SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): August 28, 1997
EV ENVIRONMENTAL, INC.
(Exact name of Registrant as specified in its charter)
Delaware 33-34021-NY 13-3555254
State or other (Commission File Number) (IRS Employer
jurisdiction of Identification Number)
incorporation)
1900 Plantside Drive, Louisville, KY 40299
(Address of Principal executive offices)
Registrant's telephone number, including area code (502) 499-1600
1465 Post Road East, Westport, CT 06880
(Former name or forner address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets
On August 28, 1997, the Company sold substantially all of
the operating assets of its wholly-owned subsidiary, EV
Engineering, Inc.("EVE") to Omni Engineering, Inc.("Omni"),
a newly formed company created by Robert Hawkins, a former
employee of EVE, for the purpose of acquiring those assets.
Mr. Hawkins was not an officer, director, or, to the best of
knowledge of the Company, a beneficial owner of the Company
or any of its subsidiaries. The Company has no knowledge of
the ownership of Omni.
The Company sold $507,000 of tangible assets of EVE (consisting
primarily of trade accounts receivable) for a total consideration of
$1,457,000, which consisted of $731,000 in cash at the close, $25,000
to be paid thirty days after close, assumption of bank debt
of $236,000 and assumption of other liabilities of $465,000,
primarily trade payables. The Company does not anticipate
the realization of a material gain or loss on the
transaction.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information. The Company intends
to file the required pro forma financial information by
amendment with the next sixty days.
(c) Exhibits.
Exhibit 2.1 Asset Purchase Agreement between Omni
Engineering, Inc., EV Engineering, Inc., and EV
Environmental, Inc. dated August 28, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange
Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly
authorized.
EV ENVIRONMENTAL, INC.
Date: September 9, 1997 By_/s/ Michael R. Cox_
Michael R. Cox
President
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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (hereinafter referred
to as the "Agreement") is made and entered into this
28th day of August, 1997, by and among OMNI ENGINEERING,
INC., a Kentucky corporation (the "Purchaser"), EV
ENGINEERING, INC., a Delaware corporation (the
"Company") and EV ENVIRONMENTAL, INC., a Delaware
corporation ("EV") as the sole owner and registered
holder of all of the issued and outstanding capital stock of
the Company.
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business of
providing engineering services in Kentucky and Indiana
and related
activities (collectively the "Business").
WHEREAS, the Company desires to sell and the
Purchaser desires to purchase certain of the assets of the
Company and the Business of the Company for the
consideration described in this Agreement.
WHEREAS, EV is the registered and beneficial owner of
all of the issued and outstanding stock of the Company, and
is willing to join in this Agreement for the purposes
described herein;
Therefore, in consideration of the
respective
representations, warranties, covenants and agreements set
forth in this Agreement, the receipt and sufficiency of
which are hereby acknowledged, the Purchaser, the Company
and EV, each intending legally to be bound, represent,
warrant, covenant and agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.01 Purchased Assets. Subject to the terms, provisions
and conditions of this Agreement, the Company agrees to
sell, assign, transfer and convey to the Purchaser, and
Purchaser agrees to purchase, acquire and accept from
the Company, the assets of Company's Business listed
and/or described on Schedule 1.01(a),
subject to those liabilities specified in Section 1.03
(the "Assumed Liabilities"), but excluding all other
liabilities of the Company as specified in Section
1.04 (the "Retained Liabilities"). The assets purchased
hereunder (the "Purchased Assets") include without
limitation the following assets and properties:
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(a) All assets set forth on Schedule 1.01(a) with
only such changes therein as have occurred in the ordinary
course of the Business or as otherwise agreed to in or
pursuant to this Agreement, or as may have been consented
to or approved by the Company and Purchaser in writing.
Such assets shall include, without limitation, all cash,
including petty cash, all trade and other accounts
receivable incurred in the normal course of business
(as evidenced by the receivables report as of the
Closing Date to be delivered by Company to Purchaser at
the Closing as Schedule l.01(a)-A); all prepaid expenses,
deposits and advance payments listed on Schedule
1.01(a)-B as being assignable to the Purchaser; the
office equipment, fixtures and office furniture listed on
(Schedule 1.01(a)-C); all accrued fees
for work or services performed but not billed as of the
Closing Date ["Work-In-Progress"] (Schedule 1.01(a)-D);
and all other specified tangible and personal property
directly used by Company in the operation of the Business
(Schedule 1.01(a)-E);
(b) All assignable rights and interest of the
Company
in and to any contracts relating to the Business,
including contracts for the purchase of materials, supplies
and services and the sale of products and services
including associated WorkIn-Progress, equipment leases, and
any other contract relating to the Business, all as listed
on Schedule l.01(b);
(c) All of the Company's books, records and other
data relating to the Business [but not those relating to
the Company as a distinct corporate and taxpaying entity,
including journals of original entry, ledgers and books of
original entry (copies of which will be provided to
Purchaser upon written request); provided, however, that
for a period of six years commencing on the date of the
Closing (as defined in Section 3.01)] or for such longer
periods as may be required by applicable law, the
Purchaser will retain and grant the Company and its
representatives as well as representatives of any local,
state and federal taxing body or authority, access to and
the right to copy all such books, records and other data
included in the Purchased Assets during regular
business hours and upon forty-eight (48) hours
notice to the extent such access is required by the
Company in connection with its tax matters, and provided
further that all such books and records not included as
part of the Purchased Assets shall be made available
for inspection and copying by the Purchaser and its
representatives during regular business hours upon forty-
eight (48) hours notice;
(d) All of the Company's goodwill relating to
the
Business, all customer lists, records and similar sales
and marketing information relating to the Business, and the
Company's rights and interests in the trademarks other
than "EV", trade secrets, licenses, know-how,
specifications, literature, and all other intangible
property which relate specifically to the Business, if
any, as are listed on Schedule 1.01(d);
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(e) All transferable permits, licenses,
orders,
ratings and approvals of all federal, state, or
local
governmental or regulatory authorities which relate to
the Business and which are held by the Company as listed on
Schedule 1.01(e), but only to the extent the same are
transferable; and
(f) Any and all rights of the Company which by
their
terms are transferable and which arise under or
pursuant to warranties, representations and guarantees
made by suppliers in connection with those products or
services transferred to the Purchaser pursuant to this
Agreement or which affect
the
equipment used by or are useful to the Company in connection
with the Business.
1.02 Retained Assets. The Company will retain ownership
only of the following assets used in the Business
(collectively, the "Retained Assets"):
(a) The Company's minute and stock books,
journals of original entry, ledgers of original entry and
books of original entry and books, records and other data
relating to the Company as a distinct corporate and
taxpaying entity;
(b) All income, sales, use, corporation, excise
and
franchise tax refunds which the Company may be
entitled to receive from any federal, state or local
authorities; and
(c) Rights with respect to occurrences taking
place
prior to Closing and arising pursuant to prepaid insurance
and surety bonds, and insurance policies owned by the
Company covering the Purchased Assets.
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1.03 Assumed Liabilities. On the Closing Date, the
Purchaser shall assume and agree to pay, perform, and
discharge only the following specified liabilities,
debts, and obligations of Company's Business,
(the "Assumed Liabilities"):
(a) All obligations of the Company arising on or
after the Closing Date with respect to the executory
contracts, agreements and leases which are identified on
Schedule 1.01(b);
(b) The accounts payable specifically set
forth on Schedule 1.03(b);
(c) The accrued vacation liability to employees
of the Company as specifically set forth on Schedule
1.03(c);
(d) A portion of the obligations of the Company
under
that certain line of credit with Key Bank in an amount
to be mutually agreed upon by Purchaser and the Company at
Closing (the "Key Bank Debt") provided, however that in no
event shall the aggregate amount of the Key Bank Debt to
be assumed by Purchaser exceed $225,000.00; and
(e) The obligations of the Company for work
performed
by subcontractors and vendors but not billed to the Company
as of the Closing Date as listed on Schedule 1.03(d).
1.04 Retained Liabilities. All liabilities retained by
the Company are referred to as the "Retained Liabilities"
and shall include any and all liabilities, actual or
contingent, of the Company and any and all
claims by any person, firm or
organization arising out of any liabilities or obligations
of the Company which are not specifically assumed by the
Purchaser as part of the Assumed Liabilities, including but
not limited to the following:
(a) All liabilities and obligations of the
Company for federal, state or local income taxes incurred
in respect of or measured by the income of the Company
earned prior to the Closing Date or as a result of the
transactions contemplated by this Agreement and any and
all liabilities and obligations of the Company for
sales, use, withholding or other taxes properly payable
by the Company which are not specifically assumed by the
Purchaser ("Taxes").
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(b) All liabilities and obligations of the
Company for the cost of workmen's compensation indemnity
payments with respect to injuries occurring prior to the Closing Date.
(c) All liabilities and obligations of the
Company the substance of which would constitute a breach
of any of the Company's and EV's representations and
warranties contained in Article IV.
(d) All liabilities and obligations of the
Company arising prior to the Closing Date under or in connection
with any collective bargaining agreement between Company and
any agent or representative of employees (including, but
not limited to, any claim for withdrawal liability as
defined at 29 U.S.C. 1381, et seq.).
(e) All liabilities and obligations of the
Company arising in connection with its operations
unrelated to the Business.
(f) Any liability or obligation incurred by
the Company in connection with the negotiation,
execution or'
performance of this Agreement.
(g) All liabilities and obligations of Company
for health and life insurance premiums of Company's
retirees, if any.
(h) All liabilities and obligations with
respect to the presence (as of the Closing Date) of any
Hazardous Substances (as defined in Section 4.01 (dd)) on or
under any real estate the lease for which is included as
part of the Purchased Assets.
(i) All liabilities and obligations arising out
of or connected with any employee benefit plan as defined
in Section (3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), maintained at any time
by the Company or to which the Company made or was
obligated to make any
contributions.
(j) All liabilities and obligations arising out
of or connected with that certain (i) the Asset Purchase
Agreement and (ii) the Assignment, by and among EV, the
Company, EV Contract Management Services, Inc. ("EVC"),
Tenney Pavoni Associates, Inc. ("TPA"), and Mark W.
Tenney ("Tenney") and Joseph L. Pavoni ("Pavoni"), dated
October 7,1994, as amended by Amendment No. 1 to the
Asset Purchase Agreement dated October 30, 1994 and as
amended by Amendment No. 2 to the Asset Purchase Agreement
dated November 3, 1994 (collectively referred to as the
"Asset Purchase Agreement"). Company and EV acknowledge
that they are to jointly and severally agree to assume all
liabilities, obligations, and payments of Company and EVC
to TPA, Tenney and Pavoni, including but not limited to :
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(i) All payments due TPA.
(ii) All payments due Tenney and Pavoni.
(iii) All accounts payable of TPA which were
assumed by the Company pursuant to the Asset
Purchase Agreement including, but not limited to,
legal fees of TPA.
(iv) All costs of professional liability coverage for
former employees of TPA, including Tenney and
Pavoni, in accordance with the terms and,
condition of Section 5.3 of the Asset Purchase
Agreement; a copy of such section which is
attached hereto as Schedule 1.04(j)(iv).
ARTICLE II
PURCHASE PRICE AND PAYMENT
2.01 Purchase Price and Adjustments as of the Closing. In
consideration of the transfer of the Purchased Assets and
the Business, Purchaser agrees to assume the Assumed
Liabilities and agrees to pay, subject to Section 2.05
below, a purchase price for the Purchased Assets and
Business of Nine Hundred Fifty Thousand Dollars
($950,000) (the "Purchase Price"). The Purchase Price will
be subject to adjustment after the Closing in
accordance with Section 2.05.
2.02 Payment Terms. Subject to Section 2.05, below,
the Purchase Price consists of and shall be paid as follows:
(a) Purchaser shall deliver to the Company at
Closing
by cashier's or certified check or by wire transfer the
amount set forth on Schedule 2.02(a) which shall be
finalized and delivered at Closing;
(b) Purchaser shall hold back the sum of
$25,000.00
(the "Holdback") pending the post closing adjustment and
shall distribute the Holdback, if any, to the Company in
accordance with Section 2.05;
(c) Purchaser's assumption of the Assumed
Liabilities; and
(d) Purchaser shall pay, by wire transfer, the
agreed upon Key Bank Debt on or before the Closing.
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2.03 Apportionment. All transfer taxes, recording and
filing fees levied or imposed in connection with the sale
and transfer of the Purchased Assets and Business to the
Purchaser, including without limitation, any and all sales,
use, transfer and excise taxes imposed by federal, state
or local taxing authorities, shall be paid by the Company.
All real estate, personal property, ad valorem and other
local or state taxes, rents and utility charges relating
to the Purchased Assets which are accrued but not yet due
and payable as of the Closing Date shall be pro rated to the
Closing Date.
2.04 Allocation of Purchase Price. The Purchase Price
shall be allocated among the Purchased Assets by the
Purchaser, with the concurrence of the Company. The
final allocation of the Purchase Price, as adjusted in
accordance with this Article II, to the Purchased Assets
shall be set forth on a memorandum which will become
Schedule 2.04-A to this Agreement, which shall be
delivered by the Purchaser thirty (30) days following the
Closing and the Company shall have ten (10) days following
its receipt of proposed Schedule 2.04-A to comment on
or consent to such allocation. The parties hereto agree
that final allocation shall reflect the acknowledged sum of
$50,000 as the established price for hard assets purchased
and the established price for contracts purchased as part
of the Purchased Assets shall be set at ten percent
(10%) of the anticipated profits on each existing
contract.
2.05 Post-Closing Adjustment to Purchase Price.
(a) The parties agree and acknowledge that
certain
adjustments to the Purchased Assets and Assumed Liabilities
will be necessary after the Closing to accurately
determine and finalize the Purchase Price. Within 17 days
after the Closing, Purchaser and the Company shall review
and make any adjustments to the Purchased Assets and
Assumed Liabilities to confirm the Purchase Price (the
"Purchase Price Review"). If the Purchase Price Review
shows that the difference between the Purchased Assets
and the Assumed Liabilities vary from the aggregate amount
of the difference between the Purchased Assets and
Assumed Liabilities set forth in Schedule 2.02(a) to this
Agreement, the Purchase Price will be increased or
decreased by the same amount. If the Purchase Price
increases Purchaser shall pay to the Company the
Holdback plus the increased amount on or before
September 30, 1997. If the Purchase Price decreases the
Purchaser shall deduct such amount from the Holdback and pay
the balance, if any, to the Company on or before September
30, 1997. If the Purchase Price decreases to an amount in
excess of the Holdback, Purchaser shall keep the Holdback
and the Company and EV shall pay the difference to
Purchaser on or before September 30, 1997.
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ARTICLE III
THE CLOSING
3.01 Time and Place. The Closing ("Closing") shall
take place at 10:00 a.m. Eastern Time at the offices of
Goldberg & Simpson, Louisville, Kentucky 40202 on or before
August 28, 1997 (the "Closing Date"). Any rescheduling of
the Closing to a date after August 28, 1997 shall be at the
mutual written agreement of both parties. In the event
the Closing has not occurred by September 19, 1997 this
Agreement shall terminate and the parties shall be entitled
to seek damages as set forth herein.
3.02 Execution and Delivery of Documents of Title by
the Company and EV.
(a) At the Closing the Company shall execute
and deliver to the Purchaser such conveyances, bills
of sale, certificates of title, assignments,
assurances and other
instruments and documents as the Purchaser may reasonably
request in order to effect the sale, conveyance, and
transfer of the Purchased Assets from the Company to
the Purchaser. Such instruments and documents shall be
sufficient to convey to the Purchaser good and marketable
title to the Purchased Assets.
(b) The Company and EV agree that they will, from
time to time after the Closing Date, take such additional
action and execute and deliver such further documents as
the Purchaser may reasonably request in order to
effectively sell, transfer and convey the Purchased
Assets to the Purchaser and to place the Purchaser in
position to operate and control all of the Purchased Assets.
3.03 Execution and Delivery of Documents by Buyer. At
the Closing the Purchaser shall execute and deliver to the
Company an Assumption Agreement in the form annexed hereto
as Schedule 3.03 and such other documents as the Company may reasonably
request to evidence the Purchaser's assumption of the
Assumed Liabilities and evidence that the Purchaser has
paid the Key Bank Debt. The Purchaser agrees that it will
from time to time after the Closing Date, take such
additional action and deliver such further documents as
the Company may reasonably request in order to assume
effectively the Assumed Liabilities.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND EV
4.01 The Company and EV jointly and severally hereby
make the following representations and warranties to
Purchaser, its successors and assigns contained in this
Article IV, each of which is understood to be an
inducement to Purchaser entering into this Agreement.
For purposes of this Agreement, the knowledge of the
officers and directors of the Company and EV and their
supervising employees with reason to know about the matter
in question shall be attributed to the Company and EV,
respectively.
(a) Organization of Company. The Company is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, duly authorized and
with full corporate power and authority to own or lease its
properties and to carry on the business conducted by it in
the manner and in the places where such properties are owned
or leased or such business is currently conducted or
proposed to be conducted. The copies of the Company's
organizational charter as amended to date, certified by
the Delaware Secretary of State, and of the
Company's Bylaws, as amended to date, certified by the
Company's Secretary, and heretofore delivered to
Purchaser's counsel, are complete and correct, no
amendments thereto are pending. Company is duly qualified
to do business as a foreign corporation in Kentucky and
Indiana, and it is not required to be so or qualified
to conduct its business or own its property in any other
jurisdiction where its failure to do so would have a
material adverse effect on the Company's businesses.
(b) Capital of Company. The Company has
authorized
capital stock consisting of one thousand (1,000) shares of
no par value voting common stock, of which one thousand
(1,000) shares of no par value voting stock are issued
and outstanding (the "Shares"). There are no
outstanding subscriptions, options, rights, warrants,
commitments, preemptive rights or other
agreements of any kind for the issuance or sale of, or
outstanding securities convertible into, any additional
shares of capital stock of any class of the Company
constituting all of the outstanding capital stock of the
Company.
(c) Subsidiaries. The Company has no subsidiaries. The
Company does not own or have any direct or indirect
interest in or control over any corporation, partnership,
joint-venture or entity of any kind.
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(d) Due Issuance. All the issued and outstanding
Shares of capital stock of the Company have been properly and
validly issued and are fully paid and non-assessable.
(e) Title to Shares. Except as set forth on
Schedule 4.01(e), EV is the sole and exclusive owner of the Shares
which constitute all of the issued and outstanding voting
common stock of the Company. Except as set forth on
Schedule 4.01(e), EV owns the Shares free and clear of all
liens, pledges, hypothecations, restrictions or
encumbrances, and no other person, firm or corporation
has, or will have, at Closing any interest whatsoever in any
such Shares.
(f) Authority and Enforceability. The Company and EV
have the right, power, legal capacity and authority to enter
into this Agreement and sell, transfer and convey the
Purchased Assets, free and clear of any statutory, contractual,
or other limitations and to enter into and perform their
respective obligations under this Agreement. The
execution, delivery and performance by EV and the Company
of this Agreement have been duly authorized by all
necessary corporate action of EV and the Company and no
other action on the part of EV and the Company is required
in connection therewith. Except for the persons or
entities listed on Schedule 4.01(f) and except as
otherwise provided for in this Agreement, no consents or
approvals, other than the Company and EV, are necessary
in connection with this Agreement. This Agreement
constitutes valid and legally binding obligations of EV and
the Company, enforceable in accordance with the terms
hereof.
The execution, delivery and performance by the
Company and EV of this Agreement and each such Exhibit and
Schedule to this Agreement and any and all other
documents and instruments necessary or required for the
Company and EV to consummate the transactions contemplated
herein:
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(i) do not and will not violate any provision of
the Organizational Charter or Bylaws or any
amendments thereto of the Company or EV;
(ii) do not and will not violate any laws of the
United States, or any state or other jurisdiction
applicable to the Company or EV or require the
Company or EV to obtain any approval, consent or
waiver of, or make any filing with, any person
or entity (governmental or otherwise), that has
not been obtained or made; and
(iii) do not and will not result in a breach of,
constitute a default under, accelerate any
obligation under, or give rise to a right of
termination of any indenture or loan or credit
agreement or any other agreement, contract,
instrument, mortgage, lien, lease, permit,
authorization, order, writ, judgement,
injunction, decree, determination or arbitration
award to which the Company or EV is a party or by
which the property of the Company or EV is bound
or affected, or result in the creation or
imposition of a mortgage, pledge, lien,
security interest, or other charge or
incumbrance on the Purchased Assets, except as
specifically identified on Schedule 4.01(f).
(g) Financial Statements. Company has delivered to
Purchaser the financial statements of the Company as of
December 31, 1996 and March 31, 1997, and the interim
balance sheets and income statements of the Company as
of June 30, 1997 (the "Interim Balance Sheet") (the
Interim Balance Sheets and
financial statements are collectively referred to
herein as "Financial Statements"), copies of which are
attached hereto as Schedule 4.01(g)(1), (2), (3),
respectively. The Financial Statements are true, correct
and complete and have been prepared in accordance with
generally accepted accounting principles applied
consistently during the periods covered thereby ("GAAP");
the balance sheets in the Financial Statements fairly
represent the financial position of the Company as of the
respective dates and set forth in full and reflect all
liabilities, including taxes of the Company as of such
date; the income statements fairly represent the results
of the operations of the Company for the periods indicated
and covered thereby. Neither the Company nor EV knows, or
has any reason to know, of any liability or any basis for
the assertion against the Company of any liability not
reflected or reserved against in the balance sheets.
(h) Absence of Change. Except as set forth in
Schedule 4.01(h) and except as previously disclosed to
Purchaser in writing, copies of which are attached to
Schedule 4.01(h), since
January 1, 1997, there has been:
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(i) no material adverse change in the
condition, financial or otherwise of the Company;
(ii) no fire, explosion, accident, flood, smoke,
water damage or other catastrophe, embargo,
lockout, strike, labor trouble, confiscation of
vital machinery or materials by any government
or any agency thereof, war, state of emergency,
act of God, of other event which materially and
adversely affected the Business and properties
of the Company, as well as the buildings
occupied or used by the Company;
(iii) no sales of goods or services or other
transactions of the Company other than those
occurring in the ordinary course of business,
which had or will have any material adverse
effect on the Company's business or financial
condition;
(iv) no material change in the manner of
conducting the Business of the Company;
(v) no financial or other commitments or
obligations incurred by the Company, except
such as may be incidental to carrying on the ordinary
course of business;
(vi) no borrowing by the Company of any funds
and no endorsing or guaranteeing payment by it of
any loan or obligation, contractual or
otherwise, of any other individual firm,
corporation or other entity, and except as set
forth in Financial Statements, there are no such
borrowings, endorsements, or guarantees by the
Company presently outstanding;
(vii) no loans or advances by the Company to any
individual, firm, corporation, or other entity at
any time;
(viii) no capital additions or improvements in
excess of $50,000 in the aggregate, and no
contracts or purchase orders therefor, to the
properties of the Company;
(ix) no sale, retirement, abandonment, or
other disposition of any property in the Company,
except the disposition of minor equipment in the
ordinary course of business with an aggregate
value of less than $10,000;
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(x) no outstanding obligation by the Company
either for money borrowed or otherwise, other
than is set forth in the Financial
Statements, except trade accounts payable and
other current expenses and taxes incurred and
accrued on its books and arising out of the
ordinary course of business, none of which
obligations are in default or in arrears of
payment;
(xi) no dividend on the Company's capital stock
and no money or other property set apart for
payment or for making any other distributions to
or for the benefit of the account of the Company;
(xii)no acquisition or contract to acquire in any
manner, directly or indirectly, substantially
all of the assets of the Company or any of the
outstanding capital stock of the Company or any
other corporation;
(xiii) no payment of or any obligation to pay any
amounts either in cash or other property to any
person for cancellation of any outstanding
options or agreements to acquire shares of the Company's
capital stock;
(xiv) no change in the capital structure or
articles of incorporation or bylaws of the Company; or
(xv) no change in the accounting methods or
practices followed by the Company in
connection with the operations of the Company.
(i) Contracts. Except for contracts, commitments,
plans, agreements and licenses described in Schedule
4.01(i), true and complete copies of which are to be
delivered to Purchaser prior to the Closing, the Company
does not have, is not a party to or subject to:
(i) any outstanding employment agreement with any
person or any outstanding obligations under any prior such
agreements;
(ii) any outstanding consulting, retainer or service
agreement or arrangements for rendition of services or
otherwise by any person or any outstanding obligations under
any prior such agreements or arrangements;
(iii) any officers or other employees whose
employment cannot be terminated by it at will;
(iv) any liability for, and has not paid compensation to,
any executives, key employees, directors or
stockholders in excess of that being paid or accrued for
current weekly payroll;
(v) any collective bargaining agreement or agreements.
(vi) any contracts or agreements for the purchase of any
commodity, material, service or equipment, except purchase
orders in the ordinary course for less than $10,000.00
each, such orders not exceeding $20,000.00 in the aggregate;
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(vii) any contracts or agreements creating any
obligations of the Company of $5,000.00 or more with
respect to any such contract or agreement not
specifically disclosed elsewhere under this Agreement;
(viii) any contract or agreement providing for the
purchase or all of substantially all of its
requirements of a particular product from a supplier;
(ix) any contract or agreement which by its terms does not
terminate or is not terminable without penalty by Company or
any successor or assign within one year after the date
hereof;
(x) any contract or agreement for the sale or lease of its
products not made in the ordinary course of business;
(xi) any contract with any sales agent or distributor of
products or services of the Company;
(xii) any contract containing covenants limiting
the freedom of the Company to compete in any line of
business or with any personal entity;
(xiii) any contract or agreement for the purchase of any
fixed asset whether or not such purchase is in the ordinary
course of business;
(xiv) any license agreement (as licensor or
licensee);
(xv) any indenture, mortgage, promissory note, loan
agreement, guarantee or any other agreement or
commitment for the borrowing of money; and
(xvi) any contract or agreement with any officer,
employee, director or stockholder of EV or the Company or
with any persons or organizations controlled by or affiliated
with any of them.
The Company is not in default under any such contracts,
commitments, plans, agreements or licenses described in said
Schedule 4.01(i) and has no knowledge of conditions or facts
which with notice or passage of time, or both, would constitute a default.
(j) Sales Representatives, Dealers and Distributors.
Except as set forth in Schedule 4.01(j), the Company is not a
party to any contract or agreement with any person under which such
other person is a sales agent, representative, dealer or
distributor of any of the products of the Company which by its
terms cannot be terminated at will or on not more than 30 days
prior notice and there has been no change in the rate of
compensation paid or payable to any such person since January 1,
1997.
(k) Pending Claims. Except as set forth in Schedule
4.01(k), there are no audits by a tax authority, claims of any
kind, actions, litigation, governmental or administrative
proceeding or other investigations or proceedings or disputes
pending or threatened against or affecting the Company; there are no
unpaid judgments of any kind against the Company; there are no
contracts of the Company subject to renegotiation or unilateral
downward price adjustment; the Company is not charged with or
threatened with a charge or violation nor is it under
investigation with respect to any alleged violation of any
provision of any federal, state or local law or administrative
ruling or regulation relating to any aspect of the business being
carried on by the Company.
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(l) Legal Compliance. The business of the Company has
been and is presently being conducted in material compliance with all
applicable statutes, orders, laws, ordinances, rules and
regulations promulgated by any federal, state, municipal or
other governmental authority which apply to the conduct of its
business, and Company has not received notice of a violation or
alleged violation of any such statue, ordinance, rule or
regulation.
(m) Title to Assets. Except as set forth in Schedule
4.01(m), (i) the Company is the sole and exclusive owner of, and has
good and valid title to, all of the Purchased Assets used in the
Business, wherever located, free and clear of all liens,
mortgages, pledges, encumbrances or other charges; and (ii)
except as set forth in Schedule 4.01(m) no other person, firm or
corporation has or will have at Closing any interest whatsoever in
any of the Purchased Assets.
(n) Condition of Assets. The Purchased Assets, presently
used in the Business, are in good operating condition, normal wear
and tear excepted.
(o) Leases. The Company is not a lessee of any real or
personal property under any lease agreement covering property not
owned by it, except as may be set forth in Schedule 4.01(o), and in
connection with all leases set forth in such Schedule 4.01(o), no
shareholder nor any officer, director or key employee of the Company
or EV, nor any spouse, child or relative of any of those persons,
owns or has any interest, directly or indirectly, in any of the real
or personal property leased to the Company. All
leases listed in Schedule 4.01(o) are valid and in full force, and
there does not exist any default or event that with notice or lapse
of time, or both, would constitute a default or event of
acceleration under any of these leases.
(p) Inventory. The Company has no inventory.
(q) Other Property. Schedule 4.01(q) to this Agreement is a
schedule describing, and specifying the location of all trucks,
automobiles, machinery, equipment, furniture, supplies, tools,
dies, jigs, molds, patterns, drawings, and all other tangible
personal property owned by, in the possession of, or used by the
Company in connection with the Business, except (i) inventories of
stock materials and (ii) items with a value of less than $500. The
property listed in Schedule 4.01(q) constitutes all such tangible
personal property necessary for the conduct by the Business as
now conducted. Except as stated in Schedule 4.01(q),
no personal property used by the Company in connection with the
Business is held under any lease, security agreement, conditional
sales contract, or other title retention or security arrangement, or
is located other than in possession of the Company.
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(r) Customers. Schedule 4.01(r) to this Agreement is a
current list of all ($10,000 or more) customers of the Company as of
the date thereof which is after June 30, 1997. Except as
indicated in Schedule 4.01(r), the Company or EV have no
information, nor are they aware of any facts or circumstances,
indicating that any of these customers intends to cease doing
business with it other than pursuant to the expiration of any
contract with these customers, or materially alter the amount of the
business that it is doing with the Company.
(s) Interest in Customers, Suppliers and Competitors. To
the best of Company's or EV's knowledge, no shareholder nor any
officer, director, or key employee of the Company, nor any spouse or
child of any of them, has any direct or indirect interest in any
competitor, supplier, or customer of the Company or EV or in any
person from whom or to whom any of them leases any real or personal
property, or in any other person with whom the Company is doing
business, except as may be permitted by the NonCompetition
Agreement, a copy of which is attached hereto as Exhibit A.
(t) Corporate Documents. The Company has furnished to
Purchaser for its examination copies of (i) the articles of
incorporation, and any amendments thereto certified by the
Delaware Secretary of State, and bylaws (and amendments thereto) of
the Company; (ii) the minute books of the Company containing all
records required to be set forth of all proceedings, consents,
actions, and meetings of the Company and the Board of Directors of
the Company which have a material impact on the Purchased Assets
or the transactions contemplated under this Agreement; (iii) all
material permits and consents issued with respect to the Company and
all applications for such permits and consents; and (iv) the stock
transfer books of the Company, if available, setting forth all
issuances and transfers of any capital stock (the "Corporate
Records"). The Corporate Records of the Company, as delivered to
Purchaser, are true and complete copies of all Corporate Records of
the Company.
(u) Operational Compliance. Neither the Company nor EV
has received any notice or has any knowledge that the properties of
the Company are not being operated in material conformity with all
applicable rules, ordinances, and other laws pertaining thereto.
Neither the Company nor EV have received any notice or has any
knowledge that the Company is not in material compliance with all
federal and state laws relating to the business of the Company or its
properties.
(v) Absence of Restrictions. The Company is not subject
to any contractual or other restrictions which materially and
adversely affect its business, properties, assets or financial
condition.
(w) Accounts Receivable. All notes and accounts
receivable and employees' loans (all of which are hereinafter
called "Receivables") of the Company appearing Schedule 1.01(a)-A
including those reflected on the balance sheets in the Financial
Statements, and those accrued thereafter up to Closing less
reserves for uncollectible receivables, are genuine and valid
obligations owed to the Company.
(x) OSHA. The Company and its operations and properties are
presently in material compliance with all applicable
Occupational Safety and Health rules, regulations and laws.
Neither the Company nor EV have received any notice, or knows of any
potential occupational safety and health problem in
connection with the operations or properties of the Company.
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(y) Investments. The Company does not own, directly or
indirectly, any of the capital stock, securities or obligations of
any government or agency thereof, any lending institution or any
corporation, domestic or foreign.
(z) Intellectual Property. All license agreements relating to
the following, and all patents and patent applications or their
equivalent, inventions, research and development, trademarks
and service marks (whether registered or unregistered) and trade
names, trade secrets, proprietary information, computer software and
copyrights, owned by or licensed to, the Company which are of any
value or importance to its business or which it is authorized to
use in the production or marketing of any products now produced
or proposed to be produced by the Company (collectively the
"Intellectual Property") are listed in Schedule 4.01(z), and to the
extent indicated therein have been duly registered in, filed in
or issued by the United States and foreign Patent Offices or
other appropriate governmental office, except as set forth in Schedule
4.01(z), the Company is the sole person or entity entitled to use the
Intellectual Property, free and clear of any claims or demands of
any other person. The
Company does not use any of the Intellectual Property by consent of
any other rightful owner thereof and neither the Company nor EV
knows of any attachments, liens or encumbrances thereon. Except
as set forth in Schedule 4.01(z), the Company does not pay any
licensing fee, royalty or other payment to any other person or
entity with respect to any of the Intellectual Property and has no
knowledge of any proceedings which have been instituted or are
pending or threatened which challenge the rights of the Company
with respect thereto, or that any of the Intellectual Property
infringes or is being infringed by others or is subject to any
outstanding order, decree, judgment or stipulation.
(aa) Tax Matters. Except as set forth in Schedule
4.01(aa), the Company has timely filed all federal, state, and
local tax returns, estimates and reports required to be filed by it
and has paid in full all taxes shown to be due by such returns,
estimates or reports. Neither the Company nor EV knows of any
audits, assessments, notices of deficiency, claims or demands for
taxes or proposed deficiencies against the Company for any federal,
state or local taxes. Neither the Company nor EV has consented to
a waiver or extension of the statute of limitations for
assessments of any tax liability for any year with any department
of any federal, state, local or foreign government responsible for
the administration of tax laws.
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(bb) Employee Benefit Matters.
(i) Except as set forth in Schedule 4.01(bb), the
Company has no pension, profit sharing, retirement,
fringe benefit, deferred compensation, stock purchase,
stock option, incentive, bonus, vacation, severance,
disability, hospitalization, medical insurance, life
insurance or any other type of employee benefit plan,
program or arrangement ("Plan"). Except as set forth on
Schedule 4.01(bb)-1 all plans set forth in this Schedule
4.01(bb) are qualified under Section 401 of the Internal
Revenue Code.
(ii) Except as set forth in Schedule 4.01(bb), (A) the
Company has complied in all material respects with all
applicable laws, rules and regulations of governmental
agencies or authorities relating to the employment of
labor in connection with the operation of its business,
including, without limitation, ERISA and the
regulations and published interpretations thereunder, the
requirements of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, related to
employees and former employees ("COBRA"), and those
relating to wages, hours, collective bargaining,
unemployment insurance, workers' compensation, equal
employment opportunity and the payment and withholding of
taxes, including income and social security taxes, (B) the
Company has not agreed to recognize any union or other
collective bargaining unit, nor has any union or other
collective bargaining unit been certified as representing
any of its employees, and (C) for the past three years,
the Company has not experienced any strikes, work
stoppages, significant proceedings or claims of unfair
labor practices filed.
(cc) Insurance. The Company has maintained and now
maintains in amounts customary in their industry (i) insurance on all
its assets and businesses of a type customarily insured, covering
property damage and loss of income by fire and other casualty, and
(ii) insurance protection against all liabilities, claims and risks
against which it is customary to insure. Except for notices sent to
the Company whereby it is notified by the insurer that the
applicable insurance contract is due to expire on a date specified
therein and except as disclosed in Schedule 9.13, no written notice
of any cancellation or threatened cancellation of any insurance
contract has been received by the Company and, to the knowledge
of the Company, each of the insurance contracts is in full force
and effect in accordance with their terms and will continue to be in
full force as of the Closing.
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(dd) Environmental Matters. Except for items which in the
aggregate do not or could not reasonably be expected to have a
material adverse effect on the Business or the Purchased Assets of
the Company or as disclosed on Schedule 4.01(dd), (i) the property
and assets of the Company and the operations conducted thereon by
the Company (aa) do not violate any applicable federal, state
or local environmental law, regulation or
ordinance (each hereinafter an "Environmental Law"), including by way
of illustration and not by way of limitation, (x) the Clean Air Act,
the Federal Water Pollution Control Act of 1972, the Resource
Conservation and Recovery Act of 1976, the Comprehensive Environmental
Response Compensation and Liability Act of 1980, and the Toxic
Substances Control Act (including any amendments or extension
thereof, and rules, regulations, standards or
guidelines pursuant to any Environmental Laws) and (y) all other
environmental standards or requirements, and (bb) are not subject to
any existing, pending or, to the knowledge of the Company or EV,
threatened investigation, inquiry or proceeding by any
governmental authority or to any remedial obligations under any
Environmental Law; (ii) all notices, permits, licenses or similar
authorizations, if any, required to be obtained or filed under any
Environmental Law in connection with the use of the real
properties and assets of the Company, including, without
limitation, past or present treatment, storage, disposal or
release of any or all petroleum products, underground storage
tanks, and all Hazardous Substances (as such term is hereinafter
defined) into the environment, have been obtained or filed; (iii) to
the extent required by Environmental Laws, all Hazardous
Substances generated at or in connection with the real properties and
operations of the Company have been transported only by
carriers having an identification number issued by the U.S.
Environmental Protection Agency, treated or disposed of only by
treatment or disposal facilities, respectively, maintaining valid
permits to the extent required under all applicable Environmental
Laws, or reclaimed or recycled only by reclamation or recycling
facilities which are authorized to receive such Hazardous
Substances and which are exempt from, or maintaining valid
permits to the extent required under, all applicable
Environmental Laws; and (iv) no Hazardous Substances have been
disposed of or otherwise released on or to (aa) the real
properties on which the operations of the Company are conducted
except in strict compliance with Environmental Laws or (bb)
elsewhere except in accordance with clause (iii) above.
"Hazardous Substances" shall mean any toxic or hazardous or
noxious substance, material or waste which is regulated by any
local government authority having jurisdiction over the real
properties of or used by the Company, the Commonwealth of
Kentucky or the United States Government, including but not
limited to (i) asbestos or any asbestos containing material of
any kind or character which is now or may become friable and
polychlorinated biphenyl ("PCB's") as regulated by the Toxic
Substances Control Act, 15 U.S.C.A. 2601 et seq. or materials or
substances designated as "hazardous substances" pursuant to
Section 311 of the Clean Water Act, 33 U.S.C.A. 1251 et seq.,
defined as "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C.A. 6901 et seq. or
defined as "hazardous substances" pursuant to Section 101 of
the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C.A. 6901 et seq.
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<PAGE>
No notice of any material violation of any Environmental Laws
has been received by the Company or EV concerning the real properties
of or used by the Company and there are no existing or pending
requirements of any governmental authority relating to
environmental matters requiring any remedial action or other
work, repairs, construction or capital expenditures with respect to
the real properties. Neither the Company nor EV have been named as
a "potentially responsible party" in connection with any litigation,
investigation or similar matter, and none of them knows of any
matter in which the Company may be so named.
(ee) Warranty or other Claims. To the Company's knowledge,
after due inquiry, there are no existing or threatened product
liability, warranty, malpractice or similar claims or any similar
claims or any facts upon which a material claim or such nature
could be based, against the Company for products or services
which are defective or fail to meet any product or service
warranties except as disclosed in Schedule 4.01(ee). No claim
has been asserted against the Company and to the Company's
knowledge and belief no such claim is presently contemplated for a
re-negotiation or price redetermination of any business
transaction, and which such claim could be based which has not been
adequately adjusted or reserved in the Financial Statements.
(ff) Permits: Burdensome Agreements. Schedule 4.01(ff)
lists all permits, registrations, licenses, franchises,
certifications and other approvals (collectively the "Approvals")
required from federal, state or local authorities which the
Company maintains to conduct its business. Except as disclosed in
Schedule 4.01(ff) or any other Schedule hereto, the Company is
not subject to or bound by any agreement, arrangement, judgement,
decree or order which may materially adversely affect its
business or prospects, its condition, financial or otherwise, or any
of its assets or property.
(gg) Liabilities. As of the date hereof and as of the
Closing, the Company had and will have no liabilities of any
nature, whether accrued, absolute, contingent or otherwise
asserted or unasserted, known or unknown (including without
limitation liabilities as guarantor or otherwise with respect to
obligations of others, or liabilities for taxes due or then
accrued or to become due or contingent or potential liabilities
relating to the activities of the Company or the conduct of the
business prior to the date hereof or the Closing, as the case may be,
regardless of whether claims in respect thereof had been asserted
as of such date), except liabilities (i) stated or adequately
reserved against on the Financial Statements or the notes thereto,
(ii) reflected in schedules furnished to the Purchaser hereunder
on the date hereof and on the Closing, or (iii) incurred in the
ordinary course of the Company's business consistent with terms of
this Agreement.
(hh) Banking Relations. All the arrangements which the
Company has with any banking or financial institution are
completely and accurately described in Schedule 4.01(hh),
indicated with respect to each such arrangements the type of
arrangement maintained (such as checking account, borrowing
arrangements, safe deposit box, etc.) and the person or persons
authorized in respect thereof.
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<PAGE>
(ii) Disclosure. To the best of knowledge of the Company and
EV, after due inquiry, the representations, warranties and
statements contained in this Agreement and in the certificates,
exhibits and schedules provided by the Company or EV pursuant to this
Agreement to Purchaser do not contain any untrue statement of a
material fact, and when taken together do not omit to state a
material fact required to be stated therein or necessary in order
to make such representations, warranties or statements not misleading
and might have circumstances under which they were made. To the
best knowledge of the Company and EV, after due inquiry, there are
no facts which presently or may in the future have a materially
adverse affect on the Business, the Purchased Assets or the
properties, prospects, operations or conditions of the Company which
have not been specifically disclosed herein or in a schedule
furnished herewith.
ARTICLE V
PURCHASER'S REPRESENTATIONS AND WARRANTIES
5.01 Purchaser represents and warrants that:
(a) Organization. It is a corporation duly organized,
validly existing and in good standing under the laws of the
Commonwealth of Kentucky. The copies of the Purchaser's
organizational charter as amended to date, certified by the
Kentucky Secretary of State, and of the Purchaser's Bylaws, as
amended to date, certified by the Purchaser's Secretary, and
heretofore delivered to the Company's counsel, are complete and
correct, no amendments thereto are pending.
(b) Authority. It has taken all necessary corporate
action on its part as may be required under the laws of the
Commonwealth of Kentucky and under its Articles of Incorporation and
Bylaws to authorize the execution, delivery and carrying out of this
Agreement and each such other agreement, document or instrument
required under this Agreement on its behalf. Purchaser has
full corporate power and authority to carry on its business and to
enter into and to consummate the transactions contemplated by this
Agreement.
(c) Enforceability. This Agreement constitutes a
valid and legally binding obligation of Purchaser enforceable in
accordance with the terms hereof.
(d) No Violation. The execution and delivery of this
Agreement, the consummation of the transaction contemplated by this
Agreement, and the fulfillment of and compliance with the terms and
provisions hereof do not (i) conflict with or violate any judicial
or administrative order, or judgment or decree applicable to
Purchaser or (ii) conflict with any of the terms, conditions or
provisions of the Certificate of Incorporation or with the Articles
of Incorporation, Bylaws of Purchaser or any agreements, contract,
instrument, mortgage or restriction to which Purchaser is a party
or by which it is bound or which is applicable to its properties.
(e) Litigation. There is no litigation or
governmental or administrative proceeding or investigation
pending or to its knowledge, threatened against the Purchaser
which would prohibit the consummation of the transactions
contemplated by this Agreement.
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ARTICLE VI
THE COMPANY'S AND EV'S OBLIGATIONS BEFORE CLOSING
6.01 Making of Covenants and Agreements. The Company and EV
hereby jointly and severally make the following covenants and
agreements.
(a) Conduct of Business. Between the date of this
Agreement and the Closing Date, EV will cause the Company to:
(i) Conduct the Business only in the ordinary
course and refrain from changing or introducing any
method of management or operations except in the
ordinary course of business and consistent with
prior practices;
(ii) Refrain from making any purchase, sale or
disposition of any asset or property other than in the
ordinary course of business, from purchasing any
capital asset costing more than $5,000 and from
mortgaging, pledging, subjecting to a lien or otherwise
encumbering any of its properties or assets other
than in the ordinary course of business;
(iii) Refrain from incurring any contingent
liability as a guarantor or otherwise with respect to
the obligations of others, and from incurring any
other contingent or fixed obligations or
liabilities except in the ordinary course of
business;
(iv) Refrain from making any change or incurring any
obligation to make a change in its
organizational charter, By-laws or authorized or
issued capital stock;
(v) Refrain from declaring, setting aside or
paying any dividend, making any other distribution in
respect of its capital stock or making any direct
or indirect redemption, purchase or other acquisition
of its stock;
(vi) Refrain from making any change in the
compensation payable or to become payable to any of
its officers, employees, agents or independent
contractors;
(vii) Refrain from prepaying loans (if any)
from its stockholders, officers or directors or
making any change in its borrowing arrangements;
(viii) Use its best efforts to prevent any
change with respect to its management and
supervisory personnel and banking arrangements;
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(ix) Use its best efforts to keep intact its
business organization, to keep available its
present officers and employees, to preserve the
goodwill of all suppliers, customers, independent
contractors and others having business relations with
it, make no adjustment in rates or hours of work, nor
enter into any labor or employment contract, or
adopt any new pension, benefit or severance plan;
(x) Have in effect and maintain at all times all
insurance of the kind, in the amount and with the
insurers set forth in Schedule 6.01(x) hereto or
equivalent insurance with any substitute insurers
approved in writing by Purchaser;
(xi) Furnish Purchaser with Schedules of accounts
payable, accounts receivable, the current bank
balances and accrued vacation liability to Company
employees, all as of August 25, 1997 on August 26,
1997;
(xii) Permit Purchaser and its authorized
representatives to have full access to all its
properties, assets, records, tax returns,
contracts and documents and furnish to Purchaser or
its authorized representatives such financial and
other information with respect to its business or
properties as Purchaser may from time to time
reasonably request.
(b) Authorization from Others. Prior to the Closing, EV
and the Company will
each use their reasonable best efforts to obtain all
authorizations, consents and permits of others required to permit the
consummation by the Company of the transactions contemplated by this
Agreement.
(c) Notice of Default. Promptly upon the occurrence of,
or promptly upon EV or the Company becoming aware of the impending
or threatened occurrence of, any event which could cause or
constitute a breach or default, or would have caused or constituted a
breach or default had such event occurred or been known to EV or
the Company prior to the date hereof, of any of the representations,
warranties or covenants of EV or the Company
contained in or referred to in this Agreement or in any Schedule or
Exhibit referred to in this Agreement, the Company and EV shall
give detailed written notice thereof to Purchaser and shall use their
best efforts to prevent or promptly remedy the same.
(d) Consummation of Agreement. EV and the Company
shall use their reasonable best efforts to perform
and fulfill all conditions and obligations on their parts to
be performed and fulfilled under this Agreement, to the end
that the transactions contemplated by this Agreement shall be
fully carried out. To this end, the Company will obtain prior
to the Closing all necessary authorizations or approvals of
its stockholders and Board of Directors to consummate the
transactions contemplated hereunder.
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<PAGE>
(e) Cooperation of EV and the Company. EV and the
Company shall cooperate with all reasonable requests of
Purchaser and the Purchaser's counsel in connection with the
consummation of the transactions contemplated hereby,
including without limitation, cooperating in the rollover, if
necessary or required by ERISA, of any Plan described in
Schedule 4.01(bb)
(f) No Solicitation of Other Offers. Neither EV
nor the Company, nor any of their representatives, officers,
directors, employees or agents will, directly or indirectly,
(i) solicit, entertain, discuss, or negotiate with, any
person, other than Purchaser, relating to the possible
acquisition of the Company or any of the Company's assets
(except in the ordinary course of the Company's business
consistent with the terms of this Agreement); (ii) provide,
or cause any other person to provide, any information to any
person, other than Purchaser, relating to the possible
acquisition of the Company or any of the Company's assets
(except in the ordinary course of the Company's business
consistent with the terms of this Agreement); or (iii) enter
into a transaction with any person or persons, other than
Purchaser concerning the possible acquisition of the Company
or any of the Company's assets (except in the ordinary course
of the Company's business).
If any party receives any unsolicited offer or proposal
to acquire any of the stock, any securities of the Company or
any assets of the Company (except in the ordinary course of
business), or to enter into negotiations or discussions
concerning the above, such party shall immediately reject the
same and notify Purchaser thereof, including information as
to the identification of the party making any such proposal,
and the specific terms of such offer or proposal.
(g) Confidentiality. EV and the Company agree
that, unless and until the Closing has been consummated, EV,
the Company and their respective officers, directors, agents
and representatives will hold in strict confidence, and will
not use any confidential or proprietary data or information
obtained from Purchaser with respect to its business or
financial condition except for the purpose of evaluating,
negotiating and completing the transaction contemplated
hereby and obtaining necessary government consents.
Purchaser acknowledges that the transactions contemplated
herein are material to EV and require public disclosure. EV
and the Company shall obtain Purchaser's consent, which
consent shall not be unreasonably withheld, prior to making
any press release or public statement concerning the
transactions contemplated herein.
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(h) Tax Returns. The Company, with the approval
of Purchaser and in accordance with applicable law, shall
cause the Company to (i) promptly prepare and file on or
before the due date or any extension thereof all federal,
state and local tax returns required to be filed by it with
respect to taxable periods of the Company that include any
period ending on or before the Closing and (ii) pay all Taxes
of the Company attributable to periods ending on or before
the Closing.
6.02 Representations, Warranties and Covenants at
Closing. Except for information in the Schedules and
Exhibits, which is controlled by Section 9.07, all
representations, warranties and covenants of EV and the
Company set forth in this Agreement and in any written
statements delivered to Purchaser by any of them under this
Agreement will also be true and correct in all material
respects as of Closing, as if made on and as of that date.
6.03 Further Documents or Actions. The Company and EV,
at any time before or after the Closing, will execute,
acknowledge and deliver any further deeds, assignments or
conveyances, and any other assurances, documents, and
instruments of transfer, reasonably requested by Purchaser
and will take any other action consistent with the terms of
this Agreement that may reasonably be requested by Purchaser.
ARTICLE VII
PURCHASER'S OBLIGATIONS BEFORE CLOSING
7.01 Confidentiality. Purchaser agrees that, unless
and until the Closing has been consummated, Purchaser and its
officers, directors, and other representatives will not use
in any manner or for any purpose any or all confidential data
and information whether written or otherwise, obtained in
connection with this transaction or Agreement, with respect
to the Business of the Company, and if the transactions
contemplated by this Agreement are not consummated Purchaser
will return to the Company all such data and information that
the Company may reasonably request. Any such data and
information will not be considered confidential hereunder if
it is part of the public domain or becomes part of the public
domain through no act or omission of Purchaser unless
required by subpoena or other court process or as may be
required by law.
7.02 Representations, Warranties and Covenants at
Closing. All representations, warranties and covenants of
Purchaser set forth in this Agreement and in any written
statements delivered to EV and the Company under this
Agreement will also be true and correct in all material
respect as of Closing, as if made on and as of that date.
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7.03 Notice of Default. Between the date of this
Agreement and the Closing Date, the Purchaser will promptly,
upon the occurrence of, or promptly upon Purchaser becoming
aware of the impending or threatened occurrence of, any event
which could cause or constitute a breach or default, or would
have caused or constituted a breach or default had such event
occurred or been known to Purchaser prior to the date hereof,
of any of the representations, warranties or covenants of
Purchaser contained in, or referred to in, this Agreement or
in any Schedule or Exhibit referred to in this Agreement, the
Purchaser shall give detailed written notice thereof to the
Company and EV and shall use its best efforts to prevent or
promptly remedy the same.
ARTICLE VIII
CONDITIONS PRECEDENT TO COMPANY'S PERFORMANCES
8.01 Conditions. The obligations of the Company to
sell transfer and convey the Purchased Assets under this
Agreement are subject to the satisfaction, at or before
Closing, of all the conditions set forth in this Article
VIII.
8.02 Purchasers Warranties. All representations and
warranties by Purchaser contained in this Agreement or in any
written statement delivered by Purchaser under this Agreement
shall be true on and as of Closing as though such
representations and warranties were made on and as of that
date.
8.03 Purchaser's Performance. Purchaser shall have
performed and complied with all covenants and agreements, and
satisfied all conditions that it is required by this
Agreement to perform, comply with, or satisfy, before or at
Closing.
8.04 Approval of Board of Directors and Shareholders.
The Company shall have received the certified copies of the
minutes of the Board of Directors and Shareholders of
Purchaser authorizing and approving this Agreement.
8.05 Assumed Liabilities. The Company shall execute and
deliver the Assumption Agreement described in Section 3.03
herein.
8.06 Good Standing Certificate. The Company shall have
received a certificate of good standing of the Purchaser from
the Kentucky Secretary of State, dated not more than one
month prior to Closing.
8.07 Opinion of Counsel. The Company shall have
received an opinion dated as of the Closing date and
addressed to the Company, by Goldberg & Simpson, P.S.C.,
counsel for the Purchaser, reasonably satisfactory to the
Company's counsel, as to such of the subject matter of this
Agreement and the transactions contemplated hereunder as
deemed appropriate by the Company and EV.
8.08 Delivery of Purchase Price. Purchaser shall have
delivered to the Company the Purchase Price in the amount and
in the manner set forth in Section 2.02.
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8.09 Payment of Key Bank Debt. Purchaser shall have
delivered to Company evidence of Purchaser's payment of the
Key Bank Debt.
8.10 Termination of the Debentureholders' Security
Interest in the Purchased Assets. (i) The Company shall have
received the consent of the holders of a majority in face
amount of EV's 9% convertible debentures (the "Required
Debentureholders") to have EV and the Collateral Agent amend
the Security Agreement with the Debentureholders to permit
the sale of the Purchased Assets or in the alternative, EV
shall have received the amendment, waiver and consent of the
Required Debentureholders authorizing the sale of the
Purchased Assets and (ii) the Collateral Agent shall have
executed and filed or delivered to EV for filing, a UCC-3
termination statement terminating the Debentureholder's
security interest in the Purchased Assets.
8.11 The Company shall have obtained a landlord's lien
waiver from its Louisville, Kentucky landlord.
ARTICLE IX
CONDITIONS PRECEDENT TO PURCHASER'S PERFORMANCE
9.01 Conditions. The obligation of Purchaser to
purchase the Purchased Assets, assume the Assumed Liabilities
and consummate the transactions contemplated under this
Agreement is subject to the satisfaction, at or before
Closing, of all the conditions set forth in this Article IX.
Purchaser may waive any or all of these conditions in whole
or in part without prior notice.
9.02 Clear Title.
(a) Purchased Assets. The Company shall be the
sole and exclusive owner of, and have good and valid title to
all of the Purchased Assets, wherever located, free and clear
of all liens, mortgages, pledges, encumbrances or other
charges.
(b) Release of Security Interest. Purchaser shall
have received evidence, satisfactory to Purchaser in its sole
and absolute discretion, including appropriately filed UCC-3
termination statement that all security interests, including
the Debentureholders' and Key Bank's security interests, in
and to the Purchased Assets have been released and
terminated.
(c) Capital Stock. The issued and outstanding
shares of capital stock of the Company shall consist only of
the Shares, all of which are fully paid and non-assessable
and there are no shares of common stock held in its treasury.
EV shall be the sole record owner of the Shares.
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9.03 Accuracy of Representations and Warranties. Except
for information in the Schedules, which is controlled by
Section 9.07 and except as otherwise specifically permitted
by this Agreement, all representations and warranties by EV
and the Company in this Agreement or in any written statement
that shall be delivered to Purchaser by either of them under
this Agreement shall be true in all material respects on and
as of the Closing as though made at that time.
9.04 Performance of the Company and EV. The Company and
EV shall have performed, satisfied, and complied with all
covenants, agreements, obligations and conditions required by
this Agreement to be performed or complied with by them, on
or before Closing.
9.05 No Material Changes. During the period from June
30, 1997 to Closing, there shall not have been any material
adverse change in the financial condition of the Company and
it shall not have sustained any material loss or damage to
the Purchased Assets which is not insured, that materially
affect its ability to conduct its business.
9.06 Instruments of Transfer and Certificate of the
Company. Purchaser shall have received (i) the instruments
of transfer of the Purchased Assets specified in Section
3.02(a) and (ii) a certificate, dated as of the Closing,
signed by the Company's president and treasurer certifying,
in such detail as Purchaser and its counsel may reasonably
request, that the conditions specified in Sections 9.01
through 9.23, with the exception of Sections 9.14, 9.16,
9.17, 9.18, 9.19 and 9.21, have been fulfilled.
9.07 Schedules. All Schedules and Exhibits to this
Agreement are to be prepared by the Company and shall be
dated and shall be accurate as of the date prepared.
9.08 Good Standing Certificate. Purchaser shall have
received certificates of good standing of the Company, dated
not more than one month prior to Closing, in Delaware,
Kentucky and Indiana, and a copy of a waiver of tax lien or a
statement as to good tax standing issued by each such state's
tax or revenue commissioner.
9.09 Opinion of Counsel. Purchaser shall have received
an opinion dated as of the Closing date and addressed to the
Purchaser and its counsel, by Rich, May, Bilodeau & Flaherty,
P.S.C., counsel for the Company and EV, reasonably
satisfactory to Purchaser's counsel as to such of the subject
matter of this Agreement and the transactions contemplated
hereunder as deemed appropriate by Purchaser and in the form
set forth as Schedule 9.09 hereto.
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9.10 Books and Records. Purchaser shall have received
all books and records of the Business as set forth in Section
1.01(c), including copies of the Corporate Records, and such
other documents as may be deemed reasonably necessary by
counsel for Purchaser to carry out the terms of this
Agreement.
9.11 Absence of Litigation. No action, suit,
investigation or proceeding before any court or any
governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall
have been instituted or threatened on or before the Closing.
9.12 Consents. The Company and EV shall have made all
filings with and notifications of governmental authorities,
regulatory agencies and other entities required to be made by
the Company and EV in connection with the execution and
delivery of this Agreement and the performance of the
transactions contemplated hereby. The Company, EV and
Purchaser shall have received all authorizations, waivers,
consents, assignments and permits required, necessary or
appropriate to permit the transactions contemplated by this
Agreement, in form and substance reasonably satisfactory to
Purchaser, from all third parties, including without
limitation, applicable governmental authorities, regulatory
agencies, lessors, lenders, customers, clients and contract
parties, required in connection with the sale, transfer and
conveyance of the Purchased Assets to avoid a breach,
default, termination, acceleration or modification of any
indenture, loan or credit agreement or any other agreement,
contract, instrument, mortgage, lien, lease, permit,
authorization, order, writ, judgement, injunction, decree,
determination or arbitration award as a result of, or in
connection with the execution and performance of this
Agreement.
9.13 Insurance and Banking. Purchaser shall have
received a correct list and description of and copies of (i)
all policies of insurance carried and owned by the Company
showing the name of the insurance company, the coverage, the
amounts, the annual premiums and the expiration dates, and
(ii) all bank accounts and certificates of deposit of the
Company and the persons authorized to sign checks on any of
such accounts or deposits. A copy of such documents shall be
attached hereto as Schedule 9.13.
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9.14 Approval of Purchaser. All actions,
proceedings, instruments, consents and documents required to
carry out this Agreement and the transaction contemplated
hereby and all related legal matters contemplated by this
Agreement shall have been approved by Purchaser and Purchaser
shall have received such other certificates, opinions, and
documents in form reasonably satisfactory to Purchaser, as
Purchaser may reasonably required from the Company or EV to
evidence compliance with the terms and conditions hereof as
of the Closing and the correctness as of the Closing of the
representations and warranties of the Company and EV and the
fulfillment of the Company's and EV's covenants.
9.15 Approval of Board of Directors and Shareholders.
Purchaser shall have received the certified minutes of the
Board of Directors and Shareholders of the Company
authorizing and approving this Agreement.
9.16 Financing. Purchaser shall have received
financing in an amount not to exceed the Purchase Price, and
such additional monies as are required to effectuate the
transactions herein contemplated and provide adequate initial
working capital, never to exceed $1,500,000.00, on terms and
conditions reasonably satisfactory to Purchaser by the
Closing Date.
9.17 Customer Relations. Purchaser shall be
reasonably satisfied based on personal interviews with
Company's Customers and Clients that such Customers and
Clients intend to continue their current level of business
with the Purchaser after the Closing and Purchaser shall have
obtained an agreement to transfer contracts from those
customers where the right of assignment of the contract is
not specifically permitted. Purchaser and the Company shall
also send a notification letter to such Customers and Clients
as the parties agree, substantially in the form attached
hereto as Schedule 9.18.
9.18 401(k) Rollover. Purchaser has arranged for a
rollover of the existing 401(k) plan for employees of the
Company employed by Purchaser into a newly formed 401(k) plan
for Purchaser.
9.19 Consent. Purchaser shall have obtained or received
(i) the consent of Tenney and Pavoni (or shall have made a
reasonable attempt to obtain such and such attempt at consent
shall have been approved by Purchaser) and (ii) evidence
satisfactory to Purchaser, in its sole and absolute
discretion, that the Debentureholders have authorized (a) the
sale of the Purchased Assets as contemplated hereunder and
(b) the release and termination of the Debentureholders'
security interest in and to the Purchased Assets.
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9.20 Non-Competition and Confidentiality Agreement. The
Company and EV shall each have executed and delivered to
Purchaser a Non-Competition and Confidentiality Agreement in
form and substance satisfactory to Purchaser and its counsel,
substantially in the Form attached hereto as Schedule 9.21.
9.21 Due Diligence. Purchaser shall have completed
its due diligence with respect to the Company and shall be
satisfied with the results of such due diligence.
9.22 Schedules. The Company shall have delivered to
Purchaser complete final versions of the Schedules to be
attached hereto on or before August 26, 1997, which schedules
shall be satisfactory to Purchaser.
ARTICLE X
RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING
10.01 Closing Date Balance Sheet. Within 17 days
after the Closing EV and the Company shall deliver to
Purchaser for its inspection and approval the Closing Date
Schedules.
10.02 Survival of Warranties. All representations,
warranties, agreements, covenants and obligations herein or
in any schedule, exhibit, certificate or financial statement
delivered by any party to the other party incident to the
transactions contemplated hereby are material, shall be
deemed to have been relied upon by the other party and shall
survive the Closing for a minimum period of two (2) years,
regardless of any investigation and shall not merge into the
performance of any obligation by either party hereto.
10.03 Collection of Assets. Subsequent to the
Closing, Purchaser shall have the right and authority to
collect all receivables and other items transferred and
assigned to it by the Company hereunder and to endorse with
the name of the Company any checks received on account of
such receivables or other items, and the Company agrees that
it will promptly transfer or deliver to the Purchaser from
time to time, any cash or other property that the Company may
receive with respect to any claims, contracts, licenses,
leases, commitments, sales orders, purchase orders,
receivables of any character of any other items included in
the Purchased Assets. Purchaser will promptly transfer to
the Company amount collected on receivables not purchased by
Purchaser.
10.04 Payment of Obligations. The Company and EV
shall jointly and severally pay all of the Retained
Liabilities in the ordinary course of business as they become
due. Neither this provision, nor any other provision of this
Agreement shall create any obligation of EV or the Company to
any person or entity, other than Purchaser, which did not
exist prior to the Closing.
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ARTICLE XI
INDEMNIFICATION
11.01 Indemnification by the Company and EV. The
Company and EV jointly and severally agree to indemnify and
hold the Purchaser and its respective subsidiaries and
affiliates and persons serving as officers, directors,
agents, counsel, partners or employees thereof (individually
an "indemnified party" and collectively the "indemnified
parties") harmless from and against any damages, liabilities,
losses, taxes, fines, penalties, costs, and expenses
(including, without limitation, reasonable fees of counsel)
of any kind or nature whatsoever (whether or not arising out
of third-party claims and including all amounts paid in
investigation, defense or settlement of the foregoing
pursuant to this Section 11) ("Damages"), for a period of two
(2) years from the Closing, unless otherwise stated below,
which may be sustained or suffered by any of them arising out
of or based upon any of the following matters:
(a) fraud (including a material breach of the
representations and warranties contained in Section 4),
intentional misrepresentation or a deliberate or willful
breach by the Company or EV or any of their representations,
warranties, agreements or covenants under this Agreement or
in any certificate, schedule or exhibit delivered pursuant
hereto;
(b) any other material breach of any
representation, warranty, agreement or covenant of the
Company or EV under this Agreement or in any certificate,
schedule or exhibit delivered pursuant hereto, or by reason
of any claim, action or proceeding asserted or instituted
growing out of any matter or thing constituting a breach of
such representations, warranties, agreements or covenants;
(c) all claims asserted under the Bulk Sales Act
relative to any Retained Liabilities (for a period of six (6)
months from the Closing);
(d) any of the Retained Liabilities, including
without limitation, any failure by the Company and EV to
perform and discharge any of the Retained Liabilities as set
forth in this Agreement; and
(e) any liability of the Company or EV for Taxes
which are not included in the Assumed Liabilities.
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11.02 Indemnification by Purchaser. Purchaser agrees
to indemnify and hold the Company and EV (individually an
"Indemnified Party") (collectively the "Indemnified
Parties"), harmless from and against any Damages which may be
sustained or suffered by any of them arising out of or based
upon the following matters.
(a) any material breach of any representation,
warranty, agreement or covenant of Purchaser under this
Agreement or on any certificate, schedule or exhibit
delivered pursuant hereto, made or delivered for the benefit
of the Company and EV;
(b) failure to pay, discharge or perform any of
the Assumed Liabilities or any other obligations of the
Company or EV which are expressly assumed by the Purchaser
(including accrued vacation liabilities to current Company
employees as of Closing) hereunder;
(c) all claims asserted by any employee of the
Purchaser (who are employees of Company prior to Closing and
who are listed on Schedule 11.02(c) hereto) for any
employment benefit including, without limitation to,
retirement benefits, which are incurred and accrue after the
Closing; and
(d) any claims asserted by any employee listed on
Schedule 11.02(c) attached hereto for any wrongful
termination and/or severance payments.
11.03 Indemnification Initiation. Neither EV, the
Company, nor the Purchaser shall have any liability under
this Article XI unless and only to the extent that the
aggregate of all claims brought by any party for
indemnification under this Article exceed $10,000; however,
once any party's claims exceed $10,000, the indemnifying
party shall be responsible for payment of the entire amount
of any claim made under this Article XI, including the first
$10,000 of such claim.
11.04 Procedure for Indemnification. In connection
with any claim for indemnification by any party under the
indemnity set forth above in Sections 11.01 and 11.02, the
procedure set forth below shall be followed.
(a) Notice. Promptly after receipt by an
Indemnified Party of any claim, suit, judgment or matter for
which indemnity may be sought under Sections 11.01 or 11.02
the Indemnified Party shall give notice thereof in writing to
the Indemnifying Party, but the omission to so notify the
Indemnifying Party promptly will not relieve the Indemnifying
Party from any liability except to the extent that the
Indemnifying Party shall have been prejudiced as the result
of the failure to or delay in giving such notice. Notice
hereunder shall be given in accordance with Article XVIII
below. The indemnification period provided for herein shall
be tolled for a particular claim for the period beginning on
the date the indemnified party receives written notice of
that claim until the final resolution of such claim.
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(b) Defense of a Third Party Claim. The
Indemnified Party, after giving such notice, shall have the
right to adjust or settle any claim, suit or judgment coming
within the scope of the indemnity obligation unless the
Indemnifying Party, within ten (10) days after the receipt of
the above notice, agrees in writing to litigate, defend or
appeal, promptly assume the litigation, defense or appeal
thereof with counsel reasonably acceptable to the Indemnified
Party.
(c) Both Parties Right to Participate. Either
party hereto desiring to participate in the handling of any
such third party claim, suit or judging being handled by the
other party shall have the right, at its expense and with its
counsel, to join with the other party and participate fully
in the defense of any such claim or contest.
(d) Final Authority. Purchaser, the Company and
EV shall cooperate in the defense of any third party claim or
litigation and each shall make available all books and
records which are relevant in connection with such claim or
litigation.
(e) Payment. Any and all amounts determined from
time to time to be paid by the Indemnifying Party by reason
of its indemnity obligations under Sections 11.01 or 11.02,
as the case may be, shall be paid in cash, on demand.
(f) Claims Between Purchaser and the Company and
EV. Any claim for indemnification under this Agreement which
does not result in the assertion of a claim by a third party
shall be asserted by written notice given to the other party
(the "Recipient"). Recipient shall have a period of thirty
(30) days within which to respond thereto. If Recipient does
not respond within such 30 day period, Recipient shall be
deemed to have accepted responsibility for such indemnity and
shall have no further right to contest the validity of such
claim. If Recipient does respond within such 30 day period,
the parties shall use their best efforts to resolve the
matter between themselves. If the parties have been unable
to resolve such a matter within 30 days after Recipient's
response to such notice, then the claim for indemnification
shall be submitted to and settled by arbitration by a panel
of three arbitrators experienced in the matters at issue, to
be held in Louisville, Kentucky. The Arbitration shall be
conducted in accordance with the Commercial Arbitration Rules
existing at the date thereof to the extent not inconsistent
with this Agreement. The decision of the arbitrators shall
be final and binding and may be enforced in any court of
record having jurisdiction over the subject matter or over
either of the parties hereto.
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(g) Survival. The rights of the parties under
this Article XI shall survive for a period of two years from
the date of Closing. Thereafter, no claim may be asserted by
any party for indemnification.
ARTICLE XII
PUBLICITY
12.01 Publicity. All notices to third parties and
all other publicity concerning the transactions contemplated
by this Agreement shall be jointly planned and coordinated by
and between the Parties. None of the parties shall cause or
authorize any such notice or publicity without the prior
approval of all other parties; provided, however, that in the
case of an announcement which the Company or its parent may
be required by law or by any governmental agency to make,
issue or release, such action by the Company without the
prior approval by the other parties shall not constitute a
breach of this Section.
ARTICLE XIII
BROKERS AND EXPENSES
13.01 Broker. The parties hereto represent and
warrant that there are no brokers or finders known to them to
be involved with this transaction.
13.02 Expenses. Each of the parties shall pay all
costs and expenses incurred or to be incurred by them in
negotiation and preparation of this Agreement and in Closing
and carrying out the transactions contemplated by this
Agreement. The fees and expenses of the Company shall be
paid by EV.
ARTICLE XIV
FORM OF AGREEMENT
14.01 Headings. The subject headings of the
Sections, paragraphs and subparagraphs of this Agreement are
included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its
provisions.
14.02 Entire Agreement, Modification and Waiver.
This Agreement constitutes the entire agreement between the
parties pertaining to its subject matter and supersedes all
prior and contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification,
or amendment of this Agreement shall be binding unless
executed in writing by all the parties. No waiver of any of
the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver.
No waiver shall be binding unless executed in writing by the
party making the waiver.
14.03 Counterparts. This Agreement may be executed
simultaneously in one more counterparts, each of which shall
be deemed an original, but all of which together shall
constitute one and the same instrument.
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ARTICLE XV
PARTIES
15.01 Rights of Parties. Nothing in this Agreement,
whether expressed or implied, is intended to confer any
rights or remedies under or by reason of this Agreement on
any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability
of any third persons to any party to this Agreement, nor
shall any provision give any third persons any right of
subrogation or action over against any party to this
Agreement.
15.02 Assignment. The Company and EV shall not
assign this Agreement. This Agreement shall be binding on,
and shall inure to the benefit of, the parties to it and
their respective heirs, legal representatives, and
successors.
ARTICLE XVI
REMEDIES
16.01 Specific Performance. Each party's obligation
under this Agreement is unique. If any party should default
in its obligations under this Agreement, the parties each
acknowledge that it would be extremely impracticable to
measure the resulting damages; accordingly, the nondefaulting
party, in addition to any other available rights or remedies,
may sue in equity for specific performance, and in such case
the parties each expressly waive the defense that a remedy in
damages will be adequate.
16.02 Costs. If any legal action or any arbitration
or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default,
or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorneys'
fees and other costs incurred in that action or proceeding,
in addition to any other relief to which it or they may be
entitled.
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ARTICLE XVII
NATURE AND SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
17.01 Effect of Certain Actions. No action taken
pursuant to or related to this Agreement, including without
limitation any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking
such action of compliance with any representation, warranty,
condition or agreement contained herein.
ARTICLE XVIII
NOTICES
18.01 Notices. All notices, requests, demands, and
other communications under this Agreement shall be in writing
and shall be deemed to have been duly given on the date of
service if served personally on the party (including without
limitation service by nationally recognized overnight courier
service) to whom notice is to be given, or if sent by first
class mail, registered or certified, postage prepaid, at the
address set forth below, service shall have been duly given
on the date of receipt by the addressee, or on the date of
confirmation of transmission if delivered by facsimile to the
facsimile number set forth below. Any party may change its
address for purposes of this paragraph by giving the other
parties written notice of the new address in the manner set
forth below.
If to Purchaser: Omni Engineering, Inc.
13901 Bel Vista Court
Prospect, KY 40059
Attn: Frank Hawkins Phone:
(502)_____________ Fax:
(502)_______________
With a copy to: Edward L. Schoenbaechler
Goldberg & Simpson, P.S.C.
3000 National City Tower
Louisville, Kentucky 40202
Phone: (502) 589-4440
Fax: (502) 581-1344
If to the Company and EV: EV Environmental,
Inc.
1465 Post Road East
Westport, Connecticut 06880
Attn: Michael Cox, Chairman
Phone: (203) 256-9596
Fax: (203)______________
With a copy to: Daniel T. Clark, Esq.
Rich, May, Bilodeau & Flaherty,
P.C.
294 Washington Street
Boston, Massachusetts 02108
Phone: (617) 482-1360
Fax: (617) 556-3889
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ARTICLE XIX
GOVERNING LAW
19.01 Governing Law. This Agreement shall be
construed in accordance with and governed by the laws of the
Commonwealth of Kentucky.
19.02 Consent to Jurisdiction. Solely for the purpose
of allowing a party to enforce its indemnification and other
rights hereunder, each of the parties hereby consents to
personal jurisdiction, service of process and venue in the
state courts in the Commonwealth of Kentucky.
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed it as of the date set forth above.
EV:
EV ENVIRONMENTAL, INC.
By: _______________________________
Title:
_____________________________
PURCHASER:
OMNI ENGINEERING, INC.
By:
___________________________________
Title:
_________________________________
THE COMPANY:
EV ENGINEERING, INC.
By:
___________________________________
Title:
_________________________________
