nothing in the Agreement
shall be construed to confer any right, benefit or remedy upon any person or
entity that is not a party hereto or a permitted assignee of a party hereto.
Section 10.12. No Waiver. No failure to exercise and no delay in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The rights provided are cumulative and not
exclusive of any rights provided by law.
Section 10.13. Joint and Several Obligations. All obligations of the
Sellers hereunder are the joint and several obligations of each Seller
hereunder.
Section 10.14. Sellers' Knowledge. Any use herein of the phrases "to
Sellers' knowledge", "to the best of Sellers' knowledge", "as far as the Sellers
are aware," or phrases of similar meaning, shall mean the knowledge of any
Seller after due inquiry.
Section 10.15. Definitions. The following terms, as used in this
Agreement, have the meanings given to them in the sections indicated:
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Term Section or Place Where Defined
---- ------------------------------
Affiliate Section 2.08(e)
Affiliate Notes Section 1.02(b)
Agreement Preamble
Appropriate Percent Section 1.01
Balance Sheet Section 2.06
Balance Sheet Date Section 2.06
Benefit Plans Section 2.22(a)
Business Section 2.01
Claim Section 9.05(a)
Closing Section 1.03
Closing Balance Sheet Section 1.02(a)
Closing Date Section 1.03
Closing Liabilities Amount Section 1.02(b)
Closing Net Book Value Section 1.02(c)
Company Preamble
Company's Records Section 2.30
Disputed Items Notice Section 1.05(b)
ERISA Section 2.22(a)
Facility Section 6.04
HSR Act Section 6.05
Guaranteed Obligations Section 6.06
Indemnified Party Section 9.05(a)
Indemnifier Section 9.05(a)
Intellectual Property Section 2.11
Leased Property Section 2.09(b)
Majority of the Sellers Section 8.01(f)
Material Adverse Effect Section 2.02
Material Contracts Section 2.08
Owned Property Section 2.09(a)
Purchase Price Section 1.02(d)
Purchaser Preamble
Securities Act Section 2.08(e)
Seller Preamble
Sellers Preamble
Service Section 2.22(b)
Shares Introduction
Specified Representations Section 9.01
Transactions Introduction
Tax Section 2.19(a)(i)
Tax Returns Section 2.19(a)(ii)
Section 10.16. Schedules and Exhibits. Sellers are delivering to
Purchaser concurrent with the execution and delivery of this Agreement the
following Schedules referred to and incorporated by reference in this Agreement:
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Schedule Description
-------- -----------
Schedule 1.01 Appropriate Percent
Schedule 1.02(b) New Capital Lease Obligations
Schedule 2.02 Foreign Jurisdictions
Schedule 2.03 Subsidiaries
Schedule 2.05 Capitalization
Schedule 2.07 Material Adverse Changes
Schedule 2.08 Material Contracts
Schedule 2.09(b) Leased Property
Schedule 2.10 Personal Property
Schedule 2.11 Intellectual Property
Schedule 2.14 Warranty Claims
Schedule 2.15(a) Customers
Schedule 2.15(b) Suppliers
Schedule 2.16 Required Consents
Schedule 2.18 License and Permits
Schedule 2.19 Tax Matters
Schedule 2.20 Litigation
Schedule 2.21 Employees and Compensation
Schedule 2.24 Insurance
Schedule 2.25 Bank Accounts
Schedule 2.26 Affiliate Transactions
Schedule 6.06 Seller Guarantees
The following Exhibits are referred to and incorporated by reference in
this Agreement.
Exhibit Description
------- -----------
Exhibit 7.01(n) Opinion of Counsel to the
Company and the Sellers
Exhibit 7.02(i) Opinion of Counsel to the
Purchaser
[Signatures appear on the following page.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as a sealed instrument as of the date first above written.
Company:
--------
GEMINI PLASTIC SERVICES, INC.
By: /s/ Crugar Tuttle, President
----------------------------
Sellers:
--------
/s/ Robert Hayberg /s/ Carl Hunt
- --------------------------- ------------------------------
Robert Hayberg Carl Hunt
/s/ Monty Cochran /s/ Phillips Patton
- --------------------------- ------------------------------
Monty Cochran Phillips Patton
/s/ Robert Dehner /s/ Crugar Tuttle
- --------------------------- ------------------------------
Robert Dehner Crugar Tuttle
/s/ Gregory Cronkhite /s/ Wayne Moore
- --------------------------- ------------------------------
Gregory Cronkhite Wayne Moore
Purchaser:
----------
ANCHOR ADVANCED PRODUCTS, INC.
By: /s/ George Votis
--------------------------
CEO
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Schedule 1.01
-------------
Appropriate Percent
-------------------
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Exhibit 7.01(n)
---------------
[Matters to be covered by Legal Opinion
of Counsel to Sellers and the Company]
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Exhibit 7.02(i)
---------------
[Form of Opinion of Counsel to the Purchaser]
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Schedule 1.02(b)
Schedule of Assets Financed and Ordered
Since February 28, 1998
-----------------------
<PAGE>
Schedule 2.02
Foreign Jurisdictions
---------------------
<PAGE>
Schedule 2.03
Investments
-----------
<PAGE>
Schedule 2.05(a)
Capitalization
--------------
<PAGE>
Schedule 2.05(c)
<PAGE>
Schedule 2.05(d)
<PAGE>
Schedule 2.07
Material Changes
----------------
<PAGE>
Schedule 2.08(a)
Material Contracts
------------------
<PAGE>
Schedule 2.08(b)
<PAGE>
Schedule 2.08(c)
<PAGE>
Schedule 2.08(d)
<PAGE>
Schedule 2.08(e)
<PAGE>
Schedule 2.08(f)
<PAGE>
Schedule 2.08(g)
Contract Placing Material
Limitation on Company's Business
--------------------------------
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Schedule 2.08(h)
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Schedule 2.08(i)
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Schedule 2.08(j)
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Schedule 2.09(b)
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Schedule 2.10
Personal Property Equipment Leases,
Security Interests and encumbrances
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Schedule 2.11
Intellectual Property
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Schedule 2.14
Warranty Claims
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Schedule 2.15(a)
Customers and Suppliers
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Schedule 2.15(b)
Vendors
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Schedule 2.16
Required Consents
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Schedule 2.18
Licenses and Permits
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Schedule 2.19(b)
Tax Matters
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Schedule 2.20
Litigation
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Schedule 2.21
Employees and Compensation
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Schedule 2.24
Insurance
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Schedule 2.25
Bank Accounts
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Schedule 2.26
Affiliate Transactions
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Schedule 6.06
Guaranteed Obligations
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PURCHASE AND SALE AGREEMENT
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AGREEMENT made as of the 4th day of June, 1998 by and between Anchor
Advanced Products, Inc., a Delaware corporation ("Buyer") having an address at
1111 North Shore Drive, Suite N600, Knoxville, TN 37919, and Robert S. Hayberg
and Linda Hayberg, husband and wife, jointly and severally ("Seller") having an
address at c/o Reuben M. Schneider, Esq. Abrams Anton, P.A., 2021 Tyler Street,
Hollywood, FL 33022-9010.
W I T N E S S E T H:
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In consideration of the mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Buyer and Seller hereby agree as follows:
1. AGREEMENTS TO SELL AND PURCHASE; DESCRIPTION OF PROPERTY;
NOMINEE.
(a) Purchase and Sale. Seller agrees to convey to Buyer and Buyer
hereby agrees to purchase from Seller, for the price and upon the terms and
conditions set forth herein, the following:
(i) The land located in Davie, Broward County,
Florida described in EXHIBIT 1.1 attached hereto and made a part hereof, and all
easements and rights of way appurtenant to such land, and all of Seller's right,
title and interest in and to any alleys, strips and gores abutting or adjoining
such land and in and to any highways, streets, and ways abutting or adjoining
the Land (hereinafter, collectively, the "Land"). For title reference purposes,
see deed recorded with the Public Records of Broward County in Book 9433, Page
23;
(ii) all buildings, structures and other improvements
located on the Land (collectively, the "Improvements");
(iii) all fixtures, and all of Seller's right, title
and interest in and to all equipment and personal property of any kind, such
fixtures, equipment and personal property, located on or used in connection with
the Land or the Improvements (collectively, the "Personal Property"), including
without limitation, the fixtures, equipment and personal property listed on
EXHIBIT 1.2 attached hereto and made a part hereof;
(iv) all Leases (including any security deposits and
prepaid rents thereunder) relating to the Property or any portion thereof as
listed on EXHIBIT 1.3 attached hereto (the "Leases").
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The Land, Improvements and Personal Property are, collectively,
referred to herein as the "Property."
(b) Nominee. Seller acknowledges and agrees that Buyer shall have
the right to designate a nominee to take title to the Property by notice to
Seller given not later than the Closing Date (as defined below).
2. PURCHASE PRICE; ADJUSTMENTS.
(a) Purchase Price. The agreed purchase price for the Property (the
"Purchase Price") is THREE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($3,500,000.00), which Purchase Price shall be payable as follows:
(i) Approximately SEVEN HUNDRED THOUSAND AND NO\100
DOLLARS ($700,000.00) is to be paid at the time of delivery and recording of the
Deed (as hereinafter defined) in cash or by certified, cashier's, treasurer's or
bank check or checks or by wire transfer to an account designated by Seller,
which designation shall be made not less than 72 hours prior to the Closing Date
(as hereinafter defined);
(b) Existing Indebtedness. Approximately TWO MILLION EIGHT HUNDRED
THOUSAND AND NO\100 DOLLARS ($2,800,000.00) are to be paid at the time of the
delivery and recording of the Deed by Buyer's assumption of an outstanding
mortgage of the Property, with a total outstanding balance of principal and
interest and other amounts due thereon of no more than $2,800,000.00 (the
"Existing Indebtedness"), given to Life Insurance Company of Georgia (the
"Lender"), as evidenced by the specific loan documents described in EXHIBIT 4.2
(the "Loan Documents").
(c) Termination by Buyer. If Buyer exercises any of Buyer's options
to terminate this Agreement as provided herein, then all payments made to Seller
by Buyer hereunder shall be promptly refunded in full by Seller to Buyer, but in
no event later than ten (10) calendar days after such notice of termination is
given.
(d) Adjustments. The Purchase Price shall be adjusted to reflect the
following:
(i) Water and sewer use charges, charges for
electricity, gas and other utilities and operating expenses, value of fuel
stored on the Property at the price then charged by Seller's supplier, charges
under the Contracts and the Permits (as hereinafter defined), and real property
taxes with respect to the Property for the then current fiscal tax period, shall
be apportioned as of the Closing Date, and the net amount shall be added to or
deducted from the Purchase Price, as the case may be.
(ii) If, on the Closing Date, the amount of real
property taxes for the then current fiscal tax period is not known or is
estimated, the apportionment of real property taxes called for herein shall be
made on the basis of the real property taxes for the preceding fiscal tax
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period or estimate, respectively, and an appropriate reapportionment shall be
made as soon as the new rate and valuation can be ascertained for the then
current fiscal tax period for any increase or decrease in real estate taxes
which may occur after the Closing Date.
(iii) Each party shall pay its own attorney's fees
incurred in connection with the negotiation of this Agreement and consummation
of the transactions contemplated by this Agreement, except as otherwise
expressly provided herein. Seller shall pay the cost of all deed stamps or
transfer taxes assessed with respect to the sale of the Property (except for any
transfer taxes directly and solely attributable to Buyer's assumption of the
Existing Indebtedness, which shall be paid by Buyer); recording fees for
releases and other documents required to clear title or to comply with its
obligations hereunder; any assumption, yield maintenance, or other fees owed to
the Lender in connection with Buyer's assumption of the outstanding mortgage
encumbering the Property; the cost of the architect's or engineer's certificate;
and the cost of UCC searches with respect to the Property. Buyer shall pay for
recording costs of the Deed and any loan documents relating to Buyer's financing
for the Property.
(iv) If at any time following the making of any of the
adjustments to the Purchase Price, the amount thereof shall prove to be
incorrect, or it should be discovered that some adjustment which should have
been made was inadvertently omitted altogether, the party in whose favor the
error was made shall pay the sum necessary to correct such error to the other
party promptly following receipt of notice of such error from such other party.
The provisions of this Section 2(d) shall survive the delivery of the Deed or
the termination of this Agreement.
3. CLOSING; EXTENSIONS.
(a) Closing Date and Place. The time for the delivery of the Deed
and for the performance of the other terms and conditions of this Agreement (the
"Closing"), shall be 10:00 a.m. on July 15, 1998 (as the same may be extended
pursuant to the provisions hereof, the "Closing Date") at the offices of Abrams
Anton, P.A., 2021 Tyler Street, Hollywood, FL 33022-9010, or at such other
place or time as shall be mutually agreed upon by Buyer and Seller. It is agreed
that time is of the essence.
(b) Extension of Closing Date. Buyer shall have the right to extend
the Closing Date and each subsequent extended date of the Closing by written
notice to Seller given at least five (5) days in advance of the then applicable
Closing Date; however, no such extension may be made which will postpone the
Closing Date to a date subsequent to September 15, 1998.
4. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties of Seller. Seller warrants and
represents to, and covenants and agrees with, Buyer as of the date hereof (and
on the Closing Date shall reaffirm all such representations, covenants and
warranties as of that date) as follows:
(i) Seller is the sole owner of, and holds the entire
ownership interest in, the Property and all rights appurtenant thereto;
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(ii) Seller has the legal right, power and authority to
enter into this Agreement and to perform all of its obligations hereunder and
this Agreement constitutes the legal, valid and binding obligation of Seller,
enforceable in accordance with its terms. The execution by the Seller and
delivery of this Agreement, and the performance by Seller of its obligations
hereunder, have been duly authorized by all necessary action and will not
conflict with, or result in a breach of, any agreement or instrument to which
Seller is a party or by which it is bound, or, to the best of Seller's
knowledge, any license, permit, approval, privilege or agreement relating to any
or all of the Land, the Improvements, or the Personal Property, including,
without limitation, permanent Certificates of Occupancy from the local authority
having jurisdiction over the construction and occupancy of the Improvements (the
"Permits"), or any Governmental Regulation (as hereinafter defined), regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority;
(iii) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental agency or
commission is required for the due execution, delivery and performance of this
Agreement by Seller or for the validity or enforceability thereof against
Seller;
(iv) There are no uncured notices, suits, orders,
decrees or judgments relative to violations of, (A) any of the Permits or any
conditions thereof, (B) any easement, restrictive covenant or other matter of
record affecting the Property or any part thereof, (C) any laws, statutes,
ordinances, codes, regulations, rules, orders, or other requirements of any
local, state or federal authority or any other governmental entity or agency
having jurisdiction over the Property or any part thereof, including, without
limitation, any of the foregoing affecting zoning, subdivision, building,
health, traffic, environmental, hazardous waste or flood control matters (all of
the foregoing items in (C), collectively, "Governmental Regulations") and, to
the best of Seller's knowledge, there are no violations of any of the foregoing
matters listed in (A), (B) and (C) affecting the Property.
(v) There are no other suits, actions or proceedings
pending or, to the best of Seller's knowledge, threatened against or affecting
the Property, the Permits or any of the transactions provided for herein before
any court or administrative agency or officer, and Seller is not in default with
respect to any judgment, order, writ, injunction, rule or regulation of any
court or governmental agency or office to which Seller is subject in any way
affecting the Property, the Permits or any of the transactions provided for
herein.
(vi) All maintenance and service contracts relating to
the Property or any portion thereof (the "Contracts") and, to the best of
Seller's knowledge, all Permits are in full force and effect as of the date
hereof.
(vii) There are no presently pending or, to the best of
Seller's knowledge, threatened with respect to the Property (A) any special
assessments, or (B) any condemnation or eminent domain proceedings.
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(viii) The Property has available to its lot line,
without the need for easements over the land of others, public water, sewer and
drainage facilities and electricity, gas, cable television and telephone
utilities.
(ix) The Property is an independent unit which does not
now rely, and on the date of the Closing Date will not rely, on any facilities
(other than the facilities of public utility and water companies) located on any
property not included in the Land (A) to fulfill any zoning, building code or
other municipal requirement or any other Governmental Regulation, or (B) for
structural support or the furnishing to the Improvements of any essential
building systems.
(x) The Property has adequate, direct, indefeasible
legal and practical access of record for ingress from and egress to S.W. 71st
Terrace, a public way.
(xi) To the best of Seller's knowledge, the HVAC,
mechanical, electrical and other building systems serving the Property, as well
as all structural aspects of the Property, are in good working order and free
from material defects.
(xii) The Property does not constitute all or
substantially all of the assets of Seller.
(xiii) Seller has never generated, stored, handled or
disposed of any hazardous substance, hazardous waste, hazardous materials or oil
(as any of such terms are defined under applicable Governmental Regulations),
and, to the best of Seller's knowledge, there has been no release of any such
hazardous substance, hazardous waste, hazardous materials or oil into the
environment from the Property, or in, on or under the Property.
(xiv) Seller is familiar with the provisions of Sections
897 and 1445 of the Internal Revenue Code (the "Code"), and Seller is not a
"foreign person" as that term is defined in Section 1445(f)(3) of the Code.
(xv) There are no Leases except as expressly disclosed
in EXHIBIT 1.3 attached hereto. The information concerning the Leases set forth
in EXHIBIT 4.1 attached hereto (the "Rent Schedule") is accurate and complete as
of the date hereof, and there are no leases, subleases, licenses or other rental
agreements or occupancy agreements (written or verbal) which grant any
possessory interest in and to any space situated on or in the Property or that
otherwise give rights with regard to use of the Property other than those set
forth on the Rent Schedule. Except as otherwise specifically set forth in the
Rent Schedule or elsewhere in this Agreement:
(a) all of the Leases are in full force and
effect and none of them have been modified, amended or extended;
(b) no renewal or extension options have
been granted to tenants other than as now set forth in the Leases;
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(c) no tenant has an option to purchase the
Property, or any part thereof;
(d) the rents set forth on the Rent Schedule
are being collected on a current basis and there are no arrearages in excess of
one month;
(e) no tenant is entitled to rental
concessions or abatements for any period subsequent to Closing Date;
(f) Seller has not sent written notice to
any tenant of the Property claiming that such tenant is in default, which
default remains uncured;
(g) no action or proceeding instituted
against Seller or any predecessor in title of Seller by any tenant of the
Property is presently pending in any court, except with respect to claims
involving personal injury or property damage which are covered by insurance;
(h) there are no security deposits or
prepaid rent in the nature of a security deposit other than those set forth in
the Rent Schedule;
(i) no rent has been paid more than 30 days
in advance;
(j) no uncompleted work with respect to
premises demised under any of the Leases to be performed by the landlord
thereunder will remain incomplete after the Closing Date; and
(k) no brokerage commissions are due or
payable as a result of the Leases or any renewal or extension thereof.
(xvi) The amount necessary to discharge all outstanding
mortgages and other monetary liens currently affecting the Property does not
exceed the net amount of the Purchase Price to be received by Seller at the
Closing, after deduction (if any) for the adjustments described in Section 2(d)
above.
(xvii) The loan documents described on EXHIBIT 4.2 (the
"Loan Documents") constitute all of the loan documents (i) relating in any
manner to Seller's Existing Indebtedness to Lender and (ii) relating in any
manner to the Property. The outstanding principal balance of the Existing
Indebtedness as of the date hereof is approximately $2,800,000.00. The Loan
Documents correctly, accurately and completely state the terms of the Existing
Indebtedness. Except as disclosed in EXHIBIT 4.2, the Loan Documents contain the
entire agreement among Seller, any guarantors, and Lender. Seller is not, and to
Seller's knowledge, neither any guarantor nor Lender is, in default in the
performance of or under any of the Loan Documents except as disclosed in EXHIBIT
4.2. Lender is not entitled to any payments, offsets, or remuneration of any
kind except as specifically and expressly set forth in the Loan Documents.
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As of the date of this Agreement and as of the Closing Date, Seller has complied
with all requirements of the Loan Documents.
(b) Representations and Warranties of Buyer. Buyer warrants and
represents to, and covenants and agrees with, Seller as follows:
(i) Buyer has the legal right, power and authority to
enter into this Agreement and to perform all of its obligations hereunder, and
the execution and delivery of this Agreement and the performance by Buyer of its
obligations hereunder, have been or will be duly authorized by all necessary
corporate action at the Closing Date; and this Agreement and Buyer's performance
hereunder will not conflict with, or result in a breach of, any of the terms,
covenants and provisions of the Articles of Organization or By-Laws of Buyer, as
same may have been amended or, to the best of Buyer's knowledge, any
Governmental Regulation or order, judgment, writ, injunction or decree of any
court or any agreement or instrument to which Buyer is a party or by which it is
bound.
(ii) The officer signing this Agreement on behalf of
Buyer is duly authorized to execute the same on behalf of Buyer and Buyer shall
provide a corporate resolution to such effect at the Closing.
(c) Liability for Warranties and Representations. Seller agrees to
indemnify and hold Buyer harmless from and against any and all claims, losses,
liabilities, damages, expenses and fees, including without limitation,
reasonable attorneys' fees and expenses, incurred by Buyer as the result of the
failure of any of Seller's material warranties and representations contained in
this Article 4 or elsewhere in this Agreement. Conversely, Buyer agrees to
indemnify and hold Seller harmless from and against any and all claims, losses,
liabilities, damages, expenses and fees, including without limitation,
reasonable attorneys' fees and expenses, incurred by Seller as the result of the
material failure of any of Buyer's warranties and representations contained in
this Article 4 or elsewhere in this Agreement. The warranties and
representations contained in this Article 4 or elsewhere in this Agreement (as
the same shall be restated in the certificate described in Section 6(a)(ii)(M)
herein) shall survive for one (1) year following the date of the delivery of the
Deed hereunder or the termination of this Agreement; provided, however, that
there shall be no limitation on the survival of such warranties and
representations which Seller knew to be false at the time so made or restated,
or at any time on or before the delivery of the Deed hereunder or the
termination of this Agreement, nor shall there be any limitation on Buyer's
right to bring an action with respect to the same.
5. RIGHTS AND OBLIGATIONS OF THE PARTIES PRIOR TO CLOSING;
CONDITIONS TO CLOSING.
(a) Seller's Covenants. Seller covenants that between the date of
this Agreement and the Closing:
(i) Buyer and its representatives, contractors,
architects and engineers, and each
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of their respective officers, directors, agents, employees, representatives, and
designees shall have access to the Property at any time and from time to time,
at Buyer's sole cost and expense: (A) to show the Property to third parties
(including, without limitation, contractors, engineers, architects, attorneys,
insurers, banks and other lenders or investors, and prospective tenants,
occupants or buyers) and (B) to perform any and all tests, borings, inspections,
and measurements which are contemplated hereby or which Buyer deems reasonably
necessary or appropriate hereunder, including without limitation, for purposes
of locating all utility conduits serving the Property, making soil borings,
performing soil compaction tests, performing mechanical or structural
inspections, conducting any of the other tests described in Section 5(b) below,
and making such surveys and other topographical and engineering studies, and
other tests, surveys and studies as Buyer or its lender may deem necessary or
appropriate. All entries onto the Property pursuant to this Section 5(a) shall
only occur after reasonable notice to Seller, and shall be conducted at
reasonable times, and so as not to cause unreasonable interference with the
business activities of any tenants occupying the Property. Buyer agrees to
indemnify and hold harmless Seller from any physical damage to property or
physical injury or death to any person, and from any reasonable expenses
(including attorneys' fees) associated with any claims arising from any such
damage, injury or death caused by Buyer or any such person while on the Property
pursuant to this Section 5(a).
(ii) Buyer may discuss the Property with any federal,
county, state or local officials or authorities concerning variances, permits,
certificates, consents, approvals, the Permits and other Governmental
Regulations for the use, operation, leasing and/or sale of the Property for such
uses(s) as Buyer deems appropriate.
(iii) Promptly upon execution hereof, Seller will
furnish to Buyer for Buyer's review and approval all information in its
possession, and complete and accurate recorded documentation, concerning
ownership and condition of the Property (including without limitation, any
available plans and surveys, engineering reports, condominium documents, title
documents and abstracts, title insurance policies, leases, tenant records and
service and management contracts). Upon termination of this Agreement as
provided herein, and provided that such termination is not a result of Seller's
default hereunder, Buyer will return to Seller all such information obtained
from Seller.
(iv) Seller shall not permit occupancy of, or enter into
any new lease for, space in or on the Property, or any portion thereof, unless
Buyer has approved such occupancy or lease in writing.
(v) Seller shall not modify or amend any Contract or
enter into any new service, maintenance or management contract unless the same
is terminable without penalty by the then owner of the Property upon not more
than 30 days' notice.
(vi) No Personal Property included in this Agreement
shall be removed from any of the Improvements, unless the same is replaced with
similar items of at least equal quality prior to the Closing.
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(vii) Seller shall prosecute, and shall not withdraw,
settle or otherwise compromise, any protest or reduction proceeding affecting
real estate taxes assessed against the Property for any fiscal period in which
the Closing is to occur or any subsequent fiscal period without the prior
written consent of Buyer. Real estate tax refunds and credits received after the
Closing Date which are attributable to the fiscal tax year during which the
Closing Date occurs shall be apportioned between Seller and Buyer, after
deducting the expenses of collection thereof, which obligation shall survive the
Closing.
(viii) So long as this Agreement is in effect, Seller
shall maintain fire and extended coverage and liability insurance coverage on
the Property in the same amount as set forth in the Insurance Certificate
attached hereto as EXHIBIT 5.1. Risk of loss shall remain with Seller prior to
the Closing Date.
(ix) So long as this Agreement is in effect, Seller
shall not execute any new mortgage of the Property or modify the existing
mortgage(s) on the Property, or otherwise encumber the Property in an amount
which, together with the amount of all other mortgages and monetary liens, will
exceed the net amount of the Purchase Price to be received by Seller at the
Closing, after deduction (if any) for the adjustments described in Section 2(c)
above and payment of the broker's commission, or create any other new
encumbrance or restriction affecting the Property.
(b) Certain Conditions to Buyer's Obligations. In addition to the
other conditions to be satisfied hereunder, Buyer's obligations hereunder are
expressly contingent upon fulfillment of all of the following terms and
conditions:
(i) Buyer may make or cause to be made all tests,
borings and inspections it deems necessary to determine if there are any
"hazardous wastes", "hazardous substances", "oil" or "hazardous materials" (as
all those terms are defined under applicable Governmental Regulations), or any
medical wastes, radioactive materials, lead, asbestos, urea formaldehyde, or
radon, in, on, about, under or in the area of the Property, and shall be
satisfied in its sole discretion with the results of all such tests, borings and
inspections.
(ii) Buyer may make or cause to be made a survey of the
Property prior to the Closing Date, and such survey shall disclose no matters
affecting the Property which are inconsistent with the other provisions of this
Agreement.
(iii) Buyer shall have obtained a commitment from a
title insurance company selected by Buyer pursuant to which such company agrees
to insure title to the Property, at normal premium rates, in an ALTA form, which
commitment shall delete the printed exceptions for mechanics' and materialmans'
liens, parties in possession (except for tenants having possession pursuant to
the Leases set forth in EXHIBIT 1.3) and surveys, shall include a so-called
Comprehensive Endorsement, and shall (A) affirmatively insure that there will be
no violation of any applicable restrictions pertaining to the Property if used,
operated, leased and/or sold as contemplated herein, (B) insure that the
Property has legal and actual access to public
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roadways, (C) provide that all such affirmative coverages will be available to
future purchasers and their mortgagees at normal premium rates, and (D) provide
such other affirmative coverages as Buyer may reasonably require.
(iv) Buyer shall have obtained surveys, engineering
reports, percolation tests, commitment letters and other evidence satisfactory
to Buyer that: (A) the Property contains or is serviced by adequate water
supplies; (B) adequate utilities are available at the site; and (C) the HVAC,
mechanical, electrical and other building systems serving the Property, as well
as all structural aspects of the Property, are all satisfactory in Buyer's sole
discretion.
(v) The parties thereto shall have each fully performed
all of their respective obligations pursuant to that certain Stock Purchase
Agreement dated as of June 4, 1998 by and among Buyer, as purchaser, and
Gemini Plastics Services, Inc., Robert S. Hayberg, and others, as sellers.
If any of the foregoing conditions are not fully
satisfied in a manner which is acceptable to Buyer in its sole discretion on or
before the original or any extended time for Closing, Buyer shall notify Seller
thereof prior to the Closing Date, which notice shall specify which condition(s)
has (have) not been satisfied. In such event, the parties shall have the
respective rights, obligations and options specified in Section 7(a)(i) below.
6. CLOSING OBLIGATIONS.
(a) Seller's Closing Obligations. On the Closing Date, Seller shall:
(i) Deliver to Buyer full possession of the Property:
(A) in the same condition as it is as of the date hereof, reasonable use and
wear thereof excepted, (B) in compliance with all building and zoning laws, and
any other encumbrances expressly permitted by this Agreement and (C) free and
clear of all tenants and occupants, except for tenants set forth on the Rent
Schedule. Buyer shall be entitled to an inspection of the Property prior to the
Closing Date in order to determine whether the condition thereof complies with
the terms of this Section.
(ii) Deliver to Buyer, in form and substance
satisfactory to Buyer, the following:
(A) a good and sufficient special warranty
deed (the "Deed") conveying good and clear record and marketable title to the
Land and Improvements insurable as provided in Section 5(b)(iv) above, which
shall convey title free from all liens, encumbrances and encroachments except:
(I) provisions of building and zoning laws existing as of the date hereof; (II)
such real property taxes for the then current fiscal tax period as are not yet
due and payable on the Closing Date; (III) such liens for betterment charges as
may be assessed on the Property after the Closing Date; and (IV) easements,
restrictions and rights of way of record, if any, which do not materially
interfere (in Buyer's reasonable discretion) with the use, operation, leasing
and/or sale of the Property for the Intended Use.
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(B) A Warranty Bill of Sale transferring
Seller's entire interest in the Personal Property.
(C) An Assignment of the Permits (provided,
however, in the absence of an express assignment, delivery of the Deed will be
deemed to constitute the assignment of all of the Permits to Buyer).
(D) Copies, and where available originals,
of all of the Permits, current as of the Closing Date;
(E) Evidence acceptable to Buyer from the
local water and sewer authority and any other entity providing utility service
to the Property showing that all charges for water and sewer service and such
other utilities have been paid through a date not more than five (5) calendar
days prior to the Closing Date.
(F) An Assignment of the Leases and
Contracts, including an indemnity from Seller against any loss, cost or damage
with respect to the foregoing arising out of facts or circumstances occurring
prior to the Closing.
(G) Executed originals of all Leases and
Contracts (or photocopies of the same, together with appropriate
affidavits/certificates regarding authenticity, if originals are unavailable
after a diligent search).
(H) Tenant Estoppel Letters. Estoppel
letters dated not more than five (5) days prior to the Closing addressed to
Buyer from all tenants under the Leases in the form attached hereto as EXHIBIT
6.1, or an affidavit executed by Seller regarding the Leases which affidavit is
substantially in the form attached hereto as EXHIBIT 6.1.
(I) Sufficient original letters, executed by
Seller, advising the tenants under the Leases of the sale of the Property to
Buyer and directing that all rents and other payments thereafter becoming due
under the Leases be sent to Buyer or as Buyer may direct.
(J) Original copies (or photocopies of the
same if the originals are not available) of all site plans, surveys, soil and
substrata studies, architectural drawings (including, without limitation, final
"as built" architectural and engineering drawings), plans and specifications,
engineering plans and studies, floor plans, landscape plans and other plans or
studies of any kind that relate to the Property.
(K) Affidavits to Buyer's title insurer as
to parties in possession or with a right to possession of, and mechanic's liens
with respect to, the Property, which affidavits shall be sufficient to have the
normal printed exceptions with respect to such matters deleted from Buyer's and
Buyer's lender's title insurance policy(ies).
(L) An Affidavit certifying that Seller is
not a "foreign person" as of the Closing Date, as provided in Section 4(a)(xv)
hereof.
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(M) A certificate by Seller to the effect
that all of the representations and warranties set forth in this Agreement
remain true and correct as of the Closing Date except with respect to the
Contracts to the extent the same may have changed in accordance with the terms
and conditions of this Agreement.
(N) A 1099-B form.
(O) A W-9 form stating that no backup
withholding is necessary to disburse Seller's share, if any, of any interest due
to Seller on any amounts held hereunder.
(P) All keys and key cards to the Property,
appropriately tagged for identification.
(Q) All other documents, certificates and
instruments deemed reasonably necessary or appropriate by Buyer's counsel to
effectuate the transactions which are the subject of this Agreement.
(R) Lender's Estoppel Letter. An estoppel
letter dated not more than 30 days prior to the Closing Date addressed to Buyer
from Lender in the form attached hereto as EXHIBIT 6.2.; provided, however, that
Seller shall not be deemed in default hereunder so long as Seller shall have
used reasonable efforts to obtain such Lender's Estoppel Letter from Lender.
(b) Buyer's Closing Obligations. At the Closing, Buyer shall:
(i) Deliver to Seller, in immediately available funds,
the Purchase Price, as adjusted for apportionments under Section 2.
(ii) Deliver any other documents expressly required by
this Agreement to be delivered by Buyer.
7. FAILURE OR INABILITY TO PERFORM; DEFAULTS; REMEDIES.
(a) Seller's Default. (i) If Seller shall be unable, on the Closing
Date, to give title or make conveyance or deliver possession of the Property as
required by this Agreement or to satisfy any of the terms and conditions
precedent to Closing set forth herein, or if the Property does not then conform
to the provisions hereof, or if any of Seller's warranties and representations
contained herein are not correct as of the Closing Date, the time for
performance hereunder shall be extended for such period, not to exceed ninety
(90) days, as shall be reasonably specified by Buyer, and Seller shall use
diligent efforts to give title or make conveyance or deliver possession as
provided herein, or to satisfy such terms and conditions, to make the Property
conform to the provisions hereof, or to cure the inaccuracy in such warranty
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or representation, as the case may be. If, at the expiration of such extended
time for performance, despite having used such diligent efforts Seller shall
fail to convey title, or deliver possession, or make the Property conform, or if
any of Seller's warranties and representations contained herein are not correct
as of such extended time, as the case may be, then Buyer shall have the option,
at Buyer's sole discretion: (A) to terminate this Agreement by notice given to
Seller, whereupon all sums paid by Buyer hereunder shall be promptly refunded by
Buyer and all obligations of the parties hereto shall cease and this Agreement
shall be void and without recourse to the parties hereto, excluding, however,
those provisions hereof which are expressly provided herein to survive
termination of the Agreement, or (B) to accept title to the Property as provided
in Section 7(a)(ii) below. In the event that Seller seeks relief as a debtor
under any applicable law, including without limitation the federal bankruptcy
code, or upon the involuntary commencement of any such proceeding, Buyer shall
have the right of possession of the Property pending the Closing and shall be
entitled to any and all rights pursuant to 11 U.S.C. ss.365 (i) and (ii). Buyer
shall have the right to obtain specific performance of this Agreement, as well
as the benefit of any other rights or remedies provided herein or by applicable
law, in the event of any default hereunder by Seller (i.e., Seller's failure to
perform its obligations hereunder where such failure is not excused by any of
the express terms of this Agreement).
(ii) Buyer shall have the election, at the original or
at any extended time for Closing, to accept such title to and possession of the
Property as Seller can deliver in its then condition and to thereupon pay the
Purchase Price without any deductions, except such amount necessary to remove
all mortgages, liens or encumbrances which secure the payment of money and such
adjustments computed in accordance with Section 2(d) above, in which case Seller
shall convey such title. Notwithstanding the foregoing, however, if the Property
has been damaged by fire or other casualty or by eminent domain and is not fully
repaired at the time of the Closing, Buyer shall, at Buyer's sole option,
either: (A) receive an assignment of any insurance proceeds or condemnation
awards recovered or recoverable by Seller arising from fire or other casualty
to, or condemnation of, the Property which have not been applied by Seller to
restore the Property, or (B) receive a deduction from the Purchase Price in the
amount of such proceeds or award and any applicable deductible, and in either
case shall receive an assignment of Seller's contract rights against any
contractor engaged by Seller to repair the Improvements.
(b) Buyer's Default. If Buyer shall fail to fulfill its agreements
herein on the Closing Date, Buyer shall pay to Seller as liquidated damages the
amount of TEN THOUSAND AND NO\100 DOLLARS ($10,000.00), which said sum, in view
of the difficulty of estimating such damages with exactness, is hereby
expressed, fixed, computed, determined, and agreed on as the sole damages that
will be suffered by the Seller by reason of such default; and it is understood
and agreed by Buyer and Seller that the liquidated damages hereinbefore
mentioned are in lieu of the actual damages arising from such breach of this
Agreement. Buyer and Seller agree that (i) in no event shall Buyer be liable
for, nor shall Seller make any claim for, consequential, incidental or special
damages or loss of profits or revenues resulting from the failure of Buyer to
perform as provided in this Agreement, and (ii) in no event shall Seller make
any claim for specific performance of this Agreement, or any other equitable
remedy.
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8. MISCELLANEOUS.
(a) Tax Identification Number. Seller warrants and represents that
Seller's federal tax identification number is ###-##-####, and Buyer warrants
and represents that Buyer's federal tax identification number is _____________.
Seller and Buyer each acknowledge that the foregoing information will be relied
upon in reporting the transactions contemplated hereby to appropriate
governmental authorities.
(b) Agreement Not an Offer. The submission of any draft of this
Agreement or any portion thereof does not constitute an offer to buy the
Property, it being acknowledged and agreed that neither Buyer nor Seller shall
be legally obligated with respect to the purchase or sale of the Property unless
and until this Agreement has been executed by both Buyer and Seller and a fully
executed copy has been delivered to each of Buyer and Seller.
(c) Exhibits. The following Exhibits attached hereto are
incorporated herein by reference and made a part hereof:
Exhibits
--------
Exhibit 1.1 Legal Description of the Land
Exhibit 1.2 Personal Property
Exhibit 1.3 Leases
Exhibit 4.1 Rent Schedule
Exhibit 4.2 Loan Documents
Exhibit 5.1 Insurance Certificate
Exhibit 6.1 Form of Tenant Estoppel
Exhibit 6.2 Form of Lender Estoppel
(d) Notices. All notices or communications required or permitted
hereunder shall be in writing and delivered by hand or mailed by certified mail,
return receipt requested, postage and registration or certification charges
prepaid, or by nationally recognized overnight courier service to the party
entitled thereto as follows:
If to Seller:
Reuben M. Schneider, Esq.
Abrams Anton, P.A.
2021 Tyler Street
Hollywood, FL 33022-9010
If to Buyer:
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Anchor Advanced Products, Inc.,
1111 North Shore Drive, Suite N600
Knoxville, TN 37919
Attention: Charles B. Schiele
and:
John R. Walkey, Esq.
Choate, Hall & Stewart
Exchange Place, 53 State Street
Boston, Massachusetts 02109
or such other party(ies) or address(es) as either party shall specify by written
notice to the other from time to time. Any such notice or communication shall be
deemed to have been given as of the date of its receipt or delivery.
(e) Broker. Each of Buyer and Seller hereby represents, covenants
and warrants to the other that the party so representing has dealt with no
broker or other person entitled to a commission in connection with the
negotiation or execution of this Agreement or the consummation of the
transactions contemplated hereby.
(f) Entire Agreement; Rules of Construction. This Agreement may be
executed in multiple counterparts; is to be construed as a Florida contract; is
to take effect as a sealed instrument; sets forth the entire agreement between
the parties; merges all prior and contemporaneous agreements, understandings,
warranties, or representations; shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns; and may be
canceled, modified or amended only by a written instrument executed by both
Seller and Buyer. The captions and section headings are used only as a matter of
convenience and are not to be considered a part of this Agreement or to be used
in determining the intent of the parties.
(h) Further Assurances. Upon Buyer's request, Seller agrees to
execute and deliver to Buyer such additional instruments, certificates and
documents as Buyer may reasonably require, whether or not after the Closing
Date, in order to provide Buyer with the rights and benefits to which Buyer is
entitled under this Agreement.
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused it to be executed by their respective duly authorized representatives, as
an instrument under seal as of the day and year first above written.
Witness:
BUYER:
ANCHOR ADVANCED PRODUCTS, INC.
By: /s/ George Votis
- ----------------------------- --------------------------
Name: George Votis
Title: CEO
SELLER:
/s/ Reuben M. Schneider /s/ Robert S. Hayberg
- ----------------------------- ------------------------------
Robert S. Hayberg
/s/ Linda Hayberg
- ----------------------------- ------------------------------
Linda Hayberg
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Exhibits
- --------
Exhibit 1.1 Legal Description of the Land
Exhibit 1.2 Personal Property
Exhibit 1.3 Leases
Exhibit 4.1 Rent Schedule
Exhibit 4.2 Loan Documents
Exhibit 5.1 Insurance Certificate
Exhibit 6.1 Form of Tenant Estoppel
Exhibit 6.2 Form of Lender Estoppel
17
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EXHIBIT 1.1
-----------
[Legal description of the Land]
18
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EXHIBIT 1.2
-----------
[Description of Personal Property]
19
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EXHIBIT 1.3
-----------
[Leases]
20
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EXHIBIT 4.1
-----------
RENT SCHEDULE
21
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EXHIBIT 4.2
-----------
[Loan Documents]
22
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EXHIBIT 5.1
-----------
[Insurance Certificate]
23
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EXHIBIT 6.1
-----------
TENANT ESTOPPEL CERTIFICATE
24
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EXHIBIT 6.2
-----------
LENDER ESTOPPEL CERTIFICATE
25
