STOCK PURCHASE
AGREEMENT
This Stock Purchase Agreement ("Agreement") is
made and entered into as of May 2, 2008, by and between COMMERCIAL
NATIONAL FINANCIAL CORPORATION, a Pennsylvania corporation
("Buyer"), and LOUIS A. STEINER, BARBARA J. STEINER,
SARAH S. SHIREY, BARBARA S. HOLMES, LOUIS T. STEINER, DOROTHY S.
HUNTER, COMMERCIAL BANK & TRUST OF PA, TRUSTEE OF THE GRANT E.
HUNTER CREDIT SHELTER TRUST UNDER WILL, GREGG E. HUNTER, AND GRANT
W. HUNTER (individually a "Seller" and collectively,
"Sellers").
RECITALS
Sellers desire to sell, and Buyer desires to
purchase, all of the issued and outstanding shares (the "Shares")
of capital stock of Ridge Properties, Inc., a Pennsylvania
corporation (the "Company"), for the consideration and on the terms
set forth in this Agreement.
AGREEMENT
The parties,
intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of
this Agreement, the following terms have the meanings specified or
referred to in this Section 1:
"Breach" --a "Breach" of a representation, warranty,
covenant, obligation, or other provision of this Agreement or any
instrument delivered pursuant to this Agreement will be deemed to
have occurred if there is or has been (a) any inaccuracy in or
breach of, or any failure to perform or comply with, such
representation, warranty, covenant, obligation, or other provision,
or (b) any claim (by any Person) or other occurrence or
circumstance that is or was inconsistent with such representation,
warranty, covenant, obligation, or other provision, and the term
"Breach" means any such inaccuracy, breach, failure, claim,
occurrence, or circumstance.
"Buyer" --as defined in the first paragraph of this
Agreement.
"Closing" --as defined in Section 2.3.
"Closing Date" --the date and time as of which the Closing
actually takes place.
"Company" --as defined in the Recitals of this
Agreement.
"Consent" --any approval, consent, ratification, waiver,
or other authorization (including any Governmental
Authorization).
"Contemplated Transactions"
--all of the transactions
contemplated by this Agreement, including:
(a) the
Company's sale, prior to Closing, of the Unity Township
Property;
(b) the
sale of the Shares by Sellers to Buyer;
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the execution,
delivery, and performance of the Escrow Agreement;
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the performance
by Buyer and Sellers of their respective covenants and obligations
under this Agreement; and
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Buyer's
acquisition and ownership of the Shares.
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"Contract" --any agreement, contract, obligation, promise,
or undertaking (whether written or oral and whether express or
implied) that is legally binding.
"Damages" --as defined in Section 10.2.
"Disclosure Letter" --the disclosure letter delivered by Sellers to
Buyer concurrently with the execution and delivery of this
Agreement.
"Encumbrance" --any charge, claim, community property
interest, condition, equitable interest, lien, option, pledge,
security interest, right of first refusal, or restriction of any
kind, including any restriction on use, voting, transfer, receipt
of income, or exercise of any other attribute of
ownership.
"Environment" --soil, land surface or subsurface strata,
surface waters (including navigable waters, ocean waters, streams,
ponds, drainage basins, and wetlands), groundwaters, drinking water
supply, stream sediments, ambient air (including indoor air), plant
and animal life, and any other environmental medium or natural
resource.
"Environmental Liabilities"
--any cost, damages, expense,
liability, obligation, or other responsibility arising from or
under Environmental Law and consisting of or relating
to:
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any
environmental matters or conditions (including on-site or off-site
contamination and regulation of chemical substances or
products);
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fines,
penalties, judgments, awards, settlements, legal or administrative
proceedings, damages, losses, claims, demands and response,
investigative, remedial, or inspection costs and expenses arising
under Environmental Law;
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financial
responsibility under Environmental Law for cleanup costs or
corrective action, including any investigation, cleanup, removal,
containment, or other remediation or response actions ("Cleanup")
required by applicable Environmental Law (whether or not such
Cleanup has been required or requested by any Governmental Body or
any other Person) and for any natural resource damages;
or
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any other
compliance, corrective, investigative, or remedial measures
required under Environmental Law.
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The terms "removal,"
"remedial," and "response action," include the types of activities
covered by the United States Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., as
amended ("CERCLA").
"Environmental Law" --any Legal Requirement that requires or relates
to:
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advising
appropriate authorities, employees, and the public of intended or
actual releases of pollutants or hazardous substances or materials,
violations of discharge limits, or other prohibitions and of the
commencements of activities, such as resource extraction or
construction, that could have significant impact on the
Environment;
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preventing or
reducing to acceptable levels the release of pollutants or
hazardous substances or materials into the Environment;
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reducing the
quantities, preventing the release, or minimizing the hazardous
characteristics of wastes that are generated;
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assuring that
products are designed, formulated, packaged, and used so that they
do not present unreasonable risks to human health or the
Environment when used or disposed of;
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protecting
resources, species, or ecological amenities;
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reducing to
acceptable levels the risks inherent in the transportation of
hazardous substances, pollutants, oil, or other potentially harmful
substances;
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cleaning up
pollutants that have been released, preventing the threat of
release, or paying the costs of such clean up or prevention;
or
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making
responsible parties pay private parties, or groups of them, for
damages done to their health or the Environment, or permitting
self-appointed representatives of the public interest to recover
for injuries done to public assets.
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"Escrow Amount" --the sum of One Hundred Thirty-One Thousand
Seven Hundred Sixty Dollars ($131,760) to be deposited into escrow
pursuant to the terms of the Escrow Agreement as described more
fully in Section 2.4(c) hereof, plus any additional
amounts that may be added pursuant to Section 2.5 of this
Agreement.
"Facilities" --any real property, leaseholds, or other
interests currently or formerly owned or operated by the Company
and any buildings, plants, structures, or equipment currently or
formerly owned or operated by the Company.
"Governmental Authorization"
--any approval, consent, license,
permit, waiver, or other authorization issued, granted, given, or
otherwise made available by or under the authority of any
Governmental Body or pursuant to any Legal Requirement.
"Governmental Body" --any:
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nation, state,
county, city, town, village, district, or other jurisdiction of any
nature;
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federal, state,
local, municipal, foreign, or other government;
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governmental or
quasi-governmental authority of any nature (including any
governmental agency, branch, department, official, or entity and
any court or other tribunal);
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multi-national
organization or body; or
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body
exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory, or taxing authority or
power of any nature.
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"Hazardous Activity" --the distribution, generation, handling,
importing, management, manufacturing, processing, production,
refinement, Release, storage, transfer, transportation, treatment,
or use (including any withdrawal or other use of groundwater) of
Hazardous Materials in, on, under, about, or from the Facilities or
any part thereof into the Environment, and any other act, business,
operation, or thing that increases the danger, or risk of danger,
or poses an unreasonable risk of harm to persons or property on or
off the Facilities, or that may affect the value of the Facilities
or the Company.
"Hazardous Materials"
--any waste or other substance that
is listed, defined, designated, or classified as, or otherwise
determined to be, hazardous, radioactive, or toxic or a pollutant
or a contaminant under or pursuant to any Environmental Law,
including any admixture or solution thereof, and specifically
including petroleum and all derivatives thereof or synthetic
substitutes therefor and asbestos or asbestos-containing
materials.
"IRC" --the Internal Revenue Code of 1986 or any
successor law, and regulations issued by the IRS pursuant to the
Internal Revenue Code or any successor law.
"IRS" --the United States Internal Revenue Service or
any successor agency, and, to the extent relevant, the United
States Department of the Treasury.
"Knowledge" --an individual will be deemed to have
"Knowledge" of a particular fact or other matter if:
(a) such
individual is actually aware of such fact or other matter;
or
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a prudent
individual could be expected to discover or otherwise become aware
of such fact or other matter in the course of conducting a
reasonably comprehensive investigation concerning the existence of
such fact or other matter.
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A Person (other
than an individual) will be deemed to have "Knowledge" of a
particular fact or other matter if any individual who is serving,
or who has at any time served, as a
director,
officer, partner, executor, or trustee of such Person (or in any
similar capacity) has, or at any time had, Knowledge of such fact
or other matter.
"Legal Requirement" --any federal, state, local, municipal, foreign,
international, multinational, or other administrative order,
constitution, law, ordinance, principle of common law, regulation,
statute, or treaty.
"Order" --any award, decision, injunction, judgment,
order, ruling, subpoena, or verdict entered, issued, made, or
rendered by any court, administrative agency, or other Governmental
Body or by any arbitrator.
"Organizational Documents"
--(a) the articles or
certificate of incorporation and the bylaws of a corporation;
(b) the partnership agreement and any statement of partnership
of a general partnership; (c) the limited partnership
agreement and the certificate of limited partnership of a limited
partnership; (d) any charter or similar document adopted or
filed in connection with the creation, formation, or organization
of a Person; and (e) any amendment to any of the
foregoing.
"Person" --any individual, corporation (including any
non-profit corporation), general or limited partnership, limited
liability company, joint venture, estate, trust, association,
organization, labor union, or other entity or Governmental
Body.
"Proceeding" --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
Governmental Body or arbitrator.
"Release" --any spilling, leaking, emitting, discharging,
depositing, escaping, leaching, dumping, or other releasing into
the Environment, whether intentional or unintentional.
"Representative" --with respect to a particular Person, any
director, officer, employee, agent, consultant, advisor, or other
representative of such Person, including legal counsel,
accountants, and financial advisors.
"Securities Act" --the Securities Act of 1933 or any successor
law, and regulations and rules issued pursuant to that Act or any
successor law.
"Sellers" --as defined in the first paragraph of this
Agreement.
"Shares" -- as defined in the Recitals of this
Agreement.
"Tax" and "Taxes" --any tax(es) (including any income tax, capital
gains tax, capital stock tax, franchise tax, loans tax, employment
tax, social security tax, withholdings, sales tax, use tax,
property tax, business tax, gross receipts tax, value-added tax,
gift tax, estate tax or other tax), levy, assessment, tariff, duty
(including any custom duty), deficiency, or other fee, and any
related charge or amount (including any fine, penalty, interest, or
addition to tax), imposed, assessed, or collected by or under the
authority of any Governmental Body or payable pursuant to any
tax-sharing agreement or any other Contract relating to the sharing
of payment of any such tax, levy, assessment, tariff, duty,
deficiency, or fee.
"Tax Opinion" --as defined in Section 2.4(a)(iii).
"Tax Return" --any return (including any information return),
report, statement, schedule, notice, form, or other document or
information filed with or submitted to, or required to be filed
with or submitted to, any Governmental Body in connection with the
determination,
assessment,
collection, or payment of any Tax or in connection with the
administration, implementation, or enforcement of or compliance
with any Legal Requirement relating to any Tax.
"Threat of Release" --a substantial likelihood of a Release that may
require action in order to prevent or mitigate damage to the
Environment that may result from such Release.
"Threatened" --a claim, Proceeding, dispute, action, or other
matter will be deemed to have been "Threatened" if any demand or
statement has been made (orally or in writing) or any notice has
been given (orally or in writing), or if any other event has
occurred or any other circumstances exist, that would lead a
prudent Person to conclude that such a claim, Proceeding, dispute,
action, or other matter is likely to be asserted, commenced, taken,
or otherwise pursued in the future.
"Unity Township Property"
--as defined in Section
3.4(a)(i).
2. SALE
AND TRANSFER OF SHARES; CLOSING
2.1 SHARES
Subject to the terms and conditions of this
Agreement, at the Closing, Sellers will sell and transfer the
Shares to Buyer, and Buyer will purchase the Shares from
Sellers.
2.2 PURCHASE
PRICE
The purchase price (the "Purchase Price") for
the Shares will be $1,317,600.
2.3 CLOSING
The purchase and sale (the "Closing") provided
for in this Agreement will take place at the offices of Buyer's
counsel at 1500 One PPG Place, Pittsburgh, PA, at 10:00 a.m. (local
time) on April 24, 2008, or at such other time and place as the
parties may agree. Subject to the provisions of Section 9, failure
to consummate the purchase and sale provided for in this Agreement
on the date and time and at the place determined pursuant to this
Section 2.3 will not result in the termination of this Agreement
and will not relieve any party of any obligation under this
Agreement.
2.4 CLOSING
OBLIGATIONS
At the Closing:
(a) Sellers
will deliver to Buyer:
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certificates
representing the Shares, duly endorsed (or accompanied by duly
executed stock powers), for transfer to Buyer;
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a certificate
executed by Sellers representing and warranting to Buyer that each
of Sellers' representations and warranties in this Agreement was
accurate in all respects as of the date of this Agreement and is
accurate in all respects as of the Closing Date as if made on the
Closing Date (giving full effect to any supplements to the
Disclosure Letter that were delivered by Sellers to Buyer prior to
the Closing Date in accordance with Section 5.5); and
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a tax opinion
from Buchanan Ingersoll & Rooney, P.C. addressing the question
of whether the Company will experience an income tax event for
federal income tax purposes, including but not limited to the
recognition of any taxable income or gain, as a result of a sale of
the Shares by the Sellers to Buyer (the "Tax
Opinion"). The Tax Opinion will be in a form reasonably
acceptable to Buyer, and will be in the form of written tax advice
to Buyer in compliance with the requirements of "covered opinions"
and "reliance opinions" under the IRS Circular 230 regulations as
in effect on the Closing Date ("Circular 230"). The
opinions and advice in the Tax Opinion will conclude that the
federal tax issues addressed "should" be resolved as described in
the Tax Opinion, meaning a confidence level which exceeds the "more
likely than not (a greater than 50% likelihood)" confidence level
required for reliance opinions pursuant to Circular
230. The Buyer intends to hold the Shares indefinitely
and, consequently, the Tax Opinion may rely upon the assumption
that the Buyer will continue to hold the Shares and will not
liquidate or merge with the Company for at least five years from
the Closing Date.
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(b) Buyer
will deliver to the Sellers an aggregate amount equal to the
Purchase Price less the Escrow Amount by bank cashier's or
certified check payable to the order of (or by wire transfer to
accounts specified by) the individual Sellers listed in Schedule 1
attached hereto, which aggregate amount shall be divided into the
amounts set forth after each individual Seller's name in Schedule
1;
(c) Buyer
and Sellers agree to enter into an escrow agreement in the form
attached hereto as Exhibit A.(the "Escrow Agreement") Buyer agrees
to pay to the escrow agent named in the Escrow Agreement (the
"Escrow Agent"), at the Closing the Escrow Amount in cash payable
by wire transfer or delivery of other immediately available funds
for deposit into the escrow account. The Escrow Amount plus any
interest accrued thereon will be available to satisfy any Taxes
relating to the existence and operation of the Company before the
Closing which have not otherwise been provided for, and to satisfy
all other amounts owed by Sellers to Buyer under this Agreement,
all in accordance with the terms of the Escrow
Agreement. The Escrow Agreement shall remain in place
for a term of twelve (12) months from the Closing Date or, if
longer, until such time as any claim made against the Escrow Amount
within such twelve month period is finally and conclusively
resolved.
(d) Buyer
and Sellers shall comply with all requirements of Section 2.5 to be
performed on or before the Closing Date.
2.5 PRE-CLOSING
TAXES
Buyer and Sellers agree to the following
procedure to address the Sellers' responsibility to pay the
Company's federal income taxes and Pennsylvania income, capital
stock and loans taxes (if applicable), plus any related charge or
amount (including any fine, penalty, interest, or addition to tax),
arising in or attributable to the period (the "Short Period")
beginning on July 1, 2007 and ending on the Closing Date
(collectively, the "Pre-Closing Taxes") : (i) on or before the
Closing Date, (A) the Sellers will provide to Buyer their estimate,
including a detailed calculation, of the Company's liability for
Pre-Closing Taxes; (B) the Buyer will review the Sellers' estimate,
and the Sellers and the Buyer will in good faith, jointly determine
an estimated amount of the Company's liability for Pre-Closing
Taxes; and (C) the Sellers shall cause a sum of cash at least equal
to the amount of the jointly determined estimate of Pre-Closing
Taxes to remain in the Company's bank account(s) as of the Closing
Date (the "Tax Account"); and (ii) after the Closing Date, (1) the
Buyer shall cause the Company to prepare and file federal and state
Tax returns for the Short Period; (2) the Buyer shall cause the
funds remaining in the Company's Tax Account to be used to pay the
actual Pre-Closing Taxes; (3) if the actual Pre-Closing Taxes are
greater than the funds remaining in the Company's Tax Account, such
excess amount shall be paid to the Company out of the Escrow
Account and applied by the Company for such Pre-Closing Taxes; (4)
if the actual Pre-Closing Taxes are less than the funds remaining
in the Company's Tax Account, Buyer shall cause the Company to pay
such shortfall into the Escrow Account, to be included as part of
the Escrow Amount; and (5) if the actual Pre-Closing Taxes are
greater than the funds remaining in the Company's Tax Account and
the Escrow Account, the Sellers shall jointly and severally pay and
indemnify the Buyer and Company for any such excess Pre-Closing
Taxes. If the actual Pre-Closing Taxes are greater than
the funds in the Company's Tax Account and Escrow Account, or if
for any reason the Sellers' fail to pay the Company's Pre-Closing
Taxes, the foregoing procedures and remedies shall not be
exclusive, and Buyer shall be entitled to exercise any one or more
of its remedies available under this Agreement or as otherwise
provided by law.
3. REPRESENTATIONS
AND WARRANTIES OF SELLERS
Sellers represent and warrant to Buyer as
follows:
3.1 ORGANIZATION
AND GOOD STANDING
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Part 3.1 of the
Disclosure Letter contains complete and accurate information
setting forth the identity of each stockholder and the number of
shares held by each. The Company is a corporation duly organized,
validly existing, and in good standing under the laws of
Pennsylvania, with full corporate power and authority to conduct
its business as it is now being conducted, to own or use the
properties and assets that it purports to own or use. The Company
does not do business in any state other than
Pennsylvania.
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Sellers have
delivered to Buyer copies of the Organizational Documents of the
Company, as currently in effect.
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3.2 AUTHORITY;
NO CONFLICT
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This Agreement
constitutes the legal, valid, and binding obligation of Sellers,
enforceable against Sellers in accordance with its
terms. Sellers have the absolute and unrestricted right,
power, authority, and capacity to execute and deliver this
Agreement and to perform their obligations under this
Agreement.
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Neither the
execution and delivery of this Agreement nor the consummation or
performance of any of the Contemplated Transactions will, directly
or indirectly (with or without notice or lapse of time):
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contravene,
conflict with, or result in a violation of (A) any provision
of the Organizational Documents of the Company, or (B) any
resolution adopted by the board of directors or the stockholders of
the Company;
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contravene,
conflict with, or result in a violation of, or give any
Governmental Body or other Person the right to challenge any of the
Contemplated Transactions or to exercise any remedy or obtain any
relief under, any Legal Requirement or any Order to which the
Company or any Seller, or any of the assets owned or used by the
Company, may be subject;
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contravene,
conflict with, or result in a violation of any of the terms or
requirements of, or give any Governmental Body the right to revoke,
withdraw, suspend, cancel, terminate, or modify, any
Governmental Authorization that is held by the Company
or that otherwise relates to the business of, or any of the assets
owned or used by, the Company;
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cause Buyer or
the Company to become subject to, or to become liable for the
payment of, any Tax;
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cause any of
the assets owned by the Company to be reassessed or revalued by any
taxing authority or other Governmental Body;
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contravene,
conflict with, or result in a violation or breach of any provision
of, or give any Person the right to declare a default or exercise
any remedy under, or to accelerate the maturity or performance of,
or to cancel, terminate, or modify, any Applicable Contract;
or
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result in the
imposition or creation of any Encumbrance upon or with respect to
any of the assets owned or used by the Company.
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No Seller is or will be required to give any
notice to or obtain any Consent from any Person in connection with
the execution and delivery of this Agreement or the consummation or
performance of any of the Contemplated Transactions, and the
Company, likewise will not be required to give any such notice or
obtain an such Consent.
3.3 CAPITALIZATION
The authorized equity securities of the Company
consist of 300,000 shares of common stock, par value $1.00 per
share, of which 103,516 shares are issued and outstanding and
constitute the Shares. Sellers are and will be on the Closing Date
the record and beneficial owners and holders of all of the Shares,
free and clear of all Encumbrances. No legend or other
reference to any purported Encumbrance appears upon any certificate
representing equity securities of the Company. All of the
outstanding equity securities of the Company have been duly
authorized and validly issued and are fully paid and nonassessable.
There are no Contracts relating to the issuance, sale, or transfer
of any equity securities or other securities of the Company. None
of the outstanding equity securities or other securities of the
Company was issued in violation of the Securities Act or any other
Legal Requirement.
3.4 ASSETS
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The Company's
assets consist entirely of the following, and the Company does not
own, lease, license, control or otherwise have any interest in or
power to control any other assets:
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the real estate
located in Unity Township, Westmoreland County, Pennsylvania on
which is constructed a building presently leased to the United
State Postal Service, with an adjoining parking lot, the address of
which property is 2061 Route 130 ("Unity Township
Property");
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131,760 shares
of the common stock of Commercial National Financial Corporation;
and
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cash on deposit
in the Tax Account.
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(b) At
the Closing Date, the Company's assets shall consist entirely of
the assets described in (a)(ii) and (a)(iii), above and shall not
include the Unity Township Property.
3.5 BOOKS
AND RECORDS
The books of account, minute books, stock record
books, Tax Returns and other records of the Company, all of which
have been made available to Buyer, are complete and
correct. The minute books of the Company contain
accurate and complete records of all meetings held of, and
corporate action taken by, the stockholders, the Boards of
Directors, and committees of the Boards of Directors of the
Company, and no meeting of any such stockholders, Board of
Directors, or committee has been held for which minutes have not
been prepared and are not contained in such minute books. At the
Closing, all of those books and records will be in the possession
of the Company.
3.6 TITLE
TO PROPERTIES; ENCUMBRANCES
The real property listed in Section 3.4 (a),
above, are all of the real property, leaseholds, or other interests
therein owned by the Company.
3.7 CONDITION
AND SUFFICIENCY OF ASSETS
[Intentionally Omitted]
3.8 NO
LIABILITIES
Except for the Company's Pre-Closing Taxes to be
paid in the manner set forth in Section 2.5: (i) the Company is not
subject to any liability or obligation of whatever kind or nature
(whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due),
including but not limited to any liability for Taxes ("Liability");
and (ii) the Company shall not be subject to any such
Liability on or after the Closing Date and, in particular, the
Company shall not have, on or after the Closing Date, any such
Liability as a result of any of the Contemplated Transactions,
including but not limited to the disposition of the Unity Township
Property, as required by Section 5.8 hereof.
3.9 TAXES
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The Company has
filed or caused to be filed (on a timely basis since January 1,
2000) all Tax Returns that are or were required to be filed by the
Company, either separately or as a member of a group of
corporations, pursuant to applicable Legal Requirements. Sellers
have delivered to Buyer copies of all such Tax Returns filed since
January 1, 2002. The Company has paid all Taxes that have or may
have become due pursuant to those Tax Returns or otherwise, or
pursuant to any assessment received by Sellers or the
Company. No Taxes are being contested and no Tax Returns
are being, or have been, audited. No request has been received from
any taxing body to extend the statute of limitations with respect
to any Tax Return filed or any Taxes.
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There exists no
proposed Tax assessment against the Company. All Taxes
that the Company is or was required by Legal Requirements to
withhold or collect have been duly withheld or collected and have
been paid to the proper Governmental Body or other
Person.
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All Tax Returns
filed by the Company are true, correct, and complete.
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Based on the
assumption that the Buyer intends to hold the Shares indefinitely
and will not liquidate or merge with the Company for at least five
years from the Closing Date, the Company will not be subject to
federal, state or local Tax as a result of the sale of the Shares
hereunder.
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Except for the
Company's Pre-Closing Taxes for the Short Period to be paid in the
manner set forth in Section 2.5, the Company has paid, and there is
no liability for any Tax related to, (1) the Company's operations
through the Closing Date, (2) the Company's ownership of the Unity
Township Property or any other real property owned by the Company
prior to the Closing Date, and/or (3) the Company's disposition of
the Unity Township Property and all other Company assets disposed
of through the Closing Date.
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3.10 EMPLOYEES
The Company has had no employees for the past
five years.
3.11 COMPLIANCE
WITH LEGAL REQUIREMENTS; GOVERNMENTAL AUTHORIZATIONS
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the Company is,
and at all times since January 1, 2002 has been, in full compliance
with each Legal Requirement that is or was applicable to it or to
the conduct or operation of its business or the ownership or use of
any of its assets;
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no event has
occurred or circumstance exists that (with or without
notice or lapse of time) (A) may constitute or result in
a violation by the Company of, or a failure on the part of the
Company to comply with, any Legal Requirement, or (B)
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may give rise
to any obligation on the part of the Company to undertake, or to
bear all or any portion of the cost of, any remedial action of any
nature; and
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the Company has
not received, at any time since January 1, 2002, any notice or
other communication (whether oral or written) from any Governmental
Body or any other Person regarding (A) any actual, alleged,
possible, or potential violation of, or failure to comply with, any
Legal Requirement, or (B) any actual, alleged, possible, or
potential obligation on the part of the Company to undertake, or to
bear all or any portion of the cost of, any remedial action of any
nature.
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The Company is
not required to obtain, and has not obtained and does not hold, any
Governmental Authorization, and the Company can lawfully conduct
its business and manage its investments in the manner it currently
conducts such business and manages such investments without any
Government Authorization.
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3.12 LEGAL
PROCEEDINGS; ORDERS
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There is no
pending Proceeding:
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that has been
commenced by or against the Company or that otherwise relates to or
may affect the business of, or any of the assets owned or used by,
the Company; or
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that
challenges, or that may have the effect of preventing, delaying,
making illegal, or otherwise interfering with, any of the
Contemplated Transactions.
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To the Knowledge of Sellers and the Company, (1)
no such Proceeding has been Threatened, and (2) no event has
occurred or circumstance exists that may give rise to or serve as a
basis for the commencement of any such Proceeding.
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there is no
Order to which any of the Company, or any of the assets owned or
used by the Company, is subject;
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no Seller is
subject to any Order that relates to the business of,
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