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EXHIBIT 2.3
EXECUTION COPY
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CANADIAN ASSET PURCHASE AGREEMENT
BY AND AMONG
XXXXXX RUBBERMAID INC.
XXXXXX INDUSTRIES CANADA INC
LIBBEY INC.
AND
LIBBEY CANADA INC.
DATED AS OF JUNE 17, 2001
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TABLE OF CONTENTS
PAGE
1. TRANSFER OF CANADIAN ASSETS AND ASSUMPTION OF CANADIAN LIABILITIES.......................................1
(a) TRANSFER OF CANADIAN ASSETS.....................................................................1
(b) EXCLUDED CANADIAN ASSETS........................................................................2
(c) ASSUMPTION OF LIABILITIES.......................................................................2
(d) EXCLUDED CANADIAN LIABILITIES...................................................................2
2. CANADIAN PURCHASE PRICE; ALLOCATION OF CANADIAN PURCHASE PRICE...........................................2
(a) CANADIAN PURCHASE PRICE.........................................................................2
(b) ALLOCATION OF CANADIAN PURCHASE PRICE...........................................................2
3. CANADIAN CLOSING.........................................................................................2
4. DOCUMENTS TO BE DELIVERED AT THE CANADIAN CLOSING........................................................3
(a) DELIVERIES OF CANADIAN SELLER...................................................................3
(b) CANADIAN PURCHASER'S DELIVERIES.................................................................3
(c) GENERAL DELIVERIES..............................................................................3
5. CONDITIONS TO CANADIAN CLOSING...........................................................................3
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND CANADIAN SELLER.............................................3
(a) ORGANIZATION OF CANADIAN SELLER.................................................................3
(b) AUTHORIZATION OF TRANSACTION AND VALIDITY OF AGREEMENT..........................................3
(c) RESIDENCE OF CANADIAN SELLER....................................................................4
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND CANADIAN PURCHASER.......................................4
(a) ORGANIZATION OF CANADIAN PURCHASER..............................................................4
(b) AUTHORIZATION OF TRANSACTION AND VALIDITY OF AGREEMENT..........................................4
8. CANADIAN EMPLOYEES.......................................................................................4
(a) DEFINITIONS.....................................................................................5
(b) INDEMNITY.......................................................................................5
9. EXPENSES; TRANSFER TAXES.................................................................................5
10. INDEMNIFICATION..........................................................................................6
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11. BULK SALES INDEMNITY.....................................................................................6
12. TERMINATION..............................................................................................6
13. APPLICATION OF PROVISIONS OF THE PURCHASE AGREEMENT......................................................6
14. ASSIGNMENT...............................................................................................6
15. NOTICES..................................................................................................7
16. GOVERNING LAW; CONSENT TO JURISDICTION...................................................................8
17. SEVERABILITY.............................................................................................9
18. FURTHER ASSURANCES.......................................................................................9
19. MISCELLANEOUS...........................................................................................10
SCHEDULE 1(a) Canadian Assets
SCHEDULE 1(b) Excluded Canadian Assets
SCHEDULE 1(c) Canadian Liabilities
SCHEDULE 1(d) Excluded Canadian Liabilities
SCHEDULE 2(b) Allocation of Canadian Purchase Price
EXHIBIT A Xxxx of Sale
EXHIBIT B Assumption Agreement
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CANADIAN ASSET PURCHASE AGREEMENT
---------------------------------
This CANADIAN ASSET PURCHASE AGREEMENT (this "AGREEMENT") is
entered into as of this 17th day of June, 2001, by and among XXXXXX RUBBERMAID
INC., a Delaware corporation ("PARENT"), XXXXXX INDUSTRIES CANADA INC., a
corporation organized and existing under the laws of the province of Ontario,
Canada ("CANADIAN SELLER"), LIBBEY INC., a Delaware corporation ("PURCHASER"),
and LIBBEY CANADA INC., a corporation organized and existing under the laws of
the province of Ontario, Canada ("CANADIAN PURCHASER").
WITNESSETH:
WHEREAS, Parent, Anchor Hocking Corporation, a Delaware
corporation, Menagerie Corporation, a Delaware corporation ("NEWCO"), Xxxxxx
Operating Company, a Delaware corporation, and Purchaser have entered into that
certain Stock Purchase Agreement, dated as of June 17, 2001 (the "PURCHASE
AGREEMENT"), for the sale by Seller to Purchaser of all of the issued and
outstanding common stock of Newco;
WHEREAS, Newco is engaged in the design, development,
manufacture, distribution, servicing, sale and marketing of consumer and
specialty glass products (the "BUSINESS");
WHEREAS, Parent desires to cause Canadian Seller to transfer
to Canadian Purchaser certain assets relating primarily to the Business and
located in Canada; and
WHEREAS, Canadian Purchaser desires to assume certain
liabilities of Canadian Seller relating exclusively to the Business on the terms
and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the respective
representations, warranties, covenants, agreements and premises contained herein
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. TRANSFER OF CANADIAN ASSETS AND ASSUMPTION OF CANADIAN
LIABILITIES.
(a) TRANSFER OF CANADIAN ASSETS. Upon the terms and subject to
the conditions of this Agreement and the Purchase Agreement, Canadian Seller
hereby agrees to sell, assign, transfer and convey to Canadian Purchaser at the
Canadian Closing (as hereinafter defined), and Canadian Purchaser hereby agrees
to acquire from Canadian Seller, all of Canadian Seller's right, title and
interest in and to the assets, rights, privileges, Permits and Contracts
relating primarily to or held for use primarily in connection with the Business
and located in Canada and owned by Canadian Seller at the Canadian Closing
including, without limitation, all of such assets set forth on SCHEDULE 1(a) of
this Agreement and all of the assets located in Canada reflected in the Fin-P[al
Closing Net Working Capital but excluding any assets held under any Benefit Plan
(collectively, the "CANADIAN ASSETS"); PROVIDED, HOWEVER, with respect to any
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Contracts included in the Canadian Assets, the sale, assignment, transfer and
conveyance shall be subject to SECTION 4.21 of the Purchase Agreement.
Notwithstanding the foregoing, the Canadian Assets shall not include any of the
Excluded Canadian Assets.
(b) EXCLUDED CANADIAN ASSETS. Notwithstanding any of the other
provisions of this Agreement, Canadian Seller shall retain, and shall not
transfer to Canadian Purchaser hereunder or otherwise the assets, rights,
privileges, Permits and Contracts listed on SCHEDULE 1(b) of this Agreement (the
"EXCLUDED CANADIAN ASSETS").
(c) ASSUMPTION OF LIABILITIES. Upon the terms and subject to
the conditions of this Agreement and the Purchase Agreement, Canadian Purchaser
hereby agrees to assume from Canadian Seller at the Canadian Closing, and hereby
agrees to pay, honor and be fully liable for, all of Canadian Seller's
Liabilities relating exclusively to the Business, including, without limitation,
all of the Liabilities set forth on SCHEDULE 1(c) of this Agreement and all of
the Liabilities reflected in the Final Closing Net Working Capital
(collectively, the "CANADIAN LIABILITIES"). The assumption by the Canadian
Purchaser of the Canadian Liabilities shall not be construed to defeat, impair
or limit in any way Canadian Purchaser's rights or remedies to, in good faith,
dispute the validity or amount of any such Liability as against any party other
than Parent, Canadian Seller or any of their Affiliates. Notwithstanding the
foregoing, the Canadian Liabilities shall not include the Excluded Canadian
Liabilities.
(d) EXCLUDED CANADIAN LIABILITIES. Notwithstanding any other
provision of this Agreement, Canadian Purchaser shall not assume, incur or
otherwise be responsible for any Liabilities of Seller, other than the Canadian
Liabilities, whether actual or contingent, matured or unmatured, liquidated or
unliquidated, or known or unknown, whether arising out of the occurrences prior
to, at or after the date hereof and in no event, shall Canadian Purchaser
assume, incur or otherwise be responsible for (i) any Liabilities whatsoever
under or related to any Benefit Plans or (ii) any Liabilities set forth on
SCHEDULE 1(d) of this Agreement (collectively, the "EXCLUDED CANADIAN
LIABILITIES").
2. CANADIAN PURCHASE PRICE; ALLOCATION OF CANADIAN PURCHASE
PRICE.
(a) CANADIAN PURCHASE PRICE. In full consideration of the
sale, conveyance, assignment and transfer of the Canadian Assets to Canadian
Purchaser, (a) Purchaser will pay to Parent a purchase price (the "CANADIAN
PURCHASE PRICE") in immediately available federal funds in an amount equal to
USD$2,000,000, such amount to be paid in U.S. dollars by wire transfer to a bank
account designated by Parent in writing prior to the Canadian Closing, and (b)
Canadian Purchaser will assume the Canadian Liabilities as of the Closing Date.
(b) ALLOCATION OF CANADIAN PURCHASE PRICE. The Canadian
Purchase Price will be allocated among the Canadian Assets in accordance with
the provisions of SCHEDULE 2(b) attached hereto. Each party to this Agreement
agrees that it will not take any position that varies from or is inconsistent
with such allocation in any filing made by such party for foreign, federal,
state, provincial or local income tax purposes.
3. CANADIAN CLOSING. The consummation of the sale, conveyance,
assignment and transfer of the Canadian Assets, the assumption of the Canadian
Liabilities and
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the payment of the Canadian Purchase Price contemplated by this Agreement (the
"CANADIAN CLOSING") will take place simultaneously with the Closing as set forth
in SECTION 1.5 of the Purchase Agreement, such closing to be held at the offices
of Xxxxxx & Xxxxxxx, 233 X. Xxxxxx Drive, Sears Tower, Suite 5800, Chicago,
Illinois or such other place as Canadian Seller and Canadian Purchaser agree
upon in writing. At the Canadian Closing, Canadian Seller and Canadian Purchaser
will make their respective deliveries provided for in SECTION 4 of this
Agreement.
4. DOCUMENTS TO BE DELIVERED AT THE CANADIAN CLOSING.
(a) DELIVERIES OF CANADIAN SELLER. At the Canadian Closing,
Canadian Seller will deliver to Canadian Purchaser a xxxx of sale, substantially
in the form attached hereto as EXHIBIT A, and all other documents required to be
delivered by Parent and Canadian Seller hereunder and under the Purchase
Agreement.
(b) CANADIAN PURCHASER'S DELIVERIES. At the Canadian Closing,
Canadian Purchaser will deliver to Canadian Seller an assumption agreement with
respect to the Canadian Liabilities substantially in the form attached hereto as
EXHIBIT B, and all other documents required to be delivered by Purchaser and
Canadian Purchaser hereunder and under the Purchase Agreement.
(c) GENERAL DELIVERIES. At the Canadian Closing, all
instruments of conveyance and other documentation relating to the sale and
purchase of the Canadian Assets shall be reasonably satisfactory to Canadian
Purchaser and Canadian Seller, and each of Canadian Purchaser and Canadian
Seller shall have received copies of all such documentation or other evidence as
it may reasonably request in order to establish the consummation of the
transactions contemplated by this Agreement and the taking of all corporate
proceedings in connection with such transactions in compliance with these
conditions, in form (as to certification and otherwise) and substance reasonably
satisfactory to Canadian Purchaser or Canadian Seller, as the case may be.
5. CONDITIONS TO CANADIAN CLOSING. The respective obligations
of Canadian Seller and Parent and Canadian Purchaser and Purchaser to consummate
the transactions contemplated by this Agreement shall be subject to the
satisfaction (or waiver) by the applicable parties, at or prior to the Closing,
of the conditions set forth in Sections 7.1 and 7.2 of the Purchase Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND CANADIAN
SELLER.
(a) ORGANIZATION OF CANADIAN SELLER. Canadian Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the Province of Ontario, Canada and is registered for G.S.T. purposes.
(b) AUTHORIZATION OF TRANSACTION AND VALIDITY OF AGREEMENT.
Parent and Canadian Seller have all requisite power and authority to execute and
deliver this Agreement and to perform their obligations hereunder. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the board of
directors of Parent and Canadian Seller and no other corporate proceedings on
the
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part of Parent or Canadian Seller are necessary to authorize this Agreement and
to consummate the transactions so contemplated. This Agreement has been duly and
validly executed and delivered by Parent and Canadian Seller and (assuming it is
duly and validly executed by Purchaser and Canadian Purchaser) constitutes a
valid and binding agreement of Parent and Canadian Seller, enforceable against
Parent and Canadian Seller in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles.
(c) RESIDENCE OF CANADIAN SELLER. Canadian Seller is not a
non-resident of Canada for the purposes of the Income Tax Act (Canada).
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND CANADIAN
PURCHASER.
(a) ORGANIZATION OF CANADIAN PURCHASER. Canadian Purchaser is
a corporation duly organized, validly existing and in good standing under the
laws of the Province of Ontario, Canada and is registered for G.S.T. purposes.
(b) AUTHORIZATION OF TRANSACTION AND VALIDITY OF AGREEMENT.
Purchaser and Canadian Purchaser have all requisite power and authority to
execute and deliver this Agreement and to perform their obligations hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
board of directors of Purchaser and Canadian Purchaser and no other corporate
proceedings on the part of Purchaser or Canadian Purchaser are necessary to
authorize this Agreement and to consummate the transactions so contemplated.
This Agreement has been duly and validly executed and delivered by Purchaser and
Canadian Purchaser and (assuming it is duly and validly executed by Parent and
Canadian Seller) constitutes a valid and binding agreement of Purchaser and
Canadian Purchaser, enforceable against Purchaser and Canadian Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable principles.
8. CANADIAN EMPLOYEES.
(a) DEFINITIONS. For the purpose of this Agreement the
following definitions shall apply:
"BENEFIT PLANS" means plans, arrangements, agreements,
programs, policies, practices or undertakings, whether oral or written, formal
or informal, funded or unfunded, registered or unregistered to which the
Canadian Seller is a party or by which the Canadian Seller is bound or under
which the Canadian Seller has, or will have, any liability or contingent
liability, relating to:
(i) Pension Plans;
(ii) plans in the nature of insurance plans, providing for
employment benefits relating to disability or wage or benefits continuation
during periods of absence from
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work (including, short term disability, long term disability, workers
compensation and maternity and parental leave), and any and all employment
benefits relating to hospitalization, healthcare, medical or dental treatments
or expenses, life insurance, accidental death and dismemberment insurance, death
or survivor's benefits and supplementary employment insurance, in each case
regardless of whether or not such benefits are insured or self-insured; or
(iii) plans in the nature of compensation plans, which
means all employment benefits relating to bonuses, incentive pay or
compensation, performance compensation, deferred compensation, profit sharing or
deferred profit sharing, share purchase, share option, stock appreciation,
phantom stock, vacation or vacation pay, sick pay, severance or termination pay,
pension, employee loans or separation from service benefits, or any other type
of arrangement providing for compensation or benefits additional to base pay or
salary;
with respect to any of the Canadian Employees or former
employees who performed services for the Business (or any spouses, dependants,
survivors or beneficiaries of any such Business Employees or former employees),
individuals working on contract with the Canadian Seller with respect to the
Business or other individuals providing services to it of a kind normally
provided by employees or eligible dependants of such Person.
"CANADIAN EMPLOYEES" means the employees or sales
representatives (whether salaried or not) of the Canadian Seller who perform
services exclusively for the Business.
"PENSION PLANS" means all benefits relating to the
retirement or retirement savings including pension plans, pensions or
supplemental pensions.
(b) INDEMNITY. Canadian Seller and Parent agree to jointly and
severally indemnify and hold harmless the Canadian Purchaser from and against
any and all Actions or Liabilities that Canadian Purchaser may incur in
connection with or arising out of any action or alleged actions taken by
Canadian Seller at any time with respect to the Benefit Plans or with respect to
the operation and administration thereof, or arising out of any benefit claims
and liabilities under the Benefit Plans or with respect to the Canadian
Employees.
9. EXPENSES; TRANSFER TAXES.
(a) Except as otherwise specified in SECTION 11.1 of the
Purchase Agreement, all costs and expenses, including fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated by this Agreement and thereby shall
be paid by the party incurring such costs and expenses, whether or not the
Canadian Closing shall have occurred.
(b) The payment of all transfer, documentary, sales, use,
stamp, registration and other such Taxes (including all applicable real estate
transfer or gains Taxes) and related fees (including any penalties, interest and
additions to Tax) incurred in connection with this Agreement and the
transactions contemplated by this Agreement and the preparation and filing of
all Tax Returns and other documentation on a timely basis as may be required to
comply with the provisions of such Tax laws shall be governed by SECTION 6.7 of
the Purchase Agreement.
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10. INDEMNIFICATION. Together with SECTION 8(b) of this
Agreement, the indemnification provided in ARTICLE VIII of the Purchase
Agreement shall be the sole and exclusive remedy of any party hereto with
respect to this Agreement and the transactions contemplated hereby.
11. BULK SALES INDEMNITY. Canadian Purchaser shall not require
Canadian Seller to comply with the requirements of the Bulk Sales Act (Ontario)
or such other comparable legislation in the other Provinces of Canada as may be
applicable to the transfer of Canadian Assets. Notwithstanding the foregoing,
Parent and Canadian Seller hereby jointly and severally agree to indemnify and
save harmless Purchaser and Canadian Purchaser from and against any claims,
losses and expenses which are brought against Purchaser or Canadian Purchaser or
which Purchaser or Canadian Purchaser may suffer or incur as a result of such
non-compliance.
12. TERMINATION. In the event that the Purchase Agreement is
terminated in accordance with its terms, this Agreement shall immediately become
void and of no further effect and there shall be no liability on the part of any
party hereto, except for any willful breach of this Agreement occurring prior to
any such termination and as provided for in SECTION 9.2 of the Purchase
Agreement.
13. APPLICATION OF PROVISIONS OF THE PURCHASE AGREEMENT.
(a) Unless otherwise stated herein, all provisions of the
Purchase Agreement shall apply to the sale, assignment, transfer and conveyance
of the Canadian Assets and the assumption of the Canadian Liabilities.
(b) To the extent that the Purchase Agreement is amended,
modified, waived or extended, the parties hereto agree to take all necessary
steps to incorporate such amendment, modification, waiver or extension in this
Agreement in the form required by Law, to the extent applicable.
(c) Capitalized terms not otherwise defined in this Agreement
shall have the meaning set forth in the Purchase Agreement.
(d) In the event of any conflict between the terms of this
Agreement and the Purchase Agreement, the terms of the Purchase Agreement shall
prevail.
(e) References in this Agreement to a clause, schedule,
exhibit, annex or part thereof refer to the clause, schedule, exhibit, annex or
part thereof in this Agreement unless otherwise indicated.
14. ASSIGNMENT. This Agreement may not be assigned by
operation of law or otherwise by Parent or Canadian Seller without the prior
written consent of Purchaser (which consent may be granted or withheld in the
sole discretion of Purchaser). This Agreement may not be assigned by operation
of law or otherwise by Canadian Purchaser without the prior written consent of
Parent (which consent may be granted or withheld in the sole discretion of
Parent), EXCEPT, Canadian Purchaser may, without prior consent of any other
party hereto, transfer or assign by operation of law or otherwise this Agreement
to any Affiliate or subsidiary of Canadian Purchaser or Purchaser, PROVIDED that
in the event Canadian Purchaser assigns all or a
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portion of its rights and obligations under this Agreement, Purchaser hereby
unconditionally and irrevocably guarantees to the other parties hereto the
prompt and full discharge by such subsidiary or Affiliate of all of Canadian
Purchaser's obligations under this Agreement in accordance with the terms
hereof. Purchaser also hereby agrees that, if such subsidiary or Affiliate fails
to perform and discharge promptly all such obligations and liabilities in
accordance with such terms, Purchaser will, forthwith, perform and discharge the
same. The unconditional obligation of Purchaser hereunder will not be affected,
impaired or released by any termination or expiration hereof or by any
extension, waiver, amendment or other circumstance whatsoever that would release
a guarantor. Any attempted assignment in violation of this SECTION 14 shall be
null and void.
15. NOTICES. Any notices or other communications required or
permitted under, or otherwise in connection with this Agreement will be in
writing and will be deemed to have been duly given when delivered in person or
upon confirmation of receipt when transmitted by facsimile transmission (but
only if followed by transmittal by national overnight courier or hand delivery
on the next Business Day) or on receipt after dispatch by registered or
certified mail, postage prepaid, addressed, or on the next Business Day if
transmitted by national overnight courier, in each case as follows:
if to Canadian Seller or Parent:
Xxxxxx Rubbermaid Inc.
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxxx
Vice-President - General Counsel;
Xxxxxx Rubbermaid Inc.
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
Vice-President - Corporate Development
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Telecopy:(000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx, Xx.
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if to Purchaser or Canadian Purchaser:
Libbey Inc.
000 Xxxxxxx Xxxxxx
XX Xxx 00000
Xxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Director of
Corporate Development
with copies to:
Libbey Inc.
000 Xxxxxxx Xxxxxx
XX Xxx 00000
Xxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Xxxxxx X. Xxxxx, Vice President
and General Counsel
Xxxxxx & Xxxxxxx
000 X. Xxxxxx Xxxxx
Sears Tower, Suite 5800
Xxxxxxx, Xxxxxxxx 00000
Telecopy:(000) 000-0000
Attention: Xxxx X. Xxxxxxxx
or such other address as the person to whom notice is to be given has furnished
in writing to the other parties. A notice of change in address will not be
deemed to have been given until received by the addressee.
16. GOVERNING LAW; CONSENT TO JURISDICTION.
(a) With respect to all matters relating to the actual
transfer and conveyance of the Canadian Assets, the assumption of the Canadian
Liabilities and Canadian tax matters, this Agreement shall be construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein, and otherwise, this Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois.
(b) With respect to all matters relating to the actual
transfer and conveyance of the Canadian Assets, the assumption of the Canadian
Liabilities and Canadian tax matters, each of the parties hereto irrevocably
attorns and submits to the jurisdiction of any Ontario court sitting in Xxxxxxx,
Xxxxxxx. All of the parties hereto irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding. Each of the Parent and the Purchaser irrevocably
appoints Blake, Xxxxxxx & Xxxxxxx LLP (the "PARENT'S PROCESS AGENT") and Xxxxx
Xxxxxx & Harcourt (the "PURCHASER'S PROCESS AGENT"), respectively, with offices
at Xxx 00, Xxxxxxxx Xxxxx Xxxx, 000 Xxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx X0X
0X0 and 0 Xxxxx Xxxxxxxx Xxxxx, X.X. Xxx 00, Xxxxxxx X0X
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1B8, Canada, respectively, for the attention of Xxxxx X. Xxxxxxxx and Xxxxxx X.
Kingissepp, respectively, as its agent to receive on behalf of it and its
property service of copies of the statement of claim and any other process which
may be served in any such action or proceeding. Such service may be made by
delivering a copy of such process to the Parent or the Purchaser in care of the
Parent's Process Agent or the Purchaser's Process Agent, respectively, at its
address set out above, and each of the Parent and the Purchaser irrevocably
authorizes and directs its Process Agent to accept such service on its behalf.
Each of Parent and Purchaser agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by Law. Nothing in this
SECTION 16(b) shall affect the right of any party to serve legal process in any
other manner permitted by Law or affect the right of the parties to bring any
action or proceeding any other court of competent jurisdiction.
(c) Subject to SUBSECTION 16(b), all actions and proceedings
arising out of or relating to this Agreement shall be heard and determined in
any federal court sitting in Chicago, Illinois, unless there is no federal court
jurisdiction, in which case the action or proceeding shall be heard and
determined in any state court sitting in Chicago, Illinois, and the parties
hereto hereby irrevocably submit to the jurisdiction of such courts in any such
action or proceeding and irrevocably waive the defense of an inconvenient forum.
The parties hereto hereby irrevocably waive their respective rights to trial by
jury of any cause of action, claim, counterclaim or cross-complaint in any
action or other proceeding brought by any party hereto against any other party
or parties hereto with respect to any matter arising out of, or in any way
connected with or related to, this Agreement or any portion thereof, whether
based upon contractual, statutory, tortious or other theories of liability. Each
party irrevocably consents to the service of any and all process in any such
action or proceeding by the mailing of copies of such process to such party at
its address specified in SECTION 15. Nothing in this SECTION 16 shall affect the
right of any party hereto to serve legal process in any other manner permitted
by law. The consents to jurisdiction set forth in this Section shall not
constitute general consents to service of process in the State of Illinois and
shall have no effect for any purpose except as provided in this SECTION 16 and
shall not be deemed to confer rights on any person other than the parties
hereto.
17. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated by this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated by this Agreement
are consummated as originally contemplated to the greatest extent possible.
18. FURTHER ASSURANCES. Upon the terms and subject to the
conditions contained herein, the parties hereto agree, (a) to use all
commercially reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement,
including, (b) to execute any documents, instruments or conveyances of any kind
which may be
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reasonably necessary or advisable to carry out any of the transactions
contemplated by this Agreement and (c) to cooperate with each other in
connection with the foregoing.
19. MISCELLANEOUS. This Agreement will not be modified or
amended except by written agreement of all parties. Captions appearing in this
Agreement are for convenience only and will not be deemed to explain, limit or
amplify the provisions hereof. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original instrument, and all
such counterparts will together constitute the same agreement.
* * *
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IN WITNESS WHEREOF, Parent, Canadian Seller, Purchaser and
Canadian Purchaser have caused this Agreement to be executed as of the date
first written above by their respective officers thereunto duly authorized.
XXXXXX RUBBERMAID INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: VP General Counsel
XXXXXX INDUSTRIES CANADA INC
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: VP General Counsel
LIBBEY INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: VP General Counsel
LIBBEY CANADA INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: VP General Counsel
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