Exhibit 10(e)
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INSILCO TECHNOLOGIES INC.
VENDOR
- AND -
XXXXXXX XXXXXXX
PURCHASER
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SHARE SALE AND PURCHASE AGREEMENT
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XXXXXX XXXXXX & COMPANY
SOLICITORS,
0 XXX XXXXXXXX, XXXXXX.
719.02/JTNT
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INDEX
1. Interpretation............................................................
2. Agreement for Sale and Purchase...........................................
3. Purchase Consideration....................................................
4. Completion................................................................
5. Post Completion...........................................................
6. Purchaser's Warranties and Representations................................
7. Vendor's Warranties and Representations...................................
8. Vendors Warrant Protection Provisions.....................................
9. Termination...............................................................
10. General..................................................................
Schedule 1 Vendor's Particulars.............................................
Schedule 2 Details of the Company...........................................
Schedule 3 Vendor's Warranties..............................................
Schedule 4 Purchaser's Warranties...........................................
Schedule 5 U.S. Bankruptcy Procedures.......................................
Schedule 6 Building Procedures Order........................................
Schedule 7 Copy confidentiality Agreement...................................
Signatures...................................................................
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This Agreement is dated 16th December 2002 and made BETWEEN:
1. The person whose name and address is set out in column 1 of Schedule 1 (the
"Vendor").
2. Xxxxxxx Xxxxxxx of 0 Xxxxxxxxxxx Xxxxx, Xxxxxxxxxxxxx, Xx. Xxxxxx, Northern
Ireland.("the Purchaser").
RECITALS:
A. The issued share capital of the Company is beneficially owned by the
Vendor as set out in column 2 of Schedule 1.
B. The Vendor is preparing to file Chapter 11 bankruptcy petitions
pursuant to Title II of the United States Code, 11 U.S.C.ss.101. et
seq; and
C. The Vendor as beneficial owner has agreed to sell and the Purchaser has
agreed to purchase the entire issued share capital of the Company on
the terms and subject to the conditions set out in this Agreement.
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1. INTERPRETATION
(a) In this Agreement, including the Schedules other than Schedule 4:-
(i) the following words and expressions have the following meanings,
unless they are inconsistent with the context:-
"Accounts" The profit and loss account for the
period ended 30 November 2002 and the
Balance Sheet of the Company as at 30
November 2002.
"Accounts Date" 30 November 2002 (being the date to
which the Accounts have been prepared).
"Affiliate" With respect to the Vendor means any
Company or Person, that directly, or
indirectly, through one or more
intermediaries, controls, is controlled
by, or is under common control with the
Vendor, and without prejudice to the
generality of the foregoing includes its
holding Companies, its subsidiaries
and/or Companies within the same Group
of Companies.
"Agreed Form" the form agreed between the parties on
or prior to the date of this Agreement
and initialled for the purpose of
identification by their respective
solicitors.
"Agreement" this Agreement.
"Bankruptcy Code" means Title 11 of the United States
Code, 11 U.S.C.ss.ss.101, et seq.
"Bankruptcy Court" means the United States Bankruptcy Court
for the Southern District of New York or
such other court having competent
jurisdiction over the Chapter 11 Cases.
"Bidding Procedures means an order substantially in the form
Order" of Schedule 6 to this Agreement entered
by the Bankruptcy Court approving
procedures for submitting competing
offers for the Shares.
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"Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure.
"Board" the board of Directors of the Company.
"Business" means the Company's business and
activities as conducted on the date
hereof at its facility in Galway,
Ireland, which includes the design,
manufacturing and distribution of custom
cable assemblies to a variety of
customers, including original equipment
manufacturers and electronic
manufacturing service providers.
"Business Day" a day which is not a Saturday or Sunday
on which banks in Dublin are open for
business.
"CA" Companies Acts, 1963 to 2001 and all
orders and regulations made thereunder
or made under the European Communities
Act, 1972 and intended to be construed
as one with The Companies Acts 1963 to
2001.
"Chapter 11 Cases" means the case filed by the Vendor
and/or any of its Affiliates commenced
under Chapter 11 of the Bankruptcy Code.
"Company" Insilco Teoranta (registered no.
286584).
"Completion" Completion of the purchase of the Shares
in accordance with Clause 4.
"Confidentiality means the agreement between the parties
Agreement" hereto a copy of which is annexed hereto
as Schedule 7 of this Agreement.
"Connected Person" is a person connected with a director of
the Company for the purposes of Section
26 of the Companies Act, 1990.
"Directors" the several persons whose names and
addresses are set out in Part 1 Schedule
2 as the Directors of the Company.
"Disclosure Letter" the disclosure letter (if any) and its
annexes of the same date as this
Agreement from the Vendor to the
Purchaser.
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"Dollar" and the The currency of the United States of
sign "$" America.
"Encumbrance" (i) any adverse claim or right or
third party right or other right
or interest;
(ii) any equity;
(iii) any option or right of
pre-emption or right to acquire
or right to restrict;
(iv) any mortgage, charge, assignment
hypothecation, pledge, lien, or
security interest or arrangement
of whatsoever nature;
(v) any reservation of title;
(vi) any hire purchase, lease or
instalment purchase agreement.
"Euro" and the sign E The Currency of Ireland.
"Governmental Authority" Means any federal, provincial,
municipal, state, local or foreign
governmental, administrative or
regulatory authority, department,
agency, commission or body. "Ireland"
Ireland excluding Northern Ireland.
"ITA" the Income Tax Act, 1967.
"Intellectual Property" Means any and all patents, registered
trademarks or service marks, registered
designs, applications for any of the
foregoing, trade and business names,
unregistered trademarks or service
marks, logos, know-how, trade secrets,
copyrights, rights in designs,
inventions, rights under licences and
consents in relation to any such rights,
and rights of the same or similar effect
or nature, together with all goodwill
attaching or relating thereto, in any
part of the world (whether or not
capable of protection by patent or
registration).
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"Material Adverse means any change or changes in, or
Effect" effect on, the Business that
individually is, or in the aggregate
are, reasonably likely to be materially
adverse to the financial condition of
the Business, taken as a whole.
"Planning Acts" The Planning and Development Xxx 0000
and the Building Control Act, 1990.
"Properties" The properties of the Company
"Purchase The total purchase consideration
Consideration" specified in clause 3 hereof.
"Purchaser's The total purchase consideration
Consideration" specified in Clause 3 hereof.
"Purchaser's The warranties and representations
Warranties" contained in Clause 6 and Schedule 4.
"SEC" Means the United States Securities and
Exchange Commission.
"Shares" The entire issued share capital of the
Company set out in column 2 of Schedule
1.
"Subsidiary" A subsidiary as defined in CA.
"Taxation" Means all forms of taxation, duties,
imposts, levies, withholding, rates and
charges of whatsoever nature whether of
Ireland or elsewhere in any part of the
world wherever or whenever created or
imposed including, without prejudice to
the generality of the foregoing, income
tax, corporation tax, advance
corporation tax, capital gains tax,
capital acquisitions tax, inheritance
tax, deposit interest retention tax,
value added tax, sales tax, customs and
other import and export duties, excise
duties, stamp duty, capital duty,
property tax, rates, pay-related social
insurance or other similar contributions
and generally all taxes, duties,
imposts, withholdings, levies, rates and
charges whatsoever on or in
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relation to income, profits, gains,
sales, receipts, use or occupation and
any taxes, duties, imposts withholdings,
levies, rates and charges supplementing
or replacing any of the foregoing and
any interest, charges, surcharges,
fines, penalties, costs and expenses in
connection with any of the foregoing.
"US Bankruptcy Means the procedures set out at Schedule
Procedures" 5.
"TCA" The Taxes Consolidation Act, 1997.
"VAT Act" The Value Added Tax Act, 1972.
"Vendor's Solicitor" XxXxxx XxxxXxxxxx, 2 Habourmaster Place,
I.F.S.C. Xxxxxx 0.
"Vendor's Warranties" The warranties and representations
contained in clause 7 and Schedule 3.
"Warranty Claim" Any claim made by the Purchaser for
breach of any of the Warranties
(ii) All references to a statutory provision shall be construed as
including references to:
A. any statutory modification, consolidation or re-enactment
(whether before or after the date of this Agreement) for the
time being in force;
B. all statutory instruments, regulations or orders from time to
time made pursuant thereto;
C. any statutory provisions of which a statutory provision is a
modification, consolidation or re-enactment.
(iii) Any reference to a person shall be construed as a reference to any
individual, firm, company, corporation, government, state or agency
of a state, or any association or partnership (whether or not
having separate legal personality) of two or more of the foregoing.
(iv) Any reference to the Vendor includes, where appropriate, his
personal representatives.
(v) Any reference to a statutory provision shall be construed as a
reference to the laws of Ireland unless the context otherwise
indicates.
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(vi) Except where the context otherwise requires words denoting the
singular include the plural and vice versa; words denoting any one
gender include all genders.
(vii) Unless the context otherwise requires, reference to a clause or
sub-clause, paragraph, sub-paragraph, recital, or a Schedule is a
reference to a clause or a sub-clause, paragraph, sub-paragraph,
recital of or a Schedule as the case maybe of or to this Agreement
and the expressions "this Agreement" and "the Agreement" as used in
any of the Schedules shall mean this Agreement and any references
to "this Agreement" shall be deemed to include the Schedules to
this Agreement.
(viii) Any statement, representation or warranty which is qualified by the
expression "to the best of the knowledge, information and belief of
the(Purchaser or Vendor as the case may be)............" or "so far
as the (Purchaser or Vendor as the case may be) is aware" or any
similar expression shall be deemed to include a warranty given by
the party making such statement, representation or giving such
warranty that such statement, representation or warranty has been
made after due and careful enquiry.
(ix) Words and phrases the definitions of which are contained or
referred to in Section 2 of the Companies Act, 1963 shall be
construed as having the meaning thereby attributed to them.
(b) Where any party to this Agreement is more than one person:-
(i) the Warranties, agreements and obligations contained in this
Agreement on the part of such parties shall be construed and take
effect as joint and several Warranties, agreements and obligations
and the act or default of any one of them shall be deemed to be the
act or default of each of them.
(ii) reference to that party shall refer to each of those persons or any
of them as the case may be;
(iii) the benefits contained in this Agreement in favour of such party
shall be construed and take effect as conferred in favour of all
such persons collectively and each of them separately.
(c) Headings in this Agreement are for convenience of reference only and do not
affect the construction or interpretation of any provision.
(d) This Agreement shall in all respects be governed by and construed in
accordance with the laws of Ireland.
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2. AGREEMENT FOR SALE AND PURCHASE
(a) Subject to the terms and conditions of this Agreement, the Vendor as
beneficial owner shall sell and the Purchaser in reliance upon, inter alia,
the Warranties, shall purchase the Shares free from all Encumbrances and
with the benefit of all rights attaching to them.
(b) The Purchaser shall not be obliged to complete the purchase of any of
the Shares unless the purchase of all the Shares is completed
simultaneously in accordance with the provisions of this Agreement.
(c) The Vendor hereby waives any pre-emption rights he may have in relation
to any of the Shares under the Articles of Association of the Company or
otherwise.
(d) The parties hereto acknowledge that this Agreement is subject to U.S.
Bankruptcy procedures.
(e) This Agreement is subject to the following preconditions:
(i) The issue of an effective Sale Order by the Bankruptcy Court and
neither of the parties hereto shall be obliged to complete the
purchase of any of the Shares until all necessary consents and
orders under the Bankruptcy Code (including, without prejudice to
the generality of the foregoing, the Sale Order) allowing the
sale to proceed and this agreement to be completed have issued.
(ii) Consent of Udaras na Gaeltachta to the proposed acquisition by
the Purchaser of the Shares upon the terms contained herein and
further confirmation from it that it does not propose to cancel,
revoke, rebate or claw back any grant to the Company or terminate
any Lease with the Company as a result of the acquisition by the
Purchaser of the Shares and a release from Udaras na Gaeltachta
releasing the Vendor from all its obligations under the Grant
Agreement made between Udaras na Gaeltachta, the Vendor and the
Company on 15th day of January 1999 and further an express waiver
and release from Udaras na Gaeltachta, satisfactory to the
Purchaser, of all liabilities owing by the Company, howsoever
arising (including all contingent liabilities but excluding any
liabilities arising under any lease of the Properties) to Udaras
na Gaeltachta.
(iii) There being no Material Adverse Effect in or on the Company or
the Business or the assets of the Company.
3. PURCHASE CONSIDERATION
(a) The Purchase Consideration for the Shares shall be the sum of $100,000
The Vendor hereby authorises the Purchaser to pay the Purchase
Consideration to the Vendor's Solicitors whose receipt shall be
sufficient evidence of payment and shall operate as a good discharge to
the Purchaser who shall not be concerned as to the distribution of the
Purchase Consideration to the Vendor.
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(b) The Purchase Consideration paid by the Purchaser for the purchase of
the Shares pursuant to Clause 3.1 hereof shall be deemed to be reduced
by the amount, if any, paid pursuant to a Warranty Claim.
4. COMPLETION
(a) Completion of the sale and purchase of Shares shall take place at the
offices of the Purchaser's Solicitors. The Completion (the "Closing")
shall take place no later than the fifth Business Day following the
date on which the Sale Order shall issue from the Bankruptcy Court but
in any event no later than the date set out at Clause 9.1 (e) hereof.
(The date of the Closing is hereafter called "the Closing Date").
At Closing:-
(i) the Vendor shall deliver to the Purchaser and/or its nominees:-
A. duly executed share transfers in respect of the Shares and
surrender the relevant share certificates in relation to the
Company (or in the case of any share certificates found to be
missing, an express indemnity, in a form satisfactory to the
Purchaser);
B. such waivers or consents as are required to enable the
Purchaser and/or its nominees to be registered as the holders
of the Shares;
C. in relation to the Company the statutory books, records and
registers (duly written up-to-date), the common seal, the
certificate of incorporation (including any certificates of
change of name), the title deeds to the Properties and all
documents, contracts, licenses, agreements, insurance
policies, records, papers, correspondence, files and books of
trading and account;
D. a letter from any third party who provided financial
facilities to the Company granting all such consents,
clearances or releases which may be necessary in relation to
the transactions contemplated herein;
E. all such other consents, approvals, clearances or licences of
governmental, regulatory or other agencies or persons in
connection with the sale and purchase of the Shares as are
necessary to complete this transaction;
F. all credit cards in the name of or for the account of the
Company in the possession of any officer or employee of the
Company resigning as at the date of Completion;
G. letters of resignation under seal from the Directors (save
the Purchaser)
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of the Company resigning with effect from termination of the
meeting of the Board referred to at clause 4(a)(ii) hereof
from their directorships in the Company and further (save in
the case of the Purchaser and Xxxxxx XxXxxx) from offices of
profit under an employment with the Company, containing an
acknowledgement that each has no claim against the Company in
respect of breach of contract, compensation for loss of
office or otherwise howsoever arising;
H. a letter of resignation under seal from the secretary of the
Company containing an acknowledgement that he has no claim
against the Company in respect of breach of contract, or
otherwise howsoever arising;
I. the written resignation of the auditors of the Company
containing confirmation in accordance with the provisions of
Section 185(2) (a) of the Companies Act, 1990 that there are
no circumstances connected with their resignation which ought
to be brought to the attention of the members or creditors of
the Company and incorporating an acknowledgement that they
will have no claim against any of the Company in respect of
compensation for loss of office or on any account whatsoever
including fees for services rendered.
J. the original of any power of attorney under which any
document required to be delivered to the Purchaser under this
clause has been executed;
K. Official certified copies of all Orders consents or
permissions as issued by the Bankruptcy Court and necessary
so as to allow the transaction contemplated by this Agreement
and completion thereof to validly proceed in accordance with
the Bankruptcy Code.
L. A sworn Declaration or certificate from a reputable counsel,
properly qualified as such to practice inter alia, within the
jurisdiction of the Bankruptcy Court certifying and
confirming, for the benefit of the Purchaser and
acknowledging that the Purchaser may rely upon the contents
thereof, that all necessary procedures required under the
Bankruptcy Code and Chapter 11 bankruptcy petitions pursuant
to Title 11 of the United States Code 11 USCss.101 ET SEQ
have been fully and properly complied with by the Vendor and
that all necessary consents orders and other documents have
been obtained so as to validly allow the parties hereto to
complete the transaction intended by this Agreement in
accordance with the terms thereof, which said declaration or
certificate shall exhibit certified copies of the aforesaid
consents or orders and which shall be sworn before a Notary
Public.
M. Evidence reasonably satisfactory to the Purchaser of
compliance with the preconditions to this Agreement set forth
at Clause 2 (e) hereof as applicable.
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(ii) The Vendor shall procure:
A. the discharge of all monies owing to the Company (whether
then due for payment or not) by the Vendor or the directors
of the Company or by any of them or by any Connected Person;
B. that a meeting of the Board is held at which, inter alia:-
I. the share transfers referred to in clause 4(a)(i)A are
approved (subject only to stamping);
II. such persons as the Purchaser may nominate are appointed
as directors, secretary, auditors and solicitors of the
Company with immediate effect;
III. all existing mandates for the operation of bank accounts
of the Company are revoked and new mandates are issued
giving authority to such persons as the Purchaser may
nominate;
IV. the resignations referred to in clause 4(a)(i)(H) and(I)
are accepted;
V. the resignation of the auditors of the Company is
accepted;
(iii) The Vendor shall:
A. assign and/or deliver to the Company any asset whatever
(including bank balances, agencies or appointments) in its
name or in the name of a company or companies controlled by
him which asset is solely related to the business of the
Company carried on at Completion;
B. irrevocably waive any claims against the Company its agent,
or employees which he may have outstanding at Completion.
(iv) The Purchaser shall subject to the compliance by the Vendor with
all of his obligations under clause 4(a)(i), 4(a)(ii) and
4(a)(iii) pay the Purchase Consideration by way of bank draft to
the Vendor's Solicitors in accordance with clause 3;
5. POST COMPLETION
The Purchaser shall complete the stamping of the share transfers referred
to in clause 4(a)(i)A. as soon as practicable. Prior to such stamping being
completed, the Vendor shall co-operate in any manner reasonably required by
the Purchaser for the convening of any general meetings required by the
Purchaser, including the completion of proxy forms on a
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timely basis and generally shall act in all respects as the nominee of and
in accordance with the reasonable directions of the Purchaser;
6. PURCHASER'S WARRANTIES
As an inducement to the Vendor to enter this Agreement and to complete the
transactions contemplated hereby, the Purchaser represents and warranties
to the Vendor in terms set forth in Schedule 4 hereof.
7. VENDOR'S WARRANTIES
(a) In consideration of and as an inducement to the Purchaser entering into
this Agreement the Vendor warrants and represents to the Purchaser,
subject to this clause 7 that:-
(i) the Vendor has and will have full power and authority (subject to
entry and effectiveness of the Sale Order)to enter into and
perform this Agreement which constitute or when executed will
(subject to the entry and effectiveness of the Sale Order)
constitute binding obligations on him in accordance with their
respective terms;
(ii) the Shares constitute the whole of the allotted and issued share
capital of the Company and are fully paid;
(iii) on completion there shall be no Encumbrance on, over or affecting
the Shares and there shall be no agreement or arrangement to give
or create any Encumbrance and no claim will be in existence at
that time made by any person to be entitled to any of the
foregoing.
(iv) the Vendor is entitled to transfer the full legal and beneficial
ownership of the Shares to the Purchaser on the terms of this
Agreement without the consent of any third party save and except
to the extent excused by or unenforceable as a result of the
filing of the Chapter 11 Cases or the applicability of any
provision or applicable law of the Bankruptcy Code, and except for
the entry and effectiveness of the Sale Order, neither the
execution and delivery of this Agreement by the Vendor nor the
sale of the Shares pursuant to this Agreement will require any
consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority which has not
otherwise been obtained or made, except where the failure to
obtain such consent, approval, authorization or permit, or to make
such filing or notification, would not have a Material Adverse
Effect or prevent or materially delay the consummation of the
transactions contemplated by this Agreement.
(v) the information in Schedule 2 relating to the Company is true and
accurate in all respects;
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(vi) save as fully and fairly disclosed in the Disclosure Letter (if
any), the Warranties are true and accurate in all respects;
(vii) the contents of the Disclosure Letter (if any) are true and
accurate in all respects and fully and fairly disclose every
matter to which they relate.
(b) Each of the Warranties is separate and independent and without
prejudice to any other Warranty and, except where expressly stated
otherwise, no clause of this Agreement shall govern or limit the extent
or application of any other clause.
(c) The rights and remedies of the Purchaser in respect of any breach of
the Warranties shall not be affected or extinguished by Completion, by
any investigation made by it or on its behalf into the affairs of the
Company, by its rescinding or failing to rescind this Agreement, or
failing to exercise or delaying the exercise of any right or remedy, or
by any other event or matter, except a specific and duly authorised
written waiver or release, and no single or partial exercise of any
right or remedy shall preclude any further or other exercise.
(d) The Vendor hereby acknowledges that the rights and remedies of the
Purchaser in respect of any breach of the Warranties shall, should the
Purchaser so require and at its sole discretion, be enforceable against
the Vendor within the United States of America and that the Courts of
the United States of America shall have jurisdiction in relation
thereto.
(e) None of the information supplied by the Company or its professional
advisers to the Vendor or his agents, representatives or advisers in
connection with the Warranties and the contents of the Disclosure
Letter, or otherwise in relation to the business or affairs of the
Company, shall be deemed a representation, warranty or guarantee of its
accuracy by the Company to the Vendor and the Vendor waives any claims
against the Company (and its employees and agents) which he might
otherwise have in respect of it.
(f) The Purchaser acknowledges that it has not been induced to enter into
this Agreement by any representation or warranty other than the
Warranties.
8 VENDOR'S WARRANTY PROTECTION PROVISIONS
(a) The liability of the Vendor in relation to the Warranties and the Deed
of Indemnity shall cease on the expiration of a period of three years
from completion in relation to claims other than for Taxation and on
the expiration of a period of six years from completion in relation to
claims for Taxation or under the Deed of Indemnity, save as regards an
alleged specific breach of which notice in writing (containing details
of the event or circumstance giving rise to the breach, the basis upon
which the Purchaser is making a claim against the Vendor and an
estimate (where available) of the amount of liability which may result)
has been given to the Vendor prior to the relevant date. (But there
will be no time limit in so far as any claim relates to any statutory
or criminal fine or penalty)
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(b) The total liability of the Vendor under the Warranties shall not in any
event exceed $100,000 save in respect of warranty 1 Schedule 3 hereof
in respect of which the total liability shall be E2,000,000. The
provisions of this Section 8 shall not limit the liability of the
Vendor for any Warranty Claim relating to:-
(i) the Vendor's title to, or the status or validity of the Shares; or
(ii) any claim which arises or is delayed as a result of dishonesty,
fraud, wilful misconduct or wilful concealment by the Vendor.
(c) There shall not be any liability for any Warranty Claim unless the
aggregate liability (or what would be the aggregate liability apart
from this paragraph 8(c)) exceeds E5,000
9. TERMINATION
1. This Agreement may be terminated at any time prior to the Closing Date by:
(a) Mutual Consent of the Vendor and the Purchaser.
(b) The Vendor , if there has been a material violation or breach by the
Purchaser of any covenant, representation or warranty made by it
contained in this Agreement which has prevented the satisfaction of any
condition to the obligations of the Vendor or the Company to effect the
Closing and such violation or breach has not been cured by the
Purchaser within ten (10) Business Days of receipt of written notice
thereof or waived by the Vendor;
(c) the Vendor or the Purchaser, if (i) there shall be any law or
regulation that makes completion of the transactions contemplated
hereby illegal or otherwise prohibited or (ii) completion of the
transactions contemplated hereby would violate any nonappealable final
order, decree or judgment of (A) the Bankruptcy Court or (B) any court
or governmental body having competent jurisdiction;
(d) the Vendor, if the Bankruptcy Court enters an order approving a sale of
the Shares other than the sale thereof contemplated by this Agreement
to the Purchaser (a "Third-Party Sale");
(e) The Purchaser or the Vendor, if the Closing shall not have occurred on
or prior to March 31, 2003 (the "Termination Date"); Provided, that the
Purchaser or the Vendor, as the case may be, shall not be entitled to
terminate this Agreement pursuant to this Clause if the failure of the
Closing to occur on or prior to such date results primarily from such
party itself breaching any representation, warranty or covenant
contained in this Agreement; (f) The Purchaser, if there has been a
material violation or breach or failure of performance by the Vendor of
any precondition, covenant, representation or warranty made by it
contained in this Agreement or any event or thing having a Material
Adverse Effect on the Company or the Business or the assets of the
Company between the date hereof and the Closing Date and such has not
been cured by the
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Vendor within ten (10) Business Days of receipt of written notice
thereof or waived by the Purchaser.
(f) The Purchaser, if there has been any Material Adverse Effect to the
Company or to its assets or to the Business. (g) The Purchaser on the
occurrence of the events set forth at Clause 10 (e) of this Agreement.
2. In the event of termination of this Agreement and abandonment of the
transactions contemplated hereby by either or both of the parties pursuant to
Clause 9.1, written notice thereof shall forthwith be given by the
terminating party to the other party and this Agreement shall terminate and
the transactions contemplated hereby shall be abandoned, without further
action by any of the parties hereto. If this Agreement is terminated as
provided herein:
(a) except as set forth in sub-paragraphs 10 (d) and/or 10 (0) said
termination shall be the sole remedy of the parties hereto with respect
to breaches of any covenant, representation or warranty contained in
this Agreement and none of the parties hereto nor any of their
respective trustees, directors, officers or Affiliates, as the case may
be, shall have any liability or further obligation to the other party
or parties or any of their respective trustees, directors, officers or
Affiliates, as the case may be, pursuant to this Agreement, except for
the parties hereto in each case as stated in this Clause 9.2, or as
otherwise provided for in this Agreement and upon a willful breach by a
party, in which case the non-breaching party or parties shall have all
rights and remedies existing at law or in equity; for the avoidance of
doubt the Purchaser acknowledges that a failure on its part to close
this transaction due to lack of sufficient funds or financing shall be
considered a willful breach;
(b) all filings, applications and other submissions made pursuant to this
Agreement, to the extent practicable, shall be withdrawn from the
agency or other Person to which they were made; and
(c) all Confidential Information from the Vendor and/or the Company shall
be returned to the Vendor and/or the Company, and all Confidential
Information from the Purchaser shall be returned to the Purchaser
3. At any time prior to the Closing, the Vendor , on the one hand, or the
Purchaser, on the other hand, may (i) extend the time for the performance of
any of the obligations or acts of the other party, (ii) waive any
inaccuracies in the representations and warranties of the other party
contained herein or in any document delivered pursuant hereto, (iii) waive
compliance with any of the agreements of the other party contained herein or
(iv) waive any condition to its obligations hereunder. Any agreement on the
part of the Vendor, on the one hand, or the Purchaser, on the other hand, to
any such extension or waiver shall be valid only if set forth in a written
instrument signed on behalf of the Vendor or the Purchaser, as applicable.
18
10. GENERAL
(a) No announcement shall be made in respect of the subject matter of this
Agreement unless specifically agreed between the parties or it is an
announcement required by law issued after prior consultation between
the parties.
(b) This Agreement shall inure to the benefit of and be binding upon each
party's successors and permitted assigns and personal representatives
(as the case may be) but, except as expressly provided, none of the
rights of the parties under this Agreement including the Vendor's
Warranties may be assigned or transferred.
(c) Except as otherwise provided herein, all expenses incurred by or on
behalf of the parties, including all fees of agents, representatives,
solicitors, accountants and actuaries employed by any of them in
connection with the negotiation, preparation or execution of this
Agreement, shall be borne solely by the party who incurred the
liability and the Company shall have no liability in respect of them.
(d) Any notice or other communication whether required or permitted to be
given hereunder shall be given in writing and shall be deemed to have
been duly given if delivered by hand to the addressee or if sent by
pre-paid post addressed to the party to whom such notice is to be given
at the address set out for such party herein (or such other address as
he or it may from time to time designate to all other parties hereto in
accordance with the provisions of this clause 10(e)) and any such
notice or other communication shall be deemed to have been duly given
if delivered by hand at the time of delivery and if sent by post as
aforesaid forty eight hours after the same shall have been posted.
(e) Any liability to any party under the provisions of this Agreement may
in whole or in part be released, varied, compounded or compromised by
such party in its absolute discretion as regards any party under such
liability without in any way prejudicing or affecting its rights
against any other party under the same or a like liability whether
joint and several or otherwise. A waiver by any party of any breach of
the terms, provisions or conditions of this Agreement or the
acquiescence of a party hereto in any act (whether of commission or
omission) which but for such acquiescence would be a breach of
aforesaid shall not constitute a general waiver of such term, provision
or contribution or of any subsequent act contrary thereto.
(f) This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which when
executed and delivered shall constitute an original, all such
counterparts together constituting but one and the same instrument.
(g) This Agreement and the Disclosure Letter shall supersede, cancel and
replace any and all previous agreements made between any of the parties
hereto relative to its subject matter.
(h) At the request of the Purchaser the Vendor shall (and shall procure
that any other necessary parties shall) execute and do all such
documented acts and things as may reasonably be required subsequent to
Completion by the Purchaser in order to perfect the
19
right, title and interest of the Purchaser to and in the Shares and to
procure the registration of the Purchaser or his nominee as the
registered holder of the Shares.
(i) The Vendor and the Purchaser shall each use all reasonable efforts to
co-operate with each other in determining any filings, notifications
and requests for approval required to be made and received prior to the
Closing under applicable law or regulation provided that and it is
hereby agreed between the parties, the Purchaser shall not be required
to take any such steps in the United States of America if to do so
would involve it incurring any material financial liability or having
to engage counsel or other representatives and further in dealing with
any issues that arise pursuant to proceedings before the Bankruptcy
Court or out of the Bankruptcy Code or pursuant to Chapter 11, whereas
the Purchaser shall so co-operate the Purchaser shall not be required
to do anything which would require him incurring any such expenditure
or the engaging of any professional assistance as hereinbefore referred
to.
(j) Each party hereto will provide each other with such assistance,
co-operation and information (including access to books and records) as
either of them reasonably may request of any other (and after the
Closing the Purchaser shall cause the Company to provide such
assistance, co-operation and information) in filing any Tax Return,
amended Tax Return or claim for refund, determining any liability for
Taxes or a right to a refund of Taxes or participating in or conducting
any audit or other proceeding in respect of Taxes relating to the
Vendor or the Company.
(k) All taxation (collectively, "Transfer Taxes") incurred in connection
with the transaction contemplated by this Agreement shall be paid by
the Purchaser but only in so far as they arise within Ireland and
excepting therefrom any taxation liabilities in relation to this
transaction properly the liability of the Vendor (including, without
prejudice to the generality of the foregoing Capital Gains Tax). In the
event that any such Taxes would be incurred outside of Ireland and
would, if this agreement proceeded be the liability of the Purchaser,
then the Purchaser shall in such event be entitled at his sole option
not to proceed and to terminate this Agreement. The Vendor shall take
all necessary steps to try and ensure that the transactions
contemplated herein shall be exempt from Transfer or other Taxes
outside of Ireland.
(l) The Vendor shall obtain all necessary Government consents certification
approvals as are necessary and required in any jurisdiction outside of
Ireland for the purpose of ensuring that the transactions contemplated
herein shall proceed in accordance with this Agreement.
The Vendor shall keep the Purchaser advised in relation to all
proceedings before the Bankruptcy Court and pursuant to the Bankruptcy
Code and shall not take any action to prolong the procedures set out in
Schedule 5 hereto.
(m) If following bidding and/or Auction procedures the Purchaser is not
identified as the successful bidder and consequently this agreement
does not proceed to completion the Purchaser shall be entitled to
receive as a "break-up fee" out of the proceeds of sale an
20
amount equal to the sum of $10,000 and reimbursement of all reasonable
and documented out-of-pocket expenses up to $25,000 "the Topping Fee"
in the aggregate which payment shall be made to an account designated
by the Purchaser on the third business day after completion of the sale
to such other party. The claim of the Purchaser in respect of this
matter shall constitute a first priority administrative expense under
Section 507 (a) of the Bankruptcy Code.
(n) The Purchaser shall be permitted to credit the amount of the Topping
Fee referred to its bid if it makes competing bid at the Auction in
such a manner that the Purchaser shall be permitted to match the Dollar
value of any competing bid submitted by another entity by submitting a
bid in an amount equal to, not no more than, the bid to be matched
minus the amount of the Topping Fee.
(o) Save in relation to the Sale Order and all matters arising out of same
and save as provided for at Clause 7 (d) hereof the parties hereto
hereby agree for the benefit of the other that the Courts of Ireland
shall have jurisdiction to hear and determine any suit, action or
proceedings that may arise out of or in connection with this Agreement
and for such purposes irrevocably submits to the jurisdiction of such
courts.
(p) The Vendor hereby irrevocably authorises and appoints XxXxxx
XxxxXxxxxx, Solicitors, 2 Habourmaster Place, International Financial
Services Centre, Dublin 1 (or such other firm of solicitors resident in
Ireland as they may by notice to the Purchaser and the Company
substitute) to accept service of all legal process arising out of or in
connection with this Agreement and service on Messrs XxXxxx XxxxXxxxxx,
Solicitors (or such substitute as aforesaid) shall be deemed service on
all parties. The Vendor agrees that failure by its process agent to
notify it of the process will not invalidate the proceedings
concerned].
(q) the parties hereto hereby waive to the fullest extent permitted by
applicable law any right they may have to a trial by jury with respect
to any litigation directly or indirectly arising out of, under or in
connection with this Agreement or the transactions contemplated by this
Agreement. the parties hereto (a) certify that no representative, agent
or attorney of any other parties has represented, expressly or
otherwise, that such other party would not, in the event of litigation,
seek to enforce that foregoing waiver and (b) acknowledges that they
and the other party hereto have been induced to enter into this
Agreement and the transactions contemplated by this Agreement, as
applicable, by, among other things, the mutual waivers and
certifications in this Clause.
IN WITNESS WHEREOF this Agreement has been duly executed on the date shown at
the beginning of this Agreement.
SCHEDULE 1
VENDOR'S PARTICULARS
NUMBER OF PROPORTION OF PURCHASE
VENDOR'S NAME AND ADDRESS SHARES HELD CONSIDERATION
Insilco Technologies Inc. 100 Ordinary Shares Entire purchase consideration
a Delaware corporation
having its registered office
at 000 Xxxxx Xxxxx Xxxxx,
Xxxxx 000, Xxxxxx, Xxxx 00000
Xxxxxx Xxxxxx of America.
21
SCHEDULE 2
DETAILS OF THE COMPANY
PART 1:
Company registration number: 286584
Date of incorporation: 21st May 1998
Share capital
authorised: E1,269,738
issued: 100 Ordinary Shares
Registered office: Xxxxxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, Xx. Xxxxxx, Xxxxxxx
Directors: Name Address
Xxxxx Xxxxx 0000 Xxxx Xxxxx,
Xxxxxx, Xxxx 00000, X.X.X.
Xxxxxxx Xxxxxxx 0 Xxxxxxxxxxx Xxxxx,
Xxxxxxxxxxxxx, Xx. Xxxxxx, BT 00 0
XX, Xxxxxxxx Xxxxxxx.
Xxxxxx XxXxxx 0 Xxx xx Xxxx Xxxxx, Xxxxxxx,
Xxxxxx, Xxxxxxx.
Secretary:
Xxxxxx XxXxxx 0 Xxx xx Xxxx Xxxxx, Xxxxxxx,
Xxxxxx ,Xxxxxxx.
Name and address of
registered shareholders:.......... Insilco Technologies Inc.
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxx 00000, X.X.X.
Name and Address of
beneficial owners of shares:...... Insilco Technologies Inc.
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxx 00000, X.X.X.
22
SCHEDULE 3
VENDOR'S WARRANTIES
1. SHARE CAPITAL
(a) No person has the right (whether actual or contingent) to call for the
issue of any share or loan capital of the Company under any option or
other agreement, arrangement or commitment (including without
limitation conversion rights and rights on realisation of security)
and no person has claimed to be entitled to any of the foregoing.
(b) The Company is not or has not agreed to become a holder of any class
of share or other capital of any company and the Company is not and
has not agreed to become a member of any joint venture, partnership or
consortium and is not and has not agreed to be a party to any profit
sharing arrangement.
2. TRANSACTIONS SINCE THE ACCOUNTS DATE
Since the Accounts Date no distribution of capital or income has been
declared made or paid in respect of any share capital of the Company and
(excluding fluctuations in overdrawn current accounts with bankers) no
loan or loan capital of the Company has been repaid in whole or in part
or has become liable to be repaid save that the Vendor shall be entitled
to distribution/repayment of the sum of $360,000 subsequent to execution
of this Agreement but prior to the Closing Date. (Which payment shall be
subject to the approval of the Bankruptcy Court (if necessary) and in
such event it shall be the obligation of the Vendor to obtain such
approval).
3. INTERESTED PARTIES
(a) Save for an accrual of $360,000 to be paid to the Company prior to
completion no indebtedness or liability (whether actual or contingent
and whether or not quantified or disputed) and no contract, commitment
or arrangement is outstanding between the Company and the Vendor or
any Connected Person.
(b) Neither the Vendor nor any Connected Person is entitled to any claim
of whatsoever nature against the Company and neither the Vendor nor
any Connected Person has assigned to any person the benefit of any
such claim to which he would otherwise have been entitled.
4. LITIGATION
The Company is not engaged in any litigation or arbitration proceedings or
any dispute and has not been served with any notice making it a party to
any litigation, arbitration, prosecution or other legal proceedings within
23
the Jurisdiction of the United States of America except with respect to
actions commenced in Chapter 11 Cases and there are no facts known to the
Vendors which might give rise to any such proceedings or to any dispute.
5. AGREEMENTS AND ARRANGEMENTS
There are in force no powers of attorney given by the Company and no
person, as agent or otherwise, is entitled or authorised to bind or commit
the Company to any obligation not in the ordinary course of the Company's
business.
6. TAXATION
The Company is resident in Ireland for the purposes of Taxation and has not
been at any time resident in any jurisdiction other than Ireland for
Taxation purposes nor has it been at any time managed or controlled in or
from any country other than Ireland and the Company has not at any time
carried on any trade in any other country and the Company does not have any
permanent establishment outside Ireland.
7. GRMS
The Purchaser for the benefit of the Company and the Company shall be
entitled to access to and user of the Vendor's GRMS computer system for a
period of 90 days from the date of completion.
8. TRADING NAME
The Company shall be allowed continue trading under its existing trade name
namely Insilco Teoranta for a period of not less than six months from the
date of completion.
9. DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES
Except as expressly set forth in this agreement the Vendor makes no
representation or warranty, express or implied, at law or in equity, in
respect of the shares or any of the assets, liabilities or operations, of
the Company including, without prejudice to the generality of the
foregoing, with respect to merchantability or fitness for any particular
purpose, and any such other representations or warranties are hereby
expressly disclaimed. The Purchaser hereby acknowledges and agrees that,
except to the extent specifically set forth in this Agreement, without
limiting the generality of the foregoing and save as otherwise provided
herein the Vendor makes no representation or warranty regarding any assets
other than the Shares, and none shall be implied at law or in equity.
10. CONDUCT OF BUSINESS
(a) Except and in so far as the Vendor shall be entitled to take such steps or
to oblige the Company to take such steps as are necessary in
24
order to distribute the sum of $360,000 from the Company to the Vendor or
any of its Affiliates and/or as required by order of the Bankruptcy Court
or the Bankruptcy Code, the Vendor shall, pending the Closing Date:
(i) Operate the business of the Company in a proper business like fashion
and as currently conducted;
(ii) preserve in all material respects the Business, the Company's assets,
its employees and its operations; and
(iii) endeavor to preserve, in all material respects, the goodwill and
relationships with customers, suppliers and others having business
dealings with the Business, in each case, taking into account the
Vendor's status as debtors under Chapter 11 of the Bankruptcy Code.
(b) Save and in so far as the Purchaser may otherwise permit, in writing prior
to the Closing Date, without the prior written consent of the Purchaser,
the Vendor shall not create, incur, assume or suffer to exist any material
Encumbrance upon the Assets, of the Company.
(c) The Vendor and the Purchaser acknowledge that they are subject to the
Confidentiality Agreement. All information furnished to or obtained by the
Purchaser or any of the Purchaser's Representatives or the Vendor or any of
the Vendor's Representatives pursuant to this Agreement shall be subject to
the provisions of the Confidentiality Agreement and shall be treated as
Confidential Information for all purposes of the Confidentiality Agreement.
The Purchaser acknowledges that the Vendor or the Vendor's Representatives
may furnish Confidential Information as same is deemed necessary for the
purpose of obtaining the Sale Order.
(d) The Vendor shall act with all good faith at all times and in all respects
towards the Purchaser and use all reasonable endeavours to obtain the Sale
Order and any other Order or thing necessary to ensure completion of this
Agreement and, in so far as possible to take such steps so as to ensure
that there are no Material Adverse Effects to the Company and no adverse
consequences visited upon the Purchaser as a result of anything arising
therefrom or connected thereto. The foregoing is however subject to the
orders directions and requirements of the Bankruptcy Court, and the
Bankruptcy Code.
25
SCHEDULE 4
PURCHASER'S WARRANTIES
LITIGATION
1. There are no material claims, actions, proceedings or investigations pending
or, to the knowledge of the Purchaser, threatened against or relating to the
Purchaser before any court or other Governmental Authority acting in an
adjudicative capacity that could reasonably be expected to have a material
adverse effect on the Purchaser's ability to consummate the transactions
contemplated hereby.
FINANCE
2. On the Closing Date, the Purchaser has and will have funds sufficient to pay
the Purchase Price and all of its fees and expenses incurred in connection with
the transactions contemplated hereby.
INVESTMENT PURPOSE
3. The Purchaser is acquiring the Shares for the purpose of operation of the
business conducted by the Company.
CONDUCT OF BUSINESS
4. Except and in so far as the Purchaser shall be otherwise instructed by the
Vendor or as required by order of the Bankruptcy Court or of the Bankruptcy Code
and only and in so far as same is within the control of the Purchaser and
pending closing the Purchaser in his capacity as an employee of the Company
shall take such steps to carry out the functions of his employment in relation
to the operation of the Business of the Company in a proper business like
fashion and as currently conducted and shall take all reasonable steps to
preserve in all material respects the Business, the assets of the Company, its
employees and operations and endeavour to preserve, in all material respects,
the goodwill and relationships with customers, suppliers and others having
business dealings with the Business, in each case, taking into account the
Vendor's status as debtors under Chapter 11 of the Bankruptcy Code and its
effects on the Company.
COMPUTER LINE DISCONNECTION
5. The Purchaser will cause the line connecting the facility, in Galway,
Ireland, to the RS6000 IBM computer and the associated e-mail server located at
the facility in North Myrtle Beach, South Carolina, U.S.A. ("the Myrtle Beach
Facility") owned by the Vendor (or by any party to whom the Vendor sells or
transfers the Myrtle Beach Facility) to be disconnected within 90 days following
completion and the Purchaser shall be responsible for all costs and expenses
payable to U.S. Lec of Charlotte, North Carolina, U.S.A. associated with such
disconnection. Any such costs and expenses paid or incurred by the Vendor to
U.S. Lec of Charlotte, North Carolina, U.S.A. shall immediately be discharged on
demand by the Purchaser.
26
SCHEDULE 5
U.S. BANKRUPTCY PROCEDURES
(a) On the Petition Date (or as soon thereafter as is reasonably
practicable), the Vendor shall file a motion or motions and supporting papers
seeking (i) the entry of the Bidding Procedures Order and (ii) entry of the Sale
Order. The Bidding Procedures Order and the Sale Order shall be in form and
substance satisfactory to the Vendor and the Purchaser and may, at the Vendor's
option, be sought under one combined set of motion papers, which shall be in
form and substance reasonably acceptable to the Purchaser. The Vendor shall use
its commercially reasonable efforts to have the Bankruptcy Court enter the
Bidding Procedures Order as soon as practicable following the filing of the
motion therefore and the Purchaser shall co-operate therewith provided that the
Purchaser shall not be required to incur any costs expenses or liability in
respect thereof. The Vendor shall give appropriate notice under the Bankruptcy
Code of the request for such relief, including such additional notice as the
Bankruptcy Court shall direct, and provide appropriate opportunity for hearing,
to all parties entitled thereto, of all motions, orders, hearings, or other
proceedings relating to this Agreement or the transactions contemplated hereby.
(b) The Purchaser and the Vendor acknowledge that the Vendor must take
reasonable steps to demonstrate that it has sought to obtain the highest and
best price for the Shares, including giving notice thereof to the Vendor'
creditors and other interested parties, providing information about the Business
to prospective bidders (subject to appropriate confidentiality agreements),
entertaining higher and better offers from such prospective bidders, and, if
necessary, conducting an auction. To facilitate the foregoing, the Vendor shall
seek entry of the Bidding Procedures Order providing for the bidding provisions
and procedures as set forth in Exhibit A to the Bidding Procedures Order) the
"Overbid Procedures"). These procedures shall include the following provisions:
(i) Bidding. The Vendor shall consider as higher and better offers (the
"Overbids") only those offers that meet the following requirements:
(A) Bid Deadline. A Qualified Bidder (as defined in the
Bidding Procedures Order) that desires to make a bid shall
deliver written copies of its bid to (i) Bleacher Partners
LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Xxxxxxx X. Xxxxxxx, (ii) Insilco Technologies, Inc., 000 Xxxxx
Xxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxx, Xxxx 00000, Attn: Xxxxx X.
Xxxxx, (iii) Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxxxx X. Fractioning, and (iv)
Sidley Xxxxxx Xxxxx & Xxxx, Bank One Plaza, 00 X. Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attn: Xxxx Xxxxxxxx, not
later than such date and time as are specified in the Bidding
Procedures Order (the "Bid Deadline"). The Vendor may extend
the Bid Deadline in its sole discretion, but shall have no
obligation to do so. If the Vendor extends the Bid Deadline,
it shall promptly notify the Purchaser and all other Qualified
Bidders of such extension; provided that any extension of the
Bid Deadline shall be subject to the approval of the
Prepetition Agent.
27
(B) Overbid Requirements. A bid is a letter from a Qualified
Bidder (other than the Purchaser, whose participation as a
Qualified Bidder shall be on the terms set forth in this
Agreement) stating that (i) the Qualified Bidder offers to
purchase the Shares upon the terms and conditions set forth in
a copy of this Agreement attached to such letter, marked to
show those amendments and modifications to this Agreement,
including price and terms, that the Qualified Bidder proposes
and (ii) that the Qualified Bidder's offer is irrevocable
until the earlier of forty-eight (48) hours after the closing
of the sale of the Shares or January 2003. A Qualified Bidder
(other than the Purchaser) shall accompany its bid with
written evidence of a commitment for financing or other
evidence of ability to consummate the transaction. Unless
otherwise waived by the Vendor in writing, with the exception
of subclause (1) below (which shall not be waivable by the
Vendor), the Vendor will consider a bid only if the bid:
(1) provides overall value for the Shares to the
Vendor of at least [$50,000] over the Purchase Price
in this Agreement;
(2) is on terms that, in the Vendor's reasonable
business judgment, are not materially more burdensome
or conditional than the terms of this Agreement;
(3) is not conditioned on obtaining financing or on
the outcome of unperformed due diligence by the
bidder with respect to the assets sought to be
acquired;
(4) does not request or entitle the bidder to any
break-up fee, termination fee, expense reimbursement
or similar type of payments; and
(5) is received by the Bid Deadline.
A bid received from a Qualified Bidder that meets the above
requirements is a "Qualified Bid." A Qualified Bid will be valued based
upon factors such as the net value provided by such bid (including
consideration of any obligations of the Vendor in respect of any
topping fees, expense reimbursements or similar payment obligations)
and the likelihood and timing of consummating such transaction. For
purposes hereof, this Agreement executed by the Purchaser shall
constitute a Qualified Bid.
(ii) Deposit Requirement. All initial Overbids shall be
accompanied by a deposit of Ten Thousand Dollars ($10,000) (the
"Deposit") paid by wire transfer to an escrow agent designated by the
Vendor. The Deposit submitted by the Successful Bidder, together with
interest thereon, shall be applied against the payment of the cash
portion of the consideration upon closing of the sale to the Successful
Bidder. If the Successful Bidder fails to consummate the purchase of
the Shares due to such party's breach of its purchase agreement with
the Vendor, then the Vendor shall retain the Deposit of such Successful
Bidder, if any, as liquidated damages and continue with the sale of the
Shares to the Backup Bidder. Upon the earlier of 18 March, 2003 or
three (3) Business Days after the closing of the sale of the Shares,
any Deposit (i) not applied to the purchase of the Shares or (ii) not
retained by the Vendor due to a breach by the Successful Bidder shall,
together with interest, be returned to the appropriate bidders.
28
(iii) Auction. If, prior to the Bid Deadline, the Vendor has
received at least one Qualified Bid that the Vendor determines is
higher or otherwise better than the bid of the Purchaser set forth in
this Agreement, the Vendor shall conduct an auction (the "Auction")
with respect to the Shares and provide to the Purchaser and all
Qualified Bidders the opportunity to submit additional bids at the
Auction. The Auction shall take place on such date and time as are
specified in the Bidding Procedures Order, at the offices of Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such later
time or other place as the Vendor shall notify the Purchaser and all
other Qualified Bidders who have submitted Qualified Bids and expressed
their intent to participate in the Auction, as set forth above, but in
no event shall the Auction occur later than two (2) Business Days prior
to the Sale Hearing scheduled in the Bidding Procedures Order. Only
Qualified Bidders (including, for the avoidance of doubt, the
Purchaser) will be eligible to participate at the Auction. At least two
(2) Business Days prior to the Auction, each Qualified Bidder who has
submitted a Qualified Bid must inform the Vendor whether it intends to
participate in the Auction. The Vendor shall provide or make available
copies of any Qualified Bid(s) that the Vendor believes are the highest
or otherwise best offer(s) to all Qualified Bidders who intend to
participate in the Auction at least two Business Days prior to the
commencement thereof, or as soon thereafter as practicable.
(iv) Based upon the terms of the Qualified Bids received, the
number of Qualified Bidders participating in the Auction, and such
other information as the Vendor determines is relevant, the Vendor, it
its sole discretion, may conduct the Auction in the manner it
determines will achieve the maximum value for the Shares. At the
beginning of the Auction, a representative of the Vendor shall announce
the amount of the bid that is at such time determined by the Vendor to
be the highest and best bid. Thereafter, all additional bids shall be
in increments of [ten thousand dollars ($10,000) or integral multiples
thereof. The Vendor may adopt such other rules for bidding at the
Auction, that, in the Vendor's business judgment, will better promote
the goals of the bidding process and that are not inconsistent with any
of the provisions of the Bidding Procedures Order, the Bankruptcy Code
or any order of the Bankruptcy Court entered in connection herewith.
Prior to the start of the Auction, the Vendor will inform the Qualified
Bidders (including for the avoidance of doubt, the Purchaser)
participating in the Auction of the manner in which the Auction will be
conducted.
(v) As soon as practicable after the conclusion of the
Auction, the Vendor, in consultation with its legal and financial
advisors and the Prepetition Agent, shall (A) review each Qualified Bid
on the basis of financial and contractual terms and the factors
relevant to the sale process, including those factors affecting the
speed and certainty of consummating the sale and any obligations of the
Vendor in respect of any topping fee, expense reimbursement or similar
payment obligation and (B) identify the highest or otherwise best offer
for the Shares at the Auction (the "Successful Bid") and the bidder
making such bid, the "Successful Bidder"). At the Sale Hearing, the
Vendor shall present the Successful Bid to the Bankruptcy Court for
approval. In the event that the sale to the Successful Bidder is not
consummated, the Vendor may seek to consummate a sale of the Shares to
the next highest and best offer (the "Backup Bid", and such bidder, the
"Backup Bidder").
29
(vi) If the Purchaser is not identified as the Successful
Bidder following the Auction, the Purchaser is not then in breach of
any provision of this Agreement, the Purchaser has not terminated this
Agreement and a sale the Shares is consummated with a party other than
the Purchaser, then the Purchaser will be entitled to receive the
Topping Fee, subject to the terms and conditions of Section [9.3(q)] of
this Agreement.
(vii) The Purchaser shall be permitted to credit the amount of
the Topping Fee to its bid if it makes a competing bid at the Auction
in such a manner that the Purchaser shall be permitted to match the
dollar value of any competing bid submitted by another entity by
submitting a bid in an amount equal to, but no more than, the bid to be
matched minus the amount of the Topping Fee.
30
SCHEDULE 6
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
-------------------------------------------------X
: CHAPTER 11
IN RE :
: CASE NO. 02_____ (__)
INSILCO TECHNOLOGIES, INC., ET AL.1, :
: (JOINTLY ADMINISTERED)
DEBTORS. :
:
-------------------------------------------------X
ORDER PURSUANT TO 11 U.S.C.SS.SS.363(B) AND 105(A) AND FED. R.BANKR. P. 2002,
6004 AND 9014 APPROVING (A) BIDDING PROCEDURES (B) TERMINATION
PAYMENTS AND (C) THE FORM AND MANNER OF NOTICE OF THE SALE OF
THE DEBTORS' EQUITY INTEREST IN INSILCO TEORANTA, AND GRANTING
RELATED RELIEF
This matter having come before the Court on the Motion of the Debtors for Orders
Pursuant to 11 U.S.C. xx.xx. 363(b), 1146(c) and 105(a) and Fed. R. Bankr. P.
2002, 6004 and 9014 (I) Approving (A) Bidding Procedures (B) Termination
Payments and (C) the Form and Manner of Notice of the Sale of the Debtors'
Equity Interest in Insilco Teoranta and Granting Related Relief, and (II)
Authorizing and Approving the Sale of the Debtors' Equity Interest in Insilco
Teoranta Free and Clear of Liens, Claims and Encumbrances (the "Motion")2 filed
by the above-captioned debtors and debtors-in-possession (the "Debtors"); and
the Debtors by the Motion have requested at this time the entry of an order (the
"Bidding Procedures Order") (a) approving bidding procedures (the "Bidding
Procedures") for the sale (the "Sale") of all the issued and
----------
1 The other debtors in these jointly administered chapter 11 proceedings are
Insilco Holding Co.; InNet Technologies, Inc.; Insilco International
Holdings, Inc.; Precision Cable Mfg. Co., Inc.; Eyelets for Industry, Inc.;
EFI Metal Forming, Inc.; Xxxxxxx Stamping Corporation; Xxxxxxx Connector
Systems, Inc.; Signal Caribe, Inc.; and Signal Transformer Co., Inc.
31
outstanding equity securities of Insilco Teoranta (the "Shares") by Insilco
Technologies, Inc. (the "Seller"), (b) authorizing the Seller to make the
Termination Payments (as defined in the Sale Agreement (as defined in below)),
(c) approving the form and manner of notice of the Sale and (d) scheduling a
hearing on approval of the Sale (the "Sale Hearing") pursuant to and as
described in the Specimen Share Sale and Purchase Agreement, dated as of
December [_____], 2002 (the "Sale Agreement"), by and among the Seller and
Xxxxxxx Xxxxxxx as purchaser (the "Buyer"); and the Debtors having determined
that approving the Bidding Procedures and granting the other relief requested in
the Motion will induce competitive bidding for the Debtors' assets and will
maximize the value of the Debtors' estates; and the Court having considered the
Motion and the arguments of counsel in support of the entry of the Bidding
Procedures Order, and the opposition thereto, if any, at a hearing for such
purpose (the "Bidding Procedures Hearing"); and it appearing that the relief
requested in the Motion is in the best interests of the Debtors, their estates
and creditors and other parties in interest; and it appearing that notice of the
Motion has been given as set forth in the Motion and that no other future notice
need be given; and upon the record of the Bidding Procedures Hearing; and after
due deliberation thereon; and good cause appearing therefore, it is hereby
FOUND AND DETERMINED THAT:3
THE COURT HAS JURISDICTION OVER THIS MATTER AND OVER THE PROPERTY OF THE DEBTORS
AND THEIR RESPECTIVE BANKRUPTCY ESTATES PURSUANT TO 28 U.S.C. SS. 1334 AND SS.
157(A). THIS IS A CORE PROCEEDING TO 28 U.S.C.SS.1334 ANDSS.157(B)(2)(A), (N)
AND (O). THE DEBTORS HAVE ARTICULATED GOOD AND SUFFICIENT REASONS FOR APPROVING
(I) THE BIDDING PROCEDURES (II) THE TERMINATION PAYMENTS
----------
2 Unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed to them in the Motion.
3 Findings of fact shall be construed as conclusions of law and conclusions
of law shall be construed as findings of fact when appropriate. See Fed. R.
Bankr. P. 7052.
32
AND (III) THE FORM AND MANNER OF NOTICE OF THE MOTION AS IT RELATES TO THE SALE
AND THE SALE HEARING (THE "SALE NOTICE"). THE DEBTORS HAVE ARTICULATED GOOD AND
SUFFICIENT REASONS FOR SCHEDULING THE SALE HEARING. THE DEBTORS' OBLIGATIONS TO
THE BUYER IN RESPECT OF THE TERMINATION PAYMENTS CONSTITUTE ACTUAL AND NECESSARY
COSTS AND EXPENSES OF PRESERVING THE DEBTORS' ESTATES, WITHIN THE MEANING OF
SECTIONS 503(B) AND 507(A)(1) OF THE BANKRUPTCY CODE AND PROVIDE SUBSTANTIAL
BENEFIT TO THE DEBTORS' ESTATES. THE DEBTORS' PAYMENT OF THE TERMINATION
PAYMENTS ON THE TERMS AND CONDITIONS SET FORTH IN THE SALE AGREEMENT IS
REASONABLE AND APPROPRIATE, INCLUDING IN LIGHT OF THE SIZE AND NATURE OF THE
SALE AND THE EFFORTS THAT HAVE BEEN AND WILL BE EXPENDED BY THE BUYER
NOTWITHSTANDING THAT THE PROPOSED SALE IS SUBJECT TO HIGHER OR BETTER OFFERS FOR
THE SHARES. THE TERMS AND CONDITIONS OF THE TERMINATION PAYMENTS WERE NEGOTIATED
BY THE PARTIES AT ARMS' LENGTH AND IN GOOD FAITH, AND ARE NECESSARY TO ENSURE
THAT THE BUYER WILL CONTINUE TO PURSUE ITS PROPOSED ACQUISITION OF THE SHARES.
THE TERMINATION PAYMENTS WERE A MATERIAL INDUCEMENT FOR, AND CONDITION OF, THE
BUYER'S ENTRY INTO THE SALE AGREEMENT. THE BUYER IS UNWILLING TO COMMIT TO HOLD
OPEN ITS OFFER TO PURCHASE THE SHARES UNDER THE TERMS OF THE SALE AGREEMENT
UNLESS IT IS ASSURED PAYMENT OF THE TERMINATION PAYMENTS IN ACCORDANCE WITH THE
TERMS OF THE SALE AGREEMENT. THUS, ASSURANCE TO THE BUYER OF PAYMENT OF THE
TERMINATION PAYMENTS HAS PROMOTED MORE COMPETITIVE BIDDING BY INDUCING THE
BUYER'S BID THAT OTHERWISE WOULD NOT HAVE BEEN MADE, AND WITHOUT WHICH BIDDING
WOULD HAVE BEEN LIMITED. BECAUSE THE TERMINATION PAYMENTS INDUCED THE BUYER TO
RESEARCH THE VALUE OF THE SHARES AND SUBMIT A BID THAT WILL SERVE AS A MINIMUM
OR FLOOR BID ON WHICH OTHER BIDDERS CAN RELY, THE BUYER HAS PROVIDED A BENEFIT
TO THE DEBTORS' ESTATES BY INCREASING THE LIKELIHOOD THAT THE PRICE AT WHICH THE
SHARES ARE SOLD WILL REFLECT THEIR TRUE WORTH. ABSENT AUTHORIZATION OF THE
TERMINATION PAYMENTS, THE DEBTORS MAY LOSE THE OPPORTUNITY TO OBTAIN THE HIGHEST
AND BEST AVAILABLE OFFER FOR THE SHARES. THE BIDDING PROCEDURES ARE REASONABLE
AND APPROPRIATE AND REPRESENT THE BEST METHOD FOR MAXIMIZING THE RETURN FOR THE
SHARES.
NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
BIDDING PROCEDURES
THE BIDDING PROCEDURES, AS SET FORTH IN EXHIBIT A HERETO (AND INCORPORATED
HEREIN BY REFERENCE AS IF FULLY SET FORTH IN THIS BIDDING PROCEDURES ORDER),
ARE HEREBY APPROVED AND SHALL GOVERN ALL PROCEEDINGS RELATING TO THE
SALE, THE SALE AGREEMENT AND ANY SUBSEQUENT BIDS FOR THE SHARES
IN THESE CASES.
SALE HEARING
33
PARAGRAPHS (M) AND (N) OF THE SECTION 10 OF THE SALE AGREEMENT ARE HEREBY
APPROVED AND SHALL BE ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS. THE DEBTORS
ARE HEREBY AUTHORIZED TO MAKE THE TERMINATION PAYMENTS, SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN THE SALE AGREEMENT. THE DEBTORS' OBLIGATIONS IN RESPECT
OF THE TERMINATION PAYMENTS SHALL SURVIVE TERMINATION OF THE SALE AGREEMENT AND,
UNTIL PAID, SHALL CONSTITUTE AN ADMINISTRATIVE EXPENSE OF THE SELLERS' ESTATES
WITHIN THE MEANING OF SECTIONS 503(B) AND 507(A)(1) OF THE BANKRUPTCY CODE AND
SHALL BE PAID IN ACCORDANCE WITH THE TERMS OF THE SALE AGREEMENT WITHOUT FURTHER
ORDER OF THE COURT.
THE SALE HEARING SHALL BE HELD BEFORE THE UNDERSIGNED UNITED STATES BANKRUPTCY
JUDGE, ON _________, 2003, AT ____ [A.M./P.M.] IN THE UNITED STATES BANKRUPTCY
COURT FOR THE DISTRICT OF DELAWARE, 000 XXXXXX XXXXXX, XXXXXXXXXX, XXXXXXXX, AT
WHICH TIME THE COURT SHALL CONSIDER THE REQUEST FOR APPROVAL OF THE SALE AS SET
FORTH IN THE MOTION AND CONFIRM THE RESULTS OF THE AUCTION (AS DEFINED IN
EXHIBIT A HERETO), IF ANY. OBJECTIONS TO THE ENTRY OF AN ORDER APPROVING THE
SALE AND THE OTHER RELIEF REQUESTED IN THE MOTION MUST BE MADE IN WRITING AND
MUST BE FILED WITH THE BANKRUPTCY COURT AND SERVED SO AS TO BE RECEIVED BY NO
LATER THAN 4:00 P.M. (PREVAILING NY TIME) ON _______, 2003: (I) SHEARMAN &
STERLING, 000 XXXXXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000, COUNSEL FOR THE
DEBTORS, ATTN: XXXXXXXXX X. XXXXXXXXX AND XXXXX X. XXXXXXX; (II) THE OFFICE OF
THE UNITED STATES TRUSTEE; AND (III) SIDLEY XXXXXX XXXXX & XXXX, BANK ONE PLAZA,
00 X. XXXXXXXX XXXXXX, XXXXXXX, XXXXXXXX 00000, COUNSEL TO THE PREPETITION
AGENT, ATTN: XXXX BOX. THE FAILURE OF ANY OBJECTING PARTY TO TIMELY FILE ITS
OBJECTION SHALL BE A BAR TO THE ASSERTION BY SUCH PARTY AT THE SALE HEARING OR
THEREAFTER OF ANY OBJECTION TO THE MOTION, THE SALE OR THE DEBTORS' CONSUMMATION
AND PERFORMANCE OF THE SALE AGREEMENT, INCLUDING THE TRANSFER OF THE SHARES FREE
AND CLEAR OF ALL INTERESTS.
THE SALE HEARING MAY BE ADJOURNED FROM TIME TO TIME WITHOUT FURTHER NOTICE TO
CREDITORS OR PARTIES IN INTEREST OTHER THAN BY ANNOUNCEMENT OF THE ADJOURNMENT
IN OPEN COURT OR ON THE COURT'S CALENDAR ON THE DATE SCHEDULED FOR THE SALE
HEARING OR ANY ADJOURNED DATE.
NOTICE
34
THE FORM AND MANNER OF NOTICE OF THE MOTION AND THE SALE HEARING SHALL BE GOOD
AND SUFFICIENT, AND NO OTHER OR FURTHER NOTICE THEREOF SHALL BE REQUIRED, IF
GIVEN AS FOLLOWS:
NOTICE OF SALE HEARING. The Debtors shall, within five (5) days of the
entry of the Bidding Procedures Order on the docket of the Bankruptcy
Court, serve a copy of each of the Motion, the proposed form of order
approving the Sale of the Shares (substantially in the form of Exhibit H
to the Motion the "Sale Order") and this Bidding Procedures Order by
first class mail, postage prepaid, upon: (i) all entities known to have
expressed an interest in a transaction with respect to the Shares during
the past six (6) months; (ii) all entities known to have asserted any
lien, claim, interest or encumbrance (collectively, "Interests") in or
upon the Shares; (iii) all federal, state, and local regulatory or taxing
authorities or recording offices which have a reasonably known interest
in the relief requested by the Motion; (iv) the United States Attorney's
office; (v) the Securities and Exchange Commission; (vii) the Internal
Revenue Service; (viii) all entities that have requested notice in
accordance with Rule 2002 of the Federal Rules of Bankruptcy Procedures;
and (ix) counsel to any official committee established in these chapter
11 cases;
SALE NOTICE. The Debtors shall, within five (5) days of the entry of the
Bidding Procedures Order on the docket of the Bankruptcy Court, serve by
first-class mail, postage pre-paid, a copy of the Sale Notice
substantially in the form annexed to the Motion as Exhibit C, upon all
other known creditors of the Debtors;
PUBLICATION NOTICE. Within ten (10) days after the date the Bidding
Procedures Order is entered on the Bankruptcy Court docket, or as soon
thereafter as is practicable, the Debtors shall cause notice
substantially in the form of the notice attached to the Motion as Exhibit
E, to be published in the national edition of The Wall Street Journal.
The Court shall retain jurisdiction over any matter or dispute arising from or
relating to the implementation of this Bidding Procedures Order.
Notwithstanding Bankruptcy Rules 6004(g) and 6006(d), this Bidding Procedures
Order shall be effective upon entry.
Dated: Wilmington, Delaware
December __, 2002
------------------------------
UNITED STATES BANKRUPTCY JUDGE
35
SCHEDULE 7
October 16, 2002
Insilco Holding Co.
c/o Gleacher Partners LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
CONFIDENTIALITY AGREEMENT
Ladies and Gentlemen:
In connection with our possible interest in the potential sale, in whole or
in part (the "Transaction"), of Insilco Holding Co. ("Insilco") and the direct
and indirect subsidiaries of Insilco (herein referred to together as the
"Company"), or all or a portion of the Company's assets, you or your
Representatives (as defined below) are, outside of the ordinary course of our
duties as employees of the Company, furnishing us or our Representatives with
certain information (written or oral) which is either non-public, confidential
or proprietary in nature. This information furnished to us or our
Representatives, together with any notes, analyses, compilations, forecasts,
studies, memoranda, computer-stored data or other documents prepared by us or
our Representatives which contain or otherwise reflect such information, is
hereinafter referred to as the "Information." As used in this agreement, the
term "Representative" means, as to any person (and, for the avoidance of doubt,
not as to the Company), such person's affiliates and its and their respective
directors, officers, employees, partners, shareholders, members, agents,
advisors (including financial advisors, attorneys and accountants) and other
representatives.
In consideration of your furnishing us with the Information, outside of the
ordinary course of our duties as employees of the Company, we agree that outside
of the Company the Information will be kept confidential and shall not, without
your prior written consent, be disclosed by us or our Representatives, in any
manner whatsoever outside of the Company, in whole or in part, and shall not be
used by us outside of the Company or our Representatives other than in
connection with evaluating a possible Transaction. For purposes hereof, the term
"Information" shall not include such portion of the information which (i) is or
becomes generally available to the public other than as a result of a disclosure
by us or our Representatives or (ii) is or becomes available to our
Representatives on a nonconfidential basis from a source which, to our
knowledge, is not prohibited from disclosing such information to us or our
Representatives.
Outside of the ordinary course of our duties as employees of the Company,
we agree to reveal the Information only to our Representatives who need to know
the Information for the purpose of evaluating the possible Transaction, who are
informed by us of the confidential nature of the Information and who shall agree
to act in accordance with the terms and conditions of this agreement. We shall
be responsible for any breach of this agreement by our Representatives.
Without your prior written consent, except as required by law (as advised
by counsel), or as required by our duties as employee of the Company and which
in either case will require that prior notice will be given to you, we and our
Representatives will not disclose to any person the fact that the Information
has been made available, that discussions or negotiations are taking place or
have taken place concerning a possible Transaction involving us and the Company
or any of the terms, conditions or other facts with respect to any such possible
Transaction, including the status thereof. The term "person" as used in this
agreement shall be interpreted broadly to include the media and any governmental
representative or authority, company, partnership, group, individual or other
entity.
All copies of the Information, except for that portion of the Information
which consists of notes, analyses, compilations, forecasts, studies, memoranda,
other computer-stored data or other documents prepared by us or our
Representatives ("Internal Materials"), will be returned to you immediately upon
your request. In addition, Internal Materials will be destroyed upon your
request and such destruction will be confirmed in writing to you.
Notwithstanding such return or destruction, we and our Representatives will
continue to be bound by our obligations of confidentiality (including with
respect to oral Information) and our other obligations as provided hereunder.
It is understood that all (i) communications regarding a possible
Transaction, (ii) requests for additional information, (iii) requests for
facility tours or management meetings and (iv) discussions or questions
regarding procedures, will be submitted or directed to Gleacher Partners LLC
("Gleacher") or, if requested by an executive officer of the Company, to
designated officers of the Company. We agree that we will not, without your
prior written consent, contact or engage in any communications regarding the
Company or a possible Transaction with (a) any of the holders of the Company's
12% Senior Subordinated Notes due 2007, governed by the indenture dated as of
November 9, 1998, (b) any of the holders of the Company's 14% Senior Discount
Notes Due 2008, governed by the indenture dated August 17, 1998, or (c) any of
the banks or financial institutions that are lenders under, or otherwise party
to, the Second Amended and Restated Credit Agreement, dated as of August 25,
2000, by and among Insilco Technologies, Inc., T.A.T. Technology Inc., various
financial institutions as lenders and Bank One, N.A. as administrative agent;
provided, however, that we may contact financial institutions solely to discuss
potential financing for a possible Transaction.
We acknowledge that none of you, Gleacher or your or its Representatives,
makes any express or implied representation or warranty as to the accuracy or
completeness of the Information, and each of you, Gleacher and your and its
Representatives, expressly disclaims any and all liability that may be based on
the Information, errors therein or omissions therefrom. We agree that we are not
entitled to rely on the accuracy or completeness of the Information and that we
shall only be entitled to rely solely on the representations and warranties made
to us in any definitive agreement regarding the Transaction.
In the event that outside of the ordinary course of our duties as employees
of the Company, we or any of our Representatives are required or requested to
disclose any of the Information pursuant to any applicable law, regulation or
legal process, we will provide you with prompt prior notice thereof so that you
may seek a protective order or other appropriate remedy and/or waive compliance
with the provisions of this agreement. In the event that such protective order
or other remedy is not obtained, or that the Company waives
1
compliance with the provisions of this agreement, we will furnish only that
portion of the Information which we are advised by counsel is legally required
and will exercise our reasonable efforts to obtain reliable assurance that
confidential treatment will be accorded the Information.
We agree that you reserve the right, in your sole and absolute discretion,
to reject any or all proposals, to decline to furnish further information and to
terminate discussions and negotiations with us at any time. The exercise by you
of these rights shall not affect the enforceability of any provision of this
agreement.
Until the date of termination of this agreement, except with the prior
written consent of the Company, we agree not to, and will direct our
Representatives not to, (a) hold any discussions regarding the Company or any of
its subsidiaries with suppliers, customers and/or any other person with whom the
Company or any of its subsidiaries have a relationship outside of the ordinary
course of our duties as employees of the Company or (b) solicit for hire any of
the executive officers or other management-level employees of the Company or any
of its subsidiaries; provided that, this agreement shall not prohibit (x) any
advertisement or general solicitation that is not specifically targeted at such
officers and employees or (y) soliciting the employment of any officer or
employee who has been terminated by the Company.
We hereby acknowledge that we are aware, and that we will advise our
Representatives who are furnished Information, that securities laws prohibit any
person who has received from an issuer material, non-public information
concerning the matters which are the subject of this agreement from purchasing
or selling securities of such issuer or from communicating such information to
any other person.
We understand and agree that no failure or delay by you or your
Representatives in exercising any right, power or privilege hereunder shall
operate as a waiver hereof nor shall any single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege
hereunder. We acknowledge that remedies at law may be inadequate to protect
against breach of this agreement, and we hereby in advance agree to the granting
of specific performance and/or injunctive relief in your favor without proof of
actual damage upon a finding by a court of a breach of this agreement by us.
Such relief shall not be deemed to be the exclusive relief for a breach by us or
our Representatives of this agreement but shall be in addition to all other
remedies available to you at law or equity. In addition, in the event that any
portion of this agreement shall be held to be invalid or unenforceable for any
reason, it is hereby agreed that such invalidity or unenforceability shall not
affect the other portions of this agreement.
We hereby confirm that we are not acting as a broker for or a
representative of any person and are considering the Transaction only for our
own account. Any assignment of this agreement by us without your prior written
consent shall be void.
Except as otherwise provided herein, the terms and provisions of this
agreement will terminate two years from the date hereof.
We agree that this agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York. We hereby
irrevocably consent to the jurisdiction of the federal and state courts located
in the City of New York (and appellate
2
courts therefrom) for any actions or proceedings arising out of or relating to
this agreement, irrevocably waive any objection to the venue of any such action
or proceeding in any such court and unconditionally waive any objection that
such action or proceeding has been brought in an inconvenient forum and agree
not to plead or claim the same.
Please confirm your agreement with the foregoing by signing and returning
to the undersigned the duplicate copy of this agreement enclosed herewith.
Very truly yours,
XXXXXXX XXXXXXX
By: /S/ XXXXXXX XXXXXXX
-------------------------
Name: Xxxxxxx Xxxxxxx
Title:
Accepted:
INSILCO HOLDING CO.
By: /S/ XXXXX X. XXXXX
-------------------------
Name: Xxxxx X. Xxxxx
Title: President
3
DISCLOSURE LETTER
16th day of December 2002
To:
Xxxxxxx Xxxxxxx
0 Xxxxxxxxxxx Xxxxx,
Xxxxxxxxxxxxx, Xx. Xxxxxx,
Xxxxxxxx Xxxxxxx.
RE/ Insilco Teoranta
Dear Sirs,
We refer to a Share Sale and Purchase Agreement of even date herewith made
between Insilco Technologies Inc and Xxxxxxx Xxxxxxx which agreement is
hereinafter referred to as "the Agreement" and which Agreement provides for the
sale of entire issued share capital of Insilco Teoranta (hereinafter called "the
Company").
This letter constitutes the Disclosure Letter referred to in the Agreement.
Words and phrases used in this letter have the same meanings as in the Agreement
unless the context otherwise requires. The warranties contained in the Agreement
are made and given subject to the disclosures set out below.
This disclosures contained in this letter are not to be taken as an admission on
our behalf, that all or any part of the matters call for disclosure.
No representation is made that the matters disclosed herein constitute an
exhaustive list of everything capable of, or suitable for, disclosure. Where any
conflict exists between the information contained in any document supplied to
you, the Purchaser in the course of negotiation and preparation of this
transaction and the disclosures made in this letter, the contents of this letter
shall prevail.
Disclosures are made by reference to the actual knowledge of the members of the
Board of Directors, servants and agents of the Vendor at the date hereof.
GENERAL DISCLOSURES
The following are deemed to be disclosed, including, where relevant, all matters
which would be apparent from an inspection of the same:-
(1) All matters and things contemplated or required to be done by or pursuant
to the Agreements.
(2) All matters apparent from the title deeds to the Property which have been
furnished to you or which would be disclosed by title searches or physical
inspection of the Property.
(3) All matters and things which would or will be revealed by searches in the
Central Office of the High Court, Circuit Court and District Court and
searches in the Companies Registration Office against and in respect of
each Group Company.
(4) All information available from an inspection or search of all documents,
registers, and records which may be inspected by the public or which are
available for inspection from any governmental, local or statutory
authority or body, and all matters referred to therein or apparent
therefrom.
(5) Any matter disclosed or provided for in the Accounts.
(6) All matters, provided for or disclosed in the accounts of the Company for
any year prior to the date hereof which have been furnished to you, the
Purchaser, and in the management accounts thereof for the period ending
September 2002.
(7) The contents of all the statutory registers and records and the minute
books of each Group Company.
(8) All matters which are in the public domain.
2
PRESENT WHEN THE COMMON SEAL
Of INSILCO TECHNOLOGIES, INC.
Was impressed hereon:
/S/ XXXXX X. XXXXX
-------------------------
Xxxxx X. Xxxxx
Director
/S/ XXXXX X. XXXXX
-------------------------
Xxxxx X. Xxxxx
President and Chief Executive Officer
SIGNED SEALED AND DELIVERED
By the said XXXXXXX XXXXXXX
In the presence of:
/S/ XXXXXXX XXXXXXX
-------------------------
Xxxxxxx Xxxxxxx
Witness ____________________L
Address S Dun Na Mara Drive
Renmere
Galway
Occupation Financial Controller
3
SPECIFIC DISCLOSURES
The following are disclosed. The paragraph numbers stated below are for
convenience of reference only and refer to the corresponding clauses in Schedule
3 to the Share Sale and Purchase Agreement. Disclosure of any particular matter
by reference to a specific paragraph is to be regarded as a disclosure in
respect of each and every other paragraph as far as same shall be applicable:-
No further disclosure over and above the General Disclosures hereinbefore
recited.
/S/ XXXXX X. XXXXX
----------------------
VENDORS
WE HEREBY ACCEPT THE WITHIN DISCLOSURES.
DATED THE 16TH DAY OF DECEMBER 2002
/S/ XXXXXXX XXXXXXX
----------------------
PURCHASER
4
