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Asset Purchase Agreement |
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2001 |
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$69 |
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ASSET PURCHASE AGREEMENT
------------------------
THIS ASSET PURCHASE AGREEMENT is made and entered into this 8th day of
September, 2000 by and among INVESTORS 300, INC., DOMEX, INC. and L&L LEASING,
INC., all Indiana corporations (hereinafter referred to individually as "SELLER"
and collectively as "SELLERS"), JERRY BOMAN, WAYNE COOK, GLEN E. COOK and
PHILLIP L. ELBERT (hereinafter referred to as the "Shareholders"), and INERGY
PARTNERS, LLC, a Delaware limited liability company (hereinafter referred to as
"BUYER").
RECITALS
--------
A. Each SELLER desires to sell to BUYER substantially all of the
assets of such SELLER related to such SELLER's business upon the terms and
conditions hereinafter set forth; and
B. BUYER desires to acquire such assets from SELLERS upon the terms
and conditions hereinafter set forth.
AGREEMENT
---------
In consideration of the above premises, the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
----------------------
In addition to terms defined elsewhere in this Agreement, the
following terms shall have the meanings assigned to them herein, unless the
context otherwise dictates, both for purposes of this Agreement and all
Schedules and Exhibits hereto:
"Accounts Receivable" shall have the meaning set forth in Section
3.1(c) hereof.
"Accounts Receivable Date" shall have the meaning set forth in Section
3.1(c) hereof.
"Adverse Effect" shall mean a single event, occurrence or fact or
related series of events, occurrences or facts having an adverse effect on the
Assets, Business, operations, prospects or financial condition of any SELLER.
"Affiliate" shall mean "affiliate" and "associate" as such terms are
defined in Rule 405 of the Securities Act of 1933.
"Agreement" or "this Agreement" shall mean this Asset Purchase
Agreement, as amended from time to time by the parties hereto, together with all
Schedules and Exhibits hereto.
"Acquisition Proposal" shall have the meaning set forth in Section
9.10 hereof.
"Assets" shall mean all of the assets and properties used by each
SELLER in its Business (except the Excluded Assets as defined herein) including,
without limitation, the entire
{PAGE}
right, title and interest in and to all of the assets and properties described
on Schedules 2.1A, 2.1B, 2.1C, 2.1D, 2.1F, 2.1J and 2.1K.
"Assumed Contracts" shall mean the Contracts and Other Agreements set
forth on Schedules 2.1B, 2.1D and Part A of Schedule 2.1F and those of the type
described on Part B of Schedule 2.1F that do not violate any other provisions of
this Agreement.
"Balance Sheet" shall mean the balance sheet of Domex, Inc., dated
October 31, 1999, the balance sheet of Investors 300, Inc., dated September 30,
1999 and the balance sheet of L&L Leasing, dated December 31, 1999.
"Balance Sheet Date" shall mean, with respect to each SELLER, the date
of the Balance Sheet of such SELLER.
"Benefit Plans" shall have the meaning set forth in Section 6.18(a)
hereof.
"Business" shall mean, in the case of Investors 300, Inc., the
business of marketing and distributing propane gas and selling, servicing and
installing parts, appliances and supplies related thereto on a retail basis; in
the case of Domex, Inc., the wholesale distribution of propane gas; and in the
case of L&L, Leasing, Inc., the business of truck transportation of propane gas,
natural gas liquids and other products and truck fabrication and refabrication.
"Carrier Permits" shall mean the licenses, permits and the like that
are required by Federal or state regulations to operate the truck transportation
business of L&L Leasing, Inc.
"Claim Notice" shall have the meaning set forth in Section 12.4
hereof.
"Closing" shall mean the transfer by each SELLER to BUYER of such
SELLER's Assets and by BUYER to such SELLER of the consideration set forth
herein and the consummation of the transactions contemplated by this Agreement.
"Closing Date" shall be the date of the Closing established pursuant
to Section 4.1 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Contracts and Other Agreements" shall mean all contracts, agreements,
understandings, indentures, notes, bonds, loans, instruments, leases, subleases,
mortgages, franchises, licenses, commitments or binding arrangements, express or
implied, oral or written.
"Covered Person" shall have the meaning set forth in Section 9.16(b)
hereof.
"Customer Deposits" shall have the meaning set forth in Section 3.1(x)
hereof.
"Cut-Off Date" shall have the meaning set forth in Section 15.1(b)
hereof.
"Damages" shall have the meaning set forth in Section 12.1B hereof.
"Documents and Other Papers" shall mean and include any document,
agreement, instrument, certificate, notice, consent, affidavit, letter,
telegram, telex, statement, file, computer
{PAGE}
disk, microfiche or other document in electronic format, schedule, exhibit or
any other paper whatsoever.
"Environmental Escrow" shall have the meaning set forth in Section 4.5
hereof.
"ERISA" shall have the meaning set forth in Section 6.18(a) hereof.
"Excluded Assets" shall have the meaning set forth in Section 2.2
hereof.
"Facility" shall have the meaning set forth in Section 6.21 hereof.
"Fixed Purchase Contracts" shall have the meaning set forth in Section
3.2 hereof.
"Fixed Sales Contracts" shall have the meaning set forth in Section
3.2 hereof.
"GAAP" shall mean generally accepted accounting principles
consistently applied.
"Growth Capital Expenditures" shall mean capital expenditures that are
incurred to increase the amount of Business of a SELLER and that are approved in
writing by BUYER in advance of such incurrence; it being (i) agreed that the
expenditures for tractors, trailers, vehicles, land, buildings and other items
listed on Schedule 3.1(d) hereto are Growth Capital Expenditures, (ii) agreed
that expenditures for retail customer propane tanks are not Growth Capital
Expenditures but are covered in Section 3.1(h) below, and (iii) recognized that
not all capital expenditures increase the amount of Business of a SELLER and
therefore are not Growth Capital Expenditures hereunder, including, without
limitation, capital expenditures (a) made to maintain and serve existing
revenues of the Business, (b) made to replace equipment, or (c) made for
extraordinary maintenance.
"Hazardous Substances" shall have the meaning set forth in Section
6.21(a) hereof.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
"Indemnified Party" shall have the meaning set forth in Section 12.4
hereof.
"Indemnifying Party" shall have the meaning set forth in Section 12.4
hereof.
"IPO" shall have the meaning set forth in Section 9.12(a) hereof.
"Kendallville and Waterloo Properties" shall have the meaning set
forth in Section 9.19(a) hereof.
"Kendallville and Waterloo Environmental Claims" shall have the
meaning set forth in Section 12.1A(a) hereof.
"Knowledge" with respect to a SELLER shall encompass all facts and
information which are within the actual knowledge of any of the Shareholders and
any of the
{PAGE}
following officers or employees of a SELLER: Brian Albright, Joe H. Donnell,
Bradley A. Griffith, Janet Misener and Daniel E. Manson.
"Lien" shall mean any lien, pledge, claim, charge, security interest
or encumbrance of any nature whatsoever.
"Liabilities" shall have the meaning set forth in Section 4.2(b)
hereof.
"Material Adverse Effect" shall mean with respect to the consequences
of any fact or circumstance (including the occurrence or non-occurrence of any
event) to any SELLER, that such fact or circumstance has caused, is causing or
will cause directly, indirectly or consequentially, any Damages in excess of One
Hundred Thousand Dollars ($100,000); provided that the foregoing shall not
include the consequences of any fact or circumstance attributable to (i) factors
generally affecting the industry in which the Business of such SELLER operates,
(ii) general national, regional or local economic or financial conditions, or
(iii) changes in governmental or legislative laws, rules or regulations.
"Material Contract" shall mean and involve any Contracts and Other
Agreements, if it involves, relates to or affects the Business or the Assets or
both and if any one or more of the following applies: (i) it involves, or may
reasonably be expected to involve, the payment or receipt of Ten Thousand
Dollars ($10,000) or more (whether in cash or in goods or services of an
equivalent value) over its term, including renewal options, or Five Thousand
Dollars ($5,000) during any one year, (ii) it imposes restrictions on the
conduct of the Business, (iii) it was not made in the ordinary and usual course
of the Business consistent with past practice, (iv) it is a continuing contract
for the purchase, sale or distribution of materials, supplies, equipment,
products or services, (v) it burdens, benefits, or imposes liabilities upon, or
otherwise with respect to, any real property owned or leased by a SELLER, (vi)
it is not cancelable on notice of not longer than thirty (30) days and without
liability, penalty or premium, (vii) the present or prospective Business is
dependent upon it, or (viii) it involves the future purchase or sales of propane
at a fixed price.
"MLP" shall have the meaning set forth in Section 9.12(a) hereof.
"Noncompetition Agreements" shall have the meaning set forth in
Section 3.4 hereof.
"Notice Period" shall have the meaning set forth in Section 12.4
hereof.
"Organizational Documents" of an entity shall mean, if a corporation,
its articles of incorporation or certificate of incorporation, as the case may
be, and Bylaws, and if a limited liability company, its certificate of formation
and limited liability company agreement, and any other documents, agreements or
instruments relating to the creation, formation, organization, governance or
ownership of such entity.
"Operating Loss Adjustment" shall have the meaning set forth in
Section 3.1(i) hereof.
"Other Properties" shall have the meaning set forth in Section 9.19(b)
hereof.
{PAGE}
"Other Properties Environmental Claims" shall have the meaning set
forth in Section 12.1A(d) hereof.
"Parts and Appliances Inventory" shall have the meaning set forth in
Section 3.1(b) hereof.
"Permitted Encumbrances" shall have the meaning set forth in Section
9.15 hereof.
"Person" means a natural person, partnership, limited partnership,
corporation, limited liability company, trust, government, government agency and
any other legal entity.
"Preferred Interest" shall have the meaning set forth in the amendment
to the limited liability company agreement of Inergy Partners, LLC pursuant to
Section 3.7 hereof.
"Propane Inventory" shall have the meaning set forth in Section 3.1(a)
hereof.
"Propane Supply Contracts" shall mean contracts between a SELLER and a
third party whereby the third party agrees to supply such SELLER with propane,
at daily-posted prices, but such term does not include Fixed Purchase Contracts.
"Purchase Price" shall have the meaning set forth in Section 3.1
hereof.
"Purchase Price Increase" shall have the meaning set forth in Section
3.1(j) hereof.
"Real Property" shall have the meaning set forth in Section 6.10(a)
hereof.
"Registration Statement" shall have the meaning set forth in Section
9.12(e) hereof.
"Release" shall have the meaning set forth in Section 6.21(a) hereof.
"Retained Liabilities" shall have the meaning set forth in Article 5
hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Senior Subordinated Units" are those senior subordinated units
described in Exhibit C hereto.
"Supplemental Information" shall have the meaning set forth in Section
9.11 hereof.
"Survey" shall have the meaning set forth in Section 9.15 hereof.
"Title Commitment" shall have the meaning set forth in Section 9.15
hereof.
"Title Company" shall have the meaning set forth in Section 9.15
hereof.
"Title Policy" shall have the meaning set forth in Section 9.15
hereof.
{PAGE}
"Vehicle Transfer Taxes" shall have the meaning set forth in Section
4.4 hereof.
ARTICLE 2. PURCHASE AND SALE OF ASSETS
--------------------------------------
2.1 Assets. Subject to the terms and conditions hereof and subject
------
to the representations and warranties made herein and except as otherwise
provided in Section 2.2, at the Closing each SELLER shall validly sell, assign,
transfer, grant, bargain, deliver and convey to BUYER (or to one or more of its
designees) the Assets.
2.2 Excluded Assets. Anything in Section 2.1 to the contrary
---------------
notwithstanding, the assets listed or described on Schedule 2.2 shall not be
transferred to BUYER (the "Excluded Assets").
2.3 Non-Assignable Contracts. This Agreement and any document
------------------------
delivered hereunder shall not constitute an assignment or an attempted
assignment by a SELLER of any right contemplated to be assigned to BUYER
hereunder:
(a) That is not assignable by such SELLER without the consent of
a third party if such consent has not been obtained and such assignment or
attempted assignment would constitute a breach thereof; or
(b) If the remedies for the enforcement or any other particular
provisions thereof available to such SELLER would not pass to BUYER.
Each SELLER shall use reasonable commercial efforts (but with no requirement to
make any out-of-pocket expenditures) to obtain such consents of third parties as
may be necessary for the assignment of such right by such SELLER. To the extent
that such right of a SELLER is not assignable or where consents to the
assignment thereof cannot be obtained as herein provided, such SELLER shall, at
the Closing, assign to BUYER the full benefit thereof (which shall be deemed to
be Assets) and grant to BUYER, to the extent permitted by applicable law, an
irrevocable power of attorney to perform such SELLER's covenants and obligations
under such rights in respect of the period after the Closing Date, and to
enforce such SELLER's rights thereunder in the name of such SELLER but for the
benefit of BUYER.
ARTICLE 3. PURCHASE PRICE
-------------------------
3.1 Aggregate Purchase Price. The aggregate purchase price (the
------------------------
"Purchase Price") for the Assets and the Noncompetition Agreements is Sixty-Six
Million Dollars ($66,000,000), plus an amount equal to the sum of the following:
(a) The inventory of propane gas (i) located in each SELLER's
bulk storage tanks and bobtails on the Closing Date and useable and
saleable in the ordinary course of the Business of such SELLER, the amount
of such inventory to be based upon a reading from the sight gauge located
on such bulk storage tanks and bobtails (adjusted to 60 degrees Fahrenheit)
taken jointly by a representative of BUYER and a representative of such
SELLER on the Closing Date and priced based upon the lowest wholesale
delivered price at which such SELLER could purchase propane on the Closing
Date, and (ii) owned by any SELLER and stored in third party storage
facilities, and priced based upon (x) the actual cost of (1) up to Two
Million (2,000,000) gallons of such inventory that is located
{PAGE}
at the Marysville, Michigan underground storage facility on the Closing
Date and (2) any additional such inventory held by such SELLER to meet the
obligations of such SELLER pursuant to long-term contracts described in
Section 3.2 hereof, and (y) for all other such inventory, the lower of
actual cost or market price at such storage facility on the Closing Date
(the "Propane Inventory"). (The Parties recognize that BUYER will be
assuming certain Fixed Purchase Contracts for the purchase of propane
pursuant to Section 3.2 hereof.);
(b) The inventory of gasoline and diesel fuels owned by each
SELLER and priced at the lower of actual cost or market price at each
facility, and the inventory of parts, equipment held for resale, work in
progress and appliances of each SELLER on the Closing Date usable and
saleable in the ordinary course of the Business of such SELLER, with the
amount of such inventory to be based upon a physical inventory taken
jointly by a representative of BUYER and a representative of such SELLER on
the Closing Date and priced based upon the average cost method for
inventory regularly employed by such SELLER in its inventory accounting
practices; provided, however, that no amount shall be paid under this
Section 3.1(b) for new or used retail customer propane tanks (the "Parts
and Appliances Inventory");
(c) Accounts receivable (the "Accounts Receivable") arising from
the Business of each SELLER and owned by such SELLER as of the Closing Date
that are actually collected within one hundred eighty (180) days after the
Closing (the "Accounts Receivable Date");
(d) An amount equal to the sum of the Growth Capital Expenditures
incurred by all SELLERS on or after August 1, 1999 and prior to the Closing
Date (an itemized list of all Growth Capital Expenditures including the
amount of each item from August 1, 1999 to July 31, 2000 is attached hereto
as Schedule 3.1(d)), which are hereby approved by BUYER;
(e) An amount equal to the pre-paid expenses (such as, for
example, customer promotions and deposits for future expenditures) as
reflected on the books and records of each SELLER as of the Closing Date to
the extent such expenses have been approved in advance and in writing by
BUYER to be included for purposes of this Section 3.1(e), including the
pre-paid expenses incurred to date as set forth in Schedule 3.1(e) attached
hereto;
(f) An amount equal to the outstanding balance owed by River
Valley Cooperative on the Closing Date under that certain Promissory Note
dated January 25, 2000, executed by River Valley Cooperative, less $25,000;
(g) An amount equal to the amount calculated in this Section
3.1(g). First, a physical inventory of the number of new (not used) retail
customer propane tanks owned by each SELLER on the Closing Date usable and
saleable in the ordinary course of the Business of such SELLER shall be
taken jointly by a representative of BUYER and a representative of such
SELLER on the Closing Date. The cost per tank used to value this physical
inventory will be the most recent net price per tank paid for by such
SELLER. The total value of physical inventory of new tanks on the Closing
Date determined above shall be adjusted by the following number "x" to
arrive at the total
{PAGE}
amount paid under this Section 3.1(g). The number "x" shall be equal to Net
Purchases minus Net Sets; where, "Net Purchases" is equal to the number of
all new (not used) retail customer propane tanks purchased by SELLERS from
August 1, 1999 to the Closing Date, minus the number of new tanks sold
during such period, in both cases in the ordinary course of business of
such SELLER consistent with past practices of such SELLER and consistent
with industry practices, and "Net Sets" is equal to the number of retail
customer propane tanks installed by SELLERS from August 1, 1999 to the
Closing Date, in the ordinary course of business of such SELLER consistent
with past practices of such SELLER and consistent with industry practices,
minus the number of used tanks picked up from retail customers during such
period. If the number of tanks calculated in "x" is negative, then 90% of
that number "x" shall be added to the value of the physical inventory of
new tanks on the Closing Date to arrive at the total net dollar amount paid
for under this Section 3.1(g). If the number of tanks calculated in "x" is
positive, then 90% of that number "x" shall be deducted from the value of
the physical inventory of new tanks on the Closing Date to arrive at the
total net dollar amount paid for under this Section 3.1(g). If the number
of tanks calculated in "x" is zero, then the actual physical inventory of
new tanks on Closing Date shall be paid with no adjustments. The value per
tank to be used in any adjustment for "x" shall be the most recent price
paid by SELLER for such tanks.
(h) An amount equal to the number of Net Sets (as defined in
Section 3.1(g) above) multiplied by the sum of $125, plus an amount equal
to the actual cost of all new (not used) tanks purchased by SELLERS, minus
the number of new tanks sold by SELLERS during such period, in both cases
since August 1, 1999 to the Closing Date. (An itemized calculation of the
sum payable pursuant to this Section 3.1(h) through July 31, 2000 is set
forth in Schedule 3.1(h) and is hereby approved by SELLERS and BUYER);
(i) An amount equal to $1,700 per day for each day between June
30, 2000 and the Closing Date (the "Operating Loss Adjustment");
(j) An amount equal to the sum of (A) plus (B), where (A) equals
nine percent (9%) of Six Million Dollars ($6,000,000) multiplied by a
fraction the numerator of which is the number of days between June 30, 2000
and the Closing Date and the denominator of which is 365, and (B) equals
five percent (5%) of Sixty Million Dollars ($60,000,000) multiplied by a
fraction the numerator of which is the number of days between June 30, 2000
and the Closing Date and the denominator of which is 365 (the "Purchase
Price Increase");
(k) In the event that (A) a SELLER at the time of the Closing has
in effect any property or casualty insurance covering the Assets or the
Business, and such insurance covers periods subsequent to the Closing, (B)
such SELLER cancels such insurance within ten (10) days following the
Closing, and (C) the policy does not provide for a pro rata refund of such
premiums paid by such SELLER, the purchase price shall be increased by an
amount equal to (i) minus (ii), where (i) equals the number of days from
the Closing Date to the end of the insurance policy period divided by 365
multiplied by the yearly premium paid, and (ii) equals the amount of the
insurance premium refunded or to be refunded to such SELLER with respect to
such policy;
{PAGE}
(l) An amount equal to the sum of the deposits referred to in
Section 3.2(d) below; and
(m) An amount equal to the replacement capital expenditures
incurred by SELLERS between June 30, 2000 and the date hereof (and other
replacement capital expenditures incurred prior to June 30, 2000) as set
forth on Schedule 3.1(m) hereof and hereby approved by BUYER, plus those
replacement capital expenditures incurred after the date hereof and prior
to the Closing that have been approved in writing by BUYER in advance of
the incurrence; and
the Purchase Price shall be decreased by an amount equal to the sum of the
following:
(w) An amount equal to the loss, if any, calculated pursuant to
Section 3.2(c) below; and
(x) An amount equal to the sum of the customer deposits held by all
SELLERS on the Closing Date as determined from the books and records of
SELLERS on the Closing Date (the "Customer Deposits"); and
(y) An amount equal to the sum of (i) bonuses assumed by BUYER
pursuant to Section 3.3 below and (ii) accrued expenses as of the Closing
Date, if any, that BUYER and SELLERS agree in writing shall be assumed by
BUYER, including the accrued expenses set forth in Schedule 3.1(y), but
excluding any unused vacation days; and
(z) (i) In the event that the promissory note negotiated as part of
that certain Covenant Not to Compete, dated August 11, 1998 by and among
Investors 300, Inc., Candace J. Heller and Ronald Heller (see Section 9.18
below) is assumed by BUYER, an amount equal to the unpaid principal and
accrued interest under such promissory note as of the Closing Date; and
(ii) In the event BUYER exercises its right to reject certain real estate
pursuant to Section 9.15 of this Agreement, the fair market value of any
real estate which is excluded from this sale as determined by the average
of the values established by two certified real estate appraisers, with one
appraiser designated by SELLER and one appraiser designated by BUYER.
3.2 Long-Term Contracts. The parties acknowledge that in the
-------------------
ordinary course of the Business of SELLER(s), SELLER(s) enter into contracts
with third parties providing for the sale of propane to such third parties over
an extended period of time and at a fixed per unit sales price ("Fixed Sales
Contracts"), and SELLER(s) enter into contracts with third parties providing for
the purchase of propane from third parties over an extended period of time at a
fixed per unit sales price ("Fixed Purchase Contracts"). BUYER agrees that at
the Closing it will assume all such Fixed Sales Contracts and Fixed Purchase
Contracts, subject to the following:
(a) With respect to such contracts entered into after the date
hereof, such contracts shall have been entered into by SELLER(s) in the
ordinary course of business consistent with past practices.
{PAGE}
(b) BUYER shall assume all Fixed Sales Contracts that have been
entered into by SELLERS prior to or following the date hereof with the
third parties set forth in Schedule 3.2(b), and the Fixed Sales Contracts
entered into by SELLERS with any other third parties that, in addition to
satisfying the provisions of clause (a) above, satisfy the creditworthiness
standards applied by BUYER in the ordinary course of its business.
(c) Any such Fixed Sales Contract shall be subject to BUYER
having offsetting Fixed Purchase Contracts (either assumed hereunder or
otherwise) and/or long positions of propane inventory that would result in
BUYER having no worse than a breakeven economic position upon BUYER's
assumption of such Fixed Sales Contract, and if BUYER would not be in such
economic position, then BUYER shall nevertheless assume such Fixed Sales
Contract but the Purchase Price shall be reduced by an amount equal to
BUYER's reasonably anticipated loss from such Fixed Sales Contract. In
determining such "reasonably anticipated loss," there shall be taken into
account the terms of such contracts, the transportation costs, the carrying
costs of any such propane inventory and the amount payable by BUYER under
Section 3.2(e) below for the offsetting Fixed Purchase Contract.
(d) No amount shall be payable by BUYER in connection with the
assumption by BUYER of any Fixed Sales Contract or any Fixed Purchase
Contract; provided, however, in the event a SELLER has made any deposit
with a counterparty to any Fixed Purchase Contract, any unapplied portion
of such deposit as of the time of Closing shall be paid by BUYER to such
SELLER as part of the Purchase Price; and provided, further, that with
respect to any Fixed Purchase Contract, BUYER agrees (i) to pay such
SELLER's amortized cost thereof that is traceable to the volume to be taken
under any such contract that is offset against volumes to be sold under any
Fixed Sales Contract assumed by BUYER under (c) above, and (ii) as to the
balance of such contract, to pay to such SELLER an amount equal to the
lower of such SELLER's amortized cost or the market value of such Fixed
Purchase Contract as of the Closing. Amortized cost of a Fixed Purchase
Contract shall be based upon industry accounting practice and in accordance
with GAAP. By way of example of the foregoing proviso, if there is a Fixed
Sales Contract for 1 million gallons of propane at $.50 per gallon and a
Fixed Purchase Contract for 1.5 million gallons of propane at $.45 per
gallon, then the purchase price for such Fixed Purchase Contract would be
(i) at such SELLER's cost for 1 million gallons, plus (ii) the lower of
such cost or the current market value for the remaining .5 million gallons.
(e) BUYER's agreement to assume any Fixed Sales Contract and any
Fixed Purchase Contract shall be subject to such SELLER obtaining any
consent of the third party to such contract that would be required to
permit the assignment of such contract to BUYER.
3.3 Employee Bonuses. SELLERS have in place a bonus program for
----------------
certain employees of SELLERS. At the time of the Closing, it is anticipated that
there will be bonuses that will have accrued but will not be payable or vested
under such program until a date subsequent to the Closing. Subject to the
provisions hereof, BUYER agrees to assume such bonus liability of SELLERS as
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