EXECUTION COPY
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STOCK PURCHASE AGREEMENT
among
HUCK INTERNATIONAL, INC.,
as Purchaser,
XXXXXX XXXXXXXX,
as Trustee of the Xxxxxx
Xxxxxxxx Revocable Trust No.2
u/a/d March 1, 1998,
as Seller,
XXXXXX XXXXXXXX,
and
CORDANT TECHNOLOGIES INC.
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Dated as of May 13, 1998
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TABLE OF CONTENTS
I. DEFINED TERMS Page
1.01. Defined Terms.........................................1
1.02. Other Definitions.....................................5
1.03. Accounting Terms......................................6
1.04. Other Rules of Construction...........................6
II. PURCHASE AND SALE
2.01. Purchase and Sale.....................................6
2.02. Closing Date Payment Amount...........................6
2.03. The Closing...........................................6
2.04. Purchase Price Adjustments............................7
2.05. Further Assurances....................................8
2.06. Cordant Actions.......................................8
III. REPRESENTATIONS AND WARRANTIES OF SELLER
AND XXXXXXXX
3.01. Authority.............................................8
3.02. Ownership of the Shares...............................9
3.03. Organization and Qualification of the Company.........9
3.04. Capital Stock of the Company..........................10
3.05. Other Equity Interests................................10
3.06. Historical Financial Statements;
No Undisclosed Liabilities........................... 10
3.07. Absence of Material Adverse Changes.................. 10
3.08. Real Property and Improvements....................... 11
3.09. Personal Property.................................... 12
3.10. Intellectual Property Rights......................... 12
3.11. Litigation........................................... 12
3.12. Contracts............................................ 12
3.13. Benefit Plans.........................................13
3.14. Taxes.................................................15
3.15. Environmental Matters.................................15
3.16. Transactions with Affiliates..........................16
3.17. Insurance.............................................16
3.18. Accuracy..............................................16
IV. REPRESENTATIONS AND WARRANTIES OF PURCHASER
AND CORDANT
4.01. Organization..........................................16
4.02. Authority.............................................16
4.03. Available Funds.......................................17
4.04. No Legal Proceedings..................................17
4.05. Securities Act of 1933................................17
V. FURTHER COVENANTS AND AGREEMENTS
5.01. Conduct of Business...................................18
5.02. Access; Information; Confidentiality..................19
5.03. Consents and Conditions to Closing....................19
5.04. Notification of Certain Matters.......................19
5.05. Insurance.............................................20
5.06. Xxxxxxxx Name.........................................20
5.07. Prohibition of Solicitation...........................20
5.08. Pay-Off of Debt.......................................20
5.09. Related Party Obligations.............................20
5.10. Resignation of Officers and Directors.................21
VI. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
6.01. Opinion of Counsel....................................21
6.02. Performance by Seller.................................21
6.03. Representations and Warranties........................21
6.04. No Injunctions........................................21
6.05. Seller's Certificate..................................21
6.06. Secretary's Certificate...............................22
6.07. Consents..............................................22
6.08. Ancillary Agreements..................................22
6.09. Transfer of All Capital Stock.........................22
VII. CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXXXXXX
AND SELLER
7.01. Opinion of Counsel....................................22
7.02. Performance by Purchaser..............................22
7.03. Representations and Warranties........................22
7.04. No Injunctions........................................23
7.05. Officer's Certificate.................................23
7.06. Purchaser's Secretary's Certificate...................23
7.07. Cordant's Secretary's Certificate.....................23
7.08. Consents..............................................23
7.09. Non-Competition Agreement.............................23
VIII. SURVIVAL AND INDEMNIFICATION
8.01. Survival of Representations, Etc.; Exclusive Remedies.23
8.02. Indemnification by Seller and Xxxxxxxx................24
8.03. Indemnification by Purchaser and Cordant..............25
8.04. Notice; Cooperation; Defense; Etc.....................26
8.05. Time Limitations; Recoverable Damages.................26
IX. TAXES
9.01. Taxes.................................................27
9.02. Transfer Taxes........................................31
9.03. Treatment of Indemnity and Other Payments.............31
9.04. Survival and Indemnification..........................31
X. MISCELLANEOUS
10.01. Brokers..............................................32
10.02. Expenses.............................................32
10.03. Preservation of Records..............................32
10.04. Amendments and Waivers...............................33
10.05 Transferability......................................33
10.06. Termination..........................................33
10.07. Notices..............................................33
10.08. Governing Law; Choice of Forum.......................34
10.09. Partial Invalidity...................................35
10.10. Section Headings.....................................35
10.11. Disclosure...........................................35
10.12 Counterparts.........................................35
10.13 Entire Agreement.....................................35
10.14 Publicity............................................35
10.15 Parties in Interest..................................35
10.16. Knowledge............................................36
10.17 Specific Performance.................................36
10.18 Cordant Guarantee....................................36
10.19 Xxxxxxxx Guarantee...................................36
Exhibits
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6.01. Opinion of Counsel for Seller
6.08. Form of Xxxxxxxx Non-Competition Agreement
7.01. Opinion of Counsel for Purchaser
9.01(h). Xxxxxxxx Purchase Price Allocation
9.01(j). Form of Tax Payment Agreement
Schedules
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3.01. Authority
3.05. Other Equity Interests
3.06. Historical Financial Statements
3.07. Absence of Material Adverse Changes
3.08. Real Property and Improvements
3.09. Personal Property
3.10. Intellectual Property Rights
3.11. Litigation
3.12. Contracts
3.13. Benefit Plans
3.14. Taxes
3.15. Environmental Matters
3.16. Transaction with Affiliates
3.17. Insurance
4.02. Authority (Purchaser)
5.01. Conduct of Business
5.04. Notification of Certain Matters
STOCK PURCHASE AGREEMENT dated as of May 13, 1998,
among HUCK INTERNATIONAL, INC., a Delaware corporation
(the "Purchaser"), XXXXXX XXXXXXXX, as Trustee of the
Xxxxxx Xxxxxxxx Revocable Trust No. 2 u/a/d March 1,
1998 (the "Seller"), XXXXXX XXXXXXXX, an individual
("Xxxxxxxx"), and CORDANT TECHNOLOGIES INC., a Delaware
corporation ("Cordant").
WHEREAS Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, all the issued and outstanding shares of capital
stock of Xxxxxxxx Mfg. Co. Inc., a New Jersey corporation (the "Company"),
upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
Defined Terms
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1.01. Defined Terms. The following terms, not defined elsewhere in
this Agreement, shall have the following meanings:
"Affiliate" shall mean, as to the party specified, any Person
which directly or indirectly through stock ownership or through any
other arrangement either controls, is controlled by or is under common
control with, such party. The term "control" shall mean the power to
direct the affairs of such Person by reason of ownership of voting
stock or other equity interests, by contract or otherwise.
"Applicable Accounting Principles" shall mean United States
Generally Accepted Accounting Principles, consistently applied.
"Approved Remediation Program" shall mean any program for the
remediation or containment of any spill or release of Hazardous
Materials at any Real Property or Former Facility that is (i) proposed
or adopted by Seller or its Affiliates (or, at Seller's option, by the
Company or its Affiliates) and (ii) approved by any Environmental
Authority having jurisdiction over the Real Property or Former
Facility in question.
"Business Day" shall mean any day other than a Saturday, Sunday
or other day on which banks are authorized to be closed in New York
City.
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"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Contracts" shall mean the leases, rental agreements, insurance
policies, sales orders, collective bargaining agreements, union
contracts, licenses, agreements, permits, purchase orders, commitments
and any and all other contracts or binding arrangements (including,
capital commitments), whether written or oral, express or implied, of
the Company.
"Dollars" and "$" shall mean, unless otherwise specified, United
States Dollars.
"Encumbrances" shall mean, to the extent applicable, all claims,
liens (including liens for Taxes), mortgages, security interests,
leases, options, rights of first refusal or first offer, easements or
other similar encumbrances.
"Environmental Affiliates" of the Company shall mean,
collectively, (a) any former subsidiaries of the Company, (b) all
partnerships, joint ventures and other entities or organizations in
which the Company was at any time a partner, joint venturer, member or
participant, (c) all predecessors or former corporations,
partnerships, joint ventures, organizations, businesses or other
entities whether in existence as of the date hereof or at any time
prior to the date hereof, the assets and obligations of which have
been acquired or assumed by the Company and to which the Company has
succeeded.
"Environmental Authority" shall mean any Federal, state or local
governmental authority charged with the enforcement of Environmental
Laws.
"Environmental Laws" shall mean all applicable Federal, state,
local and foreign laws, statutes, ordinances, codes, rules, standards
and regulations, and any applicable judicial or administrative
interpretation thereof, including any common law, applicable judicial
or administrative order, consent decree or judgment, imposing
liability or standards of conduct for the protection, preservation or
restoration of the environment (including ambient air, surface water,
groundwater, drinking water, wetlands, land surface or subsurface
strata, animal life and vegetation) and human health and safety.
Environmental Laws include the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. ss 9601 et seq.)
("CERCLA"); the Hazardous Materials Transportation Authorization Act
of 1994 (49 U.S.C. ss 5101 et seq.); the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. ss 136 et seq.); the Solid
Waste Disposal Act (42 U.S.C. ss 6901 et seq.); the Toxic Substance
Control Act (15 U.S.C. ss 2601 et seq.); the Clean Air Act (42 U.S.C.
ss 7401 et seq.); the Federal Water Pollution Control Act (33 U.S.C.
ss 1251 et seq.); the Safe Drinking Water Act (42 U.S.C. ss 300(f)
et seq.) and all analogous state, local and foreign counterpart or
equivalent statutes and any transfer of ownership notification or
approval statutes relating to environmental matters, each as amended
and in effect on the date hereof, and any and all regulations
promulgated thereunder.
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"Environmental Losses" shall mean amounts (net of insurance,
contributions from other potentially responsible parties and any
applicable reserves or escrows) paid to third parties (including
consultants and counsel and including fines and penalties payable to
governmental authorities, if applicable) after the Closing Date that
are incurred: (i) in the defense of, or in settlement or pursuant to a
judgment in respect of, any regulatory action brought by any
Environmental Authority, or any lawsuit brought by a third party,
relating to the off-site disposal or release of Hazardous Materials by
the Company prior to the Closing Date giving rise to liability under
applicable Environmental Laws (but only if and to the extent the
Company would have had this liability, if then properly asserted, on
or prior to the Closing Date) or (ii) in remediation of any Real
Property or Former Facility following the independent initiation of an
investigation by an Environmental Authority of such Real Property or
Former Facility, but only insofar as such amounts are spent to meet
the minimum requirements under applicable Environmental Laws or any
Approved Remediation Program in respect of the clean-up or remediation
of any Hazardous Materials spilled or released at such site prior to
the Closing Date (and only if and to the extent the Company would have
had this liability, if then properly asserted, on or prior to the
Closing Date); PROVIDED, HOWEVER, that "Environmental Losses" shall
not include expenses attributable directly or indirectly to (a) any
environmental conditions that are aggravated after the Closing Date
(by the Company or Purchaser), to the extent so aggravated, (b) any
change or proposed change in the Company's business or in or to any
Real Property or Former Facility (or the use thereof) after the
Closing Date or (c) the operations (including safety requirements) of
the Company after the Closing Date (or any permits relating thereto).
"Environmental Permits" shall mean all material permits, licenses
and authorizations of all governmental authorities needed by the
Company for the conduct of its operations as currently conducted under
all applicable Environmental Laws.
"Former Facilities" shall mean all real property and related
facilities owned, leased or operated by the Company or its
Environmental Affiliates at any time prior to the date hereof, and all
buildings, structures, improvements and fixtures located thereon,
whether owned, leased or otherwise held or used by the Company or any
Environmental Affiliate, but excluding any Real Property or
Improvement.
"Hazardous Material" shall mean any substance (liquid, gas or
solid), material or waste which is regulated by or forms the basis of
liability under any Environmental Laws, including any material or
substance which is (a) defined as a "solid waste," "hazardous waste,"
"hazardous material," "hazardous substance," "extremely hazardous
waste," "restricted hazardous waste," "pollutant," "contaminant,"
"hazardous constituent," "special waste," "toxic substance" or other
similar term or phrase under any Environmental Law, (b)
polychlorinated biphenyls (PCB's) or (c) any radioactive substance.
"Historical Financial Statements" shall mean the Company's
audited financial statements (balance sheets, statements of income and
statements of cash flows) for the
4
fiscal years ending December 31, 1996 and December 31, 1997, and the
Company's unaudited balance sheet as of March 31, 1998 and unaudited
statement of income for the fiscal quarter ended March 31, 1998,
copies of which are included in Schedule 3.06(a).
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"Income Taxes" shall mean all Taxes on or measured by net income,
gross profits or net profits, together with any interest and any
penalties, additions to tax or additional amounts imposed by any
taxing authority, domestic or foreign.
"Xxxxxxxx Non-Competition Agreement" shall mean a Non-Competition
Agreement between Xxxxxxxx and the Purchaser dated the Closing Date in
the form of Exhibit 6.08.
"Intellectual Property Rights" shall mean Patents, Trademarks,
Trade Names, copyrights, and confidential and proprietary shop
drawings, industrial designs, inventions, trade secrets, and customer
and supplier lists.
"Multiemployer Plan" shall mean any "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA (i) which the Company
maintains, administers, contributes to or is required to contribute to
or under which the Company may incur any liability and (ii) which
covers any employee or former employee of the Company.
"Multiemployer Welfare Plan" shall mean any "employee welfare
plan" which covers employees of more than one employer and to which
the Company contributes or is obligated to contribute.
"Patents" shall mean patents (including all reissues, divisions,
continuations, continuations in part and extensions thereof), patent
applications and patent disclosures docketed.
"Permitted Encumbrances" shall mean, to the extent applicable,
Encumbrances which (a) are liens for Taxes not yet due and payable,
(b) do not, individually or in the aggregate, materially detract from
the value of the assets to which they attach, (c) are mechanics',
carriers', materialmen's, landlords', workers' or other similar liens
incurred in the ordinary course of business or (d) relate to molds,
equipment or similar assets owned by customers or third parties that
are used by the Company in its operations.
"Person" shall mean any natural person, corporation, limited
liability company, unincorporated association, trust, partnership,
joint venture or other entity.
"Taxes" shall mean all taxes on, or measured by or referred to
as, income, gross receipts, sales, use, ad valorem, franchise,
profits, license, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property or windfall profits
5
taxes, customs, duties or similar assessments or charges, together
with any interest and any penalties, additions to tax or additional
similar amounts imposed by any taxing authority, domestic or foreign,
with respect thereto.
"Tax Returns" shall mean all returns, reports and statements
relating to Taxes that are required to be filed with any appropriate
domestic or foreign taxing authority.
"Trade Names" shall mean trade names embodying goodwill of the
Company, whether or not registration has been obtained or an
application for registration is pending.
"Trademarks" shall mean trademarks, service marks, brand names,
brand marks, trade dress, logos and all other names and slogans
associated with products of the Company, and all registrations thereof
and pending applications therefor.
"Trust Agreement" shall mean the Declaration of Trust, entitled
"Xxxxxx Xxxxxxxx Revocable Trust No. 2 dated March 1, 1998", made and
entered into by Xxxxxxxx.
1.02. Other Definitions. The following terms are defined in the
sections indicated:
Term Section
"Adjusted Purchase Price 2.04
"Arbitrator" 2.04
"Balance Sheet" 2.04
"Benefit Plans" 3.13
"Claims" 8.04
"Closing" 2.03
"Closing Date" 2.03
"Closing Date Payment Amount: 2.02
"Closing Working Capital" 2.04
"COBRA" 3.13
"Current Assets" 2.04
"Current Liabilities" 2.04
"ERISA" 3.13
"Improvements" 3.08
"Losses" 8.02
"Material Adverse Effect" 3.03
"Notice of Disagreement" 2.04
"Order" 3.11
"Purchase Price" 2.02
"Real Property" 3.08
"Shares" 2.01
"Statement" 2.04
6
"WC Amount" 2.04
"Working Capital" 2.04
1.03. Accounting Terms. Any accounting terms used in this
Agreement shall, unless otherwise specifically provided, have the
meanings given them in accordance with, and all financial computations
hereunder shall, unless otherwise specifically provided, be computed
in accordance with, the Applicable Accounting Principles.
1.04. Other Rules of Construction. References in this Agreement
to sections, schedules and exhibits are to sections of, and schedules
and exhibits to, this Agreement unless otherwise indicated. Unless
otherwise specifically provided, all references to laws, rules
regulations, agreements, Contracts, instruments, policies,
interpretations, accounting standards, stock exchange rules or other
governmental, judicial or quasi-governmental standards or
determinations, or the standards or determinations of any applicable
self-regulatory organizations, shall be deemed to be references to the
same as currently in effect on the date hereof. Words in the singular
include the plural and in the plural include the singular. The word
"or" is not exclusive. The words "including", "includes", "included"
and "include", when used, are deemed to be followed by the words
"without limitation".
ARTICLE II
Purchase and Sale
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2.01. Purchase and Sale. Upon the terms and subject to the
conditions set forth in this Agreement, Seller agrees to sell, assign,
transfer, convey and deliver all the issued and outstanding capital
stock of the Company (the "Shares") to Purchaser, and Purchaser agrees
to purchase and accept the Shares from Seller, on the Closing Date.
2.02. Closing Date Payment Amount. In consideration of the sale
and transfer to Purchaser of the Shares on the Closing Date, Purchaser
shall deliver to Seller on the Closing Date, by wire transfer of
immediately available funds, the following (the "Closing Date Payment
Amount"): (i) $269,000,000 (the "Purchase Price") plus or minus, as
the case may be, (ii) an estimate, prepared by Seller and communicated
to Purchaser at least five Business Days prior to the Closing Date, of
any adjustments to the Purchase Price pursuant to Section 2.04.
2.03. The Closing. Upon the terms and subject to the conditions
set forth in this Agreement, the acquisition by Purchaser of the
Shares (herein called the "Closing") shall take place at 10:00 a.m. at
the offices of Xxxxxxx, Xxxxxxxx & Kotel, 12 East 49th Street, 30th
Floor, New York, New York, on the later to occur of May 31, 1998 and
the second Business Day following the date on which the conditions set
forth in Articles VI and VII shall have been satisfied or waived, or
such other time, date and place as the parties shall agree upon (the
date of the Closing being herein referred to as the "Closing Date").
7
2.04. Purchase Price Adjustments. (a) Within 60 days after the
Closing Date, Seller shall prepare and deliver to Purchaser a
statement (the "Statement"), setting forth Working Capital (as defined
below) as of the close of business on the Closing Date ("Closing
Working Capital"). Purchaser shall cause the Company and its employees
to assist Seller and its representatives in the preparation of the
Statement and shall provide Seller and its representatives access at
all reasonable times to the personnel, properties, books and records
of the Company for such purpose. Purchaser and its representatives may
participate in the preparation of the Statement; provided, however,
that Purchaser acknowledges that Seller shall have the primary
responsibility and authority for preparing the Statement. At
Purchaser's option and expense, a physical inventory shall be
conducted by the Company on or before the Closing Date for the purpose
of preparing the Statement, and each of Seller and Purchaser and their
respective representatives shall have the right to observe the taking
of such physical inventory. Any expense incurred by the Company in
connection with the taking of such a physical inventory shall be for
the account of Purchaser and shall not be reflected in determining
Closing Working Capital. During the 30-day period following
Purchaser's receipt of the Statement, Purchaser and its independent
auditors will be permitted to review Seller's methodology and working
papers relating to the Statement. The Statement shall become final and
binding upon the parties on the thirtieth day following receipt
thereof by Purchaser unless Purchaser gives written notice of any
disagreement ("Notice of Disagreement") to Seller prior to such date.
The Notice of Disagreement (if any) shall specify in reasonable and
sufficient detail the nature of any disagreement so asserted and shall
be accompanied by a certificate of Purchaser's independent auditors
that they concur with each of the positions taken by Purchaser in the
Notice of Disagreement. If a Notice of Disagreement is received by
Seller in a timely manner, then the Statement (as revised in
accordance with clause (x) or (y) below) shall become final and
binding upon the parties on the earlier of (x) the date the parties
hereto resolve in writing any differences they have with respect to
any matter specified in the Notice of Disagreement or (y) the date any
disputed matters are finally resolved in writing by the Arbitrator (as
defined below). During the 30-day period following the delivery of a
Notice of Disagreement, Seller and Purchaser shall seek in good faith
to resolve in writing any differences which they may have with respect
to any matter specified in the Notice of Disagreement. If, at the end
of such 30-day period, Seller and Purchaser have not reached agreement
on such matters, the matters which remain in dispute shall be
submitted to an arbitrator (the "Arbitrator") for review and
resolution. The Arbitrator shall be Deloitte & Touche LLP, or if such
firm is unable or unwilling to act, such other nationally recognized
independent public accounting firm as shall be agreed upon by the
parties hereto in writing. The Arbitrator shall render a decision
resolving the matters in dispute within 30 days following their
submission to the Arbitrator. The fees of the Arbitrator, if
disagreements are submitted to the Arbitrator pursuant to this Section
2.04, shall be borne 50% by Purchaser and 50% by Seller.
(b) The purchase price for the Shares shall consist of the
Purchase Price plus the amount by which Closing Working Capital
exceeds $21,086,000 (the "WC Amount") or minus the amount by which
Closing Working Capital is less than the WC Amount (the Purchase Price
as so increased or decreased shall hereinafter be referred to as the
"Adjusted Purchase Price"). If the Closing Date Payment Amount is less
than the Adjusted Purchase Price, Purchaser shall, and if the Closing
Date Payment Amount is more than the Adjusted Purchase Price, Seller
8
shall, within 10 Business Days after the Statement becomes final and
binding on the parties, make payment by wire transfer in immediately
available funds of the amount of such difference, together with
interest thereon at a rate equal to the rate of interest from time to
time announced publicly by Citibank, N.A. as its base rate, calculated
on the basis of the actual number of days elapsed over 365, from the
Closing Date to the date of payment.
(c) The term "Working Capital" shall mean Current Assets minus
Current Liabilities. The terms "Current Assets" and "Current
Liabilities" shall mean current assets and current liabilities of the
Company calculated on the same basis as reflected as line items on the
Company's audited balance sheet (the "Balance Sheet") as of December
31, 1997 (included in the Historical Financial Statements). The
parties hereto acknowledge and agree that the computation of Closing
Working Capital will be done in a manner consistent with the methods
used in the preparation of the Balance Sheet and that if disagreements
should arise with respect to individual items of inclusion and/or
exclusion, the governing principle will be that the adjustment
contemplated by this Section 2.04 is intended to analyze the economic
effects of a change in Working Capital from the date of the Balance
Sheet to the Closing Date, and that such change can only be
appropriately measured when the WC Amount and the Closing Working
Capital are computed on the same basis (even if consistent treatment
as such is not the best treatment or an appropriate treatment, in
whole or in part, under the Applicable Accounting Principles).
2.05. Further Assurances. From and after the Closing, upon
written request from and at the expense of Purchaser, Seller shall
execute, acknowledge and deliver all such further acts, assurances,
deeds, assignments, transfers, conveyances and other instruments and
papers as may be reasonably required to sell, assign, transfer, convey
and deliver the Shares to Purchaser.
2.06. Cordant Actions. Cordant agrees to provide Purchaser on the
Closing Date with immediately available funds in the amount required
for Purchaser to perform its obligations under Article II.
ARTICLE III
Representations and Warranties of Seller and Xxxxxxxx
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Each of Seller and Xxxxxxxx represents and warrants to Purchaser
as follows:
3.01. Authority. Seller has the requisite power and authority
under the Trust Agreement to execute and deliver this Agreement and
the other agreements and instruments to be executed and delivered by
Seller pursuant hereto and to consummate the transactions contemplated
hereby and thereby. This Agreement has been duly executed and
delivered by Seller and constitutes, and such other agreements and
instruments when duly executed and delivered by Seller will
constitute, legal, valid and binding obligations of Seller enforceable
against Seller in accordance with their respective terms. Xxxxxxxx has
the requisite legal capacity to execute this Agreement and the other
agreements and instruments to be executed and delivered
9
by Xxxxxxxx pursuant hereto and to consummate the transactions
contemplated hereby and thereby. This Agreement has been duly executed
and delivered by Xxxxxxxx and constitutes, and such other agreements
and instruments when duly executed and delivered by Xxxxxxxx will
constitute, legal, valid and binding obligations of Xxxxxxxx
enforceable against Xxxxxxxx in accordance with their respective
terms. Xxxxxxxx hereby explicitly ratifies, adopts and acknowledges,
as the sole beneficiary of Seller, the execution, delivery and
performance of this Agreement by Seller. Except as set forth in
Schedule 3.01, the execution and delivery by Seller and Xxxxxxxx of
this Agreement and the execution and delivery by Seller and Xxxxxxxx
of such other agreements and instruments and the consummation by
Seller and Xxxxxxxx of the transactions contemplated hereby and
thereby will not violate any law, or conflict with, or result in any
breach of, constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or result in the
creation of an Encumbrance on any of the properties or assets of
Seller pursuant to, the Trust Agreement, the corporate charter or
by-laws of the Company or any material indenture, mortgage, lease,
agreement or other instrument to which Seller or the Company is a
party or by which Seller or the Company, or their respective
properties or assets, are bound. No material approval, authorization,
consent or other order or action of or filing with any Person or
court, administrative agency or other governmental body in the United
States of America is required for the execution and delivery by Seller
or Xxxxxxxx of this Agreement or such other agreements and instruments
or the consummation by Seller or Xxxxxxxx of the transactions
contemplated hereby or thereby, except for the filing of a premerger
notification report by Seller and the Company under the HSR Act and
filings by the Company under the New Jersey Industrial Site
Responsibility Act, and except as set forth in Schedule 3.01.
3.02. Ownership of the Shares. Seller has good and valid title to
the Shares, free and clear of any Encumbrances or restrictions
whatsoever. The Shares are not subject to any voting trust agreement
or other Contract, agreement, arrangement, commitment or
understanding, including any such agreement, arrangement, commitment
or understanding restricting or otherwise relating to the voting,
dividend rights or disposition of the Shares, other than this
Agreement.
3.03. Organization and Qualification of the Company. The Company
is a corporation duly organized, validly existing and in good standing
under the laws of the State of New Jersey. The Company has full power
and authority and possesses all governmental franchises, licenses,
permits, authorizations and approvals necessary to enable it to use
its corporate name and to own, lease or otherwise hold its properties
and assets and to carry on its business as presently conducted other
than such franchises, licenses, permits, authorizations and approvals
the lack of which, individually or in the aggregate, would not have a
material adverse effect on the business, assets, financial condition
or results of operations of the Company (a "Material Adverse Effect").
The Company is in good standing to do business in each jurisdiction in
which the nature of its business or the ownership, leasing or holding
of its properties makes such qualification necessary, except such
jurisdictions where the failure to so qualify would not have a
material adverse effect on the business, assets, financial condition
or results of operations of the Company. Seller has made available to
Purchaser true and complete copies of the Certificate of
Incorporation, as amended to date, and the By-laws, as in effect on
the date hereof, of the Company.
10
3.04. Capital Stock of the Company. The authorized capital stock
of the Company consists of 2,500 shares of Common Stock having no par
value, of which 225 shares, constituting the Shares, are duly
authorized, validly issued and outstanding, fully paid and
non-assessable. Seller is the sole registered holder of the Shares and
Xxxxxxxx, as its sole beneficiary, is the sole beneficial owner of the
Shares. No claim has been made or threatened to Seller or Xxxxxxxx
asserting that any Person other than Seller (or Xxxxxxxx, as its
beneficiary) is the holder or beneficial owner of, or has the right to
acquire beneficial ownership of, any stock of, or any other voting,
equity or ownership interest in the Company. The Shares have not been
issued in violation of, and are not subject to, any preemptive or
subscription rights. Except for the Shares, there are no shares of
capital stock or other equity securities of the Company outstanding.
There are no outstanding warrants, agreements, convertible or
exchangeable securities or other commitments (other than this
Agreement) pursuant to which Seller, the Company or any Person is or
may become obligated to issue, sell, transfer, purchase, return or
redeem any securities of the Company, and there are not any equity
securities of the Company reserved for issuance for any purpose.
3.05. Other Equity Interests. Except as set forth on Schedule
3.05, the Company does not directly or indirectly own any capital
stock of or other equity interest in any Person.
3.06. Historical Financial Statements; No Undisclosed
Liabilities. (a) The Historical Financial Statements, true and
complete copies of which are included in Schedule 3.06, were prepared
in all material respects in accordance with the Applicable Accounting
Principles (except that the unaudited balance sheet as of March 31,
1998 and the unaudited statement of income for the first quarter ended
March 31, 1998 do not include notes and are subject to year-end audit
adjustment) and constitute fair and reasonable presentations of the
financial position and results of operations of the Company, in all
material respects, as of the dates and for the periods set forth
therein. The Company does not have any known contingent or undisclosed
obligations or liabilities which would be required in accordance with
the Applicable Accounting Principles to be reflected in a currently
prepared balance sheet, other than obligations or liabilities (i) that
are reflected or disclosed in the Historical Financial Statements,
(ii) that are disclosed in this Agreement or the Schedules hereto,
(iii) that were incurred after December 31, 1997, in the ordinary
course of business, or (iv) that are not material to the financial
condition of the Company.
(b) The pro forma income statement attached as Schedule
3.06(b)(i) was prepared from the Company's financial records on a
basis consistent with the preparation of the statement of income for
the quarter ended March 31, 1998 that is included in the Historical
Financial Statements, except as modified in accordance with the pro
forma adjustments made thereto that are referenced in Schedule
3.06(b)(ii). The financial information included in Schedule 3.06(b)(i)
(subject to the pro forma adjustments) and in Schedule 3.06(b)(ii) is
accurate in all material respects on a pro forma basis.
3.07 Absence of Material Adverse Changes. Except as disclosed in
Schedule 3.07, and excluding any macroeconomic changes or conditions
in national or local economies affecting the business of the Company
or its customers or suppliers generally, there
11
have been no changes since December 31, 1997, through the date of this
Agreement which in the aggregate have had or are reasonably likely to
have a Material Adverse Effect. Except as disclosed in Schedule 3.07,
since December 31, 1997, the Company has not:
(i) redeemed or otherwise acquired any shares of its capital
stock or issued any capital stock or any option, warrant or right
relating thereto;
(ii) granted to any officer or plant manager any increase in
compensation, or granted any material increase in compensation to
the Company's other employees generally, except as required under
existing agreements or in the ordinary course of business
consistent with past practice;
(iii) incurred any liabilities, obligations or indebtedness
for borrowed money or guaranteed any such liabilities,
obligations or indebtedness, other than in the ordinary course of
business consistent with past practice;
(iv) cancelled any material indebtedness owed to the
Company, other than in the ordinary course of business consistent
with past practice;
(v) made any material change in any method of accounting or
accounting practice or policy;
(vi) acquired by merging or consolidating with, or by
purchasing stock or a substantial portion of the assets of, or by
any other manner, any material operating business, corporation,
partnership, association or other business organization (or
division thereof);
(vii) sold, leased or otherwise disposed of or imposed any
Encumbrance on any of its assets which are material, individually
or in the aggregate, to the Company, except in the ordinary
course of business consistent with past practice;
(viii) entered into any material lease or license of real or
personal property; or
(ix) modified, amended or terminated any lease of, or other
material agreement pertaining to, real property (except
modifications or amendments associated with renewals of leases in
the ordinary course of business).
3.08. Real Property and Improvements. Schedule 3.08 contains a
list of all real property and interests in real property owned or
leased by the Company (the "Real Property"). Except as set forth in
Schedule 3.08, the Company has good and valid title in fee simple to
the Real Property set forth in Schedule 3.08 as being owned by it, in
each case free and clear of all Encumbrances, other than Permitted
Encumbrances and any Encumbrances described in or incorporated by
reference into Schedule 3.08. The uses for which the buildings,
facilities, and other improvements located on the Real Property (the
"Improvements") are zoned do not materially restrict, or in any manner
materially impair, the use of the Improvements for purposes
12
of the businesses of the Company as conducted on the date of this
Agreement. The Company is the lessee of each of the leasehold estates
set forth in Schedule 3.08 as being leased by it, and except as set
forth in Schedule 3.08, is in possession of each of the premises
purported to be so leased. Each such lease pursuant to which such
leasehold estate is granted is valid and without any material default
thereunder by the Company, or, to the knowledge of Seller, the
landlord. Except as set forth in Schedule 3.08, there is no pending
or, to the knowledge of Seller, threatened, condemnation, eminent
domain or similar proceeding with respect to the Real Property or the
Improvements. There are no capitalized leases of real or personal
property.
3.09. Personal Property. Except as disclosed in Schedule 3.09 and
except for assets disposed of in the ordinary course of business since
December 31, 1997, the Company has good and valid title to the
machinery, equipment and other tangible personal property reflected in
the Balance Sheet as being owned by it, free and clear of all
Encumbrances, other than Permitted Encumbrances; and the Company is
the lessee of all the leasehold estates pertaining to the machinery,
equipment and other tangible personal property purported to be granted
by the capitalized leases reflected in the Balance Sheet (if any).
Each capitalized lease pursuant to which such leasehold estate is
granted is valid and without any material default thereunder by the
Company, or, to the knowledge of Seller, the lessor.
3.10. Intellectual Property Rights. Schedule 3.10 lists all the
Patents, Trademarks and Trade Names owned or licensed by the Company
which are used in and are material to the Company's businesses. Except
as otherwise disclosed in Schedule 3.10, the Company validly owns,
beneficially and of record, all the Patents, Trademarks and Trade
Names listed in Schedule 3.10, free and clear of all Encumbrances
other than Permitted Encumbrances. Except as disclosed in Schedule
3.10, no action, claim, suit or proceeding has been brought against
the Company or, to the knowledge of Seller, has been threatened
against the Company with respect to any material Intellectual Property
Rights used in the Company's businesses that challenge the Company's
right to use such Intellectual Property Rights in the manner the
Company currently uses such rights.
3.11. Litigation. Except as disclosed in Schedule 3.11, there is
no action, suit or proceeding involving more than $500,000 and there
are no related actions, suits or proceedings each involving less than
$500,000 but involving more than $2,500,000 in the aggregate, pending
or, to the knowledge of Seller, threatened against the Company in any
court, or before any Federal, state, local or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind. The Company
is not subject to any judgment, order, writ, injunction or decree of
any court or any Federal, state, local or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any arbitrator (collectively, an "Order"),
that materially affects the operation of the Company's businesses.
3.12. Contracts. Except for the Contracts listed in Schedule
3.12, the Company is not a party to any (i) contract or agreement for
the employment of any officer or employee or with any labor union or
association; (ii) bonus, pension, profit-sharing, retirement, deferred
compensation, incentive or supplementary compensation, percentage
compensation, termination
13
or severance pay, stock purchase, stock option, hospitalization,
insurance or other plan providing employee benefits; (iii) material
contract or agreement in which any Person who is an officer, director
or stockholder or of the Company has a significant economic interest;
(iv) contract or agreement relating to the borrowing or lending of
money or the guarantee of any obligations for borrowed money in excess
of $100,000, excluding endorsements made for purposes of collection in
the ordinary course of business; (v) material license or royalty
agreement; (vi) material distributor, dealer, sales agency or
advertising contract; (vii) material contract or agreement with any
government or agency or instrumentality thereof; (viii) contract or
agreement granting to any Person a preferential right to purchase any
of its material assets, properties or rights or containing a covenant
or other agreement not to compete; (ix) contract or agreement with
respect to the transportation, removal or storage of any material
amount of effluent, wastes, pollutants or other hazardous substances
or materials; (x) any other material contract or agreement not made in
the ordinary course of business. Except as disclosed in Schedule 3.12,
each of the Contracts listed in Schedule 3.12 is valid and in full
force and effect and, to the knowledge of Seller, the Company and each
other party to any such Contract has performed all material
obligations required to be performed by it thereunder, and, to
Seller's knowledge, no other party to any such Contract has taken the
position that such Contract is not enforceable against any such other
parties by the Company.
3.13. Benefit Plans. (a) Schedule 3.13 contains a list and brief
description of all material "employee pension benefit plans" (as
defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA")), "employee welfare benefit plans" (as
defined in Section 3(1) of ERISA), and any other material employee
fringe benefit plans maintained, or contributed to, by the Company
(all the foregoing being herein called "Benefit Plans"). The Company
has made available to Purchaser true, complete and correct copies of
(1) each Benefit Plan (or, in the case of any unwritten Benefit Plans,
descriptions thereof), (2) the most recent annual report on Form 5500
filed with the Internal Revenue Service with respect to any Benefit
Plan (if any such report was required), (3) each trust agreement or
other funding arrangement relating to any Benefit Plan (if applicable)
and (4) copies of the acturial valuations and other reports set forth
on Schedule 3.13.
(b) Each Benefit Plan has been administered in all material
respects in accordance with its terms. All the Benefit Plans, and the
Company with respect thereto, are in compliance in all material
respects with the applicable provisions of ERISA and the Code. Except
as disclosed in Schedule 3.13, there are no investigations by any
governmental agency, termination proceedings or other claims (except
claims for benefits payable in the normal operation of the Benefit
Plans), suits or proceedings against or involving any Benefit Plan
that would result in material liability against the Company.
(c) Except as disclosed in Schedule 3.13, all the Benefit Plans,
as adopted or as they may have been amended, as, when and to the
extent required, comply with the applicable provisions of the Tax
Equity and Fiscal Responsibility Act of 1982, the Deficit Reduction
Act of 1984, the Retirement Equity Act of 1984 and the Tax Reform Act
of 1986. Except as disclosed in Schedule 3.13, the Benefit Plans that
are pension benefit plans have received determination letters from the
Internal Revenue Service to the effect that such Benefit Plans are
qualified and
14
exempt from Federal income taxes under Sections 401(a) and 501(a),
respectively, of the Code, and no such determination letter has been
revoked nor, to the knowledge of Seller, has revocation been
threatened, nor has any such Benefit Plan been amended since the date
of its most recent determination letter or application therefor in any
respect that would adversely affect its qualification.
(d) No "prohibited transaction" (as defined in Section 4975 of
the Code or Section 406 of ERISA) has occurred which involves the
assets of any Benefit Plan and which could subject any employees of
the Company, a trustee, administrator or other fiduciary of any trusts
created under any Benefit Plan to the tax or penalty on prohibited
transactions imposed by Section 4975 of the Code or the sanctions
imposed under Title I of ERISA. Except as disclosed in Schedule 3.13,
none of the Benefit Plans has been terminated nor have there been any
"reportable events" (as defined in Section 4043 of ERISA and the
regulations thereunder) with respect thereto.
(e) Each Benefit Plan subject to Title IV of ERISA has paid all
premiums when due to the Pension Benefit Guaranty Corporation. No
Benefit Plan has applied for or received a waiver of the minimum
funding standards imposed by Section 412 of the Code, and no Benefit
Plan has an "accumulated funding deficiency" within the meaning of
Section 412(a) of the Code as of the most recent plan year. The
Company has made available to Purchaser the most recent actuarial
report or valuation with respect to each Benefit Plan that is a
"defined benefit plan" (as defined in Section 3(35) of ERISA). The
information supplied to the actuary for use in preparing those reports
or valuations was complete and accurate in all material respects and
Seller has no reason to believe that the conclusions expressed in
those reports or valuations are incorrect in any material respect.
(f) Except to the extent required under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA"), the Company
does not maintain, contribute to, or have any liability or obligation
to contribute to any funded or unfunded medical, health or life
insurance plan or similar arrangement for present or future retirees
or present or future terminated employees.
(g) All contributions required to be made by the Company to each
Multiemployer Plan and Multiemployer Welfare Plan have been made when
due.
(h) The Company is not a member of a controlled group of
corporations, within the meaning of Section 414(b) of the Code, is not
a member of a group of trades or businesses under common control,
within the meaning of Section 414(c) of the Code, and is not a member
of an affiliated service group, within the meaning of Section 414(m)
and (o) of the Code.
(i) The execution of this Agreement and the consummation of the
transaction contemplated hereby do not result in the acceleration or
early vesting of any payments or benefits under any Benefit Plan or in
the payment of any "excess parachute payments" within the meaning of
Section 280G of the Code.
15
3.14. Taxes. The Company has timely filed or caused to be filed
with the appropriate taxing authorities all Tax Returns required to be
filed by the Company through the date hereof and will timely file all
Tax Returns required to be filed on or prior to the Closing Date, in
each case, subject to applicable extensions. Except as disclosed in
Schedule 3.14, no outstanding or unresolved deficiency for any Tax or
claim for additional Taxes by any taxing authority has been proposed,
asserted or assessed in writing against the Company and no audit,
action, suit or claim is currently pending against the Company in
respect of any Tax or assessment. Except as disclosed on Schedule
3.14, there are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any material Tax Returns
required to be filed by or with respect to the Company, and the
Company has not requested any extension of time within which to file
any Tax Return (with respect to Tax Returns that have not yet been
filed). Except as disclosed on Schedule 3.14, the Company is not a
party to any agreement or arrangement (written or oral) providing for
the allocation or sharing of Taxes or Tax benefits. For Federal Income
Tax purposes the Company is an "S Corporation" as defined in Section
1361(a) of the Code and has been an S Corporation for each taxable
year since December 31, 1987. In addition, the Company has taken all
required steps to be taxed as an S Corporation under applicable state
income Tax law in Ohio, Pennsylvania, Arizona and North Carolina.
3.15. Environmental Matters. Except as set forth in Schedule
3.15, to Seller's knowledge: (i) the Company is in compliance in all
material respects with all Environmental Laws applicable to it and its
properties, (ii) the Company has obtained and is in compliance in all
material respects with all Environmental Permits, and the sale of the
Shares hereunder will not cause a termination of any such
Environmental Permits, (iii) the Company does not generate, use,
store, transport or dispose of any Hazardous Materials in the course
of conducting its business operations in compliance in all material
respects with all applicable Environmental Laws, (iv) neither the
Company nor its Environmental Affiliates has caused, had or suffered
any material spills, releases or threatened releases of Hazardous
Materials at any of its Real Properties or Former Facilities or which
affect any adjacent parcels of land, (v) all garbage, wastes, refuse,
byproducts, Hazardous Materials and other potential contaminants
produced by the Company in the course of conducting its business
operations are and have been disposed of by properly licensed waste
removal companies, or other third parties or governmental authorities,
in compliance in all material respects with all requirements
applicable to the Company under Environmental Laws regulating such
activities, (vi) none of the Real Properties or Former Facilities
(including the soil, subsoil and groundwater at or under such sites)
contains any Hazardous Materials in amounts exceeding prescribed
levels under any Environmental Laws which could require the Company or
any Environmental Affiliate to incur any material clean-up or
remediation expenses or liabilities not covered by insurance or other
third party indemnities, (vii) there are no unregistered underground
storage tanks located under any of the Real Properties or Former
Facilities that are required to be registered under any applicable
Environmental Laws, (viii) no notice has been received by the Company
identifying the Company or any Environmental Affiliate as a
"potentially responsible party", or requesting information under
CERCLA or any similar state statutes, with respect to any current
investigation, suit, proceeding or other regulatory activity of any
applicable Federal or state environmental agency (whether
16
with respect to the Company, any Environmental Affiliate, the Real
Properties, the Former Facilities or otherwise), (ix) there are no
pending or threatened investigations, suits, administrative actions,
demands, claims, hearings or proceedings against the Company or any
Environmental Affiliate alleging the violation of any Environmental
Laws, (x) there are no consent decrees, orders, judgments or
agreements with any Federal or state environmental agencies in effect
that materially restrict the Company's operations, or the use of the
Real Properties in connection with the Company's operations, as
currently conducted and (xi) none of the Real Properties or Former
Facilities is listed or proposed for listing on the National
Priorities List or is listed on the Comprehensive Environmental
Response, Compensation, Liability Information System List promulgated
pursuant to CERCLA, except in each case for violations of or
exceptions to the foregoing which would not in the aggregate have or
cause a Material Adverse Effect.
3.16. Transactions with Affiliates. Since December 31, 1996,
except as disclosed in Schedule 3.16, the Company has not purchased,
acquired, leased or licensed any property or services from, or sold,
transferred, leased or licensed any property or services to, any
Affiliate, or any officer or director of the Company, other than on an
arm's length basis in the ordinary course of business except where the
amount involved (for individual matters or related matters) is less
than $60,000.
3.17. Insurance. Schedule 3.17 contains a list and description of
all material policies of property, fire, liability, workers'
compensation and all other types of insurance maintained by the
Company. As of the date hereof, all such policies are in full force
and effect and all premiums due thereon have been paid.
3.18. Accuracy. To Seller's knowledge, the required disclosures
made in this Agreement and the schedules attached hereto are complete
and accurate in all material respects, and the scheduled disclosures
do not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements or facts
contained therein not misleading.
ARTICLE IV
Representations and Warranties of Purchaser and Cordant
-------------------------------------------------------
Each of Purchaser and Cordant represents and warrants to Seller
as follows:
4.01. Organization. Each of Purchaser and Cordant is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization.
4.02. Authority. Each of Purchaser and Cordant has the full
corporate power and authority to execute and deliver this Agreement
and the other agreements and instruments to be executed and delivered
by Purchaser or Cordant pursuant hereto and to consummate the
17
transactions contemplated hereby and thereby. All corporate acts and
other proceedings required to be taken by or on the part of Purchaser
or Cordant to authorize such execution, delivery and consummation have
been duly and properly taken. This Agreement has been duly executed
and delivered by Purchaser and Cordant and constitutes, and such other
agreements and instruments when duly executed and delivered by
Purchaser or Cordant will constitute, legal, valid and binding
obligations of Purchaser and Cordant enforceable against Purchaser and
Cordant in accordance with their respective terms. The execution and
delivery by Purchaser and Cordant of this Agreement and the execution
and delivery by Purchaser or Cordant of such other agreements and
instruments and the consummation by Purchaser or Cordant of the
transactions contemplated hereby and thereby will not violate any law,
or conflict with, result in any breach of, constitute a default (or an
event which with notice or lapse of time or both would become a
default) under, or result in the creation of an Encumbrance on any of
the properties or assets of Purchaser or Cordant pursuant to, the
corporate charter or by-laws of Purchaser or Cordant or any indenture,
mortgage, lease, agreement or other instrument to which Purchaser or
Cordant is a party or by which their respective properties or assets
are bound. No material approval, authorization, consent or other order
or action of or filing with any Person or court, administrative agency
or other governmental body in the United States of America is required
for the execution and delivery by Purchaser or Cordant of this
Agreement and the execution and delivery by Purchaser or Cordant of
such other agreements and instruments or the consummation by Purchaser
and Cordant of the transactions contemplated hereby or thereby, except
for the filing of a premerger notification report by Purchaser and
Cordant under the HSR Act and except as set forth in Schedule 4.02.
4.03. Available Funds. Purchaser has available to it, without
requiring the prior consent, approval or other discretionary action of
any third party, cash to pay the full amount of the Purchase Price.
4.04. No Legal Proceedings. There is no action, suit, order,
judgment or proceeding pending or, to the knowledge of Purchaser or
Cordant, threatened against or affecting Purchaser or Cordant that,
individually or when aggregated with one or more other actions, suits,
orders, judgments or proceedings, has or might reasonably be expected
to have a material adverse effect on Purchaser's or Cordant's ability
to perform any of its obligations hereunder or under any of the other
agreements and instruments to be executed and delivered by Purchaser
or Cordant in connection herewith.
4.05. Securities Act of 1933. The Shares purchased by Purchaser
pursuant to this Agreement are being acquired for investment only and
not with a view to any public distribution thereof, and Purchaser will
not offer to sell or otherwise dispose of the Shares so acquired by it
in violation of the registration requirements of the Securities Act of
1933.
18
ARTICLE V
Further Covenants and Agreements
--------------------------------
5.01. Conduct of Business. Except as otherwise expressly provided
herein, from and after the date of this Agreement and until the
Closing, Seller and Xxxxxxxx will cause the Company to operate its
business only in the ordinary course consistent with past practice in
all material respects and will promptly notify Purchaser of any
material adverse change in the business, assets, financial condition
or results of operations of the Company. From the date hereof to the
Closing, none of Xxxxxxxx, Seller nor the Company will take any action
or engage in any transaction which would render the representations
and warranties in Article III inaccurate in any material respect as of
the Closing Date. In addition, except as set forth on Schedule 5.01 or
otherwise expressly permitted by the terms of this Agreement, each of
Xxxxxxxx and Seller will cause the Company not to do any of the
following without the prior written consent of Purchaser (such consent
not to be unreasonably withheld):
(i) amend its Certificate of Incorporation or By-laws;
(ii) redeem or otherwise acquire any shares of its capital
stock or issue any capital stock or any option, warrant or right
relating thereto;
(iii) grant to any officer or plant manager any increase in
compensation or any severance or change of control benefits, or
grant any material increase in compensation to the Company's
other employees generally, except as may be required under
existing agreements or in the ordinary course of business
consistent with past practice;
(iv) incur any liabilities, obligations or indebtedness for
borrowed money or guarantee any such liabilities, obligations or
indebtedness, other than in the ordinary course of business
consistent with past practice;
(v) cancel any material indebtedness owed to the Company,
other than in the ordinary course of business consistent with
past practice;
(vi) make any material change in any method of accounting or
accounting practice or policy;
(vii) acquire or agree to acquire by merging or
consolidating with, or by purchasing stock or a substantial
portion of the assets of, or by any other manner, any material
operating business, corporation, partnership, association or
other business organization (or division thereof);
(viii) sell, lease or otherwise dispose of, or agree to
sell, lease or otherwise dispose of, any of its assets which are
material, individually or in the aggregate, to the Company,
except in the ordinary course of business consistent with past
practice;
(ix) enter into any lease of real property;
19
(x) modify, amend or terminate any lease of, or other
material agreement pertaining to, real property (except
modifications or amendments associated with renewals of leases in
the ordinary course of business);
(xi) make capital expenditures or purchases of machinery and
equipment in excess of $1,000,000 in the aggregate;
(xii) enter into or modify any collective bargaining
agreements; or
(xiii) agree, whether in writing or otherwise, to do any of
the foregoing.
5.02. Access; Information; Confidentiality. From the date hereof
to and including the Closing Date, Xxxxxxxx, Seller and the Company
shall afford to the officers, employees, attorneys, accountants and
other authorized representatives of Purchaser reasonable access,
during normal business hours and with reasonable notice, to the
offices, plants, properties, books and records of the Company in order
that Purchaser may have the full opportunity to make such legal,
financial, accounting and other reviews or investigations of the
Company as Purchaser shall desire to make. Purchaser covenants and
agrees, and shall cause each of its officers, employees, attorneys,
accountants and other authorized representatives, to treat all
information obtained or developed by them concerning the Company in
accordance with the Confidentiality Agreement dated as of February 24,
1998 between Cordant and the Company. Purchaser also covenants and
agrees to comply with all other confidentiality undertakings
heretofore agreed to between Purchaser and Seller, its Affiliates or
their representatives relating to the Company or the transactions
contemplated by this Agreement.
5.03. Consents and Conditions to Closing. From the date hereof to
and including the Closing Date, each of the parties hereto agrees (i)
to take all reasonable actions necessary to obtain (and to cooperate
with each other in obtaining) all consents, authorizations, orders,
exemptions and approvals of any third parties, including governmental
bodies, required to be obtained by it in connection with any of the
transactions contemplated hereby; provided that no party shall be
required to make any material payments or dispose of any material
assets in order to obtain any such consents, authorizations, orders,
exemptions or approvals, (ii) to take all reasonable actions necessary
to comply promptly with all legal requirements which may be imposed on
or applicable to it with respect to the Closing (including furnishing
all information required under the HSR Act) and (iii) to promptly
cooperate with and furnish information to each other in connection
with any such legal requirements. Seller and Purchaser each promptly
(but in no event later than three Business Days) after the execution
and delivery of this Agreement, shall file their completed premerger
notification report under the HSR Act.
5.04. Notification of Certain Matters. Seller shall give prompt
written notice to Purchaser, and Purchaser shall give prompt written
notice to Seller, as the case may be, of (i) the occurrence, or
failure to occur, of any event that would be likely to cause any
representation or warranty by such notifying party contained in this
Agreement to be untrue or inaccurate in any material respect at any
time between or including the date of this Agreement and the Closing
20
Date, (ii) any knowledge of or discovery by the notifying party of the
inaccuracy of any representation or warranty in any material respect
by the non-notifying party contained in this Agreement and (iii) any
failure of the non-notifying party to comply with or satisfy, in any
material respect, any covenant condition or agreement to be complied
with or satisfied by it under this Agreement. For purposes of this
Section 5.04, Purchaser's and Cordant's knowledge or discovery shall
mean the knowledge or discovery by any of the individuals listed on
Schedule 5.04.
5.05. Insurance. Seller agrees to keep, or cause the Company to
keep, all insurance policies set forth in Schedule 3.17, or
replacements thereof, in full force and effect through the close of
business on the Closing Date. Purchaser agrees to keep, or to cause
the Company to keep, the same or substantially similar insurance
policies with regard to environmental risks, in full force and effect
after the Closing Date until the later of the fifth anniversary hereof
and the resolution of all indemnification claims under Section
8.02(b).
5.06. Xxxxxxxx Name. Promptly following the Closing Date,
Purchaser shall cause the Company to change its corporate name in its
certificate of incorporation and eliminate all uses of the name
"Xxxxxxxx" or its derivatives in all signage, correspondence, new
Contracts, corporate names or registrations, assumed names,
trademarks, tradenames, service marks or logos, in each case within 5
years after the Closing Date.
5.07. Prohibition of Solicitation. From the date hereof through
the Closing or the earlier termination of this Agreement, each of
Xxxxxxxx and Seller shall not, and shall cause the Company and each of
their respective directors, officers, shareholders, affiliates,
agents, advisers and other representatives (including investment
bankers) not to, directly or indirectly, enter into, solicit or
initiate any discussions or negotiations with, or encourage or respond
to any inquiries or proposals by, or participate in any negotiations
with, or provide any information to, or otherwise cooperate in any
other way with, any Person, other than Purchaser and its directors,
officers, shareholders, affiliates, agents, advisers and other
representatives, concerning any sale of all or a portion of the
Company's assets, any shares of capital stock of the Company, or any
merger, consolidation, liquidation, dissolution or similar transaction
involving the Company (each such transaction being referred to herein
as a "Proposed Acquisition Transaction"). Xxxxxxxx and Seller will
immediately notify Purchaser if any discussions or negotiations are
sought to be initiated, any inquiry or proposal is made, or any
information is requested with respect to any Proposed Acquisition
Transaction and notify Purchaser of the terms of any proposal which it
may receive after the date hereof in respect of any such Proposed
Acquisition Transaction, including without limitation the identity of
the prospective purchaser or soliciting party.
5.08. Pay-Off of Debt. Xxxxxxxx and Seller shall take all action
necessary to ensure that, as of the Closing Date, the Company shall
not have any indebtedness for borrowed money, guarantees or agreements
to guarantee any indebtedness for borrowed money.
5.09. Related Party Obligations. Xxxxxxxx and Seller shall take
all action necessary to ensure that, as of the Closing Date, the
Company shall not have any obligations or
21
any liabilities, directly or indirectly, to directors or other
Affiliates. On or prior to the Closing Date, each of Xxxxxxxx and
Seller shall have repaid all obligations owed by them (if any) to the
Company in full.
5.10. Resignation of Officers and Directors. On or prior to the
Closing, Xxxxxxxx and Seller shall cause the Company to deliver to
Purchaser evidence satisfactory to Purchaser of the resignation of all
officers and directors of the Company (other than those individuals
designated by Purchaser).
ARTICLE VI
Conditions Precedent to Obligations of Purchaser and Cordant
------------------------------------------------------------
All obligations of Purchaser and Cordant to effect the Closing
hereunder are, subject to the satisfaction, at the Closing, of each of the
following conditions, any of which may be waived by Purchaser and Cordant:
6.01. Opinion of Counsel. Purchaser shall have received the
favorable opinions of Xxxxxxx, Xxxxxxxx & Kotel, a Professional
Corporation, special New York counsel for Seller and Xxxxxxxx and
Cavitch, Familo, Xxxxxx & Xxxxxxx Co., L.P.A., special Ohio counsel
for Seller, addressed to Purchaser and dated the Closing Date,
substantially in the forms of Exhibit 6.01.
6.02. Performance by Seller. All the terms, covenants, agreements
and conditions of this Agreement to be complied with and performed by
Seller on or before the Closing shall have been complied with and
performed in all material respects.
6.03. Representations and Warranties. The representations and
warranties made by Seller in this Agreement shall have been true and
correct in all material respects at the date hereof and as of the
Closing with the same force and effect as though all such
representations and warranties had been made as of the Closing;
provided that each of the representations and warranties which already
are qualified by materiality must have been true and correct in all
respects as of the Closing.
6.04. No Injunctions. There shall not be in effect any injunction
or restraining order issued by a court of competent jurisdiction
against the consummation of the transactions contemplated by this
Agreement; and the waiting period under the HSR Act applicable to the
consummation of the transactions contemplated by this Agreement,
including any extensions of such waiting period, shall have expired or
been terminated.
6.05. Seller's Certificate. Purchaser shall have received from
Seller, in form and substance reasonably satisfactory to Purchaser and
its counsel, a certificate of Seller, dated the Closing Date, of
Seller, confirming the satisfaction of the conditions set forth in
Sections 6.02 and 6.03.
22
6.06. Secretary's Certificate. Purchaser shall have received from
the Company, in form and substance reasonably satisfactory to
Purchaser and its counsel, a certificate, dated the Closing Date, of
the Secretary or an Assistant Secretary of the Company, certifying the
Certificate of Incorporation and Bylaws of the Company.
6.07. Consents. All material licenses, consents or permits from
any governmental authority or other persons, including pursuant to the
New Jersey Industrial Site Remediation Act, that are necessary for the
consummation of the transactions contemplated hereby shall have been
obtained.
6.08. Ancillary Agreements. Xxxxxxxx shall have executed and
delivered the Xxxxxxxx Non-Competition Agreement.
6.09. Transfer of All Capital Stock. The transfer of the Shares
to Purchaser hereunder shall constitute the transfer of 100% of the
capital stock of the Company to Purchaser; provided that if Purchaser
waives the condition set forth in this Section 6.09, Purchaser shall
not be entitled to seek indemnification for a failure of this
condition to the extent that Purchaser knows of such failure.
ARTICLE VII
Conditions Precedent to Obligations of Xxxxxxxx and Seller
----------------------------------------------------------
All obligations of Xxxxxxxx and Seller to effect the Closing
hereunder are, subject to the satisfaction, at the Closing of each of the
following conditions, any of which may be waived by Xxxxxxxx and Seller:
7.01. Opinion of Counsel. Seller shall have received the
favorable opinions of Xxxxxx Xxxxx, Esq., general counsel for Cordant,
and Xxxxxx & Xxxxxxx, counsel for Purchaser, addressed to Seller and
Xxxxxxxx dated the Closing Date, substantially in the forms of Exhibit
7.01.
7.02. Performance by Purchaser. All the terms, covenants,
agreements and conditions of this Agreement to be complied with and
performed by Purchaser on or before the Closing shall have been
complied with and performed in all material respects.
7.03. Representations and Warranties. The representations and
warranties made by Purchaser in this Agreement shall have been true
and correct in all material respects at the date hereof and as of the
Closing with the same force and effect as though all such
representations and warranties had been made as of the Closing;
provided that each of the representations and warranties which already
are qualified by materiality must have been true and correct in all
respects as of the Closing.
23
7.04. No Injunctions. There shall not be in effect any injunction
or restraining order issued by a court of competent jurisdiction
against the consummation of the sale and purchase of the Shares
pursuant to this Agreement; and the waiting period under the HSR Act
applicable to the consummation of the transactions contemplated by
this Agreement, including any extensions of such waiting period, shall
have expired or been terminated.
7.05. Officer's Certificate. Seller shall have received from
Purchaser, in form and substance reasonably satisfactory to Seller and
its counsel, a certificate, dated the Closing Date, of the President
or any Vice President of Purchaser, certifying as to the satisfaction
of the conditions set forth in Sections 7.02 and 7.03.
7.06. Purchaser's Secretary's Certificate. Seller shall have
received from Purchaser, in form and substance reasonably satisfactory
to Seller and its counsel, a certificate, dated the Closing Date, of
the Secretary or an Assistant Secretary of Purchaser, (i) certifying
all documents evidencing the corporate actions of Purchaser
authorizing the transactions contemplated hereby and the execution,
delivery and performance by Purchaser of this Agreement and the
documents contemplated hereby, (ii) certifying the Certificate of
Incorporation and Bylaws of Purchaser and (iii) containing an
incumbency certificate regarding the officers authorized to sign this
Agreement and the other documents contemplated hereby.
7.07. Cordant's Secretary's Certificate. Seller shall have
received from Cordant, in form and substance reasonably satisfactory
to Seller and its counsel, a certificate, dated the Closing Date, of
the Secretary or an Assistant Secretary of Cordant, (i) certifying all
documents evidencing the corporate actions of Cordant authorizing the
transactions contemplated hereby and the execution, delivery and
performance by Cordant of this Agreement and the documents
contemplated hereby, (ii) certifying the Certificate of Incorporation
and Bylaws of Cordant and (iii) containing an incumbency certificate
regarding the officers authorized to sign the Cordant Performance
Guarantee and any other document contemplated hereby.
7.08. Consents. All material licenses, consents or permits from
any governmental authority or other persons, including pursuant to the
New Jersey Industrial Site Remediation Act, that are necessary for the
consummation of the transactions contemplated hereby shall have been
obtained.
7.09. Non-Competition Agreement. Purchaser shall have executed
and delivered the Xxxxxxxx Non-Competition Agreement, and shall have
made the payment to Xxxxxxxx required thereunder.
ARTICLE VIII
Survival and Indemnification
----------------------------
8.01. Survival of Representations, Etc.; Exclusive Remedies. The
representations, warranties, covenants and agreements contained in
this Agreement, and in any
24
agreements, certificates or other instruments delivered pursuant to
this Agreement, shall survive the Closing and shall remain in full
force and effect, but subject to all limitations and other provisions
contained in this Agreement (including Section 8.05). The
representations and warranties contained in this Agreement are
exclusive and the parties hereto confirm that they have not relied
upon any other representation or warranty as an inducement to enter
into this Agreement and the transactions contemplated hereby (even
though information not represented and warranted to may have been, or
may hereafter be, given to or obtained or developed by one or both of
the parties hereto pertaining to the Company, the transactions
contemplated hereby or otherwise). Subject to the next sentence
hereof, the remedies contained in this Article VIII shall be the sole
recourse of the parties hereto and their respective Affiliates for all
losses, liabilities, claims, damages or expenses related to or
arising, directly or indirectly, out of this Agreement, the
transactions contemplated hereby or otherwise arising at law, under
any statute or in equity, and each party hereto has waived any and all
rights, claims, causes of action and other remedies it or its
Affiliates may have against the other relating to the subject matter
of this Agreement other than the remedies expressly provided in this
Article VIII. No party hereto shall be deemed to have waived any
rights, claims, causes of action or remedies if and to the extent such
rights, claims, causes of action or remedies may not be waived under
applicable law or fraud is proven on the part of a party by another
party hereto. The right to indemnification or other remedy based on
such representations, warranties, covenants, and agreements will not
be affected by any investigation conducted with respect to, or any
knowledge acquired (or capable of being acquired) at any time, whether
before or after the execution and delivery of this Agreement or the
Closing, with respect to the accuracy or inaccuracy of or compliance
with, any such representation, warranty, covenant or agreement. The
waiver of any condition based on the accuracy of any representation or
warranty, or on the performance of or compliance with any covenant or
agreement, will not affect the right to indemnification or other
remedy based on such representations, warranties, covenants and
agreements.
8.02. Indemnification by Seller and Xxxxxxxx. (a) Subject to the other
provisions of this Article VIII, Seller and Xxxxxxxx, jointly and
severally, hereby agree to indemnify and hold Purchaser and its
Affiliates, officers, directors, employees, agents and representatives
harmless from and against any and all claims, demands, orders,
allegations, actions, damages, liabilities, including liabilities
arising under principles of strict or joint and several liability,
liens, losses or other obligations whatsoever, together with costs and
expenses, including fees and disbursements of counsel and expenses of
investigation (collectively, "Losses"), arising out of, based upon or
caused by (i) the inaccuracy of any representation or the breach of
any warranty of Seller or Xxxxxxxx contained in this Agreement or in
any agreement, certificate or other instrument delivered by Seller or
Xxxxxxxx pursuant to this Agreement or (ii) any breach or
nonperformance by Seller or Xxxxxxxx of any of its covenants or
agreements contained in this Agreement or in any agreement,
certificate or other instrument delivered by Seller or Xxxxxxxx
pursuant to this Agreement; PROVIDED, HOWEVER, that Purchaser and its
Affiliates and their respective, officers, directors, employees,
agents and representatives shall be entitled to indemnification under
Section 8.02(a)(i) or Section 8.02(a)(ii) due to a breach of Section
5.01 only if and to the extent the aggregate amount of all Losses
indemnified against under Section 8.02(a)(i) or Section 8.02(a)(ii)
due to a breach of Section 5.01 shall exceed $1,000,000, and in no
event shall such indemnification exceed in the aggregate $10,000,000;
25
provided that the limitation set forth in this Section 8.02(a) shall
not apply to a breach of Seller's obligation to transfer 100% of the
capital stock of the Company to Purchaser at the Closing; PROVIDED
FURTHER, HOWEVER, that any indemnification relating to Taxes or
Section 3.14 shall be governed solely by Article IX and any
indemnification relating to Environmental Laws, Hazardous Materials or
Section 3.15 shall be governed solely by Section 8.02(b), and
accordingly no claims may be made in respect of such matters or the
representations and warranties set forth in such Sections under this
Section 8.02(a).
(b) Special Environmental Indemnification. Subject to the other
provisions of this Article VIII, Seller and Xxxxxxxx hereby agree to
indemnify and hold Purchaser and its Affiliates, officers, directors,
employees, agents and representatives harmless from and against any
Environmental Losses only on the terms and subject to conditions as
follows: (i) for aggregate Environmental Losses up to $2,000,000,
there shall be no indemnification obligation of Seller and Xxxxxxxx
under this Article VIII; (ii) for aggregate Environmental Losses
incurred prior to the fifth anniversary of the Closing Date in excess
of $2,000,000 but less than $6,000,000, there shall be full
indemnification by Seller and Xxxxxxxx for such excess amounts
pursuant to this Article VIII; (iii) for aggregate Environmental
Losses incurred prior to the fifth anniversary of the Closing Date in
excess of $6,000,000 but less than $10,000,000, there shall be
indemnification for such excess amounts by Seller and Xxxxxxxx under
this Article VIII limited to 50% of such Environmental Losses in
excess of $6,000,000 and (iv) for aggregate Environmental Losses in
excess of $10,000,000, or any Environmental Losses incurred after the
fifth anniversary of the Closing Date, there shall be no
indemnification obligation of Seller and Xxxxxxxx under this Article
VIII or otherwise. The obligations set forth in this Section 8.02(b)
shall be limited to amounts paid to third parties or reimbursement to
the Company for such amounts, in each case as specifically described
in the definition of Environmental Losses; PROVIDED, HOWEVER, that
with respect to products or services delivered or performed prior to
the fifth anniversary of the Closing Date, the obligations set forth
in this 8.02(b) shall be available even after the fifth anniversary of
the Closing Date so long as the expenses for such products or services
are paid in the ordinary course thereafter within the customary
billing cycles of the applicable third party.
8.03. Indemnification by Purchaser and Cordant. Subject to the
other provisions of this Article VIII, Purchaser and Cordant each
hereby jointly and severally agree to indemnify and hold Xxxxxxxx,
Seller, their Affiliates and their respective officers, directors,
employees, agents and representatives harmless, from and against any
and all Losses arising out of, based upon or caused by (i) the
inaccuracy of any representation or the breach of any warranty of
Purchaser or Cordant contained in this Agreement or in any agreement,
certificate or other instrument delivered by Purchaser pursuant to
this Agreement, (ii) any breach or nonperformance by Purchaser or
Cordant of any of their respective covenants or agreements contained
in this Agreement or in any agreement, certificate or other instrument
delivered by Purchaser or Cordant pursuant to this Agreement, (iii)
Purchaser's ownership of the Company or the operations of the Company
after the Closing Date or (iv) any failure by the Company after the
Closing Date to perform and discharge all its obligations under any
Contracts or other undertakings that were in effect and known to
Purchaser prior to the Closing Date. In the event any claims are
asserted against any current or former shareholders (direct or
indirect), officers, directors or employees of
26
the Company in respect of Environmental Losses, Purchaser and the
Company shall indemnify and hold harmless such shareholders, officers,
directors and employees, subject to the provisions of Section 8.02(b)
that may render Seller (rather than Purchaser and the Company) liable
for some or all of such Environmental Losses.
8.04. Notice; Cooperation; Defense; Etc. The indemnified party
agrees to give the indemnifying party prompt written notice of any
action, claim, demand, discovery of fact, proceeding or suit
(collectively, "Claims") for which such indemnified party intends to
assert a right to indemnification under this Agreement; PROVIDED,
HOWEVER, that failure to give such notification after such notice is
required shall not adversely affect the indemnified party's
entitlement to indemnification hereunder except to the extent that the
indemnifying party shall have been actually prejudiced as a result of
such failure. The indemnified party shall take all reasonable or
necessary steps to resolve, defend or cooperate in the defense of such
Claims, including retaining and providing to the indemnifying party
all documents, records and other information that may be relevant to
such Claims and making employees available to the extent reasonably
requested to fully cooperate in the resolution or defense of such
Claims and provide any additional information (including explanations
and interpretations of any other materials or information provided)
that they are able to provide with respect thereto. The indemnifying
party shall have the right to participate jointly with the indemnified
party in the indemnified party's defense, settlement or other
disposition of any Claim and, with respect to any Claim that is not
likely to result in the indemnified party's becoming subject solely to
injunctive or other similar relief, the indemnifying party shall have
the sole right (but not the obligation) to defend, settle or otherwise
dispose of such Claim on such terms as the indemnifying party, in its
sole discretion, shall deem appropriate. The indemnifying party shall
obtain the written consent of the indemnified party, which shall not
be unreasonably withheld or delayed, prior to ceasing to defend any
Claim if it has theretofore elected to exercise its sole right to
defend, settle or otherwise dispose of such Claim.
8.05. Time Limitations; Recoverable Damages. Except as may
elsewhere be specifically provided, representations, warranties,
covenants and obligations in this Agreement and any other certificate
or document delivered pursuant to this Agreement will survive the
Closing; PROVIDED, HOWEVER, that notwithstanding anything to the
contrary contained herein, the obligation of Seller or Xxxxxxxx to
indemnify or otherwise hold harmless Purchaser, or its Affiliates or
any of their respective officers, directors, employees, agents or
representatives (i) for any Losses arising out of, based upon or
caused by the inaccuracy of any representation or the breach of any
warranty which survives the Closing shall, except as otherwise
provided in the next sentence, terminate at 11:59 p.m., New York City
time, on the first anniversary of the Closing Date, (ii) for any
Environmental Losses pursuant to Section 8.02(b) shall, except as
otherwise provided in the next sentence, terminate at 11:59 p.m., New
York City time, on the fifth anniversary of the Closing Date, (iii)
for any Losses relating to Taxes or Section 3.14 shall survive as set
forth in Article IX and (iv) for any Losses resulting from the breach
of Seller's obligations to transfer 100% of the capital stock of the
Company to Purchaser shall survive until the expiration of the
applicable statute of limitations. Claims (with all relevant and
necessary information and particulars to support such Claims) properly
made in accordance with the provisions of this Article VIII on or
prior to the expiration of the applicable survival period
27
specified above may continue to be asserted and shall be indemnified
against by Seller (subject to any other applicable limitations
herein), but such Claims may not be supplemented, expanded, amended or
modified after the expiration of such time period in a manner that
fundamentally changes the Claim without the prior written consent of
Seller. Any amounts required to be paid as damages or indemnification
by Seller or Xxxxxxxx hereunder shall be limited to the actual,
reasonable, direct and reasonably foreseeable damages sustained by the
indemnified party with respect to the Claim in question, net of
available insurance (which the Company and the indemnified party shall
use their best efforts to pursue at the Company's expense) except
that, in the event that the Losses would have been within the scope of
coverage provided in an insurance policy that the Company had in
effect at the Closing Date ("Applicable Insurance Coverage") and, at
the time the Company suffers the Losses, Purchaser or the Company
carries Applicable Insurance Coverage (or comparable insurance) with a
higher deductible than that carried by the Company for such Applicable
Insurance Coverage on the Closing Date, or if Purchaser and the
Company have no Applicable Insurance Coverage (or comparable
insurance), then the amount of indemnification hereunder shall be
reduced by (a) an amount equal to the excess, if any, of (i) the
amount of the higher deductible or the amount of the indemnification
claim, whichever is less, over (ii) the amount of the Closing Date
deductible or (b) if Purchaser and the Company have no Applicable
Insurance Coverage (or comparable insurance), the amount of the
indemnification claim in excess of the Closing Date deductible,
respectively. In no event shall any damages or indemnification be
claimed, assessed or required to be paid by Seller or Xxxxxxxx in
respect of any actual or alleged lost profits, lost opportunities or
other consequential or speculative damages sustained by Purchaser, its
Affiliates or their respective officers, directors, employees, agents
or representatives. Subject to the foregoing, the term "Losses" is not
limited to matters asserted by third parties if the indemnified party
can otherwise prove and calculate its damages in the absence of a
third party claim, and accordingly payments by an indemnitee shall not
be (except in the case of claims under Section 8.02 (b)) a condition
precedent to recovery if damages can be otherwise proven.
ARTICLE IX
Taxes
-----
9.01. Taxes. (a) Allocation of Responsibility. From and after the
Closing Date, Seller shall pay (or indemnify Purchaser with respect
to) (without duplication of amounts otherwise payable) any Taxes
(excluding any penalties arising from any act or omission by Purchaser
or, after the Closing, the Company) payable by the Company, including
any Taxes, other than Taxes that are subject to Section 9.02, that may
arise by reason of an election under Section 338(h)(10) of the Code
(or any similar provision under any state or local law, or in the case
of New Jersey in respect of a deemed Section 338 election) (i) for all
taxable periods ending on or prior to the Closing Date, and (ii) for
all taxable periods beginning on or prior to the Closing Date and
ending after the Closing Date, for that portion of any such taxable
period up to and including the Closing Date, determined in the manner
provided in Section 9.01(m) and (iii) payable as a result of any
breach of any representation or warranty in Section 3.14 or any
covenant made by Seller in this Article IX. Notwithstanding anything
to the contrary in this
28
Agreement, no payment will be made hereunder by Seller with respect to
Taxes which have been paid by Seller or the Company on or prior to the
Closing Date. After the Closing Date, the Company and Purchaser shall
be responsible for all Taxes of the Company which are not expressly
described as being the responsibility of Seller in the first sentence
of this Section 9.01(a). Any Taxes payable by Seller pursuant to this
Section 9.01(a) shall be paid within thirty days following Purchaser's
request therefor or, if Seller contests the assessment of such Taxes,
Seller shall wire transfer funds to Purchaser for value no later than
3 days before such payments are due (after giving effect to available
extensions or suspension periods arising from the initiation of the
contest). In the event Purchaser has withheld a portion of the
Purchase Price to pay such Tax obligations in accordance with Section
9.01(k), Purchaser shall give Seller credit for such withholding when
making any claim for reimbursement. The withheld amounts shall be
placed in a tax payment account pursuant to a Tax Payment Agreement in
accordance with Section 9.01(k) and shall be disbursed in accordance
with the terms of such Tax Payment Agreement.
(b) Returns. Seller (and after the Closing Date, Purchaser) shall
cause the Company to prepare and file all required Federal, state,
local and foreign Tax Returns for the Company for all taxable periods
ending on or prior to the Closing Date and pay all Taxes required to
be paid for periods covered by such Tax Returns. Purchaser shall cause
the Company to prepare and file all other Tax Returns required of the
Company (including all required information reporting returns), shall
cause to be paid all Taxes with respect to, and shall cause to be
reported on such Tax Returns any transactions by or relating to, the
Company occurring after the Closing Date. Any such Tax Returns shall,
insofar as they relate to the Company, be on a basis consistent with
the last such Tax Returns that have been filed in respect to the
Company (subject to the provisions of Section 9.01(f)).
Notwithstanding the foregoing, Seller and Xxxxxxxx shall have the
right to prepare and file, or cause to be prepared and filed, all U.S.
federal, state and local income Tax Returns of the Company for all
periods ending on or prior to, or that include, the Closing Date and
no such income Tax Returns shall be subsequently amended or refiled
without the prior written consent of Seller or Xxxxxxxx. In addition,
Purchaser and the Company shall not refile or amend any Tax Return in
any manner which would result in additional liability to Seller or
Xxxxxxxx under this Agreement or otherwise, without Seller's or
Xxxxxxxx'x prior written consent.
(c) Subsequent Adjustments. Seller shall be entitled to retain,
or receive immediate payment from the Company of any Tax refunds
(including refunds arising by reason of amended Tax Returns filed
after the Closing Date) or credit of Federal, state, local or foreign
Taxes (plus any interest thereon received with respect thereto from
the applicable taxing authority) relating to the Company, that were
paid with respect to a period ending on or prior to the Closing Date
(whether or not constituting the close of a taxable year) (or a pro
rata portion thereof for periods that include but do not end on the
Closing Date). The Company shall be entitled to the benefit of any
refunds or credit of Federal, state, local or foreign Taxes (plus any
interest thereon received with respect thereto from the applicable
taxing authority) relating to it that were paid with respect to a
period after the Closing Date (or a pro rata portion thereof for
periods that include but do not end on the Closing Date). Purchaser
and Seller agree to cooperate, and Purchaser agrees to cause the
Company to cooperate with Seller, with respect to
29
claiming any refund referred to in this Section 9.01(c), including
providing Seller or Purchaser, as the case may be, with information
that could constitute a reasonable basis for claiming such a refund
when requested to do so, providing all relevant information available
to Seller or Purchaser (through the Company or otherwise), as the case
may be, with respect to any such claim, filing and diligently pursuing
such claim (including by litigation, if appropriate), paying over to
Seller or the Company, as the case may be, and in accordance with this
provision, any amount received by Purchaser, the Company or Seller, as
the case may be, with respect to such claim, and consulting with the
other party prior to agreeing to any disposition of such claim. The
party that is to enjoy the economic benefit of a refund under this
Section 9.01(c) shall bear the expenses of the other party reasonably
incurred in seeking such refund.
(d) Cooperation. Purchaser and Seller mutually agree to cooperate
fully with each other with respect to the preparation of all Tax
Returns, the filing and prosecution of any Tax claims, the furnishing
of any document, record or other relevant information relating to any
Tax liability or refund and all other Tax matters, and to keep each
other advised as to any issue relating to Taxes which would have any
bearing on the other party's responsibilities pursuant to this Section
9.01.
(e) Election. Purchaser and Seller agree to make a joint election
under Section 338(h)(10) of the Code in accordance with Treas. Reg. ss
1.338(h)(10)-1(d) on Internal Revenue Service Form 8023 and to make a
joint election under any corresponding state, local or foreign tax law
(the "Election") with respect to the purchase and sale of the stock of
the Company within 60 days after the Closing Date. Purchaser and
Seller agree that, except as set forth in Section 9.02, Seller shall
have sole liability for all Taxes that arise from the actual sale of
the shares of the Company or the deemed sale of the assets of the
Company occurring as a result of the Election, including, but not
limited to Taxes payable by the Company to any federal, state, local
or foreign jurisdiction as a result of the Election. In addition,
Purchaser and Seller agree to provide the other with all necessary
information to permit the Election to be made. In connection with the
Election, Purchaser and Seller shall mutually determine (i) the amount
of the modified aggregated deemed sales price ("MADSP") of the shares
of the Company (within the meaning of Treas. Reg. Section
1.338(h)(10)-1(f)) and (ii) based on the fair market value of the
assets of the Company, as determined under Section 9.01(i), the proper
allocation of the MADSP among the assets of the Company in accordance
with Treas. Reg. Section 1.338(h)(10)-1(f). The allocations referred
to in the preceding sentence are referred to herein as the
"Allocations." Purchaser and Seller will calculate the gain or loss,
if any, in a manner consistent with the Allocations, and Purchaser and
Seller will not take any position inconsistent with the Allocations in
any Tax Return (subject to appropriate adjustments pursuant to Treas.
Reg. ss 1.338(h)(10)-1(f)(4)).
(f) Conduct of Business. On and after the Closing Date, as to
matters which could affect the Company's Tax Returns with respect to
the Closing Date or the periods prior thereto, Purchaser shall cause
the Company to file Tax Returns of the Company for taxable periods
ending after the Closing Date in a manner that is consistent with past
practices, unless the Purchaser reasonably determines that it is
required by law to do otherwise. In the event that Purchaser makes
such a determination, Purchaser shall consult with Seller or Xxxxxxxx
prior to
30
filing any additional Tax Returns with regard to any changes from past
practices and Seller and Xxxxxxxx shall have the opportunity to
demonstrate that such change is not required by law.
(g) Post-Closing Access. In connection with any matter relating
to any period prior to, or any period ending on, the Closing Date, (i)
each party shall (and Purchaser shall cause the Company to), upon the
request and at the expense of the other, permit the other party and
its representatives full access at all reasonable times to the books
and records, including Tax Returns, of the Company which are in the
possession of the party to whom the request is made, and (ii) each
party shall execute (and Purchaser shall cause the Company to execute)
such documents as the other party may reasonably request to enable the
other party to file any required reports or Tax Returns (including
amended Tax Returns) relating to the Company. Neither party shall
dispose (or allow the disposal) of such books and records (i) at any
time without the other party's consent, in the case of books and
records pertaining to acquisition of equipment prior to the Closing,
and (ii) with respect to all other such books and records, during the
six-year period beginning with the Closing Date without the other
party's consent. For the three-year period directly following the
expiration of such six-year period, either party may dispose (or allow
the disposal) of such other books and records at any time upon giving
60 days prior written notice to the other party, unless the other
party agrees to take possession of such books and records within 60
days at no expense to the other party seeking to dispose of such other
books and records. Thereafter, either party may dispose of such other
books and records without notice to the other.
(h) Fair Market Values. Purchaser and Seller have in good faith
agreed on the fair market values (as of the end of the Closing Date)
of the assets of the Company, which fair market values are set forth
on Exhibit 9.01(h). No party shall file any Tax Return (including
amendments) or report inconsistent with such determination.
(i) Clearance Certificates. Seller shall use commercially
reasonable efforts to provide Purchaser with a clearance certificate
or similar document requested by Purchaser, on or before the Closing
Date, which may be required by any State taxing authority in order to
relieve Purchaser of any obligation to withhold any portion of the
Purchase Price.
(j) Withholding For Taxes. Purchaser shall withhold from the
Purchase Price payable at Closing any amounts it is required to
withhold under state law and for which a clearance certificate has not
been obtained on or prior to the Closing Date, as well as any amounts
payable by the Company to any state or local jurisdiction as a result
of the Election, and Purchaser shall deposit such amount in a tax
payment account governed by the Tax Payment Agreement to be entered
into substantially in the form attached hereto as Exhibit 9.01(j).
(k) Waiver of Inadvertent Termination. Seller agrees to cooperate
fully and take any steps necessary to obtain a waiver of any
inadvertent termination of the election under Code Section 1362(f) or
similar state election by the Company, if it is determined after the
Closing that such election(s) was not valid or was terminated prior to
Closing.
(l) Successors. For purposes of this Article IX, all references
to the Purchaser, the Seller, the Shareholder and the Company include
successors.
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(m) Allocation of Taxes. For purposes of Section 3.14 and this
Article IX, in the case of Taxes that are payable with respect to a
taxable period that begins before the Closing Date and ends after the
Closing Date, the portion of such Taxes payable for the period ending
on the Closing Date shall be (a) in the case of any Tax other than a
Tax based upon or measured by income, the amount of such Tax for the
entire period multiplied by a fraction, the numerator of which is the
number of days in the period ending on the Closing Date and the
denominator of which is the number of days in the entire period and
(b) in the case of any Tax based upon or measured by income, the
amount which would be payable if the taxable year ended as of the end
of the Closing Date.
9.02. Transfer Taxes. Purchaser shall be responsible for all
transfer and similar Taxes assessed or payable in connection with the
Transfer of the Shares (or deemed transfer of assets by reason of an
actual or deemed election under Section 338 or Section 338(h)(10) of
the Code) pursuant to this Agreement.
9.03 Treatment of Indemnity and Other Payments. All indemnity and
other payments made under this Agreement shall be considered to be
adjustments to the Purchase Price.
9.04 Survival and Indemnification. The covenants and agreements
of the parties contained in this Article IX and the representations
and warranties contained in Section 3.14 shall survive the Closing and
shall remain in full force and effect until ninety (90) days following
the expiration of the applicable statutes of limitations with respect
to any Taxes that would be indemnifiable under this Article IX. The
procedures set forth in Section 8.04 shall apply to any claims made by
the parties to this Agreement pursuant to this Article IX. Seller
shall indemnify and hold harmless Purchaser and the Company against
any and all Losses as a result of, or arising out of, any breach of
representation or warranty in Section 3.14 or any covenant made by
Seller in this Article IX, provided, however, that, subject to the
next sentence hereof, Purchaser shall be entitled to indemnification
under this Article IX only if and to the extent that the aggregate
amount of claims made under this Article IX exceeds $500,000 and in no
event shall the indemnification obligation of Seller under this
Article IX exceed $10,000,000 in the aggregate. Seller and Purchaser
agree that the deductible and limitation on liability set forth in the
immediately preceding sentence do not apply to claims relating to the
Election. Purchaser shall indemnify and hold harmless Seller against
any and all Losses as a result of or arising out of any breach of any
covenant (without limiting the ability to enforce such covenant
directly) made by Purchaser in this Article IX and shall reimburse
Seller upon demand (or credit Seller against amounts otherwise then
payable by Seller pursuant to this Agreement, if any) for any
overpayments that may have been made (including overpayments of
estimated amounts, payments made by Seller, the Company or Xxxxxxxx
directly as a result of a direct claim by or obligation to a Tax
authority that should have been subject to the above deductible or
limitation on liability, amendments to Tax Returns or other similar
circumstances). Notwithstanding anything to the contrary in this
Agreement, to the extent that the provisions contained in this Article
IX conflict with any provision of Article VIII hereof, the provisions
contained in Article IX shall control. The remedies contained in this
Article IX shall be the sole recourse of the
32
parties hereto and their respective Affiliates for all losses,
liabilities, claims, damages or expenses related to or arising,
directly or indirectly, out of or relating to Taxes, Section 3.14 and
this Article IX, the transactions contemplated hereby or otherwise
arising at law, under any statute or in equity, and each party hereto
has waived any and all rights, claims, causes of action and other
remedies it or its Affiliates may have against the other relating to
the subject matter of the foregoing other than the remedies expressly
provided in this Article IX.
ARTICLE X
Miscellaneous
-------------
10.01. Brokers. Seller represents and warrants to Purchaser, and
Purchaser represents and warrants to Seller, that neither it nor any
party acting on its behalf has incurred any liability, either express
or implied, to any "broker", "finder", financial adviser or similar
Person in respect of any of the transactions contemplated hereby, with
the exception of Chase Securities Inc. with respect to Seller (and who
shall be paid by the Company at or prior to Closing) and except for
Xxxxxx Xxxxxxx & Co. Incorporated with respect to Purchaser (and who
shall be paid by Purchaser). Purchaser agrees to indemnify Seller
against, and hold it harmless from, and Seller agrees to indemnify
Purchaser against, and hold it harmless from, any liability, cost or
expense (including, but not limited to, fees and disbursements of
counsel) resulting from any agreement, arrangement or understanding
made by such party with any third party for brokerage, finders' or
financial advisory fees or other commissions in connection with this
Agreement or the transactions contemplated hereby. The provisions of
this Section shall survive any termination of this Agreement.
10.02. Expenses. Except as otherwise specifically provided in
this Agreement, each party will pay its own expenses incident to this
Agreement and the transactions contemplated hereby, including legal
and accounting fees and disbursements. The fees and expenses of
Xxxxxxx, Xxxxxxxx & Kotel, a Professional Corporation, counsel to
Seller, shall be paid by the Company at or prior to Closing. Any
sales, transfer, stamp or other Taxes or fees applicable to the
conveyance and transfer to Purchaser of the Shares (but excluding any
Income Taxes arising as a result of the transactions contemplated by
this Agreement), shall be borne and paid by Purchaser. The provisions
of this Section shall survive any termination of this Agreement.
10.03. Preservation of Records. Purchaser covenants and agrees to
cause the Company to preserve and maintain all records relating to
safety and environmental matters (including environmental audits and
assessments, waste disposal manifests, safety inspection reports,
correspondence and notices from third parties and governmental
agencies, etc.) and product liability matters (including product
history files, purchase orders, drawings and designs, patent
infringement indemnification agreements, product instruction and
labeling materials, etc.) until such time as all statutory limitations
periods have run with respect to such matters and no claims can be
asserted against Seller, the Company or the Company's officers,
directors, employees, agents or representatives with respect thereto.
During the period such records are so
33
required to be preserved and kept, Seller and its Affiliates,
beneficiaries, representatives and successors shall, on reasonable
prior notice, have reasonable access thereto during normal business
hours to examine, inspect and copy the same; provided, however, that
Seller shall be obligated to maintain the confidentiality of any
information provided under this section on the same basis as Purchaser
is obligated to maintain confidentiality of information under Section
5.02 (i.e., as if Seller rather than Purchaser was party to the
February 24, 1998 confidentiality agreement).
10.04. Amendments and Waivers. The parties hereto may, by written
agreement signed by the parties, modify any of the covenants or
agreements or extend the time for the performance of any of the
obligations contained in this Agreement or in any document delivered
pursuant to this Agreement. Any party hereto may waive, by written
instrument signed by such party, any inaccuracies in the
representations and warranties of another party or compliance by
another party with any of its obligations contained in this Agreement
or in any document delivered pursuant to this Agreement. This
Agreement may be amended only by written instrument signed by the
parties hereto.
10.05. Transferability. The respective rights and obligations of
each party hereto shall not be assignable by either such party without
the written consent of the other party hereto (and any purported
assignment without such written consent shall be void and of no
effect). This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors, permitted
assignees and personal representatives, estates and heirs.
10.06. Termination. Purchaser or Seller may terminate this
Agreement if the Closing has not occurred on or prior to December 31,
1998; PROVIDED, HOWEVER, that any party that has failed to perform any
covenant hereunder, which failure has resulted in the failure of a
condition in Articles VI or VII, shall not be entitled to terminate
this Agreement except with the prior written consent of the other
party hereto. In the event of the termination of this Agreement, none
of the parties shall have any obligation or liability of any nature
whatsoever to the other party hereto, and all expenses incurred by any
party hereto shall be for its own account, except for the obligations
of Purchaser in Section 5.02 which shall survive the termination and
except as may otherwise be specifically provided in this Agreement;
PROVIDED, HOWEVER, that notwithstanding any termination of this
Agreement, no party hereto shall be deemed to have waived any rights
it may have arising from the breach of this Agreement or any provision
contained herein by the other party hereto and such rights shall
specifically survive any such termination of this Agreement.
10.07. Notices. Any notice, request or other document to be given
hereunder to a party hereto shall be effective when received and shall
be given in writing and delivered in person or sent by hand delivery
or overnight courier, as follows:
If to Purchaser, addressed to it at:
Cordant Technologies Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
00
Xxxxx, Xxxx 00000-0000
Attention of Xxxxxx Xxxxx, Xx.
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attention of Xxxxx X. Xxxxx, Esq.;
If to Seller, addressed to it at:
Xxxxxxxx Mfg. Co. Inc.
0000 XX-00 Xxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxx;
with a copy to:
Xxxxxxxx Mfg. Co. Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxxxx;
and with a further copy to:
Xxxxxxx, Xxxxxxxx & Kotel,
a Professional Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
Any party hereto may change its address for receiving notices,
requests and other documents by giving written notice of such change
to the other parties hereto.
10.08. Governing Law; Choice of Forum. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York (without regard to conflict of laws doctrines). The parties
agree that the exclusive place of jurisdiction for any action, suit or
proceeding relating to this Agreement shall be in the courts of the
United States of America sitting in the Borough of Manhattan in the
City of New York or, if such courts shall not have jurisdiction over
the subject matter thereof, in the courts of the State of New York
sitting therein, and each such party hereby irrevocably and
unconditionally agrees to submit to the jurisdiction of such courts
for purposes of any such action, suit or proceeding. Each party
irrevocably waives any objection it may have to the venue of any
action, suit or proceeding brought in such courts or to the
convenience of the forum. Final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment, a certified or true
35
copy of which shall be conclusive evidence of the fact and the amount
of any indebtedness or liability of any party therein described.
10.09. Partial Invalidity. In the event that any provision of
this Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
10.10. Section Headings. The section headings and table of
contents contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement.
10.11. Disclosure. The information set forth in the Schedules to
this Agreement is qualified in its entirety by reference to the
specific provisions of this Agreement and is not intended to
constitute and shall not be construed as constituting, representations
or warranties of the party to which such Schedules relate except as
and to the extent provided in this Agreement. Inclusion of information
in the Schedules shall not be construed as an admission that such
information is material for purposes of the specific provisions of
this Agreement to which such information relates. Information included
in the Schedules that is not required to be so included under the
specific provisions of this Agreement shall be deemed to be included
for information purposes only and information of a similar nature need
not be included elsewhere (in the Schedules or otherwise), at the
discretion of the party providing such information. Any information
disclosed by a party in any Schedule shall be deemed to be disclosed
in all the Schedules of such party and for all purposes under this
Agreement to the extent the specific provisions of this Agreement
require such disclosure.
10.12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same
instrument.
10.13. Entire Agreement. Except in the case of any
confidentiality agreements or undertaking referenced in Section 5.02,
this Agreement, together with the schedules and exhibits and the
agreements, certificates and instruments delivered pursuant hereto,
contain the entire agreement among the parties hereto, and supersede
all prior agreements and undertakings (written and oral) between the
parties hereto, relating to the subject matter hereof.
10.14. Publicity. No party shall issue any press release or make
any other public announcement with respect to this Agreement or the
transactions contemplated hereby without obtaining the prior written
approval of the other parties (which will not be unreasonably withheld
or delayed), except as may be required by law or the regulations of
any securities exchange.
10.15. Parties in Interest. Nothing in this Agreement, express or
implied, is intended to confer on any Person other than the parties
and their respective successors and permitted assigns any rights or
remedies under or by virtue of this Agreement, and no Person shall
assert any rights as a third party beneficiary hereunder.
36
10.16. Knowledge. Any reference to Seller's knowledge or the
knowledge of Seller shall mean the knowledge, after reasonable
investigation and inquiry, of Xxxxxx Xxxxxxxx, Xxxx Xxxxxx and/or
Xxxxxxx Xxxxxxxxx.
10.17. Specific Performance. The Company and Seller agree that
Purchaser will be irreparably injured if this Agreement is not
specifically enforced. Therefore, notwithstanding anything to the
contrary in this Agreement, Purchaser shall have the right to enforce
specifically the performance by Xxxxxxxx or Seller under this
Agreement, and Xxxxxxxx and Seller agree to waive the defense in any
such suit that Purchaser has an adequate remedy at law and to
interpose no opposition, legal or otherwise, as to the propriety of
specific performance as a remedy. The specific performance remedy
described in this Section 10.17 shall be in addition to, and not in
lieu of, any other remedies at law or in equity that Purchaser may
elect to pursue.
10.18. Cordant Guarantee. Cordant hereby fully guarantees to
Seller and Xxxxxxxx the full and timely performance of Purchaser's
obligations under this Agreement on the terms and subject to the
conditions set forth herein.
10.19. Xxxxxxxx Guarantee. Xxxxxxxx hereby fully guarantees to
Purchaser and Cordant the full and timely performance of Seller's
obligations under this Agreement on the terms and subject to the
conditions set forth herein.
37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
HUCK INTERNATIONAL, INC.
By: /s/ X. X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title:Authorized Signature
XXXXXX XXXXXXXX, as trustee of the Xxxxxx Xxxxxxxx
Revocable Trust No.2, u/a/d March 1, 1998,
By: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Trustee
/s/ X. Xxxxxxxx
XXXXXX XXXXXXXX
CORDANT TECHNOLOGIES INC.
By: /s/ X. X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: General Counsel
Agreed and acknowledged as to
Sections 5.01, 5.02 and 5.03 only:
XXXXXXXX MFG. CO. INC.
By: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Chairman
