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Exhibit 10
(ee)
MEMBERSHIP INTEREST
PURCHASE AGREEMENT
THIS AGREEMENT, dated as of
January 10, 2007, is by and among Leonard H. Lavin, not
individually, but solely as Co-Trustee of the Leonard H. Lavin
Trust u/a/d 12/18/87 (“ Purchaser ”),
Alberto-Culver USA, Inc., a Delaware corporation (“
Seller ”), and Eighteen, LLC, an Oregon limited
liability company (“ Company ”).
WITNESSETH
:
WHEREAS, Seller is the record
and beneficial owner of all of the issued and outstanding units of
membership interests in the Company;
WHEREAS, Purchaser desires to
purchase and Seller desires to sell all of Seller’s units of
membership interests in the Company (the “ Units
”), free and clear of all liens, on the terms and subject to
the conditions set forth in this Agreement.
NOW, THEREFORE, in
consideration of the representations, warranties, agreements and
indemnities hereinafter set forth, and intending to be legally
bound, Purchaser, Seller and the Company (collectively, the “
Parties ”) hereby agree as follows:
1. Purchase and Sale of Units
.
1.1 Sale and Transfer of
Units . Subject to the terms and conditions of this Agreement,
on the Closing Date (as defined in Section 2.1 ),
Seller will sell, convey, transfer, and deliver to Purchaser all of
Seller’s right, title, and interest in and to the Units and
deliver to Purchaser an executed assignment of units of its entire
membership interest in the form of Exhibit A attached hereto
(the “ Assignment ”).
1.2 Purchase Price .
In consideration for the sale of the Units to Purchaser, Purchaser
shall pay to Seller, at the time and in the manner set forth in
Section 1.3 , Twenty-Five Million Dollars
($25,000,000.00) (the “ Purchase Price ”) plus
any sales tax or Transaction Tax (as defined in
Section 3.1(d)(ii) below), if any, assessed on the assignment
of the Units.
1.3 Payment of Purchase
Price . On the Closing Date (as defined in
Section 2.1 ), Purchaser shall pay and deliver the
Purchase Price to Seller by wire transfer of immediately available
federal funds to a bank account designated in writing by Seller not
less than 2 business days prior to the Closing Date.
2. Closing .
2.1 Closing Date . The
closing of the transactions contemplated hereby (the “
Closing ”) shall take place on January 10, 2007,
or such other date as shall be agreed on by the Parties (such date
or such other agreed-on date being herein called the “
Closing Date ”).
2.2 Purchaser’s
Conditions to Closing . The obligation of the Purchaser to
acquire the Units, unless specifically waived in writing by the
Purchaser, is subject to the satisfaction or fulfillment of all of
the following conditions on or prior to the Closing
Date:
(a) Each representation and
warranty made by Seller and the Company herein shall have been true
and correct in all respects when made and shall be true and correct
as if originally made on the Closing Date.
(b) All necessary consents
from or notices to any governmental authority or other third party,
with respect to the sale of the Units, shall have been
obtained.
(c) Seller and the Company
shall have performed and complied in all material respects with all
of their covenants hereunder.
(d) Purchaser shall have been
satisfied in its sole and absolute discretion with the results of
its inspection of the Aircraft, in accordance with Section
4.3 .
(e) All obligations of Seller
and the Company to be performed or delivered hereunder on or prior
to the Closing Date (including all deliveries of Seller and the
Company required by Section 2.4(a) hereof at the
Closing) shall have been performed and delivered.
2.3 Seller’s
Conditions to Closing . The obligation of Seller to sell the
Units, unless specifically waived in writing by the Seller, is
subject to the satisfaction or fulfillment of all of the following
conditions on or prior to the Closing Date:
(a) Each representation and
warranty made by Purchaser shall have been true and correct in all
respects when made and shall be true and correct as if originally
made on the Closing Date.
(b) Signature Flight Support
Corporation (“ Lessor ”) shall have consented to
the assignment by Alberto-Culver Company (“ ACC
”) to Purchaser of the “Full Hangar Lease” dated
July 27, 1989 by and between ACC and Pal-Waukee Aviation,
Inc., as amended by First Amendment thereto dated
September 15, 1999, and the Second Amendment thereto dated
February 1, 2003 by and between ACC and Lessor (f/k/a
Pal-Waukee Aviation, Inc., d/b/a Priester Aviation), and the
Sublease Agreement between ACC and MacLean-Fogg Company dated
July 12, 1991, as amended on July 31,
1996, July 1, 1997, January 31, 2000 and
February 1, 2003; and Purchaser, as assignee, shall have
assumed all of ACC’s obligations under the Full Hangar Lease
and the Sublease by executing and delivering to Lessor the form of
Full Hangar Lease assignment as approved by Lessor.
(c) All obligations of
Purchaser to be performed or delivered hereunder on or prior to the
Closing Date (including all deliveries of Purchaser required by
Section 2.4(b) hereof at the Closing) shall have been
performed and delivered.
2.4 Closing Deliveries
.
(a) At the Closing, Seller
and the Company will deliver to Purchaser:
(i) a duly executed
Assignment;
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(ii) an assignment of the
Full Hangar Lease and the Sublease, as described in
Section 2.3(b) , duly executed by ACC and
Lessor;
(iii) duly executed letters
of resignation from each of the officers of the Company;
(iv) a duly executed
termination of the Lease of the Aircraft between Seller and the
Company;
(v) a secretary’s
certificate, in form and substance reasonably satisfactory to
Purchaser, certifying copies of the Company’s articles of
organization and operating agreement, as amended to the Closing
Date;
(vi) all minute books,
records, Company Contracts (as defined in
Section 3.l(g) ), permits, business, financial and
other records of the Company, including manuals, logbooks, wiring
diagrams, documents and records relating to the Aircraft (all such
records and items that are located at the leased premises
(described in Section 2.3(b) ) or on the Aircraft shall
remain in place); and
(vii) such other instruments
or documents as Purchaser and its counsel may reasonably request to
vest in Purchaser all of Seller’s right, title and interest
in and to the Units or to effect the consummation of the
transactions contemplated by this Agreement.
(b) Closing Deliveries of
Purchaser . At the Closing, Purchaser will deliver to
Seller:
(i) the Purchase Price as
provided in Section 1.2 ;
(ii) an assignment of the
Full Hangar Lease and the Sublease, as described in
Section 2.3(b) , duly executed by Purchaser;
and
(iii) such other instruments
or documents as Seller and its counsel may reasonably request to
effect the consummation of the transactions contemplated by this
Agreement.
2.5 Cape Town
Convention . Seller and Purchaser agree to follow the
Convention on International Interests and Mobile Equipment and the
Protocol on Matters Specific to Aircraft Objects (the “
Cape Town Convention ”) effective March 1, 2006,
that establishes an International Registry (“
International Registry ”) for the registration of
certain interests in aircraft. Seller and Purchaser agree that they
shall register the sale (as defined in the Cape Town Convention) in
the International Registry on the Closing Date, if required. Seller
and Purchaser will each be responsible for their respective costs
of such registration.
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3. Representations and Warranties
.
3.1 Representations and
Warranties of Seller . Seller hereby represents and warrants to
Purchaser, as of the date hereof and as of the Closing Date, as
follows:
(a) Organization, Good
Standing, Power and Authority, etc .
(i) The Company is a limited
liability company duly organized, validly existing and in good
standing under the laws of the State of Oregon. The Company is
qualified and authorized to do business as a foreign limited
liability company in Montana, North Carolina, Ohio, Texas, Hawaii,
Colorado and Nevada. The Company has not elected to qualify as a
limited liability company in states where it believes its lack of
qualification is not a material impediment to its ability to avail
itself of rights and remedies available to foreign entities under
applicable state law. In Oregon and the states listed above where
it is qualified, the Company has all requisite power and authority
to own, lease, and operate its properties and to carry on its
business as now being conducted. The Company does not own any
interest in or control, directly or indirectly, any other
corporation, joint venture, or other entity.
(ii) Each of the Company and
Seller has the right, power, and legal capacity to enter into and
perform its obligations under this Agreement. This Agreement has
been duly executed by Seller and the Company and constitutes the
binding obligation of Seller and the Company, enforceable in
accordance with its terms. The execution, delivery, and performance
of this Agreement and the consummation of the transactions
contemplated hereby by Seller and the Company will not
(i) violate any provision of law applicable to Seller or the
Company; or (ii) conflict with or result in the breach of any
provision of or the termination of or constitute a default under
any corporate material instrument or agreement; and the delivery of
the Units pursuant to this Agreement will transfer to Purchaser
legal and valid title thereto.
(b) Outstanding
Interests . No membership interest or unit of membership
interest in the Company is held by any person other than Seller.
Seller owns all the Units free and clear of all restrictions, other
than those imposed by federal or state securities law.
(c) Financial
Statements . The following financial statements of the Company
(collectively, the “ Financial Statements ”) are
attached as Exhibit B and are incorporated herein by
reference: the unaudited balance sheet and income statement as at
and for the 3-month period ended December 31, 2006 (the
“ Balance Sheet Date ”). The Financial
Statements, except as disclosed by this Agreement, correctly,
accurately and completely present the financial condition and
results of operations of the Company as of the date and for the
period indicated and have been prepared from various records of the
Company and its affiliates. The Financial Statements make full and
adequate provision for all fixed or contingent obligations,
liabilities, and commitments of the Company as of the Balance Sheet
Date; and there were no fixed or contingent obligations,
liabilities, or commitments of the Company as of such date which
are not recorded or disclosed in the Financial Statements. All
debts, liabilities, and obligations incurred by the Company after
the Balance Sheet Date were incurred in the ordinary course of
business, are usual and normal in amount both individually and in
the aggregate. Since the Balance Sheet Date, there has been no
material adverse change in the assets, properties, operations or
condition (financial or otherwise) of the Company, and Seller has
no knowledge of any such change that is threatened.
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(d) Tax Matters
.
(i) Since 1999, the Company,
as a single member limited liability company, has not filed any tax
returns with any federal, state, or local governmental authorities
(for purposes of this paragraph, the Company does not consider its
Texas franchise tax filing or its state qualification filings to be
“tax returns”).
(ii) All Taxes owed by the
Company and/or owed by Seller with respect to the Company for the
period prior to the Closing Date have been paid except where the
failure to do so would not result in a material adverse effect to
the Company. “ Taxes ” means all taxes, duties,
fees or assessments and any interest, penalty, fine or addition
thereto which may be levied, assessed or imposed by any foreign,
federal, state or local governmental authority or agency,
including, without limitation, any sales, use, transfer, excise, or
other similar tax (“ Transaction Taxes ”), and
all taxes based on or measured by income, gains, revenues, or net
worth except the Texas franchise tax and any amounts paid or due
with state qualification filings (“ Income Taxes
”).
(iii) The Company and Seller
have timely filed all tax returns, reports, or other filings
regarding Transaction Taxes which are required to be filed under
applicable law for the period prior to the Closing Date except
where a failure to do so would not have a material adverse effect
on the Company.
(iv) Neither the Company nor
Seller is a party to any pending action or proceeding by any
governmental authority for assessment or collection of Taxes
relating to the Company’s operation or income, and no claim
for assessment or collection of Taxes has been asserted against the
Company or Seller. To the extent any Taxes are assessed, whether or
not due, for the period prior to the Closing Date, Seller shall
have the exclusive right at Seller’s sole expense to defend
any such assessment or other Tax-related claim and shall indemnify
Purchaser as provided in Section 5 below with respect
thereto, provided that Purchaser shall have given Seller notice of
any such Tax assessment or claim within two weeks after the date
Purchaser first received notice of same (or provided that any
greater delay in giving notice does not prejudice Seller’s
defense of the assessment or claim). For Income Tax purposes, the
Company is a disregarded entity.
(e) Title to Properties;
Absence of Encumbrances, etc . The Company has, subject only to
immaterial exceptions, good and marketable title to all of its
properties and assets (including the assets reflected on balance
sheet as at the Balance Sheet Date), free and clear of all claims,
encumbrances, security interests, restrictions on transfer, or
other defects (“ Encumbrances ”) which might
adversely affect the Company’s rights with respect to any
such property or asset. Title to the Company’s Aircraft, as
defined in Section 3.1(f) , shall be insurable and free
and clear of all Encumbrances, as of the Closing Date. The Company
has not received any notice of violation of, and no basis is known
to the Company or Seller for any material claim of violation of,
any applicable law, ordinance, regulation, order, or requirement
relating to the operations of the Company’s owned or leased
properties or assets.
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(f) Condition of
Aircraft . The Company owns outright a Gulfstream IV-SP,
manufacturer’s serial number 1344 and registration number
N18AC, together with all parts, Avionics, equipment, instruments,
components and accessories installed thereon and therein, including
two (2) Rolls Royce Model TAY MK- 611-8 engines having
manufacturer’s serial numbers 16807 (left) and 16810 (right)
(“ Aircraft ”), which has a valid FAA
Certificate of Airworthiness and is in airworthy condition with all
systems in normal operating condition, per the manufacturer’s
maintenance and operati
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