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Exhibit 10.45
ASSET AND SHARE PURCHASE AGREEMENT
BY AND AMONG
SEQUA CORPORATION
MEGTEC SYSTEMS, INC.
XXXXXXX TECHNOLOGY COMPANY, INC.
XXXXXXX ENKEL CORPORATION
XXXXXXX XXXX AB
AND
XXXXXXX ASIA PACIFIC CORPORATION
DATED JULY 20, 2001
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TABLE OF CONTENTS
Page
LIST OF EXHIBITS AND SCHEDULES ...................................................................... VII
RECITALS ............................................................................................ 1
Article I: GENERAL PROVISIONS ...................................................................... 3
SECTION 1.01. DEFINITIONS .............................................................. 3
SECTION 1.02. CERTAIN OTHER DEFINITIONS AND MEANINGS; INTERPRETATION ................... 3
SECTION 1.03. SOLE DISCRETION .......................................................... 4
SECTION 1.04. MEGTEC'S KNOWLEDGE ....................................................... 4
SECTION 1.05. XXXXXXX'X KNOWLEDGE ...................................................... 4
SECTION 1.06. TRANSACTIONS ............................................................. 4
Article II: PURCHASE, SALE AND RELATED MATTERS ..................................................... 5
A. PURCHASE AND SALE OF CERTAIN ASSETS AND ASSUMPTION OF CERTAIN LIABILITIES OF
ENKEL AND XXXXXXX XXXX ..................................................................... 5
SECTION 2.01. PURCHASE AND SALE OF PURCHASED ASSETS .................................... 5
SECTION 2.02. PURCHASED ASSETS ......................................................... 6
SECTION 2.03. EXCLUDED ASSETS .......................................................... 9
SECTION 2.04. ASSUMED OBLIGATIONS ...................................................... 11
SECTION 2.05. EXCLUDED LIABILITIES ..................................................... 13
SECTION 2.06. ASSIGNMENT OF CONTRACTS .................................................. 19
B. PURCHASE AND SALE OF SHARES OF CS PRINTING ................................................. 21
SECTION 2.07. TRANSFERRED ASSETS ....................................................... 21
SECTION 2.08. PURCHASE AND SALE OF SHARES .............................................. 21
SECTION 2.09. RETAINED ASSETS .......................................................... 21
SECTION 2.10. CONTINUING OBLIGATIONS ................................................... 25
SECTION 2.11. INDEMNIFIED LIABILITIES .................................................. 27
ARTICLE III: PURCHASE PRICE ........................................................................ 33
SECTION 3.01. PURCHASE PRICE ........................................................... 33
SECTION 3.02. CLOSING TANGIBLE NET BOOK VALUE .......................................... 33
SECTION 3.03. PAYMENT OF ESTIMATED PURCHASE PRICE ...................................... 34
SECTION 3.04. ADJUSTMENT TO ESTIMATED PURCHASE PRICE ................................... 34
SECTION 3.05. ALLOCATION OF PURCHASE PRICE ............................................. 36
ARTICLE IV: CLOSING ................................................................................ 37
SECTION 4.01. CLOSING .................................................................. 37
Article V: REPRESENTATIONS AND WARRANTIES OF SEQUA AND MEGTEC ...................................... 41
SECTION 5.01. CORPORATE ORGANIZATION AND QUALIFICATION ................................. 41
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SECTION 5.02. AUTHORIZATION OF TRANSACTION ............................................. 42
SECTION 5.03. NON-CONFLICT ............................................................. 42
SECTION 5.04. FINDER; BROKERS .......................................................... 42
SECTION 5.05. FINANCIAL WHEREWITHAL .................................................... 43
SECTION 5.06. LEGAL PROCEEDINGS ........................................................ 43
SECTION 5.07. DISCLOSURE ............................................................... 43
Article VI: REPRESENTATIONS AND WARRANTIES OF XXXXXXX TECHNOLOGY, XXXXXXX XXXX, XXXXXXX ASIA AND
XXXXXXX ENKEL .......................................................................... 43
SECTION 6.01. CORPORATE ORGANIZATION AND QUALIFICATION ................................ 43
SECTION 6.02. AUTHORIZATION OF TRANSACTION ............................................ 44
SECTION 6.03. NON-CONFLICT ............................................................ 45
SECTION 6.04. INVESTMENTS; SUBSIDIARIES ............................................... 46
SECTION 6.05. FINANCIAL STATEMENTS .................................................... 47
SECTION 6.06. BOOKS AND RECORDS; ACCOUNTING PRACTICES ................................. 48
SECTION 6.07. ABSENCE OF CERTAIN CHANGES .............................................. 49
SECTION 6.08. UNDISCLOSED LIABILITIES ................................................. 50
SECTION 6.09. RECEIVABLES ............................................................. 50
SECTION 6.10. INVENTORIES ............................................................. 51
SECTION 6.11. ACCOUNTS PAYABLE ........................................................ 51
SECTION 6.12. REAL PROPERTY ........................................................... 51
SECTION 6.13. PERSONAL PROPERTY LEASES ................................................ 53
SECTION 6.14. TAXES ................................................................... 53
SECTION 6.15. LEGAL PROCEEDINGS ....................................................... 54
SECTION 6.16. ORDERS .................................................................. 55
SECTION 6.17. COMPLIANCE WITH LEGAL REQUIREMENTS ...................................... 56
SECTION 6.18. PERMITS ................................................................. 57
SECTION 6.19. ENVIRONMENTAL MATTERS ................................................... 58
SECTION 6.20. TITLE TO PROPERTIES; SUFFICIENCY OF ASSETS .............................. 60
SECTION 6.21. PERSONAL PROPERTY ....................................................... 61
SECTION 6.22. INTELLECTUAL PROPERTY. .................................................. 61
SECTION 6.23. SHARED INTELLECTUAL PROPERTY ............................................ 66
SECTION 6.24. INSURANCE ............................................................... 69
SECTION 6.25. EMPLOYEES ............................................................... 70
SECTION 6.26. EMPLOYEE BENEFIT PLANS; ERISA ........................................... 72
SECTION 6.27. CONTRACTS AND COMMITMENTS ............................................... 74
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TABLE OF CONTENTS
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SECTION 6.28. STATUS OF BACKLOG ....................................................... 79
SECTION 6.29. LOSS CONTRACTS .......................................................... 79
SECTION 6.30 PURCHASE COMMITMENTS .................................................... 79
SECTION 6.31. BUSINESS CONDUCT ........................................................ 79
SECTION 6.32. RELATIONSHIPS WITH RELATED PERSONS ...................................... 80
SECTION 6.33. CUSTOMERS ............................................................... 81
SECTION 6.34. SUPPLIERS ............................................................... 82
SECTION 6.35. CS PRINTING ............................................................. 83
SECTION 6.36. BROKERS; FINDERS ........................................................ 84
SECTION 6.37. DISCLOSURE .............................................................. 84
Article VII: PRE-CLOSING COVENANTS ................................................................ 85
SECTION 7.01. CONDUCT OF BUSINESS PRIOR TO THE CLOSING TIME ........................... 85
SECTION 7.02. NO PUBLIC ANNOUNCEMENT .................................................. 86
SECTION 7.03. ACQUISITION PROPOSALS ................................................... 87
SECTION 7.04. RIGHT OF INSPECTION; ACCESS ............................................. 87
SECTION 7.05. CONSENTS AND APPROVALS .................................................. 88
SECTION 7.06. EFFORTS TO CLOSE ........................................................ 88
SECTION 7.07. INSURANCE. .............................................................. 88
SECTION 7.08. UPDATING OF SCHEDULES ................................................... 89
SECTION 7.09. LABOR NOTICE ............................................................ 90
SECTION 7.10. TRANSFERRED ASSETS ...................................................... 90
SECTION 7.11. CONFIDENTIALITY ......................................................... 90
SECTION 7.12. TRANSFER OF OWNERSHIP OF XXXXXXX PRINTING ............................... 90
SECTION 7.13. EMPLOYEE INTERVIEWS ..................................................... 91
SECTION 7.14. CTC SPLICER REFURBISHMENT ............................................... 91
Article VIII. POST-CLOSING COVENANTS .............................................................. 91
SECTION 8.01. USE OF XXXXXXX ENKEL AND XXXXXXX XXXX NAMES ............................. 91
SECTION 8.02. RESTRICTIVE COVENANTS ................................................... 91
SECTION 8.03. TRANSITION AND FURTHER ASSURANCES ....................................... 96
SECTION 8.04. COOPERATION ............................................................. 97
SECTION 8.05. ADMINISTRATION OF ACCOUNTS .............................................. 98
SECTION 8.06. ACCESS TO FORMER BUSINESS RECORDS ....................................... 99
SECTION 8.07. PRODUCT WARRANTY CLAIMS AND SERVICES .................................... 100
SECTION 8.08. UNCOLLECTED RECEIVABLES ................................................. 101
SECTION 8.09. RESTORATION OBLIGATIONS FOR ROCKFORD FACILITY ........................... 103
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SECTION 8.10. TRANSFER TAX ............................................................ 103
SECTION 8.11. REMOVAL OF PURCHASED ASSETS FROM THE ROCKFORD FACILITY .................. 103
SECTION 8.12. TRANSITION AND TERMINATION OF CERTAIN SERVICES .......................... 105
SECTION 8.13. TRANSFER OF TRANSFERRED ASSETS .......................................... 107
SECTION 8.14 SUPPLY OF CERTAIN PRODUCTS .............................................. 108
Article IX: EMPLOYMENT MATTERS .................................................................... 108
SECTION 9.01. OFFERS OF EMPLOYMENT .................................................... 108
SECTION 9.02. EMPLOYEE OBLIGATIONS .................................................... 110
Article X: CONDITIONS PRECEDENT TO OBLIGATIONS .................................................... 111
A. CONDITIONS TO OBLIGATIONS OF MEGTEC ....................................................... 111
SECTION 10.01. REPRESENTATIONS AND WARRANTIES .......................................... 111
SECTION 10.02. PERFORMANCE OF COVENANTS ................................................ 112
SECTION 10.03. CONSENTS ................................................................ 112
SECTION 10.04. NO MATERIAL ADVERSE CHANGE .............................................. 112
SECTION 10.05. LEGAL RESTRICTIONS ...................................................... 113
SECTION 10.06. APPROVALS ............................................................... 113
SECTION 10.07. EMPLOYEE NOTICES ........................................................ 113
SECTION 10.08. SECURITY INTERESTS ...................................................... 113
SECTION 10.09. DAMAGES BY CASUALTY ..................................................... 113
SECTION 10.10. PERMITS ................................................................. 114
SECTION 10.11. LEGAL OPINION ........................................................... 114
SECTION 10.12. REGULATORY AGENCY APPROVAL .............................................. 114
SECTION 10.13. CUSTOMER CONTACTS ........................................................ 114
SECTION 10.14. KEY EMPLOYEES ............................................................ 115
SECTION 10.15. TRANSFER OF OWNERSHIP OF XXXXXXX PRINTING ................................ 115
SECTION 10.16. REAL ESTATE LEASES ....................................................... 116
SECTION 10.17. PRODUCTION DRAWINGS ...................................................... 116
SECTION 10.18. CERTAIN TRANSFERS TO XXXXXXX PRINTING. ................................... 116
SECTION 10.19 DELIVERY AND APPROVAL OF CERTAIN SCHEDULES AND EXHIBITS ................... 116
B. CONDITIONS TO OBLIGATIONS OF XXXXXXX ENKEL, XXXXXXX XXXX AND XXXXXXX ASIA ................. 116
SECTION 10.20. REPRESENTATIONS AND WARRANTIES .......................................... 117
SECTION 10.21. PERFORMANCE OF COVENANTS ................................................ 117
SECTION 10.22 CONSENTS ................................................................ 117
SECTION 10.23. PROCEEDINGS ............................................................. 117
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SECTION 10.24. LEGAL RESTRICTIONS ...................................................... 118
SECTION 10.25. APPROVALS ............................................................... 118
SECTION 10.26. LEGAL OPINION ........................................................... 118
SECTION 10.27. TRANSFER OF OWNERSHIP OF XXXXXXX PRINTING ............................... 118
SECTION 10.28 DELIVERY AND APPROVAL OF CERTAIN SCHEDULES AND EXHIBITS ................. 118
Article XI: REMEDIES .............................................................................. 119
SECTION 11.01. SURVIVAL 119
SECTION 11.02. INDEMNIFICATION BY XXXXXXX TECHNOLOGY, XXXXXXX
XXXX, XXXXXXX ASIA AND XXXXXXX ENKEL .................................... 119
SECTION 11.03. INDEMNIFICATION BY MEGTEC ............................................... 120
SECTION 11.04. THIRD PARTY CLAIM PROCEDURES ............................................ 121
SECTION 11.05. LIMITATIONS ............................................................. 123
SECTION 11.06. ENVIRONMENTAL LIMITATION ................................................ 126
SECTION 11.07. SOLE AND EXCLUSIVE REMEDY ............................................... 132
SECTION 11.08. COVENANT TO MAINTAIN INSURANCE .......................................... 132
SECTION 11.09. SPECIFIC PERFORMANCE .................................................... 133
SECTION 11.10. ATTORNEY FEES ........................................................... 133
SECTION 11.11. CONSENT TO JURISDICTION ................................................. 134
Article XII: TERMINATION........................................................................... 135
SECTION 12.01. TERMINATION BY EITHER PARTY ............................................. 135
SECTION 12.02. TERMINATION BY XXXXXXX TECHNOLOGY, XXXXXXX XXXX,
XXXXXXX ASIA OR XXXXXXX ENKEL ........................................... 135
SECTION 12.03. TERMINATION BY MEGTEC ................................................... 136
SECTION 12.04. EFFECT OF TERMINATION ................................................... 137
Article XIII: MISCELLANEOUS PROVISIONS ............................................................ 137
SECTION 13.01. NOTICES ................................................................. 137
SECTION 13.02. ENTIRE AGREEMENT ........................................................ 138
SECTION 13.03. ASSIGNMENT .............................................................. 138
SECTION 13.04. CAPTIONS ................................................................ 139
SECTION 13.05. WAIVER; CONSENT ......................................................... 139
SECTION 13.06. NO THIRD PARTY BENEFICIARIES ............................................ 140
SECTION 13.07. COUNTERPARTS ............................................................ 140
SECTION 13.08. GENDER .................................................................. 140
SECTION 13.09. GOVERNING LAW ........................................................... 140
SECTION 13.10. RISK OF LOSS ............................................................ 140
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SECTION 13.11. INTERPRETATION .......................................................... 140
SECTION 13.12. VALIDITY ................................................................ 141
SECTION 13.13. BULK TRANSFER LAWS ...................................................... 141
SECTION 13.14. EXPENSES ................................................................ 141
SECTION 13.15. GUARANTEE ............................................................... 142
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LIST OF EXHIBITS AND SCHEDULES
TO ASSET AND SHARE PURCHASE AGREEMENT
LIST OF EXHIBITS
Exhibit A Definitions
Exhibit B Accounting Instructions
Exhibit C Allocation of Purchase Price
Exhibit D Xxxx of Sale
Exhibit E Assignment of Patents and Patent Applications
Exhibit F Assignment of Marks
Exhibit G Certificate of Secretary of Xxxxxxx Technology
Re: Certificate of Incorporation and By-Laws
Exhibit H Certificate of Secretary of Xxxxxxx Technology
Regarding Closing Conditions
Exhibit I Certificate of Secretary of Xxxxxxx Enkel
Re: Certificate of Incorporation and By-Laws
Exhibit J Certificate of Secretary of Xxxxxxx Enkel
Regarding Closing Conditions
Exhibit K Certificate of Director of Xxxxxxx Xxxx
Re: Articles of Association
Exhibit L Certificate of Director of Xxxxxxx Xxxx
Regarding Closing Conditions
Exhibit M Certificate of Secretary of Xxxxxxx Asia
Re: Certificate of Incorporation and By-Laws
Exhibit N Certificate of Secretary of Xxxxxxx Asia
Regarding Closing Conditions
Exhibit O Consignment Agreement
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Exhibit P Assumption Agreement of Assumed Obligations
Exhibit Q Certificate of the Senior Associate General Counsel of Sequa Corporation
Re: Certificate of Incorporation and By-Laws
Exhibit R Certificate of the Senior Associate General Counsel of Sequa
Corporation Regarding Closing Conditions
Exhibit S Certificate of Secretary of MECTEC Systems, Inc.
Re: Certificate of Incorporation and By-Laws
Exhibit T Certificate of Secretary of MEGTEC Systems, Inc.
Re: Closing Conditions
Exhibit U Transferred Xxxxxxx Enkel Employees
Exhibit V MEGTEC Benefit Plans
Exhibit W Excluded Employees
Exhibit X Opinion of Counsel for Xxxxxxx
Exhibit Y Opinion of Counsel for MEGTEC
Exhibit Z Permitted Liens
LIST OF SCHEDULES
Schedule 1.04 MEGTEC's Knowledge
Schedule 1.05 Xxxxxxx'x Knowledge
Schedule 2.02(a) Fixed Assets
Schedule 2.02(c) Listed Permits
Schedule 2.02(d) Intellectual Property
Schedule 2.02(e) Supplier Contracts
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Schedule 2.02(f) Customer Contracts
Schedule 2.02(g) Other Contracts
Schedule 2.02(h) Personal Property Leases
Schedule 2.02(k) Letters of Credits and Bank Guarantees
Schedule 2.02(p) Shared Intellectual Property
Schedule 2.02(s) Real Estate Leases
Schedule 2.02(t) Xxxxxxx Xxxx Bank Accounts
Schedule 2.02(v) Other Purchased Assets
Schedule 2.03(j) Excluded Accounts Receivable
Schedule 2.03(k) Consigned Inventories
Schedule 2.03 (l) Other Excluded Assets - Xxxxxxx Enkel and Xxxxxxx Xxxx
Schedule 2.04(e) Customer Deposits - Xxxxxxx Enkel and Xxxxxxx Xxxx
Schedule 2.04(g) Xxxxxxx Xxxx Employee Plans
Schedule 2.07(d) Transferred Accounts Receivable
Schedule 2.07(e) Other Transferred Assets - Xxxxxxx Printing
Schedule 2.09(a) Retained Fixed Assets
Schedule 2.09(c) Retained Listed Permits
Schedule 2.09(d) Retained Intellectual Property
Schedule 2.09(e) Retained Supplier Contracts
Schedule 2.09(f) Retained Customer Contracts
Schedule 2.09(g) Retained Other Contracts
Schedule 2.09(h) Retained Leases
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Schedule 2.09(k) Letters of Credit and Bank Guarantees
Schedule 2.09(p) Retained Shared Intellectual Property
Schedule 2.09(v) Insurance Policy - Xxxxxxx Printing
Schedule 2.09(w) Other Retained Assets
Schedule 2.10(e) Customer Deposits - Xxxxxxx Printing
Schedule 6.01 Corporate Organization and Qualification
Schedule 6.03 Non-Conflict
Schedule 6.04(a) Investments and Activities
Schedule 6.04(b) Capitalization
Schedule 6.05(a) Financial Statements
Schedule 6.05(b) Financial Statements: Services and Charges
Schedule 6.05(c) Financial Statements: Budgets
Schedule 6.05(d) Financial Statements: Bank Accounts
Schedule 6.05(e) Financial Statements: Capital Spending Budget
Schedule 6.06(a) Books and Records
Schedule 6.07 Absence of Certain Changes
Schedule 6.08 Undisclosed Liabilities
Schedule 6.09 Receivables and Retained Receivables
Schedule 6.10 Inventories
Schedule 6.11 Accounts Payable
Schedule 6.12(a) Roll Handling Group Facilities: Description
Schedule 6.12(b) Roll Handling Group Facilities: Compliance with Law
Schedule 6.13 Personal Property Leases
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Schedule 6.14 Taxes
Schedule 6.15(a) Legal Proceedings: Current
Schedule 6.15(b) Legal Proceedings: Prior
Schedule 6.16(a) Orders
Schedule 6.17 Compliance with Legal Requirements
Schedule 6.18(a) Listed Permits
Schedule 6.18(b) Compliance with Permits
Schedule 6.19(a) Environmental: Former Facilities
Schedule 6.19(b) Environmental: Reports
Schedule 6.19(c) Environmental: Compliance
Schedule 6.19(e) Environmental: Underground Tanks
Schedule 6.19(g) Environmental: Enforcement Actions
Schedule 6.19(h) Environmental: Conditions and Events
Schedule 6.20(a) Title to Purchased Assets
Schedule 6.20(c) Sufficiency of Purchased Assets
Schedule 6.21 Personal Property
Schedule 6.22(a) Intellectual Property: Listing
Schedule 6.22(b) Intellectual Property: Licenses and Agreements
Schedule 6.22(c) Intellectual Property: Title
Schedule 6.22(h)(1) Intellectual Property: Competition
Schedule 6.22(h)(2) Intellectual Property: Competition Breaches
Schedule 6.22(k) Intellectual Property: Computer Matters
Schedule 6.23(a) Shared Intellectual Property: Listing
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Schedule 6.23(b) Shared Intellectual Property: Title
Schedule 6.24(a) Insurance: Policies
Schedule 6.24(b) Insurance: Other Arrangements
Schedule 6.24(c) Insurance: Loss Runs
Schedule 6.24(d) Insurance: Contractual Compliance
Schedule 6.25(a) Employees: Listing
Schedule 6.25(b) Inactive Employees
Schedule 6.25(c) Employees: Union Matters
Schedule 6.25(e) Employees: Resignations
Schedule 6.25(f) Employees: Salary and Wage Accruals
Schedule 6.26(a) Pension Plans and Welfare Plans
Schedule 6.26(i) Xxxxxxx Xxxx Employees
Schedule 6.27(a) Contracts and Commitments
Schedule 6.27(f) Required Consents
Schedule 6.28 Status of Backlog
Schedule 6.29 Loss Contracts
Schedule 6.31 Conduct of Business
Schedule 6.32(a) Related Parties: Contracts
Schedule 6.32(b) Related Parties: Prior Contracts
Schedule 6.33(a) Customers: Listing
Schedule 6.33(b) Customers: Terminations
Schedule 6.33(c) Customers: Potential Terminations
Schedule 6.33(d) Customers: Disputes
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Schedule 6.33(e) Customers: Standard Terms and Conditions
Schedule 6.34(a) Suppliers: Listing
Schedule 6.34(b) Suppliers: Terminations
Schedule 6.34(c) Suppliers: Potential Terminations
Schedule 6.34(e) Suppliers: Standard Terms and Conditions
Schedule 6.37 Other Disclosures
Schedule 8.02 Certain Former Employees
Schedule 8.l2 Designated Enkel Customer Contracts
Schedule 8.14 MEGTEC Supplied Products
Schedule 9.01(d) Collective Bargaining Agreements
Schedule 10.04 Certain Bankruptcies
Schedule 10.13(a) Customer Contacts
Schedule 10.13(b) Customer Verifications
Schedule 10.13(b)(iii) Certain Significant Customers
Schedule 10.14 Key Employees
Schedule 10.16 Amal Real Estate Lease (TGOJ)
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ASSET AND SHARE PURCHASE AGREEMENT
This Asset and Share Purchase Agreement (the "Agreement") dated this
_____ day of July, 2001, is by and among Sequa Corporation, a Delaware
corporation ("Sequa"), MEGTEC Systems, Inc., a Delaware corporation ("MEGTEC"),
Xxxxxxx Technology Company, Inc., a Delaware corporation ("Xxxxxxx Technology"),
Xxxxxxx Enkel Corporation, a Delaware corporation ("Xxxxxxx Enkel"), Xxxxxxx
Xxxx AB, a Swedish limited liability company ("Xxxxxxx Xxxx") and Xxxxxxx Asia
Pacific Corporation, a Delaware corporation ("Xxxxxxx Asia").
RECITALS
(A) Xxxxxxx Technology, through Xxxxxxx Enkel and Xxxxxxx Xxxx, and
Xxxxxxx Asia, through Xxxxxxx Printing Equipment (Shanghai) Company, Ltd.
("Xxxxxxx Printing"), is engaged in the operation of a business, whose primary
locations are in Rockford, Illinois, Amal, Sweden and Shanghai, China and which
business designs, develops, manufactures, fabricates, assembles, markets,
distributes, sells and services zero speed splicers, match speed pasters (also
known as splicers), infeeds, rewinds, unwinds, air shafts for splicers, pasters,
rewinders and unwinders and other equipment used for rewinding and unwinding, or
otherwise handling reels which are unwound to create webs, and any other related
equipment which at any time have been or are currently being designed,
developed, manufactured, fabricated, assembled, marketed, distributed, sold and
serviced by or on behalf of Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx Printing for
use primarily in the newspaper, commercial printing and converting industries in
Europe, Asia, North America and South America (collectively, the "Roll Handling
Business"). Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Printing are collectively
referred to herein as the "Roll Handling Group".
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(B) MEGTEC desires to purchase from Xxxxxxx Enkel, and Xxxxxxx Enkel
desires to transfer, sell and convey to MEGTEC, substantially all of the assets,
business and properties of Xxxxxxx Enkel used, held or available for use or
under development for use by Xxxxxxx Enkel in the Roll Handling Business,
including Xxxxxxx Enkel's portion of the Purchased Assets, on the terms and
subject to the conditions set forth in this Agreement.
(C) MEGTEC desires to purchase or cause one of its Affiliates (the
"Designated Purchaser") to purchase from Xxxxxxx Xxxx, and Xxxxxxx Xxxx desires
to transfer, sell and convey to MEGTEC or a Designated Purchaser, as the case
may be, substantially all of the assets, business and properties of Xxxxxxx Xxxx
used, held or available for use or under development for use by Xxxxxxx Xxxx in
the Roll Handling Business, including Xxxxxxx Amal's portion of the Purchased
Assets, on the terms and subject to the conditions set forth in this Agreement.
(D) MEGTEC desires to purchase or cause a Designated Purchaser to
purchase from Xxxxxxx Asia, and Xxxxxxx Asia desires to transfer, sell and
convey to MEGTEC or a Designated Purchaser, as the case may be, all of the
issued and outstanding shares of capital stock (the "CS Printing Shares") of CS
Printing, Inc., a Delaware corporation ("CS Printing"), to whom Xxxxxxx Asia
will transfer the ownership interest in and shares of Xxxxxxx Printing prior to
Closing, on the terms and subject to the conditions set forth in this Agreement.
(E) Xxxxxxx Technology is the indirect owner of all of the issued and
outstanding shares of capital stock of Xxxxxxx Enkel, Xxxxxxx Xxxx, CS Printing
and Xxxxxxx Printing.
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AGREEMENT
NOW, THEREFORE, in consideration of the premises and the agreements,
representations, warranties and covenants contained herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and subject to and upon the terms and conditions of this Agreement,
the Parties, intending to be legally bound, do hereby agree as follows:
ARTICLE I: GENERAL PROVISIONS
SECTION 1.01. DEFINITIONS. Terms used in this Agreement shall have the
meanings ascribed to them by definition in this Agreement or in EXHIBIT A
hereto.
SECTION 1.02. CERTAIN OTHER DEFINITIONS AND MEANINGS; INTERPRETATION.
For purpose of this Agreement, the term "Parties" means (except where the
context otherwise requires) Sequa, MEGTEC, Xxxxxxx Technology, Xxxxxxx Asia,
Xxxxxxx Xxxx and Xxxxxxx Enkel and the term "Party" means any one of the
Parties. Unless the context of this Agreement otherwise clearly requires, (a)
references to the plural include the singular, (b) references to the singular
include the plural, (c) references to any gender include the other gender, (d)
the term "including" is not limiting and has the inclusive meaning represented
by the phrase "including without limitation", (e) the term "include" is not
limiting and has the inclusive meaning represented by the phrase "include
without limitation", (f) the term "includes" is not limiting and has the
inclusive meaning represented by the phrase "includes without limitation", (g)
the term "or" has the inclusive meaning represented by the phrase "and/or", (h)
the terms "hereby", "hereof", "herein", "hereunder", "hereto", and similar terms
in this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement, (i) the terms "day" and "days" mean and refer to
calendar day(s) and
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(j) the terms "year" and "years" mean and refer to calendar year(s). References
herein to Articles, Sections, Exhibits, Schedules and Supplements, unless
otherwise designated, shall be to the relevant Articles, Sections, Exhibits,
Schedules and Supplements to this Agreement. All dollar amounts referred to
herein are in United States Dollars.
SECTION 1.03. SOLE DISCRETION. The words "sole discretion" as used in
this Agreement shall mean a determination made in such Party's sole and absolute
discretion, which discretion shall not be subject to challenge for any reason
whatsoever, including, without limitation, bad faith, arbitrariness or
capriciousness.
SECTION 1.04. MEGTEC'S KNOWLEDGE. Where a representation contained in
this Agreement is qualified by the phrase "to MEGTEC's Knowledge" (or words of
similar import), such expression shall include any actual knowledge of the
directors, officers, management and employees of MEGTEC and Sequa listed in
SCHEDULE 1.04 and shall also encompass such matters, if any, which such persons,
acting in their current capacities, should have known based upon a reasonable
due diligence investigation of the facts and circumstances then existing.
SECTION 1.05. XXXXXXX'X KNOWLEDGE. Where a representation contained in
this Agreement is qualified by the phrase "to Xxxxxxx'x Knowledge" (or words of
similar import), such expression shall include any actual knowledge of the
directors, officers, management and employees of Xxxxxxx Technology, Xxxxxxx
Enkel, Xxxxxxx Xxxx, CS Printing, Xxxxxxx Printing and Xxxxxxx Asia listed in
SCHEDULE 1.05 and shall also encompass such matters, if any, which such persons,
acting in their current capacities, should have known based upon a reasonable
due diligence investigation of the facts and circumstances then existing.
SECTION 1.06. TRANSACTIONS. On and subject to the terms and conditions
of this Agreement, (a) at the Closing, MEGTEC and any Designated Purchaser will
purchase, acquire and accept from Xxxxxxx Enkel and Xxxxxxx Xxxx, and Xxxxxxx
Enkel and Xxxxxxx Xxxx will sell, convey, transfer, assign and
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deliver to MEGTEC and any Designated Purchaser, or cause to be sold, conveyed,
transferred, assigned and delivered to MEGTEC and any Designated Purchaser, all
of the Purchased Assets, free and clear of any and all Liens; (b) at the
Closing, MEGTEC or any Designated Purchaser will purchase, acquire and accept
from Xxxxxxx Asia, and Xxxxxxx Asia will sell, transfer, convey and assign to
MEGTEC or any Designated Purchaser, all of the CS Printing Shares, free and
clear of any and all Liens; (c) at the Closing, MEGTEC will pay to Xxxxxxx
Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia, as the case may be, the Estimated Purchase
Price with such payment to be made as provided herein and which Estimated
Purchase Price shall be subject to adjustment as provided herein; (d) at the
Closing, MEGTEC or any Designated Purchaser will assume and thereafter pay,
perform and discharge, as the case may be, the Assumed Obligations; (e) at the
Closing, MEGTEC will cause Xxxxxxx Printing to pay, perform and discharge the
Continuing Obligations; and (f) at the Closing, Xxxxxxx Enkel will consign to
MEGTEC the Consigned Inventories. Notwithstanding the consummation of such
transactions, (i) each of Xxxxxxx Enkel and Xxxxxxx Xxxx, as the case may be,
will retain all right, title and interest in and to the Excluded Assets owned by
it, (ii) Xxxxxxx Asia will acquire all right title and interest in and to the
Transferred Assets, (iii) each of Xxxxxxx Enkel and Xxxxxxx Xxxx will continue
to be, and will remain solely responsible for, the payment, performance and
discharge, as the case may be, of the Excluded Liabilities owing by it or to
which it is subject and (iv) Xxxxxxx Asia will accept sole responsibility for
the payment performance and discharge of the Indemnified Liabilities.
ARTICLE II: PURCHASE, SALE AND RELATED MATTERS
A. PURCHASE AND SALE OF CERTAIN ASSETS AND ASSUMPTION OF CERTAIN LIABILITIES OF
XXXXXXX ENKEL AND XXXXXXX XXXX.
SECTION 2.01. PURCHASE AND SALE OF PURCHASED ASSETS. Upon the terms and
subject to the conditions of this Agreement, at the Closing Time, MEGTEC and any
Designated Purchaser shall purchase from Xxxxxxx Enkel and
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Xxxxxxx Xxxx and each of Xxxxxxx Enkel and Xxxxxxx Xxxx shall sell, convey,
grant, transfer, assign and deliver the Purchased Assets owned by it to MEGTEC
or any Designated Purchaser, as the case may be, free and clear of any and all
Liens.
SECTION 2.02. PURCHASED ASSETS. "Purchased Assets" collectively means
all properties, assets and rights of Xxxxxxx Enkel and Xxxxxxx Xxxx (other than
only the Excluded Assets referred to in Section 2.03 hereof) of every nature,
kind and description, whether tangible or intangible, whether real, personal or
mixed, whether accrued, contingent or otherwise and in any such instance
including any of the foregoing which are used, held or available for use or
under development for use in the Roll Handling Business and whether now existing
or hereafter acquired and wherever located . The Purchased Assets include all of
Xxxxxxx Enkel's and Xxxxxxx Amal's right, title and interest in and to the
following:
(a) All fixed assets, including plant fixtures, machinery, equipment,
computers, gauges, furniture, office equipment, rolling stock, vehicles,
tooling, operating, factory and maintenance supplies, spare parts, stores,
component parts, spare parts, shipping and packaging supplies and other tangible
personal property, including all such properties and assets of Xxxxxxx Enkel and
Xxxxxxx Xxxx as have been fully depreciated or expensed and including, without
limitation, the owned land and buildings of Xxxxxxx Xxxx and such other items
listed in SCHEDULE 2.02(a) (collectively, the "Fixed Assets");
(b) Other than the Consigned Inventories of Xxxxxxx Enkel listed or
described in SCHEDULE 2.03(k), all raw materials, work-in-process and finished
goods inventories (collectively, the "Inventories");
(c) All rights under authorizations, approvals (including customers),
franchises, orders, consents, licenses, permits, registrations, waivers,
exemptions, abatements and certificates of or by any Governmental Authority and
all applications and renewals therefor or other rights arising or resulting from
any of the foregoing, including, without limitation, the items listed in
SCHEDULE 2.02(c) (collectively, the "Listed Permits") which are assignable by
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Xxxxxxx Enkel and Xxxxxxx Xxxx to MEGTEC or a Designated Purchaser hereunder;
(d) All rights under all Intellectual Property including, without
limitation, the items listed in SCHEDULE 2.02(d);
(e) All agreements and contracts with suppliers relating to the Roll
Handling Business, including, without limitation, all open purchase orders to
vendors and suppliers of Xxxxxxx Enkel and Xxxxxxx Xxxx relative to the Roll
Handling Business, certain of which are listed in SCHEDULE 2.02(e) and have been
entered into in the ordinary course of business of the Roll Handling Business
consistent with past practices (collectively, the "Supplier Contracts");
(f) All of Xxxxxxx Enkel's and Xxxxxxx Amal's orders from, commitments
to and contracts with customers, including, without limitation, all open
purchase orders from customers of the Roll Handling Business as well as all
outstanding proposals, quotations and bids (collectively, the "Customer
Contracts") certain of which are listed in SCHEDULE 2.02(f) and have been
entered into or extended in the ordinary course of business of the Roll Handling
Business consistent with past practices;
(g) Those executory contracts relating to the Roll Handling Business or
the Purchased Assets, including operating agreements, service and maintenance
agreements, licenses and other agreements, arrangements and understandings,
which are listed in SCHEDULE 2.02(g) (collectively, the "Other Contracts");
(h) All rights under those personal property leases, including vehicles
and equipment listed in SCHEDULE 2.02(h) (collectively, the "Personal Property
Leases");
(i) All rights under all trade accounts receivable (other than the
trade accounts receivable listed in SCHEDULE 2.03(j)), notes receivable,
security and other deposits, advance payments, prepayments and credits, whether
recorded or unrecorded, other than any of the foregoing due from Xxxxxxx
Technology or any of its Affiliates (collectively, the "Receivables");
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(j) All rights under any cause of action, judgment, right of recovery,
right of set-off, credit, rebate, indemnity or other claim against other
Persons, of whatever kind or nature, known or unknown, accrued or to accrue,
including, without limitation, all rights of rescission, replevin and
reclamation; all rights and claims in respect of past infringement or against
present and former employees, agents and consultants; all credits or rebates due
in respect of charges incurred, goods received or services rendered to Xxxxxxx
Enkel and Xxxxxxx Xxxx; and all rights under any express or implied warranties,
representations or guarantees made by suppliers, contractors or others having
business dealings with Xxxxxxx Enkel and Xxxxxxx Xxxx;
(k) The letters of credit and bank guarantees listed in SCHEDULE
2.02(k);
(l) Subject to Section 8.01 hereof, all Xxxxxxx Xxxx and Xxxxxxx Enkel
telephone numbers and websites;
(m) All properties, assets and rights reflected on the Interim Balance
Sheet or in the notes thereto to the extent such are in existence at the Closing
Time;
(n) All insurance proceeds or condemnation awards for any casualty,
loss, damages or taking of property occurring between the date of this Agreement
and the Closing Time (net of costs of collection and expenditures in connection
with preservation, repair, restoration and/or replacement);
(o) All prepaid deposits and expenses of Xxxxxxx Enkel and Xxxxxxx Xxxx
which would have an economic benefit to MEGTEC or any Designated Purchaser after
the Closing Time (collectively, the "Prepaids");
(p) Exclusive and transferrable royalty-free rights as relates to
Xxxxxxx Enkel and Xxxxxxx Xxxx in connection with the Roll Handling Business
with respect to the items of Intellectual Property which are used both in the
Roll Handling Business and by Xxxxxxx Technology or any of its Affiliates in
their respective businesses (other than Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx
Printing), including, without limitation, the items listed in SCHEDULE 2.02(p)
(collectively, the "Shared Intellectual Property");
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(q) All books, records, tapes, disks, files, plans, studies, reports,
manuals, handbooks, catalogs, brochures, correspondence and other materials,
whether in hard copy, electronic or any other form or media, including, without
limitation, any of the same pertaining to the Roll Handling Business, the
Assumed Obligations or the Purchased Assets, including accounting, sales, costs,
pricing, marketing, advertising, product literature, promotions, lists of
suppliers, lists of customers, personnel, human resources, inventory,
engineering, manufacturing, business plans and strategies and product
development files and documents (collectively, the "Business Records");
(r) The exclusive right of each of MEGTEC and any Designated Purchaser
to represent itself as carrying on the Roll Handling Business of Xxxxxxx Enkel
and Xxxxxxx Xxxx in continuation thereof as a going concern and all of the
goodwill associated therewith and all right, title and interest in and to the
names "Enkel" and "Amal" (which Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx
Technology will cease to use from and after the Closing Time and will change the
corporate name of Xxxxxxx Enkel to a name which does not include "Enkel" as soon
as possible after the Closing Time and change the corporate name of Xxxxxxx Xxxx
to a name which does not include "Amal" as soon as possible after the Closing
Time;
(s) The real estate leases of Xxxxxxx Xxxx listed in SCHEDULE 2.02(s)
(collectively, the "Real Estate Leases");
(t) All cash of Xxxxxxx Xxxx as of the Closing Time in the bank
accounts of Xxxxxxx Xxxx listed in SCHEDULE 2.02(t) (collectively, the "Cash");
(u) All employee benefit plans and all assets and records associated
with such employee benefit plans held by Xxxxxxx Xxxx, whether in trust or
otherwise; and
(v) Those additional rights, properties and assets of Xxxxxxx Xxxx and
Xxxxxxx Enkel, if any, listed in SCHEDULE 2.02(v).
SECTION 2.03. EXCLUDED ASSETS. Notwithstanding anything contained in
Section 2.02 hereof to the contrary, Xxxxxxx Enkel and Xxxxxxx Xxxx shall not
sell, convey, grant, transfer, assign or deliver to MEGTEC or any
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Designated Purchaser (or cause to be sold, conveyed, granted, transferred,
assigned or delivered), and MEGTEC or any Designated Purchaser shall not
purchase or otherwise acquire from Xxxxxxx Enkel or Xxxxxxx Xxxx, any of the
following assets (collectively, the "Excluded Assets"):
(a) All cash of Xxxxxxx Enkel;
(b) All minute books, stock records, corporation records, corporate
seals, treasury shares and tax returns and supporting schedules of Xxxxxxx Enkel
and Xxxxxxx Xxxx;
(c) All employee benefit plans and all assets and records associated
with such employee benefit plans held by Xxxxxxx Enkel, whether in trust or
otherwise;
(d) All bank accounts and lockboxes of Xxxxxxx Enkel;
(e) Subject to Section 8.01 hereof, all ownership interests in,
licenses and all other rights to use the word "Xxxxxxx" or the words "Xxxxxxx
Technology", including, without limitation, as a part of or in connection with
MEGTEC's or any Designated Purchaser's corporate name, d/b/a, sales and
marketing literature, business forms or otherwise;
(f) All claims for refunds of any Taxes or credits for any Taxes for
any periods prior to the Closing Time;
(g) Other than the owned real property of Xxxxxxx Xxxx listed in
SCHEDULE 2.02(a) and the Real Estate Leases of Xxxxxxx Xxxx listed in SCHEDULE
2.02(s), all owned real property, all leased or licensed real property, all
leasehold improvements and all other interests in real property of Xxxxxxx Enkel
and Xxxxxxx Xxxx, including, without limitation, all of the current lease
agreements for or otherwise pertaining to the Rockford Facility;
(h) All casualty, liability or other insurance policies owned by or
obtained on behalf of Xxxxxxx Enkel and Xxxxxxx Xxxx and all claims or rights
under any such insurance policies, except as provided in Sections 2.02(n) and
11.08 hereof;
(i) All of the capital stock of Xxxxxxx Americas Foreign Sales
Corporation (formerly known as Enkel Foreign Sales Corporation);
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(j) All rights under the trade accounts receivable, whether recorded or
unrecorded, which are either (i) listed in SCHEDULE 2.03(j), (ii) are more than
ninety (90) days past due as of the Closing Time or (iii) are due to any member
of the Roll Handling Group from Xxxxxxx Technology or any of its Affiliates as
of the Closing Time;
(k) Those inventories of Xxxxxxx Enkel listed or described in SCHEDULE
2.03(k) (collectively, the "Consigned Inventories"); and
(l) Those additional rights, properties and assets of Xxxxxxx Xxxx and
Xxxxxxx Enkel, if any, listed in SCHEDULE 2.03(l).
SECTION 2.04. ASSUMED OBLIGATIONS. Upon the terms and subject to the
conditions of this Agreement, at the Closing Time, MEGTEC and any Designated
Purchaser will assume and will thereafter pay, perform or discharge only the
following liabilities and obligations of Xxxxxxx Enkel and Xxxxxxx Xxxx relating
to the Roll Handling Business and no others (collectively, the "Assumed
Obligations"):
(a) All liabilities and obligations of Xxxxxxx Enkel and Xxxxxxx Xxxx
for payment of accounts payable of the Roll Handling Business (collectively, the
"Accounts Payable"), but only to the extent and in the amount included therefor
in the Final Statement and which amounts shall not include any amounts payable
to Xxxxxxx Technology or any of its Affiliates;
(b) All liabilities and obligations of Xxxxxxx Enkel and Xxxxxxx Xxxx
for payment of accrued expenses of the Roll Handling Business (collectively, the
"Accrued Expenses"), but only to the extent and in the amount included therefor
in the Final Statement and which amounts shall not include any amounts payable
to Xxxxxxx Technology or any of its Affiliates;
(c) Subject to Section 8.07 hereof, all liabilities and obligations of
Xxxxxxx Enkel and Xxxxxxx Xxxx under the express terms of the Customer
Contracts, Supplier Contracts, Other Contracts, Personal Property Leases and
Real Estate Leases, but only to the extent first becoming due after the Closing
Time but excluding, without limitation: (i) all liabilities and obligations
under any contract agreement or commitment which was not (but should have been)
listed
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in SCHEDULE 6.27(a), and (ii) all liabilities or obligations arising or
resulting from any occurrence, circumstance, event, condition or performance
(whether known or unknown) which occurs or exists prior to the Closing Time and
which constitutes, or which by the lapse of time or delivery of notice (or both)
would constitute a breach or default of any Customer Contracts, Supplier
Contracts, Other Contracts, Personal Property Leases or Real Estate Leases
(including, without limitation, any breach or default of any warranty (express
or implied) arising with respect to the subject matter of any Customer
Contracts, Supplier Contracts, Other Contracts, Personal Property Leases or Real
Estate Leases) or arising or resulting from the termination or cancellation
prior to the Closing Time of any Customer Contracts, Supplier Contracts, Other
Contracts, Personal Property Leases or Real Estate Leases, all of which
liabilities and obligations shall be Excluded Liabilities;
(d) Subject to Section 8.07 hereof, all liabilities and obligations of
each of Xxxxxxx Enkel and Xxxxxxx Xxxx to any of its customers to repair any
products or replace or refund the purchase price of any products, in any such
event, sold by Xxxxxxx Enkel and Xxxxxxx Xxxx in the ordinary course of the Roll
Handling Business prior to the Closing Time but excluding, without limitation,
all liabilities and obligations relating to or arising out of design defects as
well as all such liabilities and obligations (i) to any Person other than
Xxxxxxx Enkel's and Xxxxxxx Amal's immediate customers, (ii) for personal injury
or property damages, (iii) for consequential, incidental, liquidated, punitive,
indirect or special damages and similar damages, as well as lost profits, and
(iv) for any claim in excess of the purchase price of a product, all of which
liabilities and obligations as referred to in Sections 2.04(d)(i) through (iv)
hereof shall be Excluded Liabilities;
(e) All claims, demands, liabilities and obligations of any nature
whatsoever, and regardless of when any such claim is asserted or demand made,
which arise out of, relate to or which are based on any customer deposit
accepted by Xxxxxxx Enkel or Xxxxxxx Xxxx prior to the Closing Time. SCHEDULE
2.04(e) lists all customer deposits as of May 31, 2001 and their associated job
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number. SCHEDULE 2.04(e) will be updated by Xxxxxxx Technology as of the Closing
Time. Any customer deposits received by MEGTEC or the Designated Purchaser
subsequent to the Closing Time will be retained by MEGTEC or the Designated
Purchaser. Any customer deposits received by Xxxxxxx Enkel, Xxxxxxx Xxxx or
Xxxxxxx Technology prior to the Closing Time relating to the Roll Handling
Business and not included in the Final Statement, or any customer deposits
received by Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx Technology subsequent to the
Closing Time, will be remitted to MEGTEC without offset within five (5) Business
Days of receipt thereof and will clearly identify the job number to which the
customer deposit applies;
(f) All obligations and liabilities of MEGTEC and any Designated
Purchaser arising out of design defects in products manufactured, sold or
delivered by MEGTEC or a Designated Purchaser after the Closing Time, provided,
and if and only if, the existence of such design defect prior to the Closing
Time does not involve or relate to any misrepresentation or breach of warranty
by Xxxxxxx Technology or any of its Affiliates of this Agreement, including the
Schedules and Supplements hereto; and
(g) Subject to Section 9.02 hereof, those Pension Plans and Welfare
Plans of Xxxxxxx Xxxx listed in SCHEDULE 2.04(g).
SECTION 2.05. EXCLUDED LIABILITIES. Subject to Sections 8.07, 9.02 and
11.06 hereof, notwithstanding anything to the contrary in this Agreement,
including the Schedules, Supplements and Exhibits hereto, and any Additional
Documents except for the Assumed Obligations, each of MEGTEC and any Designated
Purchaser does not, directly or indirectly, assume and Xxxxxxx Enkel and Xxxxxxx
Xxxx shall, without any responsibility or liability of or recourse to MEGTEC,
any Designated Purchaser or any of their respective Affiliates, absolutely and
irrevocably retain and pay, perform and discharge, as the case may be, all
debts, liabilities and obligations of any nature of Xxxxxxx Enkel and Xxxxxxx
Xxxx (and Xxxxxxx Technology and its Affiliates relating to Xxxxxxx Enkel and
Xxxxxxx Xxxx) or claims of such liability or obligation, whether absolute,
contingent or otherwise and whether foreseen, unforeseen, accrued,
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unaccrued, known, unknown, liquidated or unliquidated, matured or unmatured, now
existing or which may arise in the future, and whether or not arising out of or
relating either directly or indirectly to Xxxxxxx Enkel or Xxxxxxx Xxxx in
connection with the Roll Handling Business, and regardless of whether such is
made, claimed or asserted prior to or after the Closing Time, including, without
limiting the generality of the foregoing, any liability, obligation or claim
arising out of, relating to or resulting from:
(a) Except for the Accounts Payable referred to in Section 2.04(a)
hereof, all other trade and other accounts payable and including all amounts
payable to Xxxxxxx Technology or any of its Affiliates;
(b) Except for the Accrued Expenses referred to in Section 2.04(b)
hereof, all other accrued expenses and including all amounts payable to Xxxxxxx
Technology or any of its Affiliates;
(c) Any obligation or liability pursuant to any of the lease agreements
to which Xxxxxxx Enkel is a party pertaining to or otherwise relating to the
Rockford Facility and, except for the Real Estate Leases listed in SCHEDULE
2.02(s), any other lease agreements to which Xxxxxxx Xxxx is a party;
(d) All obligations with respect to checks of Xxxxxxx Enkel and Xxxxxxx
Xxxx which are at any time outstanding;
(e) Any injury to or disease or death of any person or damage to or
loss of any property to the extent resulting from or arising out of or any act
or omission prior to the Closing Time by Xxxxxxx Enkel, Xxxxxxx Xxxx or any of
their respective Affiliates and those for whom Xxxxxxx Enkel or Xxxxxxx Xxxx is
responsible regardless of whether such injury, disease, death, damage or loss
occurs prior to, at or after the Closing Time and whether based on negligence,
breach of warranty, breach of contract, products liability, strict liability,
workers' compensation or any other theory;
(f) Any violation prior to the Closing Time by Xxxxxxx Enkel or Xxxxxxx
Xxxx of any Legal Requirement, any Permit, any Order or the requirements of any
Governmental Authority, including Environmental Laws;
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(g) Subject to Section 9.02 hereof, any qualified or nonqualified,
funded or nonfunded pension, profit sharing, health, welfare, medical insurance
or other employee benefit plan or arrangement established, participated in, or
maintained by Xxxxxxx Enkel including, without limitation, severance
entitlements;
(h) Any federal, state, local, foreign or other Taxes, including,
without limitation, any related penalties or interest except only to the extent
included in Accrued Expenses in the Final Statement;
(i) Any infringement or other violation of Intellectual Property rights
of any Person arising or resulting from any act or omission by Xxxxxxx Enkel,
Xxxxxxx Xxxx or any of their respective Affiliates;
(j) All liabilities and obligations with respect to insurance coverage
obtained by, or in conjunction with, Xxxxxxx Enkel or Xxxxxxx Xxxx;
(k) All debts, liabilities, obligations and indebtedness for money
borrowed by Xxxxxxx Enkel and Xxxxxxx Xxxx or any of their respective
Affiliates, including, without limitation, the indebtedness payable to the
lenders of Xxxxxxx Enkel, Xxxxxxx Xxxx or any of their respective Affiliates;
(l) All liabilities and obligations for consequential, incidental,
punitive, indirect, special and liquidated and similar damages as well as lost
profits and other monetary amounts (other than the monetary amounts associated
with the costs of repair or replacement, subject to Section 8.07 hereof) due to
customers of Xxxxxxx Enkel or Xxxxxxx Xxxx or any other Persons in connection
with the Roll Handling Business with respect or related to shortages and/or
defects in goods and equipment delivered to customers or services provided to
customers, or goods and equipment in transit to customers, in any such case,
prior to the Closing Time in connection with the replacement and/or repair of
goods and equipment and/or services, whether pursuant to:
(i) product warranties extended by Xxxxxxx Enkel or Xxxxxxx
Xxxx; or
(ii) product warranties or obligations implied or provided by
any Legal Requirement including by operation of law, and whether or not such
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involve any misrepresentation or breach of warranty by Xxxxxxx Enkel or Xxxxxxx
Xxxx of this Agreement;
(m) All liabilities and obligations of Xxxxxxx Enkel and Xxxxxxx Xxxx
arising or incurred in connection with the negotiation, preparation and
execution of this Agreement and the Additional Documents and the transactions
contemplated hereby and thereby and fees and expenses of Xxxxxxx Enkel's,
Xxxxxxx Amal's or Xxxxxxx Technology's counsel, accountants and other experts,
including X.X. Xxxxxxxxxx & Co., Inc.;
(n) All liabilities and obligations, including costs, expenses,
damages, fines, awards and penalties and settlements with respect to Proceedings
arising from or relating to events occurring prior to or conditions existing at
the Closing Time and whether or not disclosed in the Schedules or Supplements to
this Agreement and whether asserted prior to or after the Closing Time, as well
as all liabilities and obligations of Xxxxxxx Enkel or Xxxxxxx Xxxx which
violate any representation, warranty, covenant or agreement of Xxxxxxx Enkel or
Xxxxxxx Xxxx (or of Xxxxxxx Technology related to Xxxxxxx Enkel or Xxxxxxx Xxxx)
contained herein, whether or not included in the Financial Statements;
(o) All claims, demands, liabilities and obligations of any nature
whatsoever and regardless of when such claim is asserted which arise out of,
relate to or which are based on events occurring or conditions existing prior to
the Closing Time and which relate to or otherwise arise out of goods and
equipment sold or services performed by Xxxxxxx Enkel and Xxxxxxx Xxxx prior to
the Closing Time, including design defects, whether founded upon negligence,
breach of warranty, strict liabilities in tort and/or any and all other legal,
equitable or other theories, seeking, in each such case, compensation or
recovery for, or relating to, injury to person or damage to property whether
such injury or damage occurs prior to or after the Closing Time;
(p) All claims, demands, obligations and liabilities including cost and
expense of defense and regardless of when such claim is asserted, whether
arising out of, based upon or related to workers' compensation or employer's
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liability claims, negligence, strict liability in tort and/or any and all other
legal, equitable or other theories seeking compensation and/or recovery and
arising out of or relating to injuries and occupational diseases sustained by
employees of Xxxxxxx Enkel and Xxxxxxx Xxxx prior to the Closing Time, as well
as exposure to workplace chemicals, substances and conditions prior to Closing
Time;
(q) All liabilities and obligations of Xxxxxxx Enkel or Xxxxxxx Xxxx
accruing through the Closing Time relating to breaches or defaults by Xxxxxxx
Enkel or Xxxxxxx Xxxx, as the case may be, pursuant to the terms and conditions
of the Customer Contracts (subject to Section 8.07 hereof), Supplier Contracts,
Other Contracts and Personal Property Leases and Real Estate Leases assigned to
MEGTEC or any Designated Purchaser at the Closing;
(r) All claims, demands, liabilities and obligations of whatever kind
or nature in connection with the conduct of any and all businesses of Xxxxxxx
Enkel or Xxxxxxx Xxxx other than the Roll Handling Business;
(s) Subject to Section 9.02 hereof, all claims, demands, liabilities
and obligations for claims for severance and termination pay and for payments in
lieu of notice of termination made by any employee of Xxxxxxx Enkel or Xxxxxxx
Xxxx:
(i) as a consequence of the termination of employment by
Xxxxxxx Enkel or Xxxxxxx Xxxx of such employee prior to, on or after the Closing
Time;
(ii) who is offered employment by MEGTEC or any Designated
Purchaser in accordance with Section 9.01 hereof and whether or not such
employee accepts or rejects such offer; or
(iii) who is not required to be offered employment by MEGTEC
or any Designated Purchaser in accordance with Section 9.01 hereof;
(t) Subject to Section 9.02 hereof, as well as Section 2.04(g) hereof
in the case of Xxxxxxx Xxxx, all liabilities, debts, obligations and claims of
employees and former employees of Xxxxxxx Enkel or Xxxxxxx Xxxx or their
beneficiaries, heirs and representatives on account of wages, salaries, vacation
pay, bonuses, commissions, dental, life insurance, health, medical, welfare and
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any and all other remuneration, employee compensation and entitlement plans of
Xxxxxxx Enkel or Xxxxxxx Xxxx (or of Xxxxxxx Technology related to Xxxxxxx Enkel
or Xxxxxxx Xxxx) of any kind and nature whatsoever;
(u) All liabilities imposed under law owing to employees of Xxxxxxx
Enkel and Xxxxxxx Xxxx at the Closing Time relating to health or safety arising
out of, relating to or resulting from any act or event occurring prior to the
Closing Time;
(v) All acts or omissions by employees, representatives, officers,
directors, agents, contractors, transporters or any person for whose acts or
omissions Xxxxxxx Enkel or Xxxxxxx Xxxx is responsible in connection with the
production, generation, storage, treatment, transportation, disposal, emission
or other handling or disposition of any Hazardous Substances, including any of
the foregoing at the Rockford Facility, the Amal Facility or any Former
Facility;
(w) Any emission, discharge, dispersal, disposal, seepage, release or
escape of any Hazardous Substances produced, generated, stored, treated,
utilized, transported or disposed of by or on behalf of Xxxxxxx Enkel or Xxxxxxx
Xxxx, including their employees, representatives, officers, directors, agents,
contractors, transporters or any person for which acts or omissions Xxxxxxx
Enkel or Xxxxxxx Xxxx is responsible and including any of the foregoing at the
Rockford Facility, the Amal Facility or any Former Facility;
(x) Any release of Hazardous Substances into the air, surface water,
groundwater, soil or real property by Xxxxxxx Enkel or Xxxxxxx Xxxx, including
their employees, representatives, officers, directors, agents, contractors,
transporters or any person for which acts or omissions Xxxxxxx Enkel or Xxxxxxx
Xxxx is responsible, and whether at the Rockford Facility, Amal Facility, any
Former Facility or elsewhere;
(y) Those claims, demands, debts, obligations and liabilities arising
out of or related to those matters specifically designated as "Excluded
Liabilities" in the Schedules and Supplements to this Agreement; or
(z) To the extent not covered in clauses (a) through (y) in this
Section 2.05, any and all liability or obligation arising out of or resulting
from: (i)
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acts, omissions, events, occurrences, circumstances or transactions of
whatsoever type or nature occurring or existing prior to the Closing Time, or
(ii) the ownership, operation, use, or possession of any assets, properties or
rights used or held for use by Xxxxxxx Enkel or Xxxxxxx Xxxx prior to the
Closing Time, or (iii) the condition of any of the Purchased Assets prior to the
Closing Time, or (iv) any design defects in the Xxxxxxx Enkel or Xxxxxxx Xxxx
product lines regarding goods manufactured and sold by Xxxxxxx Enkel or Xxxxxxx
Xxxx prior to the Closing Time, or (v) the ownership or operation by Xxxxxxx
Enkel or Xxxxxxx Xxxx of any business or operations other than the Roll Handling
Business.
For purposes of this Agreement, "Excluded Liabilities" collectively
means and shall be deemed to include all liabilities and obligations described
in this Section 2.05 and, for purposes of this Agreement, no such liability or
obligation shall be deemed a liability or obligation of MEGTEC or any Designated
Purchaser even if by operation of law any such liability or obligation is also
or becomes a liability or obligation of MEGTEC or any Designated Purchaser. The
matters described in this Section 2.05 are enumerations for the avoidance of
doubt and are not intended to narrow the scope of Excluded Liabilities.
SECTION 2.06. ASSIGNMENT OF CONTRACTS.
(a) Anything in this Agreement to the contrary notwithstanding, this
Agreement shall not constitute a sale, assignment, transfer or conveyance (a
"Transfer") or an agreement to Transfer any Customer Contracts, Supplier
Contracts, Other Contracts, Real Estate Leases or Personal Property Leases or
any claim, right or benefit arising thereunder or resulting therefrom
(collectively, the "Interests") if an attempted Transfer thereof, without the
Consent of a third party, would constitute a breach or other contravention
thereof, be ineffective or in any way adversely affect any rights thereunder,
unless and until such Interest can be effectively Transferred without such
breach, contravention or adverse effect, at which time each such Interest shall
be deemed to be so Transferred. Until such Transfer, all such Interest shall be
held in trust by Xxxxxxx Enkel or
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Xxxxxxx Xxxx, as the case may be, for the sole benefit of MEGTEC or any
Designated Purchaser.
(b) Xxxxxxx Enkel or Xxxxxxx Xxxx, as the case may be, shall use all
reasonable efforts to promptly obtain all necessary Consents to Transfer, free
and clear of all Liens, of all such Interests and Xxxxxxx Enkel or Xxxxxxx Xxxx,
as the case may be, shall pay and discharge all costs of obtaining any such
Consent whether before or after the Closing Time.
(c) To the extent any Consents necessary to Transfer any Interest have
not been obtained or are not in effect as of the Closing Time, Xxxxxxx Enkel and
Xxxxxxx Xxxx shall promptly notify MEGTEC of each such occurrence, and Xxxxxxx
Enkel or Xxxxxxx Xxxx, as the case may be, and MEGTEC and any Designated
Purchaser shall, during the remaining term of such Interest, use all reasonable
efforts to (i) cooperate in any reasonable and lawful arrangements designed to
provide the benefits of such Interest to MEGTEC or such Designated Purchaser, in
which case MEGTEC or such Designated Purchaser shall pay or satisfy the
corresponding obligations for the enjoyment of such benefits to the extent
MEGTEC or such Designated Purchaser would have been responsible therefor if such
Consent had been obtained and such Interest had been transferred to MEGTEC or
such Designated Purchaser; and (ii) enforce, at the request of MEGTEC or such
Designated Purchaser, any rights of Xxxxxxx Enkel or Xxxxxxx Xxxx arising from
such Interest against the issuer thereof or the other party or parties thereto
(including the right to elect to terminate any such Interest in accordance with
the terms thereof with the written consent of MEGTEC).
(d) Nothing in this Section 2.06 shall be deemed a waiver by MEGTEC or
any Designated Purchaser of its right to receive at the Closing Time an
effective Transfer of all of the Purchased Assets nor shall this Section 2.06 be
deemed to constitute an agreement to exclude any asset, property or right from
the Purchased Assets.
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B. PURCHASE AND SALE OF SHARES OF CS PRINTING.
SECTION 2.07. TRANSFERRED ASSETS. Notwithstanding anything contained in
Section 2.09 hereof to the contrary, prior to or at the Closing Time, Xxxxxxx
Printing shall assign or transfer to Xxxxxxx Technology or Xxxxxxx Asia or any
of their respective Affiliates all of the following assets (collectively, the
"Transferred Assets")
(a) All claims for refunds of any Taxes or credits for any
Taxes for all periods prior to the Closing Time;
(b) Except for the insurance policy referred to in SCHEDULE
2.09(v), all other casualty, liability or other insurance policies owned by or
obtained on behalf of Xxxxxxx Printing and all claims or rights under any such
insurance policies except as provided in Sections 2.09(n) and 11.08 hereof;
(c) Subject to Section 8.01 hereof, all ownership interests
in, licenses and all other rights to use the word "Xxxxxxx", including, without
limitation, as a part of or in connection with MEGTEC's or any Designated
Purchaser's corporate name, d/b/a, sales and marketing literature, business
forms or otherwise;
(d) All rights under the trade accounts receivable, whether
recorded or unrecorded, which are either (i) listed in SCHEDULE 2.07(d), (ii)
are more than ninety (90) days past due as of the Closing Time or (iii) are due
to any member of the Roll Handling Group from Xxxxxxx Technology or any of its
Affiliates as of the Closing Time; and
(e) Those additional rights, properties and assets of Xxxxxxx
Printing, if any, listed in SCHEDULE 2.07(e).
SECTION 2.08. PURCHASE AND SALE OF SHARES. Upon the terms and
subject to the conditions of this Agreement, at the Closing Time, MEGTEC or any
Designated Purchaser shall purchase from Xxxxxxx Asia and Xxxxxxx Asia shall
sell, convey, grant, transfer, assign and deliver the CS Printing Shares to
MEGTEC or any Designated Purchaser, free and clear of any and all Liens.
SECTION 2.09. RETAINED ASSETS. Retained Assets means all properties,
assets and rights of Xxxxxxx Printing (other than only the Transferred
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Assets referred to in Section 2.07 hereof) of every nature, kind and
description, whether tangible or intangible, whether real personal or mixed,
whether accrued, contingent or otherwise and in any such instance including any
of the foregoing which are used, held or available for use or under development
for use in the Roll Handling Business and whether now existing or hereafter
acquired and wherever located (collectively, the "Retained Assets"). The
Retained Assets include all of Xxxxxxx Printing's right, title and interest in
and to the following:
(a) All fixed assets, including owned land and buildings,
improvements, plant fixtures, machinery, equipment, computers, gauges,
furniture, office equipment, rolling stock, vehicles, tooling, operating,
factory and maintenance supplies, spare parts, stores, component parts, spare
parts, shipping and packaging supplies and other tangible personal property,
including all such properties and assets of Xxxxxxx Printing as have been fully
depreciated or expensed and including, without limitation, the items listed in
SCHEDULE 2.09(a) (collectively, the "Retained Fixed Assets");
(b) All raw materials, work-in-process and finished goods
inventories (collectively, the "Retained Inventories");
(c) All rights under authorizations, approvals (including
customers), franchises, orders, consents, licenses, permits, registrations,
waivers, exemptions, abatements and certificates of or by any Governmental
Authority and all applications and renewals therefor and all air emission
credits or other rights arising or resulting from any of the foregoing,
including, without limitation, the items listed in SCHEDULE 2.09(c)
(collectively, the "Retained Listed Permits");
(d) All rights under all Intellectual Property including,
without limitation, the items listed in SCHEDULE 2.09(d);
(e) All agreements and contracts with suppliers relating to
the Roll Handling Business, including, without limitation, all open purchase
orders to vendors and suppliers of Xxxxxxx Printing relative to the Roll
Handling Business, certain of which are listed in SCHEDULE 2.09(e) and have been
entered into in the
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ordinary course of business of the Roll Handling Business consistent with past
practices (collectively, the "Retained Supplier Contracts");
(f) All of Xxxxxxx Printing's orders from, commitments to and
contracts with customers, including, without limitation, all open purchase
orders from customers of the Roll Handling Business as well as all outstanding
proposals, quotations and bids (collectively, the "Retained Customer Contracts")
certain of which are listed in SCHEDULE 2.09(f) and have been entered into or
extended in the ordinary course of business of the Roll Handling Business
consistent with past practices;
(g) Those executory contracts relating to the Roll Handling
Business or the Retained Assets, including any operating agreements, service and
maintenance agreements, maintenance agreements, licenses and other agreements,
arrangements and understandings, which are listed in SCHEDULE 2.09(g)
(collectively, the "Retained Other Contracts");
(h) All rights under those real property leases and personal
property leases, including leases, land, buildings, vehicles and equipment, all
of which are listed in SCHEDULE 2.09(h) (collectively, the "Retained Leases");
(i) All rights under all trade accounts receivable (other than
the trade accounts receivable listed in SCHEDULE 2.07(d)), notes receivable,
security and other deposits, advance payments, prepayments and credits, whether
recorded or unrecorded, other than any of the foregoing due from Xxxxxxx
Technology or any of its Affiliates (collectively, the "Retained Receivables");
(j) All rights under any cause of action, judgment, right of
recovery, right of set-off, credit, rebate, indemnity or other claim against
other Persons, of whatever kind or nature, known or unknown, accrued or to
accrue, including, without limitation, all rights of rescission, replevin and
reclamation; all rights and claims in respect of past infringement or against
present and former employees, agents and consultants; all credits or rebates due
in respect of charges incurred, goods received or services rendered to Xxxxxxx
Printing; and all rights under any express or implied warranties,
representations or guarantees
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made by suppliers, contractors or others having business dealings with Xxxxxxx
Printing;
(k) The letters of credit and bank guarantees listed in
SCHEDULE 2.09(k);
(l) All Xxxxxxx Printing telephone numbers and websites;
(m) All properties, assets and rights reflected on the Interim
Balance Sheet or in the notes thereto to the extent such are in existence at the
Closing Time;
(n) All insurance proceeds or condemnation awards for any
casualty, loss, damages or taking of property occurring between the date of this
Agreement and the Closing Time (net of costs of collection and expenditures in
connection with preservation, repair, restoration and/or replacement);
(o) All prepaid deposits and expenses of Xxxxxxx Printing
which would have an economic benefit to Xxxxxxx Printing after the Closing Time
(collectively, the "Retained Prepaids");
(p) Exclusive and transferrable royalty-free rights as relate
to Xxxxxxx Printing in connection with the Roll Handling Business with respect
to the items of Intellectual Property which are used both in the Roll Handling
Business and by Xxxxxxx Technology and Xxxxxxx Asia or any of their Affiliates
in their respective businesses other than Xxxxxxx Printing and the Roll Handling
Business, including, without limitation, the items listed in SCHEDULE 2.09(p)
(collectively, the "Retained Shared Intellectual Property");
(q) All books, records, tapes, disks, files, plans, studies,
reports, manuals, handbooks, catalogs, brochures, correspondence and other
materials, whether in hard copy, electronic or any other form or media,
including, without limitation, any of the same pertaining to the Roll Handling
Business, the Continuing Obligations or the Retained Assets, including
accounting, sales, costs, pricing, marketing, advertising, product literature,
promotions, lists of suppliers, lists of customers, personnel, human resources,
inventory, engineering, manufacturing, business plans and strategies and product
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development files and documents (collectively, the "Retained Business Records");
(r) The exclusive right of MEGTEC to represent itself as
carrying on the Roll Handling Business of Xxxxxxx Printing in continuation
thereof as a going concern and all of the goodwill associated therewith;
(s) All cash of Xxxxxxx Printing (collectively, the "Retained
Cash");
(t) All employee benefit plans and all assets and records
associated with such employee benefit plans held by Xxxxxxx Printing, whether in
trust or otherwise;
(u) All bank accounts and lockboxes of Xxxxxxx Printing;
(v) The insurance policy of Xxxxxxx Printing listed in
SCHEDULE 2.09(v); and
(w) Those additional rights, properties and assets of Xxxxxxx
Printing, if any, listed in SCHEDULE 2.09(w).
SECTION 2.10. CONTINUING OBLIGATIONS. Upon the terms and subject to the
conditions of this Agreement, from and after the Closing Time, MEGTEC or any
Designated Purchaser, as the case may be, will cause Xxxxxxx Printing to pay,
perform or discharge only the following liabilities and obligations of Xxxxxxx
Printing relating to the Roll Handling Business and no others (collectively, the
"Continuing Obligations"):
(a) All liabilities and obligations of Xxxxxxx Printing for
payment of accounts payable of the Roll Handling Business (collectively, the
"Retained Accounts Payable"), but only to the extent and in the amount included
therefor in the Final Statement and which amounts shall not include any amounts
payable to Xxxxxxx Technology or any of its Affiliates;
(b) All liabilities and obligations of Xxxxxxx Printing for
payment of accrued expenses of the Roll Handling Business (collectively, the
"Retained Accrued Expenses"), but only to the extent and in the amount included
therefor in the Final Statement and which amounts shall not include any amounts
payable to Xxxxxxx Technology or any of its Affiliates;
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(c) Subject to Section 8.07 hereof, all liabilities and
obligations of Xxxxxxx Printing under the express terms of the Retained Customer
Contracts, Retained Supplier Contracts, Retained Other Contracts and Retained
Leases, but only to the extent first becoming due after the Closing Time but
excluding, without limitation: (i) all liabilities and obligations under any
contract agreement or commitment which was not (but should have been) listed on
SCHEDULE 6.27(a), and (ii) all liabilities or obligations arising or resulting
from any occurrence, circumstance, event, condition or performance (whether
known or unknown) which occurs or exists prior to the Closing Time and which
constitutes, or which by the lapse of time or delivery of notice (or both) would
constitute a breach or default of any Retained Customer Contracts, Retained
Supplier Contracts, Retained Other Contracts or Retained Leases (including,
without limitation, any breach or default of any warranty (express or implied)
arising with respect to the subject matter of any Retained Customer Contracts,
Retained Supplier Contracts, Retained Other Contracts or Retained Leases) or
arising or resulting from the termination or cancellation prior to the Closing
Time of any Retained Customer Contracts, Retained Supplier Contracts, Retained
Other Contracts or Retained Leases, all of which liabilities and obligations
shall be Indemnified Liabilities;
(d) Subject to Section 8.07 hereof, all liabilities and
obligations of Xxxxxxx Printing to its immediate customers to repair any
products or replace or refund the purchase price of any products, in any such
event, sold by Xxxxxxx Printing in the ordinary course of the Roll Handling
Business prior to the Closing Time but excluding, without limitation,
liabilities and obligations relating to or arising out of design defects, as
well as all such liabilities and obligations (i) to any Person other than
Xxxxxxx Printing's immediate customers, (ii) for personal injury or property
damages, (iii) for consequential incidental, liquidated, punitive, indirect or
special damages and similar damages, as well as lost profits, and (iv) for any
claim in excess of the purchase price of a product, all of which liabilities and
obligations as referred to in Sections 2.10(d)(i) through (iv) hereof shall be
Indemnified Liabilities;
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(e) All claims, demands, liabilities and obligations of any
nature whatsoever, and regardless of when any such claim is asserted or demand
made, which arise out of, relate to or which are based on any customer deposit
accepted by Xxxxxxx Printing prior to the Closing Time. SCHEDULE 2.10(e) lists
all customer deposits as of May 31, 2001 and their associated job number.
SCHEDULE 2.10(e) will be updated by Xxxxxxx Technology as of the Closing Time.
Any customer deposits received by Xxxxxxx Printing subsequent to the Closing
Time will be retained by Xxxxxxx Printing. Any customer deposits received by
Xxxxxxx Technology or Xxxxxxx Asia prior to the Closing Time relating to or
arising out of the Roll Handling Business and not included in the Final
Statement, or any customer deposits received by Xxxxxxx Technology or Xxxxxxx
Asia subsequent to the Closing Time, will be remitted to MEGTEC without offset
within five (5) Business Days and will clearly identify the job number to which
the customer deposit applies; and
(f) All obligations and liabilities of Xxxxxxx Printing
arising out of design defects in products manufactured, sold or delivered by
Xxxxxxx Printing after the Closing Time, provided, and if and only if, the
existence of such design defect prior to the Closing Time does not involve or
relate to any misrepresentation or breach of warranty by Xxxxxxx Technology or
any of its Affiliates of this Agreement, including the Schedules and Supplements
hereto.
SECTION 2.11. INDEMNIFIED LIABILITIES. Subject to Sections 8.07, 9.02
and 11.06 hereof, notwithstanding anything to the contrary in this Agreement,
including the Schedules, Supplements and Exhibits hereto and any Additional
Documents, except for the Continuing Obligations, CS Printing and Xxxxxxx
Printing do not, directly or indirectly, assume or retain and Xxxxxxx Technology
or Xxxxxxx Asia shall, without any responsibility or liability of or recourse to
CS Printing, Xxxxxxx Printing, MEGTEC, any Designated Purchaser or any of their
respective Affiliates, absolutely and irrevocably retain and pay, perform and
discharge, as the case may be, all debts, liabilities and obligations of any
nature of CS Printing and Xxxxxxx Printing (and Xxxxxxx Technology or Xxxxxxx
Asia and their respective Affiliates relating to CS Printing or Xxxxxxx
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Printing), as the case may be, or claims of such liability or obligation,
whether absolute, contingent or otherwise and whether foreseen, unforeseen,
accrued, unaccrued, known, unknown, liquidated or unliquidated, matured or
unmatured, now existing or which may arise in the future, and whether or not
arising out of or relating either directly or indirectly to CS Printing or
Xxxxxxx Printing in connection with the Roll Handling Business, and regardless
of whether such is made, claimed or asserted prior to or after the Closing Time,
including, without limiting the generality of the foregoing, any liability,
obligation or claim arising out of, relating to or resulting from:
(a) Except for the Retained Accounts Payable referred to in
Section 2.10(a) hereof, all other trade and other accounts payable and including
all amounts payable to Xxxxxxx Technology or any of its Affiliates;
(b) Except for the Retained Accrued Expenses referred to in
Section 2.10(b) hereof, all other accrued expenses and including all amounts
payable to Xxxxxxx Technology or any of its Affiliates;
(c) All obligations with respect to checks of CS Printing and
Xxxxxxx Printing which are issued and outstanding as of the Closing Time;
(d) Any injury to or disease or death of any person or damage
to or loss of any property to the extent resulting from or arising out of or any
act or omission prior to the Closing Time by CS Printing or Xxxxxxx Printing and
those for whom CS Printing or Xxxxxxx Printing is responsible to the extent such
injury, disease, death, damage or loss occurs prior to the Closing Time and
regardless of whether based on negligence, breach of warranty, breach of
contract, products liability, strict liability, workers' compensation or any
other theory;
(e) Any violation prior to the Closing Time by CS Printing or
Xxxxxxx Printing of any Legal Requirement, any Permit, any Order or the
requirements of any Governmental Authority, including Environmental Laws;
(f) Subject to Sections 2.09(t) and 9.02 hereof, any qualified
or nonqualified, funded or nonfunded pension, profit sharing, health, welfare,
medical insurance or other employee benefit plan or arrangement established,
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participated in, or maintained prior to the Closing Time by CS Printing or
Xxxxxxx Printing including, without limitation, severance entitlements;
(g) Any federal, state, local or other Taxes, including,
without limitation, any related penalties or interest except only to the extent
included in Retained Accrued Expenses in the Final Statement;
(h) Any infringement or other violation of Intellectual
Property rights of any Person arising or resulting from any act or omission
prior to Closing by CS Printing or Xxxxxxx Printing;
(i) All liabilities and obligations with respect to insurance
coverage obtained by, or in conjunction with, Xxxxxxx Asia;
(j) All debts, liabilities, obligations and indebtedness for
money borrowed by Xxxxxxx Asia, CS Printing and Xxxxxxx Printing or any of their
respective Affiliates, including, without limitation, the indebtedness payable
to the lenders of CS Printing, Xxxxxxx Printing or any of their respective
Affiliates;
(k) All liabilities and obligations for consequential,
incidental, punitive, indirect, special and liquidated and similar damages as
well as lost profits and other monetary amounts (other than the monetary amounts
associated with the costs of repair or replacement, subject to Section 8.07
hereof) due to customers of Xxxxxxx Printing in connection with the Roll
Handling Business with respect or related to shortages and/or defects in goods
and equipment delivered to customers or services provided to customers, or goods
and equipment in transit to customers, in any such case, prior to the Closing
Time in connection with the replacement and/or repair of goods and equipment
and/or services, whether pursuant to:
(i) product warranties extended by Xxxxxxx Printing;
or
(ii) product warranties or obligations implied or
provided by any Legal Requirement including by operation of law, and whether or
not such involve any misrepresentation or breach of warranty by Xxxxxxx
Technology or Xxxxxxx Asia of this Agreement;
(l) All liabilities and obligations of CS Printing and Xxxxxxx
Printing arising or incurred in connection with the negotiation, preparation and
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execution of this Agreement and the Additional Documents and the transactions
contemplated hereby and thereby and fees and expenses of Xxxxxxx Technology's,
Xxxxxxx Asia's, CS Printing's or Xxxxxxx Printing's counsel, accountants and
other experts, including X.X. Xxxxxxxxxx & Co., Inc.;
(m) All liabilities and obligations, including costs,
expenses, damages, fines, awards and penalties and settlements with respect to
Proceedings arising from or relating to events occurring prior to or conditions
existing at the Closing Time and whether or not disclosed in the Schedules or
Supplements to this Agreement and whether asserted prior to or after the Closing
Time, as well as all liabilities and obligations of CS Printing or Xxxxxxx
Printing which violate any representation, warranty, covenant or agreement of CS
Printing or Xxxxxxx Printing (or of Xxxxxxx Technology or Xxxxxxx Asia related
to CS Printing or Xxxxxxx Printing) contained herein, whether or not included in
the Financial Statements;
(n) All claims, demands, liabilities and obligations of any
nature whatsoever and regardless of when such claim is asserted which arise out
of, relate to or which are based on events occurring or conditions existing
prior to the Closing Time and which relate to or otherwise arise out of goods
and equipment sold or services performed by Xxxxxxx Printing prior to the
Closing Time, including design defects, whether founded upon negligence, breach
of warranty, strict liability in tort and/or any and all other legal, equitable
or other theories, seeking, in each such case, compensation or recovery for, or
relating to injury to person or damage to property whether such injury or damage
occurs prior to or after the Closing Time;
(o) All claims, demands, obligations and liabilities including
cost and expense of defense and regardless of when such claim is asserted,
whether arising out of, based upon or related to workers' compensation or
employer's liability claims, negligence, strict liability in tort and/or any and
all other legal, equitable or other theories seeking compensation and/or
recovery and arising out of or relating to injuries and occupational diseases
sustained by employees of
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Xxxxxxx Printing prior to the Closing Time, as well as exposure to workplace
chemicals, substances and conditions prior to Closing Time;
(p) All liabilities and obligations of Xxxxxxx Printing
accruing through the Closing Time relating to breaches or defaults by Xxxxxxx
Printing prior to the Closing Time pursuant to the terms and conditions of the
Retained Customer Contracts (subject to Section 8.07 hereof), Retained Supplier
Contracts, Retained Other Contracts and Retained Leases;
(q) All claims, demands, liabilities and obligations of
whatever kind or nature in connection with the conduct of any and all businesses
of CS Printing or Xxxxxxx Printing other than the Roll Handling Business;
(r) Subject to Section 9.02 hereof, all claims, demands,
liabilities and obligations for claims for severance and termination pay and for
payments in lieu of notice of termination made by any employee of Xxxxxxx
Printing:
(i) as a consequence of the termination of employment
by Xxxxxxx Printing of such employee prior to, on or immediately following the
Closing Time; or
(ii) who is offered continued employment following
the Closing in accordance with Section 9.01 hereof and whether or not such
employee accepts or rejects such offer;
(s) Subject to Section 9.02 hereof, all liabilities, debts,
obligations and claims of employees and former employees of Xxxxxxx Printing or
their beneficiaries, heirs and representatives on account of wages, salaries,
vacation pay, bonuses, commissions, dental, life insurance, health, medical,
welfare and any and all other remuneration, employee compensation and
entitlement plans of Xxxxxxx Printing (or of Xxxxxxx Technology or Xxxxxxx Asia
related to Xxxxxxx Printing) of any kind and nature whatsoever;
(t) All liabilities imposed under law owing to employees of
Xxxxxxx Printing at the Closing Time relating to health or safety arising out
of, relating to or resulting from any act or event occurring prior to the
Closing Time;
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(u) All acts or omissions prior to Closing Time by employees,
representatives, officers, directors, agents, contractors, transporters or any
person for whose acts or omissions Xxxxxxx Printing are responsible in
connection with the production, generation, storage, treatment, transportation,
disposal, emission or other handling or disposition of any Hazardous Substances
including any of the foregoing at the Shanghai Facility or any Former Facility;
(v) Any emission, discharge, dispersal, disposal, seepage,
release or escape of any Hazardous Substances produced, generated, stored,
treated, utilized, transported or disposed of prior to Closing Time by or on
behalf of Xxxxxxx Printing, including its employees, representatives, officers,
directors, agents, contractors, transporters or any person for which acts or
omissions Xxxxxxx Printing is responsible and including any of the foregoing at
the Shanghai Facility or any Former Facility;
(w) Any release of Hazardous Substances into the air, surface
water, groundwater, soil or real property prior to the Closing Time by Xxxxxxx
Printing, including its employees, representatives, officers, directors, agents,
contractors, transporters or any person for which acts or omissions Xxxxxxx
Printing is responsible, and whether at the Shanghai Facility, any Former
Facility or elsewhere;
(x) Those claims, demands, debts, obligations and liabilities
arising out of or related to those matters specifically designated as
"Indemnified Liabilities" in the Schedules and Supplements to this Agreement; or
(y) To the extent not covered in clauses (a) through (x) in
this Section 2.11, any and all liability or obligation arising out of or
resulting from: (i) acts, omissions, events, occurrences, circumstances or
transactions of whatsoever type or nature occurring or existing prior to the
Closing Time or (ii) the ownership, operation, use, or possession of any assets,
properties or rights used or held for use by Xxxxxxx Printing or CS Printing
prior to the Closing Time, or (iii) the condition of any of the Retained Assets
prior to the Closing Time, or (iv) any design defects in the Xxxxxxx Printing
product lines regarding goods manufactured and sold by Xxxxxxx Printing prior to
the Closing Time, or (v) the
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ownership or operation by CS Printing or Xxxxxxx Printing of any business or
operations other than the Roll Handling Business.
For purposes of this Agreement, "Indemnified Liabilities"
collectively means and shall be deemed to include all liabilities and
obligations described in this Section 2.11 and, for purposes of this Agreement,
no such liability or obligation shall be deemed a liability or obligation of CS
Printing or Xxxxxxx Printing even if by operation of law any such liability or
obligation is either retained by CS Printing or Xxxxxxx Printing or otherwise
becomes a liability or obligation of MEGTEC or any Designated Purchaser. The
matters described in this Section 2.11 are enumerations for the avoidance of
doubt and are not intended to narrow the scope of Indemnified Liabilities.
ARTICLE III: PURCHASE PRICE
SECTION 3.01. PURCHASE PRICE. The purchase price for the Purchased
Assets and the CS Printing Shares shall be an amount equal to the tangible net
book value as of the Closing Time of the Cash, Inventories, Receivables,
Prepaids, Fixed Assets, Retained Cash, Retained Inventories, Retained
Receivables, Retained Prepaids and Retained Fixed Assets, less Accounts Payable,
Accrued Expenses, Retained Accounts Payable and Retained Accrued Expenses
(collectively, the "Closing Tangible Net Book Value"), plus a fixed premium of
Four Million Dollars ($4,000,000) (the "Purchase Price").
SECTION 3.02. CLOSING TANGIBLE NET BOOK VALUE. The Closing Tangible Net
Book Value of the Cash, Inventories, Receivables, Prepaids and Fixed Assets
included in the Purchased Assets and the Retained Cash, Retained Inventories,
Retained Receivables, Retained Prepaids and Retained Fixed Assets included in
the Retained Assets, less the Accounts Payable and Accrued Expenses included in
the Assumed Obligations and less the Retained Accounts Payable and Retained
Accrued Expenses included in the Continuing Obligations will be determined as of
the Closing Time in accordance with the Accounting Instructions set forth in
EXHIBIT B hereto (the "Accounting Instructions").
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SECTION 3.03. PAYMENT OF ESTIMATED PURCHASE PRICE. At the Closing,
MEGTEC shall pay or cause any Designated Purchaser to pay to Xxxxxxx Enkel,
Xxxxxxx Xxxx and Xxxxxxx Asia an estimated purchase price, in the aggregate, in
the amount of Ten Million Dollars ($10,000,000) (the "Estimated Purchase
Price").
SECTION 3.04. ADJUSTMENT TO ESTIMATED PURCHASE PRICE.
(a) ADJUSTMENT AMOUNT. The Estimated Purchase Price will be
subject to post-Closing adjustment (a "Purchase Price Adjustment"), up or down,
to the extent the Closing Tangible Net Book Value as of the Closing Time is more
or less than Seven Million Three Hundred Seventy-Six Thousand Dollars
($7,376,000). Closing Tangible Net Book Value as of the Closing Time will be
determined from a statement (the "Final Statement") prepared by MEGTEC in
accordance with the Accounting Instructions and subject to review and approval
by Xxxxxxx Technology and its accountants, as provided in Section 3.04(b)
hereof. Both Xxxxxxx Technology and MEGTEC and their respective employees and
representatives shall be entitled to participate in the taking of the physical
inventory in connection with the preparation of the Final Statement.
(b) FINAL STATEMENT. To determine whether an adjustment to the
Estimated Purchase Price is required, MEGTEC will, within one hundred twenty
(120) days after the Closing, prepare and deliver to Xxxxxxx Technology a
proposed Final Statement, which will reflect the Closing Tangible Net Book Value
as of the Closing Time. The purchase price for the Xxxxxxx Enkel portion of the
Purchased Assets, the Xxxxxxx Xxxx portion of the Purchased Assets and the CS
Printing Shares shall be expressed in the Final Statement in United States
Dollars using the foreign currency exchange rate for the applicable local
currency as of the Closing Time as reported in the Eastern Edition of The Wall
Street Journal. MEGTEC will provide Xxxxxxx Technology and its accountants with
reasonable access to its work papers for the Final Statement and permit Xxxxxxx
Technology and its accountants to review and/or audit the same, at Xxxxxxx
Technology's sole cost and expense. If Xxxxxxx Technology disputes the Final
Statement, Xxxxxxx Technology shall deliver to MEGTEC within sixty (60) days
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after receiving the Final Statement, a statement (the "Dispute Notice") setting
forth what Xxxxxxx Technology and its accountants believe is the correct Closing
Tangible Net Book Value as of the Closing Time and describing, in reasonable
detail, the basis for the determination of such different Closing Tangible Net
Book Value. The Parties shall use reasonable efforts to resolve such differences
regarding the determination of Closing Tangible Net Book Value as of the Closing
Time for a period of thirty (30) days after Xxxxxxx Technology has given the
Dispute Notice. If the Parties resolve such differences, the Closing Tangible
Net Book Value agreed to by the Parties shall be deemed to be the final Closing
Tangible Net Book Value.
(c) DISPUTE RESOLUTION. If the Parties do not reach a final
resolution within thirty (30) days after Xxxxxxx Technology has given the
Dispute Notice, unless each Party agrees in writing in its sole discretion to
continue its efforts to resolve all differences, Ernst & Young, LLP or another
mutually acceptable "big 5" accounting firm (other than Xxxxxx Xxxxxxxx LLP or
PricewaterhouseCoopers LLP) (the "Neutral Accountants") shall resolve such
differences in the manner provided in this Section 3.04(c). Xxxxxxx Technology
and MEGTEC shall each be entitled to make a presentation to the Neutral
Accountants, pursuant to procedures to be agreed to among MEGTEC, Xxxxxxx
Technology and the Neutral Accountants, advocating the merits of Closing
Tangible Net Book Value as of the Closing Time as espoused by such Party; and
the Neutral Accountants shall be required to resolve the differences between the
Parties and determine Closing Tangible Net Book Value as of the Closing Time,
solely in accordance with the provisions of the Accounting Instructions, within
ten (10) Business Days thereafter. The Closing Tangible Net Book Value as of the
Closing Time determined by the Neutral Accountants shall be deemed to be the
final Net Book Value as of the Closing Time and the Purchase Price Adjustment,
as adjusted to reflect such determination, shall be deemed to be the final
Purchase Price Adjustment. Such determination by the Neutral Accountants shall
be conclusive and binding upon the Parties, absent fraud or manifest error.
Nothing herein shall be construed to authorize or permit the Neutral Accountants
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(i) to determine any questions or matters whatsoever under or in connection with
this Agreement except for the resolution of differences between the Parties
regarding the determination of Closing Tangible Net Book Value solely in
accordance with the Accounting Instructions, or (ii) to resolve any such
differences by making an adjustment to the Purchase Price Adjustment that is
outside of the range defined by amounts as finally proposed by the Parties in
their respective proposed statements of Closing Tangible Net Book Value
submitted in accordance with this Section 3.04(c).
(d) FEES. All fees, costs and expenses of the Neutral
Accountants will be shared by MEGTEC and Xxxxxxx Technology in inverse
proportion to the aggregate dollar value of unresolved matters decided in each
Party's favor, as determined by the Neutral Accountants in their sole
discretion.
(e) FAILURE TO DELIVER NOTICE. Failure of Xxxxxxx Technology
to deliver a Dispute Notice within sixty (60) days after receiving the Final
Statement from MEGTEC shall constitute acceptance by Xxxxxxx Technology of the
Closing Tangible Net Book Value set forth in the Final Statement, whereupon such
Closing Tangible Net Book Value shall be deemed to be the final Closing Tangible
Net Book Value and the Purchase Price Adjustment shall be deemed to be the final
Purchase Price Adjustment.
(f) PAYMENT. Any amount due to or from Xxxxxxx Technology,
including interest as determined in accordance with Section 3.04(g) hereof, will
be paid by wire transfer of immediately available funds within five (5) Business
Days after the final determination of Closing Tangible Net Book Value, whether
such determination is made by mutual agreement of the Parties or by decision of
the Neutral Accountants.
(g) INTEREST. Interest would be computed from the Closing Time
to the date the Purchase Price Adjustment is paid at the prime rate of interest
of The Bank of New York in effect on the date of Closing.
SECTION 3.05. ALLOCATION OF PURCHASE PRICE. MEGTEC, Xxxxxxx Technology,
Xxxxxxx Xxxx, Xxxxxxx Asia and Xxxxxxx Enkel agree that the consideration
provided for in this Agreement shall be allocated by Xxxxxxx
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Technology, Xxxxxxx Xxxx, Xxxxxxx Asia, Xxxxxxx Enkel and MEGTEC and any
Designated Purchaser to the Purchased Assets, Retained Assets, Assumed
Obligations, CS Printing Shares and the Continuing Obligations in accordance
with the allocations set forth in EXHIBIT C hereto. Xxxxxxx Technology, Xxxxxxx
Xxxx, Xxxxxxx Asia, Xxxxxxx Enkel and MEGTEC agree to adhere to, and MEGTEC
agrees to cause any Designated Purchaser to adhere to, such allocation for the
purposes of any federal or state income or franchise tax returns filed by them
subsequent to the Closing, including the determination by Xxxxxxx Technology,
Xxxxxxx Xxxx, Xxxxxxx Asia and Xxxxxxx Enkel, as the case may be, of taxable
gain or loss on the sale of the Purchased Assets and the CS Printing Shares and
the assumption of the Assumed Obligations and the determination by MEGTEC and
any Designated Purchaser of their respective tax basis with respect to the CS
Printing Shares, Purchased Assets, Retained Assets, Assumed Obligations and
Continuing Obligations.
ARTICLE IV: CLOSING
SECTION 4.01. CLOSING. Subject to the provisions of Articles X and XII
hereof:
(a) CLOSING TIME. The closing of the transactions contemplated
by this Agreement shall take place within five (5) Business Days after receipt
of (i) all necessary Consents of Governmental Authorities related to the
transfer of the ownership interest in and shares of Xxxxxxx Printing to CS
Printing and the obtaining by CS Printing, in accordance with applicable Legal
Requirements, of all licenses related thereto and (ii) all necessary Consents of
Governmental Authorities in Germany related to the transactions contemplated
herein, but in each such instance in no event later than August 31, 2001 at the
offices of Xxxxxx, Xxxxx & Bockius LLP, 101 Park Avenue, New York, New York, or
at such other place or date as may be agreed upon from time to time in writing
by Xxxxxxx Technology and MEGTEC (the "Closing Time"). The "Closing" shall mean
the making of the deliveries to be made by MEGTEC and any Designated Purchaser
and Xxxxxxx Technology, Xxxxxxx Xxxx, Xxxxxxx Asia and Xxxxxxx
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Enkel, respectively, pursuant to Sections 4.01(b) and (c) hereof and the Closing
and the Closing Time shall be deemed to have occurred for all purposes under
this Agreement at 11:59 p.m. Eastern Daylight Time on the date on which the
Closing occurs. Subject to Article XII hereof, the failure of the Closing to
occur as provided in this Section 4.01(a) shall not result in the termination of
this Agreement and will not relieve any Party of its obligations under this
Agreement. MEGTEC and any Designated Purchaser shall not be obligated to
complete the purchase of any of the Purchased Assets and the CS Printing Shares
unless the purchase of all of the Purchased Assets and the CS Printing Shares is
completed simultaneously.
(b) DELIVERIES AT THE CLOSING BY XXXXXXX TECHNOLOGY, XXXXXXX
XXXX, XXXXXXX ASIA AND XXXXXXX ENKEL. At or prior to the Closing Time, Xxxxxxx
Technology, Xxxxxxx Xxxx, Xxxxxxx Asia and Xxxxxxx Enkel, as the case may be,
will deliver to MEGTEC and any Designated Purchaser, as the case may be, the
following, all of which shall be duly executed and be in form and substance
reasonably satisfactory to counsel for MEGTEC.
(1) A general conveyance, assignment and xxxx of sale
for the Purchased Assets in the form of EXHIBIT D hereto;
(2) Assignments of the Patents and Patent
Applications in the form of EXHIBIT E hereto;
(3) Assignments of all Marks and all applications for
registration of any Xxxx in the form of EXHIBIT F hereto;
(4) A certificate in the form of EXHIBIT G hereto of
the Secretary of Xxxxxxx Technology, certifying the Certificate of Incorporation
and By-Laws of Xxxxxxx Technology;
(5) A certificate in the form of EXHIBIT H hereto
executed by the Secretary of Xxxxxxx Technology, dated the date of the Closing,
certifying that the conditions set forth in Article X, Section A hereof have
been satisfied;
(6) A certificate in the form of EXHIBIT I hereto of
the Secretary of Xxxxxxx Enkel, certifying the Certificate of Incorporation and
By-Laws of Xxxxxxx Enkel;
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(7) A certificate in the form of EXHIBIT J hereto
executed by the Secretary of Xxxxxxx Enkel, dated the date of the Closing,
certifying that the conditions set forth in Article X, Section A hereof have
been satisfied;
(8) A certificate in the form of EXHIBIT K hereto of
a Director of Xxxxxxx Xxxx, certifying the Articles of Association of Xxxxxxx
Xxxx;
(9) a certificate in the form of EXHIBIT L hereto
executed by a Director of Xxxxxxx Xxxx, dated the date of the Closing,
certifying that the conditions set forth in Article X, Section A hereof have
been satisfied;
(10) A certificate in the form of EXHIBIT M hereto of
the Secretary of Xxxxxxx Asia, certifying the Certificate of Incorporation and
By-Laws of Xxxxxxx Asia;
(11) A certificate in the form of EXHIBIT N hereto
executed by the Secretary of Xxxxxxx Asia, dated the date of the Closing,
certifying that the conditions set forth in Article X, Section A hereof have
been satisfied;
(12) The CS Printing Shares;
(13) The Corporate Minute Book and Stock Ledger and
Corporate Seal for CS Printing;
(14) The Corporate Minute Book and Corporate Seal for
Xxxxxxx Printing;
(15) A purchase note (Sw. "kopebrev"), satisfactory
in form and substance to MEGTEC's Swedish legal counsel, in respect of the owned
real estate included within the Amal Facility designated as "Xxxxxxxxxxxx 0"
Xxxx, Xxxxxx;
(16) A written waiver by the local community in Amal
("Amals kommun"), satisfactory in form and substance to MEGTEC's Swedish legal
counsel, that it will not avail itself of its pre-emptive right (Sw. "forkop")
to purchase the real estate designated "Galbgjutaren 6" pursuant to the Act on
Pre-emptive Rights (Sw. "Forkopslag 1967:878");
(17) A written confirmation, satisfactory in form and
substance to MEGTEC's Swedish legal counsel, from Skandinaviska Enskilda Banken
confirming that Skandinaviska Enskilda Banken shall have no rights with
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respect to Xxxxxxx Amal's portion of the Purchased Assets covered by mortgage
(Sw. "avstaende xxxx forfoljelseratt)";
(18) Minutes from a Shareholder's Meeting with the
shareholders of each of Xxxxxxx Enkel and Xxxxxxx Xxxx containing resolutions
whereby the respective shareholders have approved the sale of Xxxxxxx Amal's and
Xxxxxxx Enkel's respective portions of the Purchased Assets on the terms set
forth herein;
(19) Minutes from a Shareholder's Meeting with the
shareholders of Xxxxxxx Asia containing a resolution whereby the shareholders of
Xxxxxxx Asia have approved the sale of CS Printing on the terms set forth
herein;
(20) Minutes from a Board of Directors Meeting of
Xxxxxxx Technology containing a resolution whereby the Board of Directors of
Xxxxxxx Technology has approved the transactions contemplated by this Agreement;
(21) Written Resignations of the officers and
directors of CS Printing effective as of the Closing Time;
(22) A Consignment Agreement with respect to the
Consigned Inventories in the form of EXHIBIT O hereto duly executed by Xxxxxxx
Enkel; and
(23) Such other separate instruments of sale,
assignment, transfer or conveyance, in form and substance reasonably
satisfactory to MEGTEC, that MEGTEC and any Designated Purchaser may reasonably
deem necessary or appropriate in order to perfect, confirm or evidence title in
accordance with this Agreement to all or any part of the Purchased Assets, and
the CS Printing Shares or to otherwise carry out the purpose of this Agreement.
(c) DELIVERY AT THE CLOSING BY MEGTEC. At or prior to the
Closing Time, MEGTEC will deliver to Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx
Asia and Xxxxxxx Xxxx the following which shall be duly executed and be in form
and substance reasonably satisfactory to counsel for Xxxxxxx Technology, Xxxxxxx
Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia:
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(1) The Estimated Purchase Price in accordance with
Section 3.03 hereof;
(2) An Assumption Agreement with respect to the
Assumed Obligations in the form of EXHIBIT P hereto;
(3) A certificate in the form of EXHIBIT Q hereto of
the the Senior Associate General Counsel or an Assistant Secretary of Sequa,
certifying the Certificate of Incorporation and By-Laws of Sequa;
(4) A certificate in the form of EXHIBIT R hereto
executed by a Senior Associate General Counsel of Sequa, dated the date of the
Closing, certifying that the conditions set forth in Article X, Section B hereof
have been satisfied;
(5) A certificate in the form of EXHIBIT S hereto of
the Secretary of MEGTEC, certifying the Certificate of Incorporation and By-Laws
of MEGTEC; and
(6) A certificate in the form of EXHIBIT T hereto
executed by the Secretary of MEGTEC, dated the date of the Closing, certifying
that the conditions set forth in Article X, Section B hereof have been
satisfied; and
(7) A Consignment Agreement with respect to the
Consigned Inventories in the Form of EXHIBIT O hereto, duly executed by MEGTEC.
ARTICLE V: REPRESENTATIONS AND WARRANTIES OF SEQUA AND
MEGTEC
Sequa and MEGTEC hereby, jointly and severally, represent and warrant to
Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia that:
SECTION 5.01. CORPORATE ORGANIZATION AND QUALIFICATION. Each of Sequa and
MEGTEC is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has all requisite corporate power
and authority to own, lease and operate its property and, in the case of MEGTEC,
the Purchased Assets and otherwise conduct its business as now
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being conducted and, in the case of MEGTEC, the Roll Handling Business after the
Closing Time.
SECTION 5.02. AUTHORIZATION OF TRANSACTION. Each of Sequa and MEGTEC
has full corporate power and authority to enter into this Agreement, perform its
obligations hereunder and consummate the transactions contemplated hereby,
including, without limitation, the execution and delivery of this Agreement and
the other documents and instruments specified in Section 4.01(c) hereof. All
necessary and appropriate corporate action has been taken by Sequa and MEGTEC
with respect to the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby. This Agreement
constitutes a valid and binding obligation of Sequa and MEGTEC, enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereinafter
in effect relating to creditors' rights generally and subject to limitations
imposed by general equitable principles regardless of whether such
enforceability is considered in a proceeding at law or in equity.
SECTION 5.03. NON-CONFLICT. Neither the execution and delivery of this
Agreement nor the consummation of any of the transactions contemplated hereby
will, directly or indirectly (with or without notice or lapse of time): (i)
contravene, conflict with, or result in a violation of any provision of the
Articles of Incorporation or By-Laws of Sequa or MEGTEC, or any resolution
adopted by the board of directors or the stockholders of Sequa or MEGTEC; or
(ii) contravene, conflict with, or result in a violation of any Legal
Requirement or any Order to which Sequa or MEGTEC or any of its property is or
may be subject or (iii) require any Consent of, or notice to, or declaration,
filing or registration with, any Governmental Authority or other Person.
SECTION 5.04. FINDER; BROKERS Neither Sequa or MEGTEC is a party to any
agreement with any finder or broker, or in any way obligated to any finder or
broker for any commissions, fees or expenses, in connection with the origin,
negotiation, execution or performance of this Agreement or the transactions
contemplated hereby.
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SECTION 5.05. FINANCIAL WHEREWITHAL. MEGTEC has sufficient funds as are
required to allow it to pay the Estimated Purchased Price and other payments
required to be made by MEGTEC hereunder.
SECTION 5.06. LEGAL PROCEEDINGS. There is no pending or, to the
Knowledge of Sequa and MEGTEC, Threatened, claims, demands, notices of
violation, actions, arbitrations, audits, grievances, hearings, investigations,
litigation, or suits (whether civil, criminal, administrative, investigative, or
informal) (collectively, a "Proceeding") by or against Sequa or MEGTEC or any
director or officer of Sequa or MEGTEC or involving any of its properties or
assets that (i) questions the validity of this Agreement or (ii) seeks to delay,
prohibit or restrict in any manner any action taken or to be taken by MEGTEC
under this Agreement.
SECTION 5.07. DISCLOSURE. No representation or warranty of Sequa or
MEGTEC in this Agreement or any statement of Sequa or MEGTEC contained in any
certificate or other document required to be furnished by any officer of Sequa
or MEGTEC contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements herein or therein, in light of
the circumstances in which they were made, not misleading.
ARTICLE VI:.REPRESENTATIONS AND WARRANTIES OF XXXXXXX
TECHNOLOGY, XXXXXXX XXXX, XXXXXXX ASIA AND XXXXXXX ENKEL
Xxxxxxx Technology, Xxxxxxx Xxxx, Xxxxxxx Asia and Xxxxxxx Enkel
hereby, jointly and severally, represent and warrant to MEGTEC and Sequa that:
SECTION 6.01. CORPORATE ORGANIZATION AND QUALIFICATION. Each of Xxxxxxx
Technology, Xxxxxxx Enkel, Xxxxxxx Asia and CS Printing is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to own, lease and
operate its property, including, in the case of Xxxxxxx Enkel, its portion of
the Purchased Assets, and otherwise conduct its business, including, in the case
of Xxxxxxx Enkel, the Roll Handling Business, as now being conducted. Xxxxxxx
Xxxx is a limited liability company duly organized and validly existing under
the laws of Sweden and Xxxxxxx Printing is a corporation duly
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organized and validly existing under the laws of the People's Republic of China,
and each of Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Printing has all requisite
corporate power and authority to own, lease and operate its property, including,
in the case of Xxxxxxx Xxxx, its portion of the Purchased Assets and in the case
of Xxxxxxx Printing, the Retained Assets, and otherwise conduct its business,
including the Roll Handling Business, as now being conducted. SCHEDULE 6.01 sets
forth the subsidiaries of each of Xxxxxxx Enkel and CS Printing. Each of Xxxxxxx
Xxxx and Xxxxxxx Printing has no subsidiaries and does not own, directly or
indirectly, any interest or investment in or exercise control (as stockholder or
in any other manner) over any Person. Each of Xxxxxxx Enkel, Xxxxxxx Xxxx and
Xxxxxxx Printing is duly qualified to do business and Xxxxxxx Enkel is in good
standing in each jurisdiction listed in SCHEDULE 6.01, and is not qualified to
do business in any other jurisdiction and neither the nature of the Roll
Handling Business conducted by it nor the property owned or operated by it
requires it to qualify to do business in any other jurisdiction where such
failure to so qualify would have a Material Adverse Effect on the conduct of the
Roll Handling Business or use or ownership of any of its assets or properties.
Except as set forth in SCHEDULE 6.01, neither Xxxxxxx Enkel, Xxxxxxx Xxxx nor
Xxxxxxx Printing has received any written notice or assertion from any
Governmental Authority of any jurisdiction in which it is not qualified or
authorized to do business to the effect that it is required to be qualified or
otherwise authorized to do business therein.
SECTION 6.02. AUTHORIZATION OF TRANSACTION. Each of Xxxxxxx Technology,
Xxxxxxx Xxxx, Xxxxxxx Asia and Xxxxxxx Enkel has full corporate power and
authority to enter into this Agreement, perform its obligations hereunder and
consummate the transactions contemplated hereby, including, without limitation,
the execution and delivery of this Agreement and the other documents and
instruments specified in Section 4.01(b) hereof. All necessary and appropriate
corporate and stockholder action has been taken by Xxxxxxx Technology, Xxxxxxx
Asia, CS Printing, Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Printing with respect
to the execution, delivery and performance of this
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Agreement and the consummation of the transactions contemplated hereby. This
Agreement constitutes a valid and binding obligation of Xxxxxxx Technology,
Xxxxxxx Xxxx, Xxxxxxx Asia and Xxxxxxx Enkel, enforceable in accordance with its
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereinafter in effect relating to
creditors' rights generally and subject to limitations imposed by general
equitable principles regardless of whether such enforceability is considered in
a proceeding at law or in equity.
SECTION 6.03. NON-CONFLICT. Except as set forth in SCHEDULE 6.03,
neither the execution and delivery of this Agreement nor the consummation of any
of the transactions contemplated hereby will, directly or indirectly (with or
without notice or lapse of time): (a) contravene, conflict with, or result in a
violation of any provision of the Certificate of Incorporation, By-Laws,
Articles of Association or other constitutive document of Xxxxxxx Technology,
Xxxxxxx Asia, CS Printing or any member of the Roll Handling Group, or any
resolution adopted by the board of directors or stockholders of Xxxxxxx
Technology, Xxxxxxx Asia, CS Printing or any member of the Roll Handling Group;
(b) contravene, conflict with, or result in a violation of any Legal Requirement
or any Order to which Xxxxxxx Technology, Xxxxxxx Asia, CS Printing or any
member of the Roll Handling Group or any of the Purchased Assets or Retained
Assets are or may be subject; (c) contravene, conflict with, or result in a
violation of any of the terms or requirements of, or give any Governmental
Authority the right to revoke, withdraw, suspend, cancel, terminate, or modify,
any Permit held by any member of the Roll Handling Group in its conduct of the
Roll Handling Business; (d) contravene, conflict with, or result in a violation
or breach of any provision of, or give any Person the right to declare a default
or exercise any remedy under, or to accelerate the maturity or performance of,
or to cancel, terminate, or modify, any material contract, lease, contract,
agreement or other instrument, commitment or obligation included in either the
Purchased Assets or the Retained Assets and relating to the Roll Handling
Business to which any member of the Roll Handling Group is or may be bound or
affected; (e) result in the
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imposition or creation of any Lien upon, or with respect to, any of the CS
Printing Shares, the ownership interest or shares of Xxxxxxx Printing, the
Purchased Assets or the Retained Assets; or (f) require any Consent of, or
notice to, or declaration, filing or registration with, any Governmental
Authority or other Person.
SECTION 6.04. INVESTMENTS; SUBSIDIARIES.
(a) Except as set forth in SCHEDULE 6.04(a), each member of
the Roll Handling Group is engaged in the Roll Handling Business and, except as
set forth in SCHEDULE 6.04(a), to Xxxxxxx'x Knowledge, no member of the Roll
Handling Group is now engaged in or has ever engaged in any other business or
activities except as incidental to the Roll Handling Business. Except as set
forth in SCHEDULE 6.04(a), no member of the Roll Handling Group has acquired
from any other Person, any ongoing business or product line which is a part of
the Roll Handling Business.
(b) SCHEDULE 6.04(b) completely and accurately sets forth the
authorized, issued and outstanding equity securities of CS Printing and Xxxxxxx
Printing and the ownership of the outstanding equity securities of CS Printing
and Xxxxxxx Printing. Except as set forth in SCHEDULE 6.04(b): (i) all
outstanding equity securities of CS Printing and Xxxxxxx Printing have been
validly issued in compliance with all applicable Legal Requirements and are
fully paid, non-assessable and free of preemptive rights; (ii) all outstanding
equity securities of Xxxxxxx Printing are owned by CS Printing, free and clear
of any and all Liens of whatever nature and all outstanding equity securities of
CS Printing are owned by Xxxxxxx Asia, free and clear of any and all Liens of
whatever nature; (iii) there are no stockholder agreements, voting trusts or
other agreements or understandings with respect to the Roll Handling Business or
operation of Xxxxxxx Printing, or voting of CS Printing or Xxxxxxx Printing
equity securities, to which Xxxxxxx Asia, CS Printing or Xxxxxxx Printing is a
party or by which Xxxxxxx Asia, CS Printing or Xxxxxxx Printing is bound; and
(iv) there is no subscription, option, warrant, call, right, contract,
commitment, understanding or arrangement relating to the issuance, sale or
transfer of any equity securities of
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CS Printing or Xxxxxxx Printing, including any right of conversion or exchange
under any outstanding security or other instrument. Xxxxxxx Technology has
heretofore delivered to MEGTEC complete and correct copies of the charter,
certificates, articles, by-laws or code or regulations (which terms shall be
deemed to also include comparable governing instruments with different names) of
each of CS Printing and Xxxxxxx Printing and each other item described in (iii)
and (iv) above, as amended and presently in effect, and each of CS Printing and
Xxxxxxx Printing is not in default in the performance, observation or
fulfillment of its charter, articles, by-laws or code or regulations or any
comparable governing instrument.
SECTION 6.05. FINANCIAL STATEMENTS.
(a) SCHEDULE 6.05(a) includes (i) balance sheets of the Roll
Handling Group as of June 30 for each of the fiscal years 1998 through 2000, and
the related statements of income and retained earnings for each of the fiscal
years then ended (the "Year-End Financials") and (ii) balance sheet of the Roll
Handling Group as of March 31, 2001 (the "Interim Balance Sheet") and the
related statements of income, retained earnings for the nine (9) months then
ended (the "Interim Financial Statements") ((i) and (ii) collectively, the
"Financial Statements"). The Financial Statements have been prepared from the
books and records of the Roll Handling Group and fairly present the financial
condition and results of operations of the Roll Handling Group as at the
respective dates of and for the periods referred to in the Financial Statements,
and all in accordance with GAAP consistently applied for the periods presented.
Except as expressly noted therein, the statements of income included in the
Financial Statements do not include any items which would be treated as special
or nonrecurring income or expense pursuant to GAAP. The Financial Statements are
consistent with and have been included in Xxxxxxx Technology's audited and/or
unaudited, as the case may be, financial statements and other external reporting
by Xxxxxxx Technology.
(b) Except as set forth in SCHEDULE 6.05(b), the Financial
Statements include a reasonable allocable charge for all services provided to
the
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Roll Handling Group and the Roll Handling Business by Xxxxxxx Technology and
Xxxxxxx Asia and any of their respective Affiliates.
(c) SCHEDULE 6.05(c) sets forth the budget for the fiscal year
ending June 30, 2001, used by Xxxxxxx Technology for the Roll Handling Group for
internal planning purposes. Xxxxxxx Technology does not have nor is it using any
budget for the Roll Handling Group for the fiscal year ending June 30, 2002.
(d) SCHEDULE 6.05(d) sets forth a complete and accurate list
of all bank accounts and lockboxes held or used by the Roll Handling Group and
by Xxxxxxx Technology and Xxxxxxx Asia relating to the Roll Handling Group.
(e) SCHEDULE 6.05(e) sets forth the capital spending budget
for the Roll Handling Group for the 2001 year (the "Capital Spending Budget").
The Capital Spending Budget was prepared in the ordinary course of business (and
not in anticipation of this transaction) and in all material respects adequately
provides for capital spending to maintain current operations and to grow sales
in line with the year 2001 budget. Except as set forth in SCHEDULE 6.05(e), the
Roll Handling Group is in conformity in all material respects with the Capital
Spending Budget.
SECTION 6.06. BOOKS AND RECORDS; ACCOUNTING PRACTICES.
(a) The books and records, financial and otherwise, of the
Roll Handling Group, including those relating to the Roll Handling Business
accurately set out and disclose any and all material transactions involving the
Roll Handling Business and the financial position of the Roll Handling Group as
relates to the Roll Handling Business. All material transactions of Xxxxxxx
Enkel, Xxxxxxx Xxxx and Xxxxxxx Printing relating to the Roll Handling Business,
the Purchased Assets, the Retained Assets, Assumed Obligations and Continuing
Obligations have been accurately recorded in all material respects in such books
and records and in the Schedules and Supplements attached hereto. Such books and
records have been to the date hereof and will be, through the Closing Time,
properly kept and maintained in a consistent manner in accordance with GAAP or
local statutory reporting requirements, as the case may be. SCHEDULE 6.06(a)
sets forth a true and correct copy of the reconciliation of the Xxxxxxx Xxxx and
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Xxxxxxx Printing statutory financial statements as of March 31, 2001 to GAAP for
inclusion in Xxxxxxx Technology's consolidated financial statements.
(b) The Roll Handling Group makes and keeps books and records
accurately reflecting in all material respects the Purchased Assets, Retained
Assets, Assumed Obligations, Continuing Obligations and the Roll Handling
Business and maintains internal accounting controls that provide reasonable
assurance that (i) transactions are executed with management's authorization;
(ii) transactions are recorded as necessary to permit preparation of the Roll
Handling Group's financial statements and to maintain accountability for the
assets and liabilities of the Roll Handling Group; (iii) access to the assets of
the Roll Handling Group relating to the Roll Handling Business is permitted only
in accordance with management's authorization and (iv) the reported
accountability of the assets of the Roll Handling Group is compared with
existing assets at reasonable intervals.
SECTION 6.07. ABSENCE OF CERTAIN CHANGES. Except as set forth in
SCHEDULE 6.07, since March 31, 2001:
(a) Except for transactions contemplated by this Agreement,
there has not occurred any event or condition of any character which has
materially adversely affected, or may reasonably be expected to so affect, the
Roll Handling Group, the Assumed Obligations, Continuing Obligations, the
Purchased Assets or the Retained Assets, or the prospects or condition
(financial or otherwise) of the Roll Handling Business, including, without
limitation, any loss of or material damage to any of the rights, property or
Purchased Assets and/or Retained Assets of the Roll Handling Group, or any loss
of or material adverse change in relationship with, a Significant Customer or
Significant Supplier (any such effect, a "Material Adverse Effect"); and
(b) The Roll Handling Group has not taken any action or failed
to take any action which action or failure to take any action would not have
been permitted by Section 7.01 hereof had it been in effect between March 31,
2001 and the date hereof.
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SECTION 6.08. UNDISCLOSED LIABILITIES. Except as set forth in SCHEDULE
6.08, the Roll Handling Group has no material liability or obligation of any
nature arising out of or relating to the Roll Handling Business, the Purchased
Assets or the Retained Assets (whether liquidated, unliquidated, accrued,
unaccrued, absolute, contingent or otherwise and whether due or to become due)
except:
(a) those set forth or reflected in the Financial Statements
or notes thereto, which have not been paid or discharged since the date thereof;
(b) those arising under the Customer Contracts, Supplier
Contracts, Other Contracts, Personal Property Leases, Real Estate Leases and the
Retained Customer Contracts, Retained Supplier Contracts, Retained Other
Contracts and Retained Leases identified in the Schedules and Supplements;
(c) those not required by GAAP or local statutory reporting
requirements, as the case may be, to be identified in the Financial Statements
or notes thereto or required pursuant to the terms and conditions of this
Agreement, in any of the Schedules and Supplements; and
(d) current liabilities incurred in or as a result of the
conduct of the Roll Handling Business by the Roll Handling Group in the ordinary
course consistent with past practice since March 31, 2001, which are reflected
in all material respects on its books and records and which are not inconsistent
with the other representations, warranties and agreements of Xxxxxxx Technology,
Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia set forth in this Agreement, the
Schedules and Supplements.
SECTION 6.09. RECEIVABLES. All Receivables and Retained Receivables of
the Roll Handling Group reflected in the Financial Statements (subject to the
reserve for uncollectable amounts reflected in the Financial Statements)
represent or will, in the case of the Final Statement, represent valid
obligations arising from sales actually made or services actually performed in
the ordinary course of business prior to the Closing Time. Except as set forth
in SCHEDULE 6.09, there is no outstanding, or to Xxxxxxx'x Knowledge, Threatened
claim or right of set-off with any obligor of a Receivable or Retained
Receivable
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relating to the amount or validity of such Receivables and/or Retained
Receivables. SCHEDULE 6.09 contains a summary of all Receivables and Retained
Receivables as of May 31, 2001, which sets forth the aging of all such
Receivables and Retained Receivables, other than any of the foregoing which are
part of the Excluded Assets or Transferred Assets.
SECTION 6.10. INVENTORIES. Except as set forth in SCHEDULE 6.10, all
inventory of the Roll Handling Group reflected in the Financial Statements
(subject to the reserve for obsolescence, shrinkage, excess quantities,
defective materials and deterioration), is merchantable and consists of a
quality and quantity usable or salable in the ordinary course of business of the
Roll Handling Business, except for obsolete items and items which are defective
or of below-standard quality or whose aging has exceeded or will exceed as of
the Closing Time applicable standards, all of which have been written off or
written down to net realizable value in the Financial Statements. All
Inventories and Retained Inventories not written off have been priced at the
lower of cost or market on a first-in, first-out basis. Except as set forth in
SCHEDULE 6.10, no inventory has been pledged as collateral or is held by the
Roll Handling Group on consignment from others, or is held by others on
consignment from the Roll Handling Group.
SECTION 6.11. ACCOUNTS PAYABLE. All Accounts Payable and Retained
Accounts Payable of the Roll Handling Group have arisen in the ordinary course
of the Roll Handling Business and except as set forth in SCHEDULE 6.11, are not
subject to any pending or, to Xxxxxxx'x Knowledge, Threatened Proceedings.
SECTION 6.12. REAL PROPERTY.
(a) SCHEDULE 6.12(a) sets forth a complete and accurate (i)
legal description of all real property currently owned by the Roll Handling
Group; (ii) list of any real property currently leased or licensed by the Roll
Handling Group from other Persons and (iii) list of all other real property
interests currently held or used by the Roll Handling Group in the Roll Handling
Business (collectively, the "Roll Handling Group Facilities"). SCHEDULE 6.12(a)
contains a complete and accurate list of the most recent title reports, title
insurance policies,
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appraisals and engineering, geologic and similar studies and reports in respect
of each of the Amal Facility and Shanghai Facility prepared by or for Xxxxxxx
Technology or the Roll Handling Group or of which it has Knowledge. Xxxxxxx
Technology has provided MEGTEC with complete and accurate copies of all such
items relating to Xxxxxxx Xxxx and Xxxxxxx Printing.
(b) Except as set forth in SCHEDULE 6.12(b):
(i) To Xxxxxxx'x Knowledge, the Roll Handling Group
Facilities and the use by the Roll Handling Group thereof are not in violation
of any recorded or unrecorded covenant or restriction or any building, zoning,
subdivision, land use or other Legal Requirement pertaining to the ownership,
condition, lease or use of the Roll Handling Group Facilities. There are no
pending or, to the Knowledge of Xxxxxxx, Threatened zoning, condemnation or
eminent domain or other similar Proceedings against or affecting any of the Roll
Handling Group Facilities;
(ii) To Xxxxxxx'x Knowledge, the buildings,
improvements, structures, and building systems (including, without limitation,
electrical, gas, plumbing, piping, steam, waste and HVAC systems) included in
the Roll Handling Group Facilities are in good operating condition and repair,
subject to ordinary wear and tear, and are adequate for the uses to which they
are being put, and none of such buildings, improvements, structures, or building
systems is in need of maintenance or repairs except for ordinary routine
maintenance and repairs that are not material in nature or cost;
(iii) To Xxxxxxx'x Knowledge, there are no
outstanding written recommendations which have not since been implemented by any
of the Roll Handling Group's or Xxxxxxx Technology's, Xxxxxxx Amal's, Xxxxxxx
Asia's or Xxxxxxx Enkel's workers' compensation, property/casualty or other
insurance carriers or any of their respective boards of fire underwriters or
other body exercising similar function since July 1, 1999, in any such case
requiring or recommending any repairs or other work be done at either the Amal
Facility or the Shanghai Facility. Xxxxxxx Technology has furnished or made
available to MEGTEC complete and accurate copies of any such written
recommendation
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provided to either the Roll Handling Group or Xxxxxxx Technology since July 1,
1999, all of which are listed in the Schedules or Supplements to this Agreement;
(iv) The Roll Handling Group Facilities are serviced
with utilities which are adequate for the continuation by MEGTEC and any
Designated Purchaser of the Roll Handling Business as conducted through the date
hereof and there is no pending or, to the Knowledge of Xxxxxxx, Threatened
curtailment in any such utility service; and
(v) The Roll Handling Group Facilities are used
exclusively by the Roll Handling Group for the Roll Handling Business, and the
Roll Handling Group does not conduct any other business or operations at the
Roll Handling Group Facilities. Except for the leases for the Rockford Facility,
Amal Facility and the Shanghai Facility, which are set forth in SCHEDULE
6.12(a), Xxxxxxx Technology, Xxxxxxx Asia and the Roll Handling Group are not
parties to any recorded or unrecorded leases, subleases, easements, licenses,
concessions, options or other agreements, written or oral, with respect to the
Rockford Facility, Amal Facility or the Shanghai Facility. There are no Persons
(A) except Xxxxxxx Enkel in possession of, occupying or using the Rockford
Facility, (B) except Xxxxxxx Xxxx in possession of, occupying or using the Amal
Facility or (C) except Xxxxxxx Printing in possession of, occupying or using the
Shanghai Facility.
SECTION 6.13. PERSONAL PROPERTY LEASES. Except pursuant to the Personal
Property Leases and Retained Leases, no machinery, equipment, vehicles, office
furniture or other personal property located at any of the Roll Handling Group
Facilities or elsewhere is leased from any third party. True and correct copies
of the Personal Property Leases and Retained Leases have been furnished by
Xxxxxxx Technology to MEGTEC and are set forth on SCHEDULE 6.13. To Xxxxxxx'x
Knowledge, neither the Roll Handling Group nor any of the other parties to such
leases are in default with respect to any of the Personal Property Leases or any
Retained Leases.
SECTION 6.14. TAXES. In respect of the Roll Handling Group, the
Purchased Assets, the Retained Assets and the Roll Handling Business and
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except as set forth in SCHEDULE 6.14: (i) all Tax Returns required to be filed
with any Taxing Authority have been filed in accordance with all Legal
Requirements; (ii) as of the time of such filing, such Tax Returns were prepared
in accordance with the appropriate books and records and correctly reflect the
facts set forth in such books and records regarding the income, business,
assets, operations, activities and status of the Roll Handling Business, and any
other material information required to be shown therein; (iii) all Taxes owed
for which payment was due have been paid (as shown on such Tax Returns) or
adequately reserved therefor, except any such amounts being contested in good
faith; (iv) there is no audit, action, suit, proceeding or investigation now
pending, or to Xxxxxxx'x Knowledge, Threatened against or with respect to any
Tax; (v) there are no Liens for Taxes upon the Purchased Assets or the Retained
Assets; (vi) no deficiency for any Tax or claim for additional Taxes by any
Taxing Authority has been assessed or is pending, or to the Knowledge of
Xxxxxxx, is Threatened; and (vii) there is no extension or waiver of the
limitation period applicable to any Tax or Tax Return.
Any transfer taxes (other than the stamp tax referred to in Section
8.10 hereof) that may be payable as a result of the transactions contemplated by
this Agreement, including the purchase and sale of the Amal Facility, the CS
Printing Shares, the Purchased Assets and/or retention of the Retained Assets,
are the responsibility of and will be paid by Xxxxxxx Technology, Xxxxxxx Xxxx
or Xxxxxxx Asia, as the case may be.
SECTION 6.15 LEGAL PROCEEDINGS.
(a) Except as set forth in SCHEDULE 6.15 (a), there is no
pending or, to the Knowledge of Xxxxxxx, Threatened Proceedings by or against
the Roll Handling Group or any director or officer of the Roll Handling Group,
or Xxxxxxx Technology, Xxxxxxx Sweden, CS Printing or Xxxxxxx Asia in any such
instance arising out of or relating to either the Roll Handling Business, the
Assumed Obligations, the Continuing Obligations, the Purchased Assets or the
Retained Assets. To Xxxxxxx'x Knowledge, no event has occurred or circumstance
exists
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that may give rise to or serve as a basis for the commencement of any such
Proceedings.
(b) SCHEDULE 6.15(b) lists each Proceeding to which the Roll
Handling Group, Xxxxxxx Technology, Xxxxxxx Sweden or Xxxxxxx Asia in any such
instance arising out of, or relating to, either the Roll Handling Business, the
Assumed Obligations, Continuing Obligations, the Purchased Assets or the
Retained Assets, has been subject since July 1, 1998 that: (i) involved an
alleged violation of any Legal Requirement; (ii) involved personal injury or
property damage alleged to have resulted from products sold by the Roll Handling
Group; (iii) involved an allegation of infringement, misappropriation or
violation of or conflict with the Intellectual Property rights of any Person;
(iv) involved injuries or illnesses that are reportable under any Legal
Requirement; or (v) involved a fine or penalty imposed or sought to be imposed
by a Governmental Authority.
SECTION 6.16. ORDERS.
(a) Except for Orders of general application, SCHEDULE 6.16(a)
sets forth each order (where service has been received), decree, award,
decision, injunction (where service has been received), judgment, judicial
ruling, subpoena (where service has been received), or verdict of any
Governmental Authority or arbitrator (an "Order") to which the Roll Handling
Group is a party or otherwise bound, either relating to or arising out of the
Roll Handling Business, the Assumed Obligations, Continuing Obligations or any
of the Purchased Assets or Retained Assets (a "Listed Order") and, to the
Knowledge of Xxxxxxx, no such other Order is Threatened;
(b) To the Knowledge of Xxxxxxx, no officer, director,
employee, agent or consultant of the Roll Handling Group is subject to any Order
that prohibits such officer, director, employee, agent or consultant from
engaging in or continuing any conduct, activity or practice presently being
carried out which in any manner relates to either the Roll Handling Business,
the Assumed Obligations, Continuing Obligations, the Purchased Assets or the
Retained Assets;
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(c) The Roll Handling Group is, and at all times in the prior
three (3) years has been, in full compliance with all of the terms and
requirements of each Listed Order;
(d) No event has occurred or circumstance exists that may
reasonably be expected to constitute or result in (with or without notice or
lapse of time) a violation of or failure to comply with any term or requirements
of any Listed Order; and
(e) Neither Xxxxxxx Technology, Xxxxxxx Sweden, Xxxxxxx Asia
nor the Roll Handling Group has received in the prior three (3) years any notice
from any Governmental Authority or any other Person regarding any actual,
alleged, or potential violation by the Roll Handling Group of any Listed Order.
SECTION 6.17. COMPLIANCE WITH LEGAL REQUIREMENTS. Except as set forth
in SCHEDULE 6.17, with respect to the Roll Handling Business, the Assumed
Obligations, the Continuing Obligations, the Purchased Assets and the Retained
Assets:
(a) The Roll Handling Group is, and at all times since July 1,
1998 has been, in substantial compliance with applicable Legal Requirements and
no event has occurred or circumstance exists that (with or without notice or
lapse of time) (i) may constitute or result in a material violation by the Roll
Handling Group of, or a material failure on the part of the Roll Handling Group
to materially comply with, any Legal Requirement; or (ii) may give rise to any
material obligation on the part of the Roll Handling Group to undertake, or to
bear all or a substantial portion of any cost of, any Legal Requirement
compliance;
(b) The Roll Handling Group has not received since July 1,
1998 any written notice from any Governmental Authority or any other Person
regarding (i) any actual, alleged, or potential violation of, or failure to
comply with, any Legal Requirement; or (ii) any actual, alleged, or potential
obligation on the part of the Roll Handling Group to undertake, or to bear all
or a substantial portion of the cost of, any Legal Requirement, compliance with
which has not been completed;
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(c) To the Knowledge of Xxxxxxx (i) there is no Legal
Requirement which is not currently applicable to the Roll Handling Group but
which, according to its provisions, will become applicable to the Roll Handling
Group and which is reasonably likely to have a Material Adverse Effect on the
Roll Handling Business, the Assumed Obligations, Continuing Obligations, the
Purchased Assets or the Retained Assets and (ii) there is no pending, proposed
or Threatened Legal Requirement which, if promulgated, is reasonably likely to
have a Material Adverse Effect; and
(d) the Roll Handling Group has not paid in the last three (3)
years, and there is no pending or, to the Knowledge of Xxxxxxx, Threatened fine
or penalty imposed or sought to be imposed by any Governmental Authority.
SECTION 6.18. PERMITS.
(a) SCHEDULE 6.18(a) contains a complete and accurate list of
all Listed Permits required by Legal Requirements and held by Xxxxxxx Xxxx and
Xxxxxxx Printing in connection with the Roll Handling Business, the Assumed
Obligations, Continuing Obligations, the Purchased Assets and the Retained
Assets. Xxxxxxx Technology has delivered to MEGTEC correct and complete copies
of all Listed Permits.
(b) Except as set forth in SCHEDULE 6.18(b): (i) no Permit
other than the Listed Permits is necessary to lawfully conduct the Roll Handling
Business or to, own, use and operate the Purchased Assets or the Retained Assets
or to perform the Assumed Obligations or the Continuing Obligations the absence
of which could reasonably be expected to result in a Material Adverse Effect;
(ii) each Listed Permit is, to Xxxxxxx'x Knowledge, valid and in full force and
effect; (iii) the Roll Handling Group is, and at all times since the issuance of
any Listed Permit has been, in compliance in all material respects with the
terms and requirements of each Listed Permit; (iv) to Xxxxxxx'x Knowledge, no
event has occurred or circumstance exists that may (with or without notice or
lapse of time): (A) constitute or result, directly or indirectly, in a violation
of or a failure to comply with any term or requirement of any Listed Permit, or
(B) result, directly or indirectly, in the revocation, withdrawal, suspension,
cancellation, or termination
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of, or any modification to, any Listed Permit; (v) the Roll Handling Group has
not received in the prior three (3) years any written notice from any
Governmental Authority or any other Person regarding: (A) any actual, alleged,
or potential violation of any Permit which is or was held by it, or (B) any
actual, proposed, or potential revocation, withdrawal, suspension, cancellation,
termination of, or modification to any Permit which is or was held by it; (vi)
to Xxxxxxx'x Knowledge, all filings, notices, reports and other submissions
required to have been made with respect to the Listed Permits have been duly
made on a timely basis with the appropriate Governmental Authority and all
applications and other submissions required to have been filed for the timely
renewal of the Listed Permits or the acquisition of any additional Permits
necessary for the operation of the Roll Handling Business have been duly filed
on a timely basis with the appropriate Governmental Authority; and (vii) the
Roll Handling Group has not received from any Governmental Authority any written
waiver of compliance with respect to any Listed Permit since July 1, 1998.
SECTION 6.19. ENVIRONMENTAL MATTERS.
(a) SCHEDULE 6.19(a) sets forth a complete and accurate list
of all Former Facilities in which Hazardous Substances were generated, treated,
stored or used within the last ten (10) years.
(b) SCHEDULE 6.19(b) contains a complete and accurate list of,
and Xxxxxxx Technology has delivered to MEGTEC true and complete copies of the
following: any environmental investigation report and audit report relating to
Hazardous Substances at the Roll Handling Group Facilities and any analysis and
test which discloses violations of Environmental Laws in connection with
Hazardous Substances at the Roll Handling Group Facilities, in each case, that
is in the possession of the Roll Handling Group and with respect to which, in
the case of Xxxxxxx Xxxx and the Amal Facility, Xxxxxxx has Knowledge.
(c) Except as set forth in SCHEDULE 6.19(c), and except in
respect of Hazardous Substances which have been fully remedied in compliance
with the Environmental Laws currently in effect or under circumstances that are
in compliance with Environmental Laws, currently in effect, to Xxxxxxx'x
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Knowledge, no Hazardous Substances: (i) are being or have been disposed of,
spilled, discharged, emitted, leaked or otherwise released in, on or under any
surface or subsurface soil or land strata, any surface or groundwater, or any
building or facility which is included within any of the Roll Handling Group
Facilities or Former Facilities or (ii) are Migrating or have Migrated onto or
from any of the Roll Handling Group Facilities or Former Facilities.
(d) The Roll Handling Group is not currently under any
contractual or other obligation to participate in, contribute or perform any
health study or any environmental investigation, audit, study, monitoring,
clean-up, abatement or remediation of any Hazardous Substances in the soil or
groundwater at any of the Roll Handling Group Facilities or Former Facilities,
and Xxxxxxx has no Knowledge of any information or facts indicating that it has
or may have any potential liability as a potentially responsible party or
otherwise, to so participate, contribute or perform in respect of any of the
Roll Handling Group Facilities or Former Facilities.
(e) Except as set forth on SCHEDULE 6.19(e), to Xxxxxxx'x
Knowledge, there are no, active or inactive, underground storage tanks,
underground piping or trenches, xxxxx fields, septic systems or waste treatment
or disposal facilities (including, without limitation, incinerators, landfills,
surface impoundments, thermal treatment units, open burning/open detonation
area) on, under or within the Roll Handling Group Facilities. Except as set
forth on SCHEDULE 6.19(e), to Xxxxxxx'x Knowledge, there are no polychlorinated
biphenyls or asbestos used, generated, treated, stored, disposed of, or
otherwise located at, in or under any of the Roll Handling Group Facilities.
(f) Xxxxxxx has no Knowledge of any information or facts
indicating that any Person, including any present or former Xxxxxxx Technology
or Roll Handling Group employee, may have impaired health or any sustained
injury as the result of any exposure to Hazardous Substances, non-hazardous
substances or hazardous conditions in connection with providing services to the
Roll Handling Group.
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(g) Neither the Roll Handling Group Facilities nor any of the
Former Facilities are listed or, to Xxxxxxx'x Knowledge, proposed for listings
under CERCLA, or on any similar list. Except as set forth in SCHEDULE 6.19(g),
there are no pending, or to the Knowledge of Xxxxxxx, Threatened,
investigations, enforcement actions, remedial actions or other Proceedings under
Environmental Laws against Xxxxxxx Technology or Xxxxxxx Asia (related to the
Roll Handling Group) or the Roll Handling Group or in respect of any of the Roll
Handling Group Facilities or any Former Facilities.
(h) Except as set forth in SCHEDULE 6.19(h), and without
limiting the foregoing, to Xxxxxxx'x Knowledge, there are no existing
conditions, circumstances, activities or practices in respect of any of the Roll
Handling Group Facilities which may reasonably be expected to interfere with or
prevent compliance after the Closing Time at any of the Roll Handling Group
Facilities with Environmental Laws in effect as of the Closing Time or which may
reasonably be expected to require repairs, construction or capital expenditures
at any of the Roll Handling Group Facilities to be in compliance with any
Environmental Laws in effect as of the Closing Time or otherwise give rise to
Xxxxxxx Technology or the Roll Handling Group having any investigative,
corrective or remedial liability obligation under any Environmental Laws in
effect as of the Closing Time.
SECTION 6.20. TITLE TO PROPERTIES; SUFFICIENCY OF ASSETS
(a) Except as set forth in SCHEDULE 6.20(a), the Roll Handling
Group has good, valid and marketable title to all of the Purchased Assets and
Retained Assets, as the case may be, free and clear of any and all Liens, except
Liens for taxes not yet due and payable, and by virtue of the deliveries made at
the Closing Time, MEGTEC or any Designated Purchaser will obtain good, valid and
marketable title to the Purchased Assets, and the CS Printing Shares, and CS
Printing will, as of the Closing Time, have good, valid and marketable title to
the ownership interest and shares of Xxxxxxx Printing, in each such instance,
free and clear of any and all Liens.
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(b) To the Knowledge of Xxxxxxx, there are no facts,
circumstances or conditions affecting the Purchased Assets or Retained Assets
(including, for avoidance of doubt, the Shared Intellectual Property) which are
reasonably likely to materially interfere with or otherwise materially restrict
the continued use thereof by MEGTEC, any Designated Purchaser or Xxxxxxx
Printing, as the case may be, after the Closing Time in the same manner used by
the Roll Handling Group prior to the Closing Time.
(c) The Purchased Assets and Retained Assets (including, for
avoidance of doubt, the Shared Intellectual Property) are adequate and
sufficient for, and, except for only the Excluded Assets and Transferred Assets,
constitute all of the assets, properties and rights used, available or held for
use or under development for use or necessary for use by or on behalf of the
Roll Handling Group to conduct the Roll Handling Business in substantially the
same manner as the same has been conducted prior to and through the date hereof
and through the Closing Time. Except for the property subject to the Personal
Property Leases, Real Estate Leases and Retained Leases and except as set forth
in SCHEDULE 6.20(c), there are no assets, properties or rights used or held for
use by the Roll Handling Group to conduct the Roll Handling Business as the same
was conducted from January 31, 2001 through the date hereof that are owned by
any Person other than the Roll Handling Group.
SECTION 6.21. PERSONAL PROPERTY. Except as set forth in SCHEDULE 6.21,
the Fixed Assets included in the Purchased Assets and Retained Fixed Assets
included in the Retained Assets conform in all material respects to all
applicable Legal Requirements, have been maintained in accordance with good
industry practice, are in good operating condition and repair, subject to
ordinary wear and tear, and are suitable in all material respects for the
purposes for which they are being been utilized by the Roll Handling Group and
none of such Fixed Assets or Retained Fixed Assets is in need of maintenance or
repairs except for ordinary routine maintenance and repairs that are not
material in nature or cost.
SECTION 6.22. INTELLECTUAL PROPERTY.
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(a) SCHEDULE 6.22(a) contains, with respect to the Roll
Handling Group and the Roll Handling Business, a complete and accurate list,
including all filings, applications and registrations, of the following
Intellectual Property interests:
(i) all United States and foreign patents (the
"Patents") and patent applications ("Patent Applications") currently held by the
Roll Handling Group describing for each Patent and Patent Application its title,
country of issue or pendency, patent or application number and filing and issue
date;
(ii) all United States and foreign trademarks, trade
names, service marks, service names, fictitious names, marks and logos, whether
or not registered, currently held or used by the Roll Handling Group (the
"Marks") describing for each registered Xxxx or Xxxx with registration pending
its name, country of registration or application, registration or application
number, filing date and renewal date;
(iii) all computer software currently used by the
Roll Handling Group, other than generally available "shrink wrap" personal
computer software which has not been modified; and
(iv) all agreements or other arrangements pursuant to
which any Intellectual Property of the Roll Handling Group is currently licensed
or sublicensed to it or is otherwise currently permitted to use any Intellectual
Property of any other Person (through non-assertion, settlement or similar
agreements or otherwise).
(b) SCHEDULE 6.22(b) contains, with respect to the Roll
Handling Group and the Roll Handling Business, a complete and accurate list of
all agreements or other arrangements in respect of which the Roll Handling Group
either currently licensed or sublicensed or since July 1, 1998 has licensed or
sublicensed to other Persons, any Business IP, or currently permits or since
July 1, 1998 has otherwise permitted other Persons to use Business IP (through
non-assertion, settlement or similar agreements or otherwise).
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(c) The Purchased Assets and Retained Assets include all
Intellectual Property used, available or held for use or under development for
use by or on behalf of the Roll Handling Group in the conduct of the Roll
Handling Business, including all technical data and knowledge gained during the
conduct by the Roll Handling Group of all cost-reimbursable contracts to which
Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx Printing either is currently or since
July 1, 1998 has been a party. Except as set forth in SCHEDULE 6.22(c), the Roll
Handling Group exclusively owns, free and clear of any and all Liens, or has the
exclusive right to exploit pursuant to an agreement or arrangement listed in
SCHEDULE 6.22(a), all of the Business IP and, except as set forth in SCHEDULE
6.22(a), no member of the Roll Handling Group is obligated to pay any royalty,
license fee or other amount to use any Business IP. Except as set forth in
SCHEDULE 6.22(c), to Xxxxxxx'x Knowledge, no Person is currently interfering
with, infringing upon, misappropriating, or otherwise coming into conflict with,
or since July 1, 1998 has interfered with, infringed upon, misappropriated or
otherwise come into conflict with, any Business IP.
(d) After the Closing, all Business IP will either be owned by
or available to MEGTEC or retained by Xxxxxxx Printing on the same terms and
conditions on which it was held by or available to the Roll Handling Group prior
to the Closing. In respect of the Business IP which is owned by the Roll
Handling Group, to Xxxxxxx'x Knowledge, there are no facts, acts, or failures to
act by the Roll Handling Group which occurred prior to, during or after any
filing, registration, pendency or issuance of any Patent, Patent Application,
registered Xxxx, or Xxxx registration application, that would make invalid or
unenforceable or negate the right to registration, issuance or exploitation
(including, without limitation, enforceability) of any of such items. To
Xxxxxxx'x Knowledge, no loss or expiration of any Business IP is pending or
Threatened except in accordance with its terms.
(e) To Xxxxxxx'x Knowledge, the Roll Handling Group, in the
conduct of the Roll Handling Business, is not infringing upon, misappropriating
or otherwise in conflict with, and has not since July 1, 1998 infringed upon,
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misappropriated or otherwise been in conflict with, the Intellectual Property
rights of any Person and no machine, composition, process, method or product
currently used, sold or proposed by the Roll Handling Group to be used or sold
in the conduct of the Roll Handling Business does so infringe, misappropriate or
conflict with the Intellectual Property rights of any Person. There is no
pending, or, to the Knowledge of Xxxxxxx, Threatened, Proceeding which (i)
challenges the rights of the Roll Handling Group in respect of any Business IP
or the validity or unenforceability of any Business IP, (ii) asserts that the
Roll Handling Group, in connection with the Roll Handling Business, is
infringing or otherwise in conflict with or violating the Intellectual Property
rights of any Person, or is required to pay any royalty, license fee, or other
amount, with regard to any Business IP, or (iii) claims that any default exists
under any agreement or arrangement listed in SCHEDULE 6.22(a). The Roll Handling
Group has not been subject to any such Proceeding since July 1, 1998 and, to
Xxxxxxx'x Knowledge, there is no valid basis for any such Proceeding.
(f) All of the Patents and Patent Applications are currently
in compliance with all applicable Legal Requirements in all material respects
(including, without limitation, payment of filing, examination, and maintenance
fees and proofs of working or use), and, to Xxxxxxx'x Knowledge, all Patents are
valid and enforceable. No Patent or Patent Applications has since July 1, 1998
been or is now involved in any interference, reissue, reexamination, opposition,
cancellation, invalidation or nullification proceeding and, to Xxxxxxx'x
Knowledge, no such proceeding is Threatened with respect to any Patent or Patent
Application. To Xxxxxxx'x Knowledge, there is no potentially interfering patent
or patent application of any other Person with respect to any Patent or Patent
Application.
(g) All registered Marks are currently in compliance with all
applicable Legal Requirements in all material respects (including the timely
post-registration filing of affidavits of use and incontestability and renewal
applications) and, to Xxxxxxx'x Knowledge, are valid and enforceable. No Xxxx
has since July 1, 1998 been or is now involved in any interference, opposition,
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invalidation, nullification or cancellation proceeding and, to Xxxxxxx'x
Knowledge, no such proceeding is Threatened with respect to any registered Xxxx.
To Xxxxxxx'x Knowledge, there is no potentially interfering trademark or service
xxxx or any application or registration therefore of any Person with respect to
any Xxxx.
(h) SCHEDULE 6.22(h)(1) sets forth a list of all former and
current employees, consultants and contractors of the Roll Handling Group who
provided services pertaining to the Roll Handling Business, the Purchased
Assets, the Retained Assets or inventing or development of Business IP who are
bound by an agreement with the Roll Handling Group pursuant to which such
employee, consultant or contractor assigned or agree to assign to the Roll
Handling Group any and all right, title and interest such employee, consultant
or contractor may have had in Intellectual Property conceived, invented,
authorized or developed by him, her or it in course of providing services for
the Roll Handling Group and are obligated to keep confidential and not disclose
or use the Business IP, except in the course of their employment by or
performing services since July 1, 1998 for the Roll Handling Group. Except as
set forth in SCHEDULE 6.22(h)(2), to Xxxxxxx'x Knowledge, no such employee,
consultant or contractor is in breach of any such agreement and no such former
employee, consultant or contractor to the Roll Handling Group is a supplier of
any similar services (whether as any employee, consultant or otherwise) to any
competitor of the Roll Handling Group.
(i) With respect to the Roll Handling Business, the Purchased
Assets and the Retained Assets, the Roll Handling Group has not indemnified
(which indemnification is currently in effect) any Person in respect of
infringement, interference, misappropriation or other conflict in respect of any
Intellectual Property.
(j) With respect to the Roll Handling Business, the Purchased
Assets and the Retained Assets, the Roll Handling Group has taken, since July 1,
1998, precautions believed by the Roll Handling Group to be adequate to protect
in all material respects the secrecy, confidentiality and value of its trade
secrets, know-how and confidential business and commercial information. With
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respect to Xxxxxxx Enkel only, the documentation relating to technical or
scientific trade secrets and know-how is current, accurate and sufficient in
detail and content to identify and explain it and to allow MEGTEC to manufacture
products currently (which for purposes of this Section 6.22(j) means since
January 1, 2000) being manufactured by Xxxxxxx Enkel as contemplated in this
Agreement without the reliance on knowledge or memory of any individual other
than those being offered employment pursuant to Section 9.01 hereof.
(k) Except as set forth in SCHEDULE 6.22(k), the computer
hardware and computer software currently used by the Roll Handling Group and
included in the Purchased Assets and Retained Assets has been maintained in all
material respects in accordance with industry practice, is in good working
order, subject to ordinary wear and tear, and suitable for the purposes for
which it is being utilized, is Y2K compliant, and performs in accordance with
the applicable specifications. Except as set forth in SCHEDULE 6.22(k), no
failure of any such software or hardware to perform in accordance with the
applicable specifications has materially disrupted the Roll Handling Business or
operations of the Roll Handling Group relating to the Roll Handling Business,
the Purchased Assets or the Retained Assets since July 1, 1998 and, to Xxxxxxx'x
Knowledge, there are no defects in such hardware or software which are
reasonably likely to continue to cause any such material disruptions.
SECTION 6.23. SHARED INTELLECTUAL PROPERTY.
(a) SCHEDULE 6.23(a) contains, with respect to the Roll
Handling Group and the Roll Handling Business, a complete and accurate list,
including all filings, applications and registrations, of the following Shared
Intellectual Property interests:
(i) all United States and foreign patents (the
"Shared Patents") and patent applications ("Shared Patent Applications")
currently held or used by the Roll Handling Group describing for each Shared
Patent and Shared Patent Application its title, country of issue or pendency,
patent or application number and filing and issue date;
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(ii) all United States and foreign trademarks, trade names, service
marks, service names, fictitious names, marks and logos, whether or not
registered, currently held or used by the Roll Handling Group (the "Shared
Marks") describing for each registered Shared Xxxx or Shared Xxxx with
registration pending its name, country of registration or application,
registration or application number, filing date and renewal date;
(iii) all computer software currently used by the Roll Handling
Group, other than generally available "shrink wrap" personal computer software
which has not been modified; and
(iv) all agreements or other arrangements pursuant to which the Roll
Handling Group currently has, or since July 1, 1998 has had, any Shared
Intellectual Property licensed or sublicensed to it or is otherwise currently
permitted to use any Shared Intellectual Property of any other Person (through
non-assertion, settlement or similar agreements or otherwise).
(b) The Purchased Assets and Retained Assets include all Shared
Intellectual Property used, held for use or under development for use by or on
behalf of the Roll Handling Group in the conduct of the Roll Handling Business.
Except as set forth in SCHEDULE 6.23(b), Xxxxxxx Technology exclusively owns
free and clear of all Liens or has the exclusive right to exploit pursuant to an
agreement or arrangement listed in SCHEDULE 6.23(a), all of the Shared
Intellectual Property and except as set forth in SCHEDULE 6.23(a), the Roll
Handling Group is not obligated to pay any royalty, license fee or other amount
to use any Shared Intellectual Property. To the Knowledge of Xxxxxxx, no Person
is currently interfering with, infringing upon, misappropriating or otherwise in
conflict with, or has since July 1, 1998 interfered with, infringed upon,
misappropriated or otherwise come into conflict with, any Shared Intellectual
Property.
(c) After the Closing, all Shared Intellectual Property will be owned
by or available to MEGTEC, any Designated Purchaser and Xxxxxxx Printing, as the
case may be, on a royalty free basis and otherwise on the same terms and
conditions on which it was held by or available to the Roll Handling
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Group in its conduct of the Roll Handling Business prior to the Closing. In
respect of the Shared Intellectual Property which is owned by Xxxxxxx Technology
or Xxxxxxx Asia, there are no facts, acts, or failures to act by Xxxxxxx
Technology or Xxxxxxx Asia which occurred prior to, during or after any filing,
registration, pendency or issuance of any Shared Patent, Shared Patent
Application, registered Shared Xxxx, or Shared Xxxx registration application,
that would make invalid or unenforceable or negate the right to registration,
issuance or exploitation (including, without limitation, enforceability) of any
of such items. To Xxxxxxx'x Knowledge, no loss or expiration of any Shared
Intellectual Property is pending or Threatened except in accordance with its
terms.
(d) There is no pending, or to the Knowledge of Xxxxxxx, Threatened,
Proceeding which (i) challenges the rights of Xxxxxxx Technology, Xxxxxxx Asia
or the Roll Handling Group in respect of any Shared Intellectual Property or the
validity or unenforceability of any of the Shared Intellectual Property, (ii)
asserts that the Roll Handling Group, in connection with the Roll Handling
Business, is infringing or otherwise in conflict with or violating the
Intellectual Property rights of any Person, or is required to pay any royalty,
license fee, or other amount with regard to any Shared Intellectual Property, or
(iii) claims that any default exists under any agreement or arrangement listed
in SCHEDULE 6.23(a). The Roll Handling Group has not been subject to any such
Proceeding since July 1, 1998 and, to Xxxxxxx'x Knowledge, there is no valid
basis for any such Proceeding.
(e) All of the Shared Patents and Shared Patent Applications are
currently in compliance with all applicable Legal Requirements in all material
respects (including, without limitation, payment of filing, examination, and
maintenance fees and proofs of working or use), and, to Xxxxxxx'x Knowledge, all
Shared Patents are valid and enforceable. No Shared Patent or Shared Patent
Applications has since July 1, 1998 been or is now involved in any interference,
reissue, reexamination, opposition, cancellation, invalidation or nullification
proceeding and to Xxxxxxx'x Knowledge, no such proceeding is Threatened with
respect to any Shared Patent or Shared Patent Application. To
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Xxxxxxx'x Knowledge, there is no potentially interfering patent or patent
application of any other Person with respect to any Shared Patent or Shared
Patent Application.
(f) All registered Shared Marks are currently in compliance with all
applicable Legal Requirements in all material respects (including the timely
post-registration filing of affidavits of use and incontestability and renewal
applications) and, to Xxxxxxx'x Knowledge, are valid and enforceable. No Shared
Xxxx has since July 1, 1998 been or is now involved in any interference,
opposition, cancellation, invalidation or nullification proceeding and, to
Xxxxxxx'x Knowledge, no such proceeding is Threatened with respect to any Shared
Xxxx. To Xxxxxxx'x Knowledge, there is no potentially interfering patent or
patent application of any other Person with respect to any Shared Xxxx.
Section 6.24. INSURANCE.
(a) SCHEDULE 6.24(a) lists (i) all policies of insurance which relate
to the Roll Handling Group regarding the Roll Handling Business, the Purchased
Assets and the Retained Assets and to which the Roll Handling Group (or Xxxxxxx
Technology, Xxxxxxx Sweden, or Xxxxxxx Asia relating to the Roll Handling Group)
is a party or under which the Roll Handling Group has been covered; and (ii) all
pending applications for policies of insurance pertaining to the Roll Handling
Group which relate to the Roll Handling Group regarding the Roll Handling
Business, the Purchased Assets or the Retained Assets.
(b) SCHEDULE 6.24(b) describes with respect to the Roll Handling Group:
(i) any self-insurance arrangement; (ii) any contract or arrangement, other than
a policy of insurance, for the transfer to or sharing with any Person of any
risk; and (iii) all obligations of the Roll Handling Group to third parties to
provide insurance with respect to the Roll Handling Business.
(c) SCHEDULE 6.24(c) sets forth, with respect to the Roll Handling
Group as relates to the Roll Handling Business, the Purchased Assets and the
Retained Assets, by year, for the current policy year and each of the three (3)
preceding policy years: (i) a summary of the loss experience under each policy;
(ii) a statement describing each claim under workers' compensation and
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under an insurance policy for an amount in excess of Ten Thousand Dollars
($10,000); and (iii) a statement describing the loss experience for all claims
that were self-insured, including the number and aggregate cost of such claims.
(d) With respect to the Roll Handling Business, the Purchased Assets
and the Retained Assets, except as set forth in SCHEDULE 6.24(d), to Xxxxxxx'x
Knowledge:
(i) All policies to which the Roll Handling Group is a party or that
provide coverage to the Roll Handling Group: (A) are valid and enforceable; (B)
are issued by an insurer that is financially sound and reputable; (C) taken
together, provide adequate insurance coverage for the Purchased Assets and the
Retained Assets and the operations of the Roll Handling Business; and (D) are
sufficient for compliance with all Legal Requirements, Customer Contracts,
Supplier Contracts, Other Contracts, Personal Property Leases, Real Estate
Leases, Retained Customer Contracts, Retained Supplier Contracts, Retained Other
Contracts and Retained Leases.
(ii) Neither Xxxxxxx Technology, Xxxxxxx Asia nor the Roll Handling
Group has received since July 1, 1998: (A) any written refusal of coverage or
any notice that a defense will be afforded with reservation of rights, or (B)
any written notice of cancellation that any insurance policy is no longer in
full force or effect or will not be renewed or that the issuer of any policy is
not willing or able to perform its obligations thereunder.
(iii) The Roll Handling Group, Xxxxxxx Asia and Xxxxxxx Technology
have paid all premiums due, and have otherwise performed all of their respective
obligations in all material respects, under each policy to which the Roll
Handling Group is a party or that provides coverage to the Roll Handling Group
or any director thereof.
(iv) The Roll Handling Group, Xxxxxxx Technology and Xxxxxxx Asia
have, since July 1, 1998, given notice to the appropriate insurer of all claims
that may be insured thereby that involve or relate to the Roll Handling Group.
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SECTION 6.25 EMPLOYEES.
(a) SCHEDULE 6.25(a) contains, as of May 31, 2001, and will as of the
Closing be updated by Xxxxxxx Technology to contain a complete and accurate list
for the Roll Handling Group of (i) all employees (the "Employees"), such
Employees' job title, salaries or hourly rates, and annual bonuses or other
payments paid since July 1, 2000, vacation entitlements, benefit plan
participation and credited service for benefit plan or any other purpose; (ii)
any employment contract or special arrangement with any Employees and (iii) all
personnel policies, manuals, employee handbooks, and similar materials
pertaining to any Employees. Except as set forth in SCHEDULE 6.25(a) or as
otherwise provided by any Legal Requirement which is also listed in SCHEDULE
6.25(a), there are no other forms of compensation paid to any such Employees.
Except as set forth in SCHEDULE 6.25(a), all Employees maintain offices at and
are employed out of the Roll Handling Group Facilities.
(b) Except as set forth in SCHEDULE 6.25(b), all Employees are actively
at work and no Employees are currently on a leave of absence, layoff,
suspension, sick leave, workers' compensation, short or long term disability,
family leave, military leave or otherwise not actively performing his or her
work during all normally scheduled business hours.
(c) Except as set forth in SCHEDULE 6.25(c), the Roll Handling Group is
not nor has it ever been a party to any collective bargaining or other labor
contract. Except as set forth in SCHEDULE 6.25(c), since July 1, 1998, the Roll
Handling Group has not been subject to and there is no existing, or, to the
Knowledge of Xxxxxxx, Threatened: (i) strike, slowdown, picketing, or work
stoppage; (ii) Proceeding relating to alleged violation of any Legal Requirement
pertaining to labor relations, employment or employee benefit matters, including
any charge or complaint filed by an Employee or union with the National Labor
Relations Board, the Equal Employment Opportunity Commission, Department of
Labor, the Occupational Health and Safety Administration or any similar or other
local, state, federal or foreign Governmental Authority; (iii) union
organizational or representation activity; or (iv) application for certification
as a collective bargaining agent in respect of the Roll Handling Group or any of
the Employees.
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(d) To the Knowledge of Xxxxxxx, no Employees are a party to, or are
otherwise bound by any confidentiality, noncompetition, or proprietary rights or
similar agreement with any former employer or other Person that in any way
restricts the ability of any of such Employees to provide services to the Roll
Handling Group in respect of any products, markets, customers or other areas
and, to the Knowledge of Xxxxxxx, no such Employees are in violation of any such
agreement.
(e) Except as set forth in SCHEDULE 6.25(e), no employee of the Roll
Handling Group whose annual W-2 wages exceeded Seventy Thousand Dollars
($70,000) has left the employ of the Roll Handling Group since January 1, 2000.
(f) Except as set forth in SCHEDULE 6.25(f), the provisions for wages
and salaries accrued on the Financial Statements are adequate for salaries and
wages, including accrued vacation and holiday pay, for the period up through the
date thereof, and the Roll Handling Group has accrued on its books and records
all obligations for wages and salaries and other compensation to its employees,
including, but not limited to, vacation and holiday pay and sick pay, and all
commissions and other fees payable to agents, salesmen and outside
representatives.
(g) Within the sixty (60) days prior to the date hereof, Xxxxxxx Enkel
has not engaged in any plant closing or mass layoff of employees requiring
notice to employees pursuant to the Worker Adjustment Retraining and
Notification Act of 1988 ("WARN"), as amended, or, in the case of Xxxxxxx Xxxx
and Xxxxxxx Printing, any similar state, local or foreign Legal Requirement.
SECTION 6.26 EMPLOYEE BENEFIT PLANS; ERISA.
(a) SCHEDULE 6.26(a) sets forth a list of each "employee pension
benefit plan" (as defined in Section 3(2) of ERISA in the case of Xxxxxxx Enkel,
or under any applicable Legal Requirement in the case of Xxxxxxx Xxxx and
Xxxxxxx Printing covering Employees and/or former employees of the Roll Handling
Group (the "Pension Plans"). SCHEDULE 6.26(a) hereto also sets forth a list of
each "employee welfare benefit plan" (as defined in Section 3(1) of ERISA)
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in the case of Xxxxxxx Enkel or under any applicable Legal Requirement in the
case of Xxxxxxx Xxxx and Xxxxxxx Printing maintained by the Roll Handling Group
covering Employees or former employees of the Roll Handling Group ("Welfare
Plans"). SCHEDULE 6.26(a) includes a list of all the Roll Handling Group's
employee benefit plans with respect to the Employees, including any and all
pension, savings, retirement, health, life insurance, disability, severance and
other employee benefit or fringe or welfare benefit plans, whether formal or
informal, maintained currently by the Roll Handling Group.
(b) Xxxxxxx Technology has delivered to or made available for review by
MEGTEC, true and complete copies of the summary plan descriptions pertaining to
the Pension Plans and Welfare Plans or, with respect to Pension Plans and
Welfare Plans for which summary plan descriptions are not required,
documentation which describes the benefits provided under such Pension Plans and
Welfare Plans.
(c) The Roll Handling Group does not have any plan or commitment either
under serious consideration or otherwise communicated to Employees to create any
additional benefit plans or welfare plans or to modify or change any existing
Pension Plan or Welfare Plan except, pursuant to a Legal Requirement, all of
which are disclosed in SCHEDULE 6.26(a).
(d) There are no multiemployer plans (as defined in ERISA Section
4001(a)(3)) with respect to Xxxxxxx Enkel to which the Roll Handling Group is or
has been required to make a contribution or other payment.
(e) Except as set forth in SCHEDULE 6.26(a) or as may be required by
any Legal Requirement which is also listed in SCHEDULE 6.26(a), the Roll
Handling Group has not promised or has any liability for providing health care
or other benefits to any Employees or any former Employee following the
termination of such individual's employment with the Roll Handling Group,
except, in the case of Employees of Xxxxxxx Enkel, as required by Part 6 of
Title I of ERISA ("COBRA").
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(f) The COBRA health care continuation rules have been complied with in
all material respects with respect to any Welfare Plan to which such rules
apply.
(g) Each Pension Plan and Welfare Plan listed in SCHEDULE 2.04(g)
related to Xxxxxxx Xxxx and each Pension Plan and Welfare Plan of Xxxxxxx
Printing has been qualified and maintained, operated and administered in
compliance with its terms and in compliance with all Legal Requirements.
(h) Neither the Roll Handling Group nor any of the Pension Plans or
Welfare Plans, nor any trust created thereunder, nor any trustee or
administrator thereof has engaged in a transaction which can be subject to
either a civil penalty assessed pursuant to ERISA Section 502(i) or an excise
tax imposed by Code section 4975 or pursuant to any other Legal Requirements.
(i) With respect to Xxxxxxx Xxxx and its employees, Xxxxxxx Xxxx (i)
has complied in all material respects with all Legal Requirements, rules and
regulations relating to employment, collective bargaining, working hours,
occupational safety and health, (ii) has duly paid all social security charges
and fees or charges pertaining to employee pensions (including but not limited
to SPP/ALECTA) for all its employees, (iii) has made sufficient provisions for
holiday pay and all records with respect to accrued holidays are correct, and
(iv) is not bound by or party to any agreement nor has Xxxxxxx Xxxx incurred any
liability for the provisions of benefits to any of its employees or former
employees other than as listed in SCHEDULE 6.26(i).
SECTION 6.27 CONTRACTS AND COMMITMENTS.
(a) SCHEDULE 6.27(a) contains a complete and accurate list, as of May
31, 2001, and will as of the Closing be updated by Xxxxxxx Technology to contain
a list of all contracts, agreements, licenses, purchase and sales orders,
arrangements, understandings, bids, quotations, proposals and commitments
(written or oral) to which the Roll Handling Group or CS Printing is a party or
by which the Roll Handling Group or CS Printing is bound (or in respect of bids,
quotations and proposals made by the Roll Handling Group or CS Printing, would
be bound if accepted by the Person to whom made) and which, in the case of
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any of the foregoing, either arise out of or relate to the Roll Handling
Business, the Purchased Assets or the Retained Assets and which also meet any of
the following criteria:
(i) which have a value in excess of One Hundred Thousand Dollars
($100,000) and (A) are not cancelable by the Roll Handling Group on ninety (90)
or fewer days notice without any liability, penalty or premium or (B) provide
for performance by the Roll Handling Group over a period of more than six (6)
months;
(ii) with any Related Person;
(iii) which, to Xxxxxxx'x Knowledge, provide for purchases of any
materials, equipment, services, supplies, or other items at prices in excess of
current market prices or is in excess of normal operating requirements over its
remaining term;
(iv) providing for payments or performance to the Roll Handling
Group or expenditure or performance by the Roll Handling Group which have a
value in excess of One Hundred Thousand Dollars ($100,000);
(v) prohibiting the Roll Handling Group from entering into any
market, selling to any Person or otherwise limiting the Roll Handling Group's
ability to compete;
(vi) in the nature of a distribution, franchise, agency, or sales
representative agreement;
(vii) in the nature of a partnership, shareholder, joint venture or
joint development agreement;
(viii) not entered into in the ordinary course of the Roll Handling
Business consistent with past practice which have a value in excess of Five
Thousand Dollars ($5,000);
(ix) providing for any retroactive pricing, refund, rebate, price
adjustment, or other financial settlement;
(x) granting a power of attorney;
(xi) in the nature of a guaranty or indemnity;
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(xii) pursuant to which a security interest or other Lien is granted
on any of the Purchased Assets, the Retained Assets, or the Roll Handling
Business or the rights of the Roll Handling Group relating to the Roll Handling
Business;
(xiii) pursuant to which the Roll Handling Group or Xxxxxxx
Technology acquired from any other Person any ongoing business or product line
which is included in the Roll Handling Business;
(xiv) in the nature of a performance bond, letter of credit or other
financial security or financing agreement;
(xv) with any Governmental Authority, including, without limitation,
in respect of any government grant, subsidy, allowance or assistance program,
loan; job creation, retention or retraining program; or any tax abatement,
reduction, exemption or benefit;
(xvi) pursuant to which any material item of machinery, software,
composition, process, design or method being used by the Roll Handling Group was
researched, developed or invented by or with any Person;
(xvii) providing for the consignment of any goods to or from any
Person; or
(xviii) providing for the lease, license or use of any real property
which is owned by other Persons or the lease, license or use of by other Persons
of real property owned or leased by the Roll Handling Group.
(b) All of the Customer Contracts, Supplier Contracts, Other Contracts,
Personal Property Leases, Real Estate Leases, Retained Customer Contracts,
Retained Supplier Contracts, Retained Other Contracts and Retained Leases are
valid and binding, in full force and effect in all material respects (assuming
that the other party or parties thereto in each such case has properly
authorized by all requisite corporate action (or, if not a corporation, by all
other requisite action) and has properly executed and delivered all of the
Customer Contracts, Supplier Contracts, Other Contracts, Personal Property
Leases, Real Estate Leases, Retained Customer Contracts, Retained Supplier
Contracts, Retained Other Contracts and Retained Leases which, to the Knowledge
of
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Xxxxxxx, is the case) and enforceable in accordance with their respective
provisions (except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, including the effect of
statutory and other laws regarding fraudulent conveyances and preferential
transfers, and subject to the limitations imposed by general equitable
principles regardless of whether such enforceability is considered in a
proceeding at law or in equity). Xxxxxxx Technology has delivered to MEGTEC
accurate and complete copies of all of the Customer Contracts, Supplier
Contracts, Other Contracts, Personal Property Leases, Real Estate Leases,
Retained Customer Contracts, Retained Supplier Contracts, Retained Other
Contracts and Retained Leases, including all amendments thereto, or a written
summary of the terms of any of the material oral Customer Contracts, Supplier
Contracts, Other Contracts, Personal Property Leases, Real Estate Leases,
Retained Customer Contracts, Retained Supplier Contracts, Retained Other
Contracts and Retained Leases.
(c) Neither Xxxxxxx Technology, Xxxxxxx Sweden, Xxxxxxx Asia nor the
Roll Handling Group has assigned, mortgaged, pledged or otherwise encumbered any
of its right, title or interest under any of the Customer Contracts, Supplier
Contracts, Other Contracts, Personal Property Leases, Real Estate Leases, the
Retained Customer Contracts, Retained Supplier Contracts, Retained Other
Contracts and Retained Leases.
(d) The Roll Handling Group is not, nor to the Knowledge of Xxxxxxx is
any other party thereto, in violation or default of or has repudiated or
disputed any provision of any Customer Contracts, Supplier Contracts, Other
Contracts, Personal Property Leases, Real Estate Leases, Retained Customer
Contracts, Retained Supplier Contracts, Retained Other Contracts and Retained
Leases and there has not occurred an event or condition which, with the passage
of time or giving or notice (or both) would constitute a violation or default of
any of the Customer Contracts, Supplier Contracts, Other Contracts and Personal
Property Leases, Real Estate Leases, Retained Customer Contracts, Retained
Supplier Contracts, Retained Other Contracts and Retained Leases other than in
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any such case such violations and defaults which do not entitle a party thereto
to terminate the affected agreement. To the Knowledge of Xxxxxxx, there are no
facts or circumstances which would reasonably indicate that the Roll Handling
Group or any other party will be or may be in violation or default with respect
to any of the Customer Contracts, Supplier Contracts, Other Contracts and
Personal Property Leases, Real Estate Leases or any of the Retained Customer
Contracts, Retained Supplier Contracts, Retained Other Contracts and Retained
Leases, subsequent to the date hereof or, that as a result of the transactions
contemplated hereby or for any other reason, any other party to any of the
Customer Contracts, Supplier Contracts, Other Contracts, Personal Property
Leases, Real Estate Leases, Retained Customer Contracts, Retained Supplier
Contracts, Retained Other Contracts and Retained Leases intends or is reasonably
likely to repudiate, amend, modify, rescind or terminate any of the Customer
Contracts, Supplier Contracts, Other Contracts, Personal Property Leases, Real
Estate Leases, Retained Customer Contracts, Retained Supplier Contracts,
Retained Other Contracts and Retained Leases.
(e) None of the Customer Contracts, Supplier Contracts, Other
Contracts, Personal Property Leases, Real Estate Leases, Retained Customer
Contracts, Retained Supplier Contracts, Retained Other Contracts and Retained
Leases are not being performed or are in breach or default because of the
applicability of a force majeure clause.
(f) Except as set forth in SCHEDULE 6.27(f), no Consent of any Person
is required under any of the Customer Contracts, Supplier Contracts, Retained
Customer Contracts and Retained Supplier Contracts in any such instance
involving in excess of One Hundred Thousand Dollars ($100,000) and, without
regard to any dollar limitation, any of the Other Contracts, Personal Property
Leases, Real Estate Leases, Retained Supplier Contracts, Retained Other
Contracts and Retained Leases as a result of or in connection with, and the
enforceability of any of the Customer Contracts, Supplier Contracts, Other
Contracts, Personal Property Leases, Real Estate Leases, Retained Customer
Contracts, Retained Supplier Contracts, Retained Other Contracts and Retained
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Leases will not be affected in any substantial manner by, the execution,
delivery or performance of this Agreement by Xxxxxxx Technology or the Roll
Handling Group or the consummation of the transactions contemplated hereby.
SECTION 6.28 STATUS OF BACKLOG. SCHEDULE 6.28 is a true and complete
list, as of May 31, 2001, and will as of the Closing be updated by Xxxxxxx
Technology to contain a list of all open customer orders of the Roll Handling
Group and all uncompleted jobs in progress of the Roll Handling Group. All such
Customer Contracts and Retained Customer Contracts and all Customer Contracts
and Retained Customer Contracts after the date hereof through the Closing Time
with a value in excess of One Hundred Thousand Dollars ($100,000), were or will
be entered into in the ordinary course of business and are or will be supported
by legally enforceable purchase orders.
SECTION 6.29 LOSS CONTRACTS. Except as set forth in SCHEDULE 6.29, to
Xxxxxxx'x Knowledge, in connection with the Roll Handling Business, the Roll
Handling Group is not a party to any contract, bid or offer to sell products or
to provide services to parties other than such contracts, bids and offers
entered into or made (i) in the ordinary course of business and (ii) at rates
which will not result in a loss for the Roll Handling Group for any customer
order determined on an order by order basis.
SECTION 6.30 PURCHASE COMMITMENTS. The Supplier Contracts and Retained
Supplier Contracts for materials, supplies, raw materials or other items to
which the Roll Handling Group in the conduct of the Roll Handling Business is a
party are not materially in excess of the customary requirements of the Roll
Handling Business or at a price materially in excess of current market prices
for similar items deliverable at the same time.
SECTION 6.31 BUSINESS CONDUCT. Except as set forth in SCHEDULE 6.31, to
Xxxxxxx'x Knowledge, neither the Roll Handling Group nor any Roll Handling Group
officer, director, employee or agent, nor persons acting under the authority of
any of the foregoing, in the conduct of the Roll Handling Business, or the use
and ownership of the Purchased Assets and the Retained Assets: (i) have made or
have been charged by any Governmental Authority with
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making, directly or indirectly, any domestic or foreign bribe, unlawful
political contribution, kickback, gift, payoff, rebate, influence payment or
other questionable or illegal payments (governmental or commercial) or (ii) have
maintained or permitted to exist any use of "off the books" bookkeeping, secret
accounts, unrecorded bank accounts, "slush" funds, falsified books, or any other
device that could have been or could be utilized to distort records or reports
of the true operating results and financial condition of the Roll Handling Group
or the Roll Handling Business.
SECTION 6.32 RELATIONSHIPS WITH RELATED PERSONS.
(a) Except as set forth in SCHEDULE 6.32(a), no Related Person of the
Roll Handling Group: (i) has or since July 1, 1999 has had any interest in any
asset, property or contract or other right or interest (whether tangible or
intangible), used in or pertaining to the Roll Handling Group or the Roll
Handling Business with a value in excess of Twenty-Five Thousand Dollars
($25,000); (ii) is the owner of or, since July 1, 1999, has owned (of record or
as a beneficial owner) an equity interest in excess of ten percent (10%) or any
other financial or profit interest with a value in excess of Twenty-Five
Thousand Dollars ($25,000) in any Person (other than portfolio investments in
public companies) that: (A) is or has been a customer of the Roll Handling Group
in its conduct of the Roll Handling Business or otherwise had business dealings
with the Roll Handling Group in its conduct of the Roll Handling Business, (B)
had a financial interest in any contract or other transaction with the Roll
Handling Group in its conduct of the Roll Handling Business, with the exception
of any employment contract with any of the Roll Handling Group, or (C) engaged
in competition with the Roll Handling Group in its conduct of the Roll Handling
Business; or (iii) has, to the Knowledge of Xxxxxxx, any claim against the Roll
Handling Group in its conduct of the Roll Handling Business.
(b) Set forth in SCHEDULE 6.32(b), is a list of each Affiliate of the
Roll Handling Group that has within the prior two (2) years provided goods,
services or support to the Roll Handling Group in its conduct of the Roll
Handling Business, with the exception of services provided in connection with
such
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Affiliate's employment with the Roll Handling Group or any Affiliate of the Roll
Handling Group, together with a brief description of the type of such goods,
services or support so provided and a statement of the amount, if any, charged
to the Roll Handling Group for such goods, services or support.
SECTION 6.33 CUSTOMERS.
(a) Attached hereto as SCHEDULE 6.33(a) is a complete and accurate
list, as of May 31, 2001, and will as of the Closing be updated by Xxxxxxx
Technology to contain a list of all Significant Customers of the Roll Handling
Group with respect to the Roll Handling Business, stating for each of the years
ended June 30, 1999 and 2000 and the period July 1, 2000 to May 31, 2001, the
total revenue received from each such customer for each type of product
purchased during each of such years or such period.
(b) Except as set forth in SCHEDULE 6.33(b), since July 1, 1999 no
Significant Customer of the Roll Handling Group with respect to the Roll
Handling Business: (i) has stopped or stated in writing its intention to stop
purchasing products from the Roll Handling Group; (ii) has, to an extent greater
than five percent (5%), reduced or stated in writing any present or future
intention to materially reduce the amount of products it purchases from the Roll
Handling Group; or (iii) has otherwise materially changed or stated in writing
any present or future intention to materially change its relationship or
arrangements with the Roll Handling Group.
(c) Except as set forth in SCHEDULE 6.33(c), Xxxxxxx has no Knowledge
of any information or facts indicating that any Significant Customer, as a
result of the transactions contemplated hereby, intends or is likely to take any
of the actions listed in Sections 6.33(b)(i), (ii) or (iii) hereof.
(d) To Xxxxxxx'x Knowledge, the products sold by the Roll Handling
Group since July 1, 1998, in its conduct of the Roll Handling Business, have,
except for incidental warranty claims, been in conformity with all express and
implied warranties, all applicable specifications and contractual commitments
and all Legal Requirements and the products sold by the Roll Handling Group
since July 1, 1995, in its conduct of the Roll Handling Business, have been
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without defects in design. To Xxxxxxx'x Knowledge, except as set forth in
SCHEDULE 6.33(d), and except for incidental warranty claims in the ordinary
course of business, the Roll Handling Group has not received in the prior three
(3) years any claim from any customer of the Roll Handling Business that the
products purchased by it did not so conform and, to Xxxxxxx'x Knowledge, there
are no unresolved disputes with any customer except for such incidental claims.
To Xxxxxxx'x Knowledge, there is no valid basis for any unasserted claim for any
Damages in connection with defective product sold by the Roll Handling Group
since July 1, 1995 or arising out of any injury, disease or death of any person
or damages to property as a result of ownership, possession, or use of any
product sold by the Roll Handling Group since July 1, 1995.
(e) SCHEDULE 6.33(e) sets forth (i) the standard terms and conditions
of sale for the Roll Handling Group in its conduct of the Roll Handling Business
including, without limitation, any guaranties, warranties, indemnities, credits,
discounts and rebates and other commitments, given in the ordinary course to
customers of the Roll Handling Business; (ii) a list of all currently effective
warranty obligations of the Roll Handling Group which are outstanding; and (iii)
a list of the documents used by the Roll Handling Group, in its conduct of the
Roll Handling Business, which include such terms and conditions. Except as set
forth on SCHEDULE 6.33(e), all sales by the Roll Handling Group, in its conduct
of the Roll Handling Business, are made on such standard terms and conditions
and no customer of the Roll Handling Group has been given any rebates, payment
terms, warranties, guarantees, indemnities or other terms outside of such
standard terms and conditions.
SECTION 6.34 SUPPLIERS
(a) SCHEDULE 6.34(a) is a complete and accurate list, as of May 31,
2001, and will as of the Closing be updated by Xxxxxxx Technology to contain a
list of: (i) all suppliers of products and services to the Roll Handling Group,
in its conduct of the Roll Handling Business, that provided products or services
with a value in excess of One Hundred Thousand Dollars ($100,000) during any of
the years ended June 30, 1999 or 2000 or Ninety-One Thousand Dollars ($91,000)
for the period July 1, 2000 to May 31, 2001, (ii) any sole source supplier of
products or services during the years ended June 30, 1999 or 2000 or the period
July, 2000 to May 31, 2001, and (iii) any Person who has provided proprietary
technical, design, engineering or similar services with a value in excess of One
Hundred Thousand Dollars ($100,000) during any of the years ended June 30, 1999
or 2000 or Ninety-One Thousand Dollars ($91,000)
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for the period July 1, 2000 to May 31, 2001, (ii) any sole source supplier of
products or services during the years ended June 30, 1999 or 2000 or the period
July, 2000 to May 31, 2001, and (iii) any Person who has provided proprietary
technical, design, engineering or similar services with a value in excess of One
Hundred Thousand Dollars ($100,000) during any of the years ended June 30, 1999
or 2000 or Ninety-One Thousand Dollars ($91,000) for the period July 1, 2000 to
May 31, 2001 (collectively, "Significant Suppliers").
(b) Except as set forth in SCHEDULE 6.34(b), within the prior three (3)
years, no Significant Supplier has: (i) stopped or stated in writing its present
or future intention to stop being a supplier, (ii) reduced, to an extent greater
than five percent (5%), or stated in writing any present or future intention to
materially reduce or cease to be a supplier or (iii) otherwise materially
changed its relationship or arrangements with the Roll Handling Group or stated
in writing any present or future intention to do so.
(c) Except as set forth in SCHEDULE 6.34(c), Xxxxxxx has no Knowledge
of any information or facts indicating that any Significant Supplier, as a
result of the transactions contemplated hereby or for any other reason, intends
or is likely to take any of the actions listed in Sections 6.34(b) (i), (ii) or
(iii) hereof.
(d) To the Knowledge of Xxxxxxx, there are no unresolved claims against
or disputes with any Significant Supplier and the Roll Handling Group is not
contemplating the replacement of any current Significant Supplier.
(e) SCHEDULE 6.34(e) sets forth, with respect to the Roll Handling
Business, the standard terms and conditions of purchase by the Roll Handling
Group and sets forth the name of any Significant Supplier currently providing
goods and services other than upon such standard terms and conditions and a
description of the non-standard terms and conditions being extended.
SECTION 6.35 CS PRINTING. Except in connection with its formation on June
27, 2001, its ownership of Xxxxxxx Printing and as contemplated by this
Agreement, CS Printing has no assets other than the ownership interest and
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shares of Xxxxxxx Printing, has no liabilities or obligations whatsoever and
has not conducted any business nor has any employees.
SECTION 6.36 BROKERS; FINDERS. Neither Xxxxxxx Technology, Xxxxxxx
Sweden, Xxxxxxx Asia, CS Printing nor the Roll Handling Group nor any of their
respective officers, directors or employees, has engaged any broker or finder or
incurred or taken any action which may give rise to any liability against
MEGTEC, any Designated Purchaser or any of their respective Affiliates, the Roll
Handling Business, the Purchased Assets or the Retained Assets for any brokerage
fees, commissions, finders' fees or similar fees or expenses, except for X.X.
Xxxxxxxxxx & Co., Inc., in connection with this Agreement or the transactions
contemplated hereby. Except for the fees and expenses of X.X. Xxxxxxxxxx & Co.,
Inc. which shall be the sole responsibility of Xxxxxxx Technology, no investment
banking, financial advisory or similar fees have been incurred or are or will be
payable by either Xxxxxxx Technology, Xxxxxxx Sweden, Xxxxxxx Asia or the Roll
Handling Group in connection with this Agreement or the transactions
contemplated hereby.
SECTION 6.37 DISCLOSURE. Except as set forth in SCHEDULE 6.37:
(a) No representation or warranty of Xxxxxxx Technology, Xxxxxxx Xxxx,
Xxxxxxx Enkel or Xxxxxxx Asia in this Agreement, in any Exhibit or in the
Schedules contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements herein or therein, in light of
the circumstances in which they were made, not misleading.
(b) No Supplements given pursuant to Section 7.08 hereof will contain
any untrue statement of material fact or omit to state a material fact necessary
to make the statements therein or in this Agreement, in light of the
circumstances in which they were made, not misleading.
(c) To Xxxxxxx'x Knowledge, except as set forth in this Agreement, in
any Exhibit or in any Schedule or Supplement, there are no facts, circumstances,
events or conditions applicable to the Roll Handling Business which have, since
July 1, 1998, had or are reasonably likely to have had a
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Material Adverse Effect on the Roll Handling Business, the Purchased Assets or
the Retained Assets.
Article VII: PRE-CLOSING COVENANTS
SECTION 7.01 CONDUCT OF BUSINESS PRIOR TO THE CLOSING TIME. Each of
Xxxxxxx Technology, Xxxxxxx Xxxx, Xxxxxxx Asia and Xxxxxxx Enkel agrees that on
and after the date hereof and prior to the Closing Time, and except as otherwise
consented to by MEGTEC in its sole discretion in writing, Xxxxxxx Technology,
Xxxxxxx Xxxx, Xxxxxxx Asia and Xxxxxxx Enkel shall, with respect to the Roll
Handling Group, the Roll Handling Business, the Assumed Obligations, the
Continuing Obligations, the Purchased Assets and the Retained Assets:
(a) Operate only in the ordinary course of business consistent with
past practice;
(b) Not take or agree to take any action or do or permit to be done
anything which would be contrary to or in breach of any of the terms or
provisions of this Agreement or which would cause any of the representations or
warranties of Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx, Xxxxxxx Asia and
Xxxxxxx Enkel contained herein and in the Schedules and any Supplements to be or
become untrue or incorrect;
(c) Not enter into any contract, agreement, license, or other
commitment, arrangement or understanding other than in the ordinary course of
business consistent with the past practice;
(d) Not change any policy or practice regarding extension of credit,
purchases or sales of inventories, collection of receivables or payment of
accounts payable;
(e) Except in the ordinary course of business consistent with past
practice, not increase the amounts payable to or for the benefit of, or
committed to be paid to or for the benefit of any consultant, agent or
Employees, in any capacity, or in any benefits granted under any bonus, stock
option, profit
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sharing, pension, retirement, deferred compensation, insurance, or other direct
or indirect benefit plan, payment or arrangement made to, or for the benefit of,
any such consultant, agent or Employees in any capacity;
(f) Not make any change in the accounting principles or practices or
the method of application of such principles or practices;
(g) Not grant or suffer to exist any mortgage, pledge, lien, security
interest, charge or other encumbrance imposed or agreed to be imposed on or with
respect to any of the Purchased Assets or Retained Assets;
(h) Except for sales of inventory in the ordinary course of business
consistent with past practice, sell, lease, license or otherwise dispose of or
transfer, or enter into any agreement to sell, lease or otherwise dispose of or
transfer any of the Purchased Assets or Retained Assets; or defer or delay
maintenance or repair of any Purchased Assets or Retained Assets;
(i) Other than any satisfaction by performance in accordance with the
terms thereof in the usual and ordinary course of business, not modify, waive,
change, amend, release, rescind or terminate any material term, condition or
provision of any contract, agreement, license, instrument or arrangement to
which the Roll Handling Group is a party, or of which the Roll Handling Group is
a beneficiary, or of any material rights under any cause of action, judgment,
right of recovery, right of set-off, credit, rebate, indemnity or other claim
against other Persons, (other than in the ordinary course of business consistent
with past practice), in each case involving more than Fifty Thousand Dollars
($50,000);
(j) Use its reasonable efforts to preserve its business organization
intact, to keep available to itself the present service of the Employees, and to
preserve for itself the goodwill of its suppliers, customers and all other
Persons with whom business relationships exist; or
(k) Enter into any agreement to take any action inconsistent with (a)
through (j) above.
SECTION 7.02 NO PUBLIC ANNOUNCEMENT. Prior to the Closing, no Party
shall issue any press release or public announcement concerning this Agreement
or the transactions contemplated hereby without the prior approval of
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all of the other Parties, except as and to the extent that such Party shall be
obligated by law, in which case the other Party shall be so advised and the
Parties shall use their reasonable efforts to cause a mutually agreeable release
or announcement to be issued. Nothing in this Section 7.02 restricts or
prohibits the Roll Handling Group from providing any notice to Employees or any
Governmental Authority as contemplated by Section 7.09 hereof; provided,
however, Xxxxxxx Technology will give MEGTEC advance notice prior to any such
announcement.
SECTION 7.03 ACQUISITION PROPOSALS. Each of Xxxxxxx Technology, Xxxxxxx
Asia and the Roll Handling Group shall not, directly or indirectly, solicit or
encourage (including by way of furnishing any non-public information concerning
the Roll Handling Business, Assumed Obligations, Continuing Obligations,
Purchased Assets or the Retained Assets), or enter into any negotiations or
discussions concerning, any Acquisition Proposal. Xxxxxxx Technology will notify
MEGTEC promptly by telephone, and thereafter promptly confirm in writing, if any
such information is requested from, or any Acquisition Proposal is received by
Xxxxxxx Technology, Xxxxxxx Sweden, Xxxxxxx Asia or the Roll Handling Group. As
used in this Agreement, "Acquisition Proposal" shall mean any proposal received
prior to the Closing Time for a sale or other business combination involving the
Roll Handling Business or for the acquisition of, or the acquisition of a
substantial equity interest in, or a substantial portion of the Purchased
Assets, Retained Assets or Roll Handling Business other than the one
contemplated by this Agreement.
SECTION 7.04 RIGHT OF INSPECTION; ACCESS. Between the date of this
Agreement and the Closing Time, Xxxxxxx Technology, Xxxxxxx Asia and the Roll
Handling Group shall afford to MEGTEC, its counsel, accountants and other
representatives, during normal business hours, reasonable access to all of the
Roll Handling Group Facilities, equipment, blueprints, drawings, books, records,
contracts, commitments, personnel, accountants and agents of the Roll Handling
Group relating to the Roll Handling Business, the Assumed Obligations, the
Continuing Obligations, the Purchased Assets and the Retained Assets and shall
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provide MEGTEC with such other information with respect to the Roll Handling
Business, the Assumed Obligations, the Continuing Obligations, the Purchased
Assets and the Retained Assets as MEGTEC may reasonably request.
SECTION 7.05 CONSENTS AND APPROVALS. Each of Xxxxxxx Technology, Xxxxxxx
Asia, the Roll Handling Group, Sequa and MEGTEC will use reasonable efforts to
obtain the authorizations, Consents of Governmental Authorities and other
Persons that may be or become necessary for the performance of their respective
obligations pursuant to this Agreement and the consummation of the transactions
contemplated hereby and will cooperate fully with each other in seeking promptly
to obtain such authorizations, consents, orders and approval. No Party will take
any action that is likely to have the effect of delaying, impairing or impeding
the receipt of any required authorizations, consents, orders or approvals.
SECTION 7.06 EFFORTS TO CLOSE. Each of Sequa, MEGTEC, Xxxxxxx Technology,
Xxxxxxx Asia and the Roll Handling Group shall cooperate and use their
respective best efforts to promptly fulfill the conditions to closing set forth
in this Agreement over which they have control or influence and to complete the
transactions contemplated by this Agreement in a timely manner.
SECTION 7.07 INSURANCE. Between the date hereof and the Closing Time, the
Roll Handling Group and Xxxxxxx Technology, and Xxxxxxx Asia (with respect to
the Roll Handling Group), will maintain insurance of the kind and amount
existing on the date hereof. On and after the Closing, but only if the Closing
occurs, MEGTEC and any Designated Purchaser shall be entitled to receive the
proceeds of all claims for loss or destruction of, or damage to, any of the
Purchased Assets or Retained Assets for events occurring after the date hereof,
except to the extent Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx
Asia shall have, in a good and workmanlike manner, repaired or replaced the
Purchased Assets or Retained Assets which have been lost, destroyed or damaged,
in which case Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx Asia
shall be entitled to reimbursement from insurance proceeds for such repair or
replacement. After the Closing, the Roll Handling
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Group shall prosecute any insurance claims MEGTEC or any Designated Purchaser is
entitled to make with respect to any damage, destruction or other loss and
Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx, Xxxxxxx Asia and Xxxxxxx Enkel
shall reasonably cooperate with MEGTEC and any Designated Purchaser in
prosecuting such claims.
SECTION 7.08 UPDATING OF SCHEDULES. Between the date of this Agreement
and the Closing Time, Xxxxxxx Technology, Xxxxxxx Asia and the Roll Handling
Group shall promptly notify MEGTEC in writing of and (with respect to
representations and warranties) provide MEGTEC with a complete and accurate
supplement to the Schedule (a "Supplement") with respect to: (a) any condition
or circumstance which has or could reasonably be expected to have a Material
Adverse Effect on the business, financial condition or prospects of the Roll
Handling Business, the Assumed Obligations, the Continuing Obligations, the
Purchased Assets, the Retained Assets or the ability of Xxxxxxx Technology,
Xxxxxxx Asia or the Roll Handling Group to perform any of their respective
obligations under this Agreement or the Additional Documents; (b) any fact or
condition of which Xxxxxxx Technology, Xxxxxxx Asia or the Roll Handling Group
becomes aware that, with or without a lapse of time or giving of notice, or
both, constitutes or may constitute a breach of Xxxxxxx Technology's, Xxxxxxx
Enkel's, Xxxxxxx Amal's or Xxxxxxx Asia's representations and warranties as of
the date of this Agreement, or a breach of any such representation or warranty
had such representation or warranty been made as of the time of occurrence or
discovery of such fact or condition; and (c) any occurrence or condition that
would result in a breach by Xxxxxxx Technology, Xxxxxxx Xxxx, Xxxxxxx Asia or
Xxxxxxx Enkel or the Roll Handling Group of any of their respective covenants
under this Agreement or make the satisfaction of the conditions to Closing in
Article X hereof impossible or unlikely. If and to the extent that the Closing
occurs following delivery of the Supplements, Sequa or MEGTEC shall be deemed to
have consented to the Supplements and the corresponding representations,
warranties, covenants and agreements shall be deemed to be qualified,
supplemented or amended in accordance with the Supplements. If any
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Supplement discloses an event or condition which, by itself, or together with
any other events or conditions so disclosed, would reasonably be expected to
result in a Material Adverse Effect and, as a result, MEGTEC shall not consent
to such Supplement, then MEGTEC's sole remedy shall be the termination of this
Agreement pursuant to Section 12.03, without any further liability or obligation
of any Party hereunder.
SECTION 7.09 LABOR NOTICE. Prior to the Closing, Xxxxxxx Technology,
Xxxxxxx Xxxx, Xxxxxxx Asia and the Roll Handling Group shall give any notice to
Employees and any Governmental Authority required under any Legal Requirement,
including, in the case of Xxxxxxx Xxxx, the due discharge of its obligations
under the Swedish Act on Co-Determination in the Workplace, unless (i) with
respect to requirements of WARN, precluded from doing so by the timing of the
execution of this Agreement in relation to the Closing, in which case Xxxxxxx
Enkel shall give such notice to the extent possible under the circumstances and
shall defend and indemnify MEGTEC and any Designated Purchaser on account of any
Damages incurred by them and (ii) with respect to requirements of the Swedish
Act on Co-Determination in the Workplace, precluded from doing so by the timing
of the execution of this Agreement, in which case Xxxxxxx Xxxx shall give such
notice to the extent possible under the circumstances and shall defend and
indemnify MEGTEC and any Designated Purchaser on account of any Damages incurred
by them.
SECTION 7.10 TRANSFERRED ASSETS. On or prior to the Closing, the
Transferred Assets shall have been transferred by Xxxxxxx Printing to Xxxxxxx
Technology or Xxxxxxx Asia, as the case may be.
SECTION 7.11 CONFIDENTIALITY. Each of Sequa and MEGTEC hereby covenants
and agrees that at all times prior to the Closing Time, it shall and shall cause
its Affiliates to abide by the terms and conditions of that certain
Confidentiality Agreement dated September 5, 2000 by and between Sequa and
Xxxxxxx Technology.
SECTION 7.12 TRANSFER OF OWNERSHIP OF XXXXXXX PRINTING. Xxxxxxx Asia
shall use its best reasonable efforts to transfer all of the ownership
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interest and shares in Xxxxxxx Printing to CS Printing and to cause CS Printing
to obtain all licenses related thereto in accordance with all applicable Legal
Requirements.
SECTION 7.13 EMPLOYEE INTERVIEWS. Between the date of this Agreement and
the Closing Time, MEGTEC shall be entitled to interview employees of Xxxxxxx
Enkel and review their personnel files in order to enable MEGTEC to determine,
in MEGTEC's sole discretion, which employees of Xxxxxxx Enkel will be offered
employment by MEGTEC.
SECTION 7.14 CTC SPLICER REFURBISHMENT. Between the date of this
Agreement and the Closing Time, Xxxxxxx Enkel shall, at its sole cost and
expense, refurbish the CTC Splicer (P-2106) in such manner and to such extent as
to render the CTC Splicer (P-2106) in immediately saleable condition as of the
Closing Time.
Article VIII. POST-CLOSING COVENANTS
SECTION 8.01 USE OF THE XXXXXXX NAME. After the Closing, MEGTEC shall
have no right to use the "Xxxxxxx" name (other than in response to unsolicited
inquiries or in announcements of the occurrence of the Closing and other than
for a period of one (1) year after the Closing to refer to the Roll Handling
Business as formerly being owned by or its product lines associated with Xxxxxxx
Technology, Xxxxxxx Asia, Xxxxxxx Printing, Xxxxxxx Xxxx and Xxxxxxx Enkel),
that for a period of six (6) months after the Closing, MEGTEC shall have the
right to use any catalogues, sales and promotional materials and printed forms
that use the name "Xxxxxxx" and are included in the Purchased Assets or the
Retained Assets as of the Closing, or have been ordered prior to the Closing for
use in the Roll Handling Business, provided that within thirty (30) days
following the date of the Closing MEGTEC first clearly stamps or marks over the
name "Xxxxxxx" with the name "MEGTEC" and, in the case of products, within
forty-eight (48) hours of the Closing Time.
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SECTION 8.02. RESTRICTIVE COVENANTS.
(a) Non-Competition Covenant. For a period of five (5) years after the
Closing Time (the "Restricted Period"), each of Xxxxxxx Technology,
Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia and their respective
Affiliates shall not engage in, directly or indirectly, whether by itself
or as or through any shareholder, partner, joint venturer, agent,
salesman, consultant, officer and/or director of any Person or otherwise,
any or all of the following activities: (i) compete directly or
indirectly with the business of the Roll Handling Business, except any
business acquired by any of them in which the portion of business
activity which is directly or indirectly competitive with the business of
the Roll Handling Business comprises no greater than ten percent (10%) of
such business' revenue; (ii) solicit customers, business, patronage, or
orders for, or sell any products, or perform any services for, any
business which is, directly or indirectly, competitive with the Roll
Handling Business; or (iii) promote or assist, financially or otherwise,
or have an interest in any Person engaged in any business which is
competitive with the Roll Handling Business, except any business acquired
by any of them in which the portion of business activity which is
directly or indirectly competitive with the business of the Roll Handling
Business comprises no greater than ten percent (10%) of such business'
revenue; or (iv) engage or enter into any partnership, joint venture or
other business association with, any Person other than (A) any Excluded
Employee or (B) any officer or director or any member of the Roll
Handling Group who is also either an officer or director of Xxxxxxx
Technology or any of its Affiliates (other than any member of the Roll
Handling Group), who was, since January 1, 2001, or is at any time prior
to the Closing, an employee, sales, technical or service agent,
representative, officer or director of the Roll Handling Business or is
listed in SCHEDULE 8.02 for a period of twelve (12) months after such
person ceases or has ceased, for any reason, to be an employee,
representative, officer or director of the Roll Handling Group; or (v)
directly or indirectly solicit (excluding, however, for this purpose any
general solicitation) for employment or encourage to leave the employment
of MEGTEC or any Designated Purchaser any of the Employees who become
employed by MEGTEC or any Designated Purchaser or any of the
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Employees whose employment is retained by Xxxxxxx Printing. Notwithstanding the
foregoing, each of Sequa and MEGTEC acknowledges that Xxxxxxx Technology and/or
its Affiliates (other than any member of the Roll Handling Group) may
manufacture and sell non-automatic unwinds and rewinds solely and exclusively
for the short run, small format digital print material handling businesses, and
that such activities do not and will not constitute a violation of this Section
8.02(a) or competition for purposes of Section 8.02(a) or 8.02(b) hereof. In the
event of a violation of any provision of this Section 8.02(a), the running of
the Restricted Period shall be automatically tolled for and only for the period
of the violation (i.e., no part of the Restricted Period shall expire during the
period of such violation) and the Restricted Period shall continue to run when
such violation shall cease and shall expire after the Restricted Period has run
for a total of five (5) years from and after the Closing Time. For the avoidance
of doubt, nothing contained in this Section 8.02(a) shall restrict Xxxxxxx
Technology or any of its Affiliates from selling any of those products and in
those quantities which are delivered to Xxxxxxx Technology or any of its
Affiliates by MEGTEC or any Designated Purchasers after the Closing pursuant to
any Customer Contract or Retained Customer Contract with Xxxxxxx Technology or
any of its Affiliates and which are included in either the Purchased Assets or
Retained Assets.
(b) CONFIDENTIALITY. Each of Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx
Xxxx and Xxxxxxx Asia hereby covenants and agrees that at all times from and
after the Closing Time, it shall and shall cause its Affiliates to keep secret
and maintain in strictest confidence, and not use for its benefit or for the
benefit of others to compete directly or indirectly with the Roll Handling
Business, any confidential or proprietary information relating to the Roll
Handling Group, the Roll Handling Business, the Assumed Obligations, the
Continuing Obligations, the Purchased Assets and the Retained Assets, including,
without limitation, all know-how, trade secrets, formulas, bills of material,
names of customers or suppliers, contracts and arrangements with customers,
suppliers, joint venturers, or other third parties, pricing policies,
operational methods, marketing plans or strategies or product development
techniques or plans; no
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provision of this Section 8.02(b) shall prohibit the (i) use, other than during
the Restricted Period in a business which competes with the Roll Handling
Business, by Xxxxxxx Technology or its Affiliates of any such information that
(A) is or becomes generally available to the public other than as a result of
any breach of the provisions of this Agreement, (B) is commonly known to Persons
engaged in the Roll Handling Business or any similar industry or by individuals
employed by Persons engaged in such industry other than as a result of any
breach of the provisions of this Agreement, (C) is disclosed to Xxxxxxx
Technology or any of its Affiliates by any unrelated Person not under a duty of
confidentiality or (ii) disclosure by any Party of such information that is
required to be disclosed by such Party under any applicable law, regulation or
final order of any Governmental Authority or court having jurisdiction over such
Party or reasonably requested by any Governmental Authority (in which case such
Party shall promptly give notice to MEGTEC of such required disclosure,
describing in reasonable specificity and detail all information to be so
disclosed and all relevant circumstances with respect to such disclosure, to
enable MEGTEC to take any appropriate action in order to limit such required
disclosure, and shall provide all reasonable cooperation to MEGTEC in connection
with any such action).
(c) REMEDIES. It is mutually recognized and agreed that the Roll
Handling Business being acquired by MEGTEC and any Designated Purchaser
hereunder is conducted throughout the world and that the geographical scope, the
periods of restrictions and restraints imposed by this Section 8.02 are fair and
reasonable and required for the protection of MEGTEC and any Designated
Purchaser and a significant inducement for MEGTEC and any Designated Purchaser
to enter into this Agreement and the transactions contemplated hereby. It is
further recognized and agreed that (i) irreparable injury may result to MEGTEC
and any Designated Purchaser and their respective business and properties in the
event of a breach or threatened breach of this covenant by Xxxxxxx Technology,
Xxxxxxx Enkel, Xxxxxxx Xxxx, Xxxxxxx Asia or any of their respective Affiliates,
and (ii) the amount or extent of a breach or
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threatened breach of this covenant by Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx
Xxxx, Xxxxxxx Asia or any of their respective Affiliates and the amount or
extent of damages would be difficult if not impossible to ascertain and
therefore, that any remedy at law for any breach by any of them of this covenant
will be inadequate. Accordingly, without prejudice to the rights of MEGTEC and
any Designated Purchaser to also seek such damages or other remedies available
to it, MEGTEC and any Designated Purchaser shall be entitled to, and Xxxxxxx
Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia covenant that they will
not contest the appropriateness or availability of, temporary and permanent
injunctive relief without the necessity of proving actual damages to MEGTEC or
any Designated Purchaser by reason of any such breach or threatened breach.
Whenever used herein, MEGTEC or any Designated Purchaser shall be deemed to
include any successor or any other person or entity which may hereafter acquire
all or any portion of the aforesaid Roll Handling Business being acquired by
MEGTEC or any Designated Purchaser hereunder during the period of this covenant
not to compete.
(d) SEVERABILITY. If any provision of this Section 8.02 should be
adjudicated by a court of competent jurisdiction to be invalid or unenforceable,
such provision shall be deemed deleted herefrom with respect, and only with
respect, to the operation of such provision in the particular jurisdiction in
which such adjudication was made; provided, however, that to the extent any such
provision may be made valid and enforceable in such jurisdiction by limitations
on the scope of the activities, geographical area or time period covered,
Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx, Xxxxxxx Asia and Sequa and
MEGTEC agree that such provision instead shall be deemed limited to the extent,
and only to the extent, necessary to make such provision enforceable to the
fullest extent permissible under the laws and public policies applied in such
jurisdiction.
(e) COVENANTS INDEPENDENT. The covenants contained in this Section 8.02
shall be construed and enforced independently of each other and independently of
any other provision of this Agreement or any other
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understanding or agreement between the parties, and the existence of any claim
or cause of action of Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx
Asia against Sequa or MEGTEC, of whatever nature, shall not constitute a defense
to the enforcement of the covenants contained herein against Xxxxxxx Technology,
Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx Asia.
SECTION 8.03 TRANSITION AND FURTHER ASSURANCES.
(a) Each of Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx
Asia will not take any action that is designed or intended to have the effect of
discouraging any lessor, customer, supplier, licensor or other Person from
maintaining the same business relationships with MEGTEC, any Designated
Purchaser or Xxxxxxx Printing after the Closing as it maintained with the Roll
Handling Group in respect of the Roll Handling Business, Purchased Assets and
Retained Assets prior to the Closing. Each of Xxxxxxx Technology, Xxxxxxx Enkel,
Xxxxxxx Xxxx and Xxxxxxx Asia will refer all customer, supplier and other
inquiries relating to the Roll Handling Business to MEGTEC from and after the
Closing and otherwise reasonably cooperate with MEGTEC and any Designated
Purchaser in transitioning the Roll Handling Business to MEGTEC or any
Designated Purchaser.
(b) Each of Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx
Asia shall, at any time and from time to time after the Closing Time, upon the
reasonable request of MEGTEC or any Designated Purchaser and at Xxxxxxx
Technology's, Xxxxxxx Enkel's, Xxxxxxx Amal's or Xxxxxxx Asia's sole cost and
expense, as the case may be, execute, acknowledge and deliver or cause to be
executed, acknowledged and delivered all such further deeds, assignments,
transfers, conveyances, powers of attorney and assurances and take such other
action as may be reasonably required by MEGTEC or any Designated Purchaser for
the better assigning, transferring, granting, conveying, assuring and confirming
to MEGTEC or any Designated Purchaser, or to its successors and assigns, the
Roll Handling Business, the CS Printing Shares, the ownership interest in and
shares of Xxxxxxx Printing and any of the Purchased Assets and Retained Assets
or aiding and assisting in collecting and reducing to
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possession by MEGTEC and any Designated Purchaser any or all of the Purchased
Assets and Retained Assets, and to protect the right, title and interest of
MEGTEC and any Designated Purchaser therein and the enjoyment by MEGTEC and any
Designated Purchaser thereof, and otherwise to carry out the purpose and intent
of this Agreement.
(c) Sequa and MEGTEC shall, at any time and from time to time after the
Closing Time, upon the reasonable request of Xxxxxxx Technology, Xxxxxxx Enkel,
Xxxxxxx Xxxx or Xxxxxxx Asia and at Sequa's or MEGTEC's sole cost and expense,
as the case may be, execute, acknowledge and deliver or cause to be executed,
acknowledged and delivered all such further documents and assurances and take
such other action as may be reasonably required by Xxxxxxx Technology, Xxxxxxx
Enkel, Xxxxxxx Xxxx or Xxxxxxx Asia with respect to the Excluded Assets, Assumed
Obligations, Transferred Assets and Continuing Liabilities and otherwise to
carry out the purpose and intent of this Agreement.
SECTION 8.04 COOPERATION. After the Closing, each of Sequa, MEGTEC,
Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia will cooperate
with the other, and cause its directors, officers and employees to cooperate
with the other, in furnishing information, evidence, testimony, and other
assistance as may be reasonably requested by the other party in connection with:
(i) any pending or Threatened Proceeding resulting or arising from the
transactions contemplated by this Agreement or any fact, situation,
circumstance, status, condition, activity, practice, failure to act or
transaction relating to the Roll Handling Group or the Roll Handling Business,
the CS Printing Shares, the ownership interest in and shares of Xxxxxxx
Printing, the Assumed Obligations, the Continuing Obligations, the Excluded
Liabilities, the Indemnified Liabilities, the Purchased Assets, the Excluded
Assets, the Retained Assets or the Transferred Assets or (ii) compliance by the
other Party with any Legal Requirements pertaining to the Assumed Obligations,
the Continuing Obligations, the Excluded Liabilities, the Indemnified
Liabilities, the Purchased Assets, the Excluded Assets, the Retained Assets or
the Transferred Assets or
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the Roll Handling Business or (iii) the transfer of the Transferred Assets by
Xxxxxxx Printing to Xxxxxxx Technology or Xxxxxxx Asia, as the case may be.
Subject to Article XI hereof, the party requesting such assistance will pay or
reimburse the other party for all reasonable out of pocket expenses incurred by
the party providing such assistance in connection therewith, including, without
limitation, all travel, lodging, and meal expenses.
SECTION 8.05 ADMINISTRATION OF ACCOUNTS.
(a) All payments and reimbursements made in the ordinary course by any
Person in the name of or to the Roll Handling Group to the extent in connection
with or arising out of CS Printing, Xxxxxxx Printing, the Purchased Assets, the
Retained Assets, the Roll Handling Business or the Assumed Obligations and
Continuing Obligations received after the Closing Time shall be held by Xxxxxxx
Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx Asia in trust for the benefit
of MEGTEC or any Designated Purchaser, as the case may be, and, immediately upon
receipt by Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx, Xxxxxxx Asia or
their respective Affiliates, as the case may be, of any such payment or
reimbursement, Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx Asia
shall pay over to MEGTEC or any Designated Purchaser, as the case may be, the
amount of such payment or reimbursement without right of set-off.
(b) All payments and reimbursements made in the ordinary course by any
third party in the name of or to Sequa, MEGTEC, any Designated Purchaser or
Xxxxxxx Printing to the extent in connection with or arising out of the Excluded
Assets, the Transferred Assets, the Excluded Liabilities or the Indemnified
Liabilities received after the Closing Time shall be held by Sequa, MEGTEC, any
Designated Purchaser or Xxxxxxx Printing, as the case may be, in trust for the
benefit of Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx Asia, as
the case may be, and, immediately upon receipt by Sequa, MEGTEC, any Designated
Purchaser or Xxxxxxx Printing, as the case may be, of any such payment or
reimbursement, Sequa, MEGTEC or any Designated Purchaser shall pay, or shall
cause Xxxxxxx Printing to pay, over to Xxxxxxx
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Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx Asia, as the case may be, the
amount of such payment or reimbursement without right of set-off.
SECTION 8.06 ACCESS TO FORMER BUSINESS RECORDS. After the Closing,
Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia shall deliver
immediately to MEGTEC any and all books and records which remain in their
possession which are included in the Purchased Assets and Retained Assets. After
the Closing Time, Sequa and MEGTEC will afford duly authorized representatives
of Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia reasonable
access to financial, tax and other books and records retained by it which
constitute part of the Purchased Assets and Retained Assets for any reasonable
purpose, including, without limitation, litigation, financial and tax reporting
purposes, and will permit such representatives, at Xxxxxxx Technology's, Xxxxxxx
Enkel's, Xxxxxxx Amal's or Xxxxxxx Asia's expense, as the case may be, to make
abstracts from, or to take copies of any of such books and records, or to obtain
temporary possession thereof as may be reasonably required by Xxxxxxx
Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx or Xxxxxxx Asia. After the Closing Time,
Xxxxxxx Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia will afford
duly authorized representatives of MEGTEC and any Designed Purchaser reasonable
access to financial, tax and other books and records retained by it which
pertain to the Roll Handling Business, the Purchased Assets, the Retained
Assets, the Assumed Obligations and the Continuing Obligations, if any, which
are not included within the Purchased Assets and the Retained Assets for any
reasonable purpose including, without limitation, litigation and financial and
tax reporting, and will permit such representatives, at MEGTEC's expense, to
make abstracts from, or to take copies of any of such books and records, or to
obtain temporary possession thereof as may be reasonably required by MEGTEC.
Each party shall preserve and keep such books and records for a period of seven
(7) years following the Closing Time, or for any longer period that may be
required by any Governmental Authority or ongoing Proceeding; provided, that any
Party may dispose of any such books and records retained by it at any time
provided that
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prior to any such disposition within the seven (7) years after the Closing Time
a Party desiring to dispose of any such books and records shall give advance
notice to the other Party and afford the other Party the opportunity to take
possession or copy such books and records as the other Party may select.
SECTION 8.07 PRODUCT WARRANTY CLAIMS AND SERVICES. If any customer of the
Roll Handling Group makes a claim against MEGTEC, MEGTEC's Affiliates, any
Designated Purchaser or Xxxxxxx Printing for the repair, return or replacement
of, or the refund of all or any portion of the purchase price of any product
sold by the Roll Handling Group in its conduct of the Roll Handling Business
prior to the Closing Time, then MEGTEC shall, subject to its rights of dispute
resolution as provided in Section 11.11(a) hereof in the event of disagreement,
do whichever of the following is the least expensive alternative provided for
under the applicable warranty terms with the customer or applicable Legal
Requirements: (a) replace such product and pay packing, shipping and other
similar costs incident to such product replacement or (b) pay to such customer
or credit such customer's account an amount up to the purchase price of such
product together with packing and shipping or (c) repair such product and pay
packing, shipping or other similar costs incident to such product repair. In
performing such obligations, MEGTEC shall act reasonably and diligently and on a
normal business practice basis consistent with applicable warranty terms and
applicable Legal Requirements and shall use reasonable efforts to promptly
advise Xxxxxxx Technology of all customer disputes as to applicable warranty
terms. If the sum of the losses incurred or amounts paid by MEGTEC, MEGTEC's
Affiliates or any Designated Purchaser, exceeds the amount of the product
warranty reserve accrued and included in the Final Statement, then Xxxxxxx
Technology shall, promptly upon demand, reimburse MEGTEC for all amounts
expended by MEGTEC, MEGTEC's Affiliates, and any Designated Purchaser, as the
case may be, in excess of the amount of the product warranty reserve accrued and
included in the Final Statement; provided, however, that with respect to
MEGTEC's discharge of such warranty obligations, Xxxxxxx Technology shall be
charged and shall pay MEGTEC, MEGTEC's Affiliates or
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any Designated Purchaser the aggregate of (i) the sum of Fifty-Five Dollars
($55) per hour for direct labor, the actual out-of-pocket cost of travel and
MEGTEC's, MEGTEC's Affiliates' or any Designated Purchaser's actual costs of
material for such repairs plus (ii) the sum of Fifty-Five Dollars ($55) per hour
for direct labor and MEGTEC's, MEGTEC's Affiliates' or any Designated
Purchaser's actual costs of material for such replacements plus (iii) the actual
sum of any such refunds or credits. Xxxxxxx Technology shall, promptly upon
demand, reimburse MEGTEC for all such amounts expended by MEGTEC, MEGTEC's
Affiliates or any Designated Purchaser. MEGTEC shall maintain, in the ordinary
course, records which describe the nature of each such customer claim and
MEGTEC's response to such claim and shall make such records available to Xxxxxxx
Technology upon Xxxxxxx Technology's request. Any customer claim to the extent
seeking any remedy other than product repair, return or replacement or product
purchase price refund, which for purposes of this Agreement shall include (i)
any liabilities or obligations for consequential, incidental, liquidated,
punitive, indirect, special and similar damages (as well as lost profits and
other monetary amounts due to customers of the Roll Handling Group) whether
imposed by contract, Legal Requirement or otherwise, for goods and equipment
shipped prior to the Closing Time, or (ii) any extension by the Roll Handling
Group of the warranty periods set forth in SCHEDULE 6.34(e), shall be Excluded
Liabilities or Indemnified Liabilities and from and after the Closing Time,
neither MEGTEC, MEGTEC's Affiliates, any Designated Purchaser nor Xxxxxxx
Printing shall have any obligation or liability whatsoever therefor.
SECTION 8.08 UNCOLLECTED RECEIVABLES. Except for those Receivables or
Retained Receivables assigned zero value pursuant to the provisions of the
Accounting Instructions, MEGTEC agrees to use all commercially reasonable
efforts to collect the Receivables and Retained Receivables, such commercially
reasonable efforts to solely consist of calling the obligors of Receivables and
Retained Receivables which are past due and requesting payment; if necessary,
sending copies of past due invoices to the obligor and requesting payment; and,
if still necessary, sending letters to the
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obligors requesting payment of past due amounts; provided, that, neither MEGTEC,
any Designated Purchaser nor Xxxxxxx Printing nor any of their respective
Affiliates shall be under any obligation to commence litigation or institute
collection efforts through outside agencies to collect any Receivables or
Retained Receivables, compromise the amount of any Receivables or Retained
Receivables, advise the obligor of any Receivable or Retained Receivables
regarding the rights of MEGTEC to require Xxxxxxx Technology to repurchase
Receivables or Retained Receivables, in certain circumstances; and provided,
further, that the foregoing shall not require MEGTEC, any Designated Purchaser
or Xxxxxxx Printing to offset Receivables or Retained Receivables against
amounts due by or to MEGTEC, any Designated Purchaser or Xxxxxxx Printing to
discontinue doing business with any entity owing such Receivables or Retained
Receivables or to xxxx for interest or other charges on past due accounts.
MEGTEC shall notify Xxxxxxx Technology in writing every fifteen (15) days after
the end of each calendar month following the Closing, identifying all
outstanding Receivables and Retained Receivables which are not collected in full
by MEGTEC at such date. In the event and to the extent that, notwithstanding
such collection efforts by MEGTEC, any Designated Purchaser or Xxxxxxx Printing,
any Receivables or Retained Receivables are not collected in full by MEGTEC, any
Designated Purchaser or Xxxxxxx Printing within one hundred twenty (120) days
following the Closing Time, MEGTEC shall have the right, exercisable by notice
to Xxxxxxx Technology within thirty (30) days commencing on the final day of
that one hundred twenty (120) day period, to require Xxxxxxx Technology to
repurchase from MEGTEC, any Designated Purchaser or Xxxxxxx Printing within ten
(10) Business Days following receipt of timely notice from MEGTEC, for cash, any
such uncollected Receivables or Retained Receivables at the outstanding amount
thereof, whether or not then due, and without discount (against receipt by
Xxxxxxx Technology of a written assignment on a non-recourse basis as to
collectability) of such Receivables or Retained Receivables from MEGTEC, any
Designated Purchaser or Xxxxxxx Printing, as the case may be. Unless (i) subject
to a bona fide dispute by the obligor, (ii) a designation
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initiated by the obligor, or (iii) as a result of MEGTEC, any Designated
Purchaser or Xxxxxxx Printing refusing to sell to the obligor except on a C.O.D.
basis, all payments received by MEGTEC, any Designated Purchaser or Xxxxxxx
Printing after the Closing Time shall be applied first against such obligor's
Receivable or Retained Receivable included in the Purchased Assets or Retained
Assets.
SECTION 8.09 RESTORATION OBLIGATIONS FOR ROCKFORD FACILITY.
Notwithstanding any provision of this Agreement to the contrary (including,
without limitation, the definitions of Assumed Obligations, Continuing
Obligations, Excluded Liabilities and Indemnified Liabilities), Xxxxxxx
Technology, Xxxxxxx Enkel, Xxxxxxx Xxxx and Xxxxxxx Asia shall be solely
responsible for and defend and indemnify the MEGTEC Entities and hold them
harmless from and against, any costs and expenses relating to any repair and
restoration obligations arising under the terms and conditions or otherwise
relating to or arising out of all of the lease agreements pertaining to the
Rockford Facility, including Environmental Losses and Damages arising out of or
relating to Environmental Laws. For the avoidance of doubt, the Parties
acknowledge that Sequa, MEGTEC and their respective Affiliates at no time and in
no manner were involved in the use, occupancy, operation or shut down of the
Rockford Facility and neither Sequa, MEGTEC nor their respective Affiliates
shall be deemed to succeed to the liabilities under Environmental Laws, if any,
arising out of the Rockford Facility.
SECTION 8.10 TRANSFER TAX. MEGTEC or the Designated Purchaser shall pay
the stamp tax (Sw. "stampelskatt") arising out of the sale of the owned real
estate included within the Amal Facility and designated as "Xxxxxxxxxxxx 0"
Xxxx, Xxxxxx.
SECTION 8.11 REMOVAL OF PURCHASED ASSETS FROM THE ROCKFORD FACILITY.
Xxxxxxx Enkel shall, at its sole cost and expense, during the sixty (60) days
following the Closing Time or until ten (10) days following such later date as
Xxxxxxx Enkel has completed all of its undertakings as provided in Section 8.12
hereof, provide commercially reasonable assistance and the necessary personnel
for purposes of crating, packaging and gathering those Purchased Assets located
at the Rockford Facility on the loading dock of the Rockford
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Facility. All costs for removal, including the cost of freight for removal, of
such Purchased Assets from the loading dock of the Rockford Facility shall be at
MEGTEC's sole cost and expense. Without limiting the generality of the
foregoing, such assistance shall include the following:
(a) Xxxxxxx Enkel shall, at its sole cost and expense, gather, package,
crate and otherwise prepare the Inventories included in such Purchased Assets
and not otherwise used in connection with Section 8.12 hereof, to be shipped
from the Rockford Facility's loading dock. MEGTEC shall provide Xxxxxxx Enkel
with instructions regarding the timing of when this is to occur, but in any
event no later than sixty (60) days following Xxxxxxx Enkel's completion of its
obligations pursuant to Section 8.12 hereof. MEGTEC shall be responsible for all
freight, transportation and other costs with respect to removal of such
Inventories from the Rockford Facility's loading dock and the delivery thereof
to the destination designated by MEGTEC;
(b) Upon the completion of those Designated Enkel Customer Contracts to
be completed by Xxxxxxx Enkel pursuant to Section 8.12 hereof, Xxxxxxx Enkel
shall at its sole cost and expense, dismantle, crate and otherwise prepare for
shipment, the Fixed Assets included within such Purchased Assets for transfer to
MEGTEC. MEGTEC shall be responsible for all freight, transportation and other
costs with respect to the removal of such Fixed Assets from the Rockford
Facility's loading dock and the delivery thereof to the destination designated
by MEGTEC;
(c) Subsequent to the Closing Time, Xxxxxxx Enkel shall provide
reasonable assistance to MEGTEC with assembling, labeling and otherwise
identifying equipment drawing packages, engineering files, customer order files
and other Business Records included within such Purchased Assets for shipment
from the Rockford Facility to the destination designated by MEGTEC. MEGTEC shall
be responsible for all freight, transportation and other costs with respect to
the removal of all such records from the Rockford Facility's loading dock and
the delivery thereof to the destination designated by MEGTEC. MEGTEC shall pay
Xxxxxxx Enkel Thirty-Five Thousand Dollars ($35,000) therefor; and
000
000
(x) Subsequent to the Closing Time, Xxxxxxx Enkel shall provide
reasonable assistance to MEGTEC with assembling, labeling and otherwise
identifying service, accounting, customer, personnel, purchasing and all other
files and records included within such Purchased Assets for shipment from the
Rockford Facility to MEGTEC's designated location. MEGTEC shall be responsible
for all freight, transportation and other costs with respect to the removal of
all of such records from the Rockford Facility's loading dock and the delivery
thereof to the destination designated by MEGTEC. MEGTEC shall pay Xxxxxxx Enkel
Fifteen Thousand Five Hundred Dollars ($15,500) therefor.
SECTION 8.12 TRANSITION AND TERMINATION OF CERTAIN SERVICES. From and
after the Closing Time, Xxxxxxx Enkel shall provide, and Xxxxxxx Technology
shall cause Xxxxxxx Enkel to provide, MEGTEC with all commercially reasonable
assistance and services with respect to various manufacturing and administrative
matters in order to effectively and efficiently transition all such activities
from Xxxxxxx Enkel and those Purchased Assets located at the Rockford Facility
to MEGTEC. Such assistance and services shall be provided in accordance with
this Agreement, and shall include, without limitation, the following:
(a) Xxxxxxx Enkel shall complete the manufacture of all in-process
items covered by Customer Contracts as well as orders covered by Customer
Contracts which have not yet begun or which have been completed in part, in all
such cases pertaining to Xxxxxxx Enkel which are to be performed at the Rockford
Facility, as well as all bids and quotations of Xxxxxxx Enkel outstanding as of
the Closing Time which are accepted by the customer after the Closing Time. For
purposes of this Section 8.12, in-process equipment covered by Customer
Contracts or orders not yet begun but to be completed by Xxxxxxx Enkel pursuant
to Customer Contracts and bids and quotations outstanding as of the Closing Time
which are accepted by the customer after the Closing Time, includes the
completion of all equipment to be delivered or which, subject to customer
acceptance, may be delivered pursuant to such Customer Contracts
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and such bids and quotations outstanding as of the Closing Time, all as listed
on SCHEDULE 8.12 (collectively, the "Designated Enkel Customer Contracts");
(b) Xxxxxxx Enkel shall complete the manufacture of the equipment which
is the subject of the Designated Enkel Customer Contracts by first utilizing
those Inventories acquired by MEGTEC from Xxxxxxx Enkel, which as of the Closing
Time are located at the Rockford Facility or are in transit to the Rockford
Facility, if and to the extent such are available prior to ordering or otherwise
obtaining any such inventory items from any third party; provided that any and
all such inventories are included in either the specifications or bills of
materials under the applicable Designated Enkel Customer Contracts for the
related equipment model. If Xxxxxxx Enkel is required to order or otherwise
obtain any inventory from any third party, then Xxxxxxx Enkel shall forward to
MEGTEC, a list of items necessary to be obtained and MEGTEC shall, at its sole
cost and expense, make arrangements to procure such items;
(c) Xxxxxxx Enkel further agrees to use commercially reasonable efforts
to complete the manufacture of all such equipment in accordance with the
delivery requirements as specified in the applicable Designated Enkel Customer
Contracts or per Xxxxxxx Enkel's manufacturing schedule as of the Closing Time.
Xxxxxxx Enkel shall make available such manufacturing, office and warehouse
space and personnel at the Rockford Facility as may be necessary or required to
complete the manufacturing of all in-process equipment and equipment to be
provided pursuant to the Designated Enkel Customer Contracts. Delivery of all
such equipment shall be F.O.B the Rockford Facility. MEGTEC shall inform Xxxxxxx
Enkel of the delivery arrangements prior to the shipment of such equipment.
MEGTEC shall pay all freight, unloading charges and all costs of handling and
cartage from the Rockford Facility. Risk of loss or damage to the equipment in
transit shall be MEGTEC's sole responsibility and MEGTEC shall be responsible
for the filing of any and all related claims with freight carriers. MEGTEC shall
be responsible for the on-site rigging, erection, installation and start up of
all equipment completed by Xxxxxxx Enkel in accordance with this Section 8.12.;
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(d) The price to be paid by MEGTEC to Xxxxxxx Enkel for the completion
of each of the Designated Enkel Customer Contracts shall be Baldwin Enkel's
"Standard Costs" which, for purposes of this Section 8.12, shall mean Fifty-Five
Dollars ($55) per hour for direct labor for each respective equipment model,
reduced by the cost of any amounts for work-in-process and other Inventories
included in the Final Statement for each applicable Designated Enkel Customer
Contract and further reduced by any Supplier Contracts, the invoices for which
are paid by MEGTEC;
(e) Baldwin Enkel represents and warrants that with respect to all
equipment to be completed by Baldwin Enkel after the Closing Time pursuant to
this Section 8.12, Baldwin Enkel shall have good and marketable title to all
such equipment, free and clear of any and all Liens. Baldwin Enkel represents
and warrants that the equipment to be completed by Baldwin Enkel after the
Closing Time pursuant to this Section 8.12 shall conform to the applicable
Designated Enkel Customer Contracts, including all applicable specifications
contained therein, will be free from defects in materials and workmanship and
shall be manufactured in compliance with Legal Requirements and in a workmanlike
manner; and
(f) Baldwin Enkel further agrees to retain, at its sole cost and
expense, the services of all necessary accounting and other personnel employed
by Baldwin Enkel as of the date of this Agreement in order to enable MEGTEC to
prepare and deliver, in accordance with the provisions of Section 3.04 hereof,
that portion of the Final Statement which pertains to Baldwin Enkel.
SECTION 8.13 TRANSFER OF TRANSFERRED ASSETS. Baldwin Printing and MEGTEC
or the Designated Purchaser, as the case may be, shall at Baldwin Technology's
written request, take all actions necessary to transfer or assign any of the
Transferred Assets not assigned or transferred prior to or at the Closing Time
to Baldwin Technology or Baldwin Asia or any of their respective Affiliates, as
the case may be, within the sixty (60) day period following the Closing Time at
the sole cost and expense of Baldwin Technology, Baldwin Asia or any of their
respective Affiliates, as the case may be.
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SECTION 8.14 SUPPLY OF CERTAIN PRODUCTS. If Baldwin Technology or
any of its Affiliates so request for the period of five (5) years from and after
the Closing Time, MEGTEC and each Designated Purchaser, if any, shall sell, and
Sequa shall cause MEGTEC and each Designated Purchaser, if any, to sell, to
Baldwin Technology and its Affiliates the products described in SCHEDULE 8.14
that MEGTEC and/or any of its Affiliates are at the time commercially producing.
Such sales of such products shall be for prices and on such other terms and
conditions no less favorable to Baldwin Technology and its Affiliates than the
prices and other terms and conditions (including similar quantities, delivery
times, specifications, exclusivity arrangements and quality requirements) upon
which MEGTEC or the Designated Purchaser is at the time selling under similar
circumstances such products to original equipment manufacturers.
ARTICLE IX: EMPLOYMENT MATTERS
SECTION 9.01 OFFERS AND CONTINUATION OF EMPLOYMENT.
(a) At or prior to the Closing Time, (i) in the case of Baldwin Enkel
employees, MEGTEC will make offers of employment, effective as of the date of
Baldwin Enkel's completion of its undertakings pursuant to Section 8.12 hereof,
only with respect to such active Employees as determined by MEGTEC in its sole
discretion and who will be identified by MEGTEC after the date hereof and prior
to the Closing Time and who will be listed in EXHIBIT U hereto, (ii) in the case
of Baldwin Amal Employees, MEGTEC or its Designated Purchaser will make offers
of employment with respect to all Employees of Baldwin Amal as of the Closing
Time, and (iii) in the case of Baldwin Printing employees, MEGTEC or its
Designated Purchaser will cause Baldwin Printing to retain all employees,
subject, in each such case as to Employees of Baldwin Amal and Baldwin Printing,
to the requirements, if any, of applicable Legal Requirement, industry-wide
collectives and collective bargaining agreements. Employees of Baldwin Enkel who
accept such offer of employment with MEGTEC or any Designated Purchaser, as the
case may be, and all of the employees of Baldwin Amal who
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shall transfer to MEGTEC or any Designated Purchaser, as the case may be, by
operation of Swedish law and all Employees of Baldwin Printing, are hereinafter
referred to collectively as "Transferred Employees." Except as otherwise
required by any Legal Requirement, such offers to certain active Baldwin Enkel
and all Baldwin Amal Employees will, provide as follows: (A) hourly rates of pay
or semi-monthly salary and benefits substantially similar to that paid or
provided to such Transferred Employees by Baldwin Enkel and Baldwin Amal on the
date hereof; (B) the opportunity to participate in the benefit plans listed in
EXHIBIT V hereto (or benefit plans substantially equivalent to such plans),
subject to the terms and conditions set forth in such plans and as such terms
and conditions may be amended from time to time (collectively, the "MEGTEC
Benefit Plans"), (C) credit for all service with the Roll Handling Group for
purposes of eligibility and vesting (but not benefit accrual) under all of such
MEGTEC Benefit Plans; and (D) no exclusion for any preexisting condition in
respect of MEGTEC's employee medical and dental plans. Such offers of employment
or to retain employment shall terminate effective the close of business on the
day following the date on which the Closing occurs.
(b) MEGTEC will not make offers of employment to those Employees of
Baldwin Enkel as determined by MEGTEC in its sole discretion, which at or prior
to Closing will be designated by MEGTEC in its sole discretion and listed in
EXHIBIT W hereto (collectively, the "Excluded Employees") or any Inactive
Employees of Baldwin Enkel on the date of the Closing.
(c) No assets will be transferred from Baldwin Technology or Baldwin
Enkel to MEGTEC or from trustee to trustee on account of any Pension Plan or
Welfare Plan and Baldwin Technology will retain sole and exclusive control and
administration of the Pension Plans and Welfare Plans insofar as they relate to
Baldwin Enkel.
(d) Nothing in this Section 9.01 or otherwise shall (i) create any
obligation on the part of MEGTEC to offer to employ any of the Employees of
Baldwin Enkel nor (ii) subject to applicable Legal Requirement, including
industry-wide collectives and collective bargaining agreements all of which are
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disclosed in SCHEDULE 9.01(d), shall prevent MEGTEC, any Designated Purchaser or
Baldwin Printing from changing the terms or conditions of employment, including,
without limitation, amending, modifying or terminating any MEGTEC Benefit Plan,
at any time following the Closing Time.
(e) Failure by MEGTEC or any Designated Purchaser to offer employment
to any Employee of Baldwin Enkel does not relieve Baldwin Technology of the
obligation to timely provide accurate and complete files and records to MEGTEC
which were previously the responsibility of Baldwin Technology, Baldwin Amal or
Baldwin Enkel.
SECTION 9.02. EMPLOYEE OBLIGATIONS.
Baldwin Technology, Baldwin Enkel, Baldwin Amal and Baldwin Asia shall be
responsible for all liabilities and obligations relating to any and all
salaries, wages, bonuses, incentive compensations, social costs, vacations,
holidays, unemployment benefits, medical claims (including, without limitations,
all inpatient hospital stays commencing prior to the Closing Time), dental
claims, sickness and accident benefits, pension benefits, death benefits,
disability benefits and any other payments or benefits under applicable Legal
Requirement as well as any Baldwin Technology, Baldwin Amal, Baldwin Asia or
Roll Handling Group employee plan, program or arrangement, or otherwise arising
out of or relating to: (i) the employment or the actual or constructive
termination of employment of any Roll Handling Group employee prior to the
Closing Time or any Excluded Employees or Inactive Employees after the Closing
Time and further including, without limitation, in connection with the
consummation of the transactions contemplated by this Agreement; (ii) the
participation in or accrual of benefits or compensation under, or the failure to
participate in or to accrue benefits or compensation under, any Pension Plans or
Welfare Plans for current or former Roll Handling Group employees; or (iii)
accrued but unpaid salaries, wages, bonuses, incentive compensation, social
costs, vacation, sick pay or other compensation or payment pertaining to any
period of employment with the Roll Handling Group of any Roll Handling Group
employee. Notwithstanding the foregoing, MEGTEC will be responsible for (a)
payment to Transferred
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Employees of an amount equal to the aggregate amount of wages, salaries, social
costs and vacations due such Transferred Employees, in all such cases as of the
Closing Time but only to the extent and in the amount accrued therefor in the
Final Statement, (b) medical and dental claims incurred on or after the Closing
Time by any Transferred Employee or any covered dependent of any Transferred
Employee, and (c) providing continuation of health care coverage as required
under COBRA with respect to any Transferred Employee or "qualified beneficiary"
(within the meaning of Section 607(3) of ERISA) of a Transferred Employee who
incurs a "qualifying event" (within the meaning of Section 603 of ERISA) on or
after the Closing Time. For purposes of clarity with respect to subsection (b)
of the preceding sentence, a claim shall be considered incurred when the
treatment for a given condition is provided, and not when the condition arose.
ARTICLE X: CONDITIONS PRECEDENT TO OBLIGATIONS
A. CONDITIONS TO OBLIGATIONS OF MEGTEC. Each and every obligation
of MEGTEC and any Designated Purchaser to be performed at or in respect of the
Closing shall be subject to the satisfaction as of or before the Closing Time of
the following conditions:
SECTION 10.01. REPRESENTATIONS AND WARRANTIES. Baldwin Technology's,
Baldwin Enkel's, Baldwin Amal's and Baldwin Asia's representations and
warranties not qualified by materiality shall have been true and correct when
made and shall be true and correct in all material respects at and as of the
Closing Time as if such representations and warranties were made as of the
Closing Time, except to the extent that any such representation or warranty is
limited to a date or dates set forth therein. Baldwin Technology's, Baldwin
Enkel's, Baldwin Amal's and Baldwin Asia's representations and warranties
qualified by materiality shall have been true and correct in all respects when
made and shall be true and correct in all respects at and as of the Closing Time
as if such representations and warranties were made as of the Closing Time
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except to the extent that any such representation or warranty is limited to a
date or dates set forth therein.
SECTION 10.02. PERFORMANCE OF COVENANTS. All covenants, conditions and
other obligations under this Agreement which are to be performed or complied
with by Baldwin Technology, Baldwin Enkel, Baldwin Amal or Baldwin Asia at or
prior to the Closing Time shall have been fully performed and complied with in
all material respects on or prior to the Closing Time, including, without
limitation, the delivery of the fully executed instruments and documents in
accordance with Section 4.01(b) hereof.
SECTION 10.03. CONSENTS. Baldwin Technology, Baldwin Enkel, Baldwin
Amal and Baldwin Asia shall have obtained and delivered to MEGTEC all Consents
required for the performance by Baldwin Technology, Baldwin Enkel, Baldwin Amal
and Baldwin Asia of this Agreement or the consummation of the transactions
contemplated hereby including, without limitation, any of the same required: (i)
under any contract, commitment, agreement or other document or instrument to
which Baldwin Technology, CS Printing, Baldwin Asia or the Roll Handling Group
is a party or by which the Roll Handling Group, any of the Purchased Assets or
the Retained Assets or the Roll Handling Business are bound; (ii) under any
Legal Requirement; and (iii) by any Governmental Authority or under any Order to
which it is subject.
SECTION 10.04. NO MATERIAL ADVERSE CHANGE. There shall not have been
and there shall not be Threatened any material adverse change in the Purchased
Assets, the Retained Assets, the Assumed Obligations, the Continuing
Obligations, the Roll Handling Business or prospects, financial condition or
results thereof as the result of any event or occurrence. For the avoidance of
doubt, any voluntary or involuntary Proceedings under applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereinafter
in effect relating to creditors' rights generally having been filed after the
date of this Agreement and prior to the Closing Time, by or against any of the
Persons listed in SCHEDULE 10.04 may, in Sequa's sole discretion, be deemed a
material adverse effect for purposes of this Agreement.
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SECTION 10.05. LEGAL RESTRICTIONS. No Legal Requirement or Order shall
have become effective since the date hereof which would, and no Proceeding shall
be pending or Threatened before any Governmental Authority or any arbitrator
wherein an unfavorable result would: (i) make consummation of any of the
transactions contemplated hereby illegal or otherwise prohibited; (ii) cause any
of the transactions contemplated by this Agreement to be rescinded following
consummation; or (iii) affect adversely the right of MEGTEC or any Designated
Purchaser to own the CS Printing Shares (or CS Printing to own the ownership
interest in and shares of Baldwin Printing ), the Purchased Assets or the
Retained Assets, or to discharge or caused to be discharged the Assumed
Obligations or the Continuing Obligations or to conduct the Roll Handling
Business.
SECTION 10.06. APPROVALS. All corporate, stockholder and other
proceedings of Baldwin Technology, Baldwin Asia and the Roll Handling Group in
connection with this Agreement and the transactions contemplated hereby, and all
documents and instruments incident hereto, shall be reasonably satisfactory in
substance and form to MEGTEC.
SECTION 10.07. EMPLOYEE NOTICES. Subject to Section 7.09 hereof, any
notice to Employees in connection with the transactions contemplated hereby
required under any Legal Requirement shall have been given.
SECTION 10.08. SECURITY INTERESTS. Baldwin Technology, Baldwin Enkel,
Baldwin Amal and Baldwin Asia shall have obtained the release of all security
interests securing indebtedness owed by Baldwin Technology, Baldwin Asia, CS
Printing or the Roll Handling Group secured by either the Purchased Assets,
Retained Assets, CS Printing Shares, the ownership interest in and shares in of
Baldwin Printing or the Roll Handling Business.
SECTION 10.09. DAMAGES BY CASUALTY. The Purchased Assets and the
Retained Assets shall not have been materially adversely affected on or prior to
the Closing as a result of any accident or other casualty (whether or not
adequately covered by insurance) occurring on or after the date hereof and prior
to the Closing Time.
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SECTION 10.10. PERMITS. Any and all licenses, authorizations, permits
and consents from any regulatory authority having jurisdiction required for the
lawful consummation of the transactions contemplated by this Agreement and
continued operation of the Roll Handling Business and the Roll Handling Group
Facilities by MEGTEC or any Designed Purchaser shall have been obtained, but
only to the extent that Baldwin Technology, CS Printing, Baldwin Printing,
Baldwin Enkel, Baldwin Amal or Baldwin Asia are required to obtain such
licenses, authorizations, permits or consents hereunder.
SECTION 10.11. LEGAL OPINION. MEGTEC shall have received the favorable
opinion of counsel for Baldwin Technology, Baldwin Enkel, Baldwin Amal and
Baldwin Asia dated as of the Closing in form and substance as set forth in
EXHIBIT X hereto.
SECTION 10.12. REGULATORY AGENCY APPROVAL. The Parties shall have
secured all appropriate Consents and clearances by and from all regulatory
agencies and other Governmental Authorities whose Consent or clearance is
required by law for the consummation of the transactions herein contemplated.
SECTION 10.13. CUSTOMER CONTACTS.
(a) MEGTEC shall have completed discussions of its
purchase of the Roll Handling Business at meetings with those Significant
Customers which are listed in SCHEDULE 10.13(a).
(b) MEGTEC shall have completed discussions of its
purchase of the Roll Handling Business at meetings with those Significant
Customers which are listed in SCHEDULE 10.13(b) and nothing in the course of
such meetings shall have been disclosed by such Significant Customers that would
lead a reasonable Person to believe that either (i) any of such Significant
Customers have or has had significant problems with the Roll Handling Business'
past performance that have not been resolved to such Significant Customers'
satisfaction, (ii) any of such Significant Customers would not consent to the
transfer of the Customer Contracts with any of such Significant Customers to
MEGTEC and the retention of the Retained Customer Contracts with such
Significant Customers by Baldwin Printing or (iii) any of the Significant
Customers
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listed in SCHEDULE 10.13(b)(iii) will not continue to do business with
MEGTEC or any Designated Purchaser after the Closing. For the avoidance of
doubt, the provisions of this Section 10.13(b)(iii) shall not in any manner
whatsoever limit or modify the provisions of Section 10.03 hereof with respect
to the delivery by Baldwin Amal of the Consent of any such Significant Customer
at Closing.
(c) The meetings pursuant to Sections 10.13(a) and 10.13(b)
hereof shall require the presence of a representative of Baldwin Technology (who
may be a member of the Roll Handling Group) and shall be completed within two
(2) weeks from the date hereof, unless any such Significant Customer listed on
SCHEDULE 10.13(a) or 10.13(b) is not available to meet during such two-week
period; in such case, such two-week period shall be extended until such meeting
has occurred (which shall be as soon as practicable for each such Significant
Customer). Each of Baldwin Technology and MEGTEC shall use their best efforts to
complete all such meetings as soon as practicable after the date hereof.
(d) MEGTEC shall notify Baldwin Technology in writing upon the
satisfaction of this Section 10.13 within such two-week time period (or such
extended period as provided in Section 10.13(c) hereof); if no such notice is
received by Baldwin Technology, the requirements of this Section 10.13 shall be
deemed to have been satisfied and shall no longer be a condition to the Closing.
MEGTEC shall also notify Baldwin Technology if such condition has not been
satisfied on account of any matters disclosed in the meetings with those
Significant Customers referred to in Section 10.13(b) hereof.
SECTION 10.14. KEY EMPLOYEES. Subject to Section 9.02 hereof, MEGTEC
shall have received written commitments in form and substance satisfactory to
MEGTEC in its sole discretion that the employees listed in SCHEDULE 10.14 will
accept or continue employment by MEGTEC, a Designated Purchaser or Baldwin
Printing, as the case may be.
SECTION 10.15. TRANSFER OF OWNERSHIP OF BALDWIN PRINTING. Baldwin Asia
shall have transferred, prior to the Closing Time, all of the ownership interest
in and shares of Baldwin Printing to CS Printing and CS Printing shall
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have obtained from the applicable Governmental Authorities all licenses related
thereto and Consents in accordance with all applicable Legal Requirements. For
the avoidance of doubt, MEGTEC acknowledges that there are no certificates
representing the shares of Baldwin Printing.
SECTION 10.16. REAL ESTATE LEASES. TGOJ Amal AB shall enter into a
lease substantially in the form attached as SCHEDULE 10.16 with either (i)
Baldwin Amal, with Baldwin Amal having the right to assign such lease to MEGTEC
or any Designated Purchaser or (ii) MEGTEC or any Designated Purchaser, with
respect to the premises listed in SCHEDULE 10.16.
SECTION 10.17. PRODUCTION DRAWINGS. Baldwin Enkel shall, to MEGTEC's
reasonable satisfaction, have converted all CAD production drawings from
Accugraph to Auto CAD with respect to the following products:
(i) Zero Speed Splicer - Model 10;
(ii) Zero Speed Splicer - Model 12;
(iii) Auto Web Splicers - All Models; and
(iv) CAT Splicers - 1000 mm (40") Web and 1450 mm (57") Web.
SECTION 10.18. CERTAIN TRANSFERS TO BALDWIN PRINTING. Baldwin Asia and
its Affiliates shall have transferred to Baldwin Printing, prior to the Closing
Time, all of the Retained Receivables, the Retained Leases, the zero speed
license agreement, the autoweb license agreement and the Retained Customer
Contracts not owned by Baldwin Printing. All such transfers and assignments
shall be in form and substance satisfactory to MEGTEC's Chinese counsel.
SECTION 10.19 DELIVERY AND APPROVAL OF CERTAIN SCHEDULES AND EXHIBITS.
Sequa and Baldwin Technology shall have agreed, in their respective sole
discretion, as to the form and substance of any Schedules or Exhibits which have
not been delivered and initialed on the date of this Agreement and such
agreement will be evidenced by the initialing of each such Schedule or Exhibit
by both Sequa and Baldwin Technology.
B. CONDITIONS TO OBLIGATIONS OF BALDWIN ENKEL, BALDWIN AMAL AND BALDWIN
ASIA. Each and every obligation of Baldwin Technology, Baldwin
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Enkel, Baldwin Amal and Baldwin Asia to be performed at the Closing Time shall
be subject to the satisfaction as of or before such time of the following
conditions:
SECTION 10.20. REPRESENTATIONS AND WARRANTIES. Sequa's and MEGTEC's
representations and warranties not qualified by materiality shall have been true
and correct in all material respects when made and shall be true and correct in
all material respects at and as of the Closing Time as if such representations
and warranties were made as of the Closing Time, except to the extent that any
such representation or warranty is limited to a date or dates set forth therein.
Sequa's and MEGTEC's representations and warranties qualified by materiality
shall have been true and correct in all respects when made and shall be true and
correct in all respects at and as of the Closing Time as if such representations
and warranties were made as of the Closing Time, except to the extent that any
such representation or warranty is limited to a date or dates set forth therein.
SECTION 10.21. PERFORMANCE OF COVENANTS. All covenants, conditions and
other obligations under this Agreement which are to be performed or complied
with by Sequa or MEGTEC at or prior to the Closing Time shall have been fully
performed and complied with in all material respects by such party on or prior
to the Closing Time, including, without limitation, the delivery of the fully
executed instruments and documents in accordance with Section 4.01(c) hereof.
SECTION 10.22. CONSENTS. Sequa and MEGTEC shall have obtained and
delivered to Baldwin Technology, Baldwin Enkel, Baldwin Amal and Baldwin Asia
all Consents required for the performance by Sequa or MEGTEC of this Agreement
or the consummation of the transactions contemplated hereby including, without
limitation, any of the same required: (i) under any contract, commitment,
agreement or other document or instrument to which MEGTEC is a party or by which
any of its assets or properties are bound; (ii) under any Legal Requirement; and
(iii) by any Governmental Authority or under any Order to which it is subject.
SECTION 10.23. PROCEEDINGS. No Legal Requirement or Order shall have
become effective since the date hereof that makes consummation of this
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Agreement illegal or otherwise prohibited and there shall be no pending or
threatened Proceeding against Sequa or MEGTEC for the purpose of enjoining or
preventing the consummation of this Agreement, or otherwise claiming that this
Agreement or the consummation hereof is illegal.
SECTION 10.24. LEGAL RESTRICTIONS. No Legal Requirement or Order shall
have become effective since the date hereof which would, and no Proceeding shall
be pending or Threatened before any Governmental Authority or any arbitrator
wherein an unfavorable result would: (i) make consummation of any of the
transactions contemplated hereby illegal an otherwise prohibited, (ii) cause any
of the transactions contemplated by this Agreement to be rescinded following
consummation, or (iii) affect adversely the right of Baldwin Technology, Baldwin
Enkel, Baldwin Amal or Baldwin Asia, as the case may be, to own the Excluded
Assets or the Transferred Assets or to discharge or cause to be discharged the
Excluded Liabilities or the Indemnified Liabilities.
SECTION 10.25. APPROVALS. All corporate and other proceedings of Sequa
and MEGTEC in connection with this Agreement and the transactions contemplated
hereby, and all documents and instruments incident hereto, shall be reasonably
satisfactory in substance and form to Baldwin Technology.
SECTION 10.26. LEGAL OPINION. Baldwin Technology, Baldwin Enkel,
Baldwin Amal and Baldwin Asia shall have received the favorable opinion of
counsel for Sequa and MEGTEC dated as of the Closing in form and substance as
set forth in EXHIBIT Y hereto.
SECTION 10.27. TRANSFER OF OWNERSHIP OF BALDWIN PRINTING. Baldwin Asia
shall have transferred prior to the Closing Time all of the ownership interest
in and shares of Baldwin Printing to CS Printing and CS Printing shall have
obtained from the applicable Governmental Authorities all licenses related
thereto and Consents in accordance with all applicable Legal Requirements.
SECTION 10.28 DELIVERY AND APPROVAL OF CERTAIN SCHEDULES AND EXHIBITS.
Sequa and Baldwin Technology shall have agreed, in their respective sole
discretion, as to the form and substance of any Schedules or Exhibits which have
not been delivered and initialed on the date of this Agreement and such
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agreement will be evidenced by the initialing of each such Schedule or Exhibit
by both Sequa and Baldwin Technology.
ARTICLE XI: REMEDIES
SECTION 11.01. SURVIVAL. All representations, warranties, covenants,
and obligations in this Agreement and in the Schedules, any Supplements and any
other certificate or document delivered pursuant to this Agreement
(collectively, the "Additional Documents") will survive the execution and
delivery of this Agreement, the closing of the transactions contemplated hereby
and, subject to Section 11.05(h) hereof, any investigation conducted by any
Party; provided, however, that (i) the representations and warranties contained
in Article VI hereof shall expire eighteen (18) months after the Closing Time
except (A) the representations and warranties contained in Sections 6.19, 6.22
and 6.23 hereof which shall expire five (5) years after the Closing Time and (B)
the representations and warranties set forth in Sections 6.01, 6.02, 6.03, 6,04,
6.14, 6.20(a), 6.35 and 6.36 hereof which shall not expire, and (ii) each
covenant contained herein shall expire one (1) year after the expiration, if
any, of the period during which such covenant was to be performed.
Notwithstanding the foregoing, (i) subject to Section 11.06(c) hereof, the
expiration of any such representation or warranty or covenant shall not in any
manner limit MEGTEC's or any MEGTEC Entities' rights under this Article XI with
respect to Excluded Liabilities and Indemnified Liabilities and (ii) the
expiration of any such representation or warranty or covenant shall not in any
manner limit any Baldwin Entities' rights under this Article XI with respect to
the Assumed Obligations and Continuing Obligations.
SECTION 11.02. INDEMNIFICATION BY BALDWIN TECHNOLOGY, BALDWIN AMAL,
BALDWIN ASIA AND BALDWIN ENKEL. Except as limited by Sections 8.07, 11.05 and
11.06 and except for Sequa's and MEGTEC's obligations under Section 11.03
hereof, Baldwin Technology, Baldwin Enkel, Baldwin Amal and
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Baldwin Asia shall, jointly and severally, defend Sequa, MEGTEC and any
Designated Purchaser and their respective Affiliates (the "MEGTEC Entities")
against any and all Proceedings arising from, and shall defend, indemnify and
hold harmless the MEGTEC Entities for, and will pay to the MEGTEC Entities the
amount of, any Damages, incurred or suffered, directly or indirectly, by a
MEGTEC Entity as a result of:
(a) any inaccuracy or misrepresentation in or breach of any
representation or warranty made by Baldwin Technology, Baldwin Enkel, Baldwin
Amal or Baldwin Asia in this Agreement, the Schedules, any Supplements or any
Additional Document delivered by Baldwin Technology, Baldwin Enkel, Baldwin Amal
or Baldwin Asia;
(b) any failure to perform or breach of any covenant or agreement made
by Baldwin Technology, Baldwin Enkel, Baldwin Amal or Baldwin Asia in this
Agreement or in any Additional Document delivered by Baldwin Technology, Baldwin
Enkel, Baldwin Amal or Baldwin Asia;
(c) any Excluded Liabilities; or
(d) any Indemnified Liabilities.
SECTION 11.03. INDEMNIFICATION BY MEGTEC. Except as limited by Sections
8.07, 11.05 and 11.06 hereof and except for Baldwin Technology's, Baldwin
Enkel's, Baldwin Amal's and Baldwin Asia's obligations under Section 11.02
hereof, Sequa and MEGTEC shall defend Baldwin Technology, Baldwin Enkel, Baldwin
Amal and Baldwin Asia and their respective Affiliates (the "Baldwin Entities")
against any and all Proceedings arising from, and shall defend, indemnify and
hold harmless the Baldwin Entities for, and will pay to the Baldwin Entities the
amount of any Damages, incurred or suffered, directly or indirectly, by a
Baldwin Entity, as a result of:
(a) any inaccuracy or misrepresentation in or breach of any
representation or warranty made by Sequa or MEGTEC in this Agreement or any
Additional Document delivered by Sequa or MEGTEC;
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(b) any failure to perform or breach of any covenant or agreement made
by Sequa or MEGTEC in this Agreement or in any Additional Document delivered by
Sequa or MEGTEC;
(c) any Assumed Obligations; or
(d) any Continuing Obligations.
SECTION 11.04. THIRD PARTY CLAIM PROCEDURES. If a MEGTEC Entity or
Baldwin Entity receives notice of the assertion of any Third Party Claim in
respect of which such party may have a claim under Section 11.02 or 11.03
hereof, then the following shall apply:
(a) The party against whom any such Third Party Claim is made (the
"Indemnified Party"), shall promptly provide written notice (an "Indemnity
Notice") of such Third Party Claim to the other party (the "Indemnifying
Party"). Such Indemnity Notice shall describe in reasonable detail the nature of
the Third Party Claim and the basis for its claim under Section 11.02 or 11.03
hereof; provided, that the failure to provide such notice shall not affect a
party's rights under Section 11.02 or 11.03 hereof except to the extent the
other party is prejudiced by the failure to give such notice. An Indemnity
Notice by a party shall not preclude such party from giving subsequent Indemnity
Notices with respect to other claims, whether arising before or after the claims
for which such prior notice is given.
(b) Upon receipt of an Indemnity Notice, the Indemnifying Party shall
have the right to promptly assume, at its sole cost and expense, the defense or
settlement of such Third Party Claim with counsel reasonably acceptable to the
Indemnified Party, provided that the Indemnifying Party has irrevocably agreed
in writing to indemnify and hold harmless the Indemnified Party in respect of
all Damages arising or resulting from such Third Party Claim. The Indemnifying
Party shall give prompt written notice to the Indemnified Party of its intent to
enter into such agreement and assume the defense of any such Third Party Claim
and shall conduct the defense and/or settlement of such Third Party Claim
diligently and in good faith.
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(c) Notwithstanding Section 11.04(b) hereof, if (i) an Indemnified
Party is obligated to permit an insurer or other Third Party having liability
therefore to assume the defense of a Third Party Claim; or (ii) the Indemnifying
Party and Indemnified Party are both named parties in a Third Party Claim and
there are legal defenses available to the Indemnified Party which are different
from or in addition to those available to the Indemnifying Party; or (iii) if
the Indemnifying Party fails, after reasonable notice from the Indemnified
Party, to diligently and in good faith defend such Third Party Claim; or (iv)
after being requested to do so by the Indemnified Party, the Indemnifying Party
fails to provide the Indemnified Party with reasonable assurance of its
financial ability to satisfy its defense and indemnification obligations
hereunder, then, at the option of the Indemnified Party, the Indemnifying Party
shall not have the right to assume the defense of such Third Party Claim and the
Indemnified Party may, by written notice to the Indemnifying Party, reassume the
defense of any such Third Party Claim previously assumed by the Indemnifying
Party. No retention or re-assumption of any such defense by the Indemnified
Party shall prejudice any rights of the Indemnified Party under Section 11.02 or
11.03 hereof.
(d) If the Indemnifying Party does not give written notice and assume
the defense of such Third Party Claim in accordance with Section 11.04(b) hereof
or is not entitled to assume or retain the defense thereof, the Indemnified
Party shall have full and exclusive authority to defend and/or settle any such
Third Party Claim for the account of and at the sole risk, cost and expense of
the Indemnifying Party. If the Indemnified Party undertakes the defense and/or
settlement of any such Third Party Claim it shall do so diligently and in good
faith and the Indemnifying Party shall from time to time upon the request of the
Indemnified Party reimburse the Indemnified Party for the costs incurred by the
Indemnified Party in defending and/or settling such Third Party Claim. In such
event, the Indemnifying Party shall be bound by settlement entered into by the
Indemnified Party to the extent that such settlement is commercially reasonably
measured in the context of the matter settled and by any judgment resulting from
such Third Party Claim.
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(e) The Parties agree that the Indemnified Party, at its sole cost and
expense, may join the Indemnifying Party in any legal proceeding brought by the
third party asserting such Third Party Claim as to which any right under Section
11.02 or 11.03 hereof would or might apply, for the purpose of enforcing any
such right.
(f) The Indemnifying Party shall not admit any liability, settle,
compromise, pay or discharge, without the consent of the Indemnified Party, any
Third Party Claim being defended by it unless with respect to any settlement (i)
the Indemnified Party is not obligated to perform or to refrain from performing
any act under such settlement and there is no encumbrance on any assets of the
Indemnified Party; (ii) there is no finding or admission of any violation of any
Legal Requirement, violation of the rights of any Person by the Indemnified
Party or any other liability of the Indemnified Party to any Person; and (iii)
the Indemnified Party receives, as a part of such settlement, a complete
release, in form and substance reasonably satisfactory to the Indemnified Party.
(g) The party controlling the defense of a Third Party Claim shall keep
the other party reasonably informed at all stages of the defense and/or
settlement of such Third Party Claim. The party not controlling the defense of
any such Third Party Claim shall have the right, at its sole cost and expense,
to participate in, but not control, the defense of any such Third Party Claim.
Each party shall reasonably cooperate with the other in the defense and/or
settlement of any such Third Party Claim, including, without limitation, by
furnishing such records, information and testimony and attending such
conferences, discovery proceedings, hearings, trials and appeals as may be
reasonably requested in connection therewith, but the Indemnifying Party will
reimburse the Indemnified Party for any fees or expenses incurred by it in so
cooperating or acting at the request of the Indemnifying Party.
SECTION 11.05. LIMITATIONS. The rights to recover Damages under
Sections 11.02 and 11.03 hereof shall be subject to the following:
(a) Any remedy of an MEGTEC Entity or Baldwin Entity hereunder shall be
determined without regard to whether or not the transactions
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provided for in this Agreement prove generally to be favorable to a Party and
without regard to whether or not the facts and circumstances covered by any
representation, warranty or covenant prove to be more favorable to a Party than
so represented, warranted or covenanted.
(b) The Parties intend that each representation, warranty, and covenant
contained herein shall have independent significance. If any Party has breached
any representation, warranty or covenant contained herein in any respect, the
fact that there exists another representation, warranty or covenant relating to
the same subject matter (regardless of the relative levels of specificity) which
the Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty or covenant.
(c) All representations, warranties and agreements made in this
Agreement, in any Additional Document and in the Schedules and any Supplements
shall be deemed to be material and to have been relied upon by Baldwin
Technology, Baldwin Enkel, Baldwin Amal, Baldwin Asia, or Sequa or MEGTEC, as
the case may be. As used in this Article XI, any reference to a representation,
warranty or covenant contained in any Section of this Agreement shall include
the Schedule and Supplements relating to such Section.
(d) For purposes of this Article XI, a MEGTEC Entity or Baldwin Entity,
respectively shall be deemed to have suffered Damages if the same shall be
suffered by any parent, subsidiary or Affiliate of such MEGTEC Entity or Baldwin
Entity.
(e) The MEGTEC Entities shall not be entitled to recover Damages under
Section 11.02(a) hereof until the MEGTEC Entities collectively have incurred
Damages in excess of Three Hundred Thousand Dollars ($300,000) (the "Threshold
Amount") in which event, subject to Section 11.05(g) hereof, a MEGTEC Entity
shall be entitled to make a claim under Section 11.02(a) hereof for all Damages
incurred by the MEGTEC Entities, in excess of the Threshold Amount.
(f) No MEGTEC Entity or Baldwin Entity shall be entitled to recover
Damages under Sections 11.02(a) or 11.03(a) hereof, as the case may
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be, unless it shall make its claim therefor on or prior to the date on which the
relevant representation or warranty or covenant shall expire pursuant to Section
11.01 hereof and if, prior to the expiration of the representation or warranty
or covenant, a claim is made then the MEGTEC Entity or Baldwin Entity making
such claim shall not be precluded from pursuing such claim or otherwise in any
way prejudiced in respect of such claim by reason of the expiration of such
representation or warranty or covenant.
(g) Notwithstanding anything contained in this Agreement to the
contrary, in no event shall the Baldwin Entities have any liability for
indemnification pursuant to Section 11.02(a) hereof in an aggregate amount in
excess of the Estimated Purchase Price.
(h) Notwithstanding anything contained in this Agreement to the
contrary, the liability of any Baldwin Entity for indemnification under Section
11.02(a) hereof for:
(i) any inaccuracy or misrepresentation in or breach
of any representation or warranty of any Baldwin Entity
contained in this Agreement or in any Schedule or in any
Supplement or in any other Additional Document shall in any
such case be reduced if and to the extent that, and only to
the extent that, any of the individuals listed on SCHEDULE
1.04 had, at or prior to the Closing Time, actual knowledge of
such inaccuracy of misrepresentation or breach. In no event
shall knowledge be imputed or any defense whatsoever asserted
by any Baldwin Entity that any such individuals "could have
known" or "should have known". It is further acknowledged and
agreed that the Baldwin Entities shall have the burden or
proof with respect to establishing such actual knowledge and
that such actual knowledge may not be based upon allegations
of Sequa, MEGTEC or their Affiliates, including any Designated
Purchaser, having been orally informed by any current or
former employees of either Baldwin Technology, Baldwin Amal,
Baldwin Enkel, Baldwin
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Printing or Baldwin Asia or their respective Affiliates of any
matter whatsoever; and
(ii) any failure to perform or breach of any covenant
or agreement made by any Baldwin Entity contained in this
Agreement shall in any such case be reduced if and to the
extent that, and only to the extent that, such failure to
perform or breach is described in reasonable detail in any
Additional Document.
(i) Notwithstanding anything contained in this Agreement to the
contrary, the limitations contained in this Section 11.05 shall not in any
matter apply to Assumed Obligations, Continuing Obligations, Excluded
Liabilities or Indemnified Liabilities.
SECTION 11.06. ENVIRONMENTAL LIMITATION.
(a) Subject to Section 11.06(c) hereof, Baldwin Technology and
its Affiliates hereby waive, release and agree not to make any claim or bring
any cost recovery action against Sequa, MEGTEC and any Designated Purchaser and
their respective Affiliates under CERCLA or any equivalent Legal Requirement now
existing or hereafter enacted with respect to any Excluded Liability or
Indemnified Liability.
(b) Sequa, MEGTEC and their respective Affiliates agree to
waive, release and agree not to make any claim or bring any cost recovery action
against Baldwin Technology, Baldwin Enkel, Baldwin Amal and Baldwin Asia and
their respective Affiliates under any Environmental Laws, including but not
limited to, CERCLA or any equivalent Legal Requirement now existing or hereafter
enacted, provided, however, Sequa, MEGTEC and their respective Affiliates
reserve their respective rights, if any, to bring such a claim or cost recovery
action against Baldwin Technology, Baldwin Enkel, Baldwin Amal and Baldwin Asia
and their respective Affiliates in the event but only to the extent that Baldwin
Technology, Baldwin Enkel, Baldwin Amal or Baldwin Asia default on their
indemnification obligations under Section 11.02 with respect to any
Environmental Losses (as defined in Section 11.06(d)(i) hereof).
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(c) Notwithstanding anything to the contrary contained in this
Agreement, no MEGTEC Entity shall be entitled to assert a claim or seek
indemnity or defense under this Agreement with respect to Environmental Losses
(as defined in Section 11.06(d)(i) hereof) arising out of the operation of or
assets of Baldwin Printing, the Shanghai Facility or the Amal Facility and
neither Baldwin Technology, Baldwin Enkel, Baldwin Amal, Baldwin Asia nor any of
their respective Affiliates shall have any liability to any MEGTEC Entity for
such Environmental Losses unless the claim is asserted prior to the tenth (10th)
anniversary of the Closing Date. For the avoidance of doubt, the provisions of
this Section 11.06(c) shall not in any manner whatsoever apply with respect to
either the Rockford Facility or any Former Facilities.
(d) Notwithstanding anything to the contrary in this
Agreement:
(i) From and after the Closing Time, with respect to any
matter, Proceeding, Damage or other liability for which Baldwin Technology,
Baldwin Enkel, Baldwin Amal or Baldwin Asia ("Baldwin Indemnifying Parties") may
have any indemnification or other obligation under this Agreement arising out of
or relating to Environmental Laws or Hazardous Substances (including but not
limited to any such matters, Proceedings, Damages or liabilities that are
Continuing Obligations, Excluded Liabilities and/or Indemnified Liabilities)
(hereinafter referred to as "Environmental Losses") arising out of or relating
to the Amal Facility or the Shanghai Facility the Baldwin Indemnifying Parties
shall have the exclusive right (provided the Baldwin Indemnifying Parties
exercise such rights in a timely and diligent manner) to undertake at the
Baldwin Indemnifying Parties' sole cost and expense the following activities
with the prior written consent of Sequa, such consent not to be unreasonably
withheld: (1) undertake or obtain any tests, reports, and surveys necessary to
define and delineate the extent of any contamination or noncompliance, (2)
contact Governmental Authorities, make any reports to such authorities, submit
any remediation or compliance plans to such Governmental Authorities, negotiate
with such Governmental Authorities, and otherwise interact with such
Governmental Authorities, (3) prepare the work plan for any remediation or
correction of
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noncompliance, and (4) subject to Sections 11.06(d)(ii) and (iii) hereof,
conduct, control, direct and implement any such remediation or correction of
noncompliance. Notwithstanding the foregoing, the Baldwin Indemnifying Parties
agree to provide the MEGTEC Entities with (1) copies of all workplans for, and
test results, surveys and other data generated by, the investigations performed
by the Baldwin Indemnifying Parties or their representatives promptly upon the
availability thereof, (2) copies of all reports, plans and other documents to be
submitted to any Governmental Authority prior to any such submission, (3) an
opportunity to meet with the relevant Baldwin Indemnifying Parties and their
representatives prior to, during and following any substantive communications
with Governmental Authorities, and (4) an opportunity to timely comment upon the
foregoing and any other proposed determinations or actions relating to the
investigation, testing and remediation of the relevant property and the
reporting thereon with Governmental Authorities.
(ii) In order to assist the Baldwin Indemnifying Parties
to carry out their obligations under Article XI with respect to Environmental
Losses arising out of or relating to the Amal Facility or the Shanghai Facility,
the MEGTEC Entities shall cooperate with the Baldwin Indemnifying Parties,
including but not limited to providing the Baldwin Indemnifying Parties and
their agents, representatives, consultants and contractors continuing reasonable
access to (1) the affected property; (2) relevant documents (other than any such
documents that constitute confidential business information); and (3) personnel
who may be knowledgeable about the relevant environmental matter or property (in
each case without charge for any internal costs); provided, however, that the
Baldwin Indemnifying Parties shall provide the relevant MEGTEC Entity with
reasonable notice (in particular with respect to any material invasive
activities) prior to the Baldwin Indemnifying Parties or any of their agents,
representatives, consultants or contractors entering the relevant property; and
provided further that the Baldwin Indemnifying Parties shall not unreasonably
interfere with the relevant MEGTEC Entity's operations at the relevant property.
Any investigation, remediation, correction of noncompliance or other activities
to be conducted,
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directed or performed by the Baldwin Indemnifying Parties at the Amal Facility
or the Shanghai Facility pursuant to this Section 11.06 shall be performed by an
independent third party environmental professional reasonably acceptable to the
MEGTEC Entities and the Baldwin Indemnifying Parties.
(iii) With respect to any Environmental Loss at the Amal
Facility or the Shanghai Facility for which the Baldwin Indemnifying Parties may
have an indemnification obligation under this Agreement which requires action by
the Baldwin Indemnifying Parties and the reasonable consent of the MEGTEC
Entities or the agreement of the MEGTEC Entities and the Baldwin Indemnifying
Parties pursuant to this Section 11.06(d), the Baldwin Indemnifying Parties
shall notify the MEGTEC Entities in writing of the action the Baldwin
Indemnifying Parties propose to take, setting forth with particularity the
nature of such action, the identity of the individual or firm proposed to
perform such action (if applicable), the proposed time frame for commencing and
completing such action (including mileposts for interim activities), and the
estimated cost associated with such action, to the extent estimable (each such
action, an "Environmental Response Proposal"). The Baldwin Indemnifying Parties
shall provide the MEGTEC Entities with copies of sampling data, environmental
reports, proposals and correspondence in the possession of the Baldwin
Indemnifying Parties relevant to the subject matter of the Environmental
Response Proposal. The MEGTEC Entities shall within fifteen (15) days after
receipt of the Environmental Response Proposal, notify the Baldwin Indemnifying
Parties in writing that the MEGTEC Entities, in whole or in part, approve or
object to such Environmental Response Proposal. The MEGTEC Entities agree that
their approval of an Environmental Response Proposal shall not be unreasonably
withheld. In the event the MEGTEC Entities object, in whole or in part, to an
Environmental Response Proposal, the MEGTEC Entities shall notify the Baldwin
Indemnifying Parties in writing of their specific disagreement regarding such
Environmental Response Proposal and the MEGTEC Entities shall propose an
alternative response action, within fifteen (15) days of its receipt of notice
of the Environmental Response Proposal ("Dispute Notification"). In the event
the
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MEGTEC Entities fail to approve or object to a Environmental Response Proposal
within fifteen (15) days after their receipt thereof, the Environmental Response
Proposal shall be deemed approved.
(iv) In the event the MEGTEC Entities object to an
Environmental Response Proposal or any portion thereof, under Section
11.06(c)(iii) hereof, the Parties shall thereafter negotiate in good faith in an
attempt to reach agreement as to the disputed Environmental Response Proposal.
In the event the Parties are unable to resolve the dispute within forty-five
(45) days after the Baldwin Indemnifying Parties' receipt of a Dispute
Notification, either the MEGTEC Entities or the Baldwin Indemnifying Parties may
provide written notice to the other of its intent to submit the matter to the
dispute resolution procedures specified in Section 11.11(b) hereof.
(v) To the extent the Baldwin Indemnifying Parties
decline or fail to exercise their rights or perform their obligations under this
Section 11.06 in a diligent and timely manner, the MEGTEC Entities, upon written
notice to the Baldwin Indemnifying Parties, shall have the right to control,
direct and perform the relevant investigation or remediation or correct the
relevant noncompliance, provided the procedures in this Section 11.06 shall be
complied with, substituting in each case (other than payment obligations) the
MEGTEC Entities for the Baldwin Indemnifying Parties and vice versa, except if
the time frames specified herein are required to be shortened to avoid
non-compliance with Environmental Law or the requirements of a Governmental
Authority.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no MEGTEC Entity shall be entitled to claim or seek indemnity or
defense from any Baldwin Indemnifying Party for any Environmental Losses where
the Environmental Losses result from or would not have arisen but for any
intrusive investigation or disclosure by any MEGTEC Entity, unless such
investigation or disclosure was: (1) required by applicable Environmental Laws;
(2) required by a Governmental Authority; (3) performed in connection with the
discovery of Hazardous Substances during or as a result of any stage of a
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proposed or actual facility expansion or renovation; (4) performed in connection
with an unaffiliated third party offer received after the Closing Time to
purchase or lease any of the real property subject to this transaction or the
business or assets or share capital of MEGTEC, any Designated Purchaser or any
of their respective Affiliates; (5) required, in the good faith belief of the
relevant MEGTEC Entity, to respond to an emergency situation to protect human
health or safety; (6) required by insurers, lenders, prospective purchasers or
underwriters; (7) conducted pursuant to the relevant MEGTEC Entity's
environmental compliance policy; or (8) performed in connection with any other
commercially reasonable business purpose including in response to the
recommendation of outside environmental legal counsel (other than for the sole
intent and purpose of triggering an indemnification obligation of the Baldwin
Indemnifying Parties under Article XI hereof).
(f) Notwithstanding anything to the contrary contained in this
Agreement, the Baldwin Indemnifying Parties' indemnification obligations under
this Article XI with respect to Environmental Losses at the Amal Facility and
the Shanghai Facility are limited to the lowest cost response action acceptable
(1) under Environmental Laws and (2) to applicable Governmental Authorities,
including but not limited to site-specific, risk-based standards or the use of
engineering or institutional controls, based on the current or similar
industrial use of the relevant property, provided, however, the Baldwin
Indemnifying Parties may not implement the lowest response action if such action
or controls could be reasonably expected to unreasonably or materially
interferes with the relevant MEGTEC Entity's industrial use of the property
(including any actual renovations or expansions implemented by the relevant
MEGTEC Entity prior to expiration of the time periods specified in Sections
11.01 or 11.06(c) hereof, as the case may be).
(g) Notwithstanding anything to the contrary contained in this
Agreement, Environmental Losses incurred by the MEGTEC Entities for which the
Baldwin Indemnifying Parties have an indemnification obligation under Article XI
hereof shall include all out-of-pocket expenses and costs of the relevant
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MEGTEC Entity that arise directly out of any interference in the relevant MEGTEC
Entity's operations caused by an environmental response action or engineering
control implemented or imposed by the Baldwin Indemnifying Parties pursuant to
their indemnification obligation with respect to Environmental Losses under
Article XI hereof, provided, however, Environmental Losses shall not include
expenses, costs or profits associated with future, potential or contingent sales
or revenues but shall include all such expenses, costs or profits associated
with the existing accepted customer orders which may be materially or
unreasonably impacted, provided further, that the MEGTEC Entities shall
undertake commercially reasonable steps to minimize any such Environmental
Losses, provided such steps do not unreasonably interfere with the business or
operations of the MEGTEC Entities. Any such Environmental Losses payable to the
MEGTEC Entities shall be net of any insurance recovery, provided that nothing in
this Section 11.06(g) shall be construed to require the MEGTEC Entities to seek
to obtain, to obtain or hold any such insurance.
SECTION 11.07. SOLE AND EXCLUSIVE REMEDY. The specific remedies under
this Article XI shall be the sole and exclusive remedies of the Parties for the
recovery of money damages for any breach by any other Party of its respective
representations, warranties, covenants or other obligations set forth in this
Agreement or made or given in a certificate or document delivered pursuant
hereto. The terms of this Section 11.07 shall not be construed as limiting in
any way whatsoever any remedy other than for the recovery of money damages to
which any such Party may be entitled.
SECTION 11.08. COVENANT TO MAINTAIN INSURANCE. Baldwin Technology shall
maintain in effect, for a period of at least three (3) years following the
Closing, one or more policies of insurance to insure against damages to person
or property which are included in the Excluded Liabilities listed in Sections
2.05(e) and 2.05(o) hereof and Indemnified Liabilities listed in Sections
2.11(d) and 2.11(n) hereof, retained by Baldwin Technology, Baldwin Enkel,
Baldwin Amal and Baldwin Asia pursuant to this Agreement, to the extent such
risks are currently insured against, provided, however, such insurance shall (i)
be primary
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insurance and exclusive of any insurance of MEGTEC or its Affiliates; (ii) not
require contribution by MEGTEC or its Affiliates; and (iii) name MEGTEC and its
Affiliates as additional insured and waive subrogation against MEGTEC or its
Affiliates and their insurers.
SECTION 11.09. SPECIFIC PERFORMANCE. The Parties acknowledge and agree
that the other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Parties shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of the United States or any state thereof having jurisdiction over the
Parties and the matter, in addition to any other remedy to which they may be
entitled, at law or in equity.
SECTION 11.10. ATTORNEY FEES.
(a) If any Party to this Agreement shall bring any action for any
relief against any other Party, declaratory or otherwise, arising out of this
Agreement, the losing Party or Parties shall pay to the prevailing Party or
Parties a reasonable sum for attorneys' fees incurred in bringing or defending
such action and/or enforcing any judgment granted therein, all of which shall be
deemed to have accrued upon the commencement of such action and shall be paid
whether or not such action is prosecuted to judgment. To so recover, it shall
not be necessary that the prevailing Party or Parties prevail in each and every
one of its or their claims. Rather, the amount of the award of attorneys' fees
shall, in the court's discretion, reflect the degree to which the prevailing
Party or Parties has or have prevailed in some of its or their claims. Any
judgment or order entered in such action shall contain a specific provision
providing for the recovery of attorneys' fees and costs incurred in enforcing
such judgment. For the purposes of this Section 11.10(a), attorneys' fees shall
include, without limitation, fees incurred in the following: (i) post judgment
motions; (ii) contempt
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proceedings; (iii) garnishment, levy, and debtor and third party examination;
(iv) discovery; and (v) bankruptcy litigation.
(b) Attorneys' fees incurred by any Party in enforcing any judgment on
any action brought to resolve any controversy arising under this Agreement, to
enforce any of its terms or for the breach of this Agreement, shall be
recoverable by the prevailing Party or Parties. Such right to post judgment
attorneys' fees shall be separate and distinct from the right to recover
attorneys' fees pursuant to Section 11.10(a) hereof. The provisions of this
Section 11.10(b) shall be severable from all other provisions of this Agreement,
shall survive any judgment and shall not be deemed merged into any judgment.
SECTION 11.11 CONSENT TO JURISDICTION.
(a) Except as provided in Sections 3.04(c) and 11.11(b) hereof, each of
the Parties hereby irrevocably consents and agrees that any action, suit or
proceeding arising in connection with any disagreement, dispute, controversy or
claim arising out of or relating to this Agreement or any related document (for
purposes of this Section 11.11(a), a "Legal Dispute") shall be brought only to
the exclusive jurisdiction of the courts of the State of New York located in New
York City, Borough of Manhattan or the Federal District Court, Southern District
of New York, New York City, Borough of Manhattan. The Parties agree that, after
a Legal Dispute is before a court as specified in this Section 11.11(a) and
during the pendency of such Legal Dispute before such court, all actions, suits,
or proceedings with respect to such Legal Dispute or any other Legal Dispute,
including, without limitation, any counterclaim, cross-claim or interpleader,
shall be subject to the exclusive jurisdiction of such court. Each of the
Parties hereby waives, and agrees not to assert, as a defense in any legal
dispute, that such Party is not subject thereto or that such action, suit, or
proceeding may not be brought or is not maintainable in such court or that such
Party's property is exempt or immune from execution, that the action, suit or
proceeding is brought in an inconvenient forum or that the venue of the action,
suit, or proceeding is improper. Each Party hereto agrees that a final judgment
in any action, suit or proceeding described in this Section 11.11(a) after the
expiration of any period
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permitted for appeal and subject to any stay during appeal shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by applicable laws.
(b) In the case of any claim under, or any other dispute arising out
of, Section 11.06 hereof for any Environmental Losses or Damages with respect to
which either the relevant MEGTEC Entity or the Baldwin Indemnifying Parties
provide notice to the other of its or their intent to submit the matter to
dispute resolution pursuant to Section 11.06(d)(iii), the matter shall be
submitted to arbitration before a mutually acceptable arbitrator, and if the
MEGTEC Entity and Baldwin Technology are unable so to choose an arbitrator, the
matter shall be submitted before an arbitrator selected in accordance with the
rules of the American Arbitration Association. The arbitration shall be held in
the City of New York, New York in accordance with, and subject to the rules of,
the American Arbitration Association. The Parties hereto agree to be bound by
the decision of the arbitrator.
ARTICLE XII: TERMINATION
SECTION 12.01.....TERMINATION BY EITHER PARTY. This Agreement may be
terminated at any time prior to the Closing by mutual written consent of Sequa,
MEGTEC, Baldwin Technology, Baldwin Enkel, Baldwin Amal and Baldwin Asia.
SECTION 12.02.....TERMINATION BY BALDWIN TECHNOLOGY, BALDWIN AMAL,
BALDWIN ASIA OR BALDWIN ENKEL. This Agreement may be terminated at any time
prior to the Closing by Baldwin Technology, Baldwin Enkel, Baldwin Amal or
Baldwin Asia if:
(a) the Closing has not occurred (other than through the failure of
Baldwin Technology, Baldwin Enkel, Baldwin Amal or Baldwin Asia to comply with
any of its obligations under this Agreement) on or before August 31, 2001, or
such later date as the parties may agree upon five (5) Business Days after such
expiration or termination (such date the "Extended Closing Time");
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(b) any of the representations or warranties of MEGTEC contained in
this Agreement, in any Additional Document or in any Schedule shall prove to be
inaccurate or untrue in any material respect;
(c) any obligation, term or condition to be performed, kept or observed
by MEGTEC hereunder has not been performed, kept or observed at or prior to the
time specified in this Agreement in any material respect; or
(d) any of the conditions in Section 10.21 hereof has not been
satisfied as of the Closing Time or if satisfaction of such a condition is or
becomes impossible (other than through the failure of either Baldwin Technology,
Baldwin Enkel, Baldwin Amal or Baldwin Asia to comply with its obligations under
this Agreement) and neither Baldwin Technology, Baldwin Enkel, Baldwin Amal nor
Baldwin Asia has waived such condition on or before the Closing Time.
SECTION 12.03.....TERMINATION BY MEGTEC. This Agreement may be
terminated and canceled at any time prior to the Closing by Sequa or MEGTEC if:
(a) the Closing has not occurred (other than through the failure of
Sequa or MEGTEC to comply with any of its obligations under this Agreement) on
or before August 31, 2001 or the Extended Closing Time;
(b) any of the representations or warranties of Baldwin Technology,
Baldwin Enkel, Baldwin Amal or Baldwin Asia contained in this Agreement, in any
Additional Document or in any Schedule or Supplement shall prove to be
inaccurate or untrue in any material respect;
(c) any obligation, term or condition to be performed, kept or observed
by Baldwin Technology, Baldwin Enkel, Baldwin Amal or Baldwin Asia hereunder has
not been performed, kept or observe at or prior to the time specified in this
Agreement in any material respect; or
(d) any of the conditions in Section 10.02 hereof has not been
satisfied as of the Closing Time or if satisfaction of such a condition is or
becomes impossible (other than through the failure of Sequa or MEGTEC to comply
with its obligations under this Agreement) and neither Sequa nor MEGTEC has
waived such condition on or before the Closing Time.
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SECTION 12.04 EFFECT OF TERMINATION. Each Party's right of
termination under Sections 12.01, 12.02, or 12.03 hereof, as the case may be, is
in addition to any other rights it may have under this Agreement or otherwise,
and the exercise of a right of termination will not be an election of remedies
or preclude the making of any claims under this Agreement accrued prior to such
termination.
ARTICLE XIII: MISCELLANEOUS PROVISIONS
SECTION 13.01 NOTICES. All notices, demands and other
communications which may or are required to be given to or made by any of the
Parties to the other in connection with this Agreement shall be in writing
(including telex, fax or other similar writing) and shall be deemed to have been
duly given or made: (a) if sent by registered or certified mail, five (5) days
after the posting thereof with first class postage attached, (b) if sent by hand
or overnight delivery, upon the delivery thereof and (c) if sent by telex or
fax, upon confirmation of receipt of such telex or fax, in each case addressed
to the respective Parties as follows:
If to Baldwin Technology,
Baldwin Asia, Baldwin Amal
or Baldwin Enkel:
Baldwin Technology Company, Inc.
12 Commerce Drive
P.O. Box 901
Shelton, Connecticut 06484
Attention: Helen P. Oster
Ronald F. Rahe
Telefax: (203) 402-5500
With a copy to: Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Attention: Samuel B. Fortenbaugh III
Telefax: (212) 309-6273
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If to MEGTEC: MEGTEC Systems, Inc.
830 Prosper Road
DePere, Wisconsin 54115
Attention: Greg Linn
Telefax: (920) 336-3404
With a copy to: Sequa Corporation
200 Park Avenue - 44th Floor
New York, New York 10166
Attention: Senior Executive Vice President
and General Counsel
Telefax: (212) 370-1969
With a copy to: Sequa Corporation
1310 Papin Street - 3rd Floor
St. Louis, Missouri 63103
Attention: John J. Dowling III
Telefax: (314) 241-1027
or to such other address and to the attention of such other persons as either
Party hereto may specify from time to time by notice to the other Party.
SECTION 13.02 ENTIRE AGREEMENT. This Agreement, the Schedules,
Supplements and the Exhibits hereto, and the documents and certificates referred
to herein embody the entire agreement and understanding of the Parties hereto
with respect to the subject matter hereof, and supersede all prior and
contemporaneous agreements and understandings, oral or written, relative to said
subject matter, including, without limitation, the Offer Letter dated January
31, 2001 and the Confidentiality Agreement dated September 5, 2000 by and
between Sequa and Baldwin Technology.
SECTION 13.03 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be transferred or assigned (by
operation of law or otherwise) by any of the Parties hereto without the prior
written consent of the other Party; provided, however, that MEGTEC shall have
the right to assign its rights hereunder to any Designated Purchaser or other
Affiliate of MEGTEC or any Person that acquires any of the business and assets
of MEGTEC pertaining to the subject matter of this Agreement where such
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assignee duly and effectively assumes all of the obligations of MEGTEC hereby
and is deemed to have made all of the representations and warranties made by
MEGTEC herein by instrument reasonably satisfactory to Baldwin Technology. Any
such assignment shall not release either Sequa or MEGTEC from its obligations
hereunder, and Sequa and MEGTEC guarantee to Baldwin Technology, Baldwin Enkel,
Baldwin Amal and Baldwin Asia the performance by each Designated Purchaser of
its obligations hereunder and under the instrument of such Designated Purchaser
referred to in the immediately preceding sentence of this Section 13.03. Any
such assignee may enforce any right or benefit assigned to it as if it had been
named in this Agreement as MEGTEC, and, in the case of an assignee which is an
Affiliate of MEGTEC, may recover thereunder as if it had acquired the Purchased
Assets or retained the Retained Assets. Any transfer or assignment of any of the
rights, interests or obligations hereunder in violation of the terms hereof
shall be void and of no force or effect.
SECTION 13.04 CAPTIONS. The Table of Contents and Article and
Section headings of this Agreement are inserted for convenience only and shall
not constitute a part of this Agreement in construing or interpreting any
provision hereof.
SECTION 13.05 WAIVER; CONSENT. This Agreement may not be changed,
amended, terminated, augmented, rescinded or discharged (other than by
performance), in whole or in part, except by a writing executed by the Parties
hereto, and no waiver of any of the provisions or conditions of this Agreement
or any of the rights of a Party hereto shall be effective or binding unless such
waiver shall be in writing and signed by the Party claimed to have given or
consented thereto. Except to the extent that a Party hereto may have otherwise
agreed in writing, no waiver by that Party of any condition of this Agreement or
breach by the other Party of any of its obligations or representations hereunder
shall be deemed to be a waiver of any other condition or subsequent or prior
breach of the same or any other obligation or representation by the other Party,
nor shall any forbearance by the first Party to seek a remedy for any
noncompliance or
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breach by the other Party be deemed to be a waiver by the first Party of its
rights and remedies with respect to such noncompliance or breach.
SECTION 13.06 NO THIRD PARTY BENEFICIARIES. Except as expressly
provided herein, nothing herein is intended or shall be construed to confer upon
or give to any Person including, without limitation, any Employees of the Roll
Handling Group, any legal or equitable right, remedy, claim or other benefit
under or by reason of this Agreement.
SECTION 13.07 COUNTERPARTS. This Agreement is being executed
simultaneously in duplicate original counterparts, each of which shall be deemed
an original, but all of which taken together shall constitute one and the same
instrument.
SECTION 13.08 GENDER. Whenever the context requires, words used in
the singular shall be construed to mean or include the plural and vice versa,
and pronouns of any gender shall be deemed to include and designate the
masculine, feminine or neuter gender.
SECTION 13.09 GOVERNING LAW. This Agreement shall in all respects
be construed in accordance with and governed by the laws of the State of New
York exclusive of laws relating to conflicts of law.
SECTION 13.10 RISK OF LOSS. Legal title, equitable title and all
risk of loss or damage with respect to any assets, property and right to be
transferred hereunder shall not pass to MEGTEC or any Designated Purchaser until
the asset, property or right is transferred at the Closing or thereafter.
SECTION 13.11 INTERPRETATION. It is acknowledged by Sequa, MEGTEC,
Baldwin Technology, Baldwin Enkel, Baldwin Amal and Baldwin Asia that this
Agreement has undergone several drafts with the negotiated suggestions of each
and, therefore, no presumptions shall arise favoring any Party hereto by virtue
of the authorship of any provision of this Agreement. Nothing in the Schedules
or Supplements shall be deemed adequate to disclose an exception to a
representation or warranty made herein unless the Schedules and Supplements
identify the exception with reasonable particularity and describes the relevant
facts in reasonable detail. Without limiting the generality
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of the foregoing, the mere listing (or inclusion of a copy) of a document or
other item shall not be deemed adequate to disclose an exception to a
representation or warranty made herein (unless the representation or warranty
has to do with the existence of the document or other item itself).
SECTION 13.12 VALIDITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the court making the determination of invalidity or
unenforceability shall have the power to delete specific words or phrases, or to
replace any invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified after the expiration of the time within which the
judgment may be appealed.
SECTION 13.13 BULK TRANSFER LAWS. Notwithstanding any other provision
of this Agreement, MEGTEC hereby waives compliance by Baldwin Enkel and Baldwin
Amal with the provisions of any so-called bulk transfer law of any jurisdiction
in connection with the transactions contemplated hereby. Baldwin Technology and
Baldwin Enkel hereby, jointly and severally, agree to defend, indemnify and
agrees to hold MEGTEC harmless from and against any and all liabilities, losses,
damages, costs and expenses, including reasonable counsel fees, incurred or
sustained by MEGTEC due to such non-compliance.
SECTION 13.14 EXPENSES. Each of Sequa, MEGTEC, Baldwin Technology,
Baldwin Enkel, Baldwin Amal and Baldwin Asia will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby. Baldwin Technology, Baldwin
Enkel, Baldwin Amal and Baldwin Asia agree that neither Sequa nor MEGTEC will
bear any of the costs and expenses of Baldwin Technology, Baldwin Enkel, Baldwin
Amal or Baldwin Asia (including any of its
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legal fees and expenses or any brokerage, investment banking, financial
advisory, finders or similar fees or commissions, and all related expenses of
any broker, finder, advisor or other Person who was engaged by it in connection
with this Agreement or the transactions contemplated hereby) in connection with
this Agreement or any of the transactions contemplated hereby. Sequa and MEGTEC
agree that neither Baldwin Technology, Baldwin Enkel, Baldwin Amal nor Baldwin
Asia will bear any of the costs and expenses of Sequa or MEGTEC (including any
of its legal fees and expenses or any brokerage, investment banking, financial
advisory, finders or similar fees or commissions, and all related expenses of
any broker, finder, advisor or other Person who was engaged by it in connection
with this Agreement or the transactions contemplated hereby) in connection with
this Agreement or any of the transactions contemplated hereby.
SECTION 13.15 GUARANTEE. Sequa guarantees the full performance by
MEGTEC and each Designated Purchaser of all of their respective obligations
under this Agreement. Baldwin Technology guarantees the full performance by
Baldwin Enkel, Baldwin Amal and Baldwin Asia of all of their respective
obligations under this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the day and year first above written.
SEQUA CORPORATION
By: ________________________________
Name: ________________________________
Title: ________________________________
MEGTEC SYSTEMS, INC.
By: ________________________________
Name: ________________________________
Title: ________________________________
BALDWIN TECHNOLOGY COMPANY, INC.
By: ________________________________
Name: ________________________________
Title: ________________________________
BALDWIN ENKEL CORPORATION
By: ________________________________
Name: ________________________________
Title: ________________________________
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BALDWIN AMAL AB
By: ________________________________
Name: ________________________________
Title: ________________________________
BALDWIN ASIA PACIFIC CORPORATION
By: ________________________________
Name: ________________________________
Title: ________________________________
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EXHIBIT A
DEFINITIONS
"ACCOUNTING INSTRUCTIONS" as defined in Section 3.02 of the Agreement.
"ACCOUNTS PAYABLE" as defined in Section 2.04(a) of the Agreement.
"ACCRUED EXPENSES" as defined in Section 2.04(b) of the Agreement.
"ACQUISITION PROPOSAL" as defined in Section 7.03 of the Agreement.
"ADDITIONAL DOCUMENTS" as defined in Section 11.01 of the Agreement.
"AFFILIATE" means, as to any specified person or entity, any other
person or entity, which, directly, or indirectly controls, is controlled by or
is under common control with, such specified person or entity. For purposes of
this definition, "control" means the possession of the power to direct or cause
the direction of the management and policies of such person or entity, whether
through the ownership of voting securities, by contract or otherwise. For the
avoidance of doubt, with respect to Baldwin Technology, the term "Affiliates"
includes Baldwin Amal, Baldwin Printing, CS Printing, Baldwin Sweden, Baldwin
Asia and Baldwin Enkel.
"AGREEMENT" as defined in the Preamble of the Agreement.
"AMAL FACILITY" collectively means the owned land and buildings which
comprise the facilities of Baldwin Amal AB located in Amal Sweden at Vastra
Bangatan 8 and the leased facilities of Baldwin Amal AB located in Amal Sweden
at Vastra Bangatan 2, Amal, Sweden.
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"ASSUMED OBLIGATIONS" as defined in Section 2.04 of the Agreement.
"BALDWIN AMAL" means Baldwin Amal AB.
"BALDWIN ASIA" means Baldwin Asia Pacific Corporation.
"BALDWIN ENKEL" means Baldwin Enkel Corporation.
"BALDWIN ENTITY" as defined in Section 11.03 of the Agreement.
"BALDWIN INDEMNIFYING PARTIES" as defined in Section 11.06(d) of the
Agreement.
"BALDWIN PRINTING" means Baldwin Printing Equipment (Shanghai) Company,
Ltd.
"BALDWIN SWEDEN" means Badwin Sweden Holdings AB.
"BALDWIN'S KNOWLEDGE" as defined in Section 1.05 of the Agreement.
"BALDWIN TECHNOLOGY" means Baldwin Technology Company, Inc.
"BUSINESS DAY" means any day on which commercial banks are not required
or authorized by law to close in the City of New York, State of New York, U.S.A.
"BUSINESS IP" means all Intellectual Property used or held for use by
Baldwin Enkel and includes, without limitation, the items listed on SCHEDULE
6.22(a).
"BUSINESS RECORDS" as defined in Section 2.02(q) of the Agreement.
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"CAA" means the United States Clean Air Act.
"CAPITAL SPENDING BUDGET" as defined in Section 6.05(e) of the
Agreement.
"CASH" as defined in Section 2.02(t) of the Agreement.
"CERCLA" means the United States Comprehensive Environmental Response,
Compensation and Liability Act.
"CLOSING" as defined in Section 4.01(a) of the Agreement.
"CLOSING TANGIBLE NET BOOK VALUE" as defined in Section 3.01 of the
Agreement.
"CLOSING TIME" as defined in Section 4.01(a) of the Agreement.
"COBRA" as defined in Section 6.26(a) of the Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended including
rules issued and regulations promulgated thereunder.
"CONSENT" means any consent, approval, authorization, waiver, permit,
grant, franchise, concession, agreement, license, exemption novation or order
of, registration, certificate, declaration or filing with, or report or notice
to, any Person, including but not limited to any Governmental Authority.
"CONSENTS TO TRANSFER" as defined in Section 2.06(b) of the Agreement.
"CONSIGNED INVENTORIES" as defined in Section 2.03(k) of the Agreement.
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"CONTINUING OBLIGATIONS" as defined in Section 2.10 of the Agreement.
"CUSTOMER CONTRACTS" as defined in Section 2.02(f) of the Agreement.
"CS PRINTING" means CS Printing, Inc.
"CS PRINTING SHARES" as defined in the Recitals of the Agreement.
"CWA" means the United States Clean Water Act.
"DAMAGES" means all damages, costs, expenses, losses, liabilities,
judgments, awards, fines, sanctions, diminution in value, penalties, charges and
settlement payments (including, without limitation, all reasonable costs, fees
and expenses of attorneys, experts, accountants, appraisers, consultants,
witnesses, and investigators in connection with defending or settling a Third
Party Claim or enforcing this Agreement) and interest on cash disbursements in
respect of any of the foregoing at the prime interest rate of The Bank of New
York in effect from time to time from the date each such cash disbursement is
made until the party incurring the same shall have been indemnified in respect
thereof.
"DESIGNATED ENKEL CUSTOMER CONTRACTS" as defined in Section 8.12(a) of
the Agreement.
"DESIGNATED PURCHASER" as defined in Recitals of the Agreement.
"DISPUTE NOTICE" as defined in Section 3.04(b) of the Agreement.
"DISPUTE NOTIFICATION" as defined in Section 11.06(d) of the Agreement.
"DOLLARS" or "$" means United States Dollars.
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"EMPLOYEES" as defined in Section 6.25(a) of the Agreement.
"ENVIRONMENT" means (i) any surface or ground water, (ii) surface or
subsurface soil and land strata, (iii) buildings or facilities in which there
has been a release, (iv) air, and (v) natural resources including, wildlife,
fish and plant life.
"ENVIRONMENTAL LAWS" means any and all applicable current or future
foreign, federal, state and local laws, statutes, ordinances, rules,
regulations, and any applicable judicial or governmental orders, decrees,
rulings, actions and agreements which are related to the contamination,
remediation or protection of the Environment or human health or safety
(including, without limitation, CERCLA, RCRA, CAA, CWA, the Hazardous Materials
Transportation Act, TSCA and the Emergency Planning & Community Right-to-Know
Act and their foreign equivalents), and any rule or doctrine of any common law
related to the contamination, remediation or protection of human health or
safety (including, without limitation, contribution, strict liability,
negligence, trespass and nuisance).
"ENVIRONMENTAL LOSSES" as defined in Section 11.06(d) of the Agreement.
"ENVIRONMENTAL RESPONSE PROPOSAL" as defined in Section 11.06(d) of the
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974 as
amended and in effect on the date hereof, including rulings issued and
regulations promulgated thereunder.
"ESTIMATED PURCHASE PRICE" as defined in Section 3.03 of the Agreement.
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"EXCLUDED ASSETS" as defined in Section 2.03 of the Agreement.
"EXCLUDED EMPLOYEE" as defined in Section 9.01(b) of the Agreement.
"EXCLUDED LIABILITIES" as defined in Section 2.05 of the Agreement.
"EXTENDED CLOSING TIME" as defined in Section 12.02(a) of the
Agreement.
"FINAL STATEMENT" as defined in Section 3.04(a) of the Agreement.
"FINANCIAL STATEMENTS" as defined in Section 6.05(a) of the Agreement.
"FIXED ASSETS" as defined in Section 2.02(a) of the Agreement.
"FORMER FACILITY" means any facility formerly owned, leased or operated
by the Roll Handling Group, including, without limitation, any facility which
has been sold, shut-down or otherwise disposed of by or on behalf of the Roll
Handling Group.
"GAAP" means generally accepted United States accounting principles as
generally promulgated by the Financial Accounting Standards Board (FASB) and the
American Institute of Certified Public Accountants (AICPA) applied on a
consistent basis.
"GOVERNMENTAL AUTHORITY" means (i) the United States of America, any
State thereof, or any court, department, commission, board, bureau, agency or
instrumentality of the United States of America, any State thereof, or political
subdivision of any of them, (ii) any other body, authority or agency exercising
any form of regulatory authority under any applicable Legal Requirement, (iii)
any quasi-governmental court, body, agency or authority, (iv) any corporation
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established by or at the direction of any of the foregoing and authorized by
statute to exercise regulatory authority, and (v) any foreign government or
governmental authority comparable to any of the foregoing.
"HAZARDOUS SUBSTANCES" means any substances or materials which are,
include, or contain any "hazardous substances" under CERCLA Section 101(14),
"hazardous air pollutants" under CAA Section 112(b), "imminently hazardous
chemical substances" under TSCA Section 7, "pollutants or contaminants" under
CERCLA Section 101(33) and "hazardous waste" under Solid Waste Disposal Act
Section 1004(5), "hazardous waste" under RCRA 42 U.S.C. Section 6903(5),
petroleum and petroleum products including crude oil and any fractions thereof;
asbestos, natural gas, synthetic gas and any mixtures thereof; radon,
radioactive substances, urea, formaldehyde, polychlorinated biphenyls or any
other substance or material which are currently the subject of a liability or
obligation under any Environmental Law.
"INACTIVE EMPLOYEE" means any Employee who is not as of the Closing
Time actively performing his or her work during normal scheduled business hours
because he or she is on leave of absence, layoff, suspension, sick leave,
workers' compensation, short-term or long-term disability, family leave,
military leave or other absence from work.
"INDEMNIFIED LIABILITIES" as defined in Section 2.11 of the Agreement.
"INDEMNIFIED PARTY" as defined in Section 11.04(a) of the Agreement.
"INDEMNIFYING PARTY" as defined in Section 11.04(a) of the Agreement.
"INDEMNITY NOTICE" as defined in Section 11.04(a) of the Agreement.
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"INTELLECTUAL PROPERTY" means any and all United States and foreign:
(a) patents (including, without limitation, utility patents, design patents,
reissued and reexamined patents industrial designs and utility models),
inventors certificates and patent applications (including docketed patent
disclosures awaiting filing determination or preparation, reissues, revisions,
reexaminations, divisions, continuations, continuations-in-part and extensions),
all extensions, the right to claim priority, and any improvements to any of the
foregoing; (b) trademarks, trade names, service marks, service names, fictitious
names, telephone numbers, trade dress, symbols, marks, logos, business and
product names, slogans and rights to obtain renewals and extensions thereof and
registrations and applications for registration thereof together with all
translations, adaptations, derivations, and combinations thereof; (c) works
authorship (whether or not copyrightable and/or registerable and whether or not
registered), including, without limitation, work of art and computer software,
patterns and designs and copyright registrations, registration applications and
rights to obtain renewals and extensions thereof; (d) inventions (whether
patentable or unpatentable and whether or not reduced to practice), processes,
designs, formulae, trade secrets, proprietary knowledge, know-how, industrial
models, technical information, manufacturing, engineering and technical
drawings, product specifications, compositions, customer and supplier lists,
research and development, manufacturing and production processes and techniques,
price and cost information and strategic plans and all other confidential
business and commercial information; (e) mask work and other semiconductor chip
rights and registrations thereof; (f) computer software and all related data,
user and system documentation, source code, and functional and design
specifications; (g) intellectual property rights similar to any of the
foregoing; (h) all books, records, documents, drawings, tapes, disks or other
media or tangible embodiments of any of the foregoing (in whatever form or
media, including electronic and magnetic media) and (i) all goodwill pertaining
to any of the foregoing.
"INTERESTS" as defined in Section 2.06(a) of the Agreement.
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"INTERIM BALANCE SHEET" as defined in Section 6.05(a) of the Agreement.
"INTERIM FINANCIAL STATEMENTS" as defined in Section 6.05(a) of the
Agreement.
"INVENTORIES" as defined in Section 2.02(b) of the Agreement.
"LEGAL DISPUTE" as defined in Section 11.11(a) of the Agreement.
"LEGAL REQUIREMENT" means any federal, state, local, municipal,
foreign, international, or administrative, constitution, law, ordinance,
principle of common law, regulation, statute, treaty or order, as in effect on
the date hereof and as amended, re-enacted, consolidated or replaced or as their
application is modified from time to time, and whether before or after the date
of this Agreement. Any reference in this Agreement to any specific Legal
Requirement of a jurisdiction shall be deemed to include in respect of any other
jurisdiction the applicable Legal Requirement in such other jurisdiction which
is most similar to such referenced Legal Requirement.
"LIEN" means, except for Permitted Liens, any other lien, mortgage,
security interest, pledge, deed of trust, option to purchase, right of first
refusal or first offer, or lease, restriction, easement, covenant restriction,
cloud, claim, community property interest, equitable interest or other charge or
encumbrance upon or with respect to any real or personal, tangible or
intangible, right or property of any character whatsoever.
"LISTED ORDER" as defined in Section 6.16(a) of the Agreement.
"LISTED PERMITS" as defined in Section 2.02(c) of the Agreement.
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"MARKS" as defined in Section 6.22(a) of the Agreement.
"MATERIAL ADVERSE EFFECT" as defined in Section 6.07(a) of the
Agreement.
"MEGTEC" means MEGTEC Systems, Inc.
"MEGTEC BENEFIT PLANS" as defined in Section 9.01(a) of the Agreement.
"MEGTEC ENTITY" as defined in Section 11.02 of the Agreement.
"MEGTEC'S KNOWLEDGE" as defined in Section 1.04 of the Agreement.
"MIGRATE" means seeping, leaching, or other movement of Hazardous
Substances through the soil, land, surface or subsurface strata, surface or
ground water or sediments.
"NEUTRAL ACCOUNTANTS" as defined in Section 3.04(c) of the Agreement.
"ORDER" as defined in Section 6.16(a) of the Agreement.
"OTHER CONTRACTS" as defined in Section 2.02(g) of the Agreement.
"PATENT APPLICATIONS" as defined in Section 6.22(a) of the Agreement.
"PATENTS" as defined in Section 6.22(a) of the Agreement.
"PARTIES" as defined in Section 1.02 of the Agreement.
"PENSION PLANS" as defined in Section 6.26(a) of the Agreement.
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"PERMITS" means any authorization, approval, franchise, orders,
consent, license, permit, registration, waiver or certificate issued, granted,
given, or otherwise made available by or under the authority of any Governmental
Authority or pursuant to any Legal Requirement.
"PERMITTED LIENS" means any and all: (i) zoning, subdivision and other
real property related ordinances and regulations which do not prohibit or
restrict the present use of any of the Roll Handling Group Facilities; (ii)
taxes and assessments both general and special which are a lien but not yet due
and payable at the Closing Time and provided for on the face of the Final
Statement; (iii) liens, easements, covenants, conditions, reservations and
restrictions of record, if any, as have been approved in writing by MEGTEC prior
to the Closing Time; (iv) materialmen's, mechanics', repairmen's, contractors',
operators' or other similar Liens or charges incidental to construction,
maintenance or operation of any Roll Handling Group Facilities and securing
obligations provided for on the face of the Final Statement; and (v) the items
listed on EXHIBIT Z.
"PERSON" means any individual, partnership, trust, incorporated or
unincorporated association, joint venture, joint stock company, estate, trust,
organization, labor union, Governmental Authority or other legal entity of any
kind, other than the Parties.
"PERSONAL PROPERTY LEASES" as defined in Section 2.02(h) of the
Agreement.
"PREPAIDS" as defined in Section 2.02(o) of the Agreement.
"PROCEEDING" as defined in Section 5.06 of the Agreement.
"PURCHASE PRICE" as defined in Section 3.01 of the Agreement.
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"PURCHASE PRICE ADJUSTMENT" as defined in Section 3.04(a) of the
Agreement.
"PURCHASED ASSETS" as defined in Section 2.02 of the Agreement.
"RCRA" means the United States Resource Conservation and Recovery Act.
"REAL ESTATE LEASES" as defined in Section 2.02(s) of the Agreement.
"RECEIVABLES" as defined in Section 2.02(i) of the Agreement.
"RELATED PERSON" means with respect to any Person: (i) any Affiliate of
such Person or of any shareholder, officer, director or employee of such Person,
and (ii) any shareholder, officer, director or employee of such Person.
"RESTRICTED PERIOD" as defined in Section 8.02(a) of the Agreement.
"RETAINED ACCOUNTS PAYABLE" as defined in Section 2.10(a) of the
Agreement.
"RETAINED ACCRUED EXPENSES" as defined in Section 2.10(b) of the
Agreement.
"RETAINED ASSETS" as defined in Section 2.09 of the Agreement.
"RETAINED BUSINESS RECORDS" as defined in Section 2.09(q) of the
Agreement.
"RETAINED CASH" as defined in Section 2.09(s) of the Agreement.
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"RETAINED CUSTOMER CONTRACTS" as defined in Section 2.09(f) of the
Agreement.
"RETAINED FIXED ASSETS" as defined in Section 2.09(a) of the Agreement.
"RETAINED INVENTORIES" as defined in Section 2.09(b) of the Agreement.
"RETAINED LISTED PERMITS" as defined in Section 2.09(c) of the
Agreement.
"RETAINED LEASES" as defined in Section 2.09(h) of the Agreement.
"RETAINED OTHER CONTRACTS" as defined in Section 2.09(g) of the
Agreement.
"RETAINED PREPAIDS" as defined in Section 2.09(o) of the Agreement.
"RETAINED RECEIVABLES" as defined in Section 2.09(i) of the Agreement.
"RETAINED SHARED INTELLECTUAL PROPERTY" as defined in Section 2.09(p)
of the Agreement.
"RETAINED SUPPLIER CONTRACTS" as defined in Section 2.09(e) of the
Agreement.
"ROCKFORD FACILITY" means the facility owned by Baldwin Enkel and
located at 8155 Burden Road, Rockford, Illinois 61132.
"ROLL HANDLING BUSINESS" as defined in the Recitals of the Agreement.
"ROLL HANDLING GROUP" as defined in the Recitals of the Agreement.
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"ROLL HANDLING GROUP FACILITIES" as defined in Section 6.12(a) of the
Agreement.
"SCHEDULE" means the schedule delivered by Baldwin Asia, Baldwin Enkel
and Baldwin Technology with this Agreement.
"SEQUA" means Sequa Corporation.
"SHANGHAI FACILITY" means the facility leased by Baldwin Printing and
located at 799 Wu Bao Road, Min Hang District, Shanghai 201101 China.
"SHARED INTELLECTUAL PROPERTY" means any Intellectual Property shared
by Baldwin Technology or any of its Affiliates (except any member of the Roll
Handling Group), on the one hand, and any member of the Roll Handling Group, on
the other hand.
"SHARED MARKS" as defined in Section 6.23(a) of the Agreement.
"SHARED PATENT APPLICATIONS" as defined in Section 6.23(a) of the
Agreement.
"SHARED PATENTS" as defined in Section 6.23(a) of the Agreement.
"SIGNIFICANT CUSTOMERS" means with respect to the Business the ten
customers to whom the Business had the highest sales in each of the years ended
June 30, 1999 and 2000 and during the period July 1, 2001 to May 31, 2001.
"SIGNIFICANT SUPPLIERS" as defined in Section 6.34(a) of the Agreement.
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"SOLE DISCRETION" as defined in Section 1.03 of the Agreement.
"SUPPLEMENT" as defined in Section 7.08 of the Agreement.
"SUPPLIER CONTRACTS" as defined in Section 2.02(e) of the Agreement.
"TSCA" means the United States Toxic Substances Control Act.
"TAX RETURN" means any return (including any information return),
report, statement, schedule, notice, form, or other document or information
filed with or submitted to, or required to be filed with or submitted to, any
Governmental Authority in connection with the determination, assessment,
collection, or payment of any Tax or in connection with the administration,
implementation, or enforcement of or compliance with any Legal Requirement
relating to any Tax.
"TAXES" means all taxes, levies, imposts, fees, duties and other like
charges of any nature whatsoever imposed by a Governmental Authority responsible
for the imposition of any such Tax ("Taxing Authority"), including, without
limiting the generality of the foregoing, all income, sales, use, ad valorem,
stamp, transfer, payroll, franchise and intangible taxes and fees of any nature
upon properties or assets, whether tangible or intangible, or upon the income,
receipts, payrolls, transactions, net worth, capital, investment or franchise of
a person or entity (including all sales, use, withholding and other taxes which
a person or entity is required by law to collect and pay over to, or to pay to,
any Taxing Authority), together with any and all additions thereto and penalties
and interest payable with respect thereto or to any assessment or collection
thereof.
"TAXING AUTHORITY" is defined under the definition of Taxes.
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"THIRD PARTY CLAIM" means with respect to any party, the assertion of a
claim or demand or commencement of any Proceeding against such party by any
Person.
"THREATENED" means a Proceeding, claim, dispute, action, or other
matter will be deemed to have been "Threatened" if any demand or statement has
been made in writing or any notice has been given in writing, or if any other
event has occurred or any other circumstances exists, in each case, of which
Baldwin has Knowledge, that would lead a prudent person to conclude that such
Proceeding, claim, dispute, action, or other matter is likely to be asserted,
commenced, taken, or otherwise pursued in the future.
"THRESHOLD AMOUNT" as defined in Section 11.05(e) of the Agreement.
"TRANSFER" as defined in Section 2.06(a) of the Agreement.
"TRANSFERRED ASSETS" as defined in Section 2.07 of the Agreement.
"TRANSFERRED EMPLOYEES" as defined in Section 9.01 of the Agreement.
"WARN" as defined in Section 6.25(g) of the Agreement.
"WELFARE PLANS" as defined in Section 6.26(a) of the Agreement.
"YEAR-END FINANCIALS" as defined in Section 6.05(a) of the Agreement.
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