Amendment to
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT AMENDMENT (this "Amendment"), is entered into this
11th day of February 2001 to be effective as of November 15, 2000, by and among
Imo Industries Inc., a Delaware corporation, (the "Seller"), TFX Acquisition,
Inc., a Delaware corporation ("Buyer"), and Teleflex Incorporated, a Delaware
corporation ("Parent"). Unless otherwise defined herein, all capitalized terms
have the meanings set forth in the Asset Purchase Agreement dated November 15,
2000 by and among the Seller, Buyer and Parent (the "Agreement").
EXPLANATORY STATEMENT
WHEREAS, the Buyer has agreed to purchase and acquire from
Seller and Seller has agreed to sell, assign and transfer to Buyer, the Assets,
and the Buyer has agreed to assume all of the Liabilities other than the
Excluded Liabilities pursuant to the Agreement;
WHEREAS, the Buyer desires to have the benefit of certain
insurance coverage currently available to the Seller, the Subsidiaries and the
Affiliates for the Liabilities which coverage is not provided to Buyer under the
Agreement and the Seller desires to provide the benefit of such coverage to the
Buyer subject to the terms and conditions set forth herein;
WHEREAS, the Seller and Buyer desire to remove IMO Industries
Pension Trustee Limited, a UK subsidiary, from Schedule 1 of the Agreement and
to exclude all liability associated with the Imo Industries Pension and Life
Assurance Plan from the Liabilities; and
WHEREAS, the Buyer, Parent and Seller desire to amend the
Agreement to provide that the Closing shall occur with respect to all of the
Assets other than those relating to the Affiliate identified on Schedule 1-A
hereto, the Assets of which are not capable of transfer under the laws of their
respective jurisdictions and to provide for the escrow of the portion of the
Purchase Price until such time as the Assets are transferred to Buyer.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and intending to be legally bound hereby, the parties
agree as follows:
1. Name of Buyer. The term "TFX Acquisition Incorporated" shall
be deleted and replaced with "TFX Acquisition, Inc." throughout the Agreement.
2. Assumption of Liabilities. The following additional text is
hereby added to the end of Section 2.02:
", subject to the provisions of Section 5.12 hereof.
3. Excluded Liabilities. The following section 2.03(m) is hereby
added to Section 2.03 of the Agreement:
2.03(m) all liabilities and obligations of Seller, the
Subsidiaries or their Affiliates with respect to the Imo
Industries Pension and Life Assurance Plan the trustee of
which is Imo Industries Pension Trustee Limited, a UK
corporation.
4. Insurance. The following additional text is hereby added to
the end of Section 5.12:
Seller agrees that, to the extent that Seller, the Subsidiaries or the
Affiliates are named insureds on property, product, general liability, workers'
compensation and auto insurance policies covering Liabilities assumed by Buyer
at Closing, Seller will use its best efforts to entitle Buyer to the proceeds
(if any) of such insurance policies for Liabilities occurring prior to the
Closing ("Prior Claims"). The parties' agreement hereunder shall be subject to
the following terms and conditions:
(a) Payments. In the event that Seller makes, or is obligated
to make, any payment or suffers any loss in respect of or in relation to any
Prior Claim, after the Closing, in an amount that exceeds the amount Seller
actually receives in payment from its insurer or insurers, Buyer shall promptly
reimburse Seller, dollar for dollar, for any such payment by Seller in excess of
the amount actually paid by said insurer or insurers to or for the benefit of
Seller. It is the intention of Buyer and Seller that Seller will not suffer or
incur any loss or liability for any Prior Claim after the Closing. In addition,
any and all payments or expenses attributable to the Xxxxx Division which are or
become due to any insurer including, but not limited to, any retrospective
adjustment payments, true ups, state assessments, taxes or any other charges
(the "Adjustment Payments") shall be promptly reimbursed to Seller by Buyer. The
parties understand and agree that Buyer shall not be required to pay or
reimburse Seller for any amounts (other than Adjustment Payments) paid by Seller
prior to Closing in connection with any Prior Claim. Retrospective adjustments
actually paid to Seller (if any) from any xxxxxxx'x compensation carrier
attributable to the Xxxxx Division for periods following the Closing shall be
promptly paid by Seller to Buyer. Any direct payment to either party or its
affiliates intended for the other under this Section 5.12 shall be promptly paid
to the other as appropriate.
(b) Self-Insurance, Retention, and Deductibles. Buyer shall be
responsible for and as appropriate shall pay or otherwise be responsible for or
satisfy all self-insured amounts, retention payments and deductible payments
related to any of Seller's policies of insurance associated with any Prior Claim
and which are unpaid or unsatisfied at Closing or which become due after Closing
subject to any applicable limitations under such policies of insurance on the
aggregate amount of such self-insured amounts, retention payments and deductible
payments; provided, however, that, in the event of a dispute concerning the
applicability of a payment or satisfaction of the same, the decision of the
applicable insurer shall control, subject to the provisions set forth in Section
(f) below.
(c) Payments in Excess of Seller's Aggregate Coverage. In the
event that Seller's Aggregate Available Insurance Policy Limits (as defined
below), under any applicable policies are exceeded during any policy year in
which any of Seller's insurers have made payments in respect of or relating to
Prior Claims, Buyer shall reimburse Seller, dollar for dollar, for any and all
losses incurred by Seller that exceed the Seller's Aggregate Available Insurance
Policy Limits and which, in the reasonable judgement of Seller, would have been
insured but for Seller's Aggregate Available Insurance Policy Limits having been
exceeded regardless of whether such claims are Prior Claims; provided, however,
that the total amount to be reimbursed by Buyer shall not exceed the aggregate
amount paid by the Seller's insurers on all Prior Claims for that insurance
year. For purposes of this paragraph, Aggregate Available Insurance Policy
Limits shall mean the total face value of Seller's insurance policies for a
given policy year not including self insurance, deductible or policies issued by
insolvent insurers.
(d) Management of Prior Claims; Cooperation. Buyer shall, at
its sole expense, assume responsibility as of the Closing Date for the
management of all Prior Claims. In the event that any of Seller's insurers
requires that Seller manage or administer a Prior Claim or that Seller or Buyer
use the services of a third-party administrator or carrier for purposes of
managing or administering such Prior Claim, the Buyer, at its sole expense,
shall undertake to manage or administer the Prior Claim or obtain a third-party
administrator, whichever is required by the Seller's insurer. From and after the
Closing Date, Buyer shall use its best efforts to cooperate with Seller in
connection with the management and administration of Prior Claims and shall
promptly provide all information and reports required or reasonably requested by
Seller, its insurers and insurance brokers. Buyer shall upon receipt or
production provide copies of all correspondence between Buyer and any insurer
concerning coverage, reservations of rights, exhaustion and all other matters
relating in any way to the Seller's insurance.
(e) No Representation or Warranties. Seller makes no
representations or warranties of any kind concerning any of its insurance
policies and expressly does not represent or warrant that any of the policies
are valid, enforceable or in full force and effect; are sufficient for
compliance with any requirements of law; insure against risks of the kind
customarily insured against and in amounts customarily carried by corporations
similarly situated; or provide adequate insurance coverage for the Liabilities.
Seller shall have no obligation to keep in effect any insurance coverage except
as set forth in the first paragraph of this Section 5.12. Seller shall upon
request provide Buyer copies of any applicable insurance policy.
(f) Insurance Dispute Resolution. In the event of a
declination of coverage or a reservation of right by an insurer in connection
with any Prior Claim or in the event that any dispute arises between the Buyer
and Seller's insurer concerning coverage for a Prior Claim, Buyer shall have the
right at its sole cost and expense to contest, resolve or settle with an insurer
such declination of coverage, reservation of right or dispute provided that
Buyer first provides written notice to Seller of its intention to contest,
resolve or settle and provides Seller with such information as Seller may
reasonably request including, but not limited to, correspondence between the
insurers and Buyer and reports on the basis and effect of such dispute. Any such
contest, resolution or settlement is expressly subject to Seller's prior
approval, which shall not be unreasonably withheld. In no event shall Buyer be
entitled to any resolution or settlement, compromise or condition that results
in any alteration, amendment or termination of a policy of Seller's or the terms
and conditions of any of Seller's insurance contracts or policies including, but
not limited to, policy "buy backs" and site releases. Buyer shall fully
indemnify and defend Seller in any action by an insurer (or any other party
making a claim against such insurance contracts or policies) relating to any
dispute or arising out of or related to insurance, claims made or proceeds paid
in respect of Prior Claims, including, but not limited to, claims and demands of
reimbursement. Seller agrees that it will provide such reasonable assistance
including the execution of consents, documents and instruments as reasonably
requested by Buyer and which Seller, in its sole judgment, deems appropriate to
fully effectuate the purposes of this Section 5.12.
(g) Duty to Defend. If any Prior Claim exhausts a policy of
insurance that provides the Seller with a "Duty to Defend" and the remaining
following or excess policies of Seller do not provide such "Duty to Defend",
Buyer shall reimburse Seller for Seller's defense costs to the same extent and
upon the same terms as such would be provided under the exhausted policy of
insurance that provided Seller with a "Duty to Defend" regardless of whether
such defense costs are related to Prior Claims; provided however, that Buyer's
obligations hereunder shall be limited to the aggregate amount paid in respect
of a Prior Claim under that policy and do not include any defense costs actually
reimbursed by an insurer to Seller.
5. Schedule 1. Schedule 1 of the Agreement is hereby amended by
deleting the reference to Imo Pension Trustee Limited appearing on Schedule 1
of the Agreement.
6. Compensation and Employee Benefits. The last sentence in
Section 5.06(a) is hereby deleted in its entirety and replaced with the
following sentence in lieu thereof:
Effective as of the Closing Date, Buyer shall assume all of Seller's
obligations to the Continuing Employees, including, but not limited to,
assumption of Seller's obligations under the Transition Agreement
described on Schedule 5.06(a) which Buyer acknowledges and agrees
remains in effect notwithstanding the reference to January 31, 2001 as
its termination date if no sale of the Xxxxx Division has occurred (all
of which shall be deemed part of the Liabilities), provided, however,
that the obligation to pay retention benefits under the Transition
Agreement will remain the responsibility of Seller.
7. Compensation and Employee Benefits. Section 5.06(e) is hereby
deleted in its entirety and replaced with the paragraph in lieu thereof:
(e) Retirement Plan for Hourly Employees. Sponsorship of the Retirement
Plan for Hourly Employees, Xxxxx Controls Division, Imo Industries Inc. (the
"Hourly Employees Plan") shall be transferred from Seller to Parent effective as
of the Closing Date, and the assets of the Hourly Employees Plan shall be
transferred from the Seller's master trust to a trust maintained by Parent for
the Hourly Employees Plan; provided that the assets of the Hourly Employees Plan
are sufficient on a plan termination basis to be eligible on the Closing Date
for standard termination pursuant to Section 4041 of ERISA without the Seller or
the ERISA Affiliates being required to make any additional contributions, it
being understood that if the assets of the Hourly Employees Plan are not
sufficient as described in this Section 5.06(e), then neither Parent nor Buyer
shall be under any obligation to accept any transfer of the sponsorship or the
assets or liabilities of the Hourly Employees Plan.
8. Delivery of Documents and Assets. The last sentence of
Section 6.02 is hereby deleted in its entirety and the following sentences are
substituted in lieu thereof:
The Assets conveyed at Closing shall include the Shares and the
Seller's interests in the Affiliates to the extent that such Shares and
Seller's interests in the Affiliates are capable of being conveyed
under the laws of their respective jurisdiction on the Closing Date. To
the extent that such Shares and the Seller's interests in the
Affiliates cannot be conveyed on the Closing Date, the parties agree to
enter into escrow agreements providing, among other things, for the
placement in escrow of (i) US $1,000,000 pending the conveyance by
Seller to Buyer of the Chinese joint venture interest in Shanghai Dong
Xxxx Xxxxx Control Cable Co., Ltd.; and (ii) US $1,000,000 pending the
completion of the proceeding of the High Court of the Republic of
Singapore declaring that Imo Industries Pte. Ltd. may rectify its
Register of Members by entering the name of Seller as holder of the
shares of Imo Industries Pte. Ltd. as of the Closing Date. Subject to
the terms of the escrow agreements, the parties further agree to use
their reasonable best efforts to promptly obtain the necessary consents
to effect the conveyances and release the funds to Seller and transfer
the Shares and interests in the Affiliates to Buyer.
9. Delivery by Seller. Section 8.02(e) is hereby deleted in its
entirety and the following Section 8.02(e) is substituted in lieu thereof:
(e) Certificates representing the Shares, accompanied by duly
executed stock powers in proper form for transfer; provided, however,
that any Shares that are not transferred pending receipt of certain
third-party approvals shall be transferred to Buyer immediately upon
receipt by Seller of the required third-party approvals and the funds
escrowed in connection with the Shares that do not transfer at Closing
shall be released to Seller in accordance with the escrow agreements to
be entered into among Buyer, Seller and Parent;
10. Delivery by Buyer. Section 8.03(b)(iii) is hereby deleted in
its entirety and the following Section 8.03(b)(iii) is substituted in lieu
thereof:
(iii) such other instruments or documents as Seller may
reasonably request as are necessary to assure the assumption by Buyer
of all of the Liabilities assumed by Buyer pursuant to this Agreement
and the transactions contemplated hereunder, including, but not limited
to, an escrow agreement for any Assets that are not conveyed at Closing
and a transition services agreement providing for the provision of
certain services by Seller to Buyer following Closing.
11. Indemnification by Seller. Section 9.02 is hereby amended to
include Section 5.12 in the definition of Excluded Covenants contained therein.
12. Benefit and Assignment. The third sentence of Section 12.06
is hereby deleted in its entirety and the following sentence is substituted in
lieu thereof:
Notwithstanding the foregoing, Buyer or any permitted assignee
of Buyer may assign this Agreement and any and all rights hereunder, in
whole or in part, to Parent or any subsidiary of Parent, so long as
Parent unconditionally guarantees performance thereof by the assignee.
13. Miscellaneous.
(a) Binding Effect. This Amendment shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
(b) Entire Agreement. The Agreement together with this
Amendment, constitutes the entire understanding between the parties with respect
to the obligations of the parties with respect to the subject matter hereof, and
supersedes and replaces all prior agreements, understandings, writings, and
discussions between the parties relating to the subject matter of those
agreements. Except as modified by this Amendment, all other terms and conditions
of the Agreement remain in full force and effect.
IN WITNESS WHEREOF, each of the parties hereto has executed
this Amendment to Asset Purchase Agreement, or has caused this Amendment to be
duly executed and delivered in its name on its behalf, all as of the day and
year first above written.
SELLER
IMO INDUSTRIES INC.
By:
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Name:
Title:
BUYER
TFX ACQUISITION, INC.
By:
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Name:
Title:
PARENT
TELEFLEX INCORPORATED
By:
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Name:
Title:
Schedule 1-A
AFFILIATE INTERESTS NOT TRANSFERRING AT CLOSING
Affiliate: Shanghai Dong Xxxx Xxxxx Control Cable Co., Ltd. China
