Exhibit 2.1
ASSET PURCHASE AGREEMENT
BY AND AMONG
STAMFORD CS ACQUISITION CORP.,
XXXXX-XXXXXXXX HOLDINGS, INC.,
XXXXX-XXXXXXXX, INC.
AND
HEXCEL CORPORATION
DATED AS OF JULY 25, 1998
TABLE OF CONTENTS
Page
ARTICLE I
PURCHASE AND SALE OF
ASSETS AND ASSUMPTION OF LIABILITIES . . . . . . . . . . . . . . . . . 2
Section 1.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Consideration . . . . . . . . . . . . . . . . . . . . . 7
Section 1.3 Closing and Deferred Closing. . . . . . . . . . . . . 9
Section 1.4 Deliveries by CS Inc. at the Closing . . . . . . . . . . 9
Section 1.5 Deliveries by CS Inc. at the Deferred Closing . . . . . 10
Section 1.6 Deliveries by Buyer at the Closing . . . . . . . . . . . 11
Section 1.7 Deliveries by Buyer at the Deferred Closing . . . . . . 12
ARTICLE II-A
REPRESENTATIONS AND WARRANTIES OF STAMFORD . . . . . . . . . . . . . . 12
Section 2A.1 Organization . . . . . . . . . . . . . . . . . . . . . . 12
Section 2A.2 Authority . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2A.3 No Violations; Consents and Approvals. . . . . . . . . . 13
ARTICLE II-B
REPRESENTATIONS AND WARRANTIES OF CSH . . . . . . . . . . . . . . . . 14
Section 2B.1 Organization . . . . . . . . . . . . . . . . . . . . . . 14
Section 2B.2 Authority . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2B.3 No Violations; Consents and Approvals . . . . . . . . . 14
ARTICLE II-C
REPRESENTATIONS AND WARRANTIES OF CS INC. . . . . . . . . . . . . . . . 15
Section 2C.1 Organization . . . . . . . . . . . . . . . . . . . . . 15
Section 2C.2 Authority . . . . . . . . . . . . . . . . . . . . . . 15
Section 2C.3 No Violations; Consents and Approvals . . . . . . . . . 16
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . 16
Section 3.1 Organization . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.2 Authority . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.3 No Violations; Consents and Approvals. . . . . . . . . . 17
ARTICLE IV
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.1 Conduct of Business . . . . . . . . . . . . . . . . . . 18
Section 4.2 Access to Information. . . . . . . . . . . . . . . . . 19
Section 4.3 Commercially Reasonable Efforts; Other Actions. . . . 20
Section 4.4 Public Announcements . . . . . . . . . . . . . . . . . . 21
Section 4.5 Notification of Certain Matters . . . . . . . . . . . . 21
Section 4.6 Expenses . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.7 Affected Employees. . . . . . . . . . . . . . . . . . 22
Section 4.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.9 Sums Received in Respect of Acquired Assets and
Excluded Assets . . . . . . . . . . . . . . . . . . . . 22
Section 4.10 Name . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.11 Books and Records . . . . . . . . . . . . . . . . . . . 23
Section 4.12 Allocation of the Purchase Price . . . . . . . . . . . . 23
Section 4.13 Assignment of Contracts; Nonassignability . . . . . . . 24
Section 4.14 Assignment of Certain Indemnification Rights . . . . . . 24
Section 4.15 Continuation of Certain Plans . . . . . . . . . . . . . 25
Section 4.16 Exon-Xxxxxx . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.17 Tax Cooperation . . . . . . . . . . . . . . . . . . . . 25
Section 4.18 No Solicitation . . . . . . . . . . . . . . . . . . . . 26
Section 4.19 Lease. . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE V-A
CONDITIONS TO THE OBLIGATIONS OF BUYER AT CLOSING . . . . . . . . . . . 27
Section 5A.1 Consents and Approvals . . . . . . . . . . . . . . . . . 27
Section 5A.2 Certain Proceedings . . . . . . . . . . . . . . . . . . 27
Section 5A.3 Financing . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5A.4 Merger Agreement . . . . . . . . . . . . . . . . . . . . 27
Section 5A.5 Repayment of Indebtedness to Third Parties;
Termination of Security Interests . . . . . . . . . . . 27
ARTICLE V-B
CONDITIONS TO THE OBLIGATIONS OF BUYER
AT DEFERRED CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5B.1 Consents and Approvals . . . . . . . . . . . . . . . . . 28
Section 5B.2 Certain Proceedings . . . . . . . . . . . . . . . . . . 28
ARTICLE VI-A
CLOSING CONDITIONS TO THE OBLIGATIONS
OF STAMFORD, CSH AND CS INC. . . . . . . . . . . . . . . . . . . . . . 28
Section 6A.1 Consents and Approvals . . . . . . . . . . . . . . . . . 29
Section 6A.2 Certain Proceedings . . . . . . . . . . . . . . . . . . 29
Section 6A.3 Merger Agreement . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VI-B
CONDITIONS TO THE OBLIGATIONS OF CS INC.
AND CS INTERNATIONAL AT THE DEFERRED CLOSING . . . . . . . . . . . . . 29
Section 6B.1 Consents and Approvals . . . . . . . . . . . . . . . . . 29
Section 6B.2 Certain Proceedings . . . . . . . . . . . . . . . . . . 30
Section 7.1 Termination Before Closing . . . . . . . . . . . . . . . 30
Section 7.2 Termination Before Deferred Closing . . . . . . . . . . 31
Section 7.3 Termination by Buyer . . . . . . . . . . . . . . . . . . 32
Section 7.4 Termination by Stamford or CS Inc. Effective Date . . . 32
Section 7.5 Procedure for Termination . . . . . . . . . . . . . . . 32
Section 7.6 Effect of Termination and Abandonment . . . . . . . . . 33
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION . . . . . . . . . . . . . 33
Section 8.1 Survival of Representations and Warranties,
Covenants, etc. . . . . . . . . . . . . . . . . . . . 33
Section 8.2 Agreements of CSH, CS Inc. and Stamford to Indemnify . . 33
Section 8.3 Buyer's Agreement to Indemnify . . . . . . . . . . . . . 34
Section 8.4 Indemnification Based on Net Damage . . . . . . . . . . 34
Section 8.5 Third Party Claims . . . . . . . . . . . . . . . . . . . 34
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 9.1 Fees, Expenses and Taxes. . . . . . . . . . . . . . . . 35
Section 9.2 Further Assurances . . . . . . . . . . . . . . . . . . . 36
Section 9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 9.4 Severability . . . . . . . . . . . . . . . . . . . . . . 37
Section 9.5 Binding Effect; Assignment . . . . . . . . . . . . . . . 38
Section 9.6 Bulk Sales Law . . . . . . . . . . . . . . . . . . . . . 38
Section 9.7 No Third Party Beneficiaries . . . . . . . . . . . . . . 38
Section 9.8 Interpretation . . . . . . . . . . . . . . . . . . . . . 38
Section 9.9 Jurisdiction and Consent to Service. . . . . . . . . . 39
Section 9.10 Governing Law. . . . . . . . . . . . . . . . . . . . . 39
Section 9.11 Entire Agreement. . . . . . . . . . . . . . . . . . . 39
Section 9.12 Amendment, Modification and Waiver. . . . . . . . . . 39
Section 9.13 Specific Performance. . . . . . . . . . . . . . . . . . 40
Section 9.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . 40
Section 9.15 Effective Date. . . . . . . . . . . . . . . . . . . . 40
Schedule 1.1(b)(ii)- Deeds for Certain Properties . . . . . . . . . . 49
Schedule 1.4(d) - Required Consents and Waiver for Closing . . . . . . 50
Schedule 1.5(c) - Required Consents and Waiver for Deferred Closing . . 51
EXHIBIT A Merger Agreement
EXHIBIT B Closing Xxxx of Sale and Assignment
EXHIBIT C Closing Undertaking
EXHIBIT D FIRPTA Certificate
EXHIBIT E Assignment of ASCO
EXHIBIT F Assignment of Tech-Fab
EXHIBIT G Deferred Closing Xxxx of Sale and Assignment
EXHIBIT H Lease
EXHIBIT I Leased Properties
EXHIBIT J Deferred Closing Undertaking
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of
July 25, 1998, is by and among Stamford CS Acquisition Corp., a Delaware
corporation ("Stamford"), Hexcel Corporation, a Delaware corporation
("Buyer"), and, following the Effective Date (as defined below), Xxxxx-
Xxxxxxxx Holdings, Inc., a Delaware corporation ("CSH"), and Xxxxx-
Xxxxxxxx, Inc., a Delaware corporation ("CS Inc.") (Stamford, Buyer and,
following the Effective Date, CSH and CS Inc., collectively, the
"Parties").
RECITALS
A. Stamford has entered into a Merger Agreement, dated as of July 24,
1998, (the "Merger Agreement"), by and between Stamford and CSH, providing
for, among other things, (i) the merger of Stamford with and into CSH (the
"Merger") and (ii) the conversion of all of the outstanding shares of
Stamford into all of the outstanding shares of CSH. A copy of the Merger
Agreement is attached hereto as Exhibit A.
B. CSH is currently the owner of, and following the effective date of
the Merger (the "Effective Date") will continue to own (subject to a
Permitted Merger), all of the outstanding shares of common stock of CS Inc.
C. On the Effective Date, CSH, as successor in interest to Stamford,
will become a party to this Agreement by operation of law, and CSH shall
cause CS Inc. to become a party to this Agreement.
D. Stamford and Buyer desire that, promptly following the consummation
of the transactions contemplated by the Merger Agreement, CS Inc. and its
subsidiaries shall sell to Buyer, and Buyer shall purchase from CS Inc. and
its subsidiaries, the assets and operations of CS Inc. and its subsidiaries
as more fully described herein, upon the terms and subject to the
conditions set forth herein.
Now, therefore, in consideration of the mutual agreements herein and in
reliance upon the representations and warranties herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and intending to be legally bound hereby, the Parties hereby
agree as follows:
ARTICLE I
PURCHASE AND SALE OF
ASSETS AND ASSUMPTION OF LIABILITIES
Section 1.1 Purchase and Sale
(a) Subject to the terms and conditions of this Agreement,
at the Closing, CSH and CS Inc. shall, and CS Inc. shall cause its
subsidiaries to, sell, convey, assign, transfer and deliver to Buyer, and
Buyer will purchase, acquire and accept from CSH and from CS Inc. and its
subsidiaries, all of their rights, title and interests in and to all
properties, contracts and other assets (of every kind, nature, character
and description, whether real, personal or mixed, whether tangible or
intangible, whether accrued, contingent or otherwise and wherever
situated), goodwill and business as a going concern of CSH and of CS Inc.
and its subsidiaries other than the Excluded Assets (as defined in Section
1.1(c) hereof), including without limitation, the following assets
(collectively, the "Acquired Assets"):
(i) all real property, together with all
buildings, fixtures and improvements erected thereon, owned by CS
Inc. or any of its subsidiaries;
(ii) all leases of real property and all
contracts, commitments or other agreements relating thereto to
which CS Inc. or any of its subsidiaries is a party or by which
CS Inc. or any of its subsidiaries is bound;
(iii) all computer hardware and software,
computer programs and systems, databases, documentation and
resource material relating thereto, of CS Inc. or any of its
subsidiaries;
(iv) all inventory, wherever located, including
but not limited to raw materials, work-in-progress, finished
goods, supplies and other inventories and any rights of CS Inc.
or any of its subsidiaries to the warranties received from
suppliers and any related claims, credits, rights of recovery and
setoff with respect to such inventory;
(v) all furniture, fixtures, vehicles, spare
parts, tools, supplies, leasehold improvements, plant and
equipment and all other tangible property of CS Inc. or any of
its subsidiaries;
(vi) all rights in, to and under all contracts,
licenses, leases (other than leases for real property),
commitments, purchase orders and other agreements to which CS
Inc. or any of its subsidiaries is a party;
(vii) all customer lists of CS Inc. or any of
its subsidiaries;
(viii) all accounts receivable of CS Inc. or
any of its subsidiaries;
(ix) all Intellectual Property rights and other
proprietary rights of CS Inc. or any of its subsidiaries (the
"Acquired Intellectual Property");
(x) all permits, licenses, approvals and
authorizations by governmental authorities or third parties which
are transferable by CS Inc. or any of its subsidiaries;
(xi) all of the books of account and other
accounting records and data of CS Inc., or any of its
subsidiaries and all other books, records and data of CS Inc. or
any of its subsidiaries;
(xii) all warranties, rights to
indemnification or similar rights, whether arising by contract,
operation of law or otherwise in favor of CSH or of CS Inc. or
any of its subsidiaries;
(xiii) all right, title and interest in, to and
under the Interglas Shares, the Control Option, the Residual
Option, the Interglas Heads of Agreement, the Interglas
Shareholders Agreement and all related documents and instruments
(collectively, the "Interglas Assets");
(xiv) all right, title and interest in, to and
under the ASCO Shares, the ASCO Joint Venture Agreement, the ASCO
License Agreement and the ASCO Distributor Agreement and all
related documents and instruments;
(xv) all right, title and interest in, to and
under the Tech-Fab Partnership Interests, the Tech-Fab
Partnership Agreement, the Tech-Fab Joint Venture Agreement, the
Tech-Fab License Agreement, the Tech-Fab Cross-Distributorship
Agreement and all related documents and instruments;
(xvi) all rights, title, and interests in and
to all of the properties, contracts, and other assets, goodwill
and operations of the business as a going concern of any
subsidiary of CS Inc. organized under a jurisdiction within the
United States of America (a "Domestic Subsidiary");
(xvii) the name Xxxxx-Xxxxxxxx and all
derivatives and extensions thereof and all associated goodwill;
(xviii) cash and cash equivalents of CSH, CS
Inc. and any of their subsidiaries;
(xix) all rights and interests in and under
the Release (as defined in the Merger Agreement) and the Escrow
Agreement (as defined in the Merger Agreement); and
(xx) all rights, in, to and under, the Agreement
and Plan of Merger among Springs Industries, Inc., Fort Mill A
Inc., Vestar C/S Holding Company, L.L.C. and Xxxxx-S Acquisition
Corporation, dated February 24, 1996, including, but not limited
to, rights to indemnification thereunder.
(b) Such sale, assignment, transfer and delivery of the
Acquired Assets will be effected by delivery by CSH and by CS Inc. and its
subsidiaries, as the case may be, to Buyer of (i) a duly executed xxxx of
sale and assignment agreement substantially in the form set forth as either
Exhibit B (the "Closing Xxxx of Sale and Assignment") attached hereto or
Exhibit G (the "Deferred Closing Xxxx of Sale and Assignment") attached
hereto, as applicable, (ii) properly executed and acknowledged deeds
without covenants against grantor's acts for the properties listed on
Schedule 1.1(b)(ii), each in recordable form, effective to convey fee title
to each such property to Buyer in the state in which each such property is
located such that a reputable title insurance company licensed to do
business in the state in which each such property is located would issue a
title insurance policy insuring Buyer's fee title to each such property
(the "Deeds"), and (iii) such other duly executed, good and sufficient
instruments of conveyance, transfer and assignment as shall be necessary or
appropriate to convey to Buyer all of the rights, title and interests of
CSH and of CS Inc. and its subsidiaries in and to the Acquired Assets
(collectively, the "Other Instruments").
(c) Notwithstanding anything contained herein to the
contrary, CSH and CS Inc. and its subsidiaries shall not sell, convey,
assign, transfer or deliver, or cause to be sold, conveyed, assigned,
transferred or delivered, to Buyer, and Buyer shall not purchase, acquire
or accept from CSH, CS Inc. or its subsidiaries, the rights, title and
interests in all of the following properties and other assets (the
"Excluded Assets"):
(i) the outstanding shares of Common Stock, par
value $0.0l per share, of CS Inc.;
(ii) all capital stock of Domestic Subsidiaries
held by CS Inc., Stamford or any of their subsidiaries;
(iii) any Unrelated Assets; and
(iv) all of the assets that are leased to Buyer
pursuant to the Lease.
(d) On and as of the Closing Date (as defined in Section
1.3(a)) or the Deferred Closing Date (as defined in Section 1.3(b)) with
respect to the Interglas Assets as applicable, Buyer shall assume and agree
to perform, pay and discharge, all of the obligations and liabilities of
CSH, CS Inc. and its subsidiaries (whether liquidated or unliquidated,
known or unknown, contingent or otherwise) other than the Excluded
Liabilities (as defined in 1.1(e) hereof), including, without limitation,
the following liabilities (collectively, the "Assumed Liabilities"):
(i) any and all obligations and liabilities
arising from or relating to the Acquired Assets;
(ii) all liabilities and obligations, direct or
indirect, fixed or contingent, for Taxes of CSH, CS Inc. or any
of its subsidiaries (A) with respect to taxable periods, or
portions thereof, ending prior to the Effective Date, (B) arising
from the operation of or relating to the Acquired Assets (other
than the Interglas Assets), and the Leased Property and the
related business between the Effective Date and prior to the
Closing, or (C) arising from or relating to the Interglas Assets
between the Effective Date and the Deferred Closing Date
(collectively, the "Assumed Taxes");
(iii) all obligations and liabilities of CSH
or CS Inc. and its subsidiaries relating to or arising from any
employee benefit plans, employment agreements or corporate
policies and procedures relating to employee severance;
(iv) all environmental obligations and liabilities
of CSH or CS Inc. and its subsidiaries including environmental
obligations or liabilities relating to any property formerly
owned or operated by CS Inc. or any of its subsidiaries;
(v) fees, sales tax, transfer tax, filing
expenses or other charges incurred in connection with the
transfer of the Acquired Assets; and
(vi) the obligations of Stamford, CSH or CS Inc.
arising under Sections 4.3, 11.6, 11.7 and 11.9 of the Merger
Agreement.
(e) Buyer shall not assume nor agree to perform, pay or
discharge and Stamford, CSH and CS Inc. shall retain the following
obligations and liabilities of CSH, CS Inc. and its subsidiaries,
respectively (whether liquidated or unliquidated, known or unknown,
contingent or otherwise) (collectively, the "Excluded Liabilities"):
(i) any and all obligations and liabilities
arising exclusively from or relating exclusively to the Excluded
Assets, except to the extent specifically assumed pursuant to
Section 1.1(d)(iv) hereof and as otherwise provided in the Lease;
(ii) all obligations and liabilities arising from
or relating to (including but not limited to any and all
premiums, fees, liquidated damages and interest accrued thereon)
(A) the Credit Agreement (as defined in the Merger Agreement);
(B) the 10 1/2% Senior Notes, Series B, of CS Inc. due in 2006
and the indenture relating thereto; (C) the 12 1/2% Senior
Debentures, Series B, of CSH due 2007 and the indenture relating
thereto; and (D) any indebtedness under the BA Acquisition Debt
(or any replacement therefor) or incurred by Stamford, CSH, or CS
Inc. or any of its subsidiaries to finance the Lease (or any
replacement therefor);
(iii) all Transactions Expenses (as defined in
the Merger Agreement) and Employee Bonuses (as defined in the
Merger Agreement);
(iv) any obligations and liabilities of CSH or CS
Inc. which (A) were obligations and liabilities of Stamford or
any member of any affiliated group (within the meaning of Section
1504 of the Code) immediately prior to the Effective Date and (B)
become obligations and liabilities of CSH or CS Inc. by reason of
a Permitted Merger, except those obligations specifically assumed
by Buyer pursuant to Section 1.1(d)(vi) hereof;
(v) all obligations and liabilities, direct or
indirect, fixed or contingent, for Taxes of Stamford or any
member of any affiliated group (within the meaning of Section
1504 of the Code) other than Taxes of CSH, CS Inc. and its
subsidiaries which are Assumed Taxes; and
(vi) any and all liabilities and obligations,
direct or indirect, fixed or contingent, for federal, state,
local or foreign income taxes due as a result of (A) any of the
transactions contemplated by this Agreement or (B) any
transactions occurring on or after the Effective Date relating to
the Unrelated Assets.
Section 1.2 Consideration. Subject to the terms and
conditions of this Agreement, the consideration to be paid by Buyer for the
Acquired Assets shall consist of:
(a) $431 million, as appropriately adjusted to reflect any
adjustment to the Enterprise Value (as defined in the Merger Agreement)
used in calculating the Preliminary Equity Consideration (as defined in the
Merger Agreement) (the "Purchase Price"), payable to CS Inc. at the
Closing, by wire transfer of immediately available funds to such bank
account as shall be designated by CS Inc. at least two business days prior
to the Closing;
(b) the Purchase Price shall be increased by an amount
equal to one-half (1/2) of the amount, if any, in excess of 106% of the
aggregate principal amount of the Senior Debentures paid by CSH to the
holders of the Senior Debentures (as defined in the Merger Agreement) in
connection with the redemption thereof;
(c) upon the determination of the Final Equity
Consideration (as defined in the Merger Agreement), the Purchase Price
shall be further adjusted by adding the Unpaid Balance (as defined in the
Merger Agreement) or by subtracting the Overpayment (as defined in the
Merger Agreement), and in any such event either (a) an amount equal to the
Unpaid Balance shall be paid by Buyer to CS Inc. but only to the extent
that Buyer has not paid such Unpaid Balance to the Stockholders'
Representative in accordance with Section 1.1(d)(vi) hereof, or (b) an
amount equal to the Overpayment shall be paid by CS Inc. to Buyer but only
to the extent that Buyer has not received such Overpayment pursuant to the
Escrow Agreement or directly from the Stockholders' Representative, in each
case plus interest thereon at the Reference Rate (as defined in the Merger
Agreement) from the Effective Date until the date of payment. The
determination of the Final Equity Consideration (as defined in the Merger
Agreement) and related amounts pursuant to the Merger Agreement shall be
final and binding on the parties, absent fraud or manifest error.
(d) $22 million (the "Deferred Purchase Price"), payable to
CS Inc. at the Deferred Closing, by wire transfer, to such bank account as
shall be designated by CS Inc. at least two business days prior to the
Deferred Closing;
(e) an undertaking substantially in the form set forth as
Exhibit C attached hereto (the "Closing Undertaking"), whereby Buyer will
assume and agree to pay and discharge the Assumed Liabilities to be assumed
at the Closing as provided in the Closing Undertaking; and
(f) an undertaking substantially in the form set forth as
Exhibit J attached hereto (the "Deferred Closing Undertaking") whereby
Buyer will assume and agree to pay and discharge the Assumed Liabilities to
be assumed at the Deferred Closing as provided in the Deferred Closing
Undertaking.
Section 1.3 Closing and Deferred Closing.
(a) The Closing of the transactions contemplated by this
Agreement (other than the transactions contemplated to occur at the
Deferred Closing) shall take place one business day following the
satisfaction or waiver of all of the conditions to Closing set forth in
Article V-A and Article VI-A hereof at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 919 Third Avenue, New York, New York, or on such other
date and at such other time or place as the Parties may agree. The date of
the Closing is sometimes referred to herein as the "Closing Date."
(b) The closing of the sale and transfer of the Interglas
Assets (the "Deferred Closing") shall take place one business day following
the satisfaction or waiver of all of the conditions to the Deferred Closing
set forth in Article V-B and Article VI-B, at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 919 Third Avenue, New York, New York, or on such
other date and such other time or place as the parties may agree (the
"Deferred Closing Date").
Section 1.4 Deliveries by CS Inc. at the Closing. At the
Closing, CSH and CS Inc. and it subsidiaries, as the case may be, will
deliver or cause to be delivered to Buyer (unless delivered previously) the
following:
(a) a duly executed Closing Xxxx of Sale and Assignment;
(b) the books and records of CSH and CS Inc. and its
subsidiaries, other than those books and records that relate exclusively to
the Excluded Assets (except as provided below) or Excluded Liabilities;
(c) the books and records of CSH, CS Inc. and its
subsidiaries relating to the Leased Property;
(d) the consents and waivers attached or described on
Schedule 1.4(d) (collectively, the "Required Consents");
(e) a Certificate of Non-Foreign Status in a form
reasonably acceptable to Buyer (the "FIRPTA Certificate"), provided,
however, that if CS Inc. fails to provide the FIRPTA Certificate, the
transaction shall nonetheless close and Buyer shall withhold from the
Purchase Price and pay over to the appropriate taxing authorities the
amount required to be withheld under Section 1445 of the Code as determined
by Buyer;
(f) the Deeds;
(g) the Lease;
(h) certain affidavits and certificates required in
connection with the recordation of the deeds;
(i) all stock certificates representing the ASCO Shares
together with a duly executed stock power in blank and an assignment in the
form of Exhibit E relating to the ASCO Shares, the ASCO Joint Venture
Agreement, the ASCO Distributor Agreement, the ASCO License Agreement and
any related agreements;
(j) a duly executed assignment in the form of Exhibit F
relating to the Tech-Fab Partnership Agreement, the Tech-Fab Joint Venture
Agreement, the Tech-Fab Distributorship Agreement and any related
agreements; and
(k) a duly executed certificate of an authorized officer of
CS Inc. certifying that (i) the representations and warranties of Stamford,
CSH and CS Inc. contained in the Agreement are true and correct as of the
Closing Date, except for representations and warranties that speak as of a
specific date or time other than the Closing Date and (ii) Stamford, CSH
and CS Inc. have performed and complied in all material respects with all
of their respective agreements, obligations and covenants contained herein.
Section 1.5 Deliveries by CS Inc. at the Deferred Closing. At
the Deferred Closing, CSH or CS Inc. or its subsidiaries will deliver or
cause to be delivered to Buyer (unless previously delivered) the following:
(a) a duly executed Deferred Closing Xxxx of Sale and
Assignment;
(b) all stock certificates representing the Interglas
Shares together with a duly executed stock power in blank and an assignment
in the form of Exhibit G relating to the Interglas Shares, the Control
Option, the Residual Option, the Interglas Heads of Agreement, the
Interglas Shareholders Agreement and any related agreements;
(c) the consents and waivers attached or described on
Schedule 1.5(c) (the "Deferred Closing Consents");
(d) a FIRPTA Certificate, provided, however, that if CS
Inc. fails to provide the FIRPTA Certificate, the transaction shall
nonetheless close and Buyer shall withhold from the Deferred Purchase Price
and pay over to the appropriate taxing authorities the amount required to
be withheld under Section 1445 of the Code as determined by Buyer; and
(e) a duly executed certificate of an authorized officer of
CS Inc. certifying that (i) the representations and warranties of Stamford,
CSH and CS Inc. contained in the Agreement are true and correct as of the
Deferred Closing Date and (ii) CS Inc. and CS International have performed
and complied in all material respects with all of their respective
agreements, obligations and covenants contained herein.
Section 1.6 Deliveries by Buyer at the Closing. At the
Closing, Buyer will deliver or cause to be delivered to CS Inc. (unless
previously delivered) the following:
(a) the portion of the Purchase Price to be delivered at
the Closing;
(b) the duly executed Closing Undertaking;
(c) all other documents, instruments or writings required
to be delivered by Buyer at or prior to the Closing pursuant to this
Agreement or otherwise required in connection herewith; and
(d) a duly executed certificate of an authorized officer of
Buyer certifying that (i) the representations and warranties of Buyer
contained in the Agreement are true and correct as of the Closing Date and
(ii) Buyer has performed and complied in all material respects with all of
its agreements, obligations and covenants contained herein.
Section 1.7 Deliveries by Buyer at the Deferred Closing. At
the Deferred Closing, Buyer will deliver or cause to be delivered to CS
Inc. (unless previously delivered) the following:
(a) the Deferred Purchase Price to be delivered at the
Deferred Closing;
(b) the duly executed Deferred Closing Undertaking;
(c) all other documents, instruments or writings required
to be delivered by Buyer at or prior to the Deferred Closing pursuant to
this Agreement or otherwise required in connection herewith; and
(d) a duly executed certificate of an authorized officer of
Buyer certifying that (i) the representations and warranties of Buyer
contained in the Agreement are true and correct as of the Deferred Closing
Date and (ii) Buyer has performed and complied in all material respects
with all of its agreements, obligations and covenants contained herein.
ARTICLE II-A
REPRESENTATIONS AND WARRANTIES OF STAMFORD
Stamford represents and warrants to Buyer as follows:
Section 2A.1 Organization. Stamford is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. True and complete copies of the certificate
of incorporation and by-laws of Stamford, as they are currently in effect
and as they will be in effect at Closing, have been made available to
Buyer.
Section 2A.2 Authority. Stamford has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized and approved by Stamford. No other proceedings on the
part of Stamford are necessary to authorize this Agreement or the
consummation of the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Stamford, and, assuming
this Agreement constitutes a legal, valid and binding agreement of Buyer,
constitutes a legal, valid and binding agreement of Stamford, enforceable
against Stamford in accordance with its terms, except that enforcement
thereof may be subject to (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
Section 2A.3 No Violations; Consents and Approvals.
(a) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby to be performed by
Stamford nor compliance by Stamford with any of the provisions hereof will
(i) violate any provision of Stamford's certificate of incorporation or by-
laws, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default, or give rise to any
right of termination, cancellation or acceleration or any right that
becomes effective upon the occurrence of a merger, consolidation, sale of
assets or change in control, under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, other instrument of
indebtedness for money borrowed, license, franchise, permit or agreement to
which Stamford is a party, or by which Stamford or any of its properties is
bound immediately prior to the Effective Date, or (iii) violate any
statute, rule, regulation, order or decree of any public body or authority
by which Stamford or any of its properties is bound immediately prior to
the Effective Date, excluding from the foregoing clauses (ii) and (iii)
violations, breaches, defaults or rights that, either individually or in
the aggregate, would not have a material adverse effect either on the
assets, business, operations or financial condition of Stamford, nor
materially impair the ability of Stamford to consummate the transactions
contemplated by this Agreement or for which it has received, or prior to
the Closing shall have received, appropriate consents or waivers.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any governmental entity is required
by Stamford in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby, except (i) in
connection with the applicable requirements of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act") and as
required pursuant to applicable antitrust and competition law statutes and
regulations of applicable foreign jurisdictions, (ii) for filing a notice
pursuant to the Exon-Xxxxxx Amendment and (iii) such other consents,
orders, authorizations, registrations, declarations and filings the failure
of which to obtain would not have a material adverse effect either on the
assets, business, operations or financial condition of Stamford, nor
materially impair the ability of Stamford to consummate the transactions
contemplated by this Agreement.
ARTICLE II-B
REPRESENTATIONS AND WARRANTIES OF CSH
CSH (as of the Effective Date) represents and warrants to Buyer
as follows:
Section 2B.1 Organization. CSH is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. True and complete copies of the certificate
of incorporation and by-laws of CSH, as they are currently in effect and as
they will be in effect at Closing, have been made available to Buyer.
Section 2B.2 Authority. CSH has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized and approved by CSH. No other proceedings on the part
of CSH are necessary to authorize this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by CSH, and, assuming this Agreement constitutes a
legal, valid and binding agreement of Buyer, constitutes a legal, valid and
binding agreement of CSH, enforceable against CSH in accordance with its
terms, except that enforcement thereof may be subject to (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought.
Section 2B.3 No Violations; Consents and Approvals.
(a) Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby to be
performed by CSH nor compliance by CSH with any of the provisions hereof
will violate any provision of CSH's certificate of incorporation or by-
laws.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any governmental entity is required
by CSH in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby, except (i) in
connection with the applicable requirements of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act") and as
required pursuant to applicable antitrust and competition law statutes and
regulations of applicable foreign jurisdictions, (ii) for filing a notice
pursuant to the Exon-Xxxxxx Amendment and (iii) such other consents,
orders, authorizations, registrations, declarations and filings the failure
of which to obtain would not have a Material Adverse Effect.
ARTICLE II-C
REPRESENTATIONS AND WARRANTIES OF CS INC.
CS Inc. (as of the Effective Date) represents and warrants to
Buyer as follows:
Section 2C.1 Organization. CS Inc. is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and CS Inc. has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted. True and complete copies of the
certificate of incorporation and by-laws of CS Inc., as they are currently
in effect and as they will be in effect at Closing, have been made
available to Buyer.
Section 2C.2 Authority. CS Inc. has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized and approved by CS Inc.. No other proceedings on the
part of CS Inc. are necessary to authorize this Agreement or the
consummation of the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by CS Inc., and, assuming this
Agreement constitutes a legal, valid and binding agreement of Buyer,
constitutes a legal, valid and binding agreement of CS Inc. enforceable
against CS Inc. in accordance with its terms, except that enforcement
thereof may be subject to (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
Section 2C.3 No Violations; Consents and Approvals.
(a) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby to be performed by CS
Inc. nor compliance by CS Inc. with any of the provisions hereof will
violate any provision of CS Inc.'s certificate of incorporation or by-laws.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any governmental entity is required
by CS Inc. in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby, except (i) in
connection with the applicable requirements of the HSR Act and as required
pursuant to applicable antitrust and competition law statutes and
regulations of applicable foreign jurisdictions, (ii) for filing a notice
pursuant to the Exon-Xxxxxx Amendment and (iii) such other consents,
orders, authorizations, registrations, declarations and filings the failure
of which to obtain would not have a Material Adverse Effect.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Stamford, CSH and CS Inc. as
follows:
Section 3.1 Organization. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as now being conducted.
Section 3.2 Authority. Buyer has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized and approved by Buyer, and no other
proceedings on the part of Buyer are necessary to authorize this Agreement
or the consummation of the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Buyer and,
assuming this Agreement constitutes a legal, valid and binding agreement of
the other parties hereto, constitutes a legal, valid, and binding agreement
of Buyer, enforceable against Buyer in accordance with its terms, except
that enforcement thereof may be subject to (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws nor
or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
Section 3.3 No Violations; Consents and Approvals.
(a) Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby nor compliance
by Buyer with any of the provisions hereof will (i) violate any provision
of the certificate of incorporation or by-laws of Buyer, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default, or give rise to any right of termination,
cancellation or acceleration or any right that becomes effective upon the
occurrence of a merger, consolidation, sale of assets or change in control,
under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, other instrument of indebtedness for money borrowed,
license, franchise, permit or agreement to which Buyer is a party, or by
which any of their respective properties is bound, or (iii) violate any
statute, rule, regulation, order or decree of any public body or authority
by which Buyer or any of its properties is bound, excluding from the
foregoing clauses (ii) and (iii), violations, breaches, defaults or rights
that, either individually or in the aggregate, would not materially impair
Buyer's ability to consummate the transactions contemplated hereby or for
which Buyer has received or, prior to the Closing, shall have received
appropriate consents or waivers.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any governmental entity is required
by Buyer in connection with the execution and delivery of this Agreement,
or the consummation by Buyer of the transactions contemplated hereby,
except (i) in connection with the applicable requirements of the HSR Act
and as required pursuant to applicable antitrust and competition law
statutes and regulations of applicable foreign jurisdictions, (ii) for
filing a notice pursuant to the Exon-Xxxxxx Amendment and (iii) such other
consents, orders, authorizations, registrations, declarations and filings
not obtained prior to the Closing the failure of which to be obtained or
made would not, individually or in the aggregate, materially impair the
ability of Buyer to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby.
ARTICLE IV
COVENANTS
Section 4.1 Conduct of Business. (a) During the period from
the date hereof to the earlier to occur of the Effective Date and any
termination pursuant to Article VII hereof, Stamford shall not amend or
supplement the Merger Agreement in any manner that could materially and
adversely affect Buyer. During the period from the Effective Date to the
later to occur of the Closing, or, with respect to the Interglas Assets,
the Deferred Closing, or any termination pursuant to the Article VII
hereof, Stamford, CSH and CS Inc. shall instruct current management of CS
Inc. to (but shall not be liable for such management's acts or omissions)
(i) operate the Acquired Assets, Leased Properties and the related business
of CS Inc. only in the ordinary course of business consistent with past
practice, (ii) use their reasonable efforts to preserve intact the Acquired
Assets and Leased Properties (except for wear and tear in the ordinary
course of business) and keep available the services of the Affected
Employees (as defined in Section 4.7(a) herein), (iii) preserve and
maintain the Acquired Assets and Leased Properties and use their
commercially reasonable efforts to preserve and maintain satisfactory
relationships with suppliers, distributors and customers, and (iv) take all
commercially reasonable steps to protect the Acquired Intellectual Property
rights and prevent any of it from falling into the public domain.
(b) Without limiting the generality of the foregoing,
during the period from the Effective Date to the earlier to occur of the
Closing or any termination pursuant to Article VII hereof, except as Buyer
may otherwise expressly consent to in writing, neither Stamford, CSH nor CS
Inc. nor any of its subsidiaries will vote in favor of, nor in any way
approve any of the following actions with respect to CSH or CS Inc. or any
of its subsidiaries: (i) declare, set aside or pay any dividend or other
deemed distribution (whether in cash, stock or property or any combination
thereof) in respect of any of its capital stock, provided that CSH and CS
Inc. may declare, set aside and pay dividends or other distributions in
cash in an aggregate amount not to exceed the interest payable in
accordance with the BA Acquisition Debt for the period from the Effective
Date to the earlier to occur of the Closing Date or the termination of this
Agreement pursuant to Article VII hereof; (ii) enter into any agreement
with Stamford or its Affiliates; (iii) merge (other than a Permitted
Merger), consolidate, restructure or reorganize, or acquire by any means
any business or entity; (iv) incur or assume any indebtedness for borrowed
money or any guarantees of indebtedness of others or create any Lien upon
any of the Acquired Assets provided that CS Inc. may enter into a revolving
credit agreement that provides financing for the operation of the business
of CS Inc. on terms reasonably acceptable to Buyer; or (v) authorize any
Joint Venture to take any of the foregoing actions.
(c) During the period from the Closing Date to the earlier
to occur of the Deferred Closing Date or any termination pursuant to
Article VII hereof, except as Buyer may otherwise consent to in writing,
neither CSH nor CS Inc. will take any of the actions specified in clauses
(iv) or (v) of Section 4.1(b) hereof.
Section 4.2 Access to Information.
(a) From the date of this Agreement until the Effective
Date, Stamford shall authorize and provide Buyer and Buyer's authorized
representatives (including counsel, financial advisers, environmental and
other consultants, accountants and auditors) full access to the information
and conferences regarding CSH, CS Inc. and their subsidiaries provided to
Stamford pursuant to Sections 11.3, 11.11 and 11.12 of the Merger Agreement
and agrees to exercise its rights pursuant to Sections 11.3, 11.11 and
11.12 to obtain promptly such information, and to request conferences, as
Buyer may reasonably request (or to designate Buyer and Buyer's
representatives as its authorized representatives to obtain such
information or attend such conferences), subject to the limitations set
forth therein.
(b) During the period from the Effective Date to the later
to occur of the Closing, or, with respect to the Interglas Assets, the
Deferred Closing or any termination pursuant to the Article VII hereof,
each of CSH and CS Inc. shall provide Buyer with information and access and
conferences and notices in the same manner as provided in Sections 11.3,
11.11 and 11.12 of the Merger Agreement.
Section 4.3 Commercially Reasonable Efforts; Other Actions.
(a) Subject to the terms and conditions herein provided and
applicable law, Buyer, on the one hand, and Stamford, and after the
Effective Date, CSH and CS Inc., on the other, shall use their commercially
reasonable efforts promptly to take, or cause to be taken, all other
actions and do, or cause to be done, all other things necessary, proper,
appropriate or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this
Agreement, including, without limitation, (i) the filing of Notification
and Report Forms under the HSR Act with the Federal Trade Commission (the
"FTC") and the Antitrust Division of the Department of Justice (the
"Antitrust Division") and using their commercially reasonable efforts to
respond as promptly as practicable to all inquiries received from the FTC
or the Antitrust Division for additional information or documentation; (ii)
the filing of any notices or applications under any applicable antitrust
and competition law statutes and regulations of foreign jurisdictions and
using their commercially reasonable efforts to respond as promptly as
practicable to all inquiries received from the governmental authorities for
additional information or documentation; (iii) filing a notice pursuant to
the Exon-Xxxxxx Amendment and using their commercially reasonable efforts
to respond as promptly as practicable to all inquiries received from CFIUS
for additional information or documentation; and (iv) the obtaining of all
necessary consents, approvals or waivers under applicable law or its
material contracts, including without limitation those agreements set forth
on Schedule 1.4(d); provided, however, the agreement of the Parties
contained herein shall not require Buyer to take any action that would (i)
require divestiture by Buyer of any of its existing business operations or
of a not insubstantial portion of the Acquired Assets, or (ii) impose a
commercially unreasonable burden on, or restriction upon, Buyer's existing
business operations or the Acquired Assets.
(b) The parties hereto will consult and cooperate with one
another, and consider in good faith the views of one another in connection
with any analysis, appearances, presentations, memoranda, briefs,
arguments, opinions and proposals made or submitted by or on behalf of any
party hereto in connection with a proceeding under or relating to the HSR
Act or any other filing with any governmental authority relating to any
antitrust or competition statutes or regulations or the Exon-Xxxxxx
amendment. The parties agree that the other party's legal counsel may, if
such other party so wishes, participate in any meeting with any
governmental authority with jurisdiction over the enforcement of any such
statute or regulation regarding this Agreement or transactions contemplated
hereby to the extent permitted by such governmental authority and to advise
each other in advance of any such meeting.
(c) The parties each shall, upon request by any other, as
soon as practicable, furnish the other with all information concerning
itself, its subsidiaries, directors, officers and stockholders and such
other matters as may be reasonably necessary or advisable in connection
with any statement, filing, notice or application made by or on behalf of
the requesting party and their respective subsidiaries or Joint Ventures,
to any third party and/or any governmental authority in connection with the
transactions contemplated by this Agreement.
(d) The parties each shall keep the others apprised of the
status of matters relating to completion of the transactions contemplated
hereby, including promptly furnishing the other with copies of notices or
other communications received by a party, as the case may be, or any of
their subsidiaries or Joint Ventures, from any third party and/or any
governmental authority with respect to the transactions contemplated by
this Agreement.
Section 4.4 Public Announcements. Except as may be required
by applicable law, rule, regulation or legal process, so long as this
Agreement is in effect, none of Stamford, CS Inc., Buyer or any of their
respective subsidiaries or Affiliates shall issue or cause the publication
of any press release or other public announcement with respect to the
transactions contemplated by this Agreement without the consent of the
other parties hereto, which consent shall not be unreasonably withheld or
withdrawn, provided, however, nothing in this Section 4.4 shall limit or
restrict Buyer from communicating with customers, suppliers, advisors or
analysts with respect to the transactions contemplated by this Agreement or
require the consent from any other Party hereto.
Section 4.5 Notification of Certain Matters. Stamford shall
provide to Buyer within one business day of receipt thereof a copy of any
notification or other information received by Stamford pursuant to Sections
11.11, 11.12 or 15.9 of the Merger Agreement. Stamford shall provide to
Buyer such notification or other information in the manner described in
Section 9.3 hereof.
Section 4.6 Expenses. Except as provided herein, Buyer, on
the one hand, and Stamford and CS Inc., on the other hand, shall bear their
respective expenses arising from or relating to the Merger Agreement, this
Agreement and the transactions contemplated thereby, and all fees and
expenses of their respective investment bankers, finders, brokers, agents,
representatives, counsel and accountants.
Section 4.7 Affected Employees. Buyer shall offer to employ
(effective as of the Closing) the employees of CS Inc. and their
subsidiaries who are actively employed in the United States (together, the
"Affected Employees"). Consistent with the foregoing, the Parties shall
mutually agree between the date of this Agreement and the Closing Date on
appropriate mechanisms for the orderly transition from CS Inc. to Buyer of
Affected Employees who accept employment with Buyer.
Section 4.8 Insurance. Subsequent to the Closing Date,
neither CSH (or any successor) nor CS Inc. shall surrender their respective
rights under any policies of insurance which were in effect at the time
immediately prior to the Closing Date in respect of risks and losses
arising out of events or occurrences occurring prior to the Closing Date in
the course or as a result of the conduct of the business operated, with
respect to the Acquired Assets or Assumed Liabilities ("Prior
Occurrences"); provided, however, that nothing herein shall be deemed to
require CSH (or any successor) or CS Inc. to maintain any insurance with
respect to events or occurrences occurring after the Closing Date. CSH (or
any successor) and CS Inc. shall cause Buyer to be designated as loss payee
under such policies with respect to the Prior Occurrences, and shall assign
to Buyer, or designate Buyer as their agent with respect to, all claims and
other rights to enforce or assure insurance coverage under such policies
with respect to Prior Occurrences; provided further, that in the event CSH
(or any successor) or CS Inc. is unable to designate Buyer as loss payee
under such policies, CSH (or any successor) and CS Inc. shall cooperate
with Buyer and use their commercially reasonable efforts to provide Buyer
the equivalent benefits of such policies.
Section 4.9 Sums Received in Respect of Acquired Assets and
Excluded Assets. CS Inc. and its subsidiaries shall pay or cause to be
paid over to Buyer, promptly after the receipt thereof after the Closing
Date, all sums received in respect or on account of the Acquired Assets
other than the Purchase Price and any other amounts paid to Stamford by
Buyer pursuant to this Agreement. Buyer shall pay or cause to be paid over
to CS Inc., promptly after the receipt thereof after the Closing Date, all
sums received in respect or on account of the Excluded Assets other than
the Leased Property (except as otherwise provided in the Lease) and other
than amounts paid to Buyer by CS Inc., CSH or Stamford pursuant to this
Agreement.
Section 4.10 Name. From and after the Closing Date and
consistent with the terms hereof, Buyer shall possess, to the exclusion of
Stamford, CSH and CS Inc. and their respective subsidiaries and Affiliates,
all rights to the use of the Acquired Intellectual Property (except as set
forth in Section 4.13 hereof), including the name "Xxxxx-Xxxxxxxx Inc.",
and CS Inc. and its subsidiaries shall each, as promptly as commercially
practicable following the Closing Date, change its name to a name which
does not contain either Xxxxx-Xxxxxxxx or any word confusingly similar with
such word.
Section 4.11 Books and Records. Each of the Parties agree that
all books and records of CSH and CS Inc., wherever located, which a Party
acquires hereunder (including, but not limited to, correspondence,
memoranda, books of account, personnel and payroll records and the like)
(the "Business Records") shall be preserved by such Party for a period of
at least seven (7) years following the Closing Date. Following such seven
(7) year period, neither Stamford, CSH and CS Inc. (or any successor
thereof), on the one hand, nor Buyer, on the other hand, will dispose of
any such books and records without first offering such books and records to
the other Party. After the Closing Date, where there is some legitimate
business purpose, the Party in possession of any Business Records shall
provide the other Party and its authorized representatives with access,
upon prior reasonable notice specifying the need therefor, during regular
business hours, to the Business Records, and the other Party or its
representatives shall have the right to examine and make copies of such
Business Records; provided that the foregoing right shall not be
exercisable in such a manner as to unreasonably interfere with the normal
operations of such Party.
Section 4.12 Allocation of the Purchase Price. As soon as
practicable after the date hereof, but in no event less than 10 days prior
to the Closing Date, Buyer and Stamford shall mutually agree on an
allocation (the "Allocation Statement") of the Purchase Price payable by
Buyer pursuant to Section 1.2 hereof plus the amount of any Assumed
Liabilities (collectively, the "Allocable Amount") for federal income tax
purposes in accordance with their fair market values and with the
requirements of Section 1060 of the Code. Each of Buyer and CS Inc. shall
(i) report for all Tax purposes the purchase of the Acquired Assets in a
manner consistent with the Allocation Statement and in a manner consistent
with all applicable rules and regulations; (ii) timely file a Form 8594 in
accordance with the requirements of Section 1060 of the Code and this
Section 4.12; (iii) not assert, in connection with any Return, Tax audit or
similar proceedings, any allocation of the Allocable Amount that differs
from that agreed to herein; and (iv) notify the other in the event any
taxing authority is taking or proposing to take a position inconsistent
with such allocation.
Section 4.13 Assignment of Contracts; Nonassignability. From
and after the Closing Date, CS Inc. shall use commercially reasonable
efforts to obtain all necessary consents, approvals or waivers required for
the transfer to Buyer of the agreements, contracts and commitments, and any
other property interest or right that is included in the Acquired Assets.
Notwithstanding the foregoing, to the extent that any contract, agreement
or commitment, or any other property interest or right included in the
Acquired Assets, is not capable of being assigned or transferred without
the consent or waiver of the other party thereto, or any third person
(including a government or governmental unit), or if such assignment or
transfer or attempted assignment or transfer would constitute a breach
thereof or a violation of any law, decree, order, regulation or other
governmental edict or is otherwise not practicable, this Agreement shall
not constitute an assignment, transfer or sublease thereof, or an attempted
assignment, transfer or sublease thereof prior to the time that the
appropriate consent or waiver is obtained. To the extent that any
contract, agreement or commitment or any other property interest or right
included in the Acquired Assets is not assigned hereby (the "Non-Assigned
Contracts"), then CS Inc. shall, and Stamford shall cause CS Inc. to, use
commercially reasonable efforts to provide to Buyer the economic benefit of
the Non-Assigned Contracts. The parties acknowledge that to the extent the
rights under an agreement are validly assigned or to the extent that Buyer
receives the economic benefit of any such agreement, the Buyer will assume
the obligations under such agreement, provided that, Buyer will use
commercially reasonable efforts, including where appropriate partial
performance, to assist Stamford and CS Inc. to provide to Buyer the
economic benefit of any agreement. Furthermore, the Parties hereto
acknowledge and agree that to the extent the transactions contemplated by
this Agreement have closed and there exists any Non-Assigned Contracts,
Buyer does not waive any rights to receive any assignment of or to receive
the economic benefit from the Non-Assigned Contracts.
Section 4.14 Assignment of Certain Indemnification Rights.
From and after the Closing Date, CS Inc. shall use commercially reasonable
efforts to obtain the consents and approvals necessary to assign all rights
of CSH (and any successor) and CS Inc. to indemnification from any party
under the agreements included as part of the Acquired Assets, the Lease or
any Assumed Liabilities and to the extent that, by operation of law or
otherwise, Buyer is held liable for any Excluded Liabilities. Stamford,
CSH, CS Inc. and Buyer shall each cooperate and use commercially reasonable
efforts to provide for the allocation of all indemnification rights
available under the agreements included as part of the Acquired Assets, the
Lease or any Assumed Liabilities such that the Party who has assumed any
liability for which any such agreement provides indemnification may
exercise rights directly to obtain such indemnification. To the extent
that a Party may not directly seek indemnification under any such agreement
with respect to any covered liability, then the Party who may seek such
indemnification directly shall use commercially reasonable efforts to
obtain such indemnification from the third party and to provide to the
Party subject to such liability the economic benefit of such
indemnification received from such third party.
Section 4.15 Continuation of Certain Plans. Upon written
request from the Buyer delivered to CS Inc. within the first ninety (90)
days immediately following the Closing Date, CS Inc. shall take, or shall
cause the sponsoring employer to take, all necessary or appropriate actions
reasonably requested by the Buyer with respect to the Xxxxx-Xxxxxxxx
Retirement Partnership Plan effective as of October 1, 1996 (as amended on
March 9, 1998, the "CS Inc. Plans") to cause and facilitate the transfers
of any assets related to Affected Employees who accept employment with
Buyer from the respective trustees of the CS Inc. Plans to the trustee(s)
of one or more retirement plans qualified under Code Sections 401(a) and
401(k) which are designated or established by Buyer (the "Buyer's 401(k)
Plans"). Upon the transfer, each Buyer's 401(k) Plan shall indemnify and
hold harmless the corresponding CS Inc. Plan from and against all
liabilities attributable to the account balances transferred to such
Buyer's 401(k) Plan.
Section 4.16 Exon-Xxxxxx. During the period from the execution
of the Merger Agreement through the Closing Date, CS Inc. shall not, and
Stamford shall not permit CS Inc. to, engage in any activity that would
result in CS Inc. or CSH being required to file an amendment to its initial
filing with respect to compliance with the terms of the Exon-Xxxxxx
Amendment in connection with the transactions contemplated hereby.
Section 4.17 Tax Cooperation. The Parties and their respective
affiliates shall cooperate in the preparation of all Returns relating in
whole or in part to taxable periods ending on or before or including the
Closing Date that are required to be filed after such date. Such
cooperation shall include, but not be limited to, furnishing prior years'
Returns or return preparation packages illustrating previous reporting
practices or containing historical information relevant to the preparation
of such Returns, providing reasonable access to employees with knowledge of
such Returns during regular business hours and furnishing such other
information within such party's possession requested by the party filing
such Returns as is relevant to their preparation. Additionally, a Party
filing any such Returns (the "Filing Party") shall mail a draft copy of
such Returns to the other party (the "Non-Filing Party"), not less than 30
days prior to the expected filing date and shall provide the Non-Filing
Party and its representatives, advisors and agents with such materials and
such access to the books and records of the Filing Party related to such
Return so that the Non-Filing Party may review and comment on such Return
prior to the filing thereof. The Filing Party and the Non-Filing Party
shall mutually agree on the final preparation content and filing of any
Return referred to in this Section 4.17.
Section 4.18 No Solicitation. From and after the date hereof
until the earlier to occur of the Closing Date and any termination of this
Agreement as provided in Article VII hereof, Stamford, and after the
Effective Date, CSH and CS Inc. shall not, and shall not permit any of
their subsidiaries, affiliates, Joint Ventures, officers, directors,
employees, representatives or agents, to, directly or indirectly,
encourage, solicit, participate in, initiate or continue discussions or
negotiations with, or provide any information to, any person (other than
the Buyer and its affiliates and representatives) concerning any merger
(other than the Permitted Mergers), sale of assets, sale of shares of
capital stock or similar transactions involving CSH, CS Inc. or any
subsidiary or division or any Joint Venture and any existing discussions or
negotiations with third persons relating thereto shall be terminated
immediately.
Section 4.19 Lease. The Parties shall complete and enter into
a Lease Agreement, substantially on the terms and conditions set forth on
Exhibit H hereto (the "Lease") with respect to the properties, structures,
machinery and equipment described on Exhibit I hereto (collectively, the
"Leased Properties"). Notwithstanding anything in this Agreement to the
contrary, the obligation of Buyer to perform its obligations under this
Agreement shall be subject to the execution and delivery, on or before the
Closing Date, of the completed Lease by such Delaware business trust or
similar bankruptcy remote entity (as landlord, "Landlord") formed by CS
Inc., which will be the sole beneficiary or owner of Landlord and Landlord
shall have acquired from CS Inc. all estate, right, title and interest in,
to or under the Leased Properties.
ARTICLE V-A
CONDITIONS TO THE OBLIGATIONS OF BUYER AT CLOSING
The obligation of Buyer to perform its obligations under this
Agreement shall be subject to the fulfillment, on or before the Closing
Date of each of the following conditions, any one or more of which may be
waived by Buyer:
Section 5A.1 Consents and Approvals. All necessary consents
and approvals of any United States or any other governmental authority that
are required for the consummation of the transactions contemplated by this
Agreement (other than the transactions contemplated by the Deferred
Closing), shall have been obtained and any waiting period applicable to the
consummation of the transactions contemplated by this Agreement (other than
the transactions contemplated by the Deferred Closing) under the HSR Act
and under any applicable antitrust and competition law statutes and
regulations of foreign jurisdictions, or other applicable law, including
the Exon-Xxxxxx Amendment, shall have expired or been terminated.
Section 5A.2 Certain Proceedings. No writ, order, decree or
injunction of a court of competent jurisdiction, governmental entity or
regulatory body shall be in effect against any of the Parties or their
respective subsidiaries and no proceedings therefor shall have been
threatened or commenced by any governmental entity or regulatory body, in
each case, which prohibits or restricts the consummation of the
transactions contemplated by this Agreement (other than the transactions
contemplated by the Deferred Closing).
Section 5A.3 Financing. Buyer shall have received the funds
necessary to consummate the transactions contemplated by this Agreement
pursuant to the Commitment Letter.
Section 5A.4 Merger Agreement. Each of the conditions
contained in Article X and Article XI of the Merger Agreement shall have
been satisfied and complied with, shall not have been waived without
Buyer's prior written consent, the transactions contemplated by the Merger
Agreement shall have been consummated and CSH and CS Inc. shall have
executed and delivered this Agreement.
Section 5A.5 Repayment of Indebtedness to Third Parties;
Termination of Security Interests. All indebtedness of Stamford, CSH and
CS Inc. under the BA Acquisition Debt will be simultaneously repaid in full
and terminated and the lender thereunder shall terminate and release all
security interests and liens of any kind on Acquired Assets securing such
indebtedness.
ARTICLE V-B
CONDITIONS TO THE OBLIGATIONS OF BUYER
AT DEFERRED CLOSING
The obligation of Buyer to perform its obligations at the
Deferred Closing under this Agreement shall be subject to the fulfillment,
on or before the Deferred Closing Date of each of the following conditions,
any one or more of which may be waived by Buyer:
Section 5B.1 Consents and Approvals. All necessary consents
and approvals of any United States or any other governmental authority that
are required (a) for the consummation of the sale and transfer of the
Interglas Assets, and (b) to enable Buyer to exercise the Control Option
and the Residual Option under the Interglas Agreement, shall have been
obtained and any waiting period applicable to the consummation of the
transactions contemplated to be consummated at the Deferred Closing under
the HSR Act and under any applicable antitrust and competition law statutes
and regulations of foreign jurisdictions, or other applicable law,
including the Exon-Xxxxxx Amendment, shall have expired or been terminated.
Section 5B.2 Certain Proceedings. No writ, order, decree or
injunction of a court of competent jurisdiction, governmental entity or
regulatory body shall be in effect against any of the Parties or their
respective subsidiaries and no proceedings therefor shall have been
threatened or commenced by any governmental entity or regulatory body, in
each case, which prohibits or restricts either (i) the sale and transfer of
the Interglas Assets or (ii) the exercise by Buyer of the Control Option or
the Residual Option.
ARTICLE VI-A
CLOSING CONDITIONS TO THE OBLIGATIONS
OF STAMFORD, CSH AND CS INC.
The obligations of Stamford, CSH and CS Inc. to perform their
respective obligations under this Agreement shall be subject to the
fulfillment on or before the Closing Date of each of the following
conditions, any one or more of which may be waived by Stamford and, after
the Effective Date, by CS Inc.:
Section 6A.1 Consents and Approvals. All necessary consents
and approvals of any United States or any other governmental authority that
are both required for the consummation of the transactions contemplated by
this Agreement shall have been obtained and any waiting period applicable
to the consummation of the transactions contemplated hereby under the HSR
Act and under any applicable antitrust and competition law statutes and
regulations of foreign jurisdictions, or other applicable law, including
the Exon-Xxxxxx Amendment, shall have expired or been terminated.
Section 6A.2 Certain Proceedings. No writ, order, decree or
injunction of a court of competent jurisdiction, governmental entity or
regulatory body shall be in effect against any of the Parties or their
respective subsidiaries, and no proceedings therefor shall have been
threatened or commenced by any governmental entity, which prohibits or
restricts the consummation of the transactions contemplated by this
Agreement.
Section 6A.3 Merger Agreement. The transactions contemplated
by the Merger Agreement shall have been consummated.
ARTICLE VI-B
CONDITIONS TO THE OBLIGATIONS OF CS INC.
AND CS INTERNATIONAL AT THE DEFERRED CLOSING
The obligations of CS Inc. and CS International to perform their
respective obligations at the Deferred Closing under this Agreement shall
be subject to the fulfillment on or before the Deferred Closing Date of
each of the following conditions, any one or more of which may be waived by
Stamford and, after the Effective Date, by CS Inc.:
Section 6B.1 Consents and Approvals. All necessary consents
and approvals of any United States or any other governmental authority that
are both required for the consummation of the sale and transfer of the
Interglas Assets shall have been obtained and any waiting period applicable
to the consummation of the transactions contemplated to be consummated at
the Deferred Closing Date under the HSR Act and under any applicable
antitrust and competition law statutes and regulations of foreign
jurisdictions, or other applicable law, including the Exon-Xxxxxx
Amendment, shall have expired or been terminated.
Section 6B.2 Certain Proceedings. No writ, order, decree or
injunction of a court of competent jurisdiction, governmental entity or
regulatory body shall be in effect against any of the Parties or their
respective subsidiaries, and no proceedings therefor shall have been
threatened or commenced by any governmental entity, which prohibits or
restricts the consummation of the sale and transfer of the Interglas
Assets.
ARTICLE VII
TERMINATION AND ABANDONMENT
Section 7.1 Termination Before Closing. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual written consent of Stamford or, after the
Effective Date, CS Inc., and Buyer;
(b) by Stamford, or, after the Effective Date, CS Inc., if,
without fault of such terminating party, the transactions contemplated to
be consummated at the Closing shall not have been consummated on or before
October 12, 1998, which date may be extended by mutual written consent of
Stamford or, after the Effective Date, CS Inc. and Buyer; or
(c) by Buyer if, without fault of Buyer, the transactions
contemplated to be consummated at the Closing shall not have been
consummated on or before November 12, 1998, which date may be extended by
mutual written consent of Stamford or, after the Effective Date, CS Inc.
and Buyer; or
(d) by either Stamford, or, after the Effective Date, CS
Inc., on the one hand, or Buyer, on the other hand, if any court of
competent jurisdiction in the United States or other governmental body in
the United States shall have issued an order (other than a temporary
restraining order), decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting any or all of the transactions
contemplated to be consummated at the Closing, and such order, decree,
ruling or other action shall have become final and non-appealable; provided
that the party seeking to terminate this Agreement shall have complied with
the provisions of Section 4.3.
(e) by Stamford or, after the Effective Date, CS Inc., if,
without the fault of Stamford, CSH or CS Inc. or its subsidiaries, the
transactions contemplated to be consummated at the Closing shall not have
been consummated on or before the forty-fifth (45th) day following the
filing by Buyer of its application under the HSR Act with respect to the
transactions contemplated to be consummated under this Agreement, which
date may be extended by mutual written consent of Stamford or after the
Effective Date, CS Inc., provided however that neither Stamford nor CS Inc.
may so terminate if on or before such forty-fifth (45th) day, Buyer waives
the financing condition to the Closing contained in Section 5A.3 hereof.
Section 7.2 Termination Before Deferred Closing. This
Agreement, as it relates to the transactions contemplated to be consummated
at the Deferred Closing, may be terminated at any time prior to the
Deferred Closing:
(a) by mutual written consent of Stamford or, after the
Effective Date, CS Inc., and Buyer;
(b) by either Stamford or, after the Effective Date, CS
Inc., on the one hand, or Buyer, on the other hand, if, without fault of
such terminating party, the transactions contemplated to be consummated at
the Deferred Closing shall not have been consummated on or before January
24, 1999, which date may be extended by mutual written consent of Stamford,
or, after the Effective Date, CS Inc. and Buyer; or
(c) by either Stamford or, after the Effective Date, CS
Inc., on the one hand, or Buyer, on the other hand, if any court of
competent jurisdiction or other governmental body shall have issued an
order (other than a temporary restraining order), decree or ruling, or
taken any other action restraining, enjoining or otherwise prohibiting any
or all of the transactions contemplated to be consummated at the Deferred
Closing (or prohibiting Buyer's right to exercise either the Control Option
or the Residual Option) and such order, decree, ruling or other action
shall have become non-appealable; provided that the party seeking to so
terminate shall have complied with the provisions of Section 4.3
Section 7.3 Termination by Buyer-Effective Date. This
Agreement may be terminated by Buyer at any time prior to the Effective
Date, if (a) Stamford has failed to comply in any material respect with any
of the material covenants or agreements contained in this Agreement with
respect to the transactions contemplated to be consummated at the Closing
or the Deferred Closing which are to be complied with or performed by
Stamford at or prior to such date of termination, (b) there exists a breach
or breaches of any representation or warranty of Stamford contained in this
Agreement such that the closing conditions set forth in either Article V-A
or V-B would not be satisfied; provided, however, that if such breach or
breaches are capable of being cured prior to the Closing or the Deferred
Closing, as applicable, termination pursuant to this Section 7.3 shall be
permitted only to the extent such breaches shall not have been cured within
30 days of delivery to either Stamford, or, after the Effective Date, CS
Inc., as the case may be, of written notice of such breach or breaches, or
(c) any event occurs which renders impossible compliance with one or more
of the conditions set forth in Article V-A or V-B, and compliance with such
condition or conditions are not waived by Buyer.
Section 7.4 Termination by Stamford or CS Inc. Effective Date.
This Agreement may be terminated by Stamford at any time prior to the
Effective Date if (a) Buyer shall have failed to comply in any material
respect with any of the material covenants or agreements contained in this
Agreement with respect to the transactions contemplated to be consummated
at the Closing or the Deferred Closing which are to be complied with or
performed by it at or prior to such date of termination, (b) there exists a
breach or breaches of any representation or warranty of Buyer contained in
this Agreement such that the closing conditions set forth in Article VI-A
or VI-B would not be satisfied; provided, however, that if such breach or
breaches are capable of being cured prior to the Closing or the Deferred
Closing, termination pursuant to this Section shall be permitted only to
the extent such breaches shall not have been cured within 30 days of
delivery to Buyer of written notice of such breach or breaches, or (c) any
event occurs which renders impossible compliance with one or more of the
conditions set forth in Article VI-A or VI-B hereof, and compliance with
such condition or conditions are not waived by Stamford.
Section 7.5 Procedure for Termination. In the event of any
termination and abandonment of any transactions contemplated by this
Agreement by either Stamford or, after the Effective Date, CS Inc., on the
one hand, or Buyer, on the other hand, pursuant to this Article VII,
written notice thereof shall forthwith be given to the other.
Section 7.6 Effect of Termination and Abandonment. In the
event of any proper termination of all or part of this Agreement and
abandonment of any transactions contemplated by this Agreement pursuant to
this Article VII, no Party hereto (or any of its directors or officers)
shall have any liability or further obligation to any other Party to this
Agreement to the extent of such termination, except that in such event
nothing herein shall relieve any Party from liability for any breach of
this Agreement.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 8.1 Survival of Representations and Warranties,
Covenants, etc. Except for the respective covenants and other agreements
of the Parties made in this Article VIII and Article IX hereof, the
respective representations, warranties, covenants and agreement of the
Parties shall not survive the Closing or the Deferred Closing, as the case
may be, or any termination of this Agreement under Article VII. This
Section 8.1 shall not limit any covenant or agreement of the Parties which
contemplates performance after the Closing or the Deferred Closing,
including, without limitation, any such covenants and agreements set forth
in Article IV hereof and in the Undertaking.
Section 8.2 Agreements of CSH, CS Inc. and Stamford to
Indemnify. Subject to the terms, conditions and limitations set forth in
Sections 8.1 and 8.5, from and after the Closing, or the Deferred Closing,
as applicable, Stamford, CSH and CS Inc. shall, jointly and severally,
defend, indemnify and hold harmless Buyer, its Affiliates and if
applicable, their respective directors, officers, employees, attorneys,
representatives and agents, and each of the heirs, executors, successors
and assigns of any of the foregoing (each a "Buyer Indemnitee") of Buyer
from and against any costs or expenses (including, without limitation,
reasonable attorneys' fees, investigation costs and remediation costs),
judgments, fines, losses, actions, claims, damages and assessments of any
nature (collectively, "Losses") imposed on, sustained, incurred or suffered
by or asserted against any Buyer Indemnitee that arise out of or relate to
(i) any breach of or failure to perform any covenant to be performed on or
after the Closing Date or the Deferred Closing Date, as applicable, made by
or on behalf of Stamford, CSH or CS Inc. under this Agreement, the Other
Instruments or in any certificate, exhibit or other instrument contemplated
by this Agreement and delivered by Stamford, CHS or CS Inc. in connection
herewith and (ii) the Excluded Liabilities.
Section 8.3 Buyer's Agreement to Indemnify. Subject to the
terms, conditions and limitations set forth in Sections 8.1 and 8.5, from
and after the Closing or the Deferred Closing, as applicable, Buyer shall
defend, indemnify and hold harmless Stamford, CSH and CS Inc. and their
respective Affiliates, and if applicable, their respective directors,
officers, attorneys, representatives and agents and each of the heirs,
executors, successors and assigns of any of the foregoing (each a "Seller
Indemnitee") of Stamford, CSH and CS Inc. from and against any Losses
imposed on, sustained, incurred or suffered by or asserted against any
Seller Indemnitee that arise out of or are the result of (i) any breach of
or failure to perform any covenant to be performed on or after the Closing
Date or the Deferred Closing Date, as applicable, made by or on behalf of
Buyer under this Agreement, the Other Instruments or in any certificate,
exhibit or other instrument contemplated by this Agreement and delivered by
Buyer in connection herewith and (ii) the Assumed Liabilities.
Section 8.4 Indemnification Based on Net Damage. In
calculating amounts payable from a party required to indemnify a party
under this Agreement (the "Indemnifying Party") to a party entitled to
indemnification under this Agreement (an "Indemnified Party"), the amount
of the indemnified Losses shall be computed net of payments received by the
Indemnified Party under any insurance policy or contract with respect to
such Losses.
Section 8.5 Third Party Claims. In the event that a claim for
indemnification ("Claim") involves a claim by a Third Party against the
Indemnified Party, the Indemnifying Party shall notify the Indemnified
Party in writing within ten business days after receipt of written notice
from the Indemnified Party if it agrees to undertake the defense thereof.
The written notice provided to the Indemnifying Party from the Indemnified
Party shall be delivered promptly following the Indemnified Party's
obtaining knowledge of the Claim and shall state the basis of the Claim
with reasonable specificity, including the Section or Sections of this
Agreement alleged to have been breached. If the Indemnifying Party so
notifies the Indemnified Party, then the Indemnifying Party shall control
such defense and shall bear all costs of such defense, provided, that the
Indemnified Party may participate in such settlement or defense through
counsel chosen by it (the fees and expenses of which shall be borne by the
Indemnified Party). Notwithstanding anything in this Section 8.5 to the
contrary, the Indemnifying Party may, with the consent of the Indemnified
Party (which consent shall not be unreasonably withheld), settle or
compromise any action or consent to the entry of any judgment which
includes as a term thereof the delivery by the claimant or plaintiff to the
Indemnified Party of a duly executed written unconditional release of the
Indemnified Party from all liability in respect of such action, which
release shall be reasonably satisfactory in form and substance to counsel
for the Indemnified Party. If the Indemnifying Party does not notify the
Indemnified Party within ten business days after the receipt of the
Indemnified Party's notice of a claim of indemnity hereunder that it elects
to undertake the defense thereof, the Indemnified Party shall have the
right to contest, settle or compromise the claim but shall not thereby
waive any right to indemnity therefor pursuant to this Agreement.
Notwithstanding the foregoing, the Indemnified Party, during the period the
Indemnifying Party is determining whether to elect to assume the defense of
a matter covered by this Section 8.5, may take such reasonable actions as
it deems necessary to preserve any and all rights with respect to the
matter, without such actions being construed as a waiver of the Indemnified
Party's rights to defense and indemnification pursuant to this Agreement.
No failure to provide any notice required by this Section 8.5 shall relieve
the Indemnifying Party of any obligation to indemnify the Indemnified Party
hereunder except to the extent that the Indemnifying Party is actually
prejudiced thereby.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Fees, Expenses and Taxes.
(a) Whether or not the transactions contemplated herein are
consummated pursuant hereto, except as otherwise provided herein, each of
the parties shall pay all of its and its affiliates' respective fees and
expenses (e.g. legal, investment banking, brokerage, financial advisory,
finders', accounting, consulting and bank commitment fees and travel costs)
arising from or relating to this Agreement and the consummation of the
transactions contemplated hereby and thereby and, with respect to Stamford,
arising from the Merger Agreement. Each of the parties shall indemnify and
hold harmless the other parties from and against any and all claims or
liabilities for such fees and expenses incurred by reason of any action
taken by such party or otherwise arising out of the transactions
contemplated by the Merger Agreement or this Agreement by any person
claiming to have been engaged by such party. Buyer shall be responsible
for the payment of any fee, sales tax, transfer tax, filing expense or
other charge incurred in connection with the transfer of the Acquired
Assets.
(b) Each of Buyer, on the one hand, and CSH and CS Inc., on
the other hand, shall provide the other with such assistance and documents,
without charge, as may be reasonably requested by either of them in
connection with the preparation of any Return, the conduct of any audit or
administrative or court proceeding, and any other Tax related matter that
is a subject of this Agreement. Such cooperation and assistance shall be
provided to the requesting Party promptly upon its request.
(c) Unless otherwise required by law, the Parties shall
treat any indemnification payments made under this Agreement as an
adjustment to the Allocable Amount for all Tax purposes, including, without
limitation, in connection with all income Tax Returns and all proceedings
in connection with income Taxes. Each of Buyer, CSH and CS Inc. shall
notify the others in the event any taxing authority is taking or proposing
to take a position inconsistent with the treatment of an indemnification
payment, pursuant to the first sentence of this Section 9.1(c), as an
adjustment to the Allocable Amount.
Section 9.2 Further Assurances. From time to time after the
Closing Date, at the request of another Party hereto and at the expense of
the Party so requesting, each of the parties hereto shall execute and
deliver to such requesting Party such documents and take such other action
as such requesting Party may reasonably request in order to consummate more
effectively the transactions contemplated hereby.
Section 9.3 Notices. All notices, requests, demands, waivers
and other communications required or permitted to be given under this
Agreement shall be in writing and may be given by any of the following
methods: (a) personal delivery; (b) facsimile transmission; (c) registered
or certified mail, postage prepaid, return receipt requested; or (d)
overnight delivery service. Notices shall be sent to the appropriate Party
at its address or facsimile number given below (or at such other address or
facsimile number for such Party as shall be specified by notice given
hereunder):
If to Stamford, to:
Stamford CS Acquisition Corp.
000 Xxxxxxx Xx.
Xxxxxx, XX 00000
(000) 000-0000
Attention: President
If to CS Inc., to:
CS Inc.
000 Xxxxxxx Xx.
Xxxxxx, XX 00000
(000) 000-0000
Attention: President
If to Buyer, to:
Hexcel Corporation
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxx, Esq.
All such notices, requests, demands, waivers and communications shall be
deemed received upon (i) actual receipt thereof by the addressee, (ii)
actual delivery thereof to the appropriate address or (iii) in the case of
a facsimile transmission, upon transmission thereof by the sender and
issuance by the transmitting machine of a confirmation slip that the number
of pages constituting the notice have been transmitted without error. In
the case of notices sent by facsimile transmission, the sender shall
contemporaneously mail a copy of the notice to the addressee at the address
provided for above. However, such mailing shall in no way alter the time
at which the facsimile notice is deemed received.
Section 9.4 Severability. Should any provision of this
Agreement for any reason be declared invalid or unenforceable, such
decision shall not affect the validity or enforceability of any of the
other provisions of this Agreement, which remaining provisions shall remain
in full force and effect and the application of such invalid or
unenforceable provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall be valid and enforced to
the fullest extent permitted by law.
Section 9.5 Binding Effect; Assignment. This Agreement and
all of the provisions hereof shall be binding upon and shall inure to the
benefit of the Parties and their respective successors and permitted
assigns. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, directly or indirectly, including,
without limitation, by operation of law, by any Party hereto without the
prior written consent of the other parties hereto; provided, however that
Buyer may assign this Agreement, in whole or in part, to any direct or
indirect subsidiary of Buyer without the prior written consent of the other
Parties hereto, but such assignment shall not relieve Buyer of any of its
obligations hereunder. Furthermore, this Section 9.5 shall not preclude,
and Buyer's consent is not required, for the mergers of Stamford with and
into CSH as contemplated by the Merger Agreement followed by the Permitted
Merger following the Effective Date and the transfer of Stamford's rights
hereunder caused by operation of law thereby.
Section 9.6 Bulk Sales Law. Buyer hereby waives compliance by
CS Inc. with the requirements and provisions of any "bulk-transfer" laws of
any jurisdiction that may otherwise be applicable with respect to the
transactions contemplated by this Agreement.
Section 9.7 No Third Party Beneficiaries. This Agreement is
solely for the benefit of Stamford and, after the Effective Date, CSH and
CS Inc. and their respective successors and permitted assigns, with respect
to the obligations of Buyer under this Agreement, and for the benefit of
Buyer, and its respective successors and permitted assigns, with respect to
the obligations of Stamford and, after the Effective Date, CSH and CS Inc.,
under this Agreement, and this Agreement shall not be deemed to confer upon
or give to any other third party any remedy, claim, liability,
reimbursement, cause of action or other right.
Section 9.8 Interpretation.
(a) The article and Section headings contained in this
Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
(b) As used in this Agreement, the term "person" shall mean
and include an individual, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any department or
agency thereof.
(c) As used in this Agreement, the term "Affiliate" shall
have the meaning set forth in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.
Section 9.9 Jurisdiction and Consent to Service. Without
limiting the jurisdiction or venue of any other court, each of the Parties
(i) agree that any suit, action or proceeding arising out of or relating to
this Agreement may be brought solely in the state or federal courts of New
York; (ii) consent to the exclusive jurisdiction of each such court in any
suit, action or proceeding relating to or arising out of this Agreement;
(iii) waive any objection which it may have to the laying of venue in any
such suit, action or proceeding in any such court; and (iv) agree that
service of any court paper may be made in such manner as may be provided
under applicable laws or court rules governing service of process.
Section 9.10 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
(regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof) as to all matters, including but
not limited to matters of validity, construction, effect, performance and
remedies.
Section 9.11 Entire Agreement. This Agreement, the Disclosure
Schedules, and the Exhibits and other documents referred to herein or
delivered pursuant hereto which form a part hereof constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and
oral, between the parties or any of them with respect to the subject matter
hereof.
Section 9.12 Amendment, Modification and Waiver. This
Agreement may be amended, modified or supplemented at any time only by
mutual written agreement of Stamford and, after the Effective Date, CS Inc.
and Buyer. Any failure of Stamford, CSH and CS Inc., on the one hand, or
Buyer, on the other hand, to comply with any term or provision of this
Agreement may be waived, with respect to Buyer, by Stamford and, after the
Effective Date, CS Inc., and, with respect to Stamford, CS Inc., by Buyer,
by an instrument in writing signed by or on behalf of the appropriate
party, but such waiver or failure to insist upon strict compliance with
such term or provision shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure to comply.
Section 9.13 Specific Performance. The parties acknowledge and
agree that any breach of the terms of this Agreement would give rise to
irreparable harm for which money damages would not be an adequate remedy
and accordingly the parties agree that, in addition to any other remedies,
each shall be entitled to enforce the terms of this Agreement by a decree
of specific performance without the necessity of proving the inadequacy of
money damages as a remedy.
Section 9.14 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
Section 9.15 Effective Date. This Agreement shall be deemed an
agreement between Stamford and Buyer until executed by CSH and CS Inc., at
which time it shall be deemed to be an agreement among Buyer, CSH (as
successor to Stamford) and CS Inc. Stamford shall cause CSH and CS Inc. to
execute this Agreement immediately following the Effective Date. Without
limiting the generality of the foregoing, all representations, warranties,
covenants or other obligations of any kind made or incurred by CSH and/or
CS Inc. as a result of the execution and delivery of this Agreement shall
be deemed to have been made as of the time of its delivery of a signature
page hereto.
ARTICLE X
CERTAIN DEFINITIONS
For the purposes of this Agreement, the following words and
phrases shall have the following meanings:
"Acquired Assets" has the meaning assigned in Section 1.1(a).
"Acquired Intellectual Property" has the meaning assigned in
Section 1.1(a)(ix).
"Affected Employee" has the meaning assigned in Section 4.7(a).
"Affiliate" has the meaning assigned in Section 9.8(c).
"Agreement" means this agreement, dated as of July 23, 1998,
together with any amendments thereto, by and among CSH, CS Inc., Stamford
and Buyer.
"Allocable Amount" has the meaning assigned in Section 4.12.
"Allocation Statement" has the meaning assigned in Section 4.12.
"Antitrust Division" has the meaning assigned in Section 4.3.
"Asahi" means Asahi Chemical Industry Co., Ltd. a corporation
organized under the laws of Japan.
"ASCO" means Asahi-Xxxxxxxx Co. Ltd., a corporation organized
under the laws of Japan.
"ASCO Distributor Agreement" means that certain Exclusive
Distributor Agreement, dated as of March 15, 1971 and amended on October
21, 1983, among CS International, ASCO and Asahi.
"ASCO Joint Venture Agreement" means that certain Agreement,
dated as of September 18, 1970 and amended on June 30, 1997, by and among
CS International, Asahi and Fukui Seiren Co., Ltd.
"ASCO License Agreement" means that certain Technical
Information, Technical Assistance and Trademark License Agreement, dated as
of March 15, 1971, between Asahi and CS Inc.
"ASCO Shares" means all of the capital stock in ASCO owned by Cs
International.
"Assumed Liabilities" has the meaning assigned in Section 1.1(d).
"Assumed Taxes" has the meaning assigned in Section 1.1(d)(ii).
"BA Acquisition Debt" means the indebtedness incurred by
Stamford, CSH or CS Inc. pursuant to that certain commitment letter of Bank
of America National Trust and Savings Association, dated July 7, 1998.
"Base Consideration" has the meaning assigned in Section 1.2(a).
"Business Records" has the meaning assigned by Section 4.11.
"Buyer" means Hexcel Corporation.
"Buyer Indemnitee" has the meaning assigned by Section 8.2.
"Buyer's 401(k) Plans" has the meaning assigned in Section 4.16.
"Claim" has the meaning assigned by Section 8.5.
"Closing" means the closing of the transactions (other than the
transactions contemplated to occur at the Deferred Closing) described in
Section 1.3(a).
"Closing Xxxx of Sale and Assignment" means the duly executed
xxxx of sale and assignment agreement, substantially in the form attached
hereto as Exhibit B, which Stamford and CS Inc. will deliver to Buyer at
the Closing effecting the sale, assignment, transfer and delivery of the
Acquired Assets other than the Interglas Assets.
"Closing Date" means the date of the Closing as determined
pursuant to Section 1.3(a).
"Closing Undertaking" means the duly executed undertaking,
substantially in the form attached hereto as Exhibit C, whereby Buyer will
assume and agree to pay and discharge the Assumed Liabilities to be assumed
at the Closing.
"Code" means the Internal Revenue Code of 1986, as amended. All
citations to the Code, or to the Treasury Regulations promulgated
thereunder, shall include any amendments or substitute or successor
provisions thereto.
"Commitment Letter" means the commitment letter of Credit Suisse
First Boston in favor of Buyer, a copy which has been previously delivered
to Stamford.
"Common Stock" means the shares of Common Stock, par value $.01
per share, of CSH.
"Control Option" has the meaning assigned to it in the Merger
Agreement.
"CSH" means Xxxxx-Xxxxxxxx Holdings, Inc., a Delaware
corporation.
"CS Inc." means Xxxxx-Xxxxxxxx, Inc., a Delaware corporation.
"CS International" means CS International, Inc., a Delaware
corporation.
"CS Inc. Plans" has the meaning assigned in Section 4.16.
"Deeds" has the meaning assigned in Section 1.1(b).
"Deferred Closing" has the meaning assigned in Section 1.3(b).
"Deferred Closing Xxxx of Sale and Assignment" means the duly
executed xxxx of sale and assignment agreement, substantially in the form
attached hereto as Exhibit G, which Stamford and CS Inc. will deliver to
Buyer at the Deferred Closing effecting the sale, assignment, transfer and
delivery of the Interglas Assets.
"Deferred Closing Date" means the date of the Closing as
determined pursuant to Section 1.3 (b).
"Deferred Closing Undertaking" means the duly executed
undertaking, substantially in the form attached hereto as Exhibit J,
whereby Buyer will assume and agree to pay and discharge the Assumed
Liabilities to be assumed at the Deferred Closing.
"Deferred Purchase Price" has the meaning assigned in Section
1.2(b).
"Domestic Subsidiary" has the meaning assigned in Section
1.1(a)(xvi).
"Effective Date" has the meaning assigned in Recital B.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Assets" has the meaning assigned in Section 1.1(c).
"Excluded Liabilities" has the meaning assigned in Section
1.1(e).
"Filing Party" has the meaning assigned in Section 4.17.
"FIRPTA Certificate" has the meaning assigned in Section 1.4(d).
"FTC" has the meaning assigned by Section 4.3.
"HSR Act" has the meaning assigned in Section 2A.3(b).
"Indemnified Party" has the meaning assigned in Section 8.4.
"Indemnifying Party" has the meaning assigned in Section 8.4.
"Intellectual Property" shall mean throughout the world (i)
Patents, (ii) Trademarks, (iii) Trade Names, (iv) Know-how, (v) shop rights
and (vi) copyrights.
"Interglas" shall mean CS Interglas AG, a corporation formed
under the laws of Germany.
"Interglas Agreement" has the meaning assigned in the Merger
Agreement.
"Interglas Assets" has the meaning set forth in Section
1.1(a)(xiii).
"Interglas Heads of Agreement" means that certain Heads of
Agreement, dated as of March 30, 1998, by and between CS International and
the Xxxxxxxx Group.
"Interglas Shareholders Agreement" means that certain
Shareholders Agreement, dated as of January 7, 1993, by and between CS Inc.
and the Xxxxxxxx Group.
"Interglas Shares" shall mean all of the capital stock in
Interglas owned by CS International.
"Joint Venture" has the meaning assigned in the Merger Agreement.
"Know-how" shall mean all trade secrets, know-how (including
product know-how and use and application know-how), formulas, processes,
product designs, specifications, quality control procedures, manufacturing,
engineering and other drawings, technology, technical information, safety
information, lab journals, engineering data and design and engineering
specifications, research records, research and development information and
reports, market surveys and all promotional literature, customer and
supplier lists and similar data.
"Lease" has the meaning assigned in Section 4.19.
"Leased Properties" has the meaning assigned in Section 4.19.
"Liens" means all mortgages, pledges, security interests, liens,
changes, options, easements, rights of way or other encumbrances.
"Losses" has the meaning assigned in Section 8.2.
"Material Adverse Effect" means an event which has a material
adverse effect on the business, operations, financial condition or results
of operation of CSH and CS Inc. and its subsidiaries, taken as a whole, or
materially impairs the value of usefulness of the Acquired Assets taken as
a whole.
"Merger Agreement" has the meaning assigned in Recital A.
"Non-Assigned Contracts" has the meaning set forth in Section
4.13.
"Non-Filing Party" has the meaning assigned in Section 4.17.
"Other Instruments" has the meaning assigned in Section 1.1(b).
"Parties" has the meaning set forth in the preamble.
"Patents" shall mean patents (including all reissues, divisions,
re-examinations, continuations, continuations in part and extensions
thereof), patent applications and patent disclosures docketed and all other
patent rights.
"Permitted Liens" means mechanics', carriers', workers',
repairers', materialmens', warehousemens' and other similar Liens arising
or incurred in the ordinary course of business consistent with past
practice and which would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
"Permitted Mergers" means the merger of (i) Stamford with and
into Xxxxx-Xxxxxxxx Holdings, Inc. and (ii) CSH with and into CS Inc.
following the Effective Date.
"person" has the meaning assigned in Section 9.8(b).
"Plans" means the CS Inc. Pension Plan, the CS Inc. Service
Related Pension Plan, and the CS Inc., 401(k) Plan.
"Prior Occurrences" has the meaning assigned by Section 4.8.
"Purchase Price" has the meaning set forth in Section 1.2(a).
"Return" means any report, return or other information filed with
or required to be supplied to a taxing authority in connection with Taxes.
"Schedule(s)" means any schedule(s) included in the Disclosure
Schedule.
"Seller Indemnitee" has the meaning assigned in Section 8.3
"Stamford" means Stamford CS Acquisition Corp.
"Taxes" means all taxes, assessments, charges, duties, fees,
levies or other governmental charges, including, without limitation, all
Federal, state, local, foreign and other income, gross receipts, franchise,
profits, capital gains, capital stock, transfer, sales, use, occupation,
property, excise, severance, windfall profits, stamp, license, payroll,
withholding, social security and other taxes, assessments, charges, duties,
fees, levies or other governmental charges of any kind whatsoever (whether
payable directly or by withholding and whether or not requiring the filing
of a Return), and all estimated taxes, deficiency assessments, additions to
tax, penalties and interest.
"Tech-Fab" means Xxxxx-Xxxxxxxx Tech-Fab Company, a general
partnership formed under the laws of the State of New York.
"Tech-Fab Distribution Agreement" means that certain Know-How
License and Distribution Agreement, dated as of December 19, 1984.
"Tech-Fab Cross Distributorship Agreement" means that certain
Exclusive Cross-Distributorship Agreement, dated as of December 19, 1984,
between Xxx Xxxx D'Xxxxxxx Xxxxxxxx et Compagnie and Tech-Fab.
"Tech-Fab Joint Venture Agreement" means that certain Joint
Venture Agreement, dated as of December 18, 1984, by and between Vabobel
B.V. and Xxxxx-Xxxxxxxx Holding Corporation.
"Tech-Fab Partnership Interests" means all of the partnership
interests in Tech-Fab owned by Xxxxx-Xxxxxxxx Holding Corporation.
"Third Parties" means any parties other than the Parties to this
Agreement and their respective Affiliates.
"Trademarks" shall mean trademarks and service marks,
registrations thereof, pending applications therefor and such unregistered
rights as may exist through use.
"Trade Names" shall mean trade names, brand marks, trade dress,
brand names, logos and all other names and slogans or product goodwill for
which no trademark registration has been obtained and for which no
application is pending.
"Unrelated Assets" means assets acquired by CSH or CS Inc. on or
after the Effective Date (other than any assets acquired in the ordinary
course of CS Inc.'s business) that are (i) unrelated to the Acquired
Assets, Leased Properties or the related business and (ii) acquired by
means of exchange, contribution or transfer to CSH or CS Inc. by any
shareholder thereof (including by way of merger).
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the
date first above written.
STAMFORD CS ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Title: President
XXXXX-XXXXXXXX HOLDINGS, INC.
By: ____________________________
Title: _________________________
XXXXX-XXXXXXXX, INC.
By: _____________________________
Title: __________________________
HEXCEL CORPORATION
By: /s/ Xxx X. Xxxxxxxx
Title: Senior Vice President, General Counsel
SCHEDULES AND EXHIBITS HAVE BEEN INTENTIONALLY OMITTED
