Execution Copy
ASSET PURCHASE AGREEMENT
by and among
Aalberts Industries U.S. Holding Corp.
("Parent")
Elkhart Products Corporation
(a Delaware corporation)
and
Elkhart Products, Ltd.
(a Canada corporation)
("Purchasers"),
and
Amcast Industrial Corporation,
Elkhart Products Corporation
(an Indiana corporation),
and
Amcast Industrial Ltd.,
(collectively, "Sellers")
Dated July 8, 2004
Table of Contents
Page
1. AGREEMENT TO SELL AND AGREEMENT TO PURCHASE...........................1
1.1 Assets to be Conveyed........................................1
1.2 Excluded Assets..............................................3
1.3 Closing......................................................4
2. CONSIDERATION TO BE PAID BY PURCHASER.................................4
2.1 Purchase Price for Acquired Assets; Payment Thereof..........4
2.2 Liabilities Assumed by Purchasers............................5
2.3 Liabilities Not Assumed by Purchaser.........................6
2.4 Purchase Price Adjustment....................................6
2.5 Sales Taxes..................................................7
2.6 Price Allocation.............................................7
3. REPRESENTATIONS AND WARRANTIES OF PURCHASERS AND PARENT...............8
3.1 Organization, Good Standing, Authority and Enforceability....8
3.2 Agreement Not in Breach of Other Instruments.................8
3.3 Consents.....................................................8
3.4 Available Funds..............................................9
3.5 No Brokerage Fees............................................9
4. REPRESENTATIONS AND WARRANTIES OF SELLERS.............................9
4.1 Organization, Good Standing and Authority....................9
4.2 Authorization of Agreement; No Conflict......................9
4.3 Acquired Assets.............................................10
4.4 Financial Statements........................................10
4.5 Real Property and Leaseholds................................11
4.6 Tangible Personal Property Other Than Inventory.............12
4.7 Intellectual Property Assets................................12
4.8 Insurance...................................................13
4.9 Environmental Matters.......................................14
4.10 Employment Matters..........................................14
4.11 Employee Benefit Plans......................................16
-i-
Table of Contents
(continued)
Page
4.12 Contracts...................................................17
4.13 Consents....................................................18
4.14 [Reserved]..................................................18
4.15 Disclaimer..................................................18
4.16 Inventory...................................................18
4.17 Products Liability..........................................19
4.18 Customers and Suppliers.....................................19
4.19 Litigation..................................................19
4.20 Taxes.......................................................19
4.21 Agreements and Transactions with Related Parties............21
4.22 Absence of Changes..........................................21
4.23 Compliance with Laws........................................22
4.24 Utilities...................................................22
4.25 Receivables.................................................22
4.26 No Broker's Fees............................................22
4.27 Sufficiency of Assets.......................................22
4.28 No other Representations and Warranties.....................22
4.29 Books and Records...........................................23
4.30 Backlog.....................................................23
4.31 Other Information...........................................23
5. CERTAIN UNDERSTANDINGS AND AGREEMENTS OF THE PARTIES.................23
5.1 Reasonable Efforts; Further Assurances......................23
5.2 Access......................................................23
5.3 Covenant Not to Compete.....................................24
5.4 Accounts Receivable.........................................24
5.5 Employees...................................................25
5.6 Consents....................................................26
5.7 Use of Business Names by Purchasers.........................26
5.8 Bulk Transfer Laws..........................................27
-ii-
Table of Contents
(continued)
Page
5.9 Reimbursement for Product Warranty Obligations..............27
5.10 Prorations..................................................27
5.11 Confidentiality.............................................27
5.12 Tax Matters.................................................29
5.13 Operations Pending Closing..................................29
5.14 Expenses....................................................30
5.15 Title Commitment and Survey.................................30
5.16 Motor Vehicles..............................................30
5.17 Exclusivity Agreement.......................................30
5.18 Intellectual Property License...............................31
5.19 Multiemployer Plan..........................................31
6. CONDITIONS TO CLOSING................................................32
6.1 Conditions to Obligations of Each Party.....................32
6.2 Conditions to Obligations of the Buying Parties.............32
6.3 Conditions to Obligations of Sellers........................34
7. INDEMNIFICATION......................................................35
7.1 Indemnification by Sellers..................................35
7.2 Indemnification by the Buying Parties.......................36
7.3 Determination of Loss.......................................36
7.4 Limitations on Indemnification..............................37
7.5 Indemnification Procedure...................................39
7.6 Exclusive Remedy............................................40
7.7 Survival....................................................40
8. TERMINATION..........................................................41
8.1 Termination Events..........................................41
8.2 Effect of Termination.......................................41
9. MISCELLANEOUS........................................................42
9.1 Entire Agreement............................................42
9.2 Amendments; Waiver..........................................42
-iii-
Table of Contents
(continued)
Page
9.3 Successors; Assignment......................................42
9.4 Notices.....................................................42
9.5 Severability and Reformation................................43
9.6 No Third Party Beneficiary..................................43
9.7 Applicable Law..............................................43
9.8 Mediation and Arbitration...................................43
9.9 Counterparts................................................45
9.10 Headings; Construction......................................45
9.11 Consent to Service of Process and Jurisdiction..............45
9.12 Appointment of Amcast as Agent for Seller...................45
9.13 Certain Information.........................................46
10. CERTAIN DEFINITIONS..................................................46
10.1 Definitions.................................................46
-iv-
SCHEDULES
Schedule 1.1(d)...Prepaid Expenses
Schedule 1.1(h)...Facility Leases
Schedule 1.1(i)...Motor Vehicles
Schedule 1.1(j)...Leasehold Improvements and Construction in Progress
Schedule 1.1(k)...Listed Intellectual Property Assets
Schedule 1.1(l)...Owned Real Property
Schedule 1.2(c)...Assets Subleased to Affiliates of Seller
Schedule 1.2(k)...Certain Excluded Assets
Schedule 2.2(d)...Employment and Retention Obligations of Sellers
Schedule 2.6......Allocation of Purchase Price and Assumed Obligations for Tax
Purposes
Schedule 3.3......Buying Parties' Required Consents
Schedule 6.1(d)...Consents Required for Closing
-v-
EXHIBITS
Exhibit A......... Form of Instrument of Assumption
Exhibit B......... Form of Xxxx of Sale
Exhibit C......... Form of Legal Opinion (Sellers')
Exhibit D......... Form of Supply Agreement
Exhibit E......... Form of Legal Opinion (Parent and Purchasers')
Exhibit F......... Form of Transition Services Agreement
Exhibit G......... Form of Escrow Agreement
-vi-
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is dated as of July 8, 2004, by
and among Aalberts Industries U.S. Holding Corp., a Delaware corporation
("Parent"), Elkhart Products Corporation, a Delaware corporation ("U.S.
Purchaser"), Elkhart Products, Ltd., a Canada corporation ("Canadian
Purchaser"), Amcast Industrial Corporation, an Ohio corporation ("Amcast"),
Elkhart Products Corporation, an Indiana corporation ("Elkhart Products"),
Amcast Industrial Ltd., a Canada corporation ("Amcast Canada" and together with
Amcast, Amcast Canada and Elkhart Products, "Sellers"). Section 10 of this
Agreement defines certain capitalized terms used but not elsewhere defined in
this Agreement.
RECITALS:
A........WHEREAS, Sellers are engaged in the business of manufacturing and
selling copper fittings, manufacturing and selling aluminum extrusions for
pistons and manifolds used in automotive and air conditioning applications, and
selling brass plumbing products and brass casting products (excluding such
businesses as operated by any Seller or its Affiliates at its Anniston, Alabama
facility, the "Business");
B........WHEREAS, Parent is a corporation engaged in the business of, among
other things, developing, producing and selling dispense systems and
distribution systems for various industrial uses;
C........WHEREAS, U.S. Purchaser and Canadian Purchaser ("Purchasers") are
wholly owned subsidiaries of Parent; and
D........WHEREAS, U.S. Purchaser desires to purchase substantially all of
the assets of each Seller used by such Seller or necessary for the operation of
the Business in the United States and Canadian Purchaser desires to purchase
substantially all of the assets of each Seller used by such Seller or necessary
for the operation of the Business in Canada, and Sellers desire to sell such
assets to Purchasers, all upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants herein contained and for other good and valuable consideration, the
receipt and adequacy of which hereby are acknowledged, the parties hereto agree
as follows:
1. AGREEMENT TO SELL AND AGREEMENT TO PURCHASE.
1.1 Assets to be Conveyed.
On the terms and subject to the conditions set forth herein, and except as
provided in Section 1.2 hereof, on the Closing Date (as defined in Section 1.3
hereof), (i) each of Amcast and Elkhart Products shall convey, sell, transfer,
assign and deliver to U.S. Purchaser free and clear of all Liens (other than
Permitted Liens) and U.S. Purchaser shall purchase, acquire and accept from each
of Amcast and Elkhart Products, the following assets owned by each of Amcast and
Elkhart Products as of the Closing Date and (ii) Amcast Canada shall convey,
sell, transfer, assign and deliver to Canadian Purchaser, free and clear of all
Liens (other than Permitted Liens) and Canadian Purchaser shall purchase,
acquire and accept from Amcast Canada, the following assets owned by Amcast
Canada as of the Closing Date (all of such assets listed in Section 1.1(a)
through 1.1(r) being referred to as the "Acquired Assets"):
1
(a) inventories of raw materials, work in process, semi-finished goods,
finished goods, goods in transit, spare parts and replacement and component
parts located or manufactured at the Facilities (collectively, the "Inventory");
(b) all office and other supplies, containers and other packaging
materials, safety equipment, maintenance supplies and other similar items
located at the Facilities or used by any Seller primarily in the operation of
the Business (collectively, the "Supplies");
(c) all machinery, parts, toolings, dies, jigs, molds, supplies, office,
laboratory and testing, safety and other equipment, computers, tools, furniture,
and other tangible personal property located at the Facilities or used primarily
in the Business other than Supplies (collectively, the "Equipment");
(d) the prepaid items, credits, deposits, advance payments, deferred
charges, refunds, rebates, rights to payment and other similar assets listed on
Schedule 1.1(d) hereto (the "Prepaid Expenses");
(e) accounts and notes receivable and any security held by any Seller for
the payment thereof to the extent such items relate to the Business, but
excluding, for avoidance of doubt, any such items that have been factored to
third parties (the "Accounts Receivable");
(f) all customer lists and other files relating to customers of the
Business and, to the extent they relate to the Business (and then only that
portion that relates to the Business), all computer software and software in
progress, sales brochures, data bases, service records, plans and designs for
fixtures and equipment, monitoring and test records, quality control analyses,
sales and inventory records, operating guides and manuals, accounting records,
studies, reports, correspondence, production records and other books and records
(the "Proprietary Information");
(g) all warranties, indemnifications and guaranties by, and rights, choses
in action and claims, known or unknown, matured or unmatured, accrued or
contingent against, third parties, to the extent they relate to the Business;
(h) each Seller's right, title and interest in and to the Facility leases
set forth on Schedule 1.1(h) (the "Facility Leases"), the Agreement dated April
21, 2004 between Elkhart Products and Local 1315 of District 90 of the
International Association of Machinists (the "Union Contract"), all other
Material Contracts, and all other contracts, agreements and commitments
(including customer and purchase orders, whether oral or written, to which a
Seller is a party at the Closing Date or by which any of the Acquired Assets is
then bound and which relate primarily to the Business (all of the foregoing to
be assigned to Purchaser pursuant hereto including the Facility Leases, the
Union Contract and the Material Contacts, are hereinafter referred to
collectively as the "Contracts" and individually as a "Contract") and including
all Contracts pursuant to which any Person is authorized to use any Intellectual
Property of Seller that is included in the Acquired Assets or a Seller is
authorized to use any other Person's Intellectual Property in the operation of
the Business;
2
(i) motor vehicles listed on Schedule 1.1(i) hereto;
(j) those leasehold improvements and construction in progress located on
the Facilities, including those set forth on Schedule 1.1(j) hereto;
(k) patents, patent applications, registered copyrights, copyright
applications, registered trademarks, registered service marks, and trademark and
service xxxx applications listed on Schedule 1.1(k) (the "Listed Intellectual
Property Assets"), the Intellectual Property licenses and Contracts listed on
Schedule 4.7, together with any Seller's right to assert or xxx on any claims
based on any such Intellectual Property Licenses or any of the Listed
Intellectual Property Assets;
(l) the real estate described on Schedule 1.1(l), together with all rights
of way and easements appurtenant thereto (the "Owned Real Property");
(m) to the extent it relates to the Business (and then only that portion
that relates to the Business), all Intellectual Property other than the Listed
Intellectual Property Assets, together with any Seller's right to assert or xxx
on any claims based thereon;
(n) the name "Elkhart", "Elkhart Products" and "EPC" and derivatives
thereof;
(o) all Permits;
(p) goodwill, to the extent it relates to the Business;
(q) all insurance claims and rights, to the extent that they pertain to the
Assumed Liabilities; and
(r) subject to the provisions of Section 1.2, all other assets owned by a
Seller as of the Closing Date used by such Seller primarily in the operation of
the Business as currently conducted, wherever located.
1.2 Excluded Assets.
Notwithstanding anything contained in Section 1.1 hereof to the contrary,
Sellers are not selling, and Purchasers are not purchasing, pursuant to this
Agreement, any of the following, all of which shall be retained by the
applicable Seller (the "Excluded Assets"):
(a) any cash, investments and other cash equivalents;
(b) each Seller's minute books, Tax Returns and other organizational
documents, and each Seller's financial records and employment records;
(c) assets of any Seller that were previously used in the Business but as
of the Closing Date are subleased to Affiliates of Sellers, including the assets
set forth on Schedule 1.2(c);
3
(d) all qualifications to transact business as a foreign corporation,
arrangements with registered agents with respect to foreign qualifications, and
taxpayer and other identification numbers;
(e) any Tax benefits and rights to refunds, including rights to any net
operating losses;
(f) any contracts or rights relating to borrowed money;
(g) any contracts, agreements or rights between a Seller and any of its
Affiliates (including another Seller but excluding Xxx Brass Company), including
any Tax-sharing agreements;
(h) all insurance contracts and policies, insurance refunds from prepaid
insurance, and insurance deposits, recoveries and rights under any current or
prior insurance contracts or policies;
(i) any assets, contracts or rights relating to Seller Benefit Plans other
than assets, contracts or rights relating to Seller Benefit Plans required under
the Union Contract;
(j) the trademarks, trade names, business name "Amcast" and any and all
variations thereof and any related goodwill, trademark applications and
registrations, and internet domain names which consist of or incorporate the
name "Amcast" and any and all variations thereof;
(k) all assets properties and rights owned by Xxx Brass Company or LBC
Group Corp., and all assets, properties and rights used in the operation of Xxx
Brass Company's business located in Anniston, Alabama;
(l) the real property facility at Dayton, Ohio and all tangible assets
located at such facility; and
(m) the assets listed on Schedule 1.2(m).
1.3 Closing. The closing of the transactions herein contemplated (the
"Closing") shall, unless another date, time or place is agreed to by the parties
in writing, take place at the offices of Amcast in Dayton, Ohio, at 10 A.M.,
local time, on July 21, 2004 or, if later, within five business days after the
satisfaction or waiver of all conditions set forth in Sections 6.1(b), 6.1(c),
6.2(c) and 6.3(d) hereof. The actual date of Closing is referred to in this
Agreement as the "Closing Date."
2. CONSIDERATION TO BE PAID BY PURCHASER.
2.1 Purchase Price for Acquired Assets; Payment Thereof. The purchase price
for the Acquired Assets shall be $57,098,014 (the "Initial Cash Purchase
Price"), subject to adjustment pursuant to Section 2.4 below, plus the
assumption of the Assumed Liabilities (as defined in Section 2.2). The Initial
Cash Purchase Price shall be paid at the Closing to Sellers as follows:
4
(a) $56,398,014 shall be paid by Purchasers to Amcast on behalf of all
Sellers in cash, certified check, wire transfer or other immediately available
funds ("Immediately Available Funds"), and Amcast shall pay over to Amcast
Canada that portion of the Initial Cash Purchase Price paid by Canadian
Purchaser; and
(b) $700,000 (the "Escrow Funds") shall be paid in Immediately Available
Funds to an escrow agent designated by Sellers and Purchasers, which amount
shall be held by a mutually acceptable escrow agent and disbursed in accordance
with the terms of an Escrow Agreement in the form attached as Exhibit G to this
Agreement (together with any changes thereto as requested by the escrow agent,
the "Escrow Agreement"). The Escrow Funds shall be used to pay the premium for a
representations and warranty policy to be obtained by Purchasers on terms no
less favorable to the insured parties as the terms proposed by AIG in its
indication of interest dated June 21, 2004 (the "Indemnification Insurance"). If
the Indemnification Insurance is not issued within six (6) months after Closing,
the Escrow Funds shall be promptly paid to Sellers; if the policy is issued
within six (6) months after Closing but the premium is less than $700,000, then
the balance of the Escrow Funds shall be promptly paid to Sellers, and if the
premium is more than $700,000, the excess shall be paid by Purchasers.
2.2 Liabilities Assumed by Purchasers. As further consideration for the
purchase of the Acquired Assets and consummation of the other transactions
contemplated hereby, on the Closing Date, Purchasers shall assume and agree to
pay, perform and discharge in full, when due, the following liabilities of
Sellers (excluding the obligations and liabilities specified in Section 2.3)
with respect to the Business (the "Assumed Liabilities") by execution and
delivery to Sellers of an instrument of assumption in substantially the form
attached as Exhibit A (the "Instrument of Assumption"):
(a) all obligations and liabilities arising under or associated with the
Contracts (other than those Contracts that are Excluded Assets and other than
Seller Withdrawal Liabilities and Seller Contribution Liabilities), including
the Facility Leases and the Union Contract;
(b) all accounts payable and other liabilities, including all accrued
payroll, accrued vacation and accrued sick pay liabilities, all accrued payroll
Taxes, all accrued real and personal property, franchise and sales and use Taxes
(but excluding any income or Michigan Single Business Tax) (all such Taxes being
assumed by Purchaser are referred to in this Agreement as the "Affected Taxes"),
all obligations for contributions required to be made by Sellers and ERISA
Affiliates with respect to the I.A.M. Multiemployer Plan for the time period
ending on the Closing Date, and all other current and deferred liabilities of
Sellers with respect to the Business, in each case to the extent they are
accrued for or reserved against on the Final Closing Working Capital Statement;
(c) subject to the provisions of Section 5.9, all warranty obligations to
repurchase, replace or repair any goods manufactured or sold by the Business
before or after Closing; and
(d) other than Seller Withdrawal Liabilities and Seller Contribution
Liabilities, all liabilities or obligations with respect to the I.A.M. National
Pension Fund, Benefit Plan B (the "I.A.M. Multiemployer Plan") and any other
Seller Benefit Plan under the Union Contract, and the obligation to contribute
to the I.A.M. Multiemployer Plan as set forth in Section 5.19 below; and
5
(e) the employment and retention obligations of Sellers set forth on
Schedule 2.2(d).
2.3 Liabilities Not Assumed by Purchaser. Except for the Assumed
Liabilities, Purchasers shall not assume or be liable or responsible for,
whether as a successor or otherwise, any obligation or liability of any Seller
of any kind or nature whatsoever. Without limiting the foregoing sentence,
Purchasers shall not assume or become obligated with respect to any pension or
similar obligations related to the Business (other than those specified in
Section 2.2(d)) or any Employee Liabilities.
2.4 Purchase Price Adjustment.
(a) The Initial Cash Purchase Price shall be adjusted by an amount (which
may be a positive or negative number) equal to the difference between the
Working Capital (as defined below) of the Business at Closing as set forth on
the Final Closing Working Capital Statement (as defined below) and $10,500,000
(the "Target Working Capital").
(b) Sellers shall prepare and deliver to Purchasers within 45 days after
Closing an unaudited statement of Working Capital as of June 27, 2004 in
accordance with the same methodologies, assumptions and accounting practices
used to prepare the Unaudited Financial Statements (as defined in Section 4.4)
(the "Closing Working Capital Statement") and, in particular, for purposes of
the Closing Working Capital Statement inventory shall be determined using the
interim inventory valuation method described in Schedule 4.4. Purchasers shall
provide Sellers reasonable access to all books, records and other documents and
information requested by Sellers to prepare the Closing Working Capital
Statement. Purchasers shall have 45 days from the date on which the Closing
Working Capital Statement is delivered to them to review the Closing Working
Capital Statement (the "Review Period"). During the Review Period, Sellers shall
provide Purchasers full access upon reasonable advance notice to the information
used by Sellers to prepare the Closing Working Capital Statement for purposes of
Purchasers' review. Purchasers may dispute items or amounts reflected on the
Closing Working Capital Statement on any reasonable basis consistent with this
Agreement and with Sellers' historical accounting methodologies, assumptions and
practices, by delivering to Sellers, on or prior to the last day of the Review
Period, a notice of objection setting forth, in reasonable detail, each disputed
item or amount and the basis for Purchasers' disagreement therewith, together
with supporting calculations. If no notice of objection is received by Sellers
on or prior to the last day of the Review Period, the Closing Working Capital
Statement provided by Sellers shall be deemed accepted by Purchasers and shall
be final, binding and conclusive on Purchasers. If Purchasers give such notice
of objection, then Purchasers and Sellers shall use their reasonable efforts to
resolve such dispute. In the event such dispute is not resolved by the parties
within fifteen (15) days of the receipt of notice of such objection by Sellers,
then the issues in dispute shall be submitted to BDO Xxxxxxx, LLP, certified
public accountants (the "Accountants") and Purchasers and Sellers shall cause
the Accountants to determine the Working Capital of the Business at Closing in
accordance with the terms of this Agreement, including the first sentence of
this Section 2.4(b), but within the range of differences between the parties and
only with respect to the items that are in dispute. If issues in dispute are
submitted to the Accountants for resolution, (i) each party shall furnish to the
Accountants such workpapers and other documents and information relating to the
disputed issues and the Closing Working Capital Statement as the Accountants may
request (including a copy of this Agreement) and which are available to that
party (or its independent public accountants), and shall be afforded the
opportunity to present to the Accountants any material relating to the
determination and to discuss the determination with the Accountants; (ii) the
determination by the Accountants, which shall be set forth in a written notice
delivered to Sellers and Purchasers as soon as practicable by the Accountants,
shall be final, binding and conclusive on the parties for all purposes; and
(iii) Purchasers shall bear one-half and Sellers shall bear one-half of the fees
of the Accountants for such determination. The Closing Working Capital Statement
and Initial Cash Purchase Price, as both are finally adjusted pursuant to this
Section, are referred to in this Agreement as the "Final Closing Working Capital
Statement" and the "Final Cash Purchase Price," respectively.
6
(c) No later than five (5) business days after the final determination of
the Working Capital of the Business at Closing, whether by the passing of the
Review Period without written notice of objection as set forth in subsection (b)
above, the passing of the Review Period by the resolution of the parties or by
the determination of the Accountants, if the Working Capital of the Business at
Closing as finally determined is greater than the Target Working Capital,
Purchasers shall pay such difference to Sellers (allocated among them as set
forth on Schedule 2.6), and if the Working Capital of the Business at Closing as
finally determined is less than the Target Working Capital, Sellers shall pay
such difference to Parent, on behalf of Purchasers. Payments must be made in
Immediately Available Funds as requested by the party or parties receiving the
funds.
(d) For purposes hereof, the term "Working Capital" shall mean (i) the sum
of Accounts Receivable, Prepaid Expenses, Inventory and other current assets
included in the Acquired Assets, less (ii) the sum of accounts payables
(including all payables owing to Xxx Brass Company or LBC Group Corp.), accrued
employment expenses, Affected Taxes and other current and deferred liabilities
of the Business included in the Assumed Liabilities. Notwithstanding the
foregoing, for purposes of this Agreement, Working Capital shall not include (A)
bank debt, (B) costs and expenses associated with the transactions contemplated
by this Agreement, (C) long-term indebtedness and the current portion of any
such long term indebtedness.
2.5 Sales Taxes. Sellers shall be responsible for one-half, and Purchasers
shall be responsible for one-half, of all sales, use, excise, transfer, value
added and similar Taxes imposed by any Government in any jurisdiction on the
purchase and sale of any of the Acquired Assets, but excluding GST and any
income taxes payable by Sellers as a result of the completion of the
transactions described in this Agreement. Amcast Canada and Canadian Purchaser
shall jointly elect under Section 167(l) of the Excise Tax Act (Canada),
following the prescribed form and including the prescribed information, with
respect to the purchase and sale of those of the Acquired Assets located or used
in Canada. Amcast Canada shall file the joint election with the return required
to be filed by Canadian Purchaser under the Excise Tax Act (Canada) for Canadian
Purchaser's reporting period in which the sale was made, in compliance with the
requirements of the Excise Tax Act (Canada).
7
2.6 Price Allocation. The Initial Cash Purchase Price and the Assumed
Liabilities shall be allocated among the Acquired Assets as set forth on
Schedule 2.6 for all Tax purposes. This allocation shall be appropriately
adjusted to reflect any increase or decrease in the Initial Cash Purchase Price
under Section 2.4. The allocation of the Final Cash Purchase Price and the
Assumed Liabilities shall be binding, to the extent not in conflict with
applicable Law, upon Purchasers and Sellers for all Tax purposes. Purchasers and
Sellers further agree to file, as applicable, their respective U.S. federal
income Tax Returns and Form 8594 and, to the extent not in conflict with
applicable Law, their other Tax Returns reflecting such allocation and any other
reports required by Section 1060 of the Code in accordance with said allocation.
Each party agrees to prepare and timely file all applicable IRS forms and forms
required under Canadian and provincial Law, to cooperate with the other parties
in the preparation of such forms and to furnish the other parties with a copy of
such forms prepared in draft, within a reasonable period before the due date
thereof. In addition, each party agrees to notify the other parties in the event
any taxing authority takes or purports to take a position inconsistent with the
agreed-upon allocations.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASERS AND PARENT.
Each of Purchasers and Parent (the "Buying Parties") represents and
warrants to, and covenants and agrees with, each Seller that:
3.1 Organization, Good Standing, Authority and Enforceability. Each Buying
Party is a corporation duly organized, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation. Each Buying Party has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement and each other
agreement and instrument to be executed by a Buying Party in connection herewith
have been (or upon execution shall have been) duly executed and delivered by
that Buying Party, have been duly authorized by all necessary corporate action
and constitute (or upon execution shall constitute) legal, valid and binding
obligations of the Buying Party executing the agreement or instrument,
enforceable against the applicable Buying Party in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other Laws relating to or affecting the rights and remedies of
creditors generally and to general principles of equity (regardless of whether
considered in a proceeding in equity or at law), and no other corporate actions
or proceedings on the part of either Buying Party are necessary to authorize the
execution, delivery and performance by the Buying Parties of this Agreement and
each other agreement and instrument to be executed by a Buying Party in
connection herewith. Canadian Purchaser is not a "non-resident" of Canada within
the meaning of the Income Tax Act (Canada). Canadian Purchaser shall register
for purposes of the GST Legislation as soon as practicable and shall provide to
Sellers its registration number when it is received.
3.2 Agreement Not in Breach of Other Instruments. Neither the execution and
delivery of this Agreement by the Buying Parties nor the consummation by the
Buying Parties of the transactions contemplated herein shall result in a
violation or breach of, or constitute a default under (a) any agreement,
indenture or other instrument to which either Buying Party is a party or by
which it is bound, (b) the certificate of incorporation or bylaws of either
Buying Party, (c) any judgment, decree, order or award of any court, Government
or arbitrator by which either Buying Party is bound, or (d) any Law applicable
to either Buying Party.
8
3.3 Consents. The execution and delivery of this Agreement by the Buying
Parties and the consummation of the transactions contemplated by this Agreement
by the Buying Parties (a) do not require the consent, approval or action of, or
any filing with or notice to, any Person or Government, except as specified in
Schedule 3.3, and (b) do not require the consent or approval of the shareholders
or board of directors of either Buying Party, except such as have been obtained
and are in full force and effect.
3.4 Available Funds. The Buying Parties have readily available to them
committed funds sufficient to allow them to consummate the transactions
contemplated by this Agreement on a timely basis.
3.5 No Brokerage Fees. Neither of the Buying Parties nor anyone acting on
their behalf has incurred any liability or obligation to pay fees or commissions
to any broker, finder or agent with respect to the transactions contemplated by
this Agreement for which Sellers or any of their Affiliates shall be liable.
4. REPRESENTATIONS AND WARRANTIES OF SELLERS.
Each Seller represents and warrants to, and covenants and agrees with, the
Buying Parties that:
4.1 Organization, Good Standing and Authority. Each Seller is a corporation
duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation. Each Seller has full corporate authority and
power to carry on its business as it is now conducted, and to own, lease or
operate the Acquired Assets owned, leased or operated by that Seller. Except as
set forth on Schedule 4.1, each Seller is qualified to do business and is in
good standing in each jurisdiction in which the Acquired Assets are owned,
leased or operated by it or the nature of the operation of the Business requires
that Seller qualify to transact business as a foreign corporation, other than
any jurisdiction in which the failure to be so registered would not reasonably
be expected to have a Material Adverse Effect. A list of jurisdictions in which
each Seller is registered as a foreign corporation with respect to the Business
is attached as Schedule 4.1. Amcast Canada is not a "non-resident" of Canada
within the meaning of the Income Tax Act (Canada). Amcast Canada is registered
for the purposes of the GST Legislation and shall provide Canadian Purchaser its
registration number as soon as practicable after the date of this Agreement.
This Agreement provides for the sale to Canadian Purchaser of all or
substantially all of the property used in a commercial activity that forms all
or a part of a business carried on by Amcast Canada.
4.2 Authorization of Agreement; No Conflict.
(a) Each Seller has all requisite power and authority to enter into this
Agreement and each other agreement and instrument to be executed by a Seller in
connection herewith and to consummate and perform the transactions contemplated
hereby and thereby. This Agreement and each other agreement and instrument to be
executed by a Seller in connection herewith have been (or upon execution shall
have been) duly executed and delivered by the applicable Seller, have been duly
authorized by all necessary corporate action and constitute (or upon execution
shall constitute) legal, valid and binding obligations of the applicable Seller,
enforceable against the applicable Seller in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other Laws relating to or affecting the rights and remedies of creditors
generally and to general principles of equity (regardless of whether considered
in a proceeding in equity or at law), and no other corporate actions or
proceedings on the part of any Seller are necessary to authorize the execution,
delivery and performance by each Seller of this Agreement and each other
agreement and instrument to be executed by a Seller in connection herewith.
9
(b) Except as set forth in Schedule 4.2, and subject to obtaining the
Consents set forth on Schedule 4.13, neither the execution and delivery of this
Agreement by Sellers and each other agreement and instrument to be executed by a
Seller in connection herewith, nor the consummation and performance of the
transactions contemplated herein or therein shall result in a violation or
breach of, or constitute a default under (i) the articles of incorporation or
bylaws (or analogous documents) of any Seller, (ii) any term or provision of any
Material Contract or other contract, indenture, note, mortgage, bond, security
agreement, loan agreement, guaranty, pledge, or other agreement, instrument or
document to which any Seller is a party or by which any Seller or its assets are
bound, (iii) any judgment, decree, order or award of any court, Government or
arbitrator by which any Seller is bound, (iv) any Law applicable to any Seller
or (v) any Permit.
4.3 Acquired Assets. Except as set forth in Schedule 4.3, each Seller is,
or at the Closing shall be, the lawful owner of each of the Acquired Assets
owned by that Seller in the Business, free and clear of all Liens (other than
Permitted Liens). Except for Excluded Assets and except as set forth on Schedule
4.3, there are no assets or properties used primarily in the operation of the
Business as currently conducted and owned by any Person other than the Sellers
that shall not, as of the Closing Date, be leased or licensed to Purchaser under
a valid, current lease or license arrangement included among the Contracts or
other Acquired Assets. Immediately prior to the Closing, Sellers shall have good
and valid title to all of the Acquired Assets free and clear of all Liens (other
than Permitted Liens). The tangible Acquired Assets shall be in the possession
of a Seller at Closing or at such other locations set forth on Schedule 4.3.
Except as set forth on Schedule 4.3, there is no existing contract, agreement,
or commitment with, option or right of, or commitment to any Person to acquire
any of the Acquired Assets or any interest therein other than contracts entered
into in the Ordinary Course of Business for the sale of inventory and other than
the sale or other disposition of any other assets not, taken as a whole,
material to the operation of the Business as presently conducted in the Ordinary
Course of Business. None of the Acquired Assets are located at Amcast's facility
located in Dayton, Ohio.
4.4 Financial Statements. Sellers have made available to the Buying Parties
copies of Amcast's audited consolidated balance sheets as at August 31, 2003 and
August 31, 2002, and related consolidated audited statements of operations,
shareholders' equity and cash flows for each of the three years in the period
ended August 31, 2003 (the "Audited Financial Statements"). The Audited
Financial Statements include the opinion of Ernst & Young LLP, independent
certified public accountants, that such financial statements present fairly, in
all material respects, the consolidated financial position of Amcast and
subsidiaries as at their respective dates and the consolidated results of their
operations and cash flows for each of the three years in the period ended August
31, 2003, in conformity with GAAP. Sellers also have made available to Purchaser
copies of the unaudited balance sheets of the Business as at August 31, 2003,
August 31, 2002, and May, 31, 2004 (the "Unaudited Balance Sheets"), and the
unaudited statements of income of the Business for the 12 months then ended, as
to the August 31 statements, and the nine months then ended, as to the April 30
statement (such unaudited statement of income, together with the Unaudited
Balance Sheets, being collectively referred to as the "Unaudited Financial
Statements"). Except for footnotes, normal year-end adjustments and as set forth
in Schedule 4.4, the Unaudited Financial Statements have been prepared in
accordance with GAAP, have been prepared in accordance with the same
methodologies, assumptions and accounting practices used to prepare the Audited
Financial Statements and present fairly, in all material respects, the financial
condition of the Business as at the date thereof and the results of operations
of the Business for the periods then ended. The Audited Financial Statements and
the Unaudited Financial Statements are collectively referred to in this
Agreement as the "Financial Statements." Except as set forth on Schedule 4.4
since April 30, 2004, there has been no material adverse change to the financial
condition, results of operations, business, properties, assets or liabilities of
the Business, taken as a whole.
10
4.5 Real Property and Leaseholds. Except as set forth in Schedule 4.5:
(a) Each Seller has or will have as of the Closing Date good and valid
title to the Owned Real Property shown on Schedule 1.1(l) as owned by that
Seller, free and clear of all Liens (other than Permitted Liens).
(b) All Facility Leases are listed in Schedule 1.1(h). The interests of the
applicable Seller in and under each Facility Lease to which it is a party are or
will be as of the Closing Date free and clear of Liens (other than Permitted
Liens) and except as set forth on Schedule 1.1(h) subject to no present Action
or to Sellers' Knowledge any threatened Action.
(c) Except as set forth on Schedule 4.5, the Real Property constitutes all
real property used in the Business other than the Excluded Assets. Except for a
Seller, there are no Persons in possession or occupancy of any part of the Real
Property or the Facilities or who have possessory rights with respect to any
part of the Real Property or the Facilities.
(d) Each parcel of Real Property has adequate access to the existing roads
and other public rights of way for the operation of the Business as presently
conducted.
(e) (i) The present use, occupancy and operation of the Real Property, and
all aspects of the improvements to the Real Property (the "Real Property
Improvements"), are in compliance with all applicable Laws, except where the
lack thereof has not had or would not reasonably be expected to have a Material
Adverse Effect; (ii) no Seller has received any written notice during the prior
three years of any alleged violations of or liability under any applicable Law
or any Government having jurisdiction over any part of the Real Property or the
Real Property Improvements or the operation of any part of the Real Property or
the Real Property Improvements that has had or would reasonably be expected to
have a Material Adverse Effect; and (iii) except as disclosed by surveys thereof
provided by Sellers to the Buying Parties, all Real Property Improvements are
located within the lot lines (and within the mandatory set-backs from such lot
lines established by applicable Law or otherwise) and not over areas subject to
easements or rights of way.
11
(f) All material certificates of occupancy and other permits and approvals
required with respect to the Real Property Improvements and the use, occupancy
and operation thereof have been obtained and paid for and are currently in
effect.
(g) No portion of the Real Property is subject to any classification,
designation or determination of any Government or pursuant to any Law that would
reasonably be expected to materially restrict the current use, occupancy or
operation of the Real Property or the Real Property Improvements in connection
with the Business as currently conducted. There is no existing, pending, or, to
Sellers' Knowledge, threatened condemnation or other taking of all or any part
of the Real Property or the Real Property Improvements. No Seller is a party to
any lease or rental agreement with respect to any Real Property (whether as a
landlord or a tenant) except the Facility Leases.
4.6 Tangible Personal Property Other Than Inventory.
(a) Except as set forth in Schedule 4.6(a), all of the machinery,
equipment, vehicles and other items of tangible personal property included among
the Acquired Assets (other than Inventory and Supplies), or which are leased by
a Seller pursuant to a Contract, have been operated by Sellers in material
conformity with all applicable Laws, manufacturer's operating manuals,
manufacturer's warranties, and insurance requirements.
(b) Except as set forth in Schedule 4.6(b), to Sellers' Knowledge, all
lessors of all machinery, equipment and other tangible personal property leased
to a Seller pursuant to a Contract have performed and satisfied in all material
respects their respective duties and obligations under such Contracts.
(c) The tangible assets listed in Schedule 4.6(c) or subject to any of the
equipment leases or other leases listed on Schedule 4.6(c) constitute all of the
tangible assets (other than Inventory and Supplies) included in the Acquired
Assets that have a per-item book value in excess of $100,000.
(d) Except as set forth on Schedule 4.6(d), All tangible assets (other than
Inventory and Supplies) included in the Acquired Assets or that are the subject
of leases included in the Acquired Assets that are material to the operation of
the Business are in normal operating condition and repair, subject to ordinary
wear, tear and maintenance and have been operated or used by Sellers in material
compliance with the requirements of the Occupational Safety and Health Act.
4.7 Intellectual Property Assets. Except as set forth on Schedule 4.7 or
except as may pertain to the Excluded Assets:
(a) Sellers own or possess, or have the right to use, or will own or
possess, or have the right to use as of the Closing Date, free and clear of all
Liens (other than Permitted Liens), all Intellectual Property (other than any
Intellectual Property that is an Excluded Asset) that is material to the
operation of the Business as currently conducted. There are no Intellectual
Property rights of a Seller (other than any such rights included in the Excluded
Assets) that are material to the operation of the Business as currently
conducted that Purchaser will not acquire at Closing. Schedule 4.7 sets forth an
accurate and complete list of (i) all licenses, sublicenses and other agreements
pursuant to which another Person is authorized to use any Intellectual Property
of a Seller included in the Acquired Assets and (ii) all Contracts pursuant to
which a Seller is authorized to use any other Person's Intellectual Property
that is material to the operation of the Business as currently conducted (other
than commercial software or assets included in the Excluded Assets). Schedule
1.1(k) sets forth an accurate and complete list of all patents, patent
applications, registered copyrights, copyright applications, registered
trademarks and service marks and trademark and service xxxx applications of
Sellers relating to Intellectual Property used by Sellers in the Business other
than the Excluded Assets.
12
(b) Except as set forth on Schedule 4.7, to Sellers' Knowledge, the
operation of the Business as currently conducted, including the design,
development, use, import, manufacture and sale of the products, technology and
services of Sellers in the Business, does not infringe or misappropriate the
Intellectual Property of any other Person in any material respect. Except as set
forth on Schedule 4.7, there is no Action of any nature currently pending or, to
Sellers' Knowledge, threatened, alleging unauthorized use, disclosure,
infringement, misappropriation or other violation of any Intellectual Property
of any other Person by any Seller in the conduct of the Business.
(c) No Seller has entered into any arrangements granting exclusive rights
to any person (other than another Seller) in any Intellectual Property of a
Seller (other than any Intellectual Property that is an Excluded Asset) used in
or related to the Business. To Sellers' Knowledge, there is no unauthorized use,
disclosure, infringement or misappropriation by another Person of any
Intellectual Property of a Seller (other than any Intellectual Property that is
an Excluded Asset) that is material to the operation of the Business. To
Sellers' Knowledge, there has been no breach of any contract, license,
sublicense or agreement pertaining to Intellectual Property of a Seller (other
than any Intellectual Property that is an Excluded Asset) used in or related to
the Business, whether involving the right of a Seller to use the Intellectual
Property of another Seller or another Person or the right of another Person to
use the Intellectual Property of a Seller. There are no pending or, to Seller's
Knowledge, threatened Actions of any nature affecting Intellectual Property of a
Seller (other than any Intellectual Property that is an Excluded Asset) used in
or related to the Business. During the last three years no Seller has commenced
any Action with any court, Government, arbitration panel or mediator against any
Person for interfering with, infringing on, misappropriating or otherwise coming
into conflict with any Intellectual Property of a Seller (other than any
Intellectual Property that is an Excluded Asset) used in or related to the
Business that is pending.
(d) Each Seller has complied in all material respects with the terms of any
contract to which that Seller is a party respecting Listed Intellectual Property
Assets used in or related to the Business and, to Sellers' Knowledge, each other
party to such contract has complied in all material respects with such terms.
(e) To Sellers' Knowledge, all Listed Intellectual Property Assets and all
other trademarks and service marks of Sellers included in the Acquired Assets
that are material to the operations of the Business as currently conducted,
including those marks listed in Section 1.1(n), are valid and enforceable and
have not been abandoned, either by a Seller or a predecessor-in-interest. To
Sellers' Knowledge, all Intellectual Property of Sellers included in the
Acquired Assets (other than the Listed Intellectual Property Assets and the
aforementioned trademarks and service marks) that is material to the operation
of the Business as currently conducted is valid and enforceable.
13
4.8 Insurance. Schedule 4.8(a) lists, for each Seller, (a) each liability,
crime, fidelity, fire, product liability, workers' compensation, life and health
insurance policy owned by each Seller with respect to the Business or the
Acquired Assets, including for each policy the name of the insurer, the type of
policy and the amount of coverage and (b) all unpaid or unsettled insurance
claims made with respect to the Business in excess of $100,000 each. Except as
set forth on Schedule 4.8(b), no Seller has received any written notice from any
such insurance company within the 12 months preceding the date hereof canceling
or materially amending any insurance policies applicable to the Business or,
except in connection with or as a result of general market or industry
conditions, materially increasing the annual or other premiums payable under any
of such insurance policies, and to Sellers' Knowledge no such cancellation,
amendment or material increase of premiums is threatened.
4.9 Environmental Matters. Schedule 4.9(a) contains a list of all
environmental studies, analyses and reports prepared by or on behalf of any
Seller during the last five years that are in any Seller's possession relating
to the environmental condition of the Real Property, and Sellers have made
available to Purchaser copies of all such studies, analyses and reports, if any.
(a) Except as set forth on Schedule 4.9(b), no Seller has stored, treated,
disposed of, managed, generated, manufactured, produced, Released, emitted or
discharged any Hazardous Materials on, to, in, under or from the Real Property
in material violation of any Environmental Laws.
(b) Except as set forth on Schedule 4.9(c), each Seller has complied in all
material respects with all Environmental Laws with respect to the operation of
the Business and has obtained and complied in all material respects with all
Permits required under Environmental Laws that are necessary to operate the
Business as currently conducted.
(c) Except as set forth on Schedule 4.9(d) hereto, no Action against any
Seller to enforce or impose liability under any Environmental Laws with respect
to the operation of the Business or any Real Property is pending or, to Sellers'
Knowledge, threatened, including any Action that pertains or relates to (i) any
remedial obligations under any applicable Environmental Law, (ii) violations by
a Seller with respect to the Business of any Environmental Law, (iii) personal
injury or property damage claims relating to a Release of chemicals or Hazardous
Materials, or (iv) response, removal, or remedial costs under the Comprehensive
Environmental Response, Compensation, and Liability Act ("CERCLA") or any
similar state or provincial law.
(d) Except as set forth on Schedule 4.9(e), with respect to Permits, all
material Permits required under Environmental Laws that are necessary to the
operations of the Business have been obtained and are in full force and effect,
there is no basis for revocation or suspension of any such Permits, and Sellers
have operated the Business in accordance with the representations and conditions
made or set forth in such Permits.
14
(e) Except as set forth on Schedule 4.9(f), no portion of the Real Property
is part of a site listed on the National Priorities List under CERCLA or any
similar ranking or listing under any state or provincial law.
(f) Except as set forth on Schedule 4.9(g), to Sellers' Knowledge, all
Hazardous Materials generated by Sellers and the Business have been transported,
stored, treated and disposed of by carriers or treatment, storage and disposal
facilities authorized or maintaining valid permits under all applicable
Environmental Laws.
The parties agree that the representations and warranties contained in this
Section 4.9 and, to the extent they relate to environmental matters, Sections
4.4, 4.5, 4.22 and to the extent relating to the representations and warranties
in Sections 4.4 and 4.22, Section 4.30 are the only representations and
warranties of Sellers that pertain to Environmental Laws.
4.10 Employment Matters.
(a) Schedule 4.10(a) contains a true, complete and accurate list of each
Employee, together with each Employee's title or job description and work
location. Sellers have separately delivered to Purchaser a list of each
Employee's annualized salary or hourly wage rate for the 2004 calendar year.
(b) Except as set forth in Schedule 4.10(b):
(i) No Seller is a party to any collective bargaining or similar agreement
with respect to Employees other than the Union Contract and, other than with
respect to the Union Contract, during the last 36 months no Seller has made any
commitment to or conducted any negotiation or discussion with any labor union or
employee association with respect to the Employees and, to Sellers' Knowledge,
there is no current attempt to organize, certify or establish any labor union or
employee association with respect to the Employees.
(ii) Each Seller is in compliance in all material respects with all Laws
applicable to the Business or the Employees with respect to employment and
employment practices, terms and conditions of employment, wages and hours, and
occupational safety and health, and is not engaged in any unfair labor or unfair
employment practices.
(iii) There is no unfair labor practice charge or complaint against any
Seller or an Affiliate of any Seller involving or related to Employees pending
(with service of process having been made, or written notice of investigation or
inquiry having been served, on any Seller or any of its Affiliates) or, to
Sellers' Knowledge, threatened (or pending without service of process having
been made, or written notice of investigation or inquiry having been served, on
any Seller or any of its Affiliates), before the National Labor Relations Board
or any court, agency or tribunal.
(iv) There is no labor strike, or other material dispute, slowdown or
stoppage pending against any Seller involving or related to Employees.
(v) Except relating to the Union Contract, no union certification or
decertification petition has been filed (with service of process having been
made on any Seller or any of its Affiliates) or, to Sellers' Knowledge,
threatened (or pending without service of process having been made on any Seller
or any of its Affiliates), that relates to Employees, and no union authorization
campaign has been conducted, in each case, within the past 24 months.
15
(vi) No grievance proceeding or arbitration proceeding arising out of or
under any collective bargaining agreement is pending (with service of process
having been made on any Seller or any of its Affiliates), or to Sellers'
Knowledge, threatened (or pending without service of process having been made on
a Seller or any of its Affiliates), against any Seller or any Affiliate of a
Seller involving or related to Employees.
(vii) There are no charges, investigations, administrative proceedings or
formal complaints of discrimination (including discrimination based on sex,
sexual harassment, age, marital status, race, national origin, sexual
preference, handicap, disability or veteran status) pending (with service of
process having been made, or written notice of investigation or inquiry having
been served, on any Seller or any of its Affiliates) or, to the Sellers'
Knowledge, threatened (or pending without service of process having been made,
or written notice of investigation or inquiry having been served, on a Seller or
any of its Affiliates), before the Equal Employment Opportunity Commission or
any federal, provincial, state or local agency, commission, tribunal or court
against any Seller or any Affiliate of a Seller involving or related to
Employees.
(viii) There are no charges, investigations, administrative proceedings or
formal complaints of overtime or minimum wage violations involving the Business
pending (with service of process having been made, or written notice of
investigation or inquiry having been served on any Seller or any of its
Affiliates) or, to Sellers' Knowledge, threatened (or pending without service of
process having been made, or written notice of investigation or inquiry having
been served, on a Seller or any of its Affiliates), before the Department of
Labor or any other federal, state, provincial or local agency, commission,
tribunal or court against any Seller or any Affiliate of a Seller involving or
related to Employees.
(ix) There are no citations, investigations, administrative proceedings or
formal complaints of violations of local, state, provincial or federal
occupational safety and health laws pending (with service of process having been
made, or written notice of investigation or inquiry having been served, on any
Seller or any of its Affiliates) or, to Sellers' Knowledge, pending (without
service of process having been made, or written notice of investigation or
inquiry having been served, on a Seller or any of its Affiliates) before the
Occupational Safety and Health Administration or any federal, state, provincial
or local agency or court against any Seller or any Affiliate of a Seller
involving or related to the Business.
(c) The Employees are sufficient to operate the Business in the Ordinary
Course of Business. Except as set forth on Schedule 4.10(c), during the last
year, other than changes in the Ordinary Course of Business, no material changes
have occurred in the work force of the Business, including material employee
terminations, material employee transfers in or out, material employee leasing
arrangements, material reallocations of duties, and material outsourcing of
duties or functions.
16
The parties agree that the representations and warranties contained in this
Section 4.10 and, to the extent they relate to employment matters, Sections 4.4,
4.22 and to the extent relating to the representations and warranties in
Sections 4.4 and 4.22, Section 4.31 are the only representations and warranties
of Sellers that pertain to employment matters.
4.11 Employee Benefit Plans.
(a) Schedule 4.11 contains a true, complete and accurate list of all Seller
Benefit Plans in which Employees participate. Sellers have made available for
review by Purchaser copies of all Seller Benefit Plans in which Employees
participate.
(b) Except as set forth on Schedule 4.11, no pension benefit plan as
defined in section 3(2) of ERISA that is maintained or contributed to by any
Seller or any of its ERISA Affiliates, or with respect to which a Seller or an
ERISA Affiliate of a Seller may have any liability, had an accumulated funding
deficiency as defined in section 302 of ERISA and section 412 of the Code,
whether or not waived, as of the last day of the most recent Plan Year of the
plan ending on or prior to the Closing Date.
(c) Except as set forth on Schedule 4.11, no Seller or any entity that was
at any time during the last six years an ERISA Affiliate of a Seller has ever
maintained, contributed to, had an obligation to contribute to, or incurred any
liability with respect to a Multiemployer Plan.
(d) To the extent applicable, all Seller Benefit Plans have been operated
in compliance with the Consolidated Omnibus Budget Reconciliation Act ("COBRA").
(e) Except as set forth on Schedule 4.11, within the last three years, no
Seller or ERISA Affiliate has received a written notification pursuant to
Section 4242(a) of ERISA or Section 4245(e) of ERISA concerning any Seller
Multiemployer Plan.
(f) All contributions required to be made by Sellers with respect to Seller
Multiemployer Plans have been timely made.
(g) The aggregate liability of Sellers and their ERISA Affiliates to the
I.A.M. Multiemployer Plan had they completely withdrawn therefrom as of the end
of the most recent Plan Year would not have exceeded $250,000.
(h) No Lien on any Acquired Assets (other than Permitted Liens) imposed
under the Code or ERISA exists on account of any Seller Benefit Plan.
4.12 Contracts.
(a) All Material Contracts are listed on Schedule 4.12. A "Material
Contract" means a Contract (i) the term of which extends beyond the one-year
anniversary date of this Agreement and obligates a Seller with respect to the
Business to future expenditures of $100,000 or more; (ii) that obligates a
Seller with respect to the Business to future expenditures of $100,000 or more
(or assets having that value) during any 12-month period; or (iii) that entitles
a Seller with respect to the Business to future receipts of $100,000 or more (or
assets having that value) during any 12-month period; (iii) that is an
employment, severance or change of control contract between a Seller and any
Employee; (iv) that materially restricts any Seller's ability to conduct the
Business in any geographic region; (v) relating to any joint venture,
partnership, strategic alliance or similar relationship of the Business; or (vi)
the lack of which would have a Material Adverse Effect.
17
(b) Each Material Contract is in full force and effect and is the valid and
binding obligation of the Seller to which it is a party and, to Sellers'
Knowledge, the other parties to it. Except as set forth on Schedule 4.12, no
Seller is in breach of any Contract and, to Sellers' Knowledge, no other party
to any Contract is in material breach of any Contract. The Sellers have provided
Purchaser with true, complete and correct copies of all written Material
Contracts and all extensions, amendments and schedules to them and a written
description of all Material Contracts that are not in writing. No Seller has
affirmatively waived any material right under any Contract. Without limiting the
foregoing, each Seller is in compliance in all material respects with all
purchase orders and sales orders constituting Contracts to the extent it is
obligated to perform under those orders. Schedule 4.12 includes a list of all
purchase orders and sales orders relating to the Business as of a date within
three business days of this Agreement. No Seller has, either expressly or by
operation of law, assumed or undertaken any liability of any other Person that
would reasonably be expected to require any expenditure by a Buying Party of
$100,000 or more after the Closing.
4.13 Consents. The execution and delivery of this Agreement by Sellers and
the consummation and performance of the transactions contemplated by this
Agreement by Sellers (a) do not require the Consent of any Person or Government,
except as specified in Schedule 4.13, and (b) do not require the consent or
approval of any of Sellers' shareholders or board of directors, except such as
have been obtained and are in full force and effect.
4.14 [Reserved]
4.15 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, (a) ALL ACQUIRED
ASSETS ARE BEING CONVEYED HEREUNDER ON AN "AS IS, WHERE IS" BASIS (OTHER THAN
FOR MANUFACTURERS' WARRANTIES, IF ANY, INCLUDED IN THE ACQUIRED ASSETS) AND (b)
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SELLERS MAKE NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACQUIRED ASSETS OR THE
BUSINESS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND WARRANTIES AS TO THE PROSPECTS OF THE BUSINESS AFTER THE CLOSING.
ALL OF SUCH EXPRESS AND IMPLIED WARRANTIES AND REPRESENTATIONS ARE HEREBY
EXCLUDED, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH
HEREIN.
4.16 Inventory. Schedule 4.16 is a list of all Inventory as of a date
within three business days of this Agreement. All Inventory as of April 30,
2004, is reflected on the Unaudited Balance Sheet of the Business as of April
30, 2004, that has been delivered to the Buying Parties pursuant to Section 4.4.
All Inventory as of the Closing Date will, as of the Closing Date, be reflected
on the books and records of the Business to be used to determine the Working
Capital as of the Closing Date pursuant to Section 2.4(b). Subject to any
reserves (including reserves for shrink and obsolescence) included in the
Financial Statements or the Final Closing Working Capital Statement, all
Inventory as of the Closing Date will, as of the Closing Date, consist of items
of Inventory useable or saleable in the Ordinary Course of Business, except for
customary amounts of raw materials that cannot be incorporated into finished
products and items of excess and obsolete materials and materials of
below-standard quality that have been written off or written down to Sellers'
best estimate of net realizable value. Except as set forth on Schedule 4.16: (a)
the Inventory does not include any materials held by a Seller on consignment
from any third parties; (b) none of the Inventory is in the possession of
others, except Inventory in transit to a Seller in the Ordinary Course of
Business and Inventory provided to sales representatives and distributors in the
Ordinary Course of Business; and (c) the Inventory is not subject to any claim
with respect to the use of materials held on consignment. All products
manufactured (whether or not completed) or sold by Sellers with respect to the
Business before the Closing will be in compliance with all warranties of any
Seller with respect to that product, except to the extent a Purchaser or any
Affiliate of a Purchaser finishes, after the Closing Date, any product not
completed as of the Closing Date.
18
4.17 Products Liability. Except as set forth on Schedule 4.17, there has
not been any, and currently there is no pending or, to Sellers' Knowledge,
threatened Action against any Seller with respect to, any Products Liability
arising at any time with respect to any product manufactured or distributed by
any Seller with respect to the Business on or before the Closing Date. For the
purposes of this Agreement, "Products Liability" means any liability to which
any Seller has or is reasonably expected to become subject insofar as such
liability is based upon any express or implied representation or warranty made
by a Seller to a customer of the Business prior to the Closing Date or relates
to a claim that any product manufactured or distributed by any Seller in the
Business prior to the Closing Date was or is defective.
4.18 Customers and Suppliers.
(a) Schedule 4.18(a) sets forth (i) the names of all customers of each
Seller with respect to the Business that ordered goods and services from the
Business with an aggregate value for each such customer of $1,000,000 or more
during the 12-month period ended April 30, 2004, and (ii) the amount for which
each such customer was invoiced during that period. As of the date of this
Agreement and to Sellers' Knowledge, no such customer has notified any Seller
that it (A) will materially reduce purchases of products from the Business or
(B) has ceased, or will cease, to purchase products from the Business.
(b) Schedule 4.18(b) sets forth (i) the names of all suppliers from which
the Business ordered raw materials, supplies, merchandise and other goods and
services with an aggregate purchase price for each such supplier of $1,000,000
or more during the 12-month period ended April 30, 2004, and (ii) the amount for
which each such supplier invoiced the Business during such period. To Sellers'
Knowledge, no such supplier has notified any Seller that it (A) will materially
reduce the amount of raw materials or equipment available for purchase by the
Business, or (B) has ceased, or will cease, to sell raw materials or equipment
to the Business.
19
4.19 Litigation. Except as set forth in Schedule 4.19, there is no Action
pending, or, to Sellers' Knowledge, threatened, against or affecting any Seller
with respect to the Business or any of the Acquired Assets that would reasonably
be expected to (a) enjoin, restrict or prohibit the transfer of any of the
Acquired Assets pursuant to this Agreement, (b) prevent any Seller from
fulfilling all of its obligations under this Agreement or arising under this
Agreement or any other agreement executed and delivered pursuant to this
Agreement, or (c) to have a Material Adverse Effect. Except as set forth in
Schedule 4.19, there is no suit, complaint, claim or petition filed with a court
of any Government or any mediation or arbitration proceeding pending or, to
Sellers' Knowledge, threatened against or affecting any Seller with respect to
the Business or any of the Acquired Assets.
4.20 Taxes. Except as set forth on Schedule 4.20:
(a) Each Seller has filed, or caused to be filed in a timely manner, all
Tax Returns required to be filed on or before the date of this Agreement or the
Closing Date, as applicable (taking into account any and all extensions), and
all of those Tax Returns are complete and correct.
(b) All Taxes due and payable or claimed to be due and payable from each
Seller have been timely paid in full or are not yet delinquent. Since August 31,
2003, no Seller has incurred any Taxes other than in the Ordinary Course of
Business.
(c) Each Seller has complied with all applicable Laws relating to the
withholding of Taxes (including withholding of Taxes pursuant to Sections 1441
and 1442 of the Code or similar provisions under any foreign Laws), has, within
the time and in the manner prescribed by applicable Law, withheld and paid over
to the proper Government all amounts required to be so withheld and paid over
under all applicable Law and has, within the time and in the manner prescribed
by those laws, filed all Tax returns with respect to the withholding of Taxes.
(d) Except for liens for real and personal property Taxes not yet
delinquent, there are no Liens (other than Permitted Liens) for Taxes on any of
the Acquired Assets.
(e) No Seller has any liability for the Taxes of any other Person by
contract or as transferor or successor, or otherwise, other than for the
remittance of sales taxes collected as required by law.
(f) No deficiency or claim has been formally proposed, asserted or assessed
or, to Sellers' Knowledge, threatened with regard to any Taxes of a Seller or
Tax Returns including or required to be filed by a Seller which has not been
resolved and paid in full.
(g) No audit or other administrative proceeding or court proceeding is
pending and no written notification of such proceedings has been received by any
Seller with regard to any Taxes of a Seller or Tax Returns required to be filed
by or including a Seller.
(h) Neither Amcast with respect to the Business nor any Seller (i) is a
party to any contract, agreement or arrangement that could as a result of the
transactions contemplated by this Agreement result, separately or in the
aggregate, in the payment of any "excess parachute payments" within the meaning
of Section 280G of the Code or (ii) has made any such excess parachute payments,
and no payment by a Purchaser under any Contract assumed by a Purchaser under
Section 2.2 will, separately or in the aggregate, constitute an "excess
parachute payment" within the meaning of Section 280G of the Code.
20
(i) No property of any Seller is property that a Seller is or will be
required to treat as being owned by another Person pursuant to the provisions of
Section 168(f)(8) of the Code (as in effect before amendment by the Tax Reform
Act of 1986) or is "tax-exempt use property" within the meaning of Section
168(h) of the Code.
(j) No Seller, other than Amcast Canada, is a "foreign person" within the
meaning of Section 1445 of the Code.
(k) No asset included in the Acquired Assets conveyed by Amcast Canada to
Canadian Purchaser pursuant to this Agreement will be a U.S. real property
interest as that term is defined in Section 897(e) of the Code.
4.21 Agreements and Transactions with Related Parties. Except as set forth
in Schedule 4.21, none of the following Persons is a party to any Contract with
any Seller: (a) any Person (including another Seller) owning, or formerly
owning, beneficially or of record, directly or indirectly, a five percent or
more beneficial interest in capital stock of any Seller, (b) any other Seller,
(c) any employee, director or officer of any Seller or (d) any Person related by
blood, adoption or marriage to any individual described in items (a) or (c)
above (any or all of the foregoing being herein referred to as "Related
Parties"). Except as set forth in Schedule 4.21, the terms of conditions of each
Contract between a Seller and a Related Party are, in all material respects,
consistent with the terms and conditions that would have been obtainable at the
time entering into it in a comparable arm's-length transaction. Except as set
forth on Schedule 4.21, no Related Party has received any loans from or is
otherwise a debtor, or has made any loans to or is otherwise a creditor of, any
Seller, other than any such loans or debts that will be settled on or before
Closing or that are not included in the Acquired Assets or Assumed Liabilities.
Except as set forth in Schedule 4.21, no Related Party owns, directly or
indirectly, in whole or in part, any Permits, any real property leased to the
applicable Sellers under the Facility Leases or other property that is leased or
licensed to Seller for use primarily in the operation of the Business as
currently conducted. No Related Party has commenced any Action that is pending
or, to Sellers' Knowledge, threatened against any Seller with respect to the
Business. Except as set forth in Schedule 4.21, there are no contracts,
agreements or rights between a Seller and any of its Affiliates (including
another Seller) that are reasonably necessary to operate the Business. Schedule
1.2(c) contains a list of all assets relating to the Business that are subleased
by any Seller to any Affiliate of a Seller.
4.22 Absence of Changes. Except as provided for in this Agreement or as set
forth in Schedule 4.22 or any other Schedule in the Disclosure Letter, since May
31, 2004:
(a) no event has occurred that has had or would reasonably be expected to
have a Material Adverse Effect;
(b) the Business has been operated in the Ordinary Course of Business;
21
(c) other than in the Ordinary Course of Business, or in connection with
the transactions contemplated by this Agreement for purposes of retention of
employees, there has been no (i) increase in the compensation or in the rate of
compensation or commissions payable or to become payable by Seller to any
Employee earning $50,000 or more per annum, (ii) Employee hired at a salary in
excess of $50,000 per annum, or (iii) commitment to pay any new bonus, profit
sharing or other extraordinary compensation to any Employee;
(d) no liability or obligation (whether absolute, accrued, contingent or
otherwise) in excess of $100,000 has been incurred by any Seller with respect to
the Business, other than liabilities incurred in the Ordinary Course of Business
since April 30, 2004 or reflected in the Final Closing Working Capital
Statement;
(e) no Seller has (i) paid any judgment in excess of $100,000 resulting
from any Action against such Seller relating to the Business or the Acquired
Assets or (ii) made any payment to any Person in excess of $100,000 in
settlement of any Action against such Seller relating to the Business or the
Acquired Assets; and
(f) there has been no sale, transfer, lease or other disposition of any
assets of any Seller that are necessary for or primarily used in the Business,
other than sales of Inventory in the Ordinary Course of Business and any sales
or other dispositions of any other asset in the Ordinary Course of the Business
that is not, in the aggregate, material to the current operation of the
Business.
4.23 Compliance with Laws. Schedule 4.23 contains a list of all Permits
that are material to the operation of the Business as currently conducted.
Except as set forth on Schedule 4.23, each Permit listed on Schedule 4.23 is
valid and current. Except as set forth on Schedule 4.23, there has been no
violation of any of the requirements pertaining to those Permits. Except as set
forth on Schedule 4.23, the Business has been, during all applicable statute of
limitations periods, and is conducted in compliance all material respects with
all applicable Laws.
4.24 Utilities. To Sellers' Knowledge, except as set forth on Schedule
4.24, each parcel of Real Property at which the Business is conducted has access
to utilities (including electric, natural gas, water, sewer, telephone, and
similar services but excluding electronic data transmission services) adequate
to operate the Business operated at such Facility in the manner currently
conducted.
4.25 Receivables. Subject to any reserves set forth in the Financial
Statements or the Final Closing Working Capital Statement: (a) all Accounts
Receivable represent or shall represent valid obligations arising from sales
actually made or services actually performed in the Ordinary Course of Business
and are or at Closing shall be subject to no Liens (other than Permitted Liens);
(b) to Sellers' Knowledge, except as set forth on Schedule 4.25, there is no
claim, or right of set-off, other than returns in the Ordinary Course of
Business, under any contract with any obligor of an Accounts Receivable relating
to the amount or validity of such Account Receivable; and (c) to Sellers'
Knowledge, the Accounts Receivable are collectible using commercially reasonable
collection practices, subject to normal write-offs for bad debt consistent with
past practices of the Business. Schedule 4.25 contains an accurate list of all
Accounts Receivable that have been factored to third parties by any of the
Sellers.
22
4.26 No Broker's Fees. Neither Sellers nor anyone acting on Sellers' behalf
have incurred any liability or obligation to pay fees or commissions to any
broker, finder or agent with respect to the transactions contemplated by this
Agreement for which Purchaser or any of Affiliate of Purchaser shall be liable.
4.27 Sufficiency of Assets. Other than the Excluded Assets, the Acquired
Assets constitute all of the assets owned by Sellers that are used primarily in
the operation of the Business as currently conducted and are sufficient to
operate the Business as currently conducted.
4.28 No other Representations and Warranties. No Seller has made, and no
Seller shall be deemed to have made, any representation or warranty other than
as expressly made by Sellers in this Section 4. Without limiting the generality
of the foregoing, and notwithstanding any representations and warranties made by
Sellers in this Section 4, no Seller makes any representation or warranty with
respect to (a) any projections, estimates or budgets delivered or made available
to Purchasers or their Representatives at any time with respect to future
revenues, expenses or expenditures or future results of operations, or (b)
except as expressly covered by a representation and warranty contained in this
Section 4, any other information or documents (financial or otherwise) made
available to Purchasers or their Representatives before or after the date of
this Agreement.
4.29 Books and Records. To Sellers' Knowledge, the books and records of
Sellers accurately and fairly reflect the transactions and the assets and
liabilities of Sellers with respect to the Business.
4.30 Backlog. To Sellers' Knowledge, all outstanding customer or
distributor purchase orders for products of the Business that constitute
Material Contracts (the "Backlog Orders") have been entered at prices and on
terms and conditions consistent with the normal practices of the Business. To
Sellers' Knowledge, no Seller has been informed by any customer or distributor
that any Backlog Order is likely to be canceled or terminated before its
completion.
4.31 Other Information. The representations and warranties provided by
Sellers in this Agreement together with the Disclosure Letter do not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements and facts contained in such representations and
warranties and the Disclosure Letter, in light of circumstances under which they
are made, not false or misleading.
5. CERTAIN UNDERSTANDINGS AND AGREEMENTS OF THE PARTIES.
5.1 Reasonable Efforts; Further Assurances. Each party shall use its
reasonable efforts to take or cause to be taken all actions necessary, proper or
advisable to fulfill and perform its obligations in respect of this Agreement,
or otherwise to consummate and make effective the transactions contemplated
hereby and to cause, in the case of Sellers, the conditions set forth in
Sections 6.1 and 6.2, and, in the case of Purchasers, the conditions set forth
in Sections 6.1 and 6.3, to be satisfied. Without limiting the generality of the
foregoing, each party shall use its reasonable efforts to respond as promptly as
practicable to all inquiries and requests resulting from its pre-merger
notification filed under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1965, as amended (the "HSR Act"). Each party shall furnish to the other parties
and keep the other parties informed concerning the status of its filings and its
communications with any Government with respect to its filings. From time to
time after the Closing, each party shall execute and deliver any documents and
take any other actions that another party reasonably requests to confirm or
effect the consummation of the transactions contemplated by this Agreement.
23
5.2 Access.
(a) From the date of this Agreement to the Closing Date, each Seller shall
give Purchasers and their authorized Representatives access to the Acquired
Assets and the Facilities for the purpose of preparing for Closing; provided,
however, that Purchasers shall not unreasonably interfere with the normal
operations of the Business and each Seller's relationship with its Employees.
(b) Purchasers shall, at and for seven years after the Closing Date, afford
promptly to Sellers and their agents reasonable access during normal business
hours, upon reasonable notice, to the properties, employees and books and
records of the Business, to the extent reasonably necessary to permit Sellers to
determine any matter relating to or arising during any period ending on or
before the Closing Date. If Purchasers propose to destroy or otherwise dispose
of any records relating to the Business, consistent with its written document
retention policy, during such seven-year period, Purchasers shall first notify
Sellers in writing, and afford Sellers the opportunity, for a period of at least
90 days following the date of the notice, to take custody of the records or make
extracts from them or copies of them.
(c) Each Seller shall, at and for seven years after the Closing Date,
afford promptly to Purchasers and their agents reasonable access during normal
business hours, upon reasonable notice, to the properties, employees and books
and records of the Business, to the extent reasonably necessary to permit
Purchasers to determine any matter relating to or arising during any period
ending on or before the Closing Date. If a Seller proposes to destroy or
otherwise dispose of any records relating to the Business during such seven-year
period, consistent with its written document retention policy, that Seller shall
first notify Purchasers in writing, and afford Purchasers the opportunity, for a
period of at least 90 days following the date of the notice, to take custody of
the records or make extracts from them or copies of them.
5.3 Covenant Not to Compete. Each Seller covenants and agrees that it shall
not, for the period ending five years after Closing, participate, directly or
indirectly, in the ownership, management, financing or control of, or act as a
consultant or agent to, or furnish services or advice to, any Person that
develops, manufacturers or sells Competitive Products (a "Competitive
Business"). For purposes of this Agreement, "Competitive Products" means copper
fittings, brass plumbing products, brass casting products and aluminum
extrusions for pistons and manifolds used in automotive or air conditioning
applications. The geographic scope of the foregoing covenants is North America.
The covenants set forth in this Section shall not prohibit any Seller or its
Affiliates from, directly or indirectly, (a) continuing in any line of business
conducted directly or indirectly by that Seller or its Affiliates on the Closing
Date (other than the Business), (b) manufacturing or selling raw materials or
components used in or sold to a Competitive Business, (c) entering into any
contract with any Person for purposes primarily unrelated to a Competitive
Business, (d) making any equity investments in any publicly owned company that
conducts a Competitive Business, provided that the investment does not confer
control of more than 5% of the outstanding voting securities of such company
upon that Seller, (e) acquiring any Person that conducts a Competitive Business
with revenues of less than $100 million if that Seller or applicable Affiliate
divests itself within 12 months after such acquisition of that portion of the
business of the acquired Person that constitutes a Competitive Business, or (f)
conducting the business currently conducted by Xxx Brass Company or LBC Corp. at
the Anniston, Alabama, facility. The parties agree and intend that the time
period, geographic coverage and scope of the covenants set forth in this Section
5.3 are reasonable.
24
5.4 Accounts Receivable. Each Seller agrees to promptly forward to Parent,
on behalf of Purchasers, any monies, checks or negotiable instruments (with
appropriate endorsements) received by that Seller after the Closing Date
relating to any Accounts Receivable for a Purchaser's own account. Each Seller
hereby appoints Parent as its attorney-in-fact to endorse, cash and deposit any
monies, checks and other negotiable instruments so forwarded to Parent.
5.5 Employees.
(a) As of the Closing Date, Sellers shall terminate the employment of all
of the Employees (other than those who are on short-term disability leave). As
soon as practicable after the date of this Agreement, U.S. Purchaser shall, with
respect to Employees employed in the United States, and Canadian Purchaser
shall, with respect to Employees employed in Canada, offer employment, effective
as of the Closing, to all Persons who are or will be Employees on the day
immediately preceding the Closing Date (other than those on short-term
disability leave) and who complete Purchasers' standard application agreement
and Purchasers otherwise shall take all other actions necessary to eliminate any
obligations of Sellers under the Worker Adjustment and Retraining Notification
Act ("WARN") and any similar Laws to give any notice of the transfer of any
operations or the loss of employment or the loss of pay or benefits or to pay
any amounts in lieu of such notice. Each Employee who accepts any such offer of
employment shall be referred to herein as a "Transferred Employee." The offer of
employment, including, wages, salaries and benefits, shall be on terms
substantially similar to those terms and conditions under which the Transferred
Employees were employed immediately before the Closing Date. All union Employees
shall receive credit with respect to their employment with Purchaser, for
purposes of seniority and all other purposes under the Union Contract, for all
of the time they were employed by Sellers. Any Employee who is on short-term
disability leave as of the Closing Date shall remain employed by the Sellers
through such Employee's short-term disability leave; provided, however, that if
he or she recovers from his or her disability within the period of his or her
short-term disability leave or the six-month period following the Closing Date
(whichever is shorter), the appropriate Purchaser shall at that time make or
cause one of its Affiliates to make, an offer of employment to him or her on the
same employment terms and conditions as are applicable to similarly situated
Transferred Employees, and the appropriate Purchaser shall reimburse Sellers for
the full amount of any short-term disability leave cash compensation paid by
Sellers to such Person with respect to periods beginning with the Closing Date
until the date that such Person accepts employment with the appropriate
Purchaser; each such Person who accepts employment with a Purchaser shall also
be deemed a "Transferred Employee" as of the date of such acceptance. Except as
may be required under the Union Contract, Purchasers' commitment to offer
employment to all Employees shall not be construed as a contract of employment
and all Transferred Employees shall be employees at will except to the extent,
if any, expressly agreed in a written contract between a Purchaser and an
individual Transferred Employee.
25
(b) Except to the extent otherwise specified in Section 2.2, Sellers shall
be (i) responsible for the payment of all wages and other remuneration due to
Employees up until the Closing and (ii) liable for any claims made by Employees
and their beneficiaries under any Seller Benefit Plans.
(c) Except for the welfare benefit plans coverage required under the Union
Contract, which shall be assumed by U.S. Purchaser, welfare benefit plan
coverage of any Seller for Transferred Employees shall cease as of the Closing
and the welfare benefit plan coverage under the Purchaser's plans for
Transferred Employees shall immediately commence. Sellers shall be solely
responsible for any continuation coverage required by COBRA for Employees of any
Seller (regardless of whether they become Transferred Employees). As of the
Closing, the welfare benefit plans of the Purchaser shall be responsible for all
coverage with respect to the Transferred Employees on the basis of when the
services for the Transferred Employee that are the subject of a claim are
performed.
(d) Sellers shall retain all assets in the pension and retirement funds of
any Seller (other than the I.A.M. Multiemployer Plan), and shall distribute
pension and retirement benefits that the Transferred Employees shall become
entitled to receive from any Seller in accordance with the applicable provisions
of Law, the plan documents and the Transferred Employees' elections, as
applicable.
(e) Sellers shall retain all incentive savings plan (401(k) plan) benefits
held in the name of the Transferred Employees, if any, unless distribution is
otherwise allowed or mandated pursuant to applicable Law or the plan documents.
After Closing U.S. Purchaser shall cause to be accepted by the trustee of a
Purchaser Retirement Plan in which a Transferred Employee is eligible to
participate in a cash rollover of any eligible rollover distribution (within the
meaning of section 402(c) of the Code) of such Transferred Employee's benefit
under a Seller Retirement Plan, provided that U.S. Purchaser obtains adequate
information to provide reasonable assurance that such Seller Retirement Plan
satisfies the qualification requirements of section 401(a) of the Code. If U.S.
Purchaser does not sponsor such a Purchaser Retirement Plan as of the Closing,
it agrees to establish one as soon as reasonably practicable in light of the
U.S. Purchaser's circumstances. Any rollover described in this Section 5.5(e)
shall be accomplished in accordance with applicable Law. The parties agree to
reasonably cooperate to accomplish the rollovers described herein.
(f) With respect to events following the Closing, Purchasers shall be
responsible for sending timely and appropriate notices to all Employees required
under WARN and all other applicable Laws relating to plant or facility closings
or otherwise regulating the termination of employees. To the extent that any
liability is incurred under any such Laws based on Purchasers' failure to comply
with Section 5.5(a), this Section 5.5(f) or Purchasers' actions after the
Closing, Purchasers shall be solely and exclusively responsible for all
obligations and liabilities incurred under WARN and other such Laws relating to
this transaction.
26
(g) Unless prohibited by applicable Law, Sellers shall make available to
Purchasers records which provide information regarding employees' names, Social
Security numbers, dates of hire by a Seller, date of birth, number of hours
worked each calendar year, attendance and salary histories for all Transferred
Employees. Sellers shall not provide records pertaining to performance ratings
and evaluations, disciplinary records and medical records.
5.6 Consents. Each party shall use all commercially reasonable efforts to
obtain any Consents necessary to assignment and transfer of the Assigned Assets
to Purchaser at Closing, including any Consents required under the HSR Act. Each
party shall use its reasonable efforts to cooperate with the other parties to
obtain such Consents. If consent to a particular Acquired Asset is not obtained
or if such assignment is not permitted by Law regardless of consent, each Seller
shall use its reasonable efforts to cooperate with Purchasers (at Purchasers'
cost) in any reasonable arrangement designed to provide Purchasers all material
benefits of that Acquired Asset.
5.7 Use of Business Names by Purchasers. To the extent the trademarks,
service marks, brand names or trade, corporate or business names of any Seller
that are not included in the Acquired Assets but are used by the Business on
stationery, signage, invoices, receipts, forms, packaging, advertising and
promotional materials, product, training and service literature and materials,
computer programs or like materials included in the Acquired Assets ("Marked
Materials") or appear on Inventory at the Closing, Purchasers shall remove,
"sticker over" or obscure such trademarks, service marks, brand names or trade,
corporate or business names to the extent commercially feasible and, to the
extent not commercially feasible, may use such Marked Materials or sell such
Inventory after the Closing for a period of 120 days without altering or
modifying such Marked Materials or Inventory, or removing such trademarks,
service marks, brand names, or trade, corporate or business names, but Purchaser
shall not thereafter use such trademarks, service marks, brand names or trade,
corporate or business names in any other manner without the prior written
consent of Amcast. Purchaser shall not use, attempt to register or otherwise
seek protection for, or challenge Sellers' ownership of, such trademarks,
service marks, brand names or trade, corporate or business names. Any rights in
and to such trademarks, service marks, brand names or trade, corporate or
business names that may accrue to Purchasers or are deemed to accrue to
Purchasers subsequently by operation of Law or otherwise shall inure to the
benefit of Sellers.
5.8 Bulk Transfer Laws. The Buying Parties and Sellers hereby waive
compliance with any bulk transfer Laws applicable to the transactions
contemplated by this Agreement. The Buying Parties and Sellers shall cooperate
in securing any available exemptions from any such provisions in the United
States.
5.9 Reimbursement for Product Warranty Obligations. Any obligations assumed
by Purchaser for warranty and repair claims pursuant to this Agreement shall be
limited to Purchasers' replacement of or reimbursement for the cost of the
product and all expenses incidental to that replacement or reimbursement, such
as packing, handling and shipping costs. Sellers shall, on a Purchaser's
request, reimburse that Purchaser for its actual out of pocket costs (which
shall exclude overhead), but only to the extent the aggregate amount of such
costs exceed any amount accrued for or reserved against on the Final Working
Capital Statement, for the reimbursement for, or repair or replacement of,
product produced or in process before the Closing Date, with no profit margin.
27
5.10 Prorations. No later than five business days after the final
determination of the Working Capital of the Business under Section 2.4,
Purchasers shall reimburse Sellers for all personal and real property Taxes
relating to the Acquired Assets that are not included in the Assumed
Liabilities, were paid by a Seller before the Closing and relate to the
ownership of the Acquired Assets or the operation of the Business after the
Closing (except to the extent that any such Taxes are included as an asset in
the Final Working Capital Statement and not included as an asset in the working
capital amount as of May 31, 2004 that was used in the calculation of the Target
Working Capital). Unless otherwise an Assumed Liability and except for any
installments payable by any lessor under a Facility Lease, each Seller, as
applicable, shall pay all installments of special assessments with respect to
the Real Property that relate to the operation of the Business on or before the
Closing Date, and Purchasers shall pay all such installments that relate to the
operation of the Business after the Closing Date. Except to the extent included
in the Assumed Liabilities, all water, sewer, utility and other similar charges,
and all prepaid rent and other similar credits, affecting the Real Property
shall be prorated to the Closing Date (with Closing Date meter readings as
appropriate). The foregoing prorations shall be paid by Purchasers to Sellers,
insofar as feasible, at the Closing, or to the extent not feasible, within 30
days following the Closing, by Immediately Available Funds. Any errors or
omissions in computing prorations at the Closing, or any re-computations
required as a result of facts that become known after the Closing, shall be
corrected (and paid as specified above) as soon as practicable thereafter.
5.11 Confidentiality.
(a) Until Closing, the Buying Parties shall continue to comply with and be
subject to the terms of the Confidentiality Agreement dated November 30, 2003,
between Amcast and Purchaser (the "Confidentiality Agreement"); provided,
however, that Sections 8 and 11 of the Confidentiality Agreement are hereby
amended only to the extent necessary to permit the Buying Parties to perform its
obligations under Section 5.5 of this Agreement. The Confidentiality Agreement,
as so amended, shall terminate as of the Closing Date. If this Agreement is
terminated prior to the Closing, the Confidentiality Agreement shall be deemed
upon termination to be in full effect without regard to the amendments discussed
above, but any actions taken by the Buying Parties prior to such termination to
the extent necessary to perform their obligations under Section 5.5 shall not be
deemed a violation of Sections 8 and 11 of the Confidentiality Agreement.
(b) For a period of five years after the Closing Date and except as
otherwise required by Law, each Seller shall, and shall cause its Affiliates and
their respective Representatives to, hold in confidence and not disclose or use
(i) any proprietary or other confidential and non-public information regarding
the Purchaser disclosed to any Seller in connection with the negotiation or
preparation of this Agreement; (ii) the nature or resolution of any disputes
arising hereunder after the Closing; and (iii) any proprietary or other
confidential non-public information relating to the Acquired Assets or the
Business, except for disclosures made pursuant to this Section 5.11; provided,
however, the confidential and non-public information shall not include any
information publicly known through no fault of any Seller, independently
developed by any Seller without violation of this Section 5.11, or disclosed to
any Seller from a source not known by such Seller to be subject to any
confidentiality obligation to a Buying Party with respect to the information.
28
(c) For a period of five years after the Closing Date and except as
otherwise required by Law, the Buying Parties shall, and shall cause their
Affiliates and their respective Representatives to, hold in confidence and not
disclose or use (any proprietary or other confidential and non-public
information (excluding information included in the Acquired Assets) regarding
the Sellers disclosed to any Buying Party in connection with the negotiation or
preparation of this Agreement, except for disclosures made pursuant to this
Section 5.11; provided, however, the confidential and non-public information
shall not include any information publicly known through no fault of a Buying
Party, independently developed by a Buying Party without violation of this
Section 5.11, or disclosed to a Buying Party from a source not known by the
Buying Party to be subject to any confidentiality obligation to Sellers with
respect to the information.
(d) Nothing in this Section 5.11 shall prevent the parties from discussing
the transactions described in this Agreement with those Persons whose Consent is
required for consummation of those transactions. The parties shall exercise all
reasonable efforts to assure that those Persons keep confidential any
information relating to this Agreement.
(e) The Buying Parties and Sellers shall agree with each other as to the
form and substance of any press release related to this Agreement or the
transactions contemplated hereby, shall consult with each other as to the form
and substance of other public disclosures related thereto, and shall not make
any such press release or such other disclosures prior to such agreement or
consultation; provided, however, that nothing contained herein shall prohibit
any party hereto from making any disclosure which it deems necessary in light of
applicable Law, after notice to the other parties with the opportunity to
comment to the extent that delay of the disclosure is permitted under such Law.
The Buying Parties acknowledge that Amcast is a publicly held company and will
be required to disclose information about the transactions described in this
Agreement, the Acquired Assets and the Business by Law; all such filings and
disclosures may be made by Amcast and the other Sellers notwithstanding the
provisions of this Section 5.11. Sellers acknowledge that the Buying Parties'
parent company is a publicly held company and may be required to disclose
information about the transactions described in this Agreement by Law; all such
filings and disclosures may be made by the Buying Parties' parent company
notwithstanding the provisions of this Section 5.11.
5.12 Tax Matters. The parties shall cooperate in the preparation of all
federal, state, provincial, local and foreign Tax Returns and reports for which
one party could reasonably require the assistance of another party, including
providing any information reasonably requested by another party to assist in the
preparations of any such returns. Sellers shall use their respective reasonable
efforts to promptly deliver to Purchasers any and all notices, tax bills, tax
statements, correspondence, applications, renditions, orders or other similar
documents or communications received by any of them and relating to Affected
Taxes and shall cooperate and assist in the filing of all Tax Returns relating
to Affected Taxes, including, as required by applicable Law, the filing of Tax
Returns relating to Affected Taxes under the name and employer identification
number of the applicable Seller. Within 10 business days after the date of this
Agreement, Sellers shall request (i) a Corporate Letter of Good Standing from
the Indiana Department of Revenue with respect to the corporate income tax of
Amcast and Elkhart Products; (ii) an Authorization for Release of Tax
Information with the Arkansas Department of Finance and Administration with
respect to the income, sales and use taxes for Elkhart Products; (iii) a Tax
Certificate from the Ohio Department of Taxation for franchise taxes for Amcast
Industrial Corporation; (iv) a Conditional Tax Clearance from the Michigan
Department of Treasury with respect to the sales, use and income taxes of
Elkhart Products; and (v) a certificate issued pursuant to Section 6 of the
Retail Sales Act (Ontario). Sellers shall provide copies of such certificates to
Purchasers when they are received and shall keep Purchasers reasonably informed
with respect to any communications with a Government concerning such
certificates.
29
5.13 Operations Pending Closing.
(a) Except as otherwise contemplated by this Agreement, and except as
otherwise consented in writing to by Purchasers, from the date of this Agreement
until the Closing Date, each Seller shall conduct the Business in the Ordinary
Course of Business, and each Seller shall use its reasonable efforts, consistent
with the Seller's current business practices, to preserve the goodwill of the
Business, including to preserve its current relationships with customers,
suppliers, agents and employees of the Business.
(b) From the date of this Agreement to the Closing Date, Sellers will
promptly notify Purchasers of any change in their representations and warranties
(including the Disclosure Letter) in Section 4 of this Agreement.
(c) From the date of this Agreement to the Closing Date, the Buying Parties
will promptly notify Sellers of any change in their representations and
warranties in Section 3 of this Agreement.
5.14 Expenses. Except as otherwise set forth in this Agreement, each party
hereto shall bear and pay all costs and expenses incurred by it in connection
with the transactions contemplated by this Agreement, including fees, costs and
expenses of its own Representatives.
5.15 Title Commitment and Survey.
(a) At Purchasers' request, Sellers shall provide reasonable assistance in
any efforts made by Purchasers to obtain title insurance commitments with
respect to any of the Owned Real Property. The cost of obtaining the title
commitments and the cost of obtaining title insurance (including premiums)
pursuant to those commitments shall be borne solely by Purchasers.
(b) Sellers shall deliver to Purchasers, within five Business Days from the
date of this Agreement, any survey with respect to the Owned Real Property
currently in the possession of any Seller or its Affiliates. Purchasers may
update any such surveys at their own cost.
(c) If the title commitments, surveys or other evidence of title discloses
a title defect or exception constituting a Lien (other than a Permitted Lien),
Purchasers shall notify Sellers. Sellers shall use their reasonable efforts to
cure each such title objection shown as an exception to the title commitment
prior to Closing.
30
5.16 Motor Vehicles. At Closing Sellers shall take all actions and prepare
all documents necessary to effect the transfer to the appropriate Purchaser all
motor vehicle licenses and registrations pertaining to automobiles, trucks and
other motor vehicles and rolling stock of whatever kind used in the Business, in
compliance with the motor vehicle registration, licensing and other applicable
Laws of any jurisdictions where the motor vehicles are registered or licensed.
All transfer taxes related to the sale of motor vehicles in connection with the
consummation of the transactions described in this Agreement shall be borne by
Purchasers.
5.17 Exclusivity Agreement. Neither Seller nor any Affiliate or subsidiary
of a Seller, nor any of their respective Representatives (the "Amcast Parties"),
directly or indirectly shall solicit, encourage (including furnishing
information to any third party), respond to, negotiate or assist in any manner
any offers, bids or proposals involving, directly or indirectly, (a) the sale or
other disposition of any the Acquired Assets to any Person other than Purchaser
or an Affiliate of Purchaser (other than sales of inventory in the Ordinary
Course of Business or the sale or other disposition of any asset not material to
the Business in the Ordinary Course of Business) or (b) the sale or exchange
(whether through a merger or otherwise) of a controlling portion of the capital
stock of any Seller if such sale or exchange would result in the Acquired Assets
being owned or controlled, directly or indirectly, by a Person other than
Purchaser or an Affiliate of Purchaser (all such bids, offers and proposals
being referred to as "Acquisition Proposals"). No Seller shall enter into any
letter of intent, agreement in principle or other agreement with respect to any
matter involving an Acquisition Proposal. Subject to any confidentiality
requirements, Sellers shall immediately notify Purchaser in writing should any
of them receive any Acquisition Proposal, including the terms thereof.
5.18 Intellectual Property License. Purchaser hereby grants, effective as
of the Closing Date, to Sellers and their Affiliates a nonexclusive, perpetual,
pre-paid, worldwide license to continue to use in their respective businesses
the Intellectual Property (other than the Intellectual Property described in
Sections 1.1(k) and 1.1(n) and other than any trademarks, service marks or other
similar indicators of source) and the Proprietary Information that are included
in the Acquired Assets and have been or are used by Sellers and their Affiliates
in their respective businesses being retained; provided, however, that (i) such
license is contingent on performance of Sellers' confidentiality obligations set
forth in Section 5.11, (ii) a Purchaser may transfer such Intellectual Property
and Proprietary Information subject only to the license contained in this
Section 5.18 at any time, and (iii) any Seller or an Affiliate of any Seller may
transfer this license to any successor or assignee of the business in which the
Intellectual Property and Proprietary Information that are the subject of the
license have been or are used, subject to the agreement by such successors or
assignees to be bound by this Section 5.18, including the confidentiality
provisions, to the same extent as the assigning Seller or Affiliate of Seller.
5.19 Multiemployer Plan. After Closing Purchasers shall assume Sellers'
obligation to contribute to the I.A.M. Multiemployer Plan with respect to
Sellers' operations covered by the I.A.M. Multiemployer Plan for substantially
the same number of contribution base units for which Sellers had an obligation
to contribute to the Multiemployer Plan before Closing.
31
(a) In the event that, at the time of Closing, Sellers would have been
responsible for any withdrawal liability with respect to the I.A.M.
Multiemployer Plan, as described in ERISA section 4201, taking into
consideration the de minimis reduction described in ERISA section 4209, and in
the event the parties do not receive the Variance with respect to the I.A.M.
Multiemployer Plan, then the following shall apply. If Purchasers withdraw from
the I.A.M. Multiemployer Plan in a complete withdrawal or a partial withdrawal
with respect to Sellers' Business operations covered by the I.A.M. Multiemployer
Plan, during the five Plan Years commencing with the first Plan Year beginning
after the Closing, Sellers shall be secondarily liable for any withdrawal
liability they would have had to the I.A.M. Multiemployer Plan with respect to
such operations (but for the provisions of ERISA section 4204) if Purchasers'
liability with respect to the I.A.M. Multiemployer Plan is not paid by
Purchasers. Additionally, Sellers shall provide, to the extent required by ERISA
section 4204, in order to comply with the provisions of ERISA section 4204, a
bond or amount in escrow equal to the present value of the withdrawal liability
Sellers would have had with respect to the I.A.M. Multiemployer Plan, but for
ERISA section 4204.
(b) In the event that, at the time of Closing, Sellers would have been
responsible for any withdrawal liability with respect to the I.A.M.
Multiemployer Plan, but for this Agreement and after taking into consideration
the de minimis reduction described in ERISA section 4209, and in the event the
parties' request for the Variance referred to in subsection (c) is denied by the
I.A.M. Multiemployer Plan, then Purchasers shall provide to the I.A.M.
Multiemployer Plan, for a period of five (5) Plan Years commencing with the
first Plan Year beginning after the Closing either of the following within
thirty (30) days of receipt of such denial: (x) a bond issued by a corporate
surety company that is acceptable for purposes of Section 412 of ERISA, or (y)
cash to be held in escrow by a bank or similar financial institution
satisfactory to the I.A.M. Multiemployer Plan. Such bond or escrow shall be in
an amount equal to the greater of (i) the average annual contribution required
to be made by Sellers with respect to Sellers' Business operations covered by
the I.A.M. Multiemployer Plan for the three (3) Plan Years preceding the Plan
Year in which the Closing occurs, or (ii) the annual contribution that Sellers
were required to make with respect to Business operations under the I.A.M.
Multiemployer Plan for the last Plan Year before the Plan Year in which the
Closing occurs. Such bond or escrow shall be paid to the I.A.M. Multiemployer
Plan if Purchasers withdraw from the I.A.M. Multiemployer Plan or fail to make a
contribution to the I.A.M. Multiemployer Plan when due, at any time during the
first five (5) Plan Years beginning after the Closing.
(c) Parent, Purchasers and Sellers hereby agree to reasonably cooperate
with each other in seeking a variance (the "Variance") from the I.A.M.
Multiemployer Plan pursuant to 29 C.F.R. section 4204.11, from the requirement
that Purchasers obtain a bond or escrow as required by section 4204 of ERISA and
the requirement of section 4204 of ERISA that this Agreement provide that
Sellers remain secondarily liable for withdrawal liability resulting from the
complete or partial withdrawal of Purchasers from the I.A.M. Multiemployer Plan
with respect to the Business operations during the first five Plan Years of the
I.A.M. Multiemployer Plan beginning after the Closing Date (a "Premature
Withdrawal").
(d) Seller shall promptly reimburse Purchasers for all expenses reasonably
incurred by Purchasers in connection with any bond or escrow obtained by
Purchasers pursuant to paragraph (b) of this Section 5.19 ("Reimbursement
Expenses"). In the event that Purchasers engage in a Premature Withdrawal,
Purchasers shall promptly refund to Sellers any Reimbursement Expenses Sellers
paid to Purchasers.
32
6. CONDITIONS TO CLOSING.
6.1 Conditions to Obligations of Each Party. The obligations of the Buying
Parties and Sellers to consummate the transactions contemplated hereby shall be
subject to the fulfillment, on or prior to the Closing Date, of the following
conditions (any of which may be waived, in whole or in part, by Purchaser, as to
each Buying Party, or Amcast, as to each Seller, in writing):
(a) No Action or Proceeding. Since the date of this Agreement there must
not have been any Action instituted by any Government that is pending at Closing
that, if successfully asserted by such Government, would materially restrict or
prohibit the transactions contemplated by this Agreement or present a
substantial risk that the Buying Parties or Sellers would be liable for material
damages or other material relief in connection therewith.
(b) Government Consents. All Consents from any Government that are
necessary for the consummation of the transactions contemplated by this
Agreement must have been received and must be in full force and effect, and any
applicable waiting period under the HSR Act must have expired.
(c) Amcast Lender Consents. All Consents required under the Amcast credit
facilities necessary to remove any Liens (other than Permitted Liens) imposed by
such facilities on the Acquired Assets must have been obtained on or before the
Closing Date.
(d) Certain Other Consents. All Consents described on Schedule 6.1(d) must
have been obtained on or before the Closing Date.
6.2 Conditions to Obligations of the Buying Parties. The obligations of the
Buying Parties to consummate the transactions contemplated hereby shall be
subject to the fulfillment, at or prior to the Closing, of each of the following
additional conditions (any of which may be waived, in whole or in part, by
Purchaser in writing):
(a) Representations and Warranties True. The representations and warranties
of Sellers set forth in Section 4 of this Agreement must have been true and
correct as of the date of this Agreement and as of the Closing Date with the
same effect as if made on the Closing Date (or to the extent such
representations and warranties speak as of a specified date, they need only be
true and correct as of such specified date), in each case interpreted without
giving effect to the words "materially" or "material" or any qualifications
based on such terms or based on the term "Material Adverse Effect"
(collectively, "Materiality Qualifications"), except where the failure of all
such representations and warranties to be true and correct, in the aggregate,
would not reasonably be expected to have a Material Adverse Effect, and at the
Closing each Seller must have delivered to Purchaser a certificate to such
effect signed by an authorized officer of that Seller.
33
(b) Performance of Covenants. The obligations of each Seller to be
performed by it on or before the Closing Date pursuant to the terms of this
Agreement must have been duly performed in all material respects on or before
the Closing Date, and at the Closing each Seller must have delivered to
Purchaser a certificate to such effect signed by an authorized officer of that
Seller.
(c) Additional Closing Documents of Sellers. Purchasers must have received
at the Closing the following documents, dated the Closing Date:
(i) A copy, certified by an authorized officer of each Seller, of
resolutions of the board of directors of that Seller authorizing the execution,
delivery and performance of this Agreement and all other agreements, documents
and instruments relating hereto and the consummation of the transactions
contemplated hereby (together with an incumbency and signature certificate
regarding the officers signing on behalf of each Seller);
(ii) A xxxx of sale for the Acquired Assets in substantially the form of
Exhibit B and such other bills of sale and assignments, in form and substance
reasonably satisfactory to counsel for Purchaser, covering items of tangible and
intangible personal property included in the Acquired Assets;
(iii) Certificates of title to the motor vehicles identified on Schedule
1.1(i) hereto, duly endorsed, completed and acknowledged for transfer;
(iv) General warranty deeds to the Owned Real Property included in the
Acquired Assets and improvements of any such Owned Real Property;
(v) A certificate, in the form prescribed by Treasury Regulations under
Section 1445 of the Code, that each Seller (other than Amcast Canada) is not a
foreign Person within the meaning of Section 1445 of the Code;
(vi) An opinion of legal counsel for Sellers including the matters set
forth on Exhibit C;
(vii) An agreement executed and delivered by Xxx Brass Company and LBC
Group Corp. containing a covenant not to compete in form and scope similar to
Section 5.3, except that Xxx Brass Company and LBC Group Corp. will be free to
sell brass fittings to any Person, including current and future customers of the
Business, other than any Person to whom Elkhart Products sells brass fittings as
of the Closing Date that are sourced from Xxx Brass Company (except that Xxx
Brass Company and LBC Group Corp. may sell to any such Person at such time that
(A) such Person has not purchased any such brass fittings from Xxx Brass Company
and/or U.S. Purchaser during a continuous six-month period, (B) U.S. Purchaser
permits Xxx Brass Company or LBC Group Corp. in writing to sell to such Person,
or (C) the Supply Agreement terminates, whichever occurs first);
(viii) Documents required for the change of Elkhart Products' corporate
name, resolutions of Elkhart Products' shareholders and a signed but unfiled
certificate of amendment to its charter;
34
(ix) An executed supply agreement between Xxx Brass Company and U.S.
Purchaser in the form attached as Exhibit D (the "Supply Agreement")
(x) the Escrow Agreement duly executed by Sellers and the escrow agent to
be identified therein; and
(xi) Such further documents and instruments of sale, transfer, conveyance,
assignment or delivery covering the Acquired Assets or any part thereof as
Purchaser may reasonably require to assure the sale and assignment of the
Acquired Assets as contemplated by this Agreement.
(d) No Material Adverse Effect. No event, change, development or effect
shall have occurred since July 21, 2004, that, individually or in the aggregate,
would reasonably be expected to constitute or result in a Material Adverse
Effect.
6.3 Conditions to Obligations of Sellers. The obligation of Sellers to
consummate the transactions contemplated hereby shall be subject to the
fulfillment, at or prior to the Closing Date, of the following additional
conditions (any of which may be waived, in whole or in part, by Amcast in
writing):
(a) Representations and Warranties True. The representations and warranties
of the Buying Parties contained in Section 3 of this Agreement must have been
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date with the same effect as if made on the Closing Date (or
to the extent such representations and warranties speak as of a specified date,
they need only be true and correct in all material respects as of such specified
date), in each case interpreted without giving effect to any Materiality
Qualifications, and at the Closing, each Buying Party must have delivered to
each Seller a certificate to such effect, signed by a duly authorized officer of
that Buying Party.
(b) Performance of Covenants. The obligations of each Buying Party to be
performed on or before the Closing Date pursuant to the terms of this Agreement
must have been duly performed in all material respects on or before the Closing
Date, and at the Closing Purchaser must have delivered to each Seller a
certificate to such effect signed by a duly authorized officer of Purchaser.
(c) Tender of Purchase Price. Purchasers must have tendered the Initial
Cash Purchase Price for the Acquired Assets in Immediately Available Funds
pursuant to Section 2.1 of this Agreement.
(d) Additional Closing Documents of the Buying Parties. Sellers must have
received at the Closing the following documents, each dated the Closing Date:
(i) copies, certified by an authorized officer of each Buying Party, of
resolutions of the board of directors of each Buying Party authorizing the
execution and delivery of this Agreement and all other agreements, documents or
instruments relating hereto and the consummation of the transactions
contemplated hereby;
35
(ii) the Instrument of Assumption, duly executed by Purchasers, pursuant to
Section 2.2 hereof;
(iii) an opinion of legal counsel for the Buying Parties including the
matters set forth on Exhibit E;
(iv) the Supply Agreement, duly executed by U.S. Purchaser;
(v) the Escrow Agreement duly executed by Purchasers and the escrow agent
to be identified therein;
(vi) an executed Transition Services Agreement between Xxx Brass Company
and U.S. Purchaser in the form attached as Exhibit F; and
(vii) Such further documents and instruments reasonably requested by
Sellers to assure the assumption of the Assumed Liabilities as contemplated by
this Agreement.
(e) Union Release. Sellers must have obtained a release, in a form
reasonably acceptable to Sellers, from the Local 1315 of District 90 of the
International Association of Machinists with respect to their obligations under
the Union Contract.
7. INDEMNIFICATION.
7.1 Indemnification by Sellers. Subject to the terms hereof, each Seller
agrees to defend, indemnify and hold harmless each Buying Party, its Affiliates
and their respective Representatives, successors and assigns ("Purchaser
Indemnitees"), from and against any claim, liability, expense, encumbrance,
penalty, assessment, judgment, cost, loss or other damage (including reasonable
attorneys' fees and expenses) (collectively, "Claims") asserted against, imposed
upon or incurred by any Purchaser Indemnitee by reason of, resulting from or
arising out of:
(a) any breach by any Seller of any representation or warranty made by such
Seller in Section 4 of this Agreement or in any document executed and delivered
by or on behalf such Seller to any Buying Party at Closing with respect to the
transactions contemplated by this Agreement;
(b) any breach or non-performance by any Seller of any covenant or
agreement made by such Seller in this Agreement or in any document executed and
delivered by or on behalf of such Seller to any Buying Party at Closing with
respect to the transactions contemplated by this Agreement;
(c) failure to comply with any bulk sale statutes applicable to the
transactions contemplated by this Agreement;
(d) the enforcement of the indemnification rights under this Section 7;
(e) notwithstanding the disclosure of any matters on Schedules 4.9(a)
through (g), any and all Environmental Liabilities that may be imposed upon or
incurred by them arising out of or in connection with: (i) any and all
Environmental Conditions, known or unknown, existing on or prior to the Closing
Date on, at or underlying any of the Real Property, (ii) any acts or omissions
of the Sellers relating to the ownership or operation of the Business on or
prior to the Closing Date, (ii) the Sellers' on-site or off-site handling,
storage, treatment or disposal of any Hazardous Materials generated by any
Seller on or prior to the Closing Date, or (iii) any breach by Sellers of any
representation or warranty contained in Section 4.9 hereof; and
36
(f) the conduct of the Business by the Sellers or the ownership or use of
the Acquired Assets by the Sellers before the Closing, except to the extent the
Claim (i) is an Assumed Liability, (ii) is described in Section 7.1(e) or (iii)
is based on or arises out of matters addressed in any representation or warranty
contained in Section 4 (other than the representation and warranty contained in
Section 4.31), including the Schedules in the Disclosure Letter, without regard
to any materiality or knowledge qualifications.
7.2 Indemnification by the Buying Parties. Each Buying Party agrees to
defend, indemnify and hold each Seller, its Affiliates and their respective
Representatives, successors and assigns ("Seller Indemnitees") harmless from and
against any Claim asserted against, imposed upon or incurred by any Seller
Indemnitee by reason of, resulting from or arising out of:
(a) the Assumed Liabilities;
(b) the conduct of the Business or the use of the Acquired Assets after
Closing;
(c) any breach by a Buying Party of any representation or warranty made by
a Buying Party in Section 3 of this Agreement or in any document executed and
delivered by or on behalf of a Buying Party to any Seller at Closing with
respect to the transactions contemplated by this Agreement;
(d) any breach or non-performance by a Buying Party of any covenant or
agreement made by a Buying Party in this Agreement or in any document executed
and delivered by or on behalf of a Buying Party to any Seller at Closing with
respect to the transactions contemplated by this Agreement;
(e) any obligations pertaining to Employees under WARN and any similar Laws
with respect to the sale of the Acquired Assets pursuant to this Agreement; and
(f) the enforcement of the indemnification rights under this Section 7.
7.3 Determination of Loss. Indemnification pursuant to this Section 7 shall
be payable with respect to any Claim described herein as subject to
indemnification upon the happening of the earlier of the following:
(a) resolution of such Claim by mutual agreement between Sellers and the
Buying Parties; or
(b) the issuance of a final, non-appealable judgment, award, order or other
ruling by an arbitrator pursuant to Section 9.8 hereof or by a court of
competent jurisdiction.
37
7.4 Limitations on Indemnification.
(a) No Seller shall have any liability under this Section 7 until the
aggregate amount of all Claims described in Section 7.1 exceeds $500,000 (the
"Minimum Amount"), and then only for the amount by which such Claims exceed
$250,000 (the "Threshold Amount"). Upon reaching the Minimum Amount, Sellers
shall be liable to Purchaser Indemnitees with respect to Claims described in
Section 7.1 in excess of the Threshold Amount up to an aggregate amount of
$10,000,000 (the "Maximum Amount"); provided, however, that the limitations set
forth in this Section 7.4(a) shall not apply to the following Claims (the
"Exception Claims"): Claims relating to Section 7.1(e), Claims arising from
inaccuracies in the representations contained in Section 4.20, Claims arising
from a breach of the covenants set forth in Section 5.12 or Claims for any Taxes
owed by any Seller not included in the Assumed Liabilities. For purposes of this
Section 7.4(a) only, any amounts recovered by the Purchaser Indemnities under
the Indemnification Insurance (other than amounts recovered pursuant to an
Exception Claim), plus any amounts (other than amounts recoverable pursuant to
an Exception Claim) that would have been recovered had the Purchaser Indemnitees
(i) complied with the terms and conditions of the Indemnification Insurance and
(ii) not taken any Insurance Limitation Actions, shall be applied toward (and
thereby reduce) the Maximum Amount.
(b) No Buying Party shall have any liability under this Section 7 until the
aggregate amount of all Claims described in Section 7.2 exceeds the Minimum
Amount, and then only for the amount by which such Claims exceed the Threshold
Amount. Upon reaching the Minimum Amount, the Buying Parties shall be liable to
Seller Indemnitees with respect to Claims described in Section 7.2 in excess of
the Threshold Amount up to an aggregate amount equal to the Maximum Amount;
provided, however, that the limitations set forth in this Section 7.4(b) shall
not apply to any Claim pursuant to Section 7.2(a).
(c) Except for applicable deductibles or retention amounts set forth in the
Indemnification Insurance and any amounts for Exception Claims exceeding the
Maximum Amount, as a condition precedent to collecting any Claim under this
Section 7, the Purchaser Indemnitees must exhaust all reasonable efforts to
recover under the Indemnification Insurance (including, if reasonable under the
circumstances, bringing any Action against the insurer or underwriter
thereunder); provided, however, that for purposes of this sentence, no Purchaser
Indemnitee shall be required to file any lawsuit or other claim in a Forum. No
Seller shall have any liability under this Section 7 with respect to any Claim
or part of a Claim for which coverage under the Indemnification Insurance is
available or would have been available had the Purchaser Indemnitees (i)
complied with the terms and conditions of the Indemnification Insurance and (ii)
not taken any Insurance Limitation Actions.
(d) To the extent any Indemnifying Party indemnifies any Indemnified Party
on any claim under this Section 7, the Indemnified Party shall, and shall cause
each other of its Affiliates who may be Indemnified Parties to, assign to the
Indemnifying Party, to the fullest extent allowable, their rights and causes of
action with respect to such claim against third parties, or in the event
assignment is not permissible, the Indemnifying Party shall be allowed to pursue
such claim in the name of the Indemnified Party, at the Indemnifying Party's
expense. To the extent that any Indemnifying Party pursues any such cause of
action with respect to a claim against third parties, it shall take no action
that would reasonably be expected to have an adverse effect on the Business or
any Indemnified Party. The Indemnifying Party shall, in such case, be entitled
to retain all recoveries for their own accounts made as a result of any such
action. The Indemnified Party shall provide, and shall cause each other of its
Affiliates who may be Indemnified Parties to provide, to the Indemnifying Party
reasonable assistance in prosecuting such claim, including making their books
and records relating to such claim available to the Indemnifying Party and
making their employees available for interviews and similar matters. If any
Indemnified Party recovers from a third party any part of a claim that had been
paid by any Indemnifying Party pursuant to its indemnification obligations
hereunder, that Indemnified Party shall promptly remit to the applicable
Indemnifying Party the amount of such recovery without regard to the time
limitations described in Section 7.7 below.
38
(e) Any amounts recovered by an Indemnified Party from an Indemnifying
Party under this Section 7 shall be treated as an adjustment to the Final Cash
Purchase Price or Assumed Liabilities, as appropriate, and shall be net of any
Tax effects to the Indemnified Parties or their Affiliates. For purposes of this
paragraph, "Tax effect" shall mean, as applicable, the present value of (i) any
refund, credit or reduction in otherwise required Tax payments including any
interest payable thereon or (ii) any required payment of Tax, including any
interest payable thereon. For purposes of this Section 7.4(d), present value
shall be computed as of the later of the Closing Date or the first date on which
the right to the refund, credit or other Tax reduction or the requirement to pay
Taxes arises or otherwise becomes available to be utilized (regardless of the
time that the Buying Parties or their Affiliates actually utilize the benefit),
(i) using the Tax rate applicable with respect to such Tax under applicable Law
on such date, and (ii) using the interest rate on such date imposed on corporate
deficiencies paid within thirty (30) days of the notice of proposed deficiency
under the Code.
(f) In computing the amount of any indemnification to which any Purchaser
Indemnitee may be entitled under this Section 7 by virtue of a breach of
Sections 4.4, if on the Financial Statements the amount of any liability has
been understated or unrecorded or asset overstated, on the one hand, but on the
other hand the amount of any other liabilities has been overstated or any assets
understated, only the net effect (benefits or detriment as the same are
determined in accordance with GAAP) of such errors shall be taken into account.
(g) No Indemnified Party shall be entitled to any indemnity (i) on account
of consequential, incidental or indirect damages or losses and, in particular,
no "multiple of profits" or other items shall be applied in calculating any
indemnity amount, or (ii) as to any Purchaser Indemnitee, in respect of any
claim to the extent that the matter and the amount that is the subject of the
claim is reflected on, accrued for or reserved against in the Final Closing
Working Capital Statement.
(h) No Indemnifying Party shall have any liability for indemnification with
respect to any claim for indemnification that relates to the passing of, or any
change in, after the Closing Date, any Law or any accounting policy, principle
or practice or any increase in Tax rates in effect on the Closing Date, even if
the change or increase has retroactive effect or requires action at a future
date.
(i) To the extent that any breach of a representation or warranty made by
any Seller is capable of remedy or cure, each Purchaser Indemnitee shall, as a
condition precedent to asserting a claim concerning the breach, afford Sellers a
reasonable opportunity (which shall not be less than 30 days) to remedy or cure
the breach and shall provide, and shall cause its Affiliates to provide, to
Sellers all reasonable assistance (including access to buildings, offices,
records, files, properties and assets) in connection with such remedy or cure.
The Buying Parties agree that in the event of any breach of a representation or
warranty giving rise to an indemnity obligation of Sellers, Purchaser shall take
and shall cause each other Purchaser Indemnitee to take, and cooperate with
Sellers, if so requested by Sellers, in order to take, all reasonable measures
to mitigate the consequences of the related breach known to the Buying Parties
(including taking steps to prevent any contingent liability known to the Buying
Parties from becoming an actual liability). Sellers shall reimburse each
Purchaser Indemnitee for its expenses in complying with this Section 7.4(h).
39
(j) With respect to any claim for indemnification relating to environmental
matters in which a Buying Party or any other Purchaser Indemnitee is required
under applicable Law to initiate or conduct a response action, Sellers shall
only be responsible to provide indemnification with respect to the most
economically reasonable response action required under applicable Law. A claim
arising out of off-site disposal that is resolved through agreement, settlement
or consent among a group of potentially responsible parties with the appropriate
Government shall be deemed economically reasonable as long as consistent with
that affecting other similarly situated Persons. Sellers shall have the option
to supervise and perform any response action and the Buying Parties shall, and
shall cause each other Purchaser Indemnitee to, provide Sellers and their
Representatives reasonable assistance, including access to any affected real
property, to conduct the response action. All remediation shall be conducted in
a manner that does not interfere unreasonably with a Purchaser's operation of
the Real Property. Subject to Sellers' right to direct the work, Sellers shall
keep the Buying Parties advised of, and may oversee, the implementation of the
remediation. The Buying Parties, at their sole expense, may also reasonably
inspect all stages of the remediation provided that such inspection does not
interfere with or delay the work. To the extent a Buying Party or any other
Purchaser Indemnitee elects to implement a response action without Sellers'
written consent, which consent shall not be unreasonably withheld, all costs
associated with such action shall be borne by the Buying Parties and each other
Purchaser Indemnitee and not Sellers.
7.5 Indemnification Procedure.
(a) Third-Party Claims.
(i) Promptly after receipt by a party entitled to be indemnified under this
Section 7 (an "Indemnified Party") of notice of the commencement of any Action
for which the Indemnified Party intends to assert a claim for indemnification
against another party (an "Indemnifying Party") under this Section 7, the
Indemnified Party shall give notice to the Indemnifying Party of the
commencement of such Action with reasonable promptness (so as to not prejudice
the Indemnifying Party's rights).
(ii) The Indemnifying Party shall be entitled to participate in any Action
described in Section 7.5(a)(i) above and, to the extent that it wishes, to
assume the defense of such Action with counsel reasonably satisfactory to the
Indemnified Party. Following the assumption of defense by an Indemnifying Party,
the Indemnifying Party shall not be liable for any subsequent fees of legal
counsel or other expenses incurred by the Indemnified Party in connection with
the defense of such Action, and the Indemnified Party shall have the right to
participate in the defense with its own counsel at its own expense. No
compromise or settlement of any claims in an Action shall be binding on an
Indemnifying Party for purposes of the Indemnifying Party's indemnity
obligations under this Agreement without the Indemnifying Party's express
written consent.
40
(iii) A party granted the right to direct the defense of any Action under
this Section 7.5 shall (A) keep the other parties hereto informed of material
developments in the Action, (B) promptly submit to the other parties copies of
all pleadings, responsive pleadings, motions and other similar legal documents
and papers received in connection with the Action, (C) permit the other parties
and their counsel, to the extent practicable, to confer on the conduct of the
defense of the Action, and (D) to the extent practicable, permit the other
parties and their counsel an opportunity to review all legal papers to be
submitted prior to their submission. The parties shall make available to each
other and each other's counsel and accountants all of their books and records
relating to the Action, and each party shall provide to the others such
assistance as may be reasonably required to insure the proper and adequate
defense of the Action. Each party shall use its good faith efforts to avoid the
waiver of any privilege of another party. The assumption of the defense of any
Action by an Indemnifying Party shall not constitute an admission of
responsibility to indemnify or in any manner impair or restrict the Indemnifying
Party's rights to later seek to be reimbursed its costs and expenses if
indemnification under this Agreement with respect to the Action was not
required. An Indemnifying Party may elect to assume the defense of an Action at
any time during the pendency of the Action, even if initially the Indemnifying
Party did not elect to assume the defense, so long as the assumption at such
later time would not materially prejudice the rights of the Indemnified Party.
(iv) A Claim for indemnification for any matter not involving a third-party
claim may be asserted by written notice of the Claim, setting forth in
reasonable detail the factual and contractual bases for the Claim, to the party
from whom indemnification under this Section 7 is sought.
7.6 Exclusive Remedy. From and after the Closing, this Section 7
constitutes the sole and exclusive remedy of the Buying Parties and Sellers with
respect to any matters arising under or with respect to this Agreement or any
document executed and delivered by any party to another party at Closing, and
the Buying Parties and Sellers hereby irrevocably waive and release the others
from any and all claims and other causes of action, including claims for
contribution, relating to such matters. No party shall be entitled to rescind
this Agreement following the Closing in the event of a breach of any
representation, warranty or covenant made by another party in this Agreement.
The provisions of this Section 7.6 shall not apply with respect to any matters
constituting fraud on the part of the applicable party.
7.7 Survival. The representations and warranties contained in Sections 3
and 4 hereof, and the indemnification obligations in Sections 7.1 and 7.2, shall
survive and Claims in connection therewith may be asserted, subject to the
limitations set forth in Section 7, only until the expiration of the second
anniversary of the Closing Date; provided, however, that the representations and
warranties set forth in Section 4.20 shall survive until the expiration of the
statutes of limitations applicable to the matters to which such representations
and warranties relate; the representations and warranties set forth in Sections
3.1, 3.2, 4.1, 4.2, the first sentence of Section 4.3, Section 4.9 and the
indemnification obligations in Section 7.1(e) shall survive and Claims in
connection therewith may be asserted for a period of six years after Closing;
and provided, further, any specific Claim for which a specific written claim for
indemnification as provided herein has been given to an Indemnifying Party prior
to the date on which the right to make such Claim otherwise terminates as
provided herein, may continue to be asserted pursuant to Section 7 hereof.
41
8. TERMINATION.
8.1 Termination Events. This Agreement may be terminated by mutual consent
of Parent, on behalf of the Buying Parties, and Amcast, on behalf of Sellers. In
addition, this Agreement may be terminated by notice given before or at the
Closing as follows:
(a) by any Seller if a Buying Party materially defaults in the timely
performance of the Buying Parties' covenants, agreements or obligations
contained in this Agreement, or the Buying Parties materially breach any of
their representations or warranties set forth in this Agreement, and such
default or breach is not cured within 20 days after written notice of the
default or breach;
(b) by Parent if any Seller materially defaults in the timely performance
of any of such Sellers' covenants, agreements or obligations contained in this
Agreement, or if any Seller materially breaches any of its representations or
warranties set forth in this Agreement, and such default or breach is not cured
within 20 days after written notice of the default or breach;
(c) by Parent if any of the conditions in Sections 6.1 or 6.2 have not been
satisfied as of the Closing Date or if satisfaction of such a condition is or
becomes impossible (other than through the failure of the Buying Parties to
comply with its obligations under this Agreement) and the Buying Parties have
not waived the condition on or before the Closing Date;
(d) by any Seller if any of the conditions in Sections 6.1 or 6.3 have not
been satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through the failure of Sellers to comply with
their obligations under this Agreement) and Sellers have not waived the
condition on or before the Closing Date; or
(e) By any Seller or Buying Party if the Closing has not occurred (other
than through the failure of the party seeking to terminate this Agreement to
comply fully with its obligations under this Agreement) on or before August 15,
2004, or such later date upon which the parties may agree in writing.
8.2 Effect of Termination. If this Agreement is terminated by mutual
agreement of Parent and Amcast, all further obligations of the parties under
this Agreement shall terminate. If this Agreement is terminated by a party
because of a breach of this Agreement by another party or because one or more of
the conditions to the terminating party's obligations under this Agreement is
not satisfied as a result of another party's failure to comply with its
obligations under this Agreement, the terminating party's right to pursue all
legal remedies shall survive such termination unimpaired.
42
9. MISCELLANEOUS.
9.1 Entire Agreement. Except for the Confidentiality Agreement, this
Agreement (including all schedules hereto) supersedes any and all other prior
agreements, oral or written, among the parties hereto with respect to the
subject matter hereof, and contains the entire agreement among the parties with
respect to the transactions contemplated hereby. The schedules to this Agreement
are being delivered as a separate document, and their contents are incorporated
into this Agreement by reference.
9.2 Amendments; Waiver. This Agreement may be amended, modified, superseded
or canceled and any of its provisions may be waived only by a written instrument
executed by all of the parties or, in the case of a waiver, by or on behalf of
the party waiving compliance. The failure of any party at any time to require
performance of any provision of this Agreement shall in no manner affect the
right of that party at a later time to enforce the same or a different
provision. No waiver by any party of any condition or of any breach of any
provision of this Agreement, in any one or more instances, shall be deemed to be
or construed as a further or continuing waiver of any such condition or of any
breach of the same or a different provision. If any party expressly waives in
writing an unsatisfied condition, representation, warranty, undertaking,
covenant or agreement (or portion thereof) set forth herein, the waiving party
shall thereafter be barred from recovering, and thereafter shall not seek to
recover, any Claims from the other parties in respect of the matter or matters
so waived.
9.3 Successors; Assignment. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted transferees and assignees. Except as described in Section 5.18,
neither this Agreement nor any interest herein may directly or indirectly be
transferred or assigned by any party, in whole or in part, without the written
consent of the other parties, except that Purchaser may effect any such
assignment to any Affiliate, but any such assignment shall not relieve Purchaser
of its duties and obligations contained in this Agreement.
9.4 Notices. Any notice, request, demand or other communication to be given
pursuant to the terms of this Agreement must be in writing and shall be deemed
to have been duly given on the day it is delivered by hand, on the day it is
sent by facsimile with confirmation of receipt by the transmitting facsimile
machine, on the next business day after it is sent by a nationally recognized
overnight mail service (delivery charge prepaid), or on the third business day
after it is mailed first class, postage prepaid, in each case to the following
addresses:
If to any Seller: Amcast Industrial Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, President
and Chief Executive Officer
Facsimile: 000-000-0000
43
with copies to: Xxxxxx & Xxxxxxxxx LLP
000 Xxxxxx Xxxxxx Xxxxx
00 Xxxxxx Xxx., XX
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attention: R. Xxxx Xxxxxx, Esq.
Facsimile: 000-000-0000
If to Parent or any Purchaser: Aalberts Industries X.X.
Xxxxxxxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxxxxxxxxxx
Attention: Berend P. Bolkenstein
Facsimile: 011-31-343-565-081
with copies to: Fulbright & Xxxxxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: 000-000-0000
or to such other address or to such other person as any party shall have last
designated by written notice provided to the other parties in the manner set
forth in this Section 9.4.
9.5 Severability and Reformation. If any provision of this Agreement or any
application thereof shall be held invalid, illegal or unenforceable, the
validity, legality or enforceability of the other provisions of this Agreement
and any other application of such provision shall not be affected thereby, and
there shall be deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
9.6 No Third Party Beneficiary. This Agreement is for the benefit of, and
may be enforced only by, Sellers and the Buying Parties and their respective
successors and permitted transferees and assignees, and is not for the benefit
of, and may not be enforced by, any third party.
9.7 Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without regard to
conflict of law principles.
9.8 Mediation and Arbitration. Subject to the indemnification provisions
set forth in Section 7 above:
(a) The parties agree that any and all disputes, claims or controversies
arising out of or relating to this Agreement or the breach, termination,
enforcement, interpretation or validity thereof, including the determination of
the scope or applicability of this Agreement to mediate and arbitrate, shall be
mediated before a mediator agreeable to both parties or, if they cannot agree,
then before JAMS, or its successor. The mediation shall be conducted at a
mutually agreeable location or, if they cannot agree, then at the JAMS office in
Chicago, Illinois. Any party may commence mediation by providing to the other
parties a written request for mediation, setting forth the subject of the
dispute and the relief requested. The parties shall cooperate with one another
in selecting a mediator and in scheduling the mediation proceedings. The parties
covenant that they shall participate in the mediation in good faith, and that
they shall share equally in its costs. All offers, promises, conduct and
statements, whether oral or written, made in the course of the mediation by any
of the parties or their Representatives, and by the mediator or any JAMS
employees, are confidential, privileged and inadmissible for any purpose,
including impeachment, in any arbitration or other Action involving the parties,
provided that evidence that is otherwise admissible or discoverable shall not be
rendered inadmissible or non-discoverable as a result of its use in the
mediation.
44
(b) Any party may initiate arbitration with respect to the matters
submitted to mediation by filing a written demand for arbitration at any time
following the initial mediation session or 45 days after the date of filing the
written request for mediation, whichever occurs first. The mediation may
continue after the commencement of arbitration if the parties so desire. Unless
otherwise agreed by the parties, the mediator shall be disqualified from serving
as arbitrator in the case. Arbitration may be enforced by any court of competent
jurisdiction, and the party seeking enforcement shall be entitled to an award of
all costs, fees and expenses, including reasonable attorneys fees, to be paid by
the party or parties against whom enforcement is ordered.
(c) Any arbitration shall be conducted at a mutually agreeable location or,
if the parties cannot agree, in Elkhart, Indiana. The arbitration shall be
before a sole arbitrator mutually selected by the parties or, if they cannot
agree, then before a retired judge to be selected by JAMS pursuant to its
Comprehensive Arbitration Rules and Procedures, who shall thereafter administer
the arbitration; provided however that JAMS shall identify the preceding ten
(10) arbitrations conducted by each arbitrator candidate and the lawyers
involved in the arbitration. The arbitration shall be conducted pursuant to the
foregoing rules except as set forth herein. The parties to the dispute shall be
permitted to conduct pre-hearing discovery in the form of depositions and
document production requests subject to the control of the arbitrator. The award
of the arbitrator shall be a reasoned award specifying all essential findings of
fact and conclusions of law necessary to support the award. Judgment on the
award may be entered in any court having jurisdiction. In any proceeding to
confirm the award, the court also shall have jurisdiction to review the award
for errors of Law.
(d) The cost of the arbitration shall initially be borne equally by the
parties. In the award the arbitrator shall allocate, consistent with Section 7
hereof, all of the costs of the arbitration (and the mediation, if applicable),
including the fees of the arbitrator and the reasonable attorneys' fees of the
prevailing party, against the party or parties who did not prevail.
9.9 Counterparts. This Agreement may be executed in two or more
counterparts and by the parties on separate counterparts, all of which shall be
considered one and the same instrument, and each of which shall be deemed an
original. Each of the parties hereto (a) has agreed to permit the use, from time
to time, of faxed or otherwise electronically transmitted signatures in order to
expedite the consummation of the transactions contemplated hereby, (b) intends
to be bound by its respective faxed or otherwise electronically transmitted
signature, (c) is aware that the other parties hereto shall rely on the faxed or
otherwise electronically transmitted signature, and (d) acknowledges such
reliance and waives any defenses to the enforcement of the documents effecting
the transaction contemplated by this Agreement based on the fact that a
signature was sent by fax or otherwise electronically transmitted.
45
9.10 Headings; Construction. The headings of the sections and paragraphs in
this Agreement have been inserted for convenience of reference only and shall
not restrict or otherwise modify any of the terms or provisions of this
Agreement. Unless otherwise expressly provided, the words "including" or
"includes" whenever used in this Agreement do not limit the preceding words or
terms. With regard to all dates and time periods set forth or referred to in
this Agreement, time is of the essence.
9.11 Consent to Service of Process and Jurisdiction. The Buying Parties and
Sellers agree that, in the event it becomes necessary for any party to enforce
the provisions of Section 9.8 of this Agreement or any arbitration award
obtained pursuant to Section 9.8 of this Agreement by legal action, the parties
hereby consent that suit may be brought hereunder in any court of appropriate
jurisdiction in Elkhart County, Indiana, U.S.A., or in the United States
District Court for the Northern District of Indiana, regardless of the state,
county or country in which any party may reside or have such parties domicile
(corporate or individual) at the time of any such action. The Buying Parties and
Sellers consent to service of process and other notices given or required in any
proceedings submitted to arbitration by either party pursuant to the provisions
of Section 9.8 by personal delivery or by registered mail addressed to such
party at the addresses set out in Section 9.4. However, any party may serve
legal process in any other manner permitted by Law or the rules of the American
Arbitration Association.
9.12 Appointment of Amcast as Agent for Sellers. Amcast is hereby
constituted and appointed as agent and attorney-in-fact for and on behalf of all
other Sellers. Without limiting the generality of the foregoing, Amcast has full
power and authority, on behalf of each Seller and its successors and assigns, to
(a) interpret the terms and provisions of this Agreement and the documents to be
executed and delivered by the Sellers in connection herewith, (b) execute and
deliver and receive deliveries of all agreements, certificates, statements,
notices, approvals, extensions, waivers, undertakings, amendments and other
documents required or permitted to be given in connection with this Agreement
and the consummation of the transactions contemplated by this Agreement and all
related agreements, (c) receive service of process in connection with any claims
under this Agreement or any related agreements, (d) agree to negotiate, enter
into settlements, and compromises of, assume the defense of claims, demand
arbitration and comply with orders of courts and awards of arbitrators with
respect to such claims and to take all actions necessary or appropriate in the
judgment of Amcast for the accomplishment of the foregoing, (e) give and receive
notices and communications, (f) authorize delivery to Purchaser of any amounts
in satisfaction of Claims, (g) object to such deliveries, and (h) take all
actions necessary or appropriate in the judgment of Amcast on behalf of Sellers
in connection with this Agreement and all related agreements.
9.13 Certain Information. Neither the specification of any dollar amount in
the representations and warranties contained in this Agreement nor the inclusion
of any item in any schedule in the Disclosure Letter is intended, or will be
construed or offered in any dispute among the parties as evidence of, the
material nature of such dollar amount or item, nor shall it establish any
standard of materiality upon which to judge the inclusion of any other items in
the Disclosure Letter. The information contained in this Agreement and the
Disclosure Letter is disclosed solely for the purposes of this Agreement, and no
information contained herein or therein shall be deemed to be an admission by
any party to any Person (other than the parties to this Agreement for the
purposes of this Agreement) of any matter whatsoever, including of any violation
of Law or breach of any contract.
46
10. CERTAIN DEFINITIONS.
10.1 Definitions. For purposes of this Agreement, the following capitalized
terms shall have the meanings given to them below:
"Action" means any action, suit, complaint, claim, counter-claim, petition,
set-off, inquiry, investigation, administrative proceeding, arbitration, or
private dispute resolution proceeding, whether at law, in equity, by contract,
or otherwise, and whether conducted by or before any Government, any Forum, or
other Person.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with the
former Person. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
"Consent" means any consent, authorization, order or approval of, or filing
or registration with, or notification.
"Disclosure Letter" means the schedules to Sellers' representations and
warranties in Section 4 of this Agreement.
"Employee Liabilities" means all liabilities or obligations of Sellers and
ERISA Affiliates to their employees and the spouses, dependents and
beneficiaries of such employees (except to the extent such liabilities are
expressly assumed by Purchasers pursuant to Section 2.2); any and all
liabilities or obligations related to or arising under any Seller Benefit Plan
(except to the extent such liabilities are expressly assumed by Purchasers
pursuant to Section 2.2); and any Seller Contribution Liabilities and any Seller
Withdrawal Liabilities.
"Employees" means all full time and part-time employees (hourly and
salaried) of each Seller who perform services primarily in connection with the
Business (including any such employees who are not actively at work on the
Closing Date due to vacation, approved leave of absence, sick leave, short-term
disability leave, leave under the Family and Medical Leave Act, but excluding
any such employees who are on long-term disability leave under a long-term
disability plan or program maintained by a Seller or an ERISA Affiliate.
"Environmental Conditions" means any pollution, contamination, degradation,
damage or injury caused by, related to, arising from, or in connection with the
generation, handling, use, treatment, storage, transportation, disposal,
discharge, Release (as that term is defined below), or emission of any Hazardous
Materials that would constitute a violation of any Environmental Law.
47
"Environmental Laws" means all Laws applicable to the Business or the Real
Property and relating to (i) the control of any potential pollutant or
protection of the air, water or land, (ii) solid, gaseous or liquid waste
generation, handling, treatment, storage, disposal or transportation, and (iii)
exposure to hazardous, toxic or other substances alleged to be harmful, and
includes (1) the terms and conditions of any Permit by any Government, and (2)
judicial, administrative, or other regulatory decrees, judgments, and orders of
any Government. The term "Environmental Laws" shall include, but not be limited
to the following statutes and the regulations promulgated thereunder: the Clean
Air Act, 42 X.X.X.xx. 7401 et seq., the Clean Water Act, 33 U.S.C. ss. 1251 et
seq., the Resource Conservation and Recovery Act ("RCRA"), 42 X.X.X.xx. 6901 et
seq., the Superfund Amendments and Xxxxxxxxxxxxxxx Xxx, 00 X.X.X.xx. 00000 et
seq., the Toxic Substances Control Act, 15 U.S.C.ss.2601 et seq., the Water
Pollution Control Act, 33 X.X.X.xx. 1251 et seq., the Safe Drinking Water Act,
42 X.X.X.xx. 300f et seq., CERCLA, 42 U.S.C.ss.9601 et seq., and any state,
county, or local regulations similar thereto.
"Environmental Liabilities" shall mean any and all liabilities,
responsibilities, claims, suits, losses, costs (including remediation, removal,
response, abatement, clean-up, investigative, and/or monitoring costs and any
other related costs and expenses), other causes of action, damages, settlements,
expenses, charges, assessments, liens, penalties, fines, pre-judgment and
post-judgment interest, reasonable attorney fees and other legal fees (i)
pursuant to any agreement, order, notice, requirement, responsibility, or
directive (including directives embodied in Environmental Laws), injunction,
judgment or similar documents (including settlements) arising out of or in
connection with any Environmental Laws, or (ii) pursuant to any claim by a
Government or other Person for personal injury, property damage, damage to
natural resources, remediation, or similar costs or expenses incurred or
asserted by such entity or person pursuant to common law or statute arising out
of or in connection with any Environmental Condition.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" means any Seller and all other trades or businesses,
whether or not incorporated, which together with that Seller would be deemed a
"single employer" within the meaning of Section 414(b), (c) or (m) of the Code.
"Facilities" means Sellers' respective facilities located in Elkhart,
Indiana, Geneva, Indiana, Fayetteville, Arkansas, and Burlington, Ontario at
which the Business is conducted.
"Forum" means any federal, state, local or municipal court, governmental
agency, administrative body or agency, tribunal, private alternative dispute
resolution system, or arbitration panel.
"GAAP" means United States generally accepted accounting principles.
"Government" means any domestic or foreign government, whether federal,
provincial, state, territorial, local or municipal, or any governmental agency,
ministry, tribunal department, commission, board, bureau, agency,
instrumentality, unit, or taxing authority thereof or any other instrumentality
exercising or purporting to exercise legislative, judicial, regulatory or
administrative functions pertaining to government.
48
"GST" means taxes, interest, penalties and fines imposed under Part IX of
the Excise Tax Act (Canada) and the regulations made thereunder; and "GST
Legislation" means such act and regulations collectively.
"Hazardous Materials" means any (i) toxic or hazardous materials or
substances; (ii) solid wastes, including asbestos, polychlorinated biphenyls,
urea-formaldehyde foam, mercury, chemicals, flammable or explosive materials;
(iii) radioactive materials; (iv) petroleum wastes and spills or Releases of
petroleum products; and (v) any other chemical, pollutant, contaminant,
substance or waste that is regulated by any Government under any Environmental
Law.
"Insurance Limitation Actions" means any action, statement or occurrence
made by or on behalf of any Purchaser Indemnitee that limits, reduces or
eliminates coverage under the Indemnification Insurance for any Claim, including
any inaccuracy in any application or other statement made in connection with
obtaining the Indemnification Insurance, any cancellation or modification of the
Indemnification Insurance, or any assignment or waiver of rights under the
Indemnification Insurance.
"Intellectual Property" means intellectual property of every kind and
nature, including all inventions, discoveries, ideas, procedures, algorithms,
patterns, bills of materials, information, data, samples, formulae,
specifications, plans, drawings, blueprints, compositions, processes, designs,
technology, know-how, capabilities, confidential information and trade secrets
(whether or not patentable or reduced to practice), confidential or proprietary
technical and business information, computer software (including source code and
object code), domain names, United States and foreign patents and xxxxx patents
(including continuations, continuations-in-part, divisions, reissues,
re-examinations, extensions and renewals), patent applications, United States,
state or foreign registered and unregistered trade names, brand names,
trademarks, service names, service marks, logos and designs (and applications
for registration of the same), goodwill symbolized or associated with any of
them, copyrights and copyright registrations (and applications for the same),
extensions, renewals, United States and foreign registrations and applications
to register copyrights, technical manuals and documentation made or used in
connection with any of the foregoing.
"Law" means all federal, provincial, territorial, state, local or municipal
constitutions, statutes, rules, regulations, ordinances, acts, codes,
legislation, conventions and similar laws and legal requirements of any
Government, as in effect on the date of this Agreement.
"Lien" means any mortgage, pledge, hypothecation, security interest,
encumbrance, lien or charge of any kind, however evidenced or created.
"Material Adverse Effect" means an actual, material adverse effect on the
financial condition of the Business considered as a whole, but shall be deemed
to exclude (i) any changes resulting from general economic, regulatory or
political conditions, (ii) acts attributable to, omissions by or circumstance
affecting Parent, Purchaser or their Affiliates, or (iii) circumstances that
affect the industries in which the Business operates generally.
49
"Multiemployer Plan" means a plan that is both a pension benefit plan (as
defined in section 3(2) of ERISA) and a multiemployer plan (as defined in
section 3(37) of ERISA).
"Ordinary Course of Business" means a course of action with respect to the
Business that is consistent with the past practices of the Business and is taken
in the ordinary course of the normal day-to-day operations of the Business.
"Permits" means permits, tariffs, authorizations, licenses, certificates,
variances, consents, interim permits, approvals, franchises and rights under any
Law or otherwise issued or required by any Government and any applications for
any of the foregoing which are required by Law for a Seller to engage in the
Business as currently conducted.
"Permitted Liens" means (a) mechanics', carriers', workmen's, repairmen's
or other like Liens arising or incurred in the Ordinary Course of Business; (b)
Liens for Taxes, assessments and other governmental charges (i) that are not due
and payable or (ii) that are being contested in good faith by appropriate
proceedings, and are specifically identified on Schedule 4.3 as "Permitted
Liens"; (c) water, sewage and similar charges; (d) Liens arising or resulting
from any action taken by Purchaser or its Affiliates; (e) Liens relating to
easements, rights of way, restrictions and other similar Liens that do not
materially interfere with the ordinary conduct of operations or that would be
disclosed by an accurate survey; (f) Liens relating to imperfections or defects
in title that do not materially adversely affect the value or use of the
applicable asset; (g) Liens arising under Law in favor of landlords; (h) Liens
that constitute Assumed Liabilities; and (i) those Liens listed on Schedule 4.3
and specifically identified as "Permitted Liens".
"Person" means and includes an individual, a partnership, a joint venture,
a corporation, a limited liability company, a trust, an unincorporated
association or organization, and a Government.
"Plan Year" means the fiscal year of the applicable plan.
"Purchaser Retirement Plan" means a defined contribution retirement plan
established after the Closing for the benefit of Transferred Employees that is
intended to satisfy the requirements of section 401(a) of the Code.
"Real Property" means, collectively, the Owned Real Property and the real
property leased by a Seller pursuant to a Facility Lease.
"Release" or "Released" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the environment of any Hazardous Materials.
"Representative" means with respect to a particular Person, any director,
officer, manager, employee, agent, consultant, advisor or other representative
of such Person, including legal counsel, lenders, accountants and financial
advisors.
50
"Seller Benefit Plan" shall mean each of the following that is maintained
by a Seller or an ERISA Affiliate or with respect to which a Seller or an ERISA
Affiliate may have any liability contingent or otherwise: (a) any employee
welfare benefit plan or employee pension benefit plan as defined in sections
3(1) and 3(2) of ERISA, including a plan that provides retirement income or
results in deferrals of income by employees for periods extending to their
terminations of employment or beyond, and a plan that provides medical, surgical
or hospital care benefits or benefits in the event of sickness, accident,
disability, death or unemployment and (b) any other material employee benefit
agreement or arrangement that is not an ERISA plan, including any deferred
compensation plan, incentive plan, bonus plan or arrangement, stock option plan,
stock purchase plan, stock award plan, golden parachute agreement, severance pay
plan, dependent care plan, cafeteria plan, employee assistance program,
scholarship program, vacation policy, or other similar plan, agreement or
arrangement.
"Seller Contribution Liabilities" means (a) all obligations for
contributions required to be made by Sellers and ERISA Affiliates with respect
to Seller Benefit Plans other than the I.A.M. Multiemployer Plan, and (b) except
to the extent such obligations are accrued for or reserved against on the Final
Closing Working Capital Statement, all obligations for contributions required to
be made by Sellers and ERISA Affiliates with respect to the I.A.M. Multiemployer
Plan for the time period ending on the Closing Date.
"Seller Multiemployer Plan" means a Seller Benefit Plan that is a
Multiemployer Plan.
"Seller Retirement Plan" means a Seller Benefit Plan that is both a defined
contribution retirement plan and intended to satisfy the requirements of section
401(a) of the Code.
"Seller Withdrawal Liabilities" means all obligations of Sellers and ERISA
Affiliates for withdrawal liabilities under section 4201 of ERISA incurred by
reason of events occurring on or prior to the Closing Date.
"Sellers' Knowledge" shall mean the actual knowledge of Xxxxxx Xxxxx,
Xxxxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxxxx Xxxxxxxx or Xxxxx Xxxxxx and such knowledge
as any of those Persons would reasonably be expected to have because of such
Person's position with a Seller.
"Tax Return" shall mean any report, return, statement, notice, form,
declaration, claim for refund or other document or information filed, submitted
to, or required to be supplied to a Government in connection with the
determination, assessment, collection or payment of any Tax, including any
schedule or attachment to or amendment of any of the foregoing.
"Taxes" shall mean all income, property, sales, use, customs, franchise,
value added, ad valorem, withholding, employees' income withholding, and social
security and Medicare taxes imposed by any Government, and all interest and
penalties thereon.
51
All other capitalized terms used in this Agreement that are not defined in
this Section 10 but defined elsewhere in this Agreement shall have for purposes
of this Agreement the meanings set forth elsewhere in this Agreement and include
the following:
Defined Term Where Defined
Accountants .....................2.4(b)
Accounts Receivable .....................1.1(e)
Acquired Assets ........................1.1
Acquisition Proposals .......................5.17
Affected Taxes .....................2.2(b)
Agreement ...................Preamble
Amcast ...................Preamble
Amcast Canada ...................Preamble
Amcast Parties .......................5.17
Assumed Liabilities ........................2.2
Audited Financial Statements ........................4.4
Backlog Orders .......................4.30
Business ...................Recitals
Buying Parties ..........................3
Canadian Purchaser ...................Preamble
CERCLA .....................4.9(c)
Claims ........................7.1
Closing ........................1.3
Closing Date ........................1.3
Closing Working Capital Statement .....................2.4(b)
COBRA ....................4.10(d)
Code ........................2.6
Competitive Business ........................5.3
Competitive Products ........................5.3
Confidentiality Agreement ....................5.11(a)
Contract .....................1.1(h)
Disclosure Letter .......................4.30
Elkhart Products ...................Preamble
Equipment .....................1.1(c)
Escrow Agreement ........................2.1
Escrow Funds ........................2.1
Excluded Assets ........................1.2
Facility Leases .....................1.1(h)
Final Cash Purchase Price .....................2.4(b)
Final Closing Working Capital Statement .....................2.4(b)
Financial Statements ........................4.4
HSR Act ........................5.1
Immediately Available Funds ........................2.1
Including .......................9.10
Indemnification Insurance ........................2.1
Indemnified Party ........................7.5
52
Indemnifying Party ........................7.5
Initial Cash Purchase Price ........................2.1
Instrument of Assumption ........................2.2
Inventory .....................1.1(a)
Listed Intellectual Property Assets .....................1.1(k)
Marked Materials ........................5.7
Material Contract ....................4.11(a)
Materiality Qualifications .......................5.17
Maximum Amount .....................7.4(a)
Minimum Amount .....................7.4(a)
Multiemployer Plan .....................2.2(d)
Owned Real Property .....................1.1(l)
Parent ...................Preamble
Prepaid Expenses .....................1.1(d)
Products Liability .......................4.16
Proprietary Information .....................1.1(f)
Purchasers ...................Recitals
Purchaser Indemnitees ........................7.1
Real Property Improvements .....................4.5(e)
Reimbursement Expenses ....................5.19(d)
Related Parties .......................4.20
Review Period .....................2.4(b)
Seller Indemnitees ........................7.2
Sellers ...................Preamble
Supplies .....................1.1(b)
Supply Agreement .....................6.2(c)
Target Working Capital .....................2.4(a)
Tax benefit .....................7.4(e)
Threshold Amount ........................7.4
Transferred Employee .....................5.5(a)
Unaudited Balance Sheet ........................4.4
Unaudited Financial Statements ........................4.4
Union Contract .....................1.1(h)
U.S. Purchaser ...................Preamble
Variance ....................5.19(c)
WARN .....................5.5(a)
Working Capital .....................2.4(d)
* * * * *
53
Purchaser and Sellers have caused this Asset Purchase Agreement to be duly
executed as of the date first set forth above.
BUYING PARTIES:
AALBERTS INDUSTRIES U.S. HOLDING CORP.
By:
Its:
ELKHART PRODUCTS CORPORATION
(a Delaware corporation)
By:
Its:
ELKHART PRODUCTS, LTD.
(a Canada corporation)
By:
Its:
SELLERS:
Amcast Industrial Corporation
By:
Its:
Elkhart Products Corporation
(an Indiana corporation)
By:
Its:
Amcast Industrial Ltd.
By:
Its:
54
