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As Of Filer Filing For·On·As Docs:Size Issuer Agent 6/20/08 Pure Earth, Inc. 10-12G 64:8.9M Bowne - BPC/FA |
Document/Exhibit Description Pages Size 1: 10-12G Registration of Securities (General Form) HTML 1.79M 2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 85K Liquidation or Succession 19: EX-2.10 Plan of Acquisition, Reorganization, Arrangement, HTML 109K Liquidation or Succession 3: EX-2.2 Plan of Acquisition, Reorganization, Arrangement, HTML 49K Liquidation or Succession 4: EX-2.3 Plan of Acquisition, Reorganization, Arrangement, HTML 50K Liquidation or Succession 5: EX-2.4 Plan of Acquisition, Reorganization, Arrangement, HTML 50K Liquidation or Succession 6: EX-2.5 Plan of Acquisition, Reorganization, Arrangement, HTML 44K Liquidation or Succession 7: EX-2.6 Plan of Acquisition, Reorganization, Arrangement, HTML 211K Liquidation or Succession 8: EX-2.7 Plan of Acquisition, Reorganization, Arrangement, HTML 215K Liquidation or Succession 9: EX-2.8 Plan of Acquisition, Reorganization, Arrangement, HTML 282K Liquidation or Succession 10: EX-2.8.1 Plan of Acquisition, Reorganization, Arrangement, HTML 37K Liquidation or Succession 11: EX-2.8.2 Plan of Acquisition, Reorganization, Arrangement, HTML 39K Liquidation or Succession 12: EX-2.8.3 Plan of Acquisition, Reorganization, Arrangement, HTML 29K Liquidation or Succession 13: EX-2.8.4 Plan of Acquisition, Reorganization, Arrangement, HTML 45K Liquidation or Succession 14: EX-2.8.5 Plan of Acquisition, Reorganization, Arrangement, HTML 54K Liquidation or Succession 15: EX-2.8.5A Plan of Acquisition, Reorganization, Arrangement, HTML 21K Liquidation or Succession 16: EX-2.8.6 Plan of Acquisition, Reorganization, Arrangement, HTML 24K Liquidation or Succession 17: EX-2.8.7 Plan of Acquisition, Reorganization, Arrangement, HTML 180K Liquidation or Succession 18: EX-2.9 Plan of Acquisition, Reorganization, Arrangement, HTML 112K Liquidation or Succession 20: EX-3.1.1 Articles of Incorporation/Organization or By-Laws HTML 47K 21: EX-3.1.2 Articles of Incorporation/Organization or By-Laws HTML 44K 22: EX-3.1.3 Articles of Incorporation/Organization or By-Laws HTML 71K 23: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 112K 24: EX-4.1 Instrument Defining the Rights of Security Holders HTML 18K 33: EX-4.10 Instrument Defining the Rights of Security Holders HTML 41K 34: EX-4.10.1 Instrument Defining the Rights of Security Holders HTML 25K 35: EX-4.11 Instrument Defining the Rights of Security Holders HTML 40K 36: EX-4.11.1 Instrument Defining the Rights of Security Holders HTML 26K 37: EX-4.11.2 Instrument Defining the Rights of Security Holders HTML 28K 38: EX-4.11.3 Instrument Defining the Rights of Security Holders HTML 27K 39: EX-4.11.4 Instrument Defining the Rights of Security Holders HTML 27K 40: EX-4.12 Instrument Defining the Rights of Security Holders HTML 358K 41: EX-4.13 Instrument Defining the Rights of Security Holders HTML 166K 42: EX-4.14 Instrument Defining the Rights of Security Holders HTML 93K 43: EX-4.15 Instrument Defining the Rights of Security Holders HTML 48K 44: EX-4.16 Instrument Defining the Rights of Security Holders HTML 84K 25: EX-4.2 Instrument Defining the Rights of Security Holders HTML 18K 26: EX-4.3 Instrument Defining the Rights of Security Holders HTML 18K 27: EX-4.4 Instrument Defining the Rights of Security Holders HTML 225K 28: EX-4.5 Instrument Defining the Rights of Security Holders HTML 80K 29: EX-4.6 Instrument Defining the Rights of Security Holders HTML 125K 30: EX-4.7 Instrument Defining the Rights of Security Holders HTML 104K 31: EX-4.8 Instrument Defining the Rights of Security Holders HTML 165K 32: EX-4.9 Instrument Defining the Rights of Security Holders HTML 73K 45: EX-10.1 Material Contract HTML 86K 58: EX-10.10 Material Contract HTML 76K 59: EX-10.11 Material Contract HTML 30K 60: EX-10.12 Material Contract HTML 22K 61: EX-10.13 Material Contract HTML 37K 62: EX-10.14 Material Contract HTML 39K 46: EX-10.2 Material Contract HTML 83K 47: EX-10.3 Material Contract HTML 166K 48: EX-10.4 Material Contract HTML 49K 49: EX-10.5 Material Contract HTML 65K 50: EX-10.5.1 Material Contract HTML 146K 51: EX-10.6 Material Contract HTML 69K 52: EX-10.7 Material Contract HTML 295K 53: EX-10.7.1 Material Contract HTML 82K 54: EX-10.7.2 Material Contract HTML 118K 55: EX-10.7.3 Material Contract HTML 56K 56: EX-10.8 Material Contract HTML 110K 57: EX-10.9 Material Contract HTML 44K 63: EX-16.1 Letter re: Change in Certifying Accountant HTML 25K 64: EX-21.1 Subsidiaries of the Registrant HTML 20K
Filed by Bowne Pure Compliance |
1.1 | ASSETS PURCHASED. Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller,
on the terms and conditions set forth in this Agreement the following assets as set forth in
Sections 1.1.1, 1.1.2 and 1.1.3 (“Assets”): |
1.1.1 | All accounts receivable, equipment, rolling stock, tools, patents, trademarks,
customer lists, trade and product names and miscellaneous inventory listed on Exhibit A,
together with any replacements or additions to the equipment, etc. made prior to the
closing date. |
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1.1.2 | All inventories and supplies owned by Seller listed on Exhibit A together with any
replacements or additions to the inventories made prior to the closing date, but excluding
inventory disposed of in the ordinary course of Seller’s business prior to closing. |
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1.1.3 | Seller’s goodwill. |
1.2 | ASSUMPTION OF LIABILITIES. Buyer shall assume certain of Seller’s liabilities as listed in
Exhibit B and Seller shall retain all of its other liabilities, including Seller’s liabilities
as listed in Exhibit C. |
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3.1 | Subject to adjustment as agreed following Due Diligence as defined in Section 7.2, the purchase
price for Seller’s assets shall be US$900,000 payable as follows. Twenty percent (20%) of, (a) the
after closing EBTDA (Earnings before Taxes, Depreciation and Amortization) of Buyer, payable
annually within ten (10) days after year-end audit (to be completed within 90 days of year-end),
and (b) any consideration received in the sale of Buyer or its assets, or in its liquidation to
Seller (or its designee), commencing c) after the Special Payment #1 (“$75,000 — see Exhibit B Note
2”) has been paid to Buyer from EBTDA, and d) after 2009, twenty percent (20%) of the Special
Payment #2 (“$150,000 — see Exhibit B Note 1” X 20% = $30,000) has been paid to Buyer from running
EBTDA, up to a total amount of US$900,000 (“Purchase Price”). Payments not made when due shall
bear interest at an annual rate of 8% until paid. For the avoidance of doubt, once the Special
Payment #1 has been paid to Buyer from the first EBTDA due Seller, and the 20% of Special Payment
#2 has been paid to Buyer after 2009 from the running EBTDA due Seller, then the Seller shall be
entitled to the US$900,000 maximum payment set forth above without reduction of the Special Payment
#1 or #2. |
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3.2 | In accordance with the Exclusive License Agreement and Buyer Sale Agreement between Licensor
and Buyer which shall be substantially in the form of Exhibit I — A & B, Buyer shall pay
Licensor (a) licensing fees, and a running royalty of the after closing EBTDA of Buyer payable
annually within ten (10) days after year-end audit (to be completed within ninety (90) days of
year-end) in consideration for the license and royalty contained in the exclusive license
provided by Licensor to Buyer pursuant to this Agreement. Buyer shall also pay Licensor
consideration received in the sale of Buyer, or its assets, or in any liquidation, in
accordance with the Buyer Sale Agreement, without limitation. Payments not made when due
shall bear interest
at an annual rate of 8% until paid. |
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3.3 | Buyer will fund its working capital and other cash requirements in accordance with the pro
formas and cash flow analysis completed and agreed upon by the parties as set forth in Exhibit
K, or as otherwise required for operation of its business, up to a total of $300,000. In the
event the working capital requirement exceeds $300,000 Buyer shall have the option to increase
working capital or to shut down and liquidate or sell the business. If the Buyer elects to
shut down and liquidate or sell the business (“Liquidation or Sale”), first Licensor, and if
Licensor does not elect to do so, then Seller (or Shareholders, at the election of Seller)
shall have a right to purchase the business for the following price: (a) Licensor’s price
shall be $300,000 plus any increase in working capital over $300,000 expended by Buyer prior
to Liquidation or Sale, as well as assumption of any remaining debt assumed by Buyer in this
Agreement; and (b) Seller’s price shall be $300,000 plus any increase in working capital over
$300,000 expended by Buyer prior to Liquidation or Sale, as well as assumption of any
remaining debt assumed by Buyer in this Agreement. Upon such Liquidation or Sale purchase by
Seller, Licensor shall have the exclusive and sole right to terminate this Agreement, the
License Agreement, the Buyer Sale Agreement, and any subsequent agreements between Buyer and
Licensor that may exist at the time of such Liquidation or Sale purchase. If Licensor elects
to not terminate the License or any other effective agreements, then Seller shall be bound by
the provisions of the License and any other effective agreements. Upon such Liquidation or
Sale purchase by Seller or Shareholders, all noncompetition agreements by Seller and any
Shareholders with respect to the business shall automatically terminate. Buyer shall be
responsible for all sales and transfer taxes associated with the contemplated asset purchase
transaction; provided, however, Seller agrees to execute or provide whatever documents are
necessary for Buyer to have transferred to it and receive credit
for any balance remaining on any vehicle tags of Seller. |
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3.4 | Buyer and Pure Earth, Inc. shall make its best effort to refinance Note #1 in Exhibit B
of this Agreement in the face amount of One Hundred Fifty Thousand ($150,000) Dollars to pay
the principal balance of such Note #1 with a new note to be issued to Buyer in the amount of
One Hundred Fifty Thousand ($150,000) Dollars (“Refinancing Note”) within ninety (90) days
after the execution date of this Agreement. From the date of this Agreement through the date
such Refinancing Note is issued to Buyer, Buyer and Pure Earth, Inc. shall pay interest,
guarantee and indemnify Shareholders against any and all principal, losses and expenses
including unpaid interest accruing after closing with respect to Note #1 in Exhibit B. |
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3.5 | Personal property taxes, if any, imposed upon Assets being transferred, shall be
allocated between Buyer and Seller as is customary. |
At closing, the parties shall execute the following additional agreements: |
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4.1 | A Non-competition Agreement between Buyer and Seller substantially in the form of
Exhibit E. |
4.2 | A Non-competition Agreement between Buyer and Selling Shareholder substantially in the form
of Exhibit F. |
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4.3 | An Employment Agreement between Buyer and Robert Cruso substantially in the form of Exhibit
G. |
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4.4 | A Consulting Agreement between Buyer and Frank Gencarelli substantially
in the form of Exhibit H. |
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4.5 | An Exclusive License Agreement between Licensor and Buyer substantially
in the form of Exhibit I-A, and a New Nycon Sale Agreement between Licensor and
Buyer substantially
in the form of Exhibit I-B. |
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Seller and Shareholder each represent and warrant to Buyer as follows: |
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5.1 | CORPORATE EXISTENCE. Seller is now and on the date of closing will be a corporation duly
organized and validly existing and in good standing under the laws of the State of Rhode
Island. Seller has all requisite corporate of power and authority to own, operate and/or
lease the Assets, as the case may be, and to carry own its business as now being conducted. |
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5.2 | AUTHORIZATION. The execution, delivery and performance of this
Agreement have been duly authorized and approved
by the Board of Directors and Shareholders of
Seller, and will not violate the terms of any
other agreement of Seller, and this Agreement
constitutes a valid and binding agreement of
Seller in accordance with its terms. |
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5.3 | TITLE TO ASSETS. Except as described in this Agreement, Seller
holds good and marketable title to the Assets,
free and clear of restrictions on or conditions
to transfer or assignment, and free and clear of
liens, pledges, charges or encumbrances, except
for liens that will be terminated at the
closing. |
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5.4 | BROKERS AND FINDERS. Neither Seller nor Shareholders has employed any broker or finder in
connection with the transaction contemplated by this Agreement or taken action that would give
rise to valid claims against any party for a brokerage commission, finder’s fee or other like
payment. |
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5.5 | TRANSFER NOT SUBJECT TO ENCUMBRANCES OR THIRD PARTY APPROVAL. The execution and delivery of
this Agreement by Seller and Shareholders, and the consummation of the contemplated
transactions, will not result in the creation or
imposition of any valid lien, charge or encumbrance on any of the Assets, and will not
require the authorization, consent, or approval of any third party, including any
governmental division or regulatory agency. |
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5.6 | LABOR AGREEMENTS AND DISPUTES. Seller is neither a party to, nor otherwise subject to, any
collective bargaining or other agreement governing the wages, hours, in terms of employment of
Seller’s employees. Neither Seller not Shareholders is aware of any labor dispute or labor
trouble involving employees of Seller. |
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5.7 | NONCANCELLABLE CONTRACTS. At the time of closing, there will be no material leases,
employment contracts, contracts for services, or maintenance, or other similar contacts,
existing or related to or connected with the operation of Seller’s business that are not
cancelable within thirty (30) days, except as provided in Exhibit L. |
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5.8 | LITIGATION. Seller and Shareholders have no knowledge of any claim, litigation, proceeding,
or investigation pending or threatened against Seller that might result in any material
adverse change in the business or condition of the assets being conveyed under this Agreement. |
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5.9 | ACCURACY OF REPRESENTATIONS AND WARRANTIES. None of the financial information provided by
Seller to Buyer, or representations or warranties of Seller or Selling Shareholder to Buyer
contains or will contain any untrue statements of a material fact or omit or will omit or
misstate a material fact necessary in order to make
statements in this Agreement not misleading. Seller and shareholders know of no fact that
has resulted, or that in the reasonable judgment of Seller or Shareholders will result in
material change in the business, operations, or assets of Seller that has not been set forth
in this Agreement or otherwise disclosed to Buyer. Seller and Shareholders make
no representations or warranties as to the pro formas and cash flow analysis attached hereto
as Exhibit K, or the underlying bases therefore except the information provided by Seller or
Shareholder. |
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Buyer represents and warrants as follows: |
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6.1 | CORPORATE EXISTENCE. Buyer is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware. Buyer has all requisite corporate power and
authority to enter into this Agreement and perform its obligations hereunder. |
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6.2 | AUTHORIZATION. The execution, delivery and performance of this Agreement have been duly
authorized and approved by the Board of Directors and shareholders of Buyer, and this
Agreement constitutes a valid and binding agreement of Buyer in accordance with its terms. |
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6.3 | BROKERS AND FINDERS. Buyer has not employed any broker or finder in connection with the
transactions contemplated by this Agreement and has taken no action that would give rise to a valid
claim against any party for a brokerage commission, finder’s fee or other like payment.
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6.4 | ACCURACY OF REPRESENTATIONS AND WARRANTIES. None of the representations or warranties of Buyer
contain or will contain any untrue statement of a material fact or omit or will omit or misstate a
material fact necessary in order to make the misstatements contained herein not misleading. |
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7.1 | SELLER’S OPERATION OF BUSINESS PRIOR TO CLOSING. Seller and Shareholders agree that between
the date of this Agreement and the date of closing, Seller will: |
7.1.1 | Use its best efforts to preserve its business organization and preserve the continued
operation of its business with its customers, suppliers, and others having business
relations with Seller. |
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7.1.2 | Not assign, sell, lease or otherwise transfer or dispose of any of the Assets, except
to Buyer. |
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7.1.3 | Maintain all of its Assets other than inventories in their present conditions,
reasonable wear and tear and ordinary usage accepted and maintain the inventories at levels
normally maintained. |
7.2 | ACCESS TO PREMISES AND INFORMATION. At reasonable times after the execution date of this
Agreement and prior to the closing date on April 1, 2008, Seller will provide Buyer and its
representatives with reasonable access during business hours to Seller’s business premises to
inspect the assets to be purchased under this Agreement, including any titles, contracts and
records of Seller and Seller shall furnish such additional information concerning Seller’s
businesses as Buyer may from time to time reasonably request. From the date of execution by
the parties of this Agreement through April 1, 2008, (a) Seller will give Buyer and Buyer’s
management personnel, legal counsel, accountants, and technical and financial advisors, full
access and opportunity to inspect, investigate and audit the books, records, contracts, and
other documents of
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Seller as they relate to Seller’s business and all of Seller’s assets and liabilities
(actual or contingent), including, without
limitation, inspecting Seller’s property
and conducting additional environmental
inspections of Seller’s property and
reviewing financial records, contracts,
operating plans, and other business
records, for the purposes of evaluating
issues related to the operation of
Seller’s business; and (b) Buyer will
provide Seller and the Seller Shareholders
with such financial information relating
to Buyer to allow them to assess the
ability of Buyer to consummate the
transactions contemplated by this
Agreement and to operate the business (all
activities described in this Section 7.2
to be performed by Buyer shall constitute
“Due Diligence”). |
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7.3 | EMPLOYEE MATTERS. |
7.3.1 | Prior to closing, Seller will deliver to Buyer lists of the names of all persons on
the payroll of Seller, together with a statement of amounts paid to each during Seller’s
most recent fiscal year and amounts paid for services from the beginning of the current
fiscal year to a closing date. Seller will also provide Buyer with a schedule of all
employee bonus arrangements and a schedule of other material compensation or personnel
benefits or policies in effect. |
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7.3.2 | Prior to the closing date, Seller will not, without Buyer’s prior written consent,
enter into any material agreements with its employees, increase the rate of compensation or |
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bonus payable to or to become payable to any employee or effect any change in the
management, personnel policies, or employee benefits, except in accordance with existing
employment practices. |
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7.3.3 | As of or prior to the closing date, Seller will terminate all of its employees, except
Shareholders, not having employee agreements transferable to Buyer and will pay each
employee all wages, commissions, and accrued vacation pay earned up to the
time of termination, including overtime pay, required by applicable law. |
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7.4 | CONDITIONS AND BEST EFFORTS. Seller and Shareholders will use their best efforts to
effectuate the transactions contemplated by this Agreement and to fulfill all the conditions
of the obligations of Seller and Shareholders under this Agreement, and will do all acts and
things as may be required to carry out their respective obligations under this Agreement and
to consummate and complete this Agreement. |
8.1 | CONDITIONS AND BEST EFFORTS. Buyer will use its best efforts to effectuate the transaction
contemplated by this Agreement and to fulfill all the conditions of Buyer’s obligations under
this Agreement, and shall do all acts and things as may be required to carry out Buyer’s
obligations and to consummate this Agreement. |
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8.2 | CONFIDENTIAL INFORMATION. If for any reason the sale of Assets is not closed pursuant to
this Agreement, the Parties will not use or disclose to third parties any confidential
information received from the other in the course of investigating, negotiating, and
performing the transactions contemplated by this Agreement and in accordance with the
Confidentiality Agreement already executed by the Licensor and Seller. |
9.1 | REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND SHAREHOLDERS. All representations and warranties made in this Agreement by Seller and
Shareholders shall be true as of the closing date as fully as if those such representations
and warranties had been made on or as of the date of execution of this Agreement, and, as of
the closing date, neither Seller nor Shareholders shall have violated or shall have failed
to perform in accordance with any covenant contained in this Agreement. |
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9.2 | LICENSES AND PERMITS. Buyer shall have obtained all licenses and permits from public
authorities necessary to authorize the ownership and operation of the business of Seller. |
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9.3 | CONDITIONS OF THE BUSINESS. There shall have been no material adverse change in the manner
in of operation of Seller’s business prior to the closing date. |
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9.4 | Buyer shall have satisfactorily completed its Due Diligence and acquisition audit showing
that the assets of Seller and any actual or contingent liabilities against those assets, and
the prospective business operations by Buyer of Seller’s business are substantially the same
as currently understood by Buyer as of the date of execution of this Agreement (determined
without regard to any documents which Seller or any party may have previously delivered to
Buyer). |
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9.5 | NO SUITS OR ACTIONS. At the closing date, no suit, action or other proceeding shall
have been threatened or instituted to restrain, enjoin or otherwise prevent the consummation
of this Agreement or the contemplated transactions. |
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9.6 | OTHER DELIVERIES. Customary evidence as to good standing, authorization and authority must
be delivered, the content of which shall be mutually agreed upon. |
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9.7 | SUCCESSFUL FINANCING. Buyer must secure the approval for any debt and equity financing
necessary to acquire the Assets of Seller. |
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9.8 | ENVIRONMENTAL. An environmental inspection by a licensed environmental inspection firm
contracted and paid for by Buyer must show the Assets of Seller to be free from significant
environmental liabilities. Buyer shall be given access to the property of Seller and
documents as necessary for Buyer and its agents to conduct the inspection and prepare the
reports at the Buyer’s cost. At Seller’s request, it will be supplied with a copy of such
report. Selling Shareholder and Seller shall represent and warrant as a condition of closing
that to the best of their knowledge there are no material adverse environmental liabilities
associated with Seller, with Seller’s products, assets or the property it owns. |
10.1 | All representations and warranties made in this Agreement by Buyer shall be true as of
the execution date of this Agreement as fully as though such representations and warranties have
been made on and as of the closing date, and Buyer shall not have violated or shall not have failed
to perform in accordance with any covenant contained in this Agreement. |
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10.2 | Customary evidence as to good standing, authorization and authority must be delivered,
the content of which shall be mutually agreed upon. |
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12.1 | SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and warranties made in this
Agreement shall survive the closing of this Agreement, except that any party to whom a
representation or warranty has been made in this Agreement shall be deemed to have waived any
misrepresentation or breach of representation or warranty which such party had knowledge of
prior to closing. Any party learning of a misrepresentation or breach of representation or
warranty under this Agreement shall immediately give notice thereof to all other parties to
this Agreement. The representations and warranties in this Agreement shall terminate three
(3) years from the closing date, and such representations or warranties shall thereafter be
without force or effect, except any claim with respect to which notice has been given to the
party to be charged prior to such expiration date. |
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12.2 | SELLER’S AND SHAREHOLDERS INDEMNIFICATION. |
12.2.1 | Seller and Shareholders each hereby agree to indemnify and hold Buyer, its successors and
assigns harmless from and against: |
(1) | Any and all claims, liabilities and obligations of every kind and
description, contingent or otherwise, arising out of or related to the operation of
Seller’s business (including Seller’s agreement to pay liabilities of Seller
retained by
Seller when due in the ordinary course), prior to the close of business on the
day before the closing date, except for claims, liabilities and obligations of
Seller expressly assumed by Buyer under this Agreement or paid by insurance
maintained by Seller, Shareholders or Buyer. |
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(2) | Any and all damages or deficiencies resulting from any material
misrepresentation or breach of warranty or covenant, or non-fulfillment of any
agreement on the part of Seller or the Shareholders under this Agreement. |
12.2.2 | Seller’s and Shareholders’ indemnity obligations under 12.2.1 shall be subject to the
following: |
(1) | If any claim is asserted against Buyer that would give rise to a claim
by Buyer against Seller and Shareholders for indemnification under the provisions
of this paragraph, the Buyer shall promptly give written notice to Seller and
Shareholder concerning such claim so Selling Shareholder shall, at no expense to
Buyer, defend such claim. |
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(2) | The maximum aggregate liability of Seller and Shareholders under this
Agreement shall not exceed, and Seller and Shareholders shall not be required to
indemnify Buyer for an amount that exceeds the total of $1,500,000. No claim shall
be made by Buyer against Seller or the Shareholders unless and until the aggregate
of all such claims against them aggregates in excess of $10,000; and all claims
shall be net of tax savings to and insurance coverage by Buyer. |
12.3 | BUYER’S INDEMNIFICATION. Buyer agrees to defend, indemnify and hold harmless Seller and
Shareholders from and against: |
12.3.1 | Any all claims, liabilities and obligations of every kind and description arising out of
or related to the operation of the business following closing or arising out of Buyer’s
agreement to pay liabilities of Seller assumed by Buyer under Section 1.2 when due in
the ordinary course pursuant to this Agreement. |
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12.3.2 | Any and all damages or deficiencies resulting from any material misrepresentations,
breach of warranty or covenant, or non-fulfillment of any agreement on the part of Buyer
under this Agreement. |
13.1 | TIME AND PLACE. This Agreement shall be closed at the offices of on the 1st day
of April, 2008 or such other date, time and place as the parties may agree in writing. If the
closing has not occurred on or before April 1, 2008, then either party may elect to terminate
this Agreement. If, however, the closing has not occurred because of a breach of contract by
one or more of the parties, the breaching party or parties shall remain liable for breach of
contract. |
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13.2 | OBLIGATIONS OF SELLERS AND SHAREHOLDERS AT CLOSING. At the closing, Seller and Shareholders
shall deliver to Buyer the following: |
13.2.1 | Bills of Sale, Assignments, properly endorsed Certificate of Titles, and other
instruments of transfer, in form and substance reasonably satisfactory to counsel for
Buyer, necessary to transfer and convey all of the Assets to Buyer. |
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13.2.2 | The Agreements referenced in Section 4. |
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13.2.3 | Such other certificates and documents as may be called for by the provisions of this
Agreement. |
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13.2.4 | Any payments required under Section 13.4. |
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13.3 | OBLIGATIONS OF BUYER AT
CLOSING. At the closing Buyer shall deliver to Seller the
following: |
13.3.1 | An Assumption of Liability and such other certificates and documents as may be called for
by the provisions of this Agreement. |
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13.2.2 | Any payments required under Section 13.4. |
13.4 | RECONCILIATION OF WORKING
CAPITAL AT CLOSING. At closing,
following a reconciliation by Buyer’s accountants and Seller’s accountants of Working
Capital being assumed by the Buyer, Buyer shall issue a check in payment to Seller in an
amount equal to any Excess Working Capital and Seller shall issue a check in payment to
Seller in an amount equal to any Working Capital Deficiency, so that the net Working
Capital including such check payment is equal to zero. “Working Capital” for purposes of
this Agreement shall be calculated as stated below, based upon the following Assets and
Liabilities of the Seller. |
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Working Capital equals: |
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Assets Accounts Receivable (net of any allowance for amounts deemed uncollectible) Inventory including the following: |
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Minus |
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Liabilities Accounts Payable Accrued liabilities (for any unrecorded Accounts Payable) |
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“Excess Working Capital” is defined as the amount by which Assets exceed
Liabilities in the Working Capital calculation above. |
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“Working Capital Deficiency” is defined as the amount by which Liabilities exceed Assets in
the Working Capital calculation above. |
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14.1 | BOOKS AND RECORDS. This sale does not include the books of account and records of Seller’s
business. However, possession and custody of such books and records, including Seller’s
general ledger, shall be retained by Buyer for a period of up to six (6) months. During this
period, Buyer and Seller or its agents shall have access to such books and records during
normal business hours upon advance notice and may make copies thereof. Buyer will exercise
reasonable care in the safekeeping of such records. Seller shall retain its general ledger
but shall make it available for inspection by Buyer from time to time upon reasonable request. |
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14.2 | SELLER’S RIGHT TO PAY. In the event Buyer fails to make any payment of taxes, assessments,
insurance premiums, or other charges that Buyer is required to pay to third parties under this
Agreement, Seller shall have the right, but not the obligation, to pay the same. Buyer will
reimburse Seller for any such payment immediately upon Seller’s demand, together with interest
at the annual rate of 12% from the date of Seller’s payment until Buyer reimburses Seller.
Any such payment by Seller shall not constitute a waiver by Seller of any remedy available by
reason of Buyer’s default for failure to make the payments. |
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16.1 | This Agreement may be terminated by mutual written consent of Buyer and Seller. |
|
16.2 | BREACH OF REPRESENTATIONS AND WARRANTIES; FAILURE OF CONDITIONS. Buyer may elect by notice
to Seller, and Seller may elect by notice to Buyer, to terminate this Agreement if; |
16.2.1 | The terminating party shall have discovered a material error, misstatement, or omission
in the representations and warranties made in this Agreement by the other party which shall
not have been cured by such other party within five (5) days after written notice to such
other party specifying in detail such asserted error, misstatement, or omission, or by the
closing date, whichever first occurs. |
16.2.2 | All of the conditions precedent of the terminating party’s obligations under this
Agreement as set forth in either Section 9 or 10, as the case may be, have not occurred and
have not been waived by the terminating party on or prior to the closing date. |
16.3 | CLOSING NOTWITHSTANDING THE RIGHT TO TERMINATE. The party with a right to terminate this
Agreement pursuant to Section 16.2.1 or 16.2.2 shall not be
bound to exercise such right, and its failure to exercise such right shall not constitute a
waiver of any other right it may have under this Agreement, including but not limited to
remedies for breach of a representation, warranty, or covenant. |
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19.1 | The provisions of this Agreement shall be binding upon and inure to the benefit of the heirs,
personal representatives, successors, and assigns of the parties. Any dispute arising
out of or relating to this Agreement shall be submitted by either party for arbitration to
the American Arbitration Association in Wilmington, Delaware and decided in accordance with
its rules and procedures. The decision of the Arbitration Panel or Arbitrator shall be
final and binding on the parties. |
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19.2 | Any notice or other communication required or permitted to be given under this Agreement
shall be in writing and shall be mailed by certified mail, return receipt requested, postage
prepaid, addressed to the parties as follows: |
SELLER: Nycon, Inc. | BUYER: New Nycon, Inc. | |||
Attn: Frank Gencarelli and | Attn: Mark Alsentzer and | |||
Bob Cruso | Brent Kopenhaver | |||
101 Cross Street | One Neshaminy Interplex — Suite 201 | |||
Westerly, RI 02891 | Trevose, PA 19053 | |||
Copy to: Hinckley Allen & Snyder, LLP | ||||
50 Kennedy Plaza, Suite 1500 | ||||
Providence, RI 02903 | ||||
Attn: Pasco Gasbarro Jr. | ||||
LICENSOR: Paul Bracegirdle | ||||
PO Box 88 | ||||
Langhorne, PA 19047 |
All notices and other communications shall be deemed to be given at the expiration of seven
(7) days after the date of mailing. The addresses to which notices or other communications
shall be mailed may be changed from time to time by giving written notice to the other
parties as provided above. |
||
19.3 | In the event of a default under this Agreement, the defaulting party shall reimburse the
non-defaulting party or parties for all costs and expenses reasonably incurred by the
non-defaulting party or parties in connection with the default, including without limitation
attorney fees. Additionally, in the event an arbitration action is filed under this Section
to
enforce this Agreement or with respect to this Agreement, the prevailing party or parties
shall be reimbursed by the other party for all costs and expenses incurred in connection
with such action, including without limitation reasonable attorney fees. |
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19.4 | No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver
of any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the party
making the waiver. |
19.5 | This Agreement shall be governed by and shall be construed in accordance with the laws of the
State of Delaware. |
|
19.6 | This Agreement constitutes the entire agreement between the parties pertaining to its subject
matter and it supersedes all prior contemporaneous agreements, representations, and understandings
of the parties. No supplement, modification, or amendment of this Agreement shall be binding
unless executed in writing by all parties. Witness the signatures of the parties this the 1st day
of April, 2008. |
SELLER: | ||||
BY:
|
/s/ Frank Gencarelli
|
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STATE OF R.I. |
||
SS. | ||
COUNTY OF Washington |
/s/ George A. Comolli
|
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STATE OF R.I. |
||
SS. | ||
COUNTY OF Washington |
/s/ George A. Comolli
|
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STATE OF PA |
||
SS. | ||
COUNTY OF Philadelphia |
/s/ Deanna I. Karacz
|
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STATE OF PA |
||
SS. | ||
COUNTY OF Phila. |
/s/ Deanna I. Karacz
|
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By
|
/s/ Brent Kopenhaver
|
|||
Title:
|
CFO |
STATE OF PA |
||
SS. | ||
COUNTY OF Phila. |
/s/ Deanna I. Karacz
|
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• | ACCOUNTS RECEIVABLE |
|
• | EQUIPMENT * |
|
• | INVENTORY |
|
• | PATENTS, COPYRIGHTS, TRADEMARKS, PRODUCT NAMES |
|
[LIST TO BE PROVIDED] |
* | Includes Core Copier and Pitney Bowes machine, all Dosers and Buyer shall
assume obligations with respect thereto. . |
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* | Seller’s obligation with respect to payment of this Note #2 shall be limited to
payment from 20% of EBIDA of Buyer, payable initially and within ten (10) days after
year-end audit. (“Special Payment #2”). |
|
** | Buyer and Pure Earth, Inc. shall make its best effort to refinance Note #1 in the
face amount of One Hundred Fifty Thousand ($150,000) Dollars to pay the principal
balance of such Note #1 with a new note to be issued to Buyer in the amount of One
Hundred Fifty Thousand ($150,000) Dollars (“Refinancing Note”) within ninety (90)
days after the execution of this Agreement. From the date of this Agreement through
the date such Refinancing Note is issued to Buyer, Buyer and Pure Earth, Inc. shall
pay interest, guarantee and indemnify Shareholders against any and all principal,
losses and expenses including unpaid interest accruing after closing with respect to
Note #1. Repayment (“Special Payment #1”) of new note principal shall be made
during year 2009, and beyond as required, with Seller’s obligation being twenty
percent (20%) paid from EBIDA of Buyer in accordance with the proforma and cash flow
analysis in Exhibit K. |
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• | NOTES TO OFFICERS (OTHER THAN Note #2 on Exhibit B) |
|
• | LOANS PAYABLE (other than set forth on Exhibit B) |
|
• | Liens |
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This ‘10-12G’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on: | 6/20/08 | None on these Dates | ||
4/1/08 | ||||
List all Filings |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 7/17/08 SEC UPLOAD¶ 10/03/17 1:101K Pure Earth, Inc. |