ASSET PURCHASE AGREEMENT AMONG ARCH CHEMICALS, INC. ROCKWOOD SPECIALTIES INC. AND ADVANTIS TECHNOLOGIES, INC. Dated as of September 5, 2008
Exhibit
2.1
AMONG
ARCH
CHEMICALS, INC.
ROCKWOOD
SPECIALTIES INC.
AND
ADVANTIS
TECHNOLOGIES, INC.
Dated
as of September 5, 2008
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| ARTICLE IX | ||
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Annex
I -- Index of Defined Terms
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ASSET PURCHASE AGREEMENT (this “Agreement”) dated as
of September 5, 2008, among ROCKWOOD SPECIALTIES INC., a Delaware corporation
(“Parent”),
ADVANTIS TECHNOLOGIES, INC., a Delaware corporation and a direct, wholly owned
subsidiary of Parent (“Seller”), ARCH
CHEMICALS, INC., a Virginia corporation (“Purchaser”), and,
solely for the purposes of Section 5.05, Section 5.10 and Article IX, ROCKWOOD
HOLDINGS, INC., a Delaware corporation (“Holdings”).
WHEREAS Seller is engaged in the
business of (i) developing, manufacturing, marketing and selling pool and spa
treatment chemicals and water treatment chemicals for professional aquatic
applicators, turf and ornamental, aquaculture, vegetation management and
agricultural irrigation industries and (ii) professional treatment services
relating to the application of such chemicals in lakes, ponds, irrigation
systems, reservoirs and other agricultural applications (the “Business”);
WHEREAS Seller owns the Acquired Assets
and, upon the terms and conditions set forth in this Agreement, desires to
transfer, sell, convey, assign and deliver to Purchaser, and Purchaser desires
to purchase, acquire and accept, the Acquired Assets, free and clear of all
liabilities (other than Assumed Liabilities);
NOW, THEREFORE, in consideration of the
representations, warranties, covenants and agreements contained in this
Agreement, and subject to the conditions set forth in this Agreement, the
parties hereto hereby agree as follows:
Purchase
and Sale of Acquired Assets
SECTION
1.01. Purchase and Sale. On the terms and
subject to the conditions of this Agreement, at the Closing, Seller shall
transfer, sell, convey, assign and deliver to Purchaser, and Purchaser shall
purchase, acquire and accept from Seller, free and clear of all liabilities
(other than Assumed Liabilities) and all Liens (other than Permitted Liens), all
the right, title and interest as of the Closing of Seller in, to and under the
Acquired Assets, for (i) an aggregate purchase price of $130,000,000 (the “Purchase Price”),
payable as set forth in Section 2.02 and subject to adjustment as set forth in
Section 2.03 (the Purchase Price, as so adjusted, the “Final Purchase
Price”), and (ii) the assumption of the Assumed
Liabilities. The transactions described in the immediately preceding
sentence are collectively referred to in this Agreement as the “Acquisition”.
SECTION
1.02. Acquired Assets and Excluded
Assets. (a) The term “Acquired Assets”
means all the business, properties, assets, goodwill, rights and claims of
Seller, of whatever kind and nature, real or personal, tangible or intangible,
that are owned, leased or licensed by or on behalf of Seller on the Closing Date
and used or held for use in, or arising from, the operation or conduct of the
Business, except to the extent constituting Excluded Assets, including (to the
extent not constituting an Excluded Asset) all of Seller’s right, title and
interest in and to the following:
(i) all leaseholds and other interests
(including all prepaid rent, security deposits and options to renew or purchase)
in the real property listed on Section 1.02(a)(i) of the Seller Disclosure
Letter, in each case together with all right, title and interest of Seller to
and in all buildings, improvements and fixtures thereon and all other
appurtenances thereto;
(ii) all raw materials,
work-in-process, finished goods, supplies, parts, spare parts, packaging
materials and other inventories, wherever located (including in transit, on
consignment or in the possession of any third party), that are used or held for
use in, or arise from, the operation or conduct of the Business (collectively,
the “Inventory”);
(iii) all other tangible personal
property and interests therein, including all apparatus, materials, office
supplies, fixtures, tools, toolings, machinery, equipment, furniture,
furnishings and vehicles, wherever located, that are used or held for use in, or
arise from, the operation or conduct of the Business (the “Personal
Property”);
(iv) all accounts, accounts receivable,
pre-paid expenses, advance payments, prepayments, security deposits, deferred
charges, letters of credit, deposits, notes receivable and other rights to
payment (excluding any such items to the extent relating solely to Contracts
that are not Assigned Contracts) arising from the operation or conduct of the
Business (the “Receivables”);
(v) (A) all patents (including all
reissues, divisions, continuations and extensions thereof), patent applications,
trademarks, trademark registrations, trademark applications, servicemarks, trade
names, business names, domain names, brand names, copyrights, copyright
registrations, written invention disclosures, mask work rights, designs, design
registrations, chemical formulas and processes and all licenses and other rights
to any of the foregoing (“Intellectual
Property”), that are used or held for use in, or arise from, the
operation or conduct of the Business (such Intellectual Property, together with
the Assigned Technology, the “Assigned Intellectual
Property”), including all of the Intellectual Property listed on Section
3.07(a) of the Seller Disclosure Letter and all rights of Seller under
confidentiality agreements or other agreements designed to protect for Seller
its interests in the Assigned Intellectual Property and (B) all websites to
the extent used or held for use in, or that arise from, the operation or conduct
of the Business;
(vi) all trade secrets, confidential
information, inventions, know-how, formulae, processes, procedures, research
records, records of inventions, test information, market surveys and marketing
know-how (“Technology”) of
Seller that are used or held for use in, or arise from, the operation or conduct
of the Business (such Technology being the “Assigned
Technology”);
(vii) (A) all Permits issued to or
owned, used or possessed by Seller that are used or held for use in, or arise
from, the operation or conduct of the Business, to the extent transferable to
Purchaser under Applicable Law (the “Transferred
Permits”), and (B) all data and records relating to pesticide
registrations, including all data or submittal packages, specification proposals
and scientific, toxicological and technical studies, relating to the products of
the Business;
(viii) all Contracts that are listed on
Section 1.02(a)(viii) of the Seller Disclosure Letter, and all other Contracts
(including purchase orders and sales orders) (A) that are used or held for use
in, or arise from, the operation or conduct of the Business or (B) to which any
Acquired Asset is subject, in each case other than any guarantee issued by
Parent or any of its affiliates (other than Seller) in respect of any
obligations of the Business (but without limitation of Purchaser’s obligations
to discharge and perform any liabilities guaranteed thereunder that constitute
Assumed Liabilities) (collectively, the “Assigned
Contracts”);
(ix) the assets listed on Section
1.02(a)(ix) of the Seller Disclosure Letter and any other information technology
assets primarily related to the Business (collectively, the “Specified Information
Technology Assets”);
(x) all rights in and to products sold
or leased (including products returned after the Closing and rights of
rescission, replevin and reclamation) by Seller in the operation or conduct of
the Business;
(xi) all rights, claims, causes of
action and credits of Seller to the extent relating to any Acquired Asset or any
Assumed Liability or arising from the operation or conduct of the Business,
including all guarantees, warranties, indemnities and similar rights in favor of
Seller in respect of any Acquired Asset or any Assumed Liability;
(xii) all customer, vendor and supplier
lists, other distribution lists, files, documents and correspondence relating to
customers, suppliers and vendors of the Business, all sales and promotional
literature, manuals, product drawings, blueprints and schematics and all other
general, business, financial, accounting records, personnel records (to the
extent relating to Transferred Employees and permitted to be provided to
Purchaser pursuant to Applicable Laws), files, invoices and documents (including
books of account, ledgers and other records, and, in all cases, in any form or
medium), of Seller to the extent used or held for use in, or arising from, the
conduct or operation of the Business;
(xiii) all assets of or relating to any
Seller Benefit Plan that (A) are transferred to any employee benefit plan
maintained by Purchaser or any of its affiliates as expressly provided in
Section 5.07 or (B) transfer automatically to Purchaser or any of its affiliates
either pursuant to Applicable Law or in connection with any liability expressly
assumed by Purchaser pursuant to this Agreement (collectively, “Transferred Benefit Plan
Assets”);
(xiv) all refunds, credits and offsets
with respect to real property Taxes, personal property Taxes and similar ad
valorem obligations levied with respect to the Acquired Assets or the operation
or conduct of the Business, in each case, for any Post-Closing Tax Period;
and
(xv) all goodwill generated by or
associated with the Business.
(b) The term “Excluded Assets”
means:
(i) all cash and cash equivalents
(other than ▇▇▇▇▇ cash) and short-term investments of Seller;
(ii) all bank, brokerage and investment
accounts of Seller;
(iii) all rights, claims, causes of
action and credits of Seller to the extent relating to any Excluded Asset or any
Excluded Liability, including all guarantees, warranties, indemnities and
similar rights in favor of Seller in respect of any Excluded Asset or any
Excluded Liability;
(iv) all assets of the Seller Benefit
Plans, other than Transferred Benefit Plan Assets;
(v) all rights of Parent or Seller
under this Agreement and the other agreements and instruments executed and
delivered in connection with this Agreement (the “Ancillary
Agreements”);
(vi) all refunds, credits and offsets
with respect to Taxes (A) arising out of or relating to the Acquired Assets or
the operation of the Business, in each case, for any Pre-Closing Tax Period or
(B) of Seller for any taxable period (other than the refunds, credits and
offsets referred to in Section 1.02(a)(xiv) above);
(vii) all assets of Parent and its
affiliates that are used to provide general corporate services to Seller in the
same manner as generally provided to other affiliates of Parent, such as
accounting, insurance, tax, risk management, information technology, legal, cash
management and treasury services, other than the Specified Information
Technology Assets (collectively, “Administrative Assets”);
(viii) insurance policies carried by or
for the benefit of Seller or any affiliate of Seller, and all recoveries
thereunder and rights to assert claims thereunder (other than any insurance
policy listed on Section 1.02(a)(viii) of the Seller Disclosure
Letter);
(ix) the name “Rockwood” and any
variations and derivations thereof and goodwill associated therewith;
and
(x) the assets listed on Section
1.02(b)(x) of the Seller Disclosure Letter.
SECTION
1.03. Assumption of Certain
Liabilities. (a) Upon the terms and subject to
the conditions of this Agreement, Purchaser shall assume, effective as of the
Closing, and from and after the Closing Purchaser shall pay, perform and
discharge when due, only the following liabilities, obligations and commitments
of Seller (the “Assumed
Liabilities”), except to the extent constituting Excluded
Liabilities:
(i) all liabilities, obligations and
commitments of Seller under the Assigned Contracts and Transferred Permits to
the extent such liabilities, obligations and commitments arise from the
operation or conduct of the Business after the Closing;
(ii) all liabilities, obligations and
commitments to the extent arising from the ownership of the Acquired Assets or
the operation of the Business after the Closing;
(iii) all liabilities, obligations and
commitments of Seller that constitute “current liabilities”, but only to the
extent expressly set forth and quantified on the final and binding Closing
Statement and taken into account in the Closing Working Capital Amount (as set
forth on the final and binding Closing Statement);
(iv) all liabilities, obligations and
commitments for Taxes arising out of or relating to the Acquired Assets or the
operation or conduct of the Business, in each case, for any Post-Closing Tax
Period; and
(v) all liabilities, obligations and
commitments with respect to the Transferred Employees relating to employment or
employee benefits that Purchaser has specifically agreed to assume pursuant to
this Agreement (the “Covered Employee
Liabilities”).
(b) Notwithstanding anything
in Section 1.03(a) or any other provision of this Agreement or any Ancillary
Agreement to the contrary, and regardless of any disclosure to Purchaser,
Purchaser shall not assume or be liable for any liabilities, commitments or
obligations of Parent, Seller or any of their affiliates, of any kind, other
than the Assumed Liabilities (the “Excluded
Liabilities”), all of which shall be retained and paid, performed and
discharged when due by Parent, Seller or their affiliates, as applicable,
including the following:
(i) any Indebtedness of Parent, Seller
or any of their affiliates, or any Guarantee by Parent, Seller or any of their
affiliates of any Indebtedness;
(ii) any liability, obligation or
commitment (A) arising out of any actual or alleged breach by Parent, Seller or
any of their affiliates of, or nonperformance by Seller under, any Contract
(including any Assigned Contract) prior to the Closing or (B) accruing under any
Assigned Contract or Transferred Permit with respect to any period prior to the
Closing;
(iii) any liability, obligation or
commitment arising out of (A) any Proceeding, whether or not such Proceeding is
pending as of the Closing, arising from the operation or conduct of the Business
prior to the Closing or Seller’s ownership of any Acquired Asset or Excluded
Asset prior to the Closing or (B) any actual or alleged violation by Parent,
Seller or any of their affiliates of any Applicable Law prior to the
Closing;
(iv) any “current liability” of Seller
to the extent not expressly identified and quantified on the final and binding
Closing Statement and taken into account in the Closing Working Capital Amount
(as set forth on the final and binding Closing Statement);
(v) any liability, obligation or
commitment of Seller that relates to, or that arises from, any Excluded Asset,
or that arises out of the distribution to, or ownership or operation by, Seller
of the Excluded Assets or associated with the realization of the benefits of any
Excluded Asset;
(vi) any liability, obligation or
commitment for Taxes, whether or not accrued, assessed or currently due and
payable, (A) arising out of or relating to the Acquired Assets or the operation
or conduct of the Business, in each case, for any Pre-Closing Tax Period or (B)
of Seller for any taxable period, except as provided in Section 1.03(a)(iv)
(provided that for purposes of this clause (vi), Section 1.02(a)(xiv), Section
1.02(b)(vi) and Section 1.03(a)(iv), all real property Taxes, personal property
Taxes and similar ad valorem obligations levied with respect to the Acquired
Assets for a taxable period that includes (but does not end on) the Closing Date
shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax
Period based on the number of days during such taxable period elapsed on or
prior to the Closing Date and the number of days during such taxable period
elapsed after the Closing Date);
(vii) any liability, obligation or
commitment for transfer, documentary, sales, use, registration, value-added and
other similar Taxes (including all applicable real estate transfer Taxes and
real property transfer gains Taxes) and related amounts (including any
penalties, interest and additions to Tax) incurred in connection with this
Agreement, the Ancillary Agreements, the Acquisition and the other transactions
contemplated hereby and thereby (“Transfer
Taxes”);
(viii) any liability, obligation or
commitment, including any On-Site Environmental Liability, arising out of (A)
any actual or alleged violation of any Environmental Law prior to the Closing,
(B) any Release of Hazardous Materials at any location prior to the Closing, or
(C) any Environmental Claim arising from, based upon or relating to conditions
existing or events or omissions occurring prior to the Closing, in each case to
the extent arising out of or relating to the operation of the Business, the
Business Property or any other property currently or formerly owned, leased or
operated in connection with the Business;
(ix) any liability, obligation or
commitment relating to employment or employee benefits, other than the Covered
Employee Liabilities, including any liability, obligation or commitment relating
to any Business Employee receiving long-term disability benefits from Seller or
any of its affiliates or pursuant to any Seller Benefit Plan as of the Closing
Date;
(x) except to the extent expressly
provided to the contrary in Section 2.03(c), any liability, obligation or
commitment for any fees or expenses incurred by Parent, Seller or any of their
affiliates (including the fees and expenses of legal counsel, and fees and
expenses of any accountant, auditor, broker, financial advisor or consultant
retained by or on behalf of Parent, Seller or any of their affiliates) arising
from or in connection with this Agreement, the Ancillary Documents, the
Acquisition, any of the other transactions contemplated hereby or thereby or any
liquidation or dissolution of Seller following the Closing;
(xi) except as provided in Section
5.15, any liability, obligation or commitment arising out of or relating to any
Inventory manufactured, or any service provided, by Parent, Seller or the
Business prior to the Closing Date;
(xii) any liability, obligation or
commitment of Seller to Parent or any of their respective affiliates;
and
(xiii) except as otherwise provided in
Section 1.03(a), any liability, obligation or commitment of Parent or any of its
affiliates other than Seller.
SECTION
1.04. Consents of Third Parties; Certain
Permits. (a) Notwithstanding anything in this
Agreement to the contrary, this Agreement shall not constitute an agreement to
assign any Acquired Asset if an attempted assignment thereof, without the
consent of a third party, would constitute a breach or other contravention of
the rights of such third party, would be ineffective with respect to any party
to a Contract concerning such Acquired Asset, or would in any way adversely
affect the rights of Seller or, upon transfer, Purchaser under such Acquired
Asset. If any transfer or assignment by Seller to, or any assumption
by Purchaser of, any interest in, or liability, obligation or commitment under,
any Acquired Asset requires the consent of a third party, then such assignment
or assumption shall be made subject to such consent being
obtained. To the extent any Acquired Asset may not be assigned to
Purchaser by reason of the absence of any such consent, Purchaser shall not be
required to assume any Assumed Liabilities arising under such Acquired
Asset.
(b) If any consent referred
to in Section 1.04(a) is not obtained prior to the Closing, the failure of such
consent to be obtained shall not (subject to the parties’ compliance with the
provisions of Section 5.05) constitute a breach of any representation, warranty,
agreement or covenant contained herein, and Parent, Seller and Purchaser shall
cooperate (each at their own expense) in any lawful and reasonable arrangement
reasonably proposed by Purchaser under which Purchaser shall obtain the economic
claims, rights and benefits under the Acquired Asset with respect to which such
consent has not been obtained in accordance with this Agreement. Such
reasonable arrangement may include (i) the subcontracting, sublicensing or
subleasing to Purchaser of any and all rights of Seller against the other party
to such third-party agreement arising out of a breach or cancelation thereof by
the other party, and (ii) the enforcement by Seller of such
rights. To the extent, and only to the extent, Purchaser is able to
receive the economic claims, rights and benefits under such Acquired Asset,
Purchaser shall be responsible for the Assumed Liabilities, if any, arising
under such Acquired Asset.
(c) If any Transferred
Permit is not transferred to Purchaser at Closing, or any Permit issued to or
owned, used or possessed by Seller that is used or held for use in, or arises
from, the operation or conduct of the Business is to any extent not transferable
to Purchaser under Applicable Law (such Permits, the “Non-Transferable
Permits” and, together with the Transferred Permits, the “Business
Permits”):
(i) Parent, Seller and Purchaser shall
cooperate (each at their own expense), to the extent permitted by Applicable Law
and, without limiting the agreements set forth in Section 1.04(b), in a manner
that complies with the terms of each Contract pursuant to which such
Non-Transferable Permit is granted, to transfer to or otherwise make available
to Purchaser at the Closing, for two years following the Closing, all the rights
and benefits of Seller under such Business Permit and access to all data
packages (or the equivalent thereof) necessary in connection with such Business
Permit (whether through subregistrations, sublicenses, supplemental Permits or
other arrangements) in order to enable Purchaser to sell and distribute such
products of the Business that are manufactured under such Business Permit, using
product labels used by Seller in connection with such Business Permit, in
substantially the same manner as such products are currently sold and
distributed by Seller;
(ii) at all times during such two-year
period, each of Parent and Seller shall use its commercially reasonable efforts
to maintain such Business Permit in full force and effect at the expense of
Purchaser (other than, for the avoidance of doubt, any attorneys’ fees, internal
costs and other similar costs and expenses incurred by Parent, Seller or their
respective affiliates in the course of performing their obligations pursuant to
this Section 1.04(c)); and
(iii) to the extent, and only to the
extent, Purchaser is able to receive the claims, rights and benefits under such
Business Permit, Purchaser shall be responsible for the Assumed Liabilities, if
any, arising under such Business Permit.
Purchaser
shall indemnify Parent, Seller and their respective affiliates and
Representatives against, and hold them harmless from, any Losses arising from,
in connection with, as a result of or otherwise with respect to the arrangements
described in this Section 1.04(c), other than, for the avoidance of doubt, any
Losses with respect to which Seller or Parent has expressly provided an
indemnity to Purchaser hereunder and other than any Losses to the extent
constituting attorneys’ fees, internal costs and other similar costs and
expenses incurred by Parent, Seller or their respective affiliates in the course
of performing their obligations pursuant to this Section
1.04(c). Notwithstanding anything to the contrary in this Section
1.04(c), Purchaser shall be responsible for all filing, administrative and other
similar fees payable to any Governmental Entity in connection with the
arrangements contemplated by this Section 1.04(c) with respect to any Business
Permit.
The
Closing and Purchase Price Adjustment
SECTION
2.01. Closing
Date. The closing of the Acquisition (the “Closing”) shall take
place at the offices of Cravath, Swaine & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. on the fifth business day following the
satisfaction (or, to the extent permitted, waiver by the party or parties
entitled to the benefits thereof) of the conditions set forth in Article VI, or
at such other place, time and date as shall be agreed between Seller and
Purchaser. The date on which the Closing occurs is referred to in
this Agreement as the “Closing
Date”. The Closing shall be deemed to be effective at 11:59
p.m. New York time on the Closing Date.
SECTION
2.02. Transactions To Be Effected at the
Closing. At the Closing:
(a) Seller shall deliver to
Purchaser (i) such appropriately executed deeds (in recordable form), bills of
sale, assignments and other instruments of transfer relating to the Acquired
Assets in form and substance reasonably satisfactory to Purchaser and its
counsel and (ii) such other documents as Purchaser or its counsel may reasonably
request to demonstrate satisfaction of the conditions and compliance with the
covenants set forth in this Agreement; and
(b) Purchaser shall deliver
to Seller (i) payment, by wire transfer to a bank account designated in writing
by Seller (such designation to be made at least three business days prior to the
Closing Date), immediately available funds in an amount in U.S. dollars equal to
the Estimated Purchase Price and (ii) such other documents as Seller or its
counsel may reasonably request to demonstrate satisfaction of the conditions and
compliance with the covenants set forth in this Agreement.
SECTION
2.03. Estimated Working Capital; Purchase Price
Adjustment. (a) At least three business days
prior to the Closing Date, Seller shall deliver to Purchaser a written statement
setting forth its good faith estimate of the Closing Working Capital Amount (the
“Estimated Working
Capital Amount”), calculated in accordance with this Section
2.03. The Purchase Price payable on the Closing Date shall be
preliminarily adjusted in accordance with Section 1.01 and the manner
contemplated by this Section 2.03 as if the Estimated Working Capital
Amount was the actual Closing Working Capital Amount. The Purchase
Price as so preliminarily adjusted is referred to as the “Estimated Purchase
Price”.
(b) Within 60 days after the
Closing Date, Purchaser shall prepare and deliver to Seller a statement (the
“Closing
Statement”) setting forth its calculation of the Working Capital Amount
as of the close of business on the Closing Date (the “Closing Working Capital
Amount”). In no event shall any actions taken by or relating
to Purchaser or the Business following the Closing with respect to the
accounting books and records of the Business on which the Closing Statement is
to be based (including changes in any reserve or other account) or with respect
to the operations or results of the Business be considered in the determination
of, or otherwise have any effect on, the Closing Working Capital
Amount.
(c) During the 30-day period
following receipt by Seller of the Closing Statement, Seller and any of its
Representatives shall be permitted to review all books and records and other
information of Purchaser and its Representatives relating to the Closing
Statement. The Closing Statement shall become final and binding upon
the parties on the 30th day following delivery thereof, unless Seller gives
written notice of its disagreement with the Closing Statement (the “Notice of
Disagreement”) to Purchaser prior to such date which shall specify the
nature of any disagreement so asserted. Any Notice of Disagreement
shall (x) specify in reasonable detail the nature of the disagreement so
asserted and (y) only include disagreements that are based on mathematical
errors or based on the Closing Working Capital Amount not being calculated in
accordance with this Section 2.03. If a Notice of Disagreement is
given by Seller in a timely manner, then the Closing Statement (as revised in
accordance with this sentence) shall become final and binding upon Seller and
Purchaser on the earlier of (i) the date Seller and Purchaser resolve in writing
any differences they have with respect to the matters specified in the Notice of
Disagreement and (ii) the date any disputed matters specified in the Notice of
Disagreement are finally resolved in writing by PricewaterhouseCoopers LLP
(unless the parties agree in writing upon an alternative nationally recognized
independent public accounting firm, which shall not be Purchaser’s or Seller’s
or any of their respective affiliates’ independent accountants) (the “Accounting
Firm”). During the 30-day period following the delivery of a
Notice of Disagreement, Seller and Purchaser shall seek in good faith to resolve
in writing any differences that they may have with respect to the matters
specified in the Notice of Disagreement. During such 30-day period,
Purchaser and any of its Representatives shall be permitted to review all books
and records and other information of Seller and its Representatives relating to
the Notice of Disagreement. If, at the end of such 30-day period,
Seller and Purchaser are unable to so resolve any such differences, Seller and
Purchaser shall submit to the Accounting Firm for resolution any and all matters
that remain in dispute and that were included in the Notice of
Disagreement. The Accounting Firm, acting as experts and not as
arbitrators, shall be instructed to render its determination of all matters
submitted to it within 60 days following submission. Purchaser and
Seller agree that they shall be bound by the determination of the Accounting
Firm. Judgment may be entered upon the determination of the
Accounting Firm in any court having jurisdiction over the party against which
such determination is to be enforced. The fees and expenses of the
Accounting Firm incurred pursuant to this Section 2.03 shall be borne 50% by
Seller and 50% by Purchaser. The fees and disbursements of Seller’s
advisors incurred in connection with review of the Closing Statement and any
Notice of Disagreement shall be borne by Seller, and the fees and expenses of
Purchaser’s advisors incurred in connection with the Final Closing Statement and
any Notice of Disagreement shall be borne by Purchaser.
(d) For purposes of this
Agreement:
(i) “Target Working Capital
Amount” means $22.225 million.
(ii) “Working Capital
Amount” means an amount equal to (a) the amount of current assets of the
Business, minus (b) the amount of current liabilities of the Business, in the
case of each of clauses (a) and (b), as indicated on the Closing Statement and
calculated in accordance with GAAP, applied on a basis consistent with the
application of such principles in the preparation of the Financial Statements
(it being understood that notwithstanding anything herein to the contrary, in
determining the Working Capital Amount all Excluded Assets and Excluded
Liabilities shall be deemed not to be assets or liabilities, as applicable, of
the Business, as demonstrated in the illustrative calculation of the Working
Capital Amount as of the close of business on June 30, 2008 set forth on Section
2.03(d) of the Seller Disclosure Letter).
(e) The Final Purchase Price
shall be an amount equal to the Purchase Price adjusted as follows:
(i) if the Closing Working Capital
Amount is less than the Target Working Capital Amount, an amount equal to the
excess of the Target Working Capital Amount over the Closing Working Capital
Amount shall be deducted in calculating the Final Purchase Price;
and
(ii) if the Closing Working Capital
Amount is greater than the Target Working Capital Amount, an amount equal to the
excess of the Closing Working Capital Amount over the Target Working Capital
Amount shall be added in calculating the Final Purchase Price.
(f) If the Estimated
Purchase Price is less than the Final Purchase Price, Purchaser shall, and if
the Estimated Purchase Price is greater than the Final Purchase Price, Seller
shall, within five business days after the Closing Statement becomes final and
binding on the parties hereto, make payment to the bank account designated in
writing by Seller or Purchaser, as applicable, of an amount in cash in U.S.
dollars equal to such difference, together with interest thereon at a rate equal
to the rate of interest from time to time announced publicly by JPMorgan Chase
Bank, N.A., as its prime rate, calculated on the basis of the actual number of
days elapsed, divided by 365, from the Closing Date to the date of such
payment.
Seller hereby represents and warrants
to Purchaser that the statements contained in this Article III are true and
correct as of the date of this Agreement and as of the Closing Date, except as
set forth in the disclosure letter delivered by Seller to Purchaser on or prior
to the date of the execution and delivery by Parent and Seller of this Agreement
(the “Seller
Disclosure Letter”). The Seller Disclosure Letter shall be
arranged in numbered and lettered sections corresponding to the numbered and
lettered sections contained in this Article III, and the disclosure in any
section shall be deemed to qualify other sections in this Article III to the
extent (and only to the extent) that it is readily apparent from the face of
such disclosure that such disclosure also qualifies, applies or relates to such
other sections.
SECTION
3.01. Organization, Standing and Power. Each
of Parent and Seller is duly organized, validly existing and in good standing
under the laws of the State of Delaware and Seller has full corporate power and
authority necessary to enable it to own, lease or otherwise hold its properties
and assets and to conduct the Business as currently conducted. Seller
is duly qualified to do business as a foreign corporation in each jurisdiction
where the character of the Acquired Assets held by it or the nature of the
Business make such qualification necessary for it to conduct the Business as
currently conducted, except where the failure to so qualify has not had and
could not reasonably be expected to have, individually or in the aggregate, a
Seller Material Adverse Effect. Seller has delivered to Purchaser
true and complete copies of the certificate of incorporation and by-laws of
Seller, in each case as amended through the date of this
Agreement. Seller is a direct, wholly owned subsidiary of
Parent. Seller does not own, directly or indirectly, any capital
stock of, or other voting securities or other equity interests in, any
corporation, partnership, joint venture, association or other entity that does
not constitute a wholly owned subsidiary of Seller.
SECTION
3.02. Authority; Execution and Delivery;
Enforceability. Each of Parent and Seller has full
corporate power and authority to execute this Agreement and the Ancillary
Agreements to which it is, or is specified to be, a party and to consummate the
Acquisition and the other transactions contemplated hereby and
thereby. The execution and delivery by each of Parent and Seller of
this Agreement and the Ancillary Agreements to which it is, or is specified to
be, a party and the consummation by each of Parent and Seller of the Acquisition
and the other transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of Parent and Seller,
and no other corporate proceedings on the part of Parent or Seller are necessary
to authorize this Agreement and the Ancillary Agreements or the consummation of
the Acquisition and the other transactions contemplated hereby or
thereby. Each of Parent and Seller has duly executed and delivered
this Agreement and, prior to the Closing, will have duly executed and delivered
each Ancillary Agreement to which it is, or is specified to be, a party, and,
assuming the due execution and delivery of this Agreement and each Ancillary
Agreement by the other parties hereto and thereto, this Agreement constitutes,
and each Ancillary Agreement to which it is, or is specified to be, a party will
after the Closing constitute, its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency or similar laws relating to creditors’ rights generally and to
general principles of equity.
SECTION
3.03. No
Conflicts; Consents. The execution and delivery by Parent
and Seller of this Agreement and each Ancillary Agreement to which it is, or is
specified to be, a party, the consummation by Parent and Seller of the
Acquisition and the other transactions contemplated hereby and thereby and
compliance by Parent and Seller with the terms hereof and thereof do not and
will not conflict with, or result in any violation of or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancelation or acceleration of any obligation or to loss of a
benefit under, or to increased, additional, accelerated or guaranteed rights or
entitlements of any person under, or result in the creation of any Lien upon any
of the properties or assets of Parent or Seller under (any of the foregoing, a
“Conflict”),
any provision of (i) the certificate of incorporation or by-laws of Parent or
Seller, (ii) any Contract to which Parent or Seller is a party or to which the
Business, Parent, Seller or any of its properties or assets is subject, other
than Assigned Contracts, or (iii) any judgment, order, writ, injunction, legally
binding agreement with a Governmental Entity, stipulation or decree (“Judgment”) or any
statute, law (including common law), ordinance, rule or regulation (“Applicable Law”)
applicable to Parent or Seller or any of their respective properties or assets
(other than in connection with the transfer of Permits of the Business), other
than, in the case of clauses (ii) and (iii) above, any such items that,
individually or in the aggregate, have not had and could not reasonably be
expected to have a Seller Material Adverse Effect. No consent or
Permit (“Consent”) of, or
registration, declaration or filing with, any Federal, state or local government
or any court of competent jurisdiction, administrative agency or commission or
other governmental authority or instrumentality, in each case whether domestic
or foreign (each, a “Governmental
Entity”), is required to be obtained or made by or with respect to Parent
or Seller in connection with the execution and delivery of this Agreement or any
Ancillary Agreement, the consummation of the Acquisition or the other
transactions contemplated hereby and thereby or compliance with the terms hereof
and thereof, in each case other than compliance with and filings under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and in connection with the
transfer of Permits of the Business.
SECTION
3.04. Financial Statements;
Undisclosed Liabilities;
Internal Controls. (a) Section
3.04(a) of the Seller Disclosure Letter sets forth (i) the unaudited
balance sheet of the Business as of December 31, 2007, and the unaudited
consolidated statements of operations of the Business for the fiscal year ended
on December 31, 2007 (collectively, the “Fiscal 2007 Financial
Statements”) and (ii) the unaudited consolidated balance sheet of the
Business as of June 30, 2008 (the “Balance Sheet”) and
the unaudited statement of operations for the six-month period ended on such
date (collectively, the “Interim Financial
Statements” and, together with the Fiscal 2007 Financial Statements, the
“Financial
Statements”). The Financial Statements (A) were derived from
and are in accordance with the books and records of Seller, (B) have been
prepared in accordance with GAAP, consistently applied throughout the periods
covered thereby, and (C) fairly present in all material respects the financial
condition and results of operations of the Business as of the respective dates
thereof and for the respective periods indicated, except that (x) the Financial
Statements do not include footnotes (and the disclosure required therein) and
(y) the Interim Financial Statements would be subject to normal and recurring
year-end audit adjustments, which adjustments would not be
material.
(b) The Business does not
have any liabilities or obligations of any nature (whether accrued, absolute,
contingent, unasserted or otherwise) that would be required to be reflected on a
balance sheet of the Business or required to be disclosed in footnotes thereto,
in each case prepared in accordance with GAAP applied on a basis consistent with
the application of such principles in the preparation of the Financial
Statements, except (i) as expressly set forth in the Balance Sheet, (ii)
liabilities incurred after the date of the Balance Sheet in the ordinary course
of the Business consistent with past practice, (iii) Excluded Liabilities and
(iv) post-Closing performance obligations under the terms of Transferred Permits
and Assigned Contracts that would not be required to be reflected on a balance
sheet of the Business prepared in accordance with GAAP.
(c) Parent and its
consolidated subsidiaries (including Seller) (the “Parent Consolidated
Group”) have a system of internal controls over financial reporting (as
such term is used in Rule 13a-15 under the Securities and Exchange Act of 1934,
as amended) that is sufficient to provide reasonable assurance that transactions
are recorded as necessary to permit preparation of consolidated financial
statements of the Parent Consolidated Group for external purposes in accordance
with GAAP.
SECTION
3.05. Title
to Assets. Seller has good and valid title to all the
Acquired Assets, in each case free and clear of all mortgages, liens, security
interests, charges, easements, leases, subleases, covenants, rights of way,
options, claims, restrictions or encumbrances of any kind (collectively, “Liens”), except (a)
the Liens set forth on Section 3.05(a) of the Seller Disclosure Letter (the
Liens on such schedule marked with an asterisk to be discharged prior to the
Closing), (b) mechanics’, carriers’, workmen’s, repairmen’s or other like Liens
arising or incurred in the ordinary course of business that, assuming that
Purchaser pays all Assumed Liabilities when due, individually or in the
aggregate, do not materially impair, and could not reasonably be expected to
materially impair, the continued use and operation of the assets to which they
relate in the operation or conduct of the Business, (c) Liens for Taxes or
governmental assessments, charges or claims of payment not yet due or that are
being contested in good faith and which constitute Excluded Liabilities, (d) the
anti-assignment provisions of any Assigned Contract to which Seller is a Party
and (e) zoning restrictions, easements or other similar restrictions, so long as
the same do not, individually or in the aggregate, materially interfere with or
impair the use of such Business Property in the manner normally used in the
Business (the Liens described in clauses (a) through (e) above, “Permitted
Liens”).
SECTION
3.06. Real
Property. Neither Parent nor Seller holds any fee or other
ownership interest in any real property that is used in the operation or conduct
of the Business. Section 3.06 of the Seller Disclosure Letter sets
forth a true and complete list, as of the date of this Agreement, of all real
property in which Parent or Seller holds any leasehold interest and that is used
in the operation or conduct of the Business (each such property, a “Business Property”),
which list also sets forth the date of the lease, sublease, license or other
occupancy agreement constituting each such leasehold interest and the date of
any amendments and supplements thereto (collectively, a “Real Property
Lease”), as well as the names of the parties thereto. Seller
has delivered to Purchaser true and complete copies of each Real Property
Lease. Each Real Property Lease is in full force and effect and
neither Seller nor, to the knowledge of Seller, any of the other parties to such
Real Property Lease has received or given any notice of material default
thereunder which was not cured within the applicable grace period, no event has
occurred which, with the giving of notice or the passage of time, or both, would
constitute a material default by Parent, Seller or any of their affiliates under
any Real Property Lease and, to the knowledge of Parent or Seller, no event has
occurred which, with the giving of notice or the passage of time, or both, would
constitute a material default by any person (other than Parent, Seller or any of
their affiliates) under any Real Property Lease. The execution and
delivery by Parent and Seller of this Agreement and each Ancillary Agreement to
which it is, or is specified to be, a party, the consummation by Parent and
Seller of the Acquisition and the other transactions contemplated hereby and
thereby and compliance by Parent and Seller with the terms hereof and thereof do
not and will not constitute or result in a Conflict under any provision of any
Real Property Lease. Each Business Property is in compliance in all
material respects with all applicable provisions of any agreements to which such
Business Property is subject, local zoning requirements and all other Applicable
Laws. There are no pending or, to the knowledge of Parent or Seller,
threatened Proceedings that could have the effect of materially impairing or
restricting Seller’s access to any Business Property or the use thereof in the
conduct of the Business.
SECTION
3.07. Intellectual
Property. (a) Section 3.07(a) of the Seller
Disclosure Letter sets forth a true and complete list, as of the date of this
Agreement, of all patents and applications therefor, registered trademarks and
applications therefor, copyright registrations and all other product names of
the Business (whether or not constituting a trademark or trade name) that, in
each case, are owned, used, filed by or licensed to Seller and used or held for
use in, or arising from, the operation or conduct of the Business (such
Intellectual Property, the “Scheduled Intellectual
Property”). Such list clearly indicates whether such Scheduled
Intellectual Property is owned or licensed by Seller. All Scheduled
Intellectual Property has been duly registered and filed with or issued by each
appropriate Governmental Entity in each jurisdiction indicated for such
Scheduled Intellectual Property in Section 3.07(a) of the Seller Disclosure
Letter, all necessary affidavits of continuing use have been filed with respect
to such Scheduled Intellectual Property and all necessary maintenance fees have
been paid to continue all rights relating to such Scheduled Intellectual
Property in effect.
(b) Seller owns, or is
licensed or otherwise has the right to use (in each case without payments to
third parties and free and clear of any Liens), all Assigned Intellectual
Property (other than ordinary course license payments in respect of generally
available desktop software). Seller’s rights in and to the Assigned
Intellectual Property constitute sufficient rights in and to the Intellectual
Property used in the Business (other than Administrative Assets) such that the
rights in and to the Assigned Intellectual Property transferred to Purchaser at
Closing will be sufficient to enable Purchaser to operate the Business following
the Closing in all material respects in the same manner as presently conducted
by Seller.
(c) The operation of the
Business by Seller does not infringe or violate in any material respect the
rights of any person with regard to any Intellectual Property.
There is
no Proceeding pending or, to the knowledge of Parent or Seller, threatened with
respect to, and during the past three years neither Parent nor Seller nor, to
the knowledge of Seller, any of Seller’s customers or indemnitees has been
notified of any possible material infringement or other material violation by
the Business of the rights of any person with regard to any Intellectual
Property.
(d) To the knowledge of
Seller, no person is infringing on or otherwise violating any right of Seller in
any material respect with respect to any Assigned Intellectual
Property.
(e) Each inventor of the
claims of any patent that is material to the conduct of the Business and
constitutes Assigned Intellectual Property (each such patent, a “Material Patent”) and
each current or former director, officer, employee, contractor or consultant of
Seller has assigned or otherwise transferred to Seller all ownership and other
rights of any nature whatsoever of such person in any Material Patent and no
such person has a valid claim against Seller in connection with the involvement
of such person in the conception and development of any rights in any Material
Patent that could reasonably be expected to materially and adversely affect
Purchaser’s ability to exercise full rights of ownership of such Material Patent
after the Closing.
(f) The execution and
delivery of this Agreement and the Ancillary Agreements, the consummation of the
Acquisition and the other transactions contemplated hereby and thereby and the
compliance with the provisions hereof and thereof do not and will not conflict
with, or result in any violation or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancelation or
acceleration of any material Assigned Intellectual Property right or obligation
relating to any material Assigned Intellectual Property set forth in any
Contract to which Seller is a party, or to a loss of any material benefit
related thereto, or result in the creation of any Lien in or upon any Assigned
Intellectual Property related thereto, or give rise to any increased,
additional, accelerated or guaranteed rights or entitlements of any person
relating to material Assigned Intellectual Property under any such Contract, or
result in the creation of any Lien on any material Assigned Intellectual
Property.
(g) Section 3.07(g) of the
Seller Disclosure Letter sets forth a complete and accurate list of all options,
rights, licenses or interests of any kind relating to Assigned Intellectual
Property granted (i) to Seller (other than software licenses for generally
available desktop software and except pursuant to employee proprietary
inventions agreements (or similar employee agreements), non-disclosure
agreements and consulting agreements entered into by Seller in the ordinary
course of business), or (ii) by Seller to any other person (including any
obligations of such other person to make any fixed or contingent payments,
including royalty payments). All Contracts relating to the options,
rights, licenses and interests referred to in clause (i) of the immediately
preceding sentence (such Contracts, “Material Licenses”)
are valid, binding and in full force and effect and are enforceable by Seller in
accordance with their terms, subject to bankruptcy, insolvency or similar laws
relating to creditors’ rights generally and to general principles of
equity. Seller has performed all material obligations required to be
performed by it to date under each Material License and it is not (with or
without the lapse of time or the giving of notice, or both) in breach or default
in any material respect thereunder and, to the knowledge of Parent or Seller as
of the date of this Agreement, no other party to any Material License is (with
or without lapse of time or the giving of notice, or both) in breach or default
in any material respect thereunder.
(h) The Acquired Assets
(including the Specified Information Technology Assets), when taken together
with the Administrative Assets, are sufficient information technology assets for
the conduct of the Business as presently conducted by Seller.
SECTION
3.08. Contracts. (a) Section
3.08(a) of the Seller Disclosure Letter sets forth a true and complete list, as
of the date of this Agreement, of each Assigned Contract (a “Material Assigned
Contract”) to or by which Seller is a party or bound, or to which any of
the Business or the Acquired Assets are subject, that is or
includes:
(i) an employment agreement or
employment contract;
(ii) a collective bargaining agreement
or other Contract with any labor organization, union or
association;
(iii) a covenant not to compete or not
to engage in any activity or business, or pursuant to which any benefit is
required to be given or lost as a result of so competing or
engaging;
(iv) a Contract with (A) any
shareholder or affiliate of Seller or (B) any officer, director or employee of
Seller or any of its affiliates (other than employment agreements covered by
clause (i) above);
(v) a lease, sublease or similar
Contract (including any sale-leaseback arrangement) with any person under which
Seller is a lessor or sublessor of, or makes available for use to any person,
(A) any Business Property or (B) any portion of any premises otherwise occupied
by Seller;
(vi) a lease, sublease or similar
Contract (including any sale-leaseback arrangement) with any person under which
(A) Seller is lessee of, or holds or uses, any machinery, equipment, vehicle or
other tangible personal property owned by any person that is material to the
conduct of the Business or (B) Seller is a lessor or sublessor of, or makes
available for use by any person, any tangible personal property owned or leased
by Seller that is material to the conduct of the Business;
(vii) a Contract under which Seller
has, directly or indirectly, made any advance, loan, extension of credit or
capital contribution to, or other investment in, any person (other than
extensions of trade credit in the ordinary course of the Business);
(viii) a Contract granting a Lien upon
any Business Property, Assigned Intellectual Property or any other Acquired
Asset;
(ix) a Contract providing for
indemnification of any person with respect to liabilities relating to the
Business or any Acquired Asset, other than such provisions given in connection
with the sales of goods and services of the Business in the ordinary course of
business;
(x) a Contract (including consulting
and services agreements) which provides for “exclusivity” or any similar
requirement in favor of any person other than Seller or that requires or
obligates Seller to purchase specified minimum amounts of any
product;
(xi) a nondisclosure agreement,
confidentiality agreement or similar Contract entered into outside of the
ordinary course of the Business;
(xii) a Contract (excluding any
purchase order in the ordinary course of business) (A) involving future payment
of more than $50,000 by or to Seller (unless terminable without payment or
penalty upon no more than 30 days’ notice) or (B) providing for future
performance by the Business or Seller in consideration of amounts previously
paid to the Business or Seller, or which has resulted in deferred revenue under
GAAP of more than $50,000;
(xiii) a Contract for the sale of any
Acquired Asset in excess of $5,000 (other than Inventory sales in the ordinary
course of business) or the grant of any preferential rights to purchase any
Acquired Asset in excess of $5,000 or requiring the consent of any party to the
transfer thereof;
(xiv) a Contract with any Governmental
Entity;
(xv) a currency exchange, interest rate
exchange, commodity exchange or similar Contract;
(xvi) a Contract relating to any
completed, pending or proposed (A) joint venture, partnership or similar
arrangement, (B) acquisition or divestiture of any person, business or division
or (C) merger or reorganization;
(xvii) a Contract granting the other
party to such Contract or a third party “most favored nation” or similar
status;
(xviii) a Contract that prohibits the
hiring or solicitation for employment of employees of another
person;
(xix) a Contract that would purport to
bind any affiliate of Purchaser after it is assigned to Purchaser;
(xx) a Contract entered into in
connection with the settlement or other resolution of any Proceeding pursuant to
which Seller has any ongoing performance obligations; or
(xxi) a Contract other than as set
forth above to which Seller is a party or by which it or any of its assets or
businesses is bound or subject that is material to the Business or the use or
operation of the Acquired Assets.
(b) All Material Assigned
Contracts are valid, binding and in full force and effect and are enforceable by
Seller in accordance with their terms, subject to bankruptcy, insolvency or
similar laws relating to creditors’ rights generally and to general principles
of equity. Section 3.08(b)(i) of the Seller Disclosure Letter sets
forth a list as of the date of this Agreement of all Material Assigned Contracts
which require consent to assignment by Seller to Purchaser in connection with
the Acquisition or in respect of which the execution and delivery of this
Agreement or any of the Ancillary Agreements or the consummation of the
Acquisition or of any of the other transactions contemplated hereby or thereby
or the compliance with the provisions hereof or thereof would cause a
Conflict. Seller has performed all material obligations required to
be performed by it to date under the Material Assigned Contracts, and it is not
(with or without the lapse of time or the giving of notice, or both) in breach
or default in any material respect thereunder and, to the knowledge of Parent or
Seller as of the date of this Agreement, no other party to any Material Assigned
Contract is (with or without the lapse of time or the giving of notice, or both)
in breach or default in any material respect thereunder. Neither
Parent nor Seller has received any notice of the intention of any party to
terminate any Material Assigned Contract. Complete and correct copies
of all Material Assigned Contracts listed in or referred to in the Seller
Disclosure Letter, together with all modifications and amendments thereto, have
been delivered to Purchaser.
SECTION
3.09. Inventory. All Inventory set forth on
the Balance Sheet, and all Inventory set forth on the Closing Statement, is (a)
free of any material defect or deficiency and (b) properly stated on the Balance
Sheet or Closing Statement, as applicable, in accordance with GAAP (applied on a
consistent basis). Since the date of the Balance Sheet, there have
not been any write-downs of the value of, or establishment of any reserves
against, any inventory of the Business, except for write-downs and reserves in
the ordinary course of business and consistent with past practice.
SECTION
3.10. Personal Property. Each material item of
Personal Property is in all material respects in good working order (ordinary
wear and tear and obsolescence excepted). All leased Personal
Property of the Business is in all material respects in the condition required
of such property by the terms of the lease applicable thereto.
SECTION
3.11. Receivables. All the Receivables (a)
represent actual obligations incurred by the applicable account debtors and (b)
have arisen from bona fide transactions in the ordinary course of the
Business. All the Receivables set forth on the Balance Sheet, and all
the Receivables set forth on the Closing Statement, are properly stated thereon
in accordance with GAAP (applied on a consistent basis). Since the
date of the Balance Sheet, there have not been any write-offs as uncollectible
of any receivables, except for write-offs in the ordinary course of the Business
and consistent with past practice.
SECTION
3.12. Permits. Section 3.12 of the Seller
Disclosure Letter sets forth a true and complete list, as of the date of this
Agreement, of all certificates, registrations, franchises, licenses, permits,
authorizations, variances, exemptions, orders and approvals (“Permits”) issued or
granted to Seller by Governmental Entities and all pending applications of
Seller to any Governmental Entity for any of the foregoing that are used or held
for use in, and that are material to, the operation or conduct of the Business
(such permits, the “Material
Permits”). Seller has, directly or beneficially through an
Assigned Contract, been granted, holds, and has made, all Material Permits
necessary to the conduct of the Business as currently conducted. All
such Material Permits are validly held by Seller, and Seller is in compliance in
all material respects with all terms and conditions thereof. Seller
is the sole and exclusive owner of all such Material Permits and, except to the
extent restricted by Applicable Law, and subject to obtaining consents to
assignment of any applicable Assigned Contract identified on Section 3.08(b)(i)
of the Seller Disclosure Letter, has full right, power and authority to transfer
all such Material Permits to Purchaser or to grant to Purchaser
subregistrations, sublicenses and supplemental Permits thereunder that are
sufficient to transfer to Purchaser all the claims, rights and benefits of
Seller under such Material Permits. During the past three years,
neither Parent nor Seller has received notice of any Proceedings relating to the
revocation or modification of any such Material Permits. No
Proceeding is pending or, to the knowledge of Parent or Seller, threatened which
challenges the validity of any such Material Permit. None of such
Material Permits will be subject to suspension, modification, revocation or
nonrenewal as a result of the execution and delivery of this Agreement and the
Ancillary Agreements or the consummation of the Acquisition and the other
transactions contemplated hereby and thereby, except to the extent arising from
restrictions under Applicable Law.
SECTION
3.13. Insurance. Seller has in effect policies
of fire, liability, product liability, workers’ compensation, health and other
forms of insurance that provide insurance coverage for the Business and the
assets of the Business of the kinds, in the amounts and against the risks
required to comply with Applicable Law and against the risks of the sort
normally insured by similar businesses. During the past three years,
Seller has not been refused any insurance with respect to any property or asset
relating to, or any other aspect of, the Business, nor has such coverage been
limited by any insurance carrier to which it has applied for insurance or with
which it has carried insurance, and no notice of cancelation or termination has
been received with respect to any insurance policy with respect to the
Business.
SECTION
3.14. Sufficiency of Acquired Assets. The
Acquired Assets (together with the Excluded Assets specified in Section
1.02(b)(i)-(x)), comprise all the assets used or held for use by Seller in
connection with the Business. The Acquired Assets (together with the
Excluded Assets specified in Section 1.02(b)(i)-(x) and the provision by Seller
of the services under the Transition Services Agreement) are sufficient for the
operation and conduct of the Business by Purchaser immediately following the
Closing in substantially the same manner as currently conducted by
Seller. Other than Excluded Assets, none of Parent and its affiliates
(other than Seller) owns any properties, assets, goodwill or rights of whatever
kind and nature, real or personal, tangible
or intangible, that are used or held for use in, or arising from, the operation
or conduct of the Business.
SECTION
3.15. Taxes. (a) (i) All material
Tax Returns required to be filed by the Code or by applicable state, provincial,
local or foreign Tax laws to the extent such Tax Returns relate to the Acquired
Assets or the Business for Pre-Closing Tax Periods have been timely filed or
will be timely filed by Seller, (ii) all Taxes due on such Tax Returns that
could result in a Lien on the Acquired Assets or for which Purchaser could be
liable have been paid in full or will be timely paid in full by the due date
thereof, (iii) to the knowledge of Parent or Seller, no claims are being
asserted with respect to any Taxes with respect to the Acquired Assets or the
Business that could result in a Lien on the Acquired Assets and (iv) no Tax
Liens with respect to the Acquired Assets or the Business have been
filed.
(b) Seller is not a “foreign
person” within the meaning of Section 1445 of the Code.
SECTION
3.16. Proceedings. There is no material
Proceeding pending or, to the knowledge of Parent or Seller, threatened by or
against Seller or any of its affiliates with respect to the Business, nor is
there any material Judgment outstanding against, or, to the knowledge of Parent
or Seller, material investigation by any Governmental Entity involving, Seller
or any of its affiliates with respect to the Business.
SECTION
3.17. Benefit
Plans. (a) Section 3.17(a) of the Seller
Disclosure Letter sets forth a true and complete list, as of the date of this
Agreement, of each individual employment, retention, indemnification, severance,
change of control and consulting agreement with any employee of the Business to
which Seller is a party, each “employee benefit plan” within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”) and
each severance, retention, employment, consulting, “change of control”, bonus,
incentive (equity-based, equity-related or otherwise), deferred compensation,
employee loan, welfare benefit, fringe benefit and other benefit plan,
agreement, program, policy, commitment or other arrangement, in each case
sponsored, maintained or contributed to, or required to be sponsored, maintained
or contributed to, by Seller or any other person that, together with Seller, is
treated as a single employer under Section 414(b), (c), (m) or (o) of the Code
(each, a “Commonly
Controlled Entity”), or with respect to which Seller or any Commonly
Controlled Entity has any liability, in each case providing any compensation or
benefits to any employee of the Business (each such arrangement described in
this sentence is referred to herein as a “Seller Benefit
Plan”). Each Seller Benefit Plan or portion thereof that
Purchaser or any of its affiliates has explicitly agreed to assume pursuant to
this Agreement is referred to herein as an “Assumed Benefit
Plan”. Seller has (A) delivered to Purchaser true, complete
and correct copies of each Assumed Benefit Plan (or, in the case of any
unwritten Assumed Benefit Plans, written descriptions thereof), and (B) will
deliver promptly upon Purchaser’s request true and complete copies of (i) any
related trust agreement or funding instrument with respect to any Assumed
Benefit Plan, (ii) the most recent annual report on Form 5500 (including all
schedules and attachments thereto) filed with the Internal Revenue Service
(“IRS”) with
respect to each Assumed Benefit Plan (if any such report was required by
Applicable Laws) and (iii) the most recent IRS determination or opinion letter,
if applicable, with respect to each Assumed Benefit Plan.
(b) Each Assumed Benefit
Plan has been administered in accordance with its terms and in compliance with
the applicable provisions of ERISA, the Code, all other Applicable Laws and the
terms of all applicable collective bargaining agreements, in each case in all
material respects. Neither Parent nor Seller has received written
notice of any pending or in progress, and, to the knowledge of Parent or Seller,
there are no threatened (A) investigations by any Governmental Entity,
termination proceedings or other claims with respect to any Assumed Benefit Plan
(except routine claims for benefits payable under the Assumed Benefit Plans) or
(B) litigation against or involving any Assumed Benefit Plan or asserting any
rights to or claims for benefits under any Assumed Benefit Plan. The
Seller 401(k) Plan and corresponding trust intended to be qualified under
Sections 401(a) and 501(a) of the Code have received a favorable determination
letter from the IRS (or an application is pending) as to their qualification
under Sections 401(a) and 501(a) of the Code, and, nothing has occurred that
would reasonably be expected to cause the Seller 401(k) Plan or corresponding
trust to fail to qualify under Section 401(a) or 501(a) of the
Code.
(c) No Seller Benefit Plan
is subject to Title W of ERISA or Section 412 of the Code or is otherwise a
defined benefit pension plan. Neither Purchaser nor any of its
affiliates will incur any liability under Section 302 of ERISA, Title IV of
ERISA, Section 412 of the Code or the Coal Industry Retiree Health Benefit Act
of 1992, as amended, in each case, in connection with the Acquisition or any of
the other transactions contemplated by this Agreement or the Ancillary
Agreements. All payments, benefits, contributions and premiums
relating to each Assumed Benefit Plan have been timely paid or made in
accordance with the terms of such Assumed Benefit Plan and the terms of all
Applicable Laws or have been accrued in accordance with GAAP.
(d) (A) No Assumed
Benefit Plan (i) provides for deferred compensation, (ii) provides any welfare
benefits (other than on a self-pay basis) following termination of service or
employment or (iii) is a “multiple employer welfare arrangement” (as defined in
Section 3(40) of ERISA) and (B) no employee of the Business (i) has received any
loan from Parent or Seller that has an outstanding balance, (ii) has a right,
contingent or otherwise, to receive any guaranteed bonus (including any
retention bonus) from Parent or Seller, (iii) has the right to receive any
severance or separation pay or benefits from Parent or Seller, (iv) could
reasonably be expected to receive any payment or benefit from Seller or any of
its affiliates that would not be deductible to Purchaser as a result of Section
280G of the Code, (v) is entitled to any tax indemnification or tax gross-up
from the Parent or Seller or (vi) is, or at any time will become, entitled to
any payment, benefit or right, or any increased and/or accelerated payment,
benefit or right, as a result of (x) such employee’s termination of employment
with, or services to Seller or (y) the execution of this Agreement or the
consummation of the transactions contemplated by this Agreement.
SECTION
3.18. Absence
of Changes or Events. Since the date of the Balance Sheet,
there has not been any state of facts, change, effect, condition, development,
event or occurrence that has had or could reasonably be expected to have a
Seller Material Adverse Effect. Since the date of the Balance Sheet,
Seller has caused the Business to be conducted in the usual, regular and
ordinary course and in substantially the same manner as previously
conducted. Since the date of the Balance Sheet to the date of this
Agreement, neither Parent nor Seller has taken any action that, if taken after
the date of this Agreement without Purchaser’s consent, would constitute a
breach of Section 5.01.
SECTION
3.19. Compliance with Applicable Laws;
Environmental Matters. (a) The
Business is in compliance in all material respects with all Applicable
Laws. Neither Parent nor Seller has received any communication during
the past three years from a Governmental Entity or any other person that alleges
that the Business is not in compliance in any material respect with any
Applicable Law. This Section 3.19(a) does not relate to matters with
respect to Taxes, which are the subject of Section 3.15, or to environmental
matters, which are the subject of Section 3.19(b).
(b) During the past three
years, neither Parent nor Seller has received any communication from a
Governmental Entity or other person that alleges that the Business is not in
compliance in any material respect with, or has or may have material liability
under, any Environmental Law. Each of Seller and the Business has
been and is in compliance in all material respects with applicable Environmental
Laws, including possession of and compliance with all material Permits required
to conduct the Business under applicable Environmental Laws. There
are no Environmental Claims pending or, to the knowledge of Parent or Seller,
threatened against or affecting Seller with respect to the Business, and none of
the Business or Seller (with respect to the Business) or the Acquired Assets is
subject to, and neither the Business nor Seller has entered into or agreed to,
any Judgment relating to compliance with any Environmental Law or to
investigation or remediation of Hazardous Materials. No Hazardous
Materials have been generated, stored, used, transported or Released in, on, at,
under or from any Business Property, or any other property in connection with
the Business, in each case except in compliance in all material respects with,
and in a manner not reasonably expected to result in material liability under,
applicable Environmental Laws. No underground storage tanks, material
amounts of asbestos-containing materials or articles or equipment containing
polychlorinated biphenyls are currently located at, on, in or under any Business
Property. Seller has delivered to Parent true and complete copies of
all environmental studies, investigations and similar evaluations and reports
performed or obtained in connection with the facilities currently owned or
leased by the Business on or after May 12, 1995. Notwithstanding any
other provision of this Agreement (other than Sections 3.03, 3.04, 3.12 and
3.13), no representation or warranty is made in this Agreement except in this
Section 3.19(b) as to compliance with, or violation of, Environmental
Laws. For purposes of this Agreement:
(i) The term “Environmental Claim”
means any administrative, regulatory or judicial Proceeding, Judgment,
investigation or written or oral notice of noncompliance or violation by or from
any person alleging liability of whatever kind or
nature (including liability or responsibility for the costs of enforcement
proceedings, investigations, cleanup, governmental response, removal or
remediation, natural resource damages, property damages, personal injuries,
medical monitoring, penalties, contribution, indemnification and injunctive
relief) arising out of, based on or resulting from (A) the presence or Release
of, or exposure to, any Hazardous Materials at any location; or (B) the failure
to comply with any Environmental Law.
(ii) The term “Environmental Laws”
means any and all Applicable Laws, Judgments and Permits issued, promulgated or
entered into by any Governmental Entity, relating to pollution, preservation or
reclamation of natural resources, or to the protection of human health
(including occupational exposure to hazardous or harmful materials but excluding
worker safety) or the environment, in each case as in effect from time to time
before the Closing.
(iii) The term “Hazardous Materials”
means all explosive or radioactive materials or substances, hazardous or toxic
substances, wastes or chemicals, petroleum (including crude oil or any fraction
thereof) or petroleum distillates, asbestos or asbestos containing materials,
and all other materials, chemicals or wastes regulated pursuant to any
Environmental Law.
(iv) The term “Release” means any
spill, emission, leaking, pouring, emptying, pumping, injection, deposit,
disposal, discharge, dispersal, leaching, emanation or migration in, into, onto,
or through the environment (including ambient air, surface water, ground water,
soils, land surface or subsurface strata).
(c) Each product of the
Business (a “FIFRA
Product”) that is subject to regulation under the Federal Insecticide,
Fungicide and Rodenticide Act (“FIFRA”) (i) is
currently registered under FIFRA by the U.S. Environmental Protection Agency
(the “EPA”),
(ii) carries an EPA-approved label and (iii) is currently manufactured and sold
by the Business in compliance in all material respects with all applicable
statutory and regulatory requirements. Section 3.19(c) of the Seller
Disclosure Letter sets forth a true and complete list as of the date of this
Agreement of each FIFRA Product of the Business. All registration
fees and other financial obligations of the Business relating to the
registration under FIFRA of FIFRA Products and payable prior to the date hereof
have been paid in full, and all such amounts payable prior to the Closing will
be paid in full prior to the Closing. All FIFRA Products are
supported by data that either is owned by Seller or that Seller otherwise has
sufficient rights to use for support of such FIFRA Products and in respect of
which has satisfied all compensation obligations. Seller has full
right, power and authority to transfer to Purchaser ownership of all data or
citation rights for all FIFRA Products, other than to the extent restricted
under Applicable Law and subject to obtaining consents to assignment of any
applicable Assigned Contract identified on Section 3.08(b)(i) of the Seller
Disclosure Letter. There are no pending Proceedings or, to the
knowledge of Parent or Seller, threatened Proceedings or pending or threatened
investigations by any Governmental Entity relating to any FIFRA
Product.
(d) Each product of the
Business listed on Section 3.19(d) of the Seller Disclosure Letter is currently
registered in each state or territory listed next to such product on Section
3.19(d) of the Seller Disclosure Letter. Seller has paid (i) as of
the date of this Agreement, all state and territorial fees relating to the
registration of such products that are required to be paid on or prior to
December 31, 2008 and (ii) all state and territorial fees relating to the
registration of such products that are required to be paid on or prior to the
Closing Date will be paid on or prior to the Closing Date.
SECTION
3.20. Employee and Labor
Matters. (a) There is not any, and during the
past three years, there has not been any, material labor strike, dispute, work
stoppage or lockout pending, or, to the knowledge of Parent or Seller,
threatened, against or affecting the Business. None of the employees
of the Business is represented by a union or any other similar labor
organization and, to the knowledge of Parent or Seller, as of the date of this
Agreement no union organizational campaign is in progress with respect to the
employees of the Business and no question concerning representation of such
employees exists. Neither Parent nor Seller is engaged in any unfair
labor practice in connection with the operation or conduct of the
Business. There are not as of the date of this Agreement any pending,
or, to the knowledge of Seller, threatened, charges in connection with the
operation or conduct of the Business against or affecting Parent or Seller or
any current or former employee of the Business before the Equal Employment
Opportunity Commission or any other Federal, state or local agency responsible
for the prevention of unlawful employment practices. Neither Parent
nor Seller has received any notice during the past three years of the intent of
any Governmental Entity responsible for the enforcement of labor or employment
laws to conduct an investigation of or affecting the Business and, to the
knowledge of Parent or Seller, no such investigation is in
progress. Parent and Seller are in compliance in all material
respects with all Applicable Laws with respect to labor relations, employment
and employment practices, occupational safety and health standards, terms and
conditions of employment, payment of wages, classification of employees,
immigration, visa, work status, human rights, pay equity and workers’
compensation.
(b) Section 3.20(b) of the
Seller Disclosure Letter sets forth a true and complete list as of the date of
this Agreement of each employee of Seller employed primarily in the conduct of
the Business as of the date of this Agreement and the current annual salary
(including bonus) for each such person, including each such person’s title, date
of birth and work location and whether or not such person is on leave of absence
as of the date of this Agreement. Each employee of Seller who is
listed on Section 3.20(b) of the Seller Disclosure Letter as employed primarily
in the conduct of the Business as of the date of this Agreement but who does not
provide services exclusively to the Business is designated with an asterisk
thereon.
SECTION
3.21. Transactions with Affiliates. None of
Parent, Seller or any of their affiliates will be a party to any Assigned
Contract after the Closing. After the Closing, none of Parent, Seller
and their affiliates will have any interest in any property (real or personal,
tangible or intangible) or Contract used in or pertaining to the Business, other
than the Excluded Assets. Section 3.21(i) of the Seller Disclosure
Letter sets forth a true and complete list, as of the date of this Agreement, of
all products and services currently
provided to the Business by (a) any portion of the business, assets or employees
of Seller not constituting Acquired Assets or Business Employees or (b) any of
Seller’s affiliates.
SECTION
3.22. Suppliers. Section 3.22 of the Seller
Disclosure Letter sets forth a true and complete list as of the date of this
Agreement of each of the ten largest suppliers of the Business, based on the
aggregate purchase price paid by the Business for goods and services purchased
from such supplier during the most recent full fiscal year of the Business
(each, a “Major
Supplier”). Between the date of the Balance Sheet and the date
of this Agreement, there has not been (i) any material and adverse change, or,
to the knowledge of Seller, any indication of intent to cause any such change by
any Major Supplier, in the business relationship of the Business with any Major
Supplier or (ii) any material and adverse change in any term (including credit
terms) of the supply agreements or related arrangements with any Major
Supplier.
SECTION
3.23. Customers. Section 3.23 of the Seller
Disclosure Letter sets forth a true and complete list as of the date of this
Agreement of each of the ten largest customers (each, a “Major Customer”) of
the Business, based on sales (determined on a gross revenue basis) during its
most recent full fiscal year. Between the date of the Balance Sheet
and the date of this Agreement, there has not been (i) any material and adverse
change, or, to the knowledge of Seller, any indication of intent to cause any
such change by any Major Customer, in the business relationship of the Business
with any Major Customer or (ii) any material and adverse change in any term
(including credit terms) of the sales agreements or related agreements with any
Major Customer.
SECTION
3.24. Brokers. No broker, investment banker,
financial advisor or other person is entitled to any broker’s, finder’s,
financial advisor’s or other similar fee or commission in connection with the
Acquisition or any of the other transactions contemplated by this Agreement and
the Ancillary Agreements based upon arrangements made by or on behalf of Parent
or Seller.
SECTION
3.25. Exclusivity of Representations and
Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS AGREEMENT OR ANY ANCILLARY AGREEMENT OR IN ANY CERTIFICATE OR SCHEDULE
DELIVERED BY PARENT OR SELLER PURSUANT HERETO OR THERETO, PURCHASER UNDERSTANDS
AND AGREES THAT THE ACQUIRED ASSETS ARE BEING ACQUIRED “AS IS, WHERE IS” ON THE
CLOSING DATE, AND IN THEIR CONDITION ON THE CLOSING DATE “WITH ALL
FAULTS”. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY ANCILLARY AGREEMENT OR IN
ANY CERTIFICATE OR SCHEDULE DELIVERED BY PARENT OR SELLER PURSUANT HERETO OR
THERETO, SELLER MAKES NO REPRESENTATION OR WARRANTY, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AS TO THE
WORKMANSHIP OF THE ACQUIRED ASSETS OR THE ABSENCE OF ANY DEFECTS THEREIN,
WHETHER LATENT OR PATENT OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, CONCERNING
THE ACQUIRED ASSETS, THE BUSINESS OR ANY OTHER MATTER
WHATSOEVER. PURCHASER HEREBY DISCLAIMS ANY SUCH OTHER OR IMPLIED
REPRESENTATIONS OR WARRANTIES. NOTHING IN THIS SECTION 3.26 SHALL BE
CONSTRUED TO LIMIT IN ANY RESPECT THE REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS OF SELLER IN THIS AGREEMENT.
Representations
and Warranties of Purchaser
Purchaser hereby represents and
warrants to Parent and Seller that the statements contained in this Article IV
are true and correct as of the date of this Agreement and as of the Closing
Date.
SECTION
4.01. Organization, Standing and
Power. Purchaser is duly organized, validly existing and
in good standing under the laws of the State of Virginia and has full corporate
power and authority and possesses all Permits necessary to enable it to own,
lease or otherwise hold its properties and assets and to conduct its business,
other than such Permits the lack of which, individually or in the aggregate, has
not had and could not reasonably be expected to have a Purchaser Material
Adverse Effect. Purchaser has delivered to Seller true and complete
copies of the certificate of incorporation and by-laws of Purchaser, in each
case as amended through the date of this Agreement.
SECTION
4.02. Authority; Execution and Delivery;
Enforceability. Purchaser has full corporate power and
authority to execute this Agreement and the Ancillary Agreements to which it is,
or is specified to be, a party and to consummate the Acquisition and the other
transactions contemplated hereby and thereby. The execution and
delivery by Purchaser of this Agreement and the Ancillary Agreements to which it
is, or is specified to be, a party and the consummation by Purchaser of the
Acquisition and the other transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action on the part of Purchaser, and
no other corporate proceedings on the part of Purchaser are necessary to
authorize this Agreement and the Ancillary Agreements or the consummation of the
Acquisition and the other transactions contemplated hereby or
thereby. Purchaser has duly executed and delivered this Agreement and
prior to the Closing will have duly executed and delivered each Ancillary
Agreement to which it is, or is specified to be, a party, and, assuming the due
execution and delivery of this Agreement and each Ancillary Agreement by the
other parties hereto and thereto, this Agreement constitutes, and each Ancillary
Agreement to which it is, or is specified to be, a party will after the Closing
constitute, its legal, valid and binding obligation, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency or similar laws
relating to creditors’ rights generally and to general principles of
equity.
SECTION
4.03. No
Conflicts; Consents. The execution and delivery by
Purchaser of this Agreement and each Ancillary Agreement to which it is, or is
specified to be, a
party, the consummation by Purchaser of the Acquisition and the other
transactions contemplated hereby and thereby and compliance by Purchaser with
the terms hereof and thereof do not and will not constitute or result in any
Conflict under any provision of (i) the certificate of incorporation or by-laws
of Purchaser or any of its subsidiaries, (ii) any Contract to which Purchaser or
any of its subsidiaries is a party or to which Purchaser, any of its
subsidiaries or any of their respective properties or assets is subject or (iii)
any Judgment or Applicable Law applicable to Purchaser or any of its
subsidiaries or their respective properties or assets, other than, in the case
of clauses (ii) and (iii) above, any such items that, individually or in the
aggregate, have not had and could not reasonably be expected to have a Purchaser
Material Adverse Effect. No Consent of, or registration, declaration
or filing with, any Governmental Entity is required to be obtained or made by or
with respect to Purchaser or any of its subsidiaries in connection with the
execution and delivery of this Agreement or any Ancillary Agreement, the
consummation of the Acquisition or the other transactions contemplated hereby
and thereby or compliance with the terms hereof and thereof, in each case other
than compliance with and filings under the HSR Act and under or with respect to
the Permits of the Business.
SECTION
4.04. Proceedings. There are not any
(a) outstanding Judgments against or affecting Purchaser or any of its
subsidiaries, (b) Proceedings pending or, to the knowledge of Purchaser,
threatened against or affecting Purchaser or any of its subsidiaries or (c)
investigations by any Governmental Entity that are pending or, to the knowledge
of Purchaser, threatened against or affecting Purchaser or any of its
subsidiaries that, in any case, individually or in the aggregate, have had or
could reasonably be expected to have a Purchaser Material Adverse
Effect.
SECTION
4.05. Capital
Resources. Purchaser has, and will at the Closing and from
time to time thereafter as required by this Agreement have, access to sufficient
cash resources to pay the amounts required to be paid by Purchaser under this
Agreement.
SECTION
4.06. Brokers. No broker, investment banker,
financial advisor or other person is entitled to any broker’s, finder’s,
financial advisor’s or other similar fee or commission in connection with the
Acquisition or any of the other transactions contemplated by this Agreement and
the Ancillary Agreements based upon arrangements made by or on behalf of
Purchaser.
SECTION
4.07. Exclusivity of Representations and
Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS AGREEMENT OR ANY ANCILLARY AGREEMENT OR IN ANY CERTIFICATE OR SCHEDULE
DELIVERED BY PURCHASER PURSUANT HERETO OR THERETO, PURCHASER MAKES NO
REPRESENTATION OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY CONCERNING ANY MATTER
WHATSOEVER. SELLER AND PARENT HEREBY DISCLAIM ANY SUCH OTHER OR
IMPLIED REPRESENTATIONS OR WARRANTIES. NOTHING IN THIS SECTION 4.07
SHALL BE CONSTRUED TO LIMIT IN ANY RESPECT THE REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS OF PURCHASER IN THIS AGREEMENT.
Covenants
SECTION
5.01. Covenants of Parent and Seller Relating to Operation and
Conduct of the Business. (a) Except to the
extent set forth in Section 5.01 of the Seller Disclosure Letter or otherwise
expressly permitted or required by the terms of this Agreement, from the date of
this Agreement to the Closing, Seller shall conduct the Business in the usual,
regular and ordinary course in substantially the same manner as previously
conducted (including by using all commercially reasonable efforts to keep intact
the Business, keep available the services of the current employees of the
Business and preserve the relationships of the Business with customers,
suppliers, licensors, licensees, distributors and others with whom the Business
deals to the end that the Business shall be unimpaired at the
Closing). In addition (and without limiting the generality of the
foregoing), from the date of this Agreement to the Closing, except to the extent
set forth in Section 5.01 of the Seller Disclosure Letter or otherwise expressly
permitted or required by the terms of this Agreement, Seller shall not do any of
the following in connection with the Business without the prior written consent
of Purchaser (which consent shall not be unreasonably withheld, conditioned or
delayed):
(i) adopt or amend in any material
respect any Assumed Benefit Plan (or any plan that would be an Assumed Benefit
Plan if adopted) or enter into, adopt, extend (beyond the Closing Date), renew
or amend any collective bargaining agreement or other Contract with any labor
organization, union or association, except in each case (A) as required by
Applicable Law or (B) to the extent such Seller Benefit Plan or Contract would
not constitute an Assumed Benefit Plan or give rise to an Acquired Asset or an
Assumed Liability;
(ii) (A) except to the extent required
under Applicable Law or any Seller Benefit Plan in effect on the date of this
Agreement, (1) grant to any employee of the Business any increase in
compensation, bonus or fringe or other benefits, other than increases in the
ordinary course of business consistent with past practice that constitute with
respect to any such employee an aggregate increase in such remuneration that is
less than 4%, (2) grant or pay any severance or termination pay or increase in
any manner the severance or termination pay of any employee of the Business, or
(3) take any action to accelerate the vesting or payment of any compensation or
benefit of any employee of the Business; or
(B) transfer any employee of the
Business from the Business to any other business conducted by Seller or any of
Seller’s affiliates or from Seller to any of Seller’s affiliates or transfer any
employee of any other business conducted by Seller or any of Seller’s affiliates
to the Business;
(iii) incur or assume any Indebtedness
or other liabilities or obligations for borrowed money or guarantee any
Indebtedness or other liabilities or obligations, other than (A) in the ordinary
course of business and consistent with past practice or (B) to the extent such
Indebtedness, liabilities or obligations will be discharged prior to the Closing
Date;
(iv) permit, allow or suffer any
Acquired Asset to become subjected to any Lien of any nature whatsoever other
than Liens (A) to the extent constituting a Permitted Lien or (B) to the extent
such Lien that will be released prior to the Closing Date with no consent or
other action required from the holder of such Lien in connection with such
release;
(v) (A) pay, discharge, settle or
satisfy any claims, liabilities, obligations or Proceedings other than in the
ordinary course of business consistent with past practice and in accordance with
their terms, or (B) waive, assign, transfer or release any claims or rights
of material value;
(vi) sell, transfer or lease any of its
assets (other than Excluded Assets) to, or enter into any agreement or
arrangement to do any of the foregoing with, Parent or any of its
affiliates;
(vii) make any change in any method of
accounting or accounting practice or policy other than those required by
GAAP;
(viii) acquire by merging or
consolidating with, or by purchasing a substantial portion of the assets of, or
by any other manner, any business or any corporation, partnership, association
or other business organization or division thereof or otherwise acquire any
assets (other than inventory) that is material, individually or in the
aggregate, to the Business; provided that Seller
may acquire assets (A) pursuant to capital expenditures permitted pursuant to
Section 5.01(a)(ix), (B) to the extent replacing or repairing damaged assets and
(C) to comply with requirements imposed by Applicable Law;
(ix) make, incur or pay any capital
expenditures in excess of $40,000 in the aggregate not disclosed in the capital
expenditure budget of the Business provided to Purchaser prior to the date of
this Agreement;
(x) sell, lease, license or otherwise
dispose of any Acquired Asset, except inventory and obsolete or excess equipment
sold in the ordinary course of business and consistent with past
practice;
(xi) enter into or modify or amend in
any material respect any lease of real property;
(xii) enter into any Contract (A) of a
type described in Section 3.08(a)(iii), 3.08(a)(iv), 3.08(a)(x), 3.08(a)(xii) or
3.08(a)(xix), (B) of a type described in Section 3.08(a)(v) or 3.08(a)(vi)
which, in the case of this clause (B), constitutes a sale-leaseback arrangement
or (C) if such Contract would constitute an Assigned Contract
and the execution and delivery by Parent and Seller of this Agreement or any
Ancillary Agreement to which it is, or is specified to be, a party, the
consummation by Parent and Seller of the Acquisition and the other transactions
contemplated hereby and thereby or compliance by Parent and Seller with the
terms hereof and thereof would constitute or result in a Conflict under any
provision of such Contract;
(xiii) engage in (A) (i) any trade
loading practices or (ii) any other promotional sales or discount activity with
any customers or distributors with the effect of accelerating to pre-Closing
periods sales to the trade or otherwise that would otherwise be expected (based
on past practice) to occur in post-Closing periods, (B) any practice which would
have the effect of accelerating to pre- Closing periods collections of
receivables that would otherwise be expected (based on past practice) to be made
in post-Closing periods or (C) any practice which would have the effect of
postponing to post-Closing periods payments due in connection with the operation
or conduct of the Business that would otherwise be expected (based on past
practice) to be made in pre-Closing periods, except in the case of clauses
(A)(ii), (B) and (C) to the extent not inconsistent with past
practice;
(xiv) except to the extent required
under Applicable Law, make or change any deemed or express Tax election, change
any Tax accounting period or method, or settle or compromise any liability with
respect to Taxes, in each case, which could increase the Tax liability of
Purchaser after the Closing Date; or
xv) authorize any of, or commit or
agree to take, whether in writing or otherwise, to do any of, the foregoing
actions.
(b) Advice of
Changes. (i) Until the Closing or the earlier
termination of this Agreement, Parent and Seller shall promptly advise Purchaser
in writing of (i) the occurrence of any change or event of which it has
knowledge, or of which it becomes aware, that, individually or in the aggregate,
has resulted or could reasonably be expected to result in any of the conditions
to Purchaser’s obligations to consummate the transactions contemplated by this
Agreement not being satisfied, (ii) upon acquiring knowledge thereof, the
institution or the threat of institution of any Proceeding against or
investigation of Seller or any of its affiliates related to this Agreement or
the transactions contemplated hereby and (iii) the hiring of any new employees
of the Business and the departure or termination of any employees of the
Business. Until the Closing or the earlier termination of this
Agreement, Purchaser shall promptly advise Seller and Parent in writing (i) of
the occurrence of any change or event of which it has knowledge, or of which it
receives notice, that has resulted or could reasonably be expected to result in
any of the conditions to Seller’s obligations to consummate the transactions
contemplated by this Agreement not being satisfied and (ii) upon acquiring
knowledge thereof, the institution or the threat of institution of any
Proceeding against or investigation of Purchaser or any of its affiliates
related to this Agreement or the transactions contemplated hereby. In
addition, and without limiting the foregoing, upon obtaining knowledge thereof,
Parent and Seller shall give prompt notice to Purchaser of any representation or
warranty made by Seller contained in this Agreement becoming untrue or
inaccurate if such representation or warranty were made as of the date of this
Agreement or as of the date such knowledge is obtained; provided, however, that no such
notification shall affect the representations, warranties, covenants, agreements
in this Agreement or the Ancillary Agreements for purposes of determining the
satisfaction of the conditions set forth in Article VI or of determining whether
any person is entitled to indemnification pursuant to Article VIII; and provided, further, that
Purchaser shall not be entitled to indemnification pursuant to Section
8.01(a)(ii) in connection with any failure, in and of itself, by Parent or
Seller to give any such notification.
(ii) Parent and Seller shall confer
with Purchaser in good faith on a regular and frequent basis to apprise
Purchaser of, and respond to inquiries of Purchaser with respect to, the general
status of ongoing operations of the Business, including with respect to the
status of the customer and supplier relationships of the Business.
(c) Application of Insurance
Proceeds. Upon any damage, destruction or loss to any Acquired
Asset prior to the Closing, Seller shall use its commercially reasonable efforts
to collect any insurance applicable to such damage, destruction, loss or
liability and shall apply any and all insurance proceeds received with respect
thereto to the prompt repair, replacement and restoration thereof to the
condition of such Acquired Asset before such event or, if required, to such
other (better) condition as may be required by Applicable Law. In
addition, (x) to the extent Seller has a pending claim prior to the Closing with
respect to any Assumed Liability under any insurance applicable thereto, Seller
shall use its commercially reasonable efforts to collect the proceeds of such
insurance, and (y) to the extent Seller receives any proceeds of such insurance
prior to the Closing in respect of any Assumed Liability, Seller shall apply
such insurance proceeds to the prompt payment of or other resolution of such
Assumed Liability.
SECTION
5.02. No
Solicitation. Parent and Seller shall not, nor shall
either of them authorize or permit any of its affiliates or any of its or their
respective Representatives to, (i) directly or indirectly solicit, initiate,
encourage, induce or facilitate the submission, amendment or modification of any
Acquisition Proposal or (ii) directly or indirectly enter into, continue or
otherwise participate in any discussions or negotiations regarding, or furnish
to any person any information with respect to, or otherwise cooperate in any way
with any person in connection with, or take any other action to facilitate, make
effective, implement or consummate, any Acquisition Proposal or any inquiries
regarding, or the making of any proposal that constitutes, or that may
reasonably be expected to lead to, any Acquisition Proposal. Without
limiting the foregoing, it is agreed that any violation of the restrictions set
forth in this Section 5.02 by any Representative of Seller or Parent or any of
Seller or Parent’s affiliates shall constitute a breach of this Section 5.02 by
Seller or Parent, as the case may be.
SECTION
5.03. Access
to Information. (a) Seller shall, and Parent
shall cause Seller to, afford to Purchaser and its accountants, counsel and
other Representatives reasonable access, upon reasonable notice during normal
business hours during the period prior to the Closing, to all the personnel,
properties, books, contracts, commitments, Tax Returns
and records of the Business (other than the Excluded Assets), and during such
period shall furnish promptly to Purchaser any information concerning the
Business as Purchaser may reasonably request; provided, however, that (i)
Purchaser shall exercise its rights under this Section 5.03(a) in such a manner
as to not unreasonably interfere with the operation of the Business and (ii)
Seller may limit such access described above to the extent such access (x)
would, in the opinion of Seller’s counsel, violate Applicable Law or (y) would
require Seller, Parent or any of their affiliates to waive any attorney-client
privilege.
(b) Books and
Records.
(i) Seller will (and will
cause its affiliates to), for a period of five years after the Closing Date,
retain and make available to Purchaser and its Representatives for examination
and copying, at Purchaser’s expense and upon reasonable notice, all books,
records and files related to the Business that are Excluded Assets (other than
those covered by Section 5.12(c)) for any reasonable purpose of Purchaser, such
as for use in financial reporting of the defense or prosecution of proceedings
or claims. Such records may be destroyed or disposed of prior to the
end of such five year period, provided that written notice thereof is first
given to Purchaser and Purchaser is afforded a reasonable opportunity at its own
expense to make copies (or take possession) of all or any part of such
records.
(ii) Purchaser will (and
will cause its affiliates to), for a period of five years after the Closing
Date, retain and make available to Seller and its Representatives for
examination and copying, at Seller’s expense and upon reasonable notice, all
books, records and files related to the Business that are Acquired Assets (other
than those covered by Section 5.12(c)) for any reasonable purpose of Seller,
such as for use in financial reporting or the defense or prosecution of
Proceedings or claims. Such records may be destroyed or disposed of
prior to the end of such five year period, provided that written notice thereof
is first given to Seller and Seller is afforded a reasonable opportunity at its
own expense to make copies (or take possession) of all or any part of such
records.
SECTION
5.04. Confidentiality. (a) Purchaser
acknowledges that the information being provided to it in connection with the
Acquisition and the consummation of the other transactions contemplated hereby
and by the Ancillary Agreements is subject to the terms of the confidentiality
agreement between Purchaser and Seller dated as of November 26, 2007 (the “Confidentiality
Agreement”), the terms of which are incorporated herein by
reference.
(b) Parent and Seller shall
keep confidential, and cause their affiliates and Representatives to keep
confidential, all information relating to the Business, except (i) as required
by Applicable Law or administrative process or pursuant to the applicable rules
or regulations of, or any listing or similar agreement with, any United States
or foreign stock exchange, (ii) for information that is available to the public
on the Closing Date, or thereafter becomes available to the public other than as
a result of a breach of this Section 5.04(b)
and (iii) for disclosure to accountants and legal counsel of Parent or Seller to
the extent that (A) such persons require such information in performing
customary services for Parent or Seller and (B) each such person agrees in
writing to keep confidential all such information on the same terms as set forth
or referred to in this Section 5.04. The covenant set forth in this Section
5.04(b) shall terminate three years after the Closing Date.
SECTION
5.05. Required Actions. (a) Upon
the terms and subject to the conditions set forth in this Agreement, each of the
parties hereto agrees to use its commercially reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Acquisition and the other transactions contemplated by this
Agreement and the Ancillary Agreements.
(b) In connection with and
without limiting Section 5.05(a), promptly following the execution and delivery
by the parties of this Agreement, the parties shall (i) make all necessary
registrations, declarations and filings with Governmental Entities that are
required in connection with the consummation of the Acquisition and the other
transactions contemplated by this Agreement and the Ancillary Agreements and
(ii) use their respective commercially reasonable efforts to take all other
actions required to be taken in order to obtain all Consents and nonactions
required to be obtained from Governmental Entities in connection with the
consummation of the Acquisition and the other transactions contemplated by this
Agreement and the Ancillary Agreements and in order to eliminate each other
impediment that may be asserted by such Governmental Entities, in each case with
respect to the Acquisition and the other transactions contemplated by this
Agreement and the Ancillary Agreements, in each case so as to enable the Closing
to occur as soon as reasonably possible. Notwithstanding anything to
the contrary in this Section 5.05, Purchaser shall in no event be required to
offer or agree to (A) dispose of, hold separate or limit its operation of any
portion of the Business or of its or its subsidiaries’ other businesses, assets
or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or
exercise full rights of ownership of, the Acquired Assets or any of its or its
subsidiaries’ other businesses, assets or properties, (C) limit its or its
subsidiaries’ ability to effectively control the Business or any of its or its
subsidiaries’ other businesses, assets or properties.
(c) In connection with and
without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall
(i) as promptly as practicable, but in no event later than five business days,
following the execution and delivery of this Agreement, file or cause to be
filed with the Federal Trade Commission and the United States Department of
Justice the initial notification and report form under the HSR Act required for
the transactions contemplated hereby, (ii) cooperate in responding promptly to
any Request for Additional Information and Documentary Material under the HSR
Act or other request for further information from any Governmental Authority in
respect of such filings and the transactions contemplated by this Agreement,
(iii) use their respective commercially reasonable efforts to seek to terminate
any waiting periods under the HSR Act as soon as practicable (it being agreed
that nothing in this clause (iii) shall require any party to take any action
referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other
party and the other party’s counsel as promptly as practicable with all such
information and reasonable assistance as may be reasonably required in order to
effectuate the foregoing actions.
(d) In connection with and
without limiting Section 5.05(a), prior to the Closing and for a period of 12
months thereafter, each party shall, and shall cause its affiliates to, use its
commercially reasonable efforts (at its own expense, except as otherwise
expressly provided herein) to obtain, and to cooperate in obtaining, all
consents from third parties and Governmental Entities necessary or appropriate
to permit the transfer of the Acquired Assets to, and the assumption of the
Assumed Liabilities by, Purchaser; provided, however, that the
parties shall not be required to pay or commit to pay any amount to (or incur
any obligation in favor of) any person from whom any such consent may be
required (other than filing or application fees).
(e) Notwithstanding anything
in this Agreement to the contrary, nothing in this Section 5.05 shall require
Purchaser to (i) consent to any action or omission by Parent or Seller that
would be inconsistent with Section 5.01 absent such consent or (ii) agree
to amend or waive any provision of this Agreement or any Ancillary
Agreement.
(f) Purchaser and Seller
shall each keep the other informed in all material respects, and on a reasonably
timely basis, of any material communication received by such party from, or
given by such party or its affiliates to, any Governmental Entity and, to the
extent reasonably practicable, to consult with each other in advance of any
meeting or conference with any Governmental Entity regarding the transactions
contemplated by this Agreement and the Ancillary Agreements, provided that
nothing in this Section 5.05(f) shall be deemed to require that any party take
any action that would result in the waiver of any attorney-client
privilege. To the extent reasonably practicable, neither Seller nor
Purchaser shall independently participate in a telephone call or meeting with a
Governmental Entity regarding the transactions contemplated hereby or any of the
matters described in this Section 5.05 without using its commercially reasonable
efforts to give the other prior notification of the call or meeting and, unless
prohibited by such Governmental Entity or not reasonably practicable, the
opportunity to attend and participate.
SECTION
5.06. Expenses. Whether or not the Closing
takes place, and except as expressly set forth in the last sentence of Section
1.04(c), in Section 2.03(c) and in Article VIII, all costs and expenses incurred
in connection with this Agreement and the Ancillary Agreements and the
transactions contemplated hereby and thereby shall be paid by the party
incurring such expense, including all costs and expenses incurred pursuant to
Sections 1.04 and 5.05.
SECTION
5.07. Employee
Matters. (a) (i) From and after the
date that there has been a public announcement of this Agreement, and subject to
Applicable Laws, Seller shall provide Purchaser with reasonable access, upon
reasonable prior notice and during normal business hours, to the employees of
Seller and the properties and personnel
records (including performance appraisals, disciplinary actions, grievances and
medical records) of the Business Effective as of 11:59 p.m., New York City time,
on the Closing Date, Purchaser shall, or shall cause its affiliates to, make
offers of employment to each employee of Seller who provides services primarily
with respect to the Business (each such employee, a “Business Employee”),
other than those individuals identified on Section 5.07(a)(i) of the Seller
Disclosure Letter, provided that such
Business Employee is actively employed by Seller in the conduct of the Business
as of the Closing. Purchaser shall, or shall cause its affiliates to,
offer employment to each Business Employee who is not actively employed in the
conduct of the Business as of the Closing Date due to approved leave of absence,
vacation or absence due to short-term disability, provided that such
Business Employee presents himself or herself for active employment with
Purchaser and its affiliates in the conduct of the Business, and provided further that, except
as may otherwise be required under Applicable Laws, Purchaser shall not be
required to, and shall not be required to cause its affiliates to, offer
employment to any such Business Employee who does not present himself or herself
for active employment prior to the sixth month anniversary of the
Closing. The Business Employees who accept such offer of employment
and transfer to Purchaser or its affiliates (such employees, the “Transferred
Employees”) shall commence employment with Purchaser or one of its
affiliates (i) in the case of Transferred Employees actively employed in the
conduct of the Business as of the Closing Date, as of 11:59 p.m., New York City
time, on the Closing Date and (ii) in the case of any Transferred Employee who
is not actively employed in the conduct of the Business as of the Closing Date
due to approved leave of absence, approved leave for short-term disability or
approved vacation, the date that such Business Employee commences active
employment with Purchaser or its affiliates (such time with respect to each
Business Employee, the “Transfer Time”). Purchaser’s or its
affiliates’ offers of employment to each Business Employee shall provide, in
each case for a period of at least twelve months following the Closing Date, (i)
the same level of base salary provided to such employee immediately prior to the
Transfer Time and (ii) other employee benefits (not including equity-based
compensation) substantially similar in the aggregate to those provided by
Purchaser to its similarly situated employees in the same or similar geographic
areas; provided
that notwithstanding anything herein to the contrary, neither Purchaser nor its
affiliates shall be required to provide any Transferred Employee with employee
benefits that are considered by Purchaser to be grandfathered benefits under
benefit plans, policies, programs or agreements sponsored, maintained or entered
into by Purchaser or its affiliates. Purchaser shall, or shall cause
its affiliates to, provide severance benefits to any Transferred Employee whose
employment is terminated within twelve months after the Closing Date in an
amount no less favorable than would have been provided to such Transferred
Employee under Seller’s severance plan covering such employees as in effect
immediately prior to the Transfer Time to the extent such severance plan was
provided by Seller to Purchaser prior to the date of this
Agreement.
(ii) Purchaser shall assume
each employment agreement set forth on Schedule 5.07(a)(ii) of the Seller
Disclosure Letter (each, an “Assumed Employment
Agreement”), provided that the
Business Employee whose employment with Seller is covered by such employment
agreement becomes a Transferred Employee, and provided further that Seller
shall retain responsibility for all
liabilities and obligations arising prior to the Closing under the Assumed
Employment Agreements. Notwithstanding anything herein to the
contrary, in no event shall a Transferred Employee whose employment is covered
under an Assumed Employment Agreement be entitled to severance benefits from
Purchaser and its affiliates that are in excess of the severance benefits
provided under his or her Assumed Employment Agreement.
(iii) Section 5.07(a)(iii)
of the Seller Disclosure Letter sets forth (A) the annual cash bonus and
commission arrangements covering employees of the Business in respect of
Seller’s 2008 fiscal year (collectively, the “Bonus Plans”), (B)
the performance targets under each such Bonus Plan and (C) in the case of the
Rockwood Performance Bonus Plan, the target bonus percentages that each employee
of the Business is eligible to receive under such Bonus
Plan. Following the Closing Date, Purchaser shall pay to the
Transferred Employees such amounts with respect to the Bonus Plans as are
reflected as a current liability on the Closing Statement and taken into account
in the calculation of the Closing Working Capital Amount; provided that
Purchaser shall be required to pay any such amount only to the extent that
Purchaser determines in its sole discretion that the Transferred Employees would
have become entitled to such amount under the applicable Bonus Plan if the
Transferred Employees had remained employed by Seller and its affiliates through
the end of Seller’s 2008 fiscal year. Any amounts payable by
Purchaser pursuant to this Section 5.07(a)(iii) shall be paid at such times, in
such manner and subject to such conditions as such amounts would have been
payable under the applicable Bonus Plan.
(b) With respect to any
welfare benefit plans maintained for the benefit of Transferred Employees or
their eligible dependents following the Transfer Time, Purchaser shall (i) cause
there to be waived any pre-existing condition limitations, exclusions and
actively-at-work requirements with respect to participation and coverage, to the
extent waived or satisfied under the Seller Benefit Plans at the Transfer Time,
and (ii) give effect, in determining any deductible and maximum out-of-pocket
limitations, to claims incurred and amounts paid by, and amounts reimbursed to,
such Transferred Employees or their eligible dependents prior to the Transfer
Time in the plan year in which the Transfer Time occurs for purposes of
satisfying any applicable deductible or maximum out-of-pocket requirements under
any similar welfare benefit plans sponsored or maintained by Purchaser or its
affiliates in which such Transferred Employees or their eligible dependents
participate following the Transfer Time.
(c) Purchaser shall give, or
cause its affiliates to give, each Transferred Employee credit for such
Transferred Employee’s service with Seller and its affiliates prior to the
Closing for purposes of (i) eligibility and vesting (but not for purposes of
benefit accrual, early retirement subsidies or employer contributions under the
Purchaser 401(k) Plan) under any employee benefit plan, program or arrangement
maintained by Purchaser and its affiliates that covers Transferred Employees
after the Closing Date and (ii) entitlements under vacation, sick leave and
severance policies; provided in each case
that service with Seller and its affiliates prior to the Closing shall be
recognized only to the extent that such service would have been recognized under
a similar plan, program or arrangement maintained by Seller and its affiliates
and will not result in a duplication of benefits.
(d) Seller shall be
responsible for providing continuation coverage, within the meaning of the
continuation coverage requirement of Section 601 et seq. of ERISA and Section
4980B of the Code (collectively, “COBRA”), as is
required pursuant to COBRA, in respect of any employee of Seller or any
“qualified beneficiary” (as defined in COBRA) of any such employee who incurs a
“qualifying event” (as defined in COBRA) at or prior to the Transfer
Time. Purchaser shall be responsible for providing such continuation
coverage as is required under COBRA in respect of any Transferred Employee or
any qualified beneficiary of a Transferred Employee, in each case, who incurs a
qualifying event following the Transfer Time.
(e) Seller shall be
responsible for all reimbursement claims (such as medical and dental claims) for
expenses incurred, and for all non-reimbursement claims (such as life insurance
claims) incurred, under any Seller Benefit Plans that are “employee welfare
benefit plans” (within the meaning of Section 3(1) of ERISA) (i) at any time by
any employees of Seller that are not Transferred Employees (and their eligible
dependents and beneficiaries) and (ii) at or prior to the Transfer Time by
Transferred Employees (and their eligible dependents and
beneficiaries). Purchaser shall be responsible for all reimbursement
claims (such as medical and dental claims) for expenses incurred, and for all
non-reimbursement claims (such as life insurance claims) incurred following the
Transfer Time by any Transferred Employees (and their eligible dependents and
beneficiaries) under any welfare benefit plans of Purchaser or its
affiliates. For purposes of this Section 5.07(d), a claim shall be
deemed to be incurred as follows: (1) life, accidental death and dismemberment,
disability and business travel accident insurance benefits, upon the death,
accident or illness giving rise to such benefits and (2) health, dental and
prescription drug benefits (including in respect of any hospital confinement),
upon the provision of the related services, materials or supplies.
(f) (i) Effective
as of the Closing, Purchaser shall have in effect (or shall cause one of its
affiliates to have in effect) a defined contribution plan that includes a
qualified cash or deferred arrangement within the meaning of Section 401(k) of
the Code (the “Purchaser 401(k) Plan”) that will
provide benefits to Transferred Employees participating in the Profit
Sharing/401(k) Plan for Employees of Rockwood Specialties Inc. (the “Seller 401(k)
Plan”). Seller shall cause each Transferred
Employee to become fully vested as of the Closing Date in his or her account
balance under Seller 401(k) Plan. Each Transferred Employee
participating in the Seller 401(k) Plan as of the Transfer Time shall become a
participant in the Purchaser 401(k) Plan immediately following the Transfer
Time. The accounts of Transferred Employees under the Seller 401(k)
Plan shall be distributable according to the terms of the Seller 401(k)
Plan. Purchaser shall cause the Purchaser 401(k) Plan to accept
“direct rollovers” (within the meaning of Section 401(a)(31) of the Code) of
distributions from the Seller 401(k) Plan to Transferred Employees (including
direct rollovers of outstanding loans and any promissory notes or other
documents evidencing such loans), if such rollovers are elected in accordance
with the terms of the Seller 401(k) Plan and Applicable Law by such Transferred
Employees, subject to Purchaser’s satisfaction that (x) the Seller 401(k) Plan
is in compliance with all Applicable Laws, (y) such plan continues to satisfy
the requirements for a qualified plan under Section 401(a) of the Code, and (z)
the trust that forms a part of such plan is exempt from tax under Section 501(a)
of the Code.
(ii) With respect to each
Transferred Employee who is a participant in the Seller 401(k) Plan on the
Closing Date and who continues employment with Purchaser through December 31,
2008, Seller shall pay to Purchaser an amount equal to the product of (x) the
“covered compensation” under the Seller 401(k) Plan earned by such Transferred
Employee from the beginning of the Seller 401(k) Plan’s 2008 plan year through
the Closing Date and (y) the “Applicable Percentage”. The “Applicable
Percentage” shall mean the profit sharing contribution percentage up to a
maximum of 4% of a Transferred Employee’s covered compensation, as determined by
Seller in its sole discretion, that would have been made by Seller with respect
to the Transferred Employee for the Seller 401(k) Plan’s 2008 plan year if the
Transferred Employee had remained employed by Seller and its affiliates through
the end of the Seller 401(k) Plan’s 2008 plan year. The aggregate
amount, if any, payable with respect to Transferred Employees pursuant to this
Section 5.07(f)(ii) (the “Seller
PSP Contribution”) shall be paid to Purchaser as soon as
practicable (but no more than thirty (30) days) after the date that Seller
determines to make profit sharing contributions under the Seller 401(k) Plan
with respect to the 2008 plan year for the benefit of employees of Seller and
its affiliates who do not become Transferred Employees. Each
Transferred Employee’s allocable share of the Seller PSP Contribution shall be
credited by Purchaser to the Transferred Employee under the applicable
tax-qualified retirement plan maintained by Purchaser.
(iii) Seller shall cause
each Transferred Employee to become fully vested as of the Closing Date in his
or her account balance under the Rockwood Specialties Inc. Money Purchase
Pension Plan (the “Seller
MPP”). With respect to each Transferred Employee who is a
participant in the Seller MPP on the Closing Date, Seller shall pay to Purchaser
an amount equal to the product of (x) the “covered compensation” under the
Seller MPP earned by such Transferred Employee from the beginning of the Seller
MPP’s 2008 plan year through the Closing Date and (y) the Seller money purchase
contribution percentage equal to the Seller money purchase contribution
percentage applicable to such Transferred Employee under the Seller MPP on the
Closing Date. The aggregate amount payable with respect to
Transferred Employees pursuant to this Section 5.07(f)(iii) (the “Seller MPP
Contribution”) shall be paid to Purchaser as soon as practicable (but no
more than thirty days) after the Closing Date. Each Transferred
Employee’s allocable share of the Seller MPP Contribution shall be credited by
Purchaser to the Transferred Employee under the applicable tax- qualified
retirement plan maintained by Purchaser.
(iv) For the avoidance of
doubt, neither the Seller MPP Contribution nor the Seller PSP Contribution, nor
any assets or liabilities associated therewith, shall be
reflected in the Closing Statement or be taken into account in the calculation
of the Closing Working Capital Amount.
(g) Seller shall retain, and
shall indemnify and hold harmless Purchaser and its affiliates from and against,
all liabilities pursuant to the Worker Adjustment and Retraining Notification
Act (“WARN”)
and any similar state or local statute in connection with any actions of
Seller. Purchaser shall indemnify and hold harmless Seller and its
affiliates from and against all liabilities pursuant to WARN and all similar
state or local statutes in connection with any action of Purchaser.
(h) Seller shall be
responsible for all (i) severance, separation, change in control, termination,
bonus or other compensation or benefits, (ii) acceleration of the time of
payment or vesting of any compensation or benefits and (iii) benefits the value
of which will be calculated on the basis of the Acquisition or any of the other
transactions contemplated by this Agreement or the Ancillary Agreements, in each
case payable pursuant to any Seller Benefit Plan and whether payable as a result
of the consummation of the Acquisition and the other transactions contemplated
by this Agreement and the Ancillary Agreements or otherwise (any such
entitlement, a “Severance Benefit”);
provided, however, that
Purchaser (and not Seller) shall be responsible for any Severance Benefits to
which a Transferred Employee becomes entitled following the Closing (but only to
the extent such Transferred Employee becomes entitled to such Severance Benefits
as a result of the termination of Transferred Employee’s employment by
Purchaser).
(i) Section 5.07(i) of the
Seller Disclosure Letter sets forth each Assumed Benefit
Plan. Notwithstanding any other provision of this Agreement to the
contrary, from and after the Closing, Seller shall retain all liabilities with
respect to (i) all liabilities and obligations under all Seller Benefit Plans,
except, solely in the case of this clause (i), to the extent that any such
Seller Benefit Plan is an Assumed Benefit Plan that is not an Assumed Employment
Agreement, (ii) all employment and employee-benefits related liabilities in
connection with any current or former employee of Seller who is not a
Transferred Employee and (iii) all employment and employee-benefits related
liabilities in connection with any Transferred Employee that relate to periods
prior to the Closing, except, solely in the case of this clause (iii), to the
extent explicitly assumed by Purchaser pursuant to this Agreement.
(j) Purchaser and Seller
shall take all actions necessary or appropriate so that, effective as of the
Closing, (i) the account balances (whether positive or negative) (the “Transferred Account
Balances”) under the flexible spending plan maintained by Seller (the
“Seller Cafeteria
Plan”) of the Transferred Employees who are participants in the Seller
Cafeteria Plan shall be transferred to one or more comparable plans of Purchaser
(collectively, the “Purchaser Cafeteria
Plan”); (ii) the elections, contribution levels and coverage levels of
the Transferred Employees shall apply under the Purchaser Cafeteria Plan in the
same manner as under the Seller Cafeteria Plan; and (iii) the Transferred
Employees shall be reimbursed from the Purchaser Cafeteria Plan for claims which
have been (A) incurred at any time during the plan year of the Seller Cafeteria
Plan in which the Closing Date occurs and (B) submitted to the Purchaser
Cafeteria Plan from and after the Closing Date, on the same basis and the same
terms and conditions as under the Seller Cafeteria Plan. As soon as
practicable after the Closing Date, and in any event within ten business days
after the amount of the Transferred Account Balances is determined, Seller shall
pay Purchaser the net aggregate amount of the Transferred Account Balances, if
such amount is positive, and Purchaser shall pay Seller the net aggregate amount
of the Transferred Account Balances, if such amount is negative. The
Seller Cafeteria Plan shall be considered an Assumed Benefit Plan for purposes
of this Agreement solely with respect to Transferred Account Balances
transferred in accordance with this Section 5.07(j).
(k) Notwithstanding any
other provision in this Agreement to the contrary, Purchaser shall not assume
any liability or other obligation with respect to any stock option or other
award (each, an “Equity Award”)
granted under any equity compensation or award program, plan or agreement of
Seller or any of its affiliates (each such plan, a “Seller Equity
Plan”). With respect to any Equity Award granted to any
Transferred Employee and outstanding as of the Closing Date under any Seller
Equity Plan, Seller and its affiliates shall take all actions necessary to
ensure that each such Equity Award that is vested as of the Closing Date shall
be permitted to remain outstanding until the earlier of (x) the twelve month
anniversary of the Closing Date and (y) the last day of the Equity Award’s
original term, provided that nothing
in this Section 5.07(k) shall require Seller or any of its affiliates to take
any action that would (x) result in a violation of Applicable Law or in the
imposition of the additional tax under Section 409A of the Code or (y) be
inconsistent with the terms of the applicable Seller Equity Plan.
(l) Except as otherwise may
be required by Applicable Law, effective as of the Closing Date Purchaser shall
recognize, be responsible for and assume all accrued but unpaid vacation time of
the Transferred Employees, but only to the extent such vacation time is
reflected on the Closing Statement.
(m) The provisions of this
Section 5.07 are for the sole benefit of the parties to this Agreement and
nothing herein, expressed or implied, is intended or shall be construed to (i)
constitute an amendment to any of the compensation and benefits plans maintained
for or provided to Transferred Employees prior to or following the Transfer Time
or (ii) confer upon or give to any person, other than the parties to this
Agreement and their respective permitted successors and assigns, any legal or
equitable or other rights or remedies with respect to the matters provided for
in this Section 5.07 under or by reason of any provision of this
Agreement.
SECTION
5.08. Post-Closing
Cooperation. (a) Without limitation of the
agreements under Section 1.04, Purchaser, Parent and Seller shall cooperate with
each other, and shall cause their officers, employees, agents, auditors and
other Representatives to reasonably cooperate with each other, for a period of
180 days after the Closing to ensure the orderly transition of the Business from
Seller to Purchaser and to minimize any disruption to the Business and the other
respective businesses of Parent and Purchaser that might result from the
transactions contemplated hereby. After the Closing, upon reasonable
written notice, Purchaser, Parent and Seller shall furnish or cause to be
furnished to each other and their employees, counsel, auditors and other
Representatives access, during normal business hours, to such information and
assistance relating to the Business (to the extent within the control of such
party) as is reasonably necessary for financial reporting and accounting
matters.
(b) Neither party shall be
required by this Section 5.08 to take any action that would unreasonably
interfere with the conduct of its business or unreasonably disrupt its normal
operations (or, in the case of Purchaser, the Business). Any
information relating to the Business received by Parent, Seller or any of their
affiliates pursuant to this Section 5.08 shall be subject to Section
5.04(b).
SECTION
5.09. Publicity. Prior to the Closing, no
public release or announcement concerning this Agreement, any Ancillary
Agreement, the Acquisition or any of the other transactions contemplated hereby
or thereby shall be issued by any party without the prior consent of the other
parties (which consent shall not be unreasonably withheld, conditioned or
delayed); provided, however, that any
party may make any such release or announcement that is required by Applicable
Law or the rules and regulations of each stock exchange upon which any
securities of such party are listed, in which case the party required to make
such release or announcement shall, to the extent permitted by Applicable Law,
give the other parties prior notice of, and allow the other parties reasonable
time to comment on, such release or announcement in advance of such issuance;
provided, further, that each of
Seller and Purchaser may make internal announcements to their respective
employees that are consistent with the parties’ prior public disclosures
regarding this Agreement, any Ancillary Agreement, the Acquisition or any of the
other transactions contemplated hereby and thereby after reasonable prior notice
to and consultation with the other.
SECTION
5.10. Agreements Not To Compete. Each of
Holdings, Parent and Seller understands that Purchaser shall be entitled to
protect and preserve the going concern value of the Business to the extent
permitted by law and that Purchaser would not have entered into this Agreement
absent the provisions of this Section 5.10. Therefore:
(a) For a period of seven
years from the Closing, each of Holdings, Parent and Seller shall not, and shall
cause each of its subsidiaries not to, directly or indirectly, anywhere in the
world, engage in activities or businesses, or establish any new businesses, that
are substantially in competition with the Business (“Competitive Activities”),
including (i) selling goods or services of the type sold by the Business, except
that if any goods or services were not sold by the Business during the period of
time that it was owned by Seller and are not sold by the Business at the time of
the Closing (collectively, “Permitted Goods and
Services”), each of Holdings, Parent and Seller and their respective
subsidiaries may sell any Permitted Goods and Services notwithstanding anything
contained in this Agreement, (ii) soliciting any customer or prospective
customer of the Business to purchase any goods or services sold by the Business,
other than Permitted Goods and Services, from anyone other than Purchaser and
its affiliates, and (iii) assisting any person in any way to do, or attempt to
do, anything prohibited by clause (i) or (ii) above.
(b) For a period of two
years from the Closing, on behalf of itself or any other person, each of
Holdings, Parent and Seller shall not, and shall cause each of its subsidiaries
not to, directly or indirectly, engage in (i) soliciting or recruiting for
employment, consultancy or other similar arrangement any employees of the
Business as of the date of this Agreement or as of the Closing Date, except for
general advertisements or the use of recruiters so long as employees of the
Business or persons who have worked for the Business are not targeted, or (ii)
hiring any employees of the Business as of the date of this Agreement or as of
the Closing Date, in either case except for any individual identified on Section
5.07(a)(i) of the Seller Disclosure Letter.
(c) Nothing herein shall be
construed to prevent Holdings, Parent or Seller or their affiliates from (x)
owning, directly or indirectly, (A) up to 5% of any class of equity securities
listed on a national securities exchange and issued by a person engaged,
directly or indirectly, in Competitive Activities or (B) up to 5% in value of
any instrument of indebtedness of a person engaged, directly or indirectly, in
Competitive Activities or (y) acquiring and owning any person or business if
less than 5% (or, if such acquisition is consummated on or after the second
anniversary of the Closing Date, if less than 15%) of the aggregate revenues of
such person or business (calculated on a consolidated basis) during its last
complete fiscal year preceding the date of such acquisition is attributed to
Competitive Activities, provided that (i)
Holdings, Parent, Seller or their affiliate, as applicable, shall use its
reasonable best efforts to dispose of the portion of such person or business
engaging in Competitive Activities within twelve months of the consummation by
Holdings, Parent, Seller or their affiliate, as applicable, of the acquisition
of such person or business and (ii) Holdings, Parent, Seller or their affiliate,
as applicable, shall (x) inform Purchaser of the proposed sale of such
competitive portion of such acquired business or, if such portion is proposed to
be sold in a transaction involving other businesses, such transaction (any such
proposed sale, a “Proposed
Divestiture”) in advance of informing or commencing discussions with any
other potential acquiror or initiating any auction or other sale process with
respect to such Proposed Divestiture (it being understood that Holdings, Parent,
Seller or their affiliate, as applicable, may inform or commence discussions
with other potential acquirors or initiate any auction or other sale process at
such time thereafter that it determines) and (y) permit Purchaser to participate
in any auction or other sale process with respect to any such sale on the same
basis as all other potential acquirors. For the avoidance of doubt,
Holdings, Parent, Seller or their affiliate, as applicable, shall be under no
obligation to enter into any such transaction with Purchaser, and shall be free
in their sole discretion to make such Proposed Divestiture to any person they
select.
(d) Notwithstanding any
other provision of this Agreement, it is understood and agreed that the remedy
of indemnity payments pursuant to Article VIII and other remedies at law would
be inadequate in the case of any breach of the covenants contained in this
Section 5.10. It is accordingly agreed that Purchaser shall be
entitled to equitable relief, including an injunction or injunctions to prevent
breaches of this Section 5.10 and to enforce specifically the performance of the
terms and provisions of this Agreement, without proof of actual damages, this
being in addition to any other remedy to which Purchaser is entitled at law or
in equity. Holdings, Parent and Seller further agree not to assert
that such a remedy, including a remedy of specific enforcement, is
unenforceable, invalid, contrary to law or inequitable, nor to assert that a
remedy of monetary damages would provide an adequate remedy for any such
breach.
(e) For the avoidance of
doubt, this Section 5.10 shall not apply to (i) any person (and subsidiaries
thereof, other than Holdings and its subsidiaries) that acquires control of
Holdings after the date of this Agreement or (ii) any portfolio company (other
than Holdings and its subsidiaries) of any direct or indirect stockholder of
Holdings.
SECTION
5.11. Further
Assurances. From time to time, as and when requested by
any party, each party shall execute and deliver, or cause to be executed and
delivered, all such documents and instruments and shall take, or cause to be
taken, all such further or other actions (subject to Section 5.05), as such
other party may reasonably deem necessary or desirable to consummate the
Acquisition and the other transactions contemplated by this Agreement and the
Ancillary Agreements, including, in the case of Parent or Seller, executing and
delivering to Purchaser such assignments, deeds, bills of sale, consents and
other instruments as Purchaser or its counsel may reasonably request as
necessary or desirable for such purpose.
SECTION
5.12. Tax
Matters. (a) (i) Within 90 days of
the determination of the Final Purchase Price, Purchaser shall provide Seller a
proposed allocation (the “Allocation”) prepared
in accordance with Section 1060 of the Code and the Treasury Regulations
promulgated thereunder of the total consideration (including Assumed
Liabilities) among the Acquired Assets. The Allocation shall become
final and binding 20 days after Purchaser provides the Allocation to Seller,
unless Seller objects in good faith. In that case, the parties will
attempt in good faith to agree upon the Allocation. If the parties
cannot agree on the Allocation, each party hereto shall use its own allocation,
as each such party shall deem appropriate.
(ii) Parent, Seller and
Purchaser agree to file all Tax Returns consistent with the final versions of
the allocations and forms described in this Section 5.12.
(b) (i) All
Transfer Taxes applicable to the conveyance and transfer from Seller to
Purchaser of the Acquired Assets and any other transfer or documentary Taxes or
any filing or recording fees applicable to such conveyance and transfer shall be
paid by Seller. Each party shall use commercially reasonable efforts
to avail itself of any available exemptions from any such Taxes or fees, and to
cooperate with the other party in providing any information and documentation
that may be necessary to obtain such exemptions.
(ii) Parent, Seller and
Purchaser shall cooperate in timely making all filings, returns, reports and
forms as may be required in connection with Seller’s payment of Transfer
Taxes. Each party shall execute and deliver all instruments and
certificates reasonably necessary to enable the other to comply with any filing
requirements relating to any such Transfer Taxes.
(c) Seller and Purchaser
shall each retain all Tax Returns, schedules and work papers, records and other
documents in its possession (or in the possession of their affiliates)
relating to Tax matters relevant to the Business for each taxable period first
ending after the Closing and for all prior taxable periods until the later of
(a) the expiration of the statute of limitations of the taxable periods to which
such Tax Returns and other documents relate, without regard to extensions except
to the extent notified by the other party in writing of such extension for the
respective Tax periods, or (b) six years following the due date (without
extension) for such Tax Returns. Seller and Purchaser agree to
provide each other with (x) access to such Tax Returns and other documents on a
reasonable basis and as needed by the party requesting access and (y) such
assistance as may reasonably be requested by either of them in connection with
the preparation of any Tax Return relating to the Business, any audit or other
examination by any Taxing Authority or any Proceeding with respect to Taxes
relating to the Business.
SECTION
5.13. Other
Transaction Agreements. (a) On the Closing
Date, each of Parent, Seller and Purchaser shall execute and deliver an
agreement substantially in the form of Exhibit A hereto (such agreement, the
“Transition Services
Agreement”).
(b) On the Closing Date,
Seller and Purchaser shall execute and deliver a temporary site license
agreement substantially in the form of Exhibit B hereto (such agreement, the
“Site
License”).
SECTION
5.14. License
to Seller Name. Without limiting any of the agreements set
forth in Section 1.04(c), Parent and Seller hereby grant Purchaser a fully
paid-up, royalty-free license, effective upon the Closing and for a term
expiring on the date that is two years after the Closing Date, to (a) use the
name “Advantis” (or any other name associated with the products of the Business
and not constituting an Acquired Asset, other than “Rockwood” and names
incorporating “Rockwood” to the extent not used on any product labels of the
Business) in labeling any products of the Business and in internal documents and
records relating to products of the Business, including material safety data
sheets; (b) refer to “Advantis” (or any other name associated with the products
of the Business and not constituting an Acquired Asset, other than “Rockwood”
and names incorporating “Rockwood” to the extent not used on any product labels
of the Business) in describing the origin of the products of the Business in
oral communications to customers of the Business and (c) use the name “Advantis”
(or any other name associated with the products of the Business and not
constituting an Acquired Asset, other than “Rockwood” and names incorporating
“Rockwood” to the extent not used on any product labels of the Business) in oral
and written communications to customers of the Business regarding the
Acquisition and the other transactions contemplated by this Agreement and the
Ancillary Agreements. Purchaser shall indemnify Parent, Seller and
their respective affiliates and Representatives against, and hold them harmless
from, any Losses arising from, in connection with, as a result of or otherwise
with respect to the arrangements described in this Section 5.14, other than any
Losses with respect to which Seller or Parent has expressly provided an
indemnity to Purchaser hereunder.
SECTION
5.15. Customer Returns. Purchaser shall be
responsible for accepting all returns and exchanges of products sold or
manufactured by the Business prior to the Closing, in accordance with
Purchaser’s policies in respect of returns and exchanges
applicable to products manufactured and sold by the Business as conducted by
Purchaser following the Closing; provided, however, that the
aggregate amount of all liabilities of Purchaser pursuant to this Section 5.15
shall not exceed $15,000; provided, further, that
Purchaser shall not be required to accept any return or exchange to the extent
such acceptance would constitute or result in a violation of any applicable
Environmental Law, including the Resource Conservation and Recovery Act of 1976,
as amended.
SECTION
5.16. Parent
and Affiliate Guarantees. Purchaser shall reasonably
cooperate in good faith with Parent and its affiliates to facilitate the release
of Parent and its affiliates from all guarantees or other similar assurances
provided by Parent, Seller or any of their affiliates to any person (other than
Parent, Seller, Purchaser or any of their affiliates) in respect of any of the
Assumed Liabilities, in each case as of the Closing or as promptly as
practicable thereafter. In the case of the Business’ Ontario,
California lease, if not theretofore released, Purchaser shall use its
reasonable best efforts to obtain the release of Parent or its applicable
affiliate upon the first renewal of such lease following Closing.
Conditions
Precedent
SECTION
6.01. Conditions to Each Party’s
Obligation. The obligation of Purchaser to purchase and
pay for the Acquired Assets and the obligation of Seller to sell the Acquired
Assets to Purchaser is subject to the satisfaction or waiver on or prior to the
Closing of the following conditions:
(a) HSR
Act. Any waiting period (and any extension thereof) applicable
to the Acquisition under the HSR Act shall have been terminated or shall have
expired.
(b) No Injunctions or
Restraints. No Applicable Law, Judgment or other legal
restraint or prohibition, whether preliminary, temporary or permanent (each, a
“Restraint”),
shall have been issued by a Governmental Entity and shall remain in effect that
restrains, enjoins or otherwise prohibits the consummation of the transactions
contemplated by this Agreement or the Ancillary Agreements.
SECTION
6.02. Conditions to Obligation of
Purchaser. The obligation of Purchaser to purchase and pay
for the Acquired Assets is subject to the satisfaction (or waiver by Purchaser)
on or prior to the Closing Date of the following conditions:
(a) Representations and
Warranties.
(i) The representations and warranties
of Parent and Seller in this Agreement that are qualified as to materiality or
Seller Material Adverse Effect shall be true and correct, and those not so
qualified shall be true and correct in all material respects, as of the date
hereof, except to the extent such representations and warranties expressly
relate to an earlier date (in which case, as of such earlier date);
(ii) the representations and warranties
of Parent and Seller set forth in Sections 3.02, 3.05, 3.06, 3.07(b) and 3.14
that are qualified as to materiality shall be true and correct, and those not so
qualified shall be true and correct in all material respects, as of the Closing
Date as though made on the Closing Date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case, as of such earlier date); and
(iii) the representations and
warranties of Parent and Seller in this Agreement and in the Ancillary
Agreements (other than the representations and warranties set forth in Sections
3.02, 3.05, 3.06, 3.07(b) and 3.14) shall be true and correct as of the Closing
Date as though made on the Closing Date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case, as of such earlier date), and except to the extent that the facts or
matters as to which such representations and warranties are not so true and
correct (without giving effect to any qualifier as to materiality or Seller
Material Adverse Effect set forth therein) have not had and could not reasonably
be expected to have, individually or in the aggregate, a Seller Material Adverse
Effect.
Purchaser
shall have received a certificate signed by an authorized officer of Parent and
an authorized officer of Seller to the effect of clauses (i) through (iii) of
this Section 6.02(a).
(b) Performance of Obligations
of Parent and Seller. Each of Parent and Seller shall have
performed or complied in all material respects with all obligations and
covenants required by this Agreement to be performed or complied with by Parent
or Seller, as applicable, by the time of the Closing, and Purchaser shall have
received a certificate signed by an authorized officer of Parent and an
authorized officer of Seller to such effect.
(c) Absence of
Proceedings. There shall not be pending any Proceeding
commenced by any Governmental Entity nor any Proceeding threatened by a
Governmental Entity (i) challenging or seeking to restrain, limit or prohibit
the Acquisition or any other transaction contemplated by this Agreement or the
Ancillary Agreements or seeking to obtain from Purchaser or any of its
subsidiaries in connection with the Acquisition any material damages, (ii)
seeking to prohibit or limit the ownership or operation by Purchaser or any of
its subsidiaries of any material portion of the Business, or to compel Purchaser
or any of its subsidiaries to dispose of or hold separate any material portion
of the Business or any of the other businesses, assets of properties of
Purchaser and its subsidiaries, (iii) seeking to impose limitations on the
ability of Purchaser to acquire or hold, or exercise full rights of ownership
of, the Acquired Assets or any of the other businesses, assets of properties of
Purchaser and its subsidiaries or (iv) seeking to prohibit Purchaser or any of
its subsidiaries from effectively controlling in any material respect the
Business or any of the other businesses, assets of properties of Purchaser and
its subsidiaries in each case as a result of the Acquisition. No
Restraint having any of the effects described in clauses (i) through (iv) of the
immediately preceding sentence shall be in effect.
(d) Third Party
Matters. The assignment listed on Section 6.02(d) of the
Seller Disclosure Letter shall be valid and shall have become effective, and the
written consent listed on Section 6.02(d) of the Seller Disclosure Letter shall
have been received by Purchaser.
(e) Non-Foreign
Affidavit. Seller shall have delivered to Purchaser a non-
foreign affidavit dated as of the Closing Date, sworn under penalty of perjury
and conforming to the requirements of Treas. Reg. § 1.1445-2(b)(2), certifying
that Seller is not a “foreign person” as defined in Section 1445 of the
Code.
SECTION
6.03. Conditions to Obligation of Seller. The
obligation of Seller to sell, assign, convey, and deliver the Acquired Assets is
subject to the satisfaction (or waiver by Seller) on or prior to the Closing
Date of the following conditions:
(a) Representations and
Warranties.
(i) The representations and warranties
of Purchaser in this Agreement that are qualified as to materiality or Purchaser
Material Adverse Effect shall be true and correct, and those not so qualified
shall be true and correct in all material respects, as of the date hereof,
except to the extent such representations and warranties expressly relate to an
earlier date (in which case, as of such earlier date);
(ii) the representations and warranties
of Purchaser set forth in Section 4.02 shall be true and correct in all material
respects as of the Closing Date as though made on the Closing Date;
and
(iii) the representations and
warranties of Purchaser in this Agreement and in the Ancillary Agreements (other
than the representations and warranties set forth in Section 4.02) shall be true
and correct as of the Closing Date as though made on the Closing Date, except to
the extent such representations and warranties expressly relate to an earlier
date (in which case, as of such earlier date), and except to the extent that the
facts or matters as to which such representations and warranties are not so true
and correct (without giving effect to any qualifier as to materiality or
Purchaser Material Adverse Effect set forth therein) have not had and could not
reasonably be expected to have, individually or in the aggregate, a Purchaser
Material Adverse Effect.
Seller
shall have received a certificate signed by an authorized officer of Purchaser
to the effect of clauses (i) through (iii) of this Section 6.03(a).
(b) Performance of Obligations
of Purchaser. Purchaser shall have performed or complied in
all material respects with all obligations and covenants required by this
Agreement to be performed or complied with by Purchaser by the time of the
Closing, and Seller shall have received a certificate signed by an authorized
officer of Purchaser to such effect.
(c) Absence of
Proceedings. There shall not be pending any Proceeding
commenced by any Governmental Entity nor any Proceeding threatened by a
Governmental Entity in respect of the Acquisition that claims as a potential
remedy, in the event the Acquisition is consummated, any material monetary
damages from Parent or any of its subsidiaries.
SECTION
6.04. Frustration of Closing Conditions. None
of Purchaser, Parent or Seller may rely on the failure of any condition set
forth in this Article VI to be satisfied if such failure was caused by such
party’s failure to act in good faith or to take the actions required by Section
5.05 to be taken in order to cause the Closing to occur.
Termination,
Amendment and Waiver
SECTION
7.01. Termination. (a) Notwithstanding
anything to the contrary in this Agreement, this Agreement may be terminated and
the Acquisition and the other transactions contemplated by this Agreement
abandoned at any time prior to the Closing:
(i) by mutual written consent of
Parent, Seller and Purchaser;
(ii) by either Purchaser, on one hand,
or Seller or Parent, on the other hand, if:
(A) the Closing shall not have occurred
on or before December 4, 2008 (the “Outside Date”); provided, however, that if as
of such date the condition set forth in Section 6.01(a) shall not have been
satisfied or waived but all other conditions to the parties’ obligations to
consummate the Acquisition shall have been satisfied or waived or shall be
reasonably capable of being satisfied, then the Outside Date shall automatically
be extended to March 4, 2009; provided, further, that the
right to terminate this Agreement pursuant to this Section 7.01(a)(ii)(A) shall
not be available to any party if the failure of the Closing to occur on or
before the Outside Date is due to a breach by such party (or, in the case of
Parent or Seller, due to a breach by either of them) of its obligations under
this Agreement or the failure of any of such party’s representations and
warranties (or, in the case of Parent, the representations and warranties of
Seller) in this Agreement to be true; or
(B) if any Restraint having the effects
set forth in Section 6.01(b) shall be in effect and shall have become final and
nonappealable;
(iii) by Parent or Seller, if Purchaser
breaches or fails to perform any of its covenants or agreements contained in
this Agreement, or if any of the representations or warranties of Purchaser
contained herein fails to be true and correct, which breach or failure (A) would
give rise to the failure of a condition set forth in Section 6.03(a) or Section
6.03(b) and (B) is not reasonable capable of being cured by Purchaser within 30
days after Purchaser’s receipt of written notice thereof from Parent or Seller
(provided that
neither Seller nor Parent is then in breach of any covenant or agreement
contained in this Agreement and no representation or warranty of Seller or
Parent contained herein then fails to be true and correct such that the
conditions set forth in Section 6.02(a) or Section 6.02(b) could not then be
satisfied);
(iv) by Purchaser if either Parent or
Seller breaches or fails to perform any of its covenants or agreements contained
in this Agreement, or if any of the representations or warranties of Parent or
Seller contained herein fails to be true and correct, which breach or failure
(A) would give rise to the failure of a condition set forth in Section 6.02(a)
or Section 6.02(b) and (B) is not reasonable capable of being cured by Parent or
Seller, as the case may be, within 30 days after Purchaser’s receipt of written
notice thereof from Purchaser (provided that
Purchaser is not then in breach of any covenant or agreement contained in this
Agreement and no representation or warranty of Purchaser contained herein then
fails to be true and correct such that the conditions set forth in Section
6.03(a) or Section 6.03(b) could not then be satisfied); or
(v) by Purchaser if any Restraint
having any of the effects set forth in Section 6.02(c) shall be in effect and
shall have become final and nonappealable.
(b) In the event of
termination by Parent and Seller or Purchaser pursuant to this Section 7.01,
written notice thereof shall forthwith be given to the other and the
transactions contemplated by this Agreement shall be terminated, without further
action by any party. If the transactions contemplated by this
Agreement are terminated as provided herein:
(i) Purchaser shall return all
documents and other material received from Parent or Seller relating to the
transactions contemplated hereby, whether so obtained before or after the
execution hereof, to Seller; and
(ii) all confidential information
received by Purchaser with respect to the Business shall be treated in
accordance with the Confidentiality Agreement, which shall remain in full force
and effect notwithstanding the termination of this Agreement.
SECTION
7.02. Effect
of Termination. If this Agreement is terminated and the
transactions contemplated hereby are abandoned as described in Section 7.01,
this Agreement shall become null and void and of no further force and effect,
except for the provisions of (i) Section 5.04 (relating to confidentiality),
(ii) Section 5.06 (relating to certain expenses), (iii) Sections 3.24 and 4.06
(relating to finder’s fees and broker’s fees), (iv)
Section 7.01(b) and this Section 7.02 and (v) Section 5.09 (relating to
publicity). Nothing in this Section 7.02 shall be deemed to release
any party from any liability for any willful or intentional breach by such party
of the terms and provisions of this Agreement prior to termination of this
Agreement.
SECTION
7.03. Amendments and Waivers. This Agreement
may not be amended except by an instrument in writing signed on behalf of each
of the parties hereto. By an instrument in writing Purchaser, on the
one hand, or Parent and Seller, on the other hand, may waive compliance by the
other party with any term or provision of this Agreement that such other party
was or is obligated to comply with or perform.
Indemnification
SECTION
8.01. Indemnification by Parent and
Seller. (a) From and after the Closing, Parent
and Seller, jointly and severally, shall indemnify Purchaser and its affiliates
and each of their respective Representatives and stockholders against, and hold
them harmless from, any Losses arising from, in connection with or otherwise
with respect to:
(i) any inaccuracy in, or breach of,
any representation or warranty of Parent or Seller contained in this Agreement
or any certificate delivered in connection herewith;
(ii) any failure by Parent or Seller to
perform any covenant, agreement, obligation or undertaking contained in this
Agreement or in any Ancillary Agreement;
(iii) any Excluded Liability;
and
(iv) any and all actions, suits,
proceedings, demands, assessments, judgments, damages, awards, costs and
expenses (including reasonable third-party fees and expenses) incident to any of
the foregoing or incurred in connection with the enforcement of the rights of
any such indemnified party with respect to the foregoing.
(b) Notwithstanding any
other provision of this Article VIII, Parent and Seller shall not have any
liability:
(i) under clause (i) of Section 8.01(a)
(and, to the extent relating thereto, clause (iv) of Section 8.01(a)) for any
Loss unless (A) the amount of such Loss exceeds $15,000, in which case the
entire amount of such Loss shall be included for purposes of computing the
Losses that are indemnifiable hereunder and/or applicable against the Deductible
Amount (defined below), and (B) the aggregate amount of such Losses for which
indemnification would otherwise be available exceeds $500,000 (the “Deductible Amount”),
in which event recovery by the indemnified parties shall be limited to that
portion of such Losses that exceed the Deductible
Amount; provided, however, that the
limitations set forth in this clause (i) shall not apply to any claim for
indemnification to the extent arising out of an inaccuracy or breach of any
representation or warranty contained in Sections 3.01, 3.02, 3.03, 3.05, 3.14 or
3.24 or the third sentence of Section 3.18 (to the extent such sentence relates
to actions described in Sections 5.01(vii), (xiii) or (xiv)) (the “Seller Specified
Representations”), to any representation or warranty contained in Section
3.15 or to any Loss incurred due to fraud against Purchaser by or on behalf of
Parent or Seller;
(ii) under clause (iii) of Section
8.01(a) (and to the extent relating thereto, clause (iv) of Section 8.01(a)) for
any Losses in respect of any On-Site Environmental Liabilities unless the amount
of all such Losses in the aggregate exceeds $15,000;
(iii) under clause (i) of Section
8.01(a) (and, to the extent relating thereto, clause (iv) of Section 8.01(a)) in
excess of $25,000,000; provided, however, that the
limitation set forth in this clause (iii) shall not apply to any claim for
indemnification to the extent arising out of an inaccuracy or breach of any
Seller Specified Representation or to any Loss incurred due to fraud against
Purchaser by or on behalf of Parent or Seller; or
(iv) under clause (i) of Section
8.01(a) (and, to the extent relating thereto, clause (iv) of Section 8.01(a)) in
aggregate in excess of the Final Purchase Price.
SECTION
8.02. Indemnification by Purchaser. From and
after the Closing, Purchaser shall indemnify Parent, Seller, their affiliates
and each of their respective Representatives and stockholders against, and
agrees to hold them harmless from, any Losses, for or on account of or arising
from or in connection with or otherwise with respect to:
(a) inaccuracy in, or breach
of, any representation or warranty of Purchaser contained in this Agreement or
any certificate delivered in connection herewith;
(b) any failure by Purchaser
to perform any covenant, agreement, obligation or undertaking contained in this
Agreement or in any Ancillary Agreement;
(c) any Assumed Liability;
and
(d) any and all actions,
suits, proceedings, demands, assessments, judgments, damages, awards, costs and
expenses (including reasonable third-party fees and expenses) incident to any of
the foregoing or incurred in connection with the enforcement of the rights of
any such indemnified party with respect to the foregoing.
SECTION
8.03. Termination of Indemnification. Except
with respect to any fraud by or on behalf of any party against the other party,
such party’s obligations to
indemnify
and hold harmless any other party pursuant to (i) Section 8.01(a)(i) (other than
with respect to the Seller Specified Representations and the representations in
Section 3.15) and, to the extent relating thereto, Section 8.01(a)(iv), shall
terminate on the date that is two years after the Closing Date and (ii) pursuant
to Section 8.01(a)(iii) and, to the extent relating thereto, Section
8.01(a)(iv), in respect of any On-Site Environmental Liabilities related to the
Alpharetta Site, shall terminate on the date that is ten years after the Closing
Date; provided,
however, that
such obligations to indemnify and hold harmless shall not terminate with respect
to any item as to which the applicable indemnified party shall have, before the
expiration of such period, previously made a claim by delivering a notice of
such claim pursuant to Section 8.04 to the applicable indemnifying
party. Any other obligation to indemnify and hold harmless any party
shall terminate upon the expiration of the relevant statute of limitations,
taking into account extensions thereof; provided, however, that such
obligations shall not terminate with respect to any item as to which the
applicable indemnified party has, as of the expiration of the relevant period,
taking into account extensions thereof, a pending suit against the applicable
indemnifying party.
SECTION
8.04. Procedures. (a) Third Party
Claims. If a claim by a third party is made against a party
hereto or any of its affiliates (the “indemnified party”)
in respect of, arising out of or involving a matter for which the indemnified
party is entitled to be indemnified by another party hereto (the “indemnifying party”)
pursuant to this Article VIII (a “Third Party Claim”),
such indemnified party must notify the indemnifying party in writing of the
Third Party Claim promptly following receipt by such indemnified party of
written notice of the Third Party Claim; provided, however, that failure
to give such notification shall not affect the indemnification provided
hereunder except to the extent (and only to the extent) the indemnifying party
shall have been actually and materially prejudiced as a result of such
failure. Thereafter, the indemnified party shall deliver to the
indemnifying party, promptly following the indemnified party’s receipt thereof,
copies of all notices and documents (including court papers) received by the
indemnified party relating to the Third Party Claim.
(b) Assumption. If
a Third Party Claim is made against an indemnified party, the indemnifying party
shall be entitled to participate in the defense thereof and, if it so chooses,
to assume the defense and, subject to the seventh sentence of this Section
8.04(b), settlement thereof with counsel selected by the indemnifying party and
shall have the right, but not the obligation, to assert any cross-claim or
counterclaim in connection therewith; provided, however, that such
counsel is not reasonably objected to by the indemnified
party. Should the indemnifying party so elect to assume the defense
of a Third Party Claim, the indemnifying party shall not be liable to the
indemnified party for any legal expenses subsequently incurred by the
indemnified party in connection with the defense thereof. If the
indemnifying party assumes such defense, the indemnified party shall have the
right to participate in the defense thereof and to employ counsel, at its own
expense, separate from the counsel employed by the indemnifying party, it being
understood that the indemnifying party shall control such
defense. The indemnifying party shall be liable for the reasonable
fees and expenses of counsel employed by the indemnified party for any period
during which the indemnifying party has not assumed the defense
thereof. If the indemnifying party chooses to defend or prosecute a
Third Party Claim, all the indemnified parties shall cooperate in the defense or
prosecution thereof. Such cooperation shall include the retention and
(upon the indemnifying party’s request) the provision to the indemnifying party
of records and information that are reasonably relevant to such Third Party
Claim, and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided
hereunder. If the indemnifying party assumes the defense of a Third
Party Claim, (A) the indemnified party shall agree to any settlement, compromise
or discharge of a Third Party Claim that the indemnifying party may recommend
and that by its terms obligates the indemnifying party to pay the full amount of
the liability in connection with such Third Party Claim, which releases the
indemnified party completely in connection with such Third Party Claim and that
would not otherwise adversely affect the indemnified party, and (B) the
indemnified party shall not enter into any settlement, compromise or discharge
of a Third Party Claim without the prior written consent of the indemnifying
party (which shall not be unreasonably withheld, conditioned or
delayed). Notwithstanding the foregoing, the indemnifying party shall
not be entitled to assume the defense of any Third Party Claim (and shall be
liable for the reasonable fees and expenses of counsel incurred by the
indemnified party in defending such Third Party Claim) if (i) the Third Party
Claim seeks an order, injunction or other equitable relief or relief for other
than money damages against the indemnified party that the indemnified party
reasonably determines, after conferring with its outside counsel, cannot be
separated from any related claim for money damages or (ii) the indemnified party
reasonably believes itself to be exposed, in the event that such Third Party
Claim is not resolved in the indemnified party or indemnifying party’s favor, to
Losses in excess of amounts reasonably expected to be received from the
indemnifying party. In the case of any Third Party Claim referred to
in clause (i) of the immediately preceding sentence, if such equitable relief or
other relief portion of such Third Party Claim can be so separated from that for
money damages, the indemnifying party shall be entitled to assume the defense of
the portion of such Third Party Claim relating to money damages.
(c) Other
Claims. In the event any indemnified party should have a claim
against any indemnifying party under Section 8.01 or 8.02 that does not involve
a Third Party Claim being asserted against or sought to be collected from such
indemnified party, the indemnified party shall deliver notice of such claim with
reasonable promptness to the indemnifying party. Subject to Sections
8.03 and 8.05, the failure by any indemnified party so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to such indemnified party under Section 8.01 or 8.02, except to
the extent that the indemnifying party demonstrates that it has been actually
and materially prejudiced by such failure. If the indemnifying party
does not notify the indemnified party within thirty days following its receipt
of such notice that the indemnifying party disputes its liability to the
indemnified party under Section 8.01 or 8.02, such claim specified by the
indemnified party in such notice shall be conclusively deemed a liability of the
indemnifying party under Section 8.01 or 8.02 and the indemnifying party shall
pay the amount of such liability to the indemnified party on demand or, in the
case of any notice in which the amount of the claim (or any portion thereof) is
estimated, on such later date when the amount of such claim (or such portion
thereof) becomes finally determined.
SECTION
8.05. Survival of Representations and
Covenants. (a) The representations, warranties,
covenants and agreements contained in this Agreement, the Ancillary Agreements
and in any document delivered in connection herewith shall survive the Closing
and remain in full force and effect until the indemnification obligation
therefor terminates in accordance with Section 8.03.
(b) The obligations of
Parent and Seller under Section 8.01 and the obligations of Purchaser under
Section 8.02 shall not be affected by any knowledge by any indemnified party at
or prior to the Closing of any breach of representation or warranty, whether
such knowledge came from Parent, Seller, Purchaser or any other person, or any
waiver of Section 6.02 or 6.03.
SECTION
8.06. Tax
Treatment of Indemnification Payments. For all Tax
purposes, Seller and Purchaser agree to treat, to the extent permitted by
Applicable Law, any indemnity payment under this Agreement as an adjustment to
the Purchase Price.
SECTION
8.07. Exclusive Remedy. Except with respect to
fraud by or on behalf of a party hereto against the other party, the parties
acknowledge and agree that the foregoing indemnification provisions in this
Article VIII, and the provisions of Sections 5.10(d) and 9.11, shall be the
exclusive remedy of the parties following the Closing with respect to any
inaccuracy in, or any breach of, any representation or warranty or any breach of
any covenant or agreement of the parties under this Agreement. In
furtherance of the foregoing, except in the case of fraud against Purchaser,
Purchaser, on behalf of itself and its affiliates, waives, to the fullest extent
permitted by Applicable Law, any other right of collection or recovery against
Parent and its affiliates in respect of On-Site Environmental Liabilities in
connection with the transactions contemplated by this Agreement, including
rights of contribution and indemnity arising under Environmental
Law.
SECTION
8.08. Losses Net of
Insurance,
etc. The amount of any Loss for which indemnification is
provided under this Article VIII shall be net of any amounts actually recovered
by the indemnified party under insurance policies with respect to such Loss (it
being understood that no indemnified party shall be required to pursue any such
insurance coverage) and shall be (i) increased to take account of the aggregate
Tax cost(s) incurred by the indemnified party arising from the receipt of
indemnity payments hereunder (grossed up for such increase) and (ii) reduced to
take account of the aggregate Tax benefit(s) realized by the indemnified party
arising from the incurrence or payment of any such Loss.
SECTION
8.09. Waiver
of Exemplary and Punitive Damages. THE PARTIES EXPRESSLY
WAIVE AND FOREGO ANY RIGHT TO RECOVER PUNITIVE OR EXEMPLARY DAMAGES IN ANY
ACTION ARISING OUT OF OR RELATED TO A BREACH OF THIS AGREEMENT OR PURSUANT TO
ANY INDEMNIFICATION CLAIM, EXCEPT TO THE EXTENT PAYABLE TO A THIRD
PARTY.
General
Provisions
SECTION
9.01. Assignment. This Agreement and the
rights and obligations hereunder shall not be assignable or transferable by
Purchaser, Parent or Seller (including by operation of law in connection with a
merger or consolidation of Purchaser, Parent or Seller) without the prior
written consent of the other parties hereto. Notwithstanding the foregoing, (a)
Purchaser may assign its right to purchase the Acquired Assets or any portion
thereof hereunder to an affiliate of Purchaser without the prior written consent
of Parent or Seller, (b) Purchaser may assign its rights hereunder by way of
security and such secured party may assign such rights by way of exercise of
remedies and (c) Purchaser may assign its rights to indemnity, in whole or in
part, to any purchaser of all or any part of the Business or the Acquired
Assets, but only to the extent such rights relate to the portion of the Business
or Acquired Assets so sold; provided, however, that no
assignment shall limit or affect the assignor’s obligations
hereunder. Any attempted assignment in violation of this Section 9.01
shall be void.
SECTION
9.02. No
Third-Party Beneficiaries. Except as provided in Article
VIII, this Agreement is for the sole benefit of the parties hereto and their
permitted assigns and nothing herein expressed or implied shall give or be
construed to give to any person, other than the parties hereto and such assigns,
any legal or equitable rights hereunder. Nothing in this Agreement
shall constitute an amendment or supplement to any other Contract or Seller
Benefit Plan that is enforceable by any person other than the parties hereto or
their permitted assigns.
SECTION
9.03. Notices. All notices or other
communications required or permitted to be given hereunder shall be in writing
and shall be delivered by hand or sent by facsimile or sent, postage prepaid, by
registered, certified or express mail or overnight courier service and shall be
deemed given when received, as follows:
(i) if
to Purchaser,
Arch
Chemicals, Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Tel.:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Attention:
Corporate Secretary
with a
copy to:
Cravath,
Swaine & ▇▇▇▇▇ LLP
Worldwide
Plaza
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Tel.:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq.
(ii) if
to Parent or Seller,
Rockwood
Specialties Inc.
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Tel.:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Attention:
General Counsel
with a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
SECTION
9.04. Interpretation; Exhibits and Schedules;
Certain Definitions. (a) When a
reference is made in this Agreement to an Article or Section, such reference
shall be to an Article or Section of this Agreement unless otherwise
indicated. The table of contents, index of defined terms and headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Any
capitalized term used in any Exhibit but not otherwise defined therein shall
have the meaning assigned to such term in this Agreement. Whenever
the words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”. The
words “hereof’, “hereto”, “hereby”, “herein” and “hereunder” and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. The term
“or” is not exclusive. The word “extent” in the phrase “to the
extent” shall mean the degree to which a subject or other thing extends, and
such phrase shall not mean simply “if’. The definitions contained in
this Agreement are applicable to the singular as well as the plural forms of
such terms. Any agreement, instrument or Law defined or referred to
herein means such agreement, instrument or Law as from time to time amended,
modified or supplemented, unless otherwise specifically
indicated. References to a person are also to its permitted
successors and assigns. Unless otherwise specifically indicated, all
references to “dollars” and “$” will be deemed references to the lawful money of
the United States of America.
(b) For all purposes
hereof:
“Acquisition Proposal”
means any proposal or offer (whether or not in writing) by any person (other
than Purchaser) with respect to any (i) merger, consolidation, share exchange,
other business combination or similar transaction involving Seller, (ii) sale,
lease, contribution or other disposition, directly or indirectly (including by
way of merger, consolidation, share exchange, other business combination,
partnership, joint venture, sale of capital stock of or other equity interests
in a subsidiary of Seller or otherwise) of any of the assets or businesses
representing 10% or more of the revenues, net income, cash flow, EBITDA or
assets of the Business, (iii) issuance, sale or other disposition, directly or
indirectly, to any person (or the stockholders of any person) or group of
securities (or options, rights or warrants to purchase, or securities
convertible into or exchangeable for, such securities) representing 10% or more
of the voting power of Seller, (iv) transaction in which any person (or the
stockholders of any person) shall acquire, directly or indirectly, beneficial
ownership, or the right to acquire beneficial ownership, or formation of any
group which beneficially owns or has the right to acquire beneficial ownership,
of 10% or more of the common stock of Seller or (v) any combination of the
foregoing (in each case, other than the Acquisition). For the
avoidance of doubt, the term “Acquisition Proposal” shall not include any
transaction involving the sale of equity or other securities of, or rights to
acquire equity or other securities of, Parent or Rockwood Specialties Group,
Inc. or any person controlling Parent or Rockwood Specialties Group, Inc., a
change in control of Rockwood Specialties Group, Inc. or any person controlling
Parent or Rockwood Specialties Group, Inc., or the sale of substantially all of
the assets and properties of Parent or Rockwood Specialties Group, Inc. or any
person controlling Parent or Rockwood Specialties Group, Inc., provided that, in
each case, such transaction does not impair in any respect Purchaser’s rights
hereunder.
“affiliate” of any
person means another person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
such first person.
“Alpharetta Site”
means ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇.
“Code” means the
Internal Revenue Code of 1986, as amended from time to time.
“Contract” means any
loan or credit agreement, bond, debenture, note, mortgage, indenture, lease,
contract, obligation, commitment, arrangement, understanding, instrument,
license or other agreement, whether oral or written, including all amendments
thereto.
“GAAP” means United
States generally accepted accounting principles.
“Guarantee” of or by
any person means any obligation, contingent or otherwise, of such person
guaranteeing any Indebtedness of any other person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation
of such person, direct or indirect, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Indebtedness, (ii) to purchase property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the term
Guarantee shall not include endorsements for collection or deposit, in each case
in the ordinary course of business.
“Indebtedness” of any
person means (i) all obligations of such person for borrowed money, (ii) all
obligations of such person evidenced by bonds, debentures, notes or similar
instruments, (iii) all obligations of such person upon which interest charges
are customarily paid by such person, other than trade credit incurred in the
ordinary course of business, (iv) all obligations of such person under
conditional sale or other title retention agreements relating to property or
assets purchased by such person, (v) all obligations of such person issued or
assumed as the deferred purchase price of property or services (other than
ordinary course trade payables to the extent paid in accordance with their
terms), (vi) all indebtedness of others secured by (or for which the holder of
such indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (vii) all capital lease
obligations of such person, (viii) the notional amount of all obligations of
such person in respect of interest rate protection agreements, foreign currency
exchange agreements or other interest or exchange rate hedging arrangements and
(ix) all obligations of such person as an account party in respect of letters of
credit and bankers’ acceptances. The Indebtedness of any person shall
include the Indebtedness of any partnership in which such person is a general
partner.
“knowledge” means,
with respect to Parent or Seller and with respect to any matter in question,
actual knowledge of any of the individuals listed on Section 9.05(b) of the
Seller Disclosure Letter after due inquiry of such other employee or employees
of Parent or any of its affiliates with primary direct responsibility for such
matter.
“Losses” of any person
means any and all demands, claims, suits, actions, causes of action,
proceedings, assessments, losses, damages, liabilities, Taxes, costs and
expenses incurred by such person, including interest, penalties and reasonable
attorneys’ fees, third-party expert and consultant fees and expenses, fines,
Judgments, awards and financial responsibility for investigation, removal and
clean-up costs and natural resource damages.
“On-Site Environmental
Liabilities” shall mean any Loss arising out of the presence of Hazardous
Materials in surface water, groundwater, soils, land surface or subsurface
strata at the Business Property to the extent existing or occurring, or arising
from a condition or event existing or occurring, prior to the Closing; provided however,
that
On-Site Environmental Liabilities shall not include any Loss arising out of
human exposure to Hazardous Materials at the Business Property.
“person” means any
individual, firm, company, corporation, partnership, limited liability company,
trust, joint venture, business association, Governmental Entity or other
entity.
“Post-Closing Tax
Period” means any taxable period (or portion thereof) beginning after the
Closing Date.
“Pre-Closing Tax
Period” means any taxable period (or portion thereof) ending on or prior
to the Closing Date.
“Proceeding” means any
suit, claim, action, arbitration or other proceeding.
“Purchaser Material Adverse
Effect” means any state of facts, change, effect, condition, development,
event or occurrence that materially and adversely affects (i) the ability of
Purchaser to perform its obligations under this Agreement and the Ancillary
Agreements or (ii) the ability of Purchaser to consummate the Acquisition and
the other transactions contemplated by this Agreement and the Ancillary
Agreements.
“Representatives”
means, with respect to any person, such person’s directors, officers and
employees and its and their respective investment bankers, accountants,
attorneys, consultants and other advisors, agents and representatives, in each
case acting in such capacity.
“Seller Material Adverse
Effect” means any state of facts, change, effect, condition, development,
event or occurrence that materially and adversely affects (i) the business,
assets, condition (fmancial or otherwise) or results of operations of the
Business, (ii) the ability of Parent or Seller to perform its obligations under
this Agreement and the Ancillary Agreements or (iii) the ability of Parent,
Seller and their affiliates to consummate the Acquisition and the other
transactions contemplated by this Agreement and the Ancillary Agreements,
excluding any effect to the extent resulting from any state of facts, change,
effect, condition, development or occurrence (A) that is generally applicable in
the economies of the United States of America or any other country in which
there are sales of products of the Business, (B) that generally affects the
industries in which the Business operates, (C) that arise out of or are
attributable to the public announcement of this Agreement or the transactions
contemplated hereby or (D) that arise out of or are attributable to changes in
Applicable Laws, other than, in the case of clauses (A) and (B), any state of
facts, change, effect, condition, development or occurrence that
disproportionately affects the Business relative to other persons operating in
the industry in which the Business operates.
“subsidiary” of any
person means another person, an amount of the voting securities, other voting
ownership or voting partnership interests of which that is sufficient to elect
at least a majority of its Board of Directors or other governing body (or,
if there
are no such voting interests, 50% or more of the equity interests of which) is
owned directly or indirectly by such first person or by another subsidiary of
such person.
“Tax” or “Taxes” means all
forms of taxation imposed by any Federal, state, provincial, local, foreign or
other Taxing Authority, including income, franchise, property, sales, use,
excise, employment, unemployment, payroll, social security, estimated, value
added, ad valorem, transfer, recapture, withholding, health and other taxes of
any kind, whether disputed or not, and including any interest, penalties and
additions thereto.
“Taxing Authority”
means any Governmental Entity exercising any authority to impose, regulate or
administer the imposition of Taxes.
“Tax Return” means any
report, return, document, declaration or other information or filing required to
be supplied to any Taxing Authority with respect to Taxes, including any
schedule or attachment thereto, and including any amendment
thereof.
SECTION
9.05. Counterparts. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement, and shall become effective when one or more such
counterparts have been signed by each of the parties and delivered to the other
parties.
SECTION
9.06. Entire
Agreement. This Agreement, the Ancillary Agreements and
the Confidentiality Agreement, along with the Seller Disclosure Letter and the
Exhibits hereto and thereto, contain the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings relating to such subject
matter. Neither party shall be liable or bound to any other party in
any manner by any representations, warranties or covenants relating to such
subject matter except as specifically set forth herein or in the Ancillary
Agreements or the Confidentiality Agreement.
SECTION
9.07. Severability. If any provision of this
Agreement (or any portion thereof) or the application of any such provision (or
any portion thereof) to any person or circumstance shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof (or the remaining portion thereof) or the application of such
provision to any other persons or circumstances. Upon such
determination that any term or other provision is invalid, illegal on
unenforceable, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.
SECTION
9.08. Consent
to Jurisdiction. Each party irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other proceeding arising
out of this Agreement
or any transaction contemplated hereby. Each of Purchaser, Parent and
Seller agrees to commence any such action, suit or proceeding either in the
United States District Court for the Southern District of New York or if such
suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of Purchaser, Parent and Seller further agrees that
service of any process, summons, notice or document by U.S. registered mail to
such party’s respective address set forth above shall be effective service of
process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction in this Section
9.08. Each of Purchaser, Parent and Seller irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in (i) the Supreme Court of the State of New York, New York County, or
(ii) the United States District Court for the Southern District of New York, and
hereby and thereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum.
SECTION
9.09. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
SECTION
9.10. Waiver
of Jury Trial. Each party hereby waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in
respect to any litigation directly or indirectly arising out of, under or in
connection with this Agreement, any Ancillary Agreement or any transaction
contemplated hereby or thereby. Each party (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce that foregoing waiver and (b) acknowledges that it and the other
parties hereto have been induced to enter into this Agreement and the Ancillary
Agreements, as applicable, by, among other things, the mutual waivers and
certifications in this Section 9.10.
SECTION
9.11. Enforcement in Equity and at Law. The
parties hereto agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the parties hereto shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to
which they are entitled at law or in equity.
SECTION
9.12. Addition of Holdings. The provisions of
this Article IX shall also apply in all respects to Holdings, mutatis mutandis, as
if Holdings were named herein.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
63
IN WITNESS WHEREOF, Purchaser, Parent,
Seller and Holdings have duly executed this Agreement as of the date first
written above.
|
ARCH
CHEMICALS, INC.,
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇. Massimo | |
| Name: ▇▇▇▇▇ ▇. Massimo | |||
|
Title: Executive
Vice President
and Chief Operating Officer
|
|||
|
ROCKWOOD
SPECIALTIES INC.,
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
|
Title: Chairman
& CEO
|
|||
|
|
|||
|
ADVANTIS
TECHNOLOGIES, INC.
|
|||
|
|
By:
|
/s/ R. ▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: R. ▇▇▇▇▇ ▇▇▇▇▇ | |||
|
Title: President
|
|||
|
|
|||
|
ROCKWOOD
HOLDINGS, INC. (but
solely
with respect to Section 5.05,
Section
5.10 and Article IX),
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
|
Title: Chairman
& CEO
|
|||
ANNEX
I
Index of Defined
Terms
|
Term
|
|
|
Accounting
Firm
|
Section
2.03(c)
|
|
Acquired
Assets
|
Section
1.02(a)
|
|
Acquisition
|
Section
1.01
|
|
Acquisition
Proposal
|
Section
9.04(b)
|
|
Administrative
Assets
|
Section
1.02(b)(vii)
|
|
affiliate
|
Section
9.04(b)
|
|
Agreement
|
Preamble
|
|
Allocation
|
Section
5.12(a)(i)
|
|
Alpharetta
Site
|
Section
9.04(b)
|
|
Ancillary
Agreements
|
Section
1.02(b)(v)
|
|
Applicable
Law
|
Section
3.03
|
|
Applicable
Percentage
|
Section
5.07(f)(ii)
|
|
Assigned
Contracts
|
Section
1.02(a)(viii)
|
|
Assigned
Intellectual
Property
|
Section
1.02(a)(v)
|
|
Assigned
Technology
|
Section
1.02(a)(vi)
|
|
Assumed
Benefit
Plan
|
Section
3.17(a)
|
|
Assumed
Employment
Agreement
|
Section
5.07(a)
|
|
Assumed
Liabilities
|
Section
1.03(a)
|
|
Balance
Sheet
|
Section
3.04(a)
|
|
Bonus
Plans
|
Section
5.07(a)(iii)
|
|
Business
|
Preamble
|
|
Business
Employee
|
Section
5.07(a)
|
|
Business
Intellectual
Property
|
Section
3.07(a)
|
|
Business
Permits
|
Section
1.04(c)
|
|
Business
Property
|
Section
3.06
|
|
Closing
|
Section
2.01
|
|
Closing
Date
|
Section
2.01
|
|
Closing
Statement
|
Section
2.03(b)
|
|
Closing
Working Capital
Amount
|
Section
2.03(b)
|
|
COBRA
|
Section
5.07(d)
|
|
Code
|
Section
9.04(b)
|
|
Commonly
Controlled
Entity
|
Section
3.17(a)
|
|
Competitive
Activities
|
Section
5.10(a)
|
|
Confidentiality
Agreement
|
Section
5.04(a)
|
|
Conflict
|
Section
3.03
|
|
Consent
|
Section
3.03
|
|
Contract
|
Section
9.04(b)
|
|
Covered
Employee
Liabilities
|
Section
1.03(a)(v)
|
|
Deductible
Amount
|
Section
8.01(b)(i)
|
|
Environmental
Claim
|
Section
3.19(b)(i)
|
|
Environmental
Laws
|
Section
3.19(b)(ii)
|
|
EPA
|
Section
3.19(c)
|
|
Equity
Award
|
Section
5.07(k)
|
|
ERISA
|
Section
3.17(a)
|
|
Estimated
Purchase
Price
|
Section
2.03(a)
|
|
Estimated
Working Capital
Amount
|
Section
2.03(a)
|
|
Excluded
Assets
|
Section
1.02(b)
|
|
Excluded
Liabilities
|
Section
1.03(b)
|
|
FIFRA
|
Section
3.19(c)
|
|
FIFRA
Product
|
Section
3.19(c)
|
|
Final
Purchase
Price
|
Section
1.01
|
|
Financial
Statements
|
Section
3.04(a)
|
|
Fiscal
2007 Financial
Statements
|
Section
3.04(a)
|
|
GAAP
|
Section
9.04(b)
|
|
Governmental
Entity
|
Section
3.03
|
|
Guarantee
|
Section
9.04(b)
|
|
Hazardous
Materials
|
Section
3.19(b)(iii)
|
|
HSR
Act
|
Section
3.03
|
|
Indebtedness
|
Section
9.04(b)
|
|
indemnified
party
|
Section
8.04(a)
|
|
indemnifying
party
|
Section
8.04(a)
|
|
Intellectual
Property
|
Section
1.02(a)(v)
|
|
Interim
Financial
Statements
|
Section
3.04(a)
|
|
Inventory
|
Section
1.02(a)(ii)
|
|
IRS
|
Section
3.17(a)
|
|
Judgment
|
Section
3.03
|
|
knowledge
|
Section
9.04(b)
|
|
Liens
|
Section
3.05
|
|
Losses
|
Section
9.04(b)
|
|
Major
Customer
|
Section
3.23
|
|
Major
Supplier
|
Section
3.22
|
|
Material
Assigned
Contract
|
Section
3.08(a)
|
|
Material
Licenses
|
Section
3.07(g)
|
|
Material
Patent
|
Section
3.07(e)
|
|
Material
Permits
|
Section
3.12
|
|
Non-Transferable
Permits
|
Section
1.04(c)
|
|
Notice
of
Disagreement
|
Section
2.03(c)
|
|
On-Site
Environmental
Liabilities
|
Section
9.04(b)
|
|
Outside
Date
|
Section
7.01(a)(ii)(A)
|
|
Parent
|
Preamble
|
|
Parent
Consolidated Group
|
Section
3.04(c)
|
|
Permits
|
Section
3.12
|
|
Permitted
Goods and
Services
|
Section
5.10(a)
|
|
Permitted
Liens
|
Section
3.05
|
|
person
|
Section
9.04(b)
|
|
Personal
Property
|
Section
1.02(a)(iii)
|
|
Post-Closing
Tax
Period
|
Section
9.04(b)
|
|
Pre-Closing
Tax
Period
|
Section
9.04(b)
|
|
Primary
Obligor
|
Section
9.04(b)
|
|
Proceeding
|
Section
9.04(b)
|
|
Proposed
Divestiture
|
Section
5.10(c)
|
|
Purchase
Price
|
Section
1.01
|
|
Purchaser
|
Preamble
|
|
Purchaser
401(k)
Plan
|
Section
5.07(f)
|
|
Purchaser
Cafeteria
Plan
|
Section
5.07(j)
|
|
Purchaser
Material Adverse
Effect
|
Section
9.04(b)
|
|
Real
Property
Lease
|
Section
3.06
|
|
Receivables
|
Section
1.02(a)(iv)
|
|
Release
|
Section
3.19(b)(iv)
|
|
Representatives
|
Section
9.04(b)
|
|
Restraint
|
Section
6.01(b)
|
|
Seller
|
Preamble
|
|
Seller
401(k)
Plan
|
Section
5.07(f)
|
|
Seller
Benefit
Plan
|
Section
3.17(a)
|
|
Seller
Cafeteria
Plan
|
Section
5.07(j)
|
|
Seller
Disclosure
Letter
|
Article
III
|
|
Seller
Equity
Plan
|
Section
5.07(k)
|
|
Seller
Material Adverse
Effect
|
Section
9.04(b)
|
|
Seller
MPP
|
Section
5.07(f)(iii)
|
|
Seller
MPP
Contribution
|
Section
5.07(f)(iii)
|
|
Seller
PSP
Contribution
|
Section
5.07(f)(ii)
|
|
Seller
Specified
Representations
|
Section
8.01(b)(i)
|
|
Severance
Benefit
|
Section
5.07(h)
|
|
Scheduled
Intellectual
Property
|
Section
3.07(a)
|
|
Site
License
|
Section
5.13(b)
|
|
Specified
Information Technology
Assets
|
Section
1.02(a)(ix)
|
|
subsidiary
|
Section
9.04(b)
|
|
Target
Working Capital
Amount
|
Section
2.03(d)(i)
|
|
Tax
|
Section
9.04(b)
|
|
Taxing
Authority
|
Section
9.04(b)
|
|
Tax
Return
|
Section
9.04(b)
|
|
Technology
|
Section
1.02(a)(vi)
|
|
Third
Party
Claim
|
Section
8.04(a)
|
|
Transferred
Account
Balance
|
Section
5.07(j)
|
|
Transferred
Benefit Plan
Assets
|
Section
1.02(a)(xiii)
|
|
Transferred
Employee
|
Section
5.07(a)
|
|
Transferred
Permits
|
Section
1.02(a)(vii)
|
|
Transfer
Taxes
|
Section
1.03(b)(vii)
|
|
Transfer
Time
|
Section
5.07(a)
|
|
Transition
Services
Agreement
|
Section
5.13(a)
|
|
WARN
|
Section
5.07(g)
|
|
Working
Capital
Amount
|
Section
2.03(d)(i)
|