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Exhibit 10.1
TRANSFER AGREEMENT
BETWEEN
UCAR CARBON COMPANY INC.
TRANSFEROR
AND
UCAR GRAPH-TECH INC.
TRANSFEREE
JANUARY 1, 2000
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TABLE OF CONTENTS
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ARTICLE 1. TRANSFER OF ASSETS AND SHARES
AND ASSUMPTION OF LIABILITIES 2
1.1 Transfer of Assets 2
1.2 Excluded Assets 4
1.3 Other Transactions 5
1.4 Assignment of Assets 5
1.5 Obtaining Permits and Licenses 7
ARTICLE 2. CAPITALIZATION AND PAYMENT 8
2.1 Capitalization 9
2.2 Valuation 9
ARTICLE 3. LIABILITIES, OBLIGATIONS, AND
INDEMNITIES 9
3.1 Liabilities of Transferor and Indemnification 9
3.2 Liabilities of Transferee and Indemnification 11
3.3 Indemnification Procedure 13
ARTICLE 4. EMPLOYEES 15
4.1 Employment and Benefits 15
4.2 Employees 15
ARTICLE 5. CLOSING 16
5.1 Closing 16
5.2 Transferor's Obligations and Closing Deliveries 16
5.3 Transferee's Obligations and Closing Deliveries 17
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5.4 Recording of Documents 18
ARTICLE 6. MONETARY ADJUSTMENTS AND
POST CLOSING OBLIGATIONS 18
6.1 Taxes and Other Expenses 18
6.2 Further Assurances 20
6.3 Records Retained by Transferor 20
6.4 Access to Records by Transferor 21
6.5 Preservation of Records 21
6.6 Use of Trademarks and Transferor's Name 22
ARTICLE 7. BULK SALES LAW 22
ARTICLE 8. PUBLICITY; CONFIDENTIALITY 22
8.1 Publicity 22
8.2 Confidentiality 23
ARTICLE 9. NOTICES 23
ARTICLE 10. MISCELLANEOUS 24
10.1 Binding Effect; Assignment 24
10.2 Schedules 24
10.3 Counterparts 25
10.4 Article Headings 25
10.5 Waiver 25
10.6 Severability 26
10.7 Governing Law and Forum 26
10.8 Entire Agreement 26
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SCHEDULES
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A MACHINERY AND EQUIPMENT 28
B PATENTS 43
C TECHNOLOGY CONTRACTS 84
D TRADEMARKS 96
E CONTRACTS 131
F PERMITS 134
G CLAIMS, SUITS, AND PROCEEDINGS 136
H LIABILITIES AND EXCLUDED LIABILITIES 137
I EMPLOYEES AND EMPLOYEE BENEFIT PLANS 138
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TRANSFER AGREEMENT
AGREEMENT, made as of the 1st day of January, 2000, by and between UCAR
Carbon Company Inc., its subsidiaries and affiliates, a Delaware corporation
with offices at 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, 00000
("Transferor"), and UCAR Graph-Tech Inc., Delaware corporation with offices at
00000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (Transferee),
W I T N E S S E T H :
WHEREAS, Transferor has and is engaged in the worldwide natural,
acid-treated and flexible graphite businesses, including, but not limited to the
development, production, manufacture, marketing use, sale, distribution and
servicing, throughout the world, of natural, acid-treated and flexible graphite
products and related products made with natural graphite; as well as equipment
used for the above-mentioned functions (the "Business") and
WHEREAS, Transferee wishes to acquire, and Transferor is willing to
transfer, assign and convey, or cause to be transferred, assigned and conveyed,
all of its right, title, and interest in the Business including the assets held
directly by Transferor ;and
WHEREAS, Transferor intends to implement this transfer in order to give
the Business greater flexibility and authority to respond to changing markets
and to give the Transferee full accountability for financial and day-to-day
operating performance; and
WHEREAS, Transferor intends to transfer the Business to Transferee as a
contribution to capital and Transferee intends to assume the liabilities of the
Business in accord with Sections 351(a) and 357(b) of the Internal Revenue Code
of 1986; and
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NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereby agree as follows:
ARTICLE 1 - TRANSFER OF ASSETS AND SHARES
1.1 Transfer of Assets. Subject to the terms and conditions of this Agreement,
and except as otherwise provided in the Schedules and in Articles 1.2 and 1.5
hereof, at the Closing (as defined in Article 5 hereof), Transferor shall
assign, transfer, convey and deliver to Transferee, and Transferee shall acquire
and accept, or cause to be acquired and accepted, from Transferor all of
Transferor's right, title and interest in and to all of the following assets
(the "Assets"):
(i) all fixtures, furnishings, furniture, office equipment and supplies,
vehicles, tools, machinery and equipment, and other tangible personal
property, including construction in progress (the "Machinery and
Equipment") associated with the Business and more fully described in
Schedule A;
(ii) all quantities of inventory, including raw materials,
work-in-progress, finished goods, consigned inventories, stores and
supplies (the "Inventory") as set forth on the balance sheet of the
Business as of January 1, 2000.;
(iii) all patents, patent applications listed in Schedule B attached
hereto (the "Patents"); all technical information, know-how and trade
secrets in any physical form, including, but not limited to all notebooks,
records,
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reports, data, documents, drawings, specifications, manuals, memoranda and
computer programs developed, licensed or otherwise acquired by Transferor
and used exclusively in the Business (the "Technology"); and all
technology contracts including patent licenses associated with the
Business and including, without limitation, those listed in Schedule C
attached hereto (the "Technology Contracts");
(iv) all trademarks, trade names and service marks, registrations and
applications therefor, and trademark license agreements associated with
the Business including, without limitation, those listed in Schedule D
attached hereto (the "Trademarks"); all copyrights, and registrations and
applications associated with the Business (the "Copyrights");
(v) all contracts (other than Technology Contracts), agreements,
arrangements and/or commitments of any kind, to which Transferor is a
party and which relate exclusively to the Business or Assets, including,
without limitation, those contracts listed in Schedule E attached hereto
(the "Contracts");
(vi) all regulatory licenses, permits, exemptions and approvals to which
Transferor is a party and which relate exclusively to the Business or
Assets, including, without limitation, those permits listed in Schedule F
attached hereto (the "Permits")'
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(vii) all accounts receivable of Transferor of any nature whatsoever,
whether recorded or unrecorded, and including without limitation accounts
receivable from third parties, including employees and affiliates, and
inter-division receivables, which relate exclusively to the Business or
Assets as shown on the balance sheet of the Business as of January 1,
2000, (the "Accounts Receivable");
(viii) all customer and vendor lists relating to the Business, all files
and documents (including credit information) relating exclusively to
customers and vendors of the Business; and other business and financial
records, files, books and documents relating exclusively to the Assets or
the Business; and
(ix) all claims, suits and proceedings by the Business, if any, including
those claims listed on Schedule G attached hereto (the "Claims").
1.2 Excluded Assets. The parties to this Agreement expressly understand and
agree that Transferor is not assigning, transferring or conveying to Transferee
any assets, rights or properties of Transferor not specifically referred to in
Articles 1.1 and 1.3. Without limiting the foregoing, the following assets,
rights and properties of Transferor (the "Excluded Assets") shall be
specifically excluded from the transactions contemplated in this Agreement:
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(i) cash, certificate of deposit, and other cash equivalents;
(ii) pension or other funded employee benefit plan assets;
(iii) except as otherwise expressly provided herein, assets and
properties reflected in the books and records of Transferor as the
property of any division or department other than its Natural and
Flexible Graphite Division;
(iv) the capital stock owned or held by Transferor in any subsidiary
or affiliate of Transferor.
1.3 Other Transactions. In addition to the transactions contemplated above, the
following acts or transactions shall also occur on or before the Closing;
(a) Transferee and Transferor shall execute and deliver license or
non-assertion agreements, in a form reasonably acceptable to Transferee
and Transferor, permitting Transferee to continue to use in the Business
certain patents, technology, trademarks and tradenames of Transferor not
exclusive to the business of the other "the "Non-Assertion of Proprietary
Rights Agreement");
(b) Transferee and Transferor shall execute and deliver all service
agreements necessary for the continued operation of the Business, in a
form reasonably acceptable to Transferee and Transferor (the "Service
Agreements");
(c) Transferee and Transferor shall execute and deliver a Tax Allocation
Agreement, in a form reasonably acceptable to Transferee and
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Transferor, to provide for Transferee's payment of its appropriate share
of federal and state income taxes, including the funding of estimated tax
payments as required (the "Tax Allocation Agreement");
1.4 Assignment of Assets.
(a) Non-assignability. To the extent that any lease, contract, license,
agreement, sales or purchase order, commitment, property interest,
qualification or other asset described in Article 1.1 to be assigned,
transferred or conveyed to Transferee, or any claim, right or benefit
arising thereunder or resulting therefrom (collectively the "Interests"),
is not capable of being assigned, transferred or conveyed without the
approval, consent or waiver of the issuer thereof or the other party
thereto, or any third person (including a government or governmental unit)
or if such assignment, transfer or conveyance or attempted assignment,
transfer or conveyance would constitute a breach thereof or a violation of
any law, decree, order, regulation or other governmental edict, or is not
practicable because it relates to matters involving the Business or Assets
together with other enterprises or assets of Transferor not being
transferred to Transferee, or with respect to Assets outside the United
States because Transferee does not have a subsidiary of affiliate in the
country in which such Assets are located, this Agreement shall not
constitute an assignment, transfer or conveyance thereof, or an attempted
assignment, transfer or conveyance thereof, until such obstacles have been
removed.
(b) Transferor to Use Reasonable Efforts. Anything in this Agreement to
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contrary notwithstanding, Transferor is not obligated to, assign, transfer
or convey to Transferee any of its rights and obligations in and to any of
the Interests without first obtaining all necessary approvals, consents or
waivers. Transferor shall use all reasonable efforts, and Transferee shall
cooperate with Transferor, to obtain all necessary approvals, consents or
waivers, or to resolve any impracticabilities of transfer referred to in
Article 1.5(a), necessary to convey to Transferee each such Interest as
soon as practicable; provided, however, that neither the Transferor, nor
Transferee, shall be obligated to pay any consideration therefor (except
for filing fees and other ordinary administrative charges which shall be
paid by Transferee) to the third party from whom such approval, consent or
waiver is requested.
(c) If Waivers of Consents Cannot be Obtained. To the extent any of the
approvals, consents or waivers referred to in Article 1.5(b) have not been
obtained as of the Closing, or until the impracticabilities of transfer
referred to in Article 1.5(a) are resolved, Transferor shall, during the
remaining term of such Interest, use all reasonable efforts, with
reasonable costs of Transferor related thereto to be promptly reimbursed
by Transferee, to (i) obtain the consent of any such third party; (ii)
cooperate with Transferee in any reasonable and lawful arrangements
designed to provide the benefits of such Interest to Transferee so long as
Transferee fully cooperates with Transferor in such arrangements; and
(iii) enforce, at the request of Transferee and at the expense and for the
account of Transferee, any rights of Transferor arising from such Interest
against such issuer
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thereof or the other party or parties thereto (including the right to
elect to terminate any such Interest in accordance with the terms thereof
upon the advice of Transferee).
1.5 Obtaining Permits and Licenses. Transferee shall obtain, as of the Closing
or as soon thereafter as practicable, all Permits required by any governmental
agency with respect to the Assets or the Business (including without limitation
environmental and other operating permits), without any guaranty or liability of
Transferor with respect thereto; provided, however, that Transferor will assign,
transfer and convey to Transferee at the Closing those permits, licenses,
exemptions and approvals described in Schedule F which are held or used by
Transferor exclusively in connection with the Business and can be assigned
without having to obtain the consent of any third party with respect thereto,
and provided, further, that Transferor will cooperate with Transferee in
obtaining any third party consents necessary to the assignment or transfer of
any other permits or licenses used or held by Transferor exclusively in
connection with the Business which are so assignable or transferable. Subsequent
to Closing, to the extent permitted by law, Transferor shall have the right to
cancel any permits, licenses, exemptions, approvals, bonds, guarantees or
undertakings by Transferor now applicable to the Assets or the Business to the
extent such is not so assigned or transferred to Transferee pursuant to this
Article 1.6; provided, however, that Transferor agrees to maintain at
Transferee's expense any such permits, licenses, exemptions, approvals, bonds,
guarantees undertakings for up to six (6) months after Closing or until expired,
which occurs first, so long as Transferee diligently exerts all reasonable
efforts to obtain the necessary consents
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of third parties for such assignment or transfer to Transferee or new permits,
bonds, guarantees or undertakings prior to that time, whichever is applicable.
The failure of Transferor to cancel any permits, licenses, bonds, guarantees or
undertakings shall not affect the respective rights, obligations, liabilities
and indemnifications of Transferor by Transferee under this Agreement.
Transferee shall assume, or reimburse Transferor for, all costs associated with
assignments or transfer of permits and licenses and the cost of any bonds which
cannot be cancelled for as long as they remain outstanding.
ARTICLE 2 - CAPITALIZATION AND VALUATION
2.1 Capitalization. Transferor's subsidiary, UCAR Carbon Technology Corporation,
is the sole stockholder of Transferee, holds one hundred (100) shares of
Transferee's voting common stock, $1.00 par value, which shares are fully paid
and non-assessable and which constitute all the issued and outstanding shares of
Transferee capital stock. All of the issued and outstanding shares of
Transferee's capital stock shall be transferred to Transferor on December 31,
1999. The transfer of the Assets shall be an additional contribution to capital.
2.2 Valuation. The parties agree that, for book and financial reporting
purposes, the value of the Assets transferred to Transferee hereinunder shall be
deemed to be the sum, as of the date of the Closing, of the aggregate net book
value of all Assets.
ARTICLE 3 - LIABILITIES, OBLIGATION AND INDEMNITIES
3.1 Liabilities of Transferor and Indemnification. Transferor shall indemnify
and hold harmless Transferee, its successors and assigns from and against any
and all
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damages, claims, losses, liabilities and expenses (excluding legal, accounting
and similar expenses), which may arise out of (i) any violation of this
Agreement by Transferor, (ii) any past or present business or activity of
Transferor not part of or related to the Business and (iii) any Excluded
Liability. In case any event shall occur which would otherwise entitle
Transferee to assert a claim for indemnification hereunder, no loss, damage or
expense shall be deemed to have been sustained by Transferee to the extent of
any proceeds received by Transferee or any of its affiliates from any third
party insurance policy (which are non-reimbursable by Transferee or any of its
affiliates pursuant to any self-insurance program of Transferee) with respect
thereto, to which policies the parties agree to resort prior to making a claim
hereunder.
3.2 Liabilities of Transferee and Indemnification.
(a) Upon, from and after the Closing, Transferee shall, without any
further responsibility or liability of, or recourse to, the Transferor, or
any direct or indirect subsidiary of the Transferor (other than the
Transferee or any of their directors, shareholders, officers, employees,
agents, consultants, representatives, successors, transferees or
assignees, absolutely and irrevocably assume and be solely liable and
responsible for any and all claims, liabilities, obligations, losses,
costs, expenses, litigation, proceedings, fines, taxes, levies, imposts,
duties, deficiencies, assessments, charges, penalties, allegations,
demands, damages (including but not limited to actual, punitive or
consequential, foreseen or unforeseen, known or unknown), settlements or
judgements of any kind or nature
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whatsoever, excluding only the Excluded Liabilities (as hereinafter
defined), that are asserted against, or that are or are alleged to be
related to, arising from, or associated with the ownership, use,
possession, operation or conduct of the Business before or after the
Closing (all or which are hereinafter collectively called the
"Liabilities"), regardless of when such Liabilities arose or arise, or
whether the facts on which they are based occurred prior to or subsequent
to the Closing, and regardless of where or against whom asserted or
determined or whether asserted or determined prior or subsequent to the
Closing, and regardless of whether referred to or provided for in the
balance sheet of the Business as of January 1, 2000 and regardless of
whether or not known or unknown, fixed of contingent, asserted or
unasserted, or whether arising from or alleged to arise from negligence,
recklessness, violation of law, representation or misrepresentation by
Transferor, or their directors, officers, employees, agents, subsidiaries
or affiliates, including without limitation any and all Liabilities with
respect to environment, health, safety, personal injury, property damage,
employment, claims arising out of contracts, product liability, warranty,
merchantability or fitness for any particular purpose of goods, conformity
of goods to contractual requirements, or any other alleged or actual
breach or violation of any obligation of our requirement binding on the
Transferor, the Business or the Assets. Transferee shall irrevocably
indemnify and hold harmless Transferor, the direct or indirect
subsidiaries of Transferor (other than the Transferee and its respective
directors, shareholders, officers, employees, agents, consultants,
representatives, successors,
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transferees and assigns from and against any and all Liabilities
(including without limitation reasonable fees and expenses of counsel) of
whatever kind and nature. "Excluded Liabilities" shall mean: (i)
liabilities with respect to which, but only to the extent that, Transferor
has an obligation of indemnification pursuant to Article 3.1; (ii)
liabilities with respect to which, but only to the extent that, any
proceeds are received by Transferor, or by any of its subsidiaries, from
any third party insurance policy (and are non-reimbursable by Transferor
or any of its subsidiaries pursuant to Transferor's self-insurance
program), to which policies the parties agree to resort prior to making a
claim hereunder; (iii) those tax liabilities for which Transferor is
responsible under Article 6.1 and (iv) those other liabilities listed in
Schedule H attached hereto.
(b) Transferee shall assume all debt, obligations and liabilities of
Transferor listed on the balance sheet of the Business as of January 1,
2000.
(c) Transferee shall indemnify and hold harmless Transferor and its
successors and assigns from and against any and all damages, claims,
losses, liabilities and expenses (excluding legal, accounting and similar
expenses), which may arise out of any violation of this Agreement by
Transferee.
3.3 Indemnification Procedure. (a) The party entitled to indemnification (the
"Indemnitee") shall promptly notify the party liable for such indemnification
(the "Indemnitor") in writing upon obtaining knowledge of any damage, claim,
loss, liability or expense which the Indemnitee has determined has given or
could give rise to a claim
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under Articles 3.1 or 3.2 hereof (such written notice being hereinafter referred
to as a "Notice of Claim"). A Notice of Claim shall specify in reasonable detail
the nature and any particulars or any such claim giving rise to a right of
indemnification. The Indemnitor shall satisfy its obligations under Articles 3.1
or 3.2, as the case may be, within thirty (30) days of its receipt of a Notice
of Claim; provided, however, that so long as the Indemnitor is in good faith
defending a claim pursuant to paragraph (b) below, its obligation to indemnify
the Indemnitee with respect thereto shall be suspended.
(b) With respect to any third party claim, demand, suit or action which is the
subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own
expense, defend, contest, or otherwise protect against any such claim, demand,
suit or action with legal counsel of its own selection. The Indemnitee shall
have the right, but not the obligation, to participate, at its own expense, in
the defense thereof through counsel of its own choice and shall have the right,
but not the obligation, to assert any and all crossclaims or counterclaims it
may have. So long as the Indemnitor is defending in good faith any such third
party claim, demand, suit or action, the Indemnitee shall at all times cooperate
in all reasonable ways with, make its relevant files and records available for
inspection and copying by, and make its employees available or otherwise render
reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails
to timely defend, contest or otherwise protect against any such third party
claim, demand, suit or action, the Indemnitee shall have the right, but not the
obligation, to defend, contest, assert crossclaims or counterclaims, or
otherwise protect against, the same and may make any compromise or settlement
thereof and recover and be indemnified for the entire cost
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thereof from the Indemnitor, including, without limitation, legal expenses,
disbursements, and all amounts paid as a result of such third party claim,
demand, suit or action or any compromise or settlement thereof.
(c) Transferor has the right, at its own expense, to participate in the defense
of all actions, claims, suits or cases assumed by Transferee pursuant to this
Agreement or which arise subsequent to the Closing involving pre-Closing
activities of the Business. Without the written consent of Transferor,
Transferee may not settle any such action, claim, suit or case. In the event
Transferor does not consent to a settlement, Transferor will assume the defense
of such action, claim, suit or case for its own account whereupon Transferee
shall be released from any further liability with respect to such action, claim,
suit or case. Transferor may, at anytime and at its sole discretion, decide to
assume the defense of such action, claim, suit or case for its own account
whereupon Transferee shall be released from any further liability with respect
to such action, claim, suit or case.
ARTICLE 4 EMPLOYEES
4.1 Employment and Benefits. Transferee will accept the transfer of employment
of all the employees of Transferor associated with the Business and located at
Transferor's Lakewood, Ohio facility and those identified in the Parma, Ohio
facility as set forth on Schedule I attached hereto with such changes, deletions
or additions thereto as may occur from the date thereof to the Closing in the
ordinary course of business and consistent with the terms and conditions of this
Agreement (the "Employees"). Any Employees subject to a legal impediment to
transfer will be seconded by the Transferor to Transferee at cost, and will be
transferred at the expiration or removal of such legal
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impediment. Effective as of the Closing and until such time as the Board of
Directors of the Transferee may determine otherwise, all Employees and other
employees of Transferee shall participate in the Retirement Program Plan for
Employees of UCAR Carbon Company and its Participating Subsidiary Companies, the
Savings Plan for Employees of UCAR Carbon Company and Participating Subsidiary
Companies, as well as those other benefit plans identified in Schedule I hereto
for so long as Transferee is a subsidiary of Transferor or its assigns and
provided Transferor or its assigns continue to maintain such plan or plans.
4.2 Employment Contracts. Transferor represents that there are no agreements
with labor unions or associations representing employees or labor agreements
connected with the Business. Effective as of Closing, Transferee will assume all
employment and consulting agreements and contracts in lieu of Transferor.
Neither Transferor nor any of the Subsidiaries has made any commitment or
agreement to increase the wages, or to modify the conditions or terms of
employment, of the Employees (as defined in Article 4.1).
ARTICLE 5 - CLOSING
5.1 Closing. The closing of the transactions contemplated under this Agreement
shall take place at the offices of Transferor located at 0000 Xxxx Xxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, on December 31, 1999, or at such time and place as
Transferee and Transferor may mutually agree in writing and shall be deemed
effective as of 12:01 A.M. on January 1, 2000 (such time being referred to
herein as the "Closing"); provided,
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however, that the time of the Closing shall be extended at the request of either
Transferee or Transferor. The parties agree that, if the Closing does not take
place on January 1, 2000, Transferor will operate the Business for the benefit
and at the risk of the Transferee and that the Transferee shall have assumed all
of the benefits and burdens of ownership during the period from and including
January 1, 2000 through and including the actual day of Closing. In all events
January 1, 2000 will be the effective and deemed Closing, and for all purposes
of this Agreement all references to the Closing shall mean January 1, 2000.
5.2 Transferor's Obligations and Closing Deliveries. At the Closing, Transferor
shall deliver or cause to be delivered, to Transferee:
(a) One executed and acknowledged Lease Agreement for the real property
and building located in Lakewood, Ohio, also and more commonly known
as Factory "A".
(b) All necessary Patent and Patent Application Assignments
(c) One executed and acknowledged Assignment with respect to the
Technology (as defined in Article 1.1) owned by Transferor.
(d) One executed Assignment and Assumption with respect to the
Technology Contracts between Transferor and third parties,
identified in Schedule C.
(e) All necessary Trademark and Trademark License Assignments.
(f) One executed and acknowledged Assignment with respect to the
copyrights.
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(g) All necessary Assignment and Assumption Agreements or novation
agreements with respect to each of the Contracts requiring same in
Schedule E;
(h) Any necessary consents, assignments or transfers required to
transfer the Permits and any other interests of Transferor as
identified in Schedule F;
(i) One certified copy of the resolutions of Transferor's Board of
Directors evidencing the authorizations for this transaction;
(j) Executed copies of the Service Agreements;
(k) One executed Tax Allocation Agreement;
(l) One Employee Benefits, Service and Liabilities Agreement; and
(m) One Non-Assertion Agreement.
5.3 Transferee's Obligations and Closing Deliveries. At the Closing, Transferee
shall deliver, or cause to be delivered, to Transferor:
(a) One fully executed copy of each Assignment, Assignment and
Assumption and Non-Assertion Agreements with respect to the Assets
previously delivered by Transferor;
(b) One executed copy of each document of assignment or transfer
required of Transferee with respect to the permits and licenses;
(c) One certified copy of the resolutions of Transferee's Board of
Directors evidencing the authorizations for this transaction;
(d) Executed copies of the Service Agreements;
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(e) One executed Tax Allocation Agreement; and
(f) One Employee Benefits, Service and Liabilities Agreement.
5.4 Recording of Documents. Transferee shall be responsible, at Transferee's
expense, for the filing or recording of such deeds, assignments, instruments or
documents delivered by Transferor hereunder, and for the preparation and
recording of such additional assignments, instruments or documents as may be
necessary or appropriate to perfect Transferee's title to or interest in the
Assets.
ARTICLE 6 - MONETARY ADJUSTMENTS AND POST CLOSING OBLIGATIONS
6.1 Taxes and Other Expenses.
(a) Transferee is responsible for any taxes (including, without
limitation, income, payroll, real and personal property, gross receipts, sales,
use, franchise, and stamp taxes) imposed by any Federal, state or local
government or other tax authority in the U.S., or by any foreign government or
any subdivision or taxing authority thereof, and other fees or charges
(including, without limitation, rents, general and special assessments, street
surfacing and other municipal charges, and fuel, water, sewer, electrical and
other utility charges, and documentation, licenses and registration fees),
together with any interest or penalties thereon ("Taxes and Other Charges"),
which are attributable to operation of the Business or to operation and
ownership of the Assets for periods following the Closing. If Transferor shall
have paid any Taxes or Other Charges for which Transferee is responsible as
aforesaid, appropriate adjustment will be made at
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the Closing if possible or as promptly as practicable thereafter.
(b) Transferee shall be liable for all sales, use, transfer, conveyance,
bulk transfer, business and occupation, value added or gross income taxes, or
other taxes, duties, excises or governmental charges (except those on or
measured by Transferor's net income) (the foregoing are hereinafter referred to
as "Transactional Taxes") imposed by any taxing jurisdiction with respect to the
transfer, or assignment of the Assets or otherwise on account of this Agreement
or the transactions contemplated herein. Transferee shall provide Transferor
with appropriate exemption certificates or direct pay certificates where
possible, or shall promptly pay and discharge any such Transactional Taxes. The
foregoing notwithstanding, in the event Transferor shall be required to pay any
Transactional Taxes, Transferee shall promptly reimburse Transferor for any
Transactional Taxes paid by Transferor on behalf of Transferee. In the event any
taxing jurisdiction subsequently determines that any additional Transactional
Taxes (including interest or penalties thereon) shall be due, Transferee shall
indemnify and hold Transferor harmless therefrom pursuant to Article 3.2.
(c) Transferor and Transferee shall cooperate regarding the filing or any
tax returns (including Federal, state, local and foreign income and other tax
returns) that cover a period which includes the date of Closing. Property tax
returns will be filed by the party which owns the property subject to the return
on the assessments date, but responsibility for the tax amount will be
determined pursuant to Article 6.1 (a).
(d) Transferee shall be liable for all title opinions, title insurance,
recording fees, surveys, notarial fees, and other fees and costs arising out of
the transfer, or
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assignment of the Assets, or otherwise on account of this Agreement or the
transactions contemplated herein. Transferee shall promptly pay and discharge
the costs of such items and shall promptly reimburse Transferor for any amounts
Transferor may have expended on such items.
6.2 Further Assurances. At any time and from time to time after the Closing, the
parties agree to cooperate with each other, but in all cases at Transferee's
sole cost and expense, to execute and deliver such other documents, instruments
of transfer or assignment, files, books and records and do all such further acts
and things as may be reasonably required to carry out the transactions
contemplated hereunder.
6.3 Records Retained by Transferor. The parties agree that, except as may
otherwise be provided in this Agreement, Transferor shall transfer and deliver
to Transferee after the Closing all data, records and other information which
pertain exclusively to the Business with the exception of documents created for
this transaction, including, without limitation tax records and personnel
records (all of the foregoing being hereinafter called "Business Records"). To
the extent that the original copies of any such Business Records also contain
information relating to Transferor or any of its affiliates, Transferor and the
affiliates may deliver to Transferee copies deleting such non-Business
information but shall not destroy the original Business Records except in
accordance with normal records retention policies, or otherwise take action to
make such original Business Records unavailable to Transferee. Any Business
Records which Transferor required in
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connection with pending or threatened litigation, or which are otherwise subject
to Hold Orders as provided in Transferor's records retention policy manual, may
be retained by Transferor and copies thereof delivered to Transferee.
6.4 Access to Records by Transferor. Following the Closing, Transferee shall
give to Transferor and its authorized representatives full access, during
regular business hours, to any and all of its premises, properties, contracts,
books, records and date related to the Business, and will cause its officers,
directors and employees to furnish to Transferor, without compensation therefor,
any and all data and information pertaining to the Assets or the operation
thereof that Transferor shall from time to time request, including requests for
information reasonable required (as determined in good faith by Transferor's Tax
Department) to enable Transferor to file Federal, state, local or foreign income
or other tax returns.
6.5 Preservation of Records. Transferee agrees that it shall preserve and keep
the records of Transferor delivered to it hereunder for the period from and
after the Closing prescribed by any government agency or ongoing litigation, and
shall make such records available to Transferor as may be reasonably required in
connection with any legal proceedings against or governmental investigations of
Transferor or in connection with any tax examination of Transferor. In the event
Transferee wishes to destroy such records after that time, Transferee shall
first give ninety (90) days prior written notice to Transferor and Transferor
shall have the right at its option and expense, upon prior
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written notice given to Transferee within said ninety (90) day period, to take
possession of said records within one hundred and eight (180) days after the
date of Transferor's notice to Transferee hereunder.
6.6 Use of Trademarks and Transferor's Name. Transferor recognizes that certain
Inventory and labels and containers therefor, as well as promotional material
relating to such Inventory ("existing supplies"), being conveyed to Transferee
under this Agreement will bear the trademarks UCAR or UCAR Carbon Company which
by themselves, are not being assigned to Transferee. Transferor agrees that
Transferee will be permitted to sell such existing supplies. Upon depletion of
such existing supplies, Transferee will identify itself as the source of
products made by or for Transferee. Future use of these Trademarks after
depletion of existing supplies will be pursuant to a license agreement to be
agreed between the parties.
ARTICLE 7- BULK SALES LAW
7.1 Transferee hereby waives compliance by Transferor with any bulk sales law
which may be applicable.
ARTICLE 8 - PUBLICITY; CONFIDENTIALITY
8.1 Publicity. Transferee agrees that no publicity, release or announcement
concerning the execution of this Agreement, any of the provisions of this
Agreement, or the transactions contemplated hereby, shall be issued without the
advance written approval of Transferor.
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8.2 Confidentiality. Each party hereto agrees to refrain from using in any
manner, and to use its best efforts to keep confidential, any and all
information and data concerning the business of the other party or its
affiliates which I has received, except to the extent that such party can
demonstrate that the information (a) is generally available to the public as
evidenced by prior written publication through no act or failure to act by it,
(b) was already known to it on a non-confidential basis on the date of receipt
as evidenced by written and dated records made by it prior to this date, (c) is
developed independently of such information by the party as evidenced by written
documentation, or (d) is subsequently disclosed to it on a non-confidential
basis by a third party not having a confidential relationship with said other
party with respect to such information. Notwithstanding the foregoing, each of
the parties hereto shall be free to disclose any such information or data to the
extent and only to the extent (a) required by applicable law, and (b) during the
course of or in connection with any litigation, governmental investigation,
arbitration or other proceeding based upon or in connection with the subject
matter of this Agreement. Prior to any disclosure pursuant to the preceding
sentence, the disclosing party shall be required to give reasonable prior notice
to the other party to this Agreement of such intended disclosure and, if
requested by such party, to use its best efforts to obtain a protective order or
similar protection for such other party.
ARTICLE 9- NOTICES
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9.1 Any notices or communications permitted or required hereunder shall be
deemed sufficiently given if hand-delivered, or sent (i) postage prepaid by
registered or certified mail - return receipt requested, (ii) by telex, or (iii)
by reputable overnight courier to the respective parties as set forth below, or
to such other address as any party may notify the other of in writing:
if to Transferor, to: UCAR Carbon Company
0000 Xxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: President
with a copy to General Counsel
if to Transferee, to: UCAR Graph-Tech Inc.
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: President
ARTICLE 10 - MISCELLANEOUS
10.1 Binding Effect; Assignment. This Agreement shall be binding upon, and inure
to the benefit of, all the parties hereto and their respective successors, legal
representatives, and assigns permitted in accordance with this Article. Nothing
herein shall create or be deemed to create any third party beneficiary rights in
any person or entity not a party to this Agreement. No assignment of this
Transfer Agreement, or of any rights or obligations hereunder, may be made by
either party hereto (by operation of law or otherwise) without the prior written
consent of the other parties hereto. Any attempted assignment without the
required consent shall be void.
10.2 Schedules. All Schedules attached hereto, and the documents and agreements
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referred to herein to be delivered, and the acts to be performed at or
subsequent to the Closing ("Items") are incorporated herein and expressly made a
part of this Agreement as fully as though completely set forth herein, and all
references to this Agreement herein or in any of such Items shall be deemed to
refer to and include all of said items.
10.3 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Each counterpart may consist of a number of copies hereof
each signed by less than all, but together signed by all, of the parties hereto.
In pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one such counterpart.
10.4 Headings. The headings contained in this Agreement are inserted for
convenience of reference only and shall not otherwise affect the meaning or
interpretation or be deemed a substantive part of this Agreement.
10.5 Waiver. The failure of any party at any time or times to enforce or require
performance of any provision hereof shall in no way operate as a waiver or
affect the right of such party at a later time to enforce the same. No waiver by
any party of any condition or the breach of any term, covenant, representation
or warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instance, shall be deemed to be or construed as a further or
continuing waiver of any such condition or
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breach, or a waiver of any other condition, or of any breach of any other term,
covenant, representation or warranty contained in this Agreement.
10.6 Severability. If any provision of this Agreement shall hereafter be held to
be invalid or unenforceable for any reason, that provision shall be reformed to
the maximum extent permitted to preserve the parties' original intent, failing
which, it shall be severed from this Agreement with the balance of the Agreement
continuing in full force and effect; provided, however, that Transferor shall
have no obligation to consummate the transactions contemplated hereby if the
provision being reformed or severed affects the consideration for the Assets as
provided in Article 2 hereof. Such occurrence shall not have the effect of
rendering the provision in question invalid in any other jurisdiction or in any
other case or circumstances, or of rendering invalid any other provisions
contained herein to the extent that such other provisions are not themselves
actually in conflict with any applicable law.
10.7 Governing Law and Forum. This Agreement shall be governed by and construed
in all respects under the laws of the State of Delaware, without reference to
its conflicts of laws rules or principles. Any action to enforce, or which
arises out of or in any way relates to, any of the provisions of this Agreement
shall be brought and prosecuted in such court or courts located within the State
of Delaware as provided by law; and the parties consent to the jurisdiction of
said court or courts located within the State of Delaware, and to service of
process by registered mail, return receipt requested, or by any
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other manner provided by Delaware law.
10.8 Entire Agreement. This Agreement and all the Schedules attached hereto, and
all other documents and certificates referred to herein, constitutes the entire
understanding of the parties hereto concerning the sale, purchase and use of the
Assets and operation thereof, and cancels and supersedes all previous agreements
and understandings, oral or written, between the parties with respect to the
subject matter hereof. Transferee disclaims reliance upon any representations,
warranties or guarantees, either express or implied, by Transferor, its
employees or agents. No modification of this Agreement or waiver of the terms,
conditions, warranties, representations and rights hereunder will be binding
upon either party unless signed in writing by an authorized representative of
such party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first above
written.
UCAR CARBON COMPANY INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Vice President
--------------
UCAR GRAPH-TECH INC.
By: /s/ Xxxx Xxxxxx
---------------
Title: President
---------
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SCHEDULE A
[Omitted]
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SCHEDULE B
[Omitted]
33
34
SCHEDULE C
[Omitted]
34
35
SCHEDULE D
[Omitted]
35
36
SCHEDULE E
[Omitted]
36
37
SCHEDULE F
[Omitted]
37
38
SCHEDULE G
[Omitted]
38
39
SCHEDULE H
[Omitted]
39
40
SCHEDULE "I"
[Omitted]
40
