ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, made and entered into as of this 5th day of
March, 1997 ("Agreement"), is by and between Micron Products Inc., a
Massachusetts corporation having an office and place of business at ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Purchaser"), and Newmark, Inc., a
Connecticut corporation having an office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Seller").
W I T N E S S E T H
WHEREAS, Seller is engaged in the business of manufacturing, marketing and
selling electrical connectors, medical studs, components and products relating
thereto; and
WHEREAS, Seller, as an adjunct to its principal business has developed,
assembled, marketed, leased and sold medical stud and eyelet application
machines (hereinafter the "Machine Business"); and
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to
sell to Purchaser, substantially all of the assets, properties and rights of
Seller used in or constituting the Machine Business, subject to the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, Seller and Purchaser agree as follows:
1. PURCHASE AND SALE OF ASSETS.
1.1 PURCHASE AND SALE. Upon the terms and subject to the conditions
of this Agreement, at the Closing (as hereinafter defined), Seller shall sell,
convey, transfer, assign and deliver to Purchaser, and Purchaser shall purchaser
from Seller, all of the following assets, properties and rights used in and/or
constituting the Machine Business (all such assets, properties and rights being
herein collectively referred to as the "Assets" and individually as an "Asset"):
(a) all patents, trademarks, service marks, copyrights and
applications therefor, all tradenames, brand names, logos, inventions,
discoveries, improvements, processes, technology, know-how, formulae,
drawings, schematics, specifications, trade secrets, confidential
information, plans, computer software (including source and object code
thereof and other documentation, including, without limitation, copies
thereof in machine readable form), files, programs, instruction manuals,
promotional materials, notebooks and records, and all other proprietary,
technical and other information and intellectual property, technical and
other information and intellectual property and all licenses, permits and
other rights to use the foregoing, whether patentable or unpatentable, used
in
or associated with the operation of the Machine Business and all goodwill
associated with the foregoing (or, to the extent Seller does not own such
proprietary, technical and other information and technical property, a
current or royalty-free license or permit to use the foregoing), including
but not limited to those listed in and more specifically described in
Exhibit 1.1(a) hereto (the "Intellectual Property Rights");
(b) all of Seller's rights under the license agreements, product
purchase and sales contracts and other agreements used in or constituting
the Machine Business, including, without limitation, those described in
Exhibit 1.1(b) hereto, but excluding the Other Arrangements (as hereinafter
defined) (the "Business Arrangements");
(c) all parts unassembled and partly assembled ("In-Process
Inventories") and assembled parts and machines ("Finished Inventories")
whenever located and whether in transit or otherwise, used, manufactured,
leased or sold in connection with the Machine Business, including without
limitation, those listed and more specifically described in Exhibit 1.1(c)
hereto (collectively, the "Inventories"). The inventories referred to
herein have been valued as of March 5, 1997. Increases to such inventories
occurring after March 5, 1997 shall be adjusted and paid for by Purchaser
pursuant to the terms of a Manufacturing Agreement of even date herewith
between Micron and Seller;
(d) all engineering and research and development materials and
inactive and other spare parts, wherever located and whether in transit or
otherwise, used by Seller in connection with the Machine Business,
including, without limitation, those listed and more specifically described
in Exhibit 1.1(d) hereto (collectively, the "Engineering Spare Parts");
(e) all supplier lists and supplier data relating to the Machine
Business (the "Supplier Data");
(f) all customer records and files relating to the Machine Business
(the "Customer Data");
(g) all rights under express or implied warranties from the sellers
of goods and services to the Machine Business (the "Warranty Rights"); and
(h) those portions of Seller's books, records and other documents
used in or associated with the operation of the Machine Business (the
"Books and Records").
1.2 CONVEYANCE INSTRUMENTS AND RELATED MATTERS. At the Closing, the
Assets shall be conveyed by Seller as follows: Seller shall convey to Purchaser
the Intellectual Property Rights, Business Arrangements, Permits, Engineering
Spare Parts,
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Inventories, Supplier Data, Customer Data, Warranty Rights and Books and
Records by a ▇▇▇▇ of Sale, General Assignment and Conveyance in the form set
forth in Exhibit 1.2 hereto.
2. PURCHASE PRICE.
2.1 PRICE. The purchase price for the Acquired Assets shall be Four
Hundred Thousand and No/100 ($400,000) (the "Purchase Price").
2.2 PAYMENTS. The Purchase Price shall be payable as follows:
(a) Cash previously paid on account in the amount of Fifty-Eight
Thousand Three Hundred Sixty-Eight and No/100 ($58,368.00);
(b) Cash in the amount of One Hundred Forty-One Thousand Six Hundred
Thirty-Two and No/100 ($141,632) paid on March 31, 1997; and
(c) A Promissory Note in the principal sum of Two Hundred
Thousand and No/100 Dollars ($200,000). Such Promissory Note shall be
payable in twenty (20) equal monthly installments of $10,000 each
commencing on May 5, 1997. The Promissory Note shall be non-interest
bearing.
3. THE CLOSING.
3.1 CLOSING AND CLOSING DATE. The closing (the "Closing") of the
transactions contemplated hereby shall be held on or before May 10, 1997, at
10:00 a.m. Eastern Time at the offices of Newmark, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; provided, however, that if the conditions precedent
to the Closing as set forth in this Agreement shall not have been satisfied or
waived on said date, and unless this Agreement is terminated as provided herein,
the Closing shall take place on the fifth business day following said
satisfaction or waiver of such conditions, or on such other date as Seller and
Purchaser shall agree upon in writing, but in no event later than May 30, 1997,
unless such date is extended by mutual agreement in writing. The time and date
of closing is referred to herein as the "Closing Date."
3.2 TITLE, POSSESSION, RISK OF LOSS. Title to, possession of and
risk of loss or destruction or damage to the Assets shall pass to Purchaser at
the Closing; provided, however that this Section 3.2 shall not diminish, limit
or otherwise impair in any manner Seller's or Purchaser's rights under the other
provisions of this Agreement or the instruments, agreements, certificates and
documents to be executed and delivered in
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connection herewith that apportion liability between the parties with respect
to events, occurrences, omissions or other matters arising or occurring
during specified periods.
3.3 ITEMS TO BE DELIVERED AT CLOSING BY SELLER. At Closing, and
subject to the terms and conditions herein contained, Seller shall deliver to
Purchaser the following:
(a) the ▇▇▇▇ of Sale, General Assignment and Conveyance duly executed
by Seller; and
(b) such other good and sufficient instruments and documents of
conveyance and transfer, in a form reasonably satisfactory to Purchaser and
its counsel, as shall be necessary and effective to transfer and assign to,
and vest in, Purchaser all of Seller's right, title and interest in and to
the Assets; and
simultaneously with such delivery, all such steps will be taken as may be
required to put Purchaser in actual possession and operating control of the
Assets.
3.4 ITEMS TO BE DELIVERED AT CLOSING BY PURCHASER. At Closing, and
subject to the terms and conditions herein contained, Purchaser shall deliver to
Seller the following:
(a) the Assumption Agreement; and
(b) such other documents, instruments and undertakings, in a form
reasonably satisfactory to Seller and its counsel, as shall be necessary to
consummate the payment, performance or discharge, as appropriate, of the
Assumed Obligations.
3.5 OTHER DOCUMENTS. At or prior to Closing, the parties shall
exercise reasonable efforts to deliver to each other the other agreements,
opinions, certificates, instruments and documents referred to in Section 9
hereof.
4. CONDUCT PRIOR TO THE CLOSING AND CERTAIN OTHER MATTERS.
4.1 CONDUCT OF MACHINE BUSINESS. Seller represents, warrants,
covenants and agrees that, from the date hereof until the Closing Date:
(a) Seller will use its best efforts to preserve for Purchaser
favorable business relations with all persons dealing with the Assets and
the Machine Business;
(b) Seller will cooperate fully with Purchaser as to arrangements for
the transfer of the Assets to Purchaser in an orderly fashion;
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(c) Seller will promptly notify Purchaser of (i) its receipt of any
notice or claim, written or oral, of default or breach by Seller under, or
of any termination or cancellation, or threat of termination or
cancellation, of any of the Business Arrangements, as a result of which the
Assets or Machine Business shall have been or may be adversely affected,
individually or in the aggregate, in an amount in excess of $5,000, and
(ii) any loss of, damage to or disposition of any of the Assets (other than
the sale or use of Inventories in the ordinary course of business) which
shall involve an amount, individually or in the aggregate, in excess of
$5,000;
(d) Seller, without the prior written consent of Purchaser, shall not
sell, dispose of, distribute, encumber or enter into any agreement or
arrangement for the sale, disposition, distribution or encumbrance of any
of the Assets (other than the sale, lease or use of Inventories in the
ordinary course of business) or make any offer or enter into any
negotiations with respect thereto, or enter into any transaction, the
effect of which would be to diminish the amount or value of the Assets or
to adversely affect the Machine Business by an amount, individually or in
the aggregate, in excess of $5,000, and Seller shall exercise its best
efforts to cause its officers, directors, employees, representatives,
agents and stockholders to comply with this Section 4.1(d); and
(e) Seller shall not operate the Assets or conduct the Machine
Business outside the ordinary course of business or in a manner
inconsistent with prior practice.
4.2 ACCESS TO PROPERTIES AND RECORDS. From the date of this
Agreement until the Closing, Seller will (i) keep Purchaser advised of all
developments relevant to the consummation of this Agreement and the Machine
Business; cooperate fully, both in permitting Purchaser and Purchaser's
representatives, advisers, consultants, auditors and other experts to make a
full investigation, at Purchaser's sole cost and expense, and at reasonable
times and upon reasonable notice, of the properties and operations of the Assets
and the Machine Business, and in bringing about the consummation of the
transactions contemplated hereby; and (ii) afford Purchaser and Purchaser's
representatives, advisers, consultants and other experts, at Purchaser's sole
cost and expense, and at reasonable times and upon reasonable notice, reasonable
access to the machinery and equipment, inventory and supplies, records, files,
books of account, agreements and commitments including, without limitation,
information with respect to all products of and parts required in the operation
of the Machine Business. Notwithstanding the above, Purchaser and Purchaser's
representatives, advisors, consultants and other experts shall incur no
liability for any of the Assets or the Machine Business as a result of such
consultation or access, or as a result of Seller's performance (or
non-performance) of the covenants set forth in Section 4.1 above. Purchaser
covenants and agrees that, prior to the Closing, neither Purchaser nor any of
Purchaser's agents, attorneys, employees or representatives will unreasonably
interfere with any of
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the Business Arrangements, Other Arrangements, Permits and/or Intellectual
Property Rights.
4.3 SATISFACTION OF CONDITIONS; COOPERATION. Each of Seller and
Purchaser will use its best reasonable efforts to (a) obtain, as soon as
possible, all governmental approvals required to be obtained by it and make, as
soon as possible, all filings with any governmental authority required on its
part to consummate the transactions contemplated hereby, and (b) obtain, as soon
as possible, other consents to and approvals required to be obtained by it to
consummate the transactions contemplated hereby.
4.4 TECHNICAL SUPPORT. Seller agrees to provide Purchaser with such
engineering and technical support and related services as Purchaser may
reasonably request subsequent to the Closing Date in order that Purchaser may
efficiently combine the Machine Business with the business and operations of
Purchaser and may otherwise realize the full benefit of the consummation of the
transactions contemplated by this Agreement.
6. REPRESENTATIONS AND WARRANTIES.
6.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller hereby
represents and warrants to Purchaser as follows:
(a) Seller is a corporation duly organized, validly existing and,
except as set forth in Exhibit 6.1(a), in good standing under the laws of the
State of Connecticut and is duly qualified or licensed as a foreign corporation
authorized to do business in each jurisdiction in which the character of the
properties and assets now owned or held by it requires it to be so licensed or
qualified, except where the failure to obtain such license or qualification
would not have an adverse effect on the Assets or the Machine Business.
(b) Seller has full right, power, legal capacity and authority to
execute, deliver and perform this Agreement and all documents and instruments
referred to herein or contemplated hereby and to consummate the transactions
contemplated herein and thereby, including the full right, power, legal capacity
and authority to sell, assign and transfer the Assets. This Agreement has been
duly executed and delivered by Seller and, upon obtaining the foregoing
approvals, will constitute, and all documents and instruments referred to herein
or contemplated hereby when duly executed and delivered by Seller will
constitute, legal, valid and binding obligations of Seller enforceable in
accordance with their respective terms and conditions, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity (whether applied in a proceeding at law or
in equity).
(c) Except for the consents specified in Exhibit 6.1(c), no
approval, consent or other order or action of or filing with any court,
administrative agency, governmental authority or other third party is required
for the execution, delivery or
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performance by Seller of this Agreement or the other documents and instruments
referred to herein or contemplated hereby, and no other consents or approvals
of third parties are required for the consummation of the transactions
hereby, the absence of which will result in the imposition of any additional
conditions on the use or value of the Assets. Except as disclosed on Exhibit
6.1(c), there are no prior consent rights or preferential purchaser rights,
rights of first refusal or other similar rights in third parties with respect
to any of the Assets. Seller will exercise its commercially reasonable
efforts (short of paying additional consideration to any third party) to
deliver the consents specified in Exhibit 6.1(c) to Purchaser as soon as
practicable prior to the Closing Date.
(d) At the Closing, Seller shall convey to Purchaser full legal and
beneficial title to all of the Assets, free and clear of all liens, pledges,
mortgages, security interests, conditional sales contracts and encumbrances
except for the Assumed Obligations.
(e) At the time of the Closing, and subject to the satisfaction of
the conditions set forth in Section 8, below, including, without limitation, the
execution, delivery and performance of this Agreement and the other documents
and instruments referred to herein or contemplated hereby, and the consummation
of the transactions contemplated hereby and thereby and the performance by
Seller of its obligations hereunder and thereunder will not cause the imposition
of any additional conditions on the use or value of the Assets, and, except as
set forth in Exhibit 6.1(e), will not constitute a violation of, conflict with,
or result in a default under, (i) any mortgage, indenture, charter or by-law
provision, contract, agreement, commitment or other instrument of any kind to
which Seller is a party or by which Seller or any of its properties or assets
may be bound or affected or (ii) any law, rule or regulation applicable to
Seller or any court injunction, order or decree, or any valid and enforceable
order of any governmental agency having jurisdiction over Seller, which
violation, conflict or default would have or would cause a material adverse
effect on the Assets of the Machine Business.
(f) Except as set forth in Exhibit 6.1(f) hereto, Seller has not
given to any person or party, and there is not currently existing, any power of
attorney of any type pertaining to the Assets or the Machine Business.
(g) Except as set forth in Exhibit 6.1(g) hereto, there are no sales,
use or similar taxes payable by the Purchaser to any taxing authority in any
state arising from the transactions contemplated by this Agreement.
(h) The Intellectual Property Rights are valid and enforceable in
accordance with their respective terms and conditions, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity (whether applied in a proceeding at law or
in equity). The Intellectual Property Rights will upon Closing afford Purchaser
the right to use all technology, proprietary information, know-how or patented
ideas, designs or inventions owned by Seller or
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others necessary for the present operation of the Machine Business and the
marketing, distribution, sale and use (whether by Purchaser or Purchaser's
direct or indirect customers) of the products produced in connection with the
Machine Business, subject, however to the consents required as set forth in
Exhibit 6.1(c) hereto. None of the ownership, access to, use or practice of
the Intellectual Property Rights by Purchaser upon Closing will, to the best
knowledge and belief of Seller infringe on the rights of any other party,
subject, however, to any consents required as set forth in Exhibit 6.1(c)
hereto. Set forth on Exhibit 6.1(h) is a description of the license fees and
royalties payable in connection with the use and practice of the Intellectual
Property Rights and the terms and conditions on which and period for which
such license fees and royalties are payable. The Seller has delivered to
Purchaser copies of each of the agreements described on Exhibit 6.1(h), and
such copies are true, correct and complete in all material respects. Except
as otherwise set forth in Exhibit 6.1(h), Seller is not in default in any
material respect and has not been in default in any material respect under
any agreement described in Exhibit 6.1(h) obligating it to pay license fees
or royalties, and has not received a notice of any such default. The
agreements described on Exhibit 6.1(h) have not been terminated and will
remain in full force and effect.
(i) The Assets are all of the assets and properties, tangible and
intangible, which are necessary to the operation of the Machine Business as a
going concern on a basis consistent with past practice. No representation or
warranty by Seller in this Agreement and no statement respecting the Assets or
the Machine Business contained in any document delivered by Seller to Purchaser
or its representatives in connection with the transactions contemplated hereby
and no Exhibit hereto contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact necessary in
order to make the statements made herein or therein, in light of the
circumstances under which they were or will be made, not misleading.
(j) Except for the Other Arrangements, the contracts, leases,
agreements, undertakings and commitments listed on one or more of the Exhibits
contemplated by Section 1.1 are all the material contracts, leases, agreements,
undertakings and commitments related to the operation of the Machine Business or
constituting any of the Assets. Except as disclosed in Exhibit 6.1(j), Seller
is not (nor, to the knowledge of Seller, is any other party) in default under,
nor does any condition, event, circumstance or situation exist (i) which, with
the giving of notice of passage of time, or both, will cause a default or cause
the imposition of any material adverse burden or condition under any of the
Business Arrangements, Permits or Intellectual Property Rights or under any
judgment, order or decree of any court or any government agency or
instrumentality relating to the ownership of the Assets or the conduct of the
Machine Business, or (ii) as a result of which any person, firm, corporation or
other entity is or may be entitled to assert any rights against any of the
Assets or the Machine Business.
(k) Except as disclosed in Exhibit 6.1(k) hereto, as of December
31, 1996 and except as may occur in the ordinary course of business of Seller
consistent with past practice since December 31, 1996, Seller has not received
any payment under any
8
agreement or instrument for the sale, processing, exchange, storage or
transportation of products included in the Assets or produced by the Machine
Business which requires delivery in the future to any other party thereto of
products previously paid for, in full or in part; and Seller, as of the
Closing Date, will not have delivered, under any such agreement or
instrument, more product than any other party thereto is obligated to
acquire; there exists no requirement to "make up" any deliveries of products
to any third party and there has not been delivered under any such agreement
or instrument less product than any other party thereto paid for or is
obligated to purchase or acquire.
(l) Except as disclosed in Exhibit 6.1(l), there are no bonds,
deposits, financial assurance requirements or insurance coverages required to be
submitted to regulatory authorities for the continued ownership of the Assets or
the conduct of the Machine Business.
(m) Except as provided or disclosed in Exhibit 6.1(m) hereto, at the
Closing, Seller will have timely paid or will have made adequate provision
(according to terms set forth in writing and acceptable to Purchaser) for the
payment of all federal, state and local income, profits, franchise, sales, use,
employment and similar taxes, and all interest and penalties thereon due and
payable by it for all periods ended on or prior to the Closing Date, the
non-payment of which would result in a lien or encumbrance on any Asset,
would otherwise materially adversely affect the Machine Business or would
result in the Purchaser becoming liable or responsible therefor. Seller will
timely pay or make adequate provision (according to terms set forth in
writing and acceptable to Purchaser) for the payment of all tax liabilities,
assessments, interest and penalties that have accrued but that are not yet
due and payable, the non-payment of which would result in a lien or
encumbrance on any Asset, would otherwise materially adversely affect the
Machine Business or would result in the Purchaser becoming liable therefor.
(n) All of the In-Process Inventories are items of the quantity and
quality required to produce Finished Inventories in the ordinary course of
business consistent with prior practice. Except as disclosed in Exhibit 6.1(n)
hereto, all of the Finished Inventories are items of a quality and quantity that
may be used, leased and sold in the ordinary course of business at the market
prices of such products consistent with prior practice.
(o) Except as disclosed in Exhibit 6.1(o), Seller has full power,
authority and legal right and has all licenses, permits, qualifications, and
other documentation necessary or appropriate to own the Assets and to carry on
the Machine Business as being conducted on the date of this Agreement, and such
Machine Business has been and is now being conducted in compliance with all
applicable laws, ordinances, rules and regulations of any governmental
department, commission, board, bureau, agency or instrumentality of the United
Sates, any state or political subdivision thereof, or any foreign jurisdiction,
and all applicable court or administrative agency decrees, awards and orders,
and to Seller's knowledge there is no condition or state of facts which would
give rise to a violation thereof or a liability or default thereunder which
would have a
9
material adverse effect on the Assets or the Machine Business in the hands of
Purchaser following the Closing.
(p) Except as set forth in Exhibit 6.1(p), no legal action, suit or
proceedings, judicial or administrative, or grievance, arbitration,
investigation or claim by or before any governmental agency, for which Purchaser
will be responsible or liable or to which any of the Assets will be subject on
or after Closing is pending or, to the knowledge of Seller, threatened, which
involves or may involve any Asset or the operation of the Machine Business or
the purchase, sale, transportation or processing of parts or products in
connection with the Machine Business, which, if adversely determined could have
a material adverse effect on any Asset in the hands of Purchaser after the
Closing, the operation of the Machine Business by Purchaser after the Closing,
the purchase, sale, transportation or processing a raw materials or products in
connection with the Machine Business, or the ability of Seller to perform its
obligations under this Agreement or any other document or instrument referred to
herein or contemplated hereby. Except to the extent disclosed on Exhibit
6.1(p), Seller is not aware of any fact which to its knowledge might result in
any action, suit, or proceeding, judicial or administrative, or grievance,
arbitration, investigation or claim which could cause a material adverse change
in the Machine Business or the condition (financial or otherwise) of any Asset
and for which Purchaser will be responsible or liable or to which an of the
Assets will be subject in the hands of Purchaser on or after Closing.
(q) Except as disclosed on Exhibit 6.1(q), since December 31, 1996,
Seller has not operated the Assets or conducted the Machine Business outside of
the ordinary course of business or in a manner inconsistent with prior practice.
(r) Except as disclosed on Exhibit 6.1(r), since December 31, 1996,
Seller has not received any notice or claim of the types described in clause (i)
of section 4.1(c), and no loss, damage or disposition of the types described in
clause (ii) of Section 4.1(c) has occurred.
(s) Since December 31, 1996, and except as contemplated hereby,
Seller has not sold, disposed of, distributed, encumbered or entered into any
agreement or arrangement for the sale, disposition, distribution or encumbrance
of any of the Assets (other than the sale or use of Inventories in the ordinary
course of business), or made any offer or entered into any negotiations with
respect thereto, or entered into any transaction, the effect of which would be
to diminish the amount or value of the Assets or to adversely affect the Machine
Business by an amount, individually or in the aggregate, in excess of $5,000.
6.2 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents and
warrants to Seller as follows:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is duly licensed or
qualified as
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a foreign corporation and authorized to do business in each jurisdiction in
which the character of the properties and assets owned or held by it requires
it to be so licensed or qualified, except where the failure to obtain such
license or qualification would not have an adverse effect on the assets, the
business, operations or financial condition of the Purchaser and its
subsidiaries, taken as a whole.
(b) Purchaser has full right, power, legal capacity and authority to
execute, deliver and perform this Agreement and all documents and instruments
referred to herein or contemplated hereby and thereby, and to consummate the
transactions contemplated hereby, including the full right, power, legal
capacity and authority to purchase the Assets. This Agreement has been duly
executed and delivered by Purchaser and constitutes, and all documents and
instruments referred to herein or contemplated hereby, when duly executed and
delivered by Purchaser will constitute legal, valid and binding obligations of
Purchaser, enforceable in accordance with their respective terms and conditions,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether applied
in a proceeding at law or in equity).
(c) The execution, delivery and performance of this Agreement and the
other documents and instruments referred to herein or contemplated hereby, and
the consummation of the transactions contemplated hereby and thereby and the
performance by Purchaser of its obligations hereunder and thereunder will not
constitute a violation of, conflict with, or result in a default hereunder, (i)
any mortgage, indenture, charter or by-law provision, contract, agreement,
commitment or other instrument of any kind to which Purchaser is a party or by
which Purchaser may be bound or affected, or (ii) any law, rule or regulation
applicable to Purchaser, or any court injunction, order or decree, or any valid
and enforceable order of any governmental agency having jurisdiction over
Purchaser.
(d) No legal action, suit or proceeding, judicial or administrative,
or grievance, arbitration, investigation or claim, by or before any governmental
agency, is pending or, to the knowledge of Purchaser, threatened which, if
adversely determined, could have an adverse effect on the ability of Purchaser
to perform its obligations under this Agreement or any other document or
instrument referred to herein or contemplated hereby.
(e) Except for the consents contemplated hereby or specified on
Exhibit 6.2(e), no approval, consent or other order or action of or filing with
any court, administrative agency, governmental authority or other third party is
required for the execution, delivery or performance by Purchaser of this
Agreement, or the other documents and instruments referred to herein or
contemplated hereby. Purchaser will exercise its commercially reasonable
efforts (short of paying additional consideration to any third party) to deliver
the consent specified in Exhibit 6.2(e) to Seller as soon as practicable prior
to the Closing Date.
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7. SURVIVAL; INDEMNIFICATION.
7.1 SURVIVAL. The respective representations, warranties and
covenants of Seller and Purchaser herein shall survive the Closing.
7.2 INDEMNIFICATION BY SELLER. Subject to Sections 7.4, 7.6 and 7.7
herein, Seller hereby agrees, effective as of the Closing, to indemnify, save
and hold harmless Purchaser and its direct and indirect subsidiaries and its and
their successors and permitted assigns and all of their respective officers,
directors, stockholders, agents, attorneys, representatives and employees
(collectively, the "Purchaser Indemnified Parties") from and against any and all
damages, liabilities, losses, claims, deficiencies, penalties, interest,
expenses, fines, assessments, charges or costs (including attorneys' fees and
court costs) (collectively, the "Damages") arising from, out of or in any manner
connected with (a) any liability, obligation, contract, debt, lien, litigation,
dispute or commitment of Seller other than Assumed Obligations, (b) acts,
omissions, events, conditions or circumstances involving or relating to the
Assets or the Machine Business, or the employees or contractors of Seller
occurring or existing on or prior to the Closing Date, other than the Assumed
Obligations, (c) the operation of the Assets or the Machine Business or the
sale, disposal, transportation, storage or use of products or raw materials in
connection with the Machine Business on or prior to the Closing Date, including,
without limitation, product liabilities for products sold by Seller on or before
the Closing Date, (d) the breach of any covenant of Seller or the failure of
Seller to perform any obligation of Seller contained herein or in the documents
or instruments required to be delivered by Seller in connection with the
transactions contemplated hereby, (e) any inaccuracy in or breach of any
representation or warranty of Seller under this Agreement or any document or
instrument required to be delivered by Seller prior to or at the Closing or in
connection with the transactions contemplated hereby, (f) all tax liabilities of
Seller arising from or related to or based on events, occurrences, transactions,
revenues, income, operations or assets during any period prior to the Closing or
arising from or related to or based on the sale of the Assets as contemplated
hereunder, (g) the matters for which Seller retains liability under Sections 10
and 12, and (h) any liability to employees or former employees of Seller or
their beneficiaries arising from the severance or discharge (or constructive
severance or discharge) of such employees by Seller or their rights to benefits
under the Company Plans or other employment related claims.
7.3 INDEMNIFICATION BY PURCHASER. Subject to Sections 7.4, 7.6, and
7.7, Purchaser hereby agrees, effective as of the Closing, to indemnify, save
and hold harmless Seller and its successors and their permitted assigns and all
of their officers, directors, stockholders, agents, attorneys, representatives
and employees (collectively the "Seller Indemnified Parties") from and against
any Damages arising from, out of or in any manner connected with (a) the Assumed
Obligations, (b) acts, omissions, events, conditions or circumstances involving
or relating to the Assets or the Machine Business, or the employees or
contractors of Purchaser (or its subsidiary) occurring or existing after, but
not on or before, the Closing Date (other than those for which the Purchaser
12
Indemnified Parties are entitled to be indemnified by Seller under Section 7.2),
(c) the operation of any of the Assets, the operation of any other business in
which the Purchaser (or its subsidiary) shall engage, or the sale, disposal,
transportation, storage or use of products or raw materials in connection with
the Machine Business by Purchaser (or its subsidiary) after, but not on or
before, the Closing Date, including, without limitation, product liabilities for
products (other than the Inventories) sold by Purchaser (or its subsidiary)
after, but not on or before, the Closing Date (other than matters for which the
Purchaser Indemnified Parties are entitled to be indemnified by Seller under
Section 7.2), (d) the breach of any covenant of Purchaser contained herein or in
the documents or instruments required to be delivered by Purchaser in connection
with the transactions contemplated hereby, (e) any inaccuracy in, or breach of
any representation or warranty of Purchaser under this Agreement or any document
or instrument required to be delivered by Purchaser in connection with the
transactions contemplated hereby, and (f) the matters for which Purchaser
assumes liability under Sections 10 and 12, below.
7.4 LIMITATIONS ON LIABILITY.
(a) NO BENEFIT TO OTHERS. The representations and warranties,
covenants and agreements contained in this Agreement are for the sole
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and permitted assigns,
and, except as otherwise specifically provided, they shall not be construed
as conferring any rights on any other persons.
(b) LIMITATION ON SURVIVAL. Notwithstanding any other provision
of this Agreement, no claim shall be made for misrepresentation, breach of
representation or warranty, breach of covenant, or for indemnification
hereunder unless written notice specifying the nature of such claim, in
reasonable detail, shall be given to the party against whom such claim is
asserted prior to June 1, 2001.
7.5 NOTICE AND RIGHT TO DEFEND. Seller, on the one hand and
Purchaser, on the other, agree to give prompt notice to the other of the
assertion of any claim, or the commencement of any suit, action or proceeding in
respect of which indemnity may be sought hereunder. Any failure on the part of
either party to this Agreement to give the notice described in this Section 7.5
to the other party hereto shall relieve the party to whom such notice was not
provided of its obligations under this Section 7 only to the extent that such
non-notified party has been prejudiced by the lack of timely and adequate
notice. This notification requirement shall not apply to communications that
are part of or that relate to a judicial or administrative proceeding in which
the parties hereto are litigating claims against each other. The indemnifying
party shall have the right and obligation to assume the defense or settlement of
any third-party claim, suit, action or proceeding in respect of which it has an
obligation to provide indemnity hereunder, and such indemnity may be sought
hereunder by giving prompt notice to the indemnifying party; PROVIDED, HOWEVER,
that (a) the indemnified party shall at all times have the right, at
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its option and expense, to participate fully therein, and (b) if the
indemnifying party does not proceed diligently to defend the claim within ten
days after receipt of such notice, the indemnified party shall have the
right, but not the obligation, to undertake the defense of any such claim for
the account of and at the risk of the indemnifying party and the indemnifying
party shall be bound by any defense or settlement that the indemnified party
may make as to such claim. The parties shall cooperate in defending any such
third-party claim, and the defending party shall have reasonable access to
the books and records, and personnel in the possession or control of the
other party which are pertinent to the defense. The parties agree that the
indemnified party may join the indemnifying party in any action, claim or
proceeding brought by a third party, as to which any right of indemnity
created by this Agreement would or might apply, for the purpose of enforcing
any right of the indemnity granted to such indemnified party pursuant to this
Agreement.
7.6 APPORTIONMENT. Consistent with the provisions of Section 7.2 and
7.3, any Damages arising from or out of or relating to acts, omissions,
conditions, events or circumstances which occur or exist both on or prior to and
after the Closing Date shall be allocated between Seller and Purchaser in
proportion to the extent to which such acts, omissions, conditions, events or
circumstances occurring or existing on or prior to the Closing Date, which will
be Seller's responsibility, and the extent to which such acts, omissions,
conditions, events or circumstances occurring or existing after (but not on or
before) the Closing Date, which will be Purchaser's responsibility, cause or
contribute to such Damages.
7.7 REDUCTION. After the Closing, the amount payable by either party
hereto (the "Indemnifying Party") to a person entitled to indemnity hereunder
(the "Indemnified Party") with respect to any claim for indemnity hereunder by
such Indemnified Party shall be reduced (but not below zero) (or, if previously
collected by a Purchaser Indemnified Party, refunded [but not in any amount in
excess of the amount collected from Seller] at the time of receipt by such
Purchaser Indemnified Party, to the Seller) by any net proceeds of insurance
actually collected (after giving effect to retroactive, future and other premium
adjustments, whether or not then payable, and any subrogation or similar claims
payable) by such Indemnified Party for the same matter which is the subject of
such claim.
8. CONDITIONS TO CLOSING.
8.1 CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASERS. The obligation
of Purchaser to consummate the transactions contemplated by this Agreement shall
be subject to satisfaction (or the waiver in writing of Purchaser) prior to and
at the Closing of all of the following conditions:
8.1.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
Seller shall have complied in all material respects with all of its
agreements and covenants contained herein. All of the representations and
warranties of Seller contained herein shall be accurate in all material
respects at and as of the Closing
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with the same effect as though such representations and warranties had
been made at and as of the Closing and Purchaser shall have received a
certificate to such effect executed by the President and Chief Financial
Officer of Seller.
8.1.2. NO CASUALTY, LOSS OR DAMAGE. No material casualty,
loss or damage shall have occurred prior to the Closing Date to any Assets
unless Seller shall have either repaired or replaced such lost or damaged
property.
8.1.3. DOCUMENTS. All documents, instruments and agreements
required to be executed and delivered by Seller or third parties at the
Closing as contemplated hereby, and such other documents, instruments,
estoppel certificates from third parties and other certificates and
opinions as Purchaser shall reasonably request, shall have been duly
executed and delivered by Seller and any other parties required and shall
have been received.
8.1.4. CONSENTS. All consents, estoppel agreements and
approvals of third parties or any regulatory body or authority, whether
required contractually or by applicable federal, state or local law, or
otherwise necessary for the execution, delivery and performance of this
Agreement by Seller, and the transfer of the Assets to Purchaser or
otherwise required to permit the Purchaser to enjoy the use of the Assets,
without the imposition of any additional material burden on the use or
value of the Assets, except as provided in Section 12.2 and except for
approvals of governmental agencies customarily obtained subsequent to
transfer of title, shall have been delivered to Purchaser in form and
substance satisfactory to Purchaser at least two days prior to the Closing
Date and shall not have been withdrawn or revoked.
8.1.5. CORPORATE AUTHORITY. On the Closing Date, Seller shall
have delivered to Purchaser, in such form as Purchaser's legal counsel may
reasonably request, evidence of Seller's corporate authority for the
execution, delivery and performance of this Agreement and the other
agreements and instruments to be executed and delivered by Seller pursuant
hereto and the transactions contemplated hereby and thereby.
8.1.6. VIOLATIONS, CONFLICTS AND DEFAULTS. Any and all
violations, conflicts and defaults described in Exhibit 6.1(e) that pertain
to (a) any material mortgage, indenture, charter, or by-law provision,
contract, agreement, commitment or other instrument of the type described
by clause (i) of Section 6.1(e), or (b) any law, rule, regulation,
injunction, order or decree of the type described in clause (ii) of
Section 6.1(e) shall have been cured in their entirety to the satisfaction
of Purchaser at or prior to the Closing.
Notwithstanding the foregoing, the conditions set forth in Sections 8.1.1,
8.1.2, 8.1.4, and 8.1.6 shall be deemed to be satisfied unless the aggregate
effect of (i) all inaccuracies in the representations and warranties of Seller
set forth in this Agreement, as
15
of the date hereof, together with (ii) all further inaccuracies in such
representations and warranties as if they were made again as of the Closing
Date and irrespective of any disclosures thereof, together with (iii) all
breaches of agreements and covenants herein by Seller, together with (iv) all
casualties, losses or damages to the Assets, together with (v) all adverse
burdens or conditions imposed upon the Machine Business, together with (vi)
all adverse changes in or adverse effects on the Assets or the Machine
Business shall be sufficient so that there is a Material Adverse Effect. As
used in the preceding sentence, the term "Material Adverse Effect" means an
effect which is adverse in an amount in excess of $10,000. The consummation
of the Closing shall not be deemed to be a waiver by Purchaser of any of its
rights or remedies hereunder for breach of warranty, covenant or agreement
herein by Seller or for any defects in title to any of the Assets,
irrespective of any investigation made by or on behalf of Purchaser with
respect thereto prior to the Closing, and irrespective of whether Purchaser
knew or should have known of any such breach or defect. Purchaser's
indemnification obligations hereunder and Seller's other rights and remedies
hereunder shall not be affected by the existence or non-existence of a
Material Adverse Effect.
8.2 CONDITIONS PRECEDENT TO OBLIGATION OF SELLER. The obligation of
Seller to consummate the transactions contemplated by this Agreement shall be
subject to satisfaction (or the waiver in writing by Seller) at or prior to the
Closing of all of the following conditions:
8.2.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
Purchaser shall have complied in all material respects with all of its
agreements and covenants contained herein to be performed at or prior to
the Closing. All the representations and warranties of Purchaser contained
herein shall be accurate in all material respects at and as of the Closing
with the same effect as though such representations and warranties had been
made at and as of the Closing, and Seller shall have received a certificate
to such effect executed by the President (or any Vice President) of
Purchaser.
8.2.2 CORPORATE AUTHORITY. On the Closing Date, Purchaser
shall have delivered to Seller in such form as legal counsel for Seller may
reasonably request, evidence of Purchaser's corporate authority for the
execution, delivery and performance of this Agreement and the other
agreements and instruments to be delivered pursuant hereto and the
transactions contemplated hereby and thereby.
8.2.3 DOCUMENTS. All documents, instruments and agreements
required to be executed and delivered by Purchaser or third parties at the
Closing as contemplated hereby, and such other documents, instruments,
certificates and opinions as Seller shall reasonably request, shall have
been duly executed and delivered by Purchaser and any other parties
required and shall have been received. Purchaser and Seller shall have
entered into an agreement entitled
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"MANUFACTURING AGREEMENT" in form and substance as set forth in Exhibit
8.2.3 hereto.
8.2.4 CONSENTS. All consents, estoppel agreements and
approvals of third parties or any regulatory body or authority, whether
required contractually or by applicable federal, state or local law, or
otherwise necessary for the execution, delivery and performance of this
Agreement by Purchaser, and the execution, delivery and performance of the
Assumption Agreement by Purchaser, and the taking of all other actions to
be taken and the performance of all other obligations to be performed by
Purchaser at Closing, to permit Seller to obtain all of the benefits
contemplated by this Agreement, without interference or claim from any
third party, shall have been delivered to Seller in form and substance
satisfactory to Seller at least two days prior to the Closing Date and
shall not have been withdrawn or revoked.
Notwithstanding the foregoing, the conditions set froth in Sections 8.2.1,
8.2.4 shall be deemed to be satisfied unless the aggregate effect of (i) all
inaccuracies in the Agreement, as of the date hereof, together with (ii) all
further inaccuracies in such representations and warranties as if they were made
again as of the Closing Date and irrespective of any disclosures thereof,
together with (iii) all breaches of agreements and covenants herein by Purchaser
shall be sufficient so that there is a Material Adverse Effect. As used in the
preceding sentence, the term "Material Adverse Effect" means an effect which is
adverse in an amount in excess of $5,000. The consummation of the Closing shall
not be deemed to be a waiver by Seller of any of its rights or remedies
hereunder for breach of warranty, covenant or agreement herein by Purchaser,
irrespective of any investigation made by or on behalf of Seller with respect
thereto prior to the Closing, and irrespective of whether Seller knew or should
have known of any such breach. Seller's indemnification obligations hereunder
and Purchaser's other rights and remedies hereunder shall not be affected by the
existence or non-existence of a Material Adverse Effect.
9. TERMINATION.
9.1 GROUNDS FOR TERMINATION. This Agreement may be terminated at any
time prior to the Closing Date:
(a) by the written agreement of Seller and Purchaser; or
(b) by Seller or by Purchaser, by written notice to the other, if the
Closing shall not have occurred by 5:00 p.m., Eastern Times on April 30,
1997, unless such date is extended by mutual agreement in writing; or
(c) by Seller or by Purchaser, by written notice to the other, if on
the date scheduled for Closing any proceeding or action shall have been
filed seeking to restrain, enjoin or otherwise prevent the consummation of
this Agreement or
17
the transaction contemplated hereby or any order shall have been entered
restraining or prohibiting consummation of the transactions contemplated
hereby.
9.2 EFFECT OF TERMINATION. If this Agreement is terminated as
permitted under Section 9.1, such termination shall be without liability to
either party, except that such termination shall be without prejudice to any and
all remedies the parties may have against each other for any breach of this
Agreement.
10. RECEIVABLES; PAYABLES; APPORTIONMENT.
10.1 RECEIVABLES. If any monies or other assets are received by
Purchaser to which Seller is entitled and that are not included in the Assets,
Purchaser shall hold such monies and assets received by Purchaser in trust for
Seller and shall account for any pay same to Seller within fifteen (15) days of
receipt. If any monies or other assets are received by Seller to which
Purchaser is entitled, and that are included in the Assets, or which represent
prepayments or deposits made by customers or others after the Closing Date with
respect to the purchase of any Inventory or under any Business Arrangements
included within the Assets, Seller shall hold such monies and assets received by
Seller in trust for Purchaser and Seller shall account for and pay same to
Purchaser within fifteen (15) days of receipt.
10.2 LIABILITIES. All liabilities of whatever kind or nature,
whether absolute or contingent, direct or indirect, or fixed or contingent of
Seller, arising from acts, omissions, events, conditions or circumstances
occurring or existing for any period of time on or prior to Closing (whether or
not known by Purchaser), other than the Assumed Obligations, shall be retained
by Seller and shall not be assumed by Purchaser, and Seller covenants and agrees
to pay the same when due or otherwise make adequate provision (according to
terms set forth in writing and acceptable to Purchaser) for the discharge of the
same.
10.3 APPORTIONMENT. Ad valorem and similar taxes imposed by any
taxing authority on the Assets and applicable to periods both prior to and after
the Closing Date with respect to the Assets shall be prorated as of the Closing
Date. Seller and Purchaser shall agree on the amounts owing to Seller by
Purchaser or to Seller resulting from such proration within sixty days after the
Closing Date, and such amounts shall be paid within thirty (30) days thereafter.
10.4 OTHER TAXES. To the extent there are any sales, use, or
similar taxes payable to any taxing authority in any state arising from this
transaction they shall be borne by Seller and Seller agrees to indemnify
Purchaser therefor, except to the extent to do so would violate law, in which
case they shall be borne by Purchaser and collected by Seller for remittance to
the taxing authority. In the event any taxing authority in any state assesses
any such taxes after the Closing, the parties shall follow the procedure set
forth in Section 7.6 with respect thereto. The party responsible for bearing
the tax shall have the right to approve all sales tax information and returns
submitted to tax authorities
18
and to designate the amount of sales tax shown due thereon arising from the
transaction contemplated hereby.
11. CERTAIN BUSINESS AND OTHER ARRANGEMENTS.
11.1 ADDITIONAL ASSIGNMENTS. The parties recognize that a separate
instrument or instruments of assignment and assumption may be necessary or
proper with respect to certain Business Arrangements, Permits and Intellectual
Property Rights, and accordingly, the parties shall duly execute and deliver at
the Closing or thereafter, as required, such separate instrument or instruments
as may be reasonably required to effect the assignment by Seller and assumption
by Purchaser of all Business Arrangements, Permits and Intellectual Property
Rights.
11.2 CONSENTS TO ASSIGNMENTS. Each party shall assist the other in
attempting to obtain any consents required for the assignment of any Business
Arrangements, Permits or Intellectual Property Rights requested by Purchaser
prior to Closing to be included in the Assets. If such consents cannot be
obtained prior to Closing, Seller and Purchaser shall cooperate in any
arrangement reasonably satisfactory to the parties designed to fulfill Seller's
obligations thereunder and to afford Purchaser the benefits thereof.
11.3 NO RECISSION. Rescission of the Agreement shall not be
available as a remedy at law or in equity to either party hereto or their
successors or permitted assigns in the event of a breach of or other default
under this Agreement. Nothing herein contained shall affect any other right or
remedy of either party hereto.
11.4 BOOKS AND RECORDS. Seller shall provide Purchaser with true and
accurate copies of those portions of its Books and Records as are applicable to
the Machine Business or, if such Books and Records or portions thereof are
separate from Seller's regular Books and Records, Seller shall make copies
thereof and deliver the originals to Purchaser. Following Closing, Purchaser
shall give Seller access to the Books and Records for reasonable and lawful
business purposes related to post-Closing events or occurrences affecting Seller
and pertaining to the Assets, including the right to make copies thereof, during
normal business hours. Purchaser shall keep such Books and Records safely and
in good order for a reasonable period of time and for such further periods, at
Seller's expense, as Seller may reasonably request; provided, that Purchaser may
at any time deliver any such Books and records to Seller and shall have access
thereto in the same manner as set forth below.
Seller may keep the originals of books, records and documents as may be
agreed upon in writing by Purchaser prior to Closing. With respect to any such
originals, Seller shall give Purchaser access thereto and the right to make
copies thereof during normal business hours. Seller shall keep such books,
records and documents safely and in good order for a reasonable period of time
following Closing and for such further periods, at Purchaser's expense, as
Purchaser may reasonably request; provided, that Seller may at
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any time deliver such books, records and documents to Purchaser, and Seller
shall have access thereto in the same manner as set forth above.
12. MISCELLANEOUS.
12.1 NOTICE. Any notice required or permitted to be given under this
Agreement shall be in writing, and shall be mailed or delivered to the
addresses, or sent by telecopy to the telecopy numbers, as follows:
SELLER: Newmark, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
PURCHASER Micron Products Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as shall be furnished in writing by such parties, and such
notice shall be effective and be deemed to have been given as of the date
actually received.
To the extent any notice provision in any other agreement, instrument or
document required to be executed or executed by the parties in connection with
the transactions contemplated herein contains a notice provision which is
different from the notice provision contained in this Section 12.1 with respect
to matters arising under such other agreement, instrument or document, the
notice provision in such other agreement, instrument or document shall control.
12.2 AMENDMENTS AND WAIVERS. This Agreement may not be amended or
waived except by an instrument in writing signed on behalf of each of the
parties hereto.
12.3 FURTHER DOCUMENTS. Seller shall, at any time and from time to
time after the Closing, upon request by Purchaser and without further
consideration, execute and deliver such instruments of transfer or other
documents and take such further action as may be reasonably required in order to
convey, transfer, assign and deliver to Purchaser the Assets and the Machine
Business in accordance with this Agreement or to perfect any other undertaking
made by Seller hereunder. Purchaser shall at any time and from time to time
after the Closing, upon request by Seller and without further
20
consideration, execute and deliver such documents and take such further
action as may be reasonably required in order to perfect any undertaking made
by Purchaser hereunder.
12.4 OTHER ASSISTANCE. Purchaser shall, at the request of Seller,
provide reasonable assistance in the collection of information or documents and
make Purchaser's employees available as witnesses when reasonably requested by
Seller. Seller shall reimburse Purchaser for all reasonable out-of-pocket costs
and expenses incurred by Purchaser (including salaries or wages of Purchaser's
employees) in providing said assistance.
12.5 ASSIGNABILITY; ENFORCEABILITY. Neither party shall assign this
Agreement in whole or in part without the prior written consent of the other
party, which consent shall not be unreasonably withheld; provided, however, that
at or after Closing Purchaser may assign this Agreement and any other closing
documents, and its rights and obligations hereunder and thereunder, to any
direct or indirect wholly-owned subsidiary of Purchaser, and Purchaser (or any
such wholly-owned subsidiary) may assign its rights hereunder and under any
other such closing documents to the financial institution(s) or their affiliates
financing or refinancing the transactions contemplated hereby; and provided
further, that upon foreclosure or sale in lieu of foreclosure or deed in lieu of
foreclosure or deed of the Assets or a substantial portion thereof by or to any
such financial institutions or their affiliates, the warranties, representation,
obligations, agreements and indemnities (in Section 7, 10 and elsewhere herein)
between Purchaser and Seller herein and in other documents will inure to the
benefit of such financial institutions (or their affiliates) or any purchaser or
grantee of such Assets. Any assignments made or attempted in violation of this
Section 12.5 shall be void and of no effect.
This Agreement shall be binding on and enforceable by Seller and
Purchaser.
Any provision contained in this Section 12.5 to the contrary
notwithstanding, Seller shall remain liable for and with respect to the
obligations of Seller under this Agreement following any assignment by Seller of
this Agreement or its rights and obligations hereunder, the Purchaser shall
remain liable for an with respect to the obligations of Purchaser under this
Agreement following any assignment by Purchaser of this Agreement or its rights
and obligations hereunder.
Except as set forth in this Section 12.5, and except to the extent
that the Purchaser Indemnified Parties and Seller Indemnified Parties shall be
entitled to the benefits of the indemnities set forth herein, no person or
entity not a party to this Agreement shall have rights under this Agreement as a
third party beneficiary or otherwise.
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12.6 EXHIBITS. The Exhibits (and any appendices thereto) inclusive,
referred to in this Agreement and all amendments thereto from the time of
agreement hereto, are and shall be incorporated herein and made a part hereof.
12.7 SECTIONS AND ARTICLES. All Sections and Articles referred to
herein are sections and articles of this Agreement and all Exhibits referred to
herein are exhibits attached to this Agreement.
12.8 ENTIRE AGREEMENT. This Agreement constitutes the full
understanding of the parties, a complete allocation of risks between them and a
complete and exclusive statement of the terms and conditions of their agreement
relating to the subject matter hereof and supersedes any and all prior
agreements, whether written or oral, that may exist between the parties with
respect thereto. Except as otherwise specifically provided in this Agreement,
no conditions, usage of trade, course of dealing or performance, understanding
or agreement purporting to modify, vary, explain or supplement the terms or
conditions of this Agreement shall be binding unless hereafter made in writing
and signed by the party to be bound, and no modification shall be effected by
the acknowledgment or acceptance of documents containing terms or conditions at
variance with or in addition to those set forth in this Agreement. No waiver by
either party with respect to any breach or default or of any right or remedy and
no course of dealing, shall be deemed to constitute a continuing waiver of any
other breach or default or of any other right or remedy, unless such waiver be
expressed in writing signed by the party to be bound. Failure of a party to
exercise any right shall not be deemed a waiver of such right or rights in the
future.
12.9 HEADINGS. Headings as to the contents of particular articles
and sections are for convenience only and are in no way to be construed as part
of this Agreement or as a limitation of the scope of the particular articles or
sections to which they refer.
12.10. CONTROLLING LAW AND JURISDICTION. THE VALIDITY, INTERPRETATION
AND PERFORMANCE OF THIS AGREEMENT AND ANY DISPUTE CONNECTED HEREWITH SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MASSACHUSETTS
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
12.11 PUBLIC ANNOUNCEMENT. Until the Closing, no press release,
public announcement, confirmation or other information regarding this Agreement
or the contents hereof shall be made by either party without the prior
consultation of the other party, except as may be necessary in the opinion of
counsel of either party to meet the requirements or regulations of any
applicable law, governmental unit or agency or stock exchange on which the
securities of such party may be listed.
12.12 FINDER'S FEES AND COMMISSIONS. Seller and Purchaser agree to
indemnify each other and hold each other harmless from any liability, cost or
expense
22
(including, but not limited to, fees and disbursements of legal counsel)
resulting from any agreement, arrangement or understanding made by the
indemnifying party with any third party for brokerage or finder's fees or
other commissions in connection with this Agreement, the documents and
instruments referred to herein, or the transactions contemplated hereby or
thereby.
12.13 CONFIDENTIALITY AGREEMENTS. At the Closing, any confidentiality
agreements among Seller and Purchaser and any representatives, advisors, lenders
and others acting on behalf of Purchaser shall terminate to the extent they
involve information or documents related exclusively to the Machine Business or
Assets, but shall remain in full force and effect as to other information and
documents. After the Closing Date, without the prior written consent of the
other, (a) Seller shall not, directly or indirectly, use or provide to, and
shall not permit any affiliate, directly or indirectly, to use or provide any
other person any non-public information pertaining to the Machine Business or
the Assets, and (b) Purchaser shall not, directly or indirectly, use or provide
to, and shall not permit any affiliate, directly or indirectly, to use or
provide any other person any non-public information concerning Seller, except to
the extent such non-public information pertains to the Machine Business or the
Assets. Purchaser or Seller, as the case may be, may disclose such non-pubic
information to the extent required by law, provided that notice of the
requirement for such disclosure is given to the other prior to making any
disclosure and the party that is being compelled to make such disclosure
cooperates as the other party may reasonably request in resisting such
disclosure; and further provided, that Purchaser or Seller may disclose such
non-public information to the extent reasonably required in connection with a
proceeding to enforce its rights under this Agreement. Any provision contained
herein to the contrary notwithstanding, this Section 12.13 shall not limit the
right of Purchaser (or any successor or permitted assign) to provide any such
non-public information to its or their lenders, placement agents, underwriters
or advisors.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto on the date first hereinabove
written.
NEWMARK, INC.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
MICRON PRODUCTS INC.
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By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
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