EXHIBIT 10.1 TO FORM 8-K
STOCK PURCHASE AGREEMENT
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This STOCK PURCHASE AGREEMENT, dated as of August 4, 1995, is by and
among NBI INC., a Colorado corporation having an office at 1880 Industrial
Circle, Longmont, Colorado 80501 ("NBI"), ROMAINE GILMOUR ("Gilmour"), an
individual whose address is R.D. 2, P.O. Box 70, Somerset, Pennsylvania 15501,
and ROSE B. CALDERONE ("Calderone"), an individual whose address is R.D. 2, P.O.
Box 743, Belle Vernon, Pennsylvania 15012 (Gilmour and Calderone are referred
to collectively herein as "Sellers").
W I T N E S S E T H:
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WHEREAS, at the Closing (as hereinafter defined), the issued and
outstanding share of capital stock of Belle Vernon Motel Corporation, a
Pennsylvania corporation (the "Company"), the principal assets of which are the
Hotel (as hereinafter defined) and one million one hundred thousand dollars
($1,100,000) more or less, in cash, will consist of 34,515 shares of Common
Stock, without par value (the "Stock"); and
WHEREAS, at the Closing, Gilmour will own 26,598 shares of the Stock
and Calderone will own 7,917 shares of the Stock and, collectively, the Sellers
will own 100% of the Stock; and
WHEREAS, Gilmour is President and a director of the Company and
Calderone is Treasurer and a director of the Company;
WHEREAS, James O. Courtney, Jr. is Secretary and a director of the
Company; and
WHEREAS, the Sellers desire to sell all of the Stock to NBI and NBI
desires to buy all of the Stock from the Sellers;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged and affirmed, the
parties hereto agree as follows:
I. DEFINITIONS
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1.A. In addition to the terms defined elsewhere herein, when used in
this Agreement, the following terms have the meanings indicated:
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"Business Day" means a day other than a Saturday, Sunday, or other day
on which commercial banks in Pittsburgh, Pennsylvania are authorized or required
by law to close.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended and in effect from time to time.
"GAAP" means generally accepted accounting principles as in effect in
the United States from time to time.
"Hotel" means the improvements erected on the Property including the
81-unit motor hotel known as Holiday Inn of Belle Vernon, the restaurant,
lounge and swimming pool situated thereon and the parking lot and other
improvements ancillary thereto, including, without limitation, the Personal
Property.
"Hottle" means Dean M. Hottle, C.P.A.
"IRS" means the United States Internal Revenue Service.
"Knowledge" means the actual knowledge of Sellers.
"Licenses" means Pennsylvania Liquor Control Board License No. H-4878
and those additional licenses and permits identified on Exhibit B hereto.
"Lien" means any claim, lien (statutory or otherwise), mortgage,
pledge, hypothecation, security interest, assignment, encumbrance, or other
security agreement.
"Personal Property" means chattels and articles of personal property
placed upon or used in connection with or in the operation of the Hotel, or
which may hereafter be used or useful in connection with the Hotel, including
without limitation all records, recipes, furniture, silverware, linen, china,
glassware, napery and such other articles of personal property used in
connection with the Hotel.
"Property" means the leasehold interest of the Company in and to those
parcels of real property in Rostraver Township, Westmoreland County,
Pennsylvania, and more particularly described on Exhibit A attached hereto and
made a part hereof, said leasehold interest having been created by that certain
Lease Agreement dated May 16, 1969 between William F. Sullivan, Rosemary C.
Sullivan, James L. Smith and Thelma W. Smith, as Lessor, and the Company, as
Lessee, recorded on June 6, 1969 in Deed Book Volume 2015, Page 378, as amended
by Amendment to Lease dated October 14, 1970 recorded on October 16, 1970 in
Deed Book Volume 2052, 1179 and assigned by Assignment of Lease dated March 2d-
5th, 1973, executed by William F. Sullivan, Rosemary C. Sullivan, James L. Smith
and Thelma W. Smith in favor of Pittsburgh Penn Center Corporation, recorded
on March 14, 1973 in Deed Book Volume 2120, Page 566, all in the Recorder of
Deeds Office of Westmoreland County, Pennsylvania (collectively, the "Lease").
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1.B. References to this "Agreement" shall mean this Stock Purchase
Agreement, including all amendments, modifications and supplements thereto and
any exhibits or schedules to any of the foregoing, and shall refer to the
Agreement as the same may be in effect at the time such reference becomes
operative.
1.C. Any accounting term used in this Agreement shall have, unless
otherwise specifically provided herein, the meaning customarily given in
accordance with GAAP, consistently applied. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a
whole, including the schedules and exhibits hereto, as the same may from time
to time be amended, modified or supplemented, and not to any particular section,
subsection or clause contained in this Agreement.
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II. PURCHASE AND SALE OF THE STOCK
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2.A. Purchase of Securities. Subject to the terms and conditions set
forth herein, NBI agrees to purchase and the Sellersagree to sell the Stock for
an aggregate purchase price of $2,430,000 (the "Purchase Price").
2.B. Closing. (a) The closing of the purchase and sale of the Stock
(the "Closing") shall take place at 10:00 a.m. on Friday, August 4, 1995 (the
"Closing Date") at the offices of Courtney and Courtney, 142 North Court
Avenue, Somerset, Pennsylvania.
On the Closing Date, the respective Sellers will deliver to NBI
certificates evidencing the number of shares of Stock being sold by the
respective Sellers hereunder, in proper form for transfer and duly endorsed to
NBI or accompanied by valid instruments of assignment from the applicable
Seller to NBI duly executed by the respective Seller. At the Closing of the
Calderone Stock delivery, NBI shall deliver to Calderone a certified check to
the order of Rose B. Calderone in the amount of $529,520.34, representing 95%
of the $557,389.83 sales price of her 7,917 shares of Stock, and shall deliver
to Herbert J. deMarrais a certified check to the order of Herbert J. deMarrais
in the amount of $13,934.75, representing 2.5% of said $557,389.83 sales price,
as payment in full to him for all services rendered in connection with the sale
of said Stock of Calderone. At the Closing of the Calderone Stock delivery,
NBI shall deliver to James O. Courtney, Jr., a certified check to the order of
James O. Courtney, Jr., in the amount of $13,934.74, representing 2.5% of said
$557,389.83 sales price, as payment in full to him for his services rendered in
connection with the sale of said Stock of Calderone. At the Closing of the
Gilmour Stock delivery, NBI shall deliver to Gilmour a certified check to the
order of Romaine Gilmour in the amount of $1,778,979.66, representing 95% of the
$1,872,610.17 sales price of her 26,598 shares of Stock, and shall deliver to
Herbert J. deMarrais a certified check to the order of Herbert J. deMarrais in
the amount of $46,815.26, representing 2.5% of said $1,872,610.17 sales price,
as payment in full to him for all services rendered in connection with the sale
of said Stock of Gilmour. At the Closing of the Gilmour Stock delivery, NBI
shall deliver to James O. Courtney, Jr., a certified check to the order of
James O. Courtney, Jr., in the amount of $46,815.25, representing 2.5% of said
$1,872,610.17 sales price, as payment in full to him for his services rendered
in connection with the sale of said Stock of Gilmour.
(b) In addition, the parties hereto shall submit to the Pennsylvania
Liquor Control Board a Notice of Change of Officers, Directors and Stockholders
with such supporting documents as may be required, including financial
disclosures, resignations, corporate minutes, NBI's corporate documents, and
necessary authorizations to do business in Pennsylvania. Further, the parties
shall continue to process, cooperate and assist in any necessary proceedings
before or requests by the Pennsylvania Liquor Control Board until such time as
the corporate changes desired by NBI are accepted by the Pennsylvania Liquor
Control Board and NBI and/or its designees are accepted as authorized officers,
directors and shareholders of the Company. All of the documents referred to in
this Section 2.2(b) shall be prepared and processed by NBI at its sole expense.
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III. SELLERS' REPRESENTATIONS
------------------------
Each of the Sellers, severally and for herself only, hereby stipulates
and represents to NBI, each and all of which shall survive the execution and
delivery of this Agreement and the Closing hereunder:
3.A. Authorized and Outstanding Shares of Capital Stock. (a)
Gilmour hereby stipulates and represents to NBI that, to her Knowledge: After
giving effect to the Closing, the authorized capital stock of the Company will
consist of 100,000 shares of Common Stock, without par value, of which 34,515
shares are issued and outstanding and of which Gilmour owns 26,598 shares (the
"Gilmour Shares"). No subscription, warrant, option or other right to purchase
or acquire any shares of any class of capital stock of the Company or securities
convertible into such capital stock is authorized or outstanding, and there is
no commitment of Gilmour to issue any such shares, warrants, options or other
such rights or securities.
(b) Calderone hereby stipulates, represents and warrants to NBI that
after giving effect to the Closing, the authorized capital stock of the Company
will consist of 100,000 shares of Common Stock, without par value, of which
34,515 shares are issued and outstanding and of which Calderone owns legally
and beneficially 7,917 shares (the "Calderone shares"). No subscription,
warrant, option or other right to purchase or acquire any shares of any class
of capital stock of the Company or securities convertible into such capital
stock is authorized or outstanding, and there is no commitment of Calderone to
issue any such shares, warrants, options or other such rights or securities.
This representation shall survive the closing.
3.B. Authorization and Issuance of the Stock. (a) Gilmour hereby
stipulates and represents to NBI that, to her Knowledge: The issuance of the
Stock has been duly authorized. Upon delivery to NBI of certificates therefor
against payment in accordance with the terms hereof, the Stock will have been
validly issued and fully paid and non-assessable, free and clear of all
pledges, liens, claims, encumbrances and pre-emptive rights and contractual
obligations.
(b) Calderone hereby stipulates and represents to NBI that the
issuance of the Stock has been duly authorized. Upon delivery to NBI of
certificates therefor against payment in accordance with the terms hereof, the
Stock will have been validly issued and fully paid and non-assessable, free and
clear of all pledges, liens, claims, encumbrances and pre-emptive rights and
contractual obligations.
3.C. Authority. To the Knowledge of each of the Sellers: The
Company has all the requisite power and authority to own and operate its
properties and to carry on its business as now being conducted. The Sellers
have all the requisite power and authority to enter into this Agreement and
perform their obligations hereunder. Upon its execution by NBI and the
Sellers, this Agreement shall be a valid, legally binding and enforceable
obligation of the Sellers.
3.D. No Violations. To the Knowledge of each of the Sellers: (i)
Except for the
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condition and operation of the sewage transportation and treatment system at the
Holiday Inn of Belle Vernon, which system has been examined by NBI, neither the
Company nor any Seller has received any notice of violations of any laws,
ordinances, orders, regulations or requirements of any applicable governmental
authority affecting any portion of the Hotel and (ii) the execution, delivery
and performance of this Agreement will not breach or violate any agreement,
indenture or instrument to which the Company is a party or to which the Stock,
the assets of the Company, the Hotel or the Property is subject.
3.E. Litigation. Except for the condition and operation of the
sewage transportation and treatment system at the Holiday Inn of Belle Vernon,
which system has been examined by NBI, and except as set forth on Schedule 3.5
hereto, there is no pending, or to the Knowledge of Sellers, threatened,
litigation, condemnation or other proceeding affecting the ownership, operation,
maintenance or use of the Property and the Hotel.
3.F. Financial Statements. To the Knowledge of each of the Sellers:
The financial statements heretofore delivered to NBI are true, complete and
accurate, present fairly the results of operations of the Hotel and the Company
for the periods covered thereby, and were prepared in accordance with GAAP,
consistently applied.
3.G. Contracts. To the Knowledge of each of the Sellers: The list
of Contracts, Licenses, and Leases attached hereto as Exhibit B affecting the
Property as of the date of this Agreement is complete and correct; the Company
is not a party to any other material contracts including, without limitation,
any contract with Umesh Patel; and with respect to such Contracts, Licenses and
Leases, except as set forth on Exhibit B, no such Contracts, Licenses, and
Leases have been supplemented or amended, all such Contracts, Licenses and
Leases remain in full force and effect, there has been no default by the Company
or any other party thereto in the performance of the terms, covenants and
conditions thereof to be performed by such party thereunder and all sums due by
the Company thereunder have been paid in full.
3.H. Licenses. To the Knowledge of each of the Sellers: Except as
set forth on Schedule 3.8 hereto, no citations or notices of default have been
issued in respect of the Licenses during the period in which the Licenses have
been held by the Company.
3.I. Liens. To the Knowledge of each of the Sellers: The Hotel and
the Property are free and clear of all Liens occasioned by Sellers and are free
and clear of all material Liens except for (i) the Lease and (ii) Liens for
current real property taxes not yet due and payable.
3.J. Franchise Agreement. To the Knowledge of each of the Sellers:
The Company is in full compliance with the Franchise Agreement (as such term is
defined on Exhibit B hereto), except for such matters as may be shown on the
Product Improvement Plan prepared by Holiday Inns of America, a copy of which
has been delivered to NBI.
3.K. Actions. To the Knowledge of each of the Sellers: Except for
any action pertaining to the condition and operation of the sewage
transportation and treatment system at
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the Holiday Inn of Belle Vernon, which system has been examined by NBI, there
are no civil, criminal or administrative actions, suits (including suits brought
by or on behalf of a citizen or citizens group), demands, claims, hearings, or
proceedings pending, or to the Knowledge of Sellers, threatened, against the
Company or in respect of the Hotel or the Property, nor has the Company or
either Seller received any notice of violation, demand or other notice from any
governmental authority or agency, citizen or citizens group relating to the use,
except for asbestos in the roof, generation, storage, treatment, disposal,
release or threatened release of Hazardous Substances on or about the Property.
NBI is aware that the roof contains asbestos and has made its own examination
pertaining thereto.
3.L. Collective Bargaining Agreements. To the Knowledge of each of
the Sellers: There are no labor union contracts or collective bargaining
agreements in effect with regard to any employees of the Company or any other
employees of the Property and Hotel, except for the Labor Contract appended
hereto as Exhibit C.
3.M. Sewage. The Property is not served by a community sewage
facility (as that term is defined in the Pennsylvania Sewage Facilities Act) and
the Property's sewage facility may not be adequate to meet the needs of the
Property and may not be in compliance with all governmental regulations. Said
sewage facility has been examined by NBI.
3.N. Zoning. To the Knowledge of each of the Sellers: The Property
is zoned under the applicable zoning ordinances of the county or other political
subdivision in which any portion of the Property is situated for the purpose for
which the Property is being used on the date of this Agreement including, but
not limited to, the operation of the Hotel.
3.O. "As Is". With the exception of the sewage line underneath the
Holiday Inn of Belle Vernon and pump station, NBI has examined the Hotel and
Personal Property and is buying them "as is", including, but not limited to, any
mechanical, electrical and structural defects affecting them and any hazardous
substance or other substances thereon.
3.P. Legal Requirements. To the Knowledge of each of the Sellers:
The Company has all requisite permits necessary to own, operate, maintain and
use the Property and Hotel including, without limitation, (i) all permits
required to operate the Hotel restaurant and (ii) an amusement permit for live
entertainment in the Hotel, have been issued and are in full force and effect.
The Company has paid in full any and all prior fines imposed upon the Company
including, without limitation, any and all fines imposed by the Pennsylvania
Department of Environmental Resources. The Company has obtained and maintained
in force all permits required by law to undertake any work carried out on or in
respect of the Hotel or the Property throughout the duration of any such work.
3.Q. Intentionally omitted.
3.R. Pension and Benefit Plans; ERISA; Labor Relations. To the
Knowledge of each of the Sellers: (a) Exhibit D includes copies of (i) all
"employee benefit plans," as defined
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in Section 3(3) of ERISA, maintained by the Company or to which the Company
contributed or is obligated to contribute thereunder for the benefit of the
current or former employees of the Company ("Employee Benefit Plans") and (ii)
all "employee pension plans," as defined in Section 3(2) of ERISA maintained by
the Company or any person, firm or corporation which is or was under common
control with the Company or treated as a single employer with the Company under
Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as
amended (the "Code") ("ERISA Affiliate") or to which the Company, or any ERISA
Affiliate contributed or is obligated to contribute thereunder ("Pension
Plans").
(b) NBI will not have (i) any obligation to make any contribution to
any "multiemployer plan" as defined in Section 4001(a)(3) of ERISA
("Multiemployer Plan") or (ii) any withdrawal liability from any such
Multiemployer Plan under Section 4201 of ERISA which it would not have had if
it had not consummated the transaction at the Closing Date in accordance with
the terms of this Agreement, except as provided in Section 3.18(c) or (d).
(c) Other than the Multiemployer Plan listed on Exhibit D, none of the
Pension Plans are or were subject to the minimum funding requirements of
Section 302 of ERISA, Section 412 of the code, or Title IV of ERISA.
(d) True and complete copies of the following documents with respect
to each of the Employee Benefit Plans and Pension Plans have been made
available to or delivered to NBI by the Sellers: (i) any plans and related
trust documents, and amendments thereof, (ii) the most recent Forms 5500, (iii)
the last IRS determination letter, (iv) summary plan descriptions, (v) written
communications to employees relating to the Employee Benefits Plans, and (vi)
written descriptions of all non-written agreements relating to the Employee
Benefits Plans.
(e) The Employee Benefit Plans have been maintained, in all material
respects, in accordance with their terms and with all provisions of ERISA
(including rules and regulations thereunder and other applicable law), and
neither the Company, any "party in interest" nor any "disqualified person" with
respect to the Employee Benefit Plans has engaged in a "prohibited
transaction" within the meaning of Section 4975 of the Code or Section 406 of
ERISA.
(f) The Company maintains no Employee Benefit Plans which provide for
post-retirement benefits (other than pension) or that must provide health care
continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended.
(g) Neither the Company nor any ERISA Affiliate has contributed or
been obligated to contribute to a Multiemployer Plan, except as set forth on
Exhibit D.
(h) Neither the Seller nor any ERISA Affiliate has (i) withdrawn in a
complete or partial withdrawal from any Multiemployer Plan, (ii) incurred any
liability due to the termination or reorganization of a Multiemployer Plan, or
(iii) received notification that any Multiemployer Plan is currently in
reorganization or is or has been terminated or will immediately be in
reorganization or terminated.
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(i) The Company has no contract, plan, or commitment, whether legally
binding or not, to create any additional Employee Benefit Plans or to modify any
existing Employee Benefit Plan.
(j) The Company is not a party to any employment contract and there
is no employment contract, non-competition, employment retention, extension,
continuation, commitment, or other similar contract affecting any employee,
officer, or director of the Company or any consulting agreement pursuant to
which the Company has any liability.
(k) No labor organization or group of employees of the Company has
made a pending demand for recognition or certification, and there are no
representation or certification proceedings or petitions seeking a
representation proceeding presently pending or threatened in writing to be
brought or filed with the National Labor Relations Board or any other labor
relations tribunal or authority. There are no organizing activities involving
the Company pending with any labor organizations or group of employees of the
Company. There are no strikes, work stoppages, slowdowns, lockouts, material
arbitrations, material grievances, or other material labor disputes pending or
threatened in writing against or involving the Company.
(l) There has been no "mass layoff" or "plant closing" as defined by
the Worker Adjustment and Retraining Notification Act ("WARN") with respect to
the Company within the six months prior to the date hereof and the Company has
complied with applicable provisions of the Immigration Reform and Control Act of
1986.
3.S. Comprehension. Both the Sellers have either (i) read this
Agreement in its entirety or else (ii) it has been read to and understood by
such Seller.
3.T. Prior Agreements. Any and all prior agreements concerning the
sale of the Stock and/or the sale of all or substantially all of the Company's
assets have been terminated.
3.U. Taxes. To the Knowledge of each of the Sellers: No transfer,
excise or similar taxes (excluding pass-through income taxes for the period
prior to the Closing Date) will be or become due or payable in connection with
the sale, delivery or transfer by the Sellers to NBI of the Stock. All federal,
state and local tax returns, reports and statements required to be filed by the
Company have been filed with the appropriate governmental agencies, and all
taxes and other impositions shown thereon to be due and payable have been paid
prior to the date on which any fine, penalty, interest or late charge may be
accrued thereto or for nonpayment thereon, or any such fine, penalty, interest
or late charge has been paid. All such returns, reports and statements are
true, complete and correct, and there are no material deficiencies in respect
thereof.
IV. COVENANTS
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Each of the Sellers, jointly and severally, covenants and agrees
(except as
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otherwise provided herein, or unless NBI has given its prior written consent) as
follows. Each such covenant and agreement shall survive the execution and
delivery of this Agreement and the Closing hereunder.
4.A. Tax Compliance. Each of the Sellers shall pay her proportionate
share of all pass-through income taxes for the period prior to the Closing Date
in connection with the sale, delivery or transfer by the Sellers to NBI of the
Stock and shall save NBI and any other holder of the Stock harmless without
limitation as to time against any and all liabilities with respect to such
taxes. NBI agrees to use reasonable commercial efforts to maintain and
preserve existing financial records of the Company that are transferred to NBI
for a period of five (5) years after the Closing Date.
4.B. Broker. Each of Sellers, jointly and severally, stipulates and
represents to NBI that neither of them has dealt with any real estate agent,
salesperson, finder or broker in connection with this transaction other than
Herbert J. deMarrais and James O. Courtney, Jr. (collectively, the "Broker").
Each Seller agrees and covenants to pay her pro rata share of a five percent
(5%) commission, in the total amount of $121,500, to said Broker (which amount
shall be evenly divided between Herbert J. deMarrais and James O. Courtney,
Jr.) pursuant to a separate agreement between Sellers and said Broker. NBI
represents to Sellers that it has not dealt with any real estate agent,
salesperson, finder or broker in connection with this transaction. Each of the
Sellers and Purchaser, severally and for itself only, agrees to indemnify and
hold the other harmless from and against all loss, damage and liability
incurred by reason of a breach of the representations and warranties contained
in this Section 4.2.
4.C. Non-Competition. The Sellers covenant and agree that they
shall not own or participate in the operation of any hotel or motel business
within a ten-mile radius of the Property for a period of two (2) years after
the Closing Date without prior written consent of NBI, its successors or
assigns.
4.D. Tax Indemnity. From and after the Closing Date, the Sellers
agree to indemnify NBI against all taxes imposed on the Sellers with respect to
any taxable period that ends on or before the Closing Date. Any indemnity
payment made hereunder by the Sellers to NBI shall be treated as an adjustment
to the Purchase Price for tax purposes, but if the recipient of such payment
is required to include such amount in its gross income for federal, state or
local income tax purposes, then there shall be paid to such recipient an
additional amount so that after the payments are made to NBI it has received,
after taxes, an amount equal to the amount indemnified.
4.E. Lost Cerificates. Calderone stipulates, represents and warrants
that stock certificate Numbers 14, 25, 35 and 43 have been misplaced or lost.
Calderone covenants and agrees to deliver such certificates to NBI in the event
of their discovery and further covenants and agrees to use her best efforts to
effect the transfer of the ownership of the Calderone Shares to NBI as
contemplated hereunder, including, without limitation, the attachment of a
codicil setting forth the terms of this Agreement to any will executed by
Calderone and the inclusion
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of a copy of this Agreement among her estate-planning documents. The terms and
conditions of this Section 4.5 shall survive the Closing hereunder.
V. CONDITIONS PRECEDENT
--------------------
5.A. The obligation of NBI to purchase the Stock pursuant to Section
2.1 hereof is subject to the following conditions:
(a) NBI shall have received certificates registered in NBI's name
representing Gilmour Shares;
(b) All directors and officers of the Company shall have tendered
their resignation to NBI;
(c) All Company bank accounts, deposits and similar assets shall have
been transferred into the name of NBI or such other entity as NBI shall have
designated;
(d) Sellers' representations shall be true and correct to the
Knowledge of Sellers on such date and Sellers shall have fully performed their
obligations under this Agreement; and
(e) The Closing shall occur on or before August 4, 1995.
VI. SECURITIES LAW MATTERS
----------------------
Legends. Each certificate evidencing shares of Stock shall bear a
legend substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED BY THE HOLDER FOR ITS OWN ACCOUNT, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO THE DISTRIBUTION OF SUCH SECURITIES. THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
("THE ACT") AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION THEREFROM."
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VII. INDEMNIFICATION
---------------
Calderone, severally and for herself only, agrees to indemnify and
hold harmless NBI from and against any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, attorneys' fees,
expenses and disbursements of any kind which may be imposed upon, incurred by or
asserted against NBI in any manner relating to or arising out of any untrue
representation, breach of warranty or failure to perform any covenants by
Calderone contained herein or in any certificate or document delivered pursuant
hereto relating to her ownership of Stock. The terms and conditions of this
Section shall survive the Closing or the termination of this Agreement.
VIII. SELLERS' PROPORTIONATE JOINT LIABILITY
--------------------------------------
In the event of any joint liability of Gilmour and Calderone under
the terms of this Agreement, any monetary liability of Gilmour and of Calderone
shall be limited to their respective percentage of ownership of shares of Stock
in the Company.
IX. MISCELLANEOUS
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9.A. Notices. Whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall or
may be given to or served upon any of the parties by another, or whenever any
of the parties desires to give or serve upon another any such communication with
respect to this Agreement, each such notice, demand, request, consent,
approval, declaration or other communication shall be in writing and either
shall be delivered in person with receipt acknowledged or by registered or
certified mail, return receipt requested, postage prepaid, or by telecopy and
confirmed by telecopy answerback addressed as follows:
If to NBI at:
1880 Industrial Circle
Longmont, Colorado 80501
Attn: Mr. Jay H. Lustig
Telecopy Number: (303) 684-2804
with a copy to:
Weil, Gotshal & Manges
701 Brickell Avenue, Suite 2100
Miami, Florida 33131
Attn: Morris D. Weiss, Esq.
Telecopy Number: (305) 374-7159
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If to the Sellers at:
Mrs. Romaine Gilmour
R.D. 2
P.O. Box 70
Somerset, Pennsylvania 15501
Mrs. Rose B. Calderone
R.D. 2
P.O. Box 743
Belle Vernon, Pennsylvania 15012
with a copy to:
c/o Courtney and Courtney
142 North Court Avenue
Somerset, Pennsylvania 15501
Attn: James O. Courtney, Jr., Esq.
Telecopy Number: (814) 445-6211
(Attorney for Romaine Gilmour)
Jack Bergstein, Esq.
Schoonamaker Ave.
Monessen, Pennsylvania 15062
(Attorney for Rose B. Calderone)
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answerback, or
three (3) Business Days after the same shall have been deposited with the
United States mail.
9.B. Costs. Each party to this Agreement shall bear its own costs.
9.C. Binding Effect; Benefits. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties to
this Agreement and their respective successors and permitted assigns. Nothing
in this Agreement, express or implied, is intended or shall be construed to
give any person other than the parties to this Agreement or their respective
successors or assigns any legal or equitable right, remedy or claim under or in
respect of any agreement or any provision contained herein.
9.D. Waiver. Either the Sellers (collectively) or NBI may by written
notice to the other (a) extend the time for the performance of any of the
obligations or other actions of
19
the other under this Agreement; (b) waive compliance with any of the conditions
or covenants of the other contained in this Agreement; and (c) waive or modify
performance of any of the obligations of the other under this Agreement.
9.E. Amendment. This Agreement may be amended, modified or
supplemented only by a written instrument executed by NBI and the Sellers.
9.F. Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by either NBI or the Sellers without the prior written consent of the
other parties.
9.G. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Pennsylvania, without
regard to the principles thereof regarding conflict of laws.
9.H. Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
9.I. Severability. In the event that any one or more of the
provisions contained in this Agreement shall be determined to be invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision or provisions in every other respect
and the remaining provisions of this Agreement shall not be in any way impaired.
9.J. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
9.K. Representation. It is recognized by the parties hereto that
James O. Courtney, Jr., Esq., is only acting as attorney for and representing
Romaine Gilmour and that he is not acting as attorney for or representing Rose
B. Calderone.
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IN WITNESS WHEREOF, NBI, Gilmour and Calderone have executed this
Agreement as of the day and year first above written.
NBI:
NBI INC.
Attest:
By: \s\ Mert Cogan By: \s\ Jay H. Lustig
---------------- -----------------------------
Mert Cogan Jay H. Lustig
Secretary President
[SEAL]
SELLERS:
\s\ Romaine Gilmour
----------------------
ROMAINE GILMOUR
\s\ Rose B. Calderone
-----------------------
ROSE B. CALDERONE
21
SCHEDULE 3.5
Litigation
----------
NONE.
SCHEDULE 3.8
Citations re Licenses
---------------------
NONE.
EXHIBIT A
Legal Description of Property
-----------------------------
See attached.
22
EXHIBIT B
Contracts, Licenses and Leases
------------------------------
1. Commercial Service Contract between GE Service and Belle Vernon Motel
Corp., with an effective date of May 6, 1993, and an expiration date of May
6, 1998.
2. Agreement dated September 18, 1986 between Broadcast Music, Inc. and Belle
Vernon Motel Corp. d/b/a Holiday Inn.
3. Agreements identified on the schedule attached hereto.
4. AT&T Hospitality Commission Agreement dated September 16, 1990, as amended
on July 15, 1993.
5. License to operate a public eating and drinking place issued by the
Commonwealth of Pennsylvania Department of Environmental Resources in
favor of Holiday Inn Belle Vernon, with an expiration date of July 31,
1996.
6. License No. 65249550 issued by the Commonwealth of Pennsylvania Department
of Revenue authorizing Belle Vernon Motel Corp. to collect local and/or
state sales, use and hotel occupancy taxes, with an expiration date of
March 1999.
7. Receipt dated July 12, 1994 issued by the Department of Treasury, Bureau
of Alcohol, Tobacco and Firearms for payment of Special Occupational Tax by
Belle Vernon Motel Corp.
8. Liquor License No. H-4878, AP-4878 and SS-4878 issued by the Commonwealth
of Pennsylvania, Pennsylvania Liquor Control Board on May 1, 1995, in
favor of Belle Vernon Motel Corp., with an expiration date of April 30,
1996.
9. License Agreement dated January 24, 1986 between Holiday Inns, Inc., a
Tennessee corporation, as Licensor, and Belle Vernon Motel Corporation, a
Pennsylvania corporation, as Licensee (the "Franchise Agreement").
10. Commonwealth of Pennsylvania, Department of Environmental Resources
National Pollutant Discharge Elimination System Permit No. PA0097781
issued to Belle Vernon Motel Corporation.
11. Lease Agreement dated May 16, 1969 between William F. Sullivan, Rosemary
C. Sullivan, James L. Smith and Thelma W. Smith, as Lessor, and the
Company, as Lessee, recorded on July 6, 1969 in Deed Book Volume 2015, Page
378, as amended by
23
Amendment to Lease dated October 14, 1970 recorded on October 16, 1970 in
Deed Book Volume 2052, 1179 and assigned by Assignment of Lease dated March
2, 1973, executed by William F. Sullivan, Rosemary C. Sullivan, James L.
Smith and Thelma W. Smith in favor of Pittsburgh Penn Center Corporation,
recorded on March 14, 1973 in Deed Book Volume 2120, Page 566, all in the
Recorder of Deeds Office of Westmoreland County, Pennsylvania.
12. Additional licenses identified on the attachment hereto.
EXHIBIT C
Labor Contract
--------------
See attached.
EXHIBIT D
Employee Benefit Plans and Pension Plans
----------------------------------------
See attached.
24