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EXHIBIT 99.2
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INVENTORY PURCHASE AGREEMENT
Between
UOP LLC ("UOP")
And
▇▇▇▇▇▇▇ INDUSTRIES INC. (the "Company")
Dated as of May 28, 1999
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INVENTORY PURCHASE AGREEMENT
Table of Contents
ARTICLE I
PURCHASE OF ASSETS;
ASSUMPTION OF CERTAIN LIABILITIES.................................................................................1
Section 1.1. Assets To Be Acquired......................................................................1
1.1.1. Inventory.................................................................2
1.1.2. Certain Rights............................................................2
Section 1.2. Excluded Assets............................................................................2
Section 1.3. Assumed Liabilities. .....................................................................2
Section 1.4. Excluded Liabilities. ....................................................................2
1.4.1. Taxes. ..................................................................2
1.4.2. Product Liability Claims. ...............................................3
1.4.3. Environmental Claims. ...................................................3
1.4.4. General. ................................................................3
ARTICLE II
THE CLOSING; PURCHASE PRICE.......................................................................................3
Section 2.1. The Closing. .............................................................................3
Section 2.2. Purchase Price.............................................................................3
2.2.1. Amount, Inventory Holdback and Inventory Holdback
Agreement........................................................3
2.2.2. Allocation................................................................4
Section 2.3. Transferable Equity........................................................................4
2.3.1. Transferable Balance Sheet................................................4
2.3.2. Completion................................................................5
Section 2.4. Post-Closing Adjustment of Purchase Price..................................................5
2.4.1. Closing Date Balance Sheet................................................5
2.4.2. UOP's Review. ...........................................................6
2.4.3. Statements of Closing Transferable Equity and Purchase Price
Adjustment.......................................................6
2.4.4. Delivery of Statements. .................................................7
2.4.5. Independent Review. .....................................................7
2.4.6. Resolution. .............................................................7
Section 2.5. Settlement of Purchase Price Adjustment. .................................................8
2.5.1. Increase In Purchase Price. .............................................8
2.5.2. Decrease In Purchase Price................................................8
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY....................................................................................................8
Section 3.1. Organization of the Company and the CRILAR JV. ...........................................8
Section 3.2. Qualification of the Company and the CRILAR JV. ..........................................8
Section 3.3. Corporate Authorization....................................................................9
3.3.1. Authority. ..............................................................9
3.3.2. No Breach or Violation. .................................................9
Section 3.4. Financial Statements......................................................................10
3.4.1. Schedules and Accuracy. .................................................10
3.4.2. No Undisclosed Liabilities...............................................10
3.4.3. Absence of Changes.......................................................10
3.4.4. Discharge of Liabilities.................................................11
Section 3.5. [INTENTIONALLY LEFT BLANK]..............................................................11
Section 3.6. Properties; Leases; Tangible Assets.......................................................11
3.6.1. Title....................................................................11
Section 3.7. Complete Sale.............................................................................12
Section 3.8. Backlog...................................................................................12
3.8.1. Amount...................................................................12
3.8.2. Ordinary Course..........................................................12
Section 3.9. Intellectual Property.....................................................................12
3.9.1. Patents and Know-How.....................................................12
Section 3.10. Litigation...............................................................................14
3.10.1. Litigation Pending or Threatened........................................14
3.10.2. This Transaction........................................................14
Section 3.11. Insurance................................................................................14
Section 3.12. Third Party Consents.....................................................................14
Section 3.13. Permits; Compliance; Reports; Clearances.................................................15
3.13.1. Necessary Permits.......................................................15
3.13.2. Compliance with Law.....................................................15
3.13.3. Reports.................................................................15
Section 3.14. Environmental Protection.................................................................15
3.14.1. Environmental Permits...................................................15
3.14.2. No Violation............................................................16
3.14.3. No Litigation or Proceedings............................................16
3.14.4. No Notice...............................................................16
3.14.5. No Basis For Liability..................................................16
3.14.6. No Expenditures.........................................................16
Section 3.15. Product Warranties.......................................................................17
3.15.1. Warranty Statements.....................................................17
3.15.2. Product Warranty Claims.................................................17
Section 3.16. Government Authorizations................................................................17
3.16.1. U.S. Authority..........................................................17
3.16.2. Foreign Authority.......................................................17
Section 3.17. Tax Matters..............................................................................18
3.17.1. Returns.................................................................18
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Section 3.18. Brokers..................................................................................18
Section 3.19. Material Disclosures.....................................................................18
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF UOP...........................................................................................................18
Section 4.1. Organization..............................................................................18
Section 4.2. Corporate Authorization...................................................................18
4.2.1. Authority................................................................18
4.2.2. No Breach or Violation...................................................19
Section 4.3. Government Authorizations.................................................................19
4.3.1. U.S. Authority...........................................................19
4.3.2. Foreign Authority........................................................19
Section 4.4. Brokers...................................................................................20
ARTICLE V
COVENANTS........................................................................................................20
Section 5.1. Conduct of the Business...................................................................20
5.1.1. Affirmative Covenants....................................................20
5.1.2. Negative Covenants.......................................................21
Section 5.2. Access to Information.....................................................................22
5.2.1. Access...................................................................22
5.2.2. Customer Introductions...................................................22
5.2.3. Access After Closing.....................................................22
Section 5.3. Filings and Authorizations................................................................22
5.3.1. HSR Act Filings..........................................................22
5.3.2. General..................................................................23
Section 5.4. Administration of Accounts................................................................23
5.4.1. In Trust For UOP.........................................................23
5.4.2. In Trust For the Company.................................................23
5.4.3. Accounts Payable by the Company..........................................23
5.4.4. Accounts Receivable of the Company.......................................23
Section 5.5. Tax Matters...............................................................................23
5.5.1. The Company's Obligations................................................23
5.5.2. UOP's Obligations........................................................24
5.5.3. Tax on Transaction.......................................................24
5.5.4. Tax Controversies, Assistance and Cooperation............................24
Section 5.6. Post-Closing Warranty Services............................................................26
Section 5.7. The Company's Trade Names.................................................................27
Section 5.8. Further Assurances........................................................................27
Section 5.9. Public Announcements......................................................................27
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ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF UOP.......................................................................27
Section 6.1. Conditions................................................................................27
6.1.1. Representations and Warranties...........................................27
6.1.2. No Material Adverse Change...............................................27
6.1.3. Schedules Delivered......................................................28
6.1.4. No Adverse Facts Disclosed...............................................28
6.1.5. HSR Act Waiting Period...................................................28
6.1.6. Obtaining of Consents and Approvals......................................28
6.1.7. Performance by the Company...............................................28
6.1.8. Absence of Litigation....................................................28
6.1.9. Officer's Certificate....................................................29
6.1.10. Delivery of Documents....................................................29
6.1.11. Approval by UOP Board....................................................29
Section 6.2. Waiver....................................................................................29
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY...............................................................30
Section 7.1. Conditions................................................................................30
7.1.1. Representations and Warranties...........................................30
7.1.2. HSR Act Waiting Period...................................................30
7.1.3. Performance by UOP.......................................................30
7.1.4. Absence of Litigation....................................................30
7.1.5. Officer's Certificate....................................................30
7.1.6. Obtaining of Consents and Approvals......................................30
7.1.7. Delivery of Documents....................................................31
Section 7.2. Waiver....................................................................................31
ARTICLE VIII
INDEMNIFICATION..................................................................................................31
Section 8.1. Survival of Certain Provisions............................................................31
8.1.1. Survival of Representations and Warranties...............................31
8.1.2. Covenants and Indemnification Provisions.................................31
Section 8.2. General Indemnity.........................................................................32
8.2.1. Indemnification by the Company...........................................32
8.2.2. Indemnification by UOP...................................................32
8.2.3. Limitations..............................................................32
8.2.4. No Limitation on Certain Claims..........................................33
8.2.5. Single Remedy............................................................33
Section 8.3. Defense of Third Party Claims.............................................................33
8.3.1. Notice...................................................................33
8.3.2. Defense of Claims........................................................34
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8.3.3. Settlement...............................................................34
8.3.4. Cooperation..............................................................34
8.3.5. Apportionment............................................................34
ARTICLE IX.......................................................................................................35
TERMINATION......................................................................................................35
Section 9.1. Termination Events. .....................................................................35
9.1.1. Breach...................................................................35
9.1.2. Mutual Consent...........................................................35
9.1.3. Closing Date.............................................................35
Section 9.2. Effect of Termination.....................................................................35
ARTICLE X........................................................................................................35
MISCELLANEOUS....................................................................................................35
Section 10.1. Waiver of Bulk Sales Laws................................................................35
Section 10.2. Confidentiality..........................................................................35
Section 10.3. Expenses.................................................................................36
Section 10.4. Amendment................................................................................36
Section 10.5. Entire Agreement.........................................................................36
Section 10.6. Notices..................................................................................36
Section 10.7. Severability.............................................................................37
Section 10.8. Remedies.................................................................................37
Section 10.9. Waiver...................................................................................38
Section 10.10. Binding Effect; Assignment...............................................................38
Section 10.11. Successors and Assigns...................................................................38
10.11.1. Attachment of Obligations..............................................38
10.11.2. Survival...............................................................38
Section 10.12. No Third Party Beneficiaries.............................................................38
Section 10.13. Counterparts.............................................................................38
Section 10.14. Governing Law............................................................................38
Section 10.15. Time of the Essence......................................................................38
Section 10.16. Construction.............................................................................39
10.16.1. Words..................................................................39
10.16.2. Cross-References.......................................................39
10.16.3. No Presumption.........................................................39
10.16.4. Exhibits and Schedules.................................................39
10.16.5. Headings...............................................................39
EXECUTION AND DELIVERY...........................................................................................39
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Exhibits Page Reference
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Exhibit A Inventory Holdback Agreement 46
Exhibit B ▇▇▇▇ of Sale 45
Exhibit C Certificate of Assumption 48
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Disclosure Schedules
Schedule 1.1.1 Inventory
Schedule 1.1.2 Certain Rights
Schedule 1.4.3 Certain Environmental Claims
Schedule 2.2.2 Allocation of Purchase Price
Schedule 2.3.1(a) Transferable Balance Sheet
Schedule 2.4.3(c) Agreed Upon Procedures
Schedule 3.2 Qualification of the Company
Schedule 3.4.1 Financial Statements
Schedule 3.4.2 Exceptions to Section 3.4.2
Schedule 3.4.3 Changes in Financial Statements
Schedule 3.4.4 Discharge of Liabilities
Schedule 3.6.1(d) Encumbrances to Title
Schedule 3.6.3 Condition
Schedule 3.8.1 Backlog
Schedule 3.9.1(a)-(d) Ownership of Patents and Know-How
Schedule 3.10.1 Litigation
Schedule 3.11 Insurance
Schedule 3.12 Third Party Consents
Schedule 3.13.1 Licenses and Permits
Schedule 3.13.2 Compliance with Law
Schedule 3.13.3 Governmental Reports
Schedule 3.14.1 Environmental Protection
Schedule 3.15.1 Product Warranties
Schedule 3.15.2 Warranty Claims
Schedule 3.18 Brokers
Schedule 4.3.1 Governmental Authorizations for UOP
Schedule 5.12(d) Capital Expenditures in Excess of $100,000
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Glossary (continued)
GLOSSARY
Term Section Where Defined
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Agreement Preamble
Alumina Business Division Preamble
Arbitration Section 10.8(b)
Assets Section 1.1
Assumed Liabilities Section 1.3
Claim Notice Section 8.3.1
Closing Section 2.1
Closing Date Section 2.1
Closing Date Balance Sheet Section 2.4.1
Closing Transferable Equity Section 2.4.3(a)
Code Section 5.7.2
Company Preamble
Computer Systems Section 3.9.1(e)
Company's Technology Section 3.9.1
CRILAR JV Section 2.3.1(b)
Division Preamble
Employees Section 3.11.1
Encumbrances Section 3.6.1
Environmental Laws Section 3.17.1
Excluded Assets Section 1.2
Excluded Liabilities Section 1.4
February Transferable Equity Section 2.3
February Trial Balance Sheet Section 2.3 (also Schedule 3.4.1)
Financial Statements Section 3.4.1
GAAP Section 2.3.1(a)
Holdback Amount (Inventory) Section 2.2.1
Holdback Agreement (Inventory) Section 2.2, Exhibit A
HSR Act Section 3.20.1(a)
Indemnified Party Section 8.2.3(a)
Indemnitor Section 8.2.3(a)
Inventory Section 1.2.5
Losses Section 8.2.1
Other Agreements Section 3.12
Patents and Licenses Section 3.9.1
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Glossary (continued)
Term Section Where Defined
---- ---------------------
Purchase Price Section 2.2
Purchase Price Adjustment Section 2.4.3(b)
Resolving Firm Section 2.4.6
Returns Section 3.17.1
Reviewing Firm Section 2.4.5
Statement of Closing Transferable Equity Section 2.4.3(a)
Statement of February Transferable Equity Section 2.3
Statement of Purchase Price Adjustment Section 2.4.3(b)
Taxes Section 3.21.1
Threshold Section 8.2.3(a)
Trademarks and Licenses Section 3.9.2
Transferable Equity Section 2.3
Transferable Balance Sheet Section 2.3
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INVENTORY PURCHASE AGREEMENT
INVENTORY PURCHASE AGREEMENT (hereinafter "this Agreement") made as of
this 28th day of May, 1999, between UOP LLC, a Delaware limited liability
company ("UOP") and ▇▇▇▇▇▇▇ Industries Inc., a Delaware corporation (the
"Company").
W I T N E S S E T H
WHEREAS, upon the terms and subject to the conditions hereinafter set
forth, the Company desires to sell, assign, convey and transfer to UOP, and UOP
desires to purchase and acquire from the Company, substantially all of the
inventory employed in the manufacture and distribution of activated aluminas,
promoted aluminas, flash calcined powdered aluminas, titanium dioxide catalysts,
hydrotalcites, hybrid combinations of zeolites and activated aluminas, and
Versal(R) gel aluminas produced at the Company's facility at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ or bought for resale (hereinafter sometimes
referred to as the "Alumina Business Division" or the "Division") of the
Company, and the Company desires to assign, transfer and novate and UOP desires
to assume certain obligations and liabilities of the Division; and
WHEREAS, the Company owns (or has the right to use) all of the right,
title and interest in the "Inventory" (as hereinafter defined) of the Division
as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, and the mutual
representations, warranties, covenants and agreements hereinafter set forth, and
each intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
PURCHASE OF ASSETS;
ASSUMPTION OF CERTAIN LIABILITIES
Section 1.1. Assets To Be Acquired. Subject to the terms and conditions
and in reliance upon the representations, warranties and agreements hereinafter
set forth, the Company hereby agrees to sell, assign, transfer, convey and
deliver to UOP or cause to be sold, assigned, transferred, conveyed and
delivered to UOP, and UOP hereby agrees to purchase from the Company, all of the
right, title and interest of the Company in and to the Inventory of the Division
of every kind and description, wherever located, which are directly or
indirectly owned by, leased by, or in the possession of either the Company or
any of its subsidiaries, and which are employed or intended to be employed or
held in connection with the Alumina Business Division of the Company or any of
its subsidiaries or are necessary for the continued operation of the Division,
consistent with past practice, whether or not reflected on the books and records
of the Company or any of its subsidiaries, other than the Excluded Assets (the
"Assets"), free and clear of all liens, claims, charges, security interests,
restrictions and other encumbrances of any kind or nature, except those set
forth in the relevant Schedules to this Agreement or otherwise specifically
assumed pursuant to this Agreement, including without limitation the assets,
properties, rights, contracts and operations described as follows:
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1.1.1. Inventory. All items of inventory, including without
limitation work-in-progress, finished goods, samples, stores and supplies, and
raw materials, wherever located, and notwithstanding how classified on the
balance sheet of the Division, which are employed or held for use in connection
with or are necessary for the continued operation of the Division, whether or
not reflected on the books and records of the Alumina Business Division of the
Company or any of its subsidiaries and notwithstanding how classified on the
balance sheet of the Division (the "Inventory"), including without limitation
those items to be listed on Schedule 1.1.1, such Schedule to be dated as of or
as close as practicable to the Closing Date and to be delivered as soon as
practicable after Closing but in any event no later than sixty (60) days after
the Closing Date; and
1.1.2. Certain Rights. Except as disclosed in Schedule 1.1.3
and subject to Section 1.5 hereof, all rights of the Company under or pursuant
to all warranties, representations and guarantees made by suppliers,
manufacturers and contractors in connection with products or services purchased
by the Company or any of its subsidiaries for use by the Division, or affecting
the Inventory employed or held for use in connection with, or necessary for the
continued operation of, the Division, whether or not reflected on the books and
records of the Company;
Section 1.2. Excluded Assets. Notwithstanding anything to the contrary
contained in Section 1.1 herein, the Company is not agreeing to sell, assign,
transfer or convey, and UOP is not agreeing to accept or purchase any of the
following assets, rights and properties of the Company (the "Excluded Assets"):
All assets of the Company and its subsidiaries other than the Assets.
Section 1.3. Assumed Liabilities. Subject to the terms and conditions
herein, and in reliance upon the representations, warranties and agreements
hereinafter set forth, UOP shall on the Closing Date assume, perform and in due
course pay and discharge the following obligations and liabilities of the
Division, (except for the Excluded Liabilities, hereinafter collectively
referred to as the "Assumed Liabilities"): None.
Section 1.4. Excluded Liabilities. The parties to this Agreement
expressly understand and agree that UOP shall not and does not hereby assume or
become liable for any obligations, liabilities, indebtedness, damages, claims,
judgments, penalties, fees, losses, costs or expenses of any kind of the Company
or of any subsidiary, whether due or to become due, asserted or unasserted,
accrued or unaccrued, liquidated or unliquidated, contingent, executory or
otherwise, howsoever or whenever arising including those relating to or arising
out of the Excluded Assets, which are not expressly assumed by UOP under Section
1.3 herein (the "Excluded Liabilities"). The Company shall retain and shall be
responsible for paying, performing and discharging when due all Excluded
Liabilities. The following is a non-exclusive listing of some of the liabilities
and obligations of the Company and its subsidiaries which UOP shall not assume
or agree to pay, perform or discharge, it being understood that such listing is
not intended to limit in any manner whatsoever the first sentence of this
Section 1.4:
1.4.1. Taxes. Any and all Federal, state, local, foreign,
franchise, sales, transfer, excise, fees, expenses, penalties, assessments or
other tax liabilities imposed upon or with respect to the Company or any of its
subsidiaries, the Assets, or any part thereof, with respect to all periods
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ending before, on or as of the Closing Date or with respect to the sale or
transfer of the Assets or the proceeds or gain resulting therefrom;
1.4.2. Product Liability Claims. Any and all claims in
existence as of the Closing Date and any and all claims arising or accruing on
or after the Closing Date, with respect to sales, leases or bailments of
products which have been shipped and invoiced by the Division or any subsidiary
of the Company on or before the Closing Date;
1.4.3. Environmental Claims. Any and all claims, liabilities
and obligations, including without limitation any and all items of litigation,
investigation, cleanup, removal and remediation, which relate to, are based upon
or arise from or in connection with, Federal, state or local environmental laws,
rules or regulations, whether such claims, liabilities or obligations are made
by or arise from any Federal, state or local governmental agency or authority or
by private parties, without regard to whether UOP has conducted an environmental
audit, and whether such claims arise or accrue before, on or after the Closing
Date, which relate to, are based upon, arise from or in connection with events,
circumstances, omissions or conditions existing or occurring on or before the
Closing Date including but not limited to those identified in Schedule 1.4.3;
and
1.4.4. General. Any and all debts, liabilities, obligations
and commitments arising after the Closing Date to the extent such debts,
liabilities, obligations or commitments relate to or arise from acts, events, or
omissions that occurred, or conditions or circumstances that existed, on or
before the Closing Date, whether or not any such act, event or omission,
condition or circumstance was lawful when it occurred or existed.
ARTICLE II
THE CLOSING; PURCHASE PRICE
Section 2.1. The Closing. The Closing of the sale and purchase of the
Assets (the "Closing") shall take place at the offices of Vedder, Price, ▇▇▇▇▇▇▇
& Kammholz, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00
a.m., local time, on the first business day after the satisfaction or waiver of
the conditions set forth in Articles VI and VII herein anticipated to be
Wednesday, June 2, 1999, or at such place, date, and time as the parties may
agree (the "Closing Date"), but in any event no later than June 3, 1999.
Section 2.2. Purchase Price.
2.2.1. Amount, Inventory Holdback and Inventory Holdback
Agreement. At the Closing UOP shall deliver or cause to be delivered, by bank
wire transfer in immediately available Federal funds to an account designated in
writing by the Company within three (3) business days prior to the Closing Date,
the Purchase Price (the "Purchase Price") less the "Inventory Holdback" (which
shall be equal to Eight Hundred Forty Thousand Dollars ($840,000) to be
administered pursuant to the Inventory Holdback Agreement attached hereto as
Exhibit A), which Purchase Price shall be Eight Million Four Hundred Ninety
Thousand Five Hundred Sixty Five Dollars ($8,490,565). The Purchase Price shall
be subject to a post-closing adjustment as provided in Section 2.4 herein.
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2.2.2. Allocation. UOP and the Company agree to allocate the
Purchase Price and any adjustments therein pursuant to Section 2.2 among the
Assets in accordance with United States Internal Revenue Code Section 1060 and
as set forth in Schedule 2.2.2 delivered hereunder. Prior to the Closing Date,
UOP and the Company shall mutually agree to this allocation and the information
which will be reported on US Internal Revenue Code Form 8594 or on such other
form or statement as may be required by law. UOP and the Company shall adhere to
such allocation for all purposes in any Federal and state income or franchise
tax return filed by them subsequent to the Closing Date, including the
determination by the Company of taxable gain or loss on the sale of Assets and
the determination by UOP of its tax basis with respect to the Assets.
Section 2.3. Transferable Equity. The Company has prepared: (a) a
balance sheet of the Division as of February 28, 1999 (the "February Trial
Balance Sheet"), (b) a balance sheet prepared in accordance with Subsection
2.3.1 herein to show the transferable equity in the Division as of February 28,
1999 (the "Transferable Balance Sheet"), and (c) a Statement of the February
Transferable Equity which shall be the Alumina Business Division of the
Company's equity reflected on the Transferable Balance Sheet.
2.3.1. Transferable Balance Sheet. The Transferable Balance
Sheet, delivered hereunder in Schedule 2.3.1(a), shall be prepared as follows:
(a) The Transferable Balance Sheet shall be prepared
in accordance with generally accepted accounting principles ("GAAP")
applied on a basis consistent with prior years, except as may be
provided in paragraph (b) of this Subsection 2.3.1, and shall be based
upon the February Trial Balance Sheet. The Transferable Balance Sheet
shall trace and reconcile any adjustments to the February Trial Balance
Sheet as may be necessary to prepare the Transferable Balance Sheet in
accordance with GAAP and this Subsection 2.3.1.
(b) The Transferable Balance Sheet shall be prepared
in accordance with the following:
(i) (A) Except as provided in Section
2.3.1(b)(i)(B) hereof, all intercompany accounts between the
Division, or any divisions, units, affiliates or subsidiaries
of the Company have been eliminated; and
(B) The investment in Crilar Alumina
Company, L.L.C. (the "CRILAR JV") shall be recorded in
accordance with past practice;
(ii) There shall not be any amounts included
as liabilities or reserves with respect to any accounting,
legal, investment or other professional or advisory fees or
expenses relating to the transactions contemplated by this
Agreement;
(iii) There shall not be any amount recorded
in any asset account to the extent that the benefits
associated with the related asset cannot be transferred
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to or realized by UOP, including, without limitation, any
amounts (A) intended to reflect potential prospective benefits
of the carryover of losses or of tax benefits or attributes of
the Company from periods prior to or ending on or as of the
Closing Date, (B) in respect of any insurance policy covering
any of the Assets if such insurance policy and the benefits
thereof will not be assigned or otherwise transferred to UOP
at the Closing, and (C) for an offsetting reserve or deferred
gain balance which offsets the CRILAR JV investment balance;
(iv) There shall not be any amounts included
as payables, liabilities or reserves which are not Assumed
Liabilities, inasmuch as such items are to be borne by the
Company under this Agreement, including without limitation (A)
liabilities relating to indebtedness for borrowed money or
negative cash balances; (B) liabilities relating to product
liability claims or any other litigation; (C) liabilities
relating to any environmental claims or potential claims,
including reserves for clean-up costs, or any of the items
pertaining to environmental compliance as discussed in Section
3.18 herein; (D) all costs or losses related to any disputes,
hearings, claims, investigations (whether governmental or
internal); and (E) liabilities relating to taxes for periods
ending on or prior to the Closing Date, other than unpaid
payroll and property taxes on the operations of the Company
properly accrued for any period ending after the Closing Date;
and
(v) There shall not be any amounts included
as liabilities or reserves for accrued but unpaid (A)
incentive compensation payments for any Employees (as such
term is defined in Subsection 3.12.1 herein) inasmuch as the
Company is to pay in full, pursuant to Subsection 5.6.2
herein, all such obligations to the Employees as soon as the
amounts of such obligations may be determined but in no event
later than when the Company makes similar payments to its
employees; and (B) any other accrued but unpaid obligations
incurred by the Company relating to the Plans (as such term is
defined in Section 3.12.3 herein), inasmuch as the Company
retains all obligations relating to the Plans as provided in
Section 5.7 herein.
2.3.2. Completion. The preparation of the February Trial
Balance Sheet, and the preparation of and report on the Transferable Balance
Sheet and the Statement of February Transferable Equity pursuant to this Section
2.3 shall be completed and delivered to UOP prior to the Closing Date.
Section 2.4. Post-Closing Adjustment of Purchase Price. The Purchase
Price shall be subject to adjustment following the Closing to reflect the
changes in the Transferable Equity relating to the Inventory of the Division
between February 28, 1999, and the close of business on the Closing Date, as
provided in this Section 2.4 and Section 2.5 herein.
2.4.1. Closing Date Balance Sheet. Promptly following the
Closing and as soon thereafter as practicable (but in any event within 60 days
of Closing), the Company shall prepare, or cause to be prepared, with full
cooperation and assistance of UOP, a balance sheet of the Assets
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and Assumed Liabilities as of the close of business on the Closing Date (the
"Closing Date Balance Sheet") as follows:
(a) The Closing Date Balance Sheet shall be based
upon and prepared in accordance with the principles used to prepare the
Transferable Balance Sheet pursuant to Subsection 2.3.1 herein, except
as may be provided in paragraph (b) of this Subsection 2.4.1.
(b) The Closing Date Balance Sheet shall also include
an adjustment for any differences noted between the Assets and Assumed
Liabilities and the assets and liabilities of the Division at Closing.
2.4.2. UOP's Review. With respect to preparation of the
Closing Date Balance Sheet pursuant to Subsection 2.4.1 herein, the Company
shall permit UOP and PWC or another independent accounting firm of nationally
recognized standing of UOP's choice, during the preparation or at any time
thereafter: (i) to review all working papers and computations prepared or used
by the Company in preparing the Closing Date Balance Sheet and in making any
adjustments thereto, (ii) to review all working papers and computations prepared
or used by any independent accounting firm retained by the Company to review or
assist in the preparation of the Closing Date Balance Sheet, and (iii) to review
all books, records and other relevant data of the Division. UOP shall pay the
fees and expenses of any accounting firm retained by it for the purpose of such
review of the foregoing, provided that the Company shall pay the fees and
expenses of any accounting firm that it retains at its discretion.
2.4.3. Statements of Closing Transferable Equity and Purchase
Price Adjustment. The Closing Date Balance Sheet shall be accompanied by the
following statements (including the "Agreed Upon Procedures Report" described in
Section 2.4.3(c) below) prepared by or caused to be prepared by the Company,
with full cooperation and assistance of UOP:
(a) A statement of the Closing Transferable Equity of
the Company, which shall be the amount of the Company's equity relating
to the Inventory of the Division appearing on the Closing Date Balance
Sheet of the Division (the "Closing Transferable Equity");
(b) A statement of the adjustment to the Purchase
Price, which shall be the difference between the Closing Transferable
Equity and the February Transferable Equity (such difference being the
"Purchase Price Adjustment"). The Statement of the Purchase Price
Adjustment shall trace and reconcile the amount of the Purchase Price
Adjustment to the amounts shown on the Closing Date Balance Sheet for
specific accounts of Assets and Assumed Liabilities; and
(c) The Company has engaged the Company's regular
independent accounting firm, Ernst & Young LLP ("E&Y"), or another
independent accounting firm of recognized standing of the Company's
choice, to conduct agreed upon procedures, as defined and as set forth
in Schedule 2.4.3(c), on the Inventory, as these items appear in the
Closing Date Balance Sheet of the Division.
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2.4.4. Delivery of Statements. As soon as practicable after
Closing, but not later than sixty (60) days after Closing the Company shall
deliver the Closing Date Balance Sheet, and the accompanying Statement of
Closing Transferable Equity and Purchase Price Adjustment and the "Agreed Upon
Procedures Report" contemplated by Schedule 2.4.3(c), to UOP together with a
certificate of the Vice President and Chief Financial Officer of the Company to
the effect that the Closing Date Balance Sheet was prepared in accordance with
GAAP on a basis consistent with prior years, except as specifically provided in
Subsection 2.4.1 and 2.4.3 herein.
2.4.5. Independent Review. UOP shall at its option cause PWC,
or another accounting firm of recognized standing of UOP's choice or
representatives of UOP's internal audit staff (the "Reviewing Firm"), to review
the Closing Date Balance Sheet, and the accompanying Statements of Closing
Transferable Equity and Purchase Price Adjustment. With respect to the foregoing
review:
(a) The parties expect the review of the Reviewing
Firm pursuant to this Subsection 2.4.5 will be completed within sixty
(60) days of the delivery date of the Closing Date Balance Sheet by the
Company to UOP.
(b) UOP shall permit the Company and any independent
accounting firm retained by the Company at the Company's expense for
this purpose, to review all working papers and computations used or
prepared by the Reviewing Firm.
(c) All fees and expenses of the Reviewing Firm shall
be paid by UOP.
2.4.6. Resolution. In the event that the Company and UOP are
unable to resolve any differences between them over the proposed Purchase Price
Adjustment within thirty (30) days thereafter, the Company and UOP shall jointly
and promptly refer such difference to KPMG Peat Marwick, Atlanta, Georgia (the
"Resolving Firm") to resolve any such differences and to prepare final
Statements of Closing Transferable Equity and Purchase Price Adjustment, which
Statements shall be final and binding upon the parties. With regard to the
foregoing resolution process:
(a) The Company and UOP shall each present their
differences in writing, with respect to the Closing Date Balance Sheet,
to the Resolving Firm (each party providing simultaneously to the other
party copies of all documents submitted to the Resolving Firm) within
ten (10) days of the retention of such firm by the Company and UOP.
(b) The Company and UOP shall comply promptly with
all reasonable requests of the Resolving Firm for access to
information, working papers, computations, books and records and the
like.
(c) The Resolving Firm shall not be retained to
conduct its own independent audit or review of the Closing Date Balance
Sheet, but rather shall be retained to resolve specific differences
between the Company and UOP as to the report of the Reviewing Firm and
within the range of such differences.
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(d) All fees and expenses of the Resolving Firm shall
be borne and shared equally by the Company and UOP.
Section 2.5. Settlement of Purchase Price Adjustment. Within five (5)
business days of the final determination of any Purchase Price Adjustment
pursuant to Section 2.4 herein, UOP and the Company shall settle on any such
adjustment as follows (and within two (2) business days of the final
determination of the Purchase Price Adjustment each party hereto shall notify
the other of the account referred to in Subsections 2.5.1 and 2.5.2 herein
designated to receive any such Purchase Price Adjustment and interest thereon
pursuant to this Section 2.5):
2.5.1. Increase In Purchase Price. If the Purchase Price
Adjustment reflects a net increase in the Purchase Price in excess of One Dollar
($1.00), UOP shall pay to the Company by bank wire transfer in immediately
available Federal funds to an account designated in writing by the Company the
sum of: (i) the Purchase Price Adjustment; and (ii) interest on the Purchase
Price Adjustment computed at a rate compounded per annum equal to the prime
commercial lending rate of ▇▇▇▇▇▇ Guaranty Trust Company of New York in effect
on the Closing Date from the Closing Date to the date of settlement.
2.5.2. Decrease In Purchase Price. If the Purchase Price
Adjustment reflects a net decrease in the Purchase Price in excess of One Dollar
($1.00), the Company shall pay to UOP by bank wire transfer in immediately
available Federal funds to an account designated in writing by UOP the sum of:
(i) the Purchase Price Adjustment; and (ii) interest on the Purchase Price
Adjustment computed at a rate compounded per annum equal to the prime commercial
lending rate of ▇▇▇▇▇▇ Guaranty Trust Company of New York in effect on the
Closing Date from the Closing Date to the date of settlement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
The Company hereby represents and warrants to UOP as of the date hereof
and as of the Closing Date as follows:
Section 3.1. Organization of the Company and the CRILAR JV. The Company
is a corporation duly incorporated and the CRILAR JV is a limited liability
company validly formed, and each is validly existing and in good standing under
the laws of the State of Delaware, and each has the requisite corporate power
and authority to own, operate or lease the properties relating to, used or held
in connection with the Division in all material respects as the Company is now
conducting the business of the Division consistent with past practice, except
that for accounting purposes, the Division has been accounted for as a
discontinued operation since October, 1998.
Section 3.2. Qualification of the Company and the CRILAR JV. Each of
the Company and the CRILAR JV is duly qualified or licensed as a foreign
corporation or foreign LLC, as applicable, to do business, and is in good
standing, in each jurisdiction where the character of the Assets, or the
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nature of its respective activities relating to the Division, makes such
qualification or license necessary, except those jurisdictions, if any, in which
the failure to so qualify would not have a material adverse effect on the
Assets, or results of operations or financial condition of the Division.
Schedule 3.2 delivered hereunder identifies: (i) each state in which the Company
and the CRILAR JV are qualified to do business; and (ii) the name and address of
the registered agent of the Company and the CRILAR JV in each such state.
Section 3.3. Corporate Authorization.
3.3.1. Authority. The Company has (and on the Closing Date
will have) all requisite corporate power and authority to enter into and perform
this Agreement and to consummate the transactions contemplated hereby. This
Agreement is a valid and binding obligation of the Company and its subsidiaries
and is enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application referring to or affecting enforcement of creditor's rights, or by
general equitable principles.
3.3.2. No Breach or Violation. Execution, delivery and
performance of this Agreement by the Company and consummation of the
transactions contemplated hereby will not lead to or cause a violation, breach,
or default or result in the termination of, or accelerate the performance
required by, or result in the creation or imposition of any Encumbrance (as
defined in Section 3.6.1), whether by notice or lapse of time or both, or
otherwise conflict with any term or provision of the following:
(a) The Certificate of Incorporation and By-laws, as
amended of the Company and the Limited Liability Company Agreement of
the CRILAR JV (subject to execution of Exhibit C hereto in its current
form, or as amended, subject to approval in writing of such amendment
by UOP which may be withheld by UOP in its sole discretion);
(b) Any note, bond, mortgage, contract, indenture or
agreement to lease, license or other instrument or obligation to which
the Company or any of its subsidiaries is a party or is bound: (i)
where such violation, breach or default would have a material adverse
effect on the Assets, or results of operations or financial condition
of the Division; or (ii) as to which required consents, amendments or
waivers shall have been obtained by the Company prior to the Closing
for any such violation, breach or default; or
(c) Any court or administrative order, writ or
injunction or process, or any permit, license, or consent decree to
which the Company or any of its subsidiaries is a party or is bound:
(i) where such violation, breach or default would have a material
adverse effect on the Assets, or results of operations or financial
condition of the Division; or (ii) as to which required consents,
amendments or waivers shall have been obtained by the Company prior to
the Closing for any such violation, breach of default.
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Section 3.4. Financial Statements.
3.4.1. Schedules and Accuracy. Attached hereto as Schedule
3.4.1 are the Division's unaudited (a) balance sheets and the related statements
of income as of and for the fiscal year ended February 28, 1999, and (b) the
February Trial Balance Sheet (collectively, the "Financial Statements"). The
Financial Statements present fairly, in all material respects, the financial
condition of the Division as of the date thereof and the results of operations
of the Division for the periods covered thereby; and except as set forth on
Schedule 2.3 hereto, have been prepared in accordance with generally accepted
accounting principles ("GAAP"), applied on a basis consistent with prior years.
3.4.2. No Undisclosed Liabilities. Neither the Company nor any
of its subsidiaries has any liabilities or obligations which relate to the
Assets or the Assumed Liabilities of any nature, secured or unsecured (absolute,
accrued, or unaccrued, liquidated or unliquidated, executory contingent or
otherwise and whether due or to become due), which are not disclosed in Schedule
3.4.2 or notes to the Financial Statements or were not reserved for in the
Financial Statements except for those liabilities and obligations of the Company
which relate to the Division or the Assets and were incurred since February 28,
1999 in the ordinary course of business.
3.4.3. Absence of Changes. Other than as set forth in Schedule
3.4.3 delivered hereunder, since February 28, 1999, there has not been:
(a) Any material adverse change in the Assets, or the
working capital, reserves, customer relations (which shall mean any
facts or circumstances negatively impacting the channels of
distribution and/or the top 25 customers of the Division including
notice of termination received by the Company prior to the Closing),
results of operations, raw material pricing, backlog or financial
condition of the Division or the CRILAR JV;
(b) Any material change in the contingent obligations
or liabilities of the Company which relate to the Division or the
CRILAR JV or Assets by way of guaranty, documentary credit, standby
credit, endorsement, indemnity, warranty or otherwise;
(c) Any waiver or cancellation by the Company or any
of its subsidiaries of valuable rights or of debts owed to them which,
taken as a whole, are material to the Assets, or results of operations
or financial condition of the Division or the CRILAR JV;
(d) Any increase in the rate or terms of compensation
payable, or potentially payable, by the Company to any managers or
employees of the Division or the CRILAR JV, except increases occurring
in the ordinary course of business in accordance with the Company's
customary practices (which shall include normal periodic performance
reviews and related compensation and benefit increases);
(e) Any material increase in the rate or terms of any
bonus, insurance, pension or other employee benefit plan, payment or
arrangement made to, for or with any of the managers or employees of
the Division or the CRILAR JV except increases occurring
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in the ordinary course of business in accordance with the Company's
customary practices (which shall include normal periodic performance
reviews and related compensation and benefit increases);
(f) Any loan to, or guarantees or assumption of any
loan or obligation on behalf of, any manager or employee of the
Division or the CRILAR JV except advances occurring in the ordinary
course of business in accordance with the Company's customary
practices;
(g) Any amendment to any agreement, commitment, or
transaction (including without limitation any borrowing, lease, capital
expenditure or capital financing) by the Company or any of its
subsidiaries, material to the Assets or the Division or the CRILAR JV
or which, if such action were taken on the date hereof, would require
disclosure pursuant to this Agreement, except any amendment to any
agreements, commitments or transactions entered into in the ordinary
course of business or in accordance with the terms of this Agreement;
or
(h) Any material change by the Company in its
accounting methods or practices, assumptions or methods of calculating,
or any change by the Company or the CRILAR JV in their respective
accounting principles affecting the Assets or the Division.
3.4.4. Discharge of Liabilities. Other than as set forth in
Schedule 3.4.4 delivered hereunder, since the Financials Date and as of the
Closing Date: (i) neither the Division nor the CRILAR JV has paid, discharged or
satisfied any and all claims, liabilities or obligations (absolute, accrued,
contingent or otherwise) other than the payment, discharge or satisfaction in
the ordinary course of business and consistent with past practice ; and (ii)
neither the Division nor the CRILAR JV has terminated, amended or suffered the
termination or amendment of, or failed to perform all of its respective
obligations in all material respects under, any material lease, arrangement or
license.
Section 3.5. [INTENTIONALLY LEFT BLANK]
Section 3.6. Properties; Leases; Tangible Assets.
3.6.1. Title. The Company has good, valid and marketable title
to or, in the case of leased properties, if any, a good valid and marketable
leasehold in, all of the Assets which it purports to own, including all assets
(real, personal or mixed, tangible or intangible) reflected on the Financial
Statements, except those assets disposed of in the ordinary course of business
after February 28, 1999. The title to the Assets of the Division is free and
clear of all title defects, objections, liens, mortgages, security interests,
pledges, charges and encumbrances, adverse claims, equities, or any other rights
of others or other adverse interests of any kind including without limitation,
leases, chattel mortgages, conditional sales contracts, collateral security
arrangements and other title or interest retention arrangements (collectively
the "Encumbrances"), and upon the transfer of the Assets to UOP hereunder, UOP
shall have good, valid and marketable title to the Assets, free and clear of any
Encumbrances, except as follows:
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(a) The lien of current taxes not yet due and
payable, or of taxes the validity of which is being contested in good
faith by appropriate proceedings and as to which adequate reserves have
been established by the Company;
(b) Any Encumbrances reflected on the Financial
Statements, with such changes in the amount thereof as may have
occurred in the ordinary course of business prior to the Closing Date
and which changes will not materially reduce or materially adversely
affect the value of such property and assets held by the Company, or
materially interfere with the use thereof by UOP immediately following
Closing;
(c) Such other imperfections of title or Encumbrances
which, as of the Closing Date, will not materially reduce the aggregate
value of the Assets or materially interfere with or materially
adversely affect the use thereof by UOP immediately following Closing;
and
(d) Any Encumbrances identified on Schedule 3.6.1(d)
delivered hereunder.
Section 3.7. Complete Sale. By consummation of the transactions
contemplated by this Agreement, the Company will have sold, assigned,
transferred and conveyed to UOP all of the Inventory now held by the Division
and the CRILAR JV (other than the Excluded Assets).
Section 3.8. Backlog.
3.8.1. Amount. Schedule 3.8.1 delivered hereunder sets forth
the backlog of the Division and the CRILAR JV, as of February 28, 1999, for
products and services to be provided by the Division and the CRILAR JV. Schedule
3.8.1 includes the name of each customer, the dollar amount of backlog, any
dollar amounts included which are unfunded by any customer in respect of
undelivered orders, a brief description of the products and services to be
provided, the proposed delivery dates therefor and any unexercised valid and
subsisting options in the backlog giving a brief description of the options and
the contracts to which they relate.
3.8.2. Ordinary Course. Except as set forth on Schedule 3.8.1,
all of the contracts constituting the backlog of the Division and the CRILAR JV
(i) have been entered into in the ordinary course of business at usual and
customary ▇▇▇▇-ups where appropriate, such ▇▇▇▇-ups consistent with the past
practices of the Division and the CRILAR JV, and (ii) would be capable of
performance by the Company, if it retained the Assets to be transferred and
Assumed Liabilities to be assumed hereunder, and made the planned capital
expenditures therefor, in accordance with the terms and conditions of each such
contract.
Section 3.9. Intellectual Property.
3.9.1. Patents and Know-How. Schedule 3.9.1 delivered
hereunder sets forth a complete and accurate list of each patent, patent
application and docketed invention, by date and
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germane case or docket number and country of origin, and each license or
licensing agreement, by date, term and the parties thereto, for each patent,
patent application, invention, trade-secret, rights to know-how, processes,
computer programs or use of technology, held or employed by the Division and the
CRILAR JV, relating to the Assets or Inventory; each such patent, patent
application, license or licensing agreement listed thereon hereinafter termed
the "Patents and Licenses". With respect to the Patents and Licenses, and with
respect to all other technology including but not limited to research and
development results, computer programs, processes, trade secrets, know-how,
formulae, inventions and manufacturing, engineering, quality control, testing,
operational, logistical, maintenance and other technical information and
technology held or employed by the Division and the CRILAR JV, relating to the
Assets or Inventory (the "Company's Technology"):
(a) Except as disclosed in Schedule 3.9.1(a), the
Company or the CRILAR JV owns, free and clear of all liens, pledges or
other encumbrances, all right, title and interest in the Patents and
Licenses and in the Company's Technology, with all rights to make, use,
and sell the property embodied in or described in the Patents and
Licenses and in the Company's Technology. Except as disclosed in
Schedule 3.9.1(a), the Company does not have any reason to know that
the use of the Patents and Licenses and the Company's Technology
conflicts with, infringes upon or violates any patent, patent license,
patent application, trademark, tradename, trademark or tradename
registration, copyright, copyright registration, service ▇▇▇▇, brand
▇▇▇▇ or brand name or any pending application relating thereto, or any
trade secret, know-how, programs or processes of any third person, firm
or corporation;
(b) Except as disclosed in Section 3.9.1(b), there
are no outstanding, or threatened, governmental, judicial or adversary
proceedings, hearings, arbitrations, disputes or other disagreements
and no notice of infringement has been served upon or otherwise come to
the knowledge of the Company with respect to any of the Patents and
Licenses or the Company's Technology;
(c) The Company either owns the entire right, title
and interest in, to and under, or has acquired in connection with the
acquisition of Inventory an implied license to use, any and all
inventions, processes, computer programs, know-how, formulae, trade
secrets, patents, trademarks, tradenames, brandnames and copyrights
which are or will be utilized in the operation of the Division and the
CRILAR JV as it exists as of the date hereof. Except as disclosed in
Schedule 3.9.1(c), no other inventions, processes, computer programs,
know-how, formulae, trade secrets, patents, trademarks, tradenames,
brand names, copyrights, licenses or applications are necessary for the
continued operation of the Division and the CRILAR JV and the Company
hereby agrees, without application of the $100,000 Threshold in Article
8.2.3, to indemnify and hold UOP harmless from any loss, damage or
expense including attorney's fees resulting from any claim against UOP
for infringement of: (i) the Company's A-204-8 Product (manufactured
and/or sold to others prior to the Closing or sold to UOP at the
Closing) by reason of U.S. Patent 5,316,998 (and/or foreign equivalent
patents) and the divisional applications 5,505,926 and 5,595,954 and
(ii) Company's A-204-1 Product (manufactured and/or sold by the Company
and/or UOP within five (5) years after Closing) by reason of the Garcin
U.S. Patent 5,288,849 and/or foreign equivalent patents;
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provided, however, that the liability of the Company under this clause
(ii) shall not (x) extend beyond three (3) years from the Closing
except for formal claims made prior thereto by UOP or third parties,
(y) exceed fifty percent (50%) of the loss, damage or expense, and (z)
exceed payments by the Company to UOP under this clause (ii) in excess
of Six Hundred Twenty Thousand Dollars ($620,000) in the aggregate;
(d) Upon receipt of the consents identified in
Schedule 3.9.1(d) and the consummation of the Closing hereunder, UOP
will be vested with all rights, title and interest, and rights and
authority to use in connection with the Division and the CRILAR JV, all
of the Patents and Licenses and the Company's Technology, except as
disclosed in Schedule 3.9.1(a); and
(e) The Company has taken steps to upgrade the
Holiday and DCS computer systems at the Division's Baton Rouge
manufacturing plant. Such systems, as well as the ▇.▇. ▇▇▇▇▇▇▇ system
and the plant's personal computers and Lotus Notes (for e-mail)
operated thereon (the "Computer Systems"), and the Computer Systems, to
the best knowledge of the Company after reasonable investigation, will
operate with year 2000 or later dates without material processing
deficiencies.
Section 3.10. Litigation.
3.10.1. Litigation Pending or Threatened. Except as disclosed
in Schedule 3.10.1 hereto: (i) there are no claims, actions, suits, hearings,
arbitrations, disputes, proceedings (public or private) or governmental
investigations pending or, to the knowledge of the Company, threatened, against
or affecting the Assets, at law or in equity, before or by any Federal, state,
municipal or other governmental or non-governmental department, commission,
board, bureau, agency, court or other instrumentality, or by any private person
or entity; (ii) there is no basis for any such action, suit or proceeding which
would, individually or in the aggregate, have a material adverse effect on the
Assets; and (iii) there are no existing or, to the knowledge of the Company,
threatened, orders, judgments or decrees of any court or governmental agency
materially affecting any of the Assets.
3.10.2. This Transaction. There are no legal, administrative,
arbitration or other proceedings or governmental investigations pending or, to
the knowledge of the Company, threatened, against the Division, the CRILAR JV or
the Assets which seeks to enjoin or rescind the transactions contemplated by
this Agreement or otherwise prevent the Company from complying with the terms
and provisions of this Agreement.
Section 3.11. Insurance. Schedule 3.11 includes a list of insurance
coverages applicable to the Company which also covers the Division.
Section 3.12. Third Party Consents. Schedule 3.12 hereto lists all
approvals, authorizations, certificates and consents of all third parties
(except for such approvals, authorizations, certificates and consents of
governmental bodies referred to in Section 3.16 herein) necessary or required to
effect the transfer to UOP of the Assets and upon receipt of the consents listed
in Schedule 3.12 and the consummation of this Agreement, UOP will succeed to all
of the Assets and will be entitled to
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hold and use the same to the full extent that each of the Division and the
CRILAR JV presently has the right to hold and use the same.
Section 3.13. Permits; Compliance; Reports; Clearances.
3.13.1. Necessary Permits. Schedule 3.13.1 hereto sets forth
all approvals, authorizations, certificates, consents, licenses, orders and
permits (except for sales and use tax permits and franchise tax registrations)
of all governmental agencies, whether Federal, state or local, necessary to the
operation of the Assets, including, without limitation, all permits and
approvals for the discharge of by-products and waste material into a public
waste discharge system (including those contemplated under the Servitude
Agreement by and between ▇▇▇▇▇▇ Aluminum Corporation and the Company effective
December 23, 1996), and except as set forth on Schedule 3.13.1 hereto, all such
approvals, authorizations, certificates, consents, licenses, orders and permits
are in full force and effect and no approval, authorization, certificate,
consent, license, order or permit of the Division has been denied or revoked
within the past five (5) years.
3.13.2. Compliance with Law. Except as set forth on Schedule
3.13.2 hereto, the use and ownership of the Assets does not violate or infringe
in any material respect any Federal law (including, without limitation, any that
relate to health and safety, environmental protection and pollution control,
sale and distribution of products and services, anti-competitive practices,
collective bargaining, equal opportunity and improper payments) or any foreign,
state, local or other laws, statutes, ordinances, regulations, or any order,
writ, injunction or decree of any court, commission, board, bureau, agency or
instrumentality. Any single or aggregate violation or infringement shall be
deemed to be "material" under this Subsection 3.13.2 if such violation or
infringement leads to any losses (as such term is defined in Subsection 8.2.1)
for UOP equal to or greater than Twenty- Five Thousand Dollars ($25,000).
3.13.3. Reports. Except as set forth on Schedule 3.13.3
delivered hereunder, all reports, documents and notices required to be filed,
maintained or furnished with or to all governmental regulatory authorities by
the Division, or by the Company on behalf of the Division, and for the CRILAR
JV, including, without limitation, all state and local governmental and
regulatory authorities of the Federal government, the States of Louisiana,
Delaware, Georgia and the County of ▇▇▇▇▇▇, Georgia and East Baton Rouge Parish,
Louisiana, have been so filed, maintained or furnished. All such reports,
documents and notices are true and correct in all material respects and, to the
extent required to be kept in the public inspection files of each of the Company
and the CRILAR JV, are kept in such files.
Section 3.14. Environmental Protection.
3.14.1. Environmental Permits. Except as set forth in Schedule
3.14.1 delivered hereunder the Company has obtained all permits, licenses and
other authorizations related to the Assets and which are required under Federal,
state, local and foreign laws relating to pollution or protection of the
environment, including laws relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial, toxic
or hazardous substances or wastes into the environment (including, without
limitation, ambient air, surface water,
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ground water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes or any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder (the "Environmental Laws"). Schedule 3.16.1
delivered hereunder sets forth (i) all such permits, licenses and other
authorizations issued under the Environmental Laws obtained by the Division
and/or the CRILAR JV and (ii) a description and good faith estimate by the
Company of the costs of all capital or other expenditures estimated in good
faith by the Company that may be necessary to maintain or qualify for each such
permit, license or other authorization.
3.14.2. No Violation. Except as set forth in Schedule 3.14.1,
the Division and the CRILAR JV are each in compliance in all material respects
with all terms and conditions of the required permits, licenses and
authorizations, and the Company also is in compliance in all material respects
with all other limitations, restrictions, conditions, standards, requirements,
schedules and timetables contained in the Environmental Laws. Any single or
aggregate omission or act of non-compliance shall be deemed to be "material"
under this Subsection 3.14.2 if such omission or act leads to any "losses" (as
such term is defined in subsection 8.2.1) for UOP equal to or greater than
Twenty-Five Thousand Dollars ($25,000).
3.14.3. No Litigation or Proceedings. Except as set forth in
Schedule 3.14.1, there is no pending civil or criminal litigation, notice of
violation or administrative proceeding relating in any way to the Environmental
Laws (it being understood that any such litigation, notice or proceeding
identified on Schedule 3.14.1 is an Excluded Liability as provided in Subsection
1.4.3 herein), including but not limited to notices, demand letters, claims,
litigations or proceedings based upon or relating to any federal, state or local
Environmental Law.
3.14.4. No Notice. Except as set forth in Schedule 3.14.1, the
Company does not have any reason to know of any threatened or potential civil or
criminal litigation, notice of violation or administrative action relating in
any way to the Environmental Laws and involving the Assets.
3.14.5. No Basis For Liability. Except as set forth in
Schedule 3.14.1, there are no past, present or, to the knowledge of the Company,
future events, conditions, circumstances, activities, practices, incidents,
actions or plans which may interfere with or prevent continued compliance with
the Environmental Laws, or which may give rise to any common law or legal
liability, or otherwise form the basis of any claim, action, demand, suit,
proceeding, hearing, study, or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling, or the emission, discharge, release or threatened release
into the environment, of any pollutant, contaminant, chemical, or industrial,
toxic or hazardous substance or waste (including but not limited to refractory
brick), including, without limitation, any liability arising, or any claim,
action, demand, suit, proceeding, hearing, study or investigation which may be
brought under any Environmental Laws.
3.14.6. No Expenditures. Except as set forth in Schedule 1.4.3
and 3.14.1, the Company is not required to make any capital or other
expenditures to comply with any Environmental Law existing as of Closing, nor is
there any reasonable basis on which any
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governmental or regulatory body or agency could take any action that would
require any such capital or other expenditures.
Section 3.15. Product Warranties.
3.15.1. Warranty Statements. Schedule 3.15.1 delivered
hereunder sets forth true, correct and complete copies of the current standard
forms and statements of product warranties and guaranties adopted by the Company
with respect to any product or service provided by the Division and/or the
CRILAR JV prior to Closing. Except as set forth on Schedule 3.15.1, there have
not been any material deviations from such warranties and guaranties during such
period, and salesmen, employees and agents of the Division and/or the CRILAR JV
are not authorized to undertake obligations to any customer or other third
parties in excess of such written warranties or guaranties.
3.15.2. Product Warranty Claims. Schedule 3.15.2 delivered
hereunder lists all claims made orally and/or in writing to the Company in
existence as of the date hereof with respect to product warranties and
guaranties on products or services provided by the Division and/or the CRILAR JV
together with a brief description of the material facts relating to each such
claim.
Section 3.16. Government Authorizations.
3.16.1. U.S. Authority. Execution, delivery and performance of
this Agreement by the Company, and consummation of the transactions contemplated
hereby, will not require any consent, approval, authorization, or permit from,
or any filing with or notification to, any United States, state or local
governmental or regulatory authority except with respect to the following:
(a) The pre-merger notification requirements of the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, 15 U.S.C. ss.
18a, and the regulations promulgated pursuant thereto (the "HSR Act");
(b) Such consents, approvals, authorizations, permits
and filings identified on Schedule 3.16.1 delivered hereunder; and
(c) Such consents, approvals, authorizations, permits
and filings the failure to obtain or make would not have, in the
aggregate, a material adverse effect on the Assets.
3.16.2. Foreign Authority. Execution, delivery and performance
of this Agreement by the Company, and consummation of the transactions
contemplated hereby, will not require any consent, approval, authorization, or
permit from, or any filing with or notification to, any governmental or
regulatory authority outside the United States.
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Section 3.17. Tax Matters.
3.17.1. Returns. All material tax returns, reports and forms
(collectively the "Returns") required to be filed on or before the Closing Date
by, or with respect to any activities of, the Company, with any domestic or
foreign taxing authority, have been or will be filed in accordance with all
applicable laws, are in all material respects (and, as to Returns not filed as
of the date hereof, will be) true, complete and correct, and all taxes, fees,
penalties, assessments, interest and other governmental charges (collectively
"Taxes") which were shown to be due on such Returns have been or will be paid
(either directly by the Company or indirectly through applicable tax sharing
arrangements) on or before their due dates.
Section 3.18. Brokers. Except as set forth in Schedule 3.18, the
Company has not paid or become obligated to pay any fee or commission to any
broker, finder, investment banker or other intermediary in connection with the
transactions contemplated by this Agreement. The Company shall be fully
responsible for any such fees, and UOP shall not have any liability whatsoever
therefor.
Section 3.19. Material Disclosures. No statement, representation or
warranty made by the Company in this Agreement, in any Exhibit hereto or
Schedule delivered hereunder, or in any certificate, statement, list, schedule
or other document furnished or to be furnished to UOP hereunder, contains any
untrue statement of a material fact, or fails to state a material fact necessary
to make the statements contained herein or therein, in light of the
circumstances in which they are made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF UOP
UOP hereby represents and warrants to the Company, as of the date
hereof, and as of the Closing Date, as follows:
Section 4.1. Organization. UOP is a limited liability company duly
formed under the laws of the state of Delaware, validly existing and in good
standing under the laws of the States of Delaware, Illinois and Louisiana, and
has the requisite corporate power and authority to own, operate or lease the
properties: (i) that UOP requires to carry on its businesses in all material
respects as such is now being conducted, and (ii) of the Division after
consummation by UOP of its acquisition pursuant to this Agreement .
Section 4.2. Corporate Authorization.
4.2.1. Authority. UOP has all requisite corporate power and
authority to enter into and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement is a valid and binding
obligation of UOP, enforceable in accordance with its terms, except as limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other laws
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of general application referring to or affecting enforcement of creditor's
rights, or by general equitable principles.
4.2.2. No Breach or Violation. Execution, delivery and
performance of this Agreement by UOP and consummation of the transactions
contemplated hereby will not cause a breach or default or otherwise conflict
with any term or provision of the following:
(a) UOP's certificate of formation and limited
liability company agreement, as amended;
(b) Any note, bond, mortgage or indenture to which
UOP is a party or by which UOP is bound (i) where such violation,
breach, or default would have a material adverse effect on the
business, results of operations, or financial condition of UOP and its
subsidiaries, considered as a whole, or (ii) as to which required
consents, amendments or waivers shall have been obtained by UOP prior
to the Closing for any such violation, breach or default; or
(c) Any court or administrative order, writ or
injunction or process, or any consent decree to which UOP is a party or
by which UOP is bound (i) where such violation, breach or default would
have a material adverse effect on the business, results of operations
or financial condition of UOP and its subsidiaries, considered as a
whole, or (ii) as to which required consents, amendments or waivers
shall have been obtained by UOP prior to the Closing for any such
violation, breach or default.
Section 4.3. Government Authorizations.
4.3.1. U.S. Authority. Execution, delivery and performance of
this Agreement by UOP and consummation of the transaction contemplated hereby,
will not require any consent, approval, authorization, or permit from, or any
filing with or notification to, any United States, state or local governmental
or regulatory authority except with respect to the following:
(a) The pre-merger notification requirements of the
HSR Act;
(b) Such other consents, approvals, authorizations,
permits and filings identified on Schedule 4.3.1 delivered hereunder;
and
(c) Such other consents, approvals, authorizations,
permits and filings the failure to obtain or make would not have, in
the aggregate, a material adverse effect on UOP's ability to deliver
the Purchase Price at Closing.
4.3.2. Foreign Authority. Execution, delivery and performance
of this Agreement by UOP, and consummation of the transaction contemplated
hereby, will not require any consent, approval, authorization, or permit from,
or any filing or notification to, any governmental or regulatory authority
outside the United States.
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Section 4.4. Brokers. UOP has not paid or become obligated to pay any
fee or commission to any broker, finder, investment banker or other intermediary
in connection with the transactions contemplated by this Agreement.
ARTICLE V
COVENANTS
Section 5.1. Conduct of the Business. Except as contemplated by this
Agreement or as otherwise agreed to in writing by UOP, during the period from
the date of this Agreement to the close of business on the Closing Date, the
Company will conduct the business of the Division and the CRILAR JV diligently
and substantially in the same manner as heretofore conducted and will maintain
the Assets in the ordinary course of business and consistent with the Company's
past practices.
5.1.1. Affirmative Covenants. The Company shall at all times
from the date hereof through the Closing Date:
(a) Use its reasonable best efforts to preserve and
protect the goodwill, rights, properties, assets and business
organization of the Division and the CRILAR JV;
(b) Use its reasonable best efforts to keep available
the services of the Employees and to maintain good employee
relationships;
(c) Use its reasonable best efforts to preserve and
protect the relationships of the Division and the CRILAR JV with
creditors, suppliers, customers, licensors, licensees, contractors,
distributors, the Government, lessors and lessees and others having
business relationships with it;
(d) Maintain the Assets in good and customary repair,
order and condition, reasonable wear and tear, damage by fire and other
casualty excepted, and promptly repair, restore or replace any Assets
which are damaged or destroyed by fire or other casualty, whether
insured or uninsured;
(e) Comply with all applicable Federal, state and
local laws, rules and regulations;
(f) File all tax returns required to be filed and
make timely payment of all taxes shown to be due on such returns;
(g) Use its reasonable best efforts to obtain, prior
to the Closing Date, all consents, approvals and waivers, including all
such consents, approvals or waivers required to be obtained from the
government (whether Federal, state or local), its customers and
lessors, and consents of the other parties to any teaming agreements,
partnerships or other arrangements between the Company and any other
person or entity, necessary or required
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to vest in UOP all of the Company's rights and title to, and interest
in, the Assets in conformity with the representations and warranties of
the Company herein;
(h) Promptly notify UOP in writing of any material
adverse change in the Assets, or the Company, including without
limitation any material adverse change in the results of operations or
financial condition of the Division or the CRILAR JV, or any material
adverse change with respect to the relationships of the Division or the
CRILAR JV or its creditors, suppliers, customers, licensors, licensees,
lessors and lessees, and others having business relationships with it;
(i) Promptly notify UOP in writing of the overt
threat, institution or receipt of any claim, action, suit, inquiry,
proceeding, notice of violation, demand letter, subpoena, government
audit or disallowance by or before any court or governmental or other
regulatory or administrative agency;
(j) Promptly supplement or amend and deliver to UOP
the Schedules that the Company is required to prepare hereunder with
respect to any matter arising hereafter which, if existing or occurring
as of the date of this Agreement, would have been required to have been
set forth and described in such Schedule. No supplement or amendment of
a Schedule made pursuant to this Subsection 5.1.1(j) shall be deemed to
cure any fraud or deliberate breach of any representation or warranty
made in this Agreement.
5.1.2. Negative Covenants. The Company will not do any of the
following, without the written consent of UOP which shall not be unreasonably
delayed or withheld, from the date hereof through the Closing Date:
(a) Incur or agree to incur any obligation or
liability (absolute or contingent) in connection with any of the
Assets, except liabilities incurred in the ordinary course of business
and liabilities arising out of, incurred in connection with, or related
to the consummation of this Agreement;
(b) Sell, transfer, assign, license or otherwise
dispose of, or encumber in any way, any of the Assets, excepting
disposition of the Assets in the ordinary course of business, or
disposition of such properties or assets as are no longer used or
usable in the Division and/or the CRILAR JV;
(c) Except in the ordinary course of business, waive
or cancel any of its rights or claims relating to the Assets;
(d) Make or commit to any capital expenditure, or
group of related capital expenditures, in excess of One Hundred
Thousand Dollars ($100,000), except those identified on Schedule
5.1.2(d); or
(e) Enter into, commit or propose to enter into any
contract, commitment or agreement with any customers or potential
customers or suppliers or potential suppliers,
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the estimated revenues or estimated costs to the Division and/or the
CRILAR JV from such contract, commitment or agreement would exceed One
Hundred Thousand Dollars ($100,000) or last for a term of six (6)
months or more; or
(f) Enter into or renew any lease of real property.
Section 5.2. Access to Information.
5.2.1. Access. From and after the date of this Agreement and
until the Closing Date, UOP and its agents and representatives shall have full
and complete access to all properties (whether real or personal), books and
records of the Company relating to the Division and the CRILAR JV (the
confidentiality of which UOP agrees to maintain) for purposes of conducting such
investigations, appraisals or audits at its own expense as UOP deems necessary
or advisable under the circumstances, and to discuss the Company, related
business affairs, and condition (financial or otherwise) of the Company and the
Assets with such persons, including but not limited to the directors, officers,
employees, accountants, landlords, counsel and creditors of the Company as UOP
considers necessary for the purposes of conducting such investigations,
appraisals or audits in connection with the transactions contemplated by this
Agreement.
5.2.2. Customer Introductions. The Company shall, upon request
of UOP, introduce UOP, or arrange for a personal introduction of UOP's
representatives, to customers of the Division and/or the CRILAR JV for the
purpose of insuring good customer relationships immediately following the
Closing.
5.2.3. Access After Closing. UOP shall make available to the
Company, its accountants, attorneys and other authorized representatives, upon
reasonable notice after Closing, the books and records of the Company obtained
from the Company pursuant to this Agreement, for inspection and copying. UOP
shall furnish to the Company, and the Company shall furnish to UOP, all
financial and tax return information as reasonably may be requested after the
Closing for the purpose of filing and/or defending tax returns of the Company or
UOP, or a subsequent purchaser of any of the Assets. UOP shall not destroy or
discard any books or records of the Company obtained from the Company pursuant
to this Agreement without first offering same to the Company within ten (10)
years of the Closing; it being understood that UOP shall not be liable to the
Company for the inadvertent destruction or loss of such books and records.
Section 5.3. Filings and Authorizations. The Company and UOP shall use
their best efforts, promptly after the date hereof, to comply with all Federal,
state, and local laws and regulations and to obtain all necessary governmental
authorizations, approvals, permits, licenses and waivers, with regard to the
transactions contemplated by this Agreement.
5.3.1. HSR Act Filings. The Company and UOP each shall
complete and file all reports and forms, and promptly respond to all second
requests or requests for additional information, as may be required by or
authorized under the HSR Act.
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5.3.2. General. The Company and UOP shall each use their
reasonable best efforts to take all actions necessary, proper, or deemed by them
advisable, to fulfill promptly their obligations hereunder and to consummate the
transactions contemplated by this Agreement. The Company and UOP will coordinate
and cooperate with each other in exchanging such information and supplying such
reasonable assistance as may be requested by the other in connection with the
foregoing.
Section 5.4. Administration of Accounts.
5.4.1. In Trust For UOP. All payments and reimbursements made
in the ordinary course by any third party in the name of or to the Company in
connection with or arising out of the Assets and Assumed Liabilities after the
Closing Date shall be held by the Company in trust to the benefit of UOP and
immediately upon receipt by the Company of any such payment or reimbursements,
the Company shall pay over to UOP the amount of such payment or reimbursement.
5.4.2. In Trust For the Company. All payments and
reimbursements made in the ordinary course by any third party in the name of or
to UOP in connection with or arising out of the Excluded Assets and Excluded
Liabilities after the Closing Date shall be held by UOP in trust to the benefit
of the Company and, payment or reimbursement, UOP shall pay over to the Company,
the amount of such payment or reimbursement.
5.4.3. Accounts Payable by the Company. The Company shall pay
all of the accounts payable of the Division outstanding as of the Closing (a
most recent list of which shall be provided by the Company to UOP at the Closing
and updated to the Closing within fifteen (15) days thereafter) in accordance
with the payment terms of such payables.
5.4.4. Accounts Receivable of the Company. To the extent that
any of the accounts receivable of the Company relating to the Division recorded
as of the Closing Date (a most recent list of which shall be provided by the
Company to UOP at the Closing and updated to the Closing within fifteen (15)
days thereafter) is or becomes in dispute, the Company agrees to consult with
UOP by written notice (providing sufficient information to UOP of the dispute)
and thereafter seek to remedy the dispute at least fifteen (15) business days
before taking any action to enforce collection of the disputed accounts
receivable.
Section 5.5. Tax Matters.
5.5.1. The Company's Obligations. The Company acknowledges its
legal obligations to pay Taxes relating to all items of income, loss, deduction
and credit attributable to the Company or relating to ownership of the Assets
with respect to any periods up to and including the Closing Date.
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5.5.2. UOP's Obligations.
(a) UOP acknowledges its legal obligations to pay
Taxes relating to all items of income, loss, deduction and credit
relating to ownership of the Assets with respect to any periods after
the Closing Date.
(b) UOP shall take all such steps as are necessary
(with full cooperation and assistance of the Company) to record the
transactions contemplated hereunder by this Agreement, as necessary in
the opinion of UOP, with any Federal, state, local or foreign recording
office.
5.5.3. Tax on Transaction.
(a) The Company agrees to pay all taxes, assessments,
transfer, recording, or other fees and charges which may be imposed
with respect to the sale and purchase of the Assets under this
Agreement, including those imposed on UOP. For taxes such as sales and
use, excise, value added and similar type taxes, which require the
Company to collect from UOP, the Company will report and pay any tax
due. In addition, the Vice President and Chief Financial Officer or
other Senior Officer of the Company thereafter shall promptly deliver a
certificate to UOP stating that such sales and use, excise, value added
or other tax returns have been filed and tax remitted. With respect to
taxes, fees, assessments and other charges reported and paid directly
by UOP, the Company will reimburse UOP for those taxes, fees,
assessments or other charges within thirty (30) days of the submission
of proof of payment to the Company.
(b) With respect to any penalties and interest
arising with respect to the transfer of taxes, both parties agree that
the party whose actions or inactions resulted in the penalties and
interest will bear the burden of the penalty and interest. If both
parties are at fault, or a fault cannot be determined, the parties
agree to share the penalties and interest equally.
5.5.4. Tax Controversies, Assistance and Cooperation.
(a) Notice. In the event any Tax Authority informs
either party of any notice of proposed audit, claim, assessment or any
other dispute concerning an amount of Taxes with which the other party
may incur liability hereunder, the party so informed shall promptly
notify the other party of such matter. Such notice shall contain
factual information (to the extent known) describing any asserted Tax
liability in reasonable detail and shall be accompanied by copies of
any notice or other documents received from any Tax Authority related
to this matter. If an indemnified party has knowledge of an asserted
Tax liability with respect to a matter for which that party is to be
indemnified hereunder and such party fails to provide the indemnifying
party prompt notice of such asserted Tax liability, and (i) if the
indemnifying party is precluded from contesting the asserted Tax
liability in any forum as a result of the failure to give prompt
notice, the indemnifying party shall have no obligation to indemnify
the indemnified party for Taxes, penalties or interest arising out of
such
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asserted Tax liability or (ii) if the indemnifying party is not
precluded from contesting the asserted Tax liability in any forum, but
such failure to provide prompt notice results in a monetary detriment
to the indemnifying party, then any amount which the indemnifying party
is otherwise required to pay to the indemnified party pursuant to this
Agreement, shall be reduced by the amount of the detriment.
(b) Control Rights. The party obligated by law to
file or report and pay the Taxes (Filing Party), shall control any
audits, disputes, administrative, judicial or other proceedings related
to those Taxes. Subject to the preceding sentence, (i) if the Filing
Party, is indemnified by the other party for the Taxes, the other party
will assume control and the Filing Party will act on behalf of the
other party and exercise reasonable care to preserve all the rights,
remedies and benefits allowed and (ii) should each party have a
responsibility for Taxes, each party shall be entitled to full
participation in that portion of the proceedings relating to the Taxes
with respect to which that party may incur a liability hereunder. For
purposes of this Section, the term "participation" shall include: (a)
participation in conferences, meetings or proceedings with any Tax
Authority, the subject matter of which includes an item for which such
party may have a liability hereunder, (b) participation in appearances
before any court or tribunal, the subject matter of which includes an
item for which such party may have a liability hereunder and (c) with
respect to the matters described in the preceding clauses (a) and (b),
participation in the submission and determination of the content of the
documentation, protests, memorandum of fact and law, briefs and the
conduct of oral arguments and presentations.
(c) Consent to Settlement. UOP and the Company shall
not agree to settle any Tax liability or compromise any claim with
respect to Taxes, which settlement or compromise may affect the
liability for Taxes, or right to a tax benefit of the other party,
without the consent of the other party. Such consent shall not be
unreasonably delayed or withheld.
(d) Assistance and Cooperation.
(i) UOP and the Company agree to cooperate,
and cause their affiliates to cooperate, with each other and
with each other's agents, including accounting firms and legal
counsel, in connection with Tax matters related to the
business of the Division, including (i) preparation and filing
of Tax Returns, (ii) determining the liability and amount of
any Taxes due or the right to and the amount of any refund of
Taxes, (iii) examinations of Tax Returns, and (iv) any
administrative or judicial proceedings in respect to Taxes
assessed or proposed to be assessed. Such cooperation shall
include each party making all information and documents in its
possession relating to the business of the Division available
to the other party. The parties shall retain all Tax Returns,
schedules and workpapers, all material records and other
documents relating thereto, until the expiration of the
applicable statue of limitations (including, to the extent
notified by any party, any extensions thereof) of the period
to which such Tax Return and other documents and information
relate. Each of the parties agrees to make available to the
other party, as reasonably
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requested and as available, personnel (including officers,
directors, employees and agents) involved in preparing,
maintaining and interpreting information and documents
relevant to Taxes and personnel reasonably required as
witnesses for administrative or judicial proceedings.
(ii) As part of the cooperation, UOP and the
Company each agrees to provide the other party with such
assistance as may reasonably be required in connection with
the preparation of any Tax Return, including the preparation
of the usual and customary Tax Return information packages.
(iii) With respect to the property tax
exemptions, issued by the State of Louisiana Board of Commerce
and Industry, related to the property to be transferred under
this Agreement, the Company agrees to cooperate and provide
assistance, as required, to effect a transfer of those
exemptions by transferring the Contracts for Exemption of Ad
Valorem Taxes.
(e) Tax Sharing Agreements. Any Tax Sharing
Agreements between the Company and any other party relating to the
Assets will terminate as of the Closing Date and will have no further
effect for any taxable year (whether past, current or future).
(f) Short Period for Subsidiaries. The Company will
include the taxable income or loss attributable to the Assets for all
periods through the Closing Date and pay any taxes attributable to such
income. The income attributable to the Assets will be apportioned
through the period up to and including the Closing Date and the period
after the Closing Date by closing the books of the Division and the
CRILAR JV as of the Closing Date.
(g) Clearance Certificates. On or prior to the
Closing Date, The Company will provide UOP, at UOP's request, with all
clearance certificates or similar documents, that may be required by
any governmental or taxing authority, in order to relieve UOP of any
obligations to withhold or escrow any portion of the Purchase Price.
(h) Expenses. Each party shall bear their own
expenses, incurred in connection with audits and other administrative
and judicial proceedings, relating to Taxes for which such party and or
its affiliates are liable under this Agreement.
Section 5.6. Post-Closing Warranty Services. Following the Closing, UOP
shall notify the Company of any claims from customers of the Division and the
CRILAR JV for defective products shipped and invoiced by the Company prior to
the Closing, and the Company shall be responsible for resolving in good faith
and consistent with its past practice any such claim without cost or expense to
UOP. The Company will consult with UOP regarding its proposed resolution of such
claims for warranty service before resolving any such claim. The Company shall
indemnify UOP against any loss, damage or expense resulting from any such claims
for warranty services granted by this Section, subject to Article VIII (except
the $100,000 Threshold set forth in Section 8.2.3(a) shall not apply).
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Section 5.7. The Company's Trade Names. UOP shall, as soon as its
reasonably practicable without incurring unreasonable expense, but in no event
more than eight (8) months from the Closing Date (the "Transition Period"),
remove signage, change promotional and advertising materials, and stationery and
packaging sent to third parties, and take such other action as is reasonable and
appropriate to indicate that there is no longer any relationship between the
Company and the Division, the CRILAR JV or the Assets, provided that nothing in
this Section 5.7 shall oblige UOP to take such action in respect of any
engineering or manufacturing drawings or prints. In addition, the Company hereby
grants UOP a royalty free non-exclusive license without right to sublicense
during the Transition Period to use the name ▇▇▇▇▇▇▇ Industries Inc. for the
purpose of complying with this Section 5.7 provided that UOP shall indemnify the
Company, subject to Article VIII hereof except the Threshold set forth in
Section 8.2.3(a) which shall not apply, from any loss, damage or expense
resulting from the use by UOP of the name ▇▇▇▇▇▇▇ as contemplated by this
Section 5.7.
Section 5.8. Further Assurances. From time to time after the Closing,
the Company will, at its own expense, execute and deliver, or cause to be
executed and delivered, such documents to UOP as UOP may reasonably request, and
from time to time after the Closing, UOP will, at its own expense, execute and
deliver such documents to the Company as the Company may reasonably request, in
order to more effectively consummate the transactions contemplated by this
Agreement.
Section 5.9. Public Announcements. Except as required by law, the
Company and UOP will consult with each other before issuing any press release or
otherwise making any public statement with respect to this Agreement and the
transactions contemplated hereby, and shall not issue any such press release or
make any such public statement prior to such consultation without the prior
written consent of the other party which shall not be unreasonably delayed or
withheld.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF UOP
Section 6.1. Conditions. The obligations of UOP under this Agreement to
perform Articles I and II herein shall be subject to the fulfillment, to its
reasonable satisfaction, on or prior to the Closing Date, of all of the
following conditions precedent:
6.1.1. Representations and Warranties. All representations and
warranties of the Company contained in this Agreement and in all certificates,
schedules and other documents delivered by the Company to UOP or its
representatives pursuant to this Agreement and/or in connection with the
consummation of transactions contemplated hereby shall be true, complete and
accurate in all material respects as of the date when made and as of the Closing
Date with the same force and effect as though such representations and
warranties had been made on and as of the Closing Date, except for changes
expressly permitted by this Agreement.
6.1.2. No Material Adverse Change. During the period from the
date hereof to the Closing Date, the Company shall not have sustained any
material loss or damage to the Assets, whether or not insured, which affects its
ability to conduct the operations of the Division and the
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CRILAR JV, nor shall there have been any material adverse change in its
business, financial condition, assets, liabilities (absolute, contingent or
otherwise), reserves or operations or its ability to conduct the operations of
the Division and the CRILAR JV as such is presently conducted.
6.1.3. Schedules Delivered. All Schedules to be delivered
prior to Closing to UOP by the Company hereunder shall have been so delivered
with time sufficient for UOP's review and in no event later than three (3) days
prior to Closing, and each such Schedule shall be satisfactory in form, and
content, to UOP, such satisfaction to be determined at UOP's reasonable
discretion. To the extent the Company updates any such Schedule immediately
prior to Closing as required by Subsection 5.1.1, paragraph (k) herein, each
such update shall be satisfactory in form, and content, to UOP, such
satisfaction to be determined at UOP's reasonable discretion. With respect to
items on Schedules or updates to Schedules that may be quantified in monetary
terms, the parties agree that such items having an impact on the Purchase Price
or Purchase Price Adjustment equal to or greater than Fifty Thousand Dollars
($50,000), individually or in the aggregate, may be objected to by UOP within
the standard of reasonableness (sometimes hereinafter referred to as the
"Standard of Reasonableness") under this Subsection 6.1.3.
6.1.4. No Adverse Facts Disclosed. Neither any investigation
of the Company by UOP nor any disclosure Schedule, nor any other document
delivered to UOP in connection with this Agreement, shall have revealed any
facts and circumstances which would be reasonably expected to cause a material
adverse effect on the Assets or UOP's ability to conduct the business and
operations of the Division or the CRILAR JV as such are presently conducted;
6.1.5. HSR Act Waiting Period. All waiting periods under the
HSR Act with respect to the purchase and sale of the Assets and the Division and
the interest of the Company in the CRILAR JV shall have been terminated or
expired.
6.1.6. Obtaining of Consents and Approvals. The Company shall
have executed and delivered to UOP, or shall have caused to be executed and
delivered, any consents, waivers, approvals, permits, licenses or authorizations
which, if not obtained on or prior to the Closing Date, would have a material
adverse effect on the Assets or on UOP's ability to conduct the operations of
the Division and the CRILAR JV immediately after the Closing.
6.1.7. Performance by the Company. The Company shall have
performed and complied in all material respects with all agreements, covenants,
obligations and conditions required by this Agreement to be performed or
complied with by the Company on or before the Closing Date, and all Schedules
delivered by the Company hereunder shall be acceptable in form and content to
UOP and its counsel within the Standard of Reasonableness. In addition, the
Company and UOP shall have simultaneously with the Closing hereunder consummated
the transactions contemplated by the Asset Purchase Agreement (the "APA")
between UOP and the Company of even date herewith.
6.1.8. Absence of Litigation. There shall not be in effect any
order enjoining or restraining the transactions contemplated by this Agreement,
and there shall not be instituted or pending any action or proceeding before any
Federal, state or foreign court or governmental agency
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or other regulatory or administrative agency or instrumentality (i) challenging
the acquisition by UOP of the Assets and the business of the Division or
otherwise seeking to restrain or prohibit consummation of the transactions
contemplated by this Agreement, or seeking to impose any material limitations on
any provision of this Agreement, or (ii) seeking to compel UOP or the Company to
dispose of or hold separate a material portion or the business of the Division
or Assets as a result of the transactions contemplated by this Agreement.
6.1.9. Officer's Certificate. UOP shall have received a
certificate, dated the Closing Date, executed on behalf of the Company by an
appropriate officer stating that the representations and warranties set forth in
Article III hereof continue to be true and correct and that the conditions set
forth in Sections 6.1.1 through 6.1.8 hereof have been satisfied.
6.1.10. Delivery of Documents. The execution and delivery to
UOP by the Company of the following, all dated as of the Closing Date:
(a) the ▇▇▇▇ of Sale with respect to the Assets in
substantially the form attached hereto as Exhibit B;
(b) the Inventory Holdback Agreement in substantially
the form attached hereto as Exhibit A;
(c) such other conveyances, instruments of title,
assignments, consents, recordings, and other documents as may be, in
the reasonable opinion of UOP, necessary or proper to transfer to UOP
ownership of the Assets and rights being acquired by UOP hereunder;
(d) certified resolutions of the Board of Directors
of the Company duly authorizing the execution and delivery of this
Agreement and the performance by the Company of its obligations
hereunder;
(e) such other documents, instruments and
certificates as may be reasonably requested by UOP or its counsel to
effectuate the transactions contemplated by this Agreement.
6.1.11. Approval by UOP Board. UOP shall have received
certified resolutions of the Board of Managers of UOP duly authorizing the
execution and delivery of this Agreement and the performance by UOP of its
obligations hereunder.
Section 6.2. Waiver. UOP may, at its sole discretion, waive in writing
fulfillment of any or all of the conditions set forth in Section 6.1 of this
Agreement, provided that such waiver granted by UOP pursuant to this Section 6.2
shall have no effect upon or as against any of the other conditions not so
waived.
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ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
Section 7.1. Conditions. The obligations of the Company under this
Agreement to perform Articles I and II herein shall be subject to the
fulfillment, to its reasonable satisfaction, on or prior to the Closing Date, of
all of the following conditions precedent:
7.1.1. Representations and Warranties. The representations and
warranties of UOP contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as though such representations and warranties had been made on and as of the
Closing Date.
7.1.2. HSR Act Waiting Period. All waiting periods under the
HSR Act with respect to the purchase and sale of the Assets and the Division
shall have been terminated or expired.
7.1.3. Performance by UOP. UOP shall have performed and
complied in all material respects with all agreements, covenants, obligations
and conditions required by this Agreement to be performed or complied with by
UOP on or before the Closing Date. In addition, the Company and UOP shall have
simultaneously with the Closing hereunder consummated the transactions
contemplated by the Asset Purchase Agreement between UOP and the Company of even
date herewith.
7.1.4. Absence of Litigation. There shall not be in effect any
order enjoining or restraining the transactions contemplated by this Agreement
and there shall not be instituted or pending any action or proceeding before any
Federal, state or foreign court or governmental agency or other regulatory or
administrative agency or instrumentality (i) challenging the acquisition by UOP
of the Assets or otherwise seeking to restrain or prohibit consummation of the
transactions contemplated by this Agreement, or seeking to impose any material
limitations on any provision of this Agreement, or (ii) seeking to compel UOP or
the Company to dispose of or hold separate a material portion of the business of
the Division or Assets as a result of the transactions contemplated by this
Agreement.
7.1.5. Officer's Certificate. The Company shall have received
a certificate, dated the Closing Date, executed on behalf of UOP by an
appropriate officer stating that the representations and warranties set forth in
Article IV hereof continue to be true and correct and that the conditions set
forth in Sections 7.1.1 through 7.1.4 hereof have been satisfied.
7.1.6. Obtaining of Consents and Approvals. The Company shall
have obtained or provided for: (a) all consents, waivers, approvals, permits,
licenses, authorizations and assignments required from third parties including
governmental and regulatory authorities which are necessary and material to the
consummation of the transactions contemplated by this Agreement and (b) the
approval by its Board of Directors and required lenders under its Credit
Agreement with Chase Manhattan Bank in order to authorize the execution and
delivery of this Agreement and the performance by the Company of its obligations
hereunder.
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7.1.7. Delivery of Documents. The execution and delivery to
the Company by UOP of the following, all dated as of the Closing Date:
(a) The Certificate of Assumption with respect to the
contracts, liabilities and obligations of the Company assumed by UOP
hereunder in substantially the form attached hereto as Exhibit C;
(b) The Inventory Holdback Agreement in substantially
the form attached hereto as Exhibit A;
(c) Certified resolutions of the Board of Managers of
UOP duly authorizing the execution and delivery of this Agreement and
the performance by UOP of its obligations hereunder; and
(d) Such other documents, instruments and
certificates as may be reasonably requested by the Company or its
counsel to effectuate the transactions contemplated by this Agreement.
Section 7.2. Waiver. The Company may, at its sole discretion, waive in
writing fulfillment of any or all of the conditions set forth in Section 7.1 of
this Agreement, provided that such waiver granted pursuant to this Section 7.2
shall not constitute a waiver by the Company of any other conditions not so
waived.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Survival of Certain Provisions.
8.1.1. Survival of Representations and Warranties. All
representations and warranties contained herein, in the disclosure schedules or
in any certificates or other documents delivered pursuant hereto, shall not be
deemed to be waived or otherwise affected by any prior knowledge of, or any
investigation made by or on behalf of, any party hereto. Each and every such
representation and warranty shall survive Closing and remain in full force and
effect until the first (1st) anniversary of the Closing Date except in respect
of those representations and warranties made in connection with or arising out
of Subsections 3.6.1 (Title to the Assets), 3.13.2 (Compliance With Law) and
Section 3.14 herein (Environmental Protection) which shall survive Closing and
remain in full force and effect until expiration of any rights of UOP or any
third party under law or equity with respect thereto.
8.1.2. Covenants and Indemnification Provisions. Each covenant
provision and each indemnification provision contained herein shall survive
Closing and remain in full force and effect in accordance with its terms until
the obligations arising thereunder have been fully performed and discharged.
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Section 8.2. General Indemnity.
8.2.1. Indemnification by the Company. After the Closing Date
the Company shall indemnify and hold UOP (and any wholly owned entity of UOP
taking title to the Assets) harmless on a dollar-for-dollar basis from and
against all losses, damages, reasonably foreseeable consequential damages,
liabilities, claims, demands, obligations, deficiencies, payments, judgments,
settlements, costs and expenses of any nature whatsoever (including without
limitation the costs and expenses of any and all investigations, actions, suits,
proceedings, demands, assessments, judgments, settlements and compromises
relating thereto, and reasonable attorneys' and others' fees in connection
therewith) (individually or in the aggregate "Losses") resulting from, arising
out of, or due to directly or indirectly from the following:
(a) Any inaccuracy or misrepresentation in, or breach
or non-fulfillment of, any representation or warranty of the Company,
or any breach or non-fulfillment of any covenant of the Company,
contained in this Agreement, in any Schedule delivered hereunder by the
Company or in any certificates or documents delivered by the Company
pursuant to this Agreement;
(b) Any and all matters or items discussed, contained
or identified in the following disclosure Schedules delivered
hereunder: (i) Schedule 3.4.5 (Discharge of Liabilities), (ii) Schedule
3.10.1 (Litigation), (iii) Schedule 3.13.2 (Compliance with Law), and
(iv) Schedule 3.14.1 (Environmental Protection);
(c) Any and all Excluded Liabilities including but
not limited to all liabilities specifically delineated in Section 1.4
(whether or not disclosed to UOP) including without limitation the
failure to discharge when and as due the Excluded Liabilities; and
(d) Any and all events, circumstances, actions or
omissions of the Company, its agents or affiliates, or any and all
conditions existing, on or prior to the Closing Date, (whether or not
disclosed to UOP) with respect to the Assets.
8.2.2. Indemnification by UOP. After the Closing Date UOP
shall indemnify and hold the Company harmless on a dollar-for-dollar basis from
and against any and all Losses resulting from, arising out of, or due directly
or indirectly from the following:
(a) Any inaccuracy or misrepresentation in, breach or
non-fulfillment of, any representation or warranty of UOP, or any
breach or nonfulfillment of any covenant of UOP, contained in this
Agreement, in any Schedule or Exhibit delivered hereunder by UOP, or in
any certificates or documents delivered by UOP pursuant to this
Agreement; and
(b) Any and all Assumed Liabilities.
8.2.3. Limitations. For purposes of this Section 8.2, and
except as provided in Subsection 8.2.4 herein:
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(a) No indemnification shall be required in respect
of any such misrepresentation or breach unless the amount for which
indemnity would otherwise be due for any item, loss or claim
individually or in the aggregate equals or exceed One Hundred Thousand
Dollars ($100,000) (sometimes hereinafter referred to as the
"Threshold" or the "Threshold Provisions"), in which case the
indemnifying party (the "Indemnitor") shall be responsible only for
such indemnifiable amount in excess of the Threshold provided, however,
that the aggregate indemnifiable amounts shall not exceed the Purchase
Price. Any indemnifiable liability with respect to Losses resulting
from the matters set forth in Subsection 8.2.1(a)-(d) and Subsection
8.2.2(a) and (b) herein shall include actual and consequential damages
sustained by the indemnified party (the "Indemnified Party") by reason
of such matters, net of any tax benefits realized by the Indemnified
Party; and
(b) Neither the Company nor UOP shall be entitled to
make any claim for indemnification under this Section 8.2, with respect
to the breach of any particular representation and warranty contained
herein, after the date on which such representation and warranty ceases
to survive pursuant to Section 8.1 herein; provided, however, that, if
prior to the date on which such representation and warranty ceases to
survive, the Indemnitor shall have received written notification of a
claim for indemnity hereunder specifying in reasonable detail the basis
of any such claim, and such claim shall not have been finally resolved
or disposed of at such date, such claim shall continue as a basis for
indemnity until it is finally resolved or disposed of, subject to
applicable statutes of limitation.
8.2.4. No Limitation on Certain Claims. The Threshold
Provisions of Subsection 8.2.3(a) herein shall not apply with respect to any
claims for breach of the representations and warranties of the Company contained
in Section 3.16 (Permits; Compliance; Reports; Clearances); Section 3.17
(Environmental Protection), or Section 3.21 (Tax Matters) herein, and UOP shall
be entitled to full and complete indemnification for such breach or default from
any losses arising therefrom, including, without limitation, from any actual and
reasonably foreseeable consequential damages sustained thereby but not in excess
of the Purchase Price.
8.2.5. Single Remedy. Neither party shall seek indemnification
for the same matter under both this Agreement and the IPA and the respective
Exhibits thereto. An election, in writing by an officer or duly authorized agent
of a party, to seek or request indemnification under this Agreement or the IPA
shall be deemed to be an irrevocable waiver by that party of any right to seek
compensation under the other agreement.
Section 8.3. Defense of Third Party Claims.
8.3.1. Notice. No right to indemnification hereunder shall be
available to an Indemnified Party with respect to a claim from any person not a
party to this Agreement unless such Indemnified Party shall have given to the
Indemnitor a written notice (a "Claim Notice") describing in reasonable detail
the facts giving rise to the claim for indemnification hereunder and enclosing a
copy of any papers served, promptly upon the Indemnified Party becoming aware of
such facts. In the case of a lawsuit being filed against any Indemnified Party,
"promptly" shall mean as soon as practicable but in no event later than the
earlier of: (a) ten 10 days before a responsive pleading
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is due or (b) thirty (30) days after the Indemnified Party is served with notice
of the suit. The failure to notify the Indemnitor under this Subsection 8.3.1
shall not relieve the Indemnitor of any liability that it may have to the
Indemnified Party otherwise than under this Article VIII unless such failure to
notify shall have resulted in the waiver of any affirmative defenses to any
third party claims or otherwise materially prejudiced the rights or ability of
the Indemnitor to defend the claim, whereupon such liability of the Indemnitor
to the Indemnified Party under this Article VIII shall be reduced only to the
extent the Indemnitor must pay any such third party claim by reason of the
waiver of an affirmative defense.
8.3.2. Defense of Claims. Upon receipt by the Indemnitor of a
Claim Notice, the Indemnitor shall have the right to direct or control the
administration and defense of the claim described therein. The Indemnified Party
shall have the right to approve the Indemnitor's selection of counsel with
respect to any such claim, such approval not to be delayed or withheld
unreasonably. The fees and expenses of the Indemnitor's counsel as well as the
fees and expenses of the Indemnified Party (incurred at the request of the
Indemnitor or required by the Indemnitee to enforce its rights hereunder) shall
be borne by the Indemnitor.
8.3.3. Settlement. The Indemnified Party may not settle a
claim for which indemnification is sought without the prior written consent of
the Indemnitor and shall, as soon as practicable, give written notice to the
Indemnitor of any proposed settlement of any third party claim. The Indemnitor
shall have the right, in its sole discretion, to settle with money any claim for
which indemnification has been sought hereunder, but shall have no right to
settle any such claim by agreeing to, or committing to agree on behalf of the
Indemnified Party, any encumbrance, lien or pledge of the Assets, or any
restriction on the conduct or business relating to the Assets as such is then
being conducted. An Indemnified Party may refuse to accept a settlement proposed
by the Indemnitor, but in such event the Indemnitor shall not be obligated to
pay more than the amount for which the Indemnitor was willing to settle the
claim (and any other Losses associated with such settlement), and the
Indemnified Party shall be responsible for all Losses greater than such amount.
Except following the refusal by an Indemnified Party to accept a settlement
proposed by the Indemnitor, under the condition set forth in the preceding
sentence, no Indemnified Party may settle a claim for which indemnification has
been sought hereunder.
8.3.4. Cooperation. Any Indemnified Party shall make available
to any Indemnitor and its attorneys and accountants, all books, records and
documents relating to any claim hereunder and the parties shall render to each
other reasonable assistance in the defense of any claim hereunder which arises
as the result of claims made by persons not a party to this Agreement.
8.3.5. Apportionment. In the event a claim arises under this
Article VIII in respect of which both UOP and the Company are partially liable,
such liability shall be apportioned as between UOP and the Company by mutual
agreement or, in the event no such agreement can be reached, by a court or
competent jurisdiction.
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ARTICLE IX
TERMINATION
Section 9.1. Termination Events. Subject to the provisions of Section
9.2, this Agreement may, by written notice given at or prior to the Closing in
the manner hereinafter provided, be terminated and abandoned only as follows:
9.1.1. Breach. By either the Company or UOP upon written
notice, if a material default or breach shall be made by the other, with respect
to the due and timely performance of any of the other party's respective
covenants and agreements contained herein, or with respect to the due compliance
with any of its respective representations and warranties contained in Article
III or IV, as applicable, and such default cannot be cured prior to Closing and
has not been waived;
9.1.2. Mutual Consent. By written mutual consent of the
Company and UOP; or
9.1.3. Closing Date. By written notice of either the Company
or UOP, if the Closing shall not have occurred on or before June 2, 1999, or
such later date as may be agreed upon by the parties; provided, however, that
the right to terminate this Agreement under this Subsection 9.1.3 shall not be
available to either of the respective parties whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before such date.
Section 9.2. Effect of Termination. In the event this Agreement is
terminated pursuant to Section 9.1 herein, all further rights and obligations of
the parties hereunder shall terminate, except that the obligations set forth in
Sections 10.2 and 10.3 herein shall survive; it being specifically agreed that
if this Agreement is so terminated by either UOP or the Company because one or
more of the conditions to its obligations hereunder as set forth in Articles VI
and VII herein is not satisfied as a result of the other party's failure to
comply with its obligations under this Agreement, the rights of the terminating
party to pursue all legal remedies for breach of contract and damages shall
survive such termination.
ARTICLE X
MISCELLANEOUS
Section 10.1. Waiver of Bulk Sales Laws. Each of UOP and the Company
hereby waive compliance by either of them or their respective subsidiaries, in
connection with transactions contemplated by this Agreement, with any applicable
bulk sales laws with respect to or requiring notice to any of the Company's
creditors, in effect as of the Closing Date.
Section 10.2. Confidentiality. Except for such documents, reports,
information and data (including financial statements) which are or hereafter
become of a public nature, prior to Closing (and, if this Agreement is
terminated, for three years after the date hereof) UOP shall treat as
confidential and, except as otherwise required in connection with the
consummation of the
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transactions contemplated hereby, or except as compelled to disclose by judicial
or administrative process or, in the opinion of its counsel, by other
requirements of law, will not use, submit or disclose to, or file with, others,
or permit any person, firm, corporation or entity under its control to use,
submit or disclose to, or file with, others, any documents, reports, information
or data (including financial statements) concerning the Company which UOP may
obtain from the Company within 90 days of the date hereof; and, except for such
documents, reports and other written materials (including financial statements)
which are or hereafter become of a public nature, if this Agreement is
terminated, UOP shall return to the Company any and all such documents, reports
and other written materials (including financial statements) concerning the
Company or the Assets as the Company may reasonably request.
Section 10.3. Expenses. Except as otherwise provided in this Agreement,
each of the respective parties to this Agreement shall pay their own costs and
expenses (including all legal, accounting, broker, finder and investment banker
fees) relating to this Agreement, the negotiations leading up to this Agreement,
and the transactions contemplated by this Agreement.
Section 10.4. Amendment. This Agreement shall not be amended or
modified except by a writing duly executed by the Company and UOP.
Section 10.5. Entire Agreement. This Agreement, including the Exhibits
hereto and the Schedules delivered hereunder, contain all of the terms,
conditions and representations and warranties agreed upon by the parties
relating to the subject matter of this Agreement and supersede all prior and
contemporaneous agreements, negotiations, correspondence, undertakings and
communications of the parties, oral or written, respecting such subject matter.
Section 10.6. Notices. All notices, requests, demands and other
communications made in connection with this Agreement shall be in writing and
shall be deemed to have been duly given on the date of delivery, if delivered by
hand or by facsimile to the persons identified below, or three (3) days after
mailing if mailed by certified or registered mail, postage prepaid, return
receipt requested, addressed as follows:
If to UOP:
UOP LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and General Counsel
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With a copy to:
Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
If to the Company:
▇▇▇▇▇▇▇ Industries Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and Chief
Financial Officer
With a copy to:
▇▇▇▇▇▇▇ Industries Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President and General Counsel
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided in this Section.
Section 10.7. Severability. If any provision of this Agreement is held
to be unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to this Agreement to the
extent possible. In any event all other provisions of this Agreement shall be
deemed valid and enforceable to the full extent possible.
Section 10.8. Remedies.
(a) The remedies provided herein are exclusive and shall be
for indemnification except that the parties shall also have the remedy of
rescission in the event of fraud, provided that arbitration as contemplated by
Section 10.8(b) hereof shall not apply in the event of fraud, and all remedies
available at law or in equity shall be available in a fraud action. UOP agrees
that the Federal or state court in Atlanta, Georgia shall be the forum for any
such action by UOP and the Company agrees that the Federal or state court in
Chicago, Illinois shall be the forum for any fraud action by the Company;
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(b) Claims for Indemnification under this Agreement for any
matter (other than those claims for fraud) hereof shall be resolved in
accordance with the procedures for arbitration set forth in Section 3(e) of the
Inventory Holdback Agreement whether or not the Inventory Holdback Agreement is
then in effect; and
Section 10.9. Waiver. Waiver of any term or condition of this Agreement
by either of the respective parties shall only be effective if in writing and
shall not be construed as a waiver of any subsequent breach or failure of the
same term or condition, or a waiver of any other term or condition, of this
Agreement.
Section 10.10. Binding Effect; Assignment. No party to this Agreement
may assign or delegate, by operation of law or otherwise, all or any portion of
its rights, obligations or liabilities under this Agreement without the prior
written consent of the other party to this Agreement, which it may withhold in
its absolute discretion except.
Section 10.11. Successors and Assigns.
10.11.1. Attachment of Obligations. Subject to the provisions
of Section 10.10 herein, the rights, liabilities and obligations of the parties
hereto arising under this Agreement shall (whether by operation of law or by
virtue of Section 10.11.1 of this Agreement) attach to the respective parties'
successors and assigns.
10.11.2. Survival. The provisions of this Section 10.11 shall
remain in full force and effect and shall survive for an indefinite period
without end.
Section 10.12. No Third Party Beneficiaries. Except as provided in this
Agreement, nothing in this Agreement shall confer any rights upon any person or
entity who or which is not a party to this Agreement.
Section 10.13. Counterparts. This Agreement may be signed in any number
of counterparts with the same effect as if the signatures to each counterpart
were upon a single instrument, and all such counterparts together shall be
deemed an original of this Agreement.
Section 10.14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware and of the United
States without giving effect to the doctrine of conflicts of laws.
Section 10.15. Time of the Essence. Time shall be of the essence in the
performance of this Agreement.
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Section 10.16. Construction.
10.16.1. Words. All references in this Agreement to the
singular shall include the plural, the plural shall include the singular where
applicable, and all references to gender shall include both genders and the
neuter. All references in this Agreement to days shall be calendar days unless
specified as business days. All accounting terms not otherwise identified herein
shall have the meanings assigned to them in accordance with GAAP consistently
applied.
10.16.2. Cross-References. References in this Agreement to any
Article shall include all Sections, Subsections, and Paragraphs in such Article;
reference in this Agreement to any Section shall include all Subsections and
Paragraphs in such Section; and references in this Agreement to any Subsection
shall include all Paragraphs in such Subsection. Words "herein," "hereof,"
"hereunder" and words of similar import refer to this Agreement as a whole and
not to any particular paragraph or other subdivision unless the context
otherwise so admits.
10.16.3. No Presumption. In interpreting any provision of this
Agreement no presumption shall be drawn against the party drafting the
provision.
10.16.4. Exhibits and Schedules. Exhibits and Schedules
referred to herein are hereby incorporated into and made part of this Agreement.
10.16.5. Headings. The table of contents and the headings to
each Article, Section and Subsection herein are for the purposes of convenience
only and shall not be read or interpreted as having any meaning or effect.
EXECUTION AND DELIVERY
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement with legal and binding effect as of the date and year first above
written.
UOP LLC THE COMPANY
▇▇▇▇▇▇▇ INDUSTRIES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- ------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Vice President Title: Vice President and Chief Financial
------------------------ Officer
39
50
"Exhibits and schedules omitted intentionally, but will be provided upon
request."