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EXECUTION COPY
SECURITIES PURCHASE AGREEMENT
AMONG
PATRICK INDUSTRIES, INC.
(“ Buyer ”)
AND
FNL MANAGEMENT CORP.
(“ Sellers’ Representative ”)
AND
ADORN HOLDINGS, INC.
(the “ Company ”)
AND
THE STOCKHOLDERS, WARRANT HOLDERS, AND OPTION HOLDERS
OF
THE COMPANY
April 10 , 2007
TABLE OF CONTENTS Page
SECURITIES PURCHASE AGREEMENT THIS SECURITIES PURCHASE AGREEMENT (“ Agreement ”) is entered into as of the 10th day of April, 2007, among Patrick Industries, Inc., an Indiana corporation (“ Buyer ”), each of the Persons identified in Section 4.2.1 of the Disclosure Letter (each, a “ Seller ,” and collectively, “ Sellers ”), Adorn Holdings, Inc., a Delaware corporation (the “ Company ”), and on its own behalf, and on behalf of each Seller, FNL Management Corp., an Ohio corporation (“ Sellers’ Representative ”). RECITALS : A. Sellers, in the aggregate, own: (i) all of the issued and outstanding shares of capital stock (as more particularly defined in Section 4.2.1, the “ Shares ”) of the Company; (ii) all of the issued and outstanding options to purchase shares of capital stock of the Company (as more particularly defined in Section 4.2.1, the “ Stock Options ”); and (iii) all of the issued and outstanding warrants to purchase shares of capital stock of the Company (as more particularly defined in Section 4.2.1, the “ Warrants ” and, together with the Shares and the Stock Options, collectively referred to herein as the “ Securities ”). B. The Company owns all of the issued and outstanding percentage interests of Adorn, LLC, a Delaware limited liability company (the “ Subsidiary ” and together with the Company, the “ Acquired Companies ”). C. Buyer shall purchase from Sellers, and Sellers shall sell to Buyer, the Securities upon and subject to the terms and conditions set forth in this Agreement (the “ Securities Purchase ”). Now, therefore, in consideration of the mutual representations, warranties, covenants and agreements set forth in this Agreement, Buyer, the Company, Sellers, and Sellers’ Representative hereby agree as follows: ARTICLE 1 1.1 Definitions . Certain terms used in this Agreement shall have the meanings set forth in Article 10, or elsewhere herein as indicated in Article 10. 1.2 Accounting Terms . Accounting terms used in this Agreement and not otherwise defined herein shall have the meanings attributed to them under GAAP. ARTICLE 2 2.1 Purchase and Sale . Subject to the terms and conditions of this Agreement, at the Closing each Seller shall sell, assign, transfer and deliver to Buyer, free and clear of all Liens, and Buyer shall purchase from each Seller, all of such Seller’s right, title and interest in and to all of the
Securities owned by such Seller, as more specifically identified in Section 4.2.1 of the Disclosure Letter (as to each Seller, respectively, the “ Seller’s Respective Securities ”). 2.2 Purchase Price . The aggregate purchase price for all of the Securities (the “ Purchase Price ”) shall be an amount equal to:
(d) plus the amount, if any, by which the Closing Working Capital exceeds the Working Capital Target, or minus the amount, if any, by which the Working Capital Target exceeds the Closing Working Capital. 2.3 Estimated Purchase Price; Payment of Indebtedness . On the second (2nd) Business Day before the Closing Date, the Company shall estimate in good faith the amount of the Closing Cash, the Closing Indebtedness and the Closing Working Capital, respectively, as of 11:59 p.m. on the Closing Date and deliver to Buyer a certificate setting forth such estimates (the “ Closing Certificate ”). The Closing Certificate shall be prepared in accordance with Section 2.4.1 with the understanding that such certificate represents good faith estimates of such amounts. As used herein, “ Estimated Closing Cash ,” “ Estimated Closing Indebtedness ” and “ Estimated Closing Working Capital ” mean the estimates of the Closing Cash, the Closing Indebtedness and the Closing Working Capital, respectively, set forth in the Closing Certificate and “ Estimated Purchase Price ” means an amount equal to the Purchase Price calculated as set forth in Section 2.2, assuming for purposes of such calculation that the Closing Cash is equal to the Estimated Closing Cash, that the Closing Indebtedness is equal to the Estimated Closing Indebtedness and that the Closing Working Capital is equal to the Estimated Closing Working Capital. Subject to the terms and conditions of this Agreement, at the Closing, Buyer shall (a) pay and deliver the Estimated Purchase Price (as calculated based upon the Closing Certificate) (the “ Closing Date Payment ”) to Sellers by means of a wire transfer of immediately available cash funds to an account as directed by Sellers’ Representative prior to the Closing (the “ Sellers’ Account ”) (and the Sellers’ Representative shall be solely responsible for payment therefrom to each Seller for his, her or its Seller’s Respective Securities), and (b) pay the Indebtedness of the Acquired Companies identified in Section 2.3 of the Disclosure Letter pursuant to the payoff letters delivered pursuant to Section 6.1(d)(iv) (collectively, the “ Repaid Closing Indebtedness ”). For the avoidance of doubt, the Closing Date Payment shall be inclusive of any required Tax withholding from amounts payable to Sellers.
2.4.1 Adjustment Statement Preparation . Within sixty (60) days after the Closing Date, Buyer shall cause the Acquired Companies to prepare and deliver to Sellers’ Representative an adjustment statement setting forth the amount of the Closing Cash, the Closing Indebtedness and the Closing Working Capital of the Acquired Companies, on a consolidated basis, respectively, as of immediately prior to the Closing (the “ Preliminary Adjustment Statement ”) and, based on the Closing Cash, the Closing Indebtedness and the Closing Working Capital as derived
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therefrom, Buyer’s written calculation of the Purchase Price, and the adjustment necessary to reconcile the Estimated Purchase Price to the Purchase Price (the “ Preliminary Post-Closing Adjustment ”). The Closing Working Capital component of the Preliminary Adjustment Statement and the Final Adjustment Statement shall be prepared in accordance with GAAP (using the methods, policies, practices and procedures used in the preparation of the Audited Financial Statements for the year ending December 31, 2006), except that the Preliminary Adjustment Statement and the Final Adjustment Statement shall only reflect those items necessary to calculate the Closing Working Capital and, for the avoidance of doubt, the calculation of Closing Working Capital shall include outstanding checks as a component of accounts payable as reflected in Exhibit A. In preparing the Preliminary Adjustment Statement and Final Adjustment Statement: (a) any and all effects on the assets or liabilities of any of the Acquired Companies of any financing or refinancing arrangements entered into by Buyer at any time at or after the Closing Date shall be entirely disregarded; (b) it shall be assumed that the Acquired Companies and their respective lines of business shall be continued as a going concern; and (c) there shall not be taken into account the closing of the transaction or any of the plans, transactions or changes that Buyer intends to initiate or make or cause to be initiated or made at or after the Closing Date with respect to any of the Acquired Companies or its respective business or assets, or any facts or circumstances that are unique or particular to Buyer or any assets or liabilities of Buyer, or any obligation for the payment of the Purchase Price hereunder. 2.4.2 Adjustment Statement Review . Sellers’ Representative, on behalf of all Sellers, shall review the Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment and, if Sellers’ Representative believes that either was not prepared in accordance with Section 2.4.1, Sellers’ Representative shall so notify Buyer in writing no later than the thirtieth (30) day after Sellers’ Representative receipt thereof, setting forth in such notice Sellers’ Representative objection or objections to the Preliminary Adjustment Statement or the Preliminary Post-Closing Adjustment with particularity and the specific changes or adjustments which Sellers’ Representative claims are required to be made thereto in order to conform the same to the terms of Section 2.4.1. Any notice of objection delivered pursuant to this Section 2.4.2 shall (a) specify in reasonable detail the nature of any disagreement so asserted and (b) contain a commitment by Sellers’ Representative, on behalf of Sellers, to pay all adjustments owed to Buyer, if any, that are not in dispute by wire transfer of immediately available funds within two (2) Business Days of Buyer’s receipt of such notice (“ Objection Notice ”). Conversely, Buyer agrees to pay Sellers’ Representative, for the benefit of all Sellers, all adjustments owed to Sellers, if any, that are not in dispute by wire transfer of immediately available funds within two (2) Business Days of Buyer’s receipt of the Objection Notice. Buyer shall cause the Acquired Companies to cooperate with all representatives of Sellers (including Sellers’ Representative) in the review of the Preliminary Adjustment Statement and, without limiting the generality of the foregoing, shall cause the books and records of the Acquired Companies to be made available during normal business hours to such representatives, and shall cause the necessary personnel of the Acquired Companies to provide reasonable cooperation to such representatives in their review of the Preliminary Adjustment Statement, including granting such persons access to the facilities and other assets of the Acquired Companies, in each case, upon reasonable advance notice. 2.4.3 Adjustment Statement Dispute Resolution . If Sellers’ Representative timely delivers an Objection Notice to Buyer in accordance with Section 2.4.2, and if Buyer and Sellers’
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Representative are unable to resolve such dispute through good faith negotiations within fifteen (15) days after Sellers’ Representative’s delivery of such Objection Notice, then, the parties shall mutually engage and submit such dispute to, and the same shall be finally resolved in accordance with the provisions of this Agreement by an accounting firm of national reputation as shall be mutually acceptable to Buyer and Sellers’ Representative (the “ Independent Accountants ”). Buyer and Sellers’ Representative shall have the opportunity to present their positions with respect to such disputed matters to the Independent Accountants in accordance with the requirements of Section 2.4. The Independent Accountants shall determine and report in writing to Buyer and Sellers’ Representative as to the resolution of all disputed matters submitted to the Independent Accountants and the effect of such determinations on the Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment within twenty (20) days after such submission or such longer period as the Independent Accountants may reasonably require, and such determinations shall be final, binding and conclusive as to Buyer, Sellers, Sellers’ Representative and their respective Affiliates. The fees and expenses of the Independent Accountants shall be shared equally between Buyer, on the one hand, and Sellers, collectively, on the other hand. 2.4.4 Final Adjustment Statement and Post-Closing Adjustment . The Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment shall become the “ Final Adjustment Statement ” and the “ Final Post-Closing Adjustment ,” respectively, and as such shall become final, binding and conclusive upon Buyer, Sellers, Sellers’ Representative and their respective Affiliates for all purposes of this Agreement, upon the earliest to occur of the following: (a) the mutual acceptance by Buyer and Sellers’ Representative of the Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment, respectively, with such changes or adjustments thereto, if any, as may be proposed by Sellers’ Representative and consented to by Buyer; (b) the expiration of thirty (30) days after Sellers’ Representative’s receipt of the Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment, respectively, without timely written objection thereto by Sellers’ Representative in accordance with Section 2.4.2; or (c) the delivery to Buyer and Sellers’ Representative by the Independent Accountants of the report of their determination of all disputed matters submitted to them pursuant to Section 2.4.3. 2.4.5 Adjustment of Purchase Price . If the Purchase Price, as finally determined in accordance with Section 2.4, is greater than the Estimated Purchase Price, then Buyer shall pay the amount of such difference (less amounts paid, if any, with respect to non-disputed adjustments pursuant to Section 2.4.2) to Sellers’ Representative for the benefit of Sellers by means of a wire transfer of immediately available funds to Sellers’ Account. If the Purchase Price, as finally determined in accordance with Section 2.4, is less than the Estimated Purchase Price, Sellers’ Representative, on behalf of Sellers, and in accordance with the allocations set forth in Section 2.5 of the Disclosure Letter, shall pay the amount of such difference (less amounts paid, if any, with respect to non-disputed adjustments pursuant to Section 2.4.2) to Buyer by means of a wire transfer of immediately available funds to an account designated by Buyer. The Final Post-
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Closing Adjustment, if any, shall be due and payable pursuant to this Section 2.4.5 no later than two (2) Business Days after the Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment become the Final Adjustment Statement and the Final Post-Closing Adjustment, respectively, pursuant to Section 2.4.4. For Tax purposes, any payment by Buyer or Sellers under this Agreement, including pursuant to Article 9, shall be treated as an adjustment to the Purchase Price unless a contrary treatment is required by Law. 2.5 Allocation to Sellers of the Purchase Price . The payment by Buyer of the Purchase Price (including any additional amount required pursuant to Section 2.4.5) into Sellers’ Account shall constitute payment by Buyer to each Seller and satisfaction of Buyer’s obligation to pay such amount hereunder. After such payment by Buyer, Sellers’ Representative shall be solely responsible for allocating and distributing to each Seller such Seller’s respective share of the distributable proceeds from the Sellers’ Account, as set forth on Section 2.5 of the Disclosure Letter (as to each Seller, his, her or its “ Percentage Interest ”), with the understanding among Sellers that distributable proceeds will be impacted by the cashless exercise of the Stock Options. Any collective obligations of Sellers, including, without limitation, payment of transaction fees and expenses, shall be allocated among Sellers in accordance with each Seller’s Percentage Interest. The portion of the distributable proceeds allocated to each Seller (net of obligations, tax withholdings and any reserves or holdbacks for indemnification obligations or otherwise established pursuant to this Agreement, or by Sellers’ Representative in its sole discretion) shall be paid and distributed to such Seller by means of a wire transfer of immediately available funds to an account designated by such Seller to Sellers’ Representative prior to, on, or after the Closing. At the Closing, Sellers agree that Sellers’ Representative withhold from the proceeds otherwise distributable to each Seller hereunder, and pay, such Seller’s Percentage Interest of any fees or expenses incurred by or on behalf of Sellers in connection with the transactions contemplated hereby. Nothing in this Section 2.5 is intended or shall be construed to confer on any Seller or his, her or its successors, affiliates or assigns rights against Buyer related to the portion of the Purchase Price allocated to such Seller or the net proceeds received after delivery of same into Sellers’ Account. ARTICLE 3 Representations and Warranties Concerning the Transaction
Except as set forth in the Disclosure Letter attached hereto and made a part hereof, each Seller severally represents and warrants to Buyer as follows with the agreement that no Seller makes any representation or warranty in this Article 3 with respect to any other Seller: 3.1 Authority; Capacity and Representation . Such Seller possesses all requisite legal right, power, authority and capacity (corporate or otherwise) to execute, deliver and perform this Agreement, and each other agreement, instrument and document to be executed and delivered by such Seller pursuant hereto (the “ Seller Ancillary Agreements ”), and consummate the transactions contemplated herein and therein. The execution, delivery and performance by such Seller of this Agreement and such Seller Ancillary Agreements and the consummation by such Seller of the transactions contemplated hereby and thereby have been duly and validly authorized (by corporate action or otherwise) on the part of such Seller. If Seller is not a natural person,
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Seller is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. 3.2 Ownership of Securities . Such Seller is the sole beneficial and record owner and has good and marketable title to all of such Seller’s Respective Securities free and clear of all Liens. Upon delivery to Buyer of the certificates, instruments or agreements, as applicable, representing the Securities and payment for the Securities at Closing as provided in this Agreement, Seller will convey to Buyer good and valid title to the Securities, free and clear of all Liens, other than those created by Buyer. 3.3 Execution and Delivery; Enforceability . This Agreement has been, and each Seller Ancillary Agreement will upon delivery be, duly executed and delivered by such Seller and constitutes, or will upon such delivery constitute, the legal, valid and binding obligation of such Seller, enforceable in accordance with its terms.
(a) Except for the applicable requirements of the Security Holders’ Agreement, neither the execution and delivery of this Agreement or any Seller Ancillary Agreement nor the consummation by such Seller of the transactions contemplated hereby or thereby, nor compliance by such Seller with any of the provisions hereof or thereof, will: (i) in the case that Seller is not a natural person, conflict with or result in a breach of, any provisions of the Charter Documents of such Seller, (ii) constitute or result in the breach of any term, condition or provision of, or constitute a default under (with or without notice or lapse of time, or both), or give rise to any right of termination, consent, amendment, cancellation, modification or acceleration with respect to, or give rise to any obligation of such Seller to make any payments under, or result in the creation or imposition of a Lien upon any property or assets of such Seller pursuant to any material Contract to which such Seller is a party or by which any of such Seller or any of its respective properties or assets may be subject, or (iii) violate any Law or Order applicable to such Seller or by which any properties or assets owned or used by such Seller is bound or affected. (b) Other than the applicable requirements of the HSR Act and the Security Holders’ Agreement, no consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority or other Person is required to be obtained or made by Seller in connection with: (i) the execution, delivery and performance by such Seller of this Agreement or any Seller Ancillary Agreement; or (ii) the compliance by such Seller with any of the provisions hereof or thereof or the consummation by such Seller of the transactions contemplated hereby or thereby.
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ARTICLE 4 Representations and Warranties Concerning the Acquired Companies
Except as set forth in the Disclosure Letter attached hereto and made a part hereof, with respect to the representations and warranties contained in Sections 4.1 through 4.6. inclusive, of this Article 4, the Company represents and warrants to Buyer that: 4.1 Organization and Good Standing . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Subsidiary is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. Each of the Acquired Companies has all requisite corporate power and authority to own and lease its assets and to operate its business as the same are now being owned, leased and operated. Each of the Acquired Companies is duly qualified or licensed to do business as a foreign corporation in, and is in good standing in, each jurisdiction in which the nature of its business or its ownership of its properties requires it to be so qualified or licensed, except where the failure to be so qualified or licensed would not have or reasonably be expected to have a Material Adverse Effect. Section 4.1 of the Disclosure Letter sets forth a true and complete list of all jurisdictions in which each of the Acquired Companies are qualified or licensed to do business as a foreign corporation. Each of the Acquired Companies has delivered or made available to Buyer a true, complete and correct copy of the Charter Documents, including all amendments thereto, for each of the Acquired Companies. The Charter Documents of each of the Acquired Companies are in full force and effect. The Company has all corporate power and authority to enter into this Agreement and any other agreements or instruments contemplated hereby and to consummate the transactions contemplated herein. Upon execution and delivery hereof by the parties hereto, this Agreement shall constitute the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms.
4.2.1 Capital Stock of the Company . The total number of shares of capital stock of all classes which the Company has the authority to issue is One Hundred Thousand (100,000), which are classified as follows: Fifty Thousand (50,000) Class A Common Shares, $.01 par value; Ten Thousand (10,000) Class B Common Shares, $.01 par value; Twenty Thousand (20,000) Class A Preferred Shares, $.01 par value; and Twenty Thousand (20,000) Series B Preferred Shares, $.01 par value. Of such authorized shares, a total of Twenty Nine Thousand Forty-Three and Nine Hundred Fifty Six Thousandths (29,043.956) Class A Common Shares are issued and outstanding (each, a “ Share ,” and collectively, the “ Shares ”) and are owned of record by Sellers in the respective amounts set forth in Section 4.2.1 of the Disclosure Letter. In addition, Two Thousand Four Hundred Eighty and Eighty-Six Hundredths (2,480.86) Warrants for Class B Common Shares (the “ Warrants ”) and One Thousand Eighty-Two and Two Hundredths (1,082.02) Stock Options for Class A Common Shares (the “ Stock Options ”) are owned by Sellers in the respective amounts set forth in Section 4.2.1 of the Disclosure Letter. All of the Shares have been duly authorized and validly issued, are fully paid and nonassessable, and were issued in compliance with all applicable federal and state securities laws and any preemptive rights or rights of first refusal of any Person. All of the Warrants and Stock Options have been
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duly authorized, and were delivered in compliance with all applicable federal and state securities laws and any preemptive rights or rights of first refusal of any Person. Except for the Stock Options and Warrants, or as set forth in the Security Holders’ Agreement: (a) there are no voting trusts, proxies, or other agreements or understandings with respect to the voting of any shares of capital stock of the Company; (b) there does not exist nor is there outstanding any right or security granted to, issued to, or entered into with, any Person to cause the Company to issue, grant or sell any shares of capital stock of the Company to any Person (including any warrant, stock option, call, preemptive right, convertible or exchangeable obligation, subscription for stock or securities convertible into or exchangeable for stock of the Company, or any other similar right, security, instrument or agreement), and there is no commitment or agreement to grant or issue any such right or security; (c) there is no obligation, contingent or otherwise, of the Company to: (i) repurchase, redeem or otherwise acquire any share of the capital stock or other equity interests of the Company; or (ii) provide funds to, or make any investment in (in the form of a loan, capital contribution or otherwise), or provide any guarantee with respect to the obligations of any other Person (other than the other Acquired Companies); and (d) there are no bonds, debentures, notes or other indebtedness (other than the Warrants) which have the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company are entitled to vote. 4.2.2 Capital Stock of the Subsidiary . The capital stock of the Subsidiary is as set forth in Section 4.2.2 of the Disclosure Letter. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the percentage interests of the Subsidiary and there does not exist nor is there outstanding any right or security granted to, issued to, or entered into with, any Person to cause the Subsidiary to issue, grant or sell any percentage interests or other equity interests of the Subsidiary to any Person (including any warrant, stock option, call, preemptive right, convertible or exchangeable obligation, subscription for percentage interests or securities convertible into or exchangeable for percentage interests of the Subsidiary, or any other similar right, security, instrument or agreement), and there is no commitment or agreement to grant or issue any such right or security. There is no obligation, contingent or otherwise, of the Subsidiary to: (i) repurchase, redeem or otherwise acquire any percentage interests or other equity interests of the Subsidiary; or (ii) provide funds to, or make any investment in (in the form of a loan, capital contribution or otherwise), or provide any guarantee with respect to the obligations of any other Person (other than the other Acquired Companies). All of the issued and outstanding membership interests of the Subsidiary are owned by the Company free and clear of any Lien or pledge. 4.3 Other Ventures . Other than the Company (with respect to the Subsidiary), none of the Acquired Companies owns of record or beneficially any equity ownership interest in any other Person, nor is it a partner or member of any partnership, limited liability company, joint venture or similar entity.
(a) Neither the execution and delivery of this Agreement or any agreement, instrument or document to be executed and delivered by the Company pursuant hereto (the “ Company Ancillary Agreements ”), nor the consummation by the Company of the transactions contemplated hereby or thereby, nor compliance by the Company with any of the provisions
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hereof or thereof, will: (i) conflict with or result in a breach of any provisions of the Charter Documents of any Acquired Company; (ii) constitute or result in the breach of any term, condition or provision of, or constitute a default under (with or without notice or lapse of time, or both), or give rise to any right of termination, consent, amendment, cancellation, modification or acceleration with respect to, or give rise to any obligation of any Acquired Company to make any payments under, or result in the creation or imposition of a Lien upon any property or assets of any Acquired Company pursuant to any Material Contract to which any Acquired Company is a party or by which any of them or any of their respective properties or assets used or owned by any Acquired Company may be subject; (iii) subject to receipt of the requisite approvals set forth in Section 4.4 of the Disclosure Letter, contravene, conflict with or result in a violation of, or constitute a failure to comply with, in any material respect, any Law or Order applicable to any Acquired Company or by which any properties or assets owned or used by any Acquired Company are bound or affected; or (iv) contravene, conflict with or result in a violation of, in any material respect, any of the terms or requirements of, or give any Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify any material Permit that is held by any Acquired Company. (b) No consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority or other Person is required to be obtained or made by any Acquired Company in connection with: (i) the execution and delivery of this Agreement or any Company Ancillary Agreement or (ii) the compliance by the Company with any of the provisions hereof or thereof or the consummation of the transactions contemplated hereby or thereby. (c) No Person is or will become entitled, by reason of any agreement or arrangement entered into or made by or on behalf of any of the Acquired Companies, to receive any commission, brokerage, finder’s fee or other similar compensation in connection with the consummation of the transactions contemplated by this Agreement. 4.5 Financial Statements . Buyer has been provided copies of: (a) the audited consolidated financial statements of the Company as of and for the fiscal years ended December 31, 2005 and 2006 (collectively, the “ Audited Financial Statements ”); and (b) the unaudited consolidated financial statements of the Company as of and for the two (2) month period ended March 3, 2007 (the “ Interim Financial Statements ”). The Audited Financial Statements have been prepared in accordance with GAAP, consistently applied, and present fairly, in all material respects, the consolidated financial position of the Acquired Companies as of the dates indicated and the results of operations for the periods then ended. The Interim Financial Statements have been prepared in accordance with GAAP, consistently applied, and present fairly, in all material respects, the consolidated financial position of the Acquired Companies as of the date indicated and the results of operations for the period then ended, subject in each case to: (a) normal year end adjustments; and (b) the absence of disclosures normally made in footnotes. The balance sheet as of March 3, 2007, which is included in the Interim Financial Statements, is herein referred to as the “ Acquisition Balance Sheet .”
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(a) other than circumstances affecting the recreational vehicle and manufactured housing industries generally, there has not occurred any event or circumstance that has had, resulted in, or would reasonably be expected to have, a Material Adverse Effect; (b) other than as required by applicable Law, there has not been any change in the Tax reporting or accounting policies or practices of any of the Acquired Companies including practices with respect to the payment of accounts payable or the collection of accounts receivable and none of the Acquired Companies has settled or compromised any material Tax liability or made or revoked any material Tax election; (c) (i) other than in the ordinary course of business, none of the Acquired Companies has made, or granted, (A) any bonus or any wage, severance or termination pay, salary or compensation increase to any current or former director, officer, employee or consultant, (B) any increase of any benefit provided under any employee benefit plan, employment agreement or arrangement, including any fringe benefit plan or arrangement, or (C) any equity or equity-based compensation award; and (ii) none of the Acquired Companies has amended or terminated any existing employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement; (d) none of the Acquired Companies has issued, transferred, sold or delivered any shares of its capital stock (or its equivalent or options or other convertible securities convertible into or exchangeable or exercisable for, with or without additional consideration, such capital stock or its equivalent) or any other interest therein, or created any Liens on such capital stock except in connection with the exercise of Options; (e) none of the Acquired Companies has merged or consolidated with any corporation or other entity or invested in, loaned, made an advance or capital contribution to or otherwise acquired any capital stock or business of any Person, or consummated any business combination transaction, in each case, whether a single transaction or series of related transactions;
(g) none of the Acquired Companies has suffered any theft, damage, destruction or loss of or to any tangible asset or assets having a value in excess of Fifty Thousand Dollars ($50,000) individually; (h) none of the Acquired Companies has sold, assigned, transferred or subjected to any Lien or otherwise disposed of any tangible or intangible assets having a book value in excess of Fifty Thousand Dollars ($50,000) individually, except for sales of inventory in the ordinary course of business consistent with past practice and except for Permitted Liens; (i) none of the Acquired Companies has purchased or leased, or has committed to purchase or lease, or authorized any capital expenditures or commitment for capital expenditures, of any asset for an amount in excess of One Hundred Thousand Dollars ($100,000) individually, except purchases of inventory and supplies in the ordinary course of business consistent with past practice;
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(j) none of the Acquired Companies has abandoned or cancelled any material Intellectual Property rights; (k) there has not been any transfer or other disposition (by the way of a Contract or otherwise) to any Person of rights to any Intellectual Property of the Acquired Companies; (l) none of the Acquired Companies has made or agreed to make any write-off or write-down, any determination to write-off or write-down, or revalue, any of the assets and properties of the Company, or change any reserves or liabilities associated therewith, in an amount exceeding Fifty Thousand Dollars ($50,000); (m) none of the Acquired Companies has made or agreed to make payment, discharge or satisfaction, in an amount in excess of Twenty-Five Thousand Dollars ($25,000), in any one case, of any claim, liability or obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Audited Financial Statements and other than liabilities incurred in the ordinary course of business since the December 31, 2006; and (n) none of the Acquired Companies has entered into any agreement or otherwise committed to do any of the foregoing. Except as set forth in the Disclosure Letter attached hereto and made a part hereof, with respect to the representations and warranties contained in Sections 4.7 through 4.19, inclusive, of this Article 4, the Company represents and warrants to Buyer that, to the Company’s Knowledge:
(a) All Taxes owed by any of the Acquired Companies for all taxable periods, or portions thereof, ending on or before the date hereof (whether or not shown on any Tax Return) have been fully paid, other than Taxes which are not yet due or which, if due, are not delinquent or are being or currently planned to be contested in good faith by appropriate proceedings or have not been finally determined. (b) All Tax Returns required to be filed by or with respect to the Acquired Companies have been timely filed and all such Tax Returns (including information provided therewith or with respect thereto) are accurate and complete in all material respects. (c) There are no Tax claims, audits or proceedings by any Taxing Authority pending in connection with any Taxes due from or with respect to the Acquired Companies, and no claim has been made in writing by any Taxing Authority in a jurisdiction where the Acquired Companies do not file Tax Returns that they are or may be subject to taxation by that jurisdiction and no information has been requested in writing by any Taxing Authority in connection with its consideration of the foregoing.
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(d) There are not currently in force any waivers or agreements binding upon any of the Acquired Companies for the extension of time for the assessment or payment of any Tax for any taxable period, and no request for any such waiver or extension is currently pending. (e) Each of the Acquired Companies has properly withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any Person. (f) None of the Acquired Companies is a party to or bound by any Tax allocation or Tax sharing agreement, or any similar agreement. (g) None of the Acquired Companies has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company) nor have any liability for the Taxes of any Person under Treas. Reg. § 1.1502-6, Treas. Reg. § 1.1502-78 (or any similar provision of state, local, or foreign law), as a transferee or successor, by Contract, or otherwise. (h) There are no Liens for Taxes upon the assets or properties of any of the Acquired Companies, except for statutory Liens for current Taxes not yet due. (i) None of the Acquired Companies has executed any power of attorney, which is currently in effect, with respect to any matter relating to Taxes. (j) None of the Acquired Companies has a permanent establishment outside of the United States. (k) The Acquired Companies have maintained all necessary books and records with respect to Tax Returns still subject to audit. 4.8 Employees . There are no pending controversies, grievances or claims by any employee or former employee of any of the Acquired Companies with respect to his or her employment, termination of employment or any employee benefits (other than routine claims for benefits). None of the Acquired Companies is a party to any collective bargaining agreement or employee grievance procedure or dispute resolution mechanism nor is there pending or underway any union organizational activities or proceedings with respect to employees of any of the Acquired Companies. Section 4.8 of the Disclosure Letter sets forth a complete list, as of the date hereof, of all employees of any of the Acquired Companies who, for the fiscal year ended December 31, 2006, received total employment compensation of One Hundred Fifty Thousand Dollars ($150,000) or more in such fiscal year or who would have received such amount had he or she been actively employed for the full fiscal year. There is no labor strike, slowdown or stoppage pending or threatened in writing against any of the Acquired Companies. 4.9 Employee Benefit Plans and Other Compensation Arrangements . Set forth in Section 4.9(a) of the Disclosure Letter is a list of all material employee benefit plans (as defined in Section 3(3) of ERISA), with respect to which any of the Acquired Companies currently is the sponsor or is obligated to make contributions under the plan terms (the “ Plans ”). With respect to the Plans:
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(a) none of the Plans is a “multiemployer plan” (as defined in Title I or Title IV of ERISA) or a plan subject to Title IV of ERISA; (b) each of the Plans that is intended to be tax-qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and is so qualified in all material respects, except that no representation is made with respect to any formal qualification requirement with respect to which the remedial amendment period under Section 401(b) of the Code has not yet expired; (c) there has been no “prohibited transaction” as that term is defined in Section 4975 of the Code or Section 406 of ERISA (each as modified by Section 408 of ERISA) within the last five years and, within the last five years, no Plan has been terminated under either a distress or standard termination as provided in Title IV of ERISA, nor has any notice of intent to terminate any Plan been filed with the Pension Benefit Guaranty Corporation (“PBGC”), nor has the PBGC issued any written notice of intent to terminate any Plan; (d) no Plan has incurred any “accumulated funding deficiency” as such term is defined in Section 412 of the Code and Section 302 of ERISA (whether or not waived) within the last five years; (e) neither the Company nor any ERISA Affiliate has or will have any liability (contingent or otherwise) to or in connection with any “multiemployer plan” within the meaning of Section 3(37) of ERISA, or any other employee benefit plan subject to Title IV of ERISA; (f) all of the Plans have been operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of the Plans or applicable Law have been timely made, including, without limitation, each annual report (if any) required for each applicable Plan has been timely filed (including extensions for purposes of establishing timeliness); (g) there are no pending or threatened claims against any of the Plans by any employee or beneficiary covered under any Plan or otherwise involving any Plan (other than routine claims for benefits); (h) none of the Acquired Companies was obligated to make any payments within the immediately preceding twelve (12) month period hereof, nor is any Acquired Company a party to any Contract, including the Plans, covering any current or former employee or consultant of the Acquired Companies that require it to make or give rise to any payments in connection with the transactions contemplated hereby (disregarding any termination of employment occurring on or after the Closing) that are not fully deductible under Section 280G of the Code; (i) except with respect to the Stock Options and the Warrants, neither the execution and delivery of this Agreement nor the consummation of the
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transactions contemplated hereby, disregarding any termination of employment which may occur on or after the Closing, will: (i) result in any material payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any director, officer or any employee of the Acquired Companies from the Acquired Companies under any Plan or otherwise; (ii) materially increase any benefits otherwise payable under any Plan; or (iii) result in any acceleration of the time of payment or vesting of any such benefits to any material extent; (j) none of the Plans provides or is obligated to provide medical or life insurance coverage to any retired Person, or any current employee of any of the Acquired Companies following such employee’s retirement or other termination of employment, except as required by applicable Law (including Section 4980B of the Code); (k) none of the Acquired Companies maintains any Plan under which it would be obligated to pay benefits solely because of the consummation of the transactions contemplated by this Agreement, disregarding any termination of employment which may occur on or after the Closing; (l) none of the Acquired Companies have classified any individual as an “independent contractor” or of similar status who, according to a plan or applicable Law, should have been classified as an employee; (m) the Acquired Companies have no liability, actual or contingent, with respect to any employee who is improperly excluded from participating in any Plan; (n) except as otherwise reflected in the Plan documents (including any summary plan descriptions), or as required by applicable Law, neither of the Acquired Companies has promised or agreed to limit its authority to amend or terminate any of the Plans; and (o) each nonqualified deferred compensation plan subject to Section 409A of the Code that is maintained by any of the Acquired Companies has been administered in all material respects in a manner intended to avoid adverse tax consequences under Section 409A of the Code.
(a) there is and has been no generation, Treatment, Storage, Release, Disposal or transport of any Hazardous Material, regardless of quantity, at, on, under, or from any of the Real Property, or at, on, under or from any real property formerly owned or operated or leased, by any Acquired Company except in conformance with all applicable Laws; (b) no asbestos or urea formaldehyde containing materials have been incorporated into or used on the buildings or any improvements that are a part of the Real Property, or into other assets of or products made or sold by the Acquired Companies;
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(c) there are no electrical transformers, capacitors, fluorescent light fixture with ballasts, or other equipment containing polychlorinated biphenyls on the Real Property; (d) all Hazardous Material not in current, usable inventory has been removed from the Real Property and disposed of in compliance with all applicable Laws; (e) no Acquired Company has at any time sent any Hazardous Materials to a site that, pursuant to any applicable Law: (i) has been placed or proposed for placement on the National Priorities List or any similar state list; or (ii) is subject to or the source of an order, demand or request from a Government Authority to take “response,” “corrective,” “removal,” or “remedial” action, as defined in any applicable Environmental Law, or to pay for the costs of any such action at any location; (f) since December 31, 2003, no Acquired Company has received any written notice, order or other communication from any Governmental Authority, citizens’ group, employee or other individual or entity claiming that the Acquired Companies are, or may be, liable for (i) personal injury, property damage or for any other costs or expenses related to any Release, Treatment, Storage or Disposal of, or exposure to, any Hazardous Material; (ii) any Environmental Claim; or (iii) any non-compliance with any Environmental Laws; (g) there are no underground storage tanks or related piping, landfills, buried drums or surface impoundments located on, under or at the Real Property; (h) each of the Acquired Companies is, and has been since December 31, 2003, in compliance in all material respects with all applicable Environmental Laws (which compliance includes without limitation the possession by each Acquired Company of all Permits required under applicable Environmental Laws, and compliance in all material respects with the terms and conditions thereof); and (i) there is no Environmental Claim pending or threatened in writing against any of the Acquired Companies or against any Person with respect to whom the Acquired Companies has or may have retained or assumed any liability for any Environmental Claim, either contractually or by operation of Law. 4.11 Permits; Compliance with Laws . Each of the Acquired Companies is and has been since December 31, 2003 in compliance in all material respects with all applicable Laws, and possesses and has possessed since December 31, 2003 all material licenses, permits, registrations, permanent certificates of occupancy, authorizations, and certificates from any Governmental Authority required under applicable Law with respect to the operation of its business as currently conducted (collectively, “ Permits ”). Except for those that are no longer applicable to any of the Acquired Companies, none of the Acquired Companies has received any written notice from any Governmental Authority regarding any actual, alleged, possible or potential violation of, or failure to comply with any Law or Order applicable to any Acquired Company or by which any properties or assets owned or used by any Acquired Company are presently bound or affected.
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(a) Section 4.12(a) of the Disclosure Letter lists: (i) all of the real property owned by any of the Acquired Companies (collectively, the “ Owned Real Property ”); and (ii) all of the real property demised by leases or subleases (collectively, the “ Leases ”) to any of the Acquired Companies (collectively, the “ Leased Real Property ,” and together with the Owned Real Property, the “ Real Property ”). None of the Acquired Companies has leased, subleased or otherwise granted any rights to the use or occupation of any portion of the Real Property, which is currently in effect. (b) Each applicable Acquired Company holds a valid and existing leasehold interest under each of the Leases to which it is a party for the terms set forth therein. The Acquired Companies have made available to Buyer a complete and accurate copy of each of the Leases, including all amendments thereto. (c) The Acquired Companies own each parcel of Owned Real Property as set forth in Section 4.12(a) of the Disclosure Letter, and the Acquired Companies own each of the items of tangible personal property reflected on the Acquisition Balance Sheet or acquired thereafter (except for assets reflected thereon or acquired thereafter that have been disposed of in the ordinary course of business consistent with past practice since the date of the Acquisition Balance Sheet), free and clear of all Liens, except for Liens identified or described in Section 4.12(c) of the Disclosure Letter, and except for Permitted Liens. The tangible personal property is sufficient, in all material respects, for the operation of the business as currently conducted by the Acquired Companies. 4.13 Accounts Receivable . The accounts receivable reflected on the Acquisition Balance Sheet and accounts receivable arising after the date of the Acquisition Balance Sheet and reflected on the books and records of the Acquired Companies represent valid obligations arising from sales actually made. The accounts receivable reflected on the Acquisition Balance Sheet are stated thereon in accordance with GAAP, consistently applied, subject to: (a) normal year end adjustments; and (b) the absence of disclosures normally made in footnotes. 4.14 Inventories . The inventories reflected on the Acquisition Balance Sheet are stated thereon in accordance with GAAP, consistently applied, subject to: (a) normal year end adjustments, and (b) the absence of disclosures normally made in footnotes.
(a) Section 4.15(a) of the Disclosure Letter sets forth a list of all registered Intellectual Property, pending applications for registration of Intellectual Property and material unregistered Intellectual Property (other than Trade Secrets) of the Acquired Companies. Section 4.15(b) of the Disclosure Letter sets forth all written licenses (excluding Off-the-Shelf Software and end user licenses for mass market Software) pursuant to which any of the Acquired Companies is a party either as a licensee or licensor and any other material agreements under which the Acquired Companies grant or receive any rights to Intellectual Property.
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(b) The Acquired Companies own and possess all, right, title and interest in and to, or have a valid and enforceable right or license to use the Company Intellectual Property as currently being used. (c) Except for the Permitted Liens, the Company Intellectual Property is not subject to any Liens and is not subject to any restrictions or limitations regarding use or disclosure other than pursuant to the written license agreements disclosed in Section 4.15(b) of the Disclosure Letter. (d) The Company Intellectual Property owned by any of the Acquired Companies and the Company Intellectual Property used by any of the Acquired Companies, is valid, subsisting, in full force and effect, and has not been cancelled, expired or abandoned. (e) None of the Acquired Companies has infringed, misappropriated or otherwise conflicted with, any Intellectual Property of any third party. None of the Acquired Companies has received in the past three (3) years any written notice regarding any of the foregoing, including, without limitation, any demands or offers to license any Intellectual Property from any third party. (f) No third party is infringing or has infringed, misappropriated or otherwise violated any of the Company Intellectual Property. No such claims have been brought or threatened in writing against any third party by any of the Acquired Companies. 4.16 Contracts . Section 4.16 of the Disclosure Letter lists all of the currently effective written agreements or binding oral agreements (including a description of the material terms of such oral agreements) of the following types to which any of the Acquired Companies is a party or by which any material assets of any of the Acquired Companies are bound or are subject (it being understood that subject to Section 8.1.5, Sellers’ Representative shall be permitted to provide Buyer with a supplement to Section 4.16 of the Disclosure Letter to reflect the entering into, or amendment, supplement or other modification of, any such agreements in the ordinary course of business after the date hereof and prior to the Closing Date): (a) Contracts or group of related Contracts, other than purchase orders entered into in the ordinary course of business consistent with past practice, which involve commitments to make capital expenditures or which provide for the purchase of assets, goods or services by any of the Acquired Companies from any one Person under which the undelivered balance of such goods or services has a purchase price in excess of One Hundred Thousand Dollars ($100,000); (b) Contracts or group of related Contracts, other than sales orders entered into in the ordinary course of business consistent with past practice, which provide for the sale of goods or services by any Acquired Company and under which the undelivered balance of such goods or services has a sale price in excess of One Hundred Thousand Dollars ($100,000); (c) Contracts relating to Indebtedness of any Acquired Company or the granting by any Acquired Company of a Lien on any of its assets;
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(e) joint venture agreements, partnership agreements, and limited liability company agreements and each similar type of Contract (however named) involving a sharing of profits, losses, costs or liabilities with any other Person; (f) Contracts with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(h) Contracts not otherwise disclosed herein which limit the freedom of any Acquired Company to engage in any business or compete with any Person; (i) Contracts pursuant to which any Acquired Company is a lessor or a lessee of any personal or real property, or holds or operates any tangible personal property owned by another Person, except for any such leases under which the aggregate annual rent or lease payments do not exceed Twenty Five Thousand Dollars ($25,000); (j) stock option Contracts, warrants and convertible securities for the purchase or issuance of capital stock of any Acquired Company; (k) Contracts restricting the transfer of capital stock of any Acquired Company, obligating any Acquired Company to issue or repurchase shares of its capital stock, or relating to the voting of stock or the election of directors of any Acquired Company; (l) Contracts for the sale, assignment, transfer or other disposition of assets involving a purchase price (in a single transaction or a series of related transactions) in excess of One Hundred Thousand Dollars ($100,000) and under which any Acquired Company has any continuing liability or obligation; (m) Contracts with any officer, director, shareholder or Affiliate of the Company;
Copies of each Contract required to be identified in Section 4.16 of the Disclosure Letter, including all amendments thereto (collectively, the “ Material Contracts ”) have been made available to Buyer. All of the Material Contracts are in full force and effect and are enforceable against the Acquired Company that is a party thereto and the other parties thereto, in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights or by principles of equity. Each of the Acquired Companies (as the case may be) has performed in all material respects all obligations required to be performed by it pursuant to such Material Contracts, and there are no existing written threats of default, breaches or violations of any of such Material Contracts by any other party thereto.
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4.17 Litigation . There are no Actions pending against or brought by, threatened in writing against or threatened in writing to be brought by, any of the Acquired Companies that: (a) involve more than Twenty Thousand Dollars ($20,000) in claims or damages individually; (b) could result in the entry of equitable relief; or (c) could reasonably be expected to prevent or materially delay the consummation of the transactions contemplated hereby; and no such claim has been settled since January 1, 2006. Section 4.17 of the Disclosure Letter lists all Claims of any of the Acquired Companies pending as of the date hereof against any Seller. 4.18 Material Suppliers and Customers . No customer which accounted for more than five percent (5%) of sales (the “ Material Customers ”), and no supplier which accounted for more than five percent (5%) of purchases (the “ Material Suppliers ”) in the fiscal year ended December 31, 2006 has delivered to any Acquired Company any written notice which cancelled, materially modified, or otherwise terminated its relationship with such Acquired Company or materially decreased its services, supplies or materials to any Acquired Company or its usage or purchase of the services or products of such Acquired Company, nor has any of the Material Customers or the Material Suppliers indicated its intention in writing to such Acquired Company to do any of the foregoing. 4.19 Product Warranty . Section 4.19 of the Disclosure Letter sets forth the Product Warranty Claims history of the Acquired Companies from July 1, 2006 through March 3, 2007. All product warranty claims with respect to the sale of roof vents by the Acquired Companies to Amerimax Building Products, Inc. have been settled or otherwise resolved pursuant to the settlement agreement with Amerimax Building Products, Inc. 4.20 No Additional Representations . EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE 4 , THE COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF ANY OF THE ACQUIRED COMPANIES OR ANY OF THE ACQUIRED COMPANIES’ ASSETS, AND THE COMPANY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO ANY OF THE ACQUIRED COMPANIES’ ASSETS, OR AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, IT BEING UNDERSTOOD THAT SUCH SUBJECT ASSETS ARE BEING ACQUIRED “AS IS, WHERE IS” ON THE CLOSING DATE, AND IN THEIR PRESENT CONDITION, AND BUYER SHALL RELY ON ITS OWN EXAMINATION AND INVESTIGATION THEREOF. IN ADDITION AND WITHOUT LIMITATION TO THE FOREGOING, OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE 3 WITH RESPECT TO SELLERS AND ARTICLE 4 WITH RESPECT TO THE COMPANY, SELLERS AND THE COMPANY DO NOT MAKE, AND HAVE NOT MADE, ANY REPRESENTATIONS OR WARRANTIES RELATING TO SELLERS, THE ACQUIRED COMPANIES OR THE BUSINESSES OF THE ACQUIRED COMPANIES OR OTHERWISE, IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE, INCLUDING, WITHOUT LIMITATION, THOSE REGARDING COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS, AND INFORMATION IN ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS. NO PERSON HAS BEEN AUTHORIZED BY SELLERS OR THE
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COMPANY TO MAKE ANY REPRESENTATION OR WARRANTY RELATING TO SELLERS, THE ACQUIRED COMPANIES OR THE BUSINESSES OF THE ACQUIRED COMPANIES OR OTHERWISE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED HEREBY AND, IF MADE, SUCH REPRESENTATION OR WARRANTY MAY NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY SELLERS OR THE COMPANY AND SHALL NOT BE DEEMED TO HAVE BEEN MADE BY SELLERS OR THE COMPANY. ARTICLE 5 Representations and Warranties of Buyer Buyer represents and warrants to the Company and each Seller as follows: 5.1 Organization; Authorization . Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Indiana. Buyer has all requisite corporate power and authority to execute, deliver and perform this Agreemen |
AGREEMENTS / CONTRACTS
CLAUSES
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