OR AGREE TO PERFORM OR
DISCHARGE, ANY LIABILITY: (I) ARISING BEFORE THE CLOSING DATE; (II) FOR ANY
OBLIGATION, COST OR EXPENSE WHICH SHALL BE BORNE BY THE RECEIVER UNDER THIS
AGREEMENT; (III) ARISING OUT OF OR RELATED TO THE WINDING UP OF CLEAIRE OR THE
FINAL ADMINISTRATION OR ITS RECEIVERSHIP ESTATE; (IV) ARISING OUT OF OR RELATED
TO ANY CONTRACTS ENTERED INTO PRIOR TO THE CLOSING DATE; (V) ARISING OUT OF OR
RELATED TO ANY THIRD PARTY CLAIMS AGAINST THE RECEIVER OR CLEAIRE, PENDING,
THREATENED, OR UNASSERTED; (VI) WHETHER NOW EXISTING OR HEREAFTER ARISING UNDER
ANY ENVIRONMENTAL LAWS AND ARISING OUT OF OR RELATED TO THE BUSINESS (INCLUDING,
WITHOUT LIMITATION, ANY LIABILITY FOR ADMINISTRATIVE OR CIVIL FINES OR PENALTIES
FOR VIOLATIONS OF ENVIRONMENTAL LAWS, OR REMEDIATION OR RESPONSE COSTS FOR
CONTAMINATION); (VII) FOR BROKERAGE FEES OF THE RECEIVER INCURRED ON BEHALF OF
CLEAIRE AND THE RECEIVERSHIP ESTATE; (VIII) WITH RESPECT TO THE WARN ACT, ANY
AND ALL COMPARABLE STATE LAW OBLIGATIONS, INCLUDING WITHOUT LIMITATION, THE
CALIFORNIA WARN ACT, AS AMENDED, CAL. LAB. CODE § 1400 ET SEQ. ("CAL WARN"), OR
ANY RULES OR REGULATIONS RELATING THERETO; (IX) RELATED TO ANY CURRENT OR FORMER
EMPLOYEES OR EXECUTIVES OF CLEAIRE, WHETHER FOR WAGES, VACATION PAY, PAYROLL
(INCLUDING PAYROLL TAXES), SEVERANCE, RETENTION, EMPLOYMENT, CHANGE-OF-CONTROL,
PENSION, RETIREMENT, EQUITY OR OTHER BENEFITS, AND WHETHER OR NOT ARISING UNDER
EMPLOYMENT AGREEMENTS, EXPRESS OR IMPLIED; (IX) ARISING OUT OF OR RELATED TO ANY
EMPLOYEE BENEFIT PLAN; (X) ARISING OUT OF ANY COMMISSIONS PAYABLE FROM THE SALE
PRIOR TO THE CLOSING DATE OF ANY CLEAIRE PRODUCTS, OR COMMISSIONS PAYABLE WITH
RESPECT TO THE HAWES PARTICIPATION DEFINED BELOW; OR (XI) FOR ANY TAXES OF
CLEAIRE OR THE RECEIVERSHIP ESTATE EXCEPT AS TO THE PURCHASER'S OBLIGATIONS TO
PAY TRANSFER TAXES PURSUANT TO SECTION 3.6.
2.
CONSIDERATION; DEPOSIT.
2.1
PURCHASE PRICE.
THE CONSIDERATION TO BE DELIVERED TO THE
RECEIVER, FOR THE BENEFIT OF THE RECEIVERSHIP ESTATE, FOR THE PURCHASED ASSETS
SHALL CONSIST OF THE SUM OF (A) $1,260,000 IN CASH (THE "CASH CONSIDERATION")
(B) THE HAWES PO GROSS PROFITS AND (C) THE DEPOSIT, AS DEFINED BELOW (TOGETHER,
THE "PURCHASE PRICE").
2.2
HAWES PARTICIPATION.
HAWES, A KOREAN COMPANY ("HAWES"), HAS
EXPRESSED AN INTEREST IN PURCHASING 100 UNITS OF SPECIFIED PRODUCTS, WITH AN
ANTICIPATED INVOICE PRICE OF $725,000 (THE "HAWES PARTICIPATION").
THE RECEIVER
SHALL HAVE SOLE AND ABSOLUTE DISCRETION AS TO WHETHER TO GO FORWARD WITH THE
HAWES PARTICIPATION AND SHALL MAKE SUCH DETERMINATION ON OR
3
BEFORE APRIL 3, 2013, AT 4:00 P.M. PACIFIC TIME.
IF THE RECEIVER DOES ELECT TO
GO FORWARD, THE PURCHASER AND THE RECEIVER SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO CAUSE HAWES TO ISSUE A FIRM PURCHASE ORDER FOR THOSE PRODUCTS AND THE
PROCEEDS FROM SUCH PURCHASER ORDER SHALL BE ALLOCATED AS FOLLOWS:
total invoice
$725,000
new materials (estimate; will be based on Purchaser's invoicing of actual costs)
$(200,000)
direct labor (estimate; will be based on Purchaser's invoicing of actual cost,
including fully-burdened payroll)
$(50,000)
commissions and other direct costs
$(50,000)
Overhead
$(25,000)
Gross profit (estimate)
$400,000