Exhibit 10.1
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ASSET PURCHASE AGREEMENT
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AMONG
CELITE HOLDINGS CORPORATION,
CELITE CORPORATION
and
MANVILLE SALES CORPORATION
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July 1, 1991
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TABLE OF CONTENTS
Page
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I. DEFINITIONS .................................................. 3
II. TRANSFER OF ASSETS AND LIABILITIES
2.01 Assets to be Sold ............................................ 11
2.02 Purchase Price ............................................... 14
2.03 Estimated Cash Payment ....................................... 16
2.04 Liabilities to be Assumed by Buyer ........................... 17
2.05 Closing; Certain Deliveries .................................. 18
(a) Closing .............................................. 18
(b) Deliveries by Seller ................................. 19
(c) Deliveries by Buyer and New Celite ................... 20
2.06 Preliminary Financial Statements ............................. 21
2.07 Closing Date Financial Statements ............................ 21
2.08 Final Computation of Cash Purchase Price and Adjustment
Payment ...................................................... 23
III. RELATED MATTERS
3.01 Transitional Services Agreement .............................. 24
3.02 Perlite Agreement ............................................ 24
3.03 Access to Books and Records .................................. 24
3.04 Employees; Pensions; Thrift Plan ............................. 25
(a) Employees ............................................ 25
(b) Pension and Thrift Plans ............................. 27
(c) Welfare Plans ........................................ 34
(d) Workers' Compensation ................................ 36
(e) Severance; Break-in-Service; Shut-Down Liabilities;
Accrued Vacation and Sick Leave ...................... 36
(f) Employee Bonus and Incentive Plans ................... 37
3.05 Seller's Accounts Receivable; Seller's Accounts Payable ...... 37
3.06 Defective Goods, Returns and Retentions ...................... 38
3.07 Undelivered Merchandise ...................................... 39
3.08 Insurance Policies ........................................... 39
3.09 Computer Software Agreement .................................. 40
IV. REPRESENTATIONS AND WARRANTIES OF SELLER
4.01 Organization, Etc ............................................ 40
4.02 Authority .................................................... 41
4.03 Execution and Binding Effect ................................. 41
4.04 Consents and Approvals; No Violation ......................... 41
4.05 Financial Statements ......................................... 42
4.06 Inventory .................................................... 43
4.07 Absence of Certain Changes or Events ......................... 44
4.08 Employee Benefit Plans; ERISA ............................... 45
4.09 Labor Relations .............................................. 48
4.10 Real Property ................................................ 49
4.11 Leasehold Interests .......................................... 53
4.12 Unpatented Mining Claims, Surface Rights and Water Rights .... 54
4.13 Personal Property ............................................ 55
4.14 Title to Assets .............................................. 55
4.15 Condition of Assets .......................................... 55
4.16 Patents, Trademarks and Copyrights ........................... 56
4.17 Disclosure ................................................... 57
4.18 Insurance .................................................... 57
4.19 Certain Contracts and Commitments ............................ 57
4.20 Ability to Conduct Business .................................. 58
4.21 Compliance with Applicable Law ............................... 59
4.22 Litigation ................................................... 60
4.23 Warranties and product Liability ............................. 60
4.24 Environmental Matters ........................................ 61
4.25 Brokers and Finders .......................................... 63
V. REPRESENTATIONS AND WARRANTIES OF BUYER AND NEW CELITE
5.01 Organization, Etc ............................................ 63
5.02 Authority .................................................... 63
5.03 Execution and Binding Effect ................................. 64
5.04 Consent and Approvals; No Violation .......................... 64
5.05 Funds ........................................................ 65
5.06 Brokers and Finders .......................................... 65
VI. OTHER OBLIGATIONS OF THE PARTIES
6.01 Conduct of Business of the U.S. Filtration and Minerals
Business Pending the Closing ................................. 65
6.02 Access to Information and Records ............................ 66
6.03 Public Announcements ......................................... 67
6.04 Furnishing Information ....................................... 67
6.05 Certain Notifications ........................................ 67
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6.06 Best Efforts ................................................. 68
6.07 Proration of Taxes and Certain Charges ....................... 68
6.08 Non-Competition .............................................. 69
6.09 WARN ......................................................... 71
6.10 Refil, S.A. Commission Payments .............................. 71
6.11 Reclamation .................................................. 71
6.12 Pumicite Deposit ............................................. 72
VII. CONDITIONS TO BUYER'S OBLIGATIONS
7.01 Representations and Warranties True .......................... 73
7.02 Performance of Seller ........................................ 73
7.03 Opinion of Counsel to Seller ................................. 73
7.04 Authorization of Sale of Assets; Consents .................... 73
7.05 No Proceeding or Litigation .................................. 74
7.06 Simultaneous Closing of the Other Agreements ................. 74
7.07 Documents .................................................... 75
7.08 Surveys ...................................................... 75
7.09 Title Insurance Commitments .................................. 75
7.10 Officers' Certificates ....................................... 75
VIII. CONDITIONS TO SELLER'S OBLIGATIONS
8.01 Representations and Warranties True .......................... 76
8.02 Performance of Buyer and New Celite .......................... 76
8.03 Opinion of Counsel to Buyer .................................. 76
8.04 Authorization of Sale of Assets; Consents .................... 76
8.05 No Proceeding or Litigation .................................. 77
8.06 Officers' Certificate ........................................ 77
8.07 Simultaneous Closing of the Other Agreements ................. 78
8.08 Documents .................................................... 78
IX. SURVIVAL OF WARRANTIES, INDEMNIFICATION
9.01 Survival of Warranties ....................................... 78
9.02 Agreements to Indemnify ...................................... 78
(a) Indemnification by Seller ............................ 78
(b) Limitations on Indemnification by Seller ............. 79
(c) Indemnification by Buyer ............................. 80
(d) Limitations on Indemnification by Buyer .............. 81
(e) Proration of Claims .................................. 82
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9.03 Procedures Regarding Indemnification ......................... 83
X. TERMINATION, AMENDMENT AND WAIVER
10.01 Termination of Agreement ..................................... 84
10.02 Procedure and Effect of Termination .......................... 85
10.03 Amendment, Extension and Waiver .............................. 85
XI. MISCELLANEOUS
11.01 Legal and Other Fees ......................................... 85
11.02 Payment of Transfer Taxes and Tax Filings .................... 86
11.03 Waiver of Compliance and Consents ............................ 87
11.04 Assignment; Parties in Interest .............................. 87
11.05 Bulk Sales Laws .............................................. 88
11.06 Entire Agreement ............................................. 88
11.07 Headings ..................................................... 88
11.08 Notices ...................................................... 89
11.09 Confidentiality .............................................. 90
11.10 Governing Law and Submission to Jurisdiction ................. 91
11.11 Seller's Knowledge ........................................... 91
11.12 Counterparts ................................................. 91
11.13 Severability ................................................. 92
Exhibits
A Business Property Transfer Agreement
B Bills of Sale
C Business Property Assignment
D Buyer's Undertakings
E Accounting Guidelines
F Opinion of Coopers & Xxxxxxx
G Transitional Services Agreement
H Perlite Agreement
I Computer Software Agreement
J Annual Business Financial Statement
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Schedules
2.01(c)(vi) Subleases
3.04(a) Collective Bargaining Agreements; Benefits for Salaried Employees
3.04(e) Employees Provided Termination Costs by Seller
4.04 Consents and Approvals of Seller
4.07 Certain Changes or Events
4.08(a) Employee Benefit Plans
4.06(b) Post-Retirement Benefits
4.08(c) Pension Plans - Exceptions to Legal Compliance; Loans
4.08(e) Non-Qualified Employee Plans
4.08(f) Multiemployer Plans; Employment Agreements; Obligations to Continue Benefits
4.08(g) Contracts with Directors, Officers or Independent Contractors
4.09 Other Employee Related Agreements
4.10(a) List and Legal Description of Real Property
4.10(b) Actions, Suits or Proceedings Pertaining to Real Property
4.10(e) Unrecorded Licenses, Leases, Use Agreements and Understandings
4.10(f) Access
4.10(g} Endangered or Threatened Animals or Plants and Wetlands
4.10(i) Options to Purchase or Rights of First Refusal
4.10(j) Identified Diatomaceous Earth Deposits of Commercial Quality
4.11 Leasehold Interests
4.12(a) Mining Claims
4.12(b) Conflicting Claims Relating to Unpatented Mining Claims
4.12(c) Access Agreements
4.13 Personal Property
4.14 Title to Assets
4.15 Condition of Assets
4.16 Business Property
4.18 Insurance Policies
4.19 Certain Contracts and Commitments
4.21 Seller Approvals
4.22 Litigation
4.23(a) Warranties
4.23(b) Product Liability
4.24 Environmental Matters
5.04 Consents and Approvals of Buyer
6.06 Manville Guarantee
6.08 Ongoing Research Projects
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of July 1, 1991, by and among
CELITE HOLDINGS CORPORATION, a Delaware corporation ("New Celite"), CELITE
CORPORATION, a Delaware corporation and a wholly owned subsidiary of New Celite
("Buyer"), and MANVILLE SALES CORPORATION, a Delaware corporation ("Seller").
WITNESSETH:
WHEREAS, Manville Corporation, a Delaware corporation and sole
stockholder of Seller ("Manville"), through its various direct and indirect
subsidiaries and joint venture interests, is engaged worldwide in a filtration
and minerals business (the "Filtration and Minerals Business") consisting
principally of (i) mining, processing and distributing diatomite for various
uses including as a filtration aid and functional filler, and (ii) mining,
processing and distributing perlite for various uses including ceiling tiles,
filter aids and insulation boards, but not including the perlite processing
plants owned and operated by Seller's roofing division or in connection with
Seller's calcium silicate ("T-12") business conducted in Weukegan, Illinois;
WHEREAS, Manville wishes to sell, and New Celite wishes to acquire,
directly and through Buyer, Manville's Filtration and Minerals Business;
WHEREAS, contemporaneous with the execution of this Agreement, New
Celite, Buyer and Manville International B.V., as indirect wholly owned
subsidiary of Manville ("Manville B.V."), are entering into a stock purchase
agreement whereby Manville B.V. will directly or indirectly sell, and Buyer
will directly or indirectly purchase, the stock of and certain assets of certain
subsidiaries of Manville B.V. (the "European Companies") through which the
Filtration and Minerals Business is conducted in Europe (the "European Stock
Purchase Agreement");
WHEREAS, contemporaneous with the execution of this Agreement, New
Celite, Buyer and Manville are entering into a stock purchase agreement whereby
Manville will sell and Buyer will purchase the stock of certain Xxxxx
subsidiaries of Manville and stock of, and related interests in, certain
corporations organized in Mexico and Iceland (the "Joint Venture Companies"),
which subsidiaries and corporations have
constituted part of the Filtration and Minerals Business (the "Joint Venture
Stock Purchase Agreement");
WHEREAS, on May 24, 1991, Alleghany Corporation, a Delaware
corporation and sole stockholder of New Celite ("Alleghany"), and Manville
entered into a loan agreement pursuant to which the loan made to Manville
thereunder will be repaid by the delivery to Buyer, as assignee of Alleghany, of
approximately 60% of the outstanding capital stock of Dialmecon S.A. de C.V. on
the Closing Date (the "Loan Agreement");
WHEREAS, upon the Closing of this Agreement, New Celite and Manville
will enter into a Business Property Transfer Agreement substantially in the form
of Exhibit A attached hereto whereby Manville will assign and New Celite will
acquire certain patented and unpatented technology, the Celite trade name,
certain trademarks and other intellectual property used primarily in connection
with the Filtration and Minerals Business (the "Business Property Transfer
Agreement");
WHEREAS, contemporaneous with the execution of this Agreement,
Alleghany, Seller, Manville B.V. and Manville are entering into an agreement
whereby Alleghany will agree to cause each of New Celite and Buyer to perform
its pre-Closing obligations hereunder (the "Alleghany Agreement");
WHEREAS, contemporaneous with the execution of this Agreement, New
Celite, Buyer and Manville are entering into an agreement relating to certain
matters in connection with New Celite's acquisition, directly and through Buyer,
of the Filtration and Minerals Business; and
WHEREAS, this Agreement sets forth the terms and conditions upon
which Buyer agrees to purchase from Seller and Seller agrees to sell to Buyer,
all of the properties and assets of Seller used primarily in the Filtration and
Minerals Business, other than those transferred pursuant to the European Stock
Purchase Agreement, the Joint Venture Stock Purchase Agreement, the Business
Property Transfer Agreement and the Loan Agreement (said four other agreements,
collectively, the "Other Agreements") or expressly excluded from sale therein or
herein.
NOW THEREFORE, in consideration of the mutual agreements contained
herein, the parties, intending to be legally bound hereby, agree as follows:
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I. DEFINITIONS
Unless otherwise defined in this Agreement or in the Exhibits and
Schedules to this Agreement, defined terms in this Agreement and in the Exhibits
and Schedules to this Agreement shall have the meanings assigned to them, as
follows:
"Adjusted Cash Purchase Price" has the meaning assigned in Section
2.02(a).
"Adjustment Date" has the meaning assigned in Section 2.08.
"Affiliate" or "affiliate" has the meaning provided in Rule 12b-2
under the Exchange Act, as in effect on the date hereof.
"Agreement" means this Asset Purchase Agreement dated as of July 1,
1991 by and among New Celite, Buyer and Seller.
"Alleghany" means Alleghany Corporation, a Delaware corporation.
"Alleghany Agreement" has the meaning assigned in the seventh
"Whereas" clause.
"Annual Business Financial Statements" has the meaning assigned in
Section 4.05.
"Assets" has the meaning assigned in Section 2.01(a).
"Assumed Liabilities" means the liabilities assumed by Buyer
pursuant to Section 2.04(a).
"Bills of Sale" has the meaning assigned in Section 2.01(c).
"Book Value of the F&M Assets" has the meaning assigned in Section
2.02(d).
"Book Value of the F&M Liabilities" has the meaning assigned in
Section 2.02(d).
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"Business" has the meaning assigned in Section 6.08(a).
"Business day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York City are
authorized or obligated by law or executive order to close.
"Business Property Transfer Agreement" has the meaning assigned in
the sixth "Whereas" clause.
"Buyer" means Celite Corporation, a Delaware corporation and a
wholly owned subsidiary of New Celite.
"Buyer Indemnitees" has the meaning assigned in Section 9.02(a).
"Buyer's Pension Plan(s)" has the meaning assigned in Section
3.04(b)(ii).
"Buyer's Post-Retirement Group" has the meaning assigned in Section
3.04(c)(iv)(A).
"Buyer's Statement" has the meaning assigned in Section 2.07(c).
"Buyer's Welfare Plans" has the meaning assigned in Section 3.04
(c)(i).
"Cash Purchase Price" has the meaning assigned in Section 2.02(a).
"Claims" has the meaning assigned in Section 9.02(a).
"Closing" has the meaning assigned in Section 2.05(a).
"Closing Date" has the meaning assigned in Section 2.05(a).
"Closing Date Balance Sheet" has the meaning assigned in Section
2.07(a).
"Closing Date Financial Statements" has the meaning assigned in
Section 2.07(a).
"Code" means the Internal Revenue Code of 1986, as amended.
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"Collective Bargaining Agreements" has the meaning assigned in
Section 3.04(a).
"Computer Software Agreement" has the meaning assigned in Section
3.09.
"Dispute Resolution Accounting Firm" has the meaning assigned in
Section 2.07(e).
"Employee Plans" has the meaning assigned in Section 4.08(a).
"Environment" means navigable waters, waters of the contiguous zone,
ocean waters, natural resources, flora and fauna, surface waters, groundwater,
drinking water supply, land surface, subsurface strata and air.
"Environmental Approval" means any approval, consent, waiver,
exemption, order, permit, authorization, right or license required by any
governmental authority relating to health, safety or the Environment.
"Environmental Laws." means (i) the Occupational Health and Safety
Act of 1970, as amended; (ii) the Mine Safety and Health Act of 1977, as
amended; and (iii) federal, state, local and foreign laws, principles of common
law, regulations and codes, as well as orders, decrees, judgments or injunctions
issued, promulgated, approved or entered thereunder relating to health or
safety, pollution, or protection of the Environment, including, but not limited
to, those relating to the Release or threatened Release of Hazardous Substances
into the Environment or otherwise relating to the presence, manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Substances,
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Affiliate" means all persons (whether or not incorporated)
which are treated as being under common control or as a single employer with
Seller under Section 414(b), (c), (m) or (o) of the Code.
"Estimated Cash Payment" has the meaning assigned in Section 2.03.
"European Cash Purchase Price" has the meaning assigned in Section
2.02(d)
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"European Companies" has the meaning assigned in the third "Whereas"
clause.
"European Stock Purchase Agreement" has the meaning assigned in the
third "Whereas" clause.
"Excess Inventories" has the meaning assigned in Section 2.02(d).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Assets" has the meaning assigned in Section 2.01(b).
"Excluded Liabilities" has the meaning assigned in Section 2.04(b).
"Filtration and Minerals Business" has the meaning assigned in the
first "Whereas" clause.
"F&M Interim Results" has the meaning assigned in Section 2.02(d).
"generally,accepted accounting principles" means the conventions,
rules and procedures that define accepted accounting practice in the United
States.
"Hazardous Substance" means any toxic waste, hazardous substance,
toxic substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, including, without limitation, any such substance regulated
under or defined by any Environmental Law.
"Hourly Employees" has the meaning assigned in Section 3.04(a).
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"IMC" has the meaning assigned in Section 2.01(b)(vi).
"Indemnitor" has the meaning assigned in Section 9.03(a).
"Injury" has the meaning assigned in Section 2.04(b)(v).
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"Interest Adjustment" has the meaning assigned in Section 2.02(d).
"Interim Statement of Earnings" has the meaning assigned in Section
2.07(a).
"Joint Venture Cash Purchase Price" has the meaning assigned in
Section 2.02(d).
"Joint Venture Companies" has the meaning assigned in the fourth
"Whereas" clause.
"Joint Venture Stock Purchase Agreement" has the meaning assigned in
the fourth "Whereas" clause.
"Leasehold Interests" has the meaning assigned in Section 4.11.
"Liens" has the meaning assigned in Section 4.14.
"Loan Agreement" has the meaning assigned in the fifth "Whereas"
clause.
"Manville" means Manville Corporation, a Delaware corporation.
"Manville B.V." has the meaning assigned in the third "Whereas"
clause.
"Manville Thrift Plan" has the meaning assigned in Section
3.04(b)(vii).
"Mining Law of 1872" has the meaning assigned in Section 4.12(a).
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 3(37) of ERISA.
"NESHAP" means National Emission Standards for Hazardous Air
Pollutants, set forth at 42 U.S.C. Section 7412.
"Net Book Value Change" has the meaning assigned in Section 2.02(d).
"Net Book Value of the F&M Business" has the meaning assigned in
Section 2.02(d).
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"New Celite" means Celite Holdings Corporation, a Delaware
corporation.
"Off Site Packaging Materials" has the meaning assigned in Section
2.0l(d).
"Order" has the meaning assigned in Section 11.04(b).
"Other Agreements" has the meaning assigned in the ninth "Whereas"
clause.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Perlite Agreement" has the meaning assigned in Section 3.02.
"Post-Retirement Reserve" has the meaning assigned in Section 3.04
(c)(ii)(E).
"Preliminary Financial Statements" has the meaning assigned in
Section 2.06.
"Preliminary F&M Interim Results" has the meaning assigned in
Section 2.02(d).
"Pumicite Deposit" has the meaning assigned in Section 6.12.
"RCRA" means the Resource Conservation and Recovery Act, as amended,
set forth at 42 U.S.C. Section 6901 at seq., including any rules and regulations
promulgated in connection therewith.
"Real Property" has the meaning assigned in Section 4.10 (a).
"Refil" has the meaning assigned in Section 2.01(b)(vi).
"Refil Debt" has the meaning assigned in Section 2.01(b)(vi).
"Refil Stock Purchase Agreement" has the meaning assigned in Section
2.01(b)(vi).
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"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing of
any Hazardous Substance into the Environment.
"Salaried Employees" has the meaning assigned in Section 3.04(a).
"Seller" means Manville Sales Corporation, a Delaware corporation
and a wholly owned subsidiary of Manville.
"Seller Approvals" has the meaning assigned in Section 4.21.
"Seller Indemnitees" has the meaning assigned in Section 9.02(c).
"Seller Receivables" has the meaning assigned in Section 3.05(a).
"Seller's Business Property" has the meaning assigned in Section
4.16.
"Seller's Pension Plans" has the meaning assigned in Section
3.04(b)(i).
"Seller's Post-Retirement Group" has the meaning assigned in Section
3.04(c)(ii)(B).
"Seller's Welfare Plans" has the meaning assigned in Section
3.04(c)(i).
"Subsidiary" or "subsidiary" has the meaning provided in Rule l2b-2
under the Exchange Act, as in effect on the date hereof.
"Successor Thrift Plan" has the meaning assigned in Section
3.04(b)(vii).
"Surveys" has the meaning assigned in Section 7.08.
"Tax" or "Taxes" means any federal, state, county, local, foreign
and other income, profits, gains, net worth, occupation, property (real or
personal), franchise, capital stock, license, excise, value added payroll,
employees' income withholding, social security, unemployment or other
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tax, any penalty, addition to tax and interest on the foregoing, and any
Transfer Taxes.
"Termination" has the meaning assigned in Section 3.04(e).
"Termination Costs" has the meaning assigned in Section 3.04(e).
"Title Insurer" means Chicago Title Insurance Company or such other
title insurance company as may be selected by Buyer.
"Trade Names" means the "Celite" name, trademark, servicemark and
logo or any variants thereof, and such other names, trademarks and servicemarks
relating primarily to the operation of the U.S. Filtration and Minerals
Business, but not including any names, trademarks or servicemarks that use
"Manville" or "MVL."
"Transfer Amount" has the meaning assigned in Section 3.04(b)(iv).
"Transferring Employees" has the meaning assigned in Section
3.04(b)(i).
"Transfer Tax" or "Transfer Taxes" means any federal, state, county,
local, foreign and other sales, use, transfer, conveyance, gross receipts,
documentary transfer, recording or other similar tax imposed upon the sale,
transfer or assignment of property or any interest therein, and any penalty,
addition to tax or interest with respect thereto, but such term shall not
include any tax on, based upon or measured by, the net income, gains or profits
from such sale, transfer or assignment of the property or any interest therein.
"Transitional Services Agreement" has the meaning assigned in
Section 3.01.
"TSCA" means the Toxic Substances Control Act, as amended, set forth
at 15 U.S.C. Section 2601 et seq., including any rules and regulations
promulgated in connection therewith.
"Unpatented Mining Claims" has the meaning assigned in Section 4.12
(a).
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"U.S. Filtration and Minerals Business" has the meaning assigned in
Section 2.01(a).
"Valuation Date" has the meaning assigned in Section 3.04(b)(iv).
"WARN Act" means the Worker Adjustment and Retraining Notification
Act of 1988.
II. TRANSFER OF ASSETS AND LIABILITIES
2.01. Assets to be Sold.
2.01(a). Subject to the terms and conditions of this Agreement, at
the Closing, Seller will sell, convey, assign, transfer and deliver to Buyer all
of Seller's right, title and interest in and to the properties and assets of
every kind, nature and description, real, personal or mixed, tangible or
intangible, and wherever situated, owned, possessed or held by Seller, or any of
its subsidiaries, on the Closing Date and used or held for use primarily in the
Filtration and Minerals Business other than (i) the Excluded Assets, or (ii) the
properties and assets acquired by New Celite or Buyer pursuant to the Other
Agreements (as so limited, the "Assets"). The Assets include, without
limitation, Seller's right, title and interest in real property and improvements
listed on Schedule 4.10(a) hereto, personal property listed on Schedule 4.13
hereto and recorded as assets on the Closing Date Balance Sheet, Seller's
Business Property listed on Schedule 4.16.1 hereto, Unpatented Mining Claims
listed on Schedule 4.12(a) hereto, leasehold interests listed on Schedule 4.11
hereto, contracts and agreements listed on Schedule 4.19 hereto, and
inventories, supplies, fixtures and other assets located at the locations
included in the Real Property or the Leasehold Interests. The portion of the
Filtration and Minerals Business conducted by Seller and utilizing the Assets is
herein referred to as the "U.S. Filtration and Minerals Business."
2.01(b). Notwithstanding anything herein to the contrary, Seller is
not selling to Buyer and Buyer is not purchasing from Seller any property or
assets of any kind, nature and description owned, possessed or held by Seller or
any of its subsidiaries on the Closing Date and not used or held for use
primarily in the U.S. Filtration and Minerals
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Business (the "Excluded Assets") including, without limitation: (i) all of the
properties and assets located in Denver, Colorado or Dallas, Texas which have
been used to provide accounting and management support for the U.S. Filtration
and Minerals Business other than books and records of the U.S. Filtration and
Minerals Business otherwise to be transferred hereunder; (ii) cash and cash
equivalents; (iii) mining claims other than those identified in Schedules
4.10(a) and 4.12(a); (iv) the perlite processing plants owned and operated by
Seller's roofing division or in connection with Seller's calcium silicate
("T-12") business conducted in Waukegan, Illinois; (v) any Filtration and
Minerals Business receivables held by Manville Canada, Inc.; and (vi) debt (the
"Refil Debt") owed by Refil S.A. ("Refil") and Xxxxxxx X. Xxxxxx to
International Manville Corporation ("IMC") or its successors or assigns as set
forth in the Stock Purchase Agreement, dated September 24, 1986 between IMC and
Xxxxxxx X. Xxxxxx (the "Refil Stock Purchase Agreement"). The Refil Debt
consists of a long term receivable in the principal amount of U.S. $811,032,
which is secured by (1) a pledge of assets contained in Article IV of the Refil
Stock Purchase Agreement; (2) a mortgage dated September 22, 1986 in the amount
of U.S. $250,000 on the land, building and automobiles of Refil; and (3) eight
promissory notes, each in the principal amount of U.S. $101,379 and dated
September 22, 1986 executed by Refil in favor of IMC.
2.01(c). The sale, conveyance, assignment, transfer and delivery of
the U.S. Filtration and Minerals Business will be effected by delivery at the
Closing by Seller to Buyer of (i) duly executed bills of sale in the form of
Exhibit B hereto (the "Bills of Sale"); (ii) (A) good and sufficient grant
deeds, which will be in recordable form with all Transfer Taxes affixed or paid
and which will be sufficient to transfer all of Seller's right, title and
interest in and to the portion of the Real Property included in the Assets
located in the State of California, and (B) good and sufficient special warranty
deeds, which will be in recordable form with all Transfer Taxes affixed or paid
and which will be sufficient to transfer all of Seller's right, title and
interest in and to the portion of the Real Property included in the Assets
located outside of the State of California; (iii) good and sufficient quitclaim
deeds, which will be in recordable form with all Transfer Taxes affixed or paid
and which will be sufficient to transfer all of Seller's right, title and
interest in and to any unpatented mining claims and water rights included in the
Assets; (iv) instruments of assignment with respect to which Seller will
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assign and transfer to Buyer all of Seller's right and interest in and to the
leases of real and personal property and other agreements, instruments and
documents to be assigned to Buyer, and pursuant to which Buyer will assume and
agree to perform and discharge all duties and obligations of Seller under the
leases, agreements, instruments and documents to be assigned and transferred to
Buyer; (v) a written assignment, in the form of Exhibit C hereto, pursuant to
which Seller will assign and transfer to Buyer all of Seller's right and
interest in and to the Business Property listed in Schedule 4.16.1 hereto; (vi)
duly executed subleases in form and substance reasonably satisfactory to Buyer
and on terms no less favorable than those currently existing and lease set forth
in Schedule 2.01(c)(vi) in form and substance reasonably satisfactory to Buyer;
and (vii) such other good and sufficient instruments of conveyance, transfer and
assignment as shall be reasonably necessary or reasonably requested by Buyer to
vest in Buyer all of Seller's right, title and interest to the Assets to be
purchased by Buyer pursuant to this Agreement. Seller shall transfer to Buyer
all permits, licenses and governmental approvals of plans of operations on the
mining claims or related to the water rights by means appropriate to each and,
in such instances where the same are not transferable, shall use its best
efforts to assist Buyer in effecting a reissuance of such permits, licenses or
approvals in Buyer's name.
2.01(d). After the Closing, Buyer shall not use or cause to be used
the "Manville" name; provided that Buyer may sell existing inventory of the U.S.
Filtration and Minerals Business notwithstanding the fact that such inventory is
packaged in materials bearing the "Manville" name as long as notices are affixed
to such packaging materials that clearly and conspicuously identify Buyer or an
affiliate of Buyer as the new owner; and further provided that Buyer may use the
name "Manville" on existing packaging materials and sales literature which are
either included on the Closing Date Balance Sheet or on hand at the supplier's
place of business, even though not invoiced (the "Off Site Packaging Inventory")
for a fourteen-month period after the Closing Date as long as (i) notices are
affixed to such packaging materials (or units thereof) and sales literature that
clearly and conspicuously identify Buyer as the new owner of the U.S. Filtration
and Minerals Business and (ii) Buyer uses its reasonable efforts to inform the
public and its customers and suppliers of the change in ownership. Buyer and
Seller shall take all steps reasonably requested by the other party to alleviate
confusion as to cessation of the use of the name "Manville." Seller agrees that
from and after the Closing Date, Seller
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will no longer use or have the right to use the Trade Names. At or following the
Closing, Seller will execute such consents and waivers as may be necessary or
appropriate in order that Buyer may qualify to do business, at Buyer's expense,
in any state using Trade Names. Following the Closing, Seller shall also execute
any additional assignments or other documents necessary to effect the transfer
of the Business Property.
2.01(e). Notwithstanding any other provision of this Agreement,
other than the provisions of Sections 3.04 and 3.08 which shall apply with
respect to the subject matter of those Sections, any property or assets of
Seller otherwise constituting an Asset and any contract, lease and other
instrument, document or agreement to be assigned or otherwise transferred to
Buyer hereunder, the assignment or other transfer, or the attempted assignment
or other transfer of which would be invalid or ineffective or would constitute a
breach or default of such contract, agreement or commitment to which Seller is a
party or is bound, unless the consent or approval of another person or entity to
such assignment or other transfer shall have been obtained first, shall not be
assigned or otherwise transferred under this Agreement, and the provisions of
this Agreement shall not constitute an attempt to assign or transfer, unless and
until such consents or approvals shall have been obtained; provided that, until
such consents or approvals shall have been obtained, such property, asset,
contract or agreement, or the net proceeds thereof, shall be held and/or
received by Seller for the benefit and account of Buyer, Buyer shall have the
right to act as the agent for Seller, in the name of Seller, or otherwise as
Buyer deems appropriate in order to obtain for Buyer the net benefits flowing
from ownership of such property, asset, contract or agreement and Buyer shall
perform or cause to be performed at Buyer's expense all the duties, obligations
and liabilities of Seller arising out of or relating to such property, asset,
contract or agreement; and such property, asset, contract or agreement shall be
deemed to be an Asset for purposes of Section 2.01(a) of this Agreement.
2.02. Purchase Price.
2.02(a). In consideration of the transfers to be made hereunder and
the other covenants and agreements of Seller and Buyer, Buyer shall pay to
Seller an amount in cash equal to $90.365 million (the "Cash Purchase Price"),
in the manner provided in Sections 2.03 and 2.08 hereof, which Cash
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Purchase Price shall be subject to adjustment as provided in Sections 2.02(b)
and (c) hereof (the Cash Purchase Price as so adjusted being herein referred to
as the "Adjusted Cash Purchase Price").
2.02(b). The Cash Purchase Price shall be (i) increased or reduced,
as the case may be, by an amount equal to 74.07% of the Net Book Value Change
and (ii) reduced by 74.07% of the F&M Interim Results (but not a negative or
loss number).
2.02(c). The Cash Purchase Price shall be increased by an amount
equal to 74.07% of the Interest Adjustment.
2.02(d). For purposes of this Agreement:
"Net Book Value Change" means the amount (positive or negative)
equal to (i) Net Book Value of the F&M Business, less (ii) $88.438 million.
"Net Book Value of the F&M Business" means the Book Value of the F&M
Assets, less the Book Value of the F&M Liabilities and further reduced by (i)
any increase, in respect of the period January 1, 1991 through the Closing Date,
in net property, plant or equipment which is not attributable to (a) purchases
from persons other than Manville or its affiliates, or (b) charges, not
exceeding $500,000, for bona fide services performed by Manville or its
affiliates for the Filtration and Mineral Business consistent with and accounted
for in a manner consistent with past practice, and (ii) any increase, in respect
of the period January 1, 1991 through the Closing Date, in Net Book Value of the
F&M Business which is attributable to a non-cash transaction between any entity
that is included in the Filtration and Minerals Business and Manville or its
affiliates, provided that for purposes of this clause (ii) non-cash transactions
shall not include charges up to $1.5 million for bona fide services performed or
goods provided to such entities consistent with and accounted for in a manner
consistent with past practice.
"Book Value of the F&M Assets" shall mean the amounts which are
recorded as total combined assets on the Closing Date Balance Sheet, less any
amounts included therein in respect of any Excess Inventories.
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"Book Value of the F&M Liabilities" shall mean the amounts which are
recorded as total combined liabilities on the Closing Date Balance Sheet.
"European Cash Purchase Price" means the Cash Purchase Price as
defined in the European Stock Purchase Agreement.
"Excess Inventories" shall mean the amount, if any, recorded as
inventories for the U.S. Filtration and Minerals Business on the Closing Date
Balance Sheet in excess of $9.26 million, unless such excess reasonably results
from an extraordinary business need to increase inventory due to an
unanticipated development and Seller had advised Buyer of such development and
intent to increase inventories prior to the time it commenced accumulating such
excess.
"F&M Interim Results" shall mean the amount recorded as net earnings
or loss of the Filtration and Minerals Business on the Interim Statement of
Earnings, less an amount equal to the product of (i) $288,900 and (ii) the
number of months, and any fraction thereof, between December 31, 1990 and the
Closing Date.
"Joint Venture Cash Purchase Price" means the Cash Purchase Price as
defined in the Joint Venture Stock Purchase Agreement.
"Interest Adjustment" means an amount equal to the lesser of (i) the
F&M Interim Results and (ii) 6% per annum for the period from January 1, 1991 to
the Closing Date on the sum of the Cash Purchase Price, plus the Joint Venture
Cash Purchase Price, plus the European Cash Purchase Price.
"Preliminary F&M Interim Results" shall mean the amount recorded as
net earnings or loss of the Filtration and Minerals Business on the combined
statement of income included in the Preliminary Financial Statements, less an
amount equal to the product of (i) $288,900 and (ii) the number of months, and
any fraction thereof, between December 31, 1990 and the date of the statement of
income prepared as a part of the Preliminary Financial Statements.
2.03. Estimated Cash Payment.
At the Closing, Buyer will deliver to Seller, by wire transfer to an
account designated by Seller, an amount in cash equal to the Cash Purchase Price
adjusted as provided
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in Sections 2.02(b) and (c) as if such Cash Purchase Price were determined on
the basis of the Preliminary Financial Statements and the Interest Adjustment
were determined on the basis of the Preliminary F&M Interim Results (the
"Estimated Cash Payment"). The difference between the Estimated Cash Payment and
the Adjusted Cash Purchase Price, determined on the basis of the Closing Date
Financial Statements, shall be paid by the Seller or Buyer, as the case may be,
as provided in Section 2.08 hereof.
2.04. Liabilities to be Assumed by Buyer.
2.04(a). At the Closing, Buyer will assume and agree to pay and
discharge the following:
(i) the accounts payable and accrued liabilities of the U.S. Filtration
and Minerals Business set forth on the Closing Date Balance Sheet but only to
the extent so set forth on such Balance Sheet;
(ii) the remaining obligations of Seller under and pursuant to the
provisions of the unfilled customer purchase orders existing at the Closing Date
and incurred in the ordinary course of business and relating to the U.S.
Filtration and Minerals Business, but only to the extent that products have not
been shipped to the customer prior to the Closing Date;
(iii) the remaining obligations of Seller under and pursuant to the
provisions of the unfilled purchase orders for supplies, materials and equipment
existing at the Closing Date and incurred in the ordinary course of business and
relating to the U.S. Filtration and Minerals Business (including Off Site
Packaging Inventory);
(iv) the remaining obligations of Seller under and pursuant to the
provisions of the contracts identified and designated as agreements, contracts
or commitments to be assumed by Buyer in Schedule 4.19 and any other agreements,
contracts or commitments not described and not required to be described in
Schedule 4.19 that comprise part of the Assets; and
(v) the remaining obligations of Seller pursuant to the Leasehold
Interests assigned to Buyer hereunder.
2.04(b). Except as specifically provided in this Agreement, Buyer
shall not assume any of the liabilities or
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obligations of Seller or the U.S. Filtration and Minerals Business. Without
limiting the generality of the foregoing, except as expressly assumed hereunder,
Buyer shall not assume, pay, perform or discharge the following liabilities (the
"Excluded Liabilities"):
(i) any liabilities arising from breaches of any contracts or agreements
of Seller or violations of any Seller Approvals occurring prior to the Closing
Date;
(ii) any liabilities arising from Seller's agreement or announcement that
it will indemnify users of products of the Filtration and Minerals Business
which were shipped prior to the Closing Date for claims alleging disease or
health problems as a result of use or exposure to such products;
(iii) any amounts or obligations owed by Seller to Manville or any
subsidiary of Manville, other than obligations entered into on an arm's length
basis and incurred in the ordinary course of the U.S. Filtration and Minerals
Business as previously conducted and reflected on the Closing Date Financial
Statements;
(iv) any liabilities arising from any claims, actions, suits, proceedings
or investigations, existing prior to the Closing Date or relating to events
occurring prior to the Closing Date, against Seller or any affiliate of Seller,
at law or in equity or before or by any Federal, state, municipal, local or
foreign government or other governmental department, commission, board, agency,
instrumentality or authority; and
(v) any liabilities for any claim arising out of any bodily injury,
personal injury, property damage or economic loss (herein collectively referred
to as "Injury") to the extent that such Injury (i) results from or relates to
any material, product or service of the U.S. Filtration and Minerals Business
shipped or performed on or prior to the Closing Date or (ii) occurs on or prior
to the Closing Date.
2.05. Closing; Certain Deliveries.
2.05(a). Closing. The closing (the "Closing") of the transactions
contemplated by this Agreement shall take place at such place or places as the
parties shall mutually agree within five days after satisfaction or waiver, as
applicable, of all conditions to the Closing set forth in
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this Agreement, or at such other time upon which the parties hereto may mutually
agree. The time and date of such Closing is referred to in this Agreement as the
"Closing Date."
2.05(b). Deliveries by Seller. At the Closing, Seller will deliver,
or cause to be delivered, to Buyer (unless delivered previously), the following,
duly executed, acknowledged and attested as appropriate:
(i) the Bills of Sale;
(ii) a deed or deeds, in form and substance as required by this Agreement
and otherwise reasonably satisfactory to Buyer, from Seller for the Real
Property and the unpatented mining claims and water rights included in the
Assets;
(iii) instruments of assignment, in form and substance as required by this
Agreement and otherwise reasonably satisfactory to Buyer, referred to in Section
2.01(c)(iv);
(iv) all consents, approvals and waivers referred to in Section 7.04
hereof;
(v) the certified resolutions referred to in Section 4.02 hereof;
(vi) the opinions of counsel referred to in Section 7.03 hereof;
(vii) all the books and records of Seller that relate primarily to the
U.S. Filtration and Minerals Business which are located at locations included in
the Assets or required to be so located in Section 4.14 hereof;
(viii) the officers' certificate referred to in Section 7.11 hereof;
(ix) the Transitional Services Agreement referred to in Section 3.01
hereof;
(x) the Surveys referred to in Section 7.08 hereof;
(xi) the Perlite Agreement referred to in Section 3.02 hereof;
(xii) the Business Property Transfer Agreement and the Computer Software
Agreement;
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(xiii) the subleases and lease referred to in Section 2.01(c)(vi) hereof;
and
(xiv) all other documents, instruments and writings required to be
delivered by Seller at or prior to the Closing pursuant to this Agreement or
otherwise required in connection herewith.
2.05(c). Deliveries by Buyer and New Celite. At the Closing, Buyer
and New Celite will deliver to Seller (unless previously delivered), the
following, duly executed, acknowledged and attested as appropriate:
(i) the Estimated Cash Payment by wire transfer as provided in Section
2.03 hereof;
(ii) undertakings in the form attached hereto as Exhibit D, pursuant to
which Buyer assumes and agrees to perform and discharge the liabilities,
obligations and other matters to be assumed by Buyer under the terms of this
Agreement;
(iii) the certified resolutions referred to in Section 5.02 hereof;
(iv) the opinion of counsel referred to in Section 8.03 hereof;
(v) the officers' certificate referred to in Section 8.06 hereof;
(vi) the Transitional Services Agreement referred to in Section 3.01
hereof;
(vii) the Perlite Agreement referred to in Section 3.02 hereof;
(viii) the Business Property Transfer Agreement and the Computer Software
Agreement; and
(ix) the subleases and lease referred to in Section 2.01(c)(vi) hereof;
(x) the instruments of assignment referred to in Section 2.01(c)(iv)
hereof; and
(xi) all other previously undelivered documents, instruments or writings
required to be delivered by Buyer or
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New Celite at or prior to the Closing pursuant to this Agreement or otherwise
required in connection herewith.
2.06. Preliminary Financial Statements.
Seller shall prepare a combined statement of assets acquired and
liabilities assumed in respect of the Filtration and Minerals Business as of the
last day of the first month which ends not more than 45 calendar days prior to
the Closing Date and a combined statement of income in respect of the Filtration
and Minerals Business for the period January 1, 1991 to said month end and the
related supporting schedules (the "Preliminary Financial Statements"). The
Preliminary Financial Statements shall be prepared by Seller in the format of,
and in accordance with the accounting principles consistently applied and used
in preparation of, the Annual Business Financial Statements. The Preliminary
Financial Statements shall not give effect to any write-up of assets resulting
from the transactions contemplated by this Agreement or to any costs or expenses
arising out of, or relating to, this Agreement or any transactions contemplated
by this Agreement, including, without limitation, severance costs, and shall
give effect to any adjustments described in Exhibit E. The Preliminary Financial
Statements shall be utilized for purposes of determining the Estimated Cash
Payment.
2.07. Closing Date Financial Statements.
2.07(a). Following the Closing, Seller, with such assistance and
information, reasonable access to the books, records and schedules of Buyer and
the U.S. Filtration and Minerals Business and reasonable access to employees of
the U.S. Filtration and Minerals Business, from Buyer as Seller and Coopers &
Xxxxxxx shall reasonably require, will prepare a combined statement of assets
acquired and liabilities assumed in respect of the Filtration and Minerals
Business as of the Closing Date (the "Closing Date Balance Sheet") and a
combined statement of income in respect of the Filtration and Minerals Business
for the period January 1, 1991 to the Closing Date (the "Interim Statement of
Earnings") and the related supporting schedules together with the related
combining eliminations, to be audited by Coopers & Xxxxxxx (such Closing Date
Balance Sheet and Interim Earnings Statement as so audited, and in respect of
which Coopers & Xxxxxxx will render its unqualified opinion in the form of
Exhibit F, the "Closing Date Financial Statements"). The Closing Date Financial
Statements shall be prepared in the
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format of, and in accordance with the accounting principles consistently applied
and used in the preparation of, the Annual Business Financial Statements. The
Closing Date Financial Statements shall not give effect to any write-up of
assets resulting from the transactions contemplated by this Agreement or to any
costs or expenses arising out of, or relating to, this Agreement or any
transactions contemplated by this Agreement, including, without limitation,
severance costs, and shall give effect to any adjustments described in
Exhibit E.
2.07(b). Within 60 days after the Closing Date, or as soon
thereafter as is reasonably practicable, Seller shall deliver to Buyer the
proposed Closing Date Financial Statements accompanied by the statement or
report of Coopers & Xxxxxxx as provided for in Section 2.07(a) of this
Agreement.
2.07(c). Within 30 days following the delivery of the proposed
Closing Date Financial Statements referred to in Section 2.07(a) hereof, Buyer
may deliver to Seller a written schedule of Buyer (the "Buyer's Statement")
conforming to the accounting principles used to prepare the Annual Business
Financial Statements and setting forth any disagreement of Buyer with any of the
information contained in such proposed Closing Date Financial Statements which
could affect the computation of the Adjusted Cash Purchase Price or of any other
adjustments to be made pursuant to this Agreement. In this connection, it is
understood and agreed that Buyer may separately prepare the proposed Closing
Date Balance Sheet and Interim Statement of Earnings and the other matters
required to be included in the Closing Date Financial Statements, as of the
Closing Date, and otherwise meeting the requirements of Section 2.07(a) for the
preparation of the Closing Date Financial Statements. The costs and expenses
incurred by Buyer in connection with the Closing Date Financial Statements and
Buyer's Statement shall be borne by Buyer. If Buyer does not submit a Buyer's
Statement, then the proposed Closing Date Financial Statements delivered by
Seller to Buyer pursuant to Section 2.07(b) hereof shall become the Closing Date
Financial Statements on the 30th day after delivery thereof.
2.07(d). Seller agrees to permit Buyer and its accountants and other
representatives, during normal business hours, to have reasonable access to
those persons who prepared or participated in the preparation of the proposed
Closing Date Financial Statements, and to examine and make
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copies of all books and records of Seller and any books, records, schedules and
work papers of Coopers & Xxxxxxx, subject to applicable American Institute of
Certified Public Accountants guidelines or the established policies of Coopers &
Xxxxxxx, which documents are, in the reasonable opinion of Buyer, necessary to
prepare Buyer's Statement or to evaluate the proposed Closing Date Financial
Statements delivered by Seller to Buyer pursuant to Section 2.07(a) hereof.
Buyer and KPMG Peat Warwick shall be entitled to review the audit conducted by
Coopers & Xxxxxxx of the Closing Data Financial Statements, and shall be
entitled to perform all other reviews Buyer reasonably believes to be necessary,
including the observation of inventories to be included in the Closing Date
Balance Sheet.
2.07(e). In the event of a disagreement between the proposed
Closing Date Financial Statements delivered by Seller and Buyer's Statement,
which the parties hereto are unable to resolve, any of the parties, within ten
days of the date of receipt by Seller of Buyer's Statement, may elect to have
all such disagreements resolved by the accounting firm of Deloitte & Touche or,
if such firm is unable or unwilling to serve, then by such other public
accounting firm as Buyer and Seller shall mutually agree upon (the "Dispute
Resolution Accounting Firm"). Such accounting firm shall make a final and
binding resolution of the disagreements. The proposed Closing Date Financial
Statements as adjusted to give effect to the resolution of disagreements by the
Dispute Resolution Accounting Firm shall be the Closing Date Financial
Statements. The Dispute Resolution Accounting Firm shall be instructed to use
every reasonable effort to perform its services within 15 days of submission of
the proposed Closing Date Financial Statements to it and, in any case, as soon
as practicable after such submission. The costs and expenses for the services of
the Dispute Resolution Accounting Firm in connection with its activities
contemplated under this subsection 2.07(e) shall be shared equally by Buyer and
Seller.
2.08. Final Computation of Cash Purchase Price and Adjustment Payment.
On the Adjustment Date, the parties shall make the adjustments to
the Cash Purchase Price as set forth in Sections 2.02(b) and (c) hereof on the
basis of the Closing Date Financial Statements. In the event the Adjusted Cash
Purchase Price as so computed on the basis of the Closing Date Financial
Statements exceeds the Estimated Cash Payment,
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Buyer shall deliver to Seller on the Adjustment Date, by wire transfer to an
account designated by Seller, an amount in cash equal to such excess, together
with interest thereon at the rate announced from time to time by Xxxxxx Guaranty
Trust Company of New York in New York City as its Prime Rate from the Closing
Date to such date of payment. In the event the Adjusted Cash Purchase Price as
so computed on the basis of the Closing Date Financial Statements is less than
the Estimated Cash Payment, Seller shall deliver to Buyer on the Adjustment
Date, by wire transfer to an account designated by Buyer, an amount in cash
equal to such shortfall, together with interest thereon at the rate announced
from time to time by Xxxxxx Guaranty Trust Company of New York in New York City
as its Prime Rate from the Closing Date to such date of payment. For purposes of
this Agreement, the "Adjustment Date" shall be the tenth day following the
completion of the Closing Date Financial Statements pursuant to the terms of
Section 2.07 of this Agreement.
III. RELATED MATTERS
3.01. Transitional Services Agreement.
At the Closing, Buyer and Seller shall enter into a transitional
services agreement substantially in the form of Exhibit G annexed hereto (the
"Transitional Services Agreement") and as a condition to the parties' obligation
to enter into the Transitional Services Agreement, all Implementation Services
(as defined in the Transitional Services Agreement) shall have been completed
subject to waiver by Buyer.
3.02. Perlite Agreement.
At the Closing, Buyer and Seller shall enter into a supply contract
substantially in the form of Exhibit H annexed hereto (the "Perlite Agreement").
3.03. Access to Books and Records.
Seller agrees that on and after the Closing Date Seller shall permit
Buyer and Buyer's representatives (including Buyer's attorneys and accountants)
during normal business hours to have reasonable access to, and to examine and
make copies of, all books and records of Seller (including, but not limited to,
correspondence, memoranda, books of account, payroll records and the like)
pertaining to the ownership and operation of the U.S. Filtration and
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Minerals Business prior to the Closing Date which are retained by Seller. Buyer
agrees that on and after the Closing Date Buyer shall permit Seller and Seller's
representatives (including Seller's attorneys and accountants) during normal
business hours to have reasonable access to, and to examine and make copies of,
all books and records of Seller transferred to Buyer at the Closing pursuant to
Section 2.05(b)(vii) hereof (including, but not limited to, correspondence,
memoranda, books of account, payroll records and the like). Each of Buyer and
Seller shall cause its managerial employees and counsel to be available upon
reasonable notice to answer questions of representatives of the other party
concerning the business and affairs of the U.S. Filtration and Minerals
Business. Each of Buyer and Seller agrees that for a period of ten years
following the Closing Date, neither party shall destroy or dispose of any books
or records pertaining to the U.S. Filtration and Minerals Business or the
Assets, without providing not less than 45 nor more than 90 days' prior written
notice to the other party of any such proposed destruction or disposal. Such
notice shall identify in reasonable detail the documents proposed to be
destroyed or disposed of. If the party receiving such notice desires to obtain
any of such documents, it may do so by notifying the party giving such notice in
writing at any time prior to the scheduled date for such destruction or
disposal. Such notice must reasonably designate the documents sought to be
obtained. The party giving notice of such proposed destruction or disposal shall
then promptly arrange for the delivery of such documents. All out-of-pocket
costs associated with the delivery of documents shall be paid by the party
requesting delivery of such documents.
3.04. Employees; Pensions; Profit Sharing Plan.
3.04(a). Employees. Seller hereby represents and warrants to Buyer
that (i) Schedule 3.04(a) sets forth a true and complete list of all collective
bargaining agreements relating to the operations of the U.S. Filtration and
Minerals Business to which Seller, or an ERISA Affiliate, is a party (the
"Collective Bargaining Agreements"), and (ii) Seller has heretofore delivered to
Buyer a true and complete list, as of the pay date immediately preceding the
date hereof, of the names, positions, years of employment and current salaries
or wage rates of all persons employed in the U.S. Filtration and Minerals
Business, separately identifying employees who are covered by a Collective
Bargaining Agreement ("Hourly Employees") and employees who are not covered by a
Collective Bargaining Agreement ("Salaried Employees"). Prior to July 10, 1991,
Buyer will provide
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Seller with a list of the Salaried Employees to whom Buyer agrees to offer
employment on the day following the Closing Date. Any individual to whom Buyer
offers employment, and who accepts such offer, shall become an employee of Buyer
on the day following the Closing Date, except that any individual who is on
long-term or short-term disability leave as of the Closing Date shall not become
an employee of Buyer prior to the first day such individual actually reports for
work with Buyer in accordance with Section 3.04(c)(iii) hereof.
Buyer agrees to offer positions to such Salaried Employees that are
commensurate with their respective work history and qualifications, at the same
base compensation including, with respect to sales personnel, the applicable
discount percentage for 1991 under the Field Sales Salary Structure as currently
paid to them by Sellers and with benefits as described on Schedule 3.04(a).
Buyer agrees that it will not reduce such compensation or materially change such
benefits prior to the first anniversary of the Closing Date. Buyer's employment
policies and employee benefit plan arrangements shall recognize service with
Seller or Manville prior to the Closing for all purposes for the plans listed on
Schedule 3.04(a) unless expressly limited hereby; provided, however, that
nothing herein shall limit Buyer's ability to alter or amend such plans after
the first anniversary of the Closing Date.
Effective as of the day following the Closing Date, Buyer shall
assume the Collective Bargaining Agreements and shall recognize each bargaining
unit identified therein. Notwithstanding anything to the contrary contained in
this Agreement, and subject to the terms of the Collective Bargaining
Agreements, nothing in this Agreement shall be construed as giving any person
any right to employment or continued employment with Buyer or any type or level
of benefit or employment with Buyer. Except as otherwise provided herein, Seller
shall be responsible for any and all other obligations with respect to any
present or former employees of the U.S. Filtration and Minerals Business (and
their beneficiaries) who do not become employees of Buyer as provided herein,
including, without limitation, obligations and liabilities described in Section
3.04(e) below, except to the extent that the failure of any such employee to
become an employee of Buyer is due to Buyer's breach of any of its obligations
under this Agreement.
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3.04(b). Pension and Thrift Plans. (i) Effective as of the Closing
Date, employees of Seller who become employees of Buyer ("Transferring
Employees") following the Closing Date who are participants in the Manville
Employees Retirement Plan or the Manville Hourly Retirement Plan (the "Seller's
Pension Plans") shall cease accruing benefits under those Plans.
(ii) On the Closing Date or as soon as practicable thereafter, Buyer shall
(or shall cause an affiliated employer to) establish or shall designate a
defined benefit pension plan (or plans) and trust (or trusts) for the benefit of
Transferring Employees covered by Seller's Pension Plans (the "Buyer's Pension
Plan(s)"). Buyer (with respect to Buyer's Pension Plans) and Seller or Manville
(with respect to Seller's Pension Plans) shall take all necessary action to
ensure that each Buyer's Pension Plan and each Seller's Pension Plan qualifies
under Section 401(a) of the Code and shall make any and all filings and
submissions to the appropriate governmental agencies required to be made by it
in connection with the transfer of assets described below.
(iii) The transfer of assets to each of Buyer's Pension Plan(s), described
below, shall comply with the requirements of Section 414(l) of the Code
(including, to the extent applicable, Treasury Regulations Sections
1.414(l)-1(n) and (o) and 1.411(d)-4) and, with respect to the accrued benefits
assumed by Buyer's Pension Plan(s) in connection with such transfer, Buyer's
Pension Plan(s) will not be amended in a manner so as to violate Section
411(d)(6) of the Code.
(iv) On the Closing Date, Seller or Manville shall cause the trustee of
each Seller's Pension Plan to segregate, in accordance with the spin-off
provisions set forth under Section 414(l) of the Code and in accordance with the
provisions set forth below, the assets of each such Plan allocable to
Transferring Employees as set forth below and shall make any and all filings and
submissions to the appropriate governmental agencies arising in connection with
such segregation of assets and all necessary amendments to such Seller's Pension
Plan and the related trust agreement to provide for such segregation of assets
and the transfer of assets as described below. The amount of assets allocable to
Transferring Employees (the "Transfer Amount") for each Seller's Pension Plan
shall be equal in value to ((A) divided by (B)) x (C) as defined below which
amount shall be segregated and invested as described in (D) below:
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(A) The Accumulated Benefit Obligation (as defined in Statement of
Financial Accounting Standards No. 87) for Transferring Employees,
determined as of January 1, 1991 on the basis of an interest
assumption equal to the Buck Forward Interest Rate Index as of that
date and all other assumptions used in the January 1, 1991 actuarial
valuation of such Seller's Pension Plan.
(B) The Accumulated Benefit Obligation for all active and retired
members of such Seller's Pension Plan, determined as of January 1,
1991 on the basis of an interest assumption equal to the Buck
Forward Interest Rate Index as of that date and all other
assumptions used in the January 1, 1991 actuarial valuation of such
Plan.
(C) The fair market value of assets (as determined under the principles
of Statement of Financial Accounting Standards No. 35) of such
Seller's Pension Plan as of the plan month-end estimated valuation
date coinciding with the Closing Date or, if the Closing Date does
not coincide with any such date, such valuation date next succeeding
the Closing Date (the "Valuation Date"), including credit for the
1990 plan year contributions, if any, as of the respective dates of
such contributions and any deemed credit for 1991 contributions in
accordance with (v) below.
(D) On the Closing Date or as promptly as practicable thereafter, the
Transfer Amount(s) shall be estimated by the Seller's actuary, based
on the most recently available data, and shall be segregated in the
form of cash and invested in instruments issued or guaranteed by the
United States Government with a maturity of 90 days or less or
mutual funds investing primarily in such instruments. When the
actual Transfer Amount(s) are determined, the amounts so segregated
shall be appropriately adjusted to reflect the investment of the
Transfer Amount in such instruments as of the Valuation Date to the
date of transfer.
Seller shall cause the actuary for the Seller's Pension Plans to determine the
Transfer Amount in accordance with the provisions of this Section, subject to
the approval of Buyer's actuary, which approval will not be unreasonably
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withheld. As soon as practicable after Seller's actuary determines the Transfer
Amount and Seller receives adequate assurance of the qualified status of Buyer's
Pension Plans as described in subsections (viii) or (ix) below, Seller shall
cause the trustee of Seller's Pension Plans to transfer from the trusts of
Seller's Pension Plans, in accordance with Section 414(l) of the Code, the
Transfer Amount for each such Plan, together with the earnings attributable to
the investment of such assets in short-term investments, as set forth above,
during the period from the Valuation Date to the date of transfer described
herein (or such other amounts as determined in accordance with subsection (x)
below) but less any benefit payments made to or on behalf of any Transferring
Employee from Seller's Pension Plans after the Closing Date but prior to the
asset transfer, and less an amount equal to $17.20 per Transferring Employee
participating in the plan per month for each month or portion thereof elapsing
between January 1, 1991 and the date of transfer, to the appropriate trustee for
such Buyer's Pension Plan(s) designated by Buyer under the trust agreement(s)
forming a part of the Buyer's Pension Plan(s).
(v) The assets so transferred shall be transferred in the form of cash. In
addition, Seller will transfer a proportionate part of the contribution
requirement relating to each of the Seller's Pension Plans for calendar year
1991 (as described in (Z) below) based on the ratio of (A) divided by (B) in
(iv) above, times the product of (Y) and (Z) below:
(Y) The fraction of the year elapsed from January 1, 1991 to the Closing
Date.
(Z) The contribution requirement of each Plan for calendar year 1991
determined by the actuary for the Seller's Pension Plans under the
assumptions, methods and benefit provisions considered in the
January 1, 1991 actuarial valuation of the Seller's Plans as
follows:
1) Normal Cost, plus
2) Amortization of any Unfunded Actuarial Accrued Liability as of
January 1, 1991 in accordance with the amortization schedules
and methods used for such plan for purposes of Section 412 of
the Code as of the Closing Date, provided, however, that if
the funded status of such Plan does not permit a tax
deductible contribution
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to the Plan in 1991 due to Internal Revenue Service full
funding limitations, no proportionate 1991 contribution will
be required.
(vi) In consideration for and subject to receipt of the transfers of
assets described herein and as of the date of any such transfer, Buyer shall
assume all liability of Seller and any ERISA Affiliates of Seller for payment of
the benefits accrued by Transferring Employees under the Seller's Pension Plans
prior to the Closing Date (exclusive of benefits paid prior to the date of
transfer described herein) and Buyer and Seller will each reimburse each other
or their respective Pension Plans, as the case may be, for any cost or expense
arising with respect to such benefits that is incurred by Seller or Buyer or
their respective Pension Plans following the Closing Date as a result of Buyer's
or Seller's breach of its obligations under this Section. Prior to such
transfer, Buyer shall be liable only for payment of the benefits accrued by
Transferring Employees under Buyer's Pension Plan(s) after the Closing Date and
Seller shall be liable for payment of benefits accrued by Transferring Employees
under the Seller's Pension Plans prior to and on the Closing Date. Transferred
assets may not be used for any purpose other than to pay retirement benefits or
reasonable expenses related thereto for a period of four (4) years following the
Closing Date.
(vii) On the Closing Date or as soon as practicable thereafter, Buyer
shall (or shall cause an affiliated employer to) establish or shall designate a
defined contribution pension plan and trust (the "Successor Thrift Plan") for
the benefit of Transferring Employees covered by the Manville Employees Thrift
Plan (the "Manville Thrift Plan"). Buyer (with respect to the Successor Thrift
Plan) and Seller (with respect to the Manville Thrift Plan) shall take all
necessary action to ensure that the Successor Thrift Plan and the Manville
Thrift Plan are qualified under Section 401(a) of the Code and shall make or
cause to be made any and all filings and submissions to the appropriate
governmental agencies required to be made by it in connection with the transfer
of assets described below. With respect to amounts attributable to the
plan-to-plan transfer described below, the Successor Thrift Plan shall permit
the participants to choose among at least two alternative investment options.
Within a reasonable period (not to exceed 180 days) after the Closing Date,
Seller shall cause the Manville Thrift Plan to make and Buyer shall cause the
Successor Thrift Plan to
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accept the plan-to-plan transfer of assets as set forth below. All Transferring
Employees shall be fully vested in their account balances under the Manville
Thrift Plan as of the Closing Date. As soon as practicable after Seller shall
have received adequate assurance of the qualified status of the Successor Thrift
Plan as described in subsections (viii) and (ix) below, Seller shall cause the
trustee of the Manville Thrift Plan to transfer the full vested account balances
of Transferring Employees under the Manville Thrift Plan as of the date of such
transfer (which account balances will have been credited with appropriate
earnings attributable to, and reduced by any necessary benefit or withdrawal
payments to or in respect of Transferring Employees occurring during, the period
from the Closing Date to the date of transfer described herein), to the
appropriate trustee as designated by Buyer under the trust agreement forming a
part of the Successor Thrift Plan. Prior to the transfer date, Seller shall have
contributed to the Manville Thrift Plan Seller's fixed matching contribution
(i.e., 50% of pre-tax contributions) with respect to pre-tax contributions made
by or on behalf of Transferring Employees for the period from the end of the
most recent plan year through the Closing Date. Seller shall cause the trustee
for the Manville Thrift Plan to transfer to the trustee for the Successor Thrift
Plan Seller's contingent matching contribution (i.e., additional contributions
based on Manville's performance), if any, with respect to pre-tax contributions
made by or on behalf of Transferring Employees for the period from the end of
the most recent plan year ending prior to the date hereof through the Closing
Date, such transfer to occur as soon as practicable following the date such
amount is determined. The account balances of Transferring Employees shall be
transferred in the forms in which they are invested under the Manville Thrift
Plan as of the transfer date, including Manville's common stock, as applicable,
in a manner to minimize, to the extent feasible, any transaction cost, market
adjustment or other cost to Transferring Employees as a result of the transfer.
In the event that the investment manager for the Manville Thrift Plan refuses to
follow instructions for such transfer, Buyer and Seller agree to make such other
asset transfer arrangements as are in the best interests of the plan
participants and are consistent with the fiduciary duties of the parties, the
Manville Thrift Plan document and applicable law and regulations. In
consideration for the transfer of assets described herein and as of the date of
such transfer, Buyer or the Successor Thrift Plan, and not Seller or the
Manvaille Thrift Plan, shall be liable for the payment of any
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benefits accrued by Transferring Employees under the Manville Thrift Plan and
Buyer and Seller will each reimburse each other or their respective Thrift
Plans, as the case may be, for any cost or expense arising with respect to such
benefits that is incurred by Seller or Buyer following the Closing Date as a
result of Buyer's or Seller's breach of its obligations under this Section.
Prior to such transfer of assets, the Buyer and Successor Thrift Plan shall not
be liable for the payment of any benefits accrued under the Manville Thrift
Plan. An amount equal to $6.17 per Transferring Employee per month for each
month or portion thereof elapsing from the Closing Date to the date of transfer
shall be reimbursed by Buyer and Buyer and Seller agree that such amount shall
be the total reimbursement for investment advisory fees and administrative costs
as a result of administering such assets (including maintaining and processing
loan accounts and transactions). The transfer of assets to the Successor Thrift
Plan described above shall satisfy the requirements of Section 414(l) and
411(d)(6) of the Code (including, to the extent applicable, Treasury Regulations
Sections 1.414 (l)-1(m) and (o) and 1.411(d)-4 (without regard to the elective
transfer provisions of Q/A 3(b) thereof)) and with respect to amounts
attributable to the assets so transferred, the Successor Thrift Plan shall not
be amended so as to violate Section 411(d)(6) of the Code.
(viii) Subject to subsection (ix) below, in no event shall any transfer
contemplated within this Section 3.04(b) occur prior to Seller receiving a copy
of a favorable determination letter from the Internal Revenue Service with
respect to the qualification of the Buyer's Pension Plan(s) or Successor Thrift
Plan, as applicable, and a certification of continued compliance from Buyer, or
such other evidence of qualified status as shall be acceptable to Seller (the
certification described in subsection (ix) shall be deemed to be evidence of
qualified status that is acceptable to Seller), and in no event shall any
transfer occur more than 45 days after Seller has satisfied such requirement.
Prior to the transfer of assets, Seller or Manville shall provide Buyer with a
certification of continued compliance with respect to Seller's Pension Plans
and/or the Manville Thrift Plan, as applicable. Buyer's and Seller's
certifications of continued compliance shall state that no amendments have been
made or failed to have been made with respect to Buyer's Pension Plans, Seller's
Pension plans, the Successor Thrift Plan or the Manville Thrift Plan, as
applicable, and on actions have been taken or failed to have been taken with
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respect to the administration of each such Plan, since the date of the
determination letter provided to Seller that would cause such Plan and its
related trust to cease to be qualified and tax exempt under Section 401(a) and
501(a) of the Code, respectively.
(ix) If Buyer requests that a transfer contemplated within this Section
3.04(b) be made prior to Seller receiving a favorable determination letter from
the Internal Revenue Service with respect to the qualification of the Buyer's
Pension Plan(s) or the Successor Thrift Plan, as the case may be, Seller agrees
to transfer or cause to be transferred such amount provided that Buyer shall
make a copy of such Plan and its related trust available to Seller for Seller's
approval at least ten (10) business days prior to the date that Buyer intends to
submit such Plan to the Internal Revenue Service for determination of its
qualified status and Buyer shall certify to Seller that Buyer (1) has
established a defined contribution plan and trust or a defined benefit plan and
trust, as applicable, (2) will submit the plan to the Internal Revenue Service
for determination as to its qualified status under the Code, (3) will file an
Internal Revenue Service Form 5310 in a timely fashion, and (4) will do all
things necessary to obtain a favorable determination letter; provided, however,
that Seller shall not be required to make such transfer if it receives an
opinion of counsel who is acceptable to Buyer that such transfer will adversely
affect the tax-qualified status of the transferring plan. Buyer further agrees
that if an adverse determination letter is received or if the request is
withdrawn without the substitution or contemplation of substitution of a
subsequent determination request, Buyer will promptly notify Seller and will
refund and return to Seller's Pension Plan or Manville's Thrift Plan, as the
case may be, any funds received from such plans under the provisions hereof,
including any earnings thereon, within ninety (90) days of such receipt
or withdrawal.
(x) If Buyer cannot make the certification required by subsection (ix)
with respect to the assets to be transferred to the Buyer's Pension Plans within
sixty (60) days of Closing or will not accept the plan-to-plan transfer
contemplated by subsection (iv) within ninety (90) days of Closing then, to the
extent that Seller deems necessary to comply with Section 404 of ERISA, Seller
may diversify the investment of the segregated Transfer Amount according to its
investment strategy and the assets to be transferred will share proportionately
in the gains and losses incurred by
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Seller's Pension Plans prior to the date of transfer; provided, however, that
the Transfer Amount shall be invested in a manner that will provide sufficient
liquidity to enable Seller to transfer such assets in accordance with this
Section 3.04(b).
(xi) The transfers contemplated within this Section 3.04(b) shall be
effected in accordance with applicable law and regulations, including without
limitation Code Sections 414(1) and 411(d)(6) and the regulations thereunder.
3.04(c). Welfare Plans. (i) Effective as of the day following the
Closing Date, each of the Transferring Employees shall become participants in
such employee welfare benefit plans (as such term is defined in Section 3(1) of
ERISA) and other benefit arrangements as may be provided by Buyer (the "Buyer's
Welfare Plans"). Except as otherwise provided in this Agreement, the welfare
benefit plans and other benefit arrangements maintained by Seller or an ERISA
Affiliate (the "Seller's Welfare Plans") shall be responsible for providing
benefits with respect to all claims incurred on or before the Closing Date and
Buyer's Welfare Plans shall be responsible for providing benefits with respect
to claims incurred after the Closing Date. For the purposes of this Section, a
claim is incurred when the services giving rise to such claim are performed.
(ii) (A) Seller's Welfare Plans shall be responsible for providing
medical, life insurance or other benefits following termination of employment
with Buyer to any Transferring Employees (and their beneficiaries) who, on or
prior to the Closing Date, have satisfied the minimum requirements for such
post-retirement coverage (other than termination of active service) under such
Plans as in effect on the Closing Date ("Seller's Post-Retirement Group").
(B) The Closing Date Balance Sheet shall reflect a reserve (as adjusted in
accordance with this Section (B), the "Post-Retirement Reserve") in an amount
equal to the "expected post-retirement benefit obligation" (as such term is
defined in Statement of Financial Accounting Standards No. 106) for providing
medical, life insurance or other benefits following termination of employment to
Transferring Employees (and their beneficiaries) who will satisfy the minimum
requirements for post-retirement coverage in accordance with the terms of
Seller's Welfare Plans on the date hereof (other than termination of active
service) between the Closing Date and (x) with respect to all
Salaried-Transferring Employees
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and Hourly Transferring Employees located at the Lompoc Plant, March 1, 1993 and
(y) with respect to Hourly Transferring Employees located at the Antonito-No
Agua Plant, October 18, 1991 (such Transferring Employees and beneficiaries are
collectively referred to hereinafter as the "Buyer's Post-Retirement Group").
The Post-Retirement Reserve shall be determined by Seller's actuary and Buyer's
actuary prior to the Closing Date in accordance with FAS 106, based on the terms
of the post-retirement policies of Seller on the date hereof. The
Post-Retirement Reserve shall, following the Closing Date, be credited with
interest at a rate equal to the discount rate used to calculate the present
value of the expected post-retirement benefit obligation, compounded at the same
interval, and shall be charged with the costs of providing medical, life
insurance and other benefits following termination of employment to Buyer's
Post-Retirement Group following the Closing Date. Buyer or an affiliate shall be
fully responsible for liabilities and obligations with respect to, and shall
offer to provide such benefits to Buyer's Post-Retirement Group until such time
as the Post-Retirement Reserve is exhausted; provided, however, that Buyer
reserves the right to determine its post-retirement benefit policies (including
the right to reduce any benefits or increase the cost of providing such benefits
to Buyer's Post-Retirement Group at any time) and, except as may be required
under any Collective Bargaining Agreement assumed by Buyer pursuant to Section
3.04(a), Buyer shall not be obligated to maintain post-retirement benefits for
Buyer's Post-Retirement Group that are comparable to those offered under
Seller's post-retirement policies on the date hereof.
(C) Buyer shall reimburse Seller for any Claim (as defined in Section
9.02(a) hereof) which Seller incurs as a result of Buyer's decision to offer or
provide post-retirement benefits to Buyer's Post-Retirement Group that are not
comparable to those offered under Seller's policies as of the date hereof.
Seller shall reimburse Buyer for any Claim (as defined in Section 9.02(a)
hereof) which Buyer incurs as a result of either (i) Seller's decision to offer
or provide post-retirement benefits to Seller's Post-Retirement Group that are
not comparable to those offered under Seller's policies as of the date hereof or
(ii) Seller's failure to recognize service with Buyer after the Closing for
purposes of determining the benefits to which any of Seller's Post-Retirement
Group is entitled.
(iii) With respect to any disability benefits, Seller's Welfare Plans
shall be responsible for payment of any and all
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benefits (regardless of whether payment is required to be made after the Closing
Date) for: (A) any individual who is in receipt of such benefits as of the
Closing Date; (B) any individual who becomes disabled prior to the Closing Date
and who remains disabled for the length of any qualifying disability period; and
(C) any individual described in (A) or (B) above whose disability ceases after
the Closing Date and who subsequently becomes disabled prior to the expiration
of ninety days of active employment with Buyer, where such subsequent disability
is a continuation of such prior disability for which benefits were due under
Seller's Welfare Plans.
(iv) To the extent requested by either party, Buyer and Seller shall
cooperate in ensuring that benefit coverage for Transferring Employees prior to
the Closing Date is coordinated with coverage provided after the Closing Date.
Without limiting the generality of the foregoing, Buyer's welfare plans shall
provide that any expenses incurred by a Transferring Employee during 1991 on or
before the Closing Date shall be taken into account during the first plan year
of such welfare plans for the purposes of satisfying deductible and co-insurance
requirements and satisfaction of maximum out-of-pocket provisions to the same
extent as if such expenses had been incurred after the Closing Date. Further,
Buyer will provide coverage or continuation of coverage for all Transferring
Employees under a group health plan, which plan will not contain any exclusion
or limitation for preexisting conditions with respect to the benefits provided
thereunder.
3.04(d). Workers' Compensation. Seller will be responsible for and
will process or cause its insurance carrier to process in the usual and
customary manner all claims for workers' compensation by persons employed by or
who prior to the Closing were employed by Seller in the U.S. Filtration and
Minerals Business, whether insured or otherwise, arising out of events occurring
on or prior to the Closing Date (including, without limitation, claims existing
at the Closing Date).
3.04(e). Severance; Break-in-Service; Shut-Down Liabilities; Accrued
Vacation and Sick Leave. Seller will assume the liability for all direct and
indirect costs, expenses and liabilities of any sort whatsoever arising from or
relating to any claims by or on behalf of persons who at or prior to the Closing
are or were Salaried Employees of Seller in the U.S. Filtration and Minerals
Business
-36-
(including Transferring Employees) in respect of severance pay, shutdown
benefits, any other similar obligations (the "Termination Costs") relating to
the termination of such employee's employment, or any break in service or any
other event entitling someone to payments for such benefits ("Termination"),
which occurs on or prior to the Closing Date occasioned by the failure of Buyer
to offer such employees employment at their present locations to the extent
included in the Assets in accordance with Section 3.04(a) or arising from the
Termination of Transferring Salaried Employees by Buyer within six (6) months
thereafter up to the first $500,000, or any Termination Costs for the
individuals listed on Schedule 3.04(e). Buyer will assume the liability for all
such Termination Costs in excess of $500,000 and for all Termination Costs, if
any, resulting from the Termination of any Transferring Salaried Employee after
the expiration of six (6) months following Closing. Buyer will honor, and assume
liability for, Transferring Employees' entitlements to accrued vacation and sick
leave for which provision is made in the Closing Date Balance Sheet.
3.04(f). Employee Bonus and Incentive Plans. Buyer shall not assume
any bonus or incentive plans maintained by Seller, including without limitation
phantom stock plans, stock incentive plans, opportunity pay plans, long term
cash and incentive compensation plans, covering persons employed by or who prior
to the Closing Date were employed by the U.S. Filtration and Minerals Business.
Seller will make appropriate arrangements with covered employees in respect of
any such bonus or incentive plans.
3.05. Seller's Accounts Receivable: Seller's Accounts Payable.
3.05(a). Within ten business days after the Closing Date, Seller
shall provide Buyer with a schedule or computer printout of all accounts
receivable of the U.S. Filtration and Minerals Business which are includible in
the Closing Date Balance Sheet and are acquired by Buyer under Section 2.01 (the
"Seller Receivables"). Buyer agrees to use its reasonable best efforts to
collect the Seller Receivables in the ordinary course of its business; provided,
however, Buyer will not be obligated hereunder to use litigation or other
extraordinary means of collection. Buyer shall promptly require Seller to
purchase any of the Seller Receivables which remain unpaid after 90 days of
shipment in the case of customers located in the United States and 120 days in
the case of customers located outside of the United
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States; provided, Buyer shall promptly after obtaining knowledge thereof,
require Seller to purchase any Seller Receivables in respect of a customer (x)
who has commenced a case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law or (y) against whom such a case or proceeding
has been commenced. Commencing ten days following the Closing Date, Buyer shall
notify Seller of any such Seller Receivables and Seller shall purchase such
Seller Receivables for cash at 100% of the face value thereof within 10 days
after such notice; provided, however, that Seller shall receive a credit against
such cash purchase price in the amount of any applicable bad debt reserve
reflected in the carrying value of the Seller Receivables on the Closing Date
Balance Sheet. Buyer agrees to take such action as is necessary to revest title
in Seller to all such uncollected Seller Receivables returned to Seller and to
return to Seller the credit and collection files relating to such uncollected
Seller Receivables. Unless otherwise specified by an account debtor, Buyer will
apply all amounts collected from each account debtor to the oldest account
receivable relating to such account debtor. Buyer shall promptly remit to Seller
all amounts collected by Buyer in respect of Seller Receivables which have been
purchased by Seller pursuant to this Section 3.05(a).
3.05(b). Buyer authorizes Seller to retain a copy of the schedule of
uncollected Seller Receivables produced each month by Seller pursuant to the
Transitional Services Agreement. From time to time after the Closing, promptly
upon request by Seller, Buyer shall make available to Seller Buyer's personnel
responsible for administering Seller Receivables and cause such personnel to
provide Seller such information relating to Seller Receivables as Seller may
reasonably request.
3.05(c). Within ten business days after the Closing Date, Seller
shall provide Buyer with a schedule or computer printout of all accounts payable
of the U.S. Filtration and Minerals Business which are includible in the Closing
Date Balance Sheet and are assumed by Buyer under Section 2.04(a).
3.06. Defective Goods, Returns and Retentions.
From and after the Closing, Buyer, on behalf of Seller, shall
administer warranty claims and customer complaints or disputes concerning
allegedly defective,
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incomplete or non-conforming goods or products shipped by Seller at any time
prior to the Closing which goods or products relate to the U.S. Filtration and
Minerals Business to the extent such claims, complaints or disputes may be
resolved by the provision of replacement goods. Seller agrees to reimburse Buyer
in an amount equal to the amount by which the regular sales price of the
replacement goods exceeds historical levels of such replacement costs shown in
Schedule 4.23(a).
3.07. Undelivered Merchandise.
If after the Closing Date a customer justifiably claims that goods
purchased from the U.S. Filtration and Minerals Business prior to the close of
business on the Closing Date were not received by the customer, Buyer agrees to
ship the customer other goods to replace the undelivered goods at Seller's
expense.
3.08. Insurance Policies.
3.08(a). From and after the Closing, to the extent any liability or
obligation assumed by Buyer pursuant to this Agreement is paid, discharged or
otherwise provided for or covered by any insurance contract or similar agreement
to which Seller is a party, or under which Seller is a named insured or an
additional insured, Seller shall make available to Buyer the benefits of its
rights under any such contract or agreement to the full extent permitted by
such contract or agreement, and any funds received by Seller, provided that
Buyer shall agree to reimburse Seller for all reasonable out-of-pocket costs,
fees and expenses incurred in connection therewith including, without
limitation, any retroactive premium adjustments resulting therefrom and any
premium adjustments resulting from a change in Seller's loss history as a result
thereof. Any provision of this Agreement to the contrary notwithstanding, any
liability or obligation purported in this Agreement to be assumed by Buyer shall
not be deemed so assumed, and shall instead be retained by Seller if (and only
to the extent that) such liability or obligation, or portion thereof, is paid by
any insurance contract to which Seller is a party, or under which Seller is a
named or additional insured, provided that with respect to all such liabilities
and obligations purported in this Agreement to be assumed by Buyer, Buyer shall
agree to reimburse Seller for all reasonable out-of-pocket costs,fees and
expenses incurred in connection therewith including, without limitation, any
retroactive premium adjustments resulting therefrom and
-39-
any premium adjustments resulting from a change in Seller's loss history as a
result thereof.
3.08(b). Each of the parties hereto agrees that from and after the
Closing it will do all things reasonably required to carry out the intent of
this Section and agrees to execute such further documents, instruments and
assurances as may be necessary or appropriate in connection therewith subject
only to reimbursement of its reasonable out-of-pocket costs as set forth above.
3.09. Computer Software Agreement.
At the Closing, Buyer and Seller shall enter into a computer
software agreement substantially in the form of Exhibit I annexed hereto (the
"Computer Software Agreement").
IV. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer and New Celite, and
agrees, as follows:
4.01. Organization, Etc.
4.01(a). Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and has all
requisite power and authority, corporate and otherwise, to own, operate and
lease the properties and assets it now owns, operates and leases and to carry on
its business as presently conducted, to execute and deliver this Agreement and
the other documents and instruments to be executed and delivered by Seller
pursuant hereto and to consummate the transactions contemplated hereby and
thereby.
4.01(b). Seller is duly licensed or qualified to do business and is
in good standing in each jurisdiction in which the ownership, operation or lease
of property by it or the conduct of its business requires such licensing or
qualification, except where the failure to be so licensed or qualified or in
good standing would not have a material adverse effect on the business,
condition (financial or otherwise), operations, properties, assets or
liabilities of the U.S. Filtration and Minerals Business.
4.01(c). Seller has heretofore delivered to Buyer complete and
correct copies of its Certificate of Incorporation and Bylaws, in each case as
presently in
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effect, and Seller is not in default in the performance, observation or
fulfillment of said Certificate of Incorporation or Bylaws.
4.02. Authority.
The execution and delivery of this Agreement and the other documents
and instruments to be executed and delivered by Seller pursuant hereto, the
performance by Seller of its obligations hereunder and thereunder and the
consummation by Seller of the transactions contemplated hereby and thereby have
been duly authorized by the Board of Directors of Seller. Seller will deliver to
Buyer at or prior to the Closing complete and correct copies, certified by its
Secretary, of all resolutions theretofore duly and validly adopted by its Board
of Directors evidencing such authorization (which resolutions will not have been
rescinded prior to and will be in full force and effect on the Closing Date). No
other corporate act or proceeding on the part of Seller is, or, as of the
Closing, will be, necessary to approve the execution and delivery of this
Agreement by Seller, the execution and delivery of the other documents and
instruments to be executed and delivered by Seller pursuant hereto, the
performance by Seller of its obligations hereunder and thereunder, and the
consummation of the transactions contemplated hereby and thereby.
4.03. Execution and Binding Effect.
This Agreement has been duly and validly executed and delivered by
Seller and constitutes, and the other documents and instruments to be executed
and delivered by Seller pursuant hereto upon their execution and delivery by
Seller on or prior to the Closing Date will constitute (assuming in each case
the due and valid authorization, execution and delivery thereof by the other
parties thereto), legal, valid and binding agreements of Seller enforceable
against Seller in accordance with their respective terms except as
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting enforcement of creditors' rights generally.
4.04. Consents and Approvals; No Violation.
Except (i) as set forth in Schedule 4.04 attached hereto or (ii)for
such permits, authorizations, consents or approvals the absence of which,
individually or in the aggregate, would not have a material adverse effect on
the U.S. Filtration and Minerals Business or the transactions contemplated
hereby, no permit, authorization, consent or
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approval of any governmental or regulatory authority is required of Seller, as a
condition to the lawful consummation of the transactions contemplated by this
Agreement. Except (i) as set forth in Schedule 4.04 attached hereto or
(ii) for such filings, declarations, registrations, permits, consents, approvals
or notices the absence of which, individually or in the aggregate, would not
have a material adverse effect on the U.S. Filtration and Minerals Business or
the transactions contemplated hereby, neither the execution, delivery and
performance of this Agreement or the other documents and instruments to be
executed and delivered pursuant hereto by Seller, nor the sale by Seller of the
Assets pursuant to this Agreement will (assuming compliance with the HSR Act)
(i) conflict with, violate or result in any breach of any provision of the
Certificate of Incorporation or Bylaws of Seller, (ii) result in a violation or
breach of, or constitute a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, franchise, permit, agreement,
lease or other instrument or obligation to which Seller or any subsidiary of
Seller is a party or by which Seller or any subsidiary of Seller or any of their
respective properties or assets may be bound, (iii) violate any statute,
ordinance or law or any rule, regulation, order, writ, injunction or decree of
any court or of any public, governmental or regulatory authority applicable to
Seller or to which any of its properties or assets may be bound, or (iv) require
any filing, declaration or registration with, or permit, consent or approval of,
or the giving of any notice to, any public, governmental or regulatory
authority.
4.05. Financial Statements.
Attached hereto as Exhibit J are unaudited combined statements of
assets acquired and liabilities assumed of the Filtration and Minerals Business
as at the end of each of the fiscal years ended December 31, 1989 and 1990, and
its unaudited consolidated statements of income for the fiscal years ended
December 31, 1989 and 1990, including the basis of presentation and the related
supporting schedules (the "Annual Business Financial Statements"). The Annual
Business Financial Statements have been prepared from, and are in accordance
with, the books and records of Seller and Manville used in the preparation of
Manville's audited consolidated financial statements, and present fairly the
assets to be acquired and the liabilities to be assumed of the Filtration and
Minerals Business and its results of operations as at the dates and for the
periods therein referred to, in each case in accordance with generally accepted
accounting principles,
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except as disclosed in the notes to the Annual Business Financial Statements,
consistently applied throughout the periods involved, provided that Seller makes
no representations concerning the Annual Business Financial Statements to the
extent (i) Manville makes representations in Section 3.06 of the Joint Venture
Stock Purchase Agreement concerning the portions of such Annual Business
Financial Statements that relate to the Joint Venture Companies and (ii)
Manville B.V. makes representations in Section 3.06 of the European Stock
Purchase Agreement concerning the portions of such Annual Business Financial
Statements that relate to the European Companies. Seller has heretofore
delivered to Buyer earnings statements for the Filtration and Minerals Business
for the interim periods ended May 31, 1990 and 1991. Such earnings statements
have been prepared in the ordinary course of business by Seller's accounting
department for internal use of Seller's management.
4.06. Inventory.
All finished product inventories, net of reserves for obsolete and
excess inventory, included in the Assets will be in salable condition on the
Closing Date and will be located at an owned or leased location included in the
Assets or in transit thereto. All work-in-process inventories, net of reserves
for obsolete and excess inventory, included in the Assets will, on the Closing
Date, be capable of being processed or made into salable condition in the
ordinary course of business, and will be located at an owned or leased location
included in the Assets. All packaging materials, purchased raw materials and
fuels inventories, net of reserves for obsolete and excess inventory, included
in the Assets were purchased for use at the plants and facilities of the U.S.
Filtration and Minerals Business and all such packaging materials, purchased raw
materials and fuels are in usable condition. For purposes of this Section 4.06,
inventories of any finished products shall not be considered salable if they do
not meet a customer's specifications or if they exceed the respective quantities
of such finished products (by grade) that were sold in the twelve months ending
April 30, 1991, and inventories of any packaging materials, purchased raw
materials and fuels shall not be considered usable if they exceed the respective
quantities of such packaging materials, purchased raw materials and fuels that
were utilized in the twelve months ending April 30, 1991.
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4.07. Absence of Certain Changes or Events.
With respect to the U.S. Filtration and Minerals Business, or the
Assets, except as and to the extent set forth in Schedule 4.07 attached hereto,
since December 31, 1990, Seller has not, without Buyer's prior written consent:
4.07(a). materially written down or materially written up the value
of any inventory of the U.S. Filtration and Minerals Business, except for
write-downs, write-ups and write-offs in the ordinary course of business
consistent with past practice;
4.07(b). canceled or compromised any material claims of Seller, or
waived any other rights of substantial value, or sold, transferred or otherwise
disposed of any of the material properties or assets, real, personal or mixed,
tangible or intangible, of the U.S. Filtration and Minerals Business except in
the ordinary course of business consistent with past practice;
4.07(c). disposed of or permitted to lapse any patent, application
for patent, trademark, application for trademark, assumed name, servicemark,
application for servicemark, Trade Name, copyright, application for copyright or
license material to the operations of the U.S. Filtration and Minerals Business
or under which the U.S. Filtration and Minerals Business has any right or
license, or disposed of or disclosed to any person (other than Buyer and its
representatives) any trade secret, formula, process or know-how material to the
operations of the U.S. Filtration and Minerals Business or under which the U.S.
Filtration and Minerals Business has any right or license, except in each case
in the ordinary course of business consistent with past practice;
4.07(d). granted any general uniform increase in the compensation of
employees of Seller engaged in the U.S. Filtration and Minerals Business
(including, without limitation, any increase or change pursuant to any bonus,
pension, profit-sharing, retirement or other plan or commitment), or any
increase in any such compensation payable or to become payable to any officer or
employee thereof, other than in the ordinary course of business and consistent
with past practice;
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4.07(e). operated the U.S. Filtration and Minerals Business other
than in the ordinary course of business consistent with past practice;
4.07(f). made any material changes in sales pricing practices or
terms in respect of the U.S. Filtration and Minerals Business or entered into
any Sales agreements for a term in excess of one year;
4.07(g). Suffered any damage, destruction or casualty loss, whether
or not covered by insurance, that would have a material adverse effect on the
U.S. Filtration and Minerals Business;
4.07(h). suffered any material adverse change in the operations,
assets, liabilities, properties, business or condition (financial or otherwise)
of the U.S. Filtration and Minerals Business;
4.07(i). failed promptly to pay and discharge current liabilities of
the U.S. Filtration and Minerals Business in accordance with past practice,
except where disputed in good faith;
4.07(j). made any change in any method of accounting or accounting
practice or policy used by the U.S. Filtration and Minerals Business other than
such changes required by generally accepted accounting principles; or
4.07(k). agreed, whether in writing or otherwise, to take any of the
actions set forth in this Section 4.07.
4.08. Employee Benefit Plans; ERISA.
4.08(a). Schedule 4.08(a) attached hereto sets forth each "employee
benefit plan" as defined in Section 3(3) of ERISA, and each other plan or
arrangement, that provides any benefit to any Transferring Employee (as such
term is defined in Section 3.04(b)) that is maintained by Seller or any ERISA
Affiliate (the "Employee Plans") as well as any such plans to which Seller or
any ERISA Affiliate contributes or has contributed on behalf of any of the
Transferring Employees (including multiemployer plans) which are not maintained
by Seller or any ERISA Affiliate. Seller has previously delivered or made
available to Buyer true and complete copies (or true and complete written
summaries in the case of oral arrangements) of (i) all Employee Plans (including
all amendments thereto, material procedures that
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have been adopted pending amendment and side letters or agreements in
connection therewith) and all related summary plan descriptions or other related
descriptive material, (ii) to the extent applicable to each Employee Plan, the
most recent Internal Revenue Service determination letters, annual reports (Form
5500 series) and accompanying schedules, actuarial reports or valuations, asset
valuation statements, insurance contracts and policies, PBGC Forms 1 and letters
of exemption under Section 501(c)(9) of the Code, and (iii) for any tax
qualified plan, separately, any amendments not covered by the most recent
determination letter.
4.08(b). Except as specifically disclosed in Schedule 4.08(a), none
of the Transferring Employees is entitled to (i) any pension that is unfunded or
(ii) any pension benefit to be paid after termination of employment. Except with
respect to continuation coverage under group health plans pursuant to Section
4980B(f) of the Code and except as specifically described in Schedule 4.08(b),
no welfare or other benefits whatsoever are payable to any of the Transferring
Employees after termination of employment (whether or not pursuant to any plan
or benefit arrangement that is subject to ERISA), including but not limited to
any post-retirement medical or death benefits, any severance benefits or any
disability benefits.
4.08(c). Except as set forth in Schedule 4.08(c), each Employee Plan
that is a "welfare plan" (as defined in Section 3(1) of ERISA) is either funded
through insurance or is unfunded and there are no reserves, assets, surplus or
prepaid premiums under any such welfare plan. Except as set forth in Schedule
4.08(c), there are no outstanding loans between any Employee Plan and any
present or former participant thereof.
4.08(d). Neither Seller nor any ERISA Affiliate has incurred any
liability under Title IV of ERISA arising in connection with the termination of
any plan covered or previously covered by Title IV of ERISA that could become,
after the Closing Date, an obligation of Buyer or any of its Affiliates. With
respect to each Employee Plan any amounts withheld from the compensation of any
individual, any employer contributions with respect to such amounts, any
required employer contributions with respect to benefits accruing prior to the
Closing Date, and a proportionate share of any other contribution required to be
made during the plan year in which the Closing Date occurs have been made or
will
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be made in accordance with the provisions of Section 3.04(b) hereof.
4.08(e). Except as described in Schedule 4.08(e), each Employee Plan
that is a pension plan, as defined in Section 3(2) of ERISA, is qualified under
Section 401(a) of the Code. Seller or an ERISA Affiliate has received a
favorable determination letter for each such Pension Plan that covers the
amendments required by the Tax Reform and Fiscal Responsibility Act of 1982, the
Deficit Reduction Act of 1984 and the Retirement Equity Act of 1984, and nothing
has occurred since the date of such letter that would adversely affect such
qualification (including, but not limited to, failure to make any requisite
amendments to such Plans or to comply with any legal requirement pending such
amendments). The current value of the assets of each Employee Plan which is
subject to Title IV of ERISA or Section 412 of the Code exceeds the value of
such Plan's Accumulated Benefit Obligation (as defined in Statement of Financial
Accounting Standards No. 87 and determined on the basis of Manville plan funding
assumptions, with such "current value" and "benefit liabilities" to be defined
in accordance with Sections 3(26) and 4001(a)(16) of ERISA, respectively).
4.08(f). Except as set forth in Schedule 4.08 (f), none of the
Transferring Employees is or has been covered by any "Multiemployer Plan" (as
defined in Section 3(37) of ERISA) or any plan under which more than one
employer makes contributions (within the meaning of Section 4064(a) of ERISA).
Seller has provided Buyer with written estimates of the potential liability of
Seller or Manville under any such plan. The consummation of the transactions
contemplated under this Agreement will not (x) accelerate the time of payment,
increase the vesting, or increase the amount of any compensation or benefits due
to any Transferring Employee (except to the extent provided in this Agreement or
specifically noted in Schedule 3.04(a) or 4.08 (a)), or (y) otherwise result in
the receipt by any Transferring Employee of a parachute payment within the
meaning of Section 280G of the Code under any Employee Plan, or (z) entitle any
Transferring Employee to severance pay (except to the extent provided in Section
3.04 or pursuant to an arrangement of Buyer's listed on Schedule 3.04(a) or an
arrangement of Seller's listed on Schedule 4.08(a)), unemployment compensation
or any similar payment. Except pursuant to the employment agreements described
in Schedule 4.08(f) and except as required pursuant to the Collective Bargaining
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Agreements, Seller, to the best of its knowledge, is not (and following the
Closing Date, Buyer will not be) required to continue to employ any of the
Transferring Employees or any group of the Transferring Employees, continue to
cover any of the Transferring Employees or any group of the Transferring
Employees under any Employee Plan or other benefit plan or arrangement listed in
Schedule 4.08(f) or otherwise, and Seller, to the best of its knowledge, is
entitled to terminate any such plan or arrangement at any time with respect to
any of the Transferring Employees or any group of the Transferring Employees.
4.08(g). Except as disclosed in Schedule 4.08(g) or Schedule 3.04(a)
attached hereto, there are no arrangements or contracts with any director,
officer or independent contractor that require any deferred compensation or
benefits to be paid or provided following termination of service and there are
no such arrangements with any person who is not a Transferring Employee that
would impose any liability on Buyer.
4.08(h). With respect to the U.S. Filtration and Minerals Business,
Seller has complied in all respects with the advance notice provisions of the
WARN Act.
4.08(i). Buyer shall not have any liability with respect to any
employee pension benefit plan, employee welfare benefit plan, any fringe benefit
arrangement or any other employee benefit plan or arrangement whatsoever
(whether or not subject to ERISA), solely as a result of being considered to be
the same employer as, or having been in the same controlled group of
corporations with Seller or any entity that is affiliated with Seller.
4.09. Labor Relations.
4.09(a). Except as set forth in Schedules 3.04(a), 4.08(a), 4.08(f),
4.08(g) and 4.09 attached hereto, Seller is not a party to or bound by any
employment agreement, arrangement or understanding or any collective bargaining
or other labor agreement, or any pension, retirement, stock option, stock
purchase, savings, profit sharing, deferred compensation, severance, retainer,
consultant, bonus, group insurance or other incentive or welfare contract, plan
or arrangement which relates to the operations of the U.S. Filtration and
Minerals Business. Except as set forth in Schedules 3.04(a) and 4.09, no
employees of Seller employed in the U.S. Filtration and Minerals Business are
represented
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by any labor organization, and, as of the date hereof, no labor organization or
group of employees of Seller employed in the U.S. Filtration and Minerals
Business has made a demand for recognition, has filed a petition seeking a
representation proceeding or given Seller notice of any intention to hold an
election of a collective bargaining representative and no strike, work stoppage
or labor disturbance exists or, to Seller's best knowledge, is threatened which
involves any employees of Seller employed in the U.S. Filtration and Minerals
Business.
4.09(b). The Collective Bargaining Agreements are in full force and
effect in accordance with their terms and neither Seller nor, to Seller's best
knowledge, any other party thereto is in default with respect to any of its
obligations thereunder and, to Seller's best knowledge, there has not occurred
any event which, with notice or lapse of time or both, would constitute such
default. Except as set forth in Schedule 4.09, to Seller's best knowledge there
are no violations of the Collective Bargaining Agreements and, as of the date of
this Agreement, there are no pending grievance proceedings or claims under such
agreements.
4.09(c). Except as set forth in Schedule 4.09, there are no pending
complaints or charges or, to Seller's best knowledge, threatened complaints or
charges against Seller with respect to any employee or group of employees of
Seller employed in the U.S. Filtration and Minerals Business or filed or pending
with any federal, state or local governmental authority or court alleging
employment discrimination by Seller with respect to any employee or group of
employees of Seller employed in the U.S. Filtration and Minerals Business.
4.09(d). Hours worked by and payment made to employees of Seller
employed in the U.S. Filtration and Minerals Business have not been in violation
of the federal Fair Labor Standards Act or any other applicable state or local
law dealing with such matters.
4.10. Real Property.
4.10(a). Schedule 4.10(a) attached hereto sets forth a true and
complete list and legal description of all the land (including patented mining
claims, mineral rights only and surface rights only, except mineral rights of
the type described in Section 4.12 hereof) owned by Seller or Manville and used
or held for use in the U.S. Filtration and
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Minerals Business and, with respect to each parcel, briefly describes all
improvements thereon (all said land and all improvements thereon being
collectively called the "Real Property"). Except as set forth on Schedule
4.10(a), each parcel of Real Property, including all mineral rights appertaining
thereto, is free and clear of any mortgage, deed of trust, liability, claim,
security interest, lien or encumbrance other than (i) liens for current taxes
not yet due and payable, (ii) liens and encumbrances that do not materially
adversely affect the use or value of such Real Property as currently used or as
reserved for use, and (iii) specific matters of record or with respect to which
Buyer shall receive affirmative title coverage. If any of the Real Property is
encumbered by a mortgage or deed of trust, no notice has been received by Seller
from any mortgagee, or trustee or beneficiary thereunder, asserting that a
default or breach exists thereunder, and, to the best of Seller's knowledge, no
default or breach exists thereunder and there has not occurred any event which
with notice or lapse of time or both would constitute such a default or breach.
With respect to the Real Property other than the Real Property located at
Lompoc, California, there are no encroachments or projections of improvements
located on any other property onto any part of such Real Property nor do any
improvements located on any part of such Real Property encroach or project upon
other properties.
4.10(b). Except as described in Schedule 4.10(b), there are no
pending, or to the best knowledge of Seller, threatened, actions, suits or
proceedings, including condemnation or similar proceedings, against or affecting
the Real Property or any portion thereof, or relating to or arising out of the
interest of Seller in the Real Property or any portion thereof, in any court or
before or by any federal, state, county or municipal department, commission,
board, bureau, agency, or other governmental instrumentality which, if decided
contrary to Seller's interests, would have a material adverse effect on the
value or use of the Real Property as currently used or reserved for use. Except
as described in Schedule 4.10(b), to the best knowledge of Seller, no special
assessment is pending or has been proposed against any portion of the Real
Property.
4.10(c). To the best knowledge of Seller, no portion of the Real
Property is in violation of, or used or occupied in a manner in violation of,
any building code, zoning ordinance, certificate of occupancy, or any other
federal, state or municipal law, ordinance, order or
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regulation or statute applicable thereto, which violation would have a material
adverse effect on the value or use of such Real Property as currently used or
reserved for use. To the best knowledge of Seller, all of the Real Property used
by Seller or reserved for use by Seller in connection with the U.S. Filtration
and Minerals Business conforms with the uses permitted by the applicable zoning
ordinances (without benefit of the prior nonconforming use doctrine) or pursuant
to an existing permanent variance, permit or exception to such ordinance which
variance, permit or exception would inure to the benefit of Buyer as owner of
the Real Property in all instances where the failure to so conform or the
failure of such variance, permit or exception to inure to the benefit of Buyer
would have a material adverse effect on the use or value of such Real Property
as currently used or reserved for use.
4.10(d). To the best knowledge of Seller, the improvements situated
on the Real Property which are necessary to operate the U.S. Filtration and
Minerals Business as currently conducted by Seller are structurally sound and in
serviceable condition, order and repair, taking into account their current use,
age, ordinary wear and tear and normal maintenance. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES SPECIFICALLY PROVIDED FOR HEREIN, SUCH
IMPROVEMENTS ARE SOLD TO BUYER "WHEREAS" AND "AS IS" WITHOUT IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR INTENDED USE OK OTHERWISE.
4.10(e). Schedule 4.10(e) attached hereto sets forth a true and
complete list of all unrecorded licenses, leases, use agreements and
understandings (in each case, whether oral or written) relating to the use or
occupancy of the Real Property by others. Except as set forth in Schedule
4.10(e), all such licenses, leases, use agreements and understandings are in
full force and effect in accordance with their terms and neither Seller,
Manville nor to the best knowledge of Seller, any other party thereto is in
default with respect to any of its obligations thereunder, and to the best
knowledge of Seller, there has not occurred any event which with notice or the
lapse of time or both would constitute such default and all such licenses,
leases, use agreements and understandings are terminable on not more than six
months prior written notice by Seller.
4.10(f). Except as set forth in Schedule 4.10(f), Seller or
Manville has unrestricted legally enforceable access to and from railroad
rights of way, public highways,
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roads or streets sufficient to permit the conduct of the U.S. Filtration and
Minerals Business as currently operated or reserved for operation by Seller, and
to the best of Seller's knowledge, there is no currently existing fact or
condition which would result in the interference with or termination of such
access.
4.10(g). Except as set forth on Schedule 4.10(g), to the best of
Seller's knowledge (i) no portion of the Real Property has ever been used as a
cemetery; (ii) Seller has not received any written notice that there are any
endangered or threatened species of animal or plant which at any time during the
past five years have lived on any of the Real Property; and (iii) Seller has not
received any written notice that any portion of the Real Property is a
"wetland," as that term is used under any Federal law, rule or regulation or any
state or local law, rule or regulation applicable in the state and locality in
which the Real Property is situated.
4.10(h). All public utilities required for the present activities of
the U.S. Filtration and Minerals Business on the Real Property connect into the
Real Property or are available to the Real Property at the boundaries thereof.
4.10(i). No individual, governmental authority, corporation or
partnership has any option to purchase, or right of first refusal with respect
to, any material portion of the Real Property, or is party to any agreement
which, under any circumstances, could become such an option or right of first
refusal. Schedule 4.10(i) contains a list of all options to purchase or acquire
any interest in real property, or rights of first refusal with respect to any
interest in real property (including any interest which, upon acquisition, would
be a Leasehold Interest), which options or rights of first refusal are held by
Seller and relate to the U.S. Filtration and Minerals Business. With respect to
each such option or right of first refusal so listed on Schedule 4.10(i), said
Schedule includes the legal description of the land as to which there is an
option or right of first refusal and a brief description of any improvements
thereon.
4.10(j). To the best knowledge of Seller, neither Manville nor any
subsidiary of Manville owns or holds any interest whatsoever in any real
property which Seller or Manville is holding primarily because it contains or
may contain commercial quality diatomaceous earth or perlite ore,
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except the Real Property, the Leasehold Interests and the Unpatented Mining
Claims. Neither Manville nor any subsidiary of Manville owns or holds any
interest whatsoever in real property situated Within 25 miles of any of the
unpatented mining claims referred to in Section 4.12, any of the Real Property
or any of the Leasehold Interests located at Lompoc, California or No Agua, New
Mexico except for the Real Property, the Leasehold Interests and the Unpatented
Mining Claims. Except as set forth in Schedule 4.10(j), Seller and Manville have
not identified any diatomaceous earth deposits of commercial quality in any
location.
4.11. Leasehold Interests.
Schedule 4.11 attached hereto sets forth a true and complete list of
all leases, subleases, rental or other occupancy agreements relating to any real
property and any rights to use or occupy real property, or rights or interests
therein, held by Seller as lessee or sublessee (in each case, whether recorded
or unrecorded) and used or held for use in or relating to the U.S. Filtration
and Minerals Business other than the Real Property (the "Leasehold Interests").
All of the Leasehold Interests are in full force and effect in accordance with
their terms and neither Seller, nor, to the best knowledge of Seller, any other
party thereto is in default or breach with respect to any of its obligations
thereunder and there has not occurred any event which, with notice or lapse of
time or both, would constitute such default or breach. Seller has not received
any written notice that there are any underlying mortgages or deeds of trust
affecting any leased real property and having priority over the Leasehold
Interest, or rights or interests therein, used by Seller. Seller is in full use
or possession of the real property subject to the Leasehold Interests, or rights
or interests granted therein. To the best knowledge of Seller, Seller is not
using any real property or interest therein subject to a Leasehold Interest in
violation of any law, regulation, code, ordinance or decree or other legal
requirement. The representations and warranties contained in Sections 4.10(b),
(f), (g) and (h) shall be deemed to apply to the real property, or interests
granted therein, which is the subject of a Leasehold Interest; provided however,
that for this purpose the representations made in Sections 4.10(f) and (h) shall
be limited to the best knowledge of Seller.
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4.12. Unpatented Mining Claims, Surface Rights and Water Rights.
4.12(a). Schedule 4.12(a) hereto sets forth a true and complete list
of all unpatented mining claims located and held by Seller under the Mining Law
of 1872, as amended (30 USC Section 21 et seq.) (the "Mining Law of 1872") which
relate to the U.S. Filtration and Minerals Business (the "Unpatented Mining
Claims").
4.12(b). With respect to Unpatented Mining Claims, subject only to
the paramount title of the United States, to the best of Seller's knowledge: (1)
the unpatented mining claims were laid out and monumented consistent with
industry practices on federal lands which were open to entry under the Mining
Law of 1872 at the time of location; (2) location notices and certificates were
properly recorded and filed with appropriate governmental authorities; (3)
affidavits of assessment work, notices of intent to hold, or verified reports
were timely and duly recorded and filed with appropriate agencies for each of
the Unpatented Mining Claims for each year, through 1990, in which such
affidavit, notice or report was required to be filed; (4) the work and
expenditures described in said affidavits, notices and reports were in fact made
and performed in a good faith effort to satisfy assessment work requirements;
(5) the Unpatented Mining Claims are free and clear of liens, production
royalties, advance royalties, rents, bonuses or bonus payments or finder's fees
in favor of any party that have not been disclosed by Seller to Buyer in
Schedule 4.14; (6) Seller has no knowledge of material conflicting claims or
activities or possession by third parties in anticipation of such claims, except
as set forth in Schedule 4.12(b); and (7) Seller has located each such
Unpatented Mining Claim in the good faith expectation of discovering valuable
minerals.
4.12(c). Where Seller's ownership of Unpatented Mining Claims does
not give Seller surface rights of ingress and egress and use of the surface of
such mining claims for mining and related purposes, Seller has valid and
enforceable agreements with the owners of such surface rights permitting Seller
access to such claims for mining and related purposes to the extent set forth in
Schedule 4.12(c). Seller is not in default with respect to any of its
obligations thereunder and, to Seller's best knowledge, there has not occurred
any event which, with notice or lapse of time or both, would constitute such
default. The agreements set forth in Schedule 4.12(c) are fully assignable and
by their terms do
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not require compensation to the surface owner other than for damage to crops,
improvements or pasture land.
4.12(d). Seller owns and operates a water well at Antonito, Colorado
as described in the Judgment and Decree Adjudicating Water Rights dated December
26, 1974 (well number 1W-882) and water xxxxx in No Agua, New Mexico. Such xxxxx
constitute all of Seller's adjudicated water rights appurtenant to such Real
Property and will be conveyed to Buyer at Closing to the maximum extent
permitted by law.
4.13. Personal Property.
Schedule 4.13 attached hereto sets forth a list and brief
description from Seller's business records as of May 31, 1991 of all vehicles,
rail cars, furniture, machinery, equipment, fixtures and other personal property
owned, leased or used by Seller or Manville in the U.S. Filtration and Minerals
Business and having a value in any one case exceeding $25,000, other than
inventory, raw materials or work-in-progress.
4.14. Title to Assets.
Except as set forth in Schedule 4.14 hereto, at the Closing, all of
the Assets described in Section 4.13 to be sold or assigned hereunder by Seller
to Buyer will be free and clear of any mortgages, deeds of trust, pledges,
liens, security interests, conditional and installment sale agreements,
encumbrances, charges or other claims of third parties of any kind
(collectively, the "Liens"), other than (A) Liens securing or relating to
liabilities or obligations which are to be assumed by Buyer pursuant to Section
2.04 hereof; (B) Liens for current taxes and assessments not yet past due; or
(C) Liens that do not materially detract from the value of the assets described
in Schedule 4.13 taken as a whole. Except as set forth in Schedule 4.14, all
Assets, including, without limitation, books and records (except for offsite
computer databases addressed separately in the Transitional Services Agreement),
geological maps, and drill cores are, or on the Closing Date will be, located at
locations included in the Assets or at locations agreed to by Buyer prior to the
Closing Date.
4.15. Condition of Assets.
4.15(a). Except as set forth in Schedule 4.15 attached hereto, the
Assets which are necessary to operate
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the Filtration and Minerals Business as currently conducted by Seller are in
operating condition, order and repair, taking into account their current use,
age, ordinary wear and tear and normal maintenance. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES SPECIFICALLY PROVIDED FOR HEREIN, ALL OF THE
TANGIBLE ASSETS INCLUDED IN THE ASSETS ARE SOLD TO BUYER "WHEREAS" AND "AS IS"
WITHOUT IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR INTENDED USE OR
OTHERWISE.
4.15(b). All properties and assets not owned by but used in the U.S.
Filtration and Minerals Business are in such condition that upon the return of
such properties and assets to their owners in the current condition of such
properties and assets, normal wear and tear excepted, at the end of the relevant
lease terms or as otherwise contemplated by the applicable agreements with the
owners thereof, the obligations of Seller or Manville to such owners will be
discharged.
4.16. Patents, Trademarks and Copyrights.
Schedule 4.16 attached hereto sets forth, to the best knowledge of
Seller, a true and complete description and ownership of (a) all Trade Names,
patents, applications for patents, inventions, copyrights, applications for
copyrights, licenses, trademarks and servicemarks, applications and
registrations for trademarks and servicemarks, royalty and similar agreements
and proprietary rights of any nature used primarily in the U.S. Filtration and
Minerals Business during the one-year period prior to the date of this Agreement
and (b) certain software. Categories of items, such as blueprints and
advertising literature, that are too voluminous to enumerate individually are
listed on said Schedule by general category. Seller owns such proprietary or
contract rights to the extent set forth in such Schedule 4.16 (the "Seller's
Business Property") and has the right to transfer the Seller's Business Property
without the consent of any third party, except as otherwise noted thereon.
Except as set forth in Schedule 4.16 hereto, Seller is not obligated to make
license, royalty or other payments of any kind to any person in respect of the
use or ownership of the Seller's Business Property. Schedule 4.16 also sets
forth a complete and correct list of any material rights in or to the Seller's
Business Property which have been granted to any person. To the best knowledge
of Seller, there has not been any infringement or unauthorized use by Seller of
any trademark, trade name, servicemark, service name, patents, trade secrets,
copyright, license or rights therein belonging
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to any third party, in connection with the U.S. Filtration and Minerals
Business. To the best knowledge of Seller, except as set forth on Schedule 4.16,
there has not been any infringement or unauthorized use by any third party of
any of the Seller's Business Property.
4.17. Disclosure.
The specification of any dollar amount in this Agreement is not
intended to imply that such amounts, or higher or lower amounts, are or are not
material. The fact that something is disclosed in a schedule does not
necessarily mean that it is relevant to such schedule or that it meets the
materiality standard of such schedule.
4.18. Insurance.
Schedule 4.18 hereto sets forth a complete and accurate list of all
material policies of insurance of any kind or nature, including, without
limitation, policies of life, fire, theft, product liability, completed
operations, workers' compensation, health, employee fidelity and other casualty
and liability insurance presently in effect with respect to the U.S, Filtration
and Minerals Business. All such policies are valid, outstanding and enforceable
policies and since December 31, 1990, there has been no material increase in
premiums which were attributable to the operations of the U.S. Filtration and
Minerals Business. There is no pending material dispute between Seller and any
insurance company (or successor to any insurance company) with respect to the
U.S. Filtration and Minerals Business concerning any matter including, without
limitation, coverage or the amount of an insurable loss.
4.19. Certain Contracts and Commitments.
4.19(a). Schedule 4.19 hereto sets forth a true and complete list of
agreements, contracts or commitments relating to the U.S. Filtration and
Minerals Business which are material to the business, operations or financial
condition of the U.S. Filtration and Minerals Business or which (i) call for
fixed payments thereunder of more than $100,000 in one year from the date
hereof; (ii) extend more than six months from the date hereof and call for
payments thereunder of more than $200,000; (iii) were not made in the ordinary
course of business; (iv) are non-competition, confidential information,
exclusive, dealings or similar agreements; (v) are distributorship or sales
agency
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agreements; (vi) are contracts involving the commitment or payment in excess of
$100,000 for the future purchase of materials, supplies, services or equipment;
(vii) require aggregate capital expenditures in excess of $100,000; (viii) are
mortgages, pledges, conditional sales contracts, security agreements, factoring
agreements or other similar agreements with respect to any real or personal
property included in the Assets; (ix) are capital or operating leases of
machinery or equipment; (x) relate to disposal or transportation of waste that
is considered hazardous under any applicable state or federal laws; or (xi)
provide for material indemnification by Seller. Complete and correct copies of
each such agreement have been made available to Buyer. Schedule 4.19 includes a
statement as to each agreement, contract or commitment identified on such
Schedule, as to whether such agreement, contract or commitment shall be either
(x) assigned to and assumed by Buyer, (y) canceled, or (z) retained by Seller.
4.19(b). Seller is not in default in any material respect under any
contracts or commitments referred to in Schedule 4.19. To Seller's best
knowledge, there is no default in any material respect, and there is no basis
for a claim of such default, under any contracts or commitments referred to in
Schedule 4.19 by any party to such contract or commitment other than Seller.
Except as disclosed in such Schedule, Seller is not a party to, or bound by, any
non-compete, non-disclosure, exclusive dealings or similar agreement which in
any way restricts the operation of the U.S. Filtration and Minerals Business or
which would be binding upon Buyer after the Closing.
4.20. Ability to Conduct Business.
4.20(a). Neither Seller nor any of its affiliates is subject to or
bound by any judgment, order, writ, injunction or decree of any court or of any
governmental authority or of any arbitration which, after the Closing Date,
would prevent the use by Buyer of assets or rights of any nature material to the
U.S. Filtration and Minerals Business, or impair the conduct by Buyer of the
U.S. Filtration and Minerals Business, in each case in accordance with present
practices. Neither Seller nor any of its affiliates is a party to, bound by or a
beneficiary of, any agreement which, after the Closing, would prevent the use by
Buyer of any Assets material to the U.S. Filtration and Minerals Business, or
impair the conduct by Buyer of the U.S. Filtration and Minerals Bussiness, in
each case in accordance with present practices and subject to obtaining all
requisite
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consents and approvals identified in Schedule 4.04 and Schedule 4.19.
4.20(b). There is no interest in real property, personal property,
mixed property, tangible property or intangible property of any nature, owned by
Manville or by a subsidiary of Manville other than Seller, which, if owned or
held by Seller, would be required to be disclosed in any schedule described in
this Article IV.
4.20(c). Except for services to be provided under the Transitional
Services Agreement and the assets and rights to be acquired under the Business
Property Transfer Agreement and the Computer Software Agreement, at the Closing
hereunder, Buyer will acquire and possess all assets and rights of any nature
whatsoever necessary to enable it to carry on the U.S. Filtration and Minerals
Business in all material respects as heretofore conducted by Seller.
4.21. Compliance with Applicable Law.
Schedules 4.21 and 4.24 attached hereto set forth a true and
complete list of all permits, licenses, authorizations, rights, approvals and
registrations with and under all Federal, state, local and foreign laws,
authorities and agencies required to carry on the U.S. Filtration and Minerals
Business as presently conducted, except for such permits, licenses,
authorizations, rights, approvals and registrations the absence of which would
not, individually or in the aggregate, have a material adverse effect on the
Assets or the conduct of the U.S. Filtration and Minerals Business as currently
conducted by Seller (the "Seller Approvals"). All Seller Approvals are in full
force and effect and, to the best knowledge of Seller, no suspension or
cancellation of any of them is threatened. Except as set forth on Schedule 4.21
or 4.24, Seller is conducting the U.S. Filtration and Minerals Business in
compliance with all applicable laws, regulations, ordinances and rules of any
Federal, state, local or foreign government, authority or agency except where
the failure to so comply would not have a material adverse effect on the
Assets or the conduct of the U.S. Filtration and Minerals Business as currently
conducted by Seller. To the best knowledge of Seller and except as set forth in
Schedules 4.21 or 4.24, Seller has not received any written notice since January
1, 1988 asserting that it is in violation of any such laws, regulations,
ordinances, or rules applicable to the U.S. Filtration and Minerals Business.
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4.22. Litigation.
Except as set forth in Schedule 4.22 attached hereto, there are no
claims, actions, suits, proceedings or, to the best knowledge of Seller,
investigations pending and no such claim, action, suit, proceeding or
investigation has been pending during the five-year period preceding the date
hereof, by or against Seller with respect to the U.S. Filtration and Minerals
Business, the Assets or the transactions contemplated hereby, at law or in
equity or before or by any Federal, state, municipal or other governmental
department, commission, board, agency, instrumentality or authority, which might
if decided adversely involve liability, individually, or as a class or series in
an aggregate, of more than $100,000 or which might reasonably be expected to
have a material adverse effect on the Assets or the conduct of the U.S.
Filtration and Minerals Business as currently conducted by Seller. To the best
knowledge of Seller, no such claim, action, suit, proceeding or investigation is
threatened.
4.23. Warranties and Product Liability.
4.23(a). Schedule 4.23(a) lists (i) Seller's standard printed
warranty used in connection with the sale of products manufactured or sold by
the U.S. Filtration and Minerals Business; (ii) the customer indemnity form used
by Seller and a list of all customers to whom such form was sent; (iii) the
aggregate value of all holdbacks and retentions as of the date of this Agreement
under sales contracts of Seller in connection with the U.S. Filtration and
Minerals Business; and (iv) the rates of return of products of the U.S.
Filtration and Minerals Business on warranty or contract grounds since January
1, 1990.
4.23(b). Except as set forth in Schedule 4.23(b) hereto, there are
no actions, suits, inquiries, proceedings or, to the best knowledge of Seller,
investigations by or before any court or governmental or other regulatory or
administrative authority, agency or commission pending or, to the best of the
knowledge of Seller, threatened against or involving the U.S. Filtration and
Minerals Business or the Assets relating to any product alleged to have been
manufactured or sold by Seller or the U.S. Filtration and Minerals Business and
alleged to have been defective or improperly designed or manufactured or
stating a claim under any warranty, guarantee or indemnification made by Seller.
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4.24. Environmental Matters.
4.24(a). Schedule 4.24(a) attached hereto sets forth a true and
complete list of Environmental Approvals required to carry on the U.S.
Filtration and Minerals Business as currently conducted, except for such
Environmental Approvals the absence of which would not, individually or in the
aggregate, have a material adverse effect on the Assets or the conduct of the
U.S. Filtration and Minerals Business as currently conducted by Seller.
4.24(b). Except as disclosed in Schedule 4.24(b) or as previously
disclosed by Seller to Buyer in writing:
(i) The operations and properties of the U.S. Filtration and Minerals
Business are in compliance with all applicable Environmental Laws except where
noncompliance would not have a material adverse effect on the business,
condition (financial or otherwise), operations, properties, assets or
liabilities of the U.S. Filtration and Minerals Business;
(ii) Seller has obtained all Environmental Approvals currently necessary
for the operation of the U.S. Filtration and Minerals Business, all such
Environmental Approvals are in effect, no action of which Seller has been
notified or has knowledge to revoke or modify any of such Environmental
Approvals is pending and Seller is in compliance with the terms and conditions
of each such Environmental Approval except where noncompliance would not have a
material adverse effect on the business, condition (financial or otherwise),
operations, properties, assets or liabilities of the U.S. Filtration and
Minerals Business;
(iii) During the past five years, Seller has not received any written
notice pursuant to Environmental Laws of any asserted violation, proceeding,
investigation or lawsuit arising out of the operations or properties of the U.S.
Filtration and Minerals Business now or at any time in the past owned, leased or
operated by Seller;
(iv) Seller has not entered into any written agreement with any
governmental authority or any other person by which Seller has assumed
responsibility for, either directly or as a guarantor or surety, the remediation
of any condition arising from or relating to a Release or threatened Release in
connection with the operations of the U.S. Filtration and Minerals Business;
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(v) Seller has not filed any notice under any applicable Environmental Law
reporting a past or present Release of a Hazardous Substance, and to the
knowledge of Seller, there has not been an unpermitted Release or threatened
Release of a Hazardous Substance, including a Release or threatened Release in
excess of applicable permit limits, into the Environment for which Seller may be
directly or indirectly responsible and which is related to the U.S. Filtration
and Minerals Business;
(vi) Seller has not transported, treated or disposed of, nor arranged for
any third person to transport, treat or dispose of on behalf of Seller related
to the U.S. Filtration and Minerals Business, any Hazardous Substances to or at:
(A) any location other than a site lawfully permitted to receive such
Hazardous Substances, or
(B) any location designated for remedial action of whatever nature
(whether voluntary or involuntary) pursuant to the Comprehensive
Environmental Response Compensation and Liability Act, as amended,
42 U.S.C. Section 9601, et seq., or any analogous state law; and
(vii) To the best of Seller's knowledge, there is not now at, on or in any
of the Real Property:
(A) any generation, treatment, recycling, storage, disposal or other
handling of any Hazardous Wastes (as defined in RCRA,
notwithstanding any inapplicability to Seller or Manville as a
mining operator) which would be subject to RCRA permit requirements;
(B) any landfill or solid waste disposal area which would be subject to
landfill or solid waste permits and Environmental Approvals;
(C) any asbestos-containing material, as defined by TSCA which would be
subject to NESHAP standards;
(D) any Hazardous Substances present at such property, excepting such
quantities as are handled in accordance with all applicable
manufacturer's instructions and governmental regulations and as are
used in the operations of the U.S. Filtration and Minerals Business;
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(E) any polychlorinated biphenyls meeting or in excess of the 50 parts
per million regulatory threshold used in hydraulic oil electrical
transformers or other equipment; or
(F) any underground storage tank, surface impoundment, or other
containment facility.
4.25. Brokers and Finders.
Seller has not employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders' fees in connection
with the transactions contemplated by this Agreement.
V. REPRESENTATIONS AND WARRANTIES OF BUYER AND NEW CELITE
Buyer and New Celite hereby represent and warrant to Seller as
follows:
5.01. Organization, Etc.
5.01(a). Each of Buyer and New Celite is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite power and authority, corporate and otherwise, to
own, operate and lease the properties and assets it now owns, operates and
leases and to carry on its business as presently conducted, to execute and
deliver this Agreement and the other documents and instruments to be executed
and delivered by Buyer or New Celite pursuant hereto and to consummate the
transactions contemplated hereby and thereby.
5.01(b). Each of Buyer and New Celite has heretofore delivered to
Seller complete and correct copies of its Certificate of Incorporation and
Bylaws, in each case as presently in effect, and neither Buyer nor New Celite is
in default in the performance, observation or fulfillment of said Certificate of
Incorporation or Bylaws.
5.02. Authority.
The execution and delivery of this Agreement and the other documents
and instruments to be executed and delivered by each of Buyer and New Celite
pursuant hereto.
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the performance by each of Buyer and New Celite of its obligations hereunder and
thereunder and the consummation by Buyer and New Celite of the transactions
contemplated hereby and thereby have been duly authorized by the Boards of
Directors of Buyer and New Celite. Each of Buyer and New Celite will deliver to
Seller at or prior to the Closing complete and correct copies, certified by its
Secretary, of all resolutions theretofore duly and validly adopted by its Board
of Directors evidencing such authorization (which resolutions will not have been
rescinded prior to and will be in full force and effect on the Closing Date). No
other corporate act or proceeding on the part of Buyer or New Celite is, or, as
of the Closing, will be, necessary to approve the execution and delivery of this
Agreement by each of Buyer and New Celite, the execution and delivery of the
other documents and instruments to be executed and delivered by each of Buyer
and New Celite pursuant hereto, the performance by each of Buyer and New Celite
of its obligations hereunder and thereunder, and the consummation Of the
transactions contemplated hereby and thereby.
5.03. Execution and Binding Effect.
This Agreement has been duly and validly executed and delivered by
each of Buyer and New Celite and constitutes, and the other documents and
instruments to be executed and delivered by Buyer or New Celite pursuant hereto
upon their execution and delivery by Buyer or New Celite on or prior to the
Closing Date will constitute (assuming, in each case, the due and valid
authorization, execution and delivery thereof by the other parties thereto),
legal, valid and binding agreements of Buyer or New Celite, as the case may be,
enforceable against Buyer or New Celite in accordance with their respective
terms except as enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting enforcement of creditors' rights generally.
5.04. Consents and Approvals; No Violation.
Except as set forth in Schedules 5.04, 4.04, 4.21 and 4.24 attached
hereto, no permit, authorization, consent or approval of any governmental or
regulatory authority is required as a condition to the lawful consummation by
Buyer of the purchase of the Assets pursuant to this Agreement or, to the best
knowledge of Buyer, for the operation by Buyer of the U.S. Filtration and
Minerals Business after the Closing substantially in the same manner theretofore
conducted by Seller. Except as set forth in Schedule 5.04 attached
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hereto, neither the execution, delivery and performance of this Agreement or the
other documents and instruments to be executed and delivered pursuant hereto by
Buyer or New Celite, nor the purchase by Buyer of the Assets pursuant to this
Agreement will (assuming compliance with the HSR Act) (i) conflict with, violate
or result in any breach of any provision of the Certificate of Incorporation or
Bylaws or comparable governing documents of Buyer or New Celite, (ii) result in
a violation or breach of, or constitute a default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, license, franchise,
permit, agreement, lease or other instrument or obligation to which Buyer or New
Celite is a party or by which Buyer or New Celite or any of their respective
properties or assets may be bound, (iii) violate any statute, ordinance or law
or any rule, regulation, order, writ, injunction or decree of any court or of
any public, governmental or regulatory authority applicable to Buyer or New
Celite or to which any of their respective properties or assets may be bound, or
(iv) require any filing, declaration or registration with, or permit, consent or
approval of, or the giving of any notice to, any public, governmental or
regulatory authority.
5.05. Funds.
Buyer and New Celite acknowledge that pursuant to the Alleghany
Agreement, Alleghany has agreed, among other things, to cause New Celite and
Buyer to have sufficient funds to make payments due hereunder at the Closing.
5.06. Brokers and Finders.
Neither Buyer nor New Celite have employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finders' fees in
connection with the transactions contemplated by this Agreement.
VI. OTHER OBLIGATIONS OF THE PARTIES
6.01. Conduct of Business of the U.S. Filtration and Minerals Business Pending
the Closing.
From the date hereof until the Closing, except as otherwise required
or permitted under this Agreement or to the extent otherwise consented to by
Buyer in writing, Seller
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will carry on the business of the U.S. Filtration and Minerals Business in, and
only in, the usual, regular and ordinary course and consistent with past
practice. Except as otherwise required or permitted under this Agreement,
without the prior written consent of Buyer, neither Seller nor any of Seller's
affiliates (to the extent that the following actions by Seller or its affiliates
may affect the U.S. Filtration and Minerals Business) shall (i) make any
material changes in sales prices, practices or terms in respect of products of
the U.S. Filtration and Minerals Business; (ii) grant any bonuses or alter or
increase the present compensation of any employee of the U.S. Filtration and
Minerals Business, directly or indirectly, except in accordance with its
customary and existing compensation policies; (iii) enter into any agreements,
or make any undertaking or commitment, (x) to sell, lease or exchange any
substantial portion of the Assets to any other corporation or person, or (y) to
make any capital commitment in respect of the U.S. Filtration and Minerals
Business which together with all related commitments require payments in excess
of $150,000; (iv) agree to incur any obligation or liability (absolute or
contingent) in respect of the U.S. Filtration and Minerals Business which
obligation or liability would become an Assumed Liability except in the ordinary
course of business consistent with past practice; (v) mortgage, encumber by deed
of trust, pledge or incur any lien, charge or other encumbrance with respect to
any of the Assets, or agree to do so, except in the ordinary course of business
consistent with past practice; (vi) cancel or agree to cancel any claims
included within the Assets, except in the ordinary course of business consistent
with past practice; (vii) introduce any new method of accounting in respect of
the U.S. Filtration and Minerals Business, other than non-discretionary changes
and changes required by its independent auditors; (viii) except as required by
law and as contemplated herein, take any action to amend in any material respect
any of Seller's Pension Plans, Welfare Plans, employment agreements or
Collective Bargaining Agreements which are to be transferred to or assumed by
Buyer; or (ix) terminate an employee at an annual salary in excess of $75,000,
or hire a new employee at an annual salary in excess of $75,000, without prior
consultation with Buyer.
6.02. Access to Information and Records.
Between the date of this Agreement and the Closing Date, Seller will
provide Buyer and Buyer's accountants, counsel and other authorized
representatives reasonable
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access, during normal business hours, to any and all premises, properties,
contracts, commitments, books, records and other information (including tax
returns filed and those in preparation) of Seller relating to the U.S.
Filtration and Minerals Business to the extent severable and will cause its
officers to furnish to Buyer and Buyer's authorized representatives any and all
financial, technical and operating data and other information pertaining to the
U.S. Filtration and Minerals Business and the Assets as Buyer shall from time to
time reasonably request.
6.03. Public Announcements.
Seller and Buyer agree to consult promptly with each other prior to
issuing any press releases or otherwise making public statements with respect to
the transactions contemplated hereby, and shall not issue any such press release
or make any such public statement prior to such consultation, except as may be
required by law or by obligations pursuant to any listing agreement with any
national securities exchange. With respect to oral public statements, such
obligation to consult shall be satisfied by general consultation regarding the
subject matter of the proposed public statements.
6.04. Furnishing Information.
Each of the parties hereto will, as soon as practicable after
reasonable request therefor, furnish all the information concerning it required
for inclusion in any statement or application made by any of them to any
governmental or regulatory authority in connection with the transactions
contemplated by this Agreement. In the event any action, suit, proceeding or
investigation of the nature specified in Section 7.05 or Section 8.05 hereof is
commenced, whether before or after the Closing Date, the parties hereto agree to
cooperate and use their best efforts to defend against and respond thereto.
6.05. Certain Notifications.
At all times prior to the Closing, each party hereto shall as
promptly as reasonably practicable notify the other in writing of the occurrence
of any event of which it obtains knowledge which will result, or in the opinion
of such party has a reasonable prospect of resulting, in the failure to satisfy
the conditions specified in Article VII
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hereof in the case of events relating to Seller and Article VIII hereof in the
case of events relating to Buyer.
6.06. Best Efforts.
Upon the terms and subject to the conditions hereof, each of the
parties hereto agrees to use its best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement and shall use its best efforts to promptly obtain all waivers,
permits, consents and approvals and to effect all registrations, filings and
notices with or to third parties or governmental or public authorities which are
in the reasonable opinion of Seller or Buyer necessary or desirable in
connection with the transactions contemplated by this Agreement, including,
without limitation, filings to the extent required under the Exchange Act and
the HSR Act; provided, however, that neither Buyer nor New Celite shall be
obligated to execute any guarantees or undertakings or otherwise incur or assume
any liability (other than those liabilities and obligations otherwise to be
assumed by Buyer under this Agreement) in connection with obtaining any such
approval, consent, authorization or waiver except to the extent that Manville
has issued such guarantee and set forth on Schedule 6.06. Seller agrees that it
will, at any time and from time to time after the Closing Date, upon request of
Buyer, do, execute, acknowledge and deliver or will cause to be done, executed,
acknowledged and delivered, all such further acts, deeds, assignments,
transfers, conveyances, powers of attorney and assurances as may in Buyer's
reasonable opinion be necessary or advisable to confirm Buyer's title to and
interest in or to enable it to deal with and dispose of the Assets to be
conveyed, transferred and delivered by Seller to Buyer under this Agreement.
6.07. Proration of Taxes and Certain Charges.
6.07(a). All real property Taxes, personal property Taxes or similar
ad valorem obligations levied with respect to the Assets for any taxable period
which includes the day after the Closing Date and ends after the Closing Date,
whether imposed or assessed before or after the Closing Date, shall be prorated
between Seller and Buyer on a daily basis based upon the number of days in the
taxable period preceding and following the Closing Date. If any Taxes subject to
proration are paid by one party, the proportionate
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amount of such Taxes paid (or in the event a refund of any portion of such Taxes
previously paid is received, such refund) shall be paid promptly by (or to) the
other party after the payment of such Taxes (or promptly following the receipt
of any such refund).
6.07(b). All installments of special assessments or other charges on
or with respect to the Assets (including the Real Property) payable by Seller
for any period in which the Closing Date shall occur, including, without
limitation, base rent, common area maintenance, percentage or other additional
rent, royalties, all municipal, utility or authority charges for water, sewer,
electric or gas charges, garbage or waste removal, and cost of fuel, shall be
apportioned as of the Closing Date based upon meter readings taken on such date
or, if such charges or rates are assessed either based upon time or for a
specified period, such charges or rates shall be allocated on a daily basis to
the periods before and after the Closing Date, and each party shall pay its
proportionate share promptly upon the receipt of any xxxx, statement or other
charge with respect thereto.
6.07(c). All installments of base rent, additional rent, license
fees or other use related revenue receivable by Seller or Manville to the extent
attributable to the U.S. Filtration and Minerals Business for any period in
which the Closing Date shall occur shall be prorated so that Seller shall be
entitled to that portion of any such installment applicable to the period up to
but not including the Closing Date and Buyer shall be entitled to that portion
of any such installment applicable to any period from and after the Closing
Date.
6.07(d). The proration of Taxes, special assessments and other
charges provided for in this Section 6.07 shall be made only in respect of
Taxes, special assessments and other charges for which accruals are not provided
in the Closing Date Financial Statements.
6.08. Non-Competition.
6.08(a). For a period between the Closing Date and December 31,
1998, Seller shall not, and shall cause each of its respective subsidiaries not
to, directly or indirectly, anywhere in the world, own, manage, operate or
control, any business that is engaged in the Business, provided that nothing
herein shall limit the ability of Seller and its subsidiaries to (i) mine
perlite ore for internal use other
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than the uses set forth in the Perlite Agreement, (ii) subject to Section
6.08(a)(i), mine for internal use industrial minerals included in the Business,
other than diatomite, (iii) process for internal use perlite ore, or (iv)
purchase an entity that is engaged in part in the Business so long as (x) such
entity is primarily engaged in activities other than the Business, (y) Seller
promptly disposes of any portion of such entity that is engaged in the Business,
and (z) Seller takes appropriate safeguards to further the intent of this
Section, including implementing procedures to ensure that no disclosure of any
information relating primarily to the Filtration and Minerals Business is made
or otherwise becomes available to such newly acquired entity.
For purposes of this Section 6.08(a), "Business" means (i) the
mining, manufacture or sale (including distribution) of industrial minerals, or
products manufactured therefrom, similar to those presently being mined,
manufactured or sold by, or currently the subject of an ongoing research project
(all of which products and ongoing research projects to the best knowledge of
Seller have been disclosed in Schedule 6.08) by the Filtration and Minerals
Business for sale or distribution in markets addressed by the Filtration and
Minerals Business during the five-year period prior to the Closing Date or (ii)
the manufacture or sale of products utilizing crossflow filtration technology.
For purposes of this Section 6.08, "internal use" means the use by Manville or
its subsidiaries of a mineral or mineral product as an ingredient or otherwise
in the process of manufacturing a finished product which is not included in the
Business.
6.08(b). Since Buyer will be irreparably damaged and its remedy at
law will be inadequate in the event of a breach of Section 6.08(a), Buyer shall
be entitled to an injunction restraining any violation of such Section or any
other appropriate decree of specific performance, without showing any actual
damage or that monetary damages would not provide an adequate remedy. Such
remedies shall not be exclusive and shall be in addition to any other remedy
which Buyer may have, including, without limitation, the right to monetary
damages for the period preceding such specific enforcement. If any provision of
this Section 6.08 is held to be unenforceable because of the scope, duration or
area of its applicability, the court making such determination shall have the
power to modify such scope, duration or area or all of them, and such provision
shall then be applicable in such modified form.
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6.09. WARN.
For a period of at least 90 days following the Closing Date, Buyer
agrees to continue to employ at least 75% of the Transferring Employees who were
employed at each "single site of employment" (as such term is defined in 20 CFR
Section 639.3(i)) that is part of the U.S. Filtration and Minerals Business.
6.10. Refil, S.A. Commission Payments.
Buyer will use its best efforts to assist Seller and its Affiliates
in the collection of the Refil Debt, provided that Seller has provided Buyer
with appropriate documentation indicating the consent of Refil to such
arrangement. Until the Refil Debt has been paid in full, Buyer agrees to pay or
cause its Affiliates to pay to Seller, the commissions owed by Buyer and/or its
Affiliates to Refil and Xxxxxxx X. Xxxxxx. Payment is to be made by wire
transfer denominated in U.S. dollars to Seller's account no. 0000000, Mellon
Bank, Pittsburgh, PA, ABA no. 04000261, or to such other account as Seller may
from time to time specify. Buyer and its Affiliates will afford Seller or its
authorized representatives access, during normal working hours, to inspect and
audit its records, books and reports reasonably related to the Refil Debt and
agree to retain said records until notified by Seller that the Refil Debt has
been paid in full.
6.11. Reclamation.
Within 15 days following Seller's receipt from time to time of
Buyer's requests for reimbursements, Seller shall reimburse Buyer for 50% of the
first $2,000,000 in direct costs which are incurred by Buyer in endeavoring to
obtain all governmental agency or judicial approvals which are reasonably
required to be obtained for a reclamation plan (as amended or revised from time
to time) at the U.S. Filtration and Minerals Business' Lompoc, California
facility, under the California Surface Mining and Reclamation Act, or which are
required by Buyer in reclamation at such facility pursuant to the requirements
of such reclamation plan (as amended or revised from time to time). Such direct
costs shall include, without limitation, all those costs reasonably attributable
to endeavoring to obtain such governmental agency or judicial approvals (e.g.,
reasonable attorneys' and consultants' fees, and costs of conducting an
environmental impact report), and all those costs reasonably attributable to
reclamation and
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which go beyond those practices currently followed in the ordinary course at the
Lompoc facility. Seller's foregoing obligations pursuant to this Section 6.11
apply solely to costs which are incurred and claimed by Buyer no later than the
date five years after the Closing Date. Buyer shall notify Seller from time to
time, not less frequently than every 2 months, of direct costs for which Buyer
seeks reimbursement and such notification shall include supporting documentation
which reasonably describes the nature of the cost incurred and the basis on
which Buyer is entitled to 50% reimbursement therefor pursuant to this Section
6.11. Buyer shall not be entitled to reimbursement for general overhead or other
similar indirect costs. During normal business hours and upon reasonable advance
notice, Seller shall have the right to inspect and audit Buyer's books, premises
and records relating to such costs. Seller and Buyer understand that, at least
initially, it will probably be cost effective and strategically prudent for
Buyer to use as its counsel, in pursuing governmental approval of a reclamation
plan, such California counsel as have represented or advised Seller in that
matter. As part of the transfer of Assets pursuant to this Agreement effective
upon the Closing Date, Seller agrees to consent to Buyer's use of such counsel
and all other environmental outside counsel and consultants as have represented
Seller in connection with the U.S. Filtration and Minerals Business.
6.12. Pumicite Deposit.
(a) At any time prior to the tenth anniversary of the Closing Date,
Seller shall have the option to purchase from Buyer or its affiliates the
pumicite deposit located in Mankato, Kansas (the "Pumicite Deposit") for a cash
purchase price of $100,000 in the event that (i) Buyer shall fail to develop the
Pumicite Deposit within a reasonable time after being requested by Seller to do
so, or (ii) Buyer shall give notice to Seller, as provided below, of its intent
to transfer the Pumicite Deposit to an unaffiliated third party. Buyer agrees
that (i) any transfer of the Pumicite Deposit will be made subject to the
foregoing option and (ii) Buyer will give Seller 30 days notice prior to
transferring the Pumicite Deposit to an unaffiliated third party.
(b) Buyer agrees that if any time Buyer chooses to develop the
Pumicite Deposit and market pumicite products, it will supply Seller or its
affiliates with such products as Seller or such affiliates may reasonably
request on commercially reasonable terms.
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VII. CONDITIONS TO BUYER'S OBLIGATIONS
The obligations of Buyer are subject to the fulfillment, prior to or
on the Closing Date, of each of the following conditions, all or any of which
may be waived in whole or in part by Buyer as provided herein.
7.01. Representations and Warranties True.
The representations and warranties made by Seller in this Agreement,
and the statements contained in the Schedules annexed hereto or in any
instrument, list, certificate or writing delivered by Seller pursuant to this
Agreement, shall be true and correct in all material respects on and as of the
Closing Date with the same effect as though such representations and warranties
had been made or given on and as of the Closing Date, except for any
representation or warranty made or given as of a specified date, which shall
have been true and correct in all material respects as of such date; provided
however, that for purposes of this Section 7.01, and without limiting any other
rights of Buyer hereunder, the representations and warranties made in Section
4.10 shall be true and correct in all material respects as to the Real Property
located in Lompoc, California only on and as of the Closing Date with the same
effect as though such representations and warranties had been made or given on
and as of the Closing Date.
7.02. Performance of Seller.
Seller shall have performed and complied in all material respects
with all agreements, obligations and conditions required by this Agreement to be
so performed or complied with by it prior to or at the Closing.
7.03. Opinion of Counsel to Seller.
Buyer shall have received an opinion of Xxxxx Xxxx & Xxxxxxxx and an
opinion of Xxxxxxx X. Xxxxx, in-house counsel to Seller, dated the Closing Date,
in form and substance reasonably satisfactory to Buyer and its counsel.
7.04. Authorization of Sale of Assets; Consents.
All notices by seller to, and declarations, filings and
registrations by seller with, and consents, approvals and waivers from,
governmental and regulatory authorities, and
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all consents, approvals and waivers from third parties, required by applicable
law to consummate the transactions contemplated hereby or required under this
Agreement to have been obtained prior to Closing or necessary to permit the
continued operation of the U.S. Filtration and Minerals Business after the
Closing in all material respects as heretofore conducted, shall have been made
or obtained and any required waiting period shall have elapsed.
7.05. No Proceeding or Litigation.
On the Closing Date (i) there shall be no injunction, restraining
order or order of any nature issued by any court of competent jurisdiction which
directs that this Agreement or any material transaction contemplated hereby
shall not be consummated as herein provided, or compels or may compel Buyer to
dispose of or discontinue or hold separate any part of the business conducted by
Buyer or any material part of the U.S. Filtration and Minerals Business as a
result of or as a condition to the consummation of the transactions contemplated
hereby, or restricts Buyer's operation of any material part of the U.S.
Filtration and Minerals Business; (ii) there shall be no suit, action or other
proceeding by the United States (or any agency thereof) or by any state (or any
agency thereof) pending before any court or governmental agency, or threatened
to be filed or initiated (but only if such threat is evidenced by an express
oral or written notice received by Seller and Buyer of an intent to so file or
initiate a suit, action or proceeding from, an officer of a governmental
authority or agency who is reasonably believed by Buyer and Seller to be duly
empowered and authorized to make such threat and cause such filing or
initiation), wherein such complainant seeks the restraint or prohibition of the
consummation of any material transaction contemplated by this Agreement or
asserts the illegality of any material transaction contemplated hereby; and
(iii) there shall be no bankruptcy or other proceeding pending in which Seller
or Manville is the debtor or any other proceeding by any state governmental
authority seeking the appointment of a liquidator, conservator, receiver or
similar person for Seller or Manville.
7.06. Simultaneous Closing of the Other Agreements.
The Other Agreements of even date herewith shall have been executed
and shall have closed in accordance with their terms at the Closing hereunder.
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7.07. Documents.
The Bills of Sale, deeds, instruments of assignment, other
instruments of conveyance and transfer and all other documents to be delivered
by Seller to Buyer at the Closing shall be in form and substance reasonably
satisfactory to Buyer (except for agreements and documents attached hereto,
which shall be in the form attached).
7.08. Surveys.
At or prior to the Closing, Buyer and the Title Insurer shall have
received surveys of all parcels of the Real Property located at Lompoc,
California, except for mineral rights without accompanying surface rights (the
"Surveys"), which Surveys shall be prepared, at Seller's sole cost and expense,
in accordance with minimum standards detail requirements for ALTA/ACSM Land
Title Surveys for Class C or Class D surveys, as appropriate, as adopted by the
American Land Title Association on September 27, 1986. Each such Survey shall be
certified in favor of Buyer and the Title Insurer.
7.09. Title Insurance Commitments.
At or prior to the Closing, Buyer shall have received the firm
commitment of the Title Insurer to issue ALTA Owner's Policies of title
insurance for each parcel of the Real Property and any of the Leasehold
Interests which are recorded in amounts equal to the approximate fair market
value of such Real Property and Leasehold Interests as reasonably determined by
Buyer subject only to the Title Insurer's printed form, exclusions, liens for
Taxes not yet due and payable and such other exclusions from coverage as do not
materially adversely affect the use or value of such Real Property or Leasehold
Interest as currently used or reserved for use, together with survey
endorsements with respect to the Lompoc, California Real Property, mechanics'
lien endorsements in each case acceptable to Buyer and such other endorsements
in each case as Buyer shall have reasonably requested.
7.10. Officers' Certificate.
Seller shall have delivered to Buyer a certificate, dated the
Closing Date and executed by its President and its Principal financial officer,
certifying to the fulfillment of all conditions set forth in Sections 7.01 and
7.02 hereof. such certificate shall constitute representations of Seller as to
the facts certified therein.
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VIII. CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller under this Agreement are subject to the
fulfillment, prior to or on the Closing Date, of each of the following
conditions, all or any of which may be waived in whole or in part by Seller as
provided herein.
8.01. Representations and Warranties True.
The representations and warranties made by each of Buyer and New
Celite in this Agreement, and the statements contained in any instrument, list,
certificate or writing delivered by Buyer or New Celite pursuant to this
Agreement, shall be true and correct in all material respects on and as of the
Closing Date with the same effect as though such representations and warranties
had been made or given on and as of the Closing Date, except for any
representation or warranty made or given as of a specified date, which shall
have been true and correct in all material respects as of such date.
8.02. Performance of Buyer and New Celite.
Buyer and New Celite shall each have performed and complied in all
material respects with all agreements, obligations and conditions required by
this Agreement to be so performed or complied with by it prior to or at the
Closing.
8.03. Opinion of Counsel to Buyer.
Seller shall have received an opinion of Xxxxxxx Leisure Xxxxxx &
Irvine, counsel to Buyer, dated the Closing Date, in form and substance
reasonably satisfactory to Seller.
8.04. Authorization of Sale of Assets; Consents.
All notices by Buyer to, and declarations, filings and registrations
by Buyer with, and consents, approvals and waivers from, governmental and
regulatory authorities, required to consummate the transactions contemplated
hereby or required under this Agreement to have been obtained prior to Closing
or necessary to permit the continued operation the U.S. Filtration and Minerals
Business after the Closing in all material respects as heretofore conducted,
other than routine post-Closing notifications or filings, shall have
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been made or obtained and any required waiting period shall have elapsed.
8.05. No Proceeding or Litigation.
On the Closing Date (i) there shall be no injunction, restraining
order or order of any nature issued by any court of competent jurisdiction which
directs that this Agreement or any material transaction contemplated hereby
shall not be consummated as herein provided, or compels or may compel Buyer to
dispose of or discontinue or hold separate any part of the business conducted by
Buyer or any material part of the U.S. Filtration and Minerals Business as a
result of or as a condition to the consummation of the transactions contemplated
hereby, or restricts Buyer's operation of any material part of the U.S.
Filtration and Minerals Business; (ii) there shall be no suit, action or other
proceeding by the United States (or any agency thereof) or by any state (or any
agency thereof) pending before any court or governmental agency, or threatened
to be filed or initiated (but only if such threat is evidenced by an express
oral or written notice received by Seller and Buyer of an intent to so file or
initiate a suit, action or proceeding from an officer of a governmental
authority or agency who is reasonably believed by Buyer and Seller to be duly
empowered and authorized to make such threat and cause such filing or
initiation), wherein such complainant seeks the restraint or prohibition of the
consummation of any material transaction contemplated by this Agreement or
asserts the illegality of any material transaction contemplated hereby; and
(iii) there shall be no bankruptcy or other proceeding pending in which Buyer or
New Celite is the debtor or any other proceeding by any state governmental
authority seeking the appointment of a liquidator, conservator, receiver or
similar person for Buyer or New Celite.
8.06. Officers' Certificate.
Each of Buyer and New Celite shall have delivered to Seller a
certificate, dated the Closing Date and executed by its President and its
principal financial officer, certifying to the fulfillment of all conditions
specified in Sections 8.01 and 8.02 hereof. Such certificate shall constitute
representations, of Buyer and New Celite as to the facts certified therein.
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8.07. Simultaneous Closing of the Other Agreements.
The Other Agreements, of even date herewith, shall have been
executed and shall have closed in accordance with their terms at the Closing
hereunder.
8.08. Documents.
All documents to be delivered by Buyer and New Celite to Seller at
the Closing shall be in form and substance reasonably satisfactory to Seller
(except for agreements attached hereto, which shall be in the form attached).
IX. SURVIVAL OF WARRANTIES, INDEMNIFICATION
9.01. Survival of Warranties.
All representations and warranties made herein or in any Schedules,
certificates or other documents delivered prior to or at the Closing or pursuant
hereto shall survive the Closing hereunder for a period of two years, regardless
of any investigation heretofore or hereafter made by or on behalf of any of the
parties hereto.
9.02. Agreements to Indemnify.
9.02(a). Indemnification by Seller. Subject to the conditions and
provisions set forth herein (including, without limitation, Section 9.01),
Seller agrees to indemnify, defend and hold harmless, Buyer and its affiliates
(collectively, "Buyer Indemnitees"), from and against all demands, claims,
actions, assessments, losses, damages, liabilities, reasonable costs and
expenses, including, without limitation, interest, penalties and attorneys' fees
and expenses, judgments and, subject to Section 9.03, amounts paid in settlement
of or in connection with any threatened, pending or contemplated claim, action,
suit or proceeding, whether criminal, civil, administrative or investigative, or
investigation, (the "Claims"), asserted against, resulting to, imposed upon or
incurred by Buyer Indemnitees, directly or indirectly, arising from (i) any
misrepresentations or breach of warranty on the part of Seller under this
Agreement or any other agreement, certificate or instrument delivered by Seller
pursuant to this Agreement; (ii) any material breach of any agreement of Seller
or Manville contained in or
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made pursuant to this Agreement (except an agreement which, pursuant to the
express terms of this Agreement, is not to survive and is to expire or be
terminated upon the Closing or the termination of this Agreement); (iii) the
operations of Seller or the operations of the U.S. Filtration and Minerals
Business or the Assets, or any operations or facilities now comprising or
heretofore associated with the U.S. Filtration and Minerals Business, prior to
the Closing Date including, without limitation, anything arising out of the
Excluded Liabilities (but excluding any liability arising out Of the Assumed
Liabilities and any obligations of Buyer pursuant to the express terms of this
Agreement) and (iv) any Tax of Seller or its affiliates imposed upon, assessed
against or collected from or asserted against any Buyer Indemnitee (other than a
tax of Seller or its affiliates which Buyer has agreed herein to pay). Any
payments required to be made by Seller pursuant to this Article IX shall be paid
to New Celite.
9.02(b). Limitations on Indemnification by Seller. Notwithstanding
anything to the contrary in Section 9.02(a):
(i) To the extent that a Claim is incurred by a Buyer Indemnitee under
Section 9.02(a)(i) (or to the extent a Claim could be made under Section 9.02
(a)(i) and Section 9.02(a)(iii)), Seller shall be required to indemnify and hold
harmless with respect to such Claim only if the aggregate amount of all such
Claims exceeds an amount equal to $650,000 less the amount of all Claims
incurred by Buyer Indemnitees as provided in the European Stock Purchase
Agreement and the Joint Venture Stock Purchase Agreement, and then only with
respect to Claims incurred in excess of such amount. In addition, Seller shall
not be required to indemnify and hold harmless under Section 9.02(a) with
respect to Claims incurred by any Buyer Indemnitee to the extent the aggregate
amount required to be paid by Seller pursuant to Section 9.02(a) exceeds an
amount equal to the Cash Purchase Price.
(ii) Any claim for indemnification under Section 9.02(a)(i) shall be made
in the manner provided in Section 9.03(a) within two years from the Closing Date
(and no claim under Section 9.02(a)(i) shall be first made by any Buyer
Indemnitee under Section 9.02(a)(i) thereafter).
(iii) To the extent that a Claim incurred by a Buyer Indemnitee could be
made under Sections 9.02(a)(i) or 9.02(a)(iii), any claim for indemnification
under Section 9.02(a)(iii) shall be made in the manner provided in Section
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9.03(a) within 2 years from the Closing Date (and no such claim under Section
9.02(a)(iii) shall be first made by any Buyer Indemnitee thereafter) unless such
claim for indemnification arises from a threatened, pending or contemplated
action, suit, proceeding or investigation initiated by a third party against
such Buyer Indemnitee.
(iv) Any claim for indemnification under Sections 9.02(a)(ii) or (subject
to Section 9.02(b)(iii)) 9.02(a)(iii) shall be made in the manner provided in
Section 9.03(a) within ten years from the Closing Date (and no such claim under
Section 9.02(a)(ii) or 9.02 (a)(iii) shall be first made by any Buyer Indemnitee
thereafter) unless such claim for indemnification arises from the alleged
defective design or hazardous or toxic nature of products or materials mined,
manufactured, warehoused, handled, distributed or sold by the U.S. Filtration
and Minerals Business prior to the Closing Date.
(v) Any claim for indemnification under Section 9.02(a)(ii) or 9.02(a)
(iii) arising from the alleged defective design or hazardous or toxic nature of
products or materials mined, manufactured, warehoused, handled, distributed or
sold by the U.S. Filtration and Minerals Business prior to the Closing Date
shall be made in the manner provided in Section 9.03(a) within fifteen years
from the Closing Date (and no such claim under Section 9.02(a)(ii) or 9.02(a)
(iii) shall be first made by any Buyer Indemnitee thereafter).
(vi) Any claim for indemnification under Section 9.02(a)(iv) shall be made
in the manner provided in Section 9.03(a) prior to the expiration of the
statute of limitations (as properly extended) applicable to either the Tax or
the imposition upon, assertion against or collection from any Buyer Indemnitee
of the Tax for which indemnification is sought under Section 9.02(a)(iv) (and no
such claim under Section 9.02(a)(iv) shall be first made by any Buyer Indemnitee
thereafter).
9.02(c). Indemnification by Buyer. Subject to the conditions and
provisions set forth herein (including, without limitation, Section 9.01), Buyer
agrees to indemnify, defend and hold harmless Seller and its affiliates
(collectively "Seller Indemnitees") from and against all Claims asserted
against, resulting to, imposed upon or incurred by seller indemnitees, directly
or indirectly, arising from any (i) Misrepresentations or breach of warranty on
the part of Buyer or New Celite under this Agreement or
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any other agreement, certificate or instrument delivered by Buyer and New Celite
pursuant to this Agreement; (ii) any material breach of any agreement of Buyer
or New Celite contained in or made pursuant to this Agreement (except an
agreement which, pursuant to the express terms of this Agreement, is not to
survive and is to expire or be terminated upon the Closing or the termination of
this Agreement); (iii) the operations of Buyer or the operations of the U.S.
Filtration and Minerals Business or the Assets, or any operations or facilities
comprising or associated with the U.S. Filtration and Minerals Business, after
the Closing Date including, without limitation, anything arising out of the
Assumed Liabilities (but excluding any liability arising out of the Excluded
Liabilities and any obligations of Seller pursuant to the express terms of this
Agreement); and (iv) any Tax of Buyer or its affiliates imposed upon, assessed
against or collected from or asserted against any Seller Indemnitee (other than
a Tax of Buyer or its affiliates which Seller has agreed herein to pay).
9.02(d). Limitations on Indemnification by Buyer. Notwithstanding
anything to the contrary in Section 9.02(c):
(i) To the extent that a Claim is incurred by a Buyer Indemnitee under
Section 9.02(c)(i), Buyer shall be required to indemnify and hold harmless with
respect to such Claim only if the aggregate amount of all such Claims exceeds an
amount equal to $650,000 less the amount of all Claims incurred by Seller
Indemnitees as provided in the European Stock Purchase Agreement and the Joint
Venture Stock Purchase Agreement, and then only with respect to Claims incurred
in excess of such amount. In addition, Buyer shall not be required to indemnify
and hold harmless under Section 9.02(c) with respect to Claims incurred by any
Seller Indemnitee to the extent the aggregate amount required to be paid by
Buyer pursuant to Section 9.02(c) exceeds an amount equal to the Cash Purchase
Price.
(ii) Any claim for indemnification under Section 9.02(c)(i) shall be made
in the manner provided in Section 9.03(a) within two years from the Closing Date
(and no claims under Section 9.02(c)(i) Shall be first made by any Seller
Indemnitee under Section 9.02(c)(i) thereafter).
(iii) To the extent that a Claim incurred by a Seller Indemnitee could be
made under Sections 9.02(c)(i) and 9.02(c)(iii), any claims for indemnification
under Section 9.02(c)(iii) shall be made in the manner provided in Section
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9.03(a) within two years from the Closing Date (and no such claim shall be first
made by any Seller Indemnitee thereafter) unless such claim for indemnification
arises from a threatened, pending or contemplated action, suit, proceeding or
investigation initiated by a third party against such Seller Indemnitee.
(iv) Any claim for indemnification under Section 9.02(c)(ii) or (subject
to Section 9.02(d)(iii)) 9.02(c)(iii) shall be made in the manner provided in
Section 9.03(a) within ten years from the Closing Date (and no such claim under
Section 9.02(c)(ii) or 9.02(c)(iii) shall be first made by any Seller Indemnitee
thereafter) unless such claim for indemnification arises from the alleged
defective design or hazardous or toxic nature of products or materials mined,
manufactured, warehoused, handled, distributed or sold by the U.S. Filtration
and Minerals Business following the Closing Date.
(v) Any claim for indemnification under Section 9.02(c)(ii) or
9.02(c)(iii) arising from the alleged defective design or hazardous or toxic
nature of products or materials mined, manufactured, warehoused, handled,
distributed or sold by the U.S. Filtration and Minerals Business following the
Closing Date shall be made in the manner provided in Section 9.03(a) within
fifteen years from the Closing Date (and no such claim under Section 9.02(c)
(ii) or 9.02(c)(iii) shall be first made by any Seller Indemnitee thereafter).
(vi) Any claim for indemnification under Section 9.02(c)(iv) shall be made
in the manner provided in Section 9.03(a) within ten years from the Closing Date
(and no such claim under Section 9.02(c)(iv) shall be first made by any Seller
Indemnitee thereafter).
9.02(e). Proration of Claims. In the event a Claim arises in part
from the operations of the U.S. Filtration and Minerals Business or the Assets,
or any operations or facilities now comprising or heretofore associated with the
U.S. Filtration and Minerals Business, prior to the Closing Date, and in part
from the operations of the U.S. Filtration and Minerals Business or the Assets,
or any operations or facilities comprising or associated with the U.S.
Filtration and Minerals Business, after the closing Date, the parties shall
prorate such Claim on a fair and equitable basis.
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9.03. Procedures Regarding Indemnification.
9.03(a). If Buyer or Seller has actual knowledge that any Indemnitee
has suffered or incurred any Claim, Buyer or Seller shall so notify the other
promptly in writing describing such Claim, the amount thereof, if known, and the
method of computation of such Claim, all with reasonable particularity and
containing a reference to the provisions of this Agreement or other agreement,
instrument or certificate delivered pursuant hereto in respect of which such
Claim shall have occurred. If any action at law or suit in equity is instituted
by or against a third party with respect to which any Indemnitee intends to
claim any liability or expense as a Claim hereunder, any such Indemnitee shall
promptly notify the indemnifying party of such action or suit. An Indemnitee
providing notice of the commencement of any action or proceeding will permit the
party responsible for indemnification thereof (the "Indemnitor") to assume the
defense of such action. Failure by Indemnitor to notify Indemnitee of its
election to defend any such action within a reasonable time, but in no event
more than 30 days after written notice thereof shall have been given to
Indemnitor, shall be deemed a waiver by Indemnitor of its right to defend such
action.
9.03(b). If Indemnitor assumes the defense of any such Claim or
litigation resulting therefrom, the obligations of Indemnitor as to such Claim
shall be limited to taking all steps necessary in the defense or settlement of
such Claim or litigation resulting therefrom and to holding Indemnitee harmless
from and against any and all losses, damages and liabilities caused by or
arising out of any settlement approved by Indemnitor or any judgment in
connection with such Claim or litigation resulting therefrom. Indemnitee may
participate, at its expense, in the defense of such Claim or litigation provided
that Indemnitor shall direct and control the defense of such Claim or
litigation. Indemnitor shall not, in the defense of such Claim or any litigation
resulting therefrom, consent to entry of any judgment or enter into any
settlement other than a judgment or settlement, involving only the payment of
money, except with the written consent of Indemnitee, which consent shall not be
unreasonably withheld.
9.03(c). If Indemnitor shall not assume the defense of any such
Claim or litigation resulting therefrom, Indemnitee may defend against such
claim or litigation in such manner as it may deem appropriate, provided that
Indemnitee shall not settle such Claim or litigation without
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providing notice and a description of the proposed settlement to Indemnitor. If
Indemnitee shall not receive from Indemnitor within ten days of the date of
notice of such proposed settlement a notice that Indemnitor reasonably objects
to such proposed settlement accompanied by an acknowledgment by Indemnitor that
the Claim or litigation which is subject of the proposed settlement is subject
to indemnification pursuant to the provisions of this Article IX, Indemnitee
shall be free to settle such Claim or litigation. In the case of any such
settlement, Indemnitor shall promptly reimburse Indemnitee for the amount of all
reasonable expenses, legal or otherwise, incurred by Indemnitee in connection
with the defense against or settlement of such Claim or litigation. If no
settlement of such Claim or litigation is made, Indemnitor shall promptly
reimburse Indemnitee for the amount of any final judgment rendered with respect
to such Claim or in such litigation and of all expenses, legal or otherwise,
incurred by Indemnitee in the defense against such Claim or litigation, provided
that Indemnitee has contested any such Claim or litigation in good faith.
9.03(d). For purposes hereof, a judgment or decree of a court shall
be deemed final when such judgment or decree may be enforced against the party
bound thereby.
9.03(e). Buyer and Seller agree that, to the extent permitted by
applicable Tax laws, any indemnity payments paid under this Agreement shall be
treated as an adjustment to the Cash Purchase Price.
X. TERMINATION, AMENDMENT AND WAIVER
10.01. Termination of Agreement.
This Agreement may be terminated and the sale of the Assets
contemplated hereby abandoned at any time prior to the Closing:
10.01(a). By mutual written consent of the Boards of Directors of
Buyer and Seller;
10.01(b). By either Buyer or Seller, if the Closing shall not have
occurred on or before September 30, 1991; and
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10.01(c). By either Buyer or Seller if any court of competent
jurisdiction in the United States or any governmental authority in the United
States shall have issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the transactions contemplated by
this Agreement and such order, decree, ruling or other action shall have become
final and nonappealable.
10.02. Procedure and Effect of Termination.
In the event of termination of this Agreement and abandonment of the
transactions contemplated hereby by Buyer or Seller pursuant to Section 10.01
hereof, written notice thereof shall forthwith be given to each other party
specifying the provision hereof pursuant to which such termination is made and
this Agreement shall terminate and the transactions contemplated hereby shall be
abandoned, without further action by any of the parties hereto. In the event of
such termination of this Agreement, this Agreement shall forthwith become void
and there shall be no liability on the part of the parties hereto (or their
respective officers, directors of affiliates); provided, however, nothing herein
shall relieve any party from liability for any breach of this Agreement.
10.03. Amendment, Extension and Waiver.
This Agreement may not be amended except by an instrument in writing
signed on behalf of all of the parties hereto by their authorized
representatives.
XI. MISCELLANEOUS
11.01. Legal and Other Fees.
Except as set forth herein or in Section 11.02 hereof, each party
shall bear all legal, banking and investment banking fees and other costs and
expenses incurred or to be incurred by it in connection with this Agreement and
the consummation of the transactions contemplated hereby. Seller shall bear all
fees, costs and expenses associated with the Surveys and Buyer shall bear all
fees, costs and expenses related to title insurance including, without
limitation,premiums,endorsement charges and title closing costs.
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11.02. Payment of Transfer Taxes and Tax Filings.
11.02(a). Buyer and Seller shall each pay one-half of the Transfer
Taxes imposed upon, or assessed upon or with respect to, the transfer of the
Assets to Buyer and any Transfer Taxes to effect any recording or filing with
respect thereto. Seller shall timely prepare and file any returns or other
filings relating to such Transfer Taxes, including any claim for exemption or
exclusion from the application or imposition of any Transfer Taxes, shall pay
such Transfer Taxes when due and shall promptly following the filing thereof
furnish a copy of such return or other filing and a copy of a receipt showing
payment of any such Transfer Tax to Buyer. Promptly after Seller shall have
furnished Buyer with a copy of each return or other filing and a copy of the
receipt for payment therefor, Buyer shall remit to Seller one-half of the
Transfer Tax shown on such receipt.
ll.02(b). Each party agrees to furnish or cause to be furnished to
the others, upon request, as promptly as practicable, such information and
assistance relating to the Assets or the U.S. Filtration and Minerals Business
as is reasonably necessary for the filing of all Tax returns, including any
claim for exemption or exclusion from the application or imposition of any Taxes
or making of any election related to Taxes, the preparation for any audit by any
taxing authority and the prosecution or defense of any claim, suit or proceeding
relating to any Tax return.
11.02(c). The parties acknowledge that the Cash Purchase Price will
be allocated among the Assets in accordance with section 1 of the Acquisition
Related Agreement Among New Celite, Buyer and Manville. Buyer and Seller agree
that they shall each prepare and file Internal Revenue Service Form 8594, as
required by Section 1060 of the Code and the Treasury Regulations thereunder in
a manner consistent with the foregoing allocation.
ll.02(d). Seller and Manville shall each deliver to Buyer at or
prior to the Closing an affidavit under penalties of perjury stating: (1) their
name, address and taxpayer identification number and (ii) that neither is a
"foreign person" within the meaning of Section 1445 of the Code.
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11.03. Waiver of Compliance and Consents.
Except as otherwise provided in this Agreement, any failure of any
of the parties to comply with any obligation, covenant, agreement or condition
herein may be waived by the party entitled to the benefit thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement or condition shall not operate as a waiver of or
estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.03. Notwithstanding
the foregoing, the Closing of the transactions contemplated hereunder shall
constitute a waiver of all conditions and all representations and warranties
which are not to survive the Closing.
11.04. Assignment; Parties in Interest.
11.04(a). This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of, and be enforceable by, the parties
hereto and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations herein shall be
assigned by any party hereto without the prior written consent of the other
parties hereto. Nothing contained in this Agreement, express or implied, is
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder except as provided in Section 9.02 hereof.
11.04(b). Nothing provided in Section 9.02(a) or otherwise herein
shall be deemed to reinstate, reaffirm or create rights in respect of the claims
of or obligations to any person in respect of any liability or obligation
discharged by, or assumed by the Manville Personal Injury Settlement Trust or
the Manville Property Damage Settlement Trust pursuant to the Second Amended and
Restated Plan of Reorganization of Manville Corporation and affiliated Debtors
and/or the Order of Confirmation thereof of the United States Bankruptcy Court
for the Southern District of New York dated December 22, 1986 (the "Order") and
the order reaffirming provisions thereof, dated May 16, 1991. In the event a
claim is made against Buyer or its successors, assigns or affiliates alleging
successor, transferee or other liability relating to any such liability or
obligation, Seller shall
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undertake the defense of such claim in accordance with the procedures set forth
in Article IX hereof, asserting, inter alia, as a defense to such claim the
injunction contained in paragraph (29)(a) of the Order.
11.05. Bulk Sales Laws.
Seller represents that the sale of the U.S. Filtration and Minerals
Business contemplated by this Agreement does not contravene applicable bulk
sales laws.
11.06. Entire Agreement.
11.06(a). This Agreement and the Schedules and other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire undertaking of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the parties
and their respective affiliates with respect to its subject matter other than
the Confidentiality Agreement between Alleghany and Manville dated March 13,
1991, which shall remain in effect until the Closing and shall thereupon cease
to be of any force and effect. In the event of any conflict or inconsistency
between the express terms of this Agreement and the Schedules attached hereto
the terms of this Agreement shall prevail.
ll.06(b). Except for the representations and warranties contained in
this Agreement, the Schedules hereto (to the extent they qualify this
Agreement), any certificate delivered pursuant to Article VII, any agreement
entered into pursuant hereto, any document described herein as previously
delivered by Seller, and any document subsequently delivered by Seller pursuant
hereto, Seller makes no representations or warranties and hereby disclaims any
such representations or warranties by Seller or any officer, director, employee
or agent of Seller with respect to this Agreement or the transactions
contemplated hereby.
11.07. Headings.
The Article and Section headings contained in this Agreement are for
reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
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11.08. Notices.
All notices, claims, certificates, requests, demands and other
communications hereunder will be in writing and will be deemed to have been duly
given if personally delivered or on the date of receipt or refusal indicated on
the return receipt if delivered or mailed (registered or certified mail, postage
prepaid, return receipt requested) as follows:
(A) If to Seller:
Manville Corporation
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
(B) If to Buyer or New Celite:
Celite Corporation
x/x Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxx Xxxxx
33rd Floor
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Leisure Xxxxxx & Irvine
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
or to such other address as the person to whom notice is to be given may have
previously furnished to the other in writing in the manner set forth above. For
purposes of all notices and other communications under this Agreement, Buyer
shall act on behalf of both itself and New Celite.
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11.09. Confidentiality.
11.09(a). Seller and its affiliates shall not, without the written
consent of Buyer, disclose to any person, other than as required by court order
or other legal compulsion (i) any confidential information provided to Buyer
pursuant to the Joint Defense Confidentiality Agreement dated April 8, 1991
entered into by Heller, Ehrman, White & XxXxxxxxx, counsel for Seller; Xxxxxxx
Leisure Xxxxxx & Irvine, counsel for Alleghany and Xxxxxx X. Xxxxxxx, counsel
for UNIMIN Corporation or (ii) any confidential information with respect to any
of the products, services, customers, suppliers, financial information,
marketing techniques, methods, trade secrets or future plans of the Filtration
and Minerals Business; provided, however, that confidential information shall
not include any information known or which becomes known generally to the public
(other than as a result of unauthorized disclosure by Seller, its affiliates or
any of their employees or representatives). Seller agrees that in the event that
it becomes legally compelled (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process) to disclose any such information, it will provide Buyer with prompt
written notice of such requirement so that Buyer may seek a protective order or
other appropriate remedy and/or waive compliance with this provision. In the
event that such protective order or other remedy is not obtained or Buyer does
not waive compliance with the provisions of this Agreement, Seller will furnish
only that portion of such information which it is advised by written opinion of
its outside counsel it is legally required to furnish, and shall exercise its
reasonable best efforts to obtain reliable assurance that confidential treatment
will be accorded ,the information so furnished. In such event, Seller will
notify Buyer not later than the time of such disclosure of the nature and extent
of such disclosure.
11.09(b). Buyer and its subsidiaries and affiliates shall not,
without the written consent of Seller, disclose to any person, other than as
required by court order or other legal compulsion, any confidential information
with respect to any of the products, services, customers, suppliers, financial
information, marketing techniques, methods, trade secrets or future plans of
Seller which do not relate to the Filtration and Minerals Business; provided,
however, that confidential information shall not include any information known
or which becomes known generally to the public (other than as a result of
unauthorized disclosure by
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Buyer, its affiliates or any of their employees or representatives). Buyer
agrees that in the event that it becomes legally compelled (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any such information, it
will provide Seller with prompt written notice of such requirement so that
Seller may seek a protective order or other appropriate remedy and/or waive
compliance with this provision. In the event that such protective order or other
remedy is not obtained or Seller does not waive compliance with the provisions
of this Agreement, Buyer will furnish only that portion of such information
which it is advised by written opinion of its outside counsel it is legally
required to furnish, and shall exercise its reasonable best efforts to obtain
reliable assurance that confidential treatment will be accorded the information
so furnished. In such event, Buyer will notify Seller not later than the time of
such disclosure of the nature and extent of such disclosure.
11.10. Governing Law and Submission to Jurisdiction.
This Agreement will be governed by, and construed and enforced in
accordance with, the laws of the State of New York without regard to its
conflict of law rules. To the maximum extent permitted by law, the parties agree
that all actions or proceedings arising in connection with this agreement shall
be tried and determined only in the State and Federal courts located in the
County of New York, State of New York. To the extent it may lawfully do so,
Seller waives any right it may have to assert the doctrine of forum non
conveniens or to object to venue to the extent any proceeding is brought in
accordance with this Section 11.10.
11.11. Seller's Knowledge.
For purposes hereof, a matter shall be deemed to be "to the best of
the knowledge" of Seller, and Seller shall be deemed to have "Knowledge of" a
matter, if any one or more of Seller's officers, directors, or senior management
of the U.S. Filtration and Minerals Business has current actual knowledge of the
matter in question after due inquiry.
11.12. Counterparts.
This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an
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original, but all of which together will constitute one and the same instrument.
11.13. Severability.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid,
void, unenforceable or against its regulatory policy, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of New Celite, Buyer and Seller as of
the date first above written.
CELITE HOLDINGS CORPORATION, a
Delaware corporation
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
Date: July 2, 1991
CELITE CORPORATION,
a Delaware corporation
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Treasurer
Date: July 2, 1991
MANVILLE SALES CORPORATION, a
Delaware corporation
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Date: July 2, 1991
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