EXHIBIT 99(A)
ASSET PURCHASE AGREEMENT
dated February 16, 1996
between
GENERAL AQUATICS, INC.,
KDI SYLVAN POOLS, INC.,
as Buyer,
and
ANTHONY INDUSTRIES, INC.,
as Seller
CONTENTS
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Page
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ARTICLE I DEFINITIONS................................................................. 1
Section 1.01. "Affiliate"......................................................... 1
Section 1.02. "Affiliated Group".................................................. 1
Section 1.03 "Assets"............................................................ 2
Section 1.04. "Assumed Liabilities"............................................... 2
Section 1.05. "Balance Sheet Adjustments"......................................... 2
Section 1.06. "Buyer Contracts"................................................... 2
Section 1.07. "Buyer's Documents"................................................. 2
Section 1.08. "Buyer's Representatives"........................................... 2
Section 1.09. "Code".............................................................. 2
Section 1.10. "Closing", "Closing Time",
"Closing Date" and
"Closing Place"..................................................... 2
Section 1.11. "Closing Date Balance Sheet"........................................ 2
Section 1.12. "Common Stock"...................................................... 2
Section 1.13. "Contracts"......................................................... 2
Section 1.14. "Counsel for Aquatics".............................................. 3
Section 1.15. "Counsel for the Seller"............................................ 3
Section 1.16. "Debt Securities"................................................... 3
Section 1.17. "Division".......................................................... 3
Section 1.18. "Division Employees"................................................ 3
Section 1.19. "Environment"....................................................... 3
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Section 1.20. "Environmental Laws"................................................ 3
Section 1.21. "Environmental Permit".............................................. 3
Section 1.22. "ERISA"............................................................. 3
Section 1.23. "ERISA Affiliate"................................................... 3
Section 1.24. "ERISA Plan"........................................................ 3
Section 1.25. "Excluded Assets"................................................... 4
Section 1.26. "Excluded Liabilities".............................................. 4
Section 1.27. "Fixed Assets"...................................................... 4
Section 1.28. "GAAP".............................................................. 4
Section 1.29. "Governmental Authority"............................................ 4
Section 1.30. "Hazardous Substances".............................................. 4
Section 1.31. "Initial Shares".................................................... 4
Section 1.32. "Intellectual Properties"........................................... 4
Section 1.33. "IPO"............................................................... 5
Section 1.34. "Leases"............................................................ 5
Section 1.35. "Liens"............................................................. 5
Section 1.36. "Material Adverse Effect"........................................... 5
Section 1.37. "Multiemployer Plan"................................................ 5
Section 1.38. "Net Worth"......................................................... 5
Section 1.39. "PBGC".............................................................. 5
Section 1.40. "Permitted Liens"................................................... 5
Section 1.41. "Person"............................................................ 6
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Section 1.42. "Plan".............................................................. 6
Section 1.43. "Pro Forma Balance Sheet"........................................... 6
Section 1.44. "Properties"........................................................ 6
Section 1.45. "Release"........................................................... 6
Section 1.46. "Rights in the Name"................................................ 6
Section 1.47. "Securities"........................................................ 6
Section 1.48. "Seller's Documents"................................................ 6
Section 1.49. "Shares"............................................................ 6
Section 1.50. "Sites"............................................................. 6
Section 1.51. "Subsidiary"........................................................ 7
Section 1.52. "Taxes"............................................................. 7
Section 1.53. "Tax Authority"..................................................... 7
Section 1.54. "Tax Proceedings"................................................... 7
Section 1.55. "Tax Returns"....................................................... 7
Section 1.56. "Threat of Release"................................................. 7
Section 1.57. "Warn Act".......................................................... 7
Section 1.58. "Warrant Shares".................................................... 7
Section 1.59. "Warrants".......................................................... 8
Section 1.60. "Welfare Benefit Plan".............................................. 8
ARTICLE II PURCHASE AND SALE........................................................... 8
Section 2.01. Closing............................................................. 8
Section 2.02. Sale of Assets...................................................... 8
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Section 2.03. Payment of Purchase Price;
Assumption of Liabilities........................................... 11
Section 2.04. Closing Payment; Purchase
Price Adjustment.................................................... 14
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER............................... 16
Section 3.01. Organization and Good Standing...................................... 16
Section 3.02. Corporate Authorization;
Enforceability;
Non-Contravention................................................... 16
Section 3.03. Financial Statements................................................ 17
Section 3.04. Fixed Assets........................................................ 18
Section 3.05. No Subsidiaries; Ownership
of Assets........................................................... 18
Section 3.06. Taxes............................................................... 19
Section 3.07. Tax Nature of Assets................................................ 19
Section 3.08. Contracts........................................................... 19
Section 3.09. Leases.............................................................. 21
Section 3.10. Environmental....................................................... 21
Section 3.11. Real Property....................................................... 23
Section 3.12. Consent of Third Parties;
Governmental Approvals.............................................. 23
Section 3.13. Title............................................................... 23
Section 3.14. Intellectual Property............................................... 23
Section 3.15. Litigation.......................................................... 24
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Section 3.16. Compliance with Law................................................. 25
Section 3.17. Employees........................................................... 25
Section 3.18. Labor Disputes...................................................... 25
Section 3.19. Employee Benefit Plans.............................................. 25
Section 3.20. Intercompany Transactions........................................... 26
Section 3.21. Ordinary Course; No Material
Change.............................................................. 26
Section 3.22. Brokerage Commissions............................................... 26
Section 3.23. No Omission......................................................... 26
Section 3.24. Investment Intent................................................... 26
Section 3.25. Insurance........................................................... 27
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
THE BUYER AND AQUATICS...................................................... 27
Section 4.01. Organization and Good Standing...................................... 27
Section 4.02. Corporate Authorization; Enforceability;
Non-Contravention................................................... 27
Section 4.03. Financial Statements................................................ 28
Section 4.04. Consent of Third Parties;
Governmental Approvals.............................................. 28
Section 4.05. Litigation.......................................................... 28
Section 4.06. Compliance with Law................................................. 29
Section 4.07. Brokerage Commissions............................................... 29
Section 4.08. Authorized and Outstanding Stock.................................... 29
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Section 4.09. Shares to be Issued on
Conversion.......................................................... 30
Section 4.10. No Omission......................................................... 30
Section 4.11. Taxes............................................................... 31
Section 4.12. Ordinary Course; No Material
Adverse Change...................................................... 31
Section 4.13. Charter Documents................................................... 31
Section 4.14. Contracts........................................................... 31
Section 4.15. Affiliate Agreements................................................ 32
Section 4.16. Insurance........................................................... 33
Section 4.17. Environmental....................................................... 33
Section 4.18. Employee Benefit and Other Plans.................................... 34
ARTICLE V PRE-CLOSING COVENANTS OF THE SELLER......................................... 36
Section 5.01. Conduct of Business................................................. 36
Section 5.02. Contracts, etc...................................................... 36
Section 5.03. Employees........................................................... 37
Section 5.04. Other Offers, etc................................................... 37
Section 5.05. Access by the Buyer................................................. 37
Section 5.06. Consents............................................................ 38
Section 5.07. Notification........................................................ 38
Section 5.08. Conditions.......................................................... 38
ARTICLE VI PRE-CLOSING COVENANTS OF THE BUYER AND AQUATICS............................ 39
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Section 6.01. Notification........................................................ 39
Section 6.02. Conditions.......................................................... 39
Section 6.03. Access by the Seller................................................ 39
Section 6.04. Financial Statements................................................ 40
ARTICLE VII CONDITIONS TO THE BUYER'S AND AQUATICS' OBLIGATIONS........................ 40
Section 7.01. Representations and Warranties...................................... 40
Section 7.02. Covenants........................................................... 40
Section 7.03. Certificates........................................................ 40
Section 7.04. Opinion of Counsel.................................................. 40
Section 7.05. Governmental Consents............................................... 41
Section 7.06. Actions or Proceedings.............................................. 41
Section 7.07. Third Party Consents................................................ 41
Section 7.08. Creditors Approval.................................................. 41
Section 7.09. Legal Matters Satisfactory.......................................... 41
Section 7.10. No Material Adverse Effect.......................................... 42
ARTICLE VIII CONDITIONS TO THE SELLER' OBLIGATIONS.................................... 42
Section 8.01. Representations and Warranties...................................... 42
Section 8.02. Covenants........................................................... 42
Section 8.03. Certificates........................................................ 42
Section 8.04. Opinion of Counsel.................................................. 42
Section 8.05. Governmental Consents............................................... 42
Section 8.06. Actions or Proceedings.............................................. 43
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Section 8.07. Legal Matters Satisfactory.......................................... 43
Section 8.08. No Material Adverse Effect.......................................... 43
Section 8.09. Financial Statements................................................ 43
ARTICLE IX NON-COMPETITION; CONFIDENTIALITY............................................ 43
Section 9.01. Non-Competition..................................................... 43
Section 9.02. Confidentiality..................................................... 44
Section 9.03. Breach.............................................................. 44
Section 9.04. Severability........................................................ 44
Section 9.05. Termination Upon Occurrence of Termination Event.................... 45
ARTICLE X POST-CLOSING COVENANTS...................................................... 45
Section 10.01. Further Assurances.................................................. 45
Section 10.02. Accounts Receivable;
Authorization; Mail................................................. 45
Section 10.03. Retention of Records; Access........................................ 46
Section 10.04. Tax Matters......................................................... 46
Section 10.05. Seller Employees.................................................... 47
Section 10.06. Services Agreement.................................................. 48
Section 10.07. Maintenance of Insurance............................................ 48
Section 10.08. Right of the Seller to
Nominate Directors.................................................. 49
Section 10.09. Financial Statements................................................ 49
Section 10.10. Disposal of Gunite Rigs............................................. 50
Section 10.11. Leases.............................................................. 50
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Section 10.12. Removal of Underground Storage Tanks................................ 51
Section 10.13. Grant of Certain Stockholder Rights................................. 51
ARTICLE XI TERMINATION AND ABANDONMENT................................................. 51
Section 11.01. Termination......................................................... 51
Section 11.02. No Waiver........................................................... 52
ARTICLE XII INDEMNIFICATION............................................................ 52
Section 12.01. By the Seller....................................................... 52
Section 12.02. By the Buyer........................................................ 52
Section 12.03. Limitations; Remediation............................................ 53
Section 12.04. Notice of Claims.................................................... 54
Section 12.05. Third Party Claims.................................................. 54
Section 12.06. Payments............................................................ 55
Section 12.07. Remedies Exclusive.................................................. 55
Section 12.08. Certain Damages..................................................... 55
Section 12.09. Offsets............................................................. 55
ARTICLE XIII MISCELLANEOUS............................................................ 56
Section 13.01. Survival............................................................ 56
Section 13.02. Expenses............................................................ 56
Section 13.03. Notices............................................................. 56
Section 13.04. Amendment, etc...................................................... 57
Section 13.05. Governing Law....................................................... 57
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Section 13.06. Assignment.......................................................... 58
Section 13.07. Publicity........................................................... 58
Section 13.08. Counterparts........................................................ 58
Section 13.09. Captions............................................................ 58
Section 13.10. Third Parties....................................................... 58
Section 13.11. Hart-Scott-Rodino Filing............................................ 58
EXHIBITS
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EXHIBIT A Form Of Subordinated Note
EXHIBIT B Form of Warrant
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated the 16th day of February, 1996, between
GENERAL AQUATICS, INC., a Delaware corporation ("Aquatics"), KDI SYLVAN POOLS,
INC., a Delaware corporation and a wholly-owned subsidiary of Aquatics (the
"Buyer"), and ANTHONY INDUSTRIES, INC., a Delaware corporation (the "Seller").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS:
1. A division of the Seller (the "Division") is engaged in the business of
the construction and remodeling of residential inground swimming pools, the
distribution of swimming pool equipment, the manufacture, installation and
distribution of swimming pool covers and the servicing of swimming pools,
swimming pool equipment and swimming pool covers.
2. The Buyer desires to acquire, and the Seller desires to sell, all of
the assets (tangible and intangible), properties, business and goodwill of the
Seller directly or indirectly relating to the Division.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. "Affiliate" shall mean, with respect to any Person, any
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other Person directly or indirectly controlling, controlled by or under common
control with such Person. For purposes of this definition, "control" (including
with correlative meanings, the terms "controlling", "controlled by" or "under
common control with") as applied to any Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
powers of that Person, whether through the ownership of voting securities or by
contract or otherwise.
1
Section 1.02. "Affiliated Group" shall mean, with respect to the Seller or
----------------
Aquatics, any affiliated, consolidated, combined, unitary or similar group
(within the meaning of Section 1504 of the Code, or any comparable provision of
state or local law, as the case may be) of which the Seller or Aquatics, as the
case may be, is or was a member.
Section 1.03 "Assets" shall have the meaning ascribed to such term in
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Section 2.02.
Section 1.04. "Assumed Liabilities" shall have the meaning ascribed to
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such term in Section 2.03.
Section 1.05. "Balance Sheet Adjustments" shall mean the following
-------------------------
adjustments to be made to the financial statements of the Division: (i) all
inventory shall be accounted for on the FIFO method, (ii) the real property
owned by the Seller and located in Philadelphia, Pennsylvania shall be written-
up to its appraised value to be determined and currently estimated at $575,000,
(iii) no goodwill shall be included in the assets of the Seller, except for
$500,000 of goodwill with respect to the value of "Poolsaver", (iv) the gunite
rigs and related vehicles owned by the Seller shall be valued in the aggregate
at $368,000, and (v) all warranty accruals shall be prepared on a basis
consistent with past practices (or on a basis no less conservative than past
practices) and shall equal or exceed the sum of $250,000 and the aggregate
amount of all payments, obligations, or other liabilities which are required to
satisfy warranty claims known to the Seller as of the date of such financial
statements.
Section 1.06. "Buyer Contracts" shall have the meaning ascribed to such
---------------
term in Section 4.14(a).
Section 1.07. "Buyer's Documents" shall have the meaning ascribed to such
-----------------
term in Section 4.02.
Section 1.08. "Buyer's Representatives" shall have the meaning ascribed to
-----------------------
such term in Section 5.05.
2
Section 1.09. "Code" shall mean the Internal Revenue Code of 1986, as
----
amended from time to time, and any successor statute thereto.
Section 1.10. "Closing", "Closing Time", "Closing Date" and "Closing
------- ------------ ---------- -------
Place" shall have the meanings ascribed to such terms in Section 2.01.
- ----
Section 1.11. "Closing Date Balance Sheet" shall mean the balance sheet of
--------------------------
the Division described in Section 2.04.
Section 1.12. "Common Stock" shall mean the common stock, $.01 par value,
------------
of Aquatics.
Section 1.13. "Contracts" shall mean all leases (other than leases of real
---------
property), agreements, contracts and other legally binding commitments, whether
written or oral, to which the Seller is a party or by which it may be bound, and
pursuant to which it receives any benefit, directly or indirectly, relating to
the Division.
Section 1.14. "Counsel for Aquatics" shall mean Rosenman & Colin LLP.
--------------------
Section 1.15. "Counsel for the Seller" shall mean Gibson, Dunn & Crutcher.
----------------------
Section 1.16. "Debt Securities" shall mean the subordinated notes of
---------------
Aquatics to be issued pursuant to Section 2.04(a) in the form of Exhibit A
---------
hereto.
Section 1.17. "Division" shall have the meaning ascribed to such term in
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the recitals hereto.
Section 1.18. "Division Employees" shall mean those persons who, on the
------------------
Closing Date, are employed by the Seller or any of its Affiliates primarily in
connection with the business of the Division.
Section 1.19. "Environment" shall mean soil, surface waters, ground
-----------
waters, land, stream sediments, surface or subsurface strata, ambient air, and
any environmental medium.
3
Section 1.20. "Environmental Laws" shall mean any federal, state, or local
------------------
law, regulation, ordinance, rule, binding guideline, by-law or Governmental
Authority order regulating or relating to the protection of the Environment with
respect to Hazardous Substances, whether existing as of the date hereof,
previously enforced, or subsequently enacted.
Section 1.21. "Environmental Permit" shall mean any permit, license,
--------------------
approval, consent, or authorization issued by a Governmental Authority under or
pursuant to any Environmental Laws.
Section 1.22. "ERISA" shall mean the Employee Retirement Income Security
-----
Act of 1974, as amended from time to time.
Section 1.23. "ERISA Affiliate" shall mean, with respect to a Person, all
---------------
members of a controlled group of corporations and all trades and businesses
(whether or not incorporated) under common control and all other entities which,
together with such Person, are treated as a single employer under any or all of
Sections 414(b), (c), (m) or (o) of the Code at any time during the period of
five years ending on the Closing Date.
Section 1.24. "ERISA Plan" shall mean an "employee benefit plan" as
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defined in Section 3(3) of ERISA.
Section 1.25. "Excluded Assets" shall have the meaning ascribed to such
---------------
term in Section 2.02.
Section 1.26. "Excluded Liabilities" shall have the meaning ascribed to
--------------------
such term in Section 2.03.
Section 1.27. "Fixed Assets" shall have the meaning ascribed to such term
------------
in Section 3.04.
Section 1.28. "GAAP" shall mean generally accepted accounting principles.
----
Section 1.29. "Governmental Authority" shall mean any federal, state,
----------------------
local, foreign or other governmental or administrative body, instrumentality,
department, agency or any court, tribunal, administrative hearing, arbitration
panel, commission or other similar dispute resolving panel or body.
4
Section 1.30. "Hazardous Substances" shall mean (a) any pollutant, toxic
--------------------
substance, contaminant, chemical, hazardous waste, hazardous material, petroleum
product, oil, radioactive material or energy (whether such energy is radioactive
or not), the exposure to or release of which is prohibited, limited or regulated
by any Governmental Authority with jurisdiction over the Seller, the Division,
the Buyer, Aquatics, the Sites, or the operations or activity at the Sites under
or pursuant to any Environmental Law; (b) any substance, gas material or
chemical which is or may be defined as or included in the definition of
"hazardous substances," "toxic substances," "hazardous materials," "hazardous
wastes," or words of similar import under any Environmental Law; and (c) radon
gas, asbestos in any form which could or does become friable, urea formaldehyde
foam insulation, transformers or other equipment which contain dielectric fluid
containing levels of polychlorinated biphenyls in excess of federal, state or
local safety guidelines, whichever are more stringent.
Section 1.31. "Initial Shares" shall mean the shares of Common Stock to be
--------------
issued to the Seller on the Closing Date pursuant to Section 2.04(a) and shares
of stock or other securities of any class resulting from the reclassification,
split, combination, or other change thereof, dividends of securities paid
thereon, and securities of any other issuer received in exchange for such
Initial Shares in connection with any merger, consolidation, reorganization or
acquisition involving Aquatics.
Section 1.32. "Intellectual Properties" shall have the meaning ascribed to
-----------------------
such term in Section 3.14.
Section 1.33. "IPO" shall mean the consummation of the first underwritten
---
public offering of Common Stock pursuant to an effective registration statement
under the Securities Act of 1933, as amended, for the account of Aquatics.
Section 1.34. "Leases" shall have the meaning ascribed to such term in
------
Section 3.09.
5
Section 1.35. "Liens" shall mean any and all mortgages, pledges, liens,
-----
security interests, encumbrances and restrictions of every kind and nature,
other than Permitted Liens.
Section 1.36. "Material Adverse Effect" shall mean, with respect to any
-----------------------
Person or the Division, any event or circumstance which results in, or is
reasonably likely to result in, a material adverse change (financial or
otherwise) in the business, operations, properties, assets or condition of such
Person or the Division.
Section 1.37. "Multiemployer Plan" shall mean a "multiemployer plan" as
------------------
defined in Section 4001(a)(3) of ERISA.
Section 1.38. "Net Worth" shall mean the excess of the book value of the
---------
Assets over the Assumed Liabilities calculated in accordance with GAAP, except
as adjusted by the Balance Sheet Adjustments and the items listed in Schedule
3.03(a).
Section 1.39. "PBGC" shall mean the Pension Benefit Guaranty Corporation
----
or any person succeeding to the functions thereof.
Section 1.40. "Permitted Liens" shall mean (i) Liens for Taxes or
---------------
governmental assessments, charges or claims the payment of which is not yet due;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other similar Persons and other Liens imposed by
applicable law, rule or regulation incurred in the ordinary course of business
for sums not yet delinquent; (iii) Liens relating to deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security; and (iv) Liens on the
Properties which are disclosed in any preliminary title report delivered to the
Buyer on or before the date of this Agreement and which (a) do not materially
interfere with or impair the operations of any parcel of such Properties for the
purposes for which it is or may reasonably be expected to be used, (b) do not
require the payment of any money by the Buyer, (c) do not create any affirmative
obligations of the Buyer and (d) do not materially detract from the value of
such Properties.
6
Section 1.41. "Person" shall mean any individual, corporation,
------
partnership, limited liability company, limited liability partnership, joint
venture, estate, trust, cooperative, foundation, union, syndicate, league,
consortium, coalition, committee, society, firm, company or other enterprise,
association, organization or other entity or Governmental Authority or the
Division.
Section 1.42. "Plan" shall mean any plan, program, arrangement, agreement
----
or commitment which is a pension, profit sharing, savings, thrift or other
retirement plan (including, without limitation, any "employee pension benefit
plan" as defined in Section 3(2) of ERISA), deferred compensation, stock
purchase, stock option, performance share, bonus or other incentive plan,
severance pay plan, policy or procedure, life, health, disability or accident
insurance plan (including, without limitation, each Welfare Benefit Plan) or
vacation or other employee benefit plan, program, arrangement, agreement or
commitment, whether or not written.
Section 1.43. "Pro Forma Balance Sheet" shall have the meaning ascribed to
-----------------------
such term in Section 3.03.
Section 1.44. "Properties" shall have the meaning ascribed to such term in
----------
Section 3.11.
Section 1.45. "Release" shall mean any releasing, spilling, leaking,
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pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing, or dumping into the Environment.
Section 1.46. "Rights in the Name" shall have the meaning ascribed to such
------------------
term in Section 2.02.
Section 1.47. "Securities" shall mean the Common Stock and any other
----------
equity securities of Aquatics of any class or character whatsoever, whether now
or hereafter authorized.
Section 1.48. "Seller's Documents" shall have the meaning ascribed to such
------------------
term in Section 3.02.
Section 1.49. "Shares" shall mean the Initial Shares and the Warrant
------
Shares.
7
Section 1.50. "Sites" shall mean all locations owned or used by the
-----
Seller, Division or any Affiliate at any time prior to the Closing Date in
connection with the business of the Division.
Section 1.51. "Subsidiary" shall mean, with respect to any Person, any
----------
corporation, partnership, limited liability company, limited liability
partnership, joint venture, trust or other business entity of which more than
50% of the total voting power of shares of stock entitled to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the
Subsidiaries of that Person or a combination thereof.
Section 1.52. "Taxes" shall mean federal, state, local or foreign income,
-----
capital gains, profits, gross receipts, payroll, capital stock, franchise,
employment, withholding, social security, unemployment, disability, real
property, personal property, stamp, excise, occupation, sales, use, transfer,
mining, value added, investment credit recapture, alternative or add-on minimum,
environmental, estimated or other taxes, duties or assessments of any kind,
including any interest, penalty and additions imposed with respect to such
amounts.
Section 1.53. "Tax Authority" shall mean any federal, national, foreign,
-------------
state, municipal or other local government, any subdivision, agency, commission
or authority thereof, or any quasi-governmental body or other authority
exercising any taxing or tax regulatory authority.
Section 1.54. "Tax Proceedings" shall mean any audit, other administrative
---------------
proceeding or judicial proceeding involving Taxes.
Section 1.55. "Tax Returns" shall mean all returns and reports (including
-----------
schedules attached thereto) required to be filed with or supplied to a Tax
Authority with respect to Taxes.
Section 1.56. "Threat of Release" shall mean a substantial likelihood of a
-----------------
Release which requires action to prevent or mitigate damage to the Environment
which may result from such Release.
8
Section 1.57. "Warn Act" shall mean the Worker Adjustment and Retraining
--------
Notification Act.
Section 1.58. "Warrant Shares" shall mean the shares of Common Stock (and
--------------
any other securities) issuable upon exercise of the Warrants and shares of stock
or other securities of any class resulting from the reclassification, split,
combination, or other change thereof, dividends of securities paid thereon, and
securities of any other issuer received in exchange for such Warrant Shares in
connection with any merger, consolidation, reorganization or acquisition
involving the Buyer or Aquatics.
Section 1.59. "Warrants" shall mean the warrants of Aquatics to be issued
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to the Seller on the Closing Date pursuant to Section 2.04(a) in the form of the
Warrant attached hereto as Exhibit B and any other Warrants into which such
---------
Warrants may be divided or which may be issued in exchange or substitution
therefor, as the same may be amended, modified or supplemented from time to
time.
Section 1.60. "Welfare Benefit Plan" shall mean an "employee welfare
--------------------
benefit plan" within the meaning of Section 3(1) of ERISA.
ARTICLE II
PURCHASE AND SALE
Section 2.01. Closing. The closing (the "Closing") of the transactions set
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forth in this Article II shall take place at 10:00 A.M., Los Angeles time, on
February 29, 1996, at the offices of Gibson, Dunn & Crutcher, 2029 Century Park
East, Suite 4000, Los Angeles, California 90067, unless all of the conditions to
the Closing set forth in Articles VII and VIII have not been satisfied or waived
by the party entitled to waive the same, in which event the Closing shall occur
on the date two days after all such conditions have been so satisfied or waived
(or, if not a business day, the next succeeding business day), or unless a
different time, date or place is agreed to by the parties. (Hereinafter, such
date is referred to as the "Closing Date", such time on the Closing Date is
referred to as the "Closing Time" and such offices are referred to as the
"Closing Place.")
9
Section 2.02. Sale of Assets. At the Closing Time and at the Closing
--------------
Place, the Seller agrees that:
(a) It will convey, transfer, assign and deliver, or cause to be conveyed,
transferred, assigned and delivered, to the Buyer all the Seller's right, title
and interest in and to all of the assets and properties, tangible and
intangible, real, personal and mixed, used, owned or held by the Seller, in
connection with the business of the Division, wheresoever situated and whether
or not specifically referred to herein (the "Assets") free and clear of all
Liens, including, without limiting the generality of the foregoing, (1) all
accounts receivable, inventories, equipment, goods and supplies, proceeds under
insurance policies (excluding proceeds under insurance policies that relate to
Excluded Assets or Excluded Liabilities), other "current assets" (defined in
accordance with GAAP) and machinery, equipment and spare parts, furniture and
fixtures, and customer lists of the Seller directly or indirectly relating to
the Division, (2) all of the Seller's claims and rights of every kind under all
Contracts and Leases (except to the extent relating to counter-claims related to
Excluded Liabilities subject to the Seller making such claims in good faith),
(3) all of the Seller's business and good will directly or indirectly relating
to the Division, if any, as a going concern, (4) all assets and properties
reflected in the Closing Date Balance Sheet, (5) all of the Seller's rights with
respect to patents, patent applications, drawings, maskwork, software, service
manuals, trademarks, trademark applications, trade names, copyrights, trade
secrets, licenses, including, without limitation, the names "Anthony Pools" and
"Poolsaver," including all letterheads, logos, trademarks, advertisements and
other materials containing any of such names (such rights in such names being
hereinafter called the "Rights in the Name") and other Intellectual Properties
used in connection with the Division's business, (6) all of the Seller's rights
to memberships in trade organizations used in connection with the Division, (7)
all of the Seller's certifications, licenses, permits, Environmental Permits,
authorizations and approvals issued by any Governmental Authority used in
connection with the Division, (8) all of the Seller's claims and causes of
action against others relating to the Division (except to the extent relating to
the Excluded Assets or the Excluded Liabilities),
10
and (9) all of the Seller's rights, privileges and franchises and all of the
Seller's books and records relating to the Division. In addition to assets
excluded from the definition of Assets in the preceding sentence and
notwithstanding anything contained in the preceding sentence to the contrary,
the Seller is not selling, and the Buyer is not purchasing, and the Assets shall
not include the following (the "Excluded Assets"): (i) the Seller's minute
books, stock certificates books, tax returns, tax books, and records, and other
similar corporate records (provided, however, that the Seller shall provide
copies of the relevant portions thereof to the Buyer upon the Buyer's request),
(ii) the Seller's right, title and interest in, and to, any asset or property
(including any Contract, Lease, membership, certification, license, permit,
authorization or approval) the assignment or attempted assignment of which would
be invalid or would constitute a breach of any agreement or commitment to which
the Seller is a party or by which it may be bound; provided, however, that any
asset or property referred to in clause (ii) of this sentence and which would
otherwise be included in the definition of Assets shall be held and/or received
by the Seller for the use and at the direction and for the benefit of the Buyer,
in the case of certifications, licenses, permits, authorizations and approvals,
for a period of not less than 120 days, so that the Buyer will be, to the extent
practicable after the Seller has used commercially reasonable efforts and to the
extent not prohibited by law, in substantially the same economic position as if
such asset had been transferred to the Buyer at the Closing (except that with
respect to any Lease the assignment of which cannot be effected at the Closing,
the Seller covenants and agrees to make all payments and satisfy all other
obligations thereunder in accordance with its terms, until the time that any
such Lease may be assigned without constituting a breach thereof, and the Buyer
shall reimburse the Seller for any such payment as soon as practicable after the
Buyer has received written notice from the Seller that any such payments have
been made, provided, that, the Seller covenants and agrees that it shall not
make any such payment if the Buyer gives written instructions to the Seller
requesting that the Seller cease making such payments, subject to the Buyer
holding the Seller harmless from any damages from the failure to make such
payments), (iii) all cash and cash equivalents of the Division and any bank
account of the Seller
11
relating to the Division, (iv) any claims asserted by the Seller in any
litigation involving the Seller, whether or not disclosed in Schedule 3.15,
----
other then claims relating to the Assets or the Assumed Liabilities, (v) the
Seller's rights under all insurance policies, whether or not disclosed in any
Schedule hereto, to the extent relating to the Excluded Assets or the Excluded
Liabilities, (vi) all books, records, correspondence and other information
relating to the Excluded Assets or the Excluded Liabilities, (vii) the name
"Anthony Industries," including all letterheads, logos, trademarks,
advertisements and other materials containing such name and (viii) all Plans of
the Seller and any ERISA Affiliate of the Seller. Such conveyance, transfer,
assignment and delivery shall be effected by such assignments, deeds, bills of
sale and other instruments as shall be reasonably requested by Counsel for
Aquatics.
(b) The Seller shall constitute and appoint the Buyer the true and lawful
attorney of the Seller, with full power of substitution, in the name of the
Seller or in the name of the Buyer, but for the benefit of the Buyer and at the
expense of the Buyer (provided, however, that, the Seller's obligations will not
in any way be limited as a result of the Buyer undertaking such expense) (1) to
collect, assert or enforce any claim, right or title of any kind in or to the
Assets, to institute and prosecute all actions, suits and proceedings which the
Buyer may deem proper in order to collect, assert or enforce any such claim,
right or title, to defend and compromise all actions, suits and proceedings in
respect of any Asset, and to do all such acts and things in relation thereto as
the Buyer shall deem advisable and (2) to endorse, without recourse, the name of
the Seller on any check or other evidence of indebtedness received by the Buyer
on account of any Asset. The Seller acknowledges that such powers are coupled
with an interest and shall not be revocable by it in any manner or for any
reason, including its dissolution, and that the Buyer shall be entitled to
retain for its own account any amounts collected pursuant to such powers,
including any amounts payable as interest in respect thereof. Such powers shall
be granted by such powers of attorney and other instruments as shall be
reasonably requested by Counsel for Aquatics.
Section 2.03. Payment of Purchase Price; Assumption of Liabilities. At the
----------------------------------------------------
Closing Time and at the Closing Place, the Buyer and Aquatics agree that in full
payment of the purchase price for the Assets:
12
(a) The Buyer shall purchase the Assets for a purchase price (the "Purchase
Price") consisting of the following securities: (i) 100,000 shares of Common
Stock (representing 6% of the shares of Common Stock outstanding and deemed
outstanding as of the Closing Date calculated on a fully diluted basis,
including the shares issuable pursuant to this clause (i) and upon exercise of
the Warrants), (ii) Debt Securities in the form of Exhibit A hereto and in a
principal amount equal to the Net Worth of the Division as of the Closing Date,
and (iii) Warrants in the form of Exhibit B hereto exercisable for 455,556
shares of Common Stock (representing 27-1/3% of the shares of Common Stock
outstanding and deemed outstanding as of the Closing Date calculated on a fully
diluted basis, including the shares issuable pursuant to the foregoing clause
(i) of this sentence and upon exercise of the Warrants) with an aggregate
initial exercise price equal to the Net Worth of the Division as of the Closing
Date.
(b) From and after the Closing Date, the Buyer will assume and agree to
pay, perform and discharge only the following (the "Assumed Liabilities"):
(i) All of the "current liabilities" (defined in accordance with GAAP)
of the Division which are reflected in the Closing Date Balance Sheet.
(ii) All of the liabilities and obligations arising or accruing
subsequent to the Closing Time under the Contracts and the Leases, except the
obligation to pay the sum of $78,807.61 upon the occurrence of certain events
pursuant to Section 2 of that certain Promissory Note, dated April 7, 1995, of
Seller in the original principal amount of $129,142 and issued to Fairway
Industrial Company.
(iii) All liabilities and obligations, of any kind, character or
description, whether known or unknown, direct or indirect, absolute or
contingent, and whether or not reflected on the Pro Forma Balance Sheet or the
Closing Date Balance Sheet, of the Division for wrongful death, personal injury,
physical
13
property damage or any other injury, damage or harm of any nature allegedly
resulting from the products constructed, manufactured, sold or leased by the
Seller prior to the Closing Time or any other product liability claims in
connection with the business of the Division, but only if such wrongful death,
personal injury, physical property damage or other injury, damage or harm occurs
after the Closing Time.
(iv) All liabilities and obligations, of any kind, character or
description, whether known or unknown, direct or indirect, absolute or
contingent, and whether or not reflected on the Pro Forma Balance Sheet or the
Closing Date Balance Sheet, of the Division with respect to claims, whether
arising or made before or after the Closing Time, under warranties, whether
express, implied or granted by law, covering products or services of the
Division, unless such liability or obligation arises out of, or is in connection
with, any lawsuit or any other proceeding before a court of law pending as of
the Closing Date.
(v) All liabilities and obligations of the Seller with respect to the
earn-out to be paid by the Seller pursuant to that certain Consulting Agreement,
dated August 26, 1988, between the Seller and Flintridge Partnership, a general
partnership.
Notwithstanding anything to the contrary set forth in this Section 2.03(b), the
Assumed Liabilities shall not include the Excluded Liabilities.
(c) Neither the Buyer nor Aquatics has agreed to pay, shall not be required
to assume and shall not have any liability or obligation with respect to, any of
the following (collectively the "Excluded Liabilities"):
(i) Any liability or obligation of any kind, character or description,
whether known or unknown, direct or indirect, absolute or contingent, of the
Seller not specifically referred to in any of clauses (i) to (v) of Section
2.03(b), including, without limiting the generality of the foregoing, (A) any
current liability which is not reflected in the Closing Date Balance Sheet
(other than current liabilities specifically referred to in any of clauses (i)
to (v) of Section 2.03(b)), (B) any of the liabilities of the Seller for
borrowed money, or
14
any accrued interest thereon or current installments of principal thereof, or
any accrued interest on short term indebtedness for borrowed money, whether or
not incurred in the ordinary and regular course of the business of the Division
and whether or not reflected in the Closing Date Balance Sheet, (C) any
obligation under any Contract, which Contract is not either set forth in
Schedule 3.08 or is not required to be set forth in Schedule 3.08 or which was
---- ----
not assigned to the Buyer pursuant to Section 2.02, or under any Lease which is
not set forth in Schedule 3.09 or is not required to be set forth in Schedule
3.09 or which was not assigned to the Buyer pursuant to Section 2.02, (D) any
- ----
liability or obligation, direct or indirect, with respect to any Plan of the
Seller or any ERISA Affiliate and (E) any liability or obligation with respect
to severance benefits which are payable by the Seller to any employee of the
Seller.
(ii) Any liability or obligation for Taxes, whether direct, indirect
or contingent, of the Seller or any Affiliate or any Affiliated Group of the
Seller except as otherwise provided in Section 10.04(d).
(iii) Any liability or obligation, direct, indirect or contingent, of
the Seller for wrongful death, personal injury or physical property damage
(other than as a result of warranty claims assumed by the Buyer pursuant to
Section 2.03(b)(iv)) allegedly resulting from the use of or in connection with
swimming pools or products constructed, manufactured, sold or leased by the
Seller prior to the Closing Time, if such wrongful death, personal injury or
physical property damage occurs prior to the Closing Time.
(iv) Any liability or obligation, direct, indirect or contingent, of
the Seller in connection with the business of the Division or the Sites with
respect to events occurring prior to the Closing Date, arising out of or in
connection with Environmental Laws. For purposes of this Section 2.03(c)(iv),
events occurring prior to the Closing Date shall include, but not be limited to,
the use, handling, manufacture, generation, production, storage, treatment,
processing, transfer, Release, Threat of Release or disposal of Hazardous
Substances at, on or from any of the Sites prior to the Closing Date, or use,
handling, manufacture, generatation, production, storage,
15
treatment, processing, transfer, Release, Threat of Release or disposal of
Hazardous Substances by the Seller prior to the Closing Date, even if not
discovered until after the Closing Date.
(v) Any intercompany liability or obligation, direct, indirect or
contingent, of the Division to the Seller, whether or not reflected in the
Closing Date Balance Sheet.
(d) Except as otherwise provided in Section 2.02(a) with respect to Lease
payments, to the extent that the Seller effectively makes available to the
Buyer, or the Buyer otherwise realizes through performance, any benefit of any
Contract not listed in Schedule 3.08 which is required to be so listed, or of
----
any Lease not listed in Schedule 3.09, which is required to be so listed, or
----
under any Contract or Lease not assigned pursuant to Section 2.02(a), the Buyer
shall assume the corresponding obligations of the Seller thereunder.
Section 2.04. Closing Payment; Purchase Price Adjustment.
------------------------------------------
(a) At the Closing Time, the Buyer and Aquatics will issue and deliver to
the Seller (the "Closing Payment") (i) 100,000 shares of Common Stock, (ii) Debt
Securities in a principal amount equal to the Net Worth of the Division set
forth in the Pro Forma Balance Sheet, and (iii) Warrants exercisable for 455,556
shares of Common Stock with an aggregate initial exercise price equal to the Net
Worth of the Division set forth in the Pro Forma Balance Sheet.
(b) The Purchase Price will be adjusted as soon as practicable following
the Closing in accordance with this Section 2.04. Seller shall cause Ernst &
Young to deliver to Aquatics and Buyer within 30 days following the date of this
Agreement an audited Special Purpose Statement of Adjusted Net Worth (the "EY
Balance Sheet") setting forth the financial position of the Division as of
December 31, 1995 (exclusive of the Excluded Assets and Excluded Liabilities) in
accordance with GAAP (subject to the Balance Sheet Adjustments and the items set
forth in Schedule 3.03(a)).
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16
(c) As soon as practicable (but in no event later than 60 days after the
Closing Date) the Seller shall deliver a balance sheet of the Division as of the
Closing Date certified by the Seller's chief financial officer (the "Closing
Date Balance Sheet") and a calculation of the Net Worth of the Division as of
the Closing Date. The Closing Date Balance Sheet shall fairly reflect the
financial position of the Division as of the Closing Date (exclusive of the
Excluded Assets and Excluded Liabilities) and shall be prepared in accordance
with GAAP (subject to the Balance Sheet Adjustments and the items set forth in
Schedule 3.03(a)) and shall be prepared in accordance with the same principles
-------
as used in the preparation of the EY Balance Sheet.
(d) If the Net Worth of the Division set forth in the Closing Date Balance
Sheet is less than the Net Worth of the Division set forth in the Pro Forma
Balance Sheet, the aggregate principal amount of the Debt Securities and the
aggregate initial exercise price of the Warrants shall be reduced to the extent
of the difference. If the Net Worth of the Division set forth in the Closing
Date Balance Sheet is more than the Net Worth of the Division set forth in the
Pro Forma Balance Sheet, the aggregate principal amount of the Debt Securities
and the aggregate initial exercise price of the Warrants shall be increased to
the extent of the difference. Notwithstanding the foregoing provisions of this
Section 2.04(d), no adjustment to the aggregate exercise price of the Warrants
pursuant to this Section 2.04 shall result in the Warrants being exercisable
into more or less than 27-1/3% of the shares of Common Stock deemed outstanding
as of the Closing Date on a fully diluted basis.
(e) The Seller shall provide the Buyer and the Buyer's accountants and
attorneys with access to all work papers, documents, receipts, invoices and
other materials and reasonable access to the Seller's personnel during regular
business hours as may be necessary or reasonably requested by the Buyer in its
review of the Closing Date Balance Sheet. If the Buyer does not timely deliver
a "Contest Notice" (as hereinafter defined) in accordance with Section 2.04(f),
the Closing Date Balance Sheet and the Purchase Price as adjusted will be final
and binding on all the parties.
17
(f) In the event that the Buyer contests any part of the Purchase Price as
adjusted, as set forth above, the Buyer shall give written notice of its
objections thereto (a "Contest Notice") within 60 days following the delivery of
the Closing Date Balance Sheet. Any such Contest Notice shall specify in
reasonable detail the nature of any disagreement asserted and the amount claimed
by the Buyer.
(g) During the period of 30 days following the timely delivery of any such
Contest Notice, the Buyer and the Seller shall attempt to resolve any
differences which the Buyer and the Seller may have with respect to any matter
specified in the Contest Notice (which resolution, if any, shall be final and
binding on all the parties). If, at the end of such 30 day period, the Buyer
and the Seller shall fail to reach written agreement with respect to all of such
matters, then all such matters specified in any Contest Notice with respect to
which such written agreement has not been reached and any matters directly
related thereto (the "Disputed Matters") shall be submitted to and arbitrated by
an independent certified public accounting firm of national standing (the
"Arbitrator") mutually selected by the Buyer's accountants and the Seller's
accountants, respectively. The Arbitrator shall consider only the Disputed
Matters. The Arbitrator shall act promptly, and the Arbitrator's decision with
respect to all Disputed Matters shall be final and binding upon the parties
hereto.
(h) The fees and expenses of the Arbitrator incurred in connection with its
review and determination of any Disputed Matters shall be borne one-half by the
Buyer and one-half by the Seller.
(i) If the Net Worth of the Division as set forth in the Closing Date
Balance Sheet as finally determined pursuant to Section 2.04 (e), (f) and (g) is
different from the Net Worth of the Division as set forth in the Closing Date
Balance Sheet as delivered pursuant to Section 2.04(c), then the aggregate
principal amount of the Debt Securities and the aggregate exercise price of the
Warrant shall be readjusted in accordance with the provisions of Section
2.04(d).
18
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to Aquatics and the Buyer that:
Section 3.01. Organization and Good Standing. The Seller is a corporation
------------------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware; has the full corporate power and authority to conduct all of
the business and activities conducted by it and to own or lease all of the
assets owned or leased by it, and is duly licensed or qualified to do business
and in good standing as a foreign corporation under the laws of every
jurisdiction in which the nature of the activities conducted by the Seller
and/or the character of the assets owned or leased by the Seller makes such
qualification or license necessary, except for those jurisdictions where the
failure to be so qualified would not have a Material Adverse Effect on the
Seller or the Division.
Section 3.02. Corporate Authorization; Enforceability; Non-
---------------------------------------------
Contravention. The Seller has taken all corporate action required to be taken by
- -------------
it to authorize the execution and delivery of this Agreement and the agreements
to be executed and delivered by it hereunder (together with this Agreement, the
"Seller's Documents") and the transactions hereby and thereby contemplated. The
Seller has the corporate power and authority to execute and deliver the Seller's
Documents and to consummate the transactions hereby and thereby contemplated and
to take all other actions required to be taken by it pursuant to the provisions
hereof and thereof; and this Agreement is, and the other Seller's Documents on
the Closing Date will be, valid and binding upon and enforceable against the
Seller in accordance with their respective terms. Except as set forth on
Schedule 3.02 or Schedule 3.12, neither the execution and delivery of the
---- ----
Seller's Documents nor the consummation of the transactions thereby contemplated
(a) will constitute any violation or breach of (i) the Certificate of
Incorporation or the By-Laws the Seller, (ii) any provision of any Contract
required to be listed on Schedule 3.08 or any Lease or (iii) any order, writ,
----
injunction, decree, statute, rule or regulation, or (b) will result in the
creation of any Lien on any of the Assets.
19
Section 3.03. Financial Statements. (a) The Seller has delivered to the
--------------------
Buyer unaudited pro forma financial statements of the Division, consisting of a
pro forma balance sheet as of December 31, 1995 (the "December 31, 1995 Balance
Sheet") and a pro forma statement of income for the year ended December 31,
1995. All of such financial statements have been prepared in accordance with the
books and records of the Seller and the Division, and said financial statements
present fairly the financial position of the Division as of December 31, 1995,
and present fairly the results of operations of the Division for the year ended
December 31, 1995, all in conformity with GAAP, except for (i) the exclusion of
the Excluded Assets and Excluded Liabilities, (ii) the Balance Sheet Adjustments
and (iii) those items set forth in Schedule 3.03(a). As of December 31, 1995,
-------
neither the Seller nor the Division had any liabilities (which were, with
respect to the Division and the Seller, incurred in connection with the business
of the Division), absolute, contingent or otherwise, required by GAAP to be
reflected, and which were not so reflected, in the December 31, 1995 Balance
Sheet except for the Excluded Liabilities and any liabilities excluded by the
Balance Sheet Adjustments and the items set forth on Schedule 3.03(a). The
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Seller has also delivered to the Buyer an unaudited estimated pro forma
balance sheet of the Division as of February 29, 1996 (the "Pro Forma Balance
Sheet") estimated in good faith and otherwise prepared in conformity with the
December 31, 1995 Balance Sheet.
(b) Except as set forth in Schedule 3.03(b), the FIFO costed inventory
-------
reflected in the December 31, 1995 Balance Sheet was, and all inventory owned by
the Seller for use in connection with the business of the Division as operated
as of the Closing Time will be (except to the extent of any inventory reserves
included in the December 31, 1995 Balance Sheet), (i) usable in the ordinary
course of the Division's business, containing no material amount of slow-moving,
obsolete or damaged goods which have not been written down in conformity with
GAAP, (ii) owned by the Seller free and clear of all Liens and (iii) of a size
and amount in accordance with the normal practices of the business of the
Division. Such inventory is located at the locations set forth in Schedule
3.03(b).
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20
(c) Except as set forth in Schedule 3.03(c), the trade and accounts
-------
receivable reflected in the December 31, 1995 Balance Sheet were incurred in the
ordinary course of business and the amount set aside for reserves for trade and
accounts receivable set forth in the Closing Date Balance Sheet shall equal or
exceed the aggregate amount of accounts receivable transferred from the Seller
to the Buyer at the Closing which the Buyer is unable to collect on or prior to
December 31, 1996 after using efforts consistent with the Division's past
practices.
(d) Provided that the Buyer settles or otherwise satisfies all warranty
claims in a manner consistent with the Division's past practices, the amount set
aside for reserves for warranty claims in the Closing Date Balance Sheet shall
equal or exceed the aggregate amount of all payments, obligations or other
liabilities which the Buyer makes or satisfies as a result of assuming pursuant
to Section 2.03(b)(iv) the obligations and liabilities with respect to the
warranty claims known to the Seller as of the Closing Date. Schedule 3.03(d)
-------
sets forth a complete list of outstanding warranty claims relating to the
Division known to the Seller as of the date hereof.
(e) To the best knowledge of the Seller, there are no Contracts the
performance of which will result in losses to the Division in the aggregate for
all such Contracts, in excess of $100,000. For purposes of calculating losses
pursuant to this Section 3.03(e), the only costs to be taken into account shall
be costs for materials and direct labor.
(f) The backlog of the Division as of the date hereof is as set forth in
Schedule 3.03(f).
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Section 3.04. Fixed Assets. Set forth in Schedule 3.04 is a true, complete
------------ ----
and correct list of each item of machinery, equipment, spare parts, automobiles,
computers, furniture, and other tangible assets (whether under lease or
otherwise) of the Seller with a book value in excess of $10,000 relating to the
business of the Division (collectively, the "Fixed Assets"). The Fixed Assets
are in normal operating condition and repair, taking into account their age and
normal wear and tear, containing no material amount of obsolete, damaged or
unrepaired items which have not been written down in conformity with generally
accepted
21
accounting principles, applied on a consistent basis with prior
periods; provided, however, that the Seller makes no representation or warranty
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in this Section 3.04 or any other provision of this Agreement with respect to
the condition and repair or degree of obsolescence of any gunite rigs and
related vehicles comprising any part of the Assets.
Section 3.05. No Subsidiaries; Ownership of Assets. The Assets do not
------------------------------------
include any shares of stock or any other securities of any corporation or any
interest in any firm, partnership, association or other entity. All of the
assets and properties used in whole or primarily in connection with the business
of the Division by the Seller as of the date hereof are owned, leased or held by
the Seller, except as set forth in Schedule 3.05, and all of the assets and
----
properties used in whole or primarily in connection with the business of the
Division, including, without limitation, all those set forth on said Schedule
3.05, will be owned, leased or held by the Seller immediately prior to the
- ----
Closing Time. The Assets are adequate and suitable for the conduct of the
business of the Division in the same manner as presently conducted by the
Seller.
Section 3.06. Taxes.
-----
(a) There are no tax Liens on any Assets that arose in connection with any
failure (or alleged failure) to pay any Tax.
(b) All amounts required to be withheld by the Seller or any of its
Affiliates or Affiliated Groups, from employees for income, social security and
other payroll taxes have been collected and withheld, and have either been paid
to the respective governmental agencies, set aside in accounts for such purpose,
or accrued and reserved against and entered upon the books and records of the
Seller or its Affiliates or Affiliated Groups, as the case may be.
Section 3.07. Tax Nature of Assets. None of the Assets constitutes tax-
--------------------
exempt financed property or tax-exempt use property within the meaning of
Section 168 of the Code, and none of the Assets is subject to a lease, safe-
harbor lease, or other arrangement as a result of which the Seller is not
treated as the owner for federal income tax purposes.
22
Section 3.08. Contracts. (a) Schedule 3.08 contains a complete and correct
--------- ----
list of, or where indicated forms of, all the following Contracts relating to
the business of the Division to which the Seller is a party or by which the
Seller is bound:
(i) All forms of Contracts for the construction and remodeling of
residential inground swimming pools currently used by the Division
("Construction Contracts") and a list of all Construction Contracts known
to Seller;
(ii) All forms of Contracts with respect to the sale of swimming pool
covers currently used by the Division ("Pool Cover Contracts") and a list
of all Pool Cover Contracts known to Seller;
(iii) Contracts with dealers or persons performing installation or
servicing for the distribution of swimming pool equipment, the manufacture,
installation and distribution of swimming pool covers and the servicing of
swimming pools and swimming pool equipment and requiring, in the case of
each such Contract, the payment of in excess of $10,000 in any year
(collectively, "Swimming Pool Equipment Contracts");
(iv) equipment lease Contracts requiring, in the case of each such
Contract, the payment of in excess of $10,000;
(v) purchase and sales commitments in excess of $25,000 in any single
case or $100,000 in the aggregate for any one customer or vendor, as the
case may be, other than Construction Contracts and Swimming Pool Equipment
Contracts;
(vi) commitments or agreements (other than Construction Contracts and
Pool Cover Contracts) for services for which a prepayment or advance in
excess of $10,000 has been made to or by or on behalf of the Seller;
(vii) commitments or agreements (other than Construction Contracts and
Pool Cover Contracts) which provide for installments or progress payments
to the Seller;
23
(viii) commitments or agreements not made in the ordinary and regular
course of business;
(ix) Contracts between the Seller and any officer, director or
employee of the Seller or any entity controlled, directly or indirectly, by
such person;
(x) commitments or agreements with respect to services calling for
annual payments in excess of $20,000 or having a term in excess of one year
(other than Construction Contracts, Pool Cover Contracts and Swimming Pool
Equipment Contracts);
(xi) partnership or joint venture contracts or arrangements or any
other agreements involving a sharing of revenues or profits material to the
Assets to which the Seller is a party or by which the Seller is bound;
(xii) contracts for the sale of any of the Assets or the grant of any
rights to purchase any of the Assets (other than inventory sales in the
ordinary course of business);
(xiii) Contracts with consultants, advisors, salespeople, sales
representatives, distributors, lobbyists, dealers or independent
contractors to which the Seller is a party or by which the Seller is bound
and requiring, in the case of each such Contract, the payment by the Seller
of in excess of $100,000 in any year; and
(xiv) Contracts to which the Seller is a party or by which the Seller
is bound restricting the Seller from carrying on its business in its
entirety in any jurisdiction.
(b) Except as listed in Schedule 3.08, the Seller is not a party to any
----
written or oral (i) employment Contract of any nature with any officer, director
or employee of the Division or (ii) Contract of any other nature with any
officer, director or employee of the Division, or any of their affiliates or
relatives. A copy of each Contract or form of Contract listed in Schedule 3.08
----
has been delivered to the Buyer.
24
(c) Except as set forth on Schedule 3.08, the Seller has performed all
----
material obligations required to be performed by it and is not in default under
any Contract, which default would entitle the other party to such Contract to
terminate such Contract or accelerate the Seller's obligations thereunder, and
no event has occurred which, with the lapse of time or the giving of notice or
both, would constitute such a default by the Seller or, to the knowledge of the
Seller, by any other party to any such Contract. All of the Contracts are
valid, binding and enforceable against the Seller and, to the best of the
Seller's knowledge, against the other party thereto in accordance with their
respective terms and in full force and effect.
Section 3.09. Leases. (a) Schedule 3.09 is a complete list of all leases
------ ----
of real property in effect as of the date hereof used or held for use in
connection with the business of the Division and under which the Seller or any
Affiliate of the Seller is the tenant (the "Leases"). True and complete copies
of all Leases have been made available to the Buyer. All of the Leases are
valid, binding and enforceable against the Seller and, to the best of the
Seller's knowledge, against the other party thereto in accordance with their
terms, and are in full force and effect. The Seller is not in default under any
such Lease, which default would entitle the other party to such Lease to
terminate such Lease or accelerate the Seller's obligations thereunder, and no
event has occurred thereunder which, with the lapse of time or the giving of
notice, would constitute such a default, and to the knowledge of the Seller, no
other party to any such Lease is in default thereunder.
Section 3.10. Environmental. Except as set forth on Schedule 3.10, on the
-------------
date hereof and as of the Closing Date:
(a) (i) The activities, operations and business carried out by the
Division, including, but not limited to, the business conducted at the Sites by
the Division, are and have been at all times in compliance with all applicable
Environmental Laws;
(ii) as to each of the Sites and other properties currently or
previously used for the business of the Division, no Hazardous Substances have
been Released to the Environment on, at, under or from such property in any
amount that has required
25
or will require investigation or other remedial action pursuant to any
applicable Environmental Law or that otherwise has given or will give rise to
any claim of liability by any Governmental Authority or other third party; and
(iii) no Hazardous Substances have been shipped by the Division or
from any Site to an offsite facility that have given or will give rise to any
claim of liability for investigation or other remedial action pursuant to any
applicable Environmental Law or that otherwise have given or will give rise to
any claim of liability by any Governmental Authority or other third party.
(b) (i) The Seller is not aware of any pending litigation or proceedings
before any administrative agency in which any person or entity alleges the
violation of any Environmental Law by the Division, the Release or Threat of
Release of Hazardous Substances on, at, under or from any of the Sites or any
other property currently or previously used for the business of the Division or
any liability of the Seller with respect to any Hazardous Substances that have
been shipped by the Division or from any Site to an offsite facility;
(ii) The Seller has not received any written notice that any
Governmental Authority or other third party, or any employee or agent thereof,
has determined, threatens to determine or requires an investigation or further
information to determine that there exists any violation of any Environmental
Law, a Release or Threat of Release of Hazardous Substances requiring
investigation or other remedial action on, at, under or from the Sites or any
other property currently or previously used for the Business of the Division or
any liability of Seller with respect to any Hazardous Substances that have been
shipped by the Division or from any Site to an offsite facility;
(iii) The Seller has not received any notice under any citizen suit
provision of any Environmental Law regarding any of the Sites.
(c) No Lien has been imposed on any of the Assets by any Governmental
Authority under any Environmental Laws.
26
(d) The Seller has all Environmental Permits necessary for the activities
and operations of the Division.
(e) No underground storage tanks containing Hazardous Substances presently
exist on, at or under Sites, other than tanks disclosed in the reports provided
to Buyer prior to the Closing Date regarding a facility at the East Norriton
Township, Pennsylvania, and a facility at Springfield, Virginia.
Section 3.11. Real Property. (a) Except as set forth in Schedule 3.11, the
------------- ----
Seller owns legal and beneficial fee title to the real property listed in
Schedule 3.11 which is owned by the Seller and used in connection with the
----
business of the Division (collectively, the "Properties"), free and clear of all
Liens.
(b) There are no agreements (written or oral) in the nature of space
leases, licenses, permits, franchises, concessions or occupancy agreements
affecting the Properties.
(c) There are no special or other assessments for public improvements or
otherwise now affecting the Properties and the Seller has no knowledge of (i)
any pending or threatened special assessments affecting the Properties or (ii)
any contemplated improvements affecting the Properties that may result in
special assessments affecting the Properties.
(d) The Properties and the current use, occupation and condition thereof do
not violate, in a manner which would materially affect the current use or value
of the Properties, any applicable deed restrictions, easements or other
covenants, restrictions or agreements, site plan approvals, zoning or
subdivision regulations or urban redevelopment plans applicable to the
Properties.
Section 3.12. Consent of Third Parties; Governmental Approvals. Except as
------------------------ ----------------------
set forth in Schedule 3.12, no authorization, approval, order, license, permit,
----
franchise, or consent and no registration, declaration or filing by or with any
Governmental Authority and no consent by or from any third party is required in
connection with the execution and delivery by the Seller of this Agreement or
the Seller's Documents and the consummation by the Seller of the transactions
contemplated hereby and
27
thereby (including, without limitation, the consent of any third party to the
assignment to the Buyer of any Contract required to be listed in Schedule 3.08
----
or Lease).
Section 3.13. Title. The Seller has good and marketable title to all of
-----
the Assets free and clear of all Liens. The Seller has not disposed of any
assets or properties reflected in the December 31, 1995 Balance Sheet or
acquired by the Seller since December 31, 1995, outside of the ordinary course
of business of the Division.
Section 3.14. Intellectual Property. Except as set forth in Schedule 3.14,
--------------------- ----
the Seller owns or possesses adequate franchises, licenses or other rights to
use all patents, patent applications, maskwork, trade secrets, inventions,
processes, drawings, service manuals, software, and copyrights (including all
renewals and extensions thereof), licenses, franchises, trademarks, trademark
registrations, trademark applications, trade names, service marks, logos and the
Rights in the Names (collectively, the "Intellectual Properties") necessary to
conduct the business of the Division in substantially the manner as presently
conducted Schedule 3.14 is a complete and correct list of all of the Seller's
----
Intellectual Properties (other than trade secrets, inventions, processes, and
drawings). Except as otherwise set forth in Schedule 3.14, the Seller owns each
----
of the Intellectual Properties, free and clear of all Liens, and all of the
Intellectual Properties are included in the Assets. Except as set forth in
Schedule 3.14, the Seller has filed all certificates, affidavits and other
----
documents and taken all other actions necessary to obtain its title to each of
the Intellectual Properties which is a registered trademark, a patent or a
registered copyright and to keep the same in effect. Except as set forth in
Schedule 3.14, and except in connection with the ongoing sale of products or
----
services in the ordinary course of business, the Seller has not granted to any
Person any interest in any of the Intellectual Properties, as licensee or
otherwise. Except as set forth in Schedule 3.14, each of the Intellectual
----
Properties is assignable to the Buyer without the consent of any third party and
without any payment or penalty. Except as set forth in Schedule 3.14, to the
----
best of Seller's knowledge, all of the Intellectual Properties are valid and
none infringes on the property rights of any third party. Except as set forth in
28
Schedule 3.14, the Seller has not received any notification of infringement
----
in connection with the business of the Division of any property rights of third
parties. Except as set forth in Schedule 3.14, to the best of Seller's
----
knowledge no third party is infringing on the Division's rights to the
Intellectual Properties. Except as set forth in Schedule 3.14, no officer,
----
director, employee or shareholder, or former officer, director, employee or
shareholder of the Seller owns or has any interest in any of the Intellectual
Properties.
Section 3.15. Litigation. Except as set forth in Schedule 3.15, there is
---------- ----
no action, suit or proceeding pending or, to the Seller's knowledge, threatened
(but with respect to Construction Contracts and Pool Cover Contracts only those
threatened in writing) against the Seller relating to the business of the
Division, and the Seller has not received any notice of any pending or
threatened (but with respect to Construction Contracts and Pool Cover Contracts
only those threatened in writing) action or proceeding relating to the business
of the Division, in any court, before any arbitrator or arbitration tribunal or
before or by any other Governmental Authority. The Seller is not in default
under or with respect to any judgment, order or decree of any court, any
arbitrator or arbitration tribunal or any other Governmental Authority, against
or affecting the business of the Division or any of the Assets, and, except as
set forth in Schedule 3.15, there is no outstanding judgment, order or decree of
any court, any arbitrator or arbitration tribunal or any other Governmental
Authority, against or adversely affecting the business of the Division or any of
the assets used in connection, in whole or primarily, with the business of the
Division.
Section 3.16. Compliance with Law. Except as set forth in Schedule 3.16
------------------- ----
and except with respect to Environmental Laws and Environmental Permits (which
are addressed in Section 3.10): The Seller is in compliance with all laws,
regulations and orders applicable to the business of the Division and the
Assets. The Seller has maintained in full force and effect all certificates,
licenses, permits, authorizations and approvals (other than Environmental
Permits) required by any Governmental Authority and which are necessary for the
operation of the Division in substantially the same manner as currently operated
by the Seller. All such licenses, permits, authorizations and approvals
29
are set forth in Schedule 3.16, are issued or held in the Seller's name, except
----
as set forth on said Schedule 3.16, and, except as set forth on said Schedule
----
3.16, are assignable to the Buyer without any consent of any Governmental
- ----
Authority.
Section 3.17. Employees. Schedule 3.17 is a complete and correct list of
--------- ----
Division Employees, setting forth the name, title, and annual compensation
(including 1995 bonus) of the twenty-five most highly compensated persons, and
setting forth the salary ranges of all other classes of employees on the payroll
of the Division.
Section 3.18. Labor Disputes. Except as set forth in Schedule 3.18, (i)
-------------- ----
the Seller is not a party to any labor union contract or collective bargaining
agreement in connection with the Division Employees and (ii) there are no
material disturbances, disputes, grievances or claims pending or, to the
Seller's knowledge, threatened, in connection with such employees.
Section 3.19. Employee Benefit Plans. With respect to each ERISA Plan
----------------------
which the Seller or any ERISA Affiliate of the Seller maintains or contributes
to, or has any obligation to contribute to, or, during the last six years, has
maintained, contributed to or been obligated to contribute to, or with respect
to which the Seller or any ERISA Affiliate of the Seller may incur liability
(directly or indirectly, pursuant to Section 4069 of ERISA or otherwise) and
(a) which is a defined benefit pension plan subject to Title IV of ERISA or
to the minimum funding requirements of Section 412 of the Code or Section 302 of
ERISA, there is no accumulated funding deficiency within the meaning of Section
302 of ERISA (waived or unwaived and based on current actuarial assumptions) and
no event has occurred that would cause the Seller or any ERISA Affiliate of the
Seller to incur any liability under Title IV of ERISA; or
(b) which is a Multiemployer Plan, neither the Seller nor any ERISA
Affiliate of the Seller has any liability, for a withdrawal or otherwise,
whether or not asserted.
30
Section 3.20. Intercompany Transactions. Except as set forth in Schedule
-------------------------
3.20, the Seller, in connection with the business of the Division, is not a
- ----
party to any Contract, Lease or arrangement with any Affiliate of the Seller,
including, without limitation, any intercompany loan transaction or intercompany
service arrangement.
Section 3.21. Ordinary Course; No Material Change. Except as set forth in
-----------------------------------
Schedule 3.21, since December 31, 1995 (i) the business of the Division has been
----
conducted in the ordinary and regular course thereof, and (ii) there has not
been any Material Adverse Effect with respect to the Division.
Section 3.22. Brokerage Commissions. The Seller has not incurred any
---------------------
liability for finder's, brokerage, agent's or advisory fees or commissions in
connection with this Agreement or the transactions hereby contemplated.
Section 3.23. No Omission. No representation or warranty by the Seller
-----------
made in this Agreement or any exhibit hereto and no Schedule or certificate
furnished or to be furnished to the Buyer pursuant to or in connection with this
Agreement or any of the transactions hereby contemplated contains or will
contain any untrue statement of a material fact or omits or will omit to state a
material fact necessary in order to make the statements contained herein or
therein, in the light of the circumstances in which they are made, not
misleading.
Section 3.24. Investment Intent. The Seller is acquiring the shares of
-----------------
Common Stock issuable pursuant to Section 2.04(a), the Warrants and the Debt
Securities for its own account for investment purposes and not with a view to,
or in connection with, any resale or distribution of the shares of Common Stock
issuable pursuant to Section 2.04(a), the Warrants and the Debt Securities in
violation of the Securities Act of 1933, as amended (the "Securities Act"), or
any applicable state securities laws. The Seller acknowledges that the shares of
Common Stock issuable pursuant to Section 2.04(a), the Warrants and Debt
Securities have not been registered under the Securities Act or any applicable
state securities laws and may not be resold absent such registration or an
available exemption from registration thereunder. The Seller represents that it
is sophisticated in
31
financial matters and that it has the ability to bear the economic risks of its
investment for an indefinite period of time.
Section 3.25. Insurance. Schedule 3.25 is a true, complete and correct
--------- ----
list and brief description of all policies of fire, liability, and other forms
of insurance held by the Division, or by the Seller on behalf of the Division,
together with their respective termination dates.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE
BUYER AND AQUATICS
Aquatics and the Buyer, jointly and severally, represent and warrant to the
Seller that:
Section 4.01. Organization and Good Standing. Each of the Buyer and
------------------------------
Aquatics is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware; has the full corporate power and
authority to conduct all of the business and activities conducted by it and to
own or lease all of the assets owned or leased by it, and is duly licensed or
qualified to do business and in good standing as a foreign corporation under the
laws of every jurisdiction in the United States in which the nature of the
activities conducted by the Buyer or Aquatics, as the case may be, and/or the
character of the assets owned or leased by the Buyer or Aquatics, as the case
may be, makes such qualification or license necessary, except for those
jurisdictions where the failure to be so qualified would not have a Material
Adverse Effect on the Buyer or on Aquatics, as the case may be.
Section 4.02. Corporate Authorization; Enforceability; Non-Contravention.
----------------------------------------------------------
Each of the Buyer and Aquatics has taken all corporate action required to
be taken by it to authorize the execution and delivery of this Agreement and the
agreements to be executed and delivered by it hereunder (together with this
Agreement, the "Buyer's Documents") and the transactions hereby and thereby
contemplated, including the issuance of the Common Stock, the Warrants and the
Debt Securities and the Common Stock
32
issuable upon the exercise of the Warrants. Each of the Buyer and Aquatics has
the corporate power and authority to execute and deliver the Buyer's Documents
and to consummate the transactions thereby contemplated and to take all other
actions required to be taken by it pursuant to the provisions thereof; and this
Agreement is, and the other Buyer's Documents on the Closing Date will be, valid
and binding upon and enforceable against the Buyer and Aquatics, as applicable,
in accordance with their respective terms. Neither the execution and delivery of
the Buyer's Documents nor the consummation of the transactions thereby
contemplated (a) will constitute any violation or breach of (i) the Certificate
of Incorporation or the By-Laws of the Buyer or Aquatics, (ii) any provision of
any contract, or lease or other agreement or commitment to which either the
Buyer or Aquatics is a party or by which either is bound or (iii) any order,
writ, injunction, decree, statute, rule or regulation, or (b) will result in the
creation of any Lien on any of the assets or properties of the Buyer or
Aquatics.
Section 4.03. Financial Statements. Aquatics has delivered to the Seller
--------------------
preliminary unaudited consolidated and consolidating pro forma financial
statements of Aquatics, including a balance sheet as of December 31, 1995 and a
pro forma statement of income for the year ended December 31, 1995. All of such
financial statements have been prepared in accordance with the books and records
of Aquatics and the accounting principles, policies and practices of Aquatics,
and such financial statements present fairly the consolidated financial position
of Aquatics as of December 31, 1995 and present fairly the pro forma
consolidated result of operations of Aquatics for the year ended December 31,
1995 all in conformity with GAAP except as set forth in Schedule 4.03. Neither
----
Aquatics nor the Buyer has any liabilities, absolute, contingent or
otherwise, which were required by GAAP to be reflected, and which were not
reflected, in such financial statements.
Section 4.04. Consent of Third Parties; Governmental Approvals. Except as
------------------------------------------------
set forth in Schedule 4.04, no authorization, approval, order, license, permit,
----
franchise, or consent and no registration, declaration or filing by or with any
Governmental Authority and no consent of any third party is required in
connection with the execution and delivery by the Buyer and
33
Aquatics of this Agreement or the Buyer's Documents and the consummation by the
Buyer and Aquatics of the transactions contemplated hereby and thereby.
Section 4.05. Litigation. Except as set forth in Schedule 4.05, there is
---------- ----
no action, suit or proceeding pending or, to Aquatics' knowledge, threatened
(but with respect to Contracts for the construction and remodeling of swimming
pools only those threatened in writing) against Aquatics or any of its
Subsidiaries relating to their business, and none of them has received any
notice of any pending or threatened (but with respect to Contracts for the
construction and remodeling of swimming pools only those threatened in writing)
action or proceeding, in any court, before any arbitrator or arbitration
tribunal or before or by any other Governmental Authority. Neither Aquatics nor
any of its Subsidiaries is in default under or with respect to any judgment,
order or decree of any court, any arbitrator or arbitration tribunal or any
other Governmental Authority, against or affecting the business of such person
or any of its assets, and, except as set forth in Schedule 4.05 there is no
----
outstanding judgment, order or decree of any court, any arbitrator or
arbitration tribunal or any governmental authority, agency or other
instrumentality against or adversely affecting the business of such person or
any of the assets used in connection, in whole or primarily, with the business
of such person.
Section 4.06. Compliance with Law. Except as set forth in Schedule 4.06,
------------------- ----
Aquatics and each of its Subsidiaries is in compliance in all material respects
with all laws, regulations and orders, applicable to it. Aquatics and each of
its Subsidiaries has maintained in full force and effect all certificates,
licenses, permits, authorizations and approvals, required by any Governmental
Authority and which are necessary for the operation of the business of such
Person in substantially the same manner as currently operated by such Person.
All such licenses, permits, authorizations and approvals held by the Buyer or
Aquatics are set forth in Schedule 4.06, and are issued or held either in the
----
Buyer's name or in Aquatics' name, except as set forth on Schedule 4.06.
----
34
Section 4.07. Brokerage Commissions. Neither the Buyer nor Aquatics has
---------------------
incurred any liability for finder's, brokerage, agent's or advisory fees or
commissions in connection with this Agreement or the transactions hereby
contemplated.
Section 4.08. Authorized and Outstanding Stock. (a) The authorized capital
--------------------------------
stock of Aquatics consists of (i) 500,000 shares of preferred stock, $1.00 par
value, no shares of which were issued and outstanding as of the date hereof, and
(ii) 10,000,000 shares of Common Stock, $.01 par value, of which 1,000,000
shares were issued and outstanding as of the date hereof. All such outstanding
shares have been duly and validly issued, and are fully paid and non-assessable.
Except as set forth in Schedule 4.08(a), (i) there are no outstanding
-------
subscriptions, warrants, options, calls or commitments of any character relating
to or entitling any Person to purchase or otherwise acquire any stock of
Aquatics from Aquatics; (ii) there are no obligations or securities convertible
into or exchangeable for shares of any stock of Aquatics from Aquatics or any
commitments of any character relating to or entitling any Person to purchase or
otherwise acquire any such obligations or securities from Aquatics; (iii) there
are no rights of first refusal, preemptive or similar rights to subscribe for or
to purchase any stock of Aquatics; (iv) Aquatics has not entered into any
agreement to register its equity or debt securities under the Securities Act;
(v) there are no agreements, commitments or restrictions relating to the
ownership or voting of any shares of stock of Aquatics or any other voting trust
agreement, stockholders agreement, right of first refusal agreement or other
similar agreement covering, or relating to, any portion of Aquatics' capital
stock and (vi) Aquatics is not obligated to redeem or otherwise repurchase any
shares of stock from any Person. Schedule 4.08(a) also includes a list of
-------
all of the stockholders of Aquatics.
(b) Set forth on Schedule 4.08(b) is a true and complete list of the names
-------
and jurisdictions of incorporation of all present Subsidiaries of Aquatics.
Except as described on Schedule 4.08(b), Aquatics does not own any capital stock
-------
or equity interest or partnership interest in any Person other than the
Subsidiaries. All outstanding shares of capital stock of each Subsidiary are
(i) owned of record and beneficially by
35
Aquatics and/or by one or more other Subsidiaries, free and clear of all Liens,
and are (ii) duly authorized, validly issued, fully paid and nonassessable. Each
Subsidiary is a corporation duly incorporated, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation, is duly
qualified to do business as, and is in good standing as, a foreign corporation
in each jurisdiction in which the conduct of its business or the ownership or
leasing of its properties makes such qualification necessary, and has all
requisite power and authority to conduct its business and to own and lease its
properties.
Section 4.09. Shares to be Issued on Conversion. The shares of Common
---------------------------------
Stock to be issued pursuant to Section 2.04(a), the Warrants and the shares of
Common Stock to be issued upon the exercise of the Warranties (i) will be
validly issued, fully paid and nonassessable at the time of such issuance on the
Closing Date or exercise, as the case may be, and (ii) will be issued free of
any Liens, except for restrictions under applicable federal and state securities
laws.
Section 4.10. No Omission. No representation or warranty by the Buyer or
-----------
Aquatics made in this Agreement or any Exhibit hereto and no Schedule or
certificate furnished or to be furnished to the Seller pursuant to or in
connection with this Agreement or any of the transactions hereby contemplated
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary in order to make the statements
contained herein or therein, in the light of the circumstances in which they are
made, not misleading.
Section 4.11. Taxes. As of the date hereof and as of the Closing Date each
-----
of Aquatics and its Affiliated Groups has timely filed all material Tax Returns
it is required to have filed, and has paid all Taxes it is required to have
paid. As of the date hereof and as of the Closing Date no Tax Return of Aquatics
and its Affiliated Groups is under audit by any Tax Authority and none of
Aquatics nor any of its Affiliated Groups has received any notices of the
commencement of any such audit. As of the date hereof and as of the Closing Date
there are no material assessments of Taxes relating to Aquatics or any of its
Affiliated Groups.
36
Section 4.12. Ordinary Course; No Material Adverse Change. Except as set
-------------------------------------------
forth in Schedule 4.12, since December 31, 1995 (i) the business of each of the
----
Buyer and Aquatics has been conducted in the ordinary and regular course
thereof, and (ii) there has not been any Material Adverse Effect with respect to
Aquatics and its Subsidiaries taken as a whole.
Section 4.13. Charter Documents. True and correct copies of the
-----------------
Certificate of Incorporation, other charter documents and bylaws of Aquatics
have been delivered to the Seller by Aquatics.
Section 4.14. Contracts.
---------
(a) Schedule 4.14 contains a complete and correct list of each of the
----
following leases, agreements, contracts, purchase orders, licenses, indentures,
commitments and plans, whether written or oral, to which the Buyer, Aquatics or
any of its Subsidiaries is a party or by which the Buyer, Aquatics or any of its
Subsidiaries is bound, and pursuant to which the Buyer or Aquatics or any of its
Subsidiaries receives any benefit (collectively, the "Buyer Contracts"):
(i) Buyer Contracts for the employment by Aquatics of any
officer, employee, or other person or entity on a full-time, part-time,
consulting or other basis;
(ii) Buyer Contracts relating to the borrowing of money;
(iii) Buyer Contracts providing for the guarantee of any
obligation of any person other than Aquatics or any of its Subsidiaries;
(iv) Buyer Contracts under which the Buyer, Aquatics or any of
its Subsidiaries is the lessee of or holds or operates any property, real
or personal, owned by any other party calling for annual payments of more
than $25,000 or extending beyond two years from the date hereof;
(v) Buyer Contracts prohibiting the Buyer, Aquatics or any of its
Subsidiaries from freely engaging in any business or competing anywhere in
the world;
(vi) Buyer Contracts not made in the ordinary and regular course
of business;
37
(vii) Buyer Contracts between the Buyer, Aquatics or any of its
Subsidiaries, on the one hand, and any officer, director, employee or
stockholder of the Buyer, Aquatics or any of its Subsidiaries, or any
entity controlled, directly or indirectly by any such person, on the other
hand;
(viii) Partnership or joint venture contracts or arrangements or
any other agreements involving a sharing of revenues or profits;
(ix) Buyer Contracts relating to the reorganization or
restructuring of the business, capital stock or indebtedness of the Buyer,
Aquatics or any of its Subsidiaries; and
(x) Any other Buyer Contracts which are material to the business,
operations, properties, assets or condition, financial or otherwise, of
Aquatics and its Subsidiaries taken as a whole.
(b) A copy of each Buyer Contract listed in Schedule 4.14 has been
----
delivered to the Seller by the Buyer or by Aquatics. Buyer, Aquatics and
Aquatics' Subsidiaries have performed all material obligations required to be
performed by them, and are not in default under any Buyer Contract, which
default would entitle the other party to such Buyer Contract to terminate such
Buyer Contract or accelerate Buyer's, Aquatics' or any Subsidiaries' obligations
thereunder and no event has occurred which, with a lapse of time or the giving
of notice or both, would constitute such default by Buyer, Aquatics or any
Subsidiary or, to the knowledge of Aquatics, by any other party to any such
Buyer Contract. All of the Buyer Contracts are valid, binding and enforceable
against Buyer, Aquatics or such Subsidiary, as the case may be, and, to the best
of Aquatics' knowledge, the other party thereto in accordance with their
respective terms and in full force and effect.
Section 4.15. Affiliate Agreements. Except as set forth in Schedule 4.15,
-------------------- ----
there does not exist any lease, agreement, contract or other legally binding
commitment, whether written or oral, between Aquatics and any Affiliate of
Aquatics or any director, officer, stockholder or employee of Aquatics.
Section 4.16. Insurance. Schedule 4.16 sets forth a true and correct list
--------- ----
of all comprehensive general liability and other
38
products liability insurance policies of any nature whatsoever, including
umbrella policies and excess coverage policies, maintained by the Buyer or
Aquatics (or any predecessor) at any time during the five years prior to the
date of this Agreement, and with respect to each such policy sets forth (i) the
name of the insurer, (ii) the nature and type of coverage, (iii) the amount of
insurance coverage (including original coverage and any remaining coverage),
(iv) the time periods during which such coverage remained in effect, (v) whether
coverage under the policy is based on occurrences or claims made and (vi) the
amount of any self insurance retention or deductibles. Except for the
cancellation of a policy due to an insurer's election to discontinue the
insurance of a class of risks (which decision was applicable to all like policy
holders), neither the Buyer, Aquatics nor any predecessor of the Buyer or
Aquatics has received any notice or other communication from any such insurance
company within the five years preceding the date hereof cancelling any of said
insurance policies, and to the best knowledge of the Buyer and Aquatics, no such
cancellation is threatened.
Section 4.17. Environmental. Except as set forth on Schedule 4.17, on the
------------- ----
date hereof and as of the Closing Date:
(a) (i) The activities, operations and business carried out by Aquatics and
its Subsidiaries are and have been at all times in compliance with all
applicable Environmental Laws, except to the extent that any failure to so
comply will not have a Material Adverse Effect on Aquatics and its Subsidiaries
taken as a whole;
(ii) as to each of the properties currently or previously used for the
business of Aquatics and its Subsidiaries, no Hazardous Substances have been
Released to the Environment on, at, under or from such property in any amount
that has required or will require investigation or other remedial action
pursuant to any applicable Environmental Law or that otherwise has given or will
give rise to any claim of liability by any Governmental Authority or other third
party, except to the extent that any liability with respect to such Hazardous
Substances will not have a Material Adverse Effect on Aquatics and its
Subsidiaries taken as a whole; and
39
(iii) no Hazardous Substances have been shipped by Aquatics or its
Subsidiaries to an offsite facility that have given or will give rise to any
claim of liability for investigation or other remedial action pursuant to any
applicable Environmental Law or that otherwise have given or will give rise to
any claim of liability by any Governmental Authority or other third party,
except to the extent that any such claim of liability will not have a Material
Adverse Effect on Aquatics and its Subsidiaries taken as a whole.
(b) (i) Aquatics and its Subsidiaries are not aware of any pending
litigation or proceedings before any administrative agency in which any person
or entity alleges the violation of any Environmental Law by Aquatics or its
Subsidiaries, the Release or Threat of Release of Hazardous Substances on, at,
under or from any property currently or previously used for the business of
Aquatics or its Subsidiaries or any liability of Aquatics or its Subsidiaries
with respect to any Hazardous Substances that have been shipped by Aquatics or
its Subsidiaries to an offsite facility;
(ii) Neither Aquatics nor its Subsidiaries has received any written
notice that any Governmental Authority or other third party, or any employee or
agent thereof, has determined, threatens to determine or requires an
investigation or further information to determine that there exists any
violation of any Environmental Law, a Release or Threat of Release of Hazardous
Substances requiring investigation or other remedial action on, at, under or
from any property currently or previously used for the business of the Aquatics
or its Subsidiaries or any liability of Aquatics or its Subsidiaries with
respect to any Hazardous Substances that have been shipped by the Aquatics or
its Subsidiaries to an offsite facility;
(iii) Neither Aquatics nor its Subsidiaries has received any notice
under any citizen suit provision of any Environmental Law regarding any of its
operations.
(c) No Lien has been imposed on any of the assets of Aquatics or its
Subsidiaries by any Governmental Authority under any Environmental Laws.
40
(d) Aquatics and its Subsidiaries have all Environmental Permits necessary
for the activities and operations of the Division, except to the extent that any
such failure would not have a Material Adverse Effect on Aquatics and its
Subsidiaries taken as a whole.
Section 4.18. Employee Benefit and Other Plans.
--------------------------------
Schedule 4.18 contains a true and complete list of all Plans which Aquatics
----
or any Affiliates of Aquatics, and all Plans subject to any provision of Title
IV of ERISA which any ERISA Affiliate of Aquatics, maintains or contributes to,
or has any obligation to contribute to, or, during the last six years, has
maintained, contributed to or been obligated to contribute to, or with respect
to which Aquatics or any Affiliate of Aquatics may incur liability (directly or
indirectly, pursuant to Section 4069 of ERISA or otherwise), and neither
Aquatics nor any ERISA Affiliate of Aquatics has any liability with respect to
any such Plan. Schedule 4.18 sets forth, as of December 31, 1995, a good faith
estimate of the excess of the accumulated benefit obligation (ABO) over the
assets of the Defined Benefit Plan for Former Employees of KDI Corporation
amended and restated as of January 1, 1996 for the current and former employees
of Aquatics and its ERISA Affiliates who are participants in said plan. All
Plans identified in Schedule 4.18 which are in existence on the date hereof are
----
in compliance in all material respects, in form and in operation, with the
applicable requirements of ERISA, the Code (to the extent the Plan is intended
to comply with the Code), all other applicable laws and the Plan documents. All
contributions required to be made by Aquatics or any ERISA Affiliate of Aquatics
on or before the date hereof to each Plan listed on Schedule 4.18 which is in
existence on the date hereof under the terms of such Plan, ERISA, the Code (to
the extent the Plan is intended to comply with the Code) or other applicable
laws have been timely made. To the knowledge of Aquatics and the Buyer, with
respect to each such Plan which is an ERISA Plan, and which is in existence on
the date hereof, neither Aquatics nor any ERISA Affiliate of Aquatics has
engaged in nor has (or reasonably should have) any knowledge that any other
person has engaged in or that any fiduciary has caused or permitted the Plan to
engage in, any transaction in violation of Section 406(a) or 406(b) of ERISA for
which no exemption exists under Section 408
41
of ERISA. With respect to each such Plan which is subject to any provision of
Title IV of ERISA, there is no accumulated funding deficiency within the meaning
of Section 302 of ERISA (waived or unwaived and based on current actuarial
assumptions) and no event has occurred that would cause Aquatics or any ERISA
Affiliate of Aquatics to incur any liability under Title IV of ERISA. Neither
Aquatics nor any Affiliate of Aquatics has made any agreement, understanding or
promise, whether written or oral, to create, establish, sponsor, maintain or
contribute, directly or indirectly, to or under any additional Plan for the
benefit of current or former employees of Aquatics nor, except as set forth in
Schedule 4.18, to amend or modify any existing Plan identified in Schedule 4.18
---- ----
in any manner not reflected in the plan documents of such Plan requested by the
Seller on or before the date hereof. The transactions contemplated by this
Agreement will not result in any payment or series of payments under any Plan
established by Aquatics or any Affiliate of Aquatics to any person or a
parachute payment within the meaning of Section 280G of the Code.
ARTICLE V
PRE-CLOSING COVENANTS OF THE SELLER
The Seller agrees that, subsequent to the date hereof and prior to the
Closing Date:
Section 5.01. Conduct of Business. The Seller will (i) continue to conduct
-------------------
the business of the Division in the ordinary and regular course thereof and will
use all reasonable efforts to maintain the assets used, in whole or primarily,
in connection with the business of the Division in normal operating condition
and repair in substantially the same manner as heretofore, taking into account
their age, carry on the Division's business practices in substantially the same
manner as heretofore and keep the Division's books of account, records and files
in a manner consistent with past practice, (ii) use all reasonable efforts to
preserve the Division's business organization intact, to retain the services of
the Division Employees and sales representatives and to preserve the good will
of the Division's suppliers and customers and others having business relations
with the Division, (iii) pay and perform all of the debts, obligations and
liabilities
42
incurred, in whole or primarily, in connection with the business of the Division
and consistent with past practices as and when due and all Contracts and Leases
in accordance with the terms and provisions thereof, and (iv) use the same
efforts as heretofore used to comply with all laws, regulations and orders
applicable to the business of the Division.
Section 5.02. Contracts, etc. The Seller will not, without the prior
--------------
written consent of the Buyer, (i) enter into any Contracts or Leases, other than
in the ordinary course of business and not, in the context of the Seller's
normal prior practice, of unusual size or duration, and all such Contracts or
Leases so entered into by the Seller shall be assignable to the Buyer by the
Seller without the consent of any third party and without any payment or
penalty, and the Seller will not take any action which impairs the right of
further assignment thereof by any immediate or remote assignee of the Seller,
(ii) increase the compensation or the annual rate of compensation or change the
method of determining the compensation of any Division Employee, or grant any
general or uniform increases in the wages or rates of pay of the Division
Employees, (iii) in connection with the business or assets of the Division,
incur any liability or obligation, or purchase or otherwise acquire, mortgage,
pledge or subject to any Lien or sell or transfer any assets, tangible or
intangible, or make any loan or advance, except in the ordinary and regular
course of the business of the Division, (iv) in connection, in whole or
primarily, with the business or assets of the Division, cancel any debts or
claims, except in the ordinary and regular course of business, or waive any
rights of substantial value, (v) in connection with the business of the Division
or the Assets, settle or compromise any action, suit, claim, charge, complaint,
proceeding or investigation now pending or commenced subsequent to the date
hereof (other than those which are retained by the Seller pursuant to Section
2.03(c)), (vi) authorize, undertake, expend any moneys for, or enter into any
commitment with respect to, any capital expenditure project in connection with
the business of the Division involving the expenditure in any instance in excess
of $10,000, or in the aggregate in excess of $25,000, or (vii) declare or pay
any dividends or make any distribution or redemption with respect to its shares
in assets or properties (other than in cash).
43
Section 5.03. Employees. The Seller will use commercially reasonable
---------
efforts to assist the Buyer in retaining subsequent to the Closing Date the
services of the Division Employees listed in Schedule 5.03.
----
Section 5.04. Other Offers, etc. Prior to the Closing Date, the Seller
-----------------
shall not, directly or indirectly, through any officer, director, agent or
otherwise, (i) solicit, initiate or encourage the submission of inquiries,
proposals or offers from any person relating to any acquisition or purchase of
assets of the Seller relating to the Division or (ii) participate in any
discussions or negotiations regarding, or furnish to any other person any
financial or other information with respect to, the foregoing. The Seller shall
immediately notify the Buyer if, at any time prior to the Closing Date, any such
proposal or offer, or any inquiry or contact with any person with respect
thereto, is made.
Section 5.05. Access by the Buyer. The directors, officers, employees and
-------------------
representatives of the Buyer (collectively, the "Buyer's Representatives"), will
be permitted reasonable access, during usual business hours, and as often as may
be reasonably requested, to, and will be permitted to make copies of and
extracts from, the accounts, other records, books of account, other books,
deeds, leases, title documents, insurance policies, licenses, contracts,
commitments, sale orders, purchase orders, records and files of the Division,
and of the Seller relating to the Division, and the detailed reports submitted
to the Seller by its auditors and, to the extent that such auditors are willing
to provide them, the work papers of such auditors in connection with the
business of the Division, and such other information relating to the Division as
Seller possesses as the Buyer shall reasonably request. The Buyer's
Representatives will be permitted reasonable access, during usual business
hours, and as often as may be reasonably requested, to the premises and physical
properties used in whole or in part by the Division, and the Buyer's
Representatives will be permitted to discuss the affairs, finances and accounts
of the Division with the Seller's officers, employees, counsel, auditors and
actuaries. The Buyer's Representatives will be permitted, subject, in each case,
to the prior approval of the Seller, not to be unreasonably withheld, to discuss
the Division's business relationships with its
44
distributors, licensees, licensors, suppliers and customers, provided that such
discussions will be in the presence of a representative of the Seller, if the
Seller so requests. Any discussions with the Seller's auditors and actuaries
shall be held on reasonable notice to the Seller and in the presence of a
representative of the Seller, if the Seller so requests.
Section 5.06. Consents. The Seller shall use commercially reasonable
--------
efforts to obtain and deliver to the Buyer, by instruments in form and substance
reasonably satisfactory to counsel for the Buyer, (i) consents to the assignment
to the Buyer of those Contracts set forth on Schedule 3.08 for which such
----
consents are required, (ii) consents to the assignment to the Buyer of the
Leases requiring consent to the assignment thereof and, (iii) to the extent not
prohibited by law, consents to the assignment to the Buyer of all certificates,
licenses, permits, authorizations, and approvals set forth in Schedule 3.16,
----
requiring consent to the assignment thereof.
Section 5.07. Notification. The Seller shall not take any action that
------------
would cause or constitute a breach, or would, if it had been taken prior to the
date hereof, have caused or constituted a breach, of any of the representations
and warranties set forth in Article III hereof. The Seller will, in the event
of, or promptly after becoming aware of, the occurrence of any event which would
cause or constitute a breach of any of the representations and warranties set
forth in Article III hereof or would, if it had occurred prior to the date
hereof, have caused or constituted such a breach, give notice thereof to
Aquatics and the Buyer.
Section 5.08. Conditions. The Seller will use commercially reasonable
----------
efforts to effectuate the transactions hereby contemplated and to fulfill the
conditions to the Buyer's obligations under Article VII of this Agreement.
ARTICLE VI
PRE-CLOSING COVENANTS OF THE BUYER AND AQUATICS
Each of the Buyer and Aquatics agree that, subsequent to the date hereof
and prior to the Closing Date:
45
Section 6.01. Notification. Neither the Buyer nor Aquatics will take any
------------
action which would cause or constitute a breach, or would, if it had been taken
prior to the date hereof, have caused or constituted a breach, of any of the
representations and warranties set forth in Article IV hereof. The Buyer or
Aquatics, as the case may be, will, in the event of, or promptly after becoming
aware of, the occurrence of any event which would cause or constitute a breach
of any of the representations and warranties set forth in Article IV hereof or
would, if it had occurred prior to the date hereof, have caused or constituted
such a breach, give notice thereof to the Seller.
Section 6.02. Conditions. Each of the Buyer and Aquatics will use
----------
commercially reasonable efforts to effectuate the transactions hereby
contemplated and to fulfill the conditions to the Seller's obligations under
Article VIII of this Agreement.
Section 6.03. Access by the Seller. The directors, officers, employees and
--------------------
representatives of the Seller (collectively, the "Seller's Representatives"),
will be permitted reasonable access, during usual business hours, and as often
as may be reasonably requested, to, and will be permitted to make copies of and
extracts from, the accounts, other records, books of account, other books,
deeds, leases, title documents, insurance policies, licenses, contracts,
commitments, sale orders, purchase orders, records and files of Aquatics, and
the detailed reports submitted to Aquatics by its auditors and, to the extent
that such auditors are willing to provide them, the work papers of such auditors
in connection with the business of Aquatics, and such other information relating
to Aquatics as Aquatics possesses as the Seller shall reasonably request. The
Seller's Representatives will be permitted reasonable access, during usual
business hours, and as often as may be reasonably requested, to the premises and
physical properties used in whole or in part by Aquatics, and the Seller's
Representatives will be permitted to discuss the affairs, finances and accounts
of Aquatics with Aquatics' officers, employees, counsel, auditors and actuaries.
The Seller's Representatives will be permitted, subject, in each case, to the
prior approval of Aquatics, not to be unreasonably withheld, to discuss the
Aquatics' business relationships with its distributors, licensees, licensors,
suppliers and customers, provided that such discussions will be in the presence
of a
46
representative of Aquatics, if Aquatics so requests. Any discussions with
Aquatics' auditors and actuaries shall be held on reasonable notice to Aquatics
and in the presence of a representative of Aquatics, if Aquatics so requests.
Section 6.04. Financial Statements. If Aquatics, at any time from the date
--------------------
hereof until the Closing Time, shall have available audited and/or unaudited
financial statements of Aquatics, which may include a balance sheet as of
December 31, 1995 and a statement of income for any period ending December 31,
1995, Aquatics shall deliver copies of all such financial statements to the
Seller as soon as practicable after Aquatics' receipt thereof.
ARTICLE VII
CONDITIONS TO THE BUYER'S AND AQUATICS' OBLIGATIONS
All obligations of the Buyer and Aquatics under this Agreement are subject
to the fulfillment, at the Closing Time, of each of the following conditions,
any or all of which may be waived in whole or in part at or prior to the Closing
Time by the Buyer and Aquatics:
Section 7.01. Representations and Warranties. The representations and
------------------------------
warranties contained in Article III shall be true and correct in all material
respects at and as of the Closing Time as though such representations and
warranties were made at and as of such time.
Section 7.02. Covenants. The Seller shall have performed and complied with
---------
in all material respects all agreements and conditions on its part required by
this Agreement to be performed or complied with prior to or at the Closing Time.
Section 7.03. Certificates. The Buyer shall have received (a) a
------------
certificate of the Seller, executed by the chief executive or financial officer
of the Seller, dated the Closing Date, certifying to the fulfillment on the part
of the Seller of the conditions specified in Sections 7.01 and 7.02; and (b) a
certificate of the Secretary or Assistant Secretary of the Seller dated the
Closing Date, setting forth the resolutions of the
47
Board of Directors of the Seller adopting and approving this Agreement and all
other documents required hereby and thereby and authorizing the transactions
hereby and thereby contemplated.
Section 7.04. Opinion of Counsel. The Buyer shall have received, on behalf
------------------
of the Seller, an opinion of Counsel to the Seller dated the Closing Date, in
form and substance reasonably satisfactory to Buyer.
Section 7.05. Governmental Consents. The Buyer, Aquatics and the Seller
---------------------
shall have made all filings and petitions required to be made by them prior to
the Closing Date (and all applicable waiting periods shall have expired) with,
and the Buyer shall have received all material consents, approvals,
authorizations and permits required to be obtained prior to the Closing Time
from all Governmental Authorities in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions hereby
contemplated. To the extent not prohibited by law, the Seller shall have
received consents to the assignment of all those licenses, permits,
authorizations and approvals designated in Schedule 3.12 as requiring consent to
----
the assignment thereof.
Section 7.06. Actions or Proceedings. No court, agency or other authority
----------------------
shall have issued any order, decree or judgment to set aside, restrain, enjoin
or prevent the performance of, or which presents a substantial risk of material
damages upon the performance of, either party's obligations under the Agreement
nor shall there be pending any suit, action or proceeding requesting such relief
or remedy.
Section 7.07. Third Party Consents. There shall have been obtained the
--------------------
consent, in form and substance reasonably satisfactory to Counsel for the Buyer,
of third parties to those Contracts set forth on Schedule 3.08 requiring consent
----
to assignment, to the assignment of such Contracts to the Buyer and/or to the
consummation of the transactions contemplated hereby. Receipt of third party
consents required for the assignment of any of the Leases shall not be a
condition to the Closing of the transactions contemplated herein.
48
Section 7.08. Creditors Approval. Aquatics shall have obtained (i) the
------------------
consent of the lenders pursuant to that certain Amended and Restated Credit
Agreement among Aquatics, The Several Lenders from Time to Time Parties thereto,
and Chemical Bank, as Agent, dated as of August 31, 1995, to the transactions
contemplated by the Buyer's Documents and (ii) the consent of Wells Fargo Bank
("Wells"), the lender under that certain Credit Agreement, dated as of August
31, 1995, between Wells and Aquatics, to the transactions contemplated by the
Buyer's Documents, and the agreement of Wells to increase the credit line under
said Credit Agreement from $8 million to $11 million.
Section 7.09. Legal Matters Satisfactory. All actions, proceedings,
--------------------------
instruments and documents required by or from the Seller to carry out the
transactions contemplated by this Agreement, or incidental thereto, and all
other relevant legal matters, shall be reasonably satisfactory in all respects
to Counsel for Aquatics.
Section 7.10. No Material Adverse Effect. Between the date of this
--------------------------
Agreement and the Closing Date there shall have been no Material Adverse Effect
with respect to the Division.
ARTICLE VIII
CONDITIONS TO THE SELLER' OBLIGATIONS
All obligations of the Seller under this Agreement are subject to the
fulfillment, at the Closing Time, of each of the following conditions, any or
all of which may be waived in whole or in part at or prior to the Closing Time
by the Seller:
Section 8.01. Representations and Warranties. The representations and
------------------------------
warranties contained in Article IV hereof expressly made as of the Closing Time
shall be true and correct in all material respects at and as of the Closing
Time, and all of the other representations and warranties contained in said
Article IV shall be true at and as of the Closing Time as though such
representations and warranties were made at and as of such time.
Section 8.02. Covenants. Each of the Buyer and Aquatics shall have
---------
performed and complied in all material respects with
49
all agreements and conditions on its part required by this Agreement to be
performed or complied with prior to or at the Closing Time.
Section 8.03. Certificates. The Seller shall have received (a) a
------------
certificate of Aquatics executed by the chief executive or financial officer of
Aquatics dated the Closing Date, certifying to the fulfillment on the part of
the Buyer and Aquatics of the conditions specified in Sections 8.01 and 8.02;
and (b) a certificate of the Secretary or Assistant Secretary of each of the
Buyer and Aquatics dated the Closing Date, setting forth the resolutions of the
Board of Directors of each of the Buyer and Aquatics adopting and approving this
Agreement and all other documents required hereby and thereby and authorizing
the transactions hereby and thereby contemplated.
Section 8.04. Opinion of Counsel. The Seller shall have received an
------------------
opinion of Counsel for Aquatics, dated the Closing Date, in form and substance
reasonably satisfactory to Seller.
Section 8.05. Governmental Consents. The Buyer, Aquatics and the Seller
---------------------
shall have made all filings and petitions required to be made by them prior to
the Closing Date (and all applicable waiting periods shall have expired) with,
and the Seller shall have received all material consents, approvals,
authorizations and permits required to be obtained prior to the Closing Time
from, all Governmental Authorities, in connection with the execution, delivery
and performance of this Agreement and the consummation of the transactions
hereby contemplated.
Section 8.06. Actions or Proceedings. No court, agency or other authority
----------------------
shall have issued any order, decree or judgment lto set aside, restrain, enjoin
or prevent the performance of, or which presents a substantial risk of material
damages upon the performance of, either party's obligations under this Agreement
nor shall there be pending any suit, action or proceeding requesting such relief
or remedy.
Section 8.07. Legal Matters Satisfactory. All actions, proceedings,
--------------------------
instruments and documents required by or from the Buyer or Aquatics to carry out
this Agreement, or incidental thereto, and all other relevant legal matters,
shall be reasonably satisfactory in all respects to Counsel for the Seller.
50
Section 8.08. No Material Adverse Effect. Between the date of this
--------------------------
Agreement and the Closing Date, there shall have been no Material Adverse Effect
with respect to the Buyer or Aquatics.
Section 8.09. Financial Statements. Seller shall have received from
--------------------
Aquatics unaudited consolidated and consolidating pro forma financial statements
of Aquatics, including a balance sheet as of December 31, 1995 and a pro forma
statement of income for the year ended December 31, 1995. Aquatics shall have
delivered to Seller a certificate, executed by the chief executive or chief
financial officer of Aquatics dated the Closing Date, certifying as of December
31, 1995 as to the matters set forth in Section 4.03.
ARTICLE IX
NON-COMPETITION; CONFIDENTIALITY
Section 9.01. Non-Competition. The Seller covenants that it shall not:
---------------
(a) At any time prior to the fifth anniversary of the Closing Date,
anywhere in the world, directly or indirectly, own, manage, operate, join or
control, or participate in the ownership, management, operation or control of
any business, entity, firm or corporation (other than Buyer and its Affiliates
and their respective successors) which engages in the business of the
construction and remodeling of residential inground swimming pools, the
distribution of swimming pool equipment, the manufacture, installation and
distribution of swimming pool covers and the servicing of swimming pools and
swimming pool equipment or otherwise competes with the business of the Division
as conducted on the date hereof or as it has been conducted during the 24 months
prior to the date hereof.
(b) Without the consent of the Buyer, directly or indirectly, use, in
connection with the operation or conduct of any pool construction business
generally, or in any business similar to those in which the Division is engaged
on the date hereof,
51
the Rights in the Names or any title or name similar to or likely to be confused
with the Rights in the Names.
(c) At any time prior to the fifth anniversary of the Closing Date,
solicit, directly or indirectly (whether through shareholders or otherwise), any
director or officer or employee of the Buyer or Aquatics to discontinue that
individual's status or employment with the Buyer or Aquatics, as the case may
be.
(d) At any time prior to the fifth anniversary of the Closing Date, solicit
or cause to be solicited or authorize, directly or indirectly, for or on its own
behalf or on behalf of any third party, any business competitive with the
business of the Division as conducted on the date hereof or as it has been
conducted during the 24 months prior to the date hereof from others who are or
were at any time customers, clients, advertisers, suppliers or distributors of
the Division or the Seller.
Section 9.02. Confidentiality. The Seller covenants and agrees that from
---------------
and after the Closing Time it shall not at any time use or disclose to any third
party any information with respect to the Division or its business, other than
information which (i) is currently generally available to the public, (ii)
hereafter becomes generally available to the public other than as a result of a
disclosure by the Seller or (iii) becomes available after the Closing Date to
the Seller on a nonconfidential basis; provided, however, that the source of
-------- -------
such information is not known by the Seller to be bound by a confidentiality
agreement.
Section 9.03. Breach. In the event of a breach or threatened breach of the
------
provisions of Sections 9.01 or 9.02, in addition to any other remedies the Buyer
or Aquatics may have at law or in equity, each of the Buyer and Aquatics shall
be entitled to seek an injunction or similar remedy so as to enable it
specifically to enforce such provisions.
Section 9.04. Severability. It is the desire and intent of the parties
------------
hereto that the provisions of this Article IX be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular portion of this
Article
52
IX should be adjudicated to be invalid or unenforceable, such portion shall be
deleted and such deletion shall apply only with respect to the operation of this
Article IX in the particular jurisdiction in which such adjudication is made;
further, to the extent any provision hereof is deemed unenforceable by virtue of
its scope in terms of area or length of time, but may be enforceable with
limitations thereon, the parties agree that the same shall, nevertheless, be
enforceable to the fullest extent permissible under the laws and public policies
applied in such jurisdiction in which enforcement is sought.
Section 9.05. Termination Upon Occurrence of Termination Event.
------------------------------------------------
Notwithstanding the foregoing provisions of this Article IX, the restrictions on
and obligations of the Seller under this Article IX shall terminate upon the
occurrence of a Termination Event to the extent, but only to the extent,
necessary to permit the Seller to perform such services as are required to
satisfy warranty claims and liability claims resulting from products
manufactured, sold or leased by the Seller which claims were assumed by the
Buyer pursuant to the terms hereof. "Termination Event" shall mean the failure
of the Buyer or Aquatics to pay, perform or discharge any such warranty claims
or liability claims within a reasonable time after such claim is first asserted.
The rights of the Seller under this Section 9.05 shall not in any manner relieve
or diminish the Buyer's and Aquatics' obligations to pay, perform and discharge
such warranty claims and liability claims.
ARTICLE X
POST-CLOSING COVENANTS
Section 10.01. Further Assurances. From and after the Closing Date, the
------------------
Seller shall, at any time and from time to time, at its sole cost and expense,
make, execute and deliver, or cause to be made, executed and delivered, such
assignments, deeds, bills of sale, drafts, checks, returns, filings and other
instruments, consents and assurances and take or cause to be taken all such
action as Counsel for Aquatics may reasonably request for the effectual
consummation, confirmation and particularization of this Agreement and the
transactions hereby contemplated. From and after the Closing Date, the Buyer and
Aquatics shall, at any
53
time and from time to time, at its sole cost and expense, make, execute and
deliver, or cause to be made, executed and delivered, such assumptions and take
or cause to be taken all such action as Counsel for the Seller may reasonably
request for the effectual consummation, confirmation and particularization of
this Agreement and the transactions hereby contemplated.
Section 10.02. Accounts Receivable; Authorization; Mail. The Seller agrees
----------------------------------------
that the Buyer shall have the right and authority to collect for the account of
the Buyer all receivables and other items which shall be transferred to the
Buyer as provided herein. The Seller agrees that it will promptly transfer and
deliver to the Buyer any cash or other property that the Seller may receive in
respect of any such receivables or other items. The Seller hereby authorizes and
empowers the Buyer from and after the Closing Time (i) to receive and open mail
addressed to the Seller and (ii) to deal with the contents thereof
appropriately, provided that such mail and the contents thereof relates to the
Division. The Seller agrees to deliver to the Buyer promptly upon receipt any
mail, checks or other documents received by it relating to the Division, except
to the extent relating to the Excluded Assets or Excluded Liabilities. The Buyer
agrees to deliver promptly to the Seller any mail it receives to which it is not
entitled by reason of this Agreement or otherwise and to which the Seller is
entitled.
Section 10.03. Retention of Records; Access. After the Closing, the Seller
----------------------------
shall, upon reasonable notice to the Buyer, have reasonable access during usual
business hours to the books and records of the Division for all periods prior to
the Closing Date for all reasonable business purposes and may make copies or
extracts from such books and records for all reasonable business purposes Each
of the Seller and the Buyer shall retain all books and records in existence as
of the Closing Date, or created within two years thereafter and relating to the
Division, for at least ten after the Closing Date; provided, however, that if
either party shall, after the fifth year following the Closing Date but prior to
the expiration of such ten year period, propose to destroy or dispose of any
such books and records, it shall first so advise the other party and, if the
other party objects, in writing, to such destruction or disposition, shall
either continue to preserve such books and records for the requisite ten
54
year period or shall deliver to the other party, at the expense of the other
party, such books and records as were proposed to be destroyed or disposed of.
Section 10.04. Tax Matters. (a) From and after the Closing, the Seller and
-----------
each of the Buyer and Aquatics shall cooperate fully with each other and make
available or cause to be made available to each other for consultation,
inspection and copying (at such other party's expense) in a timely fashion such
personnel, Tax data, Tax Returns and filings, files, books, records, documents,
financial, technical and operating data, computer records and other information
as may be reasonably required (i) for the preparation by the Buyer or the Seller
of any Tax Returns, elections, consents or certificates required to be prepared
and filed by the Buyer or the Seller or (ii) in connection with any audit or
proceeding relating to Taxes for which the Buyer or the Seller is responsible.
(b) Not later than September 30, 1996, the Buyer shall provide to the
Seller copies of Internal Revenue Service Form 8594 and any required exhibits
thereto with the Buyer's proposed allocation of the Purchase Price among the
Assets. Such allocation shall be based on the fair market value of each Asset
at Closing and otherwise in a manner consistent with Section 1060 of the Code
and the regulations thereunder. Within 30 days after the receipt of such Form
8594, the Seller shall propose to the Buyer any changes to such Form 8594 or
shall indicate its concurrence therewith. The failure by the Seller to propose
any changes within such 30 days shall be deemed to be an indication of the
Seller's concurrence with such form as proposed by the Buyer. The Buyer and the
Seller shall endeavor in good faith to resolve any differences with respect to
the items on Form 8594. Notwithstanding the foregoing, if the Buyer and the
Seller are unable to resolve such differences, the Buyer and the Seller shall,
subject to the requirements of any applicable Tax law or election, file all Tax
Returns in a manner consistent with such Form 8594 except with respect to any
items that are the subject of such differences.
(c) The Seller and the Buyer agree that, subject to the Closing hereunder,
pursuant to the "Alternative Procedure" provided in Section 5 of Revenue
Procedure 84-77, 1984-2
55
C.B. 753, with respect to filing and furnishing Internal Revenue Service
Forms W-2, W-3 and 941, (i) the Seller and the Buyer shall report on a
"predecessor-successor" basis as set forth therein with respect to all Division
Employees who become employees of the Buyer; (ii) the Seller shall be relieved
from furnishing Forms W-2 to such employees; and (iii) the Buyer shall assume
the Seller's obligation to furnish such Forms to such employees for the full
1996 calendar year.
(d) The Seller and the Buyer shall each be responsible for the payment of
one-half of any and all sales, recordation, transfer or similar taxes or fees
with respect to the transfer of the Assets hereunder (including any interest or
penalties with respect thereto) and shall deliver to each other promptly copies
of all Tax Returns and other documentation filed with respect thereto.
(e) The Seller shall deliver to the Buyer on or before the Closing Date a
certificate which states, under penalty of perjury, the Seller's taxpayer
identification number and office address as well as a statement that the Seller
is not a "foreign person" within the meaning of Section 1445(f)(3) of the Code.
Section 10.05. Seller Employees. Effective on the Closing Date, the Buyer
shall offer to each Division Employee other than those set forth in Schedule
10.05 employment with the Buyer on substantially the same terms, including the
- -----
same severance benefits (with credit for prior employment with Seller for
purposes of such severance benefits), as so employed by Seller; provided,
however, that (i) nothing herein shall change at will relationships to any other
type of relationship or preclude the employer's rights thereunder, (ii) for
purposes of the Buyer's 401(k) plan, credit for prior service with Seller shall
be conditional upon continuous employment with the Buyer for at least one year
and (iii) the Buyer shall not be required to offer or provide to such Division
employees any medical, life or disability insurance other than the medical, life
and disability insurance offered by Buyer to its employees.
Section 10.06. Services Agreement. In connection with any liabilities or
------------------
obligations of the Seller for warranty claims and/or liability claims resulting
from products manufactured,
56
sold or leased by the Seller which are not assumed by the Buyer pursuant to the
terms hereof, the Buyer shall perform such services on behalf and at the
direction of the Seller, and sell such products to the Seller, as the Seller may
reasonably request from time to time. The Seller will reimburse the Buyer for
the Buyer's out-of-pocket expenses and direct labor costs with respect to the
performance of such services and the Buyer's materials and labor costs for such
products. The Buyer shall not be reimbursed for consulting or site management
services in connection with the services to be rendered pursuant to this Section
10.06.
Section 10.07. Maintenance of Insurance. From and after the Closing Date,
------------------------
Aquatics agrees to maintain in full force, at its own expense, a policy or
policies of product liability insurance with respect to any liability for injury
to persons or property or death of persons (or any other injury, damage or harm
of any nature) resulting from the use of products manufactured, sold or leased
by the Division or Aquatics and its Subsidiaries (including products
manufactured, sold or leased by the Division prior to the Closing Date). Such
insurance shall be issued and maintained in a form reasonably satisfactory to
the Seller and in amounts which shall in no event be less than $20,000,000 in
the aggregate, with a deductible or self insurance reserve of no more than
$750,000 per occurrence and $2,500,000 in the aggregate per annum. Aquatics
shall purchase all such insurance from a responsible and accredited insurer
reasonably satisfactory to the Seller and with Best rating of no less than A and
each such policy shall include the Seller and such of its Affiliates as it
designates from time to time as additional insureds, and shall also provide that
such policies may not be cancelled or their coverage materially changed without
30 days' prior written notice to all named insureds. No less frequently than
annually, and additionally upon any request of the Seller, Aquatics shall
provide the Seller with Certificates of Insurance on all policies maintained
pursuant to this Section 10.07 and evidence that the premiums therefor have been
paid. The liability coverage required by this Section 10.07 shall in no way
limit Aquatics' and the Buyer's liability for any claims in excess of such
policy limits. In the event that at any time Aquatics fails to maintain the
insurance required by this Section 10.07, the Seller may
57
obtain such insurance on its own behalf and Aquatics will promptly reimburse the
Seller for all costs and expenses relating thereto, including, without
limitation, all premiums. The failure of the Seller to obtain insurance pursuant
to the preceding sentence shall not in any way limit Aquatics' or the Buyer's
liability for the Assumed Liabilities or Aquatics' breach of this Section 10.07.
Section 10.08. Right of the Seller to Nominate Directors.
-----------------------------------------
From and after the Closing Date until the time of an IPO, the Seller shall have
the right to nominate one member of the Board of Directors of Aquatics and one
member of the executive committee, if any, of the Board of Directors of Aquatics
or any committee having equivalent powers to the powers normally maintained by
an executive committee of a board of directors (each, a "Seller Nominee").
Richard M. Rodstein shall be the initial Seller Nominee. Aquatics agrees to use
commercially reasonable efforts to cause the election of the Seller Nominee to
the Board of Directors; provided, however, that if Aquatics is unable to cause
such election, Aquatics shall (i) deliver from time to time to the Seller as
promptly as practicable all materials of any nature which are generally
distributed to the members of the Board of Directors of Aquatics or the
executive committee thereof and (ii) permit and provide the Seller Nominee the
opportunity to attend all such Board and executive committee meetings and
participate in all discussions thereat, provided that the Seller Nominee shall
not have any voting rights. If any director selected in the manner set forth in
this Section 10.08 is unable to serve or, once having commenced to serve, is
removed or withdrawn from such Board, such withdrawing director's replacement on
the Board or the subsidiary Board will be nominated by the Seller and Aquatics
will cause such person to be elected in accordance with the foregoing provisions
of this Section 10.08.
Section 10.09. Financial Statements. From and after the Closing Date until
--------------------
the time of an IPO, Aquatics shall furnish to the Seller and any transferee of
all the Shares, Debt Securities or Warrants:
58
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of Aquatics, a copy of the consolidated and consolidating
balance sheets of Aquatics as at the end of such year and the related
consolidated and consolidating statements of income and retained earnings and of
cash flows for such year, setting forth in each case in comparative form the
figures for the previous year, together with an audit report with respect to
such consolidated financial statements by Arthur Andersen & Co. or other
independent certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days after the
end of each of the first three quarterly periods of each fiscal year of
Aquatics, the unaudited consolidated and consolidating balance sheets of
Aquatics as at the end of such quarter and the related unaudited consolidated
and consolidating statements of income and retained earnings and of cash flows
of Aquatics for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the figures for
the previous year, certified by the chief financial officer of Aquatics as being
fairly stated in all material respects (subject to normal year-end audit
adjustments); all such financial statements shall be complete and correct in all
material respects and shall be prepared in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein).
Section 10.10. Disposal of Gunite Rigs. The Buyer shall use commercially
-----------------------
reasonable efforts to sell on market terms the gunite rigs and related vehicles
transferred from the Seller to the Buyer at the Closing. If, on or prior to
December 31, 1996, the Buyer has realized net proceeds from the sale of such
gunite rigs and related vehicles less than the value of such gunite rigs and
related vehicles set forth in the Closing Date Balance Sheet, the principal
amount of the Debt Securities shall be reduced by the amount by which the value
of such gunite rigs and related vehicles set forth in the Closing Date Balance
Sheet exceeds the proceeds received by the Buyer from the sale thereof, and, at
the request of the Buyer, the Seller shall return the Debt Securities
59
to the Buyer and the Buyer will reissue the Debt Securities at the reduced
principal amount. Principal reductions in the Debt Securities shall result in a
decrease in the number of shares issuable upon exercise of the Warrants on a
proportionate basis to the decrease in the principal amount of the Debt
Securities as provided in the Warrants.
Section 10.11. Leases. To the extent that the Seller assigns to the Buyer,
------
within 120 days after the Closing Date, any Lease not theretofore assigned to
the Buyer pursuant to Section 2.02(a), the Buyer shall assume any and all
obligations of the Seller thereunder.
Section 10.12. Removal of Underground Storage Tanks. Seller shall at its
------------------------------------
own cost and expense undertake removal of any Hazardous Substance underground
storage tanks referred to in the reports identified in Section 3.10(e) in
compliance with all applicable Environmental Laws, and shall complete such
removal within 60 days after the Closing Date or such longer time as is
reasonably necessary to comply with such Environmental Laws. Buyer shall provide
reasonable access to Seller for such purposes.
Section 10.13. Grant of Certain Stockholder Rights. If on the date of this
-----------------------------------
Agreement any existing stockholders of the Company have, or if at any time after
the date of this Agreement and prior to the completion of an IPO the Company
grants to any now-existing stockholders of the Company, any registration rights,
preemptive rights, rights to cause the Company to redeem or otherwise repurchase
any or all Common Stock of the Company held by such stockholder or any other
similar rights, then the Company shall promptly from time to time grant to the
Seller substantially identical rights with respect to all shares of Common Stock
or other capital stock of the Company now or hereafter acquired by the Seller
pursuant to this Agreement, the Warrants and the transactions contemplated
hereby and thereby.
60
ARTICLE XI
TERMINATION AND ABANDONMENT
Section 11.01. Termination. This Agreement may be terminated at any time
-----------
prior to the Closing Date:
(a) by mutual consent of the Buyer and the Seller;
(b) by the Buyer, if there has been a material violation or breach by
the Seller of any agreement, representation or warranty contained in this
Agreement, or if the satisfaction of any condition to the obligations of
the Buyer or Aquatics hereunder becomes impossible, and such violation,
breach or condition has not been waived by the Buyer;
(c) by the Seller, if there has been a material violation or breach by
the Buyer or Aquatics of any agreement, representation or warranty
contained in this Agreement, or if the satisfaction of any condition to the
obligations of the Seller hereunder becomes impossible, and such violation,
breach or condition has not been waived by the Seller; or
(d) by either the Buyer or the Seller if the Closing has not occurred by
March 31, 1996.
Section 11.02. No Waiver. No termination pursuant to Section 11.01 shall
---------
be deemed to constitute a release or waiver by any party of any claim against
another party hereto based on any breach by such party of its agreements,
representations and warranties contained herein.
ARTICLE XII
INDEMNIFICATION
Section 12.01. By the Seller. The Seller shall indemnify and hold harmless
-------------
the Buyer and its directors, officers, employees, agents, successors, affiliates
and assigns (the "Buyer Parties") from and against, and reimburse the Buyer
Parties on demand with respect to, any and all loss, damage (including any
decrease in the value of property or securities acquired hereunder), liability,
claims, cost and expense, including
61
reasonable attorney's, accountant's, consultant's and engineer's fees
(collectively, "Damages"), incurred by a Buyer Party by reason of or arising out
of or in connection with (i) the breach of any representation or warranty
contained in Article III, including without limitation the representations and
warranties in Section 3.10 regarding environmental matters, or in any
certificate expressly delivered to the Buyer pursuant to this Agreement; (ii)
the failure of the Seller to perform any agreement or covenant required by this
Agreement to be performed by it; (iii) the allegation by any third party of the
existence of any liability, obligation, lease, agreement, contract, other
commitment or state of facts which if it existed would constitute a breach of
any representation or warranty contained in Article III hereof or in any
certificate or other document delivered by or on behalf of the Seller to the
Buyer pursuant to the provisions of this Agreement; (iv) any failure of the
Seller to pay, perform or discharge any of the Excluded Liabilities in
accordance with the terms thereof; (v) the fact that the parties have not taken
any action to comply with the provisions of the so-called "bulk sales laws" of
any state in connection with the transactions contemplated by this Agreement;
(vi) any action of the Seller that causes liability under, or associated with,
the Warn Act to be assessed or otherwise imputed to the Buyer or Aquatics,
provided that the Buyer has complied with and performed its obligations under
Section 10.05; or (vii) any liability or obligation, direct or indirect, with
respect to any Plan of the Seller or any ERISA Affiliate of the Seller.
Section 12.02. By the Buyer. The Buyer and Aquatics, jointly and
------------
severally, agree to indemnify and hold harmless the Seller and its directors,
officers, employees, agents, successors, affiliates and assigns (the "Seller
Parties") from and against, and to reimburse the Seller with respect to, any and
all Damages incurred by a Seller Party by reason of or arising out of or in
connection with (i) the breach of any representation or warranty contained in
Article IV, or in any certificate expressly delivered by the Buyer to the Seller
under this Agreement (ii) the failure of either of the Buyer or Aquatics to
perform any agreement or covenant required by this Agreement to be performed by
it, (iii) the allegation by any third party of the existence of any liability,
obligation, lease, agreement,
62
contract, other commitment or state of facts which if it existed would
constitute a breach of any representation or warranty contained in Article IV
hereof or in any certificate or other document delivered by or on behalf of the
Buyer to the Seller pursuant to the provisions of this Agreement, (iv) the
failure of the Buyer to pay, perform or discharge any of the Assumed Liabilities
in accordance with the terms thereof.
Section 12.03. Limitations; Remediation.
------------------------
(a) No claim for indemnification by a Buyer Party pursuant to clauses (i),
(ii), (iii) and/or (vi) of Section 12.01 or a Seller Party pursuant to clause
(i), (ii) and/or (iii) of Section 12.02, shall be asserted until the aggregate
amount of all Damages incurred by the Buyer Parties under such indemnification
provisions exceed $500,000, or by the Seller Parties under such indemnification
provisions exceed $500,000, (at which point only Damages in excess of such first
$500,000 of Damages shall be paid). The provisions of the preceding sentence
shall not apply to Damages in connection with breaches of the representation and
warranties contained in Sections 3.06, 3.07, 3.10, 3.13, 4.08 and 4.09, breaches
of the covenant contained in Section 10.10 or claims for indemnification
pursuant to clauses (iv), (v) and (vii) of Section 12.01 or clause (iv) of
Section 12.02.
(b) Seller's liability with respect to remediation of Hazardous Substances
shall be limited to liability for remediation to standards required by any
Governmental Authority with jurisdiction over the Seller under applicable
Environmental Laws, taking into account current and reasonably foreseeable uses
of the property, except as required by any existing Lease or as a result of any
third party claim. Seller shall have the right to conduct and control any such
remediation. Seller shall provide to Buyer from time-to-time upon request
copies of any correspondence, reports or other documents between Seller and any
Governmental Authority, and any drilling logs and sample or other test results,
regarding any such remediation. In undertaking any such remediation, Seller
shall cause the work to be done by qualified employees, consultants and
contractors who are reasonably acceptable to Buyer. Buyer shall provide Seller
reasonable access to its property for that purpose.
63
Section 12.04. Notice of Claims. Whenever any claim shall arise for
----------------
indemnification hereunder, the party entitled to indemnification (the
"indemnified person") shall promptly notify the other party (the "indemnifying
person") of the claim, such notice to be in writing and to describe (i) the
Damages allegedly incurred, (ii) the amount thereof, if known, (iii) any
complaints, subpoena or other documents served against the indemnified person in
connection with such Damages, and (iv) the method of computation of such Damages
(but the failure so to notify an indemnifying person shall not relieve it from
any liability which it may have under this Article XII except to the extent that
it has been prejudiced in any material respect by such failure or from any
liability which it might otherwise have). An indemnified person shall not settle
or compromise any claim by a third party for which such indemnified person is
entitled to indemnification hereunder without the prior written consent (not to
be unreasonably withheld) of the indemnifying person, unless suit in respect of
such claim shall have been instituted against the indemnified person, the
indemnifying person shall not have taken control of such suit pursuant to
Section 12.05 after notification thereof and the indemnifying person shall have
received written notice of the proposed settlement and the terms thereof.
Section 12.05. Third Party Claims. In the case of any third party claim,
------------------
action or suit as to which indemnification is sought, the indemnifying person
shall have the right at any time to notify the indemnified person that it elects
to conduct and control such action or suit. If the indemnifying person does not
give the foregoing notice and/or until the indemnifying party gives such notice,
the indemnified person shall have the right to defend and contest such action or
suit in the exercise of its exclusive discretion and settle or compromise such
suit, subject to the provisions of the last sentence of Section 12.04. The
indemnifying person shall, upon request from any indemnified person, promptly
pay to such indemnified person in accordance with the other terms of this
Article XII the amount of any Damages. If the indemnifying person gives the
foregoing notice, the indemnifying person shall have the right to undertake,
conduct and control, through counsel of its own choosing and at the sole expense
of the indemnifying person, the conduct and
64
settlement of such action or suit (other than a settlement which requires or
prohibits any action on the part of, or involves any admission by, the
indemnified person, in which event the consent of such indemnified person shall
be required, but shall not be unreasonably withheld), and the indemnified person
shall cooperate with the indemnifying person in connection with any such action
or suit; provided, that (x) the indemnifying person shall permit the indemnified
person to participate in such conduct or settlement through counsel chosen by
the indemnified person, but the fees and expenses of such counsel shall be
borne, after the indemnifying person has given notice that it elects to conduct
and control such action or suit, by the indemnified person and (y) the
indemnifying person shall agree promptly to reimburse to the extent required
under this Article XII the indemnified person for the full amount of any Damages
resulting from such action or suit, except fees and expenses of counsel for the
indemnified person incurred after the assumption of the conduct and control of
such action or suit by the indemnifying person. So long as the indemnifying
person is contesting any such action or suit in good faith, the indemnified
person shall not pay or settle any such action or suit.
Section 12.06. Payments. All payments made under this Article XII shall be
--------
made in cash in U.S. dollars or by offset against the Debt Securities as
provided in Section 12.09.
Section 12.07. Remedies Exclusive. If the Closing occurs, the remedies
------------------
provided in this Article XII shall be the exclusive remedy for monetary damages
(whether at law or in equity) with respect to this Agreement and the
transactions contemplated herein.
Section 12.08. Certain Damages. Notwithstanding anything else contained in
---------------
this Article XII, no Buyer Party or Seller Party shall be entitled to
consequential Damages with respect to, and only with respect to, breaches or
violations relating to environmental matters.
Section 12.09. Offsets. All Damages payable by the Seller Parties pursuant
-------
to this Article XII, other than in connection with breaches of the
representations and warranties contained in Section 3.10, breaches of the
covenant contained in Section 10.10
65
and claims for indemnification pursuant to clause (vii) of Section 12.01, shall
first be applied to reduce the principal amount of the Debt Securities, and, at
the request of the Buyer, the Seller shall return the Debt Securities to the
Buyer and the Buyer will reissue the Debt Securities at the reduced principal
amount. Principal reductions in the Debt Securities shall result in a decrease
in the number of shares issuable upon the exercise of the Warrants on a
proportionate basis to the decrease in the principal amount of the Debt
Securities as provided in the Warrants.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Survival. All statements, certifications, indemnifications,
--------
representations and warranties made hereby by the parties to this Agreement, and
their respective covenants, agreements and obligations to be performed pursuant
to the terms hereof, shall survive the Closing Date, notwithstanding any
examination by or on behalf of any party hereto, and (except with respect to the
provisions of Sections 3.06, 3.07, 3.10, 3.13, 4.08 and 4.09 hereof, which shall
survive without limitation) the representations and warranties made hereby by
the parties shall terminate on the third anniversary of the Closing Date, except
to the extent a party gives notice to the other parties of any breach thereof on
or before such third anniversary; provided, however, that nothing herein
contained shall modify or be construed to modify in any respect whatsoever any
covenant, agreement or obligation to be performed by any party pursuant to the
provisions of this Agreement.
Section 13.02. Expenses. Other than as set forth in Section 2.04(h),
--------
10.04(d), and 13.11, each of the parties hereto shall pay its own expenses
(including attorney's fees) in connection with this Agreement and the
transactions hereby contemplated. All expenses of the Seller in connection with
this Agreement and the transactions hereby contemplated shall be paid by the
Seller, and no part of such expenses shall be charged to or for the account of
the Division.
66
Section 13.03. Notices. All notices required or permitted hereunder shall
-------
be in writing and shall be given when personally delivered, or three days after
being sent by registered or certified mail, postage prepaid, or upon
confirmation thereof if sent by facsimile. Such notices shall be addressed
respectively:
As to the Buyer and Aquatics:
General Aquatics, Inc.
10951 West Los Angeles Avenue
Moorpark, California 93021
Attn: James Gaffney, CEO
Phone No.: (805) 523-2400
Facsimile No.: (805) 529-4901
Copy to:
Rosenman & Colin LLP
575 Madison Avenue
New York, New York 10022
Attn: Edward H. Cohen, Esq.
Phone No.: (212) 940-8580
Facsimile No.: (212) 940-3815
As to the Seller:
Anthony Industries, Inc.
4900 South Eastern Avenue
Los Angeles, California 90040
Attn: Richard M. Rodstein,
President and CEO
Phone No.: (213) 724-2800
Facsimile No.: (213) 724-0470
Copy to:
Gibson, Dunn & Crutcher
2029 Century Park East,
Suite 4000
Los Angeles, California 90067
Attn: Clay A. Halvorsen, Esq.
Phone No.: (310) 552-8500
Facsimile No.: (310) 551-8741
67
or to any other address which such party may have subsequently communicated to
the other party in writing.
Section 13.04. Amendment, etc. All prior oral or written, and all
--------------
contemporaneous oral agreements, contracts, promises, representations and
statements, if any, among the parties hereto, or their representatives, as to
the subject matter hereof (including that certain letter agreement dated
November 6, 1995 between the parties, but excluding any confidentiality
agreements between the parties or their employees or representatives), are
merged into this Agreement and this Agreement shall constitute the entire
agreement among them. This Agreement constitutes the entire understanding among
the parties and no waiver or modification of the terms hereof shall be valid
unless in writing signed by the party to be charged and only to the extent
therein set forth.
Section 13.05. Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of California applicable to
contracts made and wholly performed in such state by residents thereof without
giving effect to the conflict of laws principles thereof.
Section 13.06. Assignment. This Agreement shall be binding upon and inure
----------
to the benefit of the parties hereto and their respective successors and
assigns, provided that this Agreement may not be assigned by either the Buyer,
Aquatics or the Seller unless written consent is given by the other party,
except that (i) it may be assigned, in whole or in part, by the Buyer or
Aquatics or the Seller to one or more Affiliates of the Buyer or Aquatics or the
Seller and (ii) the Buyer may assign the benefits under Article IX to a third
party in connection with the sale of the business of the Buyer. Each of the
Buyer, Aquatics and the Seller shall remain fully liable to the other party
hereto upon any such permitted assignment.
Section 13.07. Publicity. The Buyer and the Seller shall consult with one
---------
another before issuing any press release or public announcement about the
transactions contemplated by this Agreement. Except as may be required by
applicable law, no party shall issue any press release or other public
announcement
68
without the consent of the other party, which shall not be unreasonably
withheld.
Section 13.08. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute a single agreement.
Section 13.09. Captions. The captions and the table of contents appearing
--------
in this Agreement are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope and intent of this Agreement
or any of the provisions hereof.
Section 13.10. Third Parties. Other than the parties hereto, no person
-------------
shall have any rights under or to enforce any provisions of this Agreement.
Section 13.11. Hart-Scott-Rodino Filing. Each of the Seller and the Buyer
------------------------
agree to pay one-half of the costs of any filings required to be made under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
the day and year first above written.
GENERAL AQUATICS, INC.
By:
---------------------------------------
Name:
Title:
KDI SYLVAN POOLS, INC.
By:
---------------------------------------
Name:
Title:
69
ANTHONY INDUSTRIES, INC.
By:
--------------------------------------
Name:
Title:
70
GUARANTY
--------
1. The undersigned Subsidiaries of General Aquatics, Inc. ("Guarantors")
hereby, jointly and severally, unconditionally and irrevocably guarantee the
prompt payment and performance when due of all of the obligations, including
indemnification obligations, (the "Obligations") of General Aquatics, Inc.
and/or KDI Sylvan Pools, Inc. under the foregoing Asset Purchase Agreement (the
"Agreement").
2. Guarantors agree that their obligations hereunder are an unconditional
and absolute guaranty of payment and of performance of the Obligations,
irrespective of any waiver, consent or granting of any indulgence by the Seller
or any other person to Aquatics or the Buyer with respect to any provision of
the Agreement, irrespective of whether the Seller shall have instituted any
suit, action or proceeding or exhausted its remedies under the Agreement or
taken any steps to enforce any rights against Aquatics or the Buyer or against
any other person to compel any such performance or to collect all or part of any
Obligations; provided, however, that nothing in this paragraph 2 shall prohibit
the Guarantors, or either of them, from challenging the validity of any alleged
Obligation.
3. Guarantors waive diligence, presentment, demand or payment, filing of
claims with a court in the event of bankruptcy of Aquatics or the Buyer,
protest, notice of default in the payment of any sum payable by Aquatics or the
Buyer, notice of any other default, breach or nonperformance of any agreement,
covenant or obligation of Aquatics or the Buyer, and notice and all demands
whatsoever with respect to the Obligations. Guarantors expressly waive notice
from Seller of its acceptance of and reliance on this Guaranty. Guarantors
agree to pay all reasonable costs, expenses and fees, including all reasonable
attorneys' fees and expenses, which may be incurred by the Seller in enforcing
or attempting to enforce this Guaranty following any default on the part of
either Guarantor hereunder, whether the same shall be enforced by suit or
otherwise.
4. No amendment, release or modification of the provisions of this
Guaranty shall be established by conduct, custom or course of dealing, but
solely by an instrument in writing duly
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executed by the parties hereto. The Seller shall have the full right, without
any notice to or consent from either Guarantor, from time to time and at any
time, and without affecting, impairing or discharging, in whole or in part, the
liability of Guarantor hereunder: (a) to make any change, amendment or
modification whatsoever to or of any term or condition of the Agreement; (b) to
extend, in whole or in part, by renewal or otherwise, and on one or more
occasions, any term or condition of the Agreement; or (c) to settle, compromise,
release, surrender, modify or impair, and to enforce and exercise, or fail or
refuse to enforce or exercise, any claims, rights or remedies of any kind or
nature against Aquatics or the Buyer.
5. The Seller shall be under no obligation to proceed against Aquatics or
the Buyer, or against any other guarantor before proceeding against either
Guarantor.
6. Guarantors waive, to the extent permitted by law, the benefit of
Sections 2819, 2845, 2848 and 2850 of the California Civil Code. Guarantors
shall not be discharged, released or exonerated, in any way, from their absolute
and unconditional liabilities hereunder, even though any rights or defenses
which Guarantor may have against Aquatics, the Buyer, the Seller or others may
be destroyed, diminished or otherwise affected, by: (a) any declaration by the
Seller of a default in respect of any of the Obligations; (b) the exercise by
the Seller of any rights or remedies against Aquatics, the Buyer or any other
person; or (c) the failure of the Seller to exercise any rights or remedies
against Aquatics, the Buyer or any other person.
7. Until all Obligations have been performed in full, Guarantors shall not
have any right to subrogation, and Guarantors waive any right (pursuant to
Section 2848 of the California Civil Code or any other law, rule, arrangement or
relationship) to enforce any remedy which the Seller now has or may hereafter
have against Aquatics or the Buyer. Guarantors waive any right to plead or
assert any election of remedies. Guarantors shall not be discharged, released
or exonerated, in any way, from their absolute, unconditional, and independent
joint and several liabilities hereunder, by the voluntary or involuntary
participation by Aquatics or the Buyer in any settlement or composition for the
benefit of Aquatics or the
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Buyer's creditors, whether in liquidation, readjustment, receivership,
bankruptcy or otherwise.
AMERICAN PRODUCTS, INC.
By:
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Name:
Title:
PARAGON, INC.
By:
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Name:
Title:
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