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Exhibit 4.6
ASSET PURCHASE AGREEMENT
Dated as of September 4, 2000
Among
AIR PRODUCTS AND CHEMICALS, INC.,
AIR PRODUCTS, L.P.
and
CELANESE LTD.,
CELANESE AMERICAS CORPORATION
and
CNA HOLDINGS, INC.
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TABLE OF CONTENTS
Page
1. Definitions........................................................ 1
2. Transfer of Purchased Assets; Assumption of Liabilities............ 10
3. Purchase Price; Adjustment......................................... 11
4. Closing............................................................ 14
5. Representations, Warranties and Agreements Regarding Sellers....... 14
6. Representations, Warranties and Agreements Regarding Purchaser..... 27
7. Further Covenants.................................................. 29
8. Conditions Precedent to Obligations of the Purchaser............... 44
9. Conditions Precedent to Obligations of the Sellers................. 46
10. Employees.......................................................... 48
11. Brokerage.......................................................... 50
12. Expenses........................................................... 51
13. Taxes.............................................................. 51
14. Survival of Representations; Indemnification....................... 52
15. Termination of Agreement........................................... 65
16. Bulk Sales Law..................................................... 66
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TABLE OF CONTENTS
17. Public Announcements............................................... 66
18. Notices............................................................ 66
19. Extensions and Waivers............................................. 67
20. Entire Agreement................................................... 67
21. Governing Law...................................................... 68
22. Headings........................................................... 68
23. Transferability.................................................... 68
24. Knowledge of Sellers............................................... 69
25. Counterparts....................................................... 69
26. Severability....................................................... 69
27. CAC/CNA............................................................ 70
Appendix
Schedules
Exhibits
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List of Schedules
Schedule Description
-------- -----------
1.1 Assumed Liabilities
1.2 Employees in PVA Business
1.3 Excluded Assets
1.4 Permitted Liens
1.5 Fixed Assets
3.6 Allocation of Purchase Price
5.2 Authority
5.4 Governmental Approvals
5.5 Operating Condition of Assets
5.6 Employee Benefit Plans
5.7 Contracts and Leases
5.8 Patents, Copyrights and Trademarks
5.9 Litigation and Proceedings
5.10 Environmental
5.11 Compliance with Laws
5.12 Material Adverse Change
5.13 Conduct of PVA Business
5.14 Permits
7.1.2 Transition Services
7.11 Segregation of Plants
8.6 Consents
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List of Exhibits
Exhibit Description
------- -----------
A Financial Documents
B Ground Leases
C Technology License
D Long-term Utilities Supply Contract
E Cogeneration Utilities Agreement
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ASSET PURCHASE AGREEMENT, dated as of September 4, 2000 (the
"Agreement"), among AIR PRODUCTS AND CHEMICALS, INC., a Delaware corporation
("Air Products"), AIR PRODUCTS, L.P., a Delaware limited partnership (together
with Air Products, referred to herein as "Sellers"), and CELANESE LTD., a Texas
limited partnership (the "Purchaser"), Celanese Americas Corporation, a Delaware
corporation ("CAC") and CNA Holdings, Inc., a Delaware corporation ("CNA").
WHEREAS, the Purchaser desires to acquire from the Sellers, and the
Sellers desire to sell to the Purchaser, the Purchased Assets (as hereinafter
defined), upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. DEFINITIONS
The terms defined in this Article 1 shall, for the purposes of this
Agreement, have the following meanings:
"ACCOUNTS RECEIVABLE" means the accounts and notes receivable of
Sellers pertaining to the PVA Business.
"ADJUSTMENT STATEMENT" means the statement adjusting the Purchase Price
referred to in subsection 3.2.2 hereof.
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"AFFILIATE" of a person, firm or corporation means a person, firm
(including, without limitation, a partnership, association, limited liability
company or other entity) or corporation that directly, or indirectly through one
or more intermediaries, controls or is controlled by or is under common control
with such person, firm or corporation. For purposes of this definition, the term
"controls," "is controlled by," or "is under common control with" shall mean the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person or entity, whether through the ownership
of voting securities, by contract or otherwise.
"ASSUMED LIABILITIES" means the liabilities of the Sellers pertaining
to the PVA Business listed in Schedule 1.1 hereto, as the same shall exist on
the Closing Date.
"CLAIM NOTICE" means the notice defined in Section 14.8
"CLOSING" means the closing defined in Article 4.
"CLOSING DATE" means the time and date of closing as provided in
Article 4 hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and
any rules and regulations promulgated thereunder.
"CURRENT ASSETS" shall mean the Inventory and Accounts Receivable.
"EMPLOYEE" means those employees of Seller employed in or applicable
position titles for the PVA Business and listed on Schedule 1.2.
"EMPLOYEE BENEFIT AND COMPENSATION PLANS" shall have the meaning set
forth in Section 5.6.2 hereof.
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"ENABLING AGREEMENTS" means the Supply and Service Contracts and the
Ground Leases.
"ENVIRONMENTAL CONDITION" shall mean any physical condition existing on
or under the Premises, such as soil or groundwater contamination, that would
likely be the result of an Environmental Release.
"ENVIRONMENTAL LAWS" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Resource, Conservation and Recovery
Act of 1976, the Water Pollution and Control Act of 1972, the Clean Air Act of
1970, the Safe Drinking Water Act of 1974, the Toxic Substances Control Act of
1976, the Refuse Act of 1899, the Occupational Safety and Health Act of 1970 and
the Emergency Planning and Community Right-to-Know Act of 1986, each as amended,
the state and local counterparts of such laws and other laws, rules, or
regulations of any national, state or local government concerning release or
threatened release of hazardous substances, public or employee health and
safety, worker's compensation or pollution or protection of the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA AFFILIATE" shall mean any trade or business, whether or not
incorporated, that together with the Seller would be deemed a "single employer"
within the meaning of Section 4001(b) of ERISA.
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"EXCLUDED ASSETS" means any assets of the Sellers that are not included
within the definition of the Purchased Assets, including without limitation
those assets set forth on Schedule 1.3 hereto and the matters retained by
Sellers pursuant to Section 2.3, which assets shall remain assets of the Sellers
notwithstanding this Agreement and be subject to Section 7.1.4.
"FINANCIAL DOCUMENTS" means the financial statements prepared by the
Sellers attached hereto as Exhibit A, comprised of the unaudited historical
statement of income for the Sellers' Fiscal Year 1999 and the asset listing at
March 31, 2000.
"GAAP" shall mean United States generally accepted accounting
principles.
"GOVERNMENTAL ENTITY" shall mean a court, arbitral tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency, whether federal, state, local or foreign.
"GROUND LEASES" means the real property leases for the Xxxxxxx City and
Pasadena PVA sites between the Purchaser and Air Products in substantially the
form of Exhibit B, providing for, among other things, a term of not less than 99
years.
"HAZARDOUS SUBSTANCE" is any substance defined in Section 101(14) of
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq., as amended ("CERCLA"), and any substance similarly
classified under the applicable state law where the site is located; and
chemicals; pollutants; contaminants; wastes; toxic or hazardous substances,
materials and wastes; petroleum and petroleum products; asbestos and
asbestos-containing materials; polychlorinated biphenyls; lead and lead-based
paints and materials; radon; or any substance the presence of, release of, or
exposure to requires investigation or remediation.
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"INVENTORY" means the inventories of raw materials, work-in-process,
spare parts and finished goods of the Sellers pertaining to the PVA Business.
"KNOW-HOW" means all manufacturing processes, trade secrets, formulae,
recipes, proprietary formulations, manufacturing, engineering and other
drawings, technical information, engineering and operating data, design and
engineering specifications, documentation and results of research and
development work, and similar materials recording or evidencing the proprietary
expertise of Sellers on the Closing Date pertaining exclusively to the PVA
Business and used or held for use exclusively in connection with the PVA
Business.
"LIENS" shall mean liens, mortgages, claims, encumbrances, security
interests, options, charges, pledges, title defects or objections, easements,
encroachments or restrictions of any kind.
"LOSSES" is defined in Section 14.2.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"PERMITTED LIENS" means (i) encumbrances, liens and charges listed in
Schedule 1.4 hereto; (ii) liens for taxes that are not yet due or that are being
contested in good faith by appropriate proceedings; and (iii) such other liens,
encumbrances, charges, easements, restrictions and other limitations as (A) are
not substantial in amount, (B) do not materially detract from the value of the
properties subject thereto and (C) do not materially impair the use of the
subject assets for the purpose for which they are now employed or materially
interfere with the continued conduct of the PVA Business in the manner in which
it is being and has heretofore been conducted.
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"PERSON" shall mean an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization, entity or
group (as defined in the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder).
"PLAN" shall mean each deferred compensation and each incentive
compensation, stock purchase, stock option and other equity compensation plan,
program, agreement or arrangement; each severance or termination pay, medical,
surgical, hospitalization, life insurance and other "welfare" plan, fund or
program (within the meaning of Section 3(1) of ERISA); each profit-sharing,
stock bonus or other "pension" plan, fund or program (within the meaning of
Section 3(2) of ERISA); each employment, termination or severance agreement; and
each other employee benefit plan, fund, program, agreement or arrangement, in
each case, that is sponsored, maintained or contributed to or required to be
contributed to by the Seller or by any ERISA Affiliate, or to which the Seller
or an ERISA Affiliate is party, whether written or oral, for the benefit of any
Employee or former Employee.
"PRIMARILY" means greater than fifty percent (50%) of the referenced
object or usage.
"PURCHASED ASSETS" means the following assets of the PVA Business, but
excluding the Excluded Assets:
(1) the Accounts Receivable, as the same shall exist on the
Closing Date;
(2) the Inventory, as the same shall exist on the Closing
Date;
(3) subject to additions and eliminations in the ordinary
course of business between the date thereof and the Closing Date, the
buildings, facilities and other improvements on the real property (as
well as the machinery and equipment, plant,
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distribution equipment, office furniture, fixtures, tools, repair
materials, machine and electrical parts) of the Sellers located at the
Xxxxxxx City and Pasadena sites of the PVA Business, in each case
pertaining primarily to the PVA Business, those further fixed assets
shown or incorporated within projects shown on or otherwise referred to
(but only to the extent allocated to the PVA Business) on Schedule 1.5,
and any fixed assets referenced in Exhibit A of the Utilities Supply
Agreements as belonging to the Purchaser or located within the
boundaries of the Premises shown on the applicable site plan attached
to Appendix A to the Ground Lease;
(4) all rights, title and interest of the Sellers in, to and
under all worldwide patents, patent applications, copyrights, copyright
applications, trademark registrations, trademark applications and
service marks and licenses listed in Schedule 1.6 hereto and exclusive
to the PVA Business, other than the trademarks "Airvol" and "Airvol
PLUS", and subject to the licenses listed therein;
(5) all Know-how and all lists possessed by the Sellers of
customers and suppliers of the PVA Business;
(6) all right, title and interest of the Sellers in, to and
under all contracts, leases and permits pertaining to (but only to the
extent of and as to that portion of any such contract, lease or permit
pertaining to) the PVA Business (to the extent transferable);
(7) all right, title and interest of the Sellers in, to and
under all laboratory equipment used primarily by the PVA Business
located at the Sellers' Allentown, Pennsylvania and Greenville, South
Carolina sites;
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(8) franchises, approvals, permits, licenses, orders,
registrations, certificates, variances and similar rights of Sellers
pertaining exclusively to the PVA Business obtained from or granted by
any Governmental Entity, to the extent transferable; and
(9) originals or copies of business records, operating data
and business files of and exclusive to the PVA Business which are in
Sellers' or any of their Affiliates' possession on the Closing Date,
including (a) customer and vendor lists, correspondence and files, (b)
advertising, marketing and sales materials, (c) personnel files of the
Transferred Employees, (d) research and development records and files
and engineering diagrams and (e) financial records and statements.
"PURCHASER-ASSOCIATED PARTY" shall mean Purchaser and its Affiliate(s)
as well as their employees, contractors, or agents.
"PURCHASE PRICE" has the meaning set forth in Section 3.1 hereof.
"PVA BUSINESS" means the research and development with respect to,
manufacture, marketing and sale of polyvinyl alcohol products, including blends
and solutions thereof, and of acetic acid by Sellers, in each case anywhere in
the world, whether conducted directly or through Sellers' Affiliates.
"REAL PROPERTY" shall mean all land (which is an Excluded Asset) that
is owned by any Seller for the use of the PVA Business.
"RELEASE" shall mean any spill, leak, pumping, pouring, emission,
discharge, injection, escape, leaching, dumping, disposing, or other entering
the environment of any Hazardous
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Substance at, in, by, from or related to the PVA Business. This includes
Releases whether known or unknown, intentional or unintentional.
"SELLER-ASSOCIATED PARTIES" shall mean Purchaser and its Affiliate(s)
as well as their employees, contractor, or agents.
"SUPPLY AND SERVICE CONTRACTS" means, collectively, the Utilities
Supply Agreements for the PVA Business in Xxxxxxx City and for the PVA Business
in Pasadena, each in substantially the form of Exhibit D hereof, and the
Cogeneration Utilities Supply Agreement for the PVA Business in Xxxxxxx City,
substantially in the form of Exhibit E.
"TITLE IV PLAN" shall mean a Plan that is subject to Title IV of ERISA.
"TAX OR TAXES" shall mean all taxes, charges, fees, penalties or other
assessments imposed by any Governmental Entity, including income, gross
receipts, excise, property, sales, use, license, unemployment, capital stock,
transfer, franchise, payroll, withholding, stamp and other taxes, and shall
include interest, penalties or additions attributable to any failure to comply
with any Tax Return.
"TAX RETURN" shall mean any requirement regarding any return,
declaration, report, claim for refund, or information return or statement
relating to Taxes, including any such document prepared on a consolidated,
combined or unitary basis and also including any schedule or attachment thereto,
and including any amendment thereof.
"TECHNOLOGY LICENSE" means the technology license between the Purchaser
and Air Products, substantially in the form of Exhibit C, to cover the licensing
to Purchaser of intellectual property rights used on a non-exclusive basis in
the PVA Business.
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"UNREASONABLE CONTACT" shall mean any contact or involvement not
required by law or regulation, not reasonably required to avoid a government
order, not needed to prevent a significant threat to human health or the
environment, and not commercially reasonable for a responsible chemical company
to undertake with respect to a site where such company bears the full risks and
responsibility.
2. TRANSFER OF PURCHASED ASSETS; ASSUMPTION OF LIABILITIES
On the Closing Date, and upon the terms and conditions set forth
herein,
2.1. Sellers shall, subject to Section 7.5, transfer, convey and assign
to the Purchaser, free and clear of all liens, claims, mortgages, charges and
encumbrances, except for the Permitted Liens, good and marketable title to all
the Purchased Assets; and
2.2. The Purchaser shall assume the Assumed Liabilities.
2.3. The Purchaser shall not assume any contract, obligation or
liability of the Sellers not specifically assumed pursuant to Section 2.2 above,
and the Sellers shall not transfer, convey and assign to the Purchaser the
Excluded Assets.
3. PURCHASE PRICE; ADJUSTMENT
3.1. The Purchaser agrees to pay on the Closing Date an amount equal to
$326,000,000 (the "Purchase Price") as payment for the Purchased Assets pending
determination of the adjustment referred to in Section 3.2.2 hereof, and to
assume the Assumed Liabilities of the Sellers to the extent provided in Section
2.2 hereof. On the Closing Date, payment shall be made
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by the Purchaser to the Sellers in immediately available funds by wire transfer
to Account No. 00000000, Bank One, Chicago, IL, or such other account as Sellers
shall designate in writing prior to the Closing Date.
3.2. Within forty-five (45) days after the Closing Date, Sellers will
prepare and deliver to Purchaser,
3.2.1. an asset listing of the PVA Business ("Final Asset
Summary") as of and at the close of business (11 p.m. E.S.T.) on the
Closing Date, which will be prepared in accordance with GAAP,
consistently applied, and on the basis of the same accounting rules and
principles (including the use of Sellers' fiscal year 2000 standard
costs) that were used to prepare the March 31, 2000 asset listing
contained in the Financial Documents ("March 31, 2000 Asset Summary"),
except that in the Final Asset Summary, the value of the vinyl acetate
monomer ("VAM") raw material inventory shall be based upon the VAM cost
in the quarter the VAM was purchased, and the value of the VAM
component of the polyvinyl alcohol ("PVA") finished goods inventory
produced after 1 October 1999 shall be based upon the VAM cost in the
quarter the PVA finished goods were produced; provided, however, that,
if this adjustment causes the Current Assets on the Final Asset Summary
to be increased by more than $3,999,999, the excess over $3,999,999
will be disregarded for purposes of determining the post-closing
adjustment described in Section 3.2.2.
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3.2.2. A statement (the "Adjustment Statement") setting forth
calculations showing the determination of the amount of the
post-closing adjustment payable by Purchaser to Sellers, or by Sellers
to Purchaser, as the case may be. The amount of such post-closing
adjustment shall be determined and paid as follows; the Purchaser shall
pay to the Sellers the amount by which the Current Assets on the Final
Asset Summary exceed the Current Assets on the Xxxxx 00, 0000 Xxxxx
Summary; or the Sellers shall pay to the Purchaser the amount by which
the Current Assets on the Final Asset Summary are less than the Current
Assets on the Xxxxx 00, 0000 Xxxxx Summary.
3.3. During such 45-day period and during normal business hours,
Purchaser will fully cooperate with Sellers with respect to Sellers' preparation
of the statements referred to in Section 3.2 of this Article, and will give
Sellers access to such books and records of the PVA Business and the assistance
of such PVA Business personnel as Sellers reasonably require in connection
therewith.
3.4. If Purchaser has objections to the Adjustment Statement, then
Purchaser shall object in writing to any item or items shown on any of the
statements referred to in Section 3.2 of this Article within thirty (30) days
after delivery to Purchaser of such statements ("Objection Period"). If
Purchaser and Sellers are unable to resolve such objection within fifteen (15)
days after delivery to Sellers of such written objection, the matter or matters
in dispute will be submitted to Xxxxxx Xxxxxxxx LLP for resolution within 30
days of their engagement. The decision of Xxxxxx Xxxxxxxx LLP will be binding on
both Purchaser and Sellers. The Purchaser shall bear the expense of Xxxxxx
Xxxxxxxx LLP if the adjustment set forth by Xxxxxx Xxxxxxxx
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LLP is less than $500,000 favorable to the Purchaser than the proposed
adjustment set forth in the Adjustment Statement; such cost shall otherwise be
payable by Sellers.
3.5. Within three business days after the expiration of the Objection
Period (or the date upon which any disputes are resolved as provided above),
Purchaser will pay to Sellers or Sellers will pay to Purchaser the amount of
adjustment shown in the Adjustment Statement as modified by any actions pursuant
to Section 3.4 of this Article.
3.6. The Purchase Price, as adjusted pursuant to Sections 3.2-3.5 of
this Article, shall for federal, state, local and foreign income tax purposes be
allocated among the Purchased Assets and the covenant not to compete of Air
Products in Section 7.1.3 in the manner set forth in Schedule 3.6 hereto.
Purchaser shall provide Sellers within one hundred twenty (120) days after the
Closing Date a schedule allocating the Purchase Price, as adjusted pursuant to
Sections 3.2-3.5 of this Article, which schedule shall be subject to Sellers'
consent. Sellers' consent shall not be unreasonably withheld to such allocation.
Purchaser and Sellers shall file Internal Revenue Service Form 8594 with their
respective federal income tax returns for the year of the Closing, which shall
be prepared in a manner consistent with the Purchase Price allocation schedule
provided pursuant to this Article. Any increase or decrease in the Purchase
Price which is required to be taken into account by Purchaser and Seller for any
year subsequent to the year of Closing, shall be reflected by Seller and
Purchaser in a supplemental asset acquisition statement on Internal Revenue
Service Form 8594 for the year in which the increase or decrease is properly
taken into account. The Sellers and the Purchaser shall not, nor shall they
permit their respective Affiliates to, take a federal, state, local or foreign
tax position that is inconsistent with such
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allocation with taxing or other public authorities in any jurisdiction. Air
Products' employer identification number is 00-0000000 and Air Products, L.P.'s
is 00-0000000. Purchaser's employer identification number is 00-0000000.
4. CLOSING
4.1. The closing under this Agreement (the "Closing") shall take place
at 10:00 a.m. on September 29, 2000 at the offices of Air Products at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx, or at such other time, date and
place as shall be fixed by written agreement between the parties hereto (the
date of the Closing being herein referred to as the "Closing Date").
5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS REGARDING SELLERS
Air Products represents and warrants to the Purchaser as of the date
hereof and as of the Closing Date as follows:
5.1. ORGANIZATION. Each of the Sellers is a corporation or partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate or partnership power to own or lease
their respective properties and to carry on their respective businesses as now
being conducted. Each of the Sellers is duly qualified or licensed to do
business and in good standing in every jurisdiction where the ownership of their
respective assets or the conduct of the PVA Business require such qualification
or licensing other than
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jurisdictions where failure to be so qualified or licensed would not have a
material adverse effect on the business or financial condition of any of the
Sellers.
5.2. AUTHORITY. Each of the Sellers has full corporate or partnership
power and authority to execute and deliver this Agreement and the other
agreements and instruments to be executed and delivered by them pursuant hereto
and to consummate the transactions contemplated hereby and thereby. All
corporate or partnership acts and other proceedings required to be taken by or
on the part of any of the Sellers to authorize them to carry out this Agreement
and such other agreements and instruments and the transactions contemplated
hereby and thereby have been duly and properly taken. This Agreement has been
duly executed and delivered by each of the Sellers and constitutes, and except
as set forth on Schedule 5.2, each of such other agreements and instruments when
duly executed and delivered by any of the Sellers will constitute, a legal,
valid and binding obligation of the Sellers executing and delivering the same in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally or by general principles of equity (regardless of
whether such enforcement is considered in a proceeding at law or in equity).
5.3. NO VIOLATION. Subject to the filings described in Section 5.4 and
the consents described in Section 7.5, and except as set forth on Schedule 5.2,
the execution and delivery by the Sellers of this Agreement and the other
agreements and instruments to be executed and delivered by them pursuant hereto
and their consummation of the transactions contemplated hereby and thereby will
not, to the knowledge of Air Products, (i) violate any law, order, writ,
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decree, injunction, rule or regulation or (ii) conflict with or result in any
breach of, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or result in the creation of a Lien
or encumbrance (other than a Permitted Lien) on any of the Purchased Assets
pursuant to, the charter documents of any of the Sellers or any indenture,
mortgage, lease, license, agreement or other instrument to which any of them is
a party or by which any of the Sellers or their respective properties or assets
may be bound or affected.
5.4. GOVERNMENTAL APPROVALS. To the knowledge of Air Products, no
approval, authorization, consent or other order or action of, or filing with,
any Governmental Entity is required in connection with the execution and
delivery by the Sellers of this Agreement or the other agreements and
instruments to be executed and delivered by them pursuant hereto or their
consummation of the transactions contemplated hereby or thereby, which
requirement, if not met, would have a material adverse effect on the Purchaser's
operation of the PVA Business after the Closing Date, except (i) filing by Air
Products with the Antitrust Division of the Department of Justice and the
Federal Trade Commission pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, which filing Air Products will make in compliance with
such Act and will use commercially reasonable efforts to comply with any
requests for additional information pursuant thereto, and (ii) those set forth
in Schedule 5.4.
5.5. PURCHASED ASSETS. On the Closing Date Sellers will have good and
marketable title to all the Purchased Assets, free and clear of all Liens,
except for the Permitted Liens. Except as set forth on Schedule 5.5, all
material personal property included in the Purchased
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Assets and presently used by Sellers in the conduct of the PVA Business is in
good operating condition and repair, normal wear and tear excepted.
5.6. EMPLOYEES
5.6.1. Schedule 5.6 contains a materially complete list of all
Plans. None of Sellers nor any ERISA Affiliate has any commitment or
formal plan, whether legally binding or not, to create any additional
employee benefit plan or modify or change any existing Plan that would
affect any Employee.
5.6.2. Sellers have heretofore delivered to Purchaser a
materially complete copy of the Summary Plan Description of each Plan.
5.6.3. No condition relating to the PVA Business exists that
presents a material risk to Purchaser or any Affiliate of Purchaser of
incurring any liability under Title IV or Section 302 of ERISA. Insofar
as the representation made in this subsection 5.6.3 applies to Sections
4064, 4069 or 4204 of Title IV of ERISA, it is made with respect to any
employee benefit plan, program, agreement or arrangement subject to
Title IV of ERISA to which each Seller or any ERISA Affiliate made, or
was required to make, contributions during the five year period ending
on the last day of the most recent plan year ended prior to the Closing
Date.
5.6.4. The PBGC has not instituted proceedings to terminate
any Title IV Plan and no condition exists that presents a material risk
that such proceedings will be
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instituted, nor will the consummation of the transactions contemplated
by this Agreement cause Purchaser to incur any liability to the PBGC or
otherwise under Title IV of ERISA.
5.6.5. No Title IV Plan is (nor has been during the previous
six years) a "multi-employer pension plan," as defined in Section 3(37)
of ERISA, nor is any Title IV Plan a plan described in Section 4063(a)
of ERISA.
5.6.6. The consummation of the transactions contemplated by
this Agreement will not, either alone or in combination with another
event, cause Purchaser to incur any liability to the PBGC or otherwise
under Title IV of ERISA, including any multi-employer plan withdrawal
liability, with respect to any Plan. The consummation of the
transactions contemplated by this Agreement, either alone or in
combination with another event, will not cause Purchaser to incur any
liability or expense (including, without limitation, severance
liability or expense) with respect to benefits or compensation due
Employees which accrued or vested on or prior to the Closing Date under
any Plan, except as set forth on Schedule 5.6.
5.6.7. With respect to the PVA Business, except as set forth
in Schedule 5.6: (A) no collective bargaining or other agreement exists
or, since January 1, 1998, has existed, between any of Sellers and any
labor organization; (B) no oral or written employment agreement exists,
or since January 1, 1998, has existed, between any of Sellers and any
employee; (C) none of Sellers has received written notice that any
representation question presently exists, and no petition concerning
representation under the National Labor
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Relations Act, as amended, is or, since January 1, 1998, has been
pending or to the knowledge of Air Products, threatened; (D) no unfair
labor practice charge or complaint is or, since January 1, 1998, has
been pending or to the knowledge of Air Products, threatened, before
the National Labor Relations Board; (E) no labor dispute, strike,
picketing, handbilling, work slowdown, or work stoppage is or, since
January 1, 1998, has been pending or to the knowledge of Air Products,
threatened; and (F) no decision, order, judgment, decree, or award has
been rendered or issued by any court, board, agency or arbitrator, and
no settlement or agreement has been entered into or executed, since
January 1, 1998 regarding any matter set forth in this subsection
5.6.4.
5.7. OTHER CONTRACTS AND LEASES. Schedule 5.7 hereto lists all written
contracts and leases included in the Purchased Assets in effect on the date
hereof except (i) those required to be listed on Schedule 5.8 hereto and (ii)
any contract or lease that involves executory obligations in an amount of less
than $100,000 and involves a remaining term of one year or less. To the
knowledge of Air Products, except as set forth on Schedule 5.7, with respect to
those contracts listed on Schedules 5.7 and 5.8, (x) Sellers and the other
parties thereto have complied with all of the material provisions of such
contracts and leases and are not in material default under any provision of such
contracts or leases, and (y) all such contracts and leases are in full force and
effect according to their terms. Except for those exclusive distributorship and
sales representative agreements listed on Schedule 5.7, none of the Sellers has
any outstanding contract that will be transferred to Purchaser and that, by its
terms, restricts the PVA Business from competing with any Person in any
geographic area.
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5.8. PATENTS, TRADEMARKS, ETC. Schedule 5.8 hereto lists all patents,
patent applications, copyright registrations, copyright registration
applications, trademark registrations and trademark registration applications
that are used primarily in the PVA Business and that are owned by Sellers and
all licenses related thereto in which Sellers are the licensor and all licenses
in which Sellers have any rights as licensee or otherwise. Except as set forth
on Schedule 5.8, to the knowledge of Air Products, (i) there are no claims or
demands of any person, firm or corporation pertaining thereto, (ii) no
proceedings have been instituted, are pending or are threatened that challenge
any rights in respect thereto and (iii) none of the patents, copyrights or
registered trademarks listed in Schedule 5.8 hereto is being materially
infringed by others, and none is subject to any outstanding order, decree,
judgment or stipulation adversely affecting the rights thereunder. Except as set
forth on Schedule 5.8 and subject to any licenses set forth therein, to the
knowledge of Air Products, Sellers own or possess all rights, title and interest
in all patents, trademarks, copyrights and Know-how used primarily in the PVA
Business as presently conducted.
5.9. LITIGATION AND PROCEEDINGS. Except as set forth in Schedule 5.9
hereto, none of the Sellers is a party to, or (to the knowledge of Air Products)
threatened with, any legal action or other proceeding pertaining to the PVA
Business or the Purchased Assets before any Governmental Entity. None of the
Sellers has received notice of or been charged with any material violation of
any federal, state or local law or administrative regulations pertaining to the
PVA Business or the Purchased Assets, except as set forth in Schedule 5.9
hereto.
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5.10. ENVIRONMENTAL. To the knowledge of Air Products, at the time of
Closing and except as disclosed on Schedule 5.10:
5.10.1. the Purchased Assets and the PVA Business are in
material compliance with applicable Environmental Laws and Sellers
possess all environmental Permits the absence of which would have a
material adverse effect on the operation of the PVA Business or use of
the Purchased Assets;
5.10.2. there have been no reportable releases of a Hazardous
Substance on the Premises covered by the Ground Lease or adjacent sites
owned by Seller that might migrate to the Premises during the period of
Seller's ownership of the PVA Business;
5.10.3. there are no outstanding notices or written claims
alleging that the Purchased Assets or the PVA Business is not in
compliance with or has liability or potential liability under
applicable Environmental Laws;
5.10.4. the Purchased Assets and the PVA Business are in
compliance with applicable NPDES Best Management Practices and
applicable Spill Prevention and Countermeasure Control Plans for the
Purchased Assets;
5.11. COMPLIANCE WITH LAWS. Except as described in Schedule 5.11
hereto, and except with respect to Environmental Laws (which are exclusively the
subject of Section 5.10), to the knowledge of Air Products, each of the Sellers
is, and during the last five years has been, in compliance in all material
respects with all federal, state and local laws and court and
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administrative orders pertaining to the PVA Business or the Xxxxxxx City or
Pasadena site, the failure to comply with which would materially adversely
affect the PVA Business.
5.12. NO MATERIAL ADVERSE CHANGE. Except as set forth in Schedule 5.12,
to the knowledge of Air Products, since July 31, 2000 there has not been any
material adverse change in the business, results of operations or financial
condition of the PVA Business. For the purposes of this paragraph, a decline in
the market price of the products of the PVA Business or an increase in the price
of raw materials consistent with the market generally that occurs after the date
hereof and on or before the Closing Date shall be deemed not to be material.
Except as set forth on Schedule 5.12, since July 31, 2000, the Sellers with
respect to the PVA Business have not:
5.12.1. suffered any damage or destruction to any material
amount of the Purchased Assets;
5.12.2. increased, or experienced any material change in any
assumptions underlying or methods of calculating, any bad debt,
contingency or other reserves;
5.12.3. written down the value of any Inventory or written off
as uncollectible any notes or accounts receivable, except for
immaterial write-downs and write-offs or write-downs and write-offs in
the ordinary course of business and consistent with past practice;
5.12.4. canceled any debts or waived any claims or rights of
substantial value;
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5.12.5. sold, transferred, or otherwise disposed of any
material assets, except in the ordinary course of business and
consistent with past practice; or
5.12.6. made any material change in any method of accounting
or accounting practice.
5.13. CONDUCT OF THE PVA BUSINESS. Except as set forth on Schedule
5.13, since January 1, 1999, Sellers have conducted the PVA Business in the
ordinary course, consistent with past practice.
5.14. PERMITS. Schedule 5.14 hereto includes a complete list of all
material federal, state and local governmental licenses, permits and
authorizations currently held or being applied for by the Sellers in connection
with the PVA Business as presently conducted. Except as set forth on Schedule
5.14 hereto, no claim is pending or, to the knowledge of Air Products,
threatened, to revoke any such licenses, permits or authorizations.
5.15. FINANCIAL DOCUMENTS. The Financial Documents are complete and
accurate in all material respects and have been prepared from and currently
reflect financial statements used by the management of Air Products in the
operation of the PVA Business. The Financial Documents have been prepared in
accordance with GAAP, consistently applied, and the unaudited historical
statement of income for the Sellers' Fiscal Year 1999 fairly presents the
financial position and the results of operations of the PVA Business for the
period therein indicated. The statement of income included in the Financial
Documents has been prepared including expenses and income allocated to the PVA
Business for corporate, group and division
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expenses. The asset listing included in the Financial Documents has been
prepared including the fixed assets and the Current Assets of the PVA Business.
5.16. NO UNDISCLOSED LIABILITIES. To the knowledge of Air Products,
except (i) as disclosed in the Financial Documents and (ii) for liabilities and
obligations incurred in the ordinary course of business and consistent with past
practice since July 31, 2000, none of the Sellers, with respect to the PVA
Business and the Purchased Assets, has any liability or obligation of any nature
that would be required to be reflected in a balance sheet of the PVA Business
prepared in accordance with GAAP.
5.17. ACCOUNTS RECEIVABLE. All Accounts Receivable included in the
Purchased Assets represent sales actually made in the ordinary course of
business. To the knowledge of Air Products, all such Accounts Receivable are
collectible, less approximately $75,000 of such Accounts Receivable.
5.18. INVENTORY. All of the Inventory consists of a quality and
quantity usable and salable in the ordinary and usual course of business, except
for 2% or less worth of such Inventory which comprise obsolete materials and/or
materials of below-standard quality. The quantities of each type of Inventory
(whether raw materials, work-in-process, spare parts or finished goods) have
been purchased or maintained in the ordinary course of business consistent with
past practice.
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5.19. CUSTOMERS AND SUPPLIERS. To the knowledge of Air Products, none
of the Sellers has received notice that any customer or supplier has or intends
to cease doing business with the PVA Business which would have a material
adverse effect on the PVA Business.
5.20. TAX MATTERS.
5.20.1. Each of the Sellers (a) has timely filed all Tax
Returns with respect to the PVA Business and Purchased Assets that it
was required to file and all such Tax Returns were, true, correct and
complete in all material respects, and (b) has paid all Taxes shown to
be due and payable on such Tax Returns.
5.20.2. There is no material dispute or claim concerning any
Tax liability with respect to the PVA Business and Purchase Assets of
any Seller claimed or raised by any taxing authority in writing.
5.20.3. Each of the Sellers has withheld and paid all Taxes
required to have been paid in connection with the amounts paid or owing
to any employee, independent contractor, creditor, stockholder, or
other third party with respect to the PVA Business and Purchased
Assets.
5.20.4. With respect to the PVA Business and the Purchased
Assets, none of the Sellers has any liability for the Taxes of any
person (other than any of the Sellers) as transferee or successor, by
contract, or otherwise.
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5.20.5. There are no Tax liens, other than statutory liens for
Taxes not yet due and payable with respect to the Purchased Assets, and
no claims are being asserted against any Seller by any taxing authority
that could lead to the imposition of a Tax lien with respect to any of
the Purchased Assets.
5.21. REAL PROPERTY. The Sellers have good and marketable title to the
Real Property, free and clear of any Liens, other than Permitted Liens. The
Sellers have not received notice that any of the Real Property is subject to any
governmental decree or order to be sold or is being condemned, expropriated or
otherwise taken by any public authority with or without payment of compensation
therefor, nor to Air Products' knowledge has any such condemnation,
expropriation or taking been proposed.
5.22. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5 OR IN THE
ENABLING AGREEMENTS, SELLERS MAKE NO WARRANTY OR REPRESENTATION, WHETHER ORAL OR
WRITTEN, EXPRESS OR IMPLIED, CONCERNING THE PURCHASED ASSETS OR THE PVA
BUSINESS, OR THE MERCHANTABILITY OR FITNESS THEREOF FOR ANY PURPOSE. IT IS
UNDERSTOOD AND AGREED THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS
CONTAINED OR REFERRED TO IN THE SCHEDULES HERETO OR IN ANY OTHER MATERIAL THAT
HAS BEEN PROVIDED TO PURCHASER OR ANY OF ITS AFFILIATES, AGENTS OR
REPRESENTATIVES (INCLUDING WITHOUT LIMITATION THE OFFERING MEMORANDUM AND ANY
DUE DILIGENCE PRESENTATIONS OR DOCUMENTS) ARE NOT AND SHALL NOT BE DEEMED TO BE
REPRESENTATIONS OR WARRANTIES OF
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THE SELLERS OR ANY OF THEIR AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS REGARDING PURCHASER
The Purchaser represents and warrants to Sellers as of the date hereof
and as of the Closing Date as follows:
6.1. ORGANIZATION. The Purchaser is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Texas. It has the partnership power to own or lease its properties and to carry
on its business as now being conducted.
6.2. PARTNERSHIP AUTHORITY. The Purchaser has full partnership power
and authority to execute and deliver this Agreement and the other agreements and
instruments to be executed and delivered by it pursuant hereto and to consummate
the transactions contemplated hereby and thereby. All partnership acts and other
proceedings required to be taken by or on the part of the Purchaser to authorize
it to carry out this Agreement and such other agreements and instruments and the
transactions contemplated hereby and thereby have been duly and properly taken.
This Agreement has been duly executed and delivered by the Purchaser and
constitutes, and each of such other agreements and instruments when duly
executed and delivered by the Purchaser will constitute, a legal, valid and
binding obligation of the Purchaser in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the rights of creditors generally or by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding at law or in equity).
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6.3. NO VIOLATION. Subject to the filings described in Section 6.4 and
the consents described in Section 7.5, the execution and delivery by the
Purchaser of this Agreement and the other agreements and instruments to be
executed and delivered by it pursuant hereto and its consummation of the
transactions contemplated hereby and thereby will not, to the knowledge of
Purchaser, (i) violate any law, order, writ, decree, injunction, rule or
regulation or (ii) conflict with or result in any breach of, or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or result in the creation of a lien or encumbrance on any of the
properties or assets of the Purchaser pursuant to, the partnership agreement of
the Purchaser or any indenture, mortgage, lease, license, agreement or other
instrument to which the Purchaser is a party or by which the Purchaser, or its
properties or assets, may be bound or affected.
6.4. GOVERNMENTAL APPROVALS. To the knowledge of Purchaser, no
approval, authorization, consent or other order or action of, or filing with,
any court, Governmental Entity is required in connection with the execution and
delivery by the Purchaser of this Agreement or the other agreements and
instruments to be executed and delivered by it pursuant hereto or its
consummation of the transactions contemplated hereby or thereby, except filing
by the Purchaser with the Antitrust Division of the Department of Justice and
the Federal Trade Commission pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, which filing the Purchaser will make in accordance
with such Act and will use commercially reasonable efforts to comply with any
requests for additional information pursuant thereto, and those set forth in
Schedule 5.4.
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6.5. FINANCING. At the Closing, Purchaser will have available (i) cash
sufficient to provide all funds necessary to pay the Purchase Price for the
Purchased Assets and (ii) net assets sufficient to support its obligations under
this Agreement.
6.6. PURCHASER'S INVESTIGATION. In proceeding with the Closing,
Purchaser will have satisfactorily exercised its due diligence in investigating
the Purchased Assets and PVA Business and the Assumed Liabilities and will have
relied solely upon such due diligence and those representations and warranties
expressly made by Air Products in Article 5 of this Agreement.
7. FURTHER COVENANTS
The parties hereto hereby further covenant and agree as follows:
7.1. ACCESS TO INFORMATION AND DOCUMENTS; FURTHER ASSURANCES.
7.1.1. From and after the date hereof but solely for purposes
of facilitating the orderly transition of operational control of the
PVA Business to the Purchaser, the Sellers shall give the officers and
employees of the Purchaser and its designees reasonable access, during
reasonable business hours, to the offices, production facilities,
plants, properties, officers, employees, books and records (said books
and records not to include the Seller's federal or state income tax
returns) of the PVA Business and shall cause its officers and employees
to furnish to the Purchaser and its aforesaid representatives such
financial, technical, operating and other information pertaining to the
PVA Business as its representatives shall from time to time reasonably
request and to discuss such
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information with such representatives (including any of the foregoing
that Sellers used on a non-exclusive basis in the PVA Business).
7.1.2. Sellers shall provide to Purchaser, for a reasonable
period of time following the Closing (not to exceed 12 months), at
Purchaser's cost and expense and without liability (whether for
negligence (simple or gross), strict liability, or otherwise) warranty
or representation with respect thereto, those services set forth on
Schedule 7.1.2 in order to facilitate the transition of the PVA
Business to Purchaser. Purchaser shall provide Sellers with reasonable
notice of its intent to cease use of any such services. Any such
transition services shall be deemed to be performed by Purchaser in its
operation of the PVA Business, for which Purchaser shall indemnify
Sellers under Section 14.5.4 hereof but without regard to the
deductible referenced in Section 14.7, with respect to claims by
Purchaser or any third party.
7.1.3. From and after the Closing, upon request and at the
cost and expense of Purchaser shared equally with Sellers, Sellers
shall execute, acknowledge and deliver all such further acts,
assurances, deeds, assignments, transfers, conveyances and other
instruments and papers as may be reasonably required to sell, assign,
transfer, convey and deliver to and vest in Purchaser, and more fully
protect its right, title and interest in and employment of, all
Purchased Assets and as otherwise may be appropriate to carry out the
transactions contemplated in this Agreement; provided, however,
preparation of any and all necessary documentation for the transfer of
any intellectual property rights will be the responsibility of Sellers,
and Purchaser, at its cost and expense, shall be responsible for
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filing and recording such documentation; provided, further, Seller will
cooperate in signing all necessary documents to transfer such property
rights as requested.
7.1.4. If at any time after the Closing the parties determine
that certain assets (including the Excluded Assets) were definitionally
excluded from or included within (as the case may be) the Purchased
Assets to be transferred hereunder, but were nonetheless intended to be
included in or made available to Purchaser in its operation of the PVA
Business, or excluded from the Purchased Assets and retained by
Sellers, and such assets are necessary to the operation of the PVA
Business or Sellers' businesses or operations, as the case may be, the
parties shall cooperate in good faith to determine a mutually
acceptable method for providing Purchaser or Sellers, as the case may
be, with timely access to such assets, taking into account Sellers' or
Purchaser's continued need for and use of such assets.
7.2. CONFIDENTIALITY AGREEMENTS.
7.2.1. Unless and until the Purchaser shall have purchased the
Purchased Assets and shall have undertaken the obligations of
confidentiality that any of Sellers shall be subject to at that time,
Purchaser shall not use for its own purposes or advantages (other than
in preparation for the orderly transition of operational control of the
PVA Business to the Purchaser) or publish or disclose to any third
person any confidential or proprietary information, know-how, formulae
or trade secret related to the PVA Business or the Purchased Assets,
including business and financial information (collectively,
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"Information"), obtained (orally, in writing or observed) from any of
the Sellers, unless and until Information is or becomes a matter of
public knowledge through no fault of the Purchaser or is lawfully
acquired from a third person without restrictions of confidentiality.
If the Purchaser shall not purchase the Purchased Assets, as
contemplated by this Agreement, the Purchaser shall not keep or take,
and shall promptly return, any and all Information which constitutes a
part of the PVA Business, and shall not keep or take, and shall
promptly return, any document or other thing embodying any such
Information. Regardless of whether the Purchaser shall purchase the
Purchased Assets, the Purchaser shall not use for its own purposes or
advantages or publish or disclose to any third person any Information
constituting a part of the business of the Sellers other than the PVA
Business, unless and until such Information is or becomes a matter of
public knowledge through no fault of the Purchaser or is lawfully
acquired from a third person without restrictions of confidentiality.
7.2.2. After the Closing Date, the Sellers, except as required
by law or as consented to by the Purchaser or its designees in writing,
shall not use for its own purposes or advantages in any business
competitive with the PVA Business or any part thereof or publish or
disclose to any third person any confidential information previously
obtained by it in connection with the PVA Business, unless and until
such information is or becomes a matter of public knowledge through no
fault of the Sellers or is lawfully acquired from a third person
without restrictions of confidentiality or is otherwise retained by
Sellers as part of the Excluded Assets.
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7.3. COVENANT NOT TO COMPETE. In order that Purchaser may have and
enjoy the full benefit of the PVA Business, the Sellers hereby agree that they
will not, nor will any of their Affiliates, directly or indirectly, engage in
the manufacture or sale of polyvinyl alcohol for a period of five years from the
Closing Date; provided, however, that, notwithstanding this Section 7.1.3, Air
Products or any of its Affiliates may engage in such business through any
company acquired by Air Products or any of its Affiliates after the date of this
Agreement if such after-acquired company was already engaged in such business at
the time of such acquisition, and the revenues of such company attributable to
that portion of the company engaged in such business during the twelve (12)
months preceding Seller's (or its Affiliate's) acquisition thereof did not
exceed thirty-five percent (35%) of the total revenues of such company during
such period.
7.4. CLOSING CONDITIONS. The Sellers, on the one hand, and the
Purchaser, on the other hand, agree to use their commercially reasonable efforts
to cause all of the conditions to the obligations of the other to consummate the
transactions contemplated hereby to be satisfied as soon as practicable after
the date of this Agreement.
7.5. CONSENTS AND APPROVALS, ETC. The Sellers and the Purchaser agree
to use their commercially reasonable efforts to obtain all necessary consents
and approvals of all Governmental Entities, and other persons required in
connection with the transactions contemplated hereby, including, without
limitation, for execution, delivery and performance of this Agreement and
transfer of the Purchased Assets to be acquired hereunder by the Purchaser. The
Sellers agree to use all commercially reasonable efforts to obtain the consent
of any other
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party or parties to any claim, contract, license, lease, commitment, sales order
or purchase order to the transfer or assignment thereof to the Purchaser in all
cases in which such consent is required for assignment and has heretofore not
been obtained. To the extent that any of the claims, contracts, licenses,
permits, leases, commitments, sales orders or purchase orders for which
assignment to the Purchaser is provided herein are not assignable without the
consent of another party, this Agreement shall not constitute an assignment or
an attempted assignment if such assignment or attempted assignment would
constitute a breach thereof. If such consent is not obtained, the parties agree
to cooperate in any reasonable arrangements (not including the payment by the
Sellers of additional sums of money to any person) designed to provide for the
Purchaser the rights and obligations under any such claim, contract, license,
permit, lease, commitment, sales order or purchase order, including but not
limited to subcontracting thereof to Purchaser and enforcement at the cost and
for the account of the Purchaser of any and all rights of the Sellers against
the other party thereto arising out of the breach or cancellation thereof by
such other party or otherwise. If and to the extent such arrangements cannot be
made, the Purchaser shall have no obligation with respect to any such claim,
contract, license, permit, lease, commitment, sales order or purchase order.
7.6. COLLECTIONS. From and after the Closing Date, the Purchaser shall
have the right and authority to collect, for its own account, all accounts
receivable and other items that are being transferred or are intended to be
transferred to the Purchaser as provided in this Agreement, and to endorse with
the name of the appropriate Sellers any checks or drafts received on account of
any such accounts receivable and other items. Each of the Sellers agrees that it
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shall promptly transfer or deliver to the Purchaser any cash or other property
that such Sellers may receive after the Closing Date in respect of any claims,
contracts, licenses, permits, leases, commitments, sales orders, purchase
orders, accounts receivable or other items that are being transferred or are
intended to be transferred to the Purchaser as provided in this Agreement,
including any amounts payable as interest in respect thereof.
7.7. INSTRUMENTS OF TRANSFER TO THE PURCHASER. On the Closing Date, the
Sellers shall deliver to the Purchaser such bills of sale, endorsements,
assignments and other good and sufficient instruments of assignment, transfer
and conveyance, in form and substance reasonably satisfactory to the Purchaser
and its counsel, as shall be effective to vest in the Purchaser all of Sellers'
title to the Purchased Assets. Simultaneously with such delivery, the Sellers
shall take all actions necessary to put the Purchaser in actual possession and
operating control of the Purchased Assets. From and after the Closing Date, upon
request of the Purchaser, the Sellers shall execute, acknowledge and deliver all
such further assignments, transfers, conveyances and other instruments as may be
necessary to assign, transfer and convey to and vest in the Purchaser and more
fully protect its right, title and interest in the Purchased Assets, and as
otherwise may be appropriate to carry out the transactions contemplated by this
Agreement.
7.8. CONDUCT OF PVA BUSINESS PRIOR TO THE CLOSING DATE. Except as
permitted by the prior written consent of the Purchaser, between the date hereof
and the Closing Date, the Sellers shall continue to conduct the PVA Business in
the ordinary course, consistent with past practice. Without limiting the
generality of the foregoing, each of the Sellers covenants that, between the
date hereof and the Closing Date:
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7.8.1. it will use its commercially reasonable efforts to
preserve the PVA Business;
7.8.2. with respect to the PVA Business, it will not modify,
amend or terminate any material contracts, or waive, release or assign
any material claims relating to post-Closing events, except in the
ordinary course of business consistent with past practice;
7.8.3. with respect to the PVA Business, it will not enter
into any material commitment, including any capital expenditure to be
expended after the Closing Date, except in the ordinary course of
business consistent with past practice;
7.8.4. with respect to the PVA Business, it will not transfer,
sell or dispose of any assets other than in the ordinary course of
business consistent with past practice;
7.8.5. it will not make any material change in the
compensation or benefits payable or to become payable to any of the
Employees (other than normal recurring increases in the ordinary course
of business consistent with past practice), or adopt, enter into or
amend any employment, severance, consulting, or termination agreement
with, or employee benefit plan for, any of the Employees;
7.8.6. with respect to the PVA Business, it will not make any
material change to any of the accounting methods used by it unless
required by GAAP; and
7.8.7. it will not enter into any agreement, contract,
commitment or arrangement to do any of the foregoing.
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7.9. USE OF NAMES. On and after the Closing Date, neither the Purchaser
nor its Affiliates shall use the name "Air", "Air Products", "Airvol" or "Airvol
PLUS" or any combination thereof, or logos, slogans, symbols or designs
signifying the same in any form, variation or manner in connection with the PVA
Business or any business that the Purchaser or its Affiliates may thereafter
conduct. Notwithstanding the foregoing, after the Closing, Purchaser may use and
distribute existing products, shipping materials, purchase orders, stationery,
invoices, sales, promotional or other forms of literature, included in the
Purchased Assets, that bear any of the aforementioned names, logos, slogans,
symbols or designs provided Purchaser attaches a sticker or name plate that
discloses the acquisition of such Purchased Assets by Purchaser. The right
granted in the immediately preceding sentence shall terminate on the sixth-month
anniversary of the Closing Date, provided that such right shall continue with
respect to bagged, finished goods Inventory until such time as the Inventory is
sold so long as Purchaser uses commercially reasonable efforts to sell existing
Inventory first.
7.10. RECOGNITION OF EMPLOYEES' UNION. The Purchaser shall at the
Closing recognize the Paper, Allied-Industrial, Chemical & Energy Workers'
International Union, Local 5-727 (PACE) as the exclusive bargaining agent for
the hourly employees performing services in connection with the PVA Business at
the Xxxxxxx City, Kentucky, plant.
7.11. SEGREGATION OF THE PLANTS. The parties shall undertake to
segregate the Purchased Assets and the premises leased under the Ground Leases
from those assets and operations of Sellers on the remainder of Sellers'
Pasadena and Xxxxxxx City sites, with each party responsible
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for undertaking and completing their respective obligations as and within the
time periods set forth on Schedule 7.11.
7.12. NOTIFICATION OF CERTAIN MATTERS.
7.12.1. From time to time prior to the Closing, each party
shall promptly supplement or amend the Schedules with respect to any
matter discovered after the date hereof that, if existing at, or
occurring on, the date of this Agreement, would have been required to
be set forth or described in the Schedules on the date hereof.
7.12.2. Each party shall give notice to the other promptly
after becoming aware of the occurrence or non-occurrence of any event
whose occurrence or non-occurrence would cause either (1) any
representation or warranty thereof contained in this Agreement to be
untrue or inaccurate in any material respect at the Closing Date or (2)
any condition set forth in Article 8 or 9, as the case may be, to be
unsatisfied.
7.13. PREPARATION AND FILING OF TAX RETURNS. To the extent not filed
prior to the Closing Date, and to the extent not otherwise inconsistent with the
law or practice of a Governmental Entity, Sellers shall prepare (or cause to be
prepared), at its own expense and in a manner consistent with past practice, all
real and/or personal property tax returns required to be filed with respect to
the Purchased Assets for all periods up to and including the Closing Date. To
the extent that any real and/or personal property tax that is determined and
paid based upon such returns, and to the extent that such tax is to be prorated
between the parties in accordance with Section 13.3 hereof, then not less than
twenty (20) business days prior to the date on which
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45
each such return is due to be filed (taking into account any applicable
extensions), the appropriate Seller or Sellers shall deliver a draft of each
such return to Purchaser for its prompt review and consent, which consent shall
not be unreasonably withheld. Sellers or Purchaser (as required by law) shall
timely file (or cause to be timely filed) such returns. Seller or Purchaser (as
required by law) shall timely pay the amount due with respect to any such tax
return to the appropriate Governmental Entity, and such paying party shall
promptly deliver an invoice to the other party for the other party's prorated
portion of such tax, determined under Section 13.4.
7.14. PASADENA WASTEWATER. With respect to the Pasadena PVA facility,
Seller will assign or arrange to have assigned to Purchaser wastewater capacity
of 8,000 pounds biological oxygen demand ("BOD") per day (the amount of
additional BOD which Seller acquired when building the PVOH Plant) for discharge
to the Xxxxxxxx Tunnel of the Gulf Coast Waste Disposal Authority. Seller agrees
to transfer this amount of the BOD capacity allocation to Purchaser at or around
the time of Closing depending on when the new sewer line is ready for use (by
Closing or within two months thereafter). To confirm that Seller receives
adequate capacity, Seller and Buyer agree to conduct a post-closing testing
program based upon a mutually agreed upon testing protocol. At the conclusion of
such testing program, should the Parties mutually agree that the amount of BOD
actually required by the Pasadena PVA facility adequate for the typical
operation of the facility differs from the original 8,000 pound allocation, they
will make such transfers of BOD as necessary from the original 8,000 pound
allotment to provide Purchaser with that amount. If the Parties fail to mutually
agree on an amount, Purchaser's 8,000 pound capacity allocation shall remain.
The Parties further agree to request
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46
that Gulf Coast Waste Disposal Authority allow the Parties to temporarily share
each other's allocations, as mutually agreed, during maintenance or upset
conditions.
7.15. ENVIRONMENTAL SITE ASSESSMENTS. The parties hereto hereby further
covenant and agree as follows:
7.15.1. Prior to Closing, Purchaser and/or its attorneys,
agents and consultants are permitted to undertake at Purchaser's cost
and expense, environmental site assessments, consisting of Phase I
Environmental Site Assessment (i.e. noninvasive investigations of and
inquiries to generally evaluate the environmental condition of the
Premises). With respect to the Premises at Pasadena, Texas, Purchaser
shall within one year from the date of Closing complete a Phase II
Environmental Site Assessment (i.e. soil and ground water analysis,
installation of soil borings, groundwater monitoring xxxxx and other
investigatory activities) to identify and establish the environmental
releases and condition of the Premises which shall be used as the
Environmental Baseline for purposes of Sec. 14 of the Asset Purchase
Agreement (such Phase I and Phase II Environmental Site Assessments
shall be collectively referred to as "Environmental Work").
7.15.2. Prior to initiating the Pasadena Phase II
Environmental Site Assessment ("ESA"), Purchaser shall provide Seller
with a detailed workplan for Seller's information. Purchaser shall have
the right to modify the work plan or vary from the workplan as the ESA
is conducted but shall keep Seller reasonably
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47
informed of any changes. Purchaser and/or its consultant shall split
all samples with Seller and timely provide Seller with a copy of all
Phase II sampling results and a copy of all draft and final ESA
reports. At Seller's request and cost, Purchaser will assist Seller in
pursuing any claims for contamination caused by unrelated entities that
may be discovered through the ESA. Seller shall assume full
responsibility for the proper, legal and environmentally sound disposal
of all excavated soil, drilling mud, surface water, sediment,
groundwater and other residuals and waste (collectively "Residuals")
created by the ESA provided that Purchaser shall reimburse Seller for
the reasonable costs of sampling, transportation and disposal which
shall be based on the assumptions shown on Appendix D of the Ground
Lease. Once the Residuals are transferred by Purchaser to Seller,
Seller shall indemnify, defend and hold harmless Purchaser from and
against any and all liabilities, losses, claims, demands, penalties,
fines, settlements, costs or expenses to the extent resulting or
arising from the further sampling, transportation, disposal or other
handling of such Residuals.
7.15.3. Purchaser shall indemnify, defend and hold harmless
Seller from and against any and all liabilities, losses, claims,
demands, penalties, fines, settlements, costs or expenses to the extent
resulting or arising from the Environmental Work or related activities
of Purchaser and/or its consultant on the Premises ("Due Diligence
Damages"); provided, however, that neither Purchaser nor its
consultants shall be liable for any Due Diligence Damages attributable
to
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48
the environmental condition of the Premises prior to the date of this
Agreement that was not caused in whole or in part by Purchaser. If,
however, during Purchaser's due diligence activities, Seller can
establish by a preponderance of the evidence that Purchaser and/or its
consultants have exacerbated the adverse environmental condition of the
Premises, Purchaser shall indemnify Seller for the incremental costs of
remedying any Due Diligence Damages attributable to Purchaser's
activities in connection therewith.
7.15.4. Seller shall cooperate with Purchaser in conducting
the Environmental Work.
7.15.5. At the completion of the Environmental Work, Purchaser
shall restore the Premises to substantially the condition in which the
Premises existed on the date hereof. The access rights for
Environmental Work granted herein shall extend to Seller's property
other than the Premises only as specifically agreed to by Seller in
writing.
7.16 XXXXXXX CITY ASBESTOS SURVEY. Within three months following
Closing, Sellers shall at their expense:
7.16.1. Survey the Xxxxxxx City Premises for the presence and
condition of any insulation containing asbestos. Sellers shall provide
notice to Purchaser prior to conducting the survey and shall allow a
representative(s) of Purchaser to accompany Seller's representative(s)
during their conduct of the survey.
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49
7.16.2. Should any of the insulation containing asbestos not
comply with either applicable laws or Seller's applicable standard
found at Sec. 5.4.1 of Seller's Xxxxxxx City Plant Safety Manual which
states: "Any asbestos-containing insulation with apparent surface
damage shall be removed and replaced with a non-asbestos material. If
the surface damage is a small fraction of the total area and removal is
considered to be potentially more hazardous than repair, then, with the
approval of the [APCI Xxxxxxx City] Health and Safety Manager, the
damaged asbestos containing insulation may be repaired," Seller shall
bring the insulation into compliance with the laws or standard. Any
asbestos removed by Seller shall be done in compliance with all
applicable laws.
7.17. XXXXXXX CITY SEWERS. Within nine months following Closing,
Sellers shall, at their expense:
7.17.1. Test all the underground sewers, including any
underground conveyance lines between the production units and the main
sewer line, on the Premises at Xxxxxxx City to determine the integrity
of the lines and if they are free from obstructions and allow free
drainage. The test shall, at a minimum where reasonably possible,
consist of an examination of the sewers' physical condition by use of
video cameras and low pressure hydrostatic testing. At least two weeks
prior to initiating the testing, Seller shall provide Purchaser with a
testing protocol for Purchaser's review and comment. Seller agrees to
incorporate any of Purchaser's reasonable comments.
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50
7.17.2 Sellers shall repair or replace any portions of the
sewers found to contain cracks, be leaking, or fail the hydrostatic
test and shall repair any plugged lines. Any replacement lines must
have comparable capacity and be able to provide long-term integrity.
Notwithstanding 7.17.1, at Seller's option, Seller may forego testing
of portions of the sewers and repair or replace them.
7.17.3. Any routine Releases from the sewers between Closing
and completion of the project described in 7.17.1 and .2 shall be
considered Releases that occurred prior to Closing for purposes of
Article 14 of this Agreement. Such routine Releases shall not include
extraordinary Releases caused by Purchaser or its agents including but
not limited to Releases due to Purchaser's damage to the sewers.
7.17.4. Sellers shall be responsible for conducting the sewer
testing, repair, and/or replacement in compliance with all applicable
laws, including any notification provisions. Purchaser agrees to
provide Seller and its contractors and agents with necessary access to
the Premises to undertake and complete such testing, repairs and/or
replacement and to cooperate with Seller and its contractors and agents
in scheduling and completing the work.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER
The obligation of the Purchaser to proceed with the Closing hereunder
is, at the option of the Purchaser, subject to the satisfaction of the following
conditions on the Closing Date:
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8.1. LEGAL MATTERS. All actions, proceedings, instruments and documents
required of Sellers to carry out this Agreement or incidental hereto, and all
other related legal matters, shall be reasonably satisfactory to counsel for the
Purchaser.
8.2. REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by the Air Products in this Agreement shall be true and correct (with
respect to those representations and warranties not containing materiality
exceptions or qualifications, in all material respects) on and as of the Closing
Date with the same effect as though made on and as of the Closing Date.
8.3. COVENANTS AND AGREEMENTS. All the terms, covenants, agreements and
conditions of this Agreement to be complied with and performed by the Sellers on
or before the Closing Date shall have been complied with and performed in all
material respects.
8.4. OFFICER'S CERTIFICATE. The Purchaser shall have received
certificates of appropriate officers of Air Products to the effect of Sections
8.2 and 8.3 hereof.
8.5. LITIGATION. No statute, rule, regulation or injunction shall be in
effect prohibiting and no action, suit, proceeding or investigation by any
Governmental Entity of competent jurisdiction shall have been instituted or
threatened to restrain, prohibit or invalidate any of the transactions
contemplated by this Agreement.
8.6. CONSENTS. There shall have been received all consents, waivers and
approvals from all Governmental Entities necessary for the consummation of the
transactions contemplated hereby and from those parties necessary for the
assignment of the contracts listed on Schedule 8.6 hereof (unless and except for
those contracts with respect to which Sellers are able to provide
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52
the full economic benefit of such contracts to Purchaser under Section 7.5
without additional cost to Purchaser).
8.7. ENABLING AGREEMENTS. The appropriate Sellers shall have executed
the respective Enabling Agreements.
8.8. TECHNOLOGY LICENSE. Air Products shall have executed the
Technology License.
8.9. APP/WPS AGREEMENTS. The term of Sellers' polyvinyl alcohol
contracts (i) with Air Products Polymers, L.P. ("APP") and Wacker Polymer
Systems GmbH & Co. KG ("WPS") shall have been extended until September 30, 2003,
or (ii) with APP shall have been extended to September 30, 2004 and with WPS
shall have been extended until September 30, 2002. The extensions shall be in
writing and signed by the parties.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS.
The obligation of the Sellers to proceed with the Closing hereunder is,
at the option of Air Products, subject to the satisfaction of the following
conditions on the Closing Date:
9.1. LEGAL MATTERS. All actions, proceedings, instruments and documents
required of Purchaser to carry out this Agreement or incidental hereto, and all
other related legal matters, shall be reasonably satisfactory to counsel for the
Sellers.
9.2. REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by the Purchaser in this Agreement shall be true and correct (with respect
to those representations
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53
and warranties not containing materiality exceptions or qualifications, in all
material aspects) on and as of the Closing Date with the same effect as though
made on and as of the Closing Date.
9.3. COVENANTS AND AGREEMENTS. All the terms, covenants, agreements and
conditions of this Agreement to be complied with and performed by the Purchaser
on or before the Closing Date shall have been complied with and performed in all
material respects.
9.4. OFFICER'S CERTIFICATE. The Sellers shall have received
certificates of appropriate officers of the Purchaser to the effect of Section
9.2 and 9.3 hereof.
9.5. LITIGATION. No statute, rule, regulation or injunction shall be in
effect prohibiting and no action, suit, proceeding or investigation by any
Governmental Entity of competent jurisdiction shall have been instituted or
threatened to restrain, prohibit or invalidate any of the transactions
contemplated by this Agreement.
9.6. CONSENTS. There shall have been received all consents, waivers and
approvals from all Governmental Entities necessary for the consummation of the
transactions contemplated hereby and from those parties necessary for the
assignment of the contracts listed on Schedule 9.6 hereof (unless and except for
those contracts with respect to which Sellers are able to provide the full
economic benefit of such contracts to Purchaser under Section 7.5 without
additional cost to Purchaser).
9.7. ENABLING AGREEMENTS. The Purchaser shall have executed and
delivered each of the Enabling Agreements.
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54
9.8. TECHNOLOGY LICENSE. Purchaser shall have executed the Technology
License.
10. EMPLOYEES.
10.1. Purchaser shall offer to hire all Employees actively at work or
available for work on the Closing Date; provided however, Purchaser, at its sole
discretion, may decline to hire up to 10 hourly Employees located at the Xxxxxxx
City site. All such Employees who are hired by Purchaser shall be retained by
Purchaser for a period of 12 months following the Closing Date, unless earlier
separated for cause. Sellers shall not directly or indirectly employ or rehire
any Employee without Purchaser's consent for a period of 12 months after the
Closing Date.
10.2. As of the Closing, all Employees employed by Purchaser on the day
after the Closing Date initially shall receive a base salary or hourly wage at
least equal to his or her base salary or hourly wage level in effect on the
Closing Date.
10.3. Purchaser shall extend, on the day after the Closing Date,
Purchaser's then-existing employee welfare benefit plans and employee pension
benefit plans, both as defined in Section 3 of ERISA, to all such Employees;
provided that the only transferred Employees who may become eligible to
participate in Purchaser's Retirement Medical Plan are those transferred
Employees who, as of the Closing, will not have an entitlement for benefits
under any retirement medical plan of Sellers or their Affiliates. Except with
respect to Purchaser's Retirement Medical Plan to the extent described in the
preceding sentence, Purchaser shall recognize the transferred Employees' prior
service with Sellers and their Affiliates for purposes of eligibility, vesting
and benefit accrual in Purchaser's employee welfare benefit plans and employee
pension benefit
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55
plans, provided that Purchaser shall be entitled to subtract from the benefit
amount due to Employees under its employee pension benefit plan an amount equal
to the benefit amount such Employees would have been entitled to receive under
Sellers' employee pension benefit plan had the Employee commenced receipt of
pension payments under the Sellers' employee pension benefit plan at the same
time as the Employee commenced receipt of pension payments under the Purchaser's
employee pension benefit plan. Purchaser shall allow Employees with vacation
earned for 2000 but unused as of the Closing Date to use such vacation, up to a
maximum of 4 weeks, prior to the end of the year. Purchaser shall (i) cause its
group health plans to cover transferred Employees and dependents of transferred
Employees who are covered under Seller's Air Products Medical Plan as of the day
after the Closing Date and to assume full liability for expenses incurred by
such Employees and dependents after the Closing Date; (ii) waive proof of
insurability requirements for both basic and optional benefit coverage under its
group health plans or other group insurance welfare benefit plans; (iii) credit
deductible payments and co-insurance payments made by Employees under Seller's
group health plans on or prior to the Closing Date in 2000 towards deductibles
and stop losses in effect for its group health plans for 2000; (iv) waive all
pre-existing condition clauses in its group health plans for Employees; and (v)
waive eligibility waiting periods for Employees for any employee benefit plans
maintained by Purchaser after the Closing Date. For purposes of the preceding
sentence, "group health plan" shall have the meaning set forth in Section
5000(b)(1) of the Code.
10.4. Except as may be provided under the applicable Plans of Purchaser
or its Affiliates with respect to the termination of a transferred Employee's
employment after the Closing, but
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56
subject to Sections 10.1 and 10.3 of this Article 10, neither Purchaser nor its
Affiliates shall be obligated to provide any severance or separation pay
benefits to any Employee on account of any termination of the Employee's
employment (whether before, upon, or after the Closing) or be responsible for
any pre-Closing salary or payroll payments to such Employees, and such benefits
(if any) or salary and payroll payments shall be payable by Sellers or their
Affiliates.
10.5. Except as provided in the immediately following sentence, Sellers
or their Affiliates shall be responsible for providing such "continuation
coverage" (within the meaning of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended ("COBRA")) as is required pursuant to COBRA in respect
of any Employee who incurs a "qualifying event" (as such term is defined in
COBRA) either before, upon or after the Closing. Notwithstanding the foregoing
sentence, Purchaser shall be responsible for providing such continuation
coverage as is required under COBRA in respect of any Transferred Employee who
incurs a qualifying event after the Closing or who incurs such a qualifying
event prior to the Closing as to which notice is not provided to the Sellers or
their Affiliates until after the Closing.
10.6. Notwithstanding the foregoing, any obligation imposed on
Purchaser under this Article 10 shall be subject to the terms of any collective
bargaining agreement to which the Purchaser may be subject.
11. BROKERAGE
Each party hereto hereby agrees to indemnify and hold harmless the
other against and in respect of any liability, cost or expense resulting from
any agreement, arrangement or
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57
understanding made by such party with any third party for brokerage or finders
fees or other commissions relative to this Agreement or the transactions
contemplated hereby. Air Products acknowledges that it has retained Xxxxxxx,
Xxxxx & Co. in connection with this Agreement.
12. EXPENSES
Except as otherwise provided herein, each party hereto shall bear all
expenses incurred by it in connection with this Agreement and the consummation
of the transactions contemplated hereby, including, without limitation, all
compensation and expenses of their respective counsels, actuaries and
accountants.
13. TAXES
13.1. The parties understand and agree that there will be added to the
Purchase Price any excise, use, value added or sales tax, now or hereafter
imposed by or under the authority of any federal, state or local law, rule or
regulation with respect to the purchase of the Purchased Assets by the
Purchaser. The Purchaser expressly authorizes the Sellers to collect and remit
such taxes as may be required by any applicable laws. If the purchase of any
Purchased Assets is exempt from sales or use tax, the Purchaser shall furnish
the Sellers with a valid exemption certificate in form and content acceptable to
the Sellers.
13.2. The Purchaser shall be responsible for and shall pay any and all
transfer, stamp, documentary, title and recording taxes or fees applicable to
the transfer of the Purchased Assets under this Agreement, with the exception of
the Kentucky Real Estate Transfer tax which will be split evenly between the
Purchaser and Air Products. Air Products shall undertake any action
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necessary to report and pay such Real Estate Transfer Tax, and shall promptly
thereafter issue an invoice to Purchaser reflecting Purchaser's one half of said
Real Estate Transfer Tax, which amount Purchaser shall promptly reimburse to Air
Products.
13.3. Real and personal property taxes applicable to any of the
Purchased Assets, including but not limited to any payments made under an
Industrial District Agreement or any similar agreement under which amounts are
paid to a Governmental Entity in lieu of property taxes, shall be prorated
between the parties hereto as of the Closing Date.
13.4. Sellers shall be liable for, and shall indemnify and hold
Purchaser harmless from and against, any Tax liability imposed or incurred with
respect to the Purchased Assets for all taxable periods (or any portion thereof)
before the Closing Date, other than Taxes described in Section 13.3.
13.5. Purchaser shall be liable for, an shall indemnify and hold
Sellers harmless from and against, any Tax liability imposed or incurred with
respect to the Purchased Assets for all taxable periods (or any portion thereof)
after the Closing Date, other than Taxes described in Section 13.3.
14. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
14.1. The representations, warranties, covenants and agreements
contained in this Agreement and the certificates delivered pursuant to this
Agreement shall survive the Closing, but shall be subject to all limitations and
other provisions relating thereto contained in this Agreement. Such
representations, warranties, covenants and agreements contained herein are
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59
exclusive, and the parties hereto confirm that they have not relied upon any
other representations, warranties, covenants and agreements as an inducement to
enter into this Agreement or otherwise. Following the Closing, and except with
respect to the Enabling Agreements and the remedies provided therein and to the
extent provided in the parenthetical of the succeeding sentence, the remedies
provided in this Article 14 shall be the sole recourse of all parties hereto for
all claims, liabilities, losses, damages, costs and expenses related to or
arising, at law, under any statute or in equity (including but not limited to
those arising under any Environmental Laws), or otherwise, directly or
indirectly, out of this Agreement or the transactions contemplated hereby. In
furtherance of the foregoing, each party hereto waives, from and after the
Closing, to the fullest extent permitted by law, any and all rights, claims,
actions or causes of actions (other than claims of, or causes of action arising
from, fraud and, with respect to those matters which are subject to indemnity
under Sections 14.2.3 and 14.5.4, the right to implead the other party in a
third-party action) it may have against the other party hereto relating to the
subject matter of this Agreement other than the remedies expressly provided in
this Article 14. The foregoing is not intended to limit the parties' rights or
remedies against each other for tortious or other wrongful conduct against the
other with respect to actions taken by any of them (other than in performing
those covenants and agreements contained in this Agreement) after the Closing
Date.
14.2. Subject to Sections 14.3 and 14.4 and (with respect only to third
party claims or actions) 14.8 hereof, Sellers agree to defend, indemnify and
hold harmless Purchaser and its Affiliates and their respective officers and
directors and the respective successors and permitted
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60
assigns of each of them against and in respect of any costs (including but not
limited to reasonable costs of compliance), damages (including but not limited
to claims for natural resource damages, remediation, response and investigation,
whether brought in law or at equity), losses, expenses, penalties or other
liabilities (including legal and other expenses incurred in investigating and
defending any claims or deficiencies) BUT NOT INCLUDING INCIDENTAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION
BUSINESS INTERRUPTION, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES
(collectively, "Losses") incurred by Purchaser or any of its Affiliates or any
of their respective officers and directors and the respective successors and
permitted assigns of each of them, in connection with the ownership or operation
of the Purchased Assets or the PVA Business and to the extent resulting or
arising from:
14.2.1. a breach of any of the representations, warranties,
covenants or agreements (other than the Enabling Agreements) made or to
be performed by Sellers or their successors pursuant to this Agreement
or in any certificate or instrument delivered pursuant hereto, it being
understood that for purposes of this subsection 14.2.1, materiality
exceptions and qualifications set forth in any representation or
warranty contained in this Agreement other than Section 5.7, 5.9 and
5.11 shall be disregarded;
14.2.2. (i) any activity or condition in violation of
Environmental Laws at the time of Closing including but not limited to
noncompliance with regulations and permits but only to the extent that
any such noncompliance occurred or existed prior to Closing.
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With respect to claims made by Purchaser, this subsection
shall apply only to those for which Seller was provided with
written notice within one year of the date of Closing, and
with respect to claims by third parties, this subsection shall
apply only to those for which Seller was provided with written
notice within seven years of the date of Closing;
(ii) any claim, demand or obligation under
Environmental Laws made by a third party (including a
Governmental Entity) without Unreasonable Contact from
Purchaser-Affiliated Parties and arising from any Release of a
Hazardous Substance or Environmental Condition affecting the
Premises due to the activities or operations of Seller or a
Seller-Associated Party on a site adjacent to or in the
vicinity of the Premises at any time either before or after
Closing, or Hazardous Substances sent from the real property
or facilities used by Seller prior to the date of Closing
(including any off-site transportation, treatment, storage or
disposal of a Hazardous Substance on or prior to the Closing
Date that may create Superfund or similar remediation
responsibility).
(iii) with respect to the Premises at Xxxxxxx City,
Kentucky, any claim, demand, or obligation under Environmental
Laws (or related equitable claims) made by a third party
(including a Governmental Entity) without Unreasonable Contact
from Purchaser-Associated Parties and arising from any Release
of a Hazardous Substance or Environmental Condition on the
Premises demonstrated by a preponderance of the evidence to
have occurred or existed prior to Closing;
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(iv) with respect to the Premises at Xxxxxxx City,
Kentucky, any claim, demand, or obligation under Environmental
Laws (or related equitable claims) made by a third party
(including a Governmental Entity) without Unreasonable Contact
from a Purchaser-Associated Party and arising from any Release
or Environmental Condition not demonstrated to occur prior to
Closing (which would be Seller's responsibility) or after
Closing (which would be Purchaser's responsibility)
(hereinafter "Undemonstrated Environmental Incident") but
subject to the following:
1. 100% of any Undemonstrated Environmental
Incident claimed by Purchaser during the
first ten years following the Closing Date;
2. 29/40th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
eleventh year following the Closing Date;
3. 29/41st of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twelfth year following the Closing Date;
4. 29/42nd any Undemonstrated Environmental
Incident claimed by Purchaser during the
thirteenth year following the Closing Date;
5. 29/43rd of any Undemonstrated Environmental
Incident claimed by Purchaser during the
fourteenth year following the Closing Date;
6. 29/44th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
fifteenth year following the Closing Date.
7. 29/45th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
sixteenth year following the Closing Date;
8. -29/46th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
seventeenth year following the Closing Date;
9. -29/47th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
eighteenth year following the Closing Date;
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63
10. -29/48th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
nineteenth year following the Closing Date;
11. -29/49th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twentieth year following the Closing Date;
12. 29/50th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twentieth year following the Closing Date;
13. -29/51st of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twenty-first year following the Closing
Date;
14. -29/52nd of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twenty-second year following the Closing
Date;
15. -29/53rd of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twenty-third year following the Closing
Date;
16. -29/54th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twenty-fourth year following the Closing
Date;
17. -29/55th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twenty-fifth year following the Closing
Date;
18. -29/56th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twenty-sixth year following the Closing
Date;
19. -29/57th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twenty-seventh year following the Closing
Date;
20. -29/58th of any Undemonstrated Environmental
Incident claimed by Purchaser during the
twenty-eighth year following the Closing
Date;
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64
21. -29/59th of any Undemonstrated Environmental
Incident claimed by Purchaser in writing
during the thirtieth year following the
Closing Date;
Thereafter Purchaser shall be fully responsible and indemnify
Seller for all Undemonstrated Environmental Releases as
provided for at Sec. 14.5.2 (v) below. Claims made under this
subsection shall be in writing and the percentage at the time
of initial written notification shall apply to all associated
elements of the Loss that has been asserted by third parties
at the time of initial written notification.
(v) with respect to the Premises at Pasadena, Texas,
any claim, demand, or obligation under Environmental Laws (or
related equitable claims) made by a third party (including a
Governmental Entity) without Unreasonable Contact from a
Purchaser-Associated Party arising from, for soil and
groundwater, any Release of a Hazardous Substance or
Environmental Condition on the Premises shown by the Phase II
Environmental Site Assessment described at Sec. 7.15.2 above,
or for other than soil or groundwater, any Release of a
Hazardous Substance shown by a preponderance of the evidence
to have occurred or existed prior to Closing.
14.2.3. except for matters which are covered by subsection
14.2.2 above, and except as may be otherwise provided in the Enabling
Agreements, any claim, demand or condition asserted before or after the
Closing Date with respect to the PVA Business or Sellers' (or any
predecessors thereto) operation of the PVA Business or the Purchased
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Assets, arising out of events or conditions occurring prior to Closing,
except for the Assumed Liabilities.
The obligations of each of the Sellers hereunder shall bind
the successors and assignees of each such Seller.
14.3. Sellers' obligations to defend, indemnify and hold harmless under
Section 14.2 shall apply to a Claim Notice given pursuant to Section 14.8 within
the following periods:
Section 14.2.1 December 31, 2002.
Section 14.2.2 No time limit.
Section 14.2.3 10 years after the Closing Date.
14.4. Sellers' obligations to defend, indemnify and hold harmless under
Sections 14.2.1 or 14.2.3 shall apply only after Purchaser and the other persons
entitled to indemnity under this Article 14 have suffered Losses in excess of an
aggregate of two million dollars ($2,000,000), and then only to the extent that
the aggregate Losses exceed such two million dollars ($2,000,000). Sellers'
obligations under this Article 14 shall apply only to any individual Loss that
shall exceed twenty-five thousand dollars ($25,000). In any event, Sellers'
obligations under subsections 14.2.1 and 14.2.3 shall cease when the aggregate
amount of Losses indemnified hereunder equals fifty percent (50%) of the
Purchase Price (as adjusted pursuant to Article 3); provided, however, the
foregoing monetary limit of fifty percent (50%) shall be reduced
dollar-for-dollar for any amounts expended by Sellers is satisfaction of their
obligations under subsection 14.2.2. Any
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claim which is within the description of subsection 14.2.1 and which is also
within the description of subsection 14.2.2 shall be deemed to be asserted and
treated hereunder for all purposes as a claim arising out of subsection 14.2.2.
The limitations in Section 14.3 and in this Section 14.4 on Sellers' obligation
to defend, indemnify and hold harmless do not apply to a breach of Sellers'
representation in Section 5.21 or to a breach of Sellers' covenant in Section
7.3.
14.5. Subject to Sections 14.6 and 14.7 and (with respect only to third
party claims and actions) Section 14.8 hereof, Purchaser agrees to defend,
indemnify and hold harmless Sellers and any of their Affiliates and any of their
respective officers and directors and the respective successors and permitted
assigns of each of them against and in respect of any Losses resulting or
arising from:
14.5.1. a breach of any of the representations, warranties,
covenants or agreements (other than the Enabling Agreements) made or to
be performed by Purchaser or its successors pursuant to this Agreement
or in any certificate or instrument delivered pursuant hereto, it being
understood that for purposes of this Section 14.5.1, all materiality
exceptions and qualifications set forth in any representation or
warranty of Purchaser contained in this Agreement shall be disregarded;
and
14.5.2. (i) any activity or condition in violation of
Environmental Laws including but not limited to noncompliance with
regulations and permits to the extent that any such noncompliance
occurs or exists after Closing;
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(ii) any claim, demand or obligation under Environmental Laws
made by a third party (including a Governmental Entity) without any
Unreasonable Contact from any Seller-Associated Party and arising from
any Release of a Hazardous Substance sent from any of the facilities or
real property used by Purchaser after Closing (including any off-site
transportation, treatment, storage or disposal of a Hazardous Substance
on or after the Closing Date that may create Superfund or similar
remediation responsibility);
(iii) with respect to the Premises at Xxxxxxx City, Kentucky,
any claim, demand or obligation under Environmental Laws (or related
equitable claims) made by a third party (including a Governmental
Entity) without any Unreasonable Contact from any Seller-Associated
Party and arising from any Release of a Hazardous Substance or an
Environmental Condition on the Premises, or a Release of a Hazardous
Substance or Environmental Condition by Purchaser that affects Seller's
property, activities or operations in the vicinity of the Premises,
that is demonstrated by a preponderance evidence to occur or originate
after Closing or to contribute to Seller's Loss after Closing;
(iv) with respect to the Premises at Xxxxxxx City, Kentucky,
any and all Undemonstrated Environmental Incidents for which Seller is
not liable pursuant to Section 14.2.2(v) above;
(v) with respect to the Premises at Pasadena, Texas, any claim
demand, or obligation under Environmental Laws (or related equitable
claims) made by a third party
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(including a Governmental Entity) without any Unreasonable Contact from
Seller-Associated Party and arising from an Environmental Release or
Environment Condition not shown on the Phase II Environmental Site
Assessment described at Sec. 7.15.2, or for other than soil or
groundwater, any Environmental Release or Environmental Condition shown
by a preponderance of the evidence to have occurred or originated after
Closing.
14.5.3. any claim of wrongful termination, constructive
discharge or wrongful discharge asserted by an employee hired by
Purchaser who is terminated or severed by Purchaser or any of its
Affiliates after the Closing Date, except to the extent shown to be
caused by Sellers' actions prior to Closing; or
14.5.4. except for matters which are covered by subsection
14.5.2 above, and except as may be otherwise provided in the Enabling
Agreements, any claim, demand or condition asserted before or after the
Closing Date with respect to the PVA Business (or any successor to the
PVA Business) (including without limitation the Assumed Liabilities) or
Purchaser's (or any successor's thereto) operation of the PVA Business
or the Purchased Assets, arising out of events or conditions occurring
on or after the Closing Date.
The obligations of Purchaser hereunder shall bind the
successors and assignees of Purchaser.
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14.6. Purchaser's obligation to defend, hold harmless and indemnify
under Section 14.5 shall apply to a Claim Notice given pursuant to Section 14.8
within the following periods:
Section 14.5.1 December 31, 2002.
Section 14.5.2 No time limit.
Section 14.5.3 Two (2) years after the Closing Date.
Section 14.5.4 Ten (10) years after the Closing Date.
14.7. Purchaser's obligation to defend, indemnify and hold harmless
under Sections 14.5.1 and 14.5.4 shall apply only after Seller and the other
persons entitled to indemnity under this Article 14 have suffered Losses in
excess of an aggregate of two million dollars ($2,000,000), and then only to the
extent that the aggregate Losses exceed two million dollars ($2,000,000).
Purchaser's obligation under this Article 14 shall apply only to any individual
Loss that shall exceed twenty-five thousand dollars ($25,000). In any event,
Purchaser's obligation under subsections 14.5.1, 14.5.2 or 14.5.3 shall cease
when the aggregate amount of Losses indemnified hereunder equals fifty percent
(50%) of the Purchase Price (as adjusted pursuant to Article 3). Any claim which
is within the description of subsection 14.5.1 and which is also within the
description of any of subsections 14.5.2, 14.5.23 or 14.5.34 shall be deemed to
be asserted and treated hereunder for all purposes as a claim arising out of
14.5.2 through 14.5.34, as appropriate.
14.8. Whenever either party becomes aware that any claim is threatened
or asserted against it that would occasion the indemnification described in this
Article 14 ("Covered Claim"), such party shall promptly provide the other party
with a notice (a "Claim Notice") of such
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Covered Claim pursuant to the provisions of Article 18 hereof. Failure to give
such notice shall not affect the indemnification obligations hereunder in the
absence of actual prejudice. Each Claim Notice shall describe the Covered Claim,
the party threatening or asserting it, the relief sought, and the basis for
indemnification hereunder with respect thereto. The party receiving such notice
may, at its option, assume the defense of such Covered Claim (the "Assuming
Party"), provided that, within forty (40) days after the Claim Notice is given,
the party receiving such notice shall have given notice to the other party (the
"Notifying Party"), pursuant to the provisions of Article 18 hereof, of its
election to assume such defense. If the defense is so assumed by the Assuming
Party, the Notifying Party shall be entitled to participate in (but not control,
which shall be solely the Assuming Party's right if the Assuming Party assumes
the defense) the defense of the Covered Claim with its own counsel at its own
expense, and the Notifying Party shall provide such cooperation (including but
not limited to providing available information and personnel to the Assuming
Party) as the Assuming Party shall reasonably request to facilitate such
defense. The Assuming Party shall have the right to defend and/or settle any
such Covered Claim on such terms and conditions and in such amounts as it deems
appropriate, and the Notifying Party shall promptly execute all documents
reasonably requested of it with respect to any such defense and/or settlement;
provided, however, any such settlement shall include an unconditional release by
the claimant of all indemnified persons with respect to such Covered Claim. If
the party receiving the notice does not assume the defense of a given Covered
Claim pursuant hereto, the party giving the notice shall defend against such
Covered Claim in such manner, and/or settle such Covered Claim on such terms, as
it shall, in its sole reasonable
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judgment, determine to be appropriate under the circumstances and such action
shall be binding on the parties for the purposes of this Article 14.
15. TERMINATION OF AGREEMENT
15.1. This Agreement and the transactions contemplated hereby may be
terminated or abandoned at any time prior to the Closing Date as follows:
15.1.1. upon the written agreement of Air Products and
Purchaser;
15.1.2. by Purchaser, if there has been a material breach of a
representation or warranty in this Agreement by Air Products, or a
material breach by Air Products of any covenant set forth herein or a
failure of any condition to which the obligations of Purchaser
hereunder are subject, and such breach or failure has not been waived;
15.1.3. by Air Products, if there has been a material breach
of a representation or warranty in this Agreement by Purchaser, or a
material breach by Purchaser of any covenant set forth herein or a
failure of any condition to which the obligations of Air Products
hereunder are subject, and such breach or failure has not been waived;
or
15.1.4. by either Air Products or Purchaser, if the Closing
Date shall not have occurred before December 31, 2000, for any reason
other than the failure of the party seeking to terminate this Agreement
to perform its obligations hereunder or a breach of a representation or
warranty by such party herein.
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15.1.5. If this Agreement shall be terminated pursuant to
Section 15.1 neither party shall have any further obligation to the
other, except as set forth in Sections 7.2.1 and 12; provided, however,
that if Air Products or Purchaser shall have the right to terminate
this Agreement pursuant to subsection 15.1.2 or 15.1.3 (for other than
a breach of a representation or warranty), it is expressly understood
and agreed that the terminating party's right to pursue all legal
remedies for breach of contract and damages shall survive such
termination unimpaired.
16. BULK SALES LAW
The Purchaser hereby waives compliance by the Sellers with the
provisions of the bulk sales law of any state. Seller shall bear, and hold
Purchaser harmless from, any and all liability arising from such non-compliance.
17. PUBLIC ANNOUNCEMENTS
No press release or other public announcement shall be made by or on
behalf of either party hereto concerning this Agreement or the transactions
contemplated hereby without obtaining the prior approval of the other parties
(which approval will not be unreasonably withheld or delayed), except as may be
required by applicable law or the regulations of any securities exchange).
18. NOTICES
All notices and all other communications hereunder shall be in writing
and shall be deemed given if delivered personally or sent by registered or
certified mail (return receipt
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requested), telecopied (which is confirmed) or sent by courier to a party at the
following address (or at such other address for a party as shall be specified by
like notice):
18.1. if to Sellers, to Air Products and Chemicals, Inc., 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, XX 00000-0000, Attention of the Corporate Secretary, copy
to Group Vice President Chemicals, telecopy: 000-000-0000;
18.2. if to Purchaser, to Celanese Ltd., c/o Celanese Americas
Corporation, 00 Xxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention of President:
19. EXTENSIONS AND WAIVERS
This Agreement may not be varied in any respect except by an instrument
in writing of even or subsequent date hereto duly executed by the parties
hereto. The parties hereto may, by such an instrument, among other things, (a)
extend the time for the performance of any of the obligations or other acts of
the parties hereto, (b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any documents delivered pursuant to
this Agreement and (c) waive compliance with or modify any of the covenants or
agreements contained in this Agreement and waive or modify performance of any of
the obligations of either of the parties hereto.
20. ENTIRE AGREEMENT.
This Agreement contains all the terms agreed upon between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
arrangements and communications, whether oral or written.
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21. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the Commonwealth of Pennsylvania, without giving effect to the
choice of law principles thereof.
22. HEADINGS
The headings of the Articles and Sections of this Agreement are for
convenience of reference only and shall not be deemed to explain, limit or
amplify the provisions hereof.
23. TRANSFERABILITY
The respective rights and obligations of each party hereto shall not be
assignable by such party without the written consent of the other parties, which
consent will not be unreasonably withheld, except that any party without such
consent may assign its rights under this Agreement to (a) any wholly owned
subsidiary of such party or (b) any successor in the event of a merger,
consolidation, sale of all or substantially all of its assets, liquidation or
dissolution (provided any such assignee pursuant to the foregoing clause (a) or
(b) executes and delivers to such other parties an agreement satisfactory in
form and substance to such other parties under which such assignee assumes and
agrees to perform and discharge all the obligations and liabilities of the
assigning party), but any such permitted assignment shall not relieve the
assigning party of its obligations hereunder. Purchaser may assign its rights to
receive indemnification payments to any of its lenders as collateral security.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted assignees. Nothing herein express or
implied is intended to confer upon any person other than
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the parties hereto and their respective permitted assignees, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
24. KNOWLEDGE OF SELLERS
When used in this Agreement, the term "to the knowledge of" Air
Products or Sellers shall mean the actual knowledge of those persons listed on
Schedule 24, or the knowledge such person should have had after reasonable
inquiry by such persons in the ordinary performance of their usual duties.
25. COUNTERPARTS
This Agreement may be executed in any number of counterparts with the
same effect as if the signatures to each such counterpart were upon the same
instrument.
26. SEVERABILITY
Any term or provision of this Agreement that is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable
in any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction. If the final judgment of a court of competent
jurisdiction or other authority declares that any term or provision hereof is
invalid, void or unenforceable, the parties agree that the court making such
determination shall have the power to reduce the scope, duration, area or
applicability of the term or provision, to delete specific words or phrases, or
to replace any invalid, void or unenforceable term or provision with a term or
provision that is valid
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and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision.
27. CAC/CNA
The parties acknowledge and agree that CAC and CNA are hereby deemed to
be parties to the Agreement for the sole purpose of the enforcement of Article
14 after the Closing. More specifically, CAC and CNA are deemed to have the same
obligations and liabilities to Sellers under Article 14 as if each were the
Purchaser, but only for purposes of and with respect to the obligations
undertaken in Article 14, which obligations CAC and CNA each acknowledge and
agree they are undertaking and liable for to Sellers. in connection herewith,
CAC and CNA represent and warrant to Sellers, mutatis mutandis, those matters
set forth in Sections 6.2, 6.3 and 6.4 hereof with applicable changes for the
corporate structure of CAC and CNA. It is further understood that CAC and CNA,
as parties to the Agreement for the foregoing purposes and as Affiliates of
Purchaser, are entitled to seek indemnity from Sellers on their own behalf under
Article 14.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
duly executed in its name and on its behalf as of the date first above written.
AIR PRODUCTS AND CHEMICALS, INC.
By:
--------------------------------------
Name:
Title:
AIR PRODUCTS, L.P.
By: Air Products, L.L.C.,
its General Partner
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By:
--------------------------------------
Name:
Title:
CELANESE LTD.
By: Celanese International Corporation,
its General Partner
By:
--------------------------------------
Name:
Title:
CELANESE AMERICAS CORPORATION.
By:
--------------------------------------
Name:
Title:
CNA HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
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