1
EXHIBIT 10.162
January 31, 2000
Wilshire Technologies, Inc.
0 000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Re: Proposal to Purchase Assets of Wilshire Contamination Control Division
Gentlemen:
This letter sets forth the proposed terms and conditions for an agreement
among (i) WCCD Acquisition Corp., a _____________________________________ and a
wholly-owned subsidiary of Foamex Asia Co. Ltd., and Foamex Asia Co., Ltd., a
_____________________________________, (collectively, the "Buyer"), and (ii)
Wilshire Technologies, Inc., a California corporation (the "Seller") with
respect to the acquisition by the Buyer of substantially all of the Seller's
assets in its Wilshire Contamination Control Division (the "Division"), on the
terms set forth below:
1. Structure. Effective February 15, 2000 (the "Closing Date"; it being
understood that the closing may occur on such other date not later than 90 days
after the Seller' s execution of this Letter (the "Termination Date") when all
of the conditions to Closing have been satisfied), the Seller will sell and
convey to the Buyer good and marketable title, free and clear of any liens,
claims or interests of others, to all of the Seller's assets related to the
Division, as listed in Attachment I to this Letter. Assets included on
Attachment 1 consisting of raw material, work in progress and finished goods
inventories of the Division are valued at approximately $____________ at the
date of this letter. Such inventories will be relieved and replenished between
this date and the Closing Date in a manner consistent with Wilshire's ordinary
business practices as provided in section 11.
2. Treatment of Liabilities. The Buyer will assume only those liabilities
arising after the Closing Date under contracts specified in Attachment 1 (the
"Assumed Contracts"), and the Buyer will not assume any other liabilities of the
Seller of any nature, and whether known or unknown, absolute or contingent
(including without limitation all accounts payable, accrued liabilities and
employee-related and retirement plan liabilities). The Buyer may elect to
require the seller to comply with applicable "bulk sales" laws assuming such
provisions of the California law are applicable to assets transferred pursuant
to this Letter.
2
3. Purchase Price
a. The purchase price of the Assets (the "Purchase Price") will be paid
in the form' of quarterly royalty payments payable within 60 days of the
end of each quarter for which such payments are due. The royalty will be
calculated on all swab, wiper, roller and similar contamination control
products sold by Buyer.
i. Year One. 20% of U.S. sales based on collected amounts plus 5.0%
of all other sales based on collected amounts. If, in year one,
operating cash flows (to be defined) are not sufficient to fully pay
the calculated royalty, such deficiency amount will be deferred and
paid in year two, ratably by quarter or as year two operating cash
flows, if greater, allow.
ii. Year two. 18% of U.S. sales based on collected amounts plus 8%
of all other sales based on collected amounts.
iii. Year Three. 16% of U.S. sales based on collected amounts plus
8% of all other sales based on collected amounts.
All royalty payments will commence at closing and cease twelve quarters after
the beginning of the first quarter (three month period) in which sales to which
sales to which such royalty applies aggregate $750,000. Such twelve quarter
period shall constitute the "Basic Royalty Period." Royalty payments will be
collateralized by Seller's assets transferred to Buyer pursuant to item 1 of
this Letter. There will be no cap on the amount of the royalty. Taxes, including
income or withholding taxes, if any, payable on royalties received by the Seller
will be the responsibility of the Seller. Notwithstanding that, Xxxxx and Seller
agree to negotiate terms of the definitive agreement in a tax effective manner
for both parties.
b. To the extent that the Buyer has not paid the Seller at least an
aggregate of $2.5 million in royalties on sales during the twelve
quarter Basic Royalty Period, such Basic Royalty Period shall be
extended for 4 additional quarters or until an aggregate amount of $2.5
million in royalties has been paid to the Seller. Additional royalties
for such extended period shall be calculated based on rates for year
three, as described in section 3 (a) (iii) above.
c. In order to ensure the calculation of royalty payments, the Buyer
will provide the Seller with unaudited quarterly balance sheets and
statements of income within 60 days after each quarter end for each
quarterly royalty period certified by the Buyer's Chief Financial
Officer, which financial statements shall be prepared in accordance with
generally accepted accounting principles applied consistently during the
periods covered thereby and shall be complete and correct and present
fairly the financial condition of the Buyer at the dates of said
statements and the results of its operations for the periods covered
thereby. In addition, the Buyer will provide the Seller with reasonable
access at any time to confirm the calculation of royalty payments. In
the event of a dispute with respect to the calculation of royalty
payments, Buyer and Seller will select a mutually acceptable CPA firm to
review the calculations. Adjustments, if any, proposed by the CPA firm
based on such review will be paid or refunded, as appropriate, without
dispute, within 5
3
working days. The fees of the CPA firm for such review will be borne by
the party making the payment for the adjustment of the royalty. If,
after completion of its review, no adjustment is proposed by the CPA
firm, the party initially requesting the review will be responsible for
such fees.
4. Buyer will expend approximately $900,000 for assets to be devoted to the
production of contamination control products. A tentative listing of such
equipment is listed at Attachment 2 and within 30 days of execution of this
Letter, a finalized listing will be provided to Seller.
5. Employees. Issues relating to employees will be mutually agreed upon at a
later date.
6. Allocation of Purchase Price. If it is determined an explicit allocation
is required to be stipulated in the definitive agreement, Purchase Price shall
be allocated among the Assets as mutually agreed, in a tax effective manner.
7. Definitive Agreement; Conditions to Closing. Subject to the final
sentence of Section 8 below, the parties shall negotiate in good faith to arrive
at a mutually acceptable definitive agreement for approval, execution and
delivery on or before the Termination Date. The definitive agreement shall
contain customary representations and warranties. Execution of a definitive
agreement will be subject to (i) due diligence being satisfactory to the Seller
and Buyer, (ii) the Buyer obtaining on terms satisfactory to Buyer all permits,
licenses and other legal requirements necessary to operate the business, (iii)
the Buyer securing on terms satisfactory to the Buyer employment arrangements
with such of the Seller's employees as the Buyer deems desirable, (iv) the
consent on terms satisfactory to the Buyer to the assignment to the Buyer of all
Assumed Contracts, (v) the accuracy and completeness of all disclosures made to
the Buyer by or on behalf of the Seller and to the Seller by or on behalf of the
Buyer, (vi) the absence of any material adverse change in the Buyer's or
Seller's business, operations, assets or prospects.
8. Access. The Seller shall provide to the Buyer and its agents, attorneys,
consultants, accountants, investment bankers, lenders and employees
(collectively "Representatives") reasonable access to the Seller's facilities,
detailed asset lists, vendor and payable records, books and records and shall
cause the Seller's employees, vendors, suppliers, accountants, and other agents
and representatives of the Seller to cooperate fully with the Buyer and its
Representatives in connection with the Buyer's due diligence investigation of
the Seller and the Seller's assets, contracts, liabilities, operations, records,
business and other aspects of the Seller. The Buyer or Seller shall be under no
obligation to continue with its due diligence investigation or negotiations
regarding the definitive agreement if, at any time, the results of its due
diligence investigation are not satisfactory to the Buyer or Seller for any
reason in its sole discretion. Buyer or Seller will promptly inform the other
party if it determines it will not proceed with the transaction and such notice
will accelerate the Termination Date.
9. Use of Information. All information provided to the Buyer under Section 8
which is proprietary to the Seller and not generally available in the industry
(the "Information") will be used solely for the purpose of evaluating the
possible acquisition
4
by the Buyer and the Buyer and its Representatives will keep all Information
confidential, except that the Buyer may disclose Information to its
Representatives who need to know Information for the purpose of evaluating the
possible acquisition. If the transactions contemplated by this Letter are not
consummated, the Buyer promptly will return to the Seller all copies of the
Information in its possession.
10. Exclusive Dealings. From the date of this Letter through 5:00 p.m. on
the Termination Date, the Seller shall not, directly or indirectly, through any
other person or entity or otherwise, solicit or entertain offers from, negotiate
with or in any manner encourage, discuss, accept or consider any proposal of any
other person or entity relating to the acquisition of all or any part of the
contamination control assets utilized in the operation of the Division.
11. Conduct of Business. Until a definitive agreement has been duly executed
and delivered by all of the parties or this letter has been terminated pursuant
to Section 14 below, the Seller shall conduct the operations of the Division
only in the ordinary course of business. Without limiting the foregoing, the
Seller will not (a) dispose of any fixed assets of the Division with a value in
excess of $10,000, (b) conduct its business in any manner other than its usual
and ordinary course of business, without the Buyer's prior written consent. The
Seller will also furnish the Buyer with unaudited monthly balance sheets and
statements of income for the Division within 45 days after each month and for
each month ending after the date of this Letter, certified by the Chief
Financial Officer, which financial statement shall be prepared in accordance
with generally accepted accounting principles applied consistently during the
periods covered thereby and shall be complete and correct and present fairly the
financial condition of the Seller at the dates of said statements and the
results of its operations for the periods covered thereby.
12. Disclosure. Except as and to the extent required by law or to enforce or
defend rights or obligations under this Letter, without the prior written
consent of the Buyer and the Seller, no party to this Letter shall, and each
shall direct its Representatives not to, directly or indirectly, make any public
comment, statement or communication with respect to, or otherwise publicly
disclose or permit the public disclosure of the existence of discussions
regarding a possible transaction between the parties or any of the terms,
conditions or other aspects of the transaction proposed in this Letter. It is
anticipated Seller, as a public corporation, will be required to disclose the
signing of this Letter.
13. Costs. Each party shall be responsible for and bear all of its or his
own costs and expenses (including any intermediary's, investment banker's,
broker's or finder's fees) incurred in connection with the proposed
transactions, including without limitation expenses of its Representatives,
incurred at any time in connection with pursuing or consummating the proposed
transaction.
14. Termination This Letter may be terminated as described in paragraph 7 or
(a)by written agreement by the Buyer and Seller or (b) upon written notice by
the Buyer or Seller to the other that the Definitive Agreement has not been
executed by the Termination Date. Upon termination of this Letter, the parties
shall have no further obligations hereunder, except as stated in sections
9,10,11,12,13,14 and 15, which shall survive any such termination.
5
15. Nature of this Letter. This Letter is only for the purpose of setting
forth the present understanding of the parties with respect to the transactions
contemplated hereby, and no party shall be under any legal obligation or have
any liability to any other party with respect to the transactions contemplated
hereby until a fully integrated, definitive purchase agreement and other related
documents, are prepared, authorized, executed and delivered by and among all
parties hereto and until all conditions which may be set forth in the definitive
agreement and such other agreements shall have been met. Notwithstanding the
foregoing, the obligations of the parties set forth in Sections 9, 1 0, 11, 12,
13, 14 and 15 shall be valid, binding and continuing obligations of the parties.
16. The definitive agreement will include mutually acceptable provisions
which will preclude the Seller from disclosing knowledge, know-how, trade
secrets or similar information specific to the operation of the Division to
outside parties.
17. This Letter and the definitive purchase agreement shall be governed by
California law and each the Buyer and Seller will be responsible for fees of its
respective attorneys.
If the foregoing is acceptable, please sign and date this Letter in the space
provided below to confirm the mutual agreements set forth herein and return a
copy to the undersigned,
Very truly yours,
WCCD Acquisition Corp.
By:
-------------------------------------
, President
-------------------------
Foamex Asia Co., Ltd.
By: /S/ Xxxxxx Xxxxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxxx , CEO
-------------------------------
Acknowledged and agreed to:
Wilshire Technologies, Inc.
By: /S/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------
Title: Chairman
-----------------------------
Date: 1/31/2000
-----------------------------
