Exhibit 2.1
ASSET PURCHASE AGREEMENT
Dated as of February 5, 1997
among
SPACEHAB ACQUISITION CORP.
a Delaware corporation and a wholly-owned subsidiary of
SPACEHAB, Incorporated
"BUYER,"
and
SPACEHAB, INCORPORATED
a Washington corporation
"SPACEHAB,"
and
ASTROTECH SPACE OPERATIONS, L.P.
a Delaware limited partnership
"SELLER,"
and
NORTHROP GRUMMAN CORPORATION
a Delaware corporation
"PARENT"
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of February 5, 1997 (this
"Agreement"), is by and among SPACEHAB ACQUISITION CORP., a Delaware
corporation, as buyer ("Buyer"), SPACEHAB, INCORPORATED, a Washington
corporation ("SPACEHAB"), ASTROTECH SPACE OPERATIONS, L.P., a Delaware limited
partnership ("Seller"), and NORTHROP GRUMMAN CORPORATION, a Delaware corporation
("Parent").
WHEREAS, Seller is engaged in the business of providing satellite payload
processing facilities and related services to commercial and governmental
customers (the "Business");
WHEREAS, Seller's principal offices are located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and its principal operations occur at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; and ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ at ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
WHEREAS, Seller is a wholly-owned subsidiary of Parent;
WHEREAS, Buyer is a wholly-owned subsidiary of SPACEHAB;
WHEREAS, in order to induce Seller to enter into this Agreement, SPACEHAB
has agreed to join in the representations and warranties, and to guarantee fully
the payment and performance of all obligations of Buyer hereunder;
WHEREAS, in order to induce Buyer to enter into this Agreement, Parent has
agreed to join in the representations and warranties, and to guarantee fully the
payment and performance of all obligations of Seller hereunder;
WHEREAS, Buyer desires to purchase on a going-concern basis substantially
all of the assets and the Business of Seller and Seller desires to sell such
assets and the Business to Buyer, all upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, for and in consideration of the foregoing premises, the
representations, warranties, covenants and agreements herein contained and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
Article I. SALE AND PURCHASE.
Section 1.1 Sale and Purchase of Assets. In reliance on the
representations, warranties and covenants contained herein and subject to the
terms and conditions hereof, on the Closing Date (as hereinafter defined),
Seller will sell, assign, convey, transfer and deliver to Buyer free and clear
of all Liens (as hereinafter defined) other than Permitted Liens (as hereinafter
defined), and Buyer will purchase and acquire from Seller, on a going-concern
basis, all of the Business and goodwill of Seller and all of the assets,
properties and rights of Seller of every kind and description, wherever located,
real, personal or mixed, tangible or intangible, used or usable in connection
with the Business, and whether now owned or hereafter acquired prior to the
Closing Date (except as otherwise hereinafter expressly excluded), including
without limitation, all right, title and interest of Seller in, to and under
(collectively, the "Assets"):
(a) Balance Sheet. All assets of Seller reflected on the consolidated
balance sheet of Seller at December 31, 1996 (the "Balance Sheet Date") (other
than Excluded Assets as hereinafter defined), with only such changes therein as
shall have occurred in the ordinary course of business of the Business and in
accordance with this Agreement between the Balance Sheet Date and the Closing
Date, or otherwise as may have been consented to in writing by Buyer;
(b) Accounts Receivable. All accounts, accounts receivable notes and notes
receivables (including all accounts, accounts receivable, notes and notes
receivable which have been "written off" or charged against or to any bad debt
reserve of Seller), together with any unpaid interest or fees accrued thereon or
other amounts due with respect thereto, of Seller that relate to the Business,
and any security or collateral for any of the foregoing (collectively, "Accounts
Receivable");
(c) Personal Property. All personal property and interests therein,
including, without limitation, machinery, fuel, telecommunication devices and
other communications equipment, computers, furniture, tools, fixtures, office
equipment, office supplies, containers and other packaging materials, safety
equipment, maintenance supplies and all other similar items, motor vehicles
owned or leased by Seller (including equipment financed under capital lease
obligations), spare and replacement parts and other tangible property (and
interests in any of the foregoing) owned by the Seller, (collectively, "Personal
Property");
(d) Contracts. All of Seller's right, title and interest in and to each
lease, license, contract, agreement, purchase or sales order, employee secrecy
or confidentiality agreement (in each case to the extent transferrable),
undertaking, indenture and commitment, written or oral, to which Seller is a
party or by which any of the Assets is then bound including all on-going
agreements, licenses, commitments, work orders or other engagements and other
instruments of any kind, including all agreements and understandings by any
person or entity with Seller with respect to non-competition or non-disclosure
that relate to the Business or any of the Assets including each agreement
pursuant to which payload processing services are provided to any entity or
governmental agency ("Provider Contracts"), but excluding Employee Plans and
Indebtedness (all of the foregoing to be assigned to Buyer pursuant hereto are
hereinafter referred to collectively as the "Contracts" and individually as a
"Contract");
(e) Real Property. All owned real property, and all other owned interests
in real property ("Real Property") and all leases of real property and all other
leased interests in real property ("Real Property Leases"), in each case that
are used in the Business and in each case together with Seller's right, title
and interest in all buildings, improvements, fixtures and all other
appurtenances thereto;
(f) Books and Records. All books of account, financial and accounting
records and other data of Seller relating to the Assets or the business or
operations of the Business including catalogues and brochures of any nature,
customers' and suppliers' lists and all payroll, personnel and other employee
records, other than books, records and other data relating solely to the
Excluded Assets and the Excluded Liabilities (as hereinafter defined)
(collectively, "Records");
(g) Names. All of Seller's goodwill relating to the Business and Seller's
rights to the use of the names and marks "Astrotech," "Astrotech Space
Operations, L.P.," "Astrotech Space Operations, Incorporated" and any and all
formative, variants and derivatives thereof (collectively, the "Names");
(h) Future Contracts. Any written quotation, bid or proposal made or
received by Seller in connection with the Business that if accepted would lead
to a contract with a Person (as defined herein) for the provision of services by
the Business (collectively, "Future Contracts");
(i) Prepaid Expenses. All expenses that have been prepaid by Seller to the
extent relating to the Business or the Assets, including, without limitation,
all security deposits required for the operation of the Business or relating to
the Assets, prepaid real estate, sales, use and other taxes of Seller and lease
and rental payments, to the extent due after the Closing Date, but excluding
prepaid insurance and prepaid expenses relating to contracts, agreements or
other instruments, the liabilities and obligations with respect to which do not
constitute Assumed Liabilities (collectively, "Prepaid Expenses");
(j) Claims. All of Seller's rights, claims, causes of action or rights of
set-off against third parties relating to the Business or the Assets, including,
without limitation, third-party indemnities and rights under manufacturer's and
vendors' warranties (collectively, "Claims");
(k) Permits. All governmental or regulatory licenses, permits, clearances,
franchises, approvals, authorizations, certificates and pending applications
thereunder required to conduct the Business (collectively, "Permits"), but only
to the extent transferable to Buyer;
(l) Intellectual Property. (i) All mailing lists, client lists, customer
and prospect lists, dealer, supplier and distributor lists and account files,
order and order log books, commission records, price lists, confidential or
secret processes, manuals or business procedures or information, trade secrets,
technology, inventions, technical information, research records, market surveys,
promotional literature, sales brochures, know-how devices, discoveries, designs,
improvements, formulae, plans, ideas, concepts and other proprietary or
confidential information used in or relating to the Business (including, without
limitation, financial information and pricing arrangements with clients or
suppliers), (ii) (A) all U.S. and foreign utility and design patents of any
description and pending applications therefor, all U.S. and foreign
registrations of trademarks, and of other marks, all registrations of trade
names, business names, logos, labels or other trade rights, all registered user
entries, all pending applications for any such registrations or entries, all
copyrights registrations and pending applications therefor, all other
copyrights, assumed names, service marks, trademarks and other marks, trade
dress, trade names and other trade rights and licenses therefor, and all other
inventions and designs, whether or not patentable, all Contracts relating to the
foregoing, all to the extent that the foregoing items are owned in whole or in
part or used by the Seller and that relate to or are used by or in the Business,
but only to the extent that any item that is so used but not owned is
transferable to Buyer; and (B) all computer software (including, without
limitation, all computer programs, source or object codes, user interfaces,
manuals, data bases, data files and documentation) owned in whole or in part,
licensed or used by Seller and that relate to or are used by or in the Business,
but only to the extent that any such item that is not owned by Seller is
transferrable to Buyer (collectively, including clauses (A) and (B),
"Intellectual Property");
(m) Warranties. All rights of Seller under express or implied warranties,
to the extent such warranties are transferable, from the suppliers of Seller
with respect to the Assets (collectively, "Warranties");
(n) Telephonic and Computer Listings. All Seller's telephone listings and
the right to use the telephone and facsimile numbers and e-mail and website
addresses currently used in the Business; and
(o) Other. All other real and personal property, rights and assets (whether
owned, leased or licensed) of the Seller not listed above and which now or
hereafter comprise, or which are now or hereafter used or useful in connection
with the operation of, the Business.
Section 1.2 Excluded Assets. Notwithstanding anything contained in Section
1.1 hereof to the contrary, Seller is not selling, and Buyer is not purchasing,
pursuant to this Agreement, any of the following, all of which shall be retained
by Seller (hereinafter referred to collectively as the "Excluded Assets"):
(a) Seller's minute books, tax returns, financial records and employment
records and other organizational documents and seals; provided, however, that
Buyer shall have reasonable access to such financial records and employment
records relating to the Business and the right to review and copy such records
for as long as Seller maintains such records, which shall in no event be less
than three (3) years from the Closing Date;
(b) all books, records, correspondence and other information which relates
exclusively to the Excluded Assets;
(c) any tax refunds, insurance refunds from prepaid insurance, insurance
deposits or recoveries from claims with respect to periods (or portions thereof)
ending prior to the Closing Date; and
(d) any consideration received by Seller pursuant to this Agreement, or the
rights of Seller under this Agreement.
Section 1.3 Assumption of Liabilities and Obligations. On the Closing Date,
Buyer shall assume and agree to pay, perform and discharge the following (and
only the following) liabilities and obligations of the Seller to the extent (and
only to the extent) that they relate to the Business (the "Assumed
Liabilities"):
(a) all liabilities and obligations of Seller (other than federal, state,
local or foreign tax liabilities and other than notes payable, and other than
with respect to the Employee Plans) reflected or reserved against in the
Reference Balance Sheet (as hereinafter defined), but only if and to the extent
the same have not been paid or discharged prior to the Closing Date; and
(b) to the extent assignable, all liabilities and obligations of Seller
under each Contract listed as being assumed by Buyer on Schedule 4.19 hereto, to
the extent such liabilities and obligations accrue and are required to be paid
or performed after the Closing Date.
The assumption by Buyer of the Assumed Liabilities shall not enlarge any rights
of any Person under any contracts or arrangements with Seller. Nothing contained
herein shall prevent Buyer from contesting any of the Assumed Liabilities with
any third party obligee.
Section 1.4 Excluded Liabilities. Except as expressly provided in Section
1.3 above, Buyer is not assuming any liabilities or obligations of the Seller of
any kind, character or description, whether accrued, absolute, contingent or
otherwise, including, without limitation, any liability of Seller to the extent
related to the Excluded Assets, any liability under any federal, state, local or
foreign Environmental Laws (as hereinafter defined), whether disclosed or
undisclosed, known or unknown, to the extent arising from any event,
circumstance or condition occurring or existing at any time on or prior to the
Closing Date (the "Excluded Liabilities"). Without limiting the foregoing, Buyer
is not assuming any liabilities or obligations to offer employment to any
Personnel of the Business, unless Buyer in its sole discretion determines to do
so, nor is Buyer assuming any liabilities or obligations of Seller, Parent or
predecessor employers for wages, salary, vacation, profit- sharing, incentive,
deferred compensation, welfare, pension, retirement, group insurance, bonus,
severance or other employee or fringe benefit plans or programs or payroll
practices, including without limitation, the Employee Plans.
Article II. PURCHASE PRICE; ADJUSTMENT.
Section 2.1 Purchase Price. The purchase price to be paid by Buyer to
Seller for the Assets being purchased by Buyer hereunder is Nineteen Million
Dollars ($19,000,000), adjusted in accordance with the terms of Section 2.2
hereof (the "Purchase Price"). On the Closing Date, Buyer shall pay to Seller
the Purchase Price, in immediately available funds (cash, certified check or
wire transfer to such bank account or accounts as Seller shall have theretofore
designated in writing to Buyer at least two (2) business days prior to the
Closing Date).
Section 2.2 Adjustment of Purchase Price.
(a) Closing Balance Sheet. As soon as practicable after the Closing Date
but within thirty (30) calendar days after the Closing Date, Seller shall
prepare, and shall deliver to Buyer, at Seller's expense, an unaudited balance
sheet (the "Closing Balance Sheet") of the Business as at the Closing Date,
which Closing Balance Sheet shall be reviewed by the Seller's independent public
accountants, and accompanied by a certification of Seller's principal accounting
officer (the "Certification") to the effect that the accounting principles used
in preparing the Closing Balance Sheet are consistent with those used in
preparing the Reference Balance Sheet (as hereinafter defined), except that no
allowance for depreciation or amortization shall be made from the Reference
Balance Sheet to the Closing Balance Sheet. For purposes of the Closing Balance
Sheet and the Reference Balance Sheet, "net asset value" shall mean total assets
minus total liabilities, with property, plant and equipment on the Closing
Balance Sheet reported on the same basis as on the Reference Balance Sheet.
(b) Review of Closing Balance Sheet. Buyer shall have the right to review
the Closing Balance Sheet and Seller shall provide Buyer with access to the work
papers used in connection with the preparation of the Closing Balance Sheet. If
Buyer does not notify Seller to the contrary within forty-five (45) days after
the date the Closing Balance Sheet is delivered to Buyer, then the Closing
Balance Sheet delivered by Seller shall be deemed to be final, conclusive and
binding on the parties. If, however, Buyer notifies Seller in writing within
such period that it believes the Closing Balance Sheet was not prepared on a
basis consistent with that used in preparing the Reference Balance Sheet and
specifies (i) the items as to which it believes the accounting principles used
in preparing the Closing Balance Sheet were inconsistent with those used in
preparing the Reference Balance Sheet and (ii) the amount of the adjustment it
proposes with respect to each item, the parties will then attempt to resolve
their differences with respect thereto. If the parties are unable to resolve
their dispute, the disputed items shall be referred, within one-hundred twenty
(120) days after the date the Closing Balance Sheet is delivered to Buyer, to
Ernst & Young, LLP, certified public accountants (the "Firm") (or if such firm
is unable or unwilling to serve, to another "Big Six" accounting firm selected
by mutual agreement of the parties) which shall be asked to determine whether
there was an inconsistency in the application of accounting principles between
those used in preparing the Reference Balance Sheet and those used in preparing
the Closing Balance Sheet and report to Seller and Buyer upon such remaining
disputed items within forty-five (45) days after such referral. As stated in
Section 2.2(a), no adjustment or allowance shall be made on the Closing Balance
Sheet for depreciation or amortization after the Reference Balance Sheet Date.
The decision of the Firm shall be final, conclusive and binding on the parties
hereto. The fees and expenses of the Firm shall be shared equally by Buyer and
Seller.
(c) Cooperation. Representatives of Seller shall be given access to all
books, records and other data of the Business for the purpose of preparing the
Closing Balance Sheet. Personnel of the Buyer may be consulted from time to time
by such representatives.
(d) Settlement of Adjustment of Purchase Price. Within ten (10) days after
the final determination of the Closing Balance Sheet, Seller shall pay to Buyer
the amount by which the net asset value of the Business as set forth on the
Reference Balance Sheet exceeds the net asset value of the Business as set forth
on the Closing Balance Sheet, or Buyer shall pay to Seller the amount by which
the net asset value of the Business as set forth on the Closing Balance Sheet
exceeds the net asset value as set forth on the Reference Sheet, as the case may
be. In the event Buyer disputes any part of the Closing Balance Sheet pursuant
to the provisions of Section 2.2(b) hereof, those portions of the Closing
Balance Sheet which are not in dispute shall be deemed finally determined, and
the payer of any adjustment due in accordance with this Section 2.2(d) shall
nevertheless pay to the payee, within thirty (30) days after the Closing Balance
Sheet is delivered to Buyer by Seller, all amounts then due with respect to such
portion of the Closing Balance Sheet which has been deemed finally determined.
The amount of the payments described in this Section 2.2(d) shall be paid by
Seller to Buyer, or by Buyer to Seller, as the case may be, with interest
thereon from the Closing Date to the date of such payment, calculated at a rate
equal to "Prime Rate" quoted by The Chase Manhattan Bank, New York, New York on
the Closing Date, in immediately available funds remitted by wire transfer to a
bank designated by the payee thereof.
Section 2.3 Allocation of Purchase Price. The Purchase Price, as adjusted
pursuant to Section 2.2 hereof (and all other capitalizable costs), shall be
allocated among the various categories of Assets, in such manner as shall be
negotiated and agreed by the parties hereto in good faith, in accordance with
Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code") and
the regulations promulgated thereunder and all applicable provisions of state,
local or foreign law. Each of the parties hereto agrees to prepare and file all
Tax Returns (as such term is hereinafter defined in Section 4.8), including Form
8594, in a manner consistent with such allocation and to report this transaction
for federal, state, local and foreign income tax purposes in accordance with
such allocation of the Purchase Price and shall use its best efforts to sustain
such allocation in any subsequent tax audit or dispute.
Section 2.4 Closing Proration. After Closing, any ad valorem, use, real
property, personal property and other taxes, installments or special
assessments, utility, water or similar payments which become due and payable
after the Closing Date and relate to periods both before and after the Closing
Date shall be prorated and adjusted between each of Seller and Buyer as of the
Closing Date on a per diem basis and Seller shall be responsible for and pay the
portion of such amounts allocable to the period prior to the Closing Date. If
current tax bills are unavailable at the Closing Date, the prior year's tax
bills shall be used for proration purposes and when the current year's tax bills
are received, the proration shall be recalculated and the appropriate payment
shall be made forthwith.
Article III. THE CLOSING. The closing (the "Closing") of the transactions
contemplated by this Agreement shall take place at the offices of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the third
business day after all of the conditions to each parties' obligations under
Articles VII and VIII have been satisfied or waived, or at such time and place
as shall be mutually agreed to by the parties (the "Closing Date").
Article IV. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Buyer and SPACEHAB as follows:
Section 4.1 Seller's Organization, Good Standing, Capitalization. Seller is
a limited partnership, duly organized, validly existing and in good standing
under the laws of the State of Delaware. Seller has all requisite power and
authority to carry on its business as it is now being conducted, and is duly
qualified to do business as a foreign entity and is in good standing in each
jurisdiction in which such qualification is necessary under applicable law with
respect to the Business, except where the failure to be so qualified would not
have a material adverse effect on the Assets, the Business, the Assumed
Liabilities or the condition (financial or otherwise), the earnings or prospects
of Seller, taken as a whole (a "Material Adverse Effect").
Section 4.2 Authority; Execution; Delivery. Seller has full power and
authority to enter into this Agreement, including all Schedules and Exhibits
hereto, and the other agreements, instruments, certificates and documents
required or contemplated hereby or thereby to be executed or delivered by it,
and to sell the Assets and the Business in accordance with the terms hereof so
as to vest in Buyer on the Closing Date good and marketable title to the Assets,
free and clear of any claim, lien, pledge, option, charge, security interest or
encumbrance of any nature whatsoever (collectively, "Liens"), except Permitted
Liens. The execution, delivery and performance of this Agreement by Seller,
including without limitation, the sales, conveyances, transfers and deliveries
contemplated hereby, have been duly and effectively authorized by all necessary
corporate or other organizational action. No other corporate or other
organizational proceedings on the part of Seller are necessary to authorize this
Agreement and the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Seller and constitutes (and any subleases and other
agreements contemplated hereby, including each of the instruments of conveyance
and transfer contemplated by Section 8.3 hereof, when duly executed and
delivered by Seller will constitute) the legal, valid and binding obligations of
Seller, enforceable against Seller in accordance with their respective terms,
except as enforcement thereof may be limited by bankruptcy, insolvency, or other
similar laws affecting the enforcement of creditors rights in general,
moratorium laws or by general principles of equity.
Section 4.3 Consents; No Violation, Etc. (a) Except as reflected in
Schedule 4.3(a), no authorization, consent, approval, license, exemption by
filing or registration with any court, arbitrator or governmental,
administrative or self-regulatory authority, is or will be necessary in
connection with the entry into, execution, delivery and performance of this
Agreement or any of the documents relating to the transactions contemplated
hereunder by Seller, or for the consummation of the transactions contemplated
hereby and thereby.
(b) Except as set forth on Schedule 4.3(b) hereto, neither the execution
and delivery of this Agreement, the other agreements contemplated hereby, the
consummation of the transactions contemplated herein or therein, nor compliance
by Seller with any of the provisions hereof or thereof will (with or without the
giving of notice or the passage of time) (i) violate, conflict with, result in a
breach of, constitute a default under, or result in the creation of any Lien
upon the Assets, under any of the terms, conditions or provisions of (A) the
certificate of limited partnership and agreement of limited partnership of
Seller, (B) any note, bond, mortgage, indenture, deed of trust, or any license,
agreement, or any other instrument or obligation to which Seller is a party, or
by which Seller or any of Seller's assets or properties may be bound or
affected, (ii) violate any judgment, order, writ, injunction, decree, statute,
law, rule or regulation applicable to Seller or any of Seller's assets or
properties or (iii) affect any Permit transferable to Buyer (as defined herein)
that is required for the conduct of the Business or that is required of any
employee or agent of Seller to enable him to carry out his duties on behalf of
Seller pursuant to the terms of any such Permit, except in each case insofar as
any such violation, conflict, breach, default, acceleration, termination,
cancellation, creation of Lien, failure to obtain any consent, approval,
permission or other authorization, qualification or filing, or impairment of any
Permit would not have with respect to clauses (i)(B), (ii) and (iii) a Material
Adverse Effect.
Section 4.4 No Other Agreements to Sell the Assets or the Business. Seller
has no legal obligation, absolute or contingent, to any other person or firm to
sell the Assets or the Business, to issue or sell any partnership interest or
any security convertible into or exchangeable for a partnership interest of
Seller, or to effect any merger, consolidation or other reorganization, directly
or indirectly, of Seller or to enter into any agreement with respect to the
foregoing.
Section 4.5 Financial Statements. Attached hereto as Schedule 4.5 are the
financial statements of Seller at and for the fiscal years ended December 31,
1994, 1995 and 1996, collectively, the "Financial Statements"). Except as
disclosed on, Schedule 4.5, such Financial Statements (a) have been prepared in
accordance with the books and records of Seller; (b) have been prepared in
accordance with GAAP consistently applied throughout the period covered thereby;
(c) fairly present the financial condition and results of operations of the
Business as of the date thereof and for the period covered therein; and (d)
contain and reflect all necessary adjustments and accruals, subject to normal
year-end adjustments, for a fair presentation of the financial condition and the
results of operations of the Business as of the date thereof and for the period
covered by such Financial Statements. The balance sheet at the Balance Sheet
Date, as adjusted, is herein referred to as the "Reference Balance Sheet" and is
set forth as Exhibit A hereto.
Section 4.6 Absence of Undisclosed Liabilities and Obligations. To the best
of Seller's knowledge after due inquiry, neither the Seller nor the Business has
any liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) other than (a) liabilities reflected or reserved
against in the Financial Statements and (b) liabilities and obligations
specifically disclosed on a Schedule hereto.
Section 4.7 Absence of Certain Changes or Events. Except as disclosed on
Schedule 4.7 hereto, since the Balance Sheet Date, there has not been any:
(a) change in the Business which has or is reasonably likely to result in a
Material Adverse Effect;
(b) change in the partnership interests outstanding, issuance of any
security convertible into partnership interests or any declaration, setting
aside, or payment of any dividend or other distribution (whether in cash,
securities, property or otherwise) in respect of Seller's partnership interests;
(c) increase in the compensation payable or to become payable by Seller in
connection with the Business to any of its current or former officers,
directors, employees, consultants or agents (collectively, the "Personnel") or
any increase of general applicability in the compensation payable to Personnel
(other than pursuant to existing corporate policies, practices and procedures
described on Schedule 4.17 hereto and as in effect on the Balance Sheet Date),
or any amendment to any Employee Plan or the adoption of any new Employee Plan
that would increase the benefits or rights of company Personnel participating
under such Plans;
(d) significant labor trouble or any material controversy or unsettled
grievance pending or, to the best of Seller's knowledge, threatened between
Seller and any Personnel or a collective bargaining organization representing or
seeking to represent Personnel;
(e) mortgage, pledge or subjection to any Lien of any Asset except a
Permitted Lien;
(f) sale, assignment or transfer of any material Asset or any conducting of
business other than in the ordinary course;
(g) waiver of any material rights of Seller with respect to the Business
whether or not in the ordinary course of business;
(h) cancellation, termination or entering into of, or modification to, any
material Contract;
(i) material liability or loss incurred with respect to any of the Assets
or the operation of the Business, except liabilities incurred in the ordinary
course of business consistent with past practice;
(j) any capital expenditure or execution of any lease with respect to any
of the Assets or any aspect of the Business, or any incurring of liability
therefor, requiring any payment or payments in excess of $10,000 individually or
$250,000 in the aggregate;
(k) borrowing or lending of money by or pledging the credit of the Business
or guaranteeing of any indebtedness of others by the Business;
(l) failure to operate the Business in the ordinary course so as to
preserve the Business intact, to keep available to Buyer the services of the
Personnel, and to preserve for Buyer the goodwill of the Business's suppliers,
customers and others having business relations with it;
(m) loss of service of any Personnel that is or are material, individually
or in the aggregate, to the conduct of the Business;
(n) material change in accounting practice of Seller with respect to the
Business, except as required by GAAP;
(o) material cancellations by any supplier, customer or contractor with
respect to any of the Assets or the Business;
(p) any agreement, arrangement or understanding by Seller to do any of the
foregoing.
Section 4.8 Taxes. (a) For purposes of this Agreement, the term "Tax" means
any net or gross income, gross receipts, sales, use, rental, value added, ad
valorem, transfer, turnover, franchise, profits, license, withholding, payroll,
employment, excise, capital, severance, stamp, occupation, premium, property or
windfall profits tax, alternative or add-on minimum tax, customs, duty or other
tax, fee, assessment or charge of any kind whatsoever, together with any
interest and any penalty, fine, addition to tax or additional amount imposed by
any governmental department, court or other authority, whether domestic or
foreign.
(b) For purposes of this Agreement, the term "Tax Return" means any report,
return, declaration, statement, form, extension or other document filed or
required to be filed with any federal, state, local or other governmental
department, court or other authority in respect of Taxes.
(c) Except as set forth on Schedule 4.8(c), all Tax Returns required to be
filed on or before the Closing Date by or on behalf of Seller have been or will
be timely filed on or before the Closing Date. All such Tax Returns were (or to
the extent not yet filed will be) true, complete and correct in all material
respects and filed on a timely basis.
(d) Seller has, within the time and the manner prescribed by law, paid (and
until the Closing Date will pay within the time and in the manner prescribed by
law) all Taxes required to be paid by it.
(e) Seller has complied (and until the Closing Date will comply) in all
material respects with the provisions of the Code relating to the payment and
withholding of Taxes, including without limitation, the withholding and
reporting requirements under Sections 1441 through 1464, 3401 through 3406, and
6041 and 6049 of the Code, as well as similar provisions under any other laws,
and has, within the time and in the manner prescribed by law, withheld from
employee wages and paid over to the proper governmental authorities all amounts
required to be so paid.
(f) Seller has not waived any statute of limitations in respect of Taxes or
agreed to any extension of time with respect to a Tax assessment or deficiency
and there are no outstanding deficiencies, assessments, or written proposals for
the assessment of any amount of Taxes proposed, asserted or assessed against
Seller. All deficiencies proposed as a result of any audit currently being
conducted with respect to Seller have been paid, reserved against, settled, or,
as described in Schedule 4.8(f), are being contested in good faith by
appropriate proceedings.
(g) Seller has established (and until the Closing Date will maintain) on
its books and records reserves adequate to pay all Taxes attributable to periods
prior to the Closing Date and not yet due and payable in accordance with GAAP.
(h) True, correct and complete copies of all Tax Returns filed with respect
to sales, use, rental, value added, turnover, transfer, real property or similar
taxes during the three year period ending on the date hereof have been delivered
to Buyer. Except as set forth on Schedule 4.8(h), Seller does not file
franchise, income or other Tax Returns in any jurisdiction based upon the
ownership or use of its property therein or its derivation of income therefrom.
(i) There are no Liens for Taxes (other than for current Taxes not yet due
and payable) on the Assets.
(j) None of the Assets is property that is required to be treated as being
owned by any other person pursuant to the safe harbor lease provisions of former
Section 168(f)(8) of the Code.
(k) None of the Assets directly or indirectly secures any debt the interest
on which is tax-exempt under Section 103(a) of the Code.
(l) None of the Assets is "tax-exempt use property" within the meaning of
Section 168(h) of the Code.
(m) Seller is not a party to any contract or agreement or other arrangement
that, separately or in the aggregate, could give rise to the payment of any
"excess parachute payment" within the meaning of Section 280G of the Code.
Section 4.9 Accounts Receivable. Except as set forth on Schedule 4.9, the
Accounts Receivable of the Business arose out of the sale of services in the
ordinary course of the Business, have been billed or invoiced in the ordinary
course of the Business in accordance with all applicable laws, regulations and
administrative rulings and procedures, represent bona fide indebtedness of the
applicable account debtor not subject to defense, set-off or counterclaim and
are collectible in full, net of the reserves set forth in the books of the
Seller.
Section 4.10 Copies of Documents. Seller has previously delivered to Buyer
true and complete copies of (or, in the case of any oral agreements or
arrangements, true and complete written summaries thereof):
(a) all deeds, Real Property Leases and Contracts listed, described or
referred to in Schedule 4.19;
(b) (i) copies of all Employee Plans, or in the case of an unwritten plan,
a written description thereof, and (ii) copies of all summary plan descriptions
and other material employee communications relating to such Employee Plans,
listed, described or referred to in Schedule 4.16(a);
(c) list of insurance contracts relating to and written descriptions
(including summary plan descriptions) or policies for the Employee Plans listed
in Schedule 4.16(a);
(d) all registrations, grants, applications, contracts and other materials
included in the Intellectual Properties listed in Schedule 4.12;
(e) all material Permits, including without limitation, those items set
forth in Schedule 4.10(e);
(f) the certificate of limited partnership and agreement of limited
partnership (or similar organizational documents) of Seller (certified by its
General Partner) as in full force and effect as of the date hereof and copies of
the minute books of the foregoing;
(g) copies of all environmental reports or studies prepared by Seller, its
agents, employees or representatives, or by third parties commissioned by or for
Seller, or any other environmental report in Seller's possession relating to the
Business; and
(h) copies of all written results of any examinations of the Business by
any governmental agency, whether federal, state or local, in the past five
years.
Section 4.11 Tangible Properties. (a) An asset register of the Seller as of
a recent date along with a list of all Real Property is set forth on Schedule
4.11 hereto. Seller has good and marketable title (and with respect to all owned
real property, fee simple title) to all the Assets, free and clear of Liens,
except for (i) the lien of current real and personal property taxes which are
not yet due and payable, (ii) such covenants, restrictions, encroachments,
easements and Liens, if any, as do not detract from the value, or interfere with
the present occupancy or use, of any of the Assets or otherwise materially
impair the operations of the Business and (iii) the items set forth on Schedule
4.11(a) hereto ("Permitted Liens"). Seller possesses and quietly enjoys all
premises owned or leased by it, and such premises are not subject to any Liens,
easements, rights-of-way, building use or occupancy restrictions, exceptions,
reservations or limitations that in any material respect interfere with or
impair the present and continued use thereof in the usual and normal conduct of
the Business. All Real Property owned by Seller complies in all material
respects with any applicable zoning regulation, ordinance or other law, order,
regulation or requirement relating to the occupancy and operations thereof and,
to the best of Seller's knowledge, each of the premises leased by Seller
complies in all material respects with all such applicable regulations or laws.
Seller has not received notice of any pending or threatened condemnation
proceedings relating to Seller's owned or leased properties and, so far as known
to Seller, there are no such pending or threatened proceedings.
(b) Except as set forth on Schedule 4.11(b) hereto, the plants, structures,
tangible properties and equipment owned, operated or leased by Seller are in
good operating condition and repair (ordinary wear and tear, excepted), and are
in conformity in all material respects with all applicable laws, ordinances,
orders, regulations and other requirements (including applicable zoning,
environmental, occupational safety and health laws and regulations) presently in
effect or, to Seller's knowledge, presently scheduled to take effect.
Section 4.12 Intellectual Property. (a) All domestic and foreign patents,
patent applications, trademarks, trademark registrations, servicemarks, trade
names, registered copyrights and licenses with respect to the foregoing, owned
in whole or in part, related to or used by Seller and that relate to and are
used by the Business are set forth on Schedule 4.12(a). Except as set forth on
Schedule 4.12(b), Seller is the sole and exclusive owner of the Intellectual
Property, and the Seller is listed in the records of the appropriate U.S. and
foreign governmental agency as the sole and exclusive owner of record for each
registration, grant and application listed in Schedule 4.12(a) which is so
registered, granted or for which an application has been filed.
(b) All registration and maintenance fees that have become due and payable
in respect of any grant or registration of any Intellectual Property have been
paid and no act has been done or omitted to be done by Seller, or any licensee
thereof or any holder of any rights with respect thereto, to impair or dedicate
to the public or entitle any U.S. or foreign governmental authority or any other
Person to cancel, forfeit, modify or consider abandoned any Intellectual
Property, or to give any Person any rights with respect thereto, and all of
Seller's rights in the Intellectual Property are valid, enforceable and free of
defects. Seller has no knowledge of any facts or claims which cause or might
cause any patent to be invalid or unenforceable, and Seller has not received any
notice of an intention on the part of any Person to assert such a claim. Except
as set forth on Schedule 4.12(b), Seller owns or otherwise has the right to use
any and all Intellectual Property that is used in or is necessary for the
conduct of its Business free and clear of any Lien, royalty or other payment
obligations.
(c) Neither Seller nor the Business as currently conducted, is in conflict
with or in violation or infringement of, nor has the Seller received any notice
of any conflict with or violation or infringement of, nor are proceedings or
claims pending, nor have any such proceedings or claims been instituted or
asserted in writing against the Seller, nor are any proceedings threatened,
alleging any violation, nor is there any valid basis for any such proceeding or
claim, of any rights or asserted rights of any other Person with respect to any
Intellectual Property of such other Person.
(d) Except as set forth on Schedule 4.12(d), no proceedings or claims in
which Seller alleges that any Person is infringing upon, or otherwise violating,
any of the Intellectual Property are pending, and none have been served by,
instituted or asserted by Seller, nor are any proceedings threatened alleging
any such violation or infringement, nor does Seller know of any valid basis for
any such proceeding or claim.
(e) The Seller has taken all actions consistent with standard practice in
its industry to preserve and maintain its Intellectual Property relating to the
Business.
Section 4.13 Assets. The Assets represent all of the Real and Personal
Property, Real Property Leases, Intellectual Property, Permits, Contracts,
Future Contracts, Claims or other agreements, assets or rights that are
necessary for the operation of the Business as now operated. Seller is the
lawful owner of or has the right to use and shall at Closing have the right to
transfer to Buyer each of the Assets. The delivery to Buyer of the instruments
of transfer of ownership contemplated by this Agreement will vest good and
marketable title to the Assets in Buyer on the Closing Date, free and clear of
all Liens, other than Permitted Liens.
Section 4.14 Insurance. All policies of insurance are in force with respect
to Seller including policy numbers, names, expiration dates, descriptions and
amounts of coverage and annual premiums as of the Balance Sheet Date (or
renewals thereof), are set forth in Schedule 4.14 and are outstanding and duly
in force on the date hereof. Such policies are in the amounts shown in Schedule
4.14 and insure against such losses and risks as are adequate in accordance with
customary industry practice to protect the Assets and the Business, subject to
Seller's self-insurance retention levels. Seller has not received notice from
any insurer or agent of such insurer that substantial capital improvements or
other expenditures will have to be made in order to continue such insurance and,
so far as known to Seller, no such improvements or expenditures are required.
Section 4.15 Employment Matters. Except as set forth on Schedule 4.15
hereto, with respect to the Personnel, (i) there are no pending claims by any
current or former Personnel against Seller other than for compensation and
benefits due in the ordinary course of employment; (ii) there are no pending
claims against Seller arising out of any statute, ordinance or regulation
relating to employment practices or occupational or safety and health standards;
(iii) there are no pending or, to the best knowledge of Seller, threatened labor
disputes, strikes or work stoppages against Seller; and (iv) to the best
knowledge of Seller, there are no union organizing activities in process or
contemplated with respect to the Business. Schedule 4.15 identifies all
collective bargaining units, if any, which have been certified or recognized by
Seller with respect to the Personnel, and Buyer has been supplied with all
collective bargaining agreements, if any, covering Seller's employees. Schedule
4.15 also identifies all employees on leave of absence and all current or former
employees and their dependents receiving health benefits, or eligible to receive
health benefits, as required by COBRA. Notice of the availability of health care
continuation coverage for employees of Seller, former employees of Seller and
their dependents, or any qualified beneficiary of such employees, in accordance
with the requirements of COBRA ("COBRA Coverage"), has been provided to all
persons entitled thereto, and all persons electing such coverage are being (or
have been, if applicable) provided such coverage.
Section 4.16 Employee Benefit Plans. A list of all employee profit-sharing,
incentive, deferred compensation, welfare, pension, retirement, group insurance,
bonus, severance and other employee benefit plans, arrangements or agreements
(oral or written), regardless of whether any such plan, arrangement or agreement
is an "employee benefit plan" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), maintained or
previously maintained or contributed to or previously contributed to by Seller
or Parent for the benefit of current or former Personnel ("Employee Plans") is
set forth on Schedule 4.16(a).
(a) The Employee Plans by their terms and operation are in material
compliance with all applicable laws (including, but not limited to, ERISA and
the Code). There are no actions, suits or claims pending or threatened (other
than routine noncontested claims for benefits) or, to Seller's or Parent's
knowledge, no set of circumstances exist which may reasonably give rise to such
a claim against any Employee Plan or administrator or fiduciary of any such
Employee Plan.
(b) Except as disclosed on Schedule 4.16(b), neither Seller nor any entity
that is or was at any time treated as a single employer with Seller under
Section 414(b), (c), (m) or (o) of the Code has at any time (i) maintained,
contributed to or been required to contribute to any plan under which more than
one employer makes contributions (within the meaning of Section 4064(a) of
ERISA) or any plan that is a multiemployer plan (within the meaning of Section
3(37) of ERISA), (ii) incurred or expects to incur any liability to the Pension
Benefit Guaranty Corporation or otherwise under Title IV of ERISA or (iii)
incurred or expects to incur liability in connection with an "accumulated
funding deficiency" within the meaning of Section 412 of the Code, whether or
not waived.
(c) Buyer will have no liability for the following items (i) through (iv),
regardless of whether the events contemplated by this Agreement (either alone or
together with any other event) (i) entitle any current or former Personnel to
severance pay, unemployment compensation, or other similar payments under any
Employee Plan or law, (ii) accelerate the time of payment or vesting or increase
the amount of benefits due under any Employee Plan or compensation to any
current or former Personnel, (iii) result in any payments (including parachute
payments) under any Employee Plan or law becoming due to any current or former
Personnel, or (iv) terminate or modify or give a third party a right to
terminate or modify the provisions or terms of any Employee Plan.
(d) To the extent applicable, Seller has complied with the Worker
Adjustment and Retraining Notification Act, as amended ("WARN").
(e) The names and current annual rates of compensation of all Personnel,
together with a summary (containing estimates to the extent necessary) of
bonuses, additional compensation (whether current or deferred) and other like
benefits, if any, paid or payable to such persons in the fiscal year ended
December 31, 1996, or subsequent thereto are set forth on Schedule 4.16(e).
Section 4.17 Litigation. Except as disclosed on Schedule 4.17 hereto, there
is neither (a) any litigation, proceeding, arbitral action or government
investigation pending or, so far as known to Seller, threatened against,
relating to or affecting (i) the Business or the Assets, (ii) any Employee Plan
or any fiduciary or administrator thereof, (iii) Personnel in reference to
actions taken by them in such capacities or (iv) the transactions contemplated
by this Agreement, nor (b) any valid basis known to Seller for any such
litigation, proceeding or investigation which if adversely determined could, in
any one case or in the aggregate, have a Material Adverse Effect. There are no
decrees, injunctions or orders of any court or governmental department or agency
outstanding against Seller with respect to the Business or the Assets.
Section 4.18 Compliance with Laws. (a) Seller has and, to the knowledge of
Seller, all Personnel have complied in all material respects with all applicable
statutes, regulations, rules, orders, ordinances and other laws ("Laws") of the
United States of America, all state, local and foreign governments and other
governmental bodies and authorities, and agencies of any of the foregoing
("Governmental Authority") to which they are subject with respect to regulatory
matters. Seller has maintained all records required to be maintained by all
governmental authorities and there are no presently existing circumstances known
to Seller after due inquiry which would result or would be likely to result in
violations of any such Laws.
(b) Seller is and, to the knowledge of Seller, all Personnel are, in
compliance with all applicable statutes, laws, ordinances, rules, orders and
regulations of any Governmental Authority (including, without limitation,
Environmental Laws (as such term is hereinafter defined in Section 4.24)
applicable to the Business), except to the extent noncompliance would not have a
Material Adverse Effect. Except as set forth on Schedule 4.18(b), Seller has not
received any notice or other communication to the effect that, or otherwise been
advised that, they are not in compliance with any of such Laws, and Seller has
no reason to anticipate that any presently existing circumstances are likely to
result in violations of any such Laws which could, in any one case or in the
aggregate, have a Material Adverse Effect. To the best of Seller's knowledge,
there is not presently pending any proceeding, hearing or investigation with
respect to the adoption of amendments or modifications to existing laws or
ordinances, regulations or restrictions which, if adopted, could, in any one
case or in the aggregate, have a Material Adverse Effect on the Business or the
Assets taken as a whole.
(c) Seller has not made, and, to the knowledge of Seller, no Personnel or
representative of Seller or any person acting on behalf of Seller has made,
directly or indirectly with respect to the Business, any bribes, kickbacks, or
other illegal payments or illegal political contributions, illegal payments from
corporate funds to governmental officials in their individual capacities, or
illegal payments from corporate funds to obtain or retain business either within
the United States or abroad.
Section 4.19 Validity of Leases and Contracts. Each Real Property Lease and
Contract of Seller is listed on Schedule 4.19 hereto. Except as disclosed on
Schedule 4.19, each Real Property Lease or Contract pursuant to which Seller
leases real or personal property and each other Contract or Future Contract, is
valid and enforceable in accordance with its terms and Seller is not in default
under any material provision of any such lease or contract. To the best of
Seller's knowledge, upon Buyer's assumption of the lessee's or obligor's
liability thereunder, each such lease (or sublease) and each such contract as is
assigned at the Closing will be valid and binding and enforceable by Buyer in
accordance with its terms. To the best of Seller's knowledge, any party from
whom Seller leases real or personal property included in the Assets and any
party which is a party to any Contract or Future Contract, is not, and will not
be with due notice or lapse of time or both, in material default under any
provision of any such lease, agreement or contract or commitment.
Section 4.20 No Brokers. Seller has not entered into and will not enter
into any agreement, arrangement or understanding with any person or firm which
will result in the obligation of Buyer to pay any finder's fee, brokerage
commission or similar payment in connection with the transactions contemplated
hereby or any other transaction.
Section 4.21 Transactions with Certain Persons. Except as disclosed on
Schedule 4.21 hereto, no affiliate, shareholder, officer, director, employee or
agent of Seller, or member of his or her immediate family is presently a party
to any material transaction with Seller relating to the Assets or the Business,
including, without limitation, any contract, agreement or other arrangement (a)
providing for the furnishing of services by, (b) providing for the rental of
real or personal property from, or (c) otherwise requiring payments to (other
than services as officers, directors or employees) any such person or entity in
which any such person has a substantial interest as a shareholder, officer,
director, trustee, member partner or similar status.
Section 4.22 Records. The Records of Seller relating to the Assets and the
Business have been maintained in all material respects in accordance with good
business practices and as applicable, in accordance with GAAP consistently
applied. The minute books of the Seller are correct, complete and current in all
material respects.
Section 4.23 Warranties. The terms of any warranties relating to the
services provided by the Business are set forth on Schedule 4.23. Except as set
forth on Schedule 4.23, Seller has not made any express warranties with respect
to services provided by the Business and, to the best of Seller's knowledge, no
other warranties have been made by Personnel.
Section 4.24 Environmental Matters. (a) Except as described on Schedule
4.24 hereto, no substance defined as or subject to regulation as hazardous
substances, hazardous or toxic pollutants or hazardous wastes, in or pursuant to
any of the Clean Air Act, the Clean Water Act, the Resource Conservation and
Recovery Act of 1976, the Hazardous Materials Transportation Act, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Emergency Planning and Community Right-to-Know Act or in any
other federal, state or local environmental law in effect on the Closing Date
(collectively, "Environmental Laws"), including, irrespective of inclusion or
exclusion from any of the aformentioned categories, crude oil or any substances
derived from the fractional distillation of crude oil, polychlorinated
biphenyls, asbestos- containing material, radioactive materials, pesticides, and
any pharmaceutical products that exhibit any characteristics that would render
such products a regulated hazardous waste if a waste (all of the above being
collectively referred to herein as "Hazardous Materials") have been or are
stored, treated, disposed of, managed, generated, manufactured, produced,
released (as defined in CERCLA Section 101(22)), emitted or discharged on, to,
in, under or from the real property owned or leased by Seller relating to the
Assets or the Business or disposed of at a location owned or operated by a third
party pursuant to an arrangement for disposal.
(b) Except as set forth on Schedule 4.24, Seller is in compliance in all
material respects with all Environmental Laws and has obtained all environmental
licenses, permits, approvals, registrations and authorizations (federal, state
and local) material to the Business. Except as set forth on Schedule 4.24, all
such licenses, permits, approvals, registrations and authorizations will remain
in full force and effect as of the Closing and may be effectively transferred or
assigned to Buyer on or after the Closing Date without materially and adversely
affecting the operation of Buyer's business or the operation by Buyer of the
Business after the Closing.
(c) Except as set forth on Schedule 4.24, no governmental or private
action, suit or proceeding to enforce or impose liability under any
Environmental Laws is pending or, to the best of Seller's knowledge, threatened
against Seller and, to the best of Seller's knowledge, no Lien has been created
on any real property owned or leased by Seller relating to the Assets of the
Business, under any Environmental Laws.
Section 4.25 Suppliers, Distributors and Customers. Except as disclosed on
Schedule 4.25, no supplier, distributor, broker, customer or other person having
a business relationship with the Business has cancelled or otherwise terminated
or to the knowledge of Seller, threatened to cancel or otherwise terminate its
relationship with Seller or has during the past 12-month period decreased
materially (in amount or dollar volume) or, to the knowledge of Seller,
threatened to decrease materially, its services, supplies or materials to Seller
or its usage of the products or services now being produced or provided by or to
Seller. Seller has no knowledge that any such supplier, distributor and/or
broker or customer intends to decrease materially its services, supplies or
materials to Seller or its usage of the products or services now being produced
or provided by or to Seller.
Section 4.26 Investments. Except as described on Schedule 4.26, Seller does
not own any capital stock, partnership interests or other equity interests in
any corporation, partnership, joint venture, trust or other business
association.
Section 4.27 Exclusive Representations and Warranties. Other than the
representations and warranties set forth herein, Seller is not making any other
representation or warranty, express or implied, with respect to the Business or
the Assets.
Article V. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent hereby
represents and warrants to Buyer and SPACEHAB as follows:
Section 5.1 Parent's Organization, Good Standing, Capitalization. Parent is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Parent has all requisite power and authority to
carry on its business as it is now being conducted, and is duly qualified to do
business as a foreign entity and is in good standing in each jurisdiction in
which such qualification is necessary under applicable law with respect to the
Business, except where the failure to be so qualified would not have a material
adverse effect on the Assets, the Business, the Assumed Liabilities or the
condition (financial or otherwise), the earnings or prospects of Seller, taken
as a whole (a "Material Adverse Effect").
Section 5.2 Authority; Execution; Delivery; Ownership of Seller. Parent has
full power and authority to enter into this Agreement, including all Schedules
and Exhibits hereto, and any other agreements, instruments, certificates and
documents required or contemplated hereby or thereby to be executed or delivered
by it, and to sell the Assets and the Business in accordance with the terms
hereof so as to vest in Buyer on the Closing Date good and marketable title to
the Assets, free and clear of any Liens, except Permitted Liens. The execution,
delivery and performance of this Agreement by Parent have been duly and
effectively authorized by all necessary corporate or other organizational
action. No other corporate or other organizational proceedings on the part of
Parent are necessary to authorize this Agreement and the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Parent and constitutes the legal, valid and binding obligations of Parent,
enforceable against Parent in accordance with their respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or other similar
laws affecting the enforcement of creditors rights in general, moratorium laws
or by general principles of equity. The Parent owns all of the securities of
Seller.
Section 5.3 Consents; No Violation, Etc. (a) Except as reflected in
Schedule 5.3(a), no authorization, consent, approval, license, exemption by
filing or registration with any court, arbitrator or governmental,
administrative or self-regulatory authority, is or will be necessary in
connection with the entry into, execution, delivery and performance of this
Agreement or any of the documents relating to the transactions contemplated
hereunder by Parent, or for the consummation of the transactions contemplated
hereby and thereby.
(b) Except as set forth on Schedule 5.3(b) hereto, neither the execution
and delivery of this Agreement, the other agreements contemplated hereby, the
consummation of the transactions contemplated herein or therein, nor compliance
by Parent with any of the provisions hereof or thereof will (with or without the
giving of notice or the passage of time) (i) violate, conflict with, result in a
breach of, constitute a default under, or result in the creation of any Lien
upon the Assets, under any of the terms, conditions or provisions of (A) any
resolution adopted by the Board of Directors of Parent or (B) any note, bond,
mortgage, indenture, deed of trust, or any license, agreement, or any other
instrument or obligation to which Parent is a party, or by which Parent may be
bound or affected or (ii) violate any judgment, order, writ, injunction, decree,
statute, law, rule or regulation applicable to Parent, except in each case
insofar as any such violation, conflict, breach, default, acceleration,
termination, cancellation, creation of Lien, failure to obtain any consent,
approval, permission or other authorization, qualification or filing would not
have with respect to clauses (i)(B) and (ii) a Material Adverse Effect.
Section 5.4 No Other Agreements to Sell the Assets or the Business. Parent
has no legal obligation, absolute or contingent, to any other person or firm to
sell the Assets or the Business, to issue or sell any partnership interest or
any security convertible into or exchangeable for a partnership interest of
Seller, or to effect any merger, consolidation or other reorganization, directly
or indirectly, of Seller or to enter into any agreement with respect to the
foregoing.
Section 5.5 Employee Benefit Plans. Buyer will have no liability for the
following items (i) through (iv), regardless of whether the events contemplated
by this Agreement (either alone or together with any other event) (i) entitle
any current or former Personnel to severance pay, unemployment compensation, or
other similar payments under any Employee Plan or law, (ii) accelerate the time
of payment or vesting or increase the amount of benefits due under any Employee
Plan or compensation to any current or former Personnel, (iii) result in any
payments (including parachute payments) under any Employee Plan or law becoming
due to any current or former Personnel, or (iv) terminate or modify or give a
third party a right to terminate or modify the provisions or terms of any
Employee Plan.
Article VI. REPRESENTATIONS AND WARRANTIES OF BUYER AND SPACEHAB. Buyer and
SPACEHAB hereby jointly and severally represent and warrant to Seller and Parent
as follows:
Section 6.1 Buyer's Organization and Good Standing. SPACEHAB and Buyer are
corporations duly organized, validly existing and in good standing under the
laws of the States of Washington and Delaware, respectively, and each has all
requisite corporate power to carry on its business as it is now being conducted.
Section 6.2 Authority; Execution and Delivery. Each of SPACEHAB and Buyer
has full corporate power and authority to enter into this Agreement and to
purchase the Assets, in accordance with the terms hereof. The execution,
delivery and performance of this Agreement and the other agreements contemplated
hereby by Buyer and SPACEHAB, have been duly and effectively authorized by the
Board of Directors of Buyer and SPACEHAB. No other corporate proceedings on the
part of Buyer and SPACEHAB are necessary to authorize this Agreement and the
transactions contemplated herein or therein. This Agreement has been duly
executed and delivered by Buyer and SPACEHAB and constitutes (and the other
agreements when duly executed and delivered or contemplated hereby will
constitute) the legal, valid and binding obligations of Buyer or SPACEHAB, as
the case may be, enforceable against them, in accordance with their respective
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
or other similar laws affecting the enforcement of creditors' rights in general,
moratorium laws or by general principles of equity.
Section 6.3 No Brokers. Neither Buyer nor SPACEHAB has entered into and
neither will enter into any agreement, arrangement or understanding with any
person or firm which will result in the obligation of Seller or Parent to pay
any finder's fee, brokerage commission or similar payment in connection with the
transactions contemplated hereby.
Section 6.4 Consents, No Conflicts, Etc. Neither the execution and delivery
of this Agreement, the consummation by Buyer or SPACEHAB of the transactions
contemplated herein nor compliance by Buyer or SPACEHAB with any of the
provisions hereof will (with or without the giving of notice or the passage of
time) (i) violate or conflict with any provision of the certificate of
incorporation or by-laws or similar organizational documents of Buyer or
SPACEHAB, (ii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Buyer or SPACEHAB or any of their respective assets or
properties or (iii) require the consent, approval, permission or other
authorization of or by or filing or qualification with any court, arbitrator or
governmental, administrative, or self-regulatory authority.
Article VII. CERTAIN COVENANTS AND AGREEMENTS.
Section 7.1 Non-Competition. (a) In consideration of the benefits to the
Seller and Parent hereunder and in order to induce Buyer to enter into this
Agreement, Seller and Parent will not, for a period of seven (7) years from the
Closing Date (the "Non-Competition Period"), except as set forth in Section
7.1(b) hereof, directly or indirectly, (i) engage or hold an interest in any
business (whether by ownership of debt or equity) providing satellite payload
processing facilities and related services to commercial customers (the
"Proscribed Business") or, (ii) have any interest in, own, manage, operate,
control, direct, be connected with as a stockholder (other than as a stockholder
of less than five percent (5%) of the issued and outstanding stock of a
publicly-held corporation), joint venturer, partner or consultant, or otherwise
engage or invest or participate in, any business engaged in the Proscribed
Business, within a one-hundred (100) mile radius of (A) the ▇▇▇▇▇▇▇ Space
Center/Canaveral Air Force Station, Florida, (B) ▇▇▇▇▇▇▇▇▇▇ Air Force Base,
California, (C) NASA Wallops Island, Virginia or (D) Long Beach, California,
(iii) hire any person employed or otherwise retained by, or solicit or encourage
any person to leave the employ of, Buyer or SPACEHAB (including employees of
Seller working in the Business as of the date of this Agreement or as of the
Closing Date), except as agreed to in writing by SPACEHAB, or (iv) deal in a
competitive manner in the Proscribed Business vis-a-vis customers doing business
with the Business at any time during the Non-Competition Period.
(b) Notwithstanding Section 7.1(a), if during the Non-Competition Period
Parent shall acquire, directly or indirectly, any interest in any entity or
business engaged, in whole or in part, in the Proscribed Business then, within
one-hundred twenty (120) days of the consummation of such acquisition Parent
shall provide Buyer with the right to purchase such Proscribed Business at a
price and on terms and conditions set by Parent. If the right of first offer is
declined, then Parent shall within three-hundred sixty-five (365) days of the
consummation of such acquisition divest itself of the Proscribed Business, and
in connection therewith, Parent shall offer Buyer the right of first refusal to
match any proposed offer with respect to the sale by Parent of the Proscribed
Business.
Section 7.2 Non-Disclosure. Seller will not at any time from and after the
date of this Agreement divulge, furnish or make accessible to anyone any
knowledge or information with respect to Intellectual Properties, or other
confidential or secret aspects of the Business or any financial or other
information about Seller. Any information, which at or prior to the time of
disclosure was generally available to the public through no breach of this
covenant, shall not be deemed confidential information for purposes hereof, and
the undertakings in this covenant with respect to confidential information shall
not apply thereto.
Section 7.3 Further Assurances. From and after the Closing Date, from time
to time, at Buyer's request and without further consideration, Seller will
execute and deliver or cause to be executed and delivered such other instruments
and take such other actions as Buyer or its counsel may reasonably request to
more effectively convey, transfer to and vest in Buyer, and to put Buyer in
possession and operating control of all or any part of the Assets or the
Business.
Section 7.4 Access to Facilities; Due Diligence. (a) Between the date
hereof and the Closing Date, (i) authorized representatives of Buyer and
SPACEHAB shall have reasonable access to all properties, books, Records,
Contracts and other documents of Seller relating to the Business, (ii) Seller
will furnish to Buyer all information with respect to the Business that Buyer
may reasonably request, and (iii) Buyer and SPACEHAB shall have the right to
discuss the Business of Seller with the employees, suppliers and customers of
Seller; provided, however, that Buyer and SPACEHAB shall not contact any
employees, suppliers or customers of Seller unless Buyer and SPACEHAB receive
the prior authorization of Seller or Parent, which authority shall not be
unreasonably withheld or delayed.
(b) Parent shall, and shall cause Seller to, cooperate fully with SPACEHAB
and Buyer in the conduct of the environmental due diligence, audit or similar
review contemplated by Section 8.17(b) hereof. Without limiting the generality
of the foregoing, Parent shall, and shall cause Seller to, (i) give full and
complete access to SPACEHAB, Buyer and representatives of each, during normal
business hours and upon reasonable notice, to any and all Personal Property and
Real Property used in the Business and (ii) provide such assistance as SPACEHAB,
Buyer or such representatives reasonably request in connection with such due
diligence, audit or similar review. Buyer and SPACEHAB shall each use
commercially reasonable efforts to minimize, to the greatest extent practicable,
any interruption to the conduct of the Business in connection with such due
diligence, audit or similar review.
Section 7.5 Conduct of the Business. Seller shall, from the date hereof up
to and including the Closing Date, conduct the Business to be conducted only in
the ordinary course, consistent with past practice, and will not do, or cause to
be done, anything which is represented and warranted not to have been done in
this Agreement, except as otherwise expressly contemplated hereby. In addition,
Seller will, from and after the date hereof up to and including the Closing
Date, cause the Business to: (a) maintain in full force and effect the insurance
policies set forth on Schedule 4.14 (or policies providing substantially the
same coverage, copies of which will be made available to Buyer); (b) take such
action as may reasonably be necessary to preserve the assets and properties,
wherever located, which are material to the Business; (c) maintain its books and
records in accordance with sound accounting principles and in the manner
consistent with past practices and promptly advise Buyer in writing of any
material adverse change in the condition (financial or otherwise) of the assets,
liabilities, earnings, business or prospects of the Business; (d) maintain the
Assets in the same state of repair, order and condition as on the date hereof,
reasonable wear and tear or loss by insured or self-insured casualty excepted;
(e) maintain in full force and effect all Licenses and perform in all material
respects all obligations under any Contracts; (f) not permit (to the extent
within the control of the Seller) to occur any of the events or occurrences
described in Section 4.7 (Absence of Certain Changes or Events) of this
Agreement; or (g) not take any action that would prevent Seller from
consummating the transactions contemplated by this Agreement.
Section 7.6 Changes in Representations and Warranties. Between the date of
this Agreement and the Closing Date, Seller shall not, and Seller shall not
permit the Business to, enter into any transaction, take any action, or by
inaction permit an event to occur, which would result in any of the
representations and warranties of Seller herein contained not being true and
correct at and as of (a) the time immediately following the occurrence of such
transaction or event or (b) the Closing Date. Seller shall promptly give written
notice to Buyer upon becoming aware of (i) any fact which, if known on the date
hereof, would have been required to be set forth or disclosed pursuant to this
Agreement and (ii) any impending or threatened breach in any material respect of
any of the representations and warranties contained in this Agreement and with
respect to the latter shall use all reasonable efforts to remedy same. To the
extent that any information required to be disclosed by Seller pursuant to
clause (i) or (ii) of this Section 7.6 causes any schedule hereto to be
inaccurate or incomplete, Seller shall in each case promptly supplement or amend
the relevant portion of the applicable schedule hereto and provide such
supplemented or amended schedule to Buyer; provided, however, that such amended
or supplemented schedule shall not be taken into account for purposes of
determining compliance with Section 8.1 hereof.
Section 7.7 Mutual Cooperation. The parties hereto will cooperate with each
other, and will use all reasonable efforts to cause the fulfillment of the
conditions to the parties' obligations hereunder and to obtain as promptly as
possible all consents, authorizations, orders or approvals from each and every
third party, whether private or governmental, required in connection with the
transactions contemplated by this Agreement. Seller and Parent agree to provide
any necessary services and support that may be required to operate the Business
in the ordinary course, due to a failure to obtain at or prior to Closing any
necessary Permits or consents. Any such services and support shall be provided
at Seller's or Parent's cost (including reasonable and customary general and
administrative and overhead expenses) and for a period not to exceed six (6)
months from the Closing Date. For services rendered pursuant to this Section,
(i) Seller or Parent, as the case may be, shall provide Buyer with a written
statement covering each applicable 30-day period following the Closing Date,
indicating in detail the nature of the services provided and the costs
associated therewith and (ii) Buyer shall pay to Seller or Parent, as the case
may be, the specified amount within fifteen (15) days after receipt of the
statement by Buyer (less any disputed amount which Buyer and Seller or Parent,
as the case may be, shall diligently cooperate to resolve as soon as possible).
Section 7.8 No Mergers, Consolidations, Sales of Assets, Etc. Until the
termination of this Agreement pursuant to Article XIX hereof, neither Seller nor
Parent shall, or shall authorize or permit any officer, director or employee of,
or any investment banker, attorney, accountant or other representative retained
by, Seller or Parent to, (i) solicit or encourage (including by way of
furnishing non-public information) any inquiries or the making of any proposal
which constitutes, or may reasonably be expected to lead to, any "other
acquisition" or (ii) engage in any discussions or negotiations or enter into any
agreement with respect to any other acquisition. Seller shall promptly advise
Buyer orally and in writing of any such inquiries or proposals. As used in this
paragraph, "other acquisition" shall mean any transaction involving the
acquisition by a Person other than Buyer in any manner of all or substantially
all of the Assets or the Business of Seller.
Section 7.9 Access to Books and Records; Cooperation. (a) Seller shall
afford to Buyer and Buyer's auditing staff, accountants and other authorized
representatives and Buyer shall afford to Seller and such representatives, upon
reasonable notice, full access to the books and records of the Business not in
Buyer's or Seller's, as the case may be, possession pertaining to the Business's
operations prior to the Closing Date for a period of six years following the
Closing Date in connection with tax and accounting matters and other reasonable
business purposes; provided, that Seller shall not be entitled to any books,
records or other information deemed by Buyer to be confidential or competitively
sensitive. It is specifically understood that Buyer may wish to audit the
financial statements of the Business for periods prior to the Closing and that
Buyer shall be entitled access to Seller's auditor's work papers relating to the
Business for such periods. Seller shall give Buyer thirty (30) days' notice
prior to discarding or destroying any books, records or other documents of the
Business and, if so requested by Buyer, Seller shall deliver such books, records
or other documents to Buyer. Buyer shall reimburse Seller for all out-of-pocket
costs incurred in complying with this Section 7.9 other than with respect to the
storage of records.
(b) Following the Closing the parties shall cooperate with each other to
the extent reasonably necessary in the preparation, filing and audits of each
parties' income Tax Returns as they relate to the Business. In connection
therewith, each party shall, at the other's expense, make available to the other
such personnel as shall be reasonably requested (so as not to unreasonably
interfere with any party's business) to aid in the preparation and audits of
such Tax Returns.
Section 7.10 Consents. Seller shall, except as otherwise provided herein,
obtain, prior to the Closing Date, all consents, waivers or approvals to the
transactions contemplated by this Agreement or that may be required under any
law or under any of the Contracts, Real Property Leases, Future Contracts,
Permits, Claims, Intellectual Property or other Assets being sold, assigned to,
or assumed by Buyer under this Agreement. Buyer shall provide all reasonable
assistance to Seller in the processing of such consents, waivers and approvals.
To the extent required consents, waivers or approvals are not obtained prior to
Closing with respect to the transfer of any such items and Buyer shall have
waived such condition at Closing, then until such consents, waivers or approvals
are obtained, Buyer shall obtain the benefits and assume the obligations with
respect to such items in accordance with this Agreement by acting as
subcontractor, sublicensee or sublessee of Seller and Seller shall enforce for
the benefit of Buyer any and all rights of Seller against a third party with
respect to any such items and Seller shall promptly pay to Buyer any and all
monies received by Seller in connection with any such Contract, Real Property
Lease, Future Contract, Permit, Claim, or other Asset, and after the Closing,
Seller shall continue to use its best efforts to obtain a consent, waiver or
approval with respect to each of such items as may be required. In addition, in
the event that any Contract or other understanding which contains a
non-competition or non- disclosure provision in favor of the Business entered
into between Seller and any third party shall not be assignable to Buyer at
Closing, Seller hereby covenants and agrees to enforce at Buyer's request and in
accordance with Buyer's instructions and at Buyer's expense, the non-competition
or non-disclosure provisions of such Contract or understanding.
Section 7.11 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. Prior to the date of this Agreement,
Buyer and Seller have made their respective filings under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976 (the "H-S-R Act") with respect to the
transactions contemplated by this Agreement, and shall make any other required
submissions in connection therewith.
Section 7.12 Collection of Receivables. After the Closing Date, all cash,
checks or other proceeds received by Seller or any of its banks or other
financial institutions that relate to the accounts receivable of Seller
purchased by Buyer shall be paid to Buyer within ten (10) business days after
receipt by Seller, which payments shall be accompanied by a statement
identifying the payee, the amount of the payment and the related invoice number.
Seller shall give Buyer access to any and all lockboxes of Seller where payments
for accounts receivable are remitted, if any. Seller shall instruct its banks to
remit to Buyer all amounts received by such banks with respect to such accounts.
Seller agrees to endorse and Buyer shall have the right to endorse the name of
Seller on any such checks or proceeds (whether received directly by Buyer or
received from Seller or its bank) and shall deposit such checks and other
proceeds in bank accounts maintained in Buyer's name. From and after the Closing
Date, Seller shall cooperate with, and provide reasonable assistance to, Buyer
at Buyer's expense in collecting such accounts.
Section 7.13 Assignment of Receivables. If any Account Receivable sold,
transferred or assigned by Seller to Buyer under this Agreement is not collected
by Buyer within sixty (60) days after the Closing Date, Buyer may, at its
option, assign such Account Receivable to Seller, and Seller shall pay Buyer an
amount in cash equal to the account receivable so assigned within three (3)
business days after assignment by Buyer. Buyer shall employ commercially
reasonable standards in collecting the Accounts Receivable prior to assignment,
except that Buyer shall not be obligated to institute any legal proceedings for
collection. Any Account Receivable assigned to Seller by Buyer after such 60-day
period shall not be considered a breach of any representation or warranty
hereunder; provided, however, that Buyer shall accompany the assignment of the
uncollected Account Receivable with a certificate of a responsible officer of
Buyer certifying that Buyer did not take any unreasonable act or fail to act in
a reasonable manner such that Seller's ability to recover the Account Receivable
would be impaired. If Buyer does not provide such certification or if such
certificate is inaccurate, Seller shall not be required to accept such
assignment or pay Buyer therefore and Buyer shall not have any right to claim
indemnification with respect to such Account Receivable.
Section 7.14 Personnel. (a) Subject to Closing, Buyer agrees to offer
employment to only such Personnel of Seller who are identified on a list
provided to Seller at least ten (10) days before Closing and who are active
employees as of the Closing Date (i.e., those who are not absent on account of
injury sustained in the course of employment or short-term or long-term
disability); provided, that all offers of employment shall be on terms and
conditions determined in the sole discretion of Buyer. Each such member of
Personnel who accepts Buyer's offer of employment shall, effective as of the
Closing Date, cease to be an employee of Seller and become an employee of Buyer
(collectively, referred to as "Transferred Personnel"). Nothing herein obligates
Buyer to provide continued employment to any member of Transferred Personnel for
any specific period of time thereafter. On and after the Closing Date, Buyer
shall be the sole judge of terms of the number, identity and qualifications of
employees necessary for conduct of the Business.
(b) Buyer shall not be obligated to adopt, with respect to any Transferred
Personnel, any Employee Plans nor any benefit plans that are comparable to the
Employee Plans. Notwithstanding any provision in this Agreement to the contrary,
nothing herein shall (i) restrict Buyer's right to determine its benefit plans
in the future (including, without limitation, the right to amend or terminate
any plan), or (ii) obligate Buyer to assume any liability for benefits
(including but not limited to worker's compensation) in respect of claims
incurred or benefits accrued on or before the Closing Date.
Section 7.15 Change of Name. On the Closing Date, Seller and Parent will
discontinue any business operations under, and any use of, the names "Astrotech
Space Operations, L.P.," "Astrotech Space Operations, Incorporated" or any name,
including the word "Astrotech" or any variation thereof (collectively, the
"Restricted Names"). In that connection, on the Closing Date Seller and Parent
will execute amendments to the certificate of limited partnership of Astrotech
Space Operations, L.P. and the certificate of incorporation of Astrotech Space
Operations, Incorporated, respectively, in order to change their names to names
that do not include the word "Astrotech" and file such amendments with
appropriate state authorities within two (2) business days of the Closing.
Seller and Parent agree that they will not conduct any business post-Closing
under any Restricted Name or any variation thereof or derivative thereof other
than such business as is in furtherance of the terms and provisions of this
Agreement and as is for the benefit of, and at the express written request and
expense of, Buyer.
Section 7.16 Novation of Contracts; Third Party Consents. (a) As soon as
practicable following execution of this Agreement, Buyer shall prepare (with
Seller's assistance), a written request, which shall be submitted by Seller to
each contracting party for the Contracts set forth on Schedule 4.19, to (i)
recognize Buyer as Seller's successor in interest to all the Assets constituting
Contracts; and (ii) to enter into a novation agreement (each, a "Novation
Agreement" and collectively, the "Novation Agreements") in form and substance
reasonably satisfactory to Buyer and Seller and their respective counsel,
pursuant to which, all of Sellers right, title and interest in and to, and all
of Seller's obligations and liabilities under, each such contract shall be
validly conveyed, transferred and assigned and novated to Buyer by all
parties thereto. Buyer shall provide to Seller promptly any information
regarding Buyer required in connection with such request. Seller and Buyer shall
each use all reasonable efforts to obtain all consents, approvals and waivers
required for the purpose of processing, entering into and completing the
Novation Agreements with regard to any of the contracts.
(b) In connection with obtaining the consents contemplated by this Section
7.16, Seller shall not consent to any modification of any Contract included in
the Assets which would adversely affect the rights of Buyer under such Contract
without the prior written consent of Buyer.
Section 7.17 Performance of Obligations. Each of Buyer and SPACEHAB
covenant and agree with Seller that all terms, covenants and conditions of all
contracts, agreements and undertakings set forth on Schedule 4.19 hereto that
Buyer will acquire from Seller in the transactions contemplated by this
Agreement will be performed as written, in a complete, timely and workmanlike
manner, except to the extent any such matter is being contested in good faith by
Buyer or SPACEHAB and except for such terms, covenants and conditions that have
been modified by mutual consent of the contracting parties, including Buyer as
successor to Seller.
Section 7.18 Capital Expenditures. Except as set forth on Schedule 7.18
hereto, from the date of this Agreement until the Closing Date, Seller will not
incur any capital expenditure or any liability therefor requiring any payment or
payments in excess of $10,000 individually or $250,000 in the aggregate without
the prior written consent of Buyer.
Section 7.19 Government Clearances.
(a) As soon as practicable following execution of this Agreement, Seller
shall prepare and provide to Buyer, which shall be set forth in Schedule 7.19, a
description of all existing government clearances issued to Seller or its
Transferred Personnel under, in connection with, or relating to Seller's
Contracts, Business, Assets, Real Property, or Real Property Leases, including
but not limited to all facilities clearances and personnel clearances in the
name of Seller or the Transferred Personnel.
(b) Seller shall provide to Buyer promptly any information requested by
Buyer relating to or involving the information described on Schedule 7.19.
Seller shall promptly provide such cooperation and assistance, and shall execute
such documents and consents as Buyer shall reasonably request, to assist in the
transfer or assignment of the clearances described on Schedule 7.19 to Seller
and/or the application for issuance of new clearances to Buyer or the
Transferred Personnel in connection with this Agreement as may be required or
requested by applicable governmental authorities or may be needed to operate the
Business as currently operated.
(c) If, as of the Closing Date, Buyer has not received from appropriate
governmental authorities all requisite government clearances, including facility
clearances and personnel clearances, necessary to operate the Business as
currently operated, Seller shall take all necessary actions to continue to
maintain in good standing all such clearances after Closing as Buyer may request
until such time as Buyer has received in its own name all requisite clearances
necessary to operate the Business as currently operated, and Seller shall
provide such personnel and assistance as Buyer may reasonably request after
Closing to assist Buyer in obtaining such clearances until all such clearances
are received by Buyer. Any such services and support shall be provided at
Seller's or Parent's cost (including reasonable and customary general and
administrative and overhead expenses) and for a period not to exceed six (6)
months from the Closing Date. For services rendered pursuant to this Section,
(i) Seller or Parent, as the case may be, shall provide Buyer with a written
statement covering each applicable 30-day period following the Closing Date,
indicating in detail the nature of the services provided and the costs
associated therewith and (ii) Buyer shall pay to Seller or Parent, as the case
may be, the specified amount within fifteen (15) days after receipt of the
statement by Buyer (less any disputed amount which Buyer and Seller or Parent,
as the case may be, shall diligently cooperate to resolve as soon as possible).
Article VIII. CONDITIONS TO OBLIGATIONS OF BUYER AND SPACEHAB. The
obligations of Buyer and SPACEHAB to consummate the transactions contemplated by
this Agreement shall be subject to the fulfillment, or the waiver by Buyer and
SPACEHAB, on or prior to the Closing Date, of the following conditions:
Section 8.1 Representations and Warranties True at the Closing Date. The
representations and warranties of Seller and Parent contained in this Agreement
or in any other document delivered by Seller pursuant hereto shall be deemed to
have been made on and as of the Closing Date and shall then be true and correct
in all material respects (except those representations and warranties that are
qualified by materiality and those representations and warranties set forth in
Sections 4.18(a) and (c), which shall be true and correct in all respects), and
on the Closing Date Seller and Parent shall have delivered to Buyer and SPACEHAB
an officer's certificate to such effect.
Section 8.2 Seller's and Parent's Performance. Each of the obligations of
Seller and Parent to be performed on or before the Closing Date, pursuant to the
terms of this Agreement, shall have been duly performed by the Closing Date, and
on the Closing Date Seller and Parent shall have delivered to Buyer and SPACEHAB
an officer's certificate to such effect.
Section 8.3 Instruments of Conveyance and Transfer; Title Insurance. At the
Closing, Seller shall have delivered to Buyer such deeds, bills of sale,
endorsements, assignments, and other good and sufficient instruments of
conveyance and transfer (including, without limitation, recordable assignments
of any Intellectual Properties in recordable form), in form and substance
reasonably satisfactory to Buyer and its counsel, as are effective to vest in
Buyer, as applicable, good and marketable and, in the case of owned real
property, fee simple, title to the Assets free and clear of any Liens, except
for Permitted Liens. Simultaneously with such delivery, Seller shall take or
cause to be taken all such other steps as are reasonably required hereunder to
put Buyer in actual possession and operating control of the Assets. Without
limiting the generality of the foregoing, conveyance of the real property shall
be made by bargain and sale deeds with covenants against grantor's acts (or the
equivalent instruments in the jurisdiction where such real property is located)
(the "Deeds"). Buyer, with full cooperation of Seller, shall take such action to
cause such Deeds to be accompanied by (i) paid title insurance policies in such
amount as Buyer shall determine, obtained at Buyer's expense, issued by a
reputable title insurance company or companies, to be selected by Buyer,
insuring fee simple title of the owned real property in the name of Buyer and
containing no exceptions to coverage other than those Permitted Liens specified
on Schedule 4.11(a) hereto and a survey reading reflecting the matters shown on
the survey(s) hereinafter referred to; provided, that such matters do not
materially detract from the value or materially interfere with the present
occupancy or use of any of the properties and (ii) a current survey or surveys
of the real property and existing improvements certified to Buyer and the title
insurance company, obtained at Buyer's expense, issued by a duly certified
surveyor, acceptable (such that no general survey exception will be taken) to
the title insurance company issuing the title insurance policies. The matters
contemplated by the foregoing sentence are a condition to Buyer's obligation to
consummate the transactions contemplated hereby.
Section 8.4 Certain Tax and Real Estate Transfer Forms. At the Closing,
Seller shall have delivered to Buyer an affidavit stating, under penalty of
perjury, that it is not a foreign person pursuant to Section 1445(b)(2) of the
Code. Seller shall have completed or filed, as the case may be, all reports or
returns required to be filed at or prior to Closing in connection with the
transfer of fee and leasehold interests in real property.
Section 8.5 Opinion of Seller's and Parent's Counsel. There shall have been
delivered to Buyer and SPACEHAB an opinion, dated the Closing Date and addressed
to Buyer and SPACEHAB, of ▇▇▇▇ ▇▇▇▇▇▇, Esq., counsel to Seller and Parent,
substantially in the form of Exhibit B hereto.
Section 8.6 Approvals and Consents. Except for those approvals and consents
that by their terms cannot be obtained prior to Closing, Seller shall have
obtained and shall have delivered to Buyer all requisite approvals and consents
necessary to operate the Business as currently operated from governmental or
regulatory bodies or agencies, whether federal, state, local or foreign, and all
third-party consents and approvals and valid sublicenses as contemplated by
Section 7.10 and Section 7.16 above pursuant to all Intellectual Property,
Contracts, Real Property Leases or Permits required pursuant to the terms of
such instruments or necessary for the performance of their respective
obligations hereunder.
Section 8.7 Material Adverse Change. There shall not have occurred any
damage or destruction of, or loss to, any of the Assets of Seller, whether or
not covered by insurance, which has had or is reasonably likely to have a
Material Adverse Effect, nor shall there have occurred any other event or
condition which has had or is reasonably likely to have a Material Adverse
Effect, including, without limitation, any change in applicable federal or state
laws, regulations or practices which would have a Material Adverse Effect.
Section 8.8 Litigation. No claim, action, suit, investigation or other
proceeding shall be pending or threatened by any third party (including any
governmental agency) before any court or administrative agency challenging or
otherwise relating to the transactions provided for herein or which may affect
Buyer, SPACEHAB, Seller, or Parent in a manner which is materially adverse.
Section 8.9 No Change in Law. There shall not have been any action taken or
any statute enacted by any governmental authority which would render the parties
unable to consummate the transactions contemplated herein or make the
transactions contemplated herein illegal or prohibit, restrict or substantially
delay the consummation of the transactions contemplated herein.
Section 8.10 ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇-Act. All applicable waiting periods under
the H-S- R Act shall have expired or been terminated, and no action shall have
been taken or formal protest made by the United States Department of Justice,
the Federal Trade Commission or any governmental authority or any other person
or entity to prohibit the transactions contemplated by this Agreement by reason
of a claimed violation of any antitrust laws. Without limiting the foregoing, no
obligation arising out of the H-S-R Act shall have been imposed on Buyer to
divest any material portion of its business by reason of the transaction
contemplated by this Agreement.
Section 8.11 Authorization Documents. Buyer shall have received a
certificate of the General Partner or other person duly authorized by Seller
certifying a copy of resolutions authorizing the execution and full performance
of this Agreement and the other documents to which Seller is a party.
Section 8.12 Documents. Seller and Parent shall have furnished Buyer with
all other documents, certificates and other instruments reasonably required to
be furnished to Buyer pursuant to the terms hereof.
Section 8.13 Release of UCCs. Any recorded UCC financing statements with
respect to any Liens, other than Permitted Liens shall have been terminated as
of record, and Seller shall have delivered to Buyer executed UCC-3 termination
statements satisfactory to record such terminations.
Section 8.14 Additional Closing Documents of Seller and Parent. On the
Closing Date, Buyer shall have received (i) a blanket assignment by Seller for
Buyer to use the names "Astrotech," "Astrotech Space Operations, L.P." and
"Astrotech Space Operations, Incorporated" and individual assignments to use
such names valid for each state in which Seller currently conducts its Business,
in connection with the conduct of the Business from and after the Closing Date;
and (ii) a good standing certificate, certificate of existence (or subsistence)
or certificate of valid qualification as a foreign entity, as the case may be,
from the state of Seller's organization and each state in which Seller conducts
its businesses.
Section 8.15 Delivery of Financial Statements. At the Closing, Seller shall
(at Seller's sole cost and expense) have delivered, or caused to be delivered to
Buyer, the financial statements of Seller on a consolidated basis for fiscal
years ended December 31, 1994, 1995 and 1996, prepared in accordance with GAAP.
Section 8.16 Environmental Review. Buyer (a) shall have been furnished with
true and correct copies of all materials prepared by or on behalf of Seller or
Parent relating to any environmental due diligence, audit or similar review of
the Assets or the Business and (b) shall be satisfied in its sole discretion
with the results of any environmental due diligence, audit or similar review of
the Assets or the Business conducted by or on behalf of Buyer.
Section 8.17 LMCLS Agreement. Seller shall have obtained and delivered to
Buyer a true and correct copy of the executed written agreement of Lockheed
▇▇▇▇▇▇ Commercial Launch Services (the "LMCLS Agreement"), which agreement shall
provide for the use of the Business' facilities and services by Lockheed ▇▇▇▇▇▇
Commercial Launch Services on an exclusive basis for a contract term of three
(3) years at a processing fee of $625,000 per payload, subject to annual
escalation of three and one-half percent (3-1/2%), and no other material changes
shall have occurred in the LMCLS Agreement in effect on the date of this
Agreement.
Article IX. CONDITIONS TO OBLIGATIONS OF SELLER AND PARENT. The obligation
of Seller and Parent to consummate the transactions contemplated hereby shall be
subject to the fulfillment, or the waiver by Seller and the Parent, on or prior
to the Closing Date, of the following conditions:
Section 9.1 Representations and Warranties True at the Closing Date. The
representations and warranties of Buyer and SPACEHAB contained in this Agreement
or in any other document delivered by Buyer or SPACEHAB pursuant hereto shall be
deemed to have been made at and as of the Closing Date and shall then be true
and correct in all material respects (except those representations and
warranties that are qualified by materiality, which shall be true and correct in
all respects), and on the Closing Date Buyer shall have delivered to Seller and
Parent an officer's certificate to such effect.
Section 9.2 Buyer's Performance. Buyer shall, on the Closing Date, pay to
Seller the Purchase Price, in accordance with Section 2 above.
Section 9.3 Opinion of Buyer's Counsel. There shall have been delivered to
Seller and Parent an opinion, dated the Closing Date and addressed to Seller and
Parent of Buyer's counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, substantially in the form of
Exhibit C hereto.
Section 9.4 Approvals and Consents. Buyer shall have obtained and shall
have delivered to Seller all requisite approvals and consents from governmental
or regulatory bodies or agencies, whether federal, state, local or foreign.
Section 9.5 Litigation. No claim, action, suit, investigation or other
proceeding shall be pending or threatened by any third party (including any
governmental agency) before any court or administrative agency challenging or
otherwise relating to the transactions provided for herein or which may affect
Buyer, SPACEHAB, Seller, or Parent in a manner which is materially adverse.
Section 9.6 No Change in Law. There shall not have been any action taken or
any statute enacted by any governmental authority which would (i) render the
parties unable to consummate the transactions contemplated herein, (ii) make the
transactions contemplated herein illegal or (iii) prohibit, restrict or
substantially delay the consummation of the transactions contemplated herein.
Section 9.7 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. All applicable waiting periods under the
H-S- R Act shall have expired or been terminated, and no action shall have been
taken or formal protest made by the United States Department of Justice, the
Federal Trade Commission or any other governmental authority or any other person
or entity to prohibit the transactions contemplated by this Agreement by reason
of a claimed violation of any antitrust laws.
Section 9.8 Documents. Buyer shall have furnished Seller and Parent with
all documents, certificates and other instruments reasonably required to be
furnished to any of them by Buyer pursuant to the terms hereof.
Article X. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
statements contained in any Exhibit, Schedule or Annex hereto or in any
certificate or instrument of conveyance delivered by or on behalf of the parties
pursuant to this Agreement or in connection with the transactions contemplated
hereby shall be deemed representations and warranties by the parties hereunder.
Section 10.1 Survival of Representations, Warranties, Etc. Except as
otherwise provided herein, the representations and warranties contained in
Articles IV and V of this Agreement shall survive the Closing for a period of
twenty-one (21) months after the Closing Date; provided, however, that: (i) the
representations and warranties contained in Section 4.8 hereof shall survive the
Closing Date until sixty (60) days after the expiration of the applicable
statutes of limitations for the assessment of Taxes; (ii) if any representation
or warranty contained in Articles IV, V or VI is fraudulently given, it shall
survive the Closing Date for an unlimited period of time; and (iii) any specific
claim or action of which specific written notice is given to the party which
made such representation or warranty prior to the date on which such
representation or warranty otherwise terminates as provided herein, may continue
to be asserted and shall be indemnified against pursuant to this Article X.
Section 10.2 Seller and Parent Agreement to Indemnify. (a) Seller and
Parent jointly and severally shall fully indemnify, defend and hold harmless
Buyer and SPACEHAB, their respective officers, directors, employees, agents,
representatives, and affiliates and their successors and assigns against and in
respect of any and all liabilities, losses, damages, claims, penalties, actions,
fines, deficiencies, costs, taxes, loss of deductions or expenses (including,
without limitation, the reasonable fees, expenses and disbursements of counsel)
(collectively, "Losses") regardless of whether an action has been filed or
asserted against Buyer or SPACEHAB after the Closing Date, arising from, in
connection with or resulting from (i) any misrepresentation, inaccuracy or
breach of representation, warranty, covenant or agreement by Seller or Parent
made in this Agreement (including, without limitation, the Schedules, Exhibits
and Annexes hereto and the certificates delivered hereunder) or as provided
herein; provided, however, that Seller's and Parent's obligation to indemnify,
defend and hold harmless Buyer and SPACEHAB under this clause (i) shall not
arise with respect to any losses that do not exceed $5,000 individually or
$250,000 in the aggregate; and provided, further, that in the case of any
individual loss in excess of $5,000 or aggregate losses in excess of $250,000,
Seller and Parent shall be liable for the entire amount of such loss or losses,
(ii) any Excluded Liability, (iii) any and all Losses arising from a
determination that the sale of the Assets hereunder is ineffective against any
creditor of Seller or Parent or any taxing authority or other entity asserting
any similar claim against Seller or Parent or the Assets and (iv) costs or
expenses related to the employment of current or former Personnel for periods
prior to the Closing Date, that Buyer, Seller or Parent may incur (including but
not limited to, with respect to the Employee Plans or with respect to any other
benefit plan) with respect to which Seller (or any entity required to be
aggregated with Seller under Section 414(b), (c), (m) or (o) of the Code) has or
had any liability or obligation to contribute at any time before the Closing).
(b) In addition to the foregoing provisions of Section 10.2(a) above and
without limiting the generality of such provisions, Seller and Parent agree to
fully indemnify and hold harmless (i) Buyer and its respective parent
corporations and subsidiaries and all other members, if any, of any group of
which Buyer is a member for Tax purposes (any subsequent reference to "Buyer" in
this clause (i) shall mean either Buyer individually or one or more of its
affiliates as described herein, as appropriate) against and in respect of and,
on demand, will reimburse Buyer for, any and all liability whatsoever, and
however imposed (including any claim asserted or deficiency assessed against or
collected from or paid by Buyer), in respect of (A) except for any Taxes
expressly provided for herein as being assumed or paid by Buyer, any Taxes
relating to the Assets or the Business for any and all periods through and
including the Closing Date and (B) any Taxes payable by the Seller pursuant to
Article XI hereof, and (ii) Buyer and its respective parent corporations,
subsidiaries, officers, directors, shareholders and other affiliates from and
against and in respect of any and all Losses resulting from any environmental
claim made against Buyer, or its respective parent corporations, subsidiaries,
officers, directors, shareholders and other affiliates by any person or entity
(including, but not limited to, claims under CERCLA, as amended, or other
federal, state, local, or foreign Environmental Laws) arising from events,
circumstances, or conditions occurring, or existing on or prior to the Closing
Date relating to the Business, whether disclosed or undisclosed; provided that
any claim therefor is asserted by Buyer prior to five (5) years from the Closing
Date.
(c) In addition to the foregoing provisions of Section 10.2, Parent agrees
that it shall not be necessary or required that Buyer or SPACEHAB exercise any
right, assert any claim or demand or enforce any remedy whatsoever against
Seller before or as a condition to the obligations of Parent hereunder. The
indemnification liability of Parent under the foregoing provisions of Section
10.2 shall be absolute and unconditional as if Parent rather than Seller had
made the representations and warranties herein irrespective of any right of
set-off or counterclaim which may at any time be available to or asserted by
Parent or Seller against Buyer or SPACEHAB or any affiliates thereof.
Section 10.3 Buyer's Agreement to Indemnify. Buyer and SPACEHAB jointly and
severally shall fully indemnify, defend and hold harmless Seller, Parent and
their respective officers, directors, employees and affiliates against and in
respect of any and all Losses (a) resulting from any misrepresentation or breach
of any representation, warranty, covenant or agreement by Buyer in this
Agreement (including, without limitation, the certificates delivered hereunder)
or as provided herein; provided, however, that Buyer's obligation to indemnify,
defend and hold harmless Seller and Parent under this clause (a) shall not arise
with respect to any losses that do not exceed $5,000 individually or $250,000 in
the aggregate; and provided, further, that in the case of any individual loss in
excess of $5,000 or aggregate losses in excess of $250,000, Buyer shall be
liable for the entire amount of such loss or losses, (b) arising out of the
conduct of the Business from and after the Closing Date, except with respect to
an Excluded Liability and (c) resulting from any Assumed Liability.
Section 10.4 Procedures Relating to Indemnification. Promptly after the
receipt by any party hereto of notice of any claim, action, suit or proceeding
of any third party which is subject to indemnification hereunder, such party or
parties (the "Indemnified Party") shall give written notice of such claim (a
"Notice of Claim") to the party or parties obligated to provide indemnification
hereunder (collectively, the "Indemnifying Party"), stating the nature and basis
of such claim and the amount thereof, to the extent known. The failure of the
Indemnified Party to so notify the Indemnifying Party shall not impair the
Indemnified Party's ability to seek indemnification from the Indemnifying Party.
The Indemnifying Party shall be entitled to participate in the defense or
settlement of such matter and the parties agree to cooperate in any such defense
or settlement and to give each other full access to all information relevant
thereto. The Indemnifying Party shall not be obligated to indemnify an
Indemnified Party hereunder for any settlement entered into without the
Indemnifying Party's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. If any Notice of Claim relates to
a claim by a person or persons (other than by federal, state or local income tax
authorities or by the Buyer or SPACEHAB), and the amount of such claim is
acknowledged by Seller to be fully covered by the foregoing indemnity, as
limited herein, the Seller may elect to defend against such claim at its
expense, in lieu of the Buyer or SPACEHAB assuming such defense; provided, that
Buyer or SPACEHAB shall be entitled to participate in or monitor such defense at
its expense and Seller will fully cooperate with Buyer or SPACEHAB and its
counsel with respect thereto. If the Seller or any other persons as provided
above elect to assume such defense, they shall retain counsel reasonably
satisfactory to the Buyer or SPACEHAB. No compromise or settlement of such claim
may be effected by either party without the other party's consent (which shall
not be unreasonably withheld) unless (i) there is no finding or admission of any
violation of law and no effect on any other claims that may be made against such
other party and (ii) the sole relief provided is monetary damages that are paid
in full by the party seeking the settlement.
Section 10.5 Payment. All amounts payable by one party to the other
pursuant to the provisions of this Article X shall be payable within five (5)
business days after a final determination thereof in accordance with the
provisions hereof. Any payment by one party to another pursuant to the
provisions of this Article X shall be in an amount which, after reduction by an
amount equal to the Taxes required to be paid by the Indemnified Party in
respect of the receipt or accrual of such amount (and after giving effect to any
current Tax benefits actually realized by the Indemnified Party as a result of
the event giving rise to such payment as a reduction in Taxes), shall be equal
to the payment otherwise required hereunder.
Article XI. PAYMENT OF CERTAIN TAXES AND EXPENSES. Buyer agrees to pay all
federal, state, county, local and foreign sales taxes which may be payable by
reason of the purchase and sale of the Assets. Buyer and Seller agree that all
transfer, recording and stamp taxes payable in connection with any of the
transactions contemplated under this Agreement and all federal, state, county,
local and foreign Taxes (including foreign transfer or stamp taxes, if
applicable) which may be payable by reason of the purchase and sale of the
Assets shall be shared equally. Each party will be liable for its own costs and
expenses incurred in connection with the negotiation, preparation, execution or
performance of this Agreement, including without limitation, fees, costs and
expenses of its own financial consultants, accountants and counsel.
Article XII. WAIVER. This Agreement shall not be released, discharged,
abandoned, changed or modified in any manner, except by an instrument in writing
executed by the parties hereto. The failure of any party to enforce at any time
any of the provisions of this Agreement shall in no way be construed to be a
waiver of any such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any party thereafter to enforce
each and every such provision. No waiver of any breach of this Agreement shall
be held to be a waiver of any other or subsequent breach.
Article XIII. NOTICES, ETC. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given, if delivered in person or by courier, telegraphed, telexed or by
facsimile transmission or mailed by certified or registered mail, postage
prepaid:
If to Seller or
Parent: Astrotech Space Operations, L.P.
c/o Northrop Grumman Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
Attention: Secretary
with a copy to: Office of General Counsel
Northrop Grumman Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
If to SPACEHAB
or Buyer: SPACEHAB, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, Esq.
Any party may, by written notice to the other, change the address to which
notices to such party are to be delivered or mailed.
Article XIV. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other
agreements referred to herein and entered into in connection herewith set forth
the entire agreement and understanding of the parties in respect of the
transactions contemplated hereby and supersede all prior agreements,
arrangements and understandings relating to the subject matter hereof including
all such agreements, arrangements and understandings between Seller, Parent,
Buyer and SPACEHAB. No representation, promise, inducement or statement of
intention has been made by Seller, Parent or Buyer and SPACEHAB that is not
embodied in this Agreement or the other agreements referred to herein and
entered into in connection herewith, the Annexes, Schedules or Exhibits hereto,
or the written statements, certificates or other documents delivered pursuant
hereto. This Agreement may be amended or modified only by a written instrument
executed by the parties hereto or by their successors and assigns.
Article XV. PRESS RELEASES. No party hereto shall issue any press releases
or make any public announcements of any of the transactions contemplated by this
Agreement except as may be mutually agreed to in writing by Seller and Buyer;
provided, however, that notwithstanding the foregoing, Seller and Buyer shall be
permitted, upon prior notice to the other party, to make such disclosures to the
public or governmental authorities as their respective counsel shall deem
necessary to maintain compliance with, or to prevent violation of, applicable
laws.
Article XVI. GENERAL. This Agreement: (a) shall be construed and enforced
in accordance with the laws of the State of New York without giving effect to
the choice of law principles thereof; (b) shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto, nothing in this
Agreement, expressed or implied, being intended to confer upon any other person
any rights or remedies hereunder; and (c) may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The Section and other
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Article XVII. SEVERABILITY. To the extent that any provision of this
Agreement shall be invalid or unenforceable, it shall be considered deleted
herefrom and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect. In furtherance and not
in limitation of the foregoing, if the duration or geographic extent of, or
business activity covered by, any provision of this Agreement shall be in excess
of that which is enforceable under applicable law, then such provision shall be
construed to cover only that duration, extent or activities which may be validly
and enforceably covered.
Article XVIII.BULK SALES LAWS. The parties hereto hereby waive compliance
with the provisions of any applicable bulk sales laws, including Article 6 of
the Uniform Commercial Code as it may be in effect in any applicable
jurisdiction. This provision shall not be deemed to in any way limit the
indemnity provided for in Section 10.2(a) above.
Article XIX. TERMINATION.
Section 19.1 Termination. This Agreement and the transactions contemplated
hereby may be terminated at any time prior to Closing by written notice
delivered by Seller to Buyer or by Buyer to Seller, as the case may be, in the
following instances:
(a) By Buyer if there has been a material misrepresentation, a material
breach of warranty or a material failure to comply on the part of Parent or
Seller with respect to any of the representations, warranties, covenants or
provisions set forth herein (or delivered in any other document pursuant
hereto), including, without limitation, any material misrepresentation, material
breach or material failure to comply that is evidenced in any Schedule delivered
by Seller, or which is discovered in Buyer's due diligence investigation of
Seller and the Business, and such misrepresentation, breach or failure to comply
has or is reasonably likely to have a Material Adverse Effect on the condition
(financial or otherwise), assets or properties of the Business taken as a whole
in the hands of Buyer and has not been cured, if capable of cure, in full within
twenty (20) days of receipt by Seller of notice from Buyer.
(b) By Seller if there has been a material misrepresentation, a material
breach of warranty or a material failure to comply with any covenant on the part
of Buyer with respect to the representations, warranties or covenants set forth
herein (or delivered in any other document pursuant hereto) and such
misrepresentation, breach or failure to comply has not been cured, if capable of
cure, within twenty (20) days of receipt by Buyer of notice from Seller.
(c) At any time prior to Closing by the mutual consent in writing of
Seller, Parent, Buyer and SPACEHAB.
(d) By Buyer or Seller if approval by SPACEHAB's Board of Directors is not
obtained by January 31, 1997.
(e) By Buyer or Seller if Closing does not occur on or before March 31,
1997.
Section 19.2 Liability in the Event of Termination; Remedies.
(a) In the event of termination of this Agreement and the transactions
contemplated hereby pursuant to Sections 19.1(a) or (b) hereof, if there has
been an intentional material representation of any of the items provided
therein, the non-breaching party may avail itself of all rights, power and
remedies now or hereafter existing at law or in equity or by statute or
otherwise.
(b) In the event of termination of this Agreement and the transactions
contemplated hereby pursuant to Sections 19.1(a) or (b) (if there has not been
an intentional material misrepresentation) or pursuant to Sections 19.1(c)
through (e) hereof, this Agreement shall, with the exception of Article XI and
Article XV hereof, become void and have no further effect, without any liability
on the part of any party hereto.
Article XX. ASSIGNMENT. Neither this Agreement nor any interest herein may
directly or indirectly be transferred or assigned by any party, in whole or in
part, without the written consent of the other parties, except that Buyer may
effect any such assignment to any affiliated company, but any such assignment
shall not relieve Buyer or SPACEHAB of their respective duties and obligations
contained in this Agreement.
Article XXI. NO THIRD PARTY BENEFICIARY. This Agreement is for the benefit
of, and may be enforced only by, Seller, Parent, Buyer, SPACEHAB, and their
respective successors and transferees and assignees, and is not for the benefit
of, and may not be enforced by, any third party.
Article XXII. REMEDIES. The parties agree that, for the transactions
provided for in this Agreement, the sole and exclusive remedy shall be for
breaches of the express terms herein.
Article XXIII.INTERPRETIVE PROVISION. Whenever used in this Agreement "to
the knowledge of" or similar language shall mean the actual knowledge, after due
inquiry, of any person who, on the date hereof is an officer of Seller and who
is identified on Annex I hereto.
Article XXIV. SPACEHAB GUARANTEE. SPACEHAB hereby unconditionally
guarantees the payment and performance of any and all of Buyer's liabilities and
obligations hereunder and those under any ancillary agreements or documents
executed and delivered in connection with this Agreement. Seller and Parent may
seek remedies directly from SPACEHAB without first exhausting their remedies
against Buyer.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and year first above written.
SPACEHAB ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SPACEHAB, INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
ASTROTECH SPACE OPERATIONS, L.P.
By Astrotech Space Operations,
Incorporated,
its General Partner
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇
Title: President
NORTHROP GRUMMAN CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Corp. V.P. and Treasurer
TABLE OF CONTENTS
Page
Parties..................................................................... 1
Recitals.................................................................... 1
Article I. SALE AND PURCHASE......................................... 1
Section 1.1 Sale and Purchase of Assets............................... 1
Section 1.2 Excluded Assets........................................... 4
Section 1.3 Assumption of Liabilities and Obligations................. 4
Section 1.4 Excluded Liabilities...................................... 5
Article II. PURCHASE PRICE; ADJUSTMENT................................ 5
Section 2.1 Purchase Price............................................ 5
Section 2.2 Adjustment of Purchase Price.............................. 5
Section 2.3 Allocation of Purchase Price.............................. 7
Section 2.4 Closing Proration......................................... 7
Article III. THE CLOSING............................................... 7
Article IV. REPRESENTATIONS AND WARRANTIES OF SELLER.................. 7
Section 4.1 Seller's Organization, Good Standing, Capitalization..... 7
Section 4.2 Authority; Execution; Delivery........................... 7
Section 4.3 Consents; No Violation, Etc.............................. 8
Section 4.4 No Other Agreements to Sell the Assets or the Busines.... 8
Section 4.5 Financial Statements..................................... 8
Section 4.6 Absence of Undisclosed Liabilities and Obligations....... 9
Section 4.7 Absence of Certain Changes or Events..................... 9
Section 4.8 Taxes.................................................... 10
Section 4.9 Accounts Receivable...................................... 12
Section 4.10 Copies of Documents...................................... 12
Section 4.11 Tangible Properties...................................... 12
Section 4.12 Intellectual Property.................................... 13
Section 4.13 Assets................................................... 14
Section 4.14 Insurance................................................ 14
Section 4.15 Employment Matters....................................... 14
Section 4.16 Employee Benefit Plans................................... 14
Section 4.17 Litigation............................................... 15
Section 4.18 Compliance with Laws..................................... 16
Section 4.19 Validity of Leases and Contracts......................... 16
Section 4.20 No Brokers............................................... 16
Section 4.21 Transactions with Certain Persons........................ 17
Section 4.22 Records.................................................. 17
Section 4.23 Warranties............................................... 17
Section 4.24 Environmental Matters.................................... 17
Section 4.25 Suppliers, Distributors and Customers.................... 18
Section 4.26 Investments.............................................. 18
Section 4.27 Exclusive Representations and Warranties................. 18
Article V. REPRESENTATIONS AND WARRANTIES OF PARENT.................. 18
Section 5.1 Parent's Organization, Good Standing, Capitalization..... 18
Section 5.2 Authority; Execution; Delivery; Ownership of Seller...... 18
Section 5.3 Consents; No Violation, Etc.............................. 19
Section 5.4 No Other Agreements to Sell the Assets or the Business... 19
Section 5.5 Employee Benefit Plans................................... 19
Article VI. REPRESENTATIONS AND WARRANTIES OF BUYER AND SPACEHAB...... 19
Section 6.1 Buyer's Organization and Good Standing................... 19
Section 6.2 Authority; Execution and Delivery........................ 20
Section 6.3 No Brokers............................................... 20
Section 6.4 Consents, No Conflicts, Etc.............................. 20
i
Page
Article VII. CERTAIN COVENANTS AND AGREEMENTS.......................... 20
Section 7.1 Non-Competition ......................................... 20
Section 7.2 Non-Disclosure .......................................... 21
Section 7.3 Further Assurances ...................................... 21
Section 7.4 Access to Facilities; Due Diligence ..................... 21
Section 7.5 Conduct of the Business ................................. 21
Section 7.6 Changes in Representations and Warranties ............... 22
Section 7.7 Mutual Cooperation ...................................... 22
Section 7.8 No Mergers, Consolidations, Sales of Assets, Etc ........ 23
Section 7.9 Access to Books and Records; Cooperation ................ 23
Section 7.10 Consents ................................................ 23
Section 7.11 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act ................................... 24
Section 7.12 Collection of Receivables ............................... 24
Section 7.13 Assignment of Receivables ............................... 24
Section 7.14 Personnel ............................................... 24
Section 7.15 Change of Name .......................................... 25
Section 7.16 Novation of Contracts; Third Party Consents ............. 25
Section 7.17 Performance of Obligations .............................. 25
Section 7.18 Capital Expenditures .................................... 26
Section 7.19 Government Clearances ................................... 26
Article VIII. CONDITIONS TO OBLIGATIONS OF BUYER AND SPACEHAB. ......... 26
Section 8.1 Representations and Warranties True at the Closing Date . 27
Section 8.2 Seller's and Parent's Performance ....................... 27
Section 8.3 Instruments of Conveyance and Transfer; Title Insurance . 27
Section 8.4 Certain Tax and Real Estate Transfer Forms .............. 27
Section 8.5 Opinion of Seller's and Parent's Counsel ................ 28
Section 8.6 Approvals and Consents .................................. 28
Section 8.7 Material Adverse Change ................................. 28
Section 8.8 Litigation .............................................. 28
Section 8.9 No Change in Law ........................................ 28
Section 8.10 ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇-Act ................................... 28
Section 8.11 Authorization Documents ................................. 28
Section 8.12 Documents ............................................... 28
Section 8.13 Release of UCCs ......................................... 29
Section 8.14 Additional Closing Documents of Seller and Parent ....... 29
Section 8.15 Delivery of Financial Statements ........................ 29
Section 8.16 Environmental Review .................................... 29
Section 8.17 LMCLS Agreement ......................................... 29
Article IX. CONDITIONS TO OBLIGATIONS OF SELLER AND PARENT............ 29
Section 9.1 Representations and Warranties True at the Closing Date .. 29
Section 9.2 Buyer's Performance....................................... 29
Section 9.3 Opinion of Buyer's Counsel................................ 30
Section 9.4 Approvals and Consents.................................... 30
Section 9.5 Litigation................................................ 30
Section 9.6 No Change in Law.......................................... 30
Section 9.7 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act..................................... 30
Section 9.8 Documents................................................. 30
Article X. NATURE AND SURVIVAL OF REPRESENTATIONS AND
WARRANTIES, ETC........................................... 30
Section 10.1 Survival of Representations, Warranties, Etc............. 30
Section 10.2 Seller and Parent Agreement to Indemnify................. 31
Section 10.3 Buyer's Agreement to Indemnify........................... 32
Section 10.4 Procedures Relating to Indemnification................... 32
Section 10.5 Payment.................................................. 32
Article XI. PAYMENT OF CERTAIN TAXES AND EXPENSES..................... 33
Article XII. WAIVER.................................................... 33
Article XIII. NOTICES, ETC.............................................. 33
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Article XIV. ENTIRE AGREEMENT; AMENDMENT............................... 34
Article XV. PRESS RELEASES............................................ 34
Article XVI. GENERAL................................................... 34
Article XVII. SEVERABILITY.............................................. 35
Article XVIII. BULK SALES LAWS........................................... 35
Article XIX. TERMINATION............................................... 35
Section 19.1 Termination.............................................. 35
Section 19.2 Liability in the Event of Termination; Remedies.......... 36
Article XX. ASSIGNMENT................................................ 36
Article XXI. NO THIRD PARTY BENEFICIARY................................ 36
Article XXII. REMEDIES.................................................. 36
Article XXIII. INTERPRETIVE PROVISION.................................... 36
Article XXIV. SPACEHAB GUARANTEE........................................ 36
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EXHIBITS
Exhibit A Reference Balance Sheet
Exhibit B Opinion of Seller's Counsel
Exhibit C Opinion of Buyer's Counsel
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DISCLOSURE SCHEDULES
Schedule Description
4.3(a) Consents
4.3(b) No Violation
4.5 Financial Statements
4.7 Absence of Certain
Changes or Events
4.8(c) Tax Returns
4.8(f) Tax
Assessments/Deficiency
4.8(h) Franchise/Income/Tax
Returns
4.9 Accounts Receivable
4.10(e) Permits
4.11 Assets
4.11(a) Permitted Liens
4.11(b) Equipment
4.12(a) Intellectual Property
4.12(b) Liens on Intellectual
Property
4.12(d) Intellectual Property
Proceedings
4.14 Insurance
4.15 Employment Matters
4.16(a) Employee Plans
4.16(b) Multiemployer Plans,
PBGC Liability and
Accumulated Funding
Deficiencies
4.16(e) Compensation
4.17 Litigation
4.18(b) Compliance with Laws
4.19 Leases & Contracts
4.21 Transactions with Certain
Persons
4.23 Warranties
4.24 Environmental Matters
4.25 Suppliers, Distributors and
Customers
4.26 Investments
5.3(a) Consents
5.3(b) No Violation
7.18 Capital Expenditures
7.19 Government Clearances
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DEFINED TERMS
Cross Reference
Terms in Agreement
----- ---------------
Accounts Receivable Section 1.1(b)
Agreement Preamble
Assets Section 1.1
Assumed Liabilities Section 1.3
Balance Sheet Date Section 1.1(a)
Business Preamble
CERCLA Section 4.24(a)
Certification Section 2.2(a)
Claims Section 1.1(j)
Closing Article III
Closing Balance Sheet Section 2.2(a)
Closing Date Article III
COBRA Coverage Section 4.15
Code Section 2.3
Competing Business Section 7.1(b)
Contract Section 1.1(d)
Contracts Section 1.1(d)
Deeds Section 8.3
Employee Plans Section 4.16
Environmental Laws Section 4.24(a)
ERISA Section 4.16
Excluded Assets Section 1.2
Excluded Liabilities Section 1.4
Financial Statements Section 4.5
Firm Section 2.2(b)
Future Contracts Section 1.1(h)
GAAP Undefined
Governmental Authority Section 4.18(a)
H-S-R Act Section 7.11
Hazardous Materials Section 4.24(a)
Indemnified Party Section 10.4
Indemnifying Party Section 10.4
Intellectual Property Section 1.1(l)
Laws Section 4.18(a)
Liens Section 4.2
LMCLS Agreement Section 8.17
Losses Section 10.2
Material Adverse Effect Section 4.1
Names Section 1.1(g)
net asset value Section 2.2(b)(i)
Non-Competition Period Section 7.1
Parent Preamble
Permits Section 1.1(k)
Permitted Liens Section 4.11
Personal Property Section 1.1(c)
Personnel Section 4.7(c)
Prepaid Expenses Section 1.1(i)
Provider Contracts Section 1.1(d)
Purchase Price Section 2.1
Real Property Section 1.1(e)
Real Property Leases Section 1.1(e)
Records Section 1.1(f)
Reference Balance Sheet Section 4.5
Restricted Names Section 7.15
Seller Preamble
SPACEHAB Preamble
Tax Section 4.8(a)
Tax Return Section 4.8(b)
Transferred Personnel Section 7.14
Warranties Section 1.1(m)
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