EXHIBIT 10.24
Execution Copy
ASSET PURCHASE AGREEMENT
DATED MARCH 1, 1996
AMONG
GENCORP, INC.,
CAMBRIDGE INDUSTRIES HOLDINGS, INC.
AND
CAMBRIDGE INDUSTRIES, INC.
TABLE OF CONTENTS
Page
Article I - Definitions.............................................. 1
Section 1.01 Definitions..................................... 1
Article II - Purchase and Sale....................................... 2
Section 2.01 Purchase and Sale............................... 2
Section 2.02 Excluded Assets................................. 3
Section 2.03 Assumption of Liabilities....................... 5
Section 2.04 Excluded Liabilities............................ 6
Section 2.05 Consents to Assignment.......................... 7
Section 2.06 Purchase Price; Payment......................... 7
Section 2.07 Purchase Price Adjustment....................... 9
Section 2.08 Purchase Price Allocation....................... 11
Section 2.09 Closing......................................... 12
Article III - Representations and Warranties of the Seller........... 15
Section 3.01 Organization and Existence...................... 15
Section 3.02 Corporate Authorization......................... 15
Section 3.03 Authorization................................... 15
Section 3.04 Non-contravention............................... 16
Section 3.05 Properties...................................... 16
Section 3.06 Litigation...................................... 17
Section 3.07 Material Contracts.............................. 17
Section 3.08 Compliance with Laws............................ 18
Section 3.09 Permits......................................... 18
Section 3.10 Labor and Employment Matters.................... 19
Section 3.11 Intellectual Property........................... 20
Section 3.12 Fees and Commissions............................ 20
Section 3.13 Investment Intent............................... 21
Section 3.14 Absence of Certain Changes...................... 21
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Section 3.15 Real Property Owned............................. 22
Section 3.16 Real Property Leased............................ 22
Section 3.17 Insurance....................................... 23
Section 3.18 Environmental Matters........................... 23
Section 3.19 Financial....................................... 25
Section 3.20 Taxes........................................... 25
Section 3.21 Tooling Receivables............................. 25
Section 3.22 Inspections; Limitation of Seller's Warranties.. 25
Article IV - Representations and Warranties of the Buyer............. 26
Section 4.01 Organization and Existence...................... 26
Section 4.02 Corporate Authorization......................... 26
Section 4.03 Organization and Good Standing of Company
Subsidiaries.................................... 26
Section 4.04 Authorization................................... 27
Section 4.05 Non-contravention............................... 27
Section 4.06 Litigation...................................... 27
Section 4.07 Compliance with Laws............................ 27
Section 4.08 Subordinated Debt............................... 28
Section 4.09 Offering of Securities.......................... 28
Section 4.10 Fees and Commission............................. 28
Section 4.11 Financial Statements............................ 29
Section 4.12 Inspections; Limitation of Seller's Warranties.. 29
Article V - Covenants of the Seller.................................. 30
Section 5.01 Further Conveyances............................. 30
Section 5.02 Non-Compete..................................... 30
Section 5.03 Non-Solicitation of Employees................... 31
Section 5.04 Taxes........................................... 31
Article VI - Covenants of the Buyer.................................. 31
Section 6.01 GenCorp Name.................................... 31
Section 6.02 Vacation of Shared Facility..................... 32
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Section 6.03 Vacation of Xxxxxx Facility..................... 32
Section 6.04 Non-Solicitation of Employees................... 34
Section 6.05 Title Insurance................................. 34
Section 6.06 Environmental Reports........................... 34
Section 6.07 Investigation Limitation........................ 35
Section 6.08 Rushville Lease Termination..................... 35
Article VII - Covenants of Both Parties.............................. 35
Section 7.01 Administration of Accounts...................... 35
Section 7.02 Transfer Taxes.................................. 36
Section 7.03 Access to Former Business Records............... 36
Section 7.04 Access to Former Employees...................... 36
Section 7.05 Inventory....................................... 36
Section 7.06 Reimbursement of Certain Costs.................. 37
Article VIII - Employee Matters...................................... 37
Section 8.01 Salaried Employees.............................. 37
Section 8.02 Union Employees................................. 42
Section 8.03 No Third Party Claims........................... 42
Section 8.04 Workers' Compensation........................... 42
Section 8.05 Plan Payments................................... 43
Article IX - Survival; Indemnification............................... 43
Section 9.01 Survival of Representations and Warranties...... 43
Section 9.02 Seller's Agreement to Indemnify................. 44
Section 9.03 Buyer's Agreement to Indemnify.................. 44
Section 9.04 Indemnification Limits; Exclusive Remedy........ 44
Section 9.05 Procedure for Third Party Claims................ 46
Section 9.06 Procedure for Direct Claims..................... 48
Section 9.07 Environmental Claims............................ 49
Article X - Miscellaneous............................................ 50
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Section 10.01 Expenses........................................ 50
Section 10.02 Bulk Transfer Laws.............................. 50
Section 10.03 Assignment...................................... 50
Section 10.04 Severability.................................... 50
Section 10.05 Amendment and Waiver............................ 51
Section 10.06 Parties in Interest; Limitation on Rights of
Others.......................................... 51
Section 10.07 Counterparts; Effectiveness..................... 51
Section 10.08 Entire Agreement................................ 51
Section 10.09 Governing Law................................... 51
Section 10.10 Notices......................................... 52
Section 10.11 Interpretation.................................. 52
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Exhibit A - Definitions
Exhibit B - Working Capital Items
Exhibit C - Cambridge Benefits
Exhibit D - Environmental Reports
Exhibit E - Farmington Hills RPD Equipment
Exhibit F - GenCorp Accounting Principles
Exhibit G - Xxxxxx RPD Equipment
Exhibit H _ Closing Liability List
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Execution Copy
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT") dated March 1, 1996, among
CAMBRIDGE INDUSTRIES HOLDINGS, INC., a Delaware corporation (the "Parent")
CAMBRIDGE INDUSTRIES, INC., a Delaware corporation ("Cambridge") (Parent and
Cambridge collectively, "Buyer"), and GENCORP, INC., an Ohio corporation (the
"Seller").
WHEREAS, the Seller, among other things, conducts a business through its
Reinforced Plastics Division which manufactures and sells reinforced plastics
components for automobile and truck applications; and
WHEREAS, upon the terms and subject to the conditions of this Agreement,
the Buyer desires to purchase from the Seller and Seller desires to sell to
Buyer substantially all of the assets associated with such business, and the
Seller desires to transfer to the Buyer, and the Buyer has agreed to assume,
certain liabilities associated with such business.
NOW, THEREFORE, in consideration of the premises, and the mutual
representations, warranties, covenants and agreements herein set forth, the
parties agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01. Definitions. Defined terms used in this Agreement have the
-----------
meanings ascribed to them by definition in this Agreement or in Exhibit A.
ARTICLE II
PURCHASE AND SALE
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SECTION 2.01. Purchase and Sale. Upon the terms and subject to the
-----------------
conditions of this Agreement, Cambridge hereby purchases from Seller and Seller
hereby sells, transfers, assigns and delivers to Cambridge, all of its right,
title and interest in and to the assets and properties of Seller which are
Attributable to the RPD Business, wherever located, whether tangible or
intangible, real or personal, whether owned directly or indirectly, other than
the Excluded Assets (all the assets and properties to be transferred to
Cambridge by Seller pursuant to this Agreement are referred to collectively
herein as the "Purchases Assets"). Without limiting the foregoing, the Purchased
Assets include all of Seller's right, title and interest in, to and under the
following (expect as otherwise specified herein and other than those which are
Excluded Assets):
(a) the Shelbyville Facility together with all buildings, fixtures and
improvements erected thereon and appurtenances thereto (the "Shelbyville Real
Property");
(b) the Shadeland Lease and the Rushville Lease (the "Leased Property");
(c) (i) all machinery, equipment, tooling, dies, furniture, office
equipment, communications equipment, vehicles, spare and replacement parts and
other similar tangible personal property Attributable to the RPD Business
(collectively, the "Equipment") including, without limitation, all such property
used or held for use by Seller at the RPD Facilities and (ii) the Xxxxxx RPD
Equipment and Farmingtion Hills RPD Equipment;
(d) (i) all raw materials, work-in-process, finished goods, supplies,
spare parts, samples and stores Attributable to the RPD Business (collectively,
the "Inventory") including, without limitation, all such items used or held for
use by Seller at the RPD Facilities, and (ii) the Xxxxxx RPD Inventory;
(e) all contracts, agreements, options, personal property leases,
licenses, sales and purchase orders, commitments and other instruments of any
kind, whether
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written or oral, to which Seller is a party and which are Attributable to the
RPD Business (collectively, the "Contracts");
(f) all quotations, bids and proposals made or received by Seller and
Attributable to the RPD Business (collectively, "Bids");
(g) all accounts receivable and receivables of Seller with respect to
customer tooling ("Tooling Receivables") together with any unpaid interest or
fees accrued thereon or other amounts due with respect thereto, which are
Attributable to the RPD Business;
(h) all xxxxx cash of Seller located at the RPD Facilities ("Xxxxx
Cash");
(i) all rights, claims, credits, causes of action, rights of set off,
indemnity rights, defenses and warranty and other claims of Seller against third
parties which are Attributable to the RPD Business, whether accrued to or to
accrue, including, without limitation, claims under or pursuant to all
warranties, representations and guarantees made by suppliers, manufacturers,
contractors and other third parties;
(j) all prepaid charges and expenses of Seller Attributable to the RPD
Business;
(k) all licenses, permits, approvals, certificates, consents, orders or
other authorizations issued or granted to Seller by an Governmental Authority
and Attributable to the RPD Business (the "Permits");
(l) originals or copies of all books, records, files, books of account,
invoices, engineering information, sales and promotional literature, manuals,
sales and purchase correspondence, lists of suppliers and customers, personnel
and employment records of Transferred Employees, and accounting, marketing,
engineering and manufacturing documentation, whether in hard copy or computer
format, to the extent Attributable to the RPD Business; and
(m) subject to rights held by third parties that have been licensed by
the Seller prior to the Closing Time, the RPD Intellectual Property.
SECTION 2.02. Excluded Assets. Cambridge expressly understands and
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agrees that the following assets, properties and rights (the "Excluded Assets")
are excluded from, and shall not be counted among, the Purchased Assets:
(a) all of the Seller's cash, negotiable securities, letters of credit,
bonds and cash equivalents (whether or not Attributable to the RPD Business),
Xxxxx Cash;
(b) all Intellectual Property which is not RPD Intellectual Property;
(c) the Ionia Facility and the Ionia Facility permits being retained by
Seller as described on Exhibit A to Section 3.09 of the Seller Disclosure
Schedule;
(d) (i) the Xxxxxx Facility, (ii) the CTC Facility, (iii) the Farmington
Hills Facility, (iv) all machinery, tooling, dies, equipment, furniture, office
equipment, communications equipment, vehicles, spare and replacement parts and
other similar tangible personal property and all raw materials, work-in-process,
finished goods, supplies, spare parts, samples and stores used or held for use
at the Xxxxxx Facility, the CTC Facility, or the Farmington Hills Facility
except for the Xxxxxx RPD Equipment, the Xxxxxx RPD Inventory and the Farmington
Hills RPD Equipment, and (v) The GenCorp Master Lease with GE Capital and all
cars leased thereunder.;
(e) The names and trademarks "GenCorp", and "GenCorp Automotive" and
related trademarks, corporate names, and trade names incorporating "GenCorp",
and all stylized logos incorporating the name "GenCorp";
(f) All rights, claims, credits, causes of action, rights of set off,
indemnity rights, refunds, rebates, defenses and warranty and other claims
against third parties, whether accrued or to accrue, to the extent relating to
any Excluded Assets or to any liability or obligation of Seller which is not an
Assumed Liability;
(g) All deposits, prepaid charges and advance payments to the extent
relating to Excluded Assets or to any liability or obligation of Seller which is
not an Assumed Liability;
(h) All rights or claims to Tax refunds and all Tax benefits;
(i) all policies of insurance and claims and rights under such policies
of
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insurance;
(j) Any item described in Section 2.01(1) which is subject to attorney
client privilege and copies of any of the items described in 2.01(1) and all
books and records pertaining to Seller's employee benefit plans;
(k) All employee benefit plans and any assets of any such plans;
(l) All bank checks, bank accounts, safety deposit boxes, lock boxes and
agreements with banks and other financial institutions; and
(m) All of Seller's rights under this Agreement and any other agreement
or instrument delivered by Seller in connection herewith.
SECTION 2.03. Assumption of Liabilities. Upon the terms and subject to the
-------------------------
conditions of this Agreement, Cambridge hereby assumes and becomes directly and
solely responsible for the payment, performance and discharge of the following
(collectively, the "Assumed Liabilities"):
(a) All liabilities and obligations to the extent reflected on the
Closing Liability List;
(b) Any liability of Seller for unpaid amounts for charges incurred,
goods received, or services rendered to the RPD Business in the ordinary course
prior to the Closing:
(c) All liabilities and obligations arising out of or resulting from any
obligation to accept return of, provide refunds for, or to repair, replace,
recall or service any RPD Business product produced by Seller before the
Closing or produced by Cambridge after the Closing;
(d) All liabilities and obligations arising out of or resulting from any
injury to person or damage to property resulting from RPD Business products
produced, or any RPD Business services performed by Cambridge after the Closing;
(e) All liabilities and obligations arising under or resulting from the
performance of or any nonperformance under any Contract or Bid (excluding: (i)
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the oral understanding described in Section 3.07(a)(ix) of the Seller Disclosure
Schedule and (ii) the COBRA obligations described in Section 3.07(a)(v) of the
Seller Disclosure Schedule) to the extent occurring after the Closing;
(f) All liabilities and obligations arising under or resulting from the
compliance with or any noncompliance under any Permit to the extent occurring
after the Closing, except as otherwise provided in the Ionia Lease as to the
Ionia Leased Facility;
(g) All liabilities and obligations arising out of or resulting from
violation of any Applicable Law in the conduct of the RPD Business by Cambridge
to the extent occurring after the Closing, except as otherwise provided in the
Ionia Lease as to the Ionia Leased Facility; and
(h) All liabilities and obligations arising out of or resulting from any
infringement or other misappropriation of the Intellectual Property rights of
third parties in the conduct of the RPD Business by Buyer to the extent
occurring after the Closing.
SECTION 2.04. Excluded Liabilities. Except for the Assumed Liabilities
--------------------
Cambridge does not hereby assume, and shall not as a result of the transactions
contemplated hereby at any time hereafter become liable for, any liability or
obligation of Seller or any nature whatsoever, whether accrued, liquidated,
unliquidated, known, unknown, or otherwise. Without limiting the foregoing the
Excluded Liabilities include the following liabilities and obligations of Seller
(other than those which are Assumed Liabilities): (a) any litigation in respect
of a liability or obligation of Seller arising from the conduct of the RPD
Business by Seller prior to the Closing Time, (b) any liability or obligation of
Seller to satisfy customer claim(s) reflected in Account 424 (Allowance for
Other Claims and Rebates) of Seller's account(s), (c) any liability or
obligation of Seller under the Environmental Laws in respect of solid waste or
Hazardous Materials which have been transported by or on behalf of Seller for
offsite disposal, (d) any liability or obligation of Seller for any violation of
the Environmental Laws to the extent arising from the operation of the RPD
Business by Seller prior to the Closing Time, including, without limitation, in
respect of any fine or penalty arising from any permit violation and (e) any
liability or obligation arising from an Environmental Claim (collectively, the
"Excluded Liabilities").
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SECTION 2.05. Consents to Assignment. The following shall apply to all
----------------------
Contracts, Bids and Permits:
(a) Anything in this Agreement to the contrary notwithstanding, this
Agreement shall not constitute an assignment or agreement to assign any
Contract, Bid or any Permit (or any rights thereunder) if an attempted
assignment thereof, without the consent waiver, confirmation, novation or
approval (a "Consent") of a third party thereto, would constitute a breach or
other contravention thereof, be ineffective with respect to any party thereto or
in any way adversely affect the rights of Cambridge or Seller thereunder.
(b) With respect to any such Contract, Bid or Permit, after the Closing,
the Seller and Cambridge will use all reasonable good faith efforts to obtain as
expeditiously as possible the Consent of the other parties to such item for the
assignment thereof to Cambridge or, alternatively, written confirmation from
such parties reasonably satisfactory in form and substance to Cambridge and the
Seller that such Consent is not required; provided, however, that Seller will
not be obligated to pay any consideration therefor or to incur any other
obligation in connection therewith.
(c) To the extent that any such Consent is not obtained, Seller shall, to
the extent it may lawfully and without breach do so, use all reasonable efforts
to: (i) cooperate with Cambridge in any reasonable arrangement intended to
provide to Cambridge the benefits of any such Contract, Bid or Permit and
(ii) upon Cambridge's reasonable request enforce for the benefit of Cambridge,
any rights of Seller arising from any such Contract, Bid or Permit. Cambridge
will reimburse Seller for all reasonable out-of-pocket costs incurred by Seller
in using such reasonable efforts under this Section 2.05(c).
(d) Provided that Seller has complied with its obligations under
Section 2.05(b) and (c), then, notwithstanding the absence of any such Consents,
from and after the Closing, Buyer shall perform all obligations under such
Contracts, Bids and Permits on behalf of Seller.
SECTION 2.06. Purchase Price: Payment;
-----------------------
(a) For purposes of this Agreement, the term "Purchase Price" means:
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(i) Twenty-Seven Million Five Hundred Sixty Thousand Dollars
($27,560,000);
(ii) minus Nine Million Dollars ($9,000,000) (the "Estimated
-----
Non-Tooling Accounts Receivable Amount");
(iii) minus the amount that (A) $10,600,000 exceeds (B) Fifteen
-----
Million Four Hundred Thousand Dollars ($15,400,000) (the "Estimated Trade
Accounts Receivable Amount") less Five Million Two Hundred Thousand ($5,200,000)
the ("Estimated Accounts Payable Amount");
(iv) plus The Subordinated Note; and
----
(v) plus or minus the amount of the Adjustment (as defined in
---- -----
Section 2.07).
For purposes of this Agreement, the "Estimated Cash Purchase Price" shall
be resulting amount of (i) through (iii) above and equals Eighteen Million One
Hundred Sixty Thousand Dollars ($18,160,000).
(b) At the Closing: (i) Cambridge shall pay to Seller by wire transfer
the Estimated Cash Purchase Price, and (ii) Parent shall deliver to Seller the
Subordinated Note. When finally determined in accordance with Section 2.07,
Cambridge shall pay to Seller or Seller shall pay to Cambridge, as the case may
be, the amount of the Adjustment.
(c) All payments of cash hereunder shall be made by delivery to the payee
as follows:
(i) Payments under this Agreement in excess of $10,000 shall be
made by wire transfer (in immediately available funds) to the account designated
by the payee.
(ii) In all other cases, the party obligated to make a payment
under this Agreement will do so by delivering to the payee a bank cashier's
check (in immediately available funds) payable to the order of the payee.
8
SECTION 2.07. Purchase Price Adjustment. The Adjustment (as defined below)
-------------------------
will be determined as follows:
(a) Cambridge and Seller agree that the Final Cash Purchase Price shall
be determined as follows:
(i) Twenty-Seven Million Five Hundred Sixty Thousand Dollars
($27,560,000);
(ii) minus the Actual Non-Tooling Accounts Receivable Amount; and
-----
(iii) plus any amount that (A) Actual Total Accounts Receivable
Amount less Actual Trade Accounts Payable amount exceeds (B) $10,600,000 or
--
minus any that (A) $10,600,000 exceeds (B) the Actual Total Accounts Receivables
Amount less the Actual Trade Accounts Payable Amount, as the case may be.
(b) As promptly as possible following the Closing Time, but in any event
within thirty (30) days following the Closing Time, Seller shall prepare and
deliver to Cambridge a closing statement (the "Closing Statement") setting
for the Actual Non-Tooling Accounts Receivable Amount, the Actual Total
Accounts Receivable Amount and the Actual Trade Accounts Payable Amount
(collectively, the "Actual Receivable and Payable Items") as of the Closing
Time. The Closing Statement shall be prepared in accordance with the GenCorp
Accounting Principles and, to the extent not described in the GenCorp Accounting
Principles, in accordance with GAAP consistently applied (for purposes of this
Section 2.07 collectively referred to as the "Accounting Principles").
Cambridge shall give Seller access to the data necessary to prepare the Closing
Statement and provide Seller with the reasonable assistance of Cambridge's
employees in connection therewith. Representatives of Cambridge shall have the
right to participate with the representatives of Seller in the process of
preparing the Closing Statement and shall have access to all data, schedules and
work papers used by Seller in preparing the Closing Statement. Cambridge shall
have the right to have the Closing Statement audited and Seller shall reasonably
cooperate with Cambridge and Cambridge's accountants in conducting such audit.
(c) The Closing Statement shall become final and binding upon Cambridge
unless on or before the (30th) day after Cambridge's receipt of the Closing
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Statement Cambridge shall deliver to Seller a written notice of its objection to
the amount of any Actual Receivable and Payable Item on the Closing Statement,
together with proposed changes thereto and the reasons for such changes;
provided, however, that the only objection to the Closing Statement which
Cambridge may make is whether the Closing Statement accurately reflects, in
accordance with the Accounting Principles used to prepare the Closing Statement,
the book value or book amount of the Actual Receivable and Payable Items
included thereon. Cambridge may not object to any other matter pertaining to the
Closing Statement. All matters on which no notice of objection is given shall be
deemed final and binding. In no event may Cambridge submit a notice of objection
which suggests a change in the Closing Statement of less than $100,000 in the
aggregate.
(d) If Cambridge issues a notice of objection, Seller and Cambridge shall
meet and attempt to resolve the dispute within fifteen (15) days following
Cambridge's notice of objection. If the parties resolve all or some of the
matters in dispute within such fifteen (15) day period then the parties shall
prepare and sign an Adjusted Closing Statement reflecting such agreement which
shall be deemed final and binding. As to matters which remain in dispute after
such fifteen (15) day period ("Unresolved Matters"), the Closing Statement shall
be deemed final unless Cambridge shall within ten (10) days after the end of
such fifteen (15) day period request that the Closing Statement be reviewed by
the Accounting Firm.
(e) Cambridge shall give notice of its request for review by the Accounting
Firm to Seller in writing and shall within ten (10) days after such notice
submit a written statement of its position to the Accounting Firm and to Seller.
Seller may within ten (10) days of Cambridge submitting its written statement to
the Accounting Firm respond to such written statement with its own written
statement. The Accounting Firm shall consider both written statements as it
performs its duties. The authority of the Accounting Firm in reviewing the
Closing Statement shall be limited to determining whether, as to the Actual
Receivable and Payable Items included within the Unresolved Matters, the Closing
Statement accurately reflects, in accordance with the Accounting Principles used
to prepare the Closing Statement, the book value or book amount of such Actual
Receivable and Payable Items. The Accounting Firm shall not have the authority
to review or make a determination with respect to any matter except the Actual
Receivable and Payable Items included within Unresolved Matters, it being
understood that the Accounting Firm shall not be retained to conduct its own
independent audit or review, but rather shall be
10
retained only to resolve specific differences between Seller and Cambridge
within the range of such difference and consistent with the Accounting
Principles. The Accounting Firm may request that each of the parties provide it
additional information in connection with its review of the Unresolved Matters.
The parties shall require the Accounting Firm to complete its review not later
than the thirtieth (30th) day following the submission of the matter to the
Accounting Firm. Cambridge and Seller shall bear the fees and expenses of review
by the Accounting Firm in the same proportion as the ratio of each parties'
position is to the final determination by the Accounting Firm, as determined by
the Accounting Firm, whose determination shall be final and binding on the
parties.
(f) The Accounting Firm shall prepare a report of any adjustments to such
Actual Receivable and Payable Items it deems necessary so that such Actual
Receivable and Payable Items are reflected on the Closing Statement in
accordance with the Accounting Principles. Such report shall contain an
explanation of any such adjustment and a description of why the Accounting
Principles required such adjustment. Promptly after its completion, the
Accounting Firm shall provide such report to Seller and Cambridge. Seller shall
incorporate all such adjustments into the Closing Statement within fifteen (15)
days after receipt of such adjustments, which shall thereupon become the
Adjusted Closing Statement and which shall be final and binding upon Cambridge
and Seller.
(g) Within ten (10) days after the date the Closing Statement or the
Adjusted Closing Statement becomes final in accordance with this Section 2.07
(such tenth day being referred to herein as the "Settlement Date"), Seller shall
pay to Cambridge the amount, if any, by which the Final Cash Purchase Price
Capital Amount is less than the Estimated Cash Purchase Price or Cambridge shall
pay to Seller the amount, if any, by which the Final Cash Purchase Price is more
than the Estimated Cash Purchase Price, together with, in either case, interest
from the Closing Time on the amount paid under this Section 2.07(g) calculated
at an annual rate equal to the prime rate as publicly announced by Citibank,
N.A., New York, New York as of the Closing Time (any amount so paid under this
Section 2.07(h) the "Adjustment").
SECTION 2.08 Purchase Price Allocation. Not later than sixty (60) days
-------------------------
after the Closing, Cambridge shall provide to the Seller proposed statements
(the "Allocation Statements") allocating, in accordance with generally accepted
appraisal
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techniques, the total of the Purchase Price and the Assumed Liabilities pursuant
to this Agreement, to the different items of Purchased Assets and to the
Seller's obligations hereunder. Cambridge and the Seller agree to negotiate in
good faith definitive Allocation Statements within 10 calendar days following
the date of delivery of such proposed Allocation Statements. Any costs or
expenses incurred by Cambridge in connection with such Allocation Statements
(including appraisal fees) shall be borne by Cambridge. Cambridge and the Seller
agree to file all income, franchise and other Tax returns, and execute such
other documents as may be required by any Governmental Authority, in a manner
consistent with the Allocation Statements. Cambridge shall prepare the Form 8594
under Section 1060 of the Code relating to this transaction based on the
Allocation Statements and deliver such Form to the Seller within 30 calendar
days after finalization of the Allocation Statements as provided above.
Cambridge and the Seller agree to file such Form with each relevant taxing
authority, and to refrain from taking any position inconsistent with such Form
or Allocation Statements with any taxing authority unless otherwise required by
Applicable Law.
SECTION 2.09. Closing.
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(a) Closing. The closing (the "Closing") of the purchase and sale of the
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Purchased Assets and the assumption of the Assumed Liabilities hereunder shall
take place simultaneously with the execution and delivery of this Agreement at
the offices of Seller, 000 Xxxxx Xxxx, Xxxxxxxx, Xxxx 00000-0000 and/or at such
other place as the parties may agree and shall be deemed to have occurred for
all purposes under this Agreement as of 11:59 p.m. on the day prior to the date
of this Agreement (such time the "Closing Time").
(b) Closing Deliveries.
------------------
(i) Deliveries by Buyer. At the Closing, Cambridge and/or Parent
-------------------
shall deliver to Seller the following:
(A) By wire transfer in immediately available funds the sum of
Eighteen Million One Hundred Sixty Thousand Dollars ($18,160,000);
(B) The Subordinated Note and Subordinated Note Credit
Agreement;
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(C) A copy of resolutions of the Board of Directors of each
Buyer, certified by its Secretary authorizing the negotiation, execution,
delivery and performance of this Agreement and all related agreements, documents
and certificates;
(D) A Service Agreement covering the production of sheet
molding compound for Buyer (the "SMC Services Agreement");
(E) A side letter with respect to the supply of in-mold
coatings and adhesives to Buyer by Seller (the "IMC Side Letter");
(F) A lease of a portion of the Ionia Facility (the "Ionia
Lease");
(G) A legal opinion of Jaffe, Raitt, Heuer & Xxxxx as to
authority and enforceability;
(H) The Union Novation Agreements;
(I) Assignment and Assumption of the Rushville Lease and
Shadeland Lease;
(J) Transition Services Agreement.
(K) Offering Side Letter.
(ii) Deliveries by Seller. At the Closing, Seller shall deliver to
--------------------
Buyer the following;
(A) A deed with respect to the Shelbyville Real Property;
provided, however, any and all warranties, expressed or implied, from the use of
the works "grant" or "xxxxx" in the deeds are hereby disclaimed and excluded.
(B) A Patent Assignment for the Patents.
(C) A copy of resolutions of the Board of Directors of Seller,
certified by its Secretary authorizing the negotiation, execution, delivery and
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performance of this Agreement and all related agreements, documents and
certificates;
(D) The SMC Services Agreement;
(E) The IMC Side Letter;
(F) The Ionia Lease;
(G) A legal opinion of X. X. Xxxxx as to authority and
enforceability;
(H) The Union Novation Agreements;
(I) A Xxxx of Sale and Assignment of Intangibles;
(J) Assignment and Assumption of the Rushville Lease and
Shadeland Lease;
(K) A Responsible Party Transfer form with respect to the
Shelbyville Real Property;
(L) Transition Services Agreement;
(M) MESC Form;
(N) Consent and Estoppel Certificates relating to Leased Real
Property; and
(O) Offering Side Letter.
14
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
--------------------------------------------
Except as otherwise set forth on the Seller Disclosure Schedule, Seller
hereby represents and warrants to each Buyer as follows as of the date hereof:
SECTION 3.01. Organization and Existence. Seller is a corporation duly
--------------------------
incorporated, validly existing and in good standing under the laws of the State
of Ohio and has all corporate power and authority to own and operate its
properties and to carry on the RPD Business as now conducted. Seller is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the nature of its activities makes such qualification
necessary to carry on the RPD Business as now conducted.
SECTION 3.02. Corporate Authorization. The execution, delivery and
-----------------------
performance by Seller of this Agreement and each other agreement or instrument
executed and delivered or to be executed and delivered by Seller pursuant to
this Agreement and the consummation by Seller of the transactions contemplated
hereby and thereby are within Seller's corporate powers and have been duly
authorized by all necessary corporate action on the part of Seller. This
Agreement constitutes, and each other agreement or instrument executed and
delivered or to be executed and delivered by Seller pursuant to this Agreement
constitutes or will constitute, a legal, valid and binding obligation of Seller
enforceable against the Seller in accordance with its terms.
SECTION 3.03. Authorization. Except as set forth in Section 3.03 of the
-------------
Seller Disclosure Schedule, the execution, delivery and performance by the
Seller of this Agreement require no action by, consent or approval of, or filing
with, any Governmental Authority other than:
(a) compliance with any applicable requirements of any Antitrust Laws
(including the HSR Act); and
(b) any actions, consents, approvals or filings otherwise expressly
referred to in this Agreement (including the Seller Disclosure Schedule).
15
SECTION 3.04. Non-contravention. Except as set forth in Section 3.04 of
-----------------
the Seller Disclosure Schedule, the execution, delivery and performance by the
Seller of this Agreement and the consummation of the transactions contemplated
hereby, do not and will not:
(a) conflict with the Articles of Incorporation or Code of Regulations of
the Seller;
(b) assuming compliance with the matters referred to in Section 3.03
conflict with or constitute a violation of any provision of any Applicable Law
binding upon or applicable to the RPD Business.
(c) conflict with or result in the breach of any material agreement or
instrument to which Seller is a party or by which it is bound or constitute a
default thereunder which Seller is a party or by which it is bound or constitute
a default thereunder which would result in the Purchased Assets being subject to
a lien or other encumbrance.
SECTION 3.05. Properties.
----------
(a) Except as set forth in Section 3.05 of the Seller Disclosure Schedule,
the Seller owns the Equipment, the Xxxxxx RPD Equipment, the Farmington Hills
RPD Equipment, the Inventory, the Xxxxxx RPD Inventory, and the Tooling
Receivables free and clear of all liens and encumbrances except for: (i)
Permitted Liens, and (ii) liens and encumbrances to secure the payment of
liabilities reflected on the Closing Liability List.
(b) Section 3.05 of the Seller Disclosure Schedule sets forth a true and
complete list of all real property owned by the Seller that is Attributable to
the RPD Business.
(c) Except for the Excluded Assets, the Contracts, Bids and Permits
described in Section 2.05(a), and as set forth in Section 3.05(c) of the Seller
Disclosure Schedule, the Purchased Assets, together with the SMC Services
Agreement and the IMC Side Letter, constitute or provide Cambridge with access
to (subject to the terms of such Agreements), all of the real property, tangible
personal property and Intellectual Property owned by Seller and used or held for
use by Seller in the operation of the RPD Business immediately prior to the
Closing.
16
(d) To Seller's knowledge, and taking into account age, ordinary wear and
tear and current business requirements, the Equipment currently being operated
by Seller in the conduct of the RPD Business requires no major repairs. Section
3.05 of the Seller Disclosure Schedule lists any corrective action required as a
result of an inspection by OSHA, IOSHA or MIOSHA of the Shelbyville, Shadeland,
Rushville or Ionia Leased Facility which has not been completed by Seller.
SECTION 3.06 Litigation. Except as disclosed in Section 3.06 of the Seller
----------
Disclosure Schedule:
(a) there are no actions, suits, or proceedings by any Governmental
Authority or any other Person pending or, to the knowledge of Seller, threatened
against Seller in respect of the RPD Business;
(b) there are no existing orders, judgments or decrees (other than those
of general application) of any Governmental Authority adversely affecting the
RPD Business; and
(c) there are no actions, suits or proceedings by any Governmental
Authority or any other Person pending or, to the knowledge of Seller, threatened
against Seller which are reasonably likely to adversely affect Seller's ability
to perform its obligations hereunder or which seek to enjoin the transactions
contemplated by this Agreement.
SECTION 3.07 Material Contracts.
------------------
(a) Section 3.07 of the Seller Disclosure Schedule identifies by date and
the parties thereto the following (collectively, the "Scheduled Contracts"):
(i) each executory agreement between the Seller and any customer
of the RPD Business for a dollar volume of purchases of products or services
from the RPD Business which (together with all prior purchases under such
agreement) is reasonably expected to exceed $250,000;
(ii) each executory agreement between the Seller and any supplier
of products or services to the RPD Business for a dollar volume of sales to the
RPD Business which (together with all prior sales under such agreement) is
reasonably
17
expected to exceed $250,000;
(iii) all leases of real property which are Attributable to the
RPD Business;
(iv) all leases of tangible personal property Attributable to the
RPD Business with annual leases payments in excess of $20,000;
(v) oral or written contracts with employees of the RPD
Business;
(vi) manufacturers' representative agreements Attributable to the
RPD Business;
(vii) agreements for the license of or requiring the payment of
royalties with respect to Intellectual Property Attributable to the RPD
Business;
(viii) consulting agreements Attributable to the RPD Business; and
(ix) any contract Attributable to the RPD Business not listed in
(i) through (viii) above which requires future expenditure of more than
$500,0000, excluding any such contract which may be terminated without material
penalty.
(b) Except as disclosed in Section 3.07 of the Seller Disclosure
Schedule neither Seller nor, to Seller's knowledge, any other party to any
Scheduled Contract is in material default or has failed to perform any material
obligation thereunder.
SECTION 3.08. Compliance with Laws. To the knowledge of Seller,
--------------------
expect as set forth in Section 3.08 of the Seller Disclosure Schedule, the
operation of the RPD Business as presently conducted by Seller does not violate,
in any material respect, and Applicable Law.
SECTION 3.09. Permits
-------
(a) Section 3.09 of the Seller Disclosure Schedule lists all
material licenses, permits and authorizations issued by a Governmental Authority
which are used or held for use by Seller with respect the RPD Business (the
"Scheduled Permits").
18
(b) Except as set forth in Section 3.09 of the Seller Disclosure
Schedule, each Schedule Permit is valid and in full force and effect.
(c) Except as set forth in Section 3.09 of the Seller Disclosure
Schedule, there is no pending, or to the knowledge of Seller, threatened
proceeding by any Governmental Authority to cancel, modify or fail to renew any
Scheduled Permit.
(d) Except as set forth in Section 3.09 of the Seller Disclosure
Schedule, the Scheduled Permits represent all material licenses, permits and
authorizations of Governmental Authorities necessary to conduct the RPD Business
as currently conducted.
SECTION 3.10. Labor and Employment Matters. Except as set forth in Section
----------------------------
3.10 of the Seller Disclosure Schedule:
(a) Section 3.10 of the Seller Disclosure Schedule lists all employees of
the RPD Business.
(b) Section 3.10 of the Seller Disclosure Schedule lists each "employee
pension benefit plan", as such term is defined in Section 3(2) of ERISA, each
"employee welfare benefit plan", as such term is defined in Section 3(1) of
ERISA, and each compensation, vacation, insurance, disability, severance, or
other plan providing employee benefits maintained by the Seller in which any
employees of the RPD Business participate (collectively, the "Plans"). Seller
has provided Buyer true and correct copies of all current material documents
relating to the employee benefit plans listed in Section 3.10 of the Seller
Disclosure Schedule, including, but not limited to, with respect the employee
benefit plans covering the union employees of the RPD Business: (i) current plan
documents; (ii) current trust documents; (iii) current summary plan
descriptions; (iv) the most recent financial statements; (v) the most recent
actuarial valuation for the pension plan; (vi) the most recent annual report;
(vii) all Internal Revenue Service Rulings, if any; and (viii) the most recent
Internal Revenue Service determination letter. The defined benefit plans
included within the Union contracts are not multi-employer plans as defined in
Section 3(37) of ERISA.
(c) Section 3.10 of the Seller Disclosure Schedule lists each collective
bargaining agreement respecting employees of the RPD Business which is binding
19
on the Seller. Except as set forth in Section 3.10 of the Seller Disclosure
Schedule: (i) there is no labor strike, slowdown or stoppage pending or, to
Seller's knowledge, threatened by employees of the RPD Business; and (ii) no
grievance or arbitration proceeding under any collective bargaining agreement
applicable to the RPD Business is pending or, to the knowledge of Seller,
threatened.
(d) Except as provided in Section 3.10 of the Seller Disclosure Schedule,
there are no severance payments which could become payable by Buyer under the
terms of any oral or written agreement or commitment between Seller and any
employee of Seller.
SECTION 3.11. Intellectual Property.
---------------------
(a) Except as set forth in Section 3.11 of the Seller Disclosure
Schedule:
(i) The Patents constitute all patents and patent applications
owned by Seller which are solely and exclusively useful in the RPD Business;
(ii) There are no registered trademarks or trademark registration
applications owned by Seller which are solely and exclusively useful in the RPD
Business.
(b) Except as set forth in Section 3.11 of the Seller Disclosure Schedule
the Seller has not, during the two years preceding the date of this Agreement,
been a party to any action, claim or proceeding, that involved a claim by any
Person that the conduct of the RPD Business by seller infringes on the
Intellectual Property rights of any Person and, to Seller's knowledge, no such
action, claim or proceeding has been threatened against Seller.
(c) To the knowledge of Seller, no Person is infringing on the RPD
Intellectual Property and the use by Seller of the RPD Intellectual Property
does not infringe upon the Intellectual Property rights of any other Person.
SECTION 3.12. Fees and Commissions. No agent, broker, investment banker,
person or firm acting on behalf of under the authority of Seller is or will be
entitled to any broker's, finder's or investment banker's fees or any other
commission or similar fee directly or indirectly in connection with the
transactions
20
comtemplated hereby, and no such fees are or will be chargeable to or for the
account of Buyer nor have or will any such fees be paid or payable out of or in
any manner constitute a lien or charge against the Purchased Assets.
SECTION 3.13. Investment Intent. Seller is acquiring the Subordinated Note
-----------------
for investment solely for the account of Seller and not with a view to or for
resale in connection with the distribution or other disposition thereof in
violation of the Securities Act.
SECTION 3.14. Absence of Certain Changes. Except as contemplated by this
--------------------------
Agreement or as set forth in Section 3.14 of the Seller Disclosure Schedule and,
other than in the ordinary course of business, since November 30, 1995 Seller
has not;
(a) made or incurred any capital expenditures in excess of $100,000 in
any one transaction or series of related transactions for the RPD Business;
(b) made any change in the rate of compensation, commission, bonus or
other direct or indirect remuneration payable or to become payable to any RPD
Business employee;
(c) sold or transferred any of the assets Attributable to the RPD
Business;
(d) terminated or materially amended any Scheduled Contract;
(e) incurred or guaranteed any loan which would become a liability or
obligation of Buyer;
(f) subjected any of the Purchased Assets to any mortgage, pledge, lien
or other material encumbrance which would become a liability or obligation of
Buyer; or
(g) entered into any agreement or commitment (other than this Agreement
or any arrangement provided for or contemplated in this Agreement) to take any
of the types of action which would be required to be disclosed under subsections
(a) through (f) of this Section 3.14.
21
SECTION 3.15 Real Property Owned. Except as set forth in Section 3.15 of
-------------------
the Seller Disclosure Schedule:
(a) Other than the Shelbyville Real Property and Ionia Facility, Seller
owns no real property Attributable to the RPD Business. Section 3.15 of the
Seller Disclosure contains a true and accurate legal description of the
Shelbyville Real Property. Seller has fee simple title to the Shelbyville Real
Property free and clear of all mortgages, liens, encumbrances, encroachments,
easements, restrictions, reservations and tenancies other than the Permitted
Liens.
(b) There is no pending or, to Seller's knowledge, threatened
condemnation or eminent domain proceeding with respect to the Shelbyville Real
Property.
(c) Except for the Permitted liens: (i) there are no real property taxes
or special assessments (other than ordinary real estate taxes) pending or
payable against the Shelbyville Real Property (ii) to Seller's knowledge there
are no contingencies existing under which any assessment for real estate taxes
may be retroactively filed against the Shelbyville Real Property; (iii) to
Seller's knowledge there are no proposed special real property taxes or
assessments that may be assessed against the Shelbyville Real Property or any
part thereof; (iv) there are no penalties due with respect to real estate taxes
and/or assessments in respect of the Shelbyville Real Property, and all real
estate taxes and/or assessments which are due and payable with respect to the
Shelbyville Real Property have been paid in full; and (v) there are no taxes,
permit fees or connection fees which must be paid respecting existing curb cuts,
sewer hookups, water-main hookups or services of a like nature in respect of the
Shelbyville Real Property.
(d) Except as set forth on Schedule 3.15, to Seller's knowledge, and
taking into account age and ordinary wear and tear, the structural components of
the buildings located at the Shelbyville Facility require no major repairs.
SECTION 3.16. Real Property Leased. Section 3.16 of the Seller Disclosure
--------------------
Schedule lists and briefly describes all real properties leased or subleased to
Seller for use solely in connection with the RPD business (the "Leases").
Seller has delivered to Buyer correct and complete copies of the Leases. With
respect to each such Lease:
22
(a) to Seller's knowledge, each Lease is legal, valid, binding,
enforceable and in full force and effect except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally,
including the effect of statutory and other laws regarding fraudulent
conveyances and preferential transfers and subject to the limitations imposed by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding at law or in equity);
(b) to Seller's knowledge, each Lease will continue to be legal, valid,
binding, enforceable and in full force and effect on identical terms following
the Closing except to the extent such terms are changed in connection with the
transactions contemplated hereby and except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally, including the
effect of statutory and other laws regarding fraudulent conveyances and
preferential transfers and subject to the limitations imposed by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding at law or in equity);
(c) Seller has not assigned, transferred, conveyed, mortgaged, deeded in
trust or encumbered any interest in any Lease.
SECTION 3.17. Insurance. Section 3.17 of the Seller Disclosure Schedule
---------
contains loss runs for the last five years setting forth all property, general
and products liability and workers compensation claim activity against the RPD
Business, including the date and place of occurrence, claimant's name, reserves,
amount paid, and whether the claim is open or closed. Except as set forth in
Section 3.17 of the Seller Disclosure Schedule, Seller knows of no occurrence or
event which could reasonably be expected to result in the claim against it of
the type covered by general or product liability insurance.
SECTION 3.18. Environmental Matters. Except as set forth in the
---------------------
Environmental Reports or Section 3.18 to the Seller Disclosure Schedule, to
Seller's knowledge:
(a) There are no pending proceedings or claims, and Seller does not have
any information which reasonably indicates that Seller will be receiving notice
of proceedings or claims, arising, in either case, from: (i) alleged violations
by the
23
Seller of any Environmental Laws in respect of the conduct by it of the RPD
Business, or (ii) the presence, discharge, release or disposal of Hazardous
Materials in the soil or ground water of the Shelbyville Real Property or Leased
Property;
(b) Seller has not received notice under the Environmental Laws as a
potentially responsible party ("PRP") for any facility, site or location in
respect of the conduct by it of the RPD Business;
(c) Seller is in compliance with all applicable limitations,
restrictions, conditions, standards, prohibitions, requirements and obligations
established under the requirements of Environmental Laws in respect of the
conduct by it of the RPD Business as currently conducted, except where such
noncompliance would not have any reasonable likelihood, singly or in the
aggregate, of materially adversely affecting the financial condition,
operations, assets, business or properties of the RPD Business, taken as a
whole;
(d) Seller has timely filed all notices, reports and other submissions
required under all Environmental laws in respect of the conduct by it of the
RPD Business, except for such notices, reports or other submissions with respect
to which the failure to so file would not have any reasonable likelihood, singly
or in the aggregate, of materially adversely affecting the financial condition,
operations, assets, business or properties of the RPD Business taken as a whole;
(e) Seller has been issued in respect of its current conduct of the RPD
Business all permits, certificates, approvals, licenses and other authorizations
required under all Environmental Laws and is, in respect of the current conduct
by it of the RPD Business, in compliance therewith except for such permits and
other authorizations with respect to which the failure to obtain or to comply
with would not have any reasonable likelihood, singly or in the aggregate, of
materially adversely affecting the financial condition, operations, assets,
business or properties of the RPD Business, taken as a whole;
(f) There is no contamination in soils or groundwater of or beneath the
Shelbyville Real Property or Leased Property above levels that exceed
remediation standards based on regulations, guidance or risk-based criteria
warranting studies or remediation or both which would have any reasonable
likelihood, singly or in the aggregate, of materially adversely affecting the
financial condition, operations,
24
assets, business or properties of the RPD Business, taken as a whole;
(g) There have not been and there are no underground storage tanks,
active or abandoned, on or under the Shelbyville Real Property or the Leased
Property;
(h) There are no written environmental investigations, audits, reviews
or assessments prepared by Seller in respect of the Shelbyville Real Property or
Leased Property which have not been provided or made available to Buyer.
SECTION 3.19. Financial. The financial statements described in Section
---------
3.19 of the Seller Disclosure Schedule were prepared in accordance with the
GenCorp Accounting Principles, and, to the extent not described in the GenCorp
Accounting Principles, in accordance with GAAP, consistently applied, and fairly
present the income statement and balance sheet for Seller's Reinforced Plastics
Division taken as a whole.
SECTION 3.20. Taxes. Seller represents to Buyer that, with respect to the
-----
RPD Business, it is not a party to any agreement with any other person regarding
allocation or payment of Taxes or amounts in lieu of Taxes which would have a
material adverse effect on the Purchased Assets or the RPD Business.
SECTION 3.21. Tooling Receivables. The Tooling Receivables arose in the
-------------------
ordinary course of the RPD Business and have been accounted for consistent with
GenCorp's Accounting Principles.
SECTION 3.22. Inspections; Limitation of Seller's Warranties. Seller is
----------------------------------------------
an informed and sophisticated participant in the transactions contemplated by
this Agreement and has undertaken such investigation, and has been provided with
and has evaluated such documents and information, as it has deemed necessary in
connection with the execution, delivery and performance of this Agreement.
Seller acknowledges that, except for the representations and warranties
expressly set forth herein, neither Buyer or any Affiliate of Buyer makes any,
and does hereby disclaim all, representations or warranties, express or implied,
including, without limitation, any warranty of merchantability or fitness for a
particular purpose. In furtherance of the foregoing, and not in limitation
thereof, Seller acknowledges that no representation or warranty, express or
implied, has been made by the Buyer or any of its Affiliates, with respect to
any financial projection or forecast delivered to
25
Seller with respect to the revenues or profitability which may arise from the
operation of the Buyer's business after the Closing Time. With respect to any
projection or forecast delivered by or on behalf of Buyer to Seller, Seller
acknowledges that (i) there are uncertainties inherent in attempting to make
such projections and forecasts and (ii) it is familiar with such uncertainties.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
-------------------------------------------
Except as set forth on the Buyer Disclosure Schedule, the Parent and
Cambridge hereby jointly and severally represent and warrant to Seller as
follows as of the date hereof:
SECTION 4.01. Organization and Existence. Each Buyer is a corporation duly
--------------------------
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate power and authority to own and operate its
properties and to carry on its business as now conducted. Each Buyer is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the nature of its activities makes such qualification
necessary to carry on its business as now conducted.
SECTION 4.02. Corporate Authorization. The execution, delivery and
-----------------------
performance by each Buyer of this Agreement each other agreement or instrument
executed and delivered or to be executed and delivered by each Buyer pursuant to
this Agreement and the consummation by each Buyer of the transactions
contemplated hereby and thereby are within the corporate powers of each Buyer,
and have been duly authorized by all necessary corporate action on the part of
each Buyer. This Agreement constitutes, and each other agreement or instrument
executed and delivered or to be executed and delivered by a Buyer pursuant to
this Agreement constitutes or will constitute, a legal, valid and binding
obligation of such Buyer, enforceable against such Buyer in accordance with its
terms.
SECTION 4.03. Organization and Good Standing of Company Subsidiaries.
------------------------------------------------------
Section 4.03 of the Buyer Disclosure Schedule lists all Subsidiaries of Parent
and the
26
respective jurisdictions of incorporation (collectively, the "Company
Subsidiaries" and individually a "Company Subsidiary"). Except as set forth in
Section 4.03 of the Buyer Disclosure Schedule, Parent owns, directly or
indirectly, all the shares of outstanding capital stock of each Company
Subsidiary.
SECTION 4.04. Authorization. The execution, delivery and performance by
-------------
each Buyer of this Agreement require no action by, consent or approval of, or
filing with, any Governmental Authority other than:
(a) compliance with any applicable requirements of any Antitrust Laws
(including the HSR Act); and
(b) any actions, consents, approvals or filings otherwise expressly
referred to in this Agreement (including the Buyer Disclosure Schedule).
SECTION 4.05. Non-contravention. Except as set forth in Section 4.05 of
-----------------
the Buyer Disclosure Schedule, the execution, delivery and performance by each
Buyer of this Agreement and the consummation of the transactions contemplated
hereby (including, without limitation, the Subordinated Note and the
Subordinated Note Credit Agreement) do not and will not:
(a) contravene or conflict with its Certificate of Incorporation and
Bylaws;
(b) assuming compliance with the matters referred to in Section 4.04
contravene or conflict with or constitute a violation of any provision of any
Applicable law binding upon or applicable to the its business; or
(c) conflict with or contravene any mortgage, note, indenture, deed of
trust, lease, loan agreement, warrant, registration rights agreement or other
agreement or instrument of Parent or any Company Subsidiary.
SECTION 4.06. Litigation. Except as disclosed in Section 4.06 of the Buyer
----------
Disclosure Schedule:
(a) there are no actions, suits, or proceeding by any Governmental
Authority or any other Person (collectively, "Proceedings") pending or, to the
knowledge of either Buyer, threatened against a Buyer;
27
(b) there are no existing orders, judgments or decrees (other than those
of general application) of any Governmental Authority adversely affecting a
Buyer; and
(c) there are no actions, suits or proceedings by any Governmental
Authority or any other Person pending or, to the knowledge of either Buyer,
threatened against a Buyer which are reasonably likely to adversely effect a
Buyer's ability to perform its obligations hereunder or which seek to enjoin the
transactions contemplated by this Agreement.
SECTION 4.07. Compliance with Laws. To the knowledge of Buyer, except as
--------------------
set forth in Section 4.07 of the Buyer Disclosure Schedule, the operation by
each Buyer of its business as presently conducted by it does not violate, in any
material respect, any Applicable Law.
SECTION 4.08. Subordinated Debt. The Subordinated Note and the
-----------------
Subordinated Note Credit Agreement have been duly authorized by all necessary
corporate action. At the Closing Seller will receive valid title to the
Subordinated Note free and clear of any claim, lien, security interest or other
encumbrance.
SECTION 4.09. Offering of Securities. Except as set forth in Section 4.09
----------------------
of the Buyer Disclosure Schedule, neither Parent nor any Person acting on its
behalf has offered the Subordinated Note or any similar securities of the
Company for sale to, solicited any offers to buy any of the Subordinated Note or
any similar securities of the Company from or otherwise approached or negotiated
with respect to any of the Subordinated Note or any similar securities of the
Company with any Person other than Seller. Neither Parent nor any Person acting
on its behalf has taken or will take any action (including without limitation
any offering of any securities of Parent under circumstances which would require
the integration of such offering with the offering of any of the Subordinated
Note under the Securities Act and the rules and regulations of the SEC
thereunder) which might subject the offering, issuance or sale of any of the
Subordinated Note to the registration requirements of the Securities Act. The
offer, sale and issuance of the Subordinated Note by the Company under this
Agreement will not violate the Securities Act, the Exchange Act or any
applicable state securities or "blue sky" laws.
SECTION 4.10. Fees and Commission. Except as set forth in Section 4.10 of
-------------------
the Buyer Disclosure Schedule, no agent, broker, investment banker, person or
28
firm acting on behalf of under the authority of Buyer is or will be entitled to
any broker's, finder's or investment banker's fees or any other commission or
similar fee directly or indirectly in connection with the transactions
contemplated hereby and no such fees are or will be chargeable to or for the
account of Buyer.
SECTION. 4.11. Financial Statements. Parent has previously delivered to
--------------------
Seller copies of (a) the consolidated balance sheet of the Parent and the
Company Subsidiaries as of December 31 for the fiscal years 1995 and 1994, and
the related consolidated statements of operations, statements of stockholders'
equity and cash flows for the fiscal years 1993 through 1995 (subject to
auditor's adjustment), accompanied for the 1994 fiscal year by the audit report
of Deloitte & Touche, independent public accountants and, for the 1993 fiscal
year by the audit reports of Xxxxxx Xxxxxxxx and Xxxxx Xxxxx, independent public
accountants and (b) the unaudited consolidated balance sheet of the Parent and
the Company Subsidiaries as of January 31, 1996 and the related unaudited
consolidated statement of operations, statements of stockholders' equity and
cash flows for the one month period then ended. All of such financial
statements fairly present the consolidated financial position of the Parent and
the Company Subsidiaries as of the dates shown and the results of the
consolidated operations, statements of stockholders' equity and cash flows of
the Parent and the Company Subsidiaries for the respective fiscal periods or as
of the respective dates therein set forth, in each case subject, as to interim
statements, to changes resulting from year-end adjustments (none of which will
be material in amount and effect). All of such financial statements have been
prepared in accordance with GAAP consistently applied during the periods
involved, except as otherwise set forth in the notes thereto, and Parent and
the Company Subsidiaries have no liabilities or obligations of any nature
(absolute, accrued, contingent or otherwise) which are fully reflected or
reserved against in the balance sheet as of December 31, 1994 included in such
financial statements, except for liabilities that may have arisen in the
ordinary and usual course of business and consistent with past practice and
that, individually or in aggregate, do not have and could not reasonably be
expected to have a material adverse effect on the financial condition of the
Parent and Company Subsidiaries taken as a whole.
SECTION 4.12. Inspections; Limitation of Seller's Warranties. Each Buyer
----------------------------------------------
is an informed and sophisticated participant in the transactions contemplated by
this Agreement and has undertaken such investigation, and has been provided with
and has evaluated such documents and information, as it has deemed necessary in
29
connection with the execution, delivery and performance of this Agreement.
Each Buyer acknowledges that, except for the representations and warranties
expressly set forth herein, neither Seller nor any Affiliate of Seller makes
any, and does hereby disclaim all, representations or warranties, express or
implied, including, without limitation, any warranty of merchantability or
fitness for a particular purpose. In furtherance of the foregoing, and not in
limitation thereof, each Buyer acknowledges that no representation or warranty,
express or implied, has been made by the Seller or any of its Affiliates, with
respect to: (i) any information provided to the Buyer pursuant to the
Confidentiality Agreement or (ii) any financial projection or forecast delivered
to a Buyer with respect to the revenues or profitability which may arise from
the operation of the RPD Business after the Closing Time. With respect to any
projection or forecast delivered by or on behalf of the Seller to a Buyer, each
Buyer acknowledges that (i) there are uncertainties inherent in attempting to
make such projections and forecasts and (ii) it is familiar with such
uncertainties.
ARTICLE V
COVENANTS OF THE SELLER
-----------------------
The Seller agrees that:
SECTION 5.01. Further Conveyances. After the Closing, Seller will execute
-------------------
and deliver to Cambridge (or cause to be executed and delivered to Cambridge),
such additional instruments of conveyance, and Seller shall take such other and
further actions as Cambridge may reasonably request and which are ordinarily
provided by a seller, more completely to sell, transfer, and assign to
Cambridge and vest in Cambridge such title to the Purchased Assets as is
provided for in this Agreement.
SECTION 5.02. Non-Compete. For a period of three (3) years after the
-----------
Closing Time neither Seller nor any Affiliate of Seller will own, manage,
operate or control, anywhere within the United States any business engaged in
compression molding of sheet mold compound for automotive, truck and industrial
applications provided, however, nothing in this Section 5.02 shall preclude
Seller or any Affiliate of Seller from; acquiring any entity or business which
includes operations which engage in such business so long as Seller divests such
business within one year after
30
the date of such acquisition. Prior to divesting any such business, Seller
shall notify Cambridge of its intent to so divest and Cambridge shall have a
period of thirty (30) days to make an offer to purchase such business from
Seller.
SECTION 5.03. Non-Solicitation of Employees. Seller shall not, for a
-----------------------------
period of one (1) year from and after the Closing Time, directly or indirectly
or through any Affiliate, employ or attempt to induce any person who is during
such period in the employ of Cambridge to leave the employ of Cambridge or any
subsidiary of Cambridge.
SECTION 5.04. Taxes. Seller will be responsible for the preparation and
-----
filing of all Tax returns for Seller for all periods as to which Tax returns are
due after the Closing Time (including the consolidated, unitary, and combined
Tax returns for Seller which include the operations of the RPD Business for any
period ending on or before the Closing Time). Seller will make all payments
required with respect to any such Tax returns.
ARTICLE VI
COVENANTS OF THE BUYER
----------------------
The Buyer agrees that:
SECTION 6.01. GenCorp Name.
------------
(a) Except as otherwise permitted by Sections 6.01(b) and (c), Buyer will
discontinue the use of, and delete, paint over or otherwise strike or remove
from any Purchased Assets any names, logos and designs which identify GenCorp as
promptly as reasonably practical after the Closing.
(b) Buyer shall have the right to continue to use the trademark "GenCorp"
(i) on inventory existing on the Closing Date until the depletion of such
inventory, (ii) on packaging materials existing on the Closing Date for a period
of six (6) months after the Closing Date, (iii) on patterns, molds and tools
existing on the Closing Date for a period of twelve (12) months after the
Closing Date, and (iv) on
31
inventory manufactured by Buyer within a period of twelve (12) months after the
Closing Date from patterns, molds and tools existing on the Closing Date which
contain such trademark.
(c) Buyer shall delete the trademark "GenCorp" from all sales aids and
sales literature sold hereunder within a reasonable period after the Closing
Date, but in no event later than six (6) months after the Closing Date. Such
sales aids and sales literature which bear the trademarks of "GenCorp" which are
used by Buyer must state on the face thereof that the RPD business is now owned
by Buyer.
SECTION 6.02. Vacation of Shared Facility. Buyer will, within thirty (30)
---------------------------
days after the Closing, vacate the Farmington Hills Facility and the "A"
building to be razed at Seller's Ionia Facility and remove all Purchased Assets.
Buyer will promptly restore and repair, at its sole expense, any damage done by
the Buyer in vacating the Farmington Hills Facility and removing such Purchased
Assets.
SECTION 6.03. Vacation of Xxxxxx Facility. Buyer will in accordance with
---------------------------
this Section 6.03, within one year after the Closing and at its sole cost, risk
and expense, remove all RPD Xxxxxx Equipment and any other property of Buyer
from the Xxxxxx Facility.
(a) Any RPD Xxxxxx Equipment property which is affixed to the Xxxxxx
Facility or any Xxxxxx Facility building system is collectively referred to
herein as the "Equipment". The removal of the Equipment from the Xxxxxx Facility
is hereinafter referred to as the "Equipment Removal". Buyer shall not, in
connection with the Equipment Removal, engage in any other activities at the
Xxxxxx Facility including, without limitation, any cleaning or rebuilding of any
Equipment except for normal shut-down procedures necessary to move the Equipment
as reasonably agreed upon by Buyer and Seller.
(b) Prior to commencing the Equipment Removal Buyer shall submit to
Seller and obtain Seller's approval (which approval shall not be unreasonably
withheld) of a reasonably detailed written plan for the Equipment Removal. Such
plan shall provide: (1) a schedule for the Equipment Removal; (2) a general
description of the manner in which the Equipment will be removed from the Xxxxxx
Facility; (3) a list of the contractors and other third parties to be used by
Buyer in performing the Equipment Removal; (4) a description of all licenses,
permits and
32
other governmental approvals required by Applicable Law to be obtained in
connection with the Equipment Removal; (5) such other information pertaining to
the Equipment Removal as Seller may reasonably request (such plan, the "Approved
Plan"). The Equipment Removal shall be undertaken in a manner which will not
effect the structural integrity of the Xxxxxx Facility, If Seller reasonably
determines that any of the Equipment Removal may affect the structural integrity
of the Xxxxxx Facility, then Buyer shall obtain if requested by Seller,
appropriate architectural and/or engineering certificates that the affected
building remains in compliance with Applicable Law and applicable safety
standards. Buyer shall be solely responsible for planning and implementing the
Equipment Removal and Seller's review and approval of the Approved Plan shall
not in any manner relieve Buyer of or transfer to Seller any risk, liability or
obligation in respect of the Equipment Removal, which risks, liabilities and
obligations shall at all times remain solely with Buyer.
(c) Buyer shall give Seller ten days advance written notice of its
intention to commence the removal of any items of Equipment. Such notice shall
specify the Equipment to be removed, the dates and times at which such removal
will commence and the dates and times at which such removal is estimated to be
completed.
(d) Buyer shall at its sole risk, cost and expense: (1) conduct the
Equipment Removal in a manner which: will not unreasonably interfere with the
Seller's activities at the Xxxxxx Facility and, will minimize any damage to the
Xxxxxx Facility; (2) conduct the Equipment Removal in a safe and workmanlike
manner using due care and in accordance with all Applicable Laws and the
Approved Plan; (3) obtain all licenses, permits and other governmental approvals
required by Applicable Law in connection with the Equipment Removal prior to
undertaking the Equipment Removal and maintain in force and comply with such
licenses, permits and approvals to the extent required by Applicable Law
including, without limitation, any license, permit or approval which may be
required to perform any "demolition" or its functional equivalent under
Applicable Law; (4) maintain any Equipment Removal work site in a safe
condition; and (5) engage contractors that have the equipment, skill and
experience necessary to perform the Equipment Removal in accordance with
accepted standards of industrial practice and who possess all licenses, permits
and approvals required by Applicable Law.
(e) Buyer shall promptly (and in any event within 20 business days) after
33
each Equipment Removal, and at its sole cost and expense, remove from the Xxxxxx
Facility any debris resulting from the Equipment Removal and commence and
diligently prosecute the repair or replacement in a good and workmanlike manner
using first quality materials any loss or damage to the Xxxxxx Facility
resulting from the Equipment Removal, including, without limitation, by: filling
in and leveling all holes in floors; patching all roofs, ceilings and walls;
repairing, replacing, rewiring, replumbing or rerouting all building system
wires, pipes, ducts and other items so that all building systems perform in
substantially the same manner as prior to any such damage or loss. Without
limiting the foregoing sentence, such repairs and replacements will, at a
minimum, include such repairs and replacements as are necessary: (1) to prevent
any additional damage or loss to the Xxxxxx Facility, (2) to eliminate a risk to
health or safety, and (3) to correct any violations Applicable Law resulting
from the Equipment Removal.
SECTION 6.04. Non-Solicitation of Employees. Buyer shall not for a period
-----------------------------
of one year from and after the Closing, directly or indirectly or through any
Affiliate, employ or attempt to induce any person who is during such period in
the employ of the Seller to leave the employ of Seller; provided that the
foregoing restriction shall not apply to any RPD Business employee at the Xxxxxx
Facility.
SECTION 6.05. Title Insurance. At the Closing Buyer shall obtain, at its
---------------
expense, an ALTA Extended Coverage Owner's Policy of Title Insurance in an
amount not less than the fair market value of the Shelbyville Facility, naming
Buyer as an insured and covering the Shelbyville Facility (the "Title Policy")
from Lawyers Title Company (the "Title Company"). Buyer covenants and agrees
that prior to making an Indemnification Claim against Seller in respect of any
Title Matter it will exhaust its remedies against the Title Company under the
Title Policy is respect of such Title Matters. Seller shall not be liable to or
through Buyer and Buyer shall not assert against Seller and hereby waives any
and all claims against Seller in respect of any Title Matter to the extent
covered by the Title Policy.
SECTION 6.06. Environmental Reports. Buyer will file in respect of the
---------------------
Shadeland, Rushville, Shelbyville and Ionia Facilities with respect to the 1995
calendar year the following: XXXX 312 (Tier 2), XXXX 313 (Form R), Biennial
Waste Report, and State Air Emissions Summary, in each case as required by
Applicable Law.
34
SECTION 6.07. Investigation Limitation. Buyer will not do any
------------------------
investigation or testing of soil or groundwater at the Shadeland Facility or
Rushville Facility or take any other action to solicit, promote, or encourage
the making of any Environmental Claim or which is otherwise reasonably likely to
result in an Environmental Claim being made.
SECTION 6.08. Rushville Lease Termination. Within ninety (90) days after
---------------------------
the Closing, Cambridge shall, at its sole cost and expense, permanently cease
all operations at the Rushville Facility, vacate the Rushville Facility, remove
all of its assets and property from the Rushville Facility and terminate the
Rushville Lease.
ARTICLE VII
COVENANTS OF BOTH PARTIES
-------------------------
The parties agree that:
SECTION 7.01. Administration of Accounts.
--------------------------
(a) All payments and reimbursements made in the ordinary course by any
third party in the name of or to the Seller in connection with or arising out of
the Purchased Assets or the Assumed Liabilities, received after the Closing Time
shall be held by the Seller in trust for the benefit of the Buyer and,
immediately upon receipt by the Seller of any such payment or reimbursement, the
Seller shall pay over to the Buyer the amount of such payment or reimbursement
without right of set-off.
(b) All payments and reimbursements made in the ordinary course by any
third party in the name of or to the Buyer in connection with or arising out of
Excluded Assets or the Excluded Liabilities, received after the Closing Time
shall be held by the Buyer in trust for the benefit of the Seller and,
immediately upon receipt by the Buyer of any such payment or reimbursement, the
Buyer shall pay over to the Seller the amount of such payment or reimbursement
without right of set-off.
35
SECTION 7.02. Transfer Taxes. All transfer, documentary, sales, and other
--------------
similar Taxes ("Transfer Taxes") incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the Seller. The Seller
and the Buyer shall cooperate in timely making all filings, returns, reports and
forms as may be required to comply with the provisions of such Transfer Tax
laws.
SECTION 7.03. Access to Former Business Records. For a period of seven (7)
---------------------------------
years after the Closing Time, or until any audits of Seller's tax returns
relating to periods prior to or including the Closing Time are completed,
whichever occurs later, Buyer will retain all business records constituting part
of the Purchased Assets. During such period, Buyer will afford duly authorized
representatives of Seller free and full access to all of such records and will
permit such representatives, at Seller's expense, to make abstracts from, or to
take copies of any of such records, or to obtain temporary possession of any
thereof as may be reasonably required by Seller. For a like period, Seller will
retain all business records related to the RPD Business which constitutes part
of the Excluded Assets. During such period, Seller will afford duly authorized
representatives of Buyer free and full access to all of such records and will
permit such representatives, at Buyer's expense, to make abstracts from, or to
take copies of any of such records, or to obtain temporary possession of any
thereof as may be reasonably required by Buyer.
SECTION 7.04. Access to Former Employees. After the Closing, each of Buyer
--------------------------
and Seller will cooperate with the other, and cause its employees to cooperate
with the other, in furnishing information, evidence, testimony, and other
assistance as may be reasonably requested by the other party in connection with
any action, proceeding, or investigation by a third party relating to the RPD
Business. The party requesting such assistance will pay or reimburse the other
party for all reasonable out-of-pocket expenses incurred by the party providing
such assistance in connection therewith, including, without limitation, all
travel, lodging, and meal expenses.
SECTION 7.05. Inventory. Buyer shall, after the Closing Time, use efforts
---------
consistent with the efforts used by Buyer in the use and sale of its own
inventory, to use or sell the inventory of the RPD Business being sold by Seller
to Buyer hereunder. For purposes of this Section 7.05 all such inventory shall
be deemed to be used or sold to the extent that Buyer uses or sells any
inventory not sold to Buyer hereunder which is substitutable for the inventory
sold to Buyer hereunder except to the extent such substitution is required
because such inventory was at the Closing
36
Time damaged, deteriorated or obsolete. To the extent that all such inventory is
not used or sold or deemed used or sold by Buyer within twelve (12) months after
the Closing Time (such inventory, the "Unsold Inventory"), it shall be
repurchased by Seller as provided in this Section 7.05. Buyer shall furnish
Seller with a schedule of the unsold inventory and such other documents
pertaining thereto as Seller may reasonably request. The repurchase price of the
unsold inventory shall be the amount paid therefore by Buyer at Closing. For
purposes of this Section 7.05 "inventory of the RPD Business" shall mean raw
materials, finished goods and work in process but shall exclude and Seller shall
have no obligation to repurchase supplies, service parts, spare parts, and
recycled materials (including recycled materials purchased pursuant to the
Phoenix contract).
SECTION 7.06. Reimbursement of Certain Costs. If Cambridge reasonably
------------------------------
incurs out-of-pocket expenses in excess of $50,000 as a result of a contractual
obligation to a customer which was assumed by Cambridge under this Agreement to
accept return of, provide refunds for, or to repair, replace, recall or service
any RPD Business product produced by Seller prior to the Closing Time, then
Cambridge shall be entitled to be reimbursed by Seller as follows: 50% of the
next $200,000 of such out-of-pocket expenses and 75% of such out-of-pocket
expenses in excess of $250,000; provided that (a) Cambridge gives Seller prompt
notification at the time it becomes aware that it may have a claim for such
reimbursement, (b) Cambridge provides Seller with such information regarding
such customer claim as Seller may reasonably request, (c) Cambridge permits
Seller to participate in, but not control, the resolution of any such customer
claim, and (d) the out-of-pocket costs incurred by Cambridge as a result of such
customer claim are commercially reasonable in the context of the particular
customer claim and not in respect of any other consideration of Cambridge.
ARTICLE VIII
EMPLOYEE MATTERS
----------------
SECTION 8.01. Salaried Employees. The following shall apply with respect
------------------
to all Employees who are not covered by a Union Contract (the "Salaried
Employees"):
37
(a) Offers of Employment. At or prior to the Closing Time, Buyer will
--------------------
make offers of employment to all Salaried Employees including, without
limitation, any Salaried Employee who is not at work but is on salary
continuation (but not Salaried Employees who are not on salary continuation and
are on education, military, personal, family or short or long term disability
leave at the Closing Time) providing for wages and other terms and conditions
of employment, which are substantially comparable to the terms and conditions on
which such Salaried Employees were employed by Seller immediately prior to the
Closing except that the benefits to be provided to such Salaried Employees shall
be as described in Exhibit C hereto (the "Cambridge Benefits"). In addition,
Buyer shall make such an offer of employment to any Salaried Employee who, at
the Closing Time, is on leave without salary continuation to the extent required
by law and to any such Salaried Employee who, within two years after the Closing
Time gives written notice to Buyer of his or her desire to return to work;
provided that Buyer has a position available for which such Salaried Employee is
qualified and, if such Salaried Employee was on long or short term disability,
such Salaried Employee is fit for work.
(b) Employment.
----------
(i) All Salaried Employees who have accepted at the Closing Time,
or who subsequently accept Buyer's offer of employment with Buyer made pursuant
to Section 8.01(a) (the "Transferred Salaried Employees") will be employed by
Buyer at the time of such acceptance on the terms and conditions of such offers
(with the effect that no period of unemployment shall have occurred with
respect to any such Transferred Salaried Employees) and the employment by
Seller of such Salaried Employees will terminate for all purposes effective as
of the time of such acceptance; provided, however, that any such Salaried
Employee who is not at work but on salary continuation or short or long term
disability at the Closing Time may only accept such offer at such time as he or
she is fit for work and presents himself or herself to Buyer for work. The
Applicable Employment Date (the "Applicable Employment Date") in respect of any
Transferred Salaried Employee is the date such Transferred Salaried Employee
reports to work for Buyer.
(ii) After Buyer has complied with its obligations under this
Section 8.01, nothing in this Section 8.01 shall create any obligation on the
part of Buyer to thereafter continue the employment of any such Employee for any
definite period
38
following the Closing or shall prevent Buyer from changing the terms or
conditions of employment, including employee benefit plans, at any time
following the Closing.
(c) Salaried Pension Plan. Seller currently maintains the "Pension Plan
---------------------
for Salaried Employees of GenCorp Inc. and Certain Subsidiary Companies" (the
"Salaried Pension Plan") which provides certain retirement benefits to eligible
salaried employees of GenCorp, including eligible Transferred Salaried
Employees. With respect to the Salaried Pension Plan the following shall apply:
(i) Buyer will not assume the Salaried Pension Plan or any trust
pertaining thereto or become a sponsor of the Salaried Pension Plan and no
assets of the Salaried Pension Plan will be transferred to Buyer or any plan or
trust maintained by Buyer.
(ii) Seller shall retain all liability to fully perform, pay and
discharge all liabilities under its Salaried Pension Plan.
(iii) Effective as of the Closing, all Salaried Employees will cease
to accrue service credit, any benefits or any other right or entitlement under
the Salaried Pension Plan.
(d) Savings Plan. Seller currently maintains the "GenCorp Retirement
------------
Savings Plan" (the "Savings Plan") which provides certain tax-advantaged savings
opportunities for eligible employees, including eligible Transferred Salaried
Employees. With respect to the Savings Plan, the following will apply:
(i) Buyer will not assume the Seller's Savings Plan or any trust
related thereto nor become a sponsor of the Savings Plan and no assets of the
Savings Plan will be transferred to Buyer or any plan or trust maintained by
Buyer.
(ii) Seller shall retain all liability to fully perform, pay and
discharge all liabilities under its Savings Plan.
(iii) Effective as of the Closing, Buyer will establish or otherwise
make available to Transferred Salaried Employees who are participants in the
Savings Plan as of the Closing a savings plan qualified under Section 401(k) of
the Internal Revenue Code of 1986.
39
(e) Medical Plans. Seller currently maintains the "GenCorp Medical Plan"
-------------
and the "GenCorp Dental Plan" (collectively, the "Medical Plans") providing
medical and dental benefits for eligible active employees of GenCorp and their
respective eligible dependents, including eligible Transferred Salaried
Employees. With respect to the medical and dental benefits for Transferred
Salaried Employees, the following will apply:
(i) Effective as of the Applicable Employment Date, the Transferred
Salaried Employees and eligible dependents will cease to be covered by the
Medical Plans and neither GenCorp nor any of the Medical Plans will be
responsible for medical or dental charges or expenses incurred by or in respect
of such Buyer Salaried Employees or eligible dependents after the Closing.
(ii) Seller will be responsible for medical and dental charges or
expenses incurred by or in respect of such Transferred Employees or Eligible
Dependents for services rendered prior to the Applicable Employment Date.
(iii) Effective as of the Applicable Employment Date, Transferred
Salaried Employees and their eligible dependents will be eligible to participate
in the employee medical and dental plans established and maintained by Buyer as
described in Exhibit C and Buyer or such plans will be responsible for medical
and dental charges or expenses incurred by or in respect of such Transferred
Salaried Employees and eligible dependents after the Applicable Employment Date.
(iv) Effective as of the Applicable Employment Date, Buyer will
waive or cause the medical and dental plans described in Section 8.01(e)(iii) to
waive any pre-existing condition exclusions applicable to the Transferred
Salaried Employees and their eligible dependents that may exist under the
employee medical and dental plans established and maintained by Buyer if such
Transferred Salaried Employee was eligible to participate in Seller's medical
and dental plans at the time employment with Seller terminated.
(v) Effective as of the Applicable Employment Date, Buyer will
provide the Transferred Salaried Employees with equitable credit under the
medical plans described in Section 8.1(e)(iii) for any amounts previously paid
by such Transferred Salaried Employees under the Medical Plans as deductibles or
co-payments during the plan year in which the Closing occurs buy only to the
extent that
40
Seller provides Buyer with information in a form reasonably satisfactory to
Buyer showing amounts credited in respect of Buyer's medical and dental plans as
deductible or co-pays.
(f) Life Insurance Plans. Seller currently maintains employee life
--------------------
insurance benefit plans for eligible active employees of GenCorp, including
eligible Transferred Salaried Employees (the "Active Employee Life Insurance
Plans"). With respect to the Active Employee Life Insurance Plans, the following
will apply:
(i) Effective as of the Closing, the Salaried Employees will
cease to be covered by the Active Employee Life Insurance Plans.
(ii) Effective as of the Closing the Transferred Salaried
Employees will become covered under employee life insurance plans established
and maintained by Buyer as described in Exhibit C.
(iii) Buyer will waive or cause such Buyer life insurance
plans to waive any pre-existing condition exclusions applicable to such
Transferred Salaried Employees that may exist under the employee life insurance
plans established and maintained by Buyer.
(g) Long Term and Short Term Disability Plans. Seller currently
-----------------------------------------
maintains employee long term disability and short term disability plans for
eligible employees of GenCorp, including eligible Transferred Salaried
Employees. With respect to such plans:
(i) Effective as of the Applicable Employment Date, the
Transferred Salaried Employees will cease to be covered by such long term
disability and short term disability plans and will become covered under
employee long term disability and short term disability plans established and
maintained by Buyer as described in Exhibit C.
(ii) Buyer will waive or cause such Buyer disability plans to
waive any pre-existing condition exclusions applicable to such Transferred
Salaried Employees that may exist under the employee long term disability and
short term disability plans established and maintained by Buyer if such employee
was eligible to participate in Seller's long term and short term disability
plans at the time
41
employment with Seller terminated.
(h) Vacation Benefits. Seller currently maintains a vacation plan for
-----------------
eligible employees of GenCorp including eligible Transferred Salaried Employees.
With respect to such vacation plan after the Closing, Buyer shall make available
to each Transferred Salaried Employee accrued but unused vacation time under
Buyer's vacation plan and shall pay each Transferred Salaried Employee for any
vacation accrued but unused under Seller's vacation plan prior to the Closing
when such vacation is taken. In determining the amount of vacation for which a
Transferred Salaried Employee is eligible under Buyer's vacation plant, Buyer
shall give each such Transferred Salaried Employee credit for service with
Seller.
(i) Separation Pay. If Buyer terminates the employment of any Transferred
--------------
Salaried Employee for any reason other than "for cause", within twelve (12)
months after the Closing, then Buyer will provide such terminated Transferred
Salaried Employee with separation pay in an amount equal to one week of pay for
each year of service up to a maximum for eight weeks of pay.
(j) Retiree Medical Plans. Seller shall retain all assets and liabilities
---------------------
relating to Seller's retiree medical plans for Salaried Employees. Seller shall
hold Buyer harmless from any and all claims and/or liabilities to any Salaried
Employee arising under or pursuant to the Seller's retiree medical plan for
Salaried Employees.
SECTION 8.02. Union Employees. At the Closing, Buyer, Seller and the
---------------
Union will execute and deliver the Union Novation Agreements pursuant to which
Buyer will become the employer under the Union Agreement and GenCorp will be
released from its obligations under each Union Agreement.
SECTION 8.03. No Third-Party Claims. No Transferred Salaried Employee nor
---------------------
any spouse, former spouse or beneficiary under any of the Plans, or under any
plan from time to time established by the Buyer for the benefit of the
Transferred Salaried Employees, shall be entitled to assert any claim based on
any of the provisions of this Agreement (including but not limited to this
Article VIII) against either party to this Agreement (or any of its Affiliates).
SECTION 8.04. Workers' Compensation. Notwithstanding Sections 2.03 and
---------------------
2.04, Seller shall be liable for any workers' compensation claim relating to an
42
occurrence prior to Closing Time and Buyer shall be liable for any workers'
compensation claim relating to an occurrence after the Closing Time. If a
workers' compensation claim arises in connection with a "continuing" occurrence
before and after the Closing, the liability of Buyer and Seller for such claim
shall be determined by Applicable Law or in the absence of such Applicable Law
on an equitable basis.
SECTION 8.05. Plan Payments. Seller will with respect to each Transferred
-------------
Salaried Employee pay all costs, expenses, benefits and claims incurred prior
to the Applicable Employment Date in respect of such Transferred Salaried
Employee under its benefit plans and will pay all accrued payroll up to the
Closing Time.
ARTICLE IX
SURVIVAL; INDEMNIFICATION
-------------------------
SECTION 9.01. Survival of Representations and Warranties.
------------------------------------------
(a) The representations and warranties set forth in Article III shall
survive the Closing for a period of 540 days after the Closing Time, except that
the representations and warranties contained in Section 3.18 shall survive for a
period of three years after the Closing Time and the representations and
warranties contained in Sections 3.01, 3.02, 3.04(a) shall survive indefinitely.
(b) The representations and warranties set forth in Article IV shall
survive the Closing for the greater of (i) a period of 540 days after the
Closing Time or (ii) the period during which all or any portion of the
Subordinated Note remains outstanding, except that the representations and
warranties contained in Sections 4.01, 4.02, 4.03, 4.04, and 4.06(a) shall
survive indefinitely.
(c) Upon the expiration of the survival period of a representation and
warranty as described in Section 9.01(a) or (b) such representation and warranty
shall expire and terminate and there shall be no liability or obligation
whatsoever in respect thereof whether such liability has accrued prior to or
will accrue after the expiration of such representations and warranties unless
prior to the expiration
43
thereof an Indemnification Claim is made with respect thereto. The
representations and warranties referred to in Sections 9.01(a) and (b) are, to
the extent and so long as they survive the Closing, referred to as the
"Surviving Representations".
SECTION 9.02. Seller's Agreement To Indemnify. Subject always to
-------------------------------
Sections 9.04, 9.05, 9.06 and 9.07 the Seller shall indemnify Cambridge in
respect of any and all Damages incurred by Buyer as a result of the following:
(a) any inaccuracy or misrepresentation in or breach of any
Surviving Representation made by the Seller in this Agreement;
(b) any breach or failure to perform by the Seller after the closing
Time of any of its covenants contained in this Agreement; or
(c) any Third Party Claim against Buyer resulting from the failure
of Seller to perform, pay or discharge any Excluding Liability.
SECTION 9.03. Buyer's Agreement To Indemnify. Subject always to Sections
------------------------------
9.04, 9.05, 9.06 and 9.07 each Buyer jointly and severally shall indemnify
Seller in respect of any and all Damages incurred by Seller as a result of the
following:
(a) any inaccuracy or misrepresentation in or breach of any
Surviving Representation made by a Buyer in this Agreement;
(b) any breach or failure to perform by a Buyer after the Closing
Time of any covenants contained in this Agreement; or
(c) a Third Party Claim against Seller resulting from the failure of
a Buyer to perform, pay or discharge any Assumed Liability.
SECTION 9.04. Indemnification Limits; Exclusive Remedy. Notwithstanding
----------------------------------------
any other provisions of this Agreement:
(a) No Buyer shall be entitled to indemnification pursuant to this
Article IX for any damages under Section 9.02(a) unless and to the extent (y)
Damages incurred with respect to a given instance exceed $10,000 and (z) the
amount by
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which Damages for all such instances in excess of such amount exceed $500,000.
(b) Neither party to this Agreement shall be entitled to indemnification
pursuant to this Article IX for any Damages under Sections 9.02(a) or 9.03(a),
unless the party seeking such indemnification shall make its claim therefor on
or prior to the date on which the relevant representation or warranty shall
expire pursuant to Section 9.01.
(c) In no event will Seller be liable under Section 9.02(a) for any
Damages or any portion of any Damages in excess of $10,000,000. So long as all
or any portion of the Subordinated Note is outstanding, the first remedy of
Buyer for any breach by Seller of any of its representation and warranties
contained herein shall be to, after complying with this Article IX, including
without limitation, Section 9.04(a), not pay amounts owing under the
Subordinated Note.
(d) In no event will any party be liable to any other party under this
Agreement for punitive, exemplary, special or consequential damages.
(e) Each party hereto acknowledges and agrees that, with respect to any
claim by a party hereto against the other party hereto which arises out of
breach of any of the representations, warranties, covenants or agreements of the
Seller or a Buyer herein, the indemnification remedy set forth in this Article
IX shall be the sole and exclusive remedy of the parties with respect thereto.
(f) In connection with any Direct Claim brought by one party against the
other party to enforce this Agreement, to the extent that a party prevails in
prosecuting or defending such Direct Claim such party shall be entitled to be
reimbursed by the other party for all reasonably and proximately incurred
out-of-pocket costs, expenses and attorneys' fees incurred by it in respect of
matters on which it prevailed and all costs and expenses incurred in connection
therewith by the non-prevailing party as to matters on which it did not prevail
shall not be included within and shall be excluded from any Damages incurred by
such non-prevailing party.
(g) Neither party shall have any obligation to indemnify the other party
in respect of any Third Party Claim asserted by any person who is not an
Independent Party.
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(h) If a party has knowledge of an Indemnification Claim at the Closing
Time, such party shall be deemed to have waived such Indemnification Claim and
the other party shall have no liability therefor.
(i) All Damages shall be computed net of (i) Tax benefits actually
realized therefrom to a party, and (ii) the amount of any insurance benefits
actually collected or collectible with respect thereto which reduces the Damages
that would otherwise be sustained, each party covenanting to pursue such tax
benefits and insurance coverage in good faith.
(j) An Indemnitor may not assert any offset or similar right in respect of
its obligations under this Agreement based upon any actual or alleged breach of
any representation, warranty or covenant contained in this Agreement or any
other actual or alleged liability or obligation of the Indemnitee to the
Indemnitor; provided, however, that the inability to assert any offset or
similar right pursuant to this sentence will not of itself result in a waiver
of any such actual or alleged breach of this Agreement, which may, subject to
this Article IX, be asserted pursuant to this Article IX.
(k) Except for any Environmental Claim, to the extent that the physical
condition of any Purchased Asset is not in compliance with Applicable Law at the
Closing Time such physical condition shall not be an Excluded Liability;
provided that nothing in Section 9.04(k) shall in any way limit Seller's right
to make an Indemnification Claim under Section 9.02(a) with respect to such
physical condition.
SECTION 9.05. Procedure for Third Party Claims. The rights and
--------------------------------
obligations of the Indemnitee and Indemnitor with respect to Indemnification
Claims arising out of a Third Party Claim shall be subject to the following
conditions:
(a) If a party receives notice of the assertion of any Third Party Claim
in respect of which it intends to make an Indemnification Claim, the Indemnitee
shall promptly provide written notice (an "Indemnification Notice") of such
assertion to the Indemnitor; provided that failure of the Indemnitee to give the
Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of
any of its obligations hereunder except to the extent the Indemnitor is
prejudiced by such failure. The Indemnification Notice shall describe in
reasonable detail the nature of the Third Party Claim, the basis for an
Indemnification Claim and shall be
46
accompanied by copies of papers and documents which have been served upon the
Indemnitee and such other documents and information as may be appropriate to an
understanding of such Third Party Claim and the liability of the Indemnitor to
indemnify the Indemnitee hereunder. Except as required by law, the Indemnitee
shall not answer or take any other action in respect of such Third Party Claim
which may prejudice the defense thereof unless and until Indemnitor has been
given the opportunity to assume the defense thereof under this Section 9.05 and
refused to do so. If Indemnitee takes any such action which does prejudice the
defense of any such Third Party Claim then Indemnitee shall be liable to
Indemnitor to the extent of such prejudice.
(b) Upon receipt of an Indemnification Notice, the Indemnitor shall have
the right but not the obligation to promptly assume and take exclusive control
of the defense, negotiation and/or settlement of such Third Party Claim. The
assumption of the defense by Indemnitor of a Third Party Claim shall not
prejudice the right of the Indemnitor to recover Damages from the Indemnitee
with respect thereto. If a party is defending, negotiating or settling a Third
Party Claim for which the other party may be liable, then such party shall at
all times do so in good faith as if it were ultimately liable for all Damages
resulting therefrom and shall not settle such Third Party Claim except on terms
which are commercially reasonable measured in the context of the matter settled
and not in respect of any other consideration of the settling party.
(c) If the Indemnitor does not, within twenty days after receipt of an
Indemnification Notice, take over the defense of such Third Party Claim then the
parties agree that the Indemnitee may join the Indemnitor in any action, claim
or proceeding brought by the third party asserting such Third Party Claim as to
which any right of indemnity created by this Agreement would or might apply, for
the purpose of enforcing any right of indemnity granted to such Indemnified
Party pursuant to this Agreement.
(d) If the Indemnitor has assumed the defense of a Third Party Claim then
the Indemnitee shall not compromise or settle such Third Party Claim; provided,
however, that the Indemnitee shall have the right to settle at its sole cost and
expense any Third Party Claim at any time if the Indemnitee waives its right to
recover any Damages therefor from the Indemnitor.
47
(e) The party controlling the defense of a Third Party Claim shall keep
the Indemnitee or Indemnitor, as the case may be, reasonably informed at all
stages of the defense of such Third Party Claim. The party not controlling the
defense of any such Third Party Claim shall have the right, at its sole cost and
expense, to participate in, but not control, the defense of any such Third Party
Claim. Each party shall reasonably cooperate with the other in the defense,
negotiation and/or settlement of any such Third Party Claim. In connection with
any defense of a Third Party Claim undertaken by the Indemnitor, the Indemnitee
shall provide Indemnitor, its counsel, accountants and other representatives
with reasonable access to relevant properties, contracts, books and records and
make available such personnel of the Indemnitee as the Indemnitor may
reasonably request.
(f) If either party receives an offer to settle such Third Party Claim,
it shall promptly present such offer to the other party. If the Indemnitor is
willing to accept and perform all of the terms of such settlement offer and the
Indemnitee refuses to accept such settlement offer; then (1) the Indemnitor's
----
liability to the Indemnitee hereunder with respect to such Third party Claim
shall not exceed the amount of money and the performance obligations proposed to
be paid pursuant to such settlement offer, and, (2) if the Indemnitor has
assumed the defense of such Third Party Claim, then the Indemnitor may, if it so
elects, tender the defense thereof to the Indemnitee by paying to Indemnitee the
amount of money proposed to be paid in such settlement offer and irrevocably
accepting any non-monetary performance obligations, in which case the Indemnitor
shall have no further liability to the Indemnitee hereunder with respect to such
Third Party Claim and the Indemnitee shall have sole responsibility for the
future defense of such Third Party Claim and for any and all liabilities,
damages, claims, costs, and expenses (including attorneys' fees) resulting
therefrom.
SECTION 9.06. Procedure for Direct Claims. The rights and obligations of
---------------------------
Indemnitee and Indemnitors with respect to Indemnification Claims resulting from
or arising out of Direct Claims shall be subject to the following conditions: A
party having an Indemnification Claim resulting from or arising out of a Direct
Claim shall give prompt written notice to Indemnitor (an "Indemnification
Notice") specifying in reasonable detail each provision of this Agreement under
which the Indemnification Claim is made and the nature and amount of the
Indemnification Claim asserted; provided that failure of the Indemnitee to give
the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor
of any of its
48
obligations hereunder except to the extent the Indemnitor is prejudiced by such
failure. If the Indemnitor, within 30 days after the receipt of notice by
Indemnitee, shall not give written notice to Indemnitee accepting in its
entirety such Indemnification Claim, such Indemnification Claim shall be deemed
rejected by the Indemnitor and the parties may pursue such remedies as are
provided for by this Agreement.
SECTION 9.07 Environmental Claims. All Environmental Claims shall be
--------------------
subject to the provisions of Section 9.05 and shall, in addition, also be
subject to the following:
(a) Seller shall have the right to control any negotiations with any
Independent Party or Governmental Authority regarding any investigation,
remediation or monitoring of any Environmental Condition (collectively, a
"Response") including, without limitation, the manner and extent to which any
Response is implemented, and any Response shall be conducted under its exclusive
direction and its sole cost and expense; provided that Cambridge shall have the
right, at its expense, to participate in any such negotiations and Landlord
shall keep Cambridge reasonably informed regarding any such negotiations.
(b) Cambridge shall use its reasonable good faith efforts to cooperate with
Seller in all matters relating to any Seller Response. Seller shall reimburse
Cambridge for its reasonable out-of-pocket expenses incurred in providing such
cooperation. During the course of any Seller Response, Cambridge shall and
hereby does, grant to Seller, its agents, employees, contractors and
consultants, all access to the Shelbyville, Shadeland and Rushville Facilities
as is reasonably necessary to perform any Seller Response. Such access shall
include use of utilities at Seller's expense and reasonable office, parking and
storage space.
(c) Cambridge shall allow Seller to conduct sampling and to install,
operate and maintain any remediation and monitoring devices at, on or under the
Shadeland, Shelbyville or Rushville Facility, including, but not limited to,
soil removal equipment, monitoring xxxxx and groundwater recovery and treatment
systems, that are required by any Governmental Authority or that Seller
reasonably determines are necessary to perform Seller's Response; provided that
such actions shall not unreasonably disrupt Cambridge operations.
49
(d) Seller shall implement any required Response in a manner which does
not unreasonably interfere with Cambridge's operations.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Expenses. Except as otherwise provided in this Agreement,
--------
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such cost
or expense.
SECTION 10.02. Bulk Transfer Laws. Notwithstanding any other provision of
------------------
this Agreement, the Buyer hereby waives compliance by the Seller with the
provisions of any so-called bulk transfer law of any jurisdiction in connection
with the transactions contemplated hereby. Seller hereby indemnifies and agrees
to hold Buyer harmless from and against any and all liabilities, losses,
damages, costs and expenses, including reasonable counsel fees, reasonably and
proximately incurred or sustained by Buyer due to such non-compliance.
SECTION 10.03. Assignment. No party hereto shall transfer or assign, or
----------
grant or permit to exist any lien on, this Agreement or any of its rights or
obligations hereunder (by operation of law or otherwise) without the prior
written consent of the other party hereto (which consent may be withheld in such
other party's sole discretion), and any such purported transfer or assignment
without such consent shall be void and of no force of effect.
SECTION 10.04. Severability. If any provision of this Agreement or the
------------
application of any such provision is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or invalidate or render unenforceable such
provision in any other jurisdiction. In the event that any provision of this
Agreement shall be finally determined by a court of competent jurisdiction to be
unenforceable such court shall have jurisdiction to reform this Agreement so
that it is enforceable to the maximum extent permitted by law and the parties
shall abide by such court's
50
determination.
SECTION 10.05. Amendment and Waiver. No amendment to this Agreement shall
--------------------
be effective unless it shall be in writing and signed by each party thereto.
Any failure of a party to comply with any obligation, covenant, agreement or
condition contained in this Agreement may be waived by the party entitled to the
benefits thereof only by a written instrument duly executed and delivered by the
party granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure of compliance.
SECTION 10.06. Parties in Interest: Limitation on Rights of Others. This
---------------------------------------------------
Agreement shall be binding upon and inure to the benefit of the parties thereto
and their permitted assigns. Nothing in this Agreement, whether express or
implied, shall give or be construed to give any person (other than the parties
thereto and their permitted assigns) any legal or equitable right, remedy or
claim under or in respect of this Agreement, unless such person is expressly
stated in this Agreement to be entitled to any such right, remedy or claim.
SECTION 10.07. Counterparts; Effectiveness. This Agreement (a) may be
---------------------------
executed by the parties thereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same contract and (b) shall not become
effective until one or more counterparts have been executed by each party
thereto and delivered to the other parties thereto.
SECTION 10.08. Entire Agreement. This Agreement together with any exhibits,
----------------
schedules, appendices and attachments thereto, constitute the entire agreement
of the parties with respect to the subject matter thereof and supersede all
prior written and oral agreements and understandings with respect to such
subject matter including, without limitation, the Letter of Intent between
Seller and Buyer dated February 9, 1996 and the Confidentiality Agreement
between Seller and Buyer dated November 9, 1995.
SECTION 10.09. Governing Law. This Agreement shall in all respects be
-------------
governed by and construed in accordance with the internal laws of the State of
Ohio
51
applicable to agreements made and to be performed entirely within such State,
without regard to the conflict of laws principles of such State.
SECTION 10.10 Notices. All notices and other communications to be given
-------
to any party under this Agreement shall be in writing and any notice shall be
deemed given when delivered by hand, courier or overnight delivery service or
three days after being mailed by certified or registered mail, return receipt
requested, with appropriate postage prepaid, or when received in the form of a
telegram or facsimile, and shall be directed to the address or facsimile number
of such party specified below (or at such other address or facsimile number as
such party shall designate by like notice):
(a) If to a Buyer: Cambridge Industries, Inc.
000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attn: Chairman of the Board
With a copy to: Jaffe, Raitt, Heuer & Xxxxx
Xxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
(b) If to the Seller: GenCorp Inc.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: Chief Financial Officer
SECTION 10.11 Interpretation. It is acknowledged by the parties that
--------------
this Agreement has undergone several drafts with the negotiated suggestions of
52
each and, therefore, no presumptions shall arise favoring either party by virtue
of the authorship of any provision of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
CAMBRIDGE INDUSTRIES, INC. GENCORP INC.
By: /s/ X. X. Xxxx By: /s/ X. X. Xxxxxxx
-------------------------- ---------------------------
Name: X. X. Xxxx Name: X. X. Xxxxxxx
------------------------ -------------------------
Title: Vice President Title: Senior Vice President
----------------------- ------------------------
and Chief Financial Officer
------------------------------
CAMBRIDGE INDUSTRIES HOLDINGS, INC.
By: /s/ X. X. Xxxx
--------------------------
Name: X. X. Xxxx
------------------------
Title: Vice President
-----------------------
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