ASSET PURCHASE AGREEMENT

Transcription

1 ASSET PURCHASE AGREEMENT This asset purchase agreement is dated May 3, 2004, and is between HASTINGS WASTE MANAGEMENT, INC., a Delaware corporation ( Hastings ), JORVIK RECYCLING SYSTEMS, LTD., a New York corporation and a wholly owned subsidiary of Hastings ( Hastings Sub I ; together with Hastings, the Hastings Parties ), and JARROW HOLDINGS LLC, a Delaware limited liability company ( Jarrow ). SAMPLE 1 TITLE AND INTRODUCTORY CLAUSE

2 Hastings Sub I owns and operates collection and hauling operations, transfer stations, landfills, and recycling facilities in the State of New York (that business, the Business ). Jarrow, the Hastings Parties, Hastings Newton, Inc., a New York corporation and a wholly owned subsidiary of Hastings ( Hastings Sub II ), and Raven Fund Ltd., a Bahamas corporation ( Raven ), are party to a letter of intent dated February 23, 2004, concerning sale to Jarrow of assets of Hastings Sub I and Hastings Sub II (the Letter of Intent ). Hastings Sub I wishes to sell to one or more persons designated by Jarrow, and Jarrow wishes to cause those Persons to purchase from Hastings Sub I, certain assets of Hastings Sub I. Raven asserts a security interest in all assets owned by Hastings Sub I, and under the restructuring agreement dated September 25, 2003, between Raven, Hastings, and certain Affiliates of Hastings, Hastings Sub I may not sell any of its assets to Jarrow without Raven s prior written approval. Jarrow, the Hastings Parties, Raven, and Bratton Friedman LLP, as escrow agent, are party to a deposit agreement dated March 2, 2003, as amended (the Deposit Escrow Agreement ), in accordance with which Jarrow paid to the escrow agent on October 3, 2003, a good faith deposit of $500,000 toward the purchase price of the assets. Concurrently with its entry into this agreement, Hastings, Hastings Sub II, and Jarrow are entering into an asset purchase agreement providing for purchase by Jarrow of certain assets of Hastings Sub II. The parties therefore agree as follows: SAMPLE 2 RECITALS

3 Article 1 PURCHASE OF ASSETS 1.1 Acquired Assets. (a) Mercury hereby sells to Stratford, and Stratford hereby purchases from Mercury, the following assets, as they exist on the date of this agreement (those assets, the Acquired Assets ): (1) all of Mercury s accounts, notes, and other receivables (including accounts receivable) relating to the Collectibles Business, whether or not accrued and whether or not billed, as described on Schedule 1.1(a)(1) (the Accounts Receivable ); (2) all goodwill associated with the Collectibles Business and all of Mercury s claims and causes of action relating to the assets and customers (current and former) of the Collectibles Business; (3) all inventory listed on Schedule 1.1(a)(3); (4) all of Mercury s rights under each Contract relating to the Collectibles Business, each of which is listed on Schedule 1.1(a)(5); and (5) all Mercury lists relating to the Acquired Assets or the Collectibles Business, including without limitation the Customer List. (b) The assets to be conveyed to Stratford must be adjusted to reflect, in accordance with GAAP, the principle that all income and expenses attributable to the period after the Effective Date are for the account of Stratford (subject to the terms of the Management Agreement). 1.2 Purchase Price. As the aggregate purchase price for the Acquired Assets (the Purchase Price ), Stratford shall transfer to Mercury the following: (1) in accordance with the terms of the stock grant agreement dated the date of this agreement between Stratford and Mercury in the form of Exhibit A (the Stock Grant Agreement ), shares of capital stock of Stratford; (2) the warrant agreement in the form of Exhibit B (the Warrant ); and (3) a cash payment of $100, Assumed Liabilities. Stratford hereby assumes and shall pay, perform, and discharge, when due in accordance with their terms, the debts, obligations, and liabilities of Mercury listed on Schedule 1.3 (those debts, obligations, and liabilities, the Assumed Liabilities ). SAMPLE 3 ARTICLE HEADING AND PREFERRED HYBRID FORMAT FOR THE BODY OF THE CONTRACT

4 1.1 Acquired Assets. (a) Mercury hereby sells to Stratford the following assets, as they exist on the date of this agreement (those assets, the Acquired Assets ): (1) all of Mercury s accounts, notes, and other receivables (including accounts receivable) relating to the Collectibles Business, whether or not accrued and whether or not billed, as described on Schedule 1.1(a)(1) (the Accounts Receivable ); (2) all goodwill associated with the Collectibles Business and all of Mercury s claims and causes of action relating to the assets and customers (current and former) of the Collectibles Business; (3) all inventory listed on Schedule 1.1(a)(3); (4) all of Mercury s rights under each Contract relating to the Collectibles Business, each of which is listed on Schedule 1.1(a)(5); and (5) all Mercury lists relating to the Acquired Assets or the Collectibles Business, including but not limited to the Customer List. (b) The assets to be conveyed to Stratford must be adjusted to reflect, in accordance with GAAP, the principle that all income and expenses attributable to the period after the Effective Date are for the account of Stratford (subject to the terms of the Management Agreement). 1.2 Purchase Price. As the aggregate purchase price for the Acquired Assets (the Purchase Price ), Stratford shall transfer to Mercury the following: (1) in accordance with the terms of the stock grant agreement dated the date of this agreement between Stratford and Mercury in the form of Exhibit A (the Stock Grant Agreement ), shares of capital stock of Stratford; (2) the warrant agreement in the form of Exhibit B (the Warrant ); and (3) a cash payment of $100, Assumed Liabilities. Stratford hereby assumes and shall pay, perform, and discharge, when due in accordance with their terms, the debts, obligations, and liabilities of Mercury listed on Schedule 1.3 (those debts, obligations, and liabilities, the Assumed Liabilities ). STAGGERED FIRST LINE INDENT FORMAT SAMPLE 4 ALTERNATIVE FORMATS FOR THE BODY OF THE CONTRACT

5 1.1 Acquired Assets. (a) Mercury hereby sells to Stratford the following assets, as they exist on the date of this agreement (those assets, the Acquired Assets ): (1) all of Mercury s accounts, notes, and other receivables (including accounts receivable) relating to the Collectibles Business, whether or not accrued and whether or not billed, as described on Schedule 1.1(a)(1) (the Accounts Receivable ); (2) all goodwill associated with the Collectibles Business and all of Mercury s claims and causes of action relating to the assets and customers (current and former) of the Collectibles Business; (3) all inventory listed on Schedule 1.1(a)(3); (4) all of Mercury s rights under each Contract relating to the Collectibles Business, each of which is listed on Schedule 1.1(a)(5); and (5) all Mercury lists relating to the Acquired Assets or the Collectibles Business, including but not limited to the Customer List. (b) The assets to be conveyed to Stratford must be adjusted to reflect, in accordance with GAAP, the principle that all income and expenses attributable to the period after the Effective Date are for the account of Stratford (subject to the terms of the Management Agreement). 1.2 Purchase Price. As the aggregate purchase price for the Acquired Assets (the Purchase Price ), Stratford shall transfer to Mercury the following: (1) in accordance with the terms of the stock grant agreement dated the date of this agreement between Stratford and Mercury in the form of Exhibit A (the Stock Grant Agreement ), shares of capital stock of Stratford; (2) the warrant agreement in the form of Exhibit B (the Warrant ); and (3) a cash payment of $100, Assumed Liabilities. Stratford hereby assumes and shall pay, perform, and discharge, when due in accordance with their terms, the debts, obligations, and liabilities of Mercury listed on Schedule 1.3 (those debts, obligations, and liabilities, the Assumed Liabilities ). STAGGERED HANGING INDENT FORMAT SAMPLE 4 ALTERNATIVE FORMATS FOR THE BODY OF THE CONTRACT (CONT.)

6 Integrated Enumerated Clause 1.6 Conversion of Stock. (a) At the Effective Time, by virtue of the Merger and without any action on the part of Holdings, Sub, or PMG, the following will occur: (1) all shares of common stock, par value $0.10 per share, of PMG ( PMG Common Stock ) outstanding immediately prior to the Effective Time (other than shares held by PMG as treasury stock and Dissenting Shares) will be converted into the right to receive the Merger Consideration; (2) all shares of PMG Common Stock held at the Effective Time by PMG as treasury stock will be canceled and no payment will be made with respect to those shares; and (3) each share of capital stock of Sub outstanding immediately prior to the Effective Time will be converted into one validly issued, fully paid, and nonassessable share of common stock of the Surviving Corporation. Tabulated Enumerated Clause 1.6 Conversion of Stock. (a) At the Effective Time, by virtue of the Merger and without any action on the part of Holdings, Sub, or PMG, the following will occur: (1) all shares of common stock, par value $0.10 per share, of PMG ( PMG Common Stock ) outstanding immediately prior to the Effective Time (other than shares held by PMG as treasury stock and Dissenting Shares) will be converted into the right to receive the Merger Consideration; (2) all shares of PMG Common Stock held at the Effective Time by PMG as treasury stock will be canceled and no payment will be made with respect to those shares; and (3) each share of capital stock of Sub outstanding immediately prior to the Effective Time will be converted into one validly issued, fully paid, and nonassessable share of common stock of the Surviving Corporation. SAMPLE 5 INTEGRATED AND TABULATED ENUMERATED CLAUSES

7 The parties are signing this agreement on the date stated in the introductory clause. HASTINGS WASTE MANAGEMENT, INC. By: Name: Title: JORVIK RECYCLING SYSTEMS, LTD. By: Name: Title: JARROW HOLDINGS LLC By: Raindance Associates LLC, its manager By: Name: Title: JANE DOE SAMPLE 6 THE CONCLUDING CLAUSE AND SIGNATURE BLOCKS

8 1. Defined Terms. Defined terms used but not defined in this agreement are as defined in the Supply Agreement. 2. Amendment to Section 4.1. Section 4.1 of the Supply Agreement is hereby amended by replacing July 16, 2004 with September 16, Amendments to Article 5. Article 5 of the Supply Agreement is hereby amended as follows: (1) by inserting after section 5.2 the following new section 5.3: 5.3 Transition Services Agreement. Subject to the Transition Services Agreement between Waferco and Digital dated March 12, 2004, Waferco shall comply with Exhibit G (Delivery and Logistics) in its shipping and handling of finished Wafers. (2) by renumbering sections 5.4 through 5.10 as sections 5.5 through SAMPLE 7 USE OF ITALICS IN AMENDMENTS

9 Single Spacing Line and a Half Spacing Double Spacing SAMPLE 8 LINE SPACING

10 Left Justification Full Justification SAMPLE 9 JUSTIFICATION

11 Times New Roman [12]pt Arial [12]pt 3.7 Financial Statements. Vector has previously delivered to Holdings the audited consolidated balance sheet of Vector as of December 31, 2003 (the Balance Sheet ), and the related consolidated audited statements of income and cash flow for Vector for the year then ended. Those financial statements have been prepared in accordance with GAAP consistent with Vector s past practice (except in each case as described in the notes thereto) and on that basis present fairly the financial position and the results of operations and cash flow of Vector at and as of December 31, 2003, and for the period referred to in those financial statement. Courier New [12]pt 3.7 Financial Statements. Vector has previously delivered to Holdings the audited consolidated balance sheet of Vector as of December 31, 2003 (the Balance Sheet ), and the related consolidated audited statements of income and cash flow for Vector for the year then ended. Those financial statements have been prepared in accordance with GAAP consistent with Vector s past practice (except in each case as described in the notes thereto) and on that basis present fairly the financial position and the results of operations and cash flow of Vector at and as of December 31, 2003, and for the period referred to in those financial statement. SAMPLE 10 TYPEFACE

12 No Emphasis All Capitals 3.7 FINANCIAL STATEMENTS. Vector HAS PREVIOUSLY DELIVERED TO HOLDINGS THE AUDITED CONSOLIDATED BALANCE SHEET OF Vector AS OF DECEMBER 31, 2003 (THE BALANCE SHEET ), AND THE RELATED CONSOLIDATED AUDITED STATEMENTS OF INCOME AND CASH FLOW FOR Vector FOR THE YEAR THEN ENDED. THOSE FINANCIAL STATEMENTS HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP CONSISTENT WITH Vector S PAST PRACTICE (EXCEPT IN EACH CASE AS DESCRIBED IN THE NOTES THERETO) AND ON THAT BASIS PRESENT FAIRLY THE FINANCIAL POSITION AND THE RESULTS OF OPERATIONS AND CASH FLOW OF Vector AT AND AS OF DECEMBER 31, 2003, AND FOR THE PERIOD REFERRED TO IN THOSE FINANCIAL STATEMENT. Underlining Italics

13 Bold 3.7 Financial Statements. Vector has previously delivered to Holdings the audited consolidated balance sheet of Vector as of December 31, 2003 (the Balance Sheet ), and the related consolidated audited statements of income and cash flow for Vector for the year then ended. Those financial statements have been prepared in accordance with GAAP consistent with Vector s past practice (except in each case as described in the notes thereto) and on that basis present fairly the financial position and the results of operations and cash flow of Vector at and as of December 31, 2003, and for the period referred to in those financial statement. Bold Italics ended. Those financial statements have been prepared in accordance with GAAP consistent with Vector s past practice (except in each case as described in the notes thereto) and on that basis present fairly the financial position and the results of operations and cash flow of Vector at and Bold Italics with Border ended. Those financial statements have been prepared in accordance with GAAP consistent with Vector s past practice (except in each case as described in the notes thereto) and on that basis present fairly the financial position and the results of operations and cash flow of Vector at and SAMPLE 11 EMPHASIS

14 Times New Roman 10pt consolidated balance sheet of Vector as of December 31, 2003 (the Balance Sheet ), and the related consolidated audited statements of income and cash flow for Vector for the year then ended. Those financial statements have been prepared in accordance with GAAP consistent with Vector s past practice (except in each case as described in the notes thereto) and on that basis present fairly the financial position and the results of operations and cash flow of Vector at and Times New Roman 12pt Times New Roman 14pt 3.7 Financial Statements. Vector has previously delivered to Holdings the audited consolidated balance sheet of Vector as of December 31, 2003 (the Balance Sheet ), and the related consolidated audited statements of income and cash flow for Vector for the year then ended. Those financial statements have been prepared in accordance with GAAP consistent with Vector s past practice (except in each case as described in the notes thereto) and on that basis present fairly the financial position and the results of operations and cash flow of Vector at and as of December 31, 2003, and for the period referred to in those financial statement. SAMPLE 12 FONT SIZE

15 Dynamix Corporation 710 West Jefferson Street Shorewood, IL May 1, 2004 Excelsior Consulting 599 Lexington Avenue New York, NY Attention: Ms. Jane Doe, President Dear Sirs: The purpose of this letter agreement is to state the terms under which Dynamix Corporation ( Dynamix ) is to retain Excelsior Corporation ( Excelsior ) as a consultant. [Insert substantive provisions] If this letter agreement correctly reflects the terms agreed by Dynamix and Excelsior, please sign a copy of this agreement in the space provided below and return it by facsimile to the facsimile number of Dynamix stated above and by overnight courier to the address of Dynamix stated above, in each case to the attention of John Roe. Yours sincerely, DYNAMIX CORPORATION By: John Roe Chief Financial Officer Agreed to as of May 1, 2004: WIDGET CORPORATION By: Name: Title: SAMPLE 13 LETTER AGREEMENT

16 UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF ACME TECHNOLOGIES, INC. Pursuant to Section 141(f) of the General Corporation Law of the State of Delaware The undersigned, constituting all the members of the Board of Directors of Acme Technologies, Inc., a Delaware corporation (the Company ), acting by written consent in lieu of a meeting pursuant to section 141(f) of the General Corporation Law of the State of Delaware, hereby consent to the adoption of the following resolutions as though adopted at a meeting duly called and held with a quorum being present and acting throughout: WHEREAS, on March 18, 2002, the Company entered into a letter of intent with Dynamic Research, Inc. ( Dynamic ), a company developing global positioning satellite technologies, to purchase preferred stock representing a 35% ownership interest in Dynamic; and WHEREAS, the Company has investigated Dynamic s operations, technologies and corporate governance and has not uncovered any information to indicate that the Company should not consummate this transaction; NOW, THEREFORE, IT IS RESOLVED, that the Company s execution of the letter of intent be, and it hereby is, ratified; RESOLVED, the Company be, and hereby is, authorized and directed to enter into and to perform its obligations under the Preferred Stock Purchase Agreement between the Company and Dynamic substantially in the form attached hereto as Appendix A, and those ancillary agreements provided for therein to which the Company is a party, each with such changes, if any, as shall be acceptable to the officers of the Company in their sole discretion, execution and delivery of those documents by the Company to be conclusive evidence of the approval of Board of Directors of the Company; and RESOLVED, that the officers of the Company be, and each of them hereby is, hereby authorized to execute and deliver on behalf of the Company all such further documents, certificates, or instruments, to take on behalf of the Company all such further actions, and to pay on behalf of the Company all such expenses as the officers of the Company shall determine to be necessary or desirable in order to carry out the foregoing resolutions, the execution and delivery of any such documents, certificates, or

17 instruments, the taking of any such actions, and the payment of any such expenses to be conclusive evidence of the approval of the Board of Directors of the Company. This Unanimous Written Consent may be executed in two or more counterparts, each of which shall be deemed an original instrument, but all such counterparts shall together constitute for all purposes one and the same instrument. IN WITNESS WHEREOF, the undersigned have duly executed this Unanimous Written Consent on the 17th day of May, 2003 John Doe Robert Roe Jane Doe SAMPLE 14 BEFORE VERSION OF WRITTEN CONSENT

18 UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF ACME TECHNOLOGIES, INC. On March 18, 2003 Acme Technologies, Inc., a Delaware corporation (the Company ), entered into a letter of intent with Dynamic Research, Inc. ( Dynamic ), a company developing global positioning satellite technologies, to purchase preferred stock representing a 35% ownership interest in Dynamic. The Company has investigated Dynamic s operations, technologies, and corporate governance and has not uncovered any information to indicate that the Company should not consummate this transaction. The undersigned, constituting all the members of the Company s board of directors and acting by written consent in lieu of a meeting in accordance with section 141(f) of the Delaware General Corporation Law, therefore resolve as follows: that the Company s execution and delivery of the letter of intent is hereby ratified; that the Company enter into and perform its obligations under the preferred stock purchase agreement between the Company and Dynamic substantially in the form distributed to Company board members by e mail on March 12, 2002, and those ancillary agreements provided for therein to which the Company is a party, each with such changes, if any, as are acceptable to the officers of the Company in their sole discretion, execution and delivery of those documents by the Company to be conclusive evidence of that acceptability; and that each of the officers of the Company is hereby authorized to execute and deliver on behalf of the Company all such further documents, certificates, or instruments, to take on behalf of the Company all such further actions, and to pay on behalf of the Company all such expenses that the officers of the Company determine to be necessary or desirable in order to carry out the foregoing resolutions, the execution and delivery of any such documents, certificates, or instruments, the taking of any such actions, and the payment of any such expenses to be conclusive evidence of that determination.

19 This consent is being signed on May 17, 2003 John Doe Robert Roe Jane Doe SAMPLE 15 AFTER VERSION OF WRITTEN CONSENT