FIRST AMENDED
ASSET PURCHASE AGREEMENT
Between
HUNTSMAN POLYMERS CORPORATION
and
HUNTSMAN PACKAGING CORPORATION
(Regarding Assets of the CT Film Division of Huntsman
Polymers Corporation)
Dated as of September 26, 1997
TABLE OF CONTENTS
Page
1. PURCHASE AND SALE OF ASSETS . . . . . . . . . . 1
1.01. Purchase and Sale . . . . . . . . . . . . 1
1.02. Payment of Purchase Price . . . . . . . . 2
1.03. Acquired Assets . . . . . . . . . . . . . 2
1.04. Excluded Assets . . . . . . . . . . . . . 5
1.05. Assumed Liabilities . . . . . . . . . . . 5
1.06. Excluded Liabilities . . . . . . . . . . 5
1.07. Title to Acquired Assets . . . . . . . . 7
1.08. Consents of Third Parties . . . . . . . . 7
2. THE CLOSING . . . . . . . . . . . . . . . . . . 7
2.01. Closing Date . . . . . . . . . . . . . . 7
2.02. Transactions to be Effected at the
Closing . . . . . . . . . . . . . . . . . 8
2.03. Other Action . . . . . . . . . . . . . . 8
2.04. No Additional Obligations . . . . . . . . 8
2.05. Loss, Destruction, Condemnation, or
Damage . . . . . . . . . . . . . . . . . 8
3. REPRESENTATIONS AND WARRANTIES OF SELLER . . . . 9
3.01. Organization . . . . . . . . . . . . . . 9
3.02. Authorization and Validity of Agreement . 10
3.03. No Violations; Consents and Approvals . . 10
3.04. Subsidiary Capitalization . . . . . . . . 10
3.05. SEC Reports and Financial Statements . . 11
3.06. Absence of Certain Changes . . . . . . . 11
3.07. No Undisclosed Liabilities . . . . . . . 12
3.08. Employee Benefit Plans and ERISA . . . . 12
3.09. Litigation and Compliance with Law . . . 14
3.10. Xxxxxx Intellectual Property . . . . . . 15
3.11. Seller Agreements . . . . . . . . . . . . 15
3.12. Taxes . . . . . . . . . . . . . . . . . . 16
3.13. Environmental Matters . . . . . . . . . . 17
3.14. No Default . . . . . . . . . . . . . . . 19
3.15. Brokers . . . . . . . . . . . . . . . . . 19
3.16. Property . . . . . . . . . . . . . . . . 19
3.17. Labor Matters . . . . . . . . . . . . . . 19
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER . . 20
4.01. Organization . . . . . . . . . . . . . . 20
4.02. Authorization and Validity of Agreement . 20
4.03. No Violations; Consents and Approvals . . 20
5. COVENANTS . . . . . . . . . . . . . . . . . . . 21
5.01. Plicon Collection. . . . . . . . . . . 21
5.02. Access to Information . . . . . . . . . . 21
5.03. Further Action; Reasonable Best Efforts . 22
5.04. Post-Closing Cooperation . . . . . . . . 22
5.05. Employee Benefits . . . . . . . . . . . . 23
5.06. Notification of Certain Matters . . . . . 26
5.07. Expenses . . . . . . . . . . . . . . . . 26
5.08. Waiver of Compliance with Bulk Sales
Laws . . . . . . . . . . . . . . . . . . 26
5.09. Transfer, Sales, and Use Taxes . . . . . 26
5.10. Purchase Price Allocation . . . . . . . . 26
5.11. WARN Compliance . . . . . . . . . . . . . 27
6. CONDITIONS . . . . . . . . . . . . . . . . . . . 27
6.01. Conditions to Each Party's Obligation . . 27
6.02. Conditions to Obligation of Purchaser . . 27
6.03. Conditions to Obligation of Seller . . . 29
7. TERMINATION OF AGREEMENT . . . . . . . . . . . . 29
7.01. Termination . . . . . . . . . . . . . . . 29
7.02. Effect of Termination . . . . . . . . . . 30
8. INDEMNIFICATION . . . . . . . . . . . . . . . . 30
8.01. Indemnification by Seller . . . . . . . . 30
8.02. Indemnification by Purchaser . . . . . . 30
8.03. Calculation of Losses . . . . . . . . . . 31
8.04. Termination of Indemnification . . . . . 31
8.05. Procedures . . . . . . . . . . . . . . . 31
9. GENERAL PROVISIONS . . . . . . . . . . . . . . . 33
9.01. Assignment . . . . . . . . . . . . . . . 33
9.02. No Third-Party Beneficiaries . . . . . . 33
9.03. Amendments and Waivers . . . . . . . . . 33
9.04. Notices . . . . . . . . . . . . . . . . . 33
9.05. Interpretation . . . . . . . . . . . . . 34
9.06. Survival of Agreements . . . . . . . . . 34
9.07. Counterparts . . . . . . . . . . . . . . 34
9.08. Entire Agreement . . . . . . . . . . . . 34
9.09. Severability . . . . . . . . . . . . . . 34
9.10. Governing Law; Waiver of Jury Trial;
Enforcement . . . . . . . . . . . . . . . 35
TABLE OF DEFINED TERMS
Term: Section:
Acquired Assets 1.03
Acquisition 1.01
Affiliate 9.05
Allocation 5.10
Assigned Contracts 1.03(k)
Assigned Intellectual Property 1.03(h)
Assigned Permits 1.03(j)
Assumed Liabilities 1.05
Audits 3.12(b)
Business Recitals
Business Executives 5.02(a)
Buyer Defined Benefit Plan 5.05(b)
Chippewa Facility 1.03(a)
Clearfield Facility 1.03(a)
Closing 2.01
Closing Date 2.01
Code 3.08(e)
Company Employees 5.05(a)
Company SEC Documents 3.05
Contracts 1.03(k)
Xxxxxx Facility 1.03(a)
Disclosure Schedule 3.
Effective Time 5.05(g)
England Shares 1.03(q)
England Subsidiary 1.03(q)
Environmental Claim 3.13(e)
Environmental Laws 3.13(e)
ERISA 3.08(a)
ERISA Affiliate 3.08(a)
ERISA Plans 3.08(a)
Exchange Act 3.05
Excluded Assets 1.04
Excluded Liabilities 1.06
Existing Credit Facilities 1.06(c)
Film Manufacturing Facilities 1.03(a)
GAAP 3.05
Governmental Entity 3.03
Xxxxxxxxxx Facility 1.03(a)
Hazardous Substance 3.13(e)
Huntsman Recitals
Intellectual Property 1.03(h)
Inventory 1.03(f)
Investments 1.03(l)
Knowledge of Seller 3.06
Liens 1.07
Losses 8.01
Material Adverse Effect 3.01
Material Seller Agreements 3.11
Merger Recitals
Merger Agreement Recitals
PBGC 3.08(b)
Permits 1.03(j)
Permitted Liens 1.07
Person 3.01
Personal Property 1.03(d)
Plans 3.08(a)
Purchase Price 1.01
Purchaser Recitals
Receivables 1.03(g)
Records 1.03(p)
Release 3.13(e)
Representatives 5.02(a)
Xxxxxx Intellectual Property 3.10
Xxxxxx Pension Plan 5.05(b)
Xxxxxx SERP 5.05(f)
Sales and Use Taxes 5.09
Sales Office Facilities 1.03(b)
SEC 3.05
Securities Act 3.05
Seller Recitals
Seller Agreements 3.03
Seller Defined Benefit Plan 5.05(b)
Subsidiary 3.01
Tax Return 3.12(j)
Taxes 3.12(j)
Technology 1.03(i)
Third Party Claim 8.05(a)
Transfer Taxes 5.09
Warehouse Facilities 1.03(c)
WARN 5.11
FIRST AMENDED
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDED ASSET PURCHASE AGREEMENT (this
"Agreement") is made and entered into as of the 26th day
of September, 1997, by and between HUNTSMAN POLYMERS
CORPORATION, formerly known as Xxxxxx Corporation, a
Delaware corporation ("Seller"), and HUNTSMAN PACKAGING
CORPORATION, a Utah corporation ("Purchaser").
RECITALS:
A. Pursuant to the provisions of a certain
Agreement and Plan of Merger (the "Merger Agreement")
dated as of June 9, 1997, by and among Seller, Huntsman
Centennial Corporation, a Utah corporation
("Centennial"), and Huntsman Corporation, a Utah
corporation ("Huntsman"), Centennial was merged with and
into Seller (the "Merger").
B. Seller and one or more of its Subsidiaries own
and operate a polymer film manufacturing business known
as the "CT Film Division" (the "Business").
C. Seller desires to sell to Purchaser, and
Purchaser desires to purchase from Seller, all or
substantially all of the assets of the Business, upon the
terms and subject to the conditions of this Agreement.
D. Seller and Purchaser have entered into an
Asset Purchase Agreement dated as of August 27, 1997
(the "Original Agreement"), pursuant to the terms,
conditions, and provisions of which (among other things)
Seller agreed to sell to Purchaser, and Purchaser agreed
to purchase from Seller, all or substantially all of the
assets of the Business.
E. Seller and Purchaser now desire to amend the
Original Agreement in its entirety and to agree in
writing as to certain related matters.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein contained, and for other
good and valuable consideration, receipt and sufficiency
of which are acknowledged, Seller and Purchaser hereby
amend the Original Agreement to read in its entirety, and
otherwise hereby agree, as follows:
1. PURCHASE AND SALE OF ASSETS
1.01. Purchase and Sale. On the terms and
subject to the conditions of this Agreement, at the
Closing (as defined in Section 2.01), Seller shall sell,
assign, transfer, convey, and deliver to Purchaser, and
Purchaser shall purchase from Seller, all the right,
title, and interest of Seller in, to, and under the
Acquired Assets (as defined in Section 1.03), for (a) an
aggregate purchase price of Seventy Million Dollars
($70,000,000) (the "Purchase Price"), payable as set
forth in Section 1.02, and (b) the assumption of the
Assumed Liabilities (as defined in Section 1.05). The
purchase and sale of the Acquired Assets and the
assumption of the Assumed Liabilities is referred to in
this Agreement as the "Acquisition."
1.02. Payment of Purchase Price. The Purchase
Price shall be paid to Seller in full at the Closing as
provided in Section 2.02(b)(i).
1.03. Acquired Assets. The term "Acquired
Assets" means all of the business, properties, assets,
good will, and rights of Seller and its Subsidiaries (as
defined in Section 3.01) of every kind, character, and
description, tangible or intangible, real, personal, or
mixed, whether accrued, contingent, or otherwise, that
are owned, leased, or licensed by Seller or any of its
Subsidiaries on the Closing Date (as defined in Section
2.01) and primarily used, primarily held for use, or
intended to be primarily used in the operation or conduct
of the Business, wherever located and whether or not
reflected in the books and records of Seller or any of
its Subsidiaries, other than the Excluded Assets (as
defined in Section 1.04), including:
(a) Film Manufacturing Facilities. The
entire right, title, and interest of Seller and any of
its Subsidiaries in and to all manufacturing, warehouse,
laboratory, and other facilities located in (i) Chippewa
Falls, Wisconsin (the "Chippewa Facility"), (ii)
Clearfield, Utah (the "Clearfield Facility"), (iii)
Dalton, Georgia (the "Xxxxxx Facility"), and (iv)
Harrington, Delaware (the "Harrington Facility"),
including Seller's interests in the parcels of real
property related thereto, together with and including the
entire right, title, and interest of Seller in and to all
buildings, structures, installations, fixtures, and other
improvements thereto or situated thereon and all other
rights, interests, and appurtenances of Seller and any of
its Subsidiaries pertaining thereto. The term "Film
Manufacturing Facilities" means collectively the Chippewa
Facility, the Clearfield Facility, the Xxxxxx Facility,
and the Xxxxxxxxxx Facility.
(b) Sales Office Facilities. The entire
right, title, and interest of Seller and any of its
Subsidiaries as tenant in and to (i) sales office spaces
and appurtenant rights located at the addresses specified
in Schedule 1.03(b), and (ii) sales office spaces and
appurtenant rights, to the extent primarily used,
primarily held for use, or intended to be primarily used
in the operation or conduct of the Business, and located
at 0000 Xxxxxxxxx Xx., Xxxxxx 000 xxx 000, Xxxxxxxxxx, XX
00000. "Sales Office Facilities" means collectively the
sales office spaces and appurtenant rights described in
this Section 1.03(b)(i) and (ii).
(c) Warehouse Facilities. The entire right,
title, and interest of Seller and any of its Subsidiaries
as tenant in and to warehouse spaces and appurtenant
rights, located at the addresses specified in Schedule
1.03(c). "Warehouse Facilities" means collectively the
warehouse spaces and appurtenant rights described in this
Section 1.03(c).
(d) Personal Property. All machinery,
equipment, computer hardware, improvements, tools,
furniture, furnishings, vehicles, and other tangible
personal property of Seller or any of its Subsidiaries
that on the Closing Date are located in or upon any of
the Manufacturing Facilities, the Office Facilities, or
the Warehouse Facilities, and all other machinery,
equipment, computer hardware, improvements, tools,
furniture, furnishings, vehicles, and other tangible
personal property of Seller and any of its Subsidiaries
on the Closing Date, wherever located, that are primarily
used, primarily held for use, or intended to be primarily
used in the operation or conduct of the Business
(collectively, the "Personal Property").
(e) This section is reserved.
(f) Inventory. All raw materials, work-in-
process, finished goods, packaging, supplies, parts,
spare parts, and other inventories of Seller or any of
its Subsidiaries that on the Closing Date are located at
any of the Manufacturing Facilities, the Office
Facilities, or the Warehouse Facilities, and all other
raw materials, work-in-process, finished goods,
packaging, supplies, parts, spare parts, and other
inventories of Seller and any of its Subsidiaries
(including in transit, on consignment, or in the
possession of any third party) on the Closing Date that
are primarily used, primarily held for use, or intended
to be primarily used in the operation or conduct of the
Business (collectively, the "Inventory").
(g) Receivables. All accounts receivable of
Seller and any of its Subsidiaries on the Closing Date
arising out of the operation or conduct of the Business
(the "Receivables").
(h) Intellectual Property. All domestic and
foreign patents (including all reissues, divisions,
continuations, and extensions thereof), patent
applications, patent rights, trademarks, trademark
registrations, trademark applications, servicemarks,
trade names, business names, brand names, copyrights,
copyright registrations, designs, design registrations,
and all rights to any of the foregoing ("Intellectual
Property") of Seller and any of its Subsidiaries that are
primarily used, primarily held for use, or intended to be
primarily used in the operation or conduct of the
Business (such Intellectual Property being the "Assigned
Intellectual Property").
(i) Technology. All domestic and foreign
trade secrets, confidential information, inventions,
engineering and production designs, drawings, technology,
know-how, formulas, processes, procedures, research,
records of inventions, test information, ideas, and other
similar intangible assets of Seller or any of its
Subsidiaries that are primarily used, primarily held for
use, or intended to be primarily used in the operation or
conduct of the Business (the "Technology").
(j) Permits. All certificates, licenses,
authorizations, permits, and approvals ("Permits") issued
or granted to Seller or any of its Subsidiaries by
Governmental Entities that are primarily used, primarily
held for use, or intended to be primarily used in the
operation or conduct of the Business (the "Assigned
Permits").
(k) Contracts. All contracts, leases,
licenses, indentures, agreements, commitments, and all
other legally binding arrangements, whether oral or
written (including purchase orders and sales orders)
("Contracts"), to which Seller or any of its Subsidiaries
is a party or by which Seller or any of its Subsidiaries
is bound that are primarily used, primarily held for use,
or intended to be primarily used in, or that arise
primarily out of, the operation or conduct of the
Business (the "Assigned Contracts").
(l) Investments. All partnership interests
or any other equity interest of Seller or any of its
Subsidiaries in any corporation, company, limited
liability company, partnership, joint venture, trust, or
other business association ("Investments") that are
primarily used, primarily held for use, or intended to be
primarily used in, or that arise primarily out of, the
operation or conduct of the Business.
(m) Products Sold. All rights of Seller or
any of its Subsidiaries in and to products sold
(including products returned after the Closing and rights
of rescission, replevin, and reclamation) in the
operation or conduct of the Business.
(n) Prepaid Items. All credits, prepaid
expenses, deferred charges, advance payments, security
deposits, and prepaid items of Seller and any of its
Subsidiaries that are primarily used, primarily held for
use, or intended to be primarily used in, or that arise
primarily out of, the operation or conduct of the
Business.
(o) Claims. All rights, claims, and credits
of Seller and any of its Subsidiaries to the extent
relating to any other Acquired Asset or any Assumed
Liability, including any such items arising under
insurance policies and all guarantees, warranties,
indemnities, and similar rights in favor of Seller or any
of its Subsidiaries in respect of any other Acquired
Asset or any Assumed Liability.
(p) Records. All books of account, ledgers,
general, financial, accounting, and personnel records,
files, invoices, customers' and suppliers' lists, other
distribution lists, billing records, sales and
promotional literature, manuals, and customer and
supplier correspondence (in all cases, in any form or
medium) of Seller and any of its Subsidiaries that are
primarily used, primarily held for use, or intended to be
primarily used in, or that arise primarily out of, the
conduct or operation of the Business (the "Records").
(q) England Shares. All right, title, and
interest of Seller and any of its subsidiaries in and to
shares of stock (of any class, series, type, or
designation whatsoever, including any director's
qualifying shares) of, and any other interests whatsoever
in, Xxxxxx Corporation Limited, a corporation organized
under the laws of England (such corporation the "England
Subsidiary" and such shares and other interests the
"England Shares").
(r) Goodwill. All goodwill of Seller and any
of its Subsidiaries generated by or primarily associated
with the Business.
(s) Other Assets. Other assets of Seller and
any of its Subsidiaries specified in Schedule 1.03(s).
1.04. Excluded Assets. The term "Excluded
Assets" means:
(a) Executive Office Assets. All tangible
personal property of Seller and any of its Subsidiaries
(other than the England Subsidiary) that on the Closing
Date is located at Seller's executive offices at 0000 XXX
Xxxxxxx, Xxxxxx, Xxxxx, other than (i) the Records, (ii)
motor vehicles, and (iii) items specified in Schedule
1.04(a).
(b) Pension Assets. All assets of the Xxxxxx
Pension Plan (as defined in Section 5.05(b)).
(c) General Ledger. All financial and tax
records relating to the Business that form part of
Seller's general ledger.
(d) Other Businesses. All assets of Seller
and its Subsidiaries (other than the England Subsidiary)
that are primarily used, primarily held for use, or
intended to be primarily used by Seller or any of its
Subsidiaries in the operation or conduct of any business
other than the Business.
(e) Other Excluded Assets. Other assets of
Seller or any of its Subsidiaries specified in Schedule
1.04(e).
(f) Plicon Rights. All Receivables, Assigned
Contracts, Inventory, and Technology arising from or
relating to Plicon Corporation, RP Packaging, Inc.,
and/or its or their Subsidiaries or Affiliates.
(g) Cash. All cash and cash equivalents of
Seller and any of its Subsidiaries (other than the
England Subsidiary).
(h) Goodwill. All goodwill that is
associated with the "XXXXXX" xxxx or any xxxx containing
"XXX" as a prefix, suffix, or otherwise.
1.05. Assumed Liabilities. Upon the terms and
subject to the conditions of this Agreement, Purchaser
shall assume, effective as of the Closing Date, and from
and after the Closing Date Purchaser shall pay, perform,
and discharge when due, all Assumed Liabilities. The
term "Assumed Liabilities" means all liabilities,
obligations, and commitments of Seller or any of its
Subsidiaries to the extent relating to or arising out of
the Business or any Acquired Asset, whether express or
implied, liquidated, absolute, accrued, contingent, or
otherwise, and that are based upon, arise out of, or
result from any fact, circumstance, condition, act, or
omission existing on or occurring on or prior to the
Closing Date, other than any Excluded Liabilities (as
defined in Section 1.06).
1.06. Excluded Liabilities. Notwithstanding
Section 1.05, or any other provision of this Agreement,
and regardless of any disclosure to Purchaser, Purchaser
shall not assume any Excluded Liability, each of which
shall be retained and paid, performed, and discharged
when due by Seller and its Subsidiaries. The term
"Excluded Liability" means:
(a) Other Business. Any liability,
obligation, or commitment of Seller or any of its
Subsidiaries, whether express or implied, liquidated,
absolute, accrued, contingent, or otherwise, or known or
unknown, to the extent relating to or arising out of the
operation or conduct by Seller or any of its
Subsidiaries, of any business other than the Business.
(b) Excluded Assets. Any liability,
obligation, or commitment of Seller or any of its
Subsidiaries to the extent relating to or arising out of
any Excluded Asset, or to the extent relating to or
arising out of the ownership by Seller or any of its
Subsidiaries of the Excluded Assets or to the extent
associated with the realization of the benefits of any
Excluded Asset.
(c) Money Borrowed. Any liabilities,
obligations, or commitments of Seller or any of its
Subsidiaries for money borrowed, whether or not arising
from or relating to the operation or conduct of the
Business or any of the Acquired Assets, including any
liabilities, obligations, or commitments of Seller or any
of its Subsidiaries arising from or relating to (i) the
Credit Agreement, dated May 8, 1997, by and between
Seller and the Bank of Nova Scotia and certain other
lenders, (ii) the Participation and Credit Agreement,
dated May 8, 1997, by and between Seller and the Bank of
Nova Scotia and certain other lenders, (iii) Seller's
$175 million Senior Notes, (iv) any indebtedness for
money borrowed by Seller from Huntsman, or (v) any loan
or lease documents or other agreements related to the
agreements referred to in the foregoing clauses (i),
(ii), (iii), or (iv) (the agreements and documents
referred to in clauses (i), (ii), (iii), (iv), and (v)
collectively, the "Existing Credit Facilities").
(d) Pension Liabilities. All obligations
and liabilities arising from or relating to the Xxxxxx
Pension Plan.
(e) This Section is reserved.
(f) Terminated Employees. Any liability,
obligation, or commitment of Seller or any of its
Subsidiaries that relates to, or that arises out of, the
employment or the termination of the employment with
Seller of any employee or former employee of the Business
identified in Schedule 1.06(f) (including as a result of
the transactions contemplated by this Agreement).
(g) Other Excluded Liabilities. All other
liabilities, obligations, and commitments of Seller or
any of its Subsidiaries specified in Schedule 1.06(g).
(h) Plicon Obligations. Any liability,
obligation, or commitment of Seller or any of its
Subsidiaries to the extent that it relates to or arises
out of any Receivable, Assigned Contract, or Technology
arising from or relating to Plicon Corporation, RP
Packaging, Inc. and/or its or their Subsidiaries or
Affiliates.
1.07. Title to Acquired Assets. Purchaser
shall acquire the Acquired Assets free and clear of all
liabilities, obligations, and commitments of Seller and
any of its Subsidiaries other than the Assumed
Liabilities, and free and clear of all liens, charges,
security interests, options, claims, or encumbrances of
any nature whatsoever (collectively "Liens"), other than
Permitted Liens. "Permitted Liens" means (a) liens that
primarily relate to or arise from the operation or
conduct of the Business (other than Liens that secure any
Excluded Liabilities), (b) Liens specified in Schedule
1.07, (c) in the case of personal property, imperfections
of title or encumbrances, if any, that could not
reasonably be expected to have a Material Adverse Effect
(as defined in Section 3.01) on the Business, taken as a
whole, and (d) in the case of real property: (i)
easements, covenants, rights-of-way, and other similar
restrictions of record, (ii) any conditions that may be
shown by a current, accurate survey or physical
inspection of the involved real property prior to the
Closing Date, and (iii) unrecorded easements, covenants,
rights-of-way, and other similar restrictions that could
not reasonably be expected to have a Material Adverse
Effect on the Business, taken as a whole.
1.08. Consents of Third Parties.
Notwithstanding anything in this Agreement to the
contrary, this Agreement shall not constitute an
agreement to assign any asset or any claim or right or
any benefit arising under or resulting from such asset if
an attempted assignment thereof, without the consent of a
third party, would constitute a breach or other
contravention of the rights of such third party, would be
ineffective with respect to any party to an agreement
concerning such asset, or would in any way adversely
affect the rights, upon transfer, of Purchaser under such
asset. If any transfer or assignment by Seller to, or
any assumption by Purchaser of, any interest in, or
liability, obligation, or commitment under, any asset
requires the consent of a third party, then such
assignment or assumption shall be made subject to such
consent being obtained. To the extent any Assigned
Contract may not be assigned to Purchaser by reason of
the absence of any such consent, Purchaser shall not be
required to assume any Assumed Liabilities arising under
such Assigned Contract.
If any such consent is not obtained prior to the
Closing, Seller and Purchaser shall cooperate (at their
own expense) in any lawful and reasonable arrangement
reasonably proposed by Purchaser under which Purchaser
shall obtain the economic claims, rights, and benefits
under the asset, claim, or right with respect to which
the consent has not been obtained in accordance with this
Agreement. Such reasonable arrangement may include (i)
the subcontracting, sublicensing, or subleasing to
Purchaser of any and all rights of Seller against the
other party to such third-party agreement arising out of
a breach or cancellation thereof by the other party, and
(ii) the enforcement by Seller of such rights. To the
extent, and only to the extent, Purchaser is able to
receive the economic claims, rights, and benefits under
such asset, Purchaser shall be responsible for the
Assumed Liabilities, if any, arising under such asset.
2. THE CLOSING
2.01. Closing Date. The closing of the
Acquisition (the "Closing") shall take place at the
offices of Purchaser at 000 Xxxxxxxx Xxx, Xxxx Xxxx Xxxx,
Xxxx, beginning at 10:00 a.m. on September 30, 1997, or,
if on such day any condition set forth in Section 6 has
not been satisfied (or, to the extent permitted, waived
by the party or parties entitled to the benefit thereof),
then as soon as practicable after all the conditions set
forth in Section 6 have been satisfied (or, to the extent
permitted, waived by the party or parties entitled to the
benefits thereof), or at such other place, time, and date
as may be agreed between Seller and Purchaser. The
"Closing Date" means 11:59 p.m. (Eastern Time) on the
date on which the Closing occurs.
2.02. Transactions to be Effected at the
Closing. At the Closing:
(a) Seller Obligations. Seller shall deliver
to Purchaser (i) such appropriately executed deeds (in
recordable form), bills of sale, assignments, and other
instruments of transfer relating to the Acquired Assets
in form and substance reasonably satisfactory to
Purchaser and its legal counsel, (ii) a duly executed
certification of non-foreign status in the form
prescribed by Treasury Regulation SECTION 1.1445-2(b)(2)(iii),
and (iii) such other documents as Purchaser or its legal
counsel may reasonably request to demonstrate
satisfaction of the conditions and compliance with the
covenants set forth in this Agreement.
(b) Purchaser Obligations. Purchaser shall
deliver to Seller (i) payment, by wire transfer to a bank
account designated in writing by Seller (such designation
to be made at least two business days prior to the
Closing Date), in immediately available funds in an
amount equal to the Purchase Price, (ii) such
appropriately executed assumption agreements and other
instruments of assumption providing for the assumption of
the Assumed Liabilities in form and substance reasonably
satisfactory to Seller and it legal counsel, and (iii)
such other documents as Seller or its legal counsel may
reasonably request to demonstrate satisfaction of the
conditions and compliance with the covenants set forth in
this Agreement.
2.03. Other Action. At and after the Closing,
at the request of Purchaser, Seller shall deliver such
further instruments of transfer and take all commercially
reasonable action as may be necessary or appropriate (a)
to vest in Purchaser all of Seller's right, title, and
interest in and to the Acquired Assets, (b) to transfer
to Purchaser (to the extent transferrable) all licenses,
agreements, and permits necessary for the operation of
the Business, and (c) to aid and assist Purchaser in
collecting and reducing to possession any or all of the
Acquired Assets.
2.04. No Additional Obligations. No instrument
specified in Sections 2.02 or 2.03 shall create or be
deemed to create any liability or obligation to Purchaser
or Seller greater than those created by this Agreement.
2.05. Loss, Destruction, Condemnation, or
Damage. If between the date of this Agreement and the
Closing Date, any of the Acquired Assets are lost,
destroyed, or condemned, or suffer any material damage,
and are not repaired or replaced prior to Closing, then
Seller shall, on the Closing Date in connection with the
Closing, assign to Purchaser all insurance and/or
condemnation proceeds payable to Seller on account of
such loss, destruction, condemnation, or damage, pursuant
to an assignment in form and substance satisfactory to
Purchaser and its legal counsel.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
Except as specifically set forth in Schedules 3.01
through 3.17 (collectively, the "Disclosure Schedule")
(with a disclosure with respect to a Section of this
Agreement to require a specific reference in the
Disclosure Schedule to the Section of this Agreement to
which each such disclosure applies, and no disclosure to
be deemed to apply with respect to any Section to which
it is not expressly stated to apply), Seller hereby
represents and warrants, as of the date of this Agreement
(subject to changes effected by the Merger) and, solely
with respect to matters contained in Sections 3.01, 3.02,
3.03, 3.04, 3.07, 3.08, 3.09, and 3.12 as of the Closing
Date, to Purchaser as follows:
3.01. Organization. Seller and each of its
Subsidiaries is a corporation or other entity duly
organized, validly existing, and in good standing under
the laws of the jurisdiction of its incorporation or
organization (or the equivalent thereof in the case of
foreign Subsidiaries), has all requisite corporate power
and authority and all necessary governmental approvals to
own, lease, and operate its properties and to carry on
its business (including the Business) as it is now being
conducted, and is qualified or licensed to do business as
a foreign corporation and is in good standing in each
jurisdiction in which the nature of the business
(including the Business) conducted by it makes such
qualification or licensing necessary, except where the
failure to be so organized, existing, and in good
standing or to have such power, authority, or
governmental approvals, or to be so qualified or licensed
would not have a Material Adverse Effect (as defined
below) on Seller, or its Subsidiaries taken as a whole.
Seller has previously delivered to Purchaser a complete
and correct copy of each of its Restated Certificate of
Incorporation, as amended, and its Amended and Restated
Bylaws, as currently in effect, and complete and correct
copies of the certificates of incorporation and bylaws,
as currently in effect, or similar organizational
documents of all of Seller's Subsidiaries. Schedule 3.01
of the Disclosure Schedule sets forth a complete list of
Seller's Subsidiaries. For purposes of this Agreement:
(i) Any reference to any event, change, or effect having
a "Material Adverse Effect" on or with respect to any
entity (or group of entities taken as a whole) means such
event, change, or effect, individually or in the
aggregate with such other events, changes, or effects,
which is materially adverse to the financial condition,
businesses, results of operations, assets, liabilities,
or properties of such entity (or, if used with respect
thereto, of such group of entities taken as a whole);
(ii) "Subsidiary" means with respect to any Person, any
corporation or other entity of which more than 50% of the
securities or other interests having by their terms
ordinary voting power to elect a majority of the Board of
Directors or others performing similar functions with
respect to such entity is directly or indirectly owned by
such Person; and (iii) "Person" shall mean an individual,
partnership, joint venture, limited liability company,
trust, corporation, unincorporated entity, or
Governmental Entity (as defined in Section 3.03). The
only Person of which Seller beneficially owns 50% of the
securities or other equity interests is Orrex Plastics
Company LLC ("Orrex"). Orrex does not own, lease,
possess, or have any interest in any of the Acquired
Assets. Schedule 3.01 sets forth a list of all Orrex
charter or governance agreements and related documents.
3.02. Authorization and Validity of Agreement.
Seller has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and
delivery by Seller of this Agreement and the consummation
of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Seller and no
other corporate proceedings on the part of Seller are
necessary to authorize the execution and delivery of this
Agreement by Seller and the consummation of the
transactions contemplated hereby. This Agreement has
been duly executed and delivered by Seller and, assuming
due authorization, execution, and delivery of this
Agreement by Purchaser, this Agreement is a valid and
binding obligation of Seller enforceable against Seller
in accordance with its terms, except that such
enforcement may be subject to or limited by (i)
bankruptcy, insolvency, or other similar laws, now or
hereafter in effect, affecting creditors' rights
generally, and (ii) the effect of general principles of
equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
3.03. No Violations; Consents and Approvals.
Except as set forth in Schedule 3.03, neither the
execution and delivery of this Agreement by Seller nor
the consummation by Seller of the transactions
contemplated hereby will (i) conflict with or violate any
provision of the Restated Certificate of Incorporation or
Amended and Restated Bylaws of Seller, or the
certificates of incorporation or bylaws or similar
organizational documents of any of Seller's Subsidiaries,
(ii) require any filing with, or permit, authorization,
consent, or approval of, any court, arbitral tribunal,
administrative agency, or commission or other
governmental or other regulatory authority, agency, or
official (a "Governmental Entity"), (iii) assuming the
accuracy of the representations and warranties of, and
performance of the covenants by Purchaser as set forth
herein, result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a
default (or give rise to any right of termination,
amendment, cancellation, or acceleration), or require any
consent under, any of the terms, conditions, or
provisions of any note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness, lease,
license, contract, agreement, or other instrument or
obligation to which Seller or any of its Subsidiaries is
a party or by which any of them or any of their assets
may be bound ("Seller Agreements") or result in the
imposition or creation of any Lien on the assets of
Seller or any of its Subsidiaries or (iv) violate any
order, writ, injunction, decree, statute, rule, or
regulation applicable to Seller or any of its
Subsidiaries or any of their properties or assets; except
in the case of clauses (ii), (iii), or (iv), (A) where
the failure to obtain such permits, authorizations,
consents, or approvals or to make such filings would not
have a Material Adverse Effect on Seller and its
Subsidiaries, taken as a whole, or (B) for such
violations, breaches, or defaults which would not have a
Material Adverse Effect on Seller and its Subsidiaries,
taken as a whole.
3.04. Subsidiary Capitalization. Except as set
forth in Schedule 3.04 all of the outstanding shares of
capital stock of the England Corporation are beneficially
owned by the Company, directly or indirectly, except for
any directors' qualifying shares, and all such shares
have been validly issued and are fully paid and
nonassessable and are owned by either the Company or one
of its Subsidiaries free and clear of all Liens. Except
as set forth in Schedule 3.04, there are no voting trusts
or other agreements or understandings to which the
Company or any of its Subsidiaries is a party with
respect to the voting trusts or other agreements or
understandings to which the Company or any of its
Subsidiaries is a party with respect to the voting of the
capital stock of the England Company.
3.05. SEC Reports and Financial Statements.
Seller has filed with the Securities and Exchange
Commission (the "SEC"), and has heretofore made available
to Purchaser (directly or indirectly) true and complete
copies of, all forms and documents required to be filed
by Seller since January 1, 1994, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or
the Securities Act of 1933, as amended (the "Securities
Act") (as such documents have been amended since the time
of their filing, collectively, the "Company SEC
Documents"). As of their respective dates (or, if
amended, as of the date of the last such amendment), the
Company SEC Documents, including any financial statements
or schedules included therein (i) did not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading
and (ii) complied in all material respects with the
applicable requirements of the Exchange Act and the
Securities Act, as the case may be, and the applicable
rules and regulations of the SEC thereunder. The
consolidated financial statements included in the Company
SEC Documents (i) have been prepared from, and are in
accordance with, the books and records of Seller and its
consolidated Subsidiaries, (ii) have been prepared in
accordance with United States generally accepted
accounting principles ("GAAP") applied on a consistent
basis during the periods involved (except as otherwise
noted therein and except that the quarterly financial
statements are subject to year end adjustments and do not
contain all footnote disclosures required by GAAP), (iii)
comply in all material respects with applicable
accounting requirements and with the published rules and
regulations of the SEC with respect thereto, and (iv)
fairly present in all material respects the consolidated
financial position and the consolidated results of
operations and cash flows of Seller and its consolidated
Subsidiaries as at the dates thereof or for the periods
presented therein. No Subsidiary of Seller is required
to file any reports, forms, or other documents with the
SEC.
3.06. Absence of Certain Changes. Except as
disclosed in the Company SEC Documents filed prior to the
date of this Agreement or as disclosed in Schedule 3.06,
since December 31, 1996, Seller and its Subsidiaries have
conducted their respective businesses and operations
(including the Business) only in the ordinary course and
consistent with past practice, and there have not
occurred (i) any events or changes (including the
incurrence of any liabilities of any nature, whether or
not accrued, contingent, or otherwise) having or which
would have a Material Adverse Effect on Seller and its
Subsidiaries, taken as a whole; (ii) except for the
payment of regular quarterly cash dividends consistent
with past practice, any declaration, setting aside, or
payment of any dividend or other distribution (whether in
cash, stock, or property) with respect to the equity
interests of Seller or any of its Subsidiaries; or (iii)
any change by Seller or any of its Subsidiaries in
accounting principles or methods, except insofar as may
be required by a change in GAAP. Except as disclosed in
the Company SEC Documents filed prior to the date of this
Agreement or in Schedule 3.06, since December 31, 1996,
neither Seller nor any of its Subsidiaries has taken any
of the actions prohibited by Section 5.1 of the Merger
Agreement. For purposes of this Agreement, "knowledge of
the Seller" shall mean the actual knowledge of the
individuals specified in Schedule 3.06.
3.07. No Undisclosed Liabilities. Except as
disclosed in the Company SEC Documents filed prior to the
date of this Agreement or in Schedule 3.07 and except for
liabilities and obligations incurred in the ordinary
course of business and consistent with past practice
since December 31, 1996, neither Seller nor any of its
Subsidiaries have incurred any liabilities or obligations
of any nature, whether or not accrued, contingent, or
otherwise, that have, or would have, a Material Adverse
Effect on Seller and its Subsidiaries, taken as a whole,
or would be required to be reflected or reserved against
in the consolidated financial statements of Seller and
its Subsidiaries (including notes thereto) prepared in
accordance with GAAP.
3.08. Employee Benefit Plans and ERISA.
(a) ERISA and Plans. Schedule 3.08 contains
a true and complete list of each bonus, deferred
compensation, incentive compensation, stock purchase,
stock option, severance or termination pay,
hospitalization, or other medical, life, or other
insurance, supplemental unemployment benefits, profit-
sharing, pension, or retirement plan, program, or
agreement and each other employee benefit plan within the
meaning of Section 3(3) of ERISA, sponsored, maintained,
or contributed to by Seller or by 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 the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), for the benefit of any employee or former
employee of Seller or any ERISA Affiliate (the "Plans").
Schedule 3.08 identifies each of the Plans that is an
"employee benefit plan," as defined in section 3(3) of
ERISA (the "ERISA Plans").
(b) Plan Documents. With respect to each
Plan, Seller has heretofore delivered or made available
to Purchaser, true and complete copies of each of the
following documents:
(i) the Plan;
(ii) the most recent annual report
and actuarial report, if required under ERISA;
(iii) the most recent Summary Plan
Description (as defined in ERISA) required under
ERISA with respect thereto;
(iv) if the Plan is funded through a
trust or any third party funding vehicle, the trust
or other funding agreement and the latest financial
statements thereof; and
(v) the most recent determination letter
received from the Internal Revenue Service with
respect to each Plan intended to qualify under
section 401(a) of the Code.
(c) No Liabilities. No liability under Title
IV of ERISA has been incurred by Seller or any ERISA
Affiliate that has not been satisfied or otherwise
discharged in full, and no condition exists that presents
a material risk to Seller or any ERISA Affiliate of
incurring a liability under such Title, other than
liability for contributions due in the ordinary course
and premiums due the Pension Benefit Guaranty Corporation
("PBGC") (which contributions and premiums have bene paid
when due).
(d) No Multiemployer Plans. No ERISA Plan is
a "multiemployer pension plan," as defined in section
3(37) of ERISA, nor is any ERISA Plan a plan described in
section 4063(a) of ERISA.
(e) Qualifications. No ERISA Plan or any
trust established thereunder has incurred any
"accumulated funding deficiency" (as defined in section
302 of ERISA and section 412 of the Code), whether or not
waived, as of the last day of the most recent fiscal year
of each ERISA Plan ended prior to the Closing Date. No
Lien imposed under the Code or ERISA exists or is likely
to be imposed on account of any ERISA Plan. The form of
each ERISA Plan intended to be "qualified" within the
meaning of section 401(a) of the Code has been determined
by the Internal Revenue Service to be so qualified (or
timely application has been made therefor); no event has
occurred since the date of such determination that would
adversely affect such qualification for which the cost of
correction would have a Material Adverse Effect on Seller
and its Subsidiaries taken as a whole; and each trust
maintained thereunder has been determined by the Internal
Revenue Service to be exempt from taxation under section
501(a) of the Internal Revenue Code of 1986, as amended
(the "Code"). Each Plan has been operated and
administered in accordance with its terms and applicable
law, including but not limited to ERISA and the Code,
except for such non-compliance that would not have a
Material Adverse Effect on Seller and its Subsidiaries
taken as a whole.
(f) No Claims. There are no pending,
threatened, or anticipated claims (other than routine
claims for benefits) by, on behalf of, or against, any of
the Plans or any trusts related thereto that if
determined adversely to Seller and its Subsidiaries would
have a Material Adverse Effect on Seller and its
Subsidiaries taken as a whole.
(g) No Proceedings. The PBGC has not
instituted proceedings to terminate any of the ERISA
Plans and no condition exists that presents a material
risk that such proceedings will be instituted.
(h) Deficiency. As of December 31, 1996, the
present value of all actuarial accrued benefit
liabilities under the Seller's defined benefit plans
subject to Title IV of ERISA, as determined by the
actuary of such plans using the actuarial assumptions and
methods described in the actuarial valuation as of
January 1, 1996, did not exceed the market value of the
assets of such plans by more than $1,500,000.
(i) Prohibited Transactions. Neither Seller,
any ERISA Affiliate, any of the ERISA Plans, any trust
created thereunder, nor any trustee or administrator
thereof has engaged in a transaction or has taken or
failed to take any action in connection with which
Seller, any ERISA Affiliate, any of the ERISA Plans, any
such trust, any trustee or administrator thereof, or any
party dealing with the ERISA Plans or any such trust
could be subject to either a civil penalty assessed
pursuant to section 409 or 502(i) of ERISA or a tax
imposed pursuant to section 4975, 4976, or 4980B of the
Code that would have a Material Adverse Effect on Seller
and its Subsidiaries taken as a whole.
(j) Taxes. Except as disclosed in Schedule
3.08, no amounts payable under the Plans or any other
agreement or arrangement to which Seller is a party will,
as a result of the Merger, fail to be deductible for
federal income tax purposes by virtue of section 280G of
the Code.
(k) Benefits. Except as disclosed in
Schedule 3.08, no ERISA Plan provides benefits, including
without limitation death or medical benefits (whether or
not insured), with respect to current or former employees
after retirement or other termination of employment
(other than (i) coverage mandated by applicable law, (ii)
disability, death, or retirement benefits under any
"employee pension plan," as that term is defined in
section 3(2) of ERISA, (iii) deferred compensation
benefits or severance benefits accrued as liabilities on
the books of Seller or the ERISA Affiliates, (iv)
severance pay, disability benefits, and benefit claims
under ERISA Plans incurred on or prior to a termination
of employment but not reported or paid until after such
termination, or (v) benefits, the full cost of which is
borne by the current or former employee (or his
beneficiary)).
3.09. Litigation and Compliance with Law.
(a) No Litigation. Except as disclosed in
the Company SEC Documents filed prior to the date of this
Agreement or in Schedule 3.09, there is no suit, claim,
action, proceeding, or investigation pending or, to the
knowledge of Seller, threatened, against or affecting
Seller, or any of its Subsidiaries or any of their
respective properties which, if determined adversely to
Seller or such Subsidiaries, would have a Material
Adverse Effect on Seller and its Subsidiaries taken as a
whole or would prevent or delay Seller from consummating
the Merger or the transactions contemplated by this
Agreement.
(b) Compliance. Except as disclosed in the
Company SEC Documents filed prior to the date of this
Agreement or in Schedule 3.09, Seller and its
Subsidiaries are in compliance in all material respects
with all laws, statutes, regulations, rules, ordinances,
judgments, decrees, orders, writs, and injunctions, of
any court or Governmental Entity relating to any of the
property owned, leased, or used by them, or applicable to
their business (including the Business), including
employment and employment practices, labor relations,
occupational safety and health, environmental, tax,
interstate commerce, and antitrust laws, except for such
non-compliance which would not have a Material Adverse
Effect on Seller and its Subsidiaries taken as a whole.
Except as set forth in the Company SEC Documents filed
prior to the date of this Agreement, neither Seller nor
any of its Subsidiaries nor any of their respective
properties is subject to any judgment, decree, order,
writ, or injunction having, or which would have, a
Material Adverse Effect on Seller and its Subsidiaries
taken as a whole, or which would prevent or delay the
consummation of the Merger or the transactions
contemplated by this Agreement.
(c) Permits. Seller and its Subsidiaries
hold all licenses, permits, variances, and approvals of
Governmental Entities necessary for the lawful conduct of
their respective businesses (including the Business) as
currently conducted except where the failure to hold such
licenses, permits, variances, or approvals would not have
a Material Adverse Effect on Seller and it Subsidiaries
taken as a whole.
3.10. Xxxxxx Intellectual Property. Except as
disclosed in the Company SEC Documents filed prior to the
date of this Agreement or in Schedule 3.10, to the
knowledge of Seller, Seller and its Subsidiaries own or
possess adequate licenses or other valid rights to use or
operate within the scope of all United States and foreign
patents, trademarks, trade names, copyrights, service
marks, all applications therefor and registrations
thereof, confidential or proprietary technical and
business information, know-how and trade secrets, and
computer software (collectively, "Xxxxxx Intellectual
Property") which are material to the operations of Seller
and its Subsidiaries, taken as a whole, as currently
conducted. Except as disclosed in the Company SEC
Documents filed prior to the date of this Agreement or in
Schedule 3.10, such Xxxxxx Intellectual Property that is
owned by Seller or its Subsidiaries is not subject to any
Liens except for such Liens that would not have a
Material Adverse Effect on Seller or its Subsidiaries,
and, to the knowledge of Seller, there are no
infringements or other violations or conflicts with the
rights of others with respect to the (a) use of or other
conduct by Seller or its Subsidiaries within the scope
of, (b) ownership of, (c) validity of, or (d)
enforceability of, any Xxxxxx Intellectual Property owned
by Seller or its Subsidiaries that has or would have a
Material Adverse Effect on Seller and its Subsidiaries
taken as a whole.
3.11. Seller Agreements. Each Seller Agreement
that is material to the consolidated business and
operations of Seller and its Subsidiaries as currently
conducted or that is listed on Schedule 3.11
(collectively, the "Material Seller Agreements") is a
valid, binding, and enforceable obligation of Seller or
the Subsidiary of Seller that is a party thereto, except
where the failure to be valid, binding, and enforceable
would not have a Material Adverse Effect on Seller and
its Subsidiaries taken as a whole, and there are no
defaults thereunder on the part of Seller or its
Subsidiary (which is a party thereto, as the case may
be), or, to the knowledge of Seller, on the part of the
other party thereto), except those defaults that would
not have a Material Adverse Effect on Seller and its
Subsidiaries taken as a whole. Except as disclosed in
Schedule 3.11, neither Seller nor any of its Subsidiaries
is a party to any technology license agreement or sales
agency or distributorship agreement that limits in any
material manner the ability of Seller or any of its
Subsidiaries to compete in or conduct any significant
line of business or compete with any Person or in any
geographic area or during any period of time exceeding
one year from the date of the Merger Agreement.
3.12. Taxes. Except as set forth in Schedule
3.12:
(a) Tax Returns. Seller and its Subsidiaries
have (i) filed (or there have been filed on their behalf)
with the appropriate Governmental Entity all material Tax
Returns (as hereinafter defined) required to be filed by
them and such Tax Returns are true, correct, and complete
in all material respects, (ii) maintained in all material
respects all required records with respect to all
material Tax Returns, (iii) paid in full (or there has
been paid on their behalf) all material Taxes (as
hereinafter defined) that are due and payable for all
taxable periods and portions thereof except to the extent
of reserves established in accordance with GAAP on the
consolidated financial statements included in the Company
SEC Documents, and (iv) made provision, in accordance
with GAAP, for all future material Tax liabilities
(including reserves for deferred Taxes established in
accordance with GAAP and for all contingent Tax
liabilities) for all taxable periods and portions
thereof.
(b) Audits. No federal, state, local, or
foreign audits or other administrative proceedings
("Audits") or court proceedings are presently pending
with regard to any Taxes or Tax Returns of Seller or its
Subsidiaries, and none of Seller or its Subsidiaries has
received written notice of either the commencement of any
such Audits or of the intention on the part of any
Governmental Entity to commence any such Audits.
(c) Deficiencies. No Governmental Entity has
asserted in writing against Seller or any of its
Subsidiaries any material deficiency for any Taxes which
have not been satisfied in full or adequately reserved
for in accordance with GAAP on the consolidated financial
statements included in the Company SEC Documents.
(d) Liens. There are no Liens for Taxes upon
any property or assets of Seller or any of its
Subsidiaries (except for current Taxes that are not yet
due and payable).
(e) Settlement. The income Tax Returns of or
including Seller and each of its Subsidiaries have been
examined by and settled with the appropriate Governmental
Entity (or the applicable statutes of limitation for the
assessment of income Taxes for such periods have expired)
for all periods through and including December 31, 1992.
(f) Waivers. None of Seller or its
Subsidiaries has waived any statute of limitation with
respect to Taxes (which waiver is currently in effect) or
has agreed to any extension of time with respect to a Tax
assessment or deficiency (which has not yet been paid) or
has extended the time to file any income or other
material Tax Return (which Tax Return has not
subsequently been filed).
(g) Joint Taxes. None of Seller or its
Subsidiaries is a party to any income tax allocation, tax
indemnity, or tax sharing agreement or arrangement, nor
has any of Seller or its Subsidiaries ever joined in the
filing of a consolidated, combined, unitary, or other
group Tax Return with any corporation other than Seller
and its Subsidiaries. None of Seller or its Subsidiaries
could have any liability for Taxes of any other
corporation, person, or entity (other than Seller and its
Subsidiaries) under Treasury Regulation section 1.1502-6
(or any similar provision of state, local, or foreign
law), by contract or otherwise, that, individually or in
the aggregate, would have a Material Adverse Effect on
Seller and its Subsidiaries taken as a whole.
(h) Compliance. Seller and its Subsidiaries
have complied in all material respects with all
applicable laws, rules, and regulations relating to the
payment and withholding of Taxes and, except to the
extent of any reserves established in accordance with
GAAP on the consolidated financial statements included in
the Company SEC Documents, have, within the time and
manner prescribed by law, withheld and paid over to the
proper Governmental Entity all amounts required to be
withheld and paid over under all applicable laws.
(i) U. S. Property. None of the Subsidiaries
of Seller have an investment in "United States property"
within the meaning of section 956 of the Code.
(j) Definitions. (i) For purposes of this
Section 3.12 the term "Subsidiaries" shall include any
entity in which Seller or a Subsidiary of Seller is a
general partner. (ii) For purposes of this Agreement:
(x) "Taxes" shall mean any and all taxes, charges, fees,
levies, or other assessments, including all net income,
gross income, gross receipts, excise, stamp, real or
personal property, ad valorem, withholding, estimated,
social security, unemployment, occupation, use, service,
service use, license, net worth, payroll, franchise,
severance, transfer, recording, or other taxes,
assessments, or charges imposed by any Governmental
Entity and any interest, penalties, or additions to tax
attributable thereto; and (y) "Tax Return" shall mean any
return, report, or similar statement required to be filed
with respect to any Tax (including any attached
schedules), including any information return, claim for
refund, amended return, or declaration of estimated Tax.
3.13. Environmental Matters.
(a) Compliance. Except as disclosed in the
Company SEC Documents filed prior to the date of this
Agreement or as disclosed in Schedule 3.13, Seller and
its Subsidiaries are and have been in compliance in all
material respects with all applicable Environmental Laws
(as hereinafter defined) which compliance includes (i)
the possession of material permits, licenses,
registrations, and other governmental authorizations and
financial assurances required under applicable
Environmental Laws for Seller and its Subsidiaries to
operate their businesses (including the Business) as
currently conducted, and (ii) compliance with the terms
and conditions thereof, except in all cases above where
such noncompliance would not have a Material Adverse
Effect on Seller and its Subsidiaries taken as a whole.
(b) Claims. Except as disclosed in the
Company SEC Documents filed prior to the date of this
Agreement or as disclosed in Schedule 3.13, (i) there are
no Environmental Claims (as hereinafter defined) pending
or, to the knowledge of Seller, threatened, against
Seller or its Subsidiaries that would result in a
Material Adverse Effect on Seller and its Subsidiaries
taken as a whole, (ii) neither Seller nor its
Subsidiaries has received any written request for
information under any Environmental Law from any
Governmental Entity with respect to any actual or alleged
environmental contamination which has not been remediated
or otherwise resolved and the remediation of which
contamination or the resolution of the request would have
a Material Adverse Effect on Seller and its Subsidiaries
taken as a whole; and (iii) none of Seller, its
Subsidiaries, or, to the knowledge of Seller, any
Governmental Entity, is conducting or has conducted (or,
to the knowledge of Seller, is threatening to conduct)
any environmental remediation or investigation which
would result in a Material Adverse Effect on Seller and
its Subsidiaries, taken as a whole, under any
Environmental Law.
(c) Other Substances. Except as disclosed in
the Company SEC Documents filed prior to the date of this
Agreement or as disclosed in Schedule 3.13, (i) to the
knowledge of Seller, there is no friable asbestos-
containing material in or on any real property currently
owned, leased, or operated by Seller or its Subsidiaries,
(ii) there are no polychlorinated diphenyls in any
equipment currently owned, leased, or operated by Seller
or any of its Subsidiaries as a manufacturing facility,
and (iii) there are and, to the knowledge of Seller, have
been no underground storage tanks (whether or not
required to be registered under any applicable law),
dumps, landfills, lagoons, surface impoundments,
injection xxxxx, or other land disposal units in or on
any property currently or, to the knowledge of Seller,
formerly owned, leased, or operated by Seller or its
Subsidiaries where in each case, the presence, ownership,
or operation of which would result in a Material Adverse
Effect on Seller and its Subsidiaries, taken as a whole.
(d) No Releases. Except as disclosed in the
Company SEC Documents filed prior to the date of this
Agreement or as disclosed in Schedule 3.13, to the
knowledge of Seller, there have been no Releases (as
hereinafter defined) of Hazardous Substances (as
hereinafter defined) at any of Seller's or its
Subsidiaries' properties or of Hazardous Substances which
were generated, stored, disposed of, or transported by
Seller, which could form the basis of any Environmental
Claim against Seller, or to the knowledge of Seller,
against any person or entity whose liability for any
Releases Seller has or may have retained or assumed
either contractually or by operation of law, which would
have a Material Adverse Effect on Seller and its
Subsidiaries taken as a whole.
(e) Definitions. As used in this Agreement:
(i) The term "Environmental Claim" means
any claim, action, investigation, or written notice
to Seller or its Subsidiaries by any person or
entity alleging potential liability or
responsibility of Seller or any of its Subsidiaries
(including potential liability for investigatory
costs, cleanup costs, governmental response costs,
natural resource damages, personal injuries, or
penalties) arising out of, based on, or resulting
from (A) the presence, or release into the
environment, of any Hazardous Substance (as
hereinafter defined) at any location, whether or
not owned or operated by Seller or its Subsidiaries
or (B) circumstances forming the basis of any
violation or alleged violation of any applicable
Environmental Law.
(ii) The term "Environmental Laws"
means all federal, state, local, and foreign laws,
rules, regulations, common law, ordinances,
decrees, orders, and other binding legal
requirements, as in effect as of the date of the
Merger Agreement, relating to pollution or
protection of the environment, including laws and
regulations relating to emissions, discharges,
releases, or threatened releases of Hazardous
Substances, or otherwise relating to the
manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or
handling of Hazardous Substances.
(iii) The term "Hazardous Substance"
means any chemicals, pollutants, contaminants,
hazardous wastes, toxic substances, or radioactive
materials regulated under any Environmental Law,
and oil and petroleum products.
(iv) The term "Release" means any
release, spill, emission, discharge, leaking,
pumping, injection, deposit, disposal, dispersal,
leaching, or migration into the indoor or outdoor
environment (including ambient air, surface water,
groundwater, and surface or subsurface strata).
3.14. No Default. Except as disclosed in the
Company SEC Documents filed prior to the date of this
Agreement or as disclosed in Schedule 3.14, the business
(including the Business) of Seller and each of its
Subsidiaries is not being conducted in default or
violation of any term, condition, or provision of (a) its
respective certificate of incorporation or bylaws or
similar organizational documents, (b) any Material Seller
Agreement, or (c) any federal, state, local, or foreign
law, statute, regulation, rule, ordinance, judgment,
decree, writ, injunction, franchise, permit, or license
or other governmental authorization or approval
applicable to Seller or any of its Subsidiaries,
excluding from the foregoing clauses (b) or (c), defaults
or violations that would not have a Material Adverse
Effect on Seller and its Subsidiaries taken as a whole or
would not materially impair the ability of (i) Seller to
consummate the Merger or (ii) Seller to consummate the
transactions contemplated by this Agreement.
3.15. Brokers. Except for Xxxxxxxx Wretheim
and Xxxxx Xxxxxx (true and complete copies of whose
engagement letters have been provided to Purchaser,
directly or indirectly, no broker, finder, or investment
banker is entitled to any brokerage, finder's, or other
fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements
made by or on behalf of Seller.
3.16. Property. Seller and its Subsidiaries,
as the case may be, have good and valid title to or, in
the case of leased property, have valid leasehold
interests in all properties and assets necessary to
conduct the business (including the Business) of Seller
as currently conducted, except to the extent the failure
of this representation and warranty to be true would not
have a Material Adverse Effect on Seller and its
Subsidiaries, taken as a whole.
3.17. Labor Matters. Except as disclosed in
the Company SEC Documents filed prior to the date of this
Agreement, neither Seller nor any of its Subsidiaries is
a party to or bound by any collective bargaining
agreement or other labor union contract applicable to
persons employed by Seller or its Subsidiaries nor, to
the knowledge of Seller, as of the date of this
Agreement, are there any activities or proceedings of any
labor union to organize any such employees. Except as
disclosed in the Company SEC Documents filed prior to the
date of this Agreement or as disclosed in Schedule 3.17,
as of the date of this Agreement, (i) there are no unfair
labor practice charges or complaints pending against
Seller or any of its Subsidiaries before the National
Labor Relations Board or any current union representation
questions involving employees of Seller or any of its
Subsidiaries and (ii) there is no labor strike, lockout,
organized slowdown, or organized work stoppage in effect
or, to the knowledge of Seller, threatened against Seller
or any of its Subsidiaries, which, in either such case,
has had or would have, a Material Adverse Effect on
Seller and its Subsidiaries taken as a whole.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants, as of the
date hereof and as of the Closing Date, to Seller as
follows:
4.01. Organization. Purchaser is a corporation
duly organized, validly existing, and in good standing
under the laws of Utah. Purchaser has all requisite
corporate power and authority to own, lease, and operate
its properties and to carry on its business as now being
conducted except where the failure to have such power or
authority would not have a Material Adverse Effect on
Purchaser, taken as a whole, or materially impair or
delay the consummation of the transactions contemplated
by this Agreement.
4.02. Authorization and Validity of Agreement.
Purchaser has the requisite corporate power and authority
to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and
delivery by Purchaser of this Agreement and the
consummation of the transactions contemplated hereby have
been duly authorized by its Board of Directors and no
other corporate proceedings on the part of Purchaser are
necessary to authorize the execution and delivery of this
Agreement by Purchaser and the consummation of the
transactions contemplated hereby. This Agreement has
been duly executed and delivered by Purchaser. Assuming
due authorization, execution, and delivery of this
Agreement by Seller, this Agreement is a valid and
binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, except that such
enforcement may be subject to or limited by (i)
bankruptcy, insolvency, or other similar laws, now or
hereafter in effect, affecting creditors' rights
generally, and (ii) the effect of general principles of
equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
4.03. No Violations; Consents and Approvals.
Except as disclosed in Schedule 4.03, no filing with, and
no permit, authorization, consent, or approval of, any
Governmental Entity is necessary for the consummation by
Purchaser of the transactions contemplated by this
Agreement. Neither the execution and delivery of this
Agreement by Purchaser nor the consummation by Purchaser
of the transactions contemplated hereby nor compliance by
Purchaser with any of the provisions hereof will (a)
conflict with or violate any provision of the Articles of
Incorporation or Bylaws of Purchaser, or (b) violate any
order, writ, injunction, decree, statute, rule, or
regulation applicable to Purchaser or any of its
properties or assets, except in the case of clause (b)
where such violations would not have a Material Adverse
Effect on Purchaser, taken as a whole.
5. COVENANTS
5.01. Plicon Collection. Seller covenants and
agrees that, after the Closing Date, it will (a) use
reasonable efforts to collect from Plicon Corporation, RP
Packaging, and/or any of its or their Subsidiaries or
Affiliates (collectively, the "Plicon Group") any
indebtedness or other amount owed as of the Closing Date
by any member of the Plicon Group to Seller, and (b)
remit promptly to Purchaser all sums collected by Seller
after the Closing Date with respect to such indebtedness
and other obligations (less any expenses and other
obligations or liabilities incurred by Seller in
connection with such collection).
5.02. Access to Information.
(a) Access. From the date of this Agreement
until the Closing Date, Seller shall afford to Purchaser
and the Purchaser's officers, directors, employees,
representatives, and agents (including investment
bankers, attorneys, and accountants) (collectively,
"Representatives") reasonable access (during normal
business hours) to all of Seller's, and Seller's
Subsidiaries', books, records, files, documents, and
Company Agreements relating to the Business and, during
such period, Seller and each of Seller's Subsidiaries
shall furnish promptly to Purchaser such other
information including copies of books, records, files,
documents, and Seller Agreements, concerning the Business
and all related properties and personnel as Purchaser may
request; provided, that Purchaser and Purchaser's
Representatives will conduct all such inspections in a
reasonable manner. Seller and Seller' Subsidiaries shall
provide Purchaser and Purchaser's Representatives with
reasonable access during normal business hours to
Seller's officers and senior operating personnel
(collectively, the "Business Executives") and such
Business Executives shall reasonably cooperate with
Purchaser and Purchaser's Representatives and provide
Purchaser and Purchaser's Representatives with such
information regarding the Business, the Acquired Assets,
and the Assumed Liabilities as may be reasonably
requested. Seller shall in addition use its reasonable
efforts to provide Purchaser and Purchaser's
Representatives with access to the Representatives,
commercial bankers, actuaries, trustees, outside Plan
administrators, and consultants of Seller and Seller's
Subsidiaries and to use its best efforts to cause such
Representatives, commercial bankers, actuaries, trustees,
outside Plan administrators and consultants to provide
Purchaser and Purchaser's Representatives with such
information regarding the Business, the Acquired Assets,
and the Assumed Liabilities as may be reasonably
requested.
(b) Seller Confidentiality. For a period of
three years after the Closing Date, Seller shall keep
confidential, and cause its Affiliates and its and their
respective Representatives to keep confidential, all
information relating to the Business, except as required
by law or administrative process and except for
information that is available to the public on the
Closing Date, or thereafter becomes available to the
public other than as a result of a breach of this Section
5.02(b).
5.03. Further Action; Reasonable Best Efforts.
(a) Pre-Closing Action. Upon the terms and
subject to the conditions herein provided, each of the
parties hereto agrees to use its reasonable best efforts
to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary under applicable
laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including
(i) to comply promptly with all legal requirements which
may be imposed on it with respect to this Agreement and
the transactions contemplated hereby (which actions shall
include furnishing all information required by applicable
law in connection with approvals of or filings with any
Governmental Entity), (ii) to satisfy the conditions
precedent to the obligations of such party hereto, (iii)
to obtain any consent, authorization, order, or approval
of, or any exemption by, any Governmental Entity or other
public or private third party required to be obtained or
made by Seller, Purchaser, or any of their respective
Subsidiaries in connection with the Acquisition or the
taking of any action contemplated by this Agreement, (iv)
to effect all necessary registrations and filings, and
(v) to take any action reasonably necessary to vigorously
defend, lift, mitigate, or rescind the effect of any
litigation or administrative proceeding adversely
affecting the Acquisition or this Agreement, including
promptly appealing any adverse court or administrative
decision.
(b) Information. Subject to appropriate
confidentiality protections, each of the parties hereto
will furnish to the other parties such necessary
information and reasonable assistance as such other
parties may reasonably request in connection with the
foregoing and will provide the other parties with copies
of all filings made by such party with any Governmental
Entity and, upon request, any other information supplied
by such party to a Governmental Entity in connection with
this Agreement and the transactions contemplated hereby.
Upon the terms and subject to the conditions herein
provided, in case at any time after the Closing Date any
further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and/or
directors of the parties shall use their reasonable best
efforts to take or cause to be taken all such necessary
action.
5.04. Post-Closing Cooperation.
(a) Transition. Purchaser and Seller shall
cooperate with each other, and shall cause their
respective Representatives to cooperate with each other,
after the Closing to ensure the orderly transition of the
Business from Seller to Purchaser and to minimize any
disruption to the Business and the other respective
businesses of Seller and Purchaser that might result from
the transactions contemplated hereby. After the Closing,
upon reasonable written notice, Purchaser and Seller
shall furnish or cause to be furnished to each other and
their respective Representatives access, during normal
business hours, to such information and assistance
relating to the Business (to the extent within the
control of such party) as is reasonably necessary for
financial reporting and accounting and other matters,
including defense of claims, disputes, or litigation.
(b) Information and Assistance. After the
Closing, upon reasonable written notice, Purchaser and
Seller shall furnish or cause to be furnished to each
other, as promptly as practicable, such information and
assistance (to the extent within the control of such
party) relating to the Business or Acquired Assets
(including access to books and records) as is reasonably
necessary for the filing of all Tax returns, and making
of any election related to Taxes, the preparation for any
Audit by any Governmental Entity, and the prosecution or
defense of any claim, suit, or proceeding related to any
Tax Return. Seller and Purchaser shall cooperate with
each other in the conduct of any Audit or other
proceeding relating to Taxes involving the Business.
Purchaser shall retain the books and records of Seller
included in the Acquired Assets for a period of seven
years after the Closing. After the end of such seven-
year period, before disposing of such books or records,
Purchaser shall give notice to such effect to Seller and
give Seller, at Seller's cost and expense, an opportunity
to remove and retain all or any part of such books or
records as Seller may select.
(c) Copies. After the Closing Date, (i)
Purchaser shall promptly provide to Seller copies of any
of the Records included in the Acquired Assets requested
from time to time by Seller, and (ii) Seller shall
promptly provide to Purchaser copies of any books of
account, ledgers, general, financial, accounting, and
personnel records, files, invoices, customers' and
suppliers' lists, other distribution lists, billing
records, sales and promotional literature, manuals, and
customer and supplier correspondence that (A) prior to
the Closing Date was used, held for use, or intended to
be used in, or arose out of, the conduct or operation of
the Business, but (B) is not part of the Records included
in the Acquired Assets (including financial and tax
records relating to the Business that are part of
Seller's general ledger).
5.05. Employee Benefits.
(a) Employment Matters. Except with respect
to those individuals listed as "Excluded Employees" in
Schedule 5.05(a), Purchaser shall offer (i) to all
represented and non-represented employees of Seller that
are engaged primarily in the operation or conduct of the
Business as of the Closing Date (including any employee
on vacation, disability, leave of absence, or layoff, as
of the Closing Date) and (ii) to those individuals listed
as "Additional Employees" on Schedule 5.05(a), employment
from the Closing Date at substantially the same salary,
wage, or hourly rate (as applicable), and with other
applicable benefits as provided in this Agreement.
"Company Employees" means all non-bargaining unit
employees of Seller engaged in the operation or conduct
of the Business as of the Closing Date who accept the
offer of Purchaser pursuant to this Section 5.05(a) and
become employees of Purchaser as of the Closing Date.
Except as provided in Section 5.05(b) below, from and
after the Closing Date, Purchaser shall provide on an
uninterrupted basis employee benefits (including, if
applicable, group medical and dental, life insurance,
defined contribution retirement plan, short- and long-
term disability, severance, vacation, and sick pay) for
Company Employees which are, in the aggregate for each
such employee, no less favorable than the employee
benefits provided to similarly situated employees of
Purchaser.
(b) Pension Plans. The following provisions
shall be applicable with regard to pension plans:
(i) Effective as of the close of business
on December 31, 1997, all Company Employees who are
participating in the defined benefit plan or plans
maintained by Seller as of such date (collectively,
the "Seller Defined Benefit Plan") shall cease to
accrue benefits in the Seller Defined Benefit Plan.
(ii) As soon as practicable after
December 31, 1997, and effective as of January 1,
1998, Buyer shall provide under the tax-qualified
defined benefit plan of Buyer (the "Buyer Defined
Benefit Plan") each Company Employee with service
credit for eligibility and vesting purposes
(including eligibility for early or normal
retirement) equal to the service credit to the
Company Employees as of December 31, 1997, under
the Seller Defined Benefit Plan and any defined
benefit plans maintained by an affiliate of Seller.
The accrued benefit with respect to each Company
Employee under the Buyer Defined Benefit Plan shall
be the sum of (1) and (2), as follows:
(1) The accrued benefit of the
Company Employee under the Seller Defined
Pension Plan as of the close of business on
December 31, 1997, but determined by
recognizing compensation earned by such
Company Employee for the Buyer and its
Affiliates after December 31, 1997, minus the
accrued benefit of the Company Employee under
the Seller Defined Benefit Pension Plan as of
December 31, 1997; and
(2) The accrued benefit of the
Company Employee under the Buyer Defined
Benefit, recognizing only service with Buyer
after December 31, 1997.
(c) Past Service Credit. Except as provided
in Section 5.05(b), after the Closing Date all service
with Seller and its Subsidiaries shall be counted as
service with Purchaser for all purposes, including
eligibility to participate, vesting, and determining the
amount of a benefit, but without duplication of benefits,
under the employee benefit plans and compensation
practices (including, if applicable, group medical and
dental, life insurance, defined contribution retirement
plan, short- and long-term disability, severance,
vacation, and sick pay) covering or otherwise benefitting
such employees on and after the Closing Date. Purchaser
hereby agrees to take such action as may be necessary or
appropriate under all employee benefit plans and
compensation practices covering or otherwise benefiting
Company Employees after the Closing Date to provide for
such past service credit.
(d) Co-payments and Deductibles. Each
Company Employee shall be given credit for any deductible
or co-payment amounts paid under Plans maintained by
Seller or its Subsidiaries in respect of the Plan year in
which the Closing Date occurs, to the extent that,
following the Closing Date, they participate in
comparable plans maintained by Purchaser for which
deductibles or co-payments are required. Purchaser shall
also cause each of its Plans to waive any preexisting
condition requirement to the extent waived under the
terms of any Plan maintained by Seller or its
Subsidiaries immediately prior to the Closing Date.
(e) Labor Agreements. To the extent required
by applicable law or the terms of any contract or
agreement disclosed in Schedule 3.17 of the Disclosure
Schedule, Purchaser shall honor all labor or collective
bargaining agreements pertaining to employees of Seller
or any of its Subsidiaries that are primarily engaged in
the operation or conduct of the Business as of the
Closing Date.
(f) Non-Qualified Retirement Plans.
Purchaser hereby agrees to honor all liabilities to
Company Employees and their beneficiaries arising under
all nonqualified, unfunded, deferred compensation
programs of Seller or its Subsidiaries listed on Schedule
5.05(f), including the Xxxxxx Corp. Supplemental
Executive Retirement Plan (the "Xxxxxx SERP")
(g) Retiree Benefits. Purchaser hereby
agrees to provide retiree (including early retiree)
medical benefits to individuals who have been employed by
Seller in the operation or conduct of the Business and
who were or would become eligible for such benefits under
Seller's retiree medical plans as of the Effective Time
(as hereinafter defined) if they terminated their
employment on or before the Effective Time and who
terminate or had terminated their employment on or before
two business days following the Effective Time comparable
to the retiree medical benefits provided to similarly
situated employees of Seller or, at Purchaser's option,
similarly situated employees of Purchaser. "Effective
Time" shall have the meaning ascribed thereto in the
Merger Agreement.
(h) Vacation. Purchaser agrees to provide
all vacation entitlement to Company Employees for the
1997 calendar year as determined under the Seller's
vacation pay policies in effect as of the Effective Time.
(i) Severance Pay. Purchaser hereby agrees
to assume and perform the letter agreements described in
Schedule 5.05(i). In the event any Company Employee is
terminated by Purchaser without cause within one year
following the Effective Time, Purchaser shall provide
severance pay to such employee which is not less than the
amount such employee would have received under the
severance pay plans and practices of Seller and its
Subsidiaries in effect immediately prior to the Effective
Time.
(j) COBRA. After the Closing Date, Purchaser
agrees to provide continuation coverage for purposes of
Part 6 of Title I of ERISA to former nonbargaining unit
employees of Seller (who were engaged primarily in the
operation or conduct of the Business) and their eligible
dependents comparable to the benefits, as from time to
time in effect, provided to similarly situated employees
of Seller.
5.06. Notification of Certain Matters. Seller
shall give prompt notice to Purchaser, and Purchaser
shall give prompt notice to the Seller, of (a) the
occurrence or non-occurrence of any event the occurrence
or non-occurrence of which would cause any representation
or warranty contained in this Agreement to be untrue or
inaccurate in any material respect, (b) any material
failure of the Seller or Purchaser, as the case may be,
to comply with or satisfy any covenant, condition, or
agreement to be complied with or satisfied by it
hereunder, and (c) the commencement or, to the best of
their knowledge, the threat, of any action, suit, claim,
investigation, or proceeding which relates to this
Agreement or the transactions contemplated hereby;
provided, however, that the delivery of any notice
pursuant to this Section 5.06 shall not limit or
otherwise affect the remedies available hereunder to the
party receiving such notice.
5.07. Expenses. Except as set forth in Section
8, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such expenses. All
fees and expenses payable to Xxxxxxxx Xxxxxxxx or Xxxxx
Xxxxxx in connection with the Acquisition or any other
transactions under this Agreement shall be paid by
Seller.
5.08. Waiver of Compliance with Bulk Sales
Laws. Seller and Purchaser agree that Purchaser will not
notify any creditors of Seller pursuant to any provisions
of any laws relating to "bulk sales" and transfers
applicable to the transactions contemplated hereby.
Seller agrees to indemnify Purchaser and hold it harmless
against any and all claims, losses, damages, liabilities,
costs, and expenses incurred by Purchaser as a result of
any failure to comply with any "bulk sales" or similar
laws, unless such claim is based on a liability assumed
by Purchaser hereunder.
5.09. Transfer, Sales, and Use Taxes. Seller
and Purchaser each shall be responsible for and shall pay
one-half of (a) all transfer, recording, real estate
excise, and other similar Taxes and fees ("Transfer
Taxes"), arising out of or in connection with the
transactions contemplated by this Agreement and (b) all
applicable sales and use Taxes ("Sales and Use Taxes").
The party which has the primary responsibility under
applicable law for the payment of any particular Transfer
Taxes or Sales and Use Taxes ("Payor") shall prepare and
file the relevant Tax Return, pay the Transfer Taxes or
Sales and Use Taxes shown on such Tax Return, and notify
the other party ("Other Party") in writing of the
Transfer Taxes or Sales and Use Taxes shown on such Tax
Return and how such Transfer Taxes or Sales and Use Taxes
were calculated, and the Other Party shall reimburse the
Payor for one-half of the amount of such Transfer Taxes
or Sales and Use Taxes in immediately available funds
within ten (10) days of receipt of such notice.
5.10. Purchase Price Allocation. Prior to the
Closing, Purchaser and Seller shall agree to an
allocation of the Purchase Price among the Acquired
Assets (the "Allocation"), a copy of which Allocation
shall be attached to this Agreement as Schedule 5.10.
Seller and Purchaser shall be bound by and act in
accordance with the Allocation in the preparation and
filing of all Tax returns (including filing Form 8594
with the relevant Federal income Tax Return for the
taxable year that includes the Closing Date) and in any
proceeding before any Governmental Entity pertaining to
Taxes. Except as may otherwise be required by a
determination (as defined in Section 1313 of the Code),
Seller and Purchaser shall take no position inconsistent
with the Allocation for Tax purposes. Each of Seller and
Purchaser shall provide the other a copy of its Form 8594
not later than 30 days prior to filing. In the event
that the Allocation is disputed by a Governmental Entity,
the party receiving notice of the dispute shall promptly
notify the other party concerning the nature of the
dispute.
5.11. WARN Compliance. Seller shall not, at
any time following the execution of this Agreement,
effectuate (i) a "plant closing" (as defined in the
Worker Adjustment Retraining Notification Act of 1988
("WARN")) affecting any site of employment or one or more
facilities or operating units within any site of
employment or facility of Seller affected by this
Agreement, or (ii) a "mass layoff" (as defined in WARN)
affecting any site of employment or facility of Seller
affected by this Agreement, or (iii) layoffs or
employment terminations sufficient in number to trigger
application of any similar state or local law. At the
Closing, Seller shall provide Purchaser with a schedule
of all employees of Seller that were engaged primarily in
the operation or conduct of the Business as of the
Effective Date who (i) have suffered an "employment loss"
(as defined in WARN), (ii) suffered a layoff, or (iii)
otherwise suffered a reduction in hours in the period
between execution of this Agreement and the Closing Date.
6. CONDITIONS
6.01. Conditions to Each Party's Obligation.
The obligation of Purchaser to purchase the Acquired
Assets from Seller, and the obligation of Seller to sell
the Acquired Assets to Buyer, is subject to the
satisfaction (or waiver by Seller and Purchaser) on or
prior to the Closing date of the following conditions:
(a) Governmental Approvals. All
authorizations, consents, orders, or approvals of, or
declarations or filings with, or expirations of waiting
periods imposed by, any Governmental Entity necessary for
the consummation of the Acquisition shall have been
obtained or filed or shall have occurred.
(b) No Injunctions or Restraints. No
applicable law or injunction enacted, entered,
promulgated, enforced, or issued by any Governmental
Entity or other legal restraint or prohibition preventing
the consummation of the Acquisition shall be in effect.
(c) Fairness Opinion. Purchaser and Seller
each shall have received an opinion from a nationally
recognized investment banking firm or other Person
satisfactory to both Purchaser and Seller to the effect
that, as of the date hereof, the terms and conditions of
the Acquisition as set forth in this Agreement are fair
to each of Purchaser and Seller, from a financial point
of view.
6.02. Conditions to Obligation of Purchaser.
The obligation of Purchaser to purchase and pay for the
Acquired Assets is subject to the satisfaction (or waiver
by Purchaser) on or prior to the Closing Date of the
following conditions:
(a) Representations and Warranties. The
representations and warranties of Seller contained in
this Agreement qualified as to materiality shall be true
and correct, and those not so qualified shall be true and
correct in all material respects, as of the date hereof
and as of the time of the Closing as though made as of
such time, except to the extent such representations and
warranties expressly relate to an earlier date or a
single date (in which case such representations and
warranties qualified as to materiality shall be true and
correct, and those not so qualified shall be true and
correct in all material respects, on and as of such
earlier date or such single date), and Purchaser shall
have received a certificate signed by an appropriate
officer of Seller to such effect.
(b) Performance of Obligations of Seller.
Seller shall have performed or complied in all material
respects with all obligations and covenants required by
this Agreement to be performed or complied with by Seller
by the time of the Closing, and Purchaser shall have
received a certificate signed by an appropriate officer
of Seller to such effect.
(c) Absence of Proceedings. There shall not
be pending or threatened by any Governmental Entity any
proceeding (or by an other person any proceeding that has
a reasonable likelihood of success) (i) challenging or
seeking to restrain or prohibit the Acquisition or any
other transaction contemplated by this Agreement or
seeking to obtain from Purchaser or any of its Affiliates
in connection with the Acquisition any damages that are
material in relation to Purchaser, (ii) seeking to
prohibit or limit the ownership or operation by Purchaser
or any of its Affiliates of any material portion of the
business or assets of Purchaser (including the Business),
or any of its Affiliates, or to compel Purchaser, or any
of its Affiliates, to dispose of or hold separate any
material portion of the business or assets of Purchaser
(including the Business) or any of its Affiliates, in
each case as a result of the Acquisition or any of the
other transactions contemplated by this Agreement, (iii)
seeking to impose limitations on the ability of Purchaser
to acquire or hold, or exercise full rights of ownership
of, the Acquired Assets, or (iv) seeking to prohibit
Purchaser or any of its Affiliates from effectively
controlling in any material respect the Business.
(d) Financing. Purchaser shall have obtained
third party financing necessary to consummate the
Acquisition and to pay all related fees and expenses, on
terms satisfactory to Purchaser.
(e) Consents. Purchaser shall have received
written consents from all third parties necessary or
appropriate to effect the Acquisition, other than such
consents the absence of which, individually or in the
aggregate, could not reasonably be expected to have a
Material Adverse Effect on the Business or the Acquired
Assets following the Closing.
(f) Clearfield Lease Consent. Without
limiting the generality of Section 6.02(e), Seller shall
have received written consent (in form and substance
satisfactory to Purchaser) from the landlord or
landlords, as the case may be, under the real property
lease or leases relating to the Clearfield Facility,
consenting to the assignment of such lease or leases by
Seller (as tenant) to Purchaser as contemplated in this
Agreement.
(g) Due Diligence. Purchaser shall have
completed its due diligence examination of the Business,
the Acquired Assets, the Assumed Liabilities, and all
other matters relating to the Business and the results of
such examination shall be satisfactory in all respects to
Purchaser.
6.03. Conditions to Obligation of Seller. The
obligation of Seller to sell, assign, convey, and deliver
the Acquired Assets is subject to the satisfaction (or
wavier by Seller) on or prior to the Closing Date of the
following conditions:
(a) Representations and Warranties. The
representations and warranties of Purchaser contained in
this Agreement qualified as to materiality shall be true
and correct, and those not so qualified shall be true and
correct in all material respects, as of the date hereof
and as of the time of the Closing as though made as of
such time, except to the extent such representations and
warranties expressly relate to an earlier date or a
single date (in which case such representations and
warranties qualified as to materiality shall be true and
correct, and those not so qualified shall be true and
correct in all material respects, on and as of such
earlier date or such single date), and Seller shall have
received a certificate signed by an authorized officer of
Purchaser to such effect.
(b) Performance of Obligations of Purchaser.
Purchaser shall have performed or complied in all
material respects with all obligations and covenants
required by this Agreement to be performed or complied
with by Purchaser by the time of the Closing, and Seller
shall have received a certificate signed by an
appropriate officer of Purchaser to such effect.
(c) Absence of Proceedings. No court or
governmental authority of competent jurisdiction shall
have issued an order (which shall not subsequently have
been vacated), restraining, enjoining, or otherwise
prohibiting the consummation of the Acquisition or any
other transaction contemplated by this Agreement, and no
action or proceeding shall have been instituted (which
has a reasonable likelihood of success and which shall
not have been subsequently dismissed), seeking to
restrain, enjoin, or prohibit the consummation of the
Acquisition or any other transaction contemplated by this
Agreement or seeking damages in respect thereof.
7. TERMINATION OF AGREEMENT
7.01. Termination.
(a) Termination Events. Notwithstanding
anything to the contrary contained in this Agreement,
this Agreement may be terminated and the Acquisition and
the other transactions contemplated by this Agreement
abandoned at any time prior to the Closing:
(i) by mutual written consent of Seller
and Purchaser;
(ii) by Seller if any of the
conditions set forth in Sections 6.01 or 6.03 shall
have become incapable of fulfillment, and shall not
have been waived by Seller;
(iii) by Purchaser if any of the
conditions set forth in Section 6.01 or 6.02 shall
have become incapable of fulfillment, and shall not
have been waived by Purchaser; or
(iv) by Seller or Purchaser, if the
Closing does not occur on or prior to December 31,
1997;
provided, however, that the party seeking termination
pursuant to clause (ii), (iii), or (iv) is not then in
breach in any material respect of any of its
representations, warranties, covenants, or agreements
contained in this Agreement.
(b) Notice. In the event of termination by
Seller or Purchaser pursuant to this Section 7.01,
written notice thereof shall forthwith be given to the
other party and the transactions contemplated by this
Agreement shall be terminated, without further action by
any party.
7.02. Effect of Termination. If this Agreement
is terminated and the transactions contemplated hereby
are abandoned as described in Section 7.01, this
Agreement shall become null and void and of no further
force and effect, except for the provisions of (a)
Section 5.07 relating to certain expenses, and (b)
Section 7.01 and this Section 7.02. Nothing in this
Section 7.02 shall be deemed to release any party from
any liability for any breach by such party of the terms
and provisions of this Agreement or to impair the right
of any party to compel specific performance by any other
party of its obligations under this Agreement.
8. INDEMNIFICATION
8.01. Indemnification by Seller. Seller shall
indemnify Purchaser, its affiliates, and each of their
respective officers, directors, employees, stockholders,
agents, and representatives against, and hold them
harmless from, any loss, liability, claim, damage, or
expense (including reasonable legal fees and expenses)
(collectively, "Losses"), as incurred (payable promptly
upon written request), arising from, in connection with,
or otherwise with respect to: (a) any breach of any
covenant of Seller contained in this Agreement, (b) any
Excluded Liability, (c) the failure to comply with
statutory provisions relating to bulk sales and
transfers, if applicable, and (d) any fees, expenses, or
other payments incurred or owed by Seller to any brokers,
financial advisors, or other comparable persons retained
or employed by it in connection with the transactions
contemplated by this Agreement.
8.02. Indemnification by Purchaser. Purchaser
shall indemnify Seller, its affiliates, and each of their
respective officers, directors, employees, shareholders,
agents, and representatives against, and hold them
harmless from, any Loss, as incurred (payable promptly
upon written request), for or on account of or arising
from or in connection with or otherwise with respect
to: (a) any breach of any covenant of Purchaser
contained in this Agreement, (b) any Assumed Liability,
(c) all obligations, liabilities, and commitments arising
out of the operation or conduct of the Business by
Purchaser after the Closing Date, or (d) any fees,
expenses, or other payments incurred or owed by Purchaser
to any brokers, financial advisors, or other comparable
persons retained or employed by it in connection with the
transactions contemplated by this Agreement.
8.03. Calculation of Losses. The amount of any
Loss for which indemnification is provided under this
Section 8 shall be net of any amounts actually recovered
by the indemnified party under insurance policies with
respect to such Loss and shall be (a) increased to take
account of any net Tax cost incurred by the indemnified
party arising from the receipt of indemnity payments
hereunder (grossed up for such increase) and (b) reduced
to take account of any net Tax benefit realized by the
indemnified party arising from the incurrence or payment
of any such Loss. In computing the amount of any such
Tax cost or Tax benefit, the indemnified party shall be
deemed to recognize all other items of income, gain,
loss, deduction, or credit before recognizing any item
arising from the receipt of any indemnity payment
hereunder or the incurrence or payment of any indemnified
Loss.
8.04. Termination of Indemnification. Except
as otherwise provided in Section 9.06 with respect to
representations and warranties, the obligations to
indemnify and hold harmless any party pursuant to this
Section 8 shall survive the Closing and shall not
terminate.
8.05. Procedures.
(a) In order for a party (the "indemnified
party"), to be entitled to any indemnification provided
for under this Agreement in respect of, arising out of,
or involving a claim made by any person against the
indemnified party (a "Third-Party Claim"), such
indemnified party must notify the indemnifying party in
writing of the Third-Party Claim promptly following
receipt by such indemnified party of written notice of
the Third-Party Claim; provided, however, that failure to
give such notification shall not affect the
indemnification provided hereunder except to the extent
the indemnifying party shall have been prejudiced as a
result of such failure (except that the indemnifying
party shall in no event be liable for any expenses
incurred during the period in which the indemnified party
failed to give such notice). Thereafter, the indemnified
party shall deliver to the indemnifying party, promptly
following the indemnified party's receipt thereof, copies
of all notices and documents (including court papers)
received by the indemnified party relating to the Third-
Party Claim other than those notices and documents
separately addressed to the indemnifying party.
(b) If a Third-Party Claim is made against an
indemnified party, the indemnifying party shall be
entitled to participate in the defense thereof and, if it
so chooses, to assume the defense thereof with counsel
selected by the indemnifying party; provided, however,
that such counsel is not reasonably objected to by the
indemnified party. Should the indemnifying party so
elect to assume the defense of a Third-Party Claim, the
indemnifying party shall not be liable to the indemnified
party for any legal expenses subsequently incurred by the
indemnified party in connection with the defense thereof.
If the indemnifying party assumes such defense, the indemnified
party shall have the right to participate in the defense thereof
and to employ counsel, at its own expense, separate from
the counsel employed by the indemnifying party, it being
understood that the indemnifying party shall control such
defense. The indemnifying party shall be liable for the
fees and expenses of counsel employed by the indemnified
party for any period during which the indemnifying party
has not assumed the defense thereof (other than during
any period in which the indemnified party shall have
failed to give notice of the Third-Party Claim as
provided above).
If the indemnifying party chooses to defend or
prosecute a Third-Party Claim, all the indemnified
parties shall cooperate in the defense or prosecution
thereof. Such cooperation shall include the retention
and (upon the indemnifying party's reasonable request)
the provision to the indemnifying party of records and
information that are reasonably relevant to such Third-
Party Claim, and making employees available on a mutually
convenient basis to provide additional information and
explanation of any material provided hereunder. If the
indemnifying party assumes the defense of a Third-Party
Claim, the indemnified party shall not admit any
liability with respect to, or settle, compromise, or
discharge, such Third-Party Claim without the
indemnifying party's prior written consent (which consent
shall not be unreasonably withheld). If the indemnifying
party assumes the defense of a Third-Party Claim, the
indemnified party shall agree to any settlement,
compromise, or discharge of a Third-Party Claim that the
indemnifying party may recommend and that by its terms
obligates the indemnifying party to pay the full amount
of the liability in connection with such Third-Party
Claim, that releases the indemnified party completely in
connection with such Third-Party Claim, and that would
not otherwise adversely affect the indemnified party.
Notwithstanding the two foregoing paragraphs,
the indemnifying party shall not be entitled to assume
the defense of any Third-Party Claim (and shall be liable
for the fees and expenses of counsel incurred by the
indemnified party in defending such Third-Party Claim) if
the Third-Party Claim seeks an order, injunction, or
other equitable relief or relief for other than money
damages against the indemnified party that the
indemnified party reasonably determines cannot be
separated from any related claim for money damages. If
such equitable relief or other relief portion of the
Third-Party Claim can be so separated from that for money
damages, the indemnifying party shall be entitled to
assume the defense of the portion relating to money
damages.
(c) Other Claims. In the event any
indemnified party should have a claim against any
indemnifying party under Section 8.01 or 8.02 that does
not involve a Third-Party Claim being asserted against or
sought to be collected from such indemnified party, the
indemnified party shall deliver notice of such claim with
reasonable promptness to the indemnifying party. The
failure of any indemnified party so to notify the
indemnifying party shall not relieve the indemnifying
party from any liability that it may have to such
indemnified party under Section 8.01 or 8.02, except to
the extent that the indemnifying party demonstrates that
it has been materially prejudiced by such failure. If
the indemnifying party disputes its liability with
respect to such claim, the indemnifying party and the
indemnified party shall proceed in good faith to
negotiate a resolution of such dispute and, if not
resolved through negotiations, such dispute shall be
resolved by litigation in an appropriate court of
competent jurisdiction.
9. GENERAL PROVISIONS
9.01. Assignment. This Agreement and the
rights and obligations hereunder shall not be assignable
or transferable by any party hereto without the prior
written consent of the other parties hereto.
Notwithstanding the foregoing, without the consent of the
other parties hereto, (a) Purchaser may assign its right
hereunder to purchase the Acquired Assets or any portion
thereof (including, but not by way of limitation, the
England Shares) to an Affiliate of Purchaser, and (b)
Purchaser may assign its rights hereunder by way of
security and such secured party may assign such rights by
way of exercise of remedies; provided, however, that no
assignment or transfer shall limit or affect the
assignor's obligations hereunder. Any attempted
assignment in violation of this Section 9.01 shall be
void.
9.02. No Third-Party Beneficiaries. Except as
provided in Section 8 with respect to indemnification,
this Agreement is for the sole benefit of the parties
hereto and their successors and permitted assigns and
nothing herein expressed or implied shall give or be
construed to give to any person, other than the parties
hereto and such successors and assigns, any legal or
equitable rights hereunder.
9.03. Amendments and Waivers. This Agreement
may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto. By an
instrument in writing Purchaser may waive compliance by
Seller, or Seller may waive compliance by Purchaser, with
any term or provision of this Agreement that such other
party was or is obligated to comply with or perform.
9.04. Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission provided that a
confirmed delivery by a standard overnight carrier or a
hand delivery is made within two business days of the
date such facsimile is sent or (b) confirmed delivery by
a standard overnight carrier, or (c) when delivered by
hand, addressed at the following addresses (or at such
other address for a party as shall be specified by like
notice):
(i) If to Seller, to:
Huntsman Polymers Corporation
000 Xxxxxxxx Xxx
Xxxx Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
(ii) If to Purchaser, to:
Huntsman Packaging Corporation
000 Xxxxxxxx Xxx
Xxxx Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
9.05. Interpretation. The headings contained
in this Agreement, in any Exhibit or Schedule hereto, and
in the table of contents and table of defined terms to
this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of
this Agreement. All Exhibits and Schedules annexed
hereto or referred to herein are hereby incorporated in
and made a party of this Agreement as if set forth in
full herein. Any capitalized terms used in any Schedule
or Exhibit, but not otherwise defined therein, shall have
the meaning as defined in this Agreement. When a
reference is made in this Agreement to a Section,
Exhibit, or Schedule, such reference shall be to a
Section of, or an Exhibit or Schedule to, this Agreement
unless otherwise indicated. Whenever the words
"include," "includes," or "including," are used in this
Agreement, they shall be deemed to be followed by the
words "without limitation." When used in this Agreement,
"Affiliate" of any person means another person that
directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under
common control with, such first person.
9.06. Survival of Agreements. The covenants
and agreements of the parties contained in this Agreement
shall survive the Closing and shall not terminate;
provided, however, that the representations and
warranties contained in Section 3 and Section 4 of this
Agreement shall not survive the Closing and shall
terminate upon consummation of the Closing.
9.07. Counterparts. This Agreement may be
executed in two or more counterparts, all of which shall
be considered one and the same agreement, and shall
become effective when one or more such counterparts have
been signed by each of the parties and delivered to the
other parties.
9.08. Entire Agreement. This Agreement,
including the Schedules and Exhibits hereto, contains the
entire agreement and understanding among the parties
hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings
relating to such subject matter. No party shall be
liable or bound to any other party in any manner by any
representations, warranties, or covenants relating to
such subject matter except as specifically set forth
herein.
9.09. Severability. If any provision of this
Agreement (or any portion thereof) or the application of
any such provision (or any portion thereof) to any person
or circumstance shall be held invalid, illegal, or
unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality, or
unenfoceability shall not affect any other provision
hereof (or the remaining portion thereof) or the
application of such provision to any other persons or
circumstances.
9.10. Governing Law; Waiver of Jury Trial;
Enforcement. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Utah, without giving effect to the principles of
conflicts of law thereof. Each party to this Agreement
(a) waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect
of any action, suit, or proceeding arising out of or
relating to this Agreement, (b) consents to submit itself
to the personal jurisdiction of any federal court located
in the State of Utah or any Utah state court located in
Salt Lake County in the event any dispute arises out of
this Agreement or any of the transactions contemplated by
this Agreement, (c) agrees that it will not attempt to
deny such personal jurisdiction by motion or other
request for leave from any such court, and (d) agrees
that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this
Agreement in any court other than a federal or state
court sitting in Salt Lake County, State of Utah.
IN WITNESS WHEREOF, Seller and Purchaser have
executed this Agreement as of the day and year first
above written.
SELLER:
HUNTSMAN POLYMERS CORPORATION,
a Delaware corporation,
By: /s/ Xxx X. Xxxxxxxx
----------------------------
Name: Xxx X. Xxxxxxxx
Title: Chairman and Chief
Executive Officer
PURCHASER:
HUNTSMAN PACKAGING CORPORATION,
a Utah corporation,
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
SCHEDULE 1.03(B)
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
SALES OFFICE LOCATIONS
1. [Southern Region]
0000 Xxxxxxx Xxxx Xx.
Xxxxxxxx 0000, Xxxxx 000
Xxxxxxxx, XX 00000
2. [Western Region]
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
SCHEDULE 1.03(C)
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
WAREHOUSE LOCATIONS
1. [Storage Locker #19]
0000 Xxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
2. [Warehouse -- 5,000 RSF]
Southwest l/4 of Suite 2, on Xxxx 0 & 0
Xxxxxxx Xxxxxxxx
Xxxx of Eagle Point
Chippewa County, WI
3. [Warehouse -- 5,000 S.F.]
Northwest 5,000 S.F. of Suite 2, on Lots 1 &
Xxxxxxx Addition
Town of Eagle Point
Chippewa County, WI
4. [Warehouse -- 3,500 RSF]
Westerly 3500 S/F (50x70) of
Bldg #2, Xxx 0, Xxxxx 0
Xxxxxxx Xxxxxxxx
Xxxx of Eagle Point
Chippewa County, WI
5. [Warehouse -- 12,000 RSF]
000 Xxxxxx Xxxxxx
Xxxxxxxxx 0
Xxxxxxxxxxx, XX
6. [Warehouse -- 40,000 RSF]
000 Xxxxxx Xxxxxx
Xxxxxxxxx 0
Xxxxxxxxxxx, XX
SCHEDULE 1.03(S)
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
OTHER ACQUIRED ASSETS
1. IBM AS400 Computer and related hardware and
equipment located in Seller's executive
offices in Dallas, Texas.
2. Office furniture used by Xxxx Xxxxx and
office furniture located in Seller's
executive offices in Dallas, Texas and used
by executives of the CT Film Division of
Seller.
SCHEDULE 1.04(A)
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
EXECUTIVE OFFICE ACQUIRED ASSETS
1. IBM AS400 Computer and related hardware and
equipment located in Seller's executive
offices in Dallas, Texas.
2. Office furniture used by Xxxx Xxxxx and other
office furniture located in Seller's
executive offices in Dallas, Texas and used
by executives of the CT Film Division of
Seller.
SCHEDULE 1.04(E)
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
OTHER EXCLUDED ASSETS
None.
SCHEDULE 1.06(F)
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
TERMINATED EMPLOYEES
None.
SCHEDULE 1.06(G)
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
OTHER EXCLUDED LIABILITIES
None.
SCHEDULE 1.07
[Attached to and forming a part of
the Asset Purchase Agreement (the
"Agreement") between Huntsman
Polymers Corporation, as "Seller",
and Huntsman Packaging
Corporation, as "Purchaser",
regarding the assets of the CT
Film Division of Seller (formerly
known as Xxxxxx Corporation).
Capitalized terms that are defined
in the Agreement and used in this
Schedule shall have the same
meanings as in the Agreement.]
OTHER LIENS
None.
SCHEDULE 3.01
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
ORGANIZATION, SUBSIDIARIES, ETC.
1. Section 3.1 of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.03
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
NO VIOLATIONS; CONSENTS AND APPROVALS
1. Section 3.4 of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.04
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
SUBSIDIARY CAPITALIZATION
1. Section 3.2(b) of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
2. Schedule 3.2(c) of the "Company's Disclosure
Schedule to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.06
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
ABSENCE OF CERTAIN CHANGES
1. Section 3.6 of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
2. Schedule 5.1 of the "Company's Disclosure
Schedule to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.07
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
NO UNDISCLOSED LIABILITIES
1. Section 3.7 of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.08
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
EMPLOYEE BENEFIT PLANS AND ERISA
1. Section 3.9(a) of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
2. Section 3.9(j) of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
3. Section 3.9(k) of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.09
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
LITIGATION AND COMPLIANCE WITH LAW
1. Section 3.10 of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.10
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
XXXXXX INTELLECTUAL PROPERTY
1. Section 3.11 of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.11
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
SELLER AGREEMENTS
1. Section 3.12(a) of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
2. Section 3.12(b) of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.12
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
TAXES
1. Section 3.13 of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.13
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
ENVIRONMENTAL MATTERS
1. Section 3.14(a) of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
2. Section 3.14(b) of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
3. Section 3.14(c) of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
4. Section 3.14(d) of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.14
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
NO DEFAULT
1. Section 3.15 of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 3.17
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
LABOR
1. Section 3.20 of the "Company's Disclosure
Schedule" to the Merger Agreement is by this
reference incorporated herein and made a part
hereof.
SCHEDULE 4.03
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
GOVERNMENTAL FILINGS, PERMITS, ETC.
None.
SCHEDULE 5.05(A)
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
EXCLUDED EMPLOYEES AND ADDITIONAL EMPLOYEES
Prior to the Closing, Purchaser and Seller
shall agree as to any employees that are to
be designated "Excluded Employees" or
"Additional Employees," and the names of any
such employees, with the agreed designation,
shall be added to this Schedule.
SCHEDULE 5.05(F)
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
NONQUALIFIED, UNFUNDED, DEFERRED COMPENSATION PROGRAMS
Prior to the Closing, Purchaser and Seller
shall agree as to any Nonqualified, Unfunded,
Deferred Compensation Programs that are to be
included on this Schedule and any such agreed
programs shall be added to this Schedule.
SCHEDULE 5.05(I)
[Attached to and forming a part of
the First Amended Asset Purchase
Agreement (the "Agreement")
between Huntsman Polymers
Corporation, as "Seller", and
Huntsman Packaging Corporation, as
"Purchaser", regarding the assets
of the CT Film Division of Seller
(formerly known as Xxxxxx
Corporation). Capitalized terms
that are defined in the Agreement
and used in this Schedule shall
have the same meanings as in the
Agreement.]
LETTER AGREEMENTS FOR SEVERANCE PAY
Prior to the Closing, Purchaser and Seller
shall agree as to any letter agreements for
severance pay that are to be included on this
Schedule and any such agreed letter
agreements shall be added to this Schedule.
SCHEDULE 5.10
[Attached to and forming a part of the First
Amended Asset Purchase Agreement (the
"Agreement") between Huntsman Polymers
Corporation, as "Seller," and Huntsman
Packaging Corporation, as "Purchaser,"
regarding the assets of the CT Film Division
of Seller (formerly known as Xxxxxx
Corporation). Capitalized terms that are
defined in the Agreement and used in this
Schedule shall have the same meanings as in
the Agreement.]
ALLOCATION OF PURCHASE PRICE
1. The Purchase Price will be allocated among
the Acquired Assets after the Closing by
Purchaser and Seller.
2. The Purchase Price will be allocated first
among current assets according to the book
value thereof as of the Closing Date.
3. The balance of the Purchase Price (to the
extent necessary) will next be allocated
among property, plant, equipment, and all
other identifiable tangible property,
intangibles, and other assets (other than
good will) according to the appraised value,
or Purchaser's and Seller's best estimate of
the fair market value, thereof as of the
Closing Date.
4. The balance of the Purchase Price (if any)
will be allocated to goodwill.
