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EXHIBIT 2
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PURCHASE AGREEMENT
between
THE ▇▇▇▇▇▇-▇▇▇▇▇ CORPORATION
and
EG&G, INC
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Dated as of March 8, 1999
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TABLE OF CONTENTS
Page
1. Sale and Transfer of Subsidiary Stock; Purchase and Sale of Assets;
Assumption of Liabilities .............................................. 2
1.1 Sale and Transfer of Subsidiary Stock .................................. 2
1.2 Transfer of Assets ..................................................... 2
1.3 Excluded Assets......................................................... 5
1.4 Instruments of Conveyance and Transfer ................................. 6
1.5 Further Assurances ..................................................... 6
1.6 Assumed Liabilities .................................................... 6
1.7 Excluded Liabilities ................................................... 7
2 Closing; Payment of Purchase Price at Closing .......................... 9
2.1 Closing Date ........................................................... 9
2.2 Closing Deliveries by Seller ........................................... 9
2.3 Closing Deliveries by Buyer ............................................ 10
2.4 Purchase Price Allocation .............................................. 10
2.5 Restricted Assets ...................................................... 11
2.6 Post-Closing Adjustment ................................................ 14
3 Representations and Warranties ......................................... 16
3.1 Representations and Warranties of Seller ............................... 16
3.2 Representations and Warranties of Buyer ................................ 37
3.3 Expiration of Representations and Warranties ........................... 39
4 Transactions Prior to Closing .......................................... 39
4.1 Access to Information Concerning Properties and Records;
Confidentiality ........................................................ 39
4.2 Conduct of the Analytical Instruments Business Pending the
Closing Date ........................................................... 40
4.3 Transactions with Transferred Subsidiaries ............................. 42
4.4 Guarantees ............................................................. 43
4.5 Further Actions ........................................................ 43
4.6 Notification ........................................................... 43
4.7 No Inconsistent Action ................................................. 44
4.8 License Agreements ..................................................... 44
4.9 Facilities and Services Agreement ...................................... 45
4.10 No Solicitation ........................................................ 45
5 Conditions Precedent ................................................... 45
5.1 Conditions Precedent to Obligations of Buyer and Seller ................ 45
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5.2 Conditions Precedent to Obligations of Buyer ........................... 46
5.3 Conditions Precedent to the Obligations of Seller ...................... 47
6 Employee Relations and Benefits ........................................ 48
6.1 Pre-Closing Conduct; Other Liabilities ................................. 48
7 Termination ............................................................ 51
7.1 General ................................................................ 52
7.2 Obligations in Event of Termination .................................... 52
8 Transactions and Activities Subsequent to Closing ...................... 52
8.1 Access to Books and Records; Confidentiality ........................... 52
8.2 Further Agreements ..................................................... 53
8.3 Asset Returns .......................................................... 54
8.4 Certain Tax Matters .................................................... 54
8.5 Non-Solicitation of Employees .......................................... 55
8.6 Non-Competition ........................................................ 56
9 Miscellaneous .......................................................... 57
9.1 Public Announcements ................................................... 57
9.2 Expenses ............................................................... 57
9.3 Transfer Taxes and Recording Expenses .................................. 57
9.4 Indemnification ........................................................ 57
9.5 Environmental Remediations ............................................. 61
9.6 Pre-Closing Litigation ................................................. 62
9.7 Notices ................................................................ 62
9.8 Entire Agreement ....................................................... 63
9.9 Binding Effect; Benefit ................................................ 63
9.10 Bulk Sales Law ......................................................... 63
9.11 Assignability .......................................................... 63
9.12 Amendment; Waiver ...................................................... 63
9.13 Schedules and Exhibits ................................................. 64
9.14 Other Covenants ........................................................ 64
9.15 Section Headings; Table of Contents .................................... 64
9.16 Severability ........................................................... 64
9.17 Counterparts ........................................................... 64
9.18 Governing Law; Jurisdiction and Service of Process ..................... 65
9.19 No Third Party Beneficiaries ........................................... 65
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LIST OF SCHEDULES AND EXHIBITS TO AGREEMENT
SELLER SCHEDULE
Section 1.2(a) - Intellectual Property assets to be sold
Section 1.2(b) - Real property and leasehold interests to be sold
Section 1.2(e) - Management information system assets to be sold
Section 1.2(g)(i) - Contracts not to be assigned to Buyer
Section 1.2(g)(ii) - Contracts to be assigned to Buyer
Section 1.2(h) - Licenses, permits or franchises not to be assigned to
Buyer
Section 1.3(h) - Real property and improvements not to be sold to Buyer
Section 1.3(k) - Intercompany receivables, notes or loans not to be
assigned to Buyer
Section 1.7(e) - Intercompany receivables, notes or loans not to be
assumed by Buyer
Section 2.4 - Purchase Price Allocation
Section 3.1(a) - Subsidiaries, Subsidiaries' outstanding capital stock
and the number of shares owned beneficially and of
record by the applicable seller
Section 3.1(c) - Government approvals or notices required, and other
party conflicts
Section 3.1(d) - Nominee shares
Section 3.1(f) - Permitted encumbrances
Section 3.1(g) - Financial information
Section 3.1(h) - No undisclosed liabilities
Section 3.1(i) - Absence of certain changes
Section 3.1(j) - Legal proceedings
Section 3.1(k) - Regulatory matters
Section 3.1(l) - Labor controversies
Section 3.1(n)(iii) - Intellectual Property
Section 3.1(n)(iv) - Intellectual Property
Section 3.1(o) - Exceptions to possession of required government
licenses, permits and approvals
Section 3.1(p) - Employee benefit and business plans and related
information
Section 3.1(q) - Environmental Laws and related legal proceedings
Section 3.1(r)(ii) - Tax
Section 3.1(s)(i) - Material Contracts
Section 3.1(s)(iii) - Breach of Material Contracts
Section 3.1(t) - Recall
Section 3.1(u) - Affiliate Relationships
Section 3.1(w) - Customers and Suppliers
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Section 3.1(x) - Year 2000
Section 3.1(y) - Acquisitions
Section 3.1(aa) - Real Estate
Section 4.2 - Planned exceptions to ordinary course of operation
prior to Closing
Section 4.3(a) - Assets and liabilities of Transferred Subsidiaries to
be assumed by Seller or Seller's Subsidiaries
Section 4.4 - Guarantees, etc. to be assumed by Buyer
Section 4.8(a) - Intellectual Property to be licensed to Buyer
Section 4.8(b) - Intellectual Property to be licensed to Seller
Section 4.9 - Facilities and Services
Section 5.2(d) - No Material Adverse Change
Section 6.1(a)(i) - Seller's Severance Plan
Section 6.1(a)(ii) - Excluded Severance Liabilities
Section 6.1(c) - Asset Employees
Section 8.6(a) - Products not to be sold by Seller after Closing Date
Section 8.6(b) - Excluded Fields
Section 8.6(c) - Additional Excluded Fields for other than Life Sciences
Section 9.6 - Pre-Closing Litigation
BUYER SCHEDULE
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EXHIBITS
EXHIBIT A - Subsidiaries
EXHIBIT B - Locations of Operations
EXHIBIT C - Transferred Subsidiaries
EXHIBIT D - Subsidiary Asset Sellers
EXHIBIT E - Terms of Note
EXHIBIT F - Form of Buyer License Agreement
EXHIBIT G - Form of Seller License Agreement
EXHIBIT H - Form of Transition Agreement
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GLOSSARY OF TERMS
Defined Term Section
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Accounting Firm 2.6(b)
Accounts Receivable 1.2(j)
Action 3.1(j)(i)
Actively at Work 6.1(c)
Adjusted Closing Net Assets 2.6(b)
Affiliate 3.1(u)
Agreement Preamble
Allocation Schedule 2.4
Analytical Instruments Business Recitals
Analytical Instruments Products 8.6
Asset Employees 6.1(c)
Asset Purchase Recitals
Asset Sellers Recitals
Assets Recitals
Assumed Liabilities 1.6
Assumption Agreement 1.6
Benefit Plans 3.1(p)(i)
BSW 2.6(e)
Business Day 2.5(c)
Buyer Preamble
Buyer License Agreement 4.8(a)
Buyer Plans 6.1(c)(ii)
Buyer Schedule 3.2
Buyer's Objection 2.6(b)
Cash Purchase Price 2.3(a)
CERCLA 3.1(q)(i)
Claim Notice 9.4(c)
Closing 2.1
Closing Balance Sheet 2.6(a)
Closing Date 2.1
Closing Net Assets 2.6(a)
Code 2.4
Company Recitals
Confidentiality Agreement 4.1(a)
Continuing Employee 6.1(a)
Contracts 1.2(g)
Covered Period 3.1(s)(ii)
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Damages 9.4(a)
Encumbrances 3.1(f)
Environmental Law 3.1(q)(i)
Environmental Remediation 9.5(a)
Equipment 1.2(c)
ERISA 3.1(p)(i)
ERISA Affiliate 3.1(p)(i)
Excluded Asset 1.3
Excluded Fields 8.6
Excluded Liabilities 1.7
External Software 3.1(x)(i)
Final Adjustment Amount 2.6(b)
Financial Information 3.1(g)
Finished Goods 1.2(d)
Foreign Seller Plan 3.1(p)(ix)
Governmental Authority 3.1(j)(i)
Guarantees 4.4
HSR Act 3.1(c)
Indebtedness 1.7(b)
Indemnified Party 9.4(c)
Indemnifying Party 9.4(c)
Indemnity Claim 9.4(e)
Intellectual Property 1.2(a)
Interest Rate 2.6(d)
Internal Systems 3.1(x)(i)
Inventory 1.2(d)
Leased Real Property 3.1(aa)(i)
License Agreements 4.8(b)
Life Sciences 8.6
Material Adverse Closing Event 7.1
Material AI Contracts 3.1(s)(i)
Material Contract 3.1(s)(ii)
Material Permits 3.1(o)(i)
Materials 1.2(d)
Materials of Environmental Concern 3.1(q)(i)
Multiemployer Plan 3.1(p)(v)
Net Assets 2.6(a)
Nominee Shares 3.1(d)(ii)
Note 2.3(a)
Notice Period 9.4(c)
Ordinary Course of Business 1.3(k)
Owned Real Property 3.1(aa)(i)
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PE Group 2.5(a)
PEH 2.6(e)
▇▇▇▇▇▇-▇▇▇▇▇ Asset Purchase Recitals
▇▇▇▇▇▇-▇▇▇▇▇ Assets Recitals
Permitted Encumbrances 3.1(f)
Person 3.1(d)(iv)
Plant or Plants 1.2(b)
Pre-closing Litigation 9.6(a)
Preliminary Adjustment Amount 2.6(a)
Prepaid Assets 1.2(k)
Purchase Price 2.3(a)
Representatives 4.1(a)
Required Consents 5.1(b)
Restricted Assets 2.5(f)
Seller 401(k) Plan 6.1(b)
Seller Preamble
Seller Benefit Plans 3.1(p)(i)
Seller Plan 6.1(b)
Seller Schedule 1.2(a)
Seller License Agreement 4.8(b)
Seller Material Adverse Effect 3.1
Seller Representation Adverse Effect 3.1
Seller's Severance Plan 6.1(a)
Shared Contracts 2.5(g)
Shared Litigation 9.6(b)
Shared Remediations 9.5(b)
Stock and Asset Purchase Recitals
Stock Purchase Recitals
Subsidiaries Recitals
Subsidiaries Asset Purchase Recitals
Subsidiary Asset Sellers Recitals
Subsidiary Assets Recitals
Subsidiary Cash Amount 2.6(a)
Subsidiary Debt Amount 2.6(a)
Subsidiary Statement 2.6(a)
Subsidiary Tax Accrual 2.6(a)
Subsidiary Stock Recitals
Tax or Taxes 3.1(r)(iii)
Tax Benefit 9.4(e)
Tax Item 8.4(a)
Tax Returns 3.1(r)(iii)
Transfer Laws 6.1(c)(iii)
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Transferred Employees 6.1(c)
Transferred Subsidiaries Recitals
Transition Agreements 4.9
U.K. Pension Plan 6.1(d)(iv)
U.S. GAAP 3.1(g)
WDR 3.1(z)
Year 2000 Compliant 3.1(x)(iv)
Year 2000 Program 3.1(x)(i)
1060 Forms 2.4
1998 Financial Statements 3.1(g)
1998 Statement of Net Assets 3.1(g)
1999 Financial Statements 3.1(g)
1999 Statement of Net Assets 3.1(g)
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PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "AGREEMENT"), dated as of March 8,
1999, between THE ▇▇▇▇▇▇-▇▇▇▇▇ CORPORATION, a New York corporation ("SELLER"),
and EG&G, INC., a Massachusetts corporation ("BUYER").
W I T N E S S E T H :
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WHEREAS, Seller and Seller's subsidiaries (including
subsidiaries not otherwise engaged in the Analytical Instruments Business, as
defined below, that own capital stock of any Transferred Subsidiaries, as
defined below) listed on EXHIBIT A (the "SUBSIDIARIES" and, collectively with
Seller, the "COMPANY") are engaged, in part, in the business of development,
production, marketing, distribution, sale and servicing of analytical
instruments (including without limitation the Analytical Instruments Products),
software, services and consumables in various areas throughout the world (the
"ANALYTICAL INSTRUMENTS BUSINESS"), operating currently from the locations
specified in EXHIBIT B; and
WHEREAS, Buyer desires to purchase from Seller and Seller
desires to sell to Buyer the assets (other than assets expressly excluded
pursuant to Section 1.3 hereof), subject to the assumption of certain
liabilities as set forth in Section 1.6 hereof, of the Analytical Instruments
Business held by Seller (the "▇▇▇▇▇▇-▇▇▇▇▇ ASSETS") upon the terms and subject
to the conditions set forth herein (the "▇▇▇▇▇▇-▇▇▇▇▇ ASSET PURCHASE"); and
WHEREAS, Buyer desires to purchase from Seller and certain of
the Subsidiaries, and Seller desires to sell, and to cause certain of the
Subsidiaries to sell, to Buyer, all of the outstanding shares of capital stock
(collectively, the "SUBSIDIARY STOCK") of the Subsidiaries listed on EXHIBIT C
(the "TRANSFERRED SUBSIDIARIES") (the sale and purchase of the Subsidiary Stock
being referred to herein as the "STOCK PURCHASE") upon the terms and subject to
the conditions set forth herein; and
WHEREAS, Buyer desires to purchase from the Subsidiaries
listed on EXHIBIT D (such Subsidiaries, the "SUBSIDIARY ASSET SELLERS", and
together with Seller, the "ASSET SELLERS"), and Seller desires to cause such
Subsidiary Asset Sellers to sell to Buyer, the assets of the Analytical
Instruments Business held by the Subsidiaries other than the Transferred
Subsidiaries (other than the assets expressly excluded pursuant to Section 1.3
hereof), subject to the assumption of certain liabilities as set forth in
Section 1.6 hereof (such assets, the "SUBSIDIARY ASSETS", and together with the
▇▇▇▇▇▇-▇▇▇▇▇ Assets, the "ASSETS"; such purchase, the "SUBSIDIARIES ASSET
PURCHASE", and together with the ▇▇▇▇▇▇-▇▇▇▇▇ Asset Purchase, the "ASSET
PURCHASE"; the Stock Purchase and the Asset Purchase are collectively referred
to herein as the "STOCK AND ASSET PURCHASE"), upon the terms and subject to the
conditions set forth herein.
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NOW, THEREFORE, in consideration of the premises and of the
mutual covenants of the parties hereto, it is hereby agreed as follows:
1. SALE AND TRANSFER OF SUBSIDIARY STOCK; PURCHASE AND SALE OF ASSETS;
ASSUMPTION OF LIABILITIES
1.1. SALE AND TRANSFER OF SUBSIDIARY STOCK. On the basis of
the representations, warranties, covenants and agreements and subject to the
satisfaction or waiver of the conditions set forth in this Agreement, and
further subject to the qualifications and limitations herein provided, at the
Closing, Seller shall sell, transfer, convey, assign and deliver to Buyer, or,
in the case of Subsidiary Stock held by a Subsidiary, cause to be sold,
transferred, assigned and delivered to Buyer, all outstanding shares of capital
stock of the Transferred Subsidiaries. At the Closing, Seller shall deliver or
cause to be delivered to Buyer certificates representing the Subsidiary Stock,
duly endorsed, or accompanied by stock powers duly executed, with all necessary
stock transfer stamps attached thereto, or such other assignments, deeds, share
transfer forms, endorsements, notarial deeds of transfer or other instruments or
documents, duly stamped where necessary, as are required by the jurisdiction of
organization of each Transferred Subsidiary.
1.2. TRANSFER OF ASSETS. On the basis of the representations,
warranties, covenants and agreements and subject to the satisfaction or waiver
of the conditions set forth in this Agreement, and further subject to the
qualifications and limitations herein provided, at the Closing, Seller shall
sell, convey, assign, transfer and deliver to Buyer, or, in the case of
Subsidiary Assets, shall cause the Subsidiary Asset Sellers to sell, convey,
assign, transfer and deliver to Buyer, and Buyer shall purchase and acquire from
the Asset Sellers, all of the Asset Sellers' right, title and interest in and to
the assets, rights, properties, claims, contracts and business of the Asset
Sellers as the same shall exist on the Closing Date (of every kind, nature,
character and description, tangible and intangible, real, personal or mixed,
wherever located, in each case free of any Encumbrance other than Permitted
Encumbrances) which, together with the licenses and services to be provided to
Buyer pursuant to the Buyer License Agreement and the Transition Agreements, are
all of the assets, rights, properties, claims, contracts and business necessary
to conduct the Analytical Instruments Business as currently conducted,
including, without limitation, the following:
(a) Subject to the provisions of the License Agreements, all
of each Asset Seller's right, title and interest in and to (i) all (A) patents,
patent applications, patent or invention disclosures, provisional patent
applications and all related continuation, continuation-in-part, divisional,
reissue, re-examination, utility model, certificate of invention and design
patents, registrations and applications for registrations, (B) trademarks,
service marks, common law trademarks and service marks, trade dress, logos,
trade names and corporate names and registrations and applications for
registration thereof, (C) copyrightable works, copyrights and registrations and
applications for registration thereof, (D) mask works and registrations and
applications for registration thereof, (E) computer software, databases and
documentation,
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(F) trade secrets and confidential business information, whether patentable or
nonpatentable and whether or not reduced to practice, know-how, manufacturing
and product processes and techniques, research and development information,
financial, marketing and business data, pricing and cost information, business
and marketing plans and customer and supplier lists and information and (G)
other proprietary rights relating to any of the foregoing (including protection
of interest therein under the laws of all jurisdictions) (collectively,
"INTELLECTUAL PROPERTY") in each case as set forth, summarized and/or described
in Section 1.2(a) of the Seller Schedule dated March 8, 1999 that was previously
delivered to Buyer (the "SELLER SCHEDULE"), including all rights in existence on
the Closing Date to initiate or file suit for infringements occurring before or
on the Closing Date; and (ii) all licenses and other agreements to which any
Asset Seller is a party or by which any Asset Seller is bound relating to
Intellectual Property, the material ones of which are set forth in Section
1.2(a) of the Seller Schedule;
(b) The real property and leasehold interests in real property
described in Section 1.2(b) of the Seller Schedule, including all buildings,
structures, fixtures and other improvements situated thereon or attached thereto
(individually, a "PLANT" and collectively, the "PLANTS"), and including all the
Asset Sellers' right, title and interest in and to all leases, subleases,
franchises, licenses, permits, easements, privileges, rights-of-way, riparian
and other water rights, lands underlying any adjacent streets or roads and
appurtenances pertaining to or accruing to the benefit of such property, in each
case subject to the exceptions described on Section 1.2(b) of the Seller
Schedule;
(c) Each Asset Seller's right, title and interest in and to
the equipment, furniture, furnishings, fixtures, machinery, vehicles, tools and
other tangible personal property necessary to conduct the Analytical Instruments
Business as currently conducted (collectively, the "EQUIPMENT") and all
warranties and guarantees, if any, express or implied, existing for the benefit
of the Asset Sellers in connection with the Equipment to the extent
transferable;
(d) The inventories of the Analytical Instruments Business,
wherever located on the Closing Date, including without limitation, all finished
products on hand at the Plants, in transit or in the distribution system of the
Asset Sellers (the "FINISHED GOODS") and the raw materials, packaging materials
and work in process for Analytical Instruments Business products wherever
located on the Closing Date, including without limitation all such raw
materials, packaging materials and work in progress on hand at any property of
the Asset Sellers, in transit or in the distribution system of the Asset
Sellers, together with each Asset Seller's right, title and interest in and to
the spare parts, supplies and promotional materials and inventory that are
required for the development, manufacture, sale or distribution of any
Analytical Instruments Business products (the "MATERIALS"; together with the
Finished Goods, the "INVENTORY");
(e) All management information systems, software and
information systems network connectivity identified in Section 1.2(e) of the
Seller Schedule, and related third party servicing arrangements;
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(f) All books, records and accounts, correspondence,
production records, technical, accounting, manufacturing and procedural manuals,
customer lists, vendor lists, employment records, research material, drawings,
studies, reports or summaries relating to any environmental conditions or
consequences of any current operation of the Analytical Instruments Business, as
well as all studies, reports or summaries relating to any environmental aspect
or the general condition of the Assets or any assets of the Transferred
Subsidiaries, or otherwise relating to the Analytical Instruments Business as
currently conducted, and any confidential information which has been reduced to
writing relating to the Analytical Instruments Business as currently conducted;
provided that the Asset Sellers shall retain the originals and Buyer shall
receive copies of any such items which relate primarily to the Excluded Assets
or Excluded Liabilities or other business operations of the Asset Sellers; and
provided further that in no event shall the Asset Sellers be obligated to
transfer books and records relating exclusively to Taxes (except with respect to
Transferred Subsidiaries);
(g) (i) Each Asset Seller's right, title and interest as of
the Closing in and to contracts, maintenance and service agreements, purchase
commitments for materials and other services, advertising and promotional
agreements, leases and other agreements (including but not limited to, any
agreements of the Asset Sellers with suppliers, sales representatives,
distributors, agents, personal property lessors, personal property lessees,
licensors, licensees, consignors and consignees specified therein)
(collectively, "CONTRACTS") necessary to the conduct of the Analytical
Instruments Business as currently conducted, whether or not entered into in the
Ordinary Course of Business and whether or not identified in the Seller
Schedule, except for those contracts, agreements and commitments set forth in
Section 1.2(g)(i) of the Seller Schedule; and (ii) each Asset Seller's right,
title and interest in and to the contracts, agreements and commitments set forth
in Section 1.2(g)(ii) of the Seller Schedule;
(h) Each Asset Seller's licenses, permits or franchises issued
by any federal, state, municipal or foreign authority relating to the
development, use, maintenance or occupation of the Plants or necessary to enable
Buyer to conduct the Analytical Instruments Business as currently conducted
immediately following the Closing after giving effect to the consummation of the
transactions contemplated hereby, to the extent that such licenses, permits or
franchises are transferable, but excluding those items relating to the corporate
existence of any Asset Seller or described in Section 1.2(h) of the Seller
Schedule;
(i) All rights of each Asset Seller under express or implied
warranties from the suppliers of each Asset Seller with respect to any assets of
the Assets Sellers to be transferred to Buyer at the Closing, but excluding any
such warranties with respect to any Excluded Liabilities;
(j) Whether or not billed, all accounts receivable and other
receivables of the Asset Sellers (collectively, the "ACCOUNTS RECEIVABLE") to
the extent attributable to the Analytical Instruments Business and in existence
on the Closing Date but excluding any such receivables to the extent
attributable to any Excluded Assets or Excluded Liabilities;
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(k) Each Asset Seller's right, title and interest in and to
all goods and services and all other economic benefits to be received subsequent
to the Closing arising out of prepayments and payments by the Asset Sellers
prior to the Closing to the extent attributable to the operation of the
Analytical Instruments Business, but excluding any such benefits to the extent
attributable to any Excluded Assets or Excluded Liabilities (collectively, the
"PREPAID ASSETS"); and
(l) Any other asset of the Asset Sellers not referred to in
the foregoing provisions of this Section 1.2 that is required to be included or
reflected in the Closing Balance Sheet referred to in Section 2.6 or the notes
thereto.
1.3. EXCLUDED ASSETS. It is expressly understood and agreed
that the Assets shall not include the following (each, an "EXCLUDED ASSET"):
(a) Except to the extent expressly transferred pursuant to the
provisions of Sections 1.2(a) through (l), inclusive, all assets, rights,
properties, claims, contracts and business of any Asset Seller that, after
giving effect to the services to be provided to, and other rights of, Buyer
under the Buyer License Agreement and the Transition Agreements, are not
necessary to conduct the Analytical Instruments Business as currently conducted;
(b) The capital stock of all direct or indirect subsidiaries
and affiliates of Seller other than the Transferred Subsidiaries;
(c) Cash and cash equivalents or similar type investments,
bank accounts, certificates of deposit, Treasury bills and other marketable
securities of the Asset Sellers;
(d) All real property and leasehold interests in real property
of the Asset Sellers other than the Plants and the Equipment;
(e) Any refunds or credits with respect to any Taxes paid or
incurred by the Asset Sellers (plus any related interest received from the
relevant taxing authority);
(f) Each Asset Seller's right, title and interest in and to
the contracts listed on Section 1.2(g)(i) of the Seller Schedule;
(g) Any Intellectual Property of the Asset Sellers (other than
the Intellectual Property expressly set forth, summarized and/or described in
Section 1.2(a) hereof or expressly described in Section 1.2(a) of the Seller
Schedule);
(h) The real property, including all buildings, structures and
other improvements situated thereon, and other assets listed in Section 1.3(h)
of the Seller Schedule;
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(i) Other than claims under insurance policies in respect of
Assets that are lost, damaged or destroyed or Assumed Liabilities that are
incurred, in whole or in part, prior to the Closing, all right, title and
interest of any Asset Seller in any insurance policies relating to the
Analytical Instruments Business and all rights of any Asset Seller to insurance
claims and proceeds with respect to or relating to (i) occurrences prior to the
Closing with respect to the operation of the Analytical Instruments Business and
(ii) the Excluded Assets and Excluded Liabilities;
(j) Any foreign currency agreements to which any Asset Seller
is a party; and
(k) All rights with respect to intercompany receivables, notes
or loans between any of the Transferred Subsidiaries, on the one hand, and
Seller and its other subsidiaries (excluding Transferred Subsidiaries), on the
other hand, except as listed in Section 1.3(k) of the Seller Schedule and except
for trade payables or receivables relating to the provision of goods and
services to or by the Analytical Instruments Business in the ordinary course of
business of the Analytical Instruments Business consistent with past practice
and custom ("ORDINARY COURSE OF BUSINESS").
1.4. INSTRUMENTS OF CONVEYANCE AND TRANSFER. At the Closing,
the Asset Sellers shall (a) deliver or cause to be delivered to Buyer such
deeds, bills of sale, endorsements, consents, assignments, and other good and
sufficient instruments of conveyance and assignment as the parties and their
respective counsel shall deem necessary or appropriate or as may be required by
the jurisdiction of organization of each Asset Seller to vest in Buyer all
right, title and interest of the Asset Sellers in and to the Assets (including
such supplemental purchase agreements, consistent with the provisions of this
Agreement, as may be required to be executed and delivered by Buyer and Seller,
or any of their respective subsidiaries, pursuant to the laws of any foreign
jurisdiction applicable to any Asset or Asset Seller), and (b) transfer to Buyer
all the contracts, agreements, commitments, books, records, files and other data
(or copies thereof to the extent originals are not available or to the extent
provided in Section 1.2(f)) relating to the Assets reasonably necessary for the
continued operation of the Analytical Instruments Business by Buyer.
1.5. FURTHER ASSURANCES. From time to time after the Closing
Date, Seller, for no further consideration, will execute and deliver, or cause
to be executed and delivered, such other instruments of conveyance, assignment,
transfer and delivery, and will take such other actions, as Buyer may reasonably
request in order to more effectively transfer, convey, assign and deliver to
Buyer any of the Assets, or to put Buyer in possession and operating control of
the Analytical Instruments Business and enjoy the rights and benefits thereof.
1.6. ASSUMED LIABILITIES. On the Closing Date, Buyer shall
deliver to Seller an undertaking in form reasonably satisfactory to Seller (the
"ASSUMPTION AGREEMENT") whereby Buyer, on and as of the Closing Date, assumes
and agrees to pay, perform and discharge, upon the terms and subject to the
conditions of this Agreement, and further subject to the
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qualifications and limitations herein provided, all liabilities and obligations
of the Asset Sellers as of the Closing, other than Excluded Liabilities, to the
extent they are attributable to the Analytical Instruments Business as conveyed
to Buyer on the Closing Date pursuant to this Agreement, including but not
limited to, the following:
(a) all debts, obligations and liabilities, including, without
limitation, liabilities arising under or relating to Environmental Laws, to the
extent attributable to the ownership or operation of the Analytical Instruments
Business after the Closing or the sale of any products after the Closing (other
than as a result of any breach by any Asset Seller of any of its obligations to
Buyer pursuant to this Agreement);
(b) all obligations of the Asset Sellers under the contracts,
commitments and agreements transferred pursuant to Section 1.2(g) (other than
obligations resulting from a breach by the Asset Sellers of any of their
obligations to Buyer pursuant to this Agreement);
(c) all liabilities and obligations for post-Closing returns
of Analytical Instruments Business products sold prior to or after the Closing;
(d) all liabilities and obligations under the licenses,
permits or franchises included in the Assets pursuant to Section 1.2(h);
(e) all liabilities and obligations arising under or relating
to Environmental Laws for which Buyer expressly assumes responsibility pursuant
to Section 9.5;
(f) all liabilities and obligations in respect of employee
relations and benefits for which Buyer expressly assumes responsibility pursuant
to Section 6 hereof;
(g) all liabilities and obligations for any Taxes and expenses
for which Buyer expressly assumes responsibility pursuant to Section 9.3 hereof;
(h) all liabilities with respect to actions, suits,
proceedings, disputes, claims or investigations for which Buyer expressly
assumes responsibility pursuant to Section 9.6;
(i) all liabilities of any Asset Seller for product liability
claims with respect to or relating to occurrences after the Closing with respect
to the operation of the Analytical Instruments Business; and
(j) any other liability or obligation of the Assets Sellers
not referred to in the foregoing provisions of this Section 1.6 that is required
to be included or reflected in the Closing Balance Sheet referred to in Section
2.6 or the notes thereto.
The liabilities and obligations assumed by Buyer in accordance
with this Section 1.6 are sometimes hereinafter referred to as the "ASSUMED
LIABILITIES".
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1.7. EXCLUDED LIABILITIES. It is expressly understood and
agreed that, notwithstanding anything to the contrary in this Agreement, Assumed
Liabilities shall not include the following (collectively, the "EXCLUDED
LIABILITIES"):
(a) except to the extent expressly assumed pursuant to the
provisions of Sections 1.6(a) through 1.6(k), inclusive, all debts, liabilities
or obligations of the Asset Sellers to the extent they are attributable to the
Asset Sellers= business other than the Analytical Instruments Business as
conveyed to Buyer on the Closing Date pursuant to this Agreement;
(b) all liabilities or obligations of any Asset Seller in the
nature of Indebtedness, including any obligation or liability under any contract
or agreement relating to the same; as used in this Agreement, "INDEBTEDNESS" of
any Person means, without duplication, (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments (or reimbursement obligations
with respect thereto), other than letters of credit incurred by such Person in
the Ordinary Course of Business, (iii) all obligations of such Person to pay the
deferred and unpaid purchase price of property or services, other than trade
payables and accrued expenses incurred in the Ordinary Course of Business and
(iv) all capitalized lease obligations of such Person;
(c) all liabilities and obligations in respect of employee
relations and benefits not expressly assumed by Buyer pursuant to Section 6
hereof;
(d) liabilities or obligations under foreign currency
contracts to which any Asset Seller is a party;
(e) all obligations with respect to intercompany receivables,
notes or loans between any of the Transferred Subsidiaries, on the one hand, and
Seller or any of its other subsidiaries (excluding Transferred Subsidiaries), on
the other hand, except as listed in Section 1.7(e) of the Seller Schedule and
except for trade payables or receivables relating to the provision of goods or
services to or by the Analytical Instruments Business in the Ordinary Course of
Business;
(f) liabilities arising from or in connection with the
discontinued operations of the Analytical Instruments Business not attributable
to the Analytical Instruments Business as conveyed to Buyer on the Closing Date
pursuant to this Agreement;
(g) all liabilities arising out of or relating to the Excluded
Assets;
(h) except as otherwise expressly provided herein, (i) all
liabilities and obligations for Taxes of the Asset Sellers and the Transferred
Subsidiaries in any jurisdiction for all taxable periods ending on or before the
Closing Date, and with respect to taxable periods beginning before the Closing
Date and ending after the Closing Date to the extent allocable to the
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period ending on the Closing Date (it being agreed that any such allocation to
Taxes to the pre-Closing period be made on the same basis as in Section
9.4(a)(iv)) and (ii) all liabilities of the Asset Sellers as described in
Section 9.3.
(i) all liabilities with respect to actions, suits,
proceedings, disputes, claims or investigations filed or commenced prior to the
Closing Date not expressly assumed by Buyer pursuant to Section 9.6;
(j) all liabilities for product liability claims with respect
to or relating to occurrences prior to the Closing with respect to the operation
of the Analytical Instruments Business;
(k) all liabilities and obligations for which Seller has
expressly assumed responsibility pursuant to this Agreement;
(l) liabilities and obligations under Restricted Assets to the
extent Seller does not obtain the consents and waivers necessary to assign,
transfer or sublicense such Restricted Assets to Buyer and Seller does not
provide Buyer the benefits of the Restricted Assets pursuant to Sections 2.5 and
9.14 hereof; and
(m) except to the extent expressly assumed by Buyer pursuant
to Section 1.6(e) and subject to the provisions of Section 9.5, all liabilities
with respect to (i) any actual or alleged release of any Materials of
Environmental Concern into the environment relating to the Assets or the
operation of the Analytical Instruments Business occurring on or prior to the
Closing Date, (ii) any actual or alleged release of any Materials of
Environmental Concern into the environment on or prior to the Closing Date from
or at any site owned or operated by the Company on or prior to the Closing Date
or from or at any location to which any Materials of Environmental Concern
generated by the Company were actually or allegedly transported by or on behalf
of the Company on or prior to the Closing Date or (iii) any actual or alleged
violation of any Environmental Law by the Company occurring on or prior to the
Closing Date.
2. CLOSING; PAYMENT OF PURCHASE PRICE AT CLOSING
2.1. CLOSING DATE. Unless this Agreement shall have been
terminated and the transactions herein contemplated shall have been abandoned
pursuant to Section 7.1, the closing with respect to the transactions provided
for in this Agreement (the "CLOSING") shall take place at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, at 10:00 a.m., New York City time, on the fifth Business Day after
satisfaction or waiver of all of the conditions to the Closing set forth in
Section 5 hereof, or at such other time, date and place as shall be agreed upon
by Seller and Buyer. The date of the Closing is herein called the "CLOSING
DATE". The Closing shall be deemed effective as of the
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close of business on the Closing Date in each location at which the Analytical
Instruments Business is conducted.
2.2. CLOSING DELIVERIES BY SELLER. At the Closing, Seller
shall deliver or cause to be delivered to Buyer:
(a) executed counterparts of the License Agreements and the
Transition Agreements;
(b) certificates representing the shares of the Subsidiary
Stock, duly endorsed in blank or accompanied by stock powers or other applicable
documents of transfer duly executed in blank pursuant to Section 1.1;
(c) bills of sale, and such other instruments as may be
reasonably requested by Buyer to transfer the Assets to Buyer or to evidence
such transfer on the public records pursuant to Section 1.4;
(d) a receipt for the Purchase Price;
(e) resignations from each of the directors and officers of
the Transferred Subsidiaries that Buyer requests at least ten calendar days
prior to the Closing Date; and
(f) certificates from executive officers of Seller as to the
satisfaction of the conditions to Closing set forth in this Agreement and other
documents pursuant to Section 5.
2.3. CLOSING DELIVERIES BY BUYER. At the Closing, Buyer shall
deliver to Seller:
(a) (i) $275 million dollars (the "CASH PURCHASE PRICE") by
wire transfer of immediately available funds to the bank account or bank
accounts specified by Seller in a written notice delivered to Buyer at least
five Business Days prior to the Closing Date (including such bank account or
bank accounts as Seller may so specify for purposes of extinguishing receivables
and payables in accordance with Section 4.3); and (ii) a secured promissory note
of Buyer in the principal amount of $150 million dollars having the terms set
forth in EXHIBIT E hereto (the "NOTE", and collectively with the Cash Purchase
Price, the "PURCHASE PRICE");
(b) executed counterparts of the Assumption Agreement, License
Agreements, Transition Agreements and the Security Agreement (as defined in
EXHIBIT E hereto);
(c) such other documents as may be reasonably requested by
Seller to effect the assumption by Buyer of the Assumed Liabilities; and
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(d) certificates from executive officers of Buyer as to the
satisfaction of the conditions to Closing set forth in this Agreement and other
documents pursuant to Section 5.
2.4. PURCHASE PRICE ALLOCATION. Section 2.4 of the Seller
Schedule sets forth an allocation of the Purchase Price to each country in which
Assets or Subsidiary Stock will be transferred pursuant to this Agreement. No
later than 10 Business Days prior to the Closing, Seller shall provide Buyer
with a proposed final version of Section 2.4 of the Seller Schedule. Buyer and
Seller shall then cooperate in good faith to finalize such Section 2.4 on or
prior to the Closing. As soon as practicable following the Closing, but in no
event later than 90 days prior to the date on which Internal Revenue Service
Form 8594 (or any similar form required by any foreign jurisdiction) is due,
Buyer will prepare, on a basis consistent with Section 2.4 of the Seller
Schedule, an allocation schedule (the "ALLOCATION SCHEDULE") of the Purchase
Price and Assumed Liabilities among the Assets (including classes of assets) and
Subsidiary Stock along with the first draft of Internal Revenue Service Form
8594 (and any similar form required by any foreign jurisdiction). Within thirty
(30) days after the receipt of such Allocation Schedule and Form 8594 (and
similar forms), Seller shall propose any changes to such Allocation Schedule and
Form 8594 (and similar forms) or shall indicate its concurrence therewith, which
concurrence shall not be unreasonably withheld. Seller and Buyer shall endeavor
in good faith to resolve any differences with respect to the Allocation Schedule
and Form 8594 (and similar forms). Seller and Buyer agree to act in accordance
with the computations and allocations contained in the Allocation Schedule,
after giving effect to the foregoing procedures, in any relevant tax returns or
filings (including any forms or reports required to be filed pursuant to Section
1060 of the Internal Revenue Code of 1986, as amended (the "CODE"), the Treasury
Regulations promulgated thereunder or any provisions of local, state and foreign
law ("1060 FORMS")), and to cooperate in the preparation of any 1060 Forms and
to file such 1060 Forms in the manner required by applicable law.
2.5. RESTRICTED ASSETS. (a) Seller shall, and shall cause the
Company and the Asset Sellers (collectively, the "PE GROUP") to, use all
reasonable efforts, and Buyer shall cooperate reasonably with the PE Group, (i)
to promptly obtain the consents and waivers necessary to convey or cause to be
conveyed to Buyer all of the Restricted Assets (which for purposes of this
Section 2.5 shall include the capital stock of the Transferred Subsidiaries),
and (ii) as of and subject to the occurrence of the Closing, to convey or cause
to be conveyed to Buyer the Restricted Assets for which the Company received the
necessary consents and waivers; PROVIDED, HOWEVER, that Seller shall not, and
shall cause the PE Group not to, amend or change any Restricted Asset without
the prior written consent of Buyer unless Seller reasonably deems it necessary
to preserve the value of the Restricted Asset. Seller shall, and shall cause the
PE Group to, cooperate with Buyer in making applications and filings or taking
any other action necessary for Buyer to obtain such franchises, licenses,
permits or other instruments or agreements, if any, as are substantially
equivalent to any Restricted Assets that are not assignable to Buyer as a matter
of law. In no event shall Buyer's cooperation hereunder require Buyer to make
any payments or incur any out-of-pocket expenses, except that Buyer shall
reimburse
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Seller for any consideration paid, with the prior approval of Buyer, to any
Person from whom a consent or waiver is requested.
(b) To the extent that the consents and waivers necessary to
assign, transfer, sublease or sublicense any of the Restricted Assets are not
obtained, Seller shall, commencing on the Closing Date and continuing for the
duration thereof or until such time as any Restricted Assets have been
transferred to Buyer pursuant to Section 2.5(d) or otherwise disposed of in
accordance with Section 2.5(e), use all reasonable efforts to (i) provide to
Buyer the benefits of any such Restricted Asset not assigned, transferred or
subleased due to Seller's or the PE Group's failure or inability to obtain such
consent or waiver, and manage and operate the Restricted Assets for the benefit
and account of Buyer, with all gains, income, losses, Taxes or other items
generated thereby to be for the account of Buyer, (ii) cooperate with Buyer to
reach a reasonable and lawful arrangement designed to provide such benefits to
Buyer during such period and (iii) enforce at the request of Buyer, or allow
Buyer to enforce, any rights of the PE Group under any such Restricted Asset
against the issuer thereof or the other party or parties thereto (including the
right to elect to terminate such of the foregoing in accordance with the terms
thereof upon the request of Buyer); PROVIDED, HOWEVER, that the reasonable costs
and expenses of the PE Group (including reasonable professional fees and
expenses) incurred at Buyer's request with respect to any of the actions
contemplated under (iii) above shall be promptly paid or reimbursed by Buyer to
Seller. Upon the transfer or disposition or termination of any Restricted Asset,
the PE Group shall have no further duties or obligations under this Section 2.5
with respect to such Restricted Asset and the failure or inability to obtain any
necessary consent or waiver with respect thereto shall not be a breach of this
Agreement so long as the Asset Sellers have carried out their obligations under
this Section 2.5. Prior thereto and subject to applicable law and regulations
(including, without limitation, all laws and regulations requiring investment
approvals or consents or anti-monopoly clearances, exemptions or waivers in
connection with any disposition of the Restricted Assets, and all exchange
controls and laws concerning foreign corrupt practices, expatriation of funds or
otherwise), the PE Group shall, in respect of any Restricted Assets, use all
reasonable efforts to follow and implement the reasonable written instructions
and policies of Buyer relating to the holding, management and operation of the
Restricted Assets.
(c) To the extent that Buyer is provided the benefits of any
Restricted Asset pursuant to clause (b) of this Section 2.5, Buyer shall perform
for the benefit of the issuer thereof, or the other party or parties thereto,
the obligations of any member of the PE Group thereunder or in connection
therewith, but only to the extent that (i) such action by Buyer would not result
in any default thereunder or in connection therewith and (ii) such obligation
would have been an Assumed Liability but for the non-assignability or
non-transferability thereof; PROVIDED, HOWEVER, that if Buyer shall fail to
perform to the extent required herein, the PE Group shall thereafter cease to be
obligated under this Section 2.5 to provide Buyer with any benefits in respect
of the Restricted Asset which is the subject of such failure to perform unless
and until such situation is remedied or, at the sole option of Seller, Buyer
shall promptly pay or reimburse Seller to remedy such failure to perform during
such period of failure of performance. For
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purposes of this Section 2.5, the PE Group shall not include the Transferred
Subsidiaries after the Closing Date. Subject to compliance by the PE Group with
any reasonable instructions and directions of Buyer, no member of the PE Group
shall have any liability to Buyer arising out of the management or operation by
the PE Group of any Restricted Assets other than for fraud, gross negligence or
willful misconduct. Buyer shall reimburse the PE Group and shall hold the PE
Group harmless from and against all liabilities actually incurred as a result of
the post-Closing direct or indirect ownership, management, operation or sale
(other than to Buyer) of the Restricted Assets by the PE Group, including,
without limitation, the amount of any additional Taxes payable by the PE Group
(whether currently or in the future) in excess of the amount of Taxes which
would have been payable by the PE Group, after application of the terms of this
Agreement, if the Restricted Assets had been transferred to Buyer on the Closing
Date. Subject to Buyer receiving a request for payment from the PE Group
(together with any related ▇▇▇▇, claim, invoice or other request for payment
including such detail and supporting documentation as Buyer shall reasonably
request), such reimbursement shall be made by Buyer not less than thirty (30)
days prior to the date on which the PE Group is required to make such payment
(unless being contested by Buyer in good faith, in which event the uncontested
portion of such reimbursement shall be paid by Buyer not less than thirty (30)
days prior to such date). "Business Day" shall mean any day other than a
Saturday or Sunday or a day on which banking institutions located in New York,
New York are permitted or required by law, executive order or governmental
decree to remain closed.
(d) Unless otherwise disposed of upon Buyer's instructions in
accordance with Section 2.5(e), the consents, assignments and other good and
sufficient instruments of conveyance and assignment relating to the relevant
Restricted Assets as are necessary under applicable law in order to transfer
effectively such Restricted Assets, free and clear of all Encumbrances (except
Permitted Encumbrances and Encumbrances which are created with Buyer's prior
written consent during the period the Restricted Assets were being held for
Buyer's benefit), will be delivered to Buyer as soon as practicable after all
consents or waivers relating to any such Restricted Assets or the transfer
thereof shall have been obtained.
(e) At any time prior to the transfer to Buyer of any
Restricted Asset, the PE Group shall, on Buyer's written instructions (subject
to applicable law and regulations), or may at any time after three (3) years
from the Closing, with Buyer's consent (which shall not be unreasonably
withheld), for Buyer's benefit, dispose of the Restricted Assets and remit the
proceeds of such sale (less withholding or similar Taxes, if any, payable with
respect to such disposition or remittance) to Buyer; PROVIDED, that Seller shall
have no liability to any third party arising out of such transactions other than
for fraud, gross negligence or willful misconduct; and PROVIDED, FURTHER, that
any amount remitted to Buyer pursuant to this Section 2.5(e) shall be reduced
by, to the extent not previously paid by or on behalf of Buyer pursuant to
Section 2.5(c), the amount of any and all liabilities described in Section
2.5(c) imposed upon or incurred by Seller as a result of Seller's post-Closing
direct or indirect ownership, management, operation or sale of the Restricted
Assets, including, without limitation, the amount of any Taxes (other than Taxes
previously paid by Buyer pursuant to Section 2.5(c)) payable by Seller as a
result thereof;
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and PROVIDED FURTHER that any Contract, permit, license or other agreement or
instrument which is a Restricted Asset which has a fixed term of duration may
not be terminated or so disposed of by Seller prior to its expiration in
accordance with its terms except upon Buyer's specific instruction.
(f) For purposes of this Agreement, "RESTRICTED ASSET" means
any Asset (including any asset of an Asset Seller that was excluded from the
definition of Asset solely because it was not transferable but which may become
transferable after the Closing), which Asset cannot be validly assigned,
transferred, subleased or sublicensed without the consent or waiver of the
issuer thereof or the other party or parties thereto or a third Person
(including a Governmental Authority), or with respect to which such assignment,
transfer, sublease or sublicense or attempted assignment, transfer, sublease or
sublicense could reasonably be expected to (i) constitute a breach thereof or a
violation of any law, decree, order, regulation, rule, ordinance or other
governmental edict, or (ii) entitle the other party or parties thereto to
terminate such Asset or receive any additional payment thereunder; and
"RESTRICTED ASSETS" means all of them collectively. For purposes of this
definition, "transfer" or similar word shall include a transfer resulting or
deemed to result under the terms of the Restricted Asset as a consequence of the
transfer of Subsidiary Stock and the Assets to Buyer.
(g) With respect to those contracts, agreements or other
instruments which relate to both Assets or Assumed Liabilities and Excluded
Assets or Excluded Liabilities (the "SHARED CONTRACTS"), the Transition
Agreements shall provide for Buyer to receive the benefits and assume the
liabilities of the Shared Contracts to the extent such rights and liabilities
under the Shared Contracts relate to Assets and Assumed Liabilities and for
Seller to retain the benefits and liabilities of the Shared Contracts to the
extent such rights and liabilities under Shared Contracts relate to Excluded
Assets and Excluded Liabilities.
2.6. POST-CLOSING ADJUSTMENTS. (a) Within 60 days following
the Closing, Seller shall, at its expense, prepare, or cause to be prepared, and
deliver to Buyer an audited Combined Statement of Net Assets to Be Sold of the
Analytical Instruments Business together with the notes thereto and the report
thereon of PricewaterhouseCoopers, LLP (the "CLOSING BALANCE SHEET") which shall
set forth the Net Assets of the Analytical Instruments Business immediately
prior to the Closing (the "CLOSING NET ASSETS"). The Closing Balance Sheet shall
be prepared, and Closing Net Assets calculated, using the same accounting
principles, methods, practices, allocation methodologies and estimation
methodologies as were utilized in the preparation of the 1998 Statement of Net
Assets after giving effect to the adjustments set forth in Section 3.1(g) of the
Seller Schedule. For purposes hereof, "NET ASSETS" means the excess of the total
assets of the Analytical Instruments Business to be sold over the total
liabilities of the Analytical Instruments Business to be assumed as reflected in
a combined statement of net assets of the Analytical Instruments Business
prepared and calculated as provided in the immediately preceding sentence. At
the same time, Seller shall deliver a statement (the "SUBSIDIARY STATEMENT")
indicating the excess (the "PRELIMINARY ADJUSTMENT AMOUNT") of: (i) the amount
(on a combined basis) as of the Closing Date of the cash and cash equivalents of
the Transferred
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Subsidiaries (the "SUBSIDIARY CASH AMOUNT"); over (ii) the amount (on a combined
basis) as of the Closing Date of the Indebtedness of the Transferred
Subsidiaries to parties other than Seller or any of its subsidiaries (other than
the Transferred Subsidiaries) (the "SUBSIDIARY DEBT AMOUNT"). The Subsidiary
Statement shall be prepared and determined in accordance with U.S. GAAP.
(b) Buyer and Buyer's accountants shall, within 60 days after
the delivery by Seller of the Closing Balance Sheet and Subsidiary Statement and
calculation of Closing Net Assets and the Preliminary Adjustment Amount,
complete their review of Closing Net Assets and the Preliminary Adjustment
Amount. In the event that Buyer determines that Closing Net Assets or the
Preliminary Adjustment Amount have not been determined in accordance with the
accounting principles, methods, practices and estimation methodologies required
pursuant to Section 2.6(a), Buyer shall inform Seller in writing (the "BUYER'S
OBJECTION"), setting forth a specific description of the basis of Buyer's
Objection and the adjustments to Closing Net Assets and the Preliminary
Adjustment Amount which Buyer believes should be made, on or before the last day
of such 60-day period. Seller shall then have 30 days to review and respond to
Buyer's Objection. If Seller and Buyer are unable to resolve all of their
disagreements with respect to the determination of the foregoing items within 30
days following the completion of Seller's review of Buyer's Objection, they
shall refer their remaining differences to KPMG Peat Marwick or another
nationally recognized firm of independent public accountants as to which Seller
and Buyer mutually agree (the "ACCOUNTING FIRM") who shall, acting as experts in
accounting and not as arbitrators, determine on the basis of the standards set
forth in Section 2.6(a), and only with respect to the specific remaining
accounting related differences so submitted, whether and to what extent, if any,
Closing Net Assets or the Preliminary Adjustment Amount requires adjustment.
Seller and Buyer shall direct the Accounting Firm to use its best efforts to
render its determination within 45 days. The Accounting Firm's determination
shall be conclusive and binding upon Buyer and Seller. The fees and
disbursements of the Accounting Firm shall be shared equally by Buyer, on the
one hand, and Seller, on the other hand. Buyer and Seller shall make readily
available to the Accounting Firm all relevant books and records and any work
papers (including those of the parties' respective accountants) relating to the
1998 Statement of Net Assets, the January 1999 Financial Statements, the Closing
Balance Sheet, the Closing Net Assets, the Preliminary Adjustment Amount and all
other items reasonably requested by the Accounting Firm. The "ADJUSTED CLOSING
NET ASSETS" shall be (i) the Closing Net Assets in the event that (x) no Buyer's
Objection is delivered to Seller during the 60-day period specified above, or
(y) Seller and Buyer so agree, (ii) the Closing Net Assets, adjusted in
accordance with Buyer's Objection in the event that Seller does not respond to
Buyer's Objection within the 30-day period following receipt by Seller of
Buyer's Objection, or (iii) the Closing Net Assets, as adjusted by either (x)
the agreement of Seller and Buyer or (y) the Accounting Firm. The "FINAL
ADJUSTMENT AMOUNT" shall be (A) the Preliminary Adjustment Amount in the event
that (x) no Buyer's Objection is delivered to Seller during the 60-day period
specified above, or (y) Seller and Buyer so agree, (B) the Preliminary
Adjustment Amount, adjusted in accordance with Buyer's Objection in the event
that Seller does not respond to Buyer's Objection within the 30-day period
following receipt by Seller of Buyer's Objection or (C) the excess of the
Subsidiary
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Cash Amount over the Subsidiary Debt Amount as determined by either the
agreement of Seller and Buyer or the Accounting Firm.
(c) Buyer shall provide Seller and its accountants full access
to the books and records of the Analytical Instruments Business, to any other
information, including work papers of their accountants, and to any employees to
the extent necessary for Seller to prepare the Closing Balance Sheet or the
Subsidiary Statement and determine Closing Net Assets and the Preliminary
Adjustment Amount. Buyer and its accountants shall have prior notice of and the
opportunity to observe the taking of the Inventory (which may begin prior to the
Closing Date) in connection with the preparation of the Closing Balance Sheet,
Closing Net Assets and the Subsidiary Statement and shall have full access to
all information used by Seller in preparing the Closing Balance Sheet and
Closing Net Assets, the 1999 Financial Statements and the Subsidiary Statement,
including the procedures, books, records and (subject to customary undertakings)
work papers of its accountants. Seller shall provide Buyer and Buyer's
accountants full access to the books and records of Seller, including work
papers of its accountants (subject to customary undertakings) and to any
employees in connection with the 1998 Financial Statements and the Subsidiary
Statement and the accounting principles, methods, practices and allocation
methodologies.
(d) Within 10 business days following determination of the
Adjusted Closing Net Assets, Buyer or Seller, as the case may be, shall make an
adjustment payment in U.S. dollars in the applicable amount hereinafter
provided. The adjustment payment will be made by Seller to Buyer to the extent
that the Adjusted Closing Net Assets are less than $132 million and by Buyer to
Seller to the extent that Adjusted Closing Assets are greater than $142 million,
plus, in either case, interest thereon from the Closing Date through the date of
payment at a rate equal to the 30-day commercial paper rate for high-grade
unsecured notes sold through dealers by major corporations as listed in the
Money Rates table of The Wall Street Journal on the Closing Date (the "INTEREST
RATE"). In addition, in the event that the Final Adjustment Amount is positive,
Buyer shall make a payment to Seller in U.S. dollars in an amount equal to the
Final Adjustment Amount within ten (10) days following its determination. In the
event that the Final Adjustment Amount is negative, Seller shall make a payment
to Buyer in U.S. dollars in an amount equal to the Final Adjustment Amount
within ten (10) days following its final determination. The Final Adjustment
Amount shall be paid with interest at the rate provided above for the period
from the Closing Date through the date of payment. The adjustment payments
payable pursuant to the foregoing provisions of this Section 2.6(d) shall be
paid by wire transfer of immediately available funds to an account designated by
Buyer, on the one hand, or Seller, on the other hand, as the case may be.
(e) With respect to that certain Profit & Loss Pooling
Agreement between ▇▇▇▇▇▇-▇▇▇▇▇ Holding GmbH Uberlingen ("PEH") and Bodenseewerk
▇▇▇▇▇▇-▇▇▇▇▇ GmbH ("BSW"), Buyer shall promptly reimburse Seller for any payment
made by PEH to BSW and Seller shall promptly reimburse Buyer for any payment
made by BSW to PEH pursuant to that agreement if such payments are made after
the Closing Date due to the requirements of German
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law and the statutory audit. Any such reimbursement by Buyer or Seller shall be
considered an adjustment to the Purchase Price. Seller shall cause PEH to
promptly reimburse BSW, or Buyer shall cause BSW to reimburse PEH, as the case
may be, for any amount due to or from either BSW or PEH with respect to the VAT
account between PEH and BSW promptly after the determination thereof and in any
case prior to the time for payment thereof.
3. REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF SELLER. Except as set
forth in the Seller Schedule, Seller, on behalf of itself and the Subsidiaries,
including, without limitation, the Transferred Subsidiaries and the Asset
Sellers, represents and warrants to Buyer that the statements contained in this
Section 3.1 are true, complete and correct. As used in this Agreement, a "SELLER
MATERIAL ADVERSE EFFECT" means any material adverse effect on the operations,
results of operations, financial condition, assets or business of the Analytical
Instruments Business taken as a whole, and a "SELLER REPRESENTATION ADVERSE
EFFECT" means any adverse effect on the operations, results of operations,
financial condition, assets or business of the Analytical Instruments Business
that is reasonably expected to result in a liability to the Analytical
Instruments Business in excess of $500,000.
(a) DUE ORGANIZATION; GOOD STANDING AND POWER. Section 3.1(a)
of the Seller Schedule sets forth a true, complete and correct list of all the
Subsidiaries, their respective jurisdictions of incorporation and the number of
shares of capital stock of each Transferred Subsidiary outstanding and such
number owned beneficially and of record by Seller or the Subsidiaries. Seller
and each of the Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has the requisite corporate power and authority to own, lease and operate its
property and to conduct the Analytical Instruments Business as currently
conducted by it. Seller has all requisite corporate power and authority to enter
into this Agreement and each of the other agreements contemplated hereby to be
entered into by it and to perform its obligations hereunder and thereunder. Each
Subsidiary has all requisite corporate power and authority to enter into each
agreement contemplated hereby to be entered into by it and to perform its
obligations thereunder. Each of Seller and each Subsidiary Asset Seller has all
requisite corporate power and authority to convey good and marketable title to
Buyer with respect to the Assets owned by it. Each Affiliate of Seller which
owns Subsidiary Stock has all requisite corporate power and authority to enter
into each agreement contemplated hereby to be entered into by it and to perform
its obligations thereunder. Each Affiliate of Seller which owns Subsidiary Stock
has all requisite corporate power and authority to convey good and marketable
title to Buyer with respect to the Subsidiary Stock owned by it. Each of Seller
and the Subsidiaries is duly authorized, qualified or licensed to do business as
a foreign corporation and is in good standing in each of the jurisdictions in
which its right, title or interest in or to any of the Assets held by it, or the
conduct of the Analytical Instruments Business by it, requires such
authorization, qualification or licensing, except where the failure to so
qualify or to be in good standing would not, individually or in the aggregate,
have a Seller Representation Adverse Effect or materially impair either (i) the
ability
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of Seller or such Subsidiary to perform its obligations hereunder or under any
other agreement contemplated hereby to which it is a party or (ii) the ability
of Buyer to own the Assets and Subsidiary Stock, and operate the Analytical
Instruments Business, after the Closing (except as may be affected by
considerations applicable to Buyer that would not be applicable to any other
third party purchaser of the Analytical Instruments Business).
(b) AUTHORIZATION AND VALIDITY OF AGREEMENT. The execution,
delivery and performance by Seller of this Agreement and by each of Seller and
each Subsidiary of any other agreements contemplated hereby (to the extent such
entity is a party thereto) and the consummation by each of the transactions
contemplated hereby and thereby have been duly authorized by the Board of
Directors of Seller. No other corporate or stockholder action is necessary for
the authorization, execution, delivery and performance by Seller of this
Agreement and by each of Seller and each Subsidiary of any other agreements
contemplated hereby (to the extent such entity is a party thereto) and the
consummation by Seller and the Subsidiaries of the transactions contemplated
hereby or thereby, other than certain corporate approvals of the foreign
Subsidiaries, which corporate approvals shall have been obtained by the Closing
Date. This Agreement has been duly executed and delivered by Seller and
constitutes a valid and legally binding obligation of Seller, enforceable
against it in accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting the enforcement of creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing. When executed and delivered as provided in this Agreement, each other
agreement contemplated hereby to be executed and delivered by Seller or any
Subsidiary will be a valid and legally binding obligation of Seller or such
Subsidiary (to the extent a party thereto), enforceable against Seller or such
Subsidiary in accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting the enforcement of creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing.
(c) NO GOVERNMENTAL APPROVALS OR NOTICES REQUIRED; NO CONFLICT
WITH INSTRUMENTS TO WHICH COMPANY IS A PARTY. Except for the pre-merger
notification requirements of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the rules and regulations thereunder (the "HSR ACT") or as
set forth in Section 3.1(c) of the Seller Schedule, the execution, delivery and
performance of this Agreement and any other agreements contemplated hereby by
Seller and the Subsidiaries and the consummation by them of the transactions
contemplated hereby and thereby (i) will not violate (with or without the giving
of notice or the lapse of time or both), or require any consent, approval,
filing or notice to be made by Seller or any Subsidiary under, any provision of
any law, rule or regulation, court order, judgment or decree or Material Permit
(to the extent transferable) applicable to Seller or any Subsidiary, except for
such violations the occurrence of which, and such consents, approvals, filings
or notices the failure of which to obtain or make, would not, individually or in
the aggregate, have a Seller Representation Adverse Effect, or materially impair
either (A) the ability
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of Seller and the Subsidiaries to perform their respective obligations under
this Agreement and the other agreements contemplated hereby or (B) except as may
be affected by considerations applicable to Buyer that would not be applicable
to any other third party purchaser of the Analytical Instruments Business, the
ability of Buyer to own the Assets and Subsidiary Stock, and operate the
Analytical Instruments Business after the Closing in the same manner as
conducted by the Company before the Closing (except as may be affected by
considerations applicable to Buyer that would not be applicable to any other
third party purchaser of the Analytical Investments Business) and (ii) will not
conflict with, or result in the breach or termination of any provision of,
require the counterparty=s consent under or constitute a default under, or
result in the acceleration of the performance of the obligations of Seller or
any Subsidiary under, or result in the creation of a lien, charge or encumbrance
upon a portion of the properties or assets of any Seller or any Subsidiary
included in the Assets or the Analytical Instruments Business pursuant to, the
charter or by-laws (or analogous organizational documents) of Seller or any
Subsidiary, or any indenture, mortgage, deed of trust, lease, licensing
agreement, contract, instrument or other agreement to which Seller or any such
Subsidiary is a party or by which Seller or any Subsidiary or any of the Assets
held by Seller or any Subsidiary is bound, except for such conflicts, breaches,
consents, terminations, defaults, accelerations, liens, charges or encumbrances
which would not, individually or in the aggregate, have a Seller Representation
Adverse Effect or materially impair the ability of Seller or such Subsidiary to
perform its obligations under this Agreement or any other agreement contemplated
hereby to which it is a party (except as may be affected by considerations
applicable to Buyer that would not be applicable to any other third party
purchaser of the Analytical Instruments Business).
(d) CAPITAL STOCK OF THE TRANSFERRED SUBSIDIARIES. (i) There
are no options, warrants, convertible securities or other rights, subscriptions,
agreements, arrangements or commitments relating to the capital stock of, or
equity interests in, any of the Transferred Subsidiaries obligating Seller or
any of the Subsidiaries to issue, sell or acquire any shares of capital stock
of, or equity interests in, any Transferred Subsidiary or entitling any third
party to acquire from any Transferred Subsidiary any shares of capital stock or
other securities of such Transferred Subsidiary.
(ii) The Subsidiary Stock constitutes all of the issued and
outstanding shares of capital stock of each Transferred Subsidiary and
good title to the Subsidiary Stock is owned of record and beneficially
solely by Seller or a wholly owned subsidiary of Seller, free and clear
of all Encumbrances, other than certain nominee shares (the "NOMINEE
SHARES"), as to which Seller and its subsidiaries have the requisite
contractual authority to convey good title to Buyer as set forth in
Section 3.1(d) of the Seller Schedule. All of the shares of Subsidiary
Stock have been duly authorized and validly issued and are fully paid
and nonassessable and were not issued in violation of and are free of
any preemptive rights. There are no voting trusts, stockholder
agreements, proxies or other agreements or understandings in effect
with respect to the voting or transfer of any of the shares of
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Subsidiary Stock except with respect to the Nominee Shares as described
in Section 3.1(d) of the Seller Schedule.
(iii) Subject only to recording on the books of the respective
Transferred Subsidiaries, the transfer of the shares of Subsidiary
Stock to Buyer at Closing will vest in Buyer good title to such shares,
free and clear of all Encumbrances, except for any Encumbrances
resulting from any action taken or omitted to be taken by or on behalf
of Buyer.
(iv) No Transferred Subsidiary holds any direct or indirect
equity interest in any other partnership, firm, corporation, limited
liability company, association, trust, unincorporated organization or
entity, or any syndicate or group that would be deemed to be a Person
under Section 13(d)(3) of the United States Securities Exchange Act of
1934, as amended ("PERSON"), except for another Transferred Subsidiary.
(e) ENTIRE BUSINESS. Upon consummation of the transactions
contemplated by this Agreement, Buyer will acquire, or will acquire the legally
enforceable right to use, all the properties and assets included in the Assets,
and the properties and assets of the Transferred Subsidiaries and such
properties, assets and the rights acquired by Buyer, together with the services
to be provided to, and other rights of, Buyer under the Buyer License Agreement
and the Transition Agreements, shall be sufficient for Buyer to conduct the
Analytical Instruments Business in the same manner as it is currently conducted,
except, in each case, as may be affected by circumstances applicable to Buyer
that would not be applicable to any third party purchaser of the Analytical
Instruments Business.
(f) TITLE TO PROPERTIES. The Asset Sellers and Transferred
Subsidiaries are, and immediately prior to the Closing will be, the true and
lawful owner of the Assets and the assets and properties of the Transferred
Subsidiaries, and will have the right to, and at the Closing shall, sell and
transfer to Buyer at Closing good, record and marketable title to the Assets,
free and clear of all liens, pledges, charges, encumbrances and equities of any
kind affecting either the Assets or the assets and properties of the Transferred
Subsidiaries (collectively, "ENCUMBRANCES"), except (A) as set forth in Section
3.1(f) of the Seller Schedule; (B) as disclosed in the Financial Information;
(C) liens for Taxes, assessments and other governmental charges not yet due and
payable but not delinquent, or being contested in good faith by appropriate
proceedings; (D) mechanics', workmen's, repairmen's, warehousemen's, carriers'
or other like liens arising or incurred in the Ordinary Course of Business,
original purchase price conditional sales contracts and equipment leases with
third parties entered into in the Ordinary Course of Business which,
individually or in the aggregate, would not materially adversely affect the use
or value of such assets or properties; (E) with respect to real property, (1)
easements, quasi-easements, licenses, covenants, rights-of-way and other similar
restrictions, including, without limitation, any other agreements, conditions or
restrictions which would be shown by a current title report or other similar
report or listing, (2) any conditions that may be shown by a current survey,
title report or physical inspection and (3) zoning, building and other
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similar restrictions which in the case of (1), (2) and (3) individually or in
the aggregate, would not materially adversely affect the use or value of such
assets or properties; and (F) liens, charges or other encumbrances which,
individually or in the aggregate, would not materially adversely affect the use
or value of such assets or properties (collectively, "PERMITTED ENCUMBRANCES")
or Encumbrances resulting from any action taken or omitted to be taken by or on
behalf of Buyer.
(g) FINANCIAL INFORMATION. Seller has delivered to Buyer true,
complete and correct copies of certain historical results of operations and
statements of assets and liabilities relating to the Analytical Instruments
Business listed in Section 3.1(g) of the Seller Schedule (the "FINANCIAL
INFORMATION"), including the Combined Statement of Net Assets to Be Sold of the
Analytical Instruments Business as of June 30, 1998 (the "1998 STATEMENT OF NET
ASSETS") and the related Combined Statements of Operations and Cash Flows of the
Analytical Instruments Business for the three years ended June 30, 1998,
together in each case with the notes thereto and the report thereon of
PricewaterhouseCoopers, LLP (collectively, the "1998 FINANCIAL STATEMENTS") and
the unaudited Combined Statement of Net Assets to Be Sold of the Analytical
Instruments Business as of January 29, 1999 (the "1999 STATEMENT OF NET ASSETS")
and the related unaudited Combined Statement of Operations of the Analytical
Instruments Business for the seven months ended January 29, 1999, together in
each case with the notes thereto (collectively, the "1999 FINANCIAL
STATEMENTS"). Subject to any qualifications, assumptions or other limitations
expressly set forth in any of the Financial Information or any notes thereto,
except as disclosed in Section 3.1(g) of the Seller Schedule: (i) the Financial
Information (A) has been prepared in accordance with the books of account and
other financial records of the Analytical Instruments Business, (B) has been
prepared in conformity with accounting principles generally accepted in the
United States of America ("U.S. GAAP") and (C) fairly presents in all material
respects the information that purports to be presented therein; (ii) after
giving effect to the adjustments described in Section 3.1(g) of the Seller
Schedule, the 1998 Financial Statements fairly present the combined financial
position of the Analytical Instruments Business as of June 30, 1998 and the
combined results of its operations for the three years then ended; and (iii) the
1999 Financial Statements fairly present the combined financial position of the
Analytical Instruments Business as of January 29, 1999 and the combined results
of its operations for the seven months then ended, and, subject to the
adjustments described in Section 3.1(g) of the Seller Schedule, have been
prepared in accordance with the accounting principles, methods, practices,
allocation methodologies and estimation methodologies used to prepare the 1998
Financial Statements.
(h) ABSENCE OF UNDISCLOSED LIABILITIES ETC.. As of the date of
this Agreement there are, and as of the Closing Date there will be, no
liabilities or obligations of the Analytical Instruments Business of any nature,
whether fixed, contingent, accrued or otherwise, liquidated or unliquidated, and
whether due or to become due, except (i) liabilities set forth in or otherwise
disclosed in Section 3.1(h) of the Seller Schedule, (ii) liabilities reflected
or reserved against in the 1999 Statement of Net Assets or disclosed in the
notes thereto, (iii) liabilities and obligations under Material Contracts to
which a Transferred Subsidiary is a party (except for liabilities and
obligations resulting from any breach thereof by the Company); (iv) liabilities
and obligations under any Material Contract which is part of the Assets (except
for any liabilities or obligations
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resulting from any breach thereof by any Asset Seller), (v) and Contracts
entered into in the Ordinary Course of Business not required to be included in
Section 3.1(s)(i) of the Seller Schedule, (vi) liabilities and obligations which
have arisen in the Ordinary Course of Business since January 29, 1999 (none of
which, individually or in the aggregate, has had a Seller Material Adverse
Effect) and (vii) other liabilities not exceeding $6,000,000 in the aggregate.
(i) ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the date of
the 1998 Financial Statements, except as set forth in Section 3.1(i) of the
Seller Schedule, neither Seller nor any Subsidiary, with respect to the
Analytical Instruments Business, has:
(A) incurred any liability for or in respect of
borrowed money in excess of $1 million in the aggregate, except current
liabilities incurred, and liabilities under Contracts entered into, in
the Ordinary Course of Business, or Indebtedness which is an Excluded
Liability or Indebtedness for which a post-Closing adjustment will be
made pursuant to Section 2.6;
(B) purchased any shares of capital stock or other
equity securities of any party unaffiliated with Seller that would be
set forth, summarized or described in the Assets (and no Transferred
Subsidiary has purchased any such shares or securities);
(C) mortgaged, pledged or subjected to any material
claim any material portion of the Assets or any material portion of the
assets of any Transferred Subsidiary, other than Permitted
Encumbrances;
(D) acquired or sold, assigned, transferred or
otherwise disposed of a material amount of Assets or any material
amount of the assets of any Transferred Subsidiary, except in each case
in the Ordinary Course of Business;
(E) sold, assigned, licensed, sublicensed or
transferred any material Intellectual Property included in the Assets
(provided that all Intellectual Property set forth, summarized and/or
described in Section 1.2(a) of the Seller Schedule shall be
automatically deemed material for purposes of this paragraph (E)) or
any material Intellectual Property of any Transferred Subsidiary,
except for licenses of Intellectual Property in the Ordinary Course of
Business in conjunction with product sales;
(F) made any single capital expenditure or commitment
therefor other than as provided in the 1999 Budget previously provided
to Buyer;
(G) made any change in compensation of any member of
senior management (or employee of similar stature) except for increases
which are in the Ordinary Course of Business;
(H) materially changed its credit policy as to sale
of inventories or collection of receivables;
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(I) entered into any joint venture, partnership or
similar arrangement;
(J) materially amended, modified or terminated any
material contract, understanding, commitment or agreement other than in
the Ordinary Course of Business, except for any such item that
terminated in accordance with its terms;
(K) authorized or issued any recall notice for any of
its products which has had or would reasonably be expected to have,
individually or in the aggregate, a Seller Representation Adverse
Effect;
(L) received notice of any warranty claim (other than
in the Ordinary Course of Business) or any products liability claim
which has had or which would reasonably be expected to have,
individually or in the aggregate, a Seller Representation Adverse
Effect;
(M) changed its accounting methods, principles or
practices, other than as required by U.S. GAAP; or
(N) agreed to do any of the things listed in clauses
(A) through (M) of this Section 3.1(i).
(j) LEGAL PROCEEDINGS. (i) Except as described in Section
3.1(j) of the Seller Schedule, as of the date of this Agreement there is no
claim, action, suit, arbitration, mediation or proceeding ("Action") by or
before any government, governmental, statutory, regulatory or administrative
authority, agency, body or commission or any court, tribunal, or judicial or
arbitral body whether federal, state, provincial, local or foreign
("GOVERNMENTAL AUTHORITY") pending or, to the knowledge of the Company,
contemplated or threatened against the Company or the Analytical Instruments
Business, that would reasonably be expected to have, individually or in the
aggregate, a Seller Representation Adverse Effect or prevent or materially delay
the consummation by Seller or Buyer of the transactions contemplated by this
Agreement. To the knowledge of the Company, none of Seller, any Subsidiary or
any of the assets of the Analytical Instruments Business is subject to any
Governmental Order having, individually or in the aggregate, a Seller
Representation Adverse Effect.
(ii) There is no outstanding (A) injunction, decree,
judgment, award, fine or penalty by any court, arbitration panel,
industrial tribunal or Governmental Authority against or affecting the
Analytical Instruments Business, the Assets or the assets of the
Transferred Subsidiaries or (B) writ or order of any such entity
against or affecting the Analytical Instruments Business, the Assets or
the assets of the Transferred Subsidiaries, which has had or would
reasonably be expected to have, either individually or in the
aggregate, a Seller Representation Adverse Effect.
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(k) COMPLIANCE WITH LAWS; CERTAIN REGULATORY MATTERS. (i) The
Analytical Instruments Business has been and is currently being conducted in
compliance in all respects with all federal, state, provincial, local or foreign
laws and orders of any Governmental Authority applicable to the Analytical
Instruments Business (including, without limitation, the U.S. Foreign Corrupt
Practices Act and the U.S. Occupational Safety and Health Act and regulations
thereunder) except in such cases where non-compliance, either individually or in
the aggregate, would not result in a Seller Representation Adverse Effect, and
neither Seller nor any Subsidiary has received any written notice to the effect
that the Analytical Instruments Business is not in compliance with any
applicable law or order of any Governmental Authority where non-compliance,
either individually or in the aggregate, would result in a Seller Representation
Adverse Effect. Seller and each Subsidiary has filed with the proper authorities
all statements and reports required by all applicable laws relating to the
Analytical Instruments Business, the Assets or the Transferred Subsidiaries
except in such cases where the failure to so file would not, either individually
or in the aggregate, be expected to result in a Seller Representation Adverse
Effect.
(ii) No Transferred Subsidiary nor, in connection with the
Analytical Instruments Business, any Asset Seller is, or since January
1, 1996 has been, suspended or debarred from bidding on contracts or
subcontracts with any Governmental Authority; no such suspension or
debarment has been initiated or, to the knowledge of the Company,
threatened in writing; and the consummation of the transactions
contemplated by this Agreement will not result in any such suspension
or debarment (assuming that no such suspension or debarment will result
from the identity of Buyer). Except as set forth in Section 3.1(k) of
the Seller Schedule, no Transferred Subsidiary or, in connection with
the Analytical Instruments Business, Asset Seller has, since January 1,
1996, been audited or (to the knowledge of the Company) investigated or
is now being audited or, to the knowledge of the Company, has been
threatened in writing with an investigation by the U.S. Government
Accounting Office, the U.S. Department of Defense or any of its
agencies, the Defense Contract Audit Agency, the U.S. Department of
Justice, the Inspector General of any U.S. Governmental Authority, any
similar agencies or instrumentalities of any foreign Governmental
Authority, or any prime contractor with a Governmental Authority except
as would not be expected to result in a Seller Representation Adverse
Effect. To the knowledge of the Company, there is no valid basis for
(A) the suspension or debarment of any Transferred Subsidiary or, in
connection with the Analytical Instruments Business, Asset Seller, from
bidding on contracts or subcontracts with any Governmental Authority or
(B) any claim pursuant to any audit by any Governmental Authority in
connection with any contracts or subcontracts relating to the provision
of products or services to or for the benefit of a Governmental
Authority except as would not reasonably be expected to have a Seller
Representation Adverse Effect. No Transferred Subsidiary or, in
connection with the Analytical Instruments Business, Asset Seller, has
any agreements, contracts or commitments which require it to obtain or
maintain a security clearance with any Governmental Authority.
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(l) LABOR CONTROVERSIES. (i) No Transferred Subsidiary or, in
the conduct of the Analytical Instruments Business, Asset Seller, has, since
January 1, 1996, experienced nor, to the knowledge of the Company, is there
currently threatened, any (A) work stoppages or strikes, (B) grievance,
arbitration proceedings or proceedings before any industrial tribunal arising
out of collective bargaining agreements, national labor union agreements or
otherwise covering employees of the Analytical Instruments Business, or (C)
unfair labor practice complaints, which would have a Seller Representation
Adverse Effect. To the knowledge of the Company, there is no organizational
effort presently being made or threatened by or on behalf of any labor union or
any formal collective bargaining agreement being negotiated with respect to any
employees of the Analytical Instruments Business.
(ii) Section 3.1(l) of the Seller Schedule sets forth a
true, complete and correct list of each collective bargaining agreement
or other labor union contract applicable to persons employed in the
Analytical Instruments Business other than statutory arrangements under
applicable foreign laws and no other collective bargaining agreement is
being negotiated by the Company. Except as set forth in Section 3.1(l)
of the Seller Schedule, no Asset Seller or Transferred Subsidiary
recognizes (expressly or impliedly) any trade union.
(m) INVENTORIES; RECEIVABLES. (i) The inventories of the
Analytical Instruments Business are reflected in the Financial Statements at the
lower of cost (determined on the first-in first-out method) or market, in
conformity with U.S. GAAP.
(ii) All accounts receivable of the Analytical Instruments
Business reflected in the Financial Statements have arisen from bona
fide transactions in accordance with the requirements with U.S. GAAP
and are stated therein net of reserves for doubtful accounts in
accordance with the requirements of U.S. GAAP.
(n) INTELLECTUAL PROPERTY. (i) The Intellectual Property set
forth, summarized and/or described on Section 1.2(a) of the Seller Schedule,
together with the Intellectual Property set forth, summarized and/or described
in Section 4.8(a) of the Seller Schedule (to be licensed to Buyer pursuant to
the Buyer License Agreement), constitute all the Intellectual Property necessary
to conduct the Analytical Instruments Business as currently conducted. In the
event any Intellectual Property is erroneously included in, or omitted from,
these schedules, the parties agree to correct such schedules prior to the
Closing, so that the final schedules reflect the parties= true intent regarding
the proper allocation of Intellectual Property between them.
(ii) Upon execution and delivery by the Asset Sellers to Buyer
of the instruments of conveyance referred to in Section 1.4 and the
Buyer License Agreement, and subject to Section 2.5, each item of
Intellectual Property owned or used by the Asset Sellers and the
Transferred Subsidiaries and necessary to conduct the Analytical
Instruments Business as currently conducted as of the Closing will be
owned or available
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for use by Buyer or the Transferred Subsidiaries on substantively
identical terms and conditions immediately following the Closing. Each
of the Asset Sellers and the Transferred Subsidiaries has taken
reasonable measures to protect the proprietary nature of such
Intellectual Property and to maintain in confidence the trade secrets,
know-how and confidential information that it owns or uses and is
necessary to conduct the Analytical Instruments Business as currently
conducted. No other Person has any rights to any of the material
Intellectual Property owned or used by the Asset Sellers or the
Transferred Subsidiaries that is necessary to conduct the Analytical
Instruments Business as currently conducted, except that the
Intellectual Property identified in Section 1.2(a) of the Seller
Schedule is owned by the respective owners identified therein. To the
knowledge of the Company, no Person is infringing, violating or
misappropriating any of the material Intellectual Property to be
conveyed to Buyer at Closing.
(iii) To the Company's knowledge and except as set forth in
Section 3.1(n)(iii) of the Seller Schedule, none of the activities of
the Analytical Instruments Business as currently conducted materially
infringes or violates, or constitutes a material misappropriation of,
any Intellectual Property of any other Person (including, without
limitation, Seller or any Subsidiary). Except as disclosed in Section
3.1(n)(iii) of the Seller Schedule, no Transferred Subsidiary or Asset
Seller has received since January 1, 1996, any complaint, claim or
notice in writing alleging any such infringement, violation or
misappropriation with respect to any Intellectual Property to be
conveyed or licensed to Buyer pursuant to this Agreement or the Buyer
License Agreement, which complaint, claim or notice has not been
resolved to the mutual satisfaction of the parties involved in a manner
which involves no future obligations of Seller or any Subsidiary,
except to the extent any of the foregoing would not reasonably be
expected to result in a Seller Representation Adverse Effect.
(iv) Except as disclosed in Section 3.1(n)(iv) of the Seller
Schedule, with respect to each item of Intellectual Property necessary
to conduct the Analytical Instruments Business as currently conducted
and owned by a third party and used by a Transferred Subsidiary or, in
the conduct of the Analytical Instruments Business, an Asset Seller:
(A) the license, sublicense or other agreement
covering such item is, to the Company's knowledge, legal, valid,
binding, enforceable and in full force and effect with respect to the
Asset Seller or Transferred Subsidiary which is a party thereto;
(B) such license, sublicense or other agreement to
which an Asset Seller is a party is assignable by the Asset Seller to
Buyer without the consent or approval of or any payment to any party;
(C) the consummation of the transactions contemplated
herein will not conflict with, result in a violation or breach of or
constitute a default under (or would
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result in a violation, breach or default with the giving of notice or
the passage of time or both) any such license, sublicense or other
agreement which violation, breach or default (together with all other
such violations, breaches or defaults) would have a Seller
Representation Adverse Effect;
(D) no Asset Seller, Transferred Subsidiary or, to
the Company's knowledge, any other party is in material breach or
default under any such license, sublicense or other agreement, and to
the Company's knowledge, no event has occurred which, with notice or
the passage of time or both, would constitute such a breach or default
or permit a termination, modification or acceleration thereunder;
(E) the underlying item of Intellectual Property is
not subject to any outstanding order of any Governmental Authority; and
(F) no Asset Seller or Transferred Subsidiary has
agreed, except in the Ordinary Course of Business in conjunction with
product sales, to indemnify any Person or entity for or against any
interference, infringement, misappropriation or other conflict with
respect to such item.
(o) GOVERNMENT LICENSES, PERMITS AND RELATED APPROVALS. (i)
Except as described in Section 3.1(o) of the Seller Schedule, the Asset Sellers
and the Transferred Subsidiaries (A) currently hold all governmental licenses,
permits and authorizations, including, without limitation, all permits required
under Environmental Laws necessary for the current use, occupancy and operation
of the Analytical Instruments Business (the "MATERIAL PERMITS"), (B) are in
compliance in all material respects with all such Material Permits and (C) have
made all required filings with, or notifications to, all Governmental
Authorities pursuant to applicable requirements of all laws applicable to the
Analytical Instruments Business except for such failures to hold, be in
compliance with or make filings or notifications that individually or in the
aggregate would not have a Seller Representation Adverse Effect.
(ii) Each Material Permit is in full force and effect and no
suspension or cancellation of any Material Permit has been, to the
knowledge of the Company, threatened in writing except for such
suspensions or cancellations as would not have a Seller Representation
Adverse Effect. Except as described in Section 3.1(o) of the Seller
Schedule, and except in each case for any Material Permits listed in
Section 1.2(h) of the Seller Schedule , all such Material Permits
(whether held by an Asset Seller or Transferred Subsidiary) will
continue to be in full force and effect immediately following the
Closing for the benefit of Buyer in accordance with the terms thereof
as in effect immediately prior to the Closing, except to the extent
that the failure to be in full force or effect will not have a Seller
Representation Adverse Effect. To the knowledge of the Company, there
is no proposed or contemplated change in the terms of any Material
Permit which would, individually or in the aggregate, have a Seller
Representation Adverse Effect.
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(p) EMPLOYEE BENEFIT PLANS. (i) Section 3.1(p) of the Seller
Schedule sets forth a true, complete and correct list of each "employee benefit
plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act
("ERISA")) and all other employee benefit, bonus, incentive, deferred
compensation, stock purchase, stock option, severance, change in control and
fringe benefit plans (other than any employment or personnel policy, practice or
procedure) (hereinafter, "BENEFIT PLANS") maintained or contributed to by
Seller, any Transferred Subsidiary or any ERISA Affiliate for current or former
employees (other than Foreign Employees) of the Analytical Instruments Business
(collectively, the "SELLER BENEFIT PLANS"). For purposes of this Agreement,
"ERISA AFFILIATE" is any entity which is or was at any relevant time, (A) a
member of a controlled group of corporations (as defined in Section 414(b) of
the Code), or (B) a group of trades or businesses under common control (as
defined in Section 414(c) of the Code). Section 3.1(p) of the Seller Schedule
separately identifies those Seller Benefit Plans that are maintained exclusively
for the benefit of employees of one or more Transferred Subsidiaries. With
respect to each Seller Benefit Plan, Seller has made available to Buyer a true,
complete and correct copy of the following, if any: (1) the most recent summary
plan description for each Seller Benefit Plan for which a summary plan
description is required, (2) such Seller Benefit Plan, and each trust agreement
relating to such Seller Benefit Plan, (3) in the case of each Seller Benefit
Plan applicable to United States Employees, the most recent annual reports (Form
5500) filed with the Internal Revenue Service ("IRS"), (4) the most recent
determination letter issued by the IRS with respect to any Seller Benefit Plan
intended to be qualified under Section 401(a) of the Code, (5) the most recent
financial statement for each Seller Benefit Plan, and (6) the most recent
actuarial statement for each Seller Benefit Plan that is a defined benefit plan.
(ii) With respect to any Benefit Plans maintained by the
Seller, any Transferred Subsidiary or an ERISA Affiliate, no event has
occurred and there exists no condition or set of circumstances in
connection with which the Company could be subject to any fine,
penalty, tax or any other liability under the terms of such Benefit
Plans, ERISA, the Code, or any other applicable law which would,
individually or in the aggregate, have a Seller Representation Adverse
Effect.
(iii) Except as set forth in Section 3.1(p) of the Seller
Disclosure Schedule, there are no inquiries or investigations by the
IRS, the U.S. Department of Labor, or the Pension Benefit Guaranty
Corporation, no termination proceedings and no actions, suits or claims
(other than claims for benefits in the Ordinary Course of Business)
pending or, to the knowledge of the Company, threatened against any
Seller Benefit Plan (or any Transferred Subsidiary with respect
thereto) or the assets thereof which would have a Seller Representation
Adverse Effect.
(iv) The Company is in full compliance with the terms of each
of the Seller Benefit Plans and all applicable laws relating to the
Seller Benefit Plans, including, without limitation, ERISA, the Code
and the Health Insurance Portability and Accountability Act of 1996,
all required filings have been made and all required
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contributions have been made to the Seller Benefit Plans, except where
a failure to comply, file or contribute, would result in a Seller
Representation Adverse Effect.
(v) Neither Seller, any ERISA Affiliate nor any Transferred
Subsidiary has any liability which remains unsatisfied to a
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA (a
"MULTIEMPLOYER PLAN"), in an amount which would have a Seller
Representation Adverse Effect. None of the Seller Benefit Plans is a
Multiemployer Plan and no Seller, ERISA Affiliate nor Transferred
Subsidiary has been required to contribute to, or sponsor, any
Multiemployer Plan after 1980.
(vi) The Seller Benefit Plans that are intended to be
qualified under Section 401(a) of the Code have received determination
letters from the Internal Revenue Service to the effect that such
Seller Benefit Plans are qualified and the plans and the trusts related
thereto are exempt from federal income taxes under Sections 401(a) and
501(a), respectively, of the Code and, to the knowledge of Seller, it
has received no notice of an act or omission which has occurred since
the date of the last favorable determination letter issued with respect
to a Seller Benefit Plan which would reasonably be expected to result
in the revocation of such Benefit Plan's qualified status.
(vii) Other than as disclosed in Section 3.1(p) of the Seller
Schedule, no agreement or obligation exists to increase benefits or to
materially increase the employer cost of providing benefits under any
Seller Benefit Plan, in each case to a level above that in effect as of
the date of this Agreement, or to adopt any new Seller Benefit Plan,
where the increased liability in the aggregate would have a Seller
Representation Adverse Effect.
(viii) Except as set forth in Section 3.1(p) of the Seller
Schedule, there is no (A) agreement, plan or arrangement under which
any Person may receive payments from Seller or any Subsidiary with
respect to the Analytical Instruments Business, that may be subject to
the tax imposed by Section 4999 of the Code or included in the
determination of such Person's "parachute payment" under Section 280G
of the Code; and (B) agreement or plan binding on any Transferred
Subsidiary, any of the benefits of which will be increased, or the
vesting of the benefits of which will be accelerated, by the occurrence
of any of the transactions contemplated by this Agreement or the value
of any of the benefits of which will be calculated on the basis of any
of the transactions contemplated by this Agreement, which in the
aggregate would result in liability that would have a Seller
Representation Adverse Effect.
(ix Except as would not, individually or in the aggregate,
have a Seller Representation Adverse Effect, with respect to each
Seller Benefit Plan that is applicable to Foreign Employees (each, a
"FOREIGN SELLER PLAN"), each Foreign Seller Plan has been maintained
and operated in compliance with the terms thereof and of the applicable
law
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of the foreign jurisdiction (including any funding, contribution or
accounting requirements).
(q) ENVIRONMENTAL MATTERS. Except as would not have,
individually or in the aggregate, a Seller Material Adverse Effect, and except
as set forth in Section 3.1(q) of the Seller Schedule:
(i) Each Asset Seller and each Transferred Subsidiary is in
compliance in all material respects with all Environmental Laws
regarding the Analytical Instruments Business. There is no pending or,
to the knowledge of the Company, threatened Action, civil or criminal
litigation, written notice of violation, formal administrative
proceeding or investigation, inquiry or information request by any
Governmental Authority under any Environmental Law involving or
relating to the Analytical Instruments Business. As used herein, the
terms "release," "hazardous substance" and "environment" shall have the
meaning set forth in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"). For
purposes of this Agreement, "ENVIRONMENTAL LAW" means any applicable
U.S. federal, state, foreign or local law, ordinance, code or statute,
or any rule or regulation implementing such law or statute and any case
law or administrative decision, in each case existing and in effect on
the date hereof, relating to pollution or protection of the
environment, including without limitation any statute or regulation
pertaining to (A) treatment, storage, disposal, generation or
transportation of Materials of Environmental Concern; (B) air or water
or noise; (C) groundwater and soil contamination; (D) the release or
threatened release into the environment of hazardous substances, or
solid or hazardous waste, including without limitation emissions,
discharges, injections, spills, escapes or dumping of Materials of
Environmental Concern; (E) the protection of wildlife, marine
sanctuaries and wetlands, including without limitation all endangered
and threatened species; (F) tanks, vessels and containers; (G)
abandoned, disposed or discarded barrels, tanks, vessels, containers
and other closed receptacles; and (H) manufacture, processing, use,
distribution, treatment, storage, disposal, transportation or handling
of Materials of Environmental Concern. For purposes of this Agreement,
"MATERIALS OF ENVIRONMENTAL CONCERN" means any pollutants or
contaminants, hazardous substances (as such terms are defined under
CERCLA), solid wastes and hazardous wastes (as such terms are defined
under the Resource Conservation and Recovery Act, as amended),
radioactive materials, toxic materials, oil or petroleum and petroleum
products.
(ii) In connection with the Analytical Instruments Business,
there has been no release of any Materials of Environmental Concern in
amounts above reportable quantities or which otherwise resulted in an
obligation to report to a Governmental Authority under applicable
Environmental Laws into the environment at or from any parcel of real
property or any facility (i) currently owned, operated or controlled by
any Asset Seller or Transferred Subsidiary or (ii) formerly owned,
operated or controlled by
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Seller or any Subsidiary in the conduct of the Analytical Instruments
Business during the period of its ownership, operation or control.
(iii) All material and non-privileged documents relating to
compliance with Environmental Laws, including those relating to
releases or threatened releases to the environment and environmental
reports, investigations and audits relating to premises currently owned
or operated by any Transferred Subsidiary or any Asset Seller in the
conduct of the Analytical Instruments Business, whether conducted by or
on behalf of any Transferred Subsidiary or Asset Seller, or a third
party, and whether done at the initiative of the Company or directed by
a Governmental Authority or other third party in the possession of the
Company have been provided or made available to Buyer.
(r) TAX. (i) (A) Each Transferred Subsidiary has timely filed,
or been included in a consolidated, combined or unitary Tax Return that was
timely filed, all Tax Returns required to be filed by it, taking into account
any extension of time to file granted to, or obtained on behalf of, Seller or
any Subsidiary, (B) all Taxes shown to be payable on such Tax Returns have been
or will be timely paid and (C) all Taxes owed by each Transferred Subsidiary
(whether or not shown on any Return) have been (or will be) paid when due or an
adequate reserve therefor will be included on the Closing Balance Sheet.
(ii) (A) Except as set forth in Section 3.1(r)(ii) of the
Seller Schedule (1) the income Tax Returns of each Transferred
Subsidiary (and any consolidated, combined or unitary group of which
such Transferred Subsidiary is a member) have been audited and settled,
or are closed to assessment, for all years through the fiscal year
ending June 30, 1997; (2) there is no written claim or assessment
pending against any Transferred Subsidiary for any alleged deficiency
in Taxes, and, to the knowledge of the Company, there is no audit or
investigation with respect to any liability of any Transferred
Subsidiary for Taxes; and (3) there are no agreements in effect to
extend the period of limitations for the assessment or collection of
any Tax for which any Transferred Subsidiary may be liable.
(B) Without limiting the generality of the foregoing,
each Transferred Subsidiary has withheld or collected and duly paid all
Taxes required to have been withheld or collected and paid in
connection with amounts paid or owing to or from any employee,
independent contractor, creditor, stockholder or other third party.
(C) None of the Transferred Subsidiaries has filed a
consent under Code Section 341(f) concerning collapsible corporations.
(D) None of the Transferred Subsidiaries has been a
United States real property holding corporation within the meaning of
Code Section 897(c)(2) during the applicable period specified in Code
Section 897(c)(1)(A)(ii).
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(E) None of the Transferred Subsidiaries is liable
for the payment or reimbursement of the Taxes of any other Person
pursuant to any contractual obligation or by operation of law.
(F) Seller or its Affiliates have made valid
elections under Treasury Regulation section 301.7701-3(c) (and such
elections continue to be valid) to treat ▇▇▇▇▇▇-▇▇▇▇▇ Limited (U.K.),
▇▇▇▇▇▇-▇▇▇▇▇ de Argentina S.R.L., ▇▇▇▇▇▇-▇▇▇▇▇ Chile Limitada and
▇▇▇▇▇▇-▇▇▇▇▇ Colombia Limitada as entities which are disregarded as
separate entities from their owners.
(iii) For purposes of this Agreement, (A) "TAX" or "TAXES"
means (1) all taxes, charges, fees, levies, duties, imposts, or other
similar assessments, including income, gross receipts, ad valorem,
premium, value-added, excise, real property, personal property,
windfall profit, sales, use, transfer, stamp, licensing, notary fees,
withholding, employment, payroll, minimum, estimated and franchise
taxes or goods and services taxes imposed by the United States or any
state, local, provincial or foreign government, or any subdivision,
agency, or other similar Person of the United States or any such
government and (2) any interest, fines, penalties, assessments, or
additions to tax resulting from, attributable to, or incurred in
connection with, any such tax or taxes; and (B) "TAX RETURNS" means all
reports, returns, declarations, statements or other information
required to be supplied to a taxing or governmental authority in
connection with Taxes.
(s) MATERIAL CONTRACTS. (i) Set forth in Section 3.1(s)(i) of
the Seller Schedule is a list of each of the following Material Contracts (as
hereinafter defined) as of the date of this Agreement (collectively, the
"MATERIAL AI CONTRACTS"):
(A) each Material Contract relating exclusively to
the Analytical Instruments Business to which any Asset Seller is a
party or by which it is or its Assets are bound;
(B) each Material Contract relating exclusively to
the Analytical Instruments Business to which any Transferred Subsidiary
is a party or by which it is or its property or assets are bound;
(C) each Material Contract relating exclusively to
businesses of the PE Group other than the Analytical Instruments
Business to which any Transferred Subsidiary is a party or by which it
is bound;
(D) each Material Contract relating to both the
Analytical Instruments Business and to other business of the PE Group
to which any Asset Seller is a party or by which it is bound and that
is required to be transferred to Buyer to enable Buyer, after giving
effect to all of the transactions contemplated by this Agreement, to
either conduct
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the Analytical Instruments Business as currently conducted or perform
its obligations under the Transition Agreements; and
(E) each Material Contract included in the Assets
that is an Assumed Liability or that is a liability of a Transferred
Subsidiary.
(ii) As used in this Agreement, a "MATERIAL CONTRACT" means
any Contract: (A) relating to Intellectual Property that generated
revenues of the PE Group in any fiscal year in the Covered Period
exceeding $1,000,000; (B) relating to the provision of information
technology with a contract value exceeding $250,000 at any time during
the Covered Period; (C) with a supplier relating to annual purchases by
the PE Group exceeding $500,000 in any fiscal year in the Covered
Period that (i) has a fixed term, (ii) is not on current market terms,
(iii) relates to a sole source of supply or (iv) involves the supply of
components that are not otherwise readily available; (D) with a
customer relating to annual sales of the PE Group exceeding $1,000,000
in any fiscal year in the Covered Period that has a fixed term or is
not on current market terms; (E) consisting of a lease of real property
by the PE Group requiring annual rental payments exceeding $250,000 in
any fiscal year in the Covered Period; (F) containing covenants
limiting the freedom of the Analytical Instruments Business to engage
in any line of business or to compete with any Person which would apply
to Buyer as acquiror of the AI Business or the Transferred Subsidiaries
after the Closing; (G) granting to any Person any right to distribute
or resell any Analytical Instruments Business product, or to represent
or act as agent for the Analytical Instruments Business in connection
with the distribution or sale of any Analytical Instruments Business
product involving annual sales in excess of $1 million in any fiscal
year in the Covered Period, that, in any case, cannot be canceled by
the Analytical Instruments Business within 180 days, without material
premium or penalty; (H) establishing any joint venture, strategic
alliance, partnership or other equity arrangement that is material to
the Analytical Instruments Business; or (I) under which the
consequences of a default or termination would have a Seller Material
Adverse Effect exceeding $1 million, or which gives or could give any
other party thereto the right to cause the transactions contemplated by
this Agreement to be rescinded following consummation, or which
involves more than $1 million in the aggregate. For purposes of this
Agreement, the "COVERED PERIOD" shall mean each of the fiscal years in
the four-year period ending June 30, 1999, with amounts for the fiscal
year ending June 30, 1999 being determined by reference to Seller=s
budget for such fiscal year.
(iii) Except as specified in Section 3.1(s)(iii) of the Seller
Schedule, no Transferred Subsidiary or Asset Seller is (and, to the
knowledge of the Company as of the date hereof, no other party is), in
material breach or violation of, or material default under, any of the
Contracts which individually or in the aggregate would have a Seller
Representation Adverse Effect and no event has occurred which with
notice or the lapse of time would constitute a material breach or
violation of, or material default under, or permit termination or
acceleration thereof. Except as specified in Section 3.1(s)(iii) of
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the Seller Schedule, each Material AI Contract is a valid agreement,
arrangement or commitment of Seller or any Subsidiary that is a party
thereto, enforceable against Seller or such Subsidiary, as the case may
be, in accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing and such
Material AI Contracts will continue to be valid and binding obligations
immediately following the Closing.
(t) RECALLS. Except as set forth in Section 3.1(t) of the
Seller Schedule, to the knowledge of the Company, there is no basis for the
recall, withdrawal or suspension of any approval by any Governmental Authority
with respect to any Analytical Instruments Business product produced in the
Covered Period except as would not individually or in the aggregate have a
Seller Representation Adverse Effect.
(u) CERTAIN BUSINESS RELATIONSHIPS. Except as set forth in
Section 3.1(u) of the Seller Schedule or as provided in the Transition
Agreements, no Affiliate of Seller (other than any Asset Seller relating to
Assets being conveyed to Buyer hereunder, or any Transferred Subsidiary) (i)
owns any property or right, tangible or intangible, which is necessary to
conduct the Analytical Instruments Business as currently conducted or is
reflected in the 1998 Financial Statements, (ii) has any claim or cause of
action against the Assets or any Transferred Subsidiary other than with respect
to the provision of goods or services to the Analytical Instruments Business in
the Ordinary Course of Business, or (iii) other than with respect to the
provision of goods or services by the Analytical Instruments Business in the
Ordinary Course of Business, owes any money to any Transferred Subsidiary or, in
connection with the Analytical Instruments Business, to any Asset Seller. For
purposes of this Agreement, "AFFILIATE" means, with respect to any specified
Person, any other Person that, directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified Person.
(v) BOOKS AND RECORDS. The books, records, accounts, ledgers
and files of each Asset Seller with respect to the Analytical Instruments
Business, and each Transferred Subsidiary, have been maintained in all material
respects in accordance with good business and bookkeeping practices. The minute
books and other similar records of each Transferred Subsidiary of actions taken
at any meetings of such Subsidiary's stockholders, Board of Directors, Managing
Board, Supervisory Board or any committee thereof and of all written consents
executed in lieu of the holding of any such meeting are true and complete in all
material respects. The stock certificate books, stock ledgers and/or share
registers of each Transferred Subsidiary are true, complete and correct in all
material respects.
(w) CUSTOMERS AND SUPPLIERS. Except as disclosed in Section
3.1(w) of the Seller Schedule, during the period from July 1, 1998 through the
date of this Agreement: no
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material supplier of the Analytical Instruments Business has informed the
Company in writing that it will stop, or materially decrease the rate of,
supplying materials, products, or services to the Analytical Instruments
Business; and no material customer of the Analytical Instruments Business has
informed the Company in writing that it will stop, or materially decrease the
rate of, buying materials, products or services from the Analytical Instruments
Business.
(x) YEAR 2000. (i) The Company is conducting a program of
assessment, and remediation where appropriate of all of the (A) applicable
Company internal systems that have been identified by appropriate personnel as
material to the Analytical Instruments Business, including, without limitation,
computer hardware systems, software applications, firmware, equipment containing
embedded microchips and other embedded systems, but excluding any of the
foregoing that individual Company employees have personally installed on their
own computers ("INTERNAL SYSTEMS"), and (B) software, hardware, firmware and
other technology which have been identified by appropriate personnel as
constituting a material part of the products that are currently or will be
manufactured by, or services that are currently or will be sold by, or are under
a warranty that covers Year 2000 Compliance from, the Analytical Instruments
Business ("EXTERNAL SOFTWARE") (the "YEAR 2000 PROGRAM").
(ii) All of the Internal Systems and External Software will be
Year 2000 Compliant (as defined herein) to the extent that the arrival
of the Year 2000 will not create a material disruption to the
Analytical Instruments Business or cause a material defect in the
products currently manufactured by or the services currently sold by
the Analytical Instruments Business, and/or a reasonable workaround
will be identified to avoid such disruption or defect, provided that
Buyer continues to support the Year 2000 Program in accordance with the
Company=s current plans, including but not limited to requirements for
manpower, funding and other resources.
(iii) As part of the Year 2000 Program, written assurances of
Year 2000 Compliance are now being sought by the Company from
suppliers, vendors and service providers that have been identified by
appropriate personnel as material to its operations. Except as
disclosed in Section 3.1(x) of the Seller Disclosure Schedule, to the
knowledge of the Company, there is no failure to be Year 2000 Compliant
of any supplier, vendor or service provider that has been identified by
appropriate personnel as material to the Analytical Instruments
Business. Nonetheless, there is no assurance that any non-compliant
systems of such parties will become Year 2000 Compliant in a timely
manner, and it is recognized that failure to do so could have a Seller
Material Adverse Effect.
(iv) For purposes of this Agreement, "YEAR 2000 COMPLIANT"
shall mean, with respect to a particular system or item, that:
(A) No value for current date will cause any
interruption in operation, but only through the year 2018;
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(B) Date-based functionality must behave
consistently, and such system or item will calculate, manipulate and
represent dates correctly for the purposes for which they were
intended, for dates prior to, during, and after the year 2000 but only
through the year 2018;
(C) In all interfaces and data storage, the century
in any date from the present through the year 2018 must be specified
either explicitly or by unambiguous algorithms or inferencing rules;
and
(D) Year 2000 must be recognized as a leap year;
provided in each case, that all applications, hardware and other systems used in
conjunction therewith correctly exchange date data with, or provide data to such
system or item and are otherwise Year 2000 Compliant.
(v) With respect to any appropriate remediation to the
Internal Systems or External Software that is required to make them
Year 2000 Compliant to the extent that the arrival of the Year 2000
will not create a material disruption to the Analytical Instruments
Business or cause a material defect in the products currently
manufactured by or the services currently sold by, or under a warranty
that covers Year 2000 Compliance from, the Analytical Instruments
Business, and the testing of the foregoing, as so remediated, (i) a
substantial amount of the foregoing is reasonably expected to be
completed by September 1, 1999 and (ii) all of the foregoing is
reasonably expected to be completed by December 31, 1999, provided that
Buyer continues to support the Year 2000 Program in accordance with the
Company=s current plans, including but not limited to requirements for
manpower, funding and other resources.
(y) ACQUISITIONS. Section 3.1(y) of the Seller Schedule sets
forth a complete list, in reasonable detail, of all assets comprising a separate
line of business or company acquisitions outside of the Ordinary Course of
Business undertaken with respect to the Analytical Instruments Business since
July 1, 1996 and involving an aggregate purchase price in excess of $2,500,000.
(z) CERTAIN FEES. With the exception of fees and expenses
payable to Warburg Dillon Read LLC ("WDR"), which shall be paid by Seller,
neither Seller nor any of the Subsidiaries nor any of their respective officers,
directors or employees, on behalf of Seller or such Subsidiaries, has employed
any broker or finder or incurred any other liability for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
hereby.
(aa) REAL ESTATE. (i) Sections 1.2(b) and 3.1(aa) of the
Seller Schedule set forth a true, complete and correct list and description of
the location of all real property ("OWNED
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REAL PROPERTY") owned in fee by Seller included in the Assets, or owned in fee
by a Transferred Subsidiary. With respect to each parcel of Owned Real Property:
(A) the owners identified in Sections 1.2(b) and
3.1(aa) of the Seller Schedule have good title to such parcel, free and
clear of all Encumbrances, except for Permitted Encumbrances;
(B) except as set forth in Section 3.1(aa) of the
Seller Schedule, there are no leases, subleases, licenses or agreements
granting to any party or parties the right of use or occupancy of any
portion of such Owned Real Property; and
(C) except as set forth in Section 3.1(aa) of the
Seller Schedule, to Seller's knowledge there are no outstanding options
or rights of first refusal to purchase such parcel, or any portion
thereof or interest therein;
except, in the case of (B) and (C) as would not have a Seller Representation
Adverse Effect.
(ii) Section 3.1(aa) of the Seller Schedule sets
forth a true, complete and correct list of all material real property
leased by an unaffiliated third party to a Transferred Subsidiary or,
in the conduct of the Analytical Instruments Business, to an Asset
Seller (the "LEASED REAL PROPERTY"). Seller has delivered to Buyer
true, complete and correct copies of such leases and subleases (each
as amended to date). With respect to each lease and sublease of Leased
Real Property:
(A) the lease or sublease is legal, valid, binding,
enforceable and in full force and effect with respect to each Asset
Seller and each Transferred Subsidiary which is a party thereto;
(B) except as set forth on Section 3.1(aa) of the
Seller Schedule, (1) each lease or sublease relating to the Leased Real
Property is assignable by the Asset Seller to Buyer without the consent
or approval of or any payment to any party, (2) no lease or sublease to
which a Transferred Subsidiary is a party requires any permission or
consent upon a change in control of such company, (3) all such leases
or subleases (whether the lessee is an Asset Seller or Transferred
Subsidiary) will continue to be legal, valid, binding, enforceable and
in full force and effect immediately following the Closing in
accordance with the terms thereof as in effect immediately prior to the
Closing, and (4) the consummation of the transactions contemplated
herein will not conflict with, result in a material violation or breach
of or constitute a material default under (or would result in such a
violation, breach or default with the giving of notice or the passage
of time or both) any such lease or sublease;
(C) (1) neither any Asset Seller nor any Transferred
Subsidiary is in breach or default in any material respect under any
such lease or sublease, and (2) to
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Seller's knowledge, no event has occurred which, with the giving of
notice or passage of time or both, would constitute such a breach or
default; and
(D) except as set forth on Section 3.1(aa) of the
Seller Schedule, neither any Asset Seller nor any Transferred
Subsidiary has assigned, transferred, conveyed, mortgaged, deeded in
trust or encumbered any interest in the leasehold or subleasehold under
any Leased Real Property and there are no leases, subleases, licenses
or agreements granting to any third party or parties the right of use
or occupancy of any portion of any Leased Real Property.
except in the case of (B), (C) and (D) as would not have a Seller Representation
Adverse Effect.
(bb) NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties contained in this Section 3.1, neither Seller nor
any other Person makes any express or implied representation or warranty on
behalf of Seller or the Subsidiaries.
3.2. REPRESENTATIONS AND WARRANTIES OF BUYER. Except as set
forth in the Buyer Schedule previously delivered to Seller (the "BUYER
SCHEDULE"), Buyer represents and warrants to Seller that the statements
contained in this Section 3.2 are true, complete and correct.
(a) DUE ORGANIZATION; GOOD STANDING AND POWER. Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and has all the requisite corporate power
and authority to own, lease and operate its property and assets and to conduct
its business as currently conducted by it. Buyer has all requisite corporate
power and authority to enter into this Agreement and each of the other
agreements contemplated hereby to be entered into by it and to issue the Note
and to perform its obligations hereunder and thereunder. Buyer is duly
authorized, qualified or licensed to do business as a foreign corporation and is
in good standing in each of the jurisdictions in which its right, title or
interest in or to any of the assets held by it, or the conduct of its business,
requires such authorization, qualification or licensing, except where the
failure to so qualify or to be in good standing would not, individually or in
the aggregate, materially impair the ability of Buyer to perform its obligations
hereunder or under any other agreement contemplated hereby.
(b) AUTHORIZATION AND VALIDITY OF AGREEMENT. The execution,
delivery and performance by Buyer of this Agreement and any other agreements
contemplated hereby, the delivery and issuance of the Note and the consummation
by Buyer of the transactions contemplated hereby and thereby have been duly
authorized by its Board of Directors. No other corporate or stockholder action
is necessary for the authorization, execution, delivery and performance by Buyer
of this Agreement and any other agreements contemplated hereby, the issuance of
the Note and the consummation by Buyer of the transactions contemplated hereby
or thereby. This Agreement has been duly executed and delivered by Buyer and
constitutes a valid and legally binding obligation of Buyer, enforceable against
Buyer in accordance with its terms, subject to (i) the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization,
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moratorium and other similar laws relating to or affecting the enforcement of
creditors' rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied covenant of
good faith and fair dealing. When executed and delivered as provided in this
Agreement and each other agreement contemplated hereby to be executed and
delivered by Buyer and the Note will be a valid and legally binding obligation
of Buyer, enforceable against Buyer in accordance with its terms, subject to (i)
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the enforcement of
creditors' rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied covenant of
good faith and fair dealing.
(c) NO GOVERNMENTAL APPROVALS OR NOTICES REQUIRED; NO CONFLICT
WITH INSTRUMENTS TO WHICH BUYER IS A PARTY. The execution, delivery and
performance of this Agreement and any other agreements contemplated hereby by
Buyer, the issuance of the Note and the consummation by Buyer of the
transactions contemplated hereby and thereby (i) will not violate (with or
without the giving of notice or the lapse of time or both), or require any
consent, approval, filing or notice under, any provision of any law, rule or
regulation, court order, judgment or decree applicable to Buyer, except for such
violations the occurrence of which, and such consents, approvals, filings or
notices the failure of which to obtain or make, would not materially impair the
ability of Buyer to perform its obligations under this Agreement and the other
agreements contemplated hereby and (ii) will not conflict with, or result in the
breach or termination of any provision of, or constitute a default under, or
result in the acceleration of the performance of the obligations of Buyer under,
the charter or by-laws of Buyer or any indenture, mortgage, deed of trust,
lease, licensing agreement, contract, instrument or other agreement to which
Buyer is a party or by which Buyer or any of its assets or properties is bound,
except for such conflicts, breaches, terminations, defaults, accelerations,
liens, charges or encumbrances which would not, individually or in the
aggregate, materially impair the ability of Buyer to perform its obligations
under this Agreement or any other agreement contemplated hereby.
(d) CERTAIN FEES. With the exception of fees and expenses
payable to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., which shall be paid by Buyer, neither Buyer nor
any of its officers, directors or employees on behalf of Buyer, has employed any
broker or finder or incurred any other liability for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
hereby.
(e) LEGAL PROCEEDINGS. There is no litigation, proceeding, tax
audit or governmental investigation pending or, to the knowledge of Buyer,
threatened in writing which seeks to question, delay or prevent the consummation
of, or would materially impair the ability of Buyer to consummate the
transactions contemplated hereby.
(f) ACCESS TO FUNDS. Buyer has, or has prompt access to, and
will have on the Closing Date, sufficient cash to meet its obligations under
Section 2.3.
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(g) NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties contained in this Section 3.2, neither Buyer nor
any other Person makes any express or implied representation or warranty on
behalf of Buyer.
3.3. EXPIRATION OF REPRESENTATIONS AND WARRANTIES. Each
representation and warranty of Buyer and Seller made pursuant to this Agreement
shall survive for a period of eighteen (18) months following the Closing Date
regardless of any investigation made at any time by or on behalf of either
party, and thereafter neither party may make any claim for any breach of such
representations and warranties. Notwithstanding the foregoing, the
representations and warranties set forth in Sections 3.1(a), 3.1(b), 3.1(d),
3.1(e), 3.1(f), 3.2(a) and 3.2(b) shall survive in perpetuity, the
representations and warranties set forth in Sections 3.1(p) and 3.1(q) shall
survive for a period of three years following the Closing Date, and the
representations and warranties set forth in Section 3.1(r) shall survive until
the expiration of the applicable statute of limitations with respect to the
matters set forth therein.
4. TRANSACTIONS PRIOR TO CLOSING
4.1. ACCESS TO INFORMATION CONCERNING PROPERTIES AND RECORDS;
CONFIDENTIALITY. (a) Seller agrees that, during the period commencing on the
date hereof and ending on the Closing Date, (i) it will give or cause to be
given to Buyer and its counsel, financial advisors, auditors and other
authorized representatives (collectively, "REPRESENTATIVES") such access, during
normal business hours and upon reasonable advance notice, to the Plants,
properties, books and records of the PE Group relating to the Assets or the
Analytical Instruments Business, as Buyer may from time to time reasonably
request and (ii) it will furnish or cause to be furnished to Buyer such
financial and operating data and other information with respect to the business
and properties of the Analytical Instruments Business, as Buyer may from time to
time reasonably request; PROVIDED, HOWEVER, that Seller shall have the right to
have a representative present at all such times; and PROVIDED, FURTHER, that
such access shall be at the expense and risk of Buyer. Buyer and its
Representatives shall be entitled, in consultation with Seller, to such access
to the representatives, officers and employees of Seller and the Subsidiaries to
the extent they are involved in the Analytical Instruments Business as Buyer may
reasonably request. Buyer agrees that it will, and will cause its
Representatives to, continue to treat all information so obtained from Seller as
"Information" under the confidentiality agreement entered into between WDR (on
behalf of Seller) and Buyer dated September 8, 1998 (the "CONFIDENTIALITY
AGREEMENT"), and will continue to honor its obligations thereunder and that, if
requested by Seller, it will cause any of its Representatives so requested to
enter into a written agreement acknowledging the terms of the Confidentiality
Agreement and agreeing to be bound thereby.
(b) Notwithstanding Section 4.1(a) and the information
provided to Buyer after the date hereof, Buyer hereby acknowledges that it has
made its own determinations with respect to the Analytical Instruments Business,
the Assets, the Subsidiary Stock and the Assumed Liabilities, and acknowledges
and agrees that Seller has made and makes no representations or
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warranties, express or implied, at common law, by statute or otherwise, except
as specifically set forth in this Agreement, and Seller hereby disclaims all
implied warranties, including warranties of merchantability or fitness for a
particular purpose.
4.2. CONDUCT OF THE ANALYTICAL INSTRUMENTS BUSINESS PENDING
THE CLOSING DATE. Seller agrees that, except as permitted, required or
contemplated by this Agreement, the Transition Agreements, License Agreements,
Note and Assumption Agreement or any of the Exhibits or Schedules hereto,
including, without limitation, those actions necessary in connection with the
transactions contemplated by Section 4.3 or as described in Section 4.2 of the
Seller Schedule or as otherwise consented to or approved in writing by Buyer,
during the period commencing on the date hereof and ending at the Closing, it
will cause the Analytical Instruments Business to be operated only in the usual,
regular and ordinary manner. Without limiting the generality of the foregoing,
except as aforesaid, during the period commencing on the date hereof and ending
at the Closing:
(a) Seller agrees that it shall cause the Analytical
Instruments Business to be conducted in the Ordinary Course of Business;
(b) Seller agrees that it will cause the Company to use all
reasonable efforts to preserve substantially intact the business organization of
the Analytical Instruments Business, to keep available to Buyer the services of
the key employees of the Analytical Instruments Business and to preserve the
current relationships of the Analytical Instruments Business with its customers,
suppliers and other Persons with which the Analytical Instruments Business has
significant business relationships;
(c) Seller agrees that it shall not, and shall not permit any
Subsidiary to (provided that the consent of Buyer shall not be unreasonably
withheld with respect to any of the following):
(i) amend the certificate of incorporation or by-laws or other
equivalent organizational document of any Transferred Subsidiary, or
permit any Transferred Subsidiary to merge or consolidate, or obligate
itself to do so, with or into any other entity;
(ii) issue or sell any shares of capital stock of, or other
equity interests in, any Transferred Subsidiary, or securities
convertible into or exchangeable for such shares or equity interests or
sell or transfer any Assets, except for sales of assets in the Ordinary
Course of Business and other asset sales to non-affiliates for
consideration aggregating not more than $100,000 individually or
$500,000 in the aggregate;
(iii) permit any Transferred Subsidiary to declare, set aside,
make or pay any dividend or other distribution, payable in stock,
property or otherwise (other than in cash), with respect to any of its
capital stock except in the Ordinary Course of Business;
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(iv) establish or materially increase any bonus, insurance,
severance, deferred compensation, pension, retirement, profit sharing,
stock option (including, without limitation, the granting of stock
options, stock appreciation rights, performance awards, or restricted
stock awards), stock purchase or other employee benefit plan, or
otherwise increase the compensation payable or to become payable to any
officers or key employees of Seller or any Subsidiary who is a
Transferred Employee or Continuing Employee, except in the Ordinary
Course of Business or as may be required by law or by existing
contractual arrangements;
(v) enter into any employment, severance or collective
bargaining agreement with any of its employees whose services are
substantially devoted to the Analytical Instruments Business, except in
the Ordinary Course of Business or as may be required by law or by
existing contractual arrangements;
(vi) permit any Transferred Subsidiary to acquire (including,
without limitation, by merger, consolidation or acquisition of stock or
assets) any corporation, partnership, limited liability company, other
business organization or any division thereof for consideration in
excess of $100,000 individually or $500,000 in the aggregate;
(vii) permit any Transferred Subsidiary to assume, guarantee
or endorse, or otherwise as an accommodation become responsible for,
the obligations of any Person (other than another Transferred
Subsidiary), or make any loans or advances, except in the Ordinary
Course of Business;
(viii) authorize any capital expenditure for the Analytical
Instruments Business in excess of $100,000 for any single project that
is not provided for in the capital expenditure budget of the Analytical
Instruments Business for the fiscal year ending June 30, 1999
previously delivered to Buyer;
(ix) make any purchase commitment exceeding $50,000 in any
instance for the Analytical Instruments Business other than in the
Ordinary Course of Business other than as contemplated by the preceding
clauses (i) through (viii);
(x) change its accounting methods, principles or practices,
except insofar as may be required by a change in U.S. GAAP or
comparable requirements of any other jurisdiction in which the
Analytical Instruments Business is conducted;
(xi) mortgage or pledge to secure any Indebtedness of any
Asset Seller or Transferred Subsidiary any of the Assets or any of the
assets of a Transferred Subsidiary in each case having a value,
individually or in the aggregate, in excess of $1,000,000, or subject
any such Assets or assets to any Encumbrance other than Permitted
Encumbrances;
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(xii) sell, assign, transfer or license or let lapse any
Intellectual Property included in the Assets or any Intellectual
Property of any Transferred Subsidiary, except for licenses of such
Intellectual Property in the Ordinary Course of Business in conjunction
with product sales;
(xiii) enter into, amend, terminate, take or omit to take any
action that would constitute a violation of or default under, or waive
any rights under, any Material AI Contract or Material Permit included
in the Assets or to which any Transferred Subsidiary is a party;
(xiv) take any action or fail to take any reasonable action
permitted by this Agreement if such action or failure to take action
would result in (A) any of the representations and warranties of Seller
set forth in this Agreement becoming untrue in any material respect or
(B) any of the conditions to the Closing set forth in Section 5 of this
Agreement not being satisfied; or
(xv) enter into or amend any contract, agreement, commitment
or arrangement with respect to any matter set forth in this Section
4.2(c);
(d) Seller agrees that it shall, and shall cause each Asset
Seller and Transferred Subsidiary to cooperate with Buyer in communicating with
suppliers and customers to accomplish the transfer of the Assets to and the
purchase of the Analytical Instruments Business by Buyer on the Closing Date.
4.3. TRANSACTIONS WITH TRANSFERRED SUBSIDIARIES. (a) Prior to
the Closing Date, Seller shall cause the assets and liabilities of each
Transferred Subsidiary described in Section 4.3(a) of the Seller Schedule, none
of which is necessary to conduct the Analytical Instruments Business as
currently conducted, to be transferred to or assumed by, as the case may be,
Seller or one of its subsidiaries (other than a Transferred Subsidiary). Without
limitation of the foregoing, the liabilities that shall be satisfied or assumed
by Seller include those of the nature specified in (a) through (m) of Section
1.7.
(b) At or prior to the Closing: (i) all arrangements calling
for the transfer of funds by or to any Transferred Subsidiary in connection with
Seller=s cash management system shall be terminated as of the Closing; (ii) all
arrangements between any Transferred Subsidiary, on the one hand, and Seller or
any of the Subsidiaries other than a Transferred Subsidiary, on the other hand,
pertaining to the allocation or sharing of liability for Taxes shall be
terminated as of the Closing; and (iii) the receivables and payables
constituting Excluded Assets and Excluded Liabilities in accordance with
Sections 1.3(k) and 1.7(e) shall be extinguished.
4.4. GUARANTEES. Buyer shall use all reasonable efforts (which
shall not include agreeing to any modifications of the terms of the underlying
obligations or the payment of any
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penalty or premium) to cause itself or one or more of its Affiliates to be
substituted in all respects for Seller or the Subsidiaries (other than the
Transferred Subsidiaries), effective as of the Closing, in respect of all
obligations of Seller and any of the Subsidiaries (other than the Transferred
Subsidiaries) under each of the guarantees, indemnities, surety bonds, letters
of credit and letters of comfort set forth in Section 4.4 of the Seller Schedule
(the "GUARANTEES"). If Buyer is unable to effect such a substitution with
respect to any such Guaranty after using reasonable efforts to do so, Buyer
shall fully indemnify and hold harmless Seller with respect to the obligations
covered by each of the Guarantees for which Buyer does not effect such
substitution and any Damages relating thereto incurred by Seller.
4.5. FURTHER ACTIONS. (a) Subject to the terms and conditions
hereof, Seller and Buyer agree to use all reasonable efforts to take, or cause
to be taken, all action and to do, or cause to be done, all things necessary,
proper or advisable to consummate and make effective the transactions
contemplated by this Agreement, including using all reasonable efforts: (i) to
obtain prior to the Closing Date all licenses, certificates, permits, consents,
approvals, authorizations, qualifications and orders of governmental authorities
and parties to contracts with Seller or the Subsidiaries as are necessary for
the consummation of the transactions contemplated hereby, including but not
limited to such consents and approvals as may be required under the HSR Act as
set forth below and any similar foreign legislation; (ii) to effect all
necessary registrations and filings; and (iii) to furnish to each other such
information and assistance as reasonably may be requested in connection with the
foregoing. Seller, the Subsidiaries and Buyer shall cooperate fully with each
other to the extent reasonably required to obtain such consents.
(b) Buyer and Seller shall timely and promptly make all
filings which may be required by each of them in connection with the
consummation of the transactions contemplated hereby under the HSR Act and any
similar foreign legislation. Each party shall furnish to the other such
necessary information and assistance as such party may reasonably request in
connection with the preparation of any necessary filings or submissions by it to
any U.S. or foreign governmental agency, including, without limitation, any
filings necessary under the provisions of the HSR Act. Except as expressly
provided in this Section 4.5(b), neither party shall be required to litigate any
issue arising out of the pursuit or receipt of any regulatory consent from any
Governmental Authority and Buyer shall not be required to divest any subsidiary
or assets of Buyer or its Affiliates or agree to hold separate any assets of the
Analytical Instruments Business.
4.6. NOTIFICATION. (a) NOTICE OF CERTAIN ACTIONS. Seller, on
the one hand, and Buyer, on the other hand, shall promptly notify the other such
party or parties of:
(i) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection
with the transactions provided for in this Agreement;
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(ii) any material notice or other communication from any
Governmental Entity in connection with the transactions provided for in
this Agreement; and
(iii) any action suit, claim, investigation or proceeding
commenced or, to its knowledge, threatened against or otherwise
affecting the Company, on the one hand, or Buyer, on the other hand,
which relates to the consummation of the transactions provided for in
this Agreement.
(b) NOTICE OF BREACHES; UPDATES. (i) BY SELLER. Seller shall
promptly deliver to Buyer written notice of any event or development of which it
obtains knowledge that would (A) render any statement, representation or
warranty of Seller in this Agreement (including the Seller Schedule) inaccurate
or incomplete in any material respect or (B) constitute or result in a breach by
Seller of, or a failure by Seller or any Subsidiary to comply with, any
agreement or covenant in this Agreement applicable to it. No such disclosure
shall be deemed to avoid or cure any such misrepresentation or breach. Within 20
business days after the date hereof, Seller will provide Buyer a true, complete
and correct list of all leases of personal property with respect to the
Analytical Instruments Business involving any annual expense in excess of
$100,000 in any fiscal year in the Covered Period that cannot be cancelled by
the Analytical Instruments Business within 90 days without material premium or
penalty, excluding any master leases for Company Cars.
(ii) BY BUYER. Buyer shall promptly deliver to Seller written
notice of any event or development of which it obtains knowledge that
would (A) render any statement, representation or warranty of Buyer in
this Agreement (including the Buyer Schedule) inaccurate or incomplete
in any material respect or (B) constitute or result in a breach by
Buyer or a failure by Buyer to comply with, any agreement or covenant
in this Agreement applicable to it. No such disclosure shall be deemed
to avoid or cure any such misrepresentation or breach.
4.7. NO INCONSISTENT ACTION. Subject to the provisions of
Sections 7.1 and 7.2, Seller and Buyer shall not take any action inconsistent
with their obligations under this Agreement or which could materially hinder or
delay the consummation of the transactions contemplated by this Agreement.
4.8. LICENSE AGREEMENTS. (a) On the Closing Date, Buyer and
Seller shall execute and deliver a license agreement (the "BUYER LICENSE
AGREEMENT"), substantially in the form of EXHIBIT F, pursuant to which Seller
shall grant to Buyer a license to use the Intellectual Property set forth in
Section 4.8(a) of the Seller Schedule .
(b) On the Closing Date, Buyer and Seller shall execute and
deliver a license agreement (the "SELLER LICENSE AGREEMENT" and, together with
the Buyer License Agreement, the "LICENSE AGREEMENTS"), substantially in the
form of EXHIBIT G, pursuant to which Buyer shall
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grant to Seller a license to use the Intellectual Property set forth in Section
4.8(b) of the Seller Schedule.
4.9. FACILITIES AND SERVICES AGREEMENT. On or prior to the
Closing Date, Buyer and Seller shall execute and deliver, or cause one or more
of their subsidiaries to execute and deliver, Facilities and Services Agreements
(the "TRANSITION AGREEMENTS") with respect to facilities and services currently
shared by the Analytical Instruments Business and other business operations of
Seller or its Subsidiaries. With respect to each jurisdiction or subject matter
identified in Section 4.9 of the Seller Schedule, the applicable Transition
Agreement shall cover the facilities and services specified in Section 4.9 of
the Seller Schedule, on the terms and conditions set forth therein. Each
Transition Agreement shall be substantially in the form of EXHIBIT H, with such
modifications as are required to give effect to the terms of Section 4.9 of the
Seller Schedule.
4.10. NO SOLICITATION. Prior to the earlier of the Closing
Date or termination of this Agreement in accordance with the terms hereof, each
of Seller and the Subsidiaries will not, nor will it authorize any of its
officers, directors or employees or any investment banker, financial advisor,
attorney, accountant or other representative retained by it to, directly or
indirectly, (i) solicit, initiate or encourage (including by way of furnishing
information), or take any other action designed or reasonably likely to
facilitate, any inquiries or the making of any offer or proposal relating to an
acquisition of the Analytical Instruments Business (through a merger,
consolidation, acquisition of stock or assets or other like transaction) or (ii)
participate in any discussions or negotiations regarding any such offer or
proposal.
5. CONDITIONS PRECEDENT
5.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER AND SELLER.
The respective obligations of Buyer and Seller to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction at or prior
to the Closing Date of the following conditions:
(a) NO INJUNCTION, ETC. At the Closing Date, there shall be no
injunction, restraining order or decree of any nature of any court or
Governmental Authority of competent jurisdiction that is in effect that
restrains or prohibits the consummation of the Stock Purchase or the transfer to
Buyer by Seller or the Subsidiaries of any Assets, except for the transfer of
any Assets or Subsidiary Stock the failure of which to transfer, individually or
in the aggregate with all other Assets and Subsidiary Stock not being
transferred on the Closing Date, would not be material to the operations of the
Analytical Instruments Business. For purposes of this Section 5.1(a), any
failure to transfer shall not be regarded as material to the operations of the
Analytical Instruments Business so long as the aggregate revenue for the fiscal
year ended June 30, 1998 of all the Assets not transferred does not exceed $20
million. No legal action, suit or proceeding, investigation or inquiry shall be
pending by or on behalf of any Governmental Authority wherein an unfavorable
judgment, order, decree, stipulation, ruling, decision or injunction would (i)
prevent the consummation of the sale of any material portion of the
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Assets or Subsidiary Stock as contemplated hereby or (ii) cause the sale of any
material portion of the Assets or Subsidiary Stock as contemplated by this
Agreement to be rescinded following consummation. No legal action, suit or
proceeding by or on behalf of any other Person shall be pending as to which
there is a reasonable likelihood of an outcome that would (A) prevent the
consummation of the sale of any material portion of the Assets or Subsidiary
Stock as contemplated hereby or (B) cause the sale of any material portion of
the Assets or Subsidiary Stock as contemplated by this Agreement to be rescinded
following consummation.
(b) REGULATORY AUTHORIZATIONS. All consents, approvals,
authorizations and orders of federal, state and foreign Governmental Authorities
set forth in, or required to be set forth in, Section 3.1(c) of the Seller
Schedule (the "REQUIRED CONSENTS") shall have been obtained, and all applicable
waiting periods specified under the HSR Act or any similar foreign law or
regulation with respect to the transactions contemplated by this Agreement shall
have lapsed or been terminated, except for Required Consents of state and
foreign Governmental Authorities the failure of which to obtain, individually or
in the aggregate, would not, in the reasonable opinion of Buyer, be material to
the operations of the Analytical Instruments Business.
(c) THIRD PARTY CONSENTS. All consents, approvals and waivers
of third parties set forth in, or required to be set forth in, Section 3.1(c) of
the Seller Schedule, or that would have been required to be set forth in Section
3.1(c) of the Seller Schedule in the case of agreements entered into subsequent
to the date of this Agreement, shall have been obtained by Seller, except for
any thereof the failure of which to obtain, individually or in the aggregate,
would not, in the reasonable opinion of Buyer, be material to the operations of
the Analytical Instruments Business.
5.2. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The
obligations of Buyer under this Agreement are subject to the satisfaction (or
waiver in writing by Buyer) at or prior to the Closing Date of each of the
following conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of Seller qualified as to materiality contained
herein or in any certificate or document delivered to Buyer pursuant hereto
shall be true and correct in all respects and those not so qualified shall be
true and correct in all material respects, in each case on and as of the Closing
Date, with the same force and effect as though such representations and
warranties had been made on and as of the Closing Date, except as contemplated
or permitted by this Agreement and except to the extent that any such
representation or warranty is made as of a specified date, in which case such
representation or warranty shall have been true and correct as of such date;
PROVIDED that notwithstanding the foregoing, in the event the representations
and warranties of Seller referred to in this Section 5.2(a) fail to be true and
correct as of the Closing or such specified date as of which such
representations and warranties are made, the condition set forth in this Section
5.2(a) shall be deemed satisfied unless a Material Adverse Closing Event shall
have occurred; and PROVIDED further that the deemed satisfaction of such
condition referred to in
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the preceding proviso shall in no way constitute a release of Seller or a waiver
of Buyer's right to indemnification from Seller with respect to any such Damages
pursuant to Section 9.4 hereof.
(b) PERFORMANCE OF AGREEMENTS. Seller shall have performed in
all material respects all obligations and agreements, and complied in all
material respects with all covenants and conditions, contained in this Agreement
to be performed or complied with by it prior to or at the Closing;
(c) OFFICER'S CERTIFICATE. Buyer shall have received a
certificate of the Company, dated the Closing Date, executed on its behalf by
the President or a Senior Vice President of Seller to the effect that the
conditions specified in Sections 5.2(a), (b) and (d) have been fulfilled;
(d) NO MATERIAL ADVERSE CHANGE. Since June 30, 1998, there
shall not have been any event or occurrence which has had or which could
reasonably be expected to have, individually or in the aggregate, a Seller
Material Adverse Effect other than (i) changes or effects resulting from the
transactions contemplated by this Agreement (or the public announcement
thereof), (ii) currency fluctuations, (iii) changes in general economic,
regulatory or political conditions, (iv) changes in the levels of financial
markets, (v) other changes that affect the analytical instrument industry in
general or (vi) changes disclosed in Section 5.2(d) of the Seller Schedule.
(e) LICENSE AGREEMENTS. Seller shall have executed and
delivered to Buyer the License Agreements; and
(f) TRANSITION AGREEMENTS. Seller and its subsidiaries shall
have executed and delivered to Buyer the Transition Agreements.
5.3. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER. The
obligations of Seller under this Agreement are subject to the satisfaction (or
waiver in writing by Seller) at or prior to the Closing Date of each of the
following conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of Buyer qualified as to materiality contained
herein or in any certificate or document delivered to Seller pursuant hereto
shall be true and correct in all respects and those not so qualified shall be
true and correct in all material respects, in each case on and as of the Closing
Date, with the same force and effect as though such representations and
warranties had been made on and as of the Closing Date, except as contemplated
or permitted by this Agreement and except to the extent that any such
representation or warranty is made as of a specified date, in which case such
representation or warranty shall have been true and correct as of such date;
(b) PERFORMANCE OF AGREEMENTS. Buyer shall have performed in
all material respects all obligations and agreements, and complied in all
material respects with all covenants
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and conditions contained in this Agreement to be performed or complied with by
it prior to or at the Closing Date;
(c) OFFICER'S CERTIFICATE. Seller shall have received a
certificate of Buyer, dated the Closing Date, executed on its behalf by the
President or a Senior Vice President of Buyer to the effect that the conditions
specified in Sections 5.3(a) and (b) have been fulfilled;
(d) NOTE AND ASSUMPTION AGREEMENT. Buyer shall have executed
and delivered to Seller the Note and the Assumption Agreement;
(e) LICENSE AGREEMENTS. Buyer shall have executed and
delivered to Seller the License Agreements;
(f) TRANSITION AGREEMENTS. Buyer and its subsidiaries shall
have executed and delivered to Seller the Transition Agreements; and
(g) SECURITY AGREEMENT. Buyer shall have executed and
delivered to Seller the Security Agreement.
6. EMPLOYEE RELATIONS AND BENEFITS
6.1. PRE-CLOSING CONDUCT; OTHER LIABILITIES. (a) CERTAIN
SEVERANCE BENEFITS; CERTAIN ARRANGEMENTS. In the event that the employment of an
employee of the Analytical Instruments Business who is eligible for coverage
immediately prior to the Closing Date under Seller=s severance plans for Asset
Employees and employees of the Transferred Subsidiaries, as described in Section
6.1(a)(i) of the Seller Schedule (collectively, the "SELLER'S SEVERANCE PLANS"),
and who continues employment with the Analytical Instruments Business without
interruption (a "CONTINUING EMPLOYEE"), is terminated by Buyer after the Closing
Date other than for cause, Buyer shall pay such terminated employee severance
benefits in accordance with the terms of Buyer's severance plan, giving credit
for the time served as employees of the Company; provided that Buyer shall not
be liable for severance for the persons listed on Section 6.1(a)(ii) of the
Seller Schedule. Service with Seller, the Subsidiaries and Buyer for periods
prior to and after the Closing Date shall be aggregated for purposes of
calculating severance benefits for such employees. To the extent permitted by
applicable law, Seller shall use its reasonable best efforts, prior to the
Closing, to amend, or cause to be amended, every severance plan or arrangement,
to the extent that it would be reasonably likely to give rise to eligibility for
severance benefits for Continuing Employees with respect to any termination of
employment which arises solely because of the consummation of the transaction
contemplated by this Agreement, so as to reduce or eliminate to the extent
possible such eligibility. Under no circumstances shall Buyer be liable for
payment of severance benefits which arise from the operation of law or otherwise
as a result of the consummation of the transactions contemplated by this
Agreement.
(b) UNITED STATES PENSION AND RETIREMENT PLANS. (i) CESSATION
OF BENEFIT ACCRUALS AND FULL VESTING. Effective as of the Closing Date, the
Company shall cease benefit
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accruals under (i) The Employee Pension Plan of The ▇▇▇▇▇▇-▇▇▇▇▇ Corporation
("SELLER PLAN") and (ii) The Employee Savings Plan of The ▇▇▇▇▇▇-▇▇▇▇▇
Corporation (the "SELLER 401(K) PLAN") with respect to those participants in the
Seller Plan and the Seller 401(k) Plan who are United States Employees, and all
benefits accrued by such United States Employees, as of the Closing Date, in the
Seller Plan and the Seller 401(k) Plan shall be fully vested as of the Closing
Date. No assets or liabilities shall be transferred from the Seller Plan or the
Seller 401(k) Plan to any employee benefit plan of Buyer.
(ii) SELLER 401(K) PLAN. Seller and Buyer shall cooperate to
take whatever steps are necessary to effect, as promptly as practicable
after the Closing Date, to the extent elected by participants, the
distribution and direct rollover to Buyer's 401(k) Plan of the accrued
benefit as of the Closing Date of United States Employees under the
Seller 401(k) Plan. With respect to such rollover: (i) Buyer shall
provide to Seller written assurances that Buyer's 401(k) Plan is an
"eligible retirement plan" and (ii) Seller shall provide to Buyer
written assurances that the Seller 401(k) Plan are or are part of an
"eligible retirement plan." For purposes of this Section 6.1(b), the
term "eligible retirement plan" shall have the meaning set forth in
Sections 401(a)(31)(D) and 402(c)(8)(B) of the Code. Buyer shall
indemnify Seller in accordance with Section 9.4 against any losses
incurred by it as a result of the failure of Buyer's 401(k) Plan to
qualify as an "eligible retirement plan." Similarly, Seller shall
indemnify Buyer in accordance with Section 9.4 against any losses
incurred by it as a result of the failure of Seller 401(k) Plan to
qualify as an "eligible retirement plan."
(iii) RETIREE MEDICAL. If an employee of the Company is
entitled on or prior to the Closing Date to elect the retiree medical
coverage under a Seller Benefit Plan, such employee may elect to
receive such coverage under the terms of the Seller Benefit Plan as in
effect on the Closing Date commencing either at the Closing Date or
upon termination of the employee's employment with Buyer or one of its
Affiliates on or prior to attaining age 65. Such electing employee
shall not be required to pay for coverage during the period of
employment with Buyer or one of its Affiliates so long as such employee
has not yet commenced receiving coverage under such Seller Benefit
Plan.
(c) ADDITIONAL PROVISIONS RELATING TO EMPLOYEES. (i) EMPLOYEE
TRANSFER. Buyer shall make offers of employment, to be effective as of the
Closing Date, to all domestic and foreign employees (collectively, the "ASSET
EMPLOYEES") of the Asset Sellers identified in Section 6.1(c) of the Seller
Schedule (adjusted to reflect terminations and hirings in the Ordinary Course of
Business from the date hereof and finalized at least 10 days prior to the
Closing Date and delivered to Buyer). The employees who accept such offer of
employment made by Buyer, or are automatically transferred to Buyer shall be
referred to as, the "TRANSFERRED EMPLOYEES"). Except as may be required by
applicable laws, Buyer shall have no obligation to offer employment to
individuals who are not actively at work on the Closing Date or absent from work
due to approved leaves of absence unless or until any such person returns from
such inactivity or leave. At such time, Buyer shall be obligated to offer
employment to such person or, if no job is then available, be liable for any
severance to which person would be entitled. For purposes of
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this Agreement, "ACTIVELY AT WORK" means employees who are not on long-term
disability or who are not eligible for long-term disability but have been
continuously absent from work for a period exceeding 60 days and not expected to
return prior to the Closing Date. Without limiting Buyer's obligations under any
other provision of this Section 6, Buyer's offers of employment shall be at
least at the current wage or salary rate for such employees.
(ii) Starting on the Closing Date, Buyer shall, for a period
ending on the date twelve (12) months after the Closing Date, provide
each Continuing Employee who continues his or her employment after the
Closing Date with total cash compensation at least equal to such
Continuing Employee's total cash compensation during the twelve months
immediately prior to the Closing Date. Starting on the Closing Date,
Buyer shall also, for a period ending on the date twelve (12) months
after the Closing Date, maintain (or cause its subsidiaries to
maintain) employee benefit plans, agreements, programs, policies and
arrangements for the benefit of each Continuing Employee that are no
less favorable in the aggregate to those provided by Buyer to its
employees who are similarly situated to such Continuing Employee
("BUYER PLANS"). Notwithstanding anything to the contrary in this
Agreement, starting on the Closing Date Buyer shall, for a period
ending on the date twelve (12) months after the Closing Date, maintain
(or cause its subsidiaries to maintain) a severance pay plan, program
or practice for the benefit of each Continuing Employee that is no less
favorable than the Seller's Severance Plans in effect immediately prior
to the Closing Date with respect to such Continuing Employee.
(iii) Buyer acknowledges that the Acquired Rights Directive
(77/187 EEC) as enacted in the Member States of the European Union and
similar laws in other jurisdictions which safeguard the rights of
employees in transfers of undertakings, businesses or parts of
businesses (collectively, the "TRANSFER LAWS") may operate to
automatically transfer all or some of the Asset Employees to Buyer.
Buyer agrees that it will comply with the Transfer Laws, if any, of any
jurisdiction in which the Asset Employees are employed. Buyer agrees
that after the Closing Date, the contracts of employment of the
Transferred Employees (except for any rights or obligations which do
not transfer under the Transfer Laws, or are not otherwise assumed by
Buyer), if any, will have effect as if originally entered into between
Buyer and the Transferred Employees.
(d) OTHER EMPLOYEE BENEFITS MATTERS. (i) SERVICE CREDIT. Under
Buyer's employee benefit plans, arrangements and policies, each employee of the
Analytical Instruments Business who continues employment with the Analytical
Instruments Business after the Closing without interruption shall receive credit
for service accrued or deemed accrued prior to the Closing Date with Seller, any
Subsidiary or any of their respective Affiliates for all purposes of such plans
(except for purposes of benefit accruals under pension and post-retirement
benefit plans), and shall be entitled to participate in any such employee
benefit plans. Buyer shall also permit the employees of the Analytical
Instruments Business and their eligible dependents to participate in its group
health plans, and shall waive any waiting periods and any restrictions and
limitations on preexisting medical conditions.
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(ii) PLANT CLOSING LAWS. After the Closing Date, Buyer shall
be responsible for providing any notice of layoff or plant closing, as
may be required, with respect to the Analytical Instruments Business
after the Closing pursuant to the United States Federal Worker
Adjustment and Retraining Notification Act of 1988, any successor
United States federal law, and any applicable plant closing
notification Law.
(iii) POST-CLOSING BENEFITS. Until December 31, 1999, Buyer
shall continue for employees "actively at work" (as defined herein)
healthcare and welfare benefits that are comparable or similar to those
benefits under Seller's plan as of the Closing Date for continuing
employees. Seller agrees to cooperate with Buyer to facilitate the
coordination of such benefits during such period provided that Buyer
shall have no obligation to provide post-termination life insurance.
(iv) UK PENSION PLAN. With respect to the defined benefit
pension plan of ▇▇▇▇▇▇-▇▇▇▇▇ Ltd. maintained or contributed to by the
Company (the "UK PENSION PLAN"), Seller shall pay on the Closing Date
to Buyer the sum of (pound) 2.1 million in respect of agreements
reached between Seller and Buyer concerning the UK Pension Plan and on
or after the Closing Date, Buyer shall assume and become the sponsor of
the UK Pension Plan and have responsibility for all liabilities,
obligations and costs arising out of or in connection with the UK
Pension Plan.
(v) ACCRUED VACATION. Buyer shall, or shall cause the
Transferred Subsidiary to, provide for Employees of the Analytical
Instruments Business to take their accrued vacations after the Closing
Date, in such manner and at such times as is consistent with Seller's
past practices and not disruptive of the Analytical Instruments
Business.
(vi) CONSULTATION REQUIREMENTS. Seller and Buyer shall
cooperate to take whatever steps are reasonably necessary to comply
with any employee consultation requirements arising under any
applicable law.
(vii) NO LIABILITY. Other than as expressly assumed in this
Article 6, Buyer shall not be liable for any benefits under any Seller
Benefit Plan which is not maintained by the Company after the Closing
or under any Benefit Plan ever maintained by the Company. Buyer shall
not be liable for long-term disability benefits nor any other benefit
payable for Asset Employees who are not "actively at work" (as defined
herein) on or prior to the Closing Date. Buyer shall not be liable for
any health care continuation benefits for employees who terminated
employment on or prior to the Closing Date.
(viii) RETENTION OF LIABILITIES BY SELLER. Seller and the
Subsidiaries shall retain all pension obligations under the Seller Plan
with respect to Employees of the Analytical Instruments Business which
accrue up to and including the Closing Date. Benefits relating to such
pension obligations shall be provided by Seller and the Subsidiaries to
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Employees under the terms of the Seller Plan, based only upon the
Employee=s credited service with Seller and the Subsidiaries and
measured by the applicable benefit formula in effect on the Closing
Date, and subject to all other terms, conditions and limitations of the
Seller Plan in effect on the Closing Date.
(ix) CO-OPERATIONS. Buyer and Seller agree to cooperate to
obtain any amendments of any of the collective bargaining agreements
which may be necessary to implement the provisions of this Agreement.
7. TERMINATION
7.1. GENERAL. This Agreement may be terminated and the
transactions contemplated herein may be abandoned, (a) by mutual written consent
of Buyer and Seller or (b) by Buyer or Seller by written notice to the other
party in the event that the Closing Date shall not have occurred on or before
October 31, 1999; PROVIDED, HOWEVER, that if the Closing Date shall not have
occurred on or before such date due to the act or omission of Buyer or Seller,
then that party may not terminate the Agreement. This Agreement may also be
terminated and the transactions contemplated herein abandoned by either Buyer or
Seller by written notice to the other party, in the event a Material Adverse
Closing Event has occurred. As used in this Agreement, a "MATERIAL ADVERSE
CLOSING EVENT" means that (i) the representations and warranties of Seller have
failed to be true and correct as of the Closing or such earlier date on which
such representations and warranties are made and (ii) the Damages therefore
reasonably expected to result from such failure equal or exceed $40 million.
7.2. OBLIGATIONS IN EVENT OF TERMINATION. In the event of any
termination of the Agreement as provided in Section 7.1, this Agreement shall
forthwith become wholly null and void and of no further force and effect and
there shall be no liability on the part of Buyer or Seller, except that the
obligations of the parties under Section 4.1 with respect to confidentiality and
Section 9.2 and this Section 7.2 shall remain in full force and effect, and
except that termination shall not preclude any party from suing the other party
for breach of this Agreement.
8. TRANSACTIONS AND ACTIVITIES SUBSEQUENT TO CLOSING
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8.1. ACCESS TO BOOKS AND RECORDS; CONFIDENTIALITY. (a) For a
period of ten (10) years following the Closing Date, Buyer shall retain and
afford, and will cause its Affiliates to retain and afford, to Seller and its
Subsidiaries, including the Subsidiary Asset Sellers, their counsel and their
accountants, during normal business hours and upon reasonable advance notice,
reasonable access to the books, records and other data of the Analytical
Instruments Business and of the Transferred Subsidiaries (including, without
limitation, any books, records or other data that may be reasonably requested by
Seller in connection with any audit described in Section 8.4(c)) with respect to
the period prior to the Closing Date and, in the case of any Transferred
Subsidiary, with respect to the applicable current taxable period, to the extent
that such access may be reasonably required by Seller or any Subsidiary Asset
Seller to facilitate (i) the preparation and timely filing by Seller or such
Subsidiary Asset Seller of such Tax Returns as it may be required to file with
respect to the operations of the Analytical Instruments Business or the
preparation and timely filing of such Tax Returns as Seller shall bear
responsibility for preparing pursuant to Section 8.4, the making of any election
related to Taxes or in connection with any audit, amended return, claim for
refund or any suit or proceeding with respect thereto, (ii) the investigation,
litigation and final disposition of any claims, suits or proceedings which may
have been or may be made against Seller or such Subsidiary Asset Seller by third
parties in connection with the Analytical Instruments Business and (iii) the
payment of any amount pursuant to Section 9.4 or in connection with any
liabilities or obligations which have not been assumed by Buyer under this
Agreement. Buyer will not, and will cause its Affiliates not to, dispose of,
alter or destroy any such books, records and other data without giving thirty
(30) days' prior notice to Seller to permit Seller, at its expense, to examine,
duplicate or repossess such records, files, documents and correspondence.
(b) Buyer shall further cooperate with Seller in the
preparation for and prosecution of the defense of any audit, claim, action or
cause of action arising out of or relating to any Excluded Liabilities which
have not been assumed by Buyer under this Agreement including, without
limitation, by making available evidence within the control of Buyer and Persons
needed as witnesses employed by Buyer, in each case as reasonably needed for
such defense. Seller shall reimburse Buyer for its reasonable out-of-pocket
costs relating to its cooperation under this subparagraph.
(c) For a period of ten (10) years following the Closing Date,
Seller shall retain and afford, and will cause the Subsidiary Asset Sellers to
retain and afford, to Buyer, its counsel and its accountants, during normal
business hours and upon reasonable advance notice, reasonable access to the
books, records and other data of Seller and the Subsidiary Asset Sellers with
respect to the period prior to the Closing Date to the extent that such access
may be reasonably required by Buyer or any Affiliate of Buyer to facilitate (i)
the preparation by Buyer or such Affiliate of such Tax Returns as it may be
required to file with respect to the operations of the Analytical Instruments
Business, the making of any election related to Taxes or in connection with any
audit, amended return, claim for refund or any suit or proceeding with respect
thereto, (ii) the investigation, litigation and final disposition of any claims,
suits or proceedings which may have been or may be made against Buyer or such
Affiliate by third
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parties in connection with the Analytical Instruments Business and (iii) the
payment of any amount pursuant to Section 9.4 or in connection with any
liabilities or obligations which have been assumed by Buyer under this
Agreement. Seller will not, and will cause its Affiliates not to, dispose of,
alter or destroy any such books, records and other data without giving thirty
(30) days' prior notice to Buyer to permit Buyer, at its expense, to examine,
duplicate or repossess such records, files, documents and correspondence.
(d) Seller further agrees to cooperate with Buyer in the
preparation for and prosecution of the defense of any audit, claim, action or
cause of action arising out of or relating to any liability which has been
assumed by Buyer hereunder, including, without limitation, by making available
evidence within the control of Seller and Persons needed as witnesses employed
by Seller, in each case as reasonably needed for such defense. Buyer shall
reimburse Seller for its reasonable out-of-pocket costs relating to its
cooperation under this subparagraph.
8.2. FURTHER AGREEMENTS. Seller authorizes and empowers Buyer
on and after the Closing Date to receive and open all mail received by Buyer
relating to the Analytical Instruments Business, the Transferred Subsidiaries or
the Assets and to deal with the contents of such communications in any proper
manner. Seller shall, and shall cause other Asset Sellers to, promptly deliver
to Buyer any mail or other communication received by them after the Closing Date
pertaining to the Analytical Instruments Business, the Transferred Subsidiaries
or the Assets and any cash, checks or other instruments of payment to which
Buyer is entitled. Buyer shall promptly deliver to Seller any mail or other
communication received by it after the Closing Date pertaining to the assets and
liabilities described in Sections 1.3 and 1.7, and any cash, checks or other
instruments of payment in respect thereof.
8.3. ASSET RETURNS. In the event Buyer receives any assets of
the Company that are not intended to be transferred pursuant to the terms of
this Agreement, Buyer agrees to promptly return such assets to Seller at
Seller's expense. In the event any payments are made to Buyer following the
Closing with respect to Accounts Receivable that are not attributable to the
Analytical Instruments Business or that relate to any Excluded Assets or
Excluded Liabilities, Buyer agrees to forward such payments to Seller promptly.
In the event any payments are made to Seller following the Closing with respect
to Accounts Receivable that are attributable to the Analytical Instruments
Business or that relate to any Assets or Assumed Liabilities, Seller agrees to
forward such payments to Buyer promptly. In the event that, following the
Closing, Seller or any of the Subsidiaries receives any assets that were
intended to be, but were not, transferred pursuant to this Agreement at the
Closing, Seller shall promptly notify Buyer to such effect and shall comply with
its obligations in respect thereof contemplated by Section 1.5.
8.4. CERTAIN TAX MATTERS. (a) Seller shall prepare, or cause
to be prepared, all Tax Returns in respect of the Transferred Subsidiaries for
all taxable periods ending on or prior to the Closing Date and all taxable
periods beginning prior to the Closing Date and ending after the Closing Date.
In the case of any such Tax Return that is filed after the Closing Date, Buyer
shall deliver to Seller at least 60 days prior to the due date for filing the
relevant Tax Return a
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true and correct accounting of all relevant Tax Items (as defined below)
relating to the applicable Transferred Subsidiary for the taxable period. Seller
shall submit any part of such Tax Return relating to a Transferred Subsidiary to
Buyer at least 30 days prior to the date on which the Tax Return is due
(including extensions). Buyer shall submit its comments to Seller within 14 days
of receipt of the relevant portions of such Tax Return. If such Tax Return
relates to a period ending on or prior to the Closing Date, Seller shall not be
required to alter the Tax Return to reflect such comments unless Buyer receives
an opinion of counsel, which counsel shall be reasonably acceptable to Seller,
to the effect that failure to make such alteration would create a significant
risk of imposition of a penalty on Buyer or any Transferred Subsidiary. If such
Tax Return relates to a period ending after the Closing Date, Seller and Buyer
agree to consult and resolve in good faith any issue arising as a result of
Buyer's review of such Tax Return and mutually to consent to the filing as
promptly as possible of such Tax Return. In the event the parties are unable to
resolve any dispute, the parties shall jointly request that a mutually
acceptable accounting firm which is not the past or then current principal
auditors of Buyer or Seller resolve any issue before the due date of any such
Tax return, in order that such Tax return may be timely filed. The scope of the
accounting firm's review shall be limited to the disputed items. Seller and
Buyer shall each pay one-half of the accounting firm's fees and expenses. The
term "Tax Item" shall mean any item of income, capital gain, net operating loss,
deduction, credit or other Tax attribute relevant to the calculation of Tax
liability.
(b) Buyer shall timely file, or cause to be timely filed, all
Tax Returns prepared pursuant to this Section 8.4 that are filed after the
Closing Date (other than any consolidated returns relating to pre-Closing tax
periods of any Transferred Subsidiary). Buyer shall pay to the relevant taxing
authority all Taxes due in connection with any such Tax Return. If, pursuant to
Section 9.4, Seller would be liable for any Taxes relating to such Tax Return,
Seller shall pay the amount of such Taxes to Buyer no later than five (5)
Business Days after the Tax Return is filed.
(c) Notwithstanding anything in this Agreement to the
contrary, Seller shall control the representation of the interests of Seller and
any Subsidiaries in any Tax audit or administrative or court proceeding relating
to Tax Returns with respect to which Seller may be liable for Taxes pursuant to
this Agreement; PROVIDED, HOWEVER, that Seller will consult with Buyer regarding
any Tax issue of a Transferred Subsidiary that may have a materially adverse
effect on the Tax liability of Buyer, any of its Affiliates or any Transferred
Subsidiary for any period ending after the Closing Date and, in such situation,
Buyer shall have the right, at its discretion, to participate in (but not to
control) any such audit or proceeding solely with respect to such Tax issue,
provided that, in such case, Buyer shall not communicate with any taxing
authority in connection with such audit or proceeding without the consent of
Seller. Buyer shall have the right, at its discretion after good faith
consultation with Seller, to release Seller from its obligation to indemnify
Buyer with respect to such Tax issue by a written agreement mutually agreed to
by Seller and Buyer and, in that event, to control the representation of the
interest of the relevant Subsidiary solely with respect to such Tax issue.
Seller and Buyer shall bear their own expenses with respect to their
participation in any proceeding under this Section 8.4(c).
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Buyer and Seller mutually agree to consult and cooperate with each other so that
the transfer of control is effected in a manner that will minimize any
disruption to any such audit or proceeding and so that Seller is not prejudiced
in any way.
(d) Each of Seller and Buyer shall promptly notify the other
party in writing upon receipt by the notifying party, or any Affiliate of the
notifying party, of notice of any pending or threatened Tax audits or
assessments relating to Taxes covered by Section 8.4.
(e) Seller shall provide Buyer with such information as is
necessary for the application of the incremental research credit provisions of
Code section 41(f)(3)(A).
(f) The parties agree that any indemnification payments made
pursuant to this Agreement shall be treated for tax purposes as an adjustment to
the Purchase Price, unless otherwise required by applicable law. Buyer agrees
not to make any election under Section 338 of the Code (other than with respect
to BSW) unless Seller consents to such election in writing which consent shall
not be unreasonably withheld.
8.5. NON-SOLICITATION OF EMPLOYEES. (a) During the period
beginning on the Closing Date and ending on the fifth anniversary of the Closing
Date, without the prior written consent of Buyer, Seller shall refrain from,
either alone or in conjunction with any other Person (including any Affiliate),
directly or indirectly:
(i) soliciting the employment by Seller or any of its
Affiliates of any Transferred Employee unless such Transferred Employee
is terminated by Buyer; or
(ii) causing or attempting to cause any Transferred Employee
to resign or sever a relationship with Buyer or any of its subsidiaries
(including the Transferred Subsidiaries).
(b) During the period beginning on the Closing Date and ending
on the fifth anniversary of the Closing Date, without the prior written consent
of Seller, Buyer shall refrain from, either alone or in conjunction with any
other Person (including any Affiliate), directly or indirectly:
(i) soliciting the employment by Buyer or any of its
Affiliates of any Person who is an employee of Seller or any of the
Subsidiaries other than Transferred Employees unless such employee is
terminated by Seller; or
(ii) causing or attempting to cause any employee of Seller or
any of its subsidiaries other than Transferred Employees to resign or
sever a relationship with Seller or any of the Subsidiaries.
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(c) The parties agree that the foregoing restrictions in
subsections (a) and (b) shall not apply to any general solicitation by Buyer or
Seller not specifically directed at employees of Seller or Transferred Employees
made in a newspaper or other periodical.
8.6. NON-COMPETITION. During the period beginning on the
Closing Date and ending on the third anniversary of the Closing Date, without
the prior written consent of Buyer, Seller shall refrain from, either alone or
in conjunction with any other Person (including any Affiliate), directly or
indirectly, manufacturing, distributing, servicing or selling products or their
successor products that are the same or substantially similar to those
manufactured, distributed and/or sold by the Analytical Instruments Business or
under development as of the date of this Agreement, solely as such products are
specifically listed in Section 8.6(a) of the Seller Schedule (the "ANALYTICAL
INSTRUMENTS PRODUCTS"), in any field of use listed in Section 8.6(b) of the
Seller Schedule, or in any field of use other than Life Sciences (as defined
below) listed in Section 8.6(c) of the Seller Schedule, to the extent (but only
to the extent) that Seller and its subsidiaries (exclusive of the Analytical
Instruments Business), as of the date of this Agreement, are not manufacturing,
producing, developing, distributing or selling such products in such fields, and
have no pending plans to do so (the "EXCLUDED FIELDS"). Buyer expressly
acknowledges that Seller shall not be in violation of this Section 8.6 if it
develops or sells products listed in Section 8.6(a) of the Seller Schedule for
applications outside the fields of use set forth in Section 8.6(b) of the Seller
Schedule. Buyer further acknowledges that the foregoing provisions of this
Section 8.6 shall not be construed to prohibit any Person that becomes a
controlling Affiliate of Seller following the Closing Date from continuing to
engage in any business in which it is engaged at the time it becomes such a
controlling Affiliate. As used in Section 8.6(c) of the Seller Schedule, "LIFE
SCIENCES" means the measurement, creation or purification of substances for the
purpose of characterizing and/or altering biological organisms, or constituents
thereof. Life Sciences does not include material science or petroleum analysis.
9. MISCELLANEOUS
9.1. PUBLIC ANNOUNCEMENTS. Prior to the Closing Date, no news
release or other public announcement pertaining in any way to the transactions
contemplated by this Agreement will be made by either party without the prior
consent of the other party, unless in the opinion of counsel to such party such
release or announcement is required by law or the requirements of the New York
Stock Exchange.
9.2. EXPENSES. Subject to the provisions of Section 9.3,
whether or not the transactions contemplated by this Agreement are completed,
each of the parties hereto shall pay the fees and expenses incurred by it in
connection with the negotiation, preparation, execution and performance of this
Agreement, including, without limitation, attorneys' fees and accountants' fees.
9.3. TRANSFER TAXES AND RECORDING EXPENSES. Buyer and Seller
shall each pay and be responsible for fifty percent (50%) of all U.S. or foreign
transfer, documentary, sales,
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excise, stamp, motor vehicle, registration, value added or similar taxes and
notary, filing or recording expenses or fees, if any, required to be paid in
connection with this Agreement and the transactions contemplated hereby (other
than the transactions contemplated by Section 4.3 for which taxes, recording
fees and other charges and expenses shall be paid by Seller), including any
interest charge, penalty or addition to tax with respect thereto. Each party
shall be entitled to pay any such amounts on behalf of the other party, and the
non-paying party shall promptly reimburse the paying party for any amounts so
paid.
9.4. INDEMNIFICATION. (a) Seller shall indemnify and hold
Buyer harmless against and in respect of (i) all obligations and liabilities of
Seller and the Subsidiaries (other than the Transferred Subsidiaries), whether
accrued, absolute, fixed, contingent or otherwise, not expressly assumed by
Buyer pursuant to this Agreement or the Assumption Agreement; (ii) any loss,
liability, damage, claims, costs or expenses (including reasonable attorneys'
fees and other reasonable costs of defense) (but excluding any liability for
taxes of any kind or interest or penalties thereon which are included in the
calculation of the Tax cost or Tax Benefit under Section 9.4(e)) (collectively,
"DAMAGES") incurred or sustained by Buyer as a result of any breach by Seller of
its covenants contained herein which survive the Closing; (iii) any Damages
incurred or sustained by Buyer as a result of any breach by Seller of its
representations and warranties contained herein; PROVIDED, that (x) Seller shall
be required to indemnify Buyer pursuant to this clause (iii) for such breaches
if, and only to the extent that, the aggregate actual Damages (as adjusted
pursuant to Section 9.4(e)) resulting from such breaches to Buyer exceeds
$4,600,000, (y) Seller shall not be required to indemnify Buyer pursuant to this
clause (iii) in an aggregate amount in excess of $425 million, and (z) any claim
for indemnification under this clause (iii) must be made in writing with
reasonable specificity to Seller by Buyer prior to the expiration (as specified
in Section 3.3) of the representation or warranty in respect of which such claim
for indemnification is made; (iv) to the extent exceeding the amounts accrued on
the Closing Balance Sheet (exclusive of any accruals for "deferred taxes" or
similar items that reflect timing differences between Tax and financial
accounting principles) , any Taxes of the Transferred Subsidiaries with respect
to any taxable period ending on or before the Closing Date (and any taxable
period beginning before and ending after the Closing Date to the extent
allocable to the portion of such period beginning before and ending on the
Closing Date), it being agreed that any allocation required to determine Taxes
attributable to any period beginning before and ending on the Closing Date shall
be made by means of a closing of the books and records of the Transferred
Subsidiaries as of the Closing Date and, to the extent not susceptible to such
allocation, by apportionment on the basis of elapsed days; (v) the Excluded
Liabilities, (vi) all Damages in connection with Excluded Assets and (vii) any
liabilities of the Transferred Subsidiaries under Environmental Laws
attributable to the ownership or leasing of real property that has been disposed
of (or the lease in respect of which terminated or expired) prior to the Closing
Date.
(b) Buyer shall indemnify and hold Seller and the other Asset
Sellers harmless against and in respect of (i) all obligations and liabilities
of Seller and the other Asset Sellers expressly assumed by Buyer pursuant to
this Agreement or the Assumption Agreement; (ii) any actual Damages incurred or
sustained by Seller or the other Asset Sellers as a result of any breach
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by Buyer of its covenants contained herein; (iii) any Damages incurred or
sustained by Seller or any of the other Asset Sellers as a result of any
operations of the Analytical Instruments Business after the Closing; (iv) any
Damages incurred or sustained by Seller or any of the other Asset Sellers as a
result of any breach by Buyer of its representations and warranties contained
herein; provided, that (x) Buyer shall be required to indemnify Seller and the
other Asset Sellers pursuant to this clause (iv) for such breaches if, and only
to the extent that, the aggregate actual Damages (as adjusted pursuant to
Section 9.4(e)) resulting from such breaches to Seller and the Subsidiary Asset
Sellers exceeds $4,600,000, (y) Buyer shall not be required to indemnify Seller
and the Subsidiary Asset Sellers pursuant to this clause (iv) in an aggregate
amount in excess of $425 million, and (z) any claim for indemnification under
this clause (iv) must be made in writing with reasonable specificity to Buyer by
Seller prior to the expiration (as specified in Section 3.3) of the
representation or warranty in respect of which such claim for indemnification is
made; and (v) all obligations of Seller or any of the Subsidiaries (other than
the Transferred Subsidiaries) under any guarantees, indemnities, surety bonds,
letters of credit or letters of comfort given or obtained by Seller or any of
the Subsidiaries (other than the Transferred Subsidiaries) for the benefit of
the Analytical Instruments Business as to which no substitution has been
effected pursuant to Section 4.4 prior to the Closing.
(c) With respect to third-party claims, all claims for
indemnification by Buyer or Seller, as the case may be (an "INDEMNIFIED PARTY"),
hereunder (other than claims specifically addressed in Section 8.4(c)) shall be
asserted and resolved as set forth in this Section 9.4(c). In the event that any
written claim or demand for which Buyer or Seller, as the case may be (an
"INDEMNIFYING PARTY"), would be liable to any Indemnified Party hereunder is
asserted against or sought to be collected from any Indemnified Party by a third
party, such Indemnified Party shall promptly notify the Indemnifying Party of
such claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the final amount
of such claim or demand) (the "CLAIM NOTICE"). The Indemnifying Party shall have
thirty (30) days from the date of receipt of the Claim Notice (the "NOTICE
PERIOD") to notify the Indemnified Party (A) whether or not the Indemnifying
Party disputes the liability of the Indemnifying Party to the Indemnified Party
hereunder with respect to such claim or demand and (B) whether or not it desires
to defend the Indemnified Party against such claim or demand. All costs and
expenses incurred by the Indemnifying Party in defending such claim or demand
shall be a liability of, and shall be paid by, the Indemnifying Party. Except as
hereinafter provided, in the event that the Indemnifying Party notifies the
Indemnified Party within the Notice Period that it desires to defend the
Indemnified Party against such claim or demand, the Indemnifying Party shall
have the right to defend the Indemnified Party by appropriate proceedings and
shall have the sole power to direct and control such defense. If any Indemnified
Party desires to participate in any such defense, it may do so at its sole cost
and expense. The Indemnified Party shall not settle a claim or demand without
the consent of the Indemnifying Party. The Indemnifying Party shall not, without
the prior written consent of the Indemnified Party, settle, compromise or offer
to settle or compromise any such claim or demand on a basis which would result
in the imposition of a consent order, injunction or decree which would restrict
the future activity or conduct of the Indemnified Party or any subsidiary or
Affiliate thereof or if such settlement or
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compromise does not include an unconditional release of the Indemnified Party
for any liability arising out of such claim or demand. If the Indemnifying Party
elects not to defend the Indemnified Party against such claim or demand, whether
by not giving the Indemnified Party timely notice as provided above or
otherwise, then the amount of any such claim or demand or, if the same be
contested by the Indemnified Party, that portion thereof as to which such
defense is unsuccessful (and the reasonable costs and expenses pertaining to
such defense) shall be the liability of the Indemnifying Party hereunder,
subject to the limitations set forth in Sections 9.4(a) and 9.4(b). Buyer and
Seller shall each render to each other such assistance as may reasonably be
requested in order to insure the proper and adequate defense of any such claim
or proceeding.
(d) The indemnities provided in this Section 9.4 shall survive
the Closing. Except with respect to claims based on actual fraud, the indemnity
provided in this Section 9.4 shall be the sole and exclusive remedy of the
Indemnified Party against the Indemnifying Party at law or equity for any matter
covered by paragraphs (a) and (b) above.
(e) The amount of any Damages for which indemnification is
provided under this Section 9.4 shall be computed net of any insurance proceeds
received by the Indemnified Party in connection with such Damages. If the amount
with respect to which any claim is made under this Section 9.4 (an "INDEMNITY
CLAIM") gives rise to a currently realizable Tax Benefit (as defined below) to
the party making the claim, the indemnity payment shall be reduced by the amount
of the Tax Benefit available to the party making the claim. Any indemnity
payment made pursuant to an Indemnity Claim shall be increased to take account
of any net Tax cost incurred by the claiming party arising from the receipt of
indemnity payments hereunder. To the extent such Indemnity Claim does not give
rise to a currently realizable Tax Benefit, if the amount with respect to which
any Indemnity Claim is made gives rise to a subsequently realized Tax Benefit to
the party that made the claim, such party shall refund to the Indemnifying Party
the amount of such Tax Benefit when, as and if realized. For the purposes of
this Agreement, any subsequently realized Tax Benefit shall be treated as though
it were a reduction in the amount of the initial Indemnity Claim, and the
liabilities of the parties shall be redetermined as though both occurred at or
prior to the time of the indemnity payment. For purposes of this Section 9.4(e),
a "TAX BENEFIT" means an amount by which the tax liability of the party (or
group of corporations including the party) is reduced (including, without
limitation, by deduction, reduction of income by virtue of increased tax basis
or otherwise, entitlement to refund, credit or otherwise) plus any related
interest received from the relevant taxing authority. Where a party has other
losses, deductions, credits or items available to it, the Tax Benefit from any
losses, deductions, credits or items relating to the Indemnity Claim shall be
deemed to be realized proportionately with any other losses, deductions, credits
or items. For purposes of this Section 9.4(e), a Tax Benefit is "currently
realizable" to the extent it can be reasonably anticipated that such Tax Benefit
will be realized in the current taxable period or year or in any Tax Return with
respect thereto (including through a carryback to a prior taxable period) or in
any taxable period or year prior to the date of the Indemnity Claim. In the
event that there should be a determination disallowing the Tax Benefit, the
Indemnifying Party shall be liable to refund to the
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Indemnified Party the amount of any related reduction previously allowed or
payments previously made to the Indemnifying Party pursuant to this Section
9.4(e). The amount of the refunded reduction or payment shall be deemed a
payment under this Section 9.4 and thus shall be paid subject to any applicable
reductions under this Section 9.4(e).
(f) The parties agree that any indemnifications payments made
pursuant to this Agreement shall be treated for tax purposes as an adjustment to
the Purchase Price, unless otherwise required by applicable law.
(g) Each Indemnified Party shall be obligated in connection
with any claim for indemnification under this Section 9.4 to use all reasonable
efforts to mitigate Damages upon and after becoming aware of any event which
could reasonably be expected to give rise to such Damages. Without limiting the
foregoing, otherwise indemnified Damages under or relating to Environmental Laws
shall be indemnified hereunder only to the extent such Damages were reasonably
required to be incurred under Environmental Laws.
(h) Notwithstanding anything to the contrary contained herein,
neither party hereto nor any Affiliate of either of them shall be liable for any
consequential, punitive or special damages pursuant to this Agreement or any of
the agreements contemplated hereby (it being understood, however, that lost
revenues or income may, if otherwise appropriate, be utilized in the valuation
of Assets or Subsidiary Stock for purposes of the calculation of any Damages,
except to the extent a party to this Agreement or any of its Affiliates is
liable for such consequential, punitive or special damages to a third party.
(i) Buyer shall promptly pay to Seller any refund or credit
(including any interest paid or credited with respect thereto) received by
Buyer, any Transferred Subsidiary or any Affiliate thereof after the Closing of
Taxes relating to any taxable period ending on or before the Closing Date or,
with respect to any taxable period beginning before and ending after the Closing
Date, Taxes relating to the portion of such period beginning before and ending
on the Closing Date determined as provided in Section 9.4(a)(iv). Buyer shall,
if Seller reasonably so requests, cause the relevant Transferred Subsidiary (or
other related entity) to file for any refund or credit to which Seller believes
it is entitled under this Section 9.4(i).
9.5. ENVIRONMENTAL REMEDIATIONS. (a) After the Closing, Seller
and Buyer shall equally share the cost of any investigation, monitoring,
clean-up or other remediation of any release of Materials of Environmental
Concern ("ENVIRONMENTAL REMEDIATION") at or from any Plant or any real property
currently owned by any Transferred Subsidiary or leased by any Transferred
Subsidiary from any third party to the extent any such Environmental
Remediation: (i) relates to events or conditions occurring or existing on or
prior to the Closing Date and (ii) is reasonably required by Environmental Laws;
provided that in no event shall Buyer=s obligations pursuant to this Section
9.5(a) exceed $4 million in the aggregate.
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(b) Seller shall perform all Environmental Remediations
subject to cost-sharing pursuant to Section 9.5 (a) hereof ("SHARED
REMEDIATIONS"). Notwithstanding any provision of this Agreement to the contrary,
Seller shall have no obligation to perform or provide indemnification for any
Environmental Remediation, and Buyer shall be solely responsible for and shall
indemnify and hold harmless Seller and the Asset Sellers against any Damages
relating to, any Environmental Remediation at or relating to any Plant or any
real property currently owned by any Transferred Subsidiary or leased by any
Transferred Subsidiary from any third party to the extent such Environmental
Remediation is not a Shared Remediation.
(c) Seller and Buyer agree that any Shared Remediation shall
be undertaken and performed in the most cost-effective manner reasonably
acceptable to the Governmental Authority with jurisdiction over the Shared
Remediation. Seller and Buyer shall cooperate and take all reasonable actions to
eliminate and minimize costs relating to any Shared Remediation, including
without limitation, if reasonably requested by Seller, Buyer shall impose deed
restrictions on properties subject to Shared Remediations limiting such
properties to future uses that will not result in materially greater
Environmental Remediation expenses than if such future uses were restructured to
industrial or commercial uses.
(d) In any Shared Remediation, Seller shall have sole
authority over communications and negotiations with any Governmental Authority;
PROVIDED HOWEVER, that Seller shall coordinate in advance with and obtain
approval from Buyer for such communication or negotiation, such approval not to
be unreasonable withheld, and Seller shall promptly provide Buyer with copies of
all written communications and a summary of all negotiations and oral
communications with Governmental Authorities relating to Shared Remediations.
(e) Buyer agrees that upon reasonable prior notice to Buyer,
Seller and Seller's agents and representatives shall have the right to enter
upon any property at which a Shared Remediation is being undertaken, or is
proposed to be undertaken, in order to initiate, implement or complete any
Shared Remediation. Seller shall use all reasonable efforts to conduct all
Shared Remediations in a manner which, to the extent practicable, avoids
interference with or minimizes any interference with Buyer's use of the property
subject to the Shared Remediation.
9.6. PRE-CLOSING LITIGATION. (a) After the Closing, Seller and
Buyer shall equally share the cost of and Damages with respect to any action,
suit, proceeding, dispute, claim or investigation arising out of or related to
the operations of the Analytical Instruments Business which is filed or
commenced at any time after the date of this Agreement and prior to the Closing
against Seller or any of its Affiliates or which is set forth in Section 9.6 of
the Seller Schedule ("PRE-CLOSING LITIGATION"); PROVIDED that in no event shall
Buyer=s obligations pursuant to this Section 9.6(a) exceed $4 million in the
aggregate; and PROVIDED FURTHER that in no event shall Buyer=s obligations with
respect to Damages (other than attorneys fees and costs of defense which shall
in no way be limited except as set forth in the preceding proviso) with respect
to item 3 of Section 9.6 of the Seller Schedule exceed $1 million.
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(b) Seller and Buyer shall cooperate and take all reasonable
actions to eliminate and minimize any Damages relating to any Shared Litigation.
Seller shall have the right to defend the Pre-Closing Litigation by appropriate
proceedings and shall have the sole power to direct and control such defense
(except for item 3 of Section 9.6 of the Seller Schedule, which Buyer shall have
sole power to direct and control) subject to cost-sharing pursuant to Section
9.6 (a) hereof ("SHARED LITIGATION"); PROVIDED that in no event shall Seller (or
Buyer, as the case may be) settle, compromise or offer to settle or compromise
any Shared Litigation without the prior written consent of Buyer (or Seller, as
the case may be) to all terms of such settlement or compromise; and PROVIDED
FURTHER that Buyer shall have the right to defend against any Pre-Closing
Litigation if Seller declines or fails to do so in a timely manner.
Notwithstanding any provision of this Agreement to the contrary, Seller shall
have no obligation to perform or provide indemnification for any Shared
Litigation. Buyer shall receive one-half of any proceeds received by Seller in
the final resolution after exhaustion of available appeals of item 3 of Section
9.6 of the Seller Schedule, up to a total payment to Buyer of $1 million. Buyer
shall allow Seller access to employees and records of the Analytical Instruments
Business relating to Shared Litigation.
9.7. NOTICES. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally,
if telecopied or mailed, first class mail, postage prepaid, return receipt
requested, or by overnight courier as follows:
(a) If to Seller:
The ▇▇▇▇▇▇-▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Buyer:
EG&G, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, requests, demands and
communications shall be deemed to have been received on the date of personal
delivery or telecopy, on the third Business Day after the mailing thereof or on
the first day after delivery by overnight courier.
9.8. ENTIRE AGREEMENT. This Agreement (including the Exhibits
and Schedules hereto) constitutes the entire agreement between the parties
hereto and supersedes all prior agreements and understandings, oral and written,
between the parties hereto with respect to the subject matter hereof.
9.9. BINDING EFFECT; BENEFIT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer on any Person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
9.10. BULK SALES LAW. Buyer and Seller each agree to waive
compliance by the other with the provisions of the bulk sales law of any
jurisdiction.
9.11. ASSIGNABILITY. This Agreement shall not be assignable by
Seller without the prior written consent of Buyer or by Buyer without the prior
written consent of Seller; provided, that Buyer may assign its rights and
obligations, in whole or in part, to one or more majority-owned subsidiaries of
Buyer so long as Buyer remains bound by all the terms of this Agreement to the
same extent as if no such assignment or assignments has been made.
9.12. AMENDMENT; WAIVER. This Agreement may be amended,
supplemented or otherwise modified only by a written instrument executed by the
parties hereto. No waiver by either party of any of the provisions hereof shall
be effective unless explicitly set forth in writing and executed by the party so
waiving. Except as provided in the preceding sentence, no action taken pursuant
to this Agreement, including without limitation, any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representations, warranties, covenants or
agreements contained herein, and in any documents delivered or to be delivered
pursuant to this Agreement and in connection with the Closing hereunder. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach.
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9.13. SCHEDULES AND EXHIBITS. Any fact or item which is
clearly disclosed on any Schedule or Exhibit to this Agreement or in the
Financial Information in such a way as to make its relevance to a representation
or representations made elsewhere in this Agreement or to the information called
for by another Schedule or other Schedules (or Exhibit or other Exhibits) to
this Agreement readily apparent shall be deemed to be an exception to such
representation or representations or to be disclosed on such other Schedule or
Schedules (or Exhibit or Exhibits), as the case may be, notwithstanding the
omission of a reference or cross-reference thereto. Any fact or item disclosed
on any Schedule or Exhibit hereto shall not by reason only of such inclusion be
deemed to be material and shall not be employed as a point of reference in
determining any standard of materiality under this Agreement.
9.14. OTHER COVENANTS. In addition to Seller's obligations set
forth in Section 2.5 hereof, to the extent that any consents needed to assign to
Buyer any of the Assets have not been obtained on or prior to the Closing Date,
this Agreement shall not constitute an assignment or attempted assignment
thereof if such assignment or attempted assignment would constitute a breach
thereof. If any such consent shall not be obtained on or prior to the Closing
Date, then (i) Seller and Buyer, if required under applicable law, shall use
their reasonable efforts in good faith to obtain such consent as promptly as
practicable thereafter and (ii) if in the reasonable judgment of Buyer such
consent may not be obtained, the parties shall use reasonable efforts in good
faith to cooperate, and to cause each of their respective Affiliates to
cooperate, in any lawful arrangement designed to provide for Buyer the benefits
under any such Assets.
9.15. SECTION HEADINGS; TABLE OF CONTENTS. The section
headings contained in this Agreement and the table of contents to this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
9.16. SEVERABILITY. If any provision of this Agreement shall
be declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement shall not be affected and
shall remain in full force and effect.
9.17. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
9.18. GOVERNING LAW; JURISDICTION AND SERVICE OF PROCESS. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York. Any suit, action or proceeding against any party with
respect to this Agreement may be brought in a court of the United States sitting
in the City of New York in the State of New York or in the Commonwealth of
Massachusetts or, if jurisdiction is lacking in such a court, in a court of
record in the State of New York or the Commonwealth of Massachusetts, and each
party hereto hereby irrevocably waives, to the
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fullest extent permitted by law, any objection that it may have, whether now or
in the future, to the laying of venue in, or to the jurisdiction of, any and
each of such courts for the purpose of any such suit, action or proceeding and
further waives any claim that any such suit, action or proceeding has been
brought in an inconvenient forum, and each hereby submits to such jurisdiction.
9.19. NO THIRD PARTY BENEFICIARIES. This Agreement is for the
sole benefit of the parties hereto and their respective successors and assigns
and nothing herein, express or implied, is intended to or shall confer upon any
other Person or entity any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
THE ▇▇▇▇▇▇-▇▇▇▇▇ CORPORATION
By:
---------------------------------
Name:
Title:
EG&G, INC.
By:
---------------------------------
Name:
Title: