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ASSET PURCHASE AGREEMENT
BY AND AMONG
STAMFORD FHI ACQUISITION CORP.,
FIBERITE, INC.
AND
HEXCEL CORPORATION
DATED AS OF APRIL 21, 1997
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TABLE OF CONTENTS
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PAGE
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ARTICLE I
PURCHASE AND SALE OF
ASSETS AND ASSUMPTION OF LIABILITIES 2
Section 1.1 Purchase and Sale....................................... 2
Section 1.2 Consideration........................................... 10
Section 1.3 Closing................................................. 11
Section 1.4 Deliveries by Fiberite.................................. 11
Section 1.5 Deliveries by Buyer..................................... 12
ARTICLE II-A
REPRESENTATIONS AND WARRANTIES OF
STAMFORD 12
Section 2A.1 Organization............................................ 12
Section 2A.2 Authority............................................... 13
Section 2A.3 No Violations; Consents and Approvals................... 13
ARTICLE II-B
REPRESENTATIONS AND WARRANTIES OF
FIBERITE 14
Section 2B.1 Organization............................................ 14
Section 2B.2 Authority............................................... 15
Section 2B.3 No Violations; Consents and Approvals................... 15
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER 16
Section 3.1 Organization............................................ 16
Section 3.2 Authority............................................... 16
Section 3.3 No Violations; Consents and Approvals................... 16
ARTICLE IV
COVENANTS 17
Section 4.1 Conduct of Business..................................... 17
Section 4.2 Access to Information................................... 19
Section 4.3 Commercially Reasonable Efforts; Other Actions.......... 19
Section 4.4 Public Announcements.................................... 20
Section 4.5 Notification of Certain Matters......................... 20
Section 4.6 Expenses................................................ 20
Section 4.7 Affected Employees...................................... 20
Section 4.8 Insurance............................................... 22
Section 4.9 Sums Received in Respect of Acquired Businesses and
Excluded Businesses..................................... 23
Section 4.10 Name.................................................... 23
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Section 4.11 Books and Records....................................... 23
Section 4.12 Allocation of the Purchase Price........................ 24
Section 4.13 Agreements Regarding Intellectual Property.............. 24
Section 4.14 Assignment of Contracts; Nonassignability............... 25
Section 4.15 Assignment of Certain Indemnification Rights............ 26
Section 4.16 Continuation of Certain Plans........................... 26
Section 4.17 Exon-Xxxxxx............................................. 27
Section 4.18 Transitional Services................................... 27
Section 4.19 Supply Agreement........................................ 27
Section 4.20 Tax Cooperation......................................... 27
Section 4.21 Directors' and Officers' Insurance...................... 28
Section 4.22 Pre-Closing Adjustment.................................. 29
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF BUYER 29
Section 5.1 Consents and Approvals.................................. 29
Section 5.2 Certain Proceedings..................................... 29
Section 5.3 Financing............................................... 29
Section 5.4 Stock Purchase Agreement................................ 29
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF STAMFORD AND FIBERITE 30
Section 6.1 Consents and Approvals.................................. 30
Section 6.2 Certain Proceedings..................................... 30
ARTICLE VII
TERMINATION AND ABANDONMENT 30
Section 7.1 Termination............................................. 30
Section 7.2 Termination by Buyer.................................... 31
Section 7.3 Termination by Stamford................................. 31
Section 7.4 Procedure for Termination............................... 32
Section 7.5 Effect of Termination and Abandonment................... 32
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION 32
Section 8.1 Survival of Representations and Warranties,
Covenants, etc. ........................................ 32
Section 8.2 Fiberite's and Stamford's Agreements to Indemnify....... 33
Section 8.3 Buyer's Agreement to Indemnify.......................... 33
Section 8.4 Indemnification Based on Net Damage..................... 34
Section 8.5 Third Party Claims...................................... 34
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ARTICLE IX
MISCELLANEOUS 35
Section 9.1 Fees, Expenses and Taxes................................ 35
Section 9.2 Further Assurances...................................... 36
Section 9.3 Notices................................................. 36
Section 9.4 Severability............................................ 38
Section 9.5 Binding Effect; Assignment.............................. 38
Section 9.6 Bulk Sales Law.......................................... 39
Section 9.7 No Third Party Beneficiaries............................ 39
Section 9.8 Interpretation.......................................... 39
Section 9.9 Jurisdiction and Consent to Service..................... 39
Section 9.10 Governing Law........................................... 40
Section 9.11 Entire Agreement........................................ 40
Section 9.12 Amendment, Modification and Waiver...................... 40
Section 9.13 Specific Performance.................................... 40
Section 9.14 Counterparts............................................ 41
Section 9.15 Effective Date.......................................... 41
ARTICLE X
CERTAIN DEFINITIONS 41
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SCHEDULES
Schedule 1.1(a)(xii) Warranties/Indemnification Provisions
Schedule 1.1(a)(xv) Certain Acquired Intellectual Property
Schedule 1.1(a)(xvii) Certain Acquired Assets
Schedule 1.1(b)(ii) Deeds for Certain Properties
Schedule 1.1(c) Certain Intellectual Property
Schedule 1.1(c)(iv) Certain Excluded Intellectual Property
Schedule 1.1(c)(vi) Certain Excluded Assets
Schedule 1.1(e)(xv) Certain Excluded Employment Agreements
Schedule 1.4(c) Material Contracts Requiring Consents
Schedule 2B.3(b)(iii) Certain Consents, Orders and Filings of Fiberite
Schedule 3.3(b)(iii) Certain Consents, Orders and Filings of Buyer
EXHIBITS
EXHIBIT A Stock Purchase and Sale Agreement
EXHIBIT B Xxxx of Sale and Assignment
EXHIBIT C Undertaking
EXHIBIT D FIRPTA Certificate
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of April
21, 1997, is by and among Fiberite, Inc., a Delaware corporation
("Fiberite"), Stamford FHI Acquisition Corp., a Delaware corporation
("Stamford"), and Hexcel Corporation, a Delaware corporation ("Buyer",
together with Fiberite and Stamford, the "Parties").
RECITALS
A. Stamford has entered into a Stock Purchase and Sale Agreement (the
"Stock Purchase Agreement"), dated as of April 20, 1997, by and among, Stamford,
Fiberite Holdings, Inc., a Delaware corporation and as of the Closing Date (as
defined in Section 1.3 hereof) the former parent of Fiberite ("Fiberite
Holdings"), and the Selling Stockholders of Fiberite Holdings providing for,
among other things, the purchase and sale of all of the outstanding shares of
Common Stock of Fiberite Holdings and which is attached hereto as Exhibit A.
B. Upon the closing of the transactions contemplated by the Stock
Purchase Agreement, Fiberite desires to sell to Buyer, and Buyer desires to
purchase from Fiberite, certain assets and operations of Fiberite as more fully
described herein, upon the terms and subject to the conditions set forth herein.
Now, therefore, in consideration of the mutual agreements herein and
in reliance upon the representations and warranties herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and intending to be legally bound hereby, the Parties hereby
agree as follows:
ARTICLE I
PURCHASE AND SALE OF
ASSETS AND ASSUMPTION OF LIABILITIES
Section 1.1 PURCHASE AND SALE.
(a) Subject to the terms and conditions of this Agreement, at
the Closing, Fiberite will sell,
convey, assign, transfer and deliver to Buyer, and Buyer will purchase,
acquire and accept from Fiberite, all of its rights, title and interests in
and to all properties, contracts and other assets (of every kind, nature,
character and description, whether real, personal or mixed, whether tangible
or intangible, whether accrued, contingent or otherwise and wherever
situated), goodwill and business as a going concern of Fiberite other than
the Excluded Assets (as defined in Section 1.1(c) hereof), including without
limitation, the following assets (collectively, the "Acquired Assets"):
(i) all real property, together with all buildings,
fixtures and improvements erected thereon, owned by Fiberite;
(ii) all leases of real property and all contracts,
commitments or other agreements relating thereto to which Fiberite is
a party or by which Fiberite is bound;
(iii) all computer hardware and software, computer
programs and systems, databases, documentation and resource material
relating thereto, of Fiberite;
(iv) all inventory, wherever located, including raw
materials, work-in-progress, finished goods, supplies and other
inventories which relate to the Acquired Businesses (the "Inventory")
and any rights of Fiberite to the warranties received from suppliers
and any related claims, credits, rights of recovery and setoff with
respect to such Inventory;
(v) all furniture, fixtures, vehicles, spare parts,
tools, supplies, leasehold improvements, plant and equipment and all
other tangible property of Fiberite;
(vi) all rights in, to and under all contracts,
licenses, leases (other than leases for real property), commitments,
purchase orders and other agreements;
(vii) all customer lists of Fiberite;
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(viii) all accounts receivable of Fiberite;
(ix) all Intellectual Property rights and other
proprietary rights of Fiberite and the German subsidiary (as defined
herein) (the "Acquired Intellectual Property");
(x) all permits, licenses, approvals and
authorizations by governmental authorities or third parties which are
transferable by Fiberite;
(xi) all of the books of account and other accounting
records (or copies thereof) of Fiberite;
(xii) all warranties, rights to indemnification or
similar rights, whether arising by contract, operation of law or
otherwise in favor of Fiberite or Fiberite Holdings including, without
limitation, rights to indemnification under the contracts listed on
Schedule 1.1(a)(xii), to the extent related to the Acquired
Businesses, Acquired Assets or Assumed Liabilities (as defined in
Section 1.1(d));
(xiii) all of the capital stock and all rights,
title, and interests in and to all properties, contracts, and other
assets, goodwill and operations of the business as a going concern of,
Fiberite France SARL, a corporation formed under the laws of France
("Fiberite France");
(xiv) subject to Section 4.10, the name "Fiberite" and
all derivatives and extensions thereof and all associated goodwill;
(xv) all Intellectual Property related to or arising
from the research and development projects described on Schedule
1.1(a)(xv);
(xvi) all rights, title and interests in and to all of
the properties, contracts and other assets, goodwill and operations of
the business as a going concern of any
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subsidiary of Fiberite Holdings (other than Fiberite) or Fiberite
organized under a jurisdiction within the United States of America (a
"Domestic Subsidiary"); and
(xvii) the assets of Fiberite listed on Schedule
1.1(a)(xvii).
(b) Such sale, assignment, transfer and delivery of the Acquired
Assets will be effected by delivery by Fiberite to Buyer of (i) a duly executed
xxxx of sale and assignment agreement (the "Xxxx of Sale and Assignment")
substantially in the form set forth as Exhibit B attached hereto, (ii) properly
executed and acknowledged deeds without covenants against grantor's acts for the
properties listed on Schedule 1.1(b)(ii), each in recordable form, effective to
convey fee title to each such property to Buyer in the state in which each such
property is located such that a reputable title insurance company licensed to do
business in the state in which each such property is located would issue a title
insurance policy insuring Buyer's fee title to each such property (the "Deeds"),
and (iii) such other duly executed, good and sufficient instruments of
conveyance, transfer and assignment as shall be necessary to convey to Buyer all
of Fiberite's rights, title and interests in and to the Acquired Assets
(collectively, the "Other Instruments").
(c) Notwithstanding anything contained herein to the contrary,
Fiberite shall not sell, convey, assign, transfer or deliver, or cause to be
sold, conveyed, assigned, transferred or delivered, to Buyer, and Buyer shall
not purchase, acquire or accept from Fiberite, the rights, title and interests
in all of the following properties, contracts and other assets (the "Excluded
Assets"):
(i) all of the capital stock and all rights, title,
and interests in and to all properties, contracts and other assets,
goodwill and business as a going concern of, Fiberite Europe GmbH, a
corporation formed under the laws of Germany (the "German
Subsidiary"), other than (A) Intellectual Property not exclusively
used in the business of the German Subsidiary and (B) the Intellectual
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Property and distribution agreements described on Schedule 1.1(c);
(ii) all of Stamford's and Fiberite's rights, title
and interests in and to all of the properties, contracts and other
assets (of every kind, nature, character and description, whether
real, personal or mixed, whether tangible or intangible, whether
accrued contingent or otherwise and wherever situated) relating
exclusively to the following businesses: (A) the businesses conducted
at the Orange Facility (the "Orange Businesses") (B) the recycling
business, and (C) the Ligustica business (together with the German
Businesses, the "Excluded Businesses"), including all Intellectual
Property exclusively relating thereto other than the Intellectual
Property described on Schedule 1.1(c);
(iii) all capital stock of Domestic Subsidiaries held
by Fiberite, Stamford or any of their subsidiaries;
(iv) all Intellectual Property related to or arising
from the research and development projects described on Schedule
1.1(c)(iv);
(v) cash and cash equivalents of Fiberite;
(vi) the assets of Fiberite listed on Schedule
1.1(c)(vi); and
(vii) the assets of Fiberite located at the Orange
Facility other than those listed on Schedule 1.1(a)(xvii).
(d) On and as of the Closing Date (as defined in Section 1.3),
Buyer shall assume and agree to perform, pay and discharge, all of the following
obligations and liabilities of Fiberite (whether liquidated or unliquidated,
known or unknown, contingent or otherwise) (collectively, the "Assumed
Liabilities"):
(i) the Buyer Allocated Liabilities (as defined in
Section 1.1(f));
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(ii) any and all obligations and liabilities arising
exclusively from the Acquired Businesses or relating exclusively to
the Acquired Assets;
(iii) eighty-one percent (81%) of all post-retirement
liabilities for medical, dental and life insurance programs (other
than multi-employer programs and plans), for U.S. employees or former
U.S. employees of Fiberite Holdings and its subsidiaries who retire
(or have retired) before the Closing Date;
(iv) eighty-five and six tenths percent (85.6%) of any
and all liabilities and obligations, direct or indirect, fixed or
contingent, for federal income taxes of Fiberite or any of its
subsidiaries or any member of any affiliated group (within the meaning
of Section 1504 of the Code) or any similar state, local or foreign
group of which such entities are or have been a member, for taxable
periods, or portions thereof ending prior to the closing of the Stock
Purchase Agreement;
(v) without limiting Section 1.1(d)(ii), all
environmental liabilities and obligations arising from or relating to
the following sites: (A) American Chemical Services, Griffith,
Indiana; (B) Artel Chemical, Nitro, West Virginia; (C) P.C.B.
Treatment, Inc., Kansas City, Kansas and Kansas City, Missouri; (D) an
unspecified local municipal landfill, Winona, Minnesota; and (E) any
property formerly owned or operated by Fiberite which relates
exclusively to the Acquired Businesses; and
(vi) any liability with respect to the Affected
Employees arising from the notice to be given pursuant to Section 4.7
hereof, whether or not the transactions contemplated by this Agreement
are consummated.
(e) On and as of the Closing Date Buyer shall not assume or
agree to perform, pay or discharge and Fiberite shall retain all of the
following obligations and liabilities of Fiberite (whether liquidated or
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unliquidated, known or unknown, contingent or otherwise) (collectively, the
"Excluded Liabilities"):
(i) the Fiberite Allocated Liabilities (as defined in
Section 1.1(f);
(ii) any and all obligations and liabilities arising
exclusively from the Excluded Businesses or relating exclusively to
the Excluded Assets;
(iii) (A) fourteen and four tenths percent (14.4%) of
any and all liabilities and obligations, direct or indirect, fixed or
contingent, for federal income taxes of Stamford, Fiberite or any of
their subsidiaries or any member of any affiliated group (within the
meaning of Section 1504 of the Code) or any similar state, local or
foreign group of which any of such entities is or has been a member on
or prior to the date hereof, for taxable periods (or portions thereof)
ending on or prior to the closing of the Stock Purchase Agreement and
100% of such federal income taxes or any state, local or foreign
income taxes for any taxable period (or portion thereof) beginning on
or after the closing of the Stock Purchase Agreement; and (B)
notwithstanding anything in this Agreement to the contrary, any and
all liabilities and obligations, direct or indirect, fixed or
contingent, for federal, state, local or foreign income taxes due as a
result of any of the transactions contemplated by this Agreement or
any transactions occurring on the date of the closing of the Stock
Purchase Agreement;
(iv) all obligations remaining for the payment of the
purchase price for the Ligustica business and for the assets acquired
in connection therewith;
(v) severance for employees who participate in the ICI
Composites Severance Plan (or, if applicable, its successor plan, the
Fiberite, Inc. Severance Plan) who are not Affected Employees (as
defined in Section 4.7);
(vi) certain collective bargaining agreements,
including the Agreement
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Between ICI Fiberite, A Business Unit of ICI Composites, Inc. and General
Drivers, Helpers, Warehousemen, and Inside Employees Local Union No. 160
affiliated with the International Brotherhood of Teamsters, effective
January 1, 1993 to December 31, 1997; and Agreement Between ICI Fiberite,
A Business Unit of ICI Composites, Inc. and United Steelworkers of
America, AFL-CIO, Local No. 13421, effective March 28, 1993 to March 29,
1998;
(vii) the settlement agreement between Fiberite and
Xxxx Xxxxxxx;
(viii) Nineteen percent (19%) of all post-retirement
liabilities for medical, dental and life insurance programs (other
than multi-employer programs and plans), for U.S. employees or former
U.S. employees of Fiberite Holdings and its subsidiaries who retire
(or have retired) before the Closing Date;
(ix) all outstanding indebtedness for borrowed money
of Fiberite (together with all interest accrued thereon);
(x) all Expenses (as defined in the Stock Purchase
Agreement) to the extent not paid prior to the Closing;
(xi) the 11.3% Zero Coupon Subordinated Notes of
Fiberite Holdings due in 2002 and 2003;
(xii) subject to Section 4.16, all liabilities and
obligations with respect to the Fiberite, Inc. Pension Plan, Fiberite,
Inc. Service Related Pension Plan, Fiberite, Inc. 401(k) Plan I and
Fiberite, Inc. 401(k) Plan II;
(xiii) without limiting Section 1.1(e)(ii), all
environmental liabilities and obligations arising from or related to
the following sites: (A) Xxxxxxxxxxxx Landfill, Xxxx Avon, California;
(B) Xxxxx X. Xxxxxxxx Landfill (formerly known as Bee Canyon Landfill)
near Irvine, Orange County, California; (C)
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Xxxxxx/Xxxxxx Xxxxx Xxxxxxxx, Xxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx; (D)
Xxxxxxxx Canyon Landfill, Orange County, California and (E) any property
formerly owned or operated by Fiberite which relates exclusively to the
Excluded Businesses;
(xiv) all obligations and liabilities of Stamford,
Fiberite Holdings (or any successor) or Fiberite which may arise in
connection with the transactions contemplated by the Stock Purchase
Agreement, the proposed sale of Fiberite Holdings, or this Agreement
to indemnify, defend and hold harmless the present and former
officers, directors, employees and agents of Fiberite Holdings,
Fiberite and the Selling Stockholders other than Buyer's obligation to
maintain insurance pursuant to Section 4.21 hereof; and
(xv) all obligations and liabilities of Stamford,
Fiberite Holdings (or any successor) or Fiberite arising in connection
with the employment agreements set forth on Schedule 1.1(e)(xv),
including, without limitation, obligations and liabilities relating to
the payment of "excess parachute payments" within the meaning of
Section 280G of the Code.
(f) For purposes of this Agreement, all obligations and
liabilities of Fiberite (whether liquidated or unliquidated, known or unknown,
contingent or otherwise) that are neither (1) described in subclauses (ii)
through (v) of clause (d) above, nor (2) described in subclauses (ii) through
(xv) of clause (e) above shall be "Allocated Liabilities", and shall be borne by
the parties in the following proportions, 80% by Buyer ("Buyer Allocated
Liabilities") and 20% by Fiberite and Stamford ("Fiberite Allocated
Liabilities"); PROVIDED, HOWEVER, that the percentage of any Allocated Liability
to be borne by Buyer on the one hand and Fiberite and Stamford on the other hand
shall be varied from the percentages set forth above in the event that the
parties in good faith reasonably agree to such other allocation based upon such
facts and circumstances giving rise to such liability and the relationship of
such liability to the Acquired Businesses and Acquired Assets on the one hand
and the Excluded Businesses and Excluded Assets on the other hand. In no event
shall (i) Buyer be liable
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for, and Stamford and Fiberite hereby indemnify and
agree to hold harmless Buyer from, the payment of any Fiberite Allocated
Liabilities or (ii) Stamford or Fiberite be liable for, and Buyer hereby
indemnifies and agrees to hold harmless Stamford and Fiberite from, the payment
of any Buyer Allocated Liabilities. With respect to any third party claim that
is subject to the provisions of this Section 1.1(f), the administration,
management and control of such third party claim shall be undertaken by the
party hereto with the greatest exposure for loss under such third party claim
(the "Administrator") and shall be administered, managed and controlled in the
manner contemplated by Section 8.5 below as if the Administrator were the
Indemnifying Party described in Section 8.4, but subject to the allocation of
liability set forth in or determined pursuant to this Section 1.1(f). Each
party hereby agrees to notify the other of any third party claim or other
obligation or liability subject to this Section 1.1(f) promptly following such
party's obtaining knowledge thereof; PROVIDED that any delay in providing such
notice shall affect such party's rights or obligations hereunder, only to the
extent the party to be notified is actually prejudiced.
Section 1.2 CONSIDERATION. Subject to the terms and conditions of
this Agreement, the consideration to be paid for the Acquired Assets and
Acquired Businesses shall consist of:
(a) $297,790,000 as adjusted by the Pre-Closing Adjustment
Amount referred to in Section 4.22 (the "Purchase Price"), payable at Closing,
by wire transfer of immediately available funds to such bank account as shall be
designated by Fiberite at least two business days prior to the Closing; and
(b) an undertaking substantially in the form set forth as
Exhibit C attached hereto (the "Undertaking"), whereby Buyer will assume and
agree to pay and discharge the Assumed Liabilities as provided in the
Undertaking.
Section 1.3 CLOSING. The Closing of the transactions contemplated
by this Agreement shall take place following the satisfaction or waiver of
all of the conditions to Closing set forth in Article V and Article VI
hereof, and immediately following the Closing of the transactions
contemplated in the Stock Purchase Agree-
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ment, at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 919 Third
Avenue, New York, New York, or on such other date and at such other time or
place as the Parties may agree. The date of the Closing is sometimes
referred to herein as the "Closing Date."
Section 1.4 DELIVERIES BY FIBERITE. At the Closing, Fiberite will
deliver or cause to be delivered to Buyer (unless delivered previously) the
following:
(a) a duly executed Xxxx of Sale and Assignment;
(b) the books and records of Fiberite other than those books
and records that relate exclusively to the Excluded Businesses to the extent
provided in Section 4.11 hereof;
(c) the consents required for assignment of the contracts
listed on Schedule 1.4(c);
(d) a Certificate of Non-Foreign Status in the form attached
hereto as Exhibit D (the "FIRPTA Certificate"), provided, however, that if
Fiberite fails to provide the FIRPTA Certificate, the transaction shall
nonetheless close and Buyer shall withhold from the Purchase Price and pay
over to the appropriate taxing authorities the amount required to be withheld
under Section 1445 of the Code as determined by Buyer;
(e) the Deeds;
(f) certain affidavits and certificates required in connection
with the recordation of the deeds;
(g) a duly executed and acknowledged assignment and assumption
agreement with respect to the ground lease for the property located at 0000
Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx; and
(h) all other documents, instruments and writings (including,
if necessary, the Other Instruments) required to be delivered by Stamford,
Fiberite Holdings and Fiberite at or prior to the Closing pursuant to this
Agreement or otherwise required in connection herewith.
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Section 1.5 DELIVERIES BY BUYER. At the Closing, Buyer will
deliver or cause to be delivered to Fiberite (unless previously delivered)
the following:
(a) the Purchase Price referred to in Section 1.2(a) hereof;
(b) the duly executed Undertaking; and
(c) all other documents, instruments or writings required to
be delivered by Buyer at or prior to the Closing pursuant to this Agreement
or otherwise required in connection herewith.
ARTICLE II-A
REPRESENTATIONS AND WARRANTIES OF
STAMFORD
Stamford represents and warrants to Buyer as follows:
Section 2A.1 ORGANIZATION. Stamford is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. True and complete copies of the certificate
of incorporation and by-laws of Stamford, as they are currently in effect and
as they will be in effect at Closing, have been made available to Buyer.
Section 2A.2 AUTHORITY. Stamford has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized and approved by Stamford. No other proceedings on the part of
Stamford are necessary to authorize this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Stamford, and, assuming this Agreement constitutes a
legal, valid and binding agreement of Buyer, constitutes a legal, valid and
binding agreement of Stamford, enforceable against Stamford in accordance with
its terms, except that enforcement thereof may be subject to (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in
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effect relating to creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor
may be brought.
Section 2A.3 NO VIOLATIONS; CONSENTS AND APPROVALS.
(a) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby to be performed by
Stamford nor compliance by Stamford with any of the provisions hereof will
(i) violate any provision of Stamford's certificate of incorporation or
by-laws, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default, or give rise to any
right of termination, cancellation or acceleration or any right that becomes
effective upon the occurrence of a merger, consolidation, sale of assets or
change in control, under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, other instrument of indebtedness for money
borrowed, license, franchise, permit or agreement to which Stamford is a
party, or by which Stamford or any of its properties is bound immediately
prior to the closing of the Stock Purchase Agreement or (iii) violate any
statute, rule, regulation, order or decree of any public body or authority by
which Stamford or any of its properties is bound immediately prior to the
closing of the Stock Purchase Agreement, excluding from the foregoing clauses
(ii) and (iii) violations, breaches, defaults or rights that, either
individually or in the aggregate, would not have a Material Adverse Effect or
materially impair its ability to consummate the transactions contemplated
hereby or for which it has received, or prior to the Closing shall have
received, appropriate consents or waivers.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any governmental entity is required by
Stamford in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, except (i) in connection
with the applicable requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended (the "HSR Act") and as required pursuant to applicable
antitrust and competition law statutes and regulations of applicable foreign
jurisdictions, (ii) for filing a notice pursuant to the Exon-Xxxxxx Amendment
and (iii) such other consents, orders,
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authorizations, registrations, declarations and filings the failure of which
to obtain would not have a Material Adverse Effect.
ARTICLE II-B
REPRESENTATIONS AND WARRANTIES OF
FIBERITE
Fiberite (as of the Effective Date) represents and warrants to Buyer
as follows:
Section 2B.1 ORGANIZATION. Fiberite is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and Fiberite has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted. True and complete copies of the certificate
of incorporation and by-laws of Fiberite, as they are currently in effect and
as they will be in effect at Closing, have been made available to Buyer.
Section 2B.2 AUTHORITY. Fiberite has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized and approved by Fiberite. No other proceedings on the part of
Fiberite are necessary to authorize this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Fiberite, and, assuming this Agreement constitutes a
legal, valid and binding agreement of Buyer, constitutes a legal, valid and
binding agreement of Fiberite enforceable against Fiberite in accordance with
its terms, except that enforcement thereof may be subject to (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
Section 2B.3 NO VIOLATIONS; CONSENTS AND APPROVALS.
14
(a) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby to be performed by Fiberite
nor compliance by Fiberite with any of the provisions hereof will violate any
provision of Fiberite's certificate of incorporation or by-laws.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any governmental entity is required by
Fiberite in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, except (i) in connection
with the applicable requirements of the HSR Act and as required pursuant to
applicable antitrust and competition law statutes and regulations of applicable
foreign jurisdictions, (ii) for filing a notice pursuant to the Exon-Xxxxxx
Amendment and (iii) such other consents, orders, authorizations, registrations,
declarations and filings the failure of which to obtain would not have a
Material Adverse Effect or which are set forth on Schedule 2B.3(b)(iii).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Stamford and Fiberite as follows:
Section 3.1 ORGANIZATION. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
Section 3.2 AUTHORITY. Buyer has full corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized and approved by Buyer, and no other proceedings on the part of Buyer
are necessary to authorize this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Buyer and, assuming this Agreement constitutes a
legal, valid and binding agreement of the other parties hereto, con-
15
stitutes a legal, valid, and binding agreement of Buyer, enforceable against
Buyer in accordance with its terms, except that enforcement thereof may be
subject to (i) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws nor or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
Section 3.3 NO VIOLATIONS; CONSENTS AND APPROVALS.
(a) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby nor compliance by
Buyer with any of the provisions hereof will (i) violate any provision of the
certificate of incorporation or by-laws of Buyer, (ii) result in a violation
or breach of, or constitute (with or without due notice or lapse of time or
both) a default, or give rise to any right of termination, cancellation or
acceleration or any right that becomes effective upon the occurrence of a
merger, consolidation, sale of assets or change in control, under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, other
instrument of indebtedness for money borrowed, license, franchise, permit or
agreement to which Buyer is a party, or by which any of their respective
properties is bound, or (iii) violate any statute, rule, regulation, order or
decree of any public body or authority by which Buyer or any of its
properties is bound, excluding from the foregoing clauses (ii) and (iii),
violations, breaches, defaults or rights that, either individually or in the
aggregate, would not materially impair Buyer's ability to consummate the
transactions contemplated hereby or for which Buyer has received or, prior to
the Closing, shall have received appropriate consents or waivers.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any governmental entity is required by
Buyer in connection with the execution and delivery of this Agreement, or the
consummation by Buyer of the transactions contemplated hereby, except (i) in
connection with the applicable requirements of the HSR Act and as required
pursuant to applicable antitrust and competition law statutes and regulations
of applicable foreign jurisdictions, (ii) for filing a notice pursuant to the
Exon-
16
Xxxxxx Amendment and (iii) such other consents, orders, authorizations,
registrations, declarations and filings not obtained prior to the Closing the
failure of which to be obtained or made would not, individually or in the
aggregate, materially impair the ability of Buyer to perform its obligations
hereunder or prevent the consummation of any of the transactions contemplated
hereby or which are set forth on Schedule 3.3(b)(iii).
ARTICLE IV
COVENANTS
Section 4.1 CONDUCT OF BUSINESS. (a) During the period from the
date of the closing of the Stock Purchase Agreement to the Closing, Fiberite
shall (i) operate the Acquired Businesses only in the ordinary course of
business consistent with past practice, (ii) use its reasonable efforts to
preserve intact the Acquired Assets (except for wear and tear in the ordinary
course of business) and the Acquired Businesses and keep available the
services of the Affected Employees (as defined in Section 4.7(a) herein),
(iii) preserve and maintain the Acquired Assets and use its reasonable
efforts to preserve and maintain satisfactory relationships with suppliers,
distributors and customers in connection with the Acquired Businesses, and
(iv) take all commercially reasonable steps to protect the Intellectual
Property rights of the Acquired Businesses and prevent any of it from falling
into the public domain.
(b) During the period from the date of the closing of the Stock
Purchase Agreement to the Closing, without the prior written consent of
Buyer, Fiberite shall not (i) mortgage, pledge or subject to any Lien (other
than Permitted Liens or as will be discharged and released prior to Closing),
any of the Acquired Assets, (ii) transfer, convey or otherwise dispose of any
of the Acquired Assets (except for sales of inventory in the ordinary course
of business), (iii) provide any Acquired Intellectual Property or any other
confidential or proprietary information with respect to the Acquired
Businesses or the Acquired Assets to any person, (iv) take any action which
could be reasonably expected to prevent or materially delay the consummation
of the transactions contemplated by this Agreement or to materially impair
the value of the Acquired Assets or the Acquired Busi-
17
nesses, (v) change any of the accounting principles or practices applied with
respect to the Acquired Assets or the Acquired Businesses, (vi) enter into,
adopt, amend (except as required by applicable law, with notice to Buyer) or
terminate any of the Plans as they apply to any of the Affected Employees or
increase the amount or accelerate the payment or vesting of any benefits
payable thereunder, (vii) increase in any manner the compensation or fringe
benefits of any Affected Employee or enter into or offer to enter into any
employment or consulting arrangement with any person who would be an Affected
Employee, (viii) amend or terminate any material contracts (including, but
not limited to the material contracts listed on Schedule 1.4(c)) or take any
action or fail to take any action that, to the knowledge of Fiberite, with or
without notice or lapse of time, would constitute a default under any such
contract; or (ix) take, or agree to take, any of the foregoing actions or any
action which would make any representation or warranty of Fiberite contained
in this Agreement untrue or incorrect as of the date when made or as of the
Closing Date or which would reasonably be expected to prevent or materially
delay the satisfaction of any condition to Closing set forth in Article V
hereof.
Section 4.2 ACCESS TO INFORMATION.
From the date of this Agreement until the Closing Date, Stamford
shall authorize and provide Buyer and Buyer's authorized representatives
(including counsel, financial advisers, environmental and other consultants,
accountants and auditors) full access to the information regarding Fiberite
Holdings and its subsidiaries provided to Stamford pursuant to Section 5.02
of the Stock Purchase Agreement and agree to exercise its rights pursuant to
Section 5.02 to obtain promptly such information as Buyer may reasonably
request (or to designate Buyer and Buyer's representatives as its authorized
representatives to obtain such information), subject to the limitations set
forth therein.
Section 4.3 COMMERCIALLY REASONABLE EFFORTS; OTHER ACTIONS. Subject
to the terms and conditions herein provided and applicable law, Buyer, on the
one hand, and Stamford and Fiberite, on the other, shall use their commercially
reasonable efforts promptly to take, or cause to be taken, all other actions and
do, or cause to be done, all other things necessary, proper, appropriate or
advisable under applicable laws and regulations to
18
consummate and make effective the transactions contemplated by this
Agreement, including, without limitation, (i) the filing of Notification and
Report Forms under the HSR Act with the Federal Trade Commission (the "FTC")
and the Antitrust Division of the Department of Justice (the "Antitrust
Division") and using their commercially reasonable efforts to respond as
promptly as practicable to all inquiries received from the FTC or the
Antitrust Division for additional information or documentation and (ii) the
obtaining of all necessary consents, approvals or waivers under applicable
law or its material contracts; PROVIDED, HOWEVER, the agreement of the
Parties contained herein shall not require Buyer to take any action that
would (i) require divestiture by Buyer of any of its existing business
operations or of a not insubstantial portion of the Acquired Assets or
Acquired Businesses, or (ii) impose a commercially unreasonable burden on, or
restriction upon, Buyer's existing business operations or the Acquired
Businesses or the Acquired Assets.
Section 4.4 PUBLIC ANNOUNCEMENTS. Except as may be required by
applicable law, rule, regulation or legal process, so long as this Agreement
is in effect, none of Stamford, Fiberite, Buyer or any of their respective
subsidiaries or Affiliates shall issue or cause the publication of any press
release or other public announcement with respect to the transactions
contemplated by this Agreement without the consent of the other parties
hereto, which consent shall not be unreasonably withheld or withdrawn,
PROVIDED, HOWEVER, nothing in this Section 4.4 shall limit or restrict Buyer
from communicating with customers, suppliers, advisors or analysts with
respect to the transactions contemplated by this Agreement or require the
consent from any other Party hereto.
Section 4.5 NOTIFICATION OF CERTAIN MATTERS. Stamford shall
provide to Buyer within one business day of receipt thereof a copy of any
notification received by Stamford pursuant to Section 5.05 of the Stock
Purchase Agreement. Stamford shall provide to Buyer such notification in the
manner described in Section 9.3 hereof.
Section 4.6 EXPENSES. Except as provided herein, Buyer, on the one
hand, and Stamford and Fiberite, on the other hand, shall bear their respective
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, and all fees and
19
expenses of their respective investment bankers, finders, brokers, agents,
representatives, counsel and accountants.
Section 4.7 AFFECTED EMPLOYEES.
(a) Buyer shall offer to employ (effective as of the Closing)
the employees (other than the Executives as defined in Section 4.7(d)) of
Fiberite Holdings and its subsidiaries who are actively employed in the
United States and who are either (i) employed exclusively in the Acquired
Businesses or (ii) primarily work in the Acquired Businesses (together, the
"Affected Employees"). Consistent with the foregoing, the Parties shall
mutually agree between the date of this Agreement and the Closing Date on
appropriate mechanisms for the orderly transition from Fiberite to Buyer of
Affected Employees who accept employment with Buyer.
(b) Buyer shall provide to each Affected Employee who is not
covered by a collective bargaining agreement, and who accepts Buyer's offer,
a compensation and benefits package which is generally comparable in the
aggregate to the compensation and benefits package provided such Affected
Employee immediately prior to the Closing Date, which compensation and
benefits package shall not be changed in any manner that would cause such
package to not be generally comparable at any time prior to January 1, 1998.
Fiberite Holdings and its subsidiaries which employ Affected Employees shall
give notice to each Affected Employee who is not covered by a collective
bargaining agreement (in compliance with Section 3.3(ii) of the ICI
Composites Severance Plan or, if applicable, its successor plan, the
Fiberite, Inc. Severance Plan, as provided in the draft thereof delivered to
Buyer's counsel by Fiberite Holdings' counsel) that Fiberite Holdings and its
subsidiaries intend to terminate his or her employment if he or she does not
accept Buyer's offer. Buyer shall provide compensation and benefits, on
terms and conditions to be determined by Buyer, to each Affected Employee who
is covered by a collective bargaining agreement, and who accepts Buyer's
offer. Subject to compliance with the foregoing provisions of this Section
4.7(b), Buyer reserves the right to establish, amend, modify or terminate any
terms or conditions of employment for such Affected Employees. Nothing in
this Section 4.7 shall be deemed (i) to require the employment of any
Affected Employee to be continued for any particular
20
period of time after the Closing Date, or (ii) to require Buyer to assume any
collective bargaining agreement.
(c) If any Affected Employee who is not covered by a
collective bargaining agreement and who accepts Buyer's offer becomes a
participant in any employee benefit or compensation plan of Buyer, such
Affected Employee shall be given credit under such plan for all prior service
with Fiberite Holdings and its subsidiaries, Affiliates and predecessors
which is recognized by Fiberite Holdings or its subsidiaries, solely for
purposes of determining eligibility and vesting (but not benefit accrual or
any other purposes); provided, however, that such service need not be
credited to the extent it would result in a duplication of benefits,
including without limitation, benefit accrual service under defined benefit
plans. Nothing in this Section 4.7(c) shall be construed to alter Buyer's
obligations under Section 4.7(b) above.
(d) Fiberite will make available (on a non-exclusive basis)
the services of Messrs. Ashton, Smith, Miller, XxXxxxx and Xxxxxx (the
"Executives") to work for Buyer in the Acquired Businesses for a period of up
to six (6) months from the Closing at their salaries on the date hereof,
including pro-rata target bonuses and benefits packages (without changing
their domicile) which such expenses will be allocated between Fiberite and
Buyer on a pro rata basis. In addition, Fiberite shall cause the Executives
to terminate their respective employment and severance agreements and to
waive all of their respective rights thereunder as of the Closing Date. The
provisions of Sections 4.7(a), 4.7(b) and 4.7(c) do not apply to the
Executives.
Section 4.8 INSURANCE. Subsequent to the Closing, neither Fiberite
Holdings (or any successor) nor Fiberite shall surrender their respective rights
under any policies of insurance which were in effect at the time immediately
prior to the Closing Date in respect of risks and losses arising out of events
or occurrences occurring prior to the Closing Date in the course or as a result
of the conduct of the Acquired Businesses, with respect to the Acquired Assets,
Assumed Liabilities or Buyer Allocated Liabilities ("Prior Occurrences");
PROVIDED, HOWEVER, that nothing herein shall be deemed to require Fiberite
Holdings (or any successor) or Fiberite to maintain any insurance with respect
to events or occurrences occurring after the Closing Date. Fiberite
21
Holdings (or any successor) and Fiberite shall cause Buyer to be designated
as loss payee under such policies with respect to the Prior Occurrences, and
shall assign to Buyer, or designate Buyer as their agent with respect to, all
claims and other rights to enforce or assure insurance coverage under such
policies with respect to Prior Occurrences; PROVIDED further, that in the
event Fiberite Holdings (or any successor) or Fiberite is unable to designate
Buyer as loss payee under such policies, Fiberite Holdings (or any successor)
and Fiberite shall cooperate with Buyer and use their commercially reasonable
efforts to provide Buyer the equivalent benefits of such policies.
Section 4.9 SUMS RECEIVED IN RESPECT OF ACQUIRED BUSINESSES AND
EXCLUDED BUSINESSES. Fiberite shall pay or cause to be paid over to Buyer,
promptly after the receipt thereof after the Closing Date, all sums received in
respect or on account of the Acquired Assets and the Acquired Businesses, other
than the Purchase Price and any other amounts paid to Stamford by Buyer pursuant
to this Agreement. Buyer shall pay or cause to be paid over to Fiberite,
promptly after the receipt thereof after the Closing Date, all sums received in
respect or on account of the Excluded Assets and the Excluded Businesses, other
than amounts paid to Buyer by Fiberite, Fiberite Holdings or Stamford pursuant
to this Agreement.
Section 4.10 NAME. From and after the Closing Date and consistent
with the terms hereof, Buyer shall possess, to the exclusion of Stamford,
Fiberite Holdings and Fiberite and their respective subsidiaries and Affiliates,
all rights to the use of the Acquired Intellectual Property (except as set forth
in Section 4.13 hereof), including the name "Fiberite", and Fiberite and its
subsidiaries shall each, as promptly as commercially practicable following the
Closing Date, change its name to a name which does not contain either "Fiberite"
or any word confusingly similar with such word. Notwithstanding the previous
sentence, Fiberite may continue to use the Fiberite name in the ordinary course
of the Excluded Businesses for the period terminating on the six month
anniversary of the Closing.
Section 4.11 BOOKS AND RECORDS. Each of the Parties agree that all
books and records of Fiberite Holdings and Fiberite, wherever located, which
a Party
22
acquires hereunder (including, but not limited to, correspondence, memoranda,
books of account, personnel and payroll records and the like) (the "Business
Records") shall be preserved by such Party for a period of at least seven (7)
years following the Closing Date. Following such seven (7) year period,
neither Stamford, Fiberite Holdings and Fiberite (or any successor thereof),
on the one hand, nor Buyer, on the other hand, will dispose of any such books
and records without first offering such books and records to the other Party.
After the Closing Date, where there is some legitimate business purpose, the
Party in possession of any Business Records shall provide the other Party and
its authorized representatives with access, upon prior reasonable notice
specifying the need therefor, during regular business hours, to the Business
Records, and the other Party or its representatives shall have the right to
examine and make copies of such Business Records; provided that the foregoing
right shall not be exercisable in such a manner as to unreasonably interfere
with the normal operations of such Party.
Section 4.12 ALLOCATION OF THE PURCHASE PRICE. As soon as
practicable after the date hereof, but in no event less than 10 days prior to
the Closing Date, Buyer and Stamford shall mutually agree on an allocation
(the "Allocation Statement") of the Purchase Price payable by Buyer pursuant
to Section 1.2 hereof plus the amount of any Assumed Liabilities
(collectively, the "Allocable Amount") for federal income tax purposes in
accordance with their fair market values and with the requirements of Section
1060 of the Code. Each of Buyer and Fiberite shall (i) report for all Tax
purposes the purchase of the Acquired Assets in a manner consistent with the
Allocation Statement and in a manner consistent with all applicable rules and
regulations; (ii) timely file a Form 8594 in accordance with the requirements
of Section 1060 of the Code and this Section 4.12; (iii) not assert, in
connection with any Return, Tax audit or similar proceedings, any allocation
of the Allocable Amount that differs from that agreed to herein; and (iv)
notify the other in the event any taxing authority is taking or proposing to
take a position inconsistent with such allocation.
23
Section 4.13 AGREEMENTS REGARDING INTELLECTUAL PROPERTY. At
Closing, Buyer, Fiberite and the German Subsidiary shall enter into
agreements, which agreements shall be in form and substance agreeable to
Buyer, Fiberite and the German Subsidiary (as applicable), regarding the
exploitation of certain Intellectual Property following the Closing by the
Orange Businesses, the German Businesses and the Acquired Businesses. Any or
all of such agreements may contain royalty payment provisions, and such
royalties may take the form of a lump sum fully paid up royalty.
Section 4.14 ASSIGNMENT OF CONTRACTS; NONASSIGNABILITY. From and
after the Closing Date Fiberite shall use commercially reasonable efforts to
obtain all necessary consents, approvals or waivers required for the transfer to
Buyer of the agreements, contracts and commitments, and any other property
interest or right that is included in the Acquired Assets. Notwithstanding the
foregoing, to the extent that any contract, agreement or commitment, or any
other property interest or right included in the Acquired Assets, is not capable
of being assigned or transferred without the consent or waiver of the other
party thereto, or any third person (including a government or governmental
unit), or if such assignment or transfer or attempted assignment or transfer
would constitute a breach thereof or a violation of any law, decree, order,
regulation or other governmental edict or is otherwise not practicable, this
Agreement shall not constitute an assignment, transfer or sublease thereof, or
an attempted assignment, transfer or sublease thereof prior to the time that the
appropriate consent or waiver is obtained. To the extent that any contract,
agreement or commitment or any other property interest or right included in the
Acquired Assets is not assigned hereby (the "Non-Assigned Contracts"), then
Fiberite shall, and Stamford shall cause Fiberite to, use commercially
reasonable efforts to provide to Buyer the economic benefit of the Non-Assigned
Contracts. The parties acknowledge that to the extent the rights under an
agreement are validly assigned or to the extent that Buyer receives the economic
benefit of any such agreement, the Buyer will assume the obligations under such
agreement, PROVIDED THAT, Buyer will use commercially reasonable efforts,
including where appropriate partial performance, to assist Stamford and Fiberite
to provide to Buyer the economic benefit of any agreement. Furthermore, the
Parties hereto acknowledge and agree that to the extent the transactions
contemplated by this Agreement have closed and there exists any Non-Assigned
24
Contracts, Buyer does not waive any rights to receive any assignment of or to
receive the economic benefit from the Non-Assigned Contracts. In the event a
contract relating to raw materials is used by both the Acquired Businesses
and the Excluded Businesses as of the Closing, the Buyer and Fiberite agree
for a commercially reasonable period to share or otherwise allocate the
benefits and obligations under such contract in the proportion used by the
respective businesses over the recent past.
Section 4.15 ASSIGNMENT OF CERTAIN INDEMNIFICATION RIGHTS. From
and after the Closing Date, Fiberite shall use commercially reasonable
efforts to obtain the consents and approvals necessary to assign all rights
of Fiberite Holdings (and any successor) and Fiberite to indemnification from
any party under the agreements listed on Schedule 1.1(a)(xii) to the extent
related to the Acquired Assets, Acquired Businesses or any Assumed
Liabilities and to the extent that, by operation of law or otherwise, Buyer
is held liable for any Excluded Liabilities. Stamford, Fiberite and Buyer
shall each cooperate and use commercially reasonable efforts to provide for
the allocation of all indemnification rights available under the agreements
listed on Schedule 1.1(a)(xii) such that the Party who has assumed any
liability for which any such agreement provides indemnification may exercise
rights directly to obtain such indemnification. To the extent that a Party
may not directly seek indemnification under an agreement listed on Schedule
1.1(a)(xii) with respect to any covered liability, then the Party who may
seek such indemnification directly shall, use commercially reasonable efforts
to obtain such indemnification from the third party and to provide to the
Party subject to such liability the economic benefit of such indemnification
received from such third party.
Section 4.16 CONTINUATION OF CERTAIN PLANS.
Upon written request from the Buyer delivered to Fiberite within the
first ninety (90) days immediately following the Closing Date, Stamford shall
take, or shall cause the sponsoring employer to take, all necessary or
appropriate actions reasonably requested by the Buyer with respect to the
Fiberite, Inc. 401(k) Plan I and the Fiberite, Inc. 401(k) Plan II
(collectively the "Fiberite 401(k) Plans") to cause and facilitate the
transfers of any assets related to Affected Employees who accept employment
with Buyer from the respective trustees of the Fiberite, Inc. 401(k) Plans to
the trustee(s) of one or
25
more retirement plans qualified under Code Sections 401(a) and 401(k) which
are designated or established by Buyer (the "Buyer's 401(k) Plans"). Upon
the transfer, each Buyer's 401(k) Plan shall indemnify and hold harmless the
corresponding Fiberite 401(k) Plan from and against all liabilities
attributable to the account balances transferred to such Buyer's 401(k) Plan.
Section 4.17 EXON-XXXXXX. During the period from the execution of
the Stock Purchase Agreement through the Closing Date, Fiberite shall not,
and Stamford shall not permit Fiberite to, engage in any activity that would
result in Fiberite or Fiberite Holdings being required to file an amendment
to its initial filing with respect to compliance with the terms of the
Exon-Xxxxxx Amendment in connection with the transactions contemplated hereby.
Section 4.18 TRANSITIONAL SERVICES. Each of the Parties agree that
for a transitional period commencing on the Closing Date and expiring 90 days
thereafter, or such later date as the Parties shall mutually agree Buyer on
the one hand and Fiberite on the other hand, shall provide such other Party
with all services reasonable and necessary to operate such other Party's
business as it is being operated as of the Closing Date. The Party
requesting such services shall pay to the Party upon request (with such
requests not being made more often than once every thirty days) providing
such services all Costs incurred by the providing Party in connection with
providing such services. As used herein, "Costs" shall mean an amount equal
to the total direct costs and expenses incurred in connection with providing
the applicable services, calculated in accordance with generally accepted
accounting principles, consistently applied.
Section 4.19 SUPPLY AGREEMENT. On or after the Closing Date, the
Parties will enter into a mutually satisfactory supply agreement whereby Buyer
will provide fabric and certain other raw materials to the business conducted at
the Orange Facility and the German Subsidiary.
Section 4.20 TAX COOPERATION. The Parties and their respective
affiliates shall cooperate in the preparation of all Returns relating in whole
or in part to taxable periods ending on or before or including the Closing Date
that are required to be filed after such date. Such cooperation shall include,
but not be limited
26
to, furnishing prior years' Returns or return preparation packages
illustrating previous reporting practices or containing historical
information relevant to the preparation of such Returns, providing reasonable
access to employees with knowledge of such Returns during regular business
hours and furnishing such other information within such party's possession
requested by the party filing such Returns as is relevant to their
preparation. Additionally, a Party filing any such Returns (the "Filing
Party") shall mail a draft copy of such Returns to the other party (the
"Non-Filing Party"), not less than 30 days prior to the expected filing date
and shall provide the Non-Filing Party and its representatives, advisors and
agents with such materials and such access to the books and records of the
Filing Party related to such Return so that the Non-Filing Party may review
and comment on such Return prior to the filing thereof. The Filing Party and
the Non-Filing Party shall mutually agree on the final preparation content
and filing of any Return referred to in this Section 4.20.
Section 4.21 DIRECTORS' AND OFFICERS' INSURANCE. Buyer agrees to
maintain in effect for not less than six years after the Closing Date the
current policies of directors' and officers' liability insurance maintained
by Fiberite with respect to matters occurring prior to the Closing Date;
PROVIDED, HOWEVER, that (i) Buyer may substitute therefor policies of at
least the same coverage containing terms and conditions which are no less
advantageous to the covered officers and directors and (ii) Buyer shall not
be required to pay an annual premium for such insurance coverage in excess of
one hundred and twenty-five percent (125%) of the current annual premium paid
by Fiberite for its existing coverage, but in such case shall purchase as
much coverage as possible for such amount. If Buyer proposes to change the
liability insurance coverage referred to in this Section 4.21 such change
shall become effective upon obtaining the consent from a duly appointed
representative of the persons covered by such liability insurance (which
consent shall not be unreasonably withheld). In addition, Buyer hereby
waives any and all claims that Buyer may have against the officers and
directors of Fiberite and its subsidiaries in their capacities as such.
Section 4.22 PRE-CLOSING ADJUSTMENT. Prior to the Closing Date, the
parties shall mutually agree on the value of certain assets listed on Schedule
1.1(a)(xvii) (the "Pre-Closing Adjustment Amount"), at which time, the
27
consideration to be paid by Buyer under Section 1.2 hereof will be increased
by the Pre-Closing Adjustment Amount.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF BUYER
The obligation of Buyer to perform its obligations under this
Agreement shall be subject to the fulfillment, on or before the Closing Date
of each of the following conditions, any one or more of which may be waived
by Buyer:
Section 5.1 CONSENTS AND APPROVALS. All necessary consents and
approvals of any United States or any other governmental authority that are
required for the consummation of the transactions contemplated by this
Agreement, shall have been obtained and any waiting period applicable to the
consummation of the transactions contemplated by this Agreement under the HSR
Act and under any applicable antitrust and competition law statutes and
regulations of foreign jurisdictions, or other applicable law shall have
expired or been terminated.
Section 5.2 CERTAIN PROCEEDINGS. No writ, order, decree or
injunction of a court of competent jurisdiction, governmental entity or
regulatory body shall be in effect against any of the Parties or their
respective subsidiaries and no proceedings therefor shall have been
threatened or commenced by any governmental entity or regulatory body, in
each case, which prohibits or restricts the consummation of the transactions
contemplated by this Agreement.
Section 5.3 FINANCING Buyer shall have received the funds
necessary to consummate the transactions contemplated by this Agreement.
Section 5.4 STOCK PURCHASE AGREEMENT. The representations and
warranties of Fiberite Holdings (including the disclosure Schedules attached
thereto) contained in Article II of the Stock Purchase Agreement shall have been
true and correct in all material respects as of the closing of the transactions
contemplated by the Stock Purchase Agreement and shall be true and correct in
all material respects as of the Closing Date. Each of the conditions contained
in Article VI and Article VII of
28
the Stock Purchase Agreement shall have been satisfied and complied with,
shall not have been waived without Buyer's prior written consent, the
transactions contemplated by the Stock Purchase Agreement shall have been
consummated and Stamford shall have caused Fiberite to execute and deliver
this Agreement.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF
STAMFORD AND FIBERITE
The obligations of Stamford and Fiberite to perform their respective
obligations under this Agreement shall be subject to the fulfillment on or
before the Closing Date of each of the following conditions, any one or more of
which may be waived by Stamford and Fiberite:
Section 6.1 CONSENTS AND APPROVALS. All necessary consents and
approvals of any United States or any other governmental authority that are both
required for the consummation of the transactions contemplated by this Agreement
shall have been obtained and any waiting period applicable to the consummation
of the transactions contemplated hereby under the HSR Act and under any
applicable antitrust and competition law statutes and regulations of foreign
jurisdictions, or other applicable law shall have expired or been terminated.
Section 6.2 CERTAIN PROCEEDINGS. No writ, order, decree or
injunction of a court of competent jurisdiction, governmental entity or
regulatory body shall be in effect against any of the Parties or their
respective subsidiaries, and no proceedings therefor shall have been threatened
or commenced by any governmental entity, which prohibits or restricts the
consummation of the transactions contemplated by this Agreement.
ARTICLE VII
TERMINATION AND ABANDONMENT
Section 7.1 TERMINATION. This Agreement may be terminated at any
time prior to the closing of the Stock Purchase Agreement:
29
(a) by mutual written consent of Stamford and Buyer;
(b) by Stamford or Buyer if, without fault of such terminating
party, the transactions contemplated by this Agreement shall not have been
consummated on or before September 15, 1997, which date may be extended by
mutual written consent of Stamford and Buyer; or
(c) by either Stamford or Buyer if any court of competent
jurisdiction in the United States or other governmental body in the United
States shall have issued an order (other than a temporary restraining order),
decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement, and
such order, decree, ruling or other action shall have become final and
nonappealable; PROVIDED that the party seeking to terminate this Agreement
shall have complied with the provisions of Section 4.3.
Section 7.2 TERMINATION BY BUYER. This Agreement may be terminated
and the transactions contemplated by this Agreement may be abandoned, at any
time prior to the closing of the Stock Purchase Agreement by Buyer, if (a)
either Stamford or Fiberite has failed to comply in any material respect with
any of the material covenants or agreements contained in this Agreement to be
complied with or performed by Stamford or Fiberite, at or prior to such date
of termination, (b) there exists a breach or breaches of any representation
or warranty of Stamford or Fiberite contained in this Agreement such that the
closing conditions set forth in Article V would not be satisfied; PROVIDED,
HOWEVER, that if such breach or breaches are capable of being cured prior to
the closing of the Stock Purchase Agreement, termination pursuant to this
Section 7.2 shall be permitted only to the extent such breaches shall not
have been cured within 30 days of delivery to Stamford or Fiberite, as the
case may be, of written notice of such breach or breaches, or (c) any event
occurs which renders impossible compliance with one or more of the conditions
set forth in Article V hereof, and compliance with such condition or
conditions are not waived by Buyer.
Section 7.3 TERMINATION BY STAMFORD. This Agreement may be
terminated and the transactions contemplated by this Agreement may be
abandoned by Stamford at
30
any time prior to the closing of the Stock Purchase Agreement, if (a) Buyer
shall have failed to comply in any material respect with any of the material
covenants or agreements contained in this Agreement to be complied with or
performed by it at or prior to such date of termination, (b) there exists a
breach or breaches of any representation or warranty of Buyer contained in
this Agreement such that the closing conditions set forth in Article VI would
not be satisfied; PROVIDED, HOWEVER, that if such breach or breaches are
capable of being cured prior to the closing of the Stock Purchase Agreement,
termination pursuant to this Section shall be permitted only to the extent
such breaches shall not have been cured within 30 days of delivery to Buyer
of written notice of such breach or breaches, or (c) any event occurs which
renders impossible compliance with one or more of the conditions set forth in
Article VI hereof, and compliance with such condition or conditions are not
waived by Stamford.
Section 7.4 PROCEDURE FOR TERMINATION. In the event of termination
and abandonment of the transactions contemplated by this Agreement by
Stamford or Buyer pursuant to this Article VII, written notice thereof shall
forthwith be given to the other.
Section 7.5 EFFECT OF TERMINATION AND ABANDONMENT. In the event of
proper termination of this Agreement and abandonment of the transactions
contemplated by this Agreement pursuant to this Article VII, no Party hereto
(or any of its directors or officers) shall have any liability or further
obligation to any other Party to this Agreement, except that in such event
nothing herein shall relieve any Party from liability for any breach of this
Agreement.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, COVENANTS,
ETC. Except for the respective covenants and other agreements of the Parties
made in this Article VIII and Article IX hereof, the respective representations,
warranties, covenants and other agreements of the Parties shall not survive the
Closing or any termination of this Agreement. This Section 8.1 shall
31
not limit any covenant or agreement of the Parties which contemplates
performance after the Closing, including, without limitation, any such
covenants and agreements set forth in Article IV hereof and in the
Undertaking.
Section 8.2 FIBERITE'S AND STAMFORD'S AGREEMENTS TO INDEMNIFY.
Subject to the terms, conditions and limitations set forth in
Sections 8.1 and 8.5, from and after the Closing, Stamford and Fiberite shall
defend, indemnify and hold harmless Buyer, its Affiliates and if applicable,
their respective directors, officers, employees, attorneys, representatives
and agents, and each of the heirs, executors, successors and assigns of any
of the foregoing (each a "Buyer Indemnitee") of Buyer from and against any
costs or expenses (including, without limitation, reasonable attorneys' fees,
investigation costs and remediation costs), judgments, fines, losses,
actions, claims, damages and assessments of any nature (collectively,
"Losses") imposed on, sustained, incurred or suffered by or asserted against
any Buyer Indemnitee that arise out of or relate to (i) any breach of or
failure to perform any covenant to be performed on or after the Closing Date
made by or on behalf of Stamford or Fiberite under this Agreement, the Other
Instruments or in any certificate, exhibit or other instrument contemplated
by this Agreement and delivered by Stamford or Fiberite in connection
herewith and (ii) the Excluded Liabilities.
Section 8.3 BUYER'S AGREEMENT TO INDEMNIFY.
Subject to the terms, conditions and limitations set forth in Sections
8.1 and 8.5, from and after the Closing, Buyer shall defend, indemnify and hold
harmless Stamford and Fiberite and their respective Affiliates, and if
applicable, their respective directors, officers, attorneys, representatives and
agents and each of the heirs, executors, successors and assigns of any of the
foregoing (each a "Seller Indemnitee") of Stamford, Fiberite Holdings and
Fiberite from and against any Losses imposed on, sustained, incurred or suffered
by or asserted against any Seller Indemnitee that arise out of or are the result
of (i) any breach of or failure to perform any covenant to be preformed on or
after the Closing Date made by or on behalf of Buyer under this Agreement, the
Other Instruments or in any certificate, exhibit or other instrument
contemplated by this Agree-
32
ment and delivered by Buyer in connection herewith and (ii) the Assumed
Liabilities.
Section 8.4 INDEMNIFICATION BASED ON NET DAMAGE. In calculating
amounts payable from a party required to indemnify a party under this
Agreement (the "Indemnifying Party") to a party entitled to indemnification
under this Agreement (an "Indemnified Party"), the amount of the indemnified
Losses shall be computed net of payments received by the Indemnified Party
under any insurance policy or contract with respect to such Losses.
Section 8.5 THIRD PARTY CLAIMS. In the event that a claim for
indemnification ("Claim") involves a claim by a Third Party against the
Indemnified Party, the Indemnifying Party shall notify the Indemnified Party in
writing within ten business days after receipt of written notice from the
Indemnified Party if it agrees to undertake the defense thereof. The written
notice provided to the Indemnifying Party from the Indemnified Party shall be
delivered promptly following the Indemnified Party's obtaining knowledge of the
Claim and shall state the basis of the Claim with reasonable specificity,
including the Section or Sections of this Agreement alleged to have been
breached. If the Indemnifying Party so notifies the Indemnified Party, then the
Indemnifying Party shall control such defense and shall bear all costs of such
defense, PROVIDED, that the Indemnified Party may participate in such settlement
or defense through counsel chosen by it (the fees and expenses of which shall be
borne by the Indemnified Party). Notwithstanding anything in this Section 8.5
to the contrary, the Indemnifying Party may, with the consent of the Indemnified
Party (which consent shall not be unreasonably withheld), settle or compromise
any action or consent to the entry of any judgment which includes as a term
thereof the delivery by the claimant or plaintiff to the Indemnified Party of a
duly executed written unconditional release of the Indemnified Party from all
liability in respect of such action, which release shall be reasonably
satisfactory in form and substance to counsel for the Indemnified Party. If the
Indemnifying Party does not notify the Indemnified Party within ten business
days after the receipt of the Indemnified Party's notice of a claim of indemnity
hereunder that it elects to undertake the defense thereof, the Indemnified Party
shall have the right to contest, settle or compromise the claim but shall not
thereby waive any right to indemnity therefor pursuant to this Agreement.
Notwithstanding the forego-
33
ing, the Indemnified Party, during the period the Indemnifying Party is
determining whether to elect to assume the defense of a matter covered by
this Section 8.5, may take such reasonable actions as it deems necessary to
preserve any and all rights with respect to the matter, without such actions
being construed as a waiver of the Indemnified Party's rights to defense and
indemnification pursuant to this Agreement. No failure to provide any notice
required by this Section 8.5 shall relieve the Indemnifying Party of any
obligation to indemnify the Indemnified Party hereunder except to the extent
that the Indemnifying Party is actually prejudiced thereby.
ARTICLE IX
MISCELLANEOUS
Section 9.1 FEES, EXPENSES AND TAXES.
(a) Whether or not the transactions contemplated herein are
consummated pursuant hereto, except as otherwise provided herein, each of the
Parties shall pay all of its respective fees and expenses incurred by, or in
connection with, or in anticipation of, this Agreement and the consummation
of the transactions contemplated hereby and thereby. Each of the Parties
shall indemnify and hold harmless the other parties from and against any and
all claims or liabilities for brokerage commissions and financial advisory
and finders' fees incurred by reason of any action taken by such Party or
otherwise arising out of the transactions contemplated by this Agreement by
any person claiming to have been engaged by such Party. Buyer shall be
responsible for the payment of any fee, sales tax, transfer tax, filing
expense or other charge incurred in connection with the transfer of the
Acquired Assets or the Acquired Business.
(b) Each of Buyer and Fiberite shall provide the other with
such assistance and documents, without charge, as may be reasonably requested
by either of them in connection with the preparation of any Return, the
conduct of any audit or administrative or court proceeding, and any other Tax
related matter that is a subject of this Agreement. Such cooperation and
assistance shall be provided to the requesting Party promptly upon its
request.
34
(c) Unless otherwise required by law, the Parties shall treat
any indemnification payments made under this Agreement as an adjustment to the
Allocable Amount for all Tax purposes, including, without limitation, in
connection with all income Tax Returns and all proceedings in connection with
income Taxes. Each of Buyer, Fiberite Holdings (or any successor) and Fiberite
shall notify the others in the event any taxing authority is taking or proposing
to take a position inconsistent with the treatment of an indemnification
payment, pursuant to the first sentence of this Section 9.1(c), as an adjustment
to the Allocable Amount.
Section 9.2 FURTHER ASSURANCES. From time to time after the
Closing Date, at the request of another Party hereto and at the expense of
the Party so requesting, each of the parties hereto shall execute and deliver
to such requesting Party such documents and take such other action as such
requesting Party may reasonably request in order to consummate more
effectively the transactions contemplated hereby.
Section 9.3 NOTICES. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and may be given by any of the following methods: (a)
personal delivery; (b) facsimile transmission; (c) registered or certified
mail, postage prepaid, return receipt requested; or (d) overnight delivery
service. Notices shall be sent to the appropriate Party at its address or
facsimile number given below (or at such other address or facsimile number
for such Party as shall be specified by notice given hereunder):
If to Stamford, to:
Stamford FHI Acquisition Corp.
000 Xxxxxxx Xx.
Xxxxxx, XX 00000
(000) 000-0000
Attention: President
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
35
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxx Xxxxx, Esq.
If to Fiberite, to:
Fiberite, Inc.
000 Xxxxxxx Xx.
Xxxxxx, XX 00000
(000) 000-0000
Attention: President
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxx Xxxxx, Esq.
If to Buyer, to:
Hexcel Corporation
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxx, Esq.
with copies to:
Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Coco, Esq.
All such notices, requests, demands, waivers and communications shall be
deemed received upon (i) actual receipt thereof by the addressee, (ii) actual
delivery thereof to the appropriate address or (iii) in the case of a
facsimile transmission, upon transmission thereof by the sender and issuance
by the transmitting machine of a confirmation slip that the number of pages
constituting the notice have been transmitted without error. In the case of
notices sent by facsimile transmission, the sender shall contemporaneously
mail a copy of the notice to the addressee at the address provided for above.
However,
36
such mailing shall in no way alter the time at which the facsimile notice is
deemed received.
Section 9.4 SEVERABILITY. Should any provision of this Agreement
for any reason be declared invalid or unenforceable, such decision shall not
affect the validity or enforceability of any of the other provisions of this
Agreement, which remaining provisions shall remain in full force and effect
and the application of such invalid or unenforceable provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable shall be valid and enforced to the fullest extent permitted by
law.
Section 9.5 BINDING EFFECT; ASSIGNMENT. This Agreement and all of
the provisions hereof shall be binding upon and shall inure to the benefit of
the Parties and their respective successors and permitted assigns. Neither
this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned, directly or indirectly, including, without limitation, by
operation of law, by any Party hereto without the prior written consent of
the other parties hereto. Notwithstanding anything herein to the contrary,
this Section 9.5 shall not preclude and Buyer's consent shall not be required
for the merger of Stamford, Fiberite Holdings and Fiberite immediately
following the closing under the Stock Purchase Agreement and the transfer of
Stamford's rights hereunder caused thereby.
Section 9.6 BULK SALES LAW. Buyer hereby waives compliance by
Fiberite with the requirements and provisions of any "bulk-transfer" laws of
any jurisdiction that may otherwise be applicable with respect to the
transactions contemplated by this Agreement.
Section 9.7 NO THIRD PARTY BENEFICIARIES. This Agreement is solely
for the benefit of Stamford, Fiberite and their respective successors and
permitted assigns, with respect to the obligations of Buyer under this
Agreement, and for the benefit of Buyer, and its respective successors and
permitted assigns, with respect to the obligations of Stamford and Fiberite,
under this Agreement, and this Agreement shall not be deemed to confer upon
or give to any other third party any remedy, claim, liability, reimbursement,
cause of action or other right.
37
Section 9.8 INTERPRETATION.
(a) The article and Section headings contained in this Agreement
are solely for the purpose of reference, are not part of the agreement of the
parties and shall not in any way affect the meaning or interpretation of this
Agreement.
(b) As used in this Agreement, the term "person" shall mean and
include an individual, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any department or
agency thereof.
(c) As used in this Agreement, the term "Affiliate" shall have the
meaning set forth in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended.
Section 9.9 JURISDICTION AND CONSENT TO SERVICE. Without limiting
the jurisdiction or venue of any other court, each of the Parties (i) agree
that any suit, action or proceeding arising out of or relating to this
Agreement may be brought solely in the state or federal courts of New York;
(ii) consent to the exclusive jurisdiction of each such court in any suit,
action or proceeding relating to or arising out of this Agreement; (iii)
waive any objection which it may have to the laying of venue in any such
suit, action or proceeding in any such court; and (iv) agree that service of
any court paper may be made in such manner as may be provided under
applicable laws or court rules governing service of process.
Section 9.10 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York
(regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof) as to all matters, including but not
limited to matters of validity, construction, effect, performance and
remedies.
Section 9.11 ENTIRE AGREEMENT. This Agreement, the Disclosure
Schedules, and the Exhibits and other documents referred to herein or delivered
pursuant hereto which form a part hereof constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all other
prior agreements
38
and understandings, both written and oral, between the parties or any of them
with respect to the subject matter hereof.
Section 9.12 AMENDMENT, MODIFICATION AND WAIVER. This Agreement
may be amended, modified or supplemented at any time only by mutual written
agreement of Stamford and Buyer. Any failure of Stamford and Fiberite, on
the one hand, or Buyer, on the other hand, to comply with any term or
provision of this Agreement may be waived, with respect to Buyer, by Stamford
and, with respect to Stamford or Fiberite, by Buyer, by an instrument in
writing signed by or on behalf of the appropriate party, but such waiver or
failure to insist upon strict compliance with such term or provision shall
not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure to comply.
Section 9.13 SPECIFIC PERFORMANCE. The parties acknowledge and
agree that any breach of the terms of this Agreement would give rise to
irreparable harm for which money damages would not be an adequate remedy and
accordingly the parties agree that, in addition to any other remedies, each
shall be entitled to enforce the terms of this Agreement by a decree of
specific performance without the necessity of proving the inadequacy of money
damages as a remedy.
Section 9.14 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
Section 9.15 EFFECTIVE DATE. This Agreement shall be deemed an
agreement between Stamford and Buyer until executed by Fiberite at which time
it shall be deemed to be an agreement between Buyer, Stamford and Fiberite,
and Stamford shall cause Fiberite to execute this Agreement immediately
following the closing of the Stock Purchase Agreement (the "Effective Date").
Without limiting the generality of the foregoing, all representations,
warranties, covenants or other obligations of any kind made or incurred by
Fiberite as a result of the execution and delivery of this Agreement shall be
deemed to have been made as of, and Fiberite shall deliver its Schedules
applicable to the representations and warranties it is making at, the time of
its delivery of a signature page hereto.
39
ARTICLE X
CERTAIN DEFINITIONS
For the purposes of this Agreement, the following words and phrases
shall have the following meanings:
"ACQUIRED ASSETS" has the meaning assigned in Section 1.1(a).
"ACQUIRED BUSINESSES" means the entire business conducted by Fiberite
as of the Closing Date, other than the Excluded Businesses.
"ACQUIRED INTELLECTUAL PROPERTY" has the meaning assigned in Section
1.1(a)(ix).
"ADMINISTRATOR" has the meaning assigned in Section 1.1(f).
"AFFECTED EMPLOYEE" has the meaning assigned in Section 4.7(a).
"AFFILIATE" has the meaning assigned in Section 9.8(c).
"AGREEMENT" means this agreement, dated as of April 21, 1997, together
with any amendments thereto, by and among Fiberite, Stamford and Buyer.
"ALLOCABLE AMOUNT" has the meaning assigned in Section 4.12.
"ALLOCATED LIABILITIES" has the meaning assigned in Section 1.1(f).
"ALLOCATION STATEMENT" has the meaning assigned in Section 4.12.
"ANTITRUST DIVISION" has the meaning assigned in Section 4.3.
"ASSUMED LIABILITIES" has the meaning assigned in Section 1.1(d).
40
"XXXX OF SALE AND ASSIGNMENT" means the duly executed xxxx of sale
and assignment agreement, substantially in the form attached hereto as
Exhibit B, which Stamford and Fiberite will deliver to Buyer effecting the
sale, assignment, transfer and delivery of the Acquired Assets.
"BUSINESS RECORDS" has the meaning assigned by Section 4.11.
"BUYER" means Hexcel Corporation.
"BUYER ALLOCATED LIABILITIES" has the meaning assigned by
Section 1.1(f).
"BUYER INDEMNITEE" has the meaning assigned by Section 8.2.
"BUYER'S 401(K) PLANS" has the meaning assigned in Section 4.16.
"CLAIM" has the meaning assigned by Section 8.5.
"CLOSING" means the closing of the transactions described in
Section 1.3.
"CLOSING DATE" means the date of the Closing as determined pursuant to
Section 1.3.
"CODE" means the Internal Revenue Code of 1986, as amended. All
citations to the Code, or to the Treasury Regulations promulgated thereunder,
shall include any amendments or substitute or successor provisions thereto.
"COMMON STOCK" means the shares of Common Stock, par value $.01 per
share, of Fiberite Holdings.
"COSTS" has the meaning assigned in Section 4.18.
"DEEDS" has the meaning assigned in Section 1.1(b).
"DOMESTIC SUBSIDIARY" has the meaning assigned in Section 1.1(a)(xvi).
41
"EFFECTIVE DATE" has the meaning assigned in Section 9.15.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCLUDED ASSETS" has the meaning assigned in Section 1.1(c).
"EXCLUDED BUSINESSES" has the meaning assigned in Section 1.1(c)(ii).
"EXCLUDED LIABILITIES" has the meaning assigned by Section 1.1(e).
"FIBERITE" means Fiberite, Inc.
"FIBERITE ALLOCATED LIABILITIES" has the meaning assigned in
Section 1.1(f).
"FIBERITE FRANCE" means Fiberite France SARL, a corporation formed
under the laws of France.
"FIBERITE HOLDINGS" means Fiberite Holdings, Inc., a Delaware
corporation.
"FIBERITE 401(K) PLANS" has the meaning assigned in Section 4.16.
"FILING PARTY" has the meaning assigned in Section 4.20.
"FIRPTA CERTIFICATE" has the meaning assigned in Section 1.4(d).
"FTC" has the meaning assigned by Section 4.3.
"GERMAN BUSINESSES" means the businesses conducted by the German
Subsidiary.
"GERMAN SUBSIDIARY" means Fiberite Europe GmbH.
"GREENVILLE FACILITY" means the facility located at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxx.
00
"XXX XXX" has the meaning assigned in Section 2A.3(b).
"INDEMNIFIED PARTY" has the meaning assigned in Section 8.4.
"INDEMNIFYING PARTY" has the meaning assigned in Section 8.4.
"INTELLECTUAL PROPERTY" shall mean throughout the world (i) Patents,
(ii) Trademarks, (iii) Trade Names, (iv) Know-how, (v) shop rights and (vi)
copyrights.
"INVENTORY" has the meaning assigned by Section 1.1(a)(iv).
"KNOW-HOW" shall mean all trade secrets, know-how (including product
know-how and use and application know-how), formulas, processes, product
designs, specifications, quality control procedures, manufacturing, engineering
and other drawings, technology, technical information, safety information, lab
journals, engineering data and design and engineering specifications, research
records, market surveys and all promotional literature, customer and supplier
lists and similar data.
"LIENS" means all mortgages, pledges, security interests, liens,
changes, options, easements, rights of way or other encumbrances.
"LOSSES" has the meaning assigned in Section 8.2.
"MATERIAL ADVERSE EFFECT" means an event which has a material adverse
effect on the business, operations, financial condition or results of operations
of the Acquired Businesses taken as a whole, or materially impairs the value or
usefulness of the Acquired Assets taken as a whole.
"NON-ASSIGNED CONTRACTS" has the meaning set forth in Section 4.14.
"NON-FILING PARTY" has the meaning assigned in Section 4.20.
43
"ORANGE BUSINESSES" has the meaning assigned in Section 1.1(c)(ii).
"ORANGE FACILITY" means the facility located at 000 Xxxxx Xxxxxxx,
Xxxxxx Xxxxxxxxxx.
"OTHER INSTRUMENTS" has the meaning assigned in Section 1.1(b).
"PARTIES" has the meaning set forth in the preamble.
"PATENTS" shall mean patents (including all reissues, divisions,
re-examinations, continuations, continuations in part and extensions
thereof), patent applications and patent disclosures docketed and all other
patent rights.
"PERMITTED LIENS" means mechanics', carriers', workers', repairers',
materialmens', warehousemens' and other similar Liens arising or incurred in the
ordinary course of business consistent with past practice and which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
"PERSON" has the meaning assigned in Section 9.8(b).
"PLANS" means the Fiberite, Inc. Pension Plan, the Fiberite, Inc.
Service Related Pension Plan, the Fiberite, Inc. 401(k) Plan I, and the
Fiberite, Inc. 401(k) Plan II.
"PRE-CLOSING ADJUSTMENT" has the meaning assigned by Section 4.22.
"PRIOR OCCURRENCES" has the meaning assigned by Section 4.8.
"PURCHASE PRICE" has the meaning set forth in Section 1.2(a).
"RETURN" means any report, return or other information filed with or
required to be supplied to a taxing authority in connection with Taxes.
44
"SCHEDULE(s)" means any schedule(s) included in the Disclosure
Schedule.
"SELLER INDEMNITEE" has the meaning assigned in Section 8.3
"SELLING STOCKHOLDERS" shall refer to the stockholders and
optionholders of Fiberite Holdings existing immediately prior to the closing of
the Stock Purchase Agreement.
"STAMFORD" means Stamford FHI Acquisition Corp.
"STOCK PURCHASE AGREEMENT" means the Stock Purchase and Sale
Agreement, dated as of April 20, 1997 by and among Stamford, Fiberite and the
Selling Stockholders.
"TAXES" means all taxes, assessments, charges, duties, fees, levies or
other governmental charges, including, without limitation, all Federal, state,
local, foreign and other income, gross receipts, franchise, profits, capital
gains, capital stock, transfer, sales, use, occupation, property, excise,
severance, windfall profits, stamp, license, payroll, withholding, social
security and other taxes, assessments, charges, duties, fees, levies or other
governmental charges of any kind whatsoever (whether payable directly or by
withholding and whether or not requiring the filing of a Return), and all
estimated taxes, deficiency assessments, additions to tax, penalties and
interest.
"THIRD PARTIES" means any parties other than the Parties to this
Agreement and their respective Affiliates.
"TRADEMARKS" shall mean trademarks and service marks, registrations
thereof, pending applications therefor and such unregistered rights as may exist
through use.
"TRADE NAMES" shall mean trade names, brand marks, trade dress, brand
names, logos and all other names and slogans or product goodwill for which no
trademark registration has been obtained and for which no application is
pending.
45
"UNDERTAKING" means the duly executed undertaking, substantially in
the form attached hereto as Exhibit C, whereby Buyer will assume and agree to
pay and discharge the Assumed Liabilities.
46
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first above written.
STAMFORD FHI ACQUISITION CORP.
By:
-----------------------------------
Title:
--------------------------------
FIBERITE, INC.
By:
-----------------------------------
Title:
--------------------------------
HEXCEL CORPORATION
By:
-----------------------------------
Title:
--------------------------------
47
