FORM 10-QSB
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20001
QUARTERLY REPORT UNDER SECTION 13 OR 15 (D)
OF THE SECURITIES AND EXCHANGE ACT OF 1934
FOR QUARTER ENDED JUNE 30, 2000 COMMISSION FILE NUMBER 07320
FARM FISH, INC.
A MISSISSIPPI CORPORATION E. I. NUMBER 64-0532896
Post Office Box 23109
Jackson, Mississippi 39225-3109
Telephone Number (601) 354-3801
Check whether in insurer (1) has filed all reports required to be filed by
Section 13 or 15 (d) of the Exchange Act during the past 12 months (or shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
YES X NO
State the number of shares outstanding of each of the insurers classes of common
equity, as of the latest purchase date.
CLASS OUTSTANDING AS OF JUNE 30, 2000 2,688,605 SHARES
Common Stock, No Par Value Number of Shares
FARM FISH, INC.
INDEX
PAGE
PART I FINANCIAL INFORMATION
Item 1 Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets
June 30, 2000 and December 31, 1999 1
Condensed Consolidated Statements of Operations
Three Months and Six Months Ended June 30, 2000
and 1999 2
Condensed Consolidated Statements of Cash Flows
Six Months Ended June 30, 2000 and 1999 3
Notes to Condensed Consolidated Financial
Statements 4,5
Item 2 Management's Discussion and Analysis of Financial
Condition and Results of Operations 6,7
PART II OTHER INFORMATION 8
Item 1. Legal Proceedings 8
Item 4. Submission of Matters to a Vote of
Security Holders 8
Item 6. Exhibits and Reports on Form 8-K 8
- 1 -
PART I FINANCIAL INFORMATION
FARM FISH, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
JUNE 30, 2000 (UNAUDITED) AND DECEMBER 31, 1999
JUNE 30, DEC. 31,
2000 1999
____________________________
(UNAUDITED) (*NOTE)
ASSETS
CURRENT ASSETS
Cash $ 21,327 $ 147,393
Accounts Receivable 193,635 236,568
Inventories - Note 2 5,613,759 5,341,273
Prepaid Expenses 26,681 4,342
---------- ---------
Total Current Assets 5,855,402 5,729,576
PROPERTY, PONDS, AND EQUIPMENT - NET 1,813,997 2,060,799
OTHER ASSETS 296,336 398,455
---------- ---------
TOTAL ASSETS $7,965,735 $8,188,830
========== ==========
LIABILITIES AND STOCKHOLDERS EQUITY
CURRENT LIABILITIES
Notes Payable to Bank $1,171,867 $1,515,000
Accounts Payable 45,795 142,200
Advances Payable to Shareholder 2,154,083 2,077,222
Other Accrued Expenses and Payables 83,482 40,610
---------- ---------
TOTAL CURRENT LIABILITIES 3,455,227 3,775,032
DEFERRED INCOME TAXES 108,000 108,000
STOCKHOLDERS' EQUITY
Common Stock - without par value, authorized
5,000,000 shares, subscribed and issued 2,688,605
shares at stated value at June 30, 2000 and
2,688,605 shares at December 31, 1999 4,424,336 4,424,336
Additional Paid-In Capital 475,776 475,776
Retained Earnings (Deficit) (497,604) (594,314)
----------- ----------
TOTAL STOCKHOLDERS' EQUITY 4,402,508 4,305,798
----------- ----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $7,965,735 $8,188,830
=========== =========
See accompanying notes to condensed consolidated financial statements.
- 2 -
FARM FISH, INC.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(UNAUDITED)
FOR THREE MONTHS AND SIX MONTHS ENDED JUNE 30, 2000 AND 1999
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30 JUNE 30
_____________________ __________________
2000 1999 2000 1999
NET SALES $ 508,597 $ 137,217 $ 959,422 $ 610,800
OTHER INCOME 23,231 988 107,209 75,316
--------- --------- --------- ---------
531,828 138,205 1,066,631 686,116
COST AND EXPENSES
Cost of Sales 447,994 134,121 789,019 530,934
Selling, General, and
Administrative Expenses 38,237 44,616 75,954 93,161
Interest 15,377 7,423 45,675 15,149
--------- --------- --------- ---------
Total Cost and Expense 501,608 186,160 910,648 639,244
INCOME BEFORE INCOME TAXES 30,220 (47,955) 155,983 46,872
INCOME TAX EXPENSE (11,483) 0 (59,273) (34,844)
--------- --------- --------- ---------
NET INCOME (LOSS) $ 18,737 $(47,955) $ 96,710 $12,028
========= ========= ========= ========
NET INCOME (LOSS) PER BASIC AND
DILUTED SHARE $.01 $(0.02) $.04 $.00
========= ========= ========= ========
WEIGHTED AVERAGE BASIC AND DILUTED
COMMON SHARES OUTSTANDING 2,688,605 2,688,605 2,688,605 2,688,605
========= ========= ========= ==========
See accompanying notes to condensed consolidated financial statements
- 3 -
FARM FISH, INC.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(UNAUDITED)
FOR SIX MONTHS ENDED JUNE 30, 2000 AND 1999
SIX MONTHS ENDED
JUNE 30
______________________
2000 1999
NET CASH PROVIDED BY OPERATING ACTIVITIES $ 175,858 $(108,201)
INVESTING ACTIVITIES
Purchase or Sale of Equipment 24,560 (42,000)
FINANCING ACTIVITIES
Net decrease in note payable to bank 343,133 350,000
Net change in advance payable to Shareholders 26,478 (55,205)
--------- ---------
NET CASH USED IN FINANCING ACTIVITIES (316,655) 294,795
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (116,237) 144,594
CASH AND CASH EQUIVALENTS AT BEGINNING 147,393 24,965
-------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 31,156 $169,559
See accompanying notes to condensed consolidated financial statements
- 4 -
FARM FISH, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
NOTE 1: BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions for Form 10-QSB. Accordingly,
they do not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In the
opinion of management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Operating
results for the six-month period ended June 30, 2000 are not necessarily
indicative of the results that may be expected for the year ended December 31,
2000. The balance sheet at December 31, 1999 has been derived from the audited
consolidated financial statements at that date but does not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. For further information refer to
consolidated financial statements and footnotes thereto included in the
Company's Annual Report on Form 10-KSB for the year ended December 31, 1999.
NOTE 2: INVENTORIES
The components of inventory consist of the following:
JUNE 30, DEC. 31,
2000 1999
_________________________
Live Fish $5,575,802 $5,310,120
Feed and Supplies 37,957 31,153
---------- ----------
TOTAL INVENTORY $5,613,759 $5,341,273
========== ==========
- 5 -
FARM FISH, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 3: SALE OF ASSETS
During the first quarter of fiscal 2000, the Board of Directors authorized
officers of the Company to initiate negotiations with certain interested third
parties regarding the sale of all of the Company's land, ponds and improvements,
buildings and certain equipment. Any agreement reached for the sale of such
assets would be subject to the approval of the Board of Directors and stock-
holders of the Company. The Company anticipates that any sale would be for an
amount which approximates the book value of the assets being sold. If an
agreement is reached, it is the Company's intention to grow-out and sell the
existing live fish inventory. While negotiations have been authorized, there
can be no assurance that any definitive agreement will be reached regarding
the sale of these assets.
- 6 -
FARM FISH, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATION
The following is Management's Discussion and Analysis of certain significant
factors which have affected the Company's earnings during the periods included
in the accompanying statements of income.
OPERATING RESULTS:
SIX MONTHS ENDED JUNE 30, 2000, COMPARED TO SIX MONTHS ENDED JUNE 30, 1999
Sales for the period ending June 30, 2000 were $959,422 compared to
$610,800 for the same period in 1999.
During the six month period ended June 30, 2000, Farm Fish, Inc.
made a profit before taxes of $155,983 compared to $46,872 profit
for the same period in 1999.
The price of live fish sold for the period averaged $.80 per pound
compared to $.76 per pound for the same period in 1999. Fingerling
sales were $165,191 for the second quarter of 2000. There were no
fingerling sales in 1999 for this period.
Cost of Sales was 82% of sales for the current six month period compared
to 87% of sales for the same period of 1999. The average production
cost of fish for the period was $.6024 per pound compared to $.6074
average production cost per pound for the same period last year.
The company had other income including dividends from a feed cooperative
of $76,231 for the current six month period compared to $68,922 last year.
THREE MONTHS ENDED JUNE 30,2000, COMPARED TO THREE MONTHS ENDED JUNE 30,
1999
Net sales for the three months ended June 30, 2000 increased by $371,380
from 1999 including $165,191 of fingerling sales. The number of pounds
of food fish sold during the period increased by 465,577 pounds. The
average selling price of food fish during this period increased by
$.05 per pound.
Cost of sales increased from 1999 by $313,873 due primarily to inventory
adjustments for increased sales. General and Administrative
expenses decreased over 1999 by $6,379.
- 7 -
FARM FISH, INC.
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY
As of June 30, 2000, current assets exceeded current liabilities by
$2,400,175 compared to $1,954,544 for the same period ended June 30, 1999.
Farm Fish, Inc. had an unused line of credit with a local bank as of June
30, 2000 of $828,133 compared to $1,265,000 unused as of June 30, 1999.
The total line of credit as of June 30, 2000 and 1999 was $2,000,000.
In addition to this line of credit and internally generated funds, the
Company would rely on Delta Industries, Inc. to supply additional working
capital, if needed.
- 8 -
PART II OTHER INFORMATION
FARM FISH, INC.
ITEM 1 - LEGAL PROCEEDINGS
The Registrant is not aware of any pending legal proceedings, other than
ordinary routine litigation incidental to the business, involving the
Registrant or its subsidiary of any property or assets.
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Annual Meeting of the Stockholders' for Farm Fish, Inc., was held May 26,
1999, with election of Thomas R. Slough, Jr., Leland R. Speed, Robert Reed Doyle
and W. D. Mounger as directors. The annual report for 1998 and all actions of
the officer and directors of the corporation were adopted and approved.
ITEM 6 - EXHIBIT AND REPORT ON FORM 8-K
(a) Exhibit 10(e) Asset Purchase Agreement dated July 20, 2000 (attached)
Exhibit 27 - Financial Data Schedule (attached)
(b) There was no report on Form 8-K for the quarter ended June 30, 2000.
SIGNATURES
In accordance with the requirements of the Exchange Act, the Registrant caused
this report to be signed on its behalf by the undersigned thereunto duly
authorized.
FARM FISH
____________________
(Registrant)
August 10, 1999
_____________ _____________________________
Date Jayne Dew Secretary/Treasurer
ASSET PURCHASE AGREEMENT
by and between
H & S Fish Farms, Inc.
As Buyer
and
Farm Fish, Inc.
as Seller
July 20, 2000
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
TRANSACTION
1.1 Transaction 1
1.2 Lease Option Prior To Closing 3
1.3 Purchase Price 3
1.4 Escrow Deposit 3
1.5 Prorations 4
1.6 Allocation of Purchase Price 5
1.7 Contesting of Assumed Liabilities; No Third Party Beneficiaries 5
1.8 Costs of Closing 5
1.9 Inspection. 6
ARTICLE 2
TITLE MATTERS
2.1 Title Report/Commitment for Title Insurance 7
2.2 Survey 7
2.3 Title Defects 7
2.4 Title Insurance 8
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF SELLER
3.1 Organization and Qualification 9
3.2 Binding Agreement 9
3.3 No Violation 9
3.4 Absence of Certain Changes 10
3.5 Litigation or Proceeding 10
3.6 Contracts 10
3.7 Title to Assets 10
3.8 Compliance with Law and Regulations 10
3.9 Use of Assets 11
3.10 FIRPTA 11
3.11 Payments. 11
3.12 Employees 11
3.13 Absence of Creditors' Arrangements or Proceedings 11
3.14 Inventory 11
3.15 Knowledge Standard 12
3.16 [INSERT additional security representations if parties agree to purchase
of certain securities]
12
3.17 No Other Buyer Representations 12
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Corporate Organization; Etc. 12
4.2 Authorization of Agreement 12
4.3 No Violation 12
4.4 Litigation or Proceeding 13
4.5 Consents and Approvals of Governmental Authorities 13
4.6 Financial Statements. 13
4.7 Inspection 13
4.8 [INSERT additional security representations if parties agree to purchase
of certain securities 13
4.9 No Other Seller Representations 13
4.10 "AS IS, WHERE IS" 13
ARTICLE 5
COVENANTS OF SELLER
5.1 Operations of Seller 14
5.2 Change in Condition 14
5.3 Insurance 14
5.4 Payment of Liabilities 14
5.5 Notification of Subsequent Events. 14
5.6 Environmental Study. 15
5.7 Post Closing Transactions. 15
5.8 Representations and Warranties 15
5.9 Alienation of Assets 15
5.10 Mortgages 15
5.11 Employees 15
ARTICLE 6
COVENANTS OF BUYER
6.1 Affected Employees. 16
6.2 Financial Statements. 16
ARTICLE 7
CONDITIONS TO BUYER'S OBLIGATION TO CLOSE
7.1 Representations and Warranties True at Closing 16
7.2 Compliance with Agreement 16
7.3 No Adverse Change 16
7.4 Litigation 16
7.5 Opinion of Counsel. 17
7.6 Evidence of Authority 17
7.7 Closing Documents. 17
7.8 Possession of Assets 17
ARTICLE 8
CONDITIONS TO SELLER'S OBLIGATIONS TO CLOSE
8.2 Payment of Purchase Price 17
8.3 Representations and Warranties True at Closing 18
8.4 Compliance with Agreement 18
8.5 Litigation. 18
8.6 Opinion of Counsel. 18
8.7 Evidence of Authority 18
8.8 Instruments Relating to the Seller Financing and Transfer. 18
8.9 Buyer's Financial Statements. 18
ARTICLE 9
CLOSING; TERMINATION; POST CLOSING
9.1 Closing 18
9.2 Termination 19
9.3 Breach by Buyer 19
9.4 Breach by Seller 19
9.5 Knowledge as a Defense. 20
9.6 Post-Closing Deliveries 20
ARTICLE 10
RISK OF LOSS
10.1 Risk of Loss. 20
ARTICLE 11
MISCELLANEOUS
11.1 Consents 21
11.2 Contested Assignment 21
11.3 Limited Survival 21
11.4 Successors or Assigns 21
11.5 No Benefit to Others. 21
11.6 Announcements 22
11.7 Further Assurances. 22
11.8 Broker's Fees 22
11.9 Notices 22
11.10 Counterparts 22
11.11 Facsimile Signatures 22
11.12 Headings 22
11.13 Governing Law 23
11.14 Waiver of Jury Trial 23
11.16 Attorneys' Fees 23
11.17 Computation of Time Periods. 23
11.18 Time of the Essence 23
11.19 No Waiver 23
11.20 Exclusiveness 23
11.21 Severability 24
11.22 Interpretation, No Presumption 24
11.23 Exhibits 24
11.24 Confidentiality 24
<PAGE>
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") dated this 20th day of
July, 2000 ("Effective Date"), is made by and between H & S Fish Farms, Inc.,
a Mississippi corporation, with its principal place of business at__________
("Buyer"), and Farm Fish, Inc., a Mississippi corporation, with its principal
place of business in Humphreys County, Mississippi ("Seller").
WHEREAS, Seller owns and operates a catfish farming operation located in
Humphreys County, Mississippi (collectively, the "Business");
WHEREAS, Buyer desires to purchase certain of the assets of Seller
pursuant to the terms and conditions set forth herein;
WHEREAS, Seller desires to sell, transfer and convey certain of its
assets to Buyer as set forth herein;
WHEREAS, Seller desires to sale its entire inventory of fish, in the
ordinary course of business without restocking, to third parties prior to
Closing of the transactions contemplated hereby;
WHEREAS, Seller and Buyer acknowledge that Seller's liquidation of its
fish inventory will extend over a period of many months following the
Effective Date, and the transactions set forth herein shall extend over such
period, ending on the Closing Date;
WHEREAS, Seller is willing, if requested by Buyer, to allow Buyer access
to certain of the Assets prior to Closing pursuant to the terms of the lease
attached hereto after Seller has vacated a portion of the Assets;
WHEREAS, Buyer intends to take only partial possession of the property
upon execution of this Agreement;
WHEREAS, Buyer intends to make capital improvements upon the assets as
Buyer takes possession;
WHEREAS, Buyer is willing to pay, and Seller is willing to accept a
rental payment in the amount of $100.00 while Buyer is completing such
capital improvements;
WHEREAS, upon Closing, Seller shall finance the Purchase Price in
accordance with the terms set forth herein; and
WHEREAS, after the 180th day after Closing, Seller shall liquidate and
distribute its net proceeds (after payment of its debts and obligations) to
its shareholders.
NOW, THEREFORE, in consideration of the premises and the respective
mutual agreements, representations and warranties contained herein, the
sufficiency of which is hereby acknowledged, the parties intending to be
legally bound agree as follows:
ARTICLE 1
TRANSACTION
1.1 Transaction. The recitals set forth above are incorporated
herein by this reference. Subject to the terms and conditions contained
herein, Seller shall sell, transfer and convey and Buyer shall purchase
certain assets of Seller used or available for use in connection with the
operation of the Business, including, without limitation, certain real and
personal property listed on Exhibit 1.1(a) (Real and Personal Property
Schedule) (collectively, the "Assets"), except for the Excluded Assets
(as defined below). Seller shall liquidate its current inventory between the
Effective Date and the Closing Date. As Seller liquidates its inventory,
Seller shall lease such portion of the Assets as are released by such
liquidation to Buyer, under the terms and conditions set forth in
subparagraph 1.2 and the Real Estate Lease attached hereto. The parties
expressly acknowledge and agree that Exhibit 1.1(a) may not include all
contracts of Seller and shall be amended at Closing (as defined below) to
clarify exactly which contracts, if any, will be a part of the Assets being
conveyed to Buyer. Buyer hereby elects to exclude all contracts from the
Assets being conveyed at Closing ("Excluded Contracts"). The Excluded
Contract shall not be deemed to be an Asset to be purchased hereunder, but
shall be deemed to be an Excluded Asset.
Buyer and Seller expressly agree that the Assets do not include in any
manner the items of Seller's property listed on Exhibit 1.1(b) (Excluded
Assets), and such items of Seller's property shall not be sold, transferred,
assigned or conveyed to Buyer at the Closing ("Excluded Assets").
At Closing, Buyer will only assume certain obligations, liabilities and
indebtedness of Seller relating to the Contracts in accordance with their
terms and pursuant to the terms of the Assignment and Assumption Agreement,
in the form attached hereto (collectively, the "Assumed Liabilities").
Notwithstanding any other provision of this Agreement, Seller hereby
acknowledges and agrees that Buyer has only agreed to assume certain
specified liabilities, obligations and indebtedness of Seller and nothing
contained herein or in any documents executed in connection herewith shall
be deemed an assumption of any obligations, liabilities or indebtedness of
Seller other than the Assumed Liabilities. Therefore, Seller shall remain
liable for and the responsible party with respect to any and all obligations,
liabilities or indebtedness not being expressly referenced and assumed by
Buyer hereunder and Seller shall timely perform in full their liabilities
and obligations relating thereto.
1.2 Lease Option Prior To Closing. In the event that: (i) Seller, in
its sole and absolute discretion, elects to remove its fish inventory from
certain portions of the Real Property prior to Closing ("Vacated Land") and
(ii) Buyer, in its sole and absolute discretion, elects to take possession
of the Vacated Land for purposes of improving the ponds and other
improvements located on the Vacated Land and/or stocking fish into any ponds
located on the Vacated Land, Buyer shall lease such Vacated Land and any
related equipment contained with the Assets to be transferred from Seller
pursuant to the terms of the form leases attached hereto as Exhibit 1.2.
The terms of such lease shall include, without limitation, a lease term of
no more than twenty-four (24) months (the exact term will be based on the
period of time remaining prior to the projected Closing Date and shall be
subject to acceleration and immediate termination in the event of a default
under this Agreement), rental payments of $100 per month if Buyer's only
use of the Vacated Land is to undertake capital improvements, monthly rental
payments based on a six percent (6%) interest factor of the mutually agreed
upon allocated portion of the Purchase Price applicable to the Vacated Land
if Buyer's use of any portion of the Vacated Land is to operate, stock or
grow fish in any manner. Simultaneous with Buyer leasing any portion of
the Real Property, Buyer shall have the option, at its sole discretion, to
close the purchase of certain items of tangible Personal Property contained
within the Assets as selected by Buyer and approved by Seller. The purchase
price of such items of Personal Property shall be equal to the allocated
portion of the Purchase Price relating to such items and shall be payable
in full in immediately available funds at the time of such transfer.
1.3 Purchase Price. Upon and in accordance with the terms and
conditions of this Agreement, Seller agrees to sell, and Buyer agrees to
purchase, the Assets for a total purchase price equal to the sum of One
Million Eight Hundred Thousand and 00/100 Dollars ($1,800,000) ("Purchase
Price"), plus or minus prorations and other adjustments provided by this
Agreement. The Purchase Price shall be paid in the form of $1,500,000.00
negotiable promissory note made payable to the order of Seller and its
assigns ("Note") bearing a six percent (6%) interest rate per annum payable
in quarterly installments as necessary to fully amortize the principal
balance over a ten (10) year period; secured by a first priority lien on
the assets pursuant to a Deed of Trust and Security Agreement and such
other loan documents as reasonably requested by Seller or its counsel,
the forms of such are attached hereto as Exhibit 1.3 (collectively, the
"Security Documents"). The balance of the Purchase Price shall be payable
in full in immediately available funds at Closing.
1.4 Share Purchase Price. In addition to the Purchase Price set
forth above, upon and in accordance with the terms and conditions of this
Agreement, Seller agrees to sell, and Buyer agrees to purchase, 1908 shares
of stock of Producer's Feed ("Shares")for a total purchase price equal to
$25.00 per share for a sum of Forty-Seven Thousand Seven Hundred and 00/100
Dollars ($47,000) ("Share Purchase Price"). Seller agrees to sell, and
Buyer agrees to purchase 200 Shares which shall be transferred by Seller to
Buyer simultaneous with the execution of this Agreement and upon payment of
$5,000.00 of the Share Purchase Price by Buyer to Seller in immediately
available funds. Seller agrees to grant, and Buyer shall have an option to
purchase which may only be exercised prior to Closing the balance of the
Shares (1708) which shall be transferred by Seller to Buyer at Closing and
upon payment of the balance of the Share Purchase Price ($42,700.00) by
Buyer to Seller in immediately available funds.
1.5 Escrow Deposit. (a) Buyer shall within two (2) business days
following the Effective Date deliver to First American Title Insurance
Company ("Title Company") the sum of One Hundred Thousand And No/100
Dollars ($100,000.00) ("Escrow Deposit") in lawful funds of the United
States of America. If Buyer elects to terminate this Agreement pursuant
to the express provisions hereof, then Title Company shall refund to Buyer
the Escrow Deposit and all interest accrued thereon. The Escrow Deposit
and all interest thereon shall be non-refundable to Buyer except in the
case of: (i) Seller's default; (ii) the non-satisfaction of the
conditions set forth in Section 7.1; or (iii) except as otherwise expressly
set forth herein. In any event, the Escrow Deposit shall be credited toward
the Purchase Price upon Closing. Title Company is hereby instructed to
invest the Escrow Deposit in an FDIC insured interest bearing account in the
name of Buyer. Buyer's taxpayer identification number is 64-0927035.
Buyer and Seller hereby acknowledge and agree that all accrued interest on
the deposit shall be credited to Buyer, provided, however, in the event that
this transaction does not Close due to an event of default by Buyer and
through no event of default of Seller unless Seller's performance is excused
due to a prior default of Buyer, the Escrow Deposit and all accrued interest
thereon shall be delivered to Seller as herein set forth.
(b) The sole responsibility of Title Company shall be to hold and
disburse the Escrow Deposit in accordance with the terms of this Agreement
and, if a dispute shall arise with respect to the disposition of the Escrow
Deposit, the Title Company may continue to hold such funds until receipt of
written instructions acknowledged and agreed to by Buyer and Seller or may
deposit such funds with the applicable court of the county in which the
Project is located and interplead the Buyer and Seller in connection
therewith.
(c) Title Company is authorized and instructed to act as escrow agent
pursuant to the terms of this Agreement. By execution of the acknowledgment
attached hereto, Title Company acknowledges receipt of the Escrow Deposit.
Buyer and Seller shall execute any additional escrow instructions reasonably
required by Title Company to complete the transactions provided for herein
provided that such instructions are not inconsistent with the terms of this
Agreement.
1.6 Prorations. The following prorations shall be made effective as
of the Closing Date and, to the extent possible, shall be made tentatively
at Closing:
a. Proration Date. All prorations shall be made as of 12:01 a.m.,
according to the time zone in which the Assets are located, on the Closing
Date, as if Buyer were vested with title to the Assets during the entire
Closing Date.
b. Taxes. Ad valorem and personal property taxes and assessments
against the Assets for the year of Closing shall be prorated between Seller
and Buyer as of the Closing Date. If actual taxes are unknown, they shall
be prorated based upon the best available information from the local taxing
authority. To the extent that the actual taxes for the current year differ
from the amounts so apportioned at Closing, Seller and Buyer shall make all
necessary adjustments by appropriate payments between themselves following
Closing.
c. Utilities. Charges for utilities serving the Assets shall be
determined as of the day preceding the Closing Date based on a reading of
the meter unless such is not reasonably available in which case it will be
based on the prior month's utility bills, and Seller shall pay the amount
of the utility charges to such date to the utility companies involved or to
Buyer in the event Buyer is responsible for the payment of such utility
charges. All utility deposits of Seller shall belong to Seller.
d. Contract Charges. Charges with respect to Contracts (as defined
below), if any, actually transferred and assigned to Buyer shall be prorated
as of the Closing Date. Payments for obligations under leases of tangible
Personal Property transferred and assigned to Buyer will be prorated as of
the Closing Date. To the extent not reflected in the closing statements
evidencing the Transaction contemplated by this Agreement, Buyer and Seller
agree to adjust between themselves outside of Closing any amounts which are
the responsibility of the other party pursuant to this subsection.
e. General Liabilities. Contractual and tort liabilities accruing,
or relating to events that occurred, prior to the Closing Date shall remain
the responsibility of Seller. Contractual liabilities relating to Contracts
expressly assumed by Buyer and accruing, or relating to events that occur,
from and after the Closing Date, shall be the responsibility of Buyer.
The agreements with respect to prorations in this Section 1.5 shall
survive Closing. Final settlement of all prorated items shall occur on or
before 90 days after the Closing Date, or on the next business day if the
90th day is a Saturday, Sunday or legal holiday, except property taxes
which shall be determined upon the date upon which any such amounts shall
become ascertainable.
1.7 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Assets in the manner reasonably determined by Buyer and
Seller in writing prior to Closing. The parties make this allocation with
the knowledge and understanding that, if requested by Buyer, it will be
used by them for all purposes including federal and state income tax
purposes. Each party agrees that it will report the transactions in
accordance with such allocation and that it will not take a position
inconsistent with such allocation except with the written consent of the
other parties to this Agreement.
1.8 Contesting of Assumed Liabilities; No Third Party Beneficiaries.
Buyer reserves the right to contest in good faith any Assumed Liability.
Seller reserves the right to contest in good faith any liabilities or
obligations not expressly assumed by Buyer pursuant to the terms of this
Agreement. The assumption by Buyer on the Closing Date of any liabilities
hereunder is made for the exclusive benefit of Seller and not for the
benefit of any third party, and such assumption, while creating a liability
of Buyer to Seller hereunder, shall not be deemed to create any liability
of Buyer to any third party. The terms and provisions of this Agreement
are intended solely for the benefit of Buyer and Seller and their
respective successors or assigns, and it is not the intention of the
parties to confer any third-party beneficiary rights upon any other person
or entity.
1.9 Costs of Closing.
a. Seller's Payments. Seller shall pay the cost and expenses, if
any, of the title search and title insurance commitment for the owner's
title insurance policy and one-half of the expenses of the escrow, if any.
b. Buyer's Payments. Buyer shall pay the cost and expenses, if any,
of (i) the fees for recording the deed conveying the Real Property; (ii)
the premium for the owner's and lender's title policy and the cost of all
applicable endorsements thereto; (iii) and one-half of the expenses of the
escrow, if any, and (iv) the cost of the survey, if any.
c. Other Costs. Each party will pay all its own expenses incurred in
connection with this Agreement and the Transactions contemplated hereby,
including, without limitation (i) all costs and expenses stated herein to
be borne by a party, and (ii) all of their respective consulting,
accounting, investigation, legal and appraisal fees.
1.10 Inspection. Purchaser and/or its attorneys, consultants or
employees ("Authorized Representatives") have: made a physical inspection
of all Assets and to the extent Purchaser deemed necessary contacted and
confirmed with third parties the nature, scope and status of all Contracts
to be assigned to and assumed by Buyer, if any. All such inspections shall
be conducted at Buyer's sole expense. Buyer and/or Buyer's agents and
representatives shall have the right to conduct any and all such physical,
environmental and other inspections, reviews and other analysis as Buyer
considers to be appropriate relating to the Assets. Seller shall cooperate
with all such inspections and provide Buyer and/or its agents and
representatives with access to all assets, books and records in order to
facilitate the foregoing. Notwithstanding the foregoing, Buyer shall not
be permitted to interfere unreasonably with Seller's operations and the
scheduling of any inspections, interviews, and/or testing shall be at
reasonable times during normal business hours and shall take into account
the timing and availability of access to the applicable information and
property. Buyer shall at all times conduct such due diligence in
compliance with applicable laws, and in a manner so as to not cause undue
damage, loss, cost or expense to Seller or the Assets, and Buyer shall
promptly restore the Assets to their condition immediately preceding such
inspections and examinations and shall keep the Assets free and clear of
any mechanic's liens or materialmen's liens in connection with such
inspections and investigations. Seller shall have the right, at its
option, to cause a representative of Seller to be present at all such
inspections, reviews and examinations. Buyer shall keep all information
or data received or discovered in connection with such due diligence
strictly confidential. Buyer shall indemnify, protect, defend and hold
Seller harmless from and against any obligation, liability, claim
(including any claim for damage to property or injury to or death of any
persons), lien or encumbrance, loss, damage, cost or expense, including
attorneys' fees (collectively, the "Loss"), in any way caused by the
inspections or examinations of the Assets by Buyer or its agents or
contractors. The foregoing indemnification shall terminate upon the first
anniversary of the Closing but shall survive the termination of this
Agreement for any reason.
ARTICLE 2
TITLE MATTERS
2.1 Title Report/Commitment for Title Insurance. Seller hereby
instructs Title Company to prepare and deliver to Buyer, Seller and the
surveyor, if any, at Seller's expense, within ten (10) business days after
the Effective Date a commitment to issue an owner's and if applicable a
lender's title insurance policy to be issued by a title company reasonably
acceptable to Buyer (the "Initial Title Commitment") covering the Real
Property, showing all matters, including, without limitation, any
environmental liens of record, affecting title to the Real Property and
binding Title Company to issue to Buyer at Closing an owner's policy of
title insurance on an ALTA (1992 form) extended form of policy in the
amount of the Purchase Price applicable to the real property and
improvements. Upon receipt of Seller's Closing Notice, Seller shall
instruct Title Company to prepare and deliver to Buyer, Seller and the
surveyor, if any, described below, at Seller's expense, within ten (10)
business days after the Closing Notice Date, an updated commitment to
issue an owner's title insurance policy to be issued by the Title Company
(the "Updated Title Commitment") covering the Real Property, showing all
matters affecting title to the Real Property and binding Title Company to
issue to Buyer at Closing an owner's policy of title insurance on an ALTA
(1992 form) extended form of policy in the amount of the Purchase Price
applicable to the real property and improvements. Seller and Buyer further
instruct Title Company to deliver to all such parties copies of all
instruments referenced in Schedule B, Section II of each of the Title
Commitments.
2.2 Survey. Within ten (10) days after the Effective Date, Buyer
may, at its expense and at its option, order a survey or an update to a
survey and shall use reasonable efforts to cause such survey to be
delivered to Seller and Title Company within ten (10) business days after
the Effective Date. Such survey may at the option of Buyer and its lender
be either a Class B or a Class A ALTA/ASCM land title survey of the Land
and of the Improvements situated thereon (the "Initial Survey"), prepared
by a surveyor licensed by Mississippi and certified to Seller, Buyer and
Title Company by such surveyor. Within ten (10) days after the Closing
Notice Date, Seller may, at its expense and at its option, order an update
to the Initial Survey ("Updated Survey") and shall use reasonable efforts
to cause such Updated Survey to be delivered to Buyer and Title Company
within ten (10) business days after the Closing Notice Date. Seller shall
provide at Closing a certificate to Buyer and Title Company, if requested,
that there have been no improvements made to the Real Property since the
date of the Initial Survey which would materially alter the depictions on
the Initial Survey.
2.3 Title Defects. Within ten (10) days after receipt of the later
of the Initial Title Commitment and the Initial Survey, if any, Buyer shall
notify Seller of any title matters to which Buyer objects (the "Title
Defects") ("Buyer's Notice"). Any matter disclosed in a Title Commitment
or Survey and not objected to by Buyer or subsequently waived by Buyer
shall be deemed a permitted exception ("Permitted Exception"). Seller
shall notify Buyer of Seller's decision not to cure any Title Defect within
ten (10) days after receipt of Buyer's Notice; provided, however, Seller
shall remove monetary liens relating to borrowed funds or other liens
securing indebtedness of an ascertainable amount and mechanic or
materialmen's liens, if any. Seller's failure to respond shall be deemed
a decision by Seller not to cure any Title Defect. Within ten (10) days
of Seller's election not to cure certain Title Defects, Buyer may (i) elect
to waive such Title Defects or (ii) terminate this Agreement and receive a
full refund of the Escrow Deposit. Buyer's failure to respond shall be
deemed a decision by Buyer to waive any and all Title Defects. If the
Title Defects, that Seller elected to cure, are not cured by Seller or
waived by Buyer on or before the Closing Date then Buyer may (i) elect
to waive the uncured Title Defects or (ii) terminate this Agreement and
receive a full refund of the Escrow Deposit. Within ten (10) days after
receipt of the later of the Updated Title Commitment and the Updated Survey,
if any, Buyer shall notify Seller of any title matters not reflected on the
Initial Title Commitment or Initial Survey to which Buyer objects (the "New
Title Defects") ("Update Notice"). Any new matter not objected to by Buyer
or subsequently waived by Buyer shall be deemed a Permitted Exception.
Seller shall notify Buyer of Seller's decision not to cure any New Title
Defect within ten (10) days after receipt of Buyer's Title and Survey
Notice; provided, however, Seller shall remove or bond around monetary
liens relating to borrowed funds or other liens securing indebtedness of an
ascertainable amount and mechanic or materialmen's liens, if any. Seller's
failure to respond shall be deemed a decision by Seller not to cure any New
Title Defect. Within five (5) days of Seller's election not to cure
certain New Title Defects, Buyer may elect to waive such New Title Defects,
or, if the New Title Defect involves a monetary lien or obligation or
otherwise has a material adverse effect on the Assets, Buyer may terminate
this Agreement and receive a full refund of the Escrow Deposit. Buyer's
failure to respond shall be deemed a decision by Buyer to waive the New
Title Defects to which Seller decides not to cure. If the New Title Defects
that Seller elected to cure are not cured by Seller or waived by Buyer on
or before the Closing Date then Buyer may elect to waive the uncured New
Title Defects or, if the New Title Defect involves a monetary lien or
obligation or otherwise has a material adverse effect on the Project, Buyer
may terminate this Agreement and receive a full refund of the Escrow
Deposit. Notwithstanding anything herein to the contrary, any lien that
may be discharged by the payment of money may be paid and discharged at
Closing out of the proceeds of the Purchase Price.
2.4 Title Insurance. At Closing, Seller and Buyer shall instruct]
Title Company to issue a final update to the Title Commitment in which the
"GAP" exception has been deleted, binding Title Company to issue to Buyer
an owner's policy and if applicable a lender's policy of title insurance
(the "Title Policy") covering the Real Property in the full amount of the
Purchase Price. In addition, Title Company shall, if requested, provide an
insured closing letter verifying the authority of the applicable agent of
the Title Company. The Title Policy shall be an ALTA Form 1992 owner's or
lender's policy of extended coverage title insurance with the creditor's
rights exception deleted containing such endorsements as may be reasonably
requested by Buyer and agreed to by Title Company subject only to: (a)
current non-delinquent real estate taxes and assessments; (b) matters set
forth in the Title Commitment and approved or waived by Buyer; (c) any
other matters approved in writing by Buyer; (d) title exceptions caused
by acts or omissions of Buyer; and (e) matters excepted or excluded from
coverage by the printed terms of the title insurance policy's standard
jacket form. The standard exceptions such as survey and mechanics and
materialmen's lien shall be deleted.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF SELLER
Seller hereby represents and warrants to Buyer that the following
matters are true as of the date of executing this Agreement and will be
true at Closing:
3.1 Organization and Qualification. Seller (i) is a corporation
duly organized, validly existing and in good standing under the laws of
Mississippi, and (ii) has the power and authority to execute, deliver and
perform this Agreement and the transactions contemplated hereby.
3.2 Binding Agreement. Subject to the prior approval of the
shareholders of Seller, the execution, delivery and performance of this
Agreement has been duly authorized by all necessary action by Seller and
constitutes the legal, valid and binding obligation of Seller, enforceable
in accordance with its terms. Such shareholder approval is a condition
precedent to the consummation of the transactions contemplated hereby other
than the lease of the Real Property as contemplated hereby.
3.3 No Violation. Neither the execution and delivery of this
Agreement, nor the performance by Seller of its obligations hereunder nor
the consummation of the transactions contemplated hereby will (a) violate,
be in conflict with, constitute a default under, permit the termination of,
or cause the acceleration of the maturity of any debt or obligation of
Seller which violation, conflict, default, termination or acceleration
individually or in the aggregate with all such other violations, conflicts,
defaults, terminations and accelerations would have a material adverse
effect on the Assets or on any of the Contracts (as defined below); (b)
require the consent of any other person (other than the shareholders of
Seller) to, constitute a breach of any agreement, permit, license or
commitment to which Seller is a party or by which they or any of its
property is bound (which individually or in the aggregate with all other
such breaches would have a material adverse effect on the Assets); (c)
result in the creation or imposition of any lien upon any of Seller's
Assets under any agreement or commitment to which Seller is a party or by
which it is bound which would have a material adverse effect upon the
Assets; or (d) violate any statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority to which Seller
is subject.
3.4 Absence of Certain Changes. Except as set forth on Schedule 3.4,
since July 1, 2000, there has not been (i) any change in the Assets other
than changes in the ordinary course of business, none of which has been
materially adverse; or (ii) any other event or condition of any character
which, individually or in the aggregate, materially and adversely affects
the Assets. Buyer acknowledges that Seller will be selling its entire
inventory of fish to third parties prior to Closing and in connection
therewith abandoning certain areas of the Real Property as determined by
seller in its sole discretion.
3.5 Litigation or Proceeding. There is no suit, claim, action or
investigation pending or, to the best knowledge of Seller, threatened by
or against Seller affecting the Assets, before any federal, state,
municipal or other governmental court, department, commission, board,
bureau, agency or instrumentality wherever located, which possibly could
prevent the consummation of the transactions contemplated by this Agreement
or adversely affect Buyer's enjoyment of or diminish the value of the Assets.
3.6 Contracts. Attached hereto as Exhibit 3.6(a) (Contracts Schedule)
is a list of all contracts and leases affecting or relating in any material
manner to the Assets (collectively, the "Contracts"). Except for contracts
listed in Exhibit 3.6(a), there are no contracts, leases or agreements of
any nature, either oral or written, affecting or relating in any material
manner to Seller or the Assets or any part thereof. All of the Contracts
contain the entire agreement of the parties thereto, are in full force and
effect in accordance with their respective terms, and to the best of
Seller's knowledge, no event exists which, with notice or the passage of
time or both, would constitute an event of default by Seller or any other
party thereunder. No party to any Contract has threatened to cancel or
terminate such Contract or to Seller's knowledge alleged any default or
event which, with notice or passage of time or both, would constitute an
event of default under any such Contract. In addition, to Seller's
knowledge, no party to any such Contract has any counterclaim, defense
or offset relating in any manner thereto. No Contract or any right or
portion thereof has been assigned, encumbered or subjected to any liens
by Seller, except to lenders whose liens shall be released at Closing.
No Contracts have been amended or modified and no terms have been waived
in any manner except as set forth on Exhibit 3.6(a). Seller has paid in
full all payments required by the terms of the Contracts to be paid prior
to the date hereof. True and complete copies of all agreements, contracts,
arrangements, plans and other things referred to in Exhibit 3.6(a) have
been delivered to Buyer.
3.7 Title to Assets. Seller has good, valid and marketable title to
its Assets and the Assets are held by Seller and will be transferred to
Buyer free and clear of any liens, encumbrances, restrictions or equitable
rights of any other party, except for the Permitted Exceptions. A list of
all material Assets are contained on Exhibit 1.1(a) attached hereto.
3.8 Compliance with Law and Regulations. To the best of Seller's
knowledge, the Assets, and the use and operation thereof are in material
compliance with all applicable federal, state, municipal and other
governmental laws, ordinances, rules, regulations, licenses, permits and
authorizations (collectively, the "Laws or Regulations"). To the best of
Seller's knowledge, Seller has not received any notice or been made aware
of any charge asserting any violation of any such Laws or Regulations.
3.9 Use of Assets. To Seller's knowledge, (i) no governmental,
public or private authority intends or desires to appropriate the use of
or limit the use of any of the Assets pursuant to any condemnation, eminent
domain or similar proceeding; (ii) no fact or condition exists which will
result in the termination of the Seller's current access to and from
existing streets and utilities.
3.10 FIRPTA. Seller is not a "foreign person" (as defined in the
Internal Revenue Code and Income Tax Regulations). The provisions of the
Foreign Investment in Real Property Tax Act of 1980, as amended, are not
applicable to the Transaction.
3.11 Payments. To the best of Seller's knowledge, Seller has not,
directly or indirectly, paid or delivered or agreed to pay or deliver any
fee, commission or other sum of money or item of property, however
characterized, to any government official or representative in any manner
related to the Assets which is illegal under any federal, state or local
law.
3.12 Employees. Exhibit 3.12(a) (Current Employees) sets forth a
current schedule of all full and part-time employees of Seller, setting
forth in respect of each their position, duties, current salary or wages.
Seller is not a party to or bound by any employment agreement or any
collective bargaining agreement respecting employees, nor to the best of
Seller's knowledge are there pending or threatened any strike, walkout or
other work stoppage or any union organizing effort relating to the Assets.
There is no unfair practice claim against Seller before the National Labor
Relations Board, or any strike, dispute, slowdown, or stoppage pending or
threatened against or involving the Assets. Seller is in material
compliance with all federal and state laws respecting employment and
employment practices, terms and conditions of employment, and wages and
hours. There are no pending or, to the best of Seller's knowledge,
threatened EEOC claims, wage and hour claims, unemployment compensation
claims, workers' compensation claims or the like against Seller.
3.13 Absence of Creditors' Arrangements or Proceedings. Seller has not
made any arrangement with Seller's creditors other than in the ordinary
course of business, nor have any involuntary or voluntary proceeding been
instituted against or by Seller or relating to any of their property under
any bankruptcy, insolvency or similar law.
3.14 Inventory. The Assets do not include any inventory of Seller of
any type, including, without limitation, fingerlings, broodfish, foodfish
or feed, supplies or chemicals of any type. Seller will undertake to
dispose of its inventory prior to Closing in such manner as Seller deems
appropriate in its sole and absolute discretion.
3.15 Shares. Buyer is the sole holder of record, beneficial or
otherwise, of all of the Shares. Except for the restrictions and
encumbrances established by Producer's Feed's Articles of Incorporation
and other organizational documents, noted on the face of the certificate
and under applicable federal and state securities laws and regulations,
the Shares are free and clear of any restriction, pledge, claim, lien,
security interest or encumbrance thereon or affecting the title thereto.
Other than Producer's Feed and as noted on the certificate, no other person
owns or has any other rights with respect to the Shares. To the best of
Seller's knowledge, no Shares have been issued or transferred in violation
of any preemptive or other rights of any person, or any laws or regulations
of any governmental authority to which such issuance or transfer may have
been subject. There are no outstanding obligations or commitments to
purchase, redeem or otherwise acquire any of the Shares, except for this
Agreement.
3.16 No Other Buyer Representations. Except as expressly set forth
herein, Seller acknowledges that no representations or warranties, express
or implied, have been made by Buyer or Buyer's representatives.
3.17 Knowledge Standard. As used in this Agreement, "to Seller's
knowledge", "to the best of Seller's knowledge" or any similar phrase,
shall mean the current actual knowledge of Tom Slough and Jayne Dew;
provided, however, that nothing in this Agreement shall be deemed to
create or impose any personal liability of any kind on either of them.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the following matters are
true as of the date executing this Agreement and will be true as of Closing:
4.1 Corporate Organization; Etc. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Mississippi and has full corporate power and authority to carry
on its business as now being conducted.
4.2 Authorization of Agreement. The execution, delivery and
performance of this Agreement has been duly authorized by all necessary
corporate action by Buyer and constitutes the legal, valid and binding
obligation of Buyer, enforceable in accordance with its terms.
4.3 No Violation. Neither the execution and delivery of this
Agreement, nor the performance by Buyer of its obligations hereunder nor
the consummation of the transactions contemplated hereby will (a) violate,
be in conflict with, constitute a default under, permit the termination of,
or cause the acceleration of the maturity of any debt or obligation of
Buyer which violation, conflict, default, termination or acceleration
individually or in the aggregate with all such other violations, conflicts,
defaults, terminations and accelerations would have a material adverse
effect on Buyer; (b) except as set forth in Exhibit 4.3 (No Consent or
Violation), require the consent of any other person to, constitute a breach
of any agreement or commitment to which Buyer is a party or by which it or
any of its property is bound (which individually or in the aggregate with
all other such breaches would have a material adverse effect on Buyer);
(c) result in the creation or imposition of any lien upon any of Buyer's
assets under any agreement or commitment to which Buyer is party or by
which it is bound which would have a material adverse effect upon Buyer;
or (d) violate any statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority to which Buyer
is subject.
4.4 Litigation or Proceeding. There is no suit, claim, action or
investigation pending or, to the best knowledge of Seller, threatened by or
against Seller affecting the Assets, before any federal, state, municipal or
other governmental court, department, commission, board, bureau, agency or
instrumentality wherever located, which possibly could prevent the
consummation of the transactions contemplated by this Agreement or adversely
affect Buyer's enjoyment of or diminish the value of the Assets.
4.5 Consents and Approvals of Governmental Authorities. Buyer has
obtained, or prior to Closing will obtain, all consents, approvals or
authorizations of, or declarations, filings or registrations with, all
governmental or regulatory authorities or other persons required to be made
or obtained by Buyer in connection with the execution, delivery and
performance of this Agreements.
4.6 Financial Statements. Pro forma Financial Statements for the
current year reflecting the financial condition of Buyer, including,
without limitation, the balance sheet of Buyer (collectively, the "Buyer's
Financial Statements"), have been prepared in accordance with general
accepted accounting principles consistently applied except as disclosed in
the accountant's statement contained therein. A copy of which is attached
hereto as Exhibit 4.6.
4.7 Inspection. Buyer has made an independent investigation, to the
extent Buyer deems necessary or appropriate, concerning the physical
condition, value, development, use, marketability, feasibility and
suitability of the Project, including, without limitation, land use, zoning
and other governmental restrictions.
4.8 Acquisition for Investment Purposes. Buyer has such knowledge
and experience in financial and business matters that it is capable of
evaluation of the merits and risks associated with this Transaction and the
Shares. Buyer is acquiring the Shares in a private transaction, solely for
its own account for the purpose of investment and not as a nominee or agent
for any other person and not with a view to, or for offer or sale in
connection with, any distribution of any Shares (other than in a
transaction which is either registered under the Securities Act or exempt
from such registration, and in compliance with all applicable Blue Sky or
state securities laws or exempt therefrom). Buyer agrees and acknowledges
that it will not, directly or indirectly, offer, transfer, sell, assign,
pledge, hypothecate or otherwise dispose of (hereinafter, "Transfer") any
of the Shares unless such Transfer is either (i) pursuant to an effective
registration statement under the Securities Act and qualification or other
compliance under applicable Blue Sky or state securities laws, or (ii) exempt
from registration under the Securities Act and applicable Blue Sky or state
securities laws.
4.9 No Other Seller Representations. Except as expressly set forth
herein, Buyer acknowledges that no representations or warranties, express
or implied, have been made by Seller or Seller's representatives.
4.10 "AS IS, WHERE IS". BUYER HEREBY EXPRESSLY ACKNOWLEDGES THAT IT
HAS INSPECTED AND EXAMINED OR WILL INSPECT AND EXAMINE THE ASSETS TO THE
EXTENT DEEMED NECESSARY BY BUYER IN ORDER TO ENABLE BUYER TO EVALUATE THE
PURCHASE OF THE ASSETS. BUYER REPRESENTS THAT IT IS A KNOWLEDGEABLE BUYER
OF CATFISH FARMS INCLUDING RELATED IMPROVEMENTS, EQUIPMENT AND FACILITIES
AND THAT, EXCEPT AS SET FORTH IN ARTICLE 3, IT IS RELYING SOLELY ON ITS
OWN EXPERTISE AND THAT OF BUYER'S CONSULTANTS, AND THAT BUYER HAS CONDUCTED
OR WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE ASSETS AS BUYER
IN ITS SOLE DISCRETION DEEMS NECESSARY OR APPROPRIATE, INCLUDING, BUT NOT
LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF. BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS ACQUIRING THE ASSETS ON AN
"AS IS, WHERE IS" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OTHER THAN
THOSE SET FORTH HEREIN AND IN THE DOCUMENTS OF TRANSFER RELATING TO THIS
TRANSACTION.
ARTICLE 5
COVENANTS OF SELLER
Seller hereby covenants and agrees as follows:
5.1 Operations of Seller. At all times prior to Closing, Seller shall
(i) maintain the Assets in good repair and working order for the efficient
operation and management of the Assets, (ii) enter into no contract or
other transaction affecting the Assets other than in the ordinary course
of business without the prior written consent of Buyer, (iii) perform when
due all of Seller's obligations and other agreements relating to the Assets
in accordance with applicable agreements, laws, ordinances, rules and
regulations. None of the Assets shall be permanently removed from Seller's
principal place of business, unless replaced by personal property or
fixtures of equal or greater utility and value. Seller shall use
commercially reasonable efforts to liquidate its entire fish inventory to
third parties prior to thirty (30) months after the Effective Date in such
a manner as Seller determines in its sole and absolute discretion. Seller
may at any time and from time to time relocate its fish inventory to any
ponds located on the Real Property which are not then subject to a Lease
with Buyer.
5.2 Change in Condition. Seller shall promptly notify Buyer of any
change in any condition with respect to the Assets or of any event or
circumstance which makes any representation or warranty of Seller to Buyer
under this Agreement untrue or misleading in any material respect, or any
covenant of Seller under this Agreement incapable or less likely of being
performed, it being understood that Seller's obligation to provide notice to
Buyer under this Section 5.2 shall in no way relieve Seller of any
obligations with respect to its representations, warranties or covenants
under this Agreement.
5.3 Insurance. The existing insurance policies relating to Seller
shall remain continuously in force through the day of Closing.
5.4 Payment of Liabilities. Seller has paid or will pay in the
ordinary course of business and in accordance with past practice all bills
and invoices for labor, goods, material and services of any kind relating
to the Business or the Assets, utility charges, and employee salary and
other accrued benefits relating to the period prior to Closing. Seller
reserves the right to contest any such liabilities or obligations in good
faith.
5.5 Notification of Subsequent Events. Prior to Closing, Seller
shall notify Buyer of any written notice received by Seller of any material
adverse change in or to the Assets including, without limitation, any
notice relating to any insurance contract or policy now held or owned by
Seller to cancel or materially increase any premiums relating thereto.
5.6 Environmental Study. Seller will reasonably assist and cooperate
with any environmental evaluation, study or audit of the Purchased Assets,
prepared by, for or at the request of Buyer, at no cost to Seller.
5.7 Post Closing Transactions. For a period of 180 days following
Closing, Seller shall not dividend or distribute to Seller's shareholder
the proceeds hereof. The foregoing shall not restrict Seller in any manner
from paying any and all of its contractual liabilities or obligations in
full immediately at or after Closing, including any and all liabilities
and indebtedness to Delta Industries, Inc., an affiliates of Seller. In
addition, The foregoing shall not restrict Seller in any manner from
conveying and/or distributing any of the Excluded Assets at any time and
in any manner, for or without value.
5.8 Representations and Warranties. Seller will not take any action
and will not permit any action to be taken which would cause any of their
representations and warranties set forth herein to be untrue as if such
warranties and representations were made on and as of the Closing Date.
5.9 Alienation of Assets. Seller will not enter into or conduct any
discussions with prospective Buyers of the Assets or sell, lease, subject
to liens, encumber or otherwise transfer any interest in any of the Assets
(except for retirements and replacements in the ordinary course of business,
provided that all items which are retired or replaced are contemporaneously
replaced by items of substantially equivalent or greater value).
5.10 Mortgages. Seller will not create or incur, or acquiesce in the
creation, incurrence or existence of, any new mortgage, deed to secure debt,
deed of trust, lien, pledge, charge, security interest or other encumbrance
which affects the Assets.
5.11 Employees. Buyer intends to offer employment to certain of those
persons employed by Seller relating to the Business immediately after the
Closing, contingent to the extent permitted by law, upon successful
completion after Closing of Buyer's drug, alcohol and other standard testing
procedures. Seller shall terminate all of its employees who are employed in
connection with the Business and shall fully satisfy any and all liabilities
or obligations due and payable to its employees, including, without
limitation, sick leave, severance, ERISA Plans or other accrued benefits
which Seller may owe to its employees as a result of such termination.
Seller further agrees to satisfy or cause its insurance carriers to satisfy
all claims for benefits, whether insured or otherwise (including, without
limitation, workers' compensation, life insurance, medical and disability
programs), relating to Seller's employees, which claims arise out of events
occurring prior to the Closing Date. Seller reserves the right to contest
any such liabilities or obligations in good faith.
ARTICLE 6
COVENANTS OF BUYER
Buyer hereby covenants and agrees as follows:
6.1 Affected Employees. "Affected Employees" shall mean all employees
of Seller who are subsequently employed by Buyer immediately after the
Closing. Buyer intends to offer employment to a significant number of
persons currently employed by Seller in connection with the Business on the
Closing Date. Seller and Buyer acknowledge and agree that all employees of
Seller shall be terminated as of the Closing Date and that Buyer intends to
hire a portion of the employees promptly after Closing. Buyer shall have
the sole and exclusive right and obligation as the owner and operator of the
Business to make all such hiring decisions. Notwithstanding anything
contained herein to the contrary, Delta Industries, Inc. or its affiliates
("Delta") shall have the right to hire any employees of the Company to whom
it elects to offer employment; provided, however, Delta shall not hire the
following specific individuals for a period of one year after Closing: James
Shiers and Sammy Luke.
6.2 Financial Statements. Buyer shall deliver to Seller Buyer's
Financial Statements.
ARTICLE 7
CONDITIONS TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to close shall be subject to the satisfaction of
the following conditions at or prior to Closing unless waived by Buyer:
7.1 Representations and Warranties True at Closing. Seller shall
deliver to Buyer at Closing a certificate of Seller to the effect that
all representations and warranties set forth herein are true and correct
in all material respects as of the date of Closing, that all covenants of
Seller set forth herein have been duly performed in all material respects,
and that all conditions to the obligations of Seller set forth in Article 8
have been satisfied as of the Closing, in the form attached hereto as
Exhibit 7.1 (Seller's Closing Certificate).
7.2 Compliance with Agreement. Seller shall have performed and
complied in all material respects with all their obligations under this
Agreement which are to be performed or complied with prior to or at the
Closing.
7.3 No Adverse Change. The Assets shall not have been adversely
affected in any material manner such as would prohibit their use as a fish
farm.
7.4 Litigation. No litigation or other proceeding shall have been
commenced or threatened against Buyer or Seller which, in the opinion of
Buyer, would adversely affect its enjoyment of the Assets or the ability
of any party to close the transactions contemplated hereby.
7.5 Opinion of Counsel. Buyer shall have received an opinion, dated
the date of the Closing, addressed to Buyer from counsel to Seller,
containing the opinions set forth in Exhibit 7.5.
7.6 Evidence of Authority. Buyer shall have received evidence of
existence, organization and authority of Seller (including shareholder
approval) reasonably satisfactory to Buyer and its counsel, including,
without limitation an Officer's Certificate and Incumbency Certificate
in the form attached hereto as Exhibit 7.6 (Seller Officer's Certificate).
7.7 Closing Documents. Seller shall have delivered to Buyer (a) such
endorsements, assignments, undertakings and other good and sufficient
instruments of transfer, in form and substance satisfactory to Buyer and
its counsel, as shall be necessary to vest good and marketable title to
the Assets in Buyer, including, without limitation, the original
certificates evidencing the Shares duly endorsed for transfer to Buyer,
Warranty Deed, Special Warranty Bill of Sale and Assignment and Assumption
Agreements each in the form attached hereto as Exhibit 7.7 (Conveyance
Documents), (b) copies of all of Seller's Contracts being assigned to Buyer,
if any, and (c) such other documents as may be necessary to put Buyer in
actual possession and operating control of the Assets. Seller shall make
the originals of all such documents available to Buyer for inspection during
reasonable business hours upon reasonable prior notice.
7.8 Possession of Assets. Subject to the Permitted Exceptions, Buyer
shall have full and unrestricted right to possession of the Assets at
Closing, and Seller shall deliver possession of the Assets to Buyer.
ARTICLE 8
CONDITIONS TO SELLER'S OBLIGATIONS TO CLOSE
Seller's obligation to close shall be subject to the satisfaction of
the following conditions at or prior to Closing unless waived by Seller:
8.1 Shareholder Approval. Seller shall have received unconditional
approval of the transactions contemplated hereby from its shareholders and
further provided that less than one percent (1%) of Seller's shareholders
exercise their rights to dissent to the transaction and receive fair value
for their shares pursuant to Article 13 of the Mississippi Business
Corporation Act.
8.2 Payment of Purchase Price. Buyer shall have paid the Purchase
Price at Closing as provided in Section 1.3 hereof.
8.3 Representations and Warranties True at Closing. Buyer shall
deliver to Seller at Closing a certificate of Buyer to the effect that all
representations and warranties set forth herein are true and correct in all
material respects as of the date of Closing, that all covenants of Buyer set
forth herein have been duly performed in all material respects, and that all
conditions to the obligations of Buyer set forth in Article 7 have been
satisfied as of the Closing, in the form attached hereto as Exhibit 8.3
(Buyer's Closing Certificate).
8.4 Compliance with Agreement. Buyer shall have performed and
complied with all its obligations under this Agreement in all material
respects which are to be performed or complied with by it prior to or at
the Closing.
8.5 Litigation. No litigation or other proceeding shall have been
commenced or threatened against Seller or Buyer which, in the opinion of
Seller, would adversely affect Seller's ability to consummate the
transaction contemplated hereby.
8.6 Opinion of Counsel. Seller shall have received an opinion, dated
the date of the Closing, addressed to Seller from counsel to Buyer,
containing the opinions set forth in Exhibit 8.6.
8.7 Evidence of Authority. Seller shall have received evidence of
existence, organization and authority of Buyer reasonably satisfactory to
Seller and their counsel, including, without limitation an Officer's
Certificate and Incumbency Certificate in the form attached hereto as
Exhibit 8.7 (Buyer's Officer's Certificate).
8.8 Instruments Relating to the Seller Financing and Transfer. Buyer
shall have delivered to Seller (a) such instruments of transfer, including,
without limitation, (a) Assignment and Assumption Agreement(s) in the form
attached hereto; (b) the Note and related Security Documents, in a form
acceptable to Seller; and (c) such other documents as may be reasonably
necessary to close the transactions contemplated hereby.
8.9 Buyer's Financial Statements. Seller shall have received prior
to Closing updated Buyer's Financial Statements which shall reflect a net
worth of not less than $300,000.00 for Buyer.
ARTICLE 9
CLOSING; TERMINATION; POST CLOSING
9.1 Closing. Seller shall designate the Closing Date by providing
written notice to Buyer that Seller has completed the liquidation of its
inventory and that Seller is prepared to deliver possession of all of the
Real Property to Buyer ("Closing Notice"), which shall be effective upon
Buyer's receipt thereof ("Closing Notice Date"). The Closing shall take
place at the offices of the Forman, Perry, Watkins, Krutz & Tardy, PLLC on
such date and at such time as may be fixed by mutual agreement of the
parties, but no event later thirty (30) days after the Closing Notice Date
("Closing" or "Closing Date"). In no event shall the Closing Notice,
Closing Notice Date or the Closing Date occur later than December 31, 2002.
9.2 Termination. At any time before the Closing, this Agreement may
be terminated (i) by mutual consent of the parties, (ii) by Buyer if there
has been a material misrepresentation, material breach of warranty or
material breach of covenant by Seller, (iii) by Seller if there have been
a material misrepresentation, material breach of warranty or material breach
of covenant by Buyer, (iv) by Buyer if any condition set forth in Article 7
has not been satisfied at or before the Closing or (v) by Seller if any
condition set forth in Article 8 has not been satisfied at or before the
Closing.
9.3 Breach by Buyer. IF BUYER DEFAULTS UNDER ANY PROVISION OF THIS
AGREEMENT AND CLOSING DOES NOT OCCUR, THEN SELLER SHALL BE RELEASED FROM
ALL OBLIGATIONS AT LAW OR IN EQUITY TO CONVEY THE ASSETS TO BUYER. BUYER
AND SELLER AGREE THAT AS SELLER'S SOLE REMEDY FOR A DEFAULT HEREUNDER, BY
WRITTEN NOTICE TO BUYER, SELLER SHALL BE ENTITLED TO TERMINATE THIS
AGREEMENT AND BE ENTITLED TO RECEIVE THE ESCROW DEPOSIT PLUS ACCRUED
INTEREST THEREON AS LIQUIDATED DAMAGES. BUYER AND SELLER ACKNOWLEDGE AND
AGREE THAT ACTUAL DAMAGES WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO
ASCERTAIN. THEREFORE, THE SUM REPRESENTED ABOVE SHALL BE DEEMED TO
CONSTITUTE A REASONABLE ESTIMATE AND AGREED STIPULATION OF SELLER'S DAMAGES
SHALL CONSTITUTE SELLER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT THIS
TRANSACTION FAILS TO CLOSE AS A RESULT OF BUYER'S DEFAULT.
NOTWITHSTANDING THE FOREGOING, BUYER'S LIABILITY UNDER SECTION 7.1 HEREOF
SHALL BE UNAFFECTED AND SHALL REMAIN IN FULL FORCE AND EFFECT.
9.4 Breach by Seller. IN THE EVENT THAT SELLER FAILS TO PERFORM ALL
OF SELLER'S OBLIGATIONS UNDER THIS AGREEMENT AND BUYER PERFORMS ALL OF ITS
OBLIGATIONS OR TENDERS PERFORMANCE, INCLUDING THE OBLIGATION TO CONSUMMATE
THE TRANSACTION, THEN BUYER MAY MAKE WRITTEN DEMAND TO SELLER FOR
PERFORMANCE OF THIS AGREEMENT. IF SELLER FAILS TO COMPLY WITH BUYER'S
WRITTEN DEMAND WITHIN 10 DAYS AFTER RECEIPT OF SUCH WRITTEN DEMAND FOR
PERFORMANCE, BUYER SHALL HAVE THE EXCLUSIVE RIGHT TO (I) WAIVE SUCH
DEFAULT, (II) SEEK SPECIFIC PERFORMANCE OF SELLER'S OBLIGATIONS UNDER THIS
AGREEMENT, OR (III) TERMINATE THIS AGREEMENT AND BE ENTITLED TO A REFUND
OF THE ESCROW DEPOSIT PLUS ALL ACCRUED INTEREST THEREON AND PAYMENT BY
SELLER OF AN AMOUNT NOT TO EXCEED $30,000 IN ORDER TO REIMBURSE BUYER'S
ACTUAL OUT OF POCKET EXPENSES ASSOCIATED WITH THIS TRANSACTION, BUT WITHOUT
FURTHER LIABILITY ON SELLER'S PART. SELLER AGREES THAT THE PROJECT IS
UNIQUE AND THAT DAMAGES FOR FAILURE BY SELLER TO CONSUMMATE THE TRANSACTION
WILL BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO DETERMINE. THEREFORE, IN
THE EVENT THAT SELLER FAILS OR REFUSES TO CONSUMMATE THE TRANSACTION AND
BUYER SEEKS SPECIFIC PERFORMANCE, SELLER SPECIFICALLY AGREES THAT THE REMEDY
OF SPECIFIC PERFORMANCE IS AN APPROPRIATE REMEDY FOR BUYER, AND SELLER
WAIVES AND AGREES NOT TO ASSERT ANY CLAIM OR DEFENSE THAT SPECIFIC
PERFORMANCE IS NOT AN APPROPRIATE REMEDY FOR BUYER.
9.5 Knowledge as a Defense. Seller shall have no liability with
respect to a breach of the covenants, representations and warranties of
Seller set forth in this Agreement or any documents delivered pursuant
hereto to the extent that Buyer proceeds with the Closing of the transaction
contemplated with actual knowledge of any such breach or such breach was
otherwise disclosed or known to Buyer at or prior to Closing.
9.6 Post-Closing Deliveries. After the Closing, each party to this
Agreement shall, at the request of the other, furnish, execute and deliver
such documents, instruments, certificates, notices or other further
assurances as the requesting party shall reasonably request as necessary
or desirable to effect complete consummation of this Agreement and the
transactions contemplated hereby.
ARTICLE 10
RISK OF LOSS
10.1 Risk of Loss. The risk of loss or damage to the Assets by fire,
or other casualty, or condemnation, prior to Closing, is assumed by Seller.
Seller shall maintain in full force and effect all insurance policies
currently covering the Assets until Closing. In the event that, prior to
Closing, the Assets, or any substantial part thereof, are destroyed or
materially damaged, Seller must deliver to Buyer written notice of such
event within ten (10) days of Seller's learning of such events, and Buyer
shall have the right, exercisable by giving notice of such decision to
Seller within fifteen (15) days after receiving notice of such damage or
destruction, to terminate this Agreement and receive a full refund of the
Escrow Deposit, in which case, except as expressly provided herein,
neither party shall have any further rights or obligations hereunder.
If Buyer elects to accept the Assets in their then condition, all proceeds
of insurance awards payable to Seller by reason of such damage or
destruction shall be paid or assigned to Buyer and Buyer shall receive a
credit in the amount of the deductible under Seller's insurance policy.
In the event of non-material (less than $50,000) damage to the Assets,
which damage Seller is unwilling to repair or replace, Buyer shall have to
accept the Assets in their then condition and proceed to close without any
reduction to the Purchase Price. It being the understanding of the parties
that Seller shall have no obligation to conduct any repair or replacement
of a capital nature.
ARTICLE 11
MISCELLANEOUS
11.1 Consents. Seller and Buyer shall each promptly file or submit
and diligently pursue any and all applications or notices with federal,
state, local and/or regulatory authorities and all other requests with
any private persons or entities for consents, approvals, authorizations
and permissions which are reasonably considered necessary or appropriate
by the other party for the consummation of the transaction or to prevent
the termination of any rights material to the Assets.
11.2 Contested Assignment. Anything contained herein to the contrary
notwithstanding, this Agreement shall not constitute an agreement to
assign any claim, right, contract, license, lease or commitment if an
attempted assignment thereof without the consent of another party thereto
would constitute a breach thereof or in any material way affect the rights
of Seller thereunder. An attempted assignment would be ineffective or
would materially affect Seller's rights thereunder so that Buyer would
not in fact receive all such rights. Seller shall cooperate in any
reasonable arrangement designed to provide for Buyer the benefits under
any such claim, right, contract, license, lease or commitment, including,
without limitation, enforcement of any and all rights of Seller against
the other party or parties thereto arising out of the breach or
cancellation by such other party or otherwise.
11.3 Limited Survival Period. All covenants, obligations,
representations, warranties and agreements contained in this Agreement
(excluding the warranties of title contained in the Conveyance Documents)
shall survive the Closing for a period of 180 days. The rights and
remedies of each party shall terminate at the expiration of the 180 day
time period stated above, unless written notice of a breach of any
applicable representation, warranty or covenant is delivered to the
breaching party within the stated 180 day time period and any legal action
or proceeding must be commenced within 240 days following the Closing or
it will be forever barred. Neither party has made any representation or
warranty to the other in connection with the transaction contemplated
herein except as contained in this Agreement and any other instrument,
agreement or writing provided for or contemplated by this Agreement.
11.4 Successors or Assigns. Unless consented to by the other party,
no party shall assign or transfer their rights, obligations or
liabilities under this Agreement. Subject to the foregoing, this Agreement
and the terms and provisions hereof shall inure to the benefit of and be
binding upon the representatives, successors and assigns of the parties.
11.5 No Benefit to Others. The representations, warranties, covenants
and agreements contained in this Agreement are for the sole benefit of the
parties hereto and their permitted successors and assigns, if any, and they
shall not be construed as conferring and are not intended to confer any
rights on any other persons or third parties.
11.6 Announcements. All public announcements regarding the purchase of
the Assets shall be subject to prior approval of Seller, except as
otherwise deemed necessary and required by legal counsel for either party
hereto. Buyer acknowledges that Seller is a public company and as such
has various disclosure and reporting obligations under applicable
securities laws, rules and regulations. Seller shall be the solely
responsible for its disclosure and such disclosure shall not require the
prior approval or consent of Buyer.
11.7 Further Assurances. The parties agree to take such further action
and execute such documents and instruments as may be reasonably required
in order to more effectively carry out the terms of this Agreement and the
intentions of the parties.
11.8 Broker's Fees. Seller and Buyer have not incurred any broker's
or finder's fees or retained or authorized any broker or finder to act on
their behalf in connection with the transactions contemplated hereby,
including, without limitation, the sale of the Assets contemplated
hereunder. Seller and Buyer represent to each other that they have acted
directly and independently with the other as principals and that neither
Seller nor Buyer have retained or authorized the services of any broker
or finder with respect to this transaction. Seller agrees to indemnify and
hold Buyer harmless from and against all claims, liabilities, and
obligations for any commission, finder's fee, or other compensation in
connection with this Agreement claimed by or through Seller. Buyer agrees
to indemnify and hold Seller harmless from and against all claims,
liabilities, and obligations for any commission, finder's fee, or other
compensation in connection with this Agreement claimed by or through Buyer.
These mutual indemnifications shall survive Closing or termination of this
Agreement for any reason.
11.9 Notices. Any notice or other communication required or permitted
to be given hereunder shall be deemed to have been properly given when
delivered if by personal delivery or two days after deposit in the mail,
if mailed by certified mail, postage prepaid, addressed to the addresses
of the parties first referenced above (or to such other addresses as the
parties may specify by due notice to the others) with a copy to the legal
counsel of each party hereto.
11.10 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall for all purposes be deemed to be an
original and all of which together shall constitute one and the same
agreement binding on all the parties.
11.11 Facsimile Signatures. In order to expedite the Transaction
contemplated herein, telecopied signatures may be used in place of original
signatures on this Agreement. All parties hereto intend to be bound by
the signatures on the telecopied document, are aware that other parties
will rely on the telecopied signatures, and hereby waive any and all
defenses to the enforcement of the terms of this Agreement based on the
form of signature.
11.12 Headings. The headings in this Agreement are intended solely
for convenience or reference and shall be given no effect in the construction
or interpretation of this Agreement.
11.13 Governing Law. This Agreement shall be governed by the laws
of the State of Mississippi without regard to its conflict by laws
provisions.
11.14 Waiver of Jury Trial. Each of the parties irrevocably waives
any right to a jury trial with respect to any matter arising out of or in
connection with this Agreement.
11.15 Arbitration.
a. All disputes between the parties submitted to arbitration shall be
resolved by binding arbitration administered by the American Arbitration
Association (the "AAA").
b. To the maximum extent practicable, the AAA, the arbitrator (or the
Arbitration Panel, as appropriate) and the parties shall take any action
necessary to require that an arbitration proceeding hereunder shall be
concluded within 180 days of the filing of the dispute with the AAA.
Unless the parties shall agree otherwise, arbitration proceedings
hereunder shall be conducted in Jackson, Mississippi. Arbitrators
shall be empowered to impose sanctions, permit or order depositions and
discovery and to take such other actions as they deem necessary to the same
extent a judge could pursuant to the Federal Rules of Civil Procedure and
applicable law. With respect to any dispute, each party agrees that all
discovery activities shall be expressly limited to matters directly
relevant to the dispute and any arbitrator, Arbitration Panel and the AAA
shall be required to fully enforce this requirement.
11.16 Attorneys' Fees. Should either party hereto institute any
action or proceeding in any court to enforce any provision of this
Agreement, the prevailing party shall be entitled to receive from the
losing party reasonable attorneys' fees and costs incurred in such action
or proceeding, or appeal thereof, whether or not such action or proceeding
is prosecuted to judgment.
11.17 Computation of Time Periods. All periods of the time
referred to in this Agreement shall include all Saturdays, Sundays and
state or national holidays, unless the period of time specifies business
days, provided that if the date or last date to perform any act or give
any notice or approval shall fall on a Saturday, Sunday or state or
national holiday, such act or notice may be timely performed or given on
the next succeeding day which is not a Saturday, Sunday or state or
national holiday.
11.18 Time of the Essence. Time is of the essence with respect to
of all matters set forth in this Agreement.
11.19 No Waiver. No waiver by either party of any breach by the
other of any provision of this Agreement shall be deemed or construed to
be a waiver of any subsequent or continuing breach of the same or any
other provision of this Agreement; nor shall any forbearance by either
party from the exercise of a remedy for any such breach be deemed or
construed to be a waiver by such party of any of its rights or remedies
with respect to such breach.
11.20 Exclusiveness. This Agreement together with the exhibits
attached hereto embodies all of the representations, warranties and
agreements of the parties hereto with respect to the subject matter hereof,
and all prior understandings, representations and warranties (whether oral
or written) with respect to such matters are superseded and may not be
amended, modified, waived, discharged or orally terminated except by an
instrument in writing signed by the party or an executive officer of a
corporate party against whom enforcement of the change, waiver, discharge
or termination is sought. The making, execution and delivery of this
Agreement by the parties hereto has been induced by no representation,
statements, warranties or agreements other than those expressed herein.
11.21 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects
as if such invalid or unenforceable provisions were omitted. Furthermore,
in lieu of such illegal, invalid or unenforceable provision there shall be
added automatically as a part of this Agreement a provision as similar in
terms to such illegal, invalid or unenforceable provision as may be possible
and be legal, valid and enforceable.
11.22 Interpretation, No Presumption. It is acknowledged by the
parties that this Agreement has been reviewed and negotiated by attorneys
for all parties and, therefore, no presumptions shall arise favoring either
party by virtue of the authorship of any of its provisions.
11.23 Exhibits. The exhibits attached hereto, and all post
execution exhibits attached prior to Closing, are hereby incorporated
into this Agreement and wherever reference is made to them it shall be as
if they were set out in full at the point at which such reference is made.
11.24 Confidentiality. Unless Seller otherwise agrees in writing,
Buyer agrees that all confidential proprietary information regarding the
Project of whatsoever nature made available to it by Seller or Seller's
agents or representatives or developed by Buyer ("Confidential
Information"), is confidential and shall not be disclosed to any other
person except those assisting Buyer with this Transaction, or Buyer's
lender, if any, or except as required by law. The provisions of the
foregoing sentence shall not apply to any information which is otherwise
available to the public or which has been obtained from sources that are
not subject to a similar confidentiality restriction or to disclosures as
required by law. Further, Buyer agrees not to use any Confidential
Information for any purpose other than to determine whether to proceed
with the Transaction contemplated by this Agreement. Upon Closing, all
uch Confidential Information shall be the sole and exclusive property of
Buyer and not subject in any manner to this confidentiality restriction.
Provided, however, in the event the Transaction contemplated by this
Agreement does not close for any reason other than a breach by Seller, the
provisions of this Section 11.24 shall survive the termination of this
Agreement for a period of three (3) years.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
Buyer:
H & S Fish Farms, Inc.
By: _______________________________
Name:________________________
Title:_________________________
Seller:
Farm Fish, Inc.
By:___________________________
Name:________________________
Title:_________________________
<PAGE>
EXHIBIT 1.1(a)-Real and Personal Property Schedule
The Assets include the following:
Real Property. That certain real property, including fixtures,
buildings, improvements, and all appurtenant rights relating thereto owned
by Seller and described on Schedule 1.1(a) - Real Property attached hereto
(collectively, the "Real Property").
Personal Property. All machinery, equipment, vehicles, tools, supplies,
spare parts, furniture and all other personal property (other than personal
property leased pursuant to Contracts (as hereinafter described) owned,
utilized or held for use by Seller on the Closing Date and listed on
Schedule 1.1(a) - Personal Property attached hereto.
Contracts. All the Seller's rights in, to and under all contracts,
leases, agreements, purchaser orders and sale orders of Seller described
on Exhibit 3.15(a) and approved by Buyer which relate directly to the Assets.
Shares. The specific 1908 shares of Producer's Feed referenced on
Schedule 1.1(a) - Securities attached hereto.
<PAGE>
EXHIBIT 1.1(b) -Excluded Assets
The Excluded Assets shall include the following:
Cash and Cash Equivalents. All cash and cash equivalents.
Receivables. All accounts and notes receivable.
Personal Property. All personal property of any type not specifically
included in the Assets to be conveyed to Buyer.
Trade name. All rights to the name "Farm Fish" and all other trade
names used by Seller.
Securities. All right and interest in all wholly owned subsidiaries
of Seller, including, without limitation, Dis, Inc. and Dat, Inc.
Insurance Policies. All existing insurance policies of Seller.
Tax Credits and Records. Federal, state and local income and franchise
tax credits and tax refund claims and associated returns and records.
Other Assets. All other tangible and intangible assets of Seller,
of any type and wherever located, which are not specifically included in
the Assets to be conveyed to Buyer.
Miscellaneous. Seller's existing litigation, employee benefit plans,
contracts with affiliates, books and corporate records.
<PAGE>
EXHIBIT 1.2 -Leases
Real Property and Equipment Leases
See attached.
<PAGE>
EXHIBIT 1.3 -Security Documents
Promissory Note
Deed of Trust and Security Agreement
Opinion Letter from Borrower's counsel
UCC-1 Financing Statement
Mortgagee Title Policy (to be provided at closing)
<PAGE>
EXHIBIT 3.6(a) - Contracts Schedule
None
<PAGE>
EXHIBIT 3.12(a) - Current Employees
See attached.
<PAGE>
EXHIBIT 4.3 - No Consent or Violation
None.
<PAGE>
EXHIBIT 7.1 - Seller's Closing Certificate
See attached.
<PAGE>
EXHIBIT 7.6 - Seller Officer's Certificate
See Attached.
<PAGE>
EXHIBIT 8.3 - Buyer's Closing Certificate
See Attached.
<PAGE>
EXHIBIT 7.5, 8.6 - Opinions
See Attached
<PAGE>
EXHIBIT 8.7 - Buyer's Officer's Certificate
See Attached.
