EXHIBIT 10.6
ASSET PURCHASE AGREEMENT
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This is an Asset Purchase Agreement dated as of December 18, 1997 (this
"Agreement"), between (i) MINING TECHNOLOGIES, INC. ("Purchaser"), a Kentucky
corporation and a wholly owned subsidiary of AEI HOLDING COMPANY, INC.
("Holdco"), a Delaware corporation, and (ii) XXXXXXXXX ENTERPRISES, INC., a
Kentucky corporation ("Seller").
RECITALS
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A. Seller is engaged in the business of manufacturing coal mining
equipment.
B. Seller wishes to sell, and Purchaser wishes to purchase, upon the
terms and conditions set forth in this Agreement, Seller's intellectual property
and certain other assets owned by Seller.
NOW, THEREFORE, in consideration of the mutual benefits and covenants
contained herein, and subject to the terms and conditions set forth herein, the
Parties agree as follows:
Article 1
Definitions
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1.1 Definitions. As used in this Agreement, the following terms shall
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have the following meanings:
(a) "Acquired Assets" shall have the meaning given in Section 2.1(a).
(b) "Acquisition Documents" shall mean this Agreement and the Other
Agreements, collectively.
(c) "Affiliate" shall mean (i) a Person that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is
controlled by a Person that controls, a Party to this Agreement; (ii) any trust
or estate in which a Party to this Agreement has a beneficial interest or as to
which a Party to this Agreement serves as a trustee or in another fiduciary
capacity.
(d) "Aggregate Basket" shall have the meaning given in Section 10.4.
(e) "Asset Leases" shall have the meaning given in Section 3.4.
(f) "Assignment of Contracts" shall mean the Assignment of Contracts,
substantially in the form attached hereto as Annex 1.1(f), pursuant to which
Seller shall assign to Purchaser the contracts listed on Schedule 2.1(a)(2).
(g) "Assumed Liabilities" shall have the meaning given in Section
2.4(a).
(h) "Xxxx of Sale" shall mean the Xxxx of Sale, substantially in the
form attached hereto as Annex 1.1(h), pursuant to which Seller shall transfer
the Acquired Assets to Purchaser.
(i) "Business Days" shall have the meaning given in Section 1.3(h).
(j) "Charges" shall have the meaning given in Section 3.4.
(k) "Closing" shall mean the consummation of the transactions
contemplated in this Agreement in accordance with the provisions of Article 9.
(l) "Closing Date" shall mean January 2, 1998, or such other date to
which the Parties may mutually agree.
(m) "Deed" shall mean the General Warranty Deed substantially in the
form attached hereto as Annex 1.1(m), pursuant to which Seller shall convey to
Purchaser the parcels of Real Property that are listed on Schedule 2.1(a)(3).
(n) "DOJ" shall mean the United States Department of Justice.
(o) "Environmental Laws "shall have the meaning given in Section
3.11.
(p) "FTC" shall mean the United States Federal Trade Commission.
(q) "Guaranty Agreement" shall have the meaning given in Section 6.5.
(r) "Hazardous Material" shall have the meaning given in Section
3.11.
(s) "HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Act, as amended.
(t) "Intellectual Property" shall mean trade names, trademarks,
service marks, copyrights, pending or issued registrations for any of the
foregoing, patents and patent applications, unpatented inventions, trade secrets
and other confidential or proprietary information, computer programs, processes,
formulas and methods.
(u) "Leased Tangible Assets" shall have the meaning given in Section
3.4.
(v) "Liabilities" shall mean all accounts payable, notes payable,
liabilities, commitments, indebtedness or obligations of any kind whatsoever,
whether absolute, accrued, contingent, matured or unmatured, direct or indirect,
known or unknown, of Seller to which any of the Acquired Assets are subject.
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(w) "Line of Credit" shall mean that line of credit established by
NationsBank of Texas, N.A. on behalf of Holdco, pursuant to the terms of that
certain Credit Agreement dated November 11, 1997.
(x) "Loss" shall have the meaning given in Section 10.2.
(y) "Material" (whether or not capitalized) shall include any matter
which might influence a reasonable purchaser's decision to consummate the
transactions contemplated herein.
(z) "Non-Compete Agreement" shall mean the Non-Competition Agreement,
in the form attached hereto as Annex 1.1(z), to be entered into by Purchaser,
Seller, and Xxxxx Xxxxxxxxx at the Closing.
(aa) "Notices" shall have the meaning given in Section 12.1.
(bb) "Other Agreements" shall mean the Assignment of Contracts, the
Xxxx of Sale, the Guaranty Agreement, the Deed, the Non-Compete Agreement and
all other agreements, certificates, opinions, instruments or documents
contemplated by, required by or referred to in, this Agreement for the
consummation of the transactions contemplated hereby.
(cc) "Owned Tangible Assets" shall have the meaning given in Section
3.4.
(dd) "Parties" shall mean Purchaser and Seller, collectively.
(ee) "Person" shall mean any person, firm, trust, partnership,
corporation or other business entity.
(ff) "Purchase Price" shall have the meaning given in Section 2.2.
(gg) "Real Property" shall have the meaning given in Section
2.1(a)(3).
(hh) "Rules" shall have the meaning given in Section 11.4.
(ii) "Seller's Intellectual Property" shall have the meaning given in
Section 3.7.
(jj) "Senior Notes" shall mean the Senior Notes issued by Holdco
pursuant to the terms of that certain Indenture, dated November 12, 1997, among
Holdco, Tennessee Mining, Inc., Xxxxxxxxx Mining, Inc., Xxxxx-Xxxxx Co., Inc.
and IBJ Xxxxxxxx Bank & Trust Company.
(kk) "Single Event Basket" shall have the meaning given in Section
10.4.
(ll) "Tangible Assets" shall mean the Leased Tangible Assets and the
Owned Tangible Assets, collectively.
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(mm) "Transferred Employees" shall have the meaning given in Section
2.7.
(nn) "WARN Act" shall have the meaning given in Section 2.7.
1.2 Additional Terms. Other capitalized terms used in this Agreement but
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not defined in Section 1.1 above shall have the meanings ascribed to them
wherever such terms first appear in this Agreement, or, if no meanings are so
ascribed, the meanings customarily associated with such terms in the coal mining
industry.
1.3 Rules of Interpretation.
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(a) The singular includes the plural and the plural includes the
singular.
(b) The word "or" is not exclusive.
(c) A reference to a Person includes its permitted successors and
permitted assigns.
(d) The words "include," "includes" and "including" are not limiting.
(e) A reference in a document to an Article, Section, Exhibit,
Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex
or Appendix of such document unless otherwise indicated. Exhibits, Schedules,
Annexes or Appendices to any document shall be deemed incorporated by reference
in such document.
(f) References to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) shall include
all documents, instruments or agreements issued or executed in replacement
thereof, and (c) shall mean such document, instrument or agreement, or
replacement or predecessor thereto, as amended, modified and supplemented from
time to time and in effect at any given time.
(g) The words "hereof," "herein" and "hereunder" and words of similar
import when used in any document shall refer to such document as a whole and not
to any particular provision of such document.
(h) References to "days" shall mean calendar days, unless the term
"Business Days" shall be used. "Business Days" shall mean all days other than
any Saturday, Sunday or legal holiday in Ashland, Kentucky. References to a
time of day shall mean such time in Ashland, Kentucky.
(i) The Acquisition Documents are the result of negotiations among,
and have been reviewed by, Purchaser and Seller. Accordingly, the Acquisition
Documents shall be deemed to be the product of all Parties thereto, and no
ambiguity shall be construed in favor of or against any Party.
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Article 2
Purchase and Sale
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2.1 Purchase of the Assets.
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(a) Acquired Assets. Subject to the terms and conditions of this
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Agreement, Seller hereby agrees to sell, transfer and deliver to Purchaser, and
Purchaser hereby agrees to purchase the following assets (collectively, the
"Acquired Assets"): (1) the assets listed in Schedule 2.1(a)(1); (2) all right,
title and interest of Seller under the contracts listed on Schedule 2.1(a)(2);
(3) the real property described in Schedule 2.1(a)(3) (the "Real Property"); (4)
Seller's Intellectual Property listed on Schedule 2.1(a)(4); and (5) any of the
following assets (insofar as they are a part of Seller's Mining Technologies
Division) produced or acquired after the date of this Agreement and before the
Closing Date: (i) production fees (arising from contract mining arrangements)
that have been earned, but not billed; (ii) net accounts receivable not
transferred under the contracts listed on Schedule 2.1(a)(2); (iii) parts
inventory; (iv) shop work-in-process; and (v) prepayments that are subject to
legally effectual transfer to Purchaser.
(b) Excluded Assets. Notwithstanding any other provision of this
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Agreement to the contrary, the Acquired Assets shall not include any assets,
properties, rights or interests of Seller which are not specified in Schedules
2.1(a)(1), (2), (3), and (4).
2.2 Purchase Price. The purchase price (the "Purchase Price") for the
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Acquired Assets shall be Fifty-One Million Dollars ($51,000,000.00), all of
which shall be paid by Purchaser to Seller in cash in immediately available
funds at the Closing.
2.3 Allocation of Purchase Price. The Purchase Price shall be allocated
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among the Acquired Assets as the Parties may mutually agree for all purposes
(including financial accounting and tax purposes). Purchaser and Seller shall
report the transactions contemplated herein for all tax purposes in accordance
with such allocation and, in any proceeding related to the determination of any
tax, neither Purchaser nor Seller shall contend or represent that such
allocation is not a correct allocation.
2.4 Assumption of Liabilities.
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(a) Subject to the terms and conditions of this Agreement, Purchaser
shall assume the following liabilities (the "Assumed Liabilities"):
(1) all obligations under the contracts listed in Schedule
2.1(a)(2) accruing after the Closing Date;
(2) all liabilities or obligations of any nature, kind or
description whatsoever, known or unknown, absolute, contingent or otherwise,
which arise or accrue with respect to or are attributable to the ownership and
operation of the Acquired Assets after the Closing Date; and
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(3) any liabilities incurred in the ordinary course of business
after the date of this Agreement in relation to the acquisition or construction
of the Acquired Assets.
(b) Seller shall retain and be responsible for, and Purchaser shall
have no responsibility for, all of Seller's liabilities or obligations other
than the Assumed Liabilities.
2.5 Adjustments. The Parties shall prorate and allocate property and ad
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valorem taxes related to the Acquired Assets applicable to the year of Closing
based on the period of time that each Party shall own such assets in the year of
Closing.
2.6 Transfer and Sales Taxes. Seller shall pay any real property transfer
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taxes payable in connection with the conveyance hereunder. Purchaser shall pay
all recording and other fees in connection therewith and shall also be
responsible for all sales and use taxes payable in connection with the sale,
transfer and assignment of the Acquired Assets to Purchaser.
2.7 Employees of Seller.
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(a) At the Closing, Purchaser shall be obligated to offer employment
to all persons employed by Seller in connection with the Acquired Assets. Those
persons who accept offers of employment and become employees of Purchaser are
referred to herein as the "Transferred Employees." Purchaser shall have no
obligation to continue the employment of the Transferred Employees for any
particular period of time after the Closing, subject only to the provisions of
paragraph (b) of this Section 2.7.
(b) The Parties shall comply with all applicable requirements under
the Workers Adjustment Retraining and Notification Act (29 U.S.C. (S)2101 et
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seq.) (the "WARN Act"). Seller shall be responsible for any WARN Act violations
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based on or arising from termination by Seller of its employees prior to, at or
after the Closing. Purchaser shall be responsible for any WARN Act violations
based on or arising from any termination of the Transferred Employees after the
Closing. At the Closing, Seller shall provide to Purchaser a list of all
employees or former employees terminated by Seller during the ninety (90) day
period prior to the Closing. Purchaser represents and warrants that during the
first ninety (90) days after the Closing it will not terminate any Transferred
Employee whose termination would, in the aggregate with terminations by Seller
during the ninety (90) day period prior to the Closing, result in a violation of
the WARN Act. The Parties acknowledge and agree that Purchaser has not provided
Seller with any notice of any present plans to take any action which would
entitle any employee to notice required under the WARN Act, nor authorized
Seller to provide such notice as agent of Purchaser.
(c) Seller shall provide all notices to its employees and their
dependents upon the termination of an employee's group health care coverage
required by the Consolidated Omnibus Reconciliation Act of 1985, as amended, due
to the termination of their employment, without regard to whether Purchaser
rehires any or all of such employees. Seller specifically undertakes to provide
any continuation coverage under COBRA elected by its employees whose
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employment is terminated in connection with the transactions contemplated by
this Agreement and their dependents.
Article 3
Representations and Warranties of Seller
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Seller represents and warrants to Purchaser as follows:
3.1 Organization. Seller is a corporation duly organized, validly
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existing and in good standing under the laws of the Commonwealth of Kentucky,
and has full corporate power and authority to own and lease the Acquired Assets,
and to operate the Acquired Assets as and where such assets are currently
operated.
3.2 Authority. Seller has full right, power, authority, and capacity to
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execute and deliver this Agreement and the Other Agreements, and to perform its
obligations under this Agreement and the Other Agreements. This Agreement and
the Other Agreements have been duly and validly executed by Seller and
constitute valid and legally binding obligations of Seller, enforceable in
accordance with their terms.
3.3 Validity, Etc.
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(a) The execution and delivery of this Agreement and the Other
Agreements, the consummation of the transactions contemplated hereby and
thereby, and the performance and fulfillment of their respective obligations and
undertakings hereunder and thereunder by Seller will not: (i) violate any
provision of, or result in the breach of or accelerate or permit the
acceleration of any performance required by the terms of (A) the articles of
incorporation or bylaws of Seller; (B) any contract, agreement, arrangement or
undertaking to which Seller is a party or by which it may be bound; (C) any
judgment, decree, writ, injunction, order or award of any arbitration panel,
court or governmental authority applicable to Seller; or (D) any applicable law,
ordinance, rule or regulation of any governmental body; (ii) result in the
creation of any claim, lien, charge or encumbrance upon any of the Acquired
Assets; (iii) terminate or cancel, or result in the termination or cancellation
of, any agreement or undertaking which Purchasers shall acquire or assume
pursuant to this Agreement. Other than in connection with the HSR Act, Seller
does not need to give any notice to, make any filing with or obtain any
authorization, consent or approval of, any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement.
(b) The execution and delivery of, and the performance and
consummation of the transactions contemplated by, this Agreement and the Other
Agreements have been duly authorized by all requisite corporate action of
Seller.
3.4 Tangible Assets. Schedule 2.1(a)(1) includes a correct and complete
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list of the tangible assets to be transferred to Purchaser pursuant to this
Agreement and accurately identifies whether such assets are owned or leased by
Seller (all such owned tangible assets are collectively
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referred to as the "Owned Tangible Assets" and all such leased tangible assets
are collectively referred to as the "Leased Tangible Assets"). On the Closing
Date, Seller will have good and marketable title to the Owned Tangible Assets,
free and clear of any claims, liens, charges, mortgages, security interests or
encumbrances whatsoever ("Charges"), and, immediately following the consummation
of the transactions at Closing, Purchaser will have good and marketable title
thereto, free and clear of any Charges. Seller has good leasehold title to all
Leased Tangible Assets, free and clear of all Charges, except charges related to
the leases listed on Schedule 3.4 (the "Asset Leases"), and, immediately
following the consummation of the transactions at Closing, Purchaser will have
good leasehold title thereto, free and clear of any Charges, except charges
related to the Asset Leases. The execution and delivery of this Agreement, and
the consummation of the transactions contemplated by this Agreement, will not
result in the creation of any Charges on such Tangible Assets. No warranty or
representation is made by the Seller, either express or implied, as to the
condition of the Acquired Assets or as to their fitness for any particular use.
Except as specifically provided for herein to the contrary, the conveyance of
the Acquired Assets will be made "as is" and "where is."
3.5 Real Property. Schedule 2.1(a)(3) includes a true, correct and
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complete list of the Real Property. Except as set forth in Schedule 3.5, Seller
generally warrants fee title to the Real Property. No notice of any violation
of any applicable zoning or building law, ordinance or administrative regulation
with regard to the Real Property has been received by Seller, and Seller has no
knowledge of, nor has any reasonable grounds to know of, the threat of any such
notice. All buildings and other improvements on the Real Property are in
satisfactory condition for their current use. No condemnation proceeding has
been instituted or, to the best of Seller's knowledge, is threatened with
respect to any of the Real Property.
3.6 Litigation and Pending Proceedings. Except as set forth on Schedule
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3.6, there are no claims of any kind or any actions, suits, proceedings,
arbitrations or investigations pending or, to the best of Seller's knowledge,
threatened in any court or before any governmental agency or instrumentality or
arbitration panel or otherwise against, by or affecting any of the Acquired
Assets, or which would prevent the performance of this Agreement or the Other
Agreements or any of the transactions contemplated hereby or thereby, or which
declare the same unlawful or cause the rescission thereof.
3.7 Intellectual Property. Schedule 2.1(a)(4) sets forth a true and
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complete identification and summary description of all Intellectual Property
that will be transferred to Purchaser as part of the Acquired Assets ("Seller's
Intellectual Property"). Except as set forth on Schedule 3.7: (i) all of
Seller's Intellectual Property is owned by Seller and is free and clear of all
liens, security interests, charges, encumbrances, equities and other adverse
claims; (ii) Seller is not a party to any licenses, consents, settlements or
other agreements involving Seller's Intellectual Property; (iii) there are, and
have been, no claims, actions or judicial or adversarial proceedings involving
Seller's Intellectual Property, and no such actions or proceedings are, to
Seller's knowledge, threatened or anticipated; (iv) Seller has the right and
authority to use Seller's Intellectual Property in connection with the conduct
of its business and such use has not and will not infringe upon, constitute a
misappropriation of, or otherwise violate the rights of any other
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person in, any Intellectual Property; (v) Seller has taken all necessary and
customary action to maintain and protect each item of Intellectual Property and,
without limitation, has not disclosed any of Seller's Intellectual Property to
any third party not subject to a binding confidentiality undertaking in favor of
Seller; and (vi) Seller has no knowledge of any past or present occurrences of
any probable infringement or misappropriation of, or violation of Seller's
rights in, any of Seller's Intellectual Property. Seller's Intellectual Property
constitutes all of the Intellectual Property in which Seller has registered and
transferrable rights applicable or relating to the Tangible Assets.
3.8 Insurance. The Acquired Assets, whether owned or leased, are insured
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against the hazards and in the amounts stated in the policies of insurance
listed on Schedule 3.8. All such insurance is in full force and effect. Seller
has, since the inception of its operations, continually maintained in full force
and effect adequate and statutorily required workers' compensation insurance,
including coverage for black lung and occupational disease, and such insurance
shall be maintained until the Closing.
3.9 Completeness of Statements. No statement, schedule, annex,
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certificate, information, representation or warranty of Seller contained in this
Agreement or the Other Agreements, or furnished by or on behalf of Seller to
Purchaser or any of Purchaser's agents pursuant hereto or thereto, or in
connection with the transactions contemplated hereby or thereby, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state a material fact necessary in order to make a statement contained herein or
therein not misleading. All representations and warranties of Seller contained
in this Agreement and in the Other Agreements are true and complete as of the
date hereof, and will be true and complete as of the Closing Date.
3.10 AS-IS. EXCEPT AS EXPRESSLY CONTAINED IN THIS AGREEMENT OR IN THE
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OTHER AGREEMENTS, PURCHASER ACKNOWLEDGES THAT SELLER HAS MADE NO REPRESENTATION
REGARDING THE VALUE OR CONDITION OF THE ACQUIRED ASSETS. EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT, THE ACQUIRED ASSETS WILL BE HELD BY SELLER AT
CLOSING "AS IS, WHERE IS," WITH NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, AS TO TITLE, OWNERSHIP, USE, POSSESSION, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, PROSPECTS, CONDITION, OPERATION, DESIGN, CAPACITY, TAX
TREATMENT OR OTHERWISE, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE
EXPRESSLY DISCLAIMED. NOTHING HEREIN SHALL BE CONSIDERED TO DIMINISH OR LIMIT
THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN THIS
AGREEMENT.
3.11 Environmental Matters. As used in this Section 3.11, the term
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"Hazardous Material" shall mean any substance, chemical or waste (including,
without limitation, asbestos, polychlorinated biphenyls and petroleum) that is
designated or defined (either by inclusion in a list of materials or by
reference to exhibited characteristics) as hazardous, toxic or dangerous, or as
a pollutant or contaminant, in any United States federal, state or local law,
code or ordinance,
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presently existing, and all rules and regulations promulgated thereunder,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. (S)(S) 9601, et seq., and the Kentucky
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Revised Statutes, Chapter 224. Except as set forth in Schedule 3.11, to the best
of Seller's knowledge: (i) none of the Acquired Assets is the subject of any
investigation evaluating whether any remedial action is needed to respond to a
release of any Hazardous Material into the environment; (ii) Seller has not
received, during the 3-year period preceding the date of this Agreement, any
written communication from any governmental authority that alleges, with respect
to the Acquired Assets, that Seller is not in compliance, in all respects, with
all federal, state, local or foreign laws, ordinances, codes, rules and
regulations relating to the environment ("Environmental Laws"); (iii) there are
no toxic, hazardous or carcinogenic substances or wastes disposed of, stored or
present on, in or under any of the Real Property in violation of, or which
currently requires remediation under, any federal, state or local law or
regulation; (iv) there are no material or reportable releases or threats of
material or reportable releases of any toxic, hazardous or carcinogenic
substances or wastes to the environment from or at any of the Real Property; (v)
with regard to the Real Property, Seller is in compliance in all material
respects with all Environmental Laws; and (vi) there are no pending or
threatened material claims, assessments or litigation against Seller with
respect to any alleged non-compliance with any Environmental Laws with regard to
the Real Property. Seller has provided Purchaser with all information within its
possession pertaining to the environmental history of the Acquired Assets.
3.12 Consents. All consents and approvals that Seller is required to
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obtain and notices that Seller is required to give to transfer the Acquired
Assets are listed on Schedule 3.12. Except for such consents and approvals,
Seller has the complete and unrestricted power and the unqualified right to
sell, convey, assign, transfer and deliver the Acquired Assets and the Other
Agreements.
3.13 Liabilities. As of the Closing, except for liabilities arising under
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the Asset Leases or other contracts listed in Schedule 2.1(a)(2), the Acquired
Assets will not be subject to any liability, commitment, indebtedness or
obligation of any kind whatsoever, whether absolute, accrued, contingent, known
or unknown, matured or unmatured, other than those which would not have a
material adverse effect on the Acquired Assets.
3.14 Contracts.
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(a) Except as set forth on Schedule 3.14, all of the contracts listed
on Schedule 2.1(a)(2) are in full force and effect, Seller has performed all
obligations required to be performed by it to date under all such contracts,
Seller is not in default under any such contract, and Seller does not know, nor
does Seller have any reasonable grounds to know, that any other party is in
default (or would be in default on the giving of notice or the lapse of time or
both) under any such contract.
(b) True and complete copies of all contracts which are listed on
Schedule 2.1(a)(2) and all amendments or supplements thereto have been delivered
to Purchaser
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or made available for Purchaser's inspection, and each such contract is valid
and binding on the parties thereto in accordance with its respective terms.
3.15 Taxes. All federal, state, county, local, foreign and other taxes
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that are due and payable by and on behalf of Seller with respect to the Acquired
Assets or with respect to Seller's employment of the Transferred Employees, and
all interest and penalties thereon, have been timely paid in full or timely and
fully withheld and paid, as the case may be.
3.16 Disclosure. To the knowledge of Seller, no representation or warranty
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or any other statement by Seller contained in this Agreement or any of the Other
Agreements or in any instrument, certificate or other document furnished or to
be furnished by Seller to Purchaser or its representatives or advisers in
connection herewith or pursuant hereto contains or will contain any untrue or
inaccurate statement of a material fact, or omits to state a fact necessary to
make the statements contained herein or therein not misleading.
3.17 Compliance with Law. With respect to the acquisition, manufacture,
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construction, use, operation, and maintenance of the Acquired Assets, Seller has
complied in all material respects with, and is not in default under (and has not
been charged and, to the best of Seller's knowledge, Seller has not been
threatened, nor is under any investigation, with respect to any charge
concerning any violation of any provision of) any federal, state or local law,
regulation, ordinance, rule or order (whether executive, judicial, legislative
or administrative) or any order, writ, injunction or decree of any court, agency
or instrumentality, other than those the outcome of which would not individually
or in the aggregate have a material adverse effect on the Acquired Assets or
Purchaser's ownership or use thereof after the Closing.
3.18 Employees.
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(a) No industrial awards or rulings, union agreements or employment
or service contracts apply to any of the Transferred Employees.
(b) Each of the Transferred Employees is employed exclusively by
Seller.
(c) Seller has not given any commitment (whether legally binding or
not) to increase or supplement the wages, salaries, vacation, sick leave or
other leave or any other remuneration, compensation or benefits of any
Transferred Employee beyond the amounts and entitlements of such employees as of
the date of this Agreement.
(d) Each employee benefit plan that Seller maintains for the benefit
of any of the Transferred Employees complies in form and in operation in all
material respects with all applicable legal requirements and all contributions
for all periods ending on or before the Closing Date for each such plan have
been paid or will be paid by their due date.
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Article 4
Representations and Warranties of Purchaser
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Purchaser represents and warrants to Seller as follows:
4.1 Organization. Purchaser is a corporation duly organized, validly
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existing and in good standing under the laws of the Commonwealth of Kentucky.
Purchaser has full corporate power and authority to own and lease its properties
as such properties are now owned and leased, and to conduct its businesses as
and where such businesses are now conducted.
4.2 Authority. Purchaser has full right, power, authority and capacity to
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execute, deliver and consummate this Agreement and the Other Agreements, and to
perform its obligations under this Agreement and the Other Agreements. This
Agreement and the Other Agreements have been duly and validly executed and
delivered by Purchaser and constitute valid and legally binding obligations of
Purchaser, enforceable against Purchaser in accordance with their terms.
4.3 Validity, Etc.
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(a) The execution and delivery of this Agreement and the Other
Agreements, the consummation of the transactions contemplated hereby and
thereby, and the performance and fulfillment of their respective obligations and
undertakings hereunder and thereunder by Purchaser will not violate any
provision of, or result in the breach of or accelerate or permit the
acceleration of any performance required by the terms of (i) the articles of
incorporation or bylaws of Purchaser; (ii) any contract, agreement, arrangement
or undertaking to which Purchaser is a party or by which it may be bound; (iii)
any judgment, decree, writ, injunction, order or award of any arbitration panel,
court or governmental authority applicable to Purchaser; or (iv) any applicable
law, ordinance, rule or regulation of any governmental body.
(b) The execution and delivery of, and the performance and
consummation of the transactions contemplated by, this Agreement and the Other
Agreements have been duly authorized by all requisite corporate action of
Purchaser.
4.4 Purchaser's Due Diligence. Purchaser has conducted such due diligence
-------------------------
investigations concerning the Acquired Assets as it has determined to be
necessary or desirable. Purchaser acknowledges that Seller is not making any
representations or warranties as to this transaction, except those contained in
Article 3 hereof and in the Other Agreements. In this regard, Purchaser
acknowledges that Seller is not making any express or implied representations or
warranties with respect to title or ownership of the Acquired Assets or the
condition, quality, working order or state of repair of the Acquired Assets,
except as specifically provided in Article 3 hereof. Seller disclaims any
implied warranties of merchantability or fitness for any particular purpose.
Purchaser has relied exclusively upon its own due diligence investigation of the
Acquired Assets, including the advice of such experts or consultants as
Purchaser has determined to be necessary or desirable in its sole discretion.
Purchaser acknowledges that Seller's records and files concerning the Acquired
Assets which have been made available for inspection by
12
Purchaser contain valuative and interpretative reports, studies and other
material, and that Purchaser has not relied upon such reports, studies or other
material in electing to purchase the Acquired Assets, but has undertaken such
independent analysis and other due diligence inquires concerning the Acquired
Assets as it has determined in its sole discretion to be necessary or desirable.
4.5 Disclosure. To the knowledge of Purchaser, no representation or
----------
warranty or any other statement by Purchasers contained in this Agreement or in
the Other Agreements or in any instrument, certificate or other document
furnished or to be furnished by Purchaser to Seller or its representatives in
connection herewith or pursuant hereto contains or will contain any untrue or
inaccurate statement of a material fact, or omits to state a fact necessary to
make the statements contained herein or therein not misleading.
4.6 No Knowledge of Breach. Purchaser has no knowledge of any breach of
----------------------
any representation or warranty by Seller under this Agreement.
Article 5
Covenants of Seller
-------------------
Seller covenants and agrees with Purchaser that from the date hereof
through the Closing:
5.1 Investigations. Seller shall continue to give Purchaser and the
--------------
employees, accountants, attorneys and other authorized agents and
representatives of Purchaser full access during all reasonable times to all
properties, books and records of Seller regarding the Acquired Assets. In the
event of the termination of this Agreement, Purchaser shall: (i) promptly
return to Seller all documents, work papers and other materials obtained from
Seller in connection with the transactions contemplated hereby (and not retain
copies thereof); (ii) keep confidential all information obtained in any
investigation except for information that is readily ascertainable from public
or published information or trade sources; and (iii) promptly destroy all
analyses, compilations, studies and other documents in the possession of, or
prepared by, Purchaser (or any Affiliate thereof) relating to such confidential
information.
5.2 Notices and Consents. Seller shall give all required notices to third
--------------------
parties and shall use commercially reasonable efforts to obtain all required
third-party consents; provided, however, that notwithstanding the foregoing,
Seller shall not be required to pay any remuneration to third parties in
exchange for such party's consent or execution of a waiver or to file any
lawsuit or other action to obtain any such consent or waiver.
5.3 Notification of Material Changes and Litigation. Seller shall provide
-----------------------------------------------
Purchaser with prompt written notice of any adverse or potentially adverse
material change in any of the Acquired Assets or Assumed Liabilities.
5.4 Cooperation. Seller shall use its best efforts to satisfy all
-----------
conditions to the Closing and effect the transactions contemplated by this
Agreement.
13
5.5 Discussions with Other Purchasers. Neither Seller nor any of Seller's
---------------------------------
shareholders, directors, officers, agents or employees, shall solicit, authorize
the solicitation of, or enter into any discussions with any third party to
purchase, lease or otherwise acquire any of the Acquired Assets.
5.6 Representations and Warranties. Seller shall not cause or permit any
------------------------------
of its representations and warranties made in this Agreement, including, without
limitation, the representations and warranties contained in Article 3 of this
Agreement, to be untrue or incomplete on the Closing Date or at any time prior
thereto.
5.7 Publicity. Except as required by applicable law, without the prior
---------
written consent of Purchaser, Seller shall not disclose or publish, or permit
the disclosure or publication of, any information concerning the execution and
delivery of this Agreement, or the transactions contemplated by this Agreement,
to any third party.
5.8 Antitrust Notification. To the extent applicable, Seller shall, as
----------------------
promptly as practicable, but in no event later than two (2) Business Days
following the execution and delivery of this Agreement, file with the FTC and
the DOJ its portion of the notification and report form required for the
transactions contemplated hereby and any supplemental information requested in
connection therewith pursuant to the HSR Act. Any such notification and report
form and supplemental information will be in substantial compliance with the
requirements of the HSR Act. Seller shall furnish to Purchaser such necessary
information and reasonable assistance as Purchaser may request in connection
with its preparation of any filing or submission which is necessary under the
HSR Act. Seller shall keep Purchaser apprised of the status of any
communications with, and inquiries or requests for additional information from,
the FTC and the DOJ and shall comply promptly with any such inquiry or request.
Seller shall use its best efforts to obtain any clearance required under the HSR
Act for the purchase and sale of the Acquired Assets. Seller and Purchaser
shall request an early termination of the waiting period under the HSR Act.
5.9 Patent Registration. Following the Closing, Seller shall provide such
-------------------
assistance and execute such documents as Purchaser shall reasonably request to
properly register in the name of Purchaser (with the Patent and Trademark
Office) all of Seller's Intellectual Property that is currently registered in
the name of Seller or any predecessor or Affiliate of Seller.
5.10 Conduct of Business.
-------------------
(a) Seller shall, with respect to the Acquired Assets, conduct its
business only in the ordinary course, and shall (i) consult with and keep
Purchaser informed in relation to decisions about the Acquired Assets and
consider any reasonable suggestions and advice of Purchaser, (ii) maintain and
protect the Acquired Assets, and (iii) fully and timely comply with and observe
all applicable requirements and orders of any governmental agency where non-
compliance would or might impose a Charge or other liability or restriction on
the Acquired Assets.
14
(b) Seller will not, without the prior written consent of Purchaser,
(i) dispose of any Acquired Asset other than in the ordinary course of business,
(ii) terminate or amend any of the contracts listed in Schedule 2.1(a)(2) other
than in the ordinary course of business, or (iii) make any announcement or do
any other thing that may discourage the Transferred Employees from accepting the
offer of employment referred to in Section 2.7(a) hereof.
Article 6
Covenants of Purchaser
----------------------
Purchaser covenants and agrees with Seller that from the date hereof
through the Closing:
6.1 Cooperation. Purchaser shall use its best efforts to satisfy all
-----------
conditions to the Closing and effect the transactions contemplated by this
Agreement.
6.2 Representations and Warranties. Purchaser will not cause or permit
------------------------------
any of its representations and warranties made in this Agreement, including,
without limitations, its representations and warranties contained in Article 4
of this Agreement, to be untrue or incomplete on the Closing Date or at any time
prior thereto.
6.3 Publicity. Except as required by applicable law, without the prior
---------
written approval of Seller, Purchaser shall not disclose or publish, or permit
the disclosure or publication of, any information concerning the execution and
delivery of this Agreement, or the transactions contemplated by this Agreement,
to any third party.
6.4 Antitrust Notification. To the extent applicable, Purchaser shall as
----------------------
promptly as practicable, but in no event later than two (2) Business Days
following the execution and delivery of this Agreement, file with the FTC and
the DOJ its portion of the notification and report form required for the
transactions contemplated hereby and any supplemental information requested in
connection therewith pursuant to the HSR Act. Any such notification and report
form and supplemental information shall be in substantial compliance with the
requirements of the HSR Act. Purchaser shall furnish to Seller such necessary
information and reasonable assistance as Seller may request in connection with
its preparation of any filing or submission which is necessary under the HSR
Act. Purchaser shall keep Seller apprised of the status of any communications
with, and inquiries or requests for additional information from, the FTC and the
DOJ and shall comply promptly with any such inquiry or request. Purchaser shall
use its best efforts to obtain any clearance required under the HSR Act for the
purchase and sale of the Acquired Assets. Purchaser and Seller shall request an
early termination of the writing period under the HSR Act.
6.5 Holdco Guaranty. Holdco shall guarantee the performance by Purchaser
---------------
of its obligations under this Agreement and the Other Agreements by executing
the guaranty agreement attached hereto as Annex 6.5 (the "Guaranty Agreement")
as of the Closing Date.
15
Article 7
Conditions to Obligations of Purchaser
--------------------------------------
The obligations of Purchaser to consummate the transactions contemplated
herein shall be subject to the satisfaction of the following conditions at or
before the Closing:
7.1 Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of Seller contained herein shall be true on the Closing Date, with
the same effect as though made at such time, except to the extent of changes
permitted by the terms of this Agreement. Seller shall have performed all
obligations and complied with all covenants required by this Agreement to be
performed or complied with by it prior to the Closing. In addition, Seller
shall have delivered to Purchaser a certificate dated the Closing Date and
signed by Seller's President and Secretary to the effect that, except as
disclosed in the certificate, they do not know, and have no reasonable grounds
to know, of any failure or breach of any representation, warranty, covenant or
obligation made or to be performed by Seller.
7.2 No Material Adverse Change. There shall not have occurred any
--------------------------
material adverse change since the date of this Agreement in the Acquired Assets
or Assumed Liabilities.
7.3 Statutory Requirements. All statutory requirements for the valid
----------------------
consummation by Purchaser of the transactions contemplated by this Agreement
shall have been fulfilled, and all authorizations, consents and approvals of all
federal, state, local and foreign governmental agencies and authorities required
to be obtained in order to permit the consummation by Purchaser of the
transactions contemplated by this Agreement, and to permit the operation of the
Acquired Assets, as presently carried on by Seller, to continue unimpaired in
all material respects immediately following the Closing, shall have been
obtained.
7.4 Other Agreements. Seller shall have executed all Other Agreements
----------------
required to be executed before the Closing Date in connection with the
transactions contemplated in this Agreement.
7.5 Deliveries. At or before the Closing, Seller shall make all of its
----------
deliveries contemplated in this Agreement.
7.6 Closing. The Closing shall occur on or before January 2, 1998. In
-------
the event the Closing shall not occur before January 2, 1998, this Agreement
shall be automatically extended indefinitely unless either Seller or Purchaser
delivers to the other written notice terminating this Agreement. If this
Agreement is terminated pursuant to this Section 7.6, Seller and Purchaser shall
be released from all further obligations under this Agreement and the Other
Agreements and shall have no obligation to further negotiate such agreements.
7.7 Third-Party Consents and Approvals. The Parties shall have obtained
----------------------------------
all third-party consents and approvals listed on Schedule 3.12.
16
7.8 Transfer Documents. Seller shall have delivered to Purchaser at the
------------------
Closing any and all bills of sale, deeds or other instruments necessary or
otherwise reasonably requested by Purchaser to duly and properly transfer and
convey title to each of the Acquired Assets as contemplated by this Agreement.
7.9 No Injunction. No injunction or order of any court or administrative
-------------
agency or instrumentality shall be in effect, and no statute, rule or regulation
of any governmental authority of competent jurisdiction shall have been
promulgated or enacted, as of the Closing which restrains or prohibits the
purchase and sale of the Acquired Assets.
7.10 No Pending Action. No action, suit or other proceeding by any Person
-----------------
to restrain or prohibit the purchase and sale of the Acquired Assets shall be
pending which in the written opinion of Purchaser's counsel is reasonably likely
to succeed.
7.11 Financing. Holdco shall have obtained all waivers, consents and
---------
approvals necessary (as determined by Holdco in its sole and absolute
discretion) to allow Holdco to use proceeds from the Line of Credit and the
Senior Notes, in such combination as Holdco shall determine to be appropriate in
its sole and absolute discretion, to contribute to Purchaser funds equal to the
Purchase Price.
Article 8
Conditions to Obligations of Seller
-----------------------------------
The obligations of Seller to consummate the transactions contemplated
herein shall be subject to the satisfaction of the following conditions at or
before the Closing:
8.1 Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of Purchaser contained herein shall be true on the Closing Date, with
the same effect as though made at such time, except to the extent of changes
permitted by the terms of this Agreement. Purchaser shall have performed all
obligations and complied with all covenants required by this Agreement to be
performed or complied with by it prior to the Closing. In addition, Purchaser
shall have delivered to Seller a certificate, dated the Closing Date and signed
by the President and Secretary of Purchaser, to the effect that, except as
disclosed in the certificate, they do not know, and have no reasonable grounds
to know, of any failure or breach of any representation, warranty, covenant or
obligation made or to be performed by Purchaser.
8.2 Statutory Requirements. All statutory requirements for the valid
----------------------
consummation by Seller of the transactions contemplated by this Agreement shall
have been fulfilled, and all authorizations, consents and approvals of all
federal, state, local and foreign governmental agencies and authorities required
to be obtained in order to permit the consummation by Seller of the transactions
contemplated by this Agreement shall have been obtained.
8.3 Deliveries. At or before the Closing, Purchaser shall make all of its
----------
deliveries contemplated in this Agreement.
17
8.4 Closing. The Closing shall occur on or before January 2, 1998. In
-------
the event the Closing shall not occur before January 2, 1998, this Agreement
shall be automatically extended indefinitely unless either Seller or Purchaser
delivers to the other written notice terminating this Agreement. If this
Agreement is terminated pursuant to this Section 8.4, Seller and Purchaser shall
be released from all further obligations under this Agreement and the Other
Agreements and shall have no obligation to further negotiate such agreements.
8.5 Other Agreements. Purchaser shall have executed all Other Agreements
----------------
required to be executed before the Closing Date in connection with the
transactions contemplated in this Agreement.
8.6 No Injunction. No injunction or order of any court or administrative
-------------
agency or instrumentality shall be in effect, and no statute, rule or regulation
of any governmental authority of competent jurisdiction shall have been
promulgated or enacted, as of the Closing, which restrains or prohibits the
purchase and sale of the Acquired Assets.
8.7 No Pending Action. No action, suit or other proceeding by any person
-----------------
to restrain or prohibit the purchase and sale of the Acquired Assets shall be
pending which in the written opinion of Seller's counsel is reasonably likely to
succeed.
Article 9
The Closing
-----------
9.1 Date and Place. The Closing shall be held on the Closing Date at
--------------
10:00 a.m. (EDT) in the offices of Xxxxx, Xxxx & Xxxxxxx PLLC, 2700 Lexington
Financial Center, Lexington, Kentucky, or at such other place or time on the
Closing Date as the Parties may mutually agree.
9.2 Deliveries. At or before the Closing, the Parties shall make all of
----------
the deliveries contemplated in this Agreement.
Article 10
Survival of Representations and Warranties--Indemnification
-----------------------------------------------------------
10.1 Survival. Each of the Parties' representations, warranties, covenants
--------
and agreements set forth in this Agreement shall survive the Closing for a
period of two (2) years, provided that the representations and warranties of
Seller contained in Section 3.15 (Taxes) shall continue in full force and effect
until the expiration of all applicable statutes of limitations.
10.2 Indemnity by Seller. Seller shall indemnify and hold Purchaser
-------------------
harmless from and against, and shall pay to Purchaser the full amount of, any
actual loss, damage, liability or expense (including reasonable attorneys' fees,
but excluding any special, exemplary, punitive or consequential damages, or any
damages other than, or in addition to, actual damages) (hereafter referred to as
a "Loss") resulting to Purchaser, either directly or indirectly, from: (a) any
material
18
inaccuracy in any representation or warranty, or any breach of any covenant or
agreement, by Seller contained in this Agreement or in any of the Other
Agreements; (b) any liability or obligation of Seller which is not an Assumed
Liability, including any such liability or obligation that becomes a liability
of Purchaser under any common law doctrine of successor liability or otherwise
by operation of law; and (c) any liability for any fee or commission owed to a
broker or finder pursuant to an agreement signed by Seller with respect to the
transactions contemplated by this Agreement.
10.3 Indemnity by Purchaser. Purchaser shall indemnify and hold Seller
----------------------
harmless from and against, and shall pay to Seller the full amount of, any Loss
resulting to Seller, either directly or indirectly, from: (a) any material
inaccuracy in any representation or warranty, or any breach of any covenant or
agreement, by Purchaser in this Agreement or in any of the Other Agreements; (b)
the Assumed Liabilities; and (c) any liability for any fee or commission owed to
a broker or finder pursuant to an agreement signed by Purchaser with respect to
the transactions contemplated by this Agreement.
10.4 Limitations. Seller's liability under Sections 10.2(a) and (b) and
-----------
Purchaser's liability under Sections 10.3(a) and (b) shall be limited to the
following Losses incurred by an indemnified Party: (i) any Loss arising from a
single event which exceeds Three Hundred Thousand Dollars ($300,000.00) (the
"Single Event Basket"); and (ii) Losses which, when aggregated with other Losses
under this Agreement, exceed One Million Five Hundred Thousand Dollars
($1,500,000.00) (the "Aggregate Basket"). Upon an indemnified Party's
successful assertion of a Loss or Losses against the indemnifying Party for an
amount exceeding the Single Event Basket or the Aggregate Basket, as the case
may be, the indemnified Party shall be entitled to recover only the amount
exceeding the Single Event Basket or the Aggregate Basket, as the case may be;
provided, however, that neither Seller's nor Purchaser's aggregate liability for
Losses shall exceed Seven Million Five Hundred Thousand Dollars ($7,500,000.00).
Article 11
Arbitration
-----------
11.1 Dispute Resolution. All controversies, disputes or claims arising
------------------
among the Parties (or any Person making a claim under or through, whether
derivatively or otherwise, any Party) in connection with, or with respect to,
any provision of this Agreement or any of the Other Agreements, which has not
been resolved within thirty (30) calendar days after Seller or Purchaser has
notified the other in writing of such controversy, dispute or claim, shall be
submitted for arbitration in accordance with the rules of the American
Arbitration Association or any successor thereof. Arbitration shall take place
at an appointed time and place in Lexington, Kentucky.
11.2 Selection of Arbitrators. Purchaser shall select one (1) arbitrator
------------------------
and Seller shall select one (1) arbitrator, and the two (2) so designated shall
select a third arbitrator. No Person shall be allowed to serve as arbitrator if
such Person is counsel for a party to the arbitration. If Purchaser or Seller
shall fail to designate an arbitrator within seven (7) calendar days after
arbitration is requested, or if the two (2) arbitrators shall fail to select a
third arbitrator within
19
fourteen (14) calendar days after arbitration is requested, then such arbitrator
shall be selected by the American Arbitration Association or any successor
thereto upon application of either Party. Judgment upon any award of the
majority of arbitrators shall be binding and shall be entered in a court of
competent jurisdiction. Subject to the provisions of this Agreement, including
but not limited to Section 12.15, the award of the arbitrators may grant any
relief that a court of general jurisdiction has authority to grant, including,
without limitation, an award of damages and/or injunctive relief, and shall
assess, in addition, the cost of the arbitration, including the reasonable fees
of the arbitrators, reasonable attorneys' fees and costs of all prevailing
Parties, against all non-prevailing parties to the arbitration.
11.3 Temporary Injunctive Relief. Nothing herein contained shall bar the
---------------------------
right of any of the Parties to seek and obtain temporary injunctive relief from
a court of competent jurisdiction in accordance with applicable law against
threatened conduct that will cause loss or damage, pending completion of the
arbitration, and the prevailing Party therein shall be entitled to an award of
its reasonable attorneys' fees and costs.
11.4 Arbitration Rules. All disputes and claims shall be determined by
-----------------
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "Rules") in effect on the date hereof, except that
such Rules shall be modified by this Agreement.
11.5 Arbitration Proceedings. All arbitral proceedings arising under, or
-----------------------
in connection with, this Agreement shall be governed by the Federal Rules of
Civil Procedure. Notwithstanding the previous sentence, the arbitrators' award
shall be made no later than ninety (90) days after their appointment. Subject
to the Parties' right to be treated fairly, the arbitrators may shorten the
periods of time otherwise applicable to the arbitral proceedings under the Rules
or the Federal Rules of Civil Procedure to permit the award to be made within
the time limitation set forth in the previous sentence.
Article 12
Miscellaneous
-------------
12.1 Notices. All notices under this Agreement ("Notices") shall be given
-------
to the Parties at the following addresses (i) by personal delivery; (ii) by
facsimile transmission; (iii) by registered or certified mail, postage prepaid,
return receipt requested; or (iv) by nationally recognized overnight or other
express courier services:
(a) If to Seller:
Xxxxxxxxx Enterprises, Inc.
0000 Xxxxx Xxx Xxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
20
(b) If to Purchaser:
Mining Technologies, Inc.
0000 Xxxxx Xxx Xxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(c) If to Holdco:
AEI Holding Company, Inc.
0000 Xxxxx Xxx Xxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
All Notices shall be effective and shall be deemed delivered (i) if by personal
delivery, on the date of delivery if delivered during normal business hours of
the recipient, and if not delivered during such normal business hours, on the
next Business Day following delivery; (ii) if by facsimile transmission, on the
next Business Day following dispatch of such facsimile; (iii) if by courier
service, on the third (3rd) Business Day after dispatch thereof; and (iv) if by
mail, on the fifth (5th) Business Day after dispatch thereof. Any Party may
change its address by Notice to the other Parties.
12.2 Waivers. No waiver or failure to insist upon strict compliance with
-------
any obligation, covenant, agreement or condition of this Agreement shall operate
as a waiver of, or an estoppel with respect to, any subsequent or other failure.
12.3 Expenses. Each Party shall assume its respective expenses incurred in
--------
connection with the transactions contemplated by this Agreement.
12.4 Headings. The headings in this Agreement have been included solely
--------
for ease of reference and shall not be considered in the interpretation or
construction of this Agreement.
12.5 Annexes and Schedules. The Annexes and Schedules to this Agreement
---------------------
are incorporated herein by reference and expressly made a part hereof.
12.6 Entire Agreement. All prior negotiations and agreements by and among
----------------
the Parties hereto with respect to the subject matter hereof are superseded by
this Agreement, and there are no representations, warranties, understandings or
agreements with respect to the subject matter hereof other than those expressly
set forth herein or on an Annex or Schedule delivered in connection herewith or
in the Other Agreements. No extension, change, modification, addition
21
or termination of this Agreement shall be enforceable unless in writing and
signed by the party against whom enforcement is sought.
12.7 Representations and Warranties, Etc. The representations and
-----------------------------------
warranties of each Party contained herein shall not be deemed to be waived or
otherwise affected by any investigation made by any other Party hereto. As used
in this Agreement, the term "Seller's knowledge," and all other references to
matters which are known by or to Seller, shall refer to matters which are known,
or which with the exercise of reasonable care should have been known, by Seller
after consultation with Seller's current corporate officers, directors, plant
managers, shift supervisors and foremen, and after their due investigation of
corporate records (except that if Seller is required to make "due inquiry" with
respect to any matter, it shall make such additional inquiry as a reasonable
person would make under the circumstances).
12.8 Governing Law. This Agreement shall be governed by, and construed and
-------------
interpreted in accordance with, the laws of the Commonwealth of Kentucky.
Subject to Article 11, each Party agrees that any action brought in connection
with this Agreement against another shall be filed and heard in Fayette County,
Kentucky, and each Party hereby submits to the jurisdiction of the Circuit Court
of Fayette County, Kentucky, and the U.S. District Court for the Eastern
District of Kentucky, Lexington Division.
12.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
12.10 Severability. If any provision of this Agreement or its application
------------
will be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of all other applications of that provision, and of all other
provisions and applications hereof, will not in any way be affected or impaired.
If any court shall determine that any provision of this Agreement is in any way
unenforceable, such provision shall be reduced to whatever extent is necessary
to make such provision enforceable.
12.11 Benefit and Binding Effect. This Agreement shall be binding upon, and
--------------------------
shall inure to the benefit of Purchaser and Seller and each of their respective
successors and assigns; provided, however, that no Party to this Agreement shall
assign its rights or obligations hereunder without the express written consent
of the other Parties, which consent shall not be unreasonably withheld.
12.12 Risk of Loss. The risk of any loss or damage to any of the Acquired
------------
Assets by fire or any other casualty or cause shall be borne by Seller at all
times through the Closing, and by Purchaser thereafter.
12.13 Further Assurances. From time to time at another Party's request and
------------------
without further consideration, a Party shall execute and deliver such further
instruments of conveyance, assignment and transfer, and take such other actions
as the requesting Party may reasonably
22
request, in order to more effectively convey and transfer any of the Acquired
Assets. In addition, any monies collected by a Party which are due and payable
to another Party will be promptly remitted to such Party upon receipt thereof.
12.14 Specific Performance. Subject to Article 11 and Section 12.15,
--------------------
Purchaser and Seller shall be entitled to specific performance, injunctive
relief and other equitable relief for breaches of the other Party's covenants
and agreements, and such relief may be awarded by the arbitrators pursuant to
Article 11. Therefore, it is agreed that Seller and Purchaser will not, in any
action to enforce this Agreement, assert that there is an adequate remedy at law
for the default on which such action or proceeding is based.
12.15 No Consequential Damages. Except as prohibited by law, each Party
------------------------
waives any right it may have to claim or recover any special, exemplary,
punitive or consequential damages, or any damages other than, or in addition to,
actual damages.
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement
as of the date set forth in the preamble hereto.
MINING TECHNOLOGIES, INC., a Kentucky
corporation
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
AEI HOLDING COMPANY, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
XXXXXXXXX ENTERPRISES, INC., a Kentucky
corporation
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: CFO
23
LIST OF ANNEXES AND SCHEDULES
Annexes
-------
1.1(f) Form of Assignment of Contracts
1.1(h) Form of Xxxx of Sale
1.1(m) Form of Deed
1.1(y) Form of Non-Compete Agreement
6.5 Form of Guaranty Agreement
Schedules
---------
2.1(a)(1) Assets to be Purchased by Purchaser
2.1(a)(2) Contracts to be Assigned to Purchaser
2.1(a)(3) Real Property to be Purchased by Purchaser
2.1(a)(4) Intellectual Property to be Purchased by Purchaser
3.4 Asset Leases
3.5 Real Property
3.6 Litigation and Pending Proceedings
3.7 Seller's Intellectual Property
3.8 Insurance
3.11 Environmental Matters
3.12 Consents
3.14 Contract Non-Compliance
================================================================================
ASSET PURCHASE AGREEMENT
dated as of December 18, 1997
between
XXXXXXXXX ENTERPRISES, INC.
and
MINING TECHNOLOGIES, INC.
================================================================================
TABLE OF CONTENTS
Page
----
Article 1 - Definitions................................................ 1
1.1 Definitions.......................................... 1
1.2 Additional Terms..................................... 4
1.3 Rules of Interpretation.............................. 4
Article 2 - Purchase and Sale.......................................... 5
2.1 Purchase of the Assets............................... 5
(a) Acquired Assets............................. 5
(b) Excluded Assets............................. 5
2.2 Purchase Price....................................... 5
2.3 Allocation of Purchase Price......................... 5
2.4 Assumption of Liabilities............................ 5
2.5 Adjustments.......................................... 6
2.6 Transfer and Sales Taxes............................. 6
2.7 Employees of Seller.................................. 6
Article 3 - Representations and Warranties of Seller................... 7
3.1 Organization......................................... 7
3.2 Authority............................................ 7
3.3 Validity, Etc........................................ 7
3.4 Tangible Assets...................................... 7
3.5 Real Property........................................ 8
3.6 Litigation and Pending Proceedings................... 8
3.7 Intellectual Property................................ 8
3.8 Insurance............................................ 9
3.9 Completeness of Statements........................... 9
3.10 AS-IS................................................ 9
3.11 Environmental Matters................................ 9
3.12 Consents............................................. 10
3.13 Liabilities.......................................... 10
3.14 Contracts............................................ 10
3.15 Taxes................................................ 10
3.16 Disclosure........................................... 11
3.17 Compliance with Law.................................. 11
3.18 Employees............................................ 11
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Article 4 - Representations and Warranties of Purchaser.................... 11
4.1 Organization............................................. 11
4.2 Authority................................................ 11
4.3 Validity, Etc............................................ 12
4.4 Purchaser's Due Diligence................................ 12
4.5 Disclosure............................................... 12
4.6 No Knowledge of Breach................................... 13
Article 5 - Covenants of Seller............................................ 13
5.1 Investigations........................................... 13
5.2 Notices and Consents..................................... 13
5.3 Notification of Material Changes and Litigation.......... 13
5.4 Cooperation.............................................. 13
5.5 Discussions with Other Purchasers........................ 13
5.6 Representations and Warranties........................... 13
5.7 Publicity................................................ 13
5.8 Antitrust Notification................................... 14
5.9 Patent Registration...................................... 14
5.10 Conduct of Business...................................... 14
Article 6 - Covenants of Purchaser......................................... 14
6.1 Cooperation.............................................. 14
6.2 Representations and Warranties........................... 14
6.3 Publicity................................................ 15
6.4 Antitrust Notification................................... 15
6.5 Holdco Guaranty.......................................... 15
Article 7 - Conditions to Obligations of Purchaser......................... 15
7.1 Representations, Warranties and Covenants................ 15
7.2 No Material Adverse Change............................... 15
7.3 Statutory Requirements................................... 16
7.4 Other Agreements......................................... 16
7.5 Deliveries............................................... 16
7.6 Closing.................................................. 16
7.7 Third-Party Consents and Approvals....................... 16
7.8 Transfer Documents....................................... 16
7.9 No Injunction............................................ 16
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7.10 No Pending Action....................................... 16
7.11 Financing............................................... 16
Article 8 - Conditions to Obligations of Seller........................... 17
8.1 Representations, Warranties and Covenants............... 17
8.2 Statutory Requirements.................................. 17
8.3 Deliveries.............................................. 17
8.4 Closing................................................. 17
8.5 Other Agreements........................................ 17
8.6 No Injunction........................................... 17
8.7 No Pending Action....................................... 17
Article 9 - The Closing................................................... 18
9.1 Date and Place.......................................... 18
9.2 Deliveries.............................................. 18
Article 10 - Survival of Representations and Warranties--Indemnification.. 18
10.1 Survival................................................ 18
10.2 Indemnity by Seller..................................... 18
10.3 Indemnity by Purchaser.................................. 18
10.4 Limitations............................................. 18
Article 11 - Arbitration.................................................. 19
11.1 Dispute Resolution...................................... 19
11.2 Selection of Arbitrators................................ 19
11.3 Temporary Injunctive Relief............................. 19
11.4 Arbitration Rules....................................... 19
11.5 Arbitration Proceedings................................. 19
Article 12 - Miscellaneous................................................ 20
12.1 Notices................................................. 20
12.2 Waivers................................................. 21
12.3 Expenses................................................ 21
12.4 Headings................................................ 21
12.5 Annexes and Schedules................................... 21
12.6 Entire Agreement........................................ 21
12.7 Representations and Warranties, Etc..................... 21
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12.8 Governing Law............................................. 21
12.9 Counterparts.............................................. 21
12.10 Severability.............................................. 22
12.11 Benefit and Binding Effect................................ 22
12.12 Risk of Loss.............................................. 22
12.13 Further Assurances........................................ 22
12.14 Specific Performance...................................... 22
12.15 No Consequential Damages.................................. 22
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