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EXHIBIT 10.16
EXECUTION COPY
MASTER ASSET PURCHASE AGREEMENT
FOR THE PHOTOFINISHING BUSINESS OF NASHUA CORPORATION
BETWEEN
DISTRICT PHOTO INC.
AND
NASHUA CORPORATION
Dated as of March 10, 1998
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TABLE OF CONTENTS
Page
1. GENERAL...............................................................1
1.1 Definitions..................................................1
1.2 U.S. Dollars.................................................2
1.3 Schedules and Exhibits.......................................2
2. PURCHASE AND SALE.....................................................3
2.1 Agreement to Sell and to Purchase; Purchase Price............3
2.2 Payment of Purchase Price....................................3
2.3 Brokers......................................................3
3. [INTENTIONALLY OMITTED.]..............................................3
4. REPRESENTATIONS AND WARRANTIES OF SELLER..............................3
4.1 Organization, Good Standing and Qualification................3
4.2 Authority of Seller..........................................4
4.3 Governmental Approvals.......................................4
4.4 Litigation...................................................4
4.5 Fairness Opinion.............................................4
5. REPRESENTATIONS AND WARRANTIES OF BUYER...............................5
5.1 Organization and Good Standing...............................5
5.2 Authority of Buyer...........................................5
5.3 Governmental Approvals.......................................5
5.4 Litigation...................................................6
6. OTHER AGREEMENTS......................................................6
6.1 Conduct of the Business......................................6
6.2 Access to Records and Information............................6
6.3 Filings and Authorizations...................................6
6.4 Bulk Sales...................................................7
6.5 Maintenance of, and Access to Records........................7
6.6 Notice of Breaches; Updates..................................7
6.7 No Solicitation of Offers....................................8
6.8 Consummation of Agreement....................................9
6.9 Non-Competition..............................................9
6.10 Non-Solicitation............................................11
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Page
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF BUYER TO CLOSE....................................................11
7.1 Fulfillment of Covenants....................................11
7.2 Accuracy of Representations and Warranties..................11
7.3 Authorizations and Consents.................................11
7.4 No Litigation...............................................12
7.5 Seller's Certificate........................................12
7.6 Opinion of Counsel..........................................12
7.7 HSR Act and Similar Matters.................................12
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION
TO CLOSE.............................................................12
8.1 Fulfillment of Covenants....................................12
8.2 Accuracy of Representations and Warranties. ................12
8.3 Authorizations and Consents. ..............................13
8.4 No Litigation. .............................................13
8.5 Buyer's Certificate. .......................................13
8.6 Opinion of Counsel..........................................13
8.7 HSR Act and Similar Matters.................................13
9. CLOSING..............................................................13
9.1 General.....................................................13
9.2 At the Closing..............................................14
9.3. Canada......................................................14
10. INDEMNIFICATION......................................................15
10.1 Indemnification by Buyer....................................15
10.2 Indemnification by Seller...................................15
10.3 Time Limitation.............................................16
10.4 Third Party Claims..........................................16
10.5 Limitation..................................................17
10.6 Payment of Claims; Arbitration..............................18
10.7 Limitation on Remedies......................................18
11. GUARANTEES...........................................................18
12. TERMINATION..........................................................19
12.1 Termination Events..........................................19
12.2 Effect of Termination. .....................................20
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Page
13. MISCELLANEOUS........................................................20
13.1 Survival of Representations and Warranties..................20
13.2 Amendments..................................................20
13.3 Notices.....................................................20
13.4 Expenses....................................................22
13.5 Waiver......................................................22
13.6 Headings....................................................22
13.7 Entire Agreement............................................22
13.8 Assignment..................................................22
13.9 Governing Law; Time of the Essence..........................23
13.10 Counterparts................................................23
13.11 Publicity...................................................23
13.12 Specific Performance........................................23
13.13 Jurisdiction................................................23
13.14 Legal Fees..................................................23
13.15 Actions.....................................................23
13.16 Terms.......................................................24
13.17 Construction................................................24
SCHEDULES [Not Included in Filing]
Schedule 1.1 - Asset Purchasers and Asset Sellers
Schedule 4.2 - Authority of Seller
Schedule 4.3 - Governmental Approvals
Schedule 4.4 - Litigation
Schedule 5.2 - Authority of Buyer
Schedule 5.3 - Governmental Approvals
Schedule 5.4 - Litigation
EXHIBITS [Not Included in Filing]
Exhibit A- Asset Purchase Agreement (U.S.)
Exhibit B- Asset Purchase Agreement (CANADA)
Exhibit C- Asset Purchase Agreement (UK)
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MASTER ASSET PURCHASE AGREEMENT
This MASTER ASSET PURCHASE AGREEMENT (this "Agreement") dated as of
March 10, 1998 between Nashua Corporation, a corporation organized under the
laws of the State of Delaware ("Seller"), and District Photo Inc., a corporation
organized under the laws of the District of Columbia ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller desires to sell or cause to be sold, and Buyer desires
to acquire, the Business, as hereinafter defined; and
WHEREAS, the Business will be transferred to Buyer pursuant hereto by
means of a sale and purchase of the Acquired Assets, as hereinafter defined, and
the assumption of the Assumed Liabilities, as hereinafter defined.
NOW, THEREFORE, the parties hereto agree as follows:
1. GENERAL.
1.1 Definitions. The terms defined in this Section 1.1, whenever used
in this Agreement, shall have the following meanings for all purposes of this
Agreement:
"Acquired Assets" means the Assets purchased by Buyer or the Asset
Purchasers pursuant to the Asset Purchase Agreements.
"Acquisition Proposal" shall have the meaning given such term in
Section 6.7(a).
"Affiliate" means any entity that directly, or indirectly through one
or more entities, controls or is controlled by, or is under common control with,
the person specified. As used herein, "control", "controls" and "controlled"
means the ownership of 50% or more of the voting interests of the entity in
question.
"Assets" means substantially all of the assets, properties, rights,
privileges, claims, contracts and interests of every kind and description, real,
personal or mixed, tangible or intangible, absolute or contingent, wherever
situated, whether or not carried or reflected on the books and records of the
Asset Sellers, owned or held by the Asset Sellers and used in the conduct of the
Business.
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"Asset Purchaser" and "Asset Purchasers" means, respectively, each and
all of the entities designated in Schedule 1.1 or to be designated within seven
(7) days prior to the Closing in accordance with this Agreement.
"Asset Purchase Agreement" and "Asset Purchase Agreements" means,
respectively, each and all of those agreements attached hereto as Exhibits A, B
and C.
"Asset Seller" and "Asset Sellers" means, respectively, each and all of
the entities designated as such in Schedule 1.1.
"Business" means the business and operations conducted by the Asset
Sellers, consisting primarily of photofinishing, and marketing and sale of
photo-related products, in the United States, Canada, and the United Kingdom.
"Buyer's Knowledge" means the actual knowledge or conscious awareness,
without independent investigation, of any executive officer of Buyer.
"Closing" shall have the meaning given such term in Section 9.1.
"Closing Date" shall have the meaning given such term in Section 9.1.
"Disclosure Schedule or Disclosure Schedules" means any disclosure
schedule attached to this Agreement or to any Asset Purchase Agreement.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended.
"Purchase Price" shall have the meaning given such term in Section 2.1.
"Seller's Knowledge" means the actual knowledge or conscious awareness,
without independent investigation, of any executive officer of Seller.
"U.S." means the United States of America.
1.2 U.S. Dollars. Unless otherwise indicated herein, in the Asset
Purchase Agreements, or on the Schedules hereto or thereto, all references to
amounts in dollars ($) shall mean U.S. dollars. For purposes of determining the
application of the terms of this Agreement to items denominated in a currency
other than U.S. dollars, the relevant currency shall be converted to U.S.
dollars at the applicable spot exchange rate published in the currency crossrate
table of The Wall Street Journal (New York edition) on the date of this
Agreement (or, if applicable, on the date as of which such calculation is made).
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1.3 Schedules and Exhibits. A "Schedule" which is identified in this
Agreement or any Asset Purchase Agreement means part of the Disclosure Schedule
prepared by Seller or any Asset Seller and delivered to Buyer or any Asset
Purchaser pursuant to this Agreement or any Asset Purchase Agreement to disclose
factual matters concerning the Business. An "Exhibit" is an agreement or other
document attached to this Agreement or any Asset Purchase Agreement and made a
part hereof or thereof.
2. PURCHASE AND SALE.
2.1 Agreement to Sell and to Purchase; Purchase Price. Subject to the
terms and conditions set forth herein, Seller agrees to cause to be sold,
conveyed, assigned, transferred and delivered the Acquired Assets by the Asset
Sellers to Buyer or the Asset Purchasers pursuant to the Asset Purchase
Agreements. Subject to the terms and conditions herein set forth, Buyer agrees
to purchase, or cause to be purchased by the Asset Purchasers, the Acquired
Assets and to assume, or cause to be assumed by the Asset Purchasers, those
liabilities of the Asset Sellers specified in the Asset Purchase Agreements (the
"Assumed Liabilities"). The aggregate purchase price for the Acquired Assets
(the "Purchase Price") shall be Fifty-two Million, Five Hundred Thousand Dollars
($52,500,000), subject to adjustment as provided in the Asset Purchase
Agreements (but not subject to adjustment for Buyer's and the Asset Purchasers'
assumption of the Assumed Liabilities) and shall be allocated as reflected in
the Asset Purchase Agreements.
2.2 Payment of Purchase Price. Subject to the terms and conditions set
forth herein, in full consideration for the sale, conveyance, assignment,
transfer and delivery of the Acquired Assets, Buyer shall deliver or cause to be
delivered by the Asset Purchasers to Seller the Purchase Price payable at the
Closing by wire transfer of immediately available funds to an account or
accounts designated in writing by Seller for the benefit of each Asset Seller
(with Seller acting as agent for each Asset Seller).
2.3 Brokers. Except for BT Alex. Xxxxx Incorporated, whose fees and
expenses shall be the sole responsibility of Seller, Seller represents and
warrants that it has not employed or incurred any liability to any broker, agent
or finder in connection with any transaction contemplated by this Agreement, nor
has it employed or retained any other person whose compensation is directly
contingent on the closing of the transactions contemplated by this Agreement.
Buyer represents and warrants that it has not employed or incurred any liability
to any broker, agent or finder in connection with any transaction contemplated
by this Agreement.
3. [INTENTIONALLY OMITTED.]
4. REPRESENTATIONS AND WARRANTIES OF SELLER.
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Seller represents and warrants to Buyer that the statements contained
in this Article 4 are on the date hereof, and on the Closing Date will be, true
and correct:
4.1 Organization, Good Standing and Qualification. Seller is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. Seller has full corporate power and authority to
own or lease its properties and carry on its business as presently conducted.
4.2 Authority of Seller. Seller has all necessary authority and power
to enter into this Agreement and to carry out the transactions contemplated
hereby. The execution, delivery and performance by Seller of this Agreement and
the consummation by Seller of the transactions contemplated hereby have been
duly authorized by all necessary corporate action of Seller and no other action
on the part of Seller is required in connection therewith. This Agreement
constitutes, or when executed and delivered will constitute, the valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms. The execution, delivery and performance by Seller of this Agreement does
not, and the performance by Seller of the transactions contemplated hereby will
not:
(a) violate any provision of the Certificate of Incorporation
or By-Laws of Seller; or
(b) subject to the requirements of the HSR Act, violate any
laws of the United States or other jurisdiction applicable to Seller or, except
as expressly contemplated by this Agreement, require Seller to obtain any
approval, consent or waiver of any person or entity (governmental or otherwise)
that has not been obtained or made; or
(c) except as disclosed in Schedule 4.2, result in a violation
or any breach of or constitute a default (or an event which with notice or lapse
of time or both would become a default) under any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Seller is a party, except for any such
violations, breaches, defaults or other occurrences which would not in any
respect prevent or delay Seller from performing its obligations under this
Agreement.
4.3 Governmental Approvals. Except for applicable requirements of the
HSR Act, or as disclosed in Schedule 4.3, neither Seller nor any Asset Seller is
required to submit any notice, report or other filing with or to any
governmental body in connection with the execution, delivery or performance of
this Agreement by Seller and the consummation of the transactions contemplated
hereby.
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4.4 Litigation. Except as disclosed in Schedule 4.4, no litigation,
claim, administrative proceeding or other proceeding or governmental
investigation is pending or, to Seller's Knowledge, threatened, which would
prevent or delay the execution, delivery or performance of this Agreement or any
agreement, instrument or document contemplated hereby by Seller or the
consummation by Seller of the transactions contemplated hereby.
4.5 Fairness Opinion. Seller has received the opinion from BT Alex.
Xxxxx Incorporated to Seller, dated March 8, 1998, that the consideration to be
received by Seller for the Business pursuant to this Agreement and the Asset
Purchase Agreements is fair to Seller from a financial point of view.
5. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller that the statements contained
in this Article 5 are on the date hereof, and as of the Closing Date will be,
true and correct:
5.1 Organization and Good Standing. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the
District of Columbia. Buyer has full corporate power and authority to own or
lease its properties and carry on its business as presently conducted.
5.2 Authority of Buyer. Buyer has all necessary authority and power to
enter into this Agreement and to carry out the transactions contemplated hereby.
The execution, delivery and performance by Buyer of this Agreement and the
consummation by Buyer of the transactions contemplated hereby have been duly
authorized by all necessary corporate action of Buyer and no other action on the
part of Buyer is required in connection therewith. This Agreement constitutes,
or when executed and delivered will constitute the valid and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms. The execution,
delivery and performance by Buyer of this Agreement does not, and the
performance by Buyer of the transactions contemplated hereby, will not:
(a) violate any provision of the Articles of Incorporation or
By-Laws of Buyer; or
(b) subject to the requirements of the HSR Act, violate any
laws of the United States or other jurisdiction applicable to Buyer or, except
as expressly contemplated by this Agreement, require Buyer to obtain any
approval, consent or waiver of any person or entity (governmental or otherwise)
that has not been obtained or made; or
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(c) except as disclosed in Schedule 5.2, result in violation
or any breach of or constitute a default (or an event which with notice or lapse
of time or both would become a default) under any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Buyer is a party, except for any such
violations, breaches, defaults or other occurrences which would not in any
respect prevent or delay Buyer from performing its obligations under this
Agreement.
5.3 Governmental Approvals. Except for applicable requirements of the
HSR Act, or as disclosed in Schedule 5.3, neither Buyer nor any Asset Purchaser
is required to submit any notice, report or other filing with or to any
governmental body in connection with the execution, delivery or performance of
this Agreement by Buyer and the consummation of the transactions contemplated
hereby.
5.4 Litigation. Except as disclosed in Schedule 5.4, no litigation,
claim, administrative proceeding or other proceeding or governmental
investigation is pending or, to Buyer's Knowledge, threatened, which would
prevent or delay the execution, delivery or performance of this Agreement or any
agreement, instrument or document contemplated hereby by Buyer or the
consummation by Seller of the transactions contemplated hereby.
6. OTHER AGREEMENTS.
6.1 Conduct of the Business. During the period from the date of this
Agreement to the Closing, Seller shall, and shall cause each Asset Seller to,
conduct the Business substantially in the same manner as conducted prior to the
date hereof, shall maintain the Acquired Assets in a normal business manner
consistent with past practice and shall pay its debts (including without
limitation accounts payable) as they come due consistent with past practice.
6.2 Access to Records and Information. Buyer shall have such access as
is provided for in Section 6.6 of the Asset Purchase Agreements.
6.3 Filings and Authorizations. Each of Buyer and Seller shall make an
HSR Act filing (the "HSR Act Filing") no later than March 13, 1998 (the "HSR
Filing Date"), and shall coordinate their filing dates to enable contemporaneous
filing. Buyer shall pay the filing fee required to be paid to the Federal Trade
Commission in connection with the HSR Act Filing. Each of Buyer and Seller shall
pay all other fees and expenses incurred by
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Buyer or Seller, respectively, in connection with the HSR Act Filing. Buyer and
Seller shall cooperate with each other and promptly take or cause to be taken
all actions and do or cause to be done all things necessary, proper or advisable
to obtain favorable review of the proposed transaction under the HSR Act. Buyer
and Seller each agrees to use commercially reasonable efforts to resolve any
objections that may be asserted with respect to the transactions contemplated
hereunder by the Department of Justice, the Federal Trade Commission, any State
Attorney General or any other governmental entity (including, without
limitation, objections under any antitrust laws); provided, however, that
neither party shall be required to accept any condition or restriction,
including, without limitation, the disposition of assets, which would materially
adversely impact the economic or business benefits of the transactions
contemplated hereby. Buyer and Seller agree to use reasonable efforts to take
such action as may be required by any federal or state court of the United
States, in any suit brought by a private party or governmental entity
challenging the transaction hereunder as violative of the antitrust laws, in
order to avoid the entry of, or to cause the withdrawal or voiding of, any
injunction, temporary restraining order or other order which has the effect of
preventing the consummation of the transactions contemplated by this Agreement.
6.4 Bulk Sales. It may not be practicable to comply or attempt to
comply with the procedures of the bulk sales or bulk transfers acts or laws of
any or all of the states or other jurisdictions in which the Acquired Assets are
situated (or of any state or jurisdiction) which may be asserted to be
applicable to the transactions contemplated hereby. Buyer and Seller therefore
waive any requirements for compliance with any or all of such laws.
6.5 Maintenance of, and Access to Records. Buyer shall, and shall cause
each Asset Purchaser to, permit Seller and the Asset Sellers to have reasonable
access to all business records turned over to Buyer or the Asset Purchasers in
accordance with this Agreement or the Asset Purchase Agreements; provided,
however, that such access shall be allowed only during normal business hours,
with reasonable advance notice and in such manner as not to interfere
unreasonably with the normal business operations of the Business. Buyer shall
preserve and maintain the records relating to the Business which are part of the
Acquired Assets for at least seven (7) years after the Closing Date or longer if
required by the Internal Revenue Service or any other government agency,
domestic or foreign.
6.6 Notice of Breaches; Updates.
(a) Seller shall promptly deliver or cause any Asset Seller to
deliver promptly to Buyer written notice of any event or development that would
(i) render any statement, representation or warranty of Seller in
this Agreement or of any Asset Seller in
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any Asset Purchase Agreement (including exceptions set forth in any Schedule)
inaccurate or incomplete, or (ii) constitute or result in a breach by Seller or
any Asset Seller of, or a failure by Seller or any Asset Seller to comply with,
any agreement or covenant in this Agreement or any Asset Purchase Agreement or
related to the Business applicable to Seller or any Asset Seller, as the case
may be. No such disclosure shall be deemed to avoid or cure any such
misrepresentation or breach.
(b) Buyer shall promptly deliver to Seller written notice of
any event or development that would (i) render any statement, representation or
warranty of Buyer in this Agreement or any Asset Purchase Agreement inaccurate
or incomplete, or (ii) constitute or result in a breach by Buyer of, or a
failure by Buyer to comply with, any agreement or covenant in this Agreement or
any Asset Purchase Agreement or related to the Business applicable to Buyer or
any Asset Purchasers, as the case may be. No such disclosure shall be deemed to
avoid or cure any such misrepresentation or breach.
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6.7 No Solicitation of Offers.
(a) Unless and until this Agreement shall have been terminated
by either party pursuant to Article 12 hereof, Seller covenants that following
the date hereof it and the Asset Sellers will not (and shall use its and their
best efforts to ensure that none of its officers, directors, agents,
representatives or Affiliates) take or cause, directly or indirectly, any of the
following actions with any party other than Buyer or its designees: (i) solicit,
initiate, or participate in any negotiations, inquiries or discussions with
respect to any offer or proposal to acquire all or a significant part of the
Business or the Acquired Assets whether by merger, consolidation, other business
combination, purchase of assets, tender or exchange offer or otherwise (each of
the foregoing, an "Acquisition Proposal"); (ii) disclose, in connection with an
Acquisition Proposal, any information with respect to, or otherwise cooperate in
any way with, or assist or participate in, any effort or attempt by any other
person to do or seek any of the foregoing; (iii) enter into or execute any
agreement relating to an Acquisition Proposal; or (iv) make or authorize any
public statement, recommendation or solicitation in support of any Acquisition
Proposal other than with respect to the transactions contemplated by this
Agreement; provided, however, that nothing contained herein shall prohibit
Seller or any Asset Seller from taking any of the actions specified above or in
connection with an unsolicited Acquisition Proposal that involves consideration
that is economically superior to the consideration to be paid hereunder and does
not contemplate any condition relating to the obtaining of funds for such
Acquisition Proposal, provided, that in each case, its Board of Directors
determines in good faith, after consultation with outside legal counsel, that
such action is required by the fiduciary duties of such directors under
applicable state law. Seller shall immediately cease and terminate, and cause
any of the Asset Sellers to cease and terminate immediately all existing
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
(b) In the event a Seller or an Asset Seller shall receive any
Acquisition Proposal, directly or indirectly, or any request for disclosure with
respect to information of the type referred to in clause (a)(ii) above, it
shall, prior to taking any action in response thereto, inform Buyer of such fact
and shall, in any such notice to Buyer, indicate in reasonable detail the
identity of the person making such proposal, offer, inquiry or contact and the
terms and conditions of such proposal, offer, inquiry or contact. Subject to the
fiduciary obligations of the directors and officers under applicable law, Seller
agrees not to release any third party from, or waive any provision of, and shall
cause any Asset Seller not to release any third party from, or waive, any
confidentiality or standstill agreement relating to the Business and to which
such Seller or Asset Seller is a party. Notwithstanding the foregoing, Seller
shall not enter into and shall cause any Asset Seller not to enter into a
definitive agreement to transfer the Acquired Assets or any portion of
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Seller's Business to any third party until and unless this Agreement has been
terminated pursuant to Section 12 hereof.
6.8 Consummation of Agreement. Seller will use its reasonable best
efforts to cause all of the conditions set forth in Article 7 to be satisfied.
Buyer will use its reasonable best efforts to cause all of the conditions set
forth in Article 8 to be satisfied.
6.9 Non-Competition.
(a) Period and Conduct. As further consideration for the
purchase and sale of the Acquired Assets and the transactions contemplated by
this Agreement and the Asset Purchase Agreements, during the period commencing
on the Closing Date through and until the date five (5) years following the
Closing Date (the "Restricted Period"), Seller covenants and agrees that it
shall not and shall cause each of its Affiliates not to, for any reason
whatsoever, directly or indirectly, either individually or as owner, partner,
stockholder, consultant, lender or otherwise:
(i) in the Prescribed Territory (as defined in
Section 6.9(c)), compete with Buyer in the provision of photo-finishing services
or the manufacture, production, design, engineering, importation, purchase,
marketing, sale, distribution, research or development of photo-related products
(excluding paper, toner, printer cartridges and other products used, intended to
be used or capable of being used for the reproduction of images by means other
than silver halide-based processes) the same as, similar to, or having a similar
purpose or use to those services provided by Buyer or those products
manufactured, produced, designed, engineered, imported, purchased, marketed,
sold distributed or developed (or being developed) by Seller on or prior to the
Closing or by Buyer after the Closing (collectively, the "Products"); or
(ii) in the Prescribed Territory, solicit, or accept
or purchase orders or business of any kind relating to the provision of
photo-finishing services or the manufacture, production, design, engineering,
importation, purchase, marketing, sale, distribution, research or development of
any Products from any customer or supplier of Seller on or prior to the Closing
or of Buyer after the Closing.
(b) Confidential Information. Seller acknowledges and agrees
that the use, disclosure or publication by it, or by any of its Affiliates, of
any Confidential Information (defined below) after the Closing could cause the
Business substantial loss and damages that could not be readily calculated and
for which no remedy at law would be adequate. Accordingly, Seller covenants and
agrees with Buyer that Seller will not and will cause its Affiliates not to at
any time, except with the prior written consent of Buyer, directly or
indirectly, use, disclose, or publish, or permit others not so authorized to
use,
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disclose, or publish any Confidential Information. Notwithstanding the
foregoing, Seller and its Affiliates may disclose such information, only if and
to the extent: (i) Seller or its Affiliates in good faith believes on the advice
of counsel that it or they are required by law, (ii) required by court order or
subpoena (a copy of which shall be provided to Buyer ten (10) days prior to
disclosure), or (iii) available in the public domain. As used in this Agreement,
the terms "Confidential Information" includes, without limitation, information
Seller or its Affiliates have not previously disclosed to the public with
respect to Seller's or its Affiliates' past, present or future operations,
services, products, research, inventions, discoveries, drawings, designs, plans,
processes, models, technical information, facilities, methods, trade secrets,
copyrights, software, source code, systems, patents, procedures, manuals,
specifications, any other intellectual property, confidential reports, price
lists, pricing formulas, customer lists, financial information (including the
revenues, costs, or profits associated with any products or services of the
Business), business plans, lease structure, projections, prospects,
opportunities or strategies, acquisitions or mergers, advertising or promotions,
personnel matters, legal matters of the Business, any other confidential and
proprietary information, and any other information not generally known outside
the Business that may be of value to the Business but excludes any information
already properly in the public domain. "Confidential Information" also includes
confidential and proprietary information and trade secrets that third parties
entrust to Seller or its Affiliates in confidence. Seller acknowledges and
agrees that the rights and obligations set forth in this Section 6.9(b) will
continue indefinitely.
(c) Prescribed Territory. Seller and its Affiliates shall
refrain from engaging in the activities described in this Section 6.9 during the
period specified in Section 6.9(a) in the United States, the United Kingdom and
Canada (the "Prescribed Territory").
(d) Remedies. Inasmuch as any breach, or failure to comply
with, Section 6.9 of this Agreement will cause serious, substantial and
irreparable damage to Buyer, if Seller or any of its Affiliates should in any
way breach, or fail to comply with, the terms of Section 6.9 of this Agreement,
Buyer shall be entitled to an injunction restraining Seller and its Affiliates
from such breach or failure. All remedies expressly provided for herein are
cumulative of any and all other remedies now existing at law or in equity. Buyer
shall, in addition to the remedies herein provided, be entitled to avail itself
of all such other remedies as may now or hereafter exist at law or in equity for
compensation, and for the specific enforcement of the covenants contained
herein. Resort to any remedy provided for hereunder or provided for by law shall
not prevent the concurrent or subsequent employment of any other appropriate
remedy or remedies, or preclude the recovery by Buyer of monetary damages and
compensation.
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(e) Severability. Each subsection of this Section 6.9
constitutes a separate and distinct provision hereof. In the event that any
provision of this Section 6.9 shall finally be determined to be invalid,
ineffective or unenforceable, every other provision of this Section 6.9 shall
remain in full force and effect. The invalid, ineffective or unenforceable
provision shall, without further action by the parties, be automatically amended
to effect the original purpose and intent of the invalid, ineffective or
unenforceable provision to the maximum extent enforceable under applicable law;
provided, however, that such amendment shall apply only with respect to the
operation of such provision in the particular jurisdiction in which such
adjudication is made.
6.10 Non-Solicitation. During the period commencing on the Closing Date
and through and until the date five (5) years after the Closing Date, Seller and
its Affiliates shall not, for any reason whatsoever, directly or indirectly,
call upon or solicit any Covered Employee for the purpose or with the intent of
enticing such employee away from or out of the employ of Buyer. As used herein,
"Covered Employee" means an employee of Seller or any Affiliate on the Closing
Date who accepts employment with Buyer or any Asset Purchaser on or promptly
after the Closing Date.
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER TO CLOSE.
The obligation of Buyer to close the transactions contemplated by this
Agreement shall be subject to the satisfaction of each of the following
conditions precedent, each of which may be waived, in whole or in part, in the
sole discretion of Buyer, by a written instrument signed by Buyer.
7.1 Fulfillment of Covenants. Seller and the Asset Sellers shall have
fulfilled or complied with each covenant, obligation and agreement required to
be fulfilled or complied with by them prior to the Closing Date under this
Agreement and the Asset Purchase Agreements.
7.2 Accuracy of Representations and Warranties. The representations and
warranties of Seller and of the Asset Sellers contained in this Agreement and in
the Asset Purchase Agreements shall be true and correct on the date when made
and shall be repeated at and as of the Closing Date and shall be true and
correct as so made again (unless a representation is made as of a specific date,
and in such event it shall be true and correct as of such date); provided,
however, that in the event Seller has provided Buyer with written notice prior
to the Closing Date of an event or development arising after the date hereof and
prior to the Closing Date that causes any representation or warranty of Seller
in this Agreement not to be true and correct on the Closing Date (a "Seller's
Notice"), then Buyer shall, in its sole discretion, either (i) elect not to
close the transactions contemplated by this Agreement by reason of the failure
of the condition to Closing specified in this Section 7.2 to be satisfied, or
(ii) elect to close the transactions
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contemplated by this Agreement, notwithstanding the failure of the condition to
Closing specified in this Section 7.2 to be satisfied, in which event Buyer
shall be deemed to have waived the condition to Closing specified in this
Section 7.2 with respect to the matters specified in Seller's Notice and shall
not seek or be entitled to indemnification under Article 10 with respect to only
the matters specified in Seller's Notice.
7.3 Authorizations and Consents. Seller and each Asset Seller shall
have obtained and made all governmental or other authorizations, approvals,
consents, permits, waivers and filings which are necessary under all applicable
laws and regulations for the consummation by Seller and each Asset Seller of the
transactions contemplated by this Agreement and the Asset Purchase Agreements.
7.4 No Litigation. No injunction shall be outstanding which would
prevent consummation of the transactions contemplated by this Agreement and the
Asset Purchase Agreements. No provision of any applicable domestic law or
regulation, and no judgment, injunction, order or decree of a governmental
authority that has the effect of making the Closing illegal or otherwise
restrains or prohibits the Closing from occurring shall be in effect (each party
agreeing to use commercially reasonable efforts, including appeals to higher
courts, to have any such judgment, injunction, order or decree lifted).
7.5 Seller's Certificate. Seller shall have delivered to Buyer a
certificate dated the Closing Date and executed by an executive officer of
Seller to the effect that each of the conditions specified in Sections 7.1
through 7.4 is satisfied.
7.6 Opinion of Counsel. Buyer shall have received from Xxxx and Xxxx
LLP a legal opinion addressed to Buyer, dated as of the Closing Date, in a form
reasonable and customary for transactions of this nature.
7.7 HSR Act and Similar Matters. All applicable waiting periods (and
any extensions thereof) under the HSR Act shall have expired or otherwise been
terminated, and all necessary authorizations, approvals, consents, permits or
waivers under any similar foreign laws shall have been obtained.
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE.
The obligation of Seller to close the transactions contemplated by this
Agreement shall be subject to the satisfaction of each of the following
conditions precedent, each of which may be waived, in whole or in part, in the
sole discretion of Seller, by a written instrument signed by Seller.
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8.1 Fulfillment of Covenants. Buyer and the Asset Purchasers shall have
fulfilled or complied with each covenant, obligation and agreement required to
be fulfilled or complied with by them prior to the Closing Date under this
Agreement and the Asset Purchase Agreements.
8.2 Accuracy of Representations and Warranties. The representations and
warranties of Buyer contained in this Agreement and in the Asset Purchase
Agreements shall be true and correct on the date when made and shall be repeated
at and as of the Closing Date and shall be true and correct as so made again
(unless a representation is made as of a specific date, and in such event it
shall be true and correct as of such date); provided, however, that in the event
Buyer has provided Seller with written notice prior to the Closing Date of an
event or development arising after the date hereof and prior to the Closing Date
that causes any representation or warranty of Buyer in this Agreement not to be
true and correct on the Closing Date (a "Buyer's Notice"), then Seller shall, in
its sole discretion, either (i) elect not to close the transactions contemplated
by this Agreement by reason of the failure of the condition to Closing specified
in this Section 8.2 to be satisfied, or (ii) elect to close the transactions
contemplated by this Agreement, notwithstanding the failure of the condition to
Closing specified in this Section 8.2 to be satisfied, in which event Seller
shall be deemed to have waived the condition to Closing specified in this
Section 8.2 with respect to the matters specified in Buyer's Notice and shall
not seek or be entitled to indemnification under Article 10 with respect to only
the matters specified in Buyer's Notice.
8.3 Authorizations and Consents. Buyer and each Asset Purchaser shall
have obtained and made all governmental or other authorizations, approvals,
consents, permits, waivers and filings which are necessary under all applicable
laws and regulations for the consummation by Buyer and each Asset Purchaser of
the transactions contemplated by this Agreement and the Asset Purchase
Agreements.
8.4 No Litigation. No injunction shall be outstanding which would
prevent consummation of the transactions contemplated by this Agreement or the
Asset Purchase Agreements. No provision of any applicable domestic law or
regulation, and no judgment, injunction, order or decree of a governmental
authority that has the effect of making the Closing illegal or otherwise
restrains or prohibits the Closing from occurring shall be in effect (each party
agreeing to use commercially reasonable efforts, including appeals to higher
courts, to have any such judgment, injunction, order or decree lifted).
8.5 Buyer's Certificate. Buyer shall have delivered to Seller a
certificate dated the Closing Date and executed by an executive officer of Buyer
to the effect that each of the conditions specified in Sections 8.1 through 8.4
is satisfied.
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8.6 Opinion of Counsel. Seller shall have received from Xxxxxx, Culter
& Xxxxxxxxx a legal opinion addressed to Seller, dated as of the Closing Date,
in a form reasonable and customary for transactions of this nature.
8.7 HSR Act and Similar Matters. All applicable waiting periods (and
any extensions thereof) under the HSR Act shall have expired or otherwise been
terminated, and all necessary authorizations, approvals, consents, permits or
waivers under any similar foreign laws shall have been obtained.
9. CLOSING.
9.1 General. Subject to the conditions set forth in Articles 7 and 8,
the consummation of the transactions contemplated by this Agreement and the
Asset Purchase Agreements (the "Closing") shall take place at the offices of
Xxxx and Xxxx LLP, Boston, Massachusetts at 10:00 AM (Eastern Time), on the
later of (i) April 1, 1998 or (ii) the third business day following satisfaction
or waiver of each of the conditions contained in this Agreement and the Asset
Purchase Agreements, or on such other date as Buyer and Seller may mutually
agree (such date being herein referred to as the "Closing Date"). Failure to
close on such date shall not relieve either party hereto of its obligations
under this Agreement. All transactions at the Closing shall be deemed to take
place simultaneously at 12:01 a.m. Eastern Time on the Closing Date, and no
transaction shall be deemed to have been completed and no document or
certificate shall be deemed to have been delivered until all transactions are
completed and all documents are delivered.
9.2 At the Closing.
(a) Seller shall deliver to Buyer, subject to satisfaction of
the conditions precedent to the obligations of Seller stated herein, the various
certificates, instruments and documents referred to in Sections 7.5 and 7.6;
(b) Buyer shall deliver to Seller, subject to satisfaction of
the conditions precedent to the obligations of Buyer stated herein, the various
certificates, instruments and documents referred to in Sections 8.5 and 8.6;
(c) Seller shall cause each Asset Seller to perform, pursuant
to its respective Asset Purchase Agreement, all obligations to be performed by
it thereunder at the Closing;
(d) Buyer shall cause each Asset Purchaser to perform,
pursuant to its respective Asset Purchase Agreement, all obligations to be
performed by it thereunder at the Closing; and
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(e) Buyer shall pay to Seller the Purchase Price in the manner
and the amount set forth in Sections 2.1 and 2.2.
9.3. Canada. Notwithstanding any other provision in this Agreement or
any Asset Purchase Agreement to the contrary:
(a) Seller shall use its reasonable best efforts to obtain any
consents and approvals required to assign or transfer fully all rights of its
Affiliate, Nashua Photo Limited, under the Canadian postal contract (the
"Canadian Postal Contract") to Buyer, from the date hereof until such assignment
or transfer has been obtained.
(b) Neither Buyer nor any Asset Purchaser shall be obligated
to purchase the Acquired Assets or assume the Assumed Liabilities under the
Asset Purchase Agreement by and between Buyer and Nashua Photo Limited, a
Canadian Corporation (the "Canadian Asset Purchase Agreement"), or consummate
the transactions contemplated thereunder unless and until such time as the
Canadian Postal Contract shall have been fully assigned and transferred to
Buyer; provided, that, such assignment and transfer be obtained no later than
ninety (90) days following the Closing Date.
(c) If the transactions contemplated under the Canadian Asset
Purchase Agreement are not consummated on the Closing Date because the Canadian
Postal Contract has not been fully assigned and transferred to Buyer, the
Purchase Price payable to Seller pursuant to this Agreement shall be reduced by
$2,000,000.
(d) If the Canadian Postal Contract has been fully assigned to
Buyer within ninety (90) days of the Closing Date, Buyer and Seller shall be
obligated to consummate the transactions contemplated by the Canadian Asset
Purchase Agreement; provided, that, all other terms and conditions thereunder or
hereunder have been fully satisfied, and the Purchase Price for the Acquired
Assets under the Canadian Asset Purchase Agreement shall be $2,000,000.
10. INDEMNIFICATION.
10.1 Indemnification by Buyer. From and after the Closing Date, Buyer
shall indemnify, defend and hold Seller and the Asset Sellers, and their
directors, officers and Affiliates (collectively, the "Seller Group") harmless
from and against any and all claims, losses, liabilities, damages, costs and
expenses (including reasonable attorney's fees to the extent permitted by law),
net of any benefits received by the Seller Group including tax benefits,
insurance proceeds or warranty reimbursements (collectively, "Losses") that may
be incurred by, or asserted against, Seller Group, arising from or related to,
directly or indirectly:
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(a) the failure of Buyer or any Asset Purchaser to assume,
pay, perform and discharge the Assumed Liabilities;
(b) any claim arising out of the operation of the Business or
Buyer's or any Asset Purchaser's conduct after the Closing;
(c) any breach of any representation or warranty of Buyer
contained herein (unless waived in writing by Seller prior to the Closing); or
(d) any breach of any covenant, obligation or agreement of
Buyer or the Asset Purchasers contained herein or in any Asset Purchase
Agreement (unless waived in writing by Seller prior to the Closing).
10.2 Indemnification by Seller. From and after the Closing Date, Seller
shall indemnify, defend and hold Buyer and the Asset Purchasers, and their
directors, officers and Affiliates (collectively, the "Buyer Group") harmless
from and against any and all Losses that may be incurred by, or asserted
against, Buyer Group, arising from or related to, directly or indirectly:
(a) the failure of Seller or any Asset Seller to assume, pay,
perform and discharge all liabilities other than the Assumed Liabilities;
(b) any claim arising out of the operation of the Business or
Seller's or any Assets Seller's conduct prior to or on the Closing, other than
those claims specifically disclosed on the Disclosure Schedules, Assumed
Liabilities or any other obligations or any liabilities to be paid or discharged
by Buyer as provided in this Agreement or any Asset Purchase Agreement;
(c) any breach of any representation or warranty of Seller or
the Asset Sellers contained herein or in any Asset Purchase Agreement (unless
waived in writing by Buyer prior to the Closing);
(d) any breach of any covenant, obligation or agreement of
Seller or the Asset Sellers contained herein or in any Asset Purchase Agreement
(unless waived in writing by Buyer prior to the Closing);
(e) any claims made by creditors, with respect to
non-compliance with any bulk transfer law, except to the extent that such claims
result from Buyer's failure to pay when due the Assumed Liabilities; or
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(f) litigation matters disclosed on Schedule 5.1(m) to the
Asset Purchase Agreements (except with respect to any action taken by Buyer
after the Closing in breach of the Xxxxxx matter as disclosed and except for the
U.S. Postal Rate litigation referred to in Schedule 5.1(m) of the U.S. Asset
Purchase Agreement which Buyer acknowledges Seller makes no indemnification).
10.3 Time Limitation. The right of Seller Group or Buyer Group, as
applicable, to indemnification under Section 10.1 or Section 10.2, respectively,
shall apply only to those claims for indemnification which are delivered
pursuant hereto during the applicable period set forth in Section 13.1.
Notwithstanding anything in this Agreement to the contrary, there shall be no
time limitation for claims for indemnification under Sections 10.1(a), 10.1(b),
10.2(a) and 10.2(b).
10.4 Third Party Claims.
(a) Notification. If any third party shall notify any party
(the "Indemnified Party") with respect to any matter (a "Third Party Claim")
which may give rise to a claim for indemnification against the other party (the
"Indemnifying Party") under this Section 10.4, then the Indemnified Party shall
promptly (but no later than fifteen (15) days after notice is received by the
Indemnified Party of any Third Party Claim) notify the Indemnifying Party
thereof in writing; provided, however, that no delay on the part of the
Indemnified Party in notifying the Indemnifying Party shall relieve the
Indemnifying Party from any obligation hereunder unless (and then solely to the
extent) the Indemnifying Party thereby is prejudiced.
(b) Right of Indemnitor To Defend. The Indemnifying Party
shall have the right to defend the Indemnified Party against the Third Party
Claim with counsel of its choice satisfactory to the Indemnified Party so long
as (A) the Indemnifying Party notifies the Indemnified Party in writing, within
thirty (30) days after notice to the Indemnifying Party pursuant to Section
10.4(a) of such Third Party Claim, that the Indemnifying Party shall indemnify
the Indemnified Party from and against the entirety of any Losses the
Indemnified Party may suffer resulting from, arising out of, relating to, in the
nature of, or caused by the Third Party Claim, (B) the Indemnifying Party
provides the Indemnified Party with reasonable evidence that the Indemnifying
Party has the financial resources to defend against the Third Party Claim and
perform its obligations hereunder, (C) the Third Party Claim involves only money
damages and does not seek an injunction or other equitable relief, (D)
settlement of, or an adverse judgment with respect to, the Third Party Claim is
not, in the good faith judgment of the Indemnified Party, likely to establish a
precedential custom or practice materially adverse to the continuing business
interests of the Indemnified Party, and (E) the Indemnifying Party conducts the
defense of the Third Party Claim actively and diligently.
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(c) No Settlement without Consent of Indemnitor. So long as
the Indemnifying Party is conducting the defense of the Third Party Claim in
accordance with Section 10.4(b) above, the Indemnified Party may retain separate
co-counsel at its sole cost and expense and participate in (but not control) the
defense of the Third Party Claim. The Indemnified Party shall not consent to the
entry of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld.
(d) Rights of Indemnitee if Indemnitor Does Not Defend. In the
event any of the conditions in Section 10.4(b) above is unsatisfied, (A) the
Indemnified Party may defend against, and consent to the entry of any judgment
or enter into any settlement with respect to, the Third Party Claim in any
manner it may deem appropriate and the Indemnifying Party shall be entitled to
participate in (but not control) the defense of such action with its counsel at
its own expense, (B) the Indemnifying Party shall reimburse the Indemnified
Party promptly and periodically for the costs of defending against the Third
Party Claim (including reasonable attorneys' fees and expenses), and (C) the
Indemnifying Party shall remain responsible for any Losses (including any
amounts paid in settlement) the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the Third Party
Claim to the fullest extent provided in this Section 10.4.
10.5 Limitation. There shall be no liability for indemnification under
Sections 10.1 or 10.2 unless, and solely to the extent that, the aggregate
amount of Losses exceeds $325,000 (the "Indemnification Threshold"), provided,
however, that the Indemnification Threshold shall not apply to adjustments to
the Purchase Price pursuant to Section 2.1 and the Asset Purchase Agreements or
liability for Losses described in Section 10.2(e) or (f). Notwithstanding the
foregoing, the right of any indemnified party to indemnification under Section
10.1 or 10.2 shall be subject to the following provisions:
(a) No indemnification shall be payable to an indemnified
party with respect to any matters disclosed in any Disclosure Schedule (except
as provided in Section 10.2(f)).
(b) The aggregate amount of liability of either the Buyer
Group or the Seller Group under Section 10.1 or 10.2 shall not exceed 75% of the
Purchase Price, as adjusted pursuant to Section 2.1 or 9.3(c), and the Asset
Purchase Agreements.
(c) No indemnification shall be payable by an indemnifying
party to the extent that the claim would have been reduced by the indemnified
party properly performing its common law duty to mitigate any loss incurred by
it.
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10.6 Payment of Claims; Arbitration. All claims asserted under Section
10.1 or 10.2 of this Agreement shall be paid or otherwise satisfied by the
indemnifying party within sixty days after notice thereof is given by the
indemnified party; provided, however, that if within such 60-day period, the
indemnifying party indicates in a writing delivered to the indemnified party
that it disputes the nature or amount of the claim or that the indemnified party
is entitled to indemnification hereunder, the dispute upon the election of any
party hereto after such 60-day period shall be settled by arbitration by a
single arbitrator in New York City in accordance with the commercial arbitration
rules of the American Arbitration Association. The fees and expenses of the
arbitrator shall be borne by the indemnifying party and the indemnified party in
such proportions as shall be determined by the arbitration, or if there is no
such determination then such fees and expenses shall be borne equally by the
indemnifying party and the indemnified party. The determination of the
arbitrator as to the amount, if any, of the indemnification claim which is
properly allowable shall be conclusive and binding upon the parties hereto and
judgment may be entered thereon in any court having jurisdiction thereof.
10.7 Limitation on Remedies. It is specifically understood and agreed
that in the event a misrepresentation or breach of warranty or covenant is
discovered by Buyer or Asset Purchaser after the Closing, Buyer's remedies shall
be limited solely to the indemnification set forth in this Article 10 of this
Agreement.
11. GUARANTEES.
(a) Seller hereby guarantees to Buyer the full and faithful performance
by each Asset Seller of its obligations under the Asset Purchase Agreement to
which it is a party.
(b) Buyer hereby guarantees to Seller the full and faithful performance
by each Asset Purchaser or any permitted assignee of its obligations under the
Asset Purchase Agreement to which it is a party.
12. TERMINATION.
12.1 Termination Events. Subject to the other provisions of this
Article 12, this Agreement may, by written notice given at or prior to the
Closing in the manner hereinafter provided, be terminated and abandoned:
(a) By Buyer upon five (5) days written notice to Seller, in
the event that any of the conditions precedent to Buyer's obligations set forth
in Article 7 with respect to Seller are not satisfied at or during the
respective times therein indicated (other than by reason of the material breach
by such terminating party of any of its representations, warranties, covenants,
or agreements set forth herein) and such conditions are not either
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(i) cured by Seller within five (5) days after Buyer gives Seller such notice,
or (ii) waived by Buyer at or prior to the Closing Date.
(b) By Seller upon five (5) days written notice to Buyer, in
the event that any of the conditions precedent to Seller's obligations set forth
in Article 8 with respect to Buyer are not satisfied at or during the respective
times therein indicated (other than by reason of the material breach by such
terminating party of any of its representations, warranties, covenants, or
agreements set forth herein) and such conditions are not either (i) cured by
Buyer within five (5) days after Seller gives Buyer such notice, or (ii) waived
by Seller at or prior to the Closing Date.
(c) By either Seller or Buyer if any applicable domestic law,
rule, or regulation makes consummation of this Agreement illegal or if any
judgment, injunction, order or decree of a court or governmental agency or
authority of competent jurisdiction restrains or prohibits the consummation of
this Agreement, and such judgment, injunction, order, or decree has become final
and nonappealable;
(d) By mutual written consent of Seller and Buyer;
(e) By Seller upon five (5) days written notice to Buyer, if
pursuant to receipt of an Acquisition Proposal that involves consideration that
is economically superior to the consideration to be paid hereunder and does not
contemplate any condition relating to the obtaining of funds for such
Acquisition Proposal (as determined in each case in good faith by Seller's board
of directors after consultation with outside legal counsel), Seller's board of
directors determines to consummate a transaction based on such Acquisition
Proposal. Pursuant to exercising its termination rights under this Section
12.1(e), Seller shall pay Buyer a break-up fee of $2,250,000 in cash by wire
transfer within five (5) business days of such termination; or
(f) By either Seller or Buyer if the Closing shall not have
occurred on or prior to July 1, 1998; provided, however, that no party may
exercise its rights under this Section 12.1(f) if such party is in material
breach or default under this Agreement.
12.2 Effect of Termination. In the event this Agreement is terminated
pursuant to Section 12.1, all further obligations of the parties hereunder shall
terminate except Seller's payment obligation under Section 12.1(e) if this
Agreement is terminated pursuant to Section 12.1(e); provided, however, that if
this Agreement is so terminated by one party pursuant to Section 12.1(a) or
12.1(b) because one or more of the conditions to such party's obligations
hereunder is not satisfied as a result of the other party's failure to comply
with its obligations under any provision of this Agreement, it is expressly
agreed and understood that such party's right to pursue all legal remedies for
breach of contract or
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otherwise, including, without limitation, damages relating thereto, shall also
survive such termination unimpaired. No termination of this Agreement shall act
to terminate or otherwise impair the obligations set forth in Sections 13.4
(Expenses) and 13.12 (Specific Performance).
13. MISCELLANEOUS.
13.1 Survival of Representations and Warranties. All covenants and
obligations to be performed after the Closing Date contained in this Agreement
or in any other certificate or document delivered pursuant to this Agreement
shall survive the Closing and expire in accordance with their respective terms.
All representations and warranties contained in this Agreement or in any other
certificate or document delivered pursuant to this Agreement shall survive the
Closing for a period of eighteen (18) months. The indemnification obligation
under Section 10.2(e) shall survive the Closing for a period of six (6) months
beyond the applicable federal or state statute of limitations (including
extensions thereof). The waiver of any condition, based upon the accuracy of any
representation or warranty, or on the performance of or compliance with any
covenant or obligation, will not affect the right to indemnification,
reimbursement, or other remedy based upon such representations, warranties,
covenants or obligations.
13.2 Amendments. This Agreement may be amended only by a written
agreement signed by Seller and Buyer.
13.3 Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given (a) upon receipt if personally delivered or by overnight courier, or (b)
on the date sent if made by facsimile transmission to the party to whom such
notice or communication is directed to the facsimile number of such person
stated below and if followed by a telephone call to such person at the same time
to the telephone number stated below (or otherwise provided to or obtained by
the sending party) advising such person (or leaving a voice mail for such
person) that the facsimile transmission has been sent, to the parties at their
respective addresses set forth below.
(a) To Buyer:
District Photo Inc.
00000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, President and Chief
Executive Officer
Facsimile: 000-000-0000
Phone: 000-000-0000
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with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000
Phone: 000-000-0000
(b) To Seller:
Nashua Corporation
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxx, Vice President and General Counsel
Facsimile: 000-000-0000
Phone: 000-000-0000
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. X. Xxxxx III, Esq.
Facsimile: 617-526-5000
Phone: 000-000-0000
Such addresses or persons may be changed, from time to time, by means of a
notice given in the manner provided in this Section 13.3.
13.4 Expenses.
(a) Each of Seller, Asset Seller and Buyer will bear its own
expenses in connection with the negotiation and the consummation of this
Agreement and the Asset Purchase Agreements.
(b) Buyer and Seller shall share equally the first $200,000 of
costs incurred, whether at or subsequent to the Closing, in connection with the
transfer of the Acquired Assets to Buyer as contemplated by this Agreement or
the Asset Purchase Agreements, including without limitation, all use, excise,
sales, real property, stamp duty and other transfer taxes and charges applicable
to such transfer; all recording charges and
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fees applicable to the registration and recordation of deeds and mortgages and
other instruments of transfer; and all costs of obtaining or transferring
permits, registrations, applications and other tangible and intangible
properties, and Buyer shall pay all such costs incurred in excess of $200,000.
13.5 Waiver. Waiver of any term or condition of this Agreement by any
party shall only be effective if in writing and shall not be construed as a
waiver of any subsequent breach or failure of the same term or condition, or a
waiver of any other term or condition of this Agreement.
13.6 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.7 Entire Agreement. This Agreement, including the Exhibits and
Schedules hereto, constitutes the entire agreement, and supersedes all other
prior agreements (except that certain Confidentiality and Non-Disclosure
Agreement by and between Buyer and BT Alex. Xxxxx Incorporated on behalf of
Seller, dated December 11, 1997 as modified by letter dated February 5, 1998
from Buyer to Seller so as to make Seller's U.S. photofinishing operations
subject thereto, which documents the parties agree remain in full force and
effect) and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter thereof; provided, however, that the
identity of Buyer shall not be deemed confidential.
13.8 Assignment. This Agreement shall not be assigned by either Buyer
or Seller or by operation of law or otherwise, except with the written consent
of the other party; provided, however, that Buyer shall be permitted to assign
this Agreement and each of the Asset Purchase Agreements to an Affiliate or an
otherwise related entity without Seller's consent, but any such assignment shall
not relieve Buyer of its obligations hereunder specifically including but not
limited to its obligations under Section 11 or under any Asset Purchase
Agreement. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns.
13.9 Governing Law; Time of the Essence. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of Delaware
(excluding the conflict of laws provisions thereof). Time is of the essence in
the performance of this Agreement.
13.10 Counterparts. This Agreement may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
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13.11 Publicity. Until the business day after the Closing Date and
except for any public disclosure which Buyer or Seller in good faith believes,
upon the advice of its legal counsel, is required by law or applicable stock
exchange rules, neither party shall issue any press release regarding the
transactions contemplated hereby, without the prior written approval of the
other party, which shall not be unreasonably withheld. The parties hereto shall
issue a mutually acceptable press release as soon as practicable after the
execution of this Agreement and as soon as practicable after the Closing.
13.12 Specific Performance. Each party acknowledges and agrees that the
other party would be damaged irreparably in the event any of the provisions of
this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each party agrees that the other party
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court of any foreign
country, the United States or any state thereof having jurisdiction over the
parties and the matter, in addition to any other remedy to which it may be
entitled, at law or in equity.
13.13 Jurisdiction. In the event that any dispute should arise between
Buyer and Seller with respect to any matter covered by this Agreement (other
than disputes described in Section 10.6), the parties hereto consent to the sole
and exclusive jurisdiction of the state and federal courts of the United States
and the State of Delaware located in Dover, Delaware in connection with the
adjudication of any such dispute.
13.14 Legal Fees. In the event of any litigation between Seller and
Buyer arising out of this Agreement, the party prevailing in such litigation
shall be entitled to have its reasonable attorneys' fees and expenses reimbursed
by the other party.
13.15 Actions. The parties will execute and deliver to the other, from
time to time at or after the Closing, for no additional consideration and at no
additional cost to the requesting party, such further assignments, certificates,
instruments, records, or other documents, assurances or things as may be
reasonably necessary to give full effect to this Agreement and to allow each
party fully to enjoy and exercise the rights accorded and acquired by it under
this Agreement.
13.16 Terms. Terms used with initial capital letters will have the
meanings specified, applicable to both singular and plural forms, for all
purposes of this Agreement. The word "include" and derivatives of that word are
used in this Agreement in an illustrative sense rather than limiting sense.
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13.17 Construction. The language used in this Agreement shall be deemed
to be the language chosen by the parties hereto to express their mutual intent,
and no rule of strict construction shall be applied against either party. Any
reference to any federal, state, local or foreign statute or law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise.
[Signature Page Following]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
NASHUA CORPORATION
By: __________________________
Name:_________________________
Title:________________________
DISTRICT PHOTO INC.
By: __________________________
Name:_________________________
Title:________________________
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