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EXHIBIT 10.6
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is made and entered
into as of the 1st day of December, 1992, by and among Universal Partners,
Inc., a Louisiana corporation ("Universal"), XxXxxxxxx Incorporated, a Delaware
corporation ("McDermott"), and Universal Fabricators Incorporated, a Delaware
close corporation (the "Company").
W I T N E S E T H:
WHEREAS, Universal and McDermott are or have both been engaged in the
fabrication and assembly of jackets, decks, topside facilities, quarters
buildings, drilling rigs, and equipment for installation and use off-shore in
the production, processing and storage of oil and gas and boats and barges at
their respective facilities in New Iberia, Louisiana;
WHEREAS, on November 6, 1992, Universal and McDermott caused the
incorporation of the Company in the State of Delaware as a close corporation
and have subscribed to fifty-one (51%) and forty-nine (49%) percent,
respectively, of the total authorized and to be issued share capital of the
Company;
WHEREAS, upon the terms and subject to the conditions set forth
herein, Universal and McDermott desire to contribute the Universal Contributed
Assets and the McDermott Contributed Assets in exchange for the issuance by the
Company of share certificates representing fifty-one (51%) and forty-nine (49%)
percent, respectively, of the total authorized and issued share capital of the
Company; and
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WHEREAS, upon the terms and subject to the conditions set forth
herein, the Company has agreed to issue share certificates at the Closing
representing fifty- one (51%) and forty-nine (49%) percent, respectively, of
the total authorized and issued share capital of the Company to Universal and
McDermott, respectively, in exchange for the contribution of the Universal
Contributed Assets and the McDermott Contributed Assets;
NOW, THEREFORE, in consideration of the premises and promises herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties represent, warrant, covenant and agree as follows:
ARTICLE I
Contribution of Assets
1.1 Universal Contribution. Upon the terms and subject to the
conditions set forth herein, at the Closing, Universal agrees to assign,
convey, transfer and deliver to the Company all of its right, title and
interest in, to or arising from the Universal Contributed Assets free and clear
of all Liens except for Permitted Liens in exchange for Five Hundred Ten (510)
of the Company's Class "A" common shares of par value $1.00 each.
1.2 Universal Contributed Assets. As used herein, the term
"Universal Contributed Assets" shall mean all of the assets, properties, rights
and claims of Universal used in, relating to or arising from the operation of
its New Iberia, Louisiana facility as the same shall exist as of the Effective
Time including the following:
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(a) Cash in the amount of One Million Two Hundred Thousand
($1,200,000.00) Dollars and a Promissory Note due not later
than One Hundred Twenty (120) days after the Closing Date in
the amount of One Million Two Hundred ($1,200,000.00) Dollars;
(b) All plant, property and equipment, whether owned or leased,
including all land, buildings, structures, easements,
appurtenances and privileges relating thereto, and all
leaseholds, leasehold improvements, fixtures and other
appurtenances and options, including options to purchase and
renew or other rights thereunder, all vehicles, machinery,
tools, furniture, equipment and other tangible personal
property;
(c) All customer files, all lists of customers, suppliers and
vendors, all rights under sales contracts, customer orders,
service agreements, purchase orders, agency and sales
representatives agreements and other similar commitments;
(d) All rights in, to and under any other contract, agreement,
instrument or other documents, including specifically without
limitation all insurance policies applicable to the operation
of the New Iberia, Louisiana facility and the business
conducted by Universal thereat, and all leases of real or
personal property;
(e) All documents and records relating to the Universal
Contributed Assets or the operations, products and services of
the New Iberia
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facility and employment and personnel records for all
employees of the New Iberia facility;
(f) All accounting books, records, ledgers and electronic data
processing materials;
(g) All rights under agreements with employees of the New Iberia
facility concerning non-competition, confidentiality or the
assignment of inventions;
(h) All permits, licenses, franchises, product registrations,
filings, authorizations, approvals and indicia of authority
(and pending applications for any thereof) (i) to conduct the
operations of Universal's New Iberia facility and to own,
manufacture, construct, operate and maintain any product,
fixture, facility, equipment, vehicle, machinery or
installation of the New Iberia facility or (ii) to store,
transport, dispose of, market or sell any goods or any
substance (including, without limitation, material classified
as "hazardous materials" or "hazardous substances" or
"hazardous waste") used, handled, produced, disposed of,
marketed or sold in the operation of the New Iberia facility,
as issued by any governmental agency or instrumentality;
(i) All rights arising under any claim or potential claim against
any Person, whether arising under contract rights, subrogation
rights or at law or equity, including, without limitation, all
claims against customers and suppliers;
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(j) All insurance contracts and/or trusts and the assets held
therein, associated with any of the employee benefit plans,
programs, policies or arrangements listed on Schedule 4.19
hereto;
(k) All technical, processing, manufacturing or marketing
information, including new developments, inventions, know-how,
processes, ideas and trade secrets and documentation thereof
and all claims and rights related thereto;
(l) All performance and other bonds, security and other deposits,
and advances maintained for use in the operation of the New
Iberia facility;
(m) All patents, trademarks, copyrights, trade styles, logos and
service marks and all applications and registrations therefor
and licenses thereof, whether foreign or domestic (including
all of Universal's right and interest under transferable
licenses), information systems, programs, software and
documentation thereof and all rights to the tradename
"Universal Fabricators Incorporated " or any variant thereof
and the "goodwill" associated with all of the foregoing; and
(n) All other assets, properties, rights and claims related to the
operation of the New Iberia facility or which arise in or from
the conduct thereof, whether or not carried at value on the
books and financial statements of Universal, and whether in
the possession of Universal or any other Person;
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provided, however, that, notwithstanding the foregoing, the definition of
Universal Contributed Assets shall not include any items defined as Universal
Excluded Assets in Section 1.3 below.
1.3 Universal Excluded Assets. The following Universal Assets
(the "Universal Excluded Assets") shall not be assigned, conveyed, transferred
and delivered to the Company:
(a) Cash in excess of the amount described in Section 1.2(a) and
all accounts and notes receivable;
(b) Universal's shares in Uniscape Inc. and Unisep Inc.;
(c) All claims, rights and causes of action relating to or arising
from Universal Excluded Assets, Excluded Liabilities or
Universal's share of the Shared Liabilities;
(d) All rights, properties and assets of Universal's New Iberia
facility that are transferred or disposed of by Universal
prior to the Effective Time in transaction conducted in the
ordinary course of business;
(e) The real property owned by Universal situated in the Port of
New Iberia, Iberia Parish, Louisiana consisting of 10 acres,
more or less, and all easements, licenses, rights-of-way or
other interests relating to said property;
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(f) The existing Universal insurance loss fund; and
(g) All assets, whether or not used by Universal in the operation
of the New Iberia facility, which are identified in Schedule
1.3(e) hereto, if any.
1.4 McDermott Contribution. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing, McDermott agrees to
assign, convey, transfer and deliver to the Company all of its right, title and
interest in, to or arising from the McDermott Contributed Assets free and clear
of all Liens except for Permitted Liens in exchange for Four Hundred Ninety
(490) of the Company's Class "B" common shares of par value $1.00 each.
1.5 McDermott Contributed Assets. As used herein, the term
"McDermott Contributed Assets" shall mean the following:
(a) The real property owned by McDermott situated in the Port of
New Iberia, Iberia Parish, Louisiana set forth on Schedule
5.6, all of XxXxxxxxx'x right, title and interest in and to
any improvements or fixtures located thereon, and all
easements, licenses, rights-of-way or other interests relating
to said real property;
(b) The vehicles, machinery, tools, furniture, equipment and other
tangible personal property listed on Schedule 5.5 hereto; and
(c) All permits, licenses, franchises, products, registrations,
filings, authorizations, approvals and indicia of authority
(and pending
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applications for any thereof) (i) to conduct the operations of
XxXxxxxxx'x New Iberia facility and to own, manufacture, construct,
operate and maintain any product, fixture, facility, equipment,
vehicle, machinery or installation of the New Iberia facility or (ii)
to store, transport, dispose of, market or sell any goods or any
substance (including, without limitation, material classified as
"hazardous materials" or "hazardous substances" or "hazardous waste")
used, handled, produced, disposed of, marketed or sold in the
operation of the New Iberia facility, as issued by any governmental
agency or instrumentality;
provided, however, that notwithstanding the foregoing, the definition of
McDermott Contributed Assets shall not include any items defined as XxXxxxxxx
Excluded Assets in Section 1.6 below.
1.6 McDermott Excluded Assets. The following McDermott Assets
(the "McDermott Excluded Assets") shall not be assigned, conveyed, transferred
and delivered to the Company:
(a) All of XxXxxxxxx'x right, title and interest in and to any
properties and assets, tangible or intangible, used in or
relating to any of its facilities other than the New Iberia
facility;
(b) XxXxxxxxx'x shares or interests in any subsidiaries,
Affiliates, partnership or joint ventures;
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(c) All claims, rights and causes of action relating to or arising
from the McDermott Excluded Assets, Excluded Liabilities or
XxXxxxxxx'x share of the Shared Liabilities;
(d) All of XxXxxxxxx'x right, title and interest in and to any
real property owned by McDermott situated in the Port of New
Iberia, Iberia Parish, Louisiana not set forth on Schedule
1.5(a), any improvements or fixtures located thereon and all
easements, licenses, rights-of-way or other interests relating
to said real property;
(e) All rights, properties and assets of XxXxxxxxx'x New Iberia
facility that are transferred or disposed of by McDermott
prior to the Effective Time;
(f) All rights to prepaid insurance premiums and rights arising
under or related to insurance policies of McDermott or its
Affiliates covering the New Iberia facility, the McDermott
Contributed Assets or the Assumed Liabilities;
(g) The business records of McDermott associated with or related
to the New Iberia facility to the extent not located thereat
as of the Effective Time;
(h) All of XxXxxxxxx'x right, title and interest in and to any
inventory located at the New Iberia facility; and
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(i) All assets, whether or not used by McDermott in the operation
of the New Iberia facility, which are identified in Schedule
1.6(i) hereto, if any.
ARTICLE II
Assumption of Liabilities and Obligations
2.1 Assumed Liabilities and Obligations. Upon the Closing, the
Company will assume and undertake to pay, perform, and discharge, in accordance
with and subject to their respective terms, the following liabilities and
obligations of Universal and McDermott, as applicable, to the extent, and only
to the extent, incurred or relating to the New Iberia facilities (the "Assumed
Liabilities"):
(a) Subject to Section 8.5 hereof, all liabilities and obligations
under contracts, customer orders, leases, licenses, purchase
orders and other commitments but only to the extent that such
contracts, customer orders, leases, licenses, purchase orders
and other commitments were entered into in the ordinary course
of business and only to the extent of any performance required
thereunder after the Effective Time;
(b) The indebtedness of Universal as owed on the Xxxxxxxx lease in
the principal amount outstanding as of October 31, 1992 of
Fourteen Thousand, Five Hundred Seventy-Four and 40/100
($14,574.40) Dollars;
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(c) Subject to reimbursement by Universal as provided in that
certain Letter Agreement between Universal and McDermott of
even date December 1, 1992 which is by reference incorporated
herein, the liability and obligation of Universal to the
employees listed on Schedule 9.1 for accrued but not yet taken
vacation (including the funding thereof); and
(d) All liabilities and obligations that arise out of or are
related to the Company's operation of the New Iberia
facilities or any other event, act or occurrence that occurs
after the Effective Time.
2.2 Shared Liabilities and Obligations. Upon the Closing, the
following liabilities and obligations relating to the New Iberia facilities, or
the Contributed Assets, shall be shared pro rata between the Company and
Universal or McDermott, as applicable (the "Shared Liabilities"):
(a) With respect to utility charges that relate to billing periods
beginning before the Effective Time and ending after the
Effective Time, the responsibility for payment shall be
prorated between the parties on the basis of the proportional
number of calendar days in the relevant billing period that
the Company, Universal or McDermott, as applicable, owns or
operates the New Iberia facilities;
(b) With respect to rentals payable on leased property included as
part of the Contributed Assets that relate to lease periods
beginning before and ending after the Effective Time the
responsibility for
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payment will be allocated between the parties on the basis of
the proportional number of calendar days that the Company,
Universal or McDermott, as applicable, occupied or used such
leased property during the relevant lease period; and
(c) With respect to ad valorem, property and similar type taxes
for the applicable tax year, the responsibility for payment
will be prorated between the parties on the basis of the
proportional number of calendar days that the Company,
Universal or McDermott, as applicable, owns or operates the
Contributed Assets during the relevant tax year; and
(d) With respect to all sales, use or transfer taxes, and all
similar taxes and charges, relating to or arising out of the
transfers contemplated hereby, Universal and McDermott shall
each pay half.
Subject to the terms above, if a party pays any of the Shared Liabilities for
which another party is entirely or partially responsible hereunder, then the
responsible party will promptly (but in no event later than thirty (30) days
after demand by the paying party) reimburse the paying party for that portion
of the Shared Liabilities for which the responsible party is responsible,
provided that any demand for reimbursement shall be accompanied by appropriate
evidence of payment thereof.
2.3 Excluded Liabilities and Obligations. Except as expressly set
forth in Sections 2.1 and 2.2 above, the Company shall not assume and shall not
be liable or responsible for any debt, obligation or liability of Universal or
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McDermott, as applicable, or any claims against either of them, of any kind,
whether know or unknown, contingent, absolute or otherwise (the "Excluded
Liabilities"), including without limitation the following liabilities and
obligations:
(a) Subject to Section 2.1(a) hereof, related to or arising from
transactions of or with any other business or division of
either Universal or McDermott, as applicable, including
interdivision, intracompany or intercompany payables,
obligations or agreements incurred in connection with the
operation of the New Iberia facilities prior to the Effective
Time;
(b) For taxes of any kind incurred in connection with the
operation of the New Iberia facilities prior to the Effective
Time (except for the Company's share of the taxes referred to
in Section 2.2(c) above), including Federal, state and local
taxes on income, sales and use, worker's compensation taxes,
FICA contributions and profit sharing deductions and all taxes
and charges related to or arising from the transfers
contemplated hereby;
(c) For damage or injury (real or alleged) to person or property
arising from the ownership, possession or use of any product
manufactured, assembled, processed, treated, distributed, sold
or serviced or any service rendered prior to the Effective
Time;
(d) Any liabilities and obligations for any benefit, cost,
expense, penalty or tax arising out of, resulting from, or
relating to (i)
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any employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA")), or any employment agreements or contracts or any
pension, medical or life insurance or other employee plan,
program or agreement to which either Universal or McDermott is
or was a party or sponsor covering employees of the New Iberia
facilities before or after the Effective Time, or any breach
or default by either Universal or McDermott under any of the
foregoing; (ii) any violation before or after the Effective
Time of the provisions of ERISA by either Universal or
McDermott or any of their employees; or (iii) the employment
relationship between either Universal or McDermott and any of
their present or former employees or the termination of any
such employment relationship, including without limitation
severance pay and other similar benefits, if any, and any
claim filed by any employee or former employee of either
Universal or McDermott relating to the employment or
termination of employment of any such employee by Universal or
McDermott, including any claim for wrongful discharge, breach
of contract, unfair labor practice, employment discrimination
or unemployment compensation;
(e) Except as otherwise expressly provided herein, for expenses or
fees incurred by either Universal or McDermott incidental to
the preparation of this Agreement, preparation or delivery of
materials or information requested by either of them or the
Company, and the consummation of the transactions contemplated
hereby, including all counsel and accounting fees;
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(f) Arising out of, resulting from or relating to any violation by
Universal or McDermott, as applicable, prior to the Effective
Time of any regulation, administrative ruling or other order
or decree of any Federal, state or local agency, or any
Federal, state or local act, statute, rule or regulation,
decree or ordinance, whether applicable to the New Iberia
facilities or otherwise;
(g) Except as otherwise expressly provided herein, relating to
indebtedness for borrowed money or accounts payable of
Universal or McDermott, as applicable, or guarantees of the
obligations or liabilities of any other Persons;
(h) Arising from or relating to any contract, customer order,
lease, license, purchase order, permit or other commitment for
which assignment to the Company is provided herein which is
not assignable to the Company without the consent of another
party and to which assignment such other party's consent is
not obtained and no other arrangements have been made to
provide to the Company the benefits intended to be assigned to
the Company under such contract, customer order, lease,
license, purchase order, permit or other commitment;
(i) All liabilities and obligations for workers' compensation
claims, whether pending as of the Effective Time or not,
regardless of when made, that are based on injuries or
conditions that first occurred or existed, or otherwise arose
out of or are attributable in whole or in part to employment
with Universal or McDermott, as applicable, prior to the
Effective Time;
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(j) Subject to Section 2.1(a) hereof, all costs, expenses,
liabilities or obligations due to products sold or services
rendered by Universal or McDermott, as applicable, or any
predecessors prior to the Effective Time resulting from any
litigation, whether threatened or actual, or pending at the
Effective Time or not;
(k) Arising out of, resulting from or relating to (i) the shipment
from the New Iberia facilities for off- site disposal,
treatment, burial or reclamation of radioactive materials,
incinerator residue, sewage, chemical wastes, solid waste,
garbage or other hazardous materials, hazardous substances or
hazardous waste prior to the Effective Time; (ii) the
discharge, emission or release of any hazardous materials,
hazardous substances or hazardous wastes at or from either of
the New Iberia facilities prior to the Effective Time; (iii)
the generation, treatment and storage of hazardous materials,
hazardous substances or hazardous wastes at or from the New
Iberia facilities prior to the Effective Time, and (iv) all
other liabilities and obligations under any Federal, state or
local rule or environmental act, statute, regulation, decree
or ordinance that arose out of or are related to any act or
omission of Universal or McDermott, as applicable, prior to
the Effective Time; and
(l) All liabilities and obligations arising out of, resulting
from, or relating to claims for infringement or other
misappropriation of the intellectual property of any Person by
Universal or McDermott, as applicable, to the Effective Time.
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2.4 Non-Assignable Contracts. In the case of any contract,
customer orders, lease, license, purchase orders, permit or other commitment of
Universal or McDermott, respectively, applicable to the New Iberia facilities
included in Assumed Liabilities or Shared Liabilities which are by their terms,
by virtue of their subject matter or by operation of law not assignable to the
Company without the consent of a Third Party (the "Non-Assignable Contracts"),
Universal and McDermott agree, if they are a party to a Non-Assignable
Contract, to use their best efforts as soon as reasonably practicable after the
execution and delivery of this Agreement to obtain any consents necessary to
convey to the Company such Non-Assignable Contracts or the benefits thereof.
With respect to any such consent that has not been obtained by the Closing
Date, Universal and McDermott agree, if they are a party to a Non-Assignable
Contract, to cooperate in good faith with the Company to enter into any
reasonable arrangement designed to provide the Company with the same economic
and other benefits of any such Non-Assignable Contract as if it had been
assigned on the Closing Date. Such cooperation shall include the enforcement
for the benefit and at the expense of the Company of all rights previously
enjoyed by Universal or McDermott, as applicable, in connection with such
Non-Assignable Contract. Nothing in this Agreement shall be construed as an
attempt or an agreement to assign or cause the assignment of any Non-
Assignable Contract, unless such consent shall have been given, or as to which
all the remedies for the enforcement thereof enjoyed by Universal and
McDermott, as applicable, would not, as a matter of law, pass to the Company as
an incident of the assignments contemplated by this Agreement.
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ARTICLE III
The Closing and Contribution of Assets
3.1 Closing. The contribution of assets and assumption of
liabilities and obligations contemplated by this Agreement (the "Closing")
shall occur at the offices of McDermott, 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxx at 10:00 A.M. on December 1, 1992 or at such other time or
place as may be mutually agreed upon by the parties (the "Closing Date"). Upon
consummation, the Closing shall be deemed to take place as of the close of
business on November 29, 1992 (the Effective Time"). Title to the Contributed
Assets and the risk of loss or damage thereto shall pass to the Company at the
Effective Time.
3.2 Deliveries by Universal and McDermott. At the Closing,
Universal and McDermott shall deliver, as applicable, the following:
(a) A Tradename and Trademark Assignment in substantially the form
attached hereto as Attachment I;
(b) A Trade Secrets and Know-How Assignment in substantially the
form attached hereto as Attachment II;
(c) Vehicles titles and valid assignments thereof for each owned
vehicle included in the Contributed Assets;
(d) A Survey for each parcel of owned or leased real property
included in the Contributed Assets;
(e) A Title Opinion for each parcel of owned or leased real
property included in the Contributed Assets, issued by
Milling, Benson,
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Woodward, Hillyer, Xxxxxxx & Xxxxxx, Attorneys at Law,
addressed to the Company and dated as of the date hereof;
(f) Lease Assignments in substantially the form attached hereto as
Attachment III from each lessor or sublessor of property used
in the conduct of the New Iberia facilities;
(g) Payoff and release letters from creditors of Universal or
McDermott, as applicable, together with UCC-3 termination
statements with respect to financing statements previously
filed against any of the Contributed Assets (other than in
respect of leased personal property as to which the Company is
assuming the obligation to make lease payments after the
Effective Time);
(h) Copies of all consents of Third Parties identified on Schedule
3.2(h) (the "Indispensable Consents") and, to the extent any
Contributed Assets cannot be transferred or assigned to the
Company as of the Effective Time due to failure to obtain any
required Third Party consent or approval, such agreements
designed to secure for the Company the benefit of any such
Contributed Asset as contemplated by Section 2.4;
(i) An environmental site assessment conducted by Xxxxx-XxXxxxxxxx
(Southeast), Inc., showing no conditions affecting the
Contributed Assets, which would require material expenditures
for purpose of compliance with applicable federal, state, and
local statutes, laws, ordinances, orders, codes, rule, and
regulations relating to
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pollution or the protection of the environment, except such
conditions as Universal or XxXxxxxxx, as applicable, shall
have cured; and
(j) Such other instruments or documents as may be necessary or
appropriate for Universal and XxXxxxxxx to carry out the
transactions contemplated hereby.
3.3 Deliveries by the Company. At the Closing, the Company shall
deliver the following:
(a) Share certificates in substantially the form attached hereto
as Attachment IV; and
(b) Such other instruments or documents as may be necessary or
appropriate for the Company to carry out the transactions
contemplated hereby.
3.4 Closing Agreements. At the Closing, the parties shall
execute, acknowledge, and deliver, as appropriate, the following:
(a) A Shareholders' Agreement in substantially the form attached
hereto as Attachment V;
(b) A General Assignment, Xxxx of Sale and Assumption of
Liabilities in substantially the form attached hereto as
Attachment VI;
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(c) Acts of Sale in substantially the form attached hereto as
Attach- ment VII;
(d) A Lease Agreement in substantially the form attached hereto as
Attachment VIII;
(e) An Employment Agreement in substantially the form attached
hereto as Attachment IX;
(f) A Put/Call Agreement in substantially the form attached hereto
as Attachment X;
(g) A Borrowed Servants' Agreement in substantially the form
attached hereto as Attachment XI; and
(h) Such other instruments or documents as may be necessary or
appropriate to carry out the transactions contemplated by this
Agreement.
3.5 Actions Deemed Simultaneous. At the Closing, the transactions
contemplated by this Agreement will be deemed to have occurred simultaneously,
notwithstanding any different order in the execution and delivery of any of the
documents or agreements executed and delivered in connection herewith.
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ARTICLE IV
Representations and Warranties of Universal
Universal represents and warrants to XxXxxxxxx and the Company as
follows:
4.1 Authority. Universal has full legal right, power and
authority, without the consent of any other Person, to execute and deliver this
Agreement and to carry out the transactions contemplated hereby. All
corporate, shareholder and other acts or proceedings required to be taken by
Universal to authorize the execution, delivery and performance of this
Agreement and the transactions contemplated hereby or thereby have been duly
and properly taken.
4.2 Validity. This Agreement has been, and the documents to be
delivered at Closing will be, duly executed and delivered and constitute
lawful, valid and legally binding obligations of Universal, enforceable in
accordance with their respective terms except to the extent that such
enforceability may be limited by bankruptcy, insolvency, or other similar laws
relating to creditors' rights generally and is subject to general principles of
equity, including the discretion of a court in granting equitable remedies.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not result in the creation of any Lien on
any of the Universal Contributed Assets or the acceleration of any indebtedness
or other obligation applicable to Universal and are not prohibited by, do not
violate or conflict with any provision of, and do not constitute a default
under or a breach of (a) the Charter or By-laws of Universal, (b) any contract,
agreement or other instrument to which Universal is a party or by which
Universal or any of the Universal Contributed Assets are bound, (c) any order,
writ, injunction, decree or judgment of any court or governmental agency, or
(d) any law, rule or regulation applicable to Universal, except for violations,
conflicts or defaults that would not, in the aggregate or individually, have a
material adverse effect on the
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Universal Contributed Assets, in the case of clauses (b), (c) and (d) above.
No approval, authorization, consent or other order or action of or filing with
any court, administrative agency or other governmental authority is required
for the execution and deliver by Universal of this Agreement or such other
agreements and instruments or the consummation by Universal of the transactions
contemplated hereby or thereby.
4.3 Due Organization. Universal is a corporation duly organized,
validly existing and in good standing under the laws of the State of Louisiana,
and has full power and authority and all requisite licenses, permits and
franchises to own, lease and operate the Universal Contributed Assets and to
carry on the business of its New Iberia facility as currently conducted.
Universal is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions, domestic and foreign, where failure to be
so licensed or qualified would have a material adverse effect upon the
operation of its New Iberia facility. Schedule 4.3 sets forth an accurate,
correct and complete list of all jurisdictions in which Universal is qualified
to do business in relation to the business of its New Iberia facility.
4.4 Subsidiaries. Universal does not, in relation to the business
of its New Iberia facility, own stock or have any other equity interest in, and
does not control, directly or indirectly, any corporation, association,
partnership, joint venture or other entity and has not had such an ownership or
control relationship with any such entity related to the business of its New
Iberia facility other than as set forth on Schedule 4.4. Schedule 4.4 sets
forth an accurate, correct and complete list of all entities, if any, acquired
by Universal and incorporated in the operations of its New Iberia facility, as
well as businesses previously
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incorporated in the operations of its New Iberia facility which have been
liquidated, sold or otherwise transferred.
4.5 Financial Statements. The financial statements applicable to
the business of Universal's New Iberia facility for the fiscal years ended
March 31, 1991 and March 31, 1992 attached hereto as Schedule 4.5 are in all
material respects (a) in accordance with the books of account and records of
the New Iberia facility, (b) fair presentations of the financial condition and
results of operations of the New Iberia facility as of the dates and for the
periods indicated and (c) prepared in accordance with those accounting
principles used in the operation of the New Iberia facility and applied on a
consistent basis throughout the periods covered thereby.
4.6 Interim Change. Since March 31, 1992 with respect to the
business of the New Iberia facility, there has not been (a) any adverse change
in the financial condition, assets, liabilities, personnel or business of the
New Iberia facility or in its relationships with suppliers, customers, agents,
sales representatives, lessors or others, except changes in the ordinary course
of business; (b) any damage, destruction or loss, whether or not covered by
insurance, adversely affecting the business or assets of the New Iberia
facility; (c) any forgiveness or cancellation of debts or claims, or waiver of
any rights, except in the ordinary course of business; (d) any increase in the
compensation payable by Universal to any of its salaried employees, except in
the ordinary course of business; (e) any work stoppage or labor dispute, except
in the ordinary course of business; (f) any advances to or investments in or
transfers of assets to any other divisions or Affiliates of Universal, except
in the ordinary course of business; (g) any event or condition of any character
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materially adversely affecting the business or assets of the New Iberia
facility; (h) any discharge, satisfaction or payment of any Lien, other than in
the ordinary course of business; or (i) any material change in the credit
practices of the New Iberia facility or in its methods of maintaining books,
accounts or business records, except, in each instance, as disclosed on
Schedule 4.6. Universal has not, in connection with the New Iberia facility,
incurred or become subject to, or agreed to incur or become subject to, any
liability or obligation, contingent or otherwise since March 31, 1992, except
liabilities and obligations in the ordinary course of business or as disclosed
on Schedule 4.5. Since March 31, 1992, Universal has not made any material
decisions affecting the New Iberia facility including (i) changes in agency or
sales representation relationships, inventory levels, management organization
or personnel arrangements with advertising agencies, market research projects,
advertising and promotion budgets or the content of advertisements or working
capital levels (payables, receivables and inventory); (ii) changes in
discretionary costs such as advertising, maintenance and repairs, research and
contracts; (iv) the commencement, conduct or settlement of any litigation; (v)
any capital expenditures or deferral of capital expenditures; (vi) deviation
from plans on sales and profitability; (vii) financial transactions, such as
borrowings, dividends and any intercompany transactions; or (viii) any other
matters affecting the operation of the New Iberia facility, except in the
ordinary course of business or as disclosed on Schedule 4.6.
4.7 Accounts Receivable. All outstanding accounts and notes
receivable included in the Financial Statements attached hereto as part of
Schedule 4.5 or acquired since March 31, 1992 are due and valid claims against
account debtors for goods or services delivered or rendered by the business of
the New Iberia
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26
facility subject to no defenses, offsets or counterclaims, except as reserved
against on the March 31, 1992 Balance Sheet attached hereto as part of Schedule
4.5 or otherwise reserved against in the ordinary course of business since
March 31, 1992 in a manner consistent with prior practice. All such
receivables arose in the ordinary course of business. No such receivables are
subject to prior Lien except for Liens which will be released of record prior
to the Closing. Universal has not incurred any liabilities to customers for
promotional allowances or otherwise, except as will be discharged in the
ordinary course of business. Schedule 4.7 contains an accurate, correct and
complete accounts receivable aging as of September 30, 1992.
4.8 Inventory. All inventories reflected on the March 31, 1992
Balance Sheet included in the Financial Statements attached hereto as part of
Schedule 4.5 or acquired since March 31, 1992 included in the Universal
Contributed Assets are (i) properly valued at the lower of cost or market value
in accordance with accounting principles used in the business of the New Iberia
facility consistently applied; (ii) of good and merchantable quality and
contain no material amounts that are not salable and unusable for the purposes
intended in the ordinary course of the business of the New Iberia facility; and
(iii) at levels adequate and not excessive in relation to the current
circumstances of the business of the New Iberia facility and in accordance with
past inventory stocking practices. All inventories disposed of subsequent to
March 31, 1992 have been disposed of only in the ordinary course of business
and at prices and under terms that are normal and consistent with past
practice.
4.9 Motor Vehicles. Schedule 4.9 contains an accurate, correct
and complete list of all motor vehicles, including boats or aircraft, used in
the
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xxxxxxxx xx xxx Xxx Xxxxxx facility, whether owned or leased. All such
vehicles are properly licensed and registered based on their current use in the
business of the New Iberia facility in accordance with applicable law.
4.10 Insurance. Schedule 4.10 contains an accurate, correct and
complete list and summary description (including the name of the insurer,
coverage, and expiration date) of all binders, policies of insurance or
fidelity bonds maintained by Universal or in which Universal is a named insured
with respect to the New Iberia facility. With respect to the New Iberia
facility (i) all insurance has been issued under valid and enforceable policies
or binders for the benefit of Universal, (ii) all such policies or binders are
in full force and effect, (iii) there are no pending or asserted material
claims against such insurance by Universal, to which the insurers have denied
liability, and (iv) there exist no material claims under such insurance that
have not been properly filed by Universal, except, in each instance, as
disclosed on Schedule 4.10. Schedule 4.10 also sets forth the claims
experience for the last two (2) full fiscal years and the interim period
through the date hereof with respect to the New Iberia facility (both insured
and self-insured).
4.11 Title to Universal Contributed Assets. Universal is the sole
and exclusive legal and equitable owner of all right, title and interest in and
has good and marketable title to all of the Universal Contributed Assets which
Universal purports to own. Except as disclosed on Schedule 4.11, none of the
Universal Contributed Assets which Universal purports to own are subject to (i)
any contract of lease, license or sale, (ii) any Lien, or (iii) any royalty or
commission arrangements, except, in each instance for Permitted Liens.
Attached hereto as Schedule 4.11 is a list as of September 30, 1992, of all
fixed assets
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included in the Universal Contributed Assets which list is accurate, correct
and complete in all material respects.
4.12 Universal Real Property. (a) Schedule 4.12 sets forth an
accurate, correct and complete list of each parcel of real property, owned or
leased, included in the Universal Contributed Assets, including a list of all
written (and to the best of Universal's knowledge all unwritten) contracts and
agreements relating to or affecting such real property or any interest
therein. Universal has delivered to XxXxxxxxx and the Company accurate,
correct and complete copies, in the case of written contracts and agreements,
or summaries, in the case of unwritten contracts and agreements, as applicable.
Universal is the sole and exclusive legal and equitable owner of all right,
title and interest in and has good, marketable and insurable title in fee
simple absolute to, the real property shown on Schedule 4.12 as owned by it and
has valid insurable leasehold estates in the real property shown on Schedule
4.12 as leased by it, and is in possession of said real property, including the
buildings, structures, sidetracks, and improvements situated thereon and
appurtenances thereto, in each case free and clear of all Liens, other than
Permitted Liens. All rents, royalties, and other charges accruing under the
leases of the real property shown on Schedule 4.12 as leased by Universal
through the date of this Agreement have been duly paid other than amounts being
disputed in good faith and Universal enjoys peaceable and undisturbed
possession under all such leases. The leases of the real property shown on
Schedule 4.12 are in full force and effect and are valid, binding and
enforceable in accordance with the respective terms as to Universal and, to the
best of Universal's knowledge, the other parties to any such lease. Universal
is not in default under any such lease and, to the best of Universal's
knowledge, no default or event of default by the other parties to any such
lease, and no
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event that with the giving of notice or passage of time or both, would
constitute a default by any other party to any such lease, has occurred and is
continuing under the terms of any such lease. The consummation of the
transactions contemplated hereby will not constitute a default under any such
lease.
(b) Neither the whole nor any portion of the real property has
been condemned, requisitioned or otherwise taken by any public authority, and
no written notice of any such condemnation, requisition or taking has been
received. To the best of Universal's knowledge, no such condemnation,
requisition or taking is threatened or contemplated. Universal has no
knowledge of any public improvements which may result in special assessments
against or otherwise affecting the real property.
(c) The Universal Contributed Assets are in compliance with all
applicable zoning, building, health, fire, water, use or similar statutes,
ordinances, laws, regulations or codes, except where failure to comply will not
have a material adverse effect on the operations of Universal's New Iberia
facility or the Universal Contributed Assets. The zoning of each parcel of
real property permits the existing improvements and the operation of
Universal's New Iberia facility as presently conducted thereon. Universal has
all easements and rights, including easements for all utilities, services,
roadways, railways and other means of ingress and egress, necessary to operate
its New Iberia facility as presently conducted. The real property as conveyed
and the leases assigned pursuant to this Agreement shall include all rights to
any off-site facilities necessary to ensure compliance in all material respects
with all zoning, building, health, fire, water, use or similar statutes,
ordinances, laws, regulations or codes. To the best of Universal's knowledge,
no fact or condition
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exists which would result in the termination or impairment of access to the
real property included in the Universal Contributed Assets or discontinuation
of necessary sewer, water, electric, gas, telephone or other utilities or
services.
(d) At the Closing, Universal will deliver to the Company any
consents or approvals of any parties required in connection with the assignment
of the leases of the real property shown on Schedule 4.12 to the Company that
are Indispensable Consents.
4.13 Personal Property Leases. Schedule 4.13 contains an accurate,
correct and complete list of all leases of personal property used in the
operation of Universal's New Iberia facility (the "Personal Property Leases").
Universal has delivered to XxXxxxxxx and the Company an accurate, correct and
complete copy of each such Personal Property Lease. With respect to such
Personal Property Leases:
(a) The Personal Property Leases are in full force and effect and
are valid, binding and enforceable in accordance with their
respective terms as to Universal and, to the best of
Universal's knowledge, the other parties thereto;
(b) No amounts payable under any Personal Property Lease are past
due other than amounts being disputed in good faith;
(c) Universal and, to the best of Universal's knowledge, each
other party thereto has complied with all commitments and
obligations on
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31
its part to be performed or observed under each Personal
Property Lease;
(d) Universal has not received any notice of a default, offset or
counterclaim under any Personal Property Lease, or any other
communication calling upon it to comply with any provision of
any Personal Property Lease or asserting noncompliance, and no
event or condition had happened or presently exists as to
Universal or, to the best of Universal's knowledge, any other
party thereto, which constitutes a default or, after notice or
lapse of time or both, would constitute a default under any
Personal Property Lease has occurred and is continuing; and
(e) Universal has good and marketable title to each Personal
Property Lease and there does not now exist any Lien created
or suffered to exist on the leasehold interest created under
any Personal Property Lease other than UCC-1 forms filed by
the Lessor of leased personal property for public notice
purposes. The consummation of the transactions contemplated
hereby will not constitute a default under any Personal
Property Lease; and
(f) At the Closing, Universal will deliver to the Company any
consents or approvals of any parties required in connection
with the assignment of the Personal Property Leases to the
Company that are Indispensable Consents.
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4.14 Condition of Assets. The assets and properties utilized in
the Universal Contributed Assets, whether owned or leased, are in all material
respects in good operating condition and repair (reasonable wear and tear
excepted) and are suitable for the purposes for which they are presently being
used. Such assets and properties conform to all applicable statutes,
ordinances, laws, regulations and codes, except for such variations as do not
impair or interfere with the use of such property and assets for the purposes
for which they are employed, and Universal has not received any written notice
to the contrary. The Universal Contributed Assets include all properties and
assets the ownership, holding or use of which is necessary for the operation of
Universal's New Iberia facility as presently operated.
4.15 Intellectual Property. Schedule 4.15 contains an accurate,
correct and complete list of all patents, trademarks, trademark rights, service
marks, copyrights and applications for any of the foregoing utilized by
Universal in the operation of its New Iberia facility (the "Intellectual
Property"). During the preceding five (5) years, Universal, in its operation
of its New Iberia facility, has not been known by or done business under any
name other than those listed on Schedule 4.15. Schedule 4.15 also contains an
accurate, correct and complete list of all licenses and other agreements
relating to any Intellectual Property. Except as set forth on Schedule 4.15,
none of the Intellectual Property is subject to any extensions, renewals, taxes
or fees due within ninety (90) days after Closing. Except as set forth on
Schedule 4.15, with respect to the Intellectual Property, (a) Universal is the
sole and exclusive owner and has the sole and exclusive right to use the
Intellectual Property; (b) no action, suit, arbitration, or legal,
administrative or other proceeding, or governmental investigation is pending,
or, to the best of Universal's knowledge, threatened,
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which involves any Intellectual Property; (c) none of the Intellectual Property
infringes upon, conflicts with or otherwise violates the rights of others or is
being infringed upon by others, and none is subject to any outstanding order,
decree, judgment, stipulation or change; (d) there are no royalty, commission
or similar arrangements, and no licenses, sublicenses or agreements pertaining
to any of the Intellectual Property; (e) Universal has not received any charge
of interference or infringement of or by the Intellectual Property; (f)
Universal has not agreed to indemnify any person or entity for or against any
infringement of or by the Intellectual Property; (g) Universal has no knowledge
of any patent, invention or application therefor or similar property which
would infringe upon any of the Intellectual Property or adversely affect the
manufacture, distribution or sale of products or services registered under
applicable law; and (h) the Intellectual Property constitutes all such assets,
properties and rights which are necessary to operate Universal's New Iberia
facility as it is presently operated. The conduct of the business of the New
Iberia facility by the Company after the Closing in the manner and geographic
area in which the business of Universal's New Iberia facility is currently
conducted by Universal will not infringe upon any asserted rights of others
with respect to the current trade dress or packaging of any products relating
to the products sold or serviced rendered by Universal at its New Iberia
facility. Universal is not subject to any judgment, order, writ, injunction or
decree of any court or any Federal, state, local or other governmental
department, commission, board, bureau, agency of instrumentality, domestic or
foreign, or any arbitrator, or has entered into or is a party to any contract
which restricts or impairs the use of any Intellectual Property rights.
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4.16 Software and Information Systems. Except as set forth on
Schedule 4.16, Universal has the sole and exclusive right, title and interest
to all electronic data processing systems, information systems, computer
software, programs, program specifications and narrative descriptions, flow
charts and other related material used by Universal at its New Iberia facility
other than any of the foregoing used at Universal's New Iberia facility
pursuant to a commercially available non-exclusive end-user lease or license
agreement (collectively the "Software"). Schedule 4.16 contains an accurate,
correct and complete list of all Software and identifies (i) Software which is
owned by Universal ("Owned Software"); (ii) Software which is licensed to
Universal ("Licensed Software") and (iii) any other Software in which Universal
has any use, possessory or proprietary rights applicable to its New Iberia
facility. Except as set forth on Schedule 4.15, all of the Owned Software and
all related source codes and other documentation pertaining to such Owned
Software is owned solely by Universal and has not been disclosed to any
unaffiliated Person. Except as set forth on Schedule 4.16, all Software and
all related source code and any other documentation pertaining to such Software
owned by or licensed to Universal and all copies thereof are and at the Closing
Date shall be located at Universal's New Iberia facility. Universal has no
knowledge of any violation of trade secret rights or copyrights with respect to
the Software. All pending software systems development projects relating
primarily to Universal's New Iberia facility are described in Schedule 4.16,
together with an identification of the Persons undertaking such projects.
4.17 Customers and Suppliers. Except as disclosed in Schedule
4.17, all sales contracts and orders with customers and suppliers of
Universal's New Iberia facility were entered into by or on behalf of Universal
and were entered into in
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the ordinary course of business for usual quantities and at normal prices. Set
forth on Schedule 4.17 is a list of the ten (10) largest customers and
suppliers of Universal's New Iberia facility, determined on the basis of
revenues from items sold (with respect to customers) or costs or items
purchased (with respect to suppliers) for the fiscal year ended March 31, 1992.
Except as disclosed on such Schedule, Universal does not know and has no reason
to believe that any such customer or supplier will cease to do business with
the Company after, or as a result of, the consummation of the transactions
contemplated hereby. Except as disclosed in Schedule 4.17, Universal does not
know of any fact, condition or event which would adversely affect its
relationship with any customer.
4.18 Employees. (a) Schedule 4.18 contains an accurate, correct
and complete list of all of the current employees of Universal employed by it
in the business conducted at its New Iberia facility, showing current rate of
cash compensation (including bonuses and commissions), date of employment,
summary job descriptions, any employment contracts currently in effect with any
such employees, and any interests of such employees in any incentive
compensation plan of Universal. Except as noted thereon, none of the employees
listed on Schedule 4.18 is eligible for payments that would constitute
"parachute payments" under Section 280G of the Internal Revenue Code of 1986,
as amended (the "Code"). There are no controversies or work stoppages pending,
or to the best of Universal's knowledge, threatened involving any employee or
group of employees. No union organizing or election activities involving any
non-union employees of Universal are in progress or, to the best of Universal's
knowledge threatened.
(b) Universal is in substantial compliance and has not received
notice of noncompliance with any laws relating to the employment of labor,
including
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36
laws relating to occupational safety and health, workers' compensation,
unemployment insurance, affirmative action, wage payment, wrongful termination,
labor relations, and the payment of social security and other taxes. To the
best of Universal's knowledge, except as disclosed in the Schedules hereto,
there is not and will not be any liability of the Company arising out of claims
made or suits brought by employees of Universal, including workers'
compensation claims and any claims or suits under the Worker Adjustment and
Retraining Notification Act ("WARN ACT"), occupational health and safety,
environmental, consumer protection, equal employment, wage and hour, collective
bargaining, arbitration, unemployment insurance, affirmative action, wage
payment, wrongful termination, labor relations matters, claims or suits for
contribution to, or indemnification of, Third Parties for harm, injury,
sickness, disease, death or termination of employment of any person (including
any employee or former employee or any contractor or subcontractor of Universal
or any agent or distributor of Universal, to the extent attributable to an
event occurring or a state of facts existing prior to the Effective Time.
(c) There are no collective bargaining agreements currently in
effect relating to the employees of Universal employed by it in the business
conducted at its New Iberia facility.
4.19 Employee Benefits Plan. Schedule 4.19 lists each "employee
pension benefit plan" as defined in Section 3(2) of ERISA and each "employee
welfare plan" as defined in Section 3(l) of ERISA, under which any current
employee of Universal employed by it in the business conducted at its New
Iberia facility participates. Schedule 4.19 also lists each plan, policy,
arrangement or practice which provides bonus, deferred compensation, incentive
or other
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37
compensation, and any other fringe benefits to any current employee of
Universal employed by it in the business conducted at its New Iberia facility.
Universal has previously delivered to XxXxxxxxx and the Company true and
complete copies of all documents and instruments establishing or constituting
any plan, arrangement, policy or practice listed on Schedule 4.19.
4.20 No Fraudulent Conveyance. Universal is solvent, having assets
which at a fair valuation exceed its liabilities, and Universal is able to meet
its debts as they mature and will not become insolvent as a result of the
transactions contemplated hereby. Universal is not entering into the
transactions contemplated by this Agreement with the intent to hinder, delay or
defraud any Person to which it is indebted. Following consummation of the
transactions contemplated by this Agreement, Universal will have sufficient
capital and property remaining to conduct the businesses in which it will
thereafter be engaged.
4.21 Material Contracts. (a) Schedule 4.21 contains an accurate,
correct and complete list of all contracts, customer orders, lease, licenses,
purchase order and other commitments related to Universal's New Iberia facility
to which Universal is a party or bound, or by which any of the Universal
Contributed Assets are subject or bound, meeting any of the descriptions set
forth below (the "Material Contracts"):
(i) Personal Property Leases, insurance, licenses of Intellectual
Property, employment contracts, employee benefit plans,
Licenses and Permits;
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(ii) Any contract, purchase order or other commitment for capital
expenditures for the purchase of any materials, parts,
supplies or services in excess of $10,000.00 except those
incurred in the ordinary course of business and having a term
of one year or less;
(iii) Any contract, purchase order or other commitment for the
purchase of machinery, equipment or fixtures or any
construction or other similar agreement involving any
expenditure in excess of $10,000;
(iv) Any contract, customer order or other commitment obligating
Universal to sell or deliver any product or service at a price
which does not cover the cost (including labor, materials and
production overhead) plus the customary profit margin
associated with such product or service;
(v) Any instrument evidencing or relating to indebtedness,
obligation or liability for borrowed money, or liability for
the deferred purchase price of property in excess of
$10,000.00 (excluding normal trade payables), or any
instrument guaranteeing or in effect guaranteeing any
indebtedness, obligation or liability, or any obligation to
incur any indebtedness, obligation or liability and all
outstanding standby letters of credit or performance bonds;
(vi) Any joint venture, partnership or other cooperative
arrangement or any other agreement involving a sharing of
profits or involving the business conducted at Universal's New
Iberia facility;
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39
(vii) Distributor, dealer, sales representative, agency, franchise
or advertising contract not terminable without payment or
penalty on sixty (60) days (or less) notice;
(viii) Any deed, lease, agreement or other instrument affecting any
right, title and interest in or to real property;
(ix) Any contract, lease, license, permit or other commitment with
any governmental or any agency or instrumentality thereof;
(x) Any contract, lease, license, purchase order or other
commitment with respect to the discharge or removal of
hazardous materials, hazardous substances, or hazardous
wastes of any nature;
(xi) Licenses, confidentiality or royalty agreements;
(xii) Powers of attorney; and
(xiii) Any other contract, customer order, lease, license, purchase
order or other commitment related to Universal's New Iberia
facility (other than contracts excluded by an express
exception from the descriptions set forth in subsections (i)
through (xii) above) which (A) provides for payment or
performance by either party thereto having an aggregate value
of $25,000.00 or more, (B) is not terminable without payment
or penalty on sixty (60) days (or less) notice, (C) is between
an Affiliate and Universal, or (D) was
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entered into outside of the ordinary course of business
conducted at Universal's New Iberia facility.
All Material Contracts are in full force and effect and, as to Universal and,
to best of Universal's knowledge, the other parties thereto, are valid, binding
and enforceable in accordance with their terms and as to Universal and, to be
best of Universal's knowledge, the other parties thereto, there are no
defaults, offsets, counterclaims or defenses thereunder, and Universal has
received no notice of default, offset counterclaim or defense under any such
Material Contracts. Neither Universal, nor, to the best of Universal's
knowledge, the other party to any Material Contract is in breach of any
provision of, in violation of, or in default under the terms of any Material
Contract, except where such breach, violation or default will not have a
material adverse effect on the business conducted at Universal's New Iberia
facility. No event has occurred, as to Universal and, to the best of
Universal's knowledge, the other party thereto, which is or after the giving of
notice or passage of time or both, will constitute a default under or result in
the breach of any Material Contract by Universal, or, to the best of
Universal's knowledge, by any other party, except where such breach, violation
or default will not have a material adverse effect. Accurate, correct and
complete copies or summaries, as applicable, of each Material Contract have
been delivered or made available to XxXxxxxxx and the Company. Universal has
not received notice that any party to any Material Contract intends to cancel
or terminate such Material Contract or to exercise or not exercise options or
rights under such Material Contract. All liabilities and obligations of
Universal to be paid or performed on or before the Effective Time under each
Material Contract have been, or will have been on the Effective Time, fully
paid or performed.
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(b) Except as listed on Schedule 4.21, there are neither any
completed or in-process contracts, customer orders or other commitments of the
type described in Section 4.21(a)(iv) hereof nor related insurance policies
that are subject to further financial adjustment as a result of contractual
audit rights or other rights of any Person, including any government or any
department, branch or agency thereof.
(c) With respect to all current or previously entered into
contracts, customers orders, leases, licenses, purchase orders or other
commitments imposing an obligation of confidentiality upon Universal, neither
Universal nor any of its officers, employees or agents:
(i) have knowingly disclosed confidential information in
circumstances which could result in a claim from a Third
Party; or
(ii) know of any facts which might result in such a claim; or
(iii) are presently involved in a dispute arising out of such a
claim.
(d) Except as disclosed on Schedule 4.21 hereto, in relation to
backlog or in-process contracts, customer orders, or other commitments with
customers of Universal, each of them:
(i) has a period of less than twelve (12) months of performance
from the Effective Time until its expiration or termination;
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(ii) is capable of being fulfilled or performed on time without
undue or unusual expenditures of money or effort;
(iii) accurately reflects the value of an arms-length basis of the
services or goods in consideration of which any payment or
receipt of funds has been or is to be made; and
(iv) does not involve nor is likely to involve obligations or
liabilities which by reason of that nature or magnitude ought
reasonably to be made known to any intended purchaser of
Universal's New Iberia facility.
4.22 Taxes. (a) Universal has filed, been included in or sent, or
will file, be included in or send, all returns, declarations and reports and
all information returns and statements required to be filed or sent by or with
respect to it in respect of taxes of any kind (including income, excise,
franchise, property, value added, employment, sales and use taxes) and shall be
responsible for all audits, examinations, proceedings and determinations for
any period ending on or before the Effective Time and all taxes due and payable
on or prior to the Effective Time have been or will be paid in full or
adequately reserved for on the books of Universal. There are no tax liens on
any of the Universal Contributed Assets and no basis exists for the imposition
of any such liens except for ad valorem property, real estate and similar type
taxes which are not yet due and payable.
(b) The Company shall be responsible for the payment of all taxes
due and payable after the Effective Time and the filing of all returns,
declarations and
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43
reports and all information returns and statements required to be filed or sent
by or with respect to it in respect of taxes of any kind and shall be
responsible for all audits, examinations, proceedings and determinations for
any period ending after the Effective Time to the extent applicable to the
Universal Contributed Assets.
4.23 Product and Service Warranties. Except as described in
Schedule 4.23, since 1980, no product or service warranty or similar claims
have been made against Universal in connection with the business conducted at
its New Iberia facility.
4.24 Product Liability Claims. Except as set forth in Schedule
4.24, since 1980, Universal has not received notice or information as to any
claim or allegation of personal death or personal injury, property, or economic
damages, any claim for punitive or exemplary damages, any material claim for
contribution or indemnification, or any claim for injunction relief in
connection with any product manufactured, sold or distributed or any service
provided in connection with the business conducted at its New Iberia facility.
4.25 Litigation. Except as set forth in Schedule 4.25, Universal is
not engaged in or a party or, to the best of Universal's knowledge, threatened
with any complaint, charge, suit, action, proceeding, hearing, investigation or
legal, administrative, arbitration or other method of settling disputes or
disagreements or governmental investigation, in connection with the operation
of its New Iberia facility. Universal has not received written notice of any
investigation in connection with the operation of its New Iberia facility
threatened or contemplated by any foreign, Federal, state or local governmental
or regulatory
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authority, which remains unresolved, including those involving the safety of
products, the safe working conditions of employees, employment practices or
policies. Except as set forth in Schedule 4.25, neither Universal, in
connection with the operations of its New Iberia facility, nor any of the
Universal Contributed Assets is subject to any judgment, order, writ,
injunction, stipulation or decree of any court or any Federal, state, local or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or any arbitrator.
4.26 Licenses and Permits. Schedule 4.26 contains an accurate,
correct and complete list of each license, certificate, approval, exemption,
franchise, registration, variance, accreditation, authorization and permit
(collectively the "Licenses and Permits") held by Universal in connection with
the operation of its New Iberia facility, as well as the trade association or
the foreign, Federal, state or local jurisdiction issuing such Licenses and
Permits, and the type and number of such License or Permit, including all
Licenses and Permits held by Universal which pertain to the manufacture,
storage, sale, taxation, transport, export or import of products or any
services provided and which relate to its New Iberia facility. Such Licenses
and Permits are valid and in full force and effect and there are no pending,
or, to the best of Universal's knowledge, threatened proceedings which could
result in the termination, revocation, limitation or impairment of any License
or Permit. Universal has all certificates, licenses, permits, approvals,
franchises, registrations, accreditations and other authorizations as are
necessary or appropriate in order to own and operate its New Iberia facility
and to own, occupy and lease its property, as the New Iberia facility is
currently operated. Universal has not received any written notice from any
governmental authority to the effect that
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any additional licenses or permits are required. Universal has not breached or
defaulted under, nor, to the best of Universal's knowledge is alleged to have
breached or defaulted under, any of the Licenses or Permits, except where such
breach or default will not have a material adverse effect on the business
conducted at its New Iberia facility. Except as discussed in Schedule 4.26, no
violations have been recorded in respect of any such Licenses and Permits.
4.27 Compliance with Law. The Universal Contributed Assets conform
in all respect with all applicable laws, ordinances, codes, licensing
requirements, rules and regulations, except for such variations as do not
materially impair or interfere with the use for which such Universal
Contributed Assets are employed, and Universal has not received any written
notice to the contrary. Universal has complied in all respects with all laws,
ordinances, regulations, licensing requirements, rules, decrees, awards or
orders applicable to the operation of its New Iberia facility, except where
failure to comply will not have a material adverse affect, including those
related to wages, hours, hiring, promotions, retirement, working conditions,
use and occupancy of improvements, non-discrimination, health, safety,
pensions, employee benefits, the production, marketing, sale and distribution
of products, labeling of products, trade regulation, antitrust, warranties and
control of foreign exchange; and there is not and will not be any liability as
of the Effective Time arising from or relating to any violations thereof,
except where such liability will not have a material adverse effect. Universal
has not received any written notice from any Person of any violation of any
law, ordinance, code, rule or regulation or requiring or calling attention to
the necessity of any work, repairs, new construction, installation or
alteration in connection with the Universal Contributed Assets.
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4.28 Environmental Matters. (a) The Universal Contributed Assets
comply in all respects with all federal, state, and local statutes, laws,
ordinances, orders, codes, rules, and regulations relating to pollution or the
protection of the environment, including, without limitation, all laws and
regulations governing the generation, use, collection, treatment, storage,
transportation, recovery, removal, release, discharge or disposal of hazardous
materials, hazardous substances, or hazardous wastes, except for such
variations as do not materially impair or interfere with the use of which
Universal's New Iberia facility and such Universal Contributed Assets are
employed and Universal has not received any notice to the contrary. The
Universal Contributed Assets have not been used by any previous owners and/or
operators or by Universal to treat, store, handle, transfer, process,
transport, discharge, dispose of or otherwise release hazardous materials,
hazardous substances, or hazardous wastes which has caused, is causing or could
by the acts or omissions of Universal or its Affiliates cause contamination to
Universal's New Iberia facility and the Universal Contributed Assets or the
environment. For purposes of this Agreement the terms "hazardous materials",
"hazardous substances" and "hazardous wastes" are materials defined as
"hazardous substances", "hazardous wastes", or "hazardous constituents" in (i)
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. Sections 9601-9675, as amended by the Superfund Amendments and
Reauthorization Act of 1986, and any amendments thereto and regulations
thereunder as in effect on the date hereof; (ii) the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Sections 6901-6991, as amended by the Hazardous
and Solid Waste Amendments of 1984, and any amendments thereto and regulations
thereunder as in effect as of the date hereof; or (iii) to the extent not
inconsistent with the definitions contained in the acts and regulations listed
in (i) and (ii) above, any other federal, state or local
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environmental law or regulation. For purposes of this Agreement, the term
"contamination" shall mean the uncontained presence of hazardous materials,
hazardous substances or hazardous wastes which may require remediation under
any applicable statutes, ordinances, laws, regulations or codes.
(b) The Universal Contributed Assets have not been subject to any
administrative or judicial proceedings pursuant to, and Universal has not
received any notice of any violations by the Universal Contributed Assets of,
any of the statutes, ordinances, laws, regulations or codes described in
Section 4.28(a), and Universal has no knowledge of any facts or circumstances
that could reasonably form the basis of a claim or citation against Universal's
New Iberia facility and the Universal Contributed Assets for a violation of any
such statutes, ordinances, laws, regulations or codes. Universal has no
knowledge of any notification having been filed with regard to a release of
hazardous materials, hazardous substances or hazardous wastes at, from or into
its New Iberia facility.
(c) None of the storage tanks located at Universal's New Iberia
facility (including any such storage tanks previously abandoned or removed)
containing hazardous materials, hazardous wastes, hazardous substances, or
petroleum (including crude oil or any fraction thereof) currently leak or have
in the past leaked. There are no asbestos- containing materials that have been
exposed in or at Universal's New Iberia facility through demolition, renovation
or otherwise. None of the electrical transformers, fluorescent light fixtures
or other equipment included in the Universal Contributed Assets contain
polychlorinated biphenyls.
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4.29 Brokers. Universal has not retained any broker or finder
pursuant to any contract or arrangement in connection with the transactions
contemplated hereby under which such broker or finder could be entitled to a
fee or commission from XxXxxxxxx or the Company.
4.30 Full Disclosure. No representation or warranty of Universal
contained herein or made hereunder and no certificate, schedule, or other
agreement, instrument or document furnished or to be furnished by Universal in
connection with the transactions contemplated hereby contains or will contain
misstatement of material fact, or omits or will omit to state a material fact
required to be stated herein or therein in order to make the statements
contained herein or therein in light of the circumstances under which they were
made not misleading.
ARTICLE V
Representations and Warranties of XxXxxxxxx
XxXxxxxxx represents and warrants to Universal and the Company as
follows:
5.1 Authority. XxXxxxxxx has full legal right, power and
authority, without the consent of any other Person, to execute and deliver this
Agreement and to carry out the transactions contemplated hereby. All corporate
and other acts or proceedings required to be taken by XxXxxxxxx to authorize
the execution, delivery and performance of this Agreement and all transactions
contemplated hereby have been duly and properly taken.
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5.2 Validity. This Agreement has been, and the documents to be
delivered at Closing will be, duly executed and delivered and constitute
lawful, valid and legally binding obligations of XxXxxxxxx, enforceable in
accordance with their respective terms except to the extent that such
enforceability may be limited by bankruptcy, insolvency, or other similar laws
relating to creditors' rights generally and is subject to general principles of
equity, including the discretion of a court in granting equitable remedies.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not result in the creation of any Lien on
any of the XxXxxxxxx Contributed Assets or the acceleration of any indebtedness
or other obligation applicable to XxXxxxxxx and are not prohibited by, do not
violate or conflict with any provision of, and do not constitute a default
under or a breach of (a) the Charter or By-laws of XxXxxxxxx, (b) any contract,
agreement or other instrument to which XxXxxxxxx is a party or by which
XxXxxxxxx or any of the XxXxxxxxx Contributed Assets is bound, (c) any order,
writ, injunction, decree or judgment of any court or governmental agency, or
(d) any law, rule or regulation applicable to XxXxxxxxx, except for violations,
conflicts or defaults that would not, in the aggregate or individually, have a
material adverse effect on the XxXxxxxxx Contributed Assets, in the case of
clauses (b), (c) and (d) above. No approval, authorization, consent or other
order or action of or filing with any court, administrative agency or other
governmental authority is required for the execution and deliver by XxXxxxxxx
of this Agreement or such other agreements and instruments or the consummation
by XxXxxxxxx of the transactions contemplated hereby or thereby.
5.3 Due Organization. XxXxxxxxx is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has
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full power and authority and all requisite licenses, permits and franchises to
own, lease and operate the XxXxxxxxx Contributed Assets and to carry on the
operations of its facility in New Iberia facility as conducted prior to its
recent shutdown. XxXxxxxxx is duly qualified to do business as a foreign
corporation and is in good standing in all jurisdictions, domestics or foreign,
where failure to be so licensed or qualified would have a material adverse
effect upon the XxXxxxxxx Contributed Assets.
5.4 Subsidiaries. XxXxxxxxx does not, in connection with the
business of its New Iberia facility, own stock or have any other equity
interest in, and does not control, directly or indirectly, any corporation,
association, partnership, joint venture or other entity and has not had such an
ownership or control relationship with any such entity related to the business
of its New Iberia facility other than as set forth on Schedule 5.4. Schedule
5.4 sets forth an accurate, correct and complete list of all entities, if any,
acquired by XxXxxxxxx and incorporated in the operations of its New Iberia
facility, as well as businesses previously incorporated in the operations of
its New Iberia facility which have been liquidated, sold or otherwise
transferred.
5.5 Title to XxXxxxxxx Contributed Assets. XxXxxxxxx is the sole
and exclusive legal and equitable owner of all right, title and interest in and
has good and marketable title to all of the XxXxxxxxx Contributed Assets which
XxXxxxxxx purports to own. Except as disclosed on Schedule 5.5, none of the
XxXxxxxxx Contributed Assets which XxXxxxxxx purports to own are subject to (i)
any contract of lease, license or sale, (ii) any Lien, or (iii) any royalty or
commission arrangements, except, in each instance for Permitted Liens.
Attached hereto as Schedule 5.5 is a list as of September 30, 1992, of all
fixed assets
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included in the XxXxxxxxx Contributed Assets which list is accurate, correct
and complete in all material respects.
5.6 XxXxxxxxx Real Property. (a) Schedule 5.6 sets forth an
accurate, correct and complete list of each parcel of real property included in
the XxXxxxxxx Contributed Assets, including a list of all written (and to the
best of XxXxxxxxx'x knowledge all unwritten) contracts and agreements relating
to or affecting such real property or any interest therein. XxXxxxxxx has
delivered to Universal and the Company accurate, correct and complete copies,
in the case of written contracts and agreements, or summaries, in the case of
unwritten contracts and agreements. XxXxxxxxx is the sole and exclusive legal
and equitable owner of all right, title and interest in and has good,
marketable and insurable title in fee simple absolute to the real property
shown on Schedule 5.6 and is in possession of said real property, including the
buildings, structures, sidetracks, and improvements situated thereon and
appurtenances thereto, in each case free and clear of all Liens, other than
Permitted Liens.
(b) Neither the whole nor any portion of the real property has
been condemned, requisitioned or otherwise taken by any public authority, and
no written notice of any such condemnation, requisition or taking has been
received. To the best of XxXxxxxxx'x knowledge, no such condemnation,
requisition or taking is threatened or contemplated. XxXxxxxxx has no
knowledge of any public improvements which may result in special assessments
against or otherwise affecting the real property.
(c) The XxXxxxxxx Contributed Assets are in compliance with all
applicable zoning, building, health, fire, water, use or similar statutes,
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52
ordinances, laws, regulations or codes, except where failure to comply will not
have a material adverse effect on the operations of XxXxxxxxx'x New Iberia
facility or the XxXxxxxxx Contributed Assets. The zoning of each parcel of
real property permits the existing improvements and the operation of
XxXxxxxxx'x New Iberia facility as conducted thereon prior to its recent
shutdowns. XxXxxxxxx has all easements and rights, including easements for all
utilities, services, roadways, railways and other means of ingress and egress,
necessary to operate its New Iberia facility as conducted prior to its recent
shutdown. The real property as conveyed shall include all rights to any
off-site facilities necessary to ensure compliance in all material respects
with all zoning, building, health, fire, water, use or similar statutes,
ordinances, laws, regulations, and codes. To the best of XxXxxxxxx'x
knowledge, no fact or condition exists which would result in the termination or
impairment of access to the real property included in the XxXxxxxxx Contributed
Assets or discontinuation of necessary sewer, water, electric, gas, telephone
or other utilities or services.
5.7 Condition of Assets. The assets and properties included in
the XxXxxxxxx Contributed Assets, whether owned or leased, are in all material
respects in good operating condition and repair (reasonable wear and tear and
damage from Hurricane "Xxxxxx" excepted) and are suitable for the purposes for
which they are presently being used. Such assets and properties conform to all
applicable statutes, ordinances, laws, regulations and codes, except for such
variations as do not impair or interfere with the use of such property and
assets for the purposes for which they were employed prior to their recent
shutdown, and XxXxxxxxx has not received any written notice to the contrary.
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53
5.8 No Fraudulent Conveyance. XxXxxxxxx is solvent, having assets
which at a fair valuation exceed its liabilities, and XxXxxxxxx is able to meet
its debts as they mature and will not become insolvent as a result of the
transactions contemplated hereby. XxXxxxxxx is not entering into the
transactions contemplated by this Agreement with the intent to hinder, delay or
defraud any Person to which it is indebted. Following consummation of the
transactions contemplated by this Agreement, XxXxxxxxx will have sufficient
capital and property remaining to conduct the businesses in which it will
thereafter be engaged.
5.9 Taxes. (a) XxXxxxxxx has filed, been included in or sent, or
will file, be included in or send, all returns, declarations and reports and
all information returns and statements required to be filed or sent by or with
respect to it in respect of taxes of any kind (including income, excise,
franchise, property, value added, employment, sales and use taxes) and shall be
responsible for all audits, examinations, proceedings and determinations for
any period ending on or before the Effective Time and all taxes due and payable
on or prior to the Effective Time have been or will be paid in full or
adequately reserved for on the books of XxXxxxxxx. There are no tax liens on
any of the XxXxxxxxx Contributed Assets and no basis exists for the imposition
of any such liens except for ad valorem property, real estate and similar type
taxes which are not yet due and payable.
(b) The Company shall be responsible for the payment of all taxes
due and payable after the Effective Time and the filing of all returns,
declarations and reports and all information returns and statements required to
be filed or sent by or with respect to it in respect of taxes of any kind and
shall be responsible
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54
for all audits, examinations, proceedings and determinations for any period
ending after the Effective Time to the extent applicable to the XxXxxxxxx
Contributed Assets.
5.10 Litigation. Except as set forth in Schedule 5.10, XxXxxxxxx is
not engaged in or a party or, to the best of XxXxxxxxx'x knowledge, threatened
with any complaint, charge, suit, action, proceeding, hearing, investigation or
legal, administrative, arbitration or other method of settling disputes or
disagreements or governmental investigation, in connection with its New Iberia
facility. XxXxxxxxx has not received written notice of any investigation in
connection with the operation of the business conducted at the New Iberia
facility prior to its recent shutdown threatened or contemplated by any
foreign, Federal, state or local governmental or regulatory authority, which
remains unresolved, including those involving the safety of products, the safe
working conditions of employees, employment practices or policies. Except as
set forth in Schedule 5.10, neither XxXxxxxxx, in connection with its New
Iberia facility, nor any of the XxXxxxxxx Contributed Assets is subject to any
judgment, order, writ, injunction, stipulation or decree of any court or any
Federal, state, local or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, or any arbitrator.
5.11 Licenses and Permits. Schedule 5.11 contains an accurate,
correct and complete list of the Licenses and Permits held by XxXxxxxxx
applicable to the operation of its New Iberia facility, as well as the trade
association or the foreign, Federal, state or local jurisdiction issuing such
Licenses and Permits, and the type and number of such License or Permit,
including all Licenses and Permits held by XxXxxxxxx which pertain to the
manufacture, storage, sale,
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taxation, transport, export or import of products or any services provided and
which relate primarily to the business conducted at its New Iberia facility
prior to its recent shutdown. Such Licenses and Permits are valid and in full
force and effect and there are no pending, or, to the best of XxXxxxxxx'x
knowledge, threatened proceedings which could result in the termination,
revocation, limitation or impairment of any License or Permit. XxXxxxxxx has
all certificates, licenses, permits, approvals, franchises, registrations,
accreditations and other authorizations as are necessary or appropriate to
operate the New Iberia facility in the manner operated prior to its recent
shutdown. XxXxxxxxx has not received any written notice from any governmental
authority to the effect that any additional licenses or permits are required.
XxXxxxxxx has not breached or defaulted under, nor, to the best of XxXxxxxxx'x
knowledge is alleged to have breached or defaulted under, any of the Licenses
or Permits, except where such breach or default would not have a material
adverse effect on the business conducted at the New Iberia facility prior to
its recent shutdown. Except as discussed in Schedule 5.11, no violations have
been recorded in respect of any such Licenses and Permits.
5.12 Compliance with Law. The XxXxxxxxx Contributed Assets conform
in all respect with all applicable laws, ordinances, codes, licensing
requirements, rules and regulations, except for such variations as do not
materially impair or interfere with the use for which such XxXxxxxxx
Contributed Assets are employed, and XxXxxxxxx has not received any written
notice to the contrary. XxXxxxxxx complied in all respects with all laws,
ordinances, regulations, licensing requirements, rules, decrees, awards or
orders applicable to the business or operations of its New Iberia facility
prior to its recent shutdown, except where failure to comply would not have a
material adverse affect, including those
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related to wages, hours, hiring, promotions, retirement, working conditions,
use and occupancy of improvements, non- discrimination, health, safety,
pensions, employee benefits, the production, marketing, sale and distribution
of products, labeling of products, trade regulation, antitrust, warranties and
control of foreign exchange; and there is not and will not be any liability as
of the Effective Time arising from or relating to any violations thereof,
except where such liability will not have a material adverse effect. XxXxxxxxx
has not received any written notice from any Person of any violation of any
law, ordinance, code, rule or regulation or requiring or calling attention to
the necessity of any work, repairs, new construction, installation or
alteration in connection with the XxXxxxxxx Contributed Assets.
5.13 Environmental Matters. (a) The XxXxxxxxx Contributed Assets
comply in all respects with all federal, state, and local statutes, laws,
ordinances, orders, codes, rules, and regulations relating to pollution or the
protection of the environment, including, without limitation, all laws and
regulations governing the generation, use, collection, treatment, storage,
transportation, recovery, removal, release, discharge or disposal of hazardous
materials, hazardous substances, or hazardous wastes, except for such
variations as do not materially impair or interfere with the use of which such
XxXxxxxxx Contributed Assets were employed prior to their recent shutdown and
XxXxxxxxx has not received any written notice to the contrary. The XxXxxxxxx
Contributed Assets have not been used by any previous owners and/or operators
or by XxXxxxxxx to treat, store, handle, transfer, process, transport,
discharge, dispose of or otherwise release hazardous materials, hazardous
substances, or hazardous wastes which has caused, is causing or could by the
acts or omissions of XxXxxxxxx or
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its Affiliates cause contamination to the XxXxxxxxx Contributed Assets or the
environment.
(b) The XxXxxxxxx Contributed Assets have not been subject to any
administrative or judicial proceedings pursuant to, and XxXxxxxxx has not
received any notice of any violations by the XxXxxxxxx Contributed Assets of,
any of the statutes, ordinances, laws, regulations or codes described in
Section 5.13(a), and XxXxxxxxx has no knowledge of any facts or circumstances
that could reasonably form the basis of a claim or citation against the
XxXxxxxxx Contributed Assets for a violation of any such statutes, laws,
ordinances, regulations or codes. XxXxxxxxx has no knowledge of any
notification having been filed with regard to a release of hazardous materials,
hazardous substances or hazardous wastes, at, from or into its New Iberia
facility.
(c) None of the storage tanks located at XxXxxxxxx'x New Iberia
facility (including any such storage tanks previously abandoned or removed)
containing hazardous materials, hazardous wastes, hazardous substances, or
petroleum (including crude oil or any fraction thereof) currently leak or have
in the past leaked. There are no asbestos- containing materials that have been
exposed in or at XxXxxxxxx'x New Iberia facility through demolition, renovation
or otherwise. None of the electrical transformers, fluorescent light fixtures
or other equipment included in the XxXxxxxxx Contributed Assets contain
polychlorinated biphenyls.
5.14 Brokers. XxXxxxxxx has not retained any broker or finder
pursuant to any contract or arrangement in connection with the transactions
contemplated
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hereby under which such broker or finder could be entitled to a fee or
commission from Universal or the Company.
5.15 Full Disclosure. No representation or warranty of XxXxxxxxx
contained herein or made hereunder and no certificate, schedule, or other
agreement, instrument or document furnished by XxXxxxxxx or to be furnished in
connection with the transactions contemplated hereby contains or will contain
misstatement of material fact, or omits or will omit to state a material fact
required to be stated herein or therein in order to make the statements
contained herein or therein in light of the circumstances under which they were
made not misleading.
ARTICLE VI
Representations and Warranties of the Company
The Company hereby represents and warrants to Universal and XxXxxxxxx
as following:
6.1 Authority. The Company has full legal right, power and
authority, without the consent of any other Person, to execute and deliver this
Agreement and to carry out the transactions contemplated hereby. All corporate
and other acts or proceedings required to be taken by the Company to authorize
the execution, delivery and performance of this Agreement and all transactions
contemplated hereby have been duly and properly taken.
6.2 Validity. This Agreement has been, and the documents to be
delivered at Closing will be, duly executed and delivered by the Company and
constitute
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lawful, valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms except to the extent that such
enforceability may be limited by bankruptcy, insolvency, or other similar laws
relating to creditors' rights generally and is subject to general principles of
equity, including the discretion of a court in granting equitable remedies.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not result in the creation of any Lien or
the acceleration of any indebtedness or other obligation applicable to the
Company and not prohibited by, do not violate or conflict with any provision
of, and do not constitute a default under or a breach of (a) the Company's
Charter or By-laws, (b) any contract, agreement or other instrument to which
the Company is a party or by which the Company is bound, (c) any order, writ,
injunction, decree or judgment of any court or governmental agency, or (d) any
law, rule or regulation applicable to the Company, except for violations,
conflicts or defaults that would not, in the aggregate or individually, have a
material adverse effect, in the case of clauses of (b), (c) and (d) above. No
approval, authorization, consent or other order or action of or filing with any
court, administrative agency or other governmental authority is required for
the execution and delivery by the Company of this Agreement or such other
agreements and instruments or the consummation by the Company of the
transactions contemplated hereby or thereby.
6.3 Due Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full power and authority and all requisite licenses, permits
and franchises to own, lease its properties and to carry on the business in
which it is engaged. The Company is duly qualified to do business as a foreign
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corporation and is in good standing in all jurisdictions, domestic or foreign,
where failure to be so licensed or qualified would have a material adverse
effect upon its business or assets.
6.4 Brokers. The Company has not retained any broker or finder
pursuant to any contract or arrangement in connection with the transactions
contemplated hereby under which such broker or finder could be entitled to a
fee or commission from Universal or XxXxxxxxx.
6.5 Litigation. There is no complaint, charge, suit, action,
proceeding, hearing, investigation or legal, administrative, arbitration or
other method of settling disputes or disagreements or governmental
investigation pending or, to the best of the Company's knowledge, threatened
against the Company which, if adversely determined against the Company, might
have an adverse effect upon the Company's ability to execute and deliver this
Agreement or such other agreements and instruments or the consummation by the
Company of the transactions contemplated hereby or thereby.
6.6 Resale Certification. The inventories included in the
Contributed Assets (including raw materials, work-in-progress and finished
goods) will be resold by the Company and not used or consumed (except to the
extent that raw materials and work-in-progress inventory is physically
incorporated as a part of finished goods for resale) by the Company.
6.7 No Activities by the Company. Other than those activities in
connection with its organization and in connection with the execution and
delivery of this Agreement and such other agreements and instruments and the
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consummation of the transactions contemplated hereby and thereby, the Company
has not engaged in any activities or entered into any agreements or incurred
any liabilities or obligations.
ARTICLE VII
Covenants of Universal and XxXxxxxxx
Universal and XxXxxxxxx hereby agrees to keep, perform and fully
discharge the following covenants and agreements.
7.1 Continued Assistance. Following the Closing, Universal and
XxXxxxxxx shall refer to the Company as promptly as practicable any telephone
calls, letters, orders, notices, requests, inquiries and other communications
received by either of them relating to the Contributed Assets. Universal and
XxXxxxxxx shall cooperate in an orderly transfer of the Contributed Assets and
the continuation of the business conducted at the New Iberia facilities by the
Company. From time to time, at the Company's request and without further
consideration, Universal and XxXxxxxxx, as appropriate, shall execute,
acknowledge and deliver such documents, instruments or assurances and take such
other action as the Company may reasonably request to more effectively assign,
convey and transfer any of the Contributed Assets or the Assumed Liabilities
and will assist the Company in the vesting, collection or reduction to
possession of such Contributed Assets or the Assumed Liabilities. Universal
and XxXxxxxxx hereby authorizes the Company from and after the Effective Time
to receive and open all mail and other communications to either of them
received by the Company and to act with respect to such communications in such
manner as the Company may
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elect if such mail and other communications relate to the Contributed Assets,
or, if such mail and other communications do not so relate, to forward the same
promptly to Universal of XxXxxxxxx, as applicable.
7.2 Certain Payments. Following Closing, Universal and XxXxxxxxx
shall pay and fully discharge all amounts owed to employees, all taxes or
amounts withheld from employees, and all sales taxes collected in the operation
of their New Iberia facilities and all liabilities and obligations to customers
and suppliers of their New Iberia facilities which are not Assumed Liabilities
as and when due, and shall otherwise pay, discharge or make adequate provision
for all Excluded Liabilities. Universal shall forward to the Company promptly
after receipt all funds received under accounts and notes receivable to the
extent included in Universal Contributed Assets without offset or counterclaim.
Universal and XxXxxxxxx shall promptly pay and fully discharge any income,
excise or employment taxes arising as a result of the sale, transfer,
conveyance or assignment of the Contributed Assets. Universal and XxXxxxxxx
shall retain responsibility after the Closing Date for all litigation related
to the Contributed Assets pending through the Effective Time. Universal and
XxXxxxxxx shall keep the Company and each other apprised of the status of all
aspects of such litigation which might affect the Contributed Assets or the New
Iberia facilities, either directly or indirectly and shall comply with all
court orders relating directly or indirectly to such litigation. The Company
shall provide reasonable cooperation to Universal and XxXxxxxxx, as applicable,
in handling such litigation, provided, that Universal and XxXxxxxxx, as
appropriate, shall reimburse the Company for its out-of-pocket expenses
incurred in connection with such cooperation. Universal and XxXxxxxxx, as
applicable, shall retain all
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rights to recover moneys due or damages being sought by them under any such
litigation.
7.3 Records and Documents. For five (5) years following the
Closing Date, Universal and XxXxxxxxx shall xxxxx to the Company and its
representatives, at the Company's request upon reasonable notice and during
normal business hours, access to and the right to make copies of those records
and documents related to the New Iberia facilities, possession of which is
retained by either of them as may be necessary or useful in connection with the
Company's conduct of business at the New Iberia facilities after the Closing.
If during such period either of Universal or XxXxxxxxx, elects to dispose of
such records, Universal or XxXxxxxxx, as appropriate, shall first give the
Company sixty (60) days' written notice, during which period the Company shall
have the right to take such records without further consideration.
7.4 Consents. Universal and XxXxxxxxx, as appropriate, shall use
their best efforts to obtain before the Closing all Indispensable Consents and
at the earliest practicable date thereafter all other consents, governmental
authorizations, approvals, estoppel certificates and filings required to be
obtained by them or which may be reasonable necessary to the consummation of
the transactions contemplated by this Agreement or which are reasonably
requested by the Company.
7.5 Transfer of Licenses and Permits and Intellectual Property.
Universal and XxXxxxxxx, as applicable, shall cooperate with the Company, and
shall use its best efforts to transfer, assign and pass to the Company all of
its
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rights under each of the Licenses and Permits and Intellectual Property,
including:
(a) Executing all assignments and other documents that are
necessary to effect transfer or assignment of the Licenses and
Permits and Intellectual Property (except that neither
Universal nor XxXxxxxxx shall not be required to execute any
documents requiring or involving any guarantee or indemnity by
either of them of or in respect to the performance by the
Company of its obligations under or in connection with any of
the Licenses and Permits or the activities so licensed or
permitted after the Closing Date);
(b) Providing the governmental authorities responsible for the
Licenses and Permits and Intellectual Property and the Company
with whatever information and documentation that may be
required in connection with the transfer of the Licenses and
Permits and Intellectual Property;
(c) Complying with its obligations under the Licenses and Permits
and Intellectual Property, and under applicable law relating
thereto prior to the date of transfer, including paying any
renewal, annuity or other fees for maintaining the Licenses
and Permits and Intellectual Property that first become due
and payable prior to the Effective Time;
(d) On, prior to, or subsequent to the Effective Time, remedying
any non-compliance with any of the Licenses and Permits and
Intellectual
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Property, or with applicable law relating thereto, that has
occurred before the Effective Time, where such non-compliance
would have a material adverse effect on the conduct of the
Company's business at the New Iberia facilities or the
Contributed Assets; and
(e) Taking such further actions relating to the Licenses and
Permits and Intellectual Property as the governmental
authorities or the Company may reasonable require.
All internal costs of Universal's and XxXxxxxxx'x compliance with the
obligations imposed under this Section 7.5 shall be borne by Universal or
XxXxxxxxx, as applicable. All license, issuance or transfer fees and similar
fees or charges and all Third Party costs and expenses payable in connection
with the transfer or reissuance of the Licenses and Permits and Intellectual
Property shall be paid by the Company. In the event that any of the Licenses
and Permits and the Intellectual Property have not been approved for transfer
by the Closing Date, the Company may, at its sole option, postpone Closing
until such time as all Licenses and Permits are transferred or reissued in form
and substance acceptable to the Company or until such time as the Company,
Universal and XxXxxxxxx enter into reasonable satisfactory arrangements to
allow the Company to operate the New Iberia facilities in the interim under the
Universal's or XxXxxxxxx'x, as applicable, Licenses and Permits, whichever
first occurs.
7.6 Confidentiality. Following the Closing, Universal and
XxXxxxxxx will not use or disclose to any Third Parties, any trade or business
secrets relating to the New Iberia facilities, provided that, (i) Universal and
XxXxxxxxx may use or disclose any such information which has been publicly
disclosed (other than
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66
by Universal or XxXxxxxxx, as applicable,) after the Effective Time and (ii) to
the extent that Universal or XxXxxxxxx may become legally compelled to disclose
any of such information, may disclose such information if they have used their
best efforts, and shall have afforded the Company the opportunity, to obtain an
appropriate protective order, or other satisfactory assurance of confidential
treatment, for the information required to be disclosed.
7.7 Tax Returns. After the Closing, Universal and XxXxxxxxx, as
applicable, shall cooperate with the Company in connection with the
preparation, execution and filing with the Internal Revenue Service of all
information returns required by Section 1060 of the Code relating to the
allocation of consideration for the Contributed Assets.
7.8 Internal Revenue Code Section 1445. Universal and XxXxxxxxx,
as applicable, shall furnish the Company at the Closing a certificate of
non-foreign status signed by an authorized representative of each of them and
sufficient in form and substance to relieve the Company of all withholding
obligations under Code Section 1445 (26 U.S.C Section 1445).
ARTICLE VIII
Covenants of The Company
The Company hereby agrees to keep, perform and fully discharge the
following covenants and agreements.
8.1 Records and Documents. For five (5) years following the
Closing Date, the Company shall grant to Universal and XxXxxxxxx and their
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representatives, as applicable, at their request upon reasonable notice and
during normal business hours, access to and the right to make copies of those
records and documents related to the New Iberia facilities, possession of which
is transferred to the Company, as may be necessary or useful in connection with
the their business and affairs after the Closing. During such period,
Universal and XxXxxxxxx and their representatives shall be entitled to conduct
interviews with the Company's employees relative to such records and documents.
The Company will, upon the reasonable request of XxXxxxxxx, provide such
information as may be necessary for XxXxxxxxx to comply with applicable
financial reporting requirements of the U.S. Securities and Exchange Commission
and other governmental authorities or agencies and make available such records
and documents acquired hereunder as are necessary to Universal and XxXxxxxxx
and their accountants and other representatives to prepare any tax schedules
and related documents required for the filling by either of them of tax returns
or reports and shall furnish such information in connection therewith or with
any tax examinations or audits as either of them may reasonably request from
time to time. If during such period of thereafter, the Company elects to
dispose of such records, the Company shall first give Universal and XxXxxxxxx,
as applicable, sixty (60) days' written notice during which period Universal
and XxXxxxxxx, as applicable, shall have the right to take such records.
8.2 Continued Assistance. Following the Closing, the Company
shall refer to Universal and XxXxxxxxx, as applicable, as promptly as practical
any telephone calls, letters, orders, notices, requests, inquiries and other
communications received by the Company not relating to the New Iberia
facilities and otherwise relating to Universal and XxXxxxxxx, as applicable.
The Company shall cooperate with Universal or XxXxxxxxx, as applicable, and
provide such assistance as
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Universal or XxXxxxxxx, as applicable, may reasonably request, at Universal's
or XxXxxxxxx'x, as applicable, expenses, in connection with the defense or
prosecution of any claims, actions or investigations arising out of or related
to the operation of the New Iberia facilities prior to the Closing which are
Excluded Liabilities.
8.3 Consents. The Company will cooperate with Universal and
XxXxxxxxx, as applicable, in obtaining the consents, waivers, approvals,
authorizations, and estoppel certificates referred to in Section 7.4 above,
including providing such assurances of future performance by the Company of
obligations and liabilities to be included in the Assumed Liabilities as may be
reasonably requested by the parties entitled to the benefit of such future
performance.
8.4 Certain Payments. Following Closing, the Company shall pay
and fully discharge all of the Assumed Liabilities and the Company's share of
the Shared Liabilities as and when due.
8.5 Warranties. From and after the Effective Time, the Company
agrees to perform the contractual warranty obligations of Universal or
XxXxxxxxx, as applicable, with respect to products and services provided to
customers of the New Iberia facilities prior to the Effective Time, and
Universal or XxXxxxxxx, as applicable, agrees to reimburse Company for the
costs and expenses incurred by Company in such undertaking upon receipt from
Company of a report detailing the warranty work performed and the costs and
expenses associated therewith.
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ARTICLE IX
Employees
9.1 Employment. The Company shall offer comparable positions to
all employees of Universal who are listed on Schedule 9.1. Universal shall use
its best efforts to encourage the employees listed on Schedule 9.1 to continue
their employment until Closing and thereupon to accept and retain employment
with the Company.
9.2 Employee Benefit Plans. With respect to all employee benefit
plans, programs, policies or arrangements of Universal listed on Schedule 4.19,
including any related trusts and the assets held therein, Universal shall,
effective as of the Closing Date, by amendment or otherwise transfer
sponsorship to the Company, who shall adopt and assume and thereafter exercise
all of the rights and obligations of a sponsoring employer of such plans,
programs, policies or arrangements. Employees of Universal listed on Schedule
9.1 shall continue to participate in such plans, policies, programs or
arrangements after the Closing Date, without any interruption in service after
the Closing Date on the same basis as prior to the Closing Date.
ARTICLE X
Survival; Indemnification
10.1 Survival. All covenants, agreements, representations and
warranties made herein by the parties shall survive the Closing and any
investigation made at any time with respect thereto.
10.2 Indemnification by Universal and XxXxxxxxx. Universal and
XxXxxxxxx, as applicable, shall indemnify, defend and hold the Company and any
director, officer, employee or agent thereof, harmless against and in respect
of any Losses
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arising out of, relating to, or resulting from (i) any breach by either of them
of any representation, warranty, covenant or agreement made by either of them
in this Agreement or in connection with the transactions contemplated hereby;
(ii) their failure to pay or satisfy or cause to be paid or satisfied any of
the Assumed Liabilities or their share of the Shared Liabilities when due and
payable; or (iii) the non-performance of any obligation to be performed by
either of them or their Affiliates under this Agreement or in any agreement,
document or instrument executed and delivered pursuant hereto or in connection
with the transactions contemplated hereby.
10.3 Indemnification by the Company . The Company shall indemnify,
defend and hold Universal and XxXxxxxxx, as applicable, and any director,
officer, employee or agent thereof, harmless against and in respect of any
Losses arising out of, relating to, or resulting from (i) any breach by the
Company of any representation, warranty, covenant or agreement made by it in
this Agreement or in connection with the transactions contemplated hereby; (ii)
the Company's failure to pay or satisfy or cause to be paid or satisfied any of
the Assumed Liabilities or Company's share of the Shared Liabilities when due
and payable; (iii) the non-performance of any obligation to be performed by the
Company under this Agreement or in any agreement, document or instrument
executed and delivered pursuant hereto or in connection with the transactions
contemplated hereby; and (iv) drawings and demands against those standby
letters of credit and bonds listed on Schedule 4.21 to the extent that such
drawings are based on acts or omissions of the Company.
10.4 Defense Against Asserted Claims. If any claim is made or
asserted by a Third Party against a party indemnified pursuant to this Article
X (the
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"Indemnified Party"), the Indemnified Party shall, with reasonable promptness
and, in any event, no later than ten (10) days prior to the time the response
to such claim or assertion of liability must be given, given to the other party
or parties, as applicable (the "Indemnifying Party") written notice of the
claim or assertion of liability and request the Indemnifying Party to defend
against the claim. Failure so to notify the Indemnifying Party shall not
relieve the Indemnifying Party unless such failure materially prejudices the
Indemnifying Party's position. The Indemnifying Party shall have the right to
defend against the claim, in which event the Indemnifying Party shall give
written notice to the Indemnified Party of acceptance of the defense of such
claim and the identify of counsel selected by the Indemnifying Party with
respect to such matters. In the event the Indemnifying Party does not accept
the defense of the claim as provided above or in the event that the
Indemnifying Party or its counsel fails to use reasonable care in maintaining
such defense or such defense is having a materially adverse effect on the
Indemnified Party's business, the Indemnified Party, upon written notice to the
Indemnifying Party, shall have the right to employ counsel for such defense at
the expense of the Indemnifying Party. The parties will cooperate with each
other in the defense of any such action and the relevant records and personnel
of each shall be available to the other with respect to such defense. Provided
the Indemnifying Party accepts the defense of the matter, it shall not be
liable for any settlement of any claim or action made without its consent,
which consent shall not be unreasonably withheld.
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ARTICLE XI
Certain Definitions
For purposes of this Agreement, the following terms shall have the
respective meanings as herein set forth:
(a) "Affiliate" shall have the meaning set forth in Rule 12B-2
promulgated under the Securities Exchange Act of 1934, as
amended.
(b) "Best of Knowledge" (or words of similar import) shall mean
that after having conducted a due diligence review in
anticipation of the transactions contemplated by this
Agreement and in reliance on such due diligence review, the
management of a party believe the statement to be true,
accurate and correct in all material respects.
(c) "Contributed Assets" shall mean the Universal Contributed
Assets and the McDermott Contributed Assets.
(d) "Liens" shall mean all mortgages, claims, covenants, charges,
liens, encumbrances, easements, rights- of-way, encroachments,
restrictions, options, subscriptions, warrants, pledges,
calls, commitments, security interests, conditional sales
agreements, title retention agreements, leases and other
restrictions of any kind or character, direct or indirect,
whether accrued, absolute, contingent or otherwise.
(e) "Permitted Liens" shall mean (i) liens for current ad valorem
property, real estate and similar type taxes not yet due and
payable and (ii) those Liens set forth on a Schedule hereto.
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(f) "Person" shall mean an individual, a corporation, a
partnership, an association, a joint venture, a trust or other
entity of any kind, including a governmental or political
subdivision or agency or instrumentality thereof.
(g) "Survey" shall mean a plat of survey of each parcel of real
property included in Contributed Assets prepared by Xxxx X.
Chance & Associates, dated as of the Closing Date and
certified to the parties hereto.
(h) "Third Party" shall mean any Person other than a party to this
Agreement or an Affiliate thereof.
ARTICLE XII
General Provisions
12.1 Amendments and Waiver. No amendment, waiver or consent with
respect to any provision of this Agreement shall in any event be effective,
unless the same shall be in writing and signed by the parties hereto, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
12.2 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person
or sent by registered or certified mail, postage prepaid, or by telecopy as
follows:
(a) If to Universal: Universal Partners, Inc.
X.X. Xxx 00000
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00
Xxxx Xxxx, Xxxx xx Xxx Xxxxxx
New Xxxxxx, Xxxxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
With a copy to: Xxx, Xxxxxxx & Xxxxxxxx
Xxxx Xxxx, Xxxxx 00
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxx, III
Telecopy: (000) 000-0000
(b) If to the McDermott: XxXxxxxxx Incorporated
0000 Xxxxxx Xxxxxx
X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Senior Vice President &
Chief Financial Officer
Telecopy: (000) 000-0000
With a copy to: XxXxxxxxx Incorporated
0000 Xxxxxx Xxxxxx
X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Vice President, Secretary &
General Counsel
Telecopy: (000) 000-0000
If to the Company: Universal Fabricators
Incorporated
X.X. Xxx 00000
Xxxx Xxxx, Xxxx xx Xxx Xxxxxx
New Xxxxxx, Xxxxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
Any party may change its address for receiving notice by written notice given
to the others named above.
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12.3 Expenses. Except as otherwise expressly provided herein, each
party to this Agreement shall pay its own costs and expenses in connection with
the transactions contemplated hereby. McDermott shall pay the costs and
expenses in connection with the Survey and the site assessment of the New
Iberia facilities conducted prior to the date hereof by Xxxxx-XxXxxxxxxx
(Southeast), Inc. Universal agrees to reimburse Three Thousand Five Hundred
($3,500.00) Dollars of XxXxxxxxx'x costs and expenses in connection with the
site assessment. If any action is brought by either party to enforce any
provision of this Agreement, the prevailing party shall be entitled to recover
court costs and reasonable attorneys' fees. The provisions of this Section
shall survive any termination of this Agreement.
12.4 Counterparts. This Agreement may be executed simultaneously
in three (3) or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
12.5 Successors and Assigns. This Agreement shall bind and inure
to the benefit of the parties named herein and their respective successors and
permitted assigns.
12.6 Entire Transaction. This Agreement and the documents referred
to herein contain the entire understanding among the parties with respect to
the transactions contemplated hereby and supersedes all other agreements,
understandings and undertakings among the parties or their Affiliates on the
subject matter hereof except for that certain Letter Agreement dated December
1, 1992 between McDermott and Universal which is by reference incorporated
herein.
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12.7 Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the State of
Louisiana, and the parties hereby irrevocably and unconditionally consent and
submit to the in personam jurisdiction of any court located in Lafayette,
Louisiana having jurisdiction over all matters relating to this Agreement.
Each party agrees that service of process in any action or proceeding hereunder
may be made upon such party by certified mail, return receipt requested to the
address for notice set forth herein. Each party irrevocably waives any
objection it may have to the venue of any action, suit or proceeding brought in
such courts or to the convenience of the forum and each party irrevocably
waives the right to proceed in any other jurisdiction. Final judgment in any
such action, suit or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment, a certified or true copy of which
shall be conclusive evidence of the fact and the amount of any indebtedness or
liability of any party therein described.
12.8 Rules of Construction. References in this Agreement to
sections, schedules and exhibits are to sections of, and schedules and exhibits
to, this Agreement unless otherwise indicated. Words in the singular include
the plural and in the plural include the singular. The word "or" is not
exclusive. The word "including" shall mean including, without limitation. The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
12.9 Announcements. No announcement of this Agreement or the
transactions contemplated hereby shall be made by any party prior to the
Closing without the written approval of the other parties hereto (which
approval shall not be
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unreasonably withheld), except as required by law or the regulations of any
securities exchange. Each party shall use its best efforts to maintain the
confidentiality of the terms of the transactions contemplated hereby, except as
required by law or as necessary to protect the interest of such party
hereunder.
12.10 Partial Invalidity. In the event that any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by a duly authorized officer all as of the date first
written above.
UNIVERSAL PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its: President
------------------------------------
XxXXXXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Its: Senior Vice-President and
------------------------------------
Chief Financial Officer
------------------------------------
UNIVERSAL FABRICATORS INCORPORATED
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its: President
------------------------------------
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SCHEDULES INTENTIONALLY OMITTED
REGISTRANT WILL PROVIDE COPIES UPON REQUEST
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