EXHIBIT 2.2
XXXX OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
This Xxxx of Sale, Assignment, and Assumption Agreement is made and
effective as of the 5th day of December, 2001, between TransTechnology
Corporation, a Delaware corporation ("TTC"), and TransTechnology Engineered
Components, LLC, a Delaware limited liability company ("TTEC").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which
is hereby acknowledged, it is hereby agreed as follows:
1. ASSETS ASSIGNED. Except as set forth in Section 2 herein, TTC hereby
sells, contributes, assigns, transfers, conveys, and delivers to TTEC the entire
right, title and interest of TTC in and to all of the assets used in or
necessary for the operation of TTC's unincorporated division known as "The
Palnut Company" ("Palnut"), including, without limitation, all of the following:
a. All of the Equipment (as hereinafier defined) used in or necessary
for the operation of Palnut. As used herein the term "Equipment" means, in
addition to the definition of the term contained in the Uniform Commercial Code
of the State of New Jersey (the "UCC"), all equipment, machinery, furniture,
fixtures, and all other tangible assets, tools, tooling, and controls and
operating accessories therefor.
b. All of the Inventory (as hereinafter defined) used in or necessary
for the operation of Palnut. As used herein the term "Inventory" means, in
addition to the definition of the term contained in the UCC, all goods,
merchandise, or other personal property held for sale or lease or fumished or to
be furnished under any contract of sale or lease, all raw materials, work or
goods in process, finished goods, or materials and supplies of every nature
used, sold, consumed, or to be used, sold or consumed in Palnut's business,
including without limitation all packing and shipping materials.
c. All Accounts (as hereinafter defined) arising from the sale of
Inventory by Palnut. As used herein the term "Accounts" means, in addition to
the definition of the term contained in the UCC, any and all obligations of any
kind due or owing and all rights to receive payment or any other consideration,
whether classified under the UCC as accounts, contract rights, chattel paper,
letter of credit rights or letters of credit, instruments, general intangibles,
or otherwise.
d. All General Intangibles (as hereinafier defined) used in or
necessary for the operation of Palnut. As used herein the term "General
Intangibles" means, in addition to the definition of the term contained in the
UCC, all trade secrets and other proprietary information, trademarks, service
marks, business names, copyrights (including without limitation copyrights for
computer programs) and all tangible property embodying the copyrights; patents
(including without limitation all divisions, renewals, or reissues thereof) and
the variations or modifications and new applications of the technology covered
by the patents; all goodwill associated with any of the foregoing and all
remedies against infringements thereof and rights to protection of interest
therein.
1
e. All rights of TTC under all leases of, and conditional sales
contracts and title retention agreements relating to, Equipment of which Palnut
is the lessee, or which are used in or necessary for the operation of Palnut.
f. All rights of TTC under all contracts or agreements relating
primarily to the operation of Palnut, including, without limiting the generality
of the foregoing:
(i) all unfilled purchase orders received by Palnut for the
purchase of goods; and
(ii) all forward commitments to Palnut for supplies or materials
entered into in the usual and ordinary course of Palnut's
business.
g. All rights of TTC under all licenses, registrations, leases,
clearances, and permits in respect of the assets transferred hereunder or
relating primarily to the operation of Palnut.
h. All general business, financial, tax, and personnel records,
correspondence, and other documents used in or necessary for the business of
Palnut, including, without limitation, customer, distributor, supplier and
mailing lists (including prospective customers), sales materials, and research
and marketing data.
i. All prepaid expenses and deposits made by Palnut.
j. All claims, causes of action, choses in action, rights of recovery
and rights of set-off of any kind in favor of TTC and pertaining to, and to the
extent arising out of, Palnut's business.
k. Pursuant to a Deed in the form attached hereto as EXHIBIT A, all
right, title and interest in and to the real property commonly known as 000 Xxxx
Xxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000, together with all buildings, improvements
and fixtures thereon (the "Palnut Facility").
l. To the extent permitted by law, Palnut's experience incurred prior
to the date hereof for purposes of ratings from and after the date hereof under
New Jersey Workers' Compensation and Employers Liability Insurance.
This transfer is made subject to the continuing security interests in
some or all of the transferred assets held by Fleet National Bank (formerly
known as BankBoston, N.A.), pursuant to the Second Amended and Restated Credit
Agreement dated as of June 30, 1995, and amended and restated as of July 24,
1998, and as further amended and restated as of August 31, 1999, and further
amended by the Consent and Amendment Agreement No. 1 dated August 21, 2000, as
further amended by that certain Amendment Agreement No. 2 dated as of December
29, 2000, and as further amended by that certain Amendment Agreement No. 3 dated
as of January 31, 2001.
2. ASSETS NOT ASSIGNED. Notwithstanding the foregoing, TTC does not sell,
contribute, assign, transfer, convey or deliver to TTEC any rights to the refund
of any tax of any kind paid
2
by TTC prior to the date hereof nor any right, title and interest in any General
Intangibles of TTC that are not used in or necessary for the operation of
Palnut.
3. LIABILITIES ASSUMED. TTEC hereby assumes and agrees to pay and satisfy
in accordance with their terms, all of the following liabilities and obligations
of TTC (collectively, the "Assumed Liabilities"):
a. All trade payables of TTC arising from the purchase of goods and
services by Palnut in the ordinary course of Palnut's business.
b. All obligations of TTC under the following contracts relating to
the operation of Palnut:
(i) all unfilled purchase orders received by Palnut for the
purchase of goods; and
(ii) all forward commitments from Palnut for supplies or
materials entered into in the usual and ordinary course of
Palnut's business.
c. All liabilities and obligations of TTC regarding customer returns
and customer warranty claims for products sold by Palnut on or prior to the date
hereof.
d. All product liability of, and similar claims for injury to person
or property against TTC in connection with any products sold by Palnut on or
prior to the date hereof and any products in the transferred Inventory.
e. All civil, administrative or other claims and/or litigation solely
involving Palnut or related solely to its operations that are pending against
Palnut on or prior to the date hereof or arise from events occurring prior to
the date hereof.
f. All liabilities and obligations of TTC for wages and employment
related taxes and expenses of employees of Palnut that accrue from and after the
ending date of the most recently completed payroll period through the date
hereof.
4. RETAINED LIABILITIES. Notwithstanding the foregoing, TTC shall retain
and shall pay and satisfy without liability to TTEC, the following liabilities
and obligations (collectively, the "Retained Liabilities"):
a. All liabilities and obligations of TTC related to any foreign,
federal, state or local income, capital gain or other tax payable by TTC.
b. All liabilities and obligations arising out of the lawsuit filed in
the Circuit Court, County of Ionia, Michigan as American Bumper & Mfg. Co. v.
TransTechnology Corp. & TRW Inc., No. 97-M-18491-CK, including any further
litigation later arising with respect thereto.
c. All liabilities and obligations in connection with the transfer of
the Palnut Facility related to compliance with the New Jersey Industrial Site
Recovery Act, N.J.S.A. 13:1K-6, et seq.
3
d. All liabilities and obligations in connection with the matter
identified in item 3 of Section 2.2(u)(i) of the Disclosure Schedule to the
Purchase Agreement (as hereinafter defined).
e. The Executive Severance Agreement between TTC and Xxxx Xxxxx dated
January 12, 1998 and Amendment No. 1 thereto dated October 15, 1998 and
Amendment No. 2 thereto dated January 18, 2001.
5. FURTHER ASSURANCES. The parties hereto shall deliver any and all other
instruments or documents, and shall take or cause to be taken all other actions,
required to be delivered or taken pursuant to, or necessary or proper in order
to give effect to, all of the terms and provisions hereof including, without
limitation, all instruments of transfer or other documents as may be necessary
or desirable to transfer ownership or record the transfer of ownership of the
assets purported to be transferred hereunder or to evidence the assumption of
the Assumed Liabilities and/or retention of the Retained Liabilities. If any of
the contracts or agreements or any other property or rights included in the
assets purported to be transferred hereby are not assignable or transferable
either by virtue of the provisions thereof or under applicable law without the
consent of some party, TTC shall use all commercially reasonable efforts to
obtain such consent as soon as possible and such consent shall be treated as
being effective as of the date hereof. If such consent to assignment or transfer
is not obtained, or if an attempted assignment or transfer thereof would be
ineffective or would adversely affect the rights of TTC thereunder so that TTEC
would not in fact receive all such rights thereunder, then TTC shall use all
commercially reasonable efforts to obtain for TTEC the benefits that TTEC would
have obtained if such asset could have been assigned or transferred to TTEC.
TTEC shall use all commercially reasonable efforts to assist in that endeavor.
TTC shall promptly pay to TTEC, when received, all moneys received by it in
respect to any asset purported to be transferred hereunder which is not
assignable or transferable or any claim or right or any other benefit arising
therefrom.
6. POWER OF ATTORNEY. TTC hereby constitutes and appoints TTEC, its
successors and assigns, TTC's true and lawful attorney, with full power of
substitution, in TTC's name and stead, but on behalf of and for the benefit of
TTEC, its successors and assigns, to demand and receive any and all of the
assets transferred hereunder and to give receipts and releases for and in
respect of the same, and from time to time to institute and prosecute in TTC's
name, or otherwise, at the expense and for the benefit of TTEC, its successors
and assigns, any and all proceedings at law, in equity, or otherwise, which
TTEC, its successors or assigns, may deem proper for the collection or reduction
to possession of any of the assets transferred hereunder or for the collection
and enforcement of any claim or right of any kind hereby sold, contributed,
assigned, transferred, conveyed, or delivered to TTEC. TTC hereby declares that
the foregoing powers are coupled with an interest and are and shall be
irrevocable by TTC in any manner or for any reason whatsoever.
7. RECORDING FEES AND TRANSFER TAXES. TTC shall be responsible for all
recording fees, transfer taxes, and similar charges levied or assessed in
connection with the transfer of assets hereunder and the perfection and
documentation of TTEC's ownership thereof.
8. NO RIGHTS IN THIRD PARTIES. Nothing expressed or implied herein is
intended to confer upon any person, other than the parties hereto and their
respective successors and assigns, any rights, remedies, obligations, or
liabilities under or by reason hereof; PROVIDED, HOWEVER, that
4
the parties hereto acknowledge and agree that no provision of this Agreement
shall limit in any respect the rights and obligations of any party to the
Amended and Restated Share and Limited Liability Membership Interest Purchase
Agreement dated as of August 23, 2001 between TTC and KTIN Acquisition, LLC to
the extent such rights and obligations arise thereunder.
9. AMENDMENT. This Xxxx of Sale, Assignment, and Assumption Agreement may
not be amended or modified except by an instrument in writing signed by the
parties hereto.
10. GOVERNING LAW. This Xxxx of Sale, Assignment, and Assumption Agreement
shall be governed by, and construed in accordance with the laws of the State of
New Jersey, excluding those regarding conflicts of laws.
IN WITNESS WHEREOF, TTC and TTEC have duly executed this Xxxx of Sale,
Assignment, and Assumption Agreement as of the day and year first above written.
TRANSTECHNOLOGY CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
XXXXXX X. XXXXXXX,
Vice President, CFO & Treasurer
TRANSTECHNOLOGY ENGINEERED
COMPONENTS, LLC, a Delaware limited
liability company
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
XXXXXX X. XXXXXX,
Vice President and Secretary
5
