WHEREAS, Asset Seller and dck-ecc Pacific Guam, LLC, a Delaware limited liability company (the Acquired Entity) are, among other things, engaged in the business of providing general contracting, subcontracting and other construction services in Guam and in certain other Pacific islands (the Business);
WHEREAS, Equity Seller owns a 55% membership interest in dck-ecc Pacific Guam (the Acquired Equity Interests);
WHEREAS, Equity Seller also indirectly owns one hundred percent (100%) of the outstanding membership interest of Asset Seller, through its wholly owned subsidiary, dck pacific region;
WHEREAS, upon the terms and subject to the conditions set forth herein, (i) Equity Seller desires to sell to Purchaser, and Purchaser desires to purchase from Equity Seller, the Acquired Equity Interests, and (ii) Asset Seller desires to sell to Purchaser, and Purchaser desires to purchase from Asset Seller, certain of its assets, properties and business; and
WHEREAS, (i) to induce the Purchaser Parties to enter into this Agreement, Seller Parent has agreed to enter into this Agreement as a Seller, and (ii) to induce Sellers to enter into this Agreement, Pernix has entered into this Agreement as a Purchaser Party.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1.1
Definitions
As used herein, the following terms shall have the following meanings:
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Accrued Vacation Amount means the amount of accrued but unused vacation for each of the employees set forth on Schedule 8.2(a) but only to the extent of the dollar amounts set forth on such schedule.
Acquired Assets has the meaning specified in Section 2.1.
Acquired Business means, collectively, the Acquired Assets and the Acquired Entity.
Acquired Contracts has the meaning specified in Section 3.1(b).
Acquired Entity has the meaning specified in the Recitals hereto.
Acquired Equity Interests has the meaning specified in the Recitals hereto.
Acquisition Proposal has the meaning specified in Section 6.3(a).
Action means any claim, action, suit, audit, assessment, arbitration, investigation or proceeding by or before any Governmental Authority.
Additional Projects has the meaning specified in Section 3.1(b).
Affiliate means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise; provided that such Person shall be deemed an Affiliate for only so long as such control exists. For purposes of this definition, the term control means the possession, direct or indirect, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
Agreement has the meaning specified in the Preamble hereto.
Amendment to the JV Agreement means the Amended and Restated Operating Agreement of the Acquired Entity substantially in the form attached hereto as Exhibit C.
Asset Seller has the meaning specified in the Preamble hereto.
Assumed Benefit Plan has the meaning specified in Section 2.3(g).
Assumption Agreement means the Assumption Agreement in the form of Exhibit F.
Basket Amount has the meaning specified in Section 11.4(a).
Bill of Sale means the Bill of Sale in the form of Exhibit E.
Business has the meaning specified in the Recitals hereto.
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Business Day means a day other than a Saturday, Sunday or other day on which commercial banks in Chicago, Illinois are authorized or required by Law to close.
Cap has the meaning specified in Section 11.4(a).
Cash and Cash Equivalents as of any date means the cash and cash equivalents other than deposits and similar restricted cash either held by (x) Asset Seller with respect to any Acquired Asset or (y) by any third party in connection with any Acquired Asset.
Closing has the meaning specified in Section 3.2.
Closing Date has the meaning specified in Section 3.2.
Code means the Internal Revenue Code of 1986, as amended, and the Guam Territorial Income Tax.
Company Service means any matters related to or arising out of outstanding contractual warranties and guarantees on any of the construction projects or jobs completed by or service provided by the Acquired Entity for itself, a customer or a third party.
Confidentiality Agreement has the meaning specified in Section 13.10.
Contract means any legally-binding contract, agreement, subcontract, lease or purchase order.
Damages means all losses, liabilities, judgments, awards, penalties, fines, amounts paid in settlement, damages and other costs and expenses, including reasonable attorneys fees, costs and expenses incurred in connection with any Action or in enforcing the rights of indemnification hereunder and the costs of pursuing any insurance provider.
dck pacific region has the meaning specified in the Preamble hereto.
Defense Costs has the meaning specified in Section 11.7.
Delayed Payment has the meaning specified in Section 3.1(a).
Direct Claim has the meaning specified in Section 11.6(c).
ECC has the meaning specified in Section 10.2(j).
ECC Release and Waiver has the meaning specified in Section 10.2(j).
E.O. 11246 has the meaning specified in Section 4.13(e).
Employee Liabilities shall mean all wages, salaries, bonuses, commissions, earned or accrued vacation, holiday or sick pay, severance pay (if any), any contributions required or costs associated with any employee welfare benefit plan as defined by Section 3(1) of ERISA, any contributions required or costs associated with any employee pension benefit plan as defined by Section 3(2) of ERISA, any contributions required or costs associated with any non-
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qualified employee benefit plan or any other Employee Plans (whether covered under ERISA or not), federal, state and/or local payroll taxes, unemployment insurance costs, any contributions required or costs associated with workers compensation liabilities, and any claims made by any employee arising out of or connected with his or her employment or the termination thereof, and any claims for medical, dental, life insurance, health accident, disability benefits or workers compensation brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof.
Employee Plans shall mean any plan, arrangement, program, agreement or commitment providing for employee benefit insurance coverage (including any self-insured arrangements), workers compensation, disability benefits, supplemental unemployment benefits, vacation benefits, retirement benefits, life, health, disability or accident benefits (including any voluntary employees beneficiary association as defined in Section 501(c)(9) of the Code providing for the same or other benefits) or for deferred compensation, profit-sharing, bonuses, stock options, stock appreciation rights, stock purchases or other forms of incentive compensation or post-retirement insurance, compensation or benefits.
Environmental Claim means any Action, Governmental Order, Lien, fine, penalty, or, as to each, any settlement or judgment arising therefrom, by or from any Person alleging liability of whatever kind or nature (including liability or responsibility for the costs of enforcement proceedings, investigations, cleanup, governmental response, removal or remediation, natural resources damages, property damages, personal injuries, medical monitoring, penalties, contribution, indemnification and injunctive relief) arising out of, based on or resulting from: (a) the presence, Release of, or exposure to, any Hazardous Materials; or (b) any actual or alleged non-compliance with any Environmental Law or term or condition of any Environmental Permit.
Environmental Laws means any applicable Law, and any Governmental Order or binding agreement with any Governmental Authority: (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Material.
Environmental Notice means any written directive, notice of violation or infraction, or notice respecting any Environmental Claim relating to actual or alleged non-compliance with any Environmental Law or any term or condition of any Environmental Permit.
Environmental Permit means any Permit, letter, clearance, consent, waiver, closure, exemption, decision or other action required under or issued, granted, given, authorized by or made pursuant to Environmental Law.
Equity Seller has the meaning specified in the Preamble hereto.
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ERISA means the Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate has the meaning specified in Section 4.12(b).
Financial Statements has the meaning specified in Section 4.6.
GAAP means United States generally accepted accounting principles.
Good Faith Deposit has the meaning specified in Section 3.1(a).
Government Contract has the meaning specified in Section 4.11(c).
Government Official means any employee or officer of a government of a country, territory, state or region, including any federal, territorial, regional or local government or department, agency, enterprise owned or controlled by such government, any official of a political party, any official or employee of a public international organization, any Person acting in an official capacity for, or on behalf of, such entities, an any candidate for political office.
Governmental Authority means any federal, territorial, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency, instrumentality, court, tribunal, arbitrator or arbitral body.
Governmental Order means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any Governmental Authority.
Hazardous Material means any (i) pollutant, contaminant or chemical, (ii) industrial, solid, liquid or gaseous toxic or hazardous substance, material or waste, (iii) petroleum or any fraction or product thereof, (iv) asbestos or asbestos-containing material, (v) polychlorinated biphenyl, or (vi) other substance, material or waste, in each case, that is regulated under any Environmental Law.
Indebtedness means (i) any obligation for borrowed money, including, without limitation, any obligation for accrued and unpaid interest thereon and any prepayment or other penalties or premiums; (ii) any capitalized lease obligations (as determined in accordance with GAAP); (iii) any reimbursement obligations in respect of letters of credit; and (iv) all guarantees issued in respect of obligations of any other Person of the type described in clauses (i) through (iii).
Indemnified Party has the meaning specified in Section 11.5.
Indemnified Partys Share has the meaning specified in Section 11.7.
Indemnified Party Claim Defense Cap has the meaning specified in Section 11.7.
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Indemnifying Party has the meaning specified in Section 11.5.
Intellectual Property means any of the following: (i) patents and patent applications; (ii) registered and unregistered trademarks, service marks and trade names, pending trademark and service mark registration applications and intent-to-use registrations or similar reservations of marks; (iii) registered and unregistered copyrights and applications for registration of copyrights; (iv) internet domain names; (v) trade secrets, Know-How and other similar proprietary rights; and (vi) rights in computer software (excluding unmodified, commercially-available software).
Interim Financial Statements has the meaning specified in Section 4.6.
Know-How means specialized knowledge (including product knowledge and use and application knowledge), formulae, product formulations, processes, designs, specifications, quality control, procedures, manufacturing, engineering and other drawings, computer databases (including, but not limited to, estimates databases, supplier databases and subcontractor databases) and software, technology, other intangibles, technical information, safety information, engineering data and design and engineering specifications, research records, technical expertise, research data, trade secrets, patterns, market surveys and all promotional literature, customer and supplier lists and similar data.
Law means any statute, law, ordinance, rule, regulation or Governmental Order, in each case, of any Governmental Authority.
Leased Real Property means all real property leased by the Acquired Entity or Asset Seller.
Leasing Agreement has the meaning specified in Section 3.2(b)(v).
Liberty means Liberty Mutual Insurance Company.
Lien means any mortgage, deed of trust, pledge, hypothecation, encumbrance, security interest or other lien of any kind.
Management Board has the meaning specified in Section 7.3.
Management Board Designees has the meaning specified in Section 7.3.
Material Adverse Effect means a material adverse effect on (a) the Acquired Assets, (b) the business, results of operations or financial condition of the Acquired Entity, or (c) the ability of any Seller to consummate the transactions contemplated hereby on a timely basis; provided, however, that Material Adverse Effect shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; and (ii) any changes in financial or securities markets in general.
Material Contracts has the meaning specified in Section 4.11.
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Non-P109 Projects means the Acquired Entitys projects existing on or prior to the Closing Date, other than the P109 Project.
Organizational Documents means, with respect to any particular entity, (i) if a corporation, the articles or certificate of incorporation and the bylaws; (ii) if a general partnership, the partnership agreement and any statement of partnership; (iii) if a limited partnership, the limited partnership agreement and the articles or certificate of limited partnership; (iv) if a limited liability company, the articles of organization or certificate of formation and operating agreement, limited liability company agreement, or company agreement; (v) if another type of entity, any other charter or similar document adopted or filed in connection with the creation, formation or organization of the entity; and (vi) any amendment or supplement to any of the foregoing.
P109 Project means the Acquired Entitys project involving the construction of a P109 Aircraft Maintenance Hangar at Andersen Air Force Base in Guam.
Permits means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained, or required to be obtained, from Governmental Authorities.
Permitted Intercompany Debt means all Indebtedness owed for the Non P-109 Projects to the Acquired Entity by Sellers or any of their respective Affiliates.
Permitted Liens means (i) mechanics, materialmens and similar Liens with respect to any amounts not yet due and payable, (ii) Liens for Taxes not yet due and payable, and (iii) other Liens arising in the ordinary course of business that are not incurred in connection with the borrowing of money, in each case as set forth on Schedule 1.1(b).
Pernix has the meaning specified in the Preamble hereto.
Person means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, trust, Governmental Authority or other entity of any kind.
Post-Closing Tax Period means any taxable period beginning after the Closing Date.
Pre-Closing Tax Period means any taxable period ending on or before the Closing Date.
Purchase Price means One Million Eight Hundred and Twenty Five Thousand U.S. Dollars ($1,825,000) in cash with the specific understanding that the Equity Sellers portion of the bond premium refund from Liberty on the P-109 Bonds shall be refunded directly to and maintained by Equity Seller.
Purchaser has the meaning specified in the Preamble hereto.
Purchaser Cure Period has the meaning specified in Section 12.1(d).
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Purchaser Indemnitees has the meaning specified in Section 11.2.
Purchaser Parties has the meaning specified in the Preamble hereto.
REA has the meaning specified in Section 3.4.
Related Party means (i) any Affiliate of a Person, (ii) any past or present member, manager, director, officer, executive or management-level employee of a Person, any shareholder, partner or member of any Affiliate of a Person, or (iii) any Affiliate, spouse or child of any Person listed in (i) or (ii).
Release means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, without limitation, ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture).
Representative means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.
Restricted Business means any general contracting, subcontracting or other construction services pursuant to a Government Contract or for or on benefit of any Governmental Authority, including but not limited to design-build, program management, construction management-at-risk and general construction services, or construction consulting services.
Restricted Period has the meaning set forth in Section 6.8(a).
Restricted Territory means Guam, Saipan, and Tinian.
Retained P109 Cash has the meaning specified in Section 4.6.
Section 503 has the meaning specified in Section 4.13(e).
Section 754 Election has the meaning specified in Section 4.14(j).
Seller Cure Period has the meaning specified in Section 12.1(c).
Seller Indemnitees has the meaning specified in Section 11.3.
Seller Parent has the meaning specified in the Preamble hereto.
Sellers has the meaning specified in the Preamble hereto.
Straddle Period means any taxable period that includes, but does not end on, the Closing Date.
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Subcontract means the Subcontract Agreement by and between Equity Seller and the Acquired Entity in the form of Exhibit D.
Subsidiary means, with respect to a Person, a corporation, limited liability company or other entity of which 50% or more of the voting power of the equity securities or equity interests is owned, directly or indirectly, by such Person.
Surety Bonds has the meaning specified in Section 4.11(f).
Taxes means all federal, state, local, foreign and other taxes (including withholding taxes), customs, duties, imposts and other similar governmental charges of any kind or nature whatsoever, together with any interest and any penalties, additions or additional amounts with respect thereto.
Tax Returns means any return, declaration, report, statement, information statement or other document filed or required to be filed with respect to Taxes, including any claims for refunds of Taxes, any information returns and any amendments or supplements of any of the foregoing.
Terminating Purchaser Breach has the meaning specified in Section 12.1(d).
Terminating Seller Breach has the meaning specified in Section 12.1(c).
Termination Date has the meaning specified in Section 12.1(c).
Third Party Claim has the meaning specified in Section 11.6(a).
Transfer Taxes has the meaning specified in Section 8.3(a).
Transferred Employee has the meaning specified in Section 8.2(a).
Transition Services Agreement means the Transition Services Agreement in the form of Exhibit A.
Union has the meaning specified in Section 4.13(b).
Vehicles has the meaning specified in Section 2.2(a).
VEVRAA has the meaning specified in Section 4.13(e).
WARN means the Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101 2109, and the regulations thereunder.
WARN Liability means any liability under the WARN Act or any similar applicable Law that may result from an Employment Loss, as defined by 29 U.S.C. sect. 2101(a)(6).
Year-End Financial Statements has the meaning specified in Section 4.6.
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Zurich means Zurich American Insurance Company.
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