ASSET PURCHASE AGREEMENT
BY AND BETWEEN
HONEYWELL INTERNATIONAL INC., A DELAWARE CORPORATION,
OPERATING THROUGH ITS
ENGINES AND SYSTEMS BUSINESS UNIT
AND
EFTC CORPORATION, A COLORADO CORPORATION
DATED ____________
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") dated as of February
17, 2000 is entered into by and between Honeywell International Inc., a Delaware
corporation, operating through its Engines and Systems business unit
("Purchaser"), and EFTC Corporation, a Colorado corporation ("Seller" and,
together with Purchaser, the "Parties" and each a "Party"):
RECITALS
WHEREAS, Seller is engaged in a line of business consisting of the
manufacture of electronic assemblies (the "EFTC Business");
WHEREAS, Seller's business at its leased facility located at 0000 Xxxx
Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000 (the "Tucson Facility" and such business the
"Tucson Business") includes providing electronics manufacturing services on
behalf of Honeywell under those certain agreements and purchase order documents
listed in Schedule 1.5 (the "Honeywell Product Line");
WHEREAS, Seller desires to sell and Purchaser desires to purchase
certain assets of Seller identified herein and used in the Honeywell Product
Line so that Purchaser may conduct the operation of the Honeywell Product Line
and manufacture of products under the Honeywell Orders, as defined below; and
WHEREAS, contemporaneously with this Agreement and as part of a series
of related transactions the Parties are modifying certain of their business
arrangements unrelated to the Honeywell Product Line, including certain pricing
increases under contracts for purchase of electronic assemblies manufactured at
Seller's plant in Phoenix, Arizona.
NOW, THEREFORE, in consideration of the mutual covenants, agreements
representations and warranties contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree as follows:
AGREEMENT
1. PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement and except as otherwise provided herein, on the Closing (as defined
below in Section 9.1) Seller shall sell, convey, transfer, assign and deliver to
Purchaser and Purchaser shall purchase and accept from Seller, all right, title
and interest in the following assets, together with such changes, deletions or
additions as are reasonably acceptable to Purchaser and Seller and occur between
the respective dates of the Schedules attached hereto and the Closing in the
ordinary course of business (the "Assets"):
1.1.1 Certain machinery and equipment, office equipment, tools
and other tangible personal property as listed in Schedule 1.1.1 (the "Personal
Property"), which Schedule shall also include Seller's net book value with
respect to each such item of Personal Property (the "Base Personal Property
Value");
1.1.2 Certain raw materials, parts and components,
work-in-process and finished goods as specified in Schedule 1.1.2 (the
"Inventory"), which Schedule shall also include Seller's net book value with
respect to each such item of Inventory (the "Base Inventory Value"); and
1.1.3 The contracts, agreements, arrangements and/or
commitments of Seller with vendors and the purchase orders specified in Schedule
1.1.3(a) and, subject to the terms of Section 13.3.3 hereof, the purchase orders
specified in Schedule 1.1.3(b) (the "Contracts"). Notwithstanding anything to
the contrary set forth herein or in any Schedule or Exhibit hereto, no contracts
for third party sales are to transfer to Purchaser under this Agreement.
1.2 [Intentionally left blank]
1.3 Transfer of Title to the Assets. Seller shall sell, assign, convey,
transfer and deliver the Assets to Purchaser at the Closing by means of bills of
sale, assignments, endorsements, certificates and such other instruments of
transfer as shall be necessary or appropriate to vest good title to the Assets
in Purchaser, free and clear of any Liens (as defined in Section 4.5 below),
except as otherwise set forth in this Agreement.
1.4 Grant of License to Purchaser.
1.4.1 "EFTC Intellectual Property" includes the copyrights and
other intellectual property including, without limitation, processes, apparatus,
formulas, trade secrets, know-how, discoveries, manufacturing, engineering top
and detail drawings, processes and specifications associated with the operation
of the Honeywell Product Line (other than that licensed to Seller under the 1997
License and other than third party software licensed to Seller). EFTC has no
registrations or applications for registrations under copyright or patent law
with respect to any EFTC Intellectual Property.
1.4.2 Seller hereby grants to Honeywell Intellectual Property,
Inc. ("HIPI") an irrevocable, fully paid-up, world-wide, transferable,
non-exclusive license in the EFTC Intellectual Property to design, modify,
rework, remanufacture, make, have made, use, sell, lease or service any and all
products and services related to the operation of the Honeywell Product Line
subject to the terms and conditions of the Agreement (the "HIPI License"). The
above license, in addition to being transferable, includes the right to
sublicense all affiliates, subsidiaries and revenue share partners of HIPI. HIPI
is an express third party beneficiary of this Section 1.4. Seller agrees to take
such further acts and provide such further documents as may be reasonably
necessary to effect and confirm the rights granted under this Section.
1.4.3 To the best of Seller's knowledge, Purchaser's use of
EFTC Intellectual Property will not violate any third party rights in existence
as of the Closing, but Seller does not make any other warranty, either express
or implied, including warranties of merchantability and fitness for a particular
purpose and shall have no liability with respect to the EFTC Intellectual
Property or any use thereof.
1.5 Assignment and Amendment of Certain Contracts. At the Closing,
Seller shall assign to Purchaser all of its rights with respect to those certain
agreements for purchase of goods and purchase order documents listed in Schedule
1.5 (the "Honeywell Orders"). The assignment of the Honeywell Orders and the
Contracts shall be pursuant to the assignment agreement in the form of Exhibit
1.5(a) (the "Assignment Agreement"). Such assignment agreement shall include an
assumption by Purchaser of Seller's obligations under the Honeywell Orders and
the Contracts, respectively, only with respect to obligations arising after the
Closing. At the Closing, Seller shall enter into an amendment to that certain
Amended and Restated License Agreement dated August 4, 1997 between Seller and
AlliedSignal Technologies Inc., which has subsequently merged into Honeywell
Intellectual Property Inc. ("HIPI"), (the "1997 License") in the form of Exhibit
1.5(b) whereby Seller shall assign to HIPI all of its rights to the intellectual
property deferred therein as the "AES Technical Data" and "AES Technical
Information" (the "1997 License Amendment").
1.6 Release Agreement. At the Closing, Seller and Purchaser shall
execute and deliver that certain Release Agreement in the form of Exhibit 1.6.
1.7 Non-Assignable Assets. Any transfer or assignment to Purchaser by
Seller of any property or property rights or any agreement which shall require
the consent or approval of any third party shall be made subject to such consent
or approval being obtained; provided, that Seller shall hold such property,
property rights or agreement for the exclusive benefit of Purchaser until such
consent or approval is obtained. Nothing set forth in this Section 1.7 shall be
deemed to waive any condition to Purchaser's obligations under this Agreement or
any closing deliveries to be provided to Purchaser by Seller or waive any
requirement of Seller to provide material third party consents.
2. PURCHASE PRICE
2.1 Purchase Price.
2.1.1 Purchaser will be provided with the opportunity to
review and verify the information contained in Schedule 1.1.1 and provide any
comments or revisions thereto. On or prior to the Closing, the Parties will
prepare a final, updated Schedule 1.1.1 mutually agreed to in writing (the
"Final Personal Property Value").
2.1.2 Purchaser and Seller shall together conduct a physical
count of the Inventory on a date as close as reasonably practicable to the
Closing, but in no event more than fifteen (15) days prior to the Closing, and
prepare a written mutually agreeable updated Schedule 1.1.2. Thereafter, the
physical count and valuation of the Inventory shall be adjusted using a mutually
agreeable perpetual inventory system methodology to determine the Inventory as
of the Closing. On or prior to the Closing, the Parties will prepare a final,
updated Schedule 1.1.2 mutually agreed to in writing (the "Final Inventory
Value").
2.1.3 The Purchase Price shall be Thirteen Million Two Hundred
Thirty-Nine Thousand Eight Hundred Seventy-Nine Dollars ($13,239,879).
2.2 Payments. All payments required to be made pursuant to this Article
2 and other provisions of this Agreement shall be made in United States dollars
in immediately available funds by wire transfer to an account required by this
Agreement or, if not so required, as designated by Seller in writing to
Purchaser. The entire amount of the Purchase Price will be disbursed as
contemplated by Sections 2.4 and 2.5 below.
2.3 Transfer Taxes. Purchaser shall be responsible for all sales,
transfer and similar taxes, duties or levies assessed or payable in connection
with the transfer of the Assets to Purchaser. Purchaser shall obtain and furnish
to Seller all required resale or other exemption certificates with respect to
the Assets.
2.4 Use of Proceeds. Immediately after Closing, Seller will use between
$10,000,000 and $11,000,000 of the Purchase Price to make payment to third party
vendors and other trade creditors (the "Vendor Payments") with past due
accounts. The Parties have agreed upon the following process to effect such
payment:
2.4.1 Immediately prior to the Closing, Seller shall provide
Purchaser with a "Borrowing Base Certificate" representing Seller's calculation
of its borrowing base under the Credit Agreement, dated as of September 30,
1997, as amended, among Seller, Bank One, Colorado, N.A., ("Bank One") as agent,
and the banks party thereto, as amended by the Restated and Amended Credit
Agreement, dated as of March 12, 1999 as amended (the "Bank One Agreement"),
which certificate shall be accurate and complete in all material respects and
acceptable to Purchaser;
2.4.2 After receipt of the "Borrowing Base Certificate"
Purchaser shall have the right to contact Bank One to confirm, to Purchaser's
satisfaction, the sufficiency of funds available to Seller under the Bank One
Agreement for purposes of the payments to be made under this Section and Bank
One's intent to abide by the flow of funds contemplated in this Section and Bank
One's satisfaction with the Borrowing Base Certificate;
2.4.3 The Parties understand that Bank One will require the
Purchase Price to be applied, immediately after Closing, to the pay down of
Seller's outstanding obligations under the Bank One Agreement and Seller agrees
to apply the Purchase Price in such manner;
2.4.4 Once the pay down contemplated by Section 2.4.3 has
occurred, Borrower will, pursuant to the terms of the Bank One Agreement, borrow
an amount equal to the Vendor Payments and such funds will be deposited in
Seller's account number 1548-1687 with Bank One (the "Seller Account") and used
solely by Seller to make the Vendor Payments;
2.4.5 At the Closing, Seller will provide Purchaser, for
Purchaser's information, with a list of the third party vendors and trade
creditors to whom Vendor Payments will be made under this Section 2.4 and the
dollar amount payable to each, such list to be created in Seller's determination
(the "Vendor List");
2.4.6 At the Closing, Seller will provide Purchaser with the
opportunity to examine original, signed checks from the Seller Account payable
to each of the vendors on the Vendor List in the amounts shown on the Vendor
List (the "Vendor Checks"); and
2.4.7 Seller will mail the Vendor Checks, via U.S. Mail,
immediately after Closing and will cooperate with Purchaser to allow Purchaser
to confirm that such Vendor Checks have actually been mailed. Seller further
agrees that it will not request Bank One to place a stop-order against any of
the Vendor Checks, except to correct mistakes in the Vendor Payments or Vendor
Checks.
2.5 Hold Back Account.
2.5.1 As collateral and security for Seller's indemnification
obligations hereunder and under the documents or agreements executed in
connection with the transactions contemplated hereby, Purchaser shall set aside
from the Purchase Price at Closing an amount equal to Five Hundred Thousand
Dollars ($500,000) and deposit such amount in a segregated bank account held by
Purchaser (the "Hold Back Account").
2.5.2 The Hold Back Account shall be in existence immediately
following the Closing and shall terminate at 5:00 p.m., Phoenix, Arizona time on
the date that is 12 months after Closing (the "Hold Back Period"). At the
termination of the Hold Back Period, Purchaser shall deliver to Seller any
monies remaining in the Hold Back Account.
2.5.3 If Purchaser incurs any Losses, as defined in Section
14.1, at any time on or before the last day of the Hold Back Period that are
subject to indemnification by Seller hereunder, Purchaser may seek reimbursement
directly from the Hold Back Account. Purchaser shall provide Seller with prompt
written notice of any disbursement from the Hold Back Account. Seller shall have
a period of five (5) business days to provide Purchaser with written notice of
any reasonable objection Purchaser may have to the disbursement from the Hold
Back Account. If no objection is made within such period, Seller shall be deemed
to have no objection to the disbursement. If Seller provides written notice of
objection within such time period, the Parties shall promptly enter into good
faith discussions regarding a resolution to such objection.
3. ASSUMPTION OF LIABILITIES AND OBLIGATIONS
3.1 Assumed Liabilities. Upon, from and after the Closing, Purchaser
shall, without any further responsibility or liability of, or recourse to,
Seller or any of its directors, shareholders, officers, employees, agents,
consultants, representatives, parent entities, affiliates, successors or
assigns, absolutely and irrevocably assume and be solely liable and responsible
for any and all liabilities and obligations of any kind or nature of the Seller
(whether fixed or contingent, matured or unmatured, foreseen or unforeseen,
known or unknown), which may arise after the Closing arising out of the
following (the "Assumed Liabilities"):
3.1.1 The ownership, use or possession or condition of the
Assets, or the operation orconduct of the Honeywell Product Line after the
Closing;
3.1.2 Seller's obligations arising after the Closing with
respect to the 1997 License Agreement pursuant to the terms of the 1997 License
Amendment and the Honeywell Orders and the Contracts pursuant to the terms of
the Assignment Agreement.
3.1.3 [Intentionally left blank]
3.1.4 Liability for all federal, state, local and foreign
taxes relating to the Assets or the Honeywell Product Line with respect to any
period or part thereof commencing immediately after the Closing; and
3.1.5 [Intentionally left blank]
3.1.6 Liability for costs of investigating or remediating the
presence of Hazardous Substances at, on, under or emanating from the Tucson
Facility but only to the extent arising out of or relating to activities of
Purchaser, its employees, agents, contractors or invitees and occurring after
Closing.
3.1.7 Liability for any violation of Environmental Law (as
hereinafter defined) to the extent arising out of or relating to activities of
Purchaser, its employees, agents, contractors or invitees at the Tucson Facility
after Closing.
3.1.8 Liability for the costs arising from or relating to the
presence of Hazardous Substances at, on under or emanating from facilities or
locations to which Purchaser sends, transports, dispose of or arranges for the
disposal of Hazardous Substances from the Tucson Facility.
The irrevocable assumption by Purchaser of all Assumed Liabilities shall be
effective upon the Closing, unless the terms hereof expressly state that such
liability or obligation shall transfer at another time, including, but not
limited to, the obligations set forth in Article 6. Nothing contained in this
Section shall be deemed to limit any obligations of Seller under this Agreement,
including but not limited to, the representations and warranties made by Seller
in Section 4.
3.2 Non-Assumed Liabilities. Seller shall at all times, without any
responsibility or liability of, or recourse to, Purchaser or any of its
directors, shareholders, officers, employees, agents, consultants,
representatives, parent entities, affiliates, successors or assigns, absolutely
and irrevocably be and remain solely liable and responsible for all Non-Assumed
Liabilities. "Non-Assumed Liabilities" shall mean (i) any and all liabilities
and obligations of any kind or nature (whether fixed or contingent, matured or
unmatured, foreseen or unforeseen, known or unknown) ("Liabilities") existing or
arising from or in connection with the EFTC Business at any time on or prior to
the Closing; (ii) any and all Liabilities existing or arising from or in
connection with the Honeywell Product Line on and prior to the Closing; and
(iii) any Liabilities or claims which may be asserted against or imposed upon
Purchaser by reason of its being a successor or transferee of Seller or as an
acquiror of the Assets of the EFTC Business or otherwise as a matter of law.
Without limitation of the foregoing, all of the following shall be Non-Assumed
Liabilities for the purposes of this Agreement:
3.2.1 any product liability, warranty claim, or Liability
relating to any toxic tort or similar claim for injury to person or property,
regardless of when made or asserted that arises out of or is based upon any
express or implied representation, warranty, agreement or guarantee made by any
Seller or any of its Affiliates, or alleged to have been made by any of such
persons or entities, or that it is imposed or asserted to be imposed by
operation of law, in connection with any service performed or product
manufactured, distributed or sold by or on behalf of Seller on or prior to the
Closing or which arises out of any condition existing as of the Closing,
including any claim relating to any product delivered, manufactured or
distributed by Seller on or prior to the Closing and any claim seeking recovery
for consequential damages, lost revenue or income;
3.2.2 all Liabilities or obligations of any nature
attributable to services rendered for the Seller by Seller's employees or former
employees, including those employed or formerly employed by the Seller,
including without limitation (a) workers compensation, disability and medical
benefits payable as a matter of law, contract or pursuant to benefit programs or
otherwise with respect to any injury, illness or medical conditions arising out
of events or exposures prior to the Closing, Retiree and Inactive Employee
Benefits (as defined in Section 6.9.1), any wages, vacations, severance pay or
other benefits under any plan, contract, bonus, deferred compensation, incentive
compensation, stock purchase, stock option, supplemental retirement, severance
or termination pay, salary continuation, hospitalization, medical, dental, life
insurance, disability, sick leave or other leave of absence, vacation, defined
benefit, defined contribution, profit sharing, stock bonus, retirement, pension,
supplemental unemployment benefits, union contracts, and each other employee
benefit plan, policy or arrangement maintained, contributed to, or required to
be contributed to, by Seller with respect to any employee, beneficiary, former
employee, retiree or other worker of Seller, whether or not any of the foregoing
is funded, subject to ERISA, or legally binding (collectively referred to as the
"Seller Benefit Plans"), and (b) withholding tax liabilities, unemployment
compensation premiums, occupational injury, disease or disability claims, or
claims for discrimination, unfair labor practices, violations of the collective
bargaining agreements or wrongful discharge;
3.2.3 any Liability relating to the operation of the EFTC
Business or any other business or operation of Seller on or prior to the Closing
arising by operation of law under any common law or statutory doctrine
(including successor Liability or de facto merger);
3.2.4 any Liability with respect to or arising out of any
contract, including any Contract (i) that is not capable of being assigned to
Purchaser at the Closing to the extent arising out of any breach or default
thereof by Seller on or prior to the Closing (including any event occurring on
or prior the Closing that, with the passing of time or the giving of notice, or
both, would become a breach or default) under any such contract, or (ii)
required by the terms thereof to be discharged on or prior to the Closing;
3.2.5 any Liability to the extent the existence of such
Liability constitutes a breach of any representation or warranty of Seller
contained in or made pursuant to this Agreement;
3.2.6 any Liability that arises out of or relates to the
employment or termination of employment of any employees, agents or independent
contractors by Seller, except any such Liability caused by Purchaser's failure
to perform its obligations under Article 6;
3.2.7 any Liability to past, present or future shareholders of
Seller in their capacity as shareholders;
3.2.8 any Liability that arises out of or relates to any
claims, action, suit, proceeding or investigation, whether civil or criminal,
pending or threatened relating to the conduct or activities of the EFTC
Business, any other business or operation of Seller, the Honeywell Product Line,
or the ownership, use or possession of the Assets, on or prior to the Closing;
3.2.9 any Liability relating to any broker's or finder's fee
or commission incurred by Seller as a result of the transactions contemplated
hereunder;
3.2.10 except for the Assumed Liabilities, any Liability
arising out of or relating to the conduct or activities of the Honeywell Product
Line (including any predecessor operations), the ownership, use or possession of
the Assets, performance of the Contracts, any Liabilities or claims arising out
of or relating to events, circumstances or conditions occurring on or before the
Closing, and any Liability associated with any other business of Seller and its
affiliated entities.
3.2.11 any Liability with respect to the 1997 License
Agreement and Honeywell Orders not expressly assumed under the 1997 License
Amendment or Assignment Agreements executed pursuant to Section 1.5;
3.2.12 liability for all federal, state, local and foreign
taxes relating to the EFTC Business, the Assets or the Honeywell Product Line
with respect to any period or part thereof on or prior to the Closing;
3.2.13 liability for costs of investigating or remediating the
presence of Hazardous Substances at, on, under or emanating from the Tucson
Facility and arising out of or relating to the activities occurring prior to
Closing or relating to activities of Seller, its employees, agents, contractors
or invitees after Closing at the Tucson Facility;
3.2.14 liability for any violation of any Environmental Law to
the extent arising out or relating to activities at the Tucson Facility prior to
Closing or relating to activities of Seller, its employees, agents, contractors
or invitees after Closing at the Tucson Facility; and
3.2.15 liability for the costs arising from or relating to the
presence of Hazardous Substances at, on, under or emanating from any facility or
location to which EFTC sent, transported, disposed of, or arranged for the
disposal, of Hazardous Substances from the Tucson Facility.
"Environmental Laws" means all federal, state, county, local, and municipal
laws, principles of common law, regulations, codes decrees, rules (having the
force of law) or judgments relating to pollution or protection of human health
or the environment. "Hazardous Substances" means any toxic, ignitable or
reactive material, pollutant or contaminant, hazardous substance, hazardous
material, toxic substance, or hazardous waste, as such terms are defined by any
Environmental Law or such substances as are regulated by any Environmental Law.
Seller hereby irrevocably waives and releases Purchaser from all Non-Assumed
Liabilities, including any Liabilities created or which arise by statute or
common law.
4. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows as of the date
hereof and as of the Closing:
4.1 Corporate Status. Seller is a corporation duly organized and
validly existing under the laws of Colorado, the jurisdiction in which it is
incorporated, and has full power and authority to carry on the EFTC Business as
now conducted. Seller has all requisite corporate power and authority to enter
into this Agreement and to perform its obligations and consummate the
transactions contemplated hereby in accordance with the terms of this Agreement.
Seller is duly qualified to do business in each jurisdiction in which the
failure to be so qualified would have a material adverse effect on the Seller's
conduct of the EFTC Business.
4.2 Authorization. All corporate and other proceedings required to be
taken by or on the part of Seller including, without limitation, all action
required to be taken by the directors or shareholders of Seller to authorize
Seller to enter into and carry out this Agreement has been, or prior to the
Closing will be, duly and properly taken. This Agreement has been duly executed
and delivered by Seller and is valid and enforceable against Seller in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and the rules of law governing
specific performance, injunctive relief and other equitable remedies.
4.3 Compliance. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not (i) result in the
breach of any of the terms or conditions of, or constitute a default under, or
violate, as the case may be, the articles of incorporation, by-laws or other
organization documents of Seller, or (ii) any agreement, lease, mortgage, note,
bond, indenture, credit agreement, license or other document or undertaking,
oral or written, to which Seller is a party or by which Seller is bound and by
which any of the Assets may be affected in a manner that could materially
adversely affect the Honeywell Product Line, or (iii) result in the creation of
a lien or encumbrance on Seller's interest in any of the Assets.
4.4 Contracts. Seller is not in default or defaults under any of the
Contracts and there does not exist any default under any of the Contracts by any
other party thereto that would, in either case, individually or in the aggregate
have a material adverse effect on the Honeywell Product Line, except as set
forth in Schedule 4.4.
4.5 Title. Seller has good and marketable title to all of the Assets,
the 1997 License, the EFTC Intellectual Property and the Honeywell Orders free
and clear of any mortgage, security interest, pledge, lien, conditional sales
agreement, claim, restriction, reservation, covenant, encumbrance, charge,
restraint on transfer, or any title defect of any nature whatsoever
(collectively "Liens"), except for any Liens listed on Schedule 4.5 hereto in
favor of Bank One as Agent pursuant to the Bank One Agreement (the "Bank
Liens"). At the Closing, Seller will convey good title to all the Assets free
and clear of all Liens, including without limitation the Bank Liens. Except for
financing statements evidencing the Bank Liens, no financing statement under the
Uniform Commercial Code with respect to the Assets has been filed in any
jurisdiction and not released and Seller has not signed any such financing
statement or any security agreement authorizing any secured party thereunder to
file any such financing statement.
4.6 Taxes.
4.6.1 General. All Taxes (as hereinafter defined) with respect
to the Assets that are or become due and payable or accrue with respect to any
period or portion thereof ending on or prior to the Closing have been or will be
duly and properly computed, reported, fully paid and discharged by Seller. As
used herein, the terms "Tax" and "Taxes" shall include all federal, state, local
and foreign taxes, assessments or other governmental charges (including, without
limitation, net income, gross income, excise, franchise, sales and value added
taxes, real or personal property taxes, taxes withheld from employees' salaries
and other withholding taxes and obligations and all deposits required to be made
with respect thereto), levies, assessments, deficiencies, import duties,
licenses and registration fees and charges of any nature whatsoever, including
any interest, penalties, additions to tax or additional amounts with respect
thereto, imposed by any government or taxing authority which are levied upon the
Assets.
4.6.2 Unpaid Taxes, Liens, etc. There are no unpaid Taxes with
respect to any period or portion thereof ending on or before the Closing that
could become a lien on the Assets, except for current Taxes not yet due and
payable. There are no unpaid Taxes with respect to any or all "Seller Benefit
Plans", nor have any events occurred with respect to any such Seller Benefit
Plans that could, in any case, give rise to a lien on the Assets. There are no
liens for Taxes on the purchased assets. Seller is not required to treat any
asset as owned by another person for federal income tax purposes or as
tax-exempt bond financed property or tax-exempt use property within the meaning
of Section 168 of the Internal Revenue Code (the "Code"). None of the Assets is
subject to any joint venture, partnership or other agreement or arrangement that
is treated as a partnership for federal income tax purposes. The transactions
contemplated herein are not subject to the tax withholding provisions of Section
3406 of the Code, or of Subchapter A of Chapter 3 of the Code or any other
provision of law.
4.6.3 Prorations of Property Taxes. At the Closing, all real
and personal property taxes ("Property Taxes") which are past due or have become
due upon any of the Assets before the Closing will be paid by the Seller,
together with any penalty or interest thereon. Property Taxes related to the
current tax period including, without limitation, installments of special
assessments, will be prorated and adjusted between the Buyer and the Seller as
of the Closing on a basis taking into account whether such Property Taxes are
customarily paid in advance or in arrears. If current tax bills are unavailable
at the Closing, the prior year's tax bills will be used for proration purposes.
4.7 Sufficiency and Condition of Assets.
4.7.1 Sufficiency. The Inventory and Personal Property
represent substantially all of the inventory, raw material, parts, components,
work in process, finished goods, equipment, machinery, office equipment, tools
and other tangible personal property used by the Seller directly for the
operations of the Honeywell Product Line and are sufficient to operate the
Honeywell Product Line and perform the Honeywell Orders as currently conducted
by Seller. To the best knowledge of Seller, the AES Technical Data and AES
Technical Information covered by the 1997 License Agreement and the HIPI License
represent all of the intellectual property (except for third party software
licensed to Seller) used by Seller in connection with the Honeywell Product Line
and are sufficient to operate the Honeywell Product Line and perform the
Honeywell Orders as currently conducted by Seller.
4.7.2 Net Book Value. Schedule 1.1.1 and Schedule 1.1.2 set
forth the true and correct net book value of the Personal Property and Inventory
set forth thereon, as reflected on Seller's balance sheet kept in accordance
with generally accepted accounting principles as historically applied by Seller
to the Tucson Business.
4.8 Brokers. No broker, investment banker, financial advisor or other
person or entity is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based on arrangements made by or on behalf of Seller.
4.9 Financial Information. The financial and employee information
provided to Purchaser through the Closing in connection with its due diligence
is accurate and complete in all material respects. Seller acknowledges that
Purchaser is relying on such information in its determination of whether to
enter into this transaction and its relevant terms, including, but not limited
to, the calculation of the net book value of the Assets necessary to calculate
the Purchase Price hereunder. Schedule 1.1.1 and Schedule 1.1.2, respectively,
as delivered as of the date hereof and as such schedules may be modified
pursuant to the terms of this Agreement, reflect the net book value of the
Inventory inclusive of all reserves held at any level of Seller's corporate
structure and Personal Property as reflected on Seller's financial statements,
which has been calculated in accordance with generally accepted accounting
principles as historically applied by Seller. There are no accounts or reserves
held by Seller on its books relating to the Assets that are not disclosed on
Schedule 1.1.1 or Schedule 1.1.2, as applicable. The Borrowing Base Certificate,
and the Vendor List provided for in Section 2.4 are accurate and complete in all
material respects and that Seller has used best efforts to produce Vendor checks
that conform with the Vendor List.
4.10 Environmental. Except as disclosed on Schedule 4.10 or otherwise
affirmatively disclosed by Seller to Purchaser, (i) to Seller's knowledge,
Seller is and at all times has been in compliance in all material respects with
applicable Environmental Laws in connection with the conduct of Seller's
business at the Tucson Facility, and Seller has not received any unresolved oral
or written communication from a governmental or regulatory body or other Person
that alleges that Seller is not in compliance with any Environmental Laws in
connection with the conduct of its business at the Tucson Facility; (ii) to
Seller's knowledge, Seller holds, and is in material compliance with all permits
and governmental authorizations required for Seller to conduct its business at
the Tucson Facility in compliance with Environmental Law; (iii) to Seller's
knowledge, Seller has not received any communications alleging that Seller is
liable to any party (including, but not limited to, a governmental or regulatory
body) as a result of the release, spill, disposal or discharge of a Hazardous
Substance into the environment at, on or under the Tucson Facility or at a
facility or location at which Seller has sent, transported, disposed or arranged
for the disposal of Hazardous Substances from the Tucson Facility; (iv) to the
Seller's knowledge, there have been no release, spill or discharge of Hazardous
Substances into the environment at, on or under the Tucson Facility; (v) there
are no pending or, to the knowledge of Seller, threatened notices of deficiency,
notices of violation, information requests, orders, or judicial or
administrative actions involving alleged violations by Seller, or Seller's
employees, agents, contractors or invitees of any Environmental Law at the
Tucson Facility; and (vi) to Seller' knowledge, Seller has provided, or made
available, to Purchaser with complete and accurate copies of all reports,
studies, surveys, and similar material documents commissioned by Seller or in
Seller's possession with respect to non-compliance with Environmental Laws at
the Tucson Facility, or the release, spilling, disposal or discharge of
Hazardous Substances into the environment at the Tucson Facility, within the
last three years.
4.11 Employees and Benefit Plans.
4.11.1 Schedule 4.11.1 contains a true and complete list of
the following:
(i) All arrangements, written or oral, which compel the
employment of any person in the status of "employee" or "employees" in
the Honeywell Product Line;
(ii) All agreements, written or oral, and letters of
understanding with labor unions or associations representing the
Employees;
(iii) Consulting relationships with the Honeywell Product
Line;
(iv) Strikes, slowdowns, picketing, work stoppages, threats
to organize non-union Employees or other labor issues, or other
occurrences, events or conditions of a similar character in which any
of the Employees are participating or have threatened to participate
since January 1, 1998;
(v) Any charges or complaints or petitions filed with or by
the N.L.R.B., the O.F.C.C.P. of the United States Department of Labor,
the Occupational Safety and Health Administration, the E.E.O.C. or any
similar foreign, state or local agency or commission, including charges
of race, sex, national origin, religious, handicap or age
discrimination or similar complaints against the Tucson Business,
grievance and arbitration proceedings and litigation matters including
breach of contract/wrongful discharge, and other personnel related
actions, from January 1, 1998 to the date hereof;
(vi) Any commitment or agreement to increase wages or modify
the conditions or terms of employment of the Employees;
(vii) The names and current salary rates of all employees
employed in the Honeywell Product Line and their hourly or yearly
salary, together with a summary of all bonus, incentive compensation or
other additional compensation or similar benefits paid to such persons
for the 1999 calendar year and estimated for the 2000 calendar year;
(viii)Each Seller Benefit Plan; and
(ix) Employee lease agreements relating to the Honeywell
Product Line.
4.11.2 Except as stated in Schedule 4.11.2:
(a) the Seller Benefit Plans (as defined in Section 3.2.2)
have been established and maintained in all material respects in
accordance with their terms and in compliance with all applicable laws,
including, to the extent applicable, but not limited to, the
requirements of ERISA and the Code;
(b) none of the Seller Benefit Plans subject to Part 3
Subtitle B of Title I or Title II of ERISA has incurred any
"accumulated funded deficiency" within the meaning of Section 302 of
ERISA or Section 412 of the Code (whether or not waived);
(c) no liability to the Pension Benefit Guaranty Corporation
has been incurred with respect to any of the Seller Benefit Plans
subject to Title IV of ERISA;
(d) Seller has not incurred liability for any tax imposed
under Section 4975 of the Code or Part 5 Subtitle B of Title I of ERISA
with respect to any of the Seller Benefit Plans;
(e) none of the Seller Benefit Plans is a multiemployer plan
within the meaning of Section 3(37)(A) of ERISA;
(f) no "reportable event" (within the meaning of Section 4043
of ERISA) has occurred with respect to any of the Seller Benefit Plans
since the effective date of said Section 4043;
(g) each Seller Benefit Plan which is a "group health plan",
as defined in Section 607(1) of ERISA, has been administered in
material compliance with the continuation coverage requirements of Part
6 Subtitle B of Title I of ERISA;
(h) no suit, action, litigation or claim (excluding claims for
benefits incurred in the ordinary course of plan activities) has been
brought against or with respect to any of the Seller Benefit Plans.
Except as otherwise provided in this Agreement, all contributions to
the Seller Benefit Plans that were required to be made under such
Seller Benefit Plans as of the Closing have been (or will have been by
the Closing) paid, accrued or otherwise fully reserved as of such date,
and Seller has performed (or will have performed by the Closing) all
obligations required to be performed as of such date under such plans;
(i) no event has occurred which provides a basis for the
Pension Benefit Guaranty Corporation to assert a lien on the assets of
any Seller Benefit Plan; and
(j) each individual who is characterized by the Seller as an
independent contractor for employment tax and Seller Benefit Plan
purposes has been appropriately classified as an independent contractor
under Revenue Ruling 87-41 or Section 530 of the Revenue Act of 1978
and has been properly taken into account under the eligibility or
participation provisions of the Seller Benefit Plans.
4.12 No Additional Representations. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS ARTICLE, ANY OTHER PROVISION OF THIS AGREEMENT, OR
ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES ORALLY OR IN WRITING, IT IS THE
EXPLICIT INTENT OF EACH PARTY HERETO THAT SELLER IS MAKING NO REPRESENTATION OR
WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, BEYOND THOSE EXPRESSLY GIVEN IN THIS
AGREEMENT OR ANY OF THE DOCUMENTS DELIVERED PURSUANT TO SECTION 12, INCLUDING
BUT NOT LIMITED TO ANY IMPLIED WARRANTY OR REPRESENTATION AS TO CONDITION,
MERCHANTABILITY OR SUITABILITY AS TO ANY OF THE PROPERTIES OR ASSETS OF THE
SELLER. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, OR ANY OF
THE DOCUMENTS DELIVERED PURSUANT TO SECTION 12, THE ASSETS ARE BEING SOLD ON AN
"AS IS, WHERE IS" BASIS.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
5.1 Corporate Status. Purchaser is a corporation duly organized and
validly existing under the laws of the State of Delaware, the jurisdiction in
which it is incorporated and has full power and authority to carry on its
business and to own all of its properties and assets. Purchaser has all
requisite corporate power and authority to enter into, execute and deliver this
Agreement and to perform its obligations and consummate the transactions
contemplated hereby in accordance with the terms of this Agreement.
5.2 Authorization. All corporate and other proceedings required to be
taken by or on the part of Purchaser including, without limitation, all action
required to be taken by the directors or shareholders of Purchaser to authorize
Purchaser to enter into and carry out this Agreement, have been, or prior to the
Closing will be, duly and properly taken. This Agreement has been duly executed
and delivered by Purchaser and is valid and enforceable against Purchaser in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and the rules of law governing
specific performance, injunctive relief and other equitable remedies.
5.3 Compliance. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not result in the
breach of any of the terms or conditions of, or constitute a default under, or
violate, as the case may be, the articles of incorporation, by-laws or other
organization documents of Purchaser or any material agreement, lease, mortgage,
note, bond, indenture, license or other document or undertaking, oral or
written, to which Purchaser is a party or by which Purchaser is bound or by
which any of the Assets may be affected.
5.4 [Intentionally left blank]
5.5 Brokers. No broker, investment banker, financial advisor or other
person or entity is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based on arrangements made by or on behalf of Purchaser.
6. EMPLOYEES AND EMPLOYEE BENEFITS
6.1 Employment with the Purchaser.
6.1.1 Purchaser shall offer employment, subject to Purchaser's
employment conditions applicable to all prospective employees of Purchaser
(including, at Purchaser's discretion, without limitation, a completed
employment application, background investigation, drug screen and
confidentiality agreement) to all regular employees of Seller who are (a) not
disqualified as a result of a failure to complete the required forms, a positive
drug screen, or an unsatisfactory background investigation, (b) employed,
directly or indirectly, on or in support of the Honeywell Product Line at the
Tucson Facility as determined by the Seller, (c) listed on Schedule 6.1, and (d)
who are employed by the Seller on the Closing (the "Employees"). Schedule 6.1
may also include employees on an approved leave of absence, disability or sick
leave, provided, however that Purchaser shall not be required to make any offer
of employment to any such employee until the Seller notifies the Purchaser that
such employee's leave or disability has terminated and the employee is capable
of commencing a work schedule satisfactory to Purchaser.
6.1.2 Employees who satisfy Purchaser's employment conditions
shall become employees of Purchaser effective on the later of the first business
day following the end of the Seller's regularly scheduled payroll period which
concludes immediately following the Closing (the "Effective Date") or, if later,
the date of return to work from the approved leave of absence, or disability, as
the case may be (the "Transferred Employees"). Purchaser shall reimburse Seller
for its actual wage, payroll taxes and benefit payments or costs (other than
costs for welfare benefits maintained by Seller in accordance with Section
6.9.3) relating to the period between the Closing and the Effective Date.
Transferred Employees shall no longer be employees of Seller or its affiliated
entities after the Effective Date (or the date of return to work, if later).
Notwithstanding any provision of this Section 6.1 to the contrary, Employees
who, by the Effective Date, do not satisfy the Purchaser's employment conditions
will remain employees of the Seller and will not be eligible for any employee
benefits of the Purchaser. Commencing on the Effective Date (or such later
applicable date of employment of each Transferred Employee on leave or other
absence on the Closing), Purchaser shall have sole responsibility for the
payment of all wages, overtime, sick pay, taxes, withholdings, and employee
benefits with respect to the Transferred Employees as it relates to employment
with the Purchaser after the Effective Date. Notwithstanding the previous
sentence, Transferred Employees shall continue to be covered by Seller's welfare
plans through the end of the month in which their employment with Seller
terminates at Seller's cost.
6.1.3 Nothing contained in this Agreement shall be construed
as a guaranty to Purchaser that any number of the Employees will satisfy
Purchaser's conditions of employment or as a representation or warranty
regarding the skill level or performance of any of the Employees.
6.2 Hiring Requirements. Purchaser shall provide employment to the
selected Employees for positions similar to the positions in which such selected
Employees are employed by the Seller immediately prior to the Closing. The
Seller shall provide to Purchaser a copy of each Transferred Employee's
personnel file and any other documentation related to each Transferred
Employee's performance with Seller, provided that the Seller may require a
written consent from each Transferred Employee to provide such copy and
Purchaser may require such consent as a condition of employment for each
Transferred Employee. Purchaser shall provide an individual, signed employment
acceptance letter to each Transferred Employee confirming that he or she is an
employee of Purchaser as of his or her employment commencement date.
6.3 Compensation and Benefits.
6.3.1 Purchaser agrees to provide the Transferred Employees
base compensation equal to or greater than Seller's compensation immediately
prior to the Closing. Purchaser agrees to provide the Transferred Employees
employee benefits and policies that are at least comparable in the aggregate to
the employee benefits and policies currently provided to them by the Seller,
provided, however, that any stock option, stock purchase, or other equity-based
plan of the Seller shall not be taken into account for this purpose. Seller will
retain liability relating to all Seller Benefit Plans as described in Section
3.2.2, including any stock option, stock purchase or other equity-based
compensation plan.
6.3.2 [Intentionally left blank]
6.3.3 [Intentionally left blank]
6.3.4 All course work of a Transferred Employee currently in
progress for which either Seller has approved tuition aid shall be paid for by
the Seller through December 31, 2000. Course work that has been approved by the
Seller and paid for by the employee by the Closing but not yet started and is
subject to reimbursement to the employee under the Seller's tuition aid policy
shall be reimbursed by the Seller. "Course work" does not mean a degree program,
but only refers to the specific class in progress during a particular term in
that school.
6.4 Minimum Employment Period. Purchaser does not guarantee any minimum
period of employment or any particular work location for the Transferred
Employees, provided that in the event of any reductions-in-force ("RIF") within
twelve (12) months after the Closing, Purchaser will provide to those
Transferred Employees who are subject to a RIF, cash severance pay in an amount
at least equal to Sellers' RIF cash severance payment benefits, if any, under
Seller's currently applicable plans, as described on Schedule 4.11.1 (such
Schedule shall include the method of determination for the amount of any such
cash severance payment benefit). Such severance pay shall not apply to
Purchaser's termination of a Transferred Employee's employment for cause.
6.5 Hiring Process. Purchaser shall be solely responsible for any and
all communications Purchaser makes to any employees of the Seller during the
process of making offers of employment regardless of the Seller's involvement in
such process or receipt of documents and materials to be distributed to any
employees of the Seller. The Seller is not authorized to make, and will not
make, communications to Seller's employees about the prospective terms of
employment with Purchaser, except with Purchaser's prior written consent.
Purchaser shall comply with all laws in connection with its communications to
the Seller's employees and the hiring and transition of such employees.
6.6 Solicitation. For a period of twelve (12) months from and after the
Closing, neither Purchaser nor Seller shall directly or indirectly, or by action
in concert with others, solicit or attempt to solicit any employee of the other,
except to the extent that Purchaser will subject to the employment conditions of
Section 6.1, offer employment to the Seller's employees identified on Schedule
6.1, without the prior written authorization of the other Party.
6.7 Confidentiality. In addition to Purchaser's standard employee
confidentiality agreement, a separate confidentiality agreement may be required
of all employees and contractors of Purchaser working in the Tucson Facility due
to any shared tenancy relationship that may be in place at such site. This
separate confidentiality agreement will be subject to approval by both Parties.
Purchaser acknowledges and agrees that Transferred Employees may have continuing
confidentiality obligations to Seller with respect to information relating to
Seller's provision of electronic manufacturing services for customers other than
Purchaser, and that such information may not be disclosed by the Transferred
Employees.
6.8 Control. Purchaser shall have and maintain complete control over
its employees, including but not limited to the Transferred Employees, including
the right to hire, discharge, replace, evaluate and direct their activities
after the Closing subject to (a) the Seller's retained rights of control and
direction during the period commencing on the Closing and ending on the
Effective Date, which control and direction shall be at the direction of the
Purchaser and (b) the RIF severance benefits contained in Section 6.4.
6.9 Employee Benefit Plans.
6.9.1 Retiree and Inactive Employee Benefits. Seller shall
retain responsibility for all benefits under Seller Benefit Plans to Employees
and former employees of the Seller who have retired or will retire on or before
the Effective Date or who are on layoff, medical disability or other leave of
absence and beneficiaries of such Employees or former employees of the Seller,
including, without limitation, medical and life insurance benefits and
regardless of whether such benefits are funded or unfunded or accrued or
unaccrued (collectively, "Retiree and Inactive Employee Benefits"), and
Purchaser shall have no responsibility therefor.
6.9.2 Employee Benefit Plans for Transferred Employees. (a)
Except as otherwise specifically provided in this Section 6, effective on the
Effective Date, each Transferred Employee shall cease to be an active
participant in Seller Benefit Plans and shall become eligible to participate in
the benefit plans, policies and arrangements of the Purchaser subject to the
terms and conditions of this Agreement and of such plans, policies and
arrangements. Except as expressly provided herein, Purchaser assumes no
liability or obligation with respect to, and receives no right or interest in
any of Seller Benefit Plans.
(b) Seller shall cause each Transferred Employee to
become fully vested in the benefits accrued as of the Effective Date under any
of the Seller Benefit Plans which are "employee pension benefit plans", as
defined in Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"). Purchaser shall grant to each Transferred Employee credit
for his or her service with Seller prior to the Effective Date for purposes of
participation eligibility, vesting and retirement eligibility, but not for
benefit accrual, under any "employee pension benefit plan" maintained by the
Purchaser for the Transferred Employees. Notwithstanding the preceding sentence,
Transferred Employees' prior service with the Purchaser prior to the Effective
Date shall be credited by the Purchaser for the purposes of such plans under the
Purchaser's generally applicable re-employment policies.
6.9.3 Welfare Plans. With respect to Purchaser's "employee
welfare benefit plans", as defined in Section 3(1) of ERISA, and other welfare
and fringe benefit arrangements applicable to the Transferred Employees,
including but not limited to vacation, sick time, health, disability and
severance, Purchaser shall (i) grant service credit with Seller prior to the
Effective Date to each Transferred Employee for eligibility purposes and (ii)
grant, if applicable, credit for deductibles, co-payments and maximum
out-of-pocket maximums previously paid in accordance with evidence provided by
Seller. Notwithstanding the preceding sentence, prior service with the Purchaser
prior to the Effective Date shall be credited by the Purchaser for purposes of
such Plans under the Purchaser's generally applicable re-employment policies.
Purchaser shall not exclude any Transferred Employee from a medical plan on
account of a preexisting condition. Seller shall remain solely responsible for
all claims incurred by any Employee or Transferred Employee under any of
Seller's "employee welfare benefit plans" on or before the last day of the month
in which the Transferred Employees employment terminates with the Seller and
Purchaser shall have no liability for any such claims incurred. Coverage under
the Purchaser's plans shall commence on the first day of the month coinciding
with or next following the Effective Date.
6.9.4 Other Compensation. All accrued but unpaid holiday,
vacation or sick pay of any Transferred Employee shall be paid by Seller, and
Purchaser shall have no liability or obligation for any such pay to any
Transferred Employee. All unpaid wages, salaries and bonuses earned for periods
prior to the Effective Date shall be paid by Seller on or after the Effective
Date in accordance with Seller's normal pay practices and pursuant to applicable
law subject to reimbursement by Purchaser for actual payments made by the Seller
with respect to services rendered by Transferred Employees during the period
from the Closing to the Effective Date.
6.9.5. Severance. Seller shall pay and be solely liable and
shall indemnify and hold Purchaser harmless for all obligation, cost or expense
for severance pay, termination indemnity pay, salary continuation, special
bonuses or like compensation under Seller's plans, policies or arrangements and
for all obligation, cost or expense for liability under the Worker Adjustment
and Retraining Notification Act, arising from, relating to or claimed by reason
of actions required by this Agreement (except as provided in Section 6.10.3) or
which result from or relate to actions taken by Seller on or before the
Effective Date. Purchaser is liable for providing notice as a result of actions
taken by Purchaser after the Effective Date.
6.9.6 Health Care Continuation Coverage. Seller shall pay and
be solely liable and shall indemnify and hold Purchaser harmless from and
against and in respect of any and all losses, damages, liabilities, taxes,
sanctions that arise under section 4980B of the Code, interest and penalties,
costs and expenses (including, without limitation, disbursements and reasonable
legal fees incurred in connection therewith and in seeking indemnification
therefor, and any amounts or expenses required to be paid or incurred in
connection with any action, suit, proceeding, claim, appeal, demand, assessment
or judgment) imposed upon, incurred by, or assessed against Purchaser arising by
reason of or relating to any failure to comply with the continuation health care
coverage requirements of section 4980B of the Code and sections 601 through 608
of ERISA which failure occurred with respect to any current or prior employee or
any qualified beneficiary of such employee (as defined in section 4980B(g)(l) of
the Code) on or prior to the Effective Date or, which failure occurred as a
result of the actions required by this Agreement.
6.10 Indemnification.
6.10.1 The Seller shall not in any manner be responsible for
any liability, claim or obligation which in any way arises out of the
Purchaser's control or direction over the Transferred Employees between the
Closing and the Effective Date or the Purchaser's employment of the Transferred
Employees after the Closing, except as may arise from or relate to Seller's
communications with or treatment of the Employees prior to the Closing, the
Seller's conduct in identifying employees employed on the Honeywell Product Line
and therefore eligible for employment with Purchaser as identified on Schedule
6.1, the Seller's control over the Seller's Facility on or after the Closing, or
the Seller's exercise of any retained right of control described in Section
6.8(a) (other than pursuant to the direction of Purchaser). Purchaser agrees to
indemnify and hold the Seller harmless from any liability, claim or obligation
arising from or relating to the Transferred Employees or beneficiaries of
Transferred Employees which in any way arises from or relates to Purchaser's
control, direction or employment of the Transferred Employees after the Closing,
except as may arise from or relate to the Seller's communications with or
treatment of the Employees prior to the Closing, the Seller's conduct in
identifying employees employed on the Honeywell Product Line and therefore
eligible for employment with Purchaser as identified on Schedule 6.1, the
Seller's control over the Tucson Facility, or the Seller's exercise of any
retained right of control described in Section 6.8(a) (other than pursuant to
the direction of Purchaser).
6.10.2 Purchaser shall not in any manner be responsible for
any liability, claim or obligation which in any way arises out of the Seller's
employment of the Transferred Employees prior to the Effective Date, except as
may arise from or relate to Purchaser's communications with or treatment of the
Employees prior to the Effective Date or the Purchaser's control and direction
with respect to the Transferred Employees for the period between the Closing and
the Effective Date. The Seller agrees to indemnify and hold Purchaser harmless
from any liability, claim or obligation arising from or relating to the
Transferred Employees or beneficiaries of Transferred Employees which in any way
arises from or relates to the Seller's employment of the Transferred Employees
prior to the Effective Date, the Transferred Employees' employment at the Tucson
Facility, the Seller's exercise of any retained right of control with respect to
Transferred Employees as described in Section 6.8(a) (other than pursuant to the
direction of Purchaser), or the Seller's conduct in identifying employees
employed on the Honeywell Product Line and therefore eligible for employment
with Purchaser as identified on Schedule 6.1, except as may arise from or relate
to Purchaser's communications with or treatment of the Employees prior to the
Effective Date.
6.10.3 To the extent that this transaction results in a RIF
within 30 days after the Closing affecting more than 25 of the Seller's
remaining employees at the Tucson Facility, defined here to exclude the
Transferred Employees, any Employee described in Section 6.1 who declined to
accept employment with Purchaser (including any employee who would otherwise
have been a Transferred Employee but who was disqualified as a result of a
failure to complete required forms, a positive drug screen, an unsatisfactory
background investigation, or other generally applicable pre-employment
requirements of Purchaser described in Section 6.1), and the Seller's employees
identified on Schedule 6.10.3(a) as employed on the Seller's other product lines
at the Tucson Facility, Purchaser agrees to reimburse the Seller for it's
average RIF cash severance payments actually made to those employees selected
for RIF under the Seller's severance payment schedule in Schedule 6.10.3(b), to
the extent that such RIF affects more than 25 employees (as determined in
accordance with this Section 6.10.3) and, in any event, in an amount not to
exceed $350,000.
6.11 Transitional Assistance. To facilitate the transition of the
Business to the Purchaser, Seller agrees to make available, at Seller's cost, on
an as needed basis and for a minimum of 120 days after the Closing, the
employee(s) listed on Schedule 6.11.
6.12 Leased Employees. To the extent that it has the authority to do
so, Seller agrees to make any leased employees performing services directly or
indirectly on or in support of the Honeywell Product Line at the Tucson Facility
available to the Purchaser. Notwithstanding the preceding sentence, Seller shall
remain liable for any claims, liabilities or obligations attributable to the
performance of services by such leased employees for Seller (including any
claims by third parties arising in connection with Seller's relationship with
such leased employees) prior to and after the Closing.
6.13 Information Returns. Seller shall file all information returns
required under Section 6041 of the Code with respect to wages paid to
Transferred Employees by Seller (including payments made pursuant to Sections
6.3.4 and 6.9.4) and Purchaser shall file all such information returns with
respect to wages paid by Purchaser to Transferred Employees after the Effective
Date.
7. REAL PROPERTY AND TRANSITION
7.1 Sublease Agreement. At the Closing, Purchaser and Seller shall
execute the sublease agreement attached hereto as Exhibit 7.1(a), pursuant to
which Purchaser will lease the Tucson Facility commencing upon the Closing, (the
"Sublease Agreement"). Seller's lease agreement with Buckhorn Trading Co., Ltd.
(the "Lessor") dated December 18, 1998 covering the Tucson Facility (the "Tucson
Master Lease") requires the Lessor's consent to any sublease of the Tucson
Facility. At the Closing, Seller shall deliver to Purchaser (i) a written
consent to the Sublease Agreement, in the form of Exhibit 7.1(b), executed by
the Lessor (the "Consent to Sublease"); (ii) a non-disturbance agreement from
the Landlord regarding the Sublease in the form of Exhibit 7.1(c) (the "Lessor
Non-Disturbance Agreement"); and (iii) a non-disturbance agreement from Bank One
regarding the Sublease in the form of Exhibit 7.1(d) (the "Lender
Non-Disturbance Agreement").
7.2 Option to Purchase. The Tucson Master Lease contains an option
exercisable by Seller for the purchase of the Tucson Facility from Lessor. At
the Closing, Seller shall deliver to Purchaser an executed option to purchase
and right of first refusal, executed by Lessor, with respect to the Tucson
Facility (the "Option to Purchase and Right of First Refusal") in the form of
Exhibit 7.2(a), along with the executed written consent of Seller to such
agreement, in the form of Exhibit 7.2(b) (the "Memorandum of Agreement ").
7.3 Transition Agreement. At the Closing, Purchaser and Seller shall
execute the transition agreement attached hereto as Exhibit 7.3, pursuant to
which Seller will provide Purchaser and Purchaser will provide Seller with
certain services in connection with the transition of the Honeywell Product Line
to Purchaser (the "Transition Agreement").
7.4 Permits. Seller shall cooperate with Purchaser in arranging for the
transfer of obtaining of any permits, licenses or other approvals required for
Purchaser's operations at the Tucson Facility.
8. PRE-CLOSING COVENANTS
8.1 Access to Records and Properties. From the date hereof until the
Closing or earlier termination of this Agreement, Seller will:
8.1.1 provide Purchaser, its officers, counsel and other
representatives with reasonable access to the Assets, the principal personnel
and representatives of Seller, and such books and records pertaining to the
Honeywell Product Line as Purchaser may reasonably request, during Seller's
regular business hours, provided that Purchaser has provided Seller with
reasonable prior notice, and provided further that Purchaser agrees that such
access will be requested and exercised with due regard to minimizing
interference with the operations of the Tucson Business and provided that
disclosure would not violate the terms of any agreement to which Seller is bound
or any applicable law or regulation; and
8.1.2 make available to Purchaser for inspection and review
all documents, or copies thereof, listed in the Schedules hereto, and all files,
records and papers of any and all proceedings and matters listed in the
Schedules hereto, except to the extent prohibited or restricted by law,
regulation, contract with a third party or where the documents are subject to
the attorney-client or work product privilege.
8.2 Public Announcements. On and after the date hereof, neither of the
Parties shall issue any press release or make any public statement relating to
the subject matter of this Agreement (other than communications with persons in
the ordinary course of business relating to a press release otherwise permitted
by this Agreement) prior to obtaining the other Party's approval, which approval
shall not be unreasonably withheld, except that no such approval shall be
necessary to the extent that legal counsel to the Party proposing to make such
disclosure advises such Party that such disclosure is required by law or a
listing agreement or such disclosure is reasonably prudent to avoid potential
liability on the part of any person under the federal securities laws. Any
advice of counsel shall be confirmed in writing and promptly delivered to the
other Party.
8.3 Consents. Prior to the Closing Seller will assist Purchaser and
reasonably cooperate with Purchaser to obtain or receive an assignment of, at
Purchaser's cost and expense, any and all material governmental permits,
licenses approvals, certifications of inspection, filings, franchise and other
authorizations or such other concurrences as may be required in order for it to
conduct the Honeywell Product Line and use and operate the Assets on the
Closing. Prior to the Closing Seller shall at its sole cost and expense obtain
any Third Party Consents, as defined in Section 10.1.6.
8.4 Operation of the Honeywell Product Line. From and after the date
of this Agreement and until the Closing or as otherwise contemplated by this
Agreement or as Purchaser shall otherwise consent in writing, Seller:
8.4.1 will carry on the Honeywell Product Line in the ordinary
course of business of business, in accordance with prudent business practices,
and in conformance with the Honeywell Orders, including without limitation
keeping in full force and effect insurance comparable in amount and scope to the
coverage maintained by it (or on behalf of it) on the date hereof, and will not
enter into any other transaction relating to the Assets, the Honeywell Product
Line or the Tucson Facility other than in the ordinary course of business
consistent with past practice;
8.4.2 will not permit all or any of the Assets (real or
personal, tangible or intangible) to be sold, licensed or subjected to any lien
or other encumbrance except, with respect to the Inventory, in dispositions of
inventory for fair value in the ordinary course of business consistent with past
practices;
8.4.3 will operate the Honeywell Product Line and will conduct
its operations at the Tucson Facility in compliance in all material respects
with all applicable federal, state and local laws and regulations;
8.4.4 will maintain its inventory levels relating to the
Honeywell Product Line and its operations at the Tucson Facility in a manner and
in an amount consistent with past practice;
8.4.5 will not grant any general increase in the compensation
of Transferred Employees (including any such increase pursuant to any bonus,
pension, profit-sharing, vacation or other plan or commitment), grant any
increase in the compensation payable or to become payable to any Transferred
Employee, or amend any employee benefit plans in which any Transferred Employee
participates or is eligible for participation;
8.4.6 will not take any action that would cause any of the
representations and warranties made by Seller in this Agreement not to remain
true and correct;
8.4.7 will not modify, amend in any material respect or
terminate any Contract; and
8.4.8 will continue to maintain in all material respects the
Assets and the Tucson Facility in accordance with current practice in a
condition suitable for their current use.
8.5 Security Interests. Not later than five days prior to the Closing,
Seller shall furnish to Purchaser evidence of satisfactory Uniform Commercial
Code searches in the States of Arizona and Colorado and each other jurisdiction
(state and county or locality, as the case may be) in which any of the Assets
are located showing no Liens against any of the Assets which have not been
released, except for the Bank Liens (which will be released and discharged at
the Closing).
9. CLOSING
9.1 Closing. The consummation of the transactions contemplated hereby,
will take place as of 12:01 a.m. Arizona time on February 17, 2000, or such
other date agreed to by the Parties in writing, at such place and time as may be
agreed to by the Parties in writing (the "Closing").
10. CONDITIONS TO CLOSING
10.1 Conditions to the Obligations of Purchaser. The obligations of
Purchaser under this Agreement are subject to the fulfillment prior to or at the
Closing of each of the following conditions, any one or more of which may be
waived by Purchaser in its sole discretion:
10.1.1 No injunction or restraining order shall be in effect
to forbid or enjoin, and no suit, action or proceeding shall be pending or
threatened to prohibit, nullify or otherwise adversely affect the consummation
of the transactions contemplated by this Agreement and the Exhibits and
Schedules hereto or Purchaser's ownership, use or enjoyment of the Assets, or
any part thereof, or the operation of the Honeywell Product Line or any part
thereof.
10.1.2 The representations and warranties of Seller contained
in this Agreement or in any Exhibit hereto or certificate, document or other
instrument delivered pursuant hereto or in connection with the transactions
contemplated hereby shall be complete, true and correct in all material
respects, without regard to materiality limitations contained in such
representations and warranties, on the Closing, with the same force and effect
as though such representations and warranties had been made on and as of the
Closing, except to the extent any such representation or warranty are made as of
a specified date, in which case such representation or warranty shall be
complete, true and correct in all material respects as of the date specified.
10.1.3 Seller shall have performed all of its covenants,
obligations and agreements contained in this Agreement to be performed and
complied with by it prior to the Closing.
10.1.4 Purchaser shall have received all certificates,
instruments, agreements, and other documents to be delivered pursuant to Section
12.1.
10.1.5 Purchaser shall have received all documents,
information and confirmations contemplated by Section 2.4 to Purchaser's
satisfaction.
10.1.6 Seller shall have obtained and delivered to Purchaser
all third party consents required for the assignment of the Contracts and
transfer of the Assets to Purchaser, including, but not limited to any consents
that may be required of Seller's lenders, shareholders, or creditors (the "Third
Party Consents").
10.1.7 Purchaser shall have received all such agreements,
instruments and documents as it shall reasonably require, including without
limitation, consents, releases, and executed UCC-3 termination statements, to
evidence the complete and unconditional release and discharge of any and all
Liens, including without limitation the Bank Liens, against any of the Assets,
the 1997 License, the EFTC Intellectual Property, and the Honeywell Orders.
10.1.8 [Intentionally left blank]
10.1.9 The Parties shall have prepared and agreed upon in
writing any revisions to Schedule 1.1.1 and Schedule 1.1.2 to finalize the
calculation of the Final Inventory Value and the Final Personal Property Value.
10.2 Conditions to the Obligations of Seller. The obligations of Seller
under this Agreement are subject to the fulfillment, prior to the Closing, of
each of the following conditions, any one or more of which may be waived by the
Seller in its sole discretion:
10.2.1 No injunction or restraining order shall be in effect
to forbid or enjoin, and no suit, action or proceeding shall be pending or
threatened to prohibit, nullify or otherwise adversely affect, the consummation
of the transactions contemplated by this Agreement.
10.2.2 The representations and warranties of Purchaser
contained in this Agreement or in any Exhibit hereto or certificate, document or
other instrument delivered pursuant hereto or in connection with the
transactions contemplated hereby shall be complete, true and correct in all
material respects, without regard to materiality limitations contained in such
representations and warranties, on the Closing, with the same force and effect
as though such representations and warranties had been made on and as of the
Closing, except to the extent any such representation or warranty are made as of
a specified date, in which case such representation or warranty shall be
complete, true and correct in all material respects as of the date specified.
10.2.3 Purchaser shall have performed all of its covenants,
obligations and agreements contained in this Agreement to be performed and
complied with by the Closing.
10.2.4 Seller shall have received all certificates,
instruments, agreements and other documents to be delivered pursuant to Section
12.2.
10.2.5 Seller shall have obtained the Consent to Sublease, the
Option to Purchase and Right of First Refusal and the Memorandum of Agreement.
10.2.6 [Intentionally left blank]
10.2.7 The Parties shall have prepared and agreed upon in
writing any revisions to Schedule 1.1.1 and Schedule 1.1.2 to finalize the
calculation of the Final Inventory Value and the Final Personal Property Value.
11. TERMINATION AND SURVIVAL
11.1 Termination. Both of the Parties hereto shall use reasonable
efforts to bring about the satisfaction of the conditions hereunder prior to and
at the Closing. Notwithstanding anything to the contrary set forth herein, this
Agreement may be terminated and the transactions contemplated hereby abandoned
at any time prior to the Closing:
11.1.1 by mutual written consent of Purchaser and Seller; or
11.1.2 by Purchaser or Seller, upon written notice to the
other, if such other Party or its affiliate has breached any material
representation, warranty or covenant contained in this Agreement in any material
respect, if the non-breaching Party has notified the breaching Party of the
breach in writing and the breach has continued without cure for a period of
fifteen days after notice of the breach; or
11.1.3 by Purchaser or Seller on the issuance of a preliminary
injunction enjoining the Closing of the transactions contemplated herein with an
outcome adverse to the Parties.
11.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 11.1, this Agreement shall become void and of no further force and
effect, and neither of the Parties hereto (nor their respective affiliates,
directors, shareholders, officers, employees, agents, consultants,
attorneys-in-fact or other representatives) shall have any liability in respect
of such termination; provided, however, that if such termination is effected
pursuant to Section 11.1.2 and the failure to consummate the transactions
contemplated hereby was the result of any of the conditions to the Closing
having not been fulfilled by reason of the breach by either of the Parties of
its covenants, representations and/or warranties set forth in this Agreement or
in any agreement, document or instrument ancillary hereto, the Party having so
breached shall remain liable to the other Party.
12. CLOSING DOCUMENTS
12.1 Documents to be Delivered by Seller. At the Closing, the
Seller shall deliver to Purchaser the following documents as appropriate:
12.1.1 A Secretary's Certificate attaching copies of Seller's
corporate action authorizing the execution, delivery and performance of this
Agreement and the transactions contemplated hereby, providing evidence of the
signatures and incumbency of each person signing any document or instrument
delivered by Seller to Purchaser in connection with the transactions
contemplated hereby, and such other information and certifications relevant to
the due authorization, execution and delivery of this Agreement as Purchaser may
reasonably request, all certified by a Secretary, Assistant Secretary or other
appropriate officer of Seller;
12.1.2 Executed bills of sale with respect to the Assets in
the form of Exhibit 12.1.2;
12.1.3 an executed Waiver of Collateral Assignment in the form
attached hereto as Exhibit 12.1.3;
12.1.4 an executed Waiver by Purchaser in connection with the
Sublease in the form attached hereto as Exhibit 12.1.4;
12.1.5 An executed Assignment Agreement in the form attached
hereto as Exhibit 1.5(a); and an executed 1997 License Amendment in the form
attached hereto as Exhibit 1.5(b);
12.1.6 A certificate of an appropriate officer of Seller
relating to the representations, warranties and covenants of Seller made herein;
12.1.7 An executed Sublease Agreement in the form attached
hereto as Exhibit 7.1(a), an executed Consent to Sublease in the form of Exhibit
7.1(b), an executed Lessor Non-Disturbance Agreement in the form of Exhibit
7.1(c), and an executed Lender Non-Disturbance Agreement in the form of Exhibit
7.1(d);
12.1.8 An executed Release Agreement in the form attached
hereto as Exhibit 1.6;
12.1.9 An executed Transition Services Agreement in the form
attached hereto as Exhibit 7.3;
12.1.10 An executed Option to Purchase and Right of First
Refusal in the form attached hereto as Exhibit 7.2(a) and an executed Memorandum
of Agreement in the form of Exhibit 7.2(b);
12.1.11 [Intentionally left blank];
12.1.12 All Third Party Consents required by Section 10.1.6;
12.1.13 All agreements, consents and/or releases required
under Section 10.1.7; and
12.1.14 Any other agreement, certificate, or other document
reasonably necessary to effectuate the transactions contemplated hereby.
12.2 Documents to be Delivered by Purchaser. At the Closing, Purchaser
shall pay the Purchase Price to Seller by wire transfer as directed in writing
by the Seller and shall execute where applicable and deliver to Seller the
following documents:
12.2.1 A Secretary's Certificate attaching copies of
resolutions of Purchaser authorizing the execution, delivery and performance of
this Agreement and the transactions contemplated hereby, providing evidence of
the signatures and incumbency of each person signing any document or instrument
delivered by Purchaser to Seller in connection with the transactions
contemplated hereby and such other information and certifications relevant to
the due authorization, execution and delivery of this Agreement as Seller may
reasonably request, all certified by a Secretary, Assistant Secretary or other
appropriate officer of Purchaser;
12.2.2 [Intentionally left blank]
12.2.3 [Intentionally left blank]
12.2.4 [Intentionally left blank]
12.2.5 Executed Assignment Agreements in the form attached
hereto as Exhibit 1.5(a); and an executed 1997 License Amendment in the form
attached hereto as Exhibit 1.5(b);
12.2.6 A certificate of an appropriate officer of Purchaser
relating to the representations, warranties and covenants of Purchaser made
herein;
12.2.7 An executed Sublease Agreement in the form attached
hereto as Exhibit 7.1(a);
12.2.8 An executed Option to Purchase and Right of First
Refusal in the form attached hereto as Exhibit 7.2(a) and an executed Memorandum
of Agreement in the form of Exhibit 7.2(b);
12.2.9 An executed Transition Services Agreement in the form
attached hereto as Exhibit 7.3; and
12.2.10 An executed Release Agreement in the form attached
hereto as Exhibit 1.6.
12.2.11 [Intentionally left blank]
12.2.12 Any other agreement, certificate, or other document
reasonably necessary to effectuate the transactions contemplated hereby.
13. POST CLOSING OBLIGATIONS
13.1 Further Assurances. From time to time after the Closing, without
further consideration, the Parties shall cooperate with each other and shall
execute and deliver instruments of transfer or assignment, or such other
documents to the other Party as such other Party reasonably may request to
evidence or perfect Purchaser's right, title and interest to the Assets, and
otherwise carry out the transactions contemplated by this Agreement. Seller also
agrees that following the Closing, for no further consideration, it will
promptly execute and deliver to Purchaser such additional releases,
terminations, discharges, satisfactions or other instruments and documents as
Purchaser may reasonably request and as may be necessary or desirable to
evidence the release and termination of all Liens with respect to the Assets,
each in a form suitable for filing or recording in any applicable jurisdiction.
13.2 Access to Books and Records. After the Closing, Purchaser shall
permit Seller to have access to and the right to make copies of such of Seller's
books, records and files as constitute part of the Assets for any reasonable
purpose at any time during regular business hours, such as for use in litigation
or financial reporting, tax return preparation, or tax compliance matters.
13.3 Cooperation.
13.3.1 Litigation. The Parties shall reasonably cooperate with
each other at the requesting Party's expense in the prosecution or defense of
any litigation or other proceeding arising from their respective operation of
the Honeywell Product Line or the Assets.
13.3.2 Taxes. Seller shall cooperate with Purchaser and shall
provide Purchaser with such assistance as may reasonably be requested by
Purchaser in connection with the preparation of any tax return and the conduct
of any audit or other examination by any taxing authority or judicial or
administrative proceedings relating to the Purchased Assets.
13.3.3 Purchase Orders. At the Closing, Seller shall make
available to Purchaser the rights and benefits of the purchase orders listed on
Schedule 1.1.3(b) (the "Purchase Orders") to the extent related to the operation
of the Honeywell Product Line, and Purchaser shall indemnify Seller for any
obligations and liabilities incurred by Seller arising therefrom. Purchaser and
Seller shall work together to determine which Purchase Orders listed on Schedule
1.1.3(b) shall be assigned by Seller and assumed by Purchaser in connection with
the operation of the Honeywell Product Line.
13.4 Inventory.
13.4.1 Purchaser agrees that it will enter into good faith
negotiations to purchase any Excess Inventory from Seller at fair market value:
(i) if offered by Seller on the same terms and conditions as such may be
obtained from third party vendor; and (ii) if and when Purchaser has a need for
such Excess Inventory in the future, in its sole determination. Purchaser shall
provide a reasonably detailed forecast of its needs for Excess Inventory. Seller
will satisfy Purchaser's requests for Excess Inventory on a quarterly basis.
Seller will make available those items of Excess Inventory in its stock, however
this Section is not intended to restrict Seller from using Excess Inventory for
its own account or selling items of Excess Inventory to third parties. The
Parties' obligations under this Section will expire on the date that is 18
months after the Closing.
13.4.2 For purposes of this Agreement, "Excess Inventory"
shall mean, with respect to the Honeywell Product Line, all of Seller's raw
materials, parts and components, and work-in-process in excess of the 12 month
requirements for the Honeywell Product Line.
13.5 Warranty Claims. With respect to warranty and products liability
claims relating to the period prior to the Closing and arising from Seller's
use, sale or distribution of circuit card assemblies manufactured on or prior to
the Closing that were part of the Honeywell Product Line, Seller shall be
responsible for and assume all costs and expenses in connection therewith and
the following process shall apply:
13.5.1 Purchaser shall promptly provide Seller with written
notice and a description of any such warranty claim;
13.5.2 Seller shall have the right to inspect the product to
which the warranty claim applies to determine the validity of such claim
(provided, however, that if such inspection does not take place within 2
business days after Seller's receipt of notice of the claim, this right will be
deemed to be waived);
13.5.3 if there is no dispute as to the validity of the
warranty claim, Purchaser shall have the right to perform warranty repair
services and shall be promptly reimbursed for such services and costs by Seller;
13.5.4 if the warranty claim is disputed, Purchaser may
proceed to perform warranty repair services pending resolution of the dispute.
Purchaser's determination to proceed with warranty repair services shall not be
deemed to be a waiver of its rights hereunder and the Parties shall negotiate in
good faith to resolve such dispute;
13.5.5 the rates to be charged to Seller for labor in
connection with such services will be the hourly rates set forth in the Amended
and Restated Supplier Partnering Agreement dated September 29, 1998 in effect
between the Parties or, if such agreement is no longer in effect any successor
agreement thereto or, if there is no successor agreement, at Purchaser's
standard hourly rates for work provided to preferred customer entities;
13.5.6 the prices to be charged to Seller for parts, raw
materials and other costs in connection with such services shall be Purchaser's
actual cost without markup.
13.6 Confidential Information. With respect to proprietary and
confidential information relating to strategic, technical and/or marketing plans
of a Party (the "Discloser") and its affiliates and their various operations
("Confidential Information") the other Party (the "Recipient") agrees that it
will not use such information for any purpose whatsoever and shall destroy or
return any remaining copies. This restriction shall not apply to any information
that the Recipient can demonstrate: (a) is or becomes publicly available through
no wrongful act or omission of Recipient; (b) was in Recipient's possession
prior to the Closing; (c) was rightfully received by Recipient from a third
party without any obligation of confidentiality; or (d) was independently
developed by Recipient or for it and that was not obtained, in whole or in part,
from the Confidential Information of Discloser. In the event that Recipient is
requested or required by subpoena or other court order to disclose any
Confidential Information, the Recipient will provide notice of such request to
the Discloser and will use reasonable efforts to resist disclosure, until an
appropriate protective order may be sought, or a waiver of compliance with the
provisions of this Section granted. If, in the absence of a protective order or
the receipt of a waiver hereunder, the Recipient is nonetheless, in the opinion
of its counsel, legally required to disclose Confidential Information, then, in
such event, the Recipient may disclose such information without liability
hereunder, provided that the Discloser has been given a reasonable opportunity
to review the text of such disclosure before it is made and that the disclosure
is limited to only the Confidential Information specifically required to be
disclosed.
13.7 Intellectual Property. Seller will cooperate with Purchaser and
HIPI upon the request of Purchaser to: (i) identify any additional items of
intellectual property which may be required by Purchaser to operate the
Honeywell Product Line as it was operated prior to the Closing; and (ii) provide
to Seller the right it may need to use such items of intellectual property in
order to operate the Honeywell Product Line. This Section is not intended to
require Seller to transfer any rights to third party software licensed by
Seller.
13.8 Leased Equipment. The Honeywell Product Line as conducted prior to
the Closing utilized a wave solder machine serial number 11876058 (the "Wave
Solder Machine") that is currently leased by Seller under a corporate master
lease agreement with Key Corp. Leasing (the "Equipment Lessor") dated December
14, 1998 (the "Equipment Lease"). Seller agrees to either (i) transfer the Wave
Solder Machine into a separate lease with the Equipment Lessor, such lease to be
assumed by Purchaser, all subject to Equipment Lessor's consent and Purchaser's
approval of lease terms; or (ii) purchase the Wave Solder Machine from the
Equipment Lessor and Purchaser shall purchase such Wave Solder Machine from
Seller at Seller's cost, all on terms acceptable to Purchaser. The parties will
cooperate with each other in good faith to effect the transactions contemplated
under this Section prior to the expiration of 120 days after the Closing.
13.9 Insurance. Seller will, within five business days of Closing,
provide a certificate of insurance naming Purchaser as additional insured with
the following limits:
Insurance Coverage and Limits
Worker's Compensation Statutory Limits
Employer's Liability $500,000 per occurrence
Comprehensive General Liability
(Contractual Liability & Completed
Operations)
Bodily Injury & Property Damage $5,000,000 combined single limit/
$5,000,000 aggregate
Automobile Liability Bodily Injury
& Property Damage - $5,000,000 combined single limit/
$5,000,000 aggregate
Seller may utilize excess liability coverage for meeting the policy limit
requirements.
14. INDEMNIFICATION
14.1 Indemnification by Seller. Seller shall indemnify, defend (subject
to the provisions of Section 14.3) and hold harmless Purchaser and Purchaser's
directors, shareholders, officers, employees, agents, affiliates, successors and
assigns from and against any and all claims, Liabilities, obligations, losses,
costs, expenses (including, without limitation, reasonable legal, accounting and
similar expenses), fines, damages (individually a "Loss" and collectively
"Losses"), arising out of:
14.1.1 any breach or violation of any of the covenants made by
Seller in this Agreement or any agreement, certificate or similar document
delivered pursuant hereto;
14.1.2 any breach of, or any inaccuracy or misrepresentation
in, any of the representations or warranties made by Seller in this Agreement or
in any Schedule, agreement, instrument, certificate or similar document required
to be delivered pursuant to the terms hereof; or
14.1.3 any Non-Assumed Liability, including, without
limitation, any warranty or product liability claims with respect to (i) circuit
card assemblies manufactured by Seller on or prior to the Closing Date that were
part of the Honeywell Product Line or (ii) the EFTC Business. For any
Non-Assumed Liabilities identified at 3.2.13 and 3.2.14 that both (a) were
caused by an entity or person other than Seller, its employees, agents,
contractors or assigns and (b) for which Purchaser gives an initial Notice of
Claim (as hereinafter defined) in writing to Seller more than ten (10) years
after the Closing Date, Seller's right to indemnification under this Section
14.1.3 shall be limited to the amount of indemnification Seller receives from
any other person or entity for such Non-Assumed Liabilities.
14.1.4 [Intentionally left blank]
14.2 Indemnification by Purchaser. Purchaser shall defend, indemnify
and hold harmless Seller and such Seller's directors, shareholders, officers,
employees, agents, representatives, affiliates, successors and assigns from and
against any and all Losses arising out of:
14.2.1 any breach or violation of any of the covenants made by
Purchaser in this Agreement or any agreement, certificate or similar document
delivered pursuant hereto;
14.2.2 any breach of, or any inaccuracy in any of the
representations or warranties made by Purchaser in this Agreement, or in any
Schedule, agreement, certificate, instrument or similar documents required to be
delivered pursuant to the terms hereof;
14.2.3 any Assumed Liability;
14.2.4 any breach of the terms of Article 6 and any
communications to the Employees by Purchaser during the hiring process and the
manner Purchaser conducts the hiring process; or
14.2.5 the hiring of the Transferred Employees by Purchaser,
the Purchaser's employment practices post-Closing, including, but not limited to
hiring and firing of employees, the compensation, benefits, employment taxes,
and treatment of the Transferred Employees by Purchaser and any failure of
Purchaser to comply with all applicable laws in connection with its employees,
including, but not limited to, the Transferred Employees, provided that this
indemnification provision shall not apply to claims arising from or related in
any way to the Seller's conduct or omissions, including the Seller's
identification of the Seller's employees identified as eligible for employment
with Purchaser as identified on Schedule 6.1 and shall not include any claims or
obligations arising in connection with services performed for the Seller by
Transferred Employees on or prior to the Closing.
14.3 Indemnification Procedure.
14.3.1 Any Party seeking indemnification hereunder (the
"Indemnitee") shall notify the Party liable for such indemnification (the
"Indemnitor") in writing of any event, omission or occurrence which the
Indemnitee has determined has given or could give rise to Losses which are
indemnifiable hereunder (such written notice being hereinafter referred to as a
"Notice of Claim"). Any Notice of Claim shall be given promptly after the
Indemnitee becomes aware of such third party claim; provided, that the failure
of any Indemnitee to give notice as provided in this Section 14.3 shall not
relieve the Indemnitor of its obligations under this Section 14.3, except to the
extent that the Indemnitor is actually prejudiced by such failure to give
notice. A Notice of Claim shall specify in reasonable detail the nature and any
particulars of the event, omission or occurrence giving rise to a right of
indemnification. The Indemnitor shall satisfy its obligations hereunder, 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 Section 14.3.2 below, its obligation to indemnify the
Indemnitee with respect thereto shall be suspended.
14.3.2 Except as provided in Section 14.3.3 below, with
respect to any third party claim, demand, suit, action or proceeding that 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, action or proceeding 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 cross claims or
counterclaims it may have. So long as the Indemnitor is defending in good faith
any such third party claim, demand, suit, action or proceeding, the Indemnitee
shall at all times cooperate, at its own expense, 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, action or
proceeding, 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 be
entitled to all amounts paid as a result of such third party claim, demand, suit
or action or any compromise or settlement thereof. Neither Seller nor Purchaser
shall make any compromise of asserted liability for which indemnification is or
may be sought pursuant to this Section 14.3.2 if such compromise includes the
payment of money or creates any obligation of the other Party hereto, unless
such other Party shall have given its prior written consent to such compromise.
14.3.3 Notwithstanding the above, with respect to any third
party claim, demand, suit, action or proceeding which is the subject of a Notice
of Claim and subject to indemnity under Section 14.1, Seller shall permit
Purchaser, at Purchaser's option, to defend, contest or otherwise protect
against any such claim, demand, suit, action or proceeding with legal counsel of
its own selection and at Seller's expense. Purchaser may exercise its option at
any time upon written notice to Seller. Seller shall reimburse Purchaser for its
actual reasonable costs and expenses, including legal fees and costs, in
connection with any such defense assumed by Purchaser (excluding the cost or
overhead relating to in-house counsel). Seller 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 cross claims or counterclaims it may have. So long as the
Purchaser is defending in good faith any such third party claim, demand, suit,
action or proceeding, the Seller shall at all times reasonably cooperate, at its
own expense, 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, Purchaser. In the event that the
Purchaser fails to timely defend, contest or otherwise protect against any such
third party claim, demand, suit, action or proceeding, Seller 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 be entitled to all amounts paid as a result
of such third party claim, demand, suit or action or any compromise or
settlement thereof.
14.4 Survival and Limitations. The provisions of this Article 14 shall
survive the Closing. The warranties and representations of the Seller contained
in this Agreement or in any instrument delivered pursuant hereto will survive
the Closing and will remain in full force and effect thereafter for a period of
one year after the Closing and shall be effective with respect to any inaccuracy
therein or breach thereof, notice of which shall have been duly given within
such one year period, in accordance with Section 14.3 hereof. Anything to the
contrary contained herein notwithstanding, (i) Purchaser shall not assert any
claim against Seller for indemnification hereunder unless and until the amount
of such claim or claims shall exceed Two Hundred Thousand Dollars ($200,000)
calculated on a cumulative basis and not a per item basis; (ii) Purchaser shall
not be entitled to recover from Seller more than an aggregate of an amount equal
to twenty-five percent (25%) of the total Purchase Price with respect to all
claims for indemnity or damages whether such claims are brought under this
Article 14 or otherwise. The terms of the foregoing sentence shall not apply to
Seller's obligation to provide indemnification to Purchaser with respect to the
matters set forth in Section 3.2 (Non-Assumed Liabilities), Article 6 (Employees
and Employee Benefits), Section 4.5 (Title), Section 4.6 (Taxes), Section 4.10
(Environmental), and Section 4.11 (Employees and Benefit Plans) and any matter
to be performed by Sellers subsequent to the applicable Closing pursuant to this
Agreement or any document delivered by Sellers pursuant to Section 12.
14.5 Reduction for Insurance and Taxes. The amount (an "Indemnity
Payment") which an Indemnifying Party is required to pay on behalf of any
Indemnitee pursuant to this Article 14 shall be reduced by the amount of any
insurance proceeds actually received by or on behalf of the Indemnitee in
reduction of the related indemnifiable loss. An Indemnitee which shall have
received or on behalf of which there shall be paid an Indemnity Payment and
which shall subsequently receive, directly or indirectly, insurance proceeds in
respect of the related indemnifiable loss, shall pay to the Indemnifying Party
the amount of such insurance proceeds or, if lesser, the amount of the Indemnity
Payment.
14.6 Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER
PARTY BE RESPONSIBLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS), EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SAME AND REGARDLESS OF THE FORM OF THE
ACTION.
15. MISCELLANEOUS
15.1 Expenses. Except as specifically set forth elsewhere herein each
of the Parties hereto shall pay its own expenses and costs incurred or to be
incurred by it in negotiating, closing and carrying out this Agreement.
15.2 Notices. Any notice or communication given pursuant to this
Agreement by a Party hereto to the other Party shall be in writing and hand
delivered, or mailed by registered or certified mail, postage prepaid, return
receipt requested (notices so mailed shall be deemed given when mailed), or sent
via facsimile, with an original mailed as follows:
If to Purchaser: Honeywell International Inc. Engine Systems
000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President & General Counsel,
Engines & Systems
Fax No.: (000) 000-0000
If to Seller: EFTC Corporation
0000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: President
Fax No: (000) 000-0000
With a copy to: Holme Xxxxxxx & Xxxx, LLP
1400 Lincoln, Suite 4100
Xxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxx
Fax No.: (000) 000-0000
15.4 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
15.5 Entire Agreement. This Agreement is the entire agreement between
the Parties hereto with respect to the subject matter hereof and supersedes all
prior communications, representations, agreements and understandings between the
Parties hereto, whether oral or written.
15.6 Construction. When the context so requires, references herein to
the singular number include the plural and vice versa and pronouns in the
masculine or neuter gender include the feminine. The headings contained in this
Agreement and the tables of contents, exhibits and schedules are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
15.7 Assignment. This Agreement may not be assigned without the prior
written consent of the other Party hereto, which consent shall not unreasonably
be withheld.
15.8 Amendment. This Agreement may be amended only by written
agreement duly executed by representatives of all Parties hereto.
15.9 Applicable Law. This Agreement shall be construed in accordance
with the laws of the State of Arizona, disregarding its conflicts of laws
principles which may require the application of the laws of another
jurisdiction. Each of the Parties hereby irrevocably submits to the jurisdiction
of any state or federal court sitting in Phoenix, Arizona in any action or
proceeding brought to enforce or otherwise arising out of or relating to this
Agreement and irrevocably waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of venue in any such
action or proceeding in any such forum in Phoenix, Arizona and hereby further
irrevocably waives any claim that any such forum is an inconvenient forum.
15.10 Failure to Close. If for any reason this Agreement is terminated
prior to Closing, each Party shall promptly upon the request of any other Party
return to such other Party all documents and other information (or notes made
therefrom), including all originals and all copies thereof, theretofore
delivered by or on behalf of such other Party. Purchaser shall in any case
comply with the terms of Section 13.6 hereof.
15.11 No Third Party Rights. This Agreement is not intended and shall
not be construed to create any rights in any parties other than Seller and
Purchaser and no other person shall assert nor have any rights as a third party
beneficiary hereunder.
15.12 Schedules and Exhibits. The Schedules and Exhibits attached
hereto are incorporated into this Agreement and shall be deemed a part hereof as
if set forth herein in full. References herein to "this Agreement" and the words
"herein," "hereof" and words of similar import refer to this Agreement
(including it Schedules and Exhibits) as an entirety. In the event of any
conflict between the provisions of this Agreement and any such Schedule or
Exhibit, the provisions of this Agreement shall control.
15.13 Waivers. Any waiver of rights hereunder must be set forth in
writing. A waiver of any breach or failure to enforce any of the terms or
conditions of this Agreement shall not in any way affect, limit or waive either
Party's rights at any time to enforce strict compliance thereafter with every
term or condition of this Agreement.
15.14 Severability. If and to the extent that any court of competent
jurisdiction holds any provisions (or any part thereof) of this Agreement to be
invalid or unenforceable, such holding shall in no way affect the validity of
the remainder of this Agreement.
15.15 [Intentionally left blank]
IN WITNESS WHEREOF, Seller and Purchaser have duly executed and delivered this
Agreement as of the day and year first above written.
"PURCHASER" HONEYWELL INTERNATIONAL INC.
ENGINES AND SYSTEMS
By: /s/
Title: Vice President and General Counsel
"SELLER" EFTC CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
TABLE OF SCHEDULES
Schedule Content
----------------------------- --------------------------------------------------
1.1.1 Personal Property including Base Personal Property
Value (final and updated)
1.1.2 Inventory including Base Inventory Value (final
and updated)
1.1.3(a) Contracts
1.1.3(b) Purchase Orders
1.5 Honeywell Orders
4.4 Contracts in default
4.5 Liens
4.10 Environmental Disclosure Schedule
4.11.1 Employees and Benefit Plans
4.11.2 Employees and Benefit Plans Disclosure Schedule
6.1 Tucson Facility Employees
6.10.3(a) Non-Honeywell Product Line Employees at Tucson
Facility
6.10.3(b) EFTC Severance Payment Schedule
6.11(a) Transition Assistance Staff
TABLE OF EXHIBITS
Exhibit Content
----------------------------- --------------------------------------------------
1.5(a) Assignment and Assumption Agreement
1.5(b) 1997 License Amendment
1.6 Release Agreement
7.1(a) Sublease Agreement
7.1(b) Written Consent of Lessor to Sublease Agreement
7.1(c) Lessor Non-disturbance Agreement
7.1(d) Lender Non-disturbance Agreement
7.2(a) Option to Purchase and Right of First Refusal
7.2(b) Memorandum of Agreement
7.3 Transition Services Agreement
12.1.2 Xxxx of Sale
12.1.3 Bank One Waiver of Collateral Assignment
12.1.4 Waiver by Purchaser (re: Sublease)
