Exhibit 10.1 - Stock Purchase Agreement Between Amcast Industrial
Corporation and Izumi Industries, LTD Dated May 31, 2001
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STOCK PURCHASE AGREEMENT
Among
AMCAST INDUSTRIAL CORPORATION
AS "BUYER"
And
IZUMI, INDUSTRIES, LTD.
A JAPANESE CORPORATION
AS "SELLER"
DATED AS OF MAY 31, 2001
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of May 31, 2001 between
AMCAST INDUSTRIAL CORPORATION, an Ohio corporation ("Buyer"), and IZUMI
INDUSTRIES, LTD., a Japanese corporation, hereinafter referred to as the
"Seller" (the "Seller"), under the following circumstances:
A. Seller owns all of the issued and outstanding capital
stock of Izumi, Inc., a Delaware corporation (the
Stock).
B. Seller desire to sell, and Buyer desires to purchase
100% of the issued and outstanding Stock upon the
terms and conditions hereinafter set forth;
NOW,THEREFORE, Seller and Buyer agree as follows:
Section 1. Definitions. For the purpose of this Agreement, any
amendments hereto and any Exhibit attached hereto or Schedule described herein,
and in addition to terms defined elsewhere herein, the following terms shall
have the following meanings, except as otherwise expressly provided or unless
the context otherwise requires:
1.01 "Affiliate" of a named party means any entity in control
of, controlled by, or under common control with such named party.
1.02 "ACT" means Amcast Casting Technologies Inc. an Indiana
Corporation and subsidiary of Amcast Industrial Corporation
1.03 "Asahi Bank Loan" means the portion of the loan to CTC
made under the terms of that certain Creditor and Intercreditor Agreement among
CTC, Asahi Bank, and National Bank of Detroit dated July 28, 1995 as amended and
superseded by that certain Creditor and Intercreditor Agreement among the same
parties and dated August 25, 1999 (the "Credit Agreement").
1.04 "Bank Debt" The Debt owed by CTC pursuant to the Creditor
Agreement or any bank loan, or credit agreement which replaces the Credit
Agreement, or any additional credit, provided such loan or credit is extended
solely for the purpose of the property, plant inventory, and working capital of
CTC.
1.05 "Buyer" means Amcast Industrial Corporation, an Ohio
corporation.
1.06 "Closing" means the closing for which provision is made
in Section 3.
1.07 "Closing Date" means the date of the Closing.
1.08 "Code" means the Internal Revenue Code of 1986, as
amended.
1.09 "Company" shall mean Izumi, Inc..
1.10 "CTC" means Casting Technology Company, an Indiana
Joint Venture partnership in which ACT and the Company are the partners.
1.11 "Effective Time" means 12:01 a.m. June 1, 2001.
1.12 "Employee Plans" means all employee benefit plans of any
kind or nature.
1.13 "Environmental Laws" shall mean any federal, state or
local law, statute, ordinance, rule, regulation or code, and any license,
permit, authorization, approval, consent, order, judgment, decree, injunction or
agreement with any Governmental Entity to which the Company or any property
owned, leased, occupied or used by the Company is a party or subject, related to
(i) the protection, preservation or restoration of the environment, and/or (ii)
the use, storage, recycling, treatment, generation, transportation, processing,
handling, labeling, production, release or disposal of Hazardous Substances.
1.14 "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
1.15 "Exhibit" means any of the exhibits attached to and made
a part of this Agreement.
1.16 "Financial Statement" means, in respect of a time
period, the income statement, balance sheet, and statement of changes in equity
for the period.
1.17 "Governmental Entity" means any court, governmental
authority or other regulatory or administrative agency or commission, domestic
or foreign.
1.18 "Izumi Receivables" means those accounts owed by CTC
(i) to the Company, in connection with services and supplies provided in
the ordinary course of business and (ii) to Seller pursuant to that certain
Amended Royalty Agreement between Buyer, Seller and CTC dated September
3, 1997 ("Royalty Agreement").
1.19 "Leased Real Property" means the land, building,
structures, or other real property listed at Schedule 1.32 as currently being
leased by the Company.
1.20 "Permits" means foreign, federal, state, local and other
governmental licenses, permits, approvals and authorizations which relate to, or
are necessary to conduct the Business.
1.21 "Purchase Price" shall have the meaning ascribed to it at
Section 2.02.
1.22 "Records" means, in the case of the Company, all books
and records of the Company.
1.23 "Schedule" means any of the Schedules listed in the Table
of Contents to this Agreement.
1.24 "Security Interest" means any pledge, security
interest, lien, charge, encumbrance, option, or restriction on transfer.
1.25 "Tax(es)" means all taxes, charges, fees, levies, tariffs
or other assessments imposed by any federal, state, local, or foreign taxing
authority, including, without limitation, income, add-on or alternative minimum,
estimated, excise, property, sales, use, transfer, payroll, license, employment,
production, gross receipts, environmental (including Section 59A of the Code),
windfall profits, value-added, severance, withholding, capital stock and
franchise taxes (including any interest, penalties or additions attributable to
or imposed on or with respect to any such assessment), including any obligation
to indemnify or otherwise assume or succeed to the Tax liability of another
person.
1.26 "Tax Return(s)" means any return, report, information
return, or other document (including any related or supporting information)
filed by or required to be filed by the Company with any federal, state, local,
or foreign governmental entity or other authority in connection with the
determination, assessment or collection of any Taxes or the administration of
any laws, regulations or administrative requirements relating to any Taxes,
including, without limitation, federal income tax returns of Izumi, Inc.,
declarations of estimated tax and tax reports required to be filed with respect
to the Company or any of its respective income, properties or operations.
Section 2. Purchase and Sale of Izumi, Inc.
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2.01 Purchase. Subject to the terms and conditions of
this Agreement, Seller shall
(a) sell, convey, assign, transfer and deliver the Stock,
free and clear of any Security Interest, to Buyer,
and Buyer shall purchase and acquire from Seller the
Stock at the Closing.
(b) provide a release of CTC, Buyer, ACT, and the Company
from the Asahi Bank Loan, in form, reasonably
satisfactory to Buyer
(c) provide a release and discharge of CTC, Act, and the
Company from the Izumi Receivables reasonably
satisfactory to Buyer
2.02 Purchase Price. In consideration for the Stock,
Buyer agrees to pay Seller the following:
(a) $2,000,000, to be paid in United States Dollars in
cash at closing
(b) $2,000,000, to be paid in accordance with Section
2.03 below (the "Deferred Purchase Price").
(c) An additional amount to be calculated and paid as
described in Section 2.04 below (the "Contingent
Compensation").
2.03 Deferred Purchase Price. The Deferred Purchase Price
shall be paid in five equal annual installments, with the first such
installment to be paid on May 21, 2002. The Deferred Purchase Price shall be
evidenced by a promissory note from Buyer in the form attached hereto as
Exhibit 2.03 (the "Note"). No interest shall accrue on the Deferred Purchase
Price so long as there is no default under the Note. If there is default under
the Note, interest shall accrue as provided therein. In addition;
(a) If CTC (or its successor in interest) completely
discontinues and abandons the technology described in
Section 1.00(a) of that certain License Agreement between
Buyer, Seller and CTC, dated on even date herewith, and any
technology materially derived therefrom (collectively, the
"Licensed Technology"), then Buyer shall be relieved from
the obligations to make additional installment payments
under the Note. Payment obligations under the Note shall not
cease until Seller receives written notice ("Discontinuation
Notice") of the discontinuation and abandonment of the
Licensed Technology (regardless whether such discontinuance
and abandonment in fact have occurred prior to the date
Seller receives the Discontinuance Notice). In addition to
any other payments then due hereunder, Buyer shall also
promptly pay Seller a pro-rated amount based on the period
between the date the last installment payment was due
hereunder and the later of the date (i) the Discontinuation
Notice is received by Seller, and (ii) the actual date use
of the Licensed Technology is discontinued and abandoned.
Upon issuance of a Discontinuation Notice, Buyer shall
afford Seller reasonable access to facilities and records to
verify such discontinuation. Any disagreement in respect to
a Discontinuation Notice shall be resolved as provided in
Section 11.07 of this Agreement. If, in conjunction with the
Discontinuation Notice, CTC discontinues all of its other
business operations, and CTC has insufficient funds to pay
all of CTC's debts, the Final Payment shall be paid to
Holder after the Bank Debt and the trade debt of CTC
(excluding debt owed to CTC by Amcast or any of its
Affiliates, is paid in full.
(b) All principal under the Note, and all accrued and
unpaid interest thereon ("Balance"), shall become
immediately due and payable (x) if the Licensed Technology
or the use thereof is sold, licensed, or otherwise
transferred to anyone other than Buyer, (y) upon the sale or
transfer of substantially all of the assets of CTC (or, if
CTC is consolidated into or merged with Buyer or an
Affiliate thereof, then upon the sale or transfer of
substantially all of the assets of the division or entity
comprising the successor to CTC) to an entity other than
Buyer, or (z) if Buyer (or any Affiliate of Buyer) ceases to
be a general partner, or own in excess of 50% of CTC. The
Balance will be paid to Seller only to the extent the value
of the consideration received by Buyer or any Affiliate
thereof exceeds the sum of the Bank Debt and the trade debt
of CTC (excluding debt owed to CTC by Buyer or any of its
Affiliates). If the entire Balance is not paid pursuant to
this provision, the remaining Balance shall be paid as
provided in the first paragraph of this Section 2.03. Buyer
shall give Seller written notice in reasonable detail of the
foregoing events within ten (10) days of the occurrence and
shall afford Seller reasonable access to facilities and
records to verify Buyer's representation.
2.04 Contingent Compensation. If Buyer or any Affiliate
thereof shall agree during the two years following Closing to sell
substantially all of the assets and the business of CTC, or a percentage of
the ownership of CTC, then Seller shall receive additional compensation
("Contingent Compensation") equal to a percentage of the Net Adjusted Profit
(as defined below) from such sale. "Net Adjusted Profit" means the amount by
which the Profit (as defined below) from such sale exceeds (i) in the first
year following Closing, $100,000 per one percent of the equity of the Company,
and (ii) in the second year following Closing, $164,000 per one percent
interest of the equity of the Company. "Profit" means the amount, if any, by
which the proceeds from the sale exceed the total of the Bank Debt of CTC,
plus the trade debt of CTC (but excluding any debt owed to Amcast or any
affiliate thereof), plus unpaid principal and interest due under the Note.
(a) By way of example, CTC is sold for $36,000,000 in the
first year following Closing, and the balance due
Izumi under its note is $2,000,000, and
$36,000,000 Bank
(15,000,000) Debt
( 4,000,000) Trade Debt
( 2,000,000) Izumi Note
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Balance 15,000,000
$15,000,000
(10,000,000) Minimum Profit Requirement
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$ 5,000,000
Izumi will receive .40 ($5,000,000) or $2,000,000.
Section 3. Closing.
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3.01 Closing The Closing shall take place at the offices
of Buyer at 10:00 a.m., local time, on May 31, 2001 or by such other method as
the parties may agree.
3.02 Seller's Deliveries. At the Closing, Seller shall,
(subject to Buyer's fulfillment of the conditions set forth in Section 3.03) or
Seller's waiver thereof, and subject to fulfillment of the conditions set forth
in Section 3.04), deliver to Buyer:
(a) certificates representing all of issued and
outstanding Stock, registered in the name of the
respective Seller, duly endorsed by the Seller for
transfer to Buyer or accompanied by stock transfer
powers to Buyer of the Stock duly executed by
Seller and with any requisite tax transfer stamps
or other documents attached, with each certificate
being free and clear of any Security Interest;
(b) evidence satisfactory to Buyer in its reasonable
discretion that CTC is released from liability for
all Izumi Receivables as of the Closing.
(c) evidence satisfactory to Buyer in its reasonable
discretion of the full and complete release of CTC,
ACT, the Company, and Buyer from the Asahi Bank
Loan.
(d) except as otherwise directed by Buyer, resignations
of each director and officer of the Company
effective as of the Effective Time;
(e) a certificate of the Secretary of the Company
certifying as to the officers and directors of the
Company.
(f) a true copy of the Certificate of Incorporation of
the Company and all amendments thereto, with
original certification by the Secretary of State or
other appropriate agencies in the state or
jurisdiction of incorporation of the Company and
(g) a true copy of the Bylaws of the Company as in
effect on the Closing Date;
(h) certificates of good standing, dated no earlier
than 60 days prior to the Closing Date, with
respect to the Company from the Secretary of State
of the State of Indiana and Delaware;
(i) a list of all employees of the Company,
(j) all minute books and stock transfer records of the
Company; and
(k) the fully executed License Agreement in the form of
Exhibit 3.02(k) under which Izumi licenses the
Technology to CTC
(l) The Financial Statements as of the end of the most
recent fiscal year of the Company.
3.03 Buyer's Deliveries. At the Closing, Buyer shall
(subject to Seller's fulfillment of the conditions set forth in Section 3.02 or
Buyer's waiver thereof) deliver to the Seller:
(a) $2,000,000 U.S. dollars,
(b) the fully executed Note,
(c) copies of all resolutions of Buyer's Board of
Directors authorizing the transactions contemplated
hereby or otherwise relating to this Agreement and
the transactions contemplated hereby, certified by
the Secretary of Buyer as being in full force and
effect on the Closing Date.
Section 4. Representations and Warranties of Seller.
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Seller represents and warrants the following to Buyer as of the
date of this Agreement:
4.01 Organization; Good Standing; and Qualification. Seller is
a corporation duly organized, validly existing and in good standing under the
laws of the country of Japan, with the corporate power and authority to conduct
its business and to own and lease its properties and assets.
4.02 Corporate Authority. Seller has the corporate power and
authority to execute, deliver and carry out the terms of this Agreement and the
other agreements and instruments to be executed and delivered by it in
connection with the transactions contemplated hereby and thereby and has taken
all necessary corporate action, including approval by its Board of Directors, to
authorize the execution and delivery of this Agreement and such other agreements
and instruments and the consummation of the transactions contemplated hereby and
thereby. This Agreement is, and the other agreements and instruments to be
executed and delivered by Seller in connection with the transactions
contemplated hereby and thereby will be, the legal, valid and binding
obligations of Seller, enforceable in accordance with their terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or from time to time
affecting the enforcement of creditors' rights generally and except that the
enforceability of Seller's obligations is subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
4.03 No Violation. Neither the execution and delivery of this
Agreement or the other documents and instruments to be executed and delivered by
Seller pursuant hereto, nor the consummation by Seller of the transactions
contemplated hereby or thereby (a) will violate any provision of its Articles of
Incorporation or Code of Regulations, (b) will violate or be in conflict with
any applicable law or any judgment, decree, injunction or order of any
Governmental Entity, or (c) subject to obtaining the consents set forth on
Schedule 4.07, will violate or conflict with or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under or will result in the termination of, or accelerate the performance
required by, or result in the creation of any Security Interest, upon any of the
assets of Seller under any term or provision of the Articles of Incorporation or
Code of Regulations Bylaws of Seller or of any contract, commitment,
understanding, arrangement, agreement, order, arbitration award, judgment,
decree or restriction of any kind or character to which Seller is a party or by
which Seller or any of its assets or properties may be bound or affected, other
than violations or conflicts which would not have a material adverse effect on
Seller.
4.04 Title to the Stock. The Seller has title to the Stock free
and clear of any Security Interest and the Seller will convey, or cause to be
conveyed, to Buyer good and valid title to the shares of common stock the
Company free and clear of any Security Interest.
4.05 Litigation. There are no claims, actions, suits or
proceedings pending or, threatened against or affecting Seller, at law or in
equity, or before any Governmental Entity which may impair Seller's ability to
perform this Agreement.
4.06 Authorization and Validity of the Shares. The Stock
has been duly authorized, validly issued and is fully paid and nonassessable.
4.07 Consents. Except as set forth in Schedule 4.07, no
authorization, consent, approval, order or filing with or notice to any
Governmental Entity or another entity or person, is necessary for the execution
and delivery of this Agreement or any other agreement or document to be
delivered by Seller or the consummation by Seller of the transactions
contemplated hereby or thereby.
Section 5. Representations and Warranties of Seller in Regard
to the Company.
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Subject to the limitations set forth at the end of this
Section 5, Seller represents and warrants the following to Buyer as of the date
of this Agreement:
5.01 Ownership of Assets. Other than its partnership share of
CTC, the Company neither owns nor leases any other asset of any kind or nature
including but not limited to real property, machinery and equipment, inventory,
receivables, intellectual property, contract rights or claims. The Company has
never owned or leased any other assets except for its partnership share of CTC.
5.02 Litigation. Schedule 5.02 sets forth every investigation,
action, suit, arbitration, or other legal proceeding, including proceedings
relating to, or arising under Environment Laws (herein "Legal Proceeding"),
which involves the Company which is presently pending, or, is threatened against
the Company. The Company is not in violation of any judgment, decree, injunction
or order outstanding against it.
5.03 Indebtedness. Except insofar as the Company has any
obligation for indebtedness of CTC, as of the
Closing date, the Company has no indebtedness of any
kind or nature
5.04 Contracts; Powers of Attorney.
(a) Schedule 5.04 is a true and complete list of all
Contracts of the Company. Seller has delivered to
Buyer true and complete copies of each Contract
listed on Schedule 5.04. Except as set forth on
Schedule 5.04, the Company is not in default in any
respect under any Contract and no condition or state
of facts exists which, with notice or the passage of
time, or both, would constitute such a default
(b) Except as set forth on Schedule 5.04, there are no
persons holding powers of attorney from the Company
5.05 Environmental Compliance.
(a) Compliance with Environmental Law. Except as set
forth in Schedule 5.05, the Company is operating its
business in compliance with all applicable
Environmental Laws.
5.06 Compliance with Laws and Orders. Except as disclosed in
Schedule 5.06, the Company is operating its business in compliance with all
laws, ordinances, regulations judgments, orders, decrees, licenses or permits of
any Governmental Entity.
5.07 Permits and Licenses. Except as set forth in Schedule
5.07, the Company has no permits, licenses, orders and approvals of any federal,
state, local, and foreign governmental or regulatory bodies required for the
Company to carry on the Business as presently conducted and none are required.
5.08 Employee Plans. The Company has no employees or
Employee Plans and has never had any employees or Employee Plans.
5.09 Business Interest. Other than its partnership
interest in CTC, the Company has no ownership interest of any kind or nature in
any other corporation, partnership, joint venture, or other business.
Seller's representations and warranties herein are limited to
itself and the Company only and include no other entities. By way of
illustration and not limitation, the representations and warranties in Section
4, 5 and 6 are not made on behalf or in respect of CTC.
Section 6. Taxes.
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6.01 (a) Except as set forth on Schedule 6.01, the Company has
filed all Tax Returns that are required to be filed and all such Tax Returns are
correct and complete in all material respects; (b) the Company paid all Taxes
with respect to operations through the Closing Date, (c) the Company is not
currently the beneficiary of any extension of time within which to file any Tax
Return (d) there is no dispute or claim concerning any Tax liability of the
Company, (e) there is no expectation that any authority will assess any
additional Taxes against the Company that will materially adversely affect the
financial condition of the Company.
6.02 Schedule 6.02 lists (a) all jurisdictions in which the
Company is required to file Tax Returns, (b) all Tax Returns filed with respect
to the Company for tax years ending after 1994, (c) "Tax Returns" shall mean all
returns relating to income, property, and sales and use taxes and forms 940 and
941; and (d) indicate those Tax Returns that are the subject of an audit
currently, the Company has delivered to Buyer correct and complete copies of all
Tax Returns for tax years ending after 1994, and related examination reports,
and statements of deficiencies assessed against or agreed to by the Company for
tax years ending after 1994.
6.03 All elections with respect to Taxes that have been made
by the Company for tax years ending after 1994 are included with copies of Tax
Returns provided to Buyer pursuant to Section 6.02 of this Agreement.
6.04 Except as otherwise set forth on Schedule 6.04, the
Company has not waived any statute of limitations with respect to Taxes or
agreed to any extension of time with respect to a tax assessment or deficiency.
Section 7. Representations and Warranties of Buyer.
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Buyer hereby represents and warrants the following to Seller
as of the date of this Agreement:
7.01 Organization; Good Standing; and Qualification. Buyer is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Ohio, with the corporate power and authority to conduct its
business and to own and lease its properties and assets.
7.02 Corporate Authority. Buyer has the corporate power and
authority to execute, deliver and carry out the terms of this Agreement and the
other agreements and instruments to be executed and delivered by it in
connection with the transactions contemplated hereby and thereby and has taken
all necessary corporate action, including approval by its Board of Directors, to
authorize the execution and delivery of this Agreement and such other agreements
and instruments and the consummation of the transactions contemplated hereby and
thereby. This Agreement is, and the other agreements and instruments to be
executed and delivered by Buyer in connection with the transactions contemplated
hereby and thereby will be, the legal, valid and binding obligations of Buyer,
enforceable in accordance with their terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or from time to time affecting the enforcement of
creditors' rights generally and except that the enforceability of Buyer's
obligations is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
7.03 No Violation. Neither the execution and delivery of this
Agreement or the other documents and instruments to be executed and delivered by
Buyer pursuant hereto, nor the consummation by Buyer of the transactions
contemplated hereby or thereby (a) will violate any provision of its Articles of
Incorporation, Code of Regulations or by laws, (b) will violate or be in
conflict with any applicable law or any judgment, decree, injunction or order of
any Governmental Entity, or (c) subject to obtaining the consents set forth on
Schedule 7.04, will violate or conflict with or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under or will result in the termination of, or accelerate the performance
required by, or result in the creation of any Security Interest, upon any of the
assets of Buyer under, any term or provision of the Articles of Incorporation,
Code of Regulations or Bylaws of Buyer or of any contract, commitment,
understanding, arrangement, agreement, order, arbitration award, judgment,
decree or restriction of any kind or character to which Buyer is a party or by
which Buyer or any of its assets or properties may be bound or affected, other
than violations or conflicts which would not have a material adverse effect on
Buyer.
7.04 Consents. Except as set forth in Schedule 7.04, no
authorization, consent, approval, order or filing with or notice to any
Governmental Entity or another entity or person, is necessary for the execution
and delivery of this Agreement or any other agreement or document to be
delivered by Buyer or the consummation by Buyer of the transactions contemplated
hereby or thereby.
7.05 Litigation. There is no order, judgment or decree of any
Governmental Entity, by which Buyer is bound and no action, suit or other legal,
administrative or arbitration proceedings or investigations before any
Governmental Entity is pending or, to Buyer's knowledge, threatened, which, in
each case, would prohibit the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
Section 8. Additional Agreement and Covenants.
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8.01 Further Assurances. Each party shall, at the request of
the other party, do and perform or cause to be done and performed all such
further acts and furnish, execute and deliver such other documents, instruments,
certificates, notices or other further assurances as counsel for the requesting
party may reasonably request, from time to time, to consummate more effectively
the transactions contemplated by this Agreement or to vest in Buyer all of
Seller's right, title and interest in the Company. Further, Buyer shall provide
Seller with documents and information which may reasonably be required for the
preparation of tax returns.
8.02 Expenses. Except as otherwise provided in this Agreement,
each party will pay all fees and expenses incurred by it in connection with this
Agreement and the transactions contemplated hereby.
Section 9. Survival of Representations and Warranties
9.01 Survival of Representations and Warranties.
(a) All representations and warranties made by Seller to
Buyer or Buyer to Seller in this Agreement shall
survive the Closing Date and continue until May 31,
2004.
Section 10. Indemnity.
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(a) Indemnification of the Buyer Group. Subject to the
terms and conditions of this Section 10, Seller
hereby agrees to indemnify, defend and, hold harmless
Buyer, the Company, and each of their respective
Affiliates, directors, officers and employees and the
successors and assigns of any of them (the "Buyer
Group") at any time after the Closing from and
against all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities,
costs and expenses (including, without limitation,
reasonable fees and expenses of counsel)
(collectively, "Damages"), asserted against,
resulting to, imposed upon or incurred by any member
of the Buyer Group, directly or indirectly, by reason
of or resulting from:
(i) a breach of any representation or
warranty of Seller contained in or
made pursuant to this Agreement;
(ii) a breach by Seller of any covenant,
agreement or obligation of Seller
contained in or made pursuant to
this Agreement
(b) Indemnification of Seller. Subject to the terms and
conditions of this Section 10, Buyer hereby agrees to
indemnify, defend and hold harmless Seller, its
affiliates, officers, directors, and employees and
the successors and assignees of any of them (the
Seller Group) at any time after the Closing, from and
against all Damages asserted against, resulting to,
imposed upon or incurred by any Seller Group,
directly or indirectly, by reason of or resulting
from:
(i) a breach of any representation or
warranty of Buyer contained in or
made pursuant to this Agreement; or
(ii) the breach by Buyer of any covenant,
agreement or obligation of Buyer
contained in or made pursuant to
this Agreement
(iii) all liabilities, expenses and
damages of whatever kind and nature,
relating to CTC, at any time either
before or after Closing including,
but not limited to, all bank debt.
(iv) all liabilities, expenses and
damages, of whatever kind and
nature, arising out of or under the
Partnership Agreement, the Credit
Agreement, and the Royalty
Agreement, and all leases of
equipment in respect of CTC.
Section 11. Miscellaneous.
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11.00 Termination of Certain Agreements. The parties
hereby agree that
(a) the Joint Venture Partnership Agreement by and
Between Buyer and Seller, and dated April 14, 1994
("JV Agreement") shall be terminated effective as of
the Closing Date and be of no further force and
effect; provided, however, this shall not relieve the
parties of their rights and obligations under the JV
Agreement prior to the termination.
(b) The parties also agree that the Agreement for
Dispatch of Designee(s) made January 1, 1997, between
Seller and CTC will be terminated following the
return of Xxxxxxx Xxxxx to Japan.
(c) Buyer shall use its best efforts to obtain, as soon
as possible, a termination of the Seller's guarantee
of that equipment lease between PNC Leasing Corp. (as
lessor) and CTC (as lessee).
11.01 Assignment; No Third-Party Rights. This Agreement shall
be binding upon and shall inure to the benefit of, and be enforceable by, the
parties hereto and their permitted successors and assigns. This Agreement may
not be assigned by either party without the prior written consent of the other,
except Buyer may, with the prior written consent of Seller which will not be
unreasonably withheld, assign the rights of Buyer hereunder to take title to the
Stock to any Affiliate of Buyer. No assignment of this Agreement shall relieve
the assigning party of responsibility for the performance of any of its
obligations hereunder. Nothing herein is intended to, nor shall it, create any
rights in any person other than the parties hereto.
11.02 Entire Agreement. This Agreement and the agreements to be
executed in connection herewith set forth the entire agreement and understanding
of the parties in respect of the transactions contemplated hereby and supersede
all prior agreements, arrangements and understandings relating to the subject
matter hereof. All Schedules and Exhibits and any documents and instruments
delivered pursuant to any provisions hereof are expressly made a part of this
Agreement as fully as though completely set forth herein.
11.03 Section and Other Headings; Number. The section and other
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Words
used in this Agreement in the singular number shall be held to include the
plural, and vice versa, unless the context requires otherwise.
11.04 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) on the date of service if served personally on the
party to whom notice is to be given, (b) on the day of transmission if sent via
facsimile transmission to the facsimile number given below, and telephonic
confirmation of receipt is obtained promptly after completion of transmission,
(c) on the day after delivery to Federal Express or similar overnight courier or
the Express Mail service maintained by the United States Postal Service, or (d)
on the fifth day after mailing, if mailed to the party to whom notice is to be
given, by registered or certified mail, postage prepaid and properly addressed,
to the party as follows:
If to Buyer:
Amcast Industrial Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Telephone: 937/000-0000
FAX: 937/000-0000
Attention: President and CEO
and additional copy to:
Attention: Secretary
If to Seller:
Izumi Industries, Ltd.
0, Xxxxx-xxx
Xxxxxxx,
Xxxxxxx 00-0000 Xxxxx
Attention: President
and additional copy to:
Xxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxx, PC
000 Xxxxxxxx Xxxxxx, #0000
Xxxxxxxxxxxx, XX 00000-0000
or to such other address as the person to whom notice is to be given may have
previously furnished to the other in writing in the manner set forth above.
11.05 Law Governing. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of Indiana
without regard to its conflict of law rules.
11.06 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
taken together shall constitute one and the same instrument.
11.07 Resolution of Disputes.
(a) In the event of a dispute between the parties arises
under the terms of this Agreement involving an issue other than
payment of amounts due under Section 2 hereof, either party may
send to the other a letter of dispute setting forth in particular
the subject matter of the dispute ("Disputed Matter"). The
parties shall meet in Indianapolis, Indiana or at such place as
may be mutually agreeable to them, not later than twenty days
after the date of the receipt of the letter of dispute for the
purposes of negotiating a settlement of the Disputed Matter.
(b) In the event that either party determines after
compliance with Section 11.07(a) that the Disputed Matter cannot
be resolved by the parties, the Disputed Matter shall be
submitted to binding arbitration before a panel of three
arbitrators in Chicago, Illinois in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association; provided, however, that (a) the parties may engage
in prehearing discovery to the full extent provided in the
Federal Rules of Civil Procedure, and (b) evidentiary rules
contained in the Federal Rules of Civil Procedure shall govern
the submission of evidence at the arbitration hearings. Judgment
upon the award by the arbitrators shall be final and binding and
not appealable and may be entered in any court having
jurisdiction thereof. As part of such award the arbitrators may
establish their fee and expenses in connection therewith. The
fees and expenses of the arbitrators shall be apportioned between
the parties by the arbitrators in accordance with the findings
and results of the arbitration.
11.08 Prohibition on Use of "Izumi.." CTC and Buyer, their
Affiliates, and the Buyer Group agree they will not use the name "Izumi," or any
name derived materially therefrom, in any manner. The parties agree that the
damage resulting to Seller as a result of violation of this provision would be
difficult to determine, and agree that Seller may rightfully seek injunction or
other equitable relief to enforce this subsection.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be executed as of the date first above written.
"Buyer"
AMCAST INDUSTRIAL CORPORATION
By: /s/ Xxxxx Xxxx
-----------------------------------------
"Seller"
IZUMI INDUSTRIES, LTD
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Schedule 4.07
Seller's Required Consents
1. Consent or waiver by the Banks under the Credit Agreement.
Schedule 5.02
Litigation Against the Company
None.
Schedule 5.04
Contracts of the Company
None.
Schedule 5.05
Environmental Complaints
None.
Schedule 5.07
Company Permits
None.
Schedule 6.02
Tax Jurisdiction of the Company
1. United States of America
2. State of Indiana
3. State of Delaware
Schedule 6.07
Certain Tax Matters of the Company
None.
Schedule 6.1
Tax Matters
1. The filing date for the Company's federal tax returns for
2000 have been extended to September 1, 2001.
Schedule 7.04
Buyer's Required Consents
1. Consent of Buyer's lenders under certain LIFO Lending Agreement.
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