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STOCK SALE AND PURCHASE AGREEMENT
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PARTIES
THE BETHLEHEM CORPORATION
AND
BERGEN COVE REALTY INC.
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DATE
SEPTEMBER 29, 2000
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TABLE OF CONTENTS
SCHEDULE OF EXHIBITS...........................................................1
BACKGROUND.....................................................................2
TERMS AND CONDITIONS...........................................................2
1. INCORPORATION OF BACKGROUND; STATEMENT OF INTENTION TO BE LEGALLY BOUND....2
2. PURCHASE AND SALE OF SHARES................................................3
3. PURCHASE PRICE.............................................................3
4. CLOSING AND CLOSING DATE...................................................4
5. SELLER'S TITLE TO STOCK ...................................................4
6. DULY ORGANIZED CORPORATION.................................................4
7. QUALIFICATION TO DO BUSINESS...............................................4
8. INTERCORPORATE RELATIONS...................................................4
9. CAPITALIZATION.............................................................4
10. INDEBTEDNESS...............................................................5
11. STOCK RIGHTS...............................................................5
12. FINANCIAL STATEMENTS ......................................................5
13. DISCLOSURE OF DEBTS AND LIABILITIES .......................................6
14. PRESENT STATUS.............................................................6
15. TAX RETURNS................................................................6
16. TAX DELINQUENCIES AND AUDITS...............................................7
17. PAYMENT OF PRIOR DEFICIENCY................................................7
18. LAWSUITS AND PROCEEDINGS...................................................7
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19. COMPLIANCE WITH LAW AND INSTRUMENTS .......................................7
20. TITLE TO FIXED ASSETS .....................................................8
21. CONDITION OF PROPERTIES AND ASSETS.........................................8
22. PATENTS AND TRADEMARKS.....................................................9
23. CONTRACTS .................................................................9
24. COMPENSATION OF OFFICERS AND OTHERS.......................................10
25. INVENTORIES...............................................................10
26. RECORDS ..................................................................10
27. BROKER'S FEES.............................................................10
28. ACCOUNTS RECEIVABLE.......................................................11
29. PURCHASE COMMITMENTS AND OUTSTANDING BIDS.................................11
30. INSURANCE POLICIES........................................................11
31. OPERATIONS................................................................1
32. BUYER'S RIGHT OF EXAMINATION .............................................11
33. COMPLIANCE ...............................................................12
34. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS ..............................12
a. ..............................................................12
b. ..............................................................12
c. ..............................................................12
d. ..............................................................13
35. RESIGNATION OF DIRECTORS AND OFFICERS ....................................3
36. OPINION OF SELLER'S COUNSEL...............................................13
a. ..............................................................13
b. ..............................................................13
c. ..............................................................14
d. ..............................................................14
e. ..............................................................14
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f. ..............................................................14
g. ..............................................................15
37. COVENANT NOT TO COMPETE...................................................15
38. INDEMNIFICATION...........................................................15
a. ..............................................................15
b. ..............................................................15
c. ..............................................................16
d. ..............................................................16
e. ..............................................................16
f. ..............................................................16
g. ..............................................................16
h. ..............................................................16
39. RECORDS OF THE CORPORATION................................................17
40. EXPENSES..................................................................17
41. AMENDMENT AND WAIVER......................................................18
42. ASSIGNMENT ...............................................................18
43. NOTICES...................................................................18
44. HEADINGS..................................................................19
45. ASSUMPTION OF PENSION PLAN OBLIGATIONS....................................19
46. COUNTERPART EXECUTION.....................................................20
47. PARTIES IN INTEREST ......................................................20
48. INTEGRATED CONTRACT.......................................................20
49. CHOICE OF LAW.............................................................20
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SCHEDULE OF EXHIBITS
EXHIBIT DESCRIPTION
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"A" Schedule Of Corporation's Long Term and Current Liabilities
"B1" and "B2" Balance Sheet and Income Statements as of 5/31/00 and 8/31/00
"C" List of Corporation's Fixed Assets
"D" Material Contracts of the Corporation
"E" Inventories
"F" List Of Corporation's Accounts Receivables
"G" List Of Policies Of Insurance of the Corporation
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This Stock Sale and Purchase Agreement (hereafter "Agreement") is made
and entered into this 29th day of September 2000, by and between The Bethlehem
Corporation, a Pennsylvania corporation having a principal place at 25th and
Lennox Streets, Easton, Northampton County, Pennsylvania 18045 (hereafter
"Seller"), and Bergen Cove Realty Inc., and assigns, maintaining a place of
business at 18 East 50th St., New York, New York 10022 (hereafter "Buyer").
BACKGROUND
Seller is the owner of all the issued and outstanding shares of common
stock of a corporation known as Bethlehem Advanced Materials Corporation, being
a Pennsylvania corporation authorized to transact business in Pennsylvania, and
also maintaining offices in Knoxville, Tennessee (hereafter "Corporation").
Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, all of the issued and outstanding shares of common stock of Corporation,
on the terms and conditions contained in this Agreement.
TERMS AND CONDITIONS
1. INCORPORATION OF BACKGROUND; STATEMENT OF INTENTION TO BE LEGALLY
BOUND - The parties acknowledge and agree that the statements contained in the
"Background" section set forth above are true and accurate, and they are
incorporated into and made a part of this Agreement.
Seller and Buyer further agree that each is entering into this
Agreement intending to be legally bound hereby, with the mutual consideration
being as stated herein.
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2. PURCHASE AND SALE OF SHARES - Subject to the terms and conditions of
this Agreement, Seller agrees to sell, transfer and assign to Buyer, and Buyer
agrees to purchase, at the closing as defined in this Agreement, all of the
issued and outstanding shares of common stock of the Corporation. At the
closing, Seller shall deliver to Buyer a certificate or certificates evidencing
that common stock, in a form ready for transfer and duly endorsed to Buyer. At
the closing, and from time to time after the closing, Seller shall execute and
deliver other documents and instruments, and take other actions, as Buyer may
reasonably request, in order more fully to vest in Buyer all right, title and
interest in and to the Corporation's common stock, and every other right, title,
interest, claim, or demand of any kind that Seller may have in, to, or on any of
the properties, assets, or business of the Corporation.
3. PURCHASE PRICE - The total purchase price shall be the Seller's term
loan balance with Bank of America N.A. on the closing date and $1,500,000 to be
paid at settlement/closing. Buyer's obligations are conditioned on the
assumption of debt where as part of purchase price Buyer agrees to assume the
balance of Seller's term loan with Bank of America who must agree and consent to
permit the existing indebtedness to remain with BAM for a minimum of one year
from the closing hereunder. If for any reason BAM's existing indebtedness with
Bank of America must be curtailed, paid off or in Buyer's sole opinion changed
in any material manner which negatively impacts or erodes BAM's value or Buyer's
return on invested capital, Buyer may in its sole discretion cancel this
Agreement without any penalty or further obligation due to Seller. All remaining
proceeds beyond the indebtedness to Bank of America as of the date of closing
will be paid to Seller at the closing.
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4. CLOSING AND CLOSING DATE - Settlement/closing of this transaction
shall take place on or before 5:00 p.m. on November 30, 2000. The closing shall
be held at Seller's offices at 25th and Lennox Streets, Easton, Pennsylvania,
unless another date, time and/or place is agreed upon by writing between the
parties.
5. SELLER'S TITLE TO STOCK - Seller represents and warrants that Seller
has good, absolute, and marketable title to the Corporation's common stock, free
and clear of all liens, claims, encumbrances, and restrictions of every kind and
Seller has the complete and unrestricted right, power, and authority to sell,
transfer, and assign the Corporation's common stock pursuant to this Agreement.
6. DULY ORGANIZED CORPORATION - Seller represents and warrants that the
Corporation is a duly organized and validly existing Pennsylvania corporation in
good standing, with all requisite power and authority to carry on its business
as currently conducted.
7. QUALIFICATION TO DO BUSINESS - Seller represents and warrants that
the Corporation is duly qualified as a foreign corporation in good standing in
the state of Tennessee, where the Corporation conducts its business activities
and maintains its property.
8. INTERCORPORATE RELATIONS - Seller represents and warrants that the
Corporation has no subsidiaries and has no direct or indirect equity interest in
any other firm, corporation or business enterprise.
9. CAPITALIZATION - Seller represents and warrants that the Corporation
is authorized to issue 10,000 shares of common stock, 1,000 of which are duly
and validly issued and outstanding, and the Corporation has no authority to
issue any other common stock or other security.
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10. INDEBTEDNESS - Seller represents and warrants that Seller has
delivered to Buyer true copies of all instruments relating to the Corporation's
long-term and current liabilities, and the Corporation is not in any default or
violation of any provision of its outstanding long-term or current liabilities.
Attached hereto as Exhibit "A" and incorporated in by reference in a true and
correct copy of the schedule of debt of the Corporation which Seller has
provided to Buyer, and Buyer acknowledges being aware of all of those
obligations, and the terms thereof.
11. STOCK RIGHTS - Seller represents and warrants that there are no
outstanding options, contracts, commitments, warranties, agreements, or other
rights of any character affecting or relating in any manner to the issuance of
the Corporation's common stock or other securities, or entitling anyone to
acquire the Corporation's common stock or other securities.
12. FINANCIAL STATEMENTS - Seller has furnished Buyer with balance
sheets of the Corporation as of May 31, 2000 and August 31, 2000 and the related
statement of income for the year ended May 31, 2000 and the quarter ended August
31,2000 attached hereto as Exhibits "B1"and "B2" respectively. Seller warrants
and represents that these financial statements are in accordance with the books
of the Corporation at such dates and the result of its operations for the
periods specified, were prepared in accordance with generally accepted
accounting principles applied on a basis consistent with prior accounting
periods, and with respect to all contracts and commitments of the Corporation,
reflect adequate reserves for all reasonably anticipated losses and costs in
excess of anticipated income.
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13. DISCLOSURE OF DEBTS AND LIABILITIES - Seller represents and
warrants that the balance sheet referenced in Paragraph 12 above discloses all
of the debts, liabilities, and obligations of the Corporation at the balance
sheet date (except debts, liabilities and obligations that are not required to
be reflected in the balance sheet in accordance with generally accepted
accounting principles) and includes appropriate reserves for all taxes and other
liabilities accrued or due at the balance sheet date, but not yet payable.
14. PRESENT STATUS - Seller represents and warrants that the
Corporation, since the balance sheet dates, has not incurred any obligations or
liabilities except current liabilities in the ordinary course of business; has
not discharged or satisfied any liens or encumbrances, or paid any obligations
or liabilities, except current balance sheet liabilities and current liabilities
incurred since the balance sheet dates in the ordinary course of business; has
not declared or made any shareholder payment or distribution or purchased or
redeemed any of its securities or agreed to do so; has not mortgaged, pledged,
or subjected to lien, encumbrance, or charge any of its assets; has not canceled
any debt or claim; has not sold or transferred any assets except from inventory
in the ordinary course of business; has not suffered any damage, destruction, or
loss (whether or not covered by insurance) materially affecting its properties,
business, or prospects; has not waived any rights of substantial value; and has
not entered into any transaction other than in the ordinary course of business.
15. TAX RETURNS - Seller represents and warrants that the Corporation
has duly filed all federal, state, and local tax returns required to be filed by
it and has paid all federal, state, and local taxes required to be paid with
respect to the periods covered by the returns.
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16. TAX DELINQUENCIES AND AUDITS - Seller represents and warrants that
the Corporation has not been delinquent in the payment of any tax, assessment,
or governmental charge; has not had any tax deficiencies proposed or assessed
against it; has not executed any waiver of the statute of limitations on the
assessment or collection of any tax; and has never been audited by the Internal
Revenue Service or state tax authorities.
17. PAYMENT OF PRIOR DEFICIENCY - In the event that after the closing a
deficiency is determined in the amount of federal or state tax payable by the
Corporation, relating to periods prior to the closing, Seller shall be liable
for the payment of the deficiency.
18. LAWSUITS AND PROCEEDINGS - Seller represents and warrants that to
the best of Seller's knowledge there are no lawsuits or administrative
proceedings pending or threatened against the Corporation or affecting any of
its properties or rights, nor is the Corporation or any of its officers or
directors aware of any acts that reasonably could result in a lawsuit or
administrative proceeding against the Corporation or affecting any of its
properties or rights.
19. COMPLIANCE WITH LAW AND INSTRUMENTS - Seller represents and
warrants that the business and operation of the Corporation have been and are
being conducted in accordance with all applicable laws, rules and regulations of
all authorities, except those that do not materially and adversely affect the
Corporation or its properties, assets, businesses, or prospects; that
performance under this Agreement will not result in any breach of, constitute a
default under, or result in the imposition of any lien or encumbrance on any
property of the Corporation under any arrangements, agreement, or other
instrument to which the Corporation or Seller is a party or by which either is
bound or affected, and will not violate the articles of incorporation, as
amended,
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or the by-laws of the Corporation; and that the Corporation is not, and will not
be by virtue of the transaction contemplated by this Agreement, in violation of
its articles of incorporation, as amended, its by-laws, or of any indebtedness,
mortgage, contract, lease, or other agreement or commitment.
20. TITLE TO FIXED ASSETS - Seller represents and warrants that the
Corporation has good, absolute and marketable title to all of its fixed assets,
(which are listed on Exhibit "C" attached hereto, and as to which Buyer has
conducted its own due-diligence review and is satisfied as to the existence and
condition of those assets), subject to no mortgage, pledge, lien, charge,
security interest, encumbrance or restriction except those that are disclosed on
the balance sheet as securing specified liabilities.
21. CONDITION OF PROPERTIES AND ASSETS - Seller represents and warrants
that there are no latent defects or conditions of the assets or equipment of the
Corporation of which Seller is aware, and which would be a material
consideration to a person or entity, such as Buyer, interested in purchasing
those assets.
Provided further, Buyer acknowledges having had full and ample
opportunity to inspect all assets, whether tangible personal property, leasehold
interest, work in process, accounts receivable, contracts of the Corporation, or
any other right or interest which Corporation may have in property, whether
real, personal, tangible or intangible, and Buyer has satisfied himself as to
the condition and value of all such assets, and understands that Seller is
making no warranties or representations in connection therewith, other than as
to their title and ownership being held by Seller.
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22. PATENTS AND TRADEMARKS - Seller represents and warrants that to the
best of Seller's knowledge and belief, the Corporation does not own or possess
any patents or trademarks, and to the best of Seller's knowledge and
information, the Corporation is not infringing on or otherwise acting adversely
to the rights of any person under or in respect to any copyrights, trademarks,
trademark rights, patents, patent rights, or licenses owned by any person or
persons; there is no claim or pending or threatened action with respect to any
alleged infringement or related violation; the Corporation is not obligated to
pay any royalties or fees to any licensee or other claimant to any patent,
trademark, trade name, copyright, or other intangible asset; and, to the best of
Seller's knowledge and information, the Corporation has the unrestricted right
to use all trade secrets, customer lists, manufacturing and other processes
incident to the manufacture, use, or sale of any and all products currently sold
by it.
23. CONTRACTS - Seller represents and warrants that all material
contracts to which the Corporation is a party are listed on Exhibit "D" attached
hereto. Buyer acknowledges having had full right and opportunity to review the
terms and provisions of all such contracts, and has no objection thereto.
Seller represents and warrants that the Corporation has in all
respects performed all obligations required to be performed to date and is not
in material default in any respect under any of the contracts, agreements,
leases, documents, or other commitments to which it is a party or by which it is
otherwise bound and affected; and that all parties having contracts with the
Corporation are in material compliance and are not in material default under
their respective contracts.
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24. COMPENSATION OF OFFICERS AND OTHERS - Seller represents and
warrants that since the balance sheet date, there has not been a change in any
compensation, commission, bonus, or other remuneration payable to any officer,
director, agent, employee, or consultant of the Corporation, except for
increases in the ordinary course of business consistent with prior practice.
25. INVENTORIES - Seller represents and warrants that the inventories
of the Corporation as set forth on Exhibit "E" are reflected on the balance
sheet as August 31, 2000 and all inventory items that have been acquired since
the balance sheet date consist of goods of such quality and in such quantities
as are salable in the ordinary course of its business with normal markup at
prevailing market prices; that the inventories were determined at the lower of
cost or market value; and that since the balance sheet date, the Corporation has
continued to replenish its inventory in a normal and customary manner consistent
with prior and prudent practice prevailing in the business of the Corporation.
26. RECORDS - Seller represents and warrants that the respective books
of account and minute books of the Corporation are complete and correct, and
they reflect all of the transactions involving the Corporation's business which
properly should have been set forth in those books.
27. BROKER'S FEES - Seller and Buyer each warrants and represents that
each in its own respect is not obligated in any way for any commission, fee, or
other remuneration to any finder, broker, or the like employed by any party in
connection with this Agreement or its negotiation, execution, or performance.
Provided further, each party agrees to and does hereby indemnify and hold the
other harmless from and against any and all claims, causes of action,
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damage, lost fees, costs or expenses arising out of or relating to any claim
made against the indemnitee by any person or entity claiming the right to a
broker's or finder's fee or commission in connection with this transaction.
28. ACCOUNTS RECEIVABLE - Seller represents and warrants that the
accounts receivable of the Corporation are reflected on Exhibit "F" attached
hereto, and that all such accounts receivable are believed to be valid and
enforceable claims, as to which Seller has no knowledge or information causing
it to believe that any of these receivables are not fully collectible.
29. PURCHASE COMMITMENTS AND OUTSTANDING BIDS - Seller represents and
warrants that no purchase commitments of the Corporation are in excess of
normal, ordinary, and usual requirements of its business, or were made at a
price in excess of the market price, or contain terms and conditions more
onerous than those usual and customary in the industry..
30. INSURANCE POLICIES - Seller warrants and represents that all
policies of insurance in force at the time of this Agreement are listed on
Exhibit "G" attached hereto.
31. OPERATIONS - Unless Buyer consents in writing to the contrary,
Seller shall cause the Corporation to operate only in the ordinary course of
business. Seller shall not cause the Corporation to enter into any transaction
or perform any act that would constitute a breach of the representations,
warranties, or agreements contained in this contract.
32. BUYER'S RIGHT OF EXAMINATION - Seller will cause the Corporation to
afford Buyer access, during normal business hours, to all of its business
operations, properties, books, files and records, and shall cooperate in Buyer's
examination of these. Until the closing, Buyer shall hold in strictest and most
absolute confidence all information so obtained, and any document or
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instrument obtained by Buyer in connection with this Agreement, whether before
or after the date of this Agreement, shall be held in express trust for and on
behalf of Seller and the Corporation, and it this Agreement does not proceed to
closing, Buyer shall be obligated to return all such documents, and all copies
thereof, to Seller.
33. COMPLIANCE - Seller shall cause the Corporation and its officers
and employees to comply with all applicable provisions of this contract.
34. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS - The obligation of
Buyer to consummate this Agreement is subject to and conditioned on the
satisfaction, at or prior to the closing, of all of the terms and conditions of
this contract to be complied with and performed by Seller at or prior to the
closing, and subject to the following conditions:
a. All corporate and other proceedings and actions taken in
connection with the transactions contemplated in this contract and all
certificates, opinions, agreements, instruments, and documents
mentioned in this contract or incident to any contemplated transaction
shall be satisfactory in form and substance to Buyer and Buyer's
counsel;
b. The representations and warranties of Seller in this
Agreement shall be deemed to have been made again on the closing date
and to be true and correct at that time, subject to any changes
contemplated by this Agreement.
c. Bank of America shall have consented to permitting BAM's
indebtedness to remain in place for a minimum of one year from the
closing of this Agreement.
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d. Honeywell International Inc. (formerly Allied Signal) shall
have agreed to the sale of BAM or shall have agreed that the sale of
BAM does not effect or interrupt the existing Toll Manufacturing
Agreement For Carbonization Services dated November 23, 1998, and any
amendments thereto, or shall have agreed to revised language that
permits the sale of BAM without any requirement for their consent.
35. RESIGNATION OF DIRECTORS AND OFFICERS - Seller shall deliver to
Buyer at the closing the written resignations of the directors and officers of
the Corporation.
36. OPINION OF SELLER'S COUNSEL - Seller shall deliver to Buyer the
opinion, dated the closing date, of Seller's counsel, Kevin T. Fogerty, Esquire,
in form and substance satisfactory to Buyer and Buyer's counsel, to the
following effect:
a. The Corporation is a duly and validly organized and
existing corporation in good standing under the law of the State of
Pennsylvania with full corporate power to carry on the business in
which it is engaged, and it is legally qualified to do business as a
foreign corporation in good standing in the State of Tennessee.
b. The performance of this Agreement and the consummation of
the transactions contemplated in this Agreement will not result in any
breach or violation of any of the terms or provisions of, or constitute
a default under, the Corporation's Articles of Incorporation or
By-laws, or any order, rule, or regulation of any court or governmental
agency or body having jurisdiction over the Corporation or any of its
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activities or properties, or any statute, indenture, mortgage, deed of
trust, lease, loan agreement, security agreement, or other agreement or
instrument known to Seller's counsel, to which the Corporation is a
party, by which it is bound, or to which any of its property is
subject;
c. No provision of the articles of incorporation, as amended,
by-laws, as amended, minutes, or share certificates of the Corporation,
or of any contract to which the Corporation or Seller is a party or by
which it is otherwise bound or affected, prevents Seller from
delivering good, absolute and marketable title to the Corporation's
common stock to Buyer as contemplated by this Agreement;
d. Except as disclosed herein, Seller has the complete and
unrestricted power and right to transfer, sell, assign, and deliver to
Buyer the Corporation's common stock, and good, absolute, and
marketable title to the Corporation's common stock, free and clear of
all liens, encumbrances, charges, escrows, equities, and other
restrictions.
e. The Corporation is authorized to issue shares of common
stock, par value $10 cents per share, of which there are 1,000 shares
issued and outstanding, all of which are duly authorized, validly
issued, and outstanding, and to the knowledge of Seller's counsel, the
issuance and sale of the shares did not violate the Securities Act of
1933, as amended or the rules and regulations of the Securities and
Exchange Commission or any applicable state securities laws;
f. The Corporation has no other authorized or outstanding
series or class of common stock or other securities;
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g. Seller's counsel has no knowledge of any litigation,
proceeding, or governmental investigation or labor dispute or labor
trouble pending or threatened against or relating to the Corporation or
its properties or business, except as set forth in the opinion.
37. COVENANT NOT TO COMPETE - For ten years following the closing,
Seller will not, directly or indirectly, within the existing marketing area of
the Corporation in the United States, enter into or engage generally in direct
competition with the Corporation in the business of manufacturing high
temperature furnaces or offering toll processing services for advanced materials
such as carbon or graphite, either as an individual or as a partner or joint
venturer, as an employee or agent for any person, as an officer, director, or
shareholder of any corporation, or otherwise. This covenant on the part of
Seller shall be construed as an agreement independent of any other provision of
this Agreement; and the existence of any claim or cause of action of Seller
against Buyer, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Buyer of this covenant.
38. INDEMNIFICATION - Seller shall indemnify Buyer on and after the
closing with respect to any claim, action, demand, loss, cost, expense,
liability, penalty, or damages, including counsel fees and other costs and
expenses reasonably incurred in investigating or in attempting to avoid or
oppose the imposition of damages or in enforcing this indemnity, resulting to
Buyer from any of the following:
a. Any inaccurate representation made by or on behalf of
Seller in or pursuant to this Agreement;
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b. Breach of any of the warranties made by or on behalf of
Seller in or pursuant to this Agreement;
c. Breach or default of the performance by Seller of any of
the obligations to be performed by it under this Agreement;
d. All debts, liabilities, and obligations of the Corporation
at the balance sheet date that are not reflected in the balance sheet,
whether known or unknown by Seller;
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e. Any litigation involving the Corporation whether or not
disclosed to Buyer;
f. The Corporation's failure to own, possess, and have good
title to all copyrights, trademarks, trademark rights, patents or
business;
g. The Corporation's infringing on or acting adversely to the
rights or claimed rights of any person under or in respect to any
copyrights, trademarks, trademark rights, patents, patent rights, or
patent licenses;
h. The Corporation's failure in any respect to perform any
obligation required by it to be performed at or prior to the date of
this Agreement or at or prior to the closing date, or by reason of any
default of the Corporation, at the date of this Agreement or at the
closing date, under any of the contracts, agreements, leases,
documents, or other commitments to which it is a party or by which it
is otherwise bound or affected.
Seller shall reimburse Buyer on demand for any payment made by
Buyer at any time after the closing, based on the judgment of any court of
competent jurisdiction or pursuant
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to a bona fide compromise or settlement of claims, demands, or action, in
respect to any damages to which the foregoing indemnity relates. Buyer shall
give Seller prompt written notice of any litigation threatened or instituted
against the Corporation that might constitute the basis of a claim for indemnity
by Buyer against Seller. Notwithstanding any other provision of this Agreement,
Buyer shall have the right to set off against any notes of payment it may
otherwise owe to Seller any amount for which Buyer would be entitled to
indemnification. Buyer shall indemnify and hold Seller harmless from and against
any and all claims, actions, demand, loss, cost, expense, liability, penalty or
damages, fees or expenses, (including but not limited to reasonable attorneys
fees, expert witness fees and litigation-related costs and expenses), incurred
by Seller as a result of any act, conduct or omission of Buyer, in connection
with the Corporation, after/following the date of closing.
39. RECORDS OF THE CORPORATION - For a period of seven (7) years
following the closing date, the books of account and records of the Corporation
pertaining to all periods prior to the closing date shall be available for
inspection by Seller for use in connection with tax audits (if any).
40. EXPENSES - Each party shall bear all expenses (including but not
limited to attorneys fees), incurred by it in connection with this contract and
in the consummation and preparation for the transactions contemplated in this
contract.
41. AMENDMENT AND WAIVER - This contract may only be amended or
modified by an instrument in writing, executed by Seller, Buyer and Corporation,
and each party waives the right
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to argue that the other has implicitly waived the right to require this signed
writing, by its actions of conduct.
42. ASSIGNMENT - Neither this contract nor any right created by this
contract shall be assignable by either party without the prior written consent
of the other, and any such non-permissible attempted assignment shall be deemed
null, void and of no legal force and effect. Nothing in this contract is
intended to confer on any person, other than the parties and their successors,
any rights or remedies under or by reason of this contract. However, it is
agreed and understood that Buyer may assign this Agreement to any business
entity in which Buyer is a principal.
43. NOTICES - Any notice, communication, request reply, or advice
("notice") required or permitted to be given, made, or accepted by either party
under this contract must be in writing and may be given or served by (i)
facsimile transmission (deemed given or delivered on the date of the
transmission), (ii) a personal delivery (deemed given or delivered on the date
of delivery), (iii) by deposit with a reputable overnight courier/delivery
service (Airborne Express, Federal Express, etc.) in which event, the notice,
communication, etc. shall be deemed given or delivered on the day following the
date on which it was deposited with or delivered to the carrier for overnight
delivery (assuming the delivery actually takes place), or (iv) by registered or
certified mail, restricted delivery, postage to be paid, which shall be deemed
delivered of given on the third day following deposit in the mail.
For purposes of these notice requirements, the addresses of
the parties as well as their legal counsel to whom notice must also be given,
are follows:
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Seller: With a copy to:
The Bethlehem Corporation Kevin T. Fogerty, Esquire
25th & Lennox Streets 1620 Pond Road, Suite 301
Easton, PA 18045.. Allentown, PA 18104
Attn: President or CFO (fax: 610o 366o 0955)
(fax: 610-258-8154)
Buyer: With a copy to:
Bergen Cove Realty Inc. Robert A. Bruno, Esquire
18 East 50th Street 871 Annette Drive
New York, NY 10022 Wantagh, NY 11793
(fax: 212-272 -3693) (fax: 516-409-5261)
44. HEADINGS - Headings contained in this contract are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this contract.
45. ASSUMPTION OF PENSION PLAN OBLIGATIONS - All of the corporation's
retirement, employee benefit, employee welfare or other pension plans (hereafter
collectively "the Plan"), and shall assume all obligations and responsibilities
in connection with the Plan. Seller shall deliver all records of the Plan,
resignations of appointed trustees and the administrative committee, and all
forms necessary to transfer the assets of the Plan to the trustees appointed by
Buyer. Seller represents and warrants that as of the closing date, the Plan
shall be in substantial compliance with all requirements of the Employee
Retirement Income Security Act of 1974 (ERISA), as amended, and shall be a
qualified plan and trust under Internal Revenue Code Sections 401 and 501.
Seller represents and warrants that all contributions then required by the Plan
and by law shall have been made as of the closing date, that the Plan shall be
in compliance with minimum funding standards under Internal Revenue Code Section
412, and that there are
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and have been no "reportable events" under Title IV of ERISA or the regulations
of the Pension Benefit Guaranty Corporation.
46. COUNTERPART EXECUTION - This contract may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
47. PARTIES IN INTEREST - All of the terms and provisions of this
contract shall be binding on and inure to the benefit of and be enforceable by
Buyer and Seller, their heirs, executors, administrators, successors, and
assigns.
48. INTEGRATED CONTRACT - This contract constitutes the entire
agreement between the parties, there are no agreements, understandings,
restrictions, warranties, or representations between the parties other than
those set forth or provided for in herein, and that any and all prior or
contemporaneous oral or written promises, warranties, representations and other
communications shall be deemed extinguished herein and merged hereby, unless
expressly set forth in this agreement.
49. CHOICE OF LAW - It is the intention of the parties that the
substantive laws of the Commonwealth of Pennsylvania (excluding its
conflicts-of-law principles), shall govern the validity of this contract, the
construction of its terms, the interpretation of the rights and duties of the
parties, and any and all rights or claims arising out of or relating to this
Agreement. The parties agree that any and all disputes or claims arising out of
or relating to this Agreement shall be submitted to binding arbitration before
the American Arbitration Association, to be subject to
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the rules and procedures of the AAA, to be administered out of the AAA's offices
in Philadelphia, Pennsylvania.
SELLER:
THE BETHLEHEM CORPORATION
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BUYER:
BERGEN COVE REALTY INC.
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