ASSET PURCHASE AGREEMENT
by and between
LOEWENSTEIN, INC.
and
STUART-CLARK, INC., STUART-CLARK OFFICE FURNITURE DIVISION,
INC.,
AND STUART-CLARK MANUFACTURING, INC.
June___, 2000
TABLE OF CONTENTS
ARTICLE 1
NATURE OF TRANSACTION
Section 1.1 Purchase and Sale 1
Section 1.2 Description of Assets 1
Section 1.3 Retained Assets 3
Section 1.4 Transfer of Assets 3
Section 1.5 Purchase Price 4
Section 1.6 Payment of Purchase Price 4
Section 1.7 Assumption of
Certain Liabilities 4
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF SELLER
Section 2.1 Corporate Status of Seller 5
(a) Domicile, Powers and Qualification 5
(b) Authorization and Binding Effect 5
Section 2.2 No Breach 6
Section 2.3 Seller's Books
and Records; Financial Statements 6
Section 2.4 Title to Property 6
Section 2.5 Leased Property 7
Section 2.6 Contracts and Agreements 7
Section 2.7 Insurance 8
Section 2.8 Tax Matters 8
Section 2.9 No Finders 8
Section 2.10 Special Taxes
and Assessments 8
Section 2.11 Compliance
With Law; Permits 8
Section 2.12 ERISA Matters 9
Section 2.13 Actions Since
December 31, 1999 9
Section 2.14 Location and Condition
of Inventory and Equipment 10
Section 2.15 Accounts Receivable 10
Section 2.16 Patents and Trademarks 10
Section 2.17 Customers and Suppliers 10
Section 2.18 Litigation 11
Section 2.19 Product Warranties 11
Section 2.20 Government Approval 11
Section 2.21 Entities Owned by Seller 11
Section 2.22 All Material Assets Conveyed 11
Section 2.23 Adverse Conditions 11
Section 2.24 Exhibits 11
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Section 3.1 Corporate Status of Buyer 12
Section 3.2 No Consents Required 12
Section 3.3 No Finders 12
ARTICLE 4
COVENANTS OF SELLER
Section 4.1 Recent of Inspection;
Access to Information; Reliance 12
Section 4.2 Operation of Business 12
Section 4.3 Preservation of Business 13
Section 4.4 Operation and Notification 13
Section 4.5 Consents 13
Section 4.6 Continuation of Employees 13
Section 4.7 Change of Names 13
Section 4.8 Cooperation 13
Section 4.9 Further Assurances 13
Section 4.10 Tax Matters 14
Section 4.11 Adverse Actions 14
Section 4.12 Negotiations 14
ARTICLE 5
COVENANTS OF BUYER
Section 5.1 Payment of
Liabilities Assumed 15
Section 5.2 Confidentiality 15
Section 5.3 Further Assurances 15
Section 5.4 Tax Matters 15
Section 5.5 Operation and Notification 15
ARTICLE 6
THE CLOSING
Section 6.1 Time and Place of Closing 16
Section 6.2 Closing Date 16
Section 6.3 Conditions to the Obligations
of Buyer 16
(a) Correctness of Representations
and Warranties Compliance 16
(b) Financing 16
(c) Approvals and Consents 16
(d) Due Diligence; Exhibits 16
(e) Employment Agreements 17
(f) Non-Competition and
(g) Non-Solicitation Agreement 17
(h) Purchase of WinsLoew
(i) Furniture, Inc. Equity 17
(h) Satisfaction of
(i) Buyer and Its Counsel 17
(i) No Material Adverse Change 17
(j) Consent of Landlord to Remove Assets 17
Section 6.4 Conditions of
Obligations of Seller 17
(a) Correctness of Representations
and Warranties; Compliance 18
(b) No Proceedings 18
(c) Approvals and Consents 18
Section 6.5 Deliveries By Seller 18
Section 6.6 Deliveries By Buyer 19
ARTICLE 7
INDEMNIFICATION
Section 7.1 Indemnification by Seller 19
Section 7.2 Notice to Seller 20
Section 7.3 Indemnification By Buyer 20
Section 7.4 Notice to Buyer 20
Section 7.5 Deadline for
Indemnification Claims 20
ARTICLE 8
TERMINATION
Section 8.1 Termination of This Agreement 21
Section 8.2 Notice of Termination 21
Section 8.3 Effect of Termination 21
ARTICLE 9
MISCELLANEOUS
Section 9. 1 Expenses 21
Section 9.2 Risk of Loss 21
Section 9.3 Transfer Taxes 22
Section 9.4 Notices 22
Section 9.5 Table of Contents; Captions 23
Section 9.6 Incorporation of
Appendices and Exhibits 23
Section 9.7 Entire Agreement
and Amendment 23
Section 9.8 Severability 23
Section 9.9 Successors and Assigns 23
Section 9.10 Governing Law 23
Section 9.11 Counterparts 24
Section 9.12 Attorneys Fees 24
Section 9.13 Public Announcements 24
Section 9.14 Survival 24
Section 9.15 Bulk Sales Laws 24
Section 9.16 Arbitration 24
INDEX TO EXHIBITS
Exhibit 1.2(a) Assigned Leases
Exhibit 1.2(b) Equipment
Exhibit 1.2(e) Bank Accounts
Exhibit 1.2(g) Assigned Contracts
Exhibit 1.2(j) Intellectual Property
Exhibit 1.2(q) Vehicles
Exhibit 1.6 Escrow Agreement
Exhibit 1.7 Other Assumed Liabilities
Exhibit 1.8(a) March 31, 2000 Minimum Net Asset Value
Calculation Sheet
Exhibit 2.3(a) Reviewed Financial Statements
Exhibit 2.3(b) Interim Financial Statements
Exhibit 2.4 Permitted Encumbrances
Exhibit 2.5 Assignment Restrictions - Leases
Exhibit 2.6 Assignment Restrictions - Contracts
Exhibit 2.11 Compliance With Laws
Exhibit 2.13 Actions Since December 31, 1999
Exhibit 2.15 Accounts Receivable
Exhibit 2.17 Customers and Suppliers
Exhibit 2.18 Litigation
Exhibit 2.19 Product Warranties
Exhibit 2.21 Entities Owned By Seller
Exhibit 4.10 Purchase Price Allocation Sheet
Exhibit 6.3(a) Seller's Certificate
Exhibit 6.3(e) Employment Agreements
Exhibit 6.3(f) Non-Competition and Non-
Solicitation Agreement
Exhibit 6.3(g) Shareholders Agreement
Exhibit 6.3(h) Seller's Counsel's Opinion Letter
Exhibit 6.4(a) Buyer's Certificate
ASSET PURCHASE
AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is
made as of the ___ day of June, 2000, by and among, STUART-
CLARK, INC., STUART-CLARK OFFICE FURNITURE DIVISION, INC.,
AND STUART-CLARK MANUFACTURING, INC., North Carolina
corporations (individually and collectively "Seller", and
the three corporations shall jointly and severally share
all rights and liabilities under this Agreement), and
LOEWENSTEIN, INC. ("Buyer").
WITNESSETH:
WHEREAS, Seller is engaged in the business (the
"Business") of manufacturing and selling lodging and office
furniture at its principal place of business in Davidson
County, North Carolina; and
WHEREAS, Seller desires to transfer all or
substantially all of its assets used or useful in the
Business to Buyer in exchange for cash and the assumption
by Buyer of certain specified liabilities of Seller as
herein provided; and
WHEREAS, Buyer desires to acquire such assets and
assume such liabilities of Seller, all as hereinafter more
fully set forth;
NOW, THEREFORE, in consideration of the premises and
of the mutual covenants and agreements hereinafter set
forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
the parties hereto mutually covenant and agree as follows:
ARTICLE 1
NATURE OF TRANSACTION
Section 1.1 Purchase and Sale. On the basis of the
representations and warranties and subject to the terms and
conditions set forth in this Agreement, Seller agrees to
sell, convey, transfer, assign, set over and deliver to
Buyer, and Buyer agrees to buy from Seller, the Assets (as
hereinafter defined) for the purchase price specified in
Section 1.5 hereof and payable in accordance with Section
1.6 hereof.
Section 1.2 Description of Assets. On the terms and
subject to the conditions herein expressed, Seller agrees
to sell, convey, transfer, assign, set over and deliver to
Buyer on the Closing Date (as hereinafter defined), and
Buyer agrees to buy from Seller, the following assets of
Seller, whether owned jointly or severally (hereinafter
collectively referred to as the "Assets", all free and
clear of any and all liens, claims, charges, encumbrances
or rights of consent of any nature whatsoever (other than
Permitted Encumbrances, as hereinafter defined):
(a) all interests of Seller under the leases and
other rental agreements listed or described on Exhibit
1.2(a) hereto (collectively, the "Assigned Leases" (the
real and personal property subject to the Assigned Leases
is hereinafter referred to collectively as the "Leased
Property");
(b) all machinery, equipment, furniture, vehicles,
tools, handling equipment, and other fixed assets and
tangible personal property used or usable in the Business,
including, without limitation, those items listed or
described on Exhibit 1.2(b) hereto (collectively, the
"Equipment");
(c) all inventories of raw materials, work-in-process
and finished goods, packaging, printed materials and
supplies, in possession of Seller or suppliers inventories
(including, without limitation, parts, maintenance and
operating supplies, and spare parts for machinery and
equipment), wherever located (the "Inventory"), as of the
Closing Date;
(d) all right, title and interest of Seller as of the
Closing Date in purchase orders for goods and services;
(e) all cash, cash equivalents and bank accounts of
Seller as of the Closing Date, which bank accounts are
listed on Exhibit 1.2(e) hereto;
(f) all right, title, and interest of the Seller in
its trade accounts receivable, intercompany receivables,
and all other receivables, credits, and refunds as of the
Closing Date;
(g) all right, title and interest of Seller under the
contracts and other agreements listed or described on
Exhibit 1.2(g) hereto (collectively, the "Assigned
Contracts");
(h) all right, title and interest of Seller in and to
all certificates of occupancy and other licenses, permits
and authorizations of governmental or quasi governmental
agencies and authorities or private parties relating to the
distribution, use, operation or enjoyment of the Assets;
(i) all claims of Seller against third parties
relating to the Assets or the Business;
(j) all right, title and interest of Seller in and to
all patents, copyrights, trademarks, servicemarks, trade
names, trade styles, brand names and other intangible
property used in connection with the Business, and all
designs, plans, specifications, renderings, drawings,
models, prototypes, methods and processes relating to the
products and services offered by the Seller including,
without limitation, those items listed or described on
Exhibit 1.2(j) hereto;
(k) all right, title and interest of Seller in and to
all bonds or deposits made by Seller or its predecessors
(or its agents) with any governmental agency or authority
or with any utility company or third party relating to the
distribution, use, operation or enjoyment of the Assets;
(l) all right, title and interest of Seller in and to
all prepaid rentals and other prepaid expenses arising from
payments made by Seller in connection with the Business on
or prior to the Closing Date for goods and services,
including, without limitation, insurance premium refunds or
returns;
(m) (i) originals or, at Seller's option, true and
correct copies of all personnel records of those employees
of Seller to be employed by Buyer following the Closing,
marketing studies, customer lists, customer files, customer
purchase orders, customer materials, art works, supplier
files, dealer files, sales agent and manufacturers'
representatives files, credit files, credit data,
appraisals, valuations, and consulting studies and all
other books, records, reports, ledgers, files, documents,
data, information, correspondence and lists relating to the
Business, the Assets or the Assumed Liabilities (as
hereinafter defined) (all of the foregoing being
hereinafter collectively referred to as the "Records"), and
(ii) all printed and other advertising, sales and
promotional materials, catalogues, stationery, office
supplies, product descriptions, printing plates, forms and
other similar supplies and materials, and all computer
programs, computer software, computer manuals, flowcharts,
printouts, data files, program documentation and all other
related materials relating to the Business, the Assets or
the Assumed Liabilities and all copies of each hereof;
(n) any insurance proceeds paid or payable to Seller
on or after the date hereof pursuant to any contract of
insurance as a result of damage to or loss of any of the
assets owned or operated by Seller that are to be, or in
the absence of loss would otherwise have been, sold to
Buyer hereunder (other than the amounts paid or payable to
Seller as reimbursement for amounts actually paid by Seller
for repair or replacement of such assets), or as a result
of damage or loss with respect to or interruption of the
operation of the Business, the purpose of this provision
being to assure that Buyer receives the insurance proceeds
otherwise payable to Seller intended to make Seller whole
on account of any damage or loss to the assets being,
purchased by Buyer occurring on or prior to the Closing
Date, or damage or loss to or interruption of the
operations of the Business subsequent to the Closing Date;
(o) all goodwill associated with the Business; and,
(p) any and all other assets relating to the
Business, tangible and intangible, except the Retained
Assets (as hereinafter defined).
(q)the vehicles described in Exhibit 1.2(q) which Buyer
agrees to sell to certain individual owners or employees of
the Seller at the amounts stipulated in Exhibit 1.2(q).
Section 1.3 Retained Assets. On and after the
Closing Date, Seller shall retain the following assets
(collectively, the "Retained Assets"):
(a) the documents relating to Seller's
organization, existence and qualification to do business;
and
(b) the life insurance policies and the underlying
cash value of such policies.
Section 1.4 Transfer of Assets. The Assets shall be
conveyed to Buyer on and as of the Closing Date, free and
clear of all liens, claims, charges, encumbrances or rights
of consent of any nature whatsoever (other than Permitted
Encumbrances, as hereinafter defined).
Section 1.5 Purchase Price. The total potential
consideration to be paid by Buyer for the Assets (the
"Purchase Price") shall be Three Million Eight Hundred
Thousand United States Dollars (U.S. $3,800,000) to be paid
by Buyer as provided in Section 1.6 hereof. In addition,
the Assumed Liabilities (as hereinafter defined) shall be
assumed by Buyer pursuant to Section 1.7.
Section 1.6 Payment of Purchase Price. Two Million
Eight Hundred and Fifty Thousand Dollars ($2,850,000)) of
the Purchase Price shall be paid on and as of the Closing
Date by the delivery by Buyer to Seller in United States
Dollars by means of a wire transfer of immediately
available funds, or in such other manner or form as may be
mutually satisfactory. Two Hundred and Fifty Thousand
Dollars ($250,000)) (the "Escrow Funds") shall be paid on
and as of the Closing Date by the delivery by Buyer to
Suntrust Bank, Atlanta office, as escrow agent (the "Escrow
Agent") pursuant to the terms of the "Escrow Agreement,"
attached as Exhibit 1.6. As provided in the Escrow
Agreement, the Escrow Funds shall be held in an account
(the "Escrow Account") to provide indemnification to the
Buyer as provided in Section 7.1 hereof. The Buyer shall
also pay to Seller a contingent deferred payment of up to
Seven Hundred Thousand Dollars ($700,000) to be paid as
follows: For all sales from June 1, 2000 to December 31,
2000, if the Buyer's sale of Seller's products produces up
to $5,000,000 net sales on the top line and------ 32%
standard gross margin, then Buyer shall pay, on or before
January 31, 2001, to Seller $140,000 per $1,000,000 of
gross sales up to a maximum of $700,000.
Section 1.7 Assumption of Certain Liabilities. On the
Closing Date, Buyer shall not be obligated to assume, and
shall not assume, any of the liabilities or obligations of
Seller (absolute, accrued, contingent or otherwise),
whether existing prior to or as of the Closing Date, or
asserted after the Closing Date and relating to events that
occurred before the Closing Date, or otherwise, except
Buyer shall assume and agrees to pay, perform and
discharge, in accordance with their respective terms, the
following (collectively referred to herein as the "Assumed
Liabilities"):
(a) all obligations of Seller arising in the
ordinary course of business under the Assigned Leases or
the Assigned Contracts to the extent transferable;
(b) all trade accounts payable, customer deposits
and accrued expenses, but not any accrued income or sales
taxes or employee related expenses including, but not
limited to, withholding taxes, 401(k) withholdings or
matching contributions, company payroll taxes, vacation
accruals, bonuses, miscellaneous withholdings, or accrued
salaries and wages, associated with the Assets of Seller as
of the Closing Date arising in the ordinary course of
business;
(c) the obligations of Seller as of the Closing
Date to fill orders received by Seller in the ordinary
course of business (i) for the manufacture and sale of
lodging and office furniture, (ii) for the sale of parts,
or (iii) for service and maintenance of said furniture or
parts; and
(d) the other obligations and liabilities of Seller
that are listed on Exhibit 1.7 hereto.
Nothing in this Agreement shall be deemed to create
any obligation on the part of Buyer to continue the
employment of any individual or to create any contract
right or entitlement with respect thereto. Buyer shall have
no responsibility for any amounts, obligations,
liabilities, compensation, severance pay or benefits of any
kind or nature due to Seller's employees through the
Closing Date or arising as a result of the termination by
Seller of any such employees in connection with the
transactions contemplated by this Agreement, including,
without limitation, any benefits that may arise under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, and any and all such liabilities and obligations
shall be the sole responsibility of Seller. Seller shall
prepare and file all payroll reports and Forms W-2 for its
employees through the Closing Date.
Unless expressly stated in this Section 1.7 or in
Exhibit 1.7, nothing in this Agreement shall be deemed to
create any obligation on behalf of the Buyer with regard to
any liabilities arising out of the operation of the
Seller's Business or the ownership of the Assets prior to
or through the Closing Date of any nature whatsoever,
whether known or unknown, direct or indirect, continigent
or accrued, matured or unmatured including, but not limited
to, claims for violation of any statutes, laws,
regulations, rules, ordinances or orders of any authority,
whether federal, state or local, tax claims or tax liens,
labor relation claims, OSHA related claims, EEOC related
claims, employee benefit claims, ERISA related claims,
employee claims, environmental, health and safety claims,
EPCRA related claims, product warranty, product return and
product liability claims for products sold prior to or
through the Closing Date, medical, dental and workers'
compensation claims, computer software license claims,
claims for personal injury, claims for injury to property,
claims for breach of contract, claims for compensatory
damages, claims for punitive damages, creditor claims,
claims by lenders, claims on accounts, claims for unpaid
debts, any and all claims by Seller's shareholders, and any
and all litigation arising out of the foregoing claims.
All liabilities of the Seller not herein defined as
Assumed Liabilities shall hereinafter be referred to as the
"Retained Liabilities."
Section 1.8 Minimum Net Asset Value Adjustment to
Purchase Price. The Purchase Price shall be subject to an
adjustment after Closing pursuant to the following
provisions:
(a) As promptly as practicable, but in no event
later than 45 business days after the Closing Date, the
Buyer shall prepare and deliver to the Seller a balance
sheet of the Seller's Business as of the open of business
on the Closing Date prepared in accordance with GAAP with
no Change in Accounting Principles from those utilized in
preparing the Interim Financial Statements including with
respect to the nature of accounting in determining the
level of reserves or in determining the level of accruals
(the "Closing Balance Sheet"), together with a schedule
setting forth in reasonable detail the Buyer's good faith
calculation of the Minimum Net Asset Value at Closing. The
"Minimum Net Asset Value" means the total value of the
Assets acquired as of the Closing Date minus the total
amount of the Assumed Liabilities as of the Closing Date,
and minus the total amount of certain of Seller's Retained
Liabilities as of the Closing Date as set forth on Exhibit
1.8(a), as determined by reference to the amounts set forth
on the face (but not the notes) of the Closing Balance
Sheet. The method of calculation of the Minimum Net Asset
Value should be consistent with the method of calculation
for the minimum net asset value as of March 31, 2000 found
on Exhibit 1.8(a).
(b) The Buyer and its accountants shall permit the
Seller and its representatives to have full access to the
books, records and other documents (including work papers)
pertaining to or used in connection with preparation of the
Closing Balance Sheet and the Buyer's calculation of the
Minimum Net Asset Value at Closing and provide the Seller
and its representatives with copies thereof (as reasonably
requested by the Seller). If the Seller disagrees with the
Buyer's calculation of the Minimum Net Asset Value as set
forth on the schedule attached to the Closing Balance Sheet
or with any other aspect of the Closing Balance Sheet for
any purpose under this Agreement, the Seller shall notify
the Buyer in writing of such disagreement (the "Objection
Notice") (such Objection Notice setting forth the basis for
such disagreement in reasonable detail) within 15 business
days after the Buyer's delivery of the Closing Balance
Sheet to the Sellers. The Buyer and the Seller thereafter
shall negotiate in good faith to resolve any such
disagreements with respect to the computation of the
Minimum Net Asset Value or any other aspect of the Closing
Balance Sheet. If the Buyer and the Seller are unable to
resolve any such disagreements within 15 business days
after the delivery of the Objection Notice to the Buyer by
the Seller, the Buyer and the Seller shall submit the
dispute to a so-called "big four" public accounting firm
(or a successor thereto) jointly selected by the Buyer and
the Seller (the "Accountant") for resolution; and at the
time of such submission, the Buyer and the Seller shall
each disclose to the other any professional relationships
by and between the Seller and the Buyer and its
shareholders, directors, and officers, and any such "big
four" accounting firms during the three (3) year period
immediately prior to Closing. If the Buyer and the Seller
are unable to agree upon the Accountant, the Accountant
shall be a so-called "big four" accounting firm (or a
successor thereto) selected by lot (after the Buyer and the
Seller each exclude one such accounting firm). The Buyer
and the Seller agree to release the Accountant from any and
all claims or liabilities for any services performed by the
Accountant in resolving any dispute concerning the
computation of Minimum Net Asset Value.
(c) The Buyer and the Seller shall use their
respective best efforts to cause the Accountant to resolve
all disagreements with respect to the Minimum Net Asset
Value or otherwise with respect to the Closing Balance
Sheet as soon as practicable, but in any event shall direct
the Accountant to render a determination within 30 days of
its retention. The Accountant shall consider only those
items and amounts in the Closing Balance Sheet which are
identified in the Objection Notice as being items which the
Buyer and the Seller are unable to resolve. In resolving
any disputed item, the Accountant may not assign a value to
any item greater than the greatest value for such item
claimed by either party or less than the smallest value for
such item claimed by either party. The Accountant's
determination shall be based solely on presentations by the
Buyer and the Seller (i.e., not on independent review), and
on the definition of Minimum Net Asset Value included
herein. The determination of the Accountant shall be
conclusive and binding upon the Seller and the Buyer and
constitute the Minimum Net Asset Value for purposes of this
Agreement. The Accountant's expenses shall be borne
equally by the Buyer and Seller.
(d) Upon the final determination of the Minimum Net
Asset Value, if the Minimum Net Asset Value is less than
$1,150,000.00, the Seller shall pay the amount of any such
deficiency to the Buyer no later than three business days
after the final determination of the Minimum Net Asset
Value, by wire transfer of immediately available funds to
an account designated by the Buyer in writing; and any
payment made pursuant to this provision shall be treated by
the Buyer and the Seller as an adjustment to the Purchase
Price.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF SELLER
Seller represents and warrants to and covenants with
Buyer and its successors and assigns as follows:
Section 2.1 Corporate Status of Seller.
(a) Domicile, Powers and Qualification. Seller is a
corporation duly organized, legally and validly existing,
and in good standing under the laws of North Carolina with
full power and authority (corporate, governmental or
otherwise) necessary to own its properties and conduct its
business as it now exists or is being conducted and to
enter into this Agreement and the transactions contemplated
hereby.
(b) Authorization and Binding Effect. All requisite
corporate action required to be taken by Seller or its
shareholders to authorize the execution and delivery of
this Agreement and the transactions contemplated hereby
have been taken, and this Agreement constitutes a valid and
binding agreement enforceable against Seller in accordance
with the terms and subject to the conditions hereof.
Section 2.2 No Breach. Neither the execution and
delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with or
result in the breach of any provision of the Articles of
Incorporation or Bylaws of Seller, (ii) except as
disclosed on any Exhibit to this Agreement, constitute a
default (or an event which, with notice or lapse of time or
both, would constitute a default) in the terms, conditions
or provisions of any note, bond, mortgage, indenture,
license, agreement or other material instrument or
obligation to which Seller is a party or by which Seller or
the Assets is bound, or (iii) violate any judgment, order,
injunction, decree, statute, rule or regulation applicable
to Seller or the Assets.
Section 2.3 Seller's Books and Records; Financial
Statements. The books and records of Seller have been
regularly kept and maintained on the accounting basis used
by Seller for income tax purposes, and such books and
records fairly and accurately reflect, in all material
respects, the transactions of Seller to which either it is
a party or by which its properties are bound; Seller's
books and records are maintained at its principal place of
business in Davidson County, North Carolina, and no portion
of Seller's records, systems, controls, data or information
is recorded, stored, maintained, operated or otherwise
wholly or partly held by a means (electronic, mechanical,
computerized or otherwise) not under the exclusive
ownership and control (including all means of access) of
Seller.
Seller has furnished Buyer with copies of reviewed,
but not audited, financial statements of Seller through the
period ended December 31, 1999 (the "Reviewed Financial
Statements"). The Reviewed Financial Statements are
attached hereto as Exhibit 2.3(a). Since December 31, 1999,
there has not been any material adverse change in the
financial condition, business, properties or results of
operations of Seller. The Seller has also furnished Buyer
with copies of internally generated monthly financial
statements (the "Interim Financial Statements) attached as
Exhibit 2.3(b). The Interim Financial Statements are in
accordance with the books and records of Seller, present
fairly the financial condition of Seller at March 31, 2000,
and the results of operations for the three month period
covered thereby, and have been prepared in accordance with
generally accepted accounting principles applied on a basis
consistent with that of the Reviewed Financial Statements.
At March 31, 2000, Seller had no liabilities which are
required under generally accepted accounting principles to
be shown or provided for and are not fully shown or
provided for in the Interim Financial Statements .
Section 2.4 Title to Property. Except as set forth on
Exhibit 2.4 hereto, Seller is the owner, or with respect to
the Leased Property, the lessee, of the Assets being
transferred hereunder, and has good and marketable title to
all such Assets (other than the Leased Property) and good
and defensible title to the Leased Property, free and clear
of any mortgage, security interest, easement, covenant,
lien, charge or other encumbrance, other than the Permitted
Encumbrances (as hereinafter defined). Upon Seller's
transfer and sale of such Assets to Buyer pursuant to this
Agreement, Buyer will have good and marketable title to all
of such Assets (other than the Leased Property) and good
and defensible title to the Leased Property, free and clear
of any mortgage, security interest, easement, covenant,
lien, charge or other encumbrance, except as set forth on
Exhibit 2.4 hereto (all of which exceptions shall
hereinafter be collectively referred to as the "Permitted
Encumbrances"). Except as disclosed in Exhibit 1.2(a)
hereto, Seller does not hold or use any of the Assets
pursuant to any lease, conditional sales contract,
franchise or license.
Section 2.5 Leased Property. Exhibit 1.2(a) hereto
sets forth as of the date hereof a list of all leases under
which Seller is lessee of any of the Assets, and Seller has
furnished to Buyer complete and correct copies of all such,
leases (including all amendments thereto). All such leases
are valid, binding and in full force and effect against
Seller, are valid, binding and in full force and effect
against the respective lessors and, except as set forth on
Exhibit 1.2(a), have not been amended or modified. Seller
is not in default, and no notice of alleged default has
been received by Seller, under any such leases, no lessor
is in default or alleged to be in default thereunder, and
there exists no condition or event which, after notice or
lapse of time or both, would constitute a default by
Seller. Seller warrants that it shall make all payments
required to be paid and perform in all material respects
all acts which are required to be performed by Seller
pursuant to such leases prior to Closing. Seller does not
know or have reason to know of any cancellations or
terminations, or threats to cancel, terminate or not renew
or extend any such lease by any other party thereto. Except
as set forth in Exhibit 2.5 hereto, the rights of Seller
under all such leases are assignable by Seller on the same
terms, conditions and rentals as now apply to Seller,
without the consent of any other party.
Section 2.6 Contracts and Agreements. Exhibit 1.2(g)
hereto sets forth a list of all
contracts or other agreements (other than those listed on
Exhibit 1.2(a)) relating to the Business
to which Seller is a party or by which Seller or any of the
Assets is or may become bound, and
Seller has furnished to Buyer complete and correct copies
of all such contracts or other agreements (including all
amendments thereto). All contracts or other a agreements
referred to in Exhibit 1.2(g) hereto are valid, binding and
in full force and effect against Seller, are valid, binding
and in full force and effect against the other parties
thereto, and, except as set forth on Exhibit 1.2(g) hereto,
have not been amended or modified. Seller is not in
default, and no notice of alleged default has been received
by Seller, under any of such contracts or other agreements,
to the best of Seller's knowledge no other party thereto is
in default or alleged to be in default thereunder, and
there exists no condition or event which, after notice or
lapse of time or both, would constitute a default by any
party thereto. Seller warrants that it shall make all
payments required to be paid and perform all acts which are
required to be performed by Seller pursuant to such
contracts or other agreements prior to Closing. Except as
set forth on Exhibit 2.6 hereto, all such contracts or
other agreements are assignable by Seller on the same terms
and conditions as now apply to Seller without the consent
of any other party thereto. As used in this Agreement,
"contracts or other agreements" shall mean all contracts,
agreements, purchase orders, franchises, commitments,
leases, licenses, mortgages, notes, bonds, indentures,
loans or other instruments.
Section 2.7 Insurance. Seller's insurance policies
are in full force and effect and will remain in effect
through the Closing Date.
Section 2.8 Tax Matters. For all periods prior to the
date of this Agreement and through the Closing Date, to the
best of Seller's knowledge, all Federal, state, and local
taxes due from or with respect to Seller have been timely
and fully paid.
Section 2.9 No Finders. No finder or any agent,
broker or other person acting pursuant to Seller's
authority is entitled to make any claim against Buyer for
any commission or finder's fee in connection with the
transactions contemplated by this Agreement, except that
Buyer shall be responsible for the payment of any broker or
finder's fee charged by Mann, Armistead & Epperson.
Section 2.10 Special Taxes and Assessments. No
special taxes or assessments have been levied against the
Assets and not paid, and to the best of Seller's knowledge,
none are pending, contemplated or threatened.
Section 2.11 Compliance With Law; Permits. Set forth
on Exhibit 2.11 hereto are all judicial, administrative or
regulatory judgments, decrees, orders or injunctions issued
specifically for the purpose of governing, directing or
restriction the conduct of the Business by Seller. Seller
is not now, nor at the Closing will be, in violation of (i)
any applicable judgment, order, injunction, award or decree
relating to the Business or (ii) any federal, state or
local law, statute, ordinance, code, rule or regulation or
any other requirement of any governmental body, court or
arbitrator (collectively "Laws") which is applicable to the
Business (including, without limitation, the Federal
Occupational Safety and Health Act of 1970, as amended, and
the rules and regulations issued thereunder, and Laws
relating to matters of environmental protection or
hazardous waste disposal). Seller has remedied or caused to
be remedied all violations of any such Laws that had been
brought to the attention of Seller pursuant to a claim by
any governmental agency, inspector, employee or other
person except those violations being contested in good
faith by Seller. There are not now pending, nor have there
been pending at any time any such contests by Seller,
regardless of the outcome or disposition thereof, except as
may be described and set forth on Exhibit 2.11 hereto. To
the extent that any such contests are now pending, Seller
warrants that an adverse determination thereof shall not
have an adverse material effect on the Assets or the
conduct of the Business. Except as set forth on Exhibit
2.11 hereto, all permits, licenses, certificates of
occupancy, orders or approvals of any federal, state, local
or foreign governmental or regulatory body that are
material to or necessary in the conduct of the Business as
presently operated by Seller have been obtained by Seller
and are in full force and effect, except to the extent that
the failure to obtain such permits, licenses, certificates
of occupancy, orders or approvals would not have a material
adverse effect on the Assets or the Business. Except as set
forth on Exhibit 2.11 hereto, Seller has furnished to Buyer
true and complete copies of all permits, licenses,
certificates of occupancy, orders or approvals of any
federal, state, local or foreign governmental or regulatory
body (collectively, the "Permits") referred to therein and,
except as set forth on Exhibit 2.11 hereto, to the best of
Seller's knowledge, (a) all such Permits are in full force
and effect, with no violations having been reported in
respect of any such Permit, and (b) no proceeding is
pending or threatened to revoke limit, cancel or not extend
or renew any such Permit. Except as set forth on Exhibit
2.11 hereto, all of the Permits are assignable by Seller on
the same terms and conditions as now apply to Seller,
without the consent of any other party. Seller warrants
that it shall make all payments and perform all acts which
may be required to be paid or performed pursuant to all
Laws and Permits applicable to the Business prior to
Closing. There has been no adverse material change in the
qualifications, limitations or restrictions imposed by such
Laws and Permits on the operation of the Business since.
Section 2.12 ERISA Matters. None of the Assets are
subject to a lien pursuant to Section 302(f) or Section
4068 of ERISA and no event has occurred which could subject
any of the Assets to any such lien. Neither Seller nor any
affiliate of Seller has engaged in any transaction or is a
successor to or parent corporation of any party which has
engaged in any transaction which could subject it to
liability under Section 4069 of ERISA.
Section 2.13 Actions Since December 31, 1999. Except
as set forth in Exhibit 2.13 hereto, since December 31,
1999 Seller has not: (i) incurred or agreed to incur any
obligations or liabilities, except obligations or
liabilities in the ordinary course of business or under
contracts, leases, documents and transactions listed in the
Exhibits hereto, or incurred or agreed to incur any long
term debt; (ii) satisfied and discharged any lien, or paid
any obligation or liabilities other than liabilities
included in the Reviewed Financial Statements, liabilities
incurred since December 31, 1999 in the ordinary course of
business, and obligations and liabilities under contracts,
leases, transactions or documents listed or described in
the Exhibits hereto; (iii) declared or paid any
distribution or dividend to Seller's shareholders or
effected any repurchase or other acquisition of Seller's
capital stock; (iv) mortgaged, pledged or subjected to lien
or other encumbrance any of its property (except in the
ordinary course of business and except possible liens for
current state and local property taxes not in default); (v)
sold or transferred any of its assets or canceled any debts
owing to it or claims owned by it, except in each case in
the ordinary course of business; (vi) sold, assigned or
granted rights under any patent, trade name, trademark,
servicemark, or copyright, or any application therefor;
(vii) experienced any labor dispute materially and
adversely affecting the business or financial condition of
Seller; (viii) waived any rights of material value; (ix)
experienced any change in the financial condition or the
operations or business of Seller, other than changes in the
ordinary course of business, none of which has been
materially adverse; (x) reduced or permitted the reduction
of inventories of furniture, parts, and supplies other than
seasonal reductions consistent with past practice and in
the ordinary course of business; (xi) suffered any damage
or destruction, whether or not covered by insurance,
materially and adversely affecting the properties or
business of Seller; or (xii) become aware of any other
event or condition of any character pertaining to and
materially and adversely affecting, or which may materially
and adversely effect, the business or the financial
condition of Seller.
Section 2.14 Location and Condition of Inventory and
Equipment. All of the Inventory and the Equipment is
located at Seller's principal place of business in Davidson
County, North Carolina, and is in good operating condition
and in a good state of maintenance and repair. The
inventory shown in the Interim Financial Statements, all
current inventories of Seller, and all inventories
hereafter acquired by Seller through the Closing Date and
as reflected on the Closing Balance Sheet, consist or will
consist generally of items of a quality and quantity usable
or saleable in the ordinary and regular course of the
Business; the value of obsolete items and of items below
standard quality has been written down to realizable market
value; and the values at which inventory is carried on the
Interim Financial Statements reflect the normal inventory
valuation policy of Seller of stating inventory at the
lower of cost or market, all in accordance with generally
accepted accounting principles. There will be no material
changes in the Seller's inventories between the date hereof
and the Closing Date, except those changes resulting from
purchases in the ordinary and regular course of business
and from sales or leasing of inventory in the ordinary and
regular course of business consistent with prior years.
Seller guarantees Buyer that the inventory is usable in
Seller's current product line. Any of Seller's inventory
which has not been used upon the expiration of six months
from the Closing Date will be disposed of or made
available to Seller at Seller's request. To the extent
that Buyer does not receive the normal gross margin on such
inventory within six months from the Closing Date, the
Buyer shall send written notice to the Seller indicating
the specific amount of the actual gross margin received by
Buyer and the specific amount of deficiency from the normal
grossmargin. The Seller shall pay the Buyer the amount of
this deficiency within 30 days of the receipt of any
notice pursuant to this Section 2.14.
Section 2.15 Accounts Receivable. Except as provided
in Exhibit 2.15 hereto, the accounts receivable of Seller
as of the date hereof are, and the accounts receivable of
Seller on the Closing Date will be, properly accrued on the
books of Seller, valid obligations of the respective makers
thereof and not subject to any valid offset or
counterclaims, freely assignable by Seller to Buyer, and
fully collectible in the ordinary course of business.
Seller guarantees that neither CIT nor any other factoring
company will have a lien on said accounts receivable or
any of the other Assets after the Closing Date. Any liens
on accounts receivable currently held by factoring
companies must be paid in full, satisfied and released on
or before the Closing Date.
With respect to accounts receivable reflected on the
Closing Balance Sheet (the "Accounts Receivable"), the
Seller guarantees the collectibility of the Accounts
Receivable in full. The Buyer agrees to use efforts
consistent with the Seller's past custom and practice to
cause the Buyer to collect all Accounts Receivable, but
shall not be obligated to resort to litigation. Any sums
payable by account debtors on account of any accounts
receivable of such account debtors shall be credited to the
earliest invoices of the Seller to such account debtors,
unless specifically directed otherwise by the account
debtor. Subject to the foregoing, to the extent any
Accounts Receivable are unpaid for a period of 90 days
after the Closing, the Buyer shall send written notice to
the Seller indicating the specific account debtors, the
amount of the unpaid invoices representing Accounts
Receivable to each such account debtor and the total of all
such unpaid Accounts Receivable. The Seller shall pay the
Buyer the amount of all such unpaid Accounts Receivable
minus any remaining reserve for bad debts included in the
Closing Balance Sheet within 30 days of the receipt of any
notice pursuant to this Section 2.15 on the condition that
the Buyer shall simultaneously assign such unpaid Accounts
Receivable (the "Assigned Receivables") to the Seller.
Such assignment shall include the right to sue as an
assignee of the Buyer. In the event that after such
assignment the Buyer receives any payment on the Assigned
Receivables, the Buyer shall promptly remit such amount to
the Seller. Thereafter, the Seller, as owner of the
Assigned Receivables, may take any action the Seller deems
necessary to collect the Assigned Receivables and any
collections shall be the property of the Seller. The Buyer
agrees to cooperate with the Seller in any action the
Seller wishes to take to collect the Assigned Receivables
consistent with the Seller's past custom and practice. In
the event the Buyer does not want to assign any Accounts
Receivable to the Seller because it does not want the
Seller to initiate collection action thereon, the Seller
shall be relieved of any liability under this Section 2.15
with respect to such Accounts Receivable.
In the event any Accounts Receivable are subject to a
valid dispute by the account debtor and the Buyer wishes to
grant a discount on any said Accounts Receivable, the Buyer
shall send written notice or notices to the Seller
indicating the specific account debtors and the amount of
the dispute or discount. The Buyer shall consult with the
Seller with respect to the resolution of any dispute and/or
the amount of any discount and shall not settle any such
dispute or grant any discount without the consent of the
Seller, which consent shall not be unreasonably withheld.
Where consent is given to the settlement of any dispute
and/or the granting of any discount, the Seller shall pay
the Buyer the difference between the original amount of the
Accounts Receivable and the amount actually received by the
Buyer after settlement or discount, with payment to be made
within 30 days after the settlement or granting of the
discount. Where consent is withheld by the Seller, the
Buyer may either assign the Accounts Receivable, or settle
the dispute or grant the discount at its own expense and
the Seller shall be relieved of any liability under this
Section 2.15 with respect to such Accounts Receivable.
Section 2.16 Patents and Trademarks. Seller owns (or
possesses adequate and enforceable licenses or other rights
to use without payment of royalties) all patents, trade
secrets, copyrights, trade names, trademarks, servicemarks,
inventions and processes necessary for the conduct of, or
use in, the Business; and Seller has not received any
notice of conflict with the asserted rights of others or
any other notice of any dispute with respect to any license
under which Seller is a licensor or licensee or any notice
asserting that any of the products or processes infringes
upon patents claimed by others or is in conflict with any
asserted rights of others. Seller has not granted to any
other party any right to use any patent, trade secret,
copyright, trade name, trademark, servicemark, or
invention. Exhibit 1.2(j) hereto sets forth all U.S. and
foreign patents and trademark registrations (and
applications therefor), and license agreements under which
Seller is licensor or licensee relating to inventions,
trade secrets, knowhow, trade names and trademarks. Such
registrations, applications and agreements have been
furnished to Buyer.
Section 2.17 Customers and Suppliers. Listed on
Exhibit 2.17 hereto are the ten (10) largest customers (by
dollar volume) of Seller in terms of sales for 1999,
showing the approximate total sales to each such customer
for such year. Also listed on Exhibit 2.17 hereto are the
ten (10) largest suppliers (by dollar volume) of Seller in
terms of purchases for 1999, showing the approximate total
purchases from each such supplier for such year. Except as
set forth on Exhibit 2.17 hereto, there has not been any
material adverse change in the business relationship of
Seller with any customer or supplier listed on Exhibit 2.17
hereto. Except as set forth on Exhibit 2.17 hereto, all
sales of products and goods by Seller during 1999 and
between December 31, 1999 and the date hereof were made to
independent third parties not affiliated with Seller and
arose in the ordinary and usual course of business.
Section 2.18 Litigation. Set forth on Exhibit 2.18
hereto is a description of each and every pending or, to
Seller's knowledge, threatened judicial or administrative
action, suit, litigation, proceeding, or arbitration or
governmental investigation (collectively, the "Actions")
against or involving Seller which individually or together
with any other(s), will have a material adverse effect on
the Assets or the Business following the Closing. Except as
described on Exhibit 2.18 hereto, Seller does not currently
have pending, and is not considering, any litigation or the
pursuit of any rights or remedies that may be available
against any third parties relating to the Business or the
Assets. Seller is not in default with respect to any order,
writ, injunction or decree of any Federal, state, local or
foreign court, department, agency or instrumentality.
Section 2.19 Product Warranties. There are no written
warranties or, to Seller's best knowledge, oral warranties
given by Seller applicable to any products sold by Seller
except as described on Exhibit 2.19 hereto. Except as set
forth in Exhibit 2.19 hereto, there is no Action pending,
or to the knowledge of Seller, threatened against Seller
under any warranty, express or implied, with respect to
Seller.
Section 2.20 Government Approval. No consent,
approval, waiver, order or authorization of, or
registration, declaration or filing with, any governmental
authority is required in connection with the execution and
delivery of this Agreement by Seller or the consummation by
Seller of the transactions contemplated hereby.
Section 2.21 Entities Owned By Seller. Seller does
not, directly or indirectly, now own, possess, control or
have any direct or indirect ownership or equitable interest
in, or participation with, any corporation, limited
liability company, partnership, trust, or other business
association, except as described on Exhibit 2.21 hereto.
Section 2.22 All Material Assets Conveyed. The Assets
constitute all of the material properties, contracts,
licenses, privilege and other assets owned or used by
Seller in connection with the operation of the Business.
Section 2.23 Adverse Conditions. Except to the extent
disclosed in the Exhibits hereto, there are no presently
existing conditions with respect to the Assets or the
Business which are known to Seller and which may reasonably
be expected to have a material adverse effect on the Assets
or the Business or the prospects or conduct thereof by
Buyer after the Closing Date.
Section 2.24 Exhibits. No representation or warranty
by Seller in this Agreement, the Exhibits attached hereto,
or any statement, certificate or schedule furnished or to
be furnished to Buyer pursuant hereto, or in connection
with the transactions contemplated hereby, contains or will
contain any untrue statement of material fact, or omits or
will omit to state a material fact necessary to make the
statements contained therein not misleading.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to and covenants with
Seller as follows:
Section 3.1 Corporate Status of Buyer.
(a) Domicile, Powers and Qualification. Buyer is a
corporation duly organized, legally and validly existing,
and in good standing under the laws of the State of Florida
with full power and authority (corporate, governmental or
otherwise) necessary to own its properties and conduct its
business as it now exists or is being conducted and to
enter into this Agreement and the transactions contemplated
hereby.
(b) Authorization and Binding Effect. All requisite
corporate action required to be taken by Buyer or its
shareholders to authorize the execution and delivery of
this Agreement and the transactions contemplated hereby
have been taken, and this Agreement constitutes a valid and
binding agreement enforceable against Buyer in accordance
with the terms and subject to the conditions hereof.
Section 3.2 No Consents Required. Buyer has obtained
all required consents, if any, of third persons necessary
to consummate the transactions contemplated hereby or to
make this Agreement and all other documents executed in
connection herewith binding, upon Buyer.
Section 3.3 No Finders. No finder or any agent,
broker or other person acting pursuant to Buyer's authority
is entitled to make any claim against Seller for any
commission or finder's fee in connection with the
transactions contemplated by this Agreement.
ARTICLE 4
COVENANTS OF SELLER
Seller covenants and agrees with Buyer as follows:
Section 4.1 Right of Inspection; Access to
Information; Reliance. At all times during reasonable
business hours between the date hereof and the Closing
Date, Seller shall make available for examination and
inspection by Buyer and its agents any facilities,
inventories, other properties, books of account and
records, market studies and reports, consultant studies and
reports, manufacturers representatives agreements, customer
lists, appraisals, valuation studies and reports,
contracts, documents, and other materials or information in
the possession or control of Seller to the extent that any
of such materials or information relates to the Business,
the Assets or the Assumed Liabilities.
Section 4.2 Operation of Business. Seller shall
conduct the Business diligently and substantially in the
same manner as heretofore.
Section 4.3 Preservation of Business. Seller will use
its best effort to preserve intact the business
organization of Seller, to have available for employment by
Buyer on and after the Closing Date (without making any
commitment on Buyer's behalf) such of Seller's employees as
Buyer shall deem necessary for the continuation of the
Business in an orderly and business like manner, and to
preserve the business relationships of Seller with its
distributors, suppliers, customers, landlords and other
third parties, all to the end that the Business and the
Assets will be unimpaired at and through the time of
Closing.
Section 4.4 Operation and Notification. Between the
date hereof and the Closing Date, Seller will not
deliberately take any action that would cause any
representation or warranty of Seller contained herein to be
untrue or incorrect in any material respect. Between the
date hereof and the Closing Date, Seller shall give prompt
notice to Buyer of any fact, occurrence or matter with
respect to which Seller obtains knowledge which would cause
any of the representations, warranties or covenants of
Seller set forth herein to be untrue or incorrect in any
material respect.
Section 4.5 Consents. In each case where the
properties, franchises, agreements, leases, contracts or
other rights or commitments of Seller are not transferable
or assignable to Buyer, or cannot be purchased or assumed
by Buyer pursuant to this Agreement, without the consent of
another party, Seller shall use its best efforts to obtain,
prior to the Closing Date, all such consents of such other
party to the transfer to Buyer pursuant to this Agreement
of those properties, franchises, agreements, leases,
contracts, rights and commitments.
Section 4.6 Continuation of Employees. Seller shall
use reasonable efforts to help ensure the employment by
Buyer of the four employees of the Business which Buyer
wishes to employ.
Section 4.7 Change of Names. On, or within ten (30)
days after, the Closing Date, if requested by Buyer, Seller
will amend its articles of incorporation, so as to change
its name and will thereafter cooperate with Buyer in making
its present name available to Buyer in each state in which
Seller transacts, or has transacted, business. Buyer
acknowledges that Seller may continue indefinitely its
corporate existence.
Section 4.8 Cooperation. Between the date hereof and
the Closing Date, Seller shall cooperate with Buyer in any
dealings with third parties that relate to the Business or
the transactions contemplated hereby or in the fulfillment
of the conditions precedent to the obligations of the
parties hereunder.
Section 4.9 Further Assurances. Upon the reasonable
request of Buyer at any time and from time to time after
the Closing Date, Seller will forthwith execute and deliver
such further instruments of assignment, transfer,
conveyance, endorsement, direction or authorization and do
all things necessary or proper, as Buyer or its counsel may
reasonably request, in order to vest, perfect or confirm,
record or otherwise, the right, title and interest of
Buyer, its successors and assigns, in and to the Assets and
the assignment to, and assumption by Buyer of the Assigned
Leases, Assigned Contracts, and Permits, which are to be
assigned to, and assumed by, Buyer pursuant to Section 1.7
hereof, or otherwise to consummate and finalize the
transactions contemplated herein, including, without
limitation, executing and delivering such other documents
as may be reasonably calculated to effectuate the
intentions of the parties entering into the transactions
contemplated by this Agreement.
Section 4.10 Tax Matters. Buyer and Seller will each
complete and file with the Internal Revenue Service (in the
manner required by Section 1060 of the Code and the
regulations promulgated thereunder) an "Asset Acquisition
Statement" on IRS Form 8594 covering the transactions
contemplated by this Agreement in a manner consistent with
this Agreement. The Purchase Price for the Assets shall be
allocated pursuant to Exhibit 4.10, the "Purchase Price
Allocation Sheet." In addition, neither Buyer nor Seller
will, without the consent of the other, take a position for
tax purposes inconsistent with such Asset Acquisition
Statement in a claim for refund or otherwise.
Section 4.11 Adverse Actions. Seller will not directly or
indirectly take any of the actions which it warranted in
Section 2.13 that it had not taken during the period
between December 31, 1999 and the date hereof. Seller shall
not declare or pay any distribution or other dividend to
its shareholders between the date hereof and the Closing
Date; provided, however, that Seller, on or prior to the
Closing Date, may pay any declared but unpaid distributions
or dividends listed in Exhibit 2.13 hereof, and may declare
and pay distributions and dividends for the period between
the date hereof and the Closing Date determined in
accordance with generally accepted accounting principles
applied on a basis consistent with that Seller's
applications in prior years. Between the date hereof and
the Closing Date, Seller will not operate the Business
other than in the ordinary course consistent with past
practices unless otherwise directed by Buyer, including,
without limitation, past practices with regard to inventory
buildup and depletion and pricing, and will not make any
change in any method of accounting, including, without
limitation, any change in the depreciation or amortization
policies or rates theretofore adopted by Seller.
Section 4.12 Negotiations. Unless this Agreement is
terminated pursuant to the provisions herein, Seller, its
officers, directors, employees and other agents shall not,
directly or indirectly, (i) take any action to solicit or
initiate any "Acquisition Proposal" (as hereinafter
defined), or (ii) continue, initiate or engage in
discussions or negotiations with, or disclose any non-
public information, other than in the ordinary course of
business, relating to the Company or afford access to any
other person or entity except the Buyer and their
respective representatives. The term "Acquisition
Proposal" as used herein means any offer, proposal or
indication of interest in (a) the acquisition of the
company or substantially all of its assets, (b) a merger,
consolidation or other business combination in which the
Company does to survive, or (c) the acquisition of any of
the capital stock of the Company. The Seller shall
promptly advise Buyer of any individual or entity
expressing an interest in acquiring an interest in the
Assets of Seller or the capital stock of Seller.
ARTICLE 5
COVENANTS OF BUYER
Buyer covenants and agrees with Seller as follows:
Section 5.1 Payment of Liabilities Assumed. Buyer shall pay
and discharge all the Assumed Liabilities, when and as the
same shall become due and payable or dischargeable.
Section 5.2 Confidentiality. Buyer acknowledges and agrees
that all information regarding Seller, the Assets, the
Business or the Assumed Liabilities, whether written or
oral, made available to Buyer is confidential information
(the "Confidential Information"). In exchange for Seller
making the Confidential Information available to Buyer,
Buyer agrees that neither it nor its employees,
contractors, officers, directors, lawyers, accountants or
agents will disclose any of the Confidential Information to
any other person other than prospective financing sources
and their employees and representatives, without Seller's
prior written consent. If this Agreement is terminated,
Buyer shall return to Seller the written Confidential
Information and all copies thereof and the provisions of
this Section 5.2 shall remain fully applicable to Buyer.
Section 5.3 Further Assurances. Subsequent to the date
hereof, Buyer shall forthwith, at its expense, render such
assistance as Seller may reasonably require to orderly
consummate and finalize the transactions contemplated
herein, including, without limitation, executing and
delivering such other documents as may be reasonably
calculated to effectuate the intentions of the parties in
entering into the transactions contemplated by this
Agreement.
Section 5.4 Tax Matters. Buyer and Seller will each
complete and file with the Internal Revenue Service (in the
manner required by Section 1060 of the Code and the
regulations promulgated thereunder) an "Asset Acquisition
Statement" on IRS Form 8594 covering the transactions
contemplated by this Agreement in a manner consistent with
this Agreement. The Purchase Price for the Assets shall be
allocated pursuant to Exhibit 4.10, the "Purchase Price
Allocation Sheet." In addition, neither Buyer nor Seller
will, without the consent of the other, take a position for
tax purposes inconsistent. with such Asset Acquisition
Statement in a claim for refund or otherwise.
Section 5.5 Operation and Notification. Between the date
hereof and the Closing Date, Buyer will not deliberately
take any action that would cause any representation or
warranty of Buyer contained herein to be untrue or
incorrect in any material respect. Between the date hereof
and the Closing Date, Buyer shall give prompt notice to
Seller of any facts, occurrence or matter with respect to
which Buyer obtains knowledge which would cause any of the
representations, warranties or covenants of Buyer set forth
herein to be untrue or incorrect in any material respect.
ARTICLE 6
THE CLOSING
Section 6.1 Time and Place of Closing. The "Closing" under
this Agreement shall take place at the offices of Spain &
Gillon, L.L.C. in Birmingham, Alabama, on June ___, 2000,
or at such other location as the parties may agree, or by
the execution and delivery of the closing documents by a
courier agreed to by the parties.
Section 6.2 Closing Date. For purposes of this Agreement,
the term "Closing Date" shall mean the date on which the
Closing shall occur. The consummation of all of the
transactions at the Closing shall be deemed to have
occurred as of the close of business on the Closing Date,
or at such different time and place upon which the parties
may subsequently agree in writing.
Section 6.3 Conditions to the Obligations of Buyer. The
obligations of Buyer to purchase the Assets and to assume
the Assumed Liabilities shall be subject to the fulfillment
at or prior to the Closing of each of the following
conditions precedent:
(a) Correctness of Representations and Warranties;
Compliance. All representations and warranties of Seller
contained in this Agreement shall be true and correct at
and as of the Closing Date with the same force and effect
as though made at and as of the Closing Date, and Seller
shall have performed and complied with all of the
obligations and conditions with respect to which this
Agreement requires performance or compliance by Seller at
or prior to the time of Closing. Seller will deliver to
Buyer a certificate dated the date of the Closing, as to
the fulfillment of the matters described in this Section
6.3(a).
(b) Financing. Buyer shall have obtained financing to
implement the transactions provided for in this Agreement
and to provide sufficient working capital on such terms and
conditions as are acceptable to Buyer.
(c) Approvals and Consents. All approvals, consents,
waivers, exemptions, and other actions that are necessary
in connection with the consummation of the transactions
contemplated by this Agreement, including, without
limitation, third party consents to the transfer to Buyer
of properties, franchises, agreements, leases, contracts,
rights and commitments that are material to the Business
shall have been duly given, taken, made, transferred or
obtained, as the case may be, shall be in full force and
effect on the Closing Date.
(d) Due Diligence; Exhibits. Buyer shall have received from
Seller all information available to Seller that is
requested by Buyer promptly after the date hereof, and
Buyer, upon review of such matters related to Seller, its
assets, liabilities, financial condition, Business,
prospects or relations with third parties as it shall deem
necessary or appropriate (in which review Seller shall
cooperate), shall not have learned of any fact or matter
that, in the good faith determination of Buyer, causes
Buyer to be dissatisfied in any material respect with the
transactions contemplated by this Agreement.
(e) Employment Agreements. Each of Joe Clark, Shirley
Coltrane, Jeff Hill, shall have entered into five-year
employment agreements with Buyer, and O.K. Hogan shall have
entered into a one-year employment agreement with Buyer,
said employment agreements to be substantially in the form
attached as Exhibit 6.3(e) hereto.
(f) Non-Competition and Non-Solicitation Agreement. Seller
acknowledges that a major component of this Agreement for
Buyer is the exclusive right to manufacture, distribute,
and sell Seller's products in the United States and
throughout the world, the exclusive right to sell Seller's
products and services and similar products and services to
Seller's existing customers, and the exclusive right to use
the services of the four employees signing employment
agreements under Section 6.3(e). On the Closing Date, Joe
Clark and O.K. Hogan shall have entered into a Non-
Competition and Non-Solicitation Agreement which shall be
consistent with said objectives and substantially in the
form of Exhibit 6.3(f) hereto, prohibiting Seller and its
shareholders from participating in a business which
competes in activity with the Buyer for a period of five
(5) years.
(g) Purchase of WinsLoew Furniture, Inc. Equity. Seller
acknowledges that a major component of this Agreement for
Buyer is Joe Clark's purchase of WinsLoew Furniture, Inc.
equity. On the Closing Date, Joe Clark shall have
purchased $250,000 of WinsLoew Furniture, Inc. common
equity at the price of $124.34 per share and Mr. Clark
shall have executed a shareholders and subscription
agreement substantially in the form of Exhibit 6.3(g).
(h) Satisfaction of Buyer and Its Counsel. All proceedings
to be taken in connection with the consummation of the
transactions contemplated by this Agreement, and all
documents incident thereto, shall be satisfactory in form
and substance to Buyer and its counsel, and Buyer and its
counsel shall have received copies of such documents as its
counsel may reasonably request in connection with said
transactions, including without limitation, an opinion from
counsel for Seller, addressed to Buyer and the Buyer's
Lender and dated the Closing Date, in form and substance
satisfactory to counsel for Buyer and in substantially the
form of Exhibit 6.3(h) hereto.
(i) No Material Adverse Change. There shall not have
occurred any material adverse change in the Assets or the
assets, revenues, liabilities (whether absolute, accrued,
contingent or otherwise), or operations of the Business
between the date hereof and the Closing Date, and Seller
shall have delivered to Buyer a certificate dated as of the
Closing Date certifying to such effect.
(j) Consent of Landlord to Remove Assets. The Seller shall
have delivered to Buyer a written consent to remove the
Assets executed by Seller's landlord as to each location
where any of the Assets are located, along with a written
waiver executed by the landlord as to any fixture rights,
encumbrances, or liens relating to the Assets.
Section 6.4 Conditions of Obligations of Seller. The
obligations of Seller to sell, convey, transfer, assign,
set over and deliver the Assets shall be subject to the
fulfillment at or prior to the time of Closing of each of
the following conditions precedent:
(a) Correctness of Representations and Warranties;
Compliance. All representations and warranties of Buyer
contained in this Agreement shall be true and correct at
and as of the time of Closing, with the same force and
effect as though made at and as of the time of Closing and
Buyer shall have performed and complied with all of the
obligations and conditions with which this Agreement
requires performance or compliance by it at or prior to the
time of Closing. Buyer will deliver to Seller its
certificate dated the Closing Date as to the fulfillment of
the conditions set forth in this Section 6.4(a).
(b) No Proceedings. No proceeding or formal investigation
by any governmental authority or agency and no proceeding
by any other person or entity shall have been commenced
with respect to any of the transactions contemplated in
this Agreement or the consummation thereof.
(c) Approvals and Consents. All approvals, consents,
waivers, exemptions, and other actions that are necessary
in connection with the consummation of the transactions
contemplated by this Agreement, shall have been duly given,
taken, made, transferred or obtained, as the case may be,
shall be in full force and effect on the Closing Date, and
copies evidencing the same shall have been supplied to
Seller.
Section 6.5 Deliveries By Seller. At the Closing, Seller
shall execute, acknowledge (if appropriate), and deliver to
Buyer, in addition to all other items specified elsewhere
in this Agreement, the following:
(a) such instruments of sale, conveyance, transfer,
assignment, endorsement, direction or authorization as will
be sufficient or requisite to vest in Buyer, its successors
and assigns, all right, title and interest (which title and
interest shall be good and marketable except for Permitted
Encumbrances) in and to the Assets; and
(b) the various certificates, instruments and documents
referred to in this Agreement, including without
limitation, Section 6.3 of this Agreement.
(c) a copy of the resolution of Seller's Board of Directors
and Shareholders, certified as of the Closing Date by the
secretary or an assistant secretary of Seller, duly
authorizing the execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated hereby; and
(d) a certificate dated not more than thirty (30) days
prior to the Closing Date from the appropriate authority of
the state in which Seller is incorporated as to its
existence and good standing and as to the payment of any
and all franchise and similar taxes due;
(e) possession of the Assets.
Section 6.6 Deliveries By Buyer. At the Closing, Buyer
shall execute, acknowledge (if appropriate), and deliver to
Seller, in addition to all other items specified elsewhere
in this Agreement, the following:
(a) the Purchase Price paid in accordance with Section 1.6
of this Agreement;
(b) the various certificates, instruments, and documents
referred to in this Agreement, including, without
limitation, Section 6.4 of this Agreement;
(c) the documents evidencing the assumption by Buyer of the
Assumed Liabilities.
(d) a copy of the resolution of Buyer's Board of Directors
and Shareholders, certified as of the Closing Date by the
secretary or an assistant secretary of Buyer, duly
authorizing the execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated hereby.
ARTICLE 7
INDEMNIFICATION
Section 7.1 Indemnification by Seller. It is understood and
agreed that Buyer does not assume and shall not be
obligated to pay any liabilities of Seller under the terms
of this Agreement or otherwise, except for the Assumed
Liabilities, and shall not be obligated to perform any
obligations of Seller of any kind or manner except for the
Assumed Liabilities. Seller hereby agrees to indemnify and
hold Buyer, its successors and assigns, harmless from and
against:
(a) Any and all claims, liabilities and obligations of
Seller (other than the Assumed Liabilities) of every kind
and description, contingent or otherwise, known or unknown,
direct or indirect, matured or unmatured, arising from or
related to the operation of the Business prior to or
through the Closing Date hereunder, including, without
limitation, any and all claims, liabilities and obligations
arising or required to be performed under any lease,
contract or agreement not assumed by Buyer hereunder,
claims for violation of any statutes, laws, regulations,
rules, ordinances or orders of any authority, whether
federal, state or local, tax claims or tax liens, labor
relation claims, OSHA related claims, EEOC related claims,
employee benefit claims, ERISA related claims, employee
claims, environmental, health and safety claims, EPCRA
related claims, product warranty, product return and
product liability claims for products sold prior to or
through the Closing Date, medical, dental and workers'
compensation claims, computer software license claims,
claims for personal injury, claims for injury to property,
claims for breach of contract, claims for compensatory
damages, claims for punitive damages, creditor claims,
claims by lenders, claims on accounts, claims for unpaid
debts, and any and all claims by Seller's shareholders.
(b) Any and all damage or loss incurred by Buyer resulting
from Seller's failure to pay federal, state or local taxes;
(c) Any and all damage or loss incurred by Buyer resulting
from any misrepresentation or breach of warranty by Seller
in this Agreement, from any nonfulfillment by Seller of
any agreement, covenant or obligation of Seller contained
in this Agreement, or from any misrepresentation in or
omission from any certificate or other instrument furnished
to Buyer pursuant to this Agreement or in connection with
any of the transactions contemplated hereby; and
(d) Any and all actions, suits, proceedings, damages,
assessments, judgments, costs and expenses, including
reasonable attorneys' fees, incurred by Buyer as a result
of Seller's failure or refusal to compromise or defend any
claim incident to the foregoing provisions.
Any amounts payable by the Seller under this Section 7.1
shall first be satisfied by resort to the Escrow Funds
pursuant to the terms of the Escrow Agreement and only
after the Escrow Funds have been exhausted or distributed
in accordance with the Escrow Agreement shall the Seller be
obligated to make any further payment under this Section
7.1.
Section 7.2 Notice to Seller. If any claim or liability
shall be asserted against Buyer, or Buyer otherwise incurs
any damage or loss, in either case which would give rise to
a claim by Buyer against Seller for indemnification under
the provisions of this Article 7, Buyer shall promptly
notify Seller in writing of the same and Seller shall be
entitled at its own expense to compromise or defend any
such claim.
Section 7.3 Indemnification By Buyer. Buyer hereby agrees
to indemnify and hold Seller, its respective successors and
assigns, harmless from and against:
(a) Any and all claims, liabilities and obligations of
every kind and description, contingent or otherwise,
arising from or relating to the operation of the Business
subsequent to the Closing Date;
(b) Any and all damage or loss incurred by Seller resulting
from Buyer's failure to satisfy the Assumed Liabilities;
(c) Any and all damage or loss incurred by Seller resulting
from any misrepresentation or breach of warranty by Buyer
in this Agreement or any nonfulfillment by Buyer of any
agreement, covenant or obligation of Buyer contained in
this Agreement, or assumed or required to be assumed by
Buyer under this Agreement, or from any misrepresentation
in or omission from any certificate or other instrument
furnished to Seller pursuant to this Agreement or in
connection with any of the transactions contemplated
hereby;
(d) Any and all actions, suits, proceedings, damages,
assessments, judgments, costs and expenses, including
reasonable attorneys' fees, incurred by Seller as the
result of Buyer's failure or refusal to defend or
compromise any claim incident to any of the foregoing
provisions.
Section 7.4 Notice to Buyer. If any claim or liability
shall be asserted against Seller or Seller otherwise incurs
any damage or loss, in either case which would give rise to
a claim by Seller against Buyer for indemnification under
the provisions of this Article 7, Seller shall promptly
notify Buyer of the same and Buyer shall be entitled at its
own expense to compromise or defend any such claim.
Section 7.5 Deadline for Indemnification Claims. All
claims for indemnification under this Article must be made
within two years of the Closing Date . A claim is deemed
to be made on the date when notice is provided as required
under this Article 7.
ARTICLE 8
TERMINATION
Section 8.1 Termination of This Agreement. This Agreement
and the transactions contemplated by it may be terminated:
(a) By the mutual consent of Buyer and Seller at any time;
(b) By Buyer, in the event of a breach by Seller of any of
its representations, warranties or covenants hereunder
prior to the Closing, which is not cured within fifteen
(15) days after written notice from Buyer, and provided
that, at the time of such termination, Buyer shall not be
in breach of any of its representations, warranties or
covenants and, if such termination occurs on the Closing
Date, all other conditions to Seller's obligations
specified in Section 6.4 of this Agreement shall have been
satisfied; or
(c) By Seller, in the event of a breach by Buyer of any of
its representations, warranties or covenants hereunder
prior to the Closing, which is not cured within fifteen
(15) days after written notice from Seller, provided that,
at the time of such termination, Seller shall not be in
breach of any of its representations, warranties or
covenants and, if such termination occurs on the Closing
Date, all other conditions to Buyer's obligations specified
in Section 6.3 of this Agreement shall have been satisfied.
Section 8.2 Notice of Termination. Notice of termination of
this Agreement, as provided for herein, shall be given by
the terminating party to the other party in accordance with
Section 9.4 of this Agreement.
Section 8.3 Effect of Termination. In the event of a
termination of this Agreement pursuant to this Article 8,
this Agreement shall, except as specifically provided
herein, become void and of no further effect, and each
party shall pay the costs and expenses incurred by it in
connection with this Agreement and, except as otherwise
provided herein, no party shall be liable to any other
party for any costs, expenses, damages or loss hereunder,
so long as any such party is not in default or breach of
its obligations hereunder at the time of said termination.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Expenses. All expenses incurred by or on behalf
of Seller on the one hand, or Buyer on the other, in
connection with the negotiation, execution and performance
of this Agreement, including, without limitation, legal and
accounting fees and expenses (collectively, the
"Transaction Expenses"), shall be paid by the party
incurring such Transaction Expenses whether or not the
transactions contemplated in this Agreement are
consummated.
Section 9.2 Risk of Loss. Seller assumes all risk of
destruction, loss or damage to the Assets due to fire or
other casualty up to and including the Closing Date. In the
event of force majeure resulting in the destruction or
substantial impairment of Assets with a book value on the
books and records of Seller of greater than $100,000, Buyer
shall have the option to terminate this Agreement, or
postpone the closing until Seller repairs, replaces or
restores the damaged Assets. In any such event set forth in
this Section 9.2, if Buyer does not terminate this
Agreement, Buyer shall have the benefit by assignment or
otherwise of all insurance proceeds payable by reason of
any such destruction, loss or damage to the Assets, except
to the extent such proceeds are to reimburse Seller for
amounts originally spent by Seller to repair or replace
such Assets.
Section 9.3 Transfer Taxes. Seller shall pay all sales,
use, transfer, and recordation and documentary taxes and
fees arising out of the transfer of the Assets.
Section 9.4 Notices. Any notice to a party hereto pursuant
to this Agreement shall be in writing and shall be given by
delivery in person, by certified or registered mail, by
facsimile or transmittal, or by a nationally recognized
courier, addressed as follows:
If to Seller, then to:
______________________
______________________
______________________
Fax: (___)__________
with a copy to:
______________________
______________________
______________________
Fax: (___)__________
If to Buyer, then to:
Loewenstein, Inc.
Attn: Bobby Tesney
160 Village Street
Birmingham, Alabama 35242
Fax: (205) 408-7028
Any notice hereunder shall be deemed delivered when
placed in the mails so addressed (or to such other address
as any party hereto shall advise the other in writing),
with postage prepaid, or when transmitted and confirmation
of such transmission has been received.
Section 9.5 Table of Contents; Captions. The table of
contents and the captions and other headings contained in
this Agreement as to the contents of particular articles,
sections, paragraphs or other subdivisions contained
herein, or to the Exhibits, are inserted for convenience of
reference only and are in no way to be construed as part of
this Agreement or as limitations on the scope of the
particular articles, sections, paragraphs or other
subdivisions to which they refer and shall not affect the
interpretation or meaning of this Agreement.
Section 9.6 Incorporation of Appendices and Exhibits.
Except as otherwise expressly stated, each reference in
this Agreement to an "Exhibit" refers to an Exhibit to this
Agreement. This Agreement shall be deemed to have
incorporated by reference all of the Exhibits referred to
herein to the same extent as if such Exhibits were fully
set forth herein. Each reference herein to "this Agreement"
or "the Agreement" shall be construed to include each such
Exhibit.
Section 9.7 Entire Agreement and Amendment. This
Agreement and the Exhibits hereto represent the entire
understanding and agreement among, the parties with respect
to the subject matter hereof and shall supersede any prior
agreements and understanding between the parties with
respect to that subject matter. This Agreement may not be
waived, extended, amended, supplemented or modified orally,
but only by a written instrument signed by the party
against whom enforcement of any such waiver, extension,
amendment, supplement or modification is sought.
Section 9.8 Severability. In the event any provision
or portion of this Agreement is deemed to be invalid or
unenforceable, in whole or in part, for any reason, the
remainder thereof shall not be invalidated or rendered
unenforceable or otherwise adversely affected.
Section 9.9 Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of and
be enforceable by and against the parties hereto, and their
respective estates, successors, legal or personal
representatives, heirs, distributees, designees and
assigns. This Agreement cannot be assigned by Seller
without the prior written consent of Buyer. This Agreement
cannot be assigned by Buyer without the prior written
consent of Seller. If Seller consents to Buyer's
assignment of this Agreement to a corporation or other
entity, said assignee shall agree in writing to be bound by
the terms of this Agreement, and upon such assignment,
Buyer shall be remain personally liable for any liability
or obligation arising under or by virtue of this Agreement.
No party other than the parties hereto and their respective
successors and assigns shall have any rights or interests
under this Agreement, nor shall there be any intended or
incidental third party beneficiaries of this Agreement.
Section 9.10 Governing Law. This Agreement shall be
controlled, construed and enforced in accordance with the
laws of the State of Florida, without regard to principles
governing conflicts of law.
Section 9.11 Counterparts. This Agreement may be
executed simultaneously and in any number of counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 9.12 Attorneys Fees. In the event of a
dispute between or among any of the parties hereto arising
out of or related to this Agreement or the interpretation
or enforcement of this Agreement, the prevailing party or
parties shall be entitled to recover reasonable attorney's
fees, costs and expenses from the other party or parties.
Section 9.13 Public Announcements. No public
announcements or press releases of the terms of this
Agreement shall be made prior to the Closing Date. After
the Closing, either Seller or Buyer may make such public
announcements or press releases with the prior written
consent of the other, which consent shall not be
unreasonably withheld or delayed.
Section 9.14 Survival. Except as provided to the
contrary herein, the provisions hereof which are to be
performed after the Closing Date and the several covenants,
agreements, representations and warranties of the parties
contained herein shall survive the Closing hereunder.
Section 9.15 Bulk Sales Laws. Seller and Buyer agree
to waive compliance in all respects with the requirements
of the bulk sales or bulk transfer laws of any jurisdiction
which may be applicable to the transactions contemplated by
this Agreement, except as required by the U.S. Small
Business Administration. Seller and its shareholders hereby
jointly and severally agree to indemnify and hold Buyer
harmless from and against any and all claims, losses,
damages, costs, expenses or liabilities which Buyer may
incur or be subjected to or which may be asserted against
Buyer by reason of Seller's failure to comply in any
respect with the requirements of applicable bulk sales or
bulk transfer laws with respect to any liabilities not
included in the Assumed Liabilities.
Section 9.16 Arbitration. Any controversy or claim
arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration in accordance with
the Rules of the American Arbitration Association, and
judgment upon the award may be entered in any Court having
jurisdiction thereof. Seller and Buyer expressly waive the
right to a trial by jury of any controversy or claim
arising out of or relating to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed on their respective behalves
by their respective duly authorized representatives, all as
of the date and year first above written.
SELLER: STUART-CLARK, INC.
By:
Its President
STUART-CLARK OFFICE FURNITURE DIVISION, INC.
By:
Its President
STUART-CLARK
MANUFACTURING, INC.
By:
Its President
BUYER: LOWENSTEIN, INC.
By: Bobby Tesney
Its Chief Executive Officer
