AMENDMENT NO. 1 TO PURCHASE AND SALE AGREEMENT
This Amendment No. 1 to Purchase and Sale Agreement (the "Amendment")
dated November 26, 1996, is by and among Polaroid Corporation, a Delaware
corporation, with its principal place of business at 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Seller"), SDI Holding Corp., a Delaware
corporation, with its principal place of business at Glasgow Business
Community, Building 000, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 ("Parent"),
Sterling Diagnostic Imaging, Inc., a wholly-owned subsidiary of Parent and
a Delaware corporation, with its principal place of business at Glasgow
Business Community, Building 000, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000
("Sterling"), and Sterling Dry Imaging Systems, Inc., a wholly-owned
subsidiary of Sterling and a Delaware corporation with its principal place
of business at Glasgow Business Community, Building 000, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000 ("Buyer").
W I T N E S S E T H, That:
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WHEREAS, Buyer, Seller, Parent and Sterling entered into a Purchase
and Sale Agreement dated October 30, 1996 (the "Agreement"), pursuant to
which Seller has agreed to sell certain of its assets to Buyer and Buyer
has agreed to purchase certain assets of Seller (the "Acquisition"); and
WHEREAS, Seller, Buyer, Parent and Sterling desire to amend, modify
and supplement the Agreement with respect to various other matters set
forth herein;
NOW, THEREFORE, subject to the terms, conditions, covenants and
provisions of this Agreement and in reliance on the representations,
warranties and covenants contained in this Agreement, Seller, Buyer,
Sterling and Parent mutually covenant and agree as follows:
1. Definitions.
(a) All capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
Agreement.
(b) Article 1 of the Agreement is hereby amended by deleting Sections
1.22, 1.38, 1.51 and 1.52 in their entirety and replaced in their entirety
with the following:
1.22 "Contracts" means the U.S. Contracts, the
International Equipment Contracts and the International Film
Contracts.
1.38 "Film Assets" means the U.S. Film Assets and the
International Film Assets.
1.51 "Inventory" means the U.S. Inventory and the International
Inventory.
1.52 "Inventory Value" means the book value of the U.S.
Inventory determined in accordance with GAAP and Seller's
standard costing basis.
(c) Article 1 of the Agreement is hereby amended by deleting Sections
1.25, 1.26, 1.29 and 1.39 in their entirety therefrom:
(d) Article 1 of the Agreement is hereby further amended by adding
the following definitions thereto. Seller, Buyer, Sterling and Parent
intend that such definitions shall be placed in the appropriate
alphabetical order within Article 1, that Article 1 shall be renumbered
accordingly and that all cross-references to definitions within Article 1
shall be automatically changed.
"International Assets" means the International Equipment
Assets and the International Film Assets.
"International Equipment Assets" has the meaning ascribed in
Section 2.03 of this Agreement.
"International Equipment Contracts" has the meaning ascribed
in Section 2.03 of this Agreement.
"International Equipment Machinery and Equipment" has the
meaning ascribed in Section 2.03 of this Agreement.
"International Equipment Permits" means all rights in and to
product registrations and approvals and other rights granted by
Non-United States Governmental Authorities used primarily with
respect to the Equipment Product Line and listed on Schedule
1.29(b).
"International Film Assets" has the meaning ascribed in
Section 2.04 of this Agreement.
"International Film Contracts" has the meaning ascribed in
Section 2.04 of this Agreement.
"International Inventory" has the meaning ascribed in
Section 2.03 of this Agreement.
"U.S. Assets" means the U.S. Equipment Assets and the U.S.
Film Assets.
"U.S. Contracts" means the U.S. Film Contracts and the U.S.
Equipment Contracts.
"U.S. Equipment Assets" has the meaning ascribed in Section
2.01 of this Agreement.
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"U.S. Equipment Contracts" has the meaning ascribed in
Section 2.01 of this Agreement.
"U.S. Equipment Machinery and Equipment" has the meaning
ascribed in Section 2.01 of this Agreement.
"U.S. Equipment Permits" means all rights in and to product
registrations and approvals and other rights granted by United State
Federal and State Governmental Authorities used primarily with respect to
the Equipment Product Line and listed on Schedule 1.29(a).
"U.S. Film Assets" has the meaning ascribed in Section 2.02
of this Agreement.
"U.S. Film Contracts" has the meaning ascribed in Section
2.02 of this Agreement.
"U.S. Inventory" has the meaning ascribed in Section 2.01 of
this Agreement.
2. Assets.
The parties to this Amendment desire to amend Article 2 of the
Agreement to provide for the transfer of certain of the Assets from
Subsidiaries of Seller to Subsidiaries of Sterling. In connection
therewith, Article 2 of the Agreement is hereby deleted in its entirety and
replaced in its entirety with the following:
ARTICLE 2
ASSETS
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Upon the terms and subject to the conditions contained in
this Agreement, Seller agrees to grant, sell, convey, assign,
transfer and deliver or, if applicable, cause its Subsidiaries to
grant, sell, convey, assign, transfer and deliver unto Buyer or
Subsidiaries of Sterling, as the case may be, and Buyer agrees to
purchase, accept and take delivery of, or, if applicable, cause
certain of Sterling's Subsidiaries to purchase, accept and take
delivery of, unless otherwise expressly set forth herein, the
following assets, unless otherwise indicated herein (hereinafter
collectively referred to as the "Assets"):
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2.1 United States Equipment Assets. The assets owned by
Seller, other than Laser Diode Assets, used primarily with
respect to the Equipment Product Lines (hereinafter collectively
referred to as the "U.S. Equipment Assets") including (a) the
manufacturing equipment, manufacturing procedures, drawings and
designs, bills of materials, tools, laboratory equipment,
research items, computer hardware and other related equipment
(the "U. S. Equipment Machinery and Equipment") described in
Schedule 2.01(a) attached hereto, (b) except for the items
disclosed in Schedule 2.01(d), which shall be considered U.S.
Inventory, finished equipment, spare parts, service parts, and
supplies (other than U.S. Inventory) at customer locations or in
the possession of sales and service personnel to which Seller has
retained title, wherever located, as set forth on Schedule
2.01(b), (c) except those not assignable under applicable law,
the U. S. Equipment Permits, (d) the inventories of raw
materials, feedstocks, stores, work in process, finished goods,
spare parts, service parts, supplies and packaging materials held
for use or generated with respect to the Equipment Product Lines,
wherever located, including, without limitation, that set forth
as Schedule 2.01(d) (the "U. S. Inventory"), (e) all rights and
obligations under sales orders and contracts, purchase orders and
contracts, distribution agreements, customer agreements, supply
agreements, service agreements, development agreements,
consulting agreements and other contracts or agreements (other
than those relating to Equipment Intellectual Property Rights)
described in Schedule 2.01(e), and all rights under express or
implied representations and warranties from providers of goods or
services with respect to the Equipment Product Lines (the "U. S.
Equipment Contracts"), and (f) the rights delineated in the
Intellectual Property Rights Agreement regarding the Equipment
Intellectual Property Rights.
2.2 United States Film Assets. The following assets owned
by Seller (hereinafter collectively referred to as the "U. S.
Film Assets"): (a) all rights and obligations under sales orders
and contracts, distribution agreements, marketing related
consulting agreements and customer agreements (other than those
relating to Film Intellectual Property Rights) described in
Schedule 2.02, (the "U. S. Film Contracts") and (b) the rights
delineated in the Intellectual Property Rights Agreement related
to the Film Intellectual Property Rights.
2.3 International Equipment Assets. The assets owned by a
Subsidiary of Seller and used primarily with respect to the
Equipment Product Lines (hereinafter collectively referred to as
the "International Equipment Assets") including (a) the
manufacturing equipment, manufacturing procedures, drawings and
designs, bills of materials, tools, laboratory equipment,
research items, computer hardware and other related equipment
(the "International Equipment Machinery and Equipment") described
in Schedule 2.03(a) attached hereto, (b) except for the items
disclosed in Schedule 2.03(d), which shall be considered
Inventory, finished equipment, spare parts, service parts, and
supplies (other than Inventory) at customer locations or in the
possession of sales and service personnel to which any Subsidiary
of Seller has retained title, wherever located, as set forth on
Schedule 2.03(b), (c) except those not assignable under
applicable law, the International Equipment Permits, (d) the
inventories of raw materials, feedstocks, stores, work in
process, finished goods, spare parts, service parts, supplies and
packaging materials held for use or generated with respect to the
Equipment Product Lines, including, without limitation, that set
forth as Schedule 2.03(d) (the "International Inventory"),
(e) all rights and obligations under sales orders and contracts,
purchase orders and contracts, distribution agreements, customer
agreements, supply agreements, service agreements, development
agreements, consulting agreements and other contracts or
agreements (other than those relating to Equipment Intellectual
Property Rights) described in Schedule 2.03(e), and all rights
under express or implied representations and warranties from
providers of goods or services with respect to the Equipment
Product Lines (the "International Equipment Contracts").
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2.4 International Film Assets. The following assets owned
by a Subsidiary of Seller (hereinafter collectively referred to
as the "International Film Assets"): all rights and obligations
under sales orders and contracts, distribution agreements,
marketing related consulting agreements and customer agreements
(other than those relating to Film Intellectual Property Rights)
described in Schedule 2.04, (the "International Film Contracts").
3. Purchase Price.
The parties to this Amendment desire to amend Sections 3.01, 3.04,
3.07 and 3.08 of the Agreement to provide for the transfer of certain of
the Assets from Subsidiaries of Seller to Subsidiaries of Sterling. In
connection therewith, Sections 3.01, 3.04, 3.07 and 3.08 are hereby deleted
in their entirety and are hereby replaced in their entirety with the
following:
3.1 Assumption of Liabilities. Except as provided in Section
3.02, Buyer shall assume and agree to pay, discharge and perform
when due all obligations (whether known or unknown, fixed or
contingent) to the extent (but only to the extent) that they relate
to events or conditions arising after the Closing under the U.S.
Contracts assigned by Seller to Buyer in accordance with this
Agreement (the "Assumed Liabilities"), including, but not limited
to, (i) obligations to sell products and equipment under such U. S.
Contracts, (ii) warranty obligations under such U.S. Contracts with
respect to goods sold or services rendered under such U. S.
Contracts, and (iii) obligations to service equipment purchased or
leased from Buyer after the Closing Date, unless a U. S. Contract
is terminated by the other party thereto due to an improper
assignment by Seller or its Subsidiaries; provided that, upon
receipt of an invoice from Buyer, Seller or its Subsidiaries shall
promptly reimburse Buyer or its Affiliates (a) for all costs and
expenses incurred by Buyer or Buyer's Affiliates in performing the
obligations set forth in subsection (ii) above with respect to
Laser Imagers and Laser Film sold by Seller prior to the Closing
Date, and (b) in an amount equal to the pro rata revenues received
by Seller for the performance by Buyer or its Affiliates of
equipment service on equipment purchased or leased from Seller or
its Subsidiaries prior to the Closing Date.
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3.04 Initial Inventory Value. The Parties have agreed that
the initial Inventory Value as of September 30, 1996, is
$29,209,875 (the "Initial Inventory Value"). The Initial Inventory
Value multiplied by 95% is $27,749,382, and such amount shall be
referred to herein as the "Estimated Initial Inventory Value."
3.07 Sales, Use, Transfer and Similar Taxes and Charges.
Seller shall bear and pay all sales, use or stamp taxes and any
transfer, transfer gain, documentation, gross receipts, custom
duties, value added, withholding tax, recording, filing and
registration fees and other taxes and charges, as well as all
interest and penalties thereon payable upon or with respect to the
sale or transfer of the U. S. Assets by Seller to Buyer pursuant to
this Agreement (collectively the "Transfer Charges").
Notwithstanding the foregoing, Buyer shall be required to pay all
Transfer Charges for which a refund, recoupment or credit is
available to Buyer, and Buyer shall be entitled to obtain and keep
such refund, recoupment or credit; provided, however, that Seller
shall reimburse Buyer for any Transfer Charges paid by Buyer for
which a refund, recoupment or credit is available but which is not
recovered or recouped by Buyer within twelve (12) months of the
Closing Date. If Buyer thereafter receives a refund, recoupment or
credit of all or any portion of any Transfer Charge for which
Seller has reimbursed Buyer, Buyer shall reimburse Seller in an
amount equal to such refund, recoupment or credit. Subject to the
foregoing sentence, to the extent any applicable law or regulation
imposes upon a Party the obligation to pay Transfer Charges to be
borne by a Party pursuant to the preceding sentences and such
Transfer Charges are paid by such other Party, the Party
responsible for such Transfer Charges pursuant to the two preceding
sentences shall promptly reimburse such paying Party therefor upon
receipt of such paying Party's invoice for the amount of such
payments.
3.08 Purchase Price Adjustment. In the event there shall be
an inaccuracy in any of the representations or warranties of Seller
or a breach by Seller of one or more covenants to be performed by
Seller prior to Closing or an inaccuracy in any of the
representations or warranties of any Subsidiary of Seller or a
breach by a Subsidiary of Seller of one or more covenants to be
performed by such Subsidiary herein or in any documents executed by
such Subsidiary in connection with the transactions contemplated
hereby, which inaccuracy or breach is Material and such inaccuracy
or breach does not constitute a failure of the conditions to
Buyer's or its Subsidiaries' obligations to close as set forth in
Section 12.02(a), or there shall be a Material loss or damage to
any of the Assets as a result of fire or other casualty and Seller
does not elect to restore such Assets as provided in Section 8.09,
the Parties shall use all reasonable efforts to agree prior to
Closing to a downward adjustment to the Purchase Price in an amount
equal to the decline in value of any of the Assets resulting from
such inaccuracy, breach, loss or damage. In this regard, the
decline in value shall be on a dollar-for-dollar basis for balance
sheet items and, with respect to other items affecting value, shall
be as mutually agreed by the Parties. If the Parties are unable to
agree on the amount of the Purchase Price adjustment prior to
Closing, and all of the conditions to the obligations of the
Parties to close have been satisfied or waived, the Parties shall
proceed to close the transaction contemplated hereby and the
disagreement regarding the amount of the Purchase Price adjustment
shall be resolved in accordance with the dispute resolution
procedure described in Section 3.05(b), with the 30-day period
referred to in the first sentence thereof beginning on the Closing
Date. Once such disagreement is resolved, Seller, or its
Subsidiary, as the case may be, shall then pay to Buyer, or its
Subsidiary, as the case may be, the amount of such adjustment, if
any, with interest at the rate provided in Section 3.05(d)(i) from
the Closing Date through the date of payment. Notwithstanding
anything herein to the contrary, no downward adjustment in the
Purchase Price shall be made under this Section 3.08 to the extent
that the amount thereof is subject to adjustment under the
Inventory evaluation procedures elsewhere in this Article 3.
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4. Tax Allocation.
The parties to this Amendment desire to amend Section 3.03(c) of the
Agreement to delete the concept of an agreed allocation of the Purchase
Price among the various categories of Assets and other rights to be
transferred pursuant to or otherwise acquired by Buyer pursuant to the
Agreement. In connection therewith, Paragraph (c) of Section 3.03 is hereby
deleted in its entirety and is hereby replaced in its entirety with the
following:
(c) Buyer and Seller each intend that the transaction
contemplated by this Agreement constitutes a taxable sale of the
Assets by the Seller and a purchase of the Assets by the Buyer, and
Buyer and Seller shall report such transaction on all of their
income tax returns in a manner consistent with such intention.
Buyer and Seller shall each separately bear any risks associated
with the income tax characterization of such transaction.
5. Seller's Representations and Warranties.
The parties to this Amendment desire to amend Article 4 of the Agreement
to include Subsidiaries of Seller within the representations and warranties
of Seller. In connection therewith, Article 4 is hereby deleted in its
entirety and is hereby replaced in its entirety with the following:
ARTICLE 4
SELLER'S REPRESENTATIONS AND WARRANTIES
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Seller represents and warrants to Buyer, Sterling and Parent
that as of the date of this Agreement and the Closing Date:
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4.01 Organization; Good Standing. Seller and its Subsidiaries
are corporations duly organized, validly existing and in good
standing under the laws of their respective jurisdictions of
incorporation and each of them has full corporate power and
authority to own, operate and maintain the Assets as now being
owned and operated by it. Seller has full corporate power and
authority to execute and deliver this Agreement and each of the
Seller Related Documents and to perform its obligations hereunder
and thereunder. Seller and its Subsidiaries have full corporate
power and authority to execute the other agreements contemplated in
this Agreement to which any of them is a party and to perform their
respective obligations thereunder. Seller is duly qualified or
licensed to transact business in all of the jurisdictions in which
such qualification or licensing is required, except where the
failure to be so qualified or licensed would not be Material.
4.02 No Conflict with Other Instruments or Agreements. The
execution, delivery and performance of this Agreement by Seller,
the execution, delivery and performance of each of the Seller
Related Documents by Seller and the execution, delivery and
performance of any other agreements contemplated in this Agreement
by Seller or any of its Subsidiaries and the consummation of the
transactions contemplated by this Agreement, the Seller Related
Documents and such other agreements by Seller or any of its
Subsidiaries, as applicable, will not:
(a) violate any provision of the Certificate of
Incorporation, Bylaws or similar constitutional documents of Seller
or any of its Subsidiaries or any law, regulation, ordinance,
statute, rule, order, judgment, writ, ruling, award, edict or
decree of any Governmental Authority by which Seller or any of its
Subsidiaries or any of the Assets may be bound or otherwise
affected; or
(b) conflict with, result in a breach of the terms and
conditions of or violation of, or result in the imposition of any
Lien on or with respect to any of the Assets as a result of the
provisions of, or cause a default or termination under, any
mortgage, indenture, loan agreement, lease, commitment, agreement
or other instrument to which Seller or any of its Subsidiaries is a
party or by which it or any of the Assets may be bound or affected.
4.03 Authorization; Binding Effect. Seller has full power and
authority to perform the provisions of this Agreement and the
Seller Related Documents. Seller and its Subsidiaries have full
power and authority to perform the provisions of any other
agreement contemplated in this Agreement to which any of them is a
party, and this Agreement constitutes, and the Seller Related
Documents and such other agreements when executed and delivered by
Seller or its Subsidiaries, as the case may be, pursuant to the
terms hereof, will constitute, the legal, valid and binding
obligations of Seller or its Subsidiaries, as the case may be,
enforceable against Seller or its Subsidiaries, as the case may be,
in accordance with their respective terms, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or 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).
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4.04 Litigation and Investigations. Except as may be
disclosed in Schedule 4.04 or in the Intellectual Property Rights
Agreement, there is no litigation, action, investigation,
administrative or judicial complaint, notice of violation,
grievance, demand, controversy, audit, claim or proceeding
(collectively referred to as "Proceedings") by or before any court,
arbitration panel, governmental or quasi-governmental agency,
tribunal, department, commission, board, bureau, agency or
instrumentality of the United States, any foreign jurisdiction, any
state, province or political subdivision thereof or other Person or
body acting in an arbitration, regulatory or judicial capacity
(collectively referred to as "Governmental Authorities") or brought
or made by any third party (including employees, former employees,
their dependents and beneficiaries and any party representing any
of them) pending or, to the knowledge of Seller or its
Subsidiaries, threatened against Seller or any of Seller's
Subsidiaries as a result of their ownership, use, maintenance or
operation of any of the Assets or contesting the rights of Seller
or any of its Subsidiaries in and to any of the Assets, or relating
to the limitation or revocation (or the expiration) of any
Equipment Permits, or against the Seller 401(k) Plan or the Seller
Pension Plans or any fiduciaries thereof in their capacities as
such for any reason whatsoever and neither Seller nor any of its
Subsidiaries has received any notice from any Person or
Governmental Authority threatening to institute same. The
ownership, use, maintenance and operation of the Assets and the
Seller 401(k) Plan and the Seller Pension Plans are not subject to
any injunction, order, judgment, writ or decree.
4.05 Title to Property. Seller or one of its Subsidiaries, as
the case may be, has good, clear and marketable title to each of
the Assets, free and clear of any and all liens, charges, pledges,
filed or unfiled liens related to Taxes, mortgages, security
interests, deeds of trust, leases, licenses, burdens, restrictions
and other encumbrances (collectively, the "Liens") except for
statutory Liens of lessors, carriers, warehousemen, mechanics,
materialmen and other Liens imposed by law for sums not yet
delinquent and other Liens described in Schedule 4.05, or, as to
the Intellectual Property Rights, as described in the Intellectual
Property Rights Agreement. None of the Assets are leased from a
third party, and, except to the extent not Material, no third party
has any option or right of first refusal to purchase all or any
part of the Assets.
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4.06 Contracts and Other Agreements and Instruments. True and
correct copies of the Contracts and the Equipment Permits have been
made available to Buyer for review, at Seller's or Seller's
Subsidiaries' present repositories for the same. No other party to
or grantor of any Contract or Equipment Permit has given written
notice to Seller or any of its Subsidiaries that it considers
Seller or any of its Subsidiaries to be in breach thereof. Neither
Seller nor any of its Subsidiaries nor any other party thereto or
grantor thereof is in default under, in breach of or in violation
of (and no condition exists that, with notice or lapse of time or
both, would constitute such a default, breach or violation) any
Contract or Equipment Permit.
4.07 Compliance with Laws; Governmental Consents.
(a) Seller and its Subsidiaries have obtained and
maintained all permits required by any applicable law, rule or
regulation or Governmental Authorities or necessary or appropriate
for Seller or its Subsidiaries to own, occupy, operate and/or
maintain the Assets as being, owned, operated, maintained and used
on the date of this Agreement and the Closing Date, the absence of
which would be Material.
(b) Except for an H-S-R Filing and except as set forth
in Schedule 4.07(b), no consent, authorization, or approval of, or
exemption by, or filing with, any Governmental Authorities or self-
regulatory body or authority or any non-governmental third party is
required in connection with the execution, delivery and performance
by Seller of this Agreement or of any of the Seller Related
Documents, or by Seller or any of its Subsidiaries of any agreement
contemplated in this Agreement or the taking by Seller or any of
its Subsidiaries of any action herein or therein contemplated.
4.08 Brokers or Finders. Neither Seller nor any of its
Subsidiaries has incurred an obligation or liability, contingent or
otherwise, for broker's or finder's fees with respect to the
matters provided for in this Agreement or any agreement
contemplated in this Agreement and for which Buyer or any of its
Affiliates will be responsible.
4.09 Labor and Employment Matters. With respect to the
employees of Seller and its Subsidiaries associated with any of the
Assets, neither Seller nor any of its Subsidiaries has entered into
any collective bargaining agreements or other contracts with a
labor union, contingent or otherwise, such employees are not
subject to any collective bargaining agreements or other contracts
with a labor union, contingent or otherwise, nor are any such
employees, in their capacities as employees, represented by any
labor union. With respect to employees of Seller and it
Subsidiaries associated with any of the Assets, neither Seller nor
any of its Subsidiaries has experienced a work stoppage,
organizational effort or other Material labor disturbance within
the past three years. To the best knowledge of Seller or any of
its Subsidiaries, there are no organizational efforts currently
being made or threatened by or on behalf of any labor union with
respect to any of the employees of Seller or any of its
Subsidiaries associated with any of the Assets.
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4.10 Completeness of Certain Assets. Except as set forth in
Schedule 4.10, the Assets being transferred to, or the rights to
which are being granted or made available to, Buyer or its
Subsidiaries pursuant hereto or to any agreement contemplated in
this Agreement include all assets primarily used by Seller or any
of its Subsidiaries in the operation of the Equipment Product
Lines.
4.11 Maintenance. The Assets currently in use have been
properly maintained in accordance with normal industry practice and
are in operating condition and repair (subject to normal wear and
tear) such that they are capable of being used without present need
for repair, replacement or modification or the addition of
equipment, except in the ordinary course of business.
4.12 Requested Financial Statements. The Requested Financial
Statements will be prepared in accordance with GAAP consistently
applied and will be complete and correct and will fairly present,
in all material respects (to the extent covered thereby), the
revenues, expenses, cash flows, assets, liabilities and other
matters required to be set forth therein for the periods indicated.
Buyer will not make any change in the Requested Financial
Statements without the prior consent of Seller, which shall not be
unreasonably withheld.
4.13 Securities Matters.
(a) Seller acknowledges that the Buyer Preferred Stock,
the Parent Preferred Stock, the Parent Common Stock, the Parent
Stockholder Options, the Buyer Common Stock and the common stock of
Parent transferred to Seller upon exercise of the Parent
Stockholder Options (the "Option Stock") have not been registered
under the Securities Act of 1933, as amended and applicable state
securities laws (collectively the "Acts") in reliance on available
exemptions from the registration requirements thereof. The Buyer
Preferred Stock, the Parent Preferred Stock, the Parent Common
Stock, the Parent Stockholder Options, the Buyer Common Stock and
the Option Stock are sometimes collectively referred to herein as
the "Securities."
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(b) Seller has had access to and an opportunity to
inspect all relevant information relating to Buyer, Parent and
Sterling sufficient to enable Seller to evaluate the merits and
risks of its acquisition of the Securities. Seller also has had
the opportunity to ask questions and receive answers respecting,
and to obtain such additional information as Seller has desired
regarding, the business, financial condition and affairs of Buyer,
Parent and Sterling.
(c) Seller has such knowledge and experience in
financial and business matters that Seller is capable of evaluating
the merits and risks of its acquisition of the Securities.
(d) Seller's acquisition of the Securities is and the
acquisition by Seller of the Option Stock upon exercise of the
Parent Stockholder Options will be, for Seller's own account for
investment purposes, and without a view to, or for offer or sale on
behalf of Buyer, Sterling or Parent or any of the existing
stockholders of Parent in connection with, the distribution thereof
or any portion thereof. Seller is not participating and does not
have a participation in any such distribution or the underwriting
of any such distribution.
(e) Seller understands that the Securities must be held
for an indefinite period of time unless subsequently registered
under the Acts or exemptions from the registration requirements
thereof are available.
(f) Seller has been advised by Buyer and Parent that (i)
Rule 144 under the Securities Act at present is not applicable to
the Securities and (ii) registration under the Acts or exemptions
from the registration requirements thereof will be required for any
subsequent sale or other distribution of the Securities.
4.14 Employee Benefits. There are no liabilities, breaches,
violations or defaults under any plan, arrangement or contract
sponsored or maintained by Seller or any of its Subsidiaries under
which any Transferred Employee is entitled to any benefit that
would subject Buyer, Sterling, Parent or their respective
Subsidiaries or their respective employee benefit plans or any
fiduciaries thereof to any taxes, penalties or other liabilities.
4.15 Investment Company; Public Utility. Neither Seller nor
any of its Subsidiaries is an "investment company" or a company
"controlled" by an investment company (as defined in the Investment
Company Act of 1940, as amended) or a "holding company" or a
"public utility" (as defined in the Public Utility Holding Company
Act of 1935, as amended).
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4.16 No Other Representations and Warranties. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SELLER RELATED
DOCUMENTS OR ANY OTHER AGREEMENTS CONTEMPLATED IN THIS AGREEMENT,
NEITHER SELLER NOR ANY SUBSIDIARY OF SELLER NOR ANY AGENT OR
REPRESENTATIVE OF SELLER OR ANY SUBSIDIARY OF SELLER HAS MADE, AND
NEITHER SELLER NOR ANY SUBSIDIARY OF SELLER IS LIABLE FOR OR BOUND
IN ANY MANNER BY, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, OR ANY EXPRESS OR IMPLIED WARRANTIES,
GUARANTEES, PROMISES, STATEMENTS, INDUCEMENTS, REPRESENTATIONS, OR
INFORMATION PERTAINING TO THE ASSETS OR ANY PART THEREOF, AND
WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, THE SELLER RELATED DOCUMENTS OR ANY OTHER
AGREEMENTS CONTEMPLATED IN THIS AGREEMENT, NEITHER SELLER NOR ANY
SUBSIDIARY OF SELLER IS LIABLE FOR OR BOUND BY (AND NONE OF BUYER,
STERLING OR PARENT HAS RELIED UPON) ANY VERBAL OR WRITTEN
STATEMENTS, REPRESENTATIONS, OR ANY OTHER INFORMATION RESPECTING
ANY PORTION OF THE ASSETS FURNISHED BY SELLER OR ANY SUBSIDIARY OF
SELLER OR ANY EMPLOYEE, AGENT OR OTHER PERSON REPRESENTING OR
PURPORTEDLY REPRESENTING SELLER OR ANY SUBSIDIARY OF SELLER. BUYER
ACKNOWLEDGES THAT THE OPERATION OF THE ASSETS IN THE PAST HAS
PRODUCED LOSSES AND THAT NO REPRESENTATION IS MADE BY SELLER OR ANY
SUBSIDIARY OF SELLER AS TO THE FUTURE SUCCESS OR PROFITABILITY OF
THE ASSETS OR THE PRODUCTS PRODUCED THEREBY.
6. Authorized Shares of Buyer.
The parties to this Amendment desire to amend Section 5.01(c)(i)of the
Agreement to delete the language regarding the possibility of increasing the
number of authorized shares of capital stock of Buyer. In connection
therewith, Paragraph (c)(i) of Section 5.01 is hereby deleted in its
entirety and is hereby replaced in its entirety with the following:
(c)(i) The entire authorized capital stock of Buyer
consists of 54,500 shares, of which 2,000 shares are common stock,
$0.01 par value per share, and 52,500 shares are preferred stock,
par value $0.01 per share, of which, prior to giving effect to the
issuance of the Buyer Common Stock and the Buyer Preferred Stock,
1,000 shares of common stock and none of the shares of preferred
stock are validly issued and outstanding, fully paid and non-
assessable.
7. Representations and Warranties of Sterling.
The parties to this Amendment desire to amend Sections 5.02 and 5.04 of
the Agreement to include Subsidiaries of Sterling in the representations and
warranties of Sterling and Parent. In connection therewith, Sections 5.02
and 5.04 are hereby deleted in their entirety and are hereby replaced in
their entirety with the following:
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5.02 Representations and Warranties Regarding Sterling.
Sterling and Parent jointly and severally represent and warrant to
Seller that as of the date of this Agreement and the Closing Date:
(a) Sterling and its Subsidiaries are corporations duly
organized, validly existing and in good standing under the laws of
the jurisdictions of their incorporation and each of them has full
corporate power and authority to execute and deliver this
Agreement, each of the Buyer Related Documents and each other
agreement contemplated in this Agreement to which they are a party
and to perform their respective obligations hereunder and
thereunder. Sterling is duly qualified or licensed to transact
business in all of the jurisdictions in which such qualification or
licensing is required, except where the failure to be so qualified
or licensed would not be Material.
(b) Sterling and its Subsidiaries have full power and
authority to perform the provisions of this Agreement, the Buyer
Related Documents and each other document contemplated in this
Agreement to which they are a party, and this Agreement
constitutes, and the Buyer Related Documents and the other
documents contemplated in this Agreement, when executed and
delivered by Sterling or its Subsidiaries, as the case may be,
pursuant to the terms hereof, will constitute, the legal, valid and
binding obligations of Sterling or its Subsidiaries, as the case
may be, enforceable against Sterling or its Subsidiaries, as the
case may be, in accordance with their respective terms, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or 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) (i) The entire authorized capital stock of Sterling
consists of 11,000 shares, of which 10,000 shares are common stock,
$0.01 par value per share, and 1,000 shares are preferred stock,
par value $0.01 per share, of which 1,000 shares of common stock
and none of the shares of preferred stock are validly issued and
outstanding, fully paid and non-assessable.
(ii) Sterling has acquired the 1,000 shares of
common stock of Buyer solely in consideration of services rendered,
and not for any cash or property, and as of Closing, such shares
may be transferred to Parent.
(d) The execution, delivery and performance of this
Agreement by Sterling, the execution, delivery and performance of
each of the Buyer Related Documents by Sterling to which it is a
party and the execution, delivery and performance of any other
agreements contemplated in this Agreement by Sterling or any of its
Subsidiaries and the consummation of the transactions contemplated
by this Agreement, each of the Buyer Related Documents to which
Sterling is a party and any other agreements contemplated by this
Agreement will not:
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(i) violate any provision of the Certificate of
Incorporation, Bylaws or similar constitutional documents of
Sterling or any of its Subsidiaries or any law, regulation,
ordinance, statute, rule, order, judgment, writ, ruling, award,
edict or decree of any Governmental Authority by which Sterling or
any of its Subsidiaries may be bound or otherwise affected; or
(ii) except as set forth on Schedule 5.02(d)(ii),
conflict with, result in a breach of the terms and conditions of or
violation of, or result in the imposition of any Lien on or with
respect to the business of Sterling or any of its Subsidiaries as a
result of the provisions of, or cause a default or termination
under, any mortgage, indenture, loan agreement, lease, commitment,
agreement or other instrument to which Sterling or any of its
Subsidiaries is a party or by which it or any of its business may
be bound or affected.
(e) (i) Except as set forth in Schedule 5.02(e)(i),
there are no Proceedings pending or, to the best knowledge of
Sterling, the Subsidiaries of Sterling, and Parent, threatened
against or affecting Sterling or any of its Subsidiaries, at law or
in equity, or before or by any Governmental Authorities having
jurisdiction over Sterling or any of its Subsidiaries or brought by
any third party that might reasonably be expected, individually or
in the aggregate, to affect Materially the business, financial
condition or results of operation of Sterling or any of its
Subsidiaries.
(ii) Except for an H-S-R Filing and except as set
forth in Schedule 5.02(e)(ii), no consent, authorization, or
approval of, or exemption by, or filing with, any Governmental
Authorities or self-regulatory body or authority or any non-
governmental third party, the absence of which would be Material,
is required in connection with the execution, delivery and
performance by Sterling of this Agreement or of any of the Buyer
Related Documents to which it is a party or in connection with the
execution, delivery and performance of any agreements contemplated
in this Agreement by Sterling or any Subsidiary of Sterling or the
taking of any action herein or therein contemplated.
(f) Neither Sterling nor any of its Subsidiaries has
incurred any obligation or liability, contingent or otherwise, for
broker's or finder's fees with respect to the matters provided for
in this Agreement or any agreement contemplated in this Agreement
for which Seller will be responsible.
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(g) Neither Sterling nor any of its Subsidiaries is an
"investment company" or a company "controlled" by an investment
company (as defined in the Investment Company Act of 1940, as
amended) or a "holding company" or a "public utility" (as defined
in the Public Utility Holding Company Act of 1935, as amended).
5.04 No Other Representations and Warranties. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE BUYER RELATED
DOCUMENTS OR ANY OTHER AGREEMENTS CONTEMPLATED IN THIS AGREEMENT,
NEITHER BUYER, STERLING, PARENT NOR ANY SUBSIDIARY OF STERLING NOR
ANY AGENT OR REPRESENTATIVE OF BUYER, STERLING, PARENT OR ANY
SUBSIDIARY OF STERLING HAS MADE, AND BUYER, STERLING AND PARENT
ARE NOT LIABLE FOR OR BOUND IN ANY MANNER BY, ANY EXPRESS OR
IMPLIED WARRANTIES, GUARANTEES, PROMISES, STATEMENTS, INDUCEMENTS,
REPRESENTATIONS, OR INFORMATION PERTAINING TO THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREIN, AND WITHOUT LIMITING THE
FOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER,
STERLING AND PARENT ARE NOT LIABLE FOR OR BOUND BY (AND SELLER HAS
NOT RELIED UPON) ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS,
OR ANY OTHER INFORMATION RESPECTING ANY PORTION OF THIS AGREEMENT
FURNISHED BY BUYER, STERLING, PARENT OR ANY SUBSIDIARY OF STERLING
OR ANY EMPLOYEE, AGENT OR OTHER PERSON REPRESENTING OR PURPORTEDLY
REPRESENTING BUYER, STERLING OR PARENT.
8. Indemnity of Buyer, Sterling and Parent.
The parties to this Amendment desire to amend Article 6 of the Agreement
to provide for indemnification by Buyer, Sterling and Parent of breaches by
Subsidiaries of Sterling. In connection therewith, Article 6 of the
Agreement is hereby deleted in its entirety and replaced in its entirety
with the following:
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ARTICLE 6
INDEMNITY BY BUYER, STERLING AND PARENT
---------------------------------------
Buyer, Sterling and Parent shall jointly and severally indemnify, save
and hold Seller and its Subsidiaries together with their respective
officers, directors, employees, consultants, representatives and agents and
all of their respective heirs, legal representatives, successors and assigns
(collectively, the "Seller Indemnified Parties") harmless from and against
and in respect of all claims, damages, judgments, penalties, costs, losses,
expenses (including, without limitation, reasonable attorneys' fees), fines,
assessments, Taxes, debts, liabilities and obligations of any nature
whatsoever (collectively, the "Losses") arising from, out of or in any
manner connected with or based on:
(a) the Assumed Liabilities assumed by Buyer as required by
Section 3.01 hereunder or the liabilities assumed by any Subsidiary
of Sterling under any agreement contemplated by this Agreement;
(b) except for Excluded Liabilities, Buyer's or any
Subsidiary of Sterling's ownership, use, operation or maintenance
of any of the Assets on or after the Closing Date;
(c) subject to the limitations of Article 15, any inaccuracy
in any of the representations or warranties of Buyer, Sterling or
Parent contained in this Agreement or any of the Buyer Related
Documents or the breach of any covenant or nonfulfillment of any
agreement on the part of Buyer, Sterling or Parent under this
Agreement or any of the Buyer Related Documents; and
(d) subject to the limitations of Article 15, any inaccuracy
in any of the representations or warranties of Subsidiaries of
Sterling contained in any agreement relating to the transfer of the
International Assets to Sterling's Subsidiaries or the breach of
any covenant or nonfulfillment of any agreement on the part of any
of Sterling's Subsidiaries under such agreements.
9. Indemnity of Seller.
The parties to this Amendment desire to amend Article 7 of the Agreement
to provide for indemnification by Seller of breaches by its Subsidiaries.
In connection therewith, Article 7 of the Agreement is hereby deleted in its
entirety and replaced in its entirety with the following:
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ARTICLE 7
SELLER'S INDEMNITY
------------------
Seller shall indemnify, save and hold harmless Buyer, Sterling and
Parent and their respective Subsidiaries and their respective secured bank
lenders together with all of their respective officers, directors,
employees, consultants, representatives and agents and all of their
respective heirs, legal representatives, successors and assigns
(collectively, the "Buyer Indemnified Parties") from and against and in
respect of all Losses incurred by any of them to the extent they arise from,
out of or in any manner connected with or based on:
(a) any liabilities, claims, losses, damages, or
expenses, direct or contingent, known or unknown, of Seller or any
of its Affiliates, including, without limitation, the Excluded
Liabilities;
(b) the Excluded Assets;
(c) Seller's obligations pursuant to Article 14 of this
Agreement;
(d) any act, omission, event, circumstance, occurrence
or condition occurring or existing on or prior to the Closing Date
and involving or relating to any of the Assets or Seller's or any
of its Subsidiaries' related operations;
(e) subject to the limitations of Article 15, any
inaccuracy in any of the representations and warranties of Seller
contained in this Agreement or any of the Seller Related Documents
or the breach of any covenant or nonfulfillment of any agreement on
the part of Seller under this Agreement, or any of the Seller
Related Documents;
(f) subject to the limitations of Article 15, any
inaccuracy in any of the representations and warranties of any
Subsidiary of Seller contained in any agreement relating to the
transfer of the International Assets from a Subsidiary of Seller to
a Subsidiary of Parent or the breach of any covenant or
nonfulfillment of any agreement on the part of any Subsidiary of
Seller under any of such agreements; and
(g) liabilities in connection with non-transferring
employees.
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10. Employee Benefit Matters.
The parties to this Amendment desire to amend Sections 9.01, 9.02, 9.04,
9.06, 9.08 and 9.09 of the Agreement to provide for the transfer of
employees of Subsidiaries of Seller to Buyer or Subsidiaries of Sterling.
In connection therewith, Sections 9.01, 9.02, 9.04, 9.06, 9.08 and 9.09 are
hereby deleted in their entirety and are hereby replaced in their entirety
with the following:
9.01 Offer of Employment. Seller has provided to
Buyer as of the date hereof a list of employees of Seller
and its Subsidiaries associated with the Equipment
Product Lines or any of the Assets setting forth the
status of such employees and their compensation, who will
be full-time, active employees on the Closing Date,
including those on temporary leave for jury duty, family
and short-term medical leave, vacation or annual two-week
military duty. Buyer shall provide to Seller at least 10
days prior to the Closing Date a list of such employees
to whom Buyer or its Affiliates or Subsidiaries of
Sterling will offer employment (the "Employee List").
Seller shall use all reasonable efforts and shall cause
its Subsidiaries to use all reasonable efforts (which
does not include the increase in any benefits under any
employee benefit program, plan or arrangement) to cause
such employees to accept Buyer's or its Affiliates' or
Subsidiaries of Sterling's offers of employment.
Reasonable efforts for the purpose of this Article shall
mean communicating the benefits to such employees and the
benefits set forth in this Article to encourage their
employment with Buyer, its Affiliates or Subsidiaries of
Sterling. Reasonable efforts shall neither preclude the
Seller or its Subsidiaries from retaining those employees
who do not accept employment offers from the Buyer; nor
require the Seller or its Subsidiaries to provide any
payment or benefit which is not set forth in this
Agreement. Prior to any employee's acceptance or
rejection of an offer of employment from the Buyer,
Seller or its Subsidiaries shall not provide any
incentive for any employee to remain in the employment of
the Seller or its Subsidiaries. Those employees who
accept such offers of employment and become employees of
the Buyer or its Affiliates prior to February 14, 1997
shall be referred to herein as "Transferred Employees".
Employees listed on the Employee List who as of the
Closing Date are on short term medical leave shall not be
deemed Transferred Employees if they do not report for
work within six (6) months of the commencement of such
leave and shall remain the responsibility of Seller or
its Subsidiaries.
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9.02 Service Under Buyer's Plans. Except as
otherwise provided in this Article 9, Transferred
Employees shall not be credited for their service with
Seller or its Subsidiaries for purposes of participation,
eligibility and vesting under the benefit plans and
programs provided by Buyer or its Affiliates.
9.04 Pension Benefits. On the date a Transferred
Employee becomes an employee of Buyer or any of its
Affiliates as set forth in Section 9.01, (i) the
Transferred Employee that participates in any "employee
pension benefit plan" (as defined in Section 3(2) of
ERISA) that is maintained by Seller or its Subsidiaries
(collectively, "Seller Pension Plans") shall cease to do
so and (ii) such Transferred Employee shall commence
participation in any "employee pension benefit plan" of
Buyer or its Affiliates for individuals employed by Buyer
of its Affiliates (collectively, "Buyer Pension Plans")
upon the satisfaction of any eligibility requirements set
forth in the Buyer Pension Plans.
9.06 Discharge of Employee Benefits Obligations.
(a) Except for liabilities and claims to be
assumed by Buyer under this Article 9, Seller shall
discharge all liabilities to and claims of Transferred
Employees or employees of Seller arising out of their
employment with Seller or its Subsidiaries including, but
not limited to, claims arising out of any employee
benefit plan maintained by Seller or its Subsidiaries or
for retiree medical benefits promised, provided or
subsidized by Seller after the Closing Date (as such
employee benefit plans of Seller or its Subsidiaries
exist when claims are to be paid by Seller or its
Subsidiaries and recognizing that such employee benefit
plans of Seller or its Subsidiaries may be amended,
modified or terminated).
(b) Except for liabilities assumed by Seller
or its Subsidiaries under this Article 9, Buyer or its
Affiliates shall discharge all liabilities to and claims
of Transferred Employees or employees of Buyer or its
Affiliates arising out of their employment with Buyer or
its Affiliates including, but not limited to, any claims
arising out of any employee benefit plan maintained by
Buyer or its Affiliates.
9.08 Vacation. Seller or its Subsidiaries shall
discharge its liability to any Transferred Employee for
vacation accrued through the date a Transferred
Employee's employment with the Seller or its Subsidiaries
terminates. With respect to a Transferred Employee,
Buyer or its Affiliates shall credit all service
recognized under Seller's or its Subsidiaries' vacation
policy through a Transferred Employee's last day of
employment with Seller or its Subsidiaries in the
calculation of the amount of vacation a Transferred
Employee has accrued under Buyer's or its Affiliate's
vacation policy.
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9.09 Severance. Seller shall discharge its
liability to any Transferred Employee for severance
benefits accrued through the date a Transferred
Employee's employment with the Seller or its Subsidiaries
terminates. With respect to a Transferred Employee,
Buyer or its Affiliates shall credit all service
recognized under Seller's or its Subsidiaries' severance
policy through a Transferred Employee's last day of
employment with Seller or its Subsidiaries in the
calculation of the amount of severance benefit a
Transferred Employee has accrued under Buyer's or its
Affiliate's severance policy or program.
11. The parties to this Amendment desire to amend Paragraph (a) of Section
9.03 of the Agreement to provide for the transfer of employees of
Subsidiaries of Seller to Buyer or Subsidiaries of Sterling. In connection
therewith, Paragraph (a) of Section 9.03 is hereby deleted in its entirety
and is hereby replaced in its entirety with the following:
(a) On the date a Transferred Employee becomes
an employee of the Buyer or any of its Affiliates as set
forth in Section 9.01, (i) the Transferred Employee and
his or her dependents that participate in any other
"employee welfare benefit plan" (as defined by Section
3(1) of ERISA) that is maintained by Seller or its
Subsidiaries (collectively, the "Seller Welfare Plans")
shall cease to do so and (ii) except as otherwise
provided in Sections 9.03(c), 9.08 and 9.09, such
Transferred Employee and dependents shall commence
participation in any "employee welfare benefit plan" (as
defined by Section 3(1) of ERISA) maintained by Buyer or
its Affiliates for individuals employed by Buyer or its
Affiliates (collectively, the "Buyer Welfare Plans") upon
the satisfaction of any eligibility requirements as set
forth in the Buyer Welfare Plan.
-21-
12. Deliveries at Closing.
The parties to this Amendment desire to amend Section 11.02 of the
Agreement. In connection therewith, Section 11.02 is hereby amended by
adding Subsection (f) thereto:
(f) execute and deliver all agreements necessary or advisable
to transfer the International Assets from Seller's Subsidiaries to
Sterling, Buyer or Sterling's Subsidiaries, as the case may be.
13. Seller Deliveries at Closing.
The parties to this Amendment desire to amend Section 11.03 of the
Agreement. In connection therewith, Section 12.03 is hereby amended by
adding Subsection (d) thereto:
(d) execute and deliver all agreements necessary or advisable
to transfer the International Assets from Seller's Subsidiaries to
Sterling, Buyer or Sterling's Subsidiaries, as the case may be.
14. Conditions to Closing.
The parties to this Amendment desire to amend Section 12.02 (k) of the
Agreement. In connection therewith, Section 12.02(k) is hereby deleted in
its entirety and is hereby replaced in its entirety with the following:
(k) The Parties shall be reasonably satisfied with
respect to all documents and arrangements relating to the transfer
of any International Assets and the employment by Sterling's
Subsidiaries of any employees of Seller's Subsidiaries located
outside the United States;
15. Buyer Debt.
The parties to this Amendment desire to amend Section 13.06 of the
Agreement to provide for an increase in Buyer's debt limitations. In
connection therewith, Section 13.06 is hereby deleted in its entirety and is
hereby replaced in its entirety with the following:
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13.06Buyer Debt. After the Closing and for so long as Seller
owns any equity interest in the Buyer, Buyer shall not incur any
debt for borrowed money other than (i) pursuant to a working
capital line of credit in an amount up to $40,000,000, which shall
contain reasonable and customary terms and conditions, may be
secured by Buyer's accounts receivable and inventory, shall provide
for borrowings, repayments and reborrowings from time to time as
required in connection with the operation of Buyer's business and
shall be provided by a financial institution or an Affiliate of
Buyer, (ii) other loans or credit facilities to be provided by
Affiliates of Buyer in the discretion of such Affiliates and Buyer,
which shall be repaid on a pari passu basis with cash payments on
the Buyer Preferred Stock and (iii) other loans and credit
facilities satisfactory to Buyer and Seller. To the extent Buyer's
working capital needs exceed $70,000,000, the Parties agree to meet
and discuss in good faith possible modifications to the foregoing
limitations.
16. Confidentiality.
The parties to this Amendment desire to amend Section 13.07 of the
Agreement to provide for the protection of Confidential Material by the
Parties and Affiliates and Subsidiaries of the Parties. In connection
therewith, Section 13.07 is hereby deleted in its entirety and is hereby
replaced in its entirety with the following:
13.07 Confidentiality.
(a) In addition to any obligations of confidentiality
pursuant to other agreements between the Parties or their
Affiliates, without the prior written consent of the other Party,
each Party shall and shall cause its Subsidiaries to hold in
confidence and not disclose to any third party (i) any confidential
information received by it from the other Party or its
Subsidiaries, and (ii) the specific terms, conditions and
information contained in this Agreement, any of the Related
Documents and any other documents contemplated in this Agreement
(collectively, "Confidential Material").
(b) Each Party agrees that it shall and shall cause its
Subsidiaries to use the Confidential Material only for the purposes
of carrying out the transactions contemplated by this Agreement,
the Related Documents and any other documents contemplated in this
Agreement.
(c) For the purposes of this Agreement, Confidential Material
shall not include information:
(i) that is or becomes part of the public domain or is
otherwise generally available to the public other than through
breach of this Agreement, the Related Documents or any documents
contemplated in this Agreement or through the fault of the
receiving Party or its Subsidiaries;
(ii) that is or becomes available to another Party or
its Subsidiaries, from an unaffiliated source, which source has no
obligation of secrecy to the Parties or their Subsidiaries;
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(iii) that is disclosed (a) in any SEC filing; or (b)
that is required to be disclosed by law or governmental regulation
or order or upon the advice of counsel, provided that the Party or
its Subsidiary disclosing such information shall give the other
Parties to this Agreement reasonable advance notice of such
disclosure; or
(iv) that the Parties mutually agree in writing to disclose.
(d) The foregoing obligation of confidentiality shall be
effective from the date of this Agreement and continuing for a
period of six (6) years following the termination of the last to
terminate of this Agreement or the Related Documents.
(e) The Parties agree that in the event of any breach by any
Party or any Party's Subsidiaries of any of the provisions of this
Section 8.01, money damages would be inadequate and that the non-
breaching Party would have no adequate remedy at law. Accordingly,
notwithstanding anything to the contrary contained in this
Agreement, the Parties agree that the Parties shall have the right,
in addition to any other rights and the obligations under this
Section 8.01, to seek an adequate remedy for such breach, not only
by an action for damages but also by an action or actions for
specific performance, injunction and/or other equitable relief in
order to enforce or prevent any violations (whether anticipatory,
continuing or future) of the provisions of this Section 8.01.
17. Entire Agreement.
The parties to this Amendment desire to amend Section 17.11 of the
Agreement to provide for the inclusion of the Subsidiaries of the Parties.
In connection therewith, Section 17.11 is hereby deleted in its entirety and
is hereby replaced in its entirety with the following:
17.11Entire Agreement. This Agreement, the Related Documents
and all other agreements contemplated in this Agreement constitute
the full understanding of the Parties, a complete allocation of
risks between the Parties and a complete and exclusive statement of
the terms and conditions of their agreement relating to the subject
matter hereof and thereof 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, in the Related Documents or in any
other agreements contemplated 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 made
in accordance with Section 17.03 of this Agreement.
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18. Revised Schedules.
In connection with each of the foregoing amendments, Schedules 2.01(a),
2.01(b), 2.01(d) and 2.01(e) are hereby deleted in their entirety and
replaced in their entirety with corresponding Schedules attached to this
Amendment as Exhibit A, Schedule 1.29 is hereby deleted in its entirety and
Schedules 1.29(a) and 1.29(b), 2.03(a), 2.03(b), 2.03(d) and 2.03(e) are
hereby added to the Agreement.
19. Miscellaneous.
The provisions of Article 17 (other than Section 17.11 of the Agreement
which is amended above) of the Agreement shall control in this Amendment and
are hereby incorporated into this Amendment in their entirety except that
the word "Agreement" as used in Article 17 shall be construed to mean the
Agreement as amended by this Amendment where appropriate.
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The Parties hereto have caused this Amendment to be executed as of
the date and year first above written.
POLAROID CORPORATION
By: /s/ Xxxxxxx X. X'Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. X'Xxxxx, Xx.
--------------------------------
Title: Executive Vice President and
Chief Executive Officer
--------------------------------
STERLING DIAGNOSTIC IMAGING, INC.
By: /s/ Xxxxxxx X. xx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. xx Xxxxxxxxx
--------------------------------
Title: Senior Vice President
-------------------------------
SDI HOLDING CORP.
By: /s/ Xxxxxxx X. xx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. xx Xxxxxxxxx
--------------------------------
Title: Senior Vice President
-------------------------------
STERLING DRY IMAGING SYSTEMS, INC.
By: /s/ Xxxxxxx X. xx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. xx Xxxxxxxxx
--------------------------------
Title: Senior Vice President
-------------------------------
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