ASSET EXCHANGE
AGREEMENT
This Asset Exchange Agreement (the
“ Agreement ”), dated as of November 12, 2004,
is entered into by and among (i) Les Industries R.P. Inc., a
corporation incorporated under the laws of the Province of Quebec
(“ RP ”), (ii) SCP Pool Corporation, a Delaware
corporation (“ Parent ”), and (iii) Latham
Acquisition Corp., a Delaware corporation (“ Acquisition
Corp ”).
WHEREAS, immediately prior to the
closing of the transactions contemplated hereby, Acquisition Corp
or a subsidiary of Acquisition Corp shall acquire all of the
outstanding capital stock of Pool Technology Distributors, Inc., a
corporation incorporated under the laws of the Province of Ontario
(“ Pool Tech ”), pursuant to the certain Stock
Purchase Agreement, dated as of November 12, 2004, by and among
Latham International, L.P. and Acquisition Corp (the “
Latham Purchase ”);
WHEREAS, RP and Acquisition Corp
desire to exchange certain assets of Pool Tech (having a value of
$1,853,385) for substantially all of RP’s Canadian
manufacturing assets (having a value of $659,953) and RP’s
assumption of $1,193,432 of Pool Tech Indebtedness;
WHEREAS, at the time of the closing
of the transaction contemplated hereby, Pool Tech shall be a wholly
owned subsidiary of Acquisition Corp, and, accordingly, Acquisition
Corp will derive substantial benefit from the transactions
contemplated hereby; and
WHEREAS, in addition to the other
defined terms used herein, certain terms are defined in
Section 9.1 hereof.
NOW, THEREFORE, in consideration of
the respective representations, warranties and covenants contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
Article 1
Asset exchange
1.1 Asset Exchange. On the terms and subject to the
conditions of this Agreement, at the Closing (as defined in
Section 2.1 ), RP shall (i) sell, assign,
transfer, convey and deliver to Pool Tech, all the right, title and
interest as of the Closing of RP, in, to and under the RP Assets
(as defined in Section 1.2 ) and (ii) assume the
Pool Tech Liabilities (as defined in Section 1.8 ) in
exchange for (iii) all the right, title and interest as of
the Closing of Pool Tech, in, to and under the Pool Tech Assets (as
defined in Section 1.4 ) and (iv) the assumption
by Pool Tech of the RP Liabilities (as defined in
Section 1.7 ).
1.2 RP Assets. The term “ RP Assets
” means all the business, properties, assets, goodwill and
rights of RP of whatever kind and nature, real or personal,
tangible or intangible, wherever located and by whomever possessed,
that are owned, leased or licensed by RP on the Closing Date and
used, held for use or intended to be used solely or primarily in
the operation or conduct of the RP Business (as defined in
Section 9.1 ), including without limitation, the
following:
(a)
all raw materials, works-in-process,
inventories and other materials of the RP Business wherever located
and including all inventory in transit or on order and not yet
delivered, and all rights with respect to the processing and
completion of any works-in-process of the RP Business as of the
Closing Date (collectively, the “ RP Inventory
”);
(b) all other tangible personal property and
interests therein, including without limitation all machinery,
equipment, furniture, furnishings and vehicles of the RP Business,
including without limitation those listed on
Schedule 3.10(a)(i) (the “ RP Personal
Property ”);
(c)
all accounts receivable and notes
receivable of the RP Business as of the Closing Date, including
without limitation those listed on Schedule 1.2(c),
except to the extent the items listed on
Schedule 1.2(c) are collected prior to the Closing Date
(the “ RP Receivables ”);
(d) all service marks, trade names, business names,
copyrights, designs, design registrations, patents, trademarks,
trade secrets, confidential information, know-how, inventions,
designs and procedures, of RP that are used, held for use or
intended to be used in the operation or conduct of the RP Business
and all rights to any of the foregoing (the “ RP
Intellectual Property ”);
(e)
all claims and rights of RP under
all agreements, contracts, leases, subleases, licenses, indentures,
agreements, commitments and all other legally binding arrangements,
whether oral or written, to which RP is a party or by which RP is
bound to the extent listed on Schedule 3.8 or not
required to be listed on Schedule 3.8 (collectively, the
“ RP Contracts ”);
(f)
all credits, rebates or adjustments
from vendors, prepaid expenses, deferred charges, advance payments,
security deposits and prepaid items of RP to the extent related to
the RP Business (“ RP Prepaid Items
”);
(g) all files, customers’ and
suppliers’ lists, other distribution lists, billing records,
sales and promotional literature, manuals, customer and supplier
correspondence relating solely to the RP Business (in all cases, in
any form or medium) (the “ RP Records
”);
(h) to the extent transferable, all permits,
licenses, franchises, orders, registrations, certificates,
variances, approvals and similar rights obtained from Governmental
entities related to the RP Business and all data and records
pertaining thereto, including without limitation, those listed on
Schedule 3.16 (the “ RP Licenses and
Permits ”);
(i)
all claims, refunds, credits, causes
of action, rights of recovery and rights of set-off of every kind
and nature related solely to the RP Business;
(j)
all rights to receive and retain
mail and other communications related solely to the RP
Business;
(k) all goodwill generated by or associated solely
with the RP Business and all other intangible property of the RP
Business; and
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(l)
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all other assets of the RP Business not listed
in Section 1.3 .
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1.3 Excluded RP Assets. Notwithstanding the
foregoing, the following assets (the “ Excluded RP
Assets ”) are expressly excluded from the asset exchange
contemplated hereby:
(a)
all cash, cash equivalents and
marketable and other investment securities or stock of any
corporation;
(b) all Pool Tech Assets to be received by RP
pursuant to this Agreement and all other rights of RP under this
Agreement;
(c)
RP’s corporate charter and all
qualifications of RP to conduct business as a corporation,
arrangement with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals,
minute books, stock transfer books and blank stock certificates and
other documents relating to the organization, maintenance and
existence of RP as a corporation;
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(d)
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all insurance policies;
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(e)
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RP’s tax returns and tax
refunds;
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(f)
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all rights to real property owned or leased by
RP;
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(g)
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all bank accounts of RP; and
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(h)
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assets of any RP Plan (as defined in
Section 3.19 ).
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1.4 Pool Tech Assets. The term “
Pool Tech Assets ” means all the business, properties,
assets, goodwill and rights of Pool Tech of whatever kind and
nature, real or personal, tangible or intangible, wherever located
and by whomever possessed, that are owned, leased or licensed by
Pool Tech on the Closing Date and used,
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2
held for use or intended to be used
solely or primarily in the operation or conduct of the Pool Tech
Business (as defined in Section 9.1), including without
limitation, the following:
(a)
all raw materials, works-in-process,
inventories and other materials of the Pool Tech Business wherever
located and including all inventory in transit or on order and not
yet delivered, and all rights with respect to the processing and
completion of any works-in-process of the Pool Tech Business as of
the Closing Date (collectively, the “ Pool Tech
Inventory ”);
(b) all other tangible personal property and
interests therein, including without limitation all machinery,
equipment, furniture, furnishings and vehicles of the Pool Tech
Business, including without limitation those listed on
Schedule 4.9(a)(i) (the “ Pool Tech Personal
Property ”);
(c)
all rights to real property owned or
leased by Pool Tech to the extent used in the Pool Tech Business,
including without limitation those real estate leases listed on
Schedule 4.9(a)(ii);
(d) all accounts receivable and notes receivable of
the Pool Tech Business as of the Closing Date (the “ Pool
Tech Receivables ”);
(e)
all service marks, trade names,
business names, copyrights, designs, design registrations, patents,
trademarks, trade secrets, confidential information, know-how,
inventions, designs and procedures, of Pool Tech that are used,
held for use or intended to be used in the operation or conduct of
the Pool Tech Business and all rights to any of the foregoing,
including without limitation those specifically listed on
Schedule 1.4(e) (the “ Pool Tech Intellectual
Property ”);
(f)
all claims and rights of Pool Tech
under all agreements, contracts, leases, subleases, licenses,
indentures, agreements, commitments and all other legally binding
arrangements, whether oral or written, to which Pool Tech is a
party or by which Pool Tech is bound to the extent they relate
primarily to the Pool Tech Business, including without limitation
those listed on Schedule 4.7 (collectively, the “
Pool Tech Contracts ”);
(g) all credits, rebates or adjustments from
vendors, prepaid expenses, deferred charges, advance payments,
security deposits and prepaid items of the Pool Tech Business
(“ Pool Tech Prepaid Items ”);
(h) all files, customers’ and
suppliers’ lists, other distribution lists, billing records,
sales and promotional literature, manuals, customer and supplier
correspondence relating solely to the Pool Tech Business (in all
cases, in any form or medium) (the “ Pool Tech Records
”);
(i)
to the extent transferable, all
permits, licenses, franchises, orders, registrations, certificates,
variances, approvals and similar rights obtained from Governmental
entities related to the Pool Tech Business and all data and records
pertaining thereto (the “ Pool Tech Licenses and
Permits ”);
(j)
all claims, refunds, credits, causes
of action, rights of recovery and rights of set-off of every kind
and nature related solely to the Pool Tech Business;
(k) all rights to receive and retain mail and other
communications related solely to the Pool Tech Business;
(l)
all goodwill generated by or
associated solely with the Pool Tech Business and all other
intangible property of the Pool Tech Business ; and
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(m)
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all other assets of the Pool Tech Business not
listed in Section 1.5 .
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1.5 Excluded Pool Tech Assets. Notwithstanding the
foregoing, the following assets (the “ Excluded Pool Tech
Assets ”) are expressly excluded from the asset exchange
contemplated hereby:
(a)
all stock and assets of Kafko
International Inc. (“ Kafko Canada ”), a wholly
owned subsidiary of Pool Tech;
(b) all cash, cash equivalents and marketable and
other investment securities or stock of any corporation;
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3
(c)
all RP Assets to be received by Pool
Tech pursuant to this Agreement and all other rights of Pool Tech
under this Agreement;
(d) Pool Tech’s corporate charter and all
qualifications of Pool Tech to conduct business as a corporation,
arrangement with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals,
minute books, stock transfer books and blank stock certificates and
other documents relating to the organization, maintenance and
existence of Pool Tech as a corporation;
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(e)
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all insurance policies;
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(f)
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Pool Tech’s tax returns and tax
refunds;
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(g)
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all bank accounts of Pool Tech; and
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(h)
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assets of any Pool Tech Plan (as defined in
Section 4.18 ).
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1.6 Method of Conveyance. The sale, transfer,
conveyance, assignment and delivery by RP of the RP Assets to Pool
Tech, on the one hand, and the sale, transfer, conveyance,
assignment and delivery by Pool Tech of the Pool Tech Assets to RP,
on the other hand, each in accordance with Section 1.1
shall be effected on the Closing Date by the parties’
execution and delivery to each other of one or more bills of sale,
assignments and other conveyance instruments with respect to
RP’s transfer of the RP Assets and Pool Tech’s transfer
of the Pool Tech Assets, each in form and scope reasonably
satisfactory to the parties (collectively, the “
Conveyance Documents ”). At the Closing,
(i) good, valid and marketable title to all of the Pool Tech
Assets shall be transferred, conveyed, assigned and delivered by
Pool Tech to RP, and (ii) good, valid and marketable title to
all of the RP Assets shall be transferred, conveyed, assigned and
delivered by RP to Pool Tech, free and clear of any and all liens,
encumbrances, mortgages, security interests, pledges, claims,
equities and other restrictions or charges of any kind or nature
whatsoever.
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1.7
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Assumption of Certain RP Liabilities;
Excluded RP Liabilities.
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(a)
Upon the terms and subject to the
conditions of this Agreement, Acquisition Corp shall cause Pool
Tech to assume, effective as of the Closing, and from and after the
Closing, Acquisition Corp shall cause Pool Tech to pay, perform and
discharge when due, only the following liabilities, obligations and
commitments of RP (subject to Pool Tech’s right to dispute
such liabilities and obligations in good faith with parties to whom
such obligations are owed) (such liabilities, obligations and
commitments being the “ RP Liabilities
”):
(i)
all of RP’s payment and
performance obligations arising subsequent to the Closing under the
RP Contracts and the RP Licenses and Permits (but in each case not
including any liability or obligations for breaches thereof arising
out of or related to events or occurrences prior to the Closing
Date);
(ii) all current accrued liabilities of the RP
Business incurred in the ordinary course of business, to the extent
that such items are properly recorded in accordance with GAAP as
current liabilities in the Closing RP Working Capital Statement
prepared in accordance with Section 1.9 (“ RP
Accrued Liabilities ”);
(iii) the accounts payable of the RP Business as of
the Closing Date to the extent incurred in the ordinary course of
business and properly recorded in accordance with GAAP as accounts
payable in the Closing RP Working Capital Statement (“ RP
Accounts Payable ”); and
(iv) all other liabilities, obligations and
commitments, whether known or unknown, express or implied,
absolute, contingent or otherwise, arising out of Pool Tech’s
operation or conduct of the RP Business subsequent to the
Closing.
(b) Except as expressly set forth in
Section 1.7(a), Pool Tech shall not assume or be
responsible at any time for any liability, obligation, debt or
commitment of RP, whether absolute or contingent, accrued or
unaccrued, asserted or unasserted, or otherwise, including but not
limited to any liabilities, obligations, debts or commitments of RP
incident to, arising out of or incurred with respect to, this
Agreement and the transactions contemplated hereby (including any
and all sales, income or other Taxes arising out of the
transactions contemplated hereby). Without limiting the generality
of the foregoing, RP and Parent expressly acknowledge and agree
that RP shall retain, and that Pool Tech shall not assume or
otherwise be obligated to pay, perform, defend or discharge,
(i) any liability of RP and/or Parent for income Taxes or
other Taxes, (ii) any liability of RP arising from
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breach of law, breach of Contract or
tort, (iii) any liability, obligation, debt or commitment of
RP to Parent or any other Affiliate of RP or Parent, (iv) any
liability, obligation, or commitment of RP with respect to any
collective bargaining or similar agreement to which RP is a party,
or (v) any Indebtedness of RP (collectively, the “
Excluded RP Liabilities ”). RP and Parent further
agree to satisfy and discharge as the same shall become due all
obligations and liabilities of RP not specifically assumed by Pool
Tech hereunder.
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1.8
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Assumption of Certain Pool Tech Liabilities;
Excluded Pool Tech Liabilities.
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(a)
Upon the terms and subject to the
conditions of this Agreement, RP shall assume, effective as of the
Closing, and from and after the Closing, RP shall pay, perform and
discharge when due, only the following liabilities, obligations and
commitments of Pool Tech (subject to RP’s right to dispute
such liabilities and obligations in good faith with parties to whom
such obligations are owed) (such liabilities, obligations and
commitments being the “ Pool Tech Liabilities
”):
(i)
all of Pool Tech’s payment and
performance obligations arising subsequent to the Closing under the
Pool Tech Contracts and the Pool Tech Licenses and Permits (but in
each case not including any liability or obligations for breaches
thereof arising out of or related to events or occurrences prior to
the Closing Date);
(ii) all current accrued liabilities of the Pool
Tech Business incurred in the ordinary course of business, to the
extent that such items are properly recorded in accordance with
GAAP as current liabilities in the Closing Pool Tech Working
Capital Statement prepared in accordance with
Section 1.10 (“ Pool Tech Accrued
Liabilities ”);
(iii) the accounts payable of the Pool Tech Business
as of the Closing Date to the extent incurred in the ordinary
course of business and properly recorded in accordance with GAAP as
accounts payable in the Closing Pool Tech Working Capital Statement
(“ Pool Tech Accounts Payable ”);
(iv) the liabilities and obligations of Pool Tech
under that certain promissory note payable to Ft. Wayne Pools, Inc.
in the principal amount of $1,193,432 originally issued by Latham
Splash Canada, Inc., an Ontario corporation, and assigned to and
assumed by Pool Tech (the “ FWP Note ”);
and
(v) all other liabilities, obligations and
commitments, whether known or unknown, express or implied,
absolute, contingent or otherwise, arising out of RP’s
operation or conduct of the Pool Tech Business subsequent to the
Closing.
(b) Except as expressly set forth in
Section 1.8(a), RP shall not assume or be responsible
at any time for any liability, obligation, debt or commitment of
Pool Tech, whether absolute or contingent, accrued or unaccrued,
asserted or unasserted, or otherwise, including but not limited to
any liabilities, obligations, debts or commitments of Pool Tech
incident to, arising out of or incurred with respect to, this
Agreement and the transactions contemplated hereby (including any
and all sales, income or other Taxes arising out of the
transactions contemplated hereby). Without limiting the generality
of the foregoing, Acquisition Corp expressly acknowledges and
agrees that Pool Tech shall retain, and that RP shall not assume or
otherwise be obligated to pay, perform, defend or discharge,
(i) any liability of Pool Tech and/or Acquisition Corp for
income Taxes or other Taxes, (ii) any liability of Pool Tech
arising from breach of law, breach of Contract or tort,
(iii) any liability, obligation, debt or commitment of Pool
Tech to Acquisition Corp or any other Affiliate of Pool Tech or
Acquisition Corp, or (iv) any Indebtedness of Pool Tech other
than the FWP Note (collectively, the “ Excluded Pool Tech
Liabilities ”). Acquisition Corp further agrees to cause
Pool Tech to satisfy and discharge as the same shall become due all
obligations and liabilities of Pool Tech not specifically assumed
by RP hereunder.
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1.9
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RP Working Capital Adjustment.
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(a)
As soon as practicable, but in no
event later than 90 days following the Closing Date, Acquisition
Corp shall cause Pool Tech to determine the Working Capital of the
RP Business as of the Closing Date in accordance with GAAP (the
“ RP Working Capital ”) and shall deliver to RP
a written statement (“ Pool Tech’s Statement
”) setting forth its determination of the RP Working Capital.
Acquisition Corp shall cause Pool Tech to afford RP, or its
representatives, access to the records and personnel of the RP
Business for the purpose of reviewing such determination. If RP
objects to any item contained in Pool Tech’s Statement, such
objection shall be made in writing and delivered to Pool Tech
within 20 business days following RP’s receipt of Pool
Tech’s Statement, failing
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which such statement shall be deemed
to have been accepted by RP (such accepted statement and RP Working
Capital are referred to herein as the “ Closing RP Working
Capital Statement ” and “ Closing RP Working
Capital ,” respectively). If RP so notifies Pool Tech of
an objection to Pool Tech’s Statement, the parties shall
negotiate in good faith regarding such disagreement.
(b) If the parties fail to agree on any item
contained in Pool Tech’s Statement within 10 business days of
receipt by Pool Tech of RP’s statement of objections, RP
shall submit Pool Tech’s Statement to PricewaterhouseCoopers
(the “ Independent Accountant ”). RP shall use
its reasonable best efforts to cause the Independent Accountant to
review Pool Tech’s Statement as soon as practicable, but in
any event within thirty (30) business days after the delivery of
Pool Tech’s Statement to the Independent Accountant. The
determination of the Closing RP Working Capital by the Independent
Accountant shall be final and binding on RP and Acquisition Corp
and not subject to review, challenge or adjustment absent fraud.
The costs and expenses of the services of the Independent
Accountant’s review shall be borne and paid by the party that
the Independent Accountant determines to be least correct in its
determination of the RP Working Capital.
(c)
On a date that is mutually
convenient to Acquisition Corp and RP, but in any event not more
than 5 business days after the final determination of the Closing
RP Working Capital in accordance with Section 1.9(b) and
(c) above (the “ Adjustment Date ”),
Acquisition Corp and RP shall make the following working capital
adjustments:
(i)
if the Closing RP Working Capital is
less than $387,000 (the “ Target RP Working Capital
”) by more than $50,000 , RP shall pay to Pool Tech an amount
equal to such deficit; or
(ii) if the Closing RP Working Capital is greater
than the Target RP Working Capital by more than $50,000,
Acquisition Corp shall cause Pool Tech to pay to RP an amount equal
to such excess.
(d) Any amounts payable pursuant to
Section 1.9(c) shall be paid within five (5) business
days after the Adjustment Date in immediately available
funds.
(e)
All calculations to be made for the
purpose of calculating those amounts which are required to be
calculated in accordance with this Section 1.9 shall be made
in U.S. Dollars, and if any of the underlying amounts required to
be used for making such calculations are expressed in Canadian
Dollars, such underlying amounts shall be converted into U.S.
Dollars using the closing exchange rate as quoted by the Bank of
Canada on the last day preceding the Closing.
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1.10
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Pool Tech Working Capital
Adjustment.
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(a)
As soon as practicable, but in no
event later than 90 days following the Closing Date, RP shall
determine the Working Capital of the Pool Tech Business as of the
Closing Date in accordance with GAAP (the “ Pool Tech
Working Capital ”) and shall deliver to Acquisition Corp
a written statement (“ RP’s Statement ”)
setting forth its determination of the Pool Tech Working Capital.
RP shall afford Acquisition Corp, or its representatives, access to
the records and personnel of the Pool Tech Business for the purpose
of reviewing such determination. If Acquisition Corp objects to any
item contained in the RP Statement, such objection shall be made in
writing and delivered to RP within 20 business days following
Acquisition Corp’s receipt of the RP Statement, failing which
such statement shall be deemed to have been accepted by Acquisition
Corp (such accepted statement and Pool Tech Working Capital are
referred to herein as the “ Closing Pool Tech Working
Capital Statement ” and “ Closing Pool Tech
Working Capital ,” respectively). If Acquisition Corp so
notifies RP of an objection to RP’s Statement, the parties
shall negotiate in good faith regarding such
disagreement.
(b) If the parties fail to agree on any item
contained in RP’s Statement within 10 business days of
receipt by RP of Acquisition Corp’s statement of objections,
Acquisition Corp shall submit RP’s Statement to
PricewaterhouseCoopers (the “ Independent Accountant
”). Acquisition Corp shall use its reasonable best efforts to
cause the Independent Accountant to review RP’s Statement as
soon as practicable, but in any event within thirty (30) business
days after the delivery of RP’s Statement to the Independent
Accountant. The determination of the Closing Pool Tech Working
Capital by the Independent Accountant shall be final and binding on
Acquisition Corp and RP and not subject to review, challenge or
adjustment absent fraud. The costs and expenses of the services of
the Independent Accountant’s review shall be borne and paid
by the party that the Independent Accountant determines to be least
correct in its determination of the Pool Tech Working
Capital.
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(c)
On a date that is mutually
convenient to RP and Acquisition Corp, but in any event not more
than 5 business days after the final determination of the Closing
Pool Tech Working Capital in accordance with
Section 1.10(b) and (c) above (the “
Adjustment Date ”), RP and Acquisition Corp shall make
the following working capital adjustments:
(i)
if the Closing Pool Tech Working
Capital is less than $1,176,611(the “ Target Pool Tech
Working Capital”) by more than $50,000, Acquisition Corp
shall cause Pool Tech to pay to RP an amount equal to such deficit;
or
(ii) if the Closing Pool Tech Working Capital is
greater than the Target Pool Tech Working Capital by more than
$50,000, RP shall pay to Pool Tech an amount equal to such
excess.
(d) Any amounts payable pursuant to
Section 1.10(c) shall be paid within five (5) business
days after the Adjustment Date in immediately available
funds.
(e)
All calculations to be made for the
purpose of calculating those amounts which are required to be
calculated in accordance with this Section 1.10 shall be
made in U.S. Dollars, and if any of the underlying amounts required
to be used for making such calculations are expressed in Canadian
Dollars, such underlying amounts shall be converted into U.S.
Dollars using the closing exchange rate as quoted by the Bank of
Canada on the last day preceding the Closing.
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1.11
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Accounts Payable and Accrued
Liabilities.
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(a)
RP shall pay all of its accounts
payable, accrued liabilities and all other Excluded RP Liabilities
(including without limitation all wages and salaries payable)
arising out of the ownership or operation of the RP Assets or the
RP Business prior to the Closing Date as they come due and payable,
except those RP Accounts Payable and RP Accrued Liabilities which
are not due or payable prior to the Closing Date and are assumed by
Pool Tech at the Closing pursuant to Section 1.7
hereof. In the event Pool Tech receives an invoice, bill or other
demand for payment relating to any accounts payable, accrued
liabilities or other liabilities in connection with the ownership
or operation of the RP Assets or the RP Business prior to the
Closing Date and which is not included in the Closing RP Working
Capital as shown in the Closing RP Working Capital Statement, such
invoice, bill or demand for payment, as the case may be, shall be
forwarded to RP and/or Parent, each of whom agrees to promptly (but
in no event later than 30 days after demand by Pool Tech) make
payment therefore.
(b) Acquisition Corp shall cause Pool Tech to pay
all of its accounts payable, accrued liabilities and all other
Excluded Pool Tech Liabilities (including without limitation all
wages and salaries payable) arising out of the ownership or
operation of the Pool Tech Assets or the Pool Tech Business prior
to the Closing Date as they come due and payable, except those Pool
Tech Accounts Payable and Pool Tech Accrued Liabilities which are
not due or payable prior to the Closing Date and are assumed by RP
at the Closing pursuant to Section 1.8 hereof. In the
event RP receives an invoice, bill or other demand for payment
relating to any accounts payable, accrued liabilities or other
liabilities in connection with the ownership or operation of the
Pool Tech Assets or the Pool Tech Business prior to the Closing
Date and which is not included in the Closing Pool Tech Working
Capital as shown in the Closing Pool Tech Working Capital
Statement, such invoice, bill or demand for payment, as the case
may be, shall be forwarded to Pool Tech and/or Acquisition Corp,
each of whom agrees to promptly (but in no event later than 30 days
after demand by RP) make payment therefore.
(a)
At Closing, RP shall pay all stamp,
transfer, documentary, excise, sales or other comparable taxes due
with respect to the sale of the RP Assets. Acquisition Corp shall
cause Pool Tech to pay any taxes accruing with respect to the RP
Business and the RP Assets on and after the Closing Date. RP shall
be responsible for and shall pay all income, gross revenue, or
similar taxes with respect to the RP Business and the RP Assets
accruing before the Closing Date. All taxes referred to in this
Section 1.12(a) shall include any penalties and
interest incurred in relation to such taxes.
(b) At Closing, Acquisition Corp shall cause Pool
Tech to pay all stamp, transfer, documentary, excise, sales or
other comparable taxes due with respect to the sale of the Pool
Tech Assets. RP shall pay any taxes accruing with respect to the
Pool Tech Business and the Pool Tech Assets on and after the
Closing Date. Acquisition Corp shall cause Pool Tech to be
responsible for and shall pay all income, gross revenue,
or
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similar taxes with respect to the
Pool Tech Business and the Pool Tech Assets accruing before the
Closing Date. All taxes referred to in this
Section 1.12(b) shall include any penalties and
interest incurred in relation to such taxes.
(a)
Risk of loss or destruction or
damage to the RP Assets shall pass to Pool Tech at and upon
Closing, regardless of the physical location of the RP Assets. RP
shall, and Acquisition Corp shall cause Pool Tech to, take all
steps and actions as may be required to put Pool Tech in actual
possession, operation, control and responsibility for the RP Assets
on the Closing Date.
(b) Risk of loss or destruction or damage to the
Pool Tech Assets shall pass to RP at and upon Closing, regardless
of the physical location of the Pool Tech Assets. RP shall, and
Acquisition Corp shall cause Pool Tech to, take all steps and
actions as may be required to put RP in actual possession,
operation, control and responsibility for the Pool Tech Assets on
the Closing Date.
(a)
RP shall bear all responsibilities
and pay any and all costs associated with the transfer and delivery
of the RP Assets from RP to Pool Tech. Acquisition Corp shall cause
Pool Tech to bear all responsibilities and pay any and all costs
associated with registering its ownership interests in the RP
Assets.
(b) Acquisition Corp shall cause Pool Tech to bear
all responsibilities and pay any and all costs associated with the
transfer and delivery of the Pool Tech Assets from Pool Tech to RP.
RP shall bear all responsibilities and pay any and all costs
associated with registering its ownership interests in the Pool
Tech Assets.
Article 2
CLOSING
2.1 Closing. The closing of the Acquisition (the
“ Closing ”) shall take place immediately after
the closing of the Latham Purchase (the “ Closing Date
”).
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2.2
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Items to be Delivered at Closing.
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(a)
At or prior to the Closing and
subject to the terms and conditions herein contained, RP shall
deliver to Pool Tech the following:
(i)
such bills of sale and other good
and sufficient instruments and documents of conveyance and
transfer, in form reasonably satisfactory to Acquisition Corp and
its counsel, as shall be necessary and effective to transfer and
assign to, and vest in, Pool Tech all of RP’s right, title
and interest in and to the RP Assets and assigning to Pool Tech
(together with any necessary consents) all RP Contracts
included in the RP Assets to the extent assignable (to the
extent non-assignable, it is understood and agreed that Pool Tech
shall receive the economic benefit thereto, to the extent
reasonably practicable, as provided in
Section 2.3(a));
(ii) copies of all of the documents, books, records,
papers, files, computer programs, data and other tangible property
belonging to RP which relate to or are part of the RP
Assets;
(iii) evidence of the release of any mortgages, liens,
pledges, security interests, charges, claims, restrictions and
encumbrances affecting any of the RP Assets; and
(iv) such other documents as may be necessary to
consummate the transactions contemplated by this
Agreement
and simultaneously with such
delivery, all such steps will be taken as may be required to put
Pool Tech in actual possession and operating control of the
RP Assets.
(b) At or prior to the Closing and subject to the
terms and conditions herein contained, Acquisition Corp shall cause
Pool Tech to deliver to RP the following:
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(i)
such bills of sale and other good
and sufficient instruments and documents of conveyance and
transfer, in form reasonably satisfactory to RP and its counsel, as
shall be necessary and effective to transfer and assign to, and
vest in, RP all of Pool Tech’s right, title and interest in
and to the Pool Tech Assets and assigning to RP (together with any
necessary consents) all Pool Tech Contracts included in the Pool
Tech Assets to the extent assignable (to the extent non-assignable,
it is understood and agreed that RP shall receive the economic
benefit thereto, to the extent reasonably practicable, as provided
in Section 2.3(b));
(ii) copies of all of the documents, books, records,
papers, files, computer programs, data and other tangible property
belonging to Pool Tech which relate to or are part of the Pool Tech
Assets;
(iii) evidence of the release of any mortgages, liens,
pledges, security interests, charges, claims, restrictions and
encumbrances affecting any of the Pool Tech Assets; and
(iv) such other documents as may be necessary to
consummate the transactions contemplated by this
Agreement
and simultaneously with such
delivery, all such steps will be taken as may be required to put RP
in actual possession and operating control of the Pool Tech
Assets.
(c)
At or prior to the Closing and
subject to the terms and conditions herein contained, RP and
Acquisition Corp shall deliver to each other the certificates
referred to in Article 6 .
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2.3
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Assignment of Certain Contracts.
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(a)
To the extent that RP’s rights
under any RP Contract to be assigned to Pool Tech hereunder
may not be assigned without the consent of another person which has
not been obtained, this Agreement shall not constitute an agreement
to assign the same if an attempted assignment would constitute a
breach thereof or be unlawful and RP, at its expense, shall use its
best effort to obtain any such required consent(s) as promptly as
possible. If any such consent shall not be obtained or if any
attempted assignment would be ineffective or would impair Pool
Tech’s rights under the RP Contract in question so that
Pool Tech would not in effect acquire the benefit of all such
rights, RP, to the maximum extent permitted by law and the
RP Contract, shall act after the Closing as Pool Tech’s
agent in order to obtain for it the benefits thereunder and shall
cooperate, to the maximum extent permitted by law and the
RP Contract, with Pool Tech in any other reasonable
arrangement designed to provide such benefits to Pool
Tech.
(b) To the extent that Pool Tech’s rights
under any Pool Tech Contract to be assigned to RP hereunder may not
be assigned without the consent of another person which has not
been obtained, this Agreement shall not constitute an agreement to
assign the same if an attempted assignment would constitute a
breach thereof or be unlawful and Acquisition Corp shall cause Pool
Tech to, at Pool Tech’s expense, use its best effort to
obtain any such required consent(s) as promptly as possible. If any
such consent shall not be obtained or if any attempted assignment
would be ineffective or would impair RP’s rights under the
Pool Tech Contract in question so that RP would not in effect
acquire the benefit of all such rights, Acquisition Corp shall
cause Pool Tech, to the maximum extent permitted by law and the
Pool Tech Contract, to act after the Closing as RP’s agent in
order to obtain for it the benefits thereunder and shall cooperate,
to the maximum extent permitted by law and the Pool Tech Contract,
with RP in any other reasonable arrangement designed to provide
such benefits to RP.
(a)
RP from time to time after the
Closing, at Pool Tech’s request, will execute, acknowledge
and deliver to Pool Tech such other instruments of conveyance and
transfer and will take such other actions and execute and deliver
such other documents, certifications and further assurances as Pool
Tech may reasonably require in order to vest more effectively in
Pool Tech, or to put Pool Tech more fully in possession of, any of
the RP Assets.
(b) Acquisition Corp shall cause Pool Tech from
time to time after the Closing, at RP’s request, to execute,
acknowledge and deliver to RP such other instruments of conveyance
and transfer and will take such other actions and execute and
deliver such other documents, certifications and further assurances
as RP may reasonably require in order to vest more effectively in
RP, or to put RP more fully in possession of, any of the Pool Tech
Assets.
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2.5
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Termination in Absence of Closing.
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(a)
If by the close of business on
February 28, 2005, the Closing has not occurred, then either
Acquisition Corp or RP may thereafter terminate this agreement by
written notice to such effect, to the other parties hereto, without
liability of or to any party to this Agreement or any shareholder,
director, officer, employee or representative of such party unless
the reason for the Closing having not occurred is (i) such
party’s willful breach of the provisions of this Agreement,
or (ii) if all of the conditions to such party’s
obligations set forth in Article 6 have been satisfied or
waived in writing by the date scheduled for the Closing pursuant to
Section 2.1 , the failure of such party to perform its
obligations under this Article 2 on such date;
provided , however , that any termination pursuant to
this Section 2.5 shall not relieve any party hereto who
was responsible for Closing having not occurred as described in
clauses (i) or (ii) above of any liability for (x) such
party’s willful breach of the provisions of this Agreement,
or (y) if all of the conditions to such party’s obligations
set forth in Article 6 have been satisfied or waived in
writing by the date scheduled for the Closing pursuant to
Section 2.1 , the failure of such party to perform its
obligations under this Article 2 on such date.
(b) This Agreement and the transactions
contemplated herein may be terminated and abandoned at any time on
or prior to the Closing Date by Acquisition Corp if:
(i)
any representation or warranty made
herein for the benefit of Acquisition Corp, or any certificate,
schedule or document furnished to Acquisition Corp pursuant to this
Agreement is untrue in any material respect; or
(ii) RP or Parent shall have defaulted in any
material respect in the performance of any material obligation
under this Agreement.
(c)
This Agreement and the transactions
contemplated herein may be terminated and abandoned at any time on
or prior to the Closing Date by RP if:
(i)
any representation or warranty made
herein for the benefit of RP, or any certificate, schedule or
document furnished to RP pursuant to this Agreement is untrue in
any material respect; or
(ii) Acquisition Corp shall have defaulted in any
material respect in the performance of any material obligation
under this Agreement.
Article 3
REPRESENTATIONS AND WARRANTIES OF
RP
RP hereby represents and warrants to
Acquisition Corp:
3.1 Corporate Existence of RP and Parent. Each of
Parent and RP is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction in which it is
organized, and RP has all requisite corporate power to carry on its
business as currently conducted and to own and operate the RP
Assets.
3.2 Corporate Power of RP and Parent;
Authorization; Enforceable Obligations. Each of RP and Parent has
the corporate power, authority and legal right to execute, deliver
and perform this Agreement. The execution, delivery and performance
of this Agreement by each of RP and Parent has been duly authorized
by all necessary corporate and shareholder action. This Agreement
has been duly executed and delivered on behalf of each of RP and
Parent by duly authorized officers of RP and Parent, and
constitutes the legal, valid and binding obligations of RP and
Parent, enforceable against each of RP and Parent in accordance
with its terms, except as such enforcement may be limited by
general equitable principles or by applicable bankruptcy,
insolvency, moratorium, or similar laws and judicial decisions from
time to time in effect which affect creditors’ rights
generally.
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3.3
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Capitalization of RP. Parent beneficially owns
all of the outstanding capital stock of RP.
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3.4 No RP Conflicts; Consents. Except as set forth
in Schedule 3.4 , the execution, delivery and performance of
this Agreement by RP does not and will not violate, conflict with
or result in the breach of any term, condition or provision of, or
require the consent of any Person under, (a) any existing law,
ordinance, or governmental rule or regulation to which RP is
subject, (b) any judgment, order, writ, injunction, decree or award
of any court, arbitrator or governmental or regulatory official,
body or authority which is applicable to RP, (c) the
phx-srv01\1470349v04
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charter documents or bylaws of RP or
any securities issued by RP, or (d) any mortgage, indenture, loan,
agreement, contract, commitment, lease, or other instrument,
document or understanding, oral or written, to which RP is a party,
by which RP may have rights or by which any of the RP Assets may be
bound or affected, or give any party with rights thereunder the
right to terminate, modify, accelerate or otherwise change the
existing rights or obligations of RP thereunder. Except for the
Hart-Scott-Rodino filing with respect to the Latham Purchase, no
authorization, approval or consent of, and no registration or
filing with, any governmental or regulatory official, body or
authority or any other person is required in connection with the
execution, delivery or performance of this Agreement by
RP.
3.5 No Parent Conflicts; Consents. The execution,
delivery and performance of this Agreement by Parent does not and
will not violate, conflict with or result in the breach of any
term, condition or provision of, or require the consent of any
Person under, (a) any existing law, ordinance, or governmental rule
or regulation to which Parent is subject, (b) any judgment, order,
writ, injunction, decree or award of any court, arbitrator or
governmental or regulatory official, body or authority which is
applicable to Parent, (c) the charter documents or bylaws of Parent
or any securities issued by Parent, or (d) any mortgage, indenture,
loan, agreement, contract, commitment, lease, or other instrument,
document or understanding, oral or written, to which Parent is a
party, by which Parent may have rights or by which any of the RP
Assets may be bound or affected, or give any party with rights
thereunder the right to terminate, modify, accelerate or otherwise
change the existing rights or obligations of Parent thereunder.
Except for the Hart-Scott-Rodino filing with respect to the Latham
Purchase, no authorization, approval or consent of, and no
registration or filing with, any governmental or regulatory
official, body or authority or any other person is required in
connection with the execution, delivery or performance of this
Agreement by Parent.
3.6 Financial Statements. Copies of the unaudited
balance sheets and income statements of the RP Business as of and
for the fiscal years ended December 31, 2003, and as of and
for the eight-month period ended August 31, 2004 (collectively, the
“ RP Financial Statements ”) are attached
hereto as Schedule 3.6 . The RP Financial Statements
were prepared from RP’s books and records, and the
RP Financial Statements present fairly the financial condition
and results of operations of the RP Business for the periods
referred to therein and have been prepared in accordance with GAAP,
except, in the case of the interim RP Financial Statements, for
normal year-end adjustments.
3.7 Inventory. The RP Inventory consists, and as of
the Closing Date will consist, only of items of a quality,
condition and quantity consistent with normal seasonally-adjusted
inventory levels of the RP Business and be usable and saleable in
the ordinary and usual course of business for the purposes for
which intended except to the extent written down or reserved
against in the Closing RP Working Capital Statement. The RP
Inventory is reflected in the books and records of RP in accordance
with GAAP (on a standard cost basis) at the lower of cost or
market, and the value of obsolete materials, materials below
standard quality and slow-moving materials have been written down
in accordance with GAAP. Except as set forth in
Schedule 3.7 , during 2004, there have not been any
changes in the value of, or establishment of any reserve against
any RP Inventory, except for changes and reserves in the ordinary
course of business and consistent with past practices.
3.8 Status of Contracts. Set forth on
Schedule 3.8 is a list of all RP Contracts relating to
the operation of the RP Business or the RP Assets, except
(a) any RP Contracts entered into in the ordinary course of
business that involve an aggregate expenditure in any year of less
than $50,000, provided that all of such undisclosed RP Contracts do
not involve expenditures in excess of $100,000 in the aggregate,
(b) any purchase orders or commitments entered into in the
ordinary course of business for less than $10,000 per calendar
quarter, and (c) any RP Contracts relating to Excluded RP
Assets. Except as set forth on Schedule 3.8 , all such
RP Contracts are valid and in full force and effect, and neither
RP, nor to the knowledge of RP, any other party thereto is in
default in any material respect under the terms thereof.
3.9 Receivables. All the RP Receivables (a)
represent actual indebtedness incurred by the applicable account
debtor, (b) have arisen from bona fide transactions in the ordinary
course of business and (c) are not subject to any defense,
deduction, setoff or similar right, except to the extent fully
reserved against as set forth in the August 31, 2004 balance sheet
included in the RP Financial Statements. During 2004, there have
not been any changes in reserves or write-offs as uncollectible of
any RP Receivables, except for write-offs and reserves in the
ordinary course of business and consistent with past
practices.
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3.10
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Schedules ; Title to RP Assets
.
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(a)
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The following Schedules set forth the
information indicated:
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phx-srv01\1470349v04
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(i)
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Schedule 3.10(a)(i) is a list/description of the RP Personal
Property;
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(ii) Schedule 3.10(a)(ii)
is a list of the RP Assets that are
not owned by RP, but are leased to RP, such that the interest
therein to be conveyed to Pool Tech is that of a leasehold
interest, together with an identification of such lease;
(iii) Schedule 3.10(a)(iii)
is a list of all leases to which any
of the RP Assets owned by RP are subject;
(b) RP has good, valid and marketable title to all
of the RP Assets free and clear of any Liens other than
Permitted Liens and the Liens listed on
Schedule 3.10(b) (which will be released prior to the
Closing) and except for (i) any RP Assets subject to a
leasehold interest, as identified on
Schedule 3.10(a)(ii) and (ii) such
RP Inventory as has been disposed of in the ordinary course of
business.
3.11 Absence of Known Undisclosed Liabilities. Except
as disclosed on Schedule 3.11 , RP has no knowledge of
any basis for the assertion against the RP Business of any material
liability of the type required to be reflected on a balance sheet
prepared in accordance with GAAP in connection with or affecting
the RP Assets, and there are no circumstances, conditions,
happenings, events, or arrangements, contractual or otherwise,
which may give rise to such liabilities, except commercial
liabilities and obligations incurred in the ordinary course of
business by RP and consistent with past practices.
3.12 Creditors. The transactions contemplated by this
Agreement were not entered into by RP with the intent to hinder,
delay or defraud any of RP’s creditors.
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3.13
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Intellectual Property.
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(a)
RP owns or has (and following the
Closing, Pool Tech will own or have) the right to use, pursuant to
a license, a sublicense, an agreement, or permission, the
RP Intellectual Property. The consummation of the transactions
contemplated by this Agreement will not result in the termination,
modification or cancellation of the interests of RP or, following
the Closing, Pool Tech in the RP Intellectual Property to be
transferred to Pool Tech hereunder.
(b) RP has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any
intellectual property rights of third parties, and RP has not
received any charge, complaint, claim, demand, or notice alleging
any such interference, infringement, misappropriation, or violation
(including any claim that RP must license or refrain from using any
intellectual property rights of any third party). To the knowledge
of RP, no third party has interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any
intellectual property rights of RP.
(c)
RP has delivered to Acquisition Corp
correct and complete copies of all registrations, applications,
licenses, agreements, and permissions (as amended to date) relating
to the RP Intellectual Property and has made available to
Acquisition Corp correct and complete copies of all other written
documentation evidencing ownership and prosecution (if applicable)
of the RP Intellectual Property. With respect to each item of
RP Intellectual Property:
(i)
In the case of owned
RP Intellectual Property, RP possesses all right, title, and
interest in and to the item, free and clear of any Lien (other than
Liens listed on Schedule 3.10(b), which will be
released prior to Closing), encumbrance, privilege, or other
security interest in favor of a third person; and in the case of
licensed RP Intellectual Property, RP possesses the rights set
forth in the applicable license agreements;
(ii) the item is not subject to any outstanding
injunction, judgment, order, decree, ruling, or charge;
(iii) no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand is pending or is
threatened which challenges the legality, validity, enforceability,
use, or ownership of the item; and
(iv) RP has never agreed to indemnify any person
other than Pool Tech and/or Acquisition Corp for or against any
interference, infringement, misappropriation, or other conflict
with respect to the item.
phx-srv01\1470349v04
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3.14 Litigation and Claims. Except as set forth in
Schedule 3.14 , there is no action, suit, investigation
or proceeding at law or in equity, any arbitration or any
administrative or other proceeding relating to the RP Business
or the RP Assets or to RP’s ability or right to sell the
RP Assets, by or before any court, governmental
instrumentality or agency, pending or, to the knowledge of RP,
threatened or contemplated in writing against or affecting RP, or
any of its properties or rights, that is likely to have a Material
Adverse Effect. RP is not currently subject to any judgment, order
or decree entered in any lawsuit or proceeding.
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3.15
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Compliance with Laws.
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(a)
RP is in compliance in all material
respects with, and is not in default or violation in any material
respect under, and has not conducted its operations in violation in
any material respect of, any law, rule, regulation, decree or order
applicable to the RP Business or the
RP Assets.
(b) Except as set forth in Schedules 3.15 ,
at no time during the last three years has RP been notified in
writing that it was the subject of any federal, provincial or
foreign criminal investigation, or been notified in writing by any
Governmental Entity of any violation of any law, regulation,
ordinance, rule or order, except for failures to so comply that
would not have a Material Adverse Effect on the
RP Business.
3.16 Licenses and Permits. RP possesses such material
federal, provincial, and local licenses, permits and other
authorizations necessary for the continued conduct of the
RP Business in the ordinary course, consistent with past
practices, without material interruption (collectively “
RP Permits ”), including, without limitation, those
listed on Schedule 3.16 other than such RP Permits
the absence of which, individually, or in the aggregate, has not
had and could not reasonably be expected to have a Material Adverse
Effect, and such RP Permits are in full force and effect and
have been and are being fully complied with by RP in all material
respects. None of the governmental agencies or instrumentalities
that have issued the RP Permits has notified RP in writing of
its intent to modify, revoke, terminate or fail to renew any such
RP Permit, and, to the knowledge of RP, no such action has
been threatened. No RP Permit shall be modified, revoked or
shall lapse as a result of the Acquisition.
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3.17
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Environmental Compliance.
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(a)
With respect to the RP Business
and the RP Assets, RP possesses all necessary RP Permits
that are required under, and at all times in the past has been in
material compliance with, all Environmental Laws, including all
Environmental Laws governing the generation, use, collection,
treatment, storage, transportation, recover, removal, discharge or
disposal of Hazardous Materials and all Environmental Laws imposing
record-keeping, maintenance, testing, inspection, notification and
reporting requirements with respect to Hazardous
Materials.
(b) During the past five years RP has not been
subject to any administrative or judicial proceeding pursuant to,
or has not received any notice of any violation of, or claim
alleging liability under, any Environmental Laws with respect to
the RP Business and the RP Assets. No facts or
circumstances exist that would be likely to result in a claim,
citation or allegation against the RP for a violation of, or
alleging liability under any Environmental Law with respect to the
RP Business and the RP Assets.
(c)
There are no underground tanks of
any type (including tanks storing gasoline, diesel fuel, oil or
other petroleum products) or disposal sites for Hazardous Materials
or any other regulated waste, located on or under the immoveable
property subject to the RP Leases.
(d) Except in the ordinary course of business, and
in all cases in compliance with all Environmental Laws, RP has not
engaged any third party to handle, transport or dispose of
Hazardous Materials on its behalf with respect to the
RP Business and the RP Assets.
(a)
RP has properly prepared and duly
and timely filed or caused to be filed all Returns required to be
filed on or prior to the date hereof with respect to the
RP Business and the RP Assets. RP has not executed or
filed with any Government Entity any agreement extending the period
for assessment or collection of any Taxes.
(b) RP has paid all Taxes owed to any Government
Entity by RP for a period covered by such Returns, and all claims,
demands, assessments, judgments, costs and expenses connected with
the RP Business
phx-srv01\1470349v04
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and the RP Assets have been
duly and timely paid in full or RP has made adequate provisions for
the payment of all Taxes.
(c)
There are no liens for Taxes (other
than for current Taxes not yet due and payable) upon the
RP Assets.
(d) None of the RP Assets is property that is
required to be treated as owned by a person other than
RP.
(e)
To RP’s knowledge, there are,
and will hereafter be, no net Tax deficiencies of any kind assessed
against or relating to RP with respect to any taxable periods
ending on or before the Closing Date of a character or nature which
would result on liens or claims on any of the RP Assets or on
Pool Tech’s title thereto or use thereof, or would result in
any claim against Pool Tech.
3.20 Absence of Changes or Events. Except as
expressly provided for elsewhere herein, RP has not, with respect
to the RP Business or the RP Assets, during 2004:
(a) incurred any Indebtedness other than in the ordinary
course of business, consistent with past practices,
(b) permitted any of the RP Assets to be subjected to any
Lien, other than a Permitted Lien and the Liens listed on
Schedule 3.10(b) hereto, (c) sold, transferred or
o
