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Exhibit 2.2
Execution Copy
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AMENDED AND RESTATED
PRODUCT LINE PURCHASE AGREEMENT
DATED AS OF JULY 30, 2001
AND
EFFECTIVE AS OF MAY 7, 2001
BETWEEN
ARMKEL, LLC
AND
CHURCH & XXXXXX & CO., INC.
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Execution Copy
TABLE OF CONTENTS
Page
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ARTICLE I
ASSETS.......................................................................................................... 1
SECTION 1.1. PL Purchased Assets..........................................................1
SECTION 1.2. PL Excluded Assets...........................................................2
ARTICLE II LIABILITIES..........................................................................................3
SECTION 2.1. PL Assumed Liabilities.......................................................3
SECTION 2.2. PL Excluded Liabilities......................................................3
ARTICLE III CONSIDERATION FOR TRANSFER..........................................................................4
SECTION 3.1. Purchase Price...............................................................4
SECTION 3.2. Allocation of Purchase Price.................................................4
SECTION 3.3. Working Capital Adjustment...................................................4
ARTICLE IV CLOSING..............................................................................................4
SECTION 4.1. Purchase and Sale; Assumption and Acceptance.................................4
SECTION 4.2. Closing Date.................................................................5
SECTION 4.3. Delivery and Payment by PL Buyer.............................................5
SECTION 4.4. Delivery and Payment by Armkel...............................................5
ARTICLE V REPRESENTATIONS AND WARRANTIES OF ARMKEL..............................................................5
SECTION 5.1. Organization.................................................................5
SECTION 5.2. Authority Relative to this Agreement.........................................5
SECTION 5.3. Consents and Approvals; No Violations........................................6
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PL BUYER...........................................................6
SECTION 6.1. Organization.................................................................6
SECTION 6.2. Authority Relative to this Agreement.........................................6
SECTION 6.3. Consents and Approvals; No Violations........................................6
SECTION 6.4. Funds........................................................................7
ARTICLE VII COVENANTS; INDEMNIFICATION..........................................................................7
SECTION 7.1. Employees and Benefits.......................................................7
SECTION 7.2. Additional Agreements; Further Assurances....................................7
SECTION 7.3. Arrid Manufacturing Agreement................................................8
SECTION 7.4. Assignment of Decatur Manufacturing Agreement................................8
SECTION 7.5. Indemnification..............................................................8
SECTION 7.6. No Solicitation and No Hiring................................................9
ARTICLE VIII CONDITIONS TO CLOSING..............................................................................9
SECTION 8.1. Conditions to Each Party's Obligation to Closing.............................9
ARTICLE IX TERMINATION; AMENDMENT; WAIVER......................................................................10
SECTION 9.1. Termination.................................................................10
SECTION 9.2. Effect of Termination.......................................................10
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Execution Copy
SECTION 9.3. Amendment....................................................................10
SECTION 9.4. Waiver.......................................................................10
ARTICLE X MISCELLANEOUS.........................................................................................10
SECTION 10.1. Entire Agreement; Assignment.................................................10
SECTION 10.2. Validity; Determinations.....................................................10
SECTION 10.3. Notices......................................................................10
SECTION 10.4. Governing Law and Venue; Waiver of Jury Trial................................11
SECTION 10.5. Descriptive Headings.........................................................12
SECTION 10.6. Parties in Interest..........................................................12
SECTION 10.7. Expenses.....................................................................12
SECTION 10.8. Survival.....................................................................12
SECTION 10.9. Bulk Transfer Laws...........................................................12
SECTION 10.10. Counterparts.................................................................12
SECTION 10.11. Enforcement..................................................................12
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AMENDED AND RESTATED
PRODUCT LINE PURCHASE AGREEMENT
This AMENDED AND RESTATED PRODUCT LINE PURCHASE AGREEMENT (this
"AGREEMENT"), dated as of July 30, 2001 and effective as of May 7, 2001, is
entered into by and between Armkel, LLC, a Delaware limited liability company
("ARMKEL"), and Church & Xxxxxx Co., Inc., a Delaware corporation ("PL BUYER").
Capitalized terms used but not defined in this Agreement have the respective
meanings set forth in the Asset Purchase Agreement, dated as of May 7, 2001, as
amended, by and between Xxxxxx-Xxxxxxx, Inc., a Delaware corporation (the
"COMPANY"), and Armkel, (the "ASSET PURCHASE AGREEMENT"). For purposes of this
Agreement, "Armkel" shall include any Subsidiary of Armkel.
RECITALS
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company and Armkel have executed and delivered the Asset Purchase
Agreement, providing for, among other things, the sale, transfer and assignment
to Armkel of the Purchased Assets, and the assignment and transfer to Armkel,
and Armkel's assumption of, the Assumed Liabilities;
WHEREAS, included within the Purchased Assets and Assumed Liabilities
are assets and liabilities relating to (i) the Arrid Extra Dry, Arrid XX and
Lady's Choice anti-perspirant and deodorant product lines of the Business for
the United States and Canadian markets (the "APD PRODUCT LINES") and (ii) the
Xxxxxxx Xxx division of pet products (the "XXXXXXX XXX PRODUCT LINE," and
collectively with the APD Product Lines, the "PRODUCT LINES BUSINESS"); and
WHEREAS, (i) Armkel desires to sell, transfer and assign to PL Buyer,
and PL Buyer desires to purchase from Armkel, the Purchased Assets which relate
primarily to the Product Lines Business, and (ii) Armkel desires to assign and
transfer to PL Buyer, and PL Buyer desires to accept and assume, the Assumed
Liabilities which relate primarily to the Product Lines Business, in each case
immediately following the consummation of the transactions contemplated by the
Asset Purchase Agreement and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained and
intending to be legally bound hereby, Armkel and PL Buyer hereby agree as
follows:
ARTICLE I
ASSETS
1.1 PL Purchased Assets. Subject to Section 1.2 below, the "PL
PURCHASED ASSETS" shall consist of all of Armkel's entire right, title and
interest in and to the following, wherever located, but only to the extent they
relate primarily to the Product Lines Business (with the subsections below
intended to correlate with the subsections contained in Section 2.1 of the Asset
Purchase Agreement):
(a) [intentionally omitted]
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(b) the Real Property, including, without limitation, the
Winsted, Connecticut facility located at 000 Xxxxxxx Xxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxx;
(c) the Tangible Personal Property, including, without
limitation, all identifiable and movable machinery and equipment for the Product
Line Business;
(d) all warranties and all claims in respect of deposits,
prepayments and refunds and rights of set off against third parties;
(e) any and all rights of an insured party in respect of
insurance claims, all to the extent provided in the Insurance Claims Agreement;
(f) all Permits, Orders and similar rights obtained from
Governmental Entities, but only to the extent transferable by their terms;
(g) copies of all books, records, ledgers, files, documents,
correspondence, customer files, supplier lists, parts lists, vendor lists,
lists, plats, architectural plans, drawings and specifications, creative
materials, advertising and promotional materials, studies, reports, and other
similar printed or written commercial materials;
(h) the Contracts, including without limitation, to the extent
they relate primarily to the Product Lines Business, those Contracts set forth
in Section 6.4 of the Disclosure Letter and the Consultancy Agreements listed in
Section 6.7(a) of the Disclosure Letter and, except for any collective
bargaining agreements with respect to the Cranbury, New Jersey operations, any
agreement to which an Available Employee is a party;
(i) all accounts and notes receivable;
(j) the Business-Related Intellectual Property;
(k) the tangible or physical materials embodying all computer
software, product literature and advertising material, specifications, credit
information, inventory, marketing, personnel, financial, title and other
documents, data and similar information and material, however stored;
(l) [intentionally omitted]
(m) [intentionally omitted]
(n) [intentionally omitted]; and
(o) all other Purchased Assets that relate primarily to the
Product Lines Business.
1.2 PL Excluded Assets. The PL Purchased Assets shall not include any
Purchased Assets other than the assets specifically listed or described in
Section 1.1 and, without limiting the generality of the foregoing, shall
expressly exclude the following assets (collectively, the "PL EXCLUDED ASSETS"),
which shall not be sold or transferred to PL Buyer:
(a) The Arrid Extra Dry, Arrid XX and Lady's Choice
anti-perspirant and deodorant product lines of the Business for the U.K. and
Australian markets;
(b) Cash and cash equivalents held in the Transferred
Subsidiaries at Closing; and
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(c) Armkel's rights under this Agreement, the Asset Purchase
Agreement and the Ancillary Agreements.
ARTICLE II
LIABILITIES
2.1 PL Assumed Liabilities. Except as otherwise specifically set forth
in Section 2.2 below, PL Buyer shall assume all the Assumed Liabilities that
primarily arise or have arisen out of, in respect of or as the result of the
ownership, operation or transfer of the PL Purchased Assets or the Product Lines
Business, including (without limiting the generality of the foregoing) the
following (collectively, the "PL ASSUMED LIABILITIES") (with the subsections
below intended to correlate with the subsections contained in Section 3.1 of the
Asset Purchase Agreement):
(a) [intentionally omitted];
(b) the Liabilities assumed by Armkel under any Contracts that
constitute PL Purchased Assets;
(c) the Liabilities assumed by Armkel for any Infringement or
alleged Infringement of the rights of any Person in connection with
Business-Related Intellectual Property that constitutes PL Purchased Assets;
(d) the Liabilities assumed by Armkel in respect of products
manufactured, marketed, distributed or sold by or as part of the operation of
the Product Lines Business prior to the Closing Date, including product
liability and negligence claims and other Liabilities for refunds, adjustments,
allowances, repairs, exchanges, returns and warranty, merchantability and other
claims;
(e) the Liabilities assumed by Armkel under or relating to
Environmental Law or Hazardous Substances, which Liabilities include, but are
not limited to, certain Liabilities under the Connecticut Real Property Transfer
Act and the New Jersey Industrial Site Recovery Act;
(f) the transfer taxes, conveyance taxes and sales taxes
incurred by the Company or Armkel in connection with the Transactions that
Armkel assumed under the Asset Purchase Agreement;
(g) [intentionally omitted];
(h) the Liabilities of Armkel under the arrangements
contemplated by Section 8.6 of the Asset Purchase Agreement;
(i) [intentionally omitted]
(j) all Liabilities assumed by Armkel relating to any third
party Claims;
(k) the liabilities assumed by PL Buyer under Section 7.1
hereof.
2.2 PL Excluded Liabilities. Section 2.1 above notwithstanding, PL
Buyer shall not be responsible for or assume any Assumed Liabilities of Armkel
(i) that are not PL Assumed Liabilities or (ii) that primarily arise or have
arisen out
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of, in respect of or as the result of the ownership, operation or transfer of PL
Excluded Assets and, without limiting the generality of the foregoing, shall
expressly exclude the following (collectively, the "PL EXCLUDED LIABILITIES"):
(a) Obligations under the collective bargaining agreements and
related pension plans for Cranbury, New Jersey;
(b) Obligations under all Canadian pension plans;
(c) Obligations for post-retirement health care in the U.S.
and Canada;
(d) Change of control agreements for Xxxxxx X. Xxxxxxxx,
Xxxxxx X. Xxxxxx, Xxxxxx X. X. Huns and Xxxxxxx X. Xxxxx; and
(e) Notes payable and long-term debt in the Transferred
Subsidiaries.
ARTICLE III
CONSIDERATION FOR TRANSFER
3.1 Purchase Price. The purchase price for the (i) APD Product Lines is
$121,000,000 and (ii) the Xxxxxxx Xxx Product Line is $7,500,000 (the total of
(i) and (ii), the "PL PURCHASE PRICE").
3.2 Allocation of Purchase Price. For all purposes, including tax
purposes, the parties shall allocate the PL Purchase Price plus the PL Assumed
Liabilities consistent with the summary allocation schedule provided in Section
4.2 of the Disclosure Letter, unless otherwise required by any federal, state,
local or foreign taxing authority.
3.3 Net Working Capital Adjustment. To the extent that the net working
capital of the Product Lines Business at Closing (as defined below) is different
than the net working capital shown on the balance sheet for the Product Lines
Business at Xxxxx 00, 0000, Xxxxxx and PL Buyer shall agree on an appropriate
adjustment to the Purchase Price. In addition, PL Buyer shall indemnify Armkel
for 17.38% of the total amount of any Purchase Price Adjustment paid by Armkel
pursuant to Section 4.3 of the Asset Purchase Agreement, which percentage is
equal to the PL Purchase Price divided by the Purchase Price under the Asset
Purchase Agreement. Armkel shall pay to PL Buyer 17.38% of the total amount of
any Purchase Price Adjustment received by Armkel pursuant to Section 4.3 of the
Asset Purchase Agreement.
ARTICLE IV
CLOSING
4.1 Purchase and Sale; Assumption and Acceptance. At the closing of the
transactions contemplated by this Agreement (the "CLOSING"), on the terms and
subject to the conditions set forth in this Agreement, (i) Armkel shall sell,
transfer and assign, or cause its Subsidiaries to sell, transfer and assign, to
PL Buyer, and PL Buyer shall purchase from Armkel, or its respective
Subsidiaries, all of the PL Purchased Assets, (ii) Armkel shall assign and
transfer, or cause its Subsidiaries to assign and transfer, to PL Buyer, and PL
Buyer shall accept and assume, and shall thereafter perform and discharge when
due, and shall hold Armkel and its
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Affiliates harmless from, all of the PL Assumed Liabilities, (iii) Armkel shall
thereafter perform and discharge when due, and shall hold PL Buyer and its
Affiliates harmless from, all of the Assumed Liabilities that constitute PL
Excluded Liabilities, and (iv) PL Buyer and Armkel shall effect the deliveries
and payments set forth in Sections 4.3 and 4.4.
4.2 Closing Date. Subject to the conditions set forth in this
Agreement, the Closing shall occur at the offices of Xxxxxxxx & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, immediately after the closing of the
transactions contemplated by the Asset Purchase Agreement (such closing, the
"APA CLOSING"), or at such later time, place and date as Armkel and PL Buyer
shall agree (the "CLOSING DATE").
4.3 Delivery and Payment by PL Buyer. At the Closing, PL Buyer shall
deliver to Armkel the following.
(a) the PL Purchase Price, by wire transfer of immediately
available funds to an account previously designated by Armkel;
(b) such assumptions in writing as may be required to
effectively assign and transfer any Contracts or any other of the PL Purchased
Assets or PL Assumed Liabilities that may be assigned without the consent of the
counterparty if so assumed by PL Buyer; and
(c) such other customary instruments of assumption, filings or
documents, in form and substance reasonably satisfactory to Armkel, as may be
required to give effect to this Agreement.
4.4. Delivery and Payment by Armkel. At the Closing, Armkel shall
deliver to PL Buyer the following.
(a) customary deeds for commercial transactions of the same
type as the Transactions and reasonably sufficient to enable PL Buyer's title
insurance company to issue title insurance in respect of the Owned Real Property
that constitutes PL Purchased Assets;
(b) assignments of the Leased Real Property that constitutes
PL Purchased Assets in recordable form to the extent necessary;
(c) all transferable Permits received by Armkel at the APA
Closing or thereafter pertaining to the PL Purchased Assets or the Product Lines
Business; and
(d) such other customary instruments of assumption, filings or
documents, in form and substance reasonably satisfactory to PL Buyer, as may be
required to give effect to this Agreement.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ARMKEL
Armkel hereby represents and warrants to PL Buyer:
5.1 Organization and Qualification. Armkel is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware and has all limited liability company power and authority
to own, lease and operate its properties and to carry on its businesses as now
being conducted.
5.2 Authority Relative to this Agreement. The execution, delivery and
performance by Armkel of this Agreement and the consummation by Armkel of the
transactions contemplated hereby are within Armkel's limited liability company
powers and have been duly authorized by all requisite action on the part of
Armkel. This Agreement has been duly and validly executed by Armkel and
constitutes the legal, valid and binding agreement of Armkel, enforceable
against it in accordance with its terms, except as may be limited by the
Bankruptcy and Equity Exception.
5.3 Consents and Approvals; No Violations.
(a) Except as set forth in Schedule 5.3 to this Agreement or
as may be required under the HSR Act, no filing with or notice to and no permit,
authorization, consent or approval of any Governmental Entity is necessary for
the execution and delivery by Armkel of this Agreement or the consummation by
Armkel of the transactions contemplated hereby, except where the failure to
obtain such permits, authorizations, consents or approvals or to make such
filings or give such notice would not have a material adverse effect on Armkel.
(b) Neither the execution, delivery and performance of this
Agreement by Armkel nor the consummation by Armkel of the transactions
contemplated hereby will (i) conflict with or result in any breach of any
provision of the Certificate of Formation or Limited Liability Company Agreement
of Armkel, (ii) result in a violation or breach of or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration or lien) under any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to which
Armkel is a party or by which it or its properties or assets may be bound or
(iii) violate any order, writ, injunction, decree, law, statute, rule or
regulation applicable to Armkel or any of its properties or assets except, in
the case of (ii) or (iii), for violations, breaches or defaults which would not
have a material adverse effect on Armkel; provided, however, that no
representation or warranty is made hereunder with respect to any of the
Purchased Assets, the Assumed Liabilities or the Business or any of the
transactions contemplated by the Asset Purchase Agreement or the Ancillary
Agreements.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PL BUYER
PL Buyer hereby represents and warrants to Armkel as follows:
6.1 Organization. PL Buyer is duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
power
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and authority to own, lease and operate its properties and to carry on its
businesses as now being conducted.
6.2 Authority Relative to this Agreement. PL Buyer has all necessary
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the board of directors of PL Buyer and no
other corporate proceedings on the part of PL Buyer are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by PL Buyer and
constitutes a valid, legal and binding agreement of PL Buyer, enforceable
against PL Buyer in accordance with its terms, except as may be limited by the
Bankruptcy and Equity Exception.
6.3 Consents and Approvals; No Violations.
(a) Except as set forth in Schedule 6.3 to this Agreement or
as may be required under the HSR Act, no filing with or notice to and no permit,
authorization, consent or approval of any Governmental Entity is necessary for
the execution and delivery by PL Buyer of this Agreement or the consummation by
PL Buyer of the transactions contemplated hereby, except where the failure to
obtain such permits, authorizations, consents or approvals or to make such
filings or give such notice would not have a material adverse effect on PL
Buyer.
(b) Neither the execution, delivery and performance of this
Agreement by PL Buyer nor the consummation by PL Buyer of the transactions
contemplated hereby will (i) conflict with or result in any breach of any
provision of the Certificate of Incorporation or Bylaws of PL Buyer, (ii) result
in a violation or breach of or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration or lien) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which PL Buyer is a party or by
which its properties or assets may be bound or (iii) violate any order, writ,
injunction, decree, law, statute, rule or regulation applicable to PL Buyer or
its properties or assets except, in the case of (ii) or (iii), for violations,
breaches or defaults which would not have a material adverse effect on PL Buyer.
6.4 Funds. PL Buyer will have at the Closing the necessary funds to pay
the PL Purchase Price and consummate the transactions contemplated hereby.
ARTICLE VII
COVENANTS; INDEMNIFICATION
7.1 Employees and Benefits. (a) Administrative and Non-Production
Employees. PL Buyer agrees, as of the Closing Date or as soon thereafter as
administratively feasible, to make employment offers, consistent with Article IX
of the Asset Purchase Agreement, to those Transferred Employees employed in the
Product Lines Business, other than employees engaged in production and quality
control activities under the Arrid Manufacturing Agreement, dated as of the
Closing Date, between PL Buyer and Armkel (the "ARRID MANUFACTURING AGREEMENT"),
that it wishes to employ. PL Buyer hereby acknowledges and agrees that it will
assume and honor the obligations assumed by Armkel under Article IX of the Asset
Purchase Agreement with respect to those Transferred Employees employed in the
Product Lines Business who accept its employment offer; provided, to the extent
any such Transferred Employee is terminated by PL Buyer
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prior to December 31, 2002, Armkel shall be responsible for the severance
obligations and liabilities with respect to such Transferred Employee, except to
the extent such liabilities relate to actions taken by PL Buyer after the
Closing Date (other than the termination itself).
(b) Benefits Plans. As of the Closing Date, PL Buyer shall
make available to Armkel's employees participation in various employee benefit
plans sponsored by PL Buyer. To the extent that Armkel decides to participate in
such plans, it shall contribute directly to the insurance company or trust
funding such plan, or shall pay and reimburse PL Buyer, for all costs incurred
with respect to its employees' participation in such plans, including an
allocable portion of the applicable plan administration costs. Armkel shall
indemnify and hold PL Buyer harmless from Armkel's proportionate share of any
liability which results from the fact that its participation in such plans is
purported to render any such plan a multiple employer plan or a multiple
employer welfare arrangement.
7.2 Additional Agreements; Further Assurances.
(a) Subject to the terms and conditions herein provided, each
of the parties hereto agrees to use its reasonable best efforts to take or cause
to be taken all action and to do or cause to be done all things reasonably
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, (i) contesting any legal proceeding challenging
the transactions contemplated hereby and (ii) executing any additional
instruments necessary to consummate the transactions contemplated hereby.
(b) Following the date of this Agreement, and continuing
during the period after the Closing, Armkel and PL Buyer will use reasonable
best efforts to identify PL Excluded Assets and PL Excluded Liabilities held by
PL Buyer and PL Purchased Assets and PL Assumed Liabilities held by Armkel. From
time to time, whether at or after the Closing, (i) Armkel will execute and
deliver, and will cause its Subsidiaries to execute and deliver, such further
instruments of conveyance, transfer and assignment and take such other action as
PL Buyer may reasonably request to more effectively convey and transfer to PL
Buyer any of the PL Purchased Assets as contemplated in this Agreement and to
have Armkel retain the PL Excluded Liabilities as contemplated in this
Agreement, and (ii) PL Buyer will execute and deliver such further instruments
and take such other action as Armkel may reasonably request to more effectively
assume the PL Assumed Liabilities as contemplated in this Agreement. Pending
receipt of any Delayed Consents or if such Delayed Consents are not obtained,
the parties shall cooperate with each other in any reasonable and lawful
arrangements, effectively transferring to PL Buyer from and after the Closing,
the rights and benefits of, and entitlements to exercise Armkel's rights under,
and effectively causing PL Buyer to assume all Assumed Liabilities with respect
to, the PL Purchased Assets and operations of the Product Lines Business as if
such assets and operations had been transferred by Armkel to PL Buyer at Closing
and any Liabilities associated with the arrangements specifically established by
PL Buyer and Armkel pursuant to this Section 7.2.
(c) PL Buyer shall pay all recording and filing fees and any
other costs associated with transferring and recording of the transfer of any
Business Intellectual Property related to the Product Lines Business.
7.3 Arrid Manufacturing Agreement. At Closing, Armkel and PL Buyer will
enter into the Arrid Manufacturing Agreement to provide for certain
manufacturing services with respect to the APD Product Lines.
7.4 Assignment of Decatur Manufacturing Agreement. At Closing, Armkel
will assign to PL Buyer
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all of Armkel's rights and obligations under the Decatur Manufacturing
Agreement, in accordance with Section 9.12 of the Decatur Manufacturing
Agreement, with respect to the Xxxxxxx Xxx Product Line.
7.5 Indemnification.
(a) From and after the Closing, PL Buyer shall indemnify and
hold Armkel, its directors, officers, employees, agents, representatives,
Affiliates, successors and permitted assigns harmless from any Liabilities to
the extent such Liabilities constitute PL Assumed Liabilities, including all
costs and expenses (legal, accounting or otherwise) relating thereto or incurred
in connection therewith.
(b) From and after the Closing, Armkel shall indemnify and
hold PL Buyer, its directors, officers, employees, agents, representatives,
Affiliates, successors and permitted assigns harmless from any Liabilities to
the extent such Liabilities constitute PL Excluded Liabilities, including all
costs and expenses (legal, accounting or otherwise) relating thereto or incurred
in connection therewith.
(c) In connection with entering into the Asset Purchase
Agreement, the Company and Armkel will enter into an Indemnification Agreement
at the APA Closing (the "INDEMNIFICATION AGREEMENT"), providing for, among other
things, the Company's indemnification of Armkel for any Liabilities that
constitute Excluded Liabilities, and Armkel's indemnification of the Company for
any Liabilities that constitute Assumed Liabilities. The parties hereto agree
that (i) to the extent that any Liabilities acquired by or asserted against PL
Buyer constitute Excluded Liabilities under the Asset Purchase Agreement, Armkel
will assert a claim for indemnification under Section 2.2 of the Indemnification
Agreement, in accordance with the procedures contained therein, and will use its
best efforts to pass on to PL Buyer all of the benefits of the Indemnification
Agreement running to Armkel with respect to such claim, and (ii) to the extent
that any Liabilities retained by or asserted against the Company after the
Closing constitute PL Assumed Liabilities for which the Company makes a claim
against Armkel under Section 2.1 of the Indemnification Agreement, PL Buyer
shall indemnify and hold Armkel harmless for such PL Assumed Liabilities.
(d) In Section 2.1 of the Indemnification Agreement, Armkel
will agree to indemnify the Company for 60% of any Liability arising out of or
relating to a Transaction Claim, as defined in the Indemnification Agreement. PL
Buyer agrees to indemnify Armkel for 17.38% of the amount of the indemnity owing
from Armkel to the Company for an indemnifiable Transaction Claim, which
percentage is equal to the PL Purchase Price divided by the Purchase Price under
the Asset Purchase Agreement.
(e) The procedures contained in Section 2.3 and 2.5 of the
Indemnification Agreement are deemed incorporated herein by reference and shall
govern any claim made by a party hereto for indemnification under this Section
7.5.
7.6 No Solicitation and No Hiring. During the term of the Management
Services Agreement, dated as of the Closing Date, between PL Buyer and Armkel
(the "Management Services Agreement"), Armkel and its Affiliates shall not
directly or indirectly solicit for employment or hire as an employee or
consultant, any employees of PL Buyer or its Affiliates unless such employee's
employment is earlier terminated by PL Buyer. During the term of the Management
Services Agreement, PL Buyer and its Affiliates shall not directly or indirectly
solicit for employment or hire as an employee or consultant, any employees of
Armkel or its Affiliates unless such employee's employment is earlier terminated
by Armkel. Notwithstanding the foregoing, this Section 7.6 shall not prevent
either PL Buyer or Armkel (or any of their respective Affiliates or any
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Person acting on their behalf) from conducting general searches for employees by
use of advertisements or the media that are not directly targeted at the
employees of the other party.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1. Conditions to Each Party's Obligation to Closing. The respective
obligations of each party hereto to effect the transactions contemplated by this
Agreement are subject to the satisfaction at or prior to the Closing Date of the
following conditions:
(a) no statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or enforced
by any Governmental Entity which prohibits, restrains, enjoins or restricts the
consummation of the transactions contemplated hereby;
(b) any waiting period applicable to the transactions
contemplated hereby under the HSR Act shall have terminated or expired; and
(c) the APA Closing shall have occurred.
ARTICLE IX
TERMINATION; AMENDMENT; WAIVER
9.1 Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing Date by
mutual written consent of PL Buyer and Armkel. In addition, this Agreement shall
be terminated and the transactions contemplated hereby shall be abandoned upon
termination of the Asset Purchase Agreement pursuant to Article XI thereof.
9.2 Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 9.1, this Agreement shall
forthwith become void and have no effect without any liability on the part of
any party hereto or its Affiliates, directors, officers or stockholders. Nothing
contained in this Section 9.2 shall relieve any party from liability for any
breach of this Agreement.
9.3 Amendment. This Agreement may be amended only by an instrument in
writing signed on behalf of the parties hereto.
9.4 Waiver. The conditions to each of the parties' obligations to
consummate the transactions contemplated hereunder are for the sole benefit of
such party and may be waived by such party in whole or in part to the extent
permitted by applicable law.
ARTICLE X
MISCELLANEOUS
10.1 Entire Agreement; Assignment. This Agreement constitutes the
entire agreement between the parties hereto with respect to
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the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. This Agreement shall not be assigned by operation of law
or otherwise; provided however, that PL Buyer may assign any or all of its
rights and obligations under this Agreement to any wholly owned subsidiary of PL
Buyer, but no such assignment shall relieve PL Buyer of its obligations
hereunder if such assignee does not perform such obligations.
10.2 Validity; Determinations.
(a) If any provision of this Agreement or the application
thereof to any person or circumstance is held invalid or unenforceable, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby, and to such end the
provisions of this Agreement are agreed to be severable.
(b) For purposes of this Agreement, determinations to be made
by Armkel hereunder shall be made as directed solely by Xxxxx & Company L.P.
acting in a manner which it reasonably believes is in the best interests of
Armkel.
10.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
or by registered or certified mail (postage prepaid, return receipt requested)
to each other party as follows:
if to PL Buyer: Church & Xxxxxx Co., Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
if to Armkel, to: Armkel, LLC
c/o Church & Xxxxxx Co., Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
and:
Xxxxx & Company, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Telecopier: (000) 000-0000
Attention: General Counsel
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
10.4 Governing Law and Venue; Waiver of Jury Trial.
(a) This Agreement and any disputes, claims or controversies
arising from or relating to this Agreement shall be deemed to be made in and in
all respects shall be interpreted, construed and
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governed by and in accordance with the law of the State of New York without
regard to the conflict of law principles thereof. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of New York and the
Federal courts of the United States of America located in the County of New
York, New York solely in respect of the interpretation and enforcement of the
provisions of this Agreement and the transactions contemplated thereby, and
hereby waive, and agree not to assert as a defense in any action, suit or
proceeding for the interpretation or enforcement hereof that it is not subject
thereto or that such action, suit or proceeding may not be brought or is not
maintainable in said courts or that the venue thereof may not be appropriate or
that this Agreement may not be enforced in or by such courts, and the parties
hereto irrevocably agree that all Claims shall be heard and determined in such a
New York State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such Claim by certified mail in the manner provided in
Section 10.3 or in such other manner as may be permitted by law shall be valid
and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 10.4.
10.5 Descriptive Headings. The descriptive headings herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
10.6 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its successors and
permitted assigns.
10.7 Expenses. Except as otherwise agreed, each of the parties hereto
will bear all legal, accounting, investment banking and other expenses incurred
by it or on its behalf in connection with the transactions contemplated by this
Agreement, whether or not such transactions are consummated.
10.8 Survival of Representations. The representations and warranties of
the parties contained herein shall not survive the Closing or the termination of
this Agreement.
10.9 Bulk Transfer Laws. The parties waive compliance with the
requirements of the bulk sales laws of any jurisdiction in connection with the
transactions contemplated hereby.
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10.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
10.11 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
[signatures on following page]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed on its behalf as of the day and year first above written.
ARMKEL, LLC
By: Church & Xxxxxx Co., Inc.
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President and
Chief Financial Officer
By: Xxxxx & Company, L.P.
By: Xxxxx & Companies, Inc.,
its general partner
By:/s/ Xxxxx X. Xxxxxxx, XX
-----------------------------
Name: Xxxxx X. Xxxxxxx, XX
Title: V.P. & General Counsel
CHURCH & XXXXXX CO., INC.
By:/s/ Xxx Xxxxx
------------------------
Name: Xxx Xxxxx
Title: Vice-President and Chief
Financial Officer
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PLPA AMENDMENT NO. 1
PLPA Amendment, dated as of September 28, 2001 and effective
as of May 7, 2001, (this "Amendment") amending that certain Amended and Restated
Product Line Purchase Agreement, dated as of July 30, 2001 and effective as of
May 7, 2001, by and between Armkel, LLC, and Church & Xxxxxx & Co., Inc.
WHEREAS, the parties desire to amend the Amended and Restated
Product Line Purchase Agreement as set forth herein.
NOW THEREFORE, in connection with the Amended and Restated
Product Line Purchase Agreement, the transactions contemplated thereunder and
the terms hereof, and in accordance with Section 9.3 and 10.1 of the Amended and
Restated Product Line Purchase Agreement, the parties agree as follows:
1. Amendment. The text of Section 7.1(a) of the Amended and
Restated Product Line Purchase Agreement is hereby deleted in its entirety and
in its place is added:
"Administrative and Non-Production Employees. PL Buyer agrees,
as of the Closing Date or as soon thereafter as
administratively feasible, to make employment offers,
consistent with Article IX of the Asset Purchase Agreement, to
those Transferred Employees employed in the Product Lines
Business, other than employees engaged in production and
quality control activities under the Arrid Manufacturing
Agreement, dated as of the Closing Date, between PL Buyer and
Armkel (the "ARRID MANUFACTURING AGREEMENT"), and other
Transferred Employees or Transition Employees that it wishes
to employ. PL Buyer hereby acknowledges and agrees that it
will assume and honor the obligations assumed by Armkel under
Article IX of the Asset Purchase Agreement with respect to
those Transferred Employees or Transition Employees who accept
its employment offer; provided, to the extent any such
Transferred Employee or Transition Employee is terminated by
PL Buyer prior to December 31, 2002, Armkel shall be
responsible for the severance obligations and liabilities with
respect to such Transferred Employee or Transition Employee,
except to the extent such liabilities relate to actions taken
by PL Buyer after the Closing Date (other than the termination
itself)."
2. Counterparts. This Amendment may be executed in any number
of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same
agreement.
3. Governing Law And Venue; Waiver Of Jury Trial. This
amendment shall be governed by and construed in accordance with the laws
stipulated in section 10.4 of the Amended and Restated Product Line Purchase
Agreement applicable thereto and all disputes hereunder shall be brought and
resolved in the venue and in the manner stipulated in section 10.4 of the
amended and restated product line purchase agreement applicable thereto.
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4. Definitions. Capitalized terms used but not defined herein
shall have their respective meanings set forth in the Amended and Restated
Product Line Purchase Agreement.
5. Continuing Effect of the Amended and Restated Product Line
Purchase Agreement. Except as expressly modified hereby, the Amended and
Restated Product Line Purchase Agreement shall continue in full force and effect
in accordance with its terms.
6. Effective Date of this Amendment. This Amendment shall be
effective as of May 7, 2001.
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IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
duly executed on its behalf as of the day and year first written above.
ARMKEL, LLC
By: Church & Xxxxxx Co., Inc.
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: Vice President and Chief
Financial Officer
By: Xxxxx & Company, L.P.
By: Xxxxx & Companies, Inc.,
its general partner
By: /s/ Xxxxx Xxxxxxx, XX
----------------------------------
Name: Xxxxx X. Xxxxxxx, XX
Title: V.P. & General Counsel
CHURCH & XXXXXX CO., INC.
By: /s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
Title: Vice President and Chief
Financial Officer
-----------------------------------
