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EXHIBIT 10.1
XXXXXXXX INTERNATIONAL CORPORATION
EMPIRE STOCK CORP.
AND
THE YORK GROUP, INC.
STOCK PURCHASE AGREEMENT
Dated as of May 24, 2001
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TABLE OF CONTENTS
ARTICLE I. Purchase of Stock; Consideration
1.01 Stock Purchase
1.02 Consideration.
1.03 Stock Certificates; Corporate Records
ARTICLE II. Representations and Warranties of York
2.01 Organization and Authority
2.02 Due Authorization
2.03 Capitalization; Shares
2.04 Absence of Conflicts
2.05 Financial Information
2.06 Absence of Material Changes
2.07 Title to Properties; Liens.
2.08 Material Contracts and Agreements
2.09 Employment Agreements
2.10 Employee Benefit Plans
2.11 Patents, Trademarks, Copyrights, Licenses and Secrecy Agreements
2.12 Trade Secrets
2.13 Governmental Licenses and Permits; Consents
2.14 Indebtedness and Commitments
2.15 Taxes
2.16 Insurance
2.18 Compliance with Laws
2.19 Environmental and Occupational Safety Matters
2.20 Brokers' Fees
2.21 Contingencies
2.22 Condition of Tangible Assets
2.23 Inventory
2.24 Books and Records
2.25 Warranties
2.26 Restrictions on Business Activities
ARTICLE III Representations and Warranties of Xxxxxxxx and Empire
3.01 Organization and Authority
3.02 Due Authorization
3.03 Absence of Conflicts
3.04 Litigation and Claims Against Xxxxxxxx and Empire
3.05 Brokers' Fees
3.06 Governmental Approvals
3.07 Warranties
ARTICLE IV Covenants
4.01 Employees
4.02 Financial Statements
4.03 Tax Matters
4.04 Environmental Response
4.05 Post-Closing Corporate Governance of Subsidiaries
4.06 Uses of Names
ARTICLE V Remedies for Breaches of this Agreement
5.01 Survival of Representations, Warranties and Covenants
5.02 Indemnification Provisions for Benefit of Xxxxxxxx and Empire
5.03 Indemnification Provisions for Benefit of York
5.04 Notice of Claim for Indemnification
5.05 Matters Involving Third Parties
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5.06 Exclusive Remedy
ARTICLE VI Definitions
ARTICLE VII Miscellaneous
7.01 Further Assurances
7.02 Expenses
7.03 Governing Law
7.04 Entire Agreement; Modification; Waiver
7.05 Notices
7.06 Counterparts
7.07 Matters of Construction, Interpretation and the Like
(a) Construction
(b) Severability
7.08 No Third-Party Beneficiaries
7.09 Succession and Assignment
7.10 Time of Essence
7.11 Noncompetition
(a) Non-Disclosure of Confidential Information
(b) Restrictions on Competition
(c) Remedies
(d) Authorization to Modify Restrictions
SCHEDULES
Schedule 2.01(b) Subsidiaries and Investments; Foreign Jurisdictions of York
Bronze
Schedule 2.01(c) Subsidiaries and Investments; Foreign jurisdictions of OMC
Schedule 2.01(d) Subsidiaries and Investments; Foreign Jurisdictions of Sub 1
Schedule 2.03(a) Capitalization of York Bronze
Schedule 2.03(b) Capitalization of OMC
Schedule 2.03(c) Capitalization of Sub 1
Schedule 2.04 Third Party Consents
Schedule 2.05 Financial Statements
Schedule 2.06 Changes Since December 31, 2000
Schedule 2.07(a)(i) York Bronze Real Property
Schedule 2.07(a)(ii) OMC Real Property
Schedule 2.07(a)(iii) Sub 1 Real Property
Schedule 2.07(b) Buildings and Equipment
Schedule 2.07(c) Other Assets
Schedule 2.08 Contracts and Agreements
Schedule 2.09 Employment Contracts
Schedule 2.10 Employee Benefit Plans
Schedule 2.11 Patents, Trademarks and Copyrights
Schedule 2.12 Trade Secrets
Schedule 2.14 Indebtedness and Commitments
Schedule 2.15 Taxes
Schedule 2.17 Litigation and Claims
Schedule 2.18 Compliance with Laws
Schedule 2.19 Environmental and Occupational Safety Matters
Schedule 2.21 Contingencies
Schedule 4.04 Environmental Response Activities
Schedule 4.05(e) Officers of York Bronze, OMC and Sub 1 Immediately After
Closing
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") dated as of May 24, 2001, is
entered into by and among XXXXXXXX INTERNATIONAL CORPORATION, a Pennsylvania
corporation ("Xxxxxxxx"), EMPIRE STOCK CORP., a Delaware corporation
("Empire"), and THE YORK GROUP, INC., a Delaware corporation ("York").
Capitalized terms used in this Agreement which are not otherwise defined
herein are defined in Article VI hereof.
WITNESSETH:
WHEREAS, Empire is a wholly-owned subsidiary of Xxxxxxxx; and
WHEREAS, York is the sole shareholder of York Bronze Company, a Delaware
corporation ("York Bronze"), and of OMC Industries, Inc., a Texas corporation
("OMC"); and
WHEREAS, York Bronze and OMC collectively own all of the issued and
outstanding shares of common stock and preferred stock of York Bronze Trade
Company, a West Virginia corporation ("Sub 1") (each of York Bronze and OMC
are referred to at times herein as a "Subsidiary" and collectively as the
"Subsidiaries," which term shall also include any of their respective
subsidiaries, including Sub 1); and
WHEREAS, on May 21, 2001, York Bronze and OMC transferred and conveyed to Sub
1 approximately 75% of the collective assets and Sub 1 assumed all liabilities
of York Bronze and OMC (not including the Excluded Assets, as defined herein)
in exchange for all of the issued and outstanding shares of common stock and
of preferred stock of Sub 1 (the "Sub 1 Asset Transfer"); and
WHEREAS, prior to the date hereof, Empire acquired from York Bronze and OMC
all of the remaining assets of York Bronze and OMC (other than the Excluded
Assets, the Sub 1 Common Stock and the Sub 1 Preferred Stock, as defined
herein) pursuant to that certain Asset Purchase Agreement dated as of May 24,
2001 (the "Asset Purchase Agreement") among Empire, York Bronze and OMC; and
WHEREAS, York wishes to sell to Empire, and Empire wishes to purchase from
York, approximately 75% of the issued and outstanding shares of the capital
stock of York Bronze and of OMC upon the terms and conditions set forth
herein; and
WHEREAS, as an inducement for York to sell approximately 75% of the capital
stock of York Bronze and of OMC to Empire, Xxxxxxxx has agreed to enter into
this Agreement and to make representations, warranties, covenants,
acknowledgments and agreements set forth herein to York and for York's benefit
hereunder.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
ARTICLE I
Purchase of Stock; Consideration
1.01 Stock Purchase. In reliance upon the representations and warranties
contained herein and on the terms and conditions of this Agreement, York
hereby sells, conveys, assigns, transfers and delivers to Empire, free and
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clear of all Liens, and Empire hereby purchases from York, for the
consideration specified in Section 1.02 hereof, 755.42725 shares (the "York
Bronze Purchased Shares") of the common stock of York Bronze, par value $0.001
per share (the "York Bronze Common Stock"), and 755.55556 shares (the "OMC
Purchased Shares") of the common stock of OMC, par value $0.10 per share (the
"OMC Common Stock"). The York Bronze Purchased Shares and the OMC Purchased
Shares are collectively referred to as the "Purchased Stock". The Purchased
Stock represents 75.542725% of all of the issued and outstanding shares of
York Bronze Common Stock and 75.555556% of all of the issued and outstanding
shares of the OMC Common Stock.
1.02 Consideration. Empire hereby purchases the Purchased Stock and, in
exchange therefor, concurrently herewith delivers to York via wire transfer in
immediately available funds Thirty Two Million Seven Hundred Ten Thousand
Dollars ($32,710,000) in consideration of the York Bronze Common Stock Three
Million Four Hundred Thousand Dollars ($3,400,000) in consideration of the OMC
Common Stock (the "Purchase Price").
1.03 Stock Certificates; Corporate Records. York hereby delivers to Empire
certificates for the York Bronze Purchased Shares and the OMC Purchased Shares
duly issued and registered in the name of Empire or accompanied by stock
powers duly executed in blank, free and clear of all Liens. York shall also
deliver promptly after the date hereof the minute books, stock books,
financial records, customer lists and other corporate records of each of the
Subsidiaries.
ARTICLE II
Representations and Warranties of York
York represents and warrants to Empire and to Xxxxxxxx that the statements
contained in this Article II are correct and complete as of the date of the
Sub 1 Asset Transfer, the date of the closing of the transactions contemplated
by the Asset Purchase Agreement and also immediately prior to the execution
and effectiveness of this Agreement, except (i) as contemplated by the Asset
Purchase Agreement or any documents, disclosure schedules or transactions
related thereto or contemplated thereby, (ii) as may result from or may be
contemplated by the Sub 1 Asset Transfer or the Liquidation (as defined below)
of York Bronze or OMC, and (iii) that each of the representations, warranties
and statements in this Article II are qualified in their entirety by the
Disclosure Schedules and the information set forth or referred to therein.
Notwithstanding anything to the contrary in this Agreement, York makes no
representations nor any warranties respecting the completeness, legality,
effects or consequences of the Sub 1 Asset Transfer or the Liquidation of York
Bronze and OMC.
2.01 Organization and Authority. (a) York is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
York has full corporate power and authority to own and lease the property and
assets it now owns and leases and to carry on its business as and where such
property and assets are now owned or leased and such business is now
conducted. The copies of the certificate of incorporation and bylaws of York,
which have previously been delivered to Empire and/or to Xxxxxxxx, are
complete and correct and in either case have not been amended since March 31,
2001. York has the corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. There are no dissolution,
liquidation or bankruptcy proceedings pending, contemplated by or, to York's
knowledge, threatened against York.
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(b) York Bronze is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. York Bronze (i) has full
corporate power and authority to own and lease the property and assets it now
owns and leases and to carry on its business as and where such property and
assets are now owned or leased and such business is now conducted and (ii)
except as set forth on Schedule 2.01(b), has not owned and does not now own
directly or indirectly any debt or equity securities issued by any other
corporation, or any interest in any partnership, joint venture or other
business enterprise. Schedule 2.01(b) sets forth a true and complete list of
each jurisdiction in which York Bronze is qualified to do business as a
foreign corporation. The copies of the certificate of incorporation and
bylaws of York Bronze, which have previously been delivered to Empire and/or
to Xxxxxxxx, are complete and correct and in either case have not been amended
since March 31, 2001. There are no bankruptcy proceedings pending or, to
York's knowledge, threatened against York Bronze.
(c) OMC is a corporation duly organized, validly existing and in good standing
under the laws of the State of Texas. OMC (i) has full corporate power and
authority to own and lease the property and assets it now owns and leases and
to carry on its business as and where such property and assets are now owned
or leased and such business is now conducted and (ii) except as set forth on
Schedule 2.01(c), has not owned and does not now own directly or indirectly
any debt or equity securities issued by any other corporation, or any interest
in any partnership, joint venture or other business enterprise. Schedule
2.01(c) sets forth a true and complete list of each jurisdiction in which OMC
is qualified to do business as a foreign corporation. The copies of the
certificate of incorporation and bylaws of OMC, which have previously been
delivered to Empire and/or to Xxxxxxxx, are complete and correct and in either
case have not been amended since March 31, 2001. There are no bankruptcy
proceedings pending or, to York's knowledge, threatened against OMC.
(d) Sub 1 is a corporation duly organized and validly existing and in good
standing under the laws of the State of West Virginia. Sub 1 has full
corporate power and corporate authority to own and lease the property and
assets it now owns and leases and to carry on its business as and where such
property and assets are now owned or leased and such business is now
conducted. Except as set forth on Schedule 2.01(d), Sub 1 has not owned and
does not now own directly or indirectly any debt or equity securities issued
by any other corporation, or any interest in any partnership, joint venture or
other business enterprise. Schedule 2.01(d) sets forth a true and complete
list of each jurisdiction in which Sub 1 is qualified to do business as a
foreign corporation. The copies of the certificate of incorporation and
bylaws of Sub 1 which have previously been delivered to Empire and/or to
Xxxxxxxx, are complete and correct as of the date hereof. There are no
dissolution, liquidation or bankruptcy proceedings pending, contemplated by
or, to York's, York Bronze's or OMC's knowledge, threatened against Sub 1.
2.02 Due Authorization. The execution and delivery by York of this Agreement
and each of the other Transaction Documents to which it is a party, the
performance by it of all the terms and conditions hereof and thereof to be
performed by it and the consummation of the transactions contemplated hereby
and thereby, have been duly authorized and approved by all necessary corporate
proceedings on the part of York. No other corporate proceeding on the part of
York is necessary to approve and adopt this Agreement and each of the other
Transaction Documents to which it is a party and to consummate the
transactions contemplated hereby and thereby. This Agreement and each of the
other Transaction Documents to which it is a party has been duly and validly
executed and delivered by York and constitute the legal, valid and binding
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obligations of York enforceable against York in accordance with their
respective terms, subject to bankruptcy, insolvency or other similar laws of
general application affecting creditors' rights and general principles of
equity.
2.03 Capitalization; Shares. (a)(i) The entire authorized capital stock of
York Bronze consists of 10,000 shares of York Bronze Common Stock, of which
1,000 shares are issued and outstanding. Except as set forth on Schedule
2.03(a), all such outstanding shares of York Bronze Common Stock are validly
issued, fully paid, nonassessable and are owned beneficially and of record by
York, free and clear of all Liens. Except as set forth on Schedule 2.03(a),
(i) there are outstanding no securities, subscriptions, options, warrants,
phantom stock rights, calls or rights of any kind, or rights with respect to
convertible debt, issued or granted by, or binding upon, York or York Bronze
with respect to any shares of capital stock of York Bronze, and (ii) there are
no shareholder agreements or similar agreements with respect to York Bronze.
(ii) Except as set forth on Schedule 2.03(a), York has good and indefeasible
title to the York Bronze Purchased Shares and has the unrestricted right and
power to sell and transfer the York Bronze Purchased Shares to Empire in the
manner contemplated herein, free and clear of all Liens, and the transfer of
such York Bronze Purchased Shares by York to Empire will transfer to Empire
good and valid title to such York Bronze Purchased Shares free and clear of
all Liens. The York Bronze Purchased Shares represent 75.542725% of all
issued and outstanding capital stock of York Bronze.
(b)(i) The entire authorized capital stock of OMC consists of 75,000 shares of
OMC Common Stock, of which 1,000 shares are issued and outstanding. All such
outstanding shares of OMC Common Stock are validly issued, fully paid,
nonassessable and are owned beneficially and of record by York, free and clear
of all Liens, except as set forth on Schedule 2.03(b). Except as set forth on
Schedule 2.03(b), (i) there are outstanding no securities, subscriptions,
options, warrants, phantom stock rights, calls or rights of any kind, or
rights with respect to convertible debt, issued or granted by, or binding
upon, York or OMC with respect to any shares of capital stock of OMC, and (ii)
there are no shareholder agreements or similar agreements with respect to OMC.
(ii) Except as set forth on Schedule 2.03(b), York has good and indefeasible
title to the OMC Purchased Shares and has the unrestricted right and power to
sell and transfer all of its shares of the OMC Purchased Shares to Empire in
the manner contemplated herein, free and clear of all Liens, and the transfer
of such OMC Purchased Shares by York to Empire will transfer to Empire good
and valid title to such OMC Purchased Shares free and clear of all Liens. The
OMC Purchased Shares represent 75.555556% of the issued and outstanding
capital stock of OMC.
(c)(i) The entire authorized capital stock of Sub 1 consists of 10,000,000
shares of common stock, par value $1.00 per share (the "Sub 1 Common Stock")
of which 3,000,000 shares are issued and outstanding, and 50,000,000 shares of
Non-Qualified Series A Preferred Stock, par value $1.00 per share (the "Sub 1
Preferred Stock") of which 32,900,000 shares are issued and outstanding. The
Sub 1 Common Stock and the Sub 1 Preferred Stock are herein referred to
collectively as the "Sub 1 Stock." All such outstanding shares of Sub 1 Stock
are validly issued, fully paid, nonassessable and are owned beneficially and
of record by York Bronze and by OMC, free and clear of all Liens, except as
set forth on Schedule 2.03(c). Except as set forth on
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Schedule 2.03(c), (i) there are outstanding no securities, subscriptions,
options, warrants, phantom stock rights, calls or rights of any kind, or
rights with respect to convertible debt, issued or granted by, or binding upon
York Bronze, OMC or Sub 1 with respect to any shares of capital stock of Sub
1, and (ii) there are no shareholder agreements or similar agreements with
respect to Sub 1.
(ii) York Bronze and OMC have good and marketable title to the Sub 1 Stock and
have the unrestricted right and power to sell and transfer all of their shares
of the Sub 1 Stock, except as set forth on Schedule 2.03 (c).
2.04 Absence of Conflicts. Except as a result of the Sub 1 Asset Transfer or
as set forth on Schedule 2.04, neither the execution and delivery by York of
this Agreement and each of the other Transaction Documents to which it is a
party, the compliance by York with the terms and conditions hereof and
thereof, nor the consummation by York of the transactions contemplated hereby
or thereby will:
(a) conflict with any of the terms, conditions or provisions of the
certificate of incorporation or bylaws of York or of any of the Subsidiaries,
(b) violate any provision of, or require any consent, authorization or
approval under, any law or administrative regulation or any judicial,
administrative or arbitration order, award, judgment, writ, injunction or
decree applicable to, or any Permit issued to, or notice to or filing with any
Governmental Authority with respect to York or to any of the Subsidiaries,
(c) to York's knowledge, violate, conflict with, result in a breach of any
provision of or the loss of any benefit under, constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, result in the termination of or a right of termination or
cancellation under, accelerate the performance required by, or result in the
creation of any Lien upon any of the properties or assets of any of the
Subsidiaries under, or require any consent, authorization or approval under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, Lien or other agreement, instrument for borrowed money, any
guarantee of any agreement or instrument for borrowed money or any license,
lease or any other agreement or instrument to which York or any of the
Subsidiaries is a party, or by which it or any of its properties or assets may
be bound or affected,
(d) result in the creation of any Lien upon any of the properties or assets of
any of the Subsidiaries, or
(e) give to others any material rights or interests (including rights of
purchase, termination, cancellation or acceleration), under any such
indenture, mortgage, Lien, lease, agreement or instrument; except as would not
have a Material Adverse Effect.
2.05 Financial Information. York has heretofore furnished to Empire and/or to
Xxxxxxxx the financial statements and information with respect to each of the
Subsidiaries described on Schedule 2.05 (the "Financial Statements"). The
Financial Statements, in the context of their original use as part of the
financial statements of the consolidated group of which York is the parent,
and subject to such consolidated financial statements and the notes thereto as
included in York's applicable SEC filings under the Securities Exchange Act of
1934, as amended, complied as to form in all material respects with applicable
accounting requirements, were prepared in accordance with generally accepted
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accounting principles ("GAAP") consistently applied during the periods
involved and fairly present:
(a) the balance sheet of York Bronze and OMC as of March 31, 2001 and as of
December 31, 2000 and 1999; and
(b) the results of operations and changes in financial position of York Bronze
and OMC for the three-month period ending March 31, 2001 and for the fiscal
year ended December 31, 2000, and York Bronze for the fiscal year ended
December 31, 1999.
The books and records of each of the Subsidiaries from which the Financial
Statements were prepared properly and accurately reflect the transactions and
activities which they purport to record except as would not have a Material
Adverse Effect. Except as disclosed on Schedule 2.05 or as required by GAAP,
neither York nor any of the Subsidiaries has, since March 31, 2001, made any
change in the accounting practices or policies applied in the preparation of
the Financial Statements.
2.06 Absence of Material Changes. Except as set forth on Schedule 2.06 or the
Financial Statements, since December 31, 2000, there has not been:
(a) any Material Adverse Effect with respect to any of the Subsidiaries, or
any event, condition or state of facts which could be reasonably expected (i)
to have a Material Adverse Effect on the business, operations, properties or
assets of any of the Subsidiaries, or (ii) to impair the ability of York to
perform its obligations under this Agreement,
(b) any damage, destruction, condemnation or loss, whether covered by
insurance or not, which has had, or could reasonably be expected to have, a
Material Adverse Effect on the business, operations, properties or assets of
any of the Subsidiaries, or
(c) any material strikes or work stoppages against the operations of any of
the Subsidiaries relating to the conduct of its business or any injunction,
order, writ or decree of any Governmental Authority against such strikes or
work stoppages.
2.07 Title to Properties; Liens.
(a) Real Property. (i) Schedule 2.07(a)(i) identifies all interests of York
Bronze in fee, in leaseholds under leases, and in easements, licenses and
other interests in real property owned by York Bronze (the "York Bronze Real
Property"). Except for the York Bronze Real Property, no other real property
is owned by York Bronze. Schedule 2.07(a)(i) identifies, and York has
heretofore made available to Empire and/or to Xxxxxxxx true and complete
copies of, all deeds, leases or other instruments, in each case as in effect
on the date hereof (the "York Bronze Real Property Instruments"), which
evidence the interests of York Bronze in the York Bronze Real Property.
Except as set forth in Schedule 2.07(a)(i), all of such deeds, leases and
other instruments are in full force and effect, and there is no default, nor
any event which with notice or the lapse of time or both could become a
default, under any such deeds, leases or other instruments, by York Bronze or
any other party thereto except as would not have a Material Adverse Effect.
Except as set forth in Schedule 2.07(a)(i), York Bronze has good title to the
York Bronze Real Property, free and clear of any and all Liens other than
Permitted Liens, and no consent, waiver, approval or authorization is required
under any of the York Bronze Real Property Instruments as a result of the
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execution of this Agreement or the consummation of the transactions
contemplated hereby.
(ii) Schedule 2.07(a)(ii) identifies all interests of OMC in fee, in
leaseholds under leases, and in easements, licenses and other interests in
real property owned by OMC (the "OMC Real Property"). Except for the OMC Real
Property, no other real property is owned by OMC. Schedule 2.07(a)(ii)
identifies, and York has heretofore made available to Empire and/or to
Xxxxxxxx true and complete copies of, all deeds, leases or other instruments,
in each case as in effect on the date hereof (the "OMC Real Property
Instruments"), which evidence the interests of OMC in the OMC Real Property.
Except as set forth in Schedule 2.07(a)(ii), all of such deeds, leases and
other instruments are in full force and effect, and there is no default, nor
any event which with notice or the lapse of time or both could become a
default, under any such deeds, leases or other instruments, by OMC or any
other party thereto except as would not have a Material Adverse Effect.
Except as set forth in Schedule 2.07(a)(ii), OMC has good title to the OMC
Real Property, free and clear of any and all Liens other than Permitted Liens
and no consent, waiver, approval or authorization is required under any of the
OMC Real Property Instruments as a result of the execution of this Agreement
or the consummation of the transactions contemplated hereby, each except as
would not have a Material Adverse Effect.
(iii) Schedule 2.07(a)(iii) identifies all interests of Sub 1 in fee, in
leaseholds under leases, including such easements, licenses and other
interests in real property owned by Sub 1 (the "Sub 1 Real Property"). Except
for the Sub 1 Real Property, no other real property is owned by Sub 1.
Schedule 2.07(a)(iii) identifies, and York has heretofore made available to
Empire and/or to Xxxxxxxx true and complete copies of, all deeds, leases or
other instruments, in each case as in effect on the date hereof (the "Sub 1
Real Property Instruments"), which evidence the interests of Sub 1 in the Sub
1 Real Property. Except as set forth in Schedule 2.07(a)(iii), all of such
deeds, leases and other instruments are in full force and effect, and there is
no default, nor any event which with notice or the lapse of time or both could
become a default, under any such deeds, leases or other instruments, by Sub 1
or any other party thereto except as would not have a Material Adverse Effect.
Except as set forth in Schedule 2.07(a)(iii), Sub 1 has good title to the Sub
1 Real Property, free and clear of any and all Liens other than Permitted
Liens and no consent, waiver, approval or authorization is required under any
of the Sub 1 Real Property Instruments as a result of the execution of this
Agreement or the consummation of the transactions contemplated hereby, each
except as would not have a Material Adverse Effect.
(iv) Notwithstanding the foregoing provisions, representations and warranties
of this Section 2.07, interests in fee, in leaseholds under leases, and in
easements, licenses and other interests in real property that are disclosed in
this Agreement or the Disclosure Schedules as York Bronze Real Property, OMC
Real Property or Sub 1 Real Property may be titled to or held or owned by any
of the Subsidiaries.
(b) Buildings and Equipment. Schedule 2.07(b) hereto identifies separately:
(i) all machinery and equipment owned or leased by York Bronze as lessee
having a current replacement cost in excess of $50,000 and the location
thereof (the "York Bronze Equipment"),
(ii) all machinery and equipment owned or leased by OMC as lessee having a
current replacement cost in excess of $50,000 and the location thereof (the
"OMC Equipment"),
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(iii) all machinery and equipment owned or leased by Sub 1 as lessee having a
current replacement cost in excess of $50,000 and the location thereof (the
"Sub 1 Equipment'),
(iv) all leases and other instruments which evidence the interests of York
Bronze in the York Bronze Equipment and any other equipment leases under which
York Bronze is lessee and which provide for aggregate rental payments after
May 1, 2001 in excess of $50,000 (the "York Bronze Equipment Instruments"),
(v) all leases and other instruments which evidence the interests of OMC in
the OMC Equipment and any other equipment leases under which OMC is lessee and
which provide for aggregate rental payments after May 1, 2001 in excess of
$50,000 (the "OMC Equipment Instruments"),
(vi) all leases and other instruments which evidence the interest of Sub 1 in
the Sub 1 Equipment and any other equipment leases under which Sub 1 is lessee
and which provide for the aggregate rental payments after May 1, 2001 in
excess of $50,000 (the "Sub 1 Equipment Instruments"); and
(vii) any other equipment used primarily in the business of the Subsidiaries,
but not owned or leased by the Subsidiaries.
York has, to its knowledge, heretofore delivered to Empire and/or to Xxxxxxxx
true and complete copies of all York Bronze Equipment Instruments, OMC
Equipment Instruments and Sub 1 Equipment Instruments, in each case as in
effect on the date hereof. Except as set forth in Schedule 2.07(b), all such
Equipment Instruments are in full force and effect and there is no default,
nor any event which with notice or the lapse of time or both will become a
default, under any such Equipment Instruments, by York Bronze, OMC or Sub 1
(as the case may be) or by any other party thereto except as would not have a
Material Adverse Effect. Except as set forth in Schedule 2.07(b), (A) York
Bronze has good title to the York Bronze Equipment it owns, free and clear of
any and all Liens other than Permitted Liens, and no consent, waiver, approval
or authorization is required under any of the York Bronze Equipment
Instruments as a result of the execution of this Agreement or the consummation
of the transactions contemplated hereby except as would not have a Material
Adverse Effect, (B) OMC has good title to the OMC Equipment it owns, free and
clear of any and all Liens other than Permitted Liens, and no consent, waiver,
approval or authorization is required under any of the OMC Equipment
Instruments as a result of the execution of this Agreement or the consummation
of the transactions contemplated hereby except as would not have a Material
Adverse Effect and (C) Sub 1 has good title to the Sub 1 Equipment it owns,
free and clear of all Liens other than Permitted Liens. None of the buildings
and plants, and none of the York Bronze Equipment, the OMC Equipment nor the
Sub 1 Equipment, encroaches on the property of others, except as would not
have a Material Adverse Effect.
(c) Other Assets. Except as set forth in Schedule 2.07(c), all other
properties and assets of the Subsidiaries are owned by one or more of the
Subsidiaries, free and clear of any and all Liens other than Permitted Liens.
2.08 Material Contracts and Agreements. Schedule 2.08 identifies the
following categories of material contracts, commitments and agreements of the
Subsidiaries not otherwise identified in any other Schedule:
(a) contracts with any current officer or director of York or of any of the
Subsidiaries;
12
(b) contracts for the sale of any of the business, operations, properties or
assets of any of the Subsidiaries, other than in the ordinary course of
business, or for the grant to any Person of any preferential rights to
purchase any of the business, operations, properties or assets of any of the
Subsidiaries, other than inventory in the ordinary course of business;
(c) contracts containing covenants of any of the Subsidiaries not to compete
in any line of business or with any Person in any geographical area or
covenants of any other Person not to compete with any of the Subsidiaries in
any line of business or in any geographical area;
(d) all other agreements, contracts or instruments for any of the Subsidiaries
which, (i) involve purchases after the date hereof of more than $50,000 from
any one seller or group of related sellers, or (ii) involve sales or leases
after the date hereof of more than $50,000 to any one buyer or lessee or group
of related buyer or lessees,
(e) all other agreements contracts or instruments which are contracts,
commitments or agreements or involve transactions with any Affiliate or
subsidiary of York other than any of the Subsidiaries, or
(f) all agreements, contracts, commitments or instruments otherwise material
to the business, operations, properties or assets of any of the Subsidiaries.
The contracts, commitments and agreements listed on Schedule 2.08 are
hereinafter called the "Contracts." York has heretofore made available to
Empire and/or to Xxxxxxxx true and complete copies of all Contracts as in
effect on the date hereof. Except as set forth in Schedule 2.08 or except as
would not have a Material Adverse Effect, all Contracts are in full force and
effect (other than those which have been duly performed), and are the legal,
valid and binding obligations of the respective Subsidiary, enforceable
against such Subsidiary in accordance with their respective terms. Except as
set forth on Schedule 2.08, there is no default, nor any event which with
notice or the lapse of time or both will become a default, under any of the
Contracts, by the respective Subsidiary or any other party thereto, and no
consent, waiver, approval or authorization is required under any of the
Contracts as a result of the execution of this Agreement or the consummation
of the transactions contemplated hereby except as would not have a Material
Adverse Effect.
2.09 Employment Agreements. Schedule 2.09 identifies:
(a) each management or employment contract or contract for personal services
with any officer, consultant, salesman or other non-union employee or agent of
any of the Subsidiaries which is not by its terms terminable at will or on
less than 30 days' notice without penalty,
(b) each officer, consultant, salesman or other non-union employee or agent of
any of the Subsidiaries receiving as at the date hereof compensation
(including bonuses and commissions, if any) at an annual rate of $60,000 or
more, specifying the rate of such compensation (including such bonuses and
commissions) and the positions held by such persons, and
(c) each collective bargaining agreement or other agreement covering unionized
or hourly employees to which any of the Subsidiaries is a party or which
covers employees of any of the Subsidiaries.
13
The contracts and agreements identified on Schedule 2.09 are hereinafter
called the "Employment Contracts." York has heretofore made available to
Empire and/or to Xxxxxxxx true and complete copies of each of the Employment
Contracts as in effect on the date hereof. Except as set forth in Schedule
2.09, all Contracts are in full force and effect (other than those which have
been duly performed), and are the legal, valid and binding obligations of the
respective Subsidiary, enforceable against such Subsidiary in accordance with
their respective terms. Except as listed on Schedule 2.09, there are no
material disputes presently subject to any grievance procedure, arbitration or
litigation under the Employment Contracts nor is there any material default,
or any event which with notice or the lapse of time or both will become a
material default, under the Employment Contracts, by the respective Subsidiary
or, to the knowledge of York, by any other party thereto. Other than as
listed on Schedule 2.09, none of the Subsidiaries is a party to any oral or
written agreement or plan, including any employment agreement, severance
agreement, retention agreement, stock option plan, stock appreciation rights
plan, restricted stock plan or stock purchase plan, any of the benefits of
which will be increased, the vesting of the benefits of which will be
accelerated, or which will become payable or which at the participant's or
holder's option may become payable, due to or by the occurrence of any of the
transactions contemplated by this Agreement or the value of any of the
benefits of which will, or may be the option of the holder or participant, be
calculated on the basis of any of the transactions contemplated by this
Agreement.
Except as disclosed on Schedule 2.09, none of the Subsidiaries is a party to
any collective bargaining agreement or other labor agreement with any union or
labor organization and no union or labor organization has been recognized by
any of the Subsidiaries as an exclusive bargaining representative for
employees of such Subsidiary. None of the Subsidiaries is the subject of any
material proceeding asserting that it has committed an unfair labor practice
or is seeking to compel it to bargain with any labor union or labor
organization, nor is there pending or threatened, nor has there been for the
past three years, any labor strike, dispute, walkout, work stoppage, slow-down
or lockout involving any of the Subsidiaries, except in each case as would
not, individually or in the aggregate, have a Material Adverse Effect .
2.10 Employee Benefit Plans. (a) Schedule 2.10 contains a list of each
Employee Benefit Plan covering employees of the Subsidiaries. With respect to
each such Plan, York has made available to Empire and/or to Xxxxxxxx a true
and correct copy of (i) the most recent annual report (Form 5500) filed with
the IRS, (ii) such Employee Benefit Plan and all amendments thereto, (iii)
each trust agreement, insurance contract or administration agreement relating
to such Employee Benefit Plan, (iv) the most recent summary plan description
for each Employee Benefit Plan for which a summary plan description is
required, (v) the most recent actuarial report or valuation relating to an
Employee Benefit Plan subject to Title IV of ERISA, (vi) the most recent
determination letter, if any, issued by the IRS with respect to any Employee
Benefit Plan intended to be qualified under section 401(a) of the Code, (vii)
any request for a determination currently pending before the IRS, (viii) all
correspondence with the IRS, the Department of Labor or the PBGC relating to
any outstanding controversy, and (ix) all related trust agreements, insurance
contracts or other funding agreements which implement each such Employee
Benefit Plan. Each Employee Benefit Plan complies with ERISA, the Code and
all other applicable statutes and governmental rules and regulations except to
the extent that noncompliance would not have a Material Adverse Effect on the
Subsidiaries. Except as set forth in Schedule 2.10, (i) no "reportable event"
(within the meaning of Section 4043 of ERISA) has occurred within the past
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three years with respect to any Employee Benefit Plan which could result in a
material liability to any of the Subsidiaries, (ii) none of the Subsidiaries
nor any of their respective ERISA Affiliates has withdrawn from any
Multiemployer Plan at any time or instituted, or is currently considering
taking, any action to do so, and (iii) no action has been taken, or is
currently being considered, to terminate any Employee Benefit Plan subject to
Title IV of ERISA.
(b) There has been no failure to make any contribution or pay any amount due
to any Employee Benefit Plan as required by Section 412 of the Code, Section
302 of ERISA, or the terms of any such Plan, and no Employee Benefit Plan, nor
any trust created thereunder, has incurred any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not waived.
(c) With respect to Employee Benefit Plans, no event has occurred and there
exists no condition or set of circumstances in connection with which any of
the Subsidiaries would be subject, under the terms of such Employee Benefit
Plans, ERISA, the Code or any other applicable law, to any liability that
would have a Material Adverse Effect on the Subsidiaries. Except as set forth
on Schedule 2.10, all Employee Benefit Plans that are intended to be qualified
under Section 401(a) of the Code have been determined by the IRS to be so
qualified, or a timely application for such determination is now pending or
will be filed on a timely basis. None of the Subsidiaries nor any of their
respective ERISA Affiliates has been notified by any Multiemployer Plan that
such Multiemployer Plan is currently in reorganization or insolvency under and
within the meaning of Section 4241 or 4245 of ERISA or that such Multiemployer
Plan intends to terminate or has been terminated under Section 4041A of ERISA.
Neither the termination of any Multiemployer Plan nor the complete or partial
withdrawal by any of the Subsidiaries or any of their respective ERISA
Affiliates from any Multiemployer Plan would result in any material liability
to any of the Subsidiaries or to any of their respective ERISA Affiliates.
Except as set forth on Schedule 2.10, none of the Subsidiaries has any
liability or obligation under any welfare plan to provide life insurance or
medical benefits after termination of employment to any employee or dependent
other than as required by Part 6 of Title 1 of ERISA.
(d) As used in this Agreement, (i) "Employee Benefit Plan" means a "pension
plan" (as defined in Section 3(2) of ERISA (other than a Multiemployer Plan
)), a "welfare plan" (as defined in Section 3(1) of ERISA), or any material
bonus, profit sharing, deferred compensation, incentive compensation, stock
ownership, stock purchase, stock option, phantom stock, vacation, severance,
death benefit, insurance or other plan, arrangement or understanding, in each
case established or maintained or contributed to by any of the Subsidiaries or
any of their respective ERISA Affiliates or as to which any of the
Subsidiaries or any of their respective ERISA Affiliates or otherwise may have
any liability, whether or not covered by ERISA), (ii) "Multiemployer Plan"
means a "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) to
which any of the Subsidiaries or any of their respective ERISA Affiliates is
or has been obligated to contribute or otherwise may have any liability, and
(iii) with respect to any person, "ERISA Affiliate" means any corporation or
trade or business (whether or not incorporated) which is under common control,
or otherwise would be considered a single employer with such person pursuant
to Section 414(b), (c), (m) or (o) of the Code and the regulations promulgated
thereunder or pursuant to Section 4001(b) of ERISA and the regulations
promulgated thereunder.
15
(e) Schedule 2.10 contains a list of all (i) severance and employment
agreements with officers of each of the Subsidiaries, (ii) severance programs
and policies of each of the Subsidiaries with or relating to its employees and
(iii) plans, programs, agreements and other arrangements of each of the
Subsidiaries with or relating to its employees which contain change of control
or similar provisions, in each case involving a severance or employment
agreement or arrangement with an individual officer or employee, only to the
extent such agreement or arrangement provides for minimum annual payments in
excess of $50,000. York has provided to Empire and/or to Xxxxxxxx a true and
complete copy of each of the foregoing.
(f) Except as otherwise set forth on Schedule 2.10, the consummation of the
transactions contemplated by this Agreement will not accelerate the time of
payment or vesting under any Employee Benefit Plan of the Subsidiaries nor
obligate any of the Subsidiaries or Empire to provide any current or former
officer, director or employee of York or any of the Subsidiaries with
severance pay, unemployment compensation or similar payment.
2.11 Patents, Trademarks, Copyrights, Licenses and Secrecy Agreements. (a)
For the purposes of this Agreement, the following terms have the following
definitions:
"Intellectual Property" shall mean any or all of the following and all
worldwide common law and statutory rights in, arising out of, or associated
therewith that are used in the ordinary course of the business of York or a
Subsidiary or incorporated into current Subsidiary Products: (i) patents and
applications therefor and all reissues, divisions, renewals, extensions,
provisionals, continuations and continuations-in-part thereof ("Patents");
(ii) inventions (whether patentable or not), invention disclosures,
improvements, trade secrets, proprietary information, know how, technology,
technical data and customer lists, and all documentation relating to any of
the foregoing; (iii) copyrights, copyrights registrations and applications
therefor, and all other rights corresponding thereto throughout the world;
(iv) domain names, uniform resource locators ("URLs") and other names and
locators associated with the Internet (collectively, "Domain Names"); (v)
industrial designs and any registrations and applications therefor; (vi) trade
names, logos, common law trademarks and service marks, trademark and service
xxxx registrations and applications therefor (collectively, "Trademarks");
(vii) all databases and data collections and all rights therein; (viii) all
moral and economic rights of authors and inventors, however denominated, and
(ix) any similar or equivalent rights to any of the foregoing (as applicable).
"York Bronze Intellectual Property" shall mean any Intellectual Property that
is owned by, or exclusively licensed to, York Bronze. "OMC Intellectual
Property" shall mean any Intellectual Property that is owned by, or
exclusively licensed to, OMC. "Sub 1 Intellectual Property" shall mean any
Intellectual Property that is owned by, or exclusively licensed to, Sub 1.
"Subsidiary Intellectual Property" shall mean, collectively, the York Bronze
Intellectual Property, the OMC Intellectual Property and the Sub 1
Intellectual Property.
"Registered Intellectual Property" means all Intellectual Property that is the
subject of an application, certificate, filing, registration or other document
in the name of York or a Subsidiary issued, filed with, or recorded by any
private, state, government or other legal authority. "York Bronze Registered
Intellectual Property" shall mean all of the Registered Intellectual Property
owned by, or filed in the name of, York Bronze. "OMC Registered Intellectual
Property" shall mean all of the Registered Intellectual Property owned by, or
filed in the name of, OMC. "Sub 1 Registered Intellectual Property" shall
16
mean all of the Registered Intellectual Property owned by, or filed in the
name of, Sub 1. "Subsidiary Registered Intellectual Property" shall mean,
collectively, the York Bronze Registered Intellectual Property, the OMC
Registered Intellectual Property and the Sub 1 Registered Intellectual
Property.
"York Bronze Products" means all current versions of products or service
offerings of York Bronze. "OMC Products" means all current versions of
products or service offerings of OMC. "Sub 1 Products" means all current
versions of products or service offerings of Sub 1. "Subsidiary Products"
means, collectively, the York Bronze Products, the OMC Products and the Sub 1
Products.
Except as disclosed in Schedule 2.11 or except as would not have a Material
Adverse Effect, no Subsidiary Intellectual Property or Subsidiary Product is
subject to any proceeding or outstanding decree, order, judgment, contract,
license, agreement or stipulation restricting in any manner the use, transfer
or licensing thereof by any of the Subsidiaries, or which may affect the
validity, use or enforceability of such Subsidiary Intellectual Property or
Subsidiary Product.
Each item of Subsidiary Registered Intellectual Property, to York's knowledge,
is valid and subsisting as provided by law, all necessary registration,
maintenance and renewal fees currently due in connection with such Subsidiary
Registered Intellectual Property have been made an all necessary documents,
recordations and certificates in connection with such Subsidiary Registered
Intellectual Property have been filed with the relevant patent, copyright,
trademark or other authorities in the United States for the purposes of
maintaining such Subsidiary Registered Intellectual Property, except as would
not have a Material Adverse Effect.
(b) Except as disclosed on Schedule 2.11, York Bronze or another Subsidiary
owns and has good title to, each material item of York Bronze Intellectual
Property, free and clear of any Lien (excluding non-exclusive licenses and
related restrictions granted in the ordinary course); and York Bronze or
another Subsidiary is the owner or licensee of all Trademarks contained in the
York Bronze Intellectual Property. Without limiting the foregoing, (i) York
Bronze or another Subsidiary owns or is the licensee of all copyrighted works
that are York Bronze Products or which York Bronze otherwise purports to own
and (ii) except as, individually or in the aggregate, could not reasonable be
expected to have a Material Adverse Effect, to the knowledge of York, Patents
held by third parties, excluding the Subsidiaries, would not be infringed by
any York Bronze Products.
(c) Except as further disclosed on Schedule 2.11, OMC or another Subsidiary
owns and has good title to, each material item of OMC Intellectual Property,
free and clear of any Lien (excluding non-exclusive licenses and related
restrictions granted in the ordinary course); and OMC or another Subsidiary is
the owner or licensee of all Trademarks contained in the OMC Intellectual
Property. Without limiting the foregoing, (i) OMC or another Subsidiary owns
or is the licensee of all copyrighted works that are OMC Products or which OMC
otherwise purports to own and (ii) except as, individually or in the
aggregate, could not reasonable be expected to have a Material Adverse Effect,
to the knowledge of York, Patents held by third parties, excluding the
Subsidiaries, would not be infringed by any OMC Products.
17
(d) Except as further disclosed on Schedule 2.11, Sub 1 or another Subsidiary
owns and has good title to, each material item of Sub 1 Intellectual Property,
free and clear of any Lien (excluding non-exclusive licenses and related
restrictions granted in the ordinary course); and Sub 1 or another Subsidiary
is the owner of all Trademarks contained in the Sub 1 Intellectual Property.
Without limiting the foregoing (i) Sub 1 or another Subsidiary owns or is the
licensee of all copyrighted works that are Sub 1 Products or which Sub 1
otherwise purports to own and (ii) except as, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
to the knowledge of York, Patents held by third parties, excluding the
Subsidiaries, would not be infringed by any Sub 1 Products.
(e) Except as disclosed on Schedule 2.11 or except as would not have a
Material Adverse Effect, to the extent that any technology, software or
Intellectual Property has been developed or created independently or jointly
by a third party for any of the Subsidiaries or is incorporated into any of
the Subsidiary Products, a Subsidiary has a written agreement with such third
party with respect thereto and has thereby either (i) obtained ownership of or
(ii) obtained a perpetual, non-terminable license (sufficient for the conduct
of its business as currently conducted and as proposed to be conducted) to all
such third party's Intellectual Property in such technology, software or
Intellectual Property by operation of law, by valid assignment or by license.
(f) To the knowledge of York, none of the Subsidiaries has transferred
ownership of, or granted any exclusive license with respect to, any
Intellectual Property that is Subsidiary Intellectual Property, to any third
party, or knowingly permitted the Subsidiaries' collective rights in such
Subsidiary Intellectual Property to lapse or enter the public domain.
(g) Schedule 2.11 lists all contracts, licenses and agreements to which any of
the Subsidiaries is a party and that remain in effect: (i) with respect to
Subsidiary Intellectual Property licenses or transferred to any third party
resulting in, or which may result in, annual payments of U.S. $20,000 or more
to any of the Subsidiaries, or (ii) pursuant to which a third party has
licensed or transferred any Intellectual Property to any of the Subsidiaries,
except with respect to generally available commercial Intellectual Property.
(h) To the knowledge of York, the operation of each Subsidiary's business as
such business currently is conducted, including (i) such Subsidiary's design,
development, manufacture, distribution, reproduction, marketing or sale of the
products or services of its business (including Subsidiary Products), and (ii)
such Subsidiary's use of any product device or process, has not infringed or
misappropriated the Intellectual Property of any third party.
(i) None of the Subsidiaries have received written notice from any third party
that the operation of its business or any act, product or service of such
Subsidiary infringes or misappropriates the Intellectual Property of any third
party or constitutes unfair competition or trade practices under the laws of
any jurisdiction, except as disclosed on Schedule 2.11.
(j) To the knowledge of York, no Person has infringed or is infringing or
misappropriating any Subsidiary Intellectual Property.
18
2.12 Trade Secrets. Subject to the license and secrecy agreements listed on
Schedule 2.12 hereto, the Subsidiaries collectively have the right to use,
free and clear of any claims of others (pending or, to the knowledge of York,
threatened) except the other Subsidiaries, all trade secrets, customer lists
and technical information being used in their businesses to the extent and on
the products on which, or in respect of which, such items are being used.
2.13 Governmental Licenses and Permits; Consents. (a) Except as disclosed in
Disclosure Schedules, each Subsidiary (except no representation is made as to
Sub 1) is in possession of all franchises, grants, authorizations, licenses,
permits, charters, easements, variances, exceptions, consents, certificates,
approvals and orders of any Governmental Authority (collectively, "Permits")
necessary for such Subsidiary to own, lease and operate its properties or to
carry on its business except as would not have a Material Adverse Effect (the
"Subsidiary Permits"), and no suspension or cancellation of any of the
Subsidiary Permits is pending or, to the knowledge of York, threatened except
as would not have a Material Adverse Effect.
(b) No consents or approvals or filings or registrations with any
Governmental Authority, or under any third party contract, are required to be
made by York or by any of the Subsidiaries or obtained by York or by any of
the Subsidiaries in connection with (i) the execution and delivery by York of
this Agreement and the other Transaction Documents, and (ii) the consummation
by York of the transactions contemplated by this Agreement.
2.14 Indebtedness and Commitments. Schedule 2.14 hereto identifies each
indenture, mortgage, promissory note, or other instrument for borrowed money
under which any of the Subsidiaries has outstanding any indebtedness, guaranty
or liability for borrowed money or the deferred purchase price of property or
has the right or obligation to incur any such indebtedness, guaranty or
liability in each case in excess of $50,000 (the "Debt Instruments"). York
has heretofore made available to Empire and/or to Xxxxxxxx true and complete
copies of each of the Debt Instruments as in effect on the date hereof.
Except as set forth in Schedule 2.14 and except as would not have a Material
Adverse Effect, there is no event of default or condition or event which, with
the giving of notice or the lapse of time or both, could become an event of
default under any of the Debt Instruments.
2.15 Taxes. Except as set forth in Schedule 2.15 hereto:
(a) York and each of the Subsidiaries has prepared and executed and duly filed
when due all United States Federal, state and other Tax Returns required to be
filed by applicable laws and regulations and have duly and timely paid all
Taxes or installments thereof that are due with respect to such Tax Returns;
(b) there are no Liens with respect to Taxes upon any of the assets of any of
the Subsidiaries, other than Liens with respect to Taxes that are not yet due
or remain payable without penalty or are being contested in good faith and by
appropriate proceedings;
(c) there are no agreements, waivers or arrangements by York or by any of the
Subsidiaries for the extension of the time for the assessment of any amounts
of Tax, and no power of attorney granted by York or by any of the Subsidiaries
with respect to any Taxes is currently in effect. No closing agreement under
Section 7121 of the Code or any similar provision of any state or local law
has been entered into by or with respect to any of the Subsidiaries;
19
(d) all United States Federal, state and local income Tax Returns of York and
each of the Subsidiaries for each year to and including the year ended
December 31, 1996 have been examined by or accepted as filed with the relevant
Tax authorities and any asserted deficiencies settled and paid;
(e) there have been no deficiencies proposed as a result of the examination of
any United Stated Federal, state or other Tax Returns filed by York or by any
of the Subsidiaries. No audit or other proceeding by any Governmental
Authority is pending or, to the knowledge of York, threatened with respect to
any Taxes due from or with respect to York or any of the Subsidiaries or any
Tax Return filed by or with respect to York or any of the Subsidiaries, and no
assessment of Tax, has been proposed and delivered in writing against York or
any of the Subsidiaries or any of their respective assets;
(f) Neither York nor any of the Subsidiaries has filed or consented to the
filing of any United States Federal or state consolidated income Tax Return
with any other Person (other than a group the common parent of which was York)
during the three (3) years immediately preceding the date hereof;
(g) Neither York nor any of the Subsidiaries has any liability or potential
liability with respect to any consolidated Tax Return filed or to be filed by
any Person (other than a group the common parent of which is York);
(h) Neither York nor any of the Subsidiaries has consented to the application
to it of Section 341(f)(2) of the Code; and
(i) Each Subsidiary has duly and timely withheld from employee salaries,
wages, and other compensation and paid over to the appropriate Taxing
authorities all amounts required to be so withheld and paid over for all
periods under all applicable laws.
2.16 Insurance. York has made available to Empire and/or to Xxxxxxxx
complete and correct copies of all insurance policies insuring the
Subsidiaries as in effect on the date hereof. York or each Subsidiary has in
effect insurance coverage for the Subsidiaries with reputable insurer, which
in respect of amounts, premiums, types and risks insured, constitutes
reasonably adequate coverage against all risks customarily insured against by
companies of comparable size and with similar operations.
2.17 Litigation and Claims. Except as set forth in Schedule 2.17:
(a) There are no actions, suits or proceedings pending or threatened against
York or any of the Subsidiaries or any of their respective directors, officers
or employees, the business, operations, properties or assets of any of the
Subsidiaries or any Employee Benefit Plan relating to the transactions
contemplated by this Agreement, or which could reasonably be expected, if
adversely determined, to delay, prevent or hinder the consummation of the
transactions contemplated by this Agreement,
(b) Neither York nor any of the Subsidiaries or any of their respective
directors, officers or employees has been charged with violating or threatened
in writing with a charge of violating, any provision of any United States
Federal, state, local or foreign law or administrative ruling or regulation,
and
(c) neither York nor any of the Subsidiaries has received any currently
effective notice of any default, nor to York's knowledge is in default, under
any order, writ, injunction, decree or Permit of any Governmental Authority.
20
Except as set forth in Schedule 2.17 or elsewhere on the Disclosure Schedules,
to York's knowledge there is no investigation of the business, operations,
properties or assets of any of the Subsidiaries being conducted by any
Governmental Authority.
2.18 Compliance with Laws. Except as would not have a Material Adverse
Effect or except as set forth in Schedule 2.18, to York's knowledge each
Subsidiary (i) is in compliance with all laws, regulations, orders, judgments
or decrees of any Governmental Authority, provided that no representation is
made as to Environmental Laws, and (ii) has made and is current with respect
to all filings, reports, certificates, returns and other documentation and
writings required to be furnished at any time or from time to time to any
Governmental Authority, and all such materials so furnished were true, correct
and complete, all amounts shown as due thereon have been paid in full or
appropriately reserved for and based on the affairs, revenues, enrollment or
other applicable measure of operations or assets during the period in
question, each such filing, report, certificate, return or other document or
writing correctly stated and reported the amount due.
2.19 Environmental and Occupational Safety Matters. With respect to all
applicable federal, state, local, regional and foreign laws, rules and
regulations, orders, decrees, common law, judgments, permits and licenses
relating to public and worker health and safety (collectively, "Worker Safety
Laws") and relating to the protection, regulation and clean-up of the indoor
and outdoor environment, including, without limitation, those relating to the
generation, handling, disposal, transportation or release of hazardous or
toxic materials, substances, wastes, pollutants and contaminants including,
without limitation, asbestos, petroleum, radon and polychlorinated biphenyls
(collectively, "Environmental Laws") York has in good faith made reasonable
efforts to disclose on Schedule 2.19 and during due diligence any matter
which, to York's knowledge, could have a Material Adverse Effect, but
otherwise makes no statements, representations or warranties and Empire and
Xxxxxxxx take the Purchased Stock, the Subsidiaries and their assets and
liabilities "AS IS, WHERE IS" AND "WITH ALL FAULTS" with respect to such
Environmental Laws and Worker Safety Laws.
2.20 Brokers' Fees. York has not incurred any liability for brokerage fees,
finder's fees, agent's commissions or other similar forms of compensation in
connection with this Agreement or any transaction contemplated hereby for
which any of the Subsidiaries, Empire or Xxxxxxxx will be responsible.
2.21 Contingencies. Except for:
(a) liabilities which are disclosed and fully provided for in the most recent
balance sheet referred to in Section 2.05,
(b) liabilities incurred in the usual and ordinary course of business of the
Subsidiaries subsequent to the date of such balance sheet and on or prior to
the Closing Date,
(c) liabilities disclosed in Schedule 2.21 to this Agreement, and
(d) liabilities relating to Environmental Laws,
none of the Subsidiaries has any material liabilities or obligations (absolute
or contingent, known or unknown, asserted or unasserted), including without
limitation contingent liability for the performance of any obligation by any
other Person.
21
2.22 Condition of Tangible Assets. To the knowledge of York, no tangible
assets of the Subsidiaries which are material to the operations of the
Subsidiaries are reasonably likely to be unavailable for use (except to the
extent scheduled to be repaired or replaced) in the ordinary course of
business during the next three months succeeding the date of this Agreement
or except as would not have a Material Adverse Effect. Subject to the
previous sentence and the representations and warranties set forth elsewhere
in this Agreement, the assets of each of the Subsidiaries shall be accepted by
Empire and Xxxxxxxx in its "AS IS" "WHERE IS" AND "WITH ALL FAULTS" condition,
with any and all faults, defects and conditions, without representation or
warranty of any kind, express, implied, statutory or otherwise, including,
without limitation, any warranty as to habitability, suitability,
merchantability, condition or fitness, fitness for a particular purpose or
fitness for any purpose.
2.23 Inventory. The inventory of each of the Subsidiaries is taken and shall
be accepted by Empire and Xxxxxxxx in its "AS IS" "WHERE IS" AND "WITH ALL
FAULTS" condition, with any and all faults, defects and conditions, without
representation or warranty of any kind, express, implied, statutory or
otherwise, including, without limitation, any warranty as to habitability,
suitability, merchantability, condition or fitness, fitness for a particular
purpose or fitness for any purpose.
2.24 Books and Records. Except as would not have a Material Adverse Effect,
the minute books and other similar records of each of the Subsidiaries contain
a true and complete record of all actions taken at all meetings and by all
written consents in lieu of meetings of such Subsidiary's stockholders, boards
of directors, and committees thereof. Such books and records have been
maintained in accordance with good business and bookkeeping practices.
2.25 Warranties. The accrual for warranty related expenses as of December
31, 2000 reported in York's audited financial statements for the year ended
December 31, 2000, adequately reflects an amount required for satisfaction of
warranty claims due in respect of goods sold or services provided by each
Subsidiary prior to such date, except as would not have Material Adverse
Effect. Such provision has been established in accordance with GAAP, except
as would not have Material Adverse Effect. No Subsidiary has agreed to
provide any express product or service warranties other than standard
warranties, the terms of which York has made available to Empire and/or to
Xxxxxxxx and identified as such Subsidiary's standard warranties.
2.26 Restrictions on Business Activities. There is no agreement, commitment,
judgment, injunction, order or decree binding upon any of the Subsidiaries or
to which any of the Subsidiaries is a party which has or could reasonably be
expected to have the effect of prohibiting or materially impairing any
business practice of such Subsidiary, any acquisition or transfer of property
by York or by such Subsidiary or the conduct of business by such Subsidiary,
as currently conducted.
ARTICLE III
Representations and Warranties of Xxxxxxxx and Empire
Xxxxxxxx and Empire represent and warrant to York that the statements
contained in this Article III are correct and complete.
3.01 Organization and Authority. (a) Empire is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Empire has the corporate power and authority to execute and deliver this
22
Agreement and each of the other Transaction Documents to which it is a party
and to perform its obligations hereunder and thereunder. There are no
dissolution, liquidation or bankruptcy proceedings pending, contemplated by
or, to the knowledge of Xxxxxxxx or Empire, threatened against Empire.
(b) Xxxxxxxx is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania. Xxxxxxxx has the
corporate power and authority to execute and deliver this Agreement and each
of the other Transaction Documents to which it is a party and to perform its
obligations hereunder and thereunder. There are no dissolution, liquidation
or bankruptcy proceedings pending, contemplated by or, to the knowledge of
Xxxxxxxx or Empire, threatened against Xxxxxxxx.
3.02 Due Authorization. (a) The execution and delivery by Empire of this
Agreement and each of the other Transaction Documents to which it is a party,
the performance by it of all the terms and conditions hereof and thereof to be
performed by it and the consummation of the transactions contemplated hereby
and thereby have been duly authorized and approved by all necessary corporate
proceedings on the part of Empire. No other corporate proceeding on the part
of Empire is necessary to approve and adopt this Agreement and each of the
other Transaction Documents to which it is a party and to consummate the
transactions contemplated hereby and thereby. This Agreement and the other
Transaction Documents to which Empire is a party have been duly and validly
executed by Empire and constitute the legal, valid and binding obligations of
Empire enforceable against Empire in accordance with their respective terms,
subject to bankruptcy, insolvency or other similar laws of general application
affecting creditors' rights and general principles of equity.
(b) The execution and delivery by Xxxxxxxx of this Agreement and each of the
other Transaction Documents to which it is a party, the performance by it of
all the terms and conditions hereof and thereof to be performed by it and the
consummation of the transactions contemplated hereby and thereby have been
duly authorized and approved by all necessary corporate proceedings on the
part of Xxxxxxxx. No other corporate proceeding on the part of Xxxxxxxx is
necessary to approve and adopt this Agreement and each of the other
Transaction Documents to which it is a party and to consummate the transaction
contemplated hereby and thereby. This Agreement and the other Transaction
Documents to which Xxxxxxxx is a party have been duly and validly executed by
Xxxxxxxx and constitute the legal, valid and binding obligations of Xxxxxxxx
enforceable against Xxxxxxxx in accordance with their respective terms,
subject to bankruptcy, insolvency or other similar laws of general application
affecting creditors' rights and general principles of equity.
3.03 Absence of Conflicts. The execution and delivery by each of Empire and
Xxxxxxxx of this Agreement and each of the other Transaction Documents to
which it is a party, the compliance by each of Empire and Xxxxxxxx with the
terms and conditions hereof and thereof, and the consummation by each of
Empire and Xxxxxxxx of the transactions contemplated hereby and thereby will
not:
(a) conflict with any of the terms, conditions or provisions of the articles
of incorporation or bylaws of either of Empire or Xxxxxxxx,
(b) violate any provision of, or require any consent, authorization or
approval under, any law or administrative regulation or any judicial,
administrative or arbitration order, award, judgment, writ, injunction or
decree applicable to, or any Permit issued to, or notice to or filing with any
Governmental Authority with respect to either of Empire or Xxxxxxxx,
23
(c) violate, conflict with, result in a breach of any provision of or the loss
of any benefit under, constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or require any
consent, authorization or approval under, any of the terms conditions or
provisions of any note, bond mortgage, indenture, Lien or other agreement,
instrument for borrowed money, any guarantee of any agreement or instrument
for borrowed money or any license, lease or any other agreement or instrument
to which either of Empire or Xxxxxxxx is a party or by which it is bound or to
which any of its properties or assets is subject,
(d) result in the creation of any Lien upon any of the assets of either of
Empire or Xxxxxxxx, or
(e) give to others any material rights or interests (including rights of
purchase, termination, cancellation or acceleration) under any such indenture,
mortgage, Lien, lease, agreement or instrument, which, with respect to the
matters specified in clauses (b) through (e) of this Section 3.03 could
reasonably be expected to delay, prevent or hinder in any material respect the
transactions contemplated hereby.
3.04 Litigation and Claims. There are no actions, suits or proceedings
pending or, to the knowledge of Xxxxxxxx or Empire, threatened against either
of Empire or Xxxxxxxx which could reasonably be expected, if adversely
determined, to delay, prevent or hinder the consummation of the transactions
contemplated by this Agreement.
3.05 Brokers' Fees. Neither Empire nor Xxxxxxxx has incurred any liability
for brokerage fees, finder's fees, agent's commissions or other similar forms
of compensation in connection with this Agreement or any transactions
contemplated hereby for which York will be responsible.
3.06 Governmental Approvals. No consents or approvals of or filings or
registrations with Governmental Authority, or with any third party are
required to be made or obtained by either of Empire or Xxxxxxxx in connection
with (i) the execution and delivery by each of Empire and Xxxxxxxx of this
Agreement and the other Transaction Documents and (ii) the consummation by
each of Empire and Xxxxxxxx of the transactions contemplated by this
Agreement.
3.07 Warranties. YORK HAS NOT MADE, AND YORK HEREBY EXPRESSLY DISCLAIMS AND
NEGATES, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR
NATURE WHATSOEVER, RELATING TO ANY IMPLIED OR EXPRESSED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED OR
EXPRESSED WARRANTY CONCERNING ENVIRONMENTAL CONDITION, ZONING, FLOODING OR
DRAINAGE CHARACTERISTICS, WETLANDS STATUS, FAULTING CHARACTERISTICS OR SOIL
CONDITIONS WITH RESPECT TO THE SUBSIDIARIES AND THEIR ASSETS. EMPIRE AND
XXXXXXXX ACKNOWLEDGE THAT ENVIRONMENTAL PERMITS ARE REQUIRED FOR EMPIRE TO OWN
AND OPERATE CERTAIN OF THE ASSETS OF THE SUBSIDIARIES AND THAT LICENSES OR
OTHER APPROVALS MAY BE REQUIRED TO OPERATE CERTAIN OF THE ASSETS OF THE
SUBSIDIARIES. EMPIRE AND XXXXXXXX ACKNOWLEDGE AND AGREE THAT CERTAIN OF THE
ENVIRONMENTAL PERMITS OF THE SUBSIDIARIES OR THEIR BUSINESSES OR THEIR ASSETS
AND ANY APPLICABLE LICENSES NECESSARY TO OPERATE SUCH ASSETS MAY NOT BE FREELY
ASSIGNABLE TO EMPIRE. EMPIRE AND XXXXXXXX ACKNOWLEDGE AND AGREE THAT UNDER
SOME CIRCUMSTANCES THERE MAY BE A PERIOD OF TIME BETWEEN ACQUISITION OF AN
ASSET AND ISSUANCE, REISSUANCE OR TRANSFER OF A PERMIT BY A GOVERNMENTAL
AUTHORITY, AND, SUBJECT TO THE OBLIGATIONS OF YORK UNDER THIS AGREEMENT TO
COOPERATE WITH AND ASSIST EMPIRE IN CONNECTION THEREWITH, EMPIRE ASSUMES ALL
RISKS RELATED THERETO, INCLUDING RISK OF FINES AND PENALTIES ASSOCIATED WITH
24
ACQUISITION AND OPERATION OF AN ASSET PRIOR TO ISSUANCE, REISSUANCE OR
TRANSFER OF A PERMIT OR LICENSE. IF ANY ENVIRONMENTAL PERMITS ARE ISSUED,
REISSUED, OR TRANSFERRED TO EMPIRE, EMPIRE AND XXXXXXXX UNDERSTAND AND
ACKNOWLEDGE THAT THEY MAY CONTAIN DIFFERENT OR LESS FAVORABLE TERMS THAN THOSE
ENVIRONMENTAL PERMITS CURRENTLY HELD BY YORK OR THE SUBSIDIARIES. EMPIRE AND
XXXXXXXX ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION 3.07 ARE A MATERIAL
PORTION OF THE INDUCEMENT TO YORK TO SELL THE PURCHASED STOCK EMPIRE, AND THAT
BUT FOR SUCH PROVISIONS, YORK WOULD NOT SELL THE PURCHASED STOCK TO EMPIRE.
ARTICLE IV
Covenants
4.01 Employees. (a) None of Xxxxxxxx, Empire nor York intends this
Agreement to create any rights or interests, except as between Xxxxxxxx,
Empire and York, and no present, former or future employee of Xxxxxxxx, Empire
or York shall be treated as a third party beneficiary by, in or under this
Agreement. Nothing in this Agreement shall affect the ability of Xxxxxxxx or
Empire to hire or terminate the employment of employees.
(b) York shall be liable for compliance with the WARN Acts insofar as they
relate to any facilities closing, mass layoff or similar event which occurs
before the Closing. Xxxxxxxx and Empire shall be liable for compliance with
the WARN Acts insofar as they relate to any facilities closing, mass layoff or
similar event which occurs upon or after the Closing.
(c) For at least two (2) years following the Closing, Xxxxxxxx or Empire, as
the case may be, agrees to provide employee benefits to the Subsidiaries'
employees which are in the aggregate, no less favorable than such benefits
that were provided by York and the Subsidiaries as of the Closing. For these
purposes, the Subsidiaries' employees will be given credit for years of
service with York, its subsidiaries and their predecessors for all employee
benefit purposes, with the exception of the defined benefit pension plans of
Xxxxxxxx.
4.02 Financial Statements. York will cause its auditors to provide to Xxxxxxxx
and to Empire, on or prior to sixty five (65) days after the date hereof, the
audited financial statements of the Subsidiaries which are necessary for
Xxxxxxxx to meet its reporting obligations under Items 2 and 7 of Form 8-K
under the Securities Exchange Act of 1934, as amended. Xxxxxxxx shall pay to
York one half of the fees of York's auditors in connection with the same.
4.03 Tax Matters. Xxxxxxxx and York agree to furnish or cause to be furnished
to each other, upon request, as promptly as practicable, such information and
assistance relating to the Subsidiaries (including, without limitation, access
to books and records) as is reasonably necessary for the filing of all Tax
Returns, and making of any election related to Taxes, the preparation for any
audit by any taxing authority, and the prosecution or defense of any claim,
suit or proceeding relating to any Tax Return. Xxxxxxxx and York will retain
all books and records with respect to Taxes pertaining to the Subsidiaries for
a period of at least six (6) years following the Closing. Xxxxxxxx and York
will cooperate with each other in the conduct of any audit or other proceeding
related to Taxes and each will execute and deliver such powers of attorney and
other documents as are necessary to carry out the intent of this Section 4.03.
4.04 Environmental Response. (a) Xxxxxxxx and Empire acknowledge that the
York Bronze Real Property, the OMC Real Property and the Sub 1 Real Property
are subject to on-going environmental investigation, remediation, and/or other
corrective work and response actions undertaken pursuant to the Colonial Guild
25
Merger Documents (as hereinafter defined) and the OMC Merger Documents (as
hereinafter defined) (collectively, "Environmental Response Activities").
Xxxxxxxx and Empire consummate the transactions contemplated by this Agreement
with the understanding that the Environmental Response Activities set forth on
Schedule 4.04 have been identified as needing to be completed after the date
of this Agreement by the Shareholder Representatives (as that term is defined
in the Colonial Guild Merger Documents) and the Shareholders (as that term is
defined in the OMC Merger Documents) in accordance with the terms of such
agreements and subject to the rights and remedies of York thereunder.
(b) The Xxxxxxxx Group (as defined below) grants the Shareholder
Representatives, the Shareholders and York and their respective contractors,
subcontractors, and representatives, such reasonable access to that portion of
the York Bronze Real Property, the OMC Real Property and the Sub 1 Real
Property as is necessary for the purpose of performing their respective
obligations with respect to Environmental Response Activities as described in
the Colonial Guild Merger Documents and OMC Merger Documents. The parties
agree to reasonably cooperate with respect to the work to be completed on the
York Bronze Real Property, the OMC Real Property and the Sub 1 Real Property,
such that Xxxxxxxx and Empire use reasonable efforts not to interfere with,
hinder or prevent the rights and obligations of York, the Shareholder
Representatives and the Shareholders to complete the Identified Environmental
Response Activities (defined below), and York uses reasonable efforts to
minimize the disruption of Xxxxxxxx' operations. Xxxxxxxx and the
Subsidiaries agree to designate in writing to York the name and contact
information of its representative to participate in the process of consulting
and, if desired by York, approving any ongoing Environmental Response
Activities under the Colonial Guild Merger Documents and/or the OMC Merger
Documents at the York Bronze Real Property, the OMC Real Property and/or the
Sub 1 Real Property. The Xxxxxxxx Group agrees to promptly provide comments
to any work proposed by York, the Shareholder Representatives or the
Shareholders; provided, however, that any proposed changes by the Xxxxxxxx
Group to the work to be performed at the York Bronze Real Property, the OMC
Real Property and/or the Sub 1 Real Property shall be in conformance with the
requirements of the Colonial Guild Merger Documents or OMC Merger Documents
and shall be reasonable in view of York's rights and remedies thereunder. If
no comments are provided within ten business days of the Xxxxxxxx Group's
receipt of such proposed Environmental Response Activities, it will be
presumed that the Xxxxxxxx Group has agreed to the proposed Environmental
Response Activities.
(c) York agrees to continue after the Closing to perform its obligations
under the Colonial Guild Merger Documents and the OMC Merger Documents with
respect to the Environmental Response Activities, consisting only of (i) any
claimed Shareholders' Environmental Escrow Obligations as that term is defined
in the Colonial Guild Merger Documents, (ii) the preparation of a storm water
pollution prevention plan and obtaining a storm water general permit from the
Texas Natural Resource Conservation Commission for the OMC Real Property and
(iii) the matters set forth in the Response Activities Agreement of the OMC
Merger Documents (collectively, the "Identified Environmental Response
Activities"), including the handling of any escrows or payments to
environmental consultants or attorneys and any arbitration or litigation, now
pending or hereafter commenced, arising from such Identified Environmental
Response Activities, until the conclusion thereof, except to the extent caused
by or attributable to any breaches by the Xxxxxxxx Group of any of their
obligations hereunder. York shall have the responsibility to use commercially
reasonable efforts to cause the Shareholder Representatives and the
Shareholders to complete the Identified Environmental Response Activities but
26
only to the extent it can avail itself of its rights under the Colonial Guild
Merger Documents and OMC Merger Documents and their related escrows to fund
the same. As used herein, the standard for completion of any Identified
Environmental Response Activities shall be (i) the obtaining of any necessary
permits or other authorizations with respect to the storm water issue at
Bryan, Texas, or (ii) receipt of "Completion Evidence" as that term is defined
in the Colonial Guild Merger Documents or "Closure" as that term is defined in
the OMC Merger Documents.
(d) If, but only if, the Xxxxxxxx Group requests any Environmental Response
Activities other than or in addition to the Identified Environmental Response
Activities to be performed at the York Bronze Real Property, the OMC Real
Property or the Sub 1 Real Property, (i) the Xxxxxxxx Group will contact York,
and the parties agree to reasonably cooperate to have York present the same to
and process the same with the Shareholder Representatives and the
Shareholders, with York having only the obligation to use commercially
reasonable efforts, at no cost or expense to York, to undertake the
responsibility for advocating the Xxxxxxxx Group position to the Shareholder
Representatives or the Shareholders within, and participating in, the dispute
resolution procedures under such documents, (ii) the Xxxxxxxx Group agrees to
be bound by any decision reached under the dispute resolution procedures of
the Colonial Guild Merger Documents or the OMC Merger Documents without any
recourse against York and (iii) the Xxxxxxxx Group agrees to defend, hold
harmless, and indemnify York against all claims, demands, disputes, losses,
damages, costs and expenses (including without limitation attorneys' and other
professionals' fees) associated with or arising from the assertion of the
Xxxxxxxx Group's position at its or their request as described above and
resolution of disputes with respect to the same.
(e) Other than with respect to its agreement to use its commercially
reasonable efforts to take the actions described above with respect to the
Identified Environmental Response Activities affecting the York Bronze Real
Property, the OMC Real Property, the Sub 1 Real Property or the Subsidiaries,
York shall bear no responsibility, liability, obligation or duty to the
Xxxxxxxx Group or any other Person for (i) any particular results with respect
to such Environmental Response Activities, (ii) any disbursement from the
Escrow Deposit (as defined under the Colonial Guild Merger Documents)
authorized by York for any proposed Environmental Response Activities approved
or deemed approved by the Xxxxxxxx Group hereunder, (iii) any reimbursement
from the Escrow Deposit to any party to the Colonial Guild Merger Documents,
or (iv) the amount of the Escrow Deposit and its sufficiency for any
Environmental Response Activities.
For purposes of this Agreement, the "Colonial Guild Merger Documents" shall
include the Agreement and Plan of Merger entered into as of February 17, 1998
by and among York, Colonial Acquisition Corp., and Colonial Guild, Ltd., and
all other documents and amendments associated with that transaction, including
without limitation the Escrow Agreement, Access Agreement, and Letter
Agreement and the "OMC Merger Documents" shall include the Agreement and Plan
of Merger entered into as of December 18, 1998 by and among The York Group,
Inc., York Acquisition Corp. III, OMC Industries, Inc., and Xxx Xxxxxxxx and
Xxxxx Xxxxxxxx, and all other documents and amendments associated with that
transaction, including without limitation, the Fixed Fee Remediation Contract
and the Response Activities Agreement and the Pollution Legal Liability Select
Policy issued to York by American International Specialty Lines Insurance
Company (the "OMC Insurance Policy"). York shall remain the named insured
under the OMC Insurance Policy.
27
For purposes of this Section 4.04, the "Xxxxxxxx Group" shall mean,
collectively, Xxxxxxxx, Empire and (after the Closing) the Subsidiaries.
4.05 Post-Closing Corporate Governance of Subsidiaries. Xxxxxxxx, Empire and
York agree as follows with respect to corporate governance and related matters
applicable to each of the Subsidiaries after the Closing Date:
(a) The Board of Directors of each of the Subsidiaries shall consist of two
(2) persons, one (1) designated by Empire (the "Empire Designee") and one (1)
designated by York (the "York Designee" and, together with the Empire
Designee, the "Designees"). Either party may remove its Designee from time to
time, and any vacancy created by the removal, resignation, death or disability
of a director shall be filled by the party designating the applicable
Designee. Xxxxxx Xxxxxxxx shall be the initial York Designee and Xxxxx Xxxxx
shall be the initial Empire Designee. Each of Empire and York shall, and York
shall cause York Bronze and OMC to, vote all shares of voting stock in the
Subsidiaries in favor of such Designees.
(b) Neither Empire nor York shall transfer any of its shares of York Bronze
Common Stock or OMC Common Stock without the prior written consent of the
other party. Any purported transfer without such consent shall be null and
void.
(c) Neither Empire nor York shall permit or suffer to exist any Lien on or
affecting its shares of York Bronze Common Stock or OMC Common Stock.
(d) Effective as of the Closing Date, the officers of York Bronze, OMC and Sub
1 shall be the persons identified on Schedule 4.05(d), subject to change from
time to time by action of the Board of Directors of the respective
Subsidiaries.
(e) Effective as of the Closing Date, Xxxxxxxx and Empire shall cause the
Subsidiaries to be covered by the insurance policies and programs of Xxxxxxxx
and its Affiliates.
(f) The Boards of Directors of York Bronze and OMC shall, and York and Empire
as the shareholders of York Bronze and OMC shall, at the earliest time as
either such shareholder deems appropriate, take steps to liquidate and
dissolve York Bronze and OMC (the "Liquidation") and, in connection with such
Liquidation, to cause Empire to assume all Liabilities of York Bronze and OMC
(other than Liabilities relating to Excluded Assets), to distribute the Sub 1
Common Stock and the Sub 1 Preferred Stock to Empire and to distribute the
Excluded Assets and the $7,790,000 paid to York Bronze and the $1,100,000 paid
to OMC under the Asset Purchase Agreement, including any interest and
dividends earned or accrued thereon after the closing of the Asset Purchase
Agreement, to York. Each party shall execute such documents and take such
actions as may be reasonably required to carry out the Liquidation in an
orderly fashion.
(g) In the event that the liquidating distributions to York upon the
Liquidation of York Bronze and OMC (the "Actual York Liquidation Proceeds") is
not greater than or equal to $8,890,000, plus any interest that would have
accrued thereon from the date of closing the Asset Purchase Agreement to the
date of receipt by York of such proceeds (the "Expected York Liquidation
Proceeds"), Xxxxxxxx and Empire shall make a cash payment on the date of the
liquidating distributions to York in an amount equal to the Expected York
Liquidation Proceeds less the Actual York Liquidation Proceeds. The parties
acknowledge that until the Liquidation occurs, the $8,890,000 paid to York
28
Bronze and OMC under the Asset Purchase Agreement shall be invested at the
discretion of York.
4.06 Uses of Names. (a) Effective from and after the Closing and up to
December 31, 2001, York hereby grants the Xxxxxxxx Group the nonexclusive,
royalty-free right to use (without right of sublicense) the name "York Bronze"
any derivative thereof and any corporate symbols or logos related thereto, but
only in connection with the conduct and operation of the businesses of the
Subsidiaries, provided, however, that the Xxxxxxxx Group shall not represent
or hold itself out as representing York and provided further, however, that
the Xxxxxxxx Group shall indemnify and hold harmless York from and Adverse
Consequences incurred by York as a result of the Xxxxxxxx Group's use of such
names or symbols or logos.
(b) The Xxxxxxxx Group acknowledges that, except for the limited right granted
by this Section, the Xxxxxxxx Group has no right or interest in the name
"York" or any trade name, service name, trademark or service xxxx or logos
relating thereto. Except as set forth in this Section, the Xxxxxxxx Group
shall not use any name, trade name, service xxxx, trademark, service xxxx or
any related logos or symbols incorporating "York" in any manner whatsoever.
Prior to December 31, 2001, the Xxxxxxxx Group shall take all such action as
is necessary to cause the Subsidiaries to make all filings as necessary to
change their corporate names to names that do not contain "York" or any
substantially or confusingly similar name or reference, and thereafter, the
Xxxxxxxx Group shall take all such action as is necessary to cause the
Xxxxxxxx Group and its Affiliates to cease using any name, trade name,
trademark or service xxxx or any related logos or symbols incorporating "York"
in any manner whatsoever.
ARTICLE V
Remedies for Breaches of this Agreement
5.01 Survival of Representations, Warranties and Covenants. All of the
representations, warranties and covenants of the parties contained in this
Agreement shall survive the Closing (even if the damaged party knew or had
reason to know of any misrepresentation or breach of warranty at the time of
the Closing) and shall continue in full force and effect thereafter for a
period of one (1) year; provided, that (a) Sections 4.01(c), 4.06, 7.01, 7.02
and 7.11 shall survive for the applicable statute of limitations period and
(b) if the Liquidation shall not have occurred within such one (1) year
period, the covenants set forth in Section 4.05 shall remain in effect until
the earlier to occur of (i) the Liquidation or (ii) disposition by York of its
shares of York Bronze Common Stock and OMC Common Stock, and (c) Sections
5.03(a)(ii) and (iii) shall survive the Closing without limitation. XXXXXXXX
AND EMPIRE HEREBY WAIVE FROM AND AFTER CLOSING TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY AND ALL RIGHTS, CLAIMS, ACTIONS OR CAUSES OF ACTION EITHER OF THEM
MAY HAVE AGAINST YORK AND ITS AFFILIATES RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT AND THE CERTIFICATES AND OTHER DOCUMENTS DELIVERED PURSUANT TO
THIS AGREEMENT, OTHER THAN CLAIMS UNDER SECTIONS 5.02, 7.01, 7.02 AND 7.11 AND
OF FRAUD AND RIGHTS, CLAIMS, ACTIONS AND CAUSES OF ACTION ARISING OUT OF A
BREACH OF ANY COVENANT OR AGREEMENT OF YORK. FURTHER, EXCEPT AS PROVIDED IN
SECTIONS 5.02, 7.01, 7.02 AND 7.11 XXXXXXXX AND EMPIRE WAIVE, RELEASE AND
COVENANT NOT TO XXX YORK AND ITS AFFILIATES FOR ANY DAMAGES OF ANY KIND OR
CHARACTER, ARISING UNDER ANY ENVIRONMENTAL LAW (STATUTORY, REGULATORY, COMMON
LAW OR OTHERWISE) RELATING TO ANY DAMAGE, INCLUDING STRICT LIABILITY, INCURRED
OR ALLEGEDLY INCURRED BY EITHER OF XXXXXXXX OR EMPIRE. IN ADDITION, XXXXXXXX
AND EMPIRE COVENANT AND AGREE THAT NEITHER OF THEM SHALL FILE ANY CLAIMS WITH
ANY INSURER OF YORK OR ITS AFFILIATES FOR RECOVERY UNDER ANY INSURANCE
29
POLICIES COVERING YORK OR ITS AFFILIATES AND DO HEREBY WAIVE, IRREVOCABLY AND
FOREVER AND TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHTS THEY MAY HAVE
TO RECOVER UNDER SUCH INSURANCE POLICIES; PROVIDED, HOWEVER, THAT XXXXXXXX
SHALL HAVE THE RIGHT TO CLAIM AGAINST THE AMERICAN INTERNATIONAL SPECIALTY
LINES INSURANCE COMPANY POLLUTION LEGAL LIABILITY SELECT POLICY, POLICY NUMBER
PLS2674645, ISSUED TO YORK.
5.02 Indemnification Provisions for Benefit of Xxxxxxxx and Empire. (a)
Subject to the terms and conditions of this Article V, if there is any breach
or inaccuracy of any of the representations, warranties or covenants of York
contained herein, or if any third party alleges facts that, if true, would
mean that such a breach or inaccuracy existed, and provided that the Parent
Group delivers to York, pursuant to Section 5.04 hereof, a claim for
indemnification with respect to such alleged breach or inaccuracy, then York
shall indemnify the Parent Group, from and against all Adverse Consequences
that the Parent Group has suffered caused by, resulting from, arising out of
or relating to such breach or inaccuracy through and after the date of such
claim. For purposes of this Agreement, the "Parent Group" shall mean either
or both of Xxxxxxxx and Empire.
(b) York's obligations under Section 5.02(a) shall be subject to the following
limitations:
(i) York shall not have any liability to the Parent Group for Adverse
Consequences for any breach of the representations, warranties or covenants
under this Agreement or the Asset Purchase Agreement to the extent the
aggregate amount of all such Adverse Consequences for which York would
otherwise be liable under this Agreement and under Section 5.02(a) of the
Asset Purchase Agreement exceeds Ten Million Dollars ($10,000,000);
(ii) York shall not have any liability to the Parent Group for Adverse
Consequences for any breach of the representations or warranties under this
Agreement or under the Asset Purchase Agreement unless and until the aggregate
amount of all such Adverse Consequences relating thereto for which York would,
but for this Section 5.02(b)(ii) or Section 5.02(b)(ii) of the Asset Purchase
Agreement, be required to indemnify the Parent Group exceeds on a cumulative
basis an amount (the "Basket Amount") equal to Five Hundred Thousand Dollars
($500,000), at which point York, subject to the further terms, conditions and
limitations of this Agreement and the Asset Purchase Agreement, shall
indemnify the Parent Group for all Adverse Consequences exceeding the Basket
Amount;
(iii) if a reserve (in the form of an accrued Liability or an offset to an
asset or similar item) was reflected in the Financial Statements relating to
any matter for which the Parent Group would otherwise be entitled to
indemnification under this Agreement or the Asset Purchase Agreement, then the
calculation of the Parent Group's Adverse Consequences in respect of such
matter shall be reduced by the full amount of the reserve as reflected in
Financial Statements; and
(iv) the obligations to indemnify and hold the Parent Group harmless shall
terminate as to each representation, warranty and covenant when each such
representation, warranty or covenant terminates; provided, however, that such
obligations to indemnify and hold harmless shall not terminate with respect to
any item as to which the Parent Group shall have, prior to the expiration of
the applicable period, previously made a claim by delivering an
indemnification notice pursuant to Section 5.04 and in compliance with the
requirements therefor, but only with respect to the content of, and on the
basis set forth in, such indemnification notice.
30
(c) York's obligation to indemnify Parent Group under Section 5.02(a) shall
not be affected or limited by Parent Group's obligation to indemnify York and
its Affiliates under Section 5.03(a)(iii)(3).
5.03 Indemnification Provisions for Benefit of York. (a) Subject to the
terms and conditions of this Article V, Xxxxxxxx and Empire shall have the
following indemnification obligations:
(i) If there is any breach or inaccuracy of any of the representations,
warranties or covenants of the Parent Group contained herein, or if any third
party alleges facts that, if true, would mean that such a breach or inaccuracy
existed, and provided that York deliver to the Parent Group pursuant to
Section 5.04 hereof a claim for indemnification with respect to such alleged
breach or inaccuracy, then Xxxxxxxx and Empire, jointly and severally, shall
indemnify York from and against all Adverse Consequences that York has
suffered or may suffer caused by, resulting from, arising out of or relating
to such breach or inaccuracy through and after the date of such claim,
(ii) Xxxxxxxx and Empire, jointly and severally, shall indemnify York and its
Affiliates for any fines, penalties, and Adverse Consequences relating to any
recission (but not attorneys' fees) resulting from, arising out of or relating
to any violation of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and the rules and regulations thereunder, in connection with the
transactions contemplated by this Agreement, the Asset Purchase Agreement and
any other agreements among the parties or their Affiliates.
(iii) Empire and Xxxxxxxx, jointly and severally, shall indemnify York and its
Affiliates from and against any and all Liabilities and other Adverse
Consequences resulting from, arising out of or relating to (1) the Liquidation
of OMC and/or York Bronze, (2) any attempt by a third party to recover any
amount of the Actual York Liquidation Proceeds from York or its Affiliates,
and (3) any failure by Sub 1 or any of its Affiliates to fully pay, perform or
otherwise satisfy any of the Assumed Liabilities as defined in the
Contribution, Assignment and Assumption Agreement dated as of May 21, 2001;
provided, however, that Xxxxxxxx and Empire shall not be required to indemnify
York and its Affiliates under this Section 5.03(a)(iii)(3) if and only to the
extent that (and only for so long as) Parent Group is entitled to
indemnification from York under Section 5.02(a).
(b) The Parent Group's obligations under Section 5.03(a)(i) shall be subject
to the following limitations:
(i) The Parent Group shall not have any liability for Adverse Consequences for
any breach of representations, warranties or covenants under Section
5.03(a)(i) of this Agreement or Section 5.03(a)(i) of the Asset Purchase
Agreement to the extent the aggregate amount of all such Adverse Consequences
for which the Parent Group would otherwise be liable under Section 5.03(a)(i)
of this Agreement and under Section 5.03(a)(i) of the Asset Purchase Agreement
exceeds Ten Million Dollars ($10,000,000);
(ii) The Parent Group shall not have any liability for Adverse Consequences
for any breach of the representations or warranties under Section 5.03(a)(i)
of this Agreement and Section 5.03(a)(i) of the Asset Purchase Agreement
unless and until the aggregate amount of all such Adverse Consequences
relating thereto for which the Parent Group would, but for this Section
5.03(b)(ii) or Section 5.03(b)(ii) of the Asset Purchase Agreement, be
required to indemnify York exceeds on a cumulative basis a Basket Amount equal
to Five Hundred Thousand Dollars ($500,000), at which point, the Parent Group,
subject to the further terms, conditions and limitations of this Agreement and
31
the Asset Purchase Agreement, shall indemnify York for all Adverse
Consequences exceeding the Basket Amount; and
(iii) the obligations to indemnify and hold York harmless shall terminate as
to each representation, warranty and covenant when each such representation,
warranty or covenant terminates, provided, however, that such obligations to
indemnify and hold harmless shall not terminate with respect to any item as to
which York shall have, prior to the expiration of the applicable period,
previously made a claim by delivering an indemnification notice pursuant to
Section 5.04 and in compliance with the requirements therefor, but only with
respect to the content of, and on the basis set forth in, such indemnification
notice.
(c) Notwithstanding anything to the contrary in this Agreement or the Asset
Purchase Agreement, the limitations set forth in Sections 5.03(b)(i), (ii) and
(iii) above shall not apply to or otherwise limit in any manner the
obligations of Xxxxxxxx and Empire under Sections 5.03(a)(ii) and (iii) above.
5.04 Notice of Claim for Indemnification. No claim for indemnification
hereunder shall be valid unless notice of such claim is delivered to the
Parent Group (in the case of a claim by York) or to York (in the case of a
claim by the Parent Group) prior to or upon the date of expiration of the
representation, warranty or covenant pursuant to which such indemnification is
sought. Any such notice shall set forth in reasonable detail, to the extent
known by the person giving such notice, the facts on which such claim is based
and the estimated amount of Adverse Consequences resulting therefrom.
5.05 Matters Involving Third Parties. (a) If the Parent Group or York
receives notice or acquires knowledge of any matter which may give rise to a
claim by another Person and which may then result in a claim for
indemnification under this Article V, then (i) if such notice or knowledge is
received or acquired by the Parent Group, the Parent Group shall within twenty
(20) days notify York thereof, and (ii) if such notice or knowledge is
received or acquired by York, York shall within twenty (20) days notify the
Parent Group thereof; provided, however, that no delay in giving such notice
shall diminish any obligation under this Article V to provide indemnification
unless (and then solely to the extent that) the party from whom such
indemnification is sought is prejudiced. Thereafter, the party seeking
indemnification (the "Indemnified Party") shall deliver to the party from whom
such indemnification is sought (the "Indemnifying Party"), within five
business days after the Indemnified Party's receipt thereof, copies of all
notices, correspondence and documents (including, without limitation, court
papers) received by the Indemnified Party relating to the Third Party Claim.
(b) The Indemnifying Party shall have the right to defend against such claim
by another Person (the "Third Party Claim") with counsel of the Indemnifying
Party's choice reasonably satisfactory to the Indemnified Party so long as
(within thirty (30) days after the Indemnified Party has given notice of the
Third Party Claim to the Indemnifying Party) the Indemnifying Party notifies
the Indemnified Party that the Indemnifying Party will indemnify the
Indemnified Party from and against all Adverse Consequences the Indemnified
Party may suffer caused by, resulting from, arising out of or relating to such
Third Party Claim and the Indemnifying Party conducts the defense of the Third
Party Claim actively and diligently. Notwithstanding any acknowledgement made
pursuant to Section 5.05(b)(i), York shall continue to be entitled to assert
any defense to or limitation on its indemnification responsibility contained
in Section 5.02.
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(c) So long as the Indemnifying Party is conducting the defense of the Third
Party Claim in accordance with Section 5.05(b) hereof, (i) the Indemnified
Party may retain separate co-counsel at its sole cost and expense and
participate in the defense of the Third Party Claim, it being understood,
however, that the Indemnifying Party shall control such defense, and (ii) 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 consent
of the Indemnifying Party. If the Indemnifying Party chooses to defend any
Third Party Claim, the Indemnifying Party shall have the right to control the
defense, compromise or settlement of such matter, and all the parties hereto
shall cooperate in the defense or prosecution of such Third Party Claim. Such
cooperation shall include the execution of documents necessary to effectuate
any reasonable institutional controls that are required as part of a remedial
action approved by a Governmental Authority, retention and (upon the
Indemnifying Party's request) the provision to the Indemnifying Party of
Records that are reasonably relevant to such Third Party Claim, and making
employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder.
Notwithstanding the foregoing, the Indemnifying Party shall not compromise or
settle any Third Party Claim without the consent of the Indemnified Party,
unless such compromise or settlement by the Indemnifying Party involves only
the payment of monetary damages by the Indemnifying Party and includes a full
release of the Indemnified Party from all liability with respect to such Third
Party Claim. If the Indemnifying Party, within a reasonable time after
receipt of an Indemnification Notice relating to a Third Party Claim, chooses
not to assume defense of a Third Party Claim or fails to defend such Third
Party Claim actively and diligently, the Indemnified Party will (upon further
notice) have the right to undertake the defense, compromise or settlement of
such Third Party Claim or consent to the entry of judgment with respect to
such Third Party Claim, on behalf of, and for the account and risk of, the
Indemnifying Party, and the Indemnifying Party shall have no right to
challenge the Indemnified Party's defense, compromise, settlement or consent
to judgment, subject to the limitations on the Indemnifying Party's
obligations pursuant to Section 5.02. The foregoing notwithstanding, in the
event that the Indemnifying Party chooses not to assume defense of a Third
Party Claim or fails to defend such Third Party Claim actively and diligently,
but later chooses to assume defense of such Third Party Claim and gives notice
to the Indemnified Party of such assumption, the Indemnifying Party shall,
effective concurrently with the notice, control such defense, and 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 consent
of the Indemnifying Party.
5.06 Exclusive Remedy. From and after the date hereof, the indemnification
provisions of this Article V shall be the sole and exclusive remedy with
respect to any and all claims relating to the subject matter of this Agreement
(or any related agreements, certificates and other documents, except to the
extent otherwise expressly set forth therein) and no other remedy shall be had
pursuant to any contract, misrepresentation, fraud or other tort theory or
otherwise by Xxxxxxxx or York and their respective officers, directors,
employees, agents, Affiliates, attorneys, consultants, successors and assigns,
all such remedies being hereby expressly waived to the fullest extent
permitted under applicable Law. Without limitation, the procedures set forth
in this Article V constitute the sole and exclusive remedy of Xxxxxxxx and
York and their Affiliates arising out of any breach or claimed breach of the
representations and warranties set forth in Article II and Article III made as
of the date of this Agreement relating to events occurring on or prior to the
date hereof that become known to Xxxxxxxx or York on, prior to or subsequent
33
to the date hereof. In furtherance of the foregoing, except with respect to
the rights of Xxxxxxxx under this Agreement, Xxxxxxxx hereby waives, from and
after the date hereof, to the fullest extent permitted under applicable Law,
any and all other rights, claims and causes of action it may have against York
and its Affiliates relating to the subject matter of this Agreement arising
under or based upon any federal, state, local or foreign Law or otherwise,
including, without limitation, such rights, claims and causes of action
Xxxxxxxx may have against York under any Environmental Law or Worker Safety
Law (Statutory, Regulatory Common Law or otherwise) or CERCLA.
ARTICLE VI
Definitions
As used herein the following terms have the following meanings:
"Adverse Consequences" shall mean all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, liabilities, obligations, Taxes, Liens, losses, expenses and
fees, including court costs and reasonable attorneys' and accountants' fees
and disbursements.
"Affiliate" shall mean a Person who, directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, the Person specified.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Asset Purchase Agreement" shall have the meaning set forth in the Recitals.
"Basket Amount" shall have the meaning set forth in Section 5.02(b).
"Closing" shall mean the sale and purchase of the Purchased Stock upon the
signing of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Confidential Information" includes information concerning the following, as
they relate to the Subsidiaries: sales, sales volume, sales methods, sales
proposals, customers and prospective customers, identity of customers and
prospective customers, identity of key purchasing personnel in the employ of
customers and prospective customers, amount or kind of customer's purchases
from the Subsidiaries, its sources of supply, its computer programs, system
documentation, special hardware, product hardware, related software
development, its manuals, formulae, processes, methods, machines,
compositions, ideas, improvements, inventions or other confidential or
proprietary information belonging to the Subsidiaries or relating to its
affairs. Notwithstanding the foregoing, the term "Confidential Information"
shall not include information reasonably required for or currently used in
York's casket businesses, if used in connection with the operation of the
casket businesses, even though such information may also be in the possession
of or belong to one or more of the Subsidiaries.
"Contracts" shall have the meaning set forth in Section 2.08.
"Debt Instruments" shall have the meaning set forth in Section 2.14.
"Designee" shall have the meaning set forth in Section 4.05(a).
"Disclosure Schedules" shall mean the disclosure schedules furnished by York,
York Bronze and OMC to Xxxxxxxx and containing all lists, descriptions,
exceptions, and other information and materials as are required to be included
therein pursuant to this Agreement and the Asset Purchase Agreement.
"Domain Names" shall have the meaning set forth in Section 2.11(a)(iv).
"Empire" shall have the meaning set forth in the preamble hereto.
"Empire Designee" shall have the meaning set forth in Section 4.05(a).
"Employee Benefit Plan" shall have the meaning set forth in Section
2.10(d)(i).
"Employee Pension Benefit Plan" shall have the meaning set forth in ERISA
Section 3(2).
34
"Employee Welfare Benefit Plan" shall have the meaning set forth in ERISA
Section 3(1).
"Employment Contracts" shall have the meaning set forth in Section 2.09.
"Environmental Laws" shall have the meaning set forth in Section 2.19.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" shall have the meaning set forth in Section 2.10(d)(iii).
"Excluded Assets" shall mean the York Bronze Real Property located in Aiken,
South Carolina and Portland, Oregon.
"Financial Statements" shall have the meaning set forth in Section 2.05.
"GAAP" shall have the meaning set forth in Section 2.05.
"Governmental Authority" shall mean any federal, state or local court,
administrative agency or commission or other governmental authority or
instrumentality except any of the same which regulate any antitrust laws.
"Indemnified Party" shall have the meaning set forth in Section 5.05(a).
"Indemnifying Party" shall have the meaning set forth in Section 5.05(a).
"Intellectual Property" shall have the meaning set forth in Section 2.11(a).
"Liability" whether or not capitalized, shall mean any liability (whether
known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due), including any liability for Taxes.
"Lien" shall mean any lien, mortgage, pledge, encumbrance, charge or other
security interest other than Permitted Liens.
"Liquidation" shall have the meaning set forth in Section 4.05(f).
"Material Adverse Effect" shall mean an event, occurrence, fact, condition,
change, development or effect that is materially adverse to the business,
property, financial condition or results of operations of the Subsidiaries
taken as a whole, or any other specified Person, excluding specifically any
such event, occurrence, fact, condition, change, development or effect (a)
resultant from changes in general economic or political conditions, (b)
resultant from changes generally applicable to companies engaged in businesses
or industries similar to those in which the specified Person is engaged, (c)
resultant from the announcement of this Agreement or the transactions
contemplated herein, (d) resultant from the announcement of any other
transaction or transactions among York or one or more of its Affiliates and
Xxxxxxxx or one or more of its Affiliates, (e) resultant from any other
transaction or transactions with respect to which York has prior to the date
hereof announced (whether generally or specifically) its intention to
investigate, evaluate or consummate, and (f) set forth in this Agreement or
the Disclosure Schedules.
"Xxxxxxxx" shall have the meaning set forth in the preamble hereto.
"Xxxxxxxx Group" shall have the meaning set forth in Section 4.04.
"Multiemployer Plan" shall have the meaning set forth in Section 2.10(d)(ii).
"OMC" shall have the meaning set forth in the Recitals.
"OMC Common Stock" shall have the meaning set forth in Section 1.01.
"OMC Equipment" shall have the meaning set forth in Section 2.07(b)(ii).
"OMC Equipment Instruments" shall have the meaning set forth in Section
2.07(b)(v).
"OMC Intellectual Property" shall have the meaning set forth in Section
2.11(a).
"OMC Products" shall have the meaning set forth in Section 2.11(a).
"OMC Purchased Shares" shall have the meaning set forth in Section 1.01.
"OMC Real Property" shall have the meaning set forth in Section 2.07(a)(ii).
"OMC Real Property Instruments" shall have the meaning set forth in Section
2.07(a)(ii).
"OMC Registered Intellectual Property" shall have the meaning set forth in
Section 2.11(a).
"Parent Group" shall have the meaning set forth in Section 5.02(a).
35
"Patents" shall have the meaning set forth in Section 2.11(a)(i).
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Permits" shall have the meaning set forth in Section 2.13(a).
"Permitted Liens" shall mean (i) liens in respect of pledges or deposits under
workers' compensation laws or similar legislation, carrier's, landlord's,
workmen's, warehousemen's, mechanic's, laborer's, materialmen's or other
similar liens or easements, covenants and encumbrances, if the obligations
secured by same are not then delinquent; (ii) liens for current ad valorem
Taxes, payments of which are not yet delinquent; (iii) liens relating to
accounts payable incurred in the ordinary course of business and consistent
with past practice; (iv) zoning and subdivision laws and regulations; and (v)
such imperfections of title which do not materially detract from the value or
current uses of the Real Property.
"Person" shall mean any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or agency
thereof.
"Purchase Price" shall have the meaning set forth in Section 1.02.
"Purchased Stock" shall have the meaning set forth in Section 1.01.
"Real Property" shall mean, collectively, the York Bronze Real Property, the
OMC Real Property and the Sub 1 Real Property, together with any and all
buildings and other improvements located thereon.
"Registered Intellectual Property" shall have the meaning set forth in Section
2.11(a).
"Reportable Event" shall have the meaning set forth in ERISA Section 4043.
"Sub 1" shall have the meaning set forth in the Recitals.
"Sub 1 Asset Transfer" shall have the meaning set forth in the Recitals.
"Sub 1 Asset Transfer Agreements" shall mean the bills of sale, assignments,
deeds and other documents, agreements, instruments and certificates executed
and delivered in connection with the Sub 1 Asset Transfer.
"Sub 1 Common Stock" shall have the meaning set forth in Section 2.03(c)(i).
"Sub 1 Equipment" shall have the meaning set forth in Section 2.07(b)(iii).
"Sub 1 Equipment Instruments" shall have the meaning set forth in Section
2.07(b)(vi).
"Sub 1 Intellectual Property" shall have the meaning set forth in Section
2.11(a).
"Sub 1 Preferred Stock" shall have the meaning set forth in Section
2.03(c)(i).
"Sub 1 Products" shall have the meaning set forth in Section 2.11(a).
"Sub 1 Real Property" shall have the meaning set forth in Section
2.07(a)(iii).
"Sub 1 Real Property Instruments" shall have the meaning set forth in Section
2.07(a)(iii).
"Sub 1 Registered Intellectual Property" shall have the meaning set forth in
Section 2.11(a).
"Sub 1 Stock" shall have the meaning set forth in Section 2.03(c)(i).
"Subsidiaries" shall have the meaning set forth in the Recitals.
"Subsidiary Intellectual Property" shall have the meaning set forth in Section
2.11(a).
"Subsidiary Permits" shall have the meaning set forth in Section 2.13(a).
"Subsidiary Products" shall have the meaning set forth in Section 2.11(a).
"Tax" or "Taxes" shall mean any United States Federal, state, local, or
foreign income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, environmental (including taxes under
Code Section 59A), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
alternative minimum, estimated or other tax of any kind whatsoever, including
any interest, penalty or addition thereto, whether disputed or not.
36
"Tax Return" shall mean any return, declaration, report, claim for refund or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Third-Party Claim" shall have the meaning set forth in Section 5.05(b)
hereof.
"Trademarks" shall have the meaning set forth in Section 2.11(a)(v).
"Transaction Documents" shall mean this Agreement, the License Agreement, the
Preferred Provider Agreement, the Asset Purchase Agreement and the Sub 1 Asset
Transfer Agreements.
"URLs" shall have the meaning set forth in Section 2.11(a)(iii).
"Worker Safety Laws" shall have the meaning set forth in Section 2.19.
"York" shall have the meaning set forth in the preamble hereto.
"York Bronze" shall have the meaning set forth in the Recitals.
"York Bronze Common Stock" shall have the meaning set forth in Section 1.01.
"York Bronze Equipment shall have the meaning set forth in Section
2.07(b)(ii).
"York Bronze Equipment Instruments" shall have the meaning set forth in
Section 2.07(b)(iv).
"York Bronze Intellectual Property" shall have the meaning set forth in
Section 2.11(a).
"York Bronze Products" shall have the meaning set forth in Section 2.11(a).
"York Bronze Purchased Shares" shall have the meaning set forth in Section
1.01.
"York Bronze Real Property" shall have the meaning set forth in Section
2.07(a)(i).
"York Bronze Real Property Instruments" shall have the meaning set forth in
Section 2.07(a)(i).
"York Bronze Registered Intellectual Property" shall have the meaning set
forth in Section 2.11(a).
"York Designee" shall have the meaning set forth in Section 4.05(a).
"York's knowledge" and similar phrases shall mean the actual personal
knowledge of any of Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxx Xxxxxxxxxx or Xxxxx Xxxx.
ARTICLE VII
Miscellaneous
7.01 Further Assurances. From time to time at the request of the other party
hereto and without further consideration, Xxxxxxxx, Empire and York will
execute and deliver such further instruments of conveyance and transfer as the
other party may reasonably request in order to consummate the transactions
contemplated herein.
7.02 Expenses. York will pay from the proceeds of sale all costs and expenses
attributable to the performance of and compliance with all agreements and
conditions contained in this Agreement to be performed or complied with by
York or to be performed or complied with by the Subsidiaries prior to the
Closing, including, without limitation, all accounting and legal fees and
expenses of York and of each of the Subsidiaries accrued prior to the Closing.
Xxxxxxxx and Empire will pay all costs and expenses attributable to the
performance of and compliance with all agreements and conditions contained in
this Agreement to be performed or complied with by Xxxxxxxx and Empire or to
be performed by the Subsidiaries after the Closing, including, without
limitation, all accounting and legal fees and expenses of Xxxxxxxx, Empire and
of each of the Subsidiaries accrued after the Closing.
7.03 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania.
37
7.04 Entire Agreement; Modification; Waiver. This Agreement, including the
exhibits, schedules and appendices hereto, constitutes the entire Agreement
among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties and there are no warranties,
representations or other agreements, express or implied, made by any party to
any other party in connection with the subject matter hereof except as
specifically set forth herein or in documents delivered pursuant hereto. To
the fullest extent permitted by law, unless otherwise expressly provided for
herein, no supplement, modification, waiver or termination of this Agreement
shall be binding unless executed in writing by the party to be bound thereby.
No waiver of any provision of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar),
nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
7.05 Notices. All notices, demands, claims, requests, undertakings, consents,
opinions and other communications which may or are required to be given
hereunder or with respect hereto shall be in writing, shall be given either by
personal delivery or by mail, facsimile transmission (with confirmation of
receipt), telegraph, telex or similar means of communication, and shall be
deemed to have been given or made when delivered, if personally delivered, and
otherwise when received, addressed to the respective parties as follows:
If to Xxxxxxxx or to Empire:
Xxxxxxxx International Corporation
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, CFO
Facsimile: 000-000-0000
With a copy which shall not constitute notice to:
Xxxx Xxxxx LLP
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
If to York:
The York Group, Inc.
0000 Xxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
Facsimile: 000-000-0000
With a copy which shall not constitute notice to:
Xxxxx Xxxxxxx & Xxxx LLP
Attn: Xxxxx X. Xxxxxx, Esq.
3400 Chase Tower
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
38
7.06 Counterparts. This Agreement may be executed in as many counterparts as
may be deemed necessary and convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the same
instrument.
7.07 Matters of Construction, Interpretation and the Like.
(a) Construction. Xxxxxxxx, Empire and York have participated jointly in the
negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by Xxxxxxxx, Empire and York and no presumption or burden of
proof shall arise favoring or disfavoring either Xxxxxxxx, Empire or York
because of the authorship of any of the provisions of this Agreement. Any
reference to any United States 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. Unless the context of this
Agreement otherwise requires, (a) words of any gender are deemed to include
each other gender; (b) words using the singular or plural number also include
the plural or singular number, respectively; (c) the terms "hereof," "herein,"
"hereby," "hereto," and derivative or similar words refer to this entire
Agreement; (d) the terms "Article" or "Section" refer to the specified Article
or Section of this Agreement; (e) the term "party" means, on the one hand,
Xxxxxxxx, on the other hand, York, (f) the word "including" means "including
without limitation"; and (g) all references to "dollars" or "$" refer to
currency of the United States of America. The exhibits and schedules
specified in this Agreement are incorporated herein by reference and made a
part hereof. The article and section headings hereof are for convenience only
and shall not affect the meaning or interpretation of this Agreement.
(b) Severability. The invalidity or unenforceability of one or more of the
provisions of this Agreement in any situation in any jurisdiction shall not
affect the validity or enforceability of any other provision hereof or the
validity or enforceability of the offending provision in any other situation
or jurisdiction.
7.08 No Third-Party Beneficiaries. This Agreement shall not confer any rights
or remedies upon any Person other than Xxxxxxxx, Empire, York, and their
respective successors and permitted assigns.
7.09 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign this Agreement or any
of such party's rights, interests or obligations hereunder without the prior
written approval of the other parties hereto.
7.10 Time of Essence. With regard to all dates and time periods set forth or
referred to in this Agreement, time is of the essence.
7.11 Noncompetition.
(a) Non-Disclosure of Confidential Information. York agrees to, and to cause
its Affiliates to, use commercially reasonable efforts to hold and safeguard
the Confidential Information known or held by such Person in trust for the
benefit of Xxxxxxxx, Empire and the Subsidiaries, and agrees that it shall
not, without the prior written consent of Xxxxxxxx or of Empire,
misappropriate or disclose or make available to anyone for use outside York at
any time, any of the Confidential Information.
39
(b) Restrictions on Competition. York covenants and agrees for itself and
on behalf of its direct and indirect subsidiaries (for so long as they are
subsidiaries of York) that for a period of two (2) years following the
Closing, such Persons shall not, anywhere in North America, engage, directly
or indirectly, whether as principal or as agent, consultant, shareholder
(other than as a shareholder of York Bronze and OMC until the Liquidation
occurs), or otherwise, alone or in association with any other Person,
corporation or other entity, in any Competing Business. For purposes of this
Agreement, the term "Competing Business" shall mean the business of
manufacturing bronze urns, bronze niche units, or bronze memorial or
architectural products. Competing Business shall exclude the use, marketing,
distribution and sale of bronze urns, bronze niche units and bronze memorial
and architectural products.
(c) Remedies. In the event of a breach by any of York or its Affiliates of
the terms of this Section 7.11, Xxxxxxxx and/or Empire shall be entitled, if
it or they shall so elect, to institute legal proceedings to obtain damages
for any such breach, or to enforce the specific performance of this Agreement
by such Person and to enjoin such Person from any further violation of this
Agreement and to exercise such remedies cumulatively or in conjunction with
all other rights and remedies provided by law. York acknowledges, however,
that the remedies at law for any breach by it of the provisions of this
Agreement may be inadequate and that Xxxxxxxx and/or Empire shall be entitled
to injunctive relief against it in the event of any breach.
(d) Authorization to Modify Restrictions. It is the intention of the
parties that the provisions of Section 7.11 hereof shall be enforceable to the
fullest extent permissible under applicable law, but that the unenforceability
(or modification to conform to such law) of any provision or provisions hereof
shall not render unenforceable, or impair, the remainder thereof. If any
provision or provisions hereof shall be deemed invalid or unenforceable,
either in whole or in part, this Agreement shall be deemed amended to delete
or modify, as necessary, the offending provision or provisions and to alter
the bounds thereof in order to render it valid and enforceable.
[Signature page to follow]
40
IN WITNESS WHEREOF, the parties hereto have duly executed this Stock Purchase
Agreement or have caused this Stock Purchase Agreement to be duly executed as
of the date first above written.
XXXXXXXX INTERNATIONAL CORPORATION
By Xxxxx X. Xxxxx
Title President
EMPIRE STOCK CORP.
By Xxxxx X. Xxxxx
Title President
THE YORK GROUP, INC.
By Xxxxxx X. Xxxxxxxx
Title CEO & President
41
Schedule 4.04
Environmental Response Activities
(1) Those matters set forth in York's notice letter dated March 16, 2001,
from Xxxxx Liddell & Xxxx LLP to the Shareholder Representatives ("Notice
Letter") regarding notice of claims for indemnification under the Colonial
Guild Merger Documents.
(2) Those matters set forth in the Response Activities Agreement of the OMC
Merger Documents.
(3) Preparation and implementation of a Storm Water Pollution Prevention Plan
and receipt of a general storm water permit from the Texas Natural Resource
Conservation Commission at the facility located in Bryan, Texas.
42
Schedule 4.05
Officers
President Xxxxx Xxxxx
Vice President Xxxxxx Xxxxxxxx
Vice President Xxxxxx Xxxxx
Vice President,
Treasurer & Secretary Xxxxxxx Xxxxx
43
Schedule 1.01(a)
Asset Purchase Agreement
York Bronze Assets
All trade accounts receivable of York Bronze Company
All prepaid expenses of York Bronze Company
All inventories of York Bronze Company
All assets under construction of York Bronze Company
44
Schedule 1.01(b)
Asset Purchase Agreement
OMC Industries Assets
All trade accounts receivable of OMC Industries Company
All inventories of OMC Industries Company
All assets under construction of OMC Industries Company
