Exhibit 10(d)
EXECUTION COPY
ASSET PURCHASE AGREEMENT
between
ARMKEL, LLC
and
XXXXXX-XXXXXXX, INC.
Dated as of May 7, 2001
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
1.2 Interpretation...........................................................15
1.3 Knowledge................................................................15
ARTICLE II
Assets
2.1 Purchased Assets.........................................................15
2.2 Excluded Assets..........................................................18
ARTICLE III
Liabilities
3.1 Assumed Liabilities......................................................19
3.2 Excluded Liabilities.....................................................21
ARTICLE IV
Consideration for Transfer
4.1 Purchase Price...........................................................22
4.2 Allocation of Purchase Price.............................................23
4.3 Domestic Net Working Capital Adjustment..................................23
ARTICLE V
Closing
5.1 Purchase and Sale; Assumption and Acceptance.............................26
5.2 Closing Date.............................................................26
5.3 Delivery and Payment by Buyer............................................26
5.4 Deliveries by the Company................................................27
5.5 Notices of Sale..........................................................28
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ARTICLE VI
Representations and Warranties of the Company
6.1 Organization, Good Standing and Qualification;
Title to Transferred Subsidiaries......................................29
6.2 Corporate Authority; Stockholder Approval................................30
6.3 Governmental Filings; No Violations......................................30
6.4 Business Contracts.......................................................31
6.5 Company Reports; Audited Financial Statements;
Interim Financial Statements...........................................32
6.6 Absence of Certain Changes...............................................34
6.7 Employee Benefits........................................................35
6.8 Litigation and Liabilities...............................................37
6.9 Compliance with Laws; Permits............................................37
6.10 Environmental Matters...................................................38
6.11 Labor Matters...........................................................39
6.12 Insurance...............................................................39
6.13 Title to Tangible Personal Property.....................................39
6.14 Title to Owned and Leased Real Properties;
Absence of Encumbrances...............................................40
6.15 Adequacy and Sufficiency of Purchased Assets............................40
6.16 Intellectual Property...................................................41
6.17 Brokers and Finders.....................................................42
6.18 Taxes...................................................................42
ARTICLE VII
Representations and Warranties of Buyer
7.1 Organization, Good Standing and Qualification............................45
7.2 Corporate Authority......................................................45
7.3 Governmental Filings; No Violations......................................45
7.4 Funds....................................................................46
7.5 Ownership of Shares......................................................47
ARTICLE VIII
Certain Covenants
8.1 Interim Operations.......................................................47
8.2 Access...................................................................52
8.3 Stockholder Approval.....................................................53
8.4 Proxy Statement..........................................................53
8.5 Filings; Other Actions; Notification.....................................54
8.6 Equitable Assignment.....................................................57
8.7 Complete Financial Statements............................................58
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8.8 Intercompany Accounts...................................................60
8.9 Publicity...............................................................61
8.10 No Solicitation and No Hiring...........................................61
8.11 Acquisition Proposals...................................................61
8.12 Timing of Closing.......................................................66
8.13 Insurance...............................................................67
8.14 Sofibel S.A.R.L. Conversion.............................................67
8.15 Xxxxxx-Xxxxxx Taxes.....................................................67
ARTICLE IX
Employees and Benefits
9.1 Employees and Service Crediting.........................................67
9.2 Transitional Employment Matters.........................................77
9.3 Other Employee Matters..................................................77
ARTICLE X
Conditions
10.1 Conditions to Each Party's Obligations..................................78
10.2 Conditions to Obligations of Buyer......................................79
10.3 Conditions to Obligations of the Company................................80
ARTICLE XI
Termination
11.1 Termination by Mutual Consent...........................................81
11.2 Termination by Either Buyer or the Company..............................81
11.3 Termination by the Company..............................................82
11.4 Termination by Buyer....................................................83
11.5 Effect of Termination and Abandonment...................................84
11.6 Return of Information...................................................85
ARTICLE XII
Miscellaneous and General
12.1 Survival................................................................86
12.2 Expenses................................................................86
12.3 Modification or Amendment...............................................87
12.4 Waiver of Conditions....................................................87
12.5 Counterparts............................................................87
12.6 GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL...........................87
12.7 Notices.................................................................88
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12.8 Entire Agreement; NO OTHER REPRESENTATIONS.............................90
12.9 Severability...........................................................91
12.10 Assignment.............................................................91
12.11 No Third-Party Beneficiary Rights......................................92
12.12 Bulk Transfers.........................................................92
12.13 Further Assurances.....................................................92
12.14 Enforcement............................................................92
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of May 7, 2001 (this "Agreement") by
and between Armkel, LLC ("Buyer"), and Xxxxxx-Xxxxxxx, Inc., (the "Company" and,
collectively with Buyer, the "Parties").
RECITALS
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company, CPI Development Corporation, a Delaware corporation
("CPI"), MCC Acquisition Holdings Corporation, a Delaware corporation
("Parent"), MCC Merger Sub Corporation, a Delaware corporation and a wholly
owned subsidiary of Parent ("Company Merger Sub"), and MCC Acquisition Sub
Corporation, a Delaware corporation and a wholly owned subsidiary of Parent
("CPI Merger Sub"), have executed and delivered an Agreement and Plan of Merger,
dated as of May 7, 2001 (including the exhibits, schedules and annexes thereto,
and as it and they may hereafter be modified or amended in accordance with
Section 8.12(b), the "Merger Agreement"), providing for, among other things, the
merger of CPI Merger Sub with and into CPI (the "CPI Merger") and the merger of
Company Merger Sub with and into the Company (the "Company Merger" and,
collectively with the CPI Merger, the "Mergers"); and
WHEREAS, the Company and its Subsidiaries (as hereinafter defined) are
engaged in the formulation, development, manufacture, sale and distribution of
certain consumer and personal care products, including anti-perspirants and
deodorants, condoms, at-home pregnancy and ovulation test kits, depilatories,
tooth whitening and similar oral hygiene products, skin care products, non-
prescription medication and various pet products and the business and operations
associated with the Segregated Assets and Liabilities, as hereinafter defined
(all such businesses and operations, collectively with the predecessor
operations and discontinued operations of such businesses and operations, the
"Business"); and
WHEREAS,(i) the Company and its Subsidiaries desire to sell, transfer
and assign to Buyer, and Buyer desires to purchase from the Company and its
Subsidiaries, in each case immediately prior to the effective time of the CPI
Merger, the Purchased Assets (as hereinafter defined),
and (ii) the Company and its Subsidiaries desire to assign and transfer to
Buyer, and Buyer desires to accept and assume, in each case immediately prior to
the effective time of the CPI Merger, the Assumed Liabilities (as hereinafter
defined), all on the terms and subject to the conditions set forth in this
Agreement (such sales, transfers, assignments, purchases, acceptances and
assumptions collectively, the "Purchase"); and
WHEREAS, the Board of Directors of the Company has by resolution
approved a memorandum of understanding (the "Memorandum of Understanding") with
CPI, Parent, Company Merger Sub, CPI Merger Sub and Buyer with respect to and
substantially consistent with the Purchase, the Mergers and the other
transactions contemplated by this Agreement and the Merger Agreement; and
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, CPI, Parent and Buyer are executing and delivering a Voting Agreement
providing for certain matters relating to the Purchase (the "Voting Agreement")
and certain stockholders of CPI, Parent and Buyer are executing and delivering a
Voting Agreement providing for certain matters relating to the Purchase; and
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Church & Xxxxxx Co., Inc. ("Strategic Buyer") and Buyer are executing
and delivering a Product Line Purchase Agreement (the "Product Line Purchase
Agreement") providing for certain matters relating to the Purchase.
NOW, THEREFORE, in consideration of the premises, and the
representations, warranties, covenants and agreements contained in this
Agreement, the Parties agree as follows:
ARTICLE I
Definitions
1.1 General Terms. For purposes of this Agreement, the following terms
have the meanings hereinafter indicated:
"Acquisition Proposal" has the meaning specified in Section 8.11.
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"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person as of the time of determination.
"Agreement" has the meaning specified in the Preamble.
"Ancillary Agreements" means the Xxxx of Sale, the Company Name
Trademark License Agreement, the Cranbury Lease, the Decatur Manufacturing
Agreement, the Indemnification Agreement, the Insurance Claims Agreement, the
Patent License Agreement and the Transition Services Agreement.
"Arrangements" has the meaning specified in Section 7.4.
"Assumed Liabilities" has the meaning specified in Section 3.1.
"Assumed Pension Plan" has the meaning specified in Section 6.7(c).
"Audit Date" has the meaning specified in Section 6.5(a).
"Audited Financial Statements" means, collectively, the audited
combined balance sheet as of March 31, 2000, and the audited combined statement
of earnings as of March 31, 1999 and 2000 of the Purchased Assets and the
Assumed Liabilities (excluding the Segregated Assets and Liabilities), in each
case including the notes thereto, all included in Section 1.1(a) of the
Disclosure Letter.
"Available Employee" means each current Employee as of the date of this
Agreement, plus those added in accordance with Section 9.1(b), but excluding (i)
such Employees who retire (under the terms of the applicable qualified defined
benefit pension plan) or die prior to the Closing Date, (ii) the Employees of
the Transferred Subsidiaries and (iii) the Transition Employees listed on
Section 6.7(b)(2) of the Disclosure Letter.
"Bankruptcy and Equity Exception" has the meaning specified in Section
6.2.
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"Base Net Working Capital" has the meaning specified in Section 4.3(a).
"Xxxx of Sale" means the Xxxx of Sale and Assignment and Assumption
Agreement in the form attached hereto as Exhibit A.
"Business" has the meaning specified in the Recitals.
"Business Acquisition Proposal" has the meaning specified in Section
8.11(a).
"Business Contracts" has the meaning specified in Section 6.4.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which commercial banks in The City of New York are authorized or obligated by
any Law or executive order to close.
"Business Patents" means the patents described on Section 1.1(b) of the
Disclosure Letter.
"Business-Related Intellectual Property" means, collectively, (i) the
Business Patents, (ii) the Business Trademarks and (iii) all other Intellectual
Property (other than any Patents and Trademarks and Excluded Assets) in which
the Company or its Subsidiaries has any right, title or interest in or to, and
that relate primarily to the Business, including in all such cases any goodwill
associated therewith, licenses and sublicenses granted and obtained with respect
thereto, and rights thereunder, remedies against infringements thereof, and
rights to protection of interests therein under any Law.
"Business Trademarks" means the trademarks described on Section 1.1(c)
of the Disclosure Letter.
"Buyer" has the meaning specified in the Preamble.
"Buyer Savings Plan" has the meaning specified in Section 9.1(h)(i).
"Xxxxxx-Xxxxxx Retained Cash Amount" has the meaning specified in
Section 2.1(m).
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"Claims" has the meaning specified in Section 6.8.
"Closing" means the completion of the Purchase and the payment of the
Purchase Price.
"Closing Agreement" has the meaning specified in Section 8.12(a).
"Closing Date" has the meaning specified in Section 5.2.
"COBRA" means Section 4980B of the Code and Title 6 of ERISA.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning specified in the Preamble.
"Company Acquisition Proposal" has the meaning specified in Section
8.11(a).
"Company Merger" has the meaning specified in the Recitals.
"Company Merger Certificate" has the meaning specified in Section 1.5
of the Merger Agreement.
"Company Merger Sub" has the meaning specified in the Recitals.
"Company Name Trademark License Agreement" means the Consumer Products
Transitional Trademark License Agreement in the form attached hereto as Exhibit
B.
"Company Reports" has the meaning specified in Section 6.5(a).
"Company Requisite Vote" has the meaning specified in Section 6.2.
"Company Savings Plan" has the meaning specified in Section 9.1(h)(ii).
"Company Shares" means, collectively, the outstanding shares of Common
Stock, par value $1.00 per
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share, of the Company and the outstanding shares of Class B Common Stock, par
value $1.00 per share, of the Company.
"Compensation and Benefit Plans" means bonus, deferred compensation,
pension, retirement, profit-sharing, thrift, savings, employee stock ownership,
stock bonus, stock purchase, deferred and restricted stock, stock option,
employment, termination, severance, compensation, life insurance, medical,
health or other employee plans, agreements, policies or arrangements that cover
United States-based Employees and current or former directors of the Company.
"Confidentiality Agreements" means, collectively, the Confidentiality
Agreement, dated July 6, 2000, between Strategic Buyer and X.X. Xxxxxx
Securities Inc., as agent on behalf of the Company and the Confidentiality
Agreement, dated August 7, 2000, between Xxxxx & Company LP and X.X. Xxxxxx
Securities Inc., as agent on behalf of the Company.
"Contracts" has the meaning specified in Section 2.1(h).
"Control", when used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through ownership of voting
securities, by contract or otherwise, and the terms "controlling", "controlled
by" and "under common control with" have correlative meanings.
"Covered Retiree" has the meaning specified in Section 3.1(g).
"CPI" has the meaning specified in the Recitals.
"CPI Merger" has the meaning specified in the Recitals.
"CPI Merger Sub" has the meaning specified in the Recitals.
"Cranbury Lease" means the Cranbury Facilities Sharing Agreement and
Lease in the form attached hereto as Exhibit C.
"CSA" has the meaning specified in Section 6.9(b).
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"Decatur Manufacturing Agreement" means the Decatur Manufacturing
Agreement in the form attached hereto as Exhibit D.
"Delayed Consents" has the meaning specified in Section 8.6.
"Disclosure Letter" means that certain disclosure letter which was
delivered to Buyer by the Company on or prior to entering into this Agreement
and which states that it is the disclosure letter referred to in this Agreement.
"Employees" means the Company's and its Subsidiaries' current or former
employees who are or were primarily employed in the Business.
"Encumbrance" means any lien, charge, mortgage, pledge, security
interest, restriction on transfer or encumbrance of any sort.
"Environmental Law" means any applicable Law, including common law,
governing (i) the protection of human health (as it relates to Hazardous
Substances) or the environment, (including air, water, soil and natural
resources) or (ii) the treatment, use, storage, handling, release or disposal of
Hazardous Substances, or (iii) the exposure of Persons to Hazardous Substances,
in each case as presently in effect.
"Equity Arrangements" has the meaning specified in Section 7.4.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" of any Person means any other Person which, together
with such Person, would be treated as a single employer under Section 4001 of
ERISA or Section 414 of the Code.
"Estimated Closing Debt" has the meaning specified in Section 4.1(b).
"Exchange Act" has the meaning specified in Section 6.3(a).
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"Excluded Assets" has the meaning specified in Section 2.2.
"Excluded Liabilities" has the meaning specified in Section 3.2.
"FDCA" has the meaning specified in Section 6.9(b).
"Final Determination Date" has the meaning specified in Section 4.3(c).
"Financing Arrangements" has the meaning specified in Section 7.4.
"FIRPTA Certificate" has the meaning specified in Section 5.4(f).
"Fund Agreement" shall mean the fund agreement referred to in the
Shareholder Indemnification Agreement.
"GAAP" has the meaning specified in Section 6.5(a).
"Government Antitrust Entity" means any Governmental Entity with
jurisdiction over enforcement of any applicable antitrust laws.
"Governmental Entity" means any federal, state, local or foreign
governmental or regulatory authority, agency, commission, body or other
governmental entity.
"Hazardous Substance" means any substance presently listed, defined,
designated or classified as hazardous, toxic or radioactive under any applicable
Environmental Law, or the presence of which poses a hazard to the health or
safety of Persons, including petroleum and any derivatives or by-products
thereof.
"Healthcare Acquisition Proposal" has the meaning specified in Section
8.11.
"Healthcare Business" has the meaning specified in Section 8.11.
"HSR Act" has the meaning specified in Section 6.3(a).
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"Indemnification Agreement" means the Indemnification Agreement in the
form attached hereto as Exhibit E.
"Independent Accounting Firm" has the meaning specified in Section
4.3(c).
"Infringement" has the meaning specified in Section 3.1(c).
"Injunctive Action" has the meaning specified in Section 10.2(d).
"Insurance Claims Agreement" means the Insurance Claims Agreement in
the form attached hereto as Exhibit F.
"Intellectual Property" means, collectively, all patents, trademarks,
trade names, service marks, copyrights, and any applications therefor,
technology, domain names, know-how, computer software programs or applications,
and tangible or intangible proprietary information or materials.
"Interim Financial Statements" means, collectively, the unaudited
combined balance sheet as of December 31, 2000 and the unaudited combined
statement of earnings of the Purchased Assets and the Assumed Liabilities
(excluding the Segregated Assets and Liabilities) as of the nine months ended
December 31, 2000, in each case including any notes thereto, all included in
Section 1.1(d) of the Disclosure Letter.
"International Compensation and Benefit Plans" means bonus, deferred
compensation, pension, retirement, profit-sharing, thrift, savings, employee
stock ownership, stock bonus, stock purchase, restricted stock, stock option,
employment, termination, severance, compensation, life insurance, medical,
health or other employee plans, agreements, policies or arrangements that are
maintained by or contributed to by the Transferred Subsidiaries and/or their
subsidiaries or that otherwise cover non-U.S. based employees.
"IRS" has the meaning specified in Section 6.7(c).
"Laws" has the meaning specified in Section 6.9.
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"Leased Real Property" means real property which is leased by a third
party to the Company or its Subsidiaries and set forth on Section 6.14 of the
Disclosure Letter.
"Leased Tangible Personal Property" means the Tangible Personal
Property which is leased by a third party to the Company or its Subsidiaries.
"Leave Recipients" has the meaning specified in Section 9.1(c).
"Liabilities" means all liabilities, obligations, guarantees, damages,
losses, debts, Claims, demands, judgments, fines, penalties or settlements of
any nature or kind, including indebtedness, whether known or unknown, fixed,
accrued, absolute or contingent, liquidated or unliquidated, matured or
unmatured, past, present or future, whether incurred prior to, at or after the
Closing, including all costs and expenses (legal, accounting or otherwise)
relating thereto.
"Material Adverse Effect" means a material adverse effect on the
financial condition, business, assets or results of operations of the Business,
taken as a whole; provided, however, that any such effect resulting from any
change in economic or business conditions generally or in the consumer and
personal care products industry specifically shall not be considered when
determining whether a Material Adverse Effect has occurred.
"May Deliverables" has the meaning specified in Section 8.7(a).
"Memorandum of Understanding" has the meaning specified in the
Recitals.
"Merger Agreement" has the meaning specified in the Recitals.
"Mergers" has the meaning specified in the Recitals.
"Net Working Capital" has the meaning specified in Section 4.3(b).
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"Non-Subsidiary Agreements" means the documents specified in Section
6.1 of the Disclosure Letter.
"Notice of Disagreement" has the meaning specified in Section 4.3(c).
"Obligations" has the meaning specified in Section 6.8.
"Order" has the meaning specified in Section 10.1(c).
"Owned Real Property" means real property which is owned by the Company
or its Subsidiaries and set forth on Section 6.14 of the Disclosure Letter.
"Owned Tangible Personal Property" means Tangible Personal Property
which is owned by the Company or any of its Subsidiaries.
"Parent" has the meaning set forth in the Recitals.
"Parties" has the meaning specified in the Preamble.
"Patent License Agreement" means the Company Patent License Agreement
in the form attached hereto as Exhibit G.
"Patents" means, collectively, patents, patent applications, and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof.
"Permits" means all permits, filings, franchises, certificates,
licenses, notices, orders, variances, consents, registrations, approvals,
authorizations and similar rights.
"Permitted Encumbrances" means, collectively, those Encumbrances
specified in Section 1.1(e) of the Disclosure Letter; liens for current taxes or
assessments not delinquent; builders', mechanics', warehousemen's, workmen's,
repairmen's, carriers' liens, purchase money security interests and similar
charges and any other similar Encumbrances arising and continuing in the
ordinary course
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of business, in any case for obligations which are not delinquent; other similar
common law or statutory Encumbrances which do not materially detract from the
value of the property subject thereto or materially interfere with the present
use thereof; Encumbrances reflected, reserved or otherwise specifically
disclosed in the Audited Financial Statements or in the Interim Financial
Statements; Encumbrances arising from claims being contested in good faith that,
alone or in the aggregate, do not materially detract from the value of the
Purchased Assets subject thereto or materially interfere with the present use
thereof.
"Person" means any individual, firm, partnership, association, group
(as such term is used in Rule 13d-5 under the Exchange Act, as such Rule is in
effect on the date of this Agreement), corporation or other entity.
"Product Line Purchase Agreement" has the meaning specified in the
Recitals.
"Proxy Statement" has the meaning specified in Section 8.4.
"Purchase" has the meaning specified in the Recitals.
"Purchase Price" has the meaning specified in Section 4.1.
"Purchase Price Adjustment" has the meaning specified in Section
4.3(d).
"Purchased Assets" has the meaning specified in Section 2.1.
"Real Property" has the meaning specified in Section 2.1(b).
"Recapitalization Amendment" has the meaning specified in the recitals
to the Merger Agreement.
"Representatives" has the meaning specified in Section 8.2.
"Section 8.11(c) Notice" has the meaning specified in Section 8.11(c).
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"SEC" has the meaning specified in Section 6.5(a).
"Segregated Assets and Liabilities" means the assets and Liabilities
specified in Section 2.1(a)(ii) of the Disclosure Letter.
"Shareholder Indemnification Agreement" means that certain
Indemnification Agreement dated as of the date hereof, by and among certain
stockholders of CPI and Parent.
"Specified Provision" has the meaning specified in Section 12.2(d).
"Statement of Net Working Capital" has the meaning specified in Section
4.3(b).
"Steering Committee" has the meaning specified in Section 8.2(b).
"Strategic Buyer" has the meaning specified in the Recitals.
"Subsidiary" means, as the case may be, any entity, whether
incorporated or unincorporated, of which at least a majority of the securities
or ownership interests having by their terms ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
is directly or indirectly owned or controlled by such party or by one or more of
its respective Subsidiaries or by such party and any one or more of its
respective Subsidiaries.
"Substitute Merger Agreement" has the meaning specified in Section
8.11(c).
"Substitute Merger Parties" has the meaning specified in Section
8.11(c).
"Superior Proposal" has the meaning specified in Section 8.11.
"Tangible Personal Property" has the meaning specified in Section
2.1(c).
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"Tax Authority" has the meaning specified in Section 6.18.
"Tax Return" has the meaning specified in Section 6.18.
"Tax", "Taxes" and "Taxable" have the meaning specified in Section
6.18.
"Termination Date" has the meaning specified in Section 11.2.
"Third Party Intellectual Property Rights" means licenses, sublicenses
and other agreements as to which the Company or any of its Subsidiaries is a
party and pursuant to which it is authorized to use any third-party patents,
trademarks, servicemarks, copyrights, trade secrets or computer software, which
rights relate primarily to the Business.
"Title IV Plan" has the meaning specified in Section 6.7(e).
"Trademarks" means, collectively, trademarks, service marks, trade
dress, logos, trade names, and corporate names, together with all translations,
adaptations, derivations, and combinations thereof and including all goodwill
associated therewith, and all applications, registrations, and renewals in
connection therewith.
"Transactions" means the Purchase and the other transactions
contemplated by this Agreement and the Ancillary Agreements.
"Transferred Employee" has the meaning specified in Section 9.1(a).
"Transferred Subsidiaries" has the meaning specified in Section 2.1(a).
"Transition Employee" means a current Employee who is not an Available
Employee and is designated as a Transition Employee on Section 6.7(b)(2) of the
Disclosure Letter.
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"Transition Services Agreement" means, the Transition Services
Agreement in the form attached hereto as Exhibit H.
"Voting Agreement" has the meaning specified in the Recitals.
"Voting Debt" has the meaning specified in Section 6.1(b).
"WARN Act" has the meaning specified in Section 9.1(k).
"Working Papers" has the meaning specified in Section 4.3(c).
1.2 Interpretation. The words "hereof," "herein," and "hereunder" and
words of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
Terms defined in the singular shall have correlative meanings when used in the
plural, and vice versa. The table of contents and headings herein are for
convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
Where a reference in this Agreement is made to a Section or Exhibit, such
reference shall be to a Section of or Exhibit to this Agreement unless otherwise
indicated. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
1.3 Knowledge. References herein to the "Company's knowledge" or the
"knowledge of the Company" refer to the actual knowledge of the officers of the
Company and the employees of the Business specified in Section 1.3 of the
Disclosure Letter.
ARTICLE II
Assets
2.1 Purchased Assets. Subject to Section 2.2, the "Purchased Assets"
shall consist of all of the Company's and each of its Subsidiaries' entire
right, title and interest in and to the following, wherever located:
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(a) all of the outstanding shares of capital stock or other equity
interests of the Subsidiaries of the Company set forth in Section 2.1(a)(i) of
the Disclosure Letter (collectively with the direct or indirect Subsidiaries of
such Subsidiaries, the "Transferred Subsidiaries");
(b) all Owned Real Property and all rights of the Company in respect of
the Leased Real Property (including subleaseholds) described in Section 6.14 of
the Disclosure Letter and all improvements, fixtures, and fittings thereon, and
easements, rights-of-way, and other appurtenants thereto (such as appurtenant
rights in and to public streets) (collectively, the "Real Property");
(c) all tangible personal property, including machinery, equipment,
furniture, vehicles, trailers, tools, instruments, spare parts, inventories
(including, without limitation, raw materials, purchased goods, goods and work
in process, supplies (including storeroom supplies) and finished goods),
pallets, office and laboratory equipment, materials, fuel and other similar
personal property not normally included in inventory, that relates primarily to
the Business or is otherwise included in the Purchased Assets (collectively, the
"Tangible Personal Property");
(d) all warranties and all claims in respect of deposits, prepayments
and refunds and rights of set off against third parties that relate primarily to
the Business;
(e) any and all rights of an insured party in respect of insurance
claims to the extent related to the Business or to the Purchased Assets, all to
the extent provided in the Insurance Claims Agreement;
(f) all Permits, Orders and similar rights obtained from Governmental
Entities, that relate primarily to the Business, the Owned Real Property, the
Leased Real Property or are otherwise included in the Purchased Assets, but only
to the extent transferable by their terms;
(g) copies of all books, records, ledgers, files, documents,
correspondence, customer files, supplier lists, parts lists, vendor lists,
lists, plats, architectural plans, drawings and specifications, creative
materials, advertising and promotional materials, studies, reports, and other
similar printed or written commercial materials, that
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relate primarily to the Business, the Owned Real Property, the Leased Real
Property or are otherwise included in the Purchased Assets or that are owned by
the Transferred Subsidiaries;
(h) all agreements, contracts, leases, subleases, indentures, mortgage
documents and commitments, instruments, documents and commitments creating
security interests, guarantees, customer orders, purchase orders, dealer and
distributorship agreements, supply agreements, licenses, sublicenses, joint
venture agreements, partnership agreements and other similar arrangements and
commitments and rights thereunder, that relate primarily to the Business or to
the Purchased Assets (collectively, but excluding this Agreement and the
Ancillary Agreements, "Contracts"), including, without limitation, those
Contracts set forth in Section 6.4 of the Disclosure Letter, the Consultancy
Agreements and Collective Bargaining Agreements listed in Section 6.7(a) of the
Disclosure Letter and any agreement to which an Available Employee is a party;
(i) all accounts and notes receivable arising in respect of the
operation of the Business;
(j) the Business-Related Intellectual Property;
(k) the tangible or physical materials embodying all computer software,
product literature and advertising material, specifications, credit information,
inventory, marketing, personnel, financial, title and other documents, data and
similar information and material, however stored, that relate primarily to the
Business or to the Purchased Assets;
(l) the cash, cash equivalents and short term investments held by the
Transferred Subsidiaries (other than Xxxxxx-Xxxxxx Inc.) as of the Closing Date;
(m) $1,000,000 in aggregate value of cash, cash equivalents and short
term investments held by Xxxxxx-Xxxxxx Inc. (the "Xxxxxx-Xxxxxx Retained Cash
Amount");
(n) the assets in respect of the Assumed Pension Plan and the life
insurance policies underlying the Split Dollar Agreements listed on Section
6.7(a) of the Disclosure Letter and the assets, if any, transferred in
accordance with Section 9.1(h); and
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(o) all other assets of the Company or any of its Subsidiaries that
relate primarily to the Business or to the Purchased Assets.
2.2 Excluded Assets. The Purchased Assets shall not include any assets
other than the assets specifically listed or described in Section 2.1 and,
without limiting the generality of the foregoing, shall expressly exclude the
following assets (collectively, the "Excluded Assets"), which shall not be sold
or transferred to Buyer:
(a) any shares of capital stock or other equity interests of the
Company or its Subsidiaries other than of the Transferred Subsidiaries;
(b) the Company's and its Subsidiaries' qualifications to conduct
business as a foreign corporation, arrangements with registered agents relating
to foreign qualifications, taxpayer and other identification numbers, seals,
minute books, stock transfer books and other documents relating to the
organization, maintenance and existence of the Company as a corporation, in each
such case other than such as relate exclusively to the Transferred Subsidiaries;
(c) insurance policies of the Company and its Subsidiaries, other than
those held by the Transferred Subsidiaries, all to the extent provided in the
Insurance Claims Agreement;
(d) all tax returns and tax books and tax records of the Company and
its Subsidiaries, other than those of the Transferred Subsidiaries;
(e) any and all rights in and to the Intellectual Property owned or
used by the Company or its Subsidiaries which is either referred to in Section
2.2(e) of the Disclosure Letter or does not constitute Business-Related
Intellectual Property, except as licensed to Buyer or its Affiliates under the
Ancillary Agreements;
(f) any assets relating to Compensation and Benefit Plans, except as
set forth in Section 9.1(g) and 9.1(h);
(g) the Company's rights under this Agreement and the Ancillary
Agreements;
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(h) any cash, cash equivalents and short term investments (i) held by
the Company or its Subsidiaries other than the Transferred Subsidiaries (other
than Xxxxxx-Xxxxxx Inc.), and (ii) held by Xxxxxx-Xxxxxx Inc. in excess of the
Xxxxxx-Xxxxxx Retained Cash Amount; and
(i) the assets referred to in Section 2.2(i) of the Disclosure Letter.
ARTICLE III
Liabilities
3.1 Assumed Liabilities. Except as otherwise specifically set forth in
Section 3.2, Buyer shall assume (i) all Liabilities of the Company or any of its
Subsidiaries that primarily arise or have arisen out of, in respect of or as the
result of the ownership, operation or transfer of the Purchased Assets or the
Business (together with those covered by Sections 3.1(a) through (j) below, the
"Assumed Liabilities") and (ii) without limiting the generality of clause (i) of
this sentence, the following Liabilities:
(a) the Liabilities set forth in Section 3.1(a) of the Disclosure
Letter;
(b) except for any Liabilities expressly retained by the Company or its
Subsidiaries under Article IX, the Liabilities of the Company or its
Subsidiaries that primarily arise or have arisen out of, in respect of or as the
result of any Contracts constituting Purchased Assets;
(c) the Liabilities of the Company or its Subsidiaries for any
infringement, impairment, dilution, misappropriation or other violation or
misuse ("Infringement") or alleged Infringement of the rights of any other
Person relating to Intellectual Property that primarily arise or have arisen out
of, in respect of or as the result of the ownership, operation or transfer of
the Purchased Assets or the Business;
(d) the Liabilities of the Company or its Subsidiaries in respect of
products manufactured, marketed, distributed or sold by or as part of the
operation of the Business prior to the Closing Date, including product liability
and negligence claims and other Liabilities for
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refunds, adjustments, allowances, repairs, exchanges, returns and warranty,
merchantability and other claims;
(e) all Liabilities of the Company or its Subsidiaries under or
relating to Environmental Law or Hazardous Substances, to the extent any such
Liabilities arise or have arisen out of, in respect of or as the result of the
ownership, operation or transfer of the Owned Real Property, which Liabilities
include, but are not limited to, Liabilities in respect of any obligations under
the New Jersey Industrial Site Recovery Act in relation to the Owned Real
Property located in Cranbury, New Jersey and those matters specified in Section
3.1(e) of the Disclosure Letter;
(f) all transfer taxes, conveyance taxes and sales taxes incurred by
the Company or Buyer in connection with the Transactions (excluding any such
taxes incurred in connection with the transactions effected pursuant to the
Merger Agreement or taxes that are in the nature of a tax on income or gain of
the Company);
(g) except for any Liabilities expressly retained by the Company or its
Subsidiaries under Article IX of this Agreement, all Liabilities to the extent
that such Liabilities arise or have arisen out of, in respect of or as a result
of the employment (or termination of employment) of any Employees and all
obligations under the Compensation and Benefit Plans and the International
Compensation and Benefit Plans, regardless of whether such plans are actually
assumed or adopted by Buyer to the extent related to any Available Employees,
any employees of the Transferred Subsidiaries and, to the extent provided in
Section 9.2, any Transition Employees and 60% of any retiree medical liabilities
incurred with respect to any Employee who was an Available Employee before
termination of employment and who terminates employment with the Company from
the date hereof through and including the Closing Date under circumstances which
entitle such Employee to retiree medical coverage under any plan, policy or
arrangement of the Company or its Affiliates (a "Covered Retiree"); provided
that it is expressly agreed that Buyer shall have no obligation to assume or
adopt any Compensation and Benefit Plan other than the Assumed Pension Plan and,
to the extent they cover Available Employees and employees of the Transferred
Subsidiaries, the Split Dollar Agreements, Corporate Officer Medical Expense
Reimbursement Plan, Personal Financial Counseling Policy, Executive Employment
Agreements, Change in Control Agreements and
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Consulting Agreements listed in Section 6.7(a) of the Disclosure Letter and the
International Compensation and Benefit Plans.
(h) the Liabilities of Buyer under the arrangements contemplated by
Section 8.6;
(i) the Liabilities of the Company or the Transferred Subsidiaries that
arise or have arisen out of, in respect of or as the result of the Contracts set
forth in Section 6.5(c) of the Disclosure Letter; and
(j) all Liabilities of the Company or its Subsidiaries relating to any
third party Claims primarily arising out of, or as the result of, the ownership,
operation or transfer of the Purchased Assets or the Business.
3.2 Excluded Liabilities. Section 3.1 notwithstanding, Buyer shall not
be responsible for or assume any Liabilities of the Company or any of its
Affiliates (i) that are not Assumed Liabilities or (ii) that primarily arise or
have arisen out of, in respect of or as the result of the ownership, operation
or transfer of the Excluded Assets (collectively, the "Excluded Liabilities"),
including the following Liabilities:
(a) any Liabilities under or relating to Environmental Law or Hazardous
Substances that (i) do not primarily arise and have not arisen out of, in
respect of or as the result of the ownership, operation or transfer of the
Purchased Assets or the Business or (ii) primarily arise or have arisen out of,
in respect of or as the result of the ownership, operation (including cessation
of operations) or transfer of the Excluded Assets;
(b) any Liabilities for costs and expenses incurred in connection with
this Agreement and the Transactions, other than as expressly set forth in the
Indemnification Agreement;
(c) any Liabilities of the Company or its Subsidiaries for any
Infringement or alleged Infringement by the Company or its Affiliates of the
rights of any other Person relating to Intellectual Property that primarily
arise or have arisen out of, in respect of or as the result
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of the ownership, operation or transfer of the Excluded Assets;
(d) any Liability to any broker, finder or agent for any brokerage
fees, finder's fees or commissions with respect to the Transactions;
(e) all Liabilities under the Compensation and Benefit Plans or
otherwise relating to employment that are expressly retained by the Company
under Article IX;
(f) any Liabilities of the Company or its Subsidiaries under this
Agreement or under the Ancillary Agreements;
(g) any Liabilities referred to in Section 3.2(g) of the Disclosure
Letter;
(h) any Liabilities (including any Taxes) that primarily relate to or
arise from the ownership, operation or transfer of the Excluded Assets;
(i) any Taxes relating to or arising in connection with any transaction
contemplated by the Merger Agreement; and
(j) any liability imposed on Xxxxxx-Xxxxxx for Taxes required to be
withheld, deducted or otherwise collected with respect to any distribution or
other payment made with respect to shares of Xxxxxx-Xxxxxx Inc. stock, less any
amount actually withheld, deducted or otherwise collected on or prior to the
Closing Date.
ARTICLE IV
Consideration for Transfer
4.1 Purchase Price. (a) The Purchase Price for the Business (the
"Purchase Price") shall be the sum of $739 million, minus the Estimated Closing
Debt.
(b) On or prior to the third Business Day prior to the Closing Date,
the Company shall deliver to Buyer a certificate of the Chief Financial Officer
of the Company setting forth the amount of Estimated Closing Debt and including
reasonable documentation with respect thereto. "Estimated Closing Debt" means
the aggregate principal
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amount of indebtedness for money borrowed of the Transferred Subsidiaries as of
the Closing, plus the accrued but unpaid interest thereon as of the Closing, as
estimated by the Company in good faith.
4.2 Allocation of Purchase Price. For tax purposes, including without
limitation the filing of IRS Form 8594, the parties agree that they will report
an allocation of the Purchase Price for the Business plus the Assumed
Liabilities, as the Company shall determine in its reasonable discretion giving
due regard to reasonable objections by the Buyer, provided that Buyer shall have
the opportunity to participate in the allocation of a portion of the Purchase
Price to the Arrid, Lady's Choice and Xxxxxxx Xxx assets that constitute
Purchased Assets (and the related liabilities) and such allocation shall be in a
manner consistent with the summary allocation schedule provided in Section 4.2
of the Disclosure Letter. The allocation to be made pursuant to this Section 4.2
shall be consistent with the summary allocation schedule provided in Section 4.2
of the Disclosure Letter, unless otherwise required by any federal, state, local
or foreign taxing authority.
4.3 Domestic Net Working Capital Adjustment. Following the Closing, the
Purchase Price shall be adjusted on the terms and conditions and for the amounts
set forth below with respect to the Base Net Working Capital.
(a) "Base Net Working Capital" shall be the average of the Net Working
Capital (excluding intercompany accounts payable and intercompany accounts
receivable) calculated on the last day of each month for the most recent 12
months ended immediately prior to the Closing Date prepared by the Company and
determined in accordance with U.S. GAAP with methodologies consistently applied
to those used in preparing the Financial Statements in Section 8.7(a)(ii).
Within 30 days after the date hereof, the Company shall deliver to Buyer an
illustrative determination of Base Net Working Capital for the 12-month period
ending April 30, 2001, including the components thereof. The Company shall also
deliver to Buyer such an illustrative determination 30 days following each
month-end between the date hereof and the Closing Date for the 12-month period
ending on the last day of such completed month.
(b) Within 60 days after the Closing Date, Buyer shall prepare and
deliver to the Company a statement setting
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forth each of the components of Net Working Capital as of the close of business
on the Closing Date (the "Statement of Net Working Capital") and that such
Statement of Net Working Capital has been prepared in accordance with the
requirements of this Section 4.3. As used herein, the term "Net Working Capital"
consists of the following items relating to the Business and included in the
Purchased Assets: (i) net accounts receivable (excluding intercompany accounts
receivable); plus (ii) net inventory; plus (iii) other current assets; minus
(iv) accounts payable (excluding intercompany accounts payable); minus (v)
accrued expenses; provided that the items described in clauses (i) through (v)
above shall be determined in accordance with U.S. GAAP with methodologies
consistently applied to that used in calculating Base Net Working Capital, and,
for purposes of the Statement of Net Working Capital, in each case shall be
determined as of the close of business on the Closing Date.
(c) During the 45 days immediately following the receipt of the
Statement of Net Working Capital by the Company, the Company and its accountants
shall, at the Company's expense, be entitled to review the Statement of Net
Working Capital (including the determination of Base Net Working Capital) and
any working papers, trial balances and similar materials (collectively, "Working
Papers") relating to the Statement of Net Working Capital prepared by Buyer. The
Statement of Net Working Capital shall become final and binding upon the parties
on the 46th day following delivery thereof unless the Company gives written
notice to Buyer of its disagreement with the Statement of Net Working Capital (a
"Notice of Disagreement") prior to such date. Any Notice of Disagreement shall
specify in reasonable detail the nature of any disagreement so asserted. If a
timely Notice of Disagreement is delivered by the Company, then the Statement of
Net Working Capital (as revised, if at all, in accordance with this Section 4.3)
shall become final and binding upon the parties on the earlier of (i) the date
the parties hereto resolve in writing all differences they have with respect to
any matter specified in the Notice of Disagreement or (ii) the date all matters
in dispute are finally resolved by the Independent Accounting Firm (as defined
below) (the date on which the Statement of Net Working Capital so becomes final
and binding hereafter referred to as the "Final Determination Date"). During the
30 days immediately following the delivery of any Notice of Disagreement, Buyer
and the Company shall seek in good faith to resolve in writing any differences
which they may have
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with respect to any matters specified in such Notice of Disagreement. During
such period, Buyer and the Company shall have access to the other's Working
Papers prepared in connection with such party's preparation of the Statement of
Net Working Capital and the Notice of Disagreement, as the case may be. At the
end of such 30 day period, Buyer and the Company shall submit the matter to an
independent, national public accounting firm which has no prior relationship
with Buyer or the Company (the "Independent Accounting Firm") for review and
resolution of any and all matters which remain in dispute and which are included
in the Notice of Disagreement. The Independent Accounting Firm shall reach a
final resolution of all matters and shall furnish such resolution in writing to
Buyer and the Company as soon as practicable after such matters have been
referred to the Independent Accounting Firm. Such resolution shall be made in
accordance with this Agreement and will be conclusive and binding upon Buyer and
the Company. The cost of such resolution shall be allocated and paid 50% by
Buyer and 50% by the Company.
(d) Upon final determination of the Net Working Capital in accordance
with this Section 4.3, a purchase price adjustment will be paid in accordance
with Section 4.3(e) (the "Purchase Price Adjustment").
(e) If Net Working Capital based upon the Statement of Net Working
Capital is greater than the Base Net Working Capital, then Buyer shall pay to
the Company the amount by which Net Working Capital based on the Statement of
Net Working Capital exceeds Base Net Working Capital; or if Net Working Capital
based on the Statement of Net Working Capital is less than Base Net Working
Capital, then the Company shall pay to Buyer the amount by which the Base Net
Working Capital exceeds Net Working Capital based on the Statement of Net
Working Capital. If Base Net Working Capital is equal to Net Working Capital
based on the Statement of Net Working Capital, no adjustment shall be made to
the Purchase Price pursuant to this Section 4.3(e). If no Notice of Disagreement
has been given by the Company, Buyer shall remit to the Company or the Company
shall remit to Buyer, as the case may be, in immediately available funds, all
amounts constituting a Purchase Price Adjustment within 30 days after receipt by
the Company of the Statement of Net Working Capital in accordance with this
Section 4.3. If the Company gives Buyer a Notice of Disagreement, payment shall
be made in immediately available funds within five
-25-
business days after the Final Determination Date. Each payment made pursuant to
this Section 4.3 shall include interest on the amount of such payment at an
annual rate equal to the prime interest rate per annum as stated in the Wall
Street Journal on the date of such payment for the period from the Closing Date
to the date of payment.
ARTICLE V
Closing
5.1 Purchase and Sale; Assumption and Acceptance. At the Closing, on
the terms and subject to the conditions set forth in this Agreement, (i) the
Company and its Subsidiaries that are not Transferred Subsidiaries shall sell,
transfer and assign to Buyer, and Buyer shall purchase from the Company and such
Subsidiaries, all of the Purchased Assets, (ii) the Company and its Subsidiaries
that are not Transferred Subsidiaries shall assign and transfer to Buyer, and
Buyer shall accept and assume, and shall thereafter perform and discharge when
due, and shall hold the Company and its Affiliates harmless from (pursuant to
the terms and conditions of the Indemnification Agreement), all of the Assumed
Liabilities, (iii) the Company shall thereafter perform and discharge when due,
and shall indemnify and hold Buyer and its Affiliates harmless from (pursuant to
the terms and conditions of the Indemnification Agreement), all of the Excluded
Liabilities, and (iv) Buyer and the Company shall effect the deliveries and
payments set forth in Sections 5.3 and 5.4.
5.2 Closing Date. Subject to the conditions set forth in this
Agreement, the Closing shall occur at the offices of Xxxxxxxx & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 9:00 A.M. on the first Business Day
following the satisfaction or waiver of the last to be satisfied or waived of
the conditions set forth in Article X, or at such later time and date as Buyer
and the Company shall agree (the "Closing Date"). The Closing shall be deemed to
take place as of the close of the Company's business in The City of New York on
the Closing Date.
5.3 Delivery and Payment by Buyer. At the Closing, Buyer shall execute
and deliver to the Company the following:
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(a) the Purchase Price, by wire transfer of immediately available funds
to an account previously designated by the Company;
(b) the Ancillary Agreements;
(c) such written assumptions of the Company's collective bargaining
agreements as shall comply with such agreements and shall be reasonably
satisfactory to the Company;
(d) such assumptions in writing as may be required to effectively
assign and transfer any other Contracts or any other of the Purchased Assets or
Assumed Liabilities that may be assigned without the consent of the counterparty
if so assumed by Buyer; and
(e) such other customary instruments of assumption, filings or
documents, in form and substance reasonably satisfactory to the Company, as may
be required to give effect to this Agreement and the Ancillary Agreements.
5.4 Deliveries by the Company. At the Closing, the Company shall
execute and deliver to Buyer the following documents:
(a) the Ancillary Agreements, the Shareholder Indemnity Agreement and
Fund Agreement, executed by all parties thereto;
(b) customary deeds for commercial transactions of the same type as the
Transactions and reasonably sufficient to enable Buyer's title insurance company
to issue title insurance in respect of the Owned Real Property;
(c) assignments of the Leased Real Property in recordable form to the
extent necessary;
(d) the stock certificates representing all of the outstanding shares
of capital stock or other equity interests of the Transferred Subsidiaries;
(e) all transferable Permits currently held by the Company pertaining
to the Purchased Assets or the Business;
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(f) a certification (a form of which is attached hereto as Exhibit L,
"FIRPTA Certificate") that the Company and any Subsidiary of the Company that is
required to sell any of the Purchased Assets to the Buyer hereunder are not
foreign persons in the form set forth in Treasury Regulations Section
1.1445-2(b)(iii)(B). Notwithstanding anything to the contrary contained herein,
if the Company or any such Subsidiary fails to provide the Buyer with the FIRPTA
Certificates, the Buyer shall be entitled to withhold the requisite amount from
the Purchase Price in accordance with Section 1445 of the Code and the Treasury
Regulations promulgated thereunder;
(g) evidence reasonably satisfactory to Buyer that Xxxxxx-Xxxxxx Inc.
holds the Xxxxxx-Xxxxxx Retained Cash Amount; and
(h) such other customary instruments of transfer, assumptions, filings
or documents, in form and substance reasonably satisfactory to Buyer, as may be
required to give effect to this Agreement and the Ancillary Agreements.
5.5 Notices of Sale. The Company will prepare and mail on the Closing
Date such notices to any third party under each of the Contracts assigned by the
Company and assumed by Buyer as are necessary or may be reasonably requested by
Buyer advising such other party or parties that such agreements have been
assigned and directing such party or parties to send to Buyer all future notices
and corre spondence relating to such agreements. The Company will promptly
forward to Buyer all correspondence received by the Company after the Closing
Date that relates to the Purchased Assets, the Assumed Liabilities or the
Business.
ARTICLE VI
Representations and Warranties of the Company
Except (i) as set forth in the Disclosure Letter, or (ii) as
specifically disclosed in the Audited Financial Statements, the Interim
Financial Statements or the Company Reports filed on or prior to the date
hereof, the Company hereby represents and warrants, as of the date hereof and as
of the Closing, to Buyer that:
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6.1 Organization, Good Standing and Qualification; Title to Transferred
Subsidiaries. (a) The Company and each of the Transferred Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite corporate or
similar power and authority to own and operate the Purchased Assets and to carry
on the Business as presently conducted and is qualified to do business and is
in good standing as a foreign corporation in each jurisdiction where the
ownership or operation of the Purchased Assets or conduct of the Business
requires such qualification, except where the failure to be so qualified or in
good standing, when taken together with all other such failures, is not
reasonably likely to have a Material Adverse Effect or prevent or materially
delay the consummation of the Transactions.
(b) Each of the outstanding shares of capital stock and other equity
interests of each of the Transferred Subsidiaries is duly authorized, validly
issued, fully paid and nonassessable and, except as set forth in Section
2.1(a)(i) of the Disclosure Letter, is owned by the Company free and clear of
all Encumbrances and free of any restriction on the right to vote, sell or
otherwise dispose of such capital stock or other equity interest, except for
restrictions imposed by applicable securities laws. Except as set forth in
Section 2.1(a)(i) of the Disclosure Letter, the Company owns 100% of the
outstanding shares of capital stock and other equity interests of each of the
Transferred Subsidiaries. None of the Transferred Subsidiaries has outstanding
any bonds, debentures, notes or other obligations the holders of which have the
right to vote (or convertible into or exercisable for securities having the
right to vote) with the stockholders of the Company on any matter ("Voting
Debt") or any stockholders agreement or any options or agreements of any kind to
subscribe for shares or other securities of any such Transferred Subsidiary. The
Company has made available to Buyer a complete and correct copy of the
Transferred Subsidiaries' certificates of incorporation and bylaws, each as
amended to date. The Transferred Subsidiaries' certificates of incorporation and
bylaws as so delivered are in full force and effect. Section 2.1(a)(i) of the
Disclosure Letter lists the name and jurisdiction of incorporation of each of
the Transferred Subsidiaries, the name of each of the Transferred Subsidiaries'
parent corporation, a complete and accurate description of the authorized,
issued and outstanding capi-
-29-
tal stock of each of the Transferred Subsidiaries and states, with respect to
each Transferred Subsidiary, whether such Transferred Subsidiary is dormant or
inactive. In negotiating the Non-Subsidiary Agreements, the Company complied
with all applicable Laws. Each Non-Subsidiary Agreement is a valid and binding
agreement and is in full force and effect. None of the Transferred Subsidiaries
directly or indirectly owns any equity or similar interest in, or any interest
convertible into or exchangeable for any equity or similar interest in, any
Person with respect to which interest any of the Transferred Subsidiaries is
required to invest or for which any of the Transferred Subsidiaries has
liability which is not limited.
6.2 Corporate Authority; Stockholder Approval. The Company has all
requisite corporate power and authority and has taken all corporate action
necessary in order to execute, deliver and perform its obligations under this
Agreement, the Memorandum of Understanding and the Ancillary Agreements and to
consummate, subject only to the authorization by a resolution adopted by holders
of a majority of the Company Shares entitled to vote thereon (the "Company
Requisite Vote"), the Transactions. The Company Requisite Vote is the only vote
of the holders of the Company's securities necessary to approve this Agreement
and the Transactions. Each of this Agreement and the Memorandum of Understanding
is, and when executed and delivered by the Company each of the Ancillary
Agreements will be, a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles (the "Bankruptcy and Equity Exception").
6.3 Governmental Filings; No Violations. (a) Other than the filings
and/or notices (i) pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (ii) pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), (iii) pursuant to
Environmental Laws, including the New Jersey Industrial Site Recovery Act and
the Connecticut Property Transfer Act, (iv) pursuant to the European Community
Merger Control Regulation and (v) required to be made with any Governmental
Entity in any jurisdiction outside the United States as set forth in Section 6.3
of the Disclosure Letter, no notices, reports or other filings are
-30-
required to be made by the Company or any Transferred Subsidiary with, nor are
any consents, registrations, approvals, Permits or authorizations required to be
obtained by the Company or any Transferred Subsidiary from, any Governmental
Entity in connection with the execution and delivery of this Agreement and the
Ancillary Agreements by the Company and the consummation by the Company and the
Transferred Subsidiaries of the Transactions, except those that the failure to
make or obtain is not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect or prevent, materially delay or materially impair
the ability of the Company to consummate the Transactions.
(b) The execution, delivery and performance of this Agreement by the
Company does not, and the consummation by the Company of the Transactions will
not, constitute or result in (i) a breach or violation of, or a default under,
the certificate of incorporation or bylaws of the Company or the comparable
governing instruments of any of its Subsidiaries or (ii) a breach or violation
of, a default under, or an acceleration of any obligations or the creation of an
Encumbrance on the Purchased Assets (with or without notice, lapse of time or
both) pursuant to, any Contract not other wise terminable by the other party
thereto on 90 days' or less notice, or any Law or governmental or
non-governmental Permit or (iii) assuming compliance with the matters referred
to in Section 6.3(a), contravene, conflict with, or result in a breach or
violation of any provisions of applicable Law to which the Company or any of
its Subsidiaries is subject or any judgment, injunction, order or decree to
which the Company or any of its Subsidiaries is subject except, in the case of
clauses (ii) and (iii) above, for any breach, violation, conflict, default,
acceleration, creation or change that, individually or in the aggregate, is not
reasonably likely to have a Material Adverse Effect.
6.4 Business Contracts. Section 6.4 of the Disclosure Letter lists any
Contracts not otherwise terminable by the Company or the other party thereto on
90 days' or less notice, the performance of which involved consideration in
excess of $2,500,000 in the fiscal year ended March 31, 2001 or which the
Company reasonably believes will involve consideration in excess of $2,500,000
in any future fiscal year (collectively, "Business Contracts"). The Company has
made available to Buyer a correct and complete copy of each Contract listed in
Section 6.4 of the Disclosure Letter.
-31-
With such exceptions as are not reasonably likely to have a Material Adverse
Effect, (i) each Contract listed in Section 6.4 of the Disclosure Letter is a
valid and binding agreement and is in full force and effect, (ii) the Company
has not received any written notice from any third party of such third party's
intention not to renew a Business Contract, (iii) the Company has not allowed
any deadline for notice of intent to renew a Business Contract to pass without
giving such notice of its intention to renew such Business Contract, and (iv)
the Company is not in breach or violation of, or default under, any Business
Contract, and, to the knowledge of the Company, there is no event which would
(with the passage of time, notice or both) constitute a breach or default
thereunder by the Company or any of its Subsidiaries.
6.5 Company Reports; Audited Financial Statements; Interim Financial
Statements. (a) The Company has delivered to Buyer each registration statement,
report, proxy statement or information statement prepared by it since March 31,
2000 (the "Audit Date") including (i) the Company's Annual Report on Form 10-K
for the year ended March 31, 2000, and (ii) the Company's Quarterly Report on
Form 10-Q for the period ended December 31, 2000, each in the form (including
exhibits, annexes and any amendments made prior to the date of this Agreement
thereto) filed with the Securities and Exchange Commission (the "SEC") (collec-
tively, the "Company Reports"). As of their respective dates (or, if amended, as
of the date of such amendment), the Company Reports, insofar as they relate to
the Business, the Purchased Assets and the Assumed Liabilities, did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances in which they were made, not misleading. As of the
respective dates on which they were filed and, if amended, on the date of such
amendment, the Company Reports complied in all material respects with the
requirements of the Exchange Act and the rules and regulations promulgated
thereunder. Each of the combined balance sheets included in or incorporated by
reference into the Company Reports (including the related notes and schedules)
fairly presents, or will fairly present, the combined financial position of the
Company and its Subsidiaries as of its date and each of the combined statements
of earnings, retained earnings and comprehensive earnings and combined
statements of cash flows and of changes in financial position included in or
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incorporated by reference into the Company Reports (including any related notes
and schedules) fairly presents, or will fairly present, the results of
operations, retained earnings and changes in financial position, as the case may
be, of the Company and its Subsidiaries for the periods set forth therein
(subject, in the case of unaudited statements, to notes and normal year-end
audit adjustments that will not be material in amount or effect), in each case
in accordance with generally accepted accounting principles ("GAAP")
consistently applied during the periods involved, except as may be noted
therein.
(b) The combined balance sheets and the combined statements of earnings
included in the Audited Financial Statements, the Interim Financial Statements
and the financial statements delivered in accordance with Section 8.7 fairly
present the combined net assets and results of operations of the Purchased
Assets and the Assumed Liabilities; the "Arrid" and "Lady's Choice" product
lines and the Xxxxxxx Xxx business; and the Purchased Assets and the Assumed
Liabilities (excluding the "Arrid" and "Lady's Choice" product lines and the
Xxxxxxx Xxx business), as the case may be (but excluding, in the case of the
Audited Financial Statements and Interim Financial Statements, the Segregated
Assets and Liabilities), as of their respective dates, in each case in
accordance with GAAP consistently applied during the periods involved and the
accounting principles summarized therein, except as may be noted therein, and
subject (in the case of the Interim Financial Statements and the interim
financial statements delivered in accordance with Section 8.7) to normal
year-end adjustments that will not be material in amount or effect and the
absence of footnotes and similar presentation items therein. Except as set forth
in the Audited Financial Statements, the Interim Financial Statements and the
financial statements delivered in accordance with Section 8.7, and except for
liabilities and obligations under this Agreement, none of the Company nor any of
its Subsidiaries has any liabilities or obligations of any nature required by
GAAP to be set forth on a combined balance sheet of the Purchased Assets and the
Assumed Liabilities or in the notes thereto which, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect.
(c) Section 6.5(c) of the Disclosure Letter sets forth (i) the
outstanding amount of indebtedness for money borrowed of the Transferred
Subsidiaries and any other
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indebtedness for money borrowed to be assumed by the Buyer as of the date set
forth therein, and (ii) a list of the Contracts containing the terms applicable
to such indebtedness.
(d) There has not been a material adverse change in the financial
position of the Purchased Assets and Assumed Liabilities taken as a whole
(excluding the Segregated Assets and Liabilities) as of March 31, 2001, as
compared to the financial position of the Purchased Assets and Assumed
Liabilities taken as a whole (excluding the Segregated Assets and Liabilities)
set forth in the audited combined balance sheet included in the Audited
Financial Statements.
(e) The statement of earnings and the statement of cashflows referred
to in clause (v) of the first sentence of Section 8.7(a), collectively with the
reconciliations referred to therein, will present net sales of the Purchased
Assets and Assumed Liabilities (excluding the Segregated Assets and Liabilities)
of not less than $530,000,000; earnings before interest and taxes of the
Purchased Assets and Assumed Liabilities (excluding the Segregated Assets and
Liabilities) of not less than $80,000,000; earnings before interest, taxes,
depreciation and amortization of the Purchased Assets and Assumed Liabilities
(excluding the Segregated Assets and Liabilities) of not less than $97,000,000;
and capital expenditures of the Purchased Assets and Assumed Liabilities
(excluding the Segregated Assets and Liabilities) of not more than $14,000,000.
6.6 Absence of Certain Changes. Except as reflected, reserved or
otherwise disclosed in the Audited Financial Statements, the Interim Financial
Statements, the financial statements included in or incorporated by refer ence
in the Company Reports, or as contemplated by this Agreement, (I) since the
Audit Date, the Company and its Subsidiaries have conducted the Business only
in, and have not engaged in any material transaction other than according to,
the ordinary and usual course of business and there has not been (a) as of the
date of this Agreement, any material action taken by the Company or its
Subsidiaries that would have been prohibited under Sections 8.1(a)(ii)(B),
8.1(a)(ii)(C), 8.1(b)(i) through (iv), 8.1(b)(ix), 8.1(b)(xi) through (xiii),
8.1(b)(xv) and 8.1(b)(xvi) through (xviii), (b) any change in the financial
condition, business or results of operations of the Business that,
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individually or in the aggregate, has had or is reasonably likely to have a
Material Adverse Effect or (c) any change by the Company in any of its material
accounting principles, practices or methods for the Business, other than any
such changes made as a result of any change in GAAP as applicable to the Company
or the Business, and (II) since the Audit Date and prior to the date of this
Agreement, there has not occurred any casualty loss involving an amount in
excess of $2,500,000 with respect to any personal property or Owned Real
Property that comprise Purchased Assets, whether or not covered by insurance.
6.7 Employee Benefits. (a) A copy of each material Compensation and
Benefit Plan and each material International Compensation and Benefit Plan and
any trust agreement or insurance contract forming a part of such plans has been
made available to Buyer prior to the date hereof, other than International
Compensation and Benefit Plans that are maintained by Governmental Entities. The
material Compensation and Benefit Plans and material International Compensation
and Benefit Plans are listed in Section 6.7(a) of the Disclosure Letter, other
than International Compensation and Benefit Plans that are maintained by
Governmental Entities.
(b) A list of all Available Employees as of March 31, 2001, other than
Employees of the Transferred Subsidiaries, which indicates those Employees who
are "Leave Recipients" as defined in Section 9.1(c) is set forth on Section
6.7(b)(1) to the Disclosure Letter and a list of all Transition Employees to be
retained by the Company is set forth on Section 6.7(b)(2) of the Disclosure
Letter. Approximately five Business Days prior to the Closing Date, the Company
will provide to Buyer a list of (i) current employees of the Transferred
Subsidiaries, (ii) all Available Employees as of such date and (iii) those
Employees of the Business involuntarily separated from employment with the
Company during the 90 days preceding the date thereof.
(c) The Retirement Plan for Bargaining Employees of the Company (the
"Assumed Pension Plan") is in substantial compliance with ERISA and all other
applicable Laws, and has received a favorable determination letter from the
Internal Revenue Service (the "IRS") with respect to its qualification under
Section 401(a) of the Code, and the Company is not aware of any circumstances
likely to result
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in revocation of any such favorable determination letter. There is no pending
or, to the knowledge of the Company, threatened material litigation, dispute or
governmental audit or investigation relating to the Assumed Pension Plan or any
other Compensation and Benefit Plan that Buyer is assuming or with respect to
which Buyer would otherwise have liability. Neither the Company nor any of its
Subsidiaries has engaged in a transaction with respect to the Assumed Pension
Plan that, assuming the taxable period of such transaction expired as of the
date hereof or the Closing Date, as applicable, would subject the Company or any
of its Subsidiaries to a material tax or penalty imposed by either Section 4975
of the Code or Section 502 of ERISA.
(d) As of the date hereof, no liability under Subtitle C or D of Title
IV of ERISA or Part III of Title I of ERISA has been or is expected to be
incurred by the Company or any Subsidiary with respect to the Assumed Pension
Plan.
(e) No Compensation and Benefit Plan that is subject to Title IV of
ERISA (a "Title IV Plan") is a "multiemployer pension plan," as defined in
section 3(37) of ERISA, nor is any Title IV Plan a plan described in section
4063(a) of ERISA.
(f) Each Compensation and Benefit Plan has been operated and
administered in all material respects in accordance with its terms and
applicable Law, including but not limited to ERISA and the Code.
(g) With respect to the Assumed Pension Plan, as of the last day of the
most recent plan year ended prior to the date hereof, the actuarially determined
present value of all "benefit liabilities", within the meaning of Section
4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions
contained in the Pension Plan's most recent actuarial valuation), did not exceed
the then current value of the assets of such Pension Plan.
(h) All International Compensation and Benefit Plans comply in all
respects with applicable Law except as is not reasonably expected to have a
Material Adverse Effect. The Transferred Subsidiaries have no material unfunded
liabilities calculated on a going-concern basis with respect to any such plan
that is a pension benefit plan, except as permitted or required by applicable
Laws and
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reflected in the Audited Financial Statements or the Interim Financial
Statements.
(i) The consummation of the Transactions will not, either alone or in
connection with another event, (x) entitle any Available Employee to severance
pay or any other payments, except as expressly provided in this Agreement or (y)
accelerate the time of payment or vesting, or increase the amount of
compensation due any such Available Employee.
6.8 Litigation and Liabilities. Except as reflected, reserved or
otherwise disclosed in the Audited Financial Statements and the Interim
Financial Statements, there are no (i) civil, criminal or administrative
actions, suits, claims, hearings, investigations, arbitrations or proceedings
("Claims") pending or, to the knowledge of the Company, threatened against the
Company or any Subsidiary relating to the Business or (ii) Liabilities which
would be required to be disclosed in the Audited Financial Statements or Interim
Financial Statements under GAAP if occurring on a date covered by such financial
statements ("Obligations"), in each case that would constitute Assumed
Liabilities, except for such Obligations as are not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect.
6.9 Compliance with Laws; Permits. (a) Each of the Company and its
Subsidiaries has in effect all federal, state, local and foreign governmental
Permits necessary for it to own, lease or operate all of the properties and
assets included in the Purchased Assets and to conduct the Business and to
operate the Purchased Assets as now conducted or operated, and there has
occurred no default under any such Permit, and no proceeding is pending that
seeks, and to the knowledge of the Company, no event has occurred that permits,
or upon the giving of notice or lapse of time or otherwise would permit,
revocation, non-renewal, modification, suspension or termination of any Permit,
except for lack of or deficiencies in Permits and except for such defaults under
Permits and events which, individually or in the aggregate, are not reasonably
likely to have a Material Adverse Effect. The Business has not been, and is not
being, conducted in violation of any Order or Permit of any court or
Governmental Entity (collectively, "Laws"), except for violations that,
individually or in the aggregate, are not reasonably likely to have a Material
Adverse Effect.
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(b) As to each product subject to the jurisdiction of the U.S. Food and
Drug Administration under the Federal Food, Drug and Cosmetic Act (the "FDCA")
or the U.S. Department of Justice under the Controlled Substances Act, 21 U.S.C.
Section 801, et seq (the "CSA"), or any similar agency, rule or regulation of
any other jurisdiction, which is manufactured, tested, distributed, held and/or
marketed by the Business or the Purchased Assets, such product is being
manufactured, held and distributed in compliance with all applicable
requirements under the FDCA, the CSA and such applicable rules and regulations
of any other jurisdictions, including, but not limited to, those relating to
investigational use, premarket approval, good manufacturing practices, labeling,
promotion and advertising, record keeping and filing of reports and security,
except for such failures so to comply that, individually or in the aggregate,
are not reasonably likely to have a Material Adverse Effect.
6.10 Environmental Matters. Except for such matters as are not
reasonably likely to have individually or in the aggregate a Material Adverse
Effect:
(a) the Purchased Assets:
(i) are and have been in substantial compliance with all applicable
Environmental Laws;
(ii) are not the subject of any pending or, to the knowledge of the
Company, any threatened, investigation or written notice from any Governmental
Entity alleging the violation of any applicable Environmental Laws;
(iii) are not currently subject to any Claim or Order arising under any
Environmental Law;
(iv) have not had any air emissions or wastewater discharges of
Hazardous Substances except as permitted under applicable Environmental Laws;
and
(b) there are no facts or circumstances whereby the ownership,
operation (including cessation of operations), or transfer of the Purchased
Assets would reasonably be expected to result in any Liabilities under any
Environmental Law.
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6.11 Labor Matters. As of the date hereof, neither the Company nor any
of its Subsidiaries is the subject of, nor, to the Knowledge of the Company, has
there been threatened, any material Claim asserting that the Company or any of
its Subsidiaries has committed an unfair labor practice with respect to
employees of the Business or seeking to compel it to bargain with any labor
union or labor organization with respect to employees of the Business nor is
there pending or, to the knowledge of the Company, threatened, nor has there
been for the five years prior to the date of this Agreement, any organized
effort or demand for recognition by any labor organization or any labor dispute
or slow-down that is material to the operations of any of the plants comprising
the Purchased Assets. There has not been, for the five years prior to the date
of this Agreement, and there is not pending, nor, to the Knowledge of the
Company, has there been threatened, any labor strike, walk-out, work stoppage or
lockout with respect to employees of the Business.
6.12 Insurance. True and complete copies of all material fire and
casualty, general liability, business interruption, product liability, workers'
compensation, disability and sprinkler and water damage insurance policies
maintained by the Company or any of its Subsidiaries have been made available to
Buyer and such policies are in full force and effect. The Company or relevant
Subsidiary has paid all premiums under such policies and is not in default with
respect to its obligations thereunder. All material claims made by the Company
under such policies during the past year are described in Section 6.12 of the
Disclosure Letter.
6.13 Title to Tangible Personal Property. The Company or a wholly owned
Subsidiary has good title to, or a valid leasehold interest in, all Owned
Tangible Personal Property and all Leased Tangible Personal Property, free and
clear of any Encumbrances, other than Permitted Encumbrances. All of the
fixtures, machinery, equipment and other tangible personal property and assets
owned or used by the Company and its Subsidiaries in the Business are in good
condition and repair, except for ordinary wear and tear not caused by neglect,
and are usable in the ordinary course of business, except that, with respect to
any matter covered by this sentence which would not, individually or in the
aggregate, reasonably be likely to have a Material Adverse Effect.
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6.14 Title to Owned and Leased Real Properties; Absence of
Encumbrances. (a) Section 6.14 of the Disclosure Letter sets forth a list of all
Owned Real Property and all Leased Real Property used to carry out the Business
as presently conducted. None of the Owned Real Property or Leased Real Property
is leased or licensed by the Company to, or otherwise used by, any other Person.
(b) The Company has not received written notice of any uncured default,
and to the knowledge of the Company there are no pending uncured defaults, under
the lease documents pertaining to any material Leased Real Property, except for
such matters as are reasonably susceptible of cure without material expense or
delay, and are not reasonably likely to disturb Buyer's use of the Leased Real
Property affected thereby to carry on the Business as presently conducted.
(c) Except as disclosed in Section 6.14 of the Disclosure Letter, the
Company or a Subsidiary has good title to, or, with respect to leasehold
interests, a valid leasehold interest in, the Owned Real Property and the Leased
Real Property, as the case may be, free and clear of all Encumbrances, except
for Permitted Encumbrances and such imperfections of title, liens and easements
as will not, individually or in the aggregate, materially impair present
business operations at such properties.
(d) Except as disclosed in Section 6.14 of the Disclosure Letter, no
consent to assignment of Leased Real Property will be required in connection
with the Purchase.
6.15 Adequacy and Sufficiency of Purchased Assets. (a) This Agreement,
the Ancillary Agreements and the instruments and documents to be delivered by
the Company and the Subsidiaries to Buyer at or following the Closing shall be
adequate and sufficient to transfer to Buyer the Company's and its Subsidiaries'
entire right, title and interest in and to the Purchased Assets. The Purchased
Assets when taken together with the rights and services under the Ancillary
Agreements are sufficient in all material respects to carry out the Business as
presently conducted by the Company and its Subsidiaries.
(b) To the Company's knowledge, Section 6.15 of the Disclosure Letter
contains a true and complete list of (i) all buildings and parcels owned or
leased by the Company
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or any of its Subsidiaries during the ten years prior to the date of this
Agreement that were used primarily in connection with the operation of the
Business and all buildings and parcels owned or leased by the Transferred
Subsidiaries during the ten years prior to the date of this Agreement other than
in connection with the Business but which, in each case, do not comprise
Purchased Assets, (ii) all products marketed and sold by the Company or its
Subsidiaries in connection with the Business and all products marketed and sold
by the Transferred Subsidiaries other than in connection with the Business, in
each case, during the ten years prior to the date of this Agreement which are
not currently marketed and sold by the Company or its Subsidiaries, and (iii)
operations of the Company or its Subsidiaries relating to the Business and
operations of the Transferred Subsidiaries other than in connection with the
Business, in each case, which have become discontinued operations of the Company
or its Subsidiaries during the ten years prior to the date of this Agreement.
6.16 Intellectual Property. (a) The Company and/or its Subsidiaries
owns, or is licensed or otherwise possesses the right to use, in each case free
and clear of all Encumbrances, all Business-Related Intellectual Property,
except for any such failures to own, be licensed or possess as are not
reasonably likely, individually or in the aggregate, to have a Material Adverse
Effect, and all material patents, trademarks, trade names, service marks and
copyrights which comprise the Business-Related Intellectual Property and are
used in the Business as currently conducted, are valid and subsisting, except
for such failures to be valid and subsisting as are not individually or in the
aggregate, reasonably likely to have a Material Adverse Effect. Section 6.16 of
the Disclosure Letter contains a true and complete list as of the date of this
Agreement of all material license agreements to which the Company or any of its
Subsidiaries is a party pursuant to which third parties are licensed to use
Business-Related Intellectual Property.
(b) Except for such matters as are not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect:
(i) neither the Company nor any of its Subsidiaries is, nor will it be
as a result of the execution and delivery of this Agreement or the Ancillary
Agreements
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or the contemplated transfer of the Purchased Assets hereunder, in violation of
any Third Party Intellectual Property Rights;
(ii) no Claims involving the Company or its Subsidiaries with respect
to the Business-Related Intellectual Property are currently pending or, to the
knowledge of the Company, threatened by any Person; and
(iii) to the knowledge of the Company, there is no unauthorized use,
infringement or misappropriation of any of the Business-Related Intellectual
Property by any third party.
6.17 Brokers and Finders. Neither the Company nor any of its
Subsidiaries has incurred any Liabilities for any brokerage fees, commissions or
finders' fees in connection with the Transactions for which Buyer will be
liable.
6.18 Taxes. (a) Definitions. As used in this Agreement, the term (i)
"Tax" (including, with correlative meaning, the terms "Taxes" and "Taxable")
includes all federal, state, local and foreign income, profits, franchise, gross
receipts, environmental, customs duty, capital stock, severance, stamp, payroll,
sales, employment, unemployment, disability, use, property, withholding, excise,
production, value added, occupancy and other taxes, duties or assessments of any
nature whatsoever (including any withholding taxes for which any Transferred
Subsidiary is responsible as a result of distributions or any other payments to
the Company and its Subsidiaries or any other Persons), together with all
interest, penalties and additions imposed with respect to such amounts and any
interest in respect of such penalties and additions, (ii) "Tax Authority" means
any Governmental Entity responsible for the imposition of Tax, and (iii) "Tax
Return" includes all returns and reports (including elections, declarations,
disclosures, schedules, estimates and information returns) required to be
supplied to a Tax Authority relating to Taxes.
(b) Company and Subsidiaries Other Than Transferred Subsidiaries. The
Company and each of its Subsidiaries other than the Transferred Subsidiaries (i)
have prepared in good faith and duly and timely filed (taking into account any
extensions of time within which to file) all Tax Returns required to be filed by
any of them
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and all such tax returns are true, correct and complete in all material
respects; (ii) have paid all Taxes that are shown as due on such filed Tax
Returns; and (iii) have not waived any statute of limitations with respect to
Taxes or agreed to any extension of time with respect to a Tax assessment or
deficiency. As of the date hereof, there are not pending or, to the knowledge of
the Company, threatened in writing, any audits, examinations, investigations or
other proceedings in respect of Taxes or Tax matters of the Company or any of
its subsidiaries (other than the Transferred Subsidiaries).
The Company and any Subsidiary that is required to sell any of the
Purchased Assets to the Buyer hereunder are not foreign persons as defined in
Treasury Regulations Section 1.1445-2(b)(2). There are (and as of immediately
following the Closing there will be) no Liens (as defined below) on any of the
Purchased Assets.
(c) Transferred Subsidiaries. The Company represents and warrants as to
each of the Transferred Subsidiaries as follows:
(i) Each Transferred Subsidiary has duly and timely filed (taking into
account any extension of time within which to file) all Tax Returns required to
be filed by it. All Tax Returns filed by such Transferred Subsidiary are true,
correct and complete in all material respects.
(ii) Each Transferred Subsidiary has paid all Taxes that are shown as
due on such filed Tax Returns, and has withheld and remitted to the appropriate
Tax Authority, with respect to amounts paid or owing to employees, creditors,
and third parties, all Taxes it is required to have withheld.
(iii) No Transferred Subsidiary has waived any statute of limitations
with respect to Taxes or agreed to any extension of time with respect to a tax
assessment or deficiency, nor is there any tax deficiency outstanding, proposed
in writing or assessed against any Transferred Subsidiary.
(iv) There are not pending or, to the knowledge of the Company,
threatened in writing, any audits, examinations, investigations or other
proceedings in respect of the Taxes or Tax matters of the Transferred
Subsidiaries.
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(v) Each Transferred Subsidiary, other than Xxxxxx-Xxxxxxx (N.Z.) Ltd.,
is treated as a corporation for U.S. federal income tax purposes. Xxxxxx-Xxxxxxx
(N.Z.) Ltd. has validly elected on Form 8832 to be treated as a disregarded
entity for U.S. tax purposes.
(vi) There are (and as of immediately following the Closing there will
be) no Encumbrances on the assets of any Transferred Subsidiary relating to or
attributable to Taxes, other than Encumbrances for personal property taxes not
yet due and payable.
(vii) No Transferred Subsidiary is a party to a Tax sharing, Tax
indemnity, Tax allocation or similar contract (whether or not written), nor does
or will any Transferred Subsidiary owe any amount under such agreement.
(viii) No adjustment relating to any Tax Return filed by any
Transferred Subsidiary has been proposed in writing by any Tax Authority to any
Transferred Subsidiary which has not been resolved to the satisfaction of the
relevant Tax Authority.
(ix) No Transferred Subsidiary is or has been included in any
"consolidated," "unitary," "combined" or similar Tax Return provided for under
the laws of the United States or any foreign jurisdiction for any taxable period
for which the statute of limitations has not yet expired.
(x) No power of attorney has been granted by or imposed upon any
Transferred Subsidiary with respect to any matter relating to Taxes.
(xi) No Transferred Subsidiary has received written notice of any claim
made by a Tax authority in a jurisdiction where such Transferred Subsidiary does
not file Tax Returns, that such Transferred Subsidiary is or may be subject to
taxation by that jurisdiction.
(xii) No Transferred Subsidiary is, or has been for any prior Taxable
Period, a passive foreign investment corporation as defined in Section 1297(a)
of the Code.
(xiii) The unpaid Taxes of the Transferred Subsidiaries do not, as of
December 31, 2000, exceed the reserve for Taxes (other than any reserve for
deferred Taxes
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of the Transferred Subsidiaries established to reflect timing differences
between book and Tax income) set forth on the face of the balance sheet for the
Transferred Subsidiaries included in the Interim Financial Statements, and the
unpaid Taxes of the Transferred Subsidiaries will not, as of the Closing Date,
exceed that reserve as adjusted for the passage of time through the Closing
Date.
ARTICLE VII
Representations and Warranties of Buyer
Buyer hereby represents and warrants, as of the date hereof and as of
the Closing, to the Company as follows:
7.1 Organization, Good Standing and Qualification. Buyer is a limited
liability company duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization.
7.2 Corporate Authority. (a) No vote of the holders of the capital
stock of Buyer is necessary to approve this Agreement, the Memorandum of
Understanding or the Transactions. Buyer has the requisite power and authority
and has taken all action necessary in order to execute and deliver this
Agreement and the Memorandum of Understanding and to consummate the
Transactions. Each of this Agreement and the Memorandum of Understanding is a
valid and binding agreement of Buyer enforceable against Buyer in accordance
with its terms, subject to the Bankruptcy and Equity Exception.
(b) Each of Strategic Buyer and Buyer has the requisite power and
authority and has taken all action necessary in order to execute and deliver the
Product Line Purchase Agreement. The Product Line Purchase Agreement is a valid
and binding agreement of Strategic Buyer and Buyer, enforceable against each of
them in accordance with its terms, subject to the Bankruptcy and Equity
Exception.
7.3 Governmental Filings; No Violations. (a) Other than the filings
and/or notices (i) pursuant to the Exchange Act, (ii) pursuant to the HSR Act,
(iii) pursuant to Environmental Laws, including the New Jersey Industrial Site
Recovery Act and the Connecticut Property Transfer Act, (iv) pursuant to the
European
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Community Merger Control Regulation and (v) required to be made with any
Governmental Entity in any jurisdiction outside the United States, no notices,
reports or other filings are required to be made by Buyer with, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by Buyer from, any Governmental Entity, in connection with the
execution and delivery of this Agreement by Buyer and the consummation by Buyer
of the Transactions, except those that the failure to make or obtain are not,
individually or in the aggregate, likely to prevent, materially delay or impair
the ability of Buyer to consummate the Transactions.
(b) The execution, delivery and performance of this Agreement and the
Memorandum of Understanding by Buyer does not, and the consummation by Buyer of
the Transactions will not constitute or result in (i) a breach or violation of,
or a default under, the organizational documents and governing instruments of
Buyer or (ii) a breach or violation of, a default under, or an acceleration of
any obligations or the creation of an Encumbrance on the assets of Buyer (with
or without notice, lapse of time or both) pursuant to, any agreement, lease,
contract, note, mortgage, indenture or other obligation binding upon Buyer or
any Law or governmental or non-governmental Permit to which Buyer is subject,
except, in the case of clause (ii) above, for breach, violation, default,
acceleration, creation or change that, individually or in the aggregate, is not
reasonably likely to prevent, materially delay or impair the ability of Buyer to
consummate the Transactions. Buyer does not have any Subsidiaries.
7.4 Funds. Buyer has received and delivered to the Company executed
commitment letters with respect to debt financing of up to $420 million (the
"Financing Arrangements") and equity financing of up to $356 million (the
"Equity Arrangements" and, collectively with the Financing Arrangements, the
"Arrangements"). When funded in accordance with their terms, the Arrangements
will provide Buyer with funds in an aggregate amount sufficient to enable Buyer
to consummate the Transactions and pay all fees, expenses and costs in
connection with the negotiation, execution and performance of this Agreement and
the Ancillary Agreements. The Financing Arrangements and the Equity Arrangements
remain in full force and effect.
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7.5 Ownership of Shares. Neither Buyer nor any of its Subsidiaries
beneficially owns any (i) shares of any class of stock of CPI or (ii) Company
Shares.
ARTICLE VIII
Certain Covenants
8.1 Interim Operations.
(a) From the date hereof until the Closing Date, the Company shall, and
shall cause its Subsidiaries to:
(i) operate the Business in the ordinary course of business, consistent
with past practice, and, to the extent consistent with such operation, use
commercially reasonable efforts to: (A) preserve the present business
organization intact; and (B) preserve any beneficial business relationships with
all customers, suppliers, and others having business dealings with the Business;
and
(ii) maintain (A) the Purchased Assets in such condition and repair as
is consistent with past practice, (B) insurance upon all of the Purchased Assets
and with respect to the conduct of the Business in full force and effect,
comparable in amount, scope, and coverage to that in effect on the date of this
Agreement, and apply all insurance proceeds from coverage of the Purchased
Assets to restore such Purchased Assets or otherwise hold such proceeds for the
Buyer's account, and (C) all Permits in full force and effect; and
(iii) conduct their respective advertising activities in a manner which
is not materially inconsistent with the Company's advertising budget in effect
as of the date of this Agreement.
(b) Except in connection with the Mergers and the other transactions
contemplated by the Merger Agreement, from the date of this Agreement until the
Closing Date, neither the Company nor any of its Subsidiaries shall take any of
the following actions, to the extent that any such action relates to the
Purchased Assets, the Assumed Liabilities or the Business:
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(i) subject any of the Purchased Assets to any further material
Encumbrance, other than Permitted Encumbrances and other than in the ordinary
course of business, consistent with past practice;
(ii) transfer, sell or otherwise convey any part of the Purchased
Assets or make any material acquisition of assets which would become part of the
Purchased Assets, except in the ordinary course of business, consistent with
past practice;
(iii) make any material Tax election or settle or compromise any
material Tax liability without the Buyer's prior written approval, except in the
ordinary course of business consistent with past practice (including, without
limitation, with respect to the Transferred Subsidiaries);
(iv) grant, convey or sell any option or right to purchase or lease any
of the Purchased Assets, except in the ordinary course of business, consistent
with past practice;
(v) pay or promise to pay, any bonus, profit-sharing or special
compensation to the Available Employees or make or promise to make any increase
in the compensation, severance or other benefits payable or to become payable to
any of such employees, except (A) as required by applicable Laws, (B) to satisfy
obligations under the terms of any agreement or Compensation and Benefit Plan or
International Compensation and Benefit Plan in effect as of the date hereof, (C)
for increases in compensation that are made in the ordinary course of business
consistent with past practice (which shall include normal periodic performance
reviews and related compensation and benefit increases) and as set forth on
Section 8.1(b)(v) of the Disclosure Letter, (D) in respect of Available
Employees covered by collective bargaining agreements, as would be permitted
under Section 8.1(b)(vii), and (E) for employment arrangements for or grants of
awards to, newly hired employees in the ordinary course of business consistent
with past practice, and who are hired in accordance with clause (viii) below and
(F) as set forth on Section 8.1(b)(v) of the Disclosure Letter;
(vi) except in the ordinary course of business consistent with past
practice or as required by applicable Laws, enter into or terminate any material
Contract, or amend, modify or make any change in, or waive any material benefit
of, any of its material Contracts;
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(vii) enter into any collective bargaining agreements covering
employees of the Business, except for the contemplated actions described in
Section 8.1(b)(vii) of the Disclosure Letter or as required by applicable Laws;
(viii) involuntarily separate from employment with the Company any
employee of the Business without due cause or hire, without the prior written
consent of Buyer which shall not be unreasonably withheld, any employee who
would become an Available Employee and who would be entitled to an annual base
salary greater than $100,000;
(ix) split, combine or reclassify any of the capital stock of the
Transferred Subsidiaries or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of the
capital stock of the Transferred Subsidiaries;
(x) with respect to the Business or Purchased Assets, incur any
indebtedness for borrowed money or guarantee any such indebtedness of another
Person, issue or sell any debt securities or warrants or other rights to acquire
any debt securities, or guarantee any debt securities of another Person, except
for the endorsement of checks in the ordinary course of business and the
extension of credit in the ordinary course of business, or make any loans,
advances or capital contributions to, or investments in, any other Person, other
than (A) to any Transferred Subsidiary or (B) advances to employees in the
ordinary course of business consistent with past practice;
(xi) repurchase, redeem or otherwise acquire any shares of capital
stock or other securities of, or other ownership interests in, any of the
Transferred Subsidiaries;
(xii) issue, deliver or sell any shares of capital stock of any of the
Transferred Subsidiaries, or any securities convertible into or exercisable or
exchangeable for shares of capital stock of any of the Transferred Subsidiaries,
or any rights, warrants or options to acquire any shares of common stock of any
of the Transferred Subsidiaries, other than (A) issuances pursuant to stock-
based awards or options that are outstanding on the date hereof or are granted
in accordance with the following clause (B), and (B) additional options or
stock-based awards to acquire shares of capital stock of any of the Transferred
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Subsidiaries required to be granted under the terms of stock plans as in effect
on the date hereof;
(xiii) amend the certificate of incorporation or bylaws or other
comparable organizational documents or amend any material terms of the
outstanding securities of any of the Transferred Subsidiaries;
(xiv) except for the items currently contracted for by the Company and
the items contemplated by the Company's most recent capital expenditure budget
previously provided to Buyer, make or agree to make any new capital expenditure
or expenditures other than expenditures which, individually, are in excess of
$500,000 or, in the aggregate, are in excess of $2,500,000, with respect to any
of the Transferred Subsidiaries;
(xv) permit any material insurance policy as a beneficiary with respect
to the Business or Purchased Assets or loss payable payee to be canceled or
terminated;
(xvi) incur or issue any indebtedness or guaran tee that would
constitute an Assumed Liability or issue or sell any debt securities or warrants
or other rights to acquire any debt securities that would constitute Assumed
Liabilities, except, in any such case, in the ordinary course of business, or
make any loans, advances or capital contributions to, or investments in, any
other Person that would constitute Purchased Assets, other than (A) to any
Transferred Subsidiary, or (B) advances to employees in the ordinary course of
business consistent with past practice;
(xvii) adopt any change, other than in the ordinary course of business
consistent with past practice or as required by the SEC, GAAP or by Law, in its
accounting policies, procedures or practices;
(xviii) settle, pay, discharge or satisfy any material Claim pending
against the Company or any of its Subsidiaries relating to the Purchased Assets
or the Business, except in the ordinary course of business;
(xix) with respect to each of the Transferred Subsidiaries, (A) declare
or pay any dividends or other distributions of any sort in respect of its
capital stock or similar payments to the direct or indirect holders of its
capital stock, or (B) settle, pay, discharge or satisfy any
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indebtedness (including intercompany accounts) except as expressly contemplated
by Section 8.8 hereof and except for payments on third-party indebtedness not to
exceed $1,658,347 in the aggregate, in each case except with respect to
Xxxxxx-Xxxxxx Inc. in order to cause the aggregate value of cash, cash
equivalents and short-term investments held by Xxxxxx-Xxxxxx Inc. as of the
Closing Date to equal the Xxxxxx-Xxxxxx Retained Cash Amount;
(xx) engage in any practice or promotion materially inconsistent with
the Company's past practices that is designed to materially increase trade
inventories.
(xxi) authorize or enter into an agreement to do any of the foregoing.
(c) Except as otherwise described in Section 8.1 and Section 8.7(c),
nothing in this Agreement shall be construed or interpreted to prevent the
Company or any Subsidiary from (i) paying or making regular, special or
extraordinary dividends or other distributions consisting of cash, cash
equivalents or short term investments held by any Persons other than the
Transferred Subsidiaries (not including Xxxxxx-Xxxxxx Inc. pursuant to Section
8.1(b)(xix)) and with respect to Xxxxxx-Xxxxxx Inc. only in respect of cash,
cash equivalents and short term investments in excess of the Xxxxxx-Xxxxxx
Retained Cash Amount or; (ii) making, accepting or settling intercompany
advances to, from or with one another; (iii) subject to clause (i) above,
causing any Subsidiary to pay or distribute to the Company all cash, money
market instruments, bank deposits, certificates of deposit, other cash
equivalents, marketable securities and other investment securities then owned or
held by such Subsidiary; (iv) causing any Subsidiary which owns or holds any
Excluded Assets to transfer or otherwise convey such assets to the Company or
its nominee prior to the Closing by means of a dividend, distribution in kind or
other transfer without consideration; (v) engaging in any other transaction
incident to the normal cash management procedures of the Company and its
Subsidiaries, including, without limitation, short-term investments in bank
deposits, money market instruments, time deposits, certificates of deposit and
bankers' acceptances and borrowings for working capital purposes and purposes of
providing additional funds to Subsidiaries made, in each case, in the ordinary
course of business, consistent with past practice; or (vi) entering
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into the Merger Agreement or complying with the terms thereof.
8.2 Access. (a) Upon reasonable notice, and except as may otherwise be
required by applicable Laws, the Company shall (and the Company shall cause its
Subsidiaries to) afford Buyer's officers, employees, counsel, accountants and
other authorized representatives (including representatives of entities
providing or arranging financing for the Buyer) ("Representatives") reasonable
access, during normal business hours throughout the period prior to Closing, to
their respective properties, books, Contracts and records that relate primarily
to the Business, the Purchased Assets or the Assumed Liabilities and, during
such period, the Company shall (and shall cause its Subsidiaries to) furnish
promptly to Buyer all such information and reasonable access to the Company's
employees, in each case to the extent related to the Business, the Purchased
Assets or the Assumed Liabilities, as Buyer or its Representatives may
reasonably request; provided that no investigation pursuant to this Section
shall affect or be deemed to modify any representation or warranty made by the
Company; provided, further, that the foregoing shall not require the Company to
furnish Buyer with documents or information concerning its toothpaste/tooth
polish or antiperspirant/deodorant businesses which the Company reasonably
determines to have competitive significance; and provided, further, that the
foregoing shall not require the Company to permit any inspection, or to disclose
any information, which in the reasonable judgment of the Company, would result
in the disclosure of any trade secrets of third parties or violate any
obligation of the Company with respect to confidentiality, provided that the
Company shall have used commercially reasonable efforts to obtain the consent of
such third party to such inspection or disclosure. All requests for information
made pursuant to this Section shall be directed to an executive officer of the
Company or such Person as may be designated by any such officer. All such
information shall be governed by the terms of the Confiden tiality Agreements.
(b) Within 14 days following the date of this Agreement, the Company
and Buyer shall establish a Steering Committee comprised of at least one senior
executive of Buyer and one senior executive of the Company (the "Steering
Committee"). During the period prior to the Closing, the Parties shall cause
members of the Steering Committee to
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discuss in good faith the development of reasonable plans, protocols and
arrangements designed to facilitate (i) the rapid integration of the Company's
information technology systems immediately following the Closing and (ii) the
separation of the Company's accounting records, inventories, receivables and
bank accounts as between the Business and the Company's other businesses. The
plans, protocols and arrangements with respect to information technology matters
shall address, among other things, the installation by Buyer of hardware in the
Company's facilities, the training of Company employees and means of
facilitating Buyer's design of compatible information technology systems, the
provision to Buyer by the Company of sample data files prior to the Closing and
the transfer of data files to Buyer's system following the Closing. The Company
will cooperate with Buyer and assist Buyer in effecting the actions and
initiatives set forth in the plans, protocols and arrangements developed by the
Steering Committee; provided, however, that this Section 8.2(b) and the plans,
protocols and arrangements developed by the Steering Committee shall not require
the Company to incur out-of-pocket expenses, require Company personnel to devote
significant amounts of time to integration activities, require the Company to
provide sales, production, operations or business data to Buyer, or require the
Company to suffer a meaningful disruption of its operations.
8.3 Stockholder Approval. (i) Subject to fiduciary obligations under
applicable Laws, the Board of Directors of the Company shall recommend the
approval of the Purchase and the Transactions to holders of Company Shares and
(ii) the Company will take, in accordance with applicable Laws and its
certificate of incorporation and bylaws, all action necessary to convene a
meeting of the stockholders to vote on the Mergers and the Purchase.
8.4 Proxy Statement. The Company shall prepare and file with the SEC a
proxy or information statement with respect to the solicitation of consents or
proxies relating to the Mergers and the Purchase (the "Proxy Statement") as
promptly as practicable and promptly thereafter mail the Proxy Statement to the
holders of Company Shares. Buyer and the Company each agree, as to itself and
its Subsidiaries, that none of the information supplied or to be supplied by it
or its Subsidiaries for inclusion or incorporation by reference in the Proxy
Statement and any amendment or supplement thereto will, at the date of mailing
to
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stockholders and at the time of the action constituting the Company Requisite
Vote, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Notwithstanding the foregoing, no representation is made by
Buyer or its Subsidiaries with respect to statements made or incorporated by
reference by the Company in the Proxy Statement based on written information
supplied by the Company or its Subsidiaries.
8.5 Filings; Other Actions; Notification. (a) The Company and Buyer
shall cooperate with each other and shall use (and shall cause their respective
Subsidiaries to use) their respective reasonable best efforts to take or cause
to be taken all actions, and do or cause to be done all things, necessary,
proper or advisable on its part under this Agreement and applicable Laws to as
promptly as practicable consummate and make effective the Transactions,
including preparing and filing as promptly as practicable all documentation to
effect all necessary notices, reports and other filings and to obtain as
promptly as practicable all Permits necessary or advisable to be obtained from
any third party and/or any Governmental Entity in order to consummate the
Transactions. Whenever this Agreement requires the Company to take any action,
such requirement shall be deemed to include an undertaking on the part of the
Company to cause each of its relevant Subsidiaries to take such action and a
guarantee of the performance thereof. Subject to applicable Laws and the terms
of any relevant agreements with third parties relating to the exchange of
information, Buyer and the Company shall have the right to review in advance,
and to the extent practicable each will consult the other on, all the
information relating to Buyer or the Company, as the case may be, and any of
their respective Subsidiaries, that appears in any filing made with, or written
materials submitted to, any third party and/or any Governmental Entity in
connection with obtaining the Permits required to consummate the Transactions
and the Mergers. In exercising the foregoing right, each of the Company and
Buyer shall act reasonably and as promptly as practicable.
(b) The Company and Buyer each shall, upon request by the other,
furnish the other with all information concerning itself, its Subsidiaries,
directors, officers and
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stockholders and such other matters as may be reasonably necessary or advisable
in connection with the Proxy Statement or any other statement, filing, notice
or application made by or on behalf of Buyer, the Company or any of their
respective Subsidiaries to any third party and/or any Governmental Entity in
connection with obtaining the Permits required to consummate the Transactions
and the Mergers.
(c) Subject to applicable Laws and the terms of any relevant agreements
with third parties, the Company and Buyer each shall keep the other apprised of
the status of matters relating to completion of the Transactions and the
Mergers, including promptly furnishing the other with copies of notices or other
communications received by Buyer or the Company, as the case may be, or any of
its Subsidiaries, from any third party and/or any Governmental Entity with
respect to the Transactions and the Mergers (including obtaining the Permits
required to consummate the Transactions); provided that in respect of any
communication to or from (or meeting with) any Governmental Entities relating to
the Transactions and the Mergers or obtaining such Permits, each Party shall use
its reasonable best efforts to afford the other with advance notice of, and a
meaningful opportunity to participate in, any such communications, including,
without limitation, a right to attend, with advisors present, any meetings
(telephonic or in person) with such Governmental Entities.
(d) Without limiting the generality of the undertakings pursuant to
this Section 8.5, the Company (in the case of clauses (i) and (iii)) and Buyer
(in all cases set forth below) agree to take or cause to be taken the following
actions: (i) provide promptly to any and all federal, state, local or foreign
courts or Government Antitrust Entities information and documents requested by
any Government Antitrust Entity or necessary, proper or advisable to permit
consummation of the Transactions; (ii) the proffer by Buyer of its willingness
to sell or otherwise dispose of, or hold separate and agree to sell or otherwise
dispose of, and the sale of, such assets, categories of assets or businesses of
the Company or Buyer or either's respective Subsidiaries (and to enter into
agreements with the relevant Government Antitrust Entity giving effect thereto)
no later than 90 days from the date of this Agreement if such action should be
reasonably necessary or advisable to avoid the commencement of a proceeding to
delay, restrain, enjoin or otherwise prohibit consummation of the transactions
contem-
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plated by this Agreement by any Government Antitrust Entity; and (iii) take
promptly, in the event that any Order is entered or becomes reasonably
foreseeable to be entered in any proceeding that would make consummation of the
Transactions unlawful or that would prevent or delay consummation of the
Transactions, any and all steps consistent with their "reasonable best efforts"
obligations (including the appeal thereof, the posting of a bond or the taking
of the steps contemplated by clause (ii) of this paragraph) necessary to vacate,
modify or suspend such Order so as to permit such consummation on a schedule as
close as possible to that contemplated by this Agreement.
(e) Without limiting the generality of the undertakings pursuant to
this Section 8.5, the Company agrees to provide, and shall cause its
Subsidiaries and shall use its reasonable best efforts to cause its and their
respective officers, employees and advisors, including KPMG LLP, to provide,
reasonable assistance to Buyer in connection with the completion of the
financings contemplated in the Financing Arrangements to be consummated
contemporaneously with or at or after the Closing in respect of the
Transactions.
(f) Without limiting the generality of the undertakings pursuant to
this Section 8.5, Buyer agrees to use its reasonable best efforts to (i) enter
into definitive documentation with respect to the financings contemplated by the
Financing Arrangements on substantially the same terms reflected in the
Financing Arrangements, (ii) negotiate a substantially complete form (subject to
customary review and comment by the banks in the syndicate group) of definitive
agreements with respect to the senior credit facilities contemplated thereby
prior to the mailing of the Proxy Statement (although signing may be delayed
until a later date), and (iii) to satisfy all conditions applicable to Buyer in
such definitive documentation. Buyer will keep the Company informed on a regular
ongoing basis of the status of the efforts to obtain such financings and will
use its reasonable best efforts to (i) provide the Company and its advisors, on
a current basis, drafts and final versions of the definitive documentation
related to the Financing Arrangements, with an opportunity to provide comments
to Buyer thereon and (ii) assure that any conditions to funding the Financing
Arrangements relating to loan syndication are satisfied at or prior to the time
that all other conditions to the Closing are expected to be satisfied. In the
event
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any portion of the financings contemplated by the Arrangements becomes
unavailable in the manner or from the sources originally contemplated, Buyer
will use its reasonable best efforts to obtain any such portion from alternative
sources on substantially comparable terms, if available, or if not substantially
comparable, on terms and conditions satisfactory to Buyer in its sole
discretion.
8.6 Equitable Assignment. Notwithstanding anything to the contrary
contained in this Agreement, to the extent that the sale, assignment, transfer,
conveyance or delivery or attempted sale, assignment, transfer, conveyance or
delivery to Buyer, as contemplated hereunder, of any Purchased Assets is
prohibited by any applicable Laws or would require any governmental or third
party Permits, including the Permits listed in Section 6.3 of the Disclosure
Letter, and such Permits shall not have been obtained prior to the Closing (such
Permits, collectively, "Delayed Consents"), this Agreement shall not constitute
a sale, assignment, transfer, conveyance or delivery, or any attempted sale,
assignment, transfer, conveyance or delivery, thereof. Following the Closing the
Parties shall use commercially reasonable efforts and shall cooperate with each
other, to obtain promptly the Delayed Consents; provided that all reasonable
out-of-pocket expenses of such cooperation and related actions shall be paid by
Buyer. Pending receipt of the Delayed Consents or if such Delayed Consents are
not obtained, the Parties shall cooperate with each other in any reasonable and
lawful arrangements, effectively transferring to Buyer from and after the
Closing, the rights and benefits of, and entitlements to exercise the Company's
rights under, and effectively causing the Buyer to assume all Assumed
Liabilities with respect to, such Purchased Assets and operations of the
Business as if such assets and operations had been transferred by the Company to
Buyer at Closing and any Liabilities associated with the arrangements
specifically established by Buyer and the Company pursuant to this Section 8.6.
Once any Delayed Consent is obtained, the Company shall assign, transfer, convey
and deliver, or cause to be assigned, transferred, conveyed and delivered, such
Purchased Assets and operations of the Business to Buyer at Buyer's expense with
Buyer responsible for all reasonable out-of-pocket costs associated with the
transfer of the relevant Purchased Assets and operations and any other
Liabilities associated with such transfer and the ownership or operation of such
Purchased Assets that would have comprised Assumed
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Liabilities under this Agreement had such assets and operations been transferred
by the Company to Buyer at Closing; provided that no additional consideration
shall be paid by Buyer to the Company for such relevant Purchased Assets.
8.7 Complete Financial Statements. (a) The Company shall use its
reasonable best efforts to deliver to Buyer (i) audited combined statements of
earnings and statements of cash flows for the Purchased Assets and the Assumed
Liabilities for the years ended March 31, 2000 and Xxxxx 00, 0000, (xx) an
audited combined balance sheet for the Purchased Assets and the Assumed
Liabilities as of Xxxxx 00, 0000, (xxx) unaudited combined statements of
earnings and statements of cash flows for the Purchased Assets and the Assumed
Liabilities for the nine months ended December 31, 2000, (iv) an unaudited
combined balance sheet for the Purchased Assets and the Assumed Liabilities as
of December 31, 2000, (v) an audited combined statement of earnings and an
audited combined statement of cashflows for the Purchased Assets and the Assumed
Liabilities for the year ended March 31, 2001, in each case together with
reconciliations against the Purchased Assets and Assumed Liabilities excluding
the Segregated Assets and Liabilities, and an audited combined balance sheet for
the Purchased Assets and the Assumed Liabilities as of March 31, 2001, (vi) in
the event that the Closing has not occurred by August 15, 2001, interim
unaudited combined statements of earnings and cashflows for the Purchased Assets
and Assumed Liabilities for the three-month periods ended June 30, 2000 and June
30, 2001 and interim unaudited combined balance sheets for the Purchased Assets
and Assumed Liabilities for the three months ended June 30, 2000 and June 30,
2001, and (vii) in the event that the Closing has not occurred by November 15,
2001, interim unaudited combined statements of earnings and cashflows for the
Purchased Assets and the Assumed Liabilities for the six-month periods ended
September 30, 2000 and September 30, 2001 and unaudited combined balance sheets
for the Purchased Assets and Assumed Liabilities for the six months ended
September 30, 2000 and September 30, 2001, in each case prepared in accordance
with GAAP (including GAAP requirements with respect to notes) and in compliance
with requirements of Regulation S-X. The Company shall use its reasonable best
efforts to deliver to Buyer the financial statements referred to in clauses (i)
through (v) of the previous sentence (the "May Deliverables") by May 25, 2001.
The Company shall cause its
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auditors to meet with Buyer and permit Buyer to review the auditors' workpapers
concerning the May Deliverables, but Buyer shall not be permitted to copy such
workpapers. The Company shall use its reasonable best efforts to deliver to
Buyer (i) audited statements of earnings and statements of cash flows for the
Purchased Assets and the Assumed Liabilities which do not include the "Arrid" or
"Lady's Choice" product lines or the Xxxxxxx Xxx business for the years ended
March 31, 2001, March 31, 2000 and Xxxxx 00, 0000, (xx) audited balance sheets
for the Business which do not include the "Arrid" or "Lady's Choice" product
lines or the Xxxxxxx Xxx business as of March 31, 2001 and Xxxxx 00, 0000, (xxx)
in the event that the Closing has not occurred by August 15, 2001, interim
unaudited statements of earnings and cashflows for the Purchased Assets and the
Assumed Liabilities which do not include the "Arrid" or "Lady's Choice" product
lines or the Xxxxxxx Xxx business for the three-month periods ended June 30,
2000 and June 30, 2001 and interim unaudited balance sheets for the Purchased
Assets and Assumed Liabilities which do not include the "Arrid" or "Lady's
Choice" product lines or the Xxxxxxx Xxx business as of June 30, 2000 and June
30, 2001, and (iv) in the event that the Closing has not occurred by November
15, 2001, interim unaudited statements of earnings and cashflows for the
Purchased Assets and the Assumed Liabilities which do not include the "Arrid" or
"Lady's Choice" product lines or the Xxxxxxx Xxx business for the six-month
periods ended September 30, 2000 and September 30, 2001 and interim unaudited
balance sheets for the Purchased Assets and Assumed Liabilities which do not
include the "Arrid" or "Lady's Choice" product lines or the Xxxxxxx Xxx business
as of September 30, 2000 and September 30, 2001, in each case prepared in
accordance with GAAP (including GAAP requirements with respect to notes) and in
compliance with requirements of Regulation S-X. The Company shall use its
reasonable best efforts to deliver to Buyer the financial statements referred to
in clauses (i) and (ii) of the previous sentence by June 30, 2001. The Company
shall use its reasonable best efforts to deliver to Buyer (i) audited statements
of earnings and statements of cash flows for the "Arrid" and "Lady's Choice"
product lines and the Xxxxxxx Xxx business for the years ended March 31, 2001,
March 31, 2000 and Xxxxx 00, 0000, (xx) audited balance sheets for the "Arrid"
and "Lady's Choice" product lines and the Xxxxxxx Xxx business as of March 31,
2001 and Xxxxx 00, 0000, (xxx) in the event that the Closing has not occurred by
August 15, 2001, interim unaudited statements of earnings and cashflows
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for the "Arrid" and "Lady's Choice" product lines and the Xxxxxxx Xxx business
for the three-month periods ended June 30, 2000 and June 30, 2001 and interim
unaudited balance sheets for the "Arrid" and "Lady's Choice" product lines and
the Xxxxxxx Xxx business as of June 30, 2000 and June 30, 2001, and (iv) in the
event that the Closing has not occurred by November 15, 2001, interim unaudited
statements of earnings and cashflows for the "Arrid" and "Lady's Choice" product
lines and the Xxxxxxx Xxx business for the six-month periods ended September 30,
2000 and September 30, 2001 and interim unaudited balance sheets for the "Arrid"
and "Lady's Choice" product lines and the Xxxxxxx Xxx business as of September
30, 2000 and September 30, 2001, in each case prepared in accordance with GAAP
(including GAAP requirements with respect to notes) and in compliance with
requirements of Regulation S-X. The Company shall use its reasonable best
efforts to deliver to Buyer the financial statements referred to in clauses (i)
and (ii) of the previous sentence by June 30, 2001.
(b) From the date hereof until the Closing Date, the Company shall use
its reasonable best efforts to deliver to Buyer, promptly following the internal
circulation thereof, (i) such monthly management reporting packages for the
Company's Xxxxxx Products, Xxxxxxx Xxx and International divisions as the
Company prepares in the ordinary course of business, and (ii) such Friday sales
reports for the Company's Xxxxxx Products and Xxxxxxx Xxx divisions as the
Company prepares in the ordinary course of business.
(c) The Company shall cause the cash held by the Transferred
Subsidiaries as of the Closing (other than the Xxxxxx-Xxxxxx Retained Cash
Amount) to be held by the Transferred Subsidiaries (other than Xxxxxx-Xxxxxx
Inc.) in ratable portions not materially inconsistent with their respective
ratable portions of the cash held by the Transferred Subsidiaries (other than
Xxxxxx-Xxxxxx Inc.) as reflected in the Audited Financial Statements.
8.8 Intercompany Accounts. Intercompany accounts between the Company or
any of its Subsidiaries, on the one hand and any Transferred Subsidiary, on the
other hand ("Intercompany Accounts") in respect of goods sold in the ordinary
course of business shall be paid in full 30 days after Closing and all other
Intercompany Accounts will be canceled without payment prior to the Closing.
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8.9 Publicity. The initial press release concerning the Transactions
shall be a joint press release approved in advance by the Company and Buyer and
thereafter the Company and Buyer each shall consult with each other prior to
issuing any press releases or otherwise making public announcements with respect
to the Transactions and prior to making any filings with any third party and/or
any Governmental Entity (including any national securities exchange or
interdealer quotation service) with respect thereto, except as may be required
by applicable Laws or by obligations pursuant to any listing agreement with or
rules of any national securities exchange or interdealer quotation service on
which the securities of the Company or Buyer or its Affiliates are listed or
quoted.
8.10 No Solicitation and No Hiring. For a period of 24 months following
the Closing Date, the Company and its Affiliates (excluding MedPointe Capital
Partners, L.L.C., Cypress Associates II, LLC and TC Group, LLC and their
respective Affiliates that are not otherwise Affiliates of the Company) shall
not directly or indirectly solicit for employment or hire as an employee or
consultant, any of the Transferred Employees or other employees of Buyer or its
Affiliates engaged in the Business unless such employee's employment is earlier
terminated by Buyer. For a period of 24 months following the Closing Date, Buyer
and its Affiliates (excluding Financial Bidder and its Affiliates that are not
otherwise Affiliates of the Company) shall not directly or indirectly solicit
for employment or hire as an employee or consultant, any employee (other than an
Transferred Employee) who works for the Company or its Affiliates unless such
employee's employment is earlier terminated by the Company. Notwithstanding the
foregoing, this Section 8.10 shall not prevent either Buyer or Company (or any
of their respective Affiliates or any Person acting on their behalf) from
conducting general searches for employees by use of advertisements or the media
that are not directly targeted at the employees of the other Party.
8.11 Acquisition Proposals. (a) The Company agrees that neither it nor
any Subsidiary of the Company nor any of their respective officers or directors
shall, and that it shall direct and cause its and such Subsidiaries' employees,
agents and representatives (including any investment banker, attorney or
accountant retained by them or any of the Company's Subsidiaries) not to,
directly or indirectly, (i) initiate, solicit, encourage or otherwise
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facilitate any inquiry or the making of any proposal or offer with respect to a
merger, reorganization, share exchange, consolidation, purchase or similar
transaction involving (A) more than 15% of the consolidated assets of the
Company primarily related to the Business (a "Business Acquisition Proposal");
(B) more than 15% of the consolidated assets of the Company primarily related to
the operations of the Company other than the Business (such operations, the
"Healthcare Business" and such a proposal, a "Healthcare Acquisition Proposal");
or (C) more than 15% of the outstanding equity securities of the Company or more
than 15% of the consolidated assets primarily related to the Business and the
consolidated assets primarily related to the Healthcare Business (a "Company
Acquisition Proposal", any Business Acquisition Proposal, Healthcare Acquisition
Proposal or Company Acquisition Proposal being referred to as an "Acquisition
Proposal"); (ii) engage in any negotiations concerning, or provide any
confidential information or data to, or have any substantive discussions with,
any Person relating to an Acquisition Proposal, or otherwise facilitate any
effort or attempt to make or implement an Acquisition Proposal (including by
entering into any letter of intent or similar document or any contract,
agreement or commitment with any Person making such an Acquisition Proposal) or
(iii) approve, endorse or recommend any Acquisition Proposal; provided, however,
that prior to the effectiveness of the Company Requisite Vote, nothing contained
in this Agreement shall prevent the Company, its directors, officers, agents or
other representatives from (A) complying with its disclosure obligations under
applicable Law; (B) providing information in response to a request therefor by a
Person who has made an unsolicited bona fide written Acquisition Proposal if the
Board of Directors receives from the Person so requesting such information an
executed confidentiality agreement on terms substantially similar to those
contained in the Confidentiality Agreements, it being understood that such
confidentiality agreement will not prohibit the making of an Acquisition
Proposal; (C) engaging in any negotiations or discussions with any Person who
has made an unsolicited bona fide written Acquisition Proposal or entering into
an agreement with such Person solely with respect to the payment by such Person
of amounts payable to Buyer pursuant to Section 11.5(b) or to Parent pursuant to
Section 8.5(b) of the Merger Agreement; (D) approving, recommending or endorsing
such an Acquisition Proposal to the stockholders of the Company (which, in the
case of a Business Acquisition
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Proposal or Company Acquisition Proposal, shall be deemed to be a withdrawal or
modification of the recommendation of this Agreement by the Board of Directors
of the Company), or (E) following the termination of the Merger Agreement
pursuant to Section 8.3(a) thereof, entering into an agreement with a Person who
has made an unsolicited bona fide written Healthcare Acquisition Proposal with
respect to such Healthcare Acquisition Proposal, if and only to the extent that,
(i) in each such case referred to in clause (B), (C), (D) or (E) above, the
Board of Directors of the Company determines in good faith (after consultation
with outside legal counsel) that failure to take such action would, in light of
such Acquisition Proposal and the terms of this Agreement, be inconsistent with
the fiduciary duties of the directors under applicable Law and (ii) (x) in the
cases referred to in clause (B) or (C) above, the Board of Directors of the
Company determines in good faith (after consultation with a financial advisor)
that taking the actions permitted pursuant to such clauses with respect to an
Acquisition Proposal could reasonably be expected to result in a Superior
Proposal, assuming such Acquisition Proposal were consummated and (y) in the
case referred to in clauses (D) or (E) above, the Board of Directors of the
Company determines in good faith (after consultation with its financial advisor)
that such Acquisition Proposal is a Superior Proposal. A Business Acquisition
Proposal is a "Superior Proposal" if (i) the transaction (or series of
transactions) pursuant to such Acquisition Proposal involves the direct or
indirect (by stock acquisition or otherwise) acquisition by a third party of all
or substantially all of the consolidated assets of the Company primarily related
to the Business and (ii) the consummation of such transaction (or series of
transactions) pursuant to such Acquisition Proposal, together with the
consummation of the Mergers pursuant to the Merger Agreement, will be more
favorable to the Company's stockholders from a financial point of view than the
Purchase, taken together with the Mergers and, for purposes of the determination
to be made in clause (D) or (E) above, in the good faith judgment of the Board
of Directors of the Company, such transaction is reasonably likely to be
financed by such third party. A Healthcare Acquisition Proposal is a "Superior
Proposal" if (i) the transaction (or series of transactions) pursuant to such
Acquisition Proposal involves the direct or indirect (by merger, stock
acquisition or otherwise) acquisition by a third party of the Healthcare
Business and (ii) the consummation of such transaction (or series of
transactions)
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pursuant to such Acquisition Proposal, together with the consummation of the
Purchase, will be more favorable to the Company's stockholders from a financial
point of view than the Mergers, taken together with the Purchase and such other
transactions and, for purposes of the determination to be made in clause (D) or
(E) above, in the good faith judgment of the Board of Directors of the Company,
such transaction is reasonably likely to be financed by such third party. A
Company Acquisition Proposal is a "Superior Proposal" if (i) the transaction (or
series of transactions) pursuant to such Acquisition Proposal involves a third
party unaffiliated with CPI acquiring, directly or indirectly, not less than a
majority of the outstanding Company Shares (by merger, stock acquisition or
otherwise) or acquiring directly or indirectly, all or substantially all of the
consolidated assets of the Company, (ii) such transaction (or series of
transactions) is reasonably likely to be consummated and (iii) the consummation
of such transaction (or series of transactions) pursuant to such Acquisition
Proposal will be more favorable to the Company's stockholders from a financial
point of view than the combined effect of the Purchase and the Mergers. The
Company agrees that it will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any Person conducted
heretofore with respect to any Acquisition Proposals. The Company agrees that it
will notify Buyer immediately if any such inquiries, proposals or offers are
received by, any such information is requested from, or any such discussions or
negotiations are sought to be initiated or continued with, any of its
representatives.
(b) Buyer and its Affiliates shall not directly or indirectly (through
Affiliates or otherwise), individually or as a group, enter into any agreement
or other arrangement with any party to the Merger Agreement that would obligate
any party to the Merger Agreement to refuse or otherwise fail to cooperate with
the Company and its representatives or obligate any party to the Merger
Agreement to oppose or otherwise act to thwart the Company's efforts to (i)
negotiate with respect to a Business Acquisition Proposal or (ii) enter into a
Business Acquisition Proposal that is a Superior Proposal.
(c) In the event the Company terminates the Merger Agreement pursuant
to Section 8.3(a) thereof in order to enter into an agreement with respect to a
Healthcare Acquisition Proposal that constitutes a Superior Proposal,
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Buyer shall be required to accept (i) the acquirors of the Healthcare Business
pursuant to such agreements as replacements for Parent, CPI Merger Sub and
Company Merger Sub (the "Substitute Merger Parties") for purposes hereof and
(ii) such agreement as a replacement for the Merger Agreement (such agreement
and any related agreements, collectively, the "Substitute Merger Agreement") for
purposes hereof if such Substitute Merger Parties and Substitute Merger
Agreement would not, in the good faith judgment of Buyer (as compared with the
Merger Agreement and the agreements entered into in connection therewith),
materially and adversely affect the Buyer's rights or obligations hereunder and
under the agreements executed and delivered in connection herewith (including
the Ancillary Agreements, the Voting Agreement, the Shareholder Indemnification
Agreement and the Fund Agreement), taking into account all relevant factors,
including the terms and conditions of the Substitute Merger Agreement and the
financial position of the Substitute Merger Parties. If the Company notifies
Buyer that it intends, subject to not receiving a Section 8.11(c) Notice (as
hereinafter defined), to terminate the Merger Agreement pursuant to Section
8.3(a) thereof in order to enter into a Substitute Merger Agreement pursuant to
such Section 8.3(a) and, prior to or at the time of delivery of such notice,
provides Buyer with a draft of such Substitute Merger Agreement and such
documents and information relating to the Substitute Merger Parties and the
transactions contemplated by the proposed Substitute Merger Agreement that are
in the Company's possession or as may be reasonably obtained by the Company as
Buyer may reasonably request, Buyer will notify the Company (the "Section
8.11(c) Notice") within three Business Days of such notice (not counting the day
of receipt) following the date of receipt of such notice as to whether, in the
exercise of its good faith judgment, such Substitute Merger Agreement with the
Substitute Merger Parties would have any of the material adverse effects
described above. If Buyer does not provide a Section 8.11(c) Notice within such
three-day period, Buyer shall be deemed to accept the Substitute Merger Parties
and the Substitute Merger Agreement. For purposes of this Agreement, upon
execution and delivery by the Company and CPI of the substitute Merger
Agreement, all references herein to the "Mergers" and the "Merger Agreement"
shall become references to such Substitute Merger Agreement. It is further
agreed that the giving by the Company to Parent of the notice that it intends to
terminate this Agreement pursuant to Section 11.3(a) in order to enter
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into a Substitute Asset Purchase Agreement and the drafts, documents and
information contemplated by Section 6.2(b) of the Merger Agreement, shall not,
in and of itself, provide Buyer a right to terminate this Agreement pursuant to
Section 11.4.
8.12 Timing of Closing. (a) Buyer will cooperate with the Company in
causing the Closing contemplated by the Merger Agreement and the Closing
contemplated by this Agreement to occur and be effected on the same date and the
Closing contemplated by this Agreement to immediately precede the Closing
contemplated by the Merger Agreement; it being understood and agreed that the
closing contemplated by the Merger Agreement and the Closing will not be
consummated until all conditions to closing in the Merger Agreement and this
Agreement and the conditions to the extension of financing by all respective
financing sources (debt and equity) have been satisfied or waived and the
parties to this Agreement and the Merger Agreement and their respective
financing sources (debt and equity) have entered into an appropriate agreement
reasonably satisfactory to the Company (the "Closing Agreement") to such effect.
(b) Without the prior written consent of Buyer, which shall not be
unreasonably withheld, delayed or conditioned, the Company shall not amend or
modify the Merger Agreement in a manner that materially and adversely affects
Buyer's rights and obligations hereunder. Subject to the foregoing, the Company
shall deliver promptly to Buyer copies of all amendments or modifications to the
Merger Agreement.
(c) Without the prior written consent of the Company, which shall not
be unreasonably withheld, delayed or conditioned, Strategic Buyer and Buyer
shall not amend or modify the Product Line Purchase Agreement in a manner that
would materially and adversely affect the Company. Without the prior written
consent of Buyer, which shall not be unreasonably withheld, delayed or
conditioned, the Company will not terminate the Merger Agreement pursuant to
Section 8.1 thereof. Subject to the foregoing, Buyer shall deliver promptly to
the Company copies of all amendments or modifications to the Product Line
Purchase Agreement. The Company and Buyer shall cooperate in causing the Closing
contemplated by the Product Line Purchase Agreement to be effected in accordance
therewith.
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8.13 Insurance. The Company will use its reasonable best efforts to
ensure that, at or prior to Closing, the Buyer is named as an additional insured
under each of the Company's insurance policies in effect on the date of this
Agreement.
8.14 Sofibel S.A.R.L. Conversion. Subject to and in accordance with the
applicable requirements of French Law, the Company shall use its reasonable best
efforts to convert (by merger or otherwise) its Subsidiary Sofibel S.A.R.L.
prior to Closing from an S.A.R.L. entity into an S.A.S. or S.A. entity, at
Buyer's request, exercisable once. If such conversion has been effected, Buyer
shall not convert Sofibel S.A.S. or S.A., as the case may be, again into an
S.A.R.L. entity for a period of five years following the Closing. All references
in this Agreement, the Disclosure Letter and any Ancillary Agreements to Sofibel
S.A.R.L. shall be deemed to be references to Sofibel S.A.S or S.A., as the case
may be, following the effectiveness of such conversion.
8.15 Xxxxxx-Xxxxxx Taxes. Buyer agrees to cause Xxxxxx-Xxxxxx to pay to
the Company any amounts actually withheld, deducted or otherwise collected by
Xxxxxx-Xxxxxx with respect to any distribution or other payment made with
respect to shares of Xxxxxx-Xxxxxx stock in excess of any Taxes required to be
so withheld, deducted or otherwise collected.
ARTICLE IX
Employees and Benefits
9.1 Employees and Service Crediting.
(a) Offer of Employment with Buyer. (i) The parties hereto intend that
there shall be continuity of employment with respect to all Available Employees
who become Transferred Employees. Except where applicable Laws provide for an
automatic transfer of employees upon the transfer of a business as a going
concern, Buyer shall make an offer of employment effective as of the Closing to
each Available Employee (including those on vacation, and Leave Recipients (as
defined in Section 9.1(c)) on the Closing Date which offer, except as provided
below, shall include a base salary or wages not less than as in effect with
respect
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to each such Employee at Closing and shall not require that such Employee
relocate to a work location more than 45 miles from such Employee's current work
location. In addition to the foregoing base salary, wage and location terms,
except as provided below such offer shall provide for substantially comparable
total benefits and compensation in the aggregate for the group of Employees
taken as a whole (including short-term bonus opportunities, but excluding equity
compensation and post-retirement health and welfare except for Employees with
Executive Employment Agreements and Change in Control Agreements listed on
Section 6.7(a) of the Disclosure Letter and also excluding the Executive
Automobile Policy described in Section 8.1(b)(v) of the Disclosure Letter)) to
such total benefits and compensation provided by the Company in the aggregate
for all Available Employees taken as a whole as of the Closing. Each offer shall
also contain the covenant of Buyer set forth in subsections 9.1(e), 9.1(f),
9.1(h)(i)), 9.1(i)(ii) and (iii), and 9.1(j) below. The requirement of
comparability of benefits shall not apply to Employees covered by a collective
bargaining agreement. Prior to the Closing Date, the Company shall cooperate
with and use commercially reasonable efforts to assist Buyer in its efforts to
secure reasonably satisfactory employment arrangements with the Available
Employees. Each Available Employee who accepts an offer of employment with Buyer
shall become and shall be referred to herein as a "Transferred Employee."
(ii) Notwithstanding anything to the contrary herein, Buyer shall also
have the ability to make employment offers which are not "comparable" to their
current terms and conditions to up to thirty Available Employees, which offer
shall describe the provisions of this Section 9(a)(ii), in which case if the
Available Employee rejects such offer (but only if he or she rejects such
offer), Buyer shall be responsible for such Employee's severance pay as
specified in the Change in Control Severance Plan set forth in Section 9.1(d) of
the Disclosure Letter (the "CIC Severance Plan") (or other applicable severance
arrangement for Employees not covered by the CIC Severance Plan), and Buyer
shall indemnify the Company for all such severance obligations with respect to
such Available Employees. In the event an Available Employee accepts an offer
with Buyer with a Base Salary (as defined in the CIC Severance Plan) less than
such employee's Base Salary at the Closing Date or location more than 45 miles
from such Employee's principal place of employment at the time of such offer, if
consented
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to by such Employee in writing upon accepting such offer such Employee shall not
be entitled to severance pay by reason of such noncomparable employment, however
such new Base Salary or location will become the benchmark Base Salary or
location to determine eligibility for severance for Good Reason (as defined in
the CIC Severance Plan) thereafter, but shall not affect the calculation of the
amount of severance payments under any circumstances, as provided in the CIC
Severance Plan. In all other respects, such group of Available Employees shall
be treated as other Available Employees under this Section 9.1. Nothing herein
shall be construed as a guarantee of any length of employment or shall restrict
Buyer's ability to terminate any Transferred Employee, subject to any applicable
Laws, employment agreements or collective bargaining agreements.
(b) Adjustment of Available Employees for Subsequently Hired Employees.
An employee hired by the Company after the date hereof who would have been an
Available Employee but for not being employed on the date hereof shall become an
Available Employee as of the date of hire. An Employee who is on the Available
Employee list who retires (under the terms of the applicable qualified defined
benefit pension plan) or dies prior to the Closing Date shall be removed from
the Available Employee list. Approximately five Business Days prior to Closing,
the Company shall furnish to Buyer an updated list of Available Employees as of
such date.
(c) Special Provisions for Leave Recipients. (i) Any offer of
employment extended pursuant to Section 9.1(a) to an Available Employee who is
not actively at work on the date of such offer as a result of short-term
disability leave, or other approved personal leave (including, without
limitation, military leave with re-employment rights under federal law, leave
with right of re-employment under any collective bargaining agreement and leave
under the Family Medical Leave Act of 1993), (individually, a "Leave Recipient"
and collectively the "Leave Recipients") will remain effective until such
Available Employee's termination of such short-term disability or approved leave
of absence, respectively, provided that he or she returns to active service
before the later of (A) 180 days following the Closing Date or (B) the date such
employee's re-employment rights expire under the applicable agreement or
applicable Laws. Prior to returning to active status, such Leave Recipient shall
continue to
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receive benefits, if any, to which he or she is entitled pursuant to the
applicable agreement or under the Compensation and Benefit Plans maintained by
the Company; provided that to the extent compensation or benefits paid or
provided to such a Leave Recipient under the Company's Compensation and Benefit
Plans is not fully covered by the Company's insurance, Buyer shall reimburse the
Company for the dollar value of any such compensation and benefits that are not
covered.
(ii) When the Leave Recipient returns to active status pursuant to the
terms of clause (i) above and accepts Buyer's offer of employment, such Leave
Recipient shall be considered a Transferred Employee (as defined above) and the
following provisions shall apply: (A) the Leave Recipient shall cease to be
eligible for coverage and benefits under any employee benefit plans or programs
maintained by the Company (including, without limitation the Compensation and
Benefit Plans) except to the extent, if any, that such coverage and benefits are
required by the terms of the Company's plans, applicable Law or by this
subsection (c); (B) the Leave Recipient, upon becoming a Transferred Employee,
shall become eligible for coverage and benefits under all employee benefit plans
or programs maintained by Buyer under the same terms and conditions that apply
to other Transferred Employees; and (C) the Leave Recipient's period of leave
shall be treated as a period of service under the employee benefit plans and
programs of Buyer to the same extent as if the Leave Recipient had received
benefits under a similar plan or was subject to a similar policy of Buyer except
to the extent such service credit will result in duplication of benefits to the
Leave Recipient.
(iii) Any Leave Recipient who (A) was receiving short-term disability
benefits under a Compensation and Benefit Plan, (B) becomes a Transferred
Employee under Section (ii) above, and (C) terminates employment with Buyer
within the time period in the applicable company policy under circumstances
relating to the same infirmity (as defined in the applicable company policy)
which gave rise to the short-term disability that existed on the Closing Date
that would entitle such person to benefits under a Compensation and Benefit Plan
that is a long term disability plan, shall receive such benefits as are provided
under such Company plan. Any benefits under a Buyer plan shall be
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provided in accordance with, and subject to, the terms of such plan.
(d) Buyer Benefit Obligation. Buyer shall establish and maintain until
June 30, 2002 employee benefit plans, programs, policies and arrangements for
Transferred Employees which provide benefits to the Transferred Employees that,
as a group, are substantially comparable in the aggregate to those provided to
the Transferred Employees, as a group, under the applicable Compensation and
Benefit Plans in effect on the Closing Date (other than equity compensation and
post-retirement health and welfare, except for those Transferred Employees with
Executive Employment Agreements or Change in Control Agreements listed on
Section 6.7(a) of the Disclosure Letter, and also other than the Executive
Automobile Policy, described on Section 8.1(b)(v) of the Disclosure Letter);
provided, however, that the requirements of this sentence shall not apply to
Transferred Employees who are covered by a collective bargaining agreement. Such
requirement shall be applied based upon the benefits offered to Transferred
Employees generally, and shall not be applied on an employee-by-employee basis,
nor shall any lack of equity-based compensation, post-retirement health and
welfare coverage of active employees (other than those executives entitled to
benefits under the Corporate Officer Medical Expense Reimbursement Plan), or
lack of Executive Automobile Policy, be taken into account in making such
determination. Notwithstanding the above aggregation, Buyer shall accept
assignment, and assume, from the Company or its Subsidiaries all employment and
change in control agreements to which any Available Employee is a party and
Buyer shall assume the obligation to provide severance pay and benefits to
Available Employees no less favorable than the benefits provided pursuant to the
severance plan set forth in Section 9.1(d) of the Disclosure Letter (to the
extent such Employee is covered by such plan). Except as expressly provided in
Section 9.1(c) or as required by law, all Available Employees shall cease
accruing benefits under and shall cease to participate in the Compensation and
Benefit Plans as of the Closing Date.
(e) Payment of Bonuses. At the earlier of such Employee's termination
of employment (except termination for cause as defined in the CIC Severance
Plan, which termination has no bonus entitlement) or April 1, 2002, Buyer shall
pay to each Available Employee who is employed
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immediately prior to Closing, other than employees covered by a collective
bargaining agreement or employees whose employment agreement or other individual
agreement otherwise provides for such payment, a payment equal to a pro rata
portion of such employee's target bonus, if any, under the Company's annual
incentive bonus plan(s) in which such employee is a participant, for the portion
of the bonus year that has elapsed from April 1, 2001 until the Closing Date.
(f) Recognition of Service. On and after the Closing Date and for
purposes of eligibility, vesting, vacation entitlement and severance benefits
under all employee compensation and benefit plans of Buyer, each Transferred
Employee shall receive full credit from Buyer for all prior service properly
credited under the Compensation and Benefit Plans. Section 6.7(b)(1) of the
Disclosure Letter may be conclusively relied upon by Buyer in crediting service
in accordance with this Section.
(g) Compensation and Benefit Plan Assets to be Transferred to Buyer. As
soon as practicable after the Closing Date, the Company agrees to cause the
trustee of the Assumed Pension Plan to transfer to the trustee of the Buyer's
pension plan all assets with respect to the Assumed Pension Plan. As of the
Closing Date, Buyer shall assume all Liabilities with respect to the Assumed
Pension Plan. Seller shall transfer or shall cause the trustee to transfer,
effective as of the Closing Date, assets with respect to the life insurance
policies underlying the Split Dollar Agreements listed on Section 6.7(a) of the
Disclosure Letter with respect to Transferred Employees. As of the Closing Date,
Buyer shall assume all Liabilities with respect to such Split Dollar Agreements.
Except as described in subsection (h)(iii) below, no assets will be transferred
in connection with this Agreement in respect of any Compensation and Benefit
Plan other than the Assumed Pension Plan and the life insurance policies
underlying the Split Dollar Agreements listed on Section 6.7(a) of the
Disclosure Letter.
(h) Buyer Savings Plan. (i) As of the Closing Date, Buyer shall
establish and maintain a tax-qualified defined contribution plan (the "Buyer
Savings Plan"). All Transferred Employees will be eligible to participate in the
Buyer Savings Plan.
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(ii) Distributable Event. If a distribution is permissible under
Section 401(k) of the Code, as determined by the Company in its sole discretion,
the Company will permit each Transferred Employee to elect a distribution of
benefits from the applicable tax-qualified defined contribution plan maintained
by the Company (the "Company Savings Plan"). If the Company permits Transferred
Employees to elect distributions, Buyer will cause the Buyer Savings Plan to
accept a direct rollover of the portion of a Transferred Employee's distribution
which constitutes an eligible rollover distribution, including any outstanding
loans and related promissory notes.
(iii) Plan-to-Plan Transfer. If the Company determines in accordance
with the foregoing that a distribution is not permissible under Section 401(k)
of the Code, then Buyer and the Company agree to use their reasonable best
efforts to effect a plan to plan transfer of the account balances and related
Liabilities of the Transferred Employees, except to the extent the Company
elects to allow Transferred Employees to choose to retain their account balances
in the Company Savings Plans (and to the extent Transferred Employees elect to
so retain their account balances). Such a transfer (if any) shall occur on or as
soon as practicable after the Closing Date. To implement such a transfer (if
any), the Company shall direct the trustee(s) of the Company Savings Plans to
transfer to the trustee or funding agent of the Buyer Savings Plan an amount in
cash or kind (as determined by the Company with the consent of Buyer, which
shall not be unreasonably withheld) equal in value to the account balances of
the Transferred Employees covered by the Company Savings Plans as of the date of
the transfer (other than any such employees who are permitted by the Company to
elect, and who so elect, to retain such account balances in the Company Savings
Plans); provided that to the extent the account balances to be transferred
consist in whole or in part of outstanding loans, the Company shall direct the
trustee(s) of the Company Savings Plans to transfer to the trustee or funding
agent of the Buyer Savings Plan, in lieu of cash, the promissory notes and
related documents evidencing such loans. Buyer and the Company shall take such
actions as may be required to effect the assignment of such loans by the
trustee(s) of the Company Savings Plans to the trustee or funding agent of the
Buyer Savings Plan. In addition, the transfer procedure (if any) shall ensure
that all account balances of Transferred Employees remain invested, or
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receive a reasonable rate of return, throughout the transfer process. As of the
date and to the extent that assets from the Company Savings Plan are transferred
to a Buyer Savings Plan, all Liabilities related to or arising from such assets
shall be assumed by Buyer Savings Plan.
(iv) Matching Contributions. All required matching contributions with
respect to the Transferred Employees' contributions to the Company Savings Plans
that are eligible for matching and made before the Closing Date (or with respect
to compensation earned by such Transferred Employees prior to the Closing Date
but paid by the Company and its Affiliates after the Closing Date) shall be made
by the Company, without regard to any year of service or last day of Plan year
active employment requirements (and the Company Savings Plan shall be amended,
if necessary, to accomplish this result). Such matching contributions shall be
made not later than the date on which all other matching contributions are made
to the Company Savings Plans with respect to contributions made at the same time
as the Transferred Employees' contributions.
(i) Welfare Plans and Other Unfunded Plans. (i) The Company shall
retain responsibility for all medical, dental, cafeteria plan, Accidental Death
and Dismemberment, life and short- and long-term disability insurance claims,
workers compensation, and all other welfare and fringe benefit claims (x)
incurred by Employees who are not Available Employees or employees of the
Transferred Subsidiaries as of the Closing Date and (y) incurred by Available
Employees prior to the Closing Date; provided that Buyer shall assume, and shall
reimburse the Company for, 60% of any retiree medical liability incurred with
respect to any Covered Retiree. The Company shall not offer any severance,
through the Company's regular severance program or otherwise, to Available
Employees who do not become Transferred Employees, except as described in
Section 9.1(a)(ii) or as disclosed pursuant to an individual agreement in
Section 6.7(a) of the Disclosure Letter. Except as otherwise expressly provided
in this Agreement with respect to Covered Retirees, the Company shall retain
responsibility for all compensation and benefits (including, without limitation,
retiree medical), for any Available Employee who retires or dies on or before
the Closing Date. For purposes of this paragraph, a claim shall be deemed to
have been incurred when the medical or other service giving rise to the claim is
performed, except that disability
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(including workers compensation) claims shall be deemed to have been incurred on
the date the Employee becomes disabled as determined under the terms of the
applicable Compensation and Benefit Plan. Notwithstanding the foregoing but
subject to Sections 8.1(b)(viii) and 9.1(i)(i), Buyer shall be liable for
severance and termination obligations for Available Employees who quit, resign
or are otherwise terminated prior to the Closing Date, other than Available
Employees who retire (under the terms of the applicable defined benefit pension
plan) or die prior to the Closing Date, for whom such obligations shall be
retained by the Company (subject to the Buyer's assumption of liabilities with
respect to Covered Retirees as expressly provided herein). For the avoidance of
doubt, Buyer shall be liable for any severance and termination obligations
incurred as a result of the consummation of the Transactions for Available
Employees and the Company shall retain liability for severance paid to Employees
who are not Available Employees and not employees of the Transferred
Subsidiaries.
(ii) Buyer agrees to cause each of its medical, dental and health plans
that provides coverage to a Transferred Employee to (A) waive any preexisting
conditions, waiting periods and actively at work requirements under such plans,
other than limitations or waiting periods that are already in effect with
respect to such employees and that have not been satisfied as of the Closing
Date under any welfare plan maintained for the Transferred Employees immediately
prior to the Closing Date and (B) cause such plans to honor any expenses
incurred by the Transferred Employees and their beneficiaries under similar
plans of the Company during the portion of the calendar year prior to the
Closing Date for purposes of satisfying applicable deductible, co-insurance and
maximum out-of-pocket expenses.
(iii) Beneficiary Coverage. References herein to a benefit with respect
to a Transferred Employee or Available Employee shall include, where applicable,
benefits with respect to any eligible dependents and beneficiaries of such
Transferred Employee or Available Employee under the terms of the relevant
employee benefit policy, plan, arrangement, program, practice, or agreement.
(iv) The Company shall retain all Liabilities under the Compensation
and Benefit Plans listed on Section 9.1(i)(iv) of the Disclosure Letter.
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(v) At the Closing, Buyer shall execute and deliver the letter attached
hereto as Exhibit I, to the recipients described therein.
(j) Vacation. The Company shall not pay out to Employees vacation pay
benefits earned but not yet used as of the Closing Date, other than for
Available Employees who choose not to become Transferred Employees, which
vacation pay cost shall be reimbursed by Buyer. Buyer shall provide Transferred
Employees with credit under Buyer's vacation pay plan for the earned but not yet
used vacation pay benefits and attributable to each Transferred Employee as set
forth on a written schedule provided prior to the Closing by the Company to
Buyer. Liability for such amounts shall be borne by Buyer; the Company shall
have no liability for such vacation pay benefits.
(k) WARN Act and Health Care Continuance Requirements.
(i) Buyer shall be responsible for providing or discharging any and all
notifications, benefits, and liabilities to Transferred Employees and
Governmental Entities required by the Worker Adjustment and Retraining
Notification Act of 1988 (the "WARN Act") or by any other applicable law
relating to plant closings or employee separations or severance pay that are
first required to be provided or discharged on or after the Closing Date,
including pre-closing notice or liabilities if actions by Buyer on or after the
Closing Date result in a notice requirement or liability under such laws. The
Company shall reasonably cooperate with Buyer in preparing and distributing any
notices that Buyer may desire to provide prior to Closing. All employees
involuntarily separated from employment by the Company within 90 days of the
Closing Date shall be identified on a schedule to be prepared by the Company and
submitted to Buyer as soon as practicable after the date hereof and in no event
later than the Closing Date. Buyer and the Company shall cooperate with each
other to provide timely notice, if required, to any Governmental Entity of the
consummation of this Agreement and the related transfer of employees.
(ii) The Company shall retain the obligations with respect to COBRA
continuation coverage for all Available Employees who do not become Transferred
Employees; provided however, that Buyer shall reimburse the Company for the
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amount by which aggregate medical claims incurred by such Employees exceeds the
aggregate premiums collected by the Company with respect to COBRA coverage for
such Employees.
(l) The Company shall cause each Transferred Subsidiary that is a
participating subsidiary in any Compensation and Benefit Plan retained by the
Company to cease to be a participating subsidiary as of the Closing.
9.2 Transitional Employment Matters. (a) Buyer shall assume and shall
reimburse the Company for all Liabilities that arise or have arisen out of, in
respect of or as a result of the employment (or termination of employment) of
any Transition Employee, except that the Company expressly retains liability for
(i) salary, wages, cash compensation and related payroll taxes and providing
employee benefits during the period from the Closing Date to the date such
Transition Employee's employment is terminated, (ii) incremental liability, if
any, for any post-employment benefit entitlement and severance incurred by
reason of a Transition Employee remaining employed by the Company after the
first anniversary of the Closing Date, (iii) incremental severance liability, if
any, by reason of the Company (x) increasing the salary of any such Transition
Employee by more than 4% since the Closing Date or (y) putting in place
severance enhancements after the Closing Date, and (iv) any employment-related
liabilities to the extent related to acts or omissions that occur during the
period from the Closing Date to the date such Transition Employee's employment
is terminated (including, without limitation, for employment discrimination or
other torts or violations of law). Buyer and the Company shall share Liability
for any retiree medical obligations for Transition Employees who either (i)
retire in the first year after the Closing, or (ii) were eligible to retire and
receive retiree medical benefits under the Company's retiree medical plan as of
the Closing Date, to the same extent as for Covered Retirees. Any other retiree
medical Liabilities for Transition Employees shall be the Company's
responsibility.
9.3 Other Employee Matters. (a) The Company, Buyer, the administrator
of the Compensation and Benefit Plans and the administrator of the employee
benefits plans established by Buyer shall assist and cooperate with each other
in providing each other with any records, documents or other information and
access to personnel within its control or to which it has access that is
reasonably requested by
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any other such party as necessary to the disposition, settlement or defense of
any claim or to the implementation of the provisions of this Article IX.
(b) Successors and Assigns. From and after Closing, in the event either
Party or any of its successors and assigns (i) consolidates with or merges into
any other Person and shall not be the continuing or surviving corporation or
entity in such consolidation or merger or (ii) transfers all or substantially
all of its properties and assets relating to the Business to any Person, then,
and in each case, proper provision shall be made so that such successors and
assigns of such Party expressly agree to assume and honor the obligations of
such Party set forth in this Article.
(c) Each of Buyer and the Company acknowledge that the Transactions
contemplated by this Agreement and by the Merger Agreement shall be a
"change-in-control" of the Company with respect to all participants under any
"Change of Control" provisions of the Compensation and Benefit Plans.
ARTICLE X
Conditions
10.1 Conditions to Each Party's Obligations. The respective obligations
of each party to effect the Closing are subject to the satisfaction or waiver at
or prior to the Closing of each of the following conditions:
(a) Stockholder Approval. The Transactions shall have been authorized
by a resolution adopted by the Company Requisite Vote.
(b) Regulatory Consents. The waiting periods applicable to the
consummation of the Transactions under the HSR Act shall have expired or been
terminated and the notices, reports and other filings listed in Section 10.1(b)
of the Disclosure Letter shall have been made or obtained.
(c) No Orders. No court or Governmental Entity of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
statute, law, ordinance, rule, regulation, judgment, decree, injunction or
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other order (whether temporary, preliminary or permanent) (collectively, an
"Order") that is in effect and restrains, enjoins or otherwise prohibits
consummation of the Transactions.
(d) Closing Agreement. The Company, Buyer, CPI, Parent, CPI Merger Sub
and Company Merger Sub shall have executed and delivered, each to the other, the
Closing Agreement as contemplated by Section 8.12(a).
(e) Financing. Buyer shall have obtained financing proceeds sufficient
to consummate the Purchase on the terms and conditions set forth in the
Arrangements or upon terms and conditions which are substantially comparable
thereto, and to the extent that any of the terms and conditions are not so set
forth or are not so substantially comparable, on terms and conditions
satisfactory to Buyer in its sole discretion.
10.2 Conditions to Obligations of Buyer. The obligations of Buyer to
effect the Closing are also subject to the satisfaction or waiver by Buyer at or
prior to the Closing of the following conditions:
(a) Representations and Warranties of the Company. (i) The
representations and warranties of the Company set forth in this Agreement that
are qualified by reference to "Material Adverse Effect" shall be true and
correct as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date (except to the extent that any such
representation and warranty expressly speaks as of an earlier date, in which
case such representation and warranty shall be true and correct as of such
earlier date); (ii) the representations and warranties of the Company set forth
in this Agreement that are not qualified by reference to "Material Adverse
Effect" shall be true and correct as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date (except to the extent
that any such representation and warranty expressly speaks as of an earlier
date, in which case such representation and warranty shall be true and correct
as of such earlier date), provided, however, that notwithstanding anything
herein to the contrary, the condition set forth in this Section 10.2(a)(ii)
shall be deemed to have been satisfied even if such representations and
warranties of the Company are not true and correct unless the failure of such
representations
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and warranties of the Company to be so true and correct, individually or in the
aggregate, has had (since the date of this Agreement) or is reasonably likely to
have a Material Adverse Effect; and (iii) Buyer shall have received a
certificate signed on behalf of the Company by the Chief Executive Officer of
the Company to the effect that such Chief Executive Officer has read this
Section 10.2(a) and the conditions set forth in this Section 10.2(a) have been
satisfied.
(b) Performance of Obligations of the Company. The Company shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date; provided that the
Company shall have performed its obligations pursuant to Section 8.1(b)(vii) in
all respects.
(c) Permits. All Permits listed in Section 10.2(c) of the Disclosure
Letter shall have been obtained, or arrangements reasonably satisfactory to
Buyer to provide Buyer the benefits of such items as to which Permits shall have
not been obtained, shall have been entered into.
(d) No Litigation. No Governmental Entity shall have instituted any
suit, action or proceeding that remains pending at the time of Closing seeking
to restrain, enjoin or otherwise prohibit the consummation of the Purchase or
the Mergers (an "Injunctive Action"), and no Person shall have instituted any
suits, actions or proceeding that remains pending at the time of Closing before
any U.S. court of competent jurisdiction, except for any (i) Injunctive Action
and (ii) any other such suits, actions or proceedings that, after giving effect
to any liabilities of Buyer pursuant to the Indemnification Agreement, are not,
individually or in the aggregate, reasonably likely to have a Material Adverse
Effect.
(e) Fund Agreement. The Company and the shareholders party thereto
shall have executed and delivered to Buyer the Fund Agreement.
10.3 Conditions to Obligations of the Company. The obligations of the
Company to effect the Closing are also subject to the satisfaction or waiver by
the Company at or prior to the Closing of the following conditions:
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(a) Representations and Warranties of Buyer. (i) The representations
and warranties of Buyer set forth in this Agreement shall be true and correct as
of the date of this Agreement and as of the Closing Date as though made on and
as of the Closing Date (except to the extent that any such representation and
warranty expressly speaks as of an earlier date, in which case such
representation and warranty shall be true and correct as of such earlier date)
provided, however, that notwithstanding anything herein to the contrary, this
Section 10.3(a) shall be deemed to have been satisfied even if the
representations and warranties of Buyer are not so true and correct unless the
failure of such representations and warranties to be so true and correct,
individually or in the aggregate, is reasonably likely to materially delay or
impair the validity of the transactions contemplated by this Agreement; and (ii)
the Company shall have received a certificate signed on behalf of Buyer by the
Chief Executive Officer of Buyer to the effect that such Chief Executive Officer
has read this Section 10.3(a) and the condition set forth in this Section
10.3(a) has been satisfied.
(b) Performance of Obligations of Buyer. Buyer shall have performed in
all material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date.
ARTICLE XI
Termination
11.1 Termination by Mutual Consent. This Agreement may be terminated
and the Transactions may be abandoned at any time prior to the Closing by mutual
written consent of the Company and Buyer by action of their respective boards of
directors.
11.2 Termination by Either Buyer or the Company. This Agreement may be
terminated and the Transactions may be abandoned at any time prior to the
Closing by action of the board of directors of either Buyer or the Company if
(i) the Transactions shall not have been consummated by October 31, 2001 (the
"Termination Date"), whether such date is before or after the adoption of this
Agreement by holders of Company Shares, (ii) the Company shall not have obtained
the Company Requisite Vote upon a vote taken at a meeting of the
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Company stockholders duly convened therefor or at any adjournment or
postponement thereof or as a result of a solicitation of consents pursuant to
the DGCL and, to the extent applicable, the federal proxy rules, or (iii) any
Order permanently restraining, enjoining or otherwise prohibiting consummation
of the Transactions shall become final and non-appealable; provided that the
right to terminate this Agreement pursuant to clause (i) above shall not be
available to any party that has breached in any material respect its obligations
under this Agreement in any manner that shall have contributed to the occurrence
of the failure of the Transactions to be consummated.
11.3 Termination by the Company. This Agreement may be terminated and
the Transactions may be abandoned at any time prior to the Closing, whether
before or after the authorization of the Transactions by holders of a majority
of Company Shares entitled to vote thereon referred to in Section 10.1(a), by
action of the Board of Directors of the Company:
(a) prior to the effectiveness of the Company Requisite Vote, if (i)
the Board of Directors of the Company authorizes the Company, subject to
complying with the terms of this Agreement, to enter into a binding written
agreement concerning a Business Acquisition Proposal or Company Acquisition
Proposal that constitutes a Superior Proposal and the Company notifies the Buyer
that it intends to enter into such an agreement, (ii) Buyer does not make,
within three business days of receipt (not counting the day of receipt) of the
Company's written notification of its intention to enter into a binding
agreement for such Superior Proposal, an offer that the Board of Directors of
the Company determines, in good faith after consultation with its financial
advisors, is at least as favorable, from a financial point of view, to the
stockholders of the Company as such Superior Proposal and (iii) as a condition
to termination pursuant to this Section 11.3 the Company upon such termination
pays to the Buyer in immediately available funds any fees required to be paid
pursuant to Section 11.5(b);
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(b) if there has been a material breach by Buyer of any representation,
warranty, covenant or agreement contained in this Agreement that is not curable
or, if curable, is not cured within 30 days after written notice of such breach
is given by the Company to the Buyer and as a result of any such breach or
breaches either of the conditions set forth in Section 10.3(a) or (b) would not
be satisfied at the Closing; or
(c) (i) if the Merger Agreement has been terminated in accordance with
the terms thereof (other than pursuant to Section 8.3(a) of the Merger Agreement
to enter into a binding written agreement concerning a Healthcare Acquisition
Proposal) or (ii) within 10 Business Days after the termination of the Merger
Agreement pursuant to such Section 8.3(a), the Company has not entered into a
new agreement with respect to a Healthcare Acquisition Proposal that Buyer is
required to accept as a Substitute Merger Agreement pursuant to Section 8.11(c).
11.4 Termination by Buyer. This Agreement may be terminated and the
Transactions may be abandoned at any time prior to the Closing by action of the
Board of Directors of Buyer:
(a) if the Board of Directors of the Company shall have withdrawn or
adversely modified its approval or recommendation of this Agreement or after an
Acquisition Proposal has been made failed to reconfirm its recommendation of
this Agreement within five Business Days after a written request by Buyer to do
so; or
(b) if there has been a material breach by the Company of any
representation, warranty, covenant or agreement contained in this Agreement
(other than any representation and warranty set forth in Section 6.5(d) or (e))
that is not curable or, if curable, is not cured within 30 days after written
notice of such breach is given by Buyer to the Company, and as a result of any
such breach or breaches either of the conditions set forth in Section 10.2(a) or
(b) would not be satisfied at the Closing; or
(c) if (i) the Merger Agreement is terminated in accordance with the
terms thereof (other than pursuant to Section 8.3(a) of the Merger Agreement to
enter into a binding agreement concerning a Healthcare Acquisition Proposal that
constitutes a Superior Proposal) or (ii)
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within 10 Business Days after the termination of the Merger Agreement pursuant
to such Section 8.3(a), the Company has not entered into a new agreement with
respect to a Healthcare Acquisition Proposal that Buyer is required to accept as
a Substitute Merger Agreement pursuant to Section 8.11(c);
(d) at any time during the ten days following the delivery by the
Company to the Buyer of the financial statements described in clause (v) of the
first sentence of Section 8.7(a), if either of the representations and
warranties set forth in Section 6.5(d) or (e) is not true and accurate in all
respects as of the date of such termination; or
(e) at any time between June 23, 2001 and July 3, 2001 (or such later
date as may be agreed by the Parties in writing), if any of the financial
statements required to be delivered by the Company pursuant to clauses (i)
through (v) of Section 8.7(a) are not delivered to Buyer on or prior to June 22,
2001.
11.5 Effect of Termination and Abandonment. (a) In the event of
termination of this Agreement and the abandonment of the Transactions pursuant
to this Article XI, this Agreement (other than as set forth in Sections 12.1,
12.2 and this Section 11.5) shall become void and of no effect with no liability
on the part of any party hereto (or of any of its directors, officers,
employees, agents, legal and financial advisors or other representatives);
provided that the agreements contained in the last sentence of Section 8.2(a)
and in Sections 11.5 and 11.6 and in Article XII of this Agreement shall survive
termination.
(b) In the event that this Agreement is terminated (i) by the Company
pursuant to Section 11.3(a) or (ii) by Buyer pursuant to Section 11.4(a) or (b)
or (iii) by either Party pursuant to Section 11.2(ii), in the case of this
clause (iii), if the Voting Agreement has not been terminated pursuant to
Section 8(b)(i)(z) thereof at the time of such vote, then the Company shall
promptly, but in no event later than two Business Days after the date of such
termination, pay Buyer a termination fee of $22,000,000 and shall promptly, but
in no event later than two days after being notified of such by Buyer, pay all
of the charges and expenses incurred by Buyer in connection with this Agreement
and the Transactions up to a maximum amount of $4,000,000,
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in each case payable by wire transfer of same day funds. Notwithstanding the
foregoing, in the event that this Agreement is terminated by either party
pursuant to Section 11.2(ii) and the Voting Agreement has been terminated
pursuant to Section 8(b)(i)(z) thereof at the time of such vote, the Company
shall promptly, but in no event later than two days after being notified of such
by Buyer, pay all of the reasonable and customary charges and expenses incurred
by Buyer in connection with this Agreement and the Transactions up to a maximum
amount of $5,000,000, payable by wire transfer of same day funds. The Company's
payment shall be the sole and exclusive remedy of Buyer against the Company and
any of its Subsidiaries and their respective directors, officers, employees,
agents, advisors or other representatives with respect to the breach of any
covenant or agreement set forth in this Agreement. The Company acknowledges that
the agreements contained in this Section 11.5(b) are an integral part of the
Transactions, and that, without these agreements, Buyer and the Company would
not enter into this Agreement; accordingly, if the Company fails to promptly pay
the amount due pursuant to this Section 11.5(b), and, in order to obtain such
payment, the Buyer commences a suit which results in a judgment against the
Company for the fee, charges or expenses set forth in this Section 11.5(b), the
Company shall pay to the Buyer its reasonable costs and expenses (including
reasonable attorney's fees) in connection with such suit, together with interest
on the amount so owing at the prime lending rate of Citibank, N.A. in effect on
the date such payment was required to be made.
11.6 Return of Information. If for any reason whatsoever this Agreement
is terminated, the Buyer shall promptly return to the Company all books,
Contracts, records and data room contents and other written information related
to the Business and all copies or summaries thereof furnished by the Company or
its Subsidiaries or any of their respective agents, employees, or
representatives (including all copies, if any, thereof), and shall not use or
disclose the information contained in such books and records or other documents
for any purpose or make such information available to any other entity or
person. The foregoing obligations of Buyer shall be in addition to Buyer's
obligations under the Confidentiality Agreements.
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ARTICLE XII
Miscellaneous and General
12.1 Survival. Only this Article XII and Articles II, III, IV, V and IX
and Sections 8.6 (Equitable Assignment), 8.9 (Publicity), 8.10 (No Solicitation
and No Hiring), 8.14 (Sofibel S.A.R.L. Conversion) and 11.6 (Return of
Information) shall survive the Closing. Only this Article XII and the agreements
of Buyer and the Company contained in the last sentence of Section 8.2(a)
(Access) and in Sections 8.4 (Proxy Statement), 11.5 (Effect of Termination and
Abandonment) and 11.6 (Return of Information) and the Confidentiality Agreements
shall survive the termination of this Agreement. All other representations,
warranties, covenants and agreements in this Agreement shall not survive the
Closing or the termination of this Agreement.
12.2 Expenses. (a) Except to the extent otherwise expressly provided
herein, whether or not the Transactions are consummated, all costs and expenses
incurred in connection with this Agreement and the Transactions shall be paid by
the party incurring such expense.
(b) Notwithstanding the provisions of Section 12.2(a), in the event
that this Agreement is terminated pursuant to Section 11.4(d) or (e), then the
Company shall promptly, but in no event later than two days after the date of
such termination, pay all of the charges and expenses incurred by Buyer in
connection with this Agreement and the Transactions up to a maximum amount of
$2,500,000, payable by wire transfer of same day funds.
(c) Notwithstanding the provisions of Section 12.2(a), in the event
that any of (i) the Merger Agreement is terminated pursuant to Section 8.3(b)
thereof or Section 8.4(a) or (b) thereof, or (ii) this Agreement is terminated
pursuant to Section 11.4(c)(ii) as a result of the termination of the Merger
Agreement pursuant to Section 8.3(a) of the Merger Agreement, or (iii) the Buyer
and its debt and equity financing sources have executed and delivered to the
Company the Closing Agreement stating that all conditions to the Closing (other
than the execution and delivery of the Closing Agreement by the other parties
thereto) have been or will be satisfied or waived by Buyer
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(other than Section 10.1(c), which cannot be waived for this purpose) and this
Agreement is thereafter terminated pursuant to Section 11.3(c) or 11.4(c), then,
in any such case, the Company shall promptly, but in no event later than two
days after the date of such termination, pay all of the charges and expenses
incurred by Buyer in connection with this Agreement and the Transactions up to a
maximum amount of $5,000,000, payable by wire transfer of same day funds.
(d) In the event that the Company shall reimburse Buyer's expenses
pursuant to any of the first sentence of Section 11.5(b), the second sentence of
Section 11.5(b), Section 12.2(b) or Section 12.2(c) (any of such four
provisions, a "Specified Provision"), payments made in respect of the
reimbursement of expenses pursuant to any Specified Provision will be credited
against any payment required to be made pursuant to any other Specified
Provision.
12.3 Modification or Amendment. Subject to the provisions of applicable
Law, at any time prior to the Closing, the parties hereto may modify or amend
this Agreement, by written agreement executed and delivered by duly authorized
officers of Buyer and the Company.
12.4 Waiver of Conditions. The conditions to each of the parties'
obligations to consummate the Transactions are for the sole benefit of such
party and may be waived by such party in whole or in part to the extent
permitted by applicable Law.
12.5 Counterparts. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
12.6 GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL. (a) THIS AGREEMENT
AND ANY DISPUTES, CLAIMS OR CONTROVERSIES ARISING FROM OR RELATING TO THIS
AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF,
EXCEPT TO THE EXTENT THAT DELAWARE LAW IS REQUIRED TO BE APPLICABLE UNDER
APPLICABLE CHOICE OF LAW PRINCIPLES. The parties hereby irrevocably submit to
the jurisdiction of the courts of the State of New York and the Federal courts
of the United
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States of America located in the County of New York, New York solely in respect
of the interpretation and enforcement of the provisions of this Agreement and of
the documents referred to in this Agreement (unless otherwise provided therein),
and in respect of the Transactions, and hereby waive, and agree not to assert,
as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all Claims shall be heard and determined
in such a New York State or Federal court. The parties hereby consent to and
grant any such court jurisdiction over the person of such parties and over the
subject matter of such dispute and agree that mailing of process or other papers
in connection with any such Claim by certified mail in the manner provided in
Section 12.7 or in such other manner as may be permitted by law shall be valid
and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY,
AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.6.
12.7 Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the others shall be in writing and delivered
personally or sent by registered or certified mail return receipt requested,
postage prepaid, by overnight courier, or by facsimile:
-88-
if to Buyer
Armkel, LLC
c/o Kelso & Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx , XX 00000
Attention: General Counsel
fax: (000) 000-0000
(with copies to:
Church & Xxxxxx Co., Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
Attention: General Counsel
fax: (000) 000-0000
Xxxxxx Xxxxx
Xxxxxx, Xxxx & Xxxxxxxx LLP
0 Xxxx Xxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxx Xxxxx
Xxxxxx X. Xxxxxx
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000)
if to the Company at or prior to Closing
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, X.X.
Attention: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
-89-
(with copies to Xxxxx X. Xxxxxx,
Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (Facsimile 212-558-3588) and
Xxxxxxx X. Xxxx, Xxxxxxxx & Xxxxxxxx,
0000 Xxxxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000
(Facsimile: 650-461-5700).)
if to the Company at or after Closing
X/x XxxXxxxxx Xxxxxxx Xxxxxxxx, X.X.X.
00 XXX Xxxxxxx
First Floor, West
Short Hills, N.J. 07078
Attention: Xxxx Xxxx
fax: (000) 000-0000
(with a copy to Xxxxxxx X. Xxxxxx, Xxxxxxx Xxxxxxx
& Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (Facsimile: (000) 000-0000).)
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above. Notice shall be deemed given on
the date of actual delivery to the appropriate address. Delivery receipts and
records issued by postal authorities and overnight air couriers shall be
conclusive evidence of delivery dates for deliveries by such entities.
12.8 Entire Agreement; NO OTHER REPRESENTATIONS. (a) This Agreement
(including the Ancillary Agreements and any other exhibits hereto), the
Disclosure Letter, the Confidentiality Agreements and any agreement between the
Company and Buyer making specific reference to this Section 12.8 constitute the
entire agreement, and supersede all other prior agreements, understandings,
representations and warranties both written and oral, among the parties, with
respect to the subject matter hereof.
(b) EACH PARTY HERETO AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN ARTICLES VI and VII IN THIS AGREEMENT, NEITHER THE
COMPANY NOR THE BUYER MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES (INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS), AND EACH HEREBY DISCLAIMS
ANY OTHER REPRESENTATIONS OR WARRANTIES MADE BY ITSELF OR ANY OF ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, FINANCIAL AND LEGAL ADVISORS OR OTHER REPRESENTA-
-90-
TIVES, WITH RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE
TRANSACTIONS, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE OTHER OR THE
OTHER'S REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION WITH RESPECT
TO ANY ONE OR MORE OF THE FOREGOING.
12.9 Severability. It is the intention of the parties that the
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or enforce-
ability of the other provisions hereof. It is the intention of the parties that
if any provision of this Agreement, or the application thereof to any Person or
any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
12.10 Assignment. (a) Subject to Section 9.3(b), this Agreement shall
not be assignable by operation of law or otherwise and any assignment made in
contravention of this Section shall be null and void.
(b) From and after Closing, in the event Buyer or the Company or any of
their respective successors or assigns (i) consolidates with or merges into any
other Person and shall not be the continuing or surviving corporation or entity
in such consolidation or merger or (ii) transfers all or substantially all of
its properties and assets relating to the Business, in the case of Buyer, and
relating to the business of the Company, in the case of the Company, to any
Person, then, and in each case, proper provision shall be made so that such
successors and assigns of Buyer or the Company, as the case may be, expressly
agree to assume and honor the obligations of Buyer or the Company, as
applicable, set forth in this Agreement. Notwithstanding anything herein to the
contrary, Buyer may assign all or any portion of its rights, obligations or
other interests under this Agreement to purchase one or more Transferred
Subsidiaries to one or more Subsidiaries of Buyer, provided that Buyer shall
remain obligated hereunder.
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12.11 No Third-Party Beneficiary Rights. Except with respect to
Sections 9.1(e), 9.1(f), 9.1(h)(i), 9.1(i)(ii), (iii) and (v), 9.1(j), 9.3(b)
and 9.3(c), this Agreement is not intended to confer upon any Person other than
the Parties any rights or remedies hereunder or in connection herewith.
12.12 Bulk Transfers. The Parties waive compliance with the
requirements of the bulk sales laws of any jurisdiction in connection with the
Transactions.
12.13 Further Assurances. Following the date of this Agreement, and
continuing during the period after the Closing, the Company and Buyer will use
reasonable best efforts to identify Excluded Assets and Excluded Liabilities
held by the Transferred Subsidiaries or by Buyer and its Affiliates and
Purchased Assets and Assumed Liabilities held by the Company and its Affiliates.
From time to time, whether at or after the Closing, (a) the Company will exe-
cute and deliver such further instruments of conveyance, transfer and assignment
and take such other action as Buyer may reasonably require to more effectively
convey and transfer to Buyer any of the Purchased Assets as contemplated
hereunder and to have the Company retain the Excluded Liabilities as
contemplated hereunder, and (b) Buyer will execute and deliver such further
instruments and take such other action as the Company may reasonably require to
more effectively assume the Assumed Liabilities as contemplated hereunder.
12.14 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their proper officers, duly authorized so to do all as of the date
of this Agreement.
ARMKEL, LLC
By: Church & Xxxxxx Co., Inc.
By: /s/ Xxxxxx X. Xxxxxx, III
---------------------------------
Name: Xxxxxx X. Xxxxxx, III
Title: Chief Executive Officer
By: Xxxxx & Company, L.P.
By: Xxxxx & Companies, Inc.
its general partner
By: /s/ Xxxxx X. Xxxxxxx, XX
--------------------------------
Name: Xxxxx X. Xxxxxxx, XX
Title: V.P. & General Counsel
XXXXXX-XXXXXXX, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and Chief Executive
Officer
-93-
EXHIBIT A
Xxxx of Sale
A-94
