EXECUTION COPY
STOCK PURCHASE AGREEMENT
BETWEEN
CINTAS CORPORATION
AND
FILUXEL SA
DATED AS OF
MARCH 15, 2002
TABLE OF CONTENTS
Page
Article I DEFINITIONS.......................................................1
Article II SALE AND PURCHASE OF SHARES.......................................7
2.1 Sale and Purchase of Shares..............................7
2.2 Delivery and Transfer of Shares..........................7
Article III CONSIDERATION.....................................................7
3.1 Amount and Form of Cash Consideration....................7
3.2 Payments at Closing......................................7
3.3 Working Capital Adjustment...............................7
Article IV THE CLOSING.......................................................9
4.1 Date of the Closing......................................9
4.2 Proceedings at Closing...................................9
Article V REPRESENTATIONS AND WARRANTIES OF THE SELLER......................9
5.1 Organization and Good Standing; Subsidiaries.............9
5.2 Authorization...........................................10
5.3 Ownership of Capital Stock..............................10
5.4 Conflicts; Consents.....................................11
5.5 Financial Statements; Absence of New Liabilities;
Ordinary and Usual Course of Business...................11
5.6 Taxes...................................................12
5.7 Real Property...........................................13
5.8 Personal Property.......................................14
5.9 Contracts...............................................15
5.10 Employee Benefits.......................................15
5.11 Litigation..............................................16
5.12 Environmental Matters...................................16
5.13 Compliance..............................................17
5.14 Intellectual Property...................................17
5.15 Brokers.................................................17
5.16 Powers of Attorney......................................18
5.17 Guaranties..............................................18
5.18 Knowledge Regarding Representations;
Satisfaction of Conditions..............................18
Article VI REPRESENTATIONS AND WARRANTIES OF THE PURCHASER..................18
6.1 Organization and Good Standing..........................18
6.2 Authorization...........................................18
6.3 Conflicts; Consents.....................................19
6.4 Litigation..............................................19
6.5 Brokers.................................................19
6.6 Available Funds.........................................19
6.7 Acquisition of Shares...................................19
6.8 Sophisticated Purchaser.................................20
6.9 Knowledge Regarding Representations;
Satisfaction of Conditions..............................20
Article VII COVENANTS OF THE SELLER AND THE PURCHASER........................20
7.1 Access to Properties and Records........................20
7.2 Conduct of Business.....................................20
7.3 Existing Letters of Credit..............................21
7.4 Efforts.................................................22
7.5 Antitrust Approval......................................22
7.6 Confidentiality.........................................22
7.7 Further Assurances......................................23
Article VIII TAX MATTERS......................................................24
8.1 Transfer Tax............................................24
8.2 Tax Returns.............................................24
8.3 Cooperation.............................................24
Article IX PERSONNEL, EMPLOYMENT ARRANGEMENTS AND EMPLOYEES BENEFITS........24
9.1 Employee Contracts......................................24
9.2 Employee Indemnity......................................24
Article X CONDITIONS PRECEDENT TO OBLIGATIONS TO CLOSE AT CLOSING..........25
10.1 Conditions to Obligation of Each Party to Close.........25
10.2 Conditions to the Purchaser's Obligation to Close.......25
10.3 Conditions to the Seller's Obligation to Close..........26
Article XI TERMINATION......................................................27
11.1 Termination.............................................27
11.2 Liabilities After Termination...........................27
Article XII MISCELLANEOUS....................................................28
12.1 No Survival of Representations,
Warranties and Covenants................................28
12.2 Entire Agreement........................................28
12.3 Governing Law...........................................28
12.4 Jurisdiction and Forum; Waiver of Jury Trial............28
12.5 Severability............................................29
12.6 Expenses................................................29
12.7 Table of Contents and Headings..........................29
12.8 Schedules...............................................29
12.9 Notices.................................................29
12.10 Binding Effect; Beneficiaries; Assignment...............30
12.11 No Personal Liability...................................31
12.12 Amendments..............................................31
12.13 Waiver..................................................31
12.14 Counterparts............................................31
12.15 Language................................................31
12.16 No Presumption..........................................31
SCHEDULES
1-A Existing Indebtedness Agreements
1-B Existing Letters of Credit
1-C Existing Liens
1-D Leased Properties
1-E Other Indebtedness
1-F Owned Properties
1-G Permitted Liens
1-H Trademark Agreement
1-I Non-Competition and Non-Disclosure Agreement
1-J Sanis Supply Agreement Term Sheet
3.3 Base Working Capital
5.1 Subsidiaries
5.3 Subsidiary Share Capital Information
5.4 Consents, approvals and waivers to be obtained
by the Sellers
5.5(a) Financial Statements
5.5(c) Conduct of business other than in the ordinary
and usual course
5.5(c)(iii) Schedule of capital expenditures
5.6 Tax disclosures
5.9 Material Contracts
5.10(a) Employee Benefit Plans
5.10(b) Employment, consulting or change of control plans,
policies, agreements or arrangements covering Continued
Employees
5.11 Litigation
5.12 Environmental matters
5.13 Noncompliance with Applicable Laws
5.14 Trademarks
6.3 Consents, approvals and waivers to be obtained
by the Purchaser
7.2 Conduct of business other than in the ordinary course of
business between signing of this Agreement and Closing
10.2(i) Phase II Environmental Assessment
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of March 15, 2002 (together with the
Schedules and Exhibits hereto, this "Agreement"), between Cintas Corporation, a
corporation organized under the laws of Washington (the "Purchaser"), and
Filuxel SA, a corporation organized under the laws of Luxembourg (the "Seller").
W I T N E S S E T H :
-------------------
WHEREAS, Seller owns all of the outstanding shares of common stock, par
value U.S.$1.00 per share (the "Shares"), of Omni Services, Inc., a corporation
organized under the laws of Virginia (the "Company"); and
WHEREAS, upon the terms and subject to the conditions hereinafter set
forth, Seller desires to sell and Purchaser desires to purchase the Shares.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereto hereby agree as follows:
Article I
DEFINITIONS
"Accounting Firm" means PriceWaterhouseCoopers (or, if such firm
shall decline or is unable to act or is not, at the time of such submission,
independent of the Seller and the Purchaser, another independent accounting firm
of international reputation mutually acceptable to the Seller and the
Purchaser).
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person. For the purposes of this definition, "control" means the
possession of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" has the meaning set forth in the opening paragraph.
"Applicable Laws" means (i) all federal, state or local laws
(including common law), regulations and rules (to the extent having the force of
law) of any Governmental Body in the United States of America, and (ii) all
orders, rulings, judgments and decrees of any Governmental Body in the United
States of America, in each case, to the extent binding on the Person or assets
referred to in the context in which the word is used.
"Base Working Capital" has the meaning set forth in Section 3.3(a).
"Business Day" means a day (excluding Saturday and Sunday) on which
banks generally are open for the transaction of business in New York City.
"Cash Consideration" has the meaning set forth in Section 3.1.
"CERCLA" has the meaning set forth in Section 5.13(c).
"Closing" has the meaning set forth in Section 4.1.
"Closing Balance Sheet" means the audited consolidated balance sheet
(including the related notes and schedules thereto) of the Company as of the
close of business on the Business Day immediately preceding the Closing Date to
be prepared pursuant to Section 3.3(b).
"Closing Date" means the date of the Closing.
"Closing Date Working Capital" has the meaning set forth in Section
3.3(b).
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the recitals.
"Confidential Information" has the meaning set forth in Section
7.6(a).
"Confidentiality Agreement" means the confidentiality agreement
entered into between the Seller and the Purchaser, dated December 21, 2001.
"Contract" means written and oral contracts (including any
non-competition agreements), leases of personal property, licenses, royalty
agreements, joint venture agreements, purchase and sale orders, customer
contracts and other agreements.
"Employee Benefit Plans" has the meaning set forth in Section
5.10(a).
"Environmental Law" means any Applicable Law, Order or Permit
relating to: (i) pollution, protection or cleanup of the environment; or (ii)
the use, treatment, storage, disposal, handling, manufacturing, transportation,
shipment, Release or threatened Release of a Hazardous Substance.
"Environmental Liability Estimate" has the meaning set forth in
Schedule 10.2(i).
"ERISA" means the United States Employee Retirement Income Security
Act of 1974, as amended.
"Existing Guarantees" means (i) the guarantees of the Company or its
Subsidiaries guaranteeing any indebtedness of the Company, its Subsidiaries or
any other Affiliates of the Company incurred under the Existing Indebtedness
Agreements and (ii) the guarantees of any other Affiliates of the Company
guaranteeing any indebtedness of the Company or its Subsidiaries incurred under
the Existing Indebtedness Agreements.
"Existing Indebtedness" means all of the obligations with respect to
principal, interest, fees (including any pre-payment penalties) or otherwise
existing under the Existing Indebtedness Agreements with respect to borrowings
by the Company and its Subsidiaries.
"Existing Indebtedness Agreements" means the agreements listed in
Schedule 1-A hereto and any other agreement or instrument entered into pursuant
thereto or in relation therewith.
"Existing Indebtedness Repayment Amount" means the amount required
to repay on the Closing Date all of the Existing Indebtedness outstanding as of
the Closing Date.
"Existing Letters of Credit" means the letters of credit listed in
Schedule 1-B hereto.
"Existing Liens" means (i) the liens on the assets of the Company or
its Subsidiaries securing any indebtedness of the Company, its Subsidiaries or
any other Affiliates of the Company incurred under the Existing Indebtedness
Agreements and (ii) the liens on the assets of any other Affiliates of the
Company securing any indebtedness of the Company or its Subsidiaries incurred
under the Existing Indebtedness Agreements, in each case, created under the
agreements listed in Schedule 1-C hereto.
"Financial Statements" has the meaning set forth in Section 5.5(a).
"Final Adjustment" has the meaning set forth in Section 3.3(b).
"GAAP" has the meaning set forth in Section 3.3(b).
"Governmental Body" means any government or governmental or
regulatory body thereof, or political subdivision thereof, or any agency or
instrumentality thereof, or any court or arbitrator, that has, in each case,
jurisdiction over the matter in question.
"Hazardous Substance" means any substance, waste, pollutant,
contaminant or material which is regulated, defined or designated as hazardous,
dangerous or toxic by a Governmental Body, including without limitation
petroleum and petroleum products or byproducts, asbestos, and polychlorinated
biphenyls.
"HSR Act" has the meaning set forth in Section 5.4(b).
"Improvements" means heating, ventilation, air conditioning,
mechanical, electrical, plumbing and other building systems, environmental
control, remediation and abatement systems, sewer, storm and waste water
systems, irrigation and other water distribution systems, parking facilities,
fire protection, and security and surveillance systems, if any, included in the
Real Property.
"Indebtedness" means (i) all items of borrowings, if any, including
capitalized leases, which in accordance with GAAP would be included in
determining total liabilities as shown on the liability side of a balance sheet
as of the date at which Indebtedness is to be determined; (ii) all guarantees,
letters of credit (other than Existing Letters of Credit) and endorsements
(other than of notes, bills and checks presented to banks for collection or
deposit in the ordinary course of business), if any, in each case to support
Indebtedness of other Persons; and (iii) all items of borrowings, if any,
secured by any mortgage, pledge or Lien existing on property owned subject to
such mortgage, pledge or Lien, whether or not the borrowings secured thereby
shall have been assumed by the Company or any Subsidiary.
"IRS" means the United States Internal Revenue Service.
"Knowledge of the Seller" means to the actual knowledge and belief
(after reasonable inquiry) of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ with respect to the Company and
its Subsidiaries.
"Leased Properties" means the lands and premises listed and
described in Schedule 1-D hereto.
"Leases" means the leases of the Leased Properties.
"Legal Proceeding" means any judicial, administrative or arbitral
action, suit or proceeding (public or private).
"Lenders" means the lenders of the Existing Indebtedness.
"Liabilities" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, matured or unmatured or
determined or determinable, including, without limitation, those arising under
any Applicable Law and those arising under any contract, agreement, arrangement,
commitment or undertaking.
"Lien" means any lien, pledge, charge, mortgage, hypothecation, deed
of trust, security interest, option, conditional sales agreement or other
encumbrance.
"Material Adverse Effect" means an effect that results in or causes
a material adverse change in the business, assets or financial condition of the
Company and its Subsidiaries, taken as a whole, except to the extent such
material adverse change results from or is caused by (i) conditions generally
affecting any of the industries in which the Company is engaged and not
disproportionately affecting the Company and its Subsidiaries, taken as a whole,
or the general economy or (ii) the execution and delivery of this Agreement and
the anticipated consummation of the transactions contemplated hereby.
"Material Contracts" has the meaning set forth in Section 5.9.
"Non-Competition and Non-Disclosure Agreement" means the agreement
to be executed by the Purchaser and the Seller substantially in the form set
forth in Schedule 1-J hereto.
"Order" means any applicable order, injunction, judgment, decree,
ruling, writ, assessment or arbitration award from any Governmental Body.
"Other Indebtedness" means the principal amount of, and unpaid
interest accrued to the Closing Date with respect to, the promissory notes
listed on Schedule 1-E hereto.
"Owned Properties" means the lands and premises listed and described on
Schedule 1-F hereto.
"Permit" means any qualification, approval, authorization, consent,
franchise, license, permit or certificate from any Governmental Body.
"Permitted Liens" means (i) Liens for current Taxes not yet due and
payable or not yet delinquent or the amount or validity of which is being
contested in good faith by appropriate proceedings; (ii) mechanics',
materialmen's, carriers', workers', repairers', maritime and statutory liens and
rights in rem and other similar Liens arising or incurred in the ordinary and
usual course of business and not relating to any past-due Liabilities; (iii)
zoning, entitlement and other land use and environmental regulations by
Governmental Bodies; (iv) leases entered into in the ordinary and usual course
of business providing for the use or occupancy of a portion or portions of the
Real Property; (v) Liens, encroachments and other imperfections of title which
do not materially detract from the value of or materially interfere with the
present use of the assets of the Company and its Subsidiaries; (vi) Liens
affecting a lessor's or licensor's interest in personal property leased or
licensed to the Company or any of its Subsidiaries; (vii) Liens registered under
the Uniform Commercial Code as adopted in any applicable state or similar
legislation in other jurisdictions by any lessor or licensor of personal
property to the Company or any of its Subsidiaries; (viii) prior to the Closing,
the Existing Liens; and (ix) the Liens set forth in Schedule 1-G hereto.
"Person" means any individual, corporation, partnership, firm,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, Governmental Body or other entity.
"Personal Property" means all tangible personal property, including
all equipment, inventories of raw materials, work-in-process, packaging
supplies, samples and finished goods used or held for use by the Company or its
Subsidiaries.
"Present Value of the Seller's Portion of Environmental Liability
Estimate" means the present value of the portion, if any, of the
Environmental Liability Estimate in excess of $5,000,000, such excess portion
being discounted at a rate of 4%, from the estimated times at which the
investigation, removal or remediation costs comprising the Environmental
Liability Estimate are estimated to be incurred (assuming the work commences
promptly after Closing).
"Purchaser" has the meaning set forth in the opening paragraph.
"Purchaser Benefit Plans" has the meaning set forth in Section
9.1(b).
"Purchaser Welfare Plans" has the meaning set forth in Section
9.1(b).
"Real Property" means the Leased Properties and the Owned
Properties.
"Reference Balance Sheet" means the audited consolidated balance
sheet (including the related notes and schedules thereto) of the Company as of
January 31, 2002, a copy of which is set forth in Schedule 5.5(a), and which
balance sheet has been prepared in conformity with GAAP, applied on a consistent
basis.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing into
the environment, including, without limitation, the abandonment or discarding of
barrels, containers, and other closed receptacles containing any Hazardous
Substances.
"Sanis Supply Agreement" means the agreement to be executed by
▇▇▇▇▇▇▇ Hygiene Products, an affiliate of Seller, and Purchaser, the principal
terms of which are set forth in Schedule 1-K hereto.
"Seller" has the meaning set forth in the opening paragraph.
"Seller's Accountants" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, independent accountant
of the Seller.
"Shares" has the meaning set forth in the recitals.
"Subsidiary" means, with respect to any entity, a corporation that
directly or indirectly is controlled by such entity. For purposes of this
definition, "control" shall mean the ownership of stock of a corporation
constituting more than 50% of the total combined voting power of all classes of
stock of such corporation entitled to vote.
"SWDA" has the meaning set forth in Section 5.13(c).
"Taxes" means all taxes, duties, fees, premiums, assessments,
imposts, levies and other charges of any kind whatsoever imposed by any
Governmental Body, together with all interest, penalties, fines, additions to
tax or other additional amounts imposed in respect thereof, including those
levied on, or measured by, or referred to as income, gross receipts, profits,
capital, transfer, land transfer, recordation, real estate conveyance,
documentary, filing, sales, goods and services, harmonized sales, use,
value-added, excise, stamp, withholding, business, franchising, property,
employer health, payroll, employment, health, social services, education and
social security taxes, all surtaxes, all customs duties and import and export
taxes and any government employment insurance, health insurance, pension plan
premiums or contributions.
"Tax Returns" includes all returns, reports, declarations,
elections, notices, filings, information returns and statements filed or
required to be filed in respect of Taxes or in connection with the
administration, implementation or enforcement of, or compliance with, any
Applicable Law relating to any Taxes.
"Trademark Agreement" means the trademark agreement with respect to
the trademarks utilized by the Company or its Subsidiaries substantially in the
form set forth in Schedule 1-H hereto.
"Trademarks" has the meaning set forth in Section 5.14.
"Transaction Documents" means this Agreement, the Trademark Agreement
and each other agreement, document, instrument and certificate to be executed in
connection with the Transactions.
"Transactions" has the meaning set forth in Section 4.1 hereof.
"U.S.$" means the lawful currency of the United States of America.
Article II
SALE AND PURCHASE OF SHARES
2.1 Sale and Purchase of Shares. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing, Seller shall sell to
Purchaser, and Purchaser shall purchase from Seller, the Shares, free and clear
of all Liens, options, purchase rights, subscription rights, preemptive rights
or other restrictions on transfer and together with all rights now and hereafter
attaching thereto.
2.2 Delivery and Transfer of Shares. Seller shall deliver to
Purchaser certificates for all of the Shares, duly endorsed for transfer or
accompanied by duly executed stock powers or stock transfer forms sufficient to
convey to Purchaser good title to the Shares, free and clear of all Liens,
options, purchase rights, subscription rights, preemptive rights or other
restrictions on transfer on the Closing Date.
Article III
CONSIDERATION
3.1 Amount and Form of Cash Consideration. The consideration to be
paid by the Purchaser to the Seller on the Closing Date for the Shares under
this Agreement (the "Cash Consideration") shall be U.S.$660,000,000 in cash:
(i) less the Existing Indebtedness Repayment Amount;
(ii) less the amount of the Other Indebtedness; and
(iii) less, if any, the Present Value of Seller's Portion of the
Environmental Liability Estimate.
3.2 Payments at Closing. (a) The payment of the Cash Consideration
shall be made on the Closing Date by wire transfer to the account(s) specified
by the Seller to the Purchaser.
(b) On the Closing Date, the Purchaser shall repay on behalf of the Company
the Existing Indebtedness Repayment Amount.
(c) The Seller shall notify the Purchaser of the Existing Indebtedness
Repayment Amount and the amount of the Other Indebtedness and shall provide
Purchaser with wire transfer instructions for amounts to be paid by Purchaser to
Seller hereunder and all amounts to payoff the Existing Indebtedness at least
two (2) Business Days prior to the Closing Date.
3.3 Working Capital Adjustment. (a) Schedule 3.3 hereto sets forth,
as of January 31, 2002, the book value in U.S. dollars of the current assets and
current liabilities (excluding any current liabilities consisting of Existing
Indebtedness or Other Indebtedness and any current liabilities for compensated
absences pay and including any liabilities consisting of deferred income taxes)
of the Company and the excess of such current assets over such current
liabilities (such excess, the "Base Working Capital"), all as derived from the
Reference Balance Sheet. The Base Working Capital is U.S.$8,206,000.
(b) As promptly as practicable following the Closing Date, the Seller shall
prepare and deliver to the Purchaser (i) the Closing Balance Sheet, together
with the report thereon of Seller's Accountants, stating that the Closing
Balance Sheet presents fairly, in all material respects, the financial position
of the Company as of the close of business on the Business Day immediately
preceding the Closing Date in accordance with U.S. generally accepted accounting
principles ("GAAP") applied on a basis consistent with the preparation of the
Reference Balance Sheet; (ii) a statement setting forth, as of the close of
business on the Business Day immediately preceding the Closing Date, the book
value in U.S. dollars of the current assets and current liabilities (excluding
any current liabilities consisting of Existing Indebtedness or Other
Indebtedness and any current liabilities for compensated absences pay and
including any liabilities consisting of deferred income taxes) of the Company
and the excess of such current assets over such current liabilities (such
excess, the "Closing Date Working Capital"), all as derived from the Closing
Balance Sheet, and (iii) a calculation of the excess of the Closing Date Working
Capital over the Base Working Capital (such excess, the "Final Adjustment"). The
Purchaser shall have the right to review all work papers and procedures used to
prepare the Closing Balance Sheet and the calculation of the Closing Date
Working Capital and the Final Adjustment. Unless the Purchaser, within
forty-five (45) days after delivery to the Purchaser of the Closing Balance
Sheet and such calculations, notifies the Seller in writing that it objects to
such calculations, and specifies the basis for such objection and each amount in
dispute, the Closing Balance Sheet and such calculations shall become final and
binding upon the parties for purposes of this Agreement. If the Seller and the
Purchaser, together with their respective advisors, are unable to resolve any
such objections within ten (10) days after any such notification has been given,
the dispute shall be submitted to the Accounting Firm, which shall be instructed
to resolve the dispute expeditiously. The Accounting Firm shall make a final
binding determination as to the matter or matters in dispute. The Purchaser
agrees to cooperate, and agrees to cause the Company to cooperate, with the
Seller (and the Seller's authorized representatives), and the Seller agrees to
cooperate with the Purchaser and the Company (and their respective authorized
representatives), in order to resolve any and all matters in dispute as soon as
possible.
Notwithstanding the fact that the report of Seller's Accountants will state
that the Closing Balance Sheet presents fairly, in all material respects, the
financial position of the Company as of the close of business on the Business
Day immediately preceding the Closing Date in accordance with GAAP, all of the
calculations specified in the preceding paragraph and the determination of the
Accounting Firm specified in the preceding paragraph shall be made without
regard to materiality.
(c) Within ten (10) days after the determination of the Final Adjustment,
if the amount yielded by such calculation is a positive number, then the
Purchaser shall pay to the Seller such amount, and if the amount yielded by such
calculation is a negative number, then the Seller shall pay to the Purchaser
such amount (as if it were a positive number).
(d) Such payments shall be by wire transfer of immediately available funds,
and shall include simple interest on such amounts at a rate per annum equal to
5%, commencing on the Closing Date and continuing until the date of full payment
hereunder.
(e) In connection with Section 3.3(b), the Seller shall bear 100% of the
fees, costs and expenses of the Seller's Accountants and the Purchaser shall
bear 100% of the fees, costs and expenses of the Accounting Firm.
(f) At the time that the payment is due under Section 3.3(c), the Seller
shall also pay the Purchaser an amount of any Indebtedness of the Company and/or
its Subsidiaries remaining outstanding as of the Closing Date (other than
Existing Indebtedness and Other Indebtedness).
Article IV
THE CLOSING
4.1 Date of the Closing. Except as hereinafter provided, the closing
(the "Closing") of the transactions described herein (the "Transactions"), shall
take place at the offices of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in New York, on
the third Business Day following the date on which all of the conditions
contained in Article X have been satisfied or, in the case of Sections 10.1 and
10.2, waived by the Purchaser, or, in the case of Sections 10.1 and 10.3, waived
by the Seller, or at such other place and at such other time and date as may be
mutually agreed upon in writing by the Purchaser and the Seller.
4.2 Proceedings at Closing. All proceedings to be taken and all
documents (including, without limitation, any applicable documents described in
Article X) to be executed and delivered by the Seller and any third parties in
connection with the consummation of the transactions contemplated by any of the
Transaction Documents shall be reasonably satisfactory in form and substance to
the Purchaser and its counsel. All proceedings to be taken and all documents
(including, without limitation, any applicable documents described in Article X)
to be executed and delivered by the Purchaser and any third parties in
connection with the consummation of the transactions contemplated by any of the
Transaction Documents shall be reasonably satisfactory in form and substance to
the Seller and their counsel. All proceedings to be taken and all documents to
be executed and delivered by all parties at the Closing shall be deemed to have
been taken and executed simultaneously, and no proceedings shall be deemed taken
nor any documents executed or delivered until all have been taken, executed and
delivered.
Article V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser, as of the date hereof:
5.1 Organization and Good Standing; Subsidiaries. (a) Each of the
Seller and the Company is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization. The
Company has full power and authority to own, lease and operate its assets,
properties and rights and to carry on its business as now conducted. The Company
is duly authorized to conduct business and is in good standing (or the local law
equivalent) under the laws of each jurisdiction where such qualification is
required and in which the failure to be so qualified, individually or in the
aggregate, would have a Material Adverse Effect. The Company is not in default
under or in violation of any provision of its charter or bylaws.
(b) Schedule 5.1 sets forth a complete and accurate list of each Subsidiary
of the Company. Each Subsidiary of the Company is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, and has full power and authority to own, lease and operate its
assets, properties and rights and to carry on its business as now conducted.
Each Subsidiary is duly authorized to conduct business and is in good standing
(or the local law equivalent) under the laws of each jurisdiction where such
qualification is required and in which the failure to be so qualified,
individually or in the aggregate, would have a Material Adverse Effect. No
Subsidiary is in default under or in violation of any provision of its charter
or bylaws.
5.2 Authorization. The Seller has full corporate power and authority
to execute and deliver each Transaction Document to which it is or will be a
signatory, and to perform fully its obligations thereunder. The execution,
delivery and performance by the Seller of this Agreement has been, and each
other Transaction Document to which it is or will be a signatory has been or
shall be, on or prior to the Closing Date, duly authorized by all necessary
corporate action on the part of the Seller. This Agreement has been, and each
other Transaction Document to which the Seller is to be a party will be, duly
executed and delivered by the Seller, and (assuming the due authorization,
execution and delivery by the other parties thereto) this Agreement constitutes,
and each other Transaction Document to which the Seller is to be a party, when
so executed and delivered, will constitute, legal, valid and binding obligations
of the Seller, enforceable against the Seller in accordance with its terms.
5.3 Ownership of Capital Stock. (a) The entire authorized capital
stock of the Company consists of (i) 1,200,000 shares of common stock, par value
$1.00 per share, of which 136,715 shares are issued outstanding and held of
record and beneficially by the Seller and no shares are held in treasury and
(ii) 500,000 shares of preferred stock, of which none are outstanding and none
are held in treasury. All of the Shares have been duly authorized, are validly
issued, fully paid and non-assessable. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion rights,
exchange rights, or other contracts or commitments that could require the
Company to issue, sell, or otherwise cause to become outstanding any of its
capital stock. There are no outstanding or authorized stock appreciation,
phantom stock, profit participation or similar rights with respect to the
Company. There are no voting trusts, proxies, or other agreements or
understandings with respect to the voting of the capital stock of the Company.
(b) Schedule 5.3 sets forth for each Subsidiary of the Company: (i) its
name and jurisdiction of incorporation; (ii) the number of shares of authorized
capital stock of each class of its capital stock; (iii) the number of issued and
outstanding shares of each class of its capital stock, the names of the holders
thereof, and the number of shares held by each such holder; and (iv) the number
of shares of its capital stock held in treasury. All of the issued and
outstanding shares of capital stock of each Subsidiary of the Company have been
duly authorized and are validly issued, fully paid and nonassessable. One or
more of the Company and its Subsidiaries holds of record and owns beneficially
all of the outstanding shares of each Subsidiary of the Company, free and clear
of any restrictions on transfer, Liens (other than Liens to be discharged at the
Closing upon repayment of the Existing Indebtedness Repayment Amount), options,
warrants, purchase rights, contracts, commitments, equities, claims and demands.
There are no outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights or other contracts or
commitments that could require any of the Company and its Subsidiaries to sell,
transfer, or otherwise dispose of any capital stock of any of its Subsidiaries
or that could require any Subsidiary of the Company to issue, sell or otherwise
cause to become outstanding any of its own capital stock. There are no
outstanding stock appreciation, phantom stock, profit participation or similar
rights with respect to any Subsidiary of the Company. There are no voting
trusts, proxies, or other agreements or understandings with respect to the
voting of any capital stock of any Subsidiary of the Company. None of the
Company and its Subsidiaries controls directly or indirectly or has any direct
or indirect equity participation in any corporation, partnership, limited
liability company, trust or other business association that is not a Subsidiary
of the Company, other than de minimis amounts.
5.4 Conflicts; Consents. (a) Subject to receipt of the consents,
approvals and waivers set forth in Schedule 5.4, neither the execution and
delivery by the Seller of the Transaction Documents to which it is or will be a
party, nor the consummation of the transactions contemplated hereby or thereby
or the compliance by the Seller with any of the provisions thereof will: (i)
conflict with, or result in the breach of, any provision of the organizational
documents of the Seller, the Company or its Subsidiaries; (ii) conflict with,
violate, result in the breach or termination of, or constitute a default or give
rise to any right of termination or acceleration or right to increase the
obligations or otherwise modify the terms under any Contract, any of the Leases
or any Permit to which the Company or any of its Subsidiaries is a party or by
which any of them or any of their respective properties or assets are bound; or
(iii) result in the creation of any Lien (other than any Lien in favor of the
Purchaser) upon any of the Shares or upon any of the assets of the Company or
any of its Subsidiaries; except, in the case of clause (ii) above, for such
conflicts, violations, breaches, terminations, defaults, rights or modifications
which will not have a Material Adverse Effect.
(b) Other than the filing with the Federal Trade Commission and the
Antitrust Division of the Department of Justice of a premerger notification and
report form as required by the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇"), and except as set forth in Schedule 5.4, no consent,
approval or authorization of, permit from, or declaration, filing or
registration with, any Governmental Body is required to be made or obtained by
the Seller or its Affiliates in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, except where the failure to obtain such consent, approval,
authorization or permit, or to make such declaration, filing or registration,
would not have a Material Adverse Effect.
5.5 Financial Statements; Absence of New Liabilities; Ordinary and Usual
Course of Business. (a) The financial statements which are attached hereto
in Schedule 5.5(a)(1), consisting of the audited consolidated financial
statements of the Company and its Subsidiaries at and for the years ended
January 31, 2000, 2001 and 2002 (together with the related schedules and notes,
the "Financial Statements"), include all Liabilities required by GAAP to be
included, and fairly present in conformity with GAAP, applied on a consistent
basis, the financial condition of the Company and its Subsidiaries at the dates
thereof and the results of their operations and changes in financial condition
for the periods then ended.
(b) Since January 31, 2002, the Company and its Subsidiaries have not
incurred any Liabilities other than Liabilities (i) accrued, reflected, noted or
specifically reserved against on the Reference Balance Sheet, (ii) disclosed in
any of the Schedules to this Agreement or in any document listed therein or
(iii) incurred in the ordinary course of business, consistent with past practice
of the Company and its Subsidiaries, and no such Liabilities specified in clause
(iii), individually or collectively, have had a Material Adverse Effect. As of
the Closing Date, the Company and its Subsidiaries will have no Indebtedness
other than the Existing Indebtedness and the Other Indebtedness and other than
Indebtedness, if any, the amount of which shall be paid by the Seller to the
Purchaser pursuant to Section 3.3(f) hereof.
(c) Except as (i) contemplated by this Agreement or (ii) set forth in
Schedule 5.5(c), since January 31, 2002, the Company and its Subsidiaries have
operated their respective businesses in the ordinary and usual course, and there
has been no Material Adverse Effect. Without limiting the generality of the
foregoing, since January 31, 2002:
(i) neither the Company nor any of its Subsidiaries has sold, leased,
transferred, or assigned any of its assets, tangible or intangible, other than
for a fair consideration in the ordinary course of business;
(ii) neither the Company nor any of its Subsidiaries has entered into
any Contract (or series of related Contracts) outside the ordinary course
of business;
(iii) neither the Company nor any of its Subsidiaries has made any
capital expenditure (or series of related capital expenditures) either involving
an expenditure (or series of related expenditures) except as contemplated by
Schedule 5.5(c)(iii);
(iv) neither the Company nor any of its Subsidiaries has made any
capital investment in, any loan to, or any acquisition of the securities or
assets of, any other Person;
(v) neither the Company nor any of its Subsidiaries has entered into
any collective bargaining agreement, written or oral;
(vi) neither the Company nor any of its Subsidiaries has granted any
increase in the base compensation of any of its directors, officers, and
employees outside the ordinary course of business;
(vii) except as set forth in Schedule 5.11(c), neither the Company nor
any of its Subsidiaries has adopted, amended, modified, or terminated any bonus,
profit sharing, incentive, severance or other plan, contract or commitment for
the benefit of any of its directors, officers, and employees (or taken any such
action with respect to any of the Employee Benefit Plans); and
(viii) neither the Company nor any of its Subsidiaries has committed to
any of the foregoing.
5.6 Taxes. Except as set forth in Schedule 5.6:
(a) Each of the Company and its Subsidiaries has filed all Tax Returns that
it was required to file. All such Tax Returns were correct and complete in all
material respects. All Taxes owed by any of the Company and its Subsidiaries
(whether or not shown on any Tax Return) have been paid. None of the Company and
its Subsidiaries currently is the beneficiary of any extension of time within
which to file any Tax Return for fiscal years ending prior to January 31, 2002.
Since January 1, 1995, no written claim has been made by an authority in a
jurisdiction where any of the Company and its Subsidiaries does not file Tax
Returns that the Company or such Subsidiary is or may be subject to taxation by
that jurisdiction. There are no material Liens on any of the assets of any of
the Company and its Subsidiaries that arose in connection with any failure (or
alleged failure) to pay any Tax.
(b) Each of the Company and its Subsidiaries has withheld and paid all
Taxes required to have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor, stockholder or other
third party.
(c) To the Knowledge of the Seller, the Seller does not expect any
authority to assess any additional Taxes for any period for which Tax Returns
have been filed. There is no dispute or claim concerning any tax liability of
any of the Company and its Subsidiaries claimed or raised by any authority in
writing. Schedule 5.7 indicates all Tax Returns filed since January 1, 1995 that
currently are the subject of audit. The Seller will deliver to the Purchaser, at
the request of the Purchaser, correct and complete copies of all examination
reports and statements of deficiencies assessed against or agreed to by any of
the Company and its Subsidiaries since January 1, 1995.
(d) None of the Company and its Subsidiaries has waived any statute of
limitations in respect of Taxes or agreed to any extension of time with respect
to an assessment or deficiency of any Taxes.
(e) Each of the Company and its Subsidiaries has disclosed on its federal
income Tax Returns all positions taken therein that could give rise to a
substantial understatement of federal income tax within the meaning of Code
ss.6662. None of the Company and its Subsidiaries is a party to any allocation
or sharing agreement regarding Taxes. None of the Company and its Subsidiaries:
(A) has been a member of an affiliated group filing a consolidated federal
income Tax Return (other than a group the common parent of which was the
Company); or (B) has any liability for the Taxes of any Person (other than any
of the Company and its Subsidiaries) under Reg. ss.1.1502-6 (or any similar
provision of state, local, or foreign law), as a transferee or successor, by
contract, or otherwise.
(f) To the Knowledge of the Seller, the unpaid Taxes of the Company and its
Subsidiaries: (A) did not, as of January 31, 2002, exceed the reserve for Taxes
on the Reference Balance Sheet (rather than any reserve for deferred Taxes
established to reflect timing differences between book and tax income) set forth
on the face of the Reference Balance Sheet (rather than in any notes thereto);
and (B) do not exceed that reserve as adjusted for the passage of time through
the Closing Date in accordance with the past custom and practice of the Company
and its Subsidiaries in filing their Tax Returns.
5.7 Real Property. (a) The Company or one of its Subsidiaries has
good, marketable and insurable freehold title to the Owned Properties, free and
clear of all Liens except for Permitted Liens.
(b) The Company or one of its Subsidiaries has a valid and subsisting
leasehold estate in and the right to quiet enjoyment of each of the Leased
Properties as lessee for the full term of the lease thereof. Except as specified
in Schedule 1-D, and in each case other than any such failure, breach, default,
or waiver, as applicable, which, individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect, (i) to the Knowledge of the
Seller, each of the Leases is valid, binding, in full force and effect, and
enforceable by the Company or such Subsidiary, as the case may be, in accordance
with its terms; (ii) neither the Company nor the Subsidiary, as the case may be,
is in breach or default in any material respect under any of the Leases; (iii)
neither the Company nor the Subsidiary, as the case may be, has waived any of
its material rights under any of the Leases or modified any of the material
terms thereof; and (iv) to the Knowledge of the Seller, no other party to any
Leases is in breach or default in any material respect thereunder. Schedule 1-D
contains a list of the Leases.
(c) The Real Property comprises all of the real property used or intended
to be used in, or otherwise related to, the Company's and its Subsidiaries'
business; and none of the Company or its Subsidiaries, except as set forth on
Schedule 5.7(c) hereto, is a party to any agreement or option to purchase any
real property or interest therein.
(d) To the Knowledge of the Seller, there are no structural deficiencies
affecting any of the Improvements and there are no facts or conditions affecting
any of the Improvements which, in either case, would, individually or in the
aggregate, materially interfere with the use or occupancy of any of the Leased
Properties or the Owned Properties in the operation of the Company's or any
Subsidiary's business as currently conducted thereon.
(e) There is no condemnation, expropriation or other proceeding in eminent
domain, pending or, to the Knowledge of the Seller, threatened affecting any
parcel of Real Property or any portion thereof or interest therein. There is no
material injunction, decree, order, writ or judgment outstanding, nor any
claims, litigation, administrative actions or similar proceedings, pending or,
to the Knowledge of the Seller, threatened relating to the ownership, lease, use
or occupancy of the Real Property that would, individually or in the aggregate,
materially interfere with the use or occupancy of any of the Leased Properties
or the Owned Properties in the operation of the Company's or any Subsidiary's
business as currently conducted thereon.
(f) To the Knowledge of the Seller, no lessor of any Lease has challenged
the validity of such Lease. None of the Leases or any rights therein held by the
Company or any Subsidiary have been assigned to others.(1)
5.8 Personal Property. To the Knowledge of the Seller, the Company
and its Subsidiaries collectively have sufficiently good and valid title to, or
an adequate, valid and subsisting leasehold interest in, or license to, the
Personal Property, so as to allow the business of the Company and its
Subsidiaries to be conducted, as and where currently conducted. The Personal
Property is, or at the Closing upon repayment of the Existing Indebtedness
Repayment Amount will be, free of Liens other than Permitted Liens. The
consummation of the transactions contemplated hereby will not alter or impair
the ability of the business of the Company and its Subsidiaries to be conducted
as currently conducted in any respect which, individually or in the aggregate
would have a Material Adverse Effect.
----------------
(1) Please note that change of control provisions for all Leases are covered in
Section 5.4.
5.9 Contracts. Schedule 5.9 lists each of the Contracts of the
Company and its Subsidiaries (together with the parties to each such Contract
and the date thereof) (i) that involves payment or other obligations from
customers of more than U.S.$500,000 in the aggregate, (ii) that involves payment
or other obligations to or from other third parties of more than U.S.$100,000 in
the aggregate or (iii) whose termination would have a Material Adverse Effect
(collectively the Contracts described in 5.10(i), (ii) and (iii), the "Material
Contracts"). Except as set forth in Schedule 5.9, and other than any such
failure, breach, default, or waiver, as applicable, which, individually or in
the aggregate, would not be reasonably likely to have a Material Adverse Effect,
(i) each of the Contracts is valid, binding, in full force and effect, and
enforceable by the Company or its Subsidiary that is a party thereto in
accordance with its terms; (ii) the Company and its Subsidiaries are not in
breach or default in any respect under any of the Contracts; (iii) the Company
and its Subsidiaries have not waived any of their rights under any of the
Contracts or modified any of the terms thereof and (iv) to the Knowledge of the
Seller, no other party to any Contract is in breach or default in any respect
thereunder. The Seller will deliver to the Purchaser, at the request of the
Purchaser, correct and complete copies of all Contracts. The percentage of
employees of the Company and its Subsidiaries having regular contact with the
customers of the Company and its Subsidiaries who have signed contracts
containing non-competition covenants is not less than 90%.
5.10 Employee Benefits. (a) Schedule 5.10(a) sets forth a complete
and accurate list of all material employee pension, profit sharing, bonus,
deferred compensation, incentive compensation, health, welfare, death benefit,
retirement, savings or fringe employee benefit plans, agreements, practices or
arrangements, including any material "employee benefit plans" as defined in
Section 3(3) of ERISA, maintained by the Company and its Subsidiaries or to
which the Company or its Subsidiaries contributes or is obligated to contribute
with respect to any employee (collectively, the "Employee Benefit Plans"). True,
correct and complete copies of the following documents with respect to each of
the Employee Benefit Plans (as applicable) have been made available to the
Purchaser: (i) any plans and all amendments thereto, (ii) the most recent Forms
5500 filed with the IRS, (iii) the most recent IRS determination letter with
respect to any Employee Benefit Plan intended to be qualified under Section
401(a) of the Code and (iv) the most recent summary plan description; and (v)
each trust agreement annuity or insurance contract, or other funding instrument.
None of the Employee Benefit Plans listed in Schedule 5.10(a) is a
"multiemployer plan" as defined in Section 3(37) of ERISA or a "multiple
employer" plan within the meaning of Section 4064 of ERISA.
(b) With respect to each Employee Benefit Plan that any of the Company, its
Subsidiaries, and any ERISA affiliate maintains, to which any of them
contributes or has any obligation to contribute, or with respect to which any of
them has any Liability or potential Liability, except as set forth on Schedule
5.10(b) hereto: (i) the Company has administered and documented each Employee
Benefit Plan in compliance with such plan's terms and applicable law in all
respects, and (ii) each Employee Benefit Plan and any related trust agreement,
annuity or insurance contract, or other funding instrument currently complies,
and has complied in the past, in all material respects, both as to form and
operating, with the terms of such plan and related documents and with all
Applicable Law, including ERISA and the Code, as well as the provisions of any
applicable arrangements or documents.
(c) Schedule 5.10(b) sets forth a complete and accurate list of all
material employment, consulting or change in control plans, policies, agreements
or arrangements that cover any employee.
(d) Neither the Company nor any of its Subsidiaries are party to any labor
or collective bargaining agreement with respect to the employees and, to the
Knowledge of the Seller, there are no efforts to organize such employees. There
are no: (i) strikes, work stoppages or slowdowns or (ii) grievances or other
labor disputes pending or, to the Knowledge of the Seller, threatened against
the Company or its Subsidiaries, in each case which, individually or in the
aggregate, would have a Material Adverse Effect. Except as set forth in Schedule
5.11, there are no complaints, charges or claims against the Company or its
Subsidiaries pending or, to the Knowledge of the Seller, threatened to be
brought or filed with any Governmental Body in connection with the employment by
the Company or its Subsidiaries of any individual, including any claim relating
to employment discrimination, equal pay, sexual harassment, employee safety and
health, wages and hours or workers' compensation, which, individually or in the
aggregate, would have a Material Adverse Effect.
5.11 Litigation. Except as set forth in Schedule 5.11, there is no
Legal Proceeding pending or, to the Knowledge of the Seller, threatened that
questions the validity of any Transaction Document, against the Seller, the
Company or any of its Subsidiaries, or any action taken or to be taken by the
Seller in connection therewith, or which seeks to enjoin the consummation of the
transactions contemplated thereby, nor is there any outstanding judgment, decree
or injunction, against the Seller, the Company or any of its Subsidiaries, or
any statute, rule or order of any Governmental Body applicable to the Seller,
the Company or any of its Subsidiaries which has or would reasonably be likely
to have, individually or in the aggregate, a material adverse effect on the
Seller's ability to complete the transactions contemplated herein or in any of
the other Transaction Documents. Schedule 5.11 sets forth a true, correct and
complete list of all pending or, to the Knowledge of the Seller, threatened
material Legal Proceedings in which the Company or any of its Subsidiaries is a
party which, individually or in the aggregate, would be reasonably likely to
have a Material Adverse Effect.
5.12 Environmental Matters. Except as set forth in Schedule 5.12 or
the documents listed therein:
(a) the Real Property and the business conducted thereon by the Company and
its Subsidiaries are in compliance with Environmental Law, neither the Company
nor its Subsidiaries have, during the past five years, received any notice of
any alleged violation of Environmental Law from any Governmental Body, and to
the Knowledge of the Seller no conditions or circumstances exist that would
preclude continued compliance with Environmental Law, except to the extent that
such failure to comply or any such violation would not, individually or in the
aggregate, have a Material Adverse Effect;
(b) there are no pending Legal Proceedings pursuant to Environmental Law
associated with the Real Property or in which the Company or any of its
Subsidiaries is a party, and to the Knowledge of the Seller, no such Legal
Proceedings have been threatened, except to the extent that such Legal
Proceedings would not, individually or in the aggregate, have a Material Adverse
Effect;
(c) neither the Company nor any of its Subsidiaries has received any
written notice of potential responsibility concerning any Hazardous Substances
Released, treated, stored, handled, disposed of, generated at or transported
from any property or facility pursuant to the U.S. Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), the
Solid Waste Disposal Act, as amended ("SWDA"), any state counterpart thereof or
any Environmental Law, and none of the Real Property appear on the U.S. National
Priorities List or any state counterpart thereof; and
(d) to the Knowledge of the Seller, there has been no Release of a
Hazardous Substance at or from the Real Property that requires investigation or
remediation of soil, groundwater, surface water or sediments pursuant to
Environmental Law as in effect as of the Closing Date, or that is reasonably
expected to give rise to a claim for response costs, corrective actions costs,
personal injury except for a Release that is not reasonably likely to have a
Material Adverse Effect.
5.13 Compliance. To the Knowledge of the Seller, the Company and its
Subsidiaries are in compliance with all Applicable Laws, except to the extent
that failure to comply would not, individually or in the aggregate, have a
Material Adverse Effect or as set forth in Schedule 5.13. To the Knowledge of
the Seller, neither the Company nor any of its Subsidiaries have received any
notice asserting a failure, or possible failure, to comply with any such
Applicable Laws, the subject of which notice has not been resolved as required
thereby or otherwise to the satisfaction of the party sending the notice, except
for such failure as would not, individually or in the aggregate, have a Material
Adverse Effect or as set forth in Schedule 5.13. For purposes of this Section
5.13, the term "Applicable Laws" shall be deemed to exclude all Environmental
Laws.
5.14 Intellectual Property. Schedule 5.14 sets forth a complete and
accurate list of all federally registered trademarks and service marks, and
applications to federally register the foregoing, in each case, that are owned
by the Company and its Subsidiaries (the "Trademarks"). To the Knowledge of the
Seller, except as set forth in this Agreement, the Trademark Agreement or in
Schedule 5.14 and except as would not reasonably be expected to have a Material
Adverse Effect, the Company and its Subsidiaries have the exclusive right to use
each federally registered trademark and service ▇▇▇▇ listed on Schedule 5.14 as
it is used with the goods and services set forth in the certificate of
registration for such ▇▇▇▇, and the consummation of the transactions
contemplated hereby will not alter or impair any such rights.
5.15 Brokers. Except for those Persons whose fees and expenses shall
be the sole responsibility of the Seller (including ▇▇▇▇▇▇▇ ▇▇▇▇▇), no Person
has acted directly or indirectly as a broker, finder or financial advisor for
the Seller in connection with the negotiations relating to, or the transactions
contemplated by, the Transaction Documents, and no Person is entitled to any fee
or commission or like payment in respect thereof, based in any way on any
agreement, arrangement or understanding made by or on behalf of the Seller.
5.16 Powers of Attorney. To the Knowledge of Seller, there are no
outstanding powers of attorney executed on behalf of any of the Company and its
Subsidiaries.
5.17 Guaranties. Other than the Existing Guarantees, none of the
Company and its Subsidiaries is a guarantor or otherwise is liable for any
Liability or obligation (including indebtedness) of any other Person.
5.18 Knowledge Regarding Representations; Satisfaction of Conditions.
As of the date of this Agreement, the Seller is not aware of any inaccuracy or
misstatement in, or breach of, any representation or warranty of the Purchaser
contained herein. The Seller is not, as of the date of this Agreement, aware of
any reason why the conditions set forth in Article X hereof would not be
satisfied on the Closing Date.
Except for the representations and warranties contained in Article V of
this Agreement, neither the Seller nor any of its Affiliates, officers,
directors, employees, agents, representatives, nor any other Person, makes or
shall be deemed to make any representation or warranty to the Purchaser, express
or implied, at law or in equity, on behalf of the Seller, and the Seller hereby
disclaims any such representation or warranty whether by the Seller, or any of
its Affiliates, officers, directors, employees, agents, representatives or any
other Person, notwithstanding the delivery or disclosure to the Purchaser or any
of its officers, directors, employees, agents or representatives or any other
Person of any documentation or other information by the Seller or any of its
Affiliates, officers, directors, employees, agents, representatives or any other
Person.
Article VI
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller, as of the date
hereof:
6.1 Organization and Good Standing. The Purchaser is a [corporation]
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization.
6.2 Authorization. The Purchaser has full corporate power and
authority to execute and deliver each Transaction Document to which it is or
will be a signatory, and to perform fully its obligations thereunder. The
execution, delivery and performance by the Purchaser of this Agreement has been,
and each other Transaction Document to which it is or will be a signatory has
been or shall be, on or prior to the Closing Date, duly authorized by all
necessary corporate action on the part of the Purchaser. Each Transaction
Document (including this Agreement) dated on or before the date hereof and to
which the Purchaser is a party has been, and each other Transaction Document to
which the Purchaser is to be a party will be, duly executed and delivered by the
Purchaser, and (assuming the due authorization, execution and delivery by the
other parties thereto) each such Transaction Document (including this Agreement)
dated on or before the date hereof and to which the Purchaser is a party
constitutes, and each other Transaction Document to which the Purchaser is to be
a party, when so executed and delivered, will constitute, the legal, valid and
binding obligations of the Purchaser enforceable against the Purchaser in
accordance with its terms.
6.3 Conflicts; Consents. (a) Subject to receipt of the consents,
approvals and waivers set forth in Schedule 6.3, neither the execution and
delivery by the Purchaser of the Transaction Documents to which it is or will be
a party nor the consummation of the transactions contemplated thereby or the
compliance by the Purchaser with any of the provisions thereof will: (i)
conflict with, or result in the breach of, any provision of the certificate of
incorporation or by-laws or other organizational documents of the Purchaser; or
(ii) conflict with, violate, result in the breach or termination of, or
constitute a default or give rise to any right of termination or acceleration or
right to increase the obligations of or otherwise modify the terms under any
material lease or Contract to which the Purchaser or any of its Affiliates is a
party or by which it or any of its properties or assets is bound or subject.
(b) Other than the filing with the Federal Trade Commission and the
Antitrust Division of the Department of Justice of a premerger notification and
report form as required by the HSR Act, no consent, approval or authorization
of, permit from, or declaration, filing or registration with, any Governmental
Body is required to be made or obtained by the Purchaser or its Affiliates in
connection with the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby.
6.4 Litigation. There is no Legal Proceeding pending or, to the
knowledge of the Purchaser, threatened that questions the validity of any
Transaction Document, against the Purchaser or any of its Subsidiaries, or any
action taken or to be taken by the Purchaser in connection therewith, or which
seeks to enjoin the consummation of the transactions contemplated thereby, nor
is there any outstanding judgment, decree or injunction, against the Purchaser
or any of its Subsidiaries, or any statute, rule or order of any Governmental
Body applicable to the Purchaser or any of its Subsidiaries which has or would
reasonably be likely to have, individually or in the aggregate, a material
adverse effect on the Purchaser's ability to complete the transactions
contemplated herein or in any of the other Transaction Documents.
6.5 Brokers. Except for those Persons whose fees and expenses shall
be the sole responsibility of the Purchaser or an Affiliate thereof, no Person
has acted directly or indirectly as a broker, finder or financial advisor for
the Purchaser in connection with the negotiations relating to, or the
transactions contemplated by, the Transaction Documents and no Person is
entitled to any fee or commission or like payment in respect thereof based in
any way on any agreement, arrangement or understanding made by or on behalf of
the Purchaser.
6.6 Available Funds. The Purchaser has, and will have immediately
prior to the Closing, available to it all funds necessary to pay the Cash
Consideration, the Existing Indebtedness Repayment Amount and any purchase price
adjustment required pursuant to Section 3.3 hereof.
6.7 Acquisition of Shares. The Purchaser acknowledges that the
Shares have not been registered under the Securities Act of 1933, as amended, or
under any state securities laws and represents that the Shares are being
acquired by the Purchaser for its own account and not with a view to or in
connection with any disposition thereof in violation of the Securities Act of
1933, as amended, or the rules and regulations thereunder, or any applicable
state securities or "blue sky" laws.
6.8 Sophisticated Purchaser. The Purchaser is an informed and
sophisticated participant in the transactions contemplated hereby and has
undertaken such investigation, and has been provided with and has evaluated such
documents and information, as it has deemed necessary in connection with the
execution, delivery and performance of this Agreement.
6.9 Knowledge Regarding Representations; Satisfaction of Conditions.
As of the date of this Agreement, the Purchaser is not aware of any inaccuracy
or misstatement in, or breach of, any representation or warranty of the Seller
contained herein. The Purchaser is not, as of the date of this Agreement, aware
of any reason why the conditions set forth in Article X hereof would not be
satisfied on the Closing Date.
Article VII
COVENANTS OF THE SELLER AND THE PURCHASER
7.1 Access to Properties and Records. (a) After the date of this
Agreement, the Seller shall afford to representatives of the Purchaser
reasonable access, during normal business hours and consistent with Applicable
Laws, to the offices of the Company and its Subsidiaries and to their respective
properties, books and records; provided, however, that such access shall be at
reasonable times and upon reasonable prior written notice and shall not
unreasonably disrupt the personnel and operations of the Company and its
Subsidiaries. All requests for access to such offices, properties, books, and
records shall be made to such of the Seller's representatives as the Seller
shall designate, who shall be solely responsible for coordinating all such
requests and all access permitted hereunder.
(b) The Purchaser agrees to afford the Seller, its accountants and counsel,
during normal business hours, upon reasonable notice, reasonable access after
the Closing Date to the books, records, properties and employees of the Company
and its Subsidiaries to the extent that such access may be requested for any
legitimate purpose at no cost to the Seller (other than for reasonable
out-of-pocket expenses); provided, however, that nothing herein shall limit any
of the Seller's rights of discovery.
(c) The Purchaser agrees to hold all of the books and records of the
Company and its Subsidiaries existing on the Closing Date and not to destroy or
dispose of any thereof for a period of four (4) years from the Closing Date or
such longer time as may be required by Applicable Laws.
7.2 Conduct of Business. From the date of this Agreement through the
Closing, except as set forth in Schedule 7.2 or otherwise provided for in, or
contemplated by, this Agreement, and, except as consented to by the Purchaser
(which consent shall not be unreasonably withheld or delayed), the Seller shall,
and shall cause the Company and its Subsidiaries to:
(a) operate the business of the Company and its Subsidiaries in all
material respects in the ordinary and usual course of business;
(b) not amend the certificate of incorporation or by-laws of the Company or
any of its Subsidiaries;
(c) except in the ordinary and usual course of business, not (i) sell,
transfer or otherwise dispose of any of the material assets of the Company and
its Subsidiaries, or (ii) create any new Lien on the properties or assets of the
Company and its Subsidiaries;
(d) except to the extent required by the terms of employment or consulting
agreements as in effect on the date of this Agreement, not (i) increase the
compensation, pension, welfare or fringe benefits of any of the employees,
except for increases in the ordinary and usual course of business, (ii) enter
into any material new, or amend in any material respect any existing, severance
or change in control plan, or (iii) enter into any contracts of employment
involving annual base compensation in excess of U.S.$100,000 (other than
contracts terminable by the Purchaser without liability immediately following
the Closing);
(e) not make capital expenditures in the aggregate (including the value of
new equipment subject to lease as specified in clause (h) below) except as
contemplated by Schedule 5.5(c)(iii);
(f) except in connection with a lease pursuant to clause (h) below, not
incur any indebtedness for borrowed money, other than indebtedness incurred in
the ordinary course to be repaid at or prior to the Closing;
(g) except as provided in clause (h) below, not to incur any Indebtedness,
other than Indebtedness incurred in the ordinary course to be repaid at or prior
to the Closing or to be included in the calculation of Closing Date Working
Capital;
(h) not enter into any leases for new equipment (other than replacement
leases for previously leased equipment) except as contemplated by Schedule
5.5(c)(iii);
(i) except in the ordinary and usual course of business, not enter into any
joint venture, partnership or other similar arrangement or form any other new
material arrangement;
(j) not alter the outstanding capital stock of the Company or any of its
Subsidiaries or declare, set aside, make or pay any dividend or other
distribution in respect of such capital stock (in cash or otherwise), or
purchase or redeem any shares of such capital stock;
(k) not issue or sell any capital stock of the Company or any of its
Subsidiaries or options, warrants or other rights to purchase any such shares or
securities convertible into or exchangeable for such shares;
(l) except in the ordinary and usual course of business, not purchase any
securities of any Person;
(m) not make any change in the accounting procedures and practice of the
Company and its Subsidiaries unless mandated by GAAP; and
(n) not enter into any commitments to take any of the actions prohibited by
any of the foregoing clauses.
7.3 Existing Letters of Credit. The Purchaser agrees to replace on
the Closing Date the Existing Letters of Credit with new letters of credit and
to procure the surrender on the Closing Date of the Existing Letters of Credit
by the beneficiaries of such Existing Letters of Credit.
7.4 Efforts. Each of the parties agrees to use its reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
as promptly as practicable the transactions contemplated hereby and to cooperate
with the other parties in connection with the foregoing, including using its
reasonable best efforts (i) to the extent requested by the other party, to
obtain all necessary waivers, consents and approvals from other parties to
Contracts, (ii) to obtain all consents, approvals and authorizations that are
required to be obtained under any Applicable Law, including without limitation
the expiration of the waiting period under the HSR Act, (iii) to lift or rescind
any injunction or restraining order or other order adversely affecting the
ability of the parties hereto to consummate the transactions contemplated
hereby, (iv) to effect all registrations and filings, if any, necessary to
consummate the transactions contemplated hereby, and (v) to fulfill all
conditions to this Agreement (including, without limitation, those conditions
set forth in Sections 10.2 and 10.3 below). The Seller and the Purchaser further
covenant and agree, with respect to any threatened or pending preliminary or
permanent injunction or other order, decree or ruling or statute, rule,
regulation or executive order that would adversely affect the ability of the
parties hereto to consummate the transactions contemplated hereby, to use their
respective reasonable best efforts to prevent the entry, enactment or
promulgation thereof, as the case may be. 7.5 Antitrust Approval. Without
limiting Section 7.4, the Purchaser and the Seller shall make their respective
commercial best efforts to avoid or eliminate each and every impediment under
any antitrust, competition or trade regulation law that may be asserted by any
Governmental Body with respect to the Transactions so as to enable the Closing
to occur as soon as reasonably possible (and in any event no later than July 31,
2002) including, without limitation, proposing, negotiating, committing to and
effecting, by consent decree, hold separate order, or otherwise, the sale,
divestiture or disposition or such assets or businesses of the Purchaser or any
of its Subsidiaries or otherwise take or commit to take any actions that limits
its freedom of action with respect to, or its ability to retain, any of the
businesses, product lines or assets of the Purchaser or its Subsidiaries as may
be required in order to avoid entry of, or to effect the dissolution of, any
injunction, temporary restraining order, or other order in any suit or
proceeding, which would otherwise have the effect of preventing or delaying the
Closing.
7.5 Antitrust Approval. Without limiting Section 7.4, the Purchaser and the
Seller shall make their respective commercial best efforts to avoid or eliminate
each and every impediment under any antitrust, competition or trade regulation
law that may be asserted by any Governmental Body with respect to the
Transactions so as to enable the Closing to occur as soon as reasonably possible
(and in any event no later than July 31, 2002) including, without limitation,
proposing, negotiating, committing to and effecting, by consent decree, hold
separate order, or otherwise, the sale, divestiture or disposition or such
assets or businesses of the Purchaser or any of its Subsidiaries or otherwise
take or commit to take any actions that limits its freedom of action with
respect to, or its ability to retain, any of the businesses, product lines or
assets of the Purchaser or its Subsidiaries as may be required in order to avoid
entry of, or to effect the dissolution of, any injunction, temporary restraining
order, or other order in any suit or proceeding, which would otherwise have the
effect of preventing or delaying the Closing.
7.6 Confidentiality.
(a) Confidential Information. Each party and its Affiliates shall use
commercially reasonable efforts to maintain the other party's, and the other
party's Affiliates', proprietary and confidential information (the "Confidential
Information") in confidence. Confidential Information does not include
information that: (i) is available, or becomes available, to the general public
without fault of the receiving party; (ii) was in the possession of the
receiving party on a non-confidential basis prior to receipt of the same from
the disclosing party; (iii) is lawfully obtained by the receiving party without
a breach of this Agreement or an obligation of confidence from a third party who
is rightfully in possession of such Confidential Information and is under no
obligation of confidentiality to the disclosing party; (iv) is independently
developed by the receiving party; or (v) was approved in writing for disclosure
by the disclosing party.
(b) Non-Use. Each party shall use the other's Confidential Information
solely for the purposes of fulfilling its obligations under the Transaction
Documents. Notwithstanding this Section 7.6(b), if the receiving party becomes
legally compelled to disclose any of the disclosing party's Confidential
Information, the receiving party shall promptly advise the disclosing party of
such legal requirement to disclose Confidential Information in order that the
disclosing party may have an opportunity to seek a protective order or such
other remedy as the disclosing party may consider appropriate in the
circumstances. The receiving party shall disclose only that portion of the
disclosing party's Confidential Information that it is legally required to
disclose.
(c) Services by Third Parties. Notwithstanding Sections 7.6(a) and (b),
the receiving party shall have a right to disclose the disclosing party's
Confidential Information to third parties to the extent reasonably necessary for
the receiving party to accomplish its responsibilities contemplated hereunder;
provided, however, that such disclosure to third parties shall be made under
confidentiality terms and conditions deemed by the disclosing party to be
reasonable.
(d) Return of Confidential Information. Upon written request by the
disclosing party, all Confidential Information in whatever form shall be
returned to the disclosing party upon termination of this Agreement, without
retaining copies thereof except that one copy of all such Confidential
Information may be retained by the other party solely for the purpose of
ensuring compliance with the confidentiality obligations in this Agreement.
(e) Survival. The obligations of confidentiality under this Section 7.6
will survive for five (5) years following the termination of this Agreement.
(f) Confidentiality Agreement. Any provision in the Confidentiality
Agreement which is inconsistent with any term or condition of this Agreement
shall be deemed to be of no other force or effect upon the execution of this
Agreement and in the event of any conflict between the terms of this Agreement
and the Confidentiality Agreement, the term or provision contained herein shall
control. In the event of the termination of this Agreement, the Confidentiality
Agreement shall remain in full force and effect.
7.7 Further Assurances. The Purchaser and the Seller agree to
execute and deliver such instruments, and take such other actions, as may
reasonably be required to (i) carry out the terms of the Transaction Documents
and (ii) consummate the transactions contemplated thereby.
Article VIII
TAX MATTERS
8.1 Transfer Tax. The Seller shall pay directly, or reimburse the
Purchaser promptly upon demand and delivery of proof of payment, all excise,
sales, transfer, documentary, filing, recordation and other similar taxes,
levies, fees and charges, if any (including all real estate transfer taxes and
conveyance and recording fees, if any), that may be imposed upon, or payable or
collectible or incurred in connection with, the Transaction Documents and the
transactions contemplated thereby.
8.2 Tax Returns. (a) The Seller shall be responsible for the timely
filing (taking into account any extensions received from the relevant tax
authorities) of all Tax Returns required by law to be filed by the Company or
any of its Subsidiaries on or prior to the Closing Date.
(b) The Purchaser shall be responsible for the timely filing (taking into
account any extensions received from the relevant tax authorities) of all Tax
Returns required by law to be filed by the Company or any of its Subsidiaries
after the Closing Date.
8.3 Cooperation. After the Closing, the Purchaser, the Company, its
Subsidiaries and the Seller will make available to each other, as reasonably
requested, and to any taxing authority, all information, records or documents
relating to Taxes or potential liability of the Company or any of its
Subsidiaries for Taxes for all periods prior to or including the Closing Date
and will preserve such information, records or documents until the expiration of
any applicable statute of limitations or extensions thereof.
Article IX
PERSONNEL, EMPLOYMENT ARRANGEMENTS AND EMPLOYEES BENEFITS
9.1 Employee Contracts. As of the Closing Date, the Purchaser shall,
or shall cause the Company and the applicable Subsidiaries of the Company to, be
bound by and to honor, pay and perform all of the liabilities and obligations of
the Seller, the Company and its Subsidiaries under the provisions of each
written employment agreement, compensation agreement, retirement agreement,
severance or termination agreement, change in control agreement, retention
agreement and similar agreement between or among any individual and the Seller,
the Company or any of the Company's Subsidiaries in accordance with the
provisions thereof as in effect on the date hereof or as amended prior to the
Closing in accordance with Section 7.2 of this Agreement.
9.2 Employee Indemnity. Notwithstanding anything in this Agreement
to the contrary, the Purchaser hereby agrees to indemnify the Seller and its
Affiliates against and to hold the Seller and its Affiliates harmless from, and
to pay or reimburse the Seller and its Affiliates for, any and all liabilities
or obligations arising out of, relating to or otherwise in respect of any
employee or former employee of the Company or any its Subsidiaries.
Article X
CONDITIONS PRECEDENT TO OBLIGATIONS TO CLOSE AT CLOSING
10.1 Conditions to Obligation of Each Party to Close. The respective
obligations of each party to effect the Transactions shall be subject to the
satisfaction or waiver at or prior to the Closing Date of the following
conditions:
(a) no preliminary or permanent injunction or other Order of any
Governmental Body shall have become effective restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any Transactions
contemplated by any Transaction Document;
(b) the Seller shall have obtained a waiver from the Lenders permitting the
discharge of the Existing Liens, the release of the Existing Guarantees and the
satisfaction and discharge of the Existing Indebtedness, on terms satisfactory
to the Seller, upon the Purchaser's repayment on behalf of the Company of the
Existing Indebtedness Repayment Amount and the replacement of the Existing
Letters of Credit contemplated by Section 7.3; and
(c) all material consents, approvals and authorizations required to be
obtained under any Applicable Laws relating to the Transactions shall have been
obtained and all required filings, if any, under any Applicable Laws, including
the HSR Act, shall have been made and any required waiting period under such
laws applicable to the transactions contemplated by this Agreement shall have
expired or been earlier terminated.
10.2 Conditions to the Purchaser's Obligation to Close. The
Purchaser's obligation to effect the Transactions shall be subject to the
satisfaction or waiver on or prior to the Closing Date of all of the following
conditions:
(a) each of the representations and warranties of the Seller contained in
this Agreement shall be true and correct, as of the Closing Date, as though made
on and as of the Closing Date, except where the failure to be so true and
correct would not, individually or in the aggregate, have or be reasonably
likely to have a Material Adverse Effect;
(b) the covenants and agreements of the Seller to be performed on or before
the Closing Date in accordance with this Agreement shall have been duly
performed in all material respects;
(c) the Seller shall have delivered to the Purchaser certificates for all
of the Shares, duly endorsed for transfer or accompanied by duly executed stock
powers or stock transfer forms;
(d) no damage or destruction or other change has occurred with respect to
any of the Real Property or any portion thereof that, individually or in the
aggregate, would have a Material Adverse Effect;
(e) the Purchaser shall have received the resignations, effective as of the
Closing, of each director of the Company and its Subsidiaries other than those
whom the Purchaser shall have specified in writing at least five Business Days
prior to the Closing;
(f) the Seller shall have delivered the Trademark Agreement and the
Non-Competition Agreement;
(g) the Seller shall have caused ▇▇▇▇▇▇▇ Hygiene Products to have executed
and delivered the Sanis Supply Agreement;
(h) the conditions relating to the Transactions specified in Section 10.1
and this Section 10.2 shall have been satisfied, and the Purchaser shall have
received a certificate dated the Closing Date and validly executed on behalf of
the Seller certifying as to the matters specified in Section 10.2(a) and
10.2(b); and
(i) the Phase II Environmental Assessment described in Schedule 10.2(i)
hereto shall have been completed and the sum of (i) $5,000,000 plus (ii) the
Present Value of the Seller's Portion of the Environmental Liability Estimate
shall not exceed $50,000,000.
10.3 Conditions to the Seller's Obligation to Close. The Seller's
obligation to effect the Transactions shall be subject to the satisfaction or
waiver on or prior to the Closing Date of all of the following conditions:
(a) each of the representations and warranties of the Purchaser contained
in this Agreement shall be true and correct, as of the Closing Date, as though
made on and as of the Closing Date, except where the failure to be so true and
correct would not, individually or in the aggregate, have or be reasonably
likely to have a material adverse effect;
(b) the covenants and agreements of the Purchaser to be performed on or
before the Closing Date in accordance with this Agreement shall have been duly
performed in all material respects;
(c) the Seller shall have received the wire transfer of immediately
available U.S. dollar funds in the amount of the Cash Consideration;
(d) the Purchaser shall have replaced the Existing Letters of Credit and,
as a result, the Existing Letters of Credit shall have been surrendered by the
beneficiaries thereof;
(e) the Purchaser shall have repaid on behalf of the Company the Existing
Indebtedness Repayment Amount to the Lenders and, as a result, the Existing
Indebtedness shall have been fully satisfied, the Existing Guarantees shall have
been fully released and the Existing Liens shall have been fully discharged;
(f) the Purchaser shall have executed and delivered the Trademark
Agreement;
(g) the conditions relating to the Transactions specified in Section 10.1
and this Section 10.3 shall have been satisfied, and the Seller shall have
received a certificate dated the Closing Date and validly executed on behalf of
the Purchaser certifying as to the matters specified in Section 10.3(a) and
10.3(b); and
(h) the Phase II Environmental Assessment described in Schedule 10.2(i)
hereto shall have been completed and the sum of (i) $5,000,000 plus (ii) the
Present Value of the Seller's Portion of the Environmental Liability Estimate
shall not exceed $50,000,000.
Article XI
TERMINATION
11.1 Termination. This Agreement may be terminated before the
Closing Date only, and then only by any of the following:
(a) by the written agreement of the Purchaser and the Seller;
(b) at the election of the Purchaser if any condition set forth in Sections
10.1 and 10.2 becomes incapable of fulfillment and is not waived by the
Purchaser, provided, however that any such condition relating to a breach or a
failure to perform a representation, warranty, covenant or other agreement prior
to the Closing Date shall be a cause for termination of this Agreement only if
such breach or failure cannot be or has not been cured within thirty (30) days
after the giving of written notice of such breach or failure to the Seller, such
notice to be given promptly after the Purchaser becomes aware of such breach of
failure;
(c) at the election of the Seller if any condition set forth in Sections
10.1 and 10.3 becomes incapable of fulfillment and is not waived by the Seller,
provided, however that any such condition relating to a breach or a failure to
perform a representation, warranty, covenant or other agreement prior to the
Closing Date shall be a cause for termination of this Agreement only if such
breach or failure cannot be or has not been cured within thirty (30) days after
the giving of written notice of such breach or failure to the Purchaser, such
notice to be given promptly after the Seller become aware of such breach of
failure;
(d) at the election of the Seller or the Purchaser, if the Closing shall
have not occurred by July 31, 2002 (other than as a result of a breach of this
Agreement by the party seeking termination).
11.2 Liabilities After Termination. (a) Upon termination of this
Agreement pursuant to Section 11.1, no party shall thereafter have any further
liability or obligation hereunder; provided, however, that, subject to clauses
(b) and (c) below, such termination shall not relieve any party of any liability
for any breach of this Agreement prior to the date of such termination.
(b) In the event that the Purchaser elects to terminate this Agreement
pursuant to Section 11.1(b) hereof as a result of a breach of one or more
representations or warranties of the Seller set forth in Article V, the Seller
and Purchaser agree that the Purchaser shall have suffered damages in the amount
of $7,000,000 and the Seller shall pay such amount to the Purchaser, as
liquidated damages and not as a penalty. Such amount of liquidated damages shall
be the sole and exclusive remedy of the Purchaser for any claim relating to this
Agreement resulting from such breach.
(c) In the event that the Seller elects to terminate this Agreement
pursuant to Section 11.1(c) hereof as a result of a breach of one or more
representations or warranties of the Purchaser as set forth in Article VI (other
than for a breach of the representation and warranty set forth in Section 6.6),
the Seller and Purchaser agree that the Seller shall have suffered damages in
the amount of $7,000,000 and the Purchaser shall pay such amount to the Seller,
as liquidated damages and not as a penalty. Such amount of liquidated damages
shall be the sole and exclusive remedy of the Seller for any claim relating to
this Agreement resulting from such breach. In the case of a breach of the
representation and warranty set forth in Section 6.6 such limitation shall not
apply.
Article XII
MISCELLANEOUS
12.1 No Survival of Representations, Warranties and Covenants. None
of the representations, warranties, covenants and agreements contained in this
Agreement or in any other documents or instrument delivered in connection with
this Agreement will survive the Closing, except that indemnification shall be
available to the parties with respect to fraud, effective until the applicable
statute of limitations period expires; provided, however, that this Section 12.1
will not limit any covenant or agreement of the parties which by its terms
contemplates performance after the Closing. In the event that the Closing
occurs, except in the case of fraud as set forth in the preceding sentence
neither the Seller nor the Purchaser shall have any claim for breach of any
representation or warranty or breach of any covenant to be performed on or prior
to the Closing.
12.2 Entire Agreement. This Agreement, together with the other
Transaction Documents, constitutes the entire agreement and supersedes all prior
written and oral agreements among the parties hereto and their respective
Affiliates with respect to the subject matter hereof; provided, that the
Confidentiality Agreement shall survive the execution and delivery of this
Agreement until the occurrence of the Closing.
12.3 Governing Law. This Agreement shall be construed and enforced
in accordance with, and shall be governed by, the laws of the State of Delaware
without regard to conflicts of law provisions.
12.4 Jurisdiction and Forum; Waiver of Jury Trial. (a) Each party
hereto irrevocably submits to the jurisdiction of any New York state court or
any federal court in the Southern District of New York in any Legal Proceeding
arising out of or relating to this Agreement or any other Transaction Document,
and hereby irrevocably agrees that all claims in respect of such action may be
heard and determined in such New York state or federal court in the Southern
District of New York. Each party hereto hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum to
the maintenance of such action or proceeding. The parties further agree, to the
extent permitted by law, that final and unappealable judgment against any of
them in any action or proceeding contemplated above shall be conclusive and may
be enforced in any other jurisdiction within or outside the United States by
suit on the judgment, a certified copy of which shall be conclusive evidence of
the fact and amount of such judgment.
(b) Each party hereto waives, to the fullest extent permitted by law, any
right it may have to a trial by jury in respect of any Legal Proceeding arising
out of or relating to this Agreement or any other Transaction Documents. Each
party hereto certifies that it has been induced to enter into this Agreement and
the other Transaction Documents by, among other things, the mutual waivers and
certifications set forth above in this Section 12.4.
12.5 Severability. In the event that any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby so long as the remaining provisions do not fundamentally alter
the relations among the parties hereto.
12.6 Expenses. Subject to Section 3.3, each of the parties hereto
shall bear its own expenses and the Seller the expenses of the Company's
advisors (including, without limitation, fees and disbursements of its counsel,
accountants and other experts) incurred by it in connection with the
preparation, negotiation, execution, delivery and performance of this Agreement
and the other Transaction Documents and the consummation of the transactions
contemplated hereby and thereby.
12.7 Table of Contents and Headings. The table of contents and
section headings of this Agreement are for reference purposes only and are to be
given no effect in the construction or interpretation of this Agreement.
12.8 Schedules. Any information contained in this agreement, on any
schedule or exhibit attached to this agreement, or in any other Transaction
Document or schedule or exhibit attached thereto, shall be deemed to be
constructively cross-referenced herein and listed on all exhibits and schedules
to the extent applicable thereto.
12.9 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given to a party at the following address (or to such other address as such
party may have specified by notice given to the other parties pursuant to this
provision):
If to the Seller to:
Filuxel SA
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
With a required copy (which shall not constitute notice) to:
BC Partners
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇-▇-▇▇▇▇-▇▇▇▇
With a required copy (which shall not constitute notice) to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Purchaser to:
Cintas Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a required copy (which shall not constitute notice) to:
Cintas Corporation
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a required copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.L.L.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, requests and other communications shall be
deemed received on the day of receipt by the recipient thereof if received prior
to 5:00 p.m. in the place of receipt and such day is a business day in the place
of receipt; otherwise, such notices, requests or communications shall be deemed
to have been received on the next succeeding business day in the place of
receipt.
12.10 Binding Effect; Beneficiaries; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. Nothing in this Agreement shall
create or be deemed to create any third party beneficiary rights in any Person
not party to this Agreement other than the Seller and other than as set forth in
Article IX. No party may transfer any of its rights or obligations hereunder
without the express written consent of each other party hereto, and any such
attempted transfer in violation of this Section 12.10 shall be null and void.
Notwithstanding the foregoing, the Seller or the Purchaser may each assign their
rights or delegate the performance of its obligations hereunder to any of its
Subsidiaries, provided that the Seller or the Purchaser, as the case may be,
shall remain fully liable for the performance of its obligations hereunder.
12.11 No Personal Liability. The parties hereto acknowledge and
agree that no individual, including without limitation any officer, director,
employee, agent or representative of the parties or their respective Affiliates,
shall incur any personal liability for any breach of the representations,
warranties or covenants contained in this Agreement or in any other Transaction
Document.
12.12 Amendments. This Agreement may be amended, supplemented or
modified, and any provision hereof may be waived, only pursuant to a written
instrument making specific reference to this Agreement signed by each of the
parties hereto.
12.13 Waiver. No failure or delay by any party in exercising any
right, power or privilege hereunder 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.
12.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.15 Language. Although the parties may translate this Agreement
into different languages, the governing version shall be the English language
version.
12.16 No Presumption. This Agreement shall be construed without
regard to any presumption or rule requiring construction or interpretation
against the party drafting or causing any instrument to be drafted.
(Remainder of page intentionally blank; signature page follows)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CINTAS CORPORATION
By:
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Name:
Title:
FILUXEL SA
By:
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Name:
Title: