Exhibit 2.1
ASSET PURCHASE AGREEMENT
AMONG
FORT XXXXX CORPORATION,
ACX TECHNOLOGIES, INC.
AND
GRAPHIC PACKAGING CORPORATION
Dated as of April 25, 1999
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1 Definitions 1
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1 Purchase and Sale 7
2.2 Excluded Assets 8
2.3 Assumed Liabilities; Excluded Liabilities 8
ARTICLE III
PURCHASE PRICE, WORKING CAPITAL ADJUSTMENT
3.1 Purchase Price 10
3.2 Working Capital Adjustment 10
3.3 Additional Payments 11
ARTICLE IV
RELATED AGREEMENTS
4.1 Related Agreements 12
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF FORT XXXXX
5.1 Organization; Qualification 13
5.2 Authority Relative to this Agreement and the
Related Agreements 13
5.3 Consents and Approvals 13
5.4 Non-Contravention 13
5.5 Compliance with Laws 14
5.6 Environmental Matters 14
5.7 Licenses and Permits 14
5.8 Financial Statements 15
5.9 Litigation 15
5.10 Title to Properties 15
5.11 Leases 15
5.12 Intellectual Property 16
5.13 Listed Contracts 17
5.14 Labor Matters 17
5.15 Employee Benefit Plans 18
5.16 Conduct of Business and Management of Assets 19
5.17 Finders 20
5.18 Sufficiency of Assets 20
5.19 Customers 20
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
6.1 Organization; Qualification 21
6.2 Authority Relative to this Agreement and the
Related Agreements 21
6.3 Non-Contravention 21
6.4 Consents and Approvals 21
6.5 Litigation 21
6.6 Availability of Funds 22
6.7 Finders 22
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Conduct of Business and Management of Assets 22
7.2 Forbearances by Fort Xxxxx 22
7.3 Mail Received After Closing 23
7.4 Retention of Books and Records 23
7.5 Expenses 24
7.6 Confidentiality 24
7.7 Public Announcements 25
7.8 Efforts to Consummate 25
7.9 Further Assurances 25
7.10 Use of Fort Xxxxx Name 25
7.11 No Solicitation of Employees 26
7.12 Antitrust Filings 26
7.13 Title Matters 27
7.14 Tax Matters 28
7.15 Access to Assets and Business Employees 28
7.16 Substitute Letters of Credit; Guarantees 28
7.17 Consents and Approvals 28
7.18 Negotiations 29
7.19 Audited Financial Statements 29
7.20 Year 2000 Compliance Program 29
ARTICLE VIII
BUSINESS EMPLOYEE AND EMPLOYEE BENEFIT MATTERS
8.1 Business Employees 29
8.2 Employment 30
8.3 Employee Benefits 30
8.4 Assumption of Liabilities 32
8.5 Collective Bargaining Agreements 32
8.6 Pension Plan for Salaried Business Employees 33
8.7 401(k) Plan 33
8.8 Pension Plan For Hourly Buiness Employees 34
8.9 Worker's Compensation 37
8.10 Vacation Pay 37
8.11 Welfare Plans 37
8.12 Plant Closing Laws 37
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF BUYER
9.1 Representations and Warranties 38
9.2 Performance of this Agreement 38
9.3 Proceedings 38
9.4 Consents and Approvals 38
9.5 Injunction, Litigation, etc. 38
9.6 Legislation 38
9.7 Related Agreements 38
9.8 Material Adverse Change 38
9.9 Opinion of Counsel for Fort Xxxxx 39
9.10 Officer's Certificate 39
9.11 Audited Financial Statements 39
ARTICLE X
CONDITIONS TO OBLIGATIONS OF FORT XXXXX
10.1 Representations and Warranties 39
10.2 Performance of this Agreement 39
10.3 Proceedings 39
10.4 Consents and Approvals 39
10.5 Injunction, Litigation, etc. 39
10.6 Legislation 40
10.7 Related Agreements 40
10.8 Officer's Certificate 40
ARTICLE XI
DELIVERIES, ETC., IN CONNECTION WITH CLOSING
11.1 Time and Place of Closing 40
11.2 Deliveries by Fort Xxxxx 40
11.3 Deliveries by Buyer 41
11.4 Deliveries of Related Agreements 41
ARTICLE XII
INDEMNIFICATION
12.1 Indemnification by Fort Xxxxx 41
12.2 Indemnification by Buyer 43
12.3 Article VIII Rights and Obligations Excluded 43
12.4 Survival Date 43
12.5 Definition of Loss 44
12.6 Third Party Claims 44
12.7 Subrogation Rights; No Duplication 45
ARTICLE XIII
TERMINATION, AMENDMENT AND WAIVER
13.1 Termination 45
13.2 Effect of Termination 46
13.3 Amendment 46
13.4 Extension; Waiver 46
ARTICLE XIV
GENERAL PROVISIONS
14.1 Notices 46
14.2 Interpretation 47
14.3 Counterparts 47
14.4 Miscellaneous 47
14.5 Third Party Beneficiaries 48
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of
April 25, 1999, is made among FORT XXXXX CORPORATION, a Virginia
corporation ("Fort Xxxxx"), ACX TECHNOLOGIES, INC., a Colorado
corporation ("ACX") and GRAPHIC PACKAGING CORPORATION, a Delaware
corporation ("GPC," and together with ACX, "Buyer").
RECITALS
WHEREAS, Fort Xxxxx desires to sell, or cause its
Subsidiaries to sell, the assets described herein and Buyer
desires to purchase such assets, for the consideration
hereinafter set forth, including the assumption of certain
liabilities.
NOW THEREFORE, in consideration of the foregoing and the
representations, warranties, and agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used herein, the following terms have
the following meanings:
"accumulated funding deficiency" has the meaning set forth
in Section 5.15(d).
"Affiliate," with respect to any party, means a party,
person or entity that, directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under
common control with, such party, whether through the ownership of
voting securities, by contract or otherwise; provided, that with
respect to Buyer, Affiliate shall not include Coors Brewing
Company, Xxxxxx Xxxxx Company and their respective affiliates
except ACX and its direct and indirect subsidiaries.
"Agreement" has the meaning set forth in the introductory
paragraph hereof.
"Allocation Schedule" has the meaning set forth in Section
7.14(b).
"Antitrust Laws" means the Xxxxxxx Act, the Xxxxxxx Act, the
Antitrust Improvements Act, the Federal Trade Commission Act, and
all other federal and state statutes, rules, regulations, orders,
decrees, administrative and judicial doctrines, and other laws
that are designed or intended to prohibit, restrict or regulate
actions having the purpose or effect of monopolization or
restraint of trade.
"Applicable Percentage" has the meaning set forth in Section
12.1(c).
"Assets" has the meaning set forth in Section 2.1.
"Asset Transfer Date" has the meaning set forth in Section
8.8(g).
"Assumed Collective Bargaining Agreements" has the meaning
set forth in Section 8.5(a).
"Assumed Liabilities" has the meaning set forth in Section
2.3(a).
"Authority" means any national, federal, state or local
governmental, judicial or regulatory agency or authority within
or outside the United States.
"Basket" has the meaning set forth in Section 12.1(b).
"Business" means the business customarily operated by the
packaging business of Fort Xxxxx with respect to the products
manufactured at the Transferred Sites. For purposes of clarity,
it is understood that the "Business" excludes (i) the business
operated in the St. Mary's, Georgia and Naheola, Alabama
facilities and (ii) the land and buildings located in Redmond,
Washington and Chambersburg, Pennsylvania.
"Business Employees" has the meaning set forth in Section
8.1.
"Business Intellectual Property" has the meaning set forth
in Section 2.1(d).
"Buyer" has the meaning set forth in the introductory
paragraph hereof.
"Buyer's DC Plan" has the meaning set forth in Section
8.7(a).
"Buyer FSA Plan" has the meaning set forth in Section
8.3(e).
"Buyer's Pension Plan" has the meaning set forth in Section
8.8(a).
"Buyer's Pension Trust" has the meaning set forth in Section
8.8(d).
"Cap" has the meaning set forth in Section 12.1(b).
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act codified at 42 U.S.C. 9601 et
seq. (including the amendments made by the Superfund Amendments
and Reauthorization Act of 1986).
"Closing" has the meaning set forth in Section 11.1.
"Closing Balance Sheet" has the meaning set forth in Section
3.2(a).
"Closing Date" has the meaning set forth in Section 11.1.
"Closing Working Capital" has the meaning set forth in
Section 3.2(a).
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" has the meaning set forth in
Section 7.6.
"Disputed Items" has the meaning set forth in Section
3.2(b).
"Employee Plans" has the meaning set forth in Section
5.15(a).
"Environmental Accrual Date" has the meaning set forth in
Section 12.1(c).
"Environmental Condition" means any condition existing at
any Transferred Site that relates to (i) the emission, discharge,
disposal, release or threatened release of any Hazardous
Substance into the environment, (ii) the treatment, storage,
recycling or other handling of any Hazardous Substance, or (iii)
the presence of any Hazardous Substance, including, but not
limited to, asbestos, in any building, structure or workplace or
on any of the Transferred Sites.
"Environmental Laws" means Environmental Statutes and any
common law governing the contamination, pollution or protection
of the environment or allocating liabilities in respect thereof.
"Environmental Statutes" means federal, state and local
statutes and regulations promulgated thereunder intended to
provide protection for public health and the environment,
including, without limitation, the Clean Air Act, the Clean Water
Act, CERCLA, the Solid Waste Disposal Act (including the Resource
Conservation and Recovery Act), the Toxic Substances Control Act,
their state statutory and regulatory counterparts and other
substantially similar foreign statutes and regulations.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" means any member of a controlled group of
corporations, any member of a group of trades or businesses under
common control, or any member of an affiliated service group with
Fort Xxxxx within the meaning of Section 414(b), (c), (m), or (o)
of the Code, or Section 4001(a)(14) of ERISA.
"Excluded Assets" has the meaning set forth in Section 2.2.
"Excluded Liabilities" has the meaning set forth in Section
2.3(b).
"Filed Business Intellectual Property" means trade names,
trademarks and service marks, together with the associated
goodwill, letters patent, copyrights, design registrations and
inventor certificates as well as applications, registrations, and
certificates for any of the foregoing or any other intellectual
property which is used exclusively in, or applicable exclusively
to, the Business and embodied in a form which is filed or
registered with any Authority.
"Final Closing Working Capital" has the meaning set forth in
Sections 3.2(b) and 3.2(d).
"FJ 401(k) Plan" has the meaning set forth in Section
8.7(a).
"FJ FSA Plan" has the meaning set forth in Section 8.3(e).
"FJ Group" means Fort Xxxxx and all of its Subsidiaries.
"FJ Pension Plan" has the meaning set forth in Section
8.8(a).
"FJ's Pension Trust" has the meaning set forth in Section
8.8(d).
"Fort Xxxxx" has the meaning set forth in the introductory
paragraph hereof.
"Fort Xxxxx Corporate Designations" has the meaning set
forth in Section 7.10(a).
"Fort Xxxxx Material Adverse Effect" means a material
adverse effect on the consolidated financial position or results
of operations of the Business, taken as a whole, other than as a
result of (i) changes in general economic conditions or general
developments in the packaging industry or (ii) changes which
result from the announcement or performance of this Agreement and
the transactions contemplated hereby and compliance with the
covenants set forth herein.
"GAAP" means United States generally accepted accounting
principles.
"Hazardous Substance" means (i) any hazardous substance,
extremely hazardous substance, hazardous material, hazardous
waste, regulated substance or toxic substance (as those terms are
defined by any applicable Environmental Laws) and (ii) any
chemicals, pollutants, contaminants, or petroleum, crude oil or
any fraction thereof.
"Hourly Business Employees" has the meaning set forth in
Section 8.2(b).
"Indemnitee" has the meaning set forth in Section 12.4(a).
"Indemnitor" has the meaning set forth in Section 12.4(a).
"Inventory" has the meaning set forth in Section 2.1(c).
"Knowledge of Fort Xxxxx" means the actual knowledge of
those officers and employees of Fort Xxxxx listed on
Schedule 1.1-A.
"Large Brokers" has the meaning set forth in Section 5.19.
"Large Customers" has the meaning set forth in Section 5.19.
"Leased Assets" means any real property, improvements,
equipment or other assets leased to a Person within the FJ Group
and used solely in connection with the Business.
"Leased Premises" means that real property leased by Fort
Xxxxx or any of its Subsidiaries, as lessee, and listed on
Schedule 1.1-B.
"Legal Action" has the meaning set forth in Section 12.5.
"Lessee Lease" and "Lessee Leases" have the respective
meanings set forth in Section 5.11.
"Lessor Lease" and "Lessor Leases" have the respective
meanings set forth in Section 5.11.
"Liability" means any liability or obligation (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).
"Listed Contract" has the meaning set forth in Section 5.13.
"Losses" has the meaning set forth in Section 12.5.
"Major Leases" has the meaning set forth in Section 5.11(b).
"Major Leases Title Commitment" has the meaning set forth in
Section 7.13(a).
"Major Leases Title Package" has the meaning set forth in
Section 7.13(b).
"March Balance Sheet" means the unaudited balance sheet for
the Business as of March 28, 1999, reflecting the Business as
proposed to be transferred hereunder, previously delivered by
Fort Xxxxx to Buyer and included as Schedule 3.2(a) hereto.
"Non-Filed Business Intellectual Property" means unpatented
technology, inventions, trade secrets, processes, know-how,
designs and formulae and unfiled trade names, trademarks and
service marks, together with the associated goodwill,
unregistered copyrights and other industrial or intellectual
property which is used exclusively in, or applicable exclusively
to, the Business and not filed or registered with an Authority.
"Opening Working Capital" has the meaning set forth in
Section 3.2(e).
"P&L" has the meaning set forth in Section 5.8(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Exceptions" means (i) statutory liens for current
taxes or assessments not yet due and payable or being contested
in good faith; (ii) terms and conditions of any Lessor Leases;
(iii) the current zoning and subdivision laws and regulations
applicable to any Real Property; and (iv) such liens,
imperfections in title, charges, easements, restrictions,
encumbrances (including any of the foregoing shown by the surveys
referred to in Section 7.13) as would not have a Fort Xxxxx
Material Adverse Effect.
"Person" means an individual, partnership (general or
limited), corporation, association or other form of business
organization (whether or not regarded as a legal entity under
applicable law), trust, estate or any other entity.
"Pre-Closing Environmental Loss" has the meaning set forth
in Section 12.1(c).
"Purchase Price" has the meaning set forth in Section 3.1.
"Rate of Return" has the meaning set forth in Section
8.8(g).
"Real Property" has the meaning set forth in Section 2.1(a).
"Real Property Title Commitment" has the meaning set forth
in Section 7.13(a).
"Real Property Title Package" has the meaning set forth in
Section 7.13(a).
"Related Agreements" has the meaning set forth in Section
4.1.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing into the environment.
"Remedial Actions" means actions required under
Environmental Laws to clean up or to contain or otherwise to
ameliorate or remedy any Environmental Condition, including but
not limited to preventing a Release or threatened Release and
performing studies, investigations and monitoring.
"Representative" has the meaning set forth in Section 7.6.
"Salaried Business Employees" has the meaning set forth in
Section 8.2(b).
"section 411(d)(6) protected benefits" has the meaning set
forth in Section 8.7(a).
"Subsidiary," when used with respect to any Person, means
any corporation or other business entity, whether or not
incorporated, of which such Person holds, directly or indirectly,
more than 50% of the securities or interests having, by their
terms, ordinary voting power to elect members of the Board of
Directors, or other persons performing similar functions with
respect to such entity.
"Title Commitment" has the meaning set forth in Section
7.13(a).
"Title Defect" has the meaning set forth in Section 7.13(a).
"Transfer Amount" has the meaning set forth in Section
8.8(e).
"Transfer Fees" has the meaning set forth in Section 7.5(b).
"Transferred Employees" has the meaning set forth in Section
8.2(a).
"Transferred Hourly Employees" has the meaning set forth in
Section 8.3(a).
"Transferred Pension Participants" has the meaning set forth
in Section 8.8(a).
"Transferred Salaried Employees" has the meaning set forth
in Section 8.3(a).
"Transferred Sites" means the Real Property and the Leased
Premises.
"Transition Services Agreement" has the meaning set forth in
Section 4.1(b).
"Window Period" has the meaning set forth in Section 8.3(a).
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1 Purchase and Sale. Fort Xxxxx agrees to sell and to
cause its Subsidiaries to sell, to Buyer and Buyer agrees to
purchase from Fort Xxxxx and its designated Subsidiaries at
Closing all of the right, title and interest of Fort Xxxxx or
any Person within the FJ Group in and to the following assets,
properties and rights other than the Excluded Assets
(collectively, the "Assets"):
(a) the real property listed in Schedule 2.1(a) together
with the buildings, fixtures and other improvements located
thereon and the appurtenances thereto (the "Real Property");
(b) the machinery, equipment, furniture, vehicles, tools,
supplies and other tangible personal property which (i) is
ordinarily located on the Transferred Sites or (ii) is listed
on the attached Schedule 2.1(b);
(c) the raw materials, work-in-process, finished goods,
stores, supplies and spare parts which are located at the
Transferred Sites or are in transit thereto or which are located
elsewhere and relate solely to the Business (the "Inventory");
(d) except to the extent specified in Schedule 5.12, the
Filed Business Intellectual Property listed in Schedule 5.12,
the Non-Filed Business Intellectual Property listed in Schedule
5.12, and licenses to Filed Business Intellectual Property and
Non-Filed Business Intellectual Property listed in Schedule 5.12
(such Filed Business Intellectual Property, such Non-Filed
Business Intellectual Property, and such licenses thereto,
collectively, the "Business Intellectual Property");
(e) all of the rights of every Person within the FJ Group
under (i) the Listed Contracts, (ii) the Lessee Leases and (iii)
all other contracts and commitments to the extent the same relate
exclusively to the Business;
(f) to the extent assignable, all federal, state, local
and foreign governmental licenses, permits, approvals and
authorizations held by any Person within the FJ Group to the
extent the same relate solely to the Business;
(g) all accounts receivable and notes receivable arising
from the Business, including receivables from Transferred
Employees;
(h) all property records, production records, engineering
records, purchasing and sales records, personnel and payroll
records for Transferred Employees, accounting records, customer
and vendor lists and other records and files (including, but not
limited to, any such records maintained in connection with any
computer system, but subject to the provisions of any applicable
Related Agreement) used exclusively in the Business; a co-
ownership interest in any of the foregoing assets which are used
only in part in the Business, but only to the extent of such use;
and copies of the information relating to the Business contained
in the computer files referred to in Section 2.2(d), but only to
the extent such information relates to the Business; provided,
however, that the transfer of the assets and properties referred
to in this Section 2.1(h) that do not constitute indicia of
title, may, at the option of Fort Xxxxx, consist of transfer of
true, correct and complete copies thereof;
(i) subject to the provisions of Section 7.10, all
purchase orders, forms, labels, stationery, shipping
materials, catalogues, brochures, art work, photographs
and advertising materials which relate solely to the
Business or which are located at any Transferred Site;
(j) those categories of prepaid expenses and deferred
charges created in the ordinary course of the Business
which are listed on Schedule 2.1(j);
(k) all rights, choses in action and claims, known or
unknown, matured or unmatured, accrued or contingent,
against third parties arising solely out of the Business
or the ownership or operation of the Assets; and
(l) Fort Xxxxx' one-third interest in the Kalamazoo
Valley Group Landfill Partnership.
2.2 Excluded Assets. The following assets (the "Excluded
Assets") to the extent that, but for this sentence, they would
constitute Assets, shall not be included in the Assets:
(a) all cash and cash equivalents, including cash on hand
or in bank accounts, certificates of deposit, commercial paper
and securities, except xxxxx cash funds located at the
Transferred Sites;
(b) all prepaid expenses and deferred charges other
than those listed in Schedule 2.1(j);
(c) the real property, improvements, equipment and
all other assets to be leased from a member of the FJ Group
pursuant to any Related Agreement, and any Leased Assets
(other than the leasehold interest therein);
(d) all computer files which contain any records or lists
relating to any business of the FJ Group other than the Business;
(e) the excluded technology listed in Schedule 2.2(e);
(f) all assets listed in Schedule 2.2(f); and
(g) all prepaid insurance premiums.
2.3 Assumed Liabilities; Excluded Liabilities. (a) Except
to the extent set forth in Section 2.3(b), Buyer shall assume, at
the Closing, all Liabilities and obligations of any Person within
the FJ Group to the extent such Liabilities and obligations
relate exclusively to the Business or to the Assets
(collectively, the "Assumed Liabilities"), including, without
limitation, the following:
(i) the current liabilities related to the Business
or the Assets, including, but not limited to, all accounts
and trade payables, all Liabilities and all obligations
accruable as a current liability on Fort Xxxxx' financial
statements at Closing to the extent such payables,
liabilities and obligations are related exclusively to the
Business or the Assets;
(ii) all Liabilities and obligations of any Person
within the FJ Group with respect to goods or services
delivered or to be delivered to customers of the
Business arising from orders placed prior to or following
the Closing;
(iii) all Liabilities and obligations of any Person
within the FJ Group under the Listed Contracts, the Lessee
Leases and any other contract, commitment, license, permit,
approval, authorization or other agreement or arrangement
constituting part of the Assets under Section 2.1(e);
(iv) all Liabilities and obligations of any Person
within the FJ Group existing at Closing and relating to
Business Employees and employee benefits for Business
Employees, except to the extent such liabilities and
obligations are specifically retained by the FJ Group
pursuant to Article VIII;
(v) subject to Section 12.1(c) hereof, all Liabilities
and obligations under Environmental Laws of any Person
within the FJ Group (including, without limitation, any
obligation to conduct or to pay for any Remedial Action for
any Environmental Condition or any obligation to correct or
to pay a penalty for failure to comply with Environmental
Statutes), in connection with facts, events, conditions,
actions or omissions existing or occurring prior to or after
Closing, to the extent that such liability, obligation,
condition or failure (A) exists on any Real Property, or
real property constituting Leased Premises at the Transferred
Sites or (B) is a Liability arising under Environmental Laws
with respect to hazardous substances, contaminants, pollu-
tants or petroleum products leaching or physically migrating
from Transferred Sites to adjacent or nearby properties, and
including, without limitation, those liabilities listed on
Schedule 2.3(a)(v);
(vi) all Liabilities or obligations of any member of
the FJ Group in connection with the Port of Portland
Industrial Development Revenue Bonds; and
(vii) all other Liabilities described on Schedule
2.3(a)(vii).
(b) The following Liabilities and obligations (the
"Excluded Liabilities") shall be excluded from the Assumed
Liabilities:
(i) Liabilities for federal, state and local income
and franchise taxes and any other taxes incurred by any
Persons within the FJ Group in the conduct of the Business
or with respect to the Assets before Closing, except as is
otherwise provided in this Agreement;
(ii) all Liabilities or obligations to the extent
relating to the acquisition, ownership or use of any of the
Excluded Assets;
(iii) all Liabilities or obligations arising under
Environmental Laws in connection with facts, events,
conditions, actions or omissions existing on or occurring
prior to Closing at locations other than the Transferred
Sites; and
(iv) any Liabilities listed on Schedule 2.3(b)(iv).
ARTICLE III
PURCHASE PRICE, WORKING CAPITAL ADJUSTMENT
3.1 Purchase Price. The consideration to be paid for the
Assets (the "Purchase Price") shall be $830 million, in cash,
subject to adjustment as provided in Section 3.2.
3.2 Working Capital Adjustment. (a) Immediately after the
Closing, Fort Xxxxx and Buyer shall jointly cause
PricewaterhouseCoopers LLP to prepare an audited balance sheet of
the Business as of the Closing Date (the "Closing Balance Sheet")
and schedules setting forth the Closing Working Capital as of the
end of the last shift on the day next preceding the date of the
Closing. "Closing Working Capital" shall equal the current
assets less the current liabilities as reflected in the Closing
Balance Sheet. The Closing Balance Sheet shall be prepared on a
basis consistent with the preparation of the March Balance Sheet
and taking into account the assets transferred and liabilities
assumed pursuant to this Agreement. The Closing Balance Sheet
(together with the schedules setting forth Closing Working
Capital), shall be completed and delivered to the parties no
later than 60 days after Closing. All items in the schedules
setting forth the Closing Working Capital the amounts of which
are not objected to or questioned by Fort Xxxxx or Buyer during
the 15-day period following completion and delivery of the
Closing Balance Sheet shall be deemed agreed upon by the parties
and shall be deemed conclusive for purposes of determining the
Final Closing Working Capital, as defined herein.
(b) As promptly as practicable, but no later than 15 days
after completion and delivery of the Closing Balance Sheet, the
parties shall attempt to resolve any items comprising Closing
Working Capital as to which the parties differ (the "Disputed
Items"). If during such 15-day period the parties are able to
resolve all Disputed Items, the Closing Working Capital so
agreed upon shall be the "Final Closing Working Capital."
(c) If during such 15-day period any such Disputed Items
cannot be resolved, those items to the extent of the amounts
agreed upon by the parties shall be deemed agreed upon, shall no
longer constitute Disputed Items and shall be conclusive for
purposes of determining the Final Closing Working Capital and
each of Fort Xxxxx and Buyer shall promptly thereafter but in no
event more than 10 days thereafter cause an accounting firm of
internationally recognized standing reasonably satisfactory to
them promptly to review this Agreement and the remaining
Disputed Items for purposes of resolving the remaining Disputed
Items and calculating the Final Closing Working Capital. In
making such calculation, such accounting firm shall make a
determination only of Disputed Items not resolved by the parties
and in the case of all other items shall use the amounts which
are agreed upon by the parties. Such accounting firm shall
deliver to Fort Xxxxx and to Buyer, as promptly as practicable,
a report setting forth its resolution of the remaining Disputed
Items and its calculation of Closing Working Capital. Such
report shall be final and binding upon the parties hereto. The
cost of such review and report shall be borne by the party
against whom the disagreement is in large part resolved or, if
the resolution does not substantially favor either party, such
costs shall be borne equally by Fort Xxxxx and Buyer. In all
events, such accounting firm will determine the assessment of
such costs.
(d) The Closing Working Capital agreed to by the parties
or as calculated by the accounting firm as set forth in
Section 3.2(c) above, as the case may be, shall be the "Final
Closing Working Capital," which shall be conclusive for all
purposes of this Agreement.
(e) If the Final Closing Working Capital is greater than
$72,294,000 (the "Opening Working Capital"), Buyer shall promptly
pay to (or as directed by) Fort Xxxxx, in the manner and with
interest as provided in Section 3.2(f), the amount of the
difference. If the Final Closing Working Capital is less than
Opening Working Capital, Fort Xxxxx shall promptly pay to (or as
directed by) Buyer, in the manner and with interest as provided
in Section 3.2(f), the amount of the difference. Any such
payment pursuant to this Section 3.2(e) shall be made at a
mutually convenient time and place (i) within 5 business days
after Buyer and Fort Xxxxx agree upon the Final Closing Working
Capital pursuant to Section 3.2(b) or (ii) if Disputed Items are
referred to a firm of independent accountants pursuant to Section
3.2(c), then within 10 business days after the delivery of the
report of such firm referred to in Section 3.2(c).
(f) Any payments pursuant to this Section 3.2(f) shall be
made by causing such payments to be credited in immediately
available funds to the account of Buyer or of Fort Xxxxx, as the
case may be, as may be designated by the party receiving payment.
The amount of any payment to be made pursuant to this Section
3.2(f) shall bear interest from and including the date of Closing
to but excluding the date of payment at a rate per annum equal to
the Prime Rate as published by The Chase Manhattan Bank. Such
interest shall be payable at the same time as the payment to
which it relates and shall be calculated daily on the basis of a
year of 365 days and the actual number of days for which interest
is due.
3.3 Additional Payments. (a) If any Asset or the Business
shall suffer any damage, destruction or loss after the date
hereof, but before the date of Closing, and such Asset or the
Business and the related casualty are covered by any insurance
policy maintained by any Person within the FJ Group: Fort Xxxxx
shall pay to Buyer, as soon as practicable after receipt by Fort
Xxxxx, in cash, the amount by which the proceeds from such policy
in respect of such damage, destruction or loss exceeds the sum of
(i) any amount recorded on the Closing Balance Sheet as a current
liability with respect to repair, restoration or replacement
related to such damage, destruction or loss; (ii) the amount if
any by which the current assets included in the Closing Balance
Sheet shall have been reduced from the current assets shown on
the March Balance Sheet by reason of such damage, destruction or
loss, and (iii) any amount paid by any Person within the FJ Group
after the date hereof in cash for the repair, restoration or
replacement of the damaged or destroyed asset.
(b) All proceeds of insurance which are applicable to
insured claims of third parties included in the Assumed
Liabilities and are received by any Person within the FJ Group
after Closing shall (i) be used to discharge, in whole or in part,
the applicable Assumed Liabilities, (ii) be paid to Buyer if, and
to the extent that, such Assumed Liabilities have been discharged
by Buyer or Buyer has made a reimbursement to Fort Xxxxx in
respect of such claim or (iii) be retained by Fort Xxxxx if, and
to the extent that, such Assumed Liabilities have been discharged
by any Person within the FJ Group and Buyer has not made a
reimbursement to Fort Xxxxx in respect of such claim.
ARTICLE IV
RELATED AGREEMENTS
4.1 Related Agreements. In connection with the
consummation of the transactions contemplated hereby, Fort Xxxxx
(or the Subsidiary of Fort Xxxxx named therein) and Buyer shall
enter into each of the following agreements (collectively, the
"Related Agreements") at or prior to the Closing:
(a) each of the supply agreements listed in Exhibit A
hereto, substantially in the form of Exhibit A hereto, and upon
the terms and conditions set forth in the separate term sheets for
each such agreement included in Exhibit A hereto;
(b) each of the broker agreements listed in Exhibit B
hereto, upon the terms and conditions set forth in such Exhibit B;
and
(c) a transition services agreement (the "Transition
Services Agreement") providing for the provision by Fort Xxxxx to
Buyer of such of the services listed in Exhibit C hereto as Buyer
elects in writing, no later than 20 business days prior to Closing,
upon terms and conditions customary for such arrangements and at a
price to Buyer equal to Fort Xxxxx' fully-loaded cost of
providing such service (which shall be comparable to amounts
reflected in the P&L) in addition to any one-time costs in
connection with the provision of such service. The Transition
Services Agreement will address (i) the operation of the
Chambersburg facility until such facility is shut down (which
shut down is anticipated to occur in July 1999) and (ii) the
removal of the Chambersburg equipment at Buyer's sole cost and
expense following such shut down; provided that Fort Xxxxx shall
be responsible for the disposal of such Chambersburg equipment
that Buyer chooses not to remove. In addition, the Transition
Services Agreement will provide that (i) Fort Xxxxx will xxxxx to
Buyer a royalty-free nonexclusive license relating to Pressed
High Performance plate and related tooling patents and technology
for use in manufacturing food packaging for sale in channels
where food is sold in the packaging at wholesale, and (ii) Fort
Xxxxx will retain in the technology being transferred to Buyer, a
royalty-free nonexclusive license relating to Microwave packaging
patents and technology for use in manufacturing food packaging
for sale in channels where food is not sold in the packaging at
wholesale.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF FORT XXXXX
Fort Xxxxx hereby represents and warrants to Buyer that:
5.1 Organization; Qualification. Fort Xxxxx is a
corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Virginia and has corporate
power and authority to own all of its properties and assets and
to carry on its business as it is now being conducted. Fort Xxxxx
and each member of the FJ Group engaged in the Business are duly
qualified and in good standing to do business in each jurisdiction
in which the property owned, leased or operated by it or the nature
of the business conducted by it makes such qualification necessary
except in those jurisdictions where the failure to be duly
qualified and in good standing would not have a Fort Xxxxx
Material Adverse Effect.
5.2 Authority Relative to this Agreement and the Related
Agreements. Each Person within the FJ Group has the corporate
power and authority to execute and deliver each agreement or
other document to be executed by it in connection with the
transactions contemplated by this Agreement and to consummate the
transactions contemplated on its part thereby. The execution and
delivery by each Person within the FJ Group of each agreement or
other document to be executed by it in connection with the
transactions contemplated by this Agreement, and the consummation
by it of any transactions contemplated on its part hereby and
thereby, have been duly authorized by such Person's Board of
Directors and no other corporate proceedings on the part of such
Person are necessary with respect thereto. Assuming the due
authorization, execution and delivery by Buyer of this Agreement,
this Agreement constitutes, and each agreement or other document
to be executed by a Person within the FJ Group in connection with
the transactions contemplated by this Agreement (when executed
and delivered by Fort Xxxxx or that other Person within the FJ
Group) will constitute, valid and binding obligations of Fort
Xxxxx and/or such other Person within the FJ Group, as the case
may be, enforceable in accordance with their terms.
5.3 Consents and Approvals. Except as set forth in
Schedule 5.3, there is no requirement applicable to any Person
within the FJ Group to make any filing with, or to obtain any
permit, authorization, consent or approval from, any third
party (including any Authority) as a condition to the
consummation of the transactions contemplated by this Agreement,
other than such requirements, the failure of which to satisfy
would not have a Fort Xxxxx Material Adverse Effect.
5.4 Non-Contravention. The execution and delivery by Fort
Xxxxx of this Agreement and by each Person within the FJ Group
of the other agreements and documents to be executed in
connection with the transactions contemplated by this Agreement
and the consummation of the transactions contemplated thereby
will not (a) violate or result in a breach of any provision of
the Articles of Incorporation or Bylaws of Fort Xxxxx or such
other Person within the FJ Group, as the case may be, (b) result
in a default (or give rise to any right of termination,
cancellation or acceleration) under the terms, conditions or
provisions of any note, bond, mortgage, indenture, license,
agreement, lease or other instrument or obligation to which Fort
Xxxxx or such other Person within the FJ Group, as the case may
be, is a party or by which Fort Xxxxx or such other member of the
FJ Group, as the case may be, or any of the Assets may be bound,
except for such defaults (or rights of termination, cancellation
or acceleration) as to which requisite waivers or consents have
been or shall be obtained by Fort Xxxxx before the Closing or
which would not have a Fort Xxxxx Material Adverse Effect, or
(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to any Person within the FJ Group or any of
the Assets or the Business (other than any applicable "bulk
sales" laws), excluding from the foregoing clause (c) such
violations that would not have a Fort Xxxxx Material Adverse
Effect.
5.5 Compliance with Laws. Except as set forth in Schedules
5.5, 5.6 and 5.7 or as would not have a Fort Xxxxx Material
Adverse Effect, all Persons within the FJ Group have operated the
Business in compliance with all laws, regulations, policies,
guidelines, orders, judgments or decrees of any Authority
applicable to, or having jurisdiction over, Persons within the FJ
Group, the Assets or the Business. Except as set forth in
Schedule 5.6, with respect to the Business, to the Knowledge of
Fort Xxxxx: (a) no Person within the FJ Group has received from
any Authority any notice of any failure to so comply, and (b) no
Person within the FJ Group is currently subject to any sanction
for such noncompliance.
5.6 Environmental Matters. Except as described on Schedule
5.6, Persons within the FJ Group have obtained all federal, state
and local permits, licenses and other authorizations and have
submitted all notices, which are required under applicable
Environmental Laws in connection with the Business, other than
licenses, permits, and other authorizations, the failure of which
to obtain would not have a Fort Xxxxx Material Adverse Effect.
Except as described on Schedule 5.6, and except for such
noncompliance as would not have a Fort Xxxxx Material Adverse
Effect, the Assets and the Business are in compliance with all
terms and conditions of such permits, licenses and
authorizations, and are also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables of any
Environmental Law or order, decree, judgment notice or demand
letter entered, promulgated or approved thereunder, and no action
is pending to revoke or modify any such permit, license or
authorization. Except as described on Schedule 5.6, neither Fort
Xxxxx nor any of its Subsidiaries has received notice from any
Authority or Person of any failure of the Assets or the Business
to comply with, or of any liability or any potential liability of
the Assets or the Business under, any Environmental Law, except
for any such Environmental Law the failure to comply with which
would not have a Fort Xxxxx Material Adverse Effect. Except as
set forth in Schedule 5.6, or for any Excluded Liability, or as
would not have a Fort Xxxxx Material Adverse Effect: (i) none of
the Transferred Sites, the Assets or the Business has released or
disposed of any Hazardous Substances, and no Person in the FJ
Group knows of any prior releases or disposal of Hazardous
Substances on the Transferred Sites or related to the Assets or
the Business, and (ii) there are no physical or environmental
conditions located at the Transferred Sites or related to the
Assets or the Business that would give rise to remedial
obligations.
5.7 Licenses and Permits. Except as set forth on Schedule
5.7, all material federal, state and local permits and licenses
that any Person within the FJ Group is required to obtain that
are related to the Business or the ownership or operation of the
Assets have been obtained and are currently in full force and
effect other than such permits and licenses the failure of which
to obtain would not have a Fort Xxxxx Material Adverse Effect.
Except as set forth in Schedule 5.7 or as would not have a Fort
Xxxxx Material Adverse Effect, no Person within the FJ Group has
violated the terms or conditions of any such license or permit,
no notice of a violation of any such license or permit has been
received by any Person within the FJ Group or recorded or
published, and no proceeding is pending, to revoke, prevent the
renewal of, or limit any such license or permit.
5.8 Financial Statements. (a) Fort Xxxxx has previously
furnished Buyer with the March Balance Sheet. Such unaudited
balance sheet has been prepared in conformity with GAAP (except
as otherwise set forth in the comments accompanying such balance
sheet) applied on a basis consistent with Fort Xxxxx' historical
accounting policies and procedures with respect to the Business
used in the preparation of Fort Xxxxx' audited financial
statements.
(b) Fort Xxxxx has previously furnished Buyer with an
unaudited profit and loss statement for the Business for the
fiscal year ended December 27, 1998, a copy of which is attached
as Schedule 5.8(b) (the "P&L"). Such unaudited P&L has been
prepared in conformity with GAAP (except as otherwise set forth
in the comments accompanying such P&L) applied on a basis
consistent with Fort Xxxxx' historical accounting policies and
procedures with respect to the Business used in the preparation
of Fort Xxxxx' audited financial statements.
5.9 Litigation. Except as set forth in Schedule 5.9, there
are no actions, suits, claims, investigations or proceedings
(legal, administrative or arbitrative) pending or, to the
Knowledge of Fort Xxxxx, threatened against any Person within the
FJ Group which relate to the Assets or the Business, whether at
law or in equity and whether civil or criminal in nature, before
any federal, state, municipal, foreign country's or other court,
arbitrator, governmental department, commission, agency or
instrumentality, nor are there any judgments, decrees or orders
of any such court, arbitrator, governmental department,
commission, agency or instrumentality outstanding against any
Person within the FJ Group which relate to the Assets or the
Business and which, in either case, have, or, if adversely
determined, could be reasonably expected to have, a Fort Xxxxx
Material Adverse Effect.
5.10 Title to Properties. (a) Except as set forth in
Schedule 5.10 and except for Permitted Exceptions, Fort Xxxxx
or another Person of the FJ Group has good and valid fee simple
title to the Real Property; and
(b) no portion of any Transferred Site is subject to any
proceeding for its sale, condemnation, expropriation or taking
(by eminent domain or otherwise) by any Authority nor, to the
Knowledge of Fort Xxxxx, has any such sale, condemnation,
expropriation or taking been proposed or threatened.
5.11 Leases. (a) Schedule 5.11 lists all leases,
agreements and commitments to lease, under which any Person
within the FJ Group is the lessee (each, a "Lessee Lease" and,
collectively, the "Lessee Leases"), and all leases, agreements
and commitments to lease, under which any Person within the FJ
Group is the lessor (each a "Lessor Lease" and, collectively,
the "Lessor Leases") that relate, in each case, exclusively to
the Business and to either real or personal property, other than
leases of personal property which may be canceled without
material penalty upon not more than 60 days' notice or which
require the payment of not more than $10,000 per month. Except
as set forth in Schedule 5.11, there is not, with respect to any
of the Lessee Leases or the Lessor Leases, any existing material
default or event of default on the part of any Person within the
FJ Group or, to the Knowledge of Fort Xxxxx, any existing
material default or event of default on the part of any other
party to the Lessee Leases or the Lessor Leases.
(b) Except as set forth in Schedule 5.11, no payments are
required by any Person within the FJ Group to maintain the Lessee
Leases relating to the Portland and Mississauga facilities (the
"Major Leases") other than as provided therein, and no person has
made any claim with respect to the Major Leases that would
materially interfere with the use of the premises by the tenant
in the conduct of its business.
5.12 Intellectual Property. Schedules 5.12(a-e) set forth a
complete and correct list of the Business Intellectual Property
that is used exclusively in, or is applicable exclusively to, the
Business. Except as set forth in Schedules 5.12(a-e), Fort Xxxxx
or another member of the FJ Group owns the Business Intellectual
Property and such Business Intellectual Property is subsisting on
the date hereof. Except as set forth on Schedules 5.12(a-e),
there are no licenses of Business Intellectual Property to third
parties. Except as set forth in Schedules 5.12(a-e), there is no
claim, suit, action or proceeding pending or, to the Knowledge of
Fort Xxxxx, threatened against any Person within the FJ Group
asserting that its use of any Business Intellectual Property
infringes upon the rights of any third parties. Except as set
forth on Schedules 5.12(a-e), to the Knowledge of Fort Xxxxx,
there are no third parties infringing upon the Business
Intellectual Property.
(a) Schedule 5.12(a) sets forth a complete and correct list
of the Filed Business Intellectual Property (including patents,
pending applications for letters patent and registered
trademarks) that is used exclusively in, or is applicable
exclusively to, the Business.
(b) Schedule 5.12(b) sets forth a complete and correct list
of the Filed Business Intellectual Property (including patents,
pending applications for letters patent and registered
trademarks) owned by third parties that is licensed to Fort Xxxxx
and used exclusively in, or is applicable exclusively to the
Business.
(c) Schedule 5.12(c) sets forth a complete and correct list
of the Filed Business Intellectual Property (including patents,
pending applications for letters patent and registered
trademarks) that is used in, or is applicable to, the Business
which is also applicable to portions of Fort Xxxxx other than the
Business.
(d) Schedule 5.12(d) sets forth a complete and correct list
of the Filed Business Intellectual Property (including patents,
pending applications for letters patent and registered
trademarks) owned by third parties that is licensed to Fort Xxxxx
and is used in, or is applicable to the Business which is also
applicable to portions of Fort Xxxxx other than the Business.
(e) Schedule 5.12(e) sets forth a complete and correct list
of the Unfiled Business Intellectual Property which has been
reduced to a record of invention that is used exclusively in, or
is applicable exclusively to, the Business.
(f) Schedule 5.12(f) sets forth a complete and correct list
of the Unfiled Business Intellectual Property which has been
reduced to a record of invention that is used in, or is appli-
cable to, the Business which is also applicable to portions of
Fort Xxxxx other than the Business.
5.13 Listed Contracts. Schedule 5.13 contains a complete
and correct list of every contract, agreement or commitment of
any Person within the FJ Group, other than Lessee Leases and
Lessor Leases (each, a "Listed Contract"):
(a) which provides for aggregate future payments by the
Business of more than $250,000, except for purchase orders or
sales orders arising in the ordinary course of business, in
which case such contract, agreement or commitment is listed
only if any party thereto is obligated to make payments during
the term thereof which will exceed $1,000,000 in the aggregate;
(b) which provides for the sale, lease to a third party
or other disposition, after the date hereof and other than in
the ordinary course of business, of any of the Assets;
(c) which is a mortgage, indenture, note, or installment
obligation, or other instrument evidencing indebtedness to be
assumed by Buyer;
(d) which is a guaranty of any obligation for borrowings or
performance, excluding endorsements or guaranties of instruments
made in the ordinary course of business;
(e) which is an agreement or other arrangement for the
purchase of any real estate, machinery, equipment, or other
capital assets in excess of $250,000; or
(f) which is an agreement imposing material non-competition
or exclusive dealing obligations on the Business.
Except as set forth in Schedule 5.13, all of the Listed Contracts
are in full force and effect and there has not occurred, with
respect to any Listed Contract, any material default or event of
default on the part of any Person within the FJ Group or, to the
Knowledge of any Person within the FJ Group, any other party
thereto.
5.14 Labor Matters. Schedule 5.14 sets forth a complete and
correct list of every collective bargaining agreement covering
Business Employees. Fort Xxxxx has provided Buyer with true,
complete and correct copies of each of such collective bargaining
agreements and all amendments and modifications (excluding
exhibits) thereto.
(a) Except as set forth on Schedule 5.14, and except for
grievances that have not ripened into arbitration or litigation,
as of the date hereof there are no controversies, disagreements
or disputes pending between Fort Xxxxx or any other member of the
FJ Group and any of their respective employees or union
representatives that would have a Fort Xxxxx Material Adverse
Effect.
(b) Except as set forth on Schedule 5.14, or as would not
have a Fort Xxxxx Material Adverse Effect:
(i) during the last three years immediately preceding
the date of this Agreement, with respect to the Business
Employees, there have been no labor strikes, slow downs,
lockouts or general employment disputes at any of the
Transferred Sites;
(ii) there have within the past three years immediately
preceding the date of this Agreement occurred (A) no events
that have legally required any member of the FJ Group to
hold a union election with respect to any Transferred Site
or (B) to the Knowledge of Fort Xxxxx, any union organizing
activities, or any demand for recognition from a labor
organization; and
(iii) there have within the past three years immediately
preceding the date of this Agreement been no unfair labor
practice charges filed with the National Labor Relations
Board against any member within the FJ Group related to the
Business or the Assets.
5.15 Employee Benefit Plans. (a) Schedule 5.15(a) lists
all of the material employee benefit and compensation plans,
programs and arrangements, including, without limitation:
(i) all retirement, savings and other pension plans other than
"multiemployer plans," (as defined in Section 4001(a)(3) of
ERISA) (ii) all health, severance, insurance, disability and
other employee welfare plans; and (iii) all employment,
incentive, vacation and other similar plans, that are maintained
by Fort Xxxxx, or any Person within the FJ Group, with respect to
Business Employees, or to which Fort Xxxxx or any Person within
the FJ Group contributes on behalf of the Business Employees
(collectively, the "Employee Plans").
(b) Except as would not have a Fort Xxxxx Material Adverse
Effect: (i) the Employee Plans that are maintained by Fort Xxxxx
or a member of the FJ Group are in compliance with applicable
laws and regulations, including, to the extent applicable, ERISA
and the Code, (ii) Fort Xxxxx and, to the extent applicable, each
other member of the FJ Group has administered the Employee Plans
in accordance with applicable laws and regulations, including, to
the extent applicable, ERISA and the Code, and (iii) each
Employee Plan that is intended to be qualified under Section
401(a) of the Code is so qualified.
(c) Fort Xxxxx has made available to Buyer copies of all
Employee Plans and, where applicable, summary plan descriptions
and annual reports filed within the last year pursuant to ERISA
or the Code with respect to the Employee Plans.
(d) Except as would not have a Fort Xxxxx Material Adverse
Effect, neither Fort Xxxxx nor any Person within the FJ Group has
engaged in any prohibited transactions, as defined in Section
4975 of the Code, with respect to any Employee Plan. Except as
would not have a Fort Xxxxx Material Adverse Effect, (i) no
Employee Plan that is a defined benefit pension plan (as defined
in 3(35) of ERISA) maintained or contributed to by Fort Xxxxx or
an ERISA Affiliate or any trust established thereunder that is
subject to Section 302 of ERISA and Section 412 of the Code has
incurred any "accumulated funding deficiency" (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or not
waived, (ii) all contributions required to be made with respect
thereto on or prior to Closing have been timely made, and (iii)
with respect to the FJ Pension Plan, the present value of accrued
benefits under such plan, based upon the actuarial assumptions
used to prepare the most recent actuarial valuation for such
plan, did not, as of its most recent valuation date, exceed the
then current value of the assets of such plan. Except as would
not have a Fort Xxxxx Material Adverse Effect, no lien exists
with respect to any Employee Plan under Section 412(n) of the
Code with respect to any assets of Fort Xxxxx or of any ERISA
Affiliate.
(e) Schedule 5.15(e) contains a true and correct list of
all employment and consulting contracts with an original term in
excess of 60 days, providing for compensation on a yearly basis
in excess of $250,000, and not otherwise listed on Schedule 5.13
or 5.15(a), to which any Person within the FJ Group is a party
in connection with the Business. Except as set forth on
Schedule 5.15(e), each of such contracts is in full force and
effect and there has not occurred, with respect to any such
contract, any material default or event of default on the part
of any Person within the FJ Group or, to the Knowledge of Fort
Xxxxx, any other party to such contracts.
(f) The Central States, Southeast and Southwest areas
Pension Fund is the only multiemployer plan (as defined in ERISA)
to which Fort Xxxxx or an ERISA Affiliate contributes with
respect to any Business Employee. The number of individuals with
respect to whom contributions are being made as of the date
hereof is approximately 15.
5.16 Conduct of Business and Management of Assets.
(a) Between March 28, 1999 and the date hereof, Persons
within the FJ Group have conducted the Business, and have
managed the Assets in the ordinary course of business
consistent with past practice.
(b) Between March 28, 1999 and the date hereof, with
respect to the Business and the Assets, no Person within the
FJ Group has:
(i) made capital expenditures, other than
substantially in accordance with the capital plan of
the Business attached hereto as Schedule 5.16(b)(i);
(ii) made a disposition of assets in excess of
$1,000,000, other than dispositions of inventory in
the ordinary course of business of the Business;
(iii) made loans or advances to, or investments in,
other parties in excess of $500,000 in the aggregate;
(iv) entered into employment, severance, compensation
or similar agreements with Business Employees, except (A)
for incentive programs that by their terms expire at or
before Closing or (B) in the ordinary course of business;
(v) made increases in compensation or benefits
payable to Business Employees other than in the ordinary
course of business;
(vi) suffered or incurred any significant damage,
destruction of property or other loss, whether or not
insured; or
(vii) incurred additional long-term debt.
(c) Between March 28, 1999 and the date hereof, with
respect to the Business and the Assets, the Persons within the
FJ Group have:
(i) maintained their books and records in accordance
with past accounting practices;
(ii) maintained the same level and types of insurance
as previously maintained; and
(iii) used commercially reasonable efforts to preserve
the Business and the Assets.
5.17 Finders. Except for Xxxxxxx, Xxxxx & Co., no broker,
finder or investment banker is entitled to any fee or commission
from Fort Xxxxx for services rendered on behalf of Fort Xxxxx in
connection with the transactions contemplated by this Agreement.
5.18 Sufficiency of Assets. The Assets to be transferred
pursuant to paragraphs (a)-(g), (i) and (l) of Section 2.1,
include all of the assets of the types covered by such paragraphs
as are reasonably necessary to conduct the Business in
substantially the same manner as it is presently being conducted.
5.19 Customers. Schedule 5.19 sets forth: (i) a list of
the twenty largest customers of the Business, determined by
dollar volume of gross sales for the most recently ended fiscal
year (the "Large Customers"), and the dollar volume of sales to
each such customer during the most recently ended fiscal year,
and (ii) a list of the brokers and distributors of the Business
that accounted for at least $1,000,000 in sales by the Business
during the most recently ended fiscal year (the "Large Brokers"),
and the dollar volume of the sales of the Business to or through
each Large Broker during the most recently ended fiscal year.
Except as described on Schedule 5.19 as of the date hereof, to
the Knowledge of Fort Xxxxx, no Large Customer or Large Broker
has terminated, or given notice that it intends to terminate,
its existing relationship with any Person within the FJ Group.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Fort Xxxxx that:
6.1 Organization; Qualification. Each Buyer is a
corporation duly organized, validly existing and in good
standing under the laws of Delaware, in the case of GPC, and
Colorado, in the case of ACX. Each Buyer has the corporate
power and authority to own all of its properties and assets
and to carry on its business as it is now being conducted and
as is contemplated to be carried on hereunder. Each Buyer is
duly qualified and in good standing to do business in each
jurisdiction in which the property owned, leased or operated
by it or the nature of the Business makes such qualification
necessary except in those jurisdictions where the failure to
be duly qualified and in good standing would not have a
material adverse effect on such Buyer.
6.2 Authority Relative to this Agreement and the Related
Agreements. Each Buyer has the corporate power and authority to
execute and deliver this Agreement and the Related Agreements to
which it is contemplated to be a party and to consummate the
transactions contemplated on its part hereby and thereby. The
execution and delivery by each Buyer of this Agreement and the
Related Agreements to which it is a party and the consummation by
each Buyer of the transactions contemplated on its part hereby
and thereby, have been duly authorized by its Board of Directors
and no other corporate proceedings on its part are necessary with
respect thereto. This Agreement constitutes, and any Related
Agreement to which a Buyer is a party, when executed and
delivered by it will constitute, the valid and binding obligation
of such Buyer, enforceable in accordance with its terms.
6.3 Non-Contravention. Except as set forth in Schedule 6.3
hereto, the execution and delivery by each Buyer of this
Agreement do not, and its execution and delivery of any Related
Agreements to which such Buyer is a party and the consummation of
the transactions contemplated hereby and thereby will not (a)
violate or result in a breach of any provision of such Buyer's
Articles of Incorporation or Bylaws, (b) result in a default (or
give rise to any right of termination, cancellation or
acceleration) under the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, agreement, lease or
other instrument or obligation to which such Buyer is a party or
by which such Buyer may be bound, or (c) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to
Buyer (other than any applicable "bulk sales" laws).
6.4 Consents and Approvals. Except for applicable filings
under the HSR Act or as set forth in Schedule 6.3 hereto, there
is no requirement applicable to either Buyer to make any filing
with, or to obtain any permit, authorization, consent or approval
from, any third party (including any Authority) as a condition to
the consummation of the transactions contemplated by this
Agreement.
6.5 Litigation. There are no actions, suits, claims,
investigations or proceedings (legal, administrative or
arbitrative) pending or threatened against either Buyer, whether
at law or in equity and whether civil or criminal in nature
before any federal, state, municipal or other court, arbitrator,
governmental department, commission, agency or instrumentality,
nor are there any judgments, decrees or orders of any such court,
arbitrator, governmental department, commission, agency or
instrumentality outstanding against either Buyer which have, or,
if adversely determined, could be reasonably expected to have, a
material adverse effect on such Buyer's ability to consummate the
transactions contemplated hereunder, or which seek specifically
to prevent, restrict or delay the consummation of the transaction
as contemplated hereby or the fulfillment of any of the
conditions of this Agreement.
6.6 Availability of Funds. Buyer has, or will have prior
to the Closing, sufficient cash, available lines of credit or
other sources of immediately available funds to enable it to
consummate the transactions contemplated by this Agreement.
Buyer has provided to Fort Xxxxx copies of binding commitment
letters with respect to the financing required for the
transaction.
6.7 Finders. Except for Xxxxxxxxx, Xxxxxx & Xxxxxxxx, no
broker, finder or investment banker is entitled to any fee or
commission from Buyer for services rendered on behalf of Buyer in
connection with the transactions contemplated by this Agreement.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Conduct of Business and Management of Assets. From and
after the date hereof and until the Closing, Fort Xxxxx shall use
reasonable commercial efforts (a) to conduct the Business in the
ordinary course of business consistent with past practice; (b) to
preserve intact the present business organization and operations
of the Business; (c) to keep available the services of its
employees and (d) to preserve its relationships with licensors,
suppliers, dealers, customers and others having business
relationships with the Business.
7.2 Forbearances by Fort Xxxxx. Except as specifically
contemplated by this Agreement, Fort Xxxxx shall not, and shall
cause each Person within the FJ Group, from the date hereof until
the Closing, without the written consent of Buyer (not to be
unreasonably withheld), not to:
(a) sell, dispose of, transfer or encumber any of the
Assets except in the ordinary course of business;
(b) make any significant acquisition of assets other than
in the ordinary course of business;
(c) amend, modify or cancel any Listed Contract, Lessee
Lease or Lessor Lease except in accordance with its terms;
(d) enter into any employment, severance, compensation or
similar agreements with any Business Employee other than in the
ordinary course of business or as may be required by law or
existing contractual arrangements;
(e) increase the compensation of, or benefits payable to,
Business Employees other than in the ordinary course of business
or as may be required by law or existing contractual
arrangements;
(f) change the assumptions underlying or the methods of
calculating any bad debt, contingency, or other reserve relating
to the Business;
(g) dispose of or permit to lapse any right to the
possession, use or enjoyment of any Business Intellectual
Property or dispose of or disclose to any person not authorized
to have such information any Non-Filed Business Intellectual
Property or other confidential Business Intellectual Property;
(h) incur any long term indebtedness that would be required
hereunder to be assumed by Buyer;
(i) enter into or renew any collective bargaining or labor
agreement (oral and legally binding or written) with respect to
the Business, except with respect to the agreement with the
Paperworkers and Allied Chemical Workers Union AFL-CIO Local No.
1010, which relates to the Paperboard Packaging Group in
Kalamazoo, Michigan and is due to expire in July 1999 which Fort
Xxxxx will negotiate in good faith to renew as heretofore agreed
by Buyer, it being understood that if Fort Xxxxx makes such an
offer of renewal and negotiates in good faith, any failure by
such union to agree to such renewal shall not result in a breach
by Fort Xxxxx of any representation, covenant or closing
condition hereunder;
(j) cancel or reduce any insurance coverage relating to the
Assets, unless such coverage is replaced; or
(k) agree, so as to legally bind Buyer whether in writing or
otherwise, to take any of the actions set forth in this Section
7.2 and not otherwise permitted by this Agreement.
7.3 Mail Received After Closing. Following the Closing,
Buyer may receive and open all mail addressed to any Person
within the FJ Group and may deal with the contents thereof in
its discretion to the extent that such mail and the contents
thereof relate to the Business. Buyer shall deliver or cause to
be delivered to Fort Xxxxx, promptly after receipt by Buyer, all
mail, including, without limitation, payments of accounts or
claims receivable, addressed to any Person within the FJ Group
which does not relate to the Business.
7.4 Retention of Books and Records. Buyer will retain and
maintain, in an organized and retrievable manner, all documents
and records pertaining to the periods before the Closing in
accordance with Fort Xxxxx' record management policies. Buyer
will retain and maintain all machine-sensible records, such as
computer tapes, disks, diskettes, etc., which are considered
books and records within the meaning of Code Section 6001, in
accordance with Internal Revenue Procedure 91-59 or such amending
or superseding guidance as issued by the Internal Revenue
Service. Buyer will make available such documents and records,
machine sensible records, computer time, and assistance from
Buyer's personnel as may be reasonably requested by Fort Xxxxx in
order to expeditiously comply with all pertinent requests from
the Internal Revenue Service and state taxing authorities which
relate to periods prior to the Closing.
7.5 Expenses. (a) Except as otherwise provided in this
Agreement, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses.
(b) All sales, use, transfer taxes and other non-income
taxes and any fees (including deed recordation fees and filing
fees, if any) incurred in connection with this Agreement and the
transactions contemplated hereby (the "Transfer Fees") will be
borne by Buyer. At Fort Xxxxx' direction, Buyer will file all
necessary tax returns and other documents required to be filed
with respect to all such Transfer Fees. Fort Xxxxx will
cooperate with Buyer to the extent reasonably necessary to enable
Buyer to make such filings and join in the execution of any tax
returns or other documents as may be required in order for Buyer
to comply with the provisions of this Section.
(c) If the transactions contemplated by this Agreement are
not consummated for any reason other than (i) a failure by Fort
Xxxxx to satisfy the conditions set forth in Article IX hereof
or (ii) by mutual written consent of the parties hereto, then
within five (5) business days of the termination of this
Agreement, Buyer shall pay to Fort Xxxxx by wire transfer of
immediately available funds to an account designated by Fort
Xxxxx an amount equal to $20,000,000, which payment, when made,
shall be Fort Xxxxx' exclusive remedy in the event of such
non-consummation.
7.6 Confidentiality. Buyer shall hold, and shall cause its
respective officers, directors, employees, representatives,
consultants and advisors (each, a "Representative"), to hold, and
Fort Xxxxx shall hold, and shall cause its respective
Representatives and the Representatives of any Person within the
FJ Group to hold, in strict confidence, unless compelled to
disclose by judicial or administrative process or by other
requirements of law, all documents and information obtained by
such parties, respectively, in connection with the transactions
contemplated hereby or otherwise obtained hereunder
("Confidential Information," which term shall, after Closing,
with respect to Fort Xxxxx' obligations hereunder, include
documents and information relating to the Assets) except to the
extent that such Confidential Information has been or has become
(a) generally available to the public other than as a result of
disclosure by any party hereunder or a Representative of a party
hereunder if such source is not bound by a confidentiality
agreement prohibiting such disclosure or is not entitled to the
protection offered hereby, (b) available to the public on a
nonconfidential basis from a source other than a Representative
of a party entitled to the protection offered hereby, or (c)
known to the party receiving such Confidential Information before
the date of disclosure of such Confidential Information to such
party. Nothing herein shall preclude a party or a Representative
of a party receiving Confidential Information from using and/or
disclosing information rightfully received from a third party to
the extent rightfully permitted by the third party. Nothing
contained in this Section 7.6 shall preclude the disclosure of
Confidential Information, on the condition that it remains
confidential, to auditors, attorneys, lenders, financial advisors
and other consultants and advisors in connection with the
performance of their duties in preparation for the consummation
of the transactions contemplated hereby nor shall it prevent
Buyer's disclosure after Closing of any document or information
constituting an Asset.
7.7 Public Announcements. The parties shall consult with
each other before issuing any press releases or otherwise making
any public statements with respect to this Agreement and the
transactions contemplated hereby and, subject to any applicable
disclosure requirements, no party shall issue any such press
release or make any such public statement without the consent of
the other party hereto, which consent shall not be unreasonably
withheld.
7.8 Efforts to Consummate. Subject to the terms and
conditions of this Agreement, each of the parties hereto shall
use its best efforts to take, or to cause to be taken, all action
and to do, or to cause to be done, all things necessary, proper
or advisable to consummate, as promptly as practicable, the
transactions contemplated hereby, including, but not limited to,
the satisfaction of the conditions listed in Articles IX or X
that are within the control of such party and the obtaining of
all consents, waivers, authorizations, orders and approvals of
third parties, whether private or governmental, required of it
by this Agreement. Each party shall cooperate fully with the
other party hereto in assisting such party to comply with this
Section 7.8.
7.9 Further Assurances. (a) Fort Xxxxx shall use its best
efforts to implement the provisions of this Agreement, and, for
such purpose, at the request of Buyer, will, at or after the
Closing, promptly execute and deliver, or cause to be so executed
and delivered, such documents to Buyer and take such further
action as Buyer may deem reasonably necessary or desirable to
facilitate or better evidence the consummation of the
transactions contemplated hereby.
(b) Buyer shall use its best efforts to implement the
provisions of this Agreement, and, for such purpose, at the
request of Fort Xxxxx, will, at or after the Closing, promptly
execute and deliver, or cause to be so executed and delivered,
such documents to Fort Xxxxx and take such further action as
Fort Xxxxx xxx xxxx reasonably necessary or desirable to
facilitate or better evidence the consummation of the
transactions contemplated hereby.
7.10 Use of Fort Xxxxx Name. As soon as practicable after
the Closing, Buyer (a) shall remove all names, logos or marks
which include the words "Fort Xxxxx" or "Xxxxx River" or the
letters "FJ" or "JR" ("Fort Xxxxx Corporate Designations") from,
or render the same illegible on, all Assets on which such Fort
Xxxxx Corporate Designations are imprinted or legible or (b)
shall discontinue use of any asset described in clause (a)
bearing Fort Xxxxx Corporate Designations. Notwithstanding the
foregoing, Buyer shall be permitted to use the Fort Xxxxx
Corporate Designations with respect to Inventory constituting
finished goods on which a Fort Xxxxx Corporate Designation is
imprinted or affixed at the Closing until such Inventory is sold.
After such Inventory has been sold, Buyer shall have no rights
to use the Fort Xxxxx Corporate Designations. Buyer undertakes
to use reasonable best efforts to sell such Inventory within
12 months after the Closing. At the end of such period referred
to in the preceding sentence (or upon completion of the removal,
rendering illegible or discontinuance of the Fort Xxxxx Corporate
Designations and variations thereof described above, whichever
occurs sooner), an executive officer of Buyer shall notify Fort
Xxxxx that (a) all such Inventory has been sold or destroyed; or
(b) such removal, rendering illegible or discontinuance has been
completed. Except as expressly permitted by this Section 7.10,
neither Buyer nor any of its respective Affiliates shall use the
Fort Xxxxx Corporate Designations or any similar xxxx or name.
7.11 No Solicitation of Employees. (a) For a period of one
year after the Closing, neither party nor any Representative of
such party shall, in any manner, directly or indirectly, (i)
solicit any employee of the other party or any Affiliate of the
other party to terminate his or her employment with such party or
its Affiliate, or (ii) otherwise recruit or encourage any such
employee to become, or hire any such employee as, an employee of,
or a consultant to, the party bound hereby.
(b) As promptly as practicable after the Closing, Buyer
shall use its best efforts to advise the appropriate Subsidiaries
and Representatives of Buyer (including the department heads and
human resources personnel) of its obligations set forth in this
Section 7.11.
(c) Notwithstanding clauses (a) and (b) of this Section
7.11, no party hereto shall be restricted from soliciting for
employment any employee of any other party hereto who has left
the employment of such other party other than as a result of
the breach of this Section 7.11 by any party hereto.
7.12 Antitrust Filings. (a) Fort Xxxxx and Buyer shall
each (i) take promptly all actions necessary to make the filings
required of it or any of its Affiliates under the applicable
Antitrust Laws, (ii) comply at the earliest practicable date with
any request for additional information or documentary material
received by it or any of its Affiliates from the Federal Trade
Commission or the Antitrust Division of the Department of Justice
pursuant to the Antitrust Improvements Act and (iii) cooperate in
connection with any filing under applicable Antitrust Laws and in
connection with resolving any investigation or other inquiry
concerning the transactions contemplated by this Agreement
commenced by any of the Federal Trade Commission, the Antitrust
Division of the Department of Justice or the Attorney General of
any state.
(b) Fort Xxxxx and Buyer shall each use all best efforts to
resolve such objections, if any, as may be asserted with respect
to the transactions contemplated by this Agreement under any
Antitrust Law. If any administrative, judicial or legislative
action or proceeding is instituted or threatened to be instituted
challenging the transactions contemplated by this Agreement as
violative of any Antitrust Law, each party hereto shall cooperate
to contest and resist any such action or proceeding, and to have
vacated, lifted, reversed or overturned any decree, judgment,
injunction or other order (whether temporary, preliminary or
permanent) that is in effect and that restricts, prevents or
prohibits consummation of the transactions contemplated by this
Agreement, including, without limitation, by pursuing all
reasonable avenues of administrative and judicial appeal.
(c) Fort Xxxxx and Buyer shall each promptly inform the
other party of any material communication made to, or received
by such party from, the Federal Trade Commission, the Department
of Justice or any other governmental or regulatory authority
regarding any of the transactions contemplated hereby.
7.13 Title Matters. (a) Fort Xxxxx and Buyer will, as soon
as practicable after the execution and delivery of this Agreement,
cause, to be issued one or more title commitments (whether one or
more, the "Title Commitment") for policies of owner's title
insurance with respect to the Real Property (the "Real Property
Title Commitment") and policies of leasehold title insurance with
respect to the Major Leases (the "Major Leases Title Commitment")
and current surveys and will cause to be made ALTA surveys. Fort
Xxxxx and Buyer shall each bear 50% of the cost of the Title
Commitment and ALTA surveys. Buyer shall procure and pay
premiums for such title insurance as it requires. At Buyer's
request, the Closing may be postponed until the date that is 15
days after the later of the date hereof or the date of the
delivery to Buyer of the Real Property Title Commitment together
with copies of all recorded documents listed as title exceptions
in the Real Property Title Commitment (collectively, the "Real
Property Title Package"). Within 5 days of the later of the date
hereof or the date of the delivery to Buyer of the Real Property
Title Package, Buyer shall notify Fort Xxxxx of any title matter
reflected in the Real Property Title Commitment that constitutes
a breach of the representation set forth in Section 5.10 (any
such title matter being a "Title Defect").
(b) At Buyer's request, Closing may be postponed until the
date that is 15 days after Fort Xxxxx' delivery to Buyer of the
Major Leases Title Commitment, together with copies of all
recorded documents listed as title exceptions in the Major Leases
Title Commitment (collectively, the "Major Leases Title Package").
Within 5 days of Fort Xxxxx' delivery to Buyer of the Major
Leases Title Package, Buyer shall notify Fort Xxxxx of any title
matter reflected in the Major Leases Title Commitment that
constitutes a breach of the representation set forth in Section
5.10 (any such title matter being a "Title Defect").
(c) Within 5 days of receiving notice from Buyer of any
Title Defect, Fort Xxxxx shall notify Buyer, with respect to
each such Title Defect, whether Fort Xxxxx has elected to
(i) cure such matter or otherwise cause the same to be deleted
from, or insured over in, the Title Commitment, (ii) pay to Buyer
the amount by which the value of the Real Property is diminished
as a result of the existence of such Title Defect at Closing (or
as soon thereafter as the amount can be established, the parties
hereby agreeing to enter into an appropriate agreement at
Closing relating to the establishment of such amount by reference
to the conclusion of qualified real estate appraisers if Fort
Xxxxx elects to make such payment in respect of any Title Defect
and the parties cannot agree by Closing as to the amount of such
diminution in value); or (iii) take no action with respect to
such Title Defect; provided Fort Xxxxx shall be required to
remove any lien which is not a Permitted Exception securing a
monetary obligation which can be removed by the payment of money
the amount of which is ascertainable from the face of the
document or which has been determined in writing from the holder
of such obligation. If Buyer does not deliver written notice of
its objections to any Title Defect within the time specified
above for such notice, Buyer shall be deemed to have waived all
rights it may have against Fort Xxxxx (including the right to
refuse to consummate the transactions called for in this
Agreement or the right otherwise to claim breach of the
representation set forth in Section 5.10) with respect to such
Title Defect. If Fort Xxxxx fails to respond, within the time
set forth above, to any objection to Title Defects timely
delivered by Buyer as set forth above, Fort Xxxxx shall be deemed
to have elected to respond as set forth in subsection (ii) above
with respect to such Title Defect. If Fort Xxxxx elects to
respond as set forth in subsection (iii) above with respect to
one or more Title Defects, Buyer may terminate this Agreement by
delivering notice of its election to do so within two days of
Fort Xxxxx' delivery of its notice to Buyer that Fort Xxxxx has
elected to take no action with respect to the Title Defect(s) at
issue. If Buyer does not deliver written notice of its election
to terminate this Agreement within the time specified above for
such notice, Buyer shall be deemed to have waived all rights it
may have against Fort Xxxxx with respect to Title Defects
disclosed in the Title Commitment (including the right to refuse
to consummate the transactions called for in this Agreement or
the right otherwise to claim breach of the representations set
forth in Section 5.10 or breach of this Section).
7.14 Tax Matters. (a) Buyer will be responsible for the
preparation and filing of all federal, state and local franchise,
property, payroll, and other non-income tax returns, arising with
respect to the operation of the Business and the ownership of the
Assets for all periods after the date of Closing. Buyer will
make all payments required with respect to any such tax returns.
(b) Fort Xxxxx and Buyer shall allocate the Purchase Price
(including, for purposes of this Section, any other consideration
paid by Buyer and any Assumed Liabilities) among the Assets in
the manner set forth on Schedule 7.14 (the "Allocation
Schedule"). Fort Xxxxx and Buyer each agrees to file Internal
Revenue Service Form 8594 and any required attachments thereto,
together with all federal, state, local, and foreign tax returns,
in accordance with the Allocation Schedule. Fort Xxxxx and Buyer
each agrees to provide the other promptly with any other
information required to update the Allocation Schedule at or
after the Closing as described in the Allocation Schedule.
7.15 Access to Assets and Business Employees. From the date
hereof until Closing or the earlier termination or expiration of
this Agreement, Fort Xxxxx shall provide Buyer, Buyer's
accountants, representatives, and prospective lenders, with
reasonable opportunities to further investigate the Assets and
interview Business Employees during normal business hours upon
reasonable prior notice from Buyer, for reasonable purposes,
including the preparation of audited financial statements of the
Business and lenders' due diligence, provided that no such
investigations or interviews shall unreasonably interfere with
the operation of the Business or Fort Xxxxx' other business.
7.16 Substitute Letters of Credit; Guarantees. Effective as
of the Closing, Buyer shall procure substitute letters of credit,
and shall cause itself to be substituted in all respects for any
member of the FJ Group with respect to, the letter of credit and
guarantees listed in Schedule 7.16.
7.17 Consents and Approvals. Except for any consents,
waivers, authorizations or approvals the failure of which to
obtain would not have a Fort Xxxxx Material Adverse Effect, Fort
Xxxxx shall use its best efforts to obtain all necessary consents,
waivers, authorizations and approvals of all Authorities and of
all other Persons reasonably required in connection with the
execution, delivery and performance by it of this Agreement,
including but not limited to, consents to assign (a) the Listed
Contracts, (b) the Lessee Leases and (c) all other contracts and
commitments to the extent the same relate exclusively to the
Business. In the event that any Listed Contract or Lessee Lease
is not transferable to Buyer, Fort Xxxxx shall use commercially
reasonable efforts to maintain such Listed Contract or Lessee
Lease for the benefit of Buyer, provided that Buyer shall be
responsible for performing Fort Xxxxx' obligations under any such
Listed Contract or Lessee Lease. Fort Xxxxx shall use reasonable
efforts to assign to Buyer the Microsoft licenses exclusively
related to the Business, it being understood that Fort Xxxxx
shall not be required to incur any cost or expense in connection
therewith.
7.18 Negotiations. For a period of 75 days from and after
the date hereof, no Person within the FJ Group, nor their
officers or directors nor anyone acting on behalf of any Person
within the FJ Group or such persons shall, directly or
indirectly, encourage, solicit, engage in discussions or
negotiations with, or provide any information to, any person,
firm, or other entity or group (other than Buyer or its
representatives) concerning any merger, sale of substantial
assets, purchase or sale of shares of capital stock or similar
transaction involving the Business or any other transaction
inconsistent with the transactions contemplated hereby.
7.19 Audited Financial Statements. Fort Xxxxx will use
reasonable efforts to prepare and deliver to Buyer audited pro
forma balance sheets and pro forma statements of income as of
December 27, 1998 and December 28, 1997, and for each of the
three fiscal years in the period ended December 27, 1998, which
statements shall reflect the Business as it is proposed to be
transferred hereunder.
7.20 Year 2000 Compliance Program. Fort Xxxxx shall continue
through the Closing Date the implementation, in accordance with
the capital plan, of its existing program with respect to Year
2000 compliance in connection with the Business.
ARTICLE VIII
BUSINESS EMPLOYEE AND EMPLOYEE BENEFIT MATTERS
8.1 Business Employees. For purposes of this Article VIII,
"Business Employees" are hereby defined as follows:
(a) all persons actively employed by Fort Xxxxx or any
member of the FJ Group in the Business immediately before Closing;
(b) all employees of Fort Xxxxx or any member of the FJ
Group (i) who are (A) absent from work with the Business on account
of sickness (other than employees who are, as of the Closing Date,
on long-term disability or have been approved by the carrier for
long-term disability) or leave of absence at Closing and (B)
released to return to work (and actually return to work) their
regularly scheduled number of hours within 12 weeks from the day
such employee left active employment or commenced working a
reduced schedule or (ii) for whom an obligation to recall, rehire
or otherwise return to employment exists under an Assumed
Collective Bargaining Agreement; and
(c) all employees of Fort Xxxxx or any member of the FJ
Group who would not otherwise be employed in the Business
immediately before the Closing but who, with the mutual consent
of Fort Xxxxx and Buyer, become employees of the Business at or
before the Closing.
8.2 Employment. (a) Effective as of the Closing Date,
Buyer shall make an offer of initial employment to each Business
Employee at the same base salary and on substantially the same
other terms and conditions as in effect immediately prior to
Closing. For purposes of the preceding sentence, in order for
an offer of employment to a given Business Employee to be made
on "substantially the same other terms and conditions," it shall
also be required to be made for employment at the same location
as that where the particular Business Employee is employed as of
Closing, except that the Business Employees employed at
Deerfield, Illinois and Neenah, Wisconsin may, instead, be
offered employment at Golden, Colorado, or another headquarters,
research and development or divisional office facility of Buyer
or the Business. Buyer's employment of those Business Employees
who accept offers of employment shall be deemed to commence on
the Closing Date. Those Business Employees who accept such
offers of employment shall be referred to herein as the
"Transferred Employees."
(b) After the Closing, Fort Xxxxx shall not be responsible
for wages, salaries and other employee benefits for Transferred
Employees for service (including deemed service) of such
Transferred Employees with the Buyer after the Closing; it being
understood that Buyer shall be responsible for paying or
providing (or reimbursing Fort Xxxxx for the cost of paying or
providing) any wages, salaries and other employee benefits to all
Transferred Employees, including those employees described in
Section 8.1(b)(i) above, for all periods following the Closing
Date. For purposes of this Article VIII, all persons described
above who are compensated on an hourly basis or who have been or
are subject to a collective bargaining agreement shall be
referred to as "Hourly Business Employees," and all persons
described above who are compensated on a salaried basis (or a non-
union hourly basis) shall be referred to as "Salaried Business
Employees." Prior to execution of this Agreement, Fort Xxxxx has
provided Buyer with a preliminary list of Business Employees, and
Fort Xxxxx and Buyer will agree on a final list of Business
Employees prior to the Closing, based upon new employees hired by
the Business and departures of employees of the Business prior to
Closing, and upon mutually agreed additions and deletions to such
list. Fort Xxxxx shall cooperate with Buyer and Fort Xxxxx shall
provide information reasonably requested by Buyer in order to
enable Buyer to hire the Transferred Employees and enroll the
Transferred Employees in Buyer's benefit plans.
8.3 Employee Benefits. (a) Subject to the other
provisions of this Article VIII, Buyer agrees that for a period
of at least one year after the Closing Date (the "Window Period")
it will (i) provide all Transferred Employees with severance
benefits at least as favorable as those provided to such
Transferred Employees immediately prior to the Closing Date;
(ii) provide all Transferred Employees who were Salaried Business
Employees ("Transferred Salaried Employees") with medical and
other welfare benefits no less favorable than those provided to
such Transferred Salaried Employees immediately prior to the
Closing Date; (iii) provide Transferred Salaried Employees with
a wage and salary program no less favorable than that in place
at the Business immediately prior to the Closing Date;
(iv) provide all Transferred Salaried Employees with other
compensation and benefits no less favorable in the aggregate than
the compensation (including incentive compensation) and benefits
provided to such Transferred Salaried Employees immediately prior
to the Closing Date; and (v) provide Transferred Employees who
were Hourly Business Employees ("Transferred Hourly Employees")
covered under the Assumed Collective Bargaining Agreements (as
hereinafter defined), such compensation and benefits as are from
time to time required by such collective bargaining agreements.
In addition, Buyer agrees to give all Transferred Employees
service credit for all periods of employment with Fort Xxxxx or
any member of the FJ Group prior to the Closing Date for all
purposes under any plan adopted or maintained by Buyer or any of
its Subsidiaries in which Transferred Employees participate.
Buyer agrees to waive any limitations regarding pre-existing
conditions for medical coverage under any medical plan in which
Transferred Employees participate, and to give full credit during
calendar year 1999 for any copayments made and deductibles fully
or partially satisfied prior to the Closing with respect to
Employee Plans, under any welfare or other employee benefit plans
maintained by Buyer or any of its Subsidiaries in which
Transferred Employees participate after the Closing. Subject to
paragraph (d) hereof, from and after the Closing Date, Buyer
shall be solely responsible for all termination and severance
benefits, costs, charges and liabilities of any nature incurred
with respect to (A) a Transferred Employee on or after the
Closing, including, without limitation, any claims arising out of
or relating to any plant closing, mass layoff, termination or
similar event under applicable law occurring on or after the
Closing and (B) any Business Employee who does not become a
Transferred Employee and with respect to whom Buyer's failure to
comply with the employment offer requirements of Section 8.2(a)
results in such Business Employee being able to claim a
termination or severance benefit.
(b) Buyer shall be responsible for the administration of
and shall assume any and all obligations, if any, arising under
the continuation coverage requirements of Section 4980B of the
Code and Part 6 of Title I of ERISA with respect to the Trans-
ferred Employees and their beneficiaries who are eligible to
exercise their rights to such coverage as of or following the
Closing Date.
(c) Except as provided in Section 8.5 hereof, as of the
Closing Date, the Business Employees shall cease active parti-
cipation in each Employee Plan and no additional benefits shall
be accrued thereunder for such employees. Except as provided
hereunder, Fort Xxxxx shall retain all assets and liabilities
under such Employee Plans for Business Employees.
(d) Buyer shall not be responsible for assuming any
employment agreements with the Transferred Employees, and Fort
Xxxxx shall retain liability for any severance benefits due
under such employment agreements.
(e) As of the Closing Date, Buyer shall designate or
establish for the benefit of Transferred Employees a
medical and dependent care expense reimbursement program
(the "Buyer FSA Plan") substantially similar to the Fort
Xxxxx Flexible Spending Accounts program (the "FJ FSA
Plan"). Fort Xxxxx shall transfer the assets (up to the
maximum aggregate limit for claims under the Buyer FSA
Plan) withheld from the Transferred Employees' paychecks
during calendar year 1999 through the Closing Date less
any reimbursements properly made to such Transferred
Employees for calendar year 1999 expenses under the FJ
FSA Plan. With respect to the remainder of the calendar
year following the Closing, Buyer shall honor and execute
under the Buyer FSA Plan the payroll deduction elections
effective for each Transferred Employee under the FJ FSA
Plan as of the Closing Date and shall pay claims made by
such Transferred Employee under the terms of the Buyer
FSA Plan, without regard to when the claims arose.
8.4 Assumption of Liabilities. Except as specifically
provided otherwise in this Article VIII, at Closing, Buyer
shall assume all employee-related liabilities and obligations
that are payable at or after the Closing Date with respect to
Business Employees and their beneficiaries and dependents,
without regard to when such liabilities and obligations
arose; provided, however, that Buyer, except as specifically
provided otherwise in this Article VIII (including, without
limitation, the last sentence of Section 8.3(a)), shall not
assume any liabilities or obligations that are payable prior
to, at or after the Closing with respect to any employee
benefit plans that are maintained by Fort Xxxxx or its
Affiliates, or with respect to Business Employees who do not
become Transferred Employees.
8.5 Collective Bargaining Agreements. (a) At Closing,
Buyer shall adopt and assume the collective bargaining agreements
listed on Schedule 8.5(a) (the "Assumed Collective Bargaining
Agreements"). At and after the Closing, any obligations that may
be payable under the Assumed Collective Bargaining Agreements,
with respect to Hourly Business Employees, regardless of whether
such obligations relate to services performed before or after the
Closing, shall be the sole responsibility of Buyer.
(b) With respect to each multiemployer plan that is listed
on Schedule 8.5(b) and that covers Hourly Business Employees,
Fort Xxxxx and Buyer agree as follows, in accordance with the
provisions of Section 4204 of ERISA:
(i) Buyer hereby assumes, effective at Closing, the
obligation of any Person within the FJ Group to contribute
to each such multiemployer plan for such Hourly Business
Employees.
(ii) Buyer shall provide to each such multiemployer
plan the bond or escrow amount described in Section
4204(a)(1)(B) of ERISA, unless the bond or escrow amount
is waived by the PBGC.
(iii) The parties agree that, unless the PBGC waives
the requirements of Section 4204(a)(1)(C) of ERISA, if
Buyer withdraws from any such multiemployer plan in a
withdrawal described in Section 4204(a)(1)(C) of ERISA
with respect to the Business during the first five plan
years beginning after Closing and does not pay its
liability to the multiemployer plan on account of such
withdrawal, Fort Xxxxx shall be secondarily liable to the
multiemployer plan for any withdrawal liability that any
Person within the FJ Group would have had to the plan with
respect to the Hourly Business Employees in the absence of
Section 4204(a) of ERISA, to the extent required by
Section 4204 of ERISA. Notwithstanding the provisions of
the preceding sentence and Section 4204 of ERISA, it is
hereby expressly agreed that if any Person within the FJ
Group incurs any secondary withdrawal liability under the
preceding sentence, Buyer shall indemnify Fort Xxxxx and
hold it harmless from any and all Losses incurred by any
such Person within the FJ Group by reason of such
secondary liability.
As soon as is practicable after Closing, Fort Xxxxx and Buyer
shall request from the PBGC an exemption from the requirements of
Section 4204(a)(1)(B) and 4204(a)(1)(C) of ERISA.
8.6 Pension Plan for Salaried Business Employees. Buyer
shall not assume any of Fort Xxxxx' rights and obligations with
respect to the Fort Xxxxx Corporation Pension Plan for Salaried
and Other Non-Bargaining Unit Employees. As of the Closing, the
Business Employees shall cease active participation in such plan
and no additional benefits shall accrue thereunder. Fort Xxxxx
shall retain all assets and liabilities under such plan.
8.7 401(k) Plan. (a) Effective as of the Closing, Buyer
shall establish a defined contribution plan and trust (or amend
an existing defined contribution plan) for Transferred Employees
(which for a period of at least one year following Closing shall
be generally comparable to the Fort Xxxxx 401(k) Plan (the "FJ
401(k) Plan")) and which shall be qualified under Sections 401
and 501 of the Code and which shall provide for salary reduction
contributions pursuant to Section 401(k) of the Code ("Buyer's
DC Plan"). Buyer's DC Plan shall provide that each Transferred
Employee shall be given credit under Buyer's DC Plan, for
purposes of determining eligibility to participate, eligibility
for benefits, benefit calculations, benefit forms and vesting,
for the Transferred Employee's service with Fort Xxxxx, or any
member of the FJ Group and each of their predecessor companies,
to the extent that the FJ 401(k) Plan gave credit for such
service. If the Buyer amends one or more existing defined
contribution plans, the Buyer shall ensure that all "section
411(d)(6) protected benefits" (as defined in Treasury Regulation
1.411(d)-4) provided by the FJ 401(k) Plan are preserved in the
amended existing, defined contribution plan. From and after the
Closing, Transferred Employees shall not accrue additional
benefits under defined contribution plans maintained by Fort
Xxxxx or its Affiliates.
(b) Assets of the FJ 401(k) Plan equal to the account
balances of the Transferred Employees under the FJ 401(k) Plan
shall be transferred to Buyer's DC Plan as soon as practicable
after the Closing. If practicable, the transfer shall be made
as of the last day of the first calendar quarter ending after the
Closing. The transfer shall be made in kind, and Buyer shall
cause the Buyer's DC Plan to continue to maintain an investment
fund for Fort Xxxxx common stock for such Transferred Employees;
provided, that Buyer's DC Plan may provide that (i) no new
contributions to Buyer's DC Plan shall be invested in such
investment fund and (ii) any portion of the account balance of a
Transferred Employee that is transferred out of such investment
fund may not be reinvested in the investment fund. Any
outstanding plan loans to Transferred Employees shall be
transferred with the underlying accounts. The account balances
of the Transferred Employees shall be valued as of the date on
which the transfer is made. The account balances of Transferred
Employees in the FJ 401(k)Plan shall share in the earnings,
appreciation and depreciation of the investment funds in which
the accounts are invested for the period between the Closing and
the date on which the transfer is made.
(c) Any benefits that are payable to Transferred Employees
from the FJ 401(k) Plan after the Closing and before assets are
transferred shall be paid from the FJ 401(k) Plan in the ordinary
course. The amount to be transferred to Buyer's DC Plan shall be
reduced by the amount of such payments.
(d) The account balances to be credited under Buyer's DC
Plan for Transferred Employees shall not be less than the account
balances of the Transferred Employees under the FJ 401(k) Plan as
of the date on which the transfer is made. Effective on the date
of the transfer of FJ 401(k) Plan assets, (i) Buyer's DC Plan
shall assume all liabilities in connection with the account
balances of Transferred Employees under the FJ 401(k) Plan, and
(ii) Fort Xxxxx, its Affiliates and the FJ 401(k) Plan shall have
no further liability with respect to the account balances of
Transferred Employees. Fort Xxxxx and its Affiliates shall have
no liability with respect to Buyer's DC Plan.
(e) Buyer shall request that the Internal Revenue Service
issue a favorable determination letter with respect to the
qualification under Sections 401 and 501 of the Code of Buyer's
DC Plan and the related trust. Buyer shall make such changes to
Buyer's DC Plan as may be required by the Internal Revenue
Service in order for the Internal Revenue Service to issue a
favorable determination letter. Buyer shall provide Fort Xxxxx
with a copy of the determination letter received from the
Internal Revenue Service with respect to Buyer's DC Plan as soon
as the determination letter is received.
(f) The transfer under this Section 8.7 shall not take
place until Buyer has delivered to Fort Xxxxx either (i) a copy
of a determination letter from the Internal Revenue Service to
the effect that the Buyer's DC Plan is qualified under Section
401(a) of the Code, together with documentation reasonably
satisfactory to Fort Xxxxx of the due adoption of any amendments
to the Buyer's DC Plan required by the Internal Revenue Service
as a condition to such qualification and certification from the
Buyer that no events have occurred that would adversely affect
the continued validity of such determination letter (apart from
the enactment of any Federal law for which the remedial
amendment period under Section 401(b) of the Code has not yet
expired), or (ii) an opinion of outside counsel reasonably
satisfactory in form and substance to Fort Xxxxx that the
Buyer's DC Plan is qualified under Section 401(a) of the Code
as of the date of transfer, and Fort Xxxxx has delivered to the
Buyer either (A) a copy of a determination letter from the
Internal Revenue Service to the effect that the FJ 401(k) Plan
is qualified under Section 401(a) of the Code, together with
documentation reasonably satisfactory to the Buyer of the due
adoption of any amendments to the FJ 401(k) Plan required by
the Internal Revenue Service as a condition to such
qualification and a certification from Fort Xxxxx that no
events have occurred that would adversely affect the continued
validity of such letters (apart from the enactment of any
Federal law for which the remedial amendment period under
Section 401(b) of the Code has not yet expired), or (B) an
opinion of outside counsel reasonably satisfactory in form and
substance to the Buyer that the FJ 401(k) Plan is qualified
under Section 401(a) of the Code as of the date of transfer.
8.8 Pension Plan For Hourly Business Employees.
(a) Effective as of the Closing Date, Buyer shall
establish a new defined benefit pension plan, and/or amend an
existing defined benefit pension plan ("Buyer's Pension Plan"),
to provide the benefits described in this Section 8.8. From
and after the Closing Date, Buyer's Pension Plan shall cover
at least those Transferred Employees who, as of the Closing
Date, are active participants in the JR II Retirement Plan
(the "FJ Pension Plan"). Such Transferred Employees are
referred to hereinafter as the "Transferred Pension
Participants."
(b) Effective as of the date of the asset transfer
contemplated by this Section 8.8, Buyer shall assume under
Buyer's Pension Plan all liability and responsibility for
the provision of the accrued pension benefits for and on
behalf of the Transferred Pension Participants and for
the eligible surviving spouses and/or other contingent
beneficiaries of such Transferred Pension Participants,
which liability and responsibility had been the obligation
of Fort Xxxxx xxxxx to the date of the asset transfer
contemplated in this Section 8.8. Fort Xxxxx shall retain
all liability and responsibility, under the applicable
pension plans, for participants in the FJ Pension Plan who
are not Transferred Employees, and for the eligible
surviving spouses and/or other contingent beneficiaries of
such participants.
(c) Buyer's Pension Plan with respect to all Transferred
Pension Participants shall be governed by the applicable
collective bargaining agreements. For each Transferred Pension
Participant, Buyer's Pension Plan shall recognize periods of
employment by, and compensation from, Fort Xxxxx and its
Affiliates and any predecessors of such entities, as employment
by, and compensation from, Buyer for all purposes under Buyer's
Pension Plan, to the extent recognized under the FJ Pension
Plan.
(d) In conjunction with the establishment and/or amendment
of Buyer's Pension Plan, Buyer as of the Closing Date shall, to
the extent necessary, establish, or amend, a funding arrangement
for Buyer's Pension Plan through a qualified trust under Section
501 of the Code. Such funding arrangement shall be referred to
hereinafter as "Buyer's Pension Trust." The Fort Xxxxx qualified
pension trust shall be referred to hereinafter as "FJ's Pension
Trust."
(e) As soon as practicable after the later of (i) the
Closing Date, and (ii) the final determination of the Transfer
Amount (as hereinafter defined) pursuant to Sections 8.8(f) and
(g), Fort Xxxxx shall direct the trustee of FJ's Pension Trust to
transfer to Buyer's Pension Trust, in cash, the amount of assets
(the "Transfer Amount") of FJ's Pension Trust described below.
Subject to subparagraph (f) below, the Transfer Amount shall be
determined by an actuary selected by Fort Xxxxx, and shall be the
amount required to be transferred with respect to the Transferred
Pension Participants to satisfy the requirements of Section
414(l) of the Code, determined as of the Closing Date (based upon
the actuarial assumptions deemed appropriate by the PBGC as of
the Closing Date under Section 414(l) of the Code for purposes of
determining the discount rate and retirement rates, and all other
actuarial assumptions used to determine accrued benefit
obligations for the last actuarial report performed for the FJ
Pension Plan prior to Closing). The transfer of the Transfer
Amount shall not take place until after the latest of (A) the
expiration of the 30-day period following the filing of any
required notices with the Internal Revenue Service pursuant to
Section 6058(b) of the Code, and (B) the date the Buyer has
delivered to Fort Xxxxx either (1) a copy of a determination
letter from the Internal Revenue Service to the effect that the
Buyer's Pension Plan is qualified under Section 401(a) of the
Code, together with documentation reasonably satisfactory to Fort
Xxxxx of the due adoption of any amendments to the Buyer's
Pension Plan required by the Internal Revenue Service as a
condition to such qualification and certification from the Buyer
that no events have occurred that would adversely affect the
continued validity of such determination letter (apart from the
enactment of any Federal law for which the remedial amendment
period under Section 401(b) of the Code has not yet expired), or
(2) an opinion of outside counsel reasonably satisfactory in form
and substance to Fort Xxxxx that the Buyer's Pension Plan is
qualified under Section 401(a) of the Code as of the date of
transfer, and the date Fort Xxxxx has delivered to the Buyer
either (1) a copy of a determination letter from the Internal
Revenue Service to the effect that the FJ Pension Plan is
qualified under Section 401(a) of the Code, together with
documentation reasonably satisfactory to the Buyer of the due
adoption of any amendments to the FJ Pension Plan required by the
Internal Revenue Service as a condition to such qualification and
a certification from Fort Xxxxx that no events have occurred that
would adversely affect the continued validity of such letters
(apart from the enactment of any Federal law for which the
remedial amendment period under Section 401(b) of the Code has
not yet expired), or (2) an opinion of outside counsel reasonably
satisfactory in form and substance to the Buyer that the FJ
Pension Plan is qualified under Section 401(a) of the Code as of
the date of transfer.
(f) Fort Xxxxx shall, within the period of ninety (90)
consecutive calendar days next following the date on which its
actuary has received all information from Buyer which is required
to determine, in accordance with the preceding Section 8.8(e),
the Transfer Amount, notify Buyer of the Transfer Amount, and
shall provide Buyer with a copy of the actuarial computations
relating to the determination of the Transfer Amount and all
information and data on which such calculations were based.
Buyer shall notify Fort Xxxxx in writing of Buyer's agreement
with such determination, or shall submit to Fort Xxxxx a written
list of points of disagreement, within a period of thirty (30)
consecutive calendar days next following the date of Buyer's
receipt of Fort Xxxxx' notification. If Buyer submits to Fort
Xxxxx any such written list of points of disagreement, and if
such disagreement cannot be resolved by Buyer's and Fort Xxxxx'
actuaries, or otherwise to the satisfaction of Buyer and Fort
Xxxxx, within the period of thirty (30) consecutive calendar days
next following the date of receipt of such list by Fort Xxxxx,
then the disagreement shall be resolved by a third independent
actuary to be mutually selected by Buyer and Fort Xxxxx no later
than thirty (30) consecutive calendar days after the end of the
first thirty (30) day period. The opinion of such third actuary
shall be returned to Buyer and Fort Xxxxx in writing as soon as
possible thereafter, and shall be accepted by both Buyer and Fort
Xxxxx as conclusive in the matter. The fees and charges of such
third actuary shall be shared equally by Buyer and Fort Xxxxx.
(g) The transfer of the Transfer Amount, as finally
determined ursuant to Sections 8.8(e) and (f), from FJ's Pension
Trust to Buyer's Pension Trust, shall be completed as soon as
practicable after such final determination. The Transfer Amount:
(i) shall be increased or decreased by the rate of
return on the assets in the FJ Pension Trust (the "Rate of
Return") commencing on the date next following the Closing
Date and ending on the date immediately prior to the date
on which the Transfer Amount is so transferred (the "Asset
Transfer Date"), as applied solely to the Transfer Amount;
and
(ii) shall be decreased by the sum of the amount of any
benefit payments which are made to or on behalf of the
Transferred Pension Participants from FJ's Pension Trust
prior to the Asset Transfer Date (with such amount increased
or decreased by the Rate of Return as applied solely to the
amount of such benefit payments from the Closing Date
through the Asset Transfer Date).
(h) On and after the Closing Date, but prior to the Asset
Transfer Date, Fort Xxxxx shall direct the trustee of FJ's
Pension Trust to pay benefits therefrom to or on behalf of any
Transferred Pension Participant who is, or becomes entitled to
benefits under the FJ Pension Plan on or after the Closing Date,
but prior to the Asset Transfer Date, with such payments to be
made in accordance with written instructions furnished by Buyer
to Fort Xxxxx from time to time; subject, however, to Fort Xxxxx'
audit and approval of the proper computation of such benefits.
8.9 Worker's Compensation. At Closing, Buyer shall assume
liability for all claims under worker's compensation laws that
are payable at or after the Closing with respect to Transferred
Employees, without regard to when the liabilities arose.
8.10 Vacation Pay. Buyer shall assume liability for all
unpaid vacation pay earned, banked or accrued by Transferred
Employees prior to the Closing. After the Closing, Fort Xxxxx
shall have no liability for vacation pay for Transferred
Employees.
8.11 Welfare Plans. (a) Fort Xxxxx shall retain all assets
relating to the Employee Plans that are welfare benefit plans and
shall be liable for and shall hold Buyer harmless from and
against all claims for the benefits described below by
participants of such plans which are incurred prior to the
Closing Date. For purposes of this Agreement, the following
claims shall be deemed to be incurred as follows: (i) life,
accidental death and dismemberment and business travel accident
insurance benefits, upon the death or accident giving rise to
such benefits; (ii) health, dental and/or prescription drug
benefits, on the date such services, materials or supplies were
provided; and (iii) long-term disability benefits, on the
eligibility date determined by the long-term disability carrier
for the individual.
(b) Fort Xxxxx shall be liable for and shall hold Buyer
harmless from and against any retiree welfare benefits to be
provided to retirees of the Business who have actually retired
prior to the Closing Date or to the Business Employees who have
attained age 55 with 15 years of service as of the Closing Date
and are eligible for retiree welfare benefits under an Employee
Plan as of the Closing Date. Buyer shall be liable for and
shall hold Fort Xxxxx harmless from and against any retiree
welfare benefits for Transferred Hourly Employees who are or
may become eligible for retiree welfare benefits pursuant to an
Assumed Collective Bargaining Agreement.
8.12 Plant Closing Laws. Buyer shall be responsible for
providing any notice required, pursuant to the United States
Federal Worker Adjustment and Retraining Act of 1988, any
successor United States federal law, and any applicable plant
closing notification law with respect to a layoff or plant
closing relating to the Business that occurs as a result of or
after the Closing. Fort Xxxxx shall be responsible for
providing any such notice with respect to a layoff or plant
closing occurring prior to the Closing.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF BUYER
The obligations of Buyer to consummate the transactions
contemplated by this Agreement shall be subject, to the extent
not waived, to the satisfaction of each of the following
conditions before or at the Closing:
9.1 Representations and Warranties. Except for changes
contemplated by this Agreement, the representations and
warranties of Fort Xxxxx contained in this Agreement that are
qualified by materiality shall be true, and all other such
representations and warranties shall be true and correct in all
material respects, in each case at and as of the date of this
Agreement and as of the Closing, provided that representations
and warranties made as of a specified date need be so true and
correct (as described above) only as of the specified date.
9.2 Performance of this Agreement. Fort Xxxxx shall have
performed all obligations and complied with all conditions
required by this Agreement to be performed or complied with by
it before or at the Closing, to the extent not waived.
9.3 Proceedings. All corporate and other proceedings to
be taken by Fort Xxxxx in connection with the transactions
contemplated hereby shall have been completed, all such
proceedings and all documents incident thereto shall be
reasonably satisfactory in substance and form to Buyer and
Buyer shall have received all such counterpart originals or
certified or other copies of such documents as Buyer may
reasonably request.
9.4 Consents and Approvals. All consents, authorizations,
orders or approvals of any Authority or Person which Fort Xxxxx
is required to obtain in order to consummate the transactions
contemplated by this Agreement shall have been obtained by Fort
Xxxxx and all waiting periods specified by law with respect
thereto shall have passed, other than any such consents,
authorizations, orders or approvals for which the failure to so
obtain would not have a Fort Xxxxx Material Adverse Effect.
9.5 Injunction, Litigation, etc. No order of any court or
administrative agency shall be in effect which restrains or
prohibits the consummation of the transactions contemplated
hereby, nor shall there be pending any action or proceeding by
or before any Authority which is likely to prohibit, or
successfully challenge the validity of any of the transactions
contemplated by this Agreement.
9.6 Legislation. No statute, rule or regulation shall have
been enacted which prohibits or restricts the consummation of the
transactions contemplated hereby.
9.7 Related Agreements. Each Person of the FJ Group shall
have executed and delivered each of the Related Agreements to
which it is a party.
9.8 Material Adverse Change. There shall not have occurred
since March 28, 1999, any event which has resulted in a Fort
Xxxxx Material Adverse Effect.
9.9 Opinion of Counsel for Fort Xxxxx. Buyer shall have
received an opinion from Wachtell, Lipton, Xxxxx & Xxxx as to the
matters specified in Schedule 9.9, in form and substance
reasonably satisfactory to Buyer and its counsel.
9.10 Officer's Certificate. Buyer shall have received a
certificate, dated the Closing Date, signed by the Chief
Financial Officer of Fort Xxxxx, certifying that the conditions
specified in this Article IX have been fulfilled.
9.11 Audited Financial Statements. Buyer shall have
received an audited pro forma balance sheet and pro forma
statement of income for the Business as of December 27, 1998.
ARTICLE X
CONDITIONS TO OBLIGATIONS OF FORT XXXXX
The obligations of Fort Xxxxx to consummate the transactions
contemplated by this Agreement shall be subject, to the extent
not waived, to the satisfaction of each of the following
conditions before or at Closing:
10.1 Representations and Warranties. Except for changes
contemplated by this Agreement, the representations and
warranties of Buyer contained in this Agreement that are
qualified by materiality shall be true, and all other such
representations and warranties shall be true and correct in all
material respects, in each case at and as of the date of this
Agreement, and as of the Closing, provided that representations
and warranties made as of a specified date need be so true and
correct (as described above) only as of the specified date.
10.2 Performance of this Agreement. Buyer shall have
performed all obligations and complied with all conditions
required by this Agreement to be performed or complied with by
it before or at the Closing, to the extent not waived.
10.3 Proceedings. All corporate and other proceedings to be
taken by Buyer in connection with the transactions contemplated
hereby shall have been completed, all such proceedings and all
documents incident thereto shall be reasonably satisfactory in
substance and form to Fort Xxxxx, and Fort Xxxxx shall have
received all such counterpart originals or other copies of such
documents as Fort Xxxxx xxx reasonably request.
10.4 Consents and Approvals. All consents, authorizations,
orders or approvals of any Authority which Buyer is required to
obtain in order to consummate the transactions contemplated by
this Agreement shall have been obtained by Buyer and all waiting
periods specified by law with respect thereto shall have passed.
10.5 Injunction, Litigation, etc. No order of any court or
administrative agency shall be in effect which restrains or
prohibits the consummation of the transactions contemplated
hereby, nor shall there be pending, any action or proceeding by
or before any Authority which is likely to prohibit, or
successfully challenge the validity of any of the transactions
contemplated by this Agreement.
10.6 Legislation. No statute, rule or regulation shall
have been enacted which prohibits or restricts the consummation
of the transactions contemplated hereby.
10.7 Related Agreements. Buyer shall have executed and
delivered each of the Related Agreements to which it is to be a
named party.
10.8 Officer's Certificate. Fort Xxxxx shall have
received a certificate, dated the Closing Date, signed by the
Chief Financial Officer of Buyer, certifying that the conditions
specified in this Article X have been fulfilled.
ARTICLE XI
DELIVERIES, ETC., IN CONNECTION WITH CLOSING
11.1 Time and Place of Closing. The closing (the "Closing")
shall occur as soon as practicable, but in no event later than
five business days following the satisfaction of the conditions
set forth in Articles IX and X, at the offices of Wachtell,
Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or
at the request of either party, such other date and place as the
parties shall agree. If the Closing takes place, the Closing and
all of the transactions contemplated by this Agreement shall be
deemed to have occurred simultaneously and become effective as of
12:01 a.m. on the date of Closing. The date on which the Closing
shall occur is referred to herein as the "Closing Date."
11.2 Deliveries by Fort Xxxxx. At or before the Closing,
Fort Xxxxx shall deliver to Buyer, as applicable, the following:
(a) duly executed deeds from the applicable member of the
FJ Group in recordable form which convey to Buyer title to the
Real Property, subject to Permitted Exceptions and subject to the
exceptions and exclusions contained in the Title Commitment as of
the Closing, other than any Title Defect which Fort Xxxxx has
elected to cure or otherwise delete pursuant to Section
7.13(c)(i). Fort Xxxxx will provide to Buyer's title insurance
company (i) customary good standing certificates and corporate
authorizations, (ii) owner's affidavits acceptable to such title
insurer to remove any exception for (A) mechanics' or
materialmens' liens and (B) rights of parties in possession, and
(iii) a gap indemnity acceptable to such title insurer for
insuring over the "gap" (i.e. the time period since the effective
date of the title company's last checkdown of title);
(b) a xxxx of sale and such other document or documents
(suitable for filing, registration or recording, if applicable)
as are necessary to transfer to Buyer the Assets other than the
Real Property, which transfer documents shall be without recourse
and shall contain no representations or warranties;
(c) evidence that all of the proceedings contemplated by
Section 9.3 have been completed;
(d) copies of any consents obtained as contemplated by
Section 9.4;
(e) certificates from the State Corporation Commission of
Virginia evidencing the good standing of Fort Xxxxx in the
Commonwealth of Virginia as of a recent date;
(f) each of the Related Agreements executed by the Person
of the FJ Group that is a party thereto; and
(g) such additional documents as Buyer may reasonably
request.
11.3 Deliveries by Buyer. At or before the Closing, Buyer
shall deliver to Fort Xxxxx, as applicable, the following:
(a) the Purchase Price pursuant to Section 3.1;
(b) a duly executed assumption of the Assumed Liabilities;
(c) evidence that all of the proceedings contemplated by
Section 10.3 have been completed;
(d) copies of any consents obtained as contemplated by
Section 10.4;
(e) certificates from the Secretary of State of the States
of Delaware and Colorado as to the good standing of each Buyer in
such State as of the most recent date obtainable;
(f) each of the Related Agreements duly executed by the
Buyer; and
(g) such additional documents as Fort Xxxxx xxx reasonably
request.
11.4 Deliveries of Related Agreements. At or before the
Closing, each of the parties to each Related Agreement shall
deliver an executed copy of such Agreement to the other parties
thereto.
ARTICLE XII
INDEMNIFICATION
12.1 Indemnification by Fort Xxxxx. (a) Subject to the
limitations contained in this Article XII, effective upon the
Closing, Fort Xxxxx shall indemnify and hold Buyer harmless
against all Losses arising out of:
(i) any breach of a representation or warranty made
by Fort Xxxxx in this Agreement (other than the
representations and warranties contained in (A) Section 5.6,
which representations and warranties shall not survive
Closing, with Buyer's sole recourse being under Section
12.1(c), and (B) Section 5.10(a), which representations and
warranties shall not survive Closing, with Buyer's sole
recourse being under such title insurance policies as Buyer
chooses to procure under Section 7.13 hereof);
(ii) the breach of any agreement of Fort Xxxxx
contained in this Agreement (but not the Related Agreements,
or obligations under Article VIII hereof, which shall stand
on their own); or
(iii) any Excluded Liability.
(b) Notwithstanding the foregoing, in the case of Losses
incurred as a result of the events described in Sections
12.1(a)(i) and (ii), Fort Xxxxx shall not be liable for
indemnification hereunder unless and until the aggregate amount
of such Losses exceeds $20,000,000 (the "Basket"), in which event
Buyer shall be entitled to indemnification as set forth above
solely to the extent that such Losses exceed such Basket,
provided, however, that Fort Xxxxx' aggregate liability with
respect to Sections 12.1(a)(i) and (ii) shall in no event exceed
$100 million (the "Cap"). Neither the Basket nor the Cap shall
apply to Losses under Section 12.1(a)(iii) above or Section
12.1(c) below.
(c) Any Loss to the extent attributable to conditions
existing at, or acts or omissions on or before, the Closing with
respect to any Environmental Condition existing on any
Transferred Site (including Losses arising under Environmental
Laws with respect to hazardous substances, contaminants,
pollutants or petroleum products leaching or physically migrating
from Transferred Sites that results from contamination or
pollution of a Transferred Site), that, as of Closing, constitutes
a violation of, or otherwise gives rise to any Liability under,
any Environmental Laws, but excluding any such Loss to the extent
arising from any change in law after the Closing, is a
"Pre-Closing Environmental Loss." The date that a requirement of
remediation or other action, or a claim for damages, penalties,
fines or other similar costs or expenses or for equitable relief
is first made by an Authority, or demanded by a potential
plaintiff with respect to any such Environmental Condition is the
"Environmental Accrual Date" with respect to such Environmental
Condition. Notwithstanding any provision of this Agreement to
the contrary, Buyer shall not be entitled to any indemnification
or reimbursement from Fort Xxxxx with respect to any Pre-Closing
Environmental Loss except to the extent that such Pre-Closing
Environmental Loss arises out of an Environmental Condition
having an Environmental Accrual Date before the fifth anniversary
of Closing and such Pre-Closing Environmental Losses from and
after Closing, in the aggregate, exceed $10 million and then,
only for the percentage of such excess specified herein. Subject
to the foregoing: for each period of twelve months following the
Closing and before the fifth anniversary of Closing, Fort Xxxxx
shall indemnify Buyer for Pre-Closing Environmental Losses
arising from items having an Environmental Accrual Date during
such twelve month period in an amount equal to the Applicable
Percentage of such Pre-Closing Environmental Loss. The
"Applicable Percentage" shall be 80% for events or conditions
with an Environmental Accrual Date during the period between
Closing and the first anniversary of Closing, 60% for events or
conditions with an Environmental Accrual Date during the period
between the first anniversary of Closing and the second
anniversary of Closing, 40% for events or conditions with an
Environmental Accrual Date during the period between the second
anniversary of Closing and the third anniversary of Closing, 20%
for events or conditions with an Environmental Accrual Date
during the period between the third anniversary of Closing and
the fourth anniversary of Closing, and 10% for events or
conditions with an Environmental Accrual Date during the period
between the fourth anniversary of Closing and the fifth
anniversary of Closing.
12.2 Indemnification by Buyer. (a) Subject to the
limitations contained in this Article XII, effective upon the
Closing, Buyer shall indemnify and hold Fort Xxxxx harmless
against all Losses arising out of:
(i) any breach of a representation or warranty made
by Buyer in this Agreement;
(ii) the breach of any agreement of Buyer contained in
this Agreement (but not the Related Agreements, or obliga-
tions under Article VIII hereof, which shall stand on their
own); or
(iii) any Assumed Liability or the failure by Buyer to
discharge any Assumed Liability.
(b) Notwithstanding the foregoing, in the case of Losses
incurred as a result of the events described in Sections
12.2(a)(i) and (ii), Buyer shall not be liable for
indemnification hereunder unless and until the aggregate amount
of such Losses exceeds the Basket, in which event Fort Xxxxx
shall be entitled to indemnification as set forth above solely to
the extent that such Losses exceed such Basket; provided,
however, that Buyer's aggregate liability with respect to
Sections 12.2(a)(i) and (ii) shall in no event exceed the Cap.
Neither the Basket nor the Cap shall apply to Losses under
Section 12.2(a)(iii) above.
12.3 Article VIII Rights and Obligations Excluded. The
rights and obligations of Fort Xxxxx and Buyer under Section
12.1(c) and Article VIII hereof shall not be subject to the Basket
or the Cap, or in the case of obligations under Article VIII, any
other provisions of this Article XII, but shall apply separately
in accordance with their terms.
12.4 Survival Date. (a) The indemnification obligations of
each party (the "Indemnitor") obligated to provide indemnifica-
tion to the other (the "Indemnitee") under Section 12.1(a)(i) or
Section 12.2(a)(i) shall lapse and become of no further force and
effect with respect to all claims not made by Indemnitee's
delivery to the Indemnitor of written notice containing details
reasonably sufficient to disclose to Indemnitor the nature and
scope of the claim by the eighteen month anniversary of the
Closing. Notwithstanding anything contained herein to the
contrary, no indemnified party shall be entitled to indemnifica-
tion with respect to any claim under Section 12.1(a)(i) or
12.2(a)(i), if such indemnified party has actual knowledge prior
to Closing of any circumstance constituting a breach or failure
of any such representation or warranty resulting in such claim
where such breach would have entitled such indemnified party not
to consummate the transactions contemplated by this Agreement at
Closing.
(b) The indemnification obligations under Sections
12.1(a)(ii) and (iii) and Sections 12.2(a)(ii) and (iii) shall
not be limited by time, but shall survive in accordance with the
terms of the underlying obligations to which they relate.
12.5 Definition of Loss. For purposes of this Article XII
and Article VIII, "Losses" shall mean, collectively, any and all
claims, damages, Liabilities, liens, losses or other obligations
whatsoever, together with costs and expenses, including, without
limitation, reasonable fees and disbursements of counsel and any
consultants or experts and expenses of investigation incurred by
an Indemnitee entitled to indemnification hereunder as a result
of a matter giving rise to a claim for indemnification hereunder,
incurred in connection with any action, suit or proceeding
("Legal Action") instituted against the Indemnitee determined,
net of the:
(a) tax savings realized by the Indemnitee in respect of
such matter net of any tax consequences of the indemnity payment;
(b) insurance proceeds to which the Indemnitee is entitled
in respect of such matter; and
(c) indemnity payments to which the Indemnitee is entitled
from parties other than the indemnifying party hereunder in
respect of such matter.
Notwithstanding any provision of this Article XII, any
damages to the extent attributable to a failure to reasonably
mitigate damages shall not constitute Losses.
12.6 Third Party Claims. (a) Each of the parties must
follow the procedures set forth in the following paragraphs of
this Section 12.6 in order to be entitled to indemnification
with respect to claims resulting from the assertion of liability
by persons or entities not parties to this Agreement, including
claims by any Authority for penalties, fines and assessments.
(b) The party seeking indemnification shall give prompt
written notice to the party from whom indemnification is sought
of any assertion of liability by a third party which might give
rise to a claim by the indemnified party against the indemnifying
party based on the indemnity agreements contained in this
Agreement, stating the nature and basis of the assertion and the
amount thereof, to the extent known.
(c) In the event that any Legal Action is brought against
an indemnified party with respect to which the indemnifying party
may have liability under an indemnity agreement contained in this
Agreement, the Legal Action shall, upon the written agreement of
the indemnifying party that it is obligated to indemnify under
such an indemnity agreement, be defended by the indemnifying
party and such defense shall include all appeals or reviews which
counsel for the indemnifying party shall deem appropriate. In
any such Legal Action the indemnified party shall have the right
to be represented by advisory counsel and accountants, at its own
expense, and the indemnifying party shall keep the indemnified
party fully informed as to such proceeding, at all stages
thereof, whether or not the indemnified party is represented by
its own counsel.
(d) Until the indemnifying party shall have assumed the
defense of any Legal Action, or if the indemnified and indemnify-
ing parties are both named parties in such Legal Action and the
indemnified party shall have reasonably concluded that there may
be defenses available to it that are materially different from or
in addition to the defenses available to the indemnifying party
(in which case the indemnifying party shall not be entitled to
assume the defense of such Legal Action, but shall remain
responsible for its obligation as an indemnitor), all legal and
other reasonable expenses incurred by the indemnified party as a
result of such Legal Action shall be borne by the indemnifying
party. In such event, the indemnified party shall make available
to the indemnifying party and its attorneys and accountants, for
review and copying, its books and records relating to such Legal
Action and the parties shall render to each other such assistance
as may reasonably be requested to facilitate the proper and
adequate defense of any such Legal Action.
(e) The indemnifying party shall not make any settlement of
any claim without the written consent of the indemnified party,
which consent shall not be unreasonably withheld. Without
limiting the generality of the foregoing, it shall not be deemed
unreasonable to withhold consent to a settlement involving
injunctive or other equitable relief against the indemnified party
or its assets, employees, business or methods of doing business.
(f) The indemnifying party shall be relieved of its obliga-
tion to indemnify the indemnified party to the extent that any
failure to give or delay in giving timely notice as required by
this Section 12.6 prejudices the indemnifying party.
12.7 Subrogation Rights; No Duplication. (a) Any Indemnitor
required to make a payment under this Article XII shall be
subrogated, to the extent of such payment, to the rights of the
entity to which such payment has been made for reimbursement or
indemnification against third parties relating to the claim on
which such payment has been based.
(b) Notwithstanding anything in this Article XII to the
contrary, the obligations of each Indemnitor and its Affiliates
pursuant to this Article XII shall be without duplication as
between entities to which such Indemnitor and its Affiliates are
required to make payments.
ARTICLE XIII
TERMINATION, AMENDMENT AND WAIVER
13.1 Termination. This Agreement may be terminated at any
time before the Closing:
(i) by mutual written consent of the parties hereto;
(ii) by either Fort Xxxxx on the one hand, or Buyer on
theother, if there has been a material breach on the part of
the other of a representation, warranty or agreement
contained herein, or in any writing delivered pursuant to
the provisions of this Agreement, which remains uncured;
provided, however, that no breach of representation or
warranty shall form the basis of a right to terminate this
Agreement if the party to whom such representation or
warranty was made or its officers, directors or
representatives had notice of the existence of such breach
on or before the date of this Agreement; or
(iii) by Fort Xxxxx or Buyer if the Closing has not
occurred by the date which is 120 days after the date of this
Agreement.
13.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 13.1, this Agreement shall become wholly void
and of no further force and effect and there shall be no further
liability or obligation on the part of any party hereto, except
to pay such expenses and amounts as are required of it pursuant
to Section 7.5 hereof, and to comply with the confidentiality
provisions of Section 7.6. No such termination shall relieve
either party of any liability to the other for any breach of this
Agreement prior to the date of termination; provided that in no
event shall either party be liable to the other for any amount in
excess of $20,000,000 in connection with such a pre-Closing
breach.
13.3 Amendment. This Agreement may be amended at any time
only by writing executed by each of the parties hereto.
13.4 Extension; Waiver. At any time before the Closing, any
party to this Agreement which is entitled to the benefits thereof
may (a) extend the time for the performance of any of the
obligations of another party hereto, (b) waive any
misrepresentation (including an omission) or breach of a
representation or warranty of another party hereto, whether
contained herein or in any exhibit, schedule or document
delivered pursuant hereto, or (c) waive compliance of another
party hereto with any of the agreements or conditions contained
herein. Any such extension or waiver shall be valid if set forth
in a written instrument signed by the party or parties giving the
extension or waiver.
ARTICLE XIV
GENERAL PROVISIONS
14.1 Notices. All notices and other communications required
or permitted hereunder shall be in writing (including telefax or
similar writing) and shall be given,
(a) if to Fort Xxxxx, to:
Fort Xxxxx Corporation
0000 Xxxx Xxxx Xxxx
XX Xxx 00
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxxxx, XX
Telefax: (000) 000-0000
with copies to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telefax: (000) 000-0000
(b) if to Buyer, to:
ACX Technologies, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X.X. Xxxxxx
Telefax: (000) 000-0000
with a copy to:
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: W. Xxxx Xxxxxx
Telefax: (000) 000-0000
or (c) in either case, to such other person or to such other
address or telefax number as the party to whom notice is to be
given may have furnished the other parties in writing by like
notice. If mailed, any such communication shall be deemed to
have been given on the third business day following the day on
which the communication is posted by registered or certified mail
(return receipt requested). If given by any other means it shall
be deemed to have been given when delivered to the address
specified in this Section 14.1.
14.2 Interpretation. The headings contained in this Agree-
ment are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement. Unless the context
otherwise requires, terms (including defined terms) used in the
plural include the singular, and vice versa.
14.3 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
14.4 Miscellaneous. This Agreement (a) constitutes the
entire agreement and supersedes all other prior agreements and
understandings, both written and oral, between the parties with
respect to the subject matter hereof; (b) is not intended to and
shall not confer upon any person, association or entity, other
than the parties hereto, any rights or remedies with respect to
the subject matter or any provision hereof; (c) shall not be
assigned by operation of law or otherwise, except that Buyer may
assign this Agreement to a wholly-owned subsidiary of ACX
provided that each of ACX and GPC remains obligated under the
terms hereunder; and (d) shall be governed in all respects by the
laws of the state of Delaware without regard to its laws or
regulations relating to choice of law.
14.5 Third Party Beneficiaries. Nothing herein contained,
whether express or implied, is intended to confer any right or
remedy under or by reason of this Agreement other than to the
parties hereto and their respective successors and assigns, and
no action may be brought by a third party claiming as a third
party beneficiary to this Agreement or the transactions
contemplated herein.
IN WITNESS WHEREOF the parties hereto have caused this
Agreement to be executed by their duly authorized officers.
FORT XXXXX CORPORATION
By:/s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: EVP-CFO
ACX TECHNOLOGIES, INC.
By:/s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President and Co-CEO
GRAPHIC PACKAGING CORPORATION
By:/s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President and CEO
