ASSET PURCHASE AGREEMENT

Exhibit 99.1

 

 

 

 

 

 

 

 

 

 

 

ASSET PURCHASE AGREEMENT

 

dated as of

 

April 21, 2007

 

between

 

THE STANDARD REGISTER COMPANY, an Ohio corporation

 

 

EXPED, LLC, an Ohio limited liability company

 

and

 

solely with respect to Sections 6.2, 6.3, and 8.2.2,

 

DOUBLEDAY HOLDINGS, LLC, an Ohio limited liability company

 

 

 

 

 

 

ASSET PURCHASE AGREEMENT

 

This ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into as of April 21, 2007, by and among EXPED, LLC, an Ohio limited liability company (“Exped”), THE STANDARD REGISTER COMPANY, an Ohio corporation (“Standard”), and solely with respect to Sections 6.2, 6.3, and 8.2.2, DOUBLEDAY HOLDINGS, LLC, an Ohio limited liability company (“DoubleDay”), under the following circumstances:

A.

Standard currently operates the Business (as defined below).

B.

Exped is a newly formed Ohio limited liability company, and DoubleDay is the owner of all of the issued and outstanding ownership interests in Exped.

C.

Subject to the terms and conditions provided in this Agreement, Exped shall purchase and Standard shall sell certain properties and assets used in the Business, subject to scheduled liabilities, all as provided herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants contained herein and intending to be legally bound, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

1.1

Certain Terms.  For all purposes of this Agreement, except as otherwise expressly provided, the words “include,” “includes” and “including” shall be deemed in each case to be followed by the words “without limitation”.

1.2

Definitions.  As used in this Agreement and the Exhibits and Schedules delivered pursuant to this Agreement, the following terms have the meanings set forth below:

1.2.1

“Action” means any action, complaint, petition, investigation, suit, audit, arbitration, litigation or other proceeding, whether civil, administrative, criminal, or investigative, at law or in equity or otherwise, before or by any arbitrator or Governmental Entity.

1.2.2

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such Person.  A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities or other ownership interests, by contract or otherwise.

1.2.3

“Agreement” means this Agreement, including (unless the context otherwise requires) all Exhibits and Schedules attached hereto or incorporated herein by reference, as the same may be amended, modified, or supplemented from time to time in accordance with the terms hereof.

 

 

 

1.2.4

“Assets” means all right, title and interest of Standard in, to and under the following personal properties and assets (whether tangible or intangible and wherever located) owned or leased by Standard and used in connection with the Business, as the same shall exist as of the Closing:

(a) the machinery, equipment (including computer and telecommunications equipment), certain furniture and other tangible or fixed assets listed or described on Schedule 1.2.4(a) (the “Equipment”);

(b) the finished goods, work-in-process, raw materials and other inventory relating to digital pens and digital paper items listed or described on Schedule 1.2.4(b) (the “Inventory”);

(c) the prepaid license fees of Standard related to the Business and listed or described on Schedule 1.2.4(c);

(d) the Contracts to which Standard is a party or by which it or any of its properties or assets is bound or affected and that are listed on Schedule 1.2.4(d) (the “Assumed Contracts”);

(e) the rights in the Intellectual Property Assets defined by Section 1.2.19, and listed or described on Schedule 1.2.19, subject to the limitations of Section 6.5 below;

(f) the advertising, marketing, sales and promotional materials of Standard related to the Business (including any catalog or brochure) listed on Schedule 1.2.4(f) (“Materials”) subject to the limitations of Section 6.5 below; and

(g) all goodwill of Standard related to the Business.

1.2.5

“Assumed Liabilities” means, subject to the indemnification obligations under Section 8.2.1, only those Liabilities of Standard that are listed on Schedule 1.2.5 and, as to the Assumed Contracts, shall only include the obligations thereunder that accrue and relate to the period after the Closing Date.

1.2.6

“ Business ” means the business of developing, operating, licensing, marketing, selling, providing and supporting digital pen and paper solutions, products and services, including, but not limited to, digital pens, related software, forms printed with Anoto Dot Pattern, and design and definition of Anoto Dot Pattern forms.

1.2.7

“Code” means the Internal Revenue Code of 1986, as amended, including the rules and regulations promulgated thereunder.

1.2.8

“Company Transaction Documents” means this Agreement and any other agreement, instrument, document or certificate executed and delivered by Standard pursuant to this Agreement or in connection with the transactions contemplated hereby, as the same may be modified, supplemented or amended from time to time.

 

 

 

1.2.9

“Contract” means any loan, note, bond, mortgage, indenture, lease, agreement, contract, instrument, concession, guarantee (or similar agreement or instrument) (whether in oral or written form).

1.2.10

“Exped Transaction Documents” means this Agreement and any other agreement, instrument, document or certificate executed and delivered by Exped pursuant to this Agreement or in connection with the transactions contemplated hereby, as the same may be modified, supplemented or amended from time to time.

1.2.11

“ Environmental Law” means any federal, state, local, foreign, or other law, statute, rule, ordinance, order or requirement relating to public health, safety, pollution, contamination or the environment, including relating to: (i) the release (or threatened release), discharge, emission, injection, spillage, leakage or disposal to ambient air, land surface (or subsurface strata) or surface or ground water of Hazardous Materials, (ii) to the withdrawal or use of ground or surface water, (iii) the use, manufacture, processing, generation, distribution, transport, storage, possession, handling or disposal of Hazardous Materials, (iv) the exposure to Hazardous Materials, (v) air, water, or noise pollution, (vi) soil or water contamination, (vii) the protection of wildlife, marine sanctuaries and wetlands, (viii) the protection of natural resources, (ix) storage tanks, vessels, and related equipment, (x) abandoned or discarded barrels, containers, and other closed receptacles or (xi) the health or safety of employees and includes the federal Comprehensive Environmental Response Compensation and Liability Act, the federal Clean Air Act, the federal Water Pollution Control Act, the federal Solid Waste Disposal Act and the federal Insecticide, Fungicide and Rodenticide Act.

1.2 .12

“Environmental Permit” means any permit, license, approval, filing, consent or authorization required under, or in connection with, any Environmental Law and includes any orders, consent orders or agreements issued by or entered into with a Governmental Entity.

1.2. 13

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

1.2.14 “Excluded Liabilities” means all Liabilities of Standard other than the Assumed Liabilities, including, without limitation, all warranty/make good work arising out of products manufactured, sold, or delivered by or on behalf of Standard prior to the Closing, including, without limitation, the matter described on Section 4.22 of the Standard Disclosure Schedule.

1.2.15

“ Expedata Personnel” means the employees set forth on Standard Disclosure Schedule 4.21.

1.2.16

“Governmental Entity” means any government (or any governmental or political subdivision thereof) or any agency, public or regulatory authority, instrumentality, ministry, bureau, board, arbitrator, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government, whether foreign or domestic and whether national, federal, tribal, provincial, state, regional, local, municipal, or other.

 

 

 

1.2.17

“Hazardous Material” means (a) any hazardous, toxic, controlled, prohibited, or regulated materials, substances, or wastes under any Environmental Law, including, containing or constituting petroleum (its derivative, by-products, or other hydrocarbons) or petroleum products, solvents (including chlorinated solvents), nuclear or radioactive materials, asbestos in any form that is or could become friable, radon, lead-based paint, urea formaldehyde foam insulation or polychlorinated biphenyls, and other reactive, corrosive, carcinogenic, flammable or polluting materials, substances or wastes, and (b) any other chemical, material, substance or waste that is now defined as, or included in the definition of, “hazardous substance(s),” “hazardous waste(s),” “hazardous material(s),” “extremely hazardous waste(s),” “restricted hazardous waste(s),” “toxic substance(s),” “toxic pollutant(s)” or words of similar import under or pursuant to any Environmental Law.

1.2.18

“Income Tax” means any federal, state, local, foreign, or other income, alternative or add-on minimum tax, gross income, gross receipts, franchise, or profits tax, including estimated taxes relating to any of the foregoing, or other similar tax or other like assessment, levy, or charge of similar kind whatsoever, excluding any Other Tax, together with any interest and any penalty, addition to tax or additional amount imposed by any Taxing Authority responsible for the imposition of any such Tax (domestic or foreign).  

1.2.19

“Intellectual Property Assets” means both United States and foreign intellectual property rights in: (i) all trademarks, trademark registrations, trademark applications, service marks, service mark registrations, service mark applications, domain names, trade names, brand names, trade dress, logos (or other identifying marks or symbols) and legal or other names (or any similar derivation or variation thereof), together with all renewals, translations, adoptions, derivatives and combinations thereof, all trademark or service mark interests accruing by reason of international trademark conventions, and including all goodwill associated therewith used in the Business, and all rights to sue for, settle, or release any past, present, or future infringement thereof or unfair competition involving the same, (collectively, the “Trademarks”),  (ii) all patents, patent applications and patent disclosures, together with all continuations, continuations-in-part, divisionals, revisions, extensions, substitutions, reissues and reexaminations thereof and the inventions disclosed therein, whether patentable or unpatentable and whether or not reduced to practice used in the Business and all rights to sue for, settle, or release any past, present, or future infringement thereof (collectively, the “Patents”); (iii) copyrights, copyright registrations and applications for the registration of copyrights, all copyright interests accruing by reason of international copyright conventions, all moral rights pertaining thereto, all design registrations, mask works used in the Business, and all rights to sue for, settle, or release any past, present, or future infringement thereof (collectively, the “Copyrights”), and (iv) all know how, trade secrets, technology, drawings, proprietary information and rights, and other industrial or intellectual property rights, all computer software, source code, and software tools, unpatentable inventions and all other proprietary intellectual rights, processes, ideas, concepts, discoveries, improvements, data formats, reports, and formulae used in the Business and all rights to sue for, settle, or release any past, present, or future infringement thereof (collectively, the “Other Intellectual Properties”).  

As of the Closing Date, the Intellectual Property Assets consists of the Trademarks, Patents, Copyrights, and Other Intellectual Properties identified and listed on Schedule 1.2.19.

 

 

 

1.2.20

“IRS” means the United States Internal Revenue Service or any successor entity thereto.

1.2.21

“Knowledge,” “Known to” or any similar phrase means, with respect to any matter in question, that, with regard to Standard, that none of the officers or employees of Standard set forth in Schedule 1.2.21 has actual knowledge of such fact or other matter.  

1.2.22

“Law” or “Laws” means any law, statute, order, decree, consent decree, judgment, rule, regulation, ordinance or other pronouncement having the effect of law whether in the United States  or any foreign country, or any domestic or foreign state, province, principality, territory, county, city or other political subdivision or of any Governmental Entity.

1.2.23

“Liabilities” means all indebtedness, obligations and other liabilities of a Person, whether absolute, accrued, contingent (or based upon any contingency), known or unknown, direct or indirect, fixed or otherwise, or whether due or to become due, including any such indebtedness, obligations, or other obligations of another Person which are guaranteed or in effect guaranteed by such Person.

1.2.24

“Liens” means any mortgage, deed of trust, pledge, assignment, security interest, hypothecation, lease, lien (including statutory liens), easement, license, covenant, condition, adverse claim, levy, charge, option, equity, restriction, priority, preference, deposit arrangement, reservation, or other encumbrance of any kind or nature, including any conditional sale contract or other title retention contract (including any lease which is or should be capitalized under generally accepted accounting principles) or other contract which may create, cause or give rise to any of the foregoing, except for any restrictions on transfer generally arising under any applicable federal or state securities law.

1.2.25

“Material Adverse Effect” means, with respect to Standard, any event, circumstance, change, condition, development or occurrence, which either individually or in the aggregate has or could have a material adverse change upon, or which results or could result in a material adverse change, taken as whole, in the Business, results of operations, condition (financial or other), properties, value, assets or Liabilities or prospects of the Business or the Assets, except where any such change is due to a general economic downturn in the economy or the industry of the Business.  

1.2.26

“Order” means any decree, judgment, ruling, arbitration award, assessment, writ, injunction or similar order of any Governmental Entity (in each such case whether preliminary, temporary, permanent, or final).

1.2.27

“Other Tax” means any federal, state, local, foreign or other sales, use, ad valorem, business license, withholding, payroll, employment, social security, unemployment, excise, stamp, transfer, recording, occupation, premium, property, unclaimed property, value added, custom duty, severance, windfall profit or license tax, governmental fee or other similar assessment, levy, or charge, together with any interest and any penalty, addition to tax or additional amount imposed by any Taxing Authority responsible for the imposition of any such Tax (domestic or foreign).

 

 

 

1.2.28

“Permit” means any governmental license, permit, approval, consent, filing, exemption, franchise or authorization required under, or in connection with, any Law, and includes any Environmental Permit.

1.2.29

“Person” means any natural person, corporation, general partnership, limited partnership, limited liability company or partnership, proprietorship, other business organization, trust, union, association or Governmental Entity.

1.2.30

“Proceeding” means any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any court or other Governmental Entity or referee, trustee, arbitrator or mediator.

1.2.31

“ Records” means all property records, production records, engineering records, purchasing and sales records, personnel and payroll records, accounting, tax and financial records, customer, supplier and vendor lists and records, mailing lists, drawings, schematics, process flow charts, and other records and files (whether in written, electronic or other form) of Standard related to the Business or the Assets.

1.2.32

“Standard Disclosure Schedule” means the Schedules delivered to Exped by, or on behalf of, Standard (concurrently with entering into this Agreement), containing all lists, descriptions, exceptions, and other information and materials that are required to be included therein in connection with the representations and warranties made by Standard in ARTICLE 4 or that are otherwise required to be included therein.

1.2.33

“Standard Plan” means (a) each of the “employee benefit plans” (as such term is defined in Section 3(3) of ERISA) of which Standard or any of its Affiliates is or ever was a sponsor or participating employer or as to which Standard or any of its Affiliates makes or has made contributions or is required to make contributions and (b) any other employee compensation, benefit or welfare plan, agreement, policy, program, practice or other arrangement of Standard or any of its Affiliates (whether written or oral) providing for health, life, vision, dental or other insurance coverage or benefits (including self-insured arrangements), workers’ compensation, disability or accident benefits (including insurance benefits), supplemental unemployment benefits, severance pay or benefits, vacation pay or benefits, dependent care assistance, educational reimbursement, retirement or pension benefits, or other fringe benefits or for profit sharing, deferred compensation, savings, thrift, bonuses, stock options, stock appreciation rights, stock purchase, phantom stock or incentive compensation or post-retirement insurance, compensation or benefits, or for continued employment.

1.2.34

“Tax” or “Taxes” means Income Taxes and/or Other Taxes, as the context requires.

1.2.35

“Tax Laws” means the Code and any federal, state, county, local or foreign law relating to Taxes and any regulations or official administrative pronouncements promulgated thereunder.

1.2.36

“Tax Returns” means any return, report, information return, schedule, certificate, statement or other document (including any related or supporting information) related

 

 

 

to the Business or the Assets filed or required to be filed with, or, where none is required to be filed with a Taxing Authority, the statement or other document issued by, a Taxing Authority in connection with any Tax.

 

1.2.37

“Taxing Authority” means any Governmental Entity having or purporting to exercise jurisdiction with respect to any Tax.

1.2.38

“Transaction Documents” means collectively this Agreement and all of the other agreements, instruments and documents executed and delivered in connection with the transactions contemplated hereby.

1.3

Terms Used Within Sections.  Each of the following terms is defined in the Section set forth opposite such term:

 

 

ARTICLE II

SALE OF ASSETS

 

2.1

Sale of Assets.  Subject to the terms and conditions of this Agreement, Standard shall transfer and assign the Assets to Exped pursuant to the Bill of Sale, and Exped shall assume the Assumed Liabilities pursuant to the Assignment and Assumption Agreement.

2.2

Payment of Purchase Price.   In consideration for the Assets, Exped shall assume the Assumed Liabilities and shall pay Standard $2,500,000 in cash or immediately available funds concurrently with the execution and delivery of this Agreement and the documents contemplated hereby.

 

 

 

ARTICLE III

CLOSING

3.1

Closing.  The closing of the transactions contemplated hereby (the “Closing”) shall take place at the offices of Chernesky, Heyman, & Kress, P.L.L., Suite 1100, 10 Courthouse Plaza SW, Dayton, Ohio 45402 as of the date hereof (the "Closing Date").

3.2

Closing Documents.   Simultaneously with the execution and delivery of this Agreement, the parties hereto shall deliver certain documents effective as of the Closing Date, including but not limited to the following:

3.2.1

A Bill of Sale executed by Standard in the form of Exhibit 3.2.1 attached hereto (the "Bill of Sale");

3.2.2

An Assignment and Assumption Agreement executed by Standard and Exped, in the form of Exhibit 3.2.2 attached hereto (the "Assignment and Assumption Agreement");

3.2.3

A Transition Services Agreement executed by Standard and Exped, in the form of Exhibit 3.2.3 attached hereto;

3.2.4

A Print Services Agreement executed by Standard and Exped, in the form of Exhibit 3.2.4 attached hereto (the "Print Services Agreement");

3.2.5

A Channel Partner Agreement executed by Standard and Exped, in the form of Exhibit 3.2.5 attached hereto (the "Channel Partner Agreement");

3.2.6

A Unique Pattern Print Assistance Agreement executed by Standard and Exped, in the form of Exhibit 3.2.6 attached hereto;

3.2.7

A Domain Names and Website Assignment executed by Standard and Exped, in the form of Exhibit 3.2.7 attached hereto;

3.2.8

An Assignment of Intellectual Property executed by Standard and Exped, in the form of Exhibit 3.2.8 attached hereto; and

3.2.9

A Copyright Assignment executed by Standard and Exped, in the form of Exhibit 3.2.9 attached hereto.

 

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF STANDARD

Standard hereby represents and warrants to Exped that:

4.1

 Corporate Existence and Power of Standard.  Standard is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Ohio, and has all corporate powers and all Permits of any Governmental Entity required to carry on the

 

 

 

Business as now conducted or proposed to be conducted.  Standard is duly licensed or qualified to do business as a foreign corporation and is in good standing in all fifty states of the United States of America.  

4.2

Standard Subsidiaries. The Business is operated as a business unit of Standard.  Standard has no subsidiaries, affiliates or other entities (or interests therein) that are engaged in the Business.

4.3

Corporate Authority.  Standard has the requisite corporate power and authority to execute and deliver the Company Transaction Documents and to consummate the transactions contemplated thereby. The execution and delivery by Standard of the Company Transaction Documents and the consummation by Standard of the transactions contemplated thereby have been duly authorized by all necessary corporate action. This Agreement has been, and each of the other Company Transactions Documents, upon its execution and delivery, will be, duly executed and delivered by Standard and constitutes or will constitute a legal, valid and binding agreement of Standard, enforceable against Standard in accordance with its terms.

4.4

Permits.  Standard has obtained and holds, and is in compliance with the terms of, all Permits that are necessary or desirable for the operation of the Business or for the ownership, or operation or use of the Assets.  Section 4.4 of the Standard Disclosure Schedule contains a true, complete and correct list of all Permits that Standard currently holds for the operation of the Business or for the ownership, operation or use of the Assets, and all of such Permits are valid and in full force and effect.  With respect to the Permits set forth in Section 4.4 of the Standard Disclosure Schedules, no action or proceeding is pending or, to the Knowledge of Standard, threatened, that could reasonably be expected to have a Material Adverse Effect on the Business or the Assets, and Standard has not received any notice of the proposed revocation, termination, cancellation or withdrawal of any of such Permits.  Except as disclosed in Section 4.4 of the Standard Disclosure Schedule, the consummation of the transactions contemplated hereby will not effect the validity of, or result in any modification to, or any revocation, termination, cancellation or withdrawal of, any of such Permits and will not require any consent or approval of any Person under, or in connection with, any of such Permits.  

4.5

Non-Contravention.  Except as set forth in Section 4.5 of the Standard Disclosure Schedule, the execution and delivery of the Company Transaction Documents do not, and the consummation of the transactions contemplated thereby and compliance with the provisions thereof do not and will not, (a) result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a benefit under, or require the consent of or notice to any Person that is a party to, any Contract relating to the Business to which Standard is a party or by which it or any of its assets is bound or affected, or result in the creation of any Lien upon any of the Assets, (b) conflict with or result in any violation of any provision of the Articles of Incorporation or the Code of Regulations of Standard, or (c) conflict with or violate any Law, rule, regulation, judgment, injunction, order or decree applicable to Standard or any of its properties or assets.  Further agreements with regard to consents are set forth on Exhibit 4.5 to this Agreement.

 

 

 

4.6

Government Approvals and Consents.  Except as set forth in Section 4.6 of the Standard Disclosure Schedule, no filing or registration with, notice to or authorization, consent or approval of, any Governmental Entity is required by or with respect to Standard in connection with the execution and delivery of any of the Company Transaction Documents by Standard or is necessary for the consummation of the transactions contemplated thereby.

4.7

Financial Statements.  Section 4.7 of the Standard Disclosure Schedule sets forth Standard’s internally prepared balance sheet for the Business as of December 31, 2006 and the related statement of income for the twelve-month periods ending December 31, 2006 (the “Standard Year-End Financial Statements”) and Standard’s internally prepared  balance sheet for the Business as of April 1, 2007 and related statement of income for the period commencing January 1, 2007 and ending March 31, 2007 (the “Standard Interim Financial Statements”).  The Standard Year-End Financial Statements and the Standard Interim Financial Statements have been prepared in accordance with generally accepted accounting principles consistently applied, other than year-end adjustments in the Standard Interim Financial Statements.  The Standard Year-End Financial Statements and Standard Interim Financial Statements (together referred to as the “Standard Financial Statements”) accurately and fairly present the financial condition and operating results of and for the Business as of the dates and during the periods indicated therein and include certain overhead-related expenses that are allocated to the Business by Standard.  

4.8

Absence of Undisclosed Liabilities. There are no material liabilities of Standard related to the Business of any kind, other than:

4.8.1

liabilities provided for in the Standard Interim Financial Statements;

4.8.2

liabilities incurred or arising in the ordinary course of business since December 31, 2006 (for this purpose, a liability incurred or arising out of a tort, a breach of contract or a violation of any Law shall not in any event be deemed a liability incurred or arising in the ordinary course of business);

4.8.3

liabilities disclosed in Section 4.8 of the Standard Disclosure Schedule; and

4.8.4

the Assumed Liabilities.

Exped expressly acknowledges that there are certain rights and assets (such as certain “off-the-shelf” software licenses) which are not included in either the Assets or the Assumed Liabilities and will need to be individually purchased by Exped in order to operate the Business in the same manner as operated by Standard prior to the Closing Date.

4.9

Absence of Certain Changes or Events.   Except as disclosed in Section 4.9 of the Standard Disclosure Schedule or except as contemplated hereby, since  December 31, 2006, Standard has conducted the Business in the ordinary and usual course consistent with past practices and, without limitation, there has not been, with respect to the Business:

4.9.1

any event, occurrence or development (whether or not covered by insurance) which has had, or which would reasonably be expected to have, a Material Adverse Effect;

 

 

 

4.9.2

any making of any loan, advance or capital contributions to or any material change in any accounting principle or accounting practice by Standard affecting the Standard Financial Statements except as otherwise set forth in this Agreement;

4.9.3

any (i) Contract entered into with any Expedata Personnel or any of their family members or Affiliates; (ii) increase in the rate or terms of compensation payable or to become payable by Standard to, or any increase in the rate or terms of any bonus, pension or other employee benefit covering, any Expedata Personnel, except increases in the ordinary and usual course of business, which individually or in the aggregate are not material; or (iii) grant of any severance, retention, bonus or termination pay to any Expedata Personnel;

4.9.4

any termination, suspension, loss or material disruption of the relationship of Standard with any of the Business’s customers, suppliers or vendors which has had, or would reasonably be expected to have, a Material Adverse Effect;

4.9.5

any material change in the levels of Inventory compared to historical practice or any material delay in the payment of accounts payable; and

4.9.6

any capital expenditure(s) in excess of $10,000 individually.

4.10

Standard Litigation.  Except as disclosed in Section 4.10 of the Standard Disclosure Schedule, there is no Action related to or affecting the Business or the Assets that is (i) pending or, (ii) to the Knowledge of Standard, threatened against or affecting Standard or any of its properties (including employee benefit claims or workers compensation claims) before any Governmental Entity (including for this purpose any arbitration tribunal) or, to the Knowledge of Standard, any basis therefor.  Except as disclosed in Section 4.10 of the Standard Disclosure Schedule, Standard is not subject to any order, judgment, injunction or decree of any Governmental Entity (including for this purpose any arbitration tribunal) related to the Business or the Assets.   Except as disclosed in Section 4.10 of the Standard Disclosure Schedule, there is no Action pending or, to the Knowledge of Standard, threatened against Standard with respect to product liability claims related to the Business, nor have there ever been any such Actions.  Schedule 4.10 sets forth all workers compensation claims that have been made related to the Business since December 31, 2005.

4.11

Contracts.

4.11.1

Schedule of Contracts. Disclosed in Section 4.11.1 of the Standard Disclosure Schedule is a true and complete list of material Contracts to which Standard is a party related to the Business or by which the Assets or the Business are bound or affected.

4.11.2

Contracts with Affiliates.  Except as disclosed in Section 4.11.2 of the Standard Disclosure Schedule, there are no Contracts between Standard on the one hand and any Affiliate of Standard on the other that relate to or affect the Business or the Assets.  

4.11.3

Validity of Contracts.   Subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and to general principles of equity, except as disclosed in Section 4.11.3 of the Standard Disclosure Schedule, each Contract required to be disclosed pursuant to this Section is a valid and binding

 

 

 

agreement of Standard, is enforceable in accordance with its terms and is in full force and effect, provided that any party (other than Standard) to any such Contract possessed all requisite power and authority to execute and deliver such Contract and that the execution was duly and validly authorized by such party.  Neither Standard nor, to the Knowledge of Standard, any other party thereto is in default (or alleged default) or breach (or alleged breach) under the terms of any such Contract.  Standard has not received any notice of termination or cancellation of any such Contract.  

 

4.11.4

Copies.   True and complete copies of all Contracts required to be so listed pursuant to this Section 4.11, including all amendments thereto, have been made available by Standard to Exped.  

4.12

Compliance with Laws and Court Orders.  Except as disclosed in Section 4.12 of the Standard Disclosure Schedule, Standard has Conducted the Business in accordance with, and Standard is otherwise in compliance with, all Laws applicable to the Business, except for non-compliance that would not have a Material Adverse Effect.  

4.13

Taxes.   Except as shown in Section 4.13 of the Standard Di