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Document Preview Asset Purchase Agreement |
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Title: |
Asset Purchase Agreement |
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Entities: |
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Date: |
2004 |
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Size: |
Preview shows 36KB of 106KB total |
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Price: |
$46 |
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ID: |
#879119 |
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Start of Preview |
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| Page | |
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ARTICLE I PURCHASE AND SALE OF PURCHASED ASSETS |
1 |
| 1.1 Basic Transaction | 1 |
| 1.2 Assumed Liabilities | 2 |
| 1.3 Physical Inventory | 3 |
| 1.4 Examination of Cranberry Inventory | 3 |
ARTICLE II BASIC TRANSACTION |
3 |
| 2.1 Payment of Purchase Price | 3 |
| 2.2 Closing | 5 |
| 2.3 Allocation of Purchase Price | 5 |
| 2.4 Closing Deliveries | 6 |
| 2.5 Real Estate Matters | 7 |
| 2.6 No Representations | 7 |
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
8 |
| 3.1 Organization and Qualification | 8 |
| 3.2 Authority | 8 |
| 3.3 No Violation | 9 |
| 3.4 Title to Purchased Assets | 9 |
| 3.5 Broker's Fees | 9 |
| 3.6 Legal Compliance | 9 |
| 3.7 Tax Matters | 10 |
| 3.8 Real Property | 10 |
| 3.9 Contracts | 11 |
| 3.10 Powers of Attorney | 12 |
| 3.11 Litigation | 12 |
| 3.12 Employees | 12 |
| 3.13 Inventory | 12 |
| 3.14 Purchased Assets | 13 |
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER |
13 |
| 4.1 Organization and Qualification | 13 |
| 4.2 Authority | 13 |
| 4.3 No Violation | 14 |
| 4.4 Finder's Fees | 14 |
| 4.5 Litigation | 14 |
| 4.6 Company Stock | 14 |
ARTICLE V AGREEMENTS |
14 |
| 5.1 Confidentiality | 14 |
| 5.2 Customer List | 15 |
| 5.3 Public Disclosure | 15 |
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| Page | |
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5.4 Further Actions; Filings |
15 |
| 5.5 Employees; Employment and Benefit Arrangements | 16 |
| 5.6 Right to Occupy Office Building | 17 |
| 5.7 Proration of Real Property Expenses | 17 |
ARTICLE VI CONDITIONS TO CLOSING |
18 |
| 6.1 Conditions to Each Party's Closing Obligation | 18 |
| 6.2 Additional Conditions to Obligations of the Company | 18 |
| 6.3 Additional Conditions to the Obligations of Buyer | 19 |
ARTICLE VII DEFINED TERMS |
19 |
ARTICLE VIII INDEMNIFICATION |
23 |
| 8.1 Company's Indemnity | 23 |
| 8.2 Buyer's Indemnity | 24 |
| 8.3 Provisions Regarding Indemnities | 24 |
ARTICLE IX CONFIDENTIALITY |
28 |
| 9.1 Definition of Confidential Information | 28 |
| 9.2 Use of Confidential Information | 29 |
| 9.3 Confidentiality | 29 |
| 9.4 Legal Requirement to Disclose | 29 |
ARTICLE X GENERAL PROVISIONS |
30 |
| 10.1 Notices | 30 |
| 10.2 Interpretation | 31 |
| 10.3 Counterparts | 31 |
| 10.4 Entire Agreement; Nonassignability; Parties in Interest | 31 |
| 10.5 Expenses | 31 |
| 10.6 Tax Matters | 32 |
| 10.7 Amendment | 32 |
| 10.8 Severability | 32 |
| 10.9 Remedies Cumulative | 32 |
| 10.10 Governing Law; Waiver of Jury Trial | 32 |
| 10.11 Rules of Construction | 32 |
| 10.12 No Right of Offset | 33 |
| 10.13 Further Assurances | 33 |
| 10.14 Deliveries to Buyer | 33 |
-ii-
EXHIBITS
| Exhibit A | Legal description of Processing Plant and Storage Facility |
| Exhibit B | Legal description of the Office Building |
| Exhibit C | Form of Bill of Sale -- Non-Qualified Cranberry Inventory |
| Exhibit D | Form of Escrow Agreement |
| Exhibit E | Form of Special Warranty Deed |
| Exhibit F | Form of Bill of Sale -- Purchased Assets |
| Exhibit G | Form of Assignment and Assumption Agreement for Assumed Liabilities |
| Exhibit H | Form of Opinion from Buyer's Counsel |
| Exhibit I | Form of Opinion from Company's Counsel |
| Exhibit J | Form of Office Building Lease Agreement |
| Exhibit K | Form of Toll Processing Agreement |
| Exhibit L | Form of Laboratory Lease |
| Exhibit M | Form of Stipulation |
| Exhibit N | Form of Release |
| Exhibit O | Form of Purchased Owned Real Property |
| Exhibit P | Form of Processing Plant Lease |
-iii-
This ASSET PURCHASE AGREEMENT (the Agreement) is made and entered into as of September 23, 2004, by and between Ocean Spray Cranberries, Inc., a Delaware corporation (Buyer), and Northland Cranberries, Inc., a Wisconsin corporation (the Company).
RECITALS
WHEREAS, subject to the terms and conditions set forth herein, Buyer desires to purchase from the Company (subject to the assumption of certain liabilities), and the Company desires to sell to Buyer (subject to the assumption of certain liabilities), certain of the assets of the Company for the consideration set forth herein.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Basic Transaction.
(a) Purchased Assets. On the terms and subject to the conditions set forth in this Agreement, Buyer shall purchase from the Company, and the Company shall sell, convey, assign, transfer and deliver to Buyer on the Closing Date, all of the Companys right, title and interest in the following (the Purchased Assets):
(i) the processing plant (the Processing Plant) and storage facility (the Storage Facility) located at 3130 Industrial Street, Wisconsin Rapids, WI (including the equipment and office supplies located thereon, other than the equipment and office supplies set forth on Section 1.1(b) of the Company Disclosure Schedule), as legally described on Exhibit A attached hereto;
(ii) the office building and workshop (the Office Building) located at 2930 Industrial Street, Wisconsin Rapids, WI (excluding all equipment, furniture, supplies and other personal property located thereon, other than the equipment, furniture, supplies and other personal property set forth on Section 1.1(a)(ii) of the Company Disclosure Schedule), as legally described on Exhibit B attached hereto;
(iii) all cranberry inventory (in frozen fruit form) owned by the Company (excluding (A) the Holdback Inventory, (B) the Excluded Inventory and (C) any of the crop harvested or to be harvested in the fall of 2004 located on any of the Companys marshes or to be delivered from any of the Companys contract growers);
(iv) the contracts set forth on Section 1.1(a)(iv) of the Company Disclosure Schedule (the Purchased Contracts);
(v) the personal property set forth on Section 1.1(a)(v) of the Company Disclosure Schedule;
(vi) originals or copies of all books and records that relate primarily to the Purchased Assets;
(vii) the customer list consisting of those customers of the Business which are parties to the open purchase orders listed on Section 1.2(a) of the Company Disclosure Schedule and those customers which have had open purchase orders with the Company during the two previous fiscal years (the Customer List); and
(viii) all assignable permits, licenses or certifications that relate primarily to the Purchased Assets.
(b) Excluded Assets. Notwithstanding the foregoing, all properties, assets and rights of the Company other than the Purchased Assets (the Excluded Assets) are expressly excluded from the purchase and sale contemplated hereby and, as such, are not included in the Purchased Assets, including, but not limited to, (i) all of the marshes owned by the Company (including the improvements and equipment located thereon), (ii) the Holdback Inventory and the Excluded Inventory, (iii) all trade names, trademarks or service marks owned or used by the Company and (iv) all of the equipment, office supplies and personal property listed on Section 1.1(b) of the Company Disclosure Schedule.
1.2 Assumed Liabilities. Upon the terms and subject to the conditions of this Agreement, Buyer agrees to assume all of the following liabilities (Assumed Liabilities):
(a) all liabilities and obligations associated with open purchase orders and contracts with respect to sales of non-branded cranberry products, which open purchase orders and contracts are set forth on Section 1.2(a) of the Company Disclosure Schedule;
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