EXHIBIT 10.17
ASSET AND STOCK PURCHASE AGREEMENT
Between
AMCOL INTERNATIONAL CORPORATION
and
BASF AKTIENGESELLSCHAFT
Dated November 22, 1999
* An asterisk represents certain material which has been omitted pursuant to a
request for confidential treatment filed with the Securities and Exchange
Commission. Such omitted material has been filed separately with the SEC.
TABLE OF CONTENTS
Section
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms...............................................................................2
ARTICLE II
PURCHASE AND SALE
2.01. Purchase and Sale of the Shares....................................................................13
2.02. Assets to be Sold..................................................................................13
2.03. Assumption and Exclusion of Liabilities............................................................15
2.04. Purchase Price; Allocation of Purchase Price.......................................................17
2.05. Closing............................................................................................18
2.06. Closing Deliveries by Parent.......................................................................18
2.07. Closing Deliveries by the Purchaser................................................................18
2.08. Statement of Working Capital.......................................................................19
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
3.01. Organization, Authority and Qualification of the Sellers...........................................21
3.02. Organization, Authority and Qualification of the Company and SAP Thai..............................21
3.03. Capital Stock of the Company and SAP Thai; Ownership of the Shares.................................22
3.04. Corporate Books and Records........................................................................23
3.05. No Conflict........................................................................................23
3.06. Governmental Consents and Approvals................................................................23
3.07. Financial Statements...............................................................................23
3.08. No Undisclosed Liabilities.........................................................................24
3.09. Receivables........................................................................................24
3.10. Inventories........................................................................................25
3.11. Conduct in the Ordinary Course; Absence of Certain Changes,
Events and Conditions..........................................................................25
3.12. Litigation.........................................................................................27
3.13. Compliance with Laws...............................................................................28
3.14. Environmental Matters..............................................................................28
3.15. Material Contracts.................................................................................30
3.16. Intellectual Property..............................................................................31
3.17. Real Property......................................................................................34
3.18. Tangible Personal Property.........................................................................36
3.19. Assets.............................................................................................37
3.20. Employee Benefit Matters...........................................................................37
3.21. Labor Matters......................................................................................42
Section Page
3.22. Key Employees......................................................................................43
3.23. Taxes..............................................................................................43
3.24. Insurance..........................................................................................45
3.25. Brokers............................................................................................47
3.26. Disclaimer.........................................................................................47
3.27. Disclosure Schedule................................................................................47
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
4.01. Organization and Authority of the Purchaser........................................................47
4.02. No Conflict........................................................................................48
4.03. Governmental Consents and Approvals................................................................48
4.04. Investment Purpose.................................................................................48
4.05. Litigation.........................................................................................48
4.06. Purchaser Financial Statements.....................................................................49
4.07. Brokers............................................................................................49
4.08. Disclaimer.........................................................................................49
ARTICLE V
ADDITIONAL AGREEMENTS
5.01. Conduct of Business Prior to the Closing...........................................................49
5.02. Access to Information..............................................................................50
5.03. Confidentiality....................................................................................51
5.04. Stockholders' Meeting..............................................................................51
5.05. Proxy Statement....................................................................................52
5.06. Regulatory and Other Authorizations; Notices and Consents..........................................52
5.07. Notice of Developments.............................................................................54
5.08. No Solicitation or Negotiation.....................................................................54
5.09. Use of Intellectual Property.......................................................................55
5.10. Non-Competition....................................................................................56
5.11. Release of Indemnity Obligations...................................................................57
5.12. Termination of Intercompany Agreements.............................................................57
5.13. Transition Services Agreement......................................................................57
5.14. CETCO Supply Agreement.............................................................................58
5.15. Acrylic Acid Supply Agreement......................................................................58
5.16. License Agreement..................................................................................58
5.17. SAP Subleases......................................................................................58
5.18. Product/Material Rebates...........................................................................58
5.19. ION Exchange License Agreement.....................................................................58
5.20. Mixed-Use Assets...................................................................................58
5.21. Termination of SAP Indebtedness....................................................................59
Section Page
5.22. Termination of the Celanese Supply Agreement.......................................................59
5.23. Uncashed Cheques...................................................................................59
5.24. Access to Insurance................................................................................59
5.25. Patent Opinions....................................................................................60
5.26. Thai Facility......................................................................................60
5.27. * Obligations......................................................................................60
5.28. * Regional Assistance Grants.......................................................................60
5.29. Thai Facility Construction Contracts...............................................................61
5.30. Further Action.....................................................................................61
ARTICLE VI
EMPLOYEE MATTERS
6.01. Transferred Employees..............................................................................61
6.02. Severance Obligations..............................................................................61
6.03. Employee Benefit Plans.............................................................................62
6.04. Pension Plans......................................................................................63
6.05. U.S. Employee Information..........................................................................64
6.06. Workers' Compensation Obligation for U.S. Transferred Employees....................................64
6.07. Provisions Relating to U.K. Employees..............................................................64
6.08. Provisions Relating to Thai Employees..............................................................65
6.09. Retained Obligations of Parent.....................................................................65
6.10. Employee Stock Options.............................................................................66
ARTICLE VII
TAX MATTERS
7.01. Indemnity..........................................................................................67
7.02. Returns and Payments...............................................................................68
7.03. Contests...........................................................................................69
7.04. Time of Payment....................................................................................70
7.05. Cooperation and Exchange of Information............................................................70
7.06. Conveyance Taxes...................................................................................71
7.07. Section 338 Election...............................................................................71
7.08. Miscellaneous......................................................................................72
ARTICLE VIII
CONDITIONS TO CLOSING
8.01. Conditions to Obligations of Parent................................................................73
8.02. Conditions to Obligations of the Purchaser.........................................................74
Section Page
ARTICLE IX
INDEMNIFICATION
9.01. Survival of Representations and Warranties.........................................................77
9.02. Indemnification by Parent..........................................................................77
9.03. Indemnification by the Purchaser...................................................................80
9.04. Indemnification Procedures.........................................................................81
9.05. Limits on Indemnification..........................................................................82
9.06. Waiver of Other Remedies...........................................................................83
ARTICLE X
TERMINATION AND WAIVER
10.01. Termination........................................................................................83
10.02. Effect of Termination..............................................................................85
10.03. Fees and Expenses..................................................................................85
ARTICLE XI
GENERAL PROVISIONS
11.01. Expenses...........................................................................................86
11.02. Notices............................................................................................86
11.03. Public Announcements...............................................................................87
11.04. Headings...........................................................................................88
11.05. Severability.......................................................................................88
11.06. Entire Agreement...................................................................................88
11.07. Assignment.........................................................................................88
11.08. Third Party Beneficiaries..........................................................................88
11.09. Amendment..........................................................................................88
11.10. Waiver.............................................................................................88
11.11. Governing Law......................................................................................89
11.12. Counterparts.......................................................................................89
11.13. Specific Performance...............................................................................89
EXHIBITS
Exhibit 1.01 - Other Sellers
Exhibit 1.01(a) - SAP Thai Shareholders
Exhibit 1.01(b) - Executive Officers of the Other Sellers
Exhibit 1.01(c) - Managers/Persons with Knowledge
Exhibit 1.01(d) - SAP Real Property
Exhibit 1.01(e) - Thai Recordings
Exhibit 2.04(b) - Purchase Price Allocation
Exhibit 2.08 - Working Capital
Exhibit 5.02 - Access to Information
Exhibit 5.10(c) - Certain Employees
Exhibit 5.11 - Release of Indemnity Obligations
Exhibit 5.12 - Continuing Intercompany Agreements
Exhibit 5.13 - Transition Services Agreement
Exhibit 5.14 - CETCO Supply Agreement
Exhibit 5.15 - Acrylic Acid Supply Agreement
Exhibit 5.16 - License Agreement
Exhibit 5.17 - SAP Subleases
Exhibit 5.19 - ION Exchange License Agreement
Exhibit 5.26 - Definition of Mechanically Complete
Exhibit 5.27 - * Obligations
ASSET AND STOCK PURCHASE AGREEMENT dated November 22, 1999 between AMCOL
International Corporation, a Delaware corporation ("Parent"), and BASF
Aktiengesellschaft, a corporation organized under the laws of Germany (the
"Purchaser").
W I T N E S S E T H:
WHEREAS, Parent and its Subsidiaries (as defined herein) have been and are
engaged in various businesses, including, without limitation, the business of
researching, developing, manufacturing, marketing, distributing, supplying and
selling Superabsorbent Polymers (as defined herein) and other products
comprising Superabsorbent Polymers (such business being, the "SAP Business") (it
being understood and agreed that the SAP Business does not include the Poly-Pore
Business (as defined herein));
WHEREAS, the Purchaser wishes to acquire the SAP Business conducted by
Parent, its subsidiaries, Chemdal Corporation, a Delaware corporation (the
"Company"), and Chemdal Asia Ltd. (Thailand), a Thai corporation ("SAP Thai"),
and the other sellers listed on Exhibit 1.01 hereto (such other sellers listed
on Exhibit 1.01 being, the "Other Sellers"; and the Other Sellers together with
Parent being, the "Sellers"; any of the Sellers individually being, a "Seller");
WHEREAS, Chemdal International Corporation, a Delaware corporation and
wholly owned subsidiary of Parent ("Chemdal International Sub"), owns all of the
issued and outstanding shares (the "Company Shares") of common stock, $0.01 par
value per share (the "Company Common Stock"), of the Company;
WHEREAS, Chemdal Holdings B.V., a Netherlands corporation and wholly owned
subsidiary of Parent ("Chemdal Netherlands Sub"), and the Persons listed on
Exhibit 1.01(a) hereto own all of the issued and outstanding ordinary shares of
SAP Thai (the "Thai Shares"; and the Thai Shares together with the Company
Shares being, the "Shares");
WHEREAS, Parent wishes to sell, and to cause the Other Sellers to sell, to
the Purchaser, and the Purchaser wishes to purchase from Parent and the Other
Sellers, the SAP Business and the Shares, as applicable, upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, the Purchaser and Parent hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms (a) As used in this Agreement, the
following terms shall have the following meanings:
"Action" means any claim, action, suit, arbitration or proceeding by or
before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any other Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person.
"After-Tax Basis" means, with respect to any payment to be received or
accrued by any Person, the amount of such payment supplemented by a further
payment or payments (which will be payable simultaneously with the initial
payment or, in the event that Taxes resulting from the receipt or accrual of
such initial payment are not payable for the year of receipt or accrual, at the
time or times that such Taxes become payable) so that the sum of all such
initial and supplemental payments, after deduction of all Taxes imposed by any
taxing authority in respect of or
attributable to the receipt or accrual of such initial and supplemental payments
(whether or not such Taxes are payable for the year of receipt or accrual), and
after taking into account the net present value of any Tax benefit realized by
such Person with respect to the loss or other amount that gave rise to such
initial payment (using a discount rate of 10%), will be equal to the amount of
the initial payment to be so received or accrued.
"Agreement" or "this Agreement" means this Asset and Stock Purchase
Agreement dated November 22, 1999 between Parent and the Purchaser (including
the Exhibits hereto and the Disclosure Schedule) and all amendments hereto made
in accordance with the provisions of Section 11.09.
"Assumption Agreements" means the Assumption Agreements to be executed by
the Purchaser or certain of its designated Affiliates on the Closing Date.
"Bills of Sale" means the ▇▇▇▇ of Sale to be executed by Parent, the ▇▇▇▇
of Sale to be executed by Chemdal Limited (U.K.), a United Kingdom corporation
and a wholly owned Subsidiary of Parent ("Chemdal U.K."), and the Bills of Sale
to be executed by any other Persons selling assets to the Purchaser or its
designated Affiliates hereunder, in each case, on the Closing Date; which Bills
of Sale shall be consistent in all respects with, and will not impose any
liabilities or obligations other than those imposed by, this Agreement or any
applicable Law.
"Board" means the board of directors of Parent or the executive board of
directors of the Purchaser, as applicable.
"Business Day" means any day that is not a Saturday, a Sunday or other day
on which banks are required or authorized by Law to be closed in The City of New
York.
"Business Intellectual Property" means all Intellectual Property in and to
which any Seller holds, or has a right to hold, any right, title or interest,
and all Intellectual Property licensed or sublicensed to a Seller from a third
party, in each case, used primarily in, developed primarily for, or relating
primarily to, the SAP Business, including the ION Exchange Intellectual
Property.
"Code" means the Internal Revenue Code of 1986, as amended through the date
hereof.
"Company Intellectual Property" means all Intellectual Property in and to
which the Company holds, or has a right to hold, any right, title or interest,
and all Intellectual Property licensed or sublicensed to the Company from a
third party, in each case, used primarily in, developed primarily for, or
relating primarily to, the SAP Business, including the ION Exchange Intellectual
Property.
"control" (including the terms "controlled by" and "under common control
with"), with respect to the relationship between or among two or more Persons,
means the possession, directly or indirectly or as trustee or executor, of the
power to direct or cause the direction of the affairs or management of a Person,
whether through the ownership of voting securities, as trustee or executor, by
contract or otherwise, including, without limitation, the ownership, directly or
indirectly, of securities having the power to elect a majority of the board of
directors or similar body governing the affairs of such Person.
"Disclosure Schedule" means the Disclosure Schedule attached hereto, dated
as of the date hereof, and forming a part of this Agreement.
"Encumbrance" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and Tax liens), charge,
encumbrance, written adverse claim, preferential arrangement or restriction of
any kind, including, without limitation, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of ownership,
except for any Encumbrance arising from the transactions contemplated by this
Agreement or any action by the Purchaser.
"Environment" means surface waters, groundwater, surface water sediment,
soil, subsurface strata, ambient air and any other environmental medium.
"Environmental Claims" means any and all Actions, suits, demands, demand
letters, claims, liens, notices of non-compliance or violation, notices of
liability or potential liability, investigations, proceedings, consent orders or
consent agreements relating in any way to any Environmental Law, any
Environmental Permit or any Hazardous Material or arising as a result of the
presence of gases occurring naturally, geologically or otherwise.
"Environmental Law" means any applicable Law, rule or regulation, in each
case in effect and as amended as of the Closing, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to pollution or protection of the
Environment, health, safety or natural resources or to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials; provided, however, that the term Environmental Law shall also include
the U.K. Environment Act of 1995, as amended.
"Environmental Permit" means any permit (or permit application pursuant to
which comparable operations may be conducted in compliance with Environmental
Law), approval, identification number, license or other written authorization
required to operate the SAP Business or the SAP Real Property under any
applicable Environmental Law.
"Governmental Authority" means any United States federal, state or local or
any non-U.S. government, governmental, regulatory or administrative authority,
state enterprise, agency or commission or any court, tribunal, or judicial or
arbitral body.
"Governmental Order" means any order, writ, judgment, injunction, decree,
stipulation, determination or award entered by or with any Governmental
Authority.
"Hazardous Materials" means (a) petroleum and petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials and polychlorinated biphenyls, and (b) any other chemicals, materials
or substances regulated as toxic or hazardous or as a pollutant, contaminant or
solid waste, in each case, as regulated under any applicable Environmental Law.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder.
"Indebtedness" means, with respect to any Person, (a) all indebtedness of
such Person, whether or not contingent, for borrowed money, (b) all obligations
of such Person for the deferred purchase price of property or services, (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of Parent or lender
under such agreement in the event of default are limited to repossession or sale
of such property), (e) all obligations of such Person as lessee under leases
that have been or should be, in accordance with U.S. GAAP, recorded as capital
leases, (f) all obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities, (g) all Indebtedness of
others referred to in clauses (a) through (f) above guaranteed directly or
indirectly in any manner by such Person, and (h) all Indebtedness referred to in
clauses (a) through (f) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Encumbrance on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness.
"Indemnified Products" means any Superabsorbent Polymer (i) manufactured
prior to the Closing Date by the Sellers, SAP Thai or the Company, and/or (ii)
manufactured subsequent to the Closing Date by the Purchaser in the same manner
as manufactured by the Sellers, SAP Thai or the Company prior to the Closing
Date; provided, however, that (A) Indemnified Products shall also include any
Superabsorbent Polymers that are not manufactured in the same manner as
manufactured by the Sellers, SAP Thai or the Company prior to the Closing Date
to the extent any difference between the method of manufacture (including
processes and ingredients) employed by a Purchaser Indemnified Party after the
Closing Date and the method of manufacture used by the Sellers, SAP Thai or the
Company prior to the Closing Date is not the cause of infringement, and (B)
Indemnified Products shall not include any Superabsorbent Polymers (whether or
not evaluated by Parent and/or one of the Sellers) (x) manufactured by the
Purchaser prior to the Closing Date, or (y) manufactured by the Purchaser after
the Closing Date to the extent
that such products and processes are not directly related to the SAP Business
acquired by the Purchaser and its designated Affiliates pursuant to this
Agreement.
"Intellectual Property" means United States, international, and non-U.S.
(i) patents and patent applications, (ii) registered and unregistered trademarks
and service marks, including, without limitation, the goodwill associated
therewith, (iii) registered and unregistered copyrights, and (iv) confidential
and proprietary information, including, without limitation, trade secrets and
know-how.
"Inventories" means all inventory, merchandise, finished goods,
work-in-progress, raw materials, repair parts and supplies maintained, held or
stored for use in the SAP Business by or on behalf of the Company, SAP Thai or
the Sellers and any prepaid deposits for any of the same.
"ION Exchange Intellectual Property" means the following patent
applications, together with any patents issuing therefrom, including all
divisionals, continuations, continuations-in-part, reissues, reexaminations, and
global counterparts thereto, together with the proprietary information,
know-how, trade secrets, data, processes and formulae relating to the claimed
subject matter described therein, existing as of the Closing Date: *
"IRS" means the Internal Revenue Service of the United States.
"Law" means any federal, state, local or non-U.S. statute, law, ordinance,
regulation, rule, code, order, other requirement or rule of law.
"Liabilities" means any and all debts, liabilities and obligations, whether
accrued or fixed, absolute or contingent, matured or unmatured or determined or
determinable, including, without limitation, those arising under any Law
(including, without limitation, any Environmental Law), Action, investigation or
Governmental Order and those arising under any contract, agreement, commitment
or undertaking.
"Licensed Intellectual Property" means all Seller Intellectual Property
licensed to the Purchaser or one or more of its designated Affiliates pursuant
to Section 5.16 of this Agreement.
"Material Adverse Effect" means any change or effect that (i) is reasonably
likely to be materially adverse to the business, financial condition or results
of operations of the SAP Business, taken as a whole, or (ii) when taken together
with all other adverse changes, effects or exceptions that are within the scope
of the representations and warranties made by the Sellers in this Agreement and
which are not individually deemed to have a Material Adverse Effect, is
reasonably likely to be materially adverse to the business, financial condition
or results of operations of the SAP Business, taken as a whole, other than any
change, effect, event or occurrence to the extent arising from or relating to
(x) actions taken pursuant to the obligations of the parties expressly set forth
in this Agreement, or (y) the United States, the global economy or the
securities market in general, or the Superabsorbent Polymer industry in general;
provided, however, that the SAP Business, taken as a whole, is not materially
disproportionately affected, as compared to other Persons engaged in such
industry, by such change, effect, event or occurrence.
"* Patents" means any patent claiming priority from *, together with all
worldwide counterparts thereto, including continuations, continuations-in-part,
divisionals, reissues and reexaminations thereof, issued either (i) as of the
Closing Date or (ii) after the Closing Date, provided that the claim of any
patent that issued after the Closing Date which forms the basis of any
infringement claim or assertion of infringement against a Purchaser Indemnified
Party is not broader in scope (in respect of a material claim limitation) than
any claim of any patent claiming priority from the * issued as of the Closing
Date.
"Offsite Environmental Liabilities" means any Liabilities pursuant to
Environmental Law that arise from the transportation, or arrangement thereof, on
or before the Closing Date, of any Hazardous Material generated at SAP Real
Property to a site not at any time owned or operated by the Company, SAP Thai,
the Sellers (with respect to the SAP Business) or the SAP Business for the
purpose of disposal of such Hazardous Material at such site; provided, however,
that such term shall not mean the Release of any Hazardous Material from the SAP
Real Property
or any other property at any time owned or operated by the Company, SAP Thai,
the Sellers (with respect to the SAP Business) or the SAP Business to any area
surrounding or in the vicinity of such property.
"Parent's Accountants" means KPMG LLP, the independent accountants of
Parent.
"Parent's Knowledge" means the actual knowledge of (i) any of the executive
officers of Parent who will not become employees of Purchaser or its Affiliates
following the Closing pursuant to this Agreement, and (ii) any of the executive
officers of the Other Sellers listed on Exhibit 1.01(b) attached hereto who will
not become employees of Purchaser or its Affiliates following the Closing
pursuant to this Agreement, in each case, after making due inquiry of the
Persons listed on Exhibit 1.01(c) attached hereto.
"Permitted Encumbrances" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) liens for Taxes, assessments and governmental charges or
levies not yet due and payable (i) which are not in excess of $50,000 in the
aggregate or (ii) which are disclosed in the Agreement, disclosed or reflected
on the Financial Statements (as defined below) or included in the Disclosure
Schedule; (b) Encumbrances imposed by Law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's liens and other similar liens arising in
the ordinary course of business securing obligations that (x) are not overdue
for a period of more than 30 days and (y) are not in excess of $25,000 in the
case of a single property or $150,000 in the aggregate at any time or are
disclosed in the Agreement, disclosed or reflected on the Financial Statements
(as defined below) or included in the Disclosure Schedule; (c) pledges or
deposits to secure obligations under workers' compensation Laws or similar
legislation or to secure public or statutory obligations; and (d) minor survey
exceptions, reciprocal easement agreements and other customary encumbrances on
title to real property that (i) were not incurred in connection with any
Indebtedness, (ii) do not render title to the property encumbered thereby
unmarketable and (iii) do not, individually or in the aggregate, materially
adversely affect the use of such property in the manner being currently utilized
by Parent.
"Person" means any individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity, as well as any syndicate or
group that would be deemed to be a person under Section 13(d)(3) of the Exchange
Act.
"Poly-Pore Business" means the business of researching, developing,
manufacturing, marketing, distributing, supplying and selling of microporus, oil
and/or water sorbent polymers capable of entrapping solids and liquids, wherein
such polymers, their method of manufacture or use meet all of the limitations of
one or more claims of U.S. Patent Nos. 5,677,407; 5,830,967; 5,837,790;
5,608,005; 5,777,054; 5,712,358; 5,834,577; 5,830,960; 5,955,552; and
divisionals, continuations, continuations-in-part, reissues, and global
counterparts thereto (collectively being, the "Poly-Pore Patents"), including
the Poly-Pore Patents and the proprietary information, know-how, trade secrets,
data, processes, and formulae relating to the claimed subject matter described
in the Poly-Pore Patents.
"Purchase Price Bank Account" means a bank account in the United States to
be designated by Parent in a written notice to the Purchaser at least five
Business Days before the Closing.
"Purchaser's Accountants" means Deloitte & Touche LLP, the independent
accountants of the Purchaser.
"Receivables" means any and all accounts receivable, notes and other
amounts receivable from third parties, including, without limitation, customers,
arising from the conduct of the SAP Business before the Closing Date, whether or
not in the ordinary course, together with all unpaid financing charges accrued
thereon; provided, however, that the term shall not include any rights to
refunds for Taxes for any period, or any portion of any period, ending on or
prior to the Closing Date.
"Regulations" means the Treasury Regulations (including Temporary
Regulations) promulgated by the United States Department of Treasury with
respect to the Code or other federal tax statutes.
"Release" means disposing, discharging, injecting, spilling, leaking,
leaching, dumping, emitting, escaping, emptying, seeping, placing and the like
any Hazardous Materials into or upon any land or water or air or otherwise into
the Environment in a manner subject to regulation under the Environmental Laws.
"Remco Businesses" means any of the businesses conducted by Parent and its
Subsidiaries, other than the SAP Business.
"Remedial Action" means any investigation, assessment, monitoring,
treatment, excavation, removal, remediation or cleanup of Hazardous Materials in
the Environment.
"SAP Opinion" means any patent opinion prepared by counsel to Parent or its
Affiliates prior to Closing which relates to the Business Intellectual Property,
the Company Intellectual Property or the SAP Thai Intellectual Property.
"SAP Real Property" means the real property used in the SAP Business and
described in Exhibit 1.01(d) attached hereto.
"SAP Thai Intellectual Property" means all Intellectual Property in and to
which SAP Thai holds, or has a right to hold, any right, title or interest, and
all Intellectual Property licensed or sublicensed to SAP Thai from a third
party, in each case, used primarily in, developed primarily for, or relating
primarily to, the SAP Business, including the ION Exchange Intellectual
Property.
"Seller Intellectual Property" means all Intellectual Property in and to
which any Seller holds, or has a right to hold, any right, title and interest,
and all Intellectual Property licensed or sublicensed to a Seller, in each case,
other than the Business Intellectual Property.
"Sellers' Accountants" means KPMG LLP, the independent accountants of
Parent.
"Stock Option Plans" means, collectively, Parent's 1983 Incentive Stock
Option Plan, 1987 Non-Qualified Stock Option Plan (as amended and restated
effective as of January 1, 1993), 1993 Stock Option Plan and 1998 Long-Term
Incentive Stock Option Plan, and the Chemdal U.K. 1995 Share Option Scheme.
"Subsidiaries" means, with respect to any Person, any and all corporations,
partnerships, joint ventures, associations and other entities a majority of
whose outstanding voting interests or other equity securities are owned by such
Person, directly or indirectly through one or more Subsidiaries.
"Superabsorbent Polymers" means, lightly cross linked, organic, polymeric
materials capable of absorbing more than ten (10) times their own weight of a
standard sodium chloride solution under conditions which are specified in
Standard 440.199 of the European Disposable and Nonwovens Association which have
been evaluated by Parent and/or the Sellers for potential use in any Traditional
SAP Market Segments.
"Superior Proposal" means any Acquisition Proposal on terms which Parent's
Board determines, in its good faith judgment (after having received the advice
of a financial adviser of nationally recognized reputation), to be more
favorable to Parent and its stockholders than the transaction contemplated by
this Agreement and for which financing, to the extent required, is then
committed or, in the good faith judgment of Parent's Board, based upon the
written advice of its financial adviser, is reasonably capable of being obtained
by the third party bidder.
"Tax" or "Taxes" means any and all taxes, fees, levies, duties, tariffs,
imposts, and other charges of any kind (together with any and all interest,
penalties, additions to tax and additional amounts imposed with respect thereto)
imposed by any government or taxing authority or arising under any tax law or
tax indemnity or tax sharing agreement, including, without limitation: taxes or
other charges on or with respect to income, franchises, windfall or other
profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment compensation,
or net worth; taxes or other charges in the nature of excise, withholding, ad
valorem, stamp, transfer, value added, or gains taxes; license, registration and
documentation fees; and customs duties, tariffs, and similar charges.
"Thai Facility Construction Contracts" means the various construction
contracts listed on Section 3.15 of the Disclosure Schedule entered into prior
to the Closing between SAP Thai or its Affiliates, on the one hand, and certain
third parties, on the other hand, which relate to the construction of the Thai
Facility.
"Thai Recordings" means the recordings set forth on Exhibit 1.01(e).
"Traditional SAP Market Segments" means disposable hygienics (such as
diapers, adult incontinence products, and feminine care products), cable wraps,
fire retardants, freezer packs and food packaging liquid absorption.
"Transaction Agreements" means the Bills of Sale, the Assumption
Agreements, the Transition Services Agreement, the License Agreement, the Ion
Exchange License Agreement, the CETCO Supply Agreement, the Acrylic Acid Supply
Agreement and the SAP Subleases.
"Transaction Intellectual Property" means the Business Intellectual
Property, the Company Intellectual Property, the SAP Thai Intellectual Property
and the Licensed Intellectual Property.
"* Assistance Grants" means (i) the regional financial assistance grant in
the amount of * evidenced by a letter dated * from the * and (ii) the regional
financial assistance grant in the amount of * evidenced * from the *.
"U.S. GAAP" means United States generally accepted accounting principles
and practices as in effect from time to time and applied consistently throughout
the periods involved.
b) The following terms have the meaning set forth in the
Sections set forth below:
Defined Term Location of Definition
Acquisition Proposal 5.08
Acrylic Acid Supply Agreement 5.15
Adjusted Statement of Working Capital 2.08(b)(ii)
Allocation 7.07(b)
Assumed Liabilities 2.03(a)
Celanese Agreement 5.22
CETCO Supply Agreement 5.14
Chemdal International Sub Recitals
Chemdal Names 5.09(a)
Chemdal Netherlands Sub Recitals
Chemdal U.K. 1.01
Closing 2.05
Closing Date 2.05
COBRA Benefits 6.03(c)
Company Recitals
Company Common Stock Recitals
Company Shares Recitals
Confidentiality Agreement 5.03
Continuing Intercompany Indebtedness 2.04(c)
ERISA 3.20(a)
Exchange Act 5.05(a)
Excluded Assets 2.02(b)
Excluded Liabilities 2.03(b)
Expenses 10.03(b)
FAS No. 87 3.20(i)
Fee 10.03(a)
Financial Statements 3.07
Foreign Benefit Plan 3.20(i)
Indemnified Party 9.04
Indemnifying Party 9.04
Independent Accounting Firm 2.08(b)(ii)
ION Exchange License Agreement 5.19
License Agreement 5.16
Licensed Transaction Intellectual Property 3.16(a)
Loss 9.02
Loss Event 5.24
Material Contracts 3.15(a)
Multiemployer Plan 3.20(b)
Multiple Employer Plan 3.20(b)
* Application 1.01
Other Sellers Recitals
Owned Transaction Intellectual Property 3.16(b)
Parent Preamble
Plans 3.20(a)
Poly-Pore Patents 1.01(a)
Proxy Statement 5.05(a)
Purchase Price 2.04(a)
Purchaser Preamble
Purchaser Defined Contribution Plan 6.04
Purchaser Indemnified Party 9.02
Purchaser Objection 2.08(b)(ii)
Purchaser's Scheme 6.07(e)
Rebates 5.18
Restricted Period 5.10(a)
Returns 7.02(a)
SAP Assets 2.02(a)
SAP Business Recitals
SAP Subleases 5.17
SAP Thai Recitals
SEC 5.05(a)
Seller Recitals
Seller Defined Benefit Plan 6.04
Seller Defined Contribution Plan 6.04
Seller Indemnified Party 9.03(a)
Seller Pension Plans 6.04
Sellers Recitals
Shares Recitals
Signing Premium 2.04(a)
Statement of Working Capital 2.08(a)
Stock Option 6.10(a)
Stockholders' Meeting 5.04
Substituted Stock Option 6.10(b)(i)
Tangible Personal Property 3.18(a)
Terminating Purchaser Breach 10.01(c)
Terminating Sellers' Breach 10.01(b)
Thai Facility 8.02(r)
Thai Shares Recitals
Thai Transferred Employee 6.08(a)
Third Party Claims 9.04
Transfer Laws 6.07(b)
Transferred Assets 3.19(a)
Transferred Employee 6.01
Transition Services Agreement 5.13
U.K. Designated Employee 6.07(a)
U.K. Regulations 6.07(d)
Unpaid SAP Cheques 5.23
Unvested Stock Option 6.10(b)(i)
U.S. Transferred Employees 6.03(a)
WARN 3.20(h)
Working Capital 2.08(a)
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the Shares. Upon the terms and subject
to the conditions of this Agreement, at the Closing, Parent shall cause the sale
of the Shares to the Purchaser or one or more of its designated Affiliates, and
the Purchaser or one or more of such designated Affiliates shall purchase the
Shares.
SECTION 2.02. Assets to be Sold. (a) On the terms and subject to the
conditions of this Agreement, Parent shall, and shall cause the Other Sellers
to, on the Closing Date, sell, assign, transfer, convey and deliver to the
Purchaser or one or more of the Purchaser's designated Affiliates, and the
Purchaser or one or more of such designated Affiliates shall purchase from the
Sellers, on the Closing Date, all the assets, properties, goodwill and business
of every kind and description and wherever located, whether tangible or
intangible, real, personal or mixed, directly or indirectly owned by the Sellers
or to which they are directly or indirectly entitled and, in any case, belonging
to or used or intended to be used primarily in the SAP Business or primarily
related to the SAP Business, other than the Excluded Assets (the assets to be
purchased by the Purchaser and its designated Affiliates being referred to as
the "SAP Assets"), including, without limitation, the following:
(i) the SAP Business as a going concern;
(ii) all the SAP Real Property;
(iii) all furniture, fixtures, equipment, machinery and
other tangible personal property used or held for use by
the Sellers at the locations at which the SAP Business is
conducted, or otherwise owned or held by a Seller at the
Closing Date for use in the conduct of the SAP Business and
not otherwise included in clause (ii) above;
(iv) all Inventories;
(v) all Receivables;
(vi) all books of account, general, financial, tax and
personnel records, invoices, shipping records, supplier
lists, correspondence and other documents, records and files
and all computer software and programs and any rights thereto
owned by, primarily associated with, primarily used in, or
primarily relating to, the SAP Business at the Closing Date,
other than organization documents, minute and stock record
books and the corporate seal of each of the Sellers;
(vii) all the Sellers' right, title and interest in, to and
under the Business Intellectual Property;
(viii) all claims, causes of action, choses in action,
rights of recovery and rights of set-off of any kind
(including rights to insurance proceeds and rights under and
pursuant to all warranties, representations and guarantees
made by suppliers of products, materials or equipment, or
components thereof) primarily relating to the SAP Business;
(ix) all sales and promotional literature, customer lists
and other sales-related materials owned by or primarily used,
associated with or employed by the Sellers in the SAP Business
at the Closing Date;
(x) all rights of the Sellers under all contracts,
licenses, sublicenses, agreements, leases, commitments, and
sales and purchase orders, and under all commitments, bids and
offers (to the extent such offers are transferable) primarily
relating to the SAP Business;
(xi) all municipal, state and federal franchises, permits,
licenses, agreements, waivers and authorizations primarily
held or used by the Sellers in connection with, or required
for, the SAP Business, to the extent transferable;
(xii) all refunds of any Taxes relating to any period, or
any portion of any period, ending on or prior to the Closing
Date to the extent any such refunds are reflected on the
Statement of Working Capital; and
(xiii) all the Sellers' right, title and interest on the
Closing Date in, to and under all other assets, rights and
claims of every kind and nature primarily used or intended to
be primarily used in the operation of the SAP Business or
located on the SAP Real Property.
(b) The SAP Assets shall exclude the following assets
owned by the Sellers (the "Excluded Assets"):
(i) all cash, cash equivalents and bank accounts owned by
the Sellers at the Closing Date;
(ii) all rights of the Sellers under this Agreement;
(iii) except as otherwise provided in this Agreement, all
assets and properties of every kind and description and
wherever located, directly or indirectly, owned or held for
use by the Sellers and not primarily related to, or primarily
used in the conduct of, the SAP Business including, without
limitation, all of the assets and business of Parent and its
Subsidiaries used or intended to be used primarily in the
Poly-Pore Business;
(iv) the name "AMCOL" and all related trademarks, logos,
tradenames, telephone numbers and internet domain names;
(v) all of the Sellers' right, title and interest to an
under the Seller Intellectual Property;
(vi) the right of the Seller to receive refunds of any
Taxes relating to any period, or any portion of any period,
ending on or prior to the Closing Date, except to the extent
any such refunds are reflected on the Statement of Working
Capital; and
(vii) the right to receive any rebates and other refunds
arising in connection with amounts paid by Parent and its
Affiliates to the Purchaser and its Affiliates prior to the
Closing pursuant to any materials supply agreements between
the parties or their Affiliates.
SECTION 2.03. Assumption and Exclusion of Liabilities. (a) On the terms and
subject to the conditions of this Agreement, the Purchaser or one of its
designated Affiliates shall, on the Closing Date, assume and shall pay, perform
and discharge when due all debts, obligations, contracts, commitments,
agreements and liabilities of the Sellers, of every kind and description
primarily related to the conduct of the SAP Business and arising by reason of
actions or events occurring on or before the Closing Date, whether or not
existing on the Closing Date, and whether absolute or contingent, matured or
unmatured, or known or unknown, except for the Excluded Liabilities (as defined
below) (the "Assumed Liabilities").
(b) The Purchaser and its designated Affiliates, as applicable, shall not
assume or have any responsibility for any debts, obligations, contracts,
commitments, agreements or liabilities of the Sellers of any kind or description
not primarily related to the conduct of the SAP Business (the "Excluded
Liabilities"). The Sellers shall
retain, and shall be responsible for paying, performing and discharging when due
(provided that nothing herein shall preclude Parent from contesting or disputing
any such Excluded Liabilities) all of the Excluded Liabilities, including,
without limitation:
(i) all Taxes now or hereafter owed by the Sellers, or attributable to
the SAP Assets or the SAP Business, to the extent relating to any period,
or any portion of any period, ending on or prior to the Closing Date
(excluding, for purposes of clarification, any conveyance Taxes subject to
Section 7.06 hereof, which shall be shared by the parties in the manner set
forth therein);
(ii) all Liabilities (including Taxes) relating to or arising out of
the Excluded Assets or the Remco Businesses;
(iii) all Liabilities arising from or relating to the employment or
termination of employment of any Transferred Employee or U.K. Designated
Employee prior to the Closing Date (including, without limitation, any
Liabilities arising under any Plan or other compensation program,
arrangement or agreement of the Sellers, the Company or SAP Thai except to
the extent otherwise provided in this Agreement);
(iv) any Indebtedness for borrowed money other than the Continuing
Intercompany Indebtedness;
(v) all debts, Liabilities and obligations of the Sellers related to,
or arising out of, the conduct of the SAP Business prior to the Closing
Date to the extent that the existence of such Liability or obligation
constitutes a breach by the Sellers of any of their representations and
warranties in this Agreement;
(vi) any Liabilities of, or retained by, the Sellers under this
Agreement;
(vii) any and all Liabilities or Losses suffered or incurred by the
Sellers or the SAP Business, including by reason of or in connection with
any claim or cause of action of any third party, to the extent arising out
of any action, inaction, event, condition, liability or obligation of the
Remco Businesses occurring or existing before or after the Closing Date;
(viii) except for Offsite Environmental Liabilities, and the
obligations of the Purchaser as described in Exhibit 5.27 attached hereto
with respect to the specific condition described therein, any and all
Losses or Liabilities pursuant to any Environmental Law, or related to
gases occurring naturally, geologically or otherwise, in each case, arising
from or related to any action, event, circumstance or condition related to
the SAP Business and occurring or existing on or before the Closing Date,
including, without limitation, (A) any Release of Hazardous Materials into
the Environment at, to or from the SAP Real Property or any property
formerly owned or operated in connection with the SAP Business, in each
case on or prior to the Closing (and any additional migration of such
Release after the Closing Date) to the extent such Release is in violation
of any Environmental Law or is in a quantity, concentration or any other
form that is reportable or requires investigation, remediation or other
action pursuant to Environmental Law; (B) any and all Environmental Claims
arising at any time that relate to the SAP Business or the SAP Real
Property on or prior to the Closing; and (C) any and all non-compliances
with or violations of any applicable Environmental Law or Environmental
Permit relating to the Sellers, the SAP Real Property or the SAP Business
on or prior to the Closing (and any continuance of such non-compliance or
violation after the Closing Date, except, with respect to this Section
2.03(viii)(C), to the extent (i) the Purchaser was or should have been
aware of such non-compliance or violation on or before the Closing Date, or
(ii) the condition constituting such non-compliance or violation is altered
or changed by the Purchaser and its Affiliates after the Closing Date); and
(ix) any and all costs and expenses (including attorneys' fees)
incurred by the Sellers in preparing and negotiating this Agreement or the
transactions contemplated hereby, and any Liabilities with respect to
Actions relating to, resulting from, or arising out of, this Agreement or
the transactions contemplated hereby.
SECTION 2.04. Purchase Price; Allocation of Purchase Price. (a) Subject to
the adjustments set forth in Section 2.08, the purchase price for the Shares and
the SAP Assets shall be U.S.$628,000,000, less the Continuing Intercompany
Indebtedness (as defined in Section 2.04(c) below) (the "Purchase Price"). In
addition, the Purchaser will cause the payment to Chemdal U.K. of an amount
equal to U.S.$28,500,000 (the "Signing Premium") as consideration for entering
into the Acrylic Acid Supply Agreement set forth in Section 5.15 of this
Agreement (it being understood that the Signing Premium shall be non-refundable
for any reason, including, without limitation, on account of an early
termination of the Acrylic Acid Supply Agreement for any reason, including,
without limitation, for any actual or alleged breach or nonperformance
thereunder by Chemdal U.K.).
(b) The sum of the Purchase Price and the Assumed Liabilities shall be
allocated among the Shares and the SAP Assets as of the Closing Date in
accordance with Exhibit 2.04(b) attached hereto. Any subsequent adjustments to
the sum of the Purchase Price and Assumed Liabilities shall be reflected in the
allocation hereunder in a manner consistent with Treasury Regulation
1.1060-1T(f). For all Tax purposes, each of the Purchaser, Parent and the Other
Sellers agrees to report the transactions contemplated in this Agreement in a
manner consistent with the terms of this Agreement, including the allocation
under Exhibit 2.04(b), and to refrain from taking any position inconsistent
therewith in any Tax return, in any refund claim, in any litigation, or
otherwise.
(c) No less than 10 days prior to the Closing Date, Parent shall deliver to
the Purchaser a certificate signed by the chief financial officer of Parent
indicating the amount of any outstanding intercompany Indebtedness (the
"Continuing Intercompany Indebtedness") of the SAP Business that will exist as
of the Closing Date (it being understood that there will be no Continuing
Intercompany Indebtedness existing as of the Closing Date that by its terms
cannot be prepaid in full or in part at any time without penalty).
SECTION 2.05. Closing. Upon the terms and subject to the conditions of this
Agreement, the sale and purchase of the Shares and the SAP Assets contemplated
by this Agreement shall take place at a closing (the "Closing") to be held at
the offices of Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at
10:00 A.M. New York time, on the tenth Business Day following the satisfaction
or waiver of all other conditions to the obligations of the parties set forth in
Article VIII, or at such other place or at such other time or on such other date
as Parent and the Purchaser may mutually agree upon in writing (the day on which
the Closing takes place being the "Closing Date").
SECTION 2.06. Closing Deliveries by Parent. At the Closing, Parent shall
deliver or cause to be delivered to the Purchaser:
(i) stock certificates evidencing the Shares duly endorsed in blank,
or accompanied by stock powers duly executed in blank, in form reasonably
satisfactory to the Purchaser and with all required stock transfer tax
stamps affixed;
(ii) the Bills of Sale (or any such other documents as may be
reasonably requested by the Purchaser to transfer the SAP Assets to the
Purchaser or one or more of its designated Affiliates or to evidence such
transfer on the public records), customary instruments of transfer for the
SAP Real Property, and customary instruments of transfer for the Business
Intellectual Property, the Company Intellectual Property and the Thai
Intellectual Property, all such documents to be in form and substance
reasonably satisfactory to the parties;
(iii) a receipt for the Purchase Price and the Signing Premium; and
(iv) the certificates and other documents required to be delivered
pursuant to Section 8.02.
SECTION 2.07. Closing Deliveries by the Purchaser. At the Closing, the
Purchaser shall deliver to Parent:
(i) the Purchase Price by wire transfer in immediately available funds
to the Purchase Price Bank Account;
(ii) the Signing Premium by wire transfer in immediately available
funds to the Purchase Price Bank Account;
(iii) the Assumption Agreements and such other documents as may be
reasonably requested by Parent to effect the assumption by the Purchaser or
one or more of its designated Affiliates of the Assumed Liabilities and to
evidence such assumption on the public records, all such documents to be in
form and substance reasonably satisfactory to the parties; and
(iv) the certificates and other documents required to be delivered
pursuant to Section 8.01.
SECTION 2.08. Statement of Working Capital. (a) As promptly as practicable,
but in any event within 30 Business Days following the Closing Date, Parent
shall deliver to the Purchaser (i) a statement (the "Statement of Working
Capital") indicating the amount of current trade accounts receivable, net of
allowance for doubtful accounts, SAP Thai Value Added Tax (VAT) receivables, if
any, and Inventories, less accounts payable and accrued current liabilities (it
being understood that (i) only those accrued current liabilities actually being
transferred to the Purchaser pursuant to this Agreement shall be included in
this statement and that this statement shall exclude any Receivables or rebates
due to the SAP Business from the Purchaser and its Affiliates pursuant to any
materials supply agreements, and (ii) to the extent there are any other current
Receivables existing as of the Closing Date that were not included in the June
30, 1999 statement of working capital (attached hereto as Exhibit 2.08), the
Purchaser shall promptly advise Parent whether it wishes to acquire any of such
current Receivables, and should the Purchaser decide to acquire any of such
current Receivables, then any of such current Receivables actually acquired by
the Purchaser will be included in the Statement of Working Capital) (the
"Working Capital") of the SAP Business as of the Closing Date, which Statement
of Working Capital shall be prepared substantially in the same manner as the
June 30, 1999 statement of working capital attached hereto as Exhibit 2.08 and
(ii) an unqualified report thereon of Parent's Accountants stating that the
Statement of Working Capital fairly presents in all material respects the
Working Capital of the SAP Business at the Closing Date.
(b) (i) Subject to clause (ii) of this Section 2.08, the Statement of
Working Capital delivered by Parent to the Purchaser shall be deemed to be and
shall be final, binding and conclusive on the parties hereto.
(ii) The Purchaser may dispute any amounts reflected on the Statement of
Working Capital; provided, however, that the Purchaser shall have notified
Parent and the Sellers' Accountants in writing of each disputed item, specifying
the estimated amount thereof in dispute and setting forth, in reasonable detail,
the basis for such dispute (the "Purchaser Objection") within 30 Business Days
of receipt of the Statement of Working Capital from Parent. Parent shall then
have 30 Business Days from the receipt of the Purchaser Objection to review and
respond to the Purchaser Objection. If the Purchaser and Parent are unable to
resolve all of their disagreements with respect to the Statement of Working
Capital within 10 Business Days following Parent's review of the Purchaser
Objection, they shall submit the items remaining in dispute for resolution to an
independent accounting firm of international reputation mutually acceptable to
the Purchaser and Parent (such accounting firm being referred to herein as the
"Independent Accounting Firm"), which shall, within 30 Business Days after such
submission, determine and report to the Purchaser and Parent upon such dispute,
and such written report shall be final, binding and conclusive on the Purchaser
and Parent. The fees and disbursements of the Independent Accounting Firm shall
be paid by the Purchaser and Parent in inverse proportion to those matters
submitted to the Independent Accounting Firm which are resolved in favor of the
Purchaser and Parent, as the case may be, as so allocated between the Purchaser
and Parent by the Independent Accounting Firm in accordance with this Section
2.08 at the time of the Independent Accounting Firm's determination. The
"Adjusted Statement of Working Capital" shall be (i) the Statement of Working
Capital in the event that (x) no Purchaser Objection is delivered to Parent
during the 30 Business Day period specified above or (y) the Purchaser and
Parent so agree during such 30 Business Day period; (ii) the Statement of
Working Capital as adjusted in accordance with the Purchaser Objection, in the
event that the Purchaser Objection is timely delivered to Parent and (x) Parent
does not respond to the Purchaser Objection within the 30 Business Day period
following receipt by Parent of the Purchaser Objection or (y) the Purchaser and
Parent so agree during such 30 Business Day period; or (iii) the Statement of
Working Capital as adjusted by either (x) the agreement of the Purchaser and
Parent or (y) the Independent Accounting Firm.
(c) (i) Within 10 Business Days following the determination of the Adjusted
Statement of Working Capital pursuant to this Section 2.08, the adjustment
payments, if any, payable pursuant to this Section 2.08 shall be paid by wire
transfer of immediately available funds to a bank account designated by the
Purchaser or Parent, as the case may be, at least five Business Days prior to
the expiration of such 10 Business Day period. For the purposes of determining
which of the Purchaser's designated Affiliates will make or receive any required
adjustment payments hereunder, the amount of U.S.$34,175,000 referred to in (ii)
and (iii) below is assumed attributed as follows: U.S.$ * to the Company, U.S.$
* to SAP U.K. and U.S.$ * to SAP Thai.
(ii) Parent shall make an adjustment payment to the Purchaser or one of its
designated Affiliates in respect of Working Capital in an amount equal to the
amount, if any, by which the (x) Adjusted Statement of Working Capital is less
than (y) U.S.$34,175,000.
(iii) The Purchaser shall make, or cause to be made, an adjustment payment
to Parent in respect of Working Capital in an amount equal to the amount, if
any, by which the (x) Adjusted Statement of Working Capital is greater than (y)
U.S.$34,175,000.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
As an inducement to the Purchaser to enter into this Agreement, each of the
Sellers hereby represents and warrants to the Purchaser as follows (except as
set forth in the Disclosure Schedule):
SECTION 3.01. Organization, Authority and Qualification of the Sellers.
Each of the Sellers is a corporation duly organized, validly existing and in
good standing under the Laws of its jurisdiction of incorporation and, in the
case of Parent, has all necessary power and authority to enter into this
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. Each of the Sellers is duly licensed or
qualified to do business and is in good standing in each jurisdiction in which
the properties owned or leased by it or the operation of its business makes such
licensing or qualification necessary, except to the extent that the failure to
be so licensed or qualified (i) would not materially adversely affect the
ability of such Seller to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement, or (ii) have a Material Adverse
Effect. Except for obtaining the necessary approval of stockholders, the
execution and delivery of this Agreement by Parent, the performance by Parent of
its obligations hereunder and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all requisite action on the
part of Parent. This Agreement has been duly executed and delivered by Parent,
and (assuming due authorization, execution and delivery by the Purchaser) this
Agreement constitutes a legal, valid and binding obligation of Parent
enforceable against Parent in accordance with its terms, subject to bankruptcy,
insolvency, moratorium, reorganization or similar Laws affecting the rights of
creditors generally and the availability of equitable remedies.
SECTION 3.02. Organization, Authority and Qualification of the Company and
SAP Thai. Each of the Company and SAP Thai is a corporation duly organized,
validly existing and in good standing under the Laws of its jurisdiction of
incorporation and has all necessary power and authority to own, operate or lease
the properties and assets now owned, operated or leased by it and to carry on
the SAP Business as it has been and is currently conducted, except for the
failure to be so organized, existing or in good standing or to have such power
or authority as would not have a Material Adverse Effect. Each of the Company
and SAP Thai is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or leased by it or
the operation of its business makes such licensing or qualification necessary or
desirable, except for failures to be so qualified or in good standing which
would not, in the aggregate, have a Material Adverse Effect. All corporate
actions taken by the Company during the past five years and by SAP Thai since
the date of its incorporation have been duly authorized, and neither the Company
nor SAP Thai has taken any action that in any respect conflicts with,
constitutes a default under or results in a violation of any provision of its
Certificate of Incorporation or By-laws (or similar organizational documents),
except to the extent that the absence of such authority or the existence of such
conflict or default would not have a Material Adverse Effect. True and correct
copies of the Certificate of Incorporation and By-laws (or similar
organizational documents) of the Company and SAP Thai, each as in effect on the
date hereof, have been delivered by Parent to the Purchaser. As of the Closing
Date, neither the Company nor SAP Thai will have any Subsidiaries.
SECTION 3.03. Capital Stock of the Company and SAP Thai; Ownership of the
Shares. (a) The authorized capital stock of the Company consists of 150,000
shares of Company Common Stock and the authorized capital stock of SAP Thai
consists of 2,000,000 ordinary shares. As of the date hereof, 2,000 shares of
Company Common Stock and 2,000,000 ordinary shares of SAP Thai are issued and
outstanding, all of which are validly issued, fully paid and nonassessable. None
of the issued and outstanding Shares were issued in violation of any preemptive
rights. There are no options, warrants, convertible securities or other rights,
agreements, arrangements or commitments of any character relating to the capital
stock of the Company or SAP Thai or obligating Parent, Chemdal International
Sub, Chemdal Netherlands Sub, the Company or SAP Thai to issue or sell any
shares of capital stock of, or any other interest in, the Company or SAP Thai.
There are no outstanding contractual obligations of the Company or SAP Thai to
repurchase, redeem or otherwise acquire any shares of Company Common Stock or
shares of SAP Thai or to provide funds to, or make any investment (in the form
of a loan, capital contribution or otherwise) in, any other Person. The Company
Shares constitute all the issued and outstanding capital stock of the Company
and are owned of record and beneficially solely by Chemdal International Sub
free and clear of all Encumbrances, and the Thai Shares constitute all the
issued and outstanding capital stock of SAP Thai and are owned of record and
beneficially solely by the Persons set forth on Exhibit 1.01(a) attached hereto
free and clear of all Encumbrances. Upon consummation of the transactions
contemplated by this Agreement and registration of the Shares in the name of the
Purchaser in the stock records of the Company and SAP Thai, as applicable, the
Purchaser, assuming it shall have purchased the Shares for value in good faith
and without notice of any adverse claim, will own all the issued and outstanding
capital stock of the Company and SAP Thai free and clear of all Encumbrances.
Upon consummation of the transactions contemplated by this Agreement, the Shares
will be fully paid and nonassessable. There are no voting trusts, stockholder
agreements, proxies or other agreements or understandings in effect with respect
to the voting or transfer of any of the Shares.
(b) The stock register of each of the Company and SAP Thai accurately
records: (i) the name and address of each Person owning shares of capital stock
of the Company and SAP Thai, as applicable and (ii) the certificate number of
each certificate evidencing shares of capital stock issued by the Company and
SAP Thai, as applicable, the number of shares evidenced by each such
certificate, the date of issuance thereof and, in the case of cancellation, the
date of cancellation.
SECTION 3.04. Corporate Books and Records. Except as would not have a
Material Adverse Effect, the minute books of the Company and SAP Thai contain
accurate records of all meetings and accurately reflect all other actions taken
by the stockholders, the board of directors and all committees of the board of
directors of the Company and SAP Thai, as applicable. Complete and accurate
copies of all such minute books and of the stock register of the Company and SAP
Thai have been provided by Parent to the Purchaser.
SECTION 3.05. No Conflict. Assuming that all consents, approvals,
authorizations and other actions described in Section 3.06 have been obtained
and all filings and notifications listed in Section 3.06 of the Disclosure
Schedule have been made, except for any facts or circumstances relating solely
to the Purchaser, the execution, delivery and performance of this Agreement by
Parent do not and will not (a) violate, conflict with or result in the breach of
any provision of the charter or by-laws (or similar organizational documents) of
Parent, the Company, SAP Thai or any Other Seller, (b) cause an event which
could reasonably be expected to have a Material Adverse Effect as a result of
any conflict with or violation of any Law or Governmental Order applicable to
Parent, the Company, SAP Thai or any Other Seller or any of their respective
assets, properties or businesses, including, without limitation, the SAP
Business, or (c) except as set forth in Section 3.05(c) of the Disclosure
Schedule or as would not have a Material Adverse Effect, conflict with, result
in any breach of, constitute a default (or event which with the giving of notice
or lapse of time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment, acceleration,
suspension, revocation or cancellation of, or result in the creation of any
Encumbrance on any of the Company Shares or the Thai Shares or on any of the
assets or properties of the Company, SAP Thai or of the Sellers pursuant to, any
note, bond, mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise or other instrument or arrangement to which prior to
the Closing the Company, SAP Thai or the Sellers is a party or by which any of
the Shares or any of such assets or properties is bound or affected.
SECTION 3.06. Governmental Consents and Approvals. The execution, delivery
and performance of this Agreement by Parent do not and will not require any
consent, approval, authorization or other order of, action by, filing with or
notification to any Governmental Authority, except (a) as described in Section
3.06 of the Disclosure
Schedule and (b) the notification requirements of the HSR Act and applicable
filings under non-U.S. merger control and competition Laws; or (c) where the
failure to obtain such consent, authorization or to make such filing would not
have a Material Adverse Effect.
SECTION 3.07. Financial Statements. True and complete copies of (i) the
unaudited balance sheets of the Company, Chemdal International Sub, Chemdal
Netherlands Sub, Chemdal U.K. and SAP Thai for the nine-month period ending
September 30, 1999 and the related statements of income, and, with respect to
the Company, the related statement of operations, (ii) the unaudited balance
sheets of the Company, Chemdal International Sub, Chemdal Netherlands Sub and
Chemdal U.K. for the fiscal year ended as of December 31, 1998 and the related
statements of income, and, with respect to the Company and Chemdal International
Sub, the related statements of cash flows, and (iii) the unaudited balance sheet
of the Company, Chemdal International Sub and Chemdal U.K. for the fiscal years
ended as of December 31, 1997 and December 31, 1996 and the related statements
of income, and, with respect to the Company and Chemdal International Sub, the
related statements of cash flows ((i), (ii) and (iii) above being collectively
referred to herein as the "Financial Statements") have been delivered by Parent
to the Purchaser and are set forth herein at Section 3.07 of the Disclosure
Schedule. The Financial Statements (i) were prepared in accordance with the
books of account and other financial records of the Company, SAP Thai, Chemdal
International Sub, Chemdal Netherlands Sub and Chemdal U.K., and in all material
respects and except as otherwise indicated therein or described in Section 3.07
of the Disclosure Schedule, present fairly the financial condition and results
of operations of such entities as of the dates thereof or for the periods
covered thereby, (ii) have been prepared on a basis consistent with the past
practices of the Company, SAP Thai, Chemdal International Sub, Chemdal
Netherlands Sub and Chemdal U.K. and (iii) include all adjustments (consisting
only of normal recurring accruals) that are necessary for a fair presentation of
the financial condition of the Company, SAP Thai, Chemdal International Sub,
Chemdal Netherlands Sub and Chemdal U.K. and the results of the operations of
such entities as of the dates thereof or for the periods covered thereby
(subject to, for the purposes only of the financial statements for the period
ending September 30, 1999, any normal year-end adjustments which were not and
are not expected, individually or in the aggregate, to have a Material Adverse
Effect). If adjusted to account for the disclosures described in Paragraph 1 of
Section 3.07 of the Disclosure Schedule, the results of the operations of the
SAP Business for the periods covered by the Financial Statements shall be no
worse than the results of the operations reflected on the Financial Statements
for such periods.
SECTION 3.08. No Undisclosed Liabilities. Except as disclosed elsewhere in
the Disclosure Schedule, and except where the existence of such Liability would
not have a Material Adverse Effect, there are no Liabilities of the Company, SAP
Thai or the Sellers relating to the SAP Business, other than Liabilities
reflected on the Financial Statements or incurred since September 30, 1999 in
the ordinary course of the SAP Business consistent with the past practice of
Parent, the Company, SAP Thai and the Other Sellers.
SECTION 3.09. Receivables. To Parent's Knowledge, all Receivables existing
on the Closing Date will have arisen from the sale of Inventory or services to
Persons not affiliated with Parent, the Company, SAP Thai or the Other Sellers
and in the ordinary course of the business consistent with past practice and, to
Parent's Knowledge, in all material respects constitute or will constitute, as
the case may be, only valid, undisputed claims of the SAP Business not subject
to valid claims of set-off or other defenses or counterclaims other than normal
cash discounts and rebates accrued in the ordinary course of the SAP Business
consistent with past practice. Notwithstanding the foregoing, nothing in this
Agreement shall constitute a guaranty or warranty by Parent or its Affiliates
that such Receivables will ultimately be collected.
SECTION 3.10. Inventories. The Company, SAP Thai or the Sellers, as the
case may be, have good and marketable title to the Inventories free and clear of
all Encumbrances. To Parent's Knowledge, the Inventories do not consist of, in
any material amount, items that are obsolete or damaged. Except as described in
Section 3.10 of the Disclosure Schedule, the Inventories do not consist of any
items held on consignment. Neither the Company, SAP Thai nor any Seller is under
any obligation or liability with respect to accepting returns of items of
Inventory or merchandise in the possession of their customers other than in the
ordinary course of business consistent with past practice. To Parent's
Knowledge, neither the Company, SAP Thai nor any Seller has acquired or
committed to acquire or manufacture Inventory for sale which is not of a quality
and quantity usable in the ordinary course of the SAP Business within a
reasonable period of time and consistent with past practice, nor has the
Company, SAP Thai or a Seller changed the price of any Inventory except for (i)
price reductions to reflect any reduction in the cost thereof to
the Company, SAP Thai or such Seller, (ii) reductions and increases responsive
to normal competitive conditions and consistent with past sales practices, (iii)
increases to reflect any increase in the cost thereof to the Company, SAP Thai
or such Seller and (iv) increases and reductions made with the written consent
of the Purchaser.
SECTION 3.11. Conduct in the Ordinary Course; Absence of Certain Changes,
Events and Conditions. Since September 30, 1999, except as disclosed in Section
3.11 of the Disclosure Schedule or as would not have a Material Adverse Effect,
the SAP Business has been conducted in the ordinary course and consistent with
past practice. As amplification and not limitation of the foregoing, except as
disclosed in Section 3.11 of the Disclosure Schedule and except as relates to
the business and assets of the Sellers other than the SAP Business and the SAP
Assets, since September 30, 1999, the Company, SAP Thai and the Sellers have
not:
(i) made any loan to, guaranteed any Indebtedness of or otherwise incurred
any Indebtedness on behalf of any Person;
(ii) redeemed any of the capital stock or declared, made or paid any
dividends or distributions (whether in cash, securities or other property) to
the holders of capital stock of the Company or shares of SAP Thai;
(iii) to Parent's Knowledge, made any material changes in the customary
methods of operations of the Company, SAP Thai or the Sellers, including,
without limitation, practices and policies relating to manufacturing,
purchasing, Inventories, marketing, selling and pricing;
(iv) merged with, entered into a consolidation with or acquired an interest
in any Person or acquired a substantial portion of the assets or business of any
Person or any division or line of business thereof, or otherwise acquired any
material assets other than in the ordinary course of business consistent with
past practice;
(v) except as directly related to the construction of the SAP Thai facility
in Thailand, issued any sales orders or otherwise agreed to make any purchases
involving exchanges in value in excess of $500,000 individually;
(vi) sold, transferred, leased, subleased, licensed or otherwise disposed
of any properties or assets, real, personal or mixed (including, without
limitation, leasehold interests and intangible assets), other than in the
ordinary course of business consistent with past practice;
(vii) issued or sold any capital stock, notes, bonds or other securities,
or any option, warrant or other right to acquire the same, of, or any other
interest in, the Company, Chemdal U.K. or SAP Thai;
(viii) entered into any agreement, arrangement or transaction with any of
the directors, officers, employees or shareholders (or with any relative,
beneficiary, spouse or Affiliate thereof) of the SAP Business;
(ix) (A) granted any increase, or announced any increase, in the wages,
salaries, compensation, bonuses, incentives, pension or other benefits payable
by the Company, SAP Thai or a Seller to any of the SAP Employees, including,
without limitation, any increase or change pursuant to any Plan or (B)
established or increased or promised to increase any benefits under any Plan, in
either case except as required by Law, or any collective bargaining agreement,
or involving ordinary increases consistent with the past practices of the
Company, SAP Thai or a Seller, or a contractual obligation existing on the date
hereof;
(x) written down or written up (or failed to write down or write up in
accordance with U.S. GAAP consistent with past practice) the value of any
Inventories or Receivables or revalued any assets of the Company, SAP Thai or
any of the SAP Assets, other than in the ordinary course of business consistent
with past practice and in accordance with U.S. GAAP;
(xi) amended, terminated, canceled or compromised any material claims of
the Company, SAP Thai or the Sellers or waived any other rights of substantial
value to the SAP Business;
(xii) made any change in any method of accounting or accounting practice or
policy used by the Company, SAP Thai or the Sellers relating to the SAP
Business, other than such changes as are required by U.S. GAAP (or other
applicable non-U.S. accounting principals or practices);
(xiii) made or revoked any material Tax election, or any change in any
method of Tax accounting;
(xiv) compromised or settled any material Tax Liability;
(xv) failed in any material respect to maintain the SAP Assets in
accordance with good business practice and in good operating condition and
repair;
(xvi) incurred any Indebtedness;
(xvii) amended, modified or consented to the termination of any Material
Contract or the Company's, SAP Thai's or a Sellers' rights thereunder;
(xviii) amended or restated the Certificate of Incorporation or the By-laws
(or similar organizational documents) of the Company, SAP Thai or the Sellers;
(xix) suffered any Material Adverse Effect; or
(xx) agreed, whether in writing or otherwise, to take any of the actions
specified in this Section 3.11 or granted any options to purchase, rights of
first refusal, rights of first offer or any other similar rights or commitments
with respect to any of the actions specified in this Section 3.11, except as
expressly contemplated by this Agreement.
SECTION 3.12. Litigation. Except as set forth in Section 3.12 of the
Disclosure Schedule (which, with respect to each Action and investigation
disclosed therein, sets forth: the parties, nature of the proceeding, date
commenced, relief sought and, if applicable, paid or granted), there are no
Actions or, to Parent's Knowledge, investigations by or against the Company, SAP
Thai or an Other Seller (or by or against Parent or any Affiliate thereof and
relating to the SAP Business, the Company, SAP Thai or an Other Seller), or
affecting the SAP Business or any of the SAP Assets, pending (or, to Parent's
Knowledge, threatened to be brought) that has or has had a Material Adverse
Effect or could affect the legality, validity or enforceability of this
Agreement or the consummation of the transactions contemplated hereby. Except as
set forth in Section 3.12 of the Disclosure Schedule, none of the Company, SAP
Thai the Other Sellers nor any of the SAP Assets nor Parent is subject to any
Governmental Order (nor, to Parent's Knowledge, are there any such Governmental
Orders threatened to be imposed by any Governmental Authority) which has, has
had or is reasonably likely to have, a Material Adverse Effect.
SECTION 3.13. Compliance with Laws. Except as set forth in Section 3.13 of the
Disclosure Schedule, the SAP Business has been and continues to be conducted in
accordance with all Laws and Governmental Orders applicable to the SAP Business,
and neither the Company, SAP Thai nor the Sellers are in violation of any such
Law or Governmental Order, except where the failure to be in compliance with
such Laws and orders would not have a Material Adverse Effect.
SECTION 3.14. Environmental Matters. (a) Except as disclosed in Section
3.14(a) of the Disclosure Schedule or as would not have, or as would not
reasonably be expected to have, a Material Adverse Effect:
(i) The SAP Business is in compliance with, and has been in compliance
with, all applicable Environmental Laws and all Environmental Permits. All
past non-compliance with Environmental Laws or Environmental Permits has
been resolved without any pending, on-going or future obligation, cost or
liability, and there is no requirement proposed for adoption or
implementation under any Environmental Law or Environmental Permit.
(ii) There are no underground or aboveground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in which
Hazardous Materials are being or have been treated, stored or disposed on
any of the SAP Real Property or, to Parent's Knowledge, on any property
formerly owned, leased or occupied by, or on behalf of, the Company, SAP
Thai, the Sellers or the SAP Business.
(iii) Hazardous Materials have not been Released on any of the SAP
Real Property or, during their period of ownership, lease or occupancy, on
any property formerly owned, leased or occupied by, or on behalf of, the
Company, SAP Thai, the Sellers or the SAP Business.
(iv) Except as contemplated in Exhibit 5.27 attached hereto, neither
the Company, SAP Thai nor the Sellers are conducting, and none of them have
undertaken or completed, any Remedial Action relating to any Release or
threatened Release of Hazardous Materials at the SAP Real Property or, on
behalf of the SAP Business, at any other site, location or operation,
either voluntarily or pursuant to the order of any Governmental Authority
or the requirements of any Environmental Law or Environmental Permit.
(v) There is no asbestos or asbestos-containing material on any of the
SAP Real Property, the existence of which is a violation of any
Environmental Law.
(vi) There are no Environmental Claims pending or threatened against
the Company, SAP Thai, the Sellers (with respect to the SAP Business), the
SAP Business or the SAP Real Property, and, to Parent's Knowledge, there
are no circumstances that are reasonably expected to form the basis of any
such Environmental Claim, including, without limitation, with respect to
any off-site disposal location currently or formerly used by, or on behalf
of, the Company, SAP Thai, a Seller or the SAP Business or any of their
predecessors or with respect to any previously owned or operated
facilities.
(vii) The Company, SAP Thai and the Sellers do not require any new or
additional Environmental Permits and are not required to modify any
existing Environmental Permits and will not require any increase in capital
expenditures, in order to produce at present production levels with respect
to the SAP Business in compliance with applicable Environmental Laws.
(viii) None of the SAP Real Property or, to Parent's Knowledge, any
property formerly owned, leased or occupied by or on behalf of the Sellers,
the Company, SAP Thai or the SAP Business is listed or proposed for
listing, or adjoins any other property that is listed or proposed for
listing, on the National Priorities List or the Comprehensive Environmental
Response, Compensation and Liability Information System under the federal
Comprehensive Environmental Response, Compensation, and Liability Act or
any analogous federal, state or local list.
(b) The Company, SAP Thai and the Sellers have provided the Purchaser with
copies or summaries of (i) all written environmental assessment or audit reports
and other similar studies or analyses relating to the SAP Business or the SAP
Real Property or the operations of the Company, SAP Thai or the Sellers, as
applicable, and (ii) to Parent's Knowledge, all insurance policies issued since
December 31, 1995 that may provide coverage for the SAP Business related to
environmental matters, provided that no representations or warranties are made
by Parent that such policies or the rights and benefits thereunder are
transferable to the Purchaser.
(c) Except as disclosed in Section 3.14(c) of the Disclosure Schedule,
neither the execution of this Agreement nor the consummation of the transactions
contemplated in this Agreement will require any Remedial Action or notice to or
consent of Governmental Authorities or any third party pursuant to any
applicable Environmental Law or Environmental Permit.
(d) The Purchaser acknowledges that (i) the representations and warranties
contained in this Section 3.14 are the only representations and warranties being
made with respect to compliance with or liability under Environmental Laws
related to this Agreement or its subject matter, and (ii) no other
representation contained in this Agreement shall apply to any such matters and
no other representation or warranty, express or implied, is being made with
respect thereto.
SECTION 3.15. Material Contracts. (a) Section 3.15(a) of the Disclosure
Schedule lists each of the following contracts and agreements (including,
without limitation, oral agreements) of the Company, SAP Thai and the Sellers
relating to the SAP Business (such contracts and agreements, together with all
contracts, agreements, leases and subleases concerning the management or
operation of any SAP Real Property to which the Company, SAP Thai or any of the
Sellers is a party and all agreements relating to Intellectual Property being,
the "Material Contracts"):
(i) each contract and agreement for the purchase of Inventory, spare
parts, other materials or personal property with any supplier or for the
furnishing of services to the Company, SAP Thai or the Sellers or otherwise
related to the SAP Business under the terms of which the Company, SAP Thai
or any of the Sellers: (A) is likely to pay or otherwise give consideration
of more than $500,000 in the aggregate during the calendar year ended
December 31, 1999, or (B) cannot be canceled by the Company, SAP Thai or a
Seller without penalty or further payment and without more than 30 days'
notice;
(ii) each contract and agreement for the sale of Inventory or other
personal property or for the furnishing of services by the Company, SAP
Thai or the SAP Business which: (A) is likely to involve consideration of
more than $2,500,000 in the aggregate during the calendar year ended
December 31, 1999, or (B) cannot be canceled by the Company, SAP Thai or a
Seller without penalty or further payment and without more than 30 days'
notice;
(iii) all material broker, distributor, dealer, manufacturer's
representative, franchise, agency, sales promotion, market research,
marketing consulting and advertising contracts and agreements to which the
Company, SAP Thai or any of the Sellers is a party;
(iv) all employment contracts and contracts with independent
contractors or consultants (or similar arrangements) to which the Company,
SAP Thai or any of the Sellers is a party and which are not cancellable
without penalty or further payment and without more than 30 days' notice;
(v) all contracts and agreements of the Company and SAP Thai relating
to Indebtedness;
(vi) all material contracts and agreements with any Governmental
Authority to which the Company, SAP Thai or any of the Sellers is a party;
(vii) all contracts and agreements that limit or purport to limit the
ability of the Company, SAP Thai or the Sellers (as it affects the SAP
Business) to compete in any line of business or with any Person or in any
geographic area or during any period of time;
(viii) all contracts and agreements between or among the Company, SAP
Thai or a Seller (as it affects the SAP Business), on the one hand, and
Parent or any Affiliate of Parent (other than the Company, SAP Thai and the
Other Sellers) on the other hand, other than tax sharing and other
intercompany agreements entered into in the ordinary course of business;
(ix) all contracts and agreements providing for benefits under any
Plan or any policy, including applicable Chemdal U.K. and SAP Thai employee
life insurance contracts and other similar documents; and
(x) all other contracts and agreements, whether or not made in the
ordinary course of business, the absence of which would be expected to have
a Material Adverse Effect.
(b) Except as disclosed in Section 3.15(b) of the Disclosure Schedule, or
as would not have a Material Adverse Effect, each Material Contract: (i) is
valid and binding on the respective parties thereto and is in full force and
effect and (ii) solely by reason of the consummation of the transactions
contemplated by this Agreement, except to the extent that any consents set forth
in Section 3.06 of the Disclosure Schedule are not obtained, shall not terminate
or impose a penalty or other material adverse consequence on the SAP Business.
To Parent's Knowledge, neither the Company, SAP Thai nor any of the Sellers is
in breach of, or default under, any Material Contract.
(c) Except as disclosed in Section 3.15(c) of the Disclosure Schedule, to
Parent's Knowledge, no other party to any Material Contract is in material
breach thereof or material default thereunder.
(d) Except as disclosed in Section 3.15(d) of the Disclosure Schedule,
there is no contract, agreement or other arrangement granting any Person any
preferential right to purchase, other than in the ordinary course of business
consistent with past practice, any of the properties or assets of the Company,
SAP Thai or the Sellers relating to the SAP Business.
SECTION 3.16. Intellectual Property. (a) Section 3.16(a)(i) of the
Disclosure Schedule sets forth a true and complete list and a brief description
of each patent and patent application, and each registration or application for
registration, of Business Intellectual Property, Company Intellectual Property,
and SAP Thai Intellectual Property and Section 3.16(a)(ii) of the Disclosure
Schedule sets forth a true and complete list and a brief description of all
Transaction Intellectual Property that is licensed by the Company, SAP Thai or a
Seller (the "Licensed Transaction Intellectual Property"). Except as otherwise
described in Section 3.16(a)(i) of the Disclosure Schedule, in each case where a
registration or patent or application for registration or patent listed in
Section 3.16(a)(i) of the Disclosure Schedule is held by assignment, the
assignment has been duly recorded with each Governmental Authority from which
the original registration issued or before which the application for
registration is pending. Except as disclosed in Section 3.16(a)(ii) of the
Disclosure Schedule, to Parent's Knowledge, the operation of the SAP Business
and the rights of the Company, SAP Thai or a Seller, as the case may be, in or
to the Transaction Intellectual Property do not conflict with or infringe the
rights of any other Person, and none of Parent, the Company, SAP Thai nor an
Other Seller has received any written claim or written notice from any Person to
such effect. Except as disclosed in Section 3.16(a)(iii) of the Disclosure
Schedule, to Parent's Knowledge, the conduct of the SAP Business does not
conflict with or infringe on the rights of any other Person, and none of Parent,
the Company, SAP Thai nor an Other Seller has received any written claim or
written notice from any Person to such effect. Notwithstanding the foregoing,
Parent makes no representation or warranties as to the adequacy of Parent's
programs to monitor, use and protect patents, trademarks, trade secrets and
know-how.
(b) Except as disclosed in Section 3.16(b) of the Disclosure Schedule and
except as would not have a Material Adverse Effect: (i) all the Transaction
Intellectual Property that is owned by the Company, SAP Thai or a Seller (the
"Owned Transaction Intellectual Property") is owned free and clear of any
Encumbrance and (ii) to Parent's Knowledge, no Actions have been made or
asserted or are pending (nor, to Parent's Knowledge, (x) has there been any
written notification sufficient to result in reasonable apprehension that any
such action might ensue, nor (y) has any such Action been threatened) against
the Company, SAP Thai or a Seller either (A) based upon or challenging or
seeking to deny or restrict the use by the Company, SAP Thai or a Seller of any
of the Transaction Intellectual Property or (B) alleging that the use of the
Transaction Intellectual Property in connection with the SAP Business, or that
any services provided, or products manufactured or sold by the Company, SAP Thai
or a Seller (with respect to the conduct of the SAP Business infringes any
rights of any Person). Except as disclosed in Section 3.16(b) of the Disclosure
Schedule, to Parent's Knowledge, no Person is engaging in any activity or is
using any Intellectual Property that in any manner infringes upon the Owned
Transaction Intellectual Property or Licensed Transaction Intellectual Property
or upon the rights of the Company, SAP Thai or a Seller therein. Except as
disclosed in Section 3.16(b) of the Disclosure Schedule, none of Parent, the
Company, SAP Thai nor an Other Seller has granted any license or other right to
any other Person with respect to the Transaction Intellectual Property. The
consummation of the transactions contemplated by this Agreement will not result
in the termination or impairment of any of the Transaction Intellectual
Property.
(c) With respect to all Licensed Transaction Intellectual Property and
Owned Transaction Intellectual Property, except as would not have a Material
Adverse Effect, the registered user provisions (required due to the manner in
which the Transaction Intellectual Property is currently being used) of all
nations requiring such registrations have been complied with.
(d) Parent has, or has caused to be, delivered to the Purchaser correct and
complete copies of all the licenses and sublicenses for the Licensed Transaction
Intellectual Property and any and all ancillary documents modifying or
qualifying or otherwise material thereto (including, without limitation, all
amendments, consents and evidence of commencement dates and expiration dates).
With respect to each of such licenses and sublicenses:
(i) such license or sublicense, together with all ancillary documents
delivered pursuant to the first sentence of this Section 3.16(d), is valid
and binding and in full force and effect and represents the entire
agreement between the respective licensor and licensee with respect to the
subject matter of such license or sublicense;
(ii) except as otherwise set forth in Section 3.16(d)(ii) of the
Disclosure Schedule, such license or sublicense will not cease to be valid
and binding and in full force and effect on terms identical to those
currently in effect as a result of the consummation of the transactions
contemplated by this Agreement, nor will the consummation of the
transactions contemplated by this Agreement constitute a breach or default
under such license or sublicense or otherwise give the licensor or
sublicensor a right to terminate such license or sublicense;
(iii) except as otherwise disclosed in Section 3.16(d)(iii) of the
Disclosure Schedule, with respect to each such license or sublicense: (A)
none of Parent, the Company, SAP Thai nor an Other Seller has received any
written notice of termination or cancellation under such license or
sublicense and no licensor or sublicensor has any right of termination or
cancellation under such license or sublicense except in connection with the
default of the Company, SAP Thai or an Other Seller thereunder, (B) none of
Parent, the Company, SAP Thai nor an Other Seller has received any notice
of a breach or default under such license or sublicense, which breach or
default has not been cured, and (C) none of Parent, SAP Thai, the Company
nor an Other Seller has granted to any other Person any rights, adverse or
otherwise, under such license or sublicense;
(iv) none of the Company, SAP Thai, a Seller, nor (to Parent's
Knowledge) any other party to such license or sublicense is in breach or
default in any material respect, and, to Parent's Knowledge, no event has
occurred that, with notice or lapse of time would constitute such a breach
or default or permit termination, modification or acceleration under such
license or sublicense;
(v) to Parent's Knowledge, no Actions have been made or asserted or
are pending (nor, to Parent's Knowledge, has any such Action been
threatened, nor has there been any notification sufficient to result in
reasonable apprehension that any such Action might ensue) against the
Company, SAP Thai or a Seller either (A) based upon or challenging or
seeking to deny or restrict the use by the Company, SAP Thai or a Seller of
any of the Licensed Transaction Intellectual Property or (B) alleging that
any Licensed Transaction Intellectual Property is being licensed,
sublicensed or used in violation of any Intellectual Property rights of any
Person, or (C) alleging that any services provided or products manufactured
or sold by the Company, SAP Thai or a Seller using any Licensed Transaction
Intellectual Property (with respect to the conduct of the SAP Business) are
being provided, manufactured or sold in violation of any patents or
trademarks or other rights of any Person; and
(vi) to Parent's Knowledge, no Person is using any Intellectual
Property that in any manner infringes upon the Licensed Transaction
Intellectual Property or upon the rights of the Company, SAP Thai or a
Seller therein.
(e) Except as set forth in Section 3.16(e) of the Disclosure Schedule, with
respect to Transaction Intellectual Property, Parent has not received written
notification that any pending applications to register trademarks, service marks
or copyrights or any pending patent applications will not be granted or, if
granted, will not be valid and enforceable; provided, however, that rejections
to requested patents are customarily received from the U.S. Patent and Trademark
Office in connection with filed patent applications. The patents and trademarks
included in the Transaction Intellectual Property have not been adjudged invalid
or unenforceable in whole or part, and to Parent's Knowledge, are valid and
enforceable. Parent makes no representation or warranty that any pending patent
applications relating to Transaction Intellectual Property will be granted.
(f) The Transaction Intellectual Property constitutes all the Intellectual
Property used or held or intended to be used by the Company, SAP Thai or a
Seller or forming a part of, used, held or intended to be used in the SAP
Business and there are no other items of Intellectual Property owned or licensed
by Parent that are material to the Company, SAP Thai or the SAP Business.
SECTION 3.17. Real Property. (a) Section 3.17(a) of the Disclosure Schedule
lists: (i) the street address of each parcel of SAP Real Property, (ii) the date
on which each parcel of SAP Real Property was acquired or leased, (iii) the
current owner of each such parcel of SAP Real Property, (iv) information
relating to the recordation of any deed pursuant to which each such parcel of
SAP Real Property was acquired and (v) the current use of each such parcel of
SAP Real Property.
(b) The Sellers will make available to the Purchaser true and complete
copies of each deed for each parcel of SAP Real Property and all the title
insurance policies, title reports, licensed surveys, certificates of occupancy,
environmental reports and audits, appraisals, Permits, other material title
documents for the SAP Real Property which are in their possession or control.
Except as described in Section 3.17(b) of the Disclosure Schedule, or as would
not have a Material Adverse Effect, (i) there is no violation of any Law
(including, without limitation, any building, planning or zoning Law) relating
to any of the SAP Real Property, (ii) either the Company, SAP Thai or the
Sellers, as the case may be, is in peaceful and undisturbed possession of each
parcel of SAP Real Property and there are no contractual or legal restrictions
that preclude or restrict the ability to use the premises for the purposes for
which they are currently being used, and (iii) to Parent's Knowledge, all
existing water, sewer, steam, gas, electricity, telephone and other utilities
required for the construction, use, occupancy, operation and maintenance of the
SAP Real Property are adequate for the conduct of the business of the Company,
SAP Thai and the Sellers as it has been and currently is conducted and there are
no material latent defects or adverse physical conditions affecting the SAP Real
Property or any of the facilities, buildings, structures, erections,
improvements, fixtures, fixed assets and personalty of a permanent nature
annexed, affixed or attached to, located on or forming part of the SAP Real
Property that would have a Material Adverse Effect. Except as set forth in
Section 3.17(b) of the Disclosure Schedule, neither the Company, SAP Thai nor
any of the Sellers has leased or subleased any parcel or any portion of any
parcel of SAP Real Property to any other Person.
(c) There are no condemnation proceedings or eminent domain proceedings of
any kind of which Parent has received written notice nor, to Parent's Knowledge,
are there any such proceedings threatened against the SAP Real Property.
(d) Except as set forth in Section 3.17 of the Disclosure Schedule, all the
SAP Real Property is occupied under a valid and current certificate of occupancy
or similar permit and, to Parent's Knowledge, the transactions contemplated by
this Agreement will not require the issuance of any new or amended certificate
of occupancy and, to Parent's Knowledge, there are no facts that would prevent
the SAP Real Property from being occupied by the Company, SAP Thai or the
Purchaser, as the case may be, after the Closing in substantially the same
manner as occupied by the Company, SAP Thai or the Sellers immediately prior to
the Closing.
(e) Except as set forth in Section 3.17 of the Disclosure Schedule, all
improvements on the SAP Real Property constructed by or on behalf of the
Company, SAP Thai or the Sellers or, to Parent's Knowledge, constructed by or on
behalf of any other Person were constructed in compliance with all applicable
Laws (including, without limitation, any building, planning or zoning Laws)
affecting such SAP Real Property, except, in each case, as would not have a
Material Adverse Effect.
(f) No improvements on the SAP Real Property and none of the current uses
and conditions thereof violate any applicable deed restrictions or other
applicable covenants, restrictions, agreements, existing site plan approvals,
zoning or subdivision regulations or urban redevelopment plans as modified by
any duly issued variances, and no permits, licenses or certificates pertaining
to the ownership or operation of all improvements on the SAP Real Property,
other than those required to be assigned to Purchaser pursuant to this
Agreement, are required by any Governmental Authority having jurisdiction over
the SAP Real Property, except, in each case, as would not have a Material
Adverse Effect.
(g) Except for fences, curbs, gutters, sidewalks and light fixtures or
signs, all improvements on any SAP Real Property are wholly within the lot
limits of such SAP Real Property and do not encroach on any adjoining premises,
and there are no encroachments on any SAP Real Property by any improvements
located on any adjoining premises, except, in each case, as would not have a
Material Adverse Effect.
SECTION 3.18. Tangible Personal Property. (a) Section 3.18(a) of the
Disclosure Schedule lists, as of the date thereof, each material item or
distinct group of machinery, equipment, tools, supplies, furniture, fixtures,
personalty, vehicles, rolling stock and other tangible personal property other
than Inventories (the "Tangible Personal Property") used primarily in the SAP
Business or owned or leased by the Company, SAP Thai or a Seller, other than
certain Excluded Assets described therein.
(b) Parent has, or has caused to be, delivered to the Purchaser true and
complete copies of all material leases and subleases for Tangible Personal
Property and any and all material ancillary documents modifying or qualifying or
otherwise material thereto (including, without limitation, all amendments,
consents and evidence of commencement dates and expiration dates). With respect
to each of such material leases and subleases:
(i) such lease or sublease, together with all ancillary documents
delivered pursuant to the first sentence of this Section 3.18(b), is legal,
valid, binding, enforceable and in full force and effect and represents the
entire agreement between the respective lessor and lessee with respect to
such property;
(ii) except as set forth in Section 3.18(b) of the Disclosure
Schedule, such lease or sublease will not cease to be legal, valid,
binding, enforceable and in full force and effect on terms identical to
those currently in effect as a result of the consummation of the
transactions contemplated by this Agreement, nor will the consummation of
the transactions contemplated by this Agreement constitute a breach or
default under such lease or sublease or otherwise give the lessor a right
to terminate such lease or sublease;
(iii) except as otherwise disclosed in Section 3.18(b) of the
Disclosure Schedule, with respect to each such lease or sublease: (A) none
of Parent, the Company, SAP Thai nor an Other Seller has received any
written notice of cancellation or termination under such lease or sublease
and no lessor has any right of termination or cancellation under such lease
or sublease except as may be provided therein, (B) none of Parent, the
Company, SAP Thai nor an Other Seller has received any written notice of a
breach or default under such lease or sublease, which breach or default
has, to Parent's Knowledge, not been cured, and (C) none of Parent, the
Company, SAP Thai nor an Other Seller has granted to any other Person any
material rights, adverse or otherwise, under such lease or sublease; and
(iv) none of the Company, SAP Thai, the Sellers nor (to Parent's
Knowledge) any other party to such lease or sublease, is in breach or
default in any material respect and, to Parent's Knowledge, no event has
occurred that, with notice or lapse of time, would constitute such a breach
or default or permit termination, modification or acceleration under such
lease or sublease.
(c) Either the Company, SAP Thai or the Sellers, as the case may be, has
the full right to exercise any renewal options contained in the leases and
subleases pertaining to the Tangible Personal Property on the terms and
conditions contained therein and upon due exercise would be entitled to enjoy
the use of each item of leased Tangible Personal Property for the full term of
such renewal options.
SECTION 3.19. Assets. (a) Except as disclosed in the Disclosure Schedule,
either the Company, SAP Thai or a Seller, as the case may be, owns, leases or
has the legal right to use all the properties and assets used or intended to be
used in the conduct of the SAP Business and, with respect to contract rights, is
a party to and enjoys the right to the benefits of all contracts, agreements and
other arrangements used or intended to be used by the Company, SAP Thai or a
Seller in the conduct of the SAP Business (all such assets, properties and
contract rights being, the "Transferred Assets"); provided, however, that to the
extent that portions of the representations in Sections 3.16(a),
3.16(d)(iv)through(vi) and 3.16(e) are made to Parent's Knowledge, then this
sentence shall be similarly qualified as respects such portions of Sections
3.16(a), 3.16(d)(iv)through(vi) and 3.16(e). Either the Company, SAP Thai or a
Seller, as the case may be, has good and marketable title to, or, in the case of
leased or subleased assets, valid and subsisting leasehold interests in, all
such assets, free and clear of all Encumbrances, except (i) as disclosed in
Sections 3.15, 3.16, 3.17, 3.18 or 3.19(a) of the Disclosure Schedule or the
Agreement, and (ii) Permitted Encumbrances.
(b) The Transferred Assets constitute all the properties, assets and rights
used, held or intended to be used in, and all such properties, assets and rights
as are primarily related to, or necessary in the conduct of, the SAP Business as
currently conducted by the Company, SAP Thai or the Sellers, except as described
in Section 3.19(b) of the Disclosure Schedule.
SECTION 3.20. Employee Benefit Matters. (a) Plans and Material Documents.
Section 3.20(a) of the Disclosure Schedule lists (i) each employee benefit plan
(as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), and each other bonus, stock option, stock purchase,
restricted stock, incentive, deferred compensation, retiree medical or life
insurance, supplemental retirement, severance or other material benefit plans,
programs, policies or arrangements, and all employment, termination, severance
or other contracts or agreements (whether or not in writing), to which the
Company, SAP Thai, or a Seller (with respect to the SAP Business) is a party,
with respect to which the Company, SAP Thai, or a Seller (with respect to the
SAP Business) has any obligations or which are maintained, contributed to or
sponsored by the Company, SAP Thai, or a Seller for the benefit of any current
or former independent contractor of the Company, SAP Thai, or a Seller (with
respect to the SAP Business) or any current or former employee, officer or
director of the Company, SAP Thai, or a Seller (with respect to the SAP
Business), (ii) each employee benefit plan for which the Company, SAP Thai, or a
Seller (with respect to the SAP Business) could incur liability under Section
4069 of ERISA in the event such plan has been or were to be terminated, (iii)
any plan in respect of which the Company, SAP Thai, or a Seller (with respect to
the SAP Business) could incur liability under Section 4212(c) of ERISA and (iv)
any contracts, arrangements or understandings between Parent or any of its
Affiliates and any employee of the Company, SAP Thai, or a Seller (with respect
to the SAP Business), including, without limitation, any contracts, arrangements
or understandings relating to the sale of the Company ((i), (ii), (iii) and (iv)
collectively, the "Plans"). Except as described in Section 3.20 of the
Disclosure Schedule, each Plan is in writing and Parent has furnished the
Purchaser with a complete and accurate copy of each Plan and a complete and
accurate copy of each material document prepared in connection with each such
Plan including, without limitation, (i) a copy of each trust or other funding
arrangement, (ii) each summary plan description and summary of material
modifications, (iii) the IRS Form 5500 filed with respect to the most recent
plan year, (iv) the most recently received IRS determination letter for each
such Plan, and (v) the most recently prepared actuarial report and financial
statement in connection with each such Plan. Except as disclosed in Section
3.20(a) of the Disclosure Schedule, there are no other employee benefit plans,
programs, arrangements or agreements, whether formal or informal, whether in
writing or not, to which the Company, SAP Thai, or a Seller (with respect to the
SAP Business) is a party, with respect to which the Company, SAP Thai, or a
Seller (with respect to the SAP Business) has any obligation or which are
maintained, contributed to or sponsored by the Company, SAP Thai, or a Seller
for the benefit of any current or former independent contractor of the Company,
SAP Thai, or a Seller (with respect to the SAP Business) or any current or
former employee, officer or director of the Company, SAP Thai, or a Seller (with
respect to the SAP Business). Neither the Company, SAP Thai nor any Seller (with
respect to the SAP Business) has any express or implied commitment (i) to
create, incur liability with respect to or cause to exist any other employee
benefit plan, program or arrangement, (ii) to enter into any contract or
agreement to provide compensation or benefits to any individual or (iii) to
modify, change or terminate any Plan, other than with respect to a modification,
change or termination required by ERISA or the Code.
(b) Absence of Certain Types of Plans. None of the Plans is a multiemployer
plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a
"Multiemployer Plan") or a single employer pension plan (within the meaning of
Section 4001(a)(15) of ERISA) for which the Company, SAP Thai, or a Seller (with
respect to the SAP Business) could incur liability under Section 4063 or 4064 of
ERISA (a "Multiple Employer Plan"). Except as described in Section 3.20 of the
Disclosure Schedule, none of the Plans provides for the payment of separation,
severance, termination or similar-type benefits to any Person or obligates, the
Company, SAP Thai, or a Seller (as it relates to the SAP Business) to pay
separation, severance, termination bonus, retirement, enhanced benefits nor any
acceleration, vesting, distribution or increase in benefits or obligations or
similar-type benefits solely as a result of any transaction contemplated by this
Agreement or as a result of a "change in control", within the meaning of such
term under Section 280G of the Code. None of the Plans provides for or promise
retiree medical, disability or life insurance benefits to any current or former
employee, officer or director of the Company, SAP Thai, or a Seller (with
respect to the SAP Business), except to the extent required by Part 6 of Title I
of ERISA.
(c) Compliance with Applicable Law. Except as would not result in a
Material Adverse Effect, (i) each Plan is operated in all respects in accordance
with the requirements of all applicable Law, including, without limitation,
ERISA and the Code and, to Parent's Knowledge, all Persons who participate in
the operation of such Plans and all Plan "fiduciaries" (within the meaning of
Section 3(21) of ERISA) are acting in all respects in accordance with the
provisions of applicable Law, including, without limitation, ERISA and the Code;
(ii) the Company, SAP Thai and each Seller (with respect to the SAP Business)
have performed all obligations required to be performed by them under, are not
in any respect in default under or in violation of, and have no knowledge of any
default or violation by
any party to, any Plan; and (iii) no legal action, suit or claim is pending or
threatened with respect to any Plan (other than claims for benefits in the
ordinary course) and no fact or event exists that could give rise to any such
action, suit or claim.
(d) Qualification of Certain Plans. Each Plan which is intended to be
qualified under Section 401(a) of the Code or Section 401(k) of the Code has
received a favorable determination letter from the IRS that it is so qualified
and each trust established in connection with any Plan which is intended to be
exempt from federal income taxation under Section 501(a) of the Code has
received a determination letter from the IRS that it is so exempt and, to
Parent's Knowledge, no fact or event has occurred since the date of such
determination letter from the IRS to adversely affect the qualified status of
any such Plan or the exempt status of any such trust. Each trust maintained or
contributed to by, the Company, SAP Thai or a Seller for the benefit of any
current or former independent contractor of the Company, SAP Thai or a Seller
(with respect to the SAP Business) or any current or former employee, officer or
director of the Company, SAP Thai or a Seller (with respect to the SAP Business)
which is intended to be qualified as a voluntary employees' beneficiary
association and which is intended to be exempt from federal income taxation
under Section 501(c)(9) of the Code has received a favorable determination
letter from the IRS that it is so qualified and so exempt and, to Parent's
Knowledge, no fact or event has occurred since the date of such determination by
the IRS to adversely affect such qualified or exempt status.
(e) Absence of Certain Liabilities and Events. With respect to the Plans,
no event has occurred and, to Parent's Knowledge, there exists no condition or
set of circumstances in connection with which the Company, SAP Thai, or a Seller
(with respect to the SAP Business) could reasonably be expected to be subject to
any liability under the terms of such Plans, ERISA, the Code or any other
applicable Law, which in any such case would have a Material Adverse Effect.
(f) Plan Contributions and Funding. All contributions, premiums or payments
required to be made with respect to any Plan are fully deductible for income tax
purposes. Parent has not received notice that any such deduction previously
claimed has been challenged by any government entity.
(g) Laws Relating to Disability. Except as set forth in Section 3.20(g) of
the Disclosure Schedule, the Company, SAP Thai and each Seller (with respect to
the SAP Business) are in compliance with the requirements of the Americans With
Disabilities Act, the U.K. Disability Discrimination ▇▇▇ ▇▇▇▇, and any
applicable Thai Law including, without limitation, the Cripples Capability
Reformation Act, B.E. 2534 (1991), except to the extent that failure to comply
with such legislation would not have a Material Adverse Effect.
(h) WARN Act. The Company, SAP Thai and each Seller have not incurred any
liability under, and have complied in all respects with, the Worker Adjustment
Retraining Notification Act and the regulations promulgated thereunder and all
similar state and local "plant-closing" Laws ("WARN"), and do not reasonably
expect to incur any such liability as a result of actions taken or not taken
prior to the Closing Date, except to the extent that such liability may be
incurred as a result of the transaction contemplated by this Agreement. Section
3.20(h) of the Disclosure Schedule lists (i) all the employees terminated or
laid off by the Company during the 90 days prior to the date hereof and (ii) all
the employees of the Company who have experienced a reduction in hours of work
of more than 50% during any month during the 90 days prior to the date hereof
and describes all notices given by the Company in connection with WARN. Parent
will, by written notice to the Purchaser, update Section 3.20(h) of the
Disclosure Schedule at Closing to include any such terminations, layoffs and
reductions in hours from the date hereof through the Closing Date and will
furnish the Purchaser with any related information which they may reasonably
request. Parent will indemnify and hold harmless the Purchaser with respect to
any liability under WARN to the extent arising from the actions or action, of
the Company, SAP Thai or each Seller on or prior to the Closing Date except to
the extent relating to the transactions contemplated by this Agreement.
(i) Foreign Benefit Plans. In addition to the foregoing, with respect to
each Plan that is subject to or governed by the Law of any jurisdiction other
than the United States or any State or Commonwealth of the United States (each a
"Foreign Benefit Plan"), and except for matters that would not have a Material
Adverse Effect:
(A) all employer and employee contributions to each Foreign Benefit Plan
required by Law or by the terms of such Foreign Benefit Plan have been made, or,
if applicable, accrued in accordance with normal accounting practices, and a pro
rata contribution for the period prior to and including the Closing Date has
been made or accrued;
(B) the fair market value of the assets of each funded Foreign Benefit
Plan, the liability of each insurer for any Foreign Benefit Plan funded through
insurance or the book reserve established for any Foreign Benefit Plan, together
with any accrued contributions, is sufficient to procure or provide for the
benefits determined on an ongoing basis (actual or contingent) calculated to the
Closing Date using a methodology consistent with Financial Accounting Standards
Board Statement No. 87 ("FAS No. 87") calculating the projected benefit
obligations, applying the projected unit credit method, with respect to all
current participants under such Foreign Benefit Plan according to the actuarial
assumptions and valuations most recently used to determine employer
contributions to such Foreign Benefit Plan, and the transactions contemplated by
this Agreement shall not cause such assets or insurance obligations to be less
than such benefit obligations;
(C) each Foreign Benefit Plan required to be registered has been registered
and has been maintained in good standing with applicable regulatory authorities
and each Foreign Benefit Plan is now and always has been operated in compliance
with all applicable non-U.S. Laws;
(D) the Company, the Sellers and SAP Thai have provided the Purchaser with
true and complete copies of all Foreign Benefit Plans (and in the case where
such Foreign Benefit Plans are not in writing, a written description of each
such Foreign Benefit Plan) including all information relating to all benefits
payable or prospectively payable under each Foreign Benefit Plan (including
supplemental benefits). Except as set forth in Section 3.20(i) of the Disclosure
Schedule, there are no Foreign Benefit Plans, programs, schemes or arrangements
to pay any pension or make any other payment after retirement, death or
otherwise with respect to any employee or former employee of the SAP Business
and each Seller, SAP Thai and the Company do not sponsor, contribute or maintain
any scheme, plan, program or arrangement having as its purpose or one of its
purposes the making of such payments or the provision or such benefits;
(E) the Company, the Sellers and SAP Thai have provided the Purchaser with
a complete and accurate copy of all the documentation (including, without
limitation, the trust deeds, rules, announcements and booklets) governing each
Foreign Benefit Plan;
(F) neither the Company, SAP Thai nor any Seller are engaged in any
litigation, arbitration or mediation proceedings with respect to any Foreign
Benefit Plan, and there exists no condition or set of circumstances in
connection with which the Company, SAP Thai or a Seller (with respect to the SAP
Business) could reasonably be expected to be subject to any litigation,
arbitration or mediation proceeding with respect to any Foreign Benefit Plan;
(G) neither the Company, SAP Thai nor any Seller (with respect to the SAP
Business) are in violation of any non-U.S. Laws, including, without limitation,
the U.K. Financial Services Act; and
(H) with respect to any part-time employees employed by Chemdal U.K. at any
time within the preceding 12-month period, to Parent's Knowledge, there have
been no terminations of such part-time employees which could result in any
Liability under Article 119 of the Treaty of Rome or Section 62 of the ▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇.
SECTION 3.21. Labor Matters. With respect to the SAP Business and the
Persons employed in connection with the SAP Business, and except as set forth in
Section 3.21 of the Disclosure Schedule or as would not have a Material Adverse
Effect, (a) neither the Company, SAP Thai, or a Seller is a party to any
collective bargaining agreement or other labor union contract applicable to
Persons employed by the Company, SAP Thai or a Seller and currently there are no
organizational campaigns, petitions or other unionization activities seeking
recognition of a collective bargaining unit which could reasonably affect the
SAP Business, (b) there are no controversies, strikes, slowdowns or work
stoppages pending or, to Parent's Knowledge, threatened between the Company, SAP
Thai or a Seller and any of their respective employees, and neither the Company,
SAP Thai nor a Seller has experienced any
such controversy, strike, slowdown or work stoppage within the past three years,
(c) neither the Company, SAP Thai nor any Seller has breached or otherwise
failed to comply with the provisions of any applicable collective bargaining or
union contract and there are no written grievances outstanding against the
Company, SAP Thai or a Seller under any such agreement or contract, (d) neither
the Company, SAP Thai nor a Seller has committed unfair labor practices nor has
there been any unfair labor practice complaints pending against the Company, SAP
Thai or a Seller before the National Labor Relations Board or any other
Governmental Authority involving union representation or employees of the
Company, SAP Thai or the Sellers, (e) the Company, SAP Thai and the Sellers are
currently in compliance with all applicable Laws relating to the employment of
labor, including those related to wages, hours, collective bargaining and the
payment and withholding of Taxes and other sums as required by the appropriate
Governmental Authority and have withheld and paid to the appropriate
Governmental Authority or are holding for payment not yet due to such
Governmental Authority all amounts required to be withheld from employees of the
Company, SAP Thai and each Seller and are not liable for any arrears of wages,
Taxes, penalties or other sums for failure to comply with any of the foregoing,
(f) the Company, SAP Thai and the Sellers have paid in full to all their
respective employees or adequately accrued for in accordance with U.S. GAAP all
wages, salaries, commissions, bonuses, benefits and other compensation due to or
on behalf of such employees, (g) there is no written claim with respect to
payment of wages, salary or overtime pay that has been asserted or is now
pending or, to Parent's Knowledge, threatened before any Governmental Authority
with respect to any Persons currently or formerly employed by the Company, SAP
Thai or a Seller, (h) neither the Company, SAP Thai nor a Seller is a party to,
or otherwise bound by, any consent decree with, or citation by, any Governmental
Authority relating to employees or employment practices, (i) there is no written
charge or proceeding with respect to a violation of any occupational safety or
health standards that has been asserted or is now pending or, to Parent's
Knowledge, threatened with respect to the Company, SAP Thai or any Seller, and
(j) there is no written charge of discrimination in employment or employment
practices, as respects any legally protected category, for any reason,
including, without limitation, age, gender, race or religion, which has been
asserted or is now pending or, to Parent's Knowledge, threatened before the
United States Equal Employment Opportunity Commission, or any other Governmental
Authority in any jurisdiction in which the Company, SAP Thai or any Sellers have
employed or currently employ any Person.
SECTION 3.22. Key Employees. All directors, officers, management employees,
and technical and professional employees of the Company, SAP Thai and each
Seller employed in the SAP Business are under an obligation to the Company, SAP
Thai or a Seller to maintain in confidence all confidential or proprietary
information acquired by them in the course of their employment and to assign to
the Company, SAP Thai or a Seller all inventions made by them within the scope
of their employment during such employment and for a reasonable period
thereafter. The Company, SAP Thai and the Sellers shall use all reasonable
efforts to assign such arrangements to the Purchaser as of the Closing Date.
SECTION 3.23. Taxes. (a) Except as set forth in Section 3.23 of the
Disclosure Schedule, (i) all returns and reports in respect of Taxes required to
be filed by or with respect to the Company, SAP Thai or the Sellers (including
the consolidated federal income Tax return of Parent and any state, local or
foreign Tax return or report that includes the Company, SAP Thai or any Other
Seller on a consolidated or combined basis) have been timely filed, (ii) all
Taxes required to be shown on such returns and reports or otherwise due have
been timely paid, (iii) all such returns and reports (insofar as they relate to
the activities or income of the Company, SAP Thai, the SAP Assets or the SAP
Business) are true, correct and complete in all material respects, (iv) no
adjustment relating to such returns or reports has been proposed formally or
informally by any Tax authority (insofar as either relates to the activities or
income of the Company, SAP Thai, the SAP Assets or the SAP Business or could
result in Liability of the Company or SAP Thai on the basis of joint and/or
several liability) and, to Parent's Knowledge, no basis exists for any such
adjustment, (v) there are no pending or, to Parent's Knowledge, threatened
actions or proceedings for the assessment or collection of Taxes against the
Company, SAP Thai, the SAP Assets or the SAP Business or (insofar as either
relates to the activities or income of the Company, SAP Thai, the SAP Assets or
the SAP Business or could result in Liability of the Company or SAP Thai on the
basis of joint and/or several liability) any corporation that was included in
the filing of a return with Parent, the Company, SAP Thai or the Other Sellers
on a consolidated or combined basis, (vi) no consent under Section 341(f) of the
Code has been filed with respect to the Company or SAP Thai, (vii) there are no
Tax liens on any assets of the Company, SAP Thai or any of the SAP Assets,
(viii) neither Parent nor any Subsidiary or Affiliate of Parent or any Other
Seller is a party to any agreement or arrangement that would result, separately
or in the aggregate, in the payment of any "excess parachute payments", within
the meaning of Section 280G of the Code (insofar as relates to the Company, SAP
Thai or the SAP Business), (ix) no acceleration of the vesting schedule for any
property that is substantially unvested within the meaning of the Regulations
under Section
83 of the Code will occur in connection with the transactions contemplated by
this Agreement (insofar as relates to the Company, SAP Thai or the SAP
Business), except for the accelerated vesting of stock options and other
benefits pursuant to Article VI hereof; (x) from and after January 1, 1990, the
Company has been and continues to be a member of the affiliated group (within
the meaning of Section 1504(a)(1) of the Code) for which Parent files a
consolidated return as the common parent, and has not been includible in any
other consolidated return for any taxable period for which the statute of
limitations has not expired, (xi) neither the Company nor SAP Thai has been at
any time a member of any partnership or joint venture or the holder of a
beneficial interest in any trust for any period for which the statute of
limitations for any Tax has not expired, (xii) the Company has not been a United
States real property holding corporation within the meaning of Section 897(c)(2)
of the Code during the applicable period specified in Section 897(c)(1)(A)(ii)
of the Code, (xiii) none of the SAP Assets held by SAP Thai or the Other Sellers
constitute U.S. real property interests within the meaning of Section 897(c)(i)
of the Code, (xiv) neither the Company, nor SAP Thai is subject to any
accumulated earnings Tax penalty or personal holding company Tax, and (xv) SAP
Thai has never been included in the filing of a Tax return or report on a
consolidated, combined or unitary basis.
(b) Except as disclosed in Section 3.23 of the Disclosure Schedule: (i)
there are no outstanding waivers or agreements extending the statute of
limitations for any period with respect to any Tax to which the Company or SAP
Thai may be subject; (ii) the Company (A) has not and is not projected to have
an amount includible in its income for the current taxable year under Section
951 of the Code, (B) does not have an unrecaptured overall foreign loss within
the meaning of Section 904(f) of the Code and (C) has not participated in or
cooperated with an international boycott within the meaning of Section 999 of
the Code; (iii) neither the Company nor SAP Thai has any (A) income reportable
for a period ending after the Closing Date but attributable to a transaction
(e.g., an installment sale) occurring in or a change in accounting method made
for a period ending on or prior to the Closing Date which resulted in a deferred
reporting of income from such transaction or from such change in accounting
method (other than a deferred intercompany transaction), or (B) deferred gain or
loss arising out of any deferred intercompany transaction (insofar as either
could result in material Taxes to the Company or SAP Thai for any taxable
period, or portion of any taxable period, ending after the Closing Date); (iv)
there are no requests from any governmental or taxing authority for information
currently outstanding that could affect the Taxes of the Company or SAP Thai;
(v) there are no proposed reassessments of any property owned by the Company,
SAP Thai or of any of the SAP Assets and there are no other proposals from any
governmental or taxing authority that could increase the amount of any Tax to
which the Purchaser (in respect of the SAP Business), the Company or SAP Thai
would be subject, or which would be imposed, in respect of real property of the
Company, SAP Thai or the SAP Business; (vi) the Company is not obligated under
any agreement with respect to industrial development bonds or similar
obligations, with respect to which the excludibility from gross income of the
holder for federal income Tax purposes could be affected by the transactions
contemplated hereunder; and (vii) no power of attorney that is currently in
force has been granted with respect to any request for a ruling or similar
matter relating to Taxes that could affect the Company, SAP Thai, the SAP Assets
or the SAP Business.
(c) (i) Section 3.23(c) of the Disclosure Schedule lists all income,
franchise and similar Tax returns and reports (federal, state, local and
foreign) filed with respect to the Company and SAP Thai for taxable periods
ended on or after December 31, 1997, indicates for which jurisdictions Tax
returns and reports have been filed on the basis of a unitary group, indicates
the most recent income, franchise or similar Tax return or report for each
relevant jurisdiction for which an audit has been completed or the statute of
limitations has lapsed and indicates all Tax returns and reports that currently
are the subject of audit, (ii) Parent has delivered to the Purchaser correct and
complete copies of all federal, state and foreign income, franchise and similar
Tax returns and reports, examination reports, and statements of deficiencies
assessed against or agreed to by the Company and SAP Thai since January 1, 1996,
(iii) Parent has delivered to the Purchaser a true and complete copy of any
Tax-sharing or allocation agreement or arrangement involving the Company or SAP
Thai and a true and complete description of any such unwritten or informal
agreement or arrangement, and (iv) Parent has delivered to the Purchaser
complete and correct copies of all pro forma federal income Tax returns of the
Company prepared in connection with the Parent's or any other consolidated
federal income Tax return, accompanied by a schedule reconciling the items in
the pro forma Tax return to the items as included in the consolidated Tax return
for all taxable years ending on or after December 31, 1997.
SECTION 3.24. Insurance. (a) Section 3.24(a) of the Disclosure Schedule
sets forth the following information with respect to each insurance policy
(including policies providing property, casualty, liability, including
directors' and officers' liability, workers' compensation, and bond and surety
arrangements) under which the Company, SAP Thai, an Other Seller or the SAP
Business has been an insured, a named insured or otherwise the principal
beneficiary of coverage at any time within the past three years:
(i) the name, address and telephone number of the agent or broker;
(ii) the name of the insurer and the names of the principal insured
and each named insured;
(iii) the policy number and the period of coverage;
(iv) the type, scope (including an indication of whether the coverage
was on a claims made, occurrence or other basis) and amount (including
deductibles) of coverage; and
(v) the premium charged for the policy, including, without limitation,
a description of any retroactive premium adjustments or other loss-sharing
arrangements.
(b) With respect to each such insurance policy: (i) the policy is legal,
valid, binding and enforceable in accordance with its terms, subject to
bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the
rights of creditors generally and the availability of equitable remedies and,
except for policies that have expired under their terms in the ordinary course,
is in full force and effect; (ii) neither Parent, the Company, SAP Thai, an
Other Seller nor the SAP Business is in breach or default (including any breach
or default with respect to the payment of premiums or the giving of notice) and,
to Parent's Knowledge, no event has occurred which, with notice or the lapse of
time, would constitute such a breach or default or permit termination or
modification under the policy; and (iii) no party to the policy has repudiated
in writing, or given written notice of an intent to repudiate, any provision
thereof.
(c) Section 3.24(c) of the Disclosure Schedule sets forth all material
risks against which the Company, SAP Thai, an Other Seller or the SAP Business
is self-insured or which are covered under any risk retention program in which
the Company, SAP Thai or an Other Seller participates, together with information
for the last three years of the Company's, SAP Thai's, the Other Sellers' or the
SAP Business' loss experience with respect to such risks.
(d) To Parent's Knowledge, all material assets, properties and risks of the
Company, SAP Thai, each Other Seller and the SAP Business are covered by valid
and currently effective insurance policies or binders of insurance (including,
without limitation, general liability insurance, property insurance and workers'
compensation insurance) issued in favor of the Company, SAP Thai, the Sellers,
or the SAP Business, as the case may be, in each case, in such types and amounts
and covering such risks as are specified in Section 3.24 of the Disclosure
Schedule or as otherwise are consistent with customary practices and standards
of companies engaged in businesses and operations similar to those of the
Company, SAP Thai, the Sellers, or the SAP Business, as the case may be.
(e) To Parent's Knowledge, at no time subsequent to June 30, 1999 has the
Company, SAP Thai, any of the Sellers or the SAP Business (i) been denied any
material insurance or indemnity bond coverage which it has requested, (ii) made
any material reduction in the scope or amount of its insurance coverage, or,
except as set forth in Section 3.24(e) of the Disclosure Schedule, received
written notice from any of its insurance carriers that any insurance premiums
will be subject to increase in an amount materially disproportionate to the
amount of the increases with respect thereto (or with respect to similar
insurance) in prior years or that any insurance coverage listed in Section
3.24(a) of the Disclosure Schedule will not be available in the future
substantially on the same terms as are now in effect or (iii) suffered any
extraordinary increase in premium for renewed coverage. Since June 30, 1999, no
insurance carrier has canceled, failed to renew or materially reduced any
insurance coverage for the Company, SAP Thai, the Sellers or the SAP Business or
given any notice or other indication of its intention to cancel, not renew or
reduce any such coverage.
(f) No insurance policy listed in Section 3.24(a) of the Disclosure
Schedule will cease to be legal, valid, binding, enforceable in accordance with
its terms and in full force and effect as respects matters arising out of events
occurring prior to the Closing Date on terms identical to those in effect as of
the date hereof as a result of the consummation of the transactions contemplated
by this Agreement.
SECTION 3.25. Brokers. Except for ▇▇▇▇▇▇▇▇ & Co. Inc., no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Parent. Parent is solely
responsible for the fees and expenses of ▇▇▇▇▇▇▇▇ & Co. Inc.
SECTION 3.26. Disclaimer. Except for the representations and warranties
specifically set forth in this Article III, none of the Sellers, the Company,
SAP Thai nor their Affiliates makes any (or shall in any manner whatsoever be
deemed or be construed as having made any) representation or warranty to the
Purchaser or any other Person hereunder or otherwise, express or implied.
SECTION 3.27. Disclosure Schedule. The Parties hereto acknowledge that the
mere inclusion of an item in the Disclosure Schedule as an exception to a
representation or warranty shall not be deemed an admission by the Sellers that
such item represents a material exception or fact, event or circumstance or that
such item is reasonably likely to result in a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to Parent to enter into this Agreement, the Purchaser, on
behalf of itself and any designated Affiliate that will purchase any of the SAP
Assets or the SAP Business pursuant to this Agreement, hereby represents and
warrants to Parent as follows:
SECTION 4.01. Organization and Authority of the Purchaser. The Purchaser is
a corporation duly organized, validly existing and in good standing under the
Laws of its jurisdiction of incorporation and has all necessary corporate power
and authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The Purchaser
is duly licensed or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the operation of
its business makes such licensing or qualification necessary, except to the
extent that the failure to be so licensed or qualified would not materially
adversely affect the ability of the Purchaser to carry out its obligations
under, and to consummate the transactions contemplated by, this Agreement. The
execution and delivery of this Agreement by the Purchaser, the performance by
the Purchaser of its obligations hereunder and the consummation by the Purchaser
of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser, and (assuming due authorization,
execution and delivery by Parent) this Agreement constitutes a legal, valid and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, subject to bankruptcy, insolvency, moratorium,
reorganization or similar Laws affecting the rights of creditors generally and
the availability of equitable remedies.
SECTION 4.02. No Conflict. Assuming compliance with the notification
requirements of the HSR Act and the making and obtaining of all filings,
notifications, consents, approvals, authorizations and other actions referred to
in Section 4.03, except as may result from any facts or circumstances relating
solely to Parent, the execution, delivery and performance of this Agreement by
the Purchaser do not and will not (a) violate, conflict with or result in the
breach of any provision of the Certificate of Incorporation or By-laws (or
similar organizational documents) of the Purchaser, (b) conflict with or violate
any Law or Governmental Order applicable to the Purchaser or (c) conflict with,
or result in any breach of, constitute a default (or event which with the giving
of notice or lapse or time, or both, would become a default) under, require any
consent under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation, or cancellation of, or result in the
creation of any Encumbrance on any of the assets or properties of the Purchaser
pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to which
the Purchaser is a party or by which any of such assets or properties are bound
or affected which would have a materially adverse effect on the ability of the
Purchaser to consummate the transactions contemplated by this Agreement.
SECTION 4.03. Governmental Consents and Approvals. The execution, delivery
and performance of this Agreement by the Purchaser do not and will not require
any consent, approval, authorization or other order of, action by, filing with,
or notification to, any Governmental Authority, except (a) as described in a
writing given to Parent by the Purchaser on the date of this Agreement and (b)
the notification requirements of the HSR Act and certain applicable filings
under non-U.S. merger control and competition Laws.
SECTION 4.04. Investment Purpose. The Purchaser is acquiring the Shares
solely for the purpose of investment and not with a view to, or for offer or
sale in connection with, any distribution thereof.
SECTION 4.05. Litigation. Except as disclosed in a writing given to Parent
by the Purchaser on the date of this Agreement, no claim, action, proceeding or
investigation is pending or, to the knowledge of the Purchaser, threatened,
which seeks to delay or prevent the consummation of, or which would be
reasonably likely to materially adversely affect the Purchaser's ability to
consummate, the transactions contemplated by this Agreement. The Purchaser is
not subject to any continuing order of, consent decree, settlement agreement or
similar written agreement with, or, to the knowledge of Purchaser, continuing
investigation by, any Governmental Authority, or any order, writ, judgment,
injunction, decree, determination or award of any Governmental Authority or
arbitrator that would prevent the Purchaser from performing its material
obligations under this Agreement or prevent or materially delay the consummation
of any of the transactions contemplated hereby.
SECTION 4.06. Purchaser Financial Statements. True and complete copies of
the Purchaser's audited balance sheet for the fiscal year ended as of December
31, 1998, and the related audited statements of income, together with all
related notes and schedules thereto, have been delivered by the Purchaser to
Parent and are set forth herein at Section 4.06 of the Disclosure Schedule.
SECTION 4.07. Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Purchaser.
SECTION 4.08. Disclaimer. Except for the representations and warranties
specifically set forth in this Article IV, neither the Purchaser nor its
Affiliates makes any (or shall in any manner whatsoever be deemed or be
construed as having made any) representation or warranty to Parent or to any
other Person hereunder or otherwise, express or implied.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Conduct of Business Prior to the Closing. (a) Parent
covenants and agrees that, with respect to the SAP Business and the SAP Assets
and except as described in Section 5.01(a) of the Disclosure Schedule or as
contemplated by this Agreement, between the date hereof and the time of the
Closing, Parent will, and will cause the Company, SAP Thai and each of the Other
Sellers to, conduct its business in the ordinary course and consistent with past
practice. Without limiting the generality of the foregoing, except as described
in Section 5.01(a) of the Disclosure Schedule, Parent will, with respect to the
SAP Business, and will cause each of the Company, SAP Thai and each of the Other
Sellers to, (i) continue its advertising and promotional activities, and pricing
and purchasing policies, in accordance with past practice, (ii) not
intentionally shorten or lengthen the customary payment cycles for any of its
payables or receivables, (iii) use all reasonable efforts consistent with past
practices to (A) preserve intact its business organizations and the business
organization of the SAP Business, (B) keep available to the Purchaser the
services of the employees of the Company, SAP Thai and the SAP Business, (C)
continue in full force and effect without material modification all existing
policies or binders of insurance currently maintained in respect of the Company,
SAP Thai, the Other Sellers and the SAP Business and (D) preserve the current
relationships with its customers, suppliers and other Persons with which it has
significant business relationships, (iv) exercise, but only after notice to the
Purchaser and receipt of the Purchaser's prior written approval, any rights of
renewal pursuant to the
terms of any of the leases or subleases relating to the SAP Business which by
their terms would otherwise expire, and (v) not engage in any practice, take any
action, fail to take any action or enter into any transaction which could cause
any representation or warranty of the Sellers to be untrue or result in a breach
of any covenant made by the Sellers in this Agreement.
(b) Except as described in Section 5.01(b) of the Disclosure Schedule,
Parent covenants and agrees that, prior to the Closing, without the prior
written consent of the Purchaser, neither the Company, SAP Thai nor the Sellers
(with respect to the SAP Business) will: (i) do any of the things enumerated in
the second sentence of Section 3.11 (including, without limitation, clauses (i)
through (xx) thereof, except for those actions specifically contemplated by
Section 6.10 hereof); or (ii) agree to employ any new hire on terms that would
pay any such Person an annual base salary in excess of U.S.$50,000 or annual
aggregate compensation in excess of U.S.$75,000. Notwithstanding anything to the
contrary contained in this Section 5.01(b), prior to the Closing, Parent may
cause the Company and/or SAP Thai to convey to Parent or one of its Affiliates
(i) any cash or cash equivalents owned by the Company or SAP Thai; (ii) any
Intellectual Property (including Intellectual Property used in the Poly-Pore
Business) owned by or licensed to the Company or SAP Thai that is not used
primarily in, developed primarily for, or related primarily to, the SAP Business
(it being understood that Parent may not cause the Company and/or SAP Thai to
convey to Parent or one of its Affiliates any Company Intellectual Property or
SAP Thai Intellectual Property); and (iii) all rights to the name "AMCOL" and
all related trademarks, logos, tradenames, telephone numbers and internet domain
names.
SECTION 5.02. Access to Information. (a) From the date hereof until the
Closing, upon reasonable notice, Parent will, and will cause the Company, SAP
Thai and the Other Sellers and each of its and the Company's, SAP Thai's and the
Other Sellers' officers, directors, employees, agents, representatives,
accountants and counsel to: (i) afford the officers, employees and authorized
agents, accountants, counsel, financing sources and representatives of the
Purchaser reasonable access, during normal business hours, to the offices,
properties, plants, other facilities, books and records of Parent (to the extent
such offices, plants, facilities, books and records relate to the SAP Business),
the Company, SAP Thai, the Other Sellers and to those officers, directors,
employees, agents, accountants and counsel of Parent, the Company, SAP Thai and
of each of the Other Sellers who have any knowledge relating to the Company, SAP
Thai, the Other Sellers or the SAP Business and (ii) furnish to the officers,
employees and authorized agents, accountants, counsel, financing sources and
representatives of the Purchaser such additional financial and operating data
and other information regarding the assets, properties and goodwill of the
Company, SAP Thai, the Other Sellers and the SAP Business (or legible copies
thereof) as the Purchaser may from time to time reasonably request; provided,
however, that the Company shall not be required by this provision to waive or
impair its right to assert any attorney-client privilege that may exist as
respects any Actions or other matters; provided, further, however, that none of
the Purchaser or its representatives shall contact or have any communication
with any employees of Parent or any of its Subsidiaries without the prior
written approval of Parent, except for those employees of Parent and its
Subsidiaries listed on Exhibit 5.02 attached hereto.
(b) In order to facilitate the resolution of any claims made against or
incurred by Parent prior to the Closing, or for any other reasonable purpose,
for a period of seven years after the Closing, the Purchaser shall (i) retain
the books and records of the Company, SAP Thai and the SAP Business relating to
periods prior to the Closing in a manner reasonably consistent with the prior
practice of the Company, SAP Thai and the Sellers (with respect to the SAP
Business) and (ii) upon reasonable notice, afford the officers, employees and
authorized agents and representatives of Parent reasonable access (including the
right to make, at Parent's expense, photocopies), during normal business hours,
to such books and records.
(c) In order to facilitate the resolution of any claims made by or against
or incurred by the Purchaser, the Company, SAP Thai or the SAP Business after
the Closing or for any other reasonable purpose, for a period of seven years
following the Closing, Parent shall (i) retain the books and records of Parent
which relate to the Company, SAP Thai and the SAP Business for periods prior to
the Closing and which shall not otherwise have been delivered to the Purchaser,
the Company or SAP Thai and (ii) upon reasonable notice, afford the officers,
employees and authorized agents and representatives of the Purchaser, the
Company or SAP Thai reasonable access (including the right to make photocopies,
at the expense of the Purchaser or the Company), during normal business hours,
to such books and records.
SECTION 5.03. Confidentiality. All information obtained by the Purchaser
pursuant to Section 5.02 shall be kept confidential in accordance with the
confidentiality agreement (the "Confidentiality Agreement") between the
Purchaser and Parent, dated May 17, 1999.
SECTION 5.04. Stockholders' Meeting. Parent, acting through the Board,
shall, in accordance with applicable Law and Parent's Restated Certificate of
Incorporation and By-laws, (i) duly call, give notice of, convene and hold a
meeting of its stockholders as soon as practicable following the date hereof for
the purpose of considering and taking action on this Agreement and the
transactions contemplated hereby (the "Stockholders' Meeting") and (ii) except
as the Board determines is required by its fiduciary duties under applicable Law
after having received advice from outside legal counsel (A) include in the Proxy
Statement (as defined herein) the recommendation of the Board that the
stockholders of Parent approve and adopt this Agreement and the transactions
contemplated hereby, (B) not subsequently withdraw, modify or change in any
manner adverse to the Purchaser such recommendation, and (C) use its reasonable
efforts to obtain such approval and adoption.
SECTION 5.05. Proxy Statement. (a) As promptly as practicable after the
execution of this Agreement, Parent (i) will prepare and file with the
Securities and Exchange Commission (the "SEC") the Proxy Statement (as defined
below) relating to the Stockholders' Meeting to be held to consider approval of
this Agreement and the transactions contemplated hereby and (ii) mail the Proxy
Statement to its stockholders. The Proxy Statement to be sent to the
stockholders of Parent in connection with the Stockholders' Meeting (such proxy
statement or information statement, as amended or supplemented, being referred
to herein as the "Proxy Statement") shall not, at the date the Proxy Statement
(or any amendment or supplement thereto) is first mailed to stockholders of
Parent, and at the time of the Stockholder's Meeting, contain any statement
which, at the time and in light of the circumstances under which it was made, is
false or misleading with respect to any material fact, or which omits to state
any material fact necessary in order to make the statements therein not false or
misleading or necessary to correct any statement in any earlier communication
with respect to the solicitation of proxies for the Stockholders' Meeting which
shall have become false or misleading. Any information provided by the Purchaser
to Parent which is included in the Proxy Statement shall not, on the date
provided to Parent, contain any statement which, at the time and in light of the
circumstances under which it was made, is false or misleading with respect to
any material fact, or which omits to state any material fact necessary in order
to make the statements therein not false or misleading or necessary to correct
any statement in any earlier communication with respect to the solicitation of
proxies for the Stockholders' Meeting which shall have become false or
misleading. The Proxy Statement shall comply in all material respects as to form
with the requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder.
(b) The Proxy Statement shall include the recommendation of Parent's Board
to the stockholders of the Company in favor of approval of this Agreement and
the transactions contemplated hereby; provided, however, that the Board may,
prior to the Stockholders' Meeting, withdraw, modify or change any such
recommendation only as it may determine is required by its fiduciary duties
under applicable Law after having received advice from outside legal counsel;
provided, further, that, notwithstanding anything to the contrary contained in
this Agreement, such a withdrawal, modification or change in such recommendation
shall not relieve Parent in any way whatsoever of its other obligations under
Section 5.04 or 5.05(a) of this Agreement.
(c) Parent shall advise the Purchaser of any request by the SEC for
amendment of the Proxy Statement or comments thereon and responses thereto or
requests by the SEC for additional information.
SECTION 5.06. Regulatory and Other Authorizations; Notices and Consents.
(a) Parent shall use all reasonable efforts to obtain (or cause the Company, SAP
Thai and the Other Sellers to obtain) all authorizations, consents, orders and
approvals of all Governmental Authorities and officials that may be or become
necessary for its execution and delivery of, and the performance of its
obligations pursuant to, this Agreement and will cooperate fully with the
Purchaser in promptly seeking to obtain all such authorizations, consents,
orders and approvals. Each party hereto agrees to make an appropriate filing, if
necessary, pursuant to the HSR Act with respect to the transactions contemplated
by this Agreement within five Business Days of the date hereof and to supply as
promptly as practicable to the appropriate Governmental Authorities any
additional information and documentary material that may be requested pursuant
to the HSR Act. In addition, each Party agrees to make, or cause to be made,
promptly any filing that the Purchaser identifies to Parent as being required
under any other non-United States antitrust, merger control or competition Law
or by any other antitrust, merger control or competition authority. The
Purchaser will be responsible
for paying the normal filing fees incurred by the Purchaser and Parent in
connection with the HSR Act filings and the similar merger control or
competition Law filings being made by the parties in the United Kingdom and
Germany; provided, however, that the Purchaser shall not be responsible for
paying any other fees or expenses incurred by Parent (including, without
limitation, counsel fees) in connection with the preparation of such filings.
(b) Parent shall, or shall cause the Company, SAP Thai and the Other
Sellers to, give promptly such notices to third parties and use its or their
reasonable efforts to obtain such third party consents as the Purchaser may
reasonably deem necessary or desirable in connection with the transactions
contemplated by this Agreement.
(c) The Purchaser shall cooperate and use all reasonable efforts to assist
Parent in giving such notices and obtaining such consents.
(d) In connection with any consent that may be requested by Parent or
Purchaser, neither party to this Agreement shall have any obligation to give any
guarantee or other financial or similar consideration of any nature in
connection with any notice or consent or to consent to any change in the terms
of any agreement or arrangement which either party in its sole and absolute
discretion may deem adverse to the interests of such party, the Company, SAP
Thai or the SAP Business.
(e) Parent and the Purchaser agree that, in the event any consent, approval
or authorization necessary or desirable to preserve for the SAP Business, the
Company or SAP Thai or any right or benefit under any lease, license, contract,
commitment or other agreement or arrangement to which Parent, the Company, SAP
Thai or an Other Seller is a party is not obtained prior to the Closing (and the
parties acknowledge and agree that, except as set forth herein, no such consent,
approval or authorization shall be a condition to the Purchaser's obligation to
close), Parent will, subsequent to the Closing, cooperate with the Purchaser,
the Company and SAP Thai in attempting to obtain such consent, approval or
authorization as promptly thereafter as practicable. If such consent, approval
or authorization cannot be obtained, except with respect to customer contracts,
Parent shall use its reasonable efforts to provide the Purchaser, the Company,
SAP Thai or the SAP Business, as the case may be, with the rights and benefits
of the affected lease, license, contract, commitment or other agreement or
arrangement for the term of such lease, license, contract or other agreement or
arrangement, and, if Parent provides any such rights and benefits, the
Purchaser, the Company or SAP Thai, as the case may be, shall assume the
obligations and burdens thereunder.
SECTION 5.07. Notice of Developments. Prior to the Closing, Parent shall
promptly notify the Purchaser in writing of (i) all events, circumstances, facts
and occurrences arising subsequent to the date of this Agreement of which Parent
becomes aware and which could result in any material breach of a representation
or warranty or covenant of the Sellers in this Agreement or which could have the
effect of making any representation or warranty of the Sellers in this Agreement
untrue or incorrect in any material respect and (ii) all other developments of
which Parent becomes aware and affecting the Liabilities, business, financial
condition or prospects of the Company, SAP Thai or the SAP Business, other than
changes affecting the economy or the SAP industry generally, which developments
could have a Material Adverse Effect.
SECTION 5.08. No Solicitation or Negotiation. Parent agrees that between
the date of this Agreement and the earlier of (i) the Closing and (ii) the
termination of this Agreement, none of Parent, the Company, SAP Thai, the Other
Sellers nor any of their respective Affiliates, officers, directors,
representatives or agents will (a) solicit, initiate, consider, encourage or
accept (except to the extent permitted below) any other proposals or offers from
any Person (i) relating to any acquisition or purchase of all or any portion of
the capital stock of the Company, SAP Thai or an Other Seller or all or a
substantial portion of the assets of the Company, SAP Thai, an Other Seller or
the SAP Business (other than Inventory to be sold in the ordinary course of
business consistent with past practice), or (ii) relating to any business
combination with the Company, SAP Thai or any Other Seller, or (iii) relating to
any other extraordinary business transaction involving or otherwise relating to
the Company, SAP Thai, any Other Seller or the SAP Business, or (iv) relating to
(x) any acquisition or purchase of, or tender offer or exchange offer for, more
than 20% of the equity securities of Parent, or (y) any merger, consolidation or
business combination with Parent, or other extraordinary business transaction
involving or otherwise relating to Parent that would result in any other Person
owning in excess of 20% of the outstanding equity securities of Parent (any of
the events described in (i), (ii), (iii) and (iv) being an ("Acquisition
Proposal")) (it being understood that any transaction, the sole purpose of which
is to spin-off the SAP Business to the shareholders of Parent on a pro rata
basis, shall not constitute an Acquisition Proposal for purposes of this
Agreement provided that such spin-off is not part of a transaction, or series of
transactions, the
intended result of which is that a controlling interest in the shares or the
assets of the SAP Business will be transferred to a non-affiliated third party
(other than such shareholders of Parent)) or (b) except as required by the
fiduciary duties of the Board of Directors of Parent as such duties would exist
in the absence of any limitations in this Agreement, participate in any
discussions, conversations, negotiations and other communications regarding, or
furnish to any other Person any information with respect to, or otherwise
cooperate in any way, assist or participate in, facilitate or encourage any
effort or attempt by any other Person to seek or to consummate an Acquisition
Proposal; provided, however, that prior to the consummation of the transaction
contemplated hereby, nothing contained in Section 5.08 shall prohibit the Board
from (i) furnishing information to, or entering into discussions or negotiations
with, any Person that after the date hereof makes an unsolicited Acquisition
Proposal, if, and only to the extent that, (A) prior to furnishing such
information to, or entering into discussions or negotiations with such Person or
agreeing to or endorsing any Acquisition Proposal, the Board determines in good
faith, after consultation with and based upon the advice of counsel and a
financial advisor of a nationally recognized reputation, that such Acquisition
Proposal is, or may reasonably be expected to lead to, a Superior Proposal, (B)
prior to furnishing such information to, or entering into discussions or
negotiations with, such Person, Parent provides written notice to the Purchaser
to the effect that it is furnishing information to, or entering into discussions
or negotiations with, such Person and, in any such notice to the Purchaser,
indicating in reasonable detail the terms and conditions of such Acquisition
Proposal, offer, inquiry or other contact, and (C) such information to be so
furnished has been previously delivered to the Purchaser or (ii) complying with
Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition
Proposal. Parent shall notify the Purchaser promptly if any such Acquisition
Proposal or offer, or any inquiry or other contact with any Person with respect
thereto is made. Parent agrees not to, and to cause the Company, SAP Thai and
each Other Seller not to, without the prior written consent of the Purchaser,
release any Person from, or waive any provision of, any confidentiality or
standstill agreement to which Parent, the Company, SAP Thai or an Other Seller
is a party, except in the event the Parent Board determines in good faith, after
consultation with and based upon the advice of counsel and a financial advisor
of a nationally recognized reputation, that such release or waiver is reasonably
expected to lead to a Superior Proposal. Except as required by the fiduciary
duties of the Board of Directors of Parent, Parent immediately shall cease and
cause to be terminated all existing discussions, conversations, negotiations and
other communications with any Persons conducted heretofore with respect to any
of the foregoing.
SECTION 5.09. Use of Intellectual Property. (a) Parent acknowledges that
from and after the Closing, the name "Chemdal" and all similar names, marks and
logos (all of such names, marks and logos being the "Chemdal Names") shall be
owned by the Purchaser, one of its designated Affiliates, the Company or SAP
Thai and that neither Parent nor any of its Affiliates shall have any rights in
the Chemdal Names, and that neither Parent nor any of its Affiliates will
contest the ownership or validity of any rights of the Purchaser, its designated
Affiliates, SAP Thai or the Company in or to the Chemdal Names.
(b) Except as otherwise provided in the ION Exchange License Agreement (as
defined in Section 5.19 of the Agreement), from and after the Closing, neither
the Sellers nor any of their Affiliates shall use or disclose any of the
Business Intellectual Property or the Company Intellectual Property or the SAP
Thai Intellectual Property.
SECTION 5.10. Non-Competition. (a) For a period of three (3) years after
the Closing in the European Community and for a period of ten (10) years after
the Closing in every other location or, in each case, for such shorter period as
may be required by applicable Law (in each case, the "Restricted Period"),
Parent and its Affiliates shall not engage, directly or indirectly, in any
business anywhere in the world that researches, develops, manufactures, markets,
distributes, sells, produces or supplies products or services of the kind
researched, developed, manufactured, marketed, distributed, sold, produced or
supplied by the SAP Business, the Company or SAP Thai, in each case, for the
Traditional SAP Market Segments as of the Closing Date or, without the prior
written consent of the Purchaser, directly or indirectly, own an interest in,
manage, operate, join, control, lend money or render financial or other
assistance to or participate in or be connected with, as an officer, employee,
partner, stockholder, consultant or otherwise, any Person that competes with the
Company, SAP Thai or the SAP Business in researching, developing, manufacturing,
marketing, distributing, selling, producing or supplying products or services of
the kind researched, developed, manufactured, marketed, distributed, sold,
produced or supplied by the Company, SAP Thai or the SAP Business for the
Traditional SAP Market Segments as of the Closing; provided, however, that, for
the purposes of this
Section 5.10, ownership of securities having no more than three percent of the
outstanding voting power of any competitor which are listed on any national
securities exchange or traded actively in the national over-the-counter market
shall not be deemed to be in violation of this Section 5.10 so long as the
Person owning such securities has no other connection or relationship with such
competitor.
(b) As a separate and independent covenant, Parent agrees with the
Purchaser that, for a period of three (3) years after the Closing in the
European Community and for a period of ten (10) years after the Closing in every
other location or, in each case, for such shorter period as may be required by
applicable Law, Parent will not, and will not permit its Affiliates to, in any
way, directly or indirectly, for the purpose of conducting or engaging in any
business that researches, develops, manufactures, markets, distributes, sells,
produces or supplies products or services of the kind researched, developed,
manufactured, marketed, distributed, sold, produced or supplied by the SAP
Business, the Company or SAP Thai, in each case, for the Traditional SAP Market
Segments as of the Closing, call upon, solicit, advise or otherwise do, or
attempt to do, business in the Traditional SAP Market Segments with any
customers of the SAP Business with whom the SAP Business had any dealings in the
Traditional SAP Market Segments during the period of time in which the SAP
Business, the Company and SAP Thai was owned by Parent, or take away or
interfere or attempt to interfere with any custom, trade, business or patronage
of the SAP Business in the Traditional SAP Market Segments.
(c) Parent will not, and will not permit any of its Affiliates to, directly
or indirectly, solicit the employment of, attempt to employ, or employ any
Transferred Employee or U.K. Designated Employee during the period commencing on
the Closing Date and ending twelve months thereafter, and the Purchaser will not
and will not permit any of its Affiliates to, directly or indirectly, solicit
the employment of, attempt to employ, or employ any employees of Parent or any
of is Affiliates during the period commencing on the Closing Date and ending
twelve months thereafter; provided, however, that the forgoing will not prohibit
a general solicitation to the public or general advertising; provided, further,
that the foregoing will also not prohibit (i) Parent or one of its Affiliates
from employing any Transferred Employee or U.K. Designated Employee that is
terminated by the Purchaser or one of its Affiliates without cause following the
Closing Date or (ii) the Purchaser or one of its Affiliates from employing any
employee of Parent or any of its Affiliates that is terminated by Parent or one
of its Affiliates without cause following the Closing Date or (iii) Parent or
one of its Affiliates from employing any Person listed on Exhibit 5.10(c) so
long as such employee accepts employment with Parent or one of its Affiliates on
or prior to the Closing Date.
(d) The Restricted Period shall be extended by the length of any period
during which Parent or any of its Affiliates is in breach of the terms of this
Section 5.10.
(e) Parent acknowledges that the covenants of Parent set forth in this
Section 5.10 are an essential element of this Agreement and that, but for the
agreement of Parent to comply with these covenants, the Purchaser would not have
entered into this Agreement. Parent acknowledges that this Section 5.10
constitutes an independent covenant and shall not be affected by performance or
nonperformance of any other provision of this Agreement by the Purchaser. Parent
has independently consulted with its counsel and after such consultation agrees
that the covenants set forth in this Section 5.10 are reasonable and proper.
SECTION 5.11. Release of Indemnity Obligations. Parent covenants and
agrees, on or prior to the Closing, to execute and deliver to the Purchaser, for
the benefit of the Purchaser, a general release and discharge, in the form
attached as Exhibit 5.11 hereto, releasing and discharging the Company, SAP Thai
and the SAP Business from any and all obligations to indemnify Parent or any of
its Affiliates or otherwise defend it or them or hold it or them harmless
pursuant to any agreement or other arrangement (other than this Agreement and
the agreements contemplated hereby) entered into prior to the Closing.
SECTION 5.12. Termination of Intercompany Agreements. Except for the
contracts or arrangements set forth on Exhibit 5.12 attached hereto, and except
for the Continuing Intercompany Indebtedness, prior to the Closing Date, Parent
shall cause the termination of any contracts, arrangements or agreements between
or among the Company, SAP Thai or a Seller (as it affects the SAP Business), on
the one hand, and Parent or any Affiliate of Parent (other than the Company or
SAP Thai) on the other hand, including any intercompany agreements entered into
in the ordinary course of business.
SECTION 5.13. Transition Services Agreement. At the Closing, Parent and the
Purchaser shall enter into a transition services agreement (the "Transition
Services Agreement"), substantially in the form attached hereto as Exhibit 5.13.
SECTION 5.14. CETCO Supply Agreement. At the Closing, Parent and the
Purchaser or one of its designated Affiliates shall enter into the CETCO supply
agreement (the "CETCO Supply Agreement"), substantially on the terms set forth
on Exhibit 5.14 attached hereto.
SECTION 5.15. Acrylic Acid Supply Agreement. Immediately prior to Closing,
Parent will cause Chemdal U.K. to enter into an acrylic acid supply agreement
(the "Acrylic Acid Supply Agreement") with BASF (Antwerp), a Belgian corporation
and a wholly owned Subsidiary of the Purchaser, substantially on the terms set
forth on Exhibit 5.15 attached hereto. On the Closing Date, but immediately
following the Closing, the Acrylic Acid Supply Agreement will be assigned by
Chemdal U.K. to one of the Purchaser's designated Affiliates, and such
designated Affiliate will assume all of Chemdal U.K.'s obligations under the
Acrylic Acid Supply Agreement at such time; provided, however, that the
designated Affiliate shall not be entitled to and shall not receive any portion
of the Signing Premium and, simultaneously with such assignment, such designated
Affiliate shall deliver a release and novation to Parent releasing Parent,
Sellers and their Affiliates (including Chemdal U.K.) from any further Liability
or obligation under the Acrylic Acid Supply Agreement.
SECTION 5.16. License Agreement. At the Closing, Parent and the Purchaser
shall enter into a license agreement (the "License Agreement"), substantially in
the form attached hereto as Exhibit 5.16.
SECTION 5.17. SAP Subleases. At the Closing, Purchaser will execute and
deliver to Parent subleases (the "SAP Subleases") of certain properties utilized
by the Company and the Sellers in the SAP Business, substantially on the terms
set forth on Exhibit 5.17 attached hereto.
SECTION 5.18. Product/Material Rebates. Prior to December 31, 1999, the
Purchaser shall have paid Parent in full for all amounts due to Parent from the
Purchaser and its Affiliates on account of all rebates (the "Rebates") resulting
from the purchase of products and materials by Parent and its Affiliates from
the Purchaser and such Affiliates during calendar year 1999 and, prior to
Closing, the Purchaser shall have paid Parent in full for all Rebates resulting
from the purchase of products and materials by Parent and its Affiliates from
the Purchaser and such Affiliates from December 31, 1999 to the date of Closing.
SECTION 5.19. ION Exchange License Agreement. At the Closing, Parent and
the Purchaser shall enter into a license agreement (the "ION Exchange License
Agreement"), substantially in the form attached hereto as Exhibit 5.19.
SECTION 5.20. Mixed-Use Assets. Except as may be provided for in the
Transition Services Agreement and the License Agreement, to the extent that,
following the Closing, the Sellers have retained any assets that were used, but
not primarily used, in the operation of the SAP Business prior to the Closing,
Parent will, and will cause its Subsidiaries to, permit the Purchaser, its
designated Affiliates, the Company and SAP Thai to use such assets in the
operation of the SAP Business following the Closing, on substantially the same
terms as such assets were used in the conduct of the SAP Business prior to the
Closing and as may be reasonably requested by the Purchaser, such designated
Affiliates, the Company and SAP Thai.
SECTION 5.21. Termination of SAP Indebtedness. Prior to the Closing, Parent
shall, and shall cause its Subsidiaries to, take all necessary action,
including, without limitation, the repayment of any outstanding third-party
Indebtedness relating to the Company, SAP Thai or the SAP Business, so that, at
the Closing Date, there is no outstanding Indebtedness relating to the Company,
SAP Thai or the SAP Business, other than the Continuing Intercompany
Indebtedness.
SECTION 5.22. Termination of the Celanese Supply Agreement. Upon receipt of
written instructions from the Purchaser or one of its Affiliates, Parent will
promptly (but in no event later than seven Business Days following receipt of
such instructions) cause the termination, effective December 31, 2001, of the
Supply Agreement (96-SMS-08) dated April 8, 1997, as amended, between Celanese
Ltd. and the Company (the "Celanese Agreement"), such termination to be effected
in accordance with the terms of the Celanese Agreement; provided,
however, that should the Closing not occur for any reason whatsoever, and should
Celanese be unwilling to enter into a new supply contract with Parent or the
Company on substantially similar terms to those contained in the Celanese
Agreement, then the Purchaser will supply Parent with glacial acrylic acid from
December 31, 2001 until December 31, 2003 on terms and conditions substantially
similar to those contained in the Celanese Agreement.
SECTION 5.23. Uncashed Cheques. Parent understands and agrees that to the
extent any cheques (the "Unpaid SAP Cheques") are drawn prior to the Closing on
the account of the Company, SAP Thai or otherwise relating to the SAP Business
and such cheques are presented for payment following the Closing (i) none of the
Purchaser, its Affiliates, the Company, SAP Thai or the SAP Business shall have
any obligation, responsibility or liability for any such Unpaid SAP Cheques,
except to the extent that (i) Parent and its Affiliates have delivered any cash
to the Purchaser at Closing or (ii) Parent has permitted the Company or SAP Thai
to retain any cash at Closing, in each case, for the purpose of satisfying such
unpaid SAP Cheques and (ii) Parent and its Affiliates shall be responsible for
all such Unpaid SAP Cheques and shall indemnify the Purchaser, the Company, SAP
Thai or any of their Affiliates for any Losses or Liabilities incurred by them
as a result of the Unpaid SAP Cheques, except to the extent that (i) Parent and
its Affiliates have delivered any cash to the Purchaser at Closing or (ii)
Parent has permitted the Company or SAP Thai to retain any cash at Closing, in
each case, for the purpose of satisfying such unpaid SAP Cheques.
SECTION 5.24. Access to Insurance. Notwithstanding anything to the contrary
contained in this Agreement, to the extent that the Purchaser, the Company, SAP
Thai or the SAP Business suffer or incur any Losses or Liabilities (a "Loss
Event") by reason of, or arising out of, any action, inaction, event, condition,
liability or obligation of the Company, SAP Thai, the Sellers or the SAP
Business which occurred or existed prior to the Closing, or by reason of or in
connection with any claim or cause of action of any third party relating to the
conduct of the SAP Business prior to Closing, then upon receipt of notice from
the Purchaser or one of its Affiliates of such Loss Event, Parent shall, and
shall cause its Affiliates to, promptly (i) use all reasonable efforts to access
any of its (or any of its Affiliates) applicable insurance policies on behalf of
the Purchaser, the Company, SAP Thai or the SAP Business, as applicable, in
connection with such Loss Event in a manner that is consistent with the terms of
such policies, all such reasonable efforts to include, without limitation,
Parent (or any of its Affiliates) using all reasonable efforts to pursue any
claims denied under such applicable insurance policies and (ii) indemnify the
Purchaser, the Company, SAP Thai or the SAP Business, as applicable, for any
such Loss Event up to an amount which is equal to the aggregate amount of any
proceeds actually received by Parent (or any of its Affiliates) under any and
all of its applicable insurance policies in connection with such Loss Event;
provided that under no circumstances whatsoever shall Parent or its Affiliates
have any obligation to indemnify the Purchaser or its Affiliates pursuant to
this provision of the Agreement by reason of any denial under the policies of
all or any portion of the claim or claims submitted under the policies by Parent
or their Affiliates. Any reasonable out-of-pocket expenses incurred by Parent in
pursuing any claims denied under the applicable policies shall promptly be
reimbursed by the Purchaser.
SECTION 5.25. Patent Opinions. Following the Closing, the Purchaser shall
permit Parent and its Affiliates to rely on the SAP Opinions as reasonably
necessary for the purpose of defending any claims of patent infringement, and
the Purchaser shall provide the Patent Opinions to Parent and its Affiliates as
reasonably requested by Parent for such purpose.
SECTION 5.26. Thai Facility. At the Closing, Parent shall cause the
delivery of the Thai Facility to the Purchaser, which Thai Facility shall be
"Mechanically Complete" as defined in Exhibit 5.26 attached hereto.
SECTION 5.27. * Obligations. Promptly following the date hereof, Parent and
the Purchaser will undertake to satisfy their respective * obligations as
specifically described in, and in the manner contemplated by, Exhibit 5.27
attached hereto.
SECTION 5.28. * Assistance Grants. Parent understands and agrees that (i)
as a result of the execution of this Agreement and the transactions contemplated
hereby, all or a portion of the financial assistance granted by certain
Governmental Authorities to the SAP Business pursuant to the * Assistance Grants
may become immediately due and payable to such Governmental Authorities and (ii)
in the event any such amounts become due and payable to such Governmental
Authorities pursuant to the * Assistance Grants solely as a result of the
entering
into of this Agreement or the consummation of the transactions contemplated
hereby, (x) Parent will be responsible for promptly paying such amounts to the
applicable Governmental Authority or (y) Parent will indemnify the Purchaser and
its Affiliates from any Losses or Liabilities incurred as a result of the
failure of Parent to pay such amounts that become due and payable as described
in clause (ii) above.
SECTION 5.29. Thai Facility Construction Contracts. Following the Closing,
the Purchaser shall permit Parent and its Affiliates to rely on the Thai
Facility Construction Contracts as reasonably necessary for the purpose of
pursuing any rights and remedies thereunder against the counter-parties thereto,
to the extent the pursuit of such rights and remedies is necessary to satisfy
any obligations and Liabilities of Parent and its Affiliates to the Purchaser
and its Affiliates under this Agreement or the transactions contemplated hereby
including, without limitation, pursuant to Section 5.26 hereof (it being
understood that Parent and its Affiliates shall transfer to Purchaser and its
Affiliates any recoveries and awards resulting from the pursuit of such rights
and remedies to the extent that such recoveries and awards exceed (i) the
aggregate amounts actually paid by Parent and its Affiliates to Purchaser and
its Affiliates to satisfy the obligations and Liabilities described above, and
(ii) any out-of-pocket costs and amounts incurred by Parent and its Affiliates
in pursuing such rights and remedies, including, without limitation, legal fees
and other costs of the suit; provided that Parent and its Affiliates shall not
be entitled to any such costs and amounts to the extent Parent has not
previously paid to Purchaser and its Affiliates all amounts owing to satisfy the
obligations described above).
SECTION 5.30. Further Action. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things necessary, proper or advisable under applicable Law,
and execute and deliver such documents and other papers, as may be necessary to
carry out the provisions of this Agreement and consummate and make effective the
transactions contemplated by this Agreement.
ARTICLE VI
EMPLOYEE MATTERS
SECTION 6.01. Transferred Employees. Each hourly and salaried employee of
the Company and SAP Thai (a list of which employees is attached hereto at
Section 6.01 of the Disclosure Schedule) who is employed with the Purchaser or
its Affiliates immediately following the Closing shall hereinafter be referred
to as a "Transferred Employee".
SECTION 6.02. Severance Obligations. The Sellers and the Purchaser agree
that the transactions contemplated by this Agreement shall not constitute a
severance of employment of any Transferred Employees or U.K. Designated
Employees (as defined below) under any severance plan, program or arrangement of
any Seller, SAP Thai or the Company and that such employees shall be deemed to
have continuous and uninterrupted employment before and immediately after the
Closing. If any Transferred Employee or U.K. Designated Employee incurs or is
deemed pursuant to Law or any severance plan, program or arrangement to have
incurred a severance of employment before the Closing, then Parent shall be
responsible for all severance obligations with respect to each Transferred
Employee and U.K. Designated Employee. The Purchaser shall be responsible for
any severance obligations incurred pursuant to any severance plan, program,
arrangement or agreement of the Company, SAP Thai or any Other Seller with
respect to the termination of a Transferred Employee or a U.K. Designated
Employee on or after the Closing. Except as provided in this Section 6.02,
Parent agrees, pursuant to Section 9.02, to indemnify and hold harmless the
Purchaser against any severance claim and against any loss, damage, liability or
expense, including attorney fees, incurred in connection with any claim for
severance benefits brought by any employees or former employees of Parent, the
Company, SAP Thai or the Other Sellers.
SECTION 6.03. (a) Employee Benefit Plans. For a period of one year after
the Closing Date, the Purchaser shall provide the Transferred Employees who are
employed by the Company within the United States (the "U.S. Transferred
Employees") with a level of employee benefit plans and arrangements
substantially comparable in the aggregate to the level of employee benefits
provided to similar situated employees of the Purchaser.
To the extent that service is relevant for purposes of eligibility,
participation, vesting or benefit accrual under any employee benefit plan,
program or arrangement established, maintained or contributed to by the
Purchaser or any of its Affiliates (excluding benefit accrual under the
Purchaser Defined Benefit Plan), U.S. Transferred Employees shall be credited
for service prior to the Closing with the Sellers or the Company to the extent
that such service was recognized under a comparable employee benefit plan,
program or arrangement under which such applicable U.S. Transferred Employee was
participating immediately prior to the Closing; provided, however, that such
crediting of service does not result in the duplication of benefits or an
unintended windfall with respect to the accrual of benefits.
(b) Medical, Dental and Life Insurance Plans. Effective as of the Closing
Date, each U.S. Transferred Employee and their eligible dependents who are
participating in the Sellers' welfare benefit plans shall become entitled to
participate in the medical, dental, life insurance and other welfare benefit
plans sponsored by the Purchaser or its Affiliates on the Closing Date. To the
extent that any welfare benefit plan in which any U.S. Transferred Employee
participates after the Closing Date (i) imposes any pre-existing condition
limitation, such condition shall be waived or (ii) has a deductible or requires
a co-payment by the U.S. Transferred Employee that is subject to maximum
out-of-pocket limitation, each U.S. Transferred Employee will receive credit for
any co-payments and deductibles for any costs paid during the portion of the
relevant plan year or other period preceding the Closing in which the Closing
Date occurs which have been submitted to the plan administrator of the
Purchaser's welfare benefit plans as of the 90th day following the Closing Date.
The Purchaser shall provide notification to all U.S. Transferred Employees if
any co-payments or deductibles for any period preceding the Closing must be
submitted to the plan administrator of the Purchaser's welfare benefit plans as
of the 90th day following the Closing Date. The Purchaser shall not be
responsible for medical, dental and other welfare benefit claims incurred, but
not paid, in the ordinary course on or prior to the Closing Date with respect to
U.S. Transferred Employees, which shall remain the responsibility of the
Sellers.
(c) COBRA. The Purchaser shall assume all responsibility for providing
benefits required under Part 6 of Title I of ERISA ("COBRA Benefits") in respect
of qualifying events occurring after the Closing for U.S. Transferred Employees
and their qualified beneficiaries.
(d) Vacation. The Purchaser shall provide, without duplication of benefits,
all Transferred Employees and U.K. Designated Employees who were employees of
the Sellers, the Company or SAP Thai immediately prior to the Closing Date with
paid vacation time rather than cash in lieu of vacation time for all vacation
earned and unpaid through the Closing Date.
(e) Miscellaneous. No employee or any other Person (except the parties to
this Agreement) shall be entitled to assert any claim against the Purchaser, the
Company, SAP Thai or any of the Sellers relating to the employment,
compensation, employee benefits or benefit plans or programs based on or arising
from any provisions of this Agreement.
SECTION 6.04. Pension Plans. Effective as of the Closing Date, the U.S.
Transferred Employees shall be considered terminated participants in accordance
with the terms of the Parent Savings Plan (the "Seller Defined Contribution
Plan") and the Parent Pension Plan (the "Seller Defined Benefit Plan"; and
together with the Seller Defined Contribution Plan, the "Seller Pension Plans")
and as soon as administratively practical following the Closing Date, Parent
shall take all such action as may be required to achieve this result, including,
without limitation, advising participants in the Seller Pension Plans who are
U.S. Transferred Employees of their right to elect to receive a rollover
distribution of their individual nonforfeitable account balances and
nonforfeitable accrued benefits, respectively, in accordance with the terms of
the Seller Pension Plans by reason of the transactions contemplated by this
Agreement, which distribution or distributions may to the extent permitted by
Law be transferred by the participant to the Purchaser Salaried Employees'
Savings Plan (the "Purchaser Defined Contribution Plan") in a directed rollover;
provided, however, that the Seller Pension Plans shall not be required to permit
distributions or transfers by U.S. Transferred Employees to the extent that such
distributions or transfers would adversely affect the qualified status of the
Seller Pension Plans. Parent and the Purchaser may agree to allow participants
to elect direct rollover distributions from the Seller Pension Plans to the
Purchaser Defined Contribution Plan. U.S. Transferred Employees who are
participants in the Seller Pension Plans shall be 100% vested in their accrued
benefits and individual account balances under the Seller Pension Plans as of
the Closing Date. Effective as of the Closing Date, the Purchaser shall amend
the Purchaser Defined Contribution Plan to the extent necessary to enable U.S.
Transferred
Employees who were participants in the Seller Pension Plans to elect
rollover distributions, which in the discretion of the plan administrator for
the Purchaser Defined Contribution Plan, may include any outstanding loan notes
from the Seller Defined Contribution Plan in accordance with Section 402 of the
Code. In order to rollover an outstanding loan note, U.S. Transferred Employees
shall be required to execute (i) an acknowledgment that the Purchaser Defined
Contribution Plan will be substituted for the Seller Defined Contribution Plan
as the obligee of the loan note, (ii) a payroll authorization form and (iii) any
other forms deemed necessary by the plan administrator for the Purchaser Defined
Contribution Plan. No other assets shall be transferred from the Seller Pension
Plans to the Purchaser Defined Contribution Plan other than as specified herein.
All directed rollovers between the Seller Pension Plans and the Purchaser
Defined Contribution Plan will be in the form of cash. Service of the U.S.
Transferred Employees prior to the Closing Date which was recognized under the
Seller Pension Plans shall be credited to the U.S. Transferred Employees for
purposes of eligibility and vesting under the Purchaser Defined Contribution
Plan.
SECTION 6.05. U.S. Employee Information. No later than ten (10) calendar
days after the Closing Date, Parent shall furnish to the Purchaser the following
information with respect to each U.S. Transferred Employee, as applicable:
(a) social security number;
(b) years and months of service as of the Closing Date; and
(c) base salary and bonus for the three calendar years
immediately preceding the Closing Date and current base salary.
SECTION 6.06. Workers' Compensation Obligation for U.S. Transferred
Employees. With respect to U.S. Transferred Employees, the Sellers shall retain
and shall assume and be responsible for any and all workers' compensation
benefits in connection with claims which are incurred on or before the Closing
Date, and the Purchaser shall assume, bear and discharge all liabilities for
workers' compensation benefits in connection with claims incurred after the
Closing Date.
SECTION 6.07. Provisions Relating to U.K. Employees. (a) Each employee of
the Company and the Sellers with respect to the SAP Business whose normal place
of work is the United Kingdom who is listed on Section 6.07 of the Disclosure
Schedule shall hereinafter be referred to as a "U.K. Designated Employee".
(b) The Purchaser acknowledges that the Acquired Rights Directive (77/187
EEC) as enacted in the Member States of the European Union and similar Laws in
other jurisdictions which safeguard the rights of employees in transfers of
undertakings, businesses or parts of businesses (collectively, the "Transfer
Laws") may operate to automatically transfer all or some of the U.K. Designated
Employees to the Purchaser. If any contract of employment of a Person who is not
a U.K. Designated Employee of the Purchaser has effect as if originally made
between the Sellers and such Person as a result of the application of the
Transfer Laws: (i) then such Seller may, within thirty (30) days of becoming
aware of the application of the Transfer Laws to such contract, give notice to
such Person to terminate such contract and (ii) any losses arising out of or in
connection with such contract to the date of such termination shall be assumed
or retained by the Sellers and shall be Excluded Liabilities.
(c) The Sellers and the Purchaser shall comply with their respective
obligations under the Transfer Laws, including, without limitation, the
provision of information to and/or consultation with representatives of the U.K.
Designated Employees in relation to the transactions contemplated under this
Agreement whether pursuant to the Transfer Laws or any other legal requirement
as enacted in the Member States of the European Union and similar Laws in other
jurisdictions or any collective agreement or otherwise.
(d) The employment of each U.K. Designated Employee shall, at the Closing
Date, be transferred to the Purchaser in accordance with the Transfer of
Undertakings (Protection of Employment) Regulations 1981 (as amended) (the "U.K.
Regulations"), which are in force in the United Kingdom to implement the
Acquired Rights Directive in the United Kingdom.
(e) Effective as of the Closing Date, the U.K. Designated Employees shall:
(i) be offered membership in a retirement benefits scheme nominated by the
Purchaser (the "Purchaser's Scheme") subject to satisfying its eligibility
provisions and (ii) be permitted to transfer the value of their past service
pension rights secured under the pension arrangements operated by the Sellers to
the Purchaser's Scheme, provided that the exempt approved status of the
Purchaser's Scheme under the Income and Corporation Taxes Act 1988 is not
adversely affected by such transfer.
SECTION 6.08. Provisions Relating to Thai Employees. (a) Each Transferred
Employee who is employed by SAP Thai within Thailand (and who is listed on
Section 6.01 of the Disclosure Schedule) shall hereinafter be referred to as
a"Thai Transferred Employee".
(b) The Sellers and the Purchaser shall comply with their respective
obligations under any Laws relating to the transfer of employment of the Thai
Transferred Employees.
(c) The employment of each Thai Transferred Employee shall, at the Closing
Date, be transferred to the Purchaser in accordance with any regulations
regarding such transfer which are in force in Thailand.
SECTION 6.09. Retained Obligations of Parent. Parent expressly agrees to
retain (i) all obligations or Liabilities with respect to the employees who are
not Transferred Employees or U.K. Designated Employees and (ii) any obligations
or Liabilities of Parent or any of its Affiliates with respect to any former
employee of the SAP Business or as a result of actions taken by, or omissions
of, Parent or any of its Affiliates prior to the Closing Date with respect to
any Transferred Employee or U.K. Designated Employee.
SECTION 6.10 Employee Stock Options. (a) Effective on or prior to the
Closing Date, Parent shall cause each vested and unvested stock option to
purchase shares of Parent common stock (each a "Stock Option") that was granted
to Transferred Employees and U.K. Designated Employees pursuant to the Stock
Option Plans (other than unvested stock options granted pursuant to the Chemdal
U.K. 1995 Share Option Scheme) or otherwise that remains outstanding on the
Closing Date to become fully vested and exercisable and to remain exercisable
for a period of at least 90 days following the Closing Date; provided, however,
that such 90 day period shall not extend beyond the term of the Stock Option as
set forth in the relevant Stock Option Plan or stock option agreement.
(b) To the extent any required U.K. Inland Revenue approvals can reasonably
be obtained prior to the Closing Date that will permit any and all amendments to
the Chemdal U.K. 1995 Share Option Scheme necessary to provide for the full
vesting and immediate exercise of all outstanding Stock Options granted
thereunder, then, effective on or prior to the Closing Date, Parent shall cause
each outstanding Stock Option that was granted to Transferred Employees and U.K.
Designated Employees pursuant to the Chemdal U.K. 1995 Share Option Scheme to
become fully vested and immediately exercisable and to remain exercisable for a
period of at least 90 days following the Closing Date; provided, however, that
such 90 day period shall not extend beyond the term of the Stock Option as set
forth in the Chemdal U.K. 1995 Share Option Scheme or the related stock option
agreement. In the event that such U.K. Inland Revenue approvals cannot be
obtained at least 3 Business Days prior to the Closing Date, Parent may, in its
discretion:
(i) take such action as may be necessary to cause each Stock Option
granted pursuant to the Chemdal U.K. 1995 Share Option Scheme that is held
by a Transferred Employee or U.K. Designated Employee and that remains
outstanding on the Closing Date (an "Unvested Stock Option") to be
automatically replaced effective as of the Closing Date with a stock option
granted pursuant to another Stock Option Plan or any successor plan (a
"Substituted Stock Option"). Such Substituted Stock Option shall be subject
to the same terms and conditions as the replaced Stock Option granted
pursuant to the Chemdal U.K. 1995 Share Option Scheme (including, without
limitation, the exercise price of such Stock Option); provided, however,
that such Substituted Stock Option shall be fully vested and immediately
exercisable as of the Closing Date and shall remain exercisable for a
period of at least 90 days following the Closing Date. As promptly as
practicable after the Closing Date, Parent shall issue to each holder of a
Substituted Stock Option a document evidencing such Substituted Stock
Option; or
(ii) within 3 Business Days following the Closing Date, pay a special
cash bonus to each Transferred Employee or U.K. Designated Employee who
holds an Unvested Stock Option in an amount equal to the product of (y) the
number of shares of Parent common stock subject to such Unvested Stock
Option and (z) the excess, if any, of the closing price on the New York
Stock Exchange of Parent common stock on the last trading day immediately
prior to the Closing Date over the exercise price per share of Parent
common stock subject to such Unvested Stock Option.
(c) Parent shall use all reasonable efforts to cause each holder of an
Unvested Stock Option to consent to the cancellation of such Unvested Stock
Option in consideration of the payment or the Substituted Stock Option, as
applicable, and as provided for in subparagraph (b)(i) and (ii) above and
Parent may require such consent as a condition to such payment or
Substituted Stock Option. The Company, SAP Thai, the Sellers and the
Purchaser shall cooperate to take all such action as may be necessary to
carry out the terms of Section 6.10.
ARTICLE VII
TAX MATTERS
SECTION 7.01. Indemnity. (a) Parent agrees to indemnify on an After-Tax
Basis and hold harmless the Purchaser, each of its Subsidiaries, the Company and
SAP Thai against the following Taxes and against any loss, damage, liability or
expense, including reasonable costs for in-house or outside attorneys,
accountants and other consultants, incurred in contesting or otherwise in
connection with any such Taxes: (i) Taxes imposed on the Company, SAP Thai or
attributable to the SAP Assets or the SAP Business with respect to taxable
periods ending on or before the Closing Date; (ii) with respect to taxable
periods beginning before the Closing Date and ending after the Closing Date,
Taxes imposed on the Company, SAP Thai or attributable to the SAP Assets or the
SAP Business which are allocable, pursuant to Section 7.01(b), to the portion of
such period ending on the Closing Date; (iii) Taxes imposed on the Seller, the
Other Sellers, any of their Subsidiaries or any member of any affiliated group
with which the Company or SAP Thai files or has filed a Tax return on a
consolidated, unitary or combined basis for a taxable period (or portion of a
taxable period) ending on or before the Closing Date; (iv) Taxes imposed on the
Purchaser, any of its Subsidiaries, the Company or SAP Thai as a result of any
breach of warranty or misrepresentation under Section 3.23; and (v) Taxes
resulting from any election described in Section 7.07 of this Agreement.
(b) In the case of Taxes that are payable with respect to a taxable period
that begins before the Closing Date and ends after the Closing Date, the portion
of any such Tax that is allocable to the portion of the period ending on the
Closing Date shall be:
(i) in the case of Taxes that are either (x) based upon or related to
income or receipts or (y) imposed in connection with any sale or other
transfer or assignment of property (real or personal, tangible or
intangible) (other than conveyances pursuant to this Agreement, as provided
under Section 7.06), deemed equal to the amount which would be payable if
the taxable year ended with the Closing Date; and
(ii) in the case of Taxes imposed on a periodic basis with respect to
the assets of the Company, SAP Thai or the SAP Assets or that are otherwise
measured by the level of any item, deemed to be the amount of such Taxes
for the entire period, multiplied by a fraction the numerator of which is
the number of calendar days in the period ending on the Closing Date and
the denominator of which is the number of calendar days in the entire
period.
(c) Refunds of any Taxes paid by Parent or its Affiliates by or on behalf
of the Company or SAP Thai relating to any taxable period, or any portion of any
taxable period, ending on or prior to the Closing Date, shall be for the account
of Parent and its Affiliates (and will promptly be paid by Purchaser and its
Affiliates, if received by them, to Parent), except to the extent that such
refunds were reflected in the Statement of Working Capital.
SECTION 7.02. Returns and Payments. (a) From the date of this Agreement
through and after the Closing Date, Parent shall prepare and file or otherwise
furnish in proper form to the appropriate governmental or taxing authority (or
cause to be prepared and filed or so furnished) in a timely manner all Tax
returns, reports and forms ("Returns") relating to the Company, SAP Thai, the
SAP Assets or the SAP Business that are due on or before
or relate to any taxable period ending on or before the Closing Date (and the
Purchaser shall do the same for any Returns for which it or the Company or SAP
Thai are responsible for any taxable period that ends after the Closing Date).
Returns of the Company or SAP Thai not yet filed for any taxable period that
begins before the Closing Date shall be prepared in a manner consistent with
past practices employed with respect to the Company or SAP Thai (except to the
extent counsel for Parent or the Purchaser renders a legal opinion that there is
no reasonable basis in Law therefor or determines that a Return cannot be so
prepared and filed without being subject to penalties). With respect to any
Return required to be filed by the Purchaser or Parent with respect to the
Company or SAP Thai or attributable to the SAP Assets or the SAP Business, and
as to which an amount of Tax is allocable to the other party under Section
7.01(b), the filing party shall provide the other party and its authorized
representatives with a copy of such completed Return and a statement certifying
the amount of Tax shown on such Return that is allocable to such other party
pursuant to Section 7.01(b), together with appropriate supporting information
and schedules, at least 20 Business Days prior to the due date (including any
extension thereof) for the filing of such Return. Such other party and its
authorized representatives shall have the right to review and comment on such
Return and statement prior to the filing of such Return, and the reasonable
comments of such other party and its authorized representatives shall be
considered by the filing party in good faith.
(b) Parent shall pay or cause to be paid when due and payable all Taxes
with respect to the Company or SAP Thai or attributable to the SAP Assets or the
SAP Business for any taxable period ending on or before the Closing Date, and
the Purchaser shall so pay or cause to be paid Taxes with respect to the Company
or SAP Thai, or for which the Purchaser is responsible in respect of the SAP
Business or the SAP Assets, for any taxable period ending after the Closing Date
(subject to the Purchaser's right of indemnification from Parent by the date set
forth in Section 7.04 for Taxes attributable to the portion of any Tax period
that includes the Closing Date pursuant to Sections 7.01(a) and 7.01(b)).
SECTION 7.03. Contests. (a) After the Closing, the Purchaser shall promptly
notify Parent in writing of any notice received by the Purchaser or any of its
Subsidiaries of a proposed assessment or claim in an audit or administrative or
judicial proceeding of the Purchaser or any of its Subsidiaries, or of the
Company or SAP Thai, which, if determined adversely to the taxpayer, would be
grounds for indemnification under this Article VII. If, following the receipt by
the Purchaser or any of its Subsidiaries of notice of such a proposed assessment
or claim, the Purchaser fails to give Parent the prompt notice required by the
preceding sentence of this Section 7.03, then (i) if Parent is precluded by such
failure from contesting the asserted Tax liability in question, Parent shall not
have any obligation to indemnify the Purchaser under this Article VII for any
loss or damage arising out of such asserted Tax liability, and (ii) if Parent is
not precluded from contesting the asserted Tax liability in question, but such
failure results in a monetary detriment to Parent, any amount which Parent
otherwise would be required to pay the Purchaser pursuant to this Article VII
with respect to such liability shall be reduced by the amount of such detriment.
(b) In the case of an audit or administrative or judicial proceeding that
relates to periods ending on or before the Closing Date, provided that Parent
acknowledges in writing its liability under this Agreement to hold the Purchaser
and its Subsidiaries and the Company and SAP Thai harmless against the full
amount of any adjustment which may be made as a result of such audit or
proceeding that relates to periods ending on or before the Closing Date (or, in
the case of any taxable year that includes the Closing Date, against an
adjustment allocable under Section 7.01(b) to the portion of such year ending on
or before the Closing Date), Parent shall have the right at its expense to
participate in and control the conduct of such audit or proceeding but only to
the extent that such audit or proceeding relates solely to a potential
adjustment for which Parent has acknowledged its liability; the Purchaser also
may participate in any such audit or proceeding and, if Parent does not assume
the defense of any such audit or proceeding, the Purchaser may defend the same
in such manner as it may deem appropriate, including, without limitation,
settling such audit or proceeding after giving five days' prior written notice
to Parent setting forth the terms and conditions of settlement. In the event
that issues relating to a potential adjustment for which Parent has acknowledged
its liability are required to be dealt with in the same proceeding as separate
issues relating to a potential adjustment for which the Purchaser would be
liable, the Purchaser shall have the right, at its expense, to control the audit
or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which
both Parent (as evidenced by its acknowledgment under this Section 7.03) and any
of the Purchaser, one of its Subsidiaries or the Company or SAP Thai could be
liable, (i) each party may participate in the audit or proceeding and (ii) the
audit or proceeding shall be controlled by that party which would bear the
burden of the greater portion of the sum of the
adjustment and any corresponding adjustments that may reasonably be anticipated
for future Tax periods. The principle set forth in the immediately preceding
sentence shall govern also for purposes of deciding any issue that must be
decided jointly (including, without limitation, choice of judicial forum) in
situations in which separate issues are otherwise controlled under this Article
VII by the Purchaser and Parent.
(d) Neither the Purchaser nor Parent shall enter into any compromise or
agree to settle any claim pursuant to any Tax audit or proceeding which would
adversely affect the other party for such year or a subsequent year without the
written consent of the other party, which consent may not be unreasonably
withheld. The Purchaser and Parent agree to cooperate in the defense against or
compromise of any claim in any audit or proceeding.
SECTION 7.04. Time of Payment. Payment by Parent of any amounts due under
this Article VII in respect of Taxes shall be made (i) at least three Business
Days before the due date of the applicable estimated or final Return required to
be filed by the Purchaser on which is required to be reported income for a
period ending after the Closing Date for which Parent is responsible under
Sections 7.01(a) and 7.01(b) without regard to whether the Return shows overall
net income or loss for such period and (ii) within three Business Days following
an agreement between Parent and the Purchaser that an indemnity amount is
payable, an assessment of a Tax by a taxing authority, or a "determination" as
defined in Section 1313(a) of the Code. If liability under this Article VII is
in respect of costs or expenses other than Taxes, payment by Parent of any
amounts due under this Article VII shall be made within five Business Days after
the date when Parent has been notified by the Purchaser that Parent has a
liability for a determinable amount under this Article VII and is provided with
calculations or other materials supporting such liability.
SECTION 7.05. Cooperation and Exchange of Information. Parent and the
Purchaser will provide each other with such cooperation and information as
either of them reasonably may request of the other in filing any Return, amended
Return or claim for refund, determining a liability for Taxes or a right to a
refund of Taxes, participating in or conducting any audit or other proceeding in
respect of Taxes or making representations to or furnishing information to
parties subsequently desiring to purchase the Company or SAP Thai or any part of
the SAP Business from the Purchaser. Such cooperation and information shall
include providing copies of relevant Returns or portions thereof, together with
accompanying schedules, related work papers and documents relating to rulings or
other determinations by Tax authorities. Parent and the Purchaser shall each
make its employees available on a basis mutually convenient to both parties to
provide explanations of any documents or information provided hereunder. Each of
Parent and the Purchaser shall retain all Returns, schedules and work papers,
records and other documents in its possession relating to Tax matters of the
Company or SAP Thai or of the SAP Assets or SAP Business, for each taxable
period first ending after the Closing Date and for all prior taxable periods
until the later of (i) the expiration of the statute of limitations of the
taxable periods to which such Returns and other documents relate, without regard
to extensions except to the extent notified by the other party in writing of
such extensions for the respective Tax periods or (ii) six years following the
due date (without extension) for such Returns. Any information obtained under
this Section 7.05 shall be kept confidential except as may be otherwise
necessary in connection with the filing of Returns or claims for refund or in
conducting an audit or other proceeding.
SECTION 7.06. Conveyance Taxes. The Purchaser and Parent agree to share
equally any sales, use, transfer, value added, stamp, stock transfer, real
property transfer or gains and any similar Taxes, and any recording,
registration and other fees, incurred as a result of the transactions
contemplated hereby.
SECTION 7.07. Section 338 Election. (a) Parent agrees to join the Purchaser
in making an election under Section 338(g) and 338(h)(10) of the Code, and under
any comparable provisions of state, local or non-U.S. Tax Law, with respect to
the sale of the Company to the Purchaser. On or prior to the Closing Date,
Parent shall duly execute (or cause to be duly executed by the appropriate
Subsidiary or Affiliate), and shall deliver to the Purchaser, IRS Form 8023 (or
successor form), and any comparable forms that are required by applicable state,
local or non-U.S. Tax Laws, for purposes of making the elections contemplated by
this Section 7.07. Parent shall provide the Purchasers with reasonable
cooperation in the preparation and filing of any and all such elections (and in
taking all steps necessary to effectuate the same). In accordance with Section
7.01 hereof, Parent agrees to indemnify the Purchaser, its Subsidiaries, the
Company or SAP Thai against all Taxes relating to such elections.
(b) For purposes of making the elections required by paragraph (a) of this
Section 7.07, the Purchaser shall determine the value of the tangible and
intangible assets of the Company and shall provide Parent with a proposed
allocation of the Purchaser's "adjusted grossed-up basis" in the Company Shares
(within the meaning of the Treasury Regulations under Section 338 of the Code)
to such assets within 15 days of the due date for the filing of the election
under Section 338(g) and Section 338(h)(10) of the Code with respect to the sale
of the Company Shares to the Purchaser (the "Allocation"). For purposes of
allocating the "deemed selling price" (within the meaning of the Treasury
Regulations under Section 338 of the Code) among the assets of the Company, (i)
if all disputes regarding the proposed Allocation are resolved by the parties on
or prior to the due date for the filing of the election under Section 338(g) and
Section 338(h)(10) of the Code with respect to the sale of the Company Shares to
the Purchaser, then the agreed-to Allocation shall be binding upon the Purchaser
and Parent, and (ii) if the parties are unable to resolve all disputes regarding
the proposed Allocation, then the Allocation shall be considered binding upon
the Purchaser and Parent with respect to any items which are not in dispute, and
each of Purchaser and Parent shall be responsible for determining its treatment
of any disputed items. In any case, appropriate adjustments shall be made to the
Allocation to reflect any Purchase Price adjustments pursuant to this Agreement
or adjustments required by Law.
SECTION 7.08. Miscellaneous. (a) Parent and the Purchaser agree to treat
all payments made by either of them to or for the benefit of the other
(including any payments to the Company or SAP Thai) under this Article VII,
under other indemnity provisions of this Agreement and for any
misrepresentations or breaches of warranties or covenants as adjustments to the
Purchase Price or as capital contributions for Tax purposes, and further agree
that such treatment shall govern for purposes hereof except to the extent that
the Laws of a particular jurisdiction provide otherwise, in which case such
payments shall be made in an amount sufficient to indemnify the relevant party
on an After-Tax Basis.
(b) Any Tax sharing agreement or arrangement between Parent and any of its
Subsidiaries, on the one hand, and the Company or SAP Thai, on the other hand,
shall be terminated immediately prior to the Closing.
(c) Notwithstanding any provision in this Agreement to the contrary, the
obligations of Parent to indemnify and hold harmless the Purchaser, its
Subsidiaries, the Company and SAP Thai pursuant to this Article VII, and the
representations and warranties contained in Section 3.23, shall terminate at the
close of business on the 120th day following the expiration of the applicable
statute of limitations with respect to the Tax liabilities in question (giving
effect to any waiver, mitigation or extension thereof).
(d) From and after the date of this Agreement, Parent shall not without the
prior written consent of the Purchaser (which may, in its sole and absolute
discretion, withhold such consent) change, make or revoke, or cause or permit to
be changed, made or revoked, any Tax election, adopt or change, or cause to
permit to be adopted or changed, any method of Tax accounting, or settle or
compromise, or cause or permit to be settled or compromised, any Tax liability
that would materially affect the Company, SAP Thai, the SAP Assets or the SAP
Business.
(e) Each of Parent and the Purchaser shall be entitled to recover
professional fees and related costs that it may reasonably incur to enforce the
provisions of this Article VII.
(f) Parent shall cause the Company to deliver to the Purchaser at the
Closing a statement pursuant to Regulation Section 1.897-2(h), in form and
substance satisfactory to the Purchaser, duly executed and acknowledged,
certifying that the Company Shares are not a U.S. real property interest within
the meaning of Section 897(c)(i) of the Code, and Parent or the Other Sellers
shall provide the Purchaser with statements, duly executed and acknowledged,
certifying as to the facts that exempt the sale of SAP Thai and the SAP Assets
from withholding in accordance with Section 1445 of the Code.
ARTICLE VIII
CONDITIONS TO CLOSING
SECTION 8.01. Conditions to Obligations of Parent. The obligations of
Parent to consummate the transactions contemplated by this Agreement shall be
subject to the fulfilment, at or prior to the Closing, of each of the following
conditions:
(a) Representations and Warranties. Each of the representations and
warranties of the Purchaser contained in this Agreement shall have been true and
correct in all material respects when made and shall be true and correct in all
material respects as of the Closing Date, with the same force and effect as if
made as of the Closing Date (other than such representations and warranties as
are made as of another date, which shall be true and correct in all material
respects as of such date), except where the failure to be so true and correct
would not materially and adversely effect the consummation of the Closing, or
otherwise prevent the Purchaser from performing its material obligations under
this Agreement, and Parent shall have received a certificate from the Purchaser
to such effect signed by a duly authorized officer thereof;
(b) Covenants. Each of the covenants and agreements contained in this
Agreement to be complied with by the Purchaser on or before the Closing shall
have been complied with in all material respects, and Parent shall have received
a certificate from the Purchaser to such effect signed by a duly authorized
officer thereof;
(c) HSR Act. Any waiting period (and any extension thereof) under the HSR
Act or under the applicable merger control or competition Laws of Germany and
the United Kingdom applicable to the purchase of the Shares and the SAP Assets
contemplated hereby shall have expired or shall have been terminated;
(d) No Proceeding or Litigation. No Action shall have been commenced by or
before any Governmental Authority against either the Sellers or the Purchaser,
seeking to restrain or materially and adversely alter the transactions
contemplated by this Agreement which, in the reasonable, good faith
determination of Parent, is likely to render it impossible or unlawful to
consummate such transactions; provided, however, that the provisions of this
Section 8.01(d) shall not apply if Parent has directly or indirectly solicited
or encouraged any such Action;
(e) Resolutions. Parent shall have received a true and complete copy,
certified by the General Counsel of the Purchaser, of the written approval of
the Board of Directors of the Purchaser evidencing its authorization of the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby;
(f) Incumbency Certificate. Parent shall have received a certificate,
signed by the General Counsel of the Purchaser, certifying the names and
signatures of the employees of the Purchaser authorized to sign this Agreement
and the other documents to be delivered hereunder and to bind the Purchaser
hereby;
(g) Stockholder Approval. This Agreement shall have been approved and
adopted by the affirmative vote of the stockholders of Parent in accordance with
applicable Law and Parent's Restated Certificate of Incorporation and By-Laws;
(h) Transition Services Agreement. The Purchaser shall have executed and
delivered to Parent the Transition Services Agreement;
(i) SAP Subleases. The Purchaser or one of its designated Affiliates shall
have executed and delivered to Parent the SAP Subleases;
(j) CETCO Supply Agreement. The Purchaser shall have executed and delivered
to Parent the CETCO Supply Agreement;
(k) ION Exchange License Agreement. The Purchaser shall have executed and
delivered to Parent the ION Exchange License Agreement;
(l) Certain Rebates. The Purchaser shall have paid Parent in full for the
Rebates;
(m) Acrylic Acid Supply Agreement. The Purchaser shall have executed and
delivered to Chemdal U.K. the Acrylic Acid Supply Agreement, together with the
related release and novation described in Section 5.15 hereof; and
(n) License Agreement. The Purchaser shall have executed and delivered to
Parent the License Agreement.
SECTION 8.02. Conditions to Obligations of the Purchaser. The obligations
of the Purchaser to consummate the transactions contemplated by this Agreement
shall be subject to the fulfilment, at or prior to the Closing, of each of the
following conditions:
(a) Representations and Warranties. Each of the representations and
warranties of the Sellers contained in this Agreement shall have been true
and correct in all respects when made and shall be true and correct in all
respects as of the Closing Date, with the same force and effect as if made
as of the Closing Date (other than such representations and warranties as
are made as of another date, which shall be true and correct in all
respects as of such date), except where the failure to be so true and
correct would not have a Material Adverse Effect, and the Purchaser shall
have received a certificate from each of the Sellers to such effect signed
by a duly authorized officer thereof;
(b) Covenants. Each of the covenants and agreements contained in this
Agreement to be complied with by the Sellers on or before the Closing shall
have been complied with in all material respects, and the Purchaser shall
have received a certificate from each of the Sellers to such effect signed
by a duly authorized officer thereof;
(c) HSR Act. Any waiting period (and any extension thereof) under the
HSR Act or under the applicable merger control or competition Laws of
Germany and the United Kingdom applicable to the purchase of the Shares and
the SAP Assets contemplated hereby shall have expired or shall have been
terminated;
(d) No Proceeding or Litigation. No Action shall have been commenced
or threatened by or before any Governmental Authority against the Sellers
or the Purchaser, seeking to restrain or materially and adversely alter the
transactions contemplated hereby which, in the reasonable, good faith
determination of the Purchaser, is likely to render it impossible or
unlawful to consummate the transactions contemplated by this Agreement or
which could have a Material Adverse Effect; provided, however, that the
provisions of this Section 8.02(d) shall not apply if the Purchaser has
solicited or encouraged any such Action;
(e) Resolutions of the Sellers. The Purchaser shall have received a
true and complete copy, certified by the Secretary or an Assistant
Secretary of each of the Sellers, of the resolutions duly and validly
adopted by the board of directors of each of the Sellers evidencing its
authorization of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, as applicable;
(f) Incumbency Certificate of the Sellers. The Purchaser shall have
received a certificate of the Secretary or an Assistant Secretary of each
of the Sellers certifying the names and signatures of the officers of such
Sellers authorized to sign this Agreement and the other documents to be
delivered hereunder, as applicable;
(g) Resignations of the Directors of the Company and SAP Thai. The
Purchaser shall have received the resignations, effective as of the
Closing, of all the directors and officers of the Company and SAP Thai,
except for such Persons, if any, as shall have been designated in writing
prior to the Closing by the Purchaser to Parent;
(h) Release of Indemnity Obligations. The Purchaser shall have
received the general release and discharge from Parent described in Section
5.11 of this Agreement;
(i) Stockholder Approval. This Agreement shall have been approved and
adopted by the affirmative vote of the stockholders of Parent in accordance
with applicable Law and Parent's Restated Certificate of Incorporation and
By-Laws;
(j) No Material Adverse Effect. No event or events shall have
occurred, or be reasonably likely to occur, which, individually or in the
aggregate, have, or is reasonably likely to have, a Material Adverse
Effect, it being understood and agreed that the termination of customer
contracts shall not be considered a Material Adverse Effect for purposes of
this paragraph;
(k) Transition Services Agreement. Parent shall have executed and
delivered to the Purchaser the Transition Services Agreement;
(l) SAP Subleases. Parent or one of its designated Affiliates shall
have executed and delivered to the Purchaser the SAP Subleases;
(m) CETCO Supply Agreement. Parent shall have executed and delivered
to the Purchaser the CETCO Supply Agreement;
(n) ION Exchange License Agreement. Parent shall have executed and
delivered to the Purchaser the ION Exchange License Agreement;
(o) License Agreement. Parent shall have executed and delivered to the
Purchaser the License Agreement;
(p) Acrylic Acid Supply Agreement. Chemdal U.K. shall have executed
and delivered to the Purchaser the Acrylic Acid Supply Agreement;
(q) Tax Forms and Certificates. The Purchaser shall have received the
Tax forms and certifications required to be delivered by Parent and the
Other Sellers pursuant to Sections 7.07(a) and 7.08(f) of this Agreement;
(r) Thai Plant Facility. The manufacturing facility being constructed
by Parent and its Affiliates in Rayong, Thailand (the "Thai Facility")
shall be delivered to the Purchaser and shall be Mechanically Complete as
defined in Exhibit 5.26 attached hereto; and
(s) Thai Recordings. Parent shall have delivered, or shall have caused
to be delivered, to the Purchaser, certificates from a duly authorized
officer of Parent as shall reasonably be required for the Purchaser to make
the Thai Recordings, each in form and substance satisfactory to the
Purchaser acting reasonably.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Survival of Representations and Warranties. The
representations and warranties contained in this Agreement and the obligations
of the parties pursuant to Sections 9.02(i), 9.02(v), 9.02(viii), 9.02(ix) and
9.03(a)(i) hereof shall survive the Closing and remain in full force and effect
for a period of 15 months following the Closing Date (it being understood that,
subject to Sections 9.01(a), 9.01(b) and 9.01(c) hereof, and subject to the
effect of any applicable statute of limitations, the obligations of the parties
pursuant to the remaining provisions of Sections 9.02 and 9.03 hereof shall
survive Closing indefinitely); provided, however, that (a) the representations
and warranties contained in Sections 3.20, 3.21 and 3.23 shall survive for the
period provided in Section 7.08(c) (it being understood that the representations
and warranties contained in Sections 3.20 and 3.21 shall survive for the period
provided in Section 7.08(c) only to the extent of resulting Tax liabilities and
otherwise shall remain in full force and effect for a period of 15 months
following the Closing Date); (b) the representations and warranties contained in
Section 3.14 and the obligations of the parties pursuant to Section 9.02(vii)
hereof shall survive the Closing and remain in full force and effect until the
fourth anniversary of the Closing Date; and (c) the obligations of the parties
pursuant to Section 9.02(x) shall survive the Closing and remain in full force
and effect until the 120th day following
the expiration of the applicable statute of limitations with respect to the Loss
or Liabilities in question (giving effect to any waiver, mitigation or extension
thereof). If written notice of a claim has been given prior to the expiration of
the applicable representations and warranties by the Purchaser to Parent, or by
Parent to the Purchaser, then the relevant representations and warranties shall
survive as to such claim, until such claim has been finally resolved.
SECTION 9.02. Indemnification by Parent. The Purchaser, its Affiliates and
their successors and assigns, and the officers, directors, employees and agents
of the Purchaser, its Affiliates and their successors and assigns (each, a
"Purchaser Indemnified Party") shall be indemnified and held harmless by Parent
for any and all Liabilities, losses, damages, claims, costs and expenses,
interest, awards, judgments and penalties (including, without limitation,
attorneys' and consultants' fees and expenses) actually suffered or incurred by
them (including, without limitation, any Action or investigation brought or
otherwise initiated by any of them) (hereinafter, a "Loss"), arising out of or
resulting from:
(i) the breach of any representation or warranty made by the Sellers
contained in this Agreement (it being understood that for purposes of this
Article IX, and except for the representations and warranties contained at
Section 3.15 of the Agreement, such representations and warranties will be
interpreted without giving effect to any qualifications or limitations as
to "materiality" or "Material Adverse Effect"); or
(ii) the breach of any covenant or agreement by the Sellers contained
in this Agreement; or
(iii) the Excluded Liabilities; or
(iv) all Liabilities, whether arising before or after the Closing
Date, arising from or relating to the Remco Businesses; or
(v) any and all Liabilities or Losses suffered or incurred by the
Purchaser or the Company or SAP Thai or the SAP Business, including by
reason of or in connection with any claim or cause of action of any third
party, to the extent arising out of any action, inaction, event, condition,
liability or obligation of the Company, SAP Thai, the Sellers or the SAP
Business occurring or existing prior to the Closing, but only to the extent
that the existence of such Liability or Loss constitutes a breach by the
Sellers of their representations and warranties in this Agreement; or
(vi) the Excluded Assets; or
(vii) except for any Offsite Environmental Liabilities, and except for
the matter specifically described in Exhibit 5.27 attached hereto which
shall be resolved in the manner contemplated therein, any and all Losses or
Liabilities pursuant to any Environmental Law, or related to gases
occurring naturally, geologically or otherwise, in each case, arising from
or related to any action, event, circumstance or condition related to the
SAP Business and occurring or existing on or before the Closing Date,
including, without limitation, (A) any Release of Hazardous Materials into
the Environment at, to or from the SAP Real Property or any property
formerly owned or operated in connection with the SAP Business, in each
case on or prior to the Closing (and any additional migration of such
Release after the Closing Date) to the extent such Release is in violation
of any Environmental Law or is in a quantity, concentration or any other
form that is reportable or requires investigation, remediation or other
action pursuant to any Environmental Law, (B) any and all Environmental
Claims arising at any time that relate to the SAP Business or the SAP Real
Property on or prior to the Closing and (C) any and all non-compliances
with or violations of any applicable Environmental Law or Environmental
Permit relating to the Company, SAP Thai, the Sellers, the SAP Real
Property or the SAP Business on or prior to the Closing (and any
continuance of such non-compliance or violation after the Closing Date,
except, with respect to this Section 9.02(vii)(C), to the extent (i) the
Purchaser was or should have been aware of such noncompliance or violation
on or before the Closing Date, or (ii) the condition constituting such
noncompliance or violation is altered or changed by Purchaser and its
Affiliates after the Closing Date); or
(viii) any Losses arising from claims made by any Person in connection
with the transfer of the employment of the U.K. Designated Employees, or as
a result of the subsequent expiry of notice given to them by the Sellers,
or arising from any earlier termination of any Person's employment (whether
such claim shall be for wrongful or unfair dismissal, statutory gross
redundancy payments, contractual or other redundancy payment, compensation
for failure to consult, pay in lieu of notice, dismissal at common law or
otherwise) and from and against all actions, losses, costs, claims,
proceedings, demands, judgments, liabilities and expenses incurred or
suffered by the Purchaser in connection with or as a result of any
liability or obligation to any U.K. Designated Employee in relation to the
foregoing (it being understood that Parent shall have no obligation to
indemnify a Purchaser Indemnified Party for any Losses specifically arising
out of, or specifically attributed to, the Purchaser satisfying its
obligations under Article VI hereof); or
(ix) any Losses arising out of any breach prior to the Closing Date by
the Sellers of the U.K. Regulations or of any obligation in connection with
or under any contract of employment of any U.K. Designated Employee to the
extent that the event giving rise to the cause of action in respect of any
such claim arose prior to the Closing Date; or
(x) any claim that the manufacture, use, importation, offering for
sale or sale of Indemnified Products infringes the * Patents,
notwithstanding the inclusion of such matters on the Disclosure Schedule,
but only to the extent of the Losses arising from the aggregate volumes of
Indemnified Products that the manufacturing facilities included in the SAP
Businesses were capable of manufacturing as of the Closing Date (including,
for this purpose, the anticipated production capacity of 20,000 metric tons
annually in the Thai Facility); provided, however, that the Purchaser
agrees to reasonably cooperate with Parent, at Parent's cost, in responding
to and defending any such assertion of infringement or infringement claims;
and provided, further, however, that the Purchaser acts in a commercially
reasonable manner (which shall not require the Purchaser to impair or
jeopardize the SAP Business) to mitigate the Losses that result from or
potentially could result from such infringement or alleged infringement; or
(xi) any Loss or Liability arising out of any expenditures or amounts
payable in connection with construction of the Thai Facility in accordance
with the Thai Facility Construction Contracts.
SECTION 9.03. Indemnification by the Purchaser. (a) Subject to the
provisions of Section 9.03(b), Parent, its Affiliates and their successors and
assigns, and the officers, directors, employees and agents of Parent, its
Affiliates and their successors and assigns (each, a "Seller Indemnified Party")
shall be indemnified and held harmless by the Purchaser for any and all Losses
arising out of or resulting from:
(i) the breach of any representation or warranty made by the Purchaser
contained in this Agreement; or
(ii) the breach of any covenant or agreement by the Purchaser
contained in this Agreement; or
(iii) any Assumed Liabilities; or
(iv) any third party claims to the extent arising primarily out of, or
relating primarily to, the conduct of the SAP Business before or after the
Closing, except (i) to the extent that Parent is obligated to indemnify the
Purchaser with respect to such Losses pursuant to Sections 9.02 and 7.01
hereof, or (ii) as otherwise contemplated by this Agreement (it being
understood that the Purchaser shall have no obligation to indemnify a
Seller Indemnified Party hereunder for any Losses to the extent actually
paid, satisfied or resolved prior to the date hereof ); or
(v) any claim arising out of the employment or discharge at any time
on or after the Closing Date by the Purchaser, the Company or SAP Thai of
any employee listed on Section 6.01 of the Disclosure Schedule and Section
6.08 of the Disclosure Schedule attached hereto or otherwise, including,
without limitation, any failure by the Purchaser to satisfy its obligations
under Article 6 hereof, and any severance amounts payable to such employees
arising as a result of his or her discharge or termination of employment by
the Purchaser, the Company or SAP Thai following the Closing Date; or
(vi) subject to the terms of Section 9.02(viii), any Losses arising
from claims made by any U.K. Designated Employees against the Sellers in
connection with the transfer of their employment pursuant to the U.K.
Regulations or as a result of any termination of their employment by the
Purchaser (whether such claim shall be for wrongful or unfair dismissal,
redundancy payment or dismissal at common law or otherwise) where such
termination takes place after the Closing Date.
(b) Notwithstanding anything to the contrary contained in Section
9.03(a) herein, in the event the Purchaser is required to indemnify a
Seller Indemnified Party for any Loss pursuant to this Article IX, the
Purchaser shall not have any obligation or otherwise be required to pay any
amount to such Seller Indemnified Party on account of such Loss unless and
until the Seller Indemnified Party has used its reasonable efforts to
access any of its (or any of its Affiliate's) applicable insurance policies
in a manner that is consistent with the terms of such policies, such
reasonable efforts to include, without limitation, the Seller Indemnified
Party using reasonable efforts to pursue any claims denied under such
applicable insurance policies; provided, however, that, subject to the
provisions of Section 9.05(b), the Purchaser shall then only be obligated
to pay the Seller Indemnified Party (i) the amount, if any, equal to the
difference between the amount the Purchaser would otherwise have been
required to pay to such Seller Indemnified Party hereunder and the
aggregate amount of any insurance proceeds actually paid to the Seller
Indemnified Party on account of the Loss giving rise to the Purchaser's
obligation to reimburse the Seller Indemnified Party, and (ii) the
aggregate amount of any deductible payments actually paid by the Seller
Indemnified Party to an insurance carrier in connection with accessing any
applicable insurance policies.
SECTION 9.04. Indemnification Procedures. A Purchaser Indemnified Party or
a Seller Indemnified Party, as the case may be (for purposes of this Article IX,
an "Indemnified Party"), shall give the indemnifying party under Section 9.02 or
9.03, as applicable (for purposes of this Section 9.04, an "Indemnifying
Party"), prompt written notice of any matter which an Indemnified Party has
determined has given or could give rise to a right of indemnification under this
Agreement, and in any case within 60 days of such determination, stating the
amount of the claim, if known, and method of computation thereof, and containing
a reference to the provisions of this Agreement in respect of which such right
of indemnification is claimed or arises. The obligations and Liabilities of the
Indemnifying Party under this Article IX with respect to Losses arising from
claims of any third party which are subject to the indemnification provided for
in this Article IX ("Third Party Claims") shall be governed by and contingent
upon the following additional terms and conditions: if an Indemnified Party
shall receive notice of any Third Party Claim, the Indemnified Party shall give
the Indemnifying Party written notice of such Third Party Claim within 30 days
of the receipt by the Indemnified Party of such written notice; provided,
however, that if such notice of a Third Party Claim is in the form of a
Complaint (or other similar legal document commencing litigation), the
Indemnified Party shall give the Indemnifying Party written notice of such Third
Party Claim within 15 days of the receipt by the Indemnified Party of such
Complaint (or other similar document); provided, further, however, that the
failure to provide such written notice shall not release the Indemnifying Party
from any of its obligations under this Article IX except to the extent the
Indemnifying Party is materially prejudiced by such failure and shall not
relieve the Indemnifying Party from any other obligation or Liability that it
may have to any Indemnified Party otherwise than under this Article IX. If the
Indemnifying Party acknowledges in writing its obligation to indemnify the
Indemnified Party hereunder against any Losses that may result from such Third
Party Claim, then the Indemnifying Party shall be entitled to assume and control
the defense of such Third Party Claim at its expense and through counsel of its
choice if it gives written notice of its intention to do so to the Indemnified
Party within 90 days of the receipt of such written notice from the Indemnified
Party (it being understood that, during such 90 day period, the Indemnifying
Party may assume and control the defense of such Third Party Claim at its own
expense and through counsel of its choice, and, regardless of whether the
Indemnifying Party has assumed control of the defense during the 90 day period,
the Indemnified Party may not settle such Third Party Claim during such 90 day
period without the prior written consent of the Indemnifying Party, such consent
not to be unreasonably withheld, unless the Indemnifying Party is given a full
and complete release of any and all liability by all relevant parties relating
thereto); provided, however, that if there exists or is reasonably likely to
exist a conflict of interest that would make it inappropriate in the judgment of
the Indemnified Party, in its reasonable discretion, for the same counsel to
represent both the Indemnified Party and the Indemnifying Party, then the
Indemnified Party shall be entitled to retain its own counsel, in each
jurisdiction for which the Indemnified Party determines counsel is required, at
the expense of the Indemnifying Party. If, prior to the expiration of such 90
day period, the Indemnifying Party does not acknowledge in writing its
obligation to indemnify the Indemnified Party for any Losses which may result
from the Third Party Claim, the Indemnified Party (i) may elect to assume and
control the defense of such Third Party Claim at the Indemnifying Party's
expense; and (ii) the Indemnified Party shall have the right to settle such
Third Party Claim without the consent of the Indemnifying Party
after reasonable prior written notice to the Indemnifying Party of the material
terms of such proposed settlement. In the event the Indemnified Party is,
directly or indirectly, conducting the defense against any such Third Party
Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such
defense and make available to the Indemnified Party, at the Indemnified Party's
expense, all such witnesses, records, materials and information in the
Indemnifying Party's possession or under the Indemnifying Party's control
relating thereto as is reasonably required by the Indemnified Party. In the
event the Indemnifying Party elects to control the defense of any Third Party
Claim by notifying the Indemnified Party of such decision within the 90 day
period provided above, then (x) the Indemnified Party shall cooperate with the
Indemnifying Party in such defense and make available to the Indemnifying Party,
at the Indemnifying Party's expense, all witnesses, pertinent records, materials
and information in the Indemnified Party's possession or under the Indemnified
Party's control relating thereto as is reasonably required by the Indemnifying
Party and (y) the Indemnifying Party may not settle such Third Party Claim
without the prior consent of the Indemnified Party, such consent not to be
unreasonably withheld, unless the Indemnified Party is given a full and complete
release of any and all liability by all relevant parties relating thereto. If
the Indemnifying Party shall elect to assume the defense of a Third Party Claim
by notifying the Indemnified Party of its obligation to indemnify such party
during the 90 day period as provided above, then it shall do so at its own
expense; provided, however, that all other matters described above as being at
the expense of the Indemnifying Party shall only become payable by the
Indemnifying Party if, when and to the extent that the Indemnifying Party is
ultimately determined to be obligated to indemnify the Indemnified Party
pursuant to this Article IX.
SECTION 9.05. Limits on Indemnification. (a) Any indemnity payment required
to be made under this Agreement shall include any amount necessary to hold the
Indemnified Party harmless on an After-Tax Basis.
(b) Notwithstanding anything to the contrary contained in this Agreement,
(i) an Indemnifying Party shall not be liable for any claim for indemnification
pursuant to Section 9.02(i), 9.02(v), 9.02(vii) or 9.03(a)(i) hereof, as
applicable, unless and until the aggregate amount of Losses incurred by an
Indemnified Party or group of Indemnified Parties pursuant to all claims made
pursuant to all such Sections in the aggregate equals or exceeds $5,000,000,
after which the Indemnifying Party shall be liable only for those Losses in
excess of $5,000,000, (ii) no Losses shall be claimed under Sections 9.02(i),
9.02(v), 9.02(vii) or 9.03(a)(i) by an Indemnified Party or group of Indemnified
Parties or shall be reimbursable by an Indemnifying Party pursuant to this
Article IX, or shall be included in calculating the aggregate Losses in clause
(i) of this paragraph, other than Losses in excess of $150,000 resulting from
any single or aggregated claims arising out of the same facts, event or
circumstances and (iii) in no event shall the Indemnifying Party be liable for
aggregate Losses arising under Section 9.02(i), 9.02(v), 9.02(vii), 9.02(x),
9.02(xi) or 9.03(a)(i), as applicable, in excess of the Purchase Price.
SECTION 9.06. Waiver of Other Remedies. The rights and remedies provided in
this Agreement are cumulative, but absent fraud, shall be the exclusive remedies
of the parties hereto with respect to claims for monetary damages related to the
matters addressed herein and with respect to the transactions contemplated
hereby, and the parties shall have no other liability for monetary damages to
each other under any statutory or common law right; provided, however, that
nothing herein shall be construed as limiting the right of a party hereto to
equitable relief, other than monetary damages, for a breach of this Agreement.
Any election of one available remedy by a party hereto shall not constitute a
waiver of any other available remedy. An Indemnified Party may claim
indemnification hereunder for consequential damages; provided, however, that an
Indemnified Party shall not claim indemnification for lost profits.
ARTICLE X
TERMINATION AND WAIVER
SECTION 10.01. Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) by the Purchaser if, between the date hereof and the time scheduled for
the Closing: (i) an event or condition occurs that has resulted in or that is
reasonably likely to result in a Material Adverse Effect or (ii) Parent, the
Company, SAP Thai or an Other Seller makes a general assignment for the benefit
of
creditors, or any proceeding shall be instituted by or against Parent, the
Company, SAP Thai or an Other Seller seeking to adjudicate any of them a
bankrupt or insolvent, or seeking liquidation, winding up or reorganization,
arrangement, adjustment, protection, relief or composition of its debts under
any Law relating to bankruptcy, insolvency or reorganization, and such
proceeding is not dismissed within 90 days; or
(b) by the Purchaser, upon a breach of any representation, warranty,
covenant or agreement on the part of the Sellers set forth in this Agreement, or
if any representation or warranty of the Sellers shall have become untrue, in
either case, such that the conditions set forth in Section 8.02(a) or Section
8.02(b) would not be satisfied ("Terminating Sellers' Breach"); provided,
however, that, if such Terminating Sellers' Breach is curable by the Sellers
through the exercise of their reasonable efforts and for so long as the Sellers
continue to exercise such reasonable efforts, the Purchaser may not terminate
this Agreement under this Section 10.01(b); or
(c) by Parent upon a breach of any representation, warranty, covenant or
agreement on the part of the Purchaser set forth in this Agreement, or if any
representation or warranty of the Purchaser shall have become untrue, in either
case such that the conditions set forth in Section 8.01(a) or Section 8.01(b)
would not be satisfied ("Terminating Purchaser Breach"); provided, however,
that, if such Terminating Purchaser Breach is curable by the Purchaser through
the exercise of its reasonable efforts and for so long as the Purchaser
continues to exercise such reasonable efforts, Parent may not terminate this
Agreement under this Section 10.01(c); or
(d) by either Parent or the Purchaser if the Closing shall not have
occurred by May 31, 2000; provided, however, that the right to terminate this
Agreement under this Section 10.01(d) shall not be available to any party whose
failure to fulfill any obligation under this Agreement shall have been the cause
of, or shall have resulted in, the failure of the Closing to occur on or prior
to such date; or
(e) by the Purchaser or Parent if, at such time as this Agreement is
submitted for approval to a vote of the stockholders of Parent, Parent's
stockholders vote against approval and adoption of this Agreement; or
(f) by either the Purchaser or Parent in the event that any Governmental
Authority shall have issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the transactions contemplated by
this Agreement and such order, decree, ruling or other action shall have become
final and nonappealable; or
(g) by Parent in order to enter into a definitive agreement with respect to
a Superior Proposal; provided, however, that (x) Parent must provide the
Purchaser with written notice of such Superior Proposal, including a reasonable
description of the material terms thereof, and (y) Parent shall not take any
action in respect of such Superior Proposal, including terminating this
Agreement or entering into an agreement relating to the Superior Proposal, for a
period of five Business Days following receipt of such notice by the Purchaser
and until such time as Parent's Board of Directors has considered any response
to such notice provided by the Purchaser to Parent during such five Business Day
period; provided, further, however, that no such termination by Parent pursuant
to this Section 10.01(g) shall be effective until after Parent has paid the
Purchaser the Fee (as defined herein) set forth in Section 10.03 of this
Agreement; or
(h) by the mutual written consent of Parent and the Purchaser.
SECTION 10.02. Effect of Termination. In the event of termination of this
Agreement as provided in Section 10.01, this Agreement shall forthwith become
void and there shall be no liability on the part of either party hereto except
(a) as set forth in Sections 5.03 and 10.03 and (b) that nothing herein shall
relieve either party from liability for any breach of this Agreement.
SECTION 10.03. Fees and Expenses. (a) In the event that:
(i) (x) this Agreement is terminated pursuant to Section 10.01(e) and at or
prior to the time of the vote of Parent's stockholders with respect to the
Agreement, an Acquisition Proposal shall have been made public and (y) Parent
enters into an agreement with respect to an Acquisition Proposal, or an
Acquisition Proposal is consummated, in each case within 12 months after such
termination of this Agreement; or
(ii) this Agreement is terminated pursuant to Section 10.01(g); or
(iii) (x) this Agreement is terminated for any reason, other than pursuant
to Section 10.01(a)(i), Section 10.01(a)(ii), Section 10.01(c), Section 10.01(f)
or Section 10.01(h), and (y) Parent enters into an agreement with respect to a
Superior Proposal, or a Superior Proposal is consummated, in each case within 12
months after such termination of this Agreement; then, in any such event, Parent
shall pay the Purchaser a fee of U.S.$20,000,000 (the "Fee"), which amount shall
be payable in immediately available funds, plus all Expenses (as hereinafter
defined). Should the Fee and Expenses become payable to the Purchaser pursuant
to (x) Section 10.03(a)(i), then Parent shall pay such Fee and Expenses to the
Purchaser promptly (but in no event later than one Business Day after
consummation of the Acquisition Proposal), or (y) Section 10.03(a)(iii), then
Parent shall pay such Fee and Expenses to the Purchaser promptly (but in no
event later than one Business Day after consummation of the Superior Proposal)
or (z) Section 10.03(a)(ii), then Parent shall pay such Fee and Expenses to the
Purchaser prior to termination of the Agreement pursuant to Section 10.01(g).
For the purposes of this Section 10.03(a), "Expenses" shall mean all
out-of-pocket expenses and fees up to U.S.$3,000,000, in the aggregate
(including, without limitation, fees and expenses payable to all banks and
investment banking firms and all fees of counsel, accountants, experts and
consultants to the Purchaser) actually incurred or accrued by, or on behalf of,
the Purchaser in connection with this Agreement and the transactions
contemplated hereby.
(b) In the event that Parent shall fail to pay the Fee and any Expenses
when due, the term "Expenses" shall be deemed to include the costs and expenses
actually incurred or accrued (including, without limitation, fees and expenses
of counsel) by the Purchaser in connection with the collection under and
enforcement of this Section 10.03, together with interest on such unpaid
Expenses and Fee, commencing on the date that the Expenses and such Fee, as
applicable, became due, at a rate equal to the rate of interest publicly
announced by Citibank, N.A., from time to time, in the City of New York, as such
bank's Base Rate plus 2%.
ARTICLE XI
GENERAL PROVISIONS
SECTION 11.01. Expenses. Except as otherwise provided in Sections 5.06(a),
7.06, and 10.03, and as otherwise may be contemplated by this Agreement, all
costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
SECTION 11.02. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in Person, by telecopy,
cable, telegram or telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this Section 11.02):
if to the Purchaser:
BASF Aktiengesellschaft
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇
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Telecopier No.: 011-49-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
with a copy to:
Shearman & Sterling
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Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
with a copy to:
BASF Corporation
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
if to Parent:
AMCOL International Corporation
One North Arlington
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Lord, Bissell & Brook
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Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
SECTION 11.03. Public Announcements. The Purchaser and Parent shall consult
with each other before issuing any press release or otherwise making any public
statements with respect to this Agreement and the transactions contemplated
hereby and shall not issue any such press release or make any such public
statement prior to such consultation and agreement on such press release, except
as may be required by Law or any listing agreement with a national securities
exchange to which the Purchaser or Parent is a party.
SECTION 11.04. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 11.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the greatest
extent possible.
SECTION 11.06. Entire Agreement. This Agreement and the Transaction
Agreements constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and thereof and, except for the Confidentiality
Agreement, supersede all prior agreements and undertakings, both written and
oral, between Parent and the Purchaser with respect to the subject matter hereof
and thereof.
SECTION 11.07. Assignment. This Agreement shall not be assigned by
operation of Law or otherwise, except that the Purchaser may assign all or any
of its rights and obligations hereunder to any Affiliate of the Purchaser,
provided, however, that no such assignment shall relieve the Purchaser of its
obligations hereunder if such assignee does not perform such obligations.
SECTION 11.08. Third Party Beneficiaries. Except for the provisions of
Article IX and Article VII relating to Indemnified Parties, (a) the provisions
of this Agreement are solely for the benefit of the parties and are not intended
to confer upon any Person except the parties any rights or remedies hereunder
and (b) there are no third party beneficiaries of this Agreement and this
Agreement shall not provide any third Person with any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
SECTION 11.09. Amendment. This Agreement may not be amended or modified
except (a) by an instrument in writing signed by, or on behalf of, Parent and
the Purchaser or (b) by a waiver in accordance with Section 11.10.
SECTION 11.10. Waiver. Either party to this Agreement may (a) extend the
time for the performance of any of the obligations or other acts of the other
party, (b) waive any inaccuracies in the representations and warranties of the
other party contained herein or in any document delivered by the other party
pursuant hereto or (c) waive compliance with any of the agreements or conditions
of the other party contained herein. Any such extension or waiver shall be valid
only if set forth in an instrument in writing signed by the party to be bound
thereby, and shall thereafter, except as otherwise specified in such writing,
operate as a waiver (or satisfaction) of such condition for all purposes of this
Agreement. Any waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this Agreement. The
failure of any party to assert any of its rights hereunder shall not constitute
a waiver of any of such rights.
SECTION 11.11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in any Delaware state or federal court sitting in Wilmington. The
parties hereto hereby (i) submit to the exclusive jurisdiction of any Delaware
state or federal court sitting in Wilmington for the purpose of any Action
arising out of or relating to this Agreement brought by any party hereto and
(ii) waive, and agree not to assert by way of motion, defense, or otherwise, in
any such Action, any claim that it is not subject personally to the jurisdiction
of the above-named courts, that its property is exempt or immune from attachment
or execution, that the Action is brought in an inconvenient forum, that the
venue of the Action is improper, or that this Agreement or the transactions
contemplated hereby may not be enforced in or by any of the above-named courts.
SECTION 11.12. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 11.13. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
IN WITNESS WHEREOF, Parent and the Purchaser have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
AMCOL INTERNATIONAL CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman & CEO
BASF AKTIENGESELLSCHAFT
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director, Legal
BASF AKTIENGESELLSCHAFT
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
[▇▇▇▇▇▇▇▇ & Co. Inc. Letterhead]
November 22, 1999
The Board of Directors
AMCOL International Corporation
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Members of the Board of Directors:
We understand that AMCOL International Corporation ("AMCOL" or the "Company") is
entering into a transaction (the "Transaction") pursuant to which the Company
would sell substantially all of the assets and certain liabilities (as described
in the Agreement (as defined below)) associated with the Superabsorbent Polymers
Business (the "SAP Business") to BASF AG ("BASF") for cash consideration of
$656.5 million, subject to adjustment as provided in the Agreement (the
"Transaction Consideration"). The Agreement provides for an adjustment of the
Transaction Consideration to the extent that the actual net working capital of
the SAP Business is greater or less than the targeted working capital amount as
indicated by management of approximately $34,175,000.
You have requested that ▇▇▇▇▇▇▇▇ & Co. Inc. ("Schroders") render an opinion (the
"Opinion"), as investment bankers, as to the fairness to AMCOL, from a financial
point of view, of the Transaction Consideration being paid to AMCOL.
Schroders, as part of its investment banking business, is regularly engaged in
the valuation of businesses and securities in connection with mergers and
acquisitions, negotiated underwritings, secondary distributions of listed and
unlisted securities, private placements and valuations for estate, corporate and
other purposes. Schroders has acted as financial advisor to AMCOL with respect
to the Transaction for which we will receive a fee for our services, a
significant portion of which is contingent upon consummation of the Transaction.
In connection with the Opinion set forth herein, we have, among other things:
1. Reviewed certain publicly available business and financial information
relating to AMCOL and the SAP Business that we deemed relevant;
2. Reviewed certain unaudited historical financial and operating
information relating to the SAP Business provided to us by AMCOL;
3. Reviewed certain other information, including financial and operating
forecasts of the SAP Business, provided to us by AMCOL;
4. Held discussions with senior management and representatives of AMCOL
regarding the business, operations and prospects of the SAP Business
and its products;
5. Reviewed a draft Asset Purchase Agreement dated November 19, 1999,
between AMCOL and BASF relating to the Transaction (the "Agreement");
6. Performed various valuation analyses, as we deemed appropriate, of the
SAP Business using generally accepted analytical methodologies,
including (i) the application to the financial results of the SAP
Business of the public trading multiples of companies which we deemed
comparable; (ii) the application to the financial results of the SAP
Business of the multiples reflected in recent mergers and acquisitions
for businesses which we deemed comparable; (iii) discounted cash flow
analyses of the SAP Business' operations and (iv) leveraged buyout
analysis of the SAP Business' operations;
7. Considered the results of solicitations of interest from third parties
regarding potential business combinations involving the SAP Business;
and
8. Performed such other financial studies, analyses, inquiries and
investigations, as we deemed appropriate including an assessment of
the current economic and market conditions.
In rendering the Opinion, we have assumed and relied upon the accuracy and
completeness of all information (including the assumptions and bases used in
connection with preparation of forecasts and projections) supplied or otherwise
made available to us by the Company and the SAP Business or obtained by us from
publicly available sources, and upon the assurance of the Company's management
that they are not aware of any information or facts that would make the
information provided to us incomplete or misleading. We have also assumed that
there will be no decrease in the Transaction Consideration as a result of the
working capital adjustment provided for in the Agreement. We have not
independently verified such information, undertaken an independent appraisal of
the assets or liabilities (contingent or otherwise) of the SAP Business, or been
furnished with any such appraisals. With respect to financial forecasts for the
SAP Business, we have been advised by the Company, and we have assumed, without
independent investigation, that they have been reasonably prepared and reflect
the best currently available estimates and judgment as to the expected future
financial performance of the SAP Business.
You have advised us that the Company does not disclose internal forecasts or
projections of the type provided to Schroders and therefore such forecasts and
projections were not prepared with expectation of public disclosure. You have
advised us that such forecasts and projections were based upon numerous
variables and assumptions that are inherently uncertain, including, without
limitation, factors related to general economic and competitive conditions.
Accordingly, actual results could vary significantly from those set forth in
such projections.
The Opinion is necessarily based upon financial, economic, market and other
conditions as they exist, and the information made available to us, as of the
date hereof. We disclaim any undertakings or obligations to advise any person of
any change in any fact or matter affecting the Opinion which may come or be
brought to our attention after the date of the Opinion.
In the ordinary course of our business, we may hold and actively trade debt or
equity securities of AMCOL for our own account or for the accounts of our
customers and, accordingly, may at any time hold a long or short position in
such securities.
The Opinion does not constitute a recommendation as to any action the Board of
Directors of the Company or any stockholder of the Company should take in
connection with the Transaction or any aspect thereof. The Opinion relates
solely to the fairness from a financial point of view of the Transaction
Consideration being paid to AMCOL. We have not taken into account nor are we
opining on any tax liabilities related to or resulting from the Transaction
which the Company may incur. We express no opinion herein as to the structure,
terms or effect of any other aspect of the Transaction or as to the merits of
the underlying decision of the Company to enter into the Transaction.
This letter is for the information of the Board of Directors of AMCOL solely for
its use in evaluating the fairness from a financial point of view of the
Transaction Consideration being paid to AMCOL. It may not be used for any other
purpose or referred to without our prior written consent.
Based upon and subject to all of the foregoing, we are of the opinion, as
investment bankers, that as of the date hereof, the Transaction Consideration
being paid is fair, from a financial point of view, to AMCOL.
Very truly yours,
/s/▇▇▇▇▇▇▇▇ & CO. INC.