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Exhibit
10.1
EQUITY PURCHASE
AGREEMENT
THIS EQUITY PURCHASE
AGREEMENT (“ Agreement ”), dated as of the
1 st day of June, 2007, is entered into between
AGREX, INC., a Kansas corporation (“ Buyer ”),
and FCSTONE GROUP, INC., a Delaware corporation (“
Seller ”). Buyer and Seller are sometimes referred to
herein collectively as the “ Parties ” and
individually as a “ Party .”
Recitals
A. Seller owns Seven Hundred
Thousand (700,000) units of membership (“ Units
”) of FDGI, L.L.C., a Delaware limited liability company (the
“ Company ”).
B. Buyer owns Three Hundred
Thousand (300,000) Units of the Company.
C. Buyer shall purchase from
Seller, and Seller shall sell to Buyer, Four Hundred Fifty Thousand
(450,000) Units of the Company (the “ Acquired
Equity ”) upon and subject to the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in
consideration of and in reliance upon the mutual representations,
warranties and covenants set forth in this Agreement, the Parties
hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 Definition
Reference . Certain capitalized terms used in this Agreement
shall have the meanings set forth in Section 12.1.
1.2 Accounting Terms .
Accounting terms used herein and not otherwise defined herein shall
have the meanings attributed to them under GAAP.
SECTION 2
PURCHASE AND SALE OF
UNITS
2.1 Purchase of Acquired
Equity . Subject to the terms and conditions of this Agreement,
at the Closing, Seller will sell and transfer the Acquired Equity
to Buyer and Buyer will purchase the Acquired Equity from
Seller.
2.2 Purchase Price .
The aggregate purchase price for the Acquired Equity will be an
amount (the “ Purchase Price ”) equal to Six
Million Seven Hundred Fifty Thousand Dollars
($6,750,000).
2.3 Payment . At the
Closing, subject to the terms and conditions of this Agreement,
Buyer will pay and deliver to Seller an amount in cash (the “
Closing Payment ”) equal to the Purchase Price. The
Closing Payment will be paid by means of a wire transfer of
immediately available funds to an account or accounts designated by
Seller.
SECTION 3
THE CLOSING
3.1 The Closing . The
consummation of the transactions contemplated by this Agreement
(the “ Closing ”) shall take place at the
offices of the Seller in Kansas City, Missouri, commencing at 9:00
a.m. local time on June 1, 2007, or such other date as the
Parties may mutually determine (the “ Closing Date
”). Notwithstanding the foregoing, the Parties agree and
acknowledge that the effective time of the consummation of the
transactions contemplated hereby shall be 12:01 a.m. on the Closing
Date.
3.2 Actions at or Prior to
the Closing . At or prior to the Closing, (a) Buyer will
deliver the various certificates, instruments, and documents
referred to in Section 8.2 below; (b) Seller will deliver
the various certificates, instruments, and documents referred to in
Section 8.1 below; (c) Buyer will deliver to Seller the
Closing Payment, as provided in Section 2.3 above; and
(d) Seller shall deliver any certificates evidencing the
Acquired Equity, either endorsed in blank or with transfer powers
endorsed and attached thereto.
3.3 Interdependence .
The sale and other transfers and deliveries described herein shall
be mutually interdependent and regarded as occurring simultaneously
as of the Closing; and, unless a particular transfer or delivery is
waived by both the transferor and transferee, no such transfer or
delivery shall become effective unless and until all the other
transfers and deliveries provided for herein have also been
consummated.
SECTION 4
REPRESENTATIONS AND
WARRANTIES CONCERNING BUYER
Buyer represents and warrants
to Seller as follows:
4.1 Organization,
Authority and Capacity . Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Kansas. Buyer has full power and authority to execute, deliver,
and perform this Agreement, and all the other agreements,
instruments and documents to be executed and delivered by it in
connection herewith, in accordance with their respective terms, and
such execution, delivery and performance by Buyer has been, or as
of the Closing Date will be, approved by all requisite company
action. This Agreement, and all the other agreements, instruments
and documents to be executed and delivered herewith, have been duly
executed and delivered by Buyer, and each constitutes the legal,
valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms.
4.2 No Consents or
Conflicts . Except as set forth on Schedule 4.2 , no
consent of, or filing with, any Governmental Authority or third
party is required in connection with the execution, delivery or
performance of this Agreement or any of the other agreements,
instruments or documents to be delivered by or on behalf of Buyer
in connection herewith. Neither the execution and delivery nor the
performance of this Agreement or any of the other agreements,
instruments or documents to be delivered by or on behalf of Buyer
in connection herewith conflicts with, violates or results in any
breach, or constitutes a default or causes an acceleration of
any
2.
obligation, of (a) any judgment,
decree, order, statute, rule or regulation applicable to Buyer,
(b) any permit, agreement or other instrument to which Buyer
is a party or by which Buyer or any of its assets is bound, or
(c) any provision of Buyer’s charter
documentation.
4.3 Investment Purpose
. Buyer is making the investment for its own account for investment
purposes and not with a view to the sale or distribution of the
Acquired Equity. Buyer has no intention to sell or otherwise
transfer the Acquired Equity to anyone for at least nine
(9) months following the purchase of the Acquired
Equity.
4.4 Due Diligence .
Buyer has made such investigation of the Company as it deemed
appropriate to obtain information regarding the financial condition
of the Company and to evaluate the merits and risks of this
investment. Buyer has had the opportunity to ask questions of, and
receive answers from, representatives of the Company concerning the
financial condition and business prospects of the Company and the
information provided to Buyer. Management of the Company has
satisfactorily answered all inquiries that Buyer has put to it
concerning the business affairs of the Company.
SECTION 5
REPRESENTATIONS AND
WARRANTIES OF SELLER
REGARDING THE
COMPANY
Seller represents and
warrants to Buyer as follows:
5.1 Organization,
Authority and Capacity . The Company is a limited liability
company duly organized, validly existing and in good standing under
the laws of the State of Delaware and has full power and authority
to own, lease and operate its assets and properties and carry on
its business as and where such assets and properties are now owned
or leased and as such business is presently being conducted. The
Company is qualified as a foreign entity to do business in the
locations set forth in Schedule 5.1 which are all states where the
failure to so qualify would have a Material Adverse Effect on the
Company or its business.
5.2 No Consents or
Conflicts . Except as set forth on Schedule 5.2 :
(a) No consent of, or filing with, any Governmental Authority
or third party is required in connection with the execution,
delivery or performance of this Agreement or any of the other
agreements, instruments or documents to be delivered by or on
behalf of the Company in connection herewith; and (b) Neither
the execution and delivery nor the performance of this Agreement or
any of the other agreements, instruments or documents to be
delivered by or on behalf of the Company in connection herewith
conflicts with, violates or results in any breach, or constitutes a
default or causes an acceleration of any obligation, of
(i) any judgment, decree, order, statute, rule or regulation
applicable to the Company or Seller, (ii) any permit, license,
agreement or other instrument to which the Company or Seller is a
party or is bound or by which the Company’s assets is
subject, or (iii) any provision of any of the Company’s
charter documents.
3.
5.3 Books and Records
.
(a) The Company currently has
1,000,000 Units issued and outstanding. All of the issued and
outstanding Units have been duly authorized and issued, pursuant to
the terms of the Company’s operating agreement dated as of
September 1, 2000. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments that
could require the Company to issue, sell, or otherwise cause to
become outstanding any of its Units. The Company does not own,
beneficially or of record, any equity or ownership interest in any
other Person.
(b) The books of account,
minute books, ownership record books, and other records of the
Company are complete and correct and have been maintained in
accordance with sound business practices, including the maintenance
of an adequate system of internal controls. The minute books of the
Company contain accurate and complete records of all meetings held
of, and corporate action taken by, the members, the Board of
Managers, and committees of the Board of Managers of the Company.
At the Closing, all of those books and records will be in the
possession of the Company.
5.4 Financial
Statements . Set forth on Schedule 5.4 are the following
financial statements (the “ Financial Statements
”): (i) the Company’s audited balance sheet and
related statements of operations, member’s equity, and cash
flows for the fiscal years ended August 31, 2005 and
August 31, 2006; and (ii) the Company’s unaudited
balance sheet (the “ Company Balance Sheet ”)
and related statement of income for period ending April 30,
2007. The Financial Statements have been prepared in accordance
with GAAP applied on a consistent basis throughout the periods
covered thereby and present fairly, in all material respects, the
financial condition of the Company as of such dates and the results
of operations for the periods specified; provided , that the
unaudited Financial Statements described above are subject to
normal year-end adjustments and absence of footnotes, none of which
are, individually or in the aggregate, material.
5.5 No Liabilities .
To Seller’s Knowledge the Company has no Liabilities of any
kind (contingent or otherwise) except (a) as reflected on the
Company Balance Sheet, (b) future performance obligations
under contracts, (c) liabilities incurred in the ordinary
course of business, since the date of the Company Balance Sheet,
and (d) Liabilities related to the Pre-Close Qualified Plan
Matters or contingent liabilities in proceedings listed in
Schedule 5.9 .
5.6 No Changes .
Except as set forth on Schedule 5.6 and Schedule 5.9
, since January 1, 2007, the Company has conducted its
business only in the ordinary course of business and there has not
been any:
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(a) |
issuance, sale or transfer any Units or other equity
securities, securities convertible into Units or other equity
securities or warrants, options or other rights to acquire Units or
other equity securities, or any bonds or debt
securities; |
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(b) |
amendment to the charter documents of the Company; |
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(c) |
payment or
increase by the Company of any bonuses, salaries, or other
compensation to any member, manager, officer, other than in the
ordinary course of business and in accordance with previously
adopted compensation plans
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4.
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or except in the ordinary
course of business and consistent with past practice employ or
enter into any employment, severance, or similar contract with any
manager, officer, or employee;
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(d) |
adoption of, or increase in the payments to or benefits under,
any profit sharing, bonus, deferred compensation, savings,
insurance, pension, retirement, or other employee benefit plan for
or with any employees; |
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(e) |
damage to or destruction or loss of any asset or property of
the Company, whether or not covered by insurance, having a Material
Adverse Effect, the properties, assets, business, financial
condition, or prospects of the Company; |
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(f) |
entry into, termination of, or receipt of notice of termination
of (i) any license, distributorship, dealer, sales
representative, joint venture, credit, or similar agreement, or
(ii) any Contract or transaction involving a total remaining
commitment by or to the Company of at least $20,000; |
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(g) |
sale (other than sales of inventory in the ordinary course of
business), lease, or other disposition of any asset or property of
the Company or mortgage, pledge, or imposition of any Lien on any
material asset or property of the Company, including the sale,
lease, or other disposition of any of the Intellectual Property
Rights; |
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(h) |
cancellation or waiver of any claims or rights with a value to
the Company in excess of $10,000; |
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(i) |
material change in the accounting methods used by the Company;
or |
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(j) |
agreement, whether oral or written, by the Company to do any of
the foregoing. |
5.7 Receivables . To
Seller’s Knowledge the accounts receivable reflected on the
Company Balance Sheet are stated thereon in accordance with GAAP,
consistently applied. The accounts receivable of the Company net of
allowance for doubtful accounts (i) are bona fide receivables
representing amounts due with respect to actual, arm’s length
transactions entered into in the ordinary course of business,
(ii) are legal, valid and binding obligations of the obligors,
and (iii) are good and collectible in accordance with their
terms.
5.8 Compliance with
Laws . Except with respect to claims as set forth in
Schedule 5.9 , the Company is not, nor at any time in the
past has been, in violation of any Law, including, without
limitation, any Law pertaining to securities (including, without
limitation, the Securities Act, the Exchange Act and state
“blue sky” Laws), environmental protection,
occupational health or safety, employee benefits, or employment
practices which would have a Material Adverse Effect on the Company
or its business. The Company is the holder of, and has all of the,
permits and licenses applicable to or necessary to conduct its
business in compliance with Laws. All such permits and licenses are
in full force and effect, and no proceeding is pending or
threatened to revoke or limit any of them.
5.
5.9 No Litigation .
Except as set forth on Schedule 5.9 , there is no claim,
litigation, investigation or proceeding pending or threatened
against the Company. There are no pending or threatened
controversies, grievances or claims by any employee or former
employee of the Company with respect to their employment,
compensation, benefits or working conditions, nor is there any
reasonable basis upon which any such possible grievance or claim
could be based. Except as set forth on Schedule 5.9 , there
are no pending or threatened claims by any party against the
Company relating to products sold or services performed by the
Company, nor to Seller’s Knowledge is there any reasonable
basis upon which any such claim could be based.
5.10 Taxes . Except as
set forth in Schedule 5.10:
(a) the Company has accurately prepared
and duly and timely filed, or caused to be duly and timely filed,
all federal, state, foreign and local Tax returns and reports
required to be filed by it, (b) the Company has paid, or has
made adequate provision or set up an adequate accrual or reserve
(in each case as reflected on the Financial Statements) for the
payment of, all Taxes shown to be owing on such returns,
(c) the accrual for Taxes shown on the Financial Statements is
sufficient to cover all Liabilities of the Company for Taxes
(including, without limitation, interest through the date of the
Financial Statements and any additions to Taxes or penalties) that
have accrued in respect of periods through the date of such
Financial Statements for which returns and reports as of such date
were not yet due, and (d) the Company is not a party to any
action or proceeding, nor is any such action or proceeding
threatened, by any Governmental Authority for the assessment or
collection of any Taxes, and no deficiency notices or reports have
been received by the Company in respect of any deficiencies for any
Taxes. The Company has not elected pursuant to the Code to be
treated as a Subchapter S Corporation or collapsible corporation
pursuant to Section 341(f) or Section 1362(a) of the
Code, nor has it made any other election pursuant to the Code that
would have a Material Adverse Effect on the Company.
5.11 Suppliers and
Customers and Conflicts . None of the Company’s customers
or suppliers has notified the Company in writing that it intends to
cancel or otherwise substantially modify its relationship with the
Company or limit its services, supplies or materials to the
Company, or its usage or purchase of the services and products of
the Company either as a result of the transactions contemplated
hereby or otherwise that would have a Material Adverse Effect on
the Company or its business. Except with respect to non-disclosure
agreements entered into in the ordinary course of business, the
Company is not a party to, or otherwise subject to, any contract or
agreement that (a) limits or purports to limit its ability to
compete in any way with any person or entity, or (b) restricts
it from disclosing any information in any way.
5.12 Absence of Certain
Business Practices . Neither the Company, or any other person
acting on its behalf, directly or indirectly, has given or agreed
to give any gift or similar benefit to any Person which
(a) might subject the Company to any damage or penalty in any
civil, criminal or governmental litigation or proceeding,
(b) if not given in the past, might have had an adverse effect
on the assets, properties, business or operations of the Company,
or (c) if not continued in the future, might adversely affect
the Company’s assets, operations or its prospects or which
might subject the Company to suit or penalty in any private or
governmental litigation or proceeding.
6.
5.13 Intellectual
Property . Schedule 5.13 lists all Intellectual Property
Rights owned or used by the Company or in which (as noted on such
Schedule) the Company has any rights or licenses. Except as and to
the extent set forth in Schedule 5.13 , the Company has such
rights of ownership or use in the Intellectual Property Rights as
are necessary to enable the Company to conduct all phases of its
business in the manner presently conducted, and such use does not
conflict with, infringe, or otherwise violate any rights of any
Person. Except as and to the extent set forth in Schedule
5.13 , there have been no actions (threatened or otherwise)
before the U.S. Patent and Trademark Office or other judicial,
arbitration, or other adversary actions or proceedings, or written
inquiries or notices regarding any such action or proceeding,
concerning the Intellectual Property Rights listed in Schedule
5.13 . Except as set forth on Schedule 5.13 , the
Company has the exclusive right to use all of the Intellectual
Property Rights listed in Schedule 5.13 . None of the
Intellectual Property Rights have been used, divulged, or
appropriated for the benefit of any past or present employees or
any other Person, or to the detriment of the Company.
5.14 Contracts
Generally . Schedule 5.14 contains a complete and
accurate list of the following Contracts to which the Company is a
party or pursuant to which the Company has any direct or indirect
Liability:
(a) all Contracts requiring
payments in the aggregate in excess of $50,000;
(b) all Contracts with a
remaining term in excess of one (1) year;
(c) all Contracts with, among
or between the Company and any Affiliate or Affiliates of the
Company;
(d) all loan, financing,
security, or other Contracts evidencing or relating to
indebtedness, guarantees, or Liens;
(e) all Contracts with
distributors, dealers or sales representatives;
(f) all management,
employment, severance, nondisclosure, noncompetition, or agency
Contracts;
(g) all labor Contracts and
collective bargaining agreements;
(h) all Contracts containing
covenants limiting the freedom to compete with any Person or in any
geographic area or market;
(i) all Contracts relating to
Intellectual Property Rights;
(j) all Contracts with
customers;
(k) all Contracts pursuant to
which the Company leases real property or personal
property;
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(l) all Contracts entered
into outside of the ordinary course of business; and
(m) all other Contracts
material to the conduct and operation of the Company’s
business.
5.15 Compliance with
Contracts . With respect to the Contracts identified in
Schedule 5.14 :
(a) the Company is not in
default under or in violation of any provisions thereof which would
result in a Material Adverse Effect on the Company;
(b) no event has occurred
which, with notice or lapse of time or both, would constitute such
a default or violation;
(c) each such Contract is a
legal, valid and binding obligation of the Company and of any other
party thereto; and
(d) to Seller’s
Knowledge there is no default under, or any violation of any
provisions of, any of the foregoing by any other party thereto
which would have a Material Adverse Effect on the
Company.
5.16 Product Warranty
. Except as set forth on Schedule 5.16 , (a) each
product sold or furnished by the Company has been sold or furnished
in conformity with all applicable contractual commitments and all
express and implied warranties; (b) to Seller’s
Knowledge the Company has no Liability (and there is no basis for
any present or future demand, action, or proceeding against the
Company giving rise to any Liability) for the furnishing of
replacement products or additional products at below market prices
or for any other damages in connection with any such product; and
(c) to Seller’s Knowledge no product delivered by the
Company is subject to any guaranty, warranty, or other indemnity
beyond the applicable standard terms and conditions of the
applicable Contract.
5.17 Product Liability
. To Seller’s Knowledge and except as set forth on
Schedule 5.17 , the Company has no Liability (and there is
no basis for any present or future demand, action, or proceeding
against the Company giving rise to any Liability) arising out of
any injury to individuals or property as a result of the ownership,
possession, or use of any product sold, used or delivered by the
Company.
5.18 Employment .
There are no pending grievances or claims before the Equal
Employment Opportunity Commission or any other Governmental
Authority by any employee or former employee of any of the Company
with respect to his or her employment, termination of employment or
any compensation or employee benefits (other than routine claims
for benefits under a Benefit Plan). The Company is not a party to
any collective bargaining agreement or employee grievance procedure
or dispute resolution mechanism nor to Seller’s Knowledge is
there threatened or underway any union organizational activities or
proceedings with respect to employees of the Company. Since
January 1, 2004, there has been no labor strike, slowdown or
stoppage pending or threatened against the Company.
8.
5.19 Employee Benefits
. Except as provided in Schedule 5.19 , the Company has not
maintained, sponsored, contributed to or incurred any Liability
under any Benefit Plan (as defined below) that is subject to any
provision of Title IV of ERISA or Section 412 of the Code.
Except as provided in Schedule 5.19 , the Company has not
incurred any obligation to contribute to or any Liability under any
“multi-employer plan” within the meaning of
Section 4001(a)(3) of ERISA, or ever participated in any
“multiple employer plan” within the meaning of
Section 413(c) of the Code. Except as provided in Schedule
5.19 the Company does not have(or in the event of any
termination or withdrawal would not have) any actual or potential
Liability for any termination or complete or partial withdrawal
from any such multi-employer plan or multiple employer plan. Except
as provided in Schedule 5.19 , to Seller’s Knowledge,
the terms of each Benefit Plan of the Company are, and each Benefit
Plan has been established, maintained and administered, in
compliance with the requirements of all laws, including ERISA, and,
where applicable, section 401 of the Code and any other provisions
of the Code related to any tax-favored treatment intended for such
Benefit Plan or applicable to plans or trusts of its type, subject
to the timely execution of any legally required update amendments,
and each Benefit Plan has been administered in accordance with its
terms. Except as provided in Schedule 5.19 , to
Seller’s Knowledge, there are not now, nor have there been,
any transactions involving any of the Company’s Benefit Plans
which are prohibited under ERISA, the Code or any other Law. As of
the date hereof, to Seller’s Knowledge there are no pending
or threatened claims by or on behalf of any of the Company’s
Benefit Plans or by any Company employee alleging a violation of
the Benefit Plan terms or breach or breaches of fiduciary duties or
violations of other applicable state or federal law which could
result in Liability on the part of the Company or any of the
Company’s Benefit Plan under ERISA or any other law, nor to
Seller’s Knowledge is there any basis for such a claim.
Except as provided in Schedule 5.19 all returns, reports,
disclosure statements and premium payments required to be made
under ERISA and the Code with respect to the Company’s
Benefit Plans have been timely filed or delivered. Each Benefit
Plan of the Company that is intended to be qualified under
Section 401(a) or 401(k) of the Code is so qualified and has
received a determination letter from the Internal Revenue Service
covering all amendments required to be adopted to date and there
are no circumstances which exist that are reasonably likely to
adversely affect the tax-qualified status of such Benefit Plan or
result in the revocation of such letter. Except as provided in
Schedule 5.19 the Company has made all contributions and
payments required to be made to or under each of its Benefit Plans
within the time prescribed by Law or, if earlier, the terms of the
Benefit Plan. Except as set forth on Schedule 5.19 , none of
the Benefit Plans provide life insurance, medical or health
benefits to Persons who are not current employees of the Company or
their dependents, except as required by Part 6 of Title I of ERISA
or any similar state law or provides severance benefits to any
active or former employee. Except as provided in Schedule
5.19 the Company has retained the right to unilaterally amend
or terminate each Benefit Plan to the fullest extent permitted by
Law. Complete and correct copies of all of the following documents
either have been delivered to Buyer or will be delivered to Buyer
prior to Closing: (i) all Benefit Plans which the Company has
at any time during the preceding six years maintained or
contributed to, and all amendments thereto and summary plan
descriptions thereof, if any, including accurate summaries of any
such Benefit Plans which are oral, (ii) all Forms 5500
prepared or filed for any Benefit Plan for the most recent two
years, and (iii) all determination letters issued by the
Internal Revenue Service with respect to any Benefit Plan. To
Seller’s Knowledge, no payment due to any employee, former
employee, director, consultant or agent as a result of the
transactions contemplated by this Agreement will or could
be
9.
characterized as an “excess
parachute payment” within the meaning of Section 280G of
the Code. The term “Benefit Plan” means each
“employee benefit plan,” as such term is defined in
Section 3(3) of ERISA, and any other fringe benefit program or
similar plan or arrangement, including without limitation any
employee loan, incentive compensation, bonus, profit sharing,
deferred compensation, severance, change of control, unit option or
purchase plan, phantom unit or unit appreciation rights plan,
guaranteed annual income plan or arrangement, noncompetition or
consulting agreement.
5.20 Inventory . The
inventories reflected on the Company Balance Sheet are stated
thereon in accordance with GAAP, consistently applied. Subject to
reserves reflected in the Company Balance Sheet, as adjusted to
reflect operations thereafter in accordance with past practices,
the inventory of the Company is suitable for sale in the ordinary
course of business in accordance with past practices.
5.21 Insurance .
Schedule 5.21 contains a description of each insurance
policy, bond or other form of insurance maintained by the Company
as of the date of this Agreement and for the three (3) years
prior to the date of this Agreement (the “ Insurance
Policies ”). All the Insurance Policies are in full force
and effect and the Company is not in default with respect to its
obligations under any of the Insurance Policies. Since
January 1, 2004, no written notice of cancellation or
termination has been received by the Company with respect to any
Insurance Policy. No Insurance Policy contains a provision that
would permit the termination, limitation, lapse, exclusion or
change in the terms of coverage of such Insurance Policy
(including, without limitation, change in the limits of liability)
by reason of the consummation of the transactions contemplated by
this Agreement. Schedule 5.21 contains a list of claims made
under any of the Insurance Policies at any time since
January 1, 2004.
5.22 Title to Assets .
Except as set forth on Schedule 5.22 , the Company owns all
of its assets free and clear of all Liens.
5.23 No
Misrepresentations . No representation or warranty made by
Seller in this Agreement, the Schedules or Exhibits hereto, or any
certificate or document delivered in connection herewith contains
any untrue statement of a material fact or omits to state a fact
required to be stated therein or herein or necessary to make the
statements and facts contained therein or herein, in light of the
circumstances under which they are made, not false or misleading.
Copies of all documents delivered or made available to Buyer by
Seller or the Company were complete and accurate copies of such
documents.
SECTION 6
REPRESENTATIONS AND
WARRANTIES OF SELLER
REGARDING THE
TRANSACTION
Seller represents and
warrants to Buyer as follows:
6.1 Authority and
Capacity . Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. Seller has full power, capacity and authority to execute,
deliver, and perform this Agreement, and all other agreements,
instruments and documents to be executed and delivered by it in
connection herewith, in accordance with their respective
10.
terms. This Agreement, and all the other
agreements, instruments and documents to be executed and delivered
herewith, have been duly executed and delivered by Seller, and each
constitutes the legal, valid and binding obligation of the Seller,
enforceable against Seller in accordance with its terms.
6.2 No Consents or
Conflicts . Except as set forth on Schedule 6.2 , no
consent of, or filing with, any Governmental Authority or third
party is required in connection with the execution, delivery or
performance of this Agreement or any of the other agreements,
instruments or documents to be delivered by or on behalf of Seller
in connection herewith. Neither the execution and delivery nor the
performance of this Agreement or any of the other agreements,
instruments or documents to be delivered by or on behalf of Seller
in connection herewith conflicts with, violates or results in any
breach, or constitutes a default or causes an acceleration of any
obligation, of (a) any judgment, decree, order, statute, rule
or regulation applicable to Seller, (b) any permit, agreement
or other instrument to which Seller is a party or is bound, or
(c) any provision of Seller’s charter
documentation
6.3 Ownership of Units
. Seller owns the Acquired Equity free and clear of all
Liens.
6.4 Brokerage . No
Person is or will become entitled, by reason of any agreement or
arrangement entered into or made by or on behalf of Seller, to
receive any commission, brokerage, finder’s fee or other
similar compensation in connection with the consummation of the
transactions contemplated by this Agreement.
SECTION 7
PRE-CLOSING
COVENANTS
The Parties agree as follows
with respect to the period from and after the execution of this
Agreement until the earlier to occur of either the Closing or the
termination of this Agreement:
7.1 General . Each of
the Parties will use commercially reasonable efforts to take all
action and to do all things necessary, proper, or advisable in
order to consummate and make effective the transactions
contemplated by this Agreement (including satisfaction, but not
waiver, of the closing conditions set forth in Section 8
below).
7.2 Third Party
Consents . Buyer will use commercially reasonable efforts to
obtain the third-party consents set forth on Schedule 4.2 .
Seller will use commercially reasonable efforts to obtain the
third-party consents set forth on Schedule 5.2 and on
Schedule 6.2 .
7.3 Regulatory Matters and
Required Approvals . Each of the Parties will give any notices
to, make any filings with, and use commercially reasonable efforts
to obtain any authorizations, consents, and approvals of
Governmental Authorities necessary in order either to consummate
the transactions contemplated hereby or for the Company to conduct
its businesses after Closing.
11.
7.4 Operation of the
Business . Except as Buyer may approve (with such approval not
to be unreasonably withheld), or as otherwise expressly
contemplated or permitted by this Agreement, Seller shall cause the
Comp
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