Exhibit 2.4
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is entered into as of this 27th day of September,
2002, by and between SIPEX CORPORATION, a Massachusetts corporation ("Sipex" or
the "Seller") and SATCON ELECTRONICS INC., a Delaware corporation ("SatCon" or
the "Purchaser").
WITNESSETH:
WHEREAS, Seller, as part of its broader operations, owns and operates a Thin
Film and Hybrid Assembly business (the "Business"); and
WHEREAS, Purchaser, as part of its broader operations, likewise owns and
operates a Thin Film and Hybrid Assembly business; and
WHEREAS, subject to the terms and conditions set forth in this Agreement, Seller
desires to sell to Purchaser (or its assignee), and Purchaser desires to
purchase from Seller, certain of Seller's assets that are used in the conduct of
the Business, as more fully described below.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Purchase, Sale and Assumption
1.1. Agreement to Sell and to Purchase.
On the terms and subject to the conditions set forth herein, Seller
agrees to sell, assign, transfer, convey and deliver to Purchaser, and Purchaser
agrees to purchase and acquire from Seller, at the Closing (as defined herein),
all right, title and interest of Seller in and to the following assets,
properties and rights as they shall exist on the Closing Date (as defined
herein) (the "Assets"):
1.1.1. All of the machinery, equipment, replacement and spare parts for
machinery, equipment and operating supplies that is owned by Seller and
used exclusively in the Business as such is set forth on Schedule A,
(collectively the "Personal Property");
1.1.2. All inventories of materials, work in progress, finished goods,
spare or replacement parts, supplies and store room contents and other
inventoried items related exclusively to the Business as such is set
forth on Schedule B (collectively, the "Inventory");
1.1.3. The contracts agreements and purchase and sale orders of Seller
in force and effect, related exclusively to the Business (including
"backlog orders"), as set forth in Schedule C (collectively, the
"Contracts");
1.1.4. Certain books, documents and records of Seller pertaining
exclusively to the Business, wherever located, including, but not
limited to, customer lists each as set forth on Schedule D; provided,
however, Seller may retain copies of such materials to the extent
necessary for Seller to fulfill its obligations under this Agreement or
under any laws, regulations or understandings by which it is bound.
All assets, properties, licenses and rights described under Sections
1.1.1 through 1.1.4 and, subject to the terms and conditions of Section 1.4, the
assets, properties, licenses and rights described under Section 1.5,
collectively are referred to herein as the "Assets." The Purchaser
acknowledges and understands that except for the representations and warranties
made by the Seller in Article 3 hereof, the Assets are sold "as is, where is."
The Purchaser hereby waives compliance by the Seller with the provisions of the
"bulk sales," "bulk transfer" or similar laws of any state, if applicable. For
the avoidance of doubt, no Inventory, Personal Property or Contract related to
SDS P/C ("SNECMA") shall be included as an Asset.
1.2. Excluded Assets.
Notwithstanding anything to the contrary set forth above, the Assets
shall not include (i) any cash, accounts receivable, negotiable securities,
certificates of deposit, bonds, lock boxes, letters of credit and other cash
equivalents, the rights of Seller under any insurance policies and the rights
which would accrue or will accrue to Seller under this Agreement or any other
assets of Seller except as specifically provided in Section 1.1; or (ii) any
assets, including, without limitation, any backlog related to SNECMA.
1.3 Liabilities Not Assumed.
1.3.1. Purchaser shall have no liability whatsoever for any liabilities
of Seller, including, without limitation, (i) any claim, regardless of
when made or asserted, which arises out of or is based upon any express
or implied representation, warranty, agreement or guarantee made by the
Seller, or alleged to have been made by the Seller, or which is opposed
or asserted to be imposed by operation of law, in connection with any
product manufactured, shipped or installed by or on behalf of the Seller
or for any service performed by or on behalf of the Seller with respect
to the Business or the Assets for any period prior to the Closing Date,
including, without limitation, any claim relating to the repair or
replacement of any such product and any claim seeking recovery for
property damage, consequential damages, loss, lost revenue or income or
personal injury with respect to the Business or the Assets for any
period prior to the Closing Date or (ii) any liability or obligation in
respect of any federal, state or local income or other tax payable with
respect to the Business or the Assets for any period prior to the
Closing Date.
1.3.2. Notwithstanding the foregoing, Purchaser agrees to provide
Warranty Services (as defined below) for products sold by Seller in the
course of operating the Business during the twelve month period prior to
the date hereof. Such services shall be provided by Purchaser for a
period of twelve months after the date hereof (the "Warranty Period")
and shall be provided only after the written approval of Seller.
Warranty Services shall consist of the repair and replacement of
defective products sold by Seller in the course of operating the
Business and shall include labor, overhead (applied consistently with
Purchaser's practice) and materials (supplied by Purchaser at
Purchaser's expense.) Any Warranty Services approved by the Seller and
provided by Purchaser during the Warranty Period in excess of an
aggregate of $25,000.00 shall be reimbursed by the Seller. Further,
Purchaser shall assume responsibility for the quality of the Warranty
Services and goods provided by it hereunder and shall indemnify, defend
and hold harmless Seller for any and all claims arising from such
Warranty Services and goods supplied or performed by Purchaser.
Notwithstanding any other provision in this Agreement, any obligation or
liability with respect to an accounts payable which is incurred by the Seller in
any period ending prior to the Closing shall not be an assumed liability for the
purposes of this Agreement.
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1.4 On the terms and conditions set forth herein, Seller hereby grants to
Purchaser an exclusive, worldwide, royalty-free license to make, have made, use,
market, sell, have sold, import, distribute, rent, lease or sub-license the
intellectual property set forth in SCHEDULE E hereto (collectively, the
"Intellectual Property") for use in the Business (other than as related to
SNECMA). For avoidance of doubt, Seller retains all rights in the Intellectual
Property (i) in connection with its businesses other than the Business and (ii)
for use in connection with its business relationship with SNECMA whether or not
such relationship is related to or deemed to be in competition with the
Business.
1.5 Upon the payment by Purchaser of all required payments pursuant to
Sections 2.1.1(c) and (d) herein, all of its rights, title and interest in the
Intellectual Property shall vest in the Purchaser without further payment
therefor, PROVIDED, HOWEVER, that Seller shall continue to have an irrevocable,
non-exclusive, worldwide, royalty-free license to make, have made, use, market,
sell, have sold, import, distribute, rent, lease or sub-license the Intellectual
Property (i) in connection with its businesses other than the Business and (ii)
for use in connection with its business relationship with SNECMA whether or not
such relationship is related to or deemed to be in competition with the
Business.
2. The Purchase Price; Covenants; Closing
2.1. Purchase Price.
2.1.1 The purchase price (the "Purchase Price") shall be paid to
Seller in the form of royalty payments over a period of three years, as
set forth below.
a) Sipex shall, upon Closing, provide to SatCon an updated
backlog schedule with regard to products related to the Business
(excluding those related to SNECMA) as of the Closing Date (the
"Backlog Schedule" attached as Schedule F). SatCon shall pay
Sipex a royalty for all cash collections from the existing
Backlog Schedule at a rate of 50% of collected funds. This
royalty is payable within ten (10) business days of the end of
the month in which SatCon receives payment from the customer,
and is in addition to any below listed payment schedules.
b) Sipex shall, as soon as practicable after the Closing,
provide SatCon with the following sales and marketing support in
connection with the Business: (i) a one-time introductory
meeting, with Sipex and SatCon sales personnel present at such
meeting, to 8-10 customers of the Business and significant sales
representatives related thereto, (ii) reasonable cross
references of Sipex Products to major programs and platforms to
which such Sipex Products are designed into and (iii) all data
sheets and marketing materials and catalogs of Sipex Products.
In addition, Sipex will send a letter of announcement to all
customers of the Business (other than SNECMA) and prepare a
press release.
c) SatCon shall pay a royalty to Sipex for all cash
collections for Sipex products as set forth on Schedule G
("Sipex Products") in accordance with the following schedule
(excluding cash collections for sales included on the Backlog
Schedule).
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- Quarter 1(1) 40% of collected revenue
- Quarter 2 40% of collected revenue
- Quarter 3 through Quarter 8 15% of collected revenue
- Quarter 9 through Quarter 12 15% of collected revenue
d) The above payments will be subject to a minimum and a
maximum:
- Year 1 (Quarters 1-4) minimum of $150,000 and a
maximum of $400,000
- Year 2 (Quarters 5-8) minimum of $150,000 and a
maximum of $350,000
- Year 3 (Quarters 9-12) minimum of $100,000 and a
maximum of $300,000.
e) Royalties shall be paid within twenty (20) business days
of the end of the month in which SatCon receives payment from
the customers. Minimum adjustments will be made no later than
thirty (30) days after the close of each twelve month period.
Subject to and cumulative with the Seller's rights under Section
6.2.3 hereof, all late payments by Purchaser shall be subject to
a penalty equal to 12.0% per annum of the amount owed to Seller
and calculated from the day after the 20th business day of the
end of the month SatCon receives payment from the customers. If
a maximum is met during the above time periods, all payments
(excluding payments made pursuant to Section 2.1.1(a)) will
cease and resume at the start of the next twelve month period.
If a maximum royalty of $400,000 (excluding payments made
pursuant to Section 2.1.1(a)) is met, all minimum royalties for
future periods will be cancelled. All future commissions will
continue to be paid at the contract rate as set forth above.
2.2 The Closing.
Subject to the terms and conditions set forth herein, the closing of the
purchase and sale of the Assets (the "Closing") shall take place at Seller's
headquarters as soon as practicable after the conditions set forth in Articles
2.4 and 2.5 have been satisfied or waived, or at such other time and place as
the parties hereto may agree. (The date of the closing being hereinafter called
the "Closing Date".) All transactions contemplated at the Closing shall be
deemed to be effective (the "Effective Time") as of midnight on the day
preceding the Closing Date (the Closing Date being deemed to commence at 12:01
a.m.), and events taking place, and periods ending after the Effective Time
shall be deemed to have taken place, or ended, after the Closing Date.
2.4. Items to be Delivered at Closing.
At the Closing, and subject to the terms and conditions herein
contained:
2.4.1. The Seller will deliver to the Purchaser the following:
a) A xxxx of sale, reasonably satisfactory to Purchaser,
conveying Seller's rights, title and interest in the Assets and
all other instruments as Purchaser may reasonably request in a
form satisfactory to the Purchaser and its counsel, as shall be
necessary and effective to convey, transfer and assign to, and
vest in, the Purchaser all of Seller's right, title and interest
in and to the Assets and all
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(1) "Quarter 1" shall begin as of the date hereof and shall end ninety (90) days
thereafter, and other dates shall be calculated accordingly.
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agreements, contracts, commitments, proposals, licenses,
authorizations, assignments, consents and instruments which are
incident thereto.
b) A certified copy of Seller's Articles of Incorporation
and all amendments thereto as in effect on the Closing Date and
of Seller's By-laws as amended to the Closing Date.
c) A certificate of the President or a Vice President of
the Seller, dated the Closing Date, certifying the accuracy of
Seller's representation and warranties hereunder and that the
Seller has performed and complied, in all material respects,
with all agreements and conditions required by this Agreement to
be performed and complied with by the Seller prior to or at the
Closing
d) A statement in writing by the President or Vice
President of the Seller that the sale of Assets is authorized by
the Seller's board of directors and that he or she has the
requisite authority to execute documents of conveyance of the
Assets;
e) An incumbency certificate for the Seller dated the
Closing Date, including specimen signatures; and
f) All of the agreements, contracts, commitments, leases,
plans, bids, quotations, proposals, licenses, permits,
authorizations, instruments, computer programs and software,
manuals and guidebooks, price books and price lists, customer
lists, supplier lists, sales records, files, correspondence, and
other documents, books, records, papers, files and data
belonging to the Seller which are part of the Assets as set
forth on Schedules A through G; provided, however, that Seller
may retain copies of such materials to the extent necessary for
Seller to fulfill its obligations under this Agreement or under
other agreements, laws, regulations or understandings by which
it is bound.
2.4.2. The Purchaser will deliver to the Seller the following:
a) A certified copy of Purchaser's Certificate of
Incorporation and all amendments thereto as in effect on the
Closing Date;
b) An incumbency certificate for the Purchaser dated the
Closing Date, including specimen signatures;
c) A statement by the President or Vice President that the
purchase of Assets is authorized by the Seller's board of
directors and that he or she has the requisite authority to
execute documents on behalf of the Purchaser;
d) A certificate of the President or a Vice President of
the Purchaser, dated the Closing Date, certifying the accuracy
of Purchaser's representation and warranties hereunder and that
the Purchaser has performed and complied, in all material
respects, with all agreements and conditions required by this
Agreement to be performed and complied with by the Purchaser
prior to or at the Closing; and
2.4.3. Simultaneously with such deliveries, all reasonable steps will
be taken as may be required to put the Purchaser in actual possession of
the Assets.
2.5. Third Party Consents.
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To the extent that the Seller's rights under any Asset to be conveyed,
transferred or assigned to the Purchaser hereunder may not be conveyed,
transferred or assigned without the consent of another person which is not
obtained by the Closing Date, this Agreement shall not constitute an agreement
to assign the same if an attempted assignment would constitute a breach thereof
or be unlawful. The Seller covenants and agrees to use reasonable efforts to
obtain all such required consents as promptly as possible prior to or after the
Closing. If any such consent shall not be obtained or if any attempted
assignment would be ineffective or would impair the Purchaser's rights under the
Asset in question so that the Purchaser would not in effect acquire the benefit
of all such rights, the Seller, to the maximum extent permitted by law and the
Asset, shall act as the Purchaser's agent in order to obtain for it the benefits
thereunder and shall cooperate, to the maximum extent permitted by law, with the
Purchaser in any other reasonable arrangement designed to provide such benefits
to the Purchaser, provided however, Purchaser shall not be permitted to execute
any agreement on behalf of Seller.
2.6. Further Assurances.
The Seller, from time to time after the Closing, at the Purchaser's
request, will execute, acknowledge and deliver to the Purchaser such other
instruments of conveyance and transfer and will take such other actions and
execute and deliver such other documents, certifications and further assurances
as the Purchaser may reasonably require in order to vest more effectively in the
Purchaser, or to put the Purchaser more fully in possession of any of the
Assets, or to better enable the Purchaser to complete, perform or discharge any
of the liabilities or obligations assumed by the Purchaser at the Closing.
2.7 Allocation of Purchase Price.
Promptly after the Closing, Purchaser and Seller agree to allocate the
Purchase Price and the value of any assumed liabilities among the Assets in
writing. Purchaser and Seller will file all tax returns (including amended
returns and claims for refunds) and information reports in a manner consistent
with such allocation.
3. Representations and Warranties of the Seller
EXCEPT AS CONTAINED HEREIN, THE SELLER MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES WHATSOEVER REGARDING THE ASSETS AND HEREBY EXPRESSLY DISCLAIMS ALL
OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
The Seller hereby represents and warrants to the Purchaser that:
3.1. Corporate Existence; Corporate Power and Authorization.
3.1.1 Seller is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of
Massachusetts, and has all requisite power and authority and all
necessary licenses and permits to carry on the Business as it
has been conducted.
3.1.2 The Seller has the corporate power to execute, deliver and
perform this Agreement. The execution, delivery and performance
of this Agreement by the Seller have been duly authorized by all
necessary corporate action. This
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Agreement has been duly executed and delivered by the Seller and
constitutes the legal, valid and binding obligation of the
Seller enforceable against it in accordance with its terms.
3.2. Title to Assets
Seller has good, valid and marketable title to all of the Assets, free
and clear of all liens, pledges, security interests, charges, claims,
restrictions and other encumbrances and defects of title of any nature
whatsoever other than liens, if any, of current taxes not yet due and payable or
liens which will be discharged or satisfied by the Closing Date, other than
those which would not reasonably be expected to have a material adverse effect
on the Assets. To Seller's knowledge and belief, all leases, licenses, permits
and authorizations in any manner related to the Assets or the Business and all
other instruments, documents and agreements pursuant to which Seller has
obtained the right to use any property in connection with the Business are in
good standing, valid and effective in accordance with their respective terms,
and there is not under any of such instruments, documents or agreements any
existing default or event which with notice or lapse of time, or both, would
constitute a default and in respect of which Seller has not taken adequate steps
to prevent a default from occurring except those which would not reasonably be
expected to have a materially adverse affect on the Assets or the Business.
3.3. Condition of Tangible Assets.
To Seller's knowledge and belief, except as disclosed herein, all
machinery, equipment and other material items of personal property included as
Assets are in good operating condition and repair, subject to normal wear and
maintenance, are usable in the regular and ordinary course of the Business and
conform in all material respects to all applicable laws, ordinances, codes,
rules and regulations relating to their assemblage, use and operation. To
Seller's knowledge and belief, no person other than Seller owns any equipment or
other tangible assets or properties necessary to the operation of the Business
as currently conducted.
3.4. Tax Obligations.
To Seller's knowledge and belief, except as disclosed herein, (a) all
taxes under laws of the United States or any state or municipal or political
subdivision thereof required to be paid by Seller in connection with the Assets
have been paid to the appropriate governmental agencies in all jurisdictions in
which such payments are required to be paid; and (b) Seller has no knowledge of
any basis for any additional assessment of any taxes on the Assets.
3.5. Compliance with Law.
To Seller's knowledge and belief, Seller has complied and is not in
violation of any law, ordinance, or governmental rule or regulation to which the
Business, or the Assets is subject except for those instances in which
noncompliance would not reasonably be expected to have a material adverse affect
on the Business or the Assets.
3.6 Permits, Notices.
Seller represents that it has not received and to Seller's knowledge and
belief, there did not exist, any notice, notification or inquiry from any
governmental or quasi-governmental agency to the effect that the Business or any
of the Assets was in violation of any law, ordinance, rule, regulation, license,
permit or authorization as of this date. Seller agrees that it will notify
Purchaser if such notice is received prior to the Closing Date.
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3.7. Validity of Contemplated Transaction.
To Seller's knowledge and belief, the execution and delivery of this
Agreement by the Seller do not, and the performance of this Agreement by Seller
will not (a) violate or result in the breach of any term, condition or provision
of or require the consent of any other party to any agreement, contract,
commitment, lease, plan, license, permit, authorization or other instrument,
document or understanding, oral or written, to which Seller is a party, by which
Seller may have rights or by which any of the assets or properties of Seller may
be bound or affected, or give any party with rights thereunder the right to
terminate, modify, accelerate or otherwise change the existing rights or
obligations of Seller thereunder except, in each case, which would not
reasonably be expected to have a material adverse affect on the Assets or the
Business; or (b) violate any existing law, ordinance, or governmental rule or
regulation to which Seller, the Business or the Assets is subject, (c) violate
any judgment, order, writ, injunction, decree or award of any court, arbitrator
or governmental or regulatory official, body or authority which is applicable to
Seller, the Business or the Assets or (d) the Articles of Incorporation or
By-Laws of Seller or any securities issued by Seller (but such representation is
not limited by Seller's knowledge and belief).
3.8. Restrictions.
To Seller's knowledge and belief, except as disclosed herein, Seller is
not a party to any indenture, agreement, contract, commitment, lease, plan,
license, permit, authorization or other instrument, document or understanding,
oral or written, or subject to any judgment, order, writ, injunction, decree or
award which materially adversely affects or materially restricts the Business as
it is currently operated or the Assets.
3.9. Conditions Affecting the Business.
To Seller's knowledge and belief, as of the date of this Agreement,
except as disclosed herein, there are no conditions existing with respect to the
Business, its markets, products, services, clients, customers, facilities,
personnel or suppliers which are known to Seller which would reasonably be
expected to adversely affect the Business, considered as a whole, other than
such conditions as may affect as a whole the industry in which the Business
engages.
3.10. Contracts and Commitments.
To Seller's knowledge and belief, Seller, in relation to the Business,
is not a party to any written or oral:
3.10.1. Agreements, contracts or commitments for the future purchase of,
or payment for, supplies or products, or for the performance of services
by a third party;
3.10.2 Agreements, contracts or commitments to sell or supply products
or to perform services except for those which Seller has performed and
for sales pursuant to the Backlog Schedule;
3.10.3. Agreements, contracts or commitments related exclusively to the
Business and not otherwise listed on the Schedules and continuing over a
period of more than six months from the date hereof;
3.10.4. Representative or sales agency agreement, contract or
commitment;
3.10.5. Agreements, contracts or commitments for any capital
expenditure;
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3.10.6. Agreement, contract or commitment limiting or restraining it
from engaging or competing in the Business nor is any officer or
employee of the Business subject to any such agreement, contract or
commitment;
3.10.7. License, franchise, distributorship or other agreement,
including those which relate in whole or in part to any patent,
trademark, or copyright or to any ideas, technical assistance or other
know-how of or used by the Business; or
3.10.8. Material agreement or contract not made in the ordinary course
of business.
To Seller's knowledge and belief, each of the agreements, contracts,
commitments, leases and other instruments, documents and undertakings listed on
the Schedules is valid and enforceable in accordance with is terms, the parties
thereto are in compliance with the provisions thereof, no party is in default in
the performance, observance or fulfillment of any material obligation, covenant
or condition contained therein and no event has occurred which with or without
the giving of notice or lapse of time, or both, would constitute a default
thereunder except, in each case, which would not reasonably be expected to have
a material adverse affect on the Assets or the Business..
3.11. No Third Party Options.
There are no existing agreements, options, commitments or rights with,
to or in any person to acquire the Business, any of the Assets or any interest
therein, except for this Agreement and those contracts entered into in the
normal course of business consistent with past practice for the sale of Seller's
products and services.
3.12. Broker.
No broker has been used in this transaction. All negotiations relating
to this Agreement and the transactions contemplated hereby have been carried on
by the Seller directly with the Purchaser and its counsel without the
intervention of any person acting on behalf of the Seller in such a manner as to
give rise to any valid claim against the Purchaser for a brokerage commission,
finder's fee or other like payment.
4. Representations and Warranties of the Purchaser
The Purchaser hereby represents and warrants to the Seller as follows:
4.1. Corporate Existence.
The Purchaser is duly organized, validly existing and in good standing
under the laws of the State of Delaware and is duly qualified to do business and
is in good standing in the Commonwealth of Massachusetts.
4.2. Corporate Power and Authorization.
The Purchaser has the corporate power to execute, deliver and perform
this Agreement. The execution, delivery and performance of this Agreement by the
Purchaser have been duly authorized by all necessary corporate action. This
Agreement has been duly executed and delivered by the Purchaser and constitutes
the legal, valid and binding obligation of the Purchaser enforceable against it
in accordance with its terms.
4.3. Validity of Contemplated Transactions, etc.
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The execution and delivery of this Agreement by the Purchaser does not,
and the performance of this Agreement by the Purchaser will not, violate or
conflict with (a) any existing law, ordinance, or governmental rule or
regulation to which the Purchaser is subject, (b) any judgment, order, writ,
injunction, decree or award of any court, arbitrator or governmental or
regulatory official, body or authority which is applicable to the Purchaser, or
(c) the charter documents or By-Laws of the Purchaser, or result in the breach
of any term, condition or provision of, or require the consent of any other
party to, any agreement, contract, commitment, lease, plan or other instrument,
document or understanding, oral or written, to which the Purchaser is a party or
by which the Purchaser is bound. No authorization, approval or consent, and no
registration or filing with, any governmental or regulatory official, body or
authority is required in connection with the execution, delivery and performance
of this Agreement by the Purchaser.
4.4. Broker.
No broker has been used in this transaction. All negotiations relating
to this Agreement and the transactions contemplated hereby have been carried on
by the Purchaser directly with the Seller without the intervention of any person
acting on behalf of the Purchaser in such a manner as to give rise to any valid
claim against the Seller for a brokerage commission, finder's fee or other like
payment.
4.5. Investigation by the Purchaser.
The Purchaser has conducted its own independent investigation, review
and analysis of the Business and the Assets, which investigation, review and
analysis were done by the Purchaser and its representatives. The Purchaser
acknowledges that it and its representatives have been provided access to the
records of the Business for such purpose. In entering into this Agreement, the
Purchaser acknowledges that it has relied, and shall be entitled to rely, solely
upon the aforementioned investigation, review and analysis, and the Purchaser
further: (a) acknowledges that except as set forth herein, none of the Seller or
any of its directors, officers, shareholders, employees, affiliates, controlling
persons, agents, advisors or representatives makes or has made any
representation or warranty, either express or implied, as to the accuracy or
completeness of any of the information provided or made available to the
Purchaser or its directors, officers, employees, affiliates, controlling
persons, agents or representatives; and (b) agrees, to the fullest extent
permitted by law, that none of the Seller or any of its directors, officers,
employees, shareholders, affiliates, controlling persons, agents, advisors or
representatives shall have any liability or responsibility whatsoever to the
Purchaser or its directors, officers, employees, affiliates, controlling
persons, agents or representatives on any basis (including, without limitation,
in contract or tort, under federal or state securities laws or otherwise) based
upon any information provided or made available, or statements made (including,
without limitation, in materials furnished by the Seller, in presentations by
the Seller's management or otherwise), to the Purchaser or its directors,
officers, employees, affiliates, controlling persons, agents or representatives
on any basis (or any omissions therefrom), except that the foregoing limitations
shall not apply to the extent the Seller makes the specific representations and
warranties set forth in Section 3 of this Agreement, but always subject to the
limitations and restrictions contained herein. The Purchaser also agrees and
understands that, except for the representations and warranties set forth in
Section 3 of this Agreement, there are no representations or warranties
whatsoever, express or implied, given by the Seller, as to the condition,
quality, merchantability or fitness of any of the Assets, and all
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such assets shall be "as is, "where is" and "with all faults". Purchaser agrees
and understands that the Seller shall not be liable for any loss, liability or
damage suffered or incurred by the Purchaser resulting from any event relating
to a breach of any representation or warranty if the Purchaser or any of its
directors, officers, shareholders, employees, affiliates, controlling persons,
agents, advisors or representatives had knowledge on or before the Closing Date
of such event.
5. Additional Covenants of the Parties
5.1. Non-Competition
Seller acknowledges and agrees that a material inducement to Purchaser
to enter into this Agreement is that Seller would no longer compete in the
Business. Thus, Seller on behalf of itself and any current or future affiliate,
covenants and agrees that it shall not compete with the Business after the
Closing Date. Notwithstanding the foregoing, nothing herein shall prohibit (i)
any party that acquires voting control of the Seller through a merger or stock
acquisition, or acquires all or substantially all of the assets of Seller, from
competing with the Business or (ii) Seller from continuing its business
relationship with SNECMA which may include competing with the Business.
5.2. Interference with the Business.
After the Closing, (i) Seller shall not take any action or engage in any
practice which disparages Purchaser, its products or its employees and which
would be reasonably likely to impair the relationships of the Purchaser with any
customers, employees, suppliers or other persons having any business dealings
with the Purchaser and (ii) Purchaser shall not take any action or engage in any
practice which disparages Seller, its products or its employees and which would
be reasonably likely to impair the relationships of the Seller with any
customers, employees, suppliers or other persons having any business dealings
with the Seller.
5.3. In General.
If any employees of Seller become employees of Purchaser as part of this
contemplated transaction or otherwise, it is understood that Seller shall be
responsible for any and all wages, vacations, holidays, bereavement pay, jury
duty pay, disability income, supplemental unemployment benefits, personal or
sick leave pay, payroll expenses and, other benefits under any of the Seller's
employee benefit plans, arising out of the employment of employees ("Employees")
by Seller which are earned prior to the date which Employees are no longer
employed by Seller.
5.4. Worker's Compensation/OSHA.
5.4.1. Seller shall retain responsibility for all workers' compensation
claims filed by Employees either prior to or subsequent to the Closing
Date for injuries sustained prior to the Closing Date. Purchaser shall
be responsible for all workers' compensation claims related to the
Business, which are not the responsibility of Seller under the preceding
sentence.
5.4.2. Seller shall retain responsibility for any monetary fines or
penalties assessed under the Occupational Safety and Health Act ("OSHA")
and similar state and local statutes and ordinances and that are
assessed with respect to citations outstanding at the Closing Date
("Outstanding Citations"), which citations relate to the Business or to
the
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Employees. Purchaser shall promptly take, and shall assume
responsibility for, all remedial and non-monetary action required as a
result of any Outstanding Citations but Seller shall indemnify and hold
harmless Purchaser from all costs incurred as a result of such actions.
Purchaser shall be responsible for all citations relating to the
Business or to the Employees made after the Closing Date.
5.5. Grievances.
Seller shall be responsible for (i) the resolution of all filed employee
grievances attributable to events occurring prior to the Closing Date and (ii)
the payment of any amounts in the nature of back pay or employee compensation in
respect of such grievances for periods before or after the Closing Date and all
other expenses incident thereto.
5.6. Misdirected payments.
The parties agree that any payments received by either of them that are
identified to invoices of the other or otherwise due the other shall promptly be
remitted to the other. Unless some other allocation or distribution of payment
is apparent on the face of the remittance, all payments shall be applied first
to accounts receivable generated prior to the Closing Date. Purchaser and Seller
shall exchange information concerning xxxxxxxx and payments at such intervals
and for such period of time as shall be necessary to facilitate the
administration of this agreement as to collection of accounts receivable.
5.7. Audit Rights.
Purchaser agrees to maintain a complete and accurate written record of
all sales related to the Business and to make these records or reports available
to Seller upon request. Seller shall have the right through its accredited
auditing representatives to make an examination and audit, during normal
business hours at Purchaser's facilities, upon advance written notice and so as
not to interfere with Purchaser's business operations, not more frequently than
semi-annually, of all records kept pursuant to this Agreement by Purchaser and
such other records and accounts as may under recognized accounting practices
contain information bearing upon any payments due under this Agreement. Seller
shall provide at least 30 days written notice prior to such audit. Prompt
adjustment shall be made by Purchaser and shall be paid within 30 days upon
receipt of written verification or invoicing detailing any such error or
omission to compensate for any errors or omissions disclosed by such examination
or audit.
6. Miscellaneous Provisions
6.1. Entire Agreement; Amendment; Assignment.
This Agreement and the exhibits and schedules appended hereto and the
Non-Disclosure Agreement between the parties dated June 5, 2002, embody and
constitute the entire understanding between the parties with respect to the
transactions contemplated herein, and all prior agreements, understandings,
representations and statements, oral or written, are merged into this Agreement.
Neither this Agreement nor any provision hereof may be waived, modified,
amended, discharged assigned or terminated except by an instrument signed by the
party against whom the enforcement of such waiver, modification, amendment,
discharge assignment or termination is sought, and then only to the extent set
forth in such instrument.
6.2. Termination.
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6.2.1. This Agreement may be terminated at any time prior to the
Closing:
(i) by mutual written agreement of Purchaser and Seller;
(ii) by either Purchaser or Seller if the Closing shall not
have been consummated on or before September 25, 2002; or
(iii) by either Purchaser or Seller if there shall be any law
or regulation that makes the consummation of the transactions
contemplated hereby illegal or otherwise prohibited or if
consummation of the transactions contemplated hereby would
violate any non-appealable final order, decree or judgment of
any court or governmental body having competent jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses (ii)
or (iii) shall give notice of such termination to the other party.
6.2.2. If this Agreement is terminated as permitted by Section 6.2.1.,
such termination shall be without liability of either party (or any
director, officer, employee, affiliate, controlling person, agent,
advisor or representative of such party) to the other party to this
Agreement; provided, however, if such termination shall result from the
willful failure of either party to fulfill a condition to the
performance of the obligations of the other party or to perform a
covenant of this Agreement or from a willful breach by either party to
this Agreement, such party shall be fully liable for any and all losses,
liabilities or damages incurred or suffered by the other party as a
result of such failure or breach.
6.2.3 If Purchaser fails to meet its payment obligations pursuant to
Section 2.1.1 hereof, Seller may terminate the exclusive license granted
pursuant to Section 1.4 hereof and/or the noncompetition obligation pursuant to
Section 5.1 hereof, by providing written notice of its intent to terminate. If
Purchaser has not made the requisite payment within thirty (30 days of receipt
of notice of termination, the exclusive license shall terminate and Purchaser
shall have no right thereafter to make, have made, use, market, sell, have sold,
import, distribute, rent, lease or sublicense the Intellectual Property.
6.3. Notices.
All notices, demands, requests, or other communications which may be or
are required to be given, served or sent by either party to the other party
pursuant to this Agreement, shall be in writing and shall be hand delivered,
sent by guaranteed overnight parcel express service or mailed by registered or
certified mail, return receipt requested, postage prepaid, or transmitted by or
telecopy (with a confirming copy sent by another permitted means), addressed as
follows:
6.3.1. If to Seller:
Xxxxx X. XxXxxxxx
Executive Vice President, Finance
and Chief Financial Officer
SIPEX Corporation
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
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with a copy (which shall not constitute notice) to its counsel:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
6.3.2. If to Purchaser:
Xxxxx X'Xxxx
SATCON Electronics Corporation
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
with a copy (which shall not constitute notice) to his counsel:
Xxxxxx X. Xxxxx, Esq.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Each party may designate by notice in writing a new address to
which any notice, demand, request or communication may thereafter be so
given, served or sent. Each notice, demand, request, or communication
which shall be mailed or telefaxed in the manner described above, or
which shall be delivered to a telegraph company, shall be deemed
sufficiently given, served, sent or received for all purposes at such
time as it is delivered to the addressee (with the return receipt, the
delivery receipt or, with respect to a telefax, the answer back being
deemed conclusive evidence of such delivery) or at such time as delivery
is refused by the addressee upon presentation.
6.4. Governing Law.
This Agreement shall be governed by, and construed in accordance with,
the laws of the Commonwealth of Massachusetts, without giving effect to the
conflicts of laws provisions thereof.
6.5. Captions.
The captions in this Agreement are inserted for convenience of reference
only and in no way define, describe or limit the scope or intent of this
Agreement or any of the provisions hereof.
6.6. Benefit.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns. If
this Agreement is assigned by Purchaser in accordance with the terms hereof,
Purchaser shall remain liable for all obligations hereunder.
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6.7. Reserved.
6.8 Use of Corporate Names and Trademarks.
Notwithstanding anything to the contrary contained in this Agreement, it
is expressly agreed that (i) Purchaser is not purchasing, acquiring or otherwise
obtaining, any right, title or interest in any trade names, trademarks,
identifying logos or service marks of Seller or anything confusingly similar
thereto (collectively, "Sipex's Trademarks and Logos"), and (ii) neither
Purchaser nor its affiliates shall make any use of Sipex's Trademarks and Logos
from and after the Closing.
6.9. Construction.
As used in this Agreement, the masculine shall include the feminine and
neuter, the singular shall include the plural and the plural shall include the
singular, as the context may require.
6.10. Waiver.
Neither the waiver by either of the parties hereto of a breach of or a
default under any of the provisions of this Agreement, nor the failure of either
of the parties, on one or more occasions, to enforce any of the provisions of
this Agreement or to exercise any right or privilege hereunder shall thereafter
be construed as a waiver of any subsequent breach or default of a similar
nature, or as a waiver of any such provisions, rights, or privileges hereunder.
6.11. Non-Business Days.
If any obligation of a party hereto falls due on a Saturday, Sunday or
legal holiday recognized by the United States Government or the Commonwealth of
Massachusetts, then such obligation shall automatically be postponed until the
next day which is not a Saturday, Sunday or legal holiday.
6.12. Cost and Expenses.
Except for costs and expenses specifically assumed by a party under this
Agreement, each party hereto shall pay its own expenses incident to this
Agreement and the transactions contemplated hereunder.
6.13. Seller Indemnity.
To the extent not otherwise provided herein, Seller agrees to defend,
indemnify and hold harmless Purchaser from and against:
6.13.1. Any and all debts, liabilities and obligations arising out of or
in any way relating to the operation of the Business in relation
to the Assets accruing prior to the Closing Date or from events
occurring prior to the Closing with respect to the ownership,
management, operation and maintenance of the Business in
relation to the Assets, other than the liabilities and
obligations assumed by Purchaser pursuant to Section 1.3.2
hereof;
6.13.2. Any actual loss, liability or damage suffered or incurred by
Purchaser as a result of any material breach of any
representation or warranty contained in this Agreement by Seller
and all reasonable costs and expenses (including reasonable
attorneys' fees) incurred by Purchaser in connection with any
action, suit,
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proceeding, demand, assessment or judgment incident to any of
the matters indemnified against in this provision, other than
the liabilities and obligations assumed by Purchaser pursuant to
Section 1.3.2 hereof.
6.14. Purchaser Indemnity.
To the extent not otherwise provided herein or not inconsistent with any
other provision hereof, Purchaser agrees to defend, indemnify and hold Seller
harmless from and against:
6.14.1. All debts, liabilities and obligations arising out of or in any
way relating to the operation of the Business subsequent to the Closing
or from events occurring subsequent to the Closing with respect to the
ownership, management, operation, maintenance and repair of the Business
but excluding warranty and product liability claims for products sold
prior to the date of Closing.
6.14.2. Any actual loss, liability, or damage suffered or incurred by
Seller as a result of any material breach of any representation or
warranty contained in this Agreement by Purchaser; and
6.14.3. Failure of Purchaser to pay or perform any liability or
obligation required to be paid or performed by it pursuant to the terms
of this Agreement.
6.14.4. All reasonable costs and expenses (including reasonable
attorneys' fees) incurred by Seller in connection with any suit,
proceeding, demand, assessment or judgment incident to any of the
matters indemnified against in this provision.
6.15. Notice Regarding Indemnities, Limitation of Indemnity, Etc.
a) If any legal proceeding shall be instituted or any claim
or demand shall be asserted by any person in respect of which
indemnification may be sought from an indemnifying party under
the provisions of this Section 6.13 or 6.14, the indemnified
party shall cause prompt written notice thereof to be given to
the indemnifying party. The defense of any such claim or claims
shall be undertaken by the indemnifying party, with counsel
reasonably satisfactory to the indemnified party; provided,
however, that the indemnified party shall have the right, at its
option, jointly to control the defense of any such claim, at its
own expense. The indemnifying party shall not be responsible for
any settlement effected without its consent of any such claim,
litigation or proceeding which may be sought hereunder, which
consent shall not be unreasonably withheld by the indemnifying
party.
b) No claim for indemnification shall be made pursuant to
Section 6.13 or Section 6.14 unless the aggregate amount of all
such claims under such Section 6.13 or Section 6.14 exceeds
$50,000.
c) The sole monetary remedy for any losses suffered in
connection with this Agreement shall be those set forth in
Section 6.13 through 6.15.
Notwithstanding anything to the contrary in this Agreement, the maximum
liability of one party to the other under this Agreement (including any
liability of one party to the other under Sections 6.13 and 6.14 hereof) shall
be limited to $1,050,000.00.
6.16. Survival of Representations.
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Each of the representations and warranties made herein shall survive the
Closing, and for a period of one (1) year thereafter. Any action to be brought
for breach of any representation or warranty shall be brought only during the
period in which it has survived.
6.17. Transfer Taxes.
Notwithstanding anything to the contrary set forth in this agreement,
any transfer, documentary, sales, use, stamp, or other taxes assessed upon or
with respect to the transfer of the Assets to Purchaser and any recording or
filing fees with respect thereto shall be borne and paid by Purchaser, and
Purchaser shall promptly reimburse Seller for any such amounts paid by Seller.
6.18. Allocation of Taxes.
All, personal property taxes and similar ad valorem obligations levied
with respect to the Assets for a taxable period which includes (but does not end
on) the Closing Date shall be apportioned between Seller and Purchaser as of the
Closing Date based on the number of days of such taxable period included in the
pre-Closing tax period and the number of days of such taxable period included in
the post-Closing tax period. Within 90 days after the Closing Date, Seller and
Purchaser shall present a statement to the other setting forth the amount of
reimbursement to which each is entitled under this Section 6.18 together with
such supporting evidence as is reasonably necessary to calculate such amount to
be reimbursed. Such amount shall be paid by the party owing it to the other
within 10 days after delivery of such statement. Thereafter, Seller shall notify
Purchaser upon receipt of any xxxx for real or personal property taxes relating
to the Assets, part or all of which are attributable to the post-Closing tax
period, and shall promptly deliver such xxxx to Purchaser who shall pay the same
to the appropriate governmental authority; provided that if such xxxx covers the
pre-Closing tax period, Seller shall also remit prior to the due date of
assessment to Purchaser payment for the proportionate amount of such xxxx that
is attributable to the pre-Closing tax period. If either Seller or Purchaser
shall thereafter make a payment for which it is entitled to reimbursement under
this Section 6.18, the other party shall make such reimbursement promptly but in
no event later than 30 days after the presentation of a statement setting forth
the amount of reimbursement to which the presenting party is entitled along with
such supporting evidence as is reasonably necessary to calculate the amount of
reimbursement.
6.19. Public Announcements; Press Release.
Prior to the Closing, except as otherwise agreed to by the parties, the
parties shall not issue any report, statement or press release or otherwise make
any public statements with respect to this Agreement and the transactions
contemplated hereby, except as in the reasonable judgment of the party may be
required by law or the rules or regulations of a securities exchange, in which
case the parties will use their best efforts to reach mutual agreement as to the
language of any such report, statement or press release. Upon the Closing, the
Seller and the Purchaser will consult with each other with respect to the
issuance of a joint report, statement or press release with respect to this
Agreement and the transactions contemplated thereby.
6.20. Counterparts.
To facilitate execution, this Agreement may be executed in as many
counterparts as may be required; and it shall not be necessary that the
signature of, or on behalf of, each party, or that the signatures of all persons
required to bind any party, appear on each counterpart; but it shall
17
be sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more such
counterparts. All counterparts shall collectively constitute a single agreement.
6.21. Exhibits and Schedules.
Each Exhibit and Schedule hereto is incorporated by reference and made a
part of this Agreement.
6.22 SNECMA.
For the avoidance of doubt, and notwithstanding anything herein to the
contrary, Seller shall retain all assets related to SNECMA and all rights
necessary to continue its business relationship with SNECMA and Purchaser agrees
that Seller shall not be prohibited from continuing its business relationship
with SNECMA notwithstanding the fact that such relationship may be competitive
with the Business.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SIPEX CORPORATION SATCON ELECTRONICS, INC.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
---------------------------- ------------------------------
Title: Executive Vice President Title: VP and Chief Operating Officer
---------------------------- ------------------------------
Date: 09/27/02 Date: 09/27/02
---------------------------- ------------------------------
