EXHIBIT 2(c)
TRANSACTION AGREEMENT
Dated as of July 12, 1998
By and Between
THE BLACK & ▇▇▇▇▇▇ CORPORATION
and
▇▇▇▇▇▇ HOLDING AG
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.........................................1
ARTICLE II
TRANSACTIONS AND CLOSING
Section 2.01 Closing Transactions................................1
Section 2.02 Exchange Consideration..............................3
Section 2.03 Closing.............................................3
Section 2.04 Adjustments of Exchange Consideration...............4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BLACK & ▇▇▇▇▇▇
Section 3.01 Representations and Warranties of Black & ▇▇▇▇▇▇....5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Section 4.01 Representations and Warranties of Buyer.............5
ARTICLE V
COVENANTS AND AGREEMENTS OF BLACK & ▇▇▇▇▇▇
Section 5.01 Conduct of Business.................................6
Section 5.02 Access to Information; Confidentiality..............7
Section 5.03 Change of Lockbox Accounts..........................8
Section 5.04 Access to Information; Cooperation After Closing....8
Section 5.05 Maintenance of Insurance Policies...................9
Section 5.06 Noncompetition......................................9
Section 5.07 Third Party's Consent and Notification to Third
Parties............................................10
ARTICLE VI
COVENANTS AND AGREEMENTS OF BUYER
Section 6.01 Confidentiality....................................10
Section 6.02 Provision and Preservation of and Access to
Certain Information; Cooperation...................10
Section 6.03 Insurance; Financial Support Arrangements..........11
Section 6.04 Use of Intellectual Property.......................13
Section 6.05 Certain Environmental Investigations...............13
ARTICLE VII
COVENANTS AND AGREEMENTS OF THE PARTIES
Section 7.01 Further Assurances.................................14
Section 7.02 Certain Filings; Consents..........................14
Section 7.03 Public Announcements...............................14
Section 7.04 Intellectual Property..............................14
Section 7.05 Filings............................................15
Section 7.06 Legal Privileges...................................15
Section 7.07 Taxes..............................................15
Section 7.08 Currency Hedge Contracts...........................18
Section 7.09 Restructuring Costs................................20
ARTICLE VIII
EMPLOYEES AND EMPLOYEE BENEFIT MATTERS
Section 8.01 Employees and Employee Benefit Matters.............20
ARTICLE IX
CONDITIONS TO CLOSING
Section 9.01 Conditions to the Obligations of Each Party........20
Section 9.02 Conditions to Obligation of Buyer..................21
Section 9.03 Conditions to Obligation of Black & ▇▇▇▇▇▇.........21
Section 9.04 Updated Disclosure Schedules.......................22
Section 9.05 Effect of Waiver...................................22
ARTICLE X
SURVIVAL; INDEMNIFICATION
Section 10.01 Survival...........................................22
Section 10.02 Indemnification....................................23
Section 10.03 Procedures.........................................25
Section 10.04 Limitations........................................27
ARTICLE XI
TERMINATION
Section 11.01 Termination........................................28
Section 11.02 Effect of Termination..............................29
ARTICLE XII
MISCELLANEOUS
Section 12.01 Notices............................................29
Section 12.02 Amendments; Waivers................................30
Section 12.03 Expenses; Taxes....................................31
Section 12.04 Successors and Assigns.............................31
Section 12.05 Disclosure.........................................31
Section 12.06 Construction.......................................32
Section 12.07 Entire Agreement...................................32
Section 12.08 Governing Law......................................32
Section 12.09 Counterparts; Effectiveness........................32
Section 12.10 Jurisdiction.......................................33
Section 12.11 Severability.......................................34
Section 12.12 Bulk Sales.........................................34
EXHIBITS
EXHIBIT A Definitions
EXHIBIT B Representations and Warranties of Black & ▇▇▇▇▇▇
EXHIBIT C Representations and Warranties of Buyer
EXHIBIT D Employees and Employee Benefit Matters
ATTACHMENTS
Attachment I Glass Machinery Units, Methods of Sale and Sellers
Attachment II Form of Supplemental Agreements
Attachment III Form of Trademark Agreement
Attachment IV Exchange Consideration Allocation Schedule
Attachment V Conduct of Business Pending Closing
Attachment VI List of Hedge Contracts
Attachment VII Consents and Approvals Required Prior to Closing
Attachment VIII Form of Assignment of United States Trademarks,
Trademark Registrations and Applications for
Registration
Attachment IX Glass Machinery Financial Statements
Attachment X Form of Assignment of Foreign Trademarks, Trademark
Registrations and Applications for Registration
Attachment XI Form of Assignment of United States Patents and
Patent Applications
Attachment XII Form of Assignment of Foreign Patents and
Applications for Patents
Attachment XIII Special Purpose Financial Statements (3/22/98)
Attachment XIV Form of Services Agreement
Attachment XV List of Glass Machinery Business Intellectual
Property that is Registered or Subject to an
Application for Registration
Attachment XVI List of Certain Active Employees
Attachment XVII Opinion of Counsel
Attachment XVIII Agreements Relating to the Determination of the
Proposed Net Tangible Asset Amount and the Final Net
Tangible Asset Amount
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TRANSACTION AGREEMENT
This Transaction Agreement (together with the Exhibits, Schedules and
Attachments hereto, this "Agreement") is made as of the 12th day of July, 1998,
by and among The Black & ▇▇▇▇▇▇ Corporation, a Maryland corporation ("Black &
▇▇▇▇▇▇"), and ▇▇▇▇▇▇ Holding AG, a Swiss corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Black & ▇▇▇▇▇▇, through certain of its direct and indirect
Subsidiaries, is engaged in the Glass Machinery Business;
WHEREAS, upon the terms and subject to the conditions set forth in this
Agreement, Black & ▇▇▇▇▇▇ desires to cause each Seller of Transferred Assets to
transfer substantially all of the assets held, owned or used by it to conduct
the Glass Machinery Business and to assign certain liabilities associated with
the Glass Machinery Business, to a Buyer Company, and to cause each Seller of
Shares to transfer such Shares to a Buyer Company;
WHEREAS, Buyer desires to receive or to cause a Buyer Company to
receive such assets and shares and to assume such liabilities; and
WHEREAS, in connection with the sale of the Glass Machinery Business by
Black & ▇▇▇▇▇▇ to Buyer, Black & ▇▇▇▇▇▇ and Buyer desire to enter into certain
agreements and arrangements ancillary to such sale;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used in this Agreement
shall have the meanings specified in this Agreement or in Exhibit A.
ARTICLE II
TRANSACTIONS AND CLOSING
Section 2.01 Closing Transactions. Upon the terms and subject to the
conditions set forth in this Agreement, the parties agree that at the Closing,
among other things:
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(i) Black & ▇▇▇▇▇▇ will cause each Seller of Transferred
Assets as listed on Attachment I to transfer to a Buyer Company
designated by Buyer all Transferred Assets of such Seller and such
Buyer Company will assume all Assumed Liabilities of such Seller in
accordance with this Agreement;
(ii) to effect the transfer of the Transferred Assets and the
assumption of the Assumed Liabilities contemplated by the foregoing
clause (i), each Seller of Transferred Assets and a Buyer Company shall
execute and deliver (a) a Supplemental Asset Sale Agreement and all
exhibits, schedules and attachments thereto, substantially in the form
attached hereto as Attachment II and modified to the extent necessary
to comply with the laws of, and to ensure its enforceability in, the
nation in which each Glass Machinery Unit to which such Supplemental
Asset Sale Agreement relates is located, in a manner which as closely
comports with the intent of the provisions of this Agreement, the
Supplemental Asset Sale Agreement and all exhibits, schedules and
attachments thereto as is permitted by such laws and (b) the
Intellectual Property Assignment Agreements;
(iii) Black & ▇▇▇▇▇▇ will cause each Seller of Shares as
listed on Attachment I to transfer to Buyer or a Buyer Company
designated by Buyer all Shares of such Seller;
(iv) to effect the transfer of the Shares contemplated by the
foregoing clause (iii) and the transfer and assignment of Excluded
Assets and Excluded Liabilities from a Glass Machinery Share Company to
the Seller of the Shares thereof, each Seller of Shares and a Buyer
Company shall execute and deliver a Supplemental Share Sale Agreement
and all exhibits, schedules and attachments thereto, substantially in
the form attached hereto as Attachment II and modified to the extent
necessary to comply with the laws of, and to ensure its enforceability
in, the nation in which each Glass Machinery Company to which such
Supplemental Share Sale Agreement relates is organized, in a manner
which as closely comports with the intent of the provisions of this
Agreement, the Supplemental Share Sale Agreement and all exhibits,
schedules and attachments thereto as is permitted by such laws;
(v) to effect the license of certain rights in respect of
certain Intellectual Property, Black & ▇▇▇▇▇▇ and Buyer shall execute
the Trademark Agreement substantially in the form contemplated by
Attachment III to this Agreement;
(vi) Black & ▇▇▇▇▇▇ and Buyer shall execute and deliver the
Services Agreement substantially in the form contemplated by Attachment
XIV of this Agreement;
(vii) Buyer shall pay and deliver to Black & ▇▇▇▇▇▇, for its
own account and as agent for the Sellers on account of the Adjusted
Purchase Price, the amount of $178,656,000 in immediately available
funds by wire transfer to one single account designated by Black &
▇▇▇▇▇▇ (which account shall be designated by Black & ▇▇▇▇▇▇ by written
notice to Buyer at least two Business Days prior to the Closing Date,
or such shorter notice as Buyer shall agree to accept);
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(viii) Black & ▇▇▇▇▇▇ shall deliver resignation letters of the
members of the boards of directors or the manager board (in case of the
S.r.l.) of the Glass Machinery Share Companies in accordance with the
instructions of Buyer provided that Black & ▇▇▇▇▇▇ shall not be
required to take such action with respect to any such individual who is
an Active Employee of a Glass Machinery Unit;
(ix) Black & ▇▇▇▇▇▇ shall deliver to Buyer a legal opinion
substantially in the form of Attachment XVII; and
(x) Except as otherwise provided in the Transaction Documents,
Black & ▇▇▇▇▇▇ and its Affiliate and each of the Glass Machinery Units
shall mutually terminate all agreements between Black & ▇▇▇▇▇▇ or any
of its Affiliates, on the one hand, and a Glass Machinery Unit, on the
other hand, except that Black & ▇▇▇▇▇▇ and its Affiliates shall assign
to Buyer Companies designated by Buyer the following agreements:
License Agreement For Patents and Technical Information dated September
30, 1991; Management Services and Technical Assistance Agreement dated
January 1, 1993; General Agency Agreement dated November 1, 1964; and
Technical Assistance and License Agreement dated August 31, 1968, in
each case as amended through the Closing Date.
Section 2.02 Exchange Consideration.
(a) The consideration to be paid to Black & ▇▇▇▇▇▇ and the Sellers for
the Transferred Assets and the Shares (the "Exchange Consideration") shall
consist of the following:
(i) subject to adjustment in accordance with Section 2.04,
$194,000,000 in cash (as so adjusted, the "Adjusted Purchase Price");
and
(ii) the assumption by Buyer Companies of the Assumed
Liabilities in accordance with the Transaction Documents.
(b) The Exchange Consideration shall be allocated to and among the
respective Transferred Assets and the Shares as set forth in Attachment IV to
this Agreement. Black & ▇▇▇▇▇▇ and Buyer agree that the allocation of the
Exchange Consideration has been negotiated by them and is consistent with the
value of the Transferred Assets and the Shares and in accordance with the
principles of Section 1060 of the Code and the regulations thereunder. Black &
▇▇▇▇▇▇ and Buyer agree that they shall use the allocation of the Exchange
Consideration reflected in Attachment IV to this Agreement in any Tax Returns
filed with any U.S. Tax Authority or other reports that deal with the
Contemplated Transactions and are filed with any U.S. Tax Authority.
Section 2.03 Closing. The closing (the "Closing") of the Contemplated
Transactions shall take place at the offices of Homburger Rechtsanwaelte,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇/▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, on the tenth Business Day
following the satisfaction or waiver (by the party entitled
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to waive the condition) of all conditions to the Closing set forth in Article
IX, or at such other time and place as the parties to this Agreement may agree,
but no later than December 31, 1998. The Closing will occur at 3:00 p.m. on the
Closing Date.
Section 2.04 Adjustments of Exchange Consideration.
(a) Promptly following the Closing Date, but in no event later than 60
days after the Closing Date, Black & ▇▇▇▇▇▇ shall, at its expense, with the
assistance of Buyer prepare and submit to Buyer a combined statement of net
tangible assets setting forth, in reasonable detail, Black & ▇▇▇▇▇▇'▇
calculation of the Net Tangible Assets consistent with the Opening Statement and
in accordance with Note 12 thereto of the Glass Machinery Business as of the
close of business on the day prior to the Closing Date (the "Proposed Final Net
Tangible Asset Amount"). In the event Buyer disputes the correctness of the
Proposed Final Net Tangible Asset Amount, Buyer shall notify Black & ▇▇▇▇▇▇ of
its objections within 45 days after receipt of Black & ▇▇▇▇▇▇'▇ calculation of
the Proposed Final Net Tangible Asset Amount and shall set forth, in writing and
reasonable detail, the reasons for Buyer's objections. If Buyer fails to deliver
such notice of objections within such time, Buyer shall be deemed to have
accepted Black & ▇▇▇▇▇▇'▇ calculation. To the extent Buyer does not object, in
writing and in reasonable detail as required and within the time period
contemplated by this Section 2.04(a) to a matter in the combined statement of
net tangible assets prepared and submitted by Black & ▇▇▇▇▇▇, Buyer shall be
deemed to have accepted Black & ▇▇▇▇▇▇'▇ calculation and presentation in respect
of the matter and the matter shall not be considered to be in dispute. Black &
▇▇▇▇▇▇ and Buyer shall endeavor in good faith to resolve any disputed matters
within 20 days after Black & ▇▇▇▇▇▇'▇ receipt of Buyer's notice of objections.
If they are unable to do so, Black & ▇▇▇▇▇▇ and Buyer shall select an
independent "big five" accounting firm (other than Ernst & Young LLP or
PricewaterhouseCoopers) to resolve the matters in dispute (in a manner
consistent with Section 2.04(b) and with any matters not in dispute), and the
determination of such firm in respect of the correctness of each matter
remaining in dispute shall be conclusive and binding on Black & ▇▇▇▇▇▇ and
Buyer. The Net Tangible Assets of the Glass Machinery Business as of the close
of business on the day prior to the Closing Date, as finally determined pursuant
to this Section 2.04(a) (whether by failure of Buyer to deliver notice of
objection, by agreement of Black & ▇▇▇▇▇▇ and Buyer or by determination of the
independent accountants selected as set forth above), is referred to herein as
the "Final Net Tangible Asset Amount."
(b) The Proposed Final Net Tangible Asset Amount and the Final Net
Tangible Asset Amount shall be determined in accordance with the accounting
principles, policies, practices and methods utilized in the preparation of the
Opening Statement, as disclosed in the notes to the Opening Statement, except as
otherwise set forth in Note 12 to the Opening Statement and in Attachment XVIII
hereto.
(c) If the Final Net Tangible Asset Amount is greater than
$72,665,000], the difference shall be paid to Black & ▇▇▇▇▇▇ by Buyer with
simple interest thereon from the Closing Date to the date of payment at a
floating rate per annum equal to the per annum interest rate announced from time
to time by Citibank, N.A. as its prime rate in effect. If the Final Net Tangible
Asset Amount is less than $72,665,000, the difference shall be paid to Buyer by
Black & ▇▇▇▇▇▇ with
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simple interest thereon from the Closing Date to the date of payment at a
floating rate per annum equal to the per annum interest rate announced from time
to time by Citibank, N.A. as its prime rate in effect. Such payment shall be
made in immediately available funds in U.S. dollars not later than five Business
Days after the determination of the Final Net Tangible Asset Amount by wire
transfer to a bank account designated in writing by the party entitled to
receive the payment.
(d) Black & ▇▇▇▇▇▇ shall make available and shall cause Ernst & Young
LLP to make available, in accordance with reasonable and customary practices and
professional standards and subject to such reasonable conditions as Ernst &
Young LLP shall impose, the books, records, documents and work papers underlying
the preparation and review of the Opening Statement and the calculation of the
Proposed Final Net Tangible Asset Amount. Buyer shall make available and shall
cause PricewaterhouseCoopers to make available, in accordance with reasonable
and customary practices and professional standards and subject to such
reasonable conditions as PricewaterhouseCoopers shall impose, the books,
records, documents and work papers created or prepared by or for Buyer in
connection with the review of the Proposed Final Net Tangible Asset Amount and
the other matters contemplated by Section 2.04(a).
(e) The fees and expenses, if any, of the accounting firm selected to
resolve any disputes between Black & ▇▇▇▇▇▇ and Buyer in accordance with Section
2.04(a) shall be paid one-half by Black & ▇▇▇▇▇▇ and one-half by Buyer.
(f) On the date that the payment due under Section 2.04(c) is due,
Buyer shall pay to Black & ▇▇▇▇▇▇ the sum of $15,344,000 with simple interest
thereon from the Closing Date to the date of payment at a floating rate per
annum equal to the per annum interest rate announced from time to time by
Citibank, N.A. as its prime rate in effect. Such payment shall be made in
immediately available funds in U.S. dollars not later than five (5) Business
Days after the determination of the Final Net Tangible Asset Amount by wire
transfer to a bank account designated in writing by Black & ▇▇▇▇▇▇.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BLACK & ▇▇▇▇▇▇
Section 3.01 Representations and Warranties of Black & ▇▇▇▇▇▇. Black &
▇▇▇▇▇▇ represents and warrants to Buyer as set forth in Exhibit B.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Section 4.01 Representations and Warranties of Buyer. Buyer represents
and warrants to Black & ▇▇▇▇▇▇ as set forth in Exhibit C.
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ARTICLE V
COVENANTS AND AGREEMENTS OF BLACK & ▇▇▇▇▇▇
Section 5.01 Conduct of Business. Except (a) with the written consent
of Buyer (which consent shall not be unreasonably withheld or delayed), (b) as
set forth in Attachment V, (c) as permitted below or required by Applicable Law,
(d) in accordance with the terms and conditions of Contracts in existence on the
date of this Agreement, (e) in accordance with the terms of this Agreement, or
(f) with respect to Excluded Assets and Excluded Liabilities, from the date of
this Agreement until the Closing Date, the Glass Machinery Units shall conduct
the Glass Machinery Business in all material respects in accordance with the
historical and customary operating practices relating to the conduct of the
Glass Machinery Business (to the extent such practices are reasonable commercial
practices) and shall use reasonable efforts to preserve intact the Glass
Machinery Business and the relationships of the Glass Machinery Units with third
parties in connection with the Glass Machinery Business, and the Glass Machinery
Units shall not:
(i) make any capital expenditure, or group of related capital
expenditures relating to the Glass Machinery Business in excess of
$500,000;
(ii) sell or dispose of more than an aggregate of $500,000 of
assets that (1) would constitute Transferred Assets if owned, held or
used by any Seller of Transferred Assets on the Closing Date or (2) are
owned on the date of this Agreement by a Glass Machinery Share Company
(in either case, other than the sale of Inventory (including obsolete
Inventory whether or not in the ordinary course of business), and any
sale made in the ordinary course of business);
(iii) sell, transfer, license or otherwise dispose of, any
Intellectual Property used exclusively in the Glass Machinery Business
other than implied licenses of Intellectual Property in connection with
the sale of products of the Glass Machinery Business;
(iv) terminate the coverage of any policies of title,
liability, fire, workers' compensation, property and any other form of
insurance covering the operations of the Glass Machinery Business,
except where the termination could not reasonably be expected to have a
Material Adverse Effect on the Glass Machinery Business;
(v) settle any lawsuit or claim if such settlement imposes a
material continuing non-monetary obligation on the Glass Machinery
Business, any of the Transferred Assets or any Glass Machinery Share
Company;
(vi) grant any new or modified severance or termination
arrangement or increase or accelerate in any material respect any
payable under the severance or termination pay policies in effect on
the date of this Agreement with respect to any Transferred Employee;
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(vii) except as otherwise may be permitted or required by this
Agreement or Applicable Law, adopt or amend in any material respect any
Employee Plan or Benefit Arrangement in respect of any Transferred
Employee or, other than compensation increases in the ordinary course
of business, with respect to any Transferred Employee at a level of
Vice President or above increase the compensation or fringe of such
Transferred Employee or pay any benefit not required by any Employee
Plan or Benefit Arrangement with respect to such Transferred Employee;
or
(viii) enter into any new collective bargaining agreements or
extend any existing collective bargaining agreement except that Emhart
Glass Machinery (U.S.) Inc. may enter into a new collective bargaining
agreement with the union that represents the unionized employees of the
Hartford Division substantially on the terms set forth on Attachment V.
Section 5.02 Access to Information; Confidentiality.
(a) Except as may be necessary to comply with any Applicable Laws and
subject to any reasonably applicable privileges (including, without limitation,
the attorney-client privilege), from the date of this Agreement until the
Closing Date, the Glass Machinery Units shall (i) give Buyer and its
Representatives reasonable access to the records of the Glass Machinery Units
relating to the Glass Machinery Business during normal business hours and upon
reasonable prior notice, (ii) give Buyer and its Representatives reasonable
access to any facilities the possession of which will be transferred, directly
or indirectly, to Buyer at Closing during normal business hours and upon
reasonable prior notice for the purpose of Buyer's conduct of an environmental
audit of such facilities or documentary due diligence, (iii) furnish to Buyer
and its Representatives such financial and operating data and other information
relating to the Glass Machinery Business as Buyer may reasonably request and
(iv) instruct the employees and Representatives of the Glass Machinery Units to
provide reasonable cooperation to Buyer in its investigation of the Glass
Machinery Business. Without limiting the generality of the foregoing, subject to
the limitations set forth in the first sentence of this Section 5.02(a), from
the date of this Agreement to the Closing Date Black & ▇▇▇▇▇▇ shall (i) use
reasonable commercial efforts to enable Buyer and its Representatives to
conduct, at Buyer's expense, business and financial reviews, investigations and
studies as to the operation of the Glass Machinery Business, including any tax,
operating or other efficiencies that may be achieved and (ii) give Buyer and its
Representatives access upon reasonable request to information relating to the
Glass Machinery Business of the type and with the same level of detail as in the
ordinary course of business currently is being made available to the president
or chief financial officer of the Glass Machinery Business. Notwithstanding the
foregoing, neither Buyer nor its Representatives shall have access to personnel
records of any the Glass Machinery Units relating to individual performance or
evaluation records, medical histories or other information that in Black &
▇▇▇▇▇▇'▇ good faith opinion is sensitive or the disclosure of which could
subject any the Glass Machinery Units to risk of liability.
(b) For a period of two years after the Closing Date, Black & ▇▇▇▇▇▇
and its Subsidiaries will treat and hold as confidential, any confidential
information relating primarily to the operations or affairs of the Glass
Machinery Business. For a period of five years after the Closing Date, Black &
▇▇▇▇▇▇ and its Subsidiaries will not disclose any confidential information
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that includes technical (including without limitation Intellectual Property) or
marketing information to a Competing Business for a period of five (5) years
after the Closing Date. In the event any such Person is requested or required
(by oral or written request for information or documents in any legal
proceeding, interrogatory, subpoena, civil investigative demand or similar
process or by Applicable Law) to disclose any such confidential information,
then Black & ▇▇▇▇▇▇ shall notify Buyer promptly of the request or requirement so
that Buyer, at its expense, may seek an appropriate protective order or waive
compliance with this Section 5.02(b). If, in the absence of a protective order
or receipt of a waiver hereunder, any such Person is, on the advice of counsel,
compelled to disclose such confidential information such Person may so disclose
the confidential information, provided that such Person shall use its reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded to such confidential information. The provisions of this Section
5.02(b) shall not be deemed to prohibit the disclosure of confidential
information relating to the operations or affairs of the Glass Machinery
Business by Black & ▇▇▇▇▇▇ or any of its Subsidiaries to the extent reasonably
required (i) to prepare or complete any required Tax Returns or financial
statements, (ii) in connection with audits or other proceedings by or on behalf
of a Governmental Authority, (iii) in connection with any insurance or claims,
(iv) to the extent necessary to comply with any Applicable Laws, (v) to provide
services to any Buyer Company in accordance with the terms and conditions of any
of the Transaction Documents or (vi) in connection with any other similar
administrative functions in the ordinary course of business. Notwithstanding the
foregoing, the provisions of this Section 5.02(b) shall not apply to information
that (i) is or becomes publicly available other than as a result of a disclosure
by Black & ▇▇▇▇▇▇ or any of its Subsidiaries, (ii) is or becomes available to
Black & ▇▇▇▇▇▇ or any of its Subsidiaries on a non-confidential basis from a
source that, to Black & ▇▇▇▇▇▇'▇ knowledge, is not prohibited from disclosing
such information by a legal, contractual or fiduciary obligation or (iii) is or
has been independently developed by a Black & ▇▇▇▇▇▇ or any of its Subsidiaries
(other than solely for the Glass Machinery Business) after the Closing Date.
Section 5.03 Change of Lockbox Accounts. Immediately after the Closing,
Black & ▇▇▇▇▇▇ shall take such steps as Buyer may reasonably request to cause
Buyer to be substituted as the sole party having control over any lockbox or
similar bank account maintained exclusively by the Glass Machinery Business to
which customers of the Glass Machinery Business directly make payments in
respect of the Glass Machinery Business or to direct the bank at which any such
lockbox or similar account is maintained to transfer any payments made thereto
to an account established by Buyer.
Section 5.04 Access to Information; Cooperation After Closing. On and
after the Closing Date and subject to any applicable privileges (including,
without limitation, the attorney-client privilege), Black & ▇▇▇▇▇▇ shall, and
shall cause each of its Subsidiaries to, at their expense (i) afford Buyer and
its Representatives reasonable access upon reasonable prior notice during normal
business hours, to all employees, offices, properties, agreements, records and
books retained by Black & ▇▇▇▇▇▇ and its Subsidiaries to the extent relating to
the conduct of the Glass Machinery Business prior to the Closing and (ii)
cooperate fully with Buyer with respect to matters relating to the conduct of
the Glass Machinery Business prior to the Closing, including, without
limitation, in the defense or pursuit of any Transferred Asset or Assumed
Liability or any
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claim or action that relates to occurrences involving the Glass Machinery
Business prior to the Closing Date.
Section 5.05 Maintenance of Insurance Policies. Except as otherwise
provided in Exhibit D, on and after the date of this Agreement and until the
Closing Date, Black & ▇▇▇▇▇▇ shall not take or fail to take any action if such
action or inaction, as the case may be, would adversely affect the applicability
of any insurance (including reinsurance) in effect on the date of this Agreement
that covers all or any part of (i) the assets that would constitute Transferred
Assets if owned, held or used by any Seller of Transferred Assets on the Closing
Date, (ii) the assets (other than Excluded Assets) of a Glass Machinery Share
Company, (iii) the Glass Machinery Business or (iv) the Transferred Employees.
Except as otherwise provided in Exhibit D or as may otherwise be agreed in
writing by the parties, Black & ▇▇▇▇▇▇ shall not have any obligation to maintain
the effectiveness of any such insurance policy after the Closing Date or to make
any monetary payment in connection with any such policy.
Section 5.06 Noncompetition.
(a) Black & ▇▇▇▇▇▇ covenants and agrees, as an inducement to Buyer to
enter into this Agreement and to consummate the Contemplated Transactions, that
for a period of five years following the Closing Date neither Black & ▇▇▇▇▇▇ nor
any of its Subsidiaries (for so long but only for so long as it remains a
Subsidiary of Black & ▇▇▇▇▇▇) will, directly or indirectly, carry on or
participate in the ownership, management or control of any business enterprise
that is engaged in the Glass Machinery Business (a "Competing Business").
(b) Nothing contained in this Section 5.06 shall limit or restrict the
right of Black & ▇▇▇▇▇▇ or any of its subsidiaries to hold and make investments
in securities of any Person that has securities listed on a national securities
exchange or admitted to trading privileges thereon or actively traded in a
generally recognized over-the-counter market, provided that the aggregate equity
interest therein of Black & ▇▇▇▇▇▇ and any of its Subsidiaries does not exceed
five percent of the outstanding shares or interests in such Person at the time
of their investment therein.
(c) Notwithstanding any provisions of this Section 5.06 to the
contrary, if Black & ▇▇▇▇▇▇ or any of its Subsidiaries acquires the assets or
securities of any Person that is engaged in a Competing Business, such
acquisition shall not be deemed to be in violation of this Section 5.06,
provided that (A) (i) at the time of acquisition the Competing Business
represents less than one-third of the gross revenues of the acquired Person for
the acquired Person's most recently completed fiscal year and (ii) Black &
▇▇▇▇▇▇ and its Subsidiaries use reasonable commercial efforts to divest the
operations of such Competing Business subsequent to such acquisition, or (B) at
the time of acquisition the Competing Business represents less than five percent
of the gross revenues of the acquired Person for the acquired Person's most
recently completed fiscal year.
(d) Black & ▇▇▇▇▇▇ recognizes and agrees that a breach by it or any of
its Subsidiaries of any of the covenants and agreements in this Section 5.06
could cause irreparable harm to Buyer, that Buyer's remedies at law in the event
of such breach would be inadequate, and that, accordingly, in the event of such
breach a restraining order or injunction or both may be issued
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against Black & ▇▇▇▇▇▇ or any of its Subsidiaries in addition to any other
rights and remedies that may be available to Buyer under Applicable Law. If this
Section 5.06 is more restrictive than permitted by the Applicable Laws of the
jurisdiction in which Buyer seeks enforcement hereof, this Section 5.06 shall be
limited to the extent required to permit enforcement under such Applicable Laws.
Section 5.07 Third Party's Consent and Notification to Third Parties.
Black & ▇▇▇▇▇▇ shall undertake all actions which are reasonably required to
obtain the consents from, or to make the notifications to be made to, third
parties which are listed in Schedule B.06.
ARTICLE VI
COVENANTS AND AGREEMENTS OF BUYER
Section 6.01 Confidentiality. Buyer agrees that all information
provided or otherwise made available in connection with the Contemplated
Transactions, to Buyer or any of its Representatives shall be treated as if
provided under the Confidentiality Agreement which shall continue in effect for
such purpose following the signing of this Agreement. This confidentiality
undertaking shall terminate (a) upon Closing with respect to all information
regarding the Glass Machinery Business and (b) on the second anniversary of the
Closing with respect to all other information provided or otherwise made
available in connection with the Contemplated Transactions to Buyer or any of
its Representatives. Nothing in this Section 6.01, however, shall limit or
otherwise restrict the applicability of any other confidentiality or similar
provisions included in the Transaction Documents.
Section 6.02 Provision and Preservation of and Access to Certain
Information; Cooperation.
(a) Prior to the Closing Date, Buyer shall provide to Black & ▇▇▇▇▇▇
promptly upon its receipt thereof copies of all environmental audit and similar
reports with respect to facilities the possession of which will be transferred,
directly or indirectly, to Buyer at the Closing. Buyer shall provide to Black &
▇▇▇▇▇▇ a copy of all sampling results, boring logs, analyses and other data and
reports regarding any environmental review conducted by Buyer immediately upon
obtaining them.
(b) On and after the Closing Date, Buyer shall preserve all books and
records of the Glass Machinery Business for a period of six years commencing on
the Closing Date (or in the case of books and records relating to Tax,
employment and employee matters, for so long as required by Applicable Law), and
thereafter for an additional four years, not destroy or dispose of such records
without giving notice to Black & ▇▇▇▇▇▇ of such pending disposal and offering
Black & ▇▇▇▇▇▇ such records. In the event Black & ▇▇▇▇▇▇ has not requested such
materials within 90 days following the receipt of notice from Buyer, Buyer may
proceed to destroy or dispose of such materials without any liability.
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(c) From and after the Closing Date and subject to any applicable
privileges (including, without limitation, the attorney-client privilege), Buyer
shall at its expense (i) afford Black & ▇▇▇▇▇▇ and its Representatives
reasonable access upon reasonable prior notice during normal business hours, to
all employees, offices, properties, agreements, records, books and affairs of
Buyer, and provide copies of such information concerning the Glass Machinery
Business as Black & ▇▇▇▇▇▇ may reasonably request for any proper purpose,
including, without limitation, in connection with the matters contemplated by
Section 2.04, pre-closing hazardous waste manifests, the preparation of any Tax
Returns, in connection with any judicial, quasi-judicial, administrative, Tax,
audit or arbitration proceeding, in connection with the preparation of any
financial statements or reports and in connection with the defense of any claims
or allegations that relate to or may relate to Excluded Liabilities and (ii)
cooperate fully with Black & ▇▇▇▇▇▇ for any proper purpose, including, without
limitation, the defense of or pursuit of any Excluded Liability, Excluded Asset
or Indemnified Claim, or any claim or action that relates to an Excluded
Liability, Excluded Asset or Indemnified Claim.
Section 6.03 Insurance; Financial Support Arrangements.
(a) Buyer acknowledges and agrees that as of the Closing Date, neither
the Buyer Companies, the Glass Machinery Share Companies, the Glass Machinery
Business, any property owned or leased by any of the foregoing nor any of the
directors, officers, employees (including, without limitation, the Transferred
Employees) or agents of any of the foregoing will be insured under any insurance
policies maintained by Black & ▇▇▇▇▇▇ or any of its Affiliates, except (i) in
the case of certain claims made policies, to the extent that a claim has been
reported as of the Closing Date, (ii) in the case of a policy that is an
occurrence policy, to the extent the accident, event or occurrence that results
in an insurable loss occurs prior to the Closing Date and has been, is or will
be reported or noticed to the respective carrier by a Glass Machinery Unit or
Buyer in accordance with the requirements of such policies (which claims Black &
▇▇▇▇▇▇ shall, at Buyer's cost and expense, pursue diligently on Buyer's behalf
and the net proceeds of which claims (except to the extent they relate to
Excluded Liabilities) shall be remitted promptly to Buyer upon receipt thereof),
and (iii) as otherwise provided in Exhibit D or agreed to in writing by the
parties. Except as otherwise provided in Exhibit D or as otherwise may be agreed
to in writing by the parties, from and after the Closing Date, Black & ▇▇▇▇▇▇
shall have no obligation of any kind to maintain any form of insurance covering
any of the Glass Machinery Units or all or any part of the Transferred Assets,
the Glass Machinery Business or the Transferred Employees, provided that Black &
▇▇▇▇▇▇ shall reasonably cooperate with the Buyer to permit the Glass Machinery
Business to have the benefit of reasonable uninterrupted insurance coverage.
(b) From and after the Closing Date, Buyer agrees to reimburse Black &
▇▇▇▇▇▇ within 30 days of receipt of an invoice for any self insurance,
retention, deductible, retrospective premium, cash payment for reserves
calculated or charged on an incurred loss basis and similar items, including but
not limited to associated administrative expenses and allocated loss adjustment
or similar expenses (collectively, "Insurance Liabilities") allocated to the
Glass Machinery Business by Black & ▇▇▇▇▇▇ and Black & ▇▇▇▇▇▇ agrees to pay to
Buyer any refunds or credits with respect to such items on a basis consistent
with past practices resulting from or arising under any and all current or
former insurance policies maintained by Black & ▇▇▇▇▇▇ or
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any of its Affiliates to the extent that (i) such Insurance Liabilities relate
to or arise out of Assumed Liabilities, liabilities (other than Excluded
Liabilities) of a Glass Machinery Share Company or any activities of Buyer, (ii)
relate to a period prior to the Closing and (iii) the past practices reasonably
conform with arms' length principles. Buyer agrees that, to the extent any of
the insurers under the insurance policies, in accordance with the terms of the
insurance policies, requests or requires collateral, deposits or other security
to be provided with respect to claims made against such insurance policies
relating to or arising from such Insurance Liabilities, Buyer shall provide the
collateral, deposits or other security or, upon request of Black & ▇▇▇▇▇▇, will
replace any collateral, deposits or other security provided by Black & ▇▇▇▇▇▇ or
any of its Affiliates.
(c) Buyer agrees that, for a period of six years commencing on the
Closing Date, to the extent it maintains product liability or similar insurance
coverage, Buyer will (at Black & ▇▇▇▇▇▇'▇ cost to the extent of any additional
cost therefor, provided that, in the event there will be such a cost, Buyer will
give Black & ▇▇▇▇▇▇ a reasonable period of time to determine whether it desires
to incur such cost before Buyer commits to such coverage with respect to Black &
▇▇▇▇▇▇) include Black & ▇▇▇▇▇▇ and its Affiliates as additional insureds/loss
payees on any such policies in respect of which Black & ▇▇▇▇▇▇ or its Affiliates
has or may have an insurable interest with respect to the Glass Machinery
Business, the Transferred Assets, any of the Assumed Liabilities or any
facilities the possession of which will be transferred, directly or indirectly,
to Buyer at the Closing.
(d) Buyer agrees that, not later than December 31, 1998, and in a
manner reasonably satisfactory to Black & ▇▇▇▇▇▇, Buyer shall in good faith seek
to release Black & ▇▇▇▇▇▇ and its Affiliates from all obligations under all
Financial Support Arrangements maintained by Black & ▇▇▇▇▇▇ or any of its
Affiliates in connection with the Glass Machinery Business; provided that this
obligation to release shall extend only to Financial Support Arrangements which
are listed in paragraph (a)(v) of Schedule B.12.
(e) If, at any time after the Closing Date, (i) any amounts are drawn
on or paid under any Financial Support Arrangement referred to in Section
6.03(d) where Black & ▇▇▇▇▇▇ or any of its Affiliates is obligated to reimburse
the Person making such payment or (ii) Black & ▇▇▇▇▇▇ or any of its Affiliates
pays any amounts under, or any fees, costs or expenses relating to, any such
Financial Support Arrangement, Buyer shall pay Black & ▇▇▇▇▇▇ such amounts
promptly after receipt from Black & ▇▇▇▇▇▇ of notice thereof accompanied by
written evidence of the underlying payment obligation.
(f) In the event that Buyer fails to ensure that Black & ▇▇▇▇▇▇ and its
Affiliates are unconditionally released from all obligations under the Financial
Support Arrangements referred to in Section 6.03(d) not later than December 31,
1998, Buyer shall either (i) promptly deposit with Black & ▇▇▇▇▇▇ cash in an
amount equal to the aggregate principal or stated amount, as may be applicable,
of such Financial Support Arrangements not so released or (ii) provide back-up
letters of credit issued by one or more commercial banks reasonably satisfactory
to Black & ▇▇▇▇▇▇, payable to Black & ▇▇▇▇▇▇ in such aggregate principal or
stated amount and otherwise in form and substance reasonably satisfactory to
Black & ▇▇▇▇▇▇ with respect to such Financial
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Support Arrangements. Any cash deposited with Black & ▇▇▇▇▇▇ in accordance with
clause (i) shall be held by Black & ▇▇▇▇▇▇ in a segregated interest-bearing
account and shall be used by Black & ▇▇▇▇▇▇ solely to satisfy its payment
obligations in respect of such Financial Support Arrangements, and the unused
portion of any cash (including interest) relating to a Financial Support
Arrangement shall be returned to Buyer promptly following the release of Black &
▇▇▇▇▇▇ and its Affiliates with respect to, or any other termination of, the
Financial Support Arrangement.
Section 6.04 Use of Intellectual Property. Buyer acknowledges and
agrees that except as permitted by the Transaction Documents, Buyer shall not
use, and Buyer shall cause its Affiliates not to use, any trademark, logo or
tradename of Black & ▇▇▇▇▇▇ or any Affiliate of Black & ▇▇▇▇▇▇ (other than those
(i) transferred to Buyer under the terms of the Intellectual Property Assignment
Agreements or (ii) owned by a Glass Machinery Share Company that do not
constitute an Excluded Asset) or any trademarks, logos or trade names that are
confusingly similar thereto or that are a translation or transliteration thereof
into any language or alphabet.
Section 6.05 Certain Environmental Investigations.
(a) Buyer agrees that, if Buyer decides to conduct prior to Closing an
environmental audit or similar review of the Glass Machinery Business that
involves testing, drilling or sampling at any facility the possession of which
is contemplated to be transferred, directly or indirectly, to a Buyer Company at
Closing, Buyer will so advise Black & ▇▇▇▇▇▇ and will give Black & ▇▇▇▇▇▇
sufficient prior written notice to enable Black & ▇▇▇▇▇▇'▇ Representatives to be
present during any such testing, drilling or sampling, and to review and comment
on any work plans related to such audit or review. Except as specifically
provided in this Section 6.05(a), the scope of such audit shall be at the sole
discretion of Buyer. Buyer further agrees to arrange for split samples to be
taken in connection with any such audit or review. Buyer agrees that it will
conduct such testing, drilling, or sampling, including disposal of all materials
associated with such activities, such as drill cuttings, wastewater, and
sampling equipment, at Buyer's sole cost and expense and in accordance with all
Applicable Laws, including Environmental Laws. If the Closing contemplated by
the Transaction Documents is not consummated for any reason, Buyer agrees to
restore each facility at which any such testing, drilling or sampling was
conducted to its condition prior to the commencement of Buyer's environmental
audit or similar review.
(b) All information obtained from Buyer's environmental review
(including, but not limited to, environmental Phase I, II or other reports,
analytical/sampling data and reports) (i) shall be kept confidential pursuant to
Section 6.01; (ii) shall not be provided to any Person other than Black &
▇▇▇▇▇▇; and (iii) shall be provided to Black & ▇▇▇▇▇▇ prior to Closing. In the
event that Buyer's environmental review discloses conditions at any of Black &
▇▇▇▇▇▇'▇ facilities that may require notice to a Governmental Authority prior to
Closing, Black & ▇▇▇▇▇▇ shall determine what reporting, if any, is necessary and
shall conduct any such reporting.
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ARTICLE VII
COVENANTS AND AGREEMENTS OF THE PARTIES
Section 7.01 Further Assurances. Subject to the terms and conditions of
this Agreement, each party shall use reasonable commercial efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary or desirable under Applicable Laws to consummate the Contemplated
Transactions. Black & ▇▇▇▇▇▇ and Buyer shall execute and deliver, and shall
cause the Sellers and Buyer Companies, as appropriate or required and as the
case may be, to execute and deliver such other documents, certificates,
agreements and other writings and to take such other actions as may be necessary
or desirable to consummate or implement the Contemplated Transactions. Except as
otherwise expressly set forth in the Transaction Documents, nothing in this
Agreement shall require Black & ▇▇▇▇▇▇, any of its Affiliates, any of the Buyer
Companies to make any payments in order to (i) obtain any consents or approvals
necessary or desirable in connection with the consummation of the Contemplated
Transactions, or (ii) cure any breach of a representation or warranty by Black &
▇▇▇▇▇▇ prior to the Closing.
Section 7.02 Certain Filings; Consents. Black & ▇▇▇▇▇▇ and Buyer shall
cooperate with one another (i) in determining whether any action by or in
respect of, or filing with, any Governmental Authority is required, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any material Contracts, in connection with the consummation of the
Contemplated Transactions and (ii) subject to the terms and conditions of this
Agreement, in taking such actions or making any such filings, furnishing
information required in connection therewith and seeking timely to obtain any
such actions, consents, approvals or waivers.
Section 7.03 Public Announcements. Prior to the Closing, Black & ▇▇▇▇▇▇
and Buyer shall consult with each other before issuing any press release or
making any public statement with respect to this Agreement or the Contemplated
Transactions and, except as may be required by Applicable Law or any listing
agreement with, or any listing rules of, any national or international
securities exchange, shall not issue any such press release or make any such
public statement prior to such consultation.
Section 7.04 Intellectual Property.
(a) Buyer acknowledges and agrees that Buyer Companies and the Glass
Machinery Share Companies shall hold all Intellectual Property constituting part
of the Transferred Assets or assets (other than the Excluded Assets) of the
Glass Machinery Companies, as the case may be, subject to any licenses thereof
granted by the Glass Machinery Units prior to the date of this Agreement or
other than implied licenses of Intellectual Property in connection with the sale
of products of the Glass Machinery Business or with the written consent of Buyer
prior to the Closing Date.
(b) Buyer further acknowledges and agrees that the transfer of
Intellectual Property constituting Transferred Assets to Buyer Companies shall
not affect the right of the Sellers to use,
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disclose or otherwise freely deal with any know-how, trade secrets and other
technical information not constituting Transferred Assets.
Section 7.05 Filings. Black & ▇▇▇▇▇▇ and Buyer shall take all actions
necessary (without payment of money, commencement of litigation, the assumption
of any material obligation or the entering of any agreement to divest or hold
separate any assets) or appropriate to cause the prompt expiration or
termination of any applicable waiting period under the HSR Act or similar filing
requirements in respect of the Contemplated Transactions, including, without
limitation, complying as promptly as practicable with any requests for
additional information.
Section 7.06 Legal Privileges. Black & ▇▇▇▇▇▇ and Buyer acknowledge and
agree that all attorney-client, work product and other legal privileges that may
exist with respect to the Glass Machinery Business, the Transferred Assets,
Excluded Assets, Assumed Liabilities or Excluded Liabilities shall, from and
after the Closing Date, be deemed joint privileges of Black & ▇▇▇▇▇▇ and Buyer.
Both Black & ▇▇▇▇▇▇ and Buyer shall use all reasonable efforts after the Closing
Date to preserve all such privileges and neither Black & ▇▇▇▇▇▇ nor Buyer shall
knowingly waive any such privilege without the prior written consent of the
other party (which consent shall not be unreasonably withheld or delayed).
Section 7.07 Taxes.
(a) Except as provided in Section 7.07(d), Black & ▇▇▇▇▇▇ and its
Affiliates shall pay and be responsible for, and shall be entitled to all
refunds and credits of, (i) Income Taxes with respect to the Glass Machinery
Companies and Glass Machinery Business for any Pre-Closing Period, including any
liability for Income Taxes arising out of the inclusion of any of the Glass
Machinery Companies in any Consolidated Returns, (ii) all Taxes with respect to
an Affiliated Group for all taxable periods whatsoever, and (iii) Taxes imposed
on any Seller with respect to gain or other income from its sale of Transferred
Assets or Shares hereunder. Black & ▇▇▇▇▇▇ shall be responsible for the timely
preparation and filing of all Tax Returns for the Taxes described in the
immediately preceding sentence. In the event that a reserve with respect to any
Taxes for which Black & ▇▇▇▇▇▇ is responsible under this Section 7.07(a) is
included in or taken into account in the calculation or determination of the
Final Net Tangible Asset Amount, Buyer shall reimburse Black & ▇▇▇▇▇▇ for the
amount of such reserve promptly upon presentation of an invoice therefor.
(b) Except as provided in Section 7.07(d), Buyer shall pay and be
responsible for, and shall be entitled to all refunds and credits of, all Taxes
with respect to the Glass Machinery Share Companies and the Glass Machinery
Business for any Post-Closing Period. Buyer shall be responsible for the timely
preparation and filing of all Tax Returns of the Glass Machinery Share Companies
and the Glass Machinery Business (i) for any Post-Closing Period, and (ii)
required to be filed by any of the Glass Machinery Share Companies (except as a
member of an Affiliated Group) and the Glass Machinery Business after the
Closing Date.
(c) The parties hereto will, to the extent permitted by Applicable Law,
elect or otherwise agree with the relevant Tax Authority to treat the portion of
each Bridge Period before the Closing Date (a "Seller Period") for all purposes
as a short taxable period ending as of the
-16-
close of business on the day before the Closing Date and such short taxable
period shall be treated as a Pre-Closing Period for purposes of this Agreement
and the portion of the Bridge Period on and after the Closing Date (the "Buyer
Period") shall be treated as a Post-Closing Period for purposes of this
Agreement.
(d) In any case where Applicable Law does not permit the election or
agreement described in Section 7.07(c) to be made, then, for purposes of this
Agreement and subject to Section 7.07(f), Income Taxes for the Bridge Period
shall be allocated between the Seller Period and the Buyer Period using an
interim-closing-of-the-books method assuming that such taxable period ended at
the close of business on the Closing Date, except that exemptions, allowances or
deductions that are calculated on an annual basis (such as the deduction for
depreciation) shall be apportioned on a per diem basis. Buyer shall be
responsible for the timely preparation and filing of all Tax Returns and the
payment of all Income Taxes due, if any, of the Glass Machinery Share Companies
for any Bridge Period that does not terminate on the Closing Date, pursuant to
Section 7.07(c). Within thirty (30) days of Buyer providing Black & ▇▇▇▇▇▇ with
a copy of any such Tax Return and a copy of Buyer's detailed calculation of the
Income Taxes attributable to the Seller Period determined in accordance with the
first sentence of this Section 7.07(d), Black & ▇▇▇▇▇▇ shall pay to Buyer such
Income Taxes attributable to the Seller Period by wire transfer of immediately
available funds to the account designated by Buyer.
(e) Other than as provided in Section 7.07(f), Black & ▇▇▇▇▇▇ shall be
entitled to the benefit of any refunds or credits of any Taxes for which Black &
▇▇▇▇▇▇ is responsible under Section 7.07(a) or 7.07(d) and Buyer shall, promptly
after the receipt thereof, remit to Black & ▇▇▇▇▇▇ any such Tax refund received
by any Buyer Company or any Glass Machinery Share Company after the Closing. If
any adjustment shall be made to any Income Tax Return relating to a Glass
Machinery Share Company for any Pre-Closing Period which results in any Tax
benefit to Buyer or a Glass Machinery Share Company for any Post-Closing Period,
Black & ▇▇▇▇▇▇ shall be entitled to the benefit of such Income Tax benefit and
Buyer shall pay to Black & ▇▇▇▇▇▇ the amount of such Income Tax benefit at such
time or times as and to the extent that Buyer or a Glass Machinery Shares
Company realizes such benefit through a refund of Tax or reduction in the amount
of Taxes which such Person would otherwise have had to pay if such adjustment
had not been made. Buyer shall be entitled to the benefit of any refunds or
credits of Taxes for which Buyer is responsible under Section 7.07(b) or 7.07(d)
and Black & ▇▇▇▇▇▇ shall, promptly after the receipt thereof, remit to Buyer any
such Tax refund received by Black & ▇▇▇▇▇▇ or any of its Affiliates after the
Closing. If any adjustment shall be made to any Tax Return relating to a Glass
Machinery Share Company for any Post-Closing Period which results in any Income
Tax benefit to Black & ▇▇▇▇▇▇ or any Affiliate of Black & ▇▇▇▇▇▇ for any
Pre-Closing Period, such Glass Machinery Share Company shall be entitled to the
benefit of such Income Tax benefit, and Black & ▇▇▇▇▇▇ shall pay to Buyer on
behalf of such Glass Machinery Share Company the amount of such Income Tax
benefit at such time or times as and to the extent that Black & ▇▇▇▇▇▇ or any
Affiliate of Black & ▇▇▇▇▇▇ realizes such benefit through a refund of Income Tax
or reduction in the amount of Income Taxes which Black & ▇▇▇▇▇▇ or any such
Affiliate would otherwise have had to pay if such adjustment had not been made.
-17-
(f) Any loss or credit of any Glass Machinery Share Company arising in
any Post-Closing Period that is available as a carryback to a Pre-Closing Period
("Buyer's Carryback") shall be for the benefit of the appropriate Glass
Machinery Share Company (provided, however, that any loss or credit of a Glass
Machinery Share Company arising in any Post-Closing Period that may be either
carried back or carried forward at the Glass Machinery Share Company's option,
may, in Buyer's sole discretion and judgment, be carried back (and be subject to
the provisions of this subsection) or be carried forward). Any loss or credit of
any Glass Machinery Share Company arising in any Pre-Closing Period that is
available as a carryforward to a Post-Closing Period ("Seller's Carryforward")
shall be for the benefit of Black & ▇▇▇▇▇▇. Black & ▇▇▇▇▇▇ shall pay to the
appropriate Glass Machinery Share Company or to Buyer on behalf of such Glass
Machinery Share Company the amount of any Income Tax benefit realized with
respect to any Buyer's Carryback at such time or times and to the extent that
Black & ▇▇▇▇▇▇ or any Affiliate of Black & ▇▇▇▇▇▇ realizes such benefit through
a refund of Income Taxes or reduction in the amount of Income Taxes which Black
& ▇▇▇▇▇▇ or any such Affiliate would otherwise have had to pay but for such
carryback. Buyer or the appropriate Glass Machinery Share Company shall pay to
Black & ▇▇▇▇▇▇ the amount of any Income Tax benefit realized with respect to any
Seller's Carryforward at such time or times and to the extent of the amount of
Income Taxes that the Glass Machinery Share Company, Buyer or any Affiliate
thereof would otherwise have had to pay but for such carryforward. In the event
that, pursuant to this Section 7.07(f), Black & ▇▇▇▇▇▇ pays to Buyer, a Glass
Machinery Share Company or an Affiliate thereof, the amount of any such Income
Tax benefit, Buyer shall indemnify and hold Black & ▇▇▇▇▇▇ harmless from any
subsequent increase in Black & ▇▇▇▇▇▇'▇ or any of Black & ▇▇▇▇▇▇'▇ Affiliates'
Income Tax liability arising out of a subsequent reduction of the amount of any
Buyer's Carryback arising from audit, adjustment or otherwise. In the event
that, pursuant to this Section 7.07(f), Buyer or a Glass Machinery Share Company
pays to Black & ▇▇▇▇▇▇ or an Affiliate of Black & ▇▇▇▇▇▇, the amount of any such
Income Tax benefit, Black & ▇▇▇▇▇▇ shall indemnify and hold Buyer harmless from
any subsequent increase in Buyer's, any of a Glass Machinery Company's or any of
their Affiliates' Income Tax liability arising out of a subsequent reduction in
the amount of any Seller's Carryforward arising from audit, adjustment or
otherwise.
(g) Buyer shall have exclusive control over and responsibility to
conduct any Contest for a Post-Closing Period and for a Bridge Period if the
Contest for a Bridge Period relates solely to the Buyer; provided, however, that
Buyer shall not enter into any agreement in compromise or settlement of such
Contest which could affect a Pre-Closing Period or a Seller Period without the
written consent of Seller. Black & ▇▇▇▇▇▇ shall have exclusive control over and
responsibility to conduct any Contest for a Pre-Closing Period and for a Bridge
Period if the Contest for a Bridge Period relates solely to the Seller Period;
provided, however, that Black & ▇▇▇▇▇▇ shall not enter into any agreement in
compromise or settlement of such Contest which could affect a Post-Closing
Period or a Buyer Period without the written consent of Buyer. In any Contest
controlled by Black & ▇▇▇▇▇▇, Buyer will take, and will cause its Affiliates to
take, such action as Black & ▇▇▇▇▇▇ may by written notice reasonably request in
connection with such Contest (including the payment of a Tax preparatory to
filing a claim for refund of such Tax; provided, that Black & ▇▇▇▇▇▇ shall first
pay the amount of such Tax to Buyer). Buyer and Seller agree to jointly control
and conduct any Contest for a Bridge Period that relates to both the Seller
Period and the Buyer Period. Seller, Seller's Parent and Buyer agree to
cooperate fully
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with each other with respect to defending or answering any such Contest and to
provide each other with all materials, information and documents as reasonably
requested by the other. Neither Buyer, Seller, nor Seller's Parent shall be
liable for any portion of any settlement of any Contest for a Bridge Period that
relates to both the Seller Period and the Buyer Period effected without its
written consent, provided such consent was not unreasonably withheld.
(h) Buyer shall notify Black & ▇▇▇▇▇▇ in writing promptly upon receipt
by any Glass Machinery Share Company of notice of any Contest or assessment
relating thereto for a Pre-Closing Period or a Bridge Period. Failure of Buyer
to so notify Black & ▇▇▇▇▇▇ shall not relieve Black & ▇▇▇▇▇▇ from any liability
under this Section 7.07, except to the extent it is proven that Black & ▇▇▇▇▇▇
suffered actual prejudice in connection with or in defending against a Contest.
Black & ▇▇▇▇▇▇ shall notify Buyer in writing promptly upon receipt by Black &
▇▇▇▇▇▇ of notice of any Contest or assessment relating to a Post-Closing Period
or a Bridge Period. Failure of Black & ▇▇▇▇▇▇ to so notify Buyer shall not
relieve Buyer from any liability under this Section 7.07, except to the extent
it is proven that Buyer suffered actual prejudice in connection with or in
defending against a Contest.
Section 7.08 Currency Hedge Contracts.
(a) In the ordinary course of their business certain of the Glass
Machinery Units enter into forward currency exchange contracts ("Hedge
Contracts") with Black & ▇▇▇▇▇▇ to hedge the currency exchange risk of such
Glass Machinery Unit transacting business in a currency other than the currency
of its primary operations (i.e., its functional currency). As of June 26, 1998,
the Glass Machinery Units have Hedge Contracts with Black & ▇▇▇▇▇▇ as listed on
Attachment VI.
(b) From the date hereof to the Closing Date, Black & ▇▇▇▇▇▇, as agent
for the Glass Machinery Units, will enter into Hedge Contracts on behalf of the
Glass Machinery Units with a third party financial institution in the ordinary
course of business and in accordance with past practice to cover trade
exposures, provided that any roll forward of a closed Hedge Contract may occur
only with the prior consent of the Buyer which consent, in the case of such a
roll forward of a Hedge Contract that covers a bona fide trade, will not be
withheld unreasonably.
(c) All Hedge Contracts between Black & ▇▇▇▇▇▇ and a Glass Machinery
Unit, other than a Glass Machinery Share Company, will be assigned by the Glass
Machinery Units to and assumed by a Buyer Company at the Closing. No gain or
loss on Hedge Contracts of the Glass Machinery Units will be recognized in the
determination of the Proposed Final Net Tangible Asset Amount or the Final Net
Tangible Asset Amount other than those recognized in the books of account of the
Glass Machinery Units in accordance with the current accounting policies
followed by the Glass Machinery Units.
(d) All Hedge Contracts between a Glass Machinery Unit and Black &
▇▇▇▇▇▇ will be closed effective as of the Closing Date. Each such Hedge Contract
shall be closed at the rates of exchange for the forward purchase of and with
the relevant currencies for the period of time remaining on each such Hedge
Contract as quoted by Bank of America as of 10:00 a.m. local
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New York time on the Closing Date. The amount due each Buyer Company that
assumed a Hedge Contract and each Glass Machinery Share Company that is a party
to a Hedge Contract, or Black & ▇▇▇▇▇▇, as the case may be, under each such
Hedge Contract that is not in U.S. dollars shall be converted to U.S. dollars at
the rate of exchange for the spot purchase of U.S. dollars with the relevant
foreign currency as quoted by the Bank of America as of 10:00 a.m. local New
York time on the Closing Date.
(e) Black & ▇▇▇▇▇▇ shall prepare a schedule of the gain or loss on each
of such Hedge Contracts and the aggregate gain or loss realized by each of (i)
Black & ▇▇▇▇▇▇ and (ii) all Buyer Companies that assumed a Hedge Contract and
all Glass Machinery Share Companies that are parties to a Hedge Contract,
expressed in U.S. dollars, calculated using the rates of exchange referred to in
Section 7.08(d) and shall provide such schedule, together with the quotations
from the Bank of America to Buyer by the close of business on the second
Business Day following the Closing Date. Such schedule and the calculations
thereon shall be conclusive absent manifest error. If such schedule reflects
that there is aggregate gain realized by the Glass Machinery Units upon the
closure of all such Hedge Contracts the amount of such aggregate gain shall be
paid by Black & ▇▇▇▇▇▇ to Buyer on the second Business Day following the
delivery of such schedule. If such schedule reflects that there is aggregate
loss realized by the Glass Machinery Units upon the closure of such Hedge
Contracts the amount of such aggregate loss shall be paid by Buyer to Black &
▇▇▇▇▇▇ on the second Business Day following the delivery of such schedule. Such
payment shall be made in immediately available funds in U.S. dollars by wire
transfer to a bank account designated in writing by the party entitled to
receive such payment. The making or receipt of any such payment to or by Buyer
shall be as agent for each Buyer Company that assumed a Hedge Contract and each
Glass Machinery Share Company that is a party to a Hedge Contract. Within five
(5) Business Days of the Closing Date, Black & ▇▇▇▇▇▇ shall deliver to Buyer two
(2) copies of a Foreign Exchange Compensating Contract Confirmation (each a
"Hedge Closure Confirmation") signed by Black & ▇▇▇▇▇▇ confirming the closure of
each such Hedge Contract. Within five (5) Business Days of its receipt of such
Hedge Closure Confirmations, Buyer shall cause each Buyer Company that assumed a
Hedge Contract and each Glass Machinery Share Company that is a party to a Hedge
Contract to sign such Hedge Closure Confirmations and return one fully signed
copy of each such Hedge Closure Confirmation to Black & ▇▇▇▇▇▇.
(f) In the event that any of the Hedge Contracts assumed by Buyer are
with third party financial institutions and Black & ▇▇▇▇▇▇ has provided a
Financial Support Arrangement with respect to such Hedge Contracts, the
provisions of Sections 6.03(d), 6.03(e) and 6.03(f) shall, subject to the
proviso at the end of Section 6.03(d), apply to such Financial Support
Arrangements.
(g) All costs, taxes and fees associated with the transfer and closing
of the Hedge Contracts (other than the gains and losses referred to in Sections
7.08(c) or 7.08(e) above and Income Taxes on any gain recognized by a Glass
Machinery Share Company or a Buyer Company on the closing of such Hedge
Contracts) shall be borne by Black & ▇▇▇▇▇▇.
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Section 7.09 Restructuring Costs. Promptly upon receipt of one or more
certifications from Buyer's chief financial officer that Buyer has made actual
cash expenditures prior to December 31, 2000 in connection with the
restructuring of the Glass Machinery Business and specifying the amount of such
expenditures and the Glass Machinery Unit that made such expenditure, Black &
▇▇▇▇▇▇ will cause each Seller of such Glass Machinery Unit to reimburse Buyer
for an aggregate of up to $7,000,000 of such expenditures.
ARTICLE VIII
EMPLOYEES AND EMPLOYEE BENEFIT MATTERS
Section 8.01 Employees and Employee Benefit Matters. The parties agree
that (i) the allocation of obligations with respect to employees of the Glass
Machinery Business accrued prior to the Closing shall be pursuant to Exhibit D
and (ii) subject to mandatory Applicable Law and existing agreements that
preclude implementation of the provisions of Exhibit D, the obligations of Buyer
to offer terms and conditions of employment to Transferred Employees shall
principally be as set forth in Exhibit D.
ARTICLE IX
CONDITIONS TO CLOSING
Section 9.01 Conditions to the Obligations of Each Party. The
obligations of Black & ▇▇▇▇▇▇ and Buyer to consummate the Closing are subject to
the satisfaction (or waiver) of the following conditions:
(a) any applicable waiting period under the HSR Act relating to the
Contemplated Transactions shall have expired or been terminated;
(b) no provision of any Applicable Law and no judgment, injunction,
order or decree shall prohibit the Closing, and no action or proceeding shall be
pending before any court, arbitrator or Governmental Authority with respect to
which counsel reasonably satisfactory to Black & ▇▇▇▇▇▇ and Buyer shall have
rendered a written opinion that there is a substantial likelihood of a
determination that would prohibit the Closing;
(c) the actions by or in respect of or filings with any Governmental
Authority listed on Attachment VII shall have been obtained or made and any
waiting period connected therewith shall have expired or been terminated; and
(d) Black & ▇▇▇▇▇▇ or the applicable Seller or Glass Machinery Unit, as
the case may be, shall have obtained the consents, approvals or permits or taken
the actions contemplated by Attachment VII.
-21-
Section 9.02 Conditions to Obligation of Buyer. The obligations of
Buyer to consummate the Closing are subject to the satisfaction (or waiver by
Buyer) of the following further conditions:
(a) (i) Black & ▇▇▇▇▇▇ shall have performed in all material respects
all of its obligations under the Transaction Documents required to be performed
by it on or prior to the Closing Date, (ii) the representations and warranties
of Black & ▇▇▇▇▇▇ contained in the Transaction Documents shall be true and
correct at and as of the date of this Agreement and as of the Closing Date, as
if made at and as of each such date, except that those representations and
warranties which are by their express terms made as of a specific date shall be
true and correct only as of such date, in each case except for inaccuracies that
in the aggregate could not reasonably be expected to have a Material Adverse
Effect on the Glass Machinery Business, and (iii) Buyer shall have received a
certificate signed by an executive officer of Black & ▇▇▇▇▇▇ to the foregoing
effect;
(b) since March 22, 1998, no event has occurred that has had a Material
Adverse Effect on the Glass Machinery Business, other than those resulting from
changes, whether actual or prospective, in general conditions applicable to the
business in which the Glass Machinery Business is involved or general economic
conditions; and
(c) Black & ▇▇▇▇▇▇ or the applicable Affiliated Transferor shall have
executed and delivered, on or before the Closing Date, the Transaction Documents
that are required to be signed by a Black & ▇▇▇▇▇▇ Company.
(d) The environmental conditions of the facilities included in the
Transferred Assets or owned or leased by a Glass Machinery Share Company as
ascertained through investigations conducted by Buyer pursuant to Section 6.02
do not in the aggregate constitute conditions that could reasonably be expected
to have a Material Adverse Effect on the Glass Machinery Business.
Section 9.03 Conditions to Obligation of Black & ▇▇▇▇▇▇. The obligation
of Black & ▇▇▇▇▇▇ to consummate the Closing is subject to the satisfaction (or
waiver by Black & ▇▇▇▇▇▇) of the following further conditions:
(a) (i) Buyer shall have performed in all material respects all of
their respective obligations under the Transaction Documents required to be
performed by them at or prior to the Closing Date, (ii) the representations and
warranties of Buyer contained in the Transaction Documents shall be true and
correct at and as of the date of this Agreement and as of the Closing Date, as
if made at and as of each such date, except that those representations and
warranties which are by their express terms made as of a specific date shall be
true and correct only as of such date, in each case except for inaccuracies that
could not reasonably be expected to have a Material Adverse Effect on the Glass
Machinery Business, and (iii) Black & ▇▇▇▇▇▇ shall have received a certificate
signed by an executive officer of Buyer to the foregoing effect; and
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(b) Buyer or the applicable Buyer Company shall have executed and
delivered, on or before the Closing Date, the Transaction Documents that are
required to be signed by a Buyer Company.
Section 9.04 Updated Disclosure Schedules. At any time prior to the
Closing Black & ▇▇▇▇▇▇ shall be entitled to deliver to Buyer updates to or
substitutions of the Disclosure Schedules provided that such updates or
substitutions are clearly marked as such and are addressed to Buyer at the
address listed in Section 12.01. In the event that Black & ▇▇▇▇▇▇ delivers
updated or substitute Disclosure Schedules on or after the third day before any
scheduled closing date, Buyer shall be entitled to extend the scheduled closing
date to the third day after it receives the updated or substitute Disclosure
Schedules, or if such day is not a Business Day, to the next Business Day. The
delivery by Black & ▇▇▇▇▇▇ of updated or substitute Disclosure Schedules shall
not prejudice any rights of Buyer under this Agreement, including but not
limited to the right to claim that the representations and warranties of Black &
▇▇▇▇▇▇, when made on the date of this Agreement, were untrue or that a Material
Adverse Effect on the Glass Machinery Business has occurred; provided, however,
that if Buyer decides not to assert any such claim and consummates the Closing,
the updated or substitute Disclosure Schedules shall replace, in whole or in
part as the case may be, the Disclosure Schedules previously delivered hereunder
for all purposes.
Section 9.05 Effect of Waiver. Any waiver by Buyer of the conditions
specified in clause (ii) of Section 9.02(a), and any waiver by Black & ▇▇▇▇▇▇ of
the conditions specified in clause (ii) of Section 9.03, if made knowingly,
shall also be deemed a waiver of any claim for Damages as the result of the
matters waived.
ARTICLE X
SURVIVAL; INDEMNIFICATION
Section 10.01 Survival.
None of the representations, warranties, covenants or agreements of the
parties contained in any Transaction Document or in any certificate or other
writing delivered pursuant to any Transaction Document or in connection with any
Transaction Document shall survive the Closing, except for:
(i) the representations and warranties in Sections B.01
through B.04 shall survive indefinitely;
(ii) the representations and warranties in Section B.15 shall
not survive the Closing Date;
-23-
(iii) the representations and warranties in Sections B.18 and
B.20 shall survive until 30 days after the expiration of the applicable
statute of limitations (or extensions or waivers thereof);
(iv) the representations and warranties in Section B.21 shall
survive for a period of two years from the Closing Date;
(v) the representations and warranties in Exhibit B (other
than those Sections of Exhibit B referenced in the preceding clauses
(i), (ii) and (iii)), shall survive for a period of one year from the
Closing Date;
(vi) the representations and warranties in Sections C.01 and
C.02 shall survive indefinitely;
(vii) the representations and warranties in Exhibit C (other
than those Sections of Exhibit C referenced in the preceding clause
(v)) shall survive for a period of one year from the Closing Date; and
(viii) those covenants and agreements set forth in the
Transaction Documents that, by their terms, are to have effect after
the Closing Date shall survive for the period contemplated by such
covenants and agreements, or if no period is expressly set forth,
indefinitely.
The representations, warranties, covenants and agreements referenced in the
preceding clauses (i) and (iii) through (vii) are referred to herein as the
"Surviving Representations or Covenants." It is understood and agreed that, (i)
before the Closing the remedies expressly set forth in Article XI are the sole
and exclusive remedies for any breach of any representation, warranty, covenant
or agreement and (ii) following the Closing the sole and exclusive remedy with
respect to any breach of any representation, warranty, covenant or agreement
(other than (1) with respect to a breach of the terms of a covenant or
agreement, as to which Buyer or Black & ▇▇▇▇▇▇, as the case may be, shall be
entitled to seek specific performance or other equitable relief and (2) with
respect to claims for fraud) shall be a claim for Damages (whether by contract,
in tort or otherwise, and whether in law, in equity or both) made pursuant to
this Article X.
Section 10.02 Indemnification.
(a) Effective as of the Closing and subject to the limitations set
forth in Section 10.04(a), Buyer hereby indemnifies Black & ▇▇▇▇▇▇ and its
Affiliates and their respective directors, officers, employees and agents
against, and agrees to hold them harmless from any and all Damages incurred or
suffered by any of them arising out of or related in any way to (i) any
misrepresentation or breach of any Surviving Representation or Covenant made or
to be performed by Buyer Companies pursuant to any of the Transaction Documents,
(ii) except as otherwise contemplated by Sections 10.02(b)(iii) and
10.04(b)(ii), (A) any Assumed Liabilities (including, without limitation, any
Buyer Company's failure to perform or in due course pay or discharge any Assumed
Liability) and (B) any liability of a Glass Machinery Share Company
-24-
other than an Excluded Liability, (iii) subject to the proviso contained in the
last sentence of Section 6.03(d) any Financial Support Arrangement described in
Section 6.03(d), (iv) any matters for which indemnification is provided to Black
& ▇▇▇▇▇▇ or any of its Affiliates under Exhibit D (it being understood that the
terms of such indemnification shall be governed by and subject to the terms of
Exhibit D), (v) the first One Million Dollars ($1,000,000) in Damages (other
than legal fees or similar costs) that arise following Closing in respect of the
Arbitration Cases, or (vi) any liabilities or obligations arising in connection
with or in any way relating to the Glass Machinery Business (but only to the
extent conducted after the Closing Date), or a facility the possession of which
is transferred, directly or indirectly, to a Buyer Company at Closing (but only
during a period in which such Buyer Company or any of its Affiliates or any of
their successors owns or leases such facility), to the extent such liabilities
arise out of, relate to, are based on or result from any action taken (or a
failure to take action) or any event occurring after the Closing Date. Buyer
hereby indemnifies Black & ▇▇▇▇▇▇ and its Affiliates and their respective
directors, officers, employees and agents against, and agrees to hold them
harmless from any and all Damages incurred or suffered by any of them directly
arising out of actions taken by Buyer Companies or any of their Representatives
in connection with any environmental audit or similar review of the Glass
Machinery Business that involves testing, drilling or sampling at any facility
possession of which is contemplated to be transferred to a Buyer Company at
Closing. The indemnity contained in the immediately preceding sentence is
explicitly limited to not include any costs related to any (A) Remedial Actions,
(B) personal injury, wrongful death, economic loss or property damage claims,
(C) claims for natural resource damages, (D) violations of Applicable Law, (E)
reporting requirements, or (F) any other Damages with respect to Environmental
Laws which, in each case, may be identified in said audit or similar review but
are not directly caused by said audit or similar review.
(b) Effective as of the Closing and subject to the limitations set
forth in Section 10.04(b), Black & ▇▇▇▇▇▇ hereby indemnifies Buyer and its
Affiliates and their respective directors, officers, employees and agents
against, and agrees to hold them harmless from any and all Damages incurred or
suffered by any of them arising out of or related in any way to (i) any
misrepresentation or breach of any Surviving Representation or Covenant made or
to be performed by Black & ▇▇▇▇▇▇ pursuant to any Transaction Document, (ii) any
Excluded Liabilities (including, without limitation, Black & ▇▇▇▇▇▇'▇ or any of
its Affiliates' failure to perform or in due course pay or discharge any
Excluded Liability), (iii) any Environmental Liabilities, whether or not the
subject of a claim by any Governmental Authority or any other third party,
incurred by reason of any violation of any Environmental Law or the presence of
any Hazardous Substances to the extent that the event or condition causing any
such Loss (a) exists as of or prior to the Closing Date, whether or not caused
by Black & ▇▇▇▇▇▇ or contributed to by Black & ▇▇▇▇▇▇, (b) arises out of,
relates to, is based on or results from actions taken (or the failure to take
action), or events occurring prior to the Closing Date, or (c) Environmental
Liabilities that are Excluded Liabilities including, without limitation, those
that relate to or stem from the actual or alleged shipment of, or arrangement
for the shipment of, Hazardous Substances prior to the Closing Date, for offsite
treatment, storage, processing, recycling, reuse or disposal at any facility or
location not included in the Transferred Assets (whether by fee ownership or
leasehold interest) or not owned or leased on the Closing Date by a Glass
Machinery Share Company, or (iv) any matters for which indemnification is
provided under Exhibit D (it being
-25-
understood that the terms of such indemnification shall be governed by and
subject to the terms of Exhibit D).
Section 10.03 Procedures.
(a) If Black & ▇▇▇▇▇▇ or any of its Affiliates or any of their
directors, officers, employees and agents, shall seek indemnification pursuant
to Section 10.02(a), or if Buyer or any of its Affiliates or any of their
directors, officers, employees and agents, shall seek indemnification pursuant
to Section 10.02(b), the Person seeking indemnification (the "Indemnified
Party") shall give written notice to the party from whom such indemnification is
sought (the "Indemnifying Party") promptly (and in any event within 30 days)
after the Indemnified Party (or, if the Indemnified Party is a corporation, any
officer or employee of the Indemnified Party) becomes aware of the facts giving
rise to such claim for indemnification (an "Indemnified Claim") specifying in
reasonable detail the factual basis of the Indemnified Claim, stating the amount
of the Damages, if known, the method of computation thereof, containing a
reference to the provision of the Transaction Documents in respect of which such
Indemnified Claim arises and demanding indemnification therefor. The failure of
an Indemnified Party to provide notice in accordance with this Section 10.03
shall not constitute a waiver of that party's claims to indemnification pursuant
to Section 10.02, except to the extent that (i) any such failure or delay in
giving notice causes the amounts paid by the Indemnifying Party to be greater
than they otherwise would have been or otherwise results in prejudice to the
Indemnifying Party or (ii) such notice is not delivered to the Indemnifying
Party prior to the expiration of the applicable survival period set forth in
Section 10.01. If the Indemnified Claim arises from the assertion of any claim,
or the commencement of any suit, action, proceeding or Remedial Action brought
by a Person that is not a party hereto (a "Third Party Claim"), any such notice
to the Indemnifying Party shall be accompanied by a copy of any papers
theretofore served on or delivered to the Indemnified Party in connection with
such Third Party Claim. With respect to any Third Party Claim asserted or
brought prior to the Closing Date, notice of such Third Party Claim shall be
deemed to have been delivered on the Closing Date.
(b) (i) Upon receipt of notice of a Third Party Claim from an
Indemnified Party pursuant to Section 10.03(a), the Indemnifying Party
will be entitled to assume the defense and control of such Third Party
Claim subject to the provisions of this Section 10.03. After written
notice by the Indemnifying Party to the Indemnified Party of its
election to assume the defense and control of a Third Party Claim, the
Indemnifying Party shall not be liable to such Indemnified Party for
any legal fees or expenses subsequently incurred by such Indemnified
Party in connection therewith, (except that the Indemnifying Party
shall be responsible for fees and expenses of counsel to the
Indemnified Party to the extent it is advised by counsel that either
(x) the Indemnifying Party's counsel has a conflict of interest or (y)
there are legal defenses available to the Indemnifying Party that are
different from or in addition to those that are available to the
Indemnifying Party and counsel provided by the Indemnifying Party is
not in a position to assert such defenses). Notwithstanding anything in
this Section 10.3 to the contrary, if the Indemnifying Party does not
assume defense and control of a Third Party Claim as provided in this
Section 10.3, the Indemnified Party shall have the right to defend such
-26-
Third Party Claim, subject to the limitations set forth in this Section
10.03, in such manner as it may deem appropriate. Whether the
Indemnifying Party or the Indemnified Party is defending and
controlling any such Third Party Claim, they shall select counsel,
contractors, experts and consultants of recognized standing and
competence, shall take all steps necessary in the investigation,
defense or settlement thereof, and shall at all times diligently and
promptly pursue the resolution thereof. The party conducting the
defense thereof shall at all times act as if all Damages relating to
the Third Party Claim were for its own account and shall act in good
faith and with reasonable prudence to minimize Damages therefrom. The
Indemnified Party shall, and shall cause each of its Affiliates,
directors, officers, employees, and agents to, cooperate fully with the
Indemnifying Party in connection with any Third Party Claim.
(ii) Subject to the provisions of Section 10.03(b)(iii) and
Section 10.03(b)(iv), the Indemnifying Party shall be authorized to
consent to a settlement of, or the entry of any judgment arising from,
any Third Party Claims, and the Indemnified Party shall consent to a
settlement of, or the entry of any judgment arising from, such Third
Party Claims; provided, that the Indemnifying Party shall (1) pay or
cause to be paid all amounts arising out of such settlement or judgment
concurrently with the effectiveness thereof; (2) shall not encumber any
of the assets of any Indemnified Party or agree to any restriction or
condition that would apply to such Indemnified Party or to the conduct
of that party's business; and (3) shall obtain, as a condition of any
settlement or other resolution, a complete release of each Indemnified
Party. Except for the foregoing, no settlement or entry of judgment in
respect of any Third Party Claim shall be consented to by any
Indemnifying Party or Indemnified Party without the express written
consent of the other party.
(iii) Notwithstanding the provisions of Section 10.03(b)(i),
Buyer shall manage all Remedial Actions conducted with respect to
facilities which constitute Transferred Assets or assets (other than
Excluded Assets) owned or leased by a Glass Machinery Share Company,
provided that Black & ▇▇▇▇▇▇ and its Representatives shall have the
right, consistent with Buyer's right to manage such Remedial Actions as
aforesaid, to participate fully in all decisions regarding any Remedial
Action, including reasonable access to sites where any Remedial Action
is being conducted, reasonable access to all documents, correspondence,
data, reports or information regarding the Remedial Action, reasonable
access to employees and consultants of Buyer with knowledge of relevant
facts about the Remedial Action and the right to attend all meetings
and participate in any telephone or other conferences with any
Government Authority or other third party regarding the Remedial
Action.
(iv) In the case of the indemnification contemplated by
Section 10.02(b)(iii), in the event that the Indemnifying Party desires
to settle the matters referenced therein or consent to the entry of any
judgment arising thereunder and the Indemnified Party does not wish to
consent to such settlement or entry of judgment, the Indemnified Party
shall have no obligation to consent to the settlement or entry of
judgment provided that it agrees in writing to pay and be responsible
for 100% of any Damages; provided that the
-27-
Indemnified Party shall not be required to consent to any settlement or
agree to be responsible for the payment of Damages thereafter incurred
with respect to any matter the settlement or entry of judgment of which
would require the consent of such Indemnified Party pursuant to Section
10.03(b)(ii). The obligation of an Indemnified Party that rejects any
proposed settlement offer or entry of any such judgment to pay and be
responsible for 100% of any Damages in accordance with this Section
10.03(b)(iv) shall be conditioned upon and subject to the payment by
Indemnifying Party, within five Business Days of the date such
Indemnified Party provides the written agreement contemplated by the
preceding sentence, of an amount, in immediately available funds, equal
to the portion of the total settlement that would have been payable by
the Indemnifying Party according to the percentage sharing arrangement
contemplated by Section 10.04(b)(ii). Thereafter, the Indemnified Party
shall be solely responsible for any Damages and for the defense of the
matter that is the subject of the proposed settlement or entry of
judgment. Notwithstanding the foregoing, an Indemnifying Party may, at
its option and expense, participate in the defense of any Indemnified
Claim.
(c) If the Indemnifying Party and the Indemnified Party are unable to
agree with respect to a procedural matter arising under Section 10.03(b)(iii),
the Indemnifying Party and the Indemnified Party shall, within 10 days after
notice of disagreement given by either party, agree upon a third-party referee
("Referee"), who shall be an attorney and who shall have the authority to review
and resolve the disputed matter. The parties shall present their differences in
writing (each party simultaneously providing to the other a copy of all
documents submitted) to the Referee and shall cause the Referee promptly to
review any facts, law or arguments either the Indemnifying Party or the
Indemnified Party may present. The Referee shall be retained to resolve specific
differences between the parties within the range of such differences. Either
party may request that all discussions with the Referee by either party be in
each other's presence. The decision of the Referee shall be final and binding
unless both the Indemnifying Party and the Indemnified Party agree. The parties
shall share equally all costs and fees of the Referee.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim,
the Indemnifying Party shall be subrogated, to the extent of such payment, to
all rights and remedies of the Indemnified Party to any insurance or other
claims or of the Indemnified Party with respect to such claim.
(e) Notwithstanding the provisions contained in this Section 10.03,
Black & ▇▇▇▇▇▇ and its Affiliates shall control the defense of the Arbitration
Cases following Closing as if they were indemnifying parties defending a Third
Party Claim in the manner contemplated by Section 10.03(b)(i).
Section 10.04 Limitations. Notwithstanding anything to the contrary in
this Agreement or in any of the Transaction Documents:
(a) Buyer shall only have liability to Black & ▇▇▇▇▇▇ or any other
Person hereunder with respect to the representations and warranties described in
clause (i) of Section 10.02(a) if such matters were the subject of a written
notice given by the Indemnified Party pursuant to
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Section 10.03(a) within the period following the Closing Date specified for each
respective matter in Section 10.01.
(b) Black & ▇▇▇▇▇▇ shall only have liability to Buyer or any other
Person hereunder:
(i) with respect to the representations and warranties
described in clause (i) of Section 10.02(b), (y) to the extent that the
aggregate Damages of all Indemnified Parties as the result thereof
exceed $1,000,000 but are not greater than an amount equal to
$1,000,000 plus 33% of the Adjusted Purchase Price (it being understood
that Black & ▇▇▇▇▇▇'▇ maximum liability under Section 10.02(b)(i) with
respect to representations and warranties and this Section 10.04(b)(i)
shall be an amount equal to 33% of the Adjusted Purchase Price),
provided that the limitations expressed in this subclause (b) shall not
apply to any claim made under Section B.18; and (z) if such matters
were the subject of a written notice given by the Indemnified Party
pursuant to Section 10.03(a) within the period following the Closing
Date specified for each respective matter in Section 10.01; and
(ii) with respect to the matters described in clauses (iii)(a)
and (iii)(b) of Section 10.02(b), to the extent of (x) 75% of the
aggregate Damages incurred and paid within the first five years
following the Closing Date by all Indemnified Parties as a result
thereof based, to the extent relevant, on the use of the facilities
constituting Transferred Assets or facilities owned or leased by a
Glass Machinery Share Company as of the Closing Date, (y) 50% of the
aggregate Damages incurred and paid within the second five years
following the Closing Date by all Indemnified Parties as the result
thereof based, to the extent relevant, on the use of the facilities
constituting Transferred Assets or facilities owned or leased by a
Glass Machinery Share Company as of the Closing Date, and (z) if the
aggregate of such Damages incurred and paid within first ten years
following the Closing Date by all Indemnified Parties (after giving
effect to the payment of indemnified amounts by Black & ▇▇▇▇▇▇ to the
Indemnified Parties under this Section 10.04(a)(ii)) exceeds
$5,000,000, all additional Damages incurred and paid by all Indemnified
Parties in the first ten years following the Closing Date by all
Indemnified Parties as a result thereof based, to the extent relevant,
on the use of the facilities constituting Transferred Assets or
facilities owned or leased by a Glass Machinery Share Company as of the
Closing Date.
ARTICLE XI
TERMINATION
Section 11.01 Termination. The Transaction Documents may be terminated
at any time prior to the Closing:
(i) by mutual written agreement of Black & ▇▇▇▇▇▇ and Buyer;
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(ii) by Black & ▇▇▇▇▇▇ or Buyer if the Closing shall not have
been consummated by December 31, 1998; provided, however, that neither
Black & ▇▇▇▇▇▇ nor Buyer may terminate the Transaction Documents
pursuant to this clause (ii) if the Closing shall not have been
consummated by December 31, 1998, by reason of the failure of such
party or any of its Affiliates to perform in all material respects any
of its or their respective covenants or agreements contained in the
Transaction Documents; and
(iii) by either Black & ▇▇▇▇▇▇ or Buyer if there shall be any
Applicable Law or regulation that makes consummation of the
Contemplated Transactions illegal or otherwise prohibited or if
consummation of the Contemplated Transactions would violate any
nonappealable final order, decree or judgment of any Governmental
Authority having competent jurisdiction.
Any party desiring to terminate this Agreement pursuant to this Section 11.01
shall give written notice of such termination to the other parties to this
Agreement.
Section 11.02 Effect of Termination. If this Agreement is terminated as
permitted by Section 11.01, such termination shall be without liability of any
party (or any Affiliate, stockholder, director, officer, employee, agent,
consultant or Representative of such party) to any other party to this
Agreement; provided, however, that if the Contemplated Transactions fail to
close as a result of a breach of the provisions of any Transaction Document by
Black & ▇▇▇▇▇▇ or Buyer, such party shall be fully liable for any and all losses
and damages incurred or suffered by the other party as a result of all such
breaches, and the other party shall be able to pursue any and all remedies which
may be available to it, if the other party is ready, willing and able to
otherwise satisfy its obligations under the Transaction Documents.
Notwithstanding the foregoing, the provisions of Sections 6.01 and 12.03, the
second sentence of Section 10.02(a), and this Section 11.02 shall survive any
termination hereof pursuant to Section 11.01.
ARTICLE XII
MISCELLANEOUS
Section 12.01 Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopy or similar
writing) and shall be given,
if to Black & ▇▇▇▇▇▇:
The Black & ▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President and
Chief Financial Officer
Telecopy: ▇▇▇(▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
The Black & ▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President and
General Counsel
Telecopy: ▇▇▇(▇▇▇) ▇▇▇-▇▇▇▇
and
Miles & Stockbridge P.C.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Telecopy: ▇▇▇(▇▇▇) ▇▇▇-▇▇▇▇
if to Buyer:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attention: Chief Executive Officer
Telecopy: ▇▇▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
Homburger Rechtsanwaelte
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇/▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Attention: Dr. ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇▇▇ ▇▇▇-▇▇▇▇
or to such other address or telecopy number and with such other copies, as such
party may hereafter specify for the purpose by notice to the other parties. Each
such notice, request or other communication shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section 12.01 and evidence of receipt is received or (ii) if given by any
other means, upon delivery or refusal of delivery at the address specified in
this Section 12.01.
Section 12.02 Amendments; Waivers.
(a) Subject to the provisions of Section 9.04, any provision of the
Transaction Documents may be amended or waived prior to the Closing Date if, and
only if, such amendment
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or waiver is in writing and signed, in the case of an amendment, by Black &
▇▇▇▇▇▇ and Buyer, or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege under any Transaction Document shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 12.03 Expenses; Taxes. Except as otherwise provided in the
Transaction Documents, all costs and expenses incurred in connection with the
Transaction Documents shall be paid by the party incurring such cost or expense.
Notwithstanding the foregoing, (i) all real estate transfer, stock transfer,
registration and transfer taxes and fees (other than fees and charges associated
with the registration and transfer of Intellectual Property), stamp duties,
notarial charges, sales, use, value added and similar taxes (except to the
extent they are recoverable by Buyer or the Buyer Companies) or governmental
charges resulting from or relating to the transfer of the Transferred Assets or
Shares to a Buyer Company by Black & ▇▇▇▇▇▇ or any of the Sellers or the
transfer of the Excluded Assets by a Glass Machinery Share Company to Black &
▇▇▇▇▇▇ or any of its Affiliates, shall be borne by the party primarily obligated
therefor under Applicable Law (or, absent Applicable Law, local custom) and (ii)
all fees and charges, including notarial charges, associated with the
registration and transfer of Intellectual Property shall be paid by Black &
▇▇▇▇▇▇. Each of Buyer and Black & ▇▇▇▇▇▇ shall reimburse the other for 50% of
any such fees and taxes and charges paid by the other promptly upon presentation
of a demand therefor consistent with this Section 12.03, provided that Buyer's
obligation to pay such fees and taxes or reimburse Black & ▇▇▇▇▇▇ for 50% of
such fees and taxes paid by Black & ▇▇▇▇▇▇ shall be limited to a maximum amount
of $500,000.
Section 12.04 Successors and Assigns. The provisions of the Transaction
Documents shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns; provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other party.
Section 12.05 Disclosure. Certain information set forth in the
Disclosure Schedules has been included and disclosed solely for informational
purposes and may not be required to be disclosed pursuant to the terms and
conditions of the Transaction Documents. The disclosure of any such information
shall not be deemed to constitute an acknowledgment or agreement that the
information is required to be disclosed in connection with the representations
and warranties made in the Transaction Documents or that the information is
material, nor shall any information so included and disclosed be deemed to
establish a standard of materiality or otherwise used to determine whether any
other information is material. It is understood and agreed by the parties that
in cases where a representation and warranty excepts from its scope matters that
are "specifically disclosed" only those items marked with an asterisk on the
referenced Disclosure Schedule shall be deemed to have been so specifically
disclosed and that any other disclosures shall not be deemed to be sufficiently
specific to operate as an exception to such representation and warranty
whatsoever.
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Section 12.06 Construction. As used in the Transaction Documents, any
reference to the masculine, feminine or neuter gender shall include all genders,
the plural shall include the singular, and the singular shall include the
plural.
Section 12.07 Entire Agreement.
(a) The Transaction Documents and any other agreements contemplated
thereby (including, to the extent contemplated herein, the Confidentiality
Agreement) constitute the entire agreement among the parties with respect to the
subject matter of such documents and supersede all prior agreements,
understandings and negotiations, both written and oral, between the parties with
respect to the subject matter thereof.
(b) The parties hereto acknowledge and agree that no representation,
warranty, promise, inducement, understanding, covenant or agreement has been
made or relied upon by any party hereto other than those expressly set forth in
the Transaction Documents. Without limiting the generality of the disclaimer set
forth in the preceding sentence, (i) none of the parties to this Agreement has
made or shall be deemed to have made any representations or warranties, in any
presentation or written information relating to the Glass Machinery Business
given or to be given in connection with the Contemplated Transactions, in any
filing made or to be made by or on behalf of any such parties with any
Governmental Authority, and no statement, made in any such presentation or
written materials, made in any such filing or contained in any such other
information shall be deemed a representation or warranty hereunder or otherwise,
and (ii) Black & ▇▇▇▇▇▇, on its own behalf and on behalf of the other Sellers,
expressly disclaims any implied warranties, including but not limited to
warranties of fitness for a particular purpose and warranties of
merchantability. Buyer acknowledges that Black & ▇▇▇▇▇▇ has informed them that
no Person has been authorized by Black & ▇▇▇▇▇▇ or any of its Affiliates to make
any representation or warranty in respect of the Glass Machinery Business or in
connection with the Contemplated Transactions, unless in writing and contained
in this Agreement or in any of the Transaction Documents to which they are a
party. Black & ▇▇▇▇▇▇ acknowledges that Buyer has informed them that no Person
has been authorized by Black & ▇▇▇▇▇▇ or any of its Affiliates to make any
representation or warranty in respect of the Glass Machinery Business or in
connection with the Contemplated Transactions, unless in writing and contained
in this Agreement or in any of the Transaction Documents to which they are a
party.
(c) Except as expressly provided herein or in any other Transaction
Document, no Transaction Document or any provision thereof is intended to confer
upon any Person other than the parties hereto any rights or remedies hereunder.
Section 12.08 Governing Law. Except as otherwise provided in any of the
Transaction Documents, this Agreement and the other Transaction Documents shall
be construed in accordance with and governed by the law of the State of Maryland
(without regard to the choice of law provisions thereof).
Section 12.09 Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures
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thereto and hereto were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received a counterpart hereof signed
by the other party hereto.
Section 12.10 Jurisdiction. Any dispute, controversy or claim arising
out of or relating to the Transaction Documents or the Contemplated Transactions
or the breach, termination or invalidity thereof, shall exclusively be settled
by arbitration in accordance with the UNCITRAL Arbitration Rules as at present
in force. In addition, or in exception as the case may be, to such rules, Black
& ▇▇▇▇▇▇ and Buyer agree on the following rules with respect to the arbitration:
(a) The number of arbitrators shall be three and each party shall
appoint one arbitrator and the two party-appointed arbitrators shall appoint the
chairman. In case (i) the defendant party fails to appoint its arbitrator within
thirty days of receipt of the claimant party's request for arbitration or (ii)
if the two party-appointed arbitrators fail to nominate the chairman within
forty days of the nomination of the defendant party-appointed arbitrator, the
appointing authority shall appoint (x) the second party-appointed arbitrator
(who then, together with the plaintiff party-appointed arbitrator, shall appoint
the chairman in accordance with the above) or (y) the chairman, whatever the
case is. In case the claimant party fails to appoint its arbitrator, the request
for arbitration shall not be deemed to be valid.
(b) The appointing authority shall be the International Chamber of
Commerce (ICC) acting in accordance with the Rules adopted by the ICC for such
purpose.
(c) The chairman shall be of British nationality. All arbitrators shall
be practicing lawyers, attorneys, professors of law or judges and shall have
proven experience in arbitrating business and financial disputes; they shall not
be older than the age of sixty-five at the time of their appointment.
(d) The arbitrators shall have sole jurisdiction to decide on their own
competence.
(e) At the request of any of the parties the arbitrators may take any
interim measures deemed necessary in respect of the subject matter of the
dispute; such interim measures may be established in the form of an interim
award; the parties undertake to abide voluntarily by such measures ordered by
the arbitrators.
(f) The language of the arbitration shall be the English language.
(g) The arbitration shall have its seat in Brussels. The arbitrators
shall be free to hold hearings and meetings elsewhere.
(h) The arbitral award (including any interim award) shall be final and
binding upon the parties. The parties undertake to carry out the award
(including any interim or partial awards) without delay and they are waiving any
rights of appeal insofar as such waiver can validly be made.
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(i) The parties hereby expressly waive the right to avail themselves of
any defense of non-arbitrability and of any privileges or immunities from
jurisdiction, suit and/or execution/ enforcement with respect to any proceedings
instituted in connection with these Transaction Documents or the Contemplated
Transactions before any panel of arbitrators appointed in accordance with these
provisions or any state courts (including the state court which could have
jurisdiction to deal with interim measures of protection, attachments or
recognition or enforcement proceedings).
Section 12.11 Severability. Any provision of the Transaction Documents
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of the
Transaction Documents or affecting the validity or enforceability of such
provision in any other jurisdiction. To the extent any provision of the
Transaction Documents is determined to be prohibited or unenforceable in any
jurisdiction Black & ▇▇▇▇▇▇ and Buyer agree to use reasonable efforts, and agree
to cause their Affiliates, as the case may be, to use reasonable efforts, to
substitute one or more valid, legal and enforceable provisions that, insofar as
practicable implement the purposes and intent of the prohibited or unenforceable
provision.
Section 12.12 Bulk Sales. Buyer hereby waives compliance by Black &
▇▇▇▇▇▇ and each Seller of Transferred Assets located in the United States of
America, in connection with the Contemplated Transactions, with the provisions
of Article 6 of the Uniform Commercial Code as adopted in any states or
jurisdictions where any of the Transferred Assets are located, and any other
applicable bulk sales laws with respect to or requiring notice to Black &
▇▇▇▇▇▇'▇ (or any Seller's) creditors, as the same may be in effect on the
Closing Date. Black & ▇▇▇▇▇▇ shall indemnify and hold harmless Buyer against any
and all Damages which may be incurred by Buyer as a result of noncompliance with
any such bulk sales law.
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be duly
executed by their respective authorized officers on the day and year first above
written.
THE BLACK & ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
▇▇▇▇▇▇ HOLDING AG
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
CEO
EXHIBIT A
DEFINITIONS
(a) The following terms have the following meanings:
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with such other
Person. For purposes of determining whether a Person is an Affiliate, the term
"control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through ownership of securities, contract or otherwise.
"Affiliated Group" means one or more corporations which (a) include any
of the Glass Machinery Share Companies and (b) for purposes of the tax laws of
any nation are required to or have elected to file Consolidated Returns with one
or more Affiliates of Black & ▇▇▇▇▇▇ other than a Glass Machinery Company.
"Applicable Law" means, with respect to any Person, any domestic or
foreign, federal, state or local statute, law, ordinance, rule, administrative
interpretation, regulation, order, writ, injunction, decree or other requirement
of any Governmental Authority (including any Environmental Law) applicable to
such Person or any of their respective properties, assets, officers, directors,
employees, consultants or agents (in connection with such officer's, director's,
employee's, consultant's or agent's activities on behalf of such Person).
"Arbitration Cases" means the two arbitration proceedings pending
before the Court of Arbitration of the International Chamber of Commerce in
London, England between Emhart Glass SA and a customer of Emhart Glass SA.
"Arbitration Cases Customer Receivables" means the accounts receivable
due to Emhart Glass SA by the customer of Emhart Glass SA that is the party that
is adverse to Emhart Glass SA in the Arbitration Cases and relate to the work
performed or products sold by Emhart Glass SA for and to such customer pursuant
to the contracts that are the subject matter of the Arbitration Cases.
"Asbestos Claims" means any claim made by a third party seeking Damages
resulting from exposure to asbestos contained in any machine manufactured and
sold by the Glass Machinery Business prior to Closing.
"Assumed Liabilities" means all liabilities and obligations of each
Seller of Transferred Assets to the extent relating to or arising out of the
operation, affairs and conduct of the Glass Machinery Business or the
Transferred Assets, of any kind, character or description, whether liquidated or
unliquidated, known or unknown, fixed or contingent, accrued or unaccrued,
absolute, determined, determinable or indeterminable or otherwise, whether or
not reflected or reserved against in the Opening Statement or in the calculation
of the Final Net Tangible Asset Amount and whether presently in existence or
arising hereafter, except for Excluded Liabilities, including but not limited to
the following:
(i) all liabilities and obligations relating to the Glass
Machinery Business or the Transferred Assets, whether accrued, liquidated,
contingent, matured or unmatured, at or prior to the Closing, that (a) are set
forth on, reflected or referred to in the Opening Statement, (b) are
specifically disclosed in any of the Disclosure Schedules delivered hereunder,
(c) would be subject to disclosure in any of the Disclosure Schedules delivered
in connection with any of Black & ▇▇▇▇▇▇'▇ representations and warranties but
for the materiality standards contained in such representation and warranty, (d)
are reflected in the Final Net Tangible Asset Amount as determined in accordance
with Section 2.04 herein (including without limitation accounts payable and
reserves reflected as contra-asset accounts) or (e) are otherwise a liability or
obligation that a Buyer Company is expressly assuming pursuant to this
Agreement;
(ii) all liabilities and obligations arising under Contracts
to the extent they relate exclusively to the Glass Machinery Business, whether
or not the Contracts have been completed or terminated prior to the Closing
Date, including, without limitation, any such liabilities and obligations
arising from or relating to the performance or non-performance of the Contracts
by the Glass Machinery Business, a Buyer Company or any other Person, whether
arising prior to, on or after the Closing Date, except to the extent they
constitute Excluded Liabilities;
(iii) all liabilities and obligations in respect of employees
and former employees of the Glass Machinery Business, and beneficiaries of
employees and former employees of the Glass Machinery Business, including,
without limitation, liabilities and obligations under or relating to WARN or any
similar state or local law to the extent relating to or arising out of any
actions taken by a Buyer Company on or after the Closing Date, except to the
extent otherwise provided in Exhibit D to be retained by Black & ▇▇▇▇▇▇ or any
Seller;
(iv) all liabilities and obligations in respect of Transferred
Employees and dependents and beneficiaries of Transferred Employees under
Employee Plans and Benefit Arrangements, except to the extent otherwise provided
in Exhibit D to be retained by Black & ▇▇▇▇▇▇ or any Seller;
(v) all liabilities and obligations relating to warranty
obligations or services with respect to any product sold or service provided by
the Glass Machinery Business prior to, on or after the Closing Date;
(vi) all Environmental Liabilities, except to the extent they
(i) constitute Excluded Liabilities or (ii) are subject to indemnification
pursuant to Section 10.02(b)(iii);
(vii) all liabilities and obligations (except to the extent
they constitute Environmental Liabilities, which shall be governed by the
foregoing clause (vii)) relating to the Occupational Safety and Health Act of
1970, as amended, and any regulations, decisions or orders promulgated
thereunder, together with any state or local law, regulation or ordinance
pertaining to worker, employee or occupational safety or health in effect as the
same may be amended, supplemented or superseded, whether arising prior to, on or
after the Closing Date;
(viii) all liabilities and obligations arising from or
relating to governmental, judicial or adversarial proceedings (public or
private), litigation, suits, arbitration, disputes, claims, causes of action or
investigations (collectively, "Proceedings") arising from or directly or
indirectly relating to the Glass Machinery Business or any Transferred Assets,
whether or not accrued, liquidated, contingent, matured, unmatured, or known or
unknown to Black & ▇▇▇▇▇▇ or any Seller or Buyer at or prior to the Closing,
except for liabilities and obligations of a type contemplated by the foregoing
clause (v), which shall be governed by such clause; and
(ix) all liabilities and obligations for sales, use and value
added taxes, gross receipts taxes, property taxes, licenses, employee and
employer withholding and unemployment taxes and other Taxes which are not Income
Taxes.
"Benefit Arrangements" means all life and health insurance,
hospitalization, savings, bonus, deferred compensation, incentive compensation,
bonus plans, stock option, stock purchase, severance pay, disability and fringe
benefit plans, individual employment and severance and change of control
contracts, and other policies and practices providing employee or executive
compensation or benefits to employees or former employees of the Glass Machinery
Business or any of their dependents, maintained or contributed to by the Glass
Machinery Units, other than an Employee Plan.
"Bridge Period" means a taxable year or taxable period which begins
before the Closing Date and ends after the Closing Date.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York, New York or Zurich, Switzerland are
required by law to close.
"Buyer Companies" means Buyer and each company designated by the Buyer
to purchase Transferred Assets or Shares or to assume Assumed Liabilities.
"Closing Date" means the date of the Closing.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidentiality Agreement" means the letter agreement dated March
27/30, 1998, by and between Black & ▇▇▇▇▇▇ and Buyer, as the same has been or
may be amended from time to time.
"Consolidated Returns" means all tax returns with respect to
Consolidated Taxes.
"Consolidated Taxes" means all Taxes, penalties and interest due in
respect of any transaction engaged in by any Affiliated Group for which Taxes
are due.
"Contemplated Transactions" means the transactions contemplated by the
Transaction Documents.
"Contest" means any audit, investigation, assessment, appeal,
proceeding or litigation relating to Taxes.
"Contracts" means all contracts, agreements, leases (including leases
of real property), licenses, commitments, sales and purchase orders, and other
instruments of any kind, whether written or oral.
"Corporate Pass Through Charges" means amounts charged by Black &
▇▇▇▇▇▇ and its Affiliates to a Glass Machinery Unit for the administration of
payroll, payroll taxes, insurance and other employee benefit programs with
respect to U.S. employees, certain insurance and risk management programs,
certain out-of-pocket expenses associated with the filing, protection and
maintenance of Intellectual Property, and the costs borne by Black & ▇▇▇▇▇▇ and
its Affiliates with respect to the employment by such Person of the Active
Employees listed on Attachment XVI hereto, all as allocated and charged to the
Glass Machinery Units in accordance with past practice.
"Damages" means all demands, claims, actions or causes of action,
assessments, losses, damages, costs, expenses, liabilities, judgments, awards,
fines, sanctions, penalties, charges and amounts paid in settlement, including,
without limitation, reasonable costs, fees and expenses of attorneys, experts,
accountants, appraisers, consultants, witnesses, investigators and any other
agents or representatives of such Person (with such amounts to be determined net
of any resulting Tax benefit actually received or realized and net of any refund
or reimbursement of any portion of such amounts actually received or realized,
including, without limitation, reimbursement by way of insurance or third party
indemnification), but specifically excluding (i) any costs incurred by or
allocated to an Indemnified Party with respect to time spent by employees of the
Indemnified Party or any of its Affiliates, (ii) any lost profits or opportunity
costs or punitive damages (except to the extent assessed in connection with a
third-party claim with respect to which the Person against which such damages
are assessed is entitled to indemnification hereunder), and (iii) the decrease
in the value of any Transferred Asset or any asset of a Glass Machinery Share
Company to the extent that such valuation is based on any use of such asset
other than its use as of the Closing Date.
"Disclosure Schedules" means the Disclosure Schedules provided by Black
& ▇▇▇▇▇▇ to Buyer pursuant to Exhibit B dated the date of this Agreement
relating to the Agreement, as it may be amended from time to time in accordance
with this Agreement.
"Employee Plans" means each "employee benefit plan" as defined in
Section 3(3) of ERISA, maintained or contributed to by Black & ▇▇▇▇▇▇ or an
Affiliate of Black & ▇▇▇▇▇▇ which provides benefits to employees of the Glass
Machinery Business or their dependents.
"Environmental Claim" means any written or oral notice, claim, demand,
action, suit, complaint, proceeding or other communication by any third Person
including, without limitation, any Governmental Authority alleging liability or
potential liability (including without limitation liability or potential
liability for investigatory costs, cleanup costs, governmental response costs,
natural resource damages, property damage, personal injury, fines or penalties)
arising out of, relating to, based on or resulting from (i) the presence,
discharge, emission, release or threatened release of any Hazardous Substances
at any location, (ii) circumstances forming the basis of any violation or
alleged violation of any Environmental Laws, or (iii) otherwise relating to
obligations or liabilities under any Environmental Laws.
"Environmental Laws" means any and all past and present statutes, laws
(including common law), regulations, ordinances, judgments, orders, permits,
codes, decrees or injunctions of any foreign (including, without limitation, the
European Community and the European Union), federal, state or local governmental
authority which (i) impose liability for or standards of conduct concerning the
manufacture, processing, generation, distribution, use, treatment, storage,
disposal, cleanup, transport or handling of Hazardous Substances including, The
Resource Conservation and Recovery Act of 1976, as amended, The Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, The
Superfund Amendment and Reauthorization Act of 1984, as amended, The Toxic
Substances Control Act, as amended, the Occupational Safety and Health Act of
1970, as amended, to the extent it relates to the handling of and exposure to
hazardous or toxic materials or similar substances, and any other so-called
"Superfund" or "Superlien" law or (ii) otherwise relates to contamination,
pollution or the protection of human health or the environment.
"Environmental Liabilities" means all liabilities to the extent arising
in connection with or in any way relating to the Glass Machinery Business or
Black & ▇▇▇▇▇▇'▇ or any of its Affiliates' use or ownership thereof, whether
vested or unvested, contingent or fixed, actual or potential, which arise under
or relate to Environmental Laws including, without limitation, (i) Remedial
Actions, (ii) personal injury, wrongful death, economic loss or property damage
claims, (iii) claims for natural resource damages, (iv) violations of law or (v)
any Damages with respect thereto. Notwithstanding the foregoing, Environmental
Liabilities shall not include any increased liabilities resulting from or
arising out of a use of a facility constituting a Transferred Asset or owned or
leased on the Closing Date by a Glass Machinery Share Company other than in the
manner that such facility was used on the Closing Date.
"ERISA" means the Employee Retirement Income Security act of 1974, as
amended.
"Excluded Assets" means with respect to each Seller of Transferred
Assets and each Glass Machinery Share Company:
(i) cash and cash equivalents of a Glass Machinery Unit,
including, without limitation, cash and cash equivalents used as collateral for
letters of credit, deposits with utilities, insurance companies and other
Persons, except to the extent any Glass Machinery Share Company has cash or cash
equivalents on the Closing Date;
(ii) all original books and records that any Seller shall be
required to retain pursuant to any Applicable Law (in which case copies of such
books and records to the extent relating to the Glass Machinery Business shall
be provided to Buyer upon request), or that contain information relating
primarily to any business or activity of a Glass Machinery Unit not forming a
part of the Glass Machinery Business, an Excluded Asset, and Excluded Liability
or any employee of a Seller that is not a Transferred Employee;
(iii) all Tax assets of any Glass Machinery Unit (other than a
Glass Machinery Share Company that is not a member of an Affiliated Group),
other than (A) Tax assets relating to sales, use, value added and similar taxes,
gross receipts taxes, property taxes, licenses, employee and employer
withholding and unemployment taxes and other non-income related taxes and (B)
Income Tax assets of a Glass Machinery Share Company that is not a member of an
Affiliated Group to the extent provided in Section 7.07;
(iv) all assets of a Glass Machinery Unit not held or owned by
or used primarily in connection with the Glass Machinery Business;
(v) all rights and claims of Black & ▇▇▇▇▇▇ or any Seller
under any of the Transaction Documents and the agreements and instruments
delivered to Black & ▇▇▇▇▇▇ or any Seller by a Buyer Company pursuant to any of
the Transaction Documents;
(vi) all accounts receivable, notes receivable or similar
claims or rights (whether or not billed or accrued) of the Glass Machinery
Business from Black & ▇▇▇▇▇▇ or any of its Affiliates, except for accounts
receivable, notes receivable or similar claims or rights (whether billed or
accrued) relating to materials sold or services rendered by a Glass Machinery
Unit to any other Glass Machinery Unit;
(vii) all capital stock or any other securities of any Person
other than the Shares and the partnership interest in the IPGR Partnership held
by Emhart Glass Research, Inc.;
(viii) all Intellectual Property not used primarily in the
Glass Machinery Business including, without limitation, the Emhart Trademarks
(as defined in the Trademark Agreement) other than the rights granted pursuant
to the Trademark Agreement;
(ix) all rights of a Glass Machinery Unit under insurance
policies that insure a Glass Machinery Unit to the extent that any Excluded
Liability constitutes an insured occurrence or insured claim thereunder;
(x) the Arbitration Cases Customer Receivables as reflected in
Note 1 to the Opening Statement up to a total amount of USD$745,000; and
(xi) except as otherwise expressly provided in Exhibit D, all
assets related to Employee Plans and Benefit Arrangements.
"Excluded Liabilities" means in respect of each Seller of Transferred
Assets and each Glass Machinery Share Company the following liabilities and
obligations:
(i) all liabilities and obligations of a Seller of Transferred
Assets not arising out of the conduct of the Glass Machinery Business, except as
otherwise specifically provided in the Transaction Documents;
(ii) all liabilities or obligations of any Glass Machinery
Unit for any Tax arising from or with respect to the Transferred Assets or the
operations of the Glass Machinery Business prior to the Closing, other than (A)
Tax liabilities or obligations relating to sales, use, value added and similar
taxes, gross receipts taxes, property taxes, licenses, employee and employer
withholding and unemployment taxes and other Taxes that are not Income Taxes and
(B) Income Tax liabilities or obligations of a Glass Machinery Share Company
that is not a member of an Affiliated Group to the extent that Buyer is
responsible for such Income Tax liabilities pursuant to Section 7.07;
(iii) all liabilities or obligations, whether presently in
existence or arising after the date of the Agreements, in respect of accounts
payable, notes payable (including intercompany promissory notes and similar
financing arrangements) or similar obligations (whether or not billed or
accrued) to Black & ▇▇▇▇▇▇ or any of its Affiliates, except for (A) the
Insurance Liabilities, (B) liabilities and obligations for Corporate Pass
Through Charges and (C) liabilities or obligations as of the Closing Date in
respect of accounts payable, notes payable or similar obligations relating to
specific services provided to and specific expenses payable by a Glass Machinery
Unit to another Glass Machinery Unit;
(iv) all liabilities or obligations, whether presently in
existence or arising after the date of the Agreement, relating to fees,
commissions or expenses owed to any broker, finder, investment banker,
accountant, attorney or other intermediary or advisor employed by Black & ▇▇▇▇▇▇
in connection with the Contemplated Transactions;
(v) all liabilities or obligations retained by Black & ▇▇▇▇▇▇
or any Seller pursuant to Exhibit D;
(vi) all liabilities or obligations related to Excluded Assets
and not otherwise included in the Assumed Liabilities by express provision of
this Agreement;
(vii) all liabilities or obligations related to claims of
manufacturer or design defects (including Asbestos Claims) made prior to, on or
after the Closing Date with respect to any products manufactured and sold or
service provided by the Glass Machinery Business prior to the Closing Date
(including liabilities and obligations in respect of investigations regarding
product safety, product recalls and related matters), unless, except with
respect to an Asbestos Claim, any such claim is based on an injury caused by the
fact that the product to which such claim relates has been inspected, overhauled
or upgraded after the Closing Date by any of the Buyer Companies or any of the
Glass Machinery Share Companies;
(viii) all Environmental Liabilities, whether arising prior
to, on or after the Closing Date, (1) relating to the disposal prior to Closing
of Hazardous Substances at locations other than facilities included in the
Transferred Assets (whether by fee ownership or leasehold interest) or
facilities owned or leased on the Closing Date by a Glass Machinery Share
Company, it being understood and agreed that the migration of Hazardous
Substances in soil or groundwater from a facility included in the Transferred
Assets or owned or leased by a Glass Machinery Share Company on the Closing Date
to surrounding properties shall not be considered such a disposal of Hazardous
Substances, or (2) relating to or arising out of conditions at, or the current
or former operations at, any facilities or locations not included in the
Transferred Assets (whether by fee ownership or leasehold interest) (including
any predecessors to such facilities or locations) or facilities or locations not
owned or leased on the Closing Date by a Glass Machinery Share Company;
(ix) except as provided in Section 10.02(a)(v), all
liabilities or obligations related to the Arbitration Cases; and
(x) all liabilities and obligations related to the litigation
described in item 3 of Schedule B.11.
"Financial Support Arrangements" means any obligations, contingent or
otherwise, of a Person in respect of any indebtedness, obligation or liability
(including assumed indebtedness, obligations or liabilities) of another Person,
including but not limited to remaining obligations or liabilities associated
with indebtedness, obligations or liabilities that are assigned, transferred or
otherwise delegated to another Person, if any, letters of credit and standby
letters of credit (including any related reimbursement or indemnity agreements),
direct or indirect guarantees, endorsements (except for collection or deposit in
the ordinary course of business), notes co-made or discounted, recourse
agreements, take-or-pay agreements, keep-well agreements, agreements to purchase
or repurchase such indebtedness, obligation or liability or any security
therefor or to provide funds for the payment or discharge thereof, agreements to
maintain solvency, assets, level of income or other financial condition,
agreements to make payment other than for value received and any other financial
accommodations.
"GAAP" means U.S. Generally Accepted Accounting Principles as in effect
on the date of the Agreement.
"Glass Machinery Business" means the development, production,
distribution and sale of glass and glass container making machines and systems
(and spare parts therefor) and glass container inspection machinery and systems
(and spare parts therefor) and the repair, refabrication and modification of
glass and glass container making machines and systems and glass container
inspection machines and systems, all as engaged in by the Glass Machinery Units
on the date of this Agreement.
"Glass Machinery Company" means each of the following corporations:
Emhart Glass Machinery Investments, Inc., a Delaware corporation; Emhart Inc., a
Delaware corporation; Emhart Sweden AB, a corporation formed under the laws of
Sweden; Aktiebolaget Sundsvalls Verkstader, a corporation formed under the laws
of Sweden; Emhart S.r.l., a corporation formed under the laws of Italy; Emhart
Glass SA, a corporation formed under the laws of Switzerland; Emhart Glass
Machinery (U.S.) Inc., a Delaware corporation; Emhart Glass Research, Inc., a
Delaware corporation, Emhart Deutschland GmbH, a corporation formed under the
laws of Germany; and Emhart (U.K.) Limited, a corporation formed under the laws
of England.
"Glass Machinery Division" means each of the unincorporated Glass
Machinery Division of Black & ▇▇▇▇▇▇ Asia Pacific Pte. Ltd. and the
unincorporated Glass Machinery Division of Nippon POP Rivets & Fasteners LTD.
"Glass Machinery Financial Statements" means the entirety of (a) the
special-purpose financial combining statements of operating income and net
assets of the Glass Machinery Business, as attached in Attachment IX to this
Agreement, (b) the Special Purpose Financial Statements (3/22/98) attached as
Attachment XIII and (c) the Statement of the Proposed Final Net Tangible Assets
to be established in accordance with Section 2.04(a).
"Glass Machinery Share Company" means each Glass Machinery Company the
Shares of which are being sold, directly or indirectly, hereunder.
"Glass Machinery Unit" means a Glass Machinery Company or a Glass
Machinery Division.
"Governmental Authority" means any foreign, domestic, federal,
territorial, state or local governmental authority, quasi-governmental
authority, instrumentality, court, government or self-regulatory organization,
commission, tribunal or organization (including, without limitation, the
European Community and the European Union) or any regulatory, administrative or
other agency, or any political or other subdivision, department or branch of any
of the foregoing.
"Hazardous Substances" means all hazardous or toxic substances, wastes,
materials or chemicals, petroleum (including crude oil or any fraction thereof)
and petroleum products, asbestos and asbestos-containing materials, pollutants,
contaminants and all other materials, substances and forces regulated pursuant
to, or that could form the basis of liability under any Environmental Law.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"Income Taxes" means any income, gains, net worth, surplus, franchise
or with respect to any interest, dividends or royalties, withholding taxes
(including interest, penalties or other additions to Tax) imposed by a Tax
Authority.
"Intellectual Property" means all patents, copyrights, technology,
know-how, processes, trade secrets, inventions, proprietary data, formulae,
research and development data and computer software programs; all trademarks,
trade names, service marks and service names; all registrations, applications,
recordings, licenses and common-law rights relating thereto, all rights to ▇▇▇
at law or in equity for any infringement or other impairment thereto, including
the right to receive all proceeds and damages therefrom, and all rights to
obtain renewals, continuations, divisions or other extensions of legal
protections pertaining thereto; and all other United States, state and foreign
intellectual property.
"Intellectual Property Assignment Agreements" means Assignment of
United States Trademarks, Trademark Registrations and Applications for
Registration, Assignment of Foreign Trademarks, Trademark Registrations and
Applications for Registration, Assignment of United States Patents and Patent
Applications and Assignment of Foreign Patents and Application for Patents, in
the forms contemplated by Attachments VIII, X, XI and XII to this Agreement.
"Inventory" means all items of inventory notwithstanding how classified
in the financial records of a Glass Machinery Unit, including all raw materials,
work-in-process and finished goods, reconditioned products and products to be
reconditioned products.
"IRS" means the Internal Revenue Service.
"Liens" means any pledge, security, interest, lien, charge,
encumbrance, mortgage, trust deed, or other restriction having like or similar
effect on sale, transfer or disposition, whether imposed by agreement, law or
otherwise..
"Material Adverse Effect" means (i) with respect to the Glass Machinery
Business, a material adverse effect on the assets, properties, business,
financial condition (including the tax position) or results of operations of the
Glass Machinery Business taken as a whole, or (ii) with respect to any other
Person, a material adverse effect on the assets, properties, business, financial
condition (including the tax position) or results of operations of such Person
and its Subsidiaries taken as a whole.
"Net Tangible Assets" means (i) all Transferred Assets of the Glass
Machinery Business, plus (ii) all assets of a Glass Machinery Share Company,
other than any Excluded Asset minus (iii) all (1) Assumed Liabilities of the
Glass Machinery Business, (2) all liabilities of a Glass Machinery Share
Company, other than any Excluded Liability and (3) goodwill, all expressed in
U.S. dollars and as calculated in accordance with the practices and policies
that were employed in the preparation of the Opening Statement, determined, in
each case, consistent with the Opening Statement and in accordance with Note 12
thereto and, in the case of the Final Net Tangible Asset Amount, Attachment
XVIII..
"Non US Benefit Arrangements" means Benefit Arrangements in respect of
Non US Transferred Employees.
"Non US Transferred Employees" means Transferred Employees who are not
US Transferred Employees.
"Opening Statement" means the Statement of Net Assets contained in the
Special Purpose Financial Statements for the quarter ended March 22, 1998
together with the notes thereto, as attached in Attachment XIII to this
Agreement.
"Permitted Liens" means any of the following:
(i) Liens for Taxes that (x) are not yet due or delinquent or
(y) are being contested in good faith by appropriate proceedings;
(ii) statutory Liens or landlords', carriers', warehousemen's,
mechanic's, suppliers', materialmen's or other like Liens arising in the
ordinary course of business with respect to amounts not yet overdue for a period
of 60 days or amounts being contested in good faith by appropriate proceedings;
(iii) easements, rights of way, restrictions and other similar
charges or encumbrances on real property interests, that, individually or in the
aggregate, do not materially interfere with the ordinary course of operation of
the Glass Machinery Business or the use of any such real property for its
current uses;
(iv) leases or subleases granted to others that do not
materially interfere with the ordinary conduct of the Glass Machinery Business;
(v) with respect to real property, title defects or
irregularities that do not in the aggregate materially impair the use of such
real property for its current use;
(vi) Liens in favor of a customer of the Glass Machinery
Business arising in the ordinary course of business;
(vii) Liens, title defects, encumbrances, easements and
restrictions, invalidities of leasehold interests (collectively, "Encumbrances")
that have not had, and could not reasonably be expected to have, a Material
Adverse Effect on the Glass Machinery Business; and
(viii) Encumbrances specifically disclosed in the Disclosure
Schedule or taken into account in the Opening Statement.
"Person" means an individual, a corporation, a general partnership, a
limited partnership, a limited liability company, limited liability partnership,
an association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Post-Closing Period" means any taxable period ending on or after the
Closing Date.
"Pre-Closing Period" means any taxable period that ends before the
Closing Date.
"Remedial Action(s)" means the investigation, clean-up or remediation
of contamination or environmental damage caused by, related to or arising from
the generation, use, handling, treatment, storage, transportation, disposal,
discharge, release, or emission of Hazardous Substances, including, without
limitation, investigations, response, removal and remedial actions under The
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, corrective action under The Resource Conservation and Recovery Act of
1976, as amended, and clean-up requirements under similar Environmental Laws.
"Representatives" means (i) with respect to Buyer, any of the
"Representatives" as defined in the Confidentiality Agreement and (ii) with
respect to B&D or any Seller, each of its respective directors, officers,
advisors, attorneys, accountants, employees or agents.
"Seller" means, each Seller of Shares and Transferred Assets as set
forth on Schedule 2.01.
"Services Agreement" means the Services Agreement substantially in the
form contemplated by Attachment XIV to this Agreement, as the same may be
amended from time to time.
"Shares" means all of the issued and outstanding shares of the
following Glass Machinery Companies which are being sold, to a Buyer Company
pursuant to this Agreement: Emhart (U.K.) Limited; Emhart Sweden AB;
Aktiebolaget Sundsvalls Verkstader; Emhart S.r.l; Emhart Glass Machinery (U.S.)
Inc. and Emhart Glass Research, Inc.
"Subsidiary" as it relates to any Person, shall mean with respect to
any Person, any corporation, partnership, joint venture or other legal entity of
which such Person, either directly or through or together with any other
Subsidiary of such Person, owns more than 50% of the voting power in the
election of directors or their equivalents, other than as affected by events of
default.
"Supplemental Agreements" means, collectively, the Supplemental Asset
Sale Agreements, and the Supplemental Share Sale Agreements.
"Supplemental Asset Sale Agreement" means each agreement between each
Seller of Transferred Assets and Assumed Liabilities and a Buyer Company,
substantially in the form of Attachment II-1, pursuant to which such Seller is
to transfer to a Buyer Company Transferred Assets and Assumed Liabilities.
"Supplemental Share Sale Agreement" means each agreement between each
Seller of Shares and a Buyer Company, substantially in the form of Attachment
II-2, pursuant to which such Seller is to transfer to a Buyer Company Shares and
a Glass Machinery Share Company is to convey and assign to such Seller the
Excluded Assets and Excluded Liabilities of such Glass Machinery Share Company.
"Tax Authority" means a foreign or United States federal, state or
local Governmental Authority having jurisdiction over the assessment,
determination, collection or imposition of any Tax or any private party having
such authority under applicable tax law.
"Tax Returns" means all returns (including information returns),
declarations, reports, estimates and statements regarding Taxes, required to be
filed with any Tax Authority.
"Taxes" means all taxes, charges, fees, levies or other assessments,
including without limitation, all net income, gross income, gross receipts,
sales, use, ad valorem, transfer, value added, franchise, profits, license,
withholding, payroll, employment, excise, estimated, severance, stamp,
occupation, property, net worth, capital or other taxes, customs, duties, fees,
assessments or charges of any kind whatsoever, together with any interest and
any penalties, additions to tax or additional amounts imposed by any Tax
Authority.
"Trademark Agreement" means the Trademark Agreement to be executed by
the parties substantially in the form of Attachment III.
"Transaction Documents" means this Agreement, the Supplemental
Agreements the Services Agreement, the Intellectual Property Assignment
Agreements, the Trademark Agreement, and any exhibits or attachments to any of
the foregoing, as the same may be amended from time to time.
"Transferred Assets" means, other than Excluded Assets, all of the
assets, properties, rights, licenses, permits, Contracts, causes of action and
business of every kind and description as the same shall exist on the Closing
Date, wherever located, real, personal or mixed, tangible or intangible, owned
by, leased by or in the possession of the Glass Machinery Divisions and Emhart
Glass Machinery Investments, Inc., Emhart Inc., Emhart Glass SA and Emhart
Deutschland GmbH, whether or not reflected in the books and records thereof, and
held or used primarily in the conduct of the Glass Machinery Business as the
same shall exist on the Closing Date, and including, without limitation, except
as otherwise specified herein, all direct or indirect right, title and interest
of any Seller of Transferred Assets in, to and under:
(i) all personal property and interests therein (other than
Intellectual Property), including machinery, equipment, furniture, office
equipment, communications equipment, vehicles, storage tanks, spare and
replacement parts, fuel and other tangible property (and interests in any of the
foregoing) owned by any such Seller that are used primarily in connection with
the Glass Machinery Business;
(ii) all Inventory that is owned by any such Seller and held
for sale, use or consumption primarily in the Glass Machinery Business;
(iii) all Contracts that relate primarily to the Glass
Machinery Business to which any such Seller is a party or by which it is bound;
(iv) all accounts, accounts receivable and notes receivable
whether or not billed, accrued or otherwise recognized in the Opening Statement
or taken into account in the determination of the Final Net Tangible Asset
Amount, together with any unpaid interest or fees accrued thereon or other
amounts due with respect thereto of any such Seller to the extent they relate to
the Glass Machinery Business, and any security or collateral for any of the
foregoing;
(v) all expenses that have been prepaid by any such Seller to
the extent relating to the operation of the Glass Machinery Business, including
but not limited to ad valorem Taxes, lease and rental payments;
(vi) all of any such Seller's rights, claims, credits, causes
of action or rights of set-off against Persons, other than Black & ▇▇▇▇▇▇ or any
of its Affiliates, to the extent relating to the Glass Machinery Business or the
Transferred Assets, including, without limitation, unliquidated rights under
manufacturers' and vendors' warranties;
(vii) all Intellectual Property of any such Seller (other than
Intellectual Property constituting an Excluded Asset) used or held for use
primarily in the Glass Machinery Business, including the goodwill of the Glass
Machinery Business symbolized thereby, it being understood and agreed that the
Intellectual Property used or held for use primarily in the Glass Machinery
Business that is registered or as to which an application for registration is
pending is listed on Attachment XV;
(vii) all transferable franchises, licenses, permits or other
governmental authorizations owned by, or granted to, or held or used by, any
such Seller and primarily related to the Glass Machinery Business;
(ix) except to the such Seller is required to retain the
originals pursuant to any Applicable Law (in which case copies will be provided
to Buyer upon request), all business books, records, files and papers, whether
in hard copy or computer format, of any such Seller used primarily in the Glass
Machinery Business, including, without limitation, books of account, invoices,
engineering information, sales and promotional literature, manuals and data,
sales and purchase correspondence, lists of present and former suppliers, lists
of present and former customers, personnel and employment records of present or
former employees, documentation developed or used for accounting, marketing,
engineering, manufacturing, or any other purpose relating primarily to the
conduct of the Glass Machinery Business at any time prior to the Closing;
(x) all Tax assets that are not an Excluded Asset;
(xi) the right to represent to third parties that Buyer is the
successor to the Glass Machinery Business; and
(xii) all insurance proceeds due or to become due to any such
Seller (except to the extent relating to Excluded Assets or Excluded
Liabilities, net of any retrospective premiums, deductibles, retention or
similar amounts, arising out of or related to damage, destruction or loss of any
property or asset of or used primarily in connection with the Glass Machinery
Business to the extent of any damage or destruction that remains unrepaired, or
to the extent any property or asset remains unreplaced at the Closing Date.
"US Benefit Arrangements" means Benefit Arrangements in respect of US
Transferred Employees.
"US Transferred Employees" means Transferred Employees employed by the
Glass Machinery Business in the United States.
"WARN" means the Worker Adjustment Retraining and Notification Act, as
amended.
(b) "To the knowledge," "known by" or "known" (and any similar phrase) means (i)
with respect to Black & ▇▇▇▇▇▇, to the actual knowledge of any of the General
Counsel, Chief Financial Officer, Controller and Treasurer of Black & ▇▇▇▇▇▇,
the President of the Glass Machinery Business and the controller of each Glass
Machinery Unit, and shall be deemed to include a representation that a
reasonable investigation or inquiry of the subject matter thereof has been made
of such individuals, and (ii) with respect to Buyer, to the actual knowledge of
Senior Vice Presidents or higher ranking officers of Buyer, and shall be deemed
to include a representation that a reasonable investigation or inquiry of the
subject matter thereof has been made of such individuals.
(c) "Specifically disclosed" or "specific disclosures" shall only mean those
disclosures made in the Disclosure Schedules which are indicated with an
asterisk.
(d) Each of the following terms is defined in the Section set forth opposite
such term:
Term Section
Active Employee....................................................D.01
Adjusted Purchase Price............................................2.02
Agreement......................................................Preamble
Black & ▇▇▇▇▇▇.................................................Preamble
Buyer..........................................................Preamble
Buyer's Carryback ................................................ 7.07
Seller's Carryforward .............................................7.07
Buyer's Swiss Pension Plan ....................................... D.18
Buyer's U.K. Pension Plan ........................................ D.15
Buyer's U.S. Pension Plan ....................................... D.08
Buyer Period .................................................... 7.08
Closing............................................................2.03
Competing Business.................................................5.06
Encumbrances..........................................................A
Exchange Consideration.............................................2.02
Final Net Tangible Asset Amount....................................2.04
Hedge Closure Confirmation ....................................... 7.08
Hedge Contracts .................................................. 7.08
Indemnified Claim.................................................10.03
Indemnified Party.................................................10.03
Indemnifying Party................................................10.03
Insurance Liabilities..............................................6.03
Non-U.S. Transferred Employee......................................D.__
Leased Real Property...............................................B.07
Owned Real Property................................................B.07
PBGC...............................................................B.18
Proceedings....................................................... A
Proposed Final Net Tangible Asset Amount...........................2.04
Referee...........................................................10.03
Seller Period .....................................................7.07
Seller's German Pension Plan ......................................D.16
Seller's Hourly Pension Plan ..................................... D.09
Seller's Japanese Plan ............................................D.17
Seller's Savings Bank .............................................D.10
Seller's Swiss Pension Plan .......................................D.18
Seller's U.K. Pension Plan ....................................... D.15
Seller's U.S. Pension Plan.........................................D.08
Successor Hourly Pension Plan .....................................D.09
Successor Savings Plan.............................................D.10
Surviving Representations or Covenants............................10.01
Systems...........................................................B.21
Third Party Claim.................................................10.03
Transferred Employees..............................................D.01
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF BLACK & ▇▇▇▇▇▇
Black & ▇▇▇▇▇▇ hereby represents and warrants to Buyer, that:
B.01 Corporate Existence and Power. Black & ▇▇▇▇▇▇ is a corporation
duly incorporated, validly existing and in good standing under the laws of the
state of Maryland. Each Seller of Transferred Assets and each Glass Machinery
Share Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the state or jurisdiction of its incorporation and
has all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on the Glass Machinery Business as now
conducted. Each Seller of Transferred Assets and each Glass Machinery Share
Company is duly qualified to do business as a foreign corporation in each
jurisdiction where the character of the property owned or leased by it or the
nature of its activities make such qualification necessary to carry on the Glass
Machinery Business as now conducted, except where the failure to be so qualified
has not been, and could not reasonably be expected to be material to the Glass
Machinery Business.
B.02 Corporate Authorization. The execution, delivery and performance
by Black & ▇▇▇▇▇▇ and each Seller of each of the Transaction Documents to which
it is a party and the consummation by Black & ▇▇▇▇▇▇ and each Seller of the
Contemplated Transactions are within its corporate powers and have been duly
authorized by all necessary corporate action on its part. Each of the
Transaction Documents to which it is a party constitutes or will constitute at
Closing a legal, valid and binding agreement of Black & ▇▇▇▇▇▇ and each Seller,
enforceable against it in accordance with its terms (i) except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, including the effect of statutory and other laws
regarding fraudulent conveyances and preferential transfers and (ii) subject to
the limitations imposed by general equitable principles (regardless of whether
such enforceability is considered in a proceeding at law or in equity).
B.03 Capitalization. The designations of each class of the capital
stock of each of the Glass Machinery Share Companies, and the number of
authorized and issued shares thereof is as described on Schedule B.03. All of
the Shares and all other capital stock or other securities of the Glass
Machinery Share Companies have been validly issued and are fully paid and
nonassessable. Except as described in Schedule B.03, no shares of capital stock
or other securities of any of the Glass Machinery Share Companies are held in
treasury, and there are no other issued or outstanding shares of capital stock
or other securities of the Glass Machinery Share Companies and no other issued
or outstanding securities of any of the Glass Machinery Share Companies that are
at any time convertible into or exchangeable or exercisable for any capital
stock or other securities of any of such Glass Machinery Companies. None of the
Glass Machinery Share Companies are subject to any commitment or obligation that
would require the issuance or sale of additional shares of capital stock or
other securities of any of such Glass Machinery Companies at any time under
options, subscriptions, warrants, rights or any other obligations. There are no
agreements, commitments, restrictions or arrangements (whether or not legally
enforceable) relating to ownership (including without limitation repurchase or
redemption) or voting of any shares of capital stock or other securities of any
Glass Machinery Share Companies. Except as set forth on Schedule B.03, no Glass
Machinery Share Company has, nor any of the Transferred Assets includes, any
Subsidiary or any equity interest or other investment in any corporation,
partnership, joint venture or other entity of any kind other than another Glass
Machinery Company.
B.04 Ownership of Shares. The Persons listed in Schedule B.03 are the
record and beneficial owners of the Shares, all of which are free of any lien,
security interest, charge, encumbrance or claim. Such Persons have, or will have
on the Closing Date, the right to, and will in fact, transfer to the Buyer or
Buyer's Companies complete and unencumbered legal and equitable title to the
Shares which are to be transferred to the Buyer or Buyer's Companies.
B.05 Governmental Authorization. The execution, delivery and
performance by Black & ▇▇▇▇▇▇ and each Seller of the Transaction Documents to
which it is a party require no action by or in respect of, or consent or
approval of, or filing with, any Governmental Authority other than:
(i) compliance with any applicable requirements of
the HSR Act;
(ii) actions, consents, approvals or filings set
forth in Schedule B.05 or otherwise expressly referred to in this
Agreement; and
(iii) such other consents, approvals, authorizations,
permits and filings the failure to obtain or make would not be, in the
aggregate, material to the Glass Machinery Business.
B.06 Non-Contravention. Except as set forth in Schedule B.06, the
execution, delivery and performance by Black & ▇▇▇▇▇▇ and each Seller of each of
the Transaction Documents to which it is a party do not and will not (i)(A)
contravene or conflict with the charter or bylaws of Black & ▇▇▇▇▇▇, a Seller or
any Glass Machinery Share Company, (B) assuming compliance with the matters
referred to in Section B.05, contravene or conflict with or constitute a
violation of any provisions of any Applicable Law binding upon Black & ▇▇▇▇▇▇, a
Seller or any Glass Machinery Share Company; (C) assuming compliance with the
matters referred to in Section B.05, constitute a default under or give rise to
any right of termination, cancellation or acceleration of, or to a loss of any
benefit relating exclusively to the Glass Machinery Business to which a Seller
of the Transferred Assets is entitled under, any Contract binding upon such a
Seller relating exclusively to the Glass Machinery Business or by which any of
the Transferred Assets is or may be bound or any license, franchise, permit or
similar authorization held by such a Seller relating exclusively to the Glass
Machinery Business; or (D) assuming compliance with the matters referred to in
Section B.05, constitute a default under or give rise to any right of
termination, cancellation or acceleration of, or to a loss of any benefit to
which a Glass Machinery Share Company is entitled under any Contract (other than
an Excluded Asset) to which such a Glass Machinery Share Company is a party or
may be bound or any license, franchise, permit or similar authorization held by
such a Glass Machinery Share Company; except, in the case of clauses (B), (C)
and (D) for any such contravention, conflict, violation, default, termination,
cancellation, acceleration or loss that could not reasonably be expected to be
material to the Glass Machinery Business or (ii) result in the creation or
imposition of any Lien on any Transferred Asset or asset (other than Excluded
Assets) of a Glass Machinery Share Company, other than Permitted Liens.
B.07 Financial Statements. The Glass Machinery Financial Statements
present fairly the financial position and results of operations of the Glass
Machinery Business at the dates and for the periods set forth therein, in
conformity with the principles and procedures set forth in the notes thereto.
B.08 Absence of Certain Changes. Except for matters that would be
permitted in accordance with Section 5.01 if they occurred after the date of
this Agreement or as specifically disclosed in Schedule B.08, from March 22,
1998 to the date of this Agreement, there has not been any material adverse
change in the business, financial condition (including its tax position) or
results of operations of the Glass Machinery Business and there has not been:
(a) any event or occurrence that has been material to the
Glass Machinery Business, other than those resulting from changes, whether
actual or prospective, in general conditions applicable to the industries in
which the Glass Machinery Business is involved or general economic conditions;
(b) any material damage, destruction or other casualty loss
affecting (i) the Glass Machinery Business or (ii) any material assets that
would constitute Transferred Assets if owned, held or used by a Seller of
Transferred Assets on the Closing Date or (iii) any material asset (other than
an Excluded Asset) of a Glass Machinery Share Company;
(c) any transaction or commitment made, or any Contract
entered into (i) by a Glass Machinery Share Company, or (ii) by a Seller of
Transferred Assets relating primarily to the Glass Machinery Business or any
assets that would constitute Transferred Assets if owned, held or used by such a
Seller on the Closing Date (including the acquisition or disposition of any
assets), in either case, material to the Glass Machinery Business taken as a
whole, other than transactions and commitments in the ordinary course of
business and those contemplated by this Agreement;
(d) any termination or amendment (i) by a Glass Machinery
Share Company of any Contract (other than an Excluded Asset) or other right or
(ii) by a Seller of Transferred Assets of any Contract or other right relating
primarily to the Glass Machinery Business, in either case, material to the Glass
Machinery Business taken as a whole, other than terminations or amendments made
in the ordinary course of business and those contemplated by this Agreement;
(e) any sale or other disposition by a Seller of Transferred
Assets or a Glass Machinery Share Company, of more than an aggregate of $500,000
of assets (other than the sale of Inventory (including obsolete Inventory
whether or not in the ordinary course of business) which would constitute
Transferred Assets or assets (other than Excluded Assets) of a Glass Machinery
Share Company on the Closing Date;
(f) any increase in the compensation of any current employee
of the Glass Machinery Business at a level of vice president or above, other
than nondiscretionary increases pursuant to Employee Plans or Benefit
Arrangements specifically disclosed in Schedule B.20; and
(g) any cancellation, compromise, waiver or release by (i) a
Seller of Transferred Assets of any claim or right (or a series of related
rights and claims) related to the Glass Machinery Business, or (ii) a Glass
Machinery Share Company of any claim or right (or a series of related rights and
claims) other than, in either case, cancellations, compromises, waivers or
releases in the ordinary course of business or relating to an Excluded Asset.
B.09 Sufficiency of and Title to the Transferred Assets.
(a) Except as specifically disclosed in Schedule B.09, the
Transferred Assets, and the assets (other than Excluded Assets) of the Glass
Machinery Share Companies, together with the services to be provided to Buyer
Companies pursuant to the Services Agreement, and the Intellectual Property to
be transferred to Buyer pursuant to the Trademark Agreement, constitute, and on
the Closing Date will constitute, all of the assets and services that are
necessary to permit the operation of the Glass Machinery Business in
substantially the same manner as such operations have heretofore been conducted.
(b) Except as specifically disclosed in Schedule B.09, subject
to the receipt of any consents or approvals of any other Person, upon
consummation of the Contemplated Transactions, Buyer will have acquired good and
marketable title in and to, or a valid leasehold interest in, each of the
Transferred Assets (other than any Intellectual Property), free and clear of all
Liens, except for Permitted Liens.
(c) Schedule B.09 includes a true and complete list of all
real property (i) owned by a Glass Machinery Share Company (or real property
which such a Glass Machinery Company has the right to acquire), and (ii) owned
by a Seller of Transferred Assets (or real property which such a Seller has the
right to acquire in connection with its operation of the Glass Machinery
Business) which is included in the Transferred Assets, (collectively, the "Owned
Real Property"). Schedule B.09 sets forth (i) the address of each parcel of
Owned Real Property and (ii) the owner of such Owned Real Property.
(d) Schedule B.09 includes a true and complete list of all
agreements (together with any amendments thereof) pursuant to which (i) a Seller
of Transferred Assets leases, subleases or otherwise occupies (whether as
landlord, tenant, subtenant or other occupancy arrangement) any real property
used in the Glass Machinery Business or (ii) a Glass Machinery Share Company,
leases, subleases, or otherwise occupies (whether as landlord, tenant, subtenant
or other occupancy arrangement) any real property in connection with the
operation of the Glass Machinery Business (collectively, the "Leased Real
Property"). Schedule B.09 sets forth (i) the address of each parcel of Leased
Real Property and (ii) the owner of the leasehold, subleasehold or occupancy
interest for each Leased Real Property.
B.10 No Undisclosed Liabilities. There are (a) no liabilities (other
than Excluded Liabilities) of a Glass Machinery Share Company, or (b) no
liabilities of a Seller of Transferred Assets relating to the Glass Machinery
Business that constitute Assumed Liabilities, in either case, of any kind
whatsoever, whether accrued, contingent, absolute, determined, determinable or
otherwise, other than:
(i) liabilities disclosed in or provided for in the
Opening Statement and liabilities for matters taken into account in the
determination of the Final Net Tangible Asset Amount;
(ii) liabilities specifically (x) disclosed in
Schedule B.10 and B.11, (y) related to any contract, agreement, lease,
license, commitment, sales or purchase order or other undertaking
disclosed in the Disclosure Schedules or (z) related to any Employee
Plan or Benefit Arrangements identified in Exhibit D or disclosed in
Schedule B.20;
(iii) liabilities incurred in the ordinary course of
business since March 31, 1998;
(iv) liabilities not required to be accrued for or
reserved against in accordance with GAAP; and
(v) liabilities in addition to those referenced in
the foregoing clauses (i) through (iv), that in the aggregate could not
reasonably be expected to be material to the Glass Machinery Business.
B.11 Litigation. Except for Excluded Liabilities, as specifically
disclosed in Schedule B.11 or reserved against or referred to in the Opening
Statement, there is no action, suit, investigation or proceeding pending
against, or to the knowledge of Black & ▇▇▇▇▇▇, threatened against or affecting,
a Glass Machinery Share Company, the Glass Machinery Business or any Transferred
Asset before any Governmental Authority that could reasonably be material to the
Glass Machinery Business.
B.12 Material Contracts.
(a) Except as set forth on Schedule B.12 and for Contracts
that are Excluded Assets or Excluded Liabilities, as of the date hereof, the
Sellers of Transferred Assets, with respect to the Glass Machinery Business, and
the Glass Machinery Share Companies are not parties to or otherwise bound by or
subject to:
(i) any Contract that involves the receipt or payment
by any Glass Machinery Unit of more than $500,000 in any twelve (12)
month period other than Contracts relating to the sale of goods or the
provision of services by a Glass Machinery Unit entered in the ordinary
course of business by such Glass Machinery Unit;
(ii) any written employment, severance, consulting or
sales representative Contract (other than those that relate to Active
Employees) which contains an obligation (excluding commissions) to pay
more than $100,000 per year;
(iii) any Contract containing any covenant limiting
the freedom of a Seller of Transferred Assets, with respect of the
Glass Machinery Business or the operations of the Glass Machinery
Business, or a Glass Machinery Share Company to engage in any line of
business or compete with any Person in any geographic area in any
material respect if such Contract will be binding after the Closing
other than sales agency agreements granting exclusive territories to
sales agents and Intellectual Property licenses or sharing agreements
limiting the use of Intellectual Property;
(iv) any Contract in effect on the date of this
Agreement relating to the disposition or acquisition of the assets of,
or any interest in, any business enterprise other than in the ordinary
course of business or, in the case of Sellers of Transferred Assets,
Contracts which do not relate to the Glass Machinery Business;
(v) any Financial Support Arrangements;
(vi) any indebtedness for borrowed money that would
constitute an Assumed Liability or a liability (other than an Excluded
Liability) of a Glass Machinery Share Company, if in existence on the
Closing Date, with a principal amount in excess of $500,000;
(vii) any offset agreement entered into in connection
with an international sales transaction and relating to any Contract
that imposes an obligation to perform that will continue in effect on
or after the Closing Date; or
(viii) any other material Contract not otherwise
disclosed in the Disclosure Schedules.
(b) Except as specifically disclosed in Schedule B.12, each
Contract disclosed in Schedule B.12 is a legal, valid and binding obligation of
the respective Seller or Glass Machinery Share Company enforceable against such
Person in accordance with its terms (except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally, including the
effect of statutory and other laws regarding fraudulent conveyances and
preferential transfers, and subject to the limitations imposed by general
equitable principles regardless of whether such enforceability is considered in
a proceeding at law or in equity), and the respective Seller or Glass Machinery
Share Company is not in breach or default and has not failed to perform any
obligation thereunder, and, to the knowledge of Black & ▇▇▇▇▇▇, there does not
exist any event, condition or omission which would constitute a breach or
default (whether by lapse of time or notice or both) by any other Person,
except, in either case, for any such default, failure or breach as has not had,
and could not reasonably be expected to be material to the Glass Machinery
Business.
B.13 Licenses and Permits. Except as specifically disclosed in Schedule
B.13, each Seller of Transferred Assets and each Glass Machinery Share Company
has all material licenses, franchises, permits and other similar authorizations
affecting, or relating in any way to, the Glass Machinery Business required by
law to be obtained by each Seller of Transferred Assets and each such Glass
Machinery Share Company to permit such Person to conduct the Glass Machinery
Business in substantially the same manner as the Glass Machinery Business has
heretofore been conducted.
B.14 Finders' Fees. Except for ▇▇▇▇▇▇ Brothers Inc., whose fees will be
paid by Black & ▇▇▇▇▇▇, there is no investment banker, broker, finder or other
intermediary that has been retained by or is authorized to act on behalf of
Black & ▇▇▇▇▇▇ and, except for the employees who are parties to the agreements
described in Section B.20(b)(xi), there is no employee of the Glass Machinery
Business who might be entitled to any fee or commission from Black & ▇▇▇▇▇▇ or
Buyer or any of their Affiliates upon consummation of the Contemplated
Transactions.
B.15 Environmental Compliance. Except as specifically disclosed in
Schedule B.15, the Glass Machinery Business conducted by the Sellers of
Transferred Assets and the business conducted by the Glass Machinery Share
Companies, is and has been in substantial compliance with all applicable
Environmental Laws, and each of the Sellers of the Transferred Assets and the
Glass Machinery Share Companies has obtained all material permits, licenses and
other authorizations that are required under applicable Environmental Laws.
Except as specifically disclosed in Schedule B.15,(i) the Glass Machinery
Business conducted by the Sellers of Transferred Assets and the business
conducted by the Glass Machinery Share Companies is and has been in material
compliance with the terms and conditions under which the permits, licenses and
other authorizations referenced in the preceding sentence were issued or
granted, (ii) the Sellers of Transferred Assets hold all material permits
required by Environmental Laws that are appropriate and necessary to conduct the
Glass Machinery Business as presently conducted in all material respects and to
operate the Transferred Assets in all material respects as they are presently
operated; (iii) the Glass Machinery Share Companies hold all material permits
required by Environmental Laws that are appropriate and necessary to conduct
their businesses as presently conducted in all material respects and to operate
their assets (other than Excluded Assets) in all material respects as they are
presently operated; (iv) no suspension, cancellation refusal to renew or
termination of any permit referred to in clauses (ii) or (iii) is pending or
threatened; (v) the Sellers of Transferred Assets have not received notice of
any material Environmental Claim relating to or affecting the Glass Machinery
Business or the Transferred Assets, and there is no such threatened
Environmental Claim or any circumstances, conditions or events that could give
rise to such a claim; (vi) the Sellers of Transferred Assets, in connection with
the Glass Machinery Business or the Transferred Assets, have not entered into,
agreed to, or are subject to any judgment, decree, order or other similar
requirement of any Governmental Authority under any Environmental Laws; (vii)
the Glass Machinery Share Companies have not received notice of any material
Environmental Claim and there is no such threatened Environmental Claim; (viii)
neither Black & ▇▇▇▇▇▇ nor any of its Affiliates received written notice of any
material Environmental Claim and there is no such threatened Environmental Claim
or any circumstances, conditions or events that could give rise to such a claim;
(ix) the Glass Machinery Share Companies have not entered into, agreed in
writing to, or are subject to any judgment, decree, order or other similar
requirement of any Governmental Authority under any Environmental Laws.
B.16 Compliance with Laws. Except as specifically disclosed in
Schedules B.15 and B.16, for violations or infringements of Environmental Laws,
and for violations or infringements that have not had, and may not reasonably be
expected to be material to the Glass Machinery Business, the operation by the
Sellers of Transferred Assets of the Glass Machinery Business and the operation
of the business conducted by the Glass Machinery Share Companies have not
violated or infringed, and do not violate or infringe, in any material respect
any Applicable Law or any order, writ, injunction or decree of any Governmental
Authority.
B.17 Intellectual Property. With respect to (a) Intellectual Property
of each Seller of Transferred Assets that constitutes Transferred Assets and (b)
Intellectual Property of a Glass Machinery Share Company (other than
Intellectual Property constituting an Excluded Asset), except as specifically
disclosed in Schedule B.17:
(a) Each Seller of Transferred Assets and each Glass Machinery
Share Company owns, free and clear of all Liens other than Permitted Liens, and
subject to any licenses granted by the Seller or Glass Machinery Company prior
to the Closing Date, each of which is listed in Schedule B.12(a)(i), all right,
title and interest in such Intellectual Property and such Intellectual Property,
to the extent registered, is unexpired and has not been abandoned;
(b) The use of such Intellectual Property by a Seller of
Transferred Assets in connection with the operation of the Glass Machinery
Business as heretofore conducted or by a Glass Machinery Company in connection
with the operation of the Glass Machinery Business or otherwise does not
conflict with, infringe upon or violate the intellectual property rights of any
other Persons, except to the extent that such conflict, infringement or
violation has not been, and cannot reasonably be expected to be, material to the
Glass Machinery Business;
(c) The operations of the Glass Machinery Business, as
presently conducted, do not infringe upon or violate the intellectual property
rights of any other Persons, except to the extent that such conflict,
infringement or violation has not been, and cannot reasonably be expected to be,
material to the Glass Machinery Business;
(d) The Sellers of Transferred Assets and the Glass Machinery
Share Companies have the right to use all Intellectual Property used by the
Glass Machinery Business and necessary for the continued operation of the Glass
Machinery Business in substantially the same manner as its operations have
heretofore been conducted, except where the failure to have any such
Intellectual Property has not been, and could not reasonably be expected to be
material to the Glass Machinery Business; and
(e) Upon the consummation of the Closing hereunder, (i) Buyer
Companies will be vested with all of the Sellers of Transferred Assets' rights,
title and interest in, and rights and authority to use in connection with the
Glass Machinery Business, all of the Intellectual Property that constitute
Transferred Assets and (ii) such Intellectual Property, together with the
Intellectual Property owned by the Glass Machinery Share Companies (other than
Excluded Assets), and the Intellectual Property licensed to Buyer in accordance
with the Trademark Agreement and any other interests in Intellectual Property
transferred hereunder will collectively constitute such rights and interests in
Intellectual Property which are necessary for the continued operation of the
Glass Machinery Business as a whole in substantially the same manner as its
operations have heretofore been conducted, except where any inaccuracy of clause
(ii) has not been, and could not reasonably be expected to be, material to the
Glass Machinery Business.
(f) To the knowledge of Black & ▇▇▇▇▇▇ (i) such Intellectual
Property is valid or enforceable and (ii) except as specifically disclosed in
Section (ii) of Schedule B.17, no Person is infringing or violating such
Intellectual Property. .
B.18 Taxes.
(a) Each Seller of Transferred Assets, each Glass Machinery
Share Company and each Affiliated Group, has exercised reasonable care in the
preparation of, and has duly and timely filed, all applicable material Tax
Returns with respect to all Taxes required to be filed to the date hereof and,
as of the Closing Date will have exercised reasonable care in the preparation
of, and will have timely filed, all applicable Tax Returns with respect to Taxes
required to have been filed prior to the Closing Date. All Taxes shown on the
Tax Returns or pursuant to any declarations or assessments received by a Seller
of Transferred Assets or a Glass Machinery Share Company (including estimated
Taxes), have been duly and timely paid, and no such Taxes have created a Lien
(other than a Permitted Lien) against any of the Transferred Assets or the
assets (other than Excluded Assets) of a Glass Machinery Share Company, or
impair the ability of a Seller to transfer the Transferred Assets to Buyer
Companies free and clear of any Lien (other than a Permitted Lien) in accordance
with the terms of this Agreement. All such Tax Returns are true, correct and
complete in all material respects. Except for Taxes that are Excluded
Liabilities, there exists no Tax deficiency or unpaid Tax assessed by any
Governmental Authority against a Seller of Transferred Assets or a Glass
Machinery Share Company which is not fully provided for in the respective
Financial Statements. The statement of the Final Net Tangible Asset Amount
established in accordance with Section 2.04(a) will include sufficient
provisions for all Taxes that are Assumed Liabilities.
(b) As of the date of this Agreement, Schedule B.18 contains a
list of all states and other jurisdictions where each Seller of Transferred
Assets (with respect to Transferred Assets) and each Glass Machinery Share
Company (with respect to its assets other than Excluded Assets), have filed Tax
Returns during the past three years.
B.19 Insurance. Schedule B.19 contains a correct and complete list of
all material policies of insurance held by (a) any Seller of Transferred Assets
that are in effect on the date of this Agreement and that insure the Glass
Machinery Business or (b) any Glass Machinery Share Company. None of the
insurance carriers listed in Schedule B.19 are related to or affiliated with
Black & ▇▇▇▇▇▇, other than Shenandoah Insurance, Inc. Black & ▇▇▇▇▇▇ has not
received notice or any other indication from any insurer or agent (other than
Shenandoah Insurance, Inc.) of any intent to cancel or not to renew any of the
insurance policies listed in Schedule B.19, except for cancellations or failures
to renew that will occur as a result of the Closing.
B.20 Employee Benefit Matters.
(a) Except as listed in Schedule B.20 there is no Employee
Plan or material Benefit Arrangement which covers Transferred Employees and no
collective bargaining agreement covering Transferred Employees.
(b) Except as specifically disclosed in Schedule B.20, with
respect to the Glass Machinery Business:
(i) neither Black & ▇▇▇▇▇▇ nor any member of its
"Controlled Group" (defined as any organization which is a member of a
controlled group of organizations within the meaning of Code Sections
414(b), (c), (m) or (o)) has ever contributed to or had any liability
to a multi-employer plan, as defined in Section 3(37) of ERISA, which
could reasonably be expected to be, material to the Glass Machinery
Business;
(ii) no fiduciary of any funded Employee Plan has
engaged in a nonexempt "prohibited transaction" (as that term is
defined in Section 4975 of the Code and Section 406 of ERISA) which
could subject Buyer to a penalty tax imposed by Section 4975 of the
Code;
(iii) no Employee Plan has incurred an "accumulated
funding deficiency" within the meaning of Section 412 of the Code or
similar non-U.S. Applicable Law, whether or not waived;
(iv) each Employee Plan and Benefit Arrangement has
been established and administered in all material respects in
accordance with its terms and in compliance with Applicable Law and all
contributions to be made to such plans have been made in accordance
with Applicable Law and the regulations of such plans;
(v) no Employee Plan subject to Title IV of ERISA has
incurred any material liability under such title other than for the
payment of premiums to the Pension Benefit Guaranty Corporation
("PBGC"), all of which have been paid when due;
(vi) no defined benefit Employee Plan has been
terminated; nor have there been any "reportable events" (as that term
is defined in Section 4043 of ERISA and the regulations thereunder)
which would present a risk that an Employee Plan would be terminated by
the PBGC in a distress termination;
(vii) each Employee Plan intended to qualify under
Section 401 of the Code has received a determination letter that it is
so qualified and no event has occurred with respect to any such
Employee Plan which could cause the loss of such qualification or
exemption;
(viii) with respect to each Employee Plan listed in
Schedule B.20, Black & ▇▇▇▇▇▇ has made available to Buyer the most
recent copy (where applicable) of (1) the plan document; (2) the most
recent determination letter; (3) any summary plan description; and (4)
Form 5500;
(ix) with respect to the Transferred Employees, there
are no post-retirement medical or health plans in effect;
(x) there are no actions, claims or investigations
pending or threatened, against any Employee Plan, Benefit Arrangement,
or any administrator, fiduciary or sponsor thereof with respect to the
Glass Machinery Business, other than benefit claims arising in the
normal course of operation of such Employee Plan or Benefit
Arrangement; and
(xi) except with respect to the Letter Agreements
with Messrs. ▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ disclosed under Sections B(f)(9)
and (10) of Schedule B.20 and the Severance Agreements disclosed under
Sections E(2)(4), E(e)(1), E(f)(2) through (6) and E(h)(6) through (8)
of Schedule B.20, no Benefit Arrangement or other agreement or
arrangement exists that could result in the payment to any present or
former employee of the Glass Machinery Business of any money or other
property or accelerate or provide any other rights or benefits to any
present or former employee of the Glass Machinery Business as a result
of the transaction contemplated by this Agreement, whether or not such
payment would constitute a parachute payment within the meaning of Code
Section 280G.
(c) Labor Controversies. The Glass Machinery Units (i) are in
substantial compliance in all material respects with all Applicable Laws
respecting employment and employment practices, terms and conditions of
employment and wages and hours except for the matters described in schedule
B.11, (ii) there is no labor strike, dispute, slowdown or stoppage actually
pending or, to Black & ▇▇▇▇▇▇'▇ knowledge, threatened against or affecting the
Glass Machinery Units, (iii) except that the collective bargaining agreement
with the union representing the unionized employees at the Hartford Division has
expired and a new collective bargaining agreement has not yet been executed,
since 1989 none of the Glass Machinery Units have experienced any material
strike, work stoppage or other labor difficulty.
B.21 Year 2000 Matters. The Glass Machinery Business has implemented
Plans (the "Y2K Remediation Plans") to take the actions required to permit the
proper functioning (but only to the extent that such proper functioning would
otherwise be impaired by the occurrence of the year 2000) in and following the
year 2000 of "Systems" (as herein defined) material to the Glass Machinery
Business. The Y2K Remediation Plans (including the testing of all Systems of the
Glass Machinery Business and other equipment after implementation of the Y2K
Remediation Plans) are designed to and are being implemented in a manner that
will prevent impairment in and following the year 2000 of (i) Systems owned,
operated, manufactured or repaired by the Glass Machinery Business, and (ii)
Systems supplied by others or with which the computer systems of the Glass
Machinery Business interface including any System already installed and
operating at a customer's site but only to the extent the Glass Machinery
Business has an existing or contingent year 2000 liability with respect to such
System. The costs that the Glass Machinery Business has not incurred as of the
Closing Date for implementation of the Y2K Remediation Plans are either (i)
covered by the amount of USD$1,500,000 referred to in paragraph 2 of Attachment
V of this Agreement, or (ii) sufficiently provided for in the statement of the
Final Net Tangible Asset Amount to be prepared in accordance with section
2.04(a) of the Transaction Agreement. Except for (i) implementation of the Y2K
Remediation Plans and (ii) Systems required to provide the services provided to
the Glass Machinery Business by Black & ▇▇▇▇▇▇ and its Affiliates, the Systems
of the Glass Machinery Business are and, with ordinary course upgrading and
maintenance, will continue to be, sufficient for the conduct of the Glass
Machinery Business as currently conducted. "Systems" means computer systems and
other equipment containing embedded microchips.
B.22 Facilities. The facilities and equipment of the Glass Machinery
Business are in all material respects in a good state of repair and operating
condition for use in the ordinary course of business, normal wear and tear
excepted.
B.23 Product Liability Claims. Except as specifically disclosed in
Schedule B.23, since 1989 no law suits, claims, demands or notices of personal
injuries have been asserted against any of the Glass Machinery Units Sellers
relating to any of the products manufactured and sold by the Glass Machinery
Business.
B.24 Disclosure. The representations and warranties contained in this
Exhibit B do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Exhibit B not misleading.
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Black & ▇▇▇▇▇▇ that:
C.01 Organization and Existence. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of
Switzerland and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted. As of the Closing Date, each of the Buyer Companies shall be a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and shall have all corporate powers
and all governmental licenses, authorizations, consents and approvals required
to carry on its business as then conducted. As of the Closing Date, each Buyer
Company will be duly qualified to do business as a foreign corporation in each
jurisdiction where the character of the property owned or leased by it or the
nature of its activities (after giving effect to the Contemplated Transactions)
make such qualification necessary to carry on its business as now conducted,
except for those jurisdictions where failure to be so qualified has not been,
and may not reasonably be expected to be material to the Buyer Companies taken
as a whole.
C.02 Corporate Authorization. The execution, delivery and performance
by each Buyer Company of the Transaction Documents and the consummation by each
Buyer Company of the Contemplated Transactions are within the corporate powers
of each Buyer Company and have been (or, prior to the Closing, will have been)
duly authorized by all necessary corporate action on the part of each Buyer
Company. Each of the Transaction Documents constitutes a legal, valid and
binding agreement of each Buyer Company, enforceable against each Buyer Company
in accordance with its terms (i) except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally, including the effect of statutory and other laws regarding fraudulent
conveyances and preferential transfers and (ii) subject to the limitations
imposed by general equitable principles (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
C.03 Governmental Authorization. Except as set forth on Schedule B.05,
the execution, delivery and performance by each Buyer Company of the Transaction
Documents requires no action by or in respect of, consents or approvals of, or
filings with, any governmental body, agency, official or authority other than
compliance with any applicable requirements of the HSR Act.
C.04 Non-Contravention. The execution, delivery and performance by each
Buyer Company of the Transaction Documents do not and will not (i) contravene or
conflict with the charter or bylaws of the Buyer Company, (ii) assuming
compliance with the matters referred to in Section C.03, contravene or conflict
with or constitute a violation of any provision of any law, regulation,
judgment, injunction, order or decree binding upon or applicable to the Buyer
Company, or (iii) constitute a default under or give rise to any right of
termination, cancellation or acceleration of any right or obligation of the
Buyer Company or to a loss of any benefit to which the Buyer Company is entitled
under any provision of any agreement, contract or other instrument binding upon
the Buyer Company or any license, franchise, permit or other similar
authorization held by the Buyer Company, except, in the case of clauses (ii) and
(iii), for any such contravention, conflict, violation, default, termination,
cancellation, acceleration or loss that could not reasonably be expected to be
material to the Buyer Companies taken as a whole.
C.05 Finders' Fees. There is no investment banker, broker, finder or
other intermediary that has been retained by or is authorized to act on behalf
of Buyer who might be entitled to any fee or commission from Seller or Buyer (or
any of their Affiliates) upon consummation of the Contemplated Transactions.
C.06 Litigation. There is no action, suit, investigation or proceeding
pending against, or to the knowledge of Buyer, threatened against or affecting,
any Buyer Company before any court or arbitrator or any Governmental Authority
that in any manner challenges or seeks to prevent, enjoin, alter or materially
delay the Contemplated Transactions.
C.07 Inspections/Investment Intent.
(a) Buyer is an informed and sophisticated participant in the
Contemplated Transactions, and has engaged expert advisors, experienced in
evaluation and purchase of enterprises such as the Glass Machinery Business.
Buyer has undertaken an investigation, has been provided with, has evaluated and
has relied upon certain documents and information to assist Buyer in making an
informed and intelligent decision with respect to the execution of the
Transaction Documents. Buyer acknowledges that Seller has made no representation
or warranty as to the prospects, financial or otherwise, of the Glass Machinery
Business. Buyer agrees that it shall accept the Transferred Assets and the
Assumed Liabilities conveyed by the Sellers of Transferred Assets and through
its acquisition of the Shares the assets (other than Excluded Assets) and the
liabilities (other than Excluded Liabilities) of the Glass Machinery Share
Companies as they exist on the Closing Date (subject to the representations and
warranties made by Black & ▇▇▇▇▇▇ in the Transaction Documents) based on Buyer's
inspection, examination, determination with respect thereto as to all matters,
and without reliance upon any express or implied representations or warranties
of any nature, whether in writing, orally or otherwise, made by or on behalf of
or imputed to Seller, except as expressly set forth in the Transaction
Documents.
(b) Buyer is aware that none of the Shares have been
registered under the Securities Act of 1933 or any other applicable securities
laws. Buyer is an accredited investor within the meaning of Rule 501 of
Securities and Exchange Commission Rule D. The Buyer Companies are acquiring the
Shares for their own account, for investment purposes only and not with a view
to the distribution thereof. Buyer agrees that the Shares will not be sold,
transferred, offered for sale, pledged, hypothecated or otherwise disposed of
without registration under the Securities Act of 1933 or the securities laws of
other applicable jurisdictions, except pursuant to valid exemptions from
registration under such laws.
C.08 Financing. Buyer has available to it cash, marketable securities
or other investments, or presently available sources of credit, to enable it to
consummate the Contemplated Transactions.
EXHIBIT D
EMPLOYEES AND EMPLOYEE BENEFIT MATTERS
I. Employees and Employment.
D.01 General. On the Closing Date, the employment of all Active
Employees of the Glass Machinery Business shall (a) be transferred to a Buyer
Company in the case of Active Employees of a Seller of Transferred Assets, (b)
remain employed by a Glass Machinery Share Company in the case of Active
Employees employed by a Glass Machinery Share Company, or (c) be transferred to
a Buyer Company in the case of employees listed on Attachment XVI. In any case,
the employment of such persons shall be considered continuous employment under
Applicable Law. "Active Employee" shall mean any individual who is actively
employed by any Seller of Transferred Assets, who is actively employed by any
Glass Machinery Share Company, who is listed on Attachment XVI, and any employee
of the Glass Machinery Business who is on authorized leave of absence, military
service (without restriction) or lay-off with recall rights (without
restriction). Where applicable the term "Active Employee" shall include
independent contractors. The Active Employees who are employed at any time on or
after the Closing Date by a Glass Machinery Share Company, or by any of the
Buyer Companies are herein collectively referred to as "Transferred Employees."
Except as otherwise expressly contemplated in the Transaction Documents, such
employment shall be at the same workplace and on the same terms and conditions
as those under which such employees are currently employed (except to the extent
that any change is necessary to any stock option plan or other equity-based
Employee Plan or Benefit Arrangement to eliminate the use of any equity
securities of the employer), and the employment of each Transferred Employee
shall be continued by the Buyer Companies for at least the maximum applicable
termination notice period to which a Seller of Transferred Assets, a Glass
Machinery Share Company or such other employer of such Transferred Employee may
be subject under Applicable Law as a result of the Contemplated Transactions.
From and after the Closing Date, the Buyer Companies or the Glass Machinery
Share Companies shall assume or continue to be bound by, as the case may be, all
obligations under any agreements, contracts or Applicable Law relating to the
terms and conditions of employment of all Active Employees, except for any
severance obligations (other than those disclosed in Schedule B.20) that result
solely from the transfer of a Transferred Employee's employment to the Buyer
Companies and not from any other change in the terms and conditions of his or
her employment. Nothing in this Agreement shall restrict the Buyer Companies
from terminating the employment of any Transferred Employee at any time and for
any reason, subject to all obligations under any agreements, contracts or
Applicable Law relating to the terms and conditions of employment of Active
Employees.
D.02 Severance Plans and Agreements. As of the Closing Date, it is the
Buyer's intention to (i) establish or cause to be established severance plans,
agreements and arrangements with substantially similar terms and conditions as
those provided under the applicable severance agreements, plans or arrangements
listed on Schedule B.20, (ii) maintain or cause to be maintained such severance
agreements, plans and arrangements for a period of at least one year following
the Closing Date, and (iii) pay or cause to be paid any benefits to any
Transferred Employees that they may be entitled to receive under such severance
agreements, plans or arrangements. In furtherance and not in limitation of the
provisions of this Section D.02, as of the Closing Date, Buyer shall assume and
discharge the obligations under the individual employee severance agreements
listed on Schedule B.20 provided that such employees are Active Employees.
D.03 Labor Agreements. The Buyer Companies agree to recognize (and to
cause the Glass Machinery Share Companies to continue to recognize) the
applicable labor unions, collective bargaining representatives, trade unions or
work councils representing any employees of the Glass Machinery Business as the
exclusive collective bargaining representatives of the Active Employees with
respect to wages, hours, fringe benefits and other terms and conditions of
employment to the extent so recognized by the current employers of such Active
Employees for all such Active Employees who are within the appropriate
bargaining unit as determined by Applicable Law. The Buyer Companies shall
become successor employers under the applicable labor or collective bargaining
agreements and agree to honor the terms of and to assume all obligations under
existing collective bargaining agreements in respect of such unionized Active
Employees which arise after the Closing Date and all legal obligations arising
from such recognition or assumption.
D.04 Recalled or Rehired Employees. Buyer, for itself, each Buyer
Company and each Glass Machinery Share Company, confirms that any employees of
the Glass Machinery Business that are laid off or on leave with continuing
recall or return rights under applicable agreements, contracts, policies or
Applicable Law as of the Closing Date will be recalled or rehired or returned to
employment in compliance with any applicable agreements, contracts or Applicable
Law and will be accorded the benefits otherwise provided to Transferred
Employees by the Buyer Companies and the Glass Machinery Share Companies.
D.05 Negotiations with Employees or Employee Representatives. If and to
the extent that any provisions of this Agreement are or may be subject to
negotiation with employees, or applicable labor unions, trade unions or work
councils, by policy, contract, collective bargaining agreement or Applicable
Law, Black & ▇▇▇▇▇▇ and its Affiliates and Buyer Companies shall cooperate in
good faith in such negotiations.
D.06 Termination and Plant Closing Notices; WARN. Black & ▇▇▇▇▇▇ and
its Affiliates shall provide any notices to the employees of the Glass Machinery
Business that may be required under any Applicable Law, including but not
limited to WARN or any similar state or local law, with respect to events that
occur up to and including the day prior to the Closing Date. Buyer and its
Affiliates shall provide any such notices to Active Employees with respect to
events that occur as a result of the Closing, and to Transferred Employees with
respect to events that occur on and after the Closing Date. Buyer shall not take
any action on or after the Closing that would cause any termination of employees
by Black & ▇▇▇▇▇▇ and its Affiliates or by a Glass Machinery Share Company that
occur prior to the Closing Date to constitute a "plant closing" or "mass layoff"
under WARN or any similar state or local law, or create any liability to Black &
▇▇▇▇▇▇ or its Affiliates for employment termination under Applicable Law.
D.07 Immigration Matters. The Buyer Companies acknowledge that the
Contemplated Transactions may trigger certain obligations under the immigration
laws of the countries where the Glass Machinery Business operates. Buyer shall
comply (and shall cause the Buyer Company and each Glass Machinery Share Company
to comply) with all requirements of such immigration laws and agrees to make (or
cause to be made) any necessary filings with the appropriate Governmental
Authority with regard to the Transferred Employees.
II. United States Employee Benefit Matters.
D.08 Salaried Employee Pension Plans.
(a) As soon as practicable after the Closing Date, with effect
as of the Closing Date, Buyer shall establish a defined benefit plan ("Buyer's
U.S. Salaried Pension Plan"). As soon as practicable following the earlier of
delivery to Black & ▇▇▇▇▇▇ by Buyer of a favorable determination letter from the
Internal Revenue Service regarding the qualified status of the Buyer's U.S.
Salaried Pension Plan, Black & ▇▇▇▇▇▇ shall cause the transfer from The Black &
▇▇▇▇▇▇ Pension Plan ("Seller's U.S. Salaried Pension Plan") to the Buyer's U.S.
Salaried Pension Plan of assets (in accordance with paragraphs (c) and (d)
below) and all liabilities which are attributable to the US Transferred
Employees who are participants in the Seller's U.S. Salaried Pension Plan as of
the Closing Date. Buyer shall take (or cause to be taken) all action required or
appropriate to vest fully all such US Transferred Employees in their entire
accrued benefits transferred to the Buyer's U.S. Salaried Pension Plan and, to
the extent required under Section 411(d)(6) of the Code, to protect and preserve
all benefits, rights and features relating to those accrued benefits transferred
from Seller's U.S. Salaried Pension Plan. Benefit accruals in respect of US
Transferred Employees under Seller's U.S. Salaried Pension Plan shall cease as
of the Closing Date. Black & ▇▇▇▇▇▇ and Buyer shall make or cause to be made any
and all filings and submissions to the appropriate Governmental Authorities, and
shall make any necessary plan amendments arising in connection with the transfer
of assets and liabilities from Seller's U.S. Salaried Pension Plan to the
Buyer's U.S. Salaried Pension Plan. Prior to such transfer of assets and
liabilities, Black & ▇▇▇▇▇▇ shall provide to Buyer a favorable determination
letter from the Internal Revenue Service regarding the qualified status of the
Seller's U.S. Salaried Plan, as then in effect.
(b) It is the Buyer's intention that the Transferred Employees
shall be eligible to participate under the Buyer's U.S. Salaried Pension Plan
for a period of one year following the Closing Date on the same terms and
conditions as provided to the US Transferred Employees under Seller's U.S.
Salaried Pension Plan immediately prior to the Closing Date. Service and
compensation with Black & ▇▇▇▇▇▇ or any of its Affiliates prior to the Closing
Date which was recognized under Seller's U.S. Salaried Pension Plan shall be
recognized for the same purposes under the Buyer's U.S. Salaried Pension Plan.
(c) The amount of assets to be transferred from the Seller's
U.S. Salaried Pension Plan shall be equal to the Projected Benefit Obligation
("PBO") determined as of the Closing Date in accordance with the Financial
Accounting Standards Board Statement 87 ("FAS 87") and which is attributable to
the US Transferred Employees who are participants in Seller's U.S. Salaried
Pension Plan as of the Closing Date or such larger amount determined under
paragraph (d) below (the "Transfer Amount"). Determination of the PBO shall be
in accordance with the actuarial assumptions used by the Seller's actuary in
preparing the most recent actuarial report for Seller's U.S. Salaried Pension
Plan. The above-described calculation of the amount to be transferred from the
Seller's U.S. Salaried Pension Plan to the Buyer's U.S. Salaried Pension Plan
shall be made by Seller's actuary and reviewed by Buyer's actuary.
(d) All assets transferred under this Section D.08 shall be
made in cash. The transfer contemplated herein shall comply with all
requirements of Sections 414(l) and 401(a)(12) of the Code and in no event shall
the Transfer Amount be less than the amount determined pursuant to Section
414(l) of the Code and Treasury Regulation 1.414(l)-1(n) (using assumptions that
are reasonable, as determined by Seller's actuary in accordance with Treasury
Regulation 1.414(l)-1(b)(5)(ii)) or required by Applicable Law or by any
Governmental Authority. Pending completion of the transfers contemplated by this
Section D.08, any benefits that are payable to US Transferred Employees under
the Seller's U.S. Salaried Pension Plan shall be paid or continue to be paid out
of such plan. The Transfer Amount will be adjusted on a pro-rata basis to
reflect the actual asset performance of the Seller's U.S. Salaried Pension Plan
from the Closing Date to the first day of the month prior to the date of
transfer and credited with interest on a daily basis from that date until the
date of transfer at an interest rate equivalent to the rate on the 90-day United
States Treasury Bills announced for the auction immediately preceding the first
day of the month in which the transfer occurs, and adjusted to reflect benefit
payments and expenses paid after the Closing Date by the Seller's U.S. Salaried
Pension Plan which are related to the obligations being transferred to the
Buyer's U.S. Salaried Pension Plan. Pending the completion of such transfers,
Black & ▇▇▇▇▇▇ will cooperate with Buyer with respect to plan administration,
disbursement of benefits and other pertinent information.
(e) The Buyer's U.S. Salaried Pension Plan and Buyer shall be
liable for all benefits with respect to US Transferred Employees accrued under
the Seller's U.S. Salaried Pension Plan prior to the Closing Date upon such
transfer of assets in accordance with this Section D.08. The Buyer agrees that
neither Black & ▇▇▇▇▇▇, nor any of its Affiliates nor Seller's U.S. Salaried
Pension Plan shall have any further responsibility with respect to the assets
and liabilities so transferred.
D.09 Hourly Paid Employee Pension Plans.
(a) As soon as practicable after the Closing Date, with effect
as of the Closing Date, Buyer shall establish a defined benefit plan ("Successor
U.S. Hourly Pension Plan"). As soon as practicable following the earlier of
delivery to Black & ▇▇▇▇▇▇ by Buyer of a favorable determination letter from the
Internal Revenue Service regarding the qualified status of the Successor U.S.
Hourly Pension Plan, Black & ▇▇▇▇▇▇ shall cause the transfer from the Hourly
Employees Retirement Plan of Hartford Division, Emhart Industries, Inc.
("Seller's U.S. Hourly Pension Plan") to the Successor U.S. Hourly Pension Plan
of assets (in accordance with paragraph (c) and (d) below) and all liabilities
which are attributable to the US Transferred Employees who are participants in
the Seller's U.S. Hourly Pension Plan as of the Closing Date. Buyer shall take
(or cause to be taken) all action required or appropriate, to the extent
required under Section 411(d)(6) of the Code, to protect and preserve under the
Successor U.S. Hourly Pension Plan all benefits, rights and features relating to
those accrued benefits transferred from Seller's U.S. Hourly Pension Plan.
Benefit accruals in respect of US Transferred Employees under the Successor U.S.
Hourly Pension Plan shall cease as of the Closing Date. Black & ▇▇▇▇▇▇ and Buyer
shall make or cause to be made any and all filings and submissions to the
appropriate Governmental Authorities, and shall make any necessary plan
amendments arising in connection with the transfer of assets and liabilities
from Seller's U.S. Hourly Pension Plan to the Successor U.S. Hourly Pension
Plan. Prior to such transfer of assets and liabilities, Black & ▇▇▇▇▇▇ shall
provide to Buyer a favorable determination letter from the Internal Revenue
Service regarding the qualified status of the Seller's U.S. Hourly Plan, as then
in effect.
(b) The US Transferred Employees shall be eligible to
participate under the Successor U.S. Hourly Pension Plan in accordance with any
applicable collective bargaining agreement and Applicable Law. Service and
compensation with Black & ▇▇▇▇▇▇ or any of its Affiliates prior to the Closing
Date which was recognized under Seller's U.S. Hourly Pension Plan shall be
recognized for the same purposes under the Successor U.S. Hourly Pension Plan.
(c) The amount of assets to be transferred from the Seller's
U.S. Hourly Pension Plan shall be equal to the Projected Benefit Obligation
("PBO") determined as of the Closing Date in accordance with the Financial
Accounting Standards Board Statement 87 ("FAS 87") but assuming that the unit
benefit rate under the plan shall increase at the rate of 4% per year and which
is attributable to the US Transferred Employees who are participants in Seller's
U.S. Hourly Pension Plan as of the Closing Date or such larger amount determined
under paragraph (d) below (the "Transfer Amount"). Determination of the PBO
shall be in accordance with the actuarial assumptions used by Seller's actuary
in preparing the most recent actuarial report for Seller's U.S. Hourly Pension.
The above-described calculation of the amount to be transferred from the
Seller's U.S. Hourly Pension Plan to the Successor U.S. Hourly Pension Plan
shall be made by Seller's actuary and reviewed by Buyer's actuary.
(d) All assets transferred under this Section D.09 shall be
made in cash. The transfer contemplated herein shall comply with all
requirements of Sections 414(l) and 401(a)(12) of the Code and in no event shall
the Transfer Amount be less than the amount determined pursuant to Section
414(l) of the Code and Treasury Regulation 1.414(l)-1(n) (using assumptions that
are reasonable, as determined by Seller's actuary in accordance with Treasury
Regulation 1.414(l)-1(b)(5)(ii)) or required by Applicable Law or by any
Governmental Authority. Pending completion of the transfers contemplated by this
Section D.09, any benefits that are payable to US Transferred Employees under
the Seller's U.S. Hourly Pension Plan shall be paid or continue to be paid out
of such plan. The Transfer Amount will be adjusted on a pro-rata basis to
reflect the actual asset performance of the Seller's U.S. Hourly Pension Plan
from the Closing Date to the first day of the month prior to the date of
transfer and credited with interest on a daily basis from that date until the
date of transfer at an interest rate equivalent to the rate on the 90-day United
States Treasury Bills announced for the auction immediately preceding the first
day of the month in which the transfer occurs, and adjusted to reflect benefit
payments and expenses paid after the Closing Date by the Seller's U.S. Hourly
Pension Plan which are related to the obligations being transferred to the
Successor U.S. Hourly Pension Plan. Pending the completion of such transfers,
Black & ▇▇▇▇▇▇ will cooperate with Buyer with respect to plan administration,
disbursement of benefits and other pertinent information.
(e) The Successor U.S. Hourly Pension Plan shall be liable for
all benefits with respect to US Transferred Employees accrued under the Seller's
U.S. Hourly Pension Plan prior to the Closing Date upon the transfer of assets
in accordance with this Section D.09. The Buyer agrees that neither Black &
▇▇▇▇▇▇, any of its Affiliates nor Seller's U.S. Salaried Pension Plan shall have
any further responsibility with respect to the assets and liabilities so
transferred.
D.10 Savings Plans.
(a) Black & ▇▇▇▇▇▇ shall cause the trustee of The Black &
▇▇▇▇▇▇ Retirement Savings Plan ("Seller's Savings Plan") to transfer as of the
transfer date specified below, the full account balances of the US Transferred
Employees under Seller's Savings Plan, to the Successor Savings Plan (as
hereinafter defined). To the extent permissible under Seller's Savings Plan,
such assets shall be transferred to the Successor Savings Plan in cash, except
that participant loans shall be transferred in kind. Black & ▇▇▇▇▇▇ and Buyer
shall make or cause to be made any and all filings and submissions to the
appropriate Governmental Authorities, and shall make any necessary plan
amendments arising in connection with the transfer of assets and liabilities
from Seller's Savings Plan to the Successor Savings Plan.
(b) As soon as practicable after the Closing Date, Buyer shall
establish or designate (or cause to be established or designated) an individual
account plan for the benefit of US Transferred Employees (the "Successor Savings
Plan"), shall take (or cause to be taken) all necessary action, if any, to
qualify the Successor Savings Plan under the applicable provisions of the Code
and shall make any and all filings and submissions to the appropriate
Governmental Authorities required to be made or its Affiliates in connection
with the transfer of assets contemplated hereby. The Successor Savings Plan
shall provide that those US Transferred Employees and their beneficiaries
covered by Seller's Savings Plan shall receive credit for all service with Black
& ▇▇▇▇▇▇ or any of its Affiliates prior to the Closing Date for all purposes, to
the same extent such service is recognized under Seller's Savings Plan
immediately prior to the Closing Date and, to the extent of the assets
transferred, benefit accruals. Buyer shall take (or cause to be taken) all
action required or appropriate to vest fully all such US Transferred Employees
in their entire account balances transferred to the Successor Savings Plan and,
to the extent required under Section 411(d)(6) of the Code, to protect and
preserve all benefits, rights and features relating to those account balances
transferred from Seller's Savings Plan. As soon as practicable following the
earlier of the delivery to Black & ▇▇▇▇▇▇ of a favorable determination letter
from the Internal Revenue Service regarding the qualified status of the
Successor Savings Plan, subject to any withdrawals or distributions made by, to
or on behalf of a US Transferred Employee under the terms of the Seller's
Savings Plan prior to the transfer date, to transfer the full account balances
of US Transferred Employees under Seller's Savings Plan as of the transfer date
to the appropriate trustee designated by the Buyer under the trust agreement
forming a part of the Successor Savings Plan; provided, that assets consisting
of notes or other instruments evidencing loans made to participating US
Transferred Employees shall be transferred in such form to the Successor Savings
Plan. Prior to such transfer of assets and liabilities, Black & ▇▇▇▇▇▇ shall
provide to Buyer a favorable determination letter from the Internal Revenue
Service regarding the qualified status of the Seller's Savings Plan, as then in
effect.
(c) Buyer, effective as of the date of the transfer of assets
contemplated by this Section D.10, assumes all of the liabilities and
obligations of Black & ▇▇▇▇▇▇ or any of its Affiliates in respect of the account
balances accumulated by US Transferred Employees under Seller's Savings Plan to
the extent of the assets transferred, and the Successor Savings Plan assumes all
liabilities and obligations of Seller's Savings Plan with respect to all account
balances under Seller's Savings Plan of such US Transferred Employees to the
extent of the assets transferred. Neither Buyer nor any of its Affiliates shall
assume any other obligations or liabilities arising under or attributable to
Seller's Savings Plan and neither Black & ▇▇▇▇▇▇ nor any of its Affiliates shall
assume any liabilities or obligations under or attributable to the Successor
Savings Plan. Prior to the transfer of assets contemplated by this Section D.10,
Buyer and its Affiliates, if consented to by the applicable US Transferred
Employee, shall withhold from such US Transferred Employee's pay, loan
repayments relating to any outstanding loan to such US Transferred Employee
under Seller's Savings Plan and shall promptly forward those withholdings to
Seller's Savings Plan.
D.11 Health and Welfare Plans; Benefit Arrangements.
(a) For a period of one year following the Closing Date, Buyer
intends to ensure that the US Transferred Employees are provided benefits that
are substantially equivalent on an aggregate basis (and "substantially
identical" with respect to health benefit coverage for purposes of satisfying
Section 4980B of the Code) to those provided under the Employee Plans and
Benefit Arrangements as in effect for those US Transferred Employees immediately
prior to the Closing Date (except to the extent that any change is necessary to
any stock option plan or other equity-based Benefit Arrangement to eliminate the
use of any equity securities of the employer), it being understood and agreed
that such benefits provided by Buyer and its Affiliates shall include at a
minimum health, medical, dental, life, disability and severance benefits. Each
U.S. Transferred Employee shall receive credit for service and compensation with
Black & ▇▇▇▇▇▇ and its Affiliates prior to the Closing Date for all purposes to
the same extent that service and compensation are recognized under Employee
Plans and Benefit Arrangement immediately prior to the Closing.
(b) With respect to any US Transferred Employee (including any
beneficiary or dependent thereof), except as expressly set forth herein, Black &
▇▇▇▇▇▇ and its Affiliates shall retain (i) all liabilities and obligations
arising under any group life, accident, medical, dental or disability plan or
similar arrangement (whether or not insured) to the extent that such liability
or obligation relates to claims incurred (whether or not reported) on or prior
to the Closing Date, and (ii) all liabilities and obligations arising under any
worker's compensation laws to the extent such liability or obligation relates to
the period prior to the Closing Date.
(c) Any group health plan, disability plan or other plans
established or designated by the Buyer and its Affiliates for the benefit of US
Transferred Employees shall not contain any exclusion or limitation with respect
to any preexisting condition; provided, however, that buyer need not waive any
pre-existing condition which was excluded from coverage under the Seller's
plans, to the extent the condition would have been excluded under the Seller's
plans after the Closing Date.
(d) Except as otherwise expressly provided in this Exhibit D,
effective as of the Closing, Buyer shall assume (or cause one of its Affiliates
to assume) the liabilities and obligations of Black & ▇▇▇▇▇▇ and its Affiliates
in respect of all US Transferred Employees (and their beneficiaries and
dependents) under the Bonus, Stock and Incentive Plans disclosed in Section B(h)
of Schedule B.20 and under the Other Employment Benefit Arrangements/ Fringe
Benefits disclosed in Section H(h) of Schedule B.20 sponsored or maintained by
Black & ▇▇▇▇▇▇ and its Affiliates at any time prior to the Closing Date (except
to the extent that any change is necessary to any stock option plan or other
equity-based Benefit Arrangement to eliminate the use of any equity securities
of the employer).
D.12 Post-Retirement Medical and Life Insurance.
(a) Black & ▇▇▇▇▇▇ and its Affiliates shall retain
responsibility for providing health, medical, dental, hospitalization, life
insurance or similar benefits (including, without limitation, reimbursement for
Medicare premiums) to any employee or former employee of the Glass Machinery
Business and their dependents who retires or has retired before the Closing
Date. Buyer and its Affiliates shall be responsible for providing any
post-retirement medical, life or similar benefits to US Transferred Employees
and their dependents.
(b) Notwithstanding the provisions of this Exhibit D,
including but not limited to the provisions of this Section D.12, Black & ▇▇▇▇▇▇
and its Affiliates may amend, modify or terminate any plans or arrangements
providing post-retirement health, medical, dental, hospitalization, life
insurance or similar benefits (including, without limitation, reimbursement for
Medicare premiums) to any employee or former employee of the Glass Machinery
Business and their dependents, subject in each case to the provisions of
Applicable Law.
(c) Except as otherwise contemplated by the provisions of this
Exhibit D, including but not limited to the provisions of Section D.11, Buyer
shall not be obligated by this Agreement to provide post-retirement, health,
medical, dental, hospitalization, life insurance or similar benefits (including,
without limitation, reimbursement for Medicare premiums), or any particular
level of such benefits, to US Transferred Employees.
III. Other Country Employee Benefit Matters.
D.13 General. For a period of one year following the Closing Date,
Buyer intends to ensure that the Non-US Transferred Employees are provided
benefits that are substantially equivalent on an aggregate basis to those
provided under the Non-U.S. Benefit Arrangements as in effect for those Non-US
Transferred Employees immediately prior to the Closing Date (except to the
extent that any change is necessary to any stock option plan or other
equity-based Employee Plan or Benefit Arrangement to eliminate the use of any
equity securities of the employer), it being understood that each Non-US
Transferred Employee shall receive credit for all service and compensation with
Black & ▇▇▇▇▇▇ and its Affiliates prior to the Closing Date for all purposes to
the same extent that service and compensation are recognized under the Benefit
Arrangements immediately prior to the Closing.
D.14 Severance/Termination Indemnities. In furtherance and not in
limitation of the provisions of Section D.13, for a period of at least one year,
Buyer intends to provide (or cause to be provided) severance programs and
termination indemnities with the same terms and conditions as those provided by
Black & ▇▇▇▇▇▇ and its Affiliates, or that are otherwise available, to the
Non-US Transferred Employees immediately prior to the Closing, including credit
for service and compensation with Black & ▇▇▇▇▇▇ and its Affiliates, and agrees
to pay or cause to be paid any benefit to Non-US Transferred Employees to which
they may be entitled under any severance programs and/or termination indemnities
applicable to either Buyer and its Affiliates or Black & ▇▇▇▇▇▇ and its
Affiliates with respect to events that occur on or after the Closing Date or as
a result of the Contemplated Transactions.
D.15 United Kingdom Pension Plan. In furtherance and not in limitation
of the provisions of Section D.13, Black & ▇▇▇▇▇▇ may elect, on or before the
Closing Date, in its discretion, to have the provisions of either Section
D.15(a) or D.15(b) be effective as of the Closing Date:
(a) If so elected by Black & ▇▇▇▇▇▇, the following provisions
shall be effective:
(i) Black & ▇▇▇▇▇▇ and its Affiliates shall retain
all liabilities and obligations in respect of benefits accrued by employees of
the Glass Machinery Business (including Transferred Employees) as of the Closing
Date under the Black & ▇▇▇▇▇▇ 1995 Pension Scheme ("Seller's U.K. Pension
Plan"). Accrued benefits of Non-US Transferred Employees under Seller's U.K.
Pension Plan shall be fully vested as of the Closing Date. Benefit accruals in
respect of Non-US Transferred Employees under Seller's U.K. Pension Plan shall
cease as of the Closing Date. No assets of Seller's U.K. Pension Plan shall be
transferred to Buyer or any of its Affiliates or to any employee benefit plan of
Buyer or any of its Affiliates and Buyer shall procure that no employee benefit
or pension plan of Buyer or any of its Affiliates, whether designated in
accordance with (ii) or otherwise, shall accept a transfer from the Seller's
U.K. Pension Plan.
(ii) Prior to or as soon as practicable after the
Closing Date, Buyer shall designate or establish a pension plan for the benefit
of Non-US Transferred Employees who were participants in Seller's U.K. Pension
Plan ("Buyer's U.K. Pension Plan"). Buyer's U.K. Pension Plan shall cover all
such Non-US Transferred Employees each of whom shall be eligible to participate
therein for at least one year following the Closing Date. Buyer's U.K. Pension
Plan shall be a retirement benefit scheme which is, or is capable of being, an
exempt approved scheme (as defined under the Income and Corporation Taxes Act
1988). Buyer's U.K. Pension Plan shall provide benefits which are at least
broadly comparable in value to those provided to such Non-US Transferred
Employees under the Seller's U.K. Pension Plan immediately prior to the Closing
Date, but, for the avoidance of doubt, such benefits may be provided on a
defined benefit or defined contribution basis.
(b) If so elected by Black & ▇▇▇▇▇▇, the following provisions
shall be effective, in lieu of the provisions of Section D.15(a):
(i) Accrued benefits of Non-US Transferred Employees
under the Black & ▇▇▇▇▇▇ 1995 Pension Scheme ("Seller's U.K. Pension Plan")
shall be fully vested as of the Closing Date. Benefit accruals in respect of
Non-US Transferred Employees under Seller's U.K. Pension Plan shall cease as of
the Closing Date. Prior to or as soon as practicable after the Closing Date,
with effect as of the Closing Date, Buyer shall establish a pension plan
("Buyer's U.K. Pension Plan") for the benefit of Non-US Transferred Employees
who were participants in Seller's U.K. Pension Plan. Buyer's U.K. Pension Plan
shall cover all such Non-US Transferred Employees each of whom shall be eligible
to participate therein for at least one year following the Closing Date on the
same terms and conditions as provided to such Non-US Transferred Employees under
Seller's U.K. Pension Plan immediately prior to the Closing Date. Buyer's U.K.
Pension Plan shall be a retirement benefit scheme which is, or is capable of
being, an exempt approved scheme (as defined under the Income and Corporation
Taxes Act 1988). Service and compensation with Black & ▇▇▇▇▇▇ or any of its
Affiliates prior to the Closing Date which was recognized under Seller's U.K.
Pension Plan shall be recognized for the same purposes under the Buyer's U.K.
Pension Plan.
(ii) As soon as practicable following the Approval
Date or the issuance of indemnities satisfactory to Black & ▇▇▇▇▇▇, Black &
▇▇▇▇▇▇ in its sole discretion shall cause the transfer from Seller's U.K.
Pension Plan to the Buyer's U.K. Pension Plan of assets (in accordance with
paragraphs (iii) and (iv) below) and all liabilities which are attributable to
the Non-US Transferred Employees (other than Non-Transfer Employees as described
in Section D.15(b)(iii)) who are participants in the Seller's U.K. Pension Plan
as of the Closing Date. For the purposes of this Section D.15(b), "Approval
Date" shall mean the date on which the Buyer shall deliver to Black & ▇▇▇▇▇▇
copies of the Buyer's U.K. Pension Plan, governmental approval or determination
letter and other documents verifying that all of the following have occurred
with respect to the Buyer's U.K. Pension Plan: (A) that the plan has been
established; (B) that the plan has obtained the approvals by all Governmental
Authorities which are necessary to obtain any regulatory or fiscal regime; (C)
that the approval of the transfer by all Governmental Authorities, trustees or
managers of the plan has been obtained to the extent the approval is required by
law; and (D) that all notices relating to the transfer and required by law to be
given by the plan, the employer sponsoring the plan or any trustee or other
fiduciary of the plan to any Governmental Authority, employee or beneficiary or
collective bargaining representative, have been given.
(iii) The amount of assets to be transferred from the
Seller's U.K. Pension Plan shall be equal to the Projected Benefit Obligation
("PBO") determined as of the Closing Date in accordance with the Financial
Accounting Standards Board Statement 87 ("FAS 87") and which is attributable to
the Non-US Transferred Employees (excluding Non-Transfer Employees) who are
participants in Seller's U.K. Pension Plan as of the Closing Date or such larger
amount as may be required to be transferred by the plan trustees or Applicable
Law (the "Transfer Amount"). Determination of the PBO shall be in accordance
with the actuarial assumptions used by the Seller's actuary for the
determination of the 1998 FAS 87 expense for Seller's U.K. Pension Plan. The
above-described calculation of the amount to be transferred from the Seller's
U.K. Pension Plan to the Buyer's U.K. Pension Plan shall be made by Seller's
actuary and reviewed by Buyer's actuary. For the purposes of this Section
D.15(b), "Non-Transfer Employees" means those Transferred Employees (including
the beneficiaries of a deceased employee) whose accrued benefits in the Seller's
U.K. Pension Plan are not transferred pursuant to this Agreement to the Buyer's
U.K. Pension Plan by reason of the election or determination by any such
Transferred Employee, the requirements of any law, or the terms of the Seller's
U.K. Pension Plan.
(iv) All assets transferred under this Section
D.15(b) shall be made in cash. The transfer contemplated herein shall comply
with all requirements of Applicable Law. Pending completion of the transfers
contemplated by this Section D.15(b), any benefits that are payable to Non-US
Transferred Employees under the Seller's U.K. Pension Plan shall be paid or
continue to be paid out of such plan. The Transfer Amount will be adjusted on a
pro-rata basis to reflect the actual asset performance of the Seller's U.K.
Pension Plan from the Closing Date to the first day of the month prior to the
date of transfer and credited with interest from that date until the date of
transfer at the rate of 5% per year, and adjusted to reflect benefit payments
and expenses paid or incurred after the Closing Date by the Seller's U.K.
Pension Plan which are related to the obligations being transferred to the
Buyer's U.K. Pension Plan. Pending the completion of such transfers, Black &
▇▇▇▇▇▇ will cooperate with Buyer with respect to plan administration,
disbursement of benefits and other pertinent information.
(v) The Buyer's U.K. Pension Plan and Buyer shall be
liable for all benefits with respect to Non-US Transferred Employees (other than
Non-Transfer Employees) accrued under the Seller's U.K. Pension Plan prior to
the Closing Date upon the transfer of assets in accordance with this Section
D.15(b). The Buyer agrees that neither Black & ▇▇▇▇▇▇, nor any of its Affiliates
nor Seller's U.K. Pension Plan shall have any further responsibility with
respect to the assets and liabilities so transferred.
D.16 German Retirement Plans. In furtherance and not in limitation of
the provisions of Section D.13:
(a) As of the Closing Date, Black & ▇▇▇▇▇▇ shall transfer or
cause to be transferred and Buyer shall assume or cause to be assumed the
benefit obligations of all participants, their beneficiaries and dependents
(including, without limitation, terminated vested participants and retirees)
under the Emhart Glass/Emhart Deutschland GmbH/Versorgungsordnung fur unsere
Mitargeiter ("Seller's German Pension Plan"). As soon as administratively
practicable after the Closing Date, Black & ▇▇▇▇▇▇ and Buyer shall make or cause
to be made any and all filings and submissions to the appropriate Governmental
Authorities required to be made by it in connection with the transfer of benefit
obligations contemplated hereby. The participants and their beneficiaries
covered by Seller's German Pension Plan shall receive credit for all service and
compensation with Black & ▇▇▇▇▇▇ or any of its Affiliates prior to the Closing
Date for all purposes, to the same extent such service and compensation are
recognized under Seller's German Pension Plan.
(b) Effective as of the Closing, Buyer and its Affiliates
shall assume all of the liabilities and obligations of Black & ▇▇▇▇▇▇ or any of
its Affiliates in respect of the benefit obligations of all participants and
their beneficiaries under Seller's German Pension Plan. Neither Black & ▇▇▇▇▇▇
nor any of its Affiliates shall assume any liabilities or obligations under or
attributable to the Seller's German Pension Plan on and after the Closing Date.
D.17 Japanese Benefit Arrangements. In furtherance and not in
limitation of the provisions of Section D.13:
(a) As of the Closing Date, Black & ▇▇▇▇▇▇ shall transfer (or
cause to be transferred) and Buyer shall assume (or cause to be assumed) the
benefit obligations of all participants, their beneficiaries and dependents
(including, without limitation, terminated vested participants and retirees)
under any Benefit Arrangements for employees of the Glass Machinery Business
employed by Nippon POP Rivets, K.K. and its predecessors ("Seller's Japanese
Plans"). Black & ▇▇▇▇▇▇ and Buyer shall make (or cause to be made) any and all
filings and submissions to the appropriate Governmental Authorities and obtain
approvals for the transfer to and assumption by Buyer of any insurance contracts
that may be required or appropriate to be made by it in connection with the
transfer of benefit obligations and insurance contracts contemplated hereby. The
participants and their beneficiaries covered by Seller's Japanese Plans shall
receive credit for all service and compensation with Black & ▇▇▇▇▇▇ or any of
its Affiliates prior to the Closing Date for all purposes, to the same extent
such service and compensation are recognized under Seller's Japanese Plans.
(b) Effective as of the Closing Date, Buyer and its Affiliates
shall assume all of the liabilities and obligations of Black & ▇▇▇▇▇▇ or any of
its Affiliates in respect of the benefit obligations of Non-US Transferred
Employees and their beneficiaries under Seller's Japanese Plans and any
insurance contract related thereto. Neither Black & ▇▇▇▇▇▇ nor any of its
Affiliates shall assume or retain any liabilities or obligations under or
attributable to the Seller's Japanese Plan on and after the Closing Date.
D.18 Swiss Pension Plan. In furtherance and not in limitation of the
provisions of Section D.13:
(a) As of the Closing Date, Black & ▇▇▇▇▇▇ shall transfer (or
cause to be transferred) and the Buyer shall assume (or cause to be assumed) the
sponsorship of the Emhart Glass AG pension plan ("Seller's Swiss Pension Plan").
As soon as administratively practicable after the Closing Date, Black & ▇▇▇▇▇▇
and Buyer shall make (or cause to be made) any and all filings and submissions
to the appropriate Governmental Authorities and make any necessary plan or trust
amendments arising in connection with the transfer of the Seller's Swiss Pension
Plan from Black & ▇▇▇▇▇▇ and its Affiliates to Buyer and its Affiliates. The
participants and their beneficiaries covered by Seller's Swiss Pension Plan
shall receive credit for all service and compensation with Black & ▇▇▇▇▇▇ and
its Affiliates prior to the Closing Date for all purposes, to the same extent
such service and compensation are recognized under the Seller's Swiss Pension
Plan.
(b) Effective as of the Closing, Buyer and its Affiliates
shall assume or cause to be assumed all of the liabilities and obligations of
Black & ▇▇▇▇▇▇ and any of its Affiliates in respect of the benefit obligations
of all participants and their beneficiaries under Seller's Swiss Pension Plan
and in respect of the assets thereof. Neither Black & ▇▇▇▇▇▇ nor any of its
Affiliates shall retain any liabilities or obligations under or attributable to
the Seller's Swiss Pension Plan or the assets thereof regardless of whether such
liabilities or obligations accrued before or after the Closing.
D.19 Swedish Benefit Arrangements. In furtherance and not in limitation
of the provisions of Section D.13:
(a) As of the Closing Date, Black & ▇▇▇▇▇▇ shall transfer (or
cause to be transferred) and Buyer shall assume (or cause to be assumed) the
benefit obligations of all participants (including without limitation,
terminated vested employees and retirees), their beneficiaries and dependents
under any Benefit Arrangement maintained for employees of Emhart Sweden AB or
any of its Subsidiaries. Notwithstanding anything to the contrary in this
Agreement, it is understood and agreed that, prior to the Closing Date, Black &
▇▇▇▇▇▇ may insure part or all of the benefit liabilities attributable to the
employees of Emhart Sweden AB or any of its Subsidiaries as Black & ▇▇▇▇▇▇ shall
determine in its discretion. Buyer shall make (or cause to be made) any and all
filings and submissions to any appropriate organization, institution or
Governmental Authority, including but not limited to Forsakringsbolaget Pensions
Garanti, Omsesidigt (Pension Guaranty, Mutual Insurance Company). Buyer
acknowledges that any surety bond issued by Black & ▇▇▇▇▇▇ in connection with
any Benefit Arrangements of Emhart Sweden AB or any of its Subsidiaries is a
Financial Support Arrangement subject to the provisions of Section 6.03(d),
6.03(e) and 6.03(f) of the Transaction Agreement.
(b) Effective as of the Closing, Buyer and its Affiliates
shall assume all liabilities and obligations of Black & ▇▇▇▇▇▇ or any of its
Affiliates in respect of any Benefit Arrangements maintained by Emhart Sweden
AB. Neither Black & ▇▇▇▇▇▇ nor any of its Affiliates shall assume any
liabilities or obligations under or attributable to any Benefit Arrangement
maintained by Emhart Sweden AB on and after the Closing Date.
D.20. Singapore Benefit Arrangements. In furtherance and not in
limitation of the provisions of Section D.13:
(a) As of the Closing Date, Black & ▇▇▇▇▇▇ shall transfer (or
cause to be transferred) and Buyer shall assume (or cause to be assumed) the
benefit obligations of all participants, their beneficiaries and dependents
(including without limitation, terminated vested employees and retirees) under
all Benefit Arrangements by Black & ▇▇▇▇▇▇ Asia Pacific that benefit employees
of the Glass Machinery Business. Black & ▇▇▇▇▇▇ and Buyer shall make (or cause
to be made) any and all filings and submissions to the appropriate Governmental
Authorities required to be made in connection with the transfer of benefit
obligations contemplated hereby. The participants and their beneficiaries
covered by Benefit Arrangements of Black & ▇▇▇▇▇▇ Asia Pacific shall receive
credit for all service and compensation with Black & ▇▇▇▇▇▇ or any of its
Affiliates prior to the Closing Date for all purposes to the same extent such
service and compensation are recognized under any Benefit Arrangement maintained
by Black & ▇▇▇▇▇▇ Asia Pacific.
(b) Effective as of the Closing Date, Buyer and its Affiliates
shall assume all of the liabilities and obligations of Black & ▇▇▇▇▇▇ or any of
its Affiliates in respect of the benefit obligations under any Benefit
Arrangement maintained by Black & ▇▇▇▇▇▇ Asia Pacific. Neither Black & ▇▇▇▇▇▇
nor any of its Affiliates shall assume any liabilities or obligations under or
attributable to any Benefit Arrangement maintained by Black & ▇▇▇▇▇▇ Asia
Pacific on and after the Closing Date.
D.21. Italian Benefit Arrangements In furtherance and not in limitation
of the provisions of Section D.13:
(a) As of the Closing Date, Black & ▇▇▇▇▇▇ shall transfer (or
cause to be transferred) and Buyer shall assume (or cause to be assumed) the
benefit obligations of all participants, their beneficiaries and dependents
(including terminated employees, retirees, their beneficiaries and dependents)
under Benefit Arrangements maintained by Emhart S.r.l. Black & ▇▇▇▇▇▇ and Buyer
shall make (or cause to be made) any and all filings and submissions to the
appropriate Governmental Authorities required to be made in connection with the
transfer of benefit obligations contemplated hereby. The participants, their
beneficiaries and dependents covered by any Benefit Arrangement maintained by
Emhart S.r.l. shall receive credit for all service and compensation with Black &
▇▇▇▇▇▇ or any of its Affiliates prior to the Closing Date for all purposes to
the same extent such service and compensation are recognized under the Benefit
Arrangements maintained by Emhart S.r.l.
(b) Effective as of the Closing, Buyer and its Affiliates
shall assume all of the liabilities and obligations of Black & ▇▇▇▇▇▇ or any of
its Affiliates in respect of the benefit obligations of any participants, their
beneficiaries and dependents under the Benefit Arrangements maintained by Emhart
S.r.l. Neither Black & ▇▇▇▇▇▇ nor any of its Affiliates shall retain any
liabilities or obligations under or attributable to the Benefit Arrangements
maintained by Emhart S.r.l on and after the Closing Date.
VII. General.
D.22 No Third Party Beneficiaries. No provision of this Exhibit D or
any other provision in the Transaction Documents shall create any third party
beneficiary or other rights in any employee or former employee (including any
beneficiary or dependent thereof) of Black & ▇▇▇▇▇▇ or of any of its Affiliates
in respect of continued employment (or resumption of employment) with Black &
▇▇▇▇▇▇ or Buyer, or any of their Affiliates, and no provision of this Exhibit D
shall create any such rights in any such individuals in respect of any benefits
that may be provided, directly or indirectly, under any Employee Plan or Benefit
Arrangement, or any plan or arrangement which may be established by Buyer or any
of its Affiliates. Subject to Applicable Law, unless otherwise provided herein,
no provision of this Agreement shall constitute a limitation on rights to amend,
modify or terminate, either before or after Closing, any such Employee Plan or
Benefit Arrangement of Black & ▇▇▇▇▇▇ or any of its Affiliates.
D.23 Indemnification by Buyer. Effective as of the Closing, Buyer
hereby indemnifies Black & ▇▇▇▇▇▇ and its Affiliates and their respective
directors, officers, employees and agents against, and agrees to hold them
harmless from, any and all Damages arising out of or pertaining to (i) the
termination of employment of, hiring of or failure or refusal to hire, any
Active Employee of the Glass Machinery Business on or after the Closing; (ii)
any modification of the pay, benefits or any other terms and conditions of
employment of any Transferred Employee on or after the Closing; and (iii) any
breach of any covenants or agreements of the Buyer contained in this Exhibit D.
D.24 Actuarial Calculations. Except as otherwise required by Applicable
Law, the amount of the pension obligations to be determined under this Exhibit D
shall be made using the same assumptions and procedures used in calculating the
PBO liability in determining the Final Net Tangible Asset Amount in accordance
with Attachment XVIII.
