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EXHIBIT 10.4
PARTNERSHIP INTERESTS PURCHASE AGREEMENT
DATED AS OF JUNE 30, 2000
BY AND BETWEEN
MIRACLE CANDLE COMPANY,
AND
SPRING VALLEY SCENTS, INC.
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TABLE OF CONTENTS
ARTICLE I
Sale and Purchase of Partnership Interests
1.1 Sale and Purchase of Partnership Interests..............................................................1
1.2 Unadjusted Purchase Price...............................................................................1
1.3 Adjustment of the Unadjusted Purchase Price.............................................................1
ARTICLE II
Representations and Warranties of Seller
2.1 Organization and Power..................................................................................2
2.2 Authorization...........................................................................................2
2.3 No Conflicts............................................................................................3
2.4 Consents and Approvals..................................................................................3
2.5 Title to Partnership Interests..........................................................................3
2.6 Broker's Fees...........................................................................................3
2.7 Litigation; Orders......................................................................................3
2.8 Legal Compliance........................................................................................4
2.9 Permits.................................................................................................4
2.10 Contracts...............................................................................................4
2.11 Intellectual Property...................................................................................4
2.12 Related-Party Transactions..............................................................................5
2.13 Financial Statements....................................................................................5
2.14 Absence of Undisclosed Liabilities......................................................................5
2.15 Absence of Certain Changes..............................................................................5
2.16 [intentionally omitted].................................................................................5
2.17 Insurance...............................................................................................5
2.18 Real Property...........................................................................................6
2.19 Inventory...............................................................................................6
2.20 Tangible Personal Property..............................................................................6
2.21 Title to and Condition of Asset and Properties..........................................................6
2.22 Bank Accounts...........................................................................................6
2.23 Accounts Payable........................................................................................6
2.24 Affiliate Liabilities...................................................................................6
2.25 Environmental Matters...................................................................................7
2.26 Accounts Receivable.....................................................................................7
2.27 Fixed Assets............................................................................................7
2.28 Disclosure..............................................................................................7
ARTICLE III
Representations and Warranties of Purchaser
3.1 Organization............................................................................................7
3.2 Authorization...........................................................................................7
3.3 No Conflicts............................................................................................8
3.4 Consents and Approvals..................................................................................8
3.5 Broker's Fees...........................................................................................8
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ARTICLE IV
Covenants
4.1 Further Assurances......................................................................................8
4.2 Public Announcements....................................................................................8
4.3 [intentionally omitted].................................................................................8
4.4 Confidentiality.........................................................................................8
4.5 Tax Matters.............................................................................................9
ARTICLE V
Documents Delivered Upon Execution and Delivery Hereof
5.1 Documents Delivered by Seller..........................................................................10
5.2 Documents Delivered by Purchaser.......................................................................11
ARTICLE VI
Miscellaneous
6.1 Amendments.............................................................................................12
6.2 Assignments............................................................................................12
6.3 Binding Effect.........................................................................................12
6.4 Construction...........................................................................................12
6.5 Counterparts...........................................................................................12
6.6 Entire Agreement.......................................................................................12
6.7 Expenses...............................................................................................13
6.8 Governing Law..........................................................................................13
6.9 Headings...............................................................................................13
6.10 Jurisdiction...........................................................................................13
6.11 Notices................................................................................................13
6.12 Severability...........................................................................................14
6.13 Specific Performance...................................................................................14
6.14 Third-Party Beneficiaries..............................................................................14
6.15 Waiver.................................................................................................14
6.16 Survival of Representation, Warranties, and Covenants..................................................15
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EXHIBITS
Exhibit A (Escrow Agreement)
Exhibit B (Wire Transfer Instructions)
Exhibit C (Adjustment Schedule)
Exhibit D (Assignment Agreement)
Exhibit E (License Agreement)
Exhibit F (Certificate of Non-Foreign Status)
SCHEDULES
Schedule 2.7 (Litigation, Orders)
Schedule 2.9 (Permits)
Schedule 2.10 (Contracts)
Schedule 2.11 (Recorded Intellectual Property)
Schedule 2.13 (Financial Statements)
Schedule 2.15 (Certain Changes)
Schedule 2.18 (Real Property)
Schedule 2.22 (Bank Accounts)
Schedule 2.23 (Accounts Payable)
Schedule 2.24 (Affiliate Liabilities)
Schedule 2.25 (Environmental Matters)
Schedule 2.26 (Accounts Receivable)
Schedule 2.27 (Fixed Assets)
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DEFINED TERMS
"1999 Financial Statements"...................................................................Section 2.13
"Accountants"...............................................................................Section 1.3(c)
"Adjustment"................................................................................Section 1.3(a)
"Adjustment Date"...........................................................................Section 1.3(a)
"Adjustment Statement"......................................................................Section 1.3(b)
"affiliate"....................................................................................Section 6.4
"Agreement".......................................................................................preamble
"Assignment Agreement"......................................................................Section 5.1(a)
"business day".................................................................................Section 6.4
"Certificate of Non-Foreign Status".........................................................Section 5.1(h)
"Code"......................................................................................Section 4.5(e)
"control"......................................................................................Section 6.4
"Contracts"...................................................................................Section 2.10
"day"..........................................................................................Section 6.4
"dollar" or "$"................................................................................Section 6.4
"Environmental Laws"..........................................................................Section 2.25
"Environmental Permits".......................................................................Section 2.25
"Escrow Agent".................................................................................Section 1.2
"Escrow Agreement".............................................................................Section 1.2
"Escrow Deposit"...............................................................................Section 1.2
"Financial Statements"........................................................................Section 2.13
"GAAP"......................................................................................Section 1.3(b)
"Governmental Entity"..........................................................................Section 2.3
"including" or "include".......................................................................Section 6.4
"Intellectual Property"....................................................................Section 2.11(b)
"Interim Financial Statements"................................................................Section 2.13
"Interim Financial Statements Date"...........................................................Section 2.13
"Inventory"...................................................................................Section 2.21
"Law"..........................................................................................Section 2.3
"License Agreement".........................................................................Section 5.1(d)
"Liens"........................................................................................Section 1.1
"Material Adverse Effect".....................................................................Section 2.15
"or"...........................................................................................Section 6.4
"Order"........................................................................................Section 2.3
"Partnership".....................................................................................preamble
"Partnership Interests"...........................................................................preamble
"Permits"......................................................................................Section 2.9
"person".......................................................................................Section 6.4
"Post-Closing Period"..........................................................................Section 4.5
"Pre-Closing Period"...........................................................................Section 4.5
"Purchaser Documents"..........................................................................Section 3.2
"Purchase Price"...............................................................................Section 1.2
"Purchaser".......................................................................................preamble
"Real Property"...............................................................................Section 2.18
"Related Documents"............................................................................Section 3.2
"Related Persons".............................................................................Section 2.12
"Seller"..........................................................................................preamble
"Seller Documents".............................................................................Section 2.2
"Straddle Period"..............................................................................Section 4.5
"Tangible Personal Property"..................................................................Section 2.20
"Taxes".....................................................................................Section 4.5(f)
"Transfer Taxes"...............................................................................Section 4.5
"Unadjusted Purchase Price"....................................................................Section 1.2
"U.S." or "United States"......................................................................Section 6.4
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PARTNERSHIP INTERESTS PURCHASE AGREEMENT
THIS PARTNERSHIP INTERESTS PURCHASE AGREEMENT (this "Agreement") is
made as of July 3, 2000, by and between Miracle Candle Company, a Texas
corporation (the "Seller"), and Spring Valley Scents, Inc., a Texas corporation
(the "Purchaser").
WHEREAS, Seller owns a 40% partnership interest (the "Partnership
Interests") in Laredo Candle Company L.L.P., a Texas limited liability
partnership (the "Partnership"); and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase, all
of the Partnership Interests on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
representations, warranties, covenants, and agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Sale and Purchase of Partnership Interests
1.1 Sale and Purchase of Partnership Interests. Concurrently herewith
and upon the terms set forth herein, Seller is selling, transferring, conveying,
assigning, and delivering to Purchaser, and Purchaser is purchasing, acquiring,
and accepting, all right, title, and interest of Seller in and to the
Partnership Interests, free and clear of all liens, pledges, security interests,
mortgages, charges, claims, restrictions, and encumbrances of any nature
whatsoever (collectively, "Liens").
1.2 Unadjusted Purchase Price. Purchaser will pay to Seller an
aggregate amount equal $8,700,000 for the Partnership Interests (the "Unadjusted
Purchase Price"), subject to adjustment as provided in Section 1.3 (which shall
not exceed $900,000) (as adjusted, the "Purchase Price"). The Unadjusted
Purchase Price, less $900,000 (the "Escrow Deposit") which is being paid
concurrently herewith to Chase Bank of Texas, National Association, as escrow
agent (the "Escrow Agent"), to be held for one year from the date hereof and
distributed pursuant to the Escrow Agreement by and among Seller, Purchaser, and
the Escrow Agent in the form of EXHIBIT A (the "Escrow Agreement"), is being
paid concurrently herewith by cashier's check or by wire transfer of immediately
available funds to the account of Seller designated on EXHIBIT B.
1.3 Adjustment of the Unadjusted Purchase Price.
(a) If the EBITDA Margin (determined in accordance with
Section 1.3(b)) of the Partnership is less than 21% for the 12 months
ended June 30, 2001 (the "Adjustment Date"), the Unadjusted Purchase
Price shall be decreased by a pro rata amount not to exceed $900,000
(the "Adjustment") in accordance with the adjustment schedule attached
as EXHIBIT C
(b) As used herein, the term (i) "EBITDA Margin" means EBITDA
as a percentage of net sales of the Partnership, (ii) "EBITDA" means
earnings before interest, tax, depreciation, and amortization, and
(iii) "Adjustment Statement" means the statement of EBITDA Margin to be
prepared by Purchaser as of the Adjustment Date in accordance with this
Section 1.3 and to be delivered to Seller as promptly as practicable,
and in any event within 60 days, after the Adjustment Date. The
Adjustment Statement shall be prepared by Purchaser in accordance with
United States generally accepted accounting principles ("GAAP") applied
in a manner consistent with the application of those principles in the
Interim Financial Statements and shall take into
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account any inflationary, material adverse changes in the total average
cost of labor and raw materials excluding new products.
(c) Seller shall have the opportunity to examine the work
papers, schedules, and other documents prepared by Purchaser in
connection with its preparation of the Adjustment Statement. The
Adjustment Statement shall be final and binding on the parties hereto
unless, within 30 days after delivery thereof to Seller, written notice
is delivered by Seller to Purchaser of its objection setting forth in
reasonable detail Seller's basis for objection. If written notice of
objection is delivered, Seller and Purchaser shall consult with each
other in respect of the objection. If Seller and Purchaser are unable
to reach agreement within 20 days after the notice of objection has
been delivered, the dispute shall be referred for resolution to Arthur
Andersen LLP (the "Accountants") as promptly as practicable. The
Accountants will make a determination as to each of the items in
dispute, which determination will be (i) in writing, (ii) furnished to
each of the parties hereto as promptly as practicable after the items
in dispute have been referred to the Accountants, (iii) made in
accordance with this Agreement, and (iv) conclusive and binding upon
each of the parties hereto. In connection with their determination of
the disputed items, the Accountants will be entitled to rely on the
workpapers, trial balances, and similar materials prepared by the
Partnership's auditors in connection with such firm's examination of
the financial statements of the Partnership, and the fees and expenses
of the Accountants will be shared equally by Purchaser and Seller.
Purchaser and Seller will use their respective reasonable best efforts
to cause the Accountants to render their decision as soon as reasonably
practicable, including promptly complying with all reasonable requests
by the Accountants for information, books, records, and similar items.
The fees and expenses of the Accountants shall be borne equally by
Seller and Purchaser; provided, however, that if the determination of
the Accountants is within three percent of Purchaser's determination as
set forth in the Adjustment Statement, the fees and expenses of the
Accountants shall be borne solely by Seller.
ARTICLE II
Representations and Warranties of Seller
Seller hereby makes the following representations and warranties to
Purchaser, each of which is true and correct as of the date hereof.
2.1 Organization and Power. Seller is a corporation duly incorporated,
validly existing, and in good standing under the Laws of the State of Texas. The
Partnership is a general partnership duly organized and validly existing under
the Laws of the State of Texas and registered as a limited liability partnership
under the Laws of the State of Texas. Seller has the requisite corporate power
and authority to own, lease, or otherwise hold the assets and properties owned,
leased, or otherwise held by it and necessary to carry on its business as
presently conducted by it and as proposed to be conducted by it.
2.2 Authorization. Seller has the requisite corporate power to execute
and deliver this Agreement and each other agreement, certificate, instrument,
and document contemplated by this Agreement to be executed by Seller in
connection with the consummation of the transactions contemplated hereby (all
other such agreements, certificates, instruments, and documents required to be
executed by Seller being collectively referred to as, the "Seller Documents")
and to perform the transactions contemplated hereby and thereby. The execution
and delivery by Seller of this Agreement and each Seller Document and the
performance by it of the transactions contemplated hereby and thereby to be
performed by it have been duly authorized by all necessary corporate action on
the part of Seller. Each of this Agreement and each Seller Document has been
duly executed and delivered by duly authorized officers of Seller and, assuming
the due execution and delivery of this Agreement and each Seller Document by the
other party or parties hereto or thereto, constitutes a valid and binding
obligation
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of Seller enforceable against Seller in accordance with its terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium, or other
similar Laws affecting the enforcement of creditors' rights in general and
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
2.3 No Conflicts. None of the execution and delivery of this Agreement
and each Seller Document, the performance by Seller of the transactions
contemplated hereby and thereby to be performed by it, or the consummation of
the transactions contemplated hereby and thereby, will (i) conflict with the
articles of incorporation or bylaws of Seller or the application for
registration as a limited liability partnership or the partnership agreement of
the Partnership, (ii) conflict with, result in any violation of, constitute a
default (with or without notice, lapse of time, or both) under, or give rise to
a right of termination, cancellation, or acceleration of, or any obligation or
to loss of a benefit under, any note, bond, mortgage, indenture, license,
agreement, or other document or obligation to which the Partnership is a party
or by which its assets or properties are bound, (iii) violate, constitute a
default under, or cause the forfeiture, impairment, non-renewal, revocation, or
suspension of any Permit, (iv) violate any order, judgment, decree, writ, or
injunction ("Order") of any federal, state, or local court, tribunal, or
arbitrator or governmental, administrative, or regulatory agency, authority, or
body or any instrumentality or political subdivision thereof ("Governmental
Entity") applicable to the Partnership, (v) violate any domestic or foreign law,
statute, ordinance, rule, or regulation ("Law") applicable to the Partnership,
or (vi) result in the creation of any Lien upon any of the Partnership's assets
or properties.
2.4 Consents and Approvals. No consent, approval, waiver, order, or
authorization of, or registration, declaration, or filing with, or notice to,
any third person or Governmental Entity (including any consent, approval,
waiver, or authorization in respect of any Contract or Permit) is required to be
obtained or made by or in respect of Seller or the Partnership in connection
with the execution and delivery of this Agreement or any Seller Document by
Seller, the performance by Seller of the transactions contemplated hereby or
thereby to be performed by it, or the consummation of the transactions
contemplated hereby or thereby.
2.5 Title to Partnership Interests. Seller owns the Partnership
Interests free and clear of all Liens and, except for this Agreement and the
Partnership's Agreement of Partnership, there is no agreement that gives any
person the right to purchase or otherwise receive or be issued any interest in
the Partnership. Upon consummation of the transactions contemplated hereby,
Seller will convey to Purchaser, and Purchaser will acquire from Seller, good
and marketable title to the Partnership Interests free and clear of all Liens.
2.6 Broker's Fees. Neither Seller nor any person acting on its behalf
has agreed to pay any commission, finder's or broker's fee, or similar payment
in connection with the transactions contemplated by this Agreement or any matter
related hereto to any person for which Purchaser, the Partnership, or any of
their respective affiliates will be liable.
2.7 Litigation; Orders. Except as set forth on Schedule 2.7, there is
no claim or judicial or administrative action, suit, proceeding, or
investigation pending or, to the best of Seller's knowledge, threatened (i) that
questions the validity of this Agreement or any Seller Document, the performance
by Seller of the obligations to be performed by it hereunder or thereunder, or
the consummation of the transactions contemplated hereby or thereby, or (ii)
relating to the business of the Partnership (as now conducted or as proposed to
be conducted) or otherwise affecting the Partnership or any of its assets or
properties. There is no Order of any Governmental Entity binding on the
Partnership or any of its assets or properties.
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2.8 Legal Compliance. The Partnership has complied with each Law and
Order binding on it or any of its assets or properties and is not currently in
violation of any such Law or Order.
2.9 Permits. Except as set forth on Schedule 2.9, the Partnership owns,
holds, possesses, or lawfully uses in its business all approvals,
authorizations, certifications, franchises, licenses, permits, and similar
authorities ("Permits") that are necessary for the conduct of its business as
currently conducted and as proposed to be conducted and for the ownership and
use of its assets or properties, free and clear of all Liens. The Partnership is
not in default and has not received any notice of any claim of default, in
respect of any such Permit.
2.10 Contracts. To the best of Seller's knowledge, Schedule 2.10 sets
forth each agreement, arrangement, commitment, contract, lease, license, plan,
and understanding, whether written or oral, to which the Partnership is a party
or otherwise bound, including all agreements relating to supplies, products,
equipment, raw materials, and other similar items ("Contracts"), except for such
Contracts that involve the payment by the Partnership of an aggregate amount
less than $5,000. To the best of Seller's knowledge, the Partnership is not in
default under any Contract and, to the best of Seller's knowledge, no other
party to any Contract is in default thereunder.
2.11 Intellectual Property.
(a) Schedule 2.11 sets forth all right, title, and interest of
the Partnership in and to all of the Intellectual Property owned or
used by the Partnership in the operation of its business and capable of
being described on such Schedule. The Partnership has the right to use,
free and clear of all claims or rights of others, all Intellectual
Property owned or used by it in the operation of its business, and such
use does not, to the best of Seller's knowledge, infringe on any
patent, trademark, copyright, service mark, or trade name, or
misappropriate any other Intellectual Property, of any other person.
The Partnership has taken all necessary action to protect and preserve
the confidentiality of all technical Intellectual Property not
otherwise protected by patents, patent applications, or copyrights. To
the best of Seller's knowledge, the Partnership has not interfered
with, infringed upon, misappropriated, or otherwise come into conflict
with any Intellectual Property rights of third persons, and the
Partnership has not received any charge, complaint, claim, or notice
alleging any such interference, infringement, misappropriation, or
violation. No third person has, to the best of Seller's knowledge,
interfered with, infringed upon, misappropriated, or otherwise come
into conflict with any Intellectual Property rights of the Partnership.
(b) The term "Intellectual Property" means all domestic and
foreign letters patent, patents, patent registrations and applications,
patent licenses, trademarks, trademark registrations and applications,
trade names, trade name applications and registrations, service marks,
service mark registrations and applications, know-how licenses, and
copyright registrations and applications, and the goodwill of the
Partnership's business associated therewith, together with copyrights
(including, copyrights in computer programs), computer programs,
service marks, trade secrets, technical knowledge, know-how,
confidential information, proprietary processes, formulae, and related
ownership, use, and other rights (including, rights of renewal and
rights to sue for past, present, and future infringements or
misappropriations thereof).
(c) Nothing in this Section 2.11 shall be construed to limit
Seller's right to the use of any technical knowledge, trade secrets,
know-how, proprietary processes, formulas, confidential information on
a non-exclusive use basis.
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2.12 Related-Party Transactions. No officer, director, employee, or
affiliate of Seller, any member of his or her immediate family, or any person
controlled by or under common control with any of the foregoing persons
("Related Persons") (i) owes any amount to the Partnership other than amounts
owed in respect of advances made in the ordinary course of business nor does the
Partnership owe any amount, or has it committed to make any loan or extend or
guarantee credit to or for the benefit of, any Related Person, (ii) has any
claim or cause of action or any action, suit, or proceeding whatsoever against
the Partnership except as otherwise disclosed herein, (iii) to the best of
Seller's knowledge, has any direct or indirect ownership interest in, or is an
officer, director, partner, member, manager, employee, consultant, or agent of,
any person that has a business relationship with the Partnership, or (iv) owns,
directly or indirectly, in whole or in part, any real property, leasehold
interest, or other property or any Permit, the use of which is necessary for the
conduct of the Partnership's business as currently conducted and as proposed to
be conducted. No Related Person has any direct or indirect interest in any
Contract.
2.13 Financial Statements. Attached as Schedule 2.13 is a true,
correct, and complete copy of the Partnership's unaudited financial statements
as at and for the fiscal year ended December 31, 1999 (the "1999 Financial
Statements") and as at and for the five-month period ended May 31, 2000 (the
"Interim Financial Statements" and, together with the 1999 Financial Statements,
the "Financial Statements"). The Financial Statements have been prepared in
accordance with GAAP consistently applied and fairly present the financial
condition, assets and liabilities, the results of operations, and cash flows of
the Partnership as of the dates, and for the periods, indicated therein, subject
in the case of the unaudited Financial Statements to normal year-end adjustments
and the absence of footnotes thereto. The term "Interim Financial Statements
Date" means the date of the Interim Financial Statements.
2.14 Absence of Undisclosed Liabilities. To the best of Seller's
knowledge, the Partnership has no liabilities, either direct or indirect,
matured or unmatured, fixed or contingent, known or unknown, asserted or
unasserted, choate or inchoate, liquidated or unliquidated, secured or unsecured
(whether or not required by GAAP to be set forth on a balance sheet or footnotes
thereto), except (i) those liabilities provided for or reserved against in the
Financial Statements, and (ii) liabilities arising in the ordinary course of
business since the Interim Financial Statements Date that are not material in
the aggregate. Except as disclosed in the Financial Statements, the Partnership
is not a guarantor or indemnitor of any debt, obligation, or liability of any
other person.
2.15 Absence of Certain Changes. Except as set forth on Schedule 2.15,
since the Interim Financial Statements Date, to the best of Seller's knowledge,
the Partnership has not: (i) made or suffered any amendment of any Contract
listed on Schedule 2.10 or cancelled, modified, or waived any debts or claims
held by it or waived any right, whether or not in the ordinary course of
business; (ii) suffered any event or circumstance that, individually or in the
aggregate, has had or could reasonably be expected to have a material adverse
effect on the business (as currently conducted or as proposed to be conducted),
operations, assets, properties, condition (financial or otherwise), or prospects
of the Partnership ("Material Adverse Effect"); (iii) increased the salaries or
other compensation of, or made any advance (excluding advances for ordinary and
necessary business expenses) or loan to, any of its current or former employees
or made any increase in, or any addition to, other benefits to which any of its
current or former employees may be entitled; (iv) made or agreed to make any
distribution or payment in respect of any interest in the Partnership; (v)
changed any of the accounting principles followed by it or the methods of
applying such principles; or (vi) entered into any transaction other than in the
ordinary course of business consistent with past practice.
2.16 [intentionally omitted].
2.17 Insurance. There are no pending claims against Seller's insurance
for Builder's Risk and Worker's Compensation or Liability Insurance.
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2.18 Real Property. Schedule 2.18 contains a true, correct, and
complete list of all real property owned or leased by the Partnership (the "Real
Property"). Except as set forth on Schedule 2.18, (i) the owned real property of
the Partnership is free and clear of all Liens including all encumbrances that
affect the ownership or use thereof, and (ii) the Partnership has good and
indefeasible title to, or a good and valid leasehold interest in, the Real
Property. Seller has not taken any action, or failed to take any action, which
such action or inaction has caused or could cause any diminution in, or
adversely affect the interest of the Partnership in any of the Real Property.
2.19 Inventory. All raw materials, components, work-in-progress,
finished products, packaging materials, stores and supplies, spare parts, and
samples used or useful in the operation of the Partnership's business
("Inventory") reflected on the Interim Financial Statements or acquired since
the Interim Financial Statements Date (i) were acquired and have been maintained
in the ordinary course of business; (ii) are in good and merchantable quality;
(iii) consist substantially of a quality, quantity, and condition usable,
leasable, or saleable in the ordinary course of business; (iv) are not subject
to any write-down or write-off.
2.20 Tangible Personal Property. The Partnership owns all machinery and
equipment, spare and maintenance parts, furniture, fixtures, vehicles, jigs,
tools, dies, leasehold improvements, and all other tangible personal property
used, useful in, or related to the business of the Partnership (collectively,
"Tangible Personal Property"), free and clear of all Liens. The laboratory,
equipment or facilities located at Seller's principal place of business do not
constitute property of the Partnership.
2.21 Title to and Condition of Assets and Properties. The Partnership
has good and marketable title to its assets and properties, and good title to
its leasehold estates, in each case subject to no Lien other than those that
have arisen in the ordinary course of business consistent with past practice and
that do not impair the Partnership's ownership or use of such assets or
properties. All of the Partnership's assets are in good operating condition and
repair, subject to normal wear and maintenance, are useable in the regular and
ordinary course of business, and conform to all applicable Laws and Permits
relating to their construction, use, and operation. Such assets constitute
the assets and rights used to operate the Partnership's business as
currently conducted and as proposed to be conducted. No person other than the
Partnership owns any Tangible Personal Property or other asset or property
situated on the premises of the Partnership or necessary to operate the
Partnership's business as currently conducted and as proposed to be conducted.
All Tangible Personal Property, Intellectual Property, Contracts, Inventory,
Permits, and other assets used, useful in, or related to the operation of the
Partnership's business are in the possession, custody, or control of the
Partnership.
2.22 Bank Accounts. Schedule 2.22 contains a true, correct, and
complete list of the names and locations of all banks in which the Partnership
has accounts or safe deposit boxes and the names of all persons authorized to
draw thereon or to have access thereto. No person holds a power of attorney to
act on behalf of the Partnership in relation to such accounts.
2.23 Accounts Payable. Schedule 2.23 sets forth a list of all accounts
payable of the Partnership as of June 23, 2000, including the name of the payor,
the aggregate amount thereof, and the due date thereof. As of the date hereof
all accounts payable of the Partnership reflected on the Interim Financial
Statements or arising after the Interim Financial Statements Date are the result
of bona fide transactions, in the ordinary course of business, and have been
paid or are not yet due and payable.
2.24 Affiliate Liabilities. Except as set forth on Schedule 2.24 which
shall specifically include inter-company obligations from Miracle to Laredo, if
any, (i) there are no liabilities between Seller or any of its affiliates, on
the one hand, and the Partnership on the other, and (ii) neither Seller nor any
of its
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affiliates provides or causes to be provided any products, services, equipment,
facilities, or other similar item to the Partnership.
2.25 Environmental Matters. Except as set forth in Schedule 2.25, the
Partnership possesses all Permits required by Environmental Laws for its
operations (collectively, "Environmental Permits"). The Partnership is and has
been in compliance with all Environmental Laws and Environmental Permits. There
are no claims or proceedings pending or threatened against the Partnership
alleging the violation of, non-compliance or potential liability under
Environmental Laws. For purposes of this Section 2.25, "Environmental Laws"
means any Law (including common law) or other legal requirement relating to the
protection of or the regulation of the human health and safety, environment, or
natural resources.
2.26 Accounts Receivable. Schedule 2.26 sets forth a true, correct, and
complete list of all accounts receivable of the Partnership. All accounts
receivable of the Partnership incurred by Seller have arisen from bona fide
transactions in the ordinary course of business consistent with past practice.
All invoices for monies owed to the Partnership have been tendered to Home
Interiors & Gifts, Inc. as of the date hereof. Except as set forth on Schedule
2.26, there are no accounts receivable owed by the Partnership to Seller.
2.27 Fixed Assets. Schedule 2.27 sets forth a true, correct, and
complete list of all fixed assets of the Partnership as of May 31, 2000.
2.28 Disclosure. No representation or warranty contained in this
Agreement, and no statement contained in any document (including the Schedules
attached hereto), list, certificate, or other instrument furnished or to be
furnished by or on behalf of Seller to Purchaser or any of its representatives
in connection with the transactions contemplated hereby, contains any untrue
statement of a material fact, or omits to state any material fact necessary, in
light of the circumstances under which it was made, in order to make the
statements herein or therein not misleading or necessary in order fully and
fairly to provide the information required to be provided in any such document,
list, certificate, or other instrument.
ARTICLE III
Representations and Warranties of Purchaser
Purchaser hereby makes the following representations and warranties to
Seller, each of which is true and correct as of the date hereof.
3.1 Organization. Purchaser is a corporation duly formed, validly
existing, and in good standing under the Laws of the State of Texas.
3.2 Authorization. Purchaser has the requisite corporate power to
execute and deliver this Agreement and each other agreement, certificate,
instrument, and document contemplated by this Agreement to be executed by
Purchaser in connection with the consummation of the transactions contemplated
hereby (all other such agreements, certificates, instruments, and documents
required to be executed by Purchaser being collectively referred to as, the
"Purchaser Documents" and, together with the Seller Documents, the "Related
Documents") and to perform the transactions contemplated hereby and thereby. The
execution and delivery by Purchaser of this Agreement and each Purchaser
Document and the performance by it of the transactions contemplated hereby and
thereby to be performed by it have been duly authorized by all necessary
corporate action on the part of Purchaser. Each of this Agreement and each
Purchaser Document has been duly executed and delivered by Purchaser and,
assuming the due execution and delivery of this Agreement and each Purchaser
Document by the other party or parties hereto or thereto, constitutes a valid
and binding obligation of Purchaser enforceable against Purchaser in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization,
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moratorium, or other similar Laws affecting the enforcement of creditors' rights
in general and subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity).
3.3 No Conflicts. None of the execution and delivery of this Agreement
and each Purchaser Document, the performance by Purchaser of the transactions
contemplated hereby and thereby to be performed by it, or the consummation of
the transactions contemplated hereby and thereby, will (i) conflict with the
articles of incorporation or the bylaws of Purchaser, (ii) conflict with, result
in any violation of, constitute a default (with or without notice, lapse of
time, or both) under, or give rise to a right of termination, cancellation, or
acceleration of, or any obligation or to loss of a benefit under, any note,
bond, mortgage, indenture, license, agreement, or other document or obligation
to which Purchaser is a party or by which its assets or properties are bound, or
(iii) violate any Order of any Governmental Entity or Law applicable to
Purchaser.
3.4 Consents and Approvals. No consent, approval, waiver, order, or
authorization of, or registration, declaration, or filing with, or notice to,
any third person or Governmental Entity is required to be obtained or made by or
in respect of Purchaser in connection with the execution and delivery of this
Agreement or any Purchaser Document by Purchaser, the performance by Purchaser
of the transactions contemplated hereby or thereby to be performed by it, or the
consummation of the transactions contemplated hereby or thereby. Purchaser has
obtained the consent of Home Interior & Gifts, Inc. to enter into and deliver
this Agreement and consummate the transactions contemplated hereby.
3.5 Broker's Fees. Neither Purchaser nor any person acting on its
behalf has agreed to pay any commission, finder's or broker's fee, or similar
payment in connection with the transactions contemplated by this Agreement or
any matter related hereto to any person for which Seller or its affiliates will
be liable.
ARTICLE IV
Covenants
4.1 Further Assurances. From time to time, as and when reasonably
requested by either party hereto, the other party shall execute and deliver, or
cause to be executed and delivered, all such further and additional instruments
and agreements and shall take such further and additional actions, as may be
reasonably necessary to evidence or carry out the provisions of this Agreement
or to effectuate the transactions contemplated hereby.
4.2 Public Announcements. Seller and Purchaser will consult with each
other and will mutually agree (the agreement of each party not to be
unreasonably conditioned, delayed, or withheld) upon the content and timing of
any press release or other public statements in respect of the transactions
contemplated by this Agreement and shall not issue any such press release or
make any such public statement prior to such consultation and agreement, except
as may be required by applicable Law or by obligations under any listing
agreement with any securities exchange or any stock exchange regulations;
provided, however, that Seller and Purchaser will give prior notice to the other
of the content and timing of any such press release or other public statement
required by applicable Law or by the obligations under any listing agreement
with any securities exchange or any stock exchange regulations.
4.3 [intentionally omitted].
4.4 Confidentiality. Purchaser, on the one hand, and Seller, on the
other hand, shall, and shall cause their respective officers, directors,
shareholders, members, managers, affiliates, employees, agents, and other
representatives to, keep confidential and not disclose all information obtained
by it in
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respect of the other and, in the case of Seller, the Partnership in connection
with this Agreement and the negotiations preceding this Agreement, and will use
such information solely in connection with the transactions contemplated hereby.
Notwithstanding the preceding sentence, no party hereto shall be required to
keep confidential or return any information that (i) is required to be disclosed
by Law, pursuant to an order or request of a Governmental Entity having
competent jurisdiction, or pursuant to the rules and regulations of any national
stock exchange applicable to the disclosing party and its affiliates (provided
the party seeking to disclose such information provides the other party with
reasonable prior written notice thereof), or (ii) can be shown to have been
generally available to the public other than as a result of a breach of this
Section 4.4.
4.5 Tax Matters.
(a) Seller shall be liable for, promptly defend, and
indemnify and hold Purchaser harmless from and against:
(i) 40% of all damages, liabilities, losses, or costs,
resulting from, arising out of, or relating to any and all
Taxes imposed on the Partnership, or other taxes for which
the Partnership may otherwise be liable including reasonable
fees and expenses of counsel (by reason of transferee
liability, assumption, contract, operation of law, or
otherwise):
(A) for any taxable year or period that ends
on or before the date hereof; and
(B) for the portion of any Straddle Period
that ends immediately after the close of business on
the date hereof;
(ii) 100% of all damages, liabilities, losses, or
costs, including reasonable fees and expenses of counsel,
resulting from, arising out of, or relating to the following:
(A) any failure by the Seller to timely pay
any and all Transfer Taxes; and
(B) any breach or inaccuracy of the
Certification of Non-Foreign Status.
The term "Straddle Period" means any taxable year or period beginning before and
ending after the date hereof.
(b) To the extent permitted by Law or administrative practice,
the taxable year of the Partnership that includes the date hereof shall
be treated as closing immediately after the close of business on the
date hereof. Where it is necessary to apportion between Seller and
Purchaser the Tax liability for a Straddle Period (that is not treated
under the immediately preceding sentence as closing immediately after
the close of business on the date hereof), such liability shall be
apportioned between the period deemed to end at the close of business
on the date hereof (the "Pre-Closing Period") and the period deemed to
begin at the beginning of the day following the date hereof (the
"Post-Closing Period") on the basis of an interim closing of the books;
provided, however, that property Taxes whose lien date is in the
Pre-Closing Period shall be allocated to the Pre-Closing Period and
property Taxes whose lien date is in the Post-Closing Period shall be
allocated to the Post-Closing Period; provided, further, that any
taxable event occurring after the date hereof that is outside of the
ordinary course of the Partnership's business of manufacturing and sale
of candles (such as the sale of real property) will be allocated to the
Post-Closing Period.
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(c) Seller shall be liable for and shall pay 100% of all
Transfer Taxes resulting from, arising out of, or based on the
transactions contemplated by this Agreement. The term "Transfer Taxes"
means all sales, use, stamp, documentary, filing, recording, transfer,
real estate transfer, stock transfer, gross receipts, registration,
duty, securities transactions or similar fees or taxes or governmental
charges (together with any interest or penalty, addition to tax, or
additional amount imposed) as levied by any taxing authority in
connection with the transactions contemplated by this Agreement.
(d) Instead of the allocation specified in the first sentence
of Section 6.1(b) of the Partnership Agreement, Seller's 40% interest
in Partnership items of income, gain, loss, and deduction for the 2000
calendar year shall be allocated between Seller and Purchaser under an
interim closing of the Partnership's books in a manner consistent with
the applicable provisions of the Code.
(e) At the option of Purchaser, the Partnership will timely
make the election to in Section 754 of the Internal Revenue Code of
1986, as amended (the "Code") in respect of the Partnership's taxable
years (including the short taxable year ending on the date hereof) in
which the sale contemplated by this Agreement occurs.
(f) The term "Taxes" means all taxes, charges, fees, imposts,
levies, gaming or other assessments, including all net income, gross
receipts, capital, sales, use, ad valorem, value added, transfer,
franchise, profits, inventory, capital stock, license, withholding,
payroll, employment, social security, unemployment, excise, severance,
stamp, occupation, property and estimated Taxes, customs, duties, fees,
assessments, and charges of any kind whatsoever, together with any
interest and any penalties, fines, additions to Tax, or additional
amounts imposed by any taxing authority (domestic or foreign) and
include any transferee liability in respect of Taxes, any liability in
respect of Taxes imposed by contract, Tax sharing agreement, Tax
indemnity agreement, or any other similar agreement.
ARTICLE V
Documents Delivered Upon Execution and Delivery Hereof
5.1 Documents Delivered by Seller. Concurrently with the execution and
delivery of this Agreement, Seller is delivering to Purchaser each of the
following items:
(a) Assignment Agreement. An original copy of the Assignment
Agreement duly executed by Seller in a form attached as EXHIBIT D (the
"Assignment Agreement").
(b) Escrow Agreement. An original copy of the Escrow Agreement
duly executed by Seller and Escrow Agent.
(c) Officer's Certificate. An original copy of an Officer's
Certificate duly executed by the President and the Secretary of Seller
certifying that: (A) the articles of incorporation of Seller as
attached thereto are true, correct, and complete, have not been
modified, amended, or repealed, and are in full force and effect; (B)
the bylaws of Seller as attached thereto are true, correct, and
complete, have not been modified, amended, or repealed, and are in full
force and effect; and (C) the duly executed copy of the resolutions of
the board of directors of Seller authorizing and approving the
execution and delivery of this Agreement and each Seller
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Document and the consummation of the transactions contemplated hereby
and thereby, as attached thereto are true, correct, and complete and
have not been modified or withdrawn.
(d) License Agreement. A copy of the License Agreement duly
executed by Seller and the Partnership in a form attached as EXHIBIT E
(the "License Agreement")
(e) Books and Records of the Partnership. All books, records,
files, and documents (whether in paper, electronic, or other format) of
the Partnership or relating to the business of the Partnership,
including all books and records relating to the employees, the purchase
of materials, supplies, and services, tax, financial, accounting, and
operational matters, product research and development, manufacturing
and sale of products, and all customer and vendor lists and other
information relating to customers and vendors of the Partnership or its
business, all correspondence with any Governmental Entity, and the
partnership agreement and all applications for registration as a
limited liability partnership.
(f) Resignations. Evidence that each of (i) Jorge Garcia and
Richard Garcia has resigned as a member of the management committee of
the Partnership, and (ii) Richard Garcia, Sr., Jorge Garcia, Richard
Garcia, Jr., and Jaime Garcia has resigned as an officer of the
Partnership.
(g) Termination of Pledge. Evidence that the Pledge Agreement
dated as of February 18, 1999 executed in connection with the loan by
Donald Carter has been terminated and ceased to have any force or
effect.
(h) Certificate of Non-Foreign Status. A copy of the
Certificate of Non-Foreign Status duly executed by Seller in the form
attached hereto as EXHIBIT F ("Certificate of Non-Foreign Status").
5.2 Documents Delivered by Purchaser. Concurrently with the execution
and delivery of this Agreement, Purchaser is delivering to Seller each of the
following items:
(a) Unadjusted Purchase Price. The Unadjusted Purchase Price
in accordance with Section 1.2.
(b) Escrow Agreement. An original copy of the Escrow Agreement
duly executed by Purchaser and Escrow Agent.
(c) Officer's Certificate. An original copy of an Officer's
Certificate duly executed by the Secretary of Purchaser certifying
that: (A) the articles of incorporation of Purchaser, have not been
modified, amended, or repealed, and are in full force and effect; (B)
the bylaws of Purchaser have not been modified, amended, or repealed,
and are in full force and effect; and (C) the duly executed copy of the
resolutions of the board of directors of Purchaser authorizing and
approving the execution and delivery of this Agreement and each
Purchaser Document and the consummation of the transactions
contemplated hereby and thereby, as attached thereto are true, correct,
and complete and have not been modified or withdrawn.
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ARTICLE VI
Miscellaneous
6.1 Amendments. This Agreement may be amended, modified, or
supplemented only pursuant to a written instrument making specific reference to
this Agreement and signed by each of the parties hereto.
6.2 Assignment. This Agreement and the rights and obligations hereunder
shall not be assigned, delegated, or otherwise transferred (whether by operation
of law, by contract, or otherwise) without the prior written consent of the
other party hereto; provided, however, that Purchaser may, without obtaining the
prior written consent of Seller, (i) assign, delegate, or otherwise transfer its
rights and obligations hereunder to (a) any successor of Purchaser by merger or
otherwise, (b) a subsidiary or affiliate of Purchaser, (c) the purchaser of all
or substantially all the assets of Purchaser, or (d) any of its affiliates, or
(ii) make a collateral assignment of its rights hereunder to any institutional
lender to Purchaser. Seller shall execute such acknowledgements of such
assignments and collateral assignments in such forms as Purchaser or any such
institutional lender may from time to time reasonably request. Any attempted
assignment, delegation, or transfer in violation of this Section 6.2 shall be
void and of no force or effect.
6.3 Binding Effect. Except as otherwise expressly provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
6.4 Construction. All references to "Articles," "Sections,"
"Schedules," and "Exhibits" contained in this Agreement are, unless specifically
indicated otherwise, references to articles, sections, schedules, or exhibits of
or to this Agreement. Whenever in this Agreement the singular number is used,
the same shall include the plural where appropriate (and vice versa), and words
of any gender shall include each other gender where appropriate. As used in this
Agreement, the following words or phrases shall have the meanings indicated: (i)
"or" means "and/or"; (ii) "day" means a calendar day; (iii) "business day" means
any day other than Saturday, Sunday, or any day on which banks in Dallas, Texas
are required or authorized by Law to be closed for business; (iv) "U.S." or
"United States" means the United States of America; (v) "dollar" or "$" means
lawful currency of the United States; (vi) "including" or "include" means
"including without limitation"; (vii) references in this Agreement to specific
Laws or to specific sections or provisions of Laws, apply to the respective U.S.
or state Laws that bear the names so specified and to any succeeding Law,
section, or provision corresponding thereto; (viii) "person" means any
individual, corporation, partnership, joint venture, limited liability company,
trust, unincorporated association, or other legal entity or form of business or
Governmental Entity; (ix) "affiliate" means, in respect of any specified person,
any other person that, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified person; and (x) for purposes of the definition of "affiliate,"
"control" when used in respect of any person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract, or otherwise (and "controlling"
and "controlled" have meanings correlative thereto).
6.5 Counterparts. This Agreement may be executed in multiple
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
6.6 Entire Agreement. This Agreement (including the Schedules and
Exhibits attached hereto and the Related Documents) constitute the entire
agreement of the parties hereto in respect of the
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subject matter hereof and thereof, and supersede all prior agreements or
understandings, among the parties hereto in respect of the subject matter hereof
and thereof.
6.7 Expenses. Each party shall bear all expenses incurred by or on
behalf of it (including fees and disbursements of its counsel) in connection
with the preparation, negotiation, execution, delivery, and performance of this
Agreement and each Related Document, and the consummation of the transactions
contemplated hereby and thereby.
6.8 Governing Law. This Agreement shall be enforced, governed, and
construed in all respects in accordance with the laws of the State of Texas
applicable to contracts executed and performable solely in such state.
6.9 Headings. The article and section headings of this Agreement are
for convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provision hereof.
6.10 Jurisdiction. The parties hereto agree that any action, suit, or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or relating to, this Agreement or the transactions contemplated hereby
can only be brought in federal court sitting in the Northern District of Texas
or, if such court does not have jurisdiction, any district court sitting in
Dallas County, Texas, and each of the parties hereto hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such action, suit, or proceeding and irrevocably waives, to the fullest
extent permitted by Law, any objection that it may now or hereafter have to the
laying of the venue of any such action, suit, or proceeding in any such court or
that any such action, suit, or proceeding that is brought in any such court has
been brought in an inconvenient forum.
6.11 Notices. Any notice, demand, request, instruction, correspondence,
or other document required or permitted to be given hereunder by any party
hereto to the other shall be in writing and delivered (i) in person, (ii) by a
nationally recognized overnight courier service requiring acknowledgment of
receipt of delivery, (iii) by United States certified mail, postage prepaid and
return receipt requested, or (iv) by facsimile, as follows:
If to Seller, to:
Miracle Candle Company
3100 Guadalupe
Laredo, Texas 78043
Attention: Jorge Garcia
Facsimile No.: (956) 722-6741
with a copy to:
David Garcia
P. O. Box 1758
Laredo, Texas 78043
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If to Purchaser, to:
Spring Valley Scents, Inc.
c/o Home Interiors & Gifts, Inc.
4055 Valley View, Suite 500
Dallas, Texas 75244
Attention: General Counsel
Facsimile: (972) 386-1106
with a copy to:
Weil, Gotshal & Manges LLP
100 Crescent Court, Suite 1300
Dallas, Texas 75201-6905
Attention: Jeffrey B. Hitt
Facsimile: (214) 746-7777
Notice shall be deemed given, received, and effective on: (i) if given
by personal delivery or courier service, the date of actual receipt by the
receiving party, or if delivery is refused on the date delivery was first
attempted; (ii) if given by certified mail, the third day after being so mailed
if posted with the United States Postal Service; and (iii) if given by
facsimile, the date on which the facsimile is transmitted if confirmed by
transmission report during the transmitter's normal business hours, or at the
beginning of the next business day after transmission if confirmed at any time
other than the transmitter's normal business hours. Any person entitled to
notice may change any address or facsimile number to which notice is to be given
to it by giving notice of such change of address or facsimile number as provided
in this Section 6.11. The inability to deliver notice because of changed address
or facsimile number of which no notice was given shall be deemed to be receipt
of the notice as of the date such attempt was first made.
6.12 Severability. If any provision of this Agreement or the
application of such provision to any person or circumstance shall be held (by a
court of competent jurisdiction) to be invalid, illegal, or unenforceable under
the applicable Law of any jurisdiction, (i) the remainder of this Agreement or
the application of such provision to other persons or circumstances or in other
jurisdictions shall not be affected thereby, and (ii) such invalid, illegal, or
unenforceable provision shall not affect the validity or enforceability of any
other provision of this Agreement.
6.13 Specific Performance. Seller hereby acknowledges and agrees that
if Seller refuses to perform under this Agreement, monetary damages alone will
not be adequate to compensate Purchaser for its injury. Purchaser shall,
therefore, to the extent provided by applicable Law, be entitled to, in addition
to any other remedies that may be available, obtain specific performance of the
terms and provisions of this Agreement.
6.14 Third-Party Beneficiaries. Nothing express or implied in this
Agreement is intended or shall be construed to confer upon or give any person
other than the parties hereto and their respective permitted assigns any rights
or remedies under of by reason of this Agreement or the transactions
contemplated hereby.
6.15 Waiver. The rights and remedies provided for herein are cumulative
and not exclusive of any right or remedy that may be available to any party
hereto whether at law, in equity, or otherwise. No delay, forbearance, or
neglect by any party hereto, whether in one or more instances, in the exercise
or any right, power, privilege, or remedy hereunder or in the enforcement of any
term or condition of this
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Agreement shall constitute or be construed as a waiver thereof. No waiver of any
provision hereof, or consent required hereunder, or any consent or departure
from this Agreement, shall be valid or binding unless expressly and
affirmatively made in writing and duly executed by the party to be charged with
such waiver. No waiver shall constitute or be construed as a continuing waiver
or a waiver in respect of any subsequent breach or default, either of similar or
different nature, unless expressly so stated in such writing.
6.16 Survival of Representation, Warranties, and Covenants. The
representations, warranties and covenants of Seller and Purchaser shall survive
for a period of one year from the date hereof except (i) such representations
and warranties as to title which shall survive indefinitely, and (ii) such
representations, warranties, and covenants that are as of a specified date or
period.
* * * * *
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
SELLER:
MIRACLE CANDLE COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PURCHASER:
SPRING VALLEY SCENTS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------