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EXHIBIT 10.2
XXXXXXXX INTERNATIONAL CORPORATION
EMPIRE STOCK CORP.
THE YORK GROUP, INC.
YORK BRONZE COMPANY
AND
OMC INDUSTRIES, INC.
ASSET PURCHASE AGREEMENT
Dated as of May 24, 2001
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TABLE OF CONTENTS
ARTICLE I. Purchase of Assets; Purchase Price
1.01 Purchase of Assets
1.02 Purchase Price for Assets
1.03 Allocation of Consideration
ARTICLE II. Representations and Warranties of York and the Companies
2.01 Organization and Authority
2.02 Due Authorization
2.03 Absence of Conflicts
2.04 Financial Information
2.05 Absence of Material Changes
2.06 Title to Assets
2.07 Material Contracts and Agreements
2.08 Governmental Licenses and Permits; Consents
2.09 Indebtedness and Commitments
2.10 Taxes
2.11 Insurance
2.12 Litigation and Claims
2.13 Compliance with Laws
2.14 Environmental and Occupational Safety Matters
2.15 Brokers' Fees
2.16 Contingencies
2.17 Condition of Tangible Assets
2.18 Inventory
2.19 Books and Records
2.20 Warranties
2.21 Restrictions on Business Activities
ARTICLE III Representations and Warranties of Xxxxxxxx and Empire
3.01 Organization and Authority
3.02 Due Authorization
3.03 Absence of Conflicts
3.04 Litigation and Claims
3.05 Brokers' Fees
3.06 Governmental Approvals
3.07 Warranties
ARTICLE IV Covenants
4.01 Employees
4.02 Financial Statements
4.03 Tax Matters
4.04 Uses of Names
ARTICLE V Remedies for Breaches of this Agreement
5.01 Survival of Representations, Warranties and Covenants
5.02 Indemnification Provisions for Benefit of Xxxxxxxx and Empire
5.03 Indemnification Provisions for Benefit of the Companies
5.04 Notice of Claim for Indemnification
5.05 Matters Involving Third Parties
5.06 Exclusive Remedy
ARTICLE VI Definitions
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ARTICLE VII Miscellaneous
7.01 Further Assurances
7.02 Expenses
7.03 Governing Law
7.04 Entire Agreement; Modification; Waiver
7.05 Notices
7.06 Counterparts
7.07 Matters of Construction, Interpretation and the Like
7.08 No Third-Party Beneficiaries
7.09 Succession and Assignment
7.10 Time of Essence
SCHEDULES
Schedule 1.01(a) York Bronze Assets
Schedule 1.01(b) OMC Assets
Schedule 2.01(a) Subsidiaries and Investments; Foreign Jurisdictions of York
Bronze
Schedule 2.01(b) Subsidiaries and Investments; Foreign jurisdictions of OMC
Schedule 2.03 Third Party Consents
Schedule 2.04 Financial Statements
Schedule 2.05 Changes Since December 31, 2000
Schedule 2.06 Title to Assets
Schedule 2.07 Contracts and Agreements
Schedule 2.09 Indebtedness and Commitments
Schedule 2.10 Taxes
Schedule 2.12 Litigation and Claims
Schedule 2.13 Compliance with Laws
Schedule 2.14 Environmental and Occupational Safety Matters
Schedule 2.16 Contingencies
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") dated as of May 24, 2001, is
entered into by and among XXXXXXXX INTERNATIONAL CORPORATION, a Pennsylvania
corporation ("Xxxxxxxx"), EMPIRE STOCK CORP., a Delaware corporation
("Empire"), THE YORK GROUP, INC., a Delaware corporation ("York"), YORK BRONZE
COMPANY, a Delaware corporation ("York Bronze"), and OMC INDUSTRIES, INC., a
Texas corporation ("OMC") (each of York Bronze and OMC referred to at times
herein as a "Company" and collectively as the "Companies"). Capitalized terms
used in this Agreement which are not otherwise defined herein are defined in
Article VI hereof.
WITNESSETH:
WHEREAS, York Bronze and OMC are both wholly-owned subsidiaries of York; and
WHEREAS, Empire is a wholly-owned subsidiary of Xxxxxxxx; and
WHEREAS, the Companies manufacture commemorative products related to and for
use in the death care industry, such as bronze memorials, urns, flower vases,
bronze plaques and crypt letters; and
WHEREAS, the Companies desire to sell and to assign to Empire, and Empire
desires to purchase from the Companies, on the terms and conditions set forth
herein, certain of the assets of the Companies; and
WHEREAS, subsequent to the date hereof, Empire shall purchase from York
approximately 75% of the issued and outstanding shares of the capital stock of
York Bronze and of OMC upon the terms and conditions set forth in that certain
Stock Purchase Agreement dated as of May 24, 2001 (the "Stock Purchase
Agreement") among Xxxxxxxx, Empire and York; and
WHEREAS, as an inducement for York and the Companies to enter into this
Agreement, Xxxxxxxx has agreed to make representations, warranties, covenants,
acknowledgments and agreements as set forth herein to York and the Companies
for York's and the Companies' benefit hereunder.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
ARTICLE I
Purchase of Assets; Purchase Price
1.01 Purchase of Assets. (a) York Bronze does hereby sell, convey, assign,
transfer and deliver to Empire, free and clear of all Liens, and Empire hereby
purchases from York Bronze, for the consideration specified in Section 1.02
hereof, the assets of York Bronze set forth on Schedule 1.01(a) hereto (the
"York Bronze Assets")
(b) OMC does hereby sell, convey, assign, transfer and deliver to Empire, free
and clear of all Liens, and Empire hereby purchases from OMC, for the
consideration specified in Section 1.02 hereof, the assets of OMC set forth on
Schedule 1.01(b) hereto (the "OMC Assets" and, collectively with the York
Bronze Assets, the "Assets").
1.02 Purchase Price for Assets. Empire hereby purchases the Assets and, in
consideration therefor, concurrently herewith delivers via wire transfer in
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immediately available funds (i) to York Bronze, Seven Million Seven Hundred
and Ninety Thousand Dollars ($7,790,000) for the York Bronze Assets, and (ii)
to OMC, One Million One Hundred Thousand Dollars ($1,100,000) for the OMC
Assets (collectively, the "Purchase Price").
1.03 Allocation of Consideration. The Purchase Price shall be allocated among
the Assets in accordance with the values agreed upon by Empire and the
Companies. Such allocation shall be made in accordance with Section 1060 of
the Code.
ARTICLE II
Representations and Warranties of York and the Companies
York and each of the Companies represent and warrant to Empire and to Xxxxxxxx
that the statements contained in this Article II are correct and complete as
of the date of this Agreement, except (i) as contemplated by the Stock
Purchase Agreement or any documents, disclosure schedules or transactions
related thereto or contemplated thereby, (ii) as may result from or may be
contemplated by the Sub 1 Asset Transfer or the Liquidation (as defined below)
of York Bronze or OMC, and (iii) that each of the representations, warranties
and statements in this Article II are qualified in their entirety by the
Disclosure Schedules and the information set forth or referred to therein.
Notwithstanding anything to the contrary in this Agreement, York makes no
representations nor any warranties respecting the completeness, legality,
effects or consequences of the Sub 1 Asset Transfer or the Liquidation of York
Bronze and OMC.
2.01 Organization and Authority. (a) York Bronze is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware. York Bronze (i) has full corporate power and authority to own
and lease the property and assets it now owns and leases and to carry on its
business as and where such property and assets are now owned or leased and
such business is now conducted and (ii) except as set forth on Schedule
2.01(a), has not owned and does not now own directly or indirectly any debt or
equity securities issued by any other corporation, or any interest in any
partnership, joint venture or other business enterprise. Schedule 2.01(a)
sets forth a true and complete list of each jurisdiction in which York Bronze
is qualified to do business as a foreign corporation. The copies of the
certificate of incorporation and bylaws of York Bronze, which have previously
been delivered to Empire and/or to Xxxxxxxx, are complete and correct and in
either case have not been amended since March 31, 2001. There are no
bankruptcy proceedings pending, contemplated by or, to either York's or York
Bronze's knowledge, threatened against York Bronze.
(b) OMC is a corporation duly organized, validly existing and in good standing
under the laws of the State of Texas. OMC (i) has full corporate power and
authority to own and lease the property and assets it now owns and leases and
to carry on its business as and where such property and assets are now owned
or leased and such business is now conducted and (ii) except as set forth on
Schedule 2.01(b), has not owned and does not now own directly or indirectly
any debt or equity securities issued by any other corporation, or any interest
in any partnership, joint venture or other business enterprise. Schedule
2.01(b) sets forth a true and complete list of each jurisdiction in which OMC
is qualified to do business as a foreign corporation. The copies of the
certificate of incorporation and bylaws of OMC, which have previously been
delivered to Empire and/or to Xxxxxxxx, are complete and correct and in either
case have not been amended since March 31, 2001. There are no bankruptcy
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proceedings pending, contemplated by or, to either York's or OMC's knowledge,
threatened against OMC.
2.02 Due Authorization. The execution and delivery by York and each Company
of this Agreement and the other Transaction Documents to which each is a
party, the performance by York and each such Company of all the terms and
conditions hereof and thereof to be performed by it and the consummation of
the transactions contemplated hereby and thereby, have been duly authorized
and approved by all necessary corporate proceedings on the part of York and
each such Company. No other corporate proceeding on the part of York or
either Company is necessary to approve and adopt this Agreement and each of
the other Transaction Documents to which York and each such Company is a party
and to consummate the transactions contemplated hereby and thereby. This
Agreement and each of the other Transaction Documents to which York or either
Company is a party have been duly and validly executed and delivered by York
and each such Company and constitute the legal, valid and binding obligations
of York and each such Company enforceable against York and each such Company
in accordance with their respective terms, subject to bankruptcy, insolvency
or other similar laws of general application affecting creditors' rights and
general principles of equity.
2.03 Absence of Conflicts. Except as set forth in Schedule 2.03, neither the
execution and delivery by York or either Company of this Agreement and the
other Transaction Documents to which it is a party, the compliance by York or
such Company with the terms and conditions hereof and thereof, nor the
consummation by York or such Company of the transactions contemplated hereby
or thereby will:
(a) conflict with any of the terms, conditions or provisions of the
certificate of incorporation or bylaws of York or such Company,
(b) violate any provision of, or require any consent, authorization or
approval under, any law or administrative regulation or any judicial
administrative or arbitration order, award, judgment, writ, injunction or
decree applicable to, or any Permit issued to, or notice to or filing with any
Governmental Authority with respect to York or such Company or that portion of
the Assets owned by such Company,
(c) to York's knowledge or such Company's knowledge, violate, conflict with,
result in a breach of any provision of or the loss of any benefit under,
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, result in the termination of or a
right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any Lien upon any of the properties
or assets of such Company under, or require any consent, authorization or
approval under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, Lien or other agreement, instrument for borrowed money,
any guarantee of any agreement or instrument for borrowed money or any
license, lease or any other agreement or instrument to which York or such
Company, or by which it or any of its properties or assets may be bound or
affected, including without limitation that portion of the Assets owned by
such Company,
(d) result in the creation of any Lien upon any of the properties or assets of
such Company, including without limitation that portion of the Assets owned by
such Company, or
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(e) give to others any material rights or interests (including rights of
purchase, termination, cancellation or acceleration), under any such
indenture, mortgage, Lien, lease, agreement or instrument; except as would not
have a Material Adverse Effect.
2.04 Financial Information. York and the Companies have heretofore furnished
to Empire and/or to Xxxxxxxx the financial statements and information with
respect to the Companies described on Schedule 2.04 (the "Financial
Statements"). The Financial Statements, in the context of their original use
as part of the financial statements of the consolidated group of which York is
the parent, and subject to such consolidated financial statements and the
notes thereto as included in York's applicable SEC filings under the
Securities Exchange Act of 1934, as amended, complied as to form in all
material respects with applicable accounting requirements, were prepared in
accordance with generally accepted accounting principles ("GAAP") consistently
applied during the periods involved and fairly present:
(a) the balance sheet of the Companies as of March 31, 2001 and as of December
31, 2000 and 1999; and
(b) the results of operations and changes in financial position of the
Companies for the three-month period ending March 31, 2001 and for the fiscal
year ended December 31, 2000, and York Bronze for the fiscal year ended
December 31, 1999.
The books and records of each of the Companies from which the Financial
Statements were prepared properly and accurately reflect the transactions and
activities which they purport to record except as would not have a Material
Adverse Effect. Except as disclosed on Schedule 2.04 or as required by GAAP,
neither York nor either of the Companies has, since March 31, 2001, made any
change in the accounting practices or policies applied in the preparation of
the Financial Statements.
2.05 Absence of Material Changes. Except as set forth on Schedule 2.05 or the
Financial Statements, since December 31, 2000, there has not been:
(a) any Material Adverse Effect with respect to either Company or that portion
of the Assets owned by each such Company, or any event, condition or state of
facts which could be reasonably expected (i) to have a Material Adverse Effect
on that portion of the Assets owned by each such Company, or (ii) to impair
the ability of York or either such Company to perform their respective
obligations under this Agreement,
(b) any damage, destruction, condemnation or loss, whether covered by
insurance or not, which has had, or could reasonably be expected to have, a
Material Adverse Effect on that portion of the Assets owned by either Company,
or
(c) any material strikes or work stoppages against the operations of either
Company relating to the conduct of its business or any injunction, order, writ
or decree of any Governmental Authority against such strikes or work
stoppages.
2.06 Title to Assets. Except as set forth in Schedule 2.06, (i) all of the
York Bronze Assets are owned by York Bronze, free and clear of any and all
Liens other than Permitted Liens, and (ii) all of the OMC Assets are owned by
OMC, free and clear of any and all Liens other than Permitted Liens.
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2.07 Material Contracts and Agreements. Schedule 2.07 identifies the
following categories of material contracts, commitments and agreements of the
Companies related to the Assets not otherwise identified in any other
Schedule:
(a) contracts with any current officer or director of either of the Companies;
(b) contracts for the sale of any of the business, operations, properties or
assets of either of the Companies, including without limitation that portion
of the Assets owned by such Company, other than in the ordinary course of
business, or for the grant to any Person of any preferential rights to
purchase any of the business, operations, properties or assets of either of
the Companies, including without limitation that portion of the Assets owned
by such Company, other than inventory in the ordinary course of business;
(c) contracts containing covenants of either of the Companies not to compete
in any line of business or with any Person in any geographical area or
covenants of any other Person not to compete with either of the Companies in
any line of business or in any geographical area;
(d) all other agreements, contracts or instruments for either of the Companies
which, (i) involve purchases after the date hereof of more than $50,000 from
any one seller or group of related sellers, or (ii) involve sales or leases
after the date hereof of more than $50,000 to any one buyer or lessee or group
of related buyer or lessees;
(e) all other agreements contracts or instruments which are contracts,
commitments or agreements or involve transactions with any Affiliate or
subsidiary of either of the Companies other than York Bronze Trade Company, a
West Virginia corporation; or
(f) all agreements, contracts, commitments or instruments otherwise material
to the business, operations, properties or assets of any of either of the
Companies, including without limitation that portion of the Assets owned by
such Company.
The contracts, commitments and agreements listed on Schedule 2.07 are
hereinafter called the "Contracts." York and the Companies have heretofore
made available to Empire and/or to Xxxxxxxx true and complete copies of all
Contracts as in effect on the date hereof. Except as set forth in Schedule
2.07 or except as would not have a Material Adverse Effect, all Contracts are
in full force and effect (other than those which have been duly performed),
and are the legal, valid and binding obligations of the signatory Company,
enforceable against such Company in accordance with their respective terms.
Except as set forth on Schedule 2.07, there is no default, nor any event which
with notice or the lapse of time or both will become a default, under any of
the Contracts, by the signatory Company or any other party thereto, and no
consent, waiver, approval or authorization is required under any of the
Contracts as a result of the execution of this Agreement or the consummation
of the transactions contemplated hereby except as would not have a Material
Adverse Effect.
2.08 Governmental Licenses and Permits; Consents. (a) Except as disclosed in
the Disclosure Schedules, each Company is in possession of all franchises,
grants, authorizations, licenses, permits, charters, easements, variances,
exceptions, consents, certificates, approvals and orders of any Governmental
Authority (collectively, "Permits") necessary for such Company to own, lease
and operate its properties or to carry on its business except as would not
have a Material Adverse Effect (the "Company Permits"), and no suspension or
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cancellation of any of the Company Permits is pending or, to the knowledge of
York or such Company, threatened except as would not have a Material Adverse
Effect.
(b) No consents or approvals or filings or registrations with any Governmental
Authority, or under any third party contract, are required to be made by York
or either of the Companies or obtained by York or either of the Companies in
connection with (i) the execution and delivery by York and the Companies of
this Agreement and the other Transaction Documents, and (ii) the consummation
by York and the Companies of the transactions contemplated by this Agreement.
2.09 Indebtedness and Commitments. Schedule 2.09 hereto identifies each
indenture, mortgage, promissory note, or other instrument for borrowed money
under which either of the Companies has outstanding any indebtedness, guaranty
or liability for borrowed money or the deferred purchase price of property or
has the right or obligation to incur any such indebtedness, guaranty or
liability in each case in excess of $50,000 (the "Debt Instruments"). York
and the Companies have heretofore made available to Empire and/or to Xxxxxxxx
true and complete copies of each of the Debt Instruments as in effect on the
date hereof. Except as set forth in Schedule 2.09 and except as would not
have a Material Adverse Effect, there is no event of default or condition or
event which, with the giving of notice or the lapse of time or both, could
become an event of default under any of the Debt Instruments.
2.10 Taxes. Except as set forth in Schedule 2.10 hereto:
(a) York and each of the Companies has prepared and executed and duly filed
when due all United States Federal, state and other Tax Returns required to be
filed by applicable laws and regulations and have duly and timely paid all
Taxes or installments thereof that are due with respect to such Tax Returns;
(b) there are no Liens with respect to Taxes upon any of the assets of either
of the Companies, other than Liens with respect to Taxes that are not yet due
or remain payable without penalty or are being contested in good faith and by
appropriate proceedings;
(c) there are no agreements, waivers or arrangements by York or either of the
Companies for the extension of the time for the assessment of any amounts of
Tax, and no power of attorney granted by York or either of the Companies with
respect to any Taxes is currently in effect. No closing agreement under
Section 7121 of the Code or any similar provision of any state or local law
has been entered into by or with respect to either of the Companies;
(d) all United States Federal, state and local income Tax Returns of York and
each of the Companies for each year to and including the year ended December
31, 1996 have been examined by or accepted as filed with the relevant Tax
authorities and any asserted deficiencies settled and paid;
(e) there have been no deficiencies proposed as a result of the examination of
any United Stated Federal, state or other Tax Returns filed by York or either
of the Companies. No audit or other proceeding by any Governmental Authority
is pending or, to the knowledge of York or the Companies, threatened with
respect to any Taxes due from or with respect to York or either of the
Companies or any Tax Return filed by or with respect to York or either of the
Companies, and no assessment of Tax, has been proposed and delivered in
writing against York or either of the Companies or any of their respective
assets;
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(f) Neither York nor the Companies has filed or consented to the filing of any
United States Federal or state consolidated income Tax Return with any other
Person (other than a group the common parent of which was York) during the
three (3) years immediately preceding the date hereof;
(g) Neither York nor the Companies has any liability or potential liability
with respect to any consolidated Tax Return filed or to be filed by any Person
(other than a group the common parent of which is York);
(h) Neither York nor the Companies has consented to the application to it of
Section 341(f)(2) of the Code;
(i) Each Company has duly and timely withheld from employee salaries, wages,
and other compensation and paid over to the appropriate Taxing authorities all
amounts required to be so withheld and paid over for all periods under all
applicable laws.
2.11 Insurance. York and the Companies have made available to Empire and/or
to Xxxxxxxx complete and correct copies of all insurance policies insuring the
Companies as in effect on the date hereof. One or more of York and the
Companies has in effect insurance coverage for the Companies with one or more
reputable insurer, which in respect of amounts, premiums, types and risks
insured, constitutes reasonably adequate coverage against all risks
customarily insured against by companies of comparable size and with similar
operations.
2.12 Litigation and Claims. Except as set forth in Schedule 2.12:
(a) There are no actions, suits or proceedings pending or threatened against
York or either of the Companies or any of their respective directors, officers
or employees, that portion of the Assets owned by the Companies, relating to
the transactions contemplated by this Agreement, or which could reasonably be
expected, if adversely determined, to delay, prevent or hinder the
consummation of the transactions contemplated by this Agreement,
(b) Neither York nor the Companies nor any of their respective directors,
officers or employees has been charged with violating or threatened in writing
with a charge of violating, any provision of any United States Federal, state,
local or foreign law or administrative ruling or regulation, and
(c) Neither York nor the Companies has received any currently effective notice
of any default, nor to such York's or such Company's knowledge is in default,
under any order, writ, injunction, decree or Permit of any Governmental
Authority.
Except as set forth in Schedule 2.12 or elsewhere on the Disclosure Schedules,
to York's and each Company's knowledge there is no investigation of the
business, operations, properties or assets of such Company, including without
limitation that portion of the Assets owned by such Company, being conducted
by any Governmental Authority.
2.13 Compliance with Laws. Except as would not have a Material Adverse Effect
or except as set forth in Schedule 2.13, to York's and each Company's
knowledge such Company (i) is in compliance with all laws, regulations,
orders, judgments or decrees of any Governmental Authority provided that no
representation is made as to Environmental Laws and (ii) has made and is
current with respect to all filings, reports, certificates, returns and other
documentation and writings required to be furnished at any time or from time
to time to any Governmental
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Authority, and all such materials so furnished were true, correct and
complete, all amounts shown as due thereon have been paid in full or
appropriately reserved for and based on the affairs, revenues, enrollment or
other applicable measure of operations or assets during the period in
question, each such filing, report, certificate, return or other document or
writing correctly stated and reported the amount due.
2.14 Environmental and Occupational Safety Matters. With respect to all
applicable federal, state, local, regional and foreign laws, rules and
regulations, orders, decrees, common law, judgments, permits and licenses
relating to public and worker health and safety (collectively, "Worker Safety
Laws") and relating to the protection, regulation and clean-up of the indoor
and outdoor environment, including, without limitation, those relating to the
generation, handling, disposal, transportation or release of hazardous or
toxic materials, substances, wastes, pollutants and contaminants including,
without limitation, asbestos, petroleum, radon and polychlorinated biphenyls
(collectively, "Environmental Laws") York has in good faith made reasonable
efforts to disclose on Schedule 2.14 and during due diligence any matter
which, to York's or the Companies' knowledge, could have a Material Adverse
Effect, but otherwise makes no statements, representations or warranties and
Empire and Xxxxxxxx take the Assets "AS IS, WHERE IS" AND "WITH ALL FAULTS"
with respect to such Environmental Laws and Worker Safety Laws.
2.15 Brokers' Fees. Neither York nor either of the Companies has incurred any
liability for brokerage fees, finder's fees, agent's commissions or other
similar forms of compensation in connection with this Agreement or any
transaction contemplated hereby for which Empire or Xxxxxxxx will be
responsible.
2.16 Contingencies. Except for:
(a) liabilities which are disclosed and fully provided for in the most recent
balance sheet referred to in Section 2.04,
(b) liabilities incurred in the usual and ordinary course of business of each
of the Companies subsequent to the date of such balance sheet and on or prior
to the Closing Date,
(c) liabilities disclosed in Schedule 2.16 to this Agreement, and
(d) liabilities relating to Environmental Laws,
neither of the Companies has any material liabilities or obligations (absolute
or contingent, known or unknown, asserted or unasserted), including without
limitation contingent liability for the performance of any obligation by any
other Person.
2.17 Condition of Tangible Assets. To the knowledge of York and the
Companies, no tangible Assets which are material to the operations of the
Subsidiaries are reasonably likely to be unavailable for use (except to the
extent scheduled to be repaired or replaced) in the ordinary course of
business during the next three months succeeding the date of this Agreement
or except as would not have a Material Adverse Effect. Subject to the
previous sentence and the representations and warranties set forth elsewhere
in this Agreement, the assets of each of the Subsidiaries shall be accepted by
Empire and Xxxxxxxx in its "AS IS" "WHERE IS" AND "WITH ALL FAULTS" condition,
with any and all faults, defects and conditions, without representation or
warranty of any kind, express, implied, statutory or otherwise, including,
without limitation, any warranty as
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to habitability, suitability, merchantability, condition or fitness, fitness
for a particular purpose or fitness for any purpose.
2.18 Inventory. The inventory of each of the Companies constituting part of
the Assets is taken and shall be accepted by Empire and Xxxxxxxx in its "AS
IS" "WHERE IS" AND "WITH ALL FAULTS" condition, with any and all faults,
defects and conditions, without representation or warranty of any kind,
express, implied, statutory or otherwise, including, without limitation, any
warranty as to habitability, suitability, merchantability, condition or
fitness, fitness for a particular purpose or fitness for any purpose.
2.19 Books and Records. Except as would not have a Material Adverse Effect,
the minute books and other similar records of each of the Companies contain a
true and complete record of all actions taken at all meetings and by all
written consents in lieu of meetings of such Company's stockholders, boards of
directors, and committees thereof. Such books and records have been
maintained in accordance with good business and bookkeeping practices.
2.20 Warranties. The accrual for warranty related expenses as of December 31,
2000 reported in York's audited financial statements for the year ended
December 31, 2000, adequately reflects an amount required for satisfaction of
warranty claims due in respect of goods sold or services provided by each
Company prior to such date, except as would not have Material Adverse Effect.
Such provision has been established in accordance with GAAP, except as would
not have Material Adverse Effect. Neither Company has agreed to provide any
express product or service warranties other than standard warranties, the
terms of which York and the Companies have made available to Empire and/or to
Xxxxxxxx and identified as such Company's standard warranties.
2.21 Restrictions on Business Activities. There is no agreement, commitment,
judgment, injunction, order or decree binding upon either of the Companies or
to which either of the Companies is a party which has or could reasonably be
expected to have the effect of prohibiting or materially impairing any
business practice of such Company, any acquisition or transfer of property by
York or such Company or the conduct of business by such Company, as currently
conducted.
ARTICLE III
Representations and Warranties of Xxxxxxxx and Empire
Xxxxxxxx and Empire represent and warrant to York and the Companies that the
statements contained in this Article III are correct and complete.
3.01 Organization and Authority. (a) Empire is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Empire has the corporate power and authority to execute and deliver this
Agreement and each of the other Transaction Documents to which it is a party
and to perform its obligations hereunder and thereunder. There are no
dissolution, liquidation or bankruptcy proceedings pending, contemplated by
or, to the knowledge of Xxxxxxxx or Empire, threatened against Empire.
(b) Xxxxxxxx is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania. Xxxxxxxx has the
corporate power and authority to execute and deliver this Agreement and each
of the other Transaction Documents to which it is a party and to perform its
obligations hereunder and thereunder. There are no dissolution, liquidation
or
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bankruptcy proceedings pending, contemplated by or, to the knowledge of
Xxxxxxxx or Empire, threatened against Xxxxxxxx.
3.02 Due Authorization. (a) The execution and delivery by Empire of this
Agreement and each of the other Transaction Documents to which it is a party,
the performance by it of all the terms and conditions hereof and thereof to be
performed by it and the consummation of the transactions contemplated hereby
and thereby have been duly authorized and approved by all necessary corporate
proceedings on the part of Empire. No other corporate proceeding on the part
of Empire is necessary to approve and adopt this Agreement and each of the
other Transaction Documents to which it is a party and to consummate the
transactions contemplated hereby and thereby. This Agreement and the other
Transaction Documents to which Empire is a party have been duly and validly
executed by Empire and constitute the legal, valid and binding obligations of
Empire enforceable against Empire in accordance with their respective terms,
subject to bankruptcy, insolvency or other similar laws of general application
affecting creditors' rights and general principles of equity.
(b) The execution and delivery by Xxxxxxxx of this Agreement and each of the
other Transaction Documents to which it is a party, the performance by it of
all the terms and conditions hereof and thereof to be performed by it and the
consummation of the transactions contemplated hereby and thereby have been
duly authorized and approved by all necessary corporate proceedings on the
part of Xxxxxxxx. No other corporate proceeding on the part of Xxxxxxxx is
necessary to approve and adopt this Agreement and each of the other
Transaction Documents to which it is a party and to consummate the transaction
contemplated hereby and thereby. This Agreement and the other Transaction
Documents to which Xxxxxxxx is a party have been duly and validly executed by
Xxxxxxxx and constitute the legal, valid and binding obligations of Xxxxxxxx
enforceable against Xxxxxxxx in accordance with their respective terms,
subject to bankruptcy, insolvency or other similar laws of general application
affecting creditors' rights and general principles of equity.
3.03 Absence of Conflicts. The execution and delivery by each of Empire and
Xxxxxxxx of this Agreement and each of the other Transaction Documents to
which it is a party, the compliance by each of Empire and Xxxxxxxx with the
terms and conditions hereof and thereof, and the consummation by each of
Empire and Xxxxxxxx of the transactions contemplated hereby and thereby will
not:
(a) conflict with any of the terms, conditions or provisions of the articles
of incorporation or bylaws of either of Empire or Xxxxxxxx,
(b) violate any provision of, or require any consent, authorization or
approval under, any law or administrative regulation or any judicial,
administrative or arbitration order, award, judgment, writ, injunction or
decree applicable to, or any Permit issued to, or notice to or filing with any
Governmental Authority with respect to either of Empire or Xxxxxxxx,
(c) violate, conflict with, result in a breach of any provision of or the loss
of any benefit under, constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or require any
consent, authorization or approval under, any of the terms conditions or
provisions of any note, bond mortgage, indenture, Lien or other agreement,
instrument for borrowed money, any guarantee of any agreement or instrument
for borrowed money or any license, lease or any other agreement or instrument
to which either of Empire or Xxxxxxxx is a party or by which it is bound or to
which any of its properties or assets is subject,
14
(d) result in the creation of any Lien upon any of the assets of either of
Empire or Xxxxxxxx, or
(e) give to others any material rights or interests (including rights of
purchase, termination, cancellation or acceleration) under any such indenture,
mortgage, Lien, lease, agreement or instrument, which, with respect to the
matters specified in clauses (b) through (e) of this Section 3.03 could
reasonably be expected to delay, prevent or hinder in any material respect the
transactions contemplated hereby.
3.04 Litigation and Claims. There are no actions, suits or proceedings
pending or, to the knowledge of Xxxxxxxx or Empire, threatened against either
of Empire or Xxxxxxxx which could reasonably be expected, if adversely
determined, to delay, prevent or hinder the consummation of the transactions
contemplated by this Agreement.
3.05 Brokers' Fees. Neither Empire nor Xxxxxxxx has incurred any liability
for brokerage fees, finder's fees, agent's commissions or other similar forms
of compensation in connection with this Agreement or any transactions
contemplated hereby for which York or the Companies will be responsible.
3.06 Governmental Approvals. No consents or approvals of or filings or
registrations with Governmental Authority, or with any third party are
required to be made or obtained by either of Empire or Xxxxxxxx in connection
with (i) the execution and delivery by each of Empire and Xxxxxxxx of this
Agreement and the other Transaction Documents and (ii) the consummation by
each of Empire and Xxxxxxxx of the transactions contemplated by this
Agreement.
3.07 Warranties. YORK AND THE COMPANIES HAVE NOT MADE, AND YORK AND THE
COMPANIES HEREBY EXPRESSLY DISCLAIM AND NEGATE, ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WHATSOEVER, RELATING TO
ANY IMPLIED OR EXPRESSED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ANY IMPLIED OR EXPRESSED WARRANTY CONCERNING
ENVIRONMENTAL CONDITION, ZONING, FLOODING OR DRAINAGE CHARACTERISTICS,
WETLANDS STATUS, FAULTING CHARACTERISTICS OR SOIL CONDITIONS WITH RESPECT TO
THE COMPANIES AND THE ASSETS. EMPIRE AND XXXXXXXX ACKNOWLEDGE THAT
ENVIRONMENTAL PERMITS ARE REQUIRED FOR EMPIRE TO OWN AND OPERATE CERTAIN OF
THE ASSETS AND THAT LICENSES OR OTHER APPROVALS MAY BE REQUIRED TO OPERATE
CERTAIN OF THE ASSETS. EMPIRE AND XXXXXXXX ACKNOWLEDGE AND AGREE THAT CERTAIN
OF THE ENVIRONMENTAL PERMITS OF THE COMPANIES OR THE ASSETS AND ANY APPLICABLE
LICENSES NECESSARY TO OPERATE SUCH ASSETS MAY NOT BE FREELY ASSIGNABLE TO
EMPIRE. EMPIRE AND XXXXXXXX ACKNOWLEDGE AND AGREE THAT UNDER SOME
CIRCUMSTANCES THERE MAY BE A PERIOD OF TIME BETWEEN ACQUISITION OF AN ASSET
AND ISSUANCE, REISSUANCE OR TRANSFER OF A PERMIT BY A GOVERNMENTAL AUTHORITY,
AND, SUBJECT TO THE OBLIGATIONS OF YORK UNDER THIS AGREEMENT TO COOPERATE WITH
AND ASSIST EMPIRE IN CONNECTION THEREWITH, EMPIRE ASSUMES ALL RISKS RELATED
THERETO, INCLUDING RISK OF FINES AND PENALTIES ASSOCIATED WITH ACQUISITION AND
OPERATION OF AN ASSET PRIOR TO ISSUANCE, REISSUANCE OR TRANSFER OF A PERMIT OR
LICENSE. IF ANY ENVIRONMENTAL PERMITS ARE ISSUED, REISSUED, OR TRANSFERRED TO
EMPIRE, EMPIRE AND XXXXXXXX UNDERSTAND AND ACKNOWLEDGE THAT THEY MAY CONTAIN
DIFFERENT OR LESS FAVORABLE TERMS THAN THOSE ENVIRONMENTAL PERMITS CURRENTLY
HELD BY YORK OR THE COMPANIES. EMPIRE AND XXXXXXXX ACKNOWLEDGE THAT THE
PROVISIONS OF THIS SECTION 3.07 ARE A MATERIAL PORTION OF THE INDUCEMENT TO
THE COMPANIES TO SELL THE ASSETS TO EMPIRE, AND THAT BUT FOR SUCH PROVISIONS,
THE COMPANIES WOULD NOT SELL THE ASSETS TO EMPIRE.
15
ARTICLE IV
Covenants
4.01 Employees. (a) None of Xxxxxxxx, Empire, the Companies nor York intends
this Agreement to create any rights or interests, except as between Xxxxxxxx,
Empire, the Companies and York, and no present, former or future employee of
Xxxxxxxx, Empire, the Companies or York shall be treated as a third party
beneficiary by, in or under this Agreement. Nothing in this Agreement shall
affect the ability of Xxxxxxxx or Empire to hire or terminate the employment
of employees.
(b) York shall be liable for compliance with the WARN Acts insofar as they
relate to any facilities closing, mass layoff or similar event which occurs
before the Closing. Xxxxxxxx and Empire shall be liable for compliance with
the WARN Acts insofar as they relate to any facilities closing, mass layoff or
similar event which occurs upon or after the Closing.
4.02 Financial Statements. York will cause its auditors to provide to
Xxxxxxxx and to Empire, on or prior to sixty five (65) days after the date
hereof, the audited financial statements of the Companies which are necessary
for Xxxxxxxx to meet its reporting obligations under Items 2 and 7 of Form 8-K
under the Securities Exchange Act of 1934, as amended. Xxxxxxxx shall pay to
York one half of the fees of York's auditors in connection with the same.
4.03 Tax Matters. Xxxxxxxx, York and the Companies agree to furnish or cause
to be furnished to each other, upon request, as promptly as practicable, such
information and assistance relating to the Companies (including, without
limitation, access to books and records) as is reasonably necessary for the
filing of all Tax Returns, and making of any election related to Taxes, the
preparation for any audit by any taxing authority, and the prosecution or
defense of any claim, suit or proceeding relating to any Tax Return.
Xxxxxxxx, York and the Companies will retain all books and records with
respect to Taxes pertaining to the Companies for a period of at least six (6)
years following the Closing. Xxxxxxxx, York and the Companies will cooperate
with each other in the conduct of any audit or other proceeding related to
Taxes and each will execute and deliver such powers of attorney and other
documents as are necessary to carry out the intent of this Section 4.03.
4.04 Uses of Names. (a) Effective from and after the Closing and up to
December 31, 2001, York hereby grants the Xxxxxxxx Group the nonexclusive,
royalty-free right to use (without right of sublicense) the name "York Bronze"
any derivative thereof and any corporate symbols or logos related thereto, but
only in connection with the conduct and operation of the businesses of the
Companies, provided, however, that the Xxxxxxxx Group shall not represent or
hold itself out as representing York and provided further, however, that the
Xxxxxxxx Group shall indemnify and hold harmless York from and Adverse
Consequences incurred by York as a result of the Xxxxxxxx Group's use of such
names or symbols or logos.
(b) The Xxxxxxxx Group acknowledges that, except for the limited right granted
by this Section, the Xxxxxxxx Group has no right or interest in the name
"York" or any trade name, service name, trademark or service xxxx or logos
relating thereto. Except as set forth in this Section, the Xxxxxxxx Group
shall not use any name, trade name, service xxxx, trademark, service xxxx or
any related logos or symbols incorporating "York" in any manner whatsoever.
Prior to December 31, 2001, the Xxxxxxxx Group shall take all such action as
is necessary to cause the
16
Companies to make all filings as necessary to change their corporate names to
names that do not contain "York" or any substantially or confusingly similar
name or reference, and thereafter, the Xxxxxxxx Group shall take all such
action as is necessary to cause the Xxxxxxxx Group and its Affiliates to cease
using any name, trade name, trademark or service xxxx or any related logos or
symbols incorporating "York" in any manner whatsoever.
ARTICLE V
Remedies for Breaches of this Agreement
5.01 Survival of Representations, Warranties and Covenants. All of the
representations, warranties and covenants of the parties contained in this
Agreement shall survive the Closing (even if the damaged party knew or had
reason to know of any misrepresentation or breach of warranty at the time of
the Closing) and shall continue in full force and effect thereafter for a
period of one (1) year; provided, that (a) Sections 7.01 and 7.02 shall
survive for the applicable statute of limitations period and (b) Sections
5.03(a)(ii) and (iii) shall survive the Closing without limitation. XXXXXXXX
AND EMPIRE HEREBY WAIVE FROM AND AFTER CLOSING TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY AND ALL RIGHTS, CLAIMS, ACTIONS OR CAUSES OF ACTION EITHER OF THEM
MAY HAVE AGAINST YORK AND ITS AFFILIATES RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT AND THE CERTIFICATES AND OTHER DOCUMENTS DELIVERED PURSUANT TO
THIS AGREEMENT, OTHER THAN CLAIMS UNDER SECTIONS 5.02, 7.01 and 7.02 AND OF
FRAUD AND RIGHTS, CLAIMS, ACTIONS AND CAUSES OF ACTION ARISING OUT OF A BREACH
OF ANY COVENANT OR AGREEMENT OF YORK. FURTHER, EXCEPT AS PROVIDED IN SECTIONS
5.02, 7.01 AND 7.02 XXXXXXXX AND EMPIRE WAIVE, RELEASE AND COVENANT NOT TO XXX
YORK AND ITS AFFILIATES FOR ANY DAMAGES OF ANY KIND OR CHARACTER, ARISING
UNDER ANY ENVIRONMENTAL LAW (STATUTORY, REGULATORY, COMMON LAW OR OTHERWISE)
RELATING TO ANY DAMAGE, INCLUDING STRICT LIABILITY, INCURRED OR ALLEGEDLY
INCURRED BY EITHER OF XXXXXXXX OR EMPIRE. IN ADDITION, XXXXXXXX AND EMPIRE
COVENANT AND AGREE THAT NEITHER OF THEM SHALL FILE ANY CLAIMS WITH ANY INSURER
OF YORK OR ITS AFFILIATES FOR RECOVERY UNDER ANY INSURANCE POLICIES COVERING
YORK OR ITS AFFILIATES AND DO HEREBY WAIVE, IRREVOCABLY AND FOREVER AND TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHTS THEY MAY HAVE TO RECOVER UNDER
SUCH INSURANCE POLICIES; PROVIDED, HOWEVER, THAT XXXXXXXX SHALL HAVE THE RIGHT
TO CLAIM AGAINST THE AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY
POLLUTION LEGAL LIABILITY SELECT POLICY, POLICY NUMBER PLS2674645, ISSUED TO
YORK.
5.02 Indemnification Provisions for Benefit of Xxxxxxxx and Empire. (a)
Subject to the terms and conditions of this Article V, if there is any breach
or inaccuracy of any of the representations, warranties or covenants of York
or either of the Companies contained herein, or if any third party alleges
facts that, if true, would mean that such a breach or inaccuracy existed, and
provided that the Parent Group delivers to York, pursuant to Section 5.04
hereof, a claim for indemnification with respect to such alleged breach or
inaccuracy, then York shall indemnify the Parent Group, from and against all
Adverse Consequences that the Parent Group has suffered caused by, resulting
from, arising out of or relating to such breach or inaccuracy through and
after the date of such claim. For purposes of this Agreement, the "Parent
Group" shall mean either or both of Xxxxxxxx and Empire.
(b) York's obligations under Section 5.02(a) shall be subject to the following
limitations:
(i) York shall not have any liability to the Parent Group for Adverse
Consequences for any breach of the representations, warranties or covenants
under this Agreement or the Stock Purchase Agreement to the extent the
aggregate
17
amount of all such Adverse Consequences for which York would otherwise be
liable under this Agreement and under Section 5.02(a) of the Stock Purchase
Agreement exceeds Ten Million Dollars ($10,000,000);
(ii) York shall not have any liability to the Parent Group for Adverse
Consequences for any breach of the representations or warranties under this
Agreement or under the Stock Purchase Agreement unless and until the aggregate
amount of all such Adverse Consequences relating thereto for which York would,
but for this Section 5.02(b)(ii) or Section 5.02(b)(ii) of the Stock Purchase
Agreement, be required to indemnify the Parent Group exceeds on a cumulative
basis an amount (the "Basket Amount") equal to Five Hundred Thousand Dollars
($500,000), at which point York, subject to the further terms, conditions and
limitations of this Agreement and the Stock Purchase Agreement, shall
indemnify the Parent Group for all Adverse Consequences exceeding the Basket
Amount;
(iii) if a reserve (in the form of an accrued Liability or an offset to an
asset or similar item) was reflected in the Financial Statements relating to
any matter for which the Parent Group would otherwise be entitled to
indemnification under this Agreement or the Stock Purchase Agreement, then the
calculation of the Parent Group's Adverse Consequences in respect of such
matter shall be reduced by the full amount of the reserve as reflected in
Financial Statements; and
(iv) the obligations to indemnify and hold the Parent Group harmless shall
terminate as to each representation, warranty and covenant when each such
representation, warranty or covenant terminates; provided, however, that such
obligations to indemnify and hold harmless shall not terminate with respect to
any item as to which the Parent Group shall have, prior to the expiration of
the applicable period, previously made a claim by delivering an
indemnification notice pursuant to Section 5.04 and in compliance with the
requirements therefor, but only with respect to the content of, and on the
basis set forth in, such indemnification notice.
(c) York's obligation to indemnify Parent Group under Section 5.02(a) shall
not be affected or limited by Parent Group's obligation to indemnify York and
its Affiliates under Section 5.03(a)(iii)(3).
5.03 Indemnification Provisions for Benefit of York.
(a) Subject to the terms and conditions of this Article V, Xxxxxxxx and Empire
shall have the following indemnification obligations:
(i) If there is any breach or inaccuracy of any of the representations,
warranties or covenants of the Parent Group contained herein, or if any third
party alleges facts that, if true, would mean that such a breach or inaccuracy
existed, and provided that York delivers to the Parent Group pursuant to
Section 5.04 hereof a claim for indemnification with respect to such alleged
breach or inaccuracy, then Xxxxxxxx and Empire, jointly and severally, shall
indemnify York from and against all Adverse Consequences that York has
suffered or may suffer caused by, resulting from, arising out of or relating
to such breach or inaccuracy through and after the date of such claim.
(ii) Xxxxxxxx and Empire, jointly and severally, shall also indemnify York and
its Affiliates for any fines, penalties and Adverse Consequences relating to
any recission (but not attorneys' fees) arising out of any violation of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the
rules and regulations thereunder in connection with the transactions
contemplated by this
18
Agreement, the Stock Purchase Agreement and any other agreements among the
parties or their Affiliates.
(iii) Empire and Xxxxxxxx, jointly and severally, shall indemnify York and its
Affiliates from and against any and all Liabilities and other Adverse
Consequences resulting from, arising out of or relating to (1) the Liquidation
of OMC and/or York Bronze, (2) any attempt by a third party to recover any
amount of the Actual York Liquidation Proceeds from York or its Affiliates,
and (3) any failure by Sub 1 or any of its Affiliates to fully pay, perform or
otherwise satisfy any of the Assumed Liabilities as defined in the
Contribution, Assignment and Assumption Agreement dated as of May 21, 2001;
provided, however, that Xxxxxxxx and Empire shall not be required to indemnify
York and its Affiliates under this Section 5.03(a)(iii)(3) if and only to the
extent that (and only for so long as) Parent Group is entitled to
indemnification from York under Section 5.02(a).
(b) The Parent Group's obligations under Section 5.03(a)(i) shall be subject
to the following limitations:
(i) The Parent Group shall not have any liability for Adverse Consequences for
any breach of representations, warranties or covenants under Section
5.03(a)(i) of this Agreement or Section 5.03(a)(i) of the Stock Purchase
Agreement to the extent the aggregate amount of all such Adverse Consequences
for which the Parent Group would otherwise be liable under Section 5.03(a)(i)
of this Agreement and under Section 5.03(a)(i) of the Stock Purchase Agreement
exceeds Ten Million Dollars ($10,000,000) Dollars;
(ii) The Parent Group shall not have any liability for Adverse Consequences
for any breach of the representations or warranties under Section 5.03(a)(i)
of this Agreement and Section 5.03(a)(i) of the Asset Purchase Agreement
unless and until the aggregate amount of all such Adverse Consequences
relating thereto for which the Parent Group would, but for this Section
5.03(b)(ii) or Section 5.03(b)(ii) of the Stock Purchase Agreement, be
required to indemnify York exceeds on a cumulative basis a Basket Amount equal
to Five Hundred Thousand Dollars ($500,000), at which point, the Parent Group,
subject to the further terms, conditions and limitations of this Agreement and
the Stock Purchase Agreement, shall indemnify York for all Adverse
Consequences exceeding the Basket Amount; and
(iii) the obligations to indemnify and hold York harmless shall terminate as
to each representation, warranty and covenant when each such representation,
warranty or covenant terminates; provided, however, that such obligations to
indemnify and hold harmless shall not terminate with respect to any item as to
which York shall have, prior to the expiration of the applicable period,
previously made a claim by delivering an indemnification notice pursuant to
Section 5.04 and in compliance with the requirements therefor, but only with
respect to the content of, and on the basis set forth in, such indemnification
notice.
(c) Notwithstanding anything to the contrary in this Agreement or the Stock
Purchase Agreement, the limitations set forth in Sections 5.03(b)(i), (ii) and
(iii) above shall not apply to or otherwise limit in any manner the
obligations of Xxxxxxxx and Empire under Sections 5.03(a)(ii) and (iii) above.
5.04 Notice of Claim for Indemnification. No claim for indemnification
hereunder shall be valid unless notice of such claim is delivered to the
Parent Group (in the case of a claim by York) or to York (in the case of a
claim by the
19
Parent Group) prior to or upon the date of expiration of the representation,
warranty or covenant pursuant to which such indemnification is sought. Any
such notice shall set forth in reasonable detail, to the extent known by the
person giving such notice, the facts on which such claim is based and the
estimated amount of Adverse Consequences resulting therefrom.
5.05 Matters Involving Third Parties. (a) If the Parent Group or York
receives notice or acquires knowledge of any matter which may give rise to a
claim by another Person and which may then result in a claim for
indemnification under this Article V, then (i) if such notice or knowledge is
received or acquired by the Parent Group, the Parent Group shall within twenty
(20) days notify York thereof, and (ii) if such notice or knowledge is
received or acquired by York, York shall within twenty (20) days notify the
Parent Group thereof; provided, however, that no delay in giving such notice
shall diminish any obligation under this Article V to provide indemnification
unless (and then solely to the extent that) the party from whom such
indemnification is sought is prejudiced. Thereafter, the party seeking
indemnification (the "Indemnified Party") shall deliver to the party from whom
such indemnification is sought (the "Indemnifying Party"), within five
business days after the Indemnified Party's receipt thereof, copies of all
notices, correspondence and documents (including, without limitation, court
papers) received by the Indemnified Party relating to the Third Party Claim.
(b) The Indemnifying Party shall have the right to defend against such claim
by another Person (the "Third Party Claim") with counsel of the Indemnifying
Party's choice reasonably satisfactory to the Indemnified Party so long as
(within thirty (30) days after the Indemnified Party has given notice of the
Third Party Claim to the Indemnifying Party, the Indemnifying Party notifies
the Indemnified Party that the Indemnifying Party will indemnify the
Indemnified Party from and against all Adverse Consequences the Indemnified
Party may suffer caused by, resulting from, arising out of or relating to such
Third Party Claim and the Indemnifying Party conducts the defense of the Third
Party Claim actively and diligently. Notwithstanding any acknowledgement made
pursuant to Section 5.05(b)(i), York shall continue to be entitled to assert
any defense to or limitation on its indemnification responsibility contained
in Section 5.02.
(c) So long as the Indemnifying Party is conducting the defense of the Third
Party Claim in accordance with Section 5.05(b) hereof, (i) the Indemnified
Party may retain separate co-counsel at its sole cost and expense and
participate in the defense of the Third Party Claim, it being understood,
however, that the Indemnifying Party shall control such defense, and (ii) the
Indemnified Party shall not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior consent
of the Indemnifying Party. If the Indemnifying Party chooses to defend any
Third Party Claim, the Indemnifying Party shall have the right to control the
defense, compromise or settlement of such matter, and all the parties hereto
shall cooperate in the defense or prosecution of such Third Party Claim. Such
cooperation shall include the execution of documents necessary to effectuate
any reasonable institutional controls that are required as part of a remedial
action approved by a Governmental Authority, retention and (upon the
Indemnifying Party's request) the provision to the Indemnifying Party of
Records that are reasonably relevant to such Third Party Claim, and making
employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder.
Notwithstanding the foregoing, the Indemnifying Party shall not compromise or
settle any Third Party Claim without the consent of the Indemnified Party,
unless such compromise or settlement by the
20
Indemnifying Party involves only the payment of monetary damages by the
Indemnifying Party and includes a full release of the Indemnified Party from
all liability with respect to such Third Party Claim. If the Indemnifying
Party, within a reasonable time after receipt of an Indemnification Notice
relating to a Third Party Claim, chooses not to assume defense of a Third
Party Claim or fails to defend such Third Party Claim actively and diligently,
the Indemnified Party will (upon further notice) have the right to undertake
the defense, compromise or settlement of such Third Party Claim or consent to
the entry of judgment with respect to such Third Party Claim , on behalf of,
and for the account and risk of, the Indemnifying Party, and the Indemnifying
Party shall have no right to challenge the Indemnified Party's defense,
compromise, settlement or consent to judgment, subject to the limitations on
the Indemnifying Party's obligations pursuant to Section 5.02. The foregoing
notwithstanding, in the event that the Indemnifying Party chooses not to
assume defense of a Third Party Claim or fails to defend such Third Party
Claim actively and diligently, but later chooses to assume defense of such
Third Party Claim and gives notice to the Indemnified Party of such
assumption, the Indemnifying Party shall, effective concurrently with the
notice, control such defense, and the Indemnified Party shall not consent to
the entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior consent of the Indemnifying Party.
5.06 Exclusive Remedy. From and after the date hereof, the indemnification
provisions of this Article V shall be the sole and exclusive remedy with
respect to any and all claims relating to the subject matter of this Agreement
(or any related agreements, certificates and other documents, except to the
extent otherwise expressly set forth therein) and no other remedy shall be had
pursuant to any contract, misrepresentation, fraud or other tort theory or
otherwise by Xxxxxxxx or York and their respective officers, directors,
employees, agents, Affiliates, attorneys, consultants, successors and assigns,
all such remedies being hereby expressly waived to the fullest extent
permitted under applicable Law. Without limitation, the procedures set forth
in this Article V constitute the sole and exclusive remedy of Xxxxxxxx and
York and their Affiliates arising out of any breach or claimed breach of the
representations and warranties set forth in Article II and Article III made as
of the date of this Agreement relating to events occurring on or prior to the
date hereof that become known to Xxxxxxxx or York on, prior to or subsequent
to the date hereof. In furtherance of the foregoing, except with respect to
the rights of Xxxxxxxx under this Agreement, Xxxxxxxx hereby waives, from and
after the date hereof, to the fullest extent permitted under applicable Law,
any and all other rights, claims and causes of action it may have against York
and its Affiliates relating to the subject matter of this Agreement arising
under or based upon any federal, state, local or foreign Law or otherwise,
including, without limitation, such rights, claims and causes of action
Xxxxxxxx may have against York under any Environmental Law or Worker Safety
Law (Statutory, Regulatory Common Law or otherwise) or CERCLA.
ARTICLE VI
Definitions
Capitalized terms used herein and not defined shall have the meanings set
forth in the Stock Purchase Agreement. As used herein the following terms
have the following meanings:
21
"Adverse Consequences" shall mean all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, liabilities, obligations, Taxes, Liens, losses, expenses and
fees, including court costs and reasonable attorneys' and accountants' fees
and disbursements.
"Affiliate" shall mean a Person who, directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, the Person specified.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Assets" shall have the meaning set forth in Section 1.01(b).
"Basket Amount" shall have the meaning set forth in Section 5.02(b).
"Closing" shall mean the sale and purchase of the Assets upon the signing of
this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company" or "Companies" shall have the meaning set forth in the preamble
hereto.
"Company Permits" shall have the meaning set forth in Section 2.08(a).
"Contracts" shall have the meaning set forth in Section 2.07.
"Debt Instruments" shall have the meaning set forth in Section 2.09.
"Disclosure Schedules" shall mean the disclosure schedules furnished by the
Companies to Xxxxxxxx and Empire and containing all lists, descriptions,
exceptions, and other information and materials as are required to be included
therein pursuant to this Agreement and the Stock Purchase Agreement.
"Empire" shall have the meaning set forth in the preamble hereto.
"Environmental Laws" shall have the meaning set forth in Section 2.14.
"Financial Statements" shall have the meaning set forth in Section 2.04.
"GAAP" shall have the meaning set forth in Section 2.04.
"Governmental Authority" shall mean any federal, state or local court,
administrative agency or commission or other governmental authority or
instrumentality except any of the same which regulate any antitrust laws.
"Indemnified Party" shall have the meaning set forth in Section 5.05(a).
"Indemnifying Party" shall have the meaning set forth in Section 5.05(a).
"Liability" whether or not capitalized, shall mean any liability (whether
known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due), including any liability for Taxes.
"Lien" shall mean any lien, mortgage, pledge, encumbrance, charge or other
security interest other than Permitted Liens.
"Material Adverse Effect" shall mean an event, occurrence, fact, condition,
change, development or effect that is materially adverse to the business,
property, financial condition or results of operations of the Companies taken
as a whole, or any other a specified Person, excluding specifically any such
event, occurrence, fact, condition, change, development or effect (a)
resultant from changes in general economic or political conditions, (b)
resultant from changes generally applicable to companies engaged in businesses
or industries similar to those in which the specified Person is engaged, (c)
resultant from the announcement of this Agreement or the transactions
contemplated herein, (d) resultant from the announcement of any other
transaction or transactions among York or one or more of its Affiliates and
Xxxxxxxx or one or more of its Affiliates, (e) resultant from any other
transaction or transactions with respect to which York has prior to the date
hereof announced (whether generally or specifically) its intention to
investigate, evaluate or consummate, and (f) set forth in this Agreement or
the Disclosure Schedules.
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"Xxxxxxxx" shall have the meaning set forth in the preamble hereto.
"Xxxxxxxx Group" shall mean, collectively, Xxxxxxxx, Empire and (after the
Closing under the Stock Purchase Agreement) the Companies.
"OMC" shall have the meaning set forth in the preamble hereto.
"OMC Assets" shall have the meaning set forth in Section 1.01(b).
"Parent Group" shall have the meaning set forth in Section 5.02.
"Permits" shall have the meaning set forth in Section 2.08(a).
"Permitted Liens" shall mean (i) liens in respect of pledges or deposits under
workers' compensation laws or similar legislation, carrier's, landlord's,
workmen's, warehousemen's, mechanic's, laborer's, materialmen's or other
similar liens or easements, covenants and encumbrances, if the obligations
secured by same are not then delinquent; (ii) liens for current ad valorem
Taxes, payments of which are not yet delinquent; (iii) liens relating to
accounts payable incurred in the ordinary course of business and consistent
with past practice; (iv) zoning and subdivision laws and regulations; and (v)
such imperfections of title which do not materially detract from the value or
current uses of the property.
"Person" shall mean any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or agency
thereof.
"Purchase Price" shall have the meaning set forth in Section 1.02.
"Sub 1" shall mean York Bronze Trade Company, a West Virginia corporation.
"Stock Purchase Agreement" shall have the meaning set forth in the Recitals.
"Tax" or "Taxes" shall mean any United States Federal, state, local, or
foreign income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, environmental (including taxes under
Code Section 59A), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
alternative minimum, estimated or other tax of any kind whatsoever, including
any interest, penalty or addition thereto, whether disputed or not.
"Tax Return" shall mean any return, declaration, report, claim for refund or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Third-Party Claim" shall have the meaning set forth in Section 5.05(b)
hereof.
"Transaction Documents" shall mean this Agreement, the Contribution,
Assignment and Assumption Agreement referred to in Section 5.03(a)(iii), the
Stock Purchase Agreement, the License Agreement, the Preferred Provider
Agreement and all related agreements and documents.
"York" shall have the meaning set forth in the preamble hereto.
"York Bronze" shall have the meaning set forth in the preamble hereto.
"York Bronze Assets" shall have the meaning set forth in Section 1.01(a).
"York's knowledge" and "Company's knowledge" and similar phrases shall mean
the actual personal knowledge of any of Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxx, Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxxxx or Xxxxx Xxxx.
ARTICLE VII
Miscellaneous
7.01 Further Assurances. From time to time at the request of the other party
hereto and without further consideration, Xxxxxxxx, Empire, York and the
Companies will execute and deliver such further instruments of conveyance and
transfer as the other party may reasonably request in order to consummate the
transactions contemplated herein.
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7.02 Expenses. York will pay from the proceeds of sale all costs and expenses
attributable to the performance of and compliance with all agreements and
conditions contained in this Agreement to be performed or complied with by
York or the Companies prior to the Closing, including, without limitation, all
accounting and legal fees and expenses of York or the Companies accrued prior
to the Closing. Xxxxxxxx and Empire will pay all costs and expenses
attributable to the performance of and compliance with all agreements and
conditions contained in this Agreement to be performed or complied with by
Xxxxxxxx and Empire, after the Closing including, without limitation, all
accounting and legal fees and expenses of Xxxxxxxx and Empire accrued after
the Closing.
7.03 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania.
7.04 Entire Agreement; Modification; Waiver. This Agreement, including the
exhibits, schedules and appendices hereto, constitutes the entire Agreement
among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties and there are no warranties,
representations or other agreements, express or implied, made by any party to
any other party in connection with the subject matter hereof except as
specifically set forth herein or in documents delivered pursuant hereto. To
the fullest extent permitted by law, unless otherwise expressly provided for
herein, no supplement, modification, waiver or termination of this Agreement
shall be binding unless executed in writing by the party to be bound thereby.
No waiver of any provision of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar),
nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
7.05 Notices. All notices, demands, claims, requests, undertakings, consents,
opinions and other communications which may or are required to be given
hereunder or with respect hereto shall be in writing, shall be given either by
personal delivery or by mail, facsimile transmission (with confirmation of
receipt), telegraph, telex or similar means of communication, and shall be
deemed to have been given or made when delivered, if personally delivered, and
otherwise when received, addressed to the respective parties as follows:
If to Xxxxxxxx or to Empire:
Xxxxxxxx International Corporation
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, CFO
Facsimile: 000-000-0000
With a copy which shall not constitute notice to:
Xxxx Xxxxx LLP
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
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If to York or the Companies:
The York Group, Inc.
0000 Xxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
Facsimile: 000-000-0000
With a copy which shall not constitute notice to:
Xxxxx Xxxxxxx & Xxxx LLP
Attn: Xxxxx X. Xxxxxx, Esq.
3400 Chase Tower
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
7.06 Counterparts. This Agreement may be executed in as many counterparts as
may be deemed necessary and convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the same
instrument.
7.07 Matters of Construction, Interpretation and the Like.
(a) Construction. Xxxxxxxx, Empire, the Companies and York have participated
jointly in the negotiation and drafting of this Agreement. If an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by Xxxxxxxx, Empire, the Companies and York and no
presumption or burden of proof shall arise favoring or disfavoring either
Xxxxxxxx, Empire, the Companies or York because of the authorship of any of
the provisions of this Agreement. Any reference to any United States Federal,
state, local or foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires
otherwise. Unless the context of this Agreement otherwise requires, (a) words
of any gender are deemed to include each other gender; (b) words using the
singular or plural number also include the plural or singular number,
respectively; (c) the terms "hereof," "herein," "hereby," "hereto," and
derivative or similar words refer to this entire Agreement; (d) the terms
"Article" or "Section" refer to the specified Article or Section of this
Agreement; (e) the term "party" means, on the one hand, Xxxxxxxx, on the other
hand, York, (f) the word "including" means "including without limitation"; and
(g) all references to "dollars" or "$" refer to currency of the United States
of America. The exhibits and schedules specified in this Agreement are
incorporated herein by reference and made a part hereof. The article and
section headings hereof are for convenience only and shall not affect the
meaning or interpretation of this Agreement.
(b) Severability. The invalidity or unenforceability of one or more of the
provisions of this Agreement in any situation in any jurisdiction shall not
affect the validity or enforceability of any other provision hereof or the
validity or enforceability of the offending provision in any other situation
or jurisdiction.
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7.08 No Third-Party Beneficiaries. This Agreement shall not confer any rights
or remedies upon any Person other than Xxxxxxxx, Empire, the Companies, York
and each of their respective successors and permitted assigns.
7.09 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign this Agreement or any
of such party's rights, interests or obligations hereunder without the prior
written approval of the other parties hereto.
7.10 Time of Essence. With regard to all dates and time periods set forth or
referred to in this Agreement, time is of the essence.
[Signature page to follow]
26
IN WITNESS WHEREOF, the parties hereto have duly executed this Asset Purchase
Agreement or have caused this Asset Purchase Agreement to be duly executed as
of the date first above written.
XXXXXXXX INTERNATIONAL CORPORATION
By Xxxxx X. Xxxxx
Title President
EMPIRE STOCK CORP.
By Xxxxx X. Xxxxx
Title President
THE YORK GROUP, INC.
By Xxxxxx X. Xxxxxxxx
Title CEO & President
YORK BRONZE COMPANY
By Xxxxxx X. Xxxxxxxx
Title CEO & President
OMC INDUSTRIES, INC.
By Xxxxxx X. Xxxxxxxx
Title CEO & President
