EXHIBIT 10(b)
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CONTRIBUTION AGREEMENT
between
XXXXXXXXX INDUSTRIES LLC
and
XXXXXXXXX INDUSTRIES INC.
Dated: January __, 1997
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TABLE OF CONTENTS
ARTICLE I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
CONTRIBUTION OF ASSETS; ASSUMPTION OF LIABILITIES
1.01 Contribution of Assets
(a) Contributed Assets
(b) Excluded Assets
1.02 Liabilities
(a) Assumed Liabilities
(b) Retained Liabilities
1.03 Recordation of Deeds and Further Assurances; Post-Closing
Cooperation
(a) Recordation of Deeds and Further Assurances
(b) Power of Attorney
(c) Books and Records
(d) Tax Returns, etc.
(e) Third-Party Consents
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
ISSUANCE OF COMMON STOCK IN CONSIDERATION FOR CONTRIBUTION
2.01. Issuance of Common Stock
2.02. Tax Treatment
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
EFFECTIVENESS OF AGREEMENT
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
INDEMNIFICATION
4.01 Other Indemnification
4.02 Method of Asserting Claims
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
DEFINITIONS
5.01 Definitions
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
MISCELLANEOUS
6.01 Notices
6.02 Bulk Sales Act
6.03 Entire Agreement
6.04 Waiver
6.05 Amendment
6.06 No Third Party Beneficiary
6.07 No Assignment; Binding Effect
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6.08 Headings
6.09 Governing Law
6.10 Counterparts
Schedule A -- Semi-Finished Buses List
Exhibit A -- Xxxxx County Corporate Warranty Deed
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CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this "Agreement"), dated as of
January ___, 1997, between XXXXXXXXX INDUSTRIES LLC, an Indiana limited
liability company ("Xxxxxxxxx"), and XXXXXXXXX INDUSTRIES INC., a Delaware
corporation (the "Company");
WITNESSETH:
WHEREAS, Xxxxxxxxx is engaged in the business of designing,
manufacturing and selling school buses for use by public school districts
and private schools and other vehicles known as step-vans (the "Business"),
and is also engaged in the Shuttle Bus Business;
WHEREAS, the parties hereto are also parties to that certain
Investment Agreement dated as of December 23, 1996 among Recovery Investors
II, L.P. ("REI II"), Spartan Motors, Inc., a Michigan corporation
("Spartan"; REI II and Spartan being collectively referred to herein as the
"Investors"), Xxxxxxxxx, the Trust, Xxxxxx and the Company (as in effect on
the date hereof, the "Investment Agreement"), which Investment Agreement
contemplates that, immediately following (i) the contribution by Xxxxxxxxx
to the Company of the Contributed Assets (as defined in Section 1.01(a)
hereof) in exchange for 33-1/3% of the total number of shares of Common
Stock to be outstanding upon consummation of the transactions contemplated
by the Investment Agreement and (ii) the assignment by Xxxxxxxxx to the
Company and the assumption by the Company of the Assumed Liabilities (as
defined in Section 1.02(a) hereof), each of the Investors will purchase
from the Company Common Stock representing 33-1/3% of the total number of
shares of Common Stock to be outstanding upon consummation of the
transactions contemplated by the Investment Agreement;
WHEREAS, Xxxxxxxxx desires to contribute, transfer, sell and
assign the Contributed Assets and the Assumed Liabilities to the Company
and the Company desires to accept all of the Contributed Assets and to
assume all of the Assumed Liabilities, all upon the terms and conditions
set forth herein; and
WHEREAS, capitalized terms used but not otherwise defined herein
have the respective meanings set forth in the Investment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
CONTRIBUTION OF ASSETS; ASSUMPTION OF LIABILITIES
1.01 CONTRIBUTION OF ASSETS.
(a) CONTRIBUTED ASSETS. Effective as of the Effective Time,
Xxxxxxxxx hereby sells, transfers, conveys and assigns to the Company all
of Xxxxxxxxx'x right, title and interest in, to and under the Contributed
Assets. The term "Contributed Assets" means, collectively, all the
business, properties, assets, Contracts, vendor and warranty recovery
rights and other rights of Xxxxxxxxx of whatever kind or nature, real or
personal, tangible or intangible, owned by Xxxxxxxxx at the Effective Time,
other than the Excluded Assets.
(b) EXCLUDED ASSETS. Notwithstanding anything in this Agreement
to the contrary, the following assets, properties, Contracts and rights of
Xxxxxxxxx (the "Excluded Assets") shall be excluded from and shall not
constitute Contributed Assets:
(i) XXXXXXXX FACILITY. Except as and to the extent otherwise
provided in this Section 1.01(b), (1) the Xxxxxxxx Facility, (2)
Xxxxxxxxx'x lease of the real property located at 0000 Xxxxx Xxxxxx,
Xx Salles 41, Bloomington, Indiana (the "Bloomington Lease") and (3)
all Intellectual Property, prototypes and related items of tangible
personal property used or held by Xxxxxxxxx for use in connection with
the Shuttle Bus Business.
(ii) SEMI-FINISHED BUSES. The buses listed in Schedule A hereto
which, as of the Closing Date, are included in Xxxxxxxxx'x inventory
as Semi-Finished Buses (the "Retained Buses"), all accounts receivable
attributable to or due in connection with any such Retained Bus, and
all items of raw material and work in process inventory in or on any
such Retained Bus or necessary to complete the production of such
Retained Bus and located at the Xxxxxxxx Facility, and any and all
warranty claims against parts suppliers arising prior to such Retained
Bus having become a Federallled Bus and in connection with any such
Retained Bus and the items of raw material and work in process
inventory ascribed to it.
(iii) BENEFIT PLANS. All Benefit Plans, Plans and similar plans
and arrangements between Xxxxxxxxx and its employees employed at the
Xxxxxxxx Facility.
(iv) COLLECTIVE BARGAINING AGREEMENTS. All collective bargaining
agreements and similar labor Contracts pertaining exclusively to the
Xxxxxxxx Facility (collectively, the "Labor Contracts").
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(v) CORPORATE RECORDS. The minute books, stock transfer or
similar books, company seals and financial records of Xxxxxxxxx.
(vi) PERMITS, LICENSES AND INTELLECTUAL PROPERTY. All
Environmental Permits, Licenses and Intellectual Property that are
necessary solely in connection with the ownership, use and operation
of the Excluded Assets, PROVIDED that the name "Xxxxxxxxx" shall not
constitute an Excluded Asset. The Company hereby authorizes Xxxxxxxxx
to use the name "Xxxxxxxxx" and any related Intellectual Property as
and to the extent necessary to allow Xxxxxxxxx to comply with Sections
4.14 and 4.16 of the Investment Agreement as it pertains to the
Retained Buses.
(vii) TAX REFUNDS. All refunds or credits, if any, of Taxes due
to Xxxxxxxxx with respect to periods prior to the Closing, other than
any such refund or credit attributable to the Indiana property taxes
described in the parenthetical clause in Section 9.1(iv) of the
Investment Agreement.
(viii) THIS AGREEMENT. Xxxxxxxxx'x rights under this Agreement
or in connection with this Agreement, the Investment Agreement or any
other Operative Agreement, or the consummation of any of the
transactions contemplated hereby or thereby.
(ix) LITIGATION CLAIMS. Any rights (including indemnification)
and claims and recoveries under litigation of Xxxxxxxxx relating
exclusively to the Excluded Assets described in clauses (i) through
(viii) of this paragraph (b).
1.02 LIABILITIES.
(a) ASSUMED LIABILITIES. In connection with the sale, transfer,
conveyance and assignment of the Contributed Assets pursuant to this
Agreement, the Company hereby assumes and agrees to pay, perform and
discharge when due all of the Liabilities of Xxxxxxxxx arising in
connection with the operation of the Business, as the same shall exist on
the Closing Date (the "Assumed Liabilities"), other than the Retained
Liabilities.
(b) RETAINED LIABILITIES. Notwithstanding anything in this
Agreement to the contrary, the following Liabilities of Xxxxxxxxx (the
"Retained Liabilities") shall be retained by Xxxxxxxxx and shall not
constitute Assumed Liabilities:
(i) THIS AGREEMENT. Any and all Liabilities of Xxxxxxxxx under
or in connection with this Agreement, the Investment Agreement or any
other Operative Agreement, or the consummation of any of the
transactions contemplated hereby or thereby.
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(ii) XXXXXXXX FACILITY; SHUTTLE BUS BUSINESS. Any and all
Liabilities relating to the ownership, operation or use of the
Xxxxxxxx Facility, including, without limitation, all Liabilities in
respect of Environmental Claims relating to the ownership, operation
or use of the Xxxxxxxx Facility and all Liabilities in respect of the
Shuttle Bus Business.
(iii) TAXES. Any and all Liabilities for Taxes of Xxxxxxxxx and
its predecessors and affiliates (other than the Company), including
any Lien on the Assets and Properties of Xxxxxxxxx resulting from such
a Liability, PROVIDED that the Liability for Indiana property taxes
described in the parenthetical clause in Section 9.1(iv) of the
Investment Agreement shall not constitute a Retained Liability.
(iv) CII LIABILITIES. Any and all Liabilities of CII (whether
for Taxes or otherwise) and any Liability of Xxxxxxxxx under or in
respect of the CII Stock Purchase Agreement and the transactions
consummated thereunder.
(v) NEWCOURT INVENTORY FINANCING ARRANGEMENT. (a) Any and all
Liabilities of Xxxxxxxxx under the Newcourt inventory financing
arrangement in respect of the period prior to the Closing , other than
any such Liabilities specified in clauses (c)(i)(w), (c)(i)(x),
(c)(i)(y) and (c)(i)(z) of Section 4.9 of the Investment Agreement,
and (b) any and all Liabilities of Xxxxxxxxx under the Operating
Agreement with Newcourt dated September 30, 1994, other than those
expressly assumed by the Company in the Assignment and Assumption
Agreement relating thereto.
(vi) PRODUCT WARRANTY AND PRODUCT LIABILITY CLAIMS. Any and all
Liabilities of Xxxxxxxxx resulting from warranty claims, and any and
all product liability claims or other Actions or Proceedings commenced
or threatened, in connection with each Retained Bus, PROVIDED that
upon the transfer of any such Retained Bus from Xxxxxxxxx to the
Company in accordance with Section 4.16(c) of the Investment
Agreement, any and all of such product warranty and product liability
claims shall cease to be Retained Liabilities and shall constitute
Assumed Liabilities, and PROVIDED FURTHER that upon the transfer of
any Retained Bus back from the Company to Xxxxxxxxx in accordance with
Section 4.16(e) of the Investment Agreement, any and all of such
product warranty and product liability claims shall cease to
constitute Assumed Liabilities and shall constitute Retained
Liabilities unless and until such Retained Bus is resold in accordance
with Section 4.16(e).
(vii) OBLIGATIONS UNDER CONTRACTS AND LICENSES. Any and all
Liabilities of Xxxxxxxxx under Contracts or Licenses not constituting
Contributed Assets and arising and to be performed on or after the
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Closing Date, and any and all Liabilities of Xxxxxxxxx under the
Bloomington Lease and the Labor Contracts.
(viii) AMERICAN PRINT TOWEL LIABILITIES. Any and all Liabilities
in connection with Xxxxxxxxx'x arrangements with American Print Towel
as described in Section 9.1(iii)(D) of the Investment Agreement.
(ix) BENEFIT PLANS. Any and all Liabilities in connection with
all Benefit Plans, Plans and similar plans and arrangements between
Xxxxxxxxx and its employees employed at the Xxxxxxxx Facility.
The Company shall have no liability for the Retained Liabilities.
Xxxxxxxxx shall discharge in a timely manner or shall make adequate
provision for all of its Retained Liabilities, PROVIDED that Xxxxxxxxx
shall have the ability to contest, in good faith, any claim of liability
asserted in respect thereof by any Person.
1.03 RECORDATION OF DEEDS AND FURTHER ASSURANCES; POST-CLOSING
COOPERATION.
(a) RECORDATION OF DEEDS AND FURTHER ASSURANCES. On the Closing
Date, Xxxxxxxxx shall execute, deliver and arrange for the immediate
recordation (which in any event shall take place within 1 Business Day of
the Closing), in the appropriate jurisdictions, of the Xxxxx County
Corporate Warranty Deed with respect to the Richmond Facility.
At any time or from time to time after the Closing, at the
Company's request and without further consideration, Xxxxxxxxx shall, or
shall cause its Affiliates to, execute and deliver to the Company such
proper instruments of sale, transfer, conveyance, assignment and
confirmation, provide such materials and information and take such other
actions as the Company may reasonably deem necessary or desirable in order
more effectively to transfer, convey and assign to the Company and to
confirm the Company's title to, all of the Contributed Assets, and, to the
full extent permitted by Law, to put the Company in actual possession and
operating control of the Business and the Contributed Assets and to assist
the Company in exercising all rights with respect thereto, and otherwise to
cause Xxxxxxxxx to fulfill its obligations under this Agreement.
(b) POWER OF ATTORNEY. Effective on the Closing Date, Xxxxxxxxx
constitutes and appoints, and may cause its Affiliates to constitute and
appoint, the Company the true and lawful attorney of Xxxxxxxxx, with full
power of substitution, in the name of Xxxxxxxxx, but on behalf of and for
the benefit of the Company: (i) to demand and receive from time to time all
or any of the Contributed Assets and to make endorsements and give receipts
and releases for and in respect of the same or any part thereof; (ii) to
institute, prosecute, compromise and settle any and all Actions or
Proceedings that the Company may deem proper in order to collect, assert or
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enforce any claim, right or title of any kind in or to the Contributed
Assets, (iii) to defend, compromise and settle any and all Actions or
Proceedings in respect of any of the Contributed Assets; and (iv) to do all
such acts and things in relation to the matters set forth in the preceding
clauses (i) through (iii) as the Company shall deem desirable. Xxxxxxxxx
acknowledges that the appointment hereby made or caused to be made and the
powers hereby granted are coupled with an interest and are not and shall
not be revocable by it in any manner or for any reason. Xxxxxxxxx shall,
or shall cause its Affiliates to, deliver to the Company at the Closing an
acknowledged power of attorney to the foregoing effect, limited to the
Contributed Assets, executed by Xxxxxxxxx or any such Person. The Company
shall indemnify and hold harmless Xxxxxxxxx or such Person from any and all
Losses caused by or arising out of any breach of Law by the Company in its
exercise of such power of attorney.
(c) BOOKS AND RECORDS. Following the Closing, Xxxxxxxxx and the
Company will afford each other and their respective counsel and accountants
reasonable access to the books, records and other data relating to the
Business (the "Business Records") in the possession of each thereof with
respect to periods prior to the Closing and the right to make copies and
extracts therefrom, to the extent that such access may be reasonably
required by the requesting party in connection with (i) the preparation of
tax returns, (ii) the determination or enforcement of rights and
obligations under this Agreement, (iii) compliance with the requirements of
any Governmental or Regulatory Authority, (iv) the determination or
enforcement of the rights and obligations of any Indemnifying or
Indemnified Party or (v) in connection with any actual or threatened Action
or Proceeding. Each of Xxxxxxxxx and the Company further agree that, for a
period extending six years after the Closing Date, it shall not destroy or
otherwise dispose of any Business Records unless (x) it shall first offer
in writing to surrender such Business Records data to the other party
hereto and (y) the other party hereto shall not agree in writing to take
possession thereof during the 10-Business-Day period after such offer is
made.
(d) TAX RETURNS, ETC. If, in order properly to prepare its tax
returns, other documents or reports required to be filed with Governmental
Authorities or its financial statements, to respond to information demands
or requests from Governmental Authorities or from third parties involving
obligations arising under this Agreement, or to fulfill its obligations
hereunder, it is necessary that the Company be furnished with additional
information, documents or records relating to the Business not referred to
in paragraph (c) above, and such information, documents or records are in
the possession or control of Xxxxxxxxx, the Company or its respective
Representatives, Xxxxxxxxx, the Company or such Representative, as the case
may be, shall use its best efforts to furnish or make available such
information, documents or records (or copies thereof) at the recipient's
request, cost and expense.
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(e) THIRD-PARTY CONSENTS. To the extent that any Business
Contract or Business License is not assignable without the consent of
another party, this Agreement shall not constitute an assignment or an
attempted assignment thereof if such assignment or attempted assignment
would constitute a breach thereof. Xxxxxxxxx shall use its reasonable
commercial efforts to obtain the consent of such other party to the
assignment of any such Business Contract or Business License to the Company
in all cases in which such consent is or may be required for such
assignment. If any such consent shall not be obtained, Xxxxxxxxx shall
cooperate with the Company in any reasonable arrangement designed to
provide the Company with the benefits intended to be assigned to it under
the relevant Business Contract or Business License. If and to the extent
that such an arrangement cannot be made, the Company shall have no
obligation pursuant to Section 1.02 or otherwise with respect to any such
Business Contract or Business License. The provisions of this
Section 1.03(e) shall not affect the right of the Investors not to
consummate the transactions contemplated by the Investment Agreement if the
condition contained in Section 6.6 thereof has not been satisfied.
ARTICLE II
ISSUANCE OF COMMON STOCK IN CONSIDERATION FOR CONTRIBUTION
2.01. ISSUANCE OF COMMON STOCK.
For and in consideration of the sale, transfer, conveyance,
assignment and delivery to the Company all of Xxxxxxxxx'x right, title and
interest in, to and under the Contributed Assets as set forth in Article I,
and in addition to the assumption by the Company of the Assumed Liabilities
as set forth in Article I, the Company will, on the Closing Date (but in
any event not prior to the Effective Time), issue and deliver to Xxxxxxxxx,
certificates representing 300 shares of Common Stock, which shares shall
represent 33-1/3% of the total number of shares of Common Stock outstanding
after giving effect to the transactions contemplated by the Investment
Agreement. All of such shares of Common Stock, when so issued and
delivered, shall be duly issued, fully paid and non-assessable.
2.02. TAX TREATMENT.
The parties hereto intend that the above-described issuance of
Common Stock for and in consideration of the above-described sale,
transfer, conveyance, assignment and delivery to the Company all of
Xxxxxxxxx'x right, title and interest in, to and under the Contributed
Assets qualify as an exchange under Section 351 of the Code.
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ARTICLE III
EFFECTIVENESS OF AGREEMENT
On the Closing Date, as of the time immediately prior to the
consummation of the Closing (the "Effective Time"), subject only to (1) the
due execution and delivery of the Investment Agreement and (2) the prior or
contemporaneous satisfaction (or waiver by the appropriate Person) of all
of the conditions set forth in Article VI and Article VII of the Investment
Agreement, this Agreement shall be deemed to be effective and consummated
and shall be binding on and enforceable against the parties hereto,
PROVIDED that if the Closing shall for any reason not occur on the date
hereof, this Agreement shall be deemed to be rescinded and shall be void
and of no force or effect.
ARTICLE IV
INDEMNIFICATION
4.01 OTHER INDEMNIFICATION.
(a) In addition to the indemnification provided for in the
Investment Agreement, Xxxxxxxxx (the "Indemnifying Party" for purposes of
this Section 4.01(a) and of Article 9 of the Investment Agreement) shall
indemnify the Company and its officers, directors, employees, agents,
shareholders and Affiliates (the Company and each such Person, an
"Indemnified Party" for purposes of this Section 4.01(a) and of Article 9
of the Investment Agreement) in respect of, and hold each of them harmless
from and against, any Retained Liability.
(b) The Company (the "Indemnifying Party" for purposes of this
Section 4.01(b) and of Article 9 of the Investment Agreement) shall
indemnify Xxxxxxxxx and its officers, directors, employees, agents,
shareholders and Affiliates (Xxxxxxxxx and each such Person, an
"Indemnified Party" for purposes of this Section 4.01(b) and of Article 9
of the Investment Agreement) in respect of, and hold each of them harmless
from and against, any Assumed Liability; PROVIDED, HOWEVER, that this
paragraph (b) shall not apply to any Assumed Liability which arises out of
or relates to any matter with respect to which the Owners and Xxxxxxxxx
would be required to indemnify any Indemnified Person under Section 9.1 of
the Investment Agreement (assuming, for purposes of this proviso, that all
representations and warranties made in the Investment Agreement survive
indefinitely notwithstanding the provisions of Article VIII of the
Investment Agreement).
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4.02 METHOD OF ASSERTING CLAIMS.
Section 9.2 of the Investment Agreement is incorporated herein in
its entirety MUTATIS MUTANDIS.
ARTICLE V
DEFINITIONS
5.01 DEFINITIONS.
(a) As used in this Agreement, the following defined terms shall
have the meanings indicated below:
"AGREEMENT" means this Contribution Agreement and the Exhibits,
the Disclosure Schedule and the Schedules hereto, as the same shall be
amended from time to time.
"ASSUMED LIABILITIES" has the meaning ascribed to it in Section
1.02(a).
"BUSINESS" has the meaning ascribed to it in the first whereas
clause of this Agreement.
"BUSINESS RECORDS" has the meaning ascribed to it in Section
1.03(c).
"CLAIMS" means any administrative or judicial actions, suits,
orders, claims, proceedings, liens or notices of violations, whether civil
or criminal.
"CONTRIBUTED ASSETS" has the meaning set forth in Section
1.01(a).
"EFFECTIVE TIME" has the meaning ascribed thereto in Article III.
"EXCLUDED ASSETS" has the meaning ascribed to it in Section
1.01(b).
"LABOR CONTRACTS" has the meaning ascribed thereto in Section
1.01(b)(iv).
"RETAINED LIABILITIES" has the meaning ascribed to it in Section
1.02(b).
"XXXXX COUNTY CORPORATE WARRANTY DEED" means the warranty deed
regarding real estate in Xxxxx County, Indiana, in the form of Exhibit A
hereto.
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(b) Unless the context of this Agreement otherwise requires, (i)
words of any gender include each other gender; (ii) words using the
singular or plural number also include the plural or singular number,
respectively; (iii) the terms "hereof", "herein", "hereby" and derivative
or similar words refer to this entire Agreement; and (iv) the terms
"Article" or "Section" refer to the specified Article or Section of this
Agreement. All accounting terms used herein and not expressly defined
herein shall have the meanings given to them under GAAP.
ARTICLE VI
MISCELLANEOUS
6.01 NOTICES.
All notices, requests and other communications hereunder must be
in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission or mailed
by prepaid first class certified mail, return receipt requested, or mailed
by overnight courier prepaid, to the parties at the following addresses or
facsimile numbers:
If to Xxxxxxxxx or the Company, to:
Xxxxxxxxx Industries LLC
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
with a copy to:
Leeuw, Plopper & Xxxxxx
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 6.01, be deemed given
upon delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section 6.01, be deemed given upon receipt,
(iii) if delivered by mail in the manner described above to the address as
provided in this Section 6.01, be deemed given on the earlier of the third
Business Day following mailing or upon receipt and (iv) if delivered by
overnight courier to the address as provided in this Section 6.01, be
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deemed given on the earlier of the first Business Day following the date
sent by such overnight courier or upon receipt (in each case regardless of
whether such notice, request or other communication is received by any
other Person to whom a copy of such notice is to be delivered pursuant to
this Section 6.01). Any party hereto from time to time may change its
address, facsimile number or other information for the purpose of notices
to that party by giving notice specifying such change to each other party
hereto.
6.02 BULK SALES ACT.
The parties hereby waive compliance with the bulk sales act or
comparable statutory provisions of each applicable jurisdiction in
connection with the sale of Contributed Assets hereunder. Xxxxxxxxx shall
indemnify the Company and its respective officers, directors, employees,
agents and Affiliates in respect of, and hold each of them harmless from
and against, any and all Losses suffered, incurred or sustained by any of
them or to which any of them becomes subject, resulting from, arising out
of or relating to the failure of Xxxxxxxxx to comply with the terms of any
such provisions applicable to the sale of the Contributed Assets hereunder.
6.03 ENTIRE AGREEMENT.
This Agreement supersedes all prior discussions and agreements
between the parties with respect to the subject matter hereof and thereof
and contain the sole and entire agreement between the parties hereto with
respect to the subject matter hereof .
6.04 WAIVER.
Any term or condition of this Agreement may be waived at any time
by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by
any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Agreement on any future occasion. All
remedies, either under this Agreement or by Law or otherwise afforded, will
be cumulative and not alternative.
6.05 AMENDMENT.
This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each party hereto.
6.06 NO THIRD PARTY BENEFICIARY.
The terms and provisions of this Agreement are intended solely
for the benefit of each party hereto and their respective successors and
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assigns, and it is not the intention of the parties to confer third-party
beneficiary rights, and this Agreement does not confer any such rights,
upon any other Person other than any Person entitled to indemnity under
Article IV.
6.07 NO ASSIGNMENT; BINDING EFFECT.
Neither this Agreement nor any right, interest or obligation
hereunder may be assigned (by operation of law or otherwise) by Xxxxxxxxx
without the prior written consent of the Company and any attempt to do so
will be void. Subject to the immediately preceding sentence, this
Agreement is binding upon, inures to the benefit of and is enforceable by
the parties hereto and their respective successors and assigns.
6.08 HEADINGS.
The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions
hereof.
6.09 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with the domestic laws of the State of New York, without giving effect to
any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New
York.
6.10 COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties hereto by a duly authorized officer of each other
party as of the date first above written.
XXXXXXXXX INDUSTRIES INC.
By:__________________________________
Name:
Title:
XXXXXXXXX INDUSTRIES LLC
By:__________________________________
Name:
Title:
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