WITH
ANY LEGAL REQUIREMENT OR ORDER;
(H)
ANY LIABILITY OF SELLER ARISING OUT OF OR RELATED TO ANY
PROCEEDING AGAINST IT OR ANY PROCEEDING RELATING TO THE PURCHASED BUSINESS THAT
WAS ASSERTED PRIOR TO THE CLOSING DATE OR RELATES TO ACTIONS OF SELLER;
(I)
ANY LIABILITY OF SELLER RESULTING FROM ENTERING INTO, PERFORMING
ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT OR ANY OF THE ANCILLARY AGREEMENTS OR
CONSUMMATING THE TRANSACTIONS (INCLUDING WITHOUT LIMITATION ANY LIABILITY OF
SELLER PURSUANT TO ARTICLE VII (INDEMNIFICATION; REMEDIES));
(J)
ANY LIABILITY TO THE EXTENT RELATED TO (I) ANY RETAINED BUSINESS
OR (II) ANY EXCLUDED ASSET;
(K)
ANY LIABILITY OF SELLER FOR INDEBTEDNESS OUTSTANDING AS OF THE
CLOSING DATE OTHER THAN ONLY INDEBTEDNESS INCLUDED IN THE ASSUMED LIABILITIES;
(L)
ANY LIABILITY ARISING BEFORE THE CLOSING DATE RELATING TO ANY
FACILITIES OTHER THAN AN ASSUMED ENVIRONMENTAL LIABILITY;
(M)
ANY LIABILITY OF SELLER TO ANY OF ITS AFFILIATES;
4
(N)
ANY LIABILITY RELATED TO ANY MECHANIC'S, MATERIALMEN'S OR SIMILAR
LIENS ARISING OUT OF ACTIONS, EVENTS OR OCCURRENCES TAKING PLACE PRIOR TO THE
CLOSING DATE; AND
(O)
ANY LIABILITY ARISING OUT OF OR RELATED TO SELLER'S ACTIONS PRIOR
TO THE CLOSING DATE TO TERMINATE ANY AGREEMENTS RELATED TO THE PURCHASED
BUSINESS.
For the avoidance of doubt, nothing in this Agreement shall affect Seller's and
its Affiliates' liability, if any, to any Person other than Buyer and any Seller
Indemnified Party for all Excluded Liabilities.
1.4
CONSIDERATION.
(A)
AGGREGATE PURCHASE PRICE.
UPON THE TERMS AND SUBJECT TO THE
CONDITIONS SET FORTH HEREIN, AT THE CLOSING BUYER SHALL PURCHASE THE PURCHASED
ASSETS FROM SELLER FOR THE AGGREGATE CONSIDERATION OF ONE HUNDRED TWENTY-ONE
MILLION DOLLARS ($121,000,000) PLUS THE CAPITAL EXPENDITURES BALANCE (SUCH SUM,
THE "AGGREGATE PURCHASE PRICE").
THE AGGREGATE PURCHASE PRICE SHALL BE PAYABLE
AS SET FORTH IN SECTION 1.4(B) BELOW AND SHALL BE SUBJECT TO ADJUSTMENT AS SET
FORTH IN SECTION 1.5.
(B)
THE AGGREGATE PURCHASE PRICE SHALL BE PAYABLE ON THE CLOSING DATE
AS FOLLOWS:
(I)
BUYER SHALL DELIVER, OR CAUSE TO BE DELIVERED, TO SELLER A NUMBER
OF SHARES OF BUYER COMMON STOCK (THE "BUYER COMMON SHARES") EQUAL TO THE
QUOTIENT (ROUNDED DOWNWARD TO THE NEAREST WHOLE NUMBER) OBTAINED BY DIVIDING (X)
NINE MILLION FIVE HUNDRED THOUSAND DOLLARS ($9,500,000) (THE "BUYER COMMON SHARE
AMOUNT") BY (Y) THE AVERAGE CLOSING PRICE PER SHARE OF BUYER COMMON STOCK, AS
QUOTED ON AMEX, FOR THE PERIOD OF TWENTY (20) TRADING DAYS ENDING IMMEDIATELY
PRIOR TO THE EARLIER OF (A) THE DATE OF THIS AGREEMENT OR (B) BUYER'S FIRST
PUBLIC ANNOUNCEMENT OR DISCLOSURE OF THE TRANSACTIONS, WHETHER THROUGH THE
ISSUANCE OF A PRESS RELEASE, THE FILING OF A DOCUMENT WITH THE SEC, OR
OTHERWISE;
(II)
BUYER SHALL ASSUME THE ASSUMED LIABILITIES; AND
(III)
BUYER SHALL PAY, BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS
TO AN ACCOUNT DESIGNATED BY SELLER, AN AMOUNT (SUCH AMOUNT, THE "CLOSING
PAYMENT") DETERMINED PURSUANT TO THE FOLLOWING FORMULA: AGGREGATE PURCHASE PRICE
MINUS THE SUM OF (X) THE BUYER COMMON SHARE AMOUNT PLUS (Y) THE SELLER LOAN
BALANCE (INCLUDING, WITHOUT