Assetpur13 = final signed asset purchase agreement; 2-2-98
ASSET PURCHASE AGREEMENT
This asset purchase agreement, including all appended exhibits and schedules,
(collectively the "Agreement") is made on February 2, 1998 between:
JELD-WEN, inc.,
an Oregon corporation ("Buyer");
AND
Xxxxxx Products Ltd. ("Seller");
a Delaware corporation
WHEREAS, one of Seller's business divisions herein referred to as "Xxxxxx
Manufacturing" principally manufactures stile and rail doors in Oshkosh,
Wisconsin and Weed, California; and
WHEREAS, Buyer would like to buy from Seller and Seller would like to sell to
Buyer substantially all of the assets of Xxxxxx Manufacturing upon the terms and
conditions and in reliance upon the representations and warranties set forth in
this Agreement;
THEREFORE, Buyer and Seller (the "Parties"; each a "Party") agree as follows:
ARTICLE 1
DEFINED TERMS
1.1 Defined Terms. The following terms shall have the respective meanings set
forth below (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Accounts Receivable" means all accounts receivable of the Operations
which exist on the Effective Date and which are listed on the Effective
Date Balance Sheet, whether designated as an account or a note receivable.
"Acquired Assets" means all of the Xxxxxx Manufacturing
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assets which exist on the Effective Date, wherever located, owned or used
by Xxxxxx Manufacturing or necessary for the conduct of the Operations
(free and clear of any and all encumbrances, except as specifically
allowed in this Agreement), including without limitation: Accounts
Receivable, investments, prepaid expenses, rights to the benefit of
insurance policies for claims arising out of events which occurred prior
to Closing, supplies, Inventory, all real estate (including but not
limited to the Real Property), all personal property (including, but not
limited to buildings, machinery, equipment, rolling stock, supplies and
spare parts), contract rights, lease rights, intellectual property, and
all other tangible and intangible assets (including without limitation the
name and trademark "Nicolai"), customer lists and copies of any books and
records pertinent to Buyer's future use of the Acquired Assets; provided,
however, the Acquired Assets shall not include the Excluded Assets.
"Assignment and Assumption Agreement" means the agreement to be executed
by Seller and Buyer at the Closing.
"Assumed Liabilities" has the meaning specified in Section 5.1 herein.
"Xxxx of Sale" means the instrument to be executed by Seller and delivered
to Buyer at the Closing.
"Book Value" shall have the meaning in Section 4.3 herein.
"Closing" has the meaning specified in Article 3 hereof.
"Closing Date" has the meaning specified in Article 3 hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Effective Date Balance Sheet" means the balance sheet of Xxxxxx
Manufacturing as further described in Section 4.3 herein.
"Effective Date" has the meaning specified in Article 3 hereof.
"Environmental Hazard" means: (i) any contaminant or hazardous, toxic,
radioactive, infectious or dangerous substance, material or waste as
regulated, defined or listed
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under any Environmental Law applicable to the Operations or the Real
Property; (ii) any material containing more than one percent by weight of
asbestos; (iii) explosives or (iv) urea formaldehyde.
"Environmental Law" means any domestic or foreign federal, provincial,
state or local law, rule, regulation, ordinance, statute, order, license,
permit, judgment or award relating to pollution of the ambient
environment, environmental protection or pollution control including
without limitation matters relating to air, water or soil quality, or the
control, handling, storage, release or disposal of Environmental Hazards
pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Resource Conservation and Recovery Act of 1976,
as amended by the Hazardous and Solid Waste Amendments of 1984, the Toxic
Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide
Act or any similar federal, state or local statutes or regulations.
"Excess Inventory" has the meaning specified in Section 4.3 hereof.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended.
"Excluded Assets" means: (i) all cash, cash equivalents, and short-term
investments; (ii) any accounts receivable or advances due from employees
of Seller or parties related to Seller; (iii) all prepaid taxes except
prepaid real property taxes accepted by Buyer; (iv) all insurance policies
except rights to the benefit of insurance policies for claims arising out
of events which occurred prior to Closing; (v) all other prepaid expenses
that have no tangible benefit to Buyer following the Closing contemplated
by this Agreement; (vi) all deposits which are not customer deposits for
future sales orders; (vii) any property owned by a third party vendor;
(viii) any goodwill included on Seller's balance sheet; (ix) the names
"Xxxxxx" and "Xxxxxx Manufacturing", the Seller's "Xxxxxx Doorman" name
and logo and the Seller's "M" logo and any variations thereof except as
otherwise set forth herein; (xi) Seller's settlement agreement with Xxxx
Millwork; (xii) all capitalized leasehold improvements at Xxxxxx
Manufacturings' Weed, California operation, or at the leased office
building located at 000 Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxx; (xiii) any
contract rights under the contracts listed on Schedule 7.18 except for
contracts, the
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liabilities relating to which Buyer is assuming hereunder; (xiv) any
assets relating to Seller's contract with Bend Wood Products regarding
"Project X"; (xv) any rights of Seller under that certain trademark
license agreement dated as of November 29, 1991 between Seller and Marmac
Corporation; (xvi) any rights of Seller under that certain supply
agreement dated as of November 27, 1991 by and between Seller, Texmar
Corporation and Marmac Corporation and (xvii) any assets or properties of
Seller which are used solely in Seller's distribution business, which are
not necessary for the conduct of the Operations.
"Inventory" means all of the inventories of merchandise and stock in trade
of the Operations existing as of the Effective Date, including raw
materials, work in process, and finished goods, whether located at the
Real Property or in transit or elsewhere.
"Leased Real Property" means the real property leased by Seller at the
locations of the Operations listed on Schedule 1.3.
"Operations" means Seller in its actions which comprise or relate to its
Xxxxxx Manufacturing operations or its Xxxxxx Manufacturing business.
"Owned Real Property" means the real property and all improvements,
attachments and related property located at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx 00000 and further described in Schedule 1.4.
"Person" shall mean an individual, partnership, joint venture,
corporation, bank, trust, unincorporated organization and/or a government
or any department or agency thereof.
"Purchase Price" has the meaning specified in Section 4.1 hereof.
"Real Property" means the Owned Real Property and the Leased Real
Property.
"Slow Moving Inventory" means any Inventory that is in excess of one
year's supply of Inventory.
ARTICLE 2
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AGREEMENT TO SELL AND PURCHASE ASSETS
2.1 Agreement to Sell and Purchase Assets. At the Closing, Seller shall sell,
transfer and assign to Buyer and Buyer shall acquire from Seller the
Acquired Assets free and clear of any and all encumbrances, except for the
Assumed Liabilities which Buyer has specifically agreed to assume pursuant
to the provisions of Section 5.2 hereof, which Assumed Liabilities Buyer
shall, at the Closing, assume and undertake to perform.
ARTICLE 3
CLOSING
3.1 Closing Place, Time and Date. The sale and purchase of the Acquired Assets
and the related transactions as contemplated by this Agreement (the
"Closing") shall take place at Seller's offices in Oshkosh, Wisconsin at
1:00 p.m. (local time) on February 2, 1998 (or such other place, date and
time as shall be agreed upon by Buyer and Seller).
The date of the Closing is referred to in this Agreement as the "Closing
Date".
3.2 Effective Date. When completed, the Closing shall be effective as of 12:01
a.m. (local time) on February 2, 1998 (the "Effective Date").
ARTICLE 4
PURCHASE PRICE PAYMENT, CALCULATION, ALLOCATION, AND ADJUSTMENT
4.1 Purchase Price and Payment. Subject to the adjustment provisions provided
in Section 4.2, 4.3 and 4.4 below, the purchase price for the Acquired
Assets (the "Purchase Price") shall be Thirty Eight Million Four Hundred
Seventy Five Thousand and no/100ths Dollars ($38,475,000.00), payable in
immediately available funds by wire transfer at the Closing as follows:
a. Seller. Thirty Six Million Nine Hundred Seventy Five Thousand
and no/100ths Dollars ($36,975,000.00);
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b. Escrow Agent. One Million Five Hundred Thousand and No/100ths
Dollars ($1,500,000.00) (the "Escrowed Funds") shall be placed
into an escrow account by wire transfer as provided in Section
4.5.
4.2 Purchase Price Allocation and Calculation.
a. Allocation Among Assets. Subject to the adjustment contemplated in
Section 4.3, the Purchase Price shall be allocated among the
Acquired Assets according to Schedule 4.2 (a).
b. Tax Matters Relating to Allocation. The Parties agree to act in
accordance with the allocations of Section 4.2(a) in any relevant
tax returns or filings (including any forms or reports required to
be filed pursuant to any provisions of federal, state, county or
municipal taxing law or regulations promulgated thereunder)
(collectively, the "Tax Returns"), and to cooperate in the
preparation of any Tax Returns and to file such Tax Returns in the
manner required by applicable law.
Notwithstanding the provisions of this Section 4.2, in the event
that any tax authorities, or any court of competent jurisdiction,
shall not honor the allocation of the Purchase Price as agreed
hereto by the Parties and as filed hereby, the Parties may be
required to reallocate the Purchase Price among the Acquired Assets;
however, the total of the Purchase Price shall not be adjusted for
such reason.
4.3 Purchase Price Adjustments.
a. Book Value of Xxxxxx Manufacturing. Following the Closing, Seller
shall prepare a balance sheet of Xxxxxx Manufacturing as of the
Effective Date (the "Effective Date Balance Sheet") according to the
following standards.
i. General Standards. Seller shall deliver to Buyer, within fifty
(50) days following the Effective Date (by March 23, 1998),
the Effective Date Balance Sheet. Seller shall permit Buyer
reasonably full access to audit Seller's work papers and
Effective Date Balance Sheet, which
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process shall be completed within 50 days after the Effective
Date Balance Sheet has been proposed to the Buyer (by May 12,
1998).
The Effective Date Balance Sheet shall only include the asset
portion of the balance sheet of Xxxxxx Manufacturing (which
shall be comprised of the Acquired Assets) and shall not
include the liability or equity section of Xxxxxx
Manufacturing's balance sheet.
Except as specified in Schedule 4.3 or as otherwise set forth
in this Agreement, the Effective Date Balance Sheet shall be
prepared in accordance with generally accepted accounting
principles ("GAAP") applied on a basis consistent with the
Seller's methods and procedures for valuing assets as were
used by Seller in its December 31, 1996 financial statements
relating to the Oshkosh operations (including the same
standards under GAAP for treatment of repair parts, supplies
and maintenance materials; eg. items not capitalized in prior
years shall not be capitalized on the Effective Date Balance
Sheet).
The format of the Effective Date Balance Sheet shall be
mutually agreed to by the Parties prior to the Closing Date
and shall be substantially in the form of Schedule 4.3.
Buyer shall permit Seller reasonably full access to the books
and records of the Operations and to Buyer's employees in
Oshkosh, Wisconsin and Buyer shall cooperate with Seller in
any reasonable manner requested by Seller, in connection with
Seller's preparation of the Effective Date Balance Sheet.
ii. Specific Items. The Seller shall conduct a physical counting
of the Inventory in connection with its preparation of the
Effective Date Balance Sheet. The Buyer and its representative
shall be entitled to be present at and observe such physical
counting of Inventory. Each party shall use its reasonable
best efforts to resolve any physical count discrepancies
identified by either party at the time of the taking of the
physical
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inventory. The Inventory value shall be computed on a lower of
cost or market First-In First-Out ("FIFO") basis. Rebates
received with respect to the Inventory shall be reflected in
the material costs via purchase price variances.
The Inventory value shall be computed in accordance with GAAP
consistently applied and shall be discounted for any Inventory
which is damaged, obsolete, Slow Moving, returned or which
requires net realizable value reserves (including full
write-offs if required under GAAP) ("Excess Inventory").
If agreement regarding the valuation of Excess Inventory
cannot be reached, the Seller may elect to retain title to
such Excess Inventory and will have sixty days from the
Closing Date to remove them from the Operations. The Buyer
will have sixty (60) days from the Closing Date to remove any
Inventory included in the Acquired Assets from any Real
Property of Seller that is not included in the Acquired
Assets.
Variances caused by excess capacity costs, substantial
inventory downsizing and costs not normally considered for
capitalization shall not be included in inventory variance
capitalization. Such Inventory that includes capitalized
variances shall be further reviewed and valued at the lower of
its cost or net realizable value.
Any goodwill, deferred charges, office supplies, deferred
taxes, and Excluded Assets on the Effective Date Balance Sheet
shall be valued at zero.
The asset value of any capital equipment leases on the
Effective Date Balance Sheet assumed by Buyer pursuant to
Article 5 of this Agreement shall be shown net of related
liabilities.
Assets included in Seller's depreciation schedule which have
been sold or transferred or which no longer exist ("Missing
Assets") shall be valued at zero on the Effective Date Balance
Sheet: a) if the Missing Asset has a depreciated value of
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$3,000 or greater or b) to the extent the depreciated value of
all Missing Assets that have depreciated values of lower than
$3,000 exceed $10,000 in the aggregate.
iii. Settlement of Disputes. In the event that Buyer and Seller are
unable to agree upon the final audit numbers, then either
Party may refer any issue in dispute to the Milwaukee,
Wisconsin offices of KPMG accounting firm (the "Accountant"),
whose decision shall be final and binding on both Seller and
Buyer.
The fees and expenses of the Accountant chosen to resolve
disputes concerning the Effective Date Balance Sheet shall be
shared equally by Seller and Buyer. The Accountant shall have
access to all work papers of Seller and Buyer reasonably
necessary to review and resolve questions regarding the issues
in dispute.
The Accountant shall render its determination to the Parties
within 30 days of the date on which the issue or issues are
presented to it by the Parties.
After the assets have been valued according to the standards in this
Section, the resultant value attributed thereto shall be further reduced
by Three Million and no/100ths Dollars ($3,000,000.00) solely for purposes
of the Effective Date Balance Sheet and determination of the Purchase
Price adjustment.
b. Purchase Price Adjustments. To the extent that the net book value of
the Acquired Assets on the Effective Date Balance Sheet (the "Book
Value") is less than or greater than Thirty Eight Million Four
Hundred Seventy Five Thousand and no/100ths Dollars
($38,475,000.00), then the Purchase Price described in Section 4.3
above shall be reduced or increased as the case may be, dollar for
dollar, to the extent of such variance.
In the event such adjustments are not made at Closing, the entire
dollar amount of such adjustments shall be paid in cash within five
(5) days following final determination of the Book Value, whether by
agreement of the Parties or upon receipt by the Parties of the
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Accountant's determination of the disputed issues, together with
interest on the amount of such adjustment at the rate of nine
percent (9%) per annum from the date of Closing to the date of
payment.
4.4 Guarantee of Accounts Receivable. For a period of one hundred eighty days
(180) days following the Effective Date (until August 1st, 1998)(the
"Collection Period"), Buyer shall use reasonable business efforts to
collect the Accounts Receivable purchased by Buyer as part of the Acquired
Assets.
To the extent that any Accounts Receivable remain Uncollected at the end
of such 180-day period, Seller shall pay to the Buyer, in cash within five
(5) days of Buyer's request, the amount of the Uncollected Accounts
Receivable, together with interest on the amount calculated herein at the
rate of nine percent (9%) per annum from the Closing Date to the date of
payment.
Buyer shall make available to Seller and its accountants and
representatives the books and records of the Operations and Buyer's
employees in Oshkosh, Wisconsin reasonably necessary for Seller to
determine the accuracy of any payment required to be made by Seller
pursuant to this Section.
Promptly following any reimbursement payment from Seller to Buyer for
Uncollected Accounts Receivable pursuant to this Section 4.4, the Buyer
shall transfer all right, title and interest in and to such Uncollected
Accounts Receivable to the Seller, free and clear of any and all
encumbrances and Buyer shall have no further obligations of any kind to
collect the Accounts Receivable. The term "Collected" as it relates to the
Accounts Receivable guarantee shall mean the extent to which outstanding
Accounts Receivable have been paid to the Buyer: a) in cash or other good
funds or b) by deposits previously paid by Seller to the Buyer.
The term "Collected" shall specifically exclude any credits taken by the
customer for prompt pay discounts, credits for defective or damaged goods,
goods not received or any other related credit items. Any credit balances
included in the purchased Accounts Receivable which result in a liability
to a customer shall be treated as an offset to subsequently collected
amounts. The term "Uncollected" shall mean not
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Collected.
4.5 Escrowed Funds. The Parties agree that the Escrowed Funds described in
Section 4.1 shall be held in escrow by the Manhattan, New York City, New
York office of The Chase Manhattan Bank (the "Escrow Agent") to be used
for the purpose of making post-closing adjustments relating to the audit
and the Accounts Receivable guarantee. The escrow arrangement shall be
evidenced by an escrow agreement in the form of Exhibit A, which is
attached hereto (the "Escrow Agreement").
The escrow procedure outlined in this Section and in the Escrow Agreement
shall in no way limit Buyer from exercising any other remedies it may have
under this Agreement or at law or equity, including, but not limited to
the right of Buyer to claim as damages against Seller an amount greater
than the amount of money held in escrow or paid out of escrow.
ARTICLE 5
LIABILITIES ASSUMED
5.1 Liabilities Not Assumed. As part of its purchase of the Acquired Assets,
Buyer shall assume no liabilities of Seller and no contracts of Seller of
any kind except those that Buyer expressly, in writing, agrees to take or
assume (the "Assumed Liabilities").
5.2 Assumed Liabilities. Seller shall assign to Buyer and Buyer shall assume
from Seller the following Assumed Liabilities of Seller:
a. Purchase Contracts. The Seller's obligations with respect to the
Operations under any purchase contracts made prior to the Closing
for inventory or other goods in transit, provided that such
contracts are reasonable on the basis of quality, quantity, price,
brand, dimensions and other terms, and incurred in the ordinary
course of business by Xxxxxx Manufacturing ("Purchase Contracts");
provided that such inventory or other goods in transit are not
included on the Effective Date Balance Sheet.
Buyer has reviewed the price and quantity terms of the
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Purchase Contracts listed on Schedule 5.2(a) and Buyer agrees that
they are reasonable on those bases.
b. Sale Contracts. The Seller's obligations with respect to the
Operations under sales contracts arising from:
i. sales orders accepted by Xxxxxx Manufacturing from the
customers of Xxxxxx Manufacturing prior to the Closing, and
ii. quotes made to customers by the Seller with respect to the
Operations prior to the Closing which are accepted after
Closing;
provided: 1) that the terms of such contracts were incurred by
the Seller in the ordinary course of business on commercially
reasonable terms (including, without limitation, adequate
credit protection) and 2) that the Seller has assigned all
corresponding rights under such contracts to Buyer either
herein or in another document (the "Sale Contracts").
Buyer has reviewed the price and quantity terms of the Sale
Contracts listed on Schedule 5.2(b) and Buyer agrees that they
are reasonable on those bases.
Buyer's assumption of customer deposit liabilities hereunder
shall be limited to the extent that Seller has delivered cash
to Buyer for such liabilities, which amount shall be finally
determined in the audit described in Article 4.
c. Miscellaneous Contracts. The Seller's obligations with respect to
the Operations under the contracts described on the attached
Schedule 5.2 (c), (the "Miscellaneous Contracts"). If the
Miscellaneous Contracts are not assumable, Buyer shall have no
obligation to assume them, provided that, in such event, the
contract rights associated with such non-assumed Miscellaneous
Contracts shall be deemed to be Excluded Assets and shall not be
transferred to Buyer hereunder.
Buyer shall not assume any contract liabilities unless Seller has also
assigned to Buyer the related contract rights and assets.
5.3 Proration of Continuing Liabilities. Buyer and Seller shall
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prorate the amount of liability each shall have for liabilities which
accrue on an ongoing basis using the Effective Date as the date for such
prorations.
Such prorations shall include, but not be limited to Xxxxxx
Manufacturing's:
a. Prepaid or accrued property taxes;
b. Any liabilities assumed by Buyer in Section 5.2(c);
c. Utility expenses provided that the xxxxxxxx cannot be separated at
the Effective Date and
d.
Seller shall be responsible for expenses allocable to the period prior to
the Effective Date and Buyer shall be responsible for expenses allocable
to the period after the Effective Date.
To the extent possible, the proration of expenses and the corresponding
amounts for which each party shall be liable shall be determined and
settled by the Parties at the same time as the Effective Date Balance
Sheet is finalized.
5.3 Closing Date Employee Costs. Seller shall be responsible for all costs of
the Operations through the Effective Date except for the cost of the wages
for the hourly employees of Seller for February 2, 1998, which shall be
split equally between Seller and Buyer.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
6. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller as follows:
6.1 Organization, Standing and Authority. Buyer is a corporation, duly
organized and in good standing under the laws of the State of Oregon, and
possesses all requisite corporate power and authority to enter into and
perform this Agreement.
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6.2 Authorization. The execution, delivery and performance of this Agreement
by Buyer have been duly and validly authorized by all necessary corporate
action on the part of Buyer. This Agreement is a valid, binding and
enforceable obligation of Buyer except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting or limiting the rights of creditors generally.
6.3 Compliance with Laws. To the best of Buyer's knowledge, Buyer is in
substantial compliance with all applicable laws, rules and regulations
affecting or relating to the properties or the business of Buyer which
could affect Buyer's ability to perform under this Agreement.
6.4 Litigation. There are no actions, suits, proceedings or governmental
investigations pending or, to the knowledge of Buyer, threatened against
Buyer which materially adversely affect or might materially adversely
affect the validity of or Buyer's ability to consummate the transactions
described in this Agreement.
6.5 Notices and Consents. Except for any filings and approvals required by the
Xxxx Xxxxx Xxxxxx (HSR) Act, no notice or consent of any party or
governmental authority is required in connection with the execution,
delivery and performance of this Agreement by Buyer, other than notices
which have been given and consents which have been obtained prior to the
execution of this Agreement.
6.6 Compliance with Instruments. The execution, delivery and performance of
this Agreement by Buyer does not and will not conflict with or result in a
breach of or a default under, or give rise to any right of termination,
cancellation or acceleration with respect to, any of the terms, conditions
or provisions of any indenture, contract, agreement, license, lease or
other instrument or obligation to which Buyer is a party or by which it is
bound or which affects the business or any property of Buyer or violates
any order, writ, injunction or decree applicable to Buyer or conflicts
with or results in a default under any provisions of the Articles of
Incorporation or Bylaws of Buyer.
6.7 No Finders' Fees. Neither Buyer nor any Person acting on Buyer's behalf
has employed any broker or finder or incurred any liability for any
brokerage fees or commissions or any finder's fees in connection with the
negotiations relative
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to this Agreement or the consummation of the transactions contemplated
hereby.
6.8 Financial Ability to Perform. The Buyer has or has access to sufficient
funds to pay the Purchase Price on the terms and conditions contemplated
by this Agreement and has heretofore furnished the Seller with sufficient
evidence of such ability. The Buyer acknowledges and agrees that the
Buyer's performance of its obligations under this Agreement is not in any
way contingent upon the availability of financing to the Buyer.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
7. Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer as follows:
7.1 Standing and Authority of Seller. Seller is a corporation, duly organized
and in good standing under the laws of the State of Delaware, and
possesses all requisite corporate power and authority to enter into and
perform this Agreement.
7.2 Authorization by Seller. The execution, delivery and performance of this
Agreement by Seller has been duly and validly authorized by all necessary
action on the part of Seller and this Agreement is a valid, binding and
enforceable obligation of Seller except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting or limiting the rights of creditors generally.
7.3 Compliance with Laws. To the best of Seller's knowledge, Seller is in
compliance with all material laws, rules and regulations affecting or
relating to the Acquired Assets, or the Operations.
7.4 Governmental and Other Consents. Except for any filings and approvals
required by the HSR Act, or as set forth in Schedule 7.4 hereto, or those
already acquired by the Seller, no certificates, permits, licenses,
authorizations, consents or approvals of, or registration, qualification
or filing with, any governmental authority or other Person
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(including but not limited to waste water discharge permits, storm water
discharge permits, and air discharge permits) are required in connection
with the execution, delivery and performance of this Agreement by Seller
or, to the best of Seller's knowledge, are required for the lawful conduct
and use, occupation and operation of the Acquired Assets or to permit the
Buyer to use the Acquired Assets consistent with the present conduct and
use, occupation and operation of the Acquired Assets.
The Seller possesses and, on the Closing Date shall assign to the Buyer,
to the extent such can be assigned, all licenses and permits necessary to
operate the Real Property for its present use and in accordance with
Environmental Laws and all material terms and conditions of such licenses
and permits have been duly complied with and all such licenses and permits
are in good standing.
Seller shall ensure that the Real Property has water and septic systems or
services that meet local and state government building laws, codes,
permits and regulations ("Codes") in all material respects, as well as the
actual permits for such systems, if required. In the event such systems do
not have permits or do not meet the codes in all material respects, Seller
shall have sixty (60) days from the date of Closing to cause such systems
to meet the codes in all material respects and/or to obtain permits or to
compensate Buyer for the costs of doing so.
7.5 Litigation. Schedule 7.5 hereto sets forth a listing of all actions,
suits, proceedings or governmental investigations pending or, to the
knowledge of Seller, threatened against Seller which materially adversely
affect or are reasonably likely to materially adversely affect the
Acquired Assets, the Operations (including the financial condition of the
Operations) or Seller's ability to perform its obligations under this
Agreement.
7.6 Compliance with Instruments. Seller is not in default under, or in breach
of any material term or provision of any contract, lease, agreement or
other instrument to which Seller is a party with respect to the Operations
or by which any of the Acquired Assets are bound.
Except as set forth in Schedule 7.6 hereto, the execution, delivery and
performance of this Agreement by Seller does not and will not conflict
with or result in a breach of or a
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default under, or give rise to any right of termination, cancellation or
acceleration with respect to, any of the terms, conditions or provisions
of any indenture, contract, agreement, license, lease or other instrument
to which Seller is a party in respect of the Operations or by which any of
the Acquired Assets may be bound including the Articles of Incorporation
and the Bylaws of Seller, nor will it violate any order, writ, injunction
or decree applicable to Seller in respect of the Operations or the
Acquired Assets.
7.7 Brokers. No person acting on behalf of Seller or under the authority of
Seller is or will be entitled to any broker's, finder's or similar fee,
directly or indirectly from Buyer in connection with the asset purchase
contemplated in this Agreement.
7.8 Title and Condition of Acquired Assets. Except as set forth in Schedule
7.8, which sets forth the "Permitted Encumbrances", Seller has good,
marketable and indefeasible title to all of the Acquired Assets, free and
clear of all mortgages, liens, charges, claims, leases, restrictions and
encumbrances whatsoever.
Neither the use or location of the buildings on the Owned Real Property
encroach on or interfere with any legal rights of any third parties.
Except as disclosed in this Agreement, Seller has no knowledge of any
facts or circumstances, relating to the Real Property, that would prevent
the continued operation of the activities presently being conducted on the
Real Property.
Except as disclosed in Schedule 7.8, there is no agreement of any kind
whereby any Person or Persons have any right to acquire or obtain (by
purchase, gift, merger, consolidation or otherwise) an interest in any of
the Acquired Assets, except for contracts for the sale of products to
customers made in the ordinary course of business.
All of the Acquired Assets have been maintained in accordance with the
normal maintenance and repair policies of Seller and, to Seller's
knowledge, are in a state of repair (ordinary wear and tear excepted)
which is adequate for the normal use of such property in the Operations.
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7.9 Inventory. The Inventory covered by this Asset Purchase Agreement consists
of items of a quality and condition useable or saleable in the ordinary
course of the business of Seller, except to the extent such Inventory is
valued at less than full value in the Effective Date Balance Sheet
described in Section 4.3.
This Section is intended only for the purpose of Seller's representations
and warranties, and in no way affects the valuation of the Inventory under
Section 4.3 herein.
7.10 Vehicular Equipment. Schedule 7.10 (a) contains a list of all vehicular
equipment owned or leased by the Seller with respect to the Operations.
Such vehicular equipment is in roadworthy condition and is, and shall be
on the Closing Date capable of satisfying the inspection requirements and
performance standards prescribed by all applicable state and federal laws
and regulations for its particular type or class, except for the
exceptions listed on Schedule 7.10 (b).
7.11 Intentionally deleted.
7.12 Insurance Policies. Schedule 7.12 hereto lists and describes all policies
of insurance held by Seller on the date hereof with respect to the
Operations.
All policies of insurance listed in Schedule 7.12 hereto are, and shall be
through Closing, in full force and effect.
7.13 Taxes. All material taxes, assessments and governmental charges which have
been levied or assessed, or which have become due with respect to or which
may encumber the Acquired Assets, for any taxable year of the Seller
ending on or before December 31, 1997, have been or will be paid before
delinquency.
All material real and personal property tax returns with respect to
applicable Acquired Assets have been, or will be, timely filed and paid,
and are complete and accurate in all material respects and there are no
disputes pending or, to Seller's knowledge, threatened over any such
returns.
For the purpose of this Section 7.13, the word "tax" includes any tax
(including, without limitation, any tax on income, corporations, capital,
excise, property, sales, transfers, water, business, goods and services
and any fuel
Page 18
tax), any duty, (including, without limitation, any interest, penalty or
additional costs relating thereto) imposed by any competent taxing
authority.
7.14 Environmental Matters. Except as set forth in Schedule 7.14 hereto:
a. Compliance With Laws. The Acquired Assets and the Operations are in
compliance in all material respects with the requirements of all
Environmental Laws as in effect as of the date hereof, including,
without limitation, any and all requirements with respect to
permits, licenses, and other authorizations required by any
Environmental Law as in effect as of the date hereof;
b. No Claims or Investigations. The Seller has not received any written
claim or notice of an investigation, within the last three (3)
years, or any oral claim or notice of an investigation within the
last one (1) year and, to Seller's best knowledge, no claim or
investigation is threatened against, the Acquired Assets or the
Operations by any governmental agency or authority or any other
Persons alleging a violation by Seller of, or a noncompliance of any
Acquired Asset with, any Environmental Law as in effect as of the
date hereof;
c. No Hazards on Property. Except for the use, manufacture, treatment,
storage or disposal of Environmental Hazards in the ordinary course
of the business of Seller and in material compliance with all
Environmental Laws as in effect as of the date hereof, no
Environmental Hazard is or has been used, treated, stored, disposed
of, released, spilled, generated, manufactured or otherwise handled
by Seller or, to the knowledge of Seller, otherwise come to be
located on or under, or is threatened to become located on or under
the Real Property or at the Operations.
d. Underground Tanks. To the best of Seller's knowledge, Schedule 7.14
(d) sets forth the size, location, construction, date of
installation, use and testing history of all underground storage
tanks (whether or not excluded from regulation under any
Environmental Law as in effect as of the date hereof, and whether or
not currently in use) on the Owned or to the Seller's
Page 19
best knowledge, on the Leased Real Property.
e. Full Environmental Disclosure. The Seller has fully disclosed to the
Buyer all environmental reports, investigations, assessments,
audits, studies, permits, licenses and records in the possession or
control of the Seller with respect to the Operations and the Real
Property and relating to Environmental Hazards or Environmental Laws
as in effect as of the date hereof.
Notwithstanding anything to the contrary contained in this Agreement, this
Section 7.14 contains the only representations and warranties of the
Seller with respect to the matters addressed herein.
7.15 Intellectual Property. Schedule 7.15 sets forth all intellectual property
material to the conduct of the Operations which is: a) owned by the Seller
and used in the Operation or b) owned by the Operations. The present
conduct of the Operations by the Seller does not infringe upon any
presently existing rights, patents, trademarks, copyrights or other trade
rights of any Person.
7.16 Employees and Labor Relations Matters. Except as set forth in Schedule
7.16, Seller represents and warrants that, with respect to the Operations:
a. Compliance with laws. Seller has complied in all material respects
with all labor and employment laws, including provisions thereof
relating to wages, hours, equal opportunity, collective bargaining
and the payment of social security and other taxes;
b. No actions pending. There is no unfair labor practice charge,
complaint, or other material employment action against Seller
pending or, to Seller's best knowledge, threatened before any
governmental agency and Seller is not subject to any order to
bargain by any governmental agency;
c. No strikes, etc. There is no labor strike, dispute, request for
representation, slowdown or stoppage pending or, to Seller's best
knowledge, threatened against Seller;
d. No grievances. There are no grievances that might have a material
adverse effect on the Acquired Assets or the
Page 20
Operations and no arbitration proceeding arising out of or under any
collective bargaining agreement is pending and, to the best of
Seller's knowledge, no basis exists for any such grievance or
arbitration proceeding;
e. No restrictions on employees. To the best knowledge of Seller, no
employee of Seller is subject to any non-compete, nondisclosure,
confidentiality, employment, consulting or other agreement with
Persons other than Seller relating to the Operations.
7.17 Employee Benefit Plans. Schedule 7.17 hereto lists all plans, programs,
employment contracts or arrangements of Seller that are applicable to the
employees of the Operations, including plans not maintained by Seller but
to which it contributes or is obligated to contribute relating to bonus,
incentive compensation, severance pay, profit sharing, retirement,
pension, group insurance, disability, death benefits or other benefits or
similar arrangements, including but not limited to "employee benefit
plans" within the meaning of Section 3(3) of ERISA relating to any of the
Operations' past or present employees, which are in effect on the date
hereof or which have a present or continuing effect on the Operations,
even if discontinued at an earlier date ("Plans").
As of the date of the Closing and except as stated in Schedule 7.17
hereto:
a. The Plans comply in all material respects with the requirements of
law;
b. With respect to any Plan that is subject to Title IV of ERISA or the
minimum funding requirements of Section 412 of the Code or Part 3 of
Title I of ERISA, other than a multiemployer plan within the meaning
of Section 4001(a)(3) or ERISA ("multiemployer plans"), the present
value of all accrued benefits under any such Plan did not, as of the
most recent valuation date thereof, exceed the fair market value of
the assets of such Plan allocable to such accrued benefits
c. There are no unfunded liabilities for retiree medical and life
insurance benefits (or any other post retirement benefits, including
pension and retirement plan benefits other than those set forth on
Schedule 7.17) for any such Plan determined as of the most
Page 21
recent valuation date, other than employee-paid benefit
contributions required;
d. Seller does not and will not, on the Closing Date, have any material
withdrawal liability under any Plan that is a multi-employer pension
plan under Part I of Subtitle E of Title IV of ERISA, if as of the
Closing Date Seller were to have a complete or partial withdrawal
(as defined in Sections 4203 and 4205 of ERISA, respectively) from
such Plan;
e. There are no pending or to the best of Seller's knowledge
anticipated claims against or otherwise involving any of the Plans,
or no suit, action or other litigation (excluding routine claims for
benefits incurred in the ordinary course) have been brought against
or with respect to any such Plan;
f. All contributions, reserves, or premium payments, required to be
made as of the date hereof to the Plans have been made or provided
for;
g. No Plan or trust created thereunder, or any trustee or administrator
thereof, has engaged in a prohibited transaction which could subject
such Plan or the Buyer or the Seller to tax or penalty on prohibited
transactions imposed under Section 4975 of the Code or Sections 409
or 502(c) of ERISA;
h. If such Plan is an employee pension plan as defined in Section 3(2)
of ERISA, the Plan has applied for and received favorable letters of
determination from relevant tax authorities relative to each such
Plan and all material amendments thereto; and
7.18 Xxxxxx Manufacturing's Contracts. Schedule 7.18 hereto sets forth a list
of each lease, employment agreement, guarantee, and each material loan
agreement, mortgage, pledge agreement, each material agreement or other
material instrument to which Xxxxxx Manufacturing is a party or to which
the Seller is a party with respect to the Operations or by which any of
the Acquired Assets are bound.
For purposes hereof, an agreement is material only if it calls for
payments or otherwise creates obligations (contingently or otherwise) to
or from Xxxxxx Manufacturing or the Seller with respect to the Operations
of an amount or
Page 22
with a value in excess of $50,000.00 during any 12-month period after the
date hereof or in an aggregate amount or value of $100,000.00 or more over
the lifetime of such contract or agreement.
In the case of inventory purchase agreements or product sales agreements,
Schedule 7.18 describes only those purchase contracts with a value of
$50,000 or greater and those sales agreements with a value of $50,000 or
greater.
7.19 Financial Statements of Seller. Schedule 7.19 contains true and complete
copies of Xxxxxx Manufacturing's a) December 31, 1996 financial statements
and b) balance sheet and income statement as of August 2, 1997 and for the
period ending August 2, 1997, respectively.
The financial statements referred to in clauses a) and b) above (the
"Financial Statements") present fairly the financial condition of Xxxxxx
Manufacturing and the results of its operations for the corresponding
periods specified above and were prepared in accordance with GAAP, applied
on a basis consistent with Seller's methods and procedures for valuing
assets and liabilities as are historically used by Seller in relation to
the Operations. The Financial Statements are true and correct in all
material respects and do not contain any misstatement of a material fact,
or omit to state any fact known to Seller required to make such Financial
Statements not misleading.
7.20 Conduct and Transactions Since August 2, 1997. Except as otherwise
disclosed in Schedule 7.20 or provided in this Agreement, since August 2,
1997 there has been no material adverse change in Xxxxxx Manufacturing's
financial condition, assets, liabilities or business and the Seller has,
with respect to the Operations:
a. Business. Conducted the Operations only in the ordinary course and
substantially in the manner in which such Operations were being
conducted on August 2, 1997;
b. Indebtedness. Not created, incurred, assumed, guaranteed or
otherwise become liable with respect to any indebtedness for
borrowed money other than in the ordinary course of business;
c. Transaction. Not entered into any transactions
Page 23
whatsoever other than in the ordinary course of business;
d. Insurance. Continued to be covered by liability, workers'
compensation, casualty and other insurance of such types and in not
less than such amounts as heretofore carried with respect to the
Operations (except to the extent that insurable values have
decreased);
e. Assets. Not sold, leased, mortgaged, pledged or otherwise encumbered
or disposed of any of its assets or properties or agreed to do any
of the foregoing, except in the ordinary course of business in arm's
length transactions;
f. Waivers. Not waived any material rights of Seller whether or not
such were in the ordinary course of business or were consistent with
past practice;
g. Expenditures. Not made or committed to make any capital
expenditures, capital additions or capital improvements aggregating
more than $50,000.00;
h. Contracts. Not entered into, or terminated, any contract, agreement,
commitment or understanding applicable to the Operations with a
value, cost, or commitment in excess of $50,000.00 other than raw
material purchases or sales to Xxxxxx Manufacturing's customers made
in the ordinary course of business.
Notwithstanding anything to the contrary contained in this Agreement, under no
circumstances shall the fact that any employees, other than the Key Management
Employees of the Operations, have terminated their employment constitute a
material adverse change in Xxxxxx Manufacturing's financial condition, assets,
liabilities or business.
7.21 Asset Listing. The Acquired Assets shall include but are not limited to
those assets listed on the most recent depreciation schedule for such
assets which is attached as Schedule 7.21 and shows the purchase price,
date of purchase and accumulated depreciation on each item.
7.22 Product Warranties. Schedule 7.22 contains all of the standard product
warranties and service guarantee policies
Page 24
of Seller (the "Product Warranties") for all products sold for which
warranty periods have not expired and which were furnished to all
customers by Seller in connection with the products, materials and
services supplied by Seller to its customers up to the Closing.
Except as set forth in Schedule 7.22, there are no material product or
service guarantees, agreement of guarantees, indemnifications, assumptions
or endorsements, quality guarantees, return policies, customer volume
incentive programs, or rebate policies, or any other customer support
committed by Xxxxxx Manufacturing to its customers.
Xxxxxx Manufacturing's costs for internal and external services, labor,
time, materials and money supplied by Xxxxxx Manufacturing for claims made
on Product Warranties or for other products which have been alleged to
have manufacturing defects that prevent the products from being used as
warranted (together, the "Warranty Costs") have been less than $500,000
per year for the 3 calendar years preceding Closing.
7.23 Full Disclosure. Except as set forth in Schedule 7.23 or as reflected in
this Agreement or in any other schedules attached hereto, to Seller's
knowledge there are no other existing matters or liabilities, contingent
or otherwise, which materially adversely affect or have a substantial
likelihood in the future of materially adversely affecting the Acquired
Assets.
To Seller's knowledge, no representation or warranty by Seller in this
Agreement, nor any statement or certificate furnished or to be furnished
to Buyer pursuant hereto or in the agreements contemplated hereby,
contains or will contain any untrue statement of material fact, or omits
or will omit to state a material fact known to Seller necessary to make
the statements contained herein or therein not misleading.
Seller is not aware of any liabilities of any nature that could pass to
Buyer as a result of the transactions contemplated by this Agreement,
whether accrued, absolute, contingent or otherwise, including without
limitation, tax liabilities due or to become due, whether incurred or
measured by Seller's income for any period prior to the Closing Date, or
arising out of transactions entered into, or any state of facts existing
prior thereto, except the Assumed Liabilities or other liabilities
undertaken by Buyer
Page 25
pursuant to this Agreement.
The Seller does not make, and has not made, any representations or
warranties relating to the Seller, Xxxxxx Manufacturing, the Operations,
the Acquired Assets, the Assumed Liabilities or otherwise in connection
with the transactions contemplated hereby other than those expressly set
forth herein which are made by the Seller.
Without limiting the generality of the foregoing, the Seller has not made,
and shall not be deemed to have made, any representations or warranties in
any presentation concerning the Operations in connection with the
transactions contemplated hereby, and no statement made in any such
presentation shall be deemed a representation or warranty hereunder or
otherwise, except as specifically made herein. It is understood that any
cost estimates, projections or other predictions, any data, any financial
information or any presentations are not and shall not be deemed to be or
to include representations or warranties of the Seller, except as
specifically made herein.
Notwithstanding anything to the contrary contained in this Agreement or in
any of the Schedules, any information disclosed in one Schedule shall be
deemed to be disclosed in all Schedules.
7.24 Related Party Transactions. Except as expressly provided herein or as
Buyer may otherwise consent in writing, Seller has not, with respect to
the Operations, engaged in any transaction with any related parties other
than in the ordinary course of business consistent with prior practice and
upon terms no less favorable to Seller than it would obtain in a
comparable arm's length transaction with a Person not affiliated with
Seller.
7.25 Employee Notifications. Seller has given the notices described in Schedule
7.25 and, by doing so, to Seller's best knowledge, Seller has given
adequate notice to all of Xxxxxx Manufacturing employees and employee
bargaining units and all local and state and federal governments required
to satisfy all state and federal laws which prescribe that such notice be
given in the event of the termination of an employee.
7.26 Knowledge. Whenever a representation or warranty made by
Page 26
the Seller herein refers to the knowledge of the Seller, such knowledge
shall be deemed to consist only of the actual knowledge on the date hereof
of Seller's management employees, who are listed on Schedule 7.26.
ARTICLE 8
BUYER'S COVENANTS
8.1 Purchase Price. Upon execution of this and all transactions required at
Closing, Buyer shall pay the Purchase Price as described in Section 4.1
herein.
8.2 Sales and Use Taxes. Buyer shall be responsible for any sales or use tax
due on the sale of the Acquired Assets.
8.3 Obligation to Perform Assumed Liability Obligations. Buyer shall perform
all of the obligations which it assumes: a) under the Assumed Liabilities
or b) otherwise in this Agreement.
ARTICLE 9
SELLER'S COVENANTS
9.1 UCC Reports. At Seller's expense, Seller will provide to Buyer, on or
before the Closing, copies of a UCC search, covering all personal property
which forms part of the Acquired Assets, and copies of all recorded
instruments and documents referred to therein.
9.2 Encumbrances. At Buyer's option Seller shall take all necessary actions to
unencumber any encumbered Acquired Assets (including, specifically the
Owned Real Property) from all encumbrances, except for Permitted
Encumbrances and those encumbrances expressly assumed herein, prior to
Closing, at Closing or as soon after Closing as required by the Buyer.
9.3 Asset Listing. At Closing, Seller shall provide Buyer with an updated
version of Schedule 7.21, current as of December 31, 1997, which shall be
updated to the Closing Date as part
Page 27
of the Article 4 audit.
9.4 Title Insurance. At Seller's expense, Seller shall provide Buyer, at
Closing, with an ALTA policy of title insurance with extended coverage for
the Owned Real Property.
9.5 Surveys. Seller shall, at its cost, provide current surveys of each parcel
of the Owned Real Property, showing all structures, roads, parking areas,
easements and geographical features, such as waterways or drainage canals.
9.6 Real Property Landlord Statement. For all leases of Leased Property
assumed under this Agreement Seller shall obtain a statement from the
lessor involved outlining any items requiring maintenance, cleanup or
repair under the terms of the lease.
Such estoppel statement shall also include a statement of assignment
approval, if required by the terms of the relevant lease, by all lessors
for leases of Leased Real Property assigned as part of this Agreement or
assigned as part of an ancillary agreement to Buyer.
9.7 Taxes and Compliance with Laws. Seller shall promptly and properly file
when due all federal, and other tax returns, reports, and declarations
required to be filed by Seller with respect to the Operations prior to the
Closing, and shall pay or make full and adequate provision for the payment
of all taxes and governmental charges due from or payable by Seller in
connection with such returns, reports and declarations. Seller shall use
its best efforts to comply in all material respects with all laws and
regulations applicable to the Acquired Assets and the Operations.
9.8 Transfer Taxes and Fees. Seller shall be responsible for any real estate
transfer tax applicable to the transfer of the Acquired Assets.
Seller shall also be responsible for any fees related to the recording or
filing of any real estate deeds or conveyances.
9.9 Sale of Enterprise. Seller declares that the assets sold under this
agreement constitute a substantial part of the enterprise and is made
outside the ordinary course of business of Seller.
Page 28
9.10 Conduct Until Closing. Except as expressly provided herein or as set forth
in Schedule 9.10 or as Buyer may otherwise consent in writing, Seller
agrees that from the date of this Agreement to the Closing Date, Seller
agrees to use its best efforts to conduct the Operations only in the
ordinary course and substantially as heretofore operated and will act in a
manner so that, as of the Closing Date, the representations and warranties
set forth in Article 7 will be true at the Closing Date. Furthermore,
Seller shall use its best efforts:
a. preserve intact the present business organization and goodwill of
the Operations and its relationship with Persons having business
dealings with the Operations including, without limitation,
suppliers, lenders, creditors, distributors, customers and others
having business or financial relationships with the Operations, and
b. keep available the services of the employees listed on Schedule 9.10
(b) (the "Key Management Employees") on terms and conditions no less
favorable to Seller than those on which the Key Management Employees
are presently employed.
This Section 9.10 shall not give rise to any rights on behalf of Persons
not parties to this Agreement.
ARTICLE 10
MUTUAL COVENANTS
10.1 Permits, Consents, Approvals and Further Cooperation. As soon as possible
following the execution of this Agreement, Seller and Buyer shall each use
reasonable efforts to obtain all permits, consents and approvals from any
governmental or regulatory body or any other Person where required for the
consummation of the Closing and the transactions contemplated hereby.
Each Party, at the request of the other and without additional
consideration, shall execute and deliver or cause to be executed and
delivered from time to time such further instruments and shall take such
further action as the requesting Party may reasonably require in order to
carry
Page 29
out more effectively the intent and purpose of this Agreement.
10.2 No Inconsistent Actions. Buyer and Seller will not voluntarily undertake
any course of action materially inconsistent with the provisions or intent
of this Agreement, and each such Party will promptly do all acts and take
all such measures as may be appropriate to comply in all material
respects, as soon as practicable, with the terms, conditions and
provisions of this Agreement.
10.3 Confidentiality Covenants. Prior to the Closing Date, if this Agreement is
terminated, each Party hereto will, and will cause its employees,
consultants and other representatives to, hold in strict confidence all
Confidential Information except as provided in this Agreement.
"Confidential Information" means all oral or written data, reports,
records or materials ("Information") provided by a Party to the other or
its agents, as well as the terms and conditions and existence of this
Agreement, except to the extent the Information: was already known to the
Party provided with the Information at the time of its disclosure
hereunder; is independently obtained by the Party provided with the
Information from a third party having no duty of confidentiality to the
other party; is independently developed by the party provided with the
Information without use of any Information supplied hereunder; or is
obligated to be disclosed by the party receiving the Information pursuant
to applicable law, regulation or legal process (provided, that in the
event that a Party becomes legally compelled to disclose any of the other
Party's Confidential Information, such Party shall provide the other with
prompt notice thereof, specifying in reasonable detail the nature of such
disclosure, so that the other Party may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this
Agreement. Each Party shall use, at the request of the other, all
reasonable efforts to cooperate with the other Party in seeking a
protective order or other appropriate remedy in respect thereof. In the
event that such protective order or other remedy is not obtained, or the
other Party waives compliance with provisions of this Agreement, only that
part of the Confidential Information that each Party is advised by written
opinion of counsel is legally required, will be disclosed and each Party
will exercise its reasonable best
Page 30
efforts to ensure that confidential treatment will be accorded such
Confidential Information.
Furthermore, each Party will return to the other all Confidential
Information documents, copies of same, work papers and other materials
containing or based upon the Confidential Information, together with an
affidavit of Buyer or Seller, as the case may be, affirming that all such
Confidential Information has been returned.
10.4 Public Announcements. No Party shall make, nor permit any of its
affiliates or representatives to make, any news release or other public
disclosure pertaining to this Agreement or the transactions contemplated
hereby without the prior approval of the other Party or Parties as to both
form and content, which approval shall not be unreasonably withheld unless
such disclosure is required by applicable securities laws or stock
exchange rules. In any case, the Buyer shall have the right to review any
disclosure Seller plans to make, in advance of the disclosure.
10.5 Consents and Approvals. As soon as possible following the execution of
this Agreement, Seller and Buyer shall each have used reasonable efforts
to obtain the consent or approval of each Person whose consent or approval
shall be required in order to permit the purchase and sale of the Acquired
Assets as contemplated herein.
10.6 Delivery of Agreements. In further consideration for the promises herein,
Seller and Buyer shall execute, enter and deliver to each other all
agreements and documents required under this Agreement including, but not
limited to the following at Closing:
a. Xxxx of Sale - transferring to Buyer all of the Acquired Assets free
of all liens and encumbrances;
b. Asset List - Schedule 7.21 updated through the December 31, 1997;
c. UCC Search - showing the Acquired Assets free and clear of any
encumbrances which are not accepted by the Buyer except those to be
paid off at Closing;
d. Assignment and Assumption Agreement - transferring all of the
Purchase Contracts, Sale Contracts, Miscellaneous Contracts and
other rights included in
Page 31
the Acquired Assets, and whereby the Buyer assumes and agrees to
perform all of the Seller's obligations, duties and liabilities
contained in the Assumed Liabilities;
e. Assignment of Intellectual Property - transferring all intellectual
property contained in the Acquired Assets to the Buyer;
f. General Warranty Deed - transferring the Owned Real Property to the
Buyer, including all buildings, improvements and fixtures erected
thereon, and together with all rights appurtenant thereto;
g. ALTA Title Policy - insuring title to the Owned Real Property and
including only those exceptions to good title which are acceptable
to the Buyer;
h. Vehicle Titles - transferring title to all vehicles included in the
Acquired Assets to the Buyer;
i. Noncompete Agreement - obligating Seller not to compete with Buyer;
j. Supply Agreement - Seller and Buyer shall have executed an agreement
for Buyer to supply Seller with products;
k. Trademark License Agreement - for Buyer's use of the names "Xxxxxx"
and "Doorman," and any logos associated therewith;
x. Xxxxxx Estoppel and Consent to Assignment Agreement releasing the
Parties from liability for pre-Closing actions or inactions and
granting Seller the right to assign the agreement to Buyer;
m. Employment Agreements - for Buyer's employment of the Key Management
Employees after the Effective Date;
n. Resolutions of the Board of Directors - all corporate parties;
o. Certificates of Good Standing - all corporate parties;
p. Opinion of Seller's counsel - Buyer shall have received an opinion,
dated the Closing Date, of counsel to Seller; and
Page 32
q. Opinion of Buyer's counsel - Seller shall have received an opinion,
dated the Closing Date, of Buyer's in-house counsel.
10.7 Inventory Agreement. Prior to Closing, both Seller and JELD-WEN shall work
together to manage the inventory levels of Xxxxxx Manufacturing in order
to 1) have the proper inventory at Closing as necessary for the ongoing
business, 2) minimize the overall inventory levels as much as is
practical, and 3) minimize the obsolete, damaged and Slow Moving inventory
as much as possible.
10.8 Certain Covenants Related to Employees. Buyer shall permit each person who
is an employee of the Seller with respect to the Operations immediately
prior to the Closing Date (including such persons who are absent from work
as of the Closing Date because of vacation, disability or other leave
authorized by the Seller) who becomes an employee of the Buyer as of the
Closing Date (each, a "Buyer's Oshkosh Employee") to take unpaid vacation
under Buyer's vacation policies as Buyer shall apply them to Buyer's
Oshkosh Employees.
Within 10 days after the Closing Date, Seller shall pay to the Buyer's
Oshkosh employees the amount of the vacation pay so accrued to such
Buyer's Oshkosh Employees as of the Closing Date.
ARTICLE 11
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
11. Conditions to Seller's Obligation to Close. The obligation of Seller to
transfer, assign, and deliver the Acquired Assets to Buyer pursuant to
this Agreement is subject to the satisfaction (unless waived in writing by
Seller) of each of the following conditions at and as of the Closing:
11.1 Representations and Warranties Correct. The representations and warranties
of Buyer contained in Article 6 hereof shall be true and correct in all
material respects on and as of the date of this Agreement and at and as of
the Closing as though made at and as of the Closing, except as affected by
the transactions
Page 33
contemplated by this Agreement, or if such failure of a representation or
warranty to be true and correct is cured by Buyer on or before the Closing
Date.
11.2 Performance of Obligations by Buyer. Buyer shall have performed and
complied with in all material respects all agreements and conditions
required to be performed, or complied with by Buyer prior to or at the
Closing, including the covenants in Articles 8, 10 and 11 under this
Agreement.
11.3 Compliance Certificate. Buyer shall have delivered to Seller a
certificate, dated as of the Closing Date, of a duly authorized officer of
Buyer certifying that the conditions specified in Sections 11.1 and 11.2
hereof have been satisfied.
11.4 Miscellaneous Documents. Seller shall have received all documents Seller
may reasonably request relating to the existence of Buyer and Buyer's
authority to execute, deliver and perform this Agreement, including,
without limitation, a certificate pursuant to which the Buyer acknowledges
that it has been afforded the opportunity to evaluate the merits of the
transactions contemplated hereby.
11.5 Consents and Notices. The applicable waiting period under the HSR Act,
with respect to the transactions contemplated by this Agreement, shall
have expired or been terminated by appropriate governmental authorities.
Buyer shall have obtained or effected all consents, approvals, waivers,
notices and filings required in connection with the execution and delivery
by Buyer of this Agreement or consummation by Buyer of the transactions
contemplated thereby, and any notice or waiting period relating thereto
shall have expired with all requirements lawfully imposed having been
satisfied in all material respects.
11.6 Absence of Litigation. No order, stay, judgment or decree shall have been
issued, which remains in effect, by any court restraining or prohibiting
the Closing and no action, suit or proceeding shall have been commenced,
and be pending, by any governmental or regulatory body seeking to restrain
or prohibit (or questioning the validity or legality of) the consummation
of the transactions contemplated by this Agreement.
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11.7 Purchase Price. The Purchase Price shall have been paid as described in
Section 4.1 herein.
ARTICLE 12
CONDITIONS TO BUYER'S OBLIGATION TO CLOSE
12. Conditions to Buyer's Obligation to Close. The obligation of Buyer to
purchase the Acquired Assets from Seller pursuant hereto is subject to the
satisfaction (unless waived in writing by Buyer) of each of the following
conditions at and as of the Closing:
12.1 Representations and Warranties Correct. The representations and warranties
of Seller contained in Article 7 hereof shall be true and correct in all
material respects on and as of the date of this Agreement and at and as of
the Closing as though made at and as of the Closing, except as affected by
the transactions contemplated by this Agreement, or if such failure of a
representation or warranty to be true and correct is cured by Seller on or
before the Closing Date.
12.2 Performance of Obligations by Seller. Seller shall have performed and
complied in all material respects with all agreements and conditions
required to be performed or complied with by Seller under this Agreement
prior to or at the Closing including the covenants in Articles 9, 10 and
12.
12.3 Compliance Certificate. Seller shall have delivered to Buyer a
certificate, dated as of the Closing Date, certifying that the conditions
specified in Section 12.1 and 12.2 hereof have been satisfied.
12.4 Miscellaneous Documents. Buyer shall have received all documents Buyer may
reasonably request relating to the existence of Seller and Seller's
authority to execute, deliver and perform this Agreement, including
without limitation, a list of Seller's officers and directors.
12.5 Intentionally Omitted.
12.6 Consents and Notices. The applicable waiting period under the HSR Act,
with respect to this asset purchase, shall have expired or been terminated
by appropriate
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governmental authorities. Seller shall have obtained or effected all other
consents, approvals, waivers, notices and filings required in order to
permit the purchase and sale of the assets as contemplated herein, and any
notice or waiting period relating thereto shall have expired with all
requirements lawfully imposed having been satisfied in all material
respects.
12.7 Absence of Litigation. No order, stay, judgment or decree shall have been
issued, which remains in effect, by any court restraining or prohibiting
the Closing and no action, suit or proceeding shall have been commenced,
and be pending, by any governmental or regulatory body seeking to restrain
or prohibit (or questioning the validity or legality of) the consummation
of the transactions contemplated by this Agreement.
ARTICLE 13
LIMITATIONS ON LIABILITIES
13.1 Survival of Representations and Warranties. The representations and
warranties made in this Agreement by Seller and by Buyer and in any
certificates delivered by Seller hereunder shall survive the Closing and
be valid and actionable for a period of two (2) years after the Closing
Date.
Notwithstanding the foregoing, for claims relating to taxes, the survival
time period for representations and warranties and indemnification limits
shall extend until one week after the date upon which the relevant statute
of limitations for liability expires.
Notwithstanding the foregoing, the language in this Section 13.1 and its
two (2) year time limit described herein shall not apply to or in any way
affect any of the indemnification provisions described in Article 14,
except for the specific provisions in Section 14.1 (a) regarding
indemnification for Representation and Warranty Claims.
13.2 Insured Claims. A Party shall have no liability for any claim to the
extent the claim is wholly covered by insurance maintained by or for the
benefit of such Party (including,
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in the case of Buyer, any such insurance coverage applicable to the
Acquired Assets) which was in effect on the Closing Date, provided the
Party actually receives the benefit of any such coverage.
13.3 Basket - Representations and Warranties and Product Warranty Claims. No
Damages shall be recoverable by Buyer for Representation and Warranty
Claims or for Product Warranty Claims (and no claim therefor shall be
asserted for any purpose whatsoever hereunder) unless the aggregate amount
of the Buyer's Representation and Warranty Claims and Product Warranty
Claims exceeds $150,000 and then only to the extent the aggregate of such
claims exceed $150,000.
Buyer shall assume the first $150,000 of Damages claimed against Buyer
which are Representation and Warranty Claims or Product Warranty Claims
which arose out of Seller's actions or inactions prior to the Closing Date
and Buyer shall not be liable for or assume any other liabilities of
Seller unless specifically assumed hereunder.
13.4 Product Warranty Claims Limit. Seller's obligation under this Agreement to
indemnify Buyer for Product Warranty Claims shall only apply to Product
Warranty Claims which arise before 5 years after the Effective Date.
13.5 Representations and Warranties Claims Limit. Seller's obligation under
this Agreement to indemnify Buyer for Representation and Warranty Claims
shall only apply to Representation and Warranty Claims which arise before
2 years after the Effective Date.
13.6 Contingent Liability Claims Limit. Seller's obligation under this
Agreement to indemnify Buyer for Contingent Liability Claims shall only
apply to Contingent Liability Claims which arise before 7 years after the
Effective Date.
13.7 Environmental Liability Claims Limit. Seller's obligation under this
Agreement to indemnify Buyer for Environmental Liability Claims shall only
apply to Environmental Liability Claims which arise before 5 years after
the Effective Date.
13.8 Cap on Liability. Seller's obligation under this Agreement to indemnify
Buyer for Representations and Warranties Claims, Product Warranty Claims
and Environmental Liability Claims shall be limited, in
the aggregate, to $25,000,000.
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13.9 No Double Adjustment. The amount of Damages Buyer may claim in an
indemnification claim hereunder shall be reduced by the amount Buyer has
received, at or after the Closing, as an adjustment to the Purchase Price
under Article 4 for such Damages.
Notwithstanding the foregoing, in the event of actual fraud, the limits on the
survival of representations and warranties and the limits on indemnification in
this Agreement shall not be effective.
Also notwithstanding the foregoing, the limitations in Article 13 and 14 shall
in no way preclude Buyer from the ability to defend any claim on the basis that
the liability is not a liability of Buyer specifically assumed hereunder and
nothing herein shall limit the right Buyer would otherwise have to make a cross
complaint under this Agreement against Seller for liabilities not assumed
hereunder.
The Parties agree that Buyer shall in no way be construed as a successor entity
for any employment or other liabilities of Seller, except for those liabilities
specifically assumed hereunder.
ARTICLE 14
INDEMNIFICATION
14.1 Seller's Indemnification. Subject to the limitations in Articles 13 and 15
and this Article 14, Seller agrees to defend, hold harmless and indemnify
and compensate Buyer against and in respect of any and all liabilities,
losses, damages, deficiencies, actions, suits, proceedings and demands
(collectively, "Damages") resulting from or relating to any of the
following:
a. Breach of Representation, Warranty, or Covenant.
i. Any breach or nonfulfillment by Seller of any representation
or warranty contained in this Agreement, the attached
exhibits, schedules, or any other certificates or documents
furnished or to be furnished by Seller including, but not
limited to, those representations and warranties specified in
Articles 7, 9 and 10 ("Representation and Warranty Claims");
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ii. Any breach or nonfulfillment by Seller of any covenant
contained in this Agreement, the attached exhibits, schedules,
or any other certificates or documents furnished or to be
furnished by Seller including, but not limited to, those
covenants specified in Articles 7, 9 and 10;
Buyer shall not be precluded or limited from receiving
indemnification from Seller under this Article 14 for the reason
that Seller did not breach a representation or warranty with respect
to such claim, if such claim can be made under another
indemnification provision of this Article 14;
b. Product Warranty Claims. All claims arising from or related to
claims for deficient, defective or damaged products produced,
purchased, sold or distributed or services rendered by Seller or its
agents prior to the Closing Date ("Product Warranty Claims");
c. Environmental Claims. Any use, treatment, storage, transportation or
disposal of any Environmental Hazard prior to the Closing, relating
to the Real Property or the Operations, to the extent that it is a
violation of or requires remediation pursuant to Environmental Law;
any environmental claim pertaining to Seller's ownership or use of
the Acquired Assets or the Operations to the extent such claim is a
claim of violation of or requires remediation pursuant to any
Environmental Law in effect as of the Closing Date (collectively,
"Environmental Liability Claims");
d. Normal Course Liabilities. Financial liabilities of Seller that
arise in the normal course of business which are not assumed
hereunder, such as debt and accounts payable ("Normal Course
Liabilities");
e. Bulk Sales Act. All liabilities related to any compliance required
under any bulk sales act and any liabilities resulting from
noncompliance therewith; and
f. Other Liabilities. All other liabilities of Seller of any nature,
other than the Assumed Liabilities, the Normal Course Liabilities,
the Environmental Liability Claims and the Product Liability Claims,
whether accrued, absolute, contingent or otherwise, existing on
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or arising out of Seller's conduct or omissions prior to the Closing
Date (including without limitation, liabilities under any lease or
contract assumed by Buyer related to acts or omissions of Seller
prior to the Closing and including any liability Buyer incurs for
withdrawal from any multi-employer benefit Plan listed in Schedule
7.17 or for an underfunded Plan listed in Schedule 7.17)
("Contingent Liability Claims").
14.2 Full Indemnity. The amount of either Party's obligation to indemnify the
other under this Article 14 and its subsections shall include in each case
penalties, costs and expenses, incurred by the other, including, without
limitation, reasonable attorneys' fees and interest.
Indemnification of a Party under this Article 14 shall include
indemnification of the Party's employees, directors and shareholders for
claims against such parties which could have been made against the Party.
14.3 Buyer's Indemnification. Subject to the limitations in Articles 13 and 15
and this Article 14, Buyer agrees to defend, indemnify and hold harmless
and compensate Seller against and in respect of any and all Damages
resulting from or relating to any claims due to any inaccuracy in, or
breach of, or nonfulfillment of, any representation, warranty or covenant
of Buyer contained in this Agreement, the attached exhibits, schedules, or
any other certificates or documents furnished or to be furnished by Buyer
including, but not limited to, those representations, warranties and
covenants specified in Articles 6, 8, 9 and 11 (if any of such items
survives Closing) to the extent any such liabilities, losses, damages,
deficiencies, actions, suits, proceedings and demands were not caused by
Seller.
Seller shall not be precluded or limited from receiving indemnification
from Buyer under this Article 14 for the reason that Buyer did not breach
a representation or warranty with respect to such claim, if such claim can
be made under another indemnification provision of this Article 14.
ARTICLE 15
INDEMNIFICATION PROCEDURE AND LAWSUITS
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15.1 General Indemnification Procedure.
a. Notice. If Buyer determines that it is entitled to indemnification
under the Agreement, Buyer shall notify the Seller in writing of its
right to indemnification (the "Claim"). Any notice pursuant to this
section shall set forth the relevant information respecting the
Claim. Any Party who receives notice of a claim against such Party
by a third party for which such Party believes it is or will be
entitled to indemnification hereunder shall promptly give notice of
such third party Claim to the other Party and shall provide copies
of correspondence related thereto.
The Seller shall then have a twenty (20) day period following
receipt of the Buyer's notice to issue a written response to Buyer,
indicating Seller's intention to either:
i. contest the Buyer's Claim;
ii. accept the Claim as valid on the condition that the amount of
the Claim can be determined and is reasonable; or
iii. unconditionally accept the Claim as valid.
b. Response. Seller's failure to provide a written response to the
Buyer's notice within the aforesaid twenty (20) day period shall be
deemed to be a conditional consent to the payment by Seller of the
Claim under Section 15.1(a)(ii).
15.2 Contesting Lawsuits.
a. Control of Defense. Seller shall be entitled, at its cost and
expense, to contest and defend by all legal proceedings ("Defend")
as it deems appropriate any Claim with respect to which it is called
upon to indemnify Buyer under the provisions of this Agreement;
provided, however, that
i. Seller accepts responsibility to pay the full amount of the
Claim and defense (when adjudicated,
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settled or due),
ii. the value of the Claim is under $300,000 and
iii. the Claim is not a Claim that will materially affect the
business of the Buyer (including, but not limited to
anti-trust and intellectual property claims (except for
intellectual property claims related to the intellectual
property licensed by Buyer to Seller pursuant to the Trademark
License Agreement which claims shall be governed by the terms
and conditions thereunder)) (a "High Impact Claim").
Buyer and Seller shall jointly control and cooperate in deciding how
to Defend claims in excess of $300,000 and Claims that are High
Impact Claims, at all times taking into consideration the interests
of both Parties.
b. Notice of Seller's Intent to Defend. Notice of Seller's intention to
Defend a Claim shall be delivered by Seller to Buyer within 20 days
from the date of receipt by Seller of notice from Buyer of the
assertion of the Claim.
c. Buyer Contest. If, after Seller has received notice of a Claim,
Seller cannot or does not elect to Defend a Claim, Seller shall be
bound by the result obtained with respect thereto by Buyer (to the
extent it is liable hereunder).
Seller shall not interfere with Buyer's Defense of any Claim that
Seller has refused to Defend.
d. Seller Preference to Settle. In a Claim controlled by Buyer, Seller
may offer to pay the costs of the Defense,settlement and/or
abandonment of the Claim and request that Buyer abandon or settle
the Claim. If Buyer disagrees, Seller shall be liable hereunder only
to the extent of the lesser of:
i. the amount which the third party claimant had agreed to accept
in full and complete payment or compromise as of the xxxx
Xxxxxx made its request to settle to Buyer or
ii. such amount for which Seller may be liable with
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respect to such Claim by reason of the provisions hereof.
e. Cooperation. Buyer agrees to afford Seller and its counsel the
opportunity to be present at, and to participate in, conferences
with all Persons, including governmental authorities, asserting any
Claim against Buyer or conferences with representatives of or
counsel for such Persons.
If requested by Seller, Buyer agrees to cooperate with Seller and
its counsel in contesting any Claim which Seller has the right to
contest or, if appropriate, in making any counterclaim against the
Person asserting the Claim, or any cross-complaint against any
Person, however Seller shall reimburse Buyer for any expenses
incurred by Buyer in so cooperating.
15.3 Payment of Claims. Seller shall pay to Buyer, upon demand, the amount of
any damages to which Buyer may become entitled by reason of the provisions
of this Article 15, together with interest at the rate of nine percent
(9%) per annum on any amounts due to or actually expended by the Buyer
from the earlier of the date said amounts become due or were expended
until payment in full is made by Seller (subtracting therefrom any
interest, for such time period, awarded in an adjudication of the matter).
Such payment shall be made in cash or other immediately available funds at
the address of Buyer specified in this Agreement.
15.4 Procedures for Buyer Indemnities. If Buyer is obligated to indemnify
Seller under this Agreement, the procedures outlined above for Seller as
the indemnifying party shall apply to Buyer and the procedures above
relating to Buyer as indemnified party shall apply to Seller.
ARTICLE 16
TERMINATION
16.1 Termination. This Agreement and the transactions contemplated hereby may
be terminated at any time prior to the Closing:
a. Mutual. By written mutual consent of Seller and Buyer;
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b. Buyer. By Buyer upon the giving of written notice to Seller, if:
i. the Closing has not occurred on or before April 1, 1998,
unless the Closing has not occurred by such date because
clearance of the transaction under the HSR Act has not yet
occurred, in which case such date shall be extended until June
30, 1998; or
ii. Seller has breached this Agreement, or any representation, or
warranty made by Seller is untrue or if any covenant or
condition contained in this Agreement has not been met by
Seller as of the Closing Date (unless any of the above have
been caused by Buyer's actions or inactions), provided Seller
shall have a reasonable opportunity to cure any such default
or untruth.
c. Seller. By Seller upon the giving of written notice to Buyer, if:
i. the Closing has not occurred on or before April 1, 1998,
unless the Closing has not occurred by such date because
clearance of the transaction under the HSR Act has not yet
occurred, in which case such date shall be extended until June
30, 1998; or
ii. Buyer has breached this Agreement, any representation or
warranty made by Buyer is untrue, or if any covenant or
conditions contained in this Agreement has not been met by
Buyer as of the Closing Date, provided Buyer shall have a
reasonable opportunity to cure any such default or untruth
(unless such condition has not been met due to Seller's
actions or inactions).
ARTICLE 17
MISCELLANEOUS PROVISIONS
17.1 Expenses. Each Party will be responsible for its own fees and expenses,
including legal, accounting and other professional fees and expenses,
incurred in connection with
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the asset purchase contemplated in this Agreement.
17.2 Descriptive Headings. The descriptive headings of the several sections of
this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
17.3 Amendments and Waivers. Any term or provision of this Agreement may be
waived without affecting any of the rights, conditions, or limitations
relating to the other terms and conditions of this Agreement at any time
by an instrument in writing signed by the Party which is entitled to the
benefits thereof and this Agreement may be amended or supplemented at any
time by an instrument in writing signed by all Parties hereto.
17.4 Assignment. Neither this Agreement nor any obligation hereunder shall be
assigned or assignable by Buyer or Seller without the prior written
consent of the other Party hereto, provided that at Buyer's option, Buyer
may elect to acquire the Seller's assets through a subsidiary or
affiliated corporation (in which case Buyer shall remain fully liable, as
guarantor, for all obligations of Buyer hereunder and shall execute a
guarantee of such obligations in form and substance reasonable
satisfactory to Seller).
17.5 Binding Effect. The Agreement shall be binding upon and inure to the
benefit of and be enforceable by each of the Parties hereto and their
respective successors and assigns.
17.6 Notices. All notices, consents, requests, instructions, approvals and
other communications provided for herein and all legal process in regard
hereto shall be in writing and sent via facsimile, followed by hard copy
by overnight courier, addressed as follows:
To Buyer: To Seller:
JELD-WEN, inc. Xxxxxx Products Ltd.
Attn: Xxxx Xxxxxxxxxx Attn: Xxxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxx. 000 XxXxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxx 00000 Xxxxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Winthrop, Stimson, Xxxxxx
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& Xxxxxxx
Attn: Xxxxx Xxxxxx
Financial Centre
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx
00000-0000
Fax: (000) 000-0000
17.7 Integration. This Agreement, including the exhibits and schedules hereto
and all documents and papers delivered pursuant hereto and any written
amendments hereof executed by the Parties to this Agreement, constitutes
the entire agreement between the Parties hereto with respect to the
transactions contemplated hereby and supersedes and is in full
substitution for any and all prior agreements and understandings between
any of said Parties relating to such transactions.
17.8 Amendments. This Agreement may be amended only by written agreement
executed by all the Parties hereto.
17.9 Governing Law and Forum. The validity, construction and enforcement of,
and the remedies under this agreement, shall be governed in accordance
with the laws of the State of Wisconsin.
17.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
17.11 Legal Fees. In the event legal action is taken to enforce this Agreement
or any provision thereof, or as a result of any breach of warranty or
representation or other default of either Party, the prevailing Party in
such action shall be entitled to receive its reasonable legal fees, in
addition to all other costs or charges allowed, which shall be fixed by
the court or courts in which the suit or action, including any appeal
thereon, is tried, heard or decided.
17.12 Arbitration. Any controversy or claim arising out or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the rules of the Commercial Arbitration Rules of the
American Arbitration Association and Title 9 of the U.S. Code.
In addition to all other powers, the arbitrator shall have
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the exclusive right to determine all issues of arbitrability and legal
fees. Judgment on any arbitration award may be entered in any court with
jurisdiction.
Any arbitration filed between the parties will be arbitrated in Milwaukee,
Wisconsin or any other location mutually acceptable to the Parties for
such arbitration.
The costs of arbitration, excluding the attorneys' fees, shall be paid
equally between the parties.
17.13 Legal Counsel and Drafting. The parties acknowledge and agree: 1) that
each has been represented by counsel of their own choosing in the
negotiation and preparation of this Agreement; 2) that they have read this
Agreement; 3) that they have had the Agreement fully explained to them by
such counsel; and 4) that they are fully aware of the contents and legal
effect of this Agreement. Furthermore, both parties participated in the
drafting of this Agreement and neither shall be deemed its drafter or
construed as causing any uncertainty or ambiguity as to any of its
provisions.
17.14 Exclusivity of Terms. The rights, remedies and obligations of the Parties
in connection with this Agreement and transactions contemplated hereby
shall be governed exclusively by the terms of this Agreement, except in
the event of fraud and except that nothing herein shall prevent any Party
from seeking to specifically enforce the terms and covenants hereunder.
17.15 Time of Essence. Time is of the essence of this Agreement.
The Parties signing below hereby agree to all of the terms and conditions of
this Agreement.
JELD-WEN, inc. Xxxxxx Products Ltd.
By:___________________________ By:___________________________
Xxxxxxx X. Xxxxxxxxxx, Xxxxx Xxxxxxxxx,
Its Secretary Its President
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EXHIBITS
EXHIBIT A Escrow Agreement
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SCHEDULES
SCHEDULE 1.3 Leased Real Property
SCHEDULE 1.4 Owned Real Property
SCHEDULE 4.2(a) Allocation of Purchase Price
SCHEDULE 4.3 Effective Date Balance Sheet Format
and Exceptions to GAAP
SCHEDULE 5.2(a) Purchase Contracts
SCHEDULE 5.2(b) Sale Contracts
SCHEDULE 5.2(c) Miscellaneous Contracts
SCHEDULE 7.4 Consents and Permits
SCHEDULE 7.5 Litigation
SCHEDULE 7.6 Conflicts
SCHEDULE 7.8 Permitted Encumbrances
SCHEDULE 7.10(a) Vehicular Equipment
SCHEDULE 7.10(b) Exceptions to Roadworthy Condition
SCHEDULE 7.12 Insurance Policies
SCHEDULE 7.14 Environmental Matters
SCHEDULE 7.14(d) Underground Tanks
SCHEDULE 7.15 Intellectual Property
SCHEDULE 7.16 Employees and Labor Relations
Matters
SCHEDULE 7.17 Employee Benefits Plans
SCHEDULE 7.18 Xxxxxx Manufacturing's Contracts
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SCHEDULE 7.19 Financial Statements of Seller
SCHEDULE 7.20 Certain Changes
SCHEDULE 7.21 Asset Listing
SCHEDULE 7.22 Product Warranties and Other
Programs
SCHEDULE 7.23 Full Disclosure
SCHEDULE 7.25 Employee Notification
SCHEDULE 7.26 Knowledge
SCHEDULE 9.10 Conduct Until Closing
SCHEDULE 9.10(b) Key Management Employees
The Company agrees to supplementally furnish the Securities Exchange Commission
(the "Commission") with a copy of any ommitted schedule upon the Commission's
request.
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