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EXHIBIT 2(a)
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
XXXXXXX & XXXXX, INCORPORATED, OR ASSIGNS
AS BUYER
AND
LACLEDE MID AMERICA, INC.
AND LACLEDE STEEL COMPANY
AS SELLER
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TABLE OF CONTENTS
1. PURCHASE AND SALE.................................................................1
1.1..........................................................."Assets" To Be Sold 1
1.2...............................................................Excluded Assets 3
1.3................................................................Purchase Price 3
1.4................................Payment of Estimated Purchase Price at Closing 3
1.5........................................Determination of Actual Purchase Price 4
1.6.................................................Inventory Valuation Procedure 4
1.7.....................................................Assumption of Liabilities 4
1.8.......................................................Assumption of Contracts 5
2. REPRESENTATIONS AND WARRANTIES OF SELLER AND
SHAREHOLDER.....................................................................5
2.1..................................................................Organization 5
2.2.............................Financial Statements, Obligations and Liabilities 5
2.3.....................................................Absence of Certain Events 5
2.4.........................................................................Taxes 6
2.5.....................................................................Contracts 6
2.6......................................................Receivables and Payables 7
2.7.....................................................................Inventory 7
2.8.........................................................Intellectual Property 7
2.9.................................................................Real Property 8
2.10.............................................Title to and Condition of Assets 9
2.11......................................................Customers and Suppliers 9
2.12....................................................................Employees 9
2.13.......................................................Employee Benefit Plans 10
2.14...............................................................Employee Funds 10
2.15.........................................................Compliance With Laws 10
2.16...................................Authorization; Binding Effect; No Conflict 10
2.17...................................................................Litigation 11
2.18............................................................Books and Records 11
2.19........................................................Environmental Matters 11
2.20............................................................Product Liability 12
2.21.........................................................Capital Expenditures 12
2.22...................................................................Affiliates 12
2.23.....................................................Arms-Length Transactions 12
2.24.......................................................Stand-Alone Operations 12
2.25...................................................................Disclosure 13
2.26..............................................Business with Nucor Corporation 13
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3. BUYER'S REPRESENTATIONS AND WARRANTIES...........................................13
3.1.....................................................Organization and Standing 13
3.2.............Authorization; Binding Effect; No Conflict With Other Instruments 13
4. COVENANTS........................................................................14
4.1...................................................................Full Access 14
4.2.......................................................Conduct of the Business 14
4.3....................................Preservation of Business and Relationships 14
4.4...................................................................Exclusivity 14
4.5.............................................Actions to Effect the Transaction 15
4.6...............................................................Title Insurance 15
4.7......................................................................Consents 15
4.8.................................................Sales, Use and Transfer Taxes 15
4.9........................................................Affiliate Transactions 15
4.10...........................................Noncompetition and Confidentiality 15
4.11.....................................................Casualty or Condemnation 16
5. CONDITIONS PRECEDENT TO PERFORMANCE OF BUYER.....................................17
5.1....................................................No Material Adverse Change 17
5.2......................................Opinion of Counsel; Officer Certificates 17
5.3............................................................Third Party Action 17
5.4................................................................Affiliate Debt 17
5.5.................................................................Due Diligence 17
5.6......................................................................Consents 17
5.7.....................................................................Schedules 17
5.8................................License Agreement with Sugita/Royalty Payments 17
5.9........................................................................Survey 18
6. MUTUAL CONDITIONS PRECEDENT TO PERFORMANCE.......................................18
6.1.......................................Representations, Warranties & Covenants 18
6.2.....................................................Approval of Documentation 18
6.3............................................HSR Act; Bankruptcy Court Approval 18
7. CLOSING..........................................................................18
7.1........................................................Closing Date and Place 18
7.2................................Seller's and Shareholder's Closing Obligations 19
7.3...................................................Buyer's Closing Obligations 19
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8. MISCELLANEOUS....................................................................20
8.1........................................................Employment Obligations 20
8.2............................................Governing Law; Situs of Litigation 20
8.3........................................................Exhibits and Schedules 20
8.4................................................Entire Agreement; Construction 21
8.5...........................................................Survival; Knowledge 21
8.6...............................................................Indemnification 21
8.7.............................................Collection of Accounts Receivable 23
8.8....................................................Substitution of Subsidiary 24
8.9................................................................Bulk Sales Law 24
8.10.....................................................Counterparts; Telecopier 24
8.11.....................................................................Expenses 24
8.12.........................................................Public Announcements 24
8.13...................................................Confidentiality Agreements 24
8.14......................................................................Notices 24
8.15.........................................................Post-Closing Actions 25
8.16..................................................................Arbitration 25
8.17...............................................................Binding Effect 25
8.18............................................................Fees and Expenses 25
8.19...................................Specific Performance and Injunctive Relief 25
8.20.................................................................Severability 26
8.21.............................................................Failure or Delay 26
8.22....................................................Amendment or Modification 26
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement"), dated December 5,
2000, is made among LACLEDE MID AMERICA, INC., an Indiana corporation (the
"Seller" or the "Company"), LACLEDE STEEL COMPANY, a Delaware corporation and
the majority shareholder of Seller (the "Shareholder"), and XXXXXXX & XXXXX,
INCORPORATED, a Missouri corporation, or its assigns (the "Buyer").
RECITALS
A. Seller is the owner of a wire mill production facility located
in Fremont, Indiana.
B. Shareholder is the owner of 96.66% of the common voting stock of
Seller.
C. Seller and Shareholder are currently the subject of Chapter 11
bankruptcy proceedings pending in the United States Bankruptcy Court, Eastern
District of Missouri, Eastern Division, known as Case Number 00-00000-000 (the
"Bankruptcy Proceedings").
D. Buyer desires to purchase, and Seller and Shareholder desire to
sell, certain property used in or necessary to the operation of the business of
Seller, which includes but is not limited to the manufacture of high carbon hard
drawn wire, carbon oil tempered wire and alloy oil tempered wire (the
"Business"). Accordingly, in consideration of the premises and other good and
valuable consideration, the parties intending to be legally bound, agree as
follows:
1. PURCHASE AND SALE
1.1 "Assets" To Be Sold. On the Closing Date, Seller shall sell,
convey, assign, deliver and transfer to Buyer, and Buyer shall buy and take
possession of all right, title and interest in and to, all real, personal,
tangible, intangible, contingent and other properties, rights and other assets
of any kind owned by Seller and used or usable in, or necessary to the operation
or administration of, the Business (collectively, the "Assets"), except the
Excluded Assets (as defined in Section 1.2). The Assets include, without
limitation, the following:
(a) Receivables. All accounts, notes and other receivables
which are not due from employees or affiliates of Seller
("Receivables").
(b) Inventories. All raw materials, work-in-process, finished
goods, supplies and parts inventory ("Inventories").
(c) Personal Property. All other tangible personal property
(excluding Inventories) owned ("Tangible Personal Property"), including
without limitation all
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equipment, machinery, tools, vehicles, office furniture and fixtures
described on Schedule 1.1(c).
(d) Real Property. All the real property owned or held,
including without limitation land, leasehold interests, buildings,
improvements, rights-of-way, easements and other real property
interests or rights ("Real Property"), including without limitation
those items set forth on Schedule 1.1(d).
(e) Records. Copies of all accounting and operating ledgers,
assets ledgers, inventory records, budgets, customer lists, customer
credit information, supplier lists, technical data, sales literature,
correspondence, computer printouts, books, notes, files and all other
accounting and operating records and other graphic or electronically
stored operating and financial information ("Records").
(f) Intellectual Property. All trademarks, trade names,
service marks, internet domain names and web sites, copyrights,
patents, patent applications, inventions, formulas, trade secrets,
know-how, designs, processes and similar intangibles ("Intellectual
Property"), including without limitation those items listed on Schedule
1.1(f). Seller agrees that Buyer shall have the right to use the name
"Laclede Mid America" and similar names used in the Business for a
reasonable period of time after the Closing to transition the Business
to Buyer.
(g) Permits. All governmental licenses, permits, variances,
consents and approvals ("Governmental Permits"), including without
limitation those listed on Schedule 1.1(g), to the extent transferable.
(h) Licenses. All rights under licenses to or from third
parties (the "Licenses"), including without limitation those listed on
Schedule 1.1(h).
(i) Purchase Commitments. All rights under customer purchase
orders, including but not limited to those listed on Schedule 1.1(i),
and all rights under those contract commitments or sales contracts with
vendors or suppliers specifically listed on Schedule 1.1(i)
(collectively, the "Purchase Commitments").
(j) Equipment Leases. All rights under those equipment leases
listed on Schedule 1.1(j) (the "Equipment Leases"). Schedule 1.1(j)
contains a list of all leased equipment, machinery, tools, vehicles and
other personal property ("Leased Personal Property") leased pursuant to
the Equipment Leases, which list denotes the type of lease under which
such property is leased (i.e. capital lease, equipment lease, etc.).
(k) Contracts. All rights under those contracts listed on
Schedule 1.1(k) (the "Assumed Contracts"). Schedule 1.1(k) contains
a list of all the Assumed Contracts.
(l) Other. All: (i) interests in any partnership or joint
venture, if any; (ii) business claims and demands of Seller arising
after November 30, 1998; (iii) rights associated with any liability to
be assumed by Buyer under this Agreement; (iv)
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restrictive covenants and other obligations of present and former
employees of Seller; and (v) deposits and prepaid expenses acceptable
to Buyer.
1.2 Excluded Assets. The Assets shall not include the following assets
(the "Excluded Assets"): (i) cash and cash equivalents (other than deposits and
funds included as Assets); (ii) rights of Seller under this Agreement; (iii) Tax
records and returns of Seller; (iv) intercompany receivables; (v) ten (10)
55-gallon oil drums of miscellaneous new and used oils and five (5) totes of an
experimental quench oil; and (vi) those assets described on Schedule 1.2. Seller
agrees that it will remove, prior to Closing, the above-referenced oil drums and
totes.
1.3 Purchase Price. The purchase price (the "Purchase Price") shall be
$24,500,000.00 less the amount of Debt, if any, assumed by Buyer, subject to
adjustment as provided below. The Purchase Price will be adjusted downward, on a
dollar for dollar basis, to the extent the Net Assets at Closing is less than
$19,844,373.00 (the "Target Amount"). "Debt" means all debt, debt equivalents,
and other interest-bearing obligations, including without limitation, prepayment
penalties or premiums, capitalized leases, accrued interest, accounts payable
that bear interest, and all pension obligations. "Net Assets" is equal to the
book value of (i) the Assets minus (ii) Assumed Liabilities. An example
calculation of the Net Assets as of September 30, 2000 is shown on Exhibit 1.3.
The parties shall use their best efforts to agree to an
allocation, no later than 60 days after finalization of the Closing Balance
Sheet (as defined in Section 1.5), of the amount of the Purchase Price plus the
Assumed Liabilities among the Assets in accordance with Section 1060 of the
Internal Revenue Code. To the extent the parties agree to such allocation, Buyer
and Seller each shall file their federal and state income tax returns (and Form
8594, if applicable) on the basis of such allocation. Neither Buyer nor Seller
shall take a tax return position inconsistent with such allocation unless such
position arises from or through an audit or other inquiry or examination by the
Internal Revenue Service or other government authority. In the event that the
parties are unable to agree to an allocation of the amount of the Purchase Price
plus the Assumed Liabilities among the Assets, then, in accordance with Section
1060 of the Code, each party shall separately file their federal and state
income tax returns (and Form 8594, if applicable) on the basis of each party's
allocation.
1.4 Payment of Estimated Purchase Price at Closing. Five business days
prior to the Closing Date, the parties shall jointly prepare an estimate of the
Purchase Price (the "Estimated Purchase Price"), which shall be set out on a
schedule. The Estimated Purchase Price shall be distributed by Buyer at Closing
as follows:
(i) $300,000.00 (the "Holdback Amount") to be withheld by
Buyer pending determination of the post-closing adjustment described
in Section 1.5;
(ii) $300,000.00 (the "Additional Holdback Amount") to be
retained by Buyer for a period of twelve (12) months after Closing to
secure the indemnification obligations of Seller and Shareholder
described in Section 8.6 and the collection of accounts receivable as
described in Section 8.7; and
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(iii) The balance of the Estimated Purchase Price (the "Initial
Payment") to be paid to Seller at Closing by wire transfer of
immediately-available funds, to an account designated by Seller.
1.5 Determination of Actual Purchase Price. Within ninety (90) days
after the Closing Date, the parties will jointly prepare a balance sheet
reflecting the book value of the Assets and the Assumed Liabilities as of the
close of business on the Closing Date (the "Closing Balance Sheet"). The Closing
Balance Sheet will be prepared in accordance with generally accepted accounting
principles ("GAAP") and will be used to calculate the actual Purchase Price. If
the Purchase Price is less than the Estimated Purchase Price, the Holdback
Amount will be reduced and paid to Buyer to the extent of the difference, and
the balance of the Holdback Amount will be paid to the Seller. If the Holdback
Amount is not sufficient to pay the difference, Seller and the Shareholder will
pay the amount of such deficiency in cash and Buyer will be paid the entire
Holdback Amount. If the Purchase Price is greater than the Estimated Purchase
Price, Buyer will pay in cash to the Seller (i) the difference and (ii) the
entire Holdback Amount. In either case the payments owing under this Section 1.5
shall be made within 5 days after final determination of the Net Assets and the
Purchase Price.
1.6 Inventory Valuation Procedure. In preparing the Closing Balance
Sheet, Inventories shall be valued in accordance with GAAP, at the lower of cost
or market. Any items of inventory that are obsolete, defective or not useable or
saleable in the ordinary course of business shall be assigned a salvage or scrap
value. The valuation of Inventories at the Closing is to be based upon the good
faith estimate of Buyer and Seller of the saleable Inventories expected to be on
hand as of the close of business on the Closing Date and is to be adjusted based
on the results of a physical count of the saleable Inventories to be conducted
on the Closing Date. On the Closing Date, Buyer will, at Buyer's expense,
conduct an inventory count for purposes of calculating the Inventories as of the
Closing Date. Seller's representative may also, at Seller's expense, participate
in such count. Verification and valuation of the saleable Inventories shall be
completed within ninety (90) days of Closing as described in Section 1.5.
1.7 Assumption of Liabilities. Buyer shall assume no liabilities,
obligations or duties except (i) normal post-petition trade payables and (ii)
post-petition non-interest bearing accrued liabilities incurred in the ordinary
course of business, all of which will be listed or accrued on the Closing
Balance Sheet (the "Assumed Liabilities"). Other than Assumed Liabilities, Buyer
shall not be liable for, and Buyer does not assume or agree to pay, perform or
discharge any debt, claim, lien, obligation, duty, contract, agreement, tax or
liability, known or unknown, contingent or otherwise of any kind or nature,
including without limitation those relating to the Assets or the Business,
environmental matters, employee benefit plans, labor union matters, employee
severance, pensions, product liability, taxes and the like ("Other Claims").
Seller and the Shareholder hereby indemnify Buyer against any and all Other
Claims.
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1.8 Assumption of Contracts. On the Closing Date, Buyer shall also
assume Seller's obligations and duties under the Purchase Commitments, the
Equipment Leases and the Assumed Contracts.
2. REPRESENTATIONS AND WARRANTIES OF SELLER AND SHAREHOLDER
Seller and Shareholder, jointly and severally, make the following
representations and warranties to Buyer on the date hereof:
2.1 Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of Indiana. Seller is duly
qualified and in good standing in each jurisdiction where the conduct of its
business requires it to be so qualified, all of which jurisdictions are listed
on Schedule 2.1.
2.2 Financial Statements, Obligations and Liabilities. "Financial
Statements" means the following financial statements of the Seller: (i) the
unaudited annual statements for the fiscal years ending December 31, 1996,
December 31, 1997, the nine months ending September 30, 1998, and the fiscal
year ending September 30, 1999, and (ii) unaudited interim statements attached
as Schedule 2.2A for the 12 month period beginning October 1, 1999, and ending
September 30, 2000, and the one month period beginning October 1, 2000 and
ending October 31, 2000. Except as set forth on Schedule 2.2B, the Financial
Statements (i) were prepared in the ordinary course of business from the regular
financial books and records of the Seller in accordance with generally accepted
accounting principles ("GAAP") consistently followed throughout the periods
indicated (provided that the unaudited statements are subject to normal year end
adjustments which would not be material in amount or effect and do not include
notes) and (ii) present fairly the financial position, results of operations,
and cash flows of the Seller at the dates and for the periods indicated.
Seller has no debt, liability or obligation (whether accrued, absolute,
contingent, by guarantee, indemnity or otherwise) nor has there been any
occurrence which involves potential liability of the Seller, in any case where
any such debt, liability or obligation could validly be asserted against Buyer,
except those (i) disclosed in the Financial Statements or (ii) incurred in the
ordinary course of business since the date of the most recent balance sheet
included in the Interim Statements (the "Interim Balance Sheet Date"), which
liabilities do not relate to any breach of contract, breach of warranty, tort
infringement, product liability, environmental matter or any alleged violation
of law. All debts included with the Assumed Liabilities may be prepaid at any
time without penalty or premium.
2.3 Absence of Certain Events. Since January 1, 2000 (i) Seller has
conducted the Business only in the ordinary and usual course in the context of
the Bankruptcy Proceedings and in substantially the same manner as previously
conducted during the pendency of the Bankruptcy Proceedings; and (ii) there has
not been any event, circumstance or condition that has had, or is reasonably
likely to have, a material adverse effect on the financial condition, business,
cash flow, assets, liabilities or prospects of the Business.
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2.4 Taxes. Except as provided in Schedule 2.4, within the times and in
the manner prescribed by law, Seller has filed all Tax returns and has withheld
and paid all Taxes due and payable. All Tax returns of Seller provided to Buyer
or its representatives are accurate and complete. The provision made for Taxes
on the Closing Balance Sheet will be sufficient for the payment of all unpaid
Taxes to the extent the failure to pay any such Taxes could result in liability
to Buyer or the imposition of a lien or encumbrance on the Assets. All present
disputes, if any, as to Taxes or any Tax liens on the Assets are set forth and
briefly described on Schedule 2.4 attached hereto and incorporated herein by
reference. There are no outstanding agreements or waivers extending dates for
filing, payment, assessment or reassessment or extending the statutes or other
periods of limitation applicable to any Tax or Tax return of Seller. Except as
provided in Schedule 2.4, there is no legal proceeding, audit, assessment,
reassessment or request for information in progress, pending or threatened
directly involving the business of Seller in respect of taxes nor are there any
issues under discussion with any taxing authority relating to any matters which
could result in claims for additional taxes. None of the Assumed Liabilities is
an obligation to make a payment that will not be deductible under ss.280G of the
Internal Revenue Code of 1986, as amended. Neither the Seller nor the
Shareholder is a party to any Tax allocation or sharing agreement with any party
other than Seller, Shareholder or Laclede Chain Manufacturing Company ("Laclede
Chain"). The Seller has no liability for the taxes of any person or entity,
under Treasury Regulation ss.1.1502-6 (or any similar provision of state, local,
or foreign law), as a transferee or successor, by contract, or otherwise, other
than as a member of an affiliated group of which Shareholder is the common
parent.
"Tax" or "Taxes" means all taxes or liens, including any interest,
fines, penalties or other additions to tax, which the Seller is required to pay,
withhold or collect (including without limitation all income or profits taxes,
payroll and employee withholding taxes, capital taxes, unemployment insurance,
social security or welfare taxes, goods and service taxes, sales and use taxes,
ad valorem taxes, value-added taxes, excise taxes, import and customs duties,
surcharges, franchise taxes, gross receipts taxes, business license taxes,
occupation taxes, real and personal property taxes, assessments, environmental
taxes, transfer taxes, worker's compensation, pension premiums and other
governmental charges, and other similar obligations).
2.5 Contracts. Schedule 2.5 accurately lists and briefly describes all
written and oral contracts, agreements, leases and other legally binding
commitments which individually contemplate or involve total payments by or to
Seller of more than $10,000.00 or the consequences of a default or termination
of which could have a material adverse effect on Seller and in either case have
not been rejected by Seller in connection with the Bankruptcy Proceedings
("Contracts"), separated according to the categories set forth on such Schedule.
Except as set forth on Schedule 2.5(t), all Contracts are valid and in full
force with no default or breach by Seller or Shareholder to such Contracts and,
to the knowledge of Seller and Shareholder, with no default or breach by the
other party to such Contracts. Except as set forth on Schedule 2.5(t), to the
knowledge of Seller and Shareholder, no event, failure, condition or act has
occurred which, with the passage of time or the giving of notice, would result
in a default or breach under any Contract or permit termination, modification or
acceleration of rights or obligations under any Contract. Except as set forth on
Schedule 2.5(t), no defenses,
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offsets or counterclaims have been asserted or, to the knowledge of Seller and
Shareholder, may properly be made by any party under any Contract. Seller has
not waived any rights under any Contract. Except as set forth on Schedule 2.5,
no Contract shall be affected in any manner by the transactions contemplated by
this Agreement.
Seller is not subject to any pending or, to the knowledge of
Seller and Shareholder, threatened termination, non-renewal or premium increase
with respect to any insurance policy listed or required to be listed on Schedule
2.5, and Seller is in compliance with all conditions contained in each policy.
There are no pending claims against such insurance by Seller as to which
insurers are defending under reservation of rights or have denied liability. All
claims under such insurance have been properly filed by Seller.
2.6 Receivables and Payables. Seller's accounts receivable
reflected on the most recent Interim Balance Sheet and arising since the date
thereof are fully collectible in the ordinary course of business consistent with
past practice within one hundred twenty (120) days after billing less, in the
case of receivables appearing on such Interim Balance Sheet, the recorded
allowance for bad debts shown on the Interim Balance Sheet and less, in the case
of receivables arising after the date of the Interim Balance Sheet, the recorded
allowance for bad debts shown on the Closing Balance Sheet. Seller's accounts
receivable (i) represent valid obligations arising from sales actually made in
the ordinary course of business, and (ii) are not subject to valid defenses,
set-offs or counterclaims. Schedule 2.6 accurately lists and ages the accounts
receivable of the Business as of October 31, 2000. Except as set forth on
Schedule 2.6, the Seller has paid all accounts payable in accordance with their
terms. No interest is payable with respect to any portion of accounts payable.
2.7 Inventory. Except to the extent of any inventory reserve
included in the Interim Balance Sheet as of the date thereof and to the extent
of any inventory reserve included in the Closing Balance Sheet for inventory as
of the date thereof, the raw material and work-in-progress inventory of the
Seller is of a quality and quantity useable and saleable in the ordinary course
of business within three hundred (300) days and the finished goods inventory of
Seller is saleable in the ordinary course of business within one hundred twenty
(120) days. The aggregate cost of the Seller's finished goods inventory is less
than 85% of the aggregate selling prices for such inventory. The Seller does not
have any damaged, defective or off-specification inventory, or any finished
goods inventory of a particular product for which there have been no sales in
the last nine (9) months.
2.8 Intellectual Property. Schedule 1.1(f) accurately lists all
registered trademarks, trade names, copyrights, inventions and patents included
within the Intellectual Property, indicating whether each item is owned or
licensed and the owner of such Intellectual Property. The Intellectual Property
and the Licenses are all the intellectual property used in, or necessary to
conduct, the Business. Subject to the terms and conditions of the Licenses,
Seller has full right, title and interest to all of the Intellectual Property
free and clear of any liens, claims or encumbrances. Except for the licensor
under each License, and with respect to the technology covered thereby, no
Shareholder, employee or any third party owns or claims any rights to any
Intellectual Property. Seller conducts its Business without conflict or
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infringement with any Intellectual Property claimed or held by others. Seller
and Shareholder represent and warrant to Buyer as follows:
(a) Seller's agreements with Sugita Wire Manufacturing Co.,
Ltd. ("Sugita") consist solely of (1) that certain License and Technical
Assistance Agreement by and between Sugita and Seller, effective 14 October
1994; (2) that certain Amendment Agreement to License and Technical Assistance
Agreement dated 14 October 1994, which Amendment Agreement became effective on
29 April 1996; (3) that certain Amendment Agreement to License and Technical
Assistance Agreement dated 14 October 1994, which Amendment Agreement became
effective on 4 March 1997; and (4) that certain Amendment Agreement to License
and Technical Assistance Agreement dated 14 October 1994, which Amendment
Agreement became effective on 17 July 1998 (collectively, the "Sugita
Agreements");
(b) The Sugita Agreements constitute the entire and only
agreement between Sugita and Seller relating to the subject matter of the Sugita
Agreements, and supersede and cancel all other agreements, memoranda,
negotiations, commitments, and representations in respect thereto, and have not
been released, discharged, abandoned, changed or modified in any manner;
(c) The Sugita Agreements are in full force and effect and
neither Sugita nor Seller have defaulted or committed a breach of the Sugita
Agreements, except that Seller has failed to pay Sugita prepetition royalties in
the amount of $6,572.49, which shall be paid by Seller at Closing and the
royalties set forth in subparagraph (d)(ii) below;
(d) All royalties payable under the Sugita Agreements by
Seller to Sugita have been paid in full, except for (i) prepetition royalties in
the amount of $6,572.49, which shall be paid by Seller at Closing ; and (ii)
royalties due, if any, for the period commencing on January 1, 2000 and ending
on the Closing Date, which amounts shall be paid in full by Seller.
2.9 Real Property. Schedule 1.1(d) accurately describes all Real
Property (including improvements) owned, leased or used by Seller and indicates
whether such property is owned or leased (and, if leased, the owner of such
property). All title policies and surveys held by Seller concerning such Real
Property are attached to Schedule 1.1(d). The use of, and all improvements
located on, the Real Property complies with all applicable zoning and similar
requirements. No improvement on the Real Property encroaches on any boundary or
easement, violates any set-back requirement, or is located on a flood plain.
Except as set forth on Schedule 2.9, there are no leases, subleases or other
agreements granting to any party, other than Seller, the right of use or
occupancy of any portion of the Real Property, and there are no outstanding
options or rights of first refusal to purchase or lease any Real Property. The
five parcels comprising the Real Property are contiguous. When the Real Property
is conveyed at Closing, Buyer will acquire and own all of the real property
necessary to conduct the Business as it is currently being conducted.
2.10 Title to and Condition of Assets. Upon Closing, except as set
forth on Schedule 2.10 or the Financial Statements, and with respect to liens
reflected on the Closing Balance
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Sheet, Buyer will have good title to the Assets clear of all security interests,
claims, encumbrances, easements, rights-of-way, restrictions and other interests
("Encumbrances"). Upon closing, Buyer will have good title to the Assets and be
in possession of all property and other assets necessary to conduct the Business
as previously conducted. Except as set forth on Schedule 2.10, all Tangible
Personal Property is in good and safe operating condition and repair, ordinary
wear and tear excepted. Schedule 1.1(c) accurately describes all Tangible
Personal Property owned or used by Seller in connection with the Business and
Schedule 1.1(j) accurately describes all Leased Personal Property leased by
Seller in connection with the Business. Except as set forth on Schedule 2.10, no
Tangible Personal Property or Inventories are located at any place other than
the real property described on Schedule 1.1(d).
2.11 Customers and Suppliers. Schedule 2.11 accurately lists the
twenty (20) largest customers of, and suppliers to, the Business (based on
dollar volume) to whom sales or from whom purchases have been made at any time
during 1999 and 2000, together with aggregate sales by customer and aggregate
purchases by supplier during such periods. To the knowledge of Seller or
Shareholder, none of the customers or suppliers of the Business intends or has
threatened to cease or materially decrease their business with the Business
after the Closing Date. Neither the Seller nor the Shareholder is aware of any
reason why any customer or supplier may be unable or unwilling to continue its
relationship with the Business. Without limiting the foregoing, since September
1, 2000 neither Seller nor Shareholder is aware of any loss of or decrement in
business from any customer, or of any customer transferring any of its business
to any competitor of the Business. Neither Shareholder, Seller, nor, to the
knowledge of Seller, Shareholder, any director or employee of the Seller (or any
relative of such person) has any direct or indirect interest in any competitor,
supplier, customer, lessee, lessor, or personal property, or in any other person
with whom the Business does business. Since January 1, 2000, the Seller has not
entered into: (i) any unfilled purchase orders or purchase commitments which are
in excess of the normal requirements of the Business, which are excessive as to
price or which require that payment be made therefor regardless of whether or
not delivery is ever made or tendered of the items which are the subject of the
purchase order or commitment; (ii) any unfilled sales orders or sales
commitments other than in the ordinary course of business and other than at
normal and competitive prices; or (iii) except as set forth on Schedule 2.11,
any consignment contracts with respect to the Business either as a buyer or
seller, which consignment contracts are still in effect.
2.12 Employees. Schedule 2.12A sets forth the name, position and
current annual compensation of all current employees of the Business, together
with the date and amount of the last compensation increase for each such person.
Except as set forth on Schedule 2.12A, all of Seller's employees are employees
at will. Except as set forth on Schedule 2.12A, no employee of the Business has
given notice of intent to terminate employment if the transactions contemplated
by this Agreement are completed. Except as set forth on Schedule 2.12A, no
employee of the Business is absent from work on short or long-term disability
leave or leave under the Family and Medical Leave Act of 1993 or has notified
the Seller of his or her intent to take such leave. There have been no actual
or, to the knowledge of Seller and Shareholder, threatened labor disputes or
work stoppages within the last three years, and none are expected. No employee
of the Business is represented by a union and, to the knowledge of Seller and
Shareholder, no union organizing activities have taken or are taking place.
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Schedule 2.12B sets forth the worker's compensation loss
experience for the Business since January 1, 2000. The Seller has previously
delivered to Buyer all reports and filings made or filed by the Seller pursuant
to the Occupational Safety and Health Act and similar state and local laws,
regulations and orders since January 1, 1998.
2.13 Employee Benefit Plans. Schedule 2.13 briefly describes all
health and dental insurance, life insurance, compensation, bonus, profit
sharing, pension, retirement, vacation pay, disability, severance and other
employee benefit plans and programs maintained by Seller, or formerly maintained
by Seller or any predecessor or former affiliate of Seller if Seller has or may
have any current or future liability thereunder ("Benefit Plans"). As respects
all Benefit Plans, except as set forth on Schedule 2.13: (a) there are no
funding deficiencies (determined on a plan termination basis); (b) no Reportable
Event, as defined by the Employee Retirement Income Security Act ("ERISA"), has
occurred during the last two years; (c) no Benefit Plan is a Multiemployer Plan
(as defined in Section 4001 of ERISA); (d) no Benefit Plan provides for medical
benefits, life insurance or other similar benefits to retirees or their
families; (e) no termination or partial termination of any Benefit Plan or
participation in any Benefit Plan has occurred within the last five years; (f)
no disabled current or former employee claims or receives or is entitled to
receive disability, pension, health, welfare or life insurance benefits from
Seller; and (g) all Benefit Plans may be terminated or modified by Seller in its
discretion without penalty or premium. The Seller's liabilities with respect to
Benefit Plans are reflected in and have been accrued for in the Financial
Statements in accordance with GAAP.
2.14 Employee Funds. Seller has no funds accounts pertaining to
any employees of Seller, including, without limitation, unemployment and
workers' compensation funds.
2.15 Compliance With Laws. Except as set forth on Schedule 2.15,
Seller has at all times complied in all material respects and is in compliance
in all material respects with all applicable laws, rules, regulations and
ordinances affecting the Assets or the Business. Seller has not violated, and is
not in default with respect to, any judgment, order, injunction, settlement
agreement or decree of, or any permit, license or other authority from, any
court, agency or instrumentality.
2.16 Authorization; Binding Effect; No Conflict. The execution and
delivery of this Agreement and all other agreements, certificates and other
documents contemplated hereby have been duly authorized by the Seller and the
board of directors of Shareholder. This Agreement constitutes, and all other
agreements, certificates and other documents to be executed and delivered by the
Seller and Shareholder will constitute, the legal, valid and binding obligation
of Seller and Shareholder, as the case may be, enforceable against such persons
in accordance with their terms subject to court approval in connection with the
Bankruptcy Proceedings. Except as set forth on Schedule 2.16, for compliance
with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), and for approval from the U.S. Bankruptcy Court, Eastern District of
Missouri pursuant to the Bankruptcy Proceedings, neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will: (a) require any consent, authorization, approval or other action of
any person, entity or government authority; (b)
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violate or constitute a default under the Articles of Incorporation or Bylaws of
the Seller; (c) violate or constitute a breach or default under any contract,
agreement, commitment, note, indenture, mortgage, deed of trust, license or
permit; or (d) result in the creation or imposition of any lien, charge or
encumbrance upon the Assets or cause the acceleration of any indebtedness of the
Seller.
2.17 Litigation. Except for claims filed in connection with the
Bankruptcy Proceedings and as set forth in Schedule 2.17, there are no suits,
arbitrations, or legal, administrative or other proceedings or audits, inquiries
or investigations pending or, the knowledge of Seller, threatened against
Seller, the Business or the Assets. Other than orders and decrees issued in the
Bankruptcy Proceedings, the Seller is not subject to any judgment, order,
injunction or decree.
2.18 Books and Records. The minute books of the Seller contain
accurate records of all meetings of, and corporate action taken by, the
shareholders and Board of Directors of the Seller. The stock record books of the
Seller, all of which have been made available to Buyer, are accurate and
complete. At closing, the Seller will retain possession of all of these books
and records.
2.19 Environmental Matters. Except as described on Schedule 2.19A,
(i) no hazardous or toxic substance, waste, pollutant or contaminant, petroleum
product or any other substance regulated under any environmental law, statute,
regulation, order, policy, guideline, permit or other similar legal requirement
("Environmental Law") is present on, in, under or about any real property owned,
managed, controlled, occupied, leased or otherwise used (collectively
"Controlled") by the Seller or any of its known predecessors (except for such
quantities as are used in the ordinary course of business and stored in
appropriate containers in compliance with all Environmental Laws) and (ii) the
Seller has at all times complied and is in compliance with all Environmental
Laws. Except as described on Schedule 2.19A, the Seller has no liability for
cleanup, remediation, removal or abatement of (i) any facility or property to
which any waste or by-product has been sent, directly or indirectly, for
treatment, storage, disposal or recycling, or (ii) any property now or
previously Controlled by the Seller or any predecessor.
Except as disclosed on Schedule 2.19B, (i) other than
environmental assessments conducted on behalf of Buyer, for the past 10 years no
environmental audit, evaluation, assessment, study or test of any property or
business operation of the Seller is being or has been conducted by or on behalf
of the Seller, and (ii) no notice pursuant to any Environmental Law (including
alleged violations) has been received by the Seller and no order, ruling, writ,
injunction or legal proceeding pursuant to any Environmental Law or relating to
the use, maintenance or operation of the property of the Seller is in progress,
or to its knowledge, threatened.
Schedule 2.19C contains a list of all permits and other authorizations
held by the Seller under any Environmental Law. No Environmental Law imposes
standards or requirements which, to the Seller's or Shareholder's knowledge,
will require the Seller to make capital expenditures in excess of $50,000 to
comply with such standards or requirements. During the
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past three years, the Seller has not paid any civil or criminal fines,
penalties, judgments or other amounts relating to alleged failure to comply with
Environmental Laws or received any claim by a third party relating to
environmental damage to property.
2.20 Product Liability. Schedule 2.20 sets forth the product
liability loss experience, by each claim and claim amount, for the Business
since January 1, 1997. Other than as described on such Schedule, since January
1, 1997, there has been no claim, notice of claim, demand, investigation or
other indication received by Seller concerning potential or alleged product
liability. Since January 1, 1998, neither the Seller nor the Shareholder is
aware, nor has any customer complained in writing, of any product quality,
design, engineering or safety issue concerning product liability issues relating
to any product manufactured, distributed or sold by Seller. All products sold by
the Business have complied with all governmental requirements, governmental
specifications and other forms of governmental guidance, and, to Seller's
knowledge, all products sold by the Business have complied with all trade
association and other mandatory and voluntary requirements, specifications and
other forms of guidance. There is no defect in design, materials, manufacture or
otherwise in any goods manufactured, constructed, assembled, packaged,
distributed or sold by the Business or defect in services rendered by the
Business which could give rise to a claim against Buyer or the Business after
the Closing.
2.21 Capital Expenditures. Schedule 2.21 accurately describes the
capital improvements and expenditures presently being conducted or contemplated
by Seller.
2.22 Affiliates. Seller has no affiliates (as such term is defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended), other than
Shareholder, Laclede Chain Manufacturing Company and except as disclosed in the
filings of Shareholder under the Securities Exchange Act of 1934, as amended.
2.23 Arms-Length Transactions. All sales, purchases and
administrative services between the Seller and Shareholder or any affiliate of
Shareholder are described in Schedule 2.23. Except as set forth on Schedule
2.23, all such transactions have been conducted at arms length.
2.24 Stand-Alone Operations. Except for the items and services set
forth in Schedule 2.24A, Seller operates the Business, and the Assets are
sufficient for Buyer to continue operating the Business, as a self-supporting,
stand-alone business without use of assets or services of the Shareholder or its
Affiliates. Any items or services identified in Schedule 2.24B shall continue to
be provided to the Business for the benefit of Buyer in accordance with the
Transition Services Agreement in the form of Exhibit 2.24, to be executed by
Buyer and such parties on or before Closing.
2.25 Disclosure. To the knowledge of Seller and Shareholder, no
representation or warranty by the Seller or the Shareholders in this Agreement,
nor any document, certificate or schedule furnished at the execution of this
Agreement or to be furnished in connection with the Closing, contains or will
contain any untrue statement of fact or omits or will omit a fact necessary to
make the statements contained therein not misleading.
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2.26 Business with Nucor Corporation. Seller has obtained verbal
firm commitments from Nucor Corporation for Seller to pickle wire rod for Nucor
Corporation that will provide a direct pre-tax contribution to the net income of
the Business of at least $500,000.00 per year.
3. BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to Seller, on the date hereof and as of
the Closing Date, as follows:
3.1 Organization and Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of Missouri.
Buyer has all necessary corporate powers to (i) enter into this Agreement and
all other agreements, certificates and other documents to be executed and
delivered by Buyer under this Agreement, and (ii) perform its obligations under
such agreements, certificates and other documents.
3.2 Authorization; Binding Effect; No Conflict With Other
Instruments. The execution and delivery of this Agreement and all other
agreements, certificates and other documents contemplated hereby has been duly
authorized by Buyer and by Buyer's Board of Directors. This Agreement
constitutes, and all other agreements, certificates and other documents to be
executed and delivered will constitute, the legal, valid and binding obligation
of Buyer, enforceable against it in accordance with their terms. Except for
compliance with the HSR Act and the approval of the U.S. Bankruptcy Court,
Eastern District of Missouri in accordance with the Bankruptcy Proceedings, the
consummation by Buyer of the transactions contemplated hereby will not (i)
require any consent, authorization or approval of any person, entity or
government authority, or (ii) violate or constitute a default under the Restated
Articles of Incorporation or Bylaws of Buyer, or any note, indenture, mortgage,
deed of trust or other contract, agreement or commitment of Buyer which would
result in Buyer being unable to perform its obligations hereunder.
4. COVENANTS
Seller and Shareholder, jointly and severally, covenant to Buyer:
4.1 Full Access. From the date hereof until the Closing, upon
reasonable notice, Buyer and its representatives shall be afforded reasonable
access during normal business hours to all Assets, personnel, facilities,
properties, accounts, books, records, information, contracts and documents of or
relating to the Business. Seller shall furnish to Buyer and its representatives
all information concerning the Business and the Assets that Buyer may reasonably
request.
4.2 Conduct of the Business. Except as described on Schedule 4.2
and with the prior written consent of Buyer, Seller shall from the date hereof
until the Closing: (a) conduct the Business only in the ordinary and usual
course and in substantially the same manner as previously conducted, (b)
continue normal maintenance of the Assets in substantially the same manner as
previously maintained, (c) not make any contract or commitment for capital
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expenditures in excess in the aggregate of $25,000, (d) not sell, mortgage,
alienate or dispose of any Assets except inventory in the ordinary course of
business, (e) not lend or agree to lend any funds, (f) not increase salaries or
wages, declare bonuses, increase benefits, or institute any new benefit plan or
program except for previously scheduled increases, in the ordinary course of
business and for "stay" bonuses approved in connection with the Bankruptcy
Proceedings, (g) comply in all respects with all laws applicable to the
Business, (h) not amend or in any way modify any Contract identified or required
to be identified on Schedule 2.5, (i) not enter into any transaction, contract
or commitment in the ordinary course of business which obligates it to pay a sum
greater than $10,000 in any one instance or $25,000 in the aggregate to any one
person, or obligates it for a period ending after the date of this Agreement
(except for purchases from suppliers in the ordinary course of business which
are consistent with past practice), (j) not introduce any material change with
respect to the operation of the Business, including any method, principle or
practice of accounting, and (k) promptly notify Buyer of any event or condition
which would or may cause any condition precedent in Article 5 or 6 hereof not to
be fulfilled.
4.3 Preservation of Business and Relationships. From the date
hereof until the Closing, Seller shall use commercially reasonable efforts to
preserve its business organizations intact, to keep available to Buyer the
present officers and employees engaged in the Business and to preserve the
Business's present relationship with suppliers, customers and others having
business relationships with them.
4.4 Exclusivity. Neither Seller nor Shareholder will directly or
indirectly solicit, initiate or encourage the submission of a proposal, or
participate in any discussions or negotiations, or provide any information
regarding a Prohibited Disposition with or to any person other than Buyer and
its representatives. A "Prohibited Disposition" means any disposition of any
Assets or the Business (other than in the ordinary course of business) or any
change in control of Seller, the Assets or the Business. Seller will immediately
notify Buyer if any person makes an offer or inquiry in writing relating to a
possible Prohibited Disposition.
4.5 Actions to Effect the Transaction. At or prior to Closing, the
Seller and the Shareholder will take all actions necessary to approve and effect
the transactions contemplated hereby, including without limitation (i) calling a
meeting of the shareholders of Seller to approve the transactions contemplated
hereby within ten (10) days after the date of this Agreement (and at such
meeting Shareholder agrees to vote for the approval of the transactions
contemplated by this Agreement), (ii) taking all actions necessary or
appropriate to satisfy all conditions precedent and to enable them to deliver at
Closing the agreements and documents contemplated by Section 7.2, and (iii)
executing and filing such documents and certificates as may be necessary or
appropriate.
4.6 Title Insurance. Buyer shall purchase, and each party shall
pay one-half (1/2) the premium and search costs for, title insurance with a
company reasonably satisfactory to Buyer for the real property listed on
Schedule 1.1(d) as designated by Buyer.
4.7 Consents. If obtaining any consents, permit transfers or other
actions by the Seller is necessary in Buyer's reasonable opinion to facilitate
any objective as respects the
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Business or its future operations after Closing, Seller shall use reasonable
efforts to obtain any such consents, permit transfers or other actions;
provided, however, that Seller shall have no obligation to provide consideration
to any third party in order to obtain such consents, permit transfers or other
actions. If any such consent is not obtained or if, in Buyer's reasonable
opinion, any attempted assignment would be ineffective or would impair Buyer's
rights under the Asset in question, then Buyer may, in addition to any other
remedies available at law or in equity, require Seller to act after Closing as
Buyer's agent to obtain for Buyer the maximum benefit permitted by law and the
Asset. Seller shall cooperate with Buyer in any arrangement designed to provide
such benefits.
4.8 Sales, Use and Transfer Taxes. The parties agree that pursuant
to Section 1146 of the Bankruptcy Code, the transactions contemplated by this
Agreement shall be exempt from any sales, use, transfer and documentary taxes;
if, however, any such taxes are imposed, the parties agree to each pay one-half
(1/2) of the amount of such taxes.
4.9 Affiliate Transactions. Upon Buyer's request, Seller will
terminate or otherwise resolve, in a manner satisfactory to Buyer, all
agreements and relationships between the Seller, on one hand, and the
Shareholder, or any affiliate of the foregoing, on the other hand.
4.10 Noncompetition and Confidentiality. For five years after the
Closing Date, neither Seller nor the Shareholder will directly or indirectly
(through a subsidiary, affiliate or otherwise) in any part of the Territory: (i)
engage in any activity competitive with the Company, (ii) design, develop,
manufacture, assemble, process, distribute, market or sell any Covered Products,
(iii) solicit orders from or seek or propose to do business with any customer or
supplier of the Company relating to Covered Products, or (iv) influence or
attempt to influence any employee of the Company that is hired by Buyer in
connection with the consummation of the transactions contemplated under this
Agreement to terminate their employment with Buyer or any affiliate of Buyer.
Notwithstanding the foregoing, Laclede Chain may manufacture any product for its
own consumption and may manufacture and sell low carbon hard drawn wire of the
type sold by Laclede Chain in the two (2) years prior to the date of this
Agreement up to a maximum of one thousand (1,000) tons of low carbon hard drawn
wire per year to third parties. Notwithstanding subsection (iv) above, any
employee of Buyer who terminates his employment with Buyer without influence
from Seller may be offered employment by Seller or Shareholder after ninety (90)
days following the Closing.
The Seller and the Shareholder agree not to disclose any
Confidential Information to any person or use any Confidential Information in
any manner. "Confidential Information" means all information, belonging or
relating to the Company which is not generally known to the public, including
without limitation business or trade secrets, price lists, methods, formulas,
know-how, customer lists, manufacturing processes, products costs, marketing
plans, research and development and financial information.
The term "Territory" means all of the United States, Canada,
Mexico and all other parts of the world to which the Company has sold any
Covered Products within the 12 months preceding the date hereof. "Covered
Products" means all products manufactured by the
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Company, including, but not limited to, high carbon hard drawn wire, carbon oil
tempered wire and alloy oil tempered wire.
All of Buyer's subsidiaries and affiliates are third party
beneficiaries of this Section. Buyer and its affiliates shall be entitled to
injunctive relief for the violation of any covenant of this Section and shall
have all other rights and remedies allowed in law or equity to prevent further
violations. They may also seek damages resulting from any violation. The
Shareholder has reviewed the scope, duration and geographical scope of the
covenants made in this Section and agree that they are reasonable and necessary
to protect Buyer and its affiliates. However, the parties agree that if this
Section is found to be unenforceable due to restrictions unreasonable in scope,
duration or geographical area, then the appropriate court may reform this
Section so that the restrictions in it are reasonable and enforceable.
4.11 Casualty or Condemnation. If, after the date hereof but prior
to the Closing, any portion of the Assets is damaged, destroyed or lost by fire
or other casualty (a "Casualty") with a fair market value in excess of
$100,000.00, or if condemnation or eminent domain proceedings are proposed,
threatened or commenced against any portion of the Assets (a "Proceeding") with
a fair market value in excess of $100,000.00, Seller will promptly notify Buyer
of such event. Buyer may elect to terminate its obligations under this
Agreement by notice to Seller within ten business days after Buyer receives such
notice from Seller, o elect to close the purchase and sale contemplated herein,
in which case the Seller is to receive any and all insurance or condemnation
proceeds or awards (collectively the "Proceeds") payable as the result of such
Casualty or Proceeding (including any such Proceeds paid to or for the account
of the Seller or any Affiliate of Seller prior to the Closing Date), but only to
the extent such Proceeds shall then constitute Assets for the purpose of the
Closing Balance Sheet. If Buyer elects to terminate such obligations, neither
party has any further obligation under this Agreement.
5. CONDITIONS PRECEDENT TO PERFORMANCE OF BUYER
The obligations of Buyer are subject to the satisfaction (except to the
extent waived in writing by Buyer) before the Closing of all the following
conditions:
5.1 No Material Adverse Change. There shall have been no material
adverse change in the financial condition, results of operations, cash flows,
assets, liabilities, business or prospects of the Business from the Interim
Balance Sheet Date through the Closing.
5.2 Opinion of Counsel; Officer Certificates. Buyer shall have
received from counsel for Seller an opinion dated the Closing Date, in the form
set forth on Exhibit 5.2. Buyer shall also have received certificates executed
by the officers and management employees specified in Section 8.5 stating that
they have read this Agreement and all schedules hereto and that all of the
representations and warranties of Seller and Shareholder are true and correct in
all material respects as of the Closing Date.
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5.3 Third Party Action. No action, proceeding, investigation,
inquiry or objection relating to the transactions contemplated hereby shall have
been instituted, threatened or, in Buyer's reasonable opinion, be imminent.
5.4 Affiliate Debt. The Seller shall have collected all
indebtedness (other than travel advances and other similar loans made to
employees in the ordinary course of business) owed (whether or not due) to it
from officers, directors and employees.
5.5 Due Diligence. Intentionally Deleted.
5.6 Consents. All consents set forth on Schedule 5.6, which the
parties have agreed are necessary to the consummation of the transactions
contemplated hereby, shall have been obtained.
5.7 Schedules. Intentionally Deleted.
5.8 License Agreement with Sugita/Royalty Payments. At Closing,
Seller and Shareholder shall pay to Sugita pre-petition royalty payment
arrearages in the amount of $6,572.49. In addition, if Closing occurs before
December 31, 2000, Seller and Shareholder shall pay to Sugita its share of
royalty payments for the year 2000 through the Closing Date. If Closing occurs
after January 1, 2001, Seller and Shareholder shall pay to Sugita amounts owing
for royalty payments for the entire year 2000, and for its share of royalty
payment amounts owing for the year 2001 through the Closing Date. Furthermore,
Seller and Shareholder shall complete the royalty payment report required under
Article 5.1.2 of the License and Technical Assistance Agreement dated October
14, 1994 between Sugita and Seller, as amended, for the period January 1, 2000
through June 30, 2000. Buyer shall complete such report for the period July 1,
2000 through December 31, 2000.
5.9 Survey. Buyer shall have received and approved the survey on
the Real Property, and said survey shall disclose (i) that the five parcels
comprising the Real Property are contiguous, (ii) that there are no gaps or
gores contained within the Real Property, (iii) that there are no unrecorded
easements, discrepancies or conflicts in boundary lines, shortages in area, or
encroachments (other than the drainage tile owned by Western Rubber Company
which encroaches onto Tract I of the Real Property), and (iv) no other item
which would constitute a breach of Section 2.9 of this Agreement.
6. MUTUAL CONDITIONS PRECEDENT TO PERFORMANCE
The obligations of each party hereunder are subject to the satisfaction
on or before the Closing of each of the following conditions:
6.1 Representations, Warranties & Covenants. All representations
and warranties by each party contained in this Agreement shall be true and
correct in all material respects on the Closing Date as though made on the
Closing Date. Each party shall have performed in all material respects all of
its obligations and agreements and complied in all material respects
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with all of its covenants and conditions of this Agreement. Notwithstanding the
foregoing, no party may claim its own breach as the failure of a condition
precedent.
6.2 Approval of Documentation. The form and substance of all
certificates, instruments and other documents delivered or deliverable under
this Agreement shall be satisfactory in all reasonable respects to counsel for
each party.
6.3 Bankruptcy Court Approval. A final, non-appealable order in
substantially the form of Exhibit 6.3, approving this sale pursuant to Section
363 of the Bankruptcy Code, shall have been entered in the Bankruptcy
Proceedings.
7. CLOSING
7.1 Closing Date and Place. The closing of the transactions
contemplated hereby (the "Closing") shall take place as soon as practical
following satisfaction of the conditions precedent in Articles 5 and 6
hereof. The day of Closing is called the "Closing Date." The Closing shall be
held at the offices of Xxxxx, Xxxx & Xxxxxxxx, X.X., 000 Xxxxx Xxxxxxxx,
Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000. The Closing shall not be deemed to
have occurred until all actions necessary to complete the Closing have occurred.
This Agreement may be terminated by either Buyer or the Seller
if the Closing has not occurred (other than through the failure of any such
party to comply with its obligations under this Agreement) by December 31, 2000;
provided, however, that if due to circumstances beyond the control of Buyer, the
parties are unable to close by December 31, 2000, then Buyer shall have an
additional reasonable period of time necessary to resolve the circumstances
delaying the closure and to close, but in no event shall the date of Closing be
extended beyond February 28, 2001. In the event of termination, this Agreement
shall become void and there shall be no further liability or obligations among
the parties except to the extent such termination results from the breach by a
party of any of its representations and warranties or the non-fulfillment or
non-performance of the covenants or agreements set forth in this Agreement which
have not been waived. Notwithstanding anything contained herein to the contrary,
in the event this Agreement is terminated by Seller, other than due to an
uncured breach by Buyer of this Agreement, and prior to ninety (90) days after
the date of this Agreement, Seller or Shareholder shall solicit, negotiate with,
discuss with, meet with or provide any information, or attempt to do the same,
to any person other than Buyer who are or may be interested in acquiring all or
any part of the capital stock or assets of Seller, then Seller shall immediately
thereafter reimburse Buyer for all of its out-of-pocket costs and expenses
incurred in connection with the transactions contemplated by this Agreement,
including, without limitation, fees and expenses incurred in order to comply
with the HSR Act, plus $750,000.00.
7.2 Seller's and Shareholder's Closing Obligations. Seller and
Shareholder, subject to the satisfaction of all conditions precedent to Seller's
obligations and the simultaneous delivery by Buyer of all items required under
Section 7.3, shall deliver to Buyer at Closing: (a) a duly executed xxxx of sale
in the form of Exhibit 7.2A and other documents or instruments of conveyance,
transfer or assignment as are necessary or appropriate to vest or confirm in
Buyer
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all right, title and interest in and to all of the Assets; (b) corporate
warranty deed in the form of Exhibit 7.2B; (c) an opinion dated the Closing
Date, in the form of Exhibit 5.2, from counsel for Seller; (d) certified copies
of the resolutions of the directors and shareholders of Seller approving the
transactions contemplated by this Agreement; (e) certificates, dated the Closing
Date, signed by the officers and management employees specified in Section 8.5
certifying that all representations and warranties contained herein are true and
correct in all material respects as of the Closing and that Seller has complied
in all material respects with all provisions of this Agreement; and (f) such
further certificates, instruments, opinions, and other documents as shall be
reasonably requested by Buyer's counsel.
7.3 Buyer's Closing Obligations. Buyer, subject to the
satisfaction of all conditions precedent to Buyer's obligations and the
simultaneous delivery by Shareholder and Seller of all items required under
Section 7.2, shall deliver at the Closing: (a) to Seller, the Initial Payment;
(b) to Buyer, the Holdback and Additional Holdback; and (c) all appropriate
instruments of assumption and other documents or instruments as shall be
necessary to cause Buyer to assume any liabilities to be assumed by Buyer
hereunder, executed by Buyer.
8. MISCELLANEOUS
8.1 Employment Obligations. It is the present intention of Buyer
that upon the Closing Buyer shall offer employment to the active employees of
the Company located in Fremont, Indiana on terms and conditions of employment
which are substantially comparable to those enjoyed by employees of Buyer's wire
division. Notwithstanding the foregoing, Buyer shall be under no obligation to
hire any present employee of Seller. Any obligations to or benefits for
employees not hired by Buyer (including COBRA benefits) shall be the sole
responsibility of Seller. Buyer shall have no obligation to continue any bonus,
compensation, welfare or pension benefit program for any present or former
employee of Seller, and accepts no liability with respect to any present or
former employee except to the extent any such liability constitutes an Assumed
Liability.
Except for Assumed Liabilities, Buyer shall have no liability
for any debts, liabilities or obligations which accrue prior to or on the
Closing Date arising out of, or in connection with, any of the following: (i)
any "employee welfare benefits plans" (as defined in Section 3(1) of ERISA) or
any "employee pension benefit plans" (as defined in Section 3(2) of ERISA), or
any other employee benefit programs or pay practices associated with the
Business; (ii) wages, severance benefits, accrued vacations, unpaid sick and
holiday pay, and other obligations of like kind; (iii) claims or losses arising
under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"),
ERISA or the Internal Revenue Code and which are imposed upon, incurred by, or
assessed against Buyer or any of its employees in connection with any failure to
comply with the provisions of COBRA or ERISA, and which failure occurred with
respect to any current or prior employee of Seller or any qualified beneficiary
of such employee on or before the Closing Date or as otherwise required as a
result of any of the transactions contemplated herein; or (iv) the Health
Insurance Portability and Accountability Act of 1996 ("HIPPA"), the Family and
Medical Leave Act of 1993, or similar laws, rules or regulations.
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8.2 Governing Law; Situs of Litigation. This Agreement shall be
governed by Missouri law. All actions or proceedings arising out of or relating
to this Agreement or any other agreement contemplated hereby shall be litigated
in courts having situs within the City of St. Louis, Missouri except to the
except preempted in connection with the Bankruptcy Proceedings. Seller and
Shareholder hereby consent and submit to the jurisdiction of any court located
in such county.
8.3 Exhibits and Schedules. Each Exhibit and Schedule referred to
herein is incorporated into this Agreement. Such Exhibits and Schedules need not
be physically attached hereto to be valid and binding if they are appropriately
identified on their face. Prior to the Closing Date, Seller shall be entitled to
update disclosures made on any Schedule hereto from time to time to reflect any
matters which have occurred from and after the date of this Agreement, which if
existing or known to Seller on the date of this Agreement, would have been
required or desired to be described on any Schedule hereto. Seller shall provide
notice to Buyer of any such amendment and, if requested by Buyer, Seller shall
meet and discuss with Buyer any such material change and amendment. If Buyer
objects to any such material amendment or change to a Schedule hereto by Seller,
and the parties are unable to resolve any differences regarding such amendment
or change prior to Closing, Buyer may terminate this Agreement without liability
to Seller.
8.4 Entire Agreement; Construction. This Agreement (including all
agreements and other documents referenced herein) constitutes the entire
agreement among the parties and supersedes any prior understandings or
agreements, written or oral, that relate to the subject hereof (including any
letter of intent). To the extent that this Agreement provides a remedy for a
breach hereunder, such remedy shall be the parties' sole remedy with respect to
such breach, however, the parties shall otherwise have all remedies available at
law or in equity with regard to any breach or non-performance hereunder.
This Agreement may not be amended except by a writing signed
by each party hereto. The parties agree that all parties participated in the
preparation and negotiation of this Agreement and the agreements contemplated
hereby and that neither this Agreement nor any of the agreements contemplated
hereby shall be construed against any party by virtue of the fact that any party
prepared or drafted such agreements.
8.5 Survival; Knowledge. All representations and warranties of the
Shareholder, Seller and Buyer contained herein shall survive the Closing and
shall remain in full force and effect for twenty four (24) months after the
Closing Date unless a claim with respect thereto shall have been made pursuant
to Section 8.6 prior to such date against the party responsible for
indemnification hereunder; provided that the foregoing shall not apply to (i)
representations and warranties under Section 2.1, the first sentence of Section
2.10, 2.19 and 2.25, which shall survive without limitation hereunder and (ii)
representations and warranties under Sections 2.4, 2.17 and 2.20, which shall
survive until six (6) months after the applicable statute of limitations with
respect to such matter. Whenever in this Agreement Seller or Shareholder
represents or warrants that a statement is made to its "knowledge", or that
Seller or Shareholder is or is not "aware" of a fact or circumstance, or words
of similar import are used, such statements shall refer to the actual knowledge,
after due inquiry to the extent
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reasonable after taking into account the position and responsibilities of the
applicable person, of the following executive officers and management employees
of Seller and Shareholder: Xxxxxxx Xxxx, Xxxxx Xxxxxxx, Xxx Xxxxxx, Xxxxx
Xxxxxxxx, Xxxx Xxxxx, and Xxx Xxxxx.
8.6 Indemnification. Regardless of any pre-closing investigation,
examination or knowledge, Shareholder and the Seller hereby jointly and
severally hold harmless and indemnify Buyer and its affiliates from and against
any loss, liability, damage or expense (collectively "Damages") arising directly
or indirectly in connection with (i) any inaccuracy in or breach of, or any
failure to perform or comply with, any representation, warranty, covenant or
other obligation of Seller or Shareholder in this Agreement (without regard to
any materiality exception contained therein); (ii) any error or omission in any
exhibit, schedule, certificate or document attached to or to be delivered by or
on behalf of Seller pursuant to the terms of this Agreement; (iii) any claim or
obligation of Seller to any party not being expressly assumed by Buyer which is
asserted against Buyer; or (iv) any claim or obligation arising out of the
actions or inactions of Seller.
Notwithstanding the foregoing paragraph, the Buyer and its affiliates
shall not be entitled to recover Damages for breaches or violations of
representations or warranties under Article II or Section 8.6(i) above,
(A) unless such Damages exceed $200,000 in the aggregate, in which
case Buyer shall be entitled to be indemnified for the full amount of Damages
(i.e. back to the "first dollar") up to the Maximum Amount; or
(B) to the extent such Damages exceed $24,500,000 (the "Maximum
Amount").
Buyer hereby holds harmless and indemnifies Shareholder, Seller and
their affiliates from and against any Damages arising directly or indirectly in
connection with any inaccuracy in or breach of, or any failure to perform or
comply with, any representation, warranty, covenant, or other obligation of
Buyer in this Agreement.
Notwithstanding the foregoing paragraph, the Seller, Shareholder and
their affiliates shall not be entitled to recover Damages for breaches or
violations of representations or warranties under Article III,
(A) unless such Damages exceed $200,000 in the aggregate, in which
case Seller and Shareholder shall be entitled to be indemnified for the full
amount of Damages (i.e. back to the "first dollar") up to the Maximum Amount; or
(B) to the extent such Damages exceed $24,500,000 (the "Maximum
Amount").
For purposes of this Section, "Damages" shall (i) be computed considering
the present value of net Tax benefits or detriments to the indemnified person
arising from the indemnified matter and (ii) not include or be recoverable by
any person to the extent insurance proceeds have been recovered with respect to
the indemnified matter.
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Promptly after any indemnified party has received notice of or has
knowledge of any claim for indemnification hereunder, or the commencement of any
controversy by a person not a party to this Agreement ("Third Person"), the
indemnified party shall give the indemnifying party written notice of such claim
or the commencement of such controversy; provided, however, that failure to give
such notice shall not preclude a party from seeking indemnification unless such
failure is materially prejudicial to the indemnifying party's ability to
adequately defend such claim or controversy. Such notice shall state the nature
and the basis of such claim and a reasonable estimate of the amount thereof. The
indemnifying party has the right to defend and settle, at its own expense and by
its own counsel, any claim by a Third Person so long as the indemnifying party
diligently pursues the same in good faith. If the indemnifying party undertakes
to defend or settle, it must promptly notify the indemnified party of its
intention to do so, and the indemnified party must cooperate with the
indemnifying party and its counsel in the defense thereof and in any settlement
thereof. Such cooperation includes furnishing the indemnifying party with any
books, records or information reasonably requested by the indemnifying party
that are in the indemnified party's possession or control. The indemnified party
has the right to participate in such matter through counsel of its own choosing
and at its own expense. If the indemnifying party does not undertake to defend
such matter to which the indemnified party is entitled to indemnification
hereunder, or fails diligently to pursue such defense in good faith, the
indemnified party may undertake such defense through counsel of its choice, at
the cost and expense of the indemnifying party, and the indemnified party may
settle such matter on a commercially reasonable basis under the circumstances,
and the indemnifying party must reimburse the indemnified party for the amount
paid in such settlement and any other liabilities or expenses incurred by the
indemnified party in connection therewith. All settlements effected hereunder
must effect a complete release of the indemnified party with respect to the
Third Person claim unless the indemnified party otherwise agrees in writing.
Any valid claim for Damages from Buyer shall first be deducted from the
Additional Holdback. To the extent the Additional Holdback is insufficient to
satisfy valid claims under this Section 8.6, Seller shall pay to Buyer the
amount of such claims up to the Maximum Amount within ten (10) business days
after a final determination of or agreement with respect to the validity of such
claims. Twelve (12) months following the Closing Date, Buyer shall promptly pay
to Seller any amounts of the Additional Holdback not subject to claims for
Damages. If any claim theretofore asserted pursuant to this Section shall have
not been finally determined to be without merit or the amount of such claim
shall not have been finally determined, a reasonable reserve for such claim
shall be retained until such claim(s) shall have been paid or finally determined
to be without merit, whereupon any remaining Additional Holdback shall be
distributed to the Seller.
8.7 Collection of Accounts Receivable. On the Closing Date,
Shareholder shall deliver to Buyer a schedule of Receivables existing as of the
close of business on the Closing Date (the "Closing Receivables Schedule").
Following the Closing, Buyer shall use reasonable business efforts in collecting
Receivables consistent with Buyer's normal practices. Buyer shall promptly
notify Seller, in writing, of any disputed or past due Receivables. If any
Receivable included on the Closing Receivables Schedule is not collected by
Buyer within one hundred twenty (120) days after the Closing Date and the
aggregate amount of such Receivables
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exceeds the allowance for bad debts shown on the Closing Balance Sheet, Buyer
may elect, within thirty (30) days after the expiration of such one hundred
twenty (120) day period, to assign all right, title and interest to such
Receivables to Seller, in which case Buyer may offset the face value of such
Receivables (less the allowance for bad debts shown on the Closing Balance
Sheet) against the Additional Holdback reduced by any payments made with respect
thereto. To the extent the Additional Holdback is insufficient to satisfy valid
claims under this Section 8.7, Seller shall pay to Buyer the amount of such
claims within ten (10) business days after a final determination of or agreement
with respect to the validity of such claims.
8.8 Substitution of Subsidiary. Buyer may assign and delegate its
rights, interests and obligations hereunder to any direct or indirect subsidiary
of Buyer upon written notice to Seller at or before the Closing Date. In the
event of such assignment and delegation, Buyer will guarantee the performance of
all obligations of Buyer hereunder by such subsidiary.
8.9 Bulk Sales Law. The parties acknowledge and agree that this
transaction is not subject to the bulk sales law of the State of Indiana by
virtue of the terms of Section 6-103(3)(h) of the Indiana Code.
8.10 Counterparts; Telecopier. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute one and the same Agreement. Signature pages exchanged by telecopier
shall be fully binding.
8.11 Expenses. Buyer shall pay all costs and expenses incurred or
to be incurred by it in negotiating and preparing this Agreement and carrying
out the transactions contemplated hereby, including without limitation the fees
and expenses of its attorneys, investment bankers, finders, brokers, accountants
and other professionals and the $45,000 filing fee required in connection with
the HSR Act. Seller and Shareholder shall pay all costs and expenses incurred or
to be incurred by Seller and Shareholder in negotiating and preparing this
Agreement and carrying out the transactions contemplated hereby, including
without limitation the fees and expenses of its attorneys, investment bankers,
finders, brokers, accountants and other professionals.
8.12 Public Announcements. Except as required by law, the rules of
the New York Stock Exchange, or in accordance with the Bankruptcy Proceedings,
the parties will make no public announcements of the transactions contemplated
hereby prior to or after the Closing without the prior written consent of Buyer.
8.13 Confidentiality Agreements. Effective as of the Closing,
Buyer's obligations under confidentiality and similar agreements (including
without limitation Section 13 of the letter of intent dated September 27, 2000,
as amended by letter dated October 16, 2000) shall terminate.
8.14 Notices. Notices hereunder shall be in writing and served by
mail, express overnight delivery, telecopier or other electronic
transmission. Notices to Buyer shall be addressed to: No. 0 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: - Xx. Xxxxxx X. Xxxxxx, Vice
President (Fax 000-000-0000), with a copy to Xxxxxx X. Xxxx, General Counsel,
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at the same address (Fax 000-000-0000) and to Xxxxx, Xxxx & Xxxxxxxx, X.X., 000
Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention: - Xxxxxx X.
Trad, Esq. (Fax 000-000-0000). Notices to the Seller and the Shareholder shall
be addressed to: Laclede Steel Company, 000 X. Xxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000 Attention: - Xxxxxxx X. Xxxx (Fax 000-000-0000), with a copy to
Xxxxx Xxxx LLP, One Metropolitan Square, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx.
Xxxxx, Xxxxxxxx 00000-0000, Attention: - Xxxxx X. Xxxxx, Xx., Esq. (Fax
000-000-0000).
8.15 Post-Closing Actions. If any consents, further documents or
other actions are necessary or desirable in Buyer's reasonable opinion to
facilitate any objective as respects the Business or its future operations after
Closing, Seller and Shareholder shall use reasonable efforts to obtain any such
consents, execute such further documents and take such actions; provided,
however, that Seller and Shareholder shall have no obligation to provide
consideration to any third party in order to obtain such consents or other
actions. In addition, Seller and Shareholder shall execute any such further
documents or other instruments necessary or reasonably desirable to complete the
conveyance, or to fully vest in Buyer, good and marketable title to the Assets.
For a period of one (1) year after the Closing, Buyer shall afford to authorized
representatives of Seller and Shareholder, upon five (5) days prior written
notice, reasonable access during normal business hours to such records of the
Business as the Seller and Shareholder may reasonably require in connection with
the operation of the Business prior to the Closing Date including without
limitation in connection with the prosecution or defense of any litigation or
investigation by any governmental authority. Seller's and Shareholder's access
shall not disrupt the business activities of Buyer.
8.16 Arbitration. Any dispute, controversy or claim arising out of
or relating to this Agreement or any agreement contemplated hereby shall be
settled by arbitration in accordance with the rules of the American Arbitration
Association ("AAA") except to the except preempted in connection with the
Bankruptcy Proceedings. The place of arbitration shall be St. Louis, Missouri.
The AAA shall appoint one arbitrator who shall be an individual skilled in the
legal and business aspects of the subject matter of this Agreement and of the
dispute. The arbitrator's decisions shall be final and binding on all parties to
the dispute and may be entered in any court having jurisdiction. The arbitrator
shall have the power to award costs and expenses of the prevailing party in the
dispute.
8.17 Binding Effect. This Agreement and all other agreements
contemplated hereby shall be binding upon the parties' successors and assigns.
8.18 Fees and Expenses. In the event any party brings suit or
institutes arbitration proceedings to construe or enforce the terms hereof, or
raises this Agreement as a defense in a suit or arbitration proceeding brought
by another party, the prevailing party in such suit or arbitration proceeding is
entitled to recover its attorneys fees and expenses.
8.19 Specific Performance and Injunctive Relief. Seller and
Shareholder recognize that, given the unique nature of the Assets being
purchased, if Seller fails to perform, observe or discharge any of its
obligations under this Agreement, no remedy at law will provide adequate relief
to Buyer. Therefore, in addition to any other remedies Buyer may have, Buyer
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is hereby authorized to demand specific performance of this Agreement, and is
entitled to temporary and permanent injunctive relief, in a court of competent
jurisdiction at any time when Seller fails to comply with any of the provisions
of this Agreement applicable to Seller, subject to Bankruptcy court approval. To
the extent permitted by law, Seller hereby irrevocably waives any defense that
Seller might have based on the adequacy of a remedy at law which might be
asserted as a bar to such remedy of specific performance or injunctive relief.
8.20 Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction is, as to such
jurisdiction, ineffective to the extent of any such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof, or affecting the validity, enforceability or legality of such
provision in any other jurisdiction, unless the ineffectiveness of such
provision would result in such a material change as to cause completion of the
transactions contemplated hereby to be unreasonable.
8.21 Failure or Delay. No failure on the part of any party to
exercise, and no delay in exercising, any right, power or privilege hereunder
operates as a waiver thereof; nor does any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof, or the exercise of any other right, power or privilege. No notice to or
demand on any party in any case entitles such party to any other or further
notice or demand in similar or other circumstances.
8.22 Amendment or Modification. No amendment, modification,
supplement, termination, consent or waiver of any provision of this Agreement,
nor consent to any departure therefrom, will in any event be effective unless
the same is in writing and is signed by the party against whom enforcement of
the same is sought. Any waiver of any provision of this Agreement and any
consent to any departure from the terms of any provision of this Agreement is
to be effective only in the specific instance and for the specific purpose for
which given.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
XXXXXXX & XXXXX, INCORPORATED LACLEDE MID AMERICA, INC.
By: By:
--------------------------- -----------------------------
Name: Name:
------------------------- ------------------------
Title: Title:
------------------------- ------------------------
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LACLEDE STEEL COMPANY
By:
------------------------------
Name:
------------------------
Title:
------------------------
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LIST OF EXHIBITS AND SCHEDULES
Exhibit 1.3 Net Assets as of 9/30/00
Exhibit 2.24 Transition Services Agreement
Exhibit 5.2 Legal Option (Seller's Counsel)
Exhibit 7.2A Xxxx of Sale
Exhibit 7.2B Special Warranty Deed
Schedule 1.1(c) Tangible Personal Property - Owned
Schedule 1.1(d) Real Property
Schedule 1.1(f) Intellectual Property
Schedule 1.1(g) Permits
Schedule 1.1(h) Licenses
Schedule 1.1(i) Purchase Commitments
Schedule 1.1(j) Equipment Leases
Schedule 1.1(k) Assumed Contracts
Schedule 1.2 Excluded Assets
Schedule 2.1 Organization
Schedule 2.2A Unaudited Interim Statements
Schedule 2.2B Exceptions to Financial Statements
Schedule 2.4 Taxes
Schedule 2.5 Contracts
Schedule 2.6 Receivables and Payables
Schedule 2.9 Real Property
Schedule 2.10 Encumbrances, Condition of Assets, Location of Assets
Schedule 2.11 Customers and Suppliers
Schedule 2.12A Employee Data
Schedule 2.12B Worker's Compensation Loss Experience
Schedule 2.13 Employee Benefit Plans
Schedule 2.15 Compliance with Law
Schedule 2.16 Consents
Schedule 2.17 Litigation
Schedule 2.19A Environmental Conditions
Schedule 2.19B Environmental Assessments, Audits, Studies and Notices
Schedule 2.19C Environmental Permits and Authorizations
Schedule 2.20 Product Liability Loss Experience
Schedule 2.21 Capital Expenditures
Schedule 2.23 Related Party Transactions
Schedule 2.24A Services Performed by Others
Schedule 2.24B Transition Services
Schedule 4.2 Conduct of the Business
Schedule 5.6 Consents Necessary for Closing
Registrant agrees to furnish supplementally a copy of any omitted exhibit or
schedule to the Commission upon request.
