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Exhibit 2.2
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PURCHASE AGREEMENT
FOR
MEMBERSHIP INTERESTS
OF
PROLER STEELWORKS L.L.C.
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PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is entered into effective as of
August __, 1997, by and among Metal Management, Inc., a Delaware corporation
("MTLM"), Proler Steelworks L.L.C., a Delaware limited liability company
("Proler") and the Proler members ("the Members"). Certain other capitalized
terms used herein are defined in Article X or elsewhere throughout this
Agreement.
RECITALS
A. The Members own, and until the Closing (as defined herein) will own,
all of the issued and outstanding membership interests in Proler, hereinafter
referred to as the "Membership Interests".
B. MTLM has determined it is in its best interests to purchase and the
Members have determined it is in their best interests to sell the Membership
Interests upon the terms and subject to the conditions set forth in this
Agreement.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF PURCHASED SECURITIES
1.1 PURCHASE AND SALE OF PURCHASED SECURITIES. Subject to the terms and
conditions of this Agreement, at the Closing Date, MTLM agrees to purchase from
the Members and each Member agrees to sell, transfer and convey to MTLM, the
Membership Interests.
1.2 PURCHASE PRICE. The aggregate purchase price for the Membership
Interests consists of the following:
(a) $2.0 million payable by certified check or wire transfer of
immediately available funds to the Members at Closing; and
(b) $400,000 represented by MTLM's promissory notes (the "Purchase
Notes") in the form of Exhibit A attached hereto and made a part hereof.
Attached hereto as Exhibit B and made a part hereof is a schedule signed
by each of the Members indicating the portion of the Purchase Price for the
Membership Interests to be paid to each Member (the "Purchase Price
Allocation"). The Purchase Price Allocation shall be the final
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and binding allocation of the purchase price for the Member among the
Members, and MTLM shall pay the purchase price set forth in this Section 1.2 in
accordance with the Purchase Price Allocation.
1.3 THE CLOSING. The Closing of the purchase and sale of the Membership
Interests (the "Closing") shall take place as promptly as practicable (and in
any event within five business days) after satisfaction or waiver of the
conditions set forth in Articles VI and VII (the "Closing Date"), at the
offices of MTLM's counsel in Houston, Texas, or such other place as the parties
may otherwise agree.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF MTLM
As a material inducement to Proler and the Members to enter into this
Agreement and to consummate the transactions contemplated hereby, MTLM makes
the following representations and warranties to Proler and the Members:
2.1 CORPORATE STATUS. MTLM is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2.2 CORPORATE POWER AND AUTHORITY. MTLM has, or will have at the time of
Closing, the corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. MTLM has, or will have at the time of
Closing, taken all action necessary to authorize its execution and delivery of
this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
2.3 ENFORCEABILITY. This Agreement has been, or will have been at the
time of Closing, duly executed and delivered by MTLM and constitutes a legal,
valid and binding obligation of MTLM, enforceable against MTLM in accordance
with its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles
regardless of whether such enforceability is considered in a proceeding at law
or in equity.
2.4 NO COMMISSIONS. MTLM has incurred no obligation for any finder's or
broker's or agent's fees or commissions or similar compensation in connection
with the transactions contemplated hereby.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE MEMBERS AND PROLER
As a material inducement to MTLM to enter into this Agreement and to
consummate the transactions contemplated hereby, each of the Members and Proler
hereby jointly and severally make the following representations and warranties
to MTLM; provided, however, that with respect to the representations and
warranties set forth in Sections 3.6 through 3.18 (except Sections 3.14(a)(i)
and 3.15(a)) and Sections 3.20 through 3.32 such representations and warranties
are made only to the extent of the Members' Knowledge.
3.1 LIMITED LIABILITY COMPANY STATUS. Proler is a limited liability
company under the laws of the State of Delaware. Proler has the requisite
power and authority to own or lease its property and to carry on its business
as now being conducted. Proler is legally qualified to transact business in all
jurisdictions where the nature of its property and the conduct of its business
requires such qualification (all of which jurisdictions are listed on Schedule
3.1) and is in good standing in each of the jurisdictions in which it is so
qualified, except where the failure to be so qualified would not have a
Material Adverse Effect on Proler. There is no pending or threatened proceeding
for the dissolution, liquidation, insolvency or rehabilitation of Proler.
3.2 POWER AND AUTHORITY. Proler and each of the Members has the power
and authority to execute and deliver this Agreement, to perform its respective
obligations hereunder and to consummate the transactions contemplated hereby.
Proler has taken all action necessary to authorize the execution and delivery
of this Agreement, the performance of its respective obligations hereunder and
the consummation of the transactions contemplated hereby. Each of the Members
is a resident of the State of Texas and has the requisite competence to execute
and deliver this Agreement and to perform his obligations hereunder and to
consummate the transactions contemplated hereby.
3.3 ENFORCEABILITY. This Agreement has been duly executed and delivered
by Proler and each of the Members and constitutes the legal, valid and binding
obligation of each of them, enforceable against them in accordance
with its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles
regardless of whether such enforceability is considered in a proceeding at law
or in equity.
3.4 CAPITALIZATION. Schedule 3.4 sets forth the outstanding Membership
Interests. No preemptive rights or rights of first refusal exist with respect
to the Membership Interests and no such rights arise by virtue of or in
connection with the transactions contemplated hereby. There are no proxies,
voting rights or other agreements or understandings with respect to the voting
or transfer of the Membership Interests. Proler is not obligated to redeem or
otherwise acquire any of its outstanding Membership Interests.
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3.5 MEMBERS OF PROLER. Schedule 3.5 sets forth, with respect to Proler,
(i) the name, address and federal taxpayer identification number of, and the
number of outstanding Membership Interests owned by, each Member as of the
close of business on the date of this Agreement; and (ii) the name, address and
federal taxpayer identification number of, and number of Membership Interests
beneficially owned by, each beneficial owner of outstanding shares of capital
stock or Membership Interests (to the extent that record and beneficial
ownership is different). The Members are the holders of all issued and
outstanding Membership Interests, and the Members own such Membership Interests
as set forth on Schedule 3.5, free and clear of all Liens, restrictions and
claims of any kind, except as set forth on Schedule 3.5.
3.6 NO VIOLATION. Except as set forth on Schedule 3.6 and any
applicable requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976 and the rules and regulations promulgated thereunder (the "HSR Act"), the
execution and delivery of this Agreement by Proler and the Members, the
performance by each of them of their respective obligations hereunder and the
consummation by them of the transactions contemplated by this Agreement will
not (i) contravene any provision of the articles of formation or operating
agreement of Proler, (ii) violate any law, statute, ordinance, rule,
regulation, decree, writ, injunction, judgment or order of any Governmental
Authority or of any arbitration award which is either applicable to, binding
upon or enforceable against Proler or the Members; (iii) result in any breach
of, or constitute a default (or an event which would, with the passage of time
or the giving of notice or both, constitute a default) under, or give rise to a
right to terminate, amend, modify, abandon or accelerate, any Contract which is
applicable to, binding upon or enforceable against Proler or the Members, (iv)
result in or require the creation or imposition of any Lien upon or with
respect to any of the property or assets of Proler, or (v) require the consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental Authority, any court or tribunal or any other Person, except any
SEC and other filings required to be made by MTLM.
3.7 RECORDS. The copies of the respective articles of formation and
regulations of Proler which were or will be provided to MTLM are true and
complete and reflect all amendments made through the date of this Agreement.
The minute books for Proler made available to MTLM for review were true and
complete as of the date of such review, no further entries have been made
through the date of this Agreement, such minute books contain the true
signatures of the persons purporting to have signed them, and such minute books
contain an accurate record of all actions of the Members and Managers (and any
committees thereof) of Proler taken by written consent or at a meeting since
formation. All material actions taken by Proler have been duly authorized or
ratified. All accounts, books, ledgers and official and other records of
Proler have been fully, properly and accurately kept and completed in all
material respects, and there are no material inaccuracies or discrepancies of
any kind contained therein. The ledgers of Proler, as previously made
available to MTLM, contain accurate and complete records of all issuances,
transfers and cancellations of Membership Interests of Proler.
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3.8 SUBSIDIARIES. Except as set forth on Schedule 3.8, Proler does not
own, directly or indirectly, any outstanding voting securities of or other
interests in, or control, any other corporation, partnership, joint venture or
other business entity. Except as set forth on Schedule 3.8, Proler does not
have any liabilities or obligations, whether accrued, absolute, contingent or
otherwise, arising from its interest in the entities set forth on such
schedule.
3.9 FINANCIAL STATEMENTS. The Members have delivered to MTLM (i) the
combined financial statements of Proler as of December 31, 1996, including the
notes thereto, audited by Price Waterhouse LLP and (ii) the March 31, 1997
unaudited consolidated financial statements without footnotes, which are
subject to year-end adjustment, of Proler (collectively, the "Financial
Statements"), copies of which are attached as Schedule 3.9 hereto. The balance
sheet dated as of March 31, 1997 included in the Financial Statements is
referred to herein as the "Current Balance Sheet". The Financial Statements
fairly present the financial condition of Proler at each of the balance sheet
dates and the results of operations for the periods covered thereby, and have
been prepared in accordance with GAAP consistently applied for the periods
indicated. The Financial Statements of Proler fairly reflect the transactions,
properties, assets and liabilities of Proler in accordance with GAAP
consistently applied throughout the periods indicated. The Financial
Statements reflect all adjustments necessary for a fair presentation of the
financial information contained therein.
3.10 CHANGES SINCE THE CURRENT BALANCE SHEET DATE. Except as disclosed
in Schedule 3.10, since the date of the Current Balance Sheet, Proler has not
(i) issued any Membership Interests or other securities; (ii) made any
distribution of or with respect to its Membership Interests or other securities
or purchased or redeemed any of its securities; (iii) paid any bonus to or
increased the rate of compensation of any of its managers or salaried employees
or amended any other terms of employment of such persons; (iv) sold, leased or
transferred any of its properties or assets other than in the ordinary course
of business consistent with past practice; (v) made or obligated itself to make
capital expenditures out of the ordinary course of business consistent with
past practice; (vi) made any payment in respect of its liabilities other than
in the ordinary course of business consistent with past practice; (vii)
incurred any obligations or liabilities (including any indebtedness) or entered
into any transaction or series of transactions involving in excess of $25,000
in the aggregate out of the ordinary course of business, except for this
Agreement and the transactions contemplated hereby; (viii) suffered any theft,
damage, destruction or casualty loss, not covered by insurance and for which a
timely claim was filed, in excess of $25,000 in the aggregate; (ix) suffered
any extraordinary losses (whether or not covered by insurance); (x) waived,
canceled, compromised or released any rights having a value in excess of
$25,000 in the aggregate; (xi) made or adopted any change in its accounting
practice or policies; (xii) made any adjustment to its books and records other
than in respect of the conduct of its business activities in the ordinary
course consistent with past practice; (xiii) entered into any transaction with
any Affiliate other than intercompany transactions in the ordinary course of
business consistent with past practice; (xiv) entered into any employment
agreement; (xv) terminated, amended or modified any agreement involving an
amount in excess of $25,000; (xvi) imposed any security interest or other Lien
on any of its assets other than in the ordinary course of business consistent
with past practice; (xvii) delayed paying any account payable which is due and
payable except to the extent being contested in good faith and except in the
ordinary course of its business; (xviii) made or pledged any charitable
contribution other than
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in the ordinary course of business consistent with past practice; (xix)
entered into any other transaction or been subject to any event which has or
may have a Material Adverse Effect on Proler; or (xx) agreed to do any of the
foregoing.
3.11 LIABILITIES. Except as set forth on Schedule 3.11, Proler does not
have any liabilities or obligations, whether accrued, absolute, contingent or
otherwise, except (i) to the extent reflected or taken into account in the
Current Balance Sheet or any notes thereto and not heretofore paid, discharged
or otherwise satisfied, (ii) to the extent specifically set forth in or
incorporated by express reference in any of the Schedules attached hereto,
(iii) liabilities incurred in the ordinary course of business consistent with
past practice since the date of the Current Balance Sheet (none of which
relates to a breach of contract, breach of warranty, tort, infringement or
violation of law, or which arose out of any action, suit, claim, governmental
investigation or arbitration proceeding), (iv) normal accruals,
reclassifications, and audit adjustments which would be reflected on an audited
financial statement and which would not be material in the aggregate, and (v)
liabilities incurred in the ordinary course of business prior to the date of
the Current Balance Sheet which, in accordance with GAAP consistently applied,
were not recorded thereon. The combined net worth of Proler and Proler
Southwest, Inc. will be no less than $1,000,000 as of the Closing Date.
3.12 LITIGATION. Except as set forth on Schedule 3.12, there is no
action, suit, or other legal or administrative proceeding or governmental
investigation, pending or, to the Knowledge of Proler, threatened against, by
or affecting Proler or any of its properties or assets, or the Members, or
which question the validity or enforceability of this Agreement or the
transactions contemplated hereby, and there is no reasonable basis for any of
the foregoing. There are no outstanding orders, decrees or stipulations issued
by any Governmental Authority in any proceeding to which Proler is or was a
party which have not been complied with in full or which continue to impose any
material obligations on Proler.
3.13 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 3.13 to the
Knowledge of Proler and the Members:
(a) Proler is in material compliance with all Environmental, Health
and Safety Laws, including, without limitation, Environmental, Health and
Safety Laws with respect to discharges into the ground water, surface
water and soil, emissions into the ambient air, and generation,
accumulation, storage, treatment, transportation, transfer, labeling,
handling, manufacturing, use, spilling, leaking, dumping, discharging,
release or disposal of Hazardous Substances (as defined herein), or other
Waste. Proler is not currently liable for any penalties, fines or
forfeitures for failure to comply with any Environmental, Health and
Safety Laws. Proler is in material compliance with all required notice,
record keeping and reporting requirements of all Environmental, Health
and Safety Laws, and has complied with all informational requests or
demands arising under the Environmental, Health and Safety Laws.
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(b) Proler has obtained, or caused to be obtained, and, is
in material compliance with, all licenses, certificates, permits,
approvals and registrations (collectively "Licenses") required by the
Environmental, Health and Safety Laws for the ownership of its properties
and assets and the operation of its business as presently conducted,
including, without limitation, all air emission, water discharge, water
use and solid waste, hazardous waste and other Waste generation,
transportation, transfer, storage, treatment or disposal Licenses, and
Proler is in material compliance with all the terms, conditions and
requirements of such Licenses, and copies of such Licenses have been made
available to MTLM. There are no administrative or judicial
investigations, notices, claims or other proceedings pending or
threatened by any Governmental Authority or third parties against Proler,
its business, operations, properties, or assets, which question the
validity or entitlement of Proler to any License required by the
Environmental, Health and Safety Laws for the ownership of each of the
respective properties and assets of Proler and the operation of its
respective business or wherein an unfavorable decision, ruling or finding
would have a Material Adverse Effect on Proler.
(c) Proler has not received and is not aware of any non-compliance
order, warning letter, investigation, notice of violation, claim, suit,
action, judgment, or administrative or judicial proceeding pending or
threatened against or involving Proler, its business, operations,
properties, or assets, issued by any Governmental Authority or third
party with respect to any Environmental, Health and Safety Laws in
connection with the ownership of its properties or assets or the
operation of its business, which has not been resolved to the
satisfaction of the issuing Governmental Authority or third party, or
which could have a Material Adverse Effect on Proler.
(d) Proler is in compliance with, and is not in breach of or default
under any applicable writ, order, judgment, injunction, governmental
communication or decree issued pursuant to the Environmental, Health and
Safety Laws and no event has occurred or is continuing which, with the
passage of time or the giving of notice or both, would constitute such
non-compliance, breach or default thereunder, or affect the Owned
Properties or Leased Premises.
(e) Proler has not generated, manufactured, used, transported,
transferred, stored, handled, treated, spilled, leaked, dumped,
discharged, released or disposed, nor has it arranged for any third
parties to generate, manufacture, use, transport, transfer, store,
handle, treat, spill, leak, dump, discharge, release or dispose of,
Hazardous Substances or other waste in an amount so as to require
remedial efforts to or at any location other than a site permitted to
receive such Hazardous Substances or other waste, nor has it performed,
arranged for such generation, manufacture, use, transportation, transfer,
storage, treatment, spillage, leakage, dumping, discharge, release or
disposal in material contravention of any Environmental, Health and
Safety Laws. Proler has not generated, manufactured, used, stored,
handled, treated, spilled, leaked, dumped, discharged, released or
disposed of, or arranged for any third parties to generate, manufacture,
use, store, handle, treat, spill, leak, dump, discharge, release or
dispose of, any material quantities of Hazardous Substances or other
waste upon property currently or previously owned or leased by it, except
in compliance with
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Environmental, Health and Safety Laws. For purposes of this Section
3.13, the term "Hazardous Substances" shall include any toxic or
hazardous substance, material, or waste, and any other contaminant,
pollutant or constituent thereof, whether liquid, solid, semi-solid,
sludge and/or gaseous, including without limitation, chemicals,
compounds, metals, by-products, pesticides, asbestos containing
materials, petroleum or petroleum products, and polychlorinated
biphenyls, the presence of which requires remediation under any
Environmental, Health and Safety Laws in effect on the Closing Date,
including, without limitation, the United States Department of
Transportation Table (49 CFR 172, 101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and any amendments
thereto; the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendment and
Reauthorization Act of 1986, 42 U.S.C. Section 9601, et seq. (hereinafter
collectively "CERCLA"); the Solid Waste Disposal Act, as amended by the
Resource Conversation and Recovery Act of 1976 and subsequent Hazardous
and Solid Waste Amendments of 1984, 42 U.S.C. Section 6901 et seq.
(hereinafter, collectively "RCRA"); the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Section 1801, et seq.; the
Clean Water Act, as amended, 33 U.S.C. Section 1311, et seq.; the Clean
Air Act, as amended (42 U.S.C. Section 7401-7642); Toxic Substances
Control Act, as amended, 15 U.S.C. Section 2601 et seq.; the Federal
Insecticide, Fungicide, and Rodenticide Act as amended, 7 U.S.C. Section
136-136y ("FIFRA"); the Emergency Planning and Community Right-to-Know
Act of 1986 as amended, 42 U.S.C. Section 11001, et seq. (Title III of
XXXX) ("EPCRA"); the Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. Section 651, et seq. ("OSHA"); any similar state
statute, or regulations implementing such statutes, laws, ordinances,
codes, rules, regulations, orders, rulings, or decrees, or which has been
or shall be determined or interpreted at any time by any Governmental
Authority to be a hazardous or toxic substance regulated under any other
statute, law, regulation, order, code, rule, order, or decree. For
purposes of this Section 3.13, the term "Waste" shall include toxic
agricultural wastes, biomedical wastes, biological wastes, bulky wastes,
construction and demolition debris, garbage, household wastes, industrial
solid wastes, liquid wastes, recyclable materials, sludge, solid wastes,
special wastes, used oils, white goods, and yard trash; provided,
however, the term "Waste" shall not include scrap metal.
(f) Proler has not caused a Release or Discharge of any material
quantity of Hazardous Substance on, into or beneath the surface of any
parcel of the Owned Properties or the Leased Premises or to any
properties adjacent thereto except in compliance with the Environmental,
Health and Safety Laws. There has not occurred, nor is there presently
occurring, a Release or Discharge, or threatened Release or Discharge, of
any Hazardous Substance on, into or beneath the surface of any parcel of
the Owned Properties or the Leased Premises or to any properties adjacent
thereto. For purposes of this Section, the terms "Release" and
"Discharge" shall have the meanings given them in the Environmental,
Health and Safety Laws.
(g) Proler has not generated, handled, manufactured, treated,
stored, used, shipped, transported, transferred, or disposed of, nor has
it allowed or arranged, by contract, agreement or otherwise, for any
third parties to generate, handle, manufacture, treat, store, use, ship,
transport, transfer or dispose of, any material quantity of Hazardous
Substance or
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other Waste to or at a site which, pursuant to CERCLA or any similar
state law (i) has been placed on the National Priorities List or its
state equivalent; or (ii) the Environmental Protection Agency or the
relevant state agency has notified Proler that it has proposed or is
proposing to place on the National Priorities List or its state
equivalent. Neither Proler nor the Members have received notice or have
Knowledge of any facts which could give rise to any notice, that Proler
is a potentially responsible party for a federal or state environmental
cleanup site or for corrective action under CERCLA, RCRA or any other
applicable Environmental Health and Safety Laws. Proler has not submitted
nor was required to submit any notice pursuant to Section 103(c) of
CERCLA with respect to the Leased Premises or the Owned Properties.
Proler has not received any written or, to the Knowledge of Proler, oral
request for information in connection with any federal or state
environmental cleanup site, or in connection with any of the real
property or premises where Proler has transported, transferred or
disposed of other Wastes. Proler has not been required to and has not
undertaken any response or remedial actions or clean-up actions at the
request of any Governmental Authorities or at the request of any other
third party. Proler does not have any material liability under any
Environmental, Health and Safety Laws for personal injury, property
damage, natural resource damage, or clean up obligations.
(h) Except as set forth on Schedule 3.13, Proler does not have any
Aboveground Storage Tanks or Underground Storage Tanks. For purposes of
this Section 3.13, the terms "Aboveground Storage Tanks" and "Underground
Storage Tanks" shall have the meanings given them in Section 6901 et
seq., as amended, of RCRA, or any applicable state or local statute, law,
ordinance, code, rule, regulation, order ruling, or decree, as in effect
as of the Closing Date, governing Aboveground Storage Tanks or
Underground Storage Tanks.
(i) The following have been made available to MTLM regardless of
their materiality, (i) all environmental audits, assessments or
occupational health studies of which Proler is aware undertaken by Proler
or their agents, or by the Members, or by any Governmental Authority, or
by any third party, relating to Proler or any of the Leased Premises or
the Owned Properties; (ii) the results of which Proler is aware of any
ground, water, soil, air or asbestos monitoring undertaken by Proler or
its agents, or by the Members, or by any Governmental Authority, or by
any third party, relating to Proler or any of the Leased Premises or the
Owned Properties; (iii) all written communications between any of Proler
and any Governmental Authority arising under or related to Environmental,
Health and Safety Laws; and (iv) all citations issued under OSHA, or
similar state or local statutes, laws, ordinances, codes, rules,
regulations, orders, rulings, or decrees, relating to or affecting Proler
or any of the Leased Premises or the Owned Properties.
(j) Schedule 3.13 contains a list of the assets of Proler which
contain "asbestos" or "asbestos-containing material" (as such terms are
identified under the Environmental, Health and Safety Laws). Except as
set forth in Schedule 3.13, Proler has operated and continues to operate
in material compliance with all Environmental, Health and Safety Laws
governing the handling, use and exposure to and disposal of asbestos or
asbestos-containing materials. Except as set forth in Schedule 3.13,
there are no claims, actions, suits, governmental investigations or
proceedings before any Governmental Authority or third
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party pending, or threatened against or directly affecting Proler or
any of its assets or operations relating to the use, handling or exposure
to and disposal of asbestos or asbestos-containing materials in
connection with their assets and operations.
(k) As used in this Agreement, "Environmental, Health and Safety
Laws" means all federal, state, regional or local statutes, laws, rules,
regulations, codes, orders, plans, injunctions, decrees, rulings, and
changes or ordinances or judicial or administrative interpretations
thereof, as in effect on the Closing Date, any of which govern or relate
to pollution, protection of the environment, public health and safety,
air emissions, water discharges, hazardous or toxic substances, solid or
hazardous waste or occupational health and safety, as any of these terms
are in such statutes, laws, rules, regulations, codes, orders, plans,
injunctions, decrees, rulings and changes or ordinances, or judicial or
administrative interpretations thereof, including, without limitation,
RCRA, CERCLA, the Hazardous Materials Transportation Act, the Toxic
Substances Control Act, the Clean Air Act, the Clean Water Act, FIFRA,
EPCRA and OSHA.
(l) Schedule 3.13 identifies the operations and activities, and
locations thereof, which have been conducted and are being conducted by
Proler on any of the Owned Properties or the Leased Premises which have
involved the generation, accumulation, storage, treatment,
transportation, labeling, handling, manufacturing, use, spilling,
leaking, dumping, discharging, release or disposal of any material
quantities of Hazardous Substances.
(m) Schedule 3.13 identifies the locations to which Proler has
transferred, transported, hauled, moved, or disposed of Waste over the
past five years and the types and volumes of Hazardous Substances
transferred, transported, hauled, moved, or disposed of to each such
location.
(n) None of the Owned Properties or Leased Properties presently
includes, or has been constructed upon, any "wetlands" as defined under
applicable Environmental, Health and Safety Laws.
(o) As used in this Section 3.13, the term "Companies" is deemed to
refer to Proler or any of its subsidiaries, predecessors-in-interest and
other entities in which Proler has an ownership interest.
(p) As used in Section 3.13(f) and (l), the terms "Owned Properties"
and "Leased Properties" are deemed to also refer to any properties
previously owned or leased by Proler.
3.14 REAL ESTATE.
(a) Proler does not own any real property or any interest therein
except as set forth on Schedule 3.14(a) (the "Owned Properties"), which
Schedule sets forth the location and size of, and principal improvements
and buildings on, the Owned Properties. Except as set forth on Schedule
3.14(a), with respect to each such parcel of Owned Property:
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(i) Proler has good and indefeasible title to each parcel of
its Owned Property, free and clear of any Lien other than (x) liens
for real estate taxes not yet due and payable; (y) recorded
easements, covenants, and other restrictions which do not impair
the current use, occupancy or value of the property subject
thereto, and (z) encumbrances and restrictions described in the
title insurance policies and/or survey listed on Schedule 3.14(a),
all of which policies have been previously delivered to MTLM.
(ii) there are no pending or, to the Knowledge of Proler,
threatened condemnation proceedings, suits or administrative
actions relating to the Owned Properties or other matters affecting
adversely the current use, occupancy or value thereof;
(iii) except as set forth on Schedule 3.14(a), the legal
descriptions for the parcels of Owned Property contained in the
deeds thereof describe such parcels fully and adequately; the
buildings and improvements are located within the boundary lines of
the described parcels of land, are not in violation of applicable
setback requirements, local comprehensive plan provisions, zoning
laws and ordinances (and none of the properties or buildings or
improvements thereon are subject to "permitted non-conforming use"
or "permitted non-conforming structure" classifications), building
code requirements, permits, licenses or other forms of approval by
any Governmental Authority, and do not encroach on any easement
which may burden the land;
(iv) all facilities have received all approvals of
Governmental Authorities (including licenses and permits) required
in connection with the ownership or operation thereof and have been
operated and maintained in material compliance with applicable
laws, ordinances, rules and regulations;
(v) there are no Contracts granting to any party or parties
the right of use or occupancy of any portion of the parcels of
Owned Property, except as set forth on Schedule 3.14(a);
(vi) there are no outstanding options or rights of first
refusal to purchase the parcels of Owned Property, or any portion
thereof or interest therein;
(vii) there are no parties (other than the Proler Companies)
in possession of the parcels of Owned Property, other than tenants
under any leases disclosed in Schedule 3.14(a) who are in
possession of space to which they are entitled;
(viii) all facilities located on the parcels of Owned Property
are supplied with utilities and other services necessary for the
operation of such facilities;
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(ix) each parcel of Owned Property abuts on and has direct
vehicular access to a public road, or has access to a public road;
(x) all improvements and buildings on the Owned Property are
in good repair and adequate for the use of such Owned Property in
the manner in which presently used; and
(xi) there are no material service contracts, management
agreements or similar agreements which affect the parcels of Owned
Property, except as set forth on Schedule 3.14(a).
(b) There are no material leases, licenses or similar agreements
("Leases") to which Proler is a party.
3.15 GOOD TITLE TO AND CONDITION OF ASSETS.
(a) Except as set forth on Schedule 3.15, Proler has good and
marketable title to all of its Assets, free and clear of any Liens or
restrictions on use. For purposes of this Agreement, the term "Assets"
means all of the properties and assets owned by Proler, other than the
Owned Properties and the Leased Premises, whether personal or mixed,
tangible or intangible, wherever located.
(b) The Fixed Assets currently in use for the business and
operations of Proler are in good operating condition, normal wear and
tear excepted and have been maintained in accordance with sound industry
practices. For purposes of this Agreement, the term "Fixed Assets" means
all vehicles, machinery, equipment, tools, supplies, leasehold
improvements, furniture and fixtures owned by Proler or set forth on the
Current Balance Sheet or acquired by Proler since the date of the Current
Balance Sheet.
3.16 COMPLIANCE WITH LAWS.
(a) Proler is in material compliance with all laws, regulations and
orders applicable to it, its respective business and operations (as
conducted by it now and in the past), the Assets, the Owned Properties
and the Leased Premises and any other properties and assets (in each case
owned or used by it now or in the past). Except as set forth on Schedule
3.16, Proler has not been cited, fined or otherwise notified of any
asserted past or current material failure to comply with any laws,
regulations or orders and no proceeding with respect to any such material
violation is pending or, to Proler's Knowledge, threatened.
(b) Proler has not made any payment of funds in connection with its
business which is prohibited by law, and no funds have been set aside to
be used in connection with its business for any payment prohibited by
law.
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(c) Proler has complied with the terms and provisions of the
Immigration Reform and Control Act of 1986, as amended (the "Immigration
Act"). With respect to each Employee (as defined in 8 C.F.R. 274a.1(f))
of Proler for whom compliance with the Immigration Act as employer is
required, Proler has on file a true, accurate and complete copy of (i)
each Employee's Form I-9 (Employment Eligibility Verification Form) and
(ii) all other records, documents or other papers prepared, procured
and/or retained by Proler pursuant to the Immigration Act. Proler has
not been cited, fined, served with a Notice of Intent to Fine or with a
Cease and Desist Order, nor has any action or administrative proceeding
been initiated or, to the knowledge of Proler, threatened against it, by
the Immigration and Naturalization Service by reason of any actual or
alleged failure to comply with the Immigration Act.
(d) Except as fully described on Schedule 3.16, Proler is not
subject to any Contract, decree or injunction which restricts the
continued operation of any business or the expansion thereof to other
geographical areas, customers and suppliers or lines of business.
3.17 LABOR AND EMPLOYMENT MATTERS. Schedule 3.17 sets forth the name,
address, social security number and current rate of compensation of each of the
employees of Proler. Proler is not a party to or bound by any collective
bargaining agreement or any other agreement with a labor union, and there have
been no efforts by any labor union during the 24 months prior to the date
hereof to organize any employees of any of the Proler Companies into one or
more collective bargaining units. There is no pending or, to Proler's
Knowledge, threatened labor dispute, strike or work stoppage which affects or
which may affect the business of Proler which may interfere with its continued
operations. Proler has not within the last 24 months committed any unfair
labor practice as defined in the National Labor Relations Act, as amended, and
there is no pending or, to Proler's Knowledge, threatened charge or complaint
against any of the Proler Companies by or with the National Labor Relations
Board or any representative thereof. There has been no strike, walkout or work
stoppage involving any of the employees of any of the Proler Companies during
the 24 months prior to the date hereof. The Members have no Knowledge that any
executive or key employee or group of employees has any plans to terminate his,
her or their employment with Proler as a result of this Agreement or otherwise.
There are no contracts, agreements or plans of the following nature, whether
formal or informal, and whether or not in writing, to which Proler is a party
or under which it has an obligation: (i) employment agreements, (ii)
noncompetition agreements, and (iii) consulting agreements. Proler has
complied in all material respects with applicable laws, rules and regulations
relating to employment, civil rights and equal employment opportunities,
including but not limited to, the Civil Rights Act of 1964, the Fair Labor
Standards Act and the Worker Adjustment and Retraining Notification Act of
1988, as in effect on the Closing Date.
3.18 EMPLOYEE BENEFIT PLANS.
(a) Employee Benefit Plans. Schedule 3.18 contains a list setting
forth each employee benefit plan or arrangement of Proler, including but
not limited to employee pension benefit plans, as defined in Section 3(2)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), multiemployer plans, as defined in
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Section 3(37) of ERISA, employee welfare benefit plans, as defined in
Section 3(1) of ERISA, deferred compensation plans, stock option plans,
bonus plans, stock purchase plans, hospitalization, disability and other
insurance plans, severance or termination pay plans and policies, whether
or not described in Section 3(3) of ERISA, in which employees, their
spouses or dependents, of Proler participate ("Employee Benefit Plans")
(true and accurate copies of which, together with the most recent annual
reports on Form 5500 and summary plan descriptions with respect thereto,
were made available to MTLM).
(b) Compliance with Law. With respect to each Employee Benefit Plan
(i) each has been administered in all material respects in compliance
with its terms and with all applicable laws, including, but not limited
to, ERISA and the Internal Revenue Code of 1986, as amended (the "Code");
(ii) no actions, suits, claims or disputes are pending, or threatened;
(iii) no audits, inquiries, reviews, proceedings, claims, or demands are
pending with any governmental or regulatory agency; (iv) to the Knowledge
of Proler, there are no facts which could give rise to any material
liability in the event of any such investigation, claim, action, suit,
audit, review, or other proceeding; (v) all material reports, returns,
and similar documents required to be filed with any governmental agency
or distributed to any plan participant have been duly or timely filed or
distributed; and (vi) no "prohibited transaction" has occurred within the
meaning of the applicable provisions of ERISA or the Code.
(c) Qualified Plans. With respect to each Employee Benefit Plan
intended to qualify under Code Section 401(a) or 403(a) (i) the Internal
Revenue Service has issued a favorable determination opinion letter, true
and correct copies of which have been made available to MTLM, that such
plans are qualified and exempt from federal income taxes; (ii) no such
determination letter has been revoked nor has revocation been threatened,
nor has any amendment or other action or omission occurred with respect
to any such plan since the date of its most recent determination letter
or application therefor in any respect which would adversely affect its
qualification or materially increase its costs; (iii) all contributions
to the plans, and all payments under the plans (except those to be made
from a trust qualified under Section 401(a) of the Code) and all payments
with respect to the plans (including, without limitation, PBGC and
insurance premiums) for any period ending before the Closing Date that
are not yet, but will be, required to be made are properly accrued and
reflected on the Current Balance Sheet or are disclosed on Schedule
3.18; and (iv) no such plan is subject to Code Sections 312 or 380 of
Title IV of ERISA.
(d) Welfare Plans. Other than as disclosed in Schedule 3.18, (i)
Proler is not obligated under any employee welfare benefit plan as
described in Section 3(1) of ERISA ("Welfare Plan"), whether or not
disclosed in Schedule 3.18, to provide medical or death benefits with
respect to any employee or former employee of Proler, or its predecessors
after termination of employment; (ii) each of the Proler Companies has
complied with the notice and continuation coverage requirements of
Section 4980B of the Code and the regulations thereunder with respect to
each Welfare Plan that is, or was during any taxable year for which the
statute of limitations on the assessment of federal income taxes remains
open by consent or otherwise, a group health plan within the meaning of
Section 5000(b)(1) of the
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Code, and (iii) there are no reserves, assets, surplus or prepaid
premiums under any Welfare Plan which is an Employee Benefit Plan. The
consummation of the transactions contemplated by this Agreement will not
entitle any individual to severance pay, and, will not accelerate the
time of payment or vesting, or increase the amount of compensation, due
to any individual.
(e) Controlled Group Liability. Neither Proler, nor any entity that
would be aggregated with it under Code Section 414(b), (c), (m) or (o):
(i) has ever terminated or withdrawn from an employee benefit plan under
circumstances resulting (or expected to result) in liability to the
Pension Benefit Guaranty Corporation ("PBGC"), the fund by which the
employee benefit plan is funded, or any employee or beneficiary for whose
benefit the plan is or was maintained (other than routine claims for
benefits); (ii) has any assets subject to (or expected to be subject to)
a lien for unpaid contributions to any employee benefit plan; (iii) has
failed to pay premiums to the PBGC when due; (iv) is subject to (or
expected to be subject to) an excise tax under Code Section 4971; or (v)
has engaged in any transaction which would give rise to liability under
Section 4069 or Section 4212(c) of ERISA.
(f) Other Liabilities. Except as set forth on Schedule 3.18 for the
listed plans, (i) none of the Employee Benefit Plans obligates Proler to
pay separation, severance, termination or similar benefits solely as a
result of any transaction contemplated by this Agreement or solely as a
result of a "change of control" (as such term is defined in Section 280G
of the Code), (ii) all required or discretionary (in accordance with
historical practices) payments, premiums, contributions, reimbursements,
or accruals for all periods ending prior to or as of the Closing Date
shall have been made or properly accrued on the Current Balance Sheet or
will be properly accrued on the books and records of Proler as of the
Closing Date, and (iii) none of the Employee Benefit Plans has any
unfunded liabilities which are not reflected on the Current Balance Sheet
or the books and records of Proler.
3.19 TAX MATTERS. There are no Tax Returns required to be filed prior
to the date hereof with respect to Proler, or any of its income, properties,
franchises or operations have been filed, each such Tax Return has been
prepared in compliance with all applicable laws and regulations, and all such
Tax Returns are true and complete in all respects. All Taxes due and payable
by or with respect to Proler, whether or not reflected on the Tax Returns, have
been paid or accrued on the Current Balance Sheet or will be accrued on its
books and records as of the Closing. With respect to any open tax year: (i) no
taxable period has been audited by the relevant taxing authority; (ii) no
deficiency or proposed adjustment which has not been settled or otherwise
resolved for any amount of Taxes has been asserted or assessed by any taxing
authority; (iii) Proler has not consented to extend the time in which any Taxes
may be assessed or collected by any taxing authority; (iv) Proler has not
requested or been granted an extension of the time for filing any Tax Return to
a date later than the Closing Date; (v) there is no action, suit, taxing
authority proceeding, or audit or claim for refund now in progress, pending or,
to the Knowledge of Proler, threatened against or with respect to Proler
regarding Taxes; (vi) Proler has not made an election or filed a consent under
Section 341(f) of the Code (or any corresponding provision of state, local or
foreign law) on or prior to the Closing Date; (vii) there are no Liens for
Taxes (other than for current Taxes not yet due and payable) upon the assets of
Proler, (viii) Proler will not be required (A) as a result of a change in
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method of accounting for a taxable period ending on or prior to the
Closing Date, to include any adjustment under Section 481(c) of the Code (or
any corresponding provision of state, local or foreign law) in taxable income
for any taxable period (or portion thereof) beginning after the Closing Date or
(B) as a result of any "closing agreement," as described in Section 7121 of the
Code (or any corresponding provision of state, local or foreign law), to
include any item of income or exclude any item of deduction from any taxable
period (or portion thereof) beginning after the Closing Date; (ix) Proler is
not a party to or bound by any tax allocation or tax sharing agreement or has
any current or potential contractual obligation to indemnify any other Person
with respect to Taxes; (x) there is no basis for any assessment, deficiency
notice, 30-day letter or similar notice with respect to any Tax to be issued to
Proler with respect to any period on or before the Closing Date; (xi) Proler
has not made any payments, and is or will not become obligated (under any
contract entered into on or before the Closing Date) to make any payments, that
will be non-deductible under Section 280G of the Code (or any corresponding
provision of state, local or foreign law); (xii) Proler has not been a United
States real property holding corporation within the meaning of Section
897(c)(2) of the Code (or any corresponding provision of state, local or
foreign law) during the applicable period specified in Section 897(c)(1)(a)(ii)
of the Code (or any corresponding provision of state, local or foreign law);
(xiii) no claim has ever been made by a taxing authority in a jurisdiction
where Proler does not file Tax Returns that is or may be subject to Taxes
assessed by such jurisdiction; and (xiv) Proler does not have any permanent
establishment in any foreign country, as defined in the relevant tax treaty
between the United States of America and such foreign country; (xv) true and
complete copies of all income and sales Tax Returns filed by or with respect to
Proler for the past two years has been made available to MTLM; (xvi) Proler
will not be subject to any Taxes for the period ending at the Closing Date for
any period for which a Tax Return has not been filed imposed pursuant to
Section 1374 or Section 1375 of the Code (or any corresponding provision of
state, local or foreign law); and (xvii) to the Knowledge of Proler, no sales
or use tax or property transfer tax (other than sales tax on aircraft, boats,
mobile homes and motor vehicles), non-recurring intangibles tax, documentary
stamp tax or other excise tax (or comparable tax imposed by any Governmental
Authority) will be payable by Proler by virtue of the transactions contemplated
in this Agreement.
3.20 INSURANCE. Proler is covered by valid, outstanding and enforceable
policies of insurance issued to it by insurers covering its properties, assets
and business (the "Insurance Policies"). Such Insurance Policies are in full
force and effect, and all premiums due thereon have been paid. As of the
Closing Date each of the Insurance Policies will be in full force and effect.
None of the Insurance Policies will lapse or terminate as a result of the
transactions contemplated by this Agreement. Proler has complied with the
provisions of such Insurance Policies. Schedule 3.20 contains (i) a complete
and correct list of all Insurance Policies and all amendments and riders
thereto (copies of which have been made available to MTLM) and (ii) a detailed
description of each pending claim under any of the Insurance Policies for an
amount in excess of $5,000 that relates to loss or damage to the properties,
assets or business of Proler. Proler has not failed to give, in a timely
manner, any notice required under any of the Insurance Policies to preserve its
rights thereunder.
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3.21 RECEIVABLES. All of the Receivables represent bona fide
transactions and arose in the ordinary course of business of Proler. All of
the Receivables are good and collectible receivables, and will be collected in
full in accordance with the terms of such receivables (and in any event within
six months following the Closing), without set off or counterclaims, subject to
the allowance for doubtful accounts, if any, set forth on the Current Balance
Sheet as reasonably adjusted since the date of the Current Balance Sheet in the
ordinary course of business consistent with past practice. For purposes of
this Agreement, the term "Receivables" means all receivables of Proler,
including all trade account receivables arising from the provision of services
or sale of inventory, notes receivable, and insurance proceeds receivable.
3.22 LICENSES AND PERMITS. Proler possesses all material licenses and
required governmental or official approvals, permits or authorizations
(collectively, the "Permits") for its business and operations, including the
operation of the Owned Properties and Leased Premises, which Permits are listed
on Schedule 3.22. All such Permits are valid and in full force and effect,
Proler is in material compliance with the requirements thereof, and no
proceeding is pending or, to the Knowledge of Proler, threatened to revoke or
amend any of them. Except as set forth on Schedule 3.22, none of such Permits
is or will be impaired or in any way affected by the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby.
3.23 ADEQUACY OF THE ASSETS; RELATIONSHIPS WITH CUSTOMERS AND SUPPLIERS;
AFFILIATED TRANSACTIONS. The Assets, Owned Properties and Leased Premises
constitute, in the aggregate, all of the assets and properties necessary for
the conduct of the business of Proler in the manner in which and to the extent
to which such business is currently being conducted. No current supplier to
Proler of items essential to the conduct of its business will or, to the
Knowledge of Proler, has threatened to terminate its respective business
relationship with it for any reason. Proler does not have any direct or
indirect interest in any customer, supplier or competitor of
Proler, or in any person from whom or to whom Proler leases real or personal
property. No manager or Member of Proler, nor any person related by blood or
marriage to any such person, nor any entity in which any such person owns any
beneficial interest, is a party to any Contract or transaction with Proler or
has any interest in any property used by Proler.
3.24 INTELLECTUAL PROPERTY. Proler has full legal right, title and
interest in and to all trademarks, service marks, trade names, copyrights,
know-how, patents, trade secrets, licenses (including licenses for the use of
computer software programs), and other intellectual property used in the
conduct of its business (the "Intellectual Property"). The conduct of the
business of Proler as currently conducted, and the unrestricted conduct and the
unrestricted use and exploitation of the Intellectual Property, does not
infringe or misappropriate any rights held or asserted by any Person, and no
Person is infringing on the Intellectual Property. No payments are required
for the continued use of the Intellectual Property. None of the Intellectual
Property has ever been declared invalid or unenforceable, or is the subject of
any pending or, to the Knowledge of Proler, threatened action for opposition,
cancellation, declaration, infringement, or invalidity, unenforceability or
misappropriation or like claim, action or proceeding.
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3.25 CONTRACTS. Schedule 3.25 sets forth a list of each Contract to
which Proler is a party or by which its properties and assets are bound and
which is material to its business, assets, properties or prospects (the
"Designated Contracts"), true and correct copies of which have been made
available to MTLM. The copy of each Designated Contract made available to MTLM
is a true and complete copy of the document it purports to represent and
reflects all amendments thereto made through the date of this Agreement.
Except as set forth on Schedule 3.25, Proler has not violated any of the
material terms or conditions of any Designated Contract or any term or
condition which would permit termination or material modification of any
Designated Contract, and, to the knowledge of Proler, all of the covenants to
be performed by any other party thereto have been fully performed and there are
no asserted claims for breach or indemnification or notice of default or
termination under any Designated Contract. Except as set forth on Schedule
3.25, no event has occurred which constitutes, or after notice or the passage
of time, or both, would constitute, a material default by Proler under any
Designated Contract, and, to the Knowledge of Proler, no such event has
occurred which constitutes or would constitute a material default by any other
party. Proler is not subject to any material liability or payment resulting
from renegotiation of amounts paid to them under any Designated Contract. As
used in this Section, Designated Contracts shall include, without limitation,
(a) loan agreements, indentures, mortgages, pledges, hypothecations, deeds of
trust, conditional sale or title retention agreements, security agreements,
equipment financing obligations or guaranties, or other sources of contingent
liability in respect of any indebtedness or obligations to any other Person, or
letters of intent or commitment letters with respect to same; (b) contracts
obligating Proler to purchase or sell products or services; (c) leases of real
property, and leases of personal property not cancelable without penalty on
notice of 60 days or less or calling for payment of an annual gross rental
exceeding $10,000.00; (d) distribution, sales agency or franchise or similar
agreements, or agreements providing for an independent contractor's services,
or letters of intent with respect to same; (e) employment agreements,
management service agreements, consulting agreements,
confidentiality agreements, noncompetition agreements and any other agreements
relating to any employee, Manager or Member of Proler; (f) licenses,
assignments or transfers of trademarks, trade names, service marks, patents,
copyrights, trade secrets or know how, or other agreements regarding
proprietary rights or intellectual property; (g) any Contract relating to
pending capital expenditures in excess of $10,000 by Proler; and (h) other
material Contracts or understandings, irrespective of subject matter and
whether or not in writing, not entered into in the ordinary course of business
by Proler and not otherwise disclosed on the Schedules.
3.26 CUSTOMER LISTS AND RECURRING REVENUE. At least two (2) business
days prior to the Closing Date, Proler will make available to MTLM a true,
correct and complete list of its 20 largest customers ("Material Customers")
and suppliers together with the applicable percentage of total sales or
purchases, as applicable. At least two (2) business days prior to the Closing
Date, true, correct and complete copies of any agreements with such customers
or suppliers which are anticipated to endure beyond the Closing will be
furnished by the Members to MTLM. Other than Material Customers, no customer
of Proler as of the date of this Agreement accounts for more than 1% of its
combined annual revenue. At least two (2) business days prior to the Closing
Date, Proler will make available to MTLM each Material Customer's name,
address, account number, term of franchise or agreement, billing cycle, type of
service and rates charged.
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3.27 BUSINESS LOCATIONS. As of the date hereof, Proler does not have
any office or place of business other than as identified on Schedule 3.14(a)
and all locations where the equipment, inventory, chattel paper and books and
records of Proler are located as of the date hereof are fully identified on
Schedule 3.14(a).
3.28 NAMES; PRIOR ACQUISITIONS. Proler has not changed its name or used
any assumed or fictitious name, or been the surviving entity in a merger,
acquired any business or changed its principal place of business or chief
executive office, within the past 10 years.
3.29 NO COMMISSIONS. Neither Proler nor the Members have incurred any
obligation for any finder's or broker's or agent's fees or commissions or
similar compensation in connection with the transactions contemplated hereby.
3.30 INVENTORY. All Assets that consist of inventory (including raw
materials and work-in-progress): (i) were acquired in the ordinary course of
business consistent with past practice; (ii) are of a quality, quantity, and
condition useable or saleable in the ordinary course of business within
Proler's normal inventory turnover experience; and (iii) are valued in
accordance with GAAP. Proler does not have any material liability with
respect to the return or repurchase of any goods in the possession of any
customer outside the ordinary course of business.
3.31 IDENTIFICATION, ACQUISITION AND DISPOSITION OF ASSETS AND
LIABILITIES. Schedule 3.31(a) sets forth a listing of all of the material
depreciable and amortizable assets and properties (including real, personal and
mixed) owned by Proler as of March 31, 1997.
3.32 RESTRICTIONS. There are no non-competition, non-solicitation,
confidentiality and other restrictive covenants to which Proler and/or any
Member is a party or otherwise bound. There are no contracts or other
conditions, circumstances, events or agreements which would in any way limit or
restrict Proler from engaging in any business anywhere in the world.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE CLOSING
4.1 CONDUCT OF BUSINESS OF PROLER PENDING THE CLOSING. Except as set
forth on Schedule 4.1, Proler covenants and agrees that, between the date of
this Agreement and the Closing Date, the business of Proler shall be conducted
only in, and Proler shall not take any action except in, the ordinary course of
business, consistent with past practice and in material compliance with all
rules, regulations and laws. Proler shall use commercially reasonable efforts
to preserve intact its business organization, to keep available the services of
its respective current Managers, employees and consultants, and to preserve and
keep intact its present relationships with customers, suppliers and other
persons with which it has significant business relations. By way of
amplification and not limitation, except as contemplated by this Agreement, or
in the ordinary course of business, Proler shall not, between the date of this
Agreement and the Closing Date, directly or indirectly, do or propose or agree
to do any of the following without the prior written consent of MTLM:
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(a) amend or otherwise change its articles of formation or Operating
Agreement;
(b) issue, sell, pledge, dispose of, encumber, or, authorize the
issuance, sale, pledge, disposition, grant or encumbrance of (i) any
Membership Interests, or any options, warrants, convertible securities or
other rights of any kind to acquire any Membership Interests, or any
other ownership interest, of it, or, (ii) any of their respective assets,
tangible or intangible, except in the ordinary course of business
consistent with past practice;
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, Membership Interests, property or
otherwise, with respect to any of its Membership Interests;
(d) reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of its Membership
Interests;
(e) (i) acquire (including, without limitation, for cash or shares
of stock, by merger, consolidation, or acquisition of stock or assets)
any interest in any corporation, partnership or other business
organization or division thereof or any assets, or make any
investment either by purchase of stock or securities, contributions of
capital or property transfer, or, except in the ordinary course of
business, consistent with past practice, purchase any property or assets
of any other Person, (ii) incur any indebtedness for borrowed money or
issue any debt securities or assume, guarantee or endorse or otherwise as
an accommodation become responsible for, the obligations of any Person,
or make any loans or advances, or (iii) enter into any Contract other
than in the ordinary course of business, consistent with past practice;
(f) increase the compensation payable or to become payable to its
respective Managers, or, except as presently bound to do, grant any
severance or termination pay to, or enter into any employment or
severance agreement with, any of its respective Managers, or establish,
adopt, enter into or amend or take any action to accelerate any rights or
benefits under any collective bargaining, bonus, profit sharing, trust,
compensation, stock option, restricted stock, pension, retirement,
deferred compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any
directors, officers or employees;
(g) sell, pledge or otherwise dispose of any asset or the stock of
any subsidiary or take any other action other than in the ordinary course
of business and in a manner consistent with past practice with respect to
accounting policies or procedures;
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(h) pay, discharge or satisfy any existing claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the
ordinary course of business and consistent with past practice of due and
payable liabilities reflected or reserved against in its financial
statements, as appropriate, or liabilities incurred after the date hereof
in the ordinary course of business and consistent with past practice;
(i) increase or decrease prices charged to its respective customers,
except for previously announced price changes or except in the ordinary
course of business, or take any other action which might reasonably
result in any material increase in the loss of customers through
non-renewal or termination of contracts or other causes; or
(j) agree, in writing or otherwise, to take or authorize any of the
foregoing actions or any action which would make any representation or
warranty in Article III untrue or incorrect.
4.2 CONDUCT OF BUSINESS OF MTLM PENDING THE CLOSING. MTLM covenants
and agrees that, between the date of this Agreement and the Closing Date, the
business of MTLM shall be conducted only in the ordinary and usual course,
consistent with past practices, and MTLM will notify Proler of any material
developments. Notwithstanding the foregoing, Proler acknowledges that the
nature of the ordinary and usual course of MTLM's business includes
acquisitions in the line of business in which MTLM is engaged and related
businesses hereafter acquired. MTLM shall promptly provide Proler with a copy
of any of MTLM's press releases. Furthermore, MTLM shall not declare a stock
split, stock dividend or similar transaction. In addition, MTLM will use
commercially reasonable efforts to preserve and keep intact its business
organization, to keep available to MTLM the services of its current employees,
including officers, and to preserve the goodwill of the customers, suppliers,
creditors and others having business relations with MTLM.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 FURTHER ASSURANCES. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or appropriate to effectuate, carry out and comply with all
of the terms of this Agreement and the transactions contemplated hereby.
5.2 COMPLIANCE WITH COVENANTS. The Members shall cause Proler to comply
with all of the respective covenants of Proler under this Agreement.
5.3 COOPERATION. Each of the parties agrees to cooperate with the other
in the preparation and filing of all forms, notifications, reports and
information, if any, required or reasonably deemed advisable pursuant to any
law, rule or regulation or the rules of any exchange on which the MTLM Common
Stock is listed (the Nasdaq Stock Market) in connection with the
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transactions contemplated by this Agreement and to use their respective
best efforts to agree jointly on a method to overcome any objections by any
Governmental Authority to any such transactions.
5.4 ACCESS TO INFORMATION. From the date hereof to the Closing Date,
Proler and MTLM shall (and shall cause its respective directors, officers,
employees, auditors, counsel and agents to) afford each other and their
officers, employees, auditors, counsel and agents reasonable access at all
reasonable times to its properties, offices, and other facilities, to its
officers and employees and to all books and records, and shall furnish such
persons with all financial, operating and other data and information as may be
requested.
5.5 NOTIFICATION OF CERTAIN MATTERS. The Members and MTLM shall give
prompt notice to the other of the occurrence or non-occurrence of any event
which would likely cause any representation or warranty contained herein to be
untrue or inaccurate, or any covenant, condition, or agreement contained herein
not to be complied with or satisfied.
5.6 TAX TREATMENT. Each party to this Agreement has sought and received
its own advice as to the tax treatment of the transactions covered by this
Agreement and is not relying on any representations of the other parties or
their respective advisers with respect thereto. All parties hereto agree to
fully and completely comply with the reporting requirements of the Internal
Revenue Service.
5.7 CONFIDENTIALITY; PUBLICITY. Before the Closing, none of the parties
hereto shall make any public release of information regarding the matters
contemplated herein except (i) that a joint press release in agreed form may be
issued by the parties after the execution of this Agreement and the Closing,
(ii) that the parties may each continue their own communications with their
respective employees, customers, suppliers, franchises, lenders, lessors,
stockholders and other particular groups as may be legally required or
necessary or appropriate and not inconsistent with the best interests of the
other parties or the prompt consummation of this Agreement, and (iii) as
required by law.
5.8 NO OTHER DISCUSSIONS. Prior to September 1, 1997, Proler shall not,
nor shall it permit any of its subsidiaries or affiliates to, nor shall it
authorize or permit any Manager, employee, investment banker, attorney or other
advisor or representative of Proler or any of its subsidiaries to, (a) solicit,
initiate or encourage the submission of any merger proposal with respect to
Proler, (b) enter into any agreement with respect to any such proposal, or (c)
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any merger proposal with respect to Proler. Without
limiting the foregoing, it is understood that any violation of the restrictions
set forth in the preceding sentence by any Manager of Proler or any of its
subsidiaries or affiliates or any investment banker or other advisor to any
representative of Proler, whether or not such person is purporting to act on
behalf of Proler or otherwise, shall be deemed to be a breach of this Section
by Proler. For this Agreement, "a merger proposal" means any proposal, other
than a proposal by MTLM or any of its affiliates, for a merger or other
business combination involving Proler or any proposal or offer, other than a
proposal or offer by MTLM or any of its affiliates, to acquire in any manner,
directly or indirectly,
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an equity interest in Proler, any securities of Proler or a substantial
portion of the assets of Proler, taken as a whole.
5.9 TRADING IN MTLM'S COMMON STOCK. Except as otherwise expressly
consented to by MTLM, from the date of this Agreement until the Closing Date,
none of Proler, nor the Members (nor any Affiliates thereof) will directly or
indirectly purchase or sell (including short sales) any shares of the Common
Stock of MTLM in any transactions effected on the Nasdaq Stock Market or
otherwise.
5.10 OTHER AGREEMENTS. Upon the Closing, each party hereto that is a
signatory to any Exhibits (the "Other Agreements") agrees to execute and
deliver such Other Agreements, as appropriate, to the other parties to such
Other Agreements, and each party who is a married individual shall cause his
spouse to execute all consents requested by MTLM to consummate the transactions
set forth herein.
5.11 HSR ACT COMPLIANCE. If required, Proler, the Members and MTLM
will as promptly as practicable, but in no event later than 10 business days
following the execution and delivery of this Agreement, file or cause to be
filed with the United States Federal Trade Commission (the "FTC") and the
United State Department of Justice (the "DOJ") the notification and report form
required for the transactions contemplated hereby and any supplemental
information requested in connection therewith pursuant to the HSR Act. Any
such notification and report form and supplemental information will be in
substantial compliance with the requirements of the HSR Act. Each of MTLM,
Proler and the Members will furnish to the others such necessary information
and reasonable assistance as the others may request in connection with the
preparation of any filing or submission which is necessary under the HSR Act.
Each of Proler, the Members and MTLM will keep each other apprised of the
status of any communications with, and inquiries or requests for additional
information addressed to the entity that filed a notification and report form
as an acquired or acquiring person from, the FTC or the DOJ and shall comply or
cause its respective filing person to comply promptly with any such inquiry or
request. Each of Proler, the Members and MTLM will use commercially reasonable
efforts to obtain any clearance required under the HSR Act for the purchase and
sale of the Purchased Securities.
5.12 CORPORATE AUTHORITY. MTLM, Proler and the Members agree to use
their respective best efforts to obtain the authorizations required for each to
execute and deliver this Agreement and to perform each of their respective
obligations hereunder and to consummate the transactions contemplated hereby.
5.13 NO SOLICITATION OF EMPLOYEES. MTLM agrees that for the three-year
period after the date of this Agreement, MTLM will not, and will cause its
affiliates to not, directly or indirectly, (i) solicit for employment by any
such person, its affiliates or anyone else, any employee or then currently
active independent contractor of Proler or their affiliates, or any person who
was an employee or then currently active independent contractor of Proler or
its affiliates, within the six-month period immediately preceding such
solicitation of employment, other than such person (a) whose employment or
independent contractor relationship was terminated by either of Proler or
affiliate, or (b) who independently responded to a general solicitation for
employment by XXXX
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or its affiliates; or (c) induce or attempt to induce, any employee or
independent contractor of Proler or its affiliates, to terminate such
employee's employment or independent contractor's active contractual
relationship; provided, however, the foregoing shall not apply if the foregoing
does not occur due to a breach of this Agreement by Proler or the Members.
Proler agrees that for the three-year period after the date of this
Agreement, Proler will not, and will cause its affiliates to not, directly or
indirectly, (i) solicit for employment by any such person, its affiliates or
anyone else, any employee or then currently active independent contract of MTLM
or its affiliates, or any person who was an employee or then currently active
independent contractor of MTLM or its affiliates, within the six-month period
immediately preceding such solicitation of employment, other than such person
(a) whose employment or independent contractor relationship was terminated by
MTLM or its affiliate, or (b) who independently responded to a general
solicitation for employment by Proler, or (ii) induce or attempt to induce, any
employee or independent contractor of MTLM or its affiliates, to terminate such
employee's employment or independent contractor's active contractual
relationship; provided, however, the foregoing shall not apply if the foregoing
does not occur due to a breach of this Agreement by MTLM.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF MTLM
The obligations of MTLM hereunder shall be subject to the fulfillment at
or prior to the Closing Date of the following conditions, any or all of which
may be waived in whole or in part by MTLM:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of the Members contained in
this Agreement shall be true and correct at and as of the Closing Date with the
same force and effect as though made at and as of that time except (i) for
changes specifically permitted by or disclosed pursuant to this Agreement, and
(ii) that those representations and warranties which address matters only as of
a particular date shall remain true and correct as of such date. Proler and
the Members shall have performed and complied with all of their respective
obligations required by this Agreement to be performed or complied with at or
prior to the Closing Date. Proler and the Members shall have delivered to MTLM
a certificate, dated as of the Closing Date, duly signed (in the case of Proler
by its Managers), stating that such representations and warranties are true and
correct and that all such obligations have been performed and complied with.
6.2 NO MATERIAL ADVERSE CHANGE OR DESTRUCTION OF PROPERTY. Between the
date hereof and the Closing Date, (i) there shall have been no Material Adverse
Change or Effect to Proler, (ii) there shall have been no adverse federal,
state or local legislative or regulatory change affecting in any material
respect the services, products or business of Proler, and (iii) none of the
properties and assets of Proler shall have been damaged by fire, flood,
casualty, act of God or the public enemy or other cause (regardless of
insurance coverage for such damage) which damages
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may have a Material Adverse Change or Effect thereon, and there shall
have been delivered to MTLM a certificate to that effect, dated the Closing
Date and signed by or on behalf of Proler.
6.3 PROLER CERTIFICATE. The Members shall have delivered to MTLM (i)
copies of the Articles of Formation, and Operating Agreement, of Proler as in
effect immediately prior to the Closing Date and (ii) certificates of good
standing of Proler issued by the State of Delaware and each other state in
which Proler is qualified to do business as of a date not more than thirty days
prior to the Closing Date, certified in each case as of the Closing Date by the
Manager as being true and complete.
6.4 OPINION OF COUNSEL. MTLM shall have received an opinion dated as of
the Closing Date from counsel for Proler and the Members, in form and substance
acceptable to MTLM, to the effect that:
(a) Proler is validly existing and in good standing under the laws
of its state of formation, and is authorized to carry on the business now
conducted by it and to own or lease the properties now owned or leased by
it;
(b) Proler has obtained all necessary authorizations and consents of
its governing board to effect the transactions contemplated in this
Agreement;
(c) based solely on an inspection of the Operating Agreement of
Proler, all issued and outstanding Membership Interests of Proler are
owned as set forth on Schedule 3.5 hereto;
(d) except as set forth in Schedule 3.12, such counsel has no actual
knowledge (without any independent investigation of any sort) of any
litigation, proceeding or investigation pending or threatened which would
result in any material adverse change in the properties or business or in
the condition of Proler, or which questions the validity of this
Agreement;
(e) each of this Agreement and the Assignment of Membership
Interests is a valid and binding obligation of each of Proler and the
Members, as the case may be, and enforceable against each of them in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally; and
(f) Proler possesses all Permits for its business and operations,
including the operation of the Owned Properties and Leased Premises. All
Permits are valid and in full force and effect, Proler is in material
compliance with the requirements thereof, and no proceeding is pending
or, to such counsel's actual knowledge, threatened to revoke or amend any
of them. None of the Permits is or will be impaired or in any way
affected by the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
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6.5 CONSENTS. MTLM shall have received written consents to the
transactions contemplated hereby and waivers of rights to terminate or modify
any material rights or obligations of Proler from any Person from whom such
consent or waiver is required under any Designated Contract or instrument as of
a date not more than ten days prior to the Closing Date, or who, as a result of
the transactions contemplated hereby, would have such rights to terminate or
modify such Contracts or instruments, either by the terms thereof or as a
matter of law.
6.6 GOVERNMENTAL APPROVALS. All consents, authorizations and approvals
from, and all declarations, filings and registrations with any governmental
authority required to consummate the transactions contemplated by this
Agreement, including those set forth on Schedule 3.6, shall have been obtained
or made without the imposition of any material conditions, and all applicable
waiting periods, if any, under the HSR Act shall have expired or terminated.
6.7 NO ADVERSE LITIGATION. There shall not be pending or threatened any
action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit, invalidate or collect damages arising out of
the Agreement or any other transaction contemplated hereby, and which, in the
judgment of MTLM, makes it inadvisable to proceed with the Agreement and other
transactions contemplated hereby.
6.8 OTHER CLOSING DELIVERIES. At Closing, MTLM shall have received:
(a) a current title policy insuring title to the real property owned
or leased by each of Proler as set forth on Schedules 3.14 (a) which
shows no Liens other than Liens disclosed on such Schedules 3.14(a),
together with appropriate surveys and estoppel letters from the lessors
of any leased real property;
(b) each Other Agreement executed by Proler and/or the Members, as
the case may be, who is a party thereto;
(c) the books and records of Proler; and
(d) all other previously undelivered agreements, certificates,
documents, instruments or writings required to be delivered by Proler
and/or the Members at or prior to the Closing pursuant to this Agreement
or otherwise in connection herewith.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS
OF PROLER AND THE MEMBERS
The obligations of Proler and each of the Members shall be subject to the
fulfillment at or prior to the Closing Date of the following conditions, any or
all of which may be waived in whole or in part by Proler and the Members:
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7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of MTLM contained in this
Agreement shall be true and correct in all material respects at and as of the
Closing Date except (i) for changes specifically permitted by or disclosed
pursuant to this Agreement, and (ii) that those representations and warranties
which address matters only as of a particular date shall remain true and
correct as of such date. MTLM shall have performed and complied in all
material respects with all of its obligations required by this Agreement to be
performed or complied in all material respects with at or prior to the Closing
Date. MTLM shall have delivered to the Member's a certificate, dated as of the
Closing Date, and signed by an executive officer, certifying that such
representations and warranties are true and correct in all material respects
and that all such obligations have been performed and complied with.
7.2 MTLM PURCHASE PRICE. At the Closing, MTLM shall have delivered to
the Members the purchase price described in Section 1.2 hereof.
7.3 NO ADVERSE LITIGATION. There shall not be pending or threatened any
action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit, invalidate or collect damages arising out of
the Agreement or any of the transactions contemplated hereby, and which in the
judgment of the Members makes it inadvisable to proceed with the Agreement or
any other transaction contemplated hereby.
7.4 OPINION OF COUNSEL. The Members shall have received an opinion
dated as of the Closing Date from counsel for MTLM, in form and substance
acceptable to the Members, to the effect that:
(a) MTLM is a corporation validly existing and in good standing
under the laws of the State of Delaware and is authorized to carry on the
business now conducted by it and to own or lease the properties now owned
or leased by it;
(b) MTLM has obtained all necessary authorizations and consents of
its Board of Directors to effect the transactions contemplated in this
Agreement;
(c) such counsel has no actual knowledge (without any independent
investigation of any sort) of any litigation, proceeding or investigation
pending or threatened which would result in any material adverse change
in the properties or business or in the condition of MTLM, or which
questions the validity of this Agreement; and
(d) such counsel has no actual knowledge (without any independent
investigation of any sort) that any event has occurred or state of facts
exists which would constitute a breach of any of the representations or
warranties made by MTLM pursuant to Article II of this Agreement.
(e) each of this Agreement and the Purchase Notes is a valid and
binding obligation of MTLM, and enforceable against it in accordance with
its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally.
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7.5 OTHER CLOSING DELIVERIES. At Closing, Proler and the Members shall
have received each Other Agreement to which MTLM is a party, duly executed by
MTLM.
7.6 NO MATERIAL ADVERSE CHANGE OR EFFECT. MTLM shall not have suffered
any Material Adverse Change or Effect .
ARTICLE VIII
INDEMNIFICATION
8.1 AGREEMENT BY THE MEMBERS TO INDEMNIFY. The Members agree to
severally indemnify, defend and hold MTLM harmless (with each Member's
liability to MTLM being equal to such Member's proportionate holdings of the
Purchased Securities, of any Indemnifiable Damages, subject to the limitations
set forth in Section 8.1(e) below) from and against the aggregate of all
Indemnifiable Damages (as defined below).
(a) For purposes of this Agreement, "Indemnifiable Damages" means,
without duplication, the aggregate of all actual expenses, losses, costs,
deficiencies, liabilities and damages (including, without limitation,
related counsel and paralegal fees and expenses) incurred or suffered by
MTLM, on a pre-tax consolidated basis to the extent (i) resulting from
any breach or inaccuracy of a representation or warranty made by Proler
or the Members in or pursuant to this Agreement, (ii) resulting from any
breach of the covenants or agreements made by Proler or the Members
pursuant to this Agreement, (iii) resulting from any inaccuracy in any
certificate or environmental report delivered by Proler or any Members
pursuant to this Agreement, or (iv) resulting from, arising out of,
relating to, in the nature of, or caused by any liability or Proler (x)
for any Taxes of Proler with respect to any tax year or portion thereof
ending on or before the Closing Date to the extent such Taxes are not
reflected in the reserve for tax liability (rather than any reserve for
deferred Taxes established to reflect timing differences between book and
tax income) shown on the face of the Current Balance Sheet (rather than
any notes thereto), and (y) for the unpaid Taxes of any Person (other
than Proler) as a transferee or successor, by contract, or otherwise.
(b) Without limiting the generality of the foregoing, with respect
to the measurement of Indemnifiable Damages, MTLM shall have the right to
be put in the same pre-tax consolidated financial position as MTLM would
have been in had each of the representations and warranties of the
Members hereunder been true and correct and had the covenants and
agreements of Proler and the Members hereunder been performed in full.
(c) Each of the representations and warranties made by the Members in
this Agreement or pursuant hereto shall survive for a period of 12 months
after the Closing Date except as follows: (i) the representations and
warranties of the Members contained in Section 3.19, to the extent
relating to tax attributes or liabilities with respect to Taxes of
Proler, shall expire at the time the period of limitations (including any
extensions thereof
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pursuant to the delivery of waivers (agreed to by the Members) of the
applicable period of limitations) expires for the assessment by the
taxing authority of additional Taxes with respect to which the
representations and warranties relate; (ii) the representations and
warranties of the Members contained in Sections 3.13 and 3.18 shall
survive for a period of 24 months after the Closing Date; and (iii) the
representations and warranties of the Members contained in Sections 3.1,
3.2, 3.3, 3.4, and 3.5 shall not expire, but shall continue indefinitely.
No claim for the recovery of Indemnifiable Damages may be asserted by
MTLM against the Members after such representations and warranties shall
thus expire, provided, however, that claims for Indemnifiable Damages
first asserted within the applicable period shall not thereafter be
barred. Notwithstanding any knowledge of facts determined or
determinable by any party by investigation, each party shall have the
right to fully rely on the representations, warranties, covenants and
agreements of the other parties contained in this Agreement or in any
other documents or papers delivered in connection herewith. Each
representation, warranty, covenant and agreement of the parties contained
in this Agreement is independent of each other representation, warranty,
covenant and agreement.
(d) If MTLM believes it is entitled to a claim for any Indemnifiable
Damages hereunder, MTLM shall promptly give written notice to the Members
of such claim and the amount or the estimated amount of such claim, and
the basis for such claim. If the Members do not pay the amount of the
claim for Indemnifiable Damages to MTLM within 10 days, then MTLM may
exercise its respective rights under Section 8.4.
(e) Notwithstanding anything to the contrary contained in this
Section 8.1, the Members' liability for Indemnifiable Damages shall be
limited as follows:
(i) MTLM shall have no claim for Indemnifiable Damages unless
and until all Indemnifiable Damages incurred by MTLM exceed an
aggregate of $50,000, in which event the Members shall be liable
for only such Indemnifiable Damages in excess of $50,000; provided,
however, that the $50,000 deductible provided above shall not be
applicable for any Indemnifiable Damages relating to Taxes; and
(ii) the total amount of Indemnifiable Damages for which the
Members shall be liable to MTLM shall not exceed the principal and
interest due on the Purchase Notes.
(f) The remedies set forth in this Section 8.1 shall be the
exclusive remedies of MTLM under this Agreement.
8.2 AGREEMENT BY MTLM TO INDEMNIFY. MTLM agrees to indemnify, defend
and hold the Members harmless from and against the aggregate of all
Indemnifiable Damages (as defined below).
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(a) For purposes of this Agreement, "Members Indemnifiable Damages"
means, without duplication, the aggregate of all expenses, losses, costs,
deficiencies, liabilities and damages (including, without limitation,
reasonable related counsel and paralegal fees and expenses) incurred or
suffered by the Members, on a pre-tax consolidated basis, to the extent
(i) resulting from any breach of a representation or warranty made by
MTLM in or pursuant to this Agreement, (ii) resulting from any breach of
the covenants or agreements made by MTLM in or pursuant to this
Agreement, or (iii) resulting from any inaccuracy in any certificate
delivered by MTLM pursuant to this Agreement.
(b) Without limiting the generality of the foregoing, with respect
to the measurement of Members Indemnifiable Damages, the Members have the
right to be put in the same pre-tax consolidated financial position as
he, she or it would have been in had each of the representations and
warranties of MTLM hereunder been true and correct and had the covenants
and agreements of MTLM hereunder been performed in full.
(c) Each of the representations and warranties made by MTLM in this
Agreement or pursuant hereto shall survive for a period of one year after
the Closing Date, notwithstanding any investigation at any time made by
or on behalf of the Members, and upon expiration of such one year period,
such representations and warranties shall expire, except for the
representations contained in Sections 2.1, 2.2, 2.3 and 2.4 shall not
expire, but shall continue indefinitely. No claim for the recovery of
Members Indemnifiable Damages may be asserted by the Members against MTLM
after such representations and warranties shall thus expire, provided,
however, that claims for Indemnifiable Damages first asserted within the
applicable period shall not thereafter be barred. Notwithstanding any
knowledge of facts determined or determinable by any party by
investigation, each party shall have the right to fully rely on the
representations, warranties, covenants and agreements of the other
parties contained in this Agreement or in any other documents or papers
delivered in connection herewith. Each representation, warranty,
covenant and agreement of the parties contained in this Agreement is
independent of each other representation, warranty, covenant and
agreement.
(d) In the event that the Members believe they are entitled to a
claim for any Indemnifiable Damages hereunder, the Members shall promptly
give written notice to MTLM of such claim and the amount or the estimated
amount of such claim, and the basis for such claim.
(e) Notwithstanding anything to the contrary contained in this
Section 8.2, the Members shall have no claim for Indemnifiable Damages
unless and until all Indemnifiable Damages incurred by the Members shall
exceed an aggregate of $50,000, in which event MTLM shall be liable for
only such Indemnifiable Damages in excess of $50,000.
(f) The remedies set forth in this Section 8.2 shall be the
exclusive remedies of the Members under this Agreement.
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8.3 CONDITIONS OF INDEMNIFICATION. The obligations and liabilities of
the Members and MTLM hereunder with respect to their respective indemnities
pursuant to this Article VIII resulting from any claim or other assertion of
liabilities by third parties (hereinafter called collectively "Claims"), shall
be subject to the following terms and conditions:
(a) the party seeking indemnification (the "Indemnified Party") must
give the other party or parties, as the case may be (the "Indemnifying
Party"), notice of any such Claim 10 business days after the Indemnified
Party receives notice thereof;
(b) the Indemnifying Party shall have the right to undertake, by
counsel or other representatives of its own choosing, the defense of such
Claim; provided, however, if a Claim is made against MTLM, then MTLM
shall have the right to control the defense of the Claim;
(c) if the Indemnifying Party shall elect not to undertake such
defense, or within a reasonable time after notice of any such Claim from
the Indemnified Party shall fail to defend, the Indemnified Party (upon
further written notice to the Indemnifying Party) shall have the right to
undertake the defense, compromise or settlement of such Claim, by counsel
or other representatives of its own choosing, on behalf of and for the
account and risk of the Indemnifying Party (subject to the right of the
Indemnifying Party to assume defense of such Claim at any time prior to
settlement, compromise or final determination thereof);
(d) anything in this Section 8.3 to the contrary notwithstanding,
(A) the Indemnified Party shall have the right, at its own cost and
expense, to have its own counsel to protect its own interests and
participate in the defense, compromise or settlement of the Claim, (B)
the Indemnifying Party shall not, without the Indemnified Party's written
consent, settle or compromise any Claim or consent to entry of any
judgement which does not include as an unconditional term thereof the
giving by the claimant or the plaintiff to the Indemnified Party of a
release from all liability in respect of such Claim, and (C) the
Indemnified Party, by counsel or other representatives of its own
choosing and at its sole cost and expense, shall have the right to
consult with the Indemnifying Party and its counsel or other
representatives concerning such Claim, and the Indemnifying Party and the
Indemnified Party and their respective counsel shall cooperate with
respect to such Claim.
8.4 RIGHTS OF SETOFF TO SECURE THE MEMBERS' INDEMNIFICATION OBLIGATION.
As security for the agreement by the Members to indemnify and hold MTLM
harmless as described in Section 8.1, at the Closing, MTLM may set off against
the Purchase Notes any Indemnifiable Damages for which the Members may be
responsible pursuant to this Agreement), subject, however, to the following
terms and conditions:
(a) MTLM shall give written notice to the Members of any claim for
Indemnifiable Damages hereunder, which notice shall set forth (i) the
amount of Indemnifiable Damages or other loss, damage, cost or expense
which MTLM claims to have sustained by reason thereof, and (ii) the basis
of such claim;
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(b) Such set off shall be effected on the later to occur of the
expiration of 10 business days from the date of such notice (the "Notice
of Contest Period") or, if such claim is contested, the date the dispute
is resolved, and such set off shall be charged proportionally against the
Purchase Notes;
(c) If, prior to the expiration of the Notice of Contest Period, the
Members shall notify MTLM in writing of an intention to dispute the claim
and if such dispute is not resolved within 30 days after expiration of
such period (the "Resolution Period"), then such dispute shall be
resolved by a committee of three arbitrators (one appointed by the
Members, one appointed by MTLM and one appointed by the two arbitrators
so appointed), which shall be appointed within 30 days after the
expiration of the Resolution Period. The arbitrators shall abide by the
rules of the American Arbitration Association and their decision shall be
made within 45 days of being appointed and shall be final and binding on
all parties;
8.5 TERMINATION OF AGREEMENT OF MEMBERS TO INDEMNIFY. Notwithstanding
the provisions of Section 8.1, the obligation of the Members to indemnify MTLM
shall terminate if at any time after the Closing Date T. Xxxxxxxx Xxxxxxxx for
any reason is not the Chairman of the Board of MTLM or Xxxxxx Xxxxxx for any
reason is not the Chief Executive Officer of MTLM.
ARTICLE IX
DEFINITIONS
9.1 DEFINED TERMS. As used herein, the following terms shall have the
following meanings:
"Aboveground Storage Tanks" defined in Section 3.13 (h).
"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange Act,
as in effect on the date hereof.
"Asbestos" or "Asbestos-containing material" defined in Section 3.13
(j).
"Assets" defined in Section 3.15 (a).
"CERCLA" defined in Section 3.13 (e).
"Claims" defined in Section 8.3.
"Closing" defined in Section 1.3.
"Code" defined in Section 3.18 (b).
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"Common Stock" means shares of MTLM's common stock, $.01 par value.
"Contract" means any indenture, lease, sublease, license,
loan agreement, mortgage, note, indenture, restriction, will,
trust, commitment, obligation or other contract, agreement or
instrument, whether written or oral.
"Current Balance Sheet" defined in Section 3.9.
"Designated Contracts" defined in Section 3.25.
"Discharge" defined in Section 3.13 (f).
"Employee Benefit Plans" defined in Section 3.18 (a).
"Environmental Assessment" defined in Section 5.9.
"Environmental, Health and Safety Laws" defined in Section 3.13 (k).
"EPCRA" defined in Section 3.13 (e).
"ERISA" defined in Section 3.18 (a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FIFRA" defined in Section 3.13 (e).
"Financial Statements" defined in Section 3.9.
"Fixed Assets" defined in Section 3.15 (b).
"GAAP" means generally accepted accounting principles in
effect in the United States of America for the period indicated.
"Governmental Authority" means any nation or government, any
state, regional, local or other political subdivision thereof, and
any entity or official exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining
to government.
"Hazardous Substances" defined in Section 3.13 (e).
"Immigration Act" defined in Section 3.16 (c).
"Indemnifiable Damages" defined in Section 8.1 (a).
"Indemnified Party" defined in Section 8.3 (a).
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"Insurance Policies" defined in Section 3.20.
"Intellectual Property" defined in Section 3.24.
"Knowledge" means (a) in the case of an individual, actual,
conscious knowledge of information by such individual or (b) in the case
of a corporation, limited liability company or similar entity, actual,
conscious knowledge by a current officer or key employee thereof who
devotes substantive attention to matters of such nature in the ordinary
course of his employment with such corporation, limited liability company
or other entity.
"Leased Premises" defined in Section 3.14 (b).
"Leases" defined in Section 3.14 (b).
"Licenses" defined in Section 3.13 (b).
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, but not
limited to, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform
Commercial Code or comparable law or any jurisdiction in
connection with such mortgage, pledge, security interest,
encumbrance, lien or charge).
"Material Adverse Change (or Effect)" means a change (or
effect), in the condition (financial or otherwise), properties,
assets, liabilities, rights, obligations, operations, business or
prospects which change (or effect) individually or in the
aggregate, is materially adverse to such condition, properties,
assets, liabilities, rights, obligations, operations, business or
prospects.
"Material Customers" defined in Section 3.26.
"Members" defined in the introductory paragraph of this Agreement.
"Members Indemnifiable Damages" defined in Section 8.2(a).
"MPPA Plan" defined in Section 3.18 (d).
"Other Agreements" defined in Section 5.12.
"OSHA" defined in Section 3.13 (e).
"Owned Properties" defined in Section 3.14 (a).
"Permits" defined in Section 3.22.
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"Person" means an individual, partnership, corporation,
business trust, joint stock company, estate, trust, unincorporated
association, joint venture, Governmental Authority or other
entity, of whatever nature.
"PBGC" defined in Section 3.18 (f).
"RCRA" defined in Section 3.13 (e).
"Receivables" defined in Section 3.21.
"Register", "registered" and "registration" refer to a
registration of the offering and sale of securities effected by
preparing and filing a registration statement in compliance with
the Securities Act and the declaration or ordering of the
effectiveness of such registration statement.
"Release" defined in Section 3.13 (f).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Tax Return" means any federal, state or local tax return,
filing or information statement required to be filed in connection
with or with respect to any Taxes; and
"Taxes" means all taxes, fees or other assessments,
including, but not limited to, income, excise, property, sales,
franchise, intangible, withholding, social security and
unemployment taxes imposed by any federal, state, local or foreign
governmental agency, and any interest or penalties related
thereto.
"Underground Storage Tanks" defined in Section 3.13 (h).
"Waste" defined in Section 3.13 (e).
9.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificates, reports or other documents made
or delivered pursuant hereto or thereto, unless the context otherwise
requires.
(b) Terms defined in the singular shall have a comparable meaning
when used in the plural, and vice versa.
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(c) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the
neuter and feminine, where the context so permits.
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date:
(a) at any time prior to the Closing Date, by mutual written consent
of MTLM and a majority of the Members at any time prior to the Closing;
(b) at any time prior to the Closing Date, by MTLM in the event of a
material breach by Proler or the Members of any provision of this
Agreement;
(c) at any time prior to the Closing Date, by a majority of the
Members in the event of a material breach by MTLM of any provision of
this Agreement;
(d) at any time prior to the Closing Date, by any of MTLM or the
Members if the Closing shall not have occurred by November 1, 1997;
provided, however, that neither MTLM, nor the Members shall be entitled
to terminate this Agreement pursuant to this Section 10.1(d), if such
party's knowing or willful breach of this Agreement has prevented the
consummation of the transactions contemplated hereby.
10.2 EFFECT OF TERMINATION. Except as provided in Article VI, in the
event of termination of this Agreement pursuant to Section 10.1, this Agreement
shall forthwith become void; provided, however, that nothing herein shall
relieve any party from liability for the willful breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
ARTICLE XI
GENERAL PROVISIONS
11.1 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage prepaid), guaranteed
overnight delivery, or facsimile transmission if such transmission is confirmed
by delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery, to the following addresses and telecopy numbers
(or to such other addresses or telecopy numbers which such party shall
designate in writing to the other party):
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(a) IF TO MTLM TO:
Metal Management, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
WITH A COPY TO:
Xxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Xx.
Telecopy No.: (000) 000-0000
(b) IF TO PROLER OR THE MEMBERS TO:
Proler Steelworks L.L.C.
X.X. Xxx 00000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
WITH A COPY TO:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
1900 Pennzoil Place - South Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
11.2 ENTIRE AGREEMENT. This Agreement (including the Exhibits and
Schedules attached hereto), the other documents delivered at the Closing
pursuant hereto, and the Confidentiality Agreement between the parties dated
March 18, 1997, as amended, contains the entire understanding of the parties in
respect of its subject matter and supersedes all prior agreements and
understandings (oral or written) between or among the parties with respect to
such subject matter. The Exhibits and Schedules constitute a part hereof as
though set forth in full above.
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11.3 EXPENSES. Except as otherwise provided herein, MTLM shall pay its
own fees and expenses, including its own counsel fees, incurred in connection
with this Agreement or any transaction contemplated hereby, and the Members
shall pay all reasonable fees and expenses, including counsel fees for one law
firm to jointly represent Proler and the Members, incurred by Proler and the
Members in connection with this Agreement or any transaction contemplated
hereby; provided, however, all filing fees in connection with the HSR Act shall
be paid by MTLM.
11.4 AMENDMENT; WAIVER. This Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
all parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under this Agreement shall operate as a waiver, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude the exercise of any other right, power or privilege. No waiver of any
breach of any provision shall be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision, nor shall any waiver be
implied from any course of dealing between the parties. No extension of time
for performance of any obligations or other acts hereunder or under any other
agreement shall be deemed to be an extension of the time for performance of any
other obligations or any other acts. Except as otherwise provided herein, the
rights and remedies of the parties under this Agreement are in addition to all
other rights and remedies, at law or equity, that they may have against each
other.
11.5 BINDING EFFECT; ASSIGNMENT. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall
be construed to give any other person any legal or equitable rights hereunder.
Except as expressly provided herein, the rights and obligations of this
Agreement may not be assigned by any of the Members without the prior written
consent of MTLM or by MTLM without the prior written consent of a majority of
the Members.
11.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one and the same instrument.
11.7 INTERPRETATION. When a reference is made in this Agreement to an
article, section, paragraph, clause, schedule or exhibit, such reference shall
be deemed to be to this Agreement unless otherwise indicated. The headings
contained herein and on the schedules are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement or
the schedules. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." Time shall be of the essence in this Agreement.
11.8 GOVERNING LAW; INTERPRETATION. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the State of Texas
applicable to contracts executed and to be wholly performed within such State.
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11.9 ARM'S LENGTH NEGOTIATIONS. Each party herein expressly represents
and warrants to all other parties hereto that (a) before executing this
Agreement, said party has fully informed itself of the terms, contents,
conditions and effects of this Agreement; (b) said party has relied solely and
completely upon its own judgment in executing this Agreement; (c) said party
has had the opportunity to seek and has obtained the advice of counsel before
executing this Agreement; (d) said party has acted voluntarily and of its own
free will in executing this Agreement; (e) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and (f) this
Agreement is the result of arm's length negotiations conducted by and among the
parties and their respective counsel.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
METAL MANAGEMENT, INC.
By: _________________________
Xxxxxx X. Xxxxxx
President
PROLER STEELWORKS L.L.C.
By: _________________________
Xxxxxxx X. Xxxxxx
Manager
_____________________________
Xxxxxxx X. Xxxxxx
_____________________________
Xxxxxx X. Xxxxxx
_____________________________
Xxxxx X. Xxxxxxx
_____________________________
Xxxx X. Xxxxxx
_____________________________
Xxxxxx X. Xxxxxxx
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INDEX OF SCHEDULES
Schedule 3.1 Jurisdictions in which Qualified to do Business
Schedule 3.4 Capitalization
Schedule 3.5 Members of Proler
Schedule 3.6 Violations; Conflicts; etc.
Schedule 3.8 Subsidiaries
Schedule 3.10 Changes since the Current Balance Sheet Date
Schedule 3.11 Liabilities
Schedule 3.12 Litigation
Schedule 3.13 Environmental Matters
Schedule 3.14(a) Owned Real Estate
Schedule 3.14(b) Leases
Schedule 3.15 Title to and Condition of Assets
Schedule 3.16 Compliance with Laws
Schedule 3.17 Labor and Employment Matters
Schedule 3.18 Employee Benefit Plans
Schedule 3.20 Insurance
Schedule 3.22 Licenses and Permits
Schedule 3.25 Contracts
Schedule 3.31(a) Asset Update Schedule
Schedule 4.1 Conduct of Business Pending Closing
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INDEX OF EXHIBITS
Exhibit A Form of Purchase Notes
Exhibit B Purchase Price Allocation Schedule
