Exhibit 2.1
EXECUTION COPY
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STOCK PURCHASE AGREEMENT
Dated as of May 3, 2002
Among
MILACRON INC.,
MILACRON B.V.
And
KENNAMETAL INC.
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TABLE OF CONTENTS
PAGE
ARTICLE I
PURCHASE AND SALE OF THE SHARES; CLOSING;
AND POST-CLOSING PURCHASE PRICE ADJUSTMENT
SECTION 1.01. Purchase and Sale of the Shares ...............................2
SECTION 1.02. Closing Date ..................................................2
SECTION 1.03. Transactions To Be Effected at the
Closing ..................................................3
SECTION 1.04. Post-Closing Purchase Price Adjustment ........................3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
SECTION 2.01. Organization and Standing .....................................7
SECTION 2.02. Capital Stock of the Acquired Companies and
Their Respective Subsidiaries ............................8
SECTION 2.03. Authority; Execution and Delivery;
Enforceability ...........................................9
SECTION 2.04. No Conflicts or Violations; No Consents or
Approvals Required ......................................10
SECTION 2.05. The Shares ...................................................11
SECTION 2.06. Assets Other than Real Property Interests ....................12
SECTION 2.07. Real Property ................................................12
SECTION 2.08. Intellectual Property ........................................13
SECTION 2.09. Contracts ....................................................16
SECTION 2.10. Permits ......................................................20
SECTION 2.11. Taxes ........................................................21
SECTION 2.12. Litigation ...................................................23
SECTION 2.13. Acquired Companies Benefit Plans .............................24
SECTION 2.14. Compliance with Applicable Laws ..............................25
SECTION 2.15. Financial Statements; Undisclosed
Liabilities .............................................27
SECTION 2.16. Absence of Changes or Events .................................28
SECTION 2.17. Sufficiency of Assets ........................................28
SECTION 2.18. Acquired Companies Insurance .................................29
SECTION 2.19. Euro-Affected Products and Services ..........................29
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
SECTION 3.01. Organization and Standing ....................................30
SECTION 3.02. Authority; Execution and Delivery;
Enforceability ..........................................30
Contents, p. 2
SECTION 3.03. No Conflicts or Violations; No Consents or
Approvals Required ......................................30
SECTION 3.04. Parent Benefit Plans .........................................31
SECTION 3.05. Insurance ....................................................32
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
SECTION 4.01. Organization and Standing ....................................33
SECTION 4.02. Authority; Execution and Delivery;
Enforceability ..........................................33
SECTION 4.03. No Conflicts or Violations; No Consents or
Approvals Required ......................................34
SECTION 4.04. Proceedings ..................................................35
SECTION 4.05. Securities Act ...............................................35
SECTION 4.06. Availability of Funds ........................................35
ARTICLE V
COVENANTS
SECTION 5.01. Covenants Relating to Conduct of Business ....................35
SECTION 5.02. Access to Information ........................................39
SECTION 5.03. Confidentiality ..............................................40
SECTION 5.04. Reasonable Best Efforts ......................................40
SECTION 5.05. Brokers or Finders ...........................................42
SECTION 5.06. Employee Matters .............................................42
SECTION 5.07. Tax Matters ..................................................43
SECTION 5.08. Publicity ....................................................48
SECTION 5.09. Resignations .................................................48
SECTION 5.10. No Use of Certain Names ......................................48
SECTION 5.11. No Further Financial Obligations .............................50
SECTION 5.12. Support Services .............................................51
SECTION 5.13. Post-Closing Information .....................................51
SECTION 5.14. Litigation Matters ...........................................51
SECTION 5.15. Certain Pre-Closing Matters ..................................52
SECTION 5.16. Purchaser's Obligation to Obtain SEBI
Exemption or Undertake Public Offer ..........................52
SECTION 5.17. Commercial Arrangements ......................................53
SECTION 5.18. No Negotiation ...............................................53
SECTION 5.19. Indemnification Rights .......................................53
SECTION 5.20. Intercompany Liabilities .....................................54
SECTION 5.21. Notarization .................................................55
SECTION 5.22 Collection of French Accounts Receivable .....................55
Contents, p. 3
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01. Conditions to Each Party's Obligation ........................56
SECTION 6.02. Conditions to Obligation of Purchaser ........................57
SECTION 6.03. Conditions to Obligation of Seller ...........................58
SECTION 6.04. Frustration of Closing Conditions ............................59
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.01. Termination ..................................................59
SECTION 7.02. Effect of Termination ........................................60
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Tax Indemnification ..........................................60
SECTION 8.02. Other Indemnification by Seller ..............................61
SECTION 8.03. Other Indemnification by Purchaser ...........................63
SECTION 8.04. Indemnification Procedures ...................................64
SECTION 8.05. Limitations on Tax Indemnification ...........................67
SECTION 8.06. Limitations on Indemnification ...............................67
SECTION 8.07. Calculation of Indemnity Payments ............................70
SECTION 8.08. Tax Treatment of Indemnification .............................70
SECTION 8.09. Audit Adjustments Relating to Income Taxes ...................71
SECTION 8.10. Parent's Guarantee of Indemnity ..............................71
ARTICLE IX
NON-SOLICITATION; NON-COMPETITION
SECTION 9.01. Covenant Not To Solicit for Employment .......................72
SECTION 9.02. Covenant Not To Compete ......................................73
SECTION 9.03. Permitted Activities of Seller and Parent ....................73
Contents, p. 4
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Assignment ..................................................74
SECTION 10.02. No Third-Party Beneficiaries ................................75
SECTION 10.03. Expenses ....................................................75
SECTION 10.04. Notices .....................................................75
SECTION 10.05. Headings; Certain Definitions ...............................77
SECTION 10.06. Counterparts; Notarization ..................................79
SECTION 10.07. Integrated Contract; Exhibits/Schedules .....................80
SECTION 10.08. Severability; Enforcement ...................................80
SECTION 10.09. Governing Law ...............................................81
SECTION 10.10. Consent to Jurisdiction .....................................81
SECTION 10.11. Waiver of Jury Trial ........................................81
SECTION 10.12. Amendments and Waivers ......................................82
Contents, p. 5
GLOSSARY OF DEFINED TERMS
LOCATION OF
DEFINITION DEFINED TERMS
Acquired Companies ......................................................Recital
Acquired Companies Benefit Plans ............................... Section 2.13(a)
Acquired Companies Contracts ................................... Section 2.09(b)
Acquired Companies Insurance Policies .......................... Section 5.01(b)
Acquired Companies Intellectual Property ....................... Section 2.08(b)
Acquired Companies Material Adverse Effect .....................Section 10.05(b)
Acquired Companies Property ....................................... Section 2.07
Acquired Company ....................................................... Recital
Acquisition ....................................................... Section 1.01
Actions ........................................................... Section 5.14
Adjusted Purchase Price .........................................Section 1.04(c)
Affected Employee ...............................................Section 5.06(a)
affiliate ......................................................Section 10.05(b)
Agreement ..............................................................Preamble
Ancillary Agreements ...............................................Section 2.03
Applicable Law .....................................................Section 2.04
Articles .......................................................Section 10.05(a)
Business ...........................................................Section 9.02
business day ...................................................Section 10.05(b)
CBA .............................................................Section 5.06(f)
Closing ............................................................Section 1.02
Closing Date .......................................................Section 1.02
Closing Net Assets ..............................................Section 1.04(a)
Code ............................................................Section 2.11(a)
Confidentiality Agreement ..........................................Section 5.03
Consent ............................................................Section 2.04
Contract ...........................................................Section 2.04
Covered Persons ....................................................Section 9.01
Employment Regulations ..........................................Section 5.06(a)
Environmental Laws ..............................................Section 2.14(d)
Environmental Permits ...........................................Section 2.14(d)
ERISA ..............................................................Section 3.04
Euro ...........................................................Section 10.05(b)
Excluded Liabilities ...........................................Section 10.05(b)
Exhibits .......................................................Section 10.05(a)
Financial Statements ...............................................Section 2.15
Financing ..........................................................Section 4.06
Former Employee .................................................Section 5.06(e)
French Accounts Receivable .........................................Section 5.22
GAAP ...............................................................Section 2.15
Contents, p. 6
Geographic Area ....................................................Section 9.02
Governmental Entity ................................................Section 2.04
Group Insurance Policies ........................................Section 5.01(b)
Guaranteed Obligations ..........................................Section 8.10(a)
Guarantees .........................................................Section 5.11
Hazardous Materials .............................................Section 2.14(d)
including ......................................................Section 10.05(b)
Income Tax ......................................................Section 2.11(a)
Income Taxes ....................................................Section 2.11(a)
Indemnified Party ...............................................Section 8.04(i)
Indemnifying Party ..............................................Section 8.04(i)
Independent Expert ...........................................Section 1.04(b)(2)
Insurance Policies ..............................................Section 5.01(b)
Intellectual Property ...........................................Section 2.08(e)
Italian Actions ....................................................Section 5.14
Judgment ...........................................................Section 2.04
knowledge ......................................................Section 10.05(b)
Xxxxx Settlement Agreement .........................................Section 8.02
Xxxxx Stock Purchase Agreement .....................................Section 5.19
Leased Property ....................................................Section 2.07
License Agreement ...............................................Section 2.09(d)
Licensed Intellectual Property ..................................Section 2.08(b)
Liens ...........................................................Section 2.06(a)
Losses .............................................................Section 8.02
Milacron Germany ........................................................Recital
Milacron Germany Ordinary Shares ........................................Recital
Milacron Names ..................................................Section 5.10(a)
Net Assets ......................................................Section 1.04(d)
Notice of Objection ..........................................Section 1.04(b)(1)
Organizational Documents .......................................Section 10.05(b)
other bid ..........................................................Section 5.18
Owned Intellectual Property .....................................Section 2.08(a)
Owned Property .....................................................Section 2.07
Pension Plan .......................................................Section 3.04
Parent .................................................................Preamble
Parent Benefit Plans ...............................................Section 3.04
Parent Material Adverse Effect .....................................Section 3.03
Permits ............................................................Section 2.10
Permitted Liens .................................................Section 2.06(a)
person .........................................................Section 10.05(b)
Post-Closing Tax Period .........................................Section 5.07(f)
Pre-Closing Tax Period ..........................................Section 2.11(a)
Proceeding .........................................................Section 2.12
Public Offer .......................................................Section 5.16
Purchase Price .....................................................Section 1.01
Purchase Price Adjustment Payment Date .............................Section 5.10
Purchaser ..............................................................Preamble
Contents, p. 7
Purchaser Indemnitees ...........................................Section 8.01(a)
Purchaser Material Adverse Effect ..................................Section 4.01
Purchaser Tax Act ...............................................Section 8.01(a)
Receivables Agreement ...........................................Section 5.01(a)
Reference Net Assets ............................................Section 1.04(c)
Reference Statement ................................................Section 2.15
Release .........................................................Section 2.14(d)
SAK ................................................................Section 8.02
Schedules ......................................................Section 10.05(a)
SEBI ...............................................................Section 2.04
SEBI Regulations ...................................................Section 5.16
Sections .......................................................Section 10.05(a)
Seller .................................................................Preamble
Seller Defenses .................................................Section 8.10(c)
Seller Entities ....................................................Section 5.11
Seller Indemnitees ..............................................Section 8.01(b)
Separation Agreements ...........................................Section 2.09(d)
Settlement Agreement ............................................Section 6.02(d)
Share Purchase Agreement ........................................Section 6.02(d)
Shareholders' Agreement ............................................Section 8.02
Shares .................................................................Recitals
Statement .......................................................Section 1.04(a)
Straddle Period ..............................................Section 5.07(b)(i)
subsidiary .....................................................Section 10.05(b)
Supply Agreement ................................................Section 2.09(d)
Tax .............................................................Section 2.11(a)
Tax Claim .......................................................Section 8.04(b)
Tax Indemnified Party ...........................................Section 8.04(b)
Tax Indemnifying Party ..........................................Section 8.04(b)
Tax Return ......................................................Section 2.11(a)
Taxes ...........................................................Section 2.11(a)
Taxing Authority ................................................Section 2.11(a)
Technology ......................................................Section 2.08(e)
Third Party Claim ...............................................Section 8.04(i)
Total Assets ....................................................Section 1.04(d)
Total Liabilities ...............................................Section 1.04(d)
Transfer Taxes ..................................................Section 2.11(a)
Valenite ........................................................Section 2.09(d)
Valenite Distribution Agreement .................................Section 2.09(d)
Welfare Plan .......................................................Section 3.04
Werko ...........................................................Section 2.11(h)
Werko Acquisition Agreement ........................................Section 5.19
Widia Distribution Agreement ....................................Section 2.09(d)
Widia France ............................................................Recital
Widia France Ordinary Shares ............................................Recital
Widia Germany ...................................................Section 2.09(d)
Widia India .....................................................Section 2.02(a)
Contents, p. 8
Widia Italy .............................................................Recital
Widia Italy Ordinary Shares .............................................Recital
Widia Names .....................................................Section 5.10(b)
Widia Netherlands .......................................................Recital
Widia Netherlands Ordinary Shares .......................................Recital
Widia Spain .............................................................Recital
Widia Spain Ordinary Shares .............................................Recital
Widia U.K ...............................................................Recital
Widia U.K. Ordinary Shares ..............................................Recital
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of May 3, 2002 (this
"AGREEMENT"), among MILACRON INC., a Delaware corporation
("PARENT"), MILACRON B.V., a company organized under the laws of
The Netherlands and an indirect wholly owned subsidiary of Parent
("SELLER"), and KENNAMETAL INC., a Pennsylvania corporation
("PURCHASER").
WHEREAS Purchaser desires to purchase from Seller, and Seller desires to
sell to Purchaser, (i) all the existing ordinary shares ("the "MILACRON GERMANY
ORDINARY SHARES") of Milacron Metalworking Technologies Holding GmbH, a company
organized under the laws of the Federal Republic of Germany and a direct wholly
owned subsidiary of Seller ("MILACRON GERMANY"), (ii) all the issued and
outstanding ordinary shares, par value NLG 100 per share (the "WIDIA NETHERLANDS
ORDINARY SHARES"), of Widia Nederland B.V., a company organized under the laws
of The Netherlands and an indirect wholly owned subsidiary of Seller ("WIDIA
NETHERLANDS"), (iii) all the issued and outstanding ordinary shares, nominal
value PTS 1,000 per share (the "WIDIA SPAIN ORDINARY SHARES"), of Milacron
Iberica S.L., a company organized under the laws of the Kingdom of Spain and a
direct wholly owned subsidiary of Seller to be renamed Widia Iberica S.L.
("WIDIA SPAIN"), (iv) all the issued and outstanding ordinary shares, par value
GBP 1 per share (the "WIDIA U.K. ORDINARY SHARES"), of Milacron U.K. Ltd., a
company organized under the laws of England and Wales and a direct wholly owned
subsidiary of Seller to be renamed Widia U.K. Ltd.("WIDIA U.K."), (v) all the
issued and outstanding ordinary shares, nominal value FFR 100 per share (the
"WIDIA FRANCE ORDINARY SHARES"), of Milacron France SAS, a company organized
under the laws of the Republic of France and a direct wholly owned subsidiary of
Seller to be renamed Widia France SAS ("WIDIA FRANCE"), and (vi) all the issued
and outstanding ordinary shares (the "WIDIA ITALY ORDINARY SHARES" and,
collectively with the Milacron Germany Ordinary Shares, the Widia Netherlands
Ordinary Shares, the Widia Spain Ordinary Shares, the Widia U.K. Ordinary Shares
and the Widia France Ordinary Shares, the "SHARES"), of Widia Italia S.r.l., a
company organized under the laws of the Republic of Italy and a direct wholly
owned subsidiary of Seller ("WIDIA ITALY" and, collectively with Xxxxxxxx
0
Xxxxxxx, Xxxxx Xxxxxxxxxxx, Widia Spain, Widia U.K. and Widia France, the
"ACQUIRED COMPANIES", and each an "ACQUIRED COMPANY").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES; CLOSING;
AND POST-CLOSING PURCHASE PRICE ADJUSTMENT
SECTION 1.01. PURCHASE AND SALE OF THE SHARES. On the terms and subject to
the conditions of this Agreement, at the Closing (as defined in Section 1.02),
Seller shall sell, transfer and (insofar as physically existing) deliver to
Purchaser, and Purchaser shall purchase from Seller, the Shares for an aggregate
purchase price of (euro)188,282,202 (the "PURCHASE PRICE"). The Purchase Price
shall be subject to adjustment as provided in Section 1.04. Purchaser shall pay
an amount equal to the Purchase Price to Seller on the Closing Date by wire
transfer of immediately available funds to an account designated in writing by
Seller to Purchaser at least two business days before the Closing Date. The
purchase and sale of the Shares is referred to in this Agreement as the
"ACQUISITION".
SECTION 1.02. CLOSING DATE. The closing of the Acquisition (the "CLOSING")
shall take place at the offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. on the fifth business day following the
satisfaction (or, to the extent permitted, the waiver) of the conditions set
forth in Section 6.01, or, if on such day any other condition set forth in
Article VI has not been satisfied (or, to the extent permitted, waived by the
party or parties entitled to the benefit thereof), as soon as practicable after
all the conditions set forth in Article VI have been satisfied (or, to the
extent permitted, waived by the party or parties entitled to the benefit
thereof), or at such other place, time and date as may be agreed by Seller and
Purchaser; PROVIDED, that the Closing shall in no event take place prior to July
1, 2002, unless (x) prior to such date Purchaser shall have entered into a new
credit facility in replacement of its existing senior credit facility or (y)
Seller and Purchaser otherwise agree.
3
The date on which the Closing occurs is referred to in this Agreement as the
"CLOSING DATE". The Closing shall be deemed to be effective as of the close of
business on the Closing Date.
SECTION 1.03. TRANSACTIONS TO BE EFFECTED AT THE CLOSING. At the Closing:
(a) Seller shall (insofar as physically existing) deliver to
Purchaser certificates representing the Shares and Seller and
Purchaser shall duly execute (i) a notarial share transfer agreement
with respect to the Milacron Germany Ordinary Shares, substantially in
the form set forth in Exhibit A hereto, (ii) a notarial deed of
transfer with respect to the Widia Netherlands Ordinary Shares,
substantially in the form set forth in Exhibit B hereto, (iii) a
notarial share transfer agreement with respect to the Widia Spain
Ordinary Shares, substantially in the form set forth in Exhibit C
hereto, (iv) a stock transfer agreement with respect to the Widia U.K.
Ordinary Shares, substantially in the form set forth in Exhibit D
hereto, (v) a share transfer agreement with respect to the Widia
France Ordinary Shares, substantially in the form set forth in Exhibit
E hereto, and (vi) a share transfer agreement with respect to the
Widia Italy Ordinary Shares, substantially in the form set forth in
Exhibit F hereto; and
(b) Purchaser shall deliver to Seller, in the manner set forth in
Section 1.01, immediately available funds in an amount equal to the
Purchase Price.
SECTION 1.04. POST-CLOSING PURCHASE PRICE ADJUSTMENT. (a) THE STATEMENT.
Within 60 days after the Closing Date, Seller shall prepare and deliver to
Purchaser a statement (the "STATEMENT"), setting forth Net Assets (as defined in
Section 1.04(d)) as of the close of business on the Closing Date ("CLOSING NET
ASSETS") determined in accordance with the accounting principles, practices,
methodologies and policies used in the preparation of the Reference Statement
(as defined in Section 2.15), except as provided in Schedule 1.04(a). During
such 60-day period, at Purchaser's request, Seller shall provide Purchaser a
reasonable opportunity to inquire as to Seller's preparation of the Statement.
After the Closing Date, at Seller's request, Purchaser shall assist, and shall
cause the
4
Acquired Companies and their respective subsidiaries (as defined in Section
10.05(b)) to assist Seller and its representatives in the preparation of the
Statement and shall provide Seller and its representatives any information
reasonably requested and shall provide them access at all reasonable times to
the personnel, properties, books and records of the Acquired Companies and their
respective subsidiaries for such purpose.
(b) OBJECTIONS; RESOLUTION OF DISPUTES. (1) Unless Purchaser notifies
Seller in writing within 30 days after Seller's delivery of the Statement of any
objection to any component of the computation of Closing Net Assets set forth
therein (the "NOTICE OF OBJECTION"), such computation shall be final and
binding. During such 30-day period Purchaser and its representatives shall be
permitted to review the working papers of Seller relating to the Statement. Any
Notice of Objection shall specify in reasonable detail the basis for the
objections set forth therein. Any Notice of Objection shall include only
objections based on (i) mathematical errors in the computation of Closing Net
Assets or (ii) Closing Net Assets not having been calculated in accordance with
the consistent application of the accounting principles, practices,
methodologies and policies used in the preparation of the Reference Statement
(after taking into consideration the provisions of Schedule 1.04(a)). Seller and
Purchaser acknowledge that (i) the sole purpose of the determination of Closing
Net Assets is to adjust the Purchase Price so as to reflect the change in Net
Assets from December 31, 2001, to the Closing Date and (ii) such change is to be
measured on a totally consistent basis so that the calculation is to be done
using the same accounting principles, practices, methodologies and policies used
in the preparation of the Reference Statement, except as provided in Schedule
1.04(a).
(2) If Purchaser provides the Notice of Objection to Seller within such
30-day period, Purchaser and Seller shall, during the 30-day period following
Seller's receipt of the Notice of Objection, attempt in good faith to resolve
Purchaser's objections. During the 30-day period following Seller's receipt of
the Notice of Objection, Seller and its representatives shall be permitted to
review the working papers of Purchaser and its representatives relating to the
Notice of Objection and the basis therefor. If Purchaser and Seller are unable
to resolve all such objections within such 30-day period, the matters remaining
in dispute shall
5
be submitted to an internationally recognized public accounting firm mutually
agreed upon by Purchaser and Seller (or, if Purchaser and Seller are unable to
so agree within 10 days after the end of such 30-day period or the firm so
selected declines to act, then Purchaser and Seller shall each select an
internationally recognized public accounting firm and such firms shall jointly
select a third internationally recognized firm to resolve the disputed matters
(such determining firm being the "INDEPENDENT EXPERT")). The parties shall
instruct the Independent Expert to render its reasoned written decision as
promptly as practicable but in no event later than 60 days after its selection.
The resolution of disputed items by the Independent Expert shall be final and
binding, and the determination of the Independent Expert shall constitute an
arbitral award that is final, binding and non-appealable and upon which a
judgment may be entered by a court having jurisdiction thereover. The fees and
expenses of the Independent Expert shall be borne 50% by Purchaser and 50% by
Seller. After final determination of Closing Net Assets, Purchaser shall have no
further right to make any claims against Seller in respect of any post-Closing
Purchase Price adjustment hereunder.
(c) ADJUSTMENT PAYMENT. The Purchase Price shall be increased by the amount
by which Closing Net Assets exceed (euro)126,865,000 (the "REFERENCE NET
ASSETS"), and the Purchase Price shall be decreased by the amount by which
Closing Net Assets are less than the Reference Net Assets (the Purchase Price,
as so increased or decreased, being hereinafter called the "ADJUSTED PURCHASE
PRICE"). Within 10 days after Closing Net Assets have been finally determined in
accordance with Section 1.04(b), (i) if the Purchase Price is less than the
Adjusted Purchase Price, Purchaser shall pay to Seller an amount equal to such
difference, together with interest thereon at a rate of 3% per annum from the
Closing Date to the date of payment, and (ii) if the Purchase Price is greater
than the Adjusted Purchase Price, Seller shall pay to Purchaser an amount equal
to such difference, together with interest thereon at a rate of 3% per annum
from the Closing Date to the date of payment. Any such payment hereunder shall
be made by wire transfer of immediately available funds to an account designated
in writing by Purchaser or Seller, as the case may be.
6
(d) NET ASSETS. The term "NET ASSETS" means Total Assets minus Total
Liabilities. The terms "TOTAL ASSETS" and "TOTAL LIABILITIES" mean the total
assets and total liabilities, respectively, of the Acquired Companies and their
respective subsidiaries, calculated in the same way, using the same accounting
principles, practices, methodologies and policies, as the line items comprising
total assets and total liabilities, respectively, on the Reference Statement
(except as provided in Schedule 1.04(a)); PROVIDED, HOWEVER, that Total Assets
and Total Liabilities shall be adjusted to the extent necessary so as to exclude
any purchase accounting adjustments to the accounting books and records for
financial reporting purposes which may be recorded by the Acquired Companies or
any of their respective subsidiaries as a result of the transactions
contemplated by this Agreement. For purposes of the preparation of the
Statement, Total Assets and Total Liabilities that are denominated in currencies
other than the euro shall be translated into euro using (i) for the currencies
set forth in Schedule 1.04(d), the applicable exchange rates set forth therein
and (ii) for all other currencies, the exchange rates for the applicable
currencies as of December 20, 2001, as reflected in the Financial Statements for
December 31, 2001.
(e) POST-CLOSING BOOKS AND RECORDS. Except for the consummation of the
Closing, Purchaser and Seller agree that on the Closing Date itself the Acquired
Companies shall, and shall cause their respective subsidiaries to, conduct their
respective businesses in the ordinary course in a manner substantially
consistent with past practice. Following the Closing, Purchaser shall not take
any action with respect to the accounting books and records of any Acquired
Company or any of its subsidiaries on which the Statement is to be based that is
not consistent with the past practices of such Acquired Company and its
subsidiaries and which would affect the Reference Statement or the Statement.
Without limiting the generality of the foregoing, no changes shall be made in
any reserve or other account existing as of the date of the Reference Statement,
except as a result of events occurring after the date of the Reference Statement
and, in such event, only in a manner consistent with the past practices of the
Acquired Companies and their respective subsidiaries.
7
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to purchaser as to itself and the
acquired companies and their respective subsidiaries, as applicable, as of the
date hereof and as of the Closing Date, except to the extent any such
representation or warranty expressly relates to an earlier date (in which case
such representation or warranty shall be made solely as of such earlier date),
as follows (it being understood that for purposes of the following
representations and warranties it is assumed that the transactions contemplated
in Schedule 5.15 have been authorized by Seller and consummated as of the date
hereof):
SECTION 2.01. ORGANIZATION AND STANDING. (a) Seller is validly existing
under the laws of The Netherlands. Each Acquired Company and each of its
subsidiaries is validly existing and, to the extent such concept is known in the
jurisdiction of its organization, in good standing under the laws of the
jurisdiction of its organization, which jurisdiction is set forth opposite its
name in Schedule 2.01. Each Acquired Company and each of its subsidiaries has
full corporate power and authority to enable it to own, lease or otherwise hold
its properties and assets and to carry on its business as currently conducted.
Each Acquired Company and each of its subsidiaries is duly qualified and, to the
extent such concept is known in the jurisdiction of its organization, in good
standing to do business as a foreign corporation in each jurisdiction in which
the conduct or nature of its business or the ownership, leasing or holding of
its properties makes such qualification necessary, except for such jurisdictions
where the failure to be so qualified or in good standing would not reasonably be
expected to have a material adverse effect on the business of such Acquired
Company or such subsidiary.
(b) Seller has made available to Purchaser true and complete copies of the
Organizational Documents (as defined in Section 10.05(b)) of each Acquired
Company and each subsidiary of an Acquired Company, as in effect as of the date
of this Agreement. The minute books and share record books of the Acquired
Companies and their respective subsidiaries that are maintained by individuals
appointed by Seller are true and complete in all material respects for the
period from February 1, 1995 to the date of this
8
Agreement. As of the Closing Date, all such books will be in the possession of
the Acquired Companies and their respective subsidiaries.
(c) As of date of this Agreement, no bankruptcy or other insolvency
proceedings against any of the Acquired Companies or any of their respective
subsidiaries has been applied for nor has such application been rejected due to
the lack of assets and, to the knowledge of Seller, none of the Acquired
Companies and their respective subsidiaries has any intention of voluntarily
initiating any bankruptcy or insolvency proceeding.
(d) Widia Italy has been formed for the sole purpose of consummating the
Acquisition and the other transactions contemplated by this Agreement. As of the
Closing Date, Widia Italy will not have conducted any business other than the
businesses transferred to it in accordance with the transactions outlined in
Schedule 5.15 and any business incidental thereto.
SECTION 2.02. CAPITAL STOCK OF THE ACQUIRED COMPANIES AND THEIR RESPECTIVE
SUBSIDIARIES. (a) Schedule 2.02 sets forth, for each of the Acquired Companies
and their respective subsidiaries, to the extent applicable thereto, (i) the
amount of its authorized capital stock, (ii) the par value of such capital
stock, (iii) the number of shares of capital stock issued and outstanding as of
the date of this Agreement, (iv) other than in the case of Widia (India)
Limited, a company organized under the laws of the State of Karnataka, India
("WIDIA INDIA"), the record owners of all outstanding capital stock and (v) the
number of ordinary shares of Widia India held of record as of the date of this
Agreement by Meturit AG, a company organized under the laws of Switzerland and
an indirect subsidiary of Milacron Germany. Except for the Shares, there are no
shares of capital stock or other equity securities of any of the Acquired
Companies issued, reserved for issuance or outstanding. Except as set forth in
Schedule 2.02, there are no shares of capital stock or other equity securities
of any subsidiary of an Acquired Company issued, reserved for issuance or
outstanding. The Shares and the ordinary shares of each subsidiary of an
Acquired Company are duly authorized, validly issued, fully paid and
non-assessable (e.g., meaning that there exist no obligations of the
shareholders holding such shares to make additional contributions with respect
to their ownership of such
9
shares). Except as set forth in Schedule 2.02, there are no outstanding (x)
contractual obligations of any of the Acquired Companies or any of their
respective subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock of an Acquired Company or a subsidiary of an Acquired Company, (y)
options, warrants, convertible securities, subscriptions or other commitments or
rights (including pre-emptive rights, other than such rights granted by
Applicable Law) to acquire any shares of capital stock of any of the Acquired
Companies or any of their respective subsidiaries or (z) Contracts (as defined
in Section 2.04) to which Seller or any of the Acquired Companies is a party and
which provide for the issuance, sale or transfer of any shares of capital stock
or ordinary shares of any Acquired Company or any subsidiary of an Acquired
Company.
(b) Except for its interests in its subsidiaries and except for the
ownership interests set forth in Schedule 2.02, none of the Acquired Companies
and their respective subsidiaries owns, directly or indirectly, or has entered
into a Contract to purchase any capital stock or ordinary shares of or other
equity interests in any corporation, partnership or other person or is a member
of or participant in any partnership, joint venture or similar person.
(c) None of the outstanding equity securities of an Acquired Company or
subsidiary of an Acquired Company has been issued in violation of Applicable
Law.
SECTION 2.03. AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY. Seller has
full corporate power and authority to execute this Agreement and the other
agreements and instruments executed and delivered, or to be executed and
delivered, in connection with this Agreement (the "ANCILLARY AGREEMENTS") to
which it is, or is specified to be, a party and to consummate the Acquisition
and the other transactions contemplated to be consummated by it by this
Agreement and the Ancillary Agreements. Seller has taken all corporate action
required by its Articles of Association to authorize the execution and delivery
of this Agreement and the Ancillary Agreements to which it is, or is specified
to be, a party and to authorize the consummation of the Acquisition and the
other transactions contemplated to be consummated by it by this Agreement and
the Ancillary Agreements. Seller has duly executed and delivered this
10
Agreement and prior to the Closing will have duly executed and delivered each
Ancillary Agreement to which it is, or is specified to be, a party, and this
Agreement constitutes, and each Ancillary Agreement to which it is, or is
specified to be, a party will after the Closing constitute, its legal, valid and
binding obligation, enforceable against it in accordance with its terms subject,
as to enforcement, to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting creditors' rights generally and to
general equitable principles.
SECTION 2.04. NO CONFLICTS OR VIOLATIONS; NO CONSENTS OR APPROVALS
REQUIRED. Except as set forth in Schedule 2.04, the execution and delivery by
Seller of this Agreement do not, the execution and delivery by Seller of each
Ancillary Agreement to which it is, or is specified to be, a party will not, and
the consummation of the Acquisition and the other transactions contemplated to
be consummated by it by this Agreement and the Ancillary Agreements will not
conflict with, or result in any material breach of or constitute a material
default under, or result in the creation of any Lien (as defined in Section
2.06) upon any of the properties or assets of Seller, any of the Acquired
Companies or any of the subsidiaries of any of the Acquired Companies under, any
provision of (i) in the case of Seller, its Articles of Association and, in the
case of the Acquired Companies and their respective subsidiaries, their
comparable Organizational Documents, (ii) any material written contract,
agreement or other legally binding instrument (such written contract, agreement
or other legally binding instrument, whether or not material, a "CONTRACT") to
which Seller, any of the Acquired Companies or any of the subsidiaries of any of
the Acquired Companies is a party or by which any of their respective properties
or assets is bound or (iii) any material award, decision, injunction, judgment,
order, ruling, subpoena or verdict entered, issued, made or rendered by any
Governmental Entity (as defined below) or by any arbitrator (such award,
decision, injunction, judgment, order, ruling, subpoena or verdict, whether or
not material, a "JUDGMENT") or material statute, law, ordinance, rule or
regulation (such statute, law, ordinance, rule or regulation, whether or not
material, an "APPLICABLE LAW") applicable to Seller, any of the Acquired
Companies or any of the subsidiaries of any of the Acquired Companies or their
respective properties or assets. No consent, approval or authorization
("CONSENT") of, or registration, declaration or filing with, any Federal,
11
state, local, international or foreign court of competent jurisdiction,
governmental agency, authority, instrumentality or regulatory body, including
any authority, body or division of the European Union (a "GOVERNMENTAL ENTITY"),
is required to be obtained or made by or with respect to Seller, any of the
Acquired Companies or any of the subsidiaries of any of the Acquired Companies
in connection with the execution, delivery and performance of this Agreement or
the consummation of the Acquisition and the other transactions contemplated by
this Agreement (other than the transactions contemplated in Schedule 5.15),
other than (A) compliance with and filings under the competition laws or
regulations of the Federal Republic of Germany and any other applicable
competition, antitrust or similar laws or regulations, (B) compliance with, and
any filings, notifications and completion of any public offer requirements
under, the securities laws of India and the rules and regulations of the
Securities and Exchange Board of India ("SEBI") promulgated thereunder, (C)
compliance with and filings and notifications under applicable Environmental
Laws (as defined in Section 2.14(d)), (D) those that may be required solely by
reason of Purchaser's (as opposed to any other third party's) participation in
the Acquisition and the other transactions contemplated hereby and by the
Ancillary Agreements and (E) those the failure of which to obtain or make would
not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business of any of the Acquired Companies or any of their
respective subsidiaries.
SECTION 2.05. THE SHARES. Seller has good and valid title to the Shares
(other than the Widia Netherlands Ordinary Shares), free and clear of all Liens,
and will have good and valid title to the Widia Netherlands Ordinary Shares,
free and clear of all Liens, on or prior to the Closing Date. Assuming Purchaser
has the requisite power and authority to be the lawful owner of the Shares, upon
delivery to Purchaser at the Closing of certificates (insofar as physically
existing) representing the Shares, duly endorsed by Seller, as the case may be,
for transfer to Purchaser or due execution of a notarial share transfer
agreement with respect to the Milacron Germany Ordinary Shares (substantially in
the form set forth in Exhibit A hereto) and the title transfer documents with
respect to the other Shares (substantially in the forms set forth in Exhibits B
through F hereto), and upon Seller's receipt of the Purchase Price on the
Closing Date, good and valid title
12
to the Shares will pass to Purchaser, free and clear of any Liens, other than
those arising from acts of Purchaser or its affiliates. Except as set forth in
Schedule 2.05, and other than this Agreement, the Shares are not subject to any
voting trust agreement or other Contract restricting or otherwise relating to
the voting, dividend rights or disposition of the Shares.
SECTION 2.06. ASSETS OTHER THAN REAL PROPERTY INTERESTS. (a) One or more of
the Acquired Companies or one or more of their respective subsidiaries has good
and valid title to all the assets reflected on the Reference Statement or
thereafter acquired, except for the existence of customary retention of title
arrangements, and other than the assets set forth in Schedule 2.06 or otherwise
disposed of since the date of the Reference Statement, in each case free and
clear of all mortgages, liens, charges, claims, pledges, usufruct, attachments,
transfers for security or other encumbrances of any kind (collectively,
"LIENS"), except (i) such Liens as are set forth in Schedule 2.06, (ii)
mechanics', carriers', workmens', repairmens', landlords' or other like Liens
arising or incurred in the ordinary course of business and which do not
materially impair the continued use and operation of the assets to which such
Liens relate in the conduct of the business of the Acquired Companies and their
respective subsidiaries as currently conducted, (iii) Liens arising under
original purchase price conditional sales contracts and equipment leases with
third parties entered into in the ordinary course of business and which do not
materially impair the continued use and operation of the assets to which such
Liens relate in the conduct of the business of the Acquired Companies and their
respective subsidiaries as currently conducted, (iv) Liens for Taxes (as defined
in Section 2.11(a)) and other governmental charges that are not due and payable
or that may thereafter be paid without penalty, (v) Liens that secure debt that
is set forth in Schedule 2.06 and (vi) other imperfections of title, licenses or
encumbrances, if any, which do not materially impair the continued use and
operation of the assets to which they relate in the conduct of the business of
the Acquired Companies and their respective subsidiaries as currently conducted
(the Liens described in clauses (i) through (vi) above, together with the Liens
referred to in clauses (ii) through (vi) of Section 2.07, are referred to
collectively as "PERMITTED LIENS").
13
(b) This Section 2.06 does not relate to real property or interests in real
property, such items being the subject of Section 2.07, or to Intellectual
Property, which is the subject of Section 2.08.
SECTION 2.07. REAL PROPERTY. Schedule 2.07 sets forth a list that includes
all real property and interests in real property owned in fee by one or more of
the Acquired Companies or one or more of their respective subsidiaries, in each
case with a book value, as of December 31, 2001, in excess of (euro)100,000
(individually, an "OWNED PROPERTY"). Schedule 2.07 also sets forth a list that
includes all real property and interests in real property leased by one or more
of the Acquired Companies or one or more of their respective subsidiaries with
respect to each of which the annual rental payments exceed (euro)40,000
(individually, a "LEASED PROPERTY"). One or more of the Acquired Companies or
one or more of their respective subsidiaries has good and valid fee title to all
Owned Property and valid leasehold interests and leasehold estates in all Leased
Property (an Owned Property or Leased Property being sometimes referred to
herein, individually, as an "ACQUIRED COMPANIES PROPERTY"), in each case, free
and clear of all Liens, except for (i) Permitted Liens, (ii) such Liens as are
set forth in Schedule 2.07, (iii) any lease, sublease or similar agreement which
(x) is set forth in Schedule 2.09 or (y) specifies annual rental payments of
(euro)40,000 or less, (iv) easements, covenants, rights-of-way and other similar
restrictions of record, (v) any conditions that may be shown by a current,
accurate survey or that would be apparent as part of a physical inspection of
any Acquired Companies Property or of any land register or other public register
pertaining thereto made prior to the Closing and (vi) (A) zoning, building and
other similar restrictions, (B) Liens that have been placed by any developer,
landlord or other third party on property over which one or more of the Acquired
Companies or one or more of their respective subsidiaries has easement rights or
on any Leased Property and subordination or similar agreements relating thereto
and (C) unrecorded easements, covenants, rights-of-way and other similar
restrictions. None of the items set forth in clauses (iv), (v) or (vi) of the
immediately preceding sentence materially impairs the continued use and
operation of the Acquired Companies Property to which it relates in the conduct
of the business of the Acquired Companies and their respective subsidiaries as
currently conducted. This Section 2.07 does not relate to environmental matters,
such
14
matters being the subject of Sections 2.14(b), 2.14(c) and 2.14(d).
SECTION 2.08. INTELLECTUAL PROPERTY. (a) Schedule 2.08 sets forth a list
that includes all material Intellectual Property (as defined in Section
2.08(e)), owned, registered or filed by one or more of the Acquired Companies or
one or more of their respective subsidiaries (all such Intellectual Property,
whether or not material, is referred to in this Agreement as the "OWNED
INTELLECTUAL PROPERTY"). With respect to the material Owned Intellectual
Property that is registered or subject to an application for registration,
Schedule 2.08 sets forth a list that includes the jurisdictions where such
Intellectual Property is registered or where applications have been filed, and
all registration numbers. Except as set forth in Schedule 2.08, the Acquired
Companies and their respective subsidiaries, collectively, are the sole owners
of the Owned Intellectual Property free and clear of all Liens, other than
Permitted Liens, and have the right to use and sublicense, without payment to
any other person, all the Owned Intellectual Property. The Acquired Companies
and their respective subsidiaries, collectively, are the owners of the
Technology of the Acquired Companies and their respective subsidiaries, free and
clear of all Liens, other than Permitted Liens.
(b) Schedule 2.08 also sets forth a list that includes all licenses of
material Intellectual Property to one or more of the Acquired Companies or one
or more of their respective subsidiaries (all such Intellectual Property,
whether or not material, is referred to in this Agreement as the "LICENSED
INTELLECTUAL PROPERTY", and together with the Owned Intellectual Property, the
"ACQUIRED COMPANIES INTELLECTUAL PROPERTY"). Except as set forth in Schedule
2.08, none of the Acquired Companies or any of their respective subsidiaries has
granted any license of any kind relating to any Acquired Companies Intellectual
Property or any Technology (as defined in Section 2.08(e)) of the Acquired
Companies and their respective subsidiaries, except nonexclusive licenses to
end-users in the ordinary course of business. None of the Acquired Companies or
any of their respective subsidiaries is bound by or a party to any option,
license or similar Contract relating to any material Intellectual Property of
any other person for the use of such Intellectual Property in the conduct of its
business, except as set forth in Schedule 2.08 and except
15
for license agreements relating to commercial computer software licensed to one
or more of the Acquired Companies or one or more of their respective
subsidiaries in the ordinary course of business. Except as set forth in Schedule
2.08, no claims are pending or, to the knowledge of Seller, threatened, as of
the date of this Agreement against any of the Acquired Companies or any of their
respective subsidiaries by any person claiming infringement by such Acquired
Company or subsidiary of a proprietary right of such person in any Intellectual
Property or Technology.
(c) The Acquired Companies and their respective subsidiaries have paid all
fees required to be paid, and have made all renewals required to be made, for
the maintenance of their proprietary rights in the Owned Intellectual Property
which is necessary for the conduct of the business of the Acquired Companies and
their respective subsidiaries as currently conducted.
(d) To the knowledge of Seller, as of the date of this Agreement, no third
party is infringing in any material respect a proprietary right of any Acquired
Company or a subsidiary of an Acquired Company in any Owned Intellectual
Property or Technology of the Acquired Companies and their respective
subsidiaries.
(e) In this Agreement:
"INTELLECTUAL PROPERTY" means any patent (including all reissues,
divisions, continuations and extensions thereof), patent application, trademarks
(including product and grade designations that serve to identify source and are
used in the Business of the applicable Acquired Company or subsidiary of an
Acquired Company as of the date of this Agreement), trademark registrations,
trademark applications, service marks, service xxxx registrations, service xxxx
applications, copyright registrations and copyright applications and all rights
in Internet domain name registrations.
"TECHNOLOGY" means any material trade secrets, inventions, know-how,
formulae, customer lists, software, manufacturing information and data in
whatever form, application, use and maintenance information and plans for
products, procedures and processes.
16
SECTION 2.09. CONTRACTS. (a) Except as set forth in Schedule 2.09 (and
other than (x) this Agreement and any Ancillary Agreement, (y) Contracts entered
into after the date of this Agreement in compliance with Section 5.01 and (z)
Contracts reflecting the commercial arrangements outlined in Schedule 5.17),
none of the Acquired Companies or any of their respective subsidiaries is a
party to or bound by any:
(i) employment agreement that has an aggregate annual liability for
salary and bonuses in excess of (euro)150,000;
(ii) (x) collective bargaining or collective labor agreement or (y)
other Contract with any labor union or any workers council or similar body
that confers pecuniary benefits to any employees of the Acquired Companies
or their respective subsidiaries;
(iii) covenant not to compete (other than (A) pursuant to any radius
restriction contained in any lease, reciprocal easement or development,
construction, operating or similar agreement and (B) any such covenant
contained in any distribution or sales representation agreement with a
distributor or sales representative, respectively) that materially limits
the conduct of the business of the Acquired Companies and their respective
subsidiaries, taken as a whole, as currently conducted;
(iv) (A) continuing Contract for the future purchase of materials,
supplies or equipment (other than purchase Contracts and orders for
inventory in the ordinary course of business), (B) management, service,
consulting or other similar Contract (other than Contracts for services in
the ordinary course of business) or (C) advertising agreement or
arrangement, in any such case which (x) has an aggregate future liability
to any person (other than the Acquired Companies or any of their respective
subsidiaries) in excess of (euro)150,000, (y) is not terminable by any of
the Acquired Companies or any of their respective subsidiaries by notice of
not more than 90 days for a cost of less than (euro)25,000 and (z) has a
residual term as of the date of this Agreement of more than 6 months;
17
(v) Contract under which one or more of the Acquired Companies or one
or more of their respective subsidiaries has borrowed, or may borrow under
committed credit lines, any money from, or issued any note, bond, debenture
or other evidence of indebtedness to, any person (other than the Acquired
Companies or any of their respective subsidiaries) or any other note, bond,
debenture or other evidence of indebtedness of one or more of the Acquired
Companies or one or more of their respective subsidiaries (other than in
favor of one or more of the Acquired Companies or one or more of their
respective subsidiaries) in any such case which, individually, is in excess
of (euro)70,000;
(vi) Contract (including so-called take-or-pay or keep well
agreements) under which (A) any person (other than the Acquired Companies
or any of their respective subsidiaries) has directly or indirectly
guaranteed indebtedness, liabilities or obligations of one or more of the
Acquired Companies or one or more of their respective subsidiaries or (B)
one or more of the Acquired Companies or one or more of their respective
subsidiaries has directly or indirectly guaranteed indebtedness,
liabilities or obligations of any person, other than the Acquired Companies
or any of their respective subsidiaries (in each case other than
endorsements for the purpose of collection in the ordinary course of
business), in any such case which, individually, is in excess of
(euro)70,000;
(vii) material Contract granting a Lien upon any Acquired Companies
Property, which Lien is not set forth in Schedule 2.07 or a Permitted Lien;
(viii) Contract (other than this Agreement) with (A) Seller or any of
its affiliates (other than the Acquired Companies or any of their
respective subsidiaries), other than purchase or sale orders for supplies
used in operations or for finished products in the ordinary course of
business or (B) any officer or director of an Acquired Company or a
subsidiary of an Acquired Company (other than the employment agreements
covered by clause (i) above);
(ix) lease, sublease or similar Contract with any person (other than
the Acquired Companies or any of their respective subsidiaries) under which
one or more
18
of the Acquired Companies or one or more of their respective subsidiaries
is a lessor or sublessor of, or makes available for use to any person
(other than the Acquired Companies or any of their respective
subsidiaries), (A) any Acquired Companies Property or (B) any portion of
any premises otherwise occupied by one or more of the Acquired Companies or
one or more of their respective subsidiaries that, in either case,
specifies annual payments in excess of (euro)40,000;
(x) lease, sublease or similar Contract with any person (other than
the Acquired Companies or any of their respective subsidiaries) under which
(A) one or more of the Acquired Companies or one or more of their
respective subsidiaries is a lessee of, or holds or uses, any machinery,
equipment, vehicle or other tangible personal property owned by any person
or (B) one or more of the Acquired Companies or one or more of their
respective subsidiaries is a lessor or sublessor of, or makes available for
use by any person, any tangible personal property owned or leased by an
Acquired Company or a subsidiary of an Acquired Company, in any such case
which lease or similar Contract specifies payments that on an annual basis
exceed (euro)100,000 and is not terminable by any of the Acquired Companies
or any of their respective subsidiaries by notice of not more than 90 days
for a cost of less than (euro)10,000;
(xi) joint venture, partnership or similar Contract providing for the
sharing of profits, losses, costs or liabilities between an Acquired
Company or a subsidiary of an Acquired Company and any other person (other
than another Acquired Company or subsidiary of an Acquired Company);
(xii) Contract providing for the hedging of risks relating to the
prices or level of currencies or interest rates;
(xiii) power of attorney that is effective and outstanding as of the
date of this Agreement (other than a power of attorney given in the
ordinary course of business with respect to routine Tax matters);
(xiv) order issued by a Governmental Entity which requires any of the
Acquired Companies and their
19
respective subsidiaries to make annual payments to such Governmental Entity
in excess of (euro)70,000, other than payments with respect to Taxes and
payments relating to social security contributions;
(xv) Contract with a distributor under which, in calendar year 2001,
the applicable Acquired Company or subsidiary delivered products for
payment in excess of (euro)150,000 in the aggregate; or
(xvi) other Contract that provides for total aggregate payments by an
Acquired Company or a subsidiary of an Acquired Company to any person
(other than the Acquired Companies or any of their respective subsidiaries)
of an amount in excess of (euro)250,000 and is not terminable by any of the
Acquired Companies or any of their respective subsidiaries by notice of not
more than 90 days for a cost of less than (euro)10,000 (other than purchase
orders, sales orders and distribution agreements with distributors).
(b) Except as set forth in Schedule 2.09, all Contracts required to be
listed in Schedule 2.09 and all license Contracts with respect to the Acquired
Companies Intellectual Property listed in Schedule 2.08 (such Contracts, the
"ACQUIRED COMPANIES CONTRACTS") to which one or more of the Acquired Companies
or one or more of their respective subsidiaries is a party are in all material
respects valid, binding and in full force and effect and are in all material
respects enforceable by the applicable Acquired Company or subsidiary of an
Acquired Company in accordance with their terms subject, as to enforcement, to
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally and to general equitable principles.
Except as set forth in Schedule 2.09, the Acquired Companies or their respective
subsidiaries have performed all material obligations required to be performed by
them to date under the Acquired Companies Contracts to which they are a party,
and they are not in material breach or material default thereunder and, to the
knowledge of Seller, no other party to any Acquired Companies Contract, as of
the date hereof, is in material breach or material default thereunder.
(c) Except as set forth in Schedule 2.09, to the knowledge of Seller, as of
the date of this Agreement, none of the Acquired Companies or their respective
subsidiaries
20
that is a party to an Acquired Companies Contract has given to its counterparty
notice of its intention or received written notice of a counterparty's intention
to terminate such Acquired Companies Contract.
(d) Seller has provided to Purchaser true and complete copies of (w) the
License Agreement dated as of April 29, 2002 (the "LICENSE AGREEMENT"), among
Valenite Inc., a Delaware corporation ("VALENITE"), and the Acquired Companies,
(x) the Supply Agreement dated as of April 29, 2002 (the "SUPPLY AGREEMENT"),
between Cimcool Industrial Products B.V., a company organized under the laws of
The Netherlands, and Widia GmbH, a company organized under the laws of the
Federal Republic of Germany ("WIDIA GERMANY"), (y) the Distribution Agreement
dated as of April 29, 2002 (the "WIDIA DISTRIBUTION AGREEMENT"), between
Valenite and Widia Germany, under which Widia Germany is appointed a distributor
of Valenite products and (z) the Distribution Agreement dated as of April 29,
2002 (the "VALENITE DISTRIBUTION AGREEMENT" and, collectively with the License
Agreement, the Supply Agreement and the Widia Distribution Agreement, the
"SEPARATION AGREEMENTS"), between Widia Germany and Valenite under which
Valenite is appointed a distributor of Widia Germany products. Each of the
Separation Agreements has been duly authorized, executed and delivered by each
of the parties thereto. Notwithstanding anything to the contrary in this
Agreement, none of the Separation Agreements shall constitute an Acquired
Companies Contract or an Ancillary Agreement for purposes of this Agreement.
SECTION 2.10. PERMITS. Except as set forth in Schedule 2.10, (i) all
material certificates, licenses, permits, authorizations and approvals from any
Governmental Entity ("PERMITS") are in all material respects validly held by one
or more of the Acquired Companies or one or more of their respective
subsidiaries, and each Acquired Company or subsidiary of an Acquired Company has
complied in all material respects with the terms and conditions of the Permits
held by such Acquired Company or subsidiary, (ii) during the past twelve months,
none of the Acquired Companies or any of their respective subsidiaries has
received written notice of any suit, action or proceeding relating to the
revocation or material modification of any such Permits held by it and (iii)
none of such Permits held by an Acquired Company or a subsidiary of an Acquired
Company would reasonably be expected to be subject to
21
suspension, material modification, revocation or nonrenewal as a result of the
execution and delivery of this Agreement or the consummation of the Acquisition.
This Section 2.10 does not relate to environmental matters, such matters being
the subject of Sections 2.14(b), 2.14(c) and 2.14(d).
SECTION 2.11. TAXES. (a) For purposes of this Agreement:
"CODE" shall mean the United States Internal Revenue Code of 1986, as
amended.
"INCOME TAX" or "INCOME TAXES" shall mean (i) all income, corporation,
trade, franchise, gains or similar Taxes imposed on or measured by income,
profits, gains or similar items (ii) all other Taxes reported on a Tax Return
that includes such Taxes and (iii) any interest, penalties and additions
associated with the amounts described in clauses (i) and (ii) hereof.
"PRE-CLOSING TAX PERIOD" shall mean all taxable periods ending on or before
the Closing Date and the portions of all Straddle Periods (as defined in Section
5.07(b)) ending on the Closing Date.
"TAX" or "TAXES" shall mean all forms of taxation imposed by any Taxing
Authority, including income, corporation, trade, franchise, property, sales,
use, excise, employment, unemployment, payroll, social security, estimated,
value-added, ad valorem, transfer, recapture, withholding and other taxes of any
kind, including any interest, penalties and additions thereto.
"TAXING AUTHORITY" shall mean the government of any country or any
political subdivision thereof, whether state or local, any agency, commission or
authority thereof or any quasi-governmental body exercising tax regulatory
authority.
"TAX RETURN" shall mean any report, return, document, declaration or other
information or filing required to be supplied to any Taxing Authority with
respect to Taxes, including any amendment made with respect thereto.
"TRANSFER TAXES" shall mean all sales (including bulk sales), use,
value-added, transfer, recording, ad valorem, privilege, documentary, gross
receipts,
22
registration, conveyance, excise, license, stamp or similar Taxes and fees
arising out of, in connection with or attributable to, the transactions
effectuated pursuant to this Agreement (other than the transactions contemplated
in Schedule 5.15).
(b) Except as set forth in Schedule 2.11(b), (i) each Acquired Company and
each of its subsidiaries has timely and properly filed or caused to be filed
(taking into account any applicable extension periods) all material Tax Returns
required to be filed by it, (ii) all Taxes shown as due and payable on such Tax
Returns have been timely paid in full or will be timely paid in full by the due
date thereof, (iii) there are no material liens for Taxes with respect to any of
the assets or properties of any Acquired Company or any of its subsidiaries,
except liens for (x) Taxes not yet due and payable and (y) Taxes to the extent
provided for in the Reference Statement and (iv) each Acquired Company and each
of its subsidiaries is in compliance in all material respects with all
Applicable Laws with respect to the procedures concerning the filing of Tax
Returns of such Acquired Company or subsidiary.
(c) Except as set forth in Schedule 2.11(c), no material Tax Return of any
Acquired Company or any of its subsidiaries is under audit by or with any Taxing
Authority, and, to the knowledge of Seller, no written notice of such an audit
has been received by any Acquired Company or any of its subsidiaries.
(d) The relevant statute of limitations is closed with respect to the
Federal Income Tax Returns required to be filed in the United States for the
years through 1996 for the consolidated group of which Parent was the common
parent as of December 31, 1999.
(e) The Acquired Companies and their respective subsidiaries own no real
property in the United States and conduct no trade or business in the United
States for purposes of the Code.
(f) To the knowledge of Seller, none of the Acquired Companies and their
respective subsidiaries has paid or received any payments that constitute hidden
profit distributions or constructive dividends.
23
(g) To the knowledge of Seller, as of the date of this Agreement, none of
the Acquired Companies and their respective subsidiaries has received any
written notice of any assessment by a Taxing Authority that will result in a
material change in the amount of Taxes owed by such Acquired Company or
subsidiary with respect to any Acquired Companies Property.
(h) As of December 31, 1998, Werkzeugfabrik GmbH, a company organized under
the laws of the Federal Republic of Germany ("WERKO"), had a net operating loss
carryforward of DM 125,500,427 for corporate taxes and DM 119,497,628 for trade
taxes. Subsequently, Werko merged into Widia Germany, and such merger did not
adversely affect the existence or amount of any such net operating loss
carryforward existing at the time of such merger. Neither Parent nor any of its
subsidiaries has taken any action that would adversely affect the ability of
Widia Germany to carry forward any net operating losses it may have in Germany,
except as a result of the absorption of such losses against income as permitted
under Applicable Law.
SECTION 2.12. LITIGATION. Except as set forth in Schedule 2.12(a), there is
no material suit or legal or governmental action (each suit or legal or
governmental action, whether or not material, a "PROCEEDING") pending or, to the
knowledge of Seller, threatened against any of the Acquired Companies or any of
their respective subsidiaries (in the case of a pending Proceeding, as to which
a complaint has been served on an Acquired Company or a subsidiary of an
Acquired Company) nor is there any Proceeding pursuant to which a person
challenges the validity of or seeks to prevent or delay the consummation of the
Acquisition. Except as set forth in Schedule 2.12(a), as of the date of this
Agreement, there is no Proceeding pending or, to the knowledge of Seller,
threatened against any of the Acquired Companies or any of their respective
subsidiaries (in the case of a pending Proceeding, as to which a complaint has
been served on an Acquired Company or a subsidiary of an Acquired Company) that
involves a product liability claim. Seller has delivered or made available to
Purchaser, or will deliver or make available to Purchaser prior to the Closing
Date, copies of all pleadings made as of the date of this Agreement by an
Acquired Company or a subsidiary of an Acquired Company in connection with each
pending Proceeding listed in Schedule 2.12(a).
24
(b) Except as set forth in Schedule 2.12(b):
(i) none of the Acquired Companies and their respective subsidiaries
is a party or subject to or in default under any unsatisfied material
Judgment; and
(ii) Seller is not a party or subject to or in default under any
unsatisfied material Judgment that primarily and specifically relates to
the business of an Acquired Company or a subsidiary of an Acquired Company;
(c) As of the date of this Agreement, except (x) as set forth in Schedule
2.12(c) and (y) for industrial actions or disputes relating to the Acquired
Companies' and their respective subsidiaries' industries in general and not
specifically to the Acquired Companies or their respective subsidiaries, (A)
there has not been any labor strike by any employees of the Acquired Companies
or their respective subsidiaries since January 1, 2001 and (B) since January 1,
2001, none of the Acquired Companies and their respective subsidiaries has
received written notice of any material collective labor dispute or material
collective grievance initiated by the employees of such Acquired Company or
subsidiary.
(d) This Section 2.12 does not relate to environmental matters,
Intellectual Property matters or Acquired Companies Benefit Plans matters, such
matters being the subject of Sections 2.14(b), 2.14(c) and 2.14(d), 2.08 and
2.13, respectively.
SECTION 2.13. ACQUIRED COMPANIES BENEFIT PLANS. (a) Schedule 2.13(a)
includes a list of each material employment, bonus, pension, profit sharing,
deferred compensation, incentive compensation, stock ownership, stock purchase,
phantom stock, performance, retirement, thrift, savings, stock bonus, paid time
off, perquisite, fringe benefit, vacation, severance, disability, death benefit,
hospitalization, medical, welfare benefit or other plan or program (other than a
plan, scheme or program mandatory under Applicable Law), in each case maintained
or contributed to, or required to be maintained or contributed to, by an
Acquired Company or a subsidiary of an Acquired Company for the benefit of any
present or former directors, officers or employees of an Acquired Company or a
subsidiary of an Acquired Company (all the foregoing plans and
25
programs, together with all such plans and programs of the other Acquired
Companies and their respective subsidiaries being herein called "ACQUIRED
COMPANIES BENEFIT PLANS"). Each Acquired Company and each subsidiary of an
Acquired Company has delivered or made available to Purchaser copies of (i) each
Acquired Companies Benefit Plan maintained or contributed to, or required to be
maintained or contributed to, by such Acquired Company or subsidiary and (ii)
all reports of any Acquired Companies Benefit Plan filed with any Governmental
Entity since January 1, 2000.
(b) Each Acquired Companies Benefit Plan maintained or contributed to, or
required to be maintained or contributed to, by an Acquired Company or a
subsidiary of an Acquired Company has been administered in all material respects
in accordance with its terms. Each Acquired Company and each of its subsidiaries
and all Acquired Companies Benefit Plans maintained or contributed to, or
required to be maintained or contributed to, by such Acquired Company or its
subsidiaries are in compliance in all material respects with Applicable Law.
There is no pending or, to the knowledge of Seller, threatened material
litigation relating to Acquired Companies Benefit Plans maintained or
contributed to, or required to be maintained or contributed to, by an Acquired
Company or a subsidiary of an Acquired Company.
(c) Except as set forth in Schedule 2.13(c), no employee of an Acquired
Company or any of its subsidiaries will be entitled to any additional benefits
or any acceleration of the time of payment or vesting of any benefits under any
Benefit Plan as a result of the transactions contemplated by this Agreement.
(d) Except as disclosed on, or reflected or reserved against in, the
Reference Statement or the Statement, none of the Acquired Companies and their
respective subsidiaries that have employees who are based in the Federal
Republic of Germany has any material obligations to any Governmental Entity
(including, the German Federal Labor Authority) with respect to any terminated
employees under Section 147(a) of the German Social Security Code III.
SECTION 2.14. COMPLIANCE WITH APPLICABLE LAWS. (a) Except as set forth in
Schedule 2.14(a), each Acquired Company and each of its subsidiaries is in
compliance in all material respects with all Applicable Laws. This
26
Subsection 2.14(a) does not relate to matters with respect to Taxes, which are
the subject of Section 2.11, to environmental matters, which are the subject of
Sections 2.14(b), 2.14(c) and 2.14(d), or to Acquired Companies Benefit Plans
matters, which are the subject of Section 2.13.
(b) Except as set forth in Schedule 2.14(b), (i) each Acquired Company and
each of its subsidiaries is in compliance in all material respects with all
Environmental Laws, (ii) each Acquired Company and each of its subsidiaries
possesses and is in compliance in all material respects with all Environmental
Permits required for the conduct of its operations, (iii) there are no current
or pending Proceedings against any of the Acquired Companies or any of their
respective subsidiaries alleging a violation of Environmental Law that would
result in a material liability of such Acquired Company or subsidiary, (iv)
there has been no Release of any Hazardous Materials by any of the Acquired
Companies or any of their respective subsidiaries (A) at any Owned or Leased
Property or (B) at any property formerly owned or operated by such Acquired
Company or subsidiary during the time period of ownership or operation of such
property by such Acquired Company or subsidiary, in each case, that would
reasonably be expected to result in a material liability of such Acquired
Company or subsidiary under any Environmental Law, (v) as of the date of this
Agreement, none of the Acquired Companies and their respective subsidiaries has
received any written notice (which is outstanding or which has not been
otherwise resolved) alleging any material violation of or material liability
under any Environmental Law, including any material liability with respect to
sites to which any of the Acquired Companies or any of their respective
subsidiaries has sent Hazardous Materials for storage, treatment or disposal,
(vi) there are no underground storage tanks containing Hazardous Materials
located at any Owned or Leased Property, except in compliance in all material
respects with Environmental Laws, (vii) no lien imposed by Environmental Laws
exists on any Owned or Leased Property and (viii) as of the date of this
Agreement, no portion of any Owned or Leased Property is the subject of any
current or pending cleanup, remediation, removal or similar response action
ordered by any Governmental Entity, or to the knowledge of Seller, any current
or pending investigation by any Governmental Entity, with respect to
contamination by any Hazardous Materials thereat.
27
(c) Except as set forth in Schedule 2.14(c), as of the date of this
Agreement, there are no Phase I or Phase II environmental site assessments with
respect to any Acquired Companies Property that have been commissioned by
Parent, Seller or any of the Acquired Companies and their respective
subsidiaries since January 1, 1999.
(d) For purposes of this Agreement:
"ENVIRONMENTAL LAWS" means any Applicable Law and any orders, decrees,
judgments or other binding agreements issued or entered into by any
Governmental Entity relating to pollution, the protection of the
environment or the management, generation or Release of Hazardous
Materials, in each case applicable to the relevant Acquired Company or the
relevant subsidiary of an Acquired Company.
"ENVIRONMENTAL PERMITS" means any permit, license, consent, approval
or other authorization by any Governmental Entity required pursuant to any
Environmental Law.
"HAZARDOUS MATERIALS" means petroleum and petroleum products
(including crude oil and any fractions thereof), asbestos or
asbestos-containing materials, urea formaldehyde foam insulation,
polychlorinated biphenyls, radon gas, radioactive substances or any other
material, substance or waste which otherwise is regulated by any
Environmental Law.
"RELEASE" means any spilling, leaking, pumping, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing into the
environment.
SECTION 2.15. FINANCIAL STATEMENTS; UNDISCLOSED LIABILITIES. Schedule 2.15A
sets forth the unaudited combined statement of net assets of the Acquired
Companies and their respective subsidiaries as of December 31, 2001 (the
"REFERENCE STATEMENT"), the unaudited combined statements of net assets of the
Acquired Companies and their respective subsidiaries as of December 31, 2000 and
1999 and the unaudited combined statements of operations of the Acquired
Companies and their respective subsidiaries for the twelve-month periods ended
December 31, 2001 and 2000 (such financial statements, the "FINANCIAL
STATEMENTS"). Except (x) for the absence of notes to the Financial Statements,
28
(y) for the absence of combined statements of cash flow of the Acquired
Companies and their respective subsidiaries and (z) as set forth in Schedule
2.15B, the Financial Statements have been prepared in conformity with United
States generally accepted accounting principles ("GAAP") utilizing customary
accounting policies and practices of the Acquired Companies and/or Parent or
Seller consistently applied and on that basis fairly present in all material
respects the financial condition and results of operations of the Acquired
Companies and their respective subsidiaries on a combined basis as of the
respective dates thereof and for the respective periods indicated. There are no
material liabilities (whether absolute, contingent or otherwise) of the Acquired
Companies and their respective subsidiaries of a nature required by GAAP to be
reflected on a combined balance sheet of the Acquired Companies and their
respective subsidiaries, except (i) as disclosed on, or reflected or reserved
against in, the Reference Statement, (ii) as set forth in Schedule 2.15B, (iii)
for items set forth in Schedule 2.15C, (iv) as required to be disclosed on, or
reflected or reserved against in, the Statement in accordance with the
provisions of Section 1.04 (including Schedule 1.04(a)) and (v) for Taxes. This
representation shall not be deemed breached as a result of a change in law or
GAAP after the Closing Date.
SECTION 2.16. ABSENCE OF CHANGES OR EVENTS. Except as set forth in Schedule
2.16, since the date of the Reference Statement there has not been an Acquired
Companies Material Adverse Effect. Purchaser acknowledges that there may be
disruption to the Acquired Companies' and their respective subsidiaries'
business as a result of the execution of this Agreement and the consummation of
the transactions contemplated hereby, and Purchaser agrees that any such
disruption does not and shall not constitute a breach of this Section 2.16.
Except as set forth in Schedule 2.16, from the date of the Reference Statement
to the date of this Agreement, the Acquired Companies and their respective
subsidiaries have not taken any action that, if taken after the date of this
Agreement, would constitute a breach of Section 5.01(a).
SECTION 2.17. SUFFICIENCY OF ASSETS. Assuming Purchaser has the ability to
provide to the Acquired Companies and their respective subsidiaries all services
and access to capital currently provided to them by Parent and its subsidiaries
(other than the Acquired Companies and
29
their respective subsidiaries), the assets owned or leased by the Acquired
Companies and their respective subsidiaries, together with the commercial
arrangements outlined in Schedule 5.17, the Separation Agreements and the rights
of Purchaser and its affiliates under this Agreement and any Ancillary
Agreements, are sufficient to conduct, immediately following the Closing, the
business of the Acquired Companies and their respective subsidiaries as it is
currently being conducted.
SECTION 2.18. ACQUIRED COMPANIES INSURANCE. As of the date of this
Agreement, none of the Acquired Companies and their respective subsidiaries has
received, since January 1, 2001, any written notice of cancellation or
nonrenewal with respect to any Acquired Companies Insurance Policy (as defined
in Section 5.01(b)) which has not been replaced on substantially similar terms
prior to the date of such cancellation and all premiums due and payable thereon
have been paid (other than any retroactive or retrospective premium adjustments
that are not yet, but may be, required to be paid with respect to any period
ending prior to the date hereof). Each of the Acquired Companies and their
respective subsidiaries has complied in all material respects with the
provisions of the Acquired Companies Insurance Policies applicable to such
person.
SECTION 2.19. EURO-AFFECTED PRODUCTS AND SERVICES. The software and
hardware systems of the Acquired Companies and their respective subsidiaries
that are organized in a member state of the European Union that has adopted the
euro are capable of processing transactions in euro.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to Purchaser as of the date hereof
and as of the Closing Date, except to the extent any such representation or
warranty expressly relates to an earlier date (in which case such representation
or warranty shall be made solely as of such earlier date), as follows:
30
SECTION 3.01. ORGANIZATION AND STANDING. Parent is validly existing and in
good standing under the laws of the State of Delaware.
SECTION 3.02. AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY. Parent has
full corporate power and authority to execute this Agreement and the Ancillary
Agreements to which it is, or is specified to be, a party and to perform its
obligations under this Agreement and such Ancillary Agreements. Parent has taken
all corporate action required by its Restated Certificate of Incorporation and
By-laws, as amended to the date of this Agreement, to authorize the execution
and delivery of this Agreement and the Ancillary Agreements to which it is, or
is specified to be, a party and to authorize the performance of its obligations
under this Agreement and such Ancillary Agreements. Parent has duly executed and
delivered this Agreement and prior to the Closing will have duly executed and
delivered each Ancillary Agreement to which it is, or is specified to be, a
party, and this Agreement constitutes, and each Ancillary Agreement to which it
is, or is specified to be, a party will after the Closing constitute, its legal,
valid and binding obligation, enforceable against it in accordance with its
terms subject, as to enforcement, to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting creditors' rights generally
and to general equitable principles.
SECTION 3.03. NO CONFLICTS OR VIOLATIONS; NO CONSENTS OR APPROVALS
REQUIRED. Except as set forth in Schedule 3.03, the execution and delivery by
Parent of this Agreement do not, the execution and delivery by Parent of each
Ancillary Agreement to which it is, or is specified to be, a party will not, and
the performance of its obligations under this Agreement and each Ancillary
Agreement to which it is, or is specified to be, a party will not conflict with,
or result in any breach of or constitute a default under, or result in the
creation of any Lien upon any of the properties or assets of Parent under, any
provision of (i) its Restated Certificate of Incorporation or By-laws, as
amended to the date of this Agreement, (ii) any Contract, to which Parent is a
party or by which any of its properties or assets is bound or (iii) any Judgment
or Applicable Law applicable to Parent, other than, in the case of clauses (ii)
and (iii) above, any such items that would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
ability of Parent to
31
perform its obligations under this Agreement and the Ancillary Agreements to
which it is, or is specified to be, a party (a "PARENT MATERIAL ADVERSE
EFFECT"). No Consent of, or registration, declaration or filing with, any
Governmental Entity, is required to be obtained or made by or with respect to
Parent in connection with the execution, delivery and performance of this
Agreement and each Ancillary Agreement to which it is, or is specified to be, a
party other than (A) compliance with and filings under the competition laws or
regulations of the Federal Republic of Germany and any other applicable
competition, antitrust or similar laws or regulations, (B) compliance with, and
any filings, notifications and completion of any public offer requirements
under, the securities laws of India and the rules and regulations of SEBI
promulgated thereunder, (C) compliance with and filings and notifications under
applicable Environmental Laws, (D) those that may be required solely by reason
of Purchaser's (as opposed to any other third party's) participation in the
Acquisition and the other transactions contemplated hereby and by the Ancillary
Agreements and (E) those the failure of which to obtain or make would not,
individually or in the aggregate, reasonably be expected to have a Parent
Material Adverse Effect.
SECTION 3.04. PARENT BENEFIT PLANS. (a) Schedule 3.04 includes a list of
each material "employee pension benefit plan" (as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (a
"PENSION PLAN"), material "employee welfare benefit plan" (as defined in Section
3(1) of ERISA) (a "WELFARE PLAN") and each other material employment, bonus,
pension, profit sharing, deferred compensation, incentive compensation, stock
ownership, stock purchase, phantom stock, performance, retirement, thrift,
savings, stock bonus, paid time off, perquisite, fringe benefit, vacation,
severance, disability, death benefit, hospitalization, medical, welfare benefit
or other plan or program, in each case, maintained or contributed to, by Parent
or any of its subsidiaries (other than solely by the Acquired Companies or any
of their respective subsidiaries) for the benefit of any present or former
directors, officers or employees of any of the Acquired Companies or any of
their respective subsidiaries (all the foregoing being herein called "PARENT
BENEFIT PLANS"). Parent has delivered or made available to Purchaser copies of
each Parent Benefit
32
Plan maintained or contributed to, or required to be maintained or contributed
to, by Parent.
(b) Each Parent Benefit Plan has been administered in accordance with its
terms, except where the failure so to be administered would not, individually or
in the aggregate, reasonably be expected to have an Acquired Companies Material
Adverse Effect. Each Parent Benefit Plan is in compliance with Applicable Law,
except for instances of noncompliance that would not, individually or in the
aggregate, reasonably be expected to have an Acquired Companies Material Adverse
Effect. There is no pending or, to the knowledge of Parent, threatened
litigation relating to Parent Benefit Plans, except for such litigation that
would not, individually or in the aggregate, reasonably be expected to have an
Acquired Companies Material Adverse Effect.
SECTION 3.05. INSURANCE. (a) Except as set forth in Schedule 3.05, as of
the date of this Agreement, neither Parent nor Seller has received, since
January 1, 2001, any written notice of cancellation or nonrenewal of any Group
Insurance Policy (as defined in Section 5.01(b)) which has not been replaced on
substantially similar terms prior to the date of such cancellation and all
premiums due and payable thereon have been paid (other than any retroactive or
retrospective premium adjustments that are not yet, but may be, required to be
paid with respect to any period ending prior to the date hereof). To the
knowledge of Parent, each of Parent and Seller has complied with the provisions
of the Group Insurance Policies applicable to such person, except for any such
noncompliance that would not, individually or in the aggregate, reasonably be
expected to have an Acquired Companies Material Adverse Effect.
(b) In Parent's judgment, the Insurance Policies (as defined in Section
5.01(b)) are maintained in such amounts, with such deductibles and against such
risks and losses as are reasonable for the business and assets of the Acquired
Companies and their respective subsidiaries.
33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as of the date hereof
and as of the Closing Date, except to the extent any such representation or
warranty expressly relates to an earlier date (in which case such representation
or warranty shall be made solely as of such earlier date), as follows:
SECTION 4.01. ORGANIZATION AND STANDING. Purchaser is validly existing and
in good standing under the laws of the jurisdiction in which it is organized and
has full corporate power and authority and possesses all governmental
franchises, licenses, permits, authorizations and approvals necessary to enable
it to own, lease or otherwise hold its properties and assets and to carry on its
business as currently conducted, other than such franchises, licenses, permits,
authorizations and approvals the lack of which would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
ability of Purchaser to consummate the Acquisition (a "PURCHASER MATERIAL
ADVERSE EFFECT").
SECTION 4.02. AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY. Purchaser
has full corporate power and authority to execute this Agreement and the
Ancillary Agreements to which it is, or is specified to be, a party and to
consummate the Acquisition and the other transactions contemplated hereby and
thereby (other than the transactions contemplated in Schedule 5.15). Purchaser
has taken all corporate action required by its Organizational Documents to
authorize the execution and delivery of this Agreement and the Ancillary
Agreements to which it is, or is specified to be, a party and to authorize the
consummation of the Acquisition and the other transactions contemplated hereby
and thereby (other than the transactions contemplated in Schedule 5.15).
Purchaser has duly executed and delivered this Agreement and prior to the
Closing will have duly executed and delivered each Ancillary Agreement to which
it is, or is specified to be, a party, and this Agreement constitutes, and each
Ancillary Agreement to which it is, or is specified to be, a party will after
the Closing constitute, its legal, valid and binding obligation, enforceable
against it in accordance with its terms subject, as to enforcement, to
applicable bankruptcy, insolvency,
34
moratorium, reorganization or similar laws affecting creditors' rights generally
and to general equitable principles.
SECTION 4.03. NO CONFLICTS OR VIOLATIONS; NO CONSENTS OR APPROVALS
REQUIRED. The execution and delivery by Purchaser of this Agreement do not, the
execution and delivery by Purchaser of each Ancillary Agreement to which it is,
or is specified to be, a party will not, and the consummation of the Acquisition
and the other transactions contemplated hereby and thereby (other than the
transactions contemplated in Schedule 5.15) will not conflict with, or result in
any breach of or constitute a default under, or result in the creation of any
Lien upon any of the properties or assets of Purchaser or any of its
subsidiaries under, any provision of (i) the Organizational Documents of
Purchaser or any of its subsidiaries, (ii) any Contract to which Purchaser or
any of its subsidiaries is a party or by which any of their respective
properties or assets is bound or (iii) any Judgment or Applicable Law applicable
to Purchaser or any of its subsidiaries or their respective properties or
assets, other than, in the case of clauses (ii) and (iii) above, any such items
that would not, individually or in the aggregate, reasonably be expected to have
a Purchaser Material Adverse Effect. No Consent of, or registration, declaration
or filing with, any Governmental Entity is required to be obtained or made by or
with respect to Purchaser or any of its subsidiaries in connection with the
execution, delivery and performance of this Agreement or the consummation of the
Acquisition and the other transactions contemplated by this Agreement (other
than the transactions contemplated in Schedule 5.15) other than (A) compliance
with and filings under the competition laws or regulations of the Federal
Republic of Germany and any other applicable competition, antitrust or similar
laws or regulations, (B) compliance with, any filings, notifications and
completion of any public offer requirements under, the securities laws of India
and the rules and regulations of SEBI promulgated thereunder, (C) compliance
with and filings and notifications under applicable Environmental Laws, (D)
those that may be required solely by reason of Seller's (as opposed to any third
party's) participation in the Acquisition and the other transactions
contemplated hereby and by the Ancillary Agreements and (E) those the failure of
which to obtain or make would not, individually or in the aggregate, reasonably
be expected to have a Purchaser Material Adverse Effect.
35
SECTION 4.04. PROCEEDINGS. There are not any (a) Proceedings pending or, to
the knowledge of Purchaser, threatened against Purchaser or any of its
subsidiaries, (b) investigations by any Governmental Entity that are pending or,
to the knowledge of Purchaser, threatened against Purchaser or any of its
subsidiaries or (c) any outstanding Judgments against Purchaser or any of its
subsidiaries that, in any such case, would, individually or in the aggregate,
reasonably be expected to have a Purchaser Material Adverse Effect.
SECTION 4.05. SECURITIES ACT. The Shares purchased by Purchaser pursuant to
this Agreement are being acquired for investment only and not with a view to any
public distribution thereof, and Purchaser shall not offer to sell or otherwise
dispose of, or sell or otherwise dispose of, the Shares so acquired by it in
violation of any of the registration requirements of the Securities Act of 1933,
as amended.
SECTION 4.06. AVAILABILITY OF FUNDS. Purchaser has cash available or has
existing borrowing facilities which together are sufficient to enable it to
consummate the Acquisition and the other transactions contemplated by this
Agreement and each Ancillary Agreement. Copies of any such facilities have been
provided or made available to Seller. The financing required to consummate the
Acquisition and the other transactions contemplated by this Agreement (other
than the transactions contemplated in Schedule 5.15) is referred to in this
Agreement collectively as the "FINANCING". As of the date of this Agreement,
Purchaser does not have any reason to believe that any of the conditions to the
Financing will not be satisfied or that the Financing will not be available to
Purchaser on a timely basis to consummate the Acquisition and the other
transactions contemplated by this Agreement.
ARTICLE V
COVENANTS
SECTION 5.01. COVENANTS RELATING TO CONDUCT OF BUSINESS. (a) Except for
matters (x) set forth in Schedule 5.01(a), (y) expressly agreed to by Purchaser
or (z) otherwise contemplated by the terms of this Agreement, from the date of
this Agreement to the Closing Date, Seller
36
shall cause the Acquired Companies and their respective subsidiaries to conduct
their respective businesses in the ordinary course in a manner consistent with
past practice and, to the extent consistent therewith, use commercially
reasonable efforts to preserve their material business relationships with
customers, suppliers, distributors and others with whom they deal in the
ordinary course of business. In addition, except as set forth in Schedule
5.01(a) or otherwise contemplated by the terms of this Agreement, Seller shall
not cause any of the Acquired Companies or any of their respective subsidiaries
to do any of the following without the prior written consent of Purchaser (which
consent shall not be unreasonably withheld or delayed):
(i) amend its articles of association or other comparable
Organizational Documents;
(ii) declare or pay any dividend or make any other distribution to its
shareholders whether or not upon or in respect of any shares of its capital
stock; PROVIDED, HOWEVER, that (A) at any time prior to the close of
business on the Closing Date, Seller will be allowed to withdraw or cause
to be withdrawn any cash balances of the Acquired Companies and their
respective subsidiaries, (B) dividends and distributions may continue to be
made by the subsidiaries of each Acquired Company to such Acquired Company
or to other wholly owned subsidiaries of such Acquired Company and (C)
dividends and distributions of cash and cash equivalents may continue to be
made by (x) the Acquired Companies to Seller and (y) Widia India to its
shareholders;
(iii) redeem or otherwise acquire any shares of its capital stock or
issue any capital stock (except upon the exercise of outstanding options)
or any option, warrant or right relating thereto or any securities
convertible into or exchangeable for any shares of capital stock;
(iv) adopt or amend in any material respect any Acquired Companies
Benefit Plan maintained or contributed to, or required to be maintained or
contributed to, by an Acquired Company or a subsidiary of an Acquired
Company in respect of any Affected Employee (as defined in Section 5.06(a))
or Former
37
Employee (as defined in Section 5.06(d)), except as required by Applicable
Law;
(v) grant to any executive officer or other key employee of an
Acquired Company or a subsidiary of an Acquired Company any increase in
compensation or benefits, except in the ordinary course of business
consistent with past practice or as may be required under existing
agreements and except for any increases or bonuses for which Seller shall
be solely obligated;
(vi) incur or assume any liabilities, obligations or indebtedness for
borrowed money or guarantee any such liabilities, obligations or
indebtedness, other than in the ordinary course of business consistent with
past practice;
(vii) subject any of the assets owned by an Acquired Company or a
subsidiary of an Acquired Company as of the date of this Agreement to any
Lien of any nature whatsoever that would have been required to be set forth
in Schedule 2.06 or 2.07 if existing on the date of this Agreement;
(viii) waive any claims or rights of material value;
(ix) make any change in any method of accounting or accounting
practice or policy other than those required or permitted by GAAP or
required by Applicable Law;
(x) acquire by merging or consolidating with, or by purchasing all or
a substantial portion of the assets of, or by any other manner, any
business or any corporation, partnership, association or other business
organization or division thereof or otherwise acquire any assets (other
than inventory) that are material to the Acquired Companies and their
respective subsidiaries, taken as a whole;
(xi) make or incur any capital expenditure, other than capital
expenditures (A) set forth in Schedule 5.01(a)(xi) or (B) which,
individually, is not in excess of (euro)50,000;
38
(xii) sell, lease, license or otherwise dispose of any asset that is
material to the Acquired Companies and their respective subsidiaries, taken
as a whole, except (A) inventory and obsolete or excess equipment or
machinery sold or disposed of in the ordinary course of business, (B)
leases set forth in Schedule 5.01(a)(xii) and (C) sales, leases, licenses
or other disposals of assets to an Acquired Company or a subsidiary of an
Acquired Company;
(xiii) enter into any lease, or renew any existing lease, of real
property, except (A) any lease or renewal of lease set forth in Schedule
5.01(a)(xiii) and (B) any lease, or renewal of lease, which, individually,
provides for rental payments not in excess of (euro)50,000 for the term of
such lease or renewal;
(xiv) (A) terminate the Receivables Agreement dated as of December 27,
2001 (the "RECEIVABLES AGREEMENT") among Widia India, ICICI Bank of India
and HDFC Bank or (B) amend or otherwise modify the Receivables Agreement in
a way that would reasonably be expected to have a material adverse effect
on the financial condition of Widia India;
(xv) settle or compromise any suit, other than the WIS Litigation (as
defined in Schedule 2.12) in accordance with the Settlement Agreement (as
defined below), or other litigation matter or matter constituting the
subject matter of an arbitration proceeding on terms which would require
Purchaser to take any action, assume any liability or forego any right;
(xvi) terminate, amend or otherwise modify any of the Separation
Agreements;
(xvii) terminate, amend or otherwise modify the Settlement Agreement
or the Share Purchase Agreement (as defined below), in each case, on terms
which would require Purchaser to take any action, assume any liability or
forego any right; or
(xviii) agree, whether in writing or otherwise, to do any of the
foregoing.
39
(b) Parent and Seller shall keep all insurance policies currently
maintained by Seller or Parent, as applicable, with respect to the Acquired
Companies and their respective subsidiaries and their respective assets and
properties (the "GROUP INSURANCE POLICIES"), or suitable replacements therefor,
in full force and effect through the close of business on the Closing Date; it
being understood that any and all Group Insurance Policies are owned and
maintained by Parent, Seller and their respective affiliates (other than the
Acquired Companies and their respective subsidiaries) and none of Purchaser, the
Acquired Companies or their respective subsidiaries will have any rights under
such insurance policies from and after the Closing Date. Seller shall cause to
be kept all insurance policies currently maintained by the Acquired Companies
and their respective subsidiaries with respect to themselves and their
respective assets and properties (the "ACQUIRED COMPANIES INSURANCE POLICIES"
and, together with the Group Insurance Policies, the "INSURANCE POLICIES"), or
suitable replacements therefor, in full force and effect through the close of
business on the Closing Date. Purchaser acknowledges that, subsequent to the
Closing, neither Seller nor Parent shall have any responsibility to maintain, or
cause to be maintained, in full force and effect any of the Insurance Policies
or obtain any suitable replacement therefor covering any loss, liability, claim,
damage or expense of the Acquired Companies or any of their respective
subsidiaries.
SECTION 5.02. ACCESS TO INFORMATION. Seller shall cause the Acquired
Companies and their respective subsidiaries to afford, to the extent permitted
under Applicable Law, to Purchaser and its accountants, counsel and other
representatives reasonable access, upon reasonable notice during normal business
hours during the period prior to the Closing, to the personnel, properties,
books, Contracts, commitments and records of the Acquired Companies and their
respective subsidiaries (such reasonable access to include (x) the delivery of
monthly unaudited combined statements of net assets and monthly unaudited
combined statements of operations, in each case, of the Acquired Companies and
their respective subsidiaries, similar to the ones for January 2002, February
2002 and March 2002 made available to Purchaser prior to the date of this
Agreement and (y) the provision to a special transition team of Purchaser
comprised of the individuals set forth in Schedule 5.02 of office space and
support at the Essen
40
facility of Widia Germany); PROVIDED, HOWEVER, that such access does not
unreasonably disrupt the normal operations of the Acquired Companies and their
respective subsidiaries.
SECTION 5.03. CONFIDENTIALITY. Purchaser acknowledges that the information
being provided to it in connection with the Acquisition and the consummation of
the other transactions contemplated hereby is subject to the terms of a
confidentiality agreement between Purchaser and Parent (the "CONFIDENTIALITY
AGREEMENT"), the terms of which are incorporated herein by reference. Effective
upon, and only upon, the Closing, the Confidentiality Agreement shall terminate
with respect to information relating solely to the Acquired Companies and their
respective subsidiaries; PROVIDED, HOWEVER, that Purchaser acknowledges that any
and all other information provided to it by Parent, Seller or their respective
representatives concerning Parent, Seller or any of their respective
subsidiaries (other than the Acquired Companies and any of their respective
subsidiaries) shall remain subject to the terms and conditions of the
Confidentiality Agreement after the Closing Date.
SECTION 5.04. REASONABLE BEST EFFORTS. (a) On the terms and subject to the
conditions of this Agreement, each party shall use its reasonable best efforts
to cause the Closing to occur, including taking all actions and doing all things
necessary to comply promptly with all legal requirements that may be imposed on
it or any of its affiliates with respect to the Closing and cooperating with the
other party to that end. Each of Seller and Purchaser shall not, and shall not
permit any of their respective affiliates to, take any actions that would, or
that could reasonably be expected to, result in any of the conditions set forth
in Article VI not being satisfied.
(b) Without limiting Section 5.04(a), each of Seller and Purchaser shall
use reasonable best efforts to prepare all documentation, to effect all filings
and to obtain all Consents and Permits of all Governmental Entities necessary to
consummate the Acquisition as promptly as practicable following the execution
and delivery of this Agreement. Each of Parent, Seller and Purchaser agrees that
it will consult with the other with respect to obtaining the Consents and
Permits referred to in the immediately preceding sentence and will keep each
other apprised of the status of material matters relating to the consummation of
the Acquisition. For purposes of this Section 5.04, the
41
"reasonable best efforts" of Purchaser shall include promptly opposing any
motion or action for a temporary, preliminary or permanent injunction against
the Acquisition, but shall not require Purchaser or its affiliates to (x) enter
into a consent decree or (y) commit, in each case, to hold separate or divest
any products and assets of any of the Acquired Companies and any of their
respective subsidiaries or Purchaser and its affiliates, as the case may be, as
may be required by any Governmental Entity.
(c) Purchaser acknowledges that certain consents and waivers with respect
to the transactions contemplated by this Agreement may be required from parties
to Contracts to which an Acquired Company or a subsidiary of an Acquired Company
is a party and that such consents and waivers have not been obtained. Purchaser
agrees that Seller and its affiliates shall not have any liability whatsoever to
Purchaser arising out of or relating to the failure to obtain any consents or
waivers that may be required in connection with the transactions contemplated by
this Agreement or because of the termination of any Contract as a result
thereof. Purchaser further agrees that no representation, warranty or covenant
of Seller contained herein shall be breached or deemed breached, and no
condition shall be deemed not satisfied, as a result of (i) the failure to
obtain any such consent or waiver, (ii) any such termination or (iii) any
lawsuit, action, proceeding or investigation commenced or threatened by or on
behalf of any person arising out of or relating to the failure to obtain any
such consent or any such termination. Prior to the Closing, Seller shall, and
shall cause each of the Acquired Companies and each subsidiary of an Acquired
Company to, cooperate with Purchaser, upon the request of Purchaser, in any
reasonable manner in connection with Purchaser obtaining any such consents and
waivers; PROVIDED, HOWEVER, that such cooperation shall not include any
requirement of Seller or any of its affiliates (including the Acquired Companies
and their respective subsidiaries) to expend money, commence, defend or
participate in any litigation or offer or grant any accommodation (financial or
otherwise) to any third party. Notwithstanding anything to the contrary in this
Section 5.04(c), on or prior to the Closing Date, Seller shall have caused to be
terminated all obligations of Milacron Germany under the Credit Agreement (as
defined in Schedule 2.04 hereto).
42
SECTION 5.05. BROKERS OR FINDERS. Each of Purchaser, Parent and Seller
represents, as to itself and its affiliates, that no agent, broker, investment
banker or other firm or person is or will be entitled to any broker's or
finder's fee or any other commission or similar fee in connection with any of
the transactions contemplated by this Agreement, except, as to Parent and
Seller, Credit Suisse First Boston Corporation, whose fees and expenses will be
paid by Parent and, as to Purchaser and its affiliates, Xxxxxx Brothers, Inc.,
whose fees and expenses will be paid by Purchaser.
SECTION 5.06. EMPLOYEE MATTERS. (a) GENERAL OBLIGATION. On and after
the Closing Date, Purchaser shall cause each of the Acquired Companies and their
respective subsidiaries to comply with the terms of all applicable provisions of
governing trust deeds and rules, existing employee agreements, agreements with
workers councils or similar bodies, collective bargaining and collective labor
agreements and any other contractual commitments relating to any Affected
Employee (collectively, the "EMPLOYMENT REGULATIONS") to which an Acquired
Company or a subsidiary of an Acquired Company is a party or by which it is
bound. In addition, on and after the Closing Date, Purchaser shall cause each of
the Acquired Companies and their respective subsidiaries to comply with all
Applicable Laws relating to the employment of the Affected Employees. For
purposes of this Agreement, "AFFECTED EMPLOYEE" means each individual who is
employed by an Acquired Company or a subsidiary of an Acquired Company on the
Closing Date, including any such individuals on approved leave of absence
(including maternity and paternity leave, vacation, sick leave, short-term or
long-term disability, military leave, jury duty and death leave).
(b) CONTINUATION OF BENEFITS. For the twelve-month period immediately
following the Closing Date, Purchaser shall cause each of the Acquired Companies
and their respective subsidiaries to continue to provide to the Affected
Employees benefits that are no less favorable in the aggregate than those
benefits provided to such employees under the Employment Regulations in effect
immediately prior to the Closing Date; PROVIDED, HOWEVER, that nothing in this
Agreement shall be deemed to obligate Purchaser to continue the employment of
any Affected Employee following the Closing Date, except as required by any
Employment Regulation or Applicable Law.
43
(c) SEVERANCE. Notwithstanding anything to the contrary in this
Agreement, Purchaser shall cause each of the Acquired Companies and their
respective subsidiaries to provide each Affected Employee whose employment is
terminated by Purchaser or its subsidiaries during the twelve-month period
immediately following the Closing Date with severance benefits that are no less
favorable in the aggregate than those provided to Affected Employees under the
severance benefit plans, programs, policies, agreements and arrangements of the
Acquired Companies and their respective subsidiaries in effect immediately prior
to the Closing Date.
(d) CERTAIN WELFARE BENEFIT MATTERS. Purchaser shall assume, honor and
become solely responsible for payment of all liabilities (including all premiums
and administrative costs) and performance of all other obligations of Parent,
Seller and their respective subsidiaries under any welfare benefit plans of such
persons in respect of all medical, dental, life insurance and other welfare
benefit claims (including, short-term and long-term disability benefits)
incurred on or prior to the Closing Date by or for Affected Employees and former
employees of the Acquired Companies and their respective subsidiaries, other
than (x) employees transferred to subsidiaries of Parent, other than the
Acquired Companies and their respective subsidiaries, prior to the Closing Date
in connection with the transactions contemplated in Schedule 5.15 and (y) former
employees of the business divisions transferred to subsidiaries of Parent, other
than the Acquired Companies and their respective subsidiaries as contemplated in
Schedule 5.15 (each such former employee, individually, a "FORMER EMPLOYEE").
(e) ADMINISTRATION. Following the date of this Agreement, Seller,
Parent and Purchaser shall reasonably cooperate in all matters reasonably
necessary to effect the transactions contemplated by this Section 5.06,
including, to the extent permitted by Applicable Law, exchanging information and
data relating to workers compensation, employee benefits and employee benefit
plan coverages, and in obtaining any governmental approvals required hereunder.
SECTION 5.07. TAX MATTERS. (a) PRE-CLOSING TAX PERIOD TAX RETURNS. (i)
As to all Tax Returns of the Acquired Companies and their respective
subsidiaries due on or before the Closing Date, Seller shall properly prepare
44
and timely file such Returns and pay Taxes shown as due thereon.
(ii) As to Income Tax Returns of the Acquired Companies and their
respective subsidiaries due after the Closing Date for tax periods ending on or
before the Closing Date, Purchaser shall cause each Acquired Company and its
subsidiaries to prepare and timely file such Returns in accordance with past
practice; PROVIDED, HOWEVER, that (1) Purchaser shall deliver any such Return to
Seller at least 20 business days before it is due, except for any such Return
due within 30 business days after the Closing Date, which shall be delivered to
Seller as soon as commercially practicable prior to the date such Return is due,
(2) Seller shall have the discretion to approve or modify such Return by notice
given at least 5 business days before such Return is due, except for any such
Return due within 30 business days after the Closing Date, in which case such
approval or modification shall be delivered as soon as commercially practicable
prior to the date such Return is due; PROVIDED that such Return shall be subject
to the consent of Purchaser, which shall not be unreasonably withheld or
delayed, and in no event shall be withheld or delayed if such Return is
consistent with the Statement, (3) such Return shall be filed (as so approved or
modified) on a timely basis by each Acquired Company or its subsidiaries, as
applicable, and (4) to the extent that such Income Taxes were not accrued in the
Statement and therefore not accounted for in the Adjusted Purchase Price, Seller
shall reimburse Purchaser the amount shown to be due on the final version of any
such return, after taking into account any credits or net operating loss
carry-forwards, prior to the filing thereof.
(iii) As to Tax Returns (other than Income Tax Returns) of the
Acquired Companies and their respective subsidiaries due after the Closing Date
for tax periods ending on or before the Closing Date, Purchaser shall cause each
Acquired Company and its subsidiaries to prepare and timely file such Returns;
PROVIDED, HOWEVER, that (1) Purchaser shall deliver any such Return to Seller at
least 20 business days before it is due, except for any such Return due within
30 business days after the Closing Date, which shall be delivered to Seller as
soon as commercially practicable prior to the date such Return is due, (2)
Seller shall have sole discretion to approve or modify such Return by notice
given at least 5 business days before such Return
45
is due, except for any such Return due within 30 business days after the Closing
Date, in which case such approval or modification shall be delivered as soon as
commercially practicable prior to the date such Return is due, (3) such Return
shall be filed (as so approved or modified) on a timely basis by each Acquired
Company or its subsidiaries, as applicable, and (4) Seller shall reimburse
Purchaser for any amount owed by Seller with respect to such Return in
accordance with Section 8.02(xi).
(iv) Any dispute between the parties under this Section 5.07(a) shall
be resolved by the Independent Expert under the principles of Section
1.04(b)(2), except that every effort shall be made by the parties and the
Independent Expert to resolve the dispute prior to the due date for the
applicable Tax Return.
(b) STRADDLE PERIOD TAX RETURNS. (i) As to any Tax Return of the
Acquired Companies and their respective subsidiaries for a tax period that
begins before and ends after the Closing Date (a "STRADDLE PERIOD"), Purchaser
shall cause any applicable Acquired Company and its subsidiaries to prepare and
timely file such Return and pay all Taxes due with respect thereto; PROVIDED,
HOWEVER, that (1) Purchaser shall deliver any such Return to Seller at least 20
business days before it is due, except for any such Return due within 30
business days after the Closing Date, which shall be delivered to Seller as soon
as commercially practicable prior to the date such Return is due, (2) Seller
shall have the right to examine and comment on any such Return prior to the
filing thereof, and such Return will not be filed without the prior written
consent of Seller, which consent shall not be unreasonably withheld or delayed,
(3) Seller shall either provide such written consent or notice of objection no
later than 5 business days before the Return is due, except for any such Return
due within 30 business days after the Closing Date, in which case such written
consent or notice of objection shall be delivered as soon as commercially
practicable, and (4) Seller shall reimburse Purchaser for any amount owed by
Seller with respect to such Return in accordance with Section 8.01 or Section
8.02(xi).
(ii) All Tax Returns for any tax period that includes the Closing Date
shall be filed on the basis that the relevant tax period ended as of the close
of business on the Closing Date (and thus that Section 5.07(b)(i) does not
46
apply), unless such a Tax Return would be clearly contrary to Applicable Law.
(iii) Any dispute between the parties under this Section 5.07(b) shall
be resolved by the Independent Expert under the principles of Section
1.04(b)(2), except that every effort shall be made by the parties and the
Independent Expert to resolve the dispute prior to the due date for the
applicable Tax Return.
(c) TRANSFER TAX RETURNS. Purchaser shall pay all Transfer Taxes;
PROVIDED, HOWEVER, that each of Seller, the Acquired Companies and Purchaser
shall use reasonable efforts to avail itself of any available exemptions from
any such Transfer Taxes, and to cooperate with the other parties in providing
any information and documentation that may be necessary to obtain such
exemption.
(d) AMENDED TAX RETURNS. After the Closing Date, the Acquired
Companies and their respective subsidiaries shall not file any amended Tax
Return for a Pre-Closing Tax Period or Straddle Period without the prior written
consent of Seller, which consent shall not be unreasonably withheld or delayed.
(e) COOPERATION. Seller and Purchaser shall reasonably cooperate, and
shall cause their respective affiliates, officers, employees, agents, auditors
and representatives reasonably to cooperate, in preparing and filing all Tax
Returns of the Acquired Companies and their respective subsidiaries, including
maintaining and making available to each other all records necessary in
connection with Taxes and in resolving all disputes and audits with respect to
all taxable periods relating to Taxes. Seller and its affiliates will need
access, from time to time after the Closing Date, to certain accounting and Tax
records and information held by the Acquired Companies and their respective
subsidiaries to the extent such records and information pertain to events
occurring prior to the Closing Date; therefore, Purchaser shall, and shall cause
each Acquired Company and each subsidiary of an Acquired Company to, (i) use its
reasonable best efforts to properly retain and maintain such records until such
time as Seller agrees that such retention and maintenance is no longer
necessary, and (ii) allow Seller and its agents and representatives (and agents
or representatives of any of its affiliates), at times and dates mutually
acceptable to the parties, to
47
inspect, review and make copies of such records as Seller may deem necessary or
appropriate from time to time, such activities to be conducted during normal
business hours and at Seller's expense.
(f) REFUNDS AND CREDITS. Any refund or credit of Income Taxes of any
of the Acquired Companies or any of their respective subsidiaries for any
Pre-Closing Tax Period shall be for the account of Seller (excluding refunds or
credits arising as a result of the carryback of losses generated from any
Post-Closing Tax Period (as defined below)). Any refund or credit of Income
Taxes of any of the Acquired Companies or any of their respective subsidiaries
for any taxable period (or portion thereof) beginning after the Closing Date (a
"POST-CLOSING TAX PERIOD") shall be for the account of Purchaser. Purchaser
shall, if Seller so requests and at Seller's expense, cause any of the Acquired
Companies or any of their respective subsidiaries to file for and obtain any
refunds or credits to which Seller is entitled under this Section 5.07(f).
Purchaser and the Acquired Companies shall permit Seller to control the
prosecution of any such refund claim. If Seller pays (or causes any of the
Acquired Companies or any of their respective subsidiaries to pay prior to the
Closing Date) estimated Income Taxes for any Straddle Period in excess of the
amount ultimately determined to be due for the portion of such Straddle Period
ending on the Closing Date and Purchaser obtains the benefit of such excess
payment, Purchaser shall promptly refund such excess to Seller.
(g) TAX SHARING AGREEMENTS. Seller shall cause the provisions of any
Tax sharing agreement (or any equivalent thereof, including profit and loss
sharing agreements) between Seller or any of its affiliates (other than the
Acquired Companies and any of their respective subsidiaries), and any of the
Acquired Companies or any of their respective subsidiaries, to be terminated on
or before the Closing Date. After the Closing Date, no party shall have any
rights or obligations under any such Tax sharing agreement.
(h) CLOSING DATE. On the Closing Date, Purchaser shall cause each
Acquired Company and each subsidiary of an Acquired Company to conduct its
business in the ordinary course in substantially the same manner as currently
conducted and on the Closing Date shall not permit any of the Acquired Companies
or any of their respective
48
subsidiaries to effect any extraordinary transactions (other than any such
transactions expressly required by Applicable Law or by this Agreement) that
could result in (a) any Tax liability to Seller or any of its affiliates or any
indemnification obligation of Seller for the payment of Taxes under Section
8.01(a) or Section 8.02 or (b) any Tax liability to any of the Acquired
Companies or any of their respective subsidiaries in excess of Tax liability
associated with the conduct of their respective business in the ordinary course.
SECTION 5.08. PUBLICITY. From the date hereof through the Closing
Date, no public release or announcement concerning the transactions contemplated
hereby (other than the transactions contemplated in Schedule 5.15) shall be
issued by any party without the prior consent of the other parties (which
consent shall not be unreasonably withheld or delayed), except as such release
or announcement may be required by Applicable Law or the rules or regulations of
any U.S. or non-U.S. securities exchange, in which case the party required to
make the release or announcement shall allow the other parties reasonable time
to comment on such release or announcement in advance of such issuance;
PROVIDED, HOWEVER, that each of the parties may make internal announcements to
their respective employees that are consistent with the parties' prior public
disclosures regarding the transactions contemplated hereby.
SECTION 5.09. RESIGNATIONS. On the Closing Date, Seller shall cause to
be delivered to Purchaser duly signed resignations (from the applicable board of
directors or supervisory board), effective immediately after the Closing, of all
directors and supervisory board members (other than any directors or supervisory
board members that were appointed on such boards as representatives of the
employees of an Acquired Company or a subsidiary of an Acquired Company) of each
of the Acquired Companies and each of their respective subsidiaries who are not
employees of any of the Acquired Companies or their respective subsidiaries and
shall take such other action as is necessary to accomplish the foregoing;
PROVIDED, HOWEVER, that this covenant shall not apply to the directors of Widia
India.
SECTION 5.10. NO USE OF CERTAIN NAMES. (a) Purchaser shall cause each
Acquired Company and each subsidiary of an Acquired Company promptly, and in any
event (i) within 90 days after the Closing, to revise print
49
advertising and product labeling to delete all references to the Milacron Names
(as defined below), except to the extent such use is permitted under the License
Agreement and (ii) within 60 days after the Closing, to change Internet domain
names and websites, signage and stationery and otherwise discontinue use of the
Milacron Names for corporate identification purposes. Purchaser agrees that it
will not order any new print advertising, product labeling, signage or
stationery, or create any new information or other materials, which uses the
Milacron Names after the Closing, except with respect to the use of Milacron
Names permitted under the License Agreement. Except as otherwise provided in the
License Agreement, in no event shall Purchaser, the Acquired Companies or their
respective subsidiaries use any Milacron Names after the Closing in any manner
or for any purpose different from the use of such Milacron Names by the Acquired
Companies and their respective subsidiaries, as the case may be, during the
90-day period preceding the Closing. Within 60 days after the Closing, Purchaser
shall cause each Acquired Company and each subsidiary of an Acquired Company to
file applications to amend or terminate any certificate of assumed name or d/b/a
or non-U.S. filings so as to eliminate the right of the Acquired Companies and
their respective subsidiaries to use the Milacron Names for corporate
identification purposes. Immediately prior to the Closing, Seller shall cause
the names of each Acquired Company and each subsidiary of an Acquired Company
(in each case, to the extent they make use of the Milacron Names) to be changed
to names (that do not include the Milacron Names) selected by Purchaser.
"MILACRON NAMES" means "Milacron", "Valenite", "Modco" or any name, symbol, logo
or trademark that includes "Milacron", "Valenite" or "Modco", any variations and
derivatives thereof and any other names, logos, symbols or trademarks of Parent,
Seller or their respective affiliates not included in Schedule 2.08.
(b) Parent and Seller shall, or shall cause their respective
subsidiaries to, promptly, and in any event (i) within 90 days after the
Closing, revise print advertising and product labeling to delete all references
to the Widia Names (as defined below), except to the extent such use is
permitted under the License Agreement and (ii) within 60 days after the Closing,
change Internet domain names and websites, signage and stationery and otherwise
discontinue use of the Widia Names for corporate identification purposes. Parent
and Seller agree that
50
neither they nor their respective subsidiaries will order any new print
advertising, product labeling, signage or stationery, or create any new
information or other materials, which uses the Widia Names after the Closing,
except with respect to the use of Widia Names permitted under the License
Agreement. Except as otherwise provided in the License Agreement, in no event
shall Parent, Seller or their respective subsidiaries use any Widia Names after
the Closing in any manner or for any purpose different from the use of such
Widia Names by Parent, Seller and their respective subsidiaries, as the case may
be, during the 90-day period preceding the Closing. Within 60 days after the
Closing, Parent and Seller shall, or shall cause their respective subsidiaries
to, file applications to amend or terminate any certificate of assumed name or
d/b/a or non-U.S. filings so as to eliminate the right of Parent, Seller and
their respective subsidiaries to use the Widia Names for corporate
identification purposes. "WIDIA NAMES" means "Widia", "Xxxxxxxx", "Werko" or any
name, symbol, logo or trademark that includes "Widia", "Xxxxxxxx" or "Werko",
any variations and derivatives thereof and any other names, logos, symbols or
trademarks of the Acquired Companies and their respective subsidiaries,
including those set forth in Schedule 2.08.
SECTION 5.11. NO FURTHER FINANCIAL OBLIGATIONS. Purchaser acknowledges
that in the course of conduct by the Acquired Companies and their respective
subsidiaries of their respective businesses, Parent, Seller and their respective
affiliates (collectively, but excluding the Acquired Companies and their
respective subsidiaries, the "SELLER ENTITIES") entered into various
arrangements (i) in which guarantees were issued by the Seller Entities or (ii)
in which the Seller Entities are the primary obligors on other agreements, in
any such case to support or facilitate business transactions or programs of the
Acquired Companies and their respective subsidiaries. The financing or other
arrangements referred to in the foregoing clauses (i) and (ii) are hereinafter
referred to as the "GUARANTEES". The Guarantees are set forth in Schedule 5.11.
It is understood that the Guarantees shall not continue after the Closing.
Purchaser agrees that Purchaser shall use its reasonable best efforts to obtain
replacement Guarantees which will be in effect at the Closing or, in the case of
Guarantees described in the foregoing clause (ii), will either terminate the
business transactions or programs of the Acquired Companies and their
51
respective subsidiaries supported or facilitated by such Guarantees or arrange
for itself or one of its subsidiaries to be substituted as the primary obligor
thereon as of the Closing Date. In the event that Purchaser is unable to satisfy
the terms of the immediately preceding sentence, Purchaser and its affiliates
shall indemnify, defend and hold harmless the Seller Entities from and against
any and all Losses (as defined in Section 8.02) incurred by the Seller Entities
relating to the Guarantees.
SECTION 5.12. SUPPORT SERVICES. Purchaser acknowledges that as of the
Closing Date, Parent and Seller shall have no obligation to provide any support
or other services to any of the Acquired Companies or any of their respective
subsidiaries (including any of the services for which allocations were
previously paid by the Acquired Companies or their respective subsidiaries).
SECTION 5.13. POST-CLOSING INFORMATION. Following the Closing, upon
reasonable written notice to Purchaser, Purchaser shall, and shall cause the
Acquired Companies and their respective subsidiaries to, afford to Seller and
its affiliates reasonable access to the personnel, properties, books, contracts,
commitments and records of the Acquired Companies and their respective
subsidiaries for any reasonable business purpose, including in respect of
litigation, insurance matters and financial reporting of Seller and its
affiliates; PROVIDED, HOWEVER, that such access does not unreasonably disrupt
the normal operations of the Acquired Companies and their respective
subsidiaries.
SECTION 5.14. LITIGATION MATTERS. With respect to any Proceeding or
arbitration by or against an Acquired Company or a subsidiary of an Acquired
Company (excluding any such Proceeding or arbitration between Parent or any of
its affiliates, on the one hand, and Purchaser or any of its affiliates, on the
other hand) (collectively, the "ACTIONS"), to the extent relating to the period
prior to the Closing, Purchaser, on the one hand, and Parent and Seller, on the
other hand, shall, upon the reasonable request of the other, provide reasonable
cooperation and assistance to the other at the requesting party's sole expense
in connection therewith. Prior to the Closing Date, Purchaser and Seller shall
enter into arrangements such that on and after the Closing Date, Purchaser or
Widia Italy shall assume full responsibility for (a) the prosecution,
52
defense and/or settlement and all other aspects of the administration of any
Action (including the matters set forth in Schedule 2.12) by or against Milacron
Italia S.r.l., a company organized under the laws of the Republic of Italy,
relating to its Business (collectively, the "ITALIAN ACTIONS") and (b) the
timely payment of any and all losses, damages, liabilities, obligations or
expenses related to or arising out of the Italian Actions. After the Closing,
Seller shall (x) promptly deliver to Widia Italy the case files relating to the
Italian Actions and (y) provide reasonable cooperation and assistance to Widia
Italy at Widia Italy's sole expense in connection with the assumption by Widia
Italy of the Italian Actions. Neither Parent nor Seller shall be required by
this Section 5.14 to take any action that would interfere with the conduct of
their business or disrupt their normal operations. In the event that Parent,
Seller or one of their respective affiliates (other than the Acquired Companies
and any of their respective subsidiaries) is a party to or affected by any
Action, Parent or Seller, as the case may be, may, at its own cost and expense,
continue to control the prosecution, defense and/or settlement and all other
aspects of the administration of that portion of such Action that relates to or
affects Parent, Seller or any of their respective affiliates (other than the
Acquired Companies and any of their respective subsidiaries), as applicable.
SECTION 5.15. CERTAIN PRE-CLOSING MATTERS. Prior to the Closing,
Seller shall take all reasonable actions necessary to effect the transfers of
the employees, assets and liabilities as outlined in Schedule 5.15. Such
transfers shall be completed within 90 days after the date of this Agreement.
SECTION 5.16. PURCHASER'S OBLIGATION TO OBTAIN SEBI EXEMPTION OR
UNDERTAKE PUBLIC OFFER. Within the time periods prescribed by SEBI, Purchaser
shall do one of the following: (i) apply for and obtain from SEBI a letter (a
copy of which shall be promptly delivered to Seller) indicating that the
transfer of the Shares to Purchaser is exempt from any requirement of a public
offer for shares of Widia India in connection with the Acquisition (a "PUBLIC
OFFER") under the SEBI (Substantial Acquisition of Shares and Takeovers)
Regulations, 1997 (the "SEBI REGULATIONS") and if the SEBI exemption letter is
subject to any conditions, Purchaser shall comply with and fulfill all the
conditions imposed by SEBI in connection with such
53
exemption, including receipt of any required approval from the shareholders of
Widia India; (ii) obtain an opinion of an Indian Senior advocate who is
reasonably acceptable to Seller (a copy of which shall be promptly delivered to
Seller) indicating that the transfer of the Shares to Purchaser is exempt from
any requirement of a Public Offer under the SEBI Regulations; or (iii) undertake
a Public Offer and comply with all requirements of the SEBI Regulations
applicable thereto. In the event that Purchaser has undertaken a Public Offer,
Purchaser shall complete such Public Offer in accordance with the terms of the
SEBI Regulations and the directions of SEBI.
SECTION 5.17. COMMERCIAL ARRANGEMENTS. For the twelve-month period
immediately following the Closing Date, each of Parent and Purchaser shall, or
shall cause their affiliates to, continue the commercial arrangements outlined
in Schedule 5.17 in a manner substantially consistent with current practice
(including in accordance with the material terms of such commercial arrangements
as outlined in Schedule 5.17).
SECTION 5.18. NO NEGOTIATION. Until such time as this Agreement shall
have been terminated in accordance with Article VII hereof, and provided that
Purchaser shall not have breached any of its obligations hereunder, Parent shall
not, nor shall it authorize any of its subsidiaries or any investment banker,
attorney, accountant or other representative retained by it or by any of its
subsidiaries to, (i) solicit any "other bid", (ii) enter into any agreement with
respect to any "other bid," or (iii) participate in any discussions or
negotiations regarding, or furnish to any person any nonpublic information not
available to such person with respect to, any "other bid". As used in this
Section 5.18, "OTHER BID" shall mean any proposal for (x) a merger or
consolidation, (y) a sale of all the equity securities or (z) a sale of all or
substantially all of the assets, in each case, of the Acquired Companies and
their respective subsidiaries, other than (A) the transactions contemplated by
this Agreement, including the transactions contemplated in Schedule 5.15 and (B)
the sale of assets in the ordinary course of business.
SECTION 5.19. INDEMNIFICATION RIGHTS. Following the Closing, Seller
shall use commercially reasonable efforts to assign from time to time to Widia
Germany, upon Widia Germany's request, (A) Seller's and its affiliates'
54
rights to indemnification under Sections 7.3(a)(ii)-(iv), Section 7.5 and
Section 7.7 of the Stock Purchase Agreement dated as of November 28, 1994 (the
"XXXXX STOCK PURCHASE AGREEMENT") among Fried. Xxxxx XX Xxxxxx-Xxxxx, Seller and
Cincinnati Milacron Kunststoffmaschimen Europa GmbH and (B) Seller's rights to
indemnification under Section 6.5, Article 7, Article 8 and Article 10 of the
Acquisition Agreement dated as of September 29, 1998 (the "WERKO ACQUISITION
AGREEMENT") among Xxxxxxx Xxxxx, Marzling, Federal Republic of Germany; Xxxxxx
Xxxxxxx, Xxxx an der Amper, Federal Republic of Germany; Xxxxxxxx Xxxxx,
Marzling, Federal Republic of Germany; Xxxxxx Xxxxxxx, Wuppertal, Federal
Republic of Germany; Xxxxx Xxxxxxx, Xxxxxxxxxx-Niederhummel, Federal Republic of
Germany and Seller, in each case, to the extent (x) such rights relate to
claims, costs or damages asserted only against, or incurred or suffered only by,
any of the Acquired Companies and their respective subsidiaries and not Seller
or any of its affiliates (other than the Acquired Companies and their respective
subsidiaries) and (y) Seller and its affiliates (other than the Acquired
Companies and their respective subsidiaries) have suffered no Losses (as defined
in Section 8.02) as a result of such claims, costs or damages; PROVIDED,
HOWEVER, that Seller shall not be required to use commercially reasonable
efforts to assign such rights to indemnification to Widia Germany with respect
to any claim, cost or damage which is or may be the subject of indemnification
under Section 8.02. Purchaser shall pay all costs and expenses of Seller,
including third-party legal fees and expenses, incurred in connection with the
discharge of Seller's obligations under this Section 5.19.
SECTION 5.20. INTERCOMPANY LIABILITIES. (a) Prior to the close of
business on the Closing Date, Parent shall, and shall cause each of its
subsidiaries to, settle (i) all intercompany receivables and payables that were
incurred prior to the 60th day preceding the Closing Date and arise from trade
transactions between an Acquired Company or a subsidiary of an Acquired Company,
on the one hand, and Parent or any of its subsidiaries (other than the Acquired
Companies and their respective subsidiaries), on the other hand, and (ii) all
intercompany loans and advances between an Acquired Company or a subsidiary of
an Acquired Company, on the one hand, and Parent or any of its subsidiaries
(other than the Acquired Companies and their respective subsidiaries), on the
other hand.
55
(b) Parent shall, and shall cause each of its subsidiaries (other than
the Acquired Companies and their respective subsidiaries) to, settle on the date
of payment of the Purchase Price adjustment in accordance with Section 1.04(c)
(the "PURCHASE PRICE ADJUSTMENT PAYMENT DATE") all intercompany receivables that
(i) arise from trade transactions between an Acquired Company or a subsidiary of
an Acquired Company, on the one hand, and Parent or any of its subsidiaries
(other than the Acquired Companies and their respective subsidiaries), on the
other hand, (ii) were incurred within the 60-day period immediately preceding
the Closing Date, (iii) are owed to an Acquired Company or a subsidiary of an
Acquired Company by Parent or any of its subsidiaries (other than the Acquired
Companies and their respective subsidiaries), (iv) were disclosed on, or
reflected in, the Statement and (v) were not otherwise settled prior to or on
the Purchase Price Adjustment Payment Date in an amount equal to the amount of
such intercompany receivables as disclosed on, or reflected in, the Statement.
Purchaser shall, and shall cause each of its subsidiaries (including the
Acquired Companies and their respective subsidiaries) to, settle as of the
Purchase Price Adjustment Payment Date all intercompany payables that (i) arise
from trade transactions between an Acquired Company or a subsidiary of an
Acquired Company, on the one hand, and Parent or any of its subsidiaries (other
than the Acquired Companies and their respective subsidiaries), on the other
hand, (ii) were incurred within the 60-day period immediately preceding the
Closing Date, (iii) are owed by an Acquired Company or a subsidiary of an
Acquired Company to Parent or any of its subsidiaries (other than the Acquired
Companies and their respective subsidiaries), (iv) were disclosed on, or
reflected or reserved against in, the Statement and (v) were not otherwise
settled prior to or on the Purchase Price Adjustment Payment Date in accordance
an amount equal to the amount of such intercompany payables as disclosed on, or
reflected in, the Statement (net of any amounts reserved against such
intercompany payables in the Statement).
SECTION 5.21. NOTARIZATION. On or immediately following the date of
this Agreement, Purchaser, Parent and Seller shall execute notarized copies of
this Agreement prepared in accordance with German law.
SECTION 5.22 COLLECTION OF FRENCH ACCOUNTS RECEIVABLE. Purchaser
shall, and shall cause each of its
56
subsidiaries (including, on or after the Closing Date, the Acquired Companies
and their subsidiaries) to, assist and cooperate with Seller and its
subsidiaries in order to effect (a) the transfer to a Seller Entity or a third
party designee of Seller of the Discounted Customer Accounts Receivable of
Milacron France SAS (the "French Accounts Receivable"), (b) the assumption or
extinguishment by a Seller Entity of the indebtedness related to the French
Accounts Receivable and (c) the collection by Seller Entities of all amounts due
in respect of the French Accounts Receivable. Purchaser shall not, and shall not
permit any of its subsidiaries to, interfere with any action taken by a Seller
Entity to collect amounts due in respect of the French Accounts Receivable,
including contacting customers of Milacron France SAS in connection with such
collections. In the event that Purchaser or any of its subsidiaries receives any
payments in respect of the French Accounts Receivable, Purchaser or the
applicable subsidiary shall promptly forward all cash or other property directly
or indirectly received by Purchaser or such subsidiary, including any amounts
payable as interest, to the applicable Seller Entity or third party designee, if
any.
ARTICLE VI
Conditions Precedent
--------------------
SECTION 6.01. CONDITIONS TO EACH PARTY'S OBLIGATION. The obligation of
Purchaser to purchase and pay for the Shares and the obligation of Seller to
sell and transfer the Shares is subject to the satisfaction (or waiver by
Purchaser and Seller) on or prior to the Closing Date of the following
conditions:
(a) GOVERNMENTAL APPROVALS. All material Consents of, or
registrations, declarations or filings with, or expirations of waiting periods
imposed by, any Governmental Entity, including any such entity of the Federal
Republic of Germany but excluding SEBI, necessary for the consummation of the
Acquisition shall have been obtained or filed or shall have occurred or expired.
(b) NO INJUNCTIONS OR RESTRAINTS. No Applicable Law or injunction
enacted, entered, promulgated, enforced or issued by any Governmental Entity or
other legal restraint or prohibition preventing the consummation of the
Acquisition shall be in effect; PROVIDED, HOWEVER, that each
57
of the parties shall have used its reasonable best efforts (as required by
Section 5.04) to prevent the occurrence or entry of any such legal restraint and
to remove or appeal as promptly as possible any such legal restraint.
(c) CONSUMMATION OF CERTAIN TRANSACTIONS. The transactions outlined in
Schedule 5.15 shall have been consummated.
SECTION 6.02. CONDITIONS TO OBLIGATION OF PURCHASER. The obligation of
Purchaser to purchase and pay for the Shares is subject to the satisfaction (or
waiver by Purchaser) on or prior to the Closing Date of the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Seller and Parent in this Agreement shall be true and correct, as of the date
hereof and as of the Closing Date as though made on the Closing Date, except to
the extent such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties shall be true and
correct, on and as of such earlier date), in each case except for breaches as to
matters that would not, individually or in the aggregate, reasonably be expected
to have an Acquired Companies Material Adverse Effect or a Parent Material
Adverse Effect, as applicable, and Purchaser shall have received a certificate
signed by an authorized officer of each of Seller and Parent, respectively, to
such effect.
(b) PERFORMANCE OF OBLIGATIONS. Each of Seller and Parent shall have
performed or complied in all material respects with all obligations and
covenants required by this Agreement to be performed or complied with by it by
the time of the Closing, and Purchaser shall have received a certificate signed
by an authorized officer of each of Seller and Parent, respectively, to such
effect.
(c) CERTIFICATES. Seller shall have delivered to Purchaser a
certificate, substantially in the form set forth in Exhibit G hereto, executed
by a Managing Director of Seller certifying as of the Closing Date that Seller
has taken all corporate action required by its Articles of Association to
authorize the execution and delivery of this Agreement and the consummation of
the Acquisition. Parent shall have delivered to Purchaser a certificate,
58
substantially in the form set forth in Exhibit H hereto, executed by the
Secretary or Assistant Secretary of Parent certifying as of the Closing Date
that Parent has taken all corporate action required by its Restated Certificate
of Incorporation and By-Laws, as amended to the date of this Agreement, to
authorize the execution and delivery of this Agreement and to authorize the
performance of its obligations hereunder.
(d) WIDIA INDIA. (A) The WIS Litigation shall have been settled in
accordance with the Settlement Agreement dated as of May 3, 2002 (the
"SETTLEMENT AGREEMENT"), among Parent, Widia Germany, Meturit AG, SAK and
certain of its affiliates; and (B) Meturit shall have purchased the Series B
equity shares of Widia India held by SAK in accordance with the Share Purchase
Agreement dated as of May 3, 2002 (the "SHARE PURCHASE AGREEMENT"), among
Parent, Widia Germany, Meturit AG and SAK.
SECTION 6.03. CONDITIONS TO OBLIGATION OF SELLER. The obligation of
Seller to sell and transfer the Shares is subject to the satisfaction (or waiver
by Seller) on or prior to the Closing Date of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Purchaser made in this Agreement shall be true and correct, as of the date
hereof and as of the Closing Date as though made on the Closing Date, except to
the extent such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties shall be true and
correct, on and as of such earlier date), in each case except for breaches as to
matters that would not, individually or in the aggregate, reasonably be expected
to have a Purchaser Material Adverse Effect, and Seller shall have received a
certificate signed by an authorized officer of Purchaser to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF PURCHASER. Purchaser shall have
performed or complied in all material respects with all obligations and
covenants required by this Agreement to be performed or complied with by
Purchaser by the time of the Closing, and Seller shall have received a
certificate signed by an authorized officer of Purchaser to such effect.
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SECTION 6.04. FRUSTRATION OF CLOSING CONDITIONS. Neither Purchaser nor
Seller may rely on the failure of any condition set forth in this Article VI to
be satisfied if such failure was caused by such party's failure to act in good
faith or to use its reasonable best efforts to cause the Closing to occur, as
required by Section 5.04.
ARTICLE VII
Termination, Amendment and Waiver
---------------------------------
SECTION 7.01. TERMINATION. (a) Notwithstanding anything to the
contrary in this Agreement, this Agreement may be terminated and the Acquisition
and the other transactions contemplated by this Agreement abandoned at any time
prior to the Closing:
(i) by mutual written consent of Seller and Purchaser;
(ii) by Seller if any of the conditions set forth in Section 6.01 or
6.03 shall have become incapable of fulfillment, and shall not have been
waived by Seller;
(iii) by Purchaser if any of the conditions set forth in Section 6.01
or 6.02 shall have become incapable of fulfillment, and shall not have been
waived by Purchaser; or
(iv) by Seller or Purchaser, if the Closing does not occur on or prior
to September 30, 2002;
PROVIDED, HOWEVER, that the party seeking termination pursuant to clause (ii),
(iii) or (iv) is not then in material breach of any of its representations,
warranties, covenants or agreements contained in this Agreement.
(b) In the event of termination by Seller or Purchaser pursuant to
this Section 7.01, written notice thereof shall forthwith be given to the other
parties and the transactions contemplated by this Agreement shall be terminated,
without further action by any party. If the transactions contemplated by this
Agreement are terminated as provided herein:
60
(i) Purchaser shall return all documents and other material received
from Parent, Seller, the Acquired Companies or any other affiliate of
Parent or Seller relating to the transactions contemplated hereby, whether
so obtained before or after the execution hereof; and
(ii) all confidential information received by Purchaser with respect
to the business of Parent, Seller and their respective affiliates
(including the Acquired Companies and their respective subsidiaries) shall
be treated in accordance with the Confidentiality Agreement, which shall
remain in full force and effect notwithstanding the termination of this
Agreement.
SECTION 7.02. EFFECT OF TERMINATION. If this Agreement is terminated
and the transactions contemplated hereby are abandoned as described in Section
7.01, this Agreement shall become null and void and of no further force and
effect, except for the provisions of (i) Section 5.03 relating to the obligation
of Purchaser to keep confidential certain information and data obtained by it,
(ii) Section 10.03 relating to certain expenses, (iii) Section 5.05 relating to
finder's fees and broker's fees, (iv) Section 7.01 and this Section 7.02 and (v)
Section 5.08 relating to publicity. Nothing in this Section 7.02 shall be deemed
to release any party from any liability for any breach by such party of the
terms and provisions of this Agreement or to impair the right of any party to
compel specific performance by any other party of its obligations under this
Agreement.
ARTICLE VIII
Indemnification
---------------
SECTION 8.01. TAX INDEMNIFICATION. (a) Subject to the limitations set
forth in Section 8.05, from and after the Closing Date, Seller shall indemnify
Purchaser and its affiliates (including the Acquired Companies and their
respective subsidiaries) and each of their respective officers, directors,
employees, stockholders, agents and representatives (the "PURCHASER
INDEMNITEES") against and hold them harmless from (i) all liability for Income
Taxes of the Acquired Companies and their respective subsidiaries for the
Pre-Closing Tax Period and (ii) all liability for
61
reasonable legal fees and expenses attributable to any item in clause (i) above.
Notwithstanding the foregoing, Seller shall not indemnify and hold harmless any
Purchaser Indemnitee from any liability for Taxes attributable to any action
taken on or after the Closing Date by Purchaser, any of its affiliates
(including the Acquired Companies or any of their respective subsidiaries), or
any transferee of Purchaser or any of its affiliates (other than any such action
expressly required by Applicable Law or by this Agreement) (a "PURCHASER TAX
ACT") or attributable to a breach by Purchaser of its obligations under this
Agreement.
(b) From and after the Closing Date, Purchaser shall indemnify Seller
and its affiliates and each of their respective officers, directors, employees,
stockholders, agents and representatives (the "SELLER INDEMNITEES") against and
hold them harmless from (i) all liability for Taxes other than Income Taxes of
the Acquired Companies and their respective subsidiaries for all taxable periods
whether ending before, on or after the Closing Date, except to the extent
provided in Section 8.02, and for Income Taxes for any Post-Closing Tax Period,
(ii) all liability for Taxes attributable to a Purchaser Tax Act or to a breach
by Purchaser of its obligations under this Agreement, and (iii) all liability
for reasonable legal fees and expenses attributable to any item in clause (i) or
(ii) above.
(c) In the case of any Straddle Period, Income Taxes shall be
allocated to the Pre-Closing Tax Period calculated on the basis that the
applicable Tax period ends on the close of business on the Closing Date.
SECTION 8.02. OTHER INDEMNIFICATION BY SELLER. Subject to the
limitations set forth in Section 8.05 or Section 8.06, from and after the
Closing, Seller shall indemnify, defend and hold harmless the Purchaser
Indemnitees against any and all claims, losses, damages, liabilities,
obligations or expenses, including reasonable third-party legal fees, fines and
similar penalties and expenses (collectively, "LOSSES"), to the extent arising
or resulting from any of the following:
(i) any breach of any representation or warranty of Seller or Parent
contained in this Agreement;
(ii) any breach of any covenant of Seller or Parent contained in this
Agreement;
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(iii) any fees, expenses or other payments incurred or owed by Seller
to any agent, broker, investment banker or other firm or person retained or
employed by it in connection with the transactions contemplated by this
Agreement;
(iv) any breach by Seller or any of its affiliates of any term of the
Xxxxx Stock Purchase Agreement (excluding any exhibits thereto);
(v) any breach by Seller of any term of the Werko Acquisition
Agreement (excluding any exhibits thereto);
(vi) any pre-Closing breach by Widia Germany of any term of the Asset
Purchase Agreement dated as of August 22, 2000 between Widia Germany and
Magnequench, Inc. (excluding any exhibits thereto);
(vii) the Excluded Liabilities (as defined in Section 10.05(b));
(viii) any breach by Parent or any of its subsidiaries of their
respective obligations to SAK Industries Limited ("SAK") under (A) the
Promotion Agreement dated as of September 30, 1963 between SAK and Meturit
AG, (B) the Settlement Agreement dated as of December 20, 1994 (the "XXXXX
SETTLEMENT AGREEMENT") among Fried. Xxxxx XX Xxxxxx-Xxxxx, Xxxxx GmbH,
Meturit AG, SAK and certain associates and nominees of SAK, (C) the
Shareholders' Agreement dated as of December 20, 1994 (the "SHAREHOLDERS'
AGREEMENT") among SAK, Widia GmbH and Meturit AG, in each case arising or
resulting from the consummation of the Acquisition, (D) the Share Purchase
Agreement and (E) the Settlement Agreement;
(ix) the matters set forth in the report mentioned in Schedule
2.14(a), but only to the extent that the effect of such matters has not
been disclosed on, or reflected or reserved against in, the Reference
Statement or the Statement;
(x) any claim that the purchase and sale of the Shares or the
transactions contemplated hereby give rise to any retention bonus or change
of control payment pursuant to an arrangement that was entered into at any
time during the fifteen-month period
63
immediately preceding the date of this Agreement in contemplation of the
sale of Seller's Widia business;
(xi) any Taxes (other than Income Taxes) of the Acquired Companies and
their respective subsidiaries attributable to the Pre-Closing Tax Period;
and
(xii) the matters set forth in paragraphs II and III of Schedule
2.11(b);
PROVIDED, HOWEVER, that (i) no Losses relating to the payment of Taxes shall be
covered by this Section 8.02, other than to the extent Section 8.02(i) relates
to Section 2.11 and other than as provided in Section 8.02(xi), (ii) Taxes shall
be covered by this Section 8.02 only to the extent the aggregate amount of such
Taxes exceeds the aggregate amount of such Taxes disclosed on, or reflected or
reserved against in, the Reference Statement or the Statement and (iii) no Loss
shall be indemnified under both Section 8.01 and Section 8.02.
SECTION 8.03. OTHER INDEMNIFICATION BY PURCHASER. From and after the
Closing, Purchaser shall indemnify, defend and hold harmless the Seller
Indemnitees from and against any and all Losses (other than any Loss relating to
Taxes, for which indemnification provisions are set forth in Section 8.01), to
the extent arising or resulting from any of the following:
(i) any breach of any representation or warranty of Purchaser
contained in this Agreement;
(ii) any breach of any covenant of Purchaser contained in this
Agreement;
(iii) any guarantee or obligation to assure performance given or made
by Parent, Seller or any of their respective affiliates (other than the
Acquired Companies or any of their respective subsidiaries) with respect to
any obligation of any of the Acquired Companies or their respective
subsidiaries;
(iv) all obligations, liabilities and commitments of whatever kind and
nature, primary or secondary, direct or indirect, express, implied,
liquidated, absolute, contingent or otherwise, known or unknown, whether or
not accrued, whether arising before, on or
64
after the Closing Date, of an Acquired Company or a subsidiary of an
Acquired Company, including any such obligations or liabilities relating to
(x) any Acquired Companies Contract or any agreement, lease, license,
permit, plan or commitment that, because it fails to meet the relevant
threshold amount or term, is not included within the definition of Acquired
Companies Contracts, (y) any Acquired Companies Benefit Plan or (z) any
Action, except, in any such case, to the extent Seller is required to
provide indemnification for such obligations, liabilities and commitments
under Section 8.02;
(v) any noncompliance by Purchaser or any of its affiliates (including
the Acquired Companies and their respective subsidiaries) with the SEBI
Regulations or the directions of SEBI in connection with the Acquisition;
(vi) any discontinuance, suspension or modification on or after the
Closing Date of any Acquired Companies Benefit Plan; and
(vii) any claim that the purchase and sale of the Shares or the
transactions contemplated hereby give rise to any severance or other
benefits under any Benefit Plan or otherwise, except to the extent Seller
is required to provide indemnification for such claims under Section
8.02(x).
SECTION 8.04. INDEMNIFICATION PROCEDURES. (a)(i) PROCEDURES RELATING
TO INDEMNIFICATION OF THIRD PARTY CLAIMS. If any party (the "INDEMNIFIED PARTY")
receives written notice of the commencement of any action or proceeding or the
assertion of any claim by a third party or the imposition of any penalty or
assessment (in each case other than with respect to Taxes) for which indemnity
may be sought under Section 8.02 or 8.03 (a "THIRD PARTY CLAIM"), and such
Indemnified Party intends to seek indemnity pursuant to this Article VIII, the
Indemnified Party shall promptly provide the other party (the "INDEMNIFYING
PARTY") with written notice of such Third Party Claim, stating the nature, basis
and the amount thereof, to the extent known, along with copies of the relevant
documents evidencing such Third Party Claim and the basis for indemnification
sought. Failure of the Indemnified Party to give such notice will not relieve
the Indemnifying Party from liability on account
65
of this indemnification, except if and to the extent that the Indemnifying Party
is actually prejudiced thereby. The Indemnifying Party will have 30 days from
receipt of any such notice of a Third Party Claim to give notice to assume the
defense thereof. If notice to the effect set forth in the immediately preceding
sentence is given by the Indemnifying Party, the Indemnifying Party will have
the right to assume the defense of the Indemnified Party against the Third Party
Claim with counsel of its choice. So long as the Indemnifying Party has assumed
the defense of the Third Party Claim in accordance herewith, (A) the Indemnified
Party may retain separate co-counsel at its sole cost and expense and
participate in the defense of the Third Party Claim, (B) the Indemnified Party
will not file any papers or consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party and (C) the Indemnifying Party will not (i)
admit to any wrongdoing or (ii) consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim to the extent such
judgment or settlement provides for equitable relief, in each case, without the
prior written consent of the Indemnified Party (such written consent will not be
withheld or delayed unreasonably). The parties will use reasonable best efforts
to minimize Losses from Third Party Claims and will act in good faith in
responding to, defending against, settling or otherwise dealing with such
claims. The parties will also cooperate in any such defense and give each other
reasonable access to all information relevant thereto. Whether or not the
Indemnifying Party has assumed the defense, such Indemnifying Party will not be
obligated to indemnify the Indemnified Party hereunder for any settlement
entered into or any judgment that was consented to without the Indemnifying
Party's prior written consent.
(ii) PROCEDURES FOR NON-THIRD PARTY CLAIMS. The Indemnified Party will
notify the Indemnifying Party in writing promptly of its discovery of any matter
that does not involve a Third Party Claim being asserted against or sought to be
collected from the Indemnified Party, giving rise to the claim of indemnity
pursuant hereto. The failure so to notify the Indemnifying Party shall not
relieve the Indemnifying Party from liability on account of this
indemnification, except only to the extent that the Indemnifying Party is
actually prejudiced thereby. The Indemnifying Party will have 30 days from
receipt of any
66
such notice to give notice of dispute of the claim to the Indemnified Party. The
Indemnified Party will reasonably cooperate and assist the Indemnifying Party in
determining the validity of any claim for indemnity by the Indemnified Party and
in otherwise resolving such matters. Such assistance and cooperation will
include providing reasonable access to and copies of information, records and
documents relating to such matters, furnishing employees to assist in the
investigation, defense and resolution of such matters and providing legal and
business assistance with respect to such matters.
(b) PROCEDURES RELATING TO INDEMNIFICATION OF TAX CLAIMS. (i) If one
party is responsible for the payment of Taxes pursuant to Section 8.01 or
Section 8.02 of this Agreement (the "TAX INDEMNIFYING PARTY"), and another party
to this Agreement (the "TAX INDEMNIFIED PARTY") receives a notice of deficiency,
proposed adjustment, adjustment, assessment, audit, examination, suit, dispute
or other claim (a "TAX CLAIM") with respect (in whole or in part) to such Taxes,
the Tax Indemnified Party shall promptly notify the Tax Indemnifying Party in
writing of such Tax Claim. The Tax Indemnifying Party shall assume and control
the applicable audit or examination and the defense of a Tax Claim involving any
Taxes for which it has an obligation to indemnify the Tax Indemnified Party
pursuant to Section 8.01 or Section 8.02 of this Agreement, and the Tax
Indemnified Party and its affiliates agree to cooperate with the Tax
Indemnifying Party in pursuing such contest, including execution of any powers
of attorney in favor of the Tax Indemnifying Party. Notwithstanding anything to
the contrary contained herein, the Tax Indemnifying Party shall keep the Tax
Indemnified Party informed of all material developments and events relating to
such Tax Claim and the Tax Indemnified Party, at its own cost and expense and
with its own counsel, shall have the right to participate in (but not control)
the applicable audit or examination and defense of such Tax Claim.
(ii) In no case shall any Tax Indemnified Party settle or otherwise
compromise any Tax Claim without the Tax Indemnifying Party's prior written
consent. None of the parties hereto shall settle a Tax Claim relating solely to
Income Taxes of any of the Acquired Companies or any of their respective
subsidiaries for a Straddle Period without the other party's prior written
consent.
67
SECTION 8.05. LIMITATIONS ON TAX INDEMNIFICATION. Seller shall not
have an obligation to indemnify and hold harmless Purchaser or its affiliates
for the payment of Taxes pursuant to Section 8.01(a) or Section 8.02 unless
Seller receives a written notice of a claim for indemnification prior to the
time the applicable statute of limitation with respect to the liability for
Taxes in question expires. Seller shall be liable for Taxes pursuant to Section
8.01 or Section 8.02 or for a breach of Section 2.11 for Losses relating to the
payment of Taxes when and only to the extent Taxes have become due and payable
by any of the Purchaser Indemnitees and would not have been payable but for the
fact that causes a Loss under Section 8.01 or Section 8.02. Notwithstanding
anything to the contrary in this Agreement, Seller's indemnification obligations
for a breach of Section 2.11(h) shall survive indefinitely.
SECTION 8.06. LIMITATIONS ON INDEMNIFICATION. (a) Notwithstanding the
foregoing provisions of this Article VIII:
(i) Seller shall not be responsible, pursuant to Section 8.02(i), for
any indemnifiable Losses suffered by any Purchaser Indemnitee arising out
of a breach of any representation or warranty of Parent or Seller included
herein unless a claim therefor is asserted in writing prior to the close of
business on the eighteenth month anniversary of the Closing Date, failing
which such claim shall be waived and extinguished; PROVIDED, HOWEVER, that
a claim with respect to a breach of (A) the representations and warranties
of Seller set forth in Sections 2.02 or 2.05 to the extent it relates to
title to the Shares may be made if asserted in writing at any time after
the Closing Date, (B) the representations and warranties of Seller set
forth in Sections 2.11(a) through (g) may be made if asserted in writing at
any time after the Closing Date until 30 days following the applicable
statute of limitations and (C) the representations and warranties of Seller
set forth in Sections 2.14(b) or 2.14(c) may be made if asserted in writing
prior to the close of business on the fourth-year anniversary of the
Closing Date, in each case failing which such claims shall be waived and
extinguished;
68
(ii) Seller shall not be liable, pursuant to Section 8.02(i) or
Section 8.02(xi), for (w) any Losses suffered by any Purchaser Indemnitee
arising out of any breach of the representations and warranties of Parent
or Seller (other than the representations and warranties of Seller set
forth in Sections 2.14(b) or 2.14(c)) or pursuant to Section 8.02(xi)
unless the aggregate of all such Losses suffered by the Purchaser
Indemnitees exceeds, on a cumulative basis, an amount equal to
(euro)2,500,000, and then only to the extent of any such excess, (x) any
Losses suffered by any Purchaser Indemnitee arising out of any breach of
the representations and warranties of Seller set forth in Sections 2.14(b)
or 2.14(c) unless the aggregate of all such Losses suffered by the
Purchaser Indemnitees exceeds, on a cumulative basis, an amount equal to
(euro)7,199,025 or (y) any individual items where the Loss relating thereto
is less than (euro)7,500 and such items shall not be aggregated for
purposes of the immediately preceding clauses (w) and (x); PROVIDED,
HOWEVER, that this clause (ii) shall not be applicable to any Losses
suffered by the Purchaser Indemnitees as a result of any breach of the
representations and warranties of Seller set forth in Sections 2.02 or 2.05
to the extent it relates to title to the Shares;
(iii) the aggregate liability of Seller hereunder, pursuant to Section
8.02(i) (except for any breach of the representations and warranties of
Seller set forth in Sections 2.02 or 2.05 to the extent it relates to title
to the Shares) and pursuant to Section 8.02(xi), for Losses suffered by the
Purchaser Indemnitees shall in no event exceed (euro)84,726,990;
(iv) the aggregate liability of Seller hereunder, pursuant to Section
8.02(i) solely with respect to any breach of the representations and
warranties of Seller set forth in Sections 2.02 or 2.05 to the extent it
relates to title to the Shares for Losses suffered by the Purchaser
Indemnitees shall in no event exceed (euro)188,282,202;
(v) Seller shall have liability pursuant to Section 8.02(i) for Losses
arising from any breach of the representations and warranties contained in
Sections 2.14(b) or 2.14(c) only to the extent such Losses were incurred to
comply with any applicable
69
Environmental Laws or any order or directive arising thereunder; PROVIDED,
HOWEVER, that Seller shall not have liability for such Losses to the extent
Purchaser or any other party after Closing contributed to the condition or
circumstance forming the basis of such Losses; and
(vi) no party hereto shall be liable to the others for indirect,
special, incidental, consequential or punitive damages claimed by such
other parties under the terms of this Agreement.
In no event shall Seller be obligated to indemnify Purchaser or any
other person with respect to any matter to the extent that Purchaser received a
benefit from the reflection of such matter in the result of the calculation of
the adjustment to the Purchase Price, if any, pursuant to Section 1.04(c).
(b) Purchaser acknowledges and agrees that, (i) other than the
representations and warranties of Seller specifically contained in this
Agreement, none of Seller, the Acquired Companies, the subsidiaries of any of
the Acquired Companies or any other person has made any representation or
warranty either expressed or implied (A) with respect to the Acquired Companies
and their respective subsidiaries or their respective assets and liabilities,
the transactions contemplated hereby or the Shares or (B) as to the accuracy or
completeness of any information regarding the Acquired Companies and their
respective subsidiaries furnished or made available to Purchaser and its
representatives and (ii) Purchaser shall have no claim or right to
indemnification pursuant to this Article VIII and none of Parent, Seller, the
Acquired Companies, the subsidiaries of the Acquired Companies or any other
person shall have or be subject to any liability to Purchaser or any other
person with respect to any information, documents or materials furnished by
Parent, Seller, any of the Acquired Companies or any of their respective
affiliates, officers, directors, employees, agents or advisors to Purchaser,
including the Confidential Information Memorandum relating to the Metalcutting
Tools Business of Parent dated February 2001 and the Confidential Information
Memorandum relating to the Metalworking Technologies Group of Parent dated
February 2001, both of which were prepared by Credit Suisse First Boston
Corporation, and any information, documents or material made
70
available to Purchaser in certain "data rooms", management presentations or any
other form in expectation of the transactions contemplated hereby.
(c) Purchaser further acknowledges and agrees that, should the Closing
occur, its sole and exclusive remedy with respect to any and all claims relating
to this Agreement, the Acquired Companies and their respective subsidiaries or
their respective assets and liabilities, the transactions contemplated hereby
and the Shares (other than claims of, or causes of action arising from, fraud)
shall be pursuant to the indemnification provisions set forth in this Article
VIII. In furtherance of the foregoing, Purchaser (on behalf of itself and its
affiliates (including the Acquired Companies)) hereby waives, from and after the
Closing, any and all rights, claims and causes of action (other than claims of,
or causes of action arising from, fraud) Purchaser, any of the Acquired
Companies or any of their respective subsidiaries or any other Purchaser
Indemnitee may have against Seller or any of its affiliates arising under or
based upon any Federal, state, local or foreign statute, law, ordinance, rule or
regulation or otherwise (except pursuant to the indemnification provisions set
forth in this Article VIII).
SECTION 8.07. CALCULATION OF INDEMNITY PAYMENTS. The amount of any
Loss for which indemnification is provided under this Article VIII shall be net
of any amounts actually recovered by the Indemnified Party under insurance
policies or under any underground storage tank or similar environmental
reimbursement program with respect to such Loss. The Indemnified Party agrees to
use its reasonable best efforts to pursue and collect on any recovery available
from any insurance policy available to it and to net any such recovery against
any claim for indemnification hereunder or, if an indemnification claim has
already been resolved, against the amount paid pursuant to such resolution. The
amount of any Loss with respect to Widia India for which indemnification is
provided under this Article VIII to the Purchaser Indemnitees shall be
calculated based on the percentage of the share capital of Widia India held,
directly or indirectly, by Purchaser as of the date such Loss is incurred.
SECTION 8.08. TAX TREATMENT OF INDEMNIFICATION. For all Tax purposes,
Purchaser and Seller agree to treat
71
any indemnity payment under this Agreement as an adjustment to the Purchase
Price.
SECTION 8.09. AUDIT ADJUSTMENTS RELATING TO INCOME TAXES. If as a
result of an Income Tax audit that involves any of the Acquired Companies or
their respective subsidiaries there is an adjustment to an item which results in
the Purchaser or Seller incurring a Tax detriment and the other party realizing
a corresponding Tax benefit, then the party receiving such Tax benefit will pay
to the other party the amount of such Tax benefit actually realized within 30
days, but only to the extent of such Tax detriment.
SECTION 8.10. PARENT'S GUARANTEE OF INDEMNITY. (a) In order to induce
Purchaser to enter into this Agreement, Parent hereby unconditionally and
irrevocably guarantees to Purchaser and the other Purchaser Indemnitees the full
performance by Seller of its indemnification obligations, including the prompt
and complete payment by Seller when due, and at all times thereafter, of all
amounts payable by Seller, under Article VIII of this Agreement (the "GUARANTEED
OBLIGATIONS").
(b) Parent waives any and all notice of the creation, renewal,
extension or accrual of any of the Guaranteed Obligations and notice of or proof
of reliance by Purchaser upon the provisions of this Section 8.10; and all
dealings between Seller or Parent, on the one hand, and Purchaser, on the other
hand, shall likewise conclusively be presumed to have been had or consummated in
reliance upon the provisions of this Section 8.10. Parent waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon Seller, any other guarantor or itself with respect to the Guaranteed
Obligations. The obligations of Parent under this Section 8.10 shall be
construed as a continuing, absolute and unconditional guaranty of payment (and
not of collection).
(c) Purchaser agrees that notwithstanding anything contained herein to
the contrary, except as provided in the last sentence of this Section 8.10(c),
Parent shall not be obligated to pay any Guaranteed Obligations to the extent
that Seller is not required to pay its indemnification obligations to which such
Guaranteed Obligation relates as a result of any claim of offset, counterclaim
or other defense available to Seller with respect to its indemnification
obligations under this
72
Agreement or any of the Ancillary Agreements (collectively, "SELLER DEFENSES").
In furtherance thereof, Parent shall be entitled to assert as a valid defense to
payment of the Guaranteed Obligations by Parent hereunder, any Seller Defense to
the same extent that any such Seller Defense could be asserted by Seller in any
action brought by Purchaser to enforce its rights to indemnification under this
Article VIII against Seller. Notwithstanding the foregoing provisions of this
Section 8.10(c), in no event shall any stay or discharge of the Guaranteed
Obligations as a result of any insolvency, bankruptcy, dissolution, liquidation
or reorganization of Seller or the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, Seller give rise to any
defense to payment by Parent under this Section 8.10.
(d) The obligations of Parent under this Section 8.10 shall continue
to be effective, or be reinstated, as the case may be, if at any time the
payment or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by Purchaser upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of Seller, or upon or as
a result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, Seller, all as though such payments had not been
made.
(e) No failure or delay on the part of Purchaser in the exercise of
any power, right or privilege under this Section 8.10 shall impair such power,
right or privilege by being construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other right, power or privilege.
ARTICLE IX
Non-Solicitation; Non-Competition
---------------------------------
SECTION 9.01. COVENANT NOT TO SOLICIT FOR EMPLOYMENT. For a period of
one year from and after the Closing Date, each of Seller and Parent shall not,
and shall cause each of its subsidiaries not to, solicit any director or officer
of an Acquired Company or subsidiary of an
73
Acquired Company or any of the other employees of the Acquired Companies and
their respective subsidiaries set forth in Schedule 9.01 (such directors,
officers and other employees, collectively, the "COVERED PERSONS"); PROVIDED,
HOWEVER, that the foregoing provisions shall not apply to (i) a general
advertisement or solicitation program that is not specifically targeted at the
Covered Persons, (ii) the solicitation of any Covered Person whose employment by
the applicable Acquired Company or subsidiary of an Acquired Company has been
terminated or (iii) in the case of Covered Persons who are non-employee
directors of an Acquired Company or a subsidiary of an Acquired Company, the
solicitation of such persons who no longer hold such directorship.
SECTION 9.02. COVENANT NOT TO COMPETE. Except as provided in Section
9.03, for a period of three years from and after the Closing Date, each of
Seller and Parent shall not, and shall cause its subsidiaries not to, engage,
directly or indirectly, in the business of manufacturing, marketing or selling
of inserts, tool holders, tungsten carbide powder, carbide wear products
(including rods, dies, paper knives and seal rings), high speed steel and
carbide drills and taps, and other metalworking round tools (the "BUSINESS")
within Europe and India (the "GEOGRAPHIC AREA"); PROVIDED, HOWEVER, that (i)
Seller, Parent or their respective subsidiaries may own as a passive investment,
directly or indirectly, equity or equity-linked securities of any corporation or
other entity engaged in the Business if Seller, Parent or their respective
subsidiaries do not, directly or indirectly, beneficially own in the aggregate
more than 5% of the outstanding shares of such entity; (ii) Seller, Parent or
their respective subsidiaries may own as an investment, directly or indirectly,
any instrument of indebtedness of any corporation or other entity engaged in the
Business; and (iii) Seller, Parent or their respective subsidiaries may own any
corporation or other entity engaged in the Business within the Geographic Area
if such Business within the Geographic Area accounts for less than 20% of such
entity's consolidated annual revenues or assets; PROVIDED, HOWEVER, that Seller
shall dispose of any such corporation's or other entity's Business within the
Geographic Area within one year after the acquisition by Seller of such
corporation or other entity.
SECTION 9.03. PERMITTED ACTIVITIES OF SELLER AND PARENT.
Notwithstanding anything in Section 9.02 to the
74
contrary, (A) the plastics technologies group of Parent and its subsidiaries
shall not be prevented from (i) continuing to engage in, conducting or having an
ownership interest in any business which it currently is engaging in, conducting
or in which it currently has an ownership interest (other than the Acquired
Companies and their respective subsidiaries), and any reasonable extension or
development thereof, (ii) treating the provisions of Section 9.02 as having
terminated at the time and to the extent none of Purchaser and its subsidiaries
continues to conduct in any material respect any aspect of the Business and
(iii) engaging in, conducting or having an ownership interest in any business
that supplies goods or services primarily to Seller, Parent or any of their
respective affiliates and (B) the provisions of Section 9.02 shall not apply to
the Valenite metalcutting tools business of Parent and its subsidiaries, which
is subject to the Widia Distribution Agreement and the Valenite Distribution
Agreement.
ARTICLE X
General Provisions
------------------
SECTION 10.01. Assignment. Neither this Agreement nor any of the
rights and obligations of the parties hereunder may be assigned by any of the
parties hereto without the prior written consent of each of the other parties
hereto, except that (a) Purchaser may assign its right to purchase any of the
Milacron Germany Ordinary Shares, the Widia Netherlands Ordinary Shares, the
Widia Spain Ordinary Shares, the Widia U.K. Ordinary Shares, the Widia France
Ordinary Shares and the Widia Italy Ordinary Shares, in each case, in their
entirety, hereunder to any of its direct or indirect subsidiaries in which
Purchaser holds, directly or indirectly, more than 90% of the shares of capital
stock issued and outstanding thereof without the prior written consent of
Seller, (b) Seller may assign any rights and obligations hereunder to any of the
Seller Entities without the prior written consent of Purchaser and (c) an
assignment by operation of law in connection with a merger or consolidation
shall not require the consent of the other parties hereto. Notwithstanding the
foregoing, each of Seller and Purchaser shall remain liable for all of their
respective obligations under this Agreement. Subject to the first sentence of
this Section 10.01, this Agreement shall
75
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns and no other person shall have any right,
obligation or benefit hereunder. Any attempted assignment or transfer in
violation of this Section 10.01 shall be void.
SECTION 10.02. NO THIRD-PARTY BENEFICIARIES. Except as provided in
Article VIII, this Agreement is for the sole benefit of the parties hereto and
their permitted assigns and nothing herein expressed or implied shall give or be
construed to give to any person, other than the parties hereto and such assigns,
any legal or equitable rights hereunder.
SECTION 10.03. EXPENSES. Whether or not the transactions contemplated
by this Agreement are consummated, except as otherwise expressly provided herein
each of the parties hereto shall be responsible for the payment of its own
respective costs and expenses incurred in connection with the negotiations
leading up to and the performance of its respective obligations pursuant to this
Agreement and the Ancillary Agreements, including the fees and expenses of any
attorneys, accountants, brokers or other advisors employed or retained by or on
behalf of such party. Notwithstanding anything to the contrary herein, Purchaser
shall be responsible for the payment of all (i) costs relating to the execution
and delivery of the notarial share transfer agreement with respect to the
Milacron Germany Ordinary Shares (substantially in the form set forth in Exhibit
A hereto), the title transfer documents with respect to the other Shares
(substantially in the forms set forth in Exhibits B through F hereto) and
notarized copies of this Agreement prepared in accordance with German law and
any other Applicable Law to the extent required thereby in connection with the
consummation of the transfer of the other Shares, including the fees and
expenses of any notary public in the presence of which such agreements will be
executed, and (ii) fees, costs, and expenses relating to filings with or
submissions to any Governmental Entity made in connection with the execution,
delivery and performance of this Agreement and the Ancillary Agreements or the
consummation of the Acquisition and the other transactions contemplated herein
and therein (other than the transactions contemplated in Schedule 5.15).
SECTION 10.04. NOTICES. All notices, requests, permissions, waivers
and other communications hereunder
76
shall be in writing and shall be deemed to have been duly given (a) five
business days following sending by registered or certified mail, postage
prepaid, (b) when sent, if sent by facsimile; PROVIDED that the facsimile
transmission is promptly confirmed by telephone, (c) when delivered, if
delivered personally to the intended recipient and (d) one business day
following sending by overnight delivery via an international courier service
and, in each case, addressed to a party at the following address for such party:
(i) if to Parent,
Milacron Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) if to Seller,
Milacron X.X.
X.X. Xxx 000
0000 XX Xxxxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Managing Director
Facsimile: 31 10 4450 056
with a copy to:
Milacron Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: General Counsel
Facsimile: (000) 000-0000
77
and
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(iii) if to Purchaser,
Kennametal Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx, Vice
President, Secretary and General
Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx Ingersoll Professional
Corporation
One Oxford Centre, 20th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address(es) as shall be furnished in writing by any such party
to each of the other parties hereto in accordance with the provisions of this
Section 10.04.
SECTION 10.05. HEADINGS; CERTAIN DEFINITIONS. (a) The descriptive
headings of the several Articles and Sections of this Agreement and the
Disclosure Schedule to this Agreement and the Table of Contents to this
Agreement are inserted for convenience only, do not constitute a part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement. All references herein to "Articles", "Sections", "Exhibits" or
"Schedules" shall be deemed to be references to Articles or Sections
78
hereof or Exhibits or Schedules hereto unless otherwise indicated.
(b) For all purposes hereof:
"ACQUIRED COMPANIES MATERIAL ADVERSE EFFECT" means a material adverse
effect (i) on the business, financial condition or results of operations of the
Acquired Companies and their respective subsidiaries, taken as a whole, or (ii)
on the ability of Seller to consummate the Acquisition. For purposes of this
Agreement, "Acquired Companies Material Adverse Effect" shall exclude any
effects to the extent resulting from (A) changes in the United States or foreign
economies in general, (B) changes in the Acquired Companies' and their
respective subsidiaries' industries in general and not specifically relating to
the Acquired Companies or their respective subsidiaries or (C) the execution of
this Agreement or any of the Ancillary Agreements and the consummation of the
transactions contemplated hereby or thereby.
"AFFILIATE" of any party means any person or entity controlling,
controlled by or under common control with such party.
"BUSINESS DAY" shall refer to a day, other than a Saturday or a
Sunday, on which commercial banks are not required or authorized to close in the
City of New York.
"EXCLUDED LIABILITIES" means any debt, liability, commitment or
obligation of any kind or nature whatsoever, whether due or to become due, known
or unknown, accrued or fixed, absolute or contingent, or otherwise, whether
presently in existence or arising hereafter, arising out or resulting from (i)
the assets, business, activities, employees or operations of the businesses or
divisions to be transferred (i.e., spun out) prior to the Closing from Widia
U.K., Widia France and Widia Spain, as contemplated under Section 5.15 and
further outlined in Schedule 5.15 or (ii) the consummation of the transactions
outlined in Schedule 5.15.
"(euro)" or "euro" means the single currency introduced at the start
of the third stage of European Economic and Monetary Union on January 1, 1999,
pursuant to the Treaty of Rome establishing the European Economic
79
Community, as amended by the Treaty on the European Union, signed at Maastricht
on February 7, 1992.
"INCLUDING" means including, without limitation.
"KNOWLEDGE" means (i), with respect to Seller, the actual knowledge of
Xxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxx Xxxxxxxxxxxx-Galhen, Xxxx Xxxxxx, Hendrikus van den Xxxx,
Xxxxx Xxxxxxx, Xxxxx Xxxxxxxxx or Xxxxxxxx Xxxxx or (ii), with respect to
Parent, the actual knowledge of Xxxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxx Xxxxxx or
Xxxx X'Xxxxxxx.
"ORGANIZATIONAL DOCUMENTS" means (a) in the case of a corporation, the
certificate of incorporation and the bylaws or the articles of association, as
applicable, (b) in the case of a general partnership, the partnership agreement
and any statement of partnership, (c) in the case of a limited partnership, the
limited partnership agreement and the certificate of limited partnership and (d)
in the case of any other entity, any charter or equivalent document adopted or
filed in connection with the creation, formation or organization of such entity.
"PERSON" means any individual, firm, corporation, partnership, limited
liability company, trust, joint venture, Governmental Entity or other entity.
"SUBSIDIARY" of any person means another person, an amount of voting
securities or other voting ownership or voting partnership interests of which
that are sufficient to elect at least a majority of its board of directors or
other governing body (or, if there are no such voting securities or interests,
50% or more of the equity interests of which) is owned directly or indirectly by
such first person or by another subsidiary of such first person. For the
avoidance of doubt, Widia India is a subsidiary of Milacron Germany.
SECTION 10.06. COUNTERPARTS; NOTARIZATION. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement, and shall become effective when one or more counterparts
have been signed by each of the parties hereto and delivered, in person or by
telecopier, receipt acknowledged, to the other parties hereto. This Agreement
shall be notarized by a notary public in accordance with (x) German law (I.E.,
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before a German or qualified Swiss notary public) and (y) any other Applicable
Law to the extent required thereby in connection with the consummation of the
transfer of the Shares, as promptly as practicable following the execution
hereof.
SECTION 10.07. INTEGRATED CONTRACT; EXHIBITS/SCHEDULES. This
Agreement, including the Schedules (and the Introduction thereto) and Exhibits
hereto, any written amendments to the foregoing satisfying the requirements of
Section 10.12 hereof, the Confidentiality Agreement and the Ancillary
Agreements, including the schedules and exhibits thereto, constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof and supersede any previous agreements and understandings between the
parties with respect to such matters. All Exhibits and Schedules annexed hereto
or referred to herein are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Any capitalized terms used in any
Schedule or Exhibit but not otherwise defined therein shall be defined as set
forth in this Agreement. There are no restrictions, promises, representations,
warranties, agreements or undertakings of any party hereto with respect to the
transactions contemplated by this Agreement, the Confidentiality Agreement or
the Ancillary Agreements other than those set forth herein or therein or in any
other document required to be executed and delivered hereunder or thereunder. In
the event of any conflict between the provisions of this Agreement (including
the Schedules (and the Introduction thereto) and Exhibits hereto), on the one
hand, and the provisions of the Confidentiality Agreement or the Ancillary
Agreements (including the schedules and exhibits thereto), on the other hand,
the provisions of this Agreement shall control.
SECTION 10.08. SEVERABILITY; ENFORCEMENT. The invalidity of any
portion hereof shall not affect the validity, force or effect of the remaining
portions hereof. If it is ever held that any restriction hereunder is too broad
to permit enforcement of such restriction to its fullest extent, each party
agrees that a court of competent jurisdiction may enforce such restriction to
the maximum extent permitted by law, and each party hereby consents and agrees
that such scope may be judicially modified accordingly in any proceeding brought
to enforce such restriction.
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SECTION 10.09. GOVERNING LAW. This Agreement and any disputes arising
under or related thereto (whether for breach of contract, tortious conduct or
otherwise) shall be governed and construed in accordance with the laws of the
State of New York, without reference to its conflicts of law principles.
SECTION 10.10. CONSENT TO JURISDICTION. Each party irrevocably submits
to the exclusive jurisdiction of (a) the Supreme Court of the State of New York,
New York County, and (b) the United States District Court for the Southern
District of New York, for the purposes of any suit, action or other proceeding
arising out of this Agreement, any Ancillary Agreement or any transaction
contemplated hereby or thereby. Each party agrees to commence any such action,
suit or proceeding either in the United States District Court for the Southern
District of New York or if such suit, action or other proceeding may not be
brought in such court for jurisdictional reasons, in the Supreme Court of the
State of New York, New York County. Each party further agrees that service of
any process, summons, notice or document by U.S. registered mail to such party's
respective address set forth above shall be effective service of process for any
action, suit or proceeding in New York with respect to any matters to which it
has submitted to jurisdiction in this Section 10.10. Each party irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement, any Ancillary Agreement or the
transactions contemplated hereby and thereby in (i) the Supreme Court of the
State of New York, New York County, or (ii) the United States District Court for
the Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
SECTION 10.11. WAIVER OF JURY TRIAL. Each party hereby waives to the
fullest extent permitted by Applicable Law, any right it may have to a trial by
jury in respect to any litigation directly or indirectly arising out of, under
or in connection with this Agreement, any Ancillary Agreement, any transaction
contemplated hereby or any dispute relating hereto. Each party (a) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party
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would not, in the event of litigation, seek to enforce the foregoing waiver and
(b) acknowledges that it and the other parties hereto have been induced to enter
into this Agreement and the Ancillary Agreements, as applicable, by, among other
things, the mutual waivers and certifications in this Section 10.11.
SECTION 10.12. AMENDMENTS AND WAIVERS. This Agreement may be amended,
modified, superseded or canceled and any of the terms, covenants,
representations, warranties or conditions hereof may be waived only by an
instrument in writing signed by or on behalf of each of the parties hereto or,
in the case of a waiver, by or on behalf of the party waiving compliance.
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IN WITNESS WHEREOF, each of Parent, Seller and Purchaser has duly
executed this Agreement as of the date first written above.
MILACRON INC.,
by /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman, President, & Chief Executive
Officer
MILACRON B.V.,
by /s/ X. Xxx Xxxxxxxx
---------------------------
Name: X. Xxx Xxxxxxxx
Title: Managing Director
KENNAMETAL INC.,
by /s/ Xxxxxxx X. Xxxx, Xx.
---------------------------
Name: Xxxxxxx X. Xxxx, Xx.
Title: Vice President, Chief Administrative
Officer
