Exhibit 2.2
Execution Copy
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ASSET PURCHASE AGREEMENT
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Among
XXXXXXXX'X TAVERN, INC.
THE YANKEE CANDLE COMPANY, INC.,
and
XXXXXXX XXXXXXXXX
Dated April 1, 1998
TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................................1
SECTION 1.01. Certain Defined Terms......................................1
SECTION 1.02. Other Defined Terms........................................3
SECTION 1.03. Incorporation by Reference.................................3
ARTICLE II PURCHASE AND SALE.................................................4
SECTION 2.01. Sale and Purchase of the Acquired Assets...................4
SECTION 2.02. Excluded Assets............................................5
SECTION 2.03. Assumption of Liabilities..................................6
SECTION 2.04. Excluded Liabilities.......................................6
SECTION 2.05. Purchase Price.............................................7
SECTION 2.06. Allocation of Purchase Price...............................7
SECTION 2.07. Assignment of Commitments, Rights and
Obligations.............................................8
SECTION 2.08. Payment of Taxes and Fees..................................8
SECTION 2.09. Notices of Sale............................................8
SECTION 2.10. The Closing................................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER....................9
SECTION 3.01. Incorporation by Reference.................................9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER..................10
SECTION 4.01. Incorporation by Reference................................10
ARTICLE V COVENANTS ........................................................10
SECTION 5.01 Access and Information.....................................10
SECTION 5.02 Notices and Consents.......................................10
SECTION 5.03 Best Efforts...............................................11
SECTION 5.04 Notice.....................................................11
SECTION 5.05 Tax Provisions.............................................11
SECTION 5.06 Further Assurances.........................................11
SECTION 5.07 Guarantee..................................................12
ARTICLE VI CONDITIONS.......................................................12
SECTION 6.01 Conditions to the Obligations of the Purchaser
and the Seller.........................................12
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SECTION 6.02 Conditions to the Obligations of the Purchaser.............13
SECTION 6.03 Conditions to the Obligations of the Seller................14
ARTICLE VII TERMINATION PRIOR TO THE EFFECTIVE TIME.........................14
SECTION 7.01 Termination................................................14
SECTION 7.02 Effect on Obligations......................................15
SECTION 7.03 Right to Proceed...........................................15
ARTICLE VIII INDEMNIFICATION................................................15
SECTION 8.01 Survival...................................................15
SECTION 8.02 Indemnification for the Benefit of the Seller
and Xxxxxxxxx..........................................16
SECTION 8.03 Indemnification by the Seller..............................17
SECTION 8.04 Materiality................................................18
SECTION 8.05 Indemnification Procedures.................................18
ARTICLE IX MISCELLANEOUS....................................................19
SECTION 9.01 Entire Agreement..........................................19
SECTION 9.02 Successors and Assigns.....................................20
SECTION 9.03 Counterparts...............................................20
SECTION 9.04 Construction...............................................20
SECTION 9.05 Acknowledgement............................................20
SECTION 9.06 Modification and Waiver....................................20
SECTION 9.07 Severability...............................................21
SECTION 9.08 Specific Performance.......................................21
SECTION 9.09 Public Announcements.......................................21
SECTION 9.10 Expenses...................................................21
SECTION 9.11 Notices....................................................21
SECTION 9.12 Governing Law..............................................23
SECTION 9.13 Bulk Transfer Laws.........................................23
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ASSET PURCHASE AGREEMENT, dated as of April 1, 1998 among THE YANKEE
CANDLE COMPANY, INC., a Massachusetts corporation (the "Purchaser"), XXXXXXXX'X
TAVERN, INC., a Massachusetts corporation (the "Seller") and XXXXXXX XXXXXXXXX,
an individual resident in the state of Florida ("Xxxxxxxxx").
WHEREAS, the Seller is engaged in the business of conducting,
managing, operating and carrying on a bar and restaurant and owns the assets and
liabilities relating to the conduct of such business (the "Business"); and
WHEREAS, upon the terms and subject to the conditions set forth
herein, the Seller desires to sell to the Purchaser, and the Purchaser desires
to purchase from the Seller, the Business, including all of the assets used or
held for use in the conduct of the Business, other than the Excluded Assets (as
defined herein) and the Purchaser desires to assume from the Seller certain
liabilities and obligations of the Seller arising out of or relating to the
conduct of the Business.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Purchaser and the Seller
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Agreement" or "this Agreement" means this Asset Purchase Agreement,
dated as of April 1, 1998, among the Seller, the Purchaser and Xxxxxxxxx
(including the Disclosure Schedule) and all amendments hereto made in accordance
with the provisions of Section 9.06.
"Benefit Plan" means each plan, program, policy, payroll practice,
contract, agreement or other arrangement providing for compensation, retirement
benefits, severance, termination pay, performance awards, stock or stock-related
awards, fringe benefits or other employee benefits of any kind, whether formal
or informal, funded or unfunded, written or oral and whether or not legally
binding, including, without limitation, each "employee benefit plan" and each
"multi-employer plan" within the meaning of Section 3(3) and Section 3(37) or
4001(a)(3), respectively, of the Employee Retirement Income Security Act of
1974, as amended, and any regulations promulgated or proposed thereunder.
"Books and Records" means all the books of account and other
financial records pertaining to the Business.
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"Code" means the Internal Revenue Code of 1986, as amended, and the
applicable regulations thereunder.
"Company Employee Plan" means each Employee Plan (other than an
Employee Agreement) which is now or previously has been sponsored, maintained,
contributed to, or required to be contributed to, or with respect to which any
withdrawal liability (within the meaning of Section 4201 of ERISA) has been
incurred, by the Seller or any ERISA Affiliate for the benefit of any Employee,
and pursuant to which the Seller or any ERISA Affiliate has or may have any
liability, contingent or otherwise.
"Disclosure Schedule" means the Disclosure Schedule attached hereto,
dated as of the date hereof, and forming a part of this Agreement.
"Employee" means each current, former or retired employee, officer,
consultant, independent contractor, agent or director of the Business.
"Employee Agreement" means each management, employment, severance,
consulting, non-compete, confidentiality, or similar agreement or contract
between the Seller or any of its Affiliates and any Employee pursuant to which
the Seller has or may have any liability, contingent or otherwise.
"Environmental Claims" means any and all actions, suits, demands,
demand letters, claims, complaints, liens, notices of noncompliance or
violation, notices of liability or potential liability, investigations,
proceedings, consent orders or consent agreements relating in any way to any
Environmental Law, any Environmental Permit or any Hazardous Substances, or
arising from any actual or alleged injury or threat of injury to health, safety
or the environment.
"knowledge" means, with respect to the Seller, the knowledge of
Xxxxxxxxx, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxx X.
Xxxxxxxxx, Xxxx X. Xxxxx, Xxx Xxxxxxxxx, Xxxxxx Xxxxx, Esq., Xxxxx Xxxxxxxxxx
and Xxxxx Pittitieri.
"Leased Real Property" means the real property leased by the Seller
in connection with the conduct of the Business, as tenant, together with, to the
extent leased by the Business, all buildings and other structures, facilities or
improvements currently or hereafter located thereon, all fixtures, systems,
equipment and items of personal property of the Business attached or appurtenant
thereto, and all easements, licenses, rights and appurtenances relating to the
foregoing.
"Seller Material Adverse Effect" means any adverse effect or change
in the business, condition (financial or otherwise), assets, net assets,
Liabilities, properties, operations, results of operations or prospects of the
Seller or the Business that is material to the Seller or the Business.
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SECTION 1.02. Other Defined Terms. The following terms shall have the
meanings defined for such terms in the sections set forth below:
Term: Section:
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Acquired Assets 2.01
Ancillary Documents 2.10(b)
Assumed Liabilities 2.03
Business Recitals
Closing 2.10(a)
Closing Date 2.10(a)
Commitments 2.01(c)
Confidentiality Agreement 7.02
Excluded Assets 2.02
Excluded Liabilities 2.04
Indemnification Claim Notice 8.05(a)
Indemnified Party 8.05(a)
Indemnifying Party 8.05(a)
Xxxxxxxxx Preamble
Licenses 2.01(e)
Losses 8.02(a)
Notice 9.11
Permits 2.01(f)
Proprietary Rights 2.01(d)
Purchase Price 2.05
Purchaser Preamble
Purchaser Indemnified Party 8.03(a)
Requesting Party 5.09
Seller Preamble
Seller Indemnified Party 8.02(a)
Tangible Property 2.01(b)
SECTION 1.03. Incorporation by Reference. Any capitalized term used
herein, but not defined herein, shall have the meaning assigned such term in the
Recapitalization Agreement, dated as of March 25, 1998, by and among Forstmann
Little & Co. Subordinated Debt and Equity Management Buyout Partnership-VI,
L.P., the Purchaser, Yankee Candle Holdings Corp. and Xxxxxxxxx (the
"Recapitalization Agreement") provided, that all references in the
Recapitalization Agreement to the "Company" (as such term is defined in the
Recapitalization Agreement) shall be deemed to be references to the "Seller"(as
such term is defined herein) and all references to the "Seller" (as such term is
defined in the Recapitalization Agreement) shall be deleted.
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ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Sale and Purchase of the Acquired Assets. Upon the terms and
subject to the conditions set forth in this Agreement, at the Closing, the
Seller shall sell, transfer, assign, convey and deliver to the Purchaser, and
the Purchaser shall purchase and acquire from the Seller, all of the Seller's
right, title to and interest in and to the assets and properties used or held
for use in the conduct of the Business (the "Acquired Assets"), except as
provided in Section 2.02, including, without limitation:
(a) all Leased Real Property, including, without limitation, the
Leased Real Property listed in Section 2.01(a) of the Disclosure Schedule;
(b) all items of tangible personal property owned by the Seller and
used in connection with the Business, including, without limitation, buildings,
facilities, furniture, fixtures, leasehold and other improvements, equipment,
machinery, materials, supplies, motor vehicles, and inventory listed in Section
2.01(b) of the Disclosure Schedule, or acquired by the Seller after the date of
such Schedule and on or before the Closing Date without breach of this Agreement
(collectively, the "Tangible Property");
(c) all contracts, agreements, commitments, understandings, purchase
orders, sales orders, leases, documents and instruments to which the Seller is a
party and which relate to the Business, including, without limitation, those
listed in Section 2.01(c) of the Disclosure Schedule, or entered into by the
Seller after the date of such Schedule and on or before the Closing Date without
breach of this Agreement (collectively, the "Commitments");
(d) all trademarks, trademark rights, trade names, trade name
rights, patents, patent rights, inventions, copyrights, service marks, all
registrations and applications pending therefor, trade secrets, know-how,
designs, marketing materials, slogans, processes and operating rights, in each
case, owned or possessed by the Seller and used in connection with the Business,
including, without limitation, those listed in Section 2.01(d) of the Disclosure
Schedule, or acquired by the Seller or coming into existence after the date of
such Schedule and on or before the Closing Date without breach of this Agreement
(collectively, the "Proprietary Rights");
(e) all licenses granted by or to the Seller in connection with
the Business and all other agreements to which the Seller is a party which
relate to any items described in Section 2.01(d), including, without
limitation, those listed in Section 2.01(e) of the Disclosure Schedule, or
granted by or to or entered into by the Seller after the date of such
Schedule and on or before the Closing Date without breach of this Agreement
(collectively, the "Licenses");
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(f) all approvals, authorizations, consents, certificates, licenses,
permits, franchises, tariffs, orders and other registrations of any Governmental
Entity held by the Seller in connection with the Business and required by any
Law or Governmental Entity, for the conduct of the Business, including, without
limitation, those listed in Section 2.01(f) of the Disclosure Schedule, or
granted to or obtained by the Seller after the date of such Schedule and on or
before the Closing Date (collectively, the "Permits");
(g) all warranties to the Seller from the Seller's vendors and
suppliers with respect to goods or services supplied to the Seller in connection
with the Business, including, without limitation, those listed in Section
2.01(g) of the Disclosure Schedule;
(h) all causes of action and other similar rights of the Seller
relating to the Business, including, without limitation, those listed in Section
2.01(h) of the Disclosure Schedule, and all such items arising or acquired after
the date of such Schedule and on or before the Closing Date;
(i) all cash, cash deposits and other cash equivalents, accounts
receivable, prepaid expenses and similar items of the Seller;
(j) all operating data and records necessary to the operation of the
Business, including, without limitation, financial, Tax, accounting and credit
records, correspondence, budgets and other similar documents and records;
(k) all goodwill and going concern value of the Business; and
(l) all other physical and tangible assets now owned directly by the
Seller in connection with the Business or acquired after the date hereof and on
or before the Closing Date without breach of this Agreement.
SECTION 2.02. Excluded Assets.
Notwithstanding anything herein to the contrary, from and after the
Closing, the Seller shall retain all of its right, title and interest in and to
the following assets (the "Excluded Assets"):
(a) any assets described in Section 2.01 that are transferred or
otherwise disposed of by the Seller prior to the Closing in the ordinary course
of business without breach of this Agreement;
(b) the Seller's corporate seal, minute books, charter documents and
corporate stock record books and the Returns and Tax records that the Seller is
required by law to retain; and
(c) all consideration received by, and all rights of, the Seller
pursuant to this Agreement.
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SECTION 2.03. Assumption of Liabilities. As of the Closing, the Purchaser
shall assume and thereafter pay, perform or discharge the liabilities and
obligations of the Seller relating to the Business which are set forth on
Section 2.03 of the Disclosure Schedule, as they shall exist immediately prior
to the Closing, but only those and no others (collectively, the "Assumed
Liabilities").
SECTION 2.04. Excluded Liabilities. Notwithstanding anything herein to the
contrary, except for the Assumed Liabilities expressly assumed by the Purchaser
under Section 2.03 hereof, the Purchaser shall not and does not assume, agree to
pay, perform or discharge any liability or obligation of the Seller or the
Business, regardless of whether such liability or obligation is fixed or
contingent, asserted or unasserted, and whether arising prior to, on or after
the Closing Date (collectively, the "Excluded Liabilities"). Without limiting
the generality of the foregoing, the Excluded Liabilities shall, except as
otherwise expressly provided in Section 2.03, include:
(i) any and all liabilities related to any of the Excluded
Assets;
(ii) any indebtedness for borrowed money or any other
indebtedness evidenced by notes or other instruments, including principal,
interests and fees;
(iii) any indebtedness to any current or former stockholder or
other Affiliate of the Seller;
(iv) any liability, claim or obligation of the Seller in
respect of any Taxes, or any reporting requirement or estimated Tax
payable with respect thereto, whether arising out of or relating to
events, state of facts or transactions occurring or existing on, prior
to, or after the Closing Date, including, without limitation, any Taxes
relating to the Business or any of the Acquired Assets with respect to
taxable periods or portions thereof ending on or prior to the Closing
Date, any Taxes relating to the transactions contemplated hereby, and
any Taxes relating to the transfer or disposition of Excluded Assets;
(v) any liabilities or obligations arising from any breach, or
from any fact or transaction involving a breach, of any covenant,
agreement, representation or warranty of the Seller contained herein or
arising from, out of, or in connection with, the transactions contemplated
hereby;
(vi) any liabilities in respect of which the Seller shall be
in default on the Closing Date;
(vii) all employee benefit, compensation, pension, welfare,
severance and other employee-related liabilities and obligations
associated with any Employee, including without limitation, any liability
or obligation under any
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Benefit Plan or Employee Agreement, whether arising out of or
relating to any event or state of facts occurring or existing before,
on or after the Closing Date;
(viii) any liabilities or obligations arising from any
litigation, investigation or other proceeding pending or threatened in
respect of the Seller, the Business or any of the Acquired Assets on or
prior to the Closing Date or subsequently asserted after the Closing Date
which is attributable to facts existing, or events or omissions occurring,
on or prior to the Closing Date, including, without limitation, any
Environmental Claim;
(ix) any liabilities or obligations of the Seller with respect
to any lessor, lessee, supplier, customer, lender or other third-party
arising by reason of a claim that the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby
constitutes a breach, termination or impairment of, or gives a right to
payment under, any contract, arrangement or understanding;
(x) any liabilities or obligations incurred by the Seller on
or after the Closing Date; and
(xi) any liabilities or obligations incurred by the Business
prior to the Closing outside the ordinary course of business and all
debts, liabilities or obligations whatsoever, that do not arise out of or
relate to the Business or the Acquired Assets, including all costs and
expenses incurred by the Seller in connection with this Agreement, and the
transactions contemplated hereby and thereby.
SECTION 2.05. Purchase Price. As consideration for the sale by the Seller
of the Acquired Assets hereunder, the purchase price to be paid to the Seller
for the Acquired Assets (the "Purchase Price") shall be:
(i) the assumption by the Purchaser of the Assumed Liabilities, and
(ii) the payment to the Seller at the Closing of an amount in cash
equal to $1.00 (the "Purchase Price").
SECTION 2.06. Allocation of Purchase Price. The Purchase Price shall be
allocated among the Acquired Assets and other relevant items as reasonably
determined by the Purchaser by notice to the Seller within 180 days following
the Closing. The Seller and the Purchaser each agree to report the sale and
purchase of the Acquired Assets for all federal, state, local and foreign Tax
purposes in a manner consistent with such allocation and agree to take no
position inconsistent with such allocation. Upon any payment of any
indemnification obligations hereunder resulting in an adjustment of the
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Purchase Price, the purchase price allocation shall be adjusted by the
Purchaser appropriately by notice to the Seller within 90 days after such
payment.
SECTION 2.07. Assignment of Commitments, Rights and Obligations.
Anything in this Agreement to the contrary notwithstanding, this Agreement
shall not constitute an agreement to assign any Commitment if an attempted
assignment thereof, without the consent of a third party thereto, would in
any way materially and adversely affect the rights of the Purchaser
thereunder or the right of the Purchaser to conduct all or any part of the
Business in the manner and on the terms presently enjoyed by the Seller. If
any such third party consent is sought but not obtained, the Seller shall, at
its expense, cooperate with the Purchaser in any reasonable arrangement
designed (a) to provide the Purchaser the benefits under any such Commitment,
including, without limitation, (i) compliance by the Seller on the
Purchaser's behalf and at the Seller's expense with any such Commitment and
(ii) enforcement for the benefit of the Purchaser of any and all rights of
the Seller against a third party thereto arising out of the breach or
cancellation by such third party or otherwise, or (b) to enable the Seller to
meet its obligations, if any, under any such Commitment, or to limit, to the
greatest extent reasonably possible, any liability of the Seller arising from
its failure to perform any such Contract. The Purchaser shall not be required
to accept or enter into, as a substitute for performance by the Seller under
this Agreement, any arrangement which would impose any additional cost,
expense or liability on the Purchaser or would deprive the Purchaser of any
benefits or profits contemplated by this Agreement.
SECTION 2.08. Payment of Taxes and Fees. All transfer, transfer gains,
sales, use, stamp, registration, documentary or other similar Taxes (and any
costs and expenses related to such Taxes) payable in connection with the
transactions contemplated hereby shall be borne 50% by the Seller and 50% by the
Purchaser. The Seller, at its own expense, will prepare and file any Returns and
other filings relating thereto. The Seller shall pay when due any and all other
Taxes which become payable, and all fees and charges incurred by it, in
connection with the transactions contemplated hereby. The Purchaser will
cooperate with the Seller in the preparation of such Returns and filings.
SECTION 2.09. Notices of Sale. The Seller (as reasonably requested by the
Purchaser) will, from time to time, prepare and mail notices to the other party
under each of the Commitments sold, transferred, assigned, delivered and
conveyed to the Purchaser pursuant to this Agreement advising such other party
that such Commitments have been assigned to the Purchaser and directing such
other party to send to the Purchaser all future payments on account, notices and
correspondence relating to the foregoing.
SECTION 2.10. The Closing.
(a) The Closing of the transactions contemplated hereby (the
"Closing") shall take place at the offices of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, Xxx Xxx Xxxx
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Xxxxx, Xxx Xxxx, X.X. 00000, commencing at 10:00 a.m. (New York time) on the
later of the first Business Day after the (i) day in which the last of the
conditions set forth in Article VI are satisfied or waived, or (ii) closing
of the transactions contemplated by the Recapitalization Agreement, or at
such other place, date and time as the parties may agree in writing (the date
of the Closing shall be the "Closing Date").
(b) At the Closing, the Seller shall execute and deliver, or
cause to be delivered, to the Purchaser such deeds, bills of sale,
endorsements, assignments, licenses and other instruments, certificates and
documents reasonably satisfactory in form and substance to the Purchaser and
its counsel (the "Ancillary Documents") as shall be reasonably necessary to
vest in the Purchaser as of the Closing Date good and marketable title to the
Acquired Assets free and clear of any Encumbrances (including, without
limitation, the Xxxx of Sale and Instrument of Assignment and Assumption in
the form attached hereto as Exhibit A). Simultaneously with such delivery,
the Seller shall take all additional steps as may reasonably be necessary to
put the Purchaser in possession and operating control of the Acquired Assets.
(c) At the Closing, the Purchaser shall (i) execute and deliver to
the Seller the Xxxx of Sale and Instrument of Assignment and Assumption and (ii)
pay to the Seller the Purchase Price.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE SELLER
SECTION 3.01. Incorporation by Reference. Except as otherwise provided on
Schedule 3.01 hereto, the Seller represents and warrants, as to itself and,
where applicable, Xxxxxxxxx, as to each matter set forth in Article III of the
Recapitalization Agreement, which Article is incorporated fully herein by this
reference as though restated herein in full, provided that (i) the Seller makes
no representation or warranty as to Sections 3.01, 3.03, 3.04 or 3.24 of the
Recapitalization Agreement as incorporated herein, (ii) all references in the
Recapitalization Agreement to the "Company" (as such term is defined in the
Recapitalization Agreement) in such representations and warranties as
incorporated herein shall be deemed to be references to the "Seller" (as such
term is defined herein), and all references to the "Seller" (as such term is
defined in the Recapitalization Agreement) in such representations and warrants
as incorporated herein shall be deleted and (iii) to the extent a term is
defined in this Agreement and in the Recapitalization Agreement, the definition
of such term as set forth in this Agreement shall govern.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
SECTION 4.01. Incorporation by Reference. The Purchaser represents and
warrants to the Seller as to each matter set forth in Article IV of the
Recapitalization Agreement, which Article is incorporated fully herein by
this reference as though restated herein in full, provided that (i) the
Purchaser makes no representation or warranty as to Section 4.04, (ii) the
reference to the "State of Delaware" in Section 4.01 shall be deemed to be a
reference to the "Commonwealth of Massachusetts" and (iii) to the extent a
term is defined in this Agreement and in the Recapitalization Agreement, the
definition of such term as set forth in this Agreement shall govern.
ARTICLE V
COVENANTS
SECTION 5.01 Access and Information. From the date hereof until the
Closing, the Seller shall, and shall cause its officers, directors, employees
and agents to, afford to the Purchaser and its officers, directors, employees,
counsel, accountants, advisors, representatives and agents access to the
officers, employees, agents, customers, suppliers, properties, offices and other
facilities, and to the Seller's Books and Records (including, without
limitation, Returns and work papers of its independent auditors) and
Commitments, and shall furnish the Purchaser and such others all financial,
operating, technical and other data and information which the Purchaser, through
its officers, employees, representatives or agents, may from time to time
reasonably request.
SECTION 5.02 Notices and Consents
(a) Each of the parties hereto shall use all reasonable efforts
to cause the transactions contemplated by this Agreement and the Ancillary
Documents to be consummated, including, without limitation, cooperating with
each other and using all reasonable efforts promptly to prepare and file all
necessary documentation, to effect all applications, notices, petitions and
filings, and to obtain as promptly as practicable all permits, consents,
approvals, waivers, registrations, memberships and authorizations of all
third parties and Governmental Entities which are necessary or advisable to
consummate the transactions contemplated hereby and thereby.
(b) The parties hereto agree that they will consult with one
another with respect to the obtaining of all permits, consents, approvals and
authorizations of all Governmental Entities and other third parties necessary
or advisable to consummate the transactions contemplated by this Agreement
and the Ancillary Documents, and each party will keep the other apprised of
the status of matters relating to completion of the transactions contemplated
herein and therein. The party responsible for a filing shall
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promptly deliver to the other party hereto evidence of the filing of all
applications, filings, registrations, memberships and notifications relating
thereto (except for any confidential portions thereof), and any supplement,
amendment or item of additional information in connection therewith (except
for any confidential portions thereof). The party responsible for a filing
shall also promptly deliver to the other party hereto a copy of each notice,
order, opinion and other item of correspondence received by the filing party
in respect of any such filing (except for any confidential portions thereof).
(c) The parties hereto shall promptly advise each other upon
receiving any communication from any Governmental Entities or other third party
whose consent or approval is required for consummation of the transactions
contemplated hereby which causes such party to believe that there is a
reasonable likelihood that any such consent or approval will not be obtained or
that the receipt of such consent or approval will be materially delayed or that
the transaction contemplated hereby will become subject to additional conditions
imposed by such Governmental Entities or other third party.
SECTION 5.03 Best Efforts. Subject to the terms and conditions in this
Agreement, each of the parties hereto shall use its reasonable best efforts to
take promptly, or cause to be taken, all actions and to do promptly, or cause to
be done, all things necessary, proper or advisable under applicable Laws to
consummate and make effective the transactions contemplated hereby.
SECTION 5.04 Notice. Each party shall give prompt written notice to the
other of (a) the occurrence, or failure to occur, of any event which occurrence
or failure would be likely to cause any representation or warranty of the Seller
or the Purchaser, as the case may be, contained in this Agreement to be untrue
or inaccurate in any material respect at any time from the date hereof to the
Closing or that will or may result in the failure to satisfy any of the
conditions specified in Article VI, and (b) any failure of any party hereto to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it hereunder.
SECTION 5.05 Tax Provisions. The Seller covenants and agrees to timely pay
all Income Taxes due with respect to the sale of the Business and Acquired
Assets contemplated by this Agreement, and to promptly provide Purchaser with
evidence of such payment of such Income Taxes and payment of any other Taxes
payable in connection with the transactions contemplated hereby.
SECTION 5.06 Further Assurances. After the Closing, each of the parties
hereto will, at the request of any other party hereto (a "Requesting Party"),
execute, acknowledge and deliver to such Requesting Party, at the sole
expense of such Requesting Party, all such further assignments, conveyances,
endorsements, deeds, powers of attorney, consents and other documents and
take such other action as a
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Requesting Party may reasonably request to consummate the transactions
contemplated hereby.
SECTION 5.07 Guarantee. Xxxxxxxxx hereby unconditionally and irrevocably
guarantees to the Purchaser the prompt and complete payment (and performance, in
the case of non-pecuniary obligations) of all the Obligations (as defined below)
in full, when and as the same shall become due (including amounts and
performance that would become due but for the operation of the automatic stay
under Section 362(a) of the United States Bankruptcy Code, Xxxxx 00, Xxxxxx
Xxxxxx Code, as amended). "Obligations" means all agreements, Commitments,
obligations and Liabilities of the Seller under this Agreement (including,
without limitation, Section 8.03 hereof) and the Ancillary Documents. Xxxxxxxxx
further agrees to pay any and all expenses (including fees and disbursements of
counsel) which may be paid or incurred by any Person in collecting any or all of
the Obligations or enforcing this guarantee in respect of such Obligations. This
guarantee constitutes a guarantee of payment when due and not of collection, and
Xxxxxxxxx specifically agrees that it shall not be necessary or required that
any Person exercise any right, asset any claim or demand or enforce any remedy
whatsoever against the Seller (or any other Person) before or as a condition to
the obligations of Xxxxxxxxx hereunder. The parties hereto acknowledge and agree
that (x) Xxxxxxxxx will receive substantial and valuable benefits under this
Agreement in consideration of the covenants and agreements of Xxxxxxxxx set
forth in this Section 5.07, (y) the Purchaser would not have executed and
delivered this Agreement, or agreed to consummate the transactions contemplated
hereby upon the terms and conditions set forth in this Agreement, if Xxxxxxxxx
had not entered into the covenants and agreements set forth in this Section 5.07
and (z) the parties intend that such agreements and covenants be enforceable and
that it would be grossly inequitable if a court or judicial tribunal were to not
enforce such covenants and agreements to the fullest extent provided herein.
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to the Obligations of the Purchaser and the
Seller. The obligations of the Purchaser and the Seller to consummate the
transactions contemplated hereby shall be subject to the satisfaction (or waiver
by each of the Purchaser and the Seller) at or prior to the Closing of each of
the following conditions:
(a) No Law of any Governmental Entity shall be in effect which
prohibits any party from consummating the transactions contemplated hereby.
12
(b) The consummation of the transactions contemplated under the
Recapitalization Agreement shall have occurred.
SECTION 6.02 Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser to consummate the transactions contemplated hereby
shall be subject to the satisfaction (or waiver by the Purchaser) at or prior to
the Closing of each of the following conditions:
(a) (i) The representations and warranties of the Seller
contained in this Agreement shall be true and correct in all material respects
as of the Closing, with the same force and effect as if made as of the Closing
(or, in the case of representations and warranties of the Seller which address
matters only as of a particular date, as of such date), disregarding all
references in such representations and warranties to "materially", "material
adverse change", "Seller Material Adverse Effect", "in all material respects" or
similar expressions; (ii) the covenants and agreements contained in this
Agreement to be complied with by Xxxxxxxxx or the Seller at or prior to the
Closing shall have been complied with in all material respects; and (iii) the
Purchaser shall have received a certificate of the Seller as to the matters set
forth in clauses (i) and (ii) above signed by the Seller.
(b) All consents, approvals, orders or clearances of any
Governmental Entity or any other Person, the granting of which is required for
the consummation of the transactions contemplated hereby, including those listed
in Schedule 6.02, shall have been obtained in form and substance reasonably
satisfactory to the Purchaser.
(c) (i) No Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, injunction or
other Order which is in effect and (x) has the effect of making the transactions
contemplated by this Agreement illegal or otherwise restraining or prohibiting
consummation of such transactions or (y) would materially restrict or interfere
with the operation of the Business after the Closing or would have a Seller
Material Adverse Effect, and (ii) there shall be no Litigation pending that is
reasonably expected to be successful before any Governmental Entity of competent
jurisdiction seeking a remedy that would have the effect of the foregoing.
(d) The Purchaser shall be satisfied, in its reasonable
discretion, with the results of its legal and business due diligence
investigation of the Seller and the Business.
13
SECTION 6.03 Conditions to the Obligations of the Seller. The obligations
of the Seller to consummate transactions contemplated hereby shall be subject to
the satisfaction (or waiver by the Seller) at or prior to the Closing of the
following conditions:
(a) (i) The representations and warranties of the Purchaser
contained in this Agreement shall be true and correct in all material respects
as of the Closing, with the same force and effect as if made as of the Closing
(or, in the case of representations and warranties of the Purchaser which
address matters only as of a particular date, as of such date), disregarding all
references in such representations and warranties to "materially", "material
adverse change", "in all material respects" or similar expressions; (ii) the
covenants and agreements contained in this Agreement to be complied with by the
Purchaser at or prior to the Closing shall have been complied with in all
material respects; and (iii) the Seller shall have received a certificate of the
Purchaser as to the matters set forth in clauses (i) and (ii) above signed by a
duly authorized officer of the Purchaser.
(b) No Governmental Entity shall have enacted, issued, promulgated,
enforced or entered any Order which is in effect and has the effect of making
the transactions contemplated by this Agreement illegal or otherwise restraining
or prohibiting consummation of such transactions.
ARTICLE VII
TERMINATION PRIOR TO THE EFFECTIVE TIME
SECTION 7.01 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing Date:
(a) by mutual written consent of the Purchaser and the Seller; or
(b) by either the Seller or the Purchaser by giving written notice
to the other party, if any Governmental Entity with jurisdiction over such
matters shall have issued an Order restraining, enjoining or otherwise
prohibiting any of the transactions contemplated by this Agreement and such
order, decree, ruling or other action shall have become final and unappealable;
provided, however, that the provisions of this Section 7.01(b) shall not be
available to a party unless such party shall have complied with its obligations
under Section 5.02; or
(c) by either the Purchaser or the Seller by giving written
notice to the other party if the Recapitalization Agreement shall be
terminated pursuant to Article VII hereof; or
14
(d) by written notice given by the Seller or the Purchaser to the
other party, if there shall have been a breach by the Purchaser or the Seller,
as the case may be, of its representations, warranties, covenants or agreements
contained herein and such breach would, if not cured, cause the conditions
contained in Section 6.02 or 6.03, as applicable, not to be satisfied and such
breach has not been cured to the reasonable satisfaction of the other party
within 15 Business Days after receiving written notice thereof.
SECTION 7.02 Effect on Obligations. Termination of this Agreement pursuant
to this Article VII shall terminate all obligations of the parties hereunder,
except for the obligations under Sections 5.07, 9.10 and 9.11 hereof and under
that certain Confidentiality Agreement, dated as of January 14, 1998, by and
between Forstmann Little & Co. and Geneva Corporate Finance, Inc. (the
"Confidentiality Agreement"); provided, however, that nothing herein shall
relieve the defaulting or breaching party from any Liability to any other party
hereto.
SECTION 7.03 Right to Proceed. Anything in this Agreement to the contrary
notwithstanding, if the condition specified in Section 6.02(a)(i) has not been
satisfied at the Closing, the Purchaser shall have the right to proceed with the
transactions contemplated hereby; if the condition specified in Section
6.03(a)(i) hereof has not been satisfied at the Closing, the Seller shall have
the right to proceed with the transactions contemplated hereby; and if any such
right to proceed is exercised with actual knowledge, acquired after the date
hereof, of the unsatisfied condition, the party exercising such right shall be
deemed to have waived such unsatisfied condition and any such representation or
warranty the failure of which to be true and correct as contemplated by Section
6.02(a)(i) or 6.03(a)(i), as applicable, has been so waived shall be deemed
amended to reflect those facts of which the Purchaser or the Seller, as
applicable, has actual knowledge, which facts shall be set forth with
specificity in a writing to be executed by the waiving party.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 Survival. The representations and warranties of the
parties hereto contained herein or in any Ancillary Document shall expire on
the last day of the eighteenth month following the Closing Date, except that
the representations and warranties set forth in Sections 3.20, 3.22 and 3.25
of this Agreement shall survive the Closing Date until the expiration of the
applicable statute of limitations (including any extensions thereof). After
the expiration of such periods, any claim by a party hereto based upon any
such representation or warranty shall be of no further force and effect,
except to the extent a party has asserted a claim in accordance with this
Article VIII for breach of any such representation or warranty prior to the
expiration of such period, in
15
which event any representation or warranty to which such claim relates shall
survive with respect to such claim until such claim is resolved as provided
in this Article VIII. The covenants and agreements of the parties hereto
shall survive the Closing until performed in accordance with their terms,
provided that the Seller's indemnification obligations set forth in Section
8.03(a)(v) shall survive until the fifth anniversary of the Closing Date,
except to the extent a Purchaser Indemnified Party has asserted a claim in
accordance with this Article VIII pursuant to Section 8.03(a)(v) prior to the
fifth anniversary of the Closing Date, in which event the Seller's
indemnification obligations with respect to such claim shall survive until
such claim is resolved as provided in this Article VIII.
SECTION 8.02 Indemnification for the Benefit of the Seller and Xxxxxxxxx.
(a) The Purchaser agrees to indemnify, from and after the Closing
Date, the Seller and Xxxxxxxxx (each a "Seller Indemnified Party") against and
hold it or him harmless from and against all Liabilities, losses, damages,
claims, costs, interest, judgments, fines, amounts paid in settlement and
expenses (including reasonable attorney's fees) (collectively, "Losses")
incurred by it or him based upon, resulting from or arising out of (i) the
breach of any representation or warranty of the Purchaser contained in this
Agreement or any of the Ancillary Documents or (ii) the breach of any covenant
or agreement of the Purchaser contained in this Agreement or any of the
Ancillary Documents. Anything in Section 8.02 to the contrary notwithstanding,
no claim may be asserted nor may any action be commenced against the Purchaser,
unless prompt written notice of such claim or action is received by the
Purchaser describing in reasonable detail the facts and circumstances with
respect to the subject matter of such claim or action, provided that the failure
of the Seller to give the Purchaser prompt notice as provided herein shall not
relieve the Purchaser of any of its obligations hereunder except to the extent
that the Purchaser is prejudiced thereby.
(b) No claim may be made against the Purchaser for
indemnification pursuant to Section 8.02(a)(i), unless the aggregate
liability of the Purchaser, when aggregated with the aggregate liability of
the Purchaser pursuant to Section 8.02(a)(i) of the Recapitalization
Agreement, exceeds $5,000,000, and the Purchaser shall then only be liable
for Losses under this Agreement in excess of such $5,000,000 amount. The
maximum amount recoverable, in the aggregate under Section 8.02(a)(i) hereof
and Section 8.02(a)(i) of the Recapitalization Agreement for breaches of
representations and warranties shall be $50,000,000.
(c) The Seller and Xxxxxxxxx each acknowledge and agree that, except
to the extent any Losses are incurred by such party resulting from any
fraudulent misrepresentation by the Purchaser, the Seller's and Xxxxxxxxx'x sole
and exclusive remedy with respect to any and all claims based upon, resulting
from or arising out of the breach of any representation or warranty of the
Purchaser contained in this Agreement or any
16
Ancillary Document shall be pursuant to the indemnification provisions of
this Article VIII.
SECTION 8.03 Indemnification by the Seller.
(a) The Seller agrees to indemnify, defend and hold harmless the
Purchaser and each of its Affiliates, officers, directors, employees,
members, agents, successors, transferees and assigns (each of the foregoing a
"Purchaser Indemnified Party") from and against all Losses incurred by any of
them based upon, resulting from or arising out of (i) the breach of any
representation or warranty of the Seller contained in this Agreement or any
of the Ancillary Documents, (ii) the breach of any covenant or agreement of
the Seller contained in this Agreement or any of the Ancillary Documents,
(iii) the failure of the Seller to pay, perform or discharge, when due, any
of the Excluded Liabilities, (iv) any of the Excluded Assets, (v)
Environmental Costs in excess of $250,000, whenever incurred, based upon,
arising from or related to any conditions, events, circumstances, facts,
activities, practices, incidents, actions or omissions occurring or existing
on or prior to the Closing Date (x) at, on, under, about, within or migrating
from or onto any property currently or formerly owned, leased or operated by
the Seller or any of its predecessors, or (y) otherwise related to the
Seller, or any other related entity of the Seller or any of its subsidiaries,
or any divested entity, business, facility or property of the Seller or any
of their predecessors or related entities, in each case regardless of whether
such Environmental Costs are known, unknown, disclosed, undisclosed, fixed or
contingent, and in each case including, without limitation, any such
Environmental Costs arising from the use, storage, handling, treatment,
processing, disposal, generation, transportation or release of any Hazardous
Substances at any on-site or off-site location on or prior to the Closing
Date. Anything in Section 8.03 to the contrary notwithstanding, no claim may
be asserted nor may any action be commenced against the Seller for breach of
any representation or warranty contained in this Agreement or any of the
Ancillary Documents, unless prompt written notice of such claim or action is
received by the Seller describing in reasonable detail the facts and
circumstances with respect to the subject matter of such claim or action;
provided that the failure of the Purchaser to give the Seller prompt notice
as provided herein shall not relieve the Seller of its obligations hereunder,
except to the extent that the Seller is prejudiced thereby.
(b) No claim may be made against the Seller for indemnification
pursuant to Section 8.03(a)(i), unless the aggregate liability of the Seller,
when aggregated with the aggregate liability of the "Seller" (as defined
therein) pursuant to Section 8.03(a)(i) of the Recapitalization Agreement,
exceeds $5,000,000, and the Seller shall then only be liable for Losses in
excess of $5,000,000. The maximum amount recoverable, in the aggregate under
Section 8.03(a)(i) hereof and Section 8.03(a)(i) of the Recapitalization
Agreement for breaches of representations and warranties shall be $50,000,000
17
(c) The Purchaser acknowledges and agrees that, except to the
extent any Losses are incurred by such party resulting from any fraudulent
misrepresentation by the Seller or Xxxxxxxxx, the Purchaser's sole and
exclusive remedy with respect to any and all claims based upon, resulting
from or arising out of the breach of any representation or warranty of the
Seller contained in this Agreement or any Ancillary Document shall be
pursuant to the indemnification provisions of this Article VIII.
SECTION 8.04 Materiality. The Seller Material Adverse Effect and
materiality (or correlative meaning) qualifications included in the
representations, warranties and covenants shall have no effect on any provisions
in this Article VIII concerning the indemnities of the Seller with respect to
such representations, warranties and covenants, each of which is given as though
there were no Seller Material Adverse Effect or materiality qualification for
purposes of such indemnities.
SECTION 8.05 Indemnification Procedures.
(a) A Purchaser Indemnified Party or Seller Indemnified Party, as
the case may be (for purposes of this Section 8.05, an "Indemnified Party"),
shall give the indemnifying party under Section 8.02 or 8.03, as applicable
(for purposes of this Section 8.05, an "Indemnifying Party"), prompt written
notice (the "Indemnification Claim Notice") of any claim, assertion, event or
proceeding by or in respect of a third party of which such Indemnified Party
has knowledge concerning any Loss as to which such Indemnified Party may
request indemnification hereunder; provided that failure of the Indemnified
Party to give the Indemnifying Party prompt notice as provided herein shall
not relieve the Indemnifying Party of any of its obligations hereunder except
to the extent that the Indemnifying Party is prejudiced thereby. The
Indemnifying Party shall have the right to direct, through counsel of its own
choosing, which counsel shall be reasonably satisfactory to the Indemnified
Party, the defense or settlement of any claim or proceeding the subject of
indemnification hereunder at its own expense. If the Indemnifying Party
elects to assume the defense of any such claim or proceeding, the Indemnified
Party may participate in such defense, but in such case the expenses of the
Indemnified Party shall be paid by the Indemnified Party. The Indemnified
Party shall, upon reasonable notice, provide the Indemnifying Party with
access to its records and personnel relating to any such claim, assertion,
event or proceeding during normal business hours and shall otherwise
cooperate with the Indemnifying Party in the defense or settlement thereof,
and the Indemnifying Party shall reimburse the Indemnified Party for all its
reasonable out-of-pocket expenses in connection therewith. If the
Indemnifying Party elects to direct the defense of any such claim or
proceeding, the Indemnified Party shall not pay, or permit to be paid, any
part of any claim or demand arising from such asserted liability unless the
Indemnifying Party consents in writing (which consent shall not be
unreasonably withheld) to such payment or unless the Indemnifying Party
withdraws from or fails to maintain the defense of such asserted liability or
unless a final judgment from which no appeal may be taken by or on behalf of
the Indemnifying Party
18
is entered against the Indemnified Party for such liability. No settlement in
respect of any third party claim may be effected by the Indemnifying Party
without the Indemnified Party's prior written consent (which consent shall
not be unreasonably withheld) unless the settlement involves a full and
unconditional release of the Indemnified Party. If the Indemnifying Party
shall fail to undertake or maintain any such defense within 30 days of
receipt of the Indemnification Claim Notice, the Indemnified Party shall have
the right to undertake the defense or settlement thereof, at the Indemnifying
Party's expense. If the Indemnified Party assumes the defense of any such
claim or proceeding pursuant to this Section 8.05 it may conduct such defense
as it reasonably deems appropriate (without regard to the availability of
indemnification hereunder), and the Indemnifying Party shall be responsible
for and pay all costs and expenses of such defense, including its compromise
or settlement, if the Indemnifying Party consents thereto (which consent
shall not be unreasonably withheld).
(b) Notwithstanding the foregoing, with respect to any claim or
demand that the Indemnifying Party is defending, the Indemnified Party shall
have the right to retain separate counsel to represent it and the Indemnifying
Party shall pay the fees and expenses of such separate counsel if there are
conflicts that make it reasonably necessary for separate counsel to represent
the Indemnified Party and the Indemnifying Party.
(c) The parties agree to treat any indemnification payments made by
the Seller pursuant to Section 8.03 for all Tax purposes as adjustments to the
Purchase Price.
(d) The amounts for which an Indemnifying Party shall be liable
under Sections 8.02 and 8.03 of this Agreement shall be net of any insurance
proceeds received by the Indemnified Party in connection with the
circumstances giving rise to the right of indemnification.
(e) The obligation of the Indemnifying Party pursuant to Section
8.02(a)(i) or 8.03(a)(i) shall be limited to actual damages and shall not
include lost profits or consequential damages whether arising in contract, tort
(including negligence and strict liability), warranty, statute or otherwise;
provided that any lost profits or consequential damages recovered by a third
party (including any governmental or quasi-Governmental Entities) against a
party entitled to indemnity pursuant to this Article VIII shall be included in
the damages recoverable under such indemnity.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Entire Agreement. This Agreement, the Ancillary Documents and
the Confidentiality Agreement constitute the sole understanding of the parties
with
19
respect to the subject matter hereof and thereof and supersede all prior
agreements among the parties with respect to the subject matter hereof and
thereof.
SECTION 9.02 Successors and Assigns. Except as otherwise expressly
provided herein, the terms and provisions of this Agreement shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto; provided, however, that no party hereto
will assign its rights or delegate its obligations under this Agreement without
the express prior written consent of each other party hereto, except that all or
any of the rights of the Purchaser may be assigned to any corporation
newly-formed and wholly owned by the Purchaser for the purpose of effecting the
transactions contemplated hereby, provided that no such assignment shall relieve
the Purchaser of any of its liabilities hereunder. Nothing in this Agreement,
express or implied, is intended to, or shall, confer on any Person, other than
any of the parties hereto, any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement.
SECTION 9.03 Counterparts. This Agreement may be executed in counterparts,
each of which shall for all purposes be deemed to be an original and all of
which shall constitute the same instrument.
SECTION 9.04 Construction. The headings of the Articles, Sections and
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
hereof. All section and article references are to this Agreement, unless
otherwise expressly provided. As used in this Agreement, (a) "hereof",
"hereunder", "herein" and words of like import shall be deemed to refer to this
Agreement in its entirety and not just a particular section of this Agreement,
and (b) unless the context otherwise requires, words in the singular number or
in the plural number shall each include the singular number or the plural
number, words of the masculine gender shall include the feminine and neuter,
and, when the sense so indicates, words of the neuter gender shall refer to any
gender.
SECTION 9.05 Acknowledgement. Each of Xxxxxxxxx and the Seller
acknowledges that the representations and warranties contained in this
Agreement, any Ancillary Document and in any certificate or other document
delivered to the Purchaser shall not be deemed waived or otherwise affected by
any investigation by the Purchaser, or their respective officers, directors,
employees, counsel, accountants, advisors, representatives and agents.
SECTION 9.06 Modification and Waiver. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed by the Seller, Xxxxxxxxx and the
Purchaser. Any of the terms or provisions of this Agreement may be waived in
writing at any time by the party which is entitled to the benefits of such
waived terms or provisions. No waiver of
20
any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof (whether or not similar).
No delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof.
SECTION 9.07 Severability. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
SECTION 9.08 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
SECTION 9.09 Public Announcements. Prior to the Closing, none of the
Purchaser, Xxxxxxxxx or the Seller shall make any press release with respect to
this Agreement or the transactions contemplated hereby, except as may be
required by Law (in which case, the nature of the statement shall be described
to each other party prior to dissemination to the public) or as otherwise agreed
to by the Seller and the Purchaser.
SECTION 9.10 Expenses. Each of the parties hereto shall pay all costs and
expenses incurred by it in connection with this Agreement and the transactions
contemplated hereby, in each case including, without limiting the generality of
the foregoing, fees and expenses of such Person's own financial consultants,
advisors, brokers, accountants and counsel.
SECTION 9.11 Notices. Any notice, request, instruction or other document
to be given hereunder (a "Notice") by any party hereto to any other party shall
be in writing and delivered personally, sent by a recognized worldwide or
nationwide (whichever is applicable) overnight delivery service with charges
prepaid, sent by registered or certified mail with postage prepaid, or sent by
facsimile transmission:
21
if to the Purchaser to:
Yankee Candle Holdings Corp.
c/o Forstmann Little & Co.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
if to the Seller or Xxxxxxxxx to:
Yankee Candle Company, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxx X. Xxxxx
with a copy to:
Peabody & Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or at such other address for a party as shall be specified by like Notice. Any
Notice which is delivered in the manner provided herein shall be deemed to have
been duly given to the party to whom it is directed upon actual receipt by such
party, except that any Notice delivered by facsimile transmission shall be
deemed to have been given upon
22
confirmation of transmission; provided that Notice so delivered is promptly
followed by duplicate Notice to that same party sent by registered or
certified mail, postage prepaid.
SECTION 9.12 Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York applicable
to agreements made and to be performed wholly within such jurisdiction. Each
of the parties hereby irrevocably and unconditionally consents to submit to
the jurisdiction of the courts of the State of New York and of the United
States of America, in each case located in the County of New York, for any
Litigation arising out of or relating to this Agreement and the transactions
contemplated hereby, and further agrees that service of any process, summons,
notice or document by U.S. registered mail to its respective address set
forth in this Agreement shall be effective service of process for any
Litigation brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any Litigation arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the United
States of America, in each case, located in the County of New York, and
hereby further irrevocably and unconditionally waives and agrees not to plead
or claim in any such court that any such Litigation brought in any such court
has been brought in an inconvenient forum.
SECTION 9.13 Bulk Transfer Laws. The parties hereby waive compliance with
the provisions of any so-called bulk transfer law in any jurisdictioon in
connection with the transactions contemplated hereby. The Seller shall indemnify
and hold harmless the Purchaser and its Affiliates for and against all Losses,
including Losses attributable to any and all Taxes, which may be incurred by
reason of such waiver.
23
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be duly executed on its behalf as of the date first above written.
THE YANKEE CANDLE COMPANY, INC.
By: /s/ Xxxxx Xxxxx
----------------------
Name: Xxxxx Xxxxx
Title: CFO/Treasurer
XXXXXXXX'X TAVERN, INC.
By: /s/ Xxxx Xxxxx
----------------------
Name: Xxxx Xxxxx
Title: President
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------
XXXXXXX XXXXXXXXX
24
GUARANTEE
Each of MBO-VI and Forstmann Little & Co. Equity Partnership-V, L.P.
("EP-V") agrees to cause Yankee Candle Holdings Corp. (including any assignee of
Yankee Candle Holdings Corp.) to fully perform and observe its covenants and
other obligations under the foregoing Asset Purchase Agreement and shall be
entitled to enforce directly any benefit of the Asset Purchase Agreement
accruing to Yankee Candle Holdings Corp. The foregoing agreement of each of
MBO-VI and EP-V shall terminate at the Closing.
Dated: April 1, 1998
FORSTMANN LITTLE & CO. SUBORDINATED DEBT
AND EQUITY MANAGEMENT BUYOUT
PARTNERSHP-VI, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
General Partner
FORSTMANN LITTLE & CO. EQUITY
PARTNERSHP-V, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
General Partner
25
