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ASSET PURCHASE AGREEMENT
DATED AS OF JULY 8, 1996
BY AND BETWEEN
GOLDEN WEST REFINING CORPORATION LIMITED
("BUYER")
AND
HANDY & XXXXXX
("SELLER")
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TABLE OF CONTENTS
Page
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ARTICLE I
PURCHASE AND SALE OF ASSETS .............. 1
1.1 Purchase and Sale........................................... 1
1.2 Closing..................................................... 2
1.3 Deliveries at the Closing................................... 3
1.4 Purchase Price Adjustment................................... 5
ARTICLE II
RELATED MATTERS .................... 6
2.1 Books and Records of Seller................................. 6
2.2 Ongoing and Transition Services............................. 6
2.3 Allocation of Purchase Price/Tax Filings.................... 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER ........ 7
3.1 Organization................................................ 7
3.2 Authorization............................................... 8
3.3 Consents and Approvals; No Violations....................... 8
3.4 Financial Statements........................................ 9
3.5 Absence of Material Adverse Effect.......................... 10
3.6 Title, Ownership and Related Matters........................ 11
3.7 Intellectual Property....................................... 14
3.8 Litigation.................................................. 15
3.9 Compliance with Applicable Law.............................. 15
3.10 Certain Contracts and Arrangements.......................... 16
3.11 Employee Benefit Plans; ERISA............................... 17
3.12 Certain Fees................................................ 18
3.13 Environmental Protection.................................... 18
3.14 Absence of Undisclosed Liabilities.......................... 20
3.15 License, Permits, Etc....................................... 20
3.16 Labor Matters............................................... 20
3.17 Employees................................................... 21
3.18 Intercompany Transactions................................... 21
3.19 Customers and Sales......................................... 21
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER ........ 22
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4.1 Organization and Authority of Buyer......................... 22
4.2 Consents and Approvals; No Violations....................... 22
4.3 Litigation.................................................. 23
4.4 Approval of Rothschild Australia Limited.................... 23
4.5 Certain Fees................................................ 23
ARTICLE V
COVENANTS ....................... 24
5.1 Conduct of the Business..................................... 24
5.2 Access to Information....................................... 26
5.3 Consents; Assignment of Certain Contracts................... 26
5.4 Best Efforts................................................ 27
5.5 Public Announcements........................................ 27
5.6 Covenant to Satisfy Conditions.............................. 28
5.7 Financing................................................... 28
5.8 Employees; Employee Benefits................................ 29
5.9 Replacement Precious Metals Agreement....................... 34
5.10 Seller Gold Leasing Agreement............................... 35
5.11 Sales Agreement............................................. 35
5.12 Interim Services Agreement.................................. 36
5.13 Supplemental Disclosure..................................... 36
5.14 Closing Date Schedule of Liabilities........................ 36
5.15 Silver Price Quotation Services............................. 37
5.16 Precious Metals Inventory................................... 37
5.17 Completion of Work-in-Process Inventory..................... 38
5.18 Transfer of Environmental Permits........................... 38
5.19 Covenant Not to Compete..................................... 39
5.20 Buyer's Covenants........................................... 42
5.21 Nondisclosure............................................... 43
5.22 Trademark Registrations, Corporate Names.................... 44
5.23 Certain Major Customers..................................... 44
5.24 Real Property Covenants..................................... 44
5.25 Connecticut Transfer Act.................................... 46
5.26 Estimated Assumed Liabilities............................... 46
5.27 Handy & Xxxxxx Canada, Limited.............................. 46
5.28 The CIT Group Equipment Lease............................... 47
5.29 Third Party Precious Metal.................................. 47
5.30 Phase II Environmental Study................................ 48
5.31 Environmental Consent Order................................. 49
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF THE PARTIES ........ 50
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6.1 Conditions to Each Party's Obligation....................... 50
6.2 Conditions to Obligations of Seller......................... 51
6.3 Conditions to Obligations of Buyer.......................... 51
6.4 Materiality of Conditions................................... 52
ARTICLE VII
ASSUMPTION OF CERTAIN LIABILITIES AND OBLIGATIONS ... 53
7.1 Assumed Liabilities......................................... 53
7.2 Non-Assumed Liabilities..................................... 54
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER ............. 55
8.1 Termination................................................. 55
8.2 Procedure and Effect of Termination......................... 56
8.3 Amendment, Modification and Waiver.......................... 57
ARTICLE IX
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION ...... 57
9.1 Survival of Representations, Warranties
and Agreements.............................................. 57
9.2 Seller's Agreement to Indemnify............................. 57
9.3 Third Party Indemnification................................. 60
ARTICLE X
MISCELLANEOUS ..................... 61
10.1 Sales and Transfer Taxes.................................... 61
10.2 Property Taxes.............................................. 61
10.3 Fees and Expenses........................................... 61
10.4 Further Assurances.......................................... 62
10.5 Notices..................................................... 62
10.6 Severability................................................ 63
10.7 Binding Effect; Assignment.................................. 64
10.8 No Third Party Beneficiaries................................ 64
10.9 Interpretation.............................................. 64
10.10 Jurisdiction and Consent to Service......................... 65
10.11 Entire Agreement............................................ 65
10.12 Governing Law............................................... 65
10.13 Specific Performance........................................ 65
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10.14 Counterparts................................................ 65
10.15 Waivers..................................................... 66
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INDEX OF DEFINED TERMS
Acquired Entity....................................................... 40
Act................................................................... 45
Adjustment Items...................................................... 44
Affected Employees.................................................... 29
Affiliates............................................................ 29
Agreement............................................................. 1
Arrow................................................................. 23
Assets................................................................ 2
Assigned Contracts.................................................... 27
Assumed Liabilities................................................... 51
Bank.................................................................. 28
Bank Financing........................................................ 28
Business.............................................................. 2
Buyer................................................................. 1
Buyer Damages......................................................... 56
Buyer Indemnitees..................................................... 56
Buyer Pension Plan.................................................... 30
Buyer's Notice........................................................ 40
Cases................................................................. 15
CIT................................................................... 46
Claim................................................................. 58
Closing............................................................... 2
Closing Date.......................................................... 2
Closing Date Schedule of Liabilities.................................. 36
Closing Payment....................................................... 2
Code.................................................................. 17
Commitment Letter..................................................... 28
Competing Business.................................................... 40
Confidentiality Agreement............................................. 26
Defects............................................................... 12
Disclosure Schedule................................................... 8
Disclosure Statement.................................................. 42
Environmental Condition............................................... 20
Environmental Indemnification Cap..................................... 57
Environmental Laws.................................................... 19
Environmental Permits................................................. 18
ERISA................................................................. 17
ERISA Affiliate....................................................... 17
Estimated Assumed Liabilities......................................... 45
Estimated Precious Metals Inventory................................... 34
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Excluded Assets....................................................... 2
Excluded Liabilities.................................................. 52
Existing Customers.................................................... 45
Facilities............................................................ 35
FAS No. 87............................................................ 31
Final Precious Metals Inventory....................................... 37
H&H Canada............................................................ 45
H&H Canada Agreement.................................................. 45
Indemnity Period...................................................... 55
Independent Accounting Firm........................................... 37
Instrument of Transfer................................................ 2
Intellectual Property................................................. 14
IRS................................................................... 7
Lease................................................................. 13
Legal Requirements.................................................... 16
License Agreement..................................................... 4
Liens................................................................. 9
Major Customers....................................................... 43
Market Interest Rate.................................................. 5
Master Lease.......................................................... 46
Material Adverse Effect............................................... 7
Net Customer Consigned Precious Metals................................ 35
Notice................................................................ 36
Offer Notice.......................................................... 40
PBGC.................................................................. 31
Permitted Liens....................................................... 12
Phase II Studies...................................................... 47
Plans................................................................. 17
Precious Metals....................................................... 34
Press Release......................................................... 27
Purchase Offer........................................................ 40
Purchase Price........................................................ 1
Purchase Price Cap.................................................... 57
Replacement Precious Metals........................................... 35
Replacement Precious Metals Agreement................................. 34
Replacement Precious Metals Institution............................... 34
Rothschild Letter Agreement........................................... 23
Security Interest..................................................... 11
Seller................................................................ 1
Seller Actuary........................................................ 30
Seller Financial Statements........................................... 9
Seller Leased Gold.................................................... 3
Seller Pension Plans.................................................. 30
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Special Meeting....................................................... 42
Third Party Precious Metals........................................... 46
Transfer Taxes........................................................ 59
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement"), dated as of July 8,
1996, is made by and between Golden West Refining Corporation Limited, an
Australian company ("Buyer"), and Handy & Xxxxxx, a New York corporation
("Seller").
Buyer desires to purchase certain assets of Seller, and Seller
desires to sell such assets to Buyer on the terms and conditions hereinafter set
forth.
A cross-reference table of certain defined terms used herein is set
forth following the Table of Contents.
Accordingly, in consideration of the premises and of the respective
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
Section 1.1 Purchase and Sale. On the terms and subject to the
conditions set forth in this Agreement
(a) Seller shall sell to Buyer, and Buyer shall purchase from
Seller, all of the fixed assets and certain inventory and other assets, as set
forth in Section 1.1(b) hereof, of the United States domestic refinery business
carried on by the Precious Metal Refining Division of Seller for an aggregate
unadjusted purchase price of $9,000,000 less the amount of any liabilities and
obligations expressly assumed under Section 7.1(a) here-
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of, subject to adjustment as provided in Section 1.4 hereof (the "Purchase
Price"), and
(b) at the Closing referred to in Section 1.2 hereof:
(i) Seller shall sell, assign, transfer and deliver to
Buyer the assets, business, properties and rights of the Precious Metals
Refining Division of Seller (which shall include the names "South
Windsor Metallurgical, Inc." and "American Chemical Refining, Inc.") of
every kind and nature, tangible and intangible, wherever located and
whether or not on the books of the Division, as set forth on the
instrument of transfer (the "Instrument of Transfer") in the form attached
hereto as Exhibit A and made a part hereof, all as shall exist as of the
Closing Date as referred to in Section 1.2 hereof (collectively, the
"Assets", and the business carried on using the Assets, the "Business");
provided, that the Assets shall not include any assets specifically
described on Schedule 1.1 hereof as excluded assets (the "Excluded
Assets"); and
(ii) Buyer shall accept and purchase the Assets and the
Business from Seller and in payment therefor shall assume only the
liabilities and obligations specified in Section 7.1 hereof and shall
deliver to Seller (by intrabank or wire transfer to a bank account
designated by Seller upon two days' prior written notice to Buyer or by
certified or official bank check in federal or other immediately available
funds) an amount equal to $9,000,000 less the amount of the Estimated
Assumed Liabilities (as set forth in Section 5.26 hereof) to be paid in
cash for the Assets and the Business under this Agreement to Seller at the
Closing (the "Closing Payment").
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Section 1.2 Closing. Subject to the conditions set forth in this
Agreement, the purchase and sale of the Assets and the Business pursuant to this
Agreement (the "Closing") shall take place at the offices of Seller, 000
Xxxxxxxx Xxxxx Xxxxxx, Xxx, Xxx Xxxx at 10 a.m. on (a) August 5, 1996 subject to
the satisfaction (or, if permissible, waiver) of the conditions set forth in
Article VI hereof, or (b) such other date, time and place which is agreed to by
Buyer and the Seller. The date on which the Closing is to occur is herein
referred to as the "Closing Date" and the Closing shall be deemed to be
effective as of the opening of business on the Closing Date.
Section 1.3 Deliveries at the Closing. Subject to the conditions set
forth in this Agreement, at the Closing:
(a) Seller shall deliver to Buyer:
(i) The Instrument of Transfer, a form of which is
attached hereto as Exhibit A;
(ii) the Seller Gold Leasing Agreement, a form of which
is attached hereto as Exhibit B, pursuant to which Seller shall lease to
Buyer up to 25,000 fine ounces of "good delivery bullion" gold (the
"Seller Leased Gold");
(iii) the Sales Agreement, a form of which is attached
hereto as Exhibit C, pursuant to which Seller and its domestic
subsidiaries shall agree to continue as customers of the Business in
accordance with historical practice and Buyer shall provide certain
services to Seller and its domestic subsidiaries after the Closing at the
lower of (A) the rates set forth in Schedule A attached to the Sales
Agreement, or (B) the lowest rates charged for the items or services set
forth on Schedule A to
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buyers of a size similar to Seller, and in annual volumes similar to that
of Seller. Buyer agrees that any rate reduction made in items or services
of the type set forth on Schedule A made subsequent to the Closing shall
be made available to Seller on such terms and conditions as are made to
unaffiliated third parties of a size similar to Seller by Buyer;
(iv) the Interim Services Agreement, a form of which is
attached hereto as Exhibit D, pursuant to which Seller shall provide to
Buyer certain services as set forth therein for a period not to exceed
three-months from the Closing Date, which shall be extended at the option
of Buyer for an additional period not to exceed three months;
(v) any documents that are necessary to transfer to
Buyer good title to all the Assets, including, without limiting the
foregoing, limited warranty deeds (with covenants against grantor's acts)
for real property and assignments of leases (together with landlord's
consents, if required by the respective lease, and estoppels, if Seller is
entitled to obtain an estoppel from the landlord under the terms of the
applicable lease, each in a form as is required under such lease)
constituting a part of the Assets, affidavits required by Buyer's title
insurer and an affidavit affirming that Seller is not a "foreign person"
in accordance with Section 1445 of the Internal Revenue Code of 1986, as
amended; and
(vi) the Trademark License Agreement (the "License
Agreement"), a form of which is attached hereto as Exhibit E, pursuant to
which the right to use a form of the "Handy & Xxxxxx" name and an "H&H"
logo shall be licensed to Buyer, subject to the terms and conditions set
forth therein;
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(vii) all opinions, certificates, undertakings and other
instruments and documents required to be delivered by Seller at or prior
to the Closing or otherwise required in connection herewith.
(b) Buyer shall deliver and pay, or cause to be delivered or
paid, to the Seller:
(i) the Closing Payment as required by Section 1.1(b)
hereof;
(ii) the Replacement Precious Metals, as defined in
Section 5.9 hereof;
(iii) the Seller Gold Leasing Agreement;
(iv) the Sales Agreement;
(v) the Interim Services Agreement;
(vi) the License Agreement;
(vii) the Undertaking, a form of which is attached
hereto as Exhibit J, pursuant to which Buyer shall assume certain
liabilities of the Business as set forth in Section 7.1 hereof; and
(viii) all opinions, certificates, undertakings and
other instruments and documents required to be delivered by Buyer at or
prior to the Closing or otherwise required in connection herewith.
Section 1.4 Purchase Price Adjustment.
(a) Promptly after the Closing Date Schedule of Liabilities
(as defined in Section 5.14 hereof) is determined pursuant to Section 5.14
here-
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of, the parties shall make payment by wire transfer to a single account as
designated by the payee as follows:
(A) if the amount of the total liabilities (expressed as
an absolute number) reflected on the Closing Date Schedule of Liabilities
is greater than the amount of the Estimated Assumed Liabilities (expressed
as an absolute number), the Seller shall pay to Buyer the amount of such
difference, or
(B) if the amount of the total liabilities (expressed as
an absolute number) reflected on the Closing Date Schedule of Liabilities
is less than the amount of the Estimated Assumed Liabilities (expressed as
an absolute number), the Buyer shall pay to Seller the amount of such
difference;
provided, however, that any payment made pursuant to this Section 1.4 shall be
accompanied by interest from the Closing Date at the Market Interest Rate and;
provided, further, that Buyer or Seller, as the case may be, shall pay on the
second business day following delivery of the Notice (as defined in Section
5.14(c)) any amount that is in agreement; and
(b) For purposes of this Agreement, the term "Market Interest Rate"
means a rate of interest per annum equal to the lower of (i) the rate publicly
announced by The Bank of New York as its "reference" or "base" rate of interest
as in effect on the Closing Date and (ii) the maximum rate of interest allowable
under applicable law. The Purchase Price (including the liabilities expressly
assumed by Buyer under this Agreement) shall be allocated as set forth in
Exhibit F and made a part hereof.
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ARTICLE II
RELATED MATTERS
Section 2.1 Books and Records of Seller. Seller agrees to make
available to Buyer at or prior to the Closing, as requested by Buyer, all books
and records of Seller (including, but not limited to, correspondence, memoranda,
books of account, personnel and payroll records and the like) relating to the
Business, and copies, as requested by Buyer, of any income tax forms or tax
returns. Any books, records, forms and returns of Seller relating to the
Business which are not delivered to Buyer hereunder will be preserved by Seller
for a period of at least four (4) years following the Closing and Seller will
permit Buyer and its authorized representatives to have reasonable access to,
and examine and make copies of, all such books, records, forms and returns as
reasonably requested by Buyer. All books, records, forms and returns delivered
by Seller to Buyer will be preserved by Buyer for a period of at least four (4)
years following the Closing and Buyer will permit Seller and its authorized
representatives to have reasonable access to, and examine and make copies of,
all such books, records, forms and returns as reasonably requested by Seller.
Section 2.2 Ongoing and Transition Services. Except (a) as provided
in the Seller Gold Leasing Agreement, (b) as provided in the Sales Agreement,
(c) as provided in the Interim Services Agreement, (d) as provided in Section
5.15 hereof, or (e) as otherwise agreed to in writing by Seller and Buyer, on
the Closing Date all data processing, accounting, insurance, banking, personnel,
legal, communications and other products or services provided to the Business by
Seller or any of its affiliates, including any agreements or understandings
(written or oral) with respect thereto, will terminate.
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Section 2.3 Allocation of Purchase Price/Tax Filings. The Purchase
Price (including the liabilities expressly assumed by Buyer under this
Agreement) shall be allocated among the Assets as set forth in Exhibit F hereto
in the manner required on Internal Revenue Service ("IRS") Form 8594 in
compliance with Section 1060 of the Code (as hereinafter defined). Any
post-Closing adjustment to the Purchase Price shall be reflected proportionately
in the final allocation of the Purchase Price among the Assets. Buyer and Seller
agree to timely file all forms and tax returns required to be filed in
connection with such purchase price allocation and to take no position
inconsistent with such forms or tax returns. Buyer agrees to permit Seller to
have reasonable access to any records required in order for Seller to prepare
any tax returns or forms to be filed by Seller after the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
Section 3.1 Organization. The Seller is a corporation duly
organized, validly existing and in good standing under the law of the State of
New York and, with respect to the Business, Seller has all requisite corporate
and other power and corporate authority to own, lease and operate its properties
and to carry on its business and operations as now being conducted, except where
any such failure to be so organized, existing and in good standing or to have
such power and authority would not have a material adverse effect (taken in the
aggregate) on the business, operations, Assets, liabilities, results of
operations or financial condition of the Business (a "Material Adverse Effect");
provided, that,
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to the extent that results of operations of the Business are reported at a loss,
a Material Adverse Effect shall mean a material increase in such loss from the
prior financial reporting period or date. With respect to the Business, Seller
is duly qualified or licensed and in good standing to do business in each
jurisdiction in which the property owned, leased or operated by it or the nature
of the business conducted by it makes such qualification necessary, except in
any such jurisdictions where the failure to be so duly qualified or licensed and
in good standing would not have a Material Adverse Effect. Seller has heretofore
delivered to Buyer complete and correct copies of Seller's Certificate of
Incorporation and By-laws, as currently in effect.
Section 3.2 Authorization. Seller has the corporate power and
corporate authority to execute and deliver this Agreement and consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Seller and no other corporate
proceedings on the part of Seller are necessary to authorize the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Seller and constitutes, and, when executed and delivered, each of
the other agreements, documents and instruments to be executed and delivered by
Seller pursuant hereto will constitute, a valid and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except that (a) such
enforcement may be subject to any bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other laws, now or hereafter in effect,
relating to or limiting creditors' rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the
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discretion of the court before which any proceeding therefor may be brought.
Section 3.3 Consents and Approvals; No Violations. Except as set
forth in Section 3.3 of the Disclosure Schedule being delivered by Seller to
Buyer herewith (the "Disclosure Schedule"), neither the execution, delivery or
performance of this Agreement nor the consummation by Seller of the transactions
contemplated hereby will (a) conflict with or result in any breach or violation
of any provision of the Certificate of Incorporation or By-Laws of Seller; (b)
require any filing or registration with, or notice or declaration to, or the
obtaining of any permit, license, authorization, consent or approval of, any
federal or state governmental or regulatory authority whether within or outside
the United States; (c) violate, conflict with or result in a default (or any
event which, with notice or lapse of time or both, would constitute a default)
under, or result in any termination, cancellation or acceleration or give rise
to any such right of termination, cancellation or acceleration under, any of the
terms, conditions or provisions of any note, mortgage, other evidence of
indebtedness or guarantee to which Seller is a party or by which the Business,
Seller or any of its assets, so far as they relate to the Assets or the
Business, is subject or by which any of them may be bound; (d) violate any
order, injunction, decree, statute, rule or regulation applicable to the
Business, Seller, or any of its respective assets or properties, or (e) result
in the creation or imposition of any liens, pledges, mortgages, charges, claims
or other encumbrances ("Liens") upon any properties, assets or business, so far
as they relate to the Assets or the Business, of Seller or the Business,
excluding from the foregoing clauses (b), (c), (d) and (e) such requirements,
conflicts, defaults, rights, Security Interests (as defined in Section 3.6
hereof), Liens or violations which would not have a Material Adverse Effect and
would not materially adversely affect the ability of Seller to
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consummate the transactions contemplated by this Agreement, or which become
applicable as a result of the business or activities (other than the business
currently conducted by the Business) in which the Buyer is or proposes to be
engaged or as a result of any acts or omissions by, or the status of or any
facts pertaining to, the Buyer.
Section 3.4 Financial Statements. Seller previously has delivered to
Buyer true and complete copies of the audited balance sheets of the Business as
of December 31, 1994 and 1995 and the related audited statements of income for
the fiscal years then ended, and a balance sheet of the Business as of March 31,
1996 and the related statement of income for the quarter ended on such date
(collectively, the "Seller Financial Statements"). The Seller Financial
Statements have been prepared from the books and records of the Seller in
conformity with Section 3.4 of the Disclosure Schedule and fairly present the
financial position and results of operations of the Business as of the date and
for the period indicated. The statements of income included in the Seller
Financial Statements do not contain any special or nonrecurring items except as
expressly specified therein, and the balance sheets included in the Seller
Financial Statements do not reflect any write-up or revaluation increasing the
book value of any assets. The books and accounts of the Business are complete
and correct and fully and fairly reflect all of the transactions of the Business
and, except as set forth in Section 3.5 of the Disclosure Schedule (relating to
Material Adverse Effects on the Business), there is no condition, development or
contingency of any kind existing which, so far as can be foreseen at this time,
would be reasonably likely to result in a Material Adverse Effect on the
Business. Except as set forth on Section 3.4 of the Disclosure Schedule and
except for annual audit adjustments, the information included in the Seller
Financial Statements is consistent with the financial information for the
Business used by
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Seller in the preparation of its annual and quarterly financial statements filed
with the Securities and Exchange Commission.
Section 3.5 Absence of Material Adverse Effect. Except to the extent
set forth in Section 3.5 of the Disclosure Schedule, and except to the extent
reflected or reserved against in the Seller Financial Statements, since March
31, 1996, there has not been (i) any Material Adverse Effect with respect to the
Business or the Assets, properties, financial position or results of operations
of the Business; (ii) any damage or destruction or property loss not covered by
insurance constituting a Material Adverse Effect on the Assets or the operation
of the Business; (iii) any increase in the compensation or bonus, incentive
compensation, profit sharing, retirement, insurance, medical reimbursement or
other employee benefit plan or arrangement payable or owed or to become payable
or owed by Seller, other than increases made in the ordinary course of business
consistent with past practice, compensation increases attendant to promotions
and falling within the normal range for the new position and scheduled
increases; (iv) any sale or other disposition of any capital asset of the
Business having net book value in excess of $100,000, other than sales or
dispositions of Excluded Assets; (v) any entry by Seller into any material
contract, lease, license, obligation, indebtedness, commitment, purchase or
sale, or transaction (including, without limitation, any borrowing or capital
expenditure), other than those commitments and transactions entered into in the
ordinary course of business, or those contemplated by or within the limits
permitted by this Agreement; (vi) any release or waiver of any material right or
claim of Seller with respect to any contract, lease, license or permit relating
to the Business or the Assets or the Intellectual Property (as defined in
Section 3.7 hereof) or the "Handy & Xxxxxx Refining Group, Inc." name; (vii) any
material mortgage or pledge or imposition of a material lien or other material
encum-
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brance on any of the Assets; or (viii) any material change by Seller in
accounting principles or methods.
Section 3.6 Title, Ownership and Related Matters.
(a) Except as set forth in Section 3.6 of the Disclosure
Schedule, the properties and the Assets owned by or leased to Seller in
connection with the Business are in satisfactory condition and repair for their
continued use as they have been used and adequate for the continued conduct of
the Business as presently conducted. The assets, properties and rights included
in the Assets or granted under the License Agreement comprise substantially all
of the assets, properties, and rights of every type and description, real,
personal and mixed, tangible and intangible, used by Seller solely in, and
necessary to, the conduct and operation of all of the Business as presently
conducted and operated in view of the fact that the Business has been heretofore
operated as a division of Seller. The sale of the Assets by Seller pursuant
hereto will effectively convey to Buyer the Business other than the Excluded
Assets, including all tangible and intangible assets and properties, related to
the Business, free and clear of any security interest, pledge, lien, charge,
option or restriction on transfer ("Security Interest"), except for such
Security Interests which would not have a Material Adverse Effect on the
Business, would not adversely affect the ability of Seller to consummate the
transactions contemplated by this Agreement and are not substantial in
character, amount or extent and which do not materially detract from the value,
or materially interfere with the present or contemplated use, of the Assets and
do not materially impair the operations of the Business or the marketability
of any Asset; provided, that all rights to the Licensed Trademarks and the
Licensed Bar Logo, as those terms are defined in the License Agreement, shall
only be
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conveyed to Buyer to the extent set forth in the License Agreement.
(b) Set forth in Section 3.6 of the Disclosure Schedule is (i)
a list of all interests in real property, including improvements thereon, owned
by Seller with respect to the Business and (ii) a description of all leasehold
interests in real property of Seller with respect to the Business and of all
options or other contracts to acquire any such interest, specifying the location
of each such property.
(c) To the knowledge of Seller, with regard to each and every
material piece, parcel or tract of real property owned by Seller included in the
Assets as described in Section 3.6 of the Disclosure Schedule, Seller agrees
that title to the real property and improvements that make up such owned real
property Assets shall be marketable, good of record and in fact, insurable by a
recognized title insurance company at standard rates, and free and clear of all
liens, except for Permitted Liens, as hereinafter defined. Buyer shall promptly
after the date hereof obtain an update of Seller's as-built surveys and current
preliminary reports of title, including copies of all recorded or filed items
noted therein as objections (or exceptions) to Seller's title in the owned real
property Assets at Buyer's sole cost and expense. In the event the as-built
survey and/or title to the owned real property Assets are subject to any defect
other than Permitted Liens, immaterial judgements or immaterial pending
litigation, then Buyer shall waive such ("Defects"), or if Buyer is unwilling to
do so, then Seller shall then have the option to cure any or all of the Defects
prior to Closing. Notwithstanding anything herein to the contrary, (i) Seller
shall have the right to adjourn the Closing Date for such reasonable period (not
to exceed 30 days) as shall be necessary to cure any such Defect and (ii) Seller
shall have the right, subject to the terms and conditions hereof, to
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cause the Closing to take place with respect to the other real property Assets
and then to cause the Closing to take place with respect to the affected real
property Asset within such reasonable period as shall be necessary to cure any
such Defect unless the inability to convey the affected real property Asset
would have a Material Adverse Effect on the Business. As used in this Agreement,
the term "Permitted Liens" shall mean, collectively: liens for current taxes or
assessments not delinquent and for which no mechanic's liens are recorded on the
land records; builder, mechanic, warehousemen, mate-rialmen, contractor,
workmen, repairmen and carrier liens, or other similar liens arising and
continuing in the ordinary course of business for obligations which are not
delinquent; the rights, if any, of vendors having possession of tooling of the
Business; other similar common law or statutory liens which do not materially
affect the value of the real property Assets so subject, or the usefulness
thereof, to the Business; and easements, rights of way, restrictions,
encumbrances, covenants, conditions, encroachments or any other matters
affecting title to real property Assets which do not render such real property
Assets uninsurable by a reputable title insurance company at its standard
premium rates or reduce the fair market value of the real property Asset to
which they relate and which do not have a Material Adverse Effect on the
Business or the Assets.
(d) Seller represents, as of the date of this Agreement, that
it has no knowledge of any default or breach of any terms, covenants or
conditions of any lease of, or leasehold interest in, real property of Seller
included in the Assets as described in Section 3.6 of the Disclosure Schedule
(each, a "Lease"), or of any actions which would be reasonably likely to, with
the passage of time or the giving of notice by the respective landlord, result
in any default or breach which would give rise to a right in the landlord to
terminate such Lease.
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(e) Permits and Compliance. To Seller's knowledge, there are
no pending, threatened or contemplated condemnation proceedings or litigation
which would be reasonably likely to affect Seller's interests in the real
property Assets or any part thereof. Further, to Seller's knowledge, all
necessary and material certificates of occupancy, site plans, signs and other
permits, licenses and governmental approvals for the operation of the real
property Assets as part of the Business are in full force and effect and will be
maintained until Closing. To Seller's knowledge, the real property Assets and
the operations thereof comply in all material respects with all applicable
federal, state and local laws, regulations, rules, ordinances and orders,
including (without limitations) those relating to zoning, building, site plan,
boiler, safety, fire, health, signs, parking, or flood control, or protection of
the environment, such as sewage treatment, water quality, asbestos-containing
and presumed asbestos-containing rules, and air pollution.
(f) Physical Condition. To Seller's knowledge, there are no
material defects in the structural walls, foundations, roofs, common area
improvements, mechanical, electrical, plumbing, heating, ventilating or air
conditioning systems of the real property Assets, other than as a result of
ordinary wear and tear. Except as is otherwise explicitly provided herein with
respect to a casualty loss, all equipment in or on the real property Assets is
now and will at Closing be in operating condition and materially in compliance
with all applicable local, state, federal and insurance requirements. Each real
property Asset is serviced by public utilities in a sufficient quantity to
operate the real property Asset as it is currently constructed and Seller has no
responsibility for maintenance of off-site lines, pumps, lift stations, or other
facilities.
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Section 3.7 Intellectual Property.
(a) Section 3.7 of the Disclosure Schedule sets forth a list
of all material trademarks and trademark registrations, trade names, service
marks and service xxxx registrations, service names, logos, assumed names,
computer software applications other than off-the-shelf applications, copyright
registrations and patents, together with all applications therefor, which are
owned by or licensed to Seller and used solely in the operation of the Business
as currently conducted (collectively, the "Intellectual Property").
(b) Except as set forth in Section 3.7 of the Disclosure
Schedule, to the knowledge of Seller, (i) Seller owns all right, title and
interest in, or has a valid and transferrable license to use, the Intellectual
Property; (ii) Seller has not granted any other party any rights with respect to
the Intellectual Property owned by Seller which would materially adversely
affect Buyer's use of the Intellectual Property; (iii) such material trademark
registrations, service xxxx registrations, and patents comprising the
Intellectual Property have been duly issued and have not been canceled,
abandoned or otherwise terminated; (iv) Seller is not in default under any
material licenses of Intellectual Property; (v) all such material licenses of
Intellectual Property are binding in accordance with their terms; (vi) the use
of the Intellectual Property by Seller does not infringe any rights of other
persons; and (vii) Seller has taken all reasonable steps necessary to protect
the Intellectual Property in all countries where the Business has material
operations.
(c) Except as set forth in Section 3.7 of the Disclosure
Schedule, Seller has not received any notice of an adverse claim by any third
party with respect to the Intellectual Property. Except as set forth
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in Section 3.7 of the Disclosure Schedule, there are no pending proceedings or
litigations or other adverse claims by any person regarding the use by Seller of
any Intellectual Property.
Section 3.8 Litigation. Set forth in Section 3.8 of the Disclosure
Schedule is a list of all material actions, suits, administrative, arbitration
or other proceedings and governmental investigations and inquiries pending
(collectively "Cases") against Seller or any of its properties, assets, Plans
(as hereinafter defined) and business operations with respect to the Business,
as of the date hereof, whether at law or in equity or by or before any court,
governmental or regulatory authority or by any third party other than Cases
brought in the ordinary course of the Business as to which Seller believes it is
indemnified or held harmless by an insurance carrier and as to which Seller has
received no notice to the contrary from such carrier. No such Cases are pending
which, if adversely determined, would be likely to have a Material Adverse
Effect on the Assets, properties, financial position, or results of operations
of the Business and Seller is not subject to any judgment, consent, award, order
or decree having or which is likely to have such a Material Adverse Effect; nor
is there outstanding any writ, order, award, decree or injunction applicable to
Seller that (i) calls into question Seller's authority or right to enter into
this Agreement and consummate the transactions contemplated hereby, or (ii)
would otherwise prevent or delay the transactions contemplated by this
Agreement.
Section 3.9 Compliance with Applicable Law. Except as set forth in
Section 3.9 of the Disclosure Schedule, to the knowledge of Seller, Seller is,
and conducts the Business, in compliance with all applicable building, zoning,
environmental and other land use laws, ordinances, codes, rules, regulations,
standards, judgments, decrees, writs, rulings, injunctions, orders and
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other requirements of all governmental, administrative and judicial entities,
and other laws, ordinances, codes, rules, regulations, standards, judgments,
decrees, writs, rulings, injunctions, orders, and other requirements of all
governmental, administrative or judicial entities (collectively, "Legal
Requirements") of any federal, state, local or foreign governmental authority
applicable to the Business and its operations, except for violations, if any,
which would not have a Material Adverse Effect on the Business. Except as set
forth in Section 3.9 of the Disclosure Schedule, no notice of any claim, suit,
action, or inquiry has been issued and served upon or delivered to Seller, and
no investigation or review is pending with respect to any alleged violation by
Seller of any Legal Requirements in connection with the Assets or operations of
the Business.
Section 3.10 Certain Contracts and Arrangements. Except as set forth
in Section 3.10 of the Disclosure Schedule, as of the date hereof, Seller is not
a party with respect to the Business to any written (a) employment agreement,
consulting agreement, personal service or similar agreement; (b) indenture,
mortgage, note, installment obligation, agreement or other instrument relating
to the borrowing of money by Seller, or the guaranty by Seller of any obligation
for the borrowing of money; or (c) other agreement, including without
limitation, purchase orders, or any enforceable oral agreement, which
individually, or together with related agreements with the same or related
parties, involves the receipt or payment after the date hereof of more than
$50,000 on an annual basis or $100,000 over the remaining term thereof. Except
as set forth in Section 3.10 of the Disclosure Schedule, all such agreements are
valid, binding and enforceable in accordance with their terms and, to the
knowledge of Seller, neither Seller nor any other party thereto is in default
under any of the aforesaid agreements. Except as set forth on Section 3.10 of
the Disclosure Schedule, no consent of any party to any such
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agreements is required in connection with the transactions contemplated by this
Agreement.
Section 3.11 Employee Benefit Plans; ERISA. (a) Section 3.11(a) of
the Disclosure Schedule lists each "employee benefit plan" (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), and all other employee benefit, bonus and fringe benefit plans,
programs, arrangements or understandings sponsored or maintained for the benefit
of, or contributed to by Seller or any trade or business, whether or not
incorporated (an "ERISA Affiliate"), that, together with Seller would be deemed
a "single employer" within the meaning of Section 4001 of ERISA, for the benefit
of any employee or former employee of Seller in respect of the Business (the
"Plans").
(b) Each of the Plans is in material compliance with its
terms. Each of the Plans that is subject to ERISA materially complies with ERISA
and the applicable provisions of the Internal Revenue Code of 1986, as amended
(the "Code"). Each of the Plans intended to be "qualified" within the meaning of
Section 401(a) of the Code has been determined by the IRS to be so qualified and
Seller knows of no fact or set of circumstances that would adversely affect such
qualification for events taking place prior to the Closing. Except as set forth
in Section 3.11 of the Disclosure Schedule, no "reportable event", as such term
is defined in Section 4043(b) of ERISA for which the thirty day notice
requirement to the Pension Benefit Guaranty Corporation has not been waived, has
occurred or will occur as a result of the Closing with respect to any Plan.
There is no "accumulated funding deficiency" as such term is defined in Section
412 of the Code, whether or not waived with respect to any Plan. There are no
pending or, to the knowledge of Seller, threatened material claims (other than
routine claims for benefits) by, on behalf of or
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against any of the Plans or any trusts related thereto. Seller and its ERISA
affiliates do not contribute to any "multiemployer plans" as such term is
defined in Section 4001(a)(3) of ERISA. Seller has not received written notice
of, and to Seller's knowledge there are no, claims or defaults, nor to Seller's
knowledge, are there any facts or conditions which if continued, or on notice,
will result in a default under any of the Plans. Seller has not engaged in any
prohibited transaction with respect to any Plan.
(c) As to any Plan, except as set forth Section 3.11 of the
Disclosure Schedule, all of the following are true: (i) all amounts due as
contributions, insurance premiums and benefits to the date hereof have been
fully funded and paid by Seller; (ii) to Seller's knowledge, all applicable
requirements of law have been observed with respect to the operation thereof and
all material reporting and disclosure requirements have been timely satisfied;
and (iii) there are no claims pending, and Seller has received no written notice
of claims by, and to Seller's knowledge there are no claims threatened by, any
taxing authority for taxes or penalties, which have not been satisfied in full
except those pending payment or satisfaction in the ordinary course of business.
With respect to all of the Plans, Seller has made available to Buyer complete
copies of each Plan, each Plan's summary plan description and all other material
employee communications, the most recent valuation reports prepared by the
enrolled actuary for each Plan, the most recent annual reports for each Plan as
filed with the IRS, and the most recent audited financial statements of the
Plan.
Section 3.12 Certain Fees. Except as set forth in Section 3.12 of
the Disclosure Schedule, none of Seller or any of its affiliates has employed
any financial advisor or finder or incurred any liability for any
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financial advisory or finders' fees in connection with this Agreement or the
transactions contemplated hereby.
Section 3.13 Environmental Protection.
Except as set forth in Section 3.13 of the Disclosure
Schedule, (a) Seller or its affiliates have obtained, with respect to the
Business and the real property owned or leased by the Business, all material
permits, licenses, and other authorizations which are required under federal,
state and local statutes, ordinances, and other laws relating to pollution or
protection of the environment ("Environmental Permits"), including laws and
regulations relating to emissions, discharges, releases, threatened releases,
investigations or remediation of pollutants, contaminants, chemicals, or
industrial, hazardous, or toxic materials or waste into the environment
(including, without limitation, ambient air, surface water, ground water, land
surface, sediments, building materials or subsurface strata) or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, chemicals, or
industrial, hazardous, or toxic materials or wastes, or any regulation, rule,
code, plan, judicial order, decree, judgment, injunction, or notice issued,
entered, promulgated, or approved thereunder ("Environmental Laws"). All such
Environmental Permits are now and as of the Closing Date will be in full force
and effect. Seller has, or as of the Closing Date will have, timely filed for
all necessary renewals of Environmental Permits, so as not to jeopardize the
renewal thereof. A list of all material Environmental Permits is set forth in
Section 3.13 of the Disclosure Schedule. To the knowledge of Seller, except as
set forth in Section 3.13 of the Disclosure Schedule, Seller, with respect to
the Business and the real property owned or leased by the Business, is in
substantial
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compliance with all terms and conditions of such Environmental Permits and is
also in substantial compliance, with respect to the Business and the real
property owned or leased by the Business, with all other requirements of
Environmental Laws.
(b) There is no pending civil, administrative or criminal
investigation, litigation, material notice of violation, or administrative
proceeding relating, with respect to the Business or the real property owned or
leased by the Business, in any way to Environmental Laws that, in the aggregate,
would be reasonably likely to have a Material Adverse Effect on the Business.
(c) To the knowledge of Seller, with respect to the Business
or the real property owned or leased by the Business, there have not been and
there are not any events, conditions, circumstances, activities, practices,
incidents or actions on-site or off-site which may reasonably be expected to
interfere with or prevent continued substantial compliance with existing
Environmental Laws after the Closing Date, require investigation or remediation
pursuant to any Environmental Law or otherwise form the basis of any claim,
action or suit under existing Environmental Law based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling, or the emission, discharge, release, or threatened
release into the environment, of any pollutant, contaminant, chemical,
industrial, hazardous, or toxic material or waste, including, without
limitation, any liability arising, or any claim, action, demand, suit,
proceeding, hearing, study, or investigation which may be brought, under RCRA,
Superfund, or similar state or local laws that, in the aggregate, would be
reasonably likely to have a Material Adverse Effect on the Business (an
"Environmental Condition").
(d) To the knowledge of Seller, there are no underground
storage tanks, above ground storage tanks, polychlorinated biphenyls or
asbestos-containing materi-
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als present at any real property constituting part of the Assets or the
leasehold.
Section 3.14 Absence of Undisclosed Liabilities. Except as set forth
in Section 3.14 of the Disclosure Schedule, Seller has no knowledge, with
respect to the Business as of the date hereof, of any material liability or
obligation, contingent or otherwise, other than the Excluded Liabilities (as
defined in Section 7.2 hereof), the liabilities or obligations reflected in the
Seller Financial Statements and the notes thereto or liabilities incurred in the
ordinary course of business subsequent to the date thereof and reflected on the
Closing Date Schedule of Liabilities.
Section 3.15 License, Permits, Etc. Except as set forth in Section
3.15 of the Disclosure Schedule, the licenses and permits relating to Seller's
operation of the Business are in full force and effect and constitute all
material permits, licenses, approvals and other governmental authorizations
which are necessary to the lawful operation of the Business as presently
conducted. To Seller's knowledge, Seller has materially complied with the terms,
conditions and requirements of all such licenses and permits and agrees to
extend or renew expiring licenses and permits as required prior to the Closing.
Seller is not aware of any default under any license or permit to which Seller
is a party or by which it is bound relating to Seller's operation of the
Business. Except as set forth in Section 3.15 of the Disclosure Schedule, no
consent of any governmental agency or entity is required in connection with the
transactions contemplated by this Agreement.
Section 3.16 Labor Matters. No employee, union or other
representative of employees has asserted any material claim or grievance against
the Seller under any collective bargaining agreement or other agreement or any
statute, regulation or order of any governmental entity.
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The Seller has delivered to Buyer true and complete copies of all collective
bargaining agreements concerning the Seller's employees at the Business to which
the Seller is a party. With respect to the Business, Seller is not a party to
any collective bargaining agreements other than those set forth in Schedule 3.16
to the Disclosure Schedule. To the knowledge of Seller, there are no
representation elections, arbitration proceedings, labor strikes, stoppages or
material grievances pending with respect to the employees of Seller at the
Business.
Section 3.17 Employees. Section 3.17 of the Disclosure Schedule sets
forth a list of all employees of the Business having an annual salary in excess
of $60,000, the date of hire of each and the present wage rate of each.
Section 3.18 Intercompany Transactions. Except as set forth in Note
5 to the audited December 31, 1995 financial statements of the Business, Section
3.18 of the Disclosure Schedule describes in general terms all transactions in
excess of $100,000 per annum occurring during the last fiscal year between or
among Seller or its affiliates and the Business which are material to the
Business.
Section 3.19 Customers and Sales. Section 3.19 of the Disclosure
Schedule sets forth a correct and current list of the top 10 customers of the
Business by "gross earnings" (which is defined as total revenue minus total
value of precious metals) during the twelve months ended December 31, 1995.
Except as indicated in Section 3.19 of the Disclosure Schedule, Seller has not
received any written notice indicating that any of these customers intend to
cease doing business with the Business.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
Section 4.1 Organization and Authority of Buyer. (a) Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of Australia. Buyer has heretofore delivered to Seller complete and correct
copies of its corporate constituent documents, as currently in effect. Buyer has
the corporate power and corporate authority to execute and deliver this
Agreement and consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the appropriate corporate
governance body of Buyer and no other corporate proceeding, other than the
shareholder approval required by Section 6.1(e) hereof, on the part of Buyer is
necessary to authorize the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby.
(b) This Agreement has been duly executed and delivered by Buyer and
constitutes, and, when executed and delivered, each of the other agreements,
documents and instruments to be executed and delivered by Buyer pursuant hereto
will constitute, a valid and binding agreement of Buyer, enforceable against
Buyer in accordance with its terms, except that (i) such enforcement may be
subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other laws, now or hereafter in effect, relating to or limiting
creditors' rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the
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discretion of the court before which any proceeding therefor may be brought.
Section 4.2 Consents and Approvals; No Violations. Except for the
shareholder approval required by Section 6.1(e) hereof, neither the execution,
delivery or performance of this Agreement nor the consummation by Buyer of the
transactions contemplated hereby will (a) conflict with or result in any breach
or violation of any provision of the corporate constituent documents of Buyer;
(b) require any filing or registration with, or notice or declaration to, or the
obtaining of any permit, license, authorization, consent or approval of, any
governmental or regulatory authority whether within or outside the United
States; (c) violate, conflict with or result in a default (or any event which,
with notice or lapse of time or both, would constitute a default) under, or
result in any termination, cancellation or acceleration, or give rise to any
such right of termination, cancellation or acceleration under, any of the terms,
conditions or provisions of any note, mortgage, other evidence of indebtedness
or guarantee to which Buyer is a party or by which Buyer or any of its assets is
subject or by which it may be bound; (d) violate any order, injunction, decree,
statute, rule or regulation applicable to Buyer, or (e) result in the creation
or imposition of any Lien upon any properties, assets or business of Buyer,
excluding from the foregoing clauses (b), (c), (d) and (e) such requirements,
conflicts, defaults, rights, Security Interests, Liens, or violations which
would not materially adversely affect the ability of Buyer to consummate the
transactions contemplated by this Agreement or which become applicable as a
result of any acts or omissions by, or the status of or any facts pertaining to,
Seller.
Section 4.3 Litigation. There is no claim, action, suit,
administrative, arbitration or other proceeding or governmental investigation or
inquiry pending against Buyer, by or before any court, governmental or
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regulatory authority or by any third party which challenges the validity of this
Agreement.
Section 4.4 Approval of Rothschild Australia Limited. Buyer has
delivered to Seller a letter agreement (the "Rothschild Letter Agreement")
between Arrow Property & Investments Pty Limited ("Arrow"), the majority
shareholder of Buyer and a subsidiary of Rothschild Australia Limited, and
Buyer, pursuant to which Arrow has agreed to vote all of its shares of Buyer's
capital stock in favor of approval of the transactions contemplated by this
Agreement.
Section 4.5 Certain Fees. Except as set forth in Section 4.5 of the
Buyer's Disclosure Schedule, neither Buyer nor any of its affiliates has
employed any financial advisor or finder or incurred any liability for any
financial advisory or finders' fees in connection with this Agreement or the
transactions contemplated hereby.
ARTICLE V
COVENANTS
Section 5.1 Conduct of the Business. Seller agrees that, during the
period from the date of this Agreement to the Closing, except as otherwise
contemplated by this Agreement or consented to in writing by Buyer:
(a) Seller shall conduct the Business and its operations only
in the ordinary course consistent with past practice and Seller will use its
best efforts to preserve the organization of the Business, the services of the
present officers, employees and agents thereof and to continue business
relationships with suppliers, customers and clients of the Business and to
properly maintain the real property Assets; and
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(b) Seller shall not, except in the ordinary course of
business consistent with past practice (i) sell or dispose of any of the
material properties of the Business or the Assets; provided, that the agreements
between Seller and GEEKAY EXIM (India) Limited may be terminated; (ii) terminate
or materially amend any material contracts, leases or licenses of the Business;
(iii) permit or cause the Business to enter into any new material agreement (iv)
enter into any employment agreement with any employee or make any material
change in the terms of employment of any employee or increase in any manner the
compensation of any of the officers or other employees of the Business, except
for such increases as are granted in the ordinary course of business in
accordance with its customary practices (which shall include normal periodic
performance reviews and related compensation and benefit increases); (v) adopt,
grant, extend or increase the rate or terms of any bonus, insurance, pension or
other employee benefit plan, payment or arrangement made to, for or with any
such officers or employees of the Business, except increases required by any
applicable law, rule or regulation; (vi) make any change in any of the present
accounting methods and practices of the Business, except as approved by Buyer;
or (vii) enter into or assume any mortgage, pledge, conditional sale or other
title retention agreement, or permit any material lien, encumbrance or charge to
be placed upon any of the Assets (other than liens, encumbrances or charges
arising by operation of law).
(c) Seller will use its best efforts to keep and maintain all
improvements to real property, machinery and equipment used in the Business in
good repair and working order (ordinary wear and tear excepted) in accordance
with the past practices of the Business and Seller will duly observe and conform
to all material terms and conditions of the Leases.
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(d) Seller will maintain in full force and effect in all
material respects all insurance coverage for the Business currently in effect
and prior to the Closing shall undertake to obtain equivalent replacement
coverage with respect to any policies hereafter canceled or terminated.
(e) Seller shall not (nor will it permit any of its executive
officers, representatives, directors, agents or any other person) directly or
indirectly solicit, initiate or encourage any inquiries regarding any
Acquisition Proposal (as hereinafter defined), or participate in any
negotiations concerning, or knowingly provide any information to any person
known to be making or proposing to make (or any other person acting on behalf of
or in conjunction with such person) any Acquisition Proposal; nor shall Seller
enter into any contract, agreement, arrangement or understanding, or participate
in discussions or negotiations, relating to an Acquisition Proposal. As used
herein an "Acquisition Proposal" shall mean any proposal for the merger,
amalgamation, consolidation, sale, transfer or other conveyance of all or any
part of the Business or the Assets, directly or indirectly, to any person, other
than (i) the sale of inventory in the ordinary course of business of the
Business including customary transfers or dispositions of inventory or fixed
assets for scrap, and (ii) dispositions of surplus or obsolete fixed assets;
provided, however, an Acquisition Proposal shall not include any of the
foregoing transactions involving Buyer or any affiliate of Buyer.
Section 5.2 Access to Information.
(a) Between the date of this Agreement and the Closing, Seller
shall, with respect to the Business, (i) give Buyer and its authorized
representatives reasonable access to all books, records, offices and other
facilities and properties of Seller; (ii) permit
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Buyer and its authorized representatives to make such inspections thereof as any
of them may reasonably request, including but not limited to environmental
investigations such as ground water or soil sampling; and (iii) cause the
officers of Seller to furnish Buyer and its authorized representatives with such
financial and operating data and other information with respect to the Business
and properties of Seller as any of them may from time to time reasonably
request; provided, that any such investigation shall be conducted during normal
business hours under the supervision of Seller's personnel and in such a manner
as to maintain the confidentiality of this Agreement and the transactions
contemplated hereby and not interfere unreasonably with the business operations
of Seller or the Business, except as otherwise contemplated by this Agreement.
(b) All information concerning Seller furnished or provided by
Seller or its affiliates to Buyer or its representatives (whether furnished
before or after the date of this Agreement) shall be held confidential subject
to the confidentiality agreement between Seller and Buyer (the "Confidentiality
Agreement").
Section 5.3 Consents; Assignment of Certain Contracts. (a) Each of
Seller and Buyer shall cooperate, and use their reasonable best efforts, to make
all filings and obtain all licenses, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities and other
third parties necessary to consummate the transactions contemplated by this
Agreement. In addition to the foregoing, Buyer agrees to provide such assurances
as to financial capability, resources and creditworthiness as may be reasonably
requested by any third party whose consent or approval is sought hereunder.
Notwithstanding the foregoing, nothing herein shall obligate or be construed to
obligate Seller or Buyer to make any payment to any third party in order to
obtain the consent or approval of such third party.
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(b) Seller and Buyer shall promptly file any additional
information requested as soon as practicable after receipt of any request for
additional information. The parties hereto will coordinate and cooperate with
one another in exchanging such information and providing such reasonable
assistance as may be requested in connection with such filings.
(c) Seller is the named party to certain contracts and
agreements which relate to the Business which are currently being performed by
Seller. Said contracts are set forth on Buyer's Schedule 5.3. Prior to the
Closing, Seller shall use its reasonable best efforts to assign such contracts
and agreements to the Buyer (subject, where necessary, to the consent to such
assignment of the other party or parties to such contracts and agreements) and
Seller and Buyer shall cooperate in obtaining all consents necessary to any such
assignment (as so assigned, the "Assigned Contracts").
Section 5.4 Best Efforts. Except as otherwise specifically set forth
herein, each of Seller and Buyer shall cooperate, and use its best efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement, including, without
limitation, the satisfaction of the conditions to the Closing of the
transactions contemplated herein.
Section 5.5 Public Announcements. It is contemplated that
immediately following the execution hereof, Buyer and Seller will issue a press
release (the "Press Release") disclosing such action, the language of which
shall be mutually agreed by Buyer and Seller; provided, that, Seller may include
the Press Release in a press release disclosing other action by Seller and Buyer
shall have no right to require any change or modification of the language
describing such other action by Seller.
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Thereafter, prior to the Closing, except as otherwise agreed to by the parties,
no party shall issue any report, statement or press release or otherwise make
any public statements with respect to this Agreement and the transactions
contemplated hereby, except as in the reasonable judgment of such party may be
required by law or in connection with the obligations of a publicly-held
company, in which case Seller and Buyer will consult with each other with
respect to the issuance of a report, statement or press release as to the
language of any such report, statement or press release. If circumstances (other
than time zone differences) make it impossible to permit such prior consultation
and after the disclosing party has used all reasonable efforts to make such
prior consultation, then any disclosure made shall be no more extensive than is
necessary to meet the minimum legal requirement imposed on the party making such
disclosure. Immediately following the Closing, Seller and Buyer will consult
with each other with respect to the issuance of a joint report, statement or
press release with respect to this Agreement and the transactions contemplated
hereby.
Section 5.6 Covenant to Satisfy Conditions. Seller will use its best
efforts to ensure that the conditions set forth in Article VI hereof are
satisfied, insofar as such matters are within its control and Buyer will use its
best efforts to ensure that the conditions set forth in Article VI hereof are
satisfied, insofar as such matters are within its control. Seller and Buyer
further covenant and agree, with respect to a threatened or pending preliminary
or permanent injunction or other order, decree or ruling or statute, rule,
regulation or executive order that would adversely affect the ability of the
parties hereto to consummate the transactions contemplated hereby, to use all
commercially reasonable efforts to prevent or lift the entry, enactment or
promulgation thereof, as the case may be.
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Section 5.7 Financing. On or prior to the date hereof, Buyer has
delivered to Seller (i) a true and complete copy of a commitment letter (the
"Commitment Letter") executed by Buyer and Credit Suisse (the "Bank") indicating
the Bank's commitment to provide bank financing (the "Bank Financing") for the
acquisition of the Business by Buyer and (ii) a true and complete copy of the
Replacement Precious Metals Agreement (as defined in Section 5.9 hereof). Buyer
has, prior to the date of this Agreement, delivered, and hereafter will deliver
or cause to be delivered, to Seller (or its designated representatives) true and
complete copies of all drafts of all documentation prepared and exchanged by the
parties in respect of the Bank Financing (other than drafts of the Commitment
Letter) such delivery to be made promptly after the receipt of the
documentation. The Bank Financing is sufficient and adequate financing to permit
the Buyer to consummate the transactions contemplated by this Agreement. Buyer
agrees to use its best efforts to obtain the Bank Financing on the terms
contemplated by the Commitment Letter, except for such changes which will not
adversely affect Seller, and otherwise on such terms and conditions as are
reasonably satisfactory to Buyer and Seller; provided however, that, to the
extent they cannot obtain Bank Financing on such terms, Buyer shall otherwise
use its best efforts to obtain financing for the transactions contemplated by
this Agreement on terms reasonably satisfactory to Buyer and Seller. Seller
agrees to cooperate with Buyer in connection with Buyer's obtaining the Bank
Financing, including, without limitation, the establishment of security
arrangements contemplated by the Bank Financing as of the Closing. Following
receipt by Buyer of any written or oral communication to the effect that the
Bank is contemplating not providing the Bank Financing or is terminating or
canceling or modifying in any respect the Commitment Letters, Buyer shall
immediately communicate to Seller the terms thereof and as soon as practicable
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thereafter provide Seller with true, complete and correct copies of any such
written communication.
Section 5.8 Employees; Employee Benefits.
(a) (i) On the Closing Date, each person who is an employee of
the Business immediately prior to the Closing (the "Affected Employees") shall
cease to be an employee of Seller, and (ii) for a one-month period following the
Closing Date, Buyer shall cause the Business to continue to employ each such
Affected Employee in a position substantially similar to that held with the
Business as of the Closing Date and at the same location, with salaries or wages
substantially equivalent to those provided as of such date, except for employees
who (i) shall be terminated "for cause," (ii) voluntarily terminate their
employment, or (iii) prior to the Closing were employed for a contractually
specified time period and are terminated upon expiration of that time period.
Following the Closing Date, Buyer shall, or shall cause the Business to, provide
each Affected Employee with benefits that are substantially comparable in the
aggregate to the benefits provided to each such Affected Employee immediately
prior to the Closing Date. Except as provided in Section 5.8(b), Buyer, in
providing such substantially comparable benefits, shall not be required to
provide or maintain any particular plan or benefit which was provided to or
maintained for Affected Employees prior to the Closing Date. Buyer shall give
full credit for all service with Seller, any ERISA Affiliate or any other
affiliate of such entities (together with ERISA Affiliates, "Affiliates"), and
any predecessor thereto to the extent that service with such predecessor entity
was recognized under the applicable Plan of Seller or any Affiliates, to each
Affected Employee for purposes of eligibility to participate in, vesting or
payment of benefits under, including, but not limited to, eligibility for early
retirement or any subsidized benefit provided for under any employee benefit
plan (including,
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but not limited to, any "employee benefit plan" as defined in Section 3(3) of
ERISA) maintained by Buyer or its subsidiaries (including, without limitation,
any vacation pay plan or policy) on or after the Closing Date. Prior to the
Closing, Seller will furnish Buyer with a list of the length of service with
Seller or its Affiliates for each of the Affected Employees. For purposes of
computing deductible amounts (or like adjustments or limitations on coverage)
under any employee welfare benefit plan (including, without limitation, any
"employee welfare benefit plan" as defined in Section 3(1) of ERISA), expenses
and claims previously recognized for similar purposes under the applicable
welfare benefit plan of Seller or any Affiliate for the current plan year shall
be credited or recognized under the comparable plan maintained after the Closing
Date by Buyer or its subsidiaries for the plan year ending in 1996.
(b) As soon as practicable after (and in any event within 90
days after) and effective as of the Closing Date, (i) Buyer shall establish a
defined benefit pension plan or plans and trust or trusts intended to qualify
under Sections 401(a) and 501(a) of the Code (collectively, the "Buyer Pension
Plan") and (ii) upon receipt by Seller of (A) written evidence of the adoption
of the Buyer Pension Plan and trust thereunder by Buyer and (B) either (x) a
copy of a favorable determination letter issued by the Internal Revenue Service
with respect to the Buyer Pension Plan or (y) an opinion of Buyer's counsel
reasonably satisfactory to Seller's counsel to the effect that a request for
determination has been filed and that the terms of the Buyer Pension Plan and
its related trust meet the requirements for qualification under the respective
provisions of Sections 401(a) and 501(a) of the Code, Seller shall direct the
trustees of each of the Handy & Xxxxxx Bargaining Employees Pension Plan and the
Handy & Xxxxxx Pension Plan (collectively, the "Seller Pension Plans") to
transfer, in cash or, if acceptable to Buyer, in kind, from the
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trusts under the Seller Pension Plans, an amount, determined by an actuary
chosen by Seller (the "Seller Actuary") which shall be equal to the present
value (as of the Closing Date) of the aggregate "projected benefit obligations"
(within the meaning of Statement of Financial Accounting Standards No. 87 ("FAS
No. 87")) in respect of the Affected Employees in the Seller Pension Plans. The
calculation of the present value of such benefits shall be no less than the
minimum amount determined in accordance with (i) Section 414(l) of the Code and
the regulations promulgated thereunder and (ii) all rules of the Pension Benefit
Guaranty Corporation ("PBGC"). The present value of such benefits shall be
determined utilizing a discount rate equal to 6.91%. All other actuarial
assumptions, including, but not limited to, retirement age, turnover, mortality,
salary scale, increases in cost of living, and disability shall be those used by
the Seller for FAS No. 87 reporting purposes with respect to its audited
financial statements for fiscal year 1995. Once the amount is determined as of
the Closing Date, interest at the rate of 6.91% per annum shall be credited from
the Closing Date to the date of transfer. The determination by the Seller
Actuary shall be final and binding (it being understood, however, that the
Seller Actuary shall consult in good faith with an actuary selected by Buyer,
who shall be entitled to review the data, assumptions and methodology utilized,
prior to making any final determination). At the time of transfer of the amount
set forth in this Section 5.8(b), Buyer and the Buyer Pension Plan shall assume
all liabilities for all accrued benefits, including all ancillary benefits,
under the Seller Pension Plans in respect of the Affected Employees and each of
Seller and the Seller Pension Plans shall be relieved of all liabilities for
such benefits.
For a period of at least one year after the Closing Date, the Buyer
Pension Plan shall contain eligibility to participate and eligibility for
benefits xxxx-
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dards, benefit provisions and other provisions that, in aggregate relative
value, are substantially comparable to the eligibility standards, benefits and
other provisions of the Seller Pension Plans. The Buyer Pension Plan shall
further provide that all service of the Affected Employees with Seller and its
Affiliates prior to the Closing Date shall be recognized for all purposes
(including, without limitation, accrual of benefits and eligibility for early or
other retirement benefits).
Upon the transfer of assets in accordance with this Section 5.8(b)
and provided that Buyer has been provided materially accurate information with
respect to the Seller Pension Plans, Buyer agrees to indemnify and hold
harmless, to the fullest extent permitted under applicable law, Seller, its
officers, directors, employees, agents and affiliates from and against any and
all costs, damages, losses, expenses, or other liabilities arising out of or
related to the Buyer Pension Plan for Affected Employees, including benefits
accrued by Affected Employees prior to the Closing Date under the Seller Pension
Plan.
Buyer and Seller shall provide each other such records and
information as may be necessary or appropriate to carry out their obligations
under this Section 5.8(b) or for the purpose of administration of the Buyer
Pension Plan, and they shall cooperate in the filing of documents required by
the transfer of assets and liabilities described herein. Notwithstanding
anything contained herein to the contrary, no such transfer shall take place
until after the 31st day following Seller's filing of all required Forms 5310A
in connection therewith and notification to PBGC, if required.
(c) Notwithstanding anything in paragraph (a) of this Section
to the contrary, in the event that any Affected Employee is discharged by the
Buyer or its subsidiaries after the Closing Date (other than as de-
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scribed in clause (i), (ii) or (iii) of paragraph (a) above), then Buyer shall
treat such Affected Employee, and shall be responsible for salary and severance,
in accordance with any applicable severance plan or program maintained by Buyer.
Buyer shall be responsible and assume all liability for all notices or payments
due to any Affected Employees, and all notices, payments, fines or assessments
due to any government authority, pursuant to any applicable foreign, federal,
state or local law, common law, statute, rule or regulation with respect to the
employment, discharge or layoff of employees by the Buyer after the Closing,
including but not limited to the Worker Adjustment and Retraining Notification
Act and any rules or regulations as have been issued in connection with the
foregoing.
(d) Seller and its Affiliates shall, subject to the
consummation of the transactions contemplated herein, and except as otherwise
provided herein, take whatever reasonable action is necessary or appropriate to
terminate, as of the Closing Date (unless earlier terminated), the active
participation of the Affected Employees in each Plan which is sponsored by
Seller or its Affiliates, including Seller's Handy & Xxxxxx Pension Plan for
Hourly Employees. Affected Employees who are participants as of the Closing Date
in the Handy & Xxxxxx Pension Plan for Hourly Employees shall become fully
vested in their accrued benefits in such plan on the Closing Date.
(e) After the Closing Date, Buyer shall be responsible for,
and shall indemnify and hold harmless Seller and its Affiliates and their
respective officers, directors, employees, affiliates and agents and the
fiduciaries (including plan administrators) of the Plans, from and against, any
and all claims, losses, damages, costs and expenses (including, without
limitation, attorneys' fees and expenses) and other liabilities and obligations
relating to or arising out of (i) all salaries,
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commissions and vacation entitlements accrued but unpaid as of the Closing Date
and post-Closing bonuses due to any Affected Employee, (ii) the liabilities
assumed by Buyer under this Section 5.8 or any failure by Buyer to comply with
the provisions of this Section 5.8, (iii) any claims of, or damages or penalties
sought by, any Affected Employee, or any governmental entity on behalf of or
concerning any Affected Employee, with respect to any act or failure to act by
Buyer to the extent arising from the employment, discharge, layoff or
termination of any Affected Employee who becomes an employee of Buyer after the
Closing Date, and (iv) all Plan obligations and employment relationships in
existence on or after the Closing Date which are assumed by Buyer.
(f) Notwithstanding anything contained in this Section 5.8 to
the contrary, Seller and its Affiliates shall remain responsible for, and shall
indemnify and hold harmless Buyer and its respective officers, directors,
employees, affiliates and agents from and against any and all claims, losses,
damages, costs and expenses (including, without limitation, attorneys' fees and
expenses) and other liabilities relating to or arising out of (i) any plans or
obligations thereunder not assumed by Buyer pursuant to this Section 5.8, (ii)
coverage of any and all claims for medical, dental or other coverage of Affected
Employees and their dependents occurring on or prior to the Closing Date and
continuing on or after the Closing Date so long as such continuing claim relates
to an occurrence prior to the Closing Date within the meaning of the applicable
welfare plan of Seller as in effect on the date of this Agreement, (iii) any
disability, workers compensation claims or welfare claims (medical, dental, life
and disability insurance claims) for disabled Affected Employees and their
dependents, and/or for disabled dependents of Affected Employees, occurring on
or prior to the Closing Date which continue thereafter, and (iv) coverage under
the Xxxxxxx-
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dated Omnibus Budget Reconciliation Act of 1985, as amended, which commenced
prior to the Closing Date for the remainder of any required period under such
law.
(g) With respect to any outstanding participant loans to
Affected Employees under the Handy & Xxxxxx Savings Plan, as of the Closing
Date, Buyer shall cause to be withheld from each such Affected Employee's
regular payroll (so long as such Affected Employee remains employed with Buyer)
all amounts contemplated under such Affected Employee's Promissory Note and
Security Agreement under the Savings Plan and shall remit such amounts to Seller
as soon as practicable (but in no event later than as required under the Code
and ERISA). Nothing in the preceding sentence shall affect any right of Seller
in respect of such Promissory Note and Security Agreement, including after any
applicable Affected Employee is terminated from employment with Buyer. Buyer and
Seller shall provide each other with information necessary to effectuate the
foregoing arrangement.
Section 5.9 Replacement Precious Metals Agreement. Prior to
the Closing, Buyer shall enter into a precious metals agreement (the
"Replacement Precious Metals Agreement") satisfactory to Seller with a suitable
financial institution (the "Replacement Precious Metals Institution") in an
amount of at least $150,000,000 pursuant to which Buyer shall procure an amount
of "fine ounces" (as recognized by the London Metals Exchange) of gold, silver,
platinum and palladium ("Precious Metals") equal to or in excess of (i) the
estimated amount of the total Precious Metals inventory (the "Estimated Precious
Metals Inventory") on hand as of the Closing Date at the Attleboro, South
Windsor, Phoenix and Villa Park facilities (the "Facilities") less (ii) the
Seller Leased Gold (as defined in Section 5.10 hereof) and the net amount of any
Precious Metals consigned to the Business by its customers (the "Net Customer
Consigned Precious Metals") from the Replacement Precious Metals Institution,
and on
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the Closing Date the Replacement Precious Metals Institution shall deliver to
Seller, and Seller shall take unconditional title to, an amount of fine ounces
of Precious Metals by weight equal to (A) the aggregate weight of the Estimated
Precious Metals Inventory less (B) the Seller Leased Gold and the Net Customer
Consigned Precious Metals (the "Replacement Precious Metals") pursuant to the
terms set forth therein. Upon receipt of the Replacement Precious Metals by
Seller, the Replacement Precious Metals Institution shall take unconditional
title to an equivalent amount of Precious Metals inventory theretofore owned by
Seller and located at the Facilities. Seller shall provide to Buyer its estimate
of the Estimated Precious Metals Inventory five days prior to the Closing.
Section 5.10 Seller Gold Leasing Agreement. Prior to, but effective
as of, the Closing, Seller and Buyer shall enter into the Seller Gold Leasing
Agreement, a form of which is attached hereto as Exhibit B, pursuant to which
Seller shall lease to Buyer the Seller Leased Gold, which shall consist of up to
25,000 fine ounces of "good delivery bullion" gold, for a period of up to a
maximum of 12 months from the Closing Date, subject to the terms and conditions
set forth therein.
Section 5.11 Sales Agreement. Prior to, but effective as of, the
Closing, Seller and/or its affiliates, as the case may be, and Buyer shall enter
into the Sales Agreement, a form of which is attached hereto as Exhibit C,
pursuant to which Seller and its affiliates agree to continue as customers of
the Business in accordance with historical practice and Buyer shall provide
certain services to Seller and its affiliates on the terms and conditions set
forth therein.
Section 5.12 Interim Services Agreement. Prior to, but effective as
of, the Closing, Seller and Buyer
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shall enter into the Interim Services Agreement, a form of which is attached
hereto as Exhibit D.
Section 5.13 Supplemental Disclosure. Seller, on the one hand, and
Buyer, on the other hand, shall from time to time prior to the Closing
supplement or amend its respective Disclosure Schedule with respect to any
matter hereafter arising or discovered which if existing or known at the date of
this Agreement would have been required to be set forth or described in such
Disclosure Schedule. No such supplemental or amended disclosure shall be deemed
to have cured any breach of any representation or warranty made in this
Agreement constituting a Material Adverse Effect on the Business or the Assets
unless consented to in writing by the other party, in which case such
supplemental or amended Disclosure Schedule will be deemed to have cured any
such breach made in this Agreement and to have been disclosed as of the date of
this Agreement for purposes of determining whether or not the conditions set
forth in Article VI hereof have been satisfied.
Section 5.14 Closing Date Schedule of Liabilities.
(a) Immediately after the Closing, Seller shall cause a
schedule of liabilities of the Business as of the Closing Date (the "Closing
Date Schedule of Liabilities") to be prepared. Seller shall deliver the Closing
Date Schedule of Liabilities to Buyer within 45 days of the Closing Date. The
Closing Date Schedule of Liabilities shall be prepared from the books and
records of the Business and shall be prepared on a basis consistent with the
financial statements prepared by the Business at year end as included in Seller
Financial Statements.
(b) Buyer shall promptly review the Closing Date Schedule of
Liabilities. Seller shall cooperate
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with Buyer's auditors, Coopers & Xxxxxxx, in connection with a review by such
auditors of such Closing Date Schedule of Liabilities. Should Buyer determine
that the Closing Date Schedule of Liabilities is not in accordance with this
Agreement, Buyer shall so notify Seller within 30 days of receipt of the Closing
Date Schedule of Liabilities of those items on which Buyer is not in agreement
(the "Notice"). The parties shall then promptly designate representatives who
shall meet for the purpose of resolving the differences between the parties. If
such differences have not been resolved within 30 days after receipt by Seller
of the Notice, the remaining items shall be submitted to a jointly selected
independent accounting firm which shall have no prior relationship with Buyer or
Seller (an "Independent Accounting Firm") for resolution in accordance with this
Agreement. The decision of such Independent Accounting Firm shall be binding on
both parties and the expense of such Independent Accounting Firm shall be shared
equally by the parties.
Section 5.15 Silver Price Quotation Services. Seller hereby
covenants that it shall continue to publish Seller's silver spot price after the
Closing Date consistent with its past practice and on the same terms and subject
to the same conditions that such service is, as of the date of this Agreement,
rendered and shall be rendered in the future to third parties unaffiliated with
the Seller or Buyer; provided, that if Seller shall determine to discontinue
such service, Seller shall offer to Buyer a right of first refusal to render
such service in place of Seller and; provided, further, that if Seller
determines to sell such silver quotation service, Seller shall not be required
to offer to Buyer the option to allow Buyer to render such service in place of
Seller.
Section 5.16 Precious Metals Inventory. A physical inventory of the
Precious Metals on hand, including clean-up lots, at the Facilities (the "Final
Pre-
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cious Metals Inventory") shall be taken as of the Closing Date by the employees
of Seller, observed by representatives of Buyer and, at their respective
options, their respective independent public accountants to determine the
aggregate weight in xxxx ounces of the Precious Metals on hand. All inventory
will be identified by a lot number. Each lot of material will be categorized as
either (i) unsettled customer lots or (ii) Seller's Final Precious Metals
Inventory. Lots identified as Seller's Final Precious Metals Inventory will be
processed in accordance with the Sales Agreement. If the aggregate weight of
"fine ounces" of the Replacement Precious Metals conveyed to Seller on the
Closing Date is greater than (i) the aggregate weight of the Final Precious
Metals Inventory determined in accordance with the Sales Agreement less (ii) the
aggregate weight of the Seller Leased Gold and the Net Customer Consigned
Precious Metals, Seller shall, not later than 2 days following the determination
of the Final Precious Metals Inventory, convey, transfer and deliver an amount
of Precious Metals equal by weight to the aggregate weight of such excess to
Buyer. If the aggregate weight of the Replacement Precious Metals conveyed to
Seller on the Closing Date is less than the (i) aggregate weight of the Final
Precious Metals Inventory less (ii) the aggregate weight of the Seller Leased
Gold and the Net Customer Consigned Precious Metals, Buyer shall, not later than
2 days following the determination of the Final Precious Metals Inventory,
convey, transfer and deliver an amount of Precious Metals equal to the aggregate
weight of such shortage to Seller.
Section 5.17 Completion of Work-in-Process Inventory. For each lot
of Seller's Final Precious Metals Inventory, Seller shall, not later than 2 days
following the determination of the Final Precious Metals assay, pursuant to the
Sales Agreement, pay to Buyer an amount, in immediately available funds, the
treatment and refining charges as set forth in the Sales Agreement.
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Section 5.18 Transfer of Environmental Permits. Seller covenants and
agrees to use its best efforts (i) to transfer the Environmental Permits held by
Seller and its affiliates, including such Environmental Permits held by American
Chemical & Refining, Inc., with respect to the Business or the real property
owned or leased by the Business, to Buyer, and (ii) if any such Environmental
Permits cannot be lawfully transferred to Buyer, to cooperate with and assist
Buyer in its application for such replacement Environmental Permits as shall be
required to operate the Business or the real property owned or leased by the
Business as it shall be operated on the Closing Date. Seller further covenants
and agrees to allow Buyer to use such Environmental Permits held by Seller and
its affiliates and used by the Business until such Environmental Permits are
transferred to Buyer or new permits are granted to Buyer.
Section 5.19 Covenant Not to Compete.
(a) In furtherance of the sale to Buyer of the Assets and the
Business, the Seller shall not, and shall cause its subsidiaries and controlled
affiliates not to, directly or indirectly, through equity ownership or otherwise
anywhere in the world, except as the Seller operates its businesses in Canada
and Singapore on the Closing Date:
(i) compete with Buyer (A) in the precious metals
refining business for a period of ten years following the
Closing Date, or (B) in the component retrieval business for a
period of five years following the Closing Date (except that
nothing shall prevent Seller from purchasing or using
electronic components (including components retrieved by the
Business) for use as parts of other products sold by Seller),
in either case as such businesses
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are conducted on the Closing Date by the Business; provided,
that any "incidental" or internal collection or refining by
the Seller and its subsidiaries and affiliates related to
concentration of solutions containing precious metals shall
not be deemed to be a violation of the foregoing; provided,
further, that Seller shall not solicit third party customers
for such "incidental" or internal collection and refining;
provided, further, that nothing herein shall be construed to
prevent the Seller from owning, as an investment, up to 5% of
a class of equity securities issued by any competitor of Buyer
that is publicly traded.
(ii) for a period of ten years in the case of the
precious metals refining business and five years in the case
of the component retrieval business, communicate with or
contact any customers of the Business for the purpose of
soliciting such customers to purchase any goods, products or
services of the type being manufactured, offered or sold by
the Business as of the Closing Date; nor
(iii) use or disclose to others any trade secrets or
other confidential information relating solely to the Assets
and the Business, including the names, addresses and any other
information relating to the aforesaid customers and confirms
that such information shall constitute exclusive property of
Buyer and agrees that any such property shall not be used by
the Seller or disclosed to other persons or business
enterprises;
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provided, that nothing in this Section 5.19 shall prevent or be construed to
prevent Seller and its subsidiaries and affiliates from conducting and
continuing to conduct the businesses (and any natural extensions or expansions
thereof), other than the Business, which they conduct or propose to conduct as
of the Closing Date; provided, however, that nothing in this Section 5.19 shall
be construed to prevent the Seller or any of its subsidiaries or affiliates from
effecting a merger, consolidation or similar business combination with, or
making an acquisition, in whole or in part, of the equity or assets of an entity
that competes directly with the Buyer with respect to any of the goods, products
or services of the Business existing on the Closing Date (the "Acquired
Entity"), so long as Seller uses reasonable good faith efforts to dispose of the
portions of the Acquired Entity which compete directly with the Buyer with
respect to such goods, products or services (the "Competing Business") within a
reasonable period of time, not to exceed two years, following completion of such
business combination or acquisition; provided, further, that Seller shall offer
to Buyer a right of first refusal to purchase such Competing Business on terms
and conditions substantially similar to those on which Seller has determined it
will sell the Competing Business to a third party purchaser which has made such
an offer to purchase (a "Purchase Offer") the Competing Business. Seller shall
give Buyer written notice (an "Offer Notice") promptly upon receipt of a
Purchase Offer acceptable to Seller, which Offer Notice shall contain the
material terms of the Purchase Offer. Buyer shall have 30 days to give notice to
Seller of its decision to purchase the Competing Business (a "Buyer's Notice")
on terms and conditions substantially similar to the Purchase Offer. If Buyer
fails to give a Buyer's Notice to Seller within 30 days of Buyer's receipt of
the Offer Notice, Seller may sell the Competing Business to the prospective
third party purchaser. If Buyer gives a Buyer's Notice to Seller, Buyer shall be
required to consummate the purchase of the Competing
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Business within 90 days of its delivery of the Buyer's Notice. If the terms of
the Purchaser's Offer include any non-cash consideration, Buyer may use
substantially similar non-cash consideration in connection with its purchase of
the Competing Business, or, if it is not possible or practicable for Buyer to
use such substantially similar non-cash consideration, Buyer may substitute cash
for the fair market value of such non-cash consideration (such fair market value
to be mutually agreed by Buyer and Seller, or, in the absence of agreement, by
an independent investment banker). In the event Buyer fails to purchase the
Competing Business within such 90 day period following the delivery of Buyer's
Notice, Seller shall be free to retain such Competing Business or sell it to any
third party without regard to the foregoing right of first refusal.
(b) For a period of five (5) years following the Closing Date,
Seller shall purchase its requirements of fine silver grain ("Grain"), fine
silver crystal ("Crystal") and fine silver crystal which has been analyzed to
meet Seller's chemistry specifications ("Catalyst Grade Silver"), from Buyer.
Seller will provide an equivalent quantity of silver to Buyer in London for the
silver quantity received in the form of Catalyst Grade Silver and Grain. For a
period of one year after the Closing Date, Seller will pay Buyer a premium of
$0.04 per ounce for Grain, $0.01 per ounce for Catalyst Grade Silver, and Seller
will pay no premium for Crystal; provided, that Buyer and Seller agree to
negotiate in good faith to make adjustments in such price at the end of such one
year period in light of then prevailing market conditions. It is agreed that for
a period of five (5) years following the Closing Date, Buyer shall not, and
shall cause the Business not to, directly or indirectly, anywhere in North
America, compete with Seller (x) in the manufacture, distribution, marketing or
sale of any silver products or silver alloy products, (y) in the manufacture,
distribution, marketing or sale of
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any fabricated sheet or wire products containing silver, or (z) in the
distribution, marketing, or sale of Catalyst Grade Silver, or cast industrial
products to any purchaser. Notwithstanding the foregoing, Buyer may distribute,
market and sell Crystal silver and fine silver Grain to financial institutions,
recognized traders (non-manufacturers) and refiners of precious metals, and fine
silver Grain to customers who are not currently customers of Seller as listed on
Schedule 5.19 hereto. Nothing in this Agreement shall prevent (i) Buyer from
manufacturing, distributing, marketing or sales of gold alloy products, or (ii)
Buyer's Canadian subsidiary from manufacturing, distributing, marketing or
selling silver products generated from such Canadian affiliate's refinery in
Vancouver, Canada.
(c) The parties intend that the covenant contained in the
preceding Sections 5.19(a) and (b) shall be construed as a series of separate
covenants, one for each country, county and city included within each state and,
except for geographic coverage, each such separate covenant shall be deemed
identical. The parties agree that the covenants included in this Section 5.19
are, taken as a whole, reasonable in their geographic scope and their duration
and no party shall raise any issue of the reasonableness of the scope or
duration of the covenants in any proceeding to enforce any such covenants. If,
in any judicial proceeding, a court shall refuse to enforce any of the separate
covenants deemed included in this Section 5.19, then the unenforceable covenant
shall be deemed eliminated from these provisions for the purpose of those
proceedings to the extent necessary to permit the remaining separate covenants
to be enforced.
Section 5.20 Buyer's Covenants. Buyer covenants and agrees: (a) to
return all Net Customer Consigned Precious Metals in the possession of the
Business on the Closing Date to the named owners of such consigned Precious
Metals in accordance with the agreements of the
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Business with such named owners and in accordance with industry practice; and
(b) if required by applicable law or the rules and regulations
of the Australian Stock Exchange in order to consummate the transactions
contemplated hereby, Buyer, acting through its Board of Directors, shall, in
accordance with applicable law and the rules and regulations of the Australian
Stock Exchange:
(i) promptly and duly call, give notice of, convene and
hold a special meeting of its shareholders (the "Special
Meeting") as soon as practicable following the execution of
this Agreement;
(ii) prepare and file with the required Australian
authorities any proxy or information statement or similar
disclosure document (the "Disclosure Statement") relating to
the transactions contemplated hereby and this Agreement and
use its reasonable efforts (x) to obtain and furnish the
information required to be included by the required Australian
authorities in the Disclosure Statement and cause a definitive
Disclosure Statement to be mailed to its shareholders and (y)
to obtain the necessary approvals by its shareholders of the
transactions contemplated hereby;
(iii) include in the Disclosure Statement the
recommendation of the Board of Directors of Buyer that
shareholders of Buyer vote in favor of the approval of the
transactions contemplated hereby and the adoption of this
Agreement; and
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(iv) provide Seller with drafts of the Disclosure
Statement prior to the filing of such Disclosure Statement and
Buyer will consider in good faith any comments on the
Disclosure Statement received from Seller or its counsel.
Section 5.21 Nondisclosure. If this Agreement and the transactions
provided for herein shall be terminated or abandoned for any reason whatsoever,
each party shall (a) return to the other party any and all information and data
furnished to such party in connection herewith and (b) hold in confidence its
knowledge of any and all proprietary, confidential and secret information or
data and not disclose or publish the same directly or indirectly (i) without the
prior written consent of such other party or (ii) until the same has been
theretofore publicly disclosed by such other party or otherwise ceased to be
secret or confidential as evidenced by general public knowledge; provided,
however, that each party shall have the right to disclose such information,
without consent, to the extent that such party is required by law to do so. The
foregoing provisions are intended to supplement and not supersede any existing
confidentiality agreement between the parties.
Section 5.22 Trademark Registrations, Corporate Names. As of the
Closing Date, if any of the Intellectual Property to be transferred to Buyer
hereunder is in the process of registration or renewal, or is entitled to be as
of the Closing, but has not been, registered with the U.S. Patent and Trademark
Office, U.S. Copyright Office, or similar U.S. or foreign patent, trademark or
copyright authorities, Seller shall, at the request of Buyer, reasonably assist
Buyer in pursuing and securing any and all such registrations in the name of
Buyer. Such assistance by Seller shall not include any requirement on Seller to
engage in litigation with, or make any
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payments to, third parties, including (without limitation), governmental
agencies and entities.
Section 5.23 Certain Major Customers. Buyer and Seller covenant and
agree to cooperate in contacting certain major customers of the Business set
forth on Schedule 5.23 hereto (the "Major Customers") prior to the Closing (i)
to inform such Major Customers of the transactions proposed hereby, and (ii)
to encourage such Major Customers to remain customers of the Business after the
Closing. The parties further covenant and agree to promptly notify the other
party hereto of their receipt of any written or verbal notice from any Major
Customer of its intention not to continue to be a customer of the Business after
the Closing. Schedule 5.23 shall include the fiscal year 1995 sales revenues
with respect to each of such Major Customers.
Section 5.24 Real Property Covenants.
(a) Leases. With regard to all Leases, Seller agrees as
follows:
(i) Assignment. Seller agrees to use its best efforts to assign and
transfer all of its right, title and interest as tenant under all
such Leases, and to obtain and deliver such consents as are required
under the relevant Lease and, if Seller is entitled to obtain an
estoppel from the landlord(s) under the terms of the applicable
Lease and in a form as is required under such Lease, estoppels from
the landlord(s) thereof. Seller agrees to hold Buyer harmless and
indemnify it with respect to any and all claims or demands arising
under any such Lease prior to the date of Closing, which agreement
and undertaking shall survive the Closing hereunder.
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(ii) Lease Documents. Seller agrees to deliver true, accurate and
complete copies of the executed counterparts of each and every Lease
and any amendments, extensions or modifications thereof, on or
before the Closing Date.
(b) Casualties; Risk of Loss to Real Property. (i) If a
casualty to any of the real property Assets should occur prior to the Closing,
then (i) Seller shall procure and deliver the insurance proceeds recovered by
Seller to Buyer; and (ii) Seller shall pay or allow a settlement credit for the
amount by which the estimated costs of such repairs exceed the available net
insurance proceeds. The estimate of any such repair costs shall be mutually
agreed by the parties; if no such agreement can be reached, a mutually agreed
upon independent third party shall be appointed to estimate the cost of such
repairs. Such independent third party's good faith estimate shall be final;
provided, that in no case shall the estimated cost to repair such damage exceed
the fair market value of such real property Asset.
(c) Adjustment Items. Buyer and Seller covenant and agree that
the following items shall be adjusted between Buyer and Seller as of the Closing
Date: occupancy rents; security deposits and all interest due thereon; real
estate taxes; sewer rents and charges; water rents and charges; front foot
benefit charges (if applicable); utilities and fuel oil; and all other operating
and maintenance charges with respect to each real property Asset (the
"Adjustment Items"). Buyer and Seller covenant and agree (i) to cooperate and
use their respective best efforts to promptly establish the net amount of such
Adjustment Items and (ii) to pay the net amount of such Adjustment Items to the
appropriate party hereto, as the case may be, promptly after the Closing.
Section 5.25 Connecticut Transfer Act. Seller shall assume all
liabilities, duties and responsibilities
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imposed by or arising from the Connecticut Transfer Act, Conn. Gen. Stat.
Section 22a-134 et seq., as amended (the "Act"). Such compliance shall include,
but not be limited to, providing Buyer with a copy of any and all filings and
site assessments made pursuant to the requirements of the Act, preparing and
implementing any site remediation plan required as a result of complying with
the Act and compensating Buyer for any claims, losses, damages, liabilities,
costs and other expenses related to the Act. If Seller does not make a filing
pursuant to the Act, Seller shall provide at Closing an affidavit that it has
reviewed the Act and has determined that the Act does not apply to the
transactions contemplated by this Agreement.
Section 5.26 Estimated Assumed Liabilities. At least two days before
the Closing, Seller shall provide to Buyer an estimate of the balance sheet
liabilities to be assumed by Buyer at the Closing (the "Estimated Assumed
Liabilities"), which Estimated Assumed Liabilities shall be used to determine
the Closing Payment pursuant to Section 1.1 (b)(ii) hereof.
Section 5.27 Handy & Xxxxxx Canada, Limited. It is agreed that the
Buyer will assume the commercial relationships to provide refining services,
including all sales and marketing activities and responsibility for settlement,
to the customers of Handy & Xxxxxx of Canada, Ltd. ("H&H Canada"). Buyer will
enter into a purchase agreement with H&H Canada (the "H&H Canada Agreement") for
the continuing use of the Toronto facility for collection and preprocessing of
scrap containing precious metals. Buyer and Seller agree to negotiate in good
faith and to enter into the definitive H&H Canada Agreement prior to the
Closing. The term of the H&H Canada Agreement will be 10 years. With regard to
existing customers of H&H Canada on the Closing Date ("Existing Customers"),
Buyer agrees to continue to use the Toronto facilities for the term of the H&H
Canada Agreement for all orders by such Existing Customers to the extent the
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Toronto facility has the capability to perform such services. The use of the
Toronto facility will be paid for based on a division of revenues derived from
the business. Except as set forth below, future revenues will be divided on the
same percentage as 1995, as set forth by customer on Section 5.27 of the
Disclosure Schedule, or, for such Existing Customers on such Schedule without
such percentage of revenue distribution, as follows:
Buyer's Revenues 40%
H&H Canada's Revenues (for
Collection and Preprocessing) 60%
New customers of H&H Canada established by Buyer requiring such services as are
provided by the Toronto facility will be serviced by such facility on the same
terms as above; provided, that such terms may be modified by mutual agreement of
the parties depending on market and prevailing economic conditions.
Notwithstanding the forgoing, if Buyer's fixed costs with respect to one or more
customer(s) (including costs with respect to third party smelters) materially
increase, then the division of future revenues shall be renegotiated in good
faith by Buyer and H&H Canada and failing to reach such agreement after good
faith negotiations Buyer shall not be bound thereafter with respect to such
customer or customers. New customers requiring services not provided by the
Toronto facility may be serviced as determined by Buyer.
Section 5.28 The CIT Group Equipment Lease. Seller covenants and
agrees to pay to The CIT Group/Equipment Financing, Inc. ("CIT") all amounts
owed or to become due to CIT through the end of the Master Lease, dated as of
August 10, 1987, between CIT and Seller (the "Master Lease"), such that the
Business shall obtain clear title to the equipment which is the subject matter
or such Master Lease.
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Section 5.29 Third Party Precious Metal. The Business has, and on
the Closing Date will continue to have, in its possession certain Precious
Metals owned by customers of the Business (the "Third Party Precious Metals").
Such Third Party Precious Metals have been delivered to the Business in the
regular course the Business for certain processing, refining and other services
to be performed by the Business, and are Excluded Assets under this Agreement.
Buyer and Seller hereby covenant and agree to contact the customers who own such
Third Party Precious Metals to inform such customers (i) of the pending sale of
the Business to Buyer, (ii) that, after the Closing, Buyer shall be obligated to
return such Third Party Precious Metals to each of the customers owning such
Third Party Precious Metals, and (iii) that, after the Closing, such customers
may only look to Buyer to return such Third Party Precious Metals. Buyer further
covenants and agrees that, after the Closing, (a) Buyer shall be obligated to
return such Third Party Precious Metals to the respective customers of the
Business, (b) Buyer shall indemnify and hold harmless Seller from any loss,
charge, liability or claim of any kind whatsoever related to the return of the
Third Party Precious Metals. In the event that any customer of the Business is
unwilling to look solely to Buyer to replace such customer's Third Party
Precious Metal after the Closing, Seller shall, if practicable, return such
customer's Third Party Precious Metals before the Closing, or, if it is not
practicable to so return such customer's Third Party Precious Metals before the
Closing, as soon as reasonably possible after the Closing; provided, that Buyer
shall replace and deliver to Seller the equivalent amount of any Seller owned
Precious Metals which are delivered to customers in place of any Third Party
Precious Metals.
Section 5.30 Phase II Environmental Study. Buyer shall, at Buyer's
sole cost and expense, promptly after the date of this Agreement, engage an
appropriate
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environmental consultant to perform a phase II environmental study (the "Phase
II Studies") of each of the Facilities. If the results of such Phase II Studies
reveal any Environmental Condition which is a violation of Environmental Laws or
Environmental Permits (as such laws and permit requirements exist on the Closing
Date), then (i) Seller shall remediate, cure, and resolve such Environmental
Condition at Seller's sole cost and expense, either before or, with Buyer's
consent, after the Closing Date, or (ii) Seller shall reduce the adjusted
Purchase Price by the mutually agreed cost to complete such remediation, cure or
resolution; provided, that Seller shall be under no obligation to remediate,
cure or resolve any condition which is not a violation of Environmental Laws or
Environmental Permits (as such laws and permit requirements exist on the Closing
Date). Any such amounts paid by Seller or reduction in adjusted Purchase Price,
as the case may be, shall be counted towards Seller's maximum indemnification
liability under Section 9.2(b)(ii) hereof.
Section 5.31 Environmental Consent Order.
(a) Prior to the Closing Date, Seller shall enter into a
definitive consent order (the "Definitive Consent Order") with the State of
Connecticut with respect to certain environmental matters. The Definitive
Consent Order shall be, with respect to the South Windsor Facility,
substantially similar to, and shall impose obligations and requirements not
materially more onerous than those set forth in, the draft consent order (the
"Draft Consent Order") attached hereto as Exhibit K. At the Closing, Seller and
Buyer shall enter into an environmental undertaking (the "Environmental
Undertaking") pursuant to which the responsibilities and obligations set forth
in the Definitive Consent Order shall be allocated between Buyer and Seller
after the Closing. The Environmental Undertaking shall allocate the
environmental obligations and responsibilities which
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are the subject matter of the Definitive Consent Order and which relate to the
ongoing operation of the South Windsor Facility to Buyer or to a subsidiary of
Buyer. If requested by the State of Connecticut, Buyer shall enter into a
supplemental consent order, undertaking or addendum to the Definitive Consent
Order consistent with the foregoing.
(b) With respect to expenditures related to the Definitive
Consent Order, whether occurring before or after the Closing Date, (i) Buyer
agrees to pay, perform and discharge, in accordance with the Definitive Consent
Order, any and all of the "up-front" payment obligations relating to the South
Windsor Facility up to $250,000 (the "Primary Environmental Payment"), (ii)
Seller agrees to pay, perform and discharge, in accordance with the Definitive
Consent Order, any and all of the "up-front" payment obligations relating to the
South Windsor Facility in excess of the Primary Environmental Payment, up to a
maximum of $120,000 (the "Secondary Environmental Payment"), and (iii) Buyer
further agrees to pay, perform and discharge, in accordance with the Definitive
Consent Order, any and all of the "up-front" payment obligations relating to the
South Windsor Facility in excess of the Primary Environmental Payment and the
Secondary Environmental Payment (i.e. any amounts in excess of an aggregate
total of $370,000).
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF THE PARTIES
Section 6.1 Conditions to Each Party's Obligation. The respective
obligation of each party to consummate the transactions contemplated herein is
subject to the satisfaction at or prior to the Closing of the following
conditions:
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(a) No statute, rule or regulation shall have been enacted,
entered, promulgated or enforced by any court or governmental authority which
prohibits or restricts the consummation of the transactions contemplated hereby;
(b) There shall not be in effect any judgment, order,
injunction or decree of any court of competent jurisdiction enjoining the
consummation of the transactions contemplated hereby;
(c) There shall not be any suit, action, investigation,
inquiry or other proceeding instituted, pending or threatened by any
governmental or other regulatory or administrative agency or commission which
seeks to enjoin or otherwise prevent consummation of the transactions
contemplated hereby;
(d) Any waiting periods applicable to the transactions
contemplated by this Agreement under applicable Australian antitrust or trade
regulation laws and regulations shall have expired or been terminated;
(e) Buyer shall have received such approval of the
shareholders of Buyer as is required by the rules and regulations of the
Australian Stock Exchange applicable to transactions of the type contemplated by
this Agreement in order to lawfully consummate the transactions set forth
herein;
(f) Buyer and Seller shall have entered into the H&H Canada
Agreement; and
(g) Buyer and Seller shall have executed the Environmental
Undertaking and any further documentation related to the Definitive Consent
Order required by the State of Connecticut.
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Section 6.2 Conditions to Obligations of Seller. The
obligations of Seller to consummate the transactions contemplated hereby are
further subject to the satisfaction (or waiver) at or prior to the Closing of
the following conditions:
(a) The representations and warranties of Buyer contained in
this Agreement shall be true and correct in all material respects at the date
hereof and as of the Closing as if made at and as of such time, except for
changes permitted or contemplated hereby and except for representations which
are as of a specific date;
(b) Buyer shall have performed in all material respects its
obligations under this Agreement required to be performed by it at or prior to
the Closing pursuant to the terms hereof;
(c) Buyer shall have delivered to Seller a certificate
substantially in the form annexed as Exhibit G hereto, dated as of the Closing
executed by an appropriate officer of Buyer;
(d) Buyer shall have delivered to Seller or its affiliates
those items set forth in Section 1.3 hereof;
(e) Seller shall have received an opinion of Buyer's legal
counsel, dated the Closing Date, substantially in the form annexed as Exhibit H
hereto; and
(f) Seller shall have received and taken unconditional
ownership, title, custody and possession of the Replacement Precious Metals.
Section 6.3 Conditions to Obligations of Buyer. The obligations of
Buyer to consummate the transactions contemplated hereby are further subject to
the satisfac-
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tion (or waiver) at or prior to the Closing of the following conditions:
(a) The representations and warranties of Seller contained in
this Agreement shall be true and correct in all material respects at the date
hereof and as of the Closing as if made at and as of such time, except for
changes permitted or contemplated hereby and except for representations which
are as of a specific date;
(b) Seller shall have performed in all material respects its
obligations under this Agreement required to be performed by it at or prior to
the Closing pursuant to the terms hereof;
(c) Seller shall have delivered to Buyer a certificate
substantially in the form annexed as Exhibit G hereto, dated as of the Closing
and executed by an appropriate officer of Seller;
(d) Seller or its affiliates shall have delivered to Buyer
those items set forth in Section 1.3 hereof;
(e) Buyer shall have received an opinion of internal counsel
to Seller, dated the Closing Date, substantially in the form annexed as Exhibit
I hereto;
(f) Buyer shall have consummated the transactions contemplated
by the Commitment Letter and Buyer has, and will at the Closing have, sufficient
immediately available funds, in cash, to pay the Purchase Price, to provide the
Business with sufficient working capital and to pay any other amounts payable
pursuant to this Agreement and to effect the transactions contemplated hereby;
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(g) Buyer and Seller collectively shall not have received
verbal or written notice from a number of the Major Customers representing 30%
or more of the fiscal year 1995 total sales revenue from such Major Customers,
as set forth on Schedule 5.23 hereto, in the aggregate, to the effect that such
Major Consumers do not intend to continue as customers of the Business after the
Closing; and
(h) Seller shall have received the consents of the landlords
of the Villa Park and Phoenix facilities for the assignment of the leases of
such facilities to Buyer.
Section 6.4 Materiality of Conditions. Notwithstanding anything
contained herein, no condition involving the accuracy of representations and
warranties made by Seller as of the date hereof or the Closing Date (without
giving effect to any "materiality" limitation or Material Adverse Effect
qualifier set forth therein), or the furnishing of an officer's or other
certificate shall be deemed not fulfilled, and Buyer shall not be entitled to
fail to consummate the transactions contemplated by this Agreement or terminate
this Agreement on such basis, if the respects in which such representations and
warranties are inaccurate or the certificates do not conform to what is
prescribed by this Agreement, in the aggregate, do not result in a Material
Adverse Effect to the Business or the Assets.
ARTICLE VII
ASSUMPTION OF CERTAIN LIABILITIES AND OBLIGATIONS
Section 7.1 Assumed Liabilities. Subject to Section 7.2 of this
Agreement, Buyer shall assume and be responsible on the Closing Date for only
the following liabilities and obligations of the Business (such liabil-
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ities and obligations being hereinafter referred to collectively as the "Assumed
Liabilities"):
(a) all liabilities, contingencies, and obligations reflected
on or referred to in the Closing Date Schedule of Liabilities and any notes
thereto; and
(b) all liabilities, obligations and duties to perform any and
all Assigned Contracts and all commitments of any kind entered into by the
Seller on or prior to the Closing Date which relate to the Business or the
Assets;
provided, that the Assumed Liabilities shall not include any liabilities of the
Business to third party smelters existing on the Closing Date owed in connection
with any Precious Metals which constitute Excluded Assets. At the Closing, Buyer
will deliver to Seller the Undertaking, substantially in the form of Exhibit J
hereto, whereby Buyer will assume and agree to pay and discharge the Assumed
Liabilities. Section 7.1 of the Disclosure Schedule sets forth a non-exhaustive
list of examples of items which shall be Assumed Liabilities.
Section 7.2 Non-Assumed Liabilities. (a) Except for the Assumed
Liabilities, Buyer does not assume or agree to pay, satisfy, discharge or
perform, and shall not be deemed by virtue of the execution and delivery of this
Agreement, or of any instrument, paper or document delivered by it pursuant to
this Agreement, or as a result of the consummation of the transactions
contemplated by this Agreement, to have assumed or become a successor to, or to
have agreed to pay, satisfy, discharge or perform, any liability, obligation or
indebtedness (whether absolute, accrued, or contingent, whether filed or
asserted prior to or after the Closing Date) all of which, except for the
Assumed Liabilities, Seller agrees to pay, satisfy, discharge and perform (the
"Excluded Liabilities").
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(b) Any instruments, papers and documents which shall be
executed and delivered by Buyer in connection with the assumption of the Assumed
Liabilities shall contain express and specific provisions to the effect that in
respect of any Assumed Liabilities:
(i) Buyer shall have the right to resist, contest, defend
against, litigate, compromise and/or otherwise dispose of any and all
Assumed Liabilities to such extent and in such manner as Buyer, in its
sole discretion, shall deem desirable, advisable and for its best
interests, and Buyer shall be deemed to have performed its obligations
under and pursuant to such instruments, papers and documents
notwithstanding such resistance, contest, defense against, litigation,
compromise or other disposition, so long as, and to the extent that,
neither Seller nor its affiliates shall be required to pay, satisfy,
discharge or perform any of the Assumed Liabilities; and
(ii) Nothing in any such instrument, paper or document, or in
this Agreement, contained is intended to be construed, or shall be
construed, as enlarging or extending in any manner, or to any extent, the
period of limitations prescribed by any statute of limitations applicable
to any of the Assumed Liabilities, or as enlarging or extending to any
extent, or in any manner whatsoever, the rights which any owner, holder or
obligee of any of the Assumed Liabilities has had, now has, or hereafter
can, shall or may have in respect thereto against Seller, or as rendering
valid, or enforceable, against Buyer any of the Assumed Liabilities which,
for any reason whatsoever, would not have been valid and enforceable
against Seller and/or its affiliates and that any of the Assumed
Liabilities which would have been valid or enforceable, against Seller
and/or its affiliates only partially, conditionally,
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contingently or to a limited extent, or in a limited manner, shall be
valid and enforceable against Buyer to no greater extent, and in no
different manner, than the Assumed Liabilities would have been valid and
enforceable against Seller and/or its affiliates.
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
Section 8.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned:
(a) at any time, by mutual written consent of Seller and
Buyer;
(b) at any time on or after October 1, 1996, by either Seller,
on the one hand, or Buyer, on the other hand, if the Closing shall not have
occurred on or prior to such date;
(c) by Buyer or Seller if any court of competent jurisdiction
or other governmental body shall have issued an order, decree or ruling or taken
any other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, and such order, decree, ruling or
other action shall have become final and non-appealable;
(d) by Buyer, (i) if there has been any violation or breach by
Seller in any material respect of any material representation warranty, covenant
or obligation contained in this Agreement and such violation or breach has not
been waived by Buyer or (ii) if Buyer shall not have received the shareholder
approval referred to in Section 6.1(e) hereof; or
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(e) by Seller, if there has been a violation or breach by
Buyer in any material respect of any material representation, warranty, covenant
or obligation contained in this Agreement and such violation or breach has not
been waived by Seller.
If Buyer or Seller shall terminate this Agreement pursuant to the provisions
hereof, such termination shall be effected by notice to the other parties
specifying the provision hereof pursuant to which such termination is made.
Section 8.2 Procedure and Effect of Termination. In the event of the
termination of this Agreement and the abandonment of the transactions
contemplated hereby pursuant to Section 8.1 hereof, written notice thereof shall
forthwith be given by the party so terminating to the other party hereto and
this Agreement shall terminate and the transactions contemplated hereby shall be
abandoned, without further action by Seller, on the one hand, or Buyer, on the
other hand. If this Agreement is terminated pursuant to Section 8.1 hereof:
(a) each party shall redeliver all documents, work papers and
other materials of the other parties relating to the transactions contemplated
hereby, whether so obtained before or after the execution hereof, to the party
furnishing the same, and all confidential information received by any party
hereto with respect to the other party shall be treated in accordance with the
Confidentiality Agreement;
(b) all filings, applications and other submissions made
pursuant hereto shall, at the option of the filing party, and to the extent
practicable, be withdrawn from the agency or other person to which made; and
(c) there shall be no liability or obligation hereunder on the
part of Seller or Buyer or any of
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their respective directors, officers, employees, affiliates, controlling
persons, agents or representatives, except that Seller or Buyer, as the case may
be, may have liability to the other party if the basis of termination is a
willful, material breach by Seller or Buyer, as the case may be, of one or more
of the provisions of this Agreement, and except that the obligations provided
for in Sections 8.2(a), 8.2(b) and 10.3 hereof shall survive any such
termination.
Section 8.3 Amendment, Modification and Waiver. This Agreement may
be amended, modified or supplemented at any time by written agreement of Seller
and Buyer. Any failure of Seller, on the one hand, or Buyer, on the other hand,
to comply with any term or provision of this Agreement may be waived, with
respect to Buyer, by Seller and, with respect to Seller, by Buyer, by an
instrument in writing signed by or on behalf of the appropriate party, but such
waiver or failure to insist upon strict compliance with such term or provision
shall not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure to comply.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 9.1 Survival of Representations, Warranties and Agreements.
The representations and warranties of Seller and Buyer, made in this Agreement
shall survive the Closing until March 31, 1998 (the "Indemnity Period"), but,
except as provided in Section 8.2(c) hereof, shall not survive any termination
of this Agreement. The Indemnity Period shall not apply to Buyer Damages (as
hereinafter defined) arising out of a breach of any covenant or obligation
contained in this Agreement or arising pursuant to Sections 9.2(a)(ii), (iii) or
(iv) hereof. The parties intend to shorten the statute of
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limitations and agree that no claims or causes of action may be brought against
Seller, Buyer or any of their respective directors, officers, employees,
affiliates, controlling persons, agents or representatives based upon, directly
or indirectly, any of the representations and warranties contained in this
Agreement after the Indemnity Period or, except as provided in Section 8.2(c)
hereof, any termination of this Agreement. This Section 9.1 shall not limit any
covenant or agreement of the parties which contemplates performance after the
Closing, including, without limitation, the covenants and agreements set forth
in Sections 5.8 and 10.2 hereof.
Section 9.2 Seller's Agreement to Indemnify.
(a) Subject to the terms and conditions set forth herein, from
and after the Closing, Seller shall indemnify and hold harmless Buyer and its
directors, officers, employees, affiliates, controlling persons, agents and
representatives and their successors and assigns (collectively, the "Buyer
Indemnitees") from and against all liability, demands, claims, actions or causes
of action, assessments, losses, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) (collectively "Buyer
Damages") asserted against or incurred by any Buyer Indemnitee as a result of,
relating to or arising out of the following:
(i) a breach of any representation, warranty, obligation or
covenant contained in this Agreement when made or at and as of the Closing as
though such representations, warranties, agreements and obligations were made at
and as of the Closing;
(ii) any of the Excluded Liabilities or any other liability or
obligation of Seller not expressly assumed by Buyer under this Agreement
regardless of whether or not such events constitute a breach of a representation
or warranty hereunder;
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(iii) any Environmental Condition resulting from Seller's or
its predecessors' ownership or operation of the Business or the real property
owned or leased by the Business arising under or related to compliance with any
Environmental Laws or Environmental Permits (as such laws and permit
requirements exist on the Closing Date), in each case existing prior to Closing,
whether or not known to Buyer or to Seller at the time of Closing and regardless
of whether or not such events constitute a breach of a representation or
warranty hereunder; and
(iv) any event, fact or condition relating to or arising from
the ownership, control, management or operation of the Business or the real
property owned or leased by the Business or the other assets of the Business or
otherwise arising or occurring prior to the Closing Date regardless of whether
Seller or Buyer had knowledge or was aware thereof, and regardless of whether or
not such events constitute a breach of a representation or warranty hereunder,
on or prior to the Closing Date, including without limitation those arising
under the Comprehensive Environmental Response, Cleanup and Liability Act, as
amended (as such laws exist as of the Closing Date);
provided, that in no case shall the provisions of this Section 9.2 relieve Buyer
of its obligations to assume, discharge and pay the Assumed Liabilities.
(b) Seller's obligations to indemnify the Buyer Indemnitees
pursuant to clause (i) of Section 9.2(a) hereof with respect to a breach of a
representation, warranty, obligation or covenant contained in this Agreement are
subject to the following limitations:
(i) No indemnification shall be made by Seller unless the
aggregate amount of Buyer Damages exceeds $250,000 and, in such event,
indemnification shall
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be made by Seller only to the extent Buyer Damages exceed $250,000, it being
understood that such $250,000 shall be a "deductible" for the Seller; provided,
that such "deductible" shall not apply to any indemnification pursuant to
Section 9.2(a)(ii) hereof or any breach of Section 5.19 hereof.
(ii) In no event shall Seller's aggregate obligation to
indemnify the Buyer Indemnitees exceed the adjusted Purchase Price (the
"Purchase Price Cap"); provided, that any indemnification pursuant to Section
9.2(a)(iii) or (iv) hereof may exceed the Purchase Price Cap but shall not
exceed $8,500,000 (the "Environmental Indemnification Cap"); provided, further
that (A) any such Section 9.2(a)(iii) or (iv) indemnification shall be counted
towards the Purchase Price Cap and (B) any indemnification for other items under
this Section 9.2 shall be counted towards the Environmental Indemnification Cap;
(iii) The amount of any Buyer Damages shall be reduced by any
amount received by a Buyer Indemnitee with respect thereto under any insurance
coverage or from any other party alleged to be responsible therefor. The Buyer
Indemnitees shall use reasonable efforts to collect any amounts available under
such insurance coverage and from such other party alleged to have
responsibility. If a Buyer Indemnitee receives an amount under insurance
coverage or from such other party with respect to Buyer Damages at any time
subsequent to any indemnification provided by the Seller pursuant to this
Section 9.2, then such Buyer Indemnitee shall promptly reimburse the Seller, for
any payment made or expense incurred by the Seller in connection with providing
such indemnification up to such amount received by the Buyer Indemnitee, but net
of any expenses incurred by such Buyer Indemnitee in collecting such amount;
(iv) Seller shall be obligated to indemnify the Buyer
Indemnitees only for those claims giving
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rise to Buyer Damages as to which the Buyer Indemnitees have given Seller
written notice thereof prior to the end of the Indemnity Period in the event
that the Indemnity Period applies to such Buyer Damages. Any written notice
delivered by a Buyer Indemnitee to Seller with respect to Buyer Damages shall
set forth with as much specificity as is reasonably practicable the basis of the
claim for Buyer Damages and, to the extent reasonably practicable, a reasonable
estimate of the amount thereof.
Section 9.3 Third Party Indemnification. The obligations of Seller
to indemnify the Buyer Indemnitees under Section 9.2 hereof with respect to
Buyer Damages resulting from the assertion of liability by third parties (a
"Claim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the
party required to provide indemnity hereunder written notice of any such Claim
promptly after learning of such Claim, and the indemnifying party may at its
option undertake the defense thereof, at its own expense, by representatives of
its own choosing. Failure to give prompt notice of a Claim hereunder shall not
affect the indemnifying party's obligations under this Section 9.3, except to
the extent the indemnifying party is materially prejudiced by such failure to
give prompt notice. If the indemnifying party, within 30 days after notice of
any such Claim, or such shorter period as is reasonably required, fails to
assume the defense of such Claim, the Buyer Indemnitee against whom such claim
has been made will (upon further notice to the indemnifying party) have the
right to undertake the defense, compromise or settlement of such claim on behalf
of and for the account and risk, and at the expense, of the indemnifying party,
subject to the right of the indemnifying party to assume the defense of such
Claim at any time prior to settlement, compromise or final determination
thereof.
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(b) Anything in this Section 9.3 to the contrary
notwithstanding, the indemnifying party shall not enter into any settlement or
compromise of any action, suit or proceeding or consent to the entry of any
judgment (i) which does not include as an unconditional term thereof the
delivery by the claimant or plaintiff to the Buyer Indemnitee of a written
release from all liability in respect of such action, suit or proceeding or (ii)
for other than monetary damages to be borne by the indemnifying party without
the prior written consent of the Buyer Indemnitee, which consent shall not be
unreasonably withheld.
ARTICLE X
MISCELLANEOUS
Section 10.1 Sales and Transfer Taxes. Buyer and Seller shall share
equally the payment of all sales, use, transfer and conveyance taxes (including
penalties, interest and additions) arising in connection with the sale and
transfer of the Assets to Buyer (collectively, the "Transfer Taxes") pursuant to
this Agreement, and Buyer and Seller shall cooperate in the preparation of all
necessary tax returns and other documentation with respect to any Transfer Tax;
provided, that Seller shall be solely responsible for any federal, state,
provincial, local or foreign income or gains tax assessed as the result of the
transactions contemplated hereby.
Section 10.2 Property Taxes. Liability for real, personal and
intangible property taxes imposed upon Buyer or Seller with respect to the
Assets for a tax year commencing prior to the Closing Date and concluding
subsequent to the Closing Date shall be apportioned between Buyer and Seller on
a per diem basis with respect to such tax year.
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Section 10.3 Fees and Expenses. Whether or not the transactions
contemplated herein are consummated pursuant hereto, except as otherwise
provided herein, each of Seller, on the one hand, and Buyer, on the other hand,
shall pay all fees and expenses incurred by, or on behalf of, such party in
connection with, or in anticipation of, this Agreement and the consummation of
the transactions contemplated hereby. Each of Seller, on the one hand, and
Buyer, on the other hand, shall indemnify and hold harmless the other party from
and against any and all claims or liabilities for financial advisory and
finders' fees incurred by reason of any action taken by such party or otherwise
arising out of the transactions contemplated by this Agreement by any person
claiming to have been engaged by such party.
Section 10.4 Further Assurances. From time to time after the Closing
Date, at the request of another party hereto and at the expense of the party so
requesting, each of the parties hereto shall execute and deliver to such
requesting party such documents and take such other action as such requesting
party may reasonably request in order to consummate more effectively the
transactions contemplated hereby.
Section 10.5 Notices. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and may be given by any of the following methods: (a)
personal delivery; (b) facsimile transmission; (c) registered or certified mail,
postage prepaid, return receipt requested; or (d) overnight delivery service.
Notices shall be sent to the appropriate party at its address or facsimile
number given below (or at such other address or facsimile number for such party
as shall be specified by notice given hereunder):
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If to the Buyer, to:
Golden West Refining Corporation Limited
00 Xxxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxx Xxxxxxxxx, 0000
Fax No. (00-0) 000 0000
Attention: Xxxx Xxxxx
with a copy to:
Xxxxxxxx & Xxxx
Financial Centre
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Fax No. (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to the Seller, to:
Handy & Xxxxxx
International Corporate Center at Rye
000 Xxxxxxxx Xxxxx Xxxxxx
Xxx, XX 00000
Fax No. (000) 000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate,
Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax No. (000) 000-0000
Attention: Xxxxxx X. Xxxxx
All such notices, requests, demands, waivers and communications shall be deemed
received upon (i) actual receipt thereof by the addressee, (ii) actual delivery
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thereof to the appropriate address or (iii) in the case of a facsimile
transmission, upon transmission thereof by the sender and issuance by the
transmitting machine of a confirmation slip that the number of pages
constituting the notice have been transmitted without error. In the case of
notices sent by facsimile transmission, the sender shall contemporaneously mail
a copy of the notice to the addressee at the address provided for above.
However, such mailing shall in no way alter the time at which the facsimile
notice is deemed received.
Section 10.6 Severability. Should any provision of this Agreement
for any reason be declared invalid or unenforceable, such decision shall not
affect the validity or enforceability of any of the other provisions of this
Agreement, which remaining provisions shall remain in full force and effect and
the application of such invalid or unenforceable provision to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall be valid and enforced to the fullest extent permitted by law.
Section 10.7 Binding Effect; Assignment. This Agreement and all of
the provisions hereof shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned, directly or indirectly, including, without limitation, by
operation of law, by any party hereto without the prior written consent of the
other party hereto, except that Buyer shall have the right to assign this
Agreement (and the rights, interests and obligations hereunder) to any
subsidiary or affiliate of Buyer without the prior written consent of Seller;
provided, that the Buyer shall continue to remain liable to Seller for any
amounts or obligation owing to Seller hereunder.
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Section 10.8 No Third Party Beneficiaries. This Agreement is solely
for the benefit of Seller and its respective successors and permitted assigns,
with respect to the obligations of Buyer under this Agreement, and for the
benefit of Buyer and its respective successors and permitted assigns, with
respect to the obligations of Seller, under this Agreement, and this Agreement
shall not be deemed to confer upon or give to any other third party any remedy,
claim liability, reimbursement, cause of action or other right.
Section 10.9 Interpretation.
(a) The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
(b) As used in this Agreement, the term "person" shall mean
and include an individual, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any department or
agency thereof.
(c) As used in this Agreement, the term "affiliate" shall have
the meaning set forth in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended.
Section 10.10 Jurisdiction and Consent to Service. Without limiting
the jurisdiction or venue of any other court, Seller and Buyer (a) agree that
any suit, action or proceeding arising out of or relating to this Agreement may
be brought solely in the state or federal courts of New York; (b) consents to
the exclusive jurisdiction of each such court in any suit, action or proceeding
relating to or arising out of this Agreement; (c) waives any objection which it
may have to the laying of
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venue in any such suit, action or proceeding in any such court; and (d) agrees
that service of any court paper may be made in such manner as may be provided
under applicable laws or court rules governing service of process.
Section 10.11 Entire Agreement. This Agreement, the Confidentiality
Agreement, the Disclosure Schedules, and the Exhibits and other documents
referred to herein or delivered pursuant hereto which form a part hereof
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties or any of them with respect to the subject
matter hereof, including, without limitation, the Letter Agreement, dated
February 16, 1996, between Seller and Buyer.
Section 10.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof) as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
Section 10.13 Specific Performance. The parties acknowledge and
agree that any breach of the terms of this Agreement would give rise to
irreparable harm for which money damages would not be an adequate remedy and
accordingly the parties agree that, in addition to any other remedies, each
shall be entitled to enforce the terms of this Agreement by a decree of specific
performance without the necessity of proving the inadequacy of money damages as
a remedy.
Section 10.14 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
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Section 10.15 Waivers. Any condition to a party's obligation
hereunder may only be waived in writing by such party. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
GOLDEN WEST REFINING
CORPORATION LIMITED
By:_____________________________________
Name:
Title:
HANDY & XXXXXX
By:_____________________________________
Name:
Title:
