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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
This agreement (the "Agreement") is dated as of the 21st day of
December, 1999, and is entered into by and between OIS OPTICAL IMAGING SYSTEMS,
INC., of 00000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the "Seller") and
GUARDIAN INDUSTRIES CORP., of 0000 Xxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000
(the "Buyer").
WITNESSETH:
WHEREAS, the Seller has ceased all of its manufacturing operations due
to its operating losses and a lack of funding alternatives;
WHEREAS, the Seller has adopted a plan for its liquidation and
dissolution (the "Plan"), which Plan provides for the selling of all of the
assets and properties of the Seller;
WHEREAS, the Seller has filed a certificate of dissolution with the
Secretary of State of the State of Delaware for its dissolution and liquidation;
WHEREAS, the Seller and the Buyer agree that the Seller should try to
sell its assets and properties for the best price that the Seller can obtain for
such assets and properties and that the Buyer shall purchase only those assets
and properties that the Seller is not able to sell to other persons prior to the
Closing and has elected not to abandon;
WHEREAS, the Seller considers the sale pursuant to this Agreement of
those of its assets and properties that it could not otherwise sell and which it
does not want to abandon to be the best alternative for the Seller to timely
proceed with its liquidation and dissolution; and
WHEREAS, the Buyer is willing to purchase all of the assets and
properties of the Seller that are available for sale on the closing date of this
Agreement pursuant to the provisions of this Agreement for the consideration set
forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the covenants,
representations, warranties and promises contained in this Agreement, and
intending to be legally bound thereby, the Seller and the Buyer hereby agree as
follows:
1. Agreement to Purchase and Sell. Subject to the provisions of this
Agreement, the Seller hereby agrees to sell, convey, transfer and deliver to the
Buyer and the Buyer hereby agrees to purchase from the Seller all of the assets
(including, but not limited to, all legal, equitable, absolute and contingent
rights) and properties of the Seller that the Seller owns on the Closing Date
(the "Assets"). The Assets shall not include the Excluded Assets (which are
identified in Section 3 of this Agreement). The Closing Date is defined in
Section 6 of this Agreement.
2. Assets. The Assets shall include, and not be limited to, the following
assets and properties of the Seller:
(a) all accounts, contract rights and general intangibles and other
receivables [including, but not limited to, prepaid expenses but
excluding any rights that the
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Seller has under the Tax Sharing Agreement (which is identified in
Section 3 of this Agreement)];
(b) all inventory including all goods obtained in exchange for such
inventory, and any products made or processed from such inventory
including all goods, if any, commingled therewith or added thereto;
(c) all right, title and interest in, to and under each contract and
other agreement, whether relating to the sale or other disposition of
inventory or the performance of services;
(d) all documents of title or other receipts and documents covering,
evidencing or representing inventory;
(e) all rights, claims and benefits against any person arising out of,
relating to or in connection with inventory purchased by the Seller;
(f) all goods, instruments, securities, documents, chattel paper,
letters of credit, credits, rights, claims, demand and interests
whatsoever;
(g) all proceeds, products and accessions of and to any of the property
described in items (a) to (f), inclusive, of this Section;
(h) the parcel of real property consisting of approximately thirty (30)
acres in Northville Township, Michigan and all easements,
rights-of-way, and other appurtenances thereto (the "Land");
(i) the approximately one hundred and eight thousand square foot
(108,000 sq. ft.) manufacturing and office facility, and all other
improvements, fixtures and fittings located on the Land (the
"Building");
(j) all equipment (whether or not the same constitutes a fixture)
including, but not limited to, machinery, tools, masks, motor vehicles,
office equipment and furniture, and all accessories and additions
thereto and all replacements therefore;
(k) patents, patent applications, and patent disclosures, together with
all reissuances, continuations, continuations-in-part, revisions,
extensions, and reexaminations of such patents, patent applications and
patent disclosures;
(l) all rights, if any, of the Seller with regard to any of the
following cases:
(i) OIS Optical Imaging Systems, Inc. v. Symbolic Displays,
Inc, Case No. 98-75009 (U.S. Xxxxxxxx Xxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxxx);
(ii) Xxxxxxxx Kratos v. OIS Optical Imaging Systems, Inc.,
Case No. 99-04500;
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(iii) OIS Optical Imaging Systems, Inc. and Allendale Mutual
Insurance Company v. Air Liquide America Corp., M.G.
Industries-Guardian Systems, and Xxxxx Xxxxx, Inc., Case No.
99-906202 (Xxxxx County Circuit Court);
(iv) OIS Optical Imaging Systems, Inc. v Astronautics
Corporation of America, Case No. 99-60407; and
(v) OIS Optical Imaging Systems, Inc. v Northville Township,
Michigan Tax Tribune Docket No. 26-0685.
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(m) all trade names, trademarks and copyrights;
(n) all assignable franchises, approvals, permits, licenses,
registrations, certificates, variances and similar rights; and
(o) all books, records, ledgers, files, documents, correspondence,
lists, plans, drawings, specifications, studies, reports and other
printed or written materials.
3. Excluded Assets. Notwithstanding any other provisions of this
Agreement, the Assets shall not include any of the following:
(a) the corporate charter; qualifications to do business as a foreign
corporation; arrangements with registered agents; taxpayer and other
identification numbers; corporate seals; minute books; stock transfer
books and ledgers; blank stock certificates; the use of the name "OIS
Optical Imaging Systems, Inc." as a corporate name; corporate and tax
accounting records; and any other correspondence or documents relating
to the organization, maintenance, tax status and existence of the
Seller;
(b) any money and funds in bank and/or checking accounts, which money
and funds in bank/or checking accounts shall be applied on the Closing
Date by the Seller in accordance with the provision of Section 9 of
this Agreement as though such money and funds were proceeds that the
Seller had received from the sale of its Assets pursuant to this
Agreement.
(c) any rights of the Seller under that certain tax sharing agreement
dated November 1, 1996 and entered into between the Seller and the
Buyer (the "Tax Sharing Agreement");
(d) any rights of the Seller under this Agreement; and
(e) any of the assets and properties of the Seller that are sold to
persons other than the Buyer during the period from June 30, 1999 to
and including the Closing Date or that are abandoned by the Seller on
or prior to the Closing Date.
4. Assumption of Liabilities. The Buyer is not assuming any of the
liabilities or other obligations of the Seller other than the obligation to make
payments to certain employees of the Seller, who will be identified by the
Seller at the Closing, under personal services
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contracts that expire in January, 2000, the assumption, by assignment, of all of
the obligations of the Seller under licences for intellectual property rights
granted to the Seller by other persons, and the obligation of the Seller to pay
all taxes on the Land and Building when such become due and payable.
5. Purchase Price. The purchase price for the Assets (the "Purchase
Price") shall be paid at the Closing (as defined in Section 6 of this Agreement)
as set forth in this Section. The Purchase Price shall be Forty-Two Million
Dollars ($42,000,000) minus any amounts that the Seller has received or has a
right to receive for assets and properties that are Excluded Assets. The
Purchase Price shall be paid to the Seller at the Closing by wire transfer in
immediately available funds to the bank account of the Seller at BankOne,
Michigan in Detroit, Michigan, Account Number: 112045854 or to such other bank
account as is designated in writing by the Seller for the receipt of the
immediately available funds.
6. Closing Date; Closing. The closing (the "Closing") for the sale of all
of the Assets then owned by the Seller shall take place at such time and place
as is agreed upon by the Buyer and the Seller, which date shall not be later
than December 31, 1999. The date of the Closing is referred to as the Closing
Date. At the Closing, the Seller shall execute such deeds, bills of sale,
endorsements, assignments and other instruments and documents as the Buyer
requires to transfer and convey ownership of the Assets and the Buyer shall pay
the Purchase Price together with any monies owed to the Seller by the Buyer
pursuant to Section 17 of this Agreement. Such payment shall be made pursuant to
the requirements of Section 5 of this Agreement.
7. Buyer's Conditions to Closing. The obligations of the Buyer to purchase
the Assets and to make payment of the Purchase Price are subject to the
satisfaction on or before the Closing of the Buyer that all terms, covenants,
agreements and conditions of this Agreement to be complied with and performed by
the Seller on or prior to the Closing have been timely complied with and
performed, and that such terms, covenants, agreements and conditions as well as
all of the representations and warranties of the Seller set forth in this
Agreement are true and correct on the Closing Date as if made on and as of the
Closing Date.
8. Seller's Conditions to Closing. The obligations of the Seller to sell
and convey the Assets are subject to the satisfaction on or before the Closing
of the Seller that all terms, covenants, agreements and conditions of this
Agreement to be complied with and performed by the Buyer on or prior to the
Closing have been timely complied with and performed, and that such terms,
covenants, agreements and conditions as well as all of the representations and
warranties of the Buyer set forth in this Agreement are true and correct on the
Closing Date as if made on and as of the Closing Date.
9. Application of Sale Proceeds. The Seller shall apply all proceeds
received by it pursuant to this Agreement as follows: first, as a reserve for
the payment of all anticipated costs and expenses in connection with the timely
liquidation and dissolution of the Seller; second, to the payment of all amounts
that are then due and owing pursuant to that certain credit agreement (the
"Credit Agreement") entered into as of December 14, 1993 by and among the
Seller, Bank of America NT&SA, NBD Bank, N.A. (the predecessor to BankOne,
Michigan), and BA Securities, Inc.; third, to the payment of all trade
creditors; fourth , if there are any proceeds remaining after the payment or
reservation of the forgoing amounts, to the
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Seller to the extent that the Buyer has an obligation to the Seller under the
Tax Sharing Agreement with respect to its portion of the consolidated income tax
liability for the calendar year 1999 (or any portion thereof) of the Affiliated
Group (as defined in the Tax Sharing Agreement); and fifth, if there are any
proceeds remaining after the payment or reservation of the forgoing amounts, to
the Seller to the extent of any unpaid borrowings (principal, interest and other
charges) owed or owing to GD Investments Corp. from the Seller.
10. Post-Closing Undertakings. No later than one (1) day after the Closing,
the Seller shall apply the proceeds of the sale and effect the repayment of all
of the amounts due and owing by the Seller under or pursuant to the Credit
Agreement. The Seller shall obtain from the lenders under the Credit Agreement
and their agent the termination and discharge of all security interests,
mortgages and other encumbrances granted to such lenders or their agent on any
of the Assets.
11. Allocation of the Purchase Price Consideration. The Purchase Price
consideration received by the Seller at the Closing shall be allocated among the
Assets as set forth in a Schedule to be executed at the Closing. The allocation
set forth in the Schedule of the Purchase Price shall be deemed to be conclusive
as to the price paid for each asset so allocated.
12. Acceptance and Waiver of Right of Inspection of Tangible Assets. The
Buyer hereby agrees to accept any and all of the tangible Assets when tendered
for delivery by the Seller and hereby waives all of its rights to inspect or
reject any or all of the tangible Assets when so tendered.
13. Warranty of Title. Except with respect to the Land, the Seller hereby
represents and warrants that it has good and indefeasible title to all of the
Assets being sold to the Buyer pursuant to this Agreement and that it will
timely deliver all of the Assets (whether tangible, intangible, real, personal
or fixture) free and clear of any and all liens, security interests and other
encumbrances. The Seller hereby represents and warrants that it has good and
indefeasible title to the Land which shall be conveyed by covenant deed. Title
to the Land shall be free and clear of all liens, encumbrances and restrictive
covenants except as set forth in any title commitment or any real estate survey.
14. Warranty of Quality of Tangible Assets. EXCEPT FOR THE EXPRESS WARRANTY
OF TITLE SET FORTH IN THE PRECEDING SECTION, ALL OF THE ASSETS AND PROPERTIES
THAT CONSTITUTE PERSONAL PROPERTY AND NOT FIXTURES ARE SOLD "AS IS" AND "WHERE
IS" AND WITHOUT ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. THE SELLER MAKES NO EXPRESS WARRANTIES EXCEPT THOSE WHICH
ARE SPECIFICALLY STATED IN THIS WRITING.
15. Representations and Other Warranties.
(a) The Seller hereby represents and warrants to the Buyer that:
(i) the Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has full corporate power
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and authority, and is properly qualified as a corporation, to
own, lease, and operate its assets and properties;
(ii) that the Seller has filed a certificate of dissolution
with the Secretary of State of the State of Delaware;
(iii) that the only place of business of the Seller is
located in Xxxxx County, in the State of Michigan;
(iv) that all of the tangible Assets of the Seller are
located in the State of Michigan:
(v) that the execution, delivery and performance of this
Agreement by the Seller has been duly authorized and that the
Agreement constitutes a valid and binding obligation of the
Seller;
(vi) that neither the execution and delivery of this
Agreement nor the consummation of the transactions
contemplated in this Agreement by the Seller will conflict
with, or result in a breach of the terms, conditions, or
provisions of, or constitute a default under, or result in an
acceleration of any obligation of the Seller under its
charter, or any agreement, instrument, judgement, decree,
rule or order to which the Seller is a party or by which the
Seller or any of its property is bound; and
(vii) that the Seller has good and indefeasible title to all
of the Assets and that there are not any outstanding liens,
security interests, or other encumbrance on any of the Assets
except for such liens, encumbrances and restrictive covenants
on the Land as are set forth in any title commitment or any
real estate survey and security interest and other
encumbrances granted pursuant to the Credit Agreement.
(b) the Buyer hereby represents and warrants to the Seller that:
(i) the Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority, and is
properly qualified as a foreign corporation, to own, lease,
and operate its assets and properties and to carry on its
business as and where it is now being conducted;
(ii) that the execution, delivery and performance of this
Agreement by the Buyer has been duly authorized and that the
Agreement constitutes a valid and binding obligation of the
Buyer; and
(iii) that neither the execution and delivery of this
Agreement nor the consummation of the transactions
contemplated in this Agreement by the Buyer will conflict
with, or result in a breach of the term, conditions, or
provisions of, or constitute a default under, or result in
an acceleration of any obligation of the Seller under its
charter, or any agreement, instrument,
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judgement, decree, rule or order to which the Buyer is a
party or by which the Buyer or any of its property is bound.
16. Covenants. The Seller and the Buyer covenant to each other that each
party shall use its best efforts to take all actions and to do all things
necessary, proper or advisable in order to consummate and make effective the
transactions contemplated by this Agreement in accordance with the provisions of
this Agreement.
17. Tax Sharing Agreement. The Tax Sharing Agreement shall be terminated as
of the Closing and all of the obligations of either party to the other party
under or pursuant to the Tax Sharing Agreement shall be extinguished, except as
set forth in this Section:
(a) Prior to the Closing, the Buyer and the Seller shall estimate the
obligations of one party to the other party under the Tax Sharing
Agreement for the calendar year 1999 based upon projections of the
United States consolidated income tax liability of the Affiliated Group
(as defined in the Tax Sharing Agreement), once with the inclusion of
the Seller's projected results for calendar year 1999 (or any portion
thereof) included in such computation and once with the Seller's
projected results for calendar year 1999 excluded from such
computation.
(b) To the extent that the United States consolidated income tax
liability of the Affiliated Group is higher with the inclusion of the
Seller's projected results for calendar year 1999 (or any portion
thereof), the Seller shall owe (as an account payable of the Seller to
the Buyer) such amount (that is, the difference between the
consolidated income tax liability with and without the inclusion of the
Seller's projected results) to the Buyer pursuant to the Tax Sharing
Agreement, in addition to any tax sharing advances made by the Buyer to
the Seller with respect to calendar year 1999. The account payable of
the Seller to the Buyer pursuant to this Subsection 17(b) shall not be
extinguished upon the termination of the Tax Sharing Agreement and
shall be paid by the Seller to the Buyer at the Closing to the extent
that the Seller has any available funds pursuant to the provisions of
Section 9 of this Agreement.
(c) To the extent that the United States consolidated income tax
liability of the Affiliated Group is lower with the inclusion of the
Seller's projected results for calendar year 1999 (or any portion
thereof), the Buyer shall owe (as an account payable of the Buyer to
the Seller) such amount (that is, the difference between the
consolidated income tax liability with and without the inclusion of
the Seller's projected results) to the Seller pursuant to the Tax
Sharing Agreement. The account payable shall be reduced by any tax
sharing advances made by the Buyer to the Seller with respect to
calendar year 1999. To the extent that the tax sharing advances by the
Buyer to the Seller exceed the amount otherwise payable by the Buyer
to the Seller pursuant to this Subsection 17(c), such amount shall be
owed by the Seller to the Buyer and shall not be extinguished upon the
termination of the Tax Sharing Agreement and shall be paid by the
Seller to the Buyer at the Closing to the extent that the Seller has
any available funds pursuant to the provisions of Section 9 of this
Agreement. To the extent that the account payable of the Buyer to the
Seller exceeds the tax sharing advances by the Buyer to the Seller,
such amount shall be
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owed by the Buyer to the Seller and shall not be extinguished upon the
termination of the Tax Sharing Agreement but, at the sole discretion
of the Buyer, shall be paid by the Buyer to the Seller at the Closing
or offset by the Buyer against any unpaid borrowings (principal,
interest and other charges) owed or owing to the Buyer from the
Seller.
18. Expenses. Each party to this Agreement shall be solely responsible for
and bear all of its own respective costs and expense, including, without any
limitation, all costs and expenses of legal counsel, accountants and other
advisers.
19. Termination. This Agreement may be terminated at any time prior to the
Closing upon the mutual written consent of the parties.; provided, however, that
in the event of such termination the provisions in Section 17 of this Agreement
shall survive such termination.
20. Notices. Any notice, request, instruction or other communication shall
be in writing and shall be delivered personally or by courier, by facsimile
transmission to the facsimile number for the recipient that is set forth below
with confirmation from the recipient thereof or by mail at the address for the
recipient that is set forth below:
If to the Seller:
OIS Optical Imaging Systems, Inc.
00000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President
Facsimile Number: 000-000-0000
If to the Buyer:
Guardian Industries Corp.
0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Group Vice President
Facsimile Number: 000-000-0000
21. Governing Law. This Agreement shall be construed and governed by the
internal laws of the State of Michigan without reference to the conflict of law
provisions thereof.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
23. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of both parties and Guardian and their respective successors and
assigns.
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24. Entire Agreement. This Agreement supersedes all prior agreements and
understanding of the parties hereto and constitutes the entire agreement between
the parties with respect to its subject matter. This Agreement may only be
changed, modified or amended by a writing, signed by the party against whom
enforcement of any waiver, change, modification, or discharge is sought.
IN WITNESS WHEREOF, the Seller and the Buyer have executed this
Agreement as of the date first above written.
OIS OPTICAL IMAGING SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
GUARDIAN INDUSTRIES CORP.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Group Vice President
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