STOCK PURCHASE
AGREEMENT
for the acquisition of
J
ONES
E
XHAUST
S
YSTEMS
, I
NC.
by and among
AERO PERFORMANCE PRODUCTS,
INC.,
DAVID LANDRETH & RALPH
AMOS,
and
JONES EXHAUST SYSTEMS,
INC.
Dated December 17, 2008
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
1
1.1
Definitions.
1
ARTICLE 2
PURCHASE AND SALE OF SHARES
3
2.1
Purchase and Sale of Shares
3
2.2
Share Escrow
3
2.3
Purchase Price
3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE
SELLERS
4
3.1
Organization, Existence and Good
Standing
4
3.2
Subsidiaries and Affiliated
Partnerships
5
3.3
Organization, Existence and Good Standing
of the Company Subsidiaries
4
3.4
Capitalization
4
3.5
Company Debt
5
3.6
Power and Authority
5
3.7
No Violation; Consents and
Approvals
5
3.8
Legal Proceedings
5
3.9
No Undisclosed Liabilities
6
3.10
Absence of Changes
6
3.11
Contracts
6
3.12
Compliance With Law; Governmental
Authorizations
6
3.13
Insurance
6
3.14
Tax Matters
6
3.15
Employee Benefit Plans
6
3.16
Licenses and Regulatory
Approvals
7
3.17
Financial Statements.
7
3.18
Title to Properties
8
3.19
Real Property
8
3.20
Intellectual Property
8
3.21
Commissions and Fees
9
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
BUYER
9
4.1
Organization, Existence and Good
Standing
9
4.2
Power and Authority
9
4.3
Financing
9
TABLE OF CONTENTS
(continued)
Page
4.4
Legal Proceedings
9
4.5
No Violation; Consents and
Approvals
10
4.6
Compliance with Law; Governmental
Authorizations
10
4.7
Commissions and Fees.
10
ARTICLE 5
ACCESS TO INFORMATION AND
DOCUMENTS
10
5.1
Access to Information.
10
5.2
Return of Records
11
ARTICLE 6
COVENANTS OF THE COMPANY
11
6.1
Preservation of Business
11
6.2
Material Transactions
11
6.3
Accounting Methods
12
6.4
No Solicitations
12
ARTICLE 7
COVENANTS OF BUYER
12
7.1
Guarantees
12
7.2
Acquisition of Property
12
ARTICLE 8
COVENANTS OF SELLERS
13
8.1
Landreth Consulting Agreement
13
ARTICLE 9
COVENANTS OF THE SELLERS AND
BUYER
13
9.1
Public Disclosures
13
9.2
Other Actions
13
9.3
Other Filings and Consents
14
9.4
Tax Matters
14
ARTICLE 10
TERMINATION, AMENDMENT AND
WAIVER
17
10.1
Termination
17
10.2
Effect of Termination
17
10.3
Amendment
17
10.4
Extension; Waiver
17
10.5
Expenses and Fees
18
ARTICLE 11
CONDITIONS PRECEDENT
18
11.1
Conditions Precedent to Obligations of
Buyer
18
11.2
Conditions Precedent to Obligations of
the Sellers
18
TABLE OF CONTENTS
(continued)
Page
ARTICLE 12
CLOSING
19
12.1
Time and Place of Closing
19
12.2
Transactions at Closing
20
ARTICLE 13
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; INDEMNIFICATION 21
13.1
Survival.
21
13.2
Indemnification by the
Sellers.
21
13.3
Indemnification by Buyer.
21
13.4
Notice and Defense.
22
13.5
Exclusive Remedy.
22
13.6
Limitation on Losses.
22
ARTICLE 14
MISCELLANEOUS
23
14.1
Scope of Representations and
Warranties
23
14.2
Notices
23
14.3
Further Assurances
24
14.4
Governing Law
25
14.5
Captions
25
14.6
Integration of Schedules
25
14.7
Entire Agreement
25
14.8
Amendment
25
14.9
Counterparts
25
14.10
Binding Effect; No Third Party
Beneficiaries
25
14.11
Assignment.
25
STOCK PURCHASE
AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "
Agreement "), entered into as of December 17, 2008, by and
among AERO PERFORMANCE PRODUCTS, INC., a Nevada corporation ("
Buyer "), DAVID LANDRETH and RALPH AMOS ("
Sellers "), and JONES EXHAUST SYSTEMS, INC. (the
“Company” );
W I T N E S S
E T H :
WHEREAS, Jones Exhaust Systems,
Inc. , a Tennessee company, is involved in the business of
manufacturing and marketing on a wholesale basis automotive parts
for exhaust systems;
WHEREAS, the Sellers own all of the
issued and outstanding shares of capital stock of the Company;
and
WHEREAS, the parties hereto desire to
enter into this Agreement pursuant to which the Sellers shall sell
and transfer to Buyer, and Buyer shall purchase from the Sellers,
all of the issued and outstanding shares of capital stock of the
Company (the " Shares "), upon the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the
foregoing, and the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto do hereby agree
as follows:
ARTICLE 1
DEFINITIONS
1.1
Definitions . The following terms, as used herein, shall
have the following meanings:
(a)
" Affiliates " shall mean any
Person directly or indirectly controlling, controlled by, or under
common control with, the Person with respect to whom the term
"Affiliate" is used.
(b)
" Closing " shall mean the
consummation of the transactions provided for in this
Agreement.
(c)
" Closing Date " shall mean the
date on which the Closing occurs pursuant to Article 11
hereof.
(d)
" Code " shall mean the Internal
Revenue Code of 1986, as amended, and the regulations thereunder,
or any subsequent legislative enactment thereof, as in effect from
time to time.
- 1 -
(e)
" GAAP " shall mean generally
accepted accounting principles as in effect from time to time in
the United States.
(f)
" Governmental Entity " shall mean
(i) the United States of America, (ii) any state,
commonwealth, territory or possession of the United States of
America and any political subdivision thereof (including counties,
municipalities and the like) or (iii) any agency, authority or
instrumentality of any of the foregoing, including any court,
tribunal, department, bureau, commission or board.
(g)
" To the knowledge ," " to the
best knowledge " or any similar phrase shall be deemed to refer
to the actual knowledge of the Chief Executive Officer and Chief
Financial Officer of a party.
(h)
" Material Adverse Effect " shall
mean, when used in connection with a party, any change, effect,
event or occurrence that has, or would have, individually or in the
aggregate, a material adverse impact on the business or financial
position of such party and its subsidiaries taken as a whole;
provided , however , that "Material Adverse Effect"
shall be deemed to exclude (i) changes resulting from the
announcement of the transactions contemplated by this Agreement and
(ii) changes in general economic conditions or changes affecting
the industries generally in which such party operates.
(i)
" Person " shall mean an
individual, corporation, partnership, limited liability company,
trust or unincorporated organization, or a government or any agency
or political subdivision thereof.
(j)
" Subsidiary " shall mean, as to
any Person, any other Person of which at least 50% of the equity
and voting interests are owned, directly or indirectly, by such
first Person.
(k)
" Tax " (and, with correlative
meaning, " Taxes " and " Taxable ") means all
federal, state, local or foreign income, gross receipts, windfall
profits, severance, property, production, sales, use, license,
excise, franchise, capital, transfer, employment, withholding and
other taxes and assessments, together with any interest, additions
or penalties with respect thereto and any interest in respect of
such additions or penalties, and any interest, additions and
penalties with respect to a failure to file a Tax Return or a
failure to file a complete and correct Tax Return and any interest
in respect of such additions or penalties.
(l)
" Tax Returns " means all federal,
state, local and foreign income and franchise Tax returns and Tax
reports (including any attached schedules) and other Tax statements
and other similar filings required to be filed, including any
information return (including, without limitation, any information
return required to be filed under Section 60501 of the Code), claim
for refund, amended return or declaration of estimated
Tax.
- 2 -
ARTICLE 2
PURCHASE AND SALE OF SHARES
2.1
Purchase and Sale of Shares
. Subject to the terms and
conditions hereinafter set forth, the Sellers shall, at Closing,
sell, assign, transfer, convey and deliver to Buyer the Shares,
free and clear of all Liens (as hereinafter defined). Such
sale, assignment, transfer, conveyance and delivery shall be
evidenced by share certificates duly endorsed in blank or by
instruments of transfer reasonably satisfactory in form and
substance to Buyer and its counsel.
2.2
Escrow of Shares
. Upon the execution of this
Agreement, Sellers will place their Shares in escrow pending the
Closing with Seller’s attorney, Terry Abernathy. The
terms of escrow shall be such as are reasonable and generally
accepted in transactions of a similar nature to the transaction
contemplated herein to secure the delivery of the Shares to Buyer
at Closing, or the redelivery of the Shares to Sellers in the event
this Agreement is terminated, or the transaction contemplated
herein otherwise fails to close as provided in this Agreement.
2.3
Purchase Price .
(a)
in consideration of the sale, assignment,
transfer, conveyance and delivery of the Shares and in reliance
upon the representations and warranties made herein by the Sellers,
Buyer, in full payment for the Shares and the non-competition
covenant contained herein, shall pay to the Sellers the aggregate
amount of Two Million Dollars ($2,000,000) (the " Purchase
Price "), payable as follows:
(i)
Buyer shall pay Sellers the sum of
Twenty-Five Thousand Dollars ($25,000) by certified check or wire
transfer upon the execution of this Agreement. In the event
this Agreement is terminated or the Closing does not occur, this
initial payment shall be non-refundable, unless the termination or
failure to close is the result of a material breach of this
Agreement by one or both Sellers.
(ii)
At Closing, Buyer shall pay to Sellers by
wire transfer the balance of the Purchase Price, subject to
any adjustments to be made in accordance with the provisions set
forth in Section 2.3(b) and Section 12.1(a) hereof.
(b)
To the extent the Company’s
outstanding total balance owed under the Lines of Credit and under
the Term Loan (as identified in Section 3.5 hereof) is less than
One Million One Hundred Thousand Dollars ($1,100,000) on the
Closing Date, the Purchase Price shall be increased by the amount
the outstanding balance is less than $1,100,000.
(c)
The amount of the Purchase Price to be
allocated to the Shares and the non-competition covenant shall be
as disclosed in Schedule 2.3(c) attached hereto.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers hereby represents and
warrants to Buyer as follows:
3.1
Organization, Existence and Good
Standing . The Company
is a corporation duly organized, validly existing and in good
standing under the laws of the State of Tennessee and has all
necessary corporate power to own its properties and assets and to
carry on its business as presently conducted. The Company is
duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions in which the character of the
property owned, leased or operated or the nature of the business
transacted by it makes qualification necessary, except where
failure to so qualify would not have a Material Adverse Effect with
respect to the Company. The Sellers have heretofore made
available to Buyer complete and correct copies of the Company's
certificate of incorporation and bylaws.
3.2
Subsidiaries and Affiliated
Partnerships . Schedule
3.2 attached hereto lists all Subsidiaries of the Company
(individually, a " Company Subsidiary ", and collectively,
the " Company Subsidiaries ") and their respective
jurisdictions of incorporation or organization.
3.3
Organization, Existence and Good
Standing of the Company Subsidiaries . Each Company Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of
its respective jurisdiction of incorporation or organization.
Each Company Subsidiary has all necessary corporate power to
own its properties and assets and to carry on its business as
presently conducted.
3.4
Capitalization .
(a)
The Company's authorized capital stock
consists of (i) 1,000 shares of common stock, par value $1.00
per share (the " Company Common Stock "). As of the
date hereof, all shares of Company Common Stock are issued and
outstanding, and no shares of Company Preferred Stock are issued
and outstanding. All of the issued and outstanding shares of
Company Common Stock are duly authorized, validly issued, fully
paid and nonassessable.
(b)
All of the issued and outstanding shares
of capital stock of the Company are owned by Sellers, and will, at
Closing, be free and clear of all Liens and preemptive or other
rights or options of any nature whatsoever. Except for this
Agreement, there are no (i) outstanding subscriptions,
options, warrants, calls, demands, commitments, plans or agreements
to issue any additional shares of any of the Company's capital
stock or to pay any dividends on such shares, or to purchase,
redeem or retire any outstanding shares of its capital stock,
(ii) outstanding stock appreciation rights, phantom stock
rights or other instruments or obligations of the Company which
depend, in whole or in part, on the value of any of the capital
stock of the Company or the business or financial performance or
asset value of the Company or (iii) outstanding securities or
obligations which are convertible into or exchangeable for any
shares of capital stock of the Company. Each of the
outstanding shares of capital stock or interests of each of the
Company Subsidiaries is duly authorized, validly issued, fully paid
and nonassessable, and the Company's shares or interests in the
Company Subsidiaries are owned by
- 4 -
the Company or by a Company Subsidiary,
in each case free and clear of any Lien, except as set forth in
Schedule 3.4(b) attached hereto.
3.5
Company Debt . As of December 8, 2008, debt owed by the
Company is limited to A copy of the Lines of Credit Agreements are
attached hereto as Schedule 3.5.
3.6
Power and Authority
. Each of the Sellers has the
corporate power to execute, deliver and perform this Agreement and
all agreements and other documents executed and delivered, or to be
executed and delivered, by it pursuant to this Agreement.
This Agreement has been duly executed and delivered by each
of the Sellers and, assuming this Agreement constitutes a valid and
binding obligation of Buyer, is enforceable against each Seller in
accordance with its terms, except that the enforcement hereof may
be limited by (a) bankruptcy, insolvency, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect
relating to creditors' rights generally and (b) general principles
of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
3.7
No Violation; Consents and
Approvals .
(a)
Neither the execution and delivery of
this Agreement by the Sellers nor the consummation by the Sellers
of the transactions contemplated hereby will (i) violate any order,
injunction, judgment, ruling, law or regulation of any Governmental
Entity applicable to the Sellers, the Company or the Company
Subsidiaries, or (ii) except with respect to the Credit Agreement,
conflict with or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default), under (A) any agreement,
contract or other instrument binding upon the Sellers, the Company
or the Company Subsidiaries or (B) any license, franchise, permit
or other similar authorization held by the Sellers, the Company or
the Company Subsidiaries.
(b)
Except as disclosed in Schedule 3.7(b)
attached hereto, neither the execution and delivery of this
Agreement by the Sellers nor the consummation by the Sellers of the
transactions contemplated hereby will require any consent, waiver,
approval, authorization or permit of, or registration or filing
with or notification to (any of the foregoing being a "
Consent "), any Governmental Entity.
3.8
Legal Proceedings
. Except as disclosed in Schedule 3.8
attached hereto, there is no litigation, governmental investigation
or other proceeding pending or, to the knowledge of the Sellers,
threatened against the Company, its properties or business or the
transactions contemplated by this Agreement which would have a
Material Adverse Effect with respect to the Company or the
transactions contemplated hereby.
3.9
No Undisclosed Liabilities
. Except as disclosed in Schedule
3.9 attached hereto, as of the date hereof, neither the Company nor
the Company Subsidiaries has any liabilities or obligations,
whether accrued, absolute or contingent, other than (a) liabilities
and obligations that are fully reflected, accrued or reserved for
in the Interim Balance Sheet (as hereinafter defined), (b)
obligations incurred in the ordinary course of business and
consistent with past practice since the date of the Interim Balance
Sheet, and (c) other liabilities and obligations, whether
accrued,
- 5 -
absolute or contingent, that would not
have, individually or in the aggregate, a Material Adverse Effect
with respect to the Company.
3.10
Absence of Changes
. Since September 30, 2008, there has
been no change in the financial condition, results of operation,
assets or business of the Company or the Company Subsidiaries
(other than changes in the ordinary course of business) which,
individually or in the aggregate, would have a Material Adverse
Effect with respect to the Company.
3.11
Contracts . To the knowledge of the Sellers, (i) each of
the contracts and agreements to which the Company or the Company
Subsidiaries is a party or by which any of its assets or operations
may be bound is in full force and effect, except where the failure
to be in full force and effect would not have, individually or in
the aggregate, a Material Adverse Effect with respect to the
Company, and (ii) there are no existing defaults with respect to
such contracts and agreements by the Company or the Company
Subsidiaries, which defaults, individually or in the aggregate,
would have a Material Adverse Effect with respect to the
Company.
3.12
Compliance With Law; Governmental
Authorizations . Except
as disclosed on Schedule 3.12 attached hereto, to the knowledge of
the Sellers, the Company and the Company Subsidiaries have operated
their respective businesses in compliance with applicable law and
are not in violation of any order, injunction, judgment, ruling,
law or regulation of any Governmental Entity applicable to the
Company or the Company Subsidiaries, except where such failure to
comply or violation would not have a Material Adverse Effect with
respect to the Company.
3.13
Insurance . Schedule 3.13 attached hereto lists all
material insurance policies covering the assets, employees and
operations of the Company and the Company Subsidiaries as of the
date hereof, showing the insurers, limits, type of coverage, annual
premiums, deductibles and expiration dates. All such policies
are in full force and effect.
3.14
Tax Matters . The Company, or a representative of the
Company on its behalf, has duly and timely filed (including within
any applicable extension period) with the appropriate federal,
state, local and foreign taxing authorities all material Tax
Returns which are required to be filed by the Company or the
Company Subsidiaries. All material Taxes shown as owing by
the Company or the Company Subsidiaries on all such Tax Returns
have been fully paid or properly accrued. Except as set forth
in Schedule 3.14 attached hereto, the Company has not received
written notice of any action, suit, proceeding, audit, claim,
deficiency or assessment pending with respect to any material Taxes
of the Company or the Company Subsidiaries.
3.15
Employee Benefit Plans
.
(a)
All of the Employee Plans and
Compensation Arrangements that provide benefit coverage to
employees of the Company are listed and described in Schedule 3.15
attached hereto, and copies of all written Employee Plans and
Compensation Arrangements (or related insurance policies) have been
made available to Buyer, along with copies of any employee
handbooks describing such Employee Plans and Compensation
Arrangements.
(b)
Each Employee Plan and Compensation
Arrangement has been administered in compliance in all material
respects with its own terms and with the provisions of
- 6 -
ERISA, the Code, the Age Discrimination
in Employment Act and any other applicable federal or state
laws.
(c)
For purposes of this Agreement, the
following terms shall have the meanings indicated: (i) "
Employee Plan " shall mean any retirement or welfare plan or
arrangement or any other employee benefit plan as defined in
Section 3(3) of ERISA to which the Company or any ERISA Affiliate
thereof contributes or to which the Company or any ERISA Affiliate
thereof sponsors, maintains or otherwise is bound; (ii) "
Compensation Arrangement " shall mean any written plan or
compensation arrangement other than an Employee Plan which provides
to employees of the Company or any ERISA Affiliate thereof any
compensation or other benefits, whether deferred or not, in excess
of base salary or wages, including, but not limited to, any bonus
or incentive plan, stock rights plan, deferred compensation
arrangement, life insurance, stock purchase plan, severance pay
plan and any other employee fringe benefit plan; (iii) "
ERISA " shall mean the Employee Retirement Income Security
Act of 1974, as amended, any successor thereto and any regulations
promulgated thereunder; and (iv) " ERISA Affiliate " shall
mean any trade or business related to the Company under the terms
of Sections 414(b), (c), (m) or (o) of the Code.]
3.16
Licenses and Regulatory
Approvals . To the
knowledge of the Sellers, the Company and the Company Subsidiaries
hold all licenses, permits and other regulatory approvals which are
needed or required by law with respect to their businesses and
operations, as they are currently or presently conducted
(collectively, the " Licenses "), except where the failure
to possess such Licenses does not have a Material Adverse Effect
with respect to the Company. All such Licenses are in full
force and effect, and the Company is in compliance with all
conditions and requirements of the Licenses and with all rules and
regulations relating thereto, except where failure to be in full
force and effect or in compliance would not have a Material Adverse
Effect with respect to the Company.
3.17
Financial Statements
.
(a)
The un-audited consolidated balance
sheets of the Company as of December 31, 2005, 2006, and 2007, and
the consolidated statements of earnings, stockholders' equity and
cash flows of the Company for the years then ended (including, in
each case, any related notes thereto) are collectively referred to
herein as the " Financial Statements ." The Financial
Statements (i) were prepared in accordance with GAAP (applied
on a consistent basis except as disclosed in the notes thereto) and
(ii) fairly presented in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries
as at the respective dates thereof and the consolidated results of
the Company's operations and cash flows for the periods
indicated.
(b)
The Company's balance sheet as of
September 30, 2008 (the " Interim Balance Sheet ") and the
related statements of income for the three months, and for the nine
months, ended September 30, 2008 are referred to herein as the "
Interim Financial Statements ." The Interim Financial
Statements (i) were prepared in accordance with GAAP (applied on a
consistent basis except as disclosed in the notes thereto) and (ii)
fairly presented in all material respects the consolidated
financial condition of the Company and its consolidated
- 7 -
subsidiaries as at the respective dates
thereof and the consolidated results of the Company's operations
and cash flows for the period then ended.
3.18
Title to Properties
. The Company and each of the
Company Subsidiaries has good and valid title to, or, in the case
of leased properties and assets, valid leasehold interests in, all
of its tangible properties and assets, real, personal and mixed,
used or held for use in its business, free and clear of any liens,
pledges, charges, security interests or other encumbrances of any
sort (" Liens "), except for Liens (a) pursuant to the
Credit Agreement, (b) imposed by law in respect of obligations not
yet due that are owed in respect of taxes or which otherwise are
owed to carriers, warehousepersons or laborers, (c) as reflected in
the Financial Statements and (d) for such Liens or other
imperfections of title and encumbrances, if any, which would not
have, individually or in the aggregate, a Material Adverse Effect
with respect to the Company.
3.19
Real Property .
(a)
Schedule 3.19(a) attached hereto sets
forth by address the parcels of property currently owned by the
Company (the " Owned Real Property "), and sets forth by
address the parcels of property currently leased by the Company
(the " Leased Real Property " and collectively with the
Owned Real Property, the " Real Property ").
(b)
The Company has good and marketable title
to the Owned Real Property, free and clear of all Liens, subject
only to such encumbrances of record and to such other imperfections
of title, encumbrances and encroachments which in the aggregate do
not materially impair the value of the Owned Real Property in its
current use by the Company or materially impair the Company's
operations, and further subject to current taxes and assessments
not in default.
(c)
The leases of the Leased Real Property
are in full force and effect. The Company has neither sent
nor received written notice of any default under the leases of the
Leased Real Property, and the Company has not breached any material
covenant, agreement or condition contained in any lease of the
Leased Real Property, and there has not occurred any event that the
passage of time or the giving of notice or both would constitute
such a breach by the Company.
3.20
Intellectual Property
. The Company, directly or
indirectly, owns, or is licensed or otherwise possesses rights to
use, all patents, trademarks, trade names, service marks,
copyrights and any applications therefor, technology, know-how and
tangible or intangible proprietary information that are material to
the business of the Company and the Company Subsidiaries as
currently conducted by the Company or the Company Subsidiaries (the
“Intellectual Property”), except where the failure to
own, license or possess such rights would not have, individually or
in the aggregate, a Material Adverse Effect with respect to the
Company. Schedule 3.20 attached hereto sets forth a listing
of the Intellectual Property
3.21
Commissions and Fees
. The Sellers have not employed any
investment banker, broker, finder, consultant or intermediary in
connection with the transactions contemplated by this Agreement
which would be entitled to any investment banking, brokerage,
finder's or similar fees or commissions in connection with this
Agreement or the transactions contemplated hereby.
- 8 -
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to
the Sellers as follows:
4.1
Organization, Existence and Good
Standing . Buyer is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada and has all necessary
corporate power to own its properties and assets and to carry on
its business as presently conducted. Buyer is duly qualified
to do business as a foreign corporation and is in good standing in
all jurisdictions in which the character of the property owned,
leased or operated or the nature of the business transacted by it
makes qualification necessary.
4.2
Power and Authority
. Buyer has the corporate power to
execute, deliver and perform this Agreement and all agreements and
other documents executed, delivered and performed, or to be
executed, delivered and performed, by it pursuant to this
Agreement, and has taken all actions required by its certificate of
incorporation, bylaws or otherwise to authorize the execution,
delivery and performance of this Agreement and such related
documents. The execution, delivery and performance of this
Agreement have been approved by the Board of Directors of Buyer.
This Agreement has been duly executed and delivered by Buyer
and, assuming this Agreement constitutes a valid and binding
obligation of the Sellers, is enforceable against Buyer in
accordance with its terms, except that the enforcement hereof may
be limited by (a) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law).
4.3
Financing . As of the Closing Date Buyer will have, cash
on hand in an amount sufficient to enable it to pay in cash the
full amount of the Purchase Price to the Sellers and to consummate
the transactions contemplated hereby..
4.4
Legal Proceedings
. Except as disclosed in Schedule
4.4 attached hereto, there is no litigation, governmental
investigation or other proceeding pending or, to the knowledge of
Buyer, threatened against Buyer, its properties or business, or the
transactions contemplated by this Agreement which would have a
Material Adverse Effect with respect to Buyer or the transactions
contemplated hereby.
4.5
No Violation; Consents and
Approvals .
(a)
Except as set forth in Schedule 4.5
attached hereto, neither the execution and delivery of this
Agreement by Buyer nor the consummation by Buyer of the
transactions contemplated hereby will (i) violate, conflict with or
result in any breach of any provisions of the organizational
documents of Buyer, (ii) violate any order, injunction, judgment,
ruling, law or regulation of any Governmental Entity applicable to
Buyer or (iii) conflict with or result in a breach of any provision
of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under (A) any
agreement, contract or other instrument
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binding upon Buyer or (B) any license,
franchise, permit or other similar authorization held by
Buyer.
(b)
Neither the execution and delivery of
this
