<PAGE>
UNITED STATES
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): January 9, 1998
---------------
AgriBioTech, Inc.
-------------------
(Exact name of registrant as specified in its charter)
Nevada 0-19352 85-0325742
--------------------------- --------------------- ------------------
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Ident. No.)
2700 Sunset Road, Suite C-25, Las Vegas, Nevada 89120
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(Address of Principal Executive Offices) (Zip Code)
(702) 798-1969
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Registrant's telephone number, including area code
<PAGE>
Item 2. Acquisition or Disposition of Assets.
------------------------------------
On January 9, 1998, AgriBioTech, Inc., a Nevada corporation (the
"Registrant"), completed the acquisition from Alan Rosoff of (i) 100% of the
issued and outstanding shares of common stock, $1.00 par value, of Seed
Corporation of America, a Maryland corporation ("Seedco") and 100% of the issued
and outstanding shares of common stock, $.01 par value, of Green SCA Corp., a
Maryland corporation ("GSC") (collectively, the "Stock"); (ii) all of the
limited partnership interests of Green Seed Company Limited partnership, a
Maryland limited partnership ("Green Seed") (the Stock and the Limited
Partnership Interests collectively referred to as the "Securities")(GSC, Seedco
and Green Seed collectively referred to as the "Companies"); and (iii) a
warehouse and related real property located in Athens, Georgia that is used by
the Companies in their business, pursuant to the terms of a Purchase Agreement
among the Registrant, Alan Rosoff, Seedco, GSC and Green Seed dated December 9,
1997.
The aggregate purchase price was $9,700,000, payable in cash, of which
$9,150,000 was designated as the Securities Purchase Price and $550,000 was
designated as the Asset Purchase Price. The parties agreed that the effective
date of the acquisition, for accounting purposes, shall be prior to the opening
of business on January 1, 1998.
At the closing, Alan Rosoff and his wife Jane Rosoff entered into
Employment and Non-Competition Agreements with the Registrant for which Alan
Rosoff received $200,000 and Jane Rosoff received $100,000 in immediately
available funds as consideration for the non-compete provisions in such
agreements, and options to purchase 125,000 shares each of Registrant's Common
Stock. The term of employment for each of Alan and Jane Rosoff is five years,
while the non-compete provisions run through December 31, 2002 or for a period
of three years following termination of their respective employment with the
Registrant and/or Seedco, GSC or Green Seed.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(a) Financial Statements of Business Agreement.
It is impracticable for the Registrant to file the financial
statements of the business acquired as required by Item 7(a)(1) of Form 8-K.
Such information will be filed by amendment to this Form 8-K within sixty days
from the due date hereof in accordance with Item 7(a)(4) of Form 8-K.
(b) Pro Forma Financial Information.
It is impracticable for the Registrant to file the pro forma financial
information required by Item 7(b) of Form 8-K. Such information will be filed by
amendment to this Form 8-K within sixty days from the due date hereof in
accordance with Item 7(b)(2) of Form 8-K.
(c) Exhibits.
2.1 Purchase Agreement dated December 9, 1997 by and among Alan Rosoff,
Green SCA Corp., Seed Corporation of America, Green Seed Company
Limited Partnership and AgriBioTech, Inc.
2.2 Omitted Schedules and Exhibits to the Purchase Agreement.
-2-
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AGRIBIOTECH, INC.
(Registrant)
Date: January 20, 1998 /s/ Henry A. Ingalls
--------------------------
Henry A. Ingalls,
Vice President
EXHIBIT INDEX
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Exhibit No. Description
- ----------- -----------
2.1 Purchase Agreement dated December 9, 1997 by and among Alan
Rosoff, Green SCA Corp., Seed Corporation of America, Green Seed
Company Limited Partnership and AgriBioTech, Inc.
2.2 Omitted Schedules and Exhibits to the Purchase Agreement.
-3-
<PAGE>
Exhibit 2.1
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PURCHASE AGREEMENT
- --------------------------------------------------------------------------------
By and among
AGRIBIOTECH, INC.,
as the Buyer,
and
Alan Rosoff
as the Seller,
and
Seed Corporation of America,
(a Maryland corporation)
Green SCA Corp.
(a Maryland corporation)
Green Seed Company Limited Partnership
(A Maryland limited partnership)
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December 9, 1997
- ------------------------------------------------------------------------------
<PAGE>
Table of Contents
<TABLE>
<S> <C> <C>
Section 1. Sale and Purchase of the Securities and the Assets............................. 1
Section 2. Closing........................................................................ 2
Section 3. Description of Components of Purchase Price and Other Payments................. 2
(a) Payment of the Securities Purchase Price to the Seller at Closing.............. 2
(b) Payment of the Asset Purchase Price............................................ 2
(c) Portion of Purchase Price to be Held in Escrow................................. 3
(d) Employment and Non-Competition Agreement; Non-Qualified Stock Option Agreement. 4
(e) Effective Date of the Sale..................................................... 4
Section 4. Representations and Warranties of the Seller................................... 4
(a) Ownership of Shares............................................................ 4
(b) Capacity; Organization; Standing; Capitalization............................... 5
(c) Legal Proceedings.............................................................. 6
(d) Encumbrances................................................................... 6
(e) Trade names, etc............................................................... 6
(f) Patents, etc................................................................... 7
(g) Financial Statements........................................................... 7
(h) Absence of Certain Changes..................................................... 8
(i) Tax Matters.................................................................... 8
(j) Accounts Receivable; Inventory................................................. 9
(k) Title and Condition of Properties.............................................. 9
(l) Description of Material Contracts.............................................. 10
(m) Default; Violations or Restrictions............................................ 11
(n) Court Orders and Decrees....................................................... 12
(o) Books and Records.............................................................. 12
(p) Pension and Welfare Plans...................................................... 12
(q) Insurance...................................................................... 13
(r) Rights of Third Parties........................................................ 14
(s) Powers of Attorney............................................................. 14
(t) Labor Matters.................................................................. 14
(u) Relationships with Vendors and Customers....................................... 14
(v) Approvals and Authorizations................................................... 14
(w) Compensation Plans............................................................. 15
(x) Governmental Licenses.......................................................... 15
(y) Brokers........................................................................ 15
(z) Compliance With Laws........................................................... 15
(aa) Guarantees..................................................................... 16
(bb) Benefits....................................................................... 16
</TABLE>
i
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Table of Contents
<TABLE>
<S> <C> <C>
(cc) No Legal or Tax Advice......................................................... 16
(dd) Schedules...................................................................... 16
(ee) Accuracy....................................................................... 17
Section 5. Sale of Assets
(a) Representations and Warranties of Rosoff....................................... 17
(b) Costs and Fees................................................................. 20
Section 6. Representations and Warranties of the Buyer.................................... 20
(a) Legal Proceedings.............................................................. 20
(b) Capacity....................................................................... 20
(c) Organization................................................................... 20
(d) Consents and Approvals......................................................... 21
(e) Binding Obligation............................................................. 21
(f) Brokers; Finders............................................................... 21
(g) Accuracy....................................................................... 21
Section 7. Condition of Assets............................................................ 21
Section 8. Risk of Loss; Damage to or Destruction of Assets............................... 22
Section 9. Condemnation of Real Property.................................................. 22
Section 10. Survival of Representations and Warranties; Indemnification.................... 22
(a) Survival of Representations and Warranties..................................... 22
(b) Indemnity by Seller............................................................ 23
(c) Indemnification by Buyer....................................................... 23
(d) Defense of Claims.............................................................. 23
Section 11. Covenants of the Seller........................................................ 25
(a) Further Assurances............................................................. 25
(b) Access to the Companies; Confidentiality....................................... 25
(c) Conduct of Business Pending Closing............................................ 25
(d) Closing Documents.............................................................. 29
Section 12. Covenants of Rosoff............................................................ 29
Section 13. Covenants of the Buyer......................................................... 29
(a) Closing Documents.............................................................. 29
(b) Noninterference................................................................ 29
(c) Confidentiality................................................................ 29
(d) Distributions for Income Taxes................................................. 29
</TABLE>
ii
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Table of Contents
<TABLE>
<S> <C> <C>
Section 14. Conditions Precedent to the Buyer's Obligations................................ 30
Section 15. Conditions Precedent to the Seller's Obligations............................... 32
Section 16. Conditions Precedent to Obligations of the Seller and the Buyer................ 33
(a) Due Diligence.................................................................. 33
(b) No Injunctions................................................................. 33
(c) Consents....................................................................... 33
(d) Corporate Proceedings.......................................................... 33
(e) Status of Schedules and Exhibits as of Signing Date............................ 34
(f) Updated Schedules.............................................................. 34
Section 17. Termination.................................................................... 34
Section 18. The Buyer's Obligations at Closing............................................. 35
Section 19. The Seller's Obligations at Closing............................................ 35
Section 20. Subsequent Events.............................................................. 35
Section 21. Parties in Interest............................................................ 35
Section 22. Entire Agreement............................................................... 35
Section 23. Governing Law.................................................................. 36
Section 24. Expenses....................................................................... 36
Section 25. Arbitration.................................................................... 36
Section 26. Severability................................................................... 36
Section 27. Notices........................................................................ 37
Section 28. Non-Waivers.................................................................... 38
Section 29. Assignment..................................................................... 38
Section 30. Disclosure..................................................................... 38
Section 31. Miscellaneous.................................................................. 38
</TABLE>
iii
<PAGE>
Table of Contents
<TABLE>
<S> <C> <C>
(a) Further Assurances............................................................. 38
(b) Headings....................................................................... 38
(c) Counterparts................................................................... 38
</TABLE>
iv
<PAGE>
SCHEDULES AND EXHIBITS TO THE
PURCHASE AGREEMENT BY AND AMONG
AGRIBIOTECH, INC., ALAN ROSOFF, GREEN SCA CORP.
AND GREEN SEED COMPANY LIMITED PARTNERSHIP
<TABLE>
<S> <C> <C>
Schedule 1 Warehouse and Real Property; Permitted Encumbrances
Schedule 3(a)(3) Promissory Notes of the Companies
Schedule 4(b)(1) Third party consents
Schedule 4(b)(2) Seedco and GSC Subsidiaries etc.
Schedule 4(b)(3) Qualification
Schedule 4(c)(1) Pending Litigation
Schedule 4(c)(2) Complaints from Customers, etc.
Schedule 4(c)(3) Claims related to Products and Services
Schedule 4(c)(4) Returns
Schedule 4(d) Encumbrances
Schedule 4(e) Trademarks, Tradenames, etc.
Schedule 4(f) Patents
Schedule 4(g) Financial Reports
Schedule 4(h) Material Changes
Schedule 4(j) Inventory
Schedule 4(k) Real and Personal Property
Schedule 4(l) Material Contracts
Schedule 4(m) Violations or Restrictions
Schedule 4(n) Court Orders and Decrees
Schedule 4(o) Books and Records
Schedule 4(p) Pension, Profit Sharing Plans, etc.
Schedule 4(q) Insurance
Schedule 4(r) Rights of Third parties
Schedule 4(s) Powers of Attorney
Schedule 4(u) Vendors and Customers
Schedule 4(w) Compensation Plans and Arrangements
Schedule 4(x) Governmental and Administrative Licenses, Permits, etc.
Schedule 4(z) Compliance with Laws
Schedule 4(aa) Personal Guarantees by Seller
Schedule 4(bb) Vacation and Other Employee Benefits
Schedule 5(a)(11) Hazardous Material and Nuisance
Exhibit 3(c) Escrow Agreement
Exhibit 3(d)(1) Employment and Non-Competition Agreement
Exhibit 3(d)(2) Non-Qualified Stock Option Agreement
Exhibit 13(i) Opinion of Counsel to Seller
Exhibit 15(d) Opinion of counsel to Buyer
</TABLE>
v
<PAGE>
PURCHASE AGREEMENT
------------------
PURCHASE AGREEMENT (the "Agreement") dated December 9, 1997 (the "Signing
Date"), by and among Alan Rosoff ("Rosoff" or "Seller"), Green SCA Corp.
("GSC"), a Maryland corporation, Seed Corporation of America ("Seedco"), a
Maryland corporation, Green Seed Company Limited Partnership ("Green Seed"), a
Maryland limited partnership, (GSC, Seedco and Green Seed collectively referred
to as the "Companies"), and AgriBioTech, Inc., a Nevada corporation ("ABT" or
the "Buyer").
W I T N E S E T H:
- - - - - - - - -
WHEREAS, (a) Rosoff owns (i) 100% of the issued and outstanding shares of
common stock, $1.00 par value, of Seedco and 100% of the issued and outstanding
shares of common stock, $.01 par value, of GSC (collectively, the "Stock") and
(ii) a 98% limited partnership interest of Green Seed (the "Limited Partnership
Interest") (the Stock and the Limited Partnership Interest collectively
referred to as the "Securities"), and (b) GSC owns a 1% general partnership
interest (the "General Partnership Interest") in Green Seed; and
WHEREAS, the Seller wishes to sell and the Buyer wishes to purchase the
Securities on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, the Seller owns a warehouse (the "Warehouse") and related real
property (the "Real Property") located in Athens, Georgia that is used by the
Companies in their business (the Warehouse and the Real Property collectively,
the "Assets").
WHEREAS, Rosoff wishes to sell and the Buyer wishes to purchase the Assets
on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the terms,
conditions, representations, warranties and covenants appearing in this
Agreement, the parties hereto agree as follows:
SECTION 1. SALE AND PURCHASE OF THE SECURITIES AND THE ASSETS.
--------------------------------------------------
(a) Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing (as hereinafter defined), the Seller shall sell,
transfer and deliver to the Buyer, and the Buyer shall purchase from the Seller,
the Securities, free and clear of all liens, mortgages, deeds of trust, security
interests, pledges, charges, encumbrances, liabilities and claims of every kind,
except the pledge to secure loans to the Companies by Heller Financial, Inc.
("Heller").
(b) Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing, effective as of the Effective Date (as hereinafter
defined), Rosoff shall sell, assign, transfer and deliver to the Buyer, and the
Buyer shall purchase, acquire, accept and take possession of all of Rosoff's
right, title and interest in and to Assets, as more particularly described in
Schedule 1
<PAGE>
attached hereto, free and clear of all liabilities, obligations, liens, security
interests and encumbrances of any character whatsoever, except permitted
encumbrances as described in Schedule 1.
(c) The purchase price (the "Purchase Price") shall be payable as follows:
(1) NINE MILLION ONE HUNDRED FIFTY THOUSAND AND 00/100 ($9,150,000)
DOLLARS (the "Securities Purchase Price"), payable by the Buyer to the Seller
for the Securities to be made on the Closing Date (as hereinafter defined),
shall be paid as described in and subject to adjustment as set forth in Section
3 below; and
(2) FIVE HUNDRED FIFTY THOUSAND AND 00/100 ($550,000) DOLLARS (the
"Asset Purchase Price"), payable by the Buyer to Rosoff for the Assets, shall be
paid in cash or other immediately available funds.
SECTION 2. CLOSING.
--------
The closing of the sale and purchase of the Securities and the Assets
provided for in Section 1 of this Agreement (the "Closing") shall take place at
the offices of Gordon, Feinblatt, Rothman, Hoffberger and Hollander, LLC, 233
East Redwood Street, Baltimore, Maryland, at 10:00 a.m. on January 9, 1998, or
at such other date, time or location as may be agreed to by the parties (the
"Closing Date").
SECTION 3. DESCRIPTION OF COMPONENTS OF PURCHASE PRICE AND OTHER PAYMENTS.
--------------------------------------------------------------
(a) Payment of the Securities Purchase Price to the Seller at Closing.
-----------------------------------------------------------------
Upon the completion by the parties of their respective closing conditions under
this Agreement, the Buyer shall pay to the Seller the Securities Purchase Price,
in exchange for delivery of the Securities at the Closing as follows.
(1) Cash in the amount of NINE MILLION ONE HUNDRED FIFTY THOUSAND AND
00/100 ($9,150,000) DOLLARS in immediately available funds by Fedwire or other
method reasonably acceptable to Seller.
(2) The cash payable under subsection (1) hereof shall be reduced by
the amount of any cash distributions in 1997 to Rosoff or Morrison in excess of
$590,000. The foregoing shall not prohibit payments to Rosoff for salary and
expense reimbursements in accordance with past practice, and bonus payments of
an aggregate of $50,000 payable to Rosoff and Jane Rosoff by December 31, 1997.
(3) At the Closing Buyer shall also pay to Rosoff any amounts due him
under the promissory notes by the Companies listed in Schedule 3(a)(3).
(b) Payment of the Asset Purchase Price. Upon the completion by the
-----------------------------------
parties of their respective closing conditions under this Agreement, the Buyer
shall pay to Rosoff the Asset Purchase Price in cash or other immediately
available funds.
2
<PAGE>
(c) Portion of Purchase Price to be Held in Escrow. At the Closing, the
----------------------------------------------
Seller shall set-aside Two Hundred Thousand and 00/100 ($200,000) Dollars from
the Purchase Price (the "Escrow Funds") for the benefit of the Buyer as
described below pursuant to the Escrow Agreement attached hereto as Exhibit
3(c). The Escrow Funds shall either be (i) placed in an interest-bearing
account with a bank or other financial institution or (ii) invested in United
States Government securities, short term certificates of deposit, money market
securities, investment grade commercial paper or other short-term interest-
bearing investment-grade securities.
(1) The Escrow Funds shall be made available to the Buyer in the event
of any Claims arising pursuant to Section 10(b) hereof for which Buyer is
entitled to payment and which have not otherwise been paid, subject to the
$25,000 threshold set forth in Section 10(d) hereof.
(2) (i) The Escrow Funds shall be reduced to the levels set forth in
the following schedule, plus the amount of any outstanding unsettled claims,
subject to the provisions of subsection 2(ii) below:
<TABLE>
<CAPTION>
DATE ESCROW FUNDS($)
---- --------------
<S> <C>
Closing $200,000
First Anniversary of Closing Date 100,000
Second Anniversary of Closing Date 50,000
Third Anniversary of Closing Date -0-
</TABLE>
(ii) In the event that no federal, state, local or other tax return of
any of Seedco, GSC or Green Seed is under audit by the Internal Revenue Service
or other state, local or other tax authority on the second anniversary of the
Closing Date or if any such prior audit does not result in any tax liability of
Seller with respect to Seedco, GSC or Green Seed for any of the taxable years
ended December 31, 1995, 1996 or 1997 in amounts aggregating more than $25,000,
or if any resulting tax liability in excess of $25,000 has been paid by Rosoff,
the Escrow Funds shall be reduced to the levels set for forth in the following
schedule, plus the amount of any outstanding unsettled claims:
<TABLE>
<CAPTION>
DATE ESCROW FUNDS($)
---- ---------------
<S> <C>
Closing $200,000
First Anniversary of Closing Date 100,000
Second Anniversary of Closing Date -0-
</TABLE>
3
<PAGE>
(3) Any interest accrued on the Escrow Funds shall inure to the
benefit of the Seller.
(d) Employment and Non-Competition Agreement; Non-Qualified Stock Option
--------------------------------------------------------------------
Agreement. In addition to the purchase and sale of the Securities as described
- ---------
above, Seller agrees that at the Closing Rosoff and his wife, Jane Rosoff, shall
both enter into Employment and Non-Competition Agreements with the Buyer in the
form annexed hereto as Exhibit 3(d)(1), in consideration of which Buyer shall
make cash payments at the Closing of $200,000 to Rosoff and $100,000 to Jane
Rosoff, and Rosoff and Jane Rosoff each shall be granted six year non-qualified
stock options to purchase 125,000 shares of ABT common stock at an exercise
price equal to the closing price of ABT common stock on the NASDAQ on the
trading day immediately preceding the Closing Date in accordance with the
schedule set forth in the Non-Qualified Stock Option Agreement with the Buyer in
the form annexed hereto as Exhibit 3(d)(2).
(e) Effective Date of the Sale. In the event that the Closing is
--------------------------
consummated, the parties hereto agree that the purchase and sale of the Stock
shall be accounted for as if such transactions had occurred prior to the opening
of business on January 1, 1998 (the "Effective Date"), regardless of when the
Closing in fact occurs. In the event that the Closing is consummated, the Buyer
shall realize any operating profit or loss from the operation of the business of
the Companies after the Effective Date. Accordingly, the Seller agrees to
consult the Buyer on any material issues or contracts which relate to a period
of time beyond the Effective Date. Furthermore, except as provided in Section
11(c), the Seller agrees not to enter into any new capital obligations or
capital expenditures which relate to the Corporation prior to the Closing.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller warrants
--------------------------------------------
and represents to the Buyer as follows (as used herein, "Seller's best
knowledge" or "to the best knowledge of the Seller" shall mean information
actually known by the Seller without due inquiry):
(a) Ownership of Shares. The Seller is the owner, beneficially and of
-------------------
record, of the Securities, which comprise 100% of the issued and outstanding
shares of common stock of Seedco, 100% of the issued and outstanding shares of
common stock of GSC and a 98% limited partnership interest in Green Seed. GSC is
the owner, beneficially and of record of a 1% general partnership interest in
Green Seed. The Stock is the sole voting stock of Seedco and GSC and is duly
authorized, validly issued, fully paid and non-assessable. The partners of Green
Seed are Rosoff, GSC and Alan Morrison ("Morrison"), who owns a 1% limited
partnership interest (collectively, the "Partners"). All of the partnership
interests in Green Seed are owned by the Partners, and Green Seed is duly
organized, validly existing and in good standing under the laws of Maryland. The
Securities have not been pledged, mortgaged or otherwise encumbered in any way
and there is no lien, mortgage, charge, claim, liability, security interest or
encumbrance of any nature against the Securities, except the pledge to secure
the loans to the Companies by Heller. There are no options, warrants, rights of
subscription or conversion, calls, commitments, agreements, arrangements,
understandings, plans, contracts, proxies, voting trusts, voting agreements or
instruments of any kind or character, oral or written, to which the Seller,
Seedco or GSC is a party, or by which the Seller, Seedco or GSC is bound,
relating to the issuance, voting or sale of the Stock or any authorized but
4
<PAGE>
unissued shares of capital stock of Seedco or GSC or of any securities
representing the right to purchase or otherwise receive any such shares of
capital stock of Seedco or GSC other than an agreement dated May 28, 1997 among
the Companies, Rosoff and Morrison (the "Morrison Agreement"). There are no
arrangements, undertakings, plans, contacts or instruments of any kind or
character, oral or written, to which any of the Partners is a party relating to
the sale of, or conveying the right to any other person or entity to acquire,
any partnership interest in Green Seed other than the Morrison Agreement. There
are no stockholder or partnership agreements, preemptive rights or other
agreements, arrangements, groups, commitments or understandings, oral or
written, that have not been disclosed to the Buyer, relating to the voting,
issuance, acquisition or disposition of shares of GSC or Seedco, or Partnership
interests of Green Seed, or the conduct or management of Seedco or GSC by its
Board of Directors or Green Seed by its General Partner. The Seller has good and
marketable title to the Securities and full right to transfer title to the
Securities, subject to any restrictions imposed by state or federal securities
laws, free and clear of all liens, mortgages, charges, liabilities, claims,
security interests or encumbrances of every type whatsoever, except the pledge
to secure the loans to the Companies by Heller and the Morrison Agreement. The
sale, conveyance, transfer and delivery of the Securities by the Seller to the
Buyer pursuant to this Agreement will transfer full legal and equitable right,
title and interest in the Securities to the Buyer, free and clear of all liens,
mortgages, charges, claims, liabilities, security interests and encumbrances of
any nature whatsoever, except the pledge to secure the loans to the Companies by
Heller.
(b) Capacity; Organization; Standing; Capitalization. The Seller has full
------------------------------------------------
capacity to enter into and perform under this Agreement and all other agreements
and instruments to be entered into in connection with the transactions
contemplated hereby, and to consummate such transactions, and, except as set
forth in Schedule 4(b)(1) of this Agreement, no other consent or joinder of any
other persons or corporations is required to consummate such transactions.
Neither Seedco nor GSC has any subsidiaries. Except as set forth on Schedule
4(b)(2) of this Agreement, neither the Seller nor Seedco nor GSC have any
interest in any entity other than the Green Seed that is engaged, directly or
indirectly, in businesses competitive with those of the Seedco, GSC or ABT.
This Agreement has been, and each of the other agreements and instruments
executed hereunder (the "Other Agreements") will at the Closing, be duly
executed and delivered by the Seller. This Agreement constitutes, and each of
the Other Agreements will constitute, the legal, valid and binding obligation of
the Seller enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights generally or by general
equitable principles. The Companies are duly organized and validly existing
under the laws of the State of Maryland, have full power and authority to
conduct their business as they are now being conducted and, except as disclosed
on Schedule 4(b)(3), are duly qualified to do business in each jurisdiction
where the nature of the property owned or leased, or the nature of the business
conducted by the Companies requires such qualification, except where the failure
to so qualify would not have a material adverse effect on the assets,
liabilities, financial condition or business of any of the Companies. The
Articles of Incorporation of each of Seedco and GSC and all amendments thereto
certified by the Secretary of State of Maryland, their respective By-laws, as
amended to the date of this Agreement, certified by the Secretary of each of
Seedco and GSC, and their respective minutes and stock records, and the Limited
Partnership Agreement of Green Seed, all delivered to the Buyer are complete and
correct. The Companies have all necessary
5
<PAGE>
licenses and authority to operate their business as now being conducted and as
will be conducted after the Closing assuming such business is conducted as now
operated. The authorized capital stock of the Seedco consists of 100,000 shares
of voting common stock, $1.00 par value, of which 25,000 shares are issued and
outstanding; the authorized capital stock of the GSC consists of 5,000 shares of
voting common stock, $.01 par value, of which 100 shares are issued and
outstanding. All of the issued and outstanding shares of Seedco and GSC are
owned by Rosoff and are duly and validly issued, fully paid and non-assessable.
(c) Legal Proceedings.
-----------------
(1) Except as set forth in Schedule 4(c)(1) of this Agreement, neither
the Seller in his capacity as stockholder and/or as officer or director of
Seedco and GSC or in his capacity as limited or general partner in Green Seed,
nor the Companies is a party to any pending litigation, arbitration or
administrative proceeding or, to the best of Seller's knowledge, to any
investigation, and no such litigation, arbitration or administrative proceeding
or investigation that might result in any material adverse change in the
financial condition, business or properties of the Companies or of the Seller is
threatened.
(2) Except as disclosed in Schedule 4(c)(2) to this Agreement, the
Seller and the Companies have no knowledge of and have not received notice of
any complaints, claims or threats, plans or intentions to discontinue commercial
relations or transactions from any customer of the Companies, any purchaser of
goods or services from the Companies, any employee or independent contractor
significant to the conduct or operation of the Companies or its businesses or
any party to any agreement to which any of the Companies is a party.
(3) Except as disclosed in Schedule 4(c)(3), to the best of Seller's
knowledge, there is no claim (whether based on statute, negligence, breach of
warranty, strict liability or any other theory) relating directly or indirectly
to any product manufactured or sold, or any services performed by any of the
Companies.
(4) Except as disclosed in Schedule 4(c) (4), none of the Companies is
under any obligation with respect to the return of goods in the possession of
customers.
(d) Encumbrances. Except as disclosed in Schedule 4(d), there are no
------------
liens, mortgages, deeds of trust, claims, charges, security interests or other
encumbrances or liabilities of any type whatsoever to which any of the assets of
the Companies are subject.
(e) Trade names, etc. The Companies either own or have had assigned to
-----------------
them the trade names, trademarks, service marks, assumed names, copyrights and
registrations therefor, if any (collectively "Trademarks") specified in Schedule
4(e). The Trademarks have been duly issued and have not been canceled, abandoned
or otherwise terminated except as otherwise indicated in Schedule 4(e). Copies
of all trademark assignments are attached to and made a part of Schedule 4(e).
The Companies are not in default under any licenses or agreements relating to
the Trademarks as listed in Schedule 4(e) and all of such licenses and
agreements are in effect. The Companies have
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not granted, and will not grant prior to the Closing, licenses or other rights
to use such Trademarks. No other Trademarks are either owned or used by the
Companies. To the best of Seller's knowledge, the operation of the Companies'
business does not infringe on the Trademarks of any third party. No claim has
been made that there is any such infringement. To the best of the Seller's and
the Companies' knowledge, no Trademark of any other person infringes the
Trademarks of the Companies.
(f) Patents, etc. The Companies own the inventions, letters patent,
------------
applications for letters patent and patent license rights, inventions,
processes, designs, formulas, trade secrets, Plant Variety Protection Act
("PVPA") Certificates, know-how and other industrial property rights
(collectively the "Patents") specified as belonging to it in Schedule 4(f). The
Patents have been duly issued and have not been canceled, abandoned or otherwise
terminated except as otherwise indicated in Schedule 4(f). The Companies are not
in default under any of the licenses or agreements relating to the Patents as
listed in Schedule 4(f) and all of such licenses and agreements are in effect.
The Companies have not granted, and will not grant prior to the Closing,
licenses or other rights to use such Patents. No other Patents are owned or used
by the Companies. To the best of Seller's knowledge, the operation of the
Companies' business does not infringe the Patent rights of any third party. No
claim has been made that there is any such infringement. To the best of the
Seller's and the Companies' knowledge, no Patent of any person infringes the
Patents of the Companies.
(g) Financial Statements.
--------------------
(1) The unaudited financial statements of Seedco and Green Seed as of
and for the period ended September 30, 1997 and the audited financial statements
of Seedco and Green Seed as of and for the periods December 31, 1996 and
December 31, 1995, and the federal income tax return of GSC for the year ended
December 31, 1996 (collectively, "the Financials"), together with the related
notes and schedules, true, correct and complete copies of which are attached
hereto as Schedule 4(g), (i) are in accordance with the books of account and
records of the Companies; (ii) present fairly, and are true, correct and
complete statements of the financial condition and the results of operations of
the Companies as at and for the periods therein specified; and (iii) do not
include or omit to state any fact which renders the Financials misleading.
(2) Except as and to the extent shown or provided for in the
Financials or the notes and schedules thereto or as disclosed in any of the
Schedules to this Agreement or such current liabilities as may have been
incurred since September 30, 1997 in the ordinary course of business, the
Companies have no liabilities or obligations (whether accrued, absolute,
contingent or otherwise) that might be or become a charge against the assets or
liabilities of the Companies; as of September 30, 1997, there was no asset used
by the Companies in their operations that has not been reflected in the
Financials, and, except as set forth in the Financials, no assets have been
acquired by the Companies since such date except in the ordinary course of
business.
(3) Except as disclosed in the Financials or Schedule 4(g) attached
hereto, or from any losses for the period October 1, 1997 to December 31, 1997,
there has been no decrease in stockholders' or
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partners' equity as compared with the amount shown for such stockholders' or
partners' equity as at September 30, 1997, and no material adverse changes in
the financial position of the Companies since September 30, 1997.
(4) The Financials do not include any assets, liabilities, income or
expenses of any entity other than the Companies. All transactions in the years
1995-1997 between the Companies and any other entity in which the Seller is an
officer, director or has an equity interest have been at prices no less
favorable to the Companies than could have been obtained from any independent
third party.
(h) Absence of Certain Changes. Except as disclosed on Schedule 4(h),
--------------------------
since September 30, there has not been any material adverse change in the
condition (financial or otherwise), operations, assets, liabilities, earnings,
business, prospects or results of operations of the Companies.
(i) Tax Matters. Seedco has had in effect, for at least the past three (3)
-----------
years, and GSC has had in effect since 1995, an election under Subchapter S of
the Internal Revenue Code. Each of Seedco, GSC and Green Seed has timely filed
all federal, and all material state and local income tax returns and has timely
filed with all other appropriate governmental agencies all material sales, ad
valorem, franchise and other tax, license, gross receipts and other similar
returns and reports required to be filed by them. Each of Seedco, GSC and Green
Seed has reported all taxable income and losses on those returns on which such
information is required to be reported, and paid or provided for the payment of
all taxes due and payable on said returns or taxes due pursuant to any
assessment received by them, including without limitation, any taxes required by
law to be withheld and/or paid in connection with any officer's or employee's
compensation or due pursuant to any assessment received by them. Rosoff has made
available to the Buyer for inspection copies of income tax returns that are true
and complete copies of the federal and applicable state, local or other income
tax returns filed by each of Seedco, GSC and Green Seed for the taxable years
ended December 31, 1996, December 31, 1995, December 31, 1994 and any other open
tax periods, and shall make available to buyer for review prior to filing,
copies of federal, and applicable state, local or other income tax returns to be
filed by Seller for the year ending December 31, 1997. The Companies shall bear
all expenses and responsibilities for the filing of federal and applicable
state, local or other income tax returns and reports for the taxable year ended
December 31, 1997, and the Buyer hereby covenants and agrees that Seedco, GSC or
Green Seed will not file any amended income tax returns without first notifying
the Seller. The Seller, at his own expense, may participate with the Companies
in the preparation of any amended income tax returns. However, the Companies
shall retain absolute and final control over the decision to file any such
amended returns together with the content of such returns. All tax liabilities
of Seedco, GSC or Green Seed arising through the end of the taxable year ended
December 31, 1996 have been paid. All tax liabilities of Seedco, GSC and Green
Seed arising after December 31, 1996 have been paid or adequately disclosed and
properly reserved for on their books and records and financial statements.
Rosoff is responsible for the payment of all income taxes on income of the
Companies for all periods through December 31, 1997. No federal or applicable
state, local or other tax return of Rosoff, Seedco, GSC or Green Seed for any
period has been or is currently under audit by the Internal Revenue Service or
any state, local or other tax authorities, except the federal income tax returns
of Green Seed for the year ended December 31, 1995. No claim has been made by
federal, state, local or other authorities relating to
8
<PAGE>
any such returns or any audit. For purposes of this Section 4(i), the word
"timely" shall mean that such returns were filed within the time prescribed by
law for the filing thereof, including the time permitted under any applicable
extensions. Rosoff and Seedco, GSC and Green Seed are not aware of any facts
that would constitute the basis for the proposal of any tax deficiencies for
periods after December 31, 1997 or that would change the tax basis of any assets
of Seedco, GSC or Green Seed in existence as at January 1, 1998. All taxes which
Rosoff, Seedco, GSC or Green Seed are required by law to withhold and collect
have been duly withheld and collected, and have been timely paid over to the
proper authorities to the extent due and payable.
(j) Accounts Receivable; Inventory
------------------------------
(1) The accounts receivable of the Companies reflected in the
Financials as at September 30, 1997, and the accounts receivable acquired by
the Companies since such date are valid subsisting claims for the aggregate
amounts thereof reflected in the Financials net of the reserves or allowances
for doubtful receivables reflected in the Financials or thereafter in the
Companies' books and records uniformly maintained in accordance with the
financial statements, accounted for in accordance with generally accepted
accounting principles, and to the Seller's knowledge there is no reason that
would make such accounts receivable, net of such amounts as the Companies have
reserved on their books as of September 30, 1997, taken as a whole, not
collectible.
(2) Except as disclosed on Schedule 4(j), the inventory of the
Companies reflected in the Financials as at September 30, 1997, and the
inventory acquired by the Companies since such date (i) has been purchased in
the ordinary course of business, (ii) has been fully paid for unless otherwise
reflected in the Financials, (iii) is marketable or adequate provision for
obsolescence has been provided and (iv) Seller knows of no reason that would
make such inventory, net of such amounts as the Companies have reserved on their
books as of September 30, 1997, taken as a whole, not marketable.
(k) Title and Condition of Properties. The Companies do not own any real
---------------------------------
property, except as disclosed on Schedule 4(k). Except as disclosed on Schedule
4(k), the Companies have good and marketable title to all properties and assets,
real and personal, tangible and intangible, reflected in the Financials and all
properties acquired subsequent to September 30, 1997, which have not been
disposed of in the ordinary course of business since September 30, 1997, which
property is subject to no mortgage, lien, deed of trust, claim, security
interest, liability, conditional sales agreement, easement, right-of-way or any
other encumbrance except as disclosed on Schedule 4(k).
Schedule 4(k) contains an accurate list of all leases and other
agreements under which any of the Companies is lessee of any personal property,
including all truck and car leases. Each of the real property and personal
property leases and agreements is in full force and effect, is not subject to
any breaches or defaults, and constitutes the legal, valid and binding
obligation of the parties thereto.
All personal property, machinery and equipment which are material to
the business, operations or condition (financial or otherwise) of the Companies
is in operating condition and,
9
<PAGE>
subject to routine maintenance and ordinary wear and tear, have been maintained
in accordance with reasonable industry standards and is suitable for the purpose
for which it is used. Except as disclosed in Schedule 4(k), neither the Seller
nor any of the Companies is aware of or has received notice of, the violation of
any applicable zoning regulation, ordinance or other law, order, regulation or
requirement in force on the date hereof relating to any of the Companies'
business or its owned or leased real or personal properties, with which the
Companies have not complied.
(l) Description of Material Contracts. Schedule 4(l) contains a complete
---------------------------------
and correct list as of the date hereof of all agreements, contracts and
commitments, obligations and understandings of the following types, written or,
oral, to which any of the Companies is a party, by which any of the Companies
has any rights or by which any of Companies or any of the Companies' properties
may be bound, as of the date hereof: (i) mortgages, indentures, security
agreements and other agreements and instruments relating to the borrowing of
money or extension of credit; (ii) employment and consulting agreements with
annual compensation in excess of $40,000; (iii) collective bargaining
agreements; (iv) bonus, profit-sharing, compensation, stock option, pension,
retirement, deferred compensation or other plans, agreements, trusts, funds or
arrangements for the benefit of employees (whether or not legally binding); (v)
sales agency, manufacturer's representative or distributorship agreements; (vi)
agreements, orders or commitments for the purchase by the Companies of
materials, supplies or finished products exceeding $5,000 in the aggregate from
any one person; (vii) agreements, orders or commitments for the sale by the
Companies of its products or services exceeding $5,000; (viii) agreements or
commitments for capital expenditures in excess of $5,000 for any single project
(it being warranted that the commitment for all undisclosed contracts for such
agreements or commitments does not exceed $5,000 in the aggregate); (ix)
agreements relating to research; (x) agreements relating to PVPA Certificates or
licenses or other rights to use PVPA Certificates; (xi) agreements relating to
the payment of royalties; (xii) seed purchase contracts or other contracts with
growers; (xiii) brokerage or finder's agreements; (xiv) joint venture
agreements; and (xv) other agreements, contracts and commitments which
individually or in the aggregate for any one party involve any expenditure by
the Corporation of more than $5,000.
The Companies have made available to the Buyer complete and correct
copies of all written agreements, contracts, commitments, obligations and
undertakings, together with all amendments thereto, listed on the Schedules
hereto, and such Schedules contain accurate descriptions of all oral agreements
listed on such Schedules. To the best of Seller's knowledge, all such
agreements, contracts, commitments, obligations and undertakings are in full
force and effect and, except as disclosed in Schedule 4(l), all parties to, or
otherwise bound by, such agreements, contracts, commitments, obligations and
undertakings have performed all obligations required to be performed by them to
date and none of the Companies are in default and no event, occurrence,
condition or act exists which gives rise to (or which with notice or the lapse
of time, or both, could result in) a default or right of cancellation,
acceleration or loss of contractual benefits under, any such contract,
agreement, commitment, obligation or undertaking. There has been no threatened
cancellations thereof, and there are no outstanding disputes under any such
contract, agreement, commitment, obligation or undertaking. Except as set forth
in Schedule 4(1), no consent of any party is required under any such contract,
agreement, commitment, obligation or undertaking which
10
<PAGE>
would make such agreements not binding and in full force and effect as of the
Closing Date. Any contracts, agreements, leases or commitments held in the name
of the Seller and set forth in the Schedules hereto shall be assigned to either
the Buyer or the Companies prior to the Closing Date.
Except as otherwise set forth in Schedule 4(l), to the best of
Seller's knowledge, each contract, lease, instrument and commitment required to
be described in the Schedules hereto is, on the date hereof, and will be at the
Closing, in full force and effect and is and will constitute a valid and binding
obligation of the Companies and the respective parties to such agreements, and
there is not, under any such contract, lease, instrument or commitment, any
existing default by the Companies or such other parties or any event that, with
notice, lapse of time or both, would constitute a default by the Companies or
such other parties in respect of which adequate steps have not been taken to
cure such default or to prevent a default from occurring or continuing. Any
contracts, leases or commitments held in the names of the Seller and listed on
the Schedules shall be assigned either to the Buyer or the Companies prior to
the Closing Date.
No agreement, contract, commitment, obligation or undertaking listed
on the Schedules hereto to which the Companies are a party or by which any of
them or any of their properties is bound, except as specifically set forth in
Schedule 4(l), contains any provision which materially adversely affects or in
the future may (so far as the Seller and the Companies can reasonably now
foresee) materially adversely affect the condition, properties, assets,
liabilities, business, operations or prospects of the Companies following the
date hereof and upon the Closing Date. Furthermore, to the best of the Seller's
knowledge, the material suppliers, customers and clients of the Companies will
continue to supply and purchase from the Companies after the Closing.
(m) Default; Violations or Restrictions. Except as set forth in Schedule
-----------------------------------
4(m), the execution, delivery and performance of this Agreement and of any
agreement to be executed and delivered by the Companies in connection with the
transactions contemplated hereby and the consummation of any of the transactions
contemplated hereby or thereby will not (or with the giving of notice or the
lapse of time or both would) result in the breach of any term or provision of
the Articles of Incorporation or by-laws of GSC or Seedco, or the Certificate
of Limited Partnership of Green Seed, or violate any provision of or result in
the breach of, modification of, acceleration of the maturity of obligations
under, or constitute a default, or give rise to any right of termination,
cancellation, acceleration or otherwise be in conflict with or result in a loss
of contractual benefits to the Companies, under any law, order, writ,
injunction, decree, statute, rule or regulation of any court, governmental
agency or arbitration tribunal or any of the terms, conditions or provisions of
any contract, lease, note, bond, mortgage, deed of trust, indenture, license,
security agreement, agreement or other instrument or obligation by which the
Companies or the Seller are a party or by which any of them may be bound, or
require any consent, approval or notice under any law, rule or decree or any
such document or instrument; or result in the creation or imposition of any
lien, claim, restriction, charge or encumbrance upon the Companies' assets or
interfere with or otherwise adversely affect the ability to carry on the
business of the Companies after the Closing Date on substantially the same basis
as it is now conducted by the Companies.
11
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(n) Court Orders and Decrees. Except as set forth on Schedule 4(n), the
------------------------
Companies have not received written or oral notice that there is outstanding,
pending, or threatened any order, writ, injunction or decree of any court,
governmental agency or arbitration tribunal against or affecting the Companies,
the Securities or any of the Companies' assets. To the best of Seller's
knowledge, the Companies are in compliance in all material respects with all
applicable Federal, state, county, municipal (or of any subdivision thereof)
laws, regulations and administrative orders in force at any applicable time to
which the Companies may be subject.
(o) Books and Records. Except as disclosed on Schedule 4(o), the books and
-----------------
records of the Companies are, in all material respects, complete and correct and
have been maintained in accordance with good business practice. True and
complete copies of the Articles of Incorporation and By-laws of Seedco and GSC
and all amendments thereto, and true and complete copies of all minutes,
resolutions, stock certificates and stock transfer records of Seedco and GSC are
contained in the minute books and stock transfer books that have been delivered
to the Buyer for inspection and will be delivered to the Buyer at the Closing.
True and complete copies of the Green Seed Limited Partnership Agreement and all
amendments thereto, and all books and records in whatever form of Green Seed
have been delivered to the buyer for inspection and will be delivered to the
Buyer at the Closing. The minute books, stock certificate books, stock transfer
records and such other books and records as may be requested by the Buyer, as
exhibited to the Buyer and its representatives, are complete and correct in all
material respects except as disclosed in Schedule 4(o).
(p) Pension and Welfare Plans.
-------------------------
(1) Pension and Profit Sharing Plans. Except as disclosed in Schedule
--------------------------------
4(p), the Companies do not have in effect any pension, profit sharing or other
employee benefit plan described under Section 3(2)(A) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). All benefits payable under
any terminated employee pension benefit plan (as such term is defined in Section
3(2)(A) of ERISA) previously maintained by the Companies or to which they have
previously contributed have been paid in full and/or that the Companies do not
have any material unfunded liability in respect of any such plan to the Pension
Benefit Guaranty Companies or to the participants in such plan or to the
beneficiaries of such participants. Each such terminated plan was terminated
substantially in accordance with the applicable provisions of law or any
agreement or contract relating to any such plan and has been terminated without
liability to the Companies.
(2) Welfare Plans. For each plan, fund, or arrangement of the
-------------
Companies which is an employee welfare benefit plan, whether or not currently
maintained (within the meaning of ERISA Section 3(1)) (a "Welfare Plan"), the
following is true:
(i) each such Welfare Plan intended to meet the requirements for
tax-favored treatment under Subchapter B of Chapter 1 of the Code meets such
requirements;
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(ii) there is no voluntary employees' beneficiary association (within
the meaning of Section 501(c)(9) of the Code) maintained with respect to any
such Welfare Plan;
(iii) there is no disqualified benefit (as such term is defined in
Code Section 4976(b)) which would subject the Companies or the Buyer to a tax
under Code Section 4976(a);
(iv) each such Welfare Plan which is a group health plan complies and
has complied with the applicable requirements of Code Section 4980B, and
complies with Sections 9801 through 9806 to the extent that such provisions are
in effect, Title XXII of the Public Health Service Act, and the applicable
provisions of the Social Security Act and is not and has not been a
nonconforming group health plan under Section 5000(c) of the Code;
(v) each such Welfare Plan may be amended or terminated by the
Companies or the Buyer, on or at anytime after, the Closing Date and after any
advance notice to participants or similar measures required by law which are
non-waivable under the Welfare Plan;
(vi) no such Welfare Plan provides for continuing benefits or coverage
for any participant (including past, present or future retirees) or such
participant's beneficiary after termination of employment except as required by
the Consolidated Omnibus Reconciliation Act of 1985 ("COBRA") or any other state
or Federal law; and
(vii) no claims have been made and no other events have occurred that
might form the basis of a claim which has substantially increased or based on
customary insurance industry practice might substantially increase, the premiums
or other charges of the Companies under any Welfare Plan.
(q) Insurance. Schedule 4(q) contains a correct and complete description
---------
of all policies of insurance by or on behalf of the Companies in which any of
the Companies is named as an insured party, beneficiary or loss payable payee.
The Companies have at all times prior to the date hereof maintained and will at
all times prior to the Closing Date maintain insurance coverage with respect to
its properties, in respect of liabilities and risks prudently insured against.
The policies described in Schedule 4(q) are outstanding and in force as of the
date hereof, cover risks normally insured against and are in amounts normally
carried and there is no default notice of cancellation or non-renewal with
respect to any material provision contained in any such policy.
Schedule 4(q) contains a correct and complete description of all such
policies of insurance held by or on behalf of the Companies, premiums paid for
such insurance and all outstanding insurance claims in excess of $5,000 made by
or against any of the Companies for damage to or loss of property or income
which have been referred to insurers or which the Seller believe to be covered
by commercial insurance. Schedule 4(q) also contains a list of all general
comprehensive liability policies carried by the Companies for the past year,
including excess liability policies and any agreements, arrangements or
commitments under which any of the Companies indemnifies any other person or is
required to carry insurance for the benefit of any other person.
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(r) Rights of Third Parties. Other than as disclosed in Schedule 4(r), or
-----------------------
specifically provided for in this Agreement, the Companies have not entered into
any leases, licenses, easements or other agreements, recorded or unrecorded,
granting rights to third parties in any real or personal property of the
Companies, and no person or other corporation has any right to possession, use
or occupancy of any of the property of the Companies.
(s) Powers of Attorney. Except as disclosed in Schedule 4(s), there are no
------------------
persons, firms, associations, corporations or business organizations holding
general or special powers of attorney from the Companies.
(t) Labor Matters. None of the Companies is a party to any collective
-------------
bargaining agreement with any labor union or association. There are no
discussions, negotiations, demands or proposals that are pending or have been
conducted or made with or by any labor union or association, and there are not
pending or threatened any labor disputes, strikes or work stoppages that may
have a material adverse effect upon the continued business or operation of the
Companies. To the best of Seller's knowledge, each of the Companies (i) is in
compliance with all federal and state laws respecting employment and employment
practices, terms and conditions of employment and wages and hours, and (ii) is
not engaged in any unfair labor practices.
(u) Relationships with Vendors and Customers. Except as set forth in
----------------------------------------
Schedule 4(u), the Companies and the Seller have no knowledge of any present
conditions or state of facts or circumstances that would materially adversely
affect the Companies after the Closing Date. The Companies' relationships with
its customers, clients and vendors are satisfactory, and the Companies and the
Seller have no knowledge of any facts or circumstances that might materially
alter, negate, impair or in any way materially adversely affect the continuity
of any such relationships. The Companies and the Seller have no knowledge of any
material outstanding claims of any of its customers or clients presently
outstanding, pending or threatened against the Companies. The Companies and the
Seller has no knowledge of any present or future condition or state of facts or
circumstances that would prevent the business of the Companies from being
carried on by the Buyer after the Closing Date in all material respects in
essentially the same manner as it is presently being carried on.
(v) Approvals and Authorizations. The Companies have obtained all
----------------------------
necessary consents, approvals and authorizations in connection with the
transactions contemplated hereby that are required by law or otherwise in order
for each of the Companies to continue all of its present business following the
Closing Date.
(w) Compensation Plans. Schedule 4(w) contains a correct and complete
------------------
description of all compensation plans and arrangements; bonus and incentive
plans and arrangements; deferred compensation plans and arrangements; stock
purchase and stock option plans and arrangements; hospitalization and other
life, health or disability insurance or reimbursement programs; holiday, sick
leave, severance, vacation, tuition reimbursement, personal loan and product
purchase discount policies and arrangements, policy manuals and any other plans
or arrangements providing for benefits for employees of the Companies.
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(x) Governmental Licenses. Schedule 4(x) contains a correct and complete
---------------------
list of all material governmental and administrative consents, permits,
appointments, approvals, licenses, certificates and franchises that are (i)
necessary for the operation of the Companies, and (ii) required in connection
with Seller's execution, delivery or performance of this Agreement, all of which
have been obtained by the Companies and are in full force and effect.
(y) Brokers. No agent, broker, investment banker, person, or firm acting
-------
on behalf of the Seller, the Companies or any firm or corporation affiliated
with any of them, or under its authority, is or will be entitled to a financial
advisory fee, brokerage commission, finder's fee or other like payment in
connection with the transactions contemplated hereby.
(z) Compliance With Laws.
--------------------
(1) The operations and activities of the Companies have previously and
continue to comply in all material respects with all applicable Federal, state
and local laws, statutes, codes, ordinances, rules, regulations, permits,
judgments, orders, writs, awards, decrees or injunctions (collectively, the
"Laws"), as in effect on or before the date of this Agreement, including,
without limitation, all Laws relating to seed labeling and all rules and
regulations of the Occupational Safety and Health Administration. To the best of
Seller's knowledge, neither the ownership of the Companies nor the conduct of
the business of the Companies as presently conducted conflicts with the rights
of any other person, firm or entity, or violates, or with or without the giving
of notice or the passage of time, or both, will violate, conflict or result in a
default, right to accelerate or loss of rights under, any terms or provisions of
the Articles of Incorporation or By-laws of GSC or Seedco, or the Partnership
Agreement of Green Seed, as presently in effect, or any lien, encumbrance,
mortgage, deed of trust, lease, license, agreement, understanding, or Laws to
which the Companies is a party or by which it may be bound or affected. Except
as disclosed in Schedule 4(z), the Companies have received no notice or
communication from any third party asserting a failure to comply with any Laws,
nor have the Companies received any notice that any authority or third party
intends to seek enforcement against the Companies to compel compliance with any
such Laws.
(2) Except as disclosed in Schedule 4(z), there are no existing claims
or to the best of Seller's knowledge, potential claims that may exist against
the Companies, for, with respect to, or as direct or indirect result of, the
presence on or under, or the escape, seepage, leakage, spillage, discharge, or
emission discharging, from the real property of the Companies of any "Hazardous
Material," including, without limitation, any losses, liabilities, damages,
injuries, costs, expenses, reasonable fees of counsel or claims asserted or
arising under the Comprehensive Environmental Response, Compensation and
Liabilities Act ("CERCLA"), any so-called "Super Fund" or "Super Lien" law or
any other applicable federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree now or at any time hereafter in effect,
regulating, relating to or imposing liability or standards of conduct concerning
any Hazardous Material.
(3) Except as disclosed in Schedule 4(z), since the date first
acquired or leased by the Seller or the Companies, Seller and the Companies have
not placed any "Hazardous Material" on or under the real property owned or
leased by the Companies and, to the best of Seller's
15
<PAGE>
knowledge, there has been no "Hazardous Material" on or under the real property
owned or leased by the Companies.
(4) Except as disclosed in Schedule 4(z), neither the Companies nor
the Seller, nor to the best knowledge and belief of the Seller, any officer,
employee or agent of the Companies acting on their behalf, nor any other person
acting on their behalf, has, directly or indirectly, within the past three (3)
years given, agreed to give, or received any gift or similar benefit to any
customer, supplier, governmental employee or other person who is or may be in a
position to help or hinder the Companies (or assist the Companies in connection
with any actual or proposed transaction) that (i) might subject the Companies to
any damage or penalty in any civil, criminal or governmental litigation or
proceeding, (ii) if not given in the past might have had an adverse effect on
the assets, business or operation of the Companies, or (iii) if not continued in
the future, might adversely affect the assets, the business or the operations or
prospects of the Companies, or that might subject the Companies to suit or
penalty in any private or governmental litigation or proceeding.
(aa) Guarantees. Except as disclosed in Schedule 4(aa) (the "Guarantees"),
----------
the Seller has not personally guaranteed any of the obligations of the business
of the Companies.
(bb) Benefits. All accrued holiday, vacation, sick or other compensation
--------
or benefits to which employees of the Companies are entitled to receive from the
Companies are set forth on Schedule 4(bb). Each of the Companies has an
employee manual that sets forth the Companies' policies with respect to its
employees, and there are no policies other than as set forth in Schedule 4(bb).
(cc) No Legal or Tax Advice. Rosoff is not relying on any legal or tax
----------------------
advice from the Buyer in connection with the transactions contemplated by this
Agreement.
(dd) Schedules. The Seller and the Companies will deliver to the Buyer
---------
complete and correct schedules (the "Schedules"), in form and substance
reasonably acceptable to the Buyer, as described in Section 16(e), specifying
with respect to the business, properties, assets and obligations of the
Companies each and every item in the categories listed as Schedules hereunder,
and complete and correct copies of the documents and other material from which
such Schedules were compiled. The Seller will deliver updated schedules,
supplemented as reasonably required by ABT prior to the Closing Date as
described in Section 16(f).
(ee) Accuracy. No representation, warranty, covenant or statement by the
--------
Seller or the Companies in this Agreement, including the Schedules and Exhibits
attached hereto and the certificates furnished or to be furnished to the Buyer
pursuant hereto, contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact required to be stated
herein or therein or necessary to make the statements contained herein or
therein in light of the circumstances under which they were made, not false or
materially misleading.
SECTION 5. SALE OF ASSETS
--------------
16
<PAGE>
(a) Representations and Warranties of Rosoff. Rosoff warrants and
----------------------------------------
represents to the Buyer as follows:
(1) Title. Rosoff owns and has good, valid and marketable title to
-----
the Assets and full right to transfer title to the Assets free and clear of all
liens, mortgages, charges, liabilities, claims, security interests or
encumbrances of every type whatsoever with the exception of (i) the Security
Deed from Alan M. Morrison and Alan B. Rosoff to Nations Bank of Georgia, N.A.
in the original principal amount of $380,000 dated June 15, 1995, recorded on
June 15, 1995 in Deed Book 1507, page 201 in Athens-Clarke County Records (the
"Nations Bank Security Deed"); and (ii) the Exceptions set forth in Schedule B-
Section II of the Title Insurance Commitment issued by Old Republic National
Title Insurance Company, dated April 11, 1995, a copy of which has heretofore
been provided by Rosoff to the Buyer.
(2) Capacity; Organization; Standing. Rosoff has full capacity to
--------------------------------
enter into and perform under this Agreement, and to consummate such
transactions; and no other consent or joinder of any other persons or entities
is required. This Agreement has been executed and delivered by Rosoff. This
Agreement constitutes the legal, valid and binding obligations of Rosoff
enforceable in accordance with its respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights generally or by
general equitable principles. Rosoff has all necessary licenses and authority
to operate the Business as now being conducted.
(3) Legal Proceedings; Claims. Rosoff is not a party to any pending
-------------------------
litigation, arbitration or administrative proceeding or investigation, with
respect to or relating to the Assets and, to the Rosoff's best knowledge and
belief, no litigation, arbitration or administrative proceeding or investigation
that would have a material adverse effect on the Assets is threatened.
(4) Description of Material Contracts. There are no agreements,
---------------------------------
contracts and commitments, obligations or understandings, whether written or
oral, that relate to the Assets and to which Rosoff is a party, with the
exception of the lease dated May 1995 between Rosoff and Green Seed Company
Limited Partnership (the "Green Seed Lease"). To the best of his knowledge,
there are no agreements, contracts and commitments, obligations or
understanding, whether written or oral, that affect or relate to the Assets by
which the Seller is bound as of the date hereof.
(5) Default; Violations or Restrictions. Rosoff is not in default
-----------------------------------
under, nor to the best of Rosoff's knowledge has any event occurred that, with
the lapse of time or action by a third party, could result in a default under
any outstanding note, indenture, mortgage, contract or agreement to which Rosoff
is bound, relating to the Assets. To the best of Rosoff's knowledge, the
execution, delivery and performance of this Agreement and of any agreement to be
executed and delivered by Rosoff pursuant hereto, and the consummation of any of
the transactions contemplated hereby or thereby will not (or with the giving of
notice or the lapse of time or both would) violate any provision of or result in
the breach of, modification of, acceleration of the maturity of obligations
under, or constitute a default, or give rise to any right of termination,
cancellation or acceleration or otherwise be in conflict with or result in a
loss of contractual benefits to the
17
<PAGE>
Companies, as such relates to the Assets, under any law, order, writ,
injunction, decree, statute, rule or regulation of any court, governmental
agency or arbitration tribunal or any of the terms, conditions or provisions of
any contract, lease, note, bond, mortgage, deed of trust, indenture, license,
security agreement, agreement or other instrument or obligation by which the
Companies are a party or by which they may be bound, or require any consent,
approval or notice under the laws of any such document or instrument, or result
in the creation or imposition of any lien, claim, restriction, charge or
encumbrance upon the Assets, other than the Nations Bank Security Deed, which
Rosoff shall pay in full from the proceeds of the sale of the Assets, at the
time of Closing on the sale of the Assets.
(6) Court Orders and Decrees. Rosoff has not received written or oral
------------------------
notice that there is outstanding, pending, or threatened any order, writ,
injunction or decree of any court, governmental agency or arbitration tribunal
against or affecting the Assets.
(7) Governmental Licenses. To the best of Rosoff's knowledge, there
---------------------
are no governmental and administrative consents, permits, appointments,
approvals, licenses, certificates and franchises related to the Assets that are
required in connection with the Rosoff's execution, delivery or performance of
this Agreement.
(8) Brokers. Rosoff has not entered into and will not enter into any
-------
agreement, arrangement or understanding with any person or firm that will result
in an obligation of the Buyer to pay any finder's fee, brokerage commission, or
similar payment related to the Assets in connection with the transactions
contemplated by this Agreement.
(9) Absence of Undisclosed Liabilities and Conditions. To the best of
--------------------------------------------------
Rosoff's knowledge, there are no currently existing facts that materially
adversely affect or are likely in the future to materially adversely affect the
Assets.
(10) Compliance With Laws. To the best of Rosoff's knowledge, the
--------------------
operations and activities of the Assets have previously and continue to comply
in all material respects with all applicable Federal, state and local laws,
statutes, codes, ordinances, rules, regulations, permits, judgments, orders,
writs, awards, decrees or injunctions (collectively, the "Laws"), as in effect
on or before the date of this Agreement. Rosoff has not received notice of
communication from any third party asserting a failure to comply with any Laws,
nor has Rosoff received any notice that any authority or third party intends to
seek enforcement against it to compel compliance with any such Laws.
(11) Hazardous Material and Nuisance. Except as disclosed in Schedule
-------------------------------
5(a)(11) attached hereto, there are no known claims or potential claims of which
Rosoff is aware which may exist against Rosoff relating to the Assets, for, with
respect to, or as direct or indirect result of, the presence on or under, or the
escape, seepage, leakage, spillage, discharge, or emission discharging, from the
real property of the Rosoffs of any "Hazardous Material," including, without
limitation, any losses, liabilities, damages, injuries, costs, expenses,
reasonable fees of counsel or claims asserted or arising under the Comprehensive
Environmental Response, Compensation and Liabilities Act
18
<PAGE>
("CERCLA"), any so-called "Super Fund" or "Super Lien" law or any other
applicable federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree now or at any time hereafter in effect, regulating,
relating to or imposing liability or standards of conduct concerning any
Hazardous Material. Since the date first acquired or leased by Rosoff, Rosoff
has not placed or stored any "Hazardous Material" (other than the materials
listed in Schedule 4(z))on or under the Real Property or in the Warehouse, and
to the best of Rosoff's knowledge there has been no "Hazardous Material" (other
than the materials listed in Schedule 4(z))on or under the Real Property or in
the Warehouse. Rosoff furthermore represents that Rosoff has obtained any/all
necessary and required permits for insecticides used in connection with the Real
Property or the Warehouse.
(12) Taxes. As of the Signing Date, all taxes, including, without
-----
limitation, income, property, use, franchise sales, and added value, imposed by
any governmental entity whatsoever, that are due or payable by Rosoff in
connection with the Assets, and all interest and penalties thereon, have been
paid in full to the extent that such taxes are due and notice of same has been
received by Rosoff or the Comapnies. Rosoff does not know of any tax deficiency
or claim outstanding, proposed, or assessed against it with respect to any
taxes, including, without limitation, income, property, use, franchise, and
value-added taxes imposed by the United States or by an foreign country or by
any state, municipality, subdivision, or instrumentality of the United States or
of any foreign country, or by any other taxing authority that could have a
material effect on the Buyer, the Assets, or result in the imposition of a tax
lien upon any of the Assets.
(13) Schedules. Rosoff has delivered to the Buyer complete and
---------
correct schedules relating to the Assets, in form and substance reasonably
acceptable to the Buyer, as of the Signing Date, and complete and correct copies
of the documents and other material from which such schedules were compiled.
(14) Accuracy. With respect to the Assets, no representation,
---------
warranty, covenant or statement by Rosoff in this Section 5, the Schedules
attached hereto and the certificates or other documents furnished or to be
furnished to the Buyer pursuant hereto, contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material fact
required to be stated herein or therein, or necessary to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not false or materially misleading.
(15) Leases. There are no leases affecting the Assets other than the
------
Green Seed Lease.
(b) Costs and Fees.
---------------
(1) Rosoff will pay on or before Closing Date (i) one-half the cost of
a title commitment; (ii) one half the real property transfer tax; and (iii) one-
half of the cost of a title policy and a re-issue title policy;
(2) Buyer will pay on or before the Closing Date (i) one half of the
cost of a title commitment (ii) the cost of a survey of the Real Property; (iii)
one-half of the cost of a title policy
19
<PAGE>
and a re-issue title policy; (iv) fees for the recording of the Warranty Deed;
and (v) one half the real property transfer tax.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer warrants
-------------------------------------------
and represents to the Seller as follows:
(a) Legal Proceedings. Neither the Buyer nor any of its executive officers
-----------------
or directors is a party to or affected by any pending litigation, arbitration or
any governmental proceeding or investigation that would in any manner affect its
entering into this Agreement or performing the transactions contemplated hereby
or that might result in any material adverse change in the financial condition,
business or properties of the Buyer, and to the best of Buyer's knowledge, no
such litigation, arbitration, proceeding or investigation is threatened.
(b) Capacity. The Buyer has full right, power and capacity to execute,
--------
deliver and perform its obligations under this Agreement and the other documents
required to be executed by the Buyer in connection herewith and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated by
this Agreement will not, constitute a breach of any term or provision of the
Certificate of Incorporation or By-laws of the Buyer or constitute a default
under any material law, rule, regulation, indenture, instrument, mortgage, deed
of trust, or other agreement or instrument to which the Buyer is a party or by
which it is bound.
(c) Organization. The Buyer is a corporation duly organized, validly
------------
existing and in good standing under the laws of the State of Nevada, and the
Buyer has corporate power and authority to carry on its business as now
conducted and to own, lease or operate the properties and assets now used by it
in connection therewith. The Buyer is duly qualified and in good standing to do
business in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties make such qualification necessary.
(d) Consents and Approvals. No governmental license, permit or
----------------------
authorization, and no registration or filing with any court, governmental
authority or regulatory agency, is required in connection with the Buyer's
execution, delivery or performance of this Agreement. The Buyer shall execute,
deliver and perform its obligations under this Agreement, and no consent or
other approval of any other party is required to be obtained by the Buyer in
connection with the transactions contemplated hereby.
(e) Binding Obligation. This Agreement has been duly executed and
------------------
delivered by the Buyer and constitutes the legal, valid and binding obligation
of the Buyer, enforceable against the Buyer in accordance with its terms, except
to the extent that such enforceability may be limited by general principles of
equity or bankruptcy, insolvency and other similar laws affecting the
enforcement of creditors' rights generally. All action of the Board of
Directors of the Buyer and all other corporate action necessary to authorize the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby has been duly and validly taken.
20
<PAGE>
(f) Brokers; Finders. No agent, broker, investment banker, person or firm
----------------
acting on behalf of the Buyer or any firm or corporation affiliated with the
Buyer or under its authority is or will be entitled to any brokers' or finders'
fee or any other commission or similar fee in connection with any of the
transactions contemplated hereby.
(g) Accuracy. No representation, warranty, covenant or statement by the
--------
Buyer in this Agreement, including the Schedules and Exhibits attached hereto
and the certificates furnished or to be furnished to the Seller pursuant hereto,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact required to be stated herein or therein or
necessary to make the statements contained herein or therein in light of the
circumstances under which they were made, not false or materially misleading.
SECTION 7. CONDITION OF ASSETS.
-------------------
(a) Except as otherwise provided herein, the Assets will be sold "as is,
where is and with all faults."
(b) Except as otherwise provided herein, Rosoff makes no representations or
warranties with respect to the physical condition or any other aspect of the
Assets, including without limitation, the structural integrity of any
improvements on the Assets, the conformity of the improvements to any plans or
specifications for the Assets that may be provided to Buyer, the conformity of
the Assets to applicable zoning or building code requirements, the existence of
soil stability, past soil repairs, nonsusceptibility to landslides, sufficiency
or undershoring, sufficiency of drainage, or any other matter affecting the
stability or integrity of the land or any buildings or improvements situated
thereon.
(c) It is understood and agreed that the Asset Purchase Price has been
adjusted by prior negotiation to reflect that the Assets are sold by Rosoff and
purchased by Buyer subject to the foregoing.
SECTION 8. RISK OF LOSS; DAMAGE TO OR DESTRUCTION OF ASSETS.
------------------------------------------------
Rosoff assumes all risks and liability for damage or injury occurring to
the Assets by fire, storm, accident, or other casualty until the Closing has
been consummated. Notwithstanding the foregoing, if the Assets sustain major or
material damage during the period from and after the date hereof and prior to
the Closing caused by fire or other casualty, the Closing will take place as
provided herein without abatement of the Purchase Price and Rosoff will have no
obligation of repair or replacement, provided, however, that all insurance
proceeds payable with respect to such casualty shall be assigned to Buyer.
Rosoff agrees to maintain the current insurance coverage on the Assets through
the Closing Date.
21
<PAGE>
SECTION 9. CONDEMNATION OF REAL PROPERTY.
-----------------------------
In the event that the entire Real Property or any material part thereof
becomes the subject of a condemnation proceeding prior to Closing, Rosoff agrees
immediately to advise Buyer thereof. In the event of such condemnation, Buyer
will have the option to (i) take title in accordance with the terms and
conditions of this Agreement and permit Rosoff to negotiate with the condemning
authority and to receive the condemnation award, reducing the Asset Purchase
Price and by the amount actually received by Rosoff; or (ii) take title in
accordance with the terms and conditions of this Agreement and negotiate with
the said condemning authority for the condemnation award and to receive the
benefits thereof without affecting the Asset Purchase Price. Notice of the
exercise of such option by Buyer will be in writing, delivered to Rosoff at
least ten (10) days prior to the Closing Date. If notice is not received in a
timely manner as required by this Section 9, Buyer will be deemed to have
elected to proceed in accordance with clause (ii) above.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
------------------------------------------------------------
(a) Survival of Representations and Warranties. All representations and
------------------------------------------
warranties made by the Seller or the Buyer in this Agreement, including without
limitation all representations and warranties made in any Exhibit or Schedule
hereto or certificate delivered hereunder, shall survive the Closing until the
second anniversary of the Closing Date (the "Survival Date"); provided, however,
that (i) all representations and warranties made by the Seller in Sections 4(c),
4(p), 4(z), 5(a)(3), and 5(a)(12) hereof shall survive the Closing until the
earlier of one year after the expiration of the applicable statute of
limitations or the fourth anniversary of the Closing Date, and (ii) all
representation and warranties made by the Seller in Sections 4(i) and 5(a)(13)
shall survive the Closing until and through one (1) year after the expiration of
the applicable statute of limitations (the dates referred to in this Section
10(a)(i) and (ii) collectively shall be referred to as the "Extended Survival
Date").
(b) Indemnity by Seller. Provided that the transaction contemplated by
-------------------
this Agreement is closed, the Seller hereby agrees to indemnify, defend and hold
harmless the Buyer from and against all liabilities, losses, costs or damages
whatsoever (including expenses and reasonable fees of legal counsel) ("Claims")
arising out of or relating to Claims made on or prior to the Survival Date or
the Extended Survival Date, if applicable, in the event that it is determined
that such Claims arise out of or from or are based upon (i) the inaccuracy in
any respect of any representation or warranty contained in Section 4 and Section
5 made by the Seller; and (ii) the non-performance by the Seller in any material
respect of any covenant, agreement or obligation to be performed by the Seller
under this Agreement.
(c) Indemnification by Buyer. Provided that the transaction contemplated
------------------------
by this Agreement is closed, the Buyer hereby agrees to indemnify, defend and
hold harmless Rosoff from and against all Claims arising out of or from or based
upon (i) the inaccuracy in any material respect of any representation or
warranty contained in Section 6 by the Buyer; (ii) the non-performance by the
Buyer in any material respect of any covenant, agreement or obligation to be
performed by the Buyer under this Agreement; (iii) any liabilities arising out
of the operation of the business of the
22
<PAGE>
Companies by Buyer after the Closing Date; (iv) any liabilities arising out of
Buyer's failure to perform any obligations under any truck or car leases set
forth in Schedule 4(k) formerly personally guaranteed by Seller; and (v) any
liabilities recorded on the Companies' books as at September 30, 1997, adjusted
to reflect transactions in the normal course of business between September 30,
1997 and the Closing Date, arising out of personal guarantees by Seller of any
obligations of the Companies listed on Schedule 4(aa) hereto, except any
obligations to or indemnification of Morrison.
In the event that the Closing is consummated, the Buyers agree to
indemnify Seller against all costs and expenses with respect to their state and
federal income tax liability for income tax items allocated to them from the
Companies with respect to the period January 1, 1998 through the Closing Date.
(d) Defense of Claims. Whenever any Claim shall arise for indemnification
-----------------
hereunder, the party entitled to indemnification (the "Indemnitee") shall notify
the indemnifying party (the "Indemnitor") in writing within 30 days after the
Indemnitee has actual knowledge that it is entitled to indemnification of such
Claim constituting the basis for such Claim (the "Notice of Claim"). The Notice
of Claim shall specify all facts known to the Indemnitee giving rise to such
indemnification claim and the amount or an estimate of the amount of the
liability arising therefrom.
If the facts giving rise to any such indemnification shall involve any
actual, threatened or possible claim or demand by any person against the
Indemnitee, the Indemnitor shall be entitled (without prejudice to the right of
the Indemnitee to participate at its expense through co-counsel of its own
choosing) to contest or defend such claim at his expense and through counsel of
his own choosing if he gives written notice of his intention to do so to the
Indemnitee within 10 days after receipt of the Notice of Claim; provided that
Indemnitor diligently prosecutes or defends such claim.
The Indemnitee shall not settle any claim that would give rise to
liability on the part of the Indemnitor under the indemnity contained in this
Section without the written consent of the Indemnitor, which consent shall not
unreasonably be withheld. If a firm offer is made to settle a claim or
litigation defended by the Indemnitee and the Indemnitor refuses to accept such
offer within 20 days after receipt of written notice from the Indemnitee of the
terms of such offer, then, in such event, the Indemnitee shall continue to
contest or defend such claim and shall be indemnified pursuant to the terms
hereof. Provided, however, that in the event the Indemnitor refuses to accept
such offer to settle a claim as described above and the Indemnitee continues to
contest or defend such claim, the indemnification provided for herein shall be
deemed to include the value of management's time spent in connection with the
defense of such claim. If a firm offer is made to settle a claim or litigation
and the Indemnitor notifies the Indemnitee in writing that the Indemnitor
desires to accept and agree to such settlement, but the Indemnitee elects not to
accept or agree to it, the Indemnitee may continue to contest or defend such
claim or litigation and, in such event, the total maximum liability of the
Indemnitor to indemnify or otherwise reimburse the Indemnitee hereunder with
respect to such claim or litigation shall be limited to and shall not exceed the
amount of such settlement offer, plus reasonable out-of-pocket costs and
expenses (including reasonable attorneys' fees and disbursements) to the date of
notice that the Indemnitor desires to accept such settlement.
23
<PAGE>
Notwithstanding any provision of this Agreement to the contrary, a
potential Indemnitee shall have the right to participate in the defense of any
tax claim or action and to employ separate counsel, but the fees and expenses of
such counsel shall be at the expense of the potential Indemnitee unless (a) the
employment thereof shall have been specifically authorized by the potential
Indemnitor or (b) the potential Indemnitor shall fail to assume the defense and
employ counsel. In no event shall the potential Indemnitor enter into any
settlement with any taxing authority which may have the effect of increasing the
potential Indemnitee's or the Companies' tax liabilities or decreasing the tax
basis of the potential Indemnitee's or the Companies' assets without
acknowledging in writing that the potential Indemnitor is liable to fully
indemnify the potential Indemnitee and/or the Companies for any such increased
tax liability, interest and penalty thereon and any other liabilities arising
therefrom, whether or not the Extended Survival Date has passed. In the event of
a proceeding in a court of competent jurisdiction in which a judgment may be
entered that may have the effect of increasing the potential Indemnitee's or the
Companies' tax liabilities or decreasing the tax basis of the potential
Indemnitee's or the Companies' assets the potential Indemnitor shall acknowledge
in writing that the potential Indemnitor is liable to fully indemnify the
potential Indemnitee and/or the Companies for any such increased tax liability,
interest and penalty thereon and any other liabilities arising therefrom,
whether or not the Extended Survival Date has passed.
Notwithstanding any provision of this Agreement to the contrary, no
claim for indemnification pursuant to this Section 10, except with respect to
the immediately preceding paragraph, by the Indemnitee shall be asserted or
claimed except to the extent any Claim exceeds, in the aggregate, the sum of
$25,000.
Notwithstanding any provision of this Agreement to the contrary,
neither Seller's nor Buyer's maximum liability for indemnification shall exceed
the Purchase Price.
SECTION 11. COVENANTS OF THE SELLER. The Seller hereby covenants and agrees:
-----------------------
(a) Further Assurances. The Seller hereby agrees that, from time to time
------------------
at the reasonable request of the Buyer, and without further consideration,
Seller shall execute and deliver such additional instruments and take such other
action as the Buyer may reasonably require to convey, assign, transfer and
deliver the Securities and otherwise to carry out the terms of this Agreement.
(b) Access to the Companies; Confidentiality.
----------------------------------------
(1) Subsequent to the date hereof and prior to the Closing Date, the
Seller will continue to give to the Buyer, their counsel, accountants, and other
representatives, full and free access to all books and records, financial
information, premises, employees and accountants of the Companies at reasonable
times and upon reasonable notice so that the Buyer may have full opportunity to
make such investigation as it shall desire.
24
<PAGE>
(2) From and after the date of this Agreement until the Closing or the
termination of this Agreement, the Seller and the Companies and their
representatives will maintain the confidentiality of all documents and
information of a confidential nature disclosed by the Buyer in the course of
their negotiations and will in no event use any confidential information for any
purpose other than for the evaluation of the transactions contemplated herein
and in the event of termination of this Agreement will destroy all copies of
documentation may have delivered by the Buyer and will not use any confidential
information from the Buyer for their own benefit.
(c) Conduct of Business Pending Closing. From the date of this Agreement
-----------------------------------
to the Closing Date, except as expressly disclosed in the Schedules to this
Agreement, the Companies shall conduct operations as engaged in at the date of
this Agreement according to the ordinary course of business consistent with past
practice and in compliance with all applicable laws and regulations, and shall
maintain records and books of account in a manner that fairly and currently
reflects their financial condition and results of operations and shall not
engage in any transactions other than as contemplated by this Agreement. The
Companies shall further use their best efforts to preserve their existing
business and relations with their employees, customers, suppliers and others
with whom they maintain business relationships. The Companies further will not
engage in any transaction not in the ordinary course of business, including any
unusual use or transfer of assets, without the prior written consent of ABT.
Buyer acknowledges that it has consented to Seller making capital expenditures
of approximately $75,000 to $100,000 from October 1, 1997 to the Closing Date.
(d) Closing Documents. Provided that the Buyer has fully performed its
-----------------
obligations and Seller's conditions have been satisfied, the Seller and the
Companies shall execute and deliver all instruments and documents required as a
condition precedent to the Closing and take all action required to carry out
the terms of this Agreement and to consummate the transactions contemplated
hereby.
SECTION 12. COVENANTS OF ROSOFF. Rosoff hereby covenants and agrees:
-------------------
(a) Further Assurances. Rosoff hereby agrees that from time to time at the
------------------
reasonable request of the Buyer, and without further consideration, to execute
and deliver such additional instruments and to take such other action as the
Buyer may reasonably require to convey, assign, transfer and deliver the Assets
and otherwise to carry out the terms of this Agreement.
(b) Closing Documents. Rosoff hereby agrees to execute and deliver all
-----------------
instruments and documents required as a condition precedent to the Closing and
take all action required to carry out the terms of this Agreement and to
consummate the transactions contemplated hereby.
SECTION 13. COVENANTS OF THE BUYER. The Buyer hereby covenants and warrants
----------------------
as follows:
(a) Closing Documents. The Buyer shall execute and deliver all instruments
-----------------
and documents required as a condition precedent to the Closing and take all
action required to carry out the terms of this Agreement and to consummate the
transactions contemplated hereby.
25
<PAGE>
(b) Noninterference. The Buyer shall not take or omit to take any action
---------------
that (i) if taken or omitted on or before the date of this Agreement, would make
untrue any of the representations and warranties contained in Section 6 of this
Agreement, or (ii) would interfere with the Buyer's ability to perform or would
prevent performance of any of its obligations under this Agreement or any of the
other agreements or instruments provided for herein.
(c) Confidentiality. From and after the date of this Agreement or until
---------------
the Closing if there is one, the Buyer and their representatives will maintain
the confidentiality of all documents and information of a confidential nature
disclosed by the Seller in the course of their negotiations and the Buyer's due
diligence review and will in no event use any confidential information for any
purpose other than for the evaluation of the transactions contemplated herein
and the financing of this transaction. In the event this Agreement is
terminated, the Buyer will return to Seller all written and computer documents,
materials and discs in its possession and will retain no copies thereof and will
not use any confidential information for its own benefit.
(d) Distributions for Income Taxes. Buyer shall reimburse Seller, on
------------------------------
behalf of Seller or Morrison, for income tax liabilities (as hereinafter
defined) in excess of an aggregate of $590,000 (previously disbursed by the
Companies to Seller or Morrison), but only to a maximum of $140,000. For
purposes of this Section 13(d), income tax liabilities shall mean the tax
liability for income taxes owed by Seller or Morrison, as finally determined by
any tax audit or examination conducted by the Internal Revenue Service, that is
attributable to the income of the Companies for 1997. Such amount shall include
the net impacts on income tax liabilities for 1995, 1996 and 1997 of items which
would have been (i) reported in the 1997 income tax returns of the Companies,
but due to the Internal Revenue Service examination of the income tax returns of
the Companies, have been adjusted to be reported in 1995 or 1996; or (ii) were
reported in the 1995 or 1996 income tax returns of the Companies, but due to
such Internal Revenue Service examination, have been adjusted to be reported in
1997. Such amount shall exclude any interest or penalties due and owing as a
result of such examination or audit. To the extent that cash distributions
hereunder shall exceed income tax liabilities as adjusted above, Seller promptly
shall contribute or cause to be contributed any such excess to the Companies.
SECTION 14. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS. The obligations
-----------------------------------------------
of the Buyer under this Agreement are subject to the following conditions:
(a) There shall not have been any material breach of the representations,
warranties, covenants and agreements of the Seller or the Companies contained in
this Agreement or the Schedules and Exhibits hereto.
(b) The Seller and the Companies shall have performed and complied in all
material respects with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by them prior to or at the Closing
Date. All documents and instruments required in connection with this Agreement
shall be reasonably satisfactory in form and substance to the Buyer.
26
<PAGE>
(c) There shall have been no material adverse change in the condition
(financial or otherwise), business, assets, liabilities, properties, business,
results of operation, or earnings of the Companies on a collective basis since
September 30, 1997. A loss for the period October 1, 1997 to December 31, 1997
comparable to the prior fiscal year or budget would not be considered a
"material adverse change" for purposes of this Subsection.
(d) There shall be no outstanding actions or threats of action by any party
that may materially adversely effect the condition (financial or otherwise),
business, assets, liabilities, properties, business, results of operation, or
earnings of the Companies on a collective basis or the Assets.
(e) The Buyer shall have received a certificate dated the Closing Date and
signed by the Seller certifying that the conditions specified in subsections
(a), (b) (c)and (d) above have been fulfilled. To the extent that any
representations, warranties, covenants and agreements of the Seller contained in
this Agreement are not true at the Closing as if made at the Closing, such
changes shall be described in such certificate.
(f) [Intentionally Left Blank]
(g) The Seller shall have obtained and delivered to the Buyer any required
consents or approvals of any third parties whose consent is required to the
transactions contemplated hereunder.
(h) The Buyer shall have received originals or certified copies, reasonably
satisfactory in form and substance to the Buyer, of all such organizational and
governing documents of the Companies as the Buyer shall reasonably require,
including without limitation the following:
(1) the Articles of Incorporation of Seedco and GSC, and all
amendments thereto and restatements thereof and the Certificate of Limited
Partnership of Green Seed, certified as of a recent date by the Maryland State
Department of Assessments and Taxation;
(2) the By-laws of each of Seedco and GSC and all amendments thereto
and restatements thereof certified as of the Closing Date by an officer thereof,
and the Limited Partnership Agreement and all amendments thereto and
restatements thereof, certified as of the Closing Date by the General Partner of
Green Seed;
(3) Certificates of Existence of the Maryland State Department of
Assessments and Taxation, certifying as of a recent date that each of the
Companies is in existence under the laws of that State;
(4) copies of the minutes and resolutions of the Board of Directors
and stockholder of each of Seedco and GSC and of GSC as general partner of Green
Seed showing the authorization and approval by the Companies of the execution
and delivery of this Agreement and of the agreements and instruments provided
for herein and of the performance of the obligations of each of Seedco and GSC
under this Agreement and such other instruments and agreements, certified
27
<PAGE>
as of a recent date by the Secretary or another officer of each of Seedco and
GSC and the general partner of Green Seed; and
(5) a certificate of incumbency identifying the officers and directors
of each of Seedco and GSC, and the general and limited partners of Greed Seed
immediately before Closing.
(i) The Buyer shall have received a written opinion of counsel for Rosoff
and the Companies dated as of the Closing Date, in the form of Exhibit 13(i)
hereto.
(j) [Intentionally Left Blank]
(k) [Intentionally Left Blank]
(l) The Buyer shall have received a deed containing covenants of special
warranty and further assurances, effective to vest in the Buyer good and
marketable title to the Assets, as herein provided.
(m) [Intentionally Left Blank]
(n) [Intentionally Left Blank]
(o) The Buyer shall have completed its due diligence review to its
satisfaction.
(p) The Buyer shall have received from each of Alan Rosoff and Jane Rosoff
the Employment and Non-Competition Agreement in the form of Exhibit 3(d)(1)
attached hereto.
(q) The Buyer shall have received from Rosoff and Morrison, or their
successors in interest, a release of the Nations Bank Security Deed or any other
liens or encumbrances except the permitted liens or encumbrances listed on
Schedule 1; or the title company's willingness on the sale of the Assets, to
insure Buyer's title to the Assets without exception for the Nations Bank
Security Deed or any other liens or encumbrances except the permitted liens or
encumbrances listed on Schedule 1.
(r) The Buyer shall have received from Morrison or his successor in
interest, a general release, with respect to all obligations or indemnification
(including all taxes and other payments) due from the Companies pursuant to an
agreement dated May 28, 1997 among the Companies, Rosoff and Morrison and any
other agreements or arrangements.
(s) The Buyer shall have received from Seller the 1% limited partnership
interest in Green Seed owned by Morrison or his successor in interest, free and
clear of all liens, mortgages, charges, liabilities, claims, security interests
or encumbrances of every type whatsoever.
SECTION 15. CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATIONS. The
------------------------------------------------
obligations of the Seller under this Agreement are subject to the following
conditions:
28
<PAGE>
(a) There shall not have been any material breach of the representations,
warranties, covenants and agreements of the Buyer contained in this Agreement.
(b) The Buyer shall have performed and complied in all material respects
with all agreements and conditions required by this Agreement to be performed or
complied with by it. All documents and instruments required in connection with
this Agreement shall be reasonably satisfactory in form and substance to the
Seller.
(c) The Sellers shall have received a certificate dated the Closing Date
and signed by the Buyer contained in this Agreement, certifying that the
conditions specified in Paragraphs 15(a) and 15(b) above have been fulfilled.
To the extent that any representations, warranties, covenants and agreements of
the Buyer contained in this Agreement are not true at the Closing as if made at
the Closing, such changes shall be described in such certificate.
(d) The Seller shall have received a written opinion of Snow Becker Krauss
P.C., counsel for the Buyer, dated as of the Closing Date, in the form of
Exhibit 15(d) hereto.
(e) The Seller shall have received originals or certified copies,
reasonably satisfactory in form and substance to the Seller, of the following
corporate documents of the Buyer:
(1) a certificate of existence certifying as of a recent date that the
Buyer is in good standing under the laws of its state of incorporation;
(2) copies of the minutes and resolutions of the Board of Directors of
the Buyer showing the authorization and approval by such Board of the execution
and delivery by the Buyer to the Seller of this Agreement and the agreements and
instruments provided for herein and of the performance of the obligations of the
Buyer under this Agreement and such other instruments and agreements, certified
as of a recent date by the Secretary or another officer of the Buyer; and
(3) a certificate of incumbency identifying the officers and directors
of the Buyer immediately before Closing.
(f) Rosoff and Jane Rosoff shall have received from Buyer the Employment
and Non-Competition Agreements in the form of Exhibit 3(d)(1) and the funds
provided for therein.
(g) Rosoff and Jane Rosoff shall have received from Buyer the Non-Qualified
Stock Option Agreements in the form of Exhibit 3(d)(2).
SECTION 16. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER AND THE BUYER.
---------------------------------------------------------------
The obligations of the Seller and the Buyer to complete this transaction shall
be subject to the fulfillment at or prior to the Closing Date of the following
conditions:
29
<PAGE>
(a) Due Diligence. The Seller and the Buyer shall each have been afforded
-------------
the opportunity to complete their due diligence and conduct a review of the
business and prospects of the other, and shall be reasonably satisfied as to
such business and prospects.
(b) No Injunctions. No action or proceeding shall have been instituted or
--------------
threatened by any public authority or private person prior to the Closing before
any court or administrative body to restrain, enjoin or otherwise prevent the
consummation of this transaction or to recover any damages or obtain other
relief as a result of this transaction.
(c) Consents. Any consent to the transaction considered by the Seller or
--------
the Buyer to be necessary or advisable under any agreement or contract, the
withholding of which might have, in the judgment of the Seller or the Buyer, a
material adverse effect on the financial condition of the other party, shall
have been obtained.
(d) Corporate Proceedings. All corporate and other proceedings in
---------------------
connection with the transactions contemplated by this Agreement, and all
documents and instruments incident thereto, shall be reasonably satisfactory in
substance and form to the Seller with respect to the Securities and Rosoff with
respect to the Assets, and the Buyer and their counsel, and the Seller, Rosoff
and the Buyer and their counsel shall have received all certificates, documents
and instruments, or copies thereof, certified if requested, as may be reasonably
requested.
(e) Status of Schedules and Exhibits as of Signing Date. The parties each
---------------------------------------------------
acknowledge and agree that as of the date this Agreement is executed and
delivered, none of the Schedules to this Agreement have been delivered,
reviewed, or approved by the parties hereto. In addition to and without in any
way limiting, any other express and implied condition precedent to the
obligations of any of the parties under this Agreement, the obligations of each
of the parties under this Agreement are hereby made subject to and contingent
upon delivery and approval of the Schedules as hereinafter provided. Rosoff
shall prepare and deliver to Buyer the Schedules by December 12, 1997, and Buyer
shall, within 10 business days of receipt of the Schedules, either approve and
accept the Schedules or provide written notice to Rossoff that it does not
approve and accept the Schedules and identify the deficiencies underlying its
refusal to approve and accept the Schedules. Following receipt of such notice
from Buyer, Seller shall have 10 business days to cure (as defined in Section
17(d)) such deficiencies.
(f) Updated Schedules. Seller will update by amendments or supplements in
-----------------
writing each of the Schedules delivered pursuant to Section 4(dd) and any other
written disclosure to reflect any change in the information set forth in said
Schedules or other disclosure. Seller hereby represents and warrants that such
Schedules and such written disclosures, as so amended or supplemented, shall be
true, correct and complete in all material respects as of the date or dates
thereof.
SECTION 17. TERMINATION. This Agreement may be terminated at any time prior
-----------
to the Closing Date:
30
<PAGE>
(a) By mutual written consent of the Seller and the Buyer properly
authorized by their respective Boards of Directors.
(b) By either the Buyer or the Seller if this transaction is not completed
by January 31, 1998, unless extended by mutual consent.
(c) By the Buyer if since September 30, 1997, there has been a material
adverse change in the condition (financial or otherwise), business, assets,
liabilities or earnings of the Companies. A loss for the period October 1, 1997
through December 31, 1997 comparable to the prior fiscal year or budget would
not be considered a "material adverse change" for purposes of this subsection.
(d) By the Buyer if the Schedules have not been delivered by December 12,
1997 and/or if the Schedules, as delivered, reveal a state of facts that was
previously not disclosed to Buyer in writing or differs materially from facts
previously disclosed in writing to the Buyer, and which presents a material
adverse change in the condition (financial or otherwise) of the Companies,
provided, however, that Seller shall have 10 business days from the date of
notice of a state of facts giving rise to the right to terminate hereunder to
cure such state of facts. For purposes of this Section 17(d) and Section 16(e),
"cure" shall mean make whole or correct in its entirety the material adverse
change in the condition of the Company disclosed to Buyer, at Buyer's election
by (i) an adjustment to the Purchase Price or (ii) indemnification, in each case
the amount of which shall be the amount necessary to effect the cure.
SECTION 18. THE BUYER'S OBLIGATIONS AT CLOSING.
----------------------------------
At the Closing, in addition to fulfilling the conditions to closing
appearing in this Agreement, the Buyer shall deliver to Rosoff the Securities
Purchase Price and the Asset Purchase Price as more specifically described in
Section 3 hereof, together with all other documents and agreements required to
be delivered by it hereunder.
SECTION 19. THE SELLER'S OBLIGATIONS AT CLOSING. At the Closing, in addition
-----------------------------------
to fulfilling the conditions to closing appearing herein, the Seller shall
deliver to the Buyer:
(a) stock certificate(s) representing the Stock properly endorsed, or with
stock powers executed in blank, and with any and all transfer, stamp or similar
taxes upon the transfer of the shares to the Buyer paid in full by the Seller
and a certificate from each general and limited partner of Green Seed
transferring such partner's interest in Green Seed to the Buyer, free and clear
of all liens, claims and encumbrances except the pledge to secure the loans to
the Companies by Heller;
(b) all original minute books, stock books, stock transfer ledger, canceled
stock certificates, corporate seals and financial records and statements of the
Companies; and
(c) all deeds containing covenants and warranties as set forth in Section
14(1).
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<PAGE>
SECTION 20. SUBSEQUENT EVENTS.
-----------------
The Buyer will receive, at its own expense, audited financial statements,
of the Companies ("Audited Financial Statements"), certified by KPMG Peat
Marwick LLP, independent certified public accountants, for all periods required
of the Buyer under the rules and regulations of the Securities and Exchange
Commission (the "Rules"). The Companies and the Seller hereby agree to provide
the Buyer and their accountants with full and free access to the books and
records of the Companies and to cooperate fully with all such representatives of
the Buyer so that the Audited Financial Statements may be prepared on a timely
basis.
SECTION 21. PARTIES IN INTEREST. This Agreement shall be binding upon and
-------------------
shall inure to the benefit of the parties and their successors and assigns.
Nothing herein expressed or implied is intended or shall be construed to confer
upon or to give any person, firm, or entity other than the parties hereto any
rights or remedies under or by reason hereof.
SECTION 22. ENTIRE AGREEMENT. This Agreement, including the Schedules and
----------------
Exhibits hereto, contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof and shall not be
modified or affected by any offer, proposal, statement or representation, oral
or written, made by or for any party in connection with the negotiation of the
terms hereof. All references herein to this Agreement shall specifically
include, incorporate and refer to the Schedules and Exhibits attached hereto,
which are hereby made a part hereof. There are no representations, promises,
warranties, covenants, undertakings or assurances (express or implied) other
than those expressly set forth or provided for herein and in the other documents
referred to herein. This Agreement may not be modified or amended orally, but
only by a writing signed by all the parties hereto.
SECTION 23. GOVERNING LAW. This Agreement and all rights and obligations
-------------
hereunder shall be governed by, and construed in accordance with, the laws of
the State of Nevada, applicable to agreements made and to be performed wholly
within said State, without regard to the conflicts of laws principles of such
State.
SECTION 24. EXPENSES. The Buyer and Rosoff shall each pay their own expenses
--------
incidental to the preparation of this Agreement, the carrying out of the
provisions of this Agreement and the consummation of the transactions
contemplated hereby. ABT shall pay any prepayment or termination fee with
respect to the loans to the Companies by Heller.
SECTION 25. ARBITRATION. Notwithstanding any other provision in this
-----------
Agreement to the contrary, controversies between Buyer and Seller shall be
resolved, to the extent possible, by informal meetings and discussions in good
faith between the parties. Such meetings and discussions shall, upon
commencement, occur daily and for at least two hours each day.
If a dispute between the parties cannot be resolved by informal meetings
and discussions the dispute shall be settled by binding arbitration, and a
corresponding judgment may be entered in a court of competent jurisdiction.
Arbitration of any dispute may be initiated by one party by sending
32
<PAGE>
a written demand for arbitration to the other party. This demand will specify
the matter in dispute and request the appointment of an arbitration panel which
demand will preclude court action. The arbitration panel will consist of one
arbitrator named by Buyer, one arbitrator named by Seller and a third arbitrator
named by the two arbitrators so chosen. The arbitration hearing will be
conducted in accordance with the procedural rules set forth in the commercial
arbitration rules of the American Arbitration Association. The situs of the
arbitration will be Las Vegas, Nevada if initiated by Buyer and Baltimore,
Maryland if initiated by Seller. The arbitrators shall not be empowered to award
punitive or exemplary damages to either party.
SECTION 26. SEVERABILITY. If any part of this Agreement is held to be
------------
unenforceable or invalid under, or in conflict with, the applicable law of any
jurisdiction, the unenforceable, invalid or conflicting part shall, to the
extent permitted by applicable law, be narrowed or replaced, to the extent
possible, with a judicial construction in such jurisdiction that effectuates the
intent of the parties regarding this Agreement and such unenforceable, invalid
or conflicting part. To the extent permitted by applicable law, notwithstanding
the unenforceability, invalidity or conflict with applicable law of any part of
this Agreement, the remaining parts shall be valid, enforceable and binding on
the parties.
SECTION 27. NOTICES.
-------
(a) All notices, requests, consents and demands by the parties hereunder
shall be delivered by hand, by recognized national overnight courier or by
deposit in the United States mail, postage prepaid, by registered or certified
mail, return receipt requested, addressed to the party to be notified at the
addresses set forth below:
(1) if to Rosoff to:
Alan Rosoff
99 River Oaks Circle
Baltimore, MD 21208
33
<PAGE>
with a copy to:
Gordon, Feinblatt, Rothman, Hoffberger & Hollander
The Garrett Building
233 East Redwood Street
Baltimore, MD 21202
Attn: Edward E. Obstler, Esq.
Telecopier No.:(410) 576-4246
(2) if to the Buyer to:
AgriBioTech, Inc.
2700 Sunset Road, Suite C-25
Las Vegas, Nevada 89120
Attention: Johnny R. Thomas, President
Telecopier No.: (702) 798-8808
with a copy to:
Snow Becker Krauss P.C.
605 Third Avenue
New York, New York 10158
Attention: Elliot H. Lutzker, Esq.
Telecopier No.: (212) 949-7052
(b) Notices given by mail shall be deemed effective on the earlier of the
date shown on the proof of receipt of such mail or, unless the recipient proves
that the notice was received later or not received, three (3) days after the
date of mailing thereof. Other notices shall be deemed given on the date of
receipt. Any party hereto may change the address specified herein by written
notice to the other parties hereto.
SECTION 28. NON-WAIVERS. Neither any failure nor any delay on the part of
-----------
any party to this Agreement in exercising any right, power or privilege
hereunder shall operate as a waiver of any rights of such party, unless such
waiver is made by a writing executed by the party and delivered to the other
parties hereto; nor shall a single or partial exercise of any right preclude any
other or further exercise of any other right, power or privilege accorded to any
party hereto.
SECTION 29. ASSIGNMENT. This Agreement may not be assigned by any party
----------
without the prior consent of the other parties.
Section 30. Disclosure. From and after the date of this Agreement until the
----------
Closing or the termination of this Agreement, neither the Seller nor the
Companies will, directly or indirectly, (i) solicit or encourage inquiries or
proposals with respect to, or furnish any information relating to, or
participate in any negotiations or discussions concerning the sale of the Stock
or the sale of all or a substantial portion of the assets of the Companies with
anyone other than the Buyer; or (ii) discuss
34
<PAGE>
the sale of the Securities with anyone other than the Buyer and other officers,
directors and shareholders of the Companies and the Seller's advisors and (iii)
unless otherwise required by law or the requirements of any applicable stock
exchange, make any public announcement without prior approval of the language of
such announcement by the Buyer.
SECTION 31. MISCELLANEOUS.
-------------
(a) Further Assurances. Each of the parties hereto shall use its best
------------------
efforts to take or cause to be taken, and to cooperate with the other party
hereto to the extent necessary with respect to, all action, and to do, or cause
to be done, consistent with applicable law, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, the Seller and
Buyer shall cooperate with and provide assistance to the other in connection
with the preparation and filing of all federal, state, local and foreign income
tax returns that relate to the Companies and relate to pre-Closing periods but
that are not required to be filed until after the Closing, and shall also
cooperate with and provide assistance to the other or the Companies with respect
to any audit of any tax returns filed prior to the Closing; provided, however,
that the Buyer and the Companies hereby covenant and agree that the Companies
will not file any amended income tax returns without first notifying the Seller.
(b) Headings. The headings contained herein are for reference purposes
--------
only and shall not affect the meaning or interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed and delivered in multiple
------------
counterpart copies, each of which shall be an original and all of which shall
constitute one and the same agreement.
35
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first above written.
-------------------------------------
Alan Rosoff
SEED CORPORATION OF AMERICA
By:
-----------------------------------
GREEN SCA CORP.
By:
-----------------------------------
GREEN SEED COMPANY LIMITED PARTNERSHIP
By:
-----------------------------------
AGRIBIOTECH, INC.
By:
-----------------------------------
Kathleen L. Gillespie
Vice President
36
<PAGE>
Exhibit 2.2
OMITTED SCHEDULES AND EXHIBITS
TO THE PURCHASE AGREEMENT DATED DECEMBER 9, 1997
BY AND AMONG ALAN ROSOFF, GREEN SCA CORP.,
SEED CORPORATION OF AMERICA, GREEN SEED COMPANY
LIMITED PARTNERSHIP AND AGRIBIOTECH, INC.
<TABLE>
<S> <C> <C>
Schedule 1 Warehouse and Real Property; Permitted Encumbrances
Schedule 3(a)(3) Promissory Notes of the Companies
Schedule 4(b)(1) Third party consents
Schedule 4(b)(2) Seedco and GSC Subsidiaries etc.
Schedule 4(b)(3) Qualification
Schedule 4(c)(1) Pending Litigation
Schedule 4(c)(2) Complaints from Customers, etc.
Schedule 4(c)(3) Claims related to Products and Services
Schedule 4(c)(4) Returns
Schedule 4(d) Encumbrances
Schedule 4(e) Trademarks, Tradenames, etc.
Schedule 4(f) Patents
Schedule 4(g) Financial Reports
Schedule 4(h) Material Changes
Schedule 4(j) Inventory
Schedule 4(k) Real and Personal Property
Schedule 4(l) Material Contracts
Schedule 4(m) Violations or Restrictions
Schedule 4(n) Court Orders and Decrees
Schedule 4(o) Books and Records
Schedule 4(p) Pension, Profit Sharing Plans, etc.
Schedule 4(q) Insurance
Schedule 4(r) Rights of Third parties
Schedule 4(s) Powers of Attorney
Schedule 4(u) Vendors and Customers
Schedule 4(w) Compensation Plans and Arrangements
Schedule 4(x) Governmental and Administrative Licenses, Permits, etc.
Schedule 4(z) Compliance with Laws
Schedule 4(aa) Personal Guarantees by Seller
Schedule 4(bb) Vacation and Other Employee Benefits
Schedule 5(a)(11) Hazardous Material and Nuisance
Exhibit 3(c) Escrow Agreement
Exhibit 3(d)(1) Employment and Non-Competition Agreement
Exhibit 3(d)(2) Non-Qualified Stock Option Agreement
Exhibit 13(i) Opinion of Counsel to Seller
Exhibit 15(d) Opinion of counsel to Buyer
</TABLE>
