EXHIBIT 10.1
ASSET
PURCHASE AGREEMENT
(Joseph Uras
Monuments)
ASSET PURCHASE AGREEMENT made and executed
this 29th day of December, 2005, by and among Rock of Ages
Memorials, Inc. ., a Delaware corporation, with a principal
office located at 772 Graniteville Road, Graniteville, Vermont
05641 (the "Seller"); Joseph Uras Monuments, Inc.., a New
Jersey corporation; and 601 Route 35 LLC , a New Jersey
limited liability company (collectively "Buyer").
RECITALS:
Seller owns all of the assets and business of
Rock of Ages Memorials, Inc., d/b/a Joseph Uras Monuments, with
business locations at Middletown, Manalapan, and Toms River, New
Jersey; and Rock of Ages Memorials, Inc., d/b/a Clinton Monuments,
with a business location in Jamesburg, New Jersey (collectively,
the "Business"). The Buyer desires to purchase and assume, and the
Seller desires to sell and assign, certain real property, assets
and liabilities of the Seller upon the terms and subject to the
conditions of this agreement.
NOW, THEREFORE, in consideration of the
premises and the representations, warranties, covenants and
agreements contained herein, the parties hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF
ASSETS AND
ASSUMPTION OF LIABILITIES
1.1 Purchase of
Assets . Subject to the terms and conditions
of this agreement, the Seller agrees to sell, assign, transfer,
convey, and deliver to the Buyer on the Closing Date (as
hereinafter defined), and the Buyer agrees to purchase from the
Seller on the Closing Date, the assets and properties of the
Business listed on Exhibit 1.1 ; provided that the Assets
will not include the items of real and/or personal property
identified as "Excluded Assets" on Exhibit 1.1 (collectively
referred to as the "Excluded Assets").
1.2 Purchase of
Middletown Realty. Subject to the terms and
conditions of this agreement, Seller agrees to sell, assign,
transfer, convey and deliver to 601 Route 35 LLC on the Closing
Date, and 601 Route 35 LLC agrees to purchase from Seller on the
Closing Date, all of Seller's right, title and interest in and to
the real property located at 601 Route 35, Middletown, New Jersey
(the "Middletown Realty").
1.3 Liabilities and
Obligations Assumed . Buyer shall assume
those liabilities, obligations and undertakings of Seller
identified on Exhibit 1.3 (said liabilities identified on
Exhibit 1.3 being collectively referred to as the "Assumed
Liabilities"), and those liabilities that may have been incurred by
Seller in the ordinary course of the operation of the Businesses.
Seller hereby agrees to indemnify and hold Buyer harmless from and
against all costs, claims, actions, debts, liabilities, obligations
and undertakings of Seller except for the Assumed Liabilities and
those liabilities incurred in the ordinary course of business, if
any.
1.4 Bulk Sales
. Buyer and Seller each hereby waive compliance
by the other with any applicable provisions of the bulk sales laws
of the State of New Jersey or any other applicable jurisdiction,
and Seller agrees to indemnify and hold Buyer harmless from any
loss, cost or damage, including without limitation reasonable
attorneys fees and payments to any of Sellers' creditors, incurred
by Buyer because of Sellers' or Buyer's noncompliance with said
bulk sales laws.
1.5 Closing
. The closing of the purchase and sale hereunder
(the "Closing") shall take place at the offices of Martin J. Arbus,
Esq. at 10:00 a.m. local time, on December 29, 2005 in accordance
with the provisions of Article VI hereof after all of the
conditions set forth in this agreement shall be fulfilled or waived
in accordance with this agreement and applicable law, or at such
other time, date and/or place as the parties may agree. The date
and time at which the Closing actually occurs is referred to as the
"Closing Date".
1.6 Determination of and
Allocation of the Purchase Price .
(a) The aggregate purchase price for the Assets
(the "Purchase Price") shall be Eight Hundred Fifty Thousand
Dollars ($850,000.00) (the "Cash Purchase Price"), as adjusted at
the Closing Date in accordance with Exhibit 1.6(a) attached
hereto.
(b) The parties agree to report the transactions
contemplated by this agreement and to allocate the Purchase Price,
for tax and accounting purposes in accordance with the allocations
set forth on Exhibit 1.6(b) , pursuant to Section 1060 of
the Code, as amended, and the permanent and temporary Treasury
Regulations thereunder.
1.7 Payment of Purchase
Price and Delivery of Title to the Realty and Assets
. Upon the terms and subject to the conditions of
this agreement, at the Closing:
(a) Buyer shall deliver to Sellers on the Closing
Date by Buyer's certified check, its counsel's trust account check,
or by wire transfer pursuant to specific wire transfer instructions
provided to Buyer at least five (5) days prior to the Closing Date,
the amount of the Cash Purchase Price pursuant to Section 1.6(a),
and shall pay or assume or otherwise satisfy the Assumed
Liabilities (if any) pursuant to Section 1.6, by check or other
mutually acceptable means on the Closing Date, subject to any
withholdings or reserves from the Purchase Price as provided for in
this agreement and any Exhibits hereto.
- 2 -
(b) The Seller shall deliver to Buyer (i) bills
of sale and assignment and all other necessary instruments to
transfer title to the Assets and Assumed Liabilities; (ii) the
agreements listed in Article II; (iii) a special warranty deed
conveying insurable and marketable title to the Middletown Realty,
free and clear of all liens and encumbrances, except for permitted
encumbrances revealed by the title search; and (v) funds for the
payment of any taxes, if any, in respect to the sale, to the extent
Buyer has any liability for the collection thereof, to which the
transactions contemplated hereby may be subject under the laws of
the State of New Jersey.
(c) Transfer taxes associated with the sale,
assignment, transfer and conveyance of the Middletown Realty set
forth in paragraph 1.2 herein shall be paid by the Seller.
(d) State Sales tax associated with the sale and
transfer of vehicles and /or equipment pursuant to the terms of
this agreement shall be the sole responsibility of Buyer.
(e) Buyer agrees to provide a satisfactory
mechanism for the segregation and handling of all monies, refunds
or account receivables sent to Buyer and owed to Seller, and to
prompt remit same to Seller.
ARTICLE II
FURTHER AGREEMENTS
2.1 Authorized Retailer
Agreement . At the Closing, the Seller and Buyer
shall execute an Authorized Retailer Agreement substantially in the
form attached hereto as Exhibit 2.1 .
2.2 Termination of
Employment Agreement. At the Closing, the Employment Agreement
dated as of January 1, 2003 between Seller and Joseph Uras shall
terminate and be of no further force and effect and Seller and
Joseph Uras shall be released from their respective obligations
thereunder.
2.3 Seller hereby agrees
that, for a period of five (5) years from the date hereof, it will
not authorize any retailer, or open a new Rock of Ages owned retail
outlet within a ten (10) mile radius of Buyer's retail locations in
Middletown, Manalapan, Jamesburg and Toms River, New Jersey.
- 3 -
ARTICLE III
REPRESENTATIONS AND
WARRANTIES
3.1 General
Statement . The parties make the
representations and warranties set forth in this Article III. All
representations and warranties of the parties are made subject to
the exceptions, if any, which are noted in the respective Exhibits
and Schedules delivered by the parties to each other and accepted
by the receiving party concurrently herewith or in accordance with
Section 6.11.
3.2 Representations and
Warranties of the Buyer . Buyer makes the
following representations and warranties to the Sellers, in each
case with the intention that they may rely upon the same, and
covenants that the same are true and correct in all material
respects on the Closing Date.
(a) Organization and Qualification
. Buyer is a New Jersey corporation, duly
incorporated, validly existing and in good standing under the laws
of the State of New Jersey; has all requisite corporate power and
authority to own and lease its properties and to carry on the
business in which it is presently engaged; and is duly qualified
and in good standing to do business in each jurisdiction in which
the nature of the business conducted by it or the ownership or
leasing of its properties makes such qualification necessary,
except where the failure to be so qualified will not have,
individually or in the aggregate with any other failure to be so
qualified, a material adverse effect on Buyer.
601 Route 35 LLC is a New Jersey limited liability company, duly
formed, validly existing and in good standing under the laws of the
State of New Jersey; has all requisite power and authority to own
and lease its properties and to carry on the business in which it
is presently engaged; and is duly qualified and in good standing to
do business in each jurisdiction in which the nature of the
business conducted by it or the ownership or leasing of its
properties makes such qualification necessary, except where the
failure to be so qualified will not have, individually or in the
aggregate with any other failure to be so qualified, a material
adverse effect on 601 Route 35 LLC.
(b) Authority . Buyer
has the requisite corporate power and authority to execute and
deliver this agreement and the related agreements referred to
herein, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of
this agreement by Buyer and the consummation by Buyer of the
transactions contemplated hereby have been (or will have been by
the Closing Date) duly authorized by all necessary corporate action
and no other corporate proceedings on the part of Buyer are
necessary to authorize this agreement or to consummate the
transactions contemplated hereby (which Buyer shall cause to be
obtained prior to Closing). This agreement has been duly executed
and delivered by Buyer and, assuming the due authorization,
execution and delivery by the other parties hereto, constitutes the
legal, valid and binding obligation of Buyer, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors' rights generally, and to general equitable
principles.
- 4 -
(c) No Conflict and Consents
. The execution and delivery of this agreement by
Buyer does not, and the performance of this agreement by Buyer will
not, (i) conflict with or violate the Articles of Incorporation or
Bylaws of Buyer ; (ii) conflict with or violate any Laws applicable
to Buyer or any of Buyer's Subsidiaries or by which any of their
respective properties is bound or affected; or (iii) result in any
breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance
on any of the properties or assets of Buyer or any of Buyer's
Subsidiaries pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other
material instrument or obligation to which Buyer or any of Buyer's
Subsidiaries is a party or by which Buyer or any of Buyer's
Subsidiaries or any of their respective properties is bound or
affected, except for any such conflict or violations described in
clause (ii) or breaches or defaults described in clause (iii) that
would not have a Buyer Material Adverse Effect.
(d) Broker . No broker,
finder or investment banker is entitled to any brokerage, finder's
or other fee or commission in connection with the transactions
contemplated by this agreement based upon arrangements made by or
on behalf of Buyer.
(e) Sole Representations and Warranties
. The representations and warranties contained in
this Section 4.2 and in the Schedules and Exhibits attached hereto
and in any closing certificate delivered in connection herewith,
are the only representations and warranties made by Buyer in
connection with the transactions contemplated by this
agreement.
3.3 Representations and
Warranties of Seller . Seller makes the
following representations and warranties to Buyer with the
intention that it may rely upon the same, and covenant that the
same are true and correct and shall be true and correct at the
Closing Date:
(a) Organization and Qualification
. Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Delaware, has all requisite corporate power and authority to own
and lease its properties and to carry on the Business, and is duly
qualified and in good standing to do business in the State of New
Jersey.
(b) Authority . Seller
has the requisite corporate power and authority to execute and
deliver this agreement and the related agreements referred to
herein, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of
this agreement by Seller and the consummation by Seller of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action, and no other corporate proceedings on
the part of each of the Seller is necessary to authorize this
agreement or to consummate the transactions contemplated hereby.
This agreement has been duly executed and delivered by the Seller
and, assuming the due authorization, execution and delivery by the
other parties hereto, constitutes the legal, valid and binding
obligations of them respectively, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws affecting
creditors' rights generally, and to general equitable
principles.
- 5 -
(c) No Conflict and Consents
. The execution and delivery of this agreement by
Seller does not, and the performance of this agreement by Seller
will not, (i) conflict with or violate the Articles of
Incorporation, Bylaws, or other formation or governing documents of
Seller; (ii) conflict with or violate any Laws applicable to
Seller or by which any of its properties is bound or affected; or
(iii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a
lien or encumbrance on any of the properties or assets of Seller,
or upon the Middletown Realty pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other material instrument
