ASSET PURCHASE AGREEMENT / U.K. ASSETS
between
BELDEN U.K. LIMITED
as Buyer
and
ALPHA WIRE LIMITED
as Seller
Dated January 7, 1997
Page 97
Alpha Wire Limited
TABLE OF CONTENTS
Page
1. CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 99
2. PURCHASE AND SALE OF ASSETS. . . . . . . . . . . . . . . . . . . . .107
3. REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . .108
4. REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . .130
5. PRE-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . . .132
6. POST-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . . .135
7. CONDITIONS TO OBLIGATION TO CLOSE . . . . . . . . . . . . . . . . .145
8. REMEDIES FOR BREACHES OF THIS AGREEMENT . . . . . . . . . . . . . .149
9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . .155
10. GENERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . .156
11. DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . . . . .159
Page 98
Alpha Wire Limited
ASSET PURCHASE AGREEMENT / U.K. ASSETS
This Asset Purchase Agreement is entered into as of January 7, 1997,
by Belden U.K. Limited, a corporation organized under the laws of Great
Britain, or its designated Affiliate ("Buyer"), and Alpha Wire Limited, a
Delaware corporation ("Seller"). (The Buyer and the Seller may be
individually referred to as a "Party" and collectively as the "Parties").
Belden Wire & Cable Company ("BWC") and Alpha Wire Corporation ("Alpha
Wire") entered into, as of November 21, 1996, an Asset Purchase Agreement
("U.S. A.P.A."), pursuant to which Alpha Wire agreed to transfer certain
assets used by it to design, develop and distribute wire and cable
products. BWC, through its U.K. affiliate, the Buyer, and Alpha Wire,
through its affiliate, the Seller, now want to transfer those assets used
by Alpha Wire and its affiliates in its U.K. operations for the design,
development and distribution of wire and cable products.
Now, the Parties agree as follows:
1. CERTAIN DEFINITIONS
1.1. "Active Employee" means an employee of the Business who on the
Closing Date is either (i) at work or (ii) absent from work solely
because of (a) holiday, (b) vacation, (c) illness or disability
which has prevented, or is expected to prevent, the employee from
working at his or her assigned job for no longer than three months
in total duration (including time before and after the Closing
Date), or (d) leave of absence which has lasted or is expected to
last no longer than three months in total duration (including time
before and after the Closing Date) or which is for military duty.
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Alpha Wire Limited
1.2 "Affiliate" means any Person that directly or indirectly controls,
is controlled by or is under common control with the named party.
1.3 "Agreement" means this Asset Purchase Agreement.
1.4 "Assets" means all right, title, and interest in and to all of the
assets of the Business, including without limitation all of its
(a) real property, leaseholds, subleases, improvements, fixtures,
fittings, easements, rights-of-way and other appurtenants, (b)
tangible personal property (such as machinery, and all other
equipment, inventories of raw materials and supplies, manufactured
and purchased parts, goods in process and finished goods,
furniture, fixtures, fittings, automobiles, trucks, tractors,
trailers, tools, jigs, and dies), (c) Intellectual Property
(including the right to use the name "Alpha", "Alpha Wire" and any
other name used by Seller in the Business), goodwill associated
therewith, licenses and sublicenses granted and obtained with
respect thereto, and rights thereunder, remedies against
infringements thereof, and rights to protection of interests
therein under the laws of all jurisdictions, (d) non-real property
leases, subleases, and rights thereunder, (e) agreements,
contracts, and rights thereunder, (f) indentures, mortgages,
instruments, Security Interests, guaranties, other similar
arrangements, and rights thereunder, all of which are in favor of
the Seller and none of which involve the Seller as being an
obligor, (g) accounts, notes, and other receivables in favor of
the Seller, (h) securities, (i) claims, deposits, lockboxes,
prepayments, refunds, causes of action, choses in action, rights
of recovery, rights of set off, and rights of recoupment (other
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Alpha Wire Limited
than any right of refund for the payment of income Taxes), (j)
franchises, approvals, permits, licenses, orders, registrations,
certificates, variances, and similar rights obtained from
governments and governmental agencies, (k) books, records, ledgers
files, documents, correspondence, lists, plats, architectural
plans, drawings, and specifications, creative materials,
advertising and promotional materials, studies, reports, and other
printed or written materials, and (l) all other property, right
and assets of any kind not otherwise described in (a)-(k) above,
whether tangible or intangible, used in or relating to the
Business; provided, however, that the Assets shall not include the
Retained Assets.
1.5 "Assumed Liabilities" means those Liabilities of the Seller with
respect to the Business other than Retained Liabilities incurred
in the Ordinary Course:
1.5.1 that arise after the Closing under contracts entered into
by the Seller which are not reflected on the Final Closing
Balance Sheet of the U.S. A.P.A., but (i) are listed under
Section 3.14 of the Disclosure Schedule as "Contracts Being
Assumed by Buyer"; or (ii) not so listed on Schedule 3.14
but were entered into in the Ordinary Course for the
purchase of goods or services to the Business or for the
sale of wire and cable products by the Business.
1.6 "Business" means the business conducted by the Seller involving
the design, development and distribution of wire and cable
products.
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1.7 "Buyer's Indemnified Group" has the meaning assigned in Section
8.2.
1.8 "Claim" has the meaning assigned in Section 11.1.
1.9 "Closing" means the meeting held on the Closing Date at which the
Parties consummate the contemplated transactions.
1.10 "Closing Date" has the meaning assigned in Section 2.17 of the
U.S. A.P.A.
1.11 "Code" means the Internal Revenue Code of 1986, as amended.
1.12 "Consents" has the meaning assigned in Section 5.2.
1.13 "Disclosure Schedule" has the meaning assigned in Article 3.
1.14 "Employee Benefit Plan" means each employee pension benefit plan
or arrangement, profit sharing plan or savings plan (including any
401(k) plan), each employee welfare benefit plan and each bonus,
incentive compensation, deferred compensation, severance or
similar plan, policy, contract or payroll practice providing
compensation or employee benefits maintained by, on behalf of, or
for the benefit of the Seller or to which the Seller is a
participating employer or is obligated to contribute or has any
legally enforceable liability and under which any employee
participates or has accrued any rights or under which the Seller
is liable in respect of an employee.
1.15 "Environmental Laws" shall include any federal, state or local
law, regulation, rule, standard, order or decree relating to
protection of health, safety or the environment and applicable to
the business or activities of Seller or conditions resulting
therefrom.
1.16 "Indemnified Party" has the meaning assigned in Section 8.4.
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1.17 "Indemnifying Party" has the meaning assigned in Section 8.4.
1.18 "Intellectual Property" means all (i) patents, patent
applications, inventions (whether or not patentable and whether or
not reduced to practice), invention disclosures, and improvements
thereto, (ii) trademarks, service marks, trade dress, logos, trade
names and corporate names and registrations and applications for
registration thereof, (iii) copyrights and registrations and
applications for registration thereof, (iv) mask works and
registrations and applications for registration thereof, (v)
computer software, data and documentation, (vi) trade secrets and
confidential information and (vii) copies and tangible embodiments
of any of the foregoing (in whatever form or medium).
1.19 "Liability" means any liability (whether known or unknown, whether
absolute or contingent, whether liquidated or unliquidated, and
whether due or to become due), including any liability for Taxes,
any damage or loss of any kind (including consequential, special,
punitive, and incidental), any judgment, settlement, expense or
cost (including those relating to any investigation or any defense
or prosecution of any proceedings), and any reasonable fees and
expenses of attorneys, accountants, experts and other consultants.
1.20 "Occurrence" means an event, incident, accident, or condition,
including without any limitation which results from an act or
omission (including without limitation the sale of products and
continuous or repeated exposure to conditions which result in
bodily injury, death or damage of any kind).
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1.21 "Ordinary Course" means the ordinary course of business of Seller
consistent with past custom and practice (including with respect
to quantity, quality and frequency).
1.22 "Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization, or any other form of
business or legal entity or government authority.
1.23 "Regulated Materials" includes any chemical, pollutant,
contaminant, condition, petroleum or petroleum products, hazardous
or toxic substance, and any other substance, material or waste
defined as such or subject to regulation in any manner whatsoever
under any Environmental Law.
1.24 "Retained Assets" means all right, title and interest in and to
(i) cash and cash equivalents (including any "over draft"
accounts) outstanding on the Closing Date, (ii) repayment
obligations outstanding on the Closing Date arising from loans
made prior to the date hereof to shareholders, directors,
officers, employees or other related parties, (iii) all Regulated
Materials in, on, under or relating to any of the foregoing or any
of the Assets except to the extent currently used by Seller in the
conduct of the Business in the Ordinary Course and in accordance
with Environmental Laws, (iv) intercompany amounts to the extent
those amounts relate to investments in or permanent advances to
the Xxxxx Cable Division or Insul-Tab Division of Seller or to any
other Affiliates of Seller, (v) any life insurance policies for
any shareholder of Seller (including the cash surrender value of
such policies and any receivables for premiums in excess of the
cash surrender value of such policies), (vi) to the extent not
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Alpha Wire Limited
used in the Business, the assets of Seller's other operations, and
(vii) the items listed on Exhibit 1.24.
1.25 "Retained Liabilities" means (i) all Liabilities relating to the
borrowing of money (including any related interest or deferred
loan costs), (ii) all Liabilities arising out of any of the
Retained Assets, whenever so arising, (iii) all Liabilities
retained by the Seller pursuant to Section 6.8 hereof, (iv) all
Liabilities retained by the Seller pursuant to Section 6.10.3
hereof, (v) all Liabilities for income Taxes, (vi) all
Liabilities of the Seller for Taxes arising from the consummation
of the transactions contemplated by this Agreement; (vii) all
Liabilities of the Seller to indemnify any Person (including the
Seller or its stockholders) by reason of the fact that such Person
is or was a director, officer, employee or agent of the Seller,
its Affiliates or its predecessors; (viii) all Liabilities of the
Seller for the costs and expenses incurred in connection with this
Agreement; (ix) all Liabilities of Seller resulting from or
relating to the borrowing of money, breach of contract, tort,
infringement or violation of law; (x) all Liabilities of Seller
with respect to its or its predecessors' acquisition of any of the
assets or capital stock of any Person; (xii) all Liabilities of
Seller under this Agreement (xiii) all Liabilities listed on
Exhibit 1.25; (xiv) all Liabilities of Seller with respect to its
other operations; and (xv) all other Liabilities (whenever
arising) of the Seller, its Affiliates, their predecessors or
otherwise relating to the Business arising from or relating to any
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Occurrence or period on or before the Closing Date, except for any
Assumed Liabilities.
1.26 "Security Interest" means any mortgage, pledge, security interest,
encumbrance, charge or other lien.
1.27 "Seller's Indemnified Group" has the meaning assigned in Section
8.3.
1.28 "Seller's Knowledge" or similar terms mean the knowledge after
reasonable investigation (including after consulting with
employees of the Seller with responsibility for the subject
matter) of (i) the officers and directors of the Seller, and (ii)
the following individuals: Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx, and with
respect to Section 3.21, Xxxxxxxxx Xxxxxxx and with respect to
Section 3.23, Xxxxx Xxxxxxxxxxx.
1.29 "Subsidiary" means any corporation with respect to which a
specified Person (or a Subsidiary thereof) owns a majority of the
common stock or has the power to vote or direct the voting of
sufficient securities to elect a majority of the directors.
1.30 "Tax" means any national, federal, state, local or foreign income,
gross receipts, license, payroll, employment, excise, severance,
stamp, occupation, premium, windfall profits, environmental,
customs duties, capital stock, franchise, profits, withholding,
social security, unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax of any
kind, including any interest or penalty, whether disputed or not.
1.31 "Tax Return" means any return, declaration, report, claim for
refund or information return or statement relating to Taxes,
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including any schedule or attachment thereto, and including any
amendment thereof.
1.32 "Transferred Employees" has the meaning assigned in Section
6.10.1.1.
2. PURCHASE AND SALE OF ASSETS
2.1. Basic Transaction. On and subject to the terms and conditions of
this Agreement, Buyer agrees to purchase from Seller, and Seller
agrees to sell, transfer, convey and deliver to Buyer, free of all
Security Interests, all of the Assets at the Closing, solely in
exchange for Buyer's assumption of the Assumed Liabilities.
2.2 Transfer Taxes. With respect to the transfer of the Assets or the
contemplated transactions, Seller will pay (i) any transfer,
conveyance or other similar Taxes, stamps, duties or similar
governmental charges imposed by any taxing jurisdiction, (ii) all
recording, filing fees or notarial fees and (iii) other similar
costs of Closing.
2.3 Deliveries at the Closing. At the Closing, (i) the Seller will
deliver to the Buyer the various certificates, instruments, and
documents referred to in Section 7.1 below; (ii) the Buyer will
deliver to the Seller the various certificates, instruments, and
documents referred to in Section 7.2 below; (iii) the Seller will
execute, acknowledge (if appropriate), and deliver to the Buyer
such other instruments of sale, transfer, conveyance, and
assignment as the Buyer and their counsel reasonably may request;
(iv) the Buyer will execute, acknowledge (if appropriate), and
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deliver to the Seller such other instruments of assumption as the
Seller and their counsel reasonably may request; (v) the Buyer
will deliver to the Seller the Closing Payment; and (vi) each
Party will execute and deliver the Ancillary Agreements.
2.4 Allocation. The Parties agree to allocate the Purchase Price
among the Assets for tax purposes in accordance with the
allocation schedule attached as Exhibit 2.20.
3. REPRESENTATIONS AND WARRANTIES OF SELLER.
The Seller represents and warrants to the Buyer that the statements
contained in this Article 3 are correct and complete as of the date of
this Agreement and will be correct and complete as of the Closing Date
(as though made then and as though the Closing Date were substituted
for the date of this Agreement throughout this Article 3), except as
set forth in the disclosure schedule delivered by the Seller to the
Buyer on the date of this Agreement and initialed by the Parties (the
"Disclosure Schedule"). Nothing in the Disclosure Schedule shall be
deemed adequate to disclose an exception to a representation or
warranty made in this Agreement, unless the Disclosure Schedule
identifies the exception with reasonable particularity and describes
the relevant facts in reasonable detail. The Disclosure Schedule will
be arranged in paragraphs corresponding to the numbered paragraphs
contained in this Article 3.
3.1 Organization of the Seller. Seller is a corporation duly
organized, validly existing, and in good standing under the laws
of Delaware. Section 3.1 of the Disclosure Schedule lists each of
Seller's Subsidiaries and Affiliates.
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3.2 Authorization of Transaction. The Seller has full power and
authority to execute and deliver this Agreement and the Ancillary
Agreements, and to perform its obligations hereunder and
thereunder. This Agreement and the Ancillary Agreements
constitute the valid and legally binding obligations of the
Seller, enforceable in accordance with their terms and conditions.
3.3 Noncontravention. Except as set forth in Section 3.3 of the
Disclosure Schedule, neither the execution and the delivery of
this Agreement and the Ancillary Agreements, nor the consummation
of the transactions contemplated hereby and thereby (including the
assignments and assumptions referred to in Article 2 above), will
(i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which the Seller is subject, or charter or bylaws of the Seller
or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the
right to accelerate, terminate, modify, or cancel, or require any
notice under, any agreement, contract, lease, license, instrument,
or other arrangement to which the Seller is a party or by which it
is bound or to which any of its assets is subject (or result in
the imposition of any Security Interest upon any of its assets),
except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, failure to
give notice, or Security Interest would not have a material
adverse effect on the business, financial condition, operations or
results of the Business or on the ability of the Parties to
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consummate the transactions contemplated by this Agreement.
Except in regards to the HSR Act and ISRA, the Seller does not
need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement (including the
assignments and assumptions referred to in Article 2 above),
except where the failure to give notice, make a filing, or obtain
authorization, consent or approval would not have a material
adverse effect on the business, financial condition, operations or
results of the Business or on the ability of the Parties to
consummate the transactions contemplated by this Agreement.
3.4 Brokers' Fees. The Seller has no Liability or obligation to pay
any fees or commissions to any broker, finder, or agent retained
by the Seller with respect to the transactions contemplated by
this Agreement for which the Buyer could become liable.
3.5 Assets. The Seller has good and marketable title to all of the
Assets, free and clear of any Security Interest or restriction on
transfer, except for Security Interests listed in Section 3.5 of
the Disclosure Schedule which will be released in full on the
Closing Date. The Assets constitute all of the assets that are
necessary to permit the operation of the Business in substantially
the same manner as such operations are conducted as of the date
hereof.
3.6 Financial Statements. Attached as Section 3.6 of the Disclosure
Schedule are the following financial statements (collectively the
"financial statements") with respect to Alpha Wire Limited: (i)
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audited Financial Statements for the fiscal years ended December
31, 1993, December 31, 1994 and December 31, 1995 prepared for
statutory reporting purposes; (ii) unaudited balance sheets,
income statements and statements of cash flows as of and for the
fiscal years ended December 31, 1993, December 31, 1994 and
December 31, 1995; and (iii) unaudited balance sheet, income
statement and statement of cash flows as of and for the period
ended October 31, 1996. The Financial Statements (including the
notes thereto) have been prepared in accordance with GAAP (U.K.
GAAP for the audited statutory Financial Statements and U.S. GAAP
for the unaudited Financial Statements) applied on a consistent
basis throughout the periods covered thereby, present fairly the
financial condition of Alpha Wire Limited as of such dates and the
result of operations of the Alpha Wire Limited for such periods,
and are consistent with the books and records of Seller; provided,
however that the Financial Statements as of and for the period
ended October 31, 1996 are subject to normal year-end adjustments
and lack footnotes.
3.7 Events Subsequent to Most Recent Year End. Since the Most Recent
Year End, there has not been any material adverse change in the
business, financial condition, operations, or results of operation
of the Business. Without limiting the generality of the
foregoing, since that date the Seller has not with respect to the
Business, except as set forth in Section 3.7 of the Disclosure
Schedule:
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3.7.1 sold, leased, transferred, or assigned any of its assets,
tangible or intangible, other than for a fair consideration
in the Ordinary Course;
3.7.2 entered into any agreement, lease, or license (or series of
related agreements, contracts, leases, and licenses) either
involving more than $10,000 or outside the Ordinary Course;
3.7.3 accelerated, terminated, modified, or cancelled any
agreement, contract, lease, or license (or series of
related agreements, contracts, leases, and licenses), or
any other party to such agreements, contracts, leases or
licenses doing same, involving more than $10,000 to which
Seller is a party or by which Seller is bound;
3.7.4 made any capital expenditure (or series of related capital
expenditures) either involving more than $1,000 or outside
the Ordinary Course;
3.7.5 made any capital investment in, any loan to, or any
acquisition of the securities or assets of, any other
Person (or series of related capital investments, loans,
and acquisitions) either involving more than $1,000 or
outside the Ordinary Course;
3.7.6 issued any note, bond, or other debt security or created,
incurred, assumed, or guaranteed any indebtedness for
borrowed money or capitalized lease obligation either
involving more than $1,000 individually or $2,000 in the
aggregate;
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3.7.7 delayed or postponed the payment of accounts payable or
other Liabilities either beyond 45 days from the payment
due date or outside the Ordinary Course;
3.7.8 cancelled, compromised, waived, or released any right or
claim (or series of related rights and claims) either
involving more than $5,000 or outside the Ordinary Course;
3.7.9 granted any license or sublicense of any rights under or
with respect to any Intellectual Property;
3.7.10 changed or authorized any change in its charter or bylaws;
3.7.11 experienced any damage, destruction, or loss (whether or
not covered by insurance) to its property in excess of
$5,000;
3.7.12 entered into any employment contract or collective
bargaining agreement, written or oral, or modified the
terms of any existing such contract or agreement;
3.7.13 granted any increase in the compensation of any of the
directors, officers, and employees of the Seller outside
the Ordinary Course;
3.7.14 adopted, amended, modified, or terminated any bonus,
profit-sharing, incentive, severance, or other plan,
contract, or commitment for the benefit of any of the
directors, officers, and employees of the Seller or taken
any such action with respect to any other Employee Benefit
Plan except as set forth in Section 3.7.14 to the
Disclosure Schedule;
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3.7.15 made any other change in employment terms for any of the
directors, officers, and employees of the Seller outside
the Ordinary Course;
3.7.16 made or pledged to make any charitable or other capital
contribution outside the Ordinary Course; nor
3.7.17 committed to any of the foregoing.
3.8 Undisclosed Liabilities. To Seller's Knowledge, with respect to
the Business, Seller does not have any material Liability except
for (i) Liabilities set forth on the face of the most recent
balance sheet (including the notes thereof) of the Most Recent
Month End as set out in the U.S. A.P.A.; (ii) Liabilities which
have arisen after the Most Recent Month End in the Ordinary Course
as set out in the U.S. A.P.A. (none of which results from, arises
out of, relates to, is in the nature of, or was caused by any
breach of contract, breach of warranty, tort, infringement, or
violation of law) and (iii) Liabilities arising out of matters
disclosed on the Disclosure Schedules.
3.9 Legal Compliance. With respect to the Business, the Seller has
complied with all applicable laws (including rules, regulations,
codes, plans, injunctions, judgments, orders, decrees and rulings)
of federal, state, local, and foreign governments (and all
agencies thereof), and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has
been filed or commenced against it alleging any failure so to
comply, except where the failure to comply would not have a
material adverse effect on the business, financial condition,
operations, or results of the Business.
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3.10 Tax Matters.
3.10.1 The Seller has filed all Tax Returns that it was
required to file. All Taxes owed by the Seller
(whether or not shown on any Tax Return) have been
paid. There are no Security Interests on any of the
assets of the Seller that arose in connection with any
failure (or alleged failure) to pay any Tax. The
Seller is not currently the beneficiary of any
extension of time to file any Tax Return.
3.10.2 The Seller has withheld and paid all Taxes required to
have been withheld and paid in connection with amounts
paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party.
3.11 Real Property.
3.11.1 The Seller does not own any real property.
3.11.2 Section 3.11.2 of the Disclosure Schedule lists and
describes briefly all real property leased or
subleased to the Seller and that is included in the
Assets. The Seller has delivered to the Buyer correct
and complete copies of the leases and subleases listed
in Section 3.11.2 of the Disclosure Schedule. With
respect to each lease and sublease listed in Section
3.11.2 of the Disclosure Schedule:
3.11.2.1 the lease or sublease is legal, valid,
binding, enforceable, and in full force and
effect in all material respects;
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3.11.2.2 to Seller's Knowledge, no party to the lease
or sublease is in breach or default, and no
event has occurred which, with notice or
lapse of time, would constitute a breach or
default or permit termination, modification,
or acceleration thereunder;
3.11.2.3 no party to the lease or sublease has
repudiated any provision thereof;
3.11.2.4 there are no material disputes, oral
agreements, or forbearance programs in effect
as to the lease or sublease;
3.11.2.5 the Seller has not assigned, transferred,
conveyed, mortgaged, deeded in trust, or
encumbered any interest in the leasehold or
subleasehold; and
3.11.2.6 all facilities leased or subleased thereunder
have received all approvals of governmental
authorities (including material licenses and
permits) required in connection with the
operation thereof and have been operated and
maintained in accordance with applicable
laws, rules, and regulations in all material
respects.
3.12 Intellectual Property.
3.12.1 The Seller owns or has the right to use pursuant to
license, sublicense, agreement, or permission all
Intellectual Property (included in the Assets) which
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is necessary for the operation of the Business as
presently conducted. Each such item of Intellectual
Property owned or used by the Seller immediately prior
to the Closing hereunder will be owned or available
for use by the Buyer on identical terms and conditions
immediately subsequent to the Closing hereunder.
3.12.2 To Seller's Knowledge, except as set forth on Section
3.12.2 of the Disclosure Schedule, the Seller has not
interfered with, infringed upon or misappropriated any
Intellectual Property rights of third parties in any
material respect. The Seller has not received any
complaint, claim, demand, or notice alleging any such
interference, infringement, misappropriation, or
violation (including any claim that the Seller must
license or refrain from using any Intellectual
Property rights of any third party). To Seller's
Knowledge, except as set forth on Section 3.12.2 of
the Disclosure Schedule, no third party has interfered
with, infringed upon, misappropriated, or otherwise
come into conflict with any Intellectual Property
rights of the Seller in any material respect.
3.12.3 Section 3.12.3 of the Disclosure Schedule identifies
each patent (including issuing country, number,
current assignee of record, title and issue date),
each trademark and service xxxx registration
(including issuing country, number, description of
xxxx, current owner of record, classes of goods or
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services, and issue date), each unregistered trademark
and service xxxx that is material to the operation of
the Business for which no application for registration
is pending (including a description of the xxxx and
the goods or services with which it is used) and each
copyright registration (including issuing country,
number, title or description of work, current owner of
record and issue date) currently in effect, owned by
the Seller and included in the Assets; identifies each
pending patent application (including country of
filing, serial number, current owner of record, title
and filing date), application for registration of a
trademark or service xxxx (including country of
filing, serial number, description of xxxx, current
owner of record, classes of goods or services, and
filing date), which the Seller has made with respect
to any of its Intellectual Property which is included
in the Assets; and identifies each license, agreement,
or other permission which the Seller has granted to
any third party with respect to any of its owned
Intellectual Property (together with any exceptions)
which is included in the Assets. The Seller has
delivered to the Buyer correct and complete copies of
all such patents, registrations, applications,
licenses, agreements and permissions (as amended to
date). With respect to each item of Intellectual
Property that the Seller owns and which is included in
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the Assets, except as otherwise set forth in Section
3.12.3 to the Disclosure Schedule:
3.12.3.1 the Seller possesses all right, title, and
interest in and to the item, free and clear
of any Security Interest, license, or other
restriction;
3.12.3.2 the item is not subject to any outstanding
injunction, judgment, order, decree, or
ruling;
3.12.3.3 no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or
demand is pending or, to Seller's Knowledge,
is threatened which challenges the legality,
validity, enforceability, use, or ownership
of the item; and
3.12.3.4 the Seller has not agreed to indemnify any
Person for or against any interference,
infringement, misappropriation, or other
conflict with respect to the item.
3.12.4 Section 3.12.4 of the Disclosure Schedule identifies
each item of Intellectual Property, material to the
conduct of the Business, that any third party owns and
that the Seller uses in the Business pursuant to
license, sublicense, agreement, or permission. The
Seller has delivered to the Buyer correct and complete
copies of all such licenses, sublicenses, agreements,
and permissions (as amended to date). With respect to
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each item of Intellectual Property required to be
identified in Section 3.12.4 of the Disclosure
Schedule:
3.12.4.1 the license, sublicense, agreement, or
permission covering the item is legal, valid,
binding, enforceable, and in full force and
effect in all material respects;
3.12.4.2 to Seller's Knowledge, no party to the
license, sublicense, agreement, or permission
is in material breach or default, and no
event has occurred which with notice or lapse
of time would constitute a material breach or
default or permit termination, modification,
or acceleration thereunder; and
3.12.4.3 the Seller has not granted any sublicense or
similar right with respect to the license,
sublicense, agreement, or permission.
3.13 Inventory. The inventory of the Business, net of reserves,
consists of raw materials, work in process, and finished goods,
all of which is saleable in the Ordinary Course, and none of which
is damaged or defective.
3.14 Contracts. Section 3.14 of the Disclosure Schedule lists the
following contracts and agreements to which the Seller is a party
and which relate to the Business:
3.14.1 any agreement (or group of related agreements) for the
lease of personal property to or from any Person
providing for lease payments in excess of $1,000 per
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annum;
3.14.2 any agreement (or group of related agreements) for the
purchase or sale of raw materials, commodities,
supplies, products, or other personal property, or for
the furnishing or receipt of services, the performance
of which will extend over a period of more than one
year, result in a material loss to the Seller, or
involve consideration in excess of $5,000;
3.14.3 any agreement concerning a partnership or joint
venture;
3.14.4 any agreement (or group of related agreements) under
which it has created, incurred, assumed, or guaranteed
any indebtedness for borrowed money, or any
capitalized lease obligation under which it has
imposed a Security Interest on any of its assets,
tangible or intangible;
3.14.5 any agreement outside the Ordinary Course concerning
confidentiality, or any agreement concerning
noncompetition;
3.14.6 any profit sharing, stock option, stock purchase,
stock appreciation, deferred compensation, severance,
or other material plan or arrangement for the benefit
of the current or former directors, officers, and
employees of the Seller;
3.14.7 any collective bargaining agreement;
3.14.8 any agreement for the employment of any individual on
a full-time, part-time, consulting, or other basis;
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3.14.9 any agreement under which the consequences of a
default or termination could have a material adverse
effect on the business, financial condition,
operations, or results of operation of the Seller; and
3.14.10 any other agreement (or group of related agreements)
the performance of which involves consideration in
excess of $5,000.
The Seller has delivered to the Buyer a correct and complete copy
of each written agreement listed in Section 3.14 of the Disclosure
Schedule (as amended to date) and a written summary setting forth
the terms and conditions of each oral agreement referred to in
Section 3.14 of the Disclosure Schedule. With respect to each
such agreement: (i) the agreement is legal, valid, binding,
enforceable, and in full force and effect in all material
respects; (ii) the Seller is not in material breach or default,
and to Seller's Knowledge no other party is in breach or default,
and no event has occurred which with notice or lapse of time would
constitute a material breach or default, or permit termination,
modification, or acceleration, under the agreement; (iii) each
such agreement will continue to be valid, binding, enforceable and
in full force and effect on identical terms following the
consummation of the transactions contemplated hereby (including
the assignments and assumptions referred to in Article 2 above).
3.15 Notes and Accounts Receivable. All notes and accounts receivable
of the Business are reflected properly on its books and records,
are valid receivables, and are subject to no setoffs or
counterclaims and are collectible, subject only to (i) the reserve
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for bad debts set forth on the face of the most recent balance
sheet (rather than in any notes thereto) as of the Most Recent
Month End as adjusted for the passage of time through the Closing
Date in accordance with the past custom and practice of the Seller
and (ii) any return or allowance made in the Ordinary Course, the
total of which does not exceed 4.5% of the amount of notes and
accounts receivable shown on the Final Closing Balance Sheet as
set out in the U.S. A.P.A.
3.16 Insurance. Section 3.16 of the Disclosure Schedule sets forth the
following information with respect to each material insurance
policy (including policies providing property, casualty,
liability, and workers' compensation coverage and bond and surety
arrangements) to which the Seller is a party, a named insured, or
otherwise the beneficiary of coverage and which relate to the
Business:
3.16.1 the name, address, and telephone number of the agent;
3.16.2 the name of the insurer, the name of the policyholder,
and the name of each covered insured;
3.16.3 the policy number and the period of coverage;
3.16.4 the scope (including an indication of whether the
coverage was on a claims made, occurrence, or other
basis) and amount (including a description of how
deductibles and ceilings are calculated and operate)
of coverage; and
3.16.5 a description of any retroactive premium adjustments
or other loss-sharing arrangements.
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Section 3.16 of the Disclosure Schedule describes any material
self-insurance arrangements affecting the Seller and which relate
to the Business.
3.17 Litigation. Section 3.17 of the Disclosure Schedule sets forth
each instance in which the Seller (i) is subject to any
outstanding injunction, judgment, order, decree or ruling or (ii)
is a party or, to Seller's Knowledge, is threatened to be made a
party to any action, suit, proceeding, hearing, or investigation
of, in, or before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator.
3.18 Product Warranty. Each product manufactured, sold, leased, or
delivered by the Business has been in material conformity with all
applicable commitments and warranties. Section 3.18 of the
Disclosure Schedule includes copies of the standard terms and
conditions of sale or lease for the Business (containing
applicable guaranty, warranty, and indemnity provisions).
3.19 Product Liability. Except as described in Section 3.19 of the
Disclosure Schedule, to Seller's Knowledge, the Seller does not
have any Liability arising out of any injury to individuals or
damage to property as a result of the ownership, possession, or
use of any product manufactured, sold, leased, or delivered by the
Seller and which relates to the Business.
3.20 Employees. To Seller's Knowledge, no executive or key employee of
the Business has notified the Seller that he or she plans to
terminate employment with the Seller during the next twelve
months. As used in the preceding sentence, "key employee" means
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any all employees who report directly to Xxxxxx Xxxxx and all
employees who report directly to the direct reports of Xxxxxx
Xxxxx. Except as listed in Section 3.20 of the Disclosure
Schedule, with respect to the Business, the Seller is not a party
to or bound by any collective bargaining agreement, nor has it
experienced any strikes, material grievances, claims of unfair
labor practices, or other collective bargaining disputes within
the past year. To Seller's Knowledge, the Seller has not
committed any material unfair labor practice. To Seller's
Knowledge, there is not any organizational effort presently being
made or threatened by or on behalf of any labor union with respect
to employees of the Business.
3.21 Employee Benefits.
3.21.1 Section 3.21.1 of the Disclosure Schedule lists each
Employee Benefit Plan that the Seller maintains or to
which the Seller contributes with respect to the
Business.
3.21.1.1 Each such Employee Benefit Plan (and each
related trust, insurance contract, or fund)
complies in form and in operation in all
material respects with applicable laws.
3.21.1.2 All contributions (including all employer
contributions and employee salary reduction
contributions) which are due have been paid
to each such Employee Benefit Plan which is
an employee pension benefit plan and all
contributions for any period ending on or
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before the Closing Date which are not yet due
have been paid to each such employee pension
benefit plan or accrued in accordance with
the past custom and practice of the Seller.
All premiums or other payments which are due
for all periods ending on or before the
Closing Date have been paid with respect to
each such Employee Benefit Plan which is an
employee welfare benefit plan.
3.21.2 The Seller does not maintain, has not maintained, does
not contribute, has not contributed, and has not been
required to contribute, to any employee welfare
benefit plan providing medical, health, or life
insurance or other welfare-type benefits for current
or future retired or terminated employees, their
spouses, or their dependents.
3.22 Guaranties. Except as listed in Section 3.22 of the Disclosure
Schedule, the Seller is not a guarantor or otherwise is liable for
any Liability or obligation (including indebtedness) of any other
Person. Section 3.22 of the Disclosure Schedule also sets forth
an accurate and complete list showing the name and address of each
bank in which the Business has an account or lockbox, the number
of any such account or lockbox, and the names of all persons
authorized to drawn thereon or have access thereto.
3.23 Environment, Health, and Safety. Except as disclosed in Section
3.23 of the Disclosure Schedule:
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3.23.1 The Business conforms in all material respects with
all applicable Environmental Laws, and neither the
real property used by the Business nor any activities,
operations or conditions thereon currently are in
violation, in any material respect, of any applicable
Environmental Law.
3.23.2 Since January 1, 1991, to Seller's Knowledge, Seller
has timely filed all required reports, obtained all
required approvals, and generated and maintained all
required data, documentation and records with respect
to the Business under applicable Environmental Laws.
3.23.3 Seller has obtained all permits required under
applicable Environmental Laws necessary for the
operation of the Business, and currently is in
material compliance with all terms and conditions of
such environmental permits.
3.23.4 Prior to Seller's acquisition of any ownership or
leasehold interest in the real property it uses, to
Seller's Knowledge, no Regulated Materials were used,
handled, stored or disposed of on, at or beneath such
real property in violation of any applicable
Environmental Law. From and after Seller's
acquisition of its ownership or leasehold interest in
such real property, no Regulated Materials have been
used, handled, stored or disposed of on, at or beneath
the real property in violation in any material respect
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of any applicable Environmental Law by Seller or, to
Seller's Knowledge, by any other Person.
3.23.5 No gasoline or other aboveground or underground
storage tank is or was located at the real property
while the real property was owned or leased by Seller,
or to Seller's Knowledge, while the real property was
owned or leased by any other Person.
3.23.6 Seller has no knowledge of any pending investigation,
claim, action, charge, complaint, demand, suit,
hearing or other proceeding by any governmental
authority having jurisdiction over such matter under
any applicable Environmental Law, or by any other
Person, with respect to the Business or matters
relating thereto. Since January 1, 1991, Seller has
not received written notice of any claim (and to
Seller's Knowledge there exists no such claim) by any
Person alleging the violation of, or any potential
liability under, any applicable Environmental Law with
respect to the Business.
3.23.7 Except in a manner which did not constitute a
violation of any applicable Environmental Laws, to
Seller's Knowledge, neither Seller nor any other
Person has caused or permitted (i) any Regulated
Materials to be generated, stored on, placed, held,
generated or treated, or released, disposed or
discharged from, on, under or at any real property
used by Seller or any part thereof (including any
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resulting groundwater contamination), or (ii) the off-
site disposal of Regulated Materials at any other
location.
3.23.8 Seller has no knowledge of any area on the real
property it uses as to its previously being used as a
dump site for any waste materials, whether or not such
historic disposal activities constituted a violation
of any applicable Environmental Law.
3.23.9 To Seller's Knowledge, the real property used by the
Business does not contain asbestos in any form other
than the asbestos around certain pipes identified in
Seller's report prepared by Xxxxxxx and as noted in
Section 3.23.9 of the Disclosure Schedule.
3.23.10 Concurrently with or prior to the date of Seller's
delivery of the Disclosure Schedules, to Seller's
Knowledge, Seller has delivered to Buyer true, correct
and complete copies of all reports, audits,
investigations, correspondence and notices received by
Seller relating to the presence of any Regulated
Materials at the real property used by the Business or
the violation of any applicable Environmental Law by
Seller.
3.24 Certain Business Relationships with Seller. To Seller's
Knowledge, except as set forth on Section 3.24 to the Disclosure
Schedule, no Affiliate or officer, director or employee of the
Seller has been involved in any material business arrangement or
relationship with the Business within the past twelve months, and
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no such Affiliate, officer, director or employee owns any material
asset, tangible or intangible, which is used in the Business.
3.25 Tangible Assets. Each tangible Asset is in good operating
condition and repair (subject to normal wear and tear).
3.26 Customers. To Seller's Knowledge, as of the date of this
Agreement, no customer of the Business has notified Seller that it
intends to stop purchasing products of the Business as a result of
the Seller's completing the transactions contemplated by this
Agreement.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
The Buyer represents and warrants to the Seller that the statements
contained in this Article 4 are correct and complete as of the date of
this Agreement and will be correct and complete as of the Closing Date
(as though made then and as though the Closing Date were substituted
for the date of this Agreement throughout this Article 4).
4.1 Organization of the Buyer. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of Great
Britain.
4.2 Authorization of Transaction. The Buyer has full power and
authority to execute and deliver this Agreement and the Ancillary
Agreements, and to perform its obligations hereunder and
thereunder. This Agreement and the Ancillary Agreements
constitute the valid and legally binding obligations of the Buyer,
enforceable in accordance with their terms and conditions.
4.3 Noncontravention. Neither the execution and the delivery of this
Agreement and the Ancillary Agreements, nor the consummation of
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the transactions contemplated hereby and thereby (including the
assignments and assumptions referred to in Article 2 above), will
(i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which the Buyer is subject or any provision of the charter or
bylaws of the Buyer or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under, any agreement, contract,
lease, license, instrument, or other arrangement to which the
Buyer is a party or by which it is bound or to which any of its
assets are subject (or result in the imposition of any Security
Interest upon any of its assets), except where the violation,
conflict, breach, default, acceleration, termination,
modification, cancellation, failure to give notice, or Security
Interest would not have a material adverse effect on the business,
financial condition, operations or results of operation of Buyer
or on the ability of the Parties to consummate the transactions
contemplated by this Agreement. The Buyer does not need to give
any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated
by this Agreement (including the assignments and assumptions
referred to in Article 2 above), except where the failure to give
notice, make a filing, or obtain authorization, consent or
approval would not have a material adverse effect on the business,
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financial condition, operations or results of operation of Buyer
or on the ability of the Parties to consummate the transactions
contemplated by this Agreement.
4.4 Brokers' Fees. The Buyer has no Liability or obligation to pay
any fees or commissions to any broker, finder, or agent retained
by the Buyer with respect to the transactions contemplated by this
Agreement for which the Seller could become liable or obligated.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
5.1 General. Except as otherwise provided, each Party will, acting
diligently and in good faith, use all its reasonable efforts to
take all action and to do all things necessary, proper or
advisable to consummate and make effective the transactions
contemplated by this Agreement (including satisfying the closing
conditions set forth in Article 7 below).
5.2 Notices and Consents.
5.2.1 As soon as practicable after the execution of this
Agreement, the Seller will give any required notices to any
person and will commence to take all reasonable action
required to obtain all consents, authorizations, approvals
and agreements ("Consents") of all persons (including any
authorization or approval required by ISRA) necessary to
authorize, approve, or permit the full and complete grant,
bargain, sale, conveyance, assignment and transfer by the
Seller to the Buyer as contemplated by this Agreement. The
Seller will continue such efforts after the Closing Date,
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if required by the Buyer, at no additional cost to the
Buyer. If any Consent is not obtained by the Closing and
the Buyer nevertheless elects to close the transaction
contemplated by this Agreement, the Seller will cooperate
with the Buyer in any reasonable arrangement to provide the
Buyer with the benefits under or with respect to the matter
as to which the relevant Consents were not obtained. Each
Party will file any notification and report forms and
related material that such Party may be required to file
with any governmental authority (including those required
by the HSR Act), will use its reasonable efforts to obtain
the expiration or early termination of the applicable
waiting period (or any extension thereof) for any required
pre-acquisition notice (including those required by the HSR
Act), and will make any further filings, including the
submission of any additional information or documentary
material, pursuant thereto that may be necessary, proper or
advisable.
5.3 Operation of Business. The Seller, with respect to the Business,
will not engage in any practice, take any action, embark on any
course of inaction, or enter into any transaction outside the
Ordinary Course. Without limiting the foregoing, the Seller will
not engage in any matter described in Section 3.7 above.
5.4 Preservation of Business. The Seller will use its reasonable best
efforts to keep the Business and Assets intact, including its
present operations, physical facilities, working conditions and
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relationships with lessors, licensors, suppliers, customers and
employees.
5.5 Access. After reasonable prior notice delivered by Buyer, the
Seller will permit representatives of the Buyer to have access at
all reasonable times, and in a manner so as not to interfere with
the normal business operations of the Business, to all premises,
properties, books, records, contracts, Tax records and documents
of or pertaining to the Business in order to conduct any
investigation (including environmental assessments) of the
Business.
5.6 Notice of Developments. The Seller will give prompt written
notice to the Buyer of any material development, of which it
becomes aware, affecting the assets, Liabilities, business,
financial condition, operations or results of operation of the
Business. Each Party will give prompt written notice to the other
of any material development affecting the ability of the Parties
to consummate the transactions contemplated by this Agreement.
Seller shall have the right to revise the Disclosure Schedules
before the Closing Date, subject to the Buyer's right to accept or
reject such revisions pursuant to Section 7.1.11.
5.7 Exclusivity. The Seller will not (and the Seller will not cause
or permit any of its Affiliates to) (i) solicit, initiate or
encourage the submission of any proposal or offer from any Person
relating to any (A) liquidation, dissolution or recapitalization,
(B) merger or consolidation, (C) acquisition or purchase of a
substantial portion of the Assets, or (D) similar transaction or
business combination involving the Business or (ii) participate in
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any discussions or negotiations regarding, furnish any information
with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any Person to do or seek any
of the foregoing.
5.8 Bulk Sales or Transfer Laws. The Seller agrees to indemnify the
Buyer from and against any and all Liabilities arising from
Seller's failure to comply with any applicable bulk sales law.
6 POST-CLOSING COVENANTS The Parties agree as follows with respect to
the period following the Closing.
6.1 General. In case at any time after the Closing any further action
is necessary or desirable to carry out the purposes of this
Agreement, each Party will take such further action (including the
execution and delivery of such further instruments and documents)
as the other Party reasonably may request, all at the sole cost
and expense of the requesting Party (unless the requesting Party
is entitled to indemnification therefor under Article 8 below).
The Seller acknowledges and agrees that from and after the Closing
the Buyer will be entitled to possession of all documents, books,
records, agreements and financial data of any sort relating to the
Business (other than information relating to the Retained Assets
or Retained Liabilities).
6.2 Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any charge, complaint,
action, suit, proceeding, hearing, investigation, claim or demand
in connection with (i) any transaction contemplated under this
Agreement or (ii) any fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident,
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action, failure to act or transaction on or prior to the Closing
Date involving the Business, the other Party will cooperate with
him or it and his or its counsel in the contest or defense, make
available its personnel and provide such testimony and access to
its books and records as shall be reasonably necessary in
connection with the contest or defense, all at the sole cost and
expense of the contesting or defending party (unless the
contesting or defending Party is entitled to indemnification
therefor under Article 8 below).
6.3 Transition. The Seller will refer, and will cause its Affiliates
to refer, all customer inquiries relating to the Business to the
Buyer from and after the Closing.
6.4 Tax Matters. Seller and Buyer shall (i) each provide the other
with such assistance as may reasonably be requested by either of
them in connection with the preparation of any return, audit, or
other examination by any tax authority or judicial or
administrative proceedings relating to liability for Taxes, (ii)
each retain and provide the other with any records or other
information that may be relevant to such return, audit or
examination, proceeding or determination, and (iii) each provide
the other with any final determination of any such audit or
examination, proceeding or determination that affects any amount
required to be shown on any return of the other for any period.
Without limiting the generality of the foregoing, Seller and Buyer
shall retain until the applicable statutes of limitation
(including any extensions) have expired, copies of all returns,
supporting work schedules and other records or information that
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may be relevant to such returns for all tax periods or portions
thereof ending before or including the Closing Date and shall not
destroy or otherwise dispose of any such records without first
providing the other party with a reasonable opportunity to review
and copy the same.
6.5 Confidentiality. The Seller will treat and hold as such all
confidential information relating to the Business, refrain from
using any of such confidential information except in connection
with this Agreement and deliver promptly to the Buyer or destroy,
at the request of the Buyer, all tangible embodiments (and all
copies) of such confidential information which are in its
possession. As used in the preceding sentence, "confidential
information relating to the Business" shall mean know-how, trade
secrets, customer and supplier lists, marketing plans and
strategies, designs, pricing and cost information, drawings,
technical information and other proprietary information relating
to the Business but shall not include information that (i) is
publicly known (other than as a result of Seller's disclosure in
violation of this Agreement), (ii) is disclosed to Seller by a
third party that is not under any duty of confidentiality to
Buyer, or (iii) is developed independently by or on behalf of
Seller after the Closing Date. In the event the Seller is
requested or required (by oral question or request for information
or documents in any legal proceeding, interrogatory, subpoena,
civil investigative demand or similar process) to disclose any
confidential information, the Seller will notify the Buyer
promptly of the request or requirement so that the Buyer may seek
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an appropriate protective order or waive compliance with the
provisions of this Section 6.5. If, in the absence of a
protective order or the receipt of a waiver under this Section
6.5, the Seller is, on the advice of counsel, compelled to
disclose any confidential information to any tribunal or else
stand liable for contempt, the Seller may disclose the
confidential information to the tribunal. However, the Seller
shall use its reasonable best efforts to obtain, at the reasonable
request and expense of the Buyer, an order or other assurance that
confidential treatment will be accorded to such portion of the
confidential information required to be disclosed as the Buyer
shall designate. The foregoing provisions shall not apply to any
confidential information which is generally available to the
public immediately prior to the time of disclosure.
6.6 [Intentionally Omitted]
6.7 Disclosures. Before Closing, no Party, without the prior written
consent of the other Party, will issue any press release or any
similar public announcement concerning the transactions
contemplated by this Agreement. However, if in the opinion of
counsel to any Party (which opinion shall be confirmed in writing
by such counsel and promptly delivered to the other Party before
disclosure), such disclosure is required by law or regulations of
a stock exchange, the Parties will cooperate in preparing a press
release or releases, and unless the Parties otherwise agrees, such
disclosures shall be limited to the disclosures so required in the
opinion of counsel.
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6.8 Environmental Matters. The Buyer shall not assume, and the Seller
shall remain solely responsible for, the following Liabilities
which shall be Retained Liabilities: All Liabilities of any
nature whatsoever whenever arising under or from compliance with
any Environmental Laws, based upon any events occurring or
conditions existing on or before the Closing Date (whether or not
there is a migration or spreading after the Closing Date),
relating in any manner to (i) operations conducted by the Seller,
its Affiliates or predecessors, or (ii) the Assets or any
facilities owned, leased or used by the Seller, its Affiliates or
predecessors (whether or not such facilities are included in the
Assets), whether such Liabilities relate to on-site or to a
location other than such facilities, including without limitation
any liability arising pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq. or similar state or local laws.
6.9 Change of Lockbox Accounts. The Seller shall take such steps as
Buyer may reasonably request to cause Buyer, effective as of the
Closing Date, to be substituted as the sole party having control
over any lockbox to which customers of the Seller make payments,
and to transfer to Buyer, effective as of the Closing Date, the
bank accounts associated with such lockboxes, as well as other
bank accounts specified by Buyer which are disbursement accounts.
6.10 Employees and Employee Benefit Plans.
6.10.1 Employment of Transferred Employees.
6.10.1.1 On the Closing Date, Seller shall make
available for employment, and Buyer shall
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offer to employ, all Active Employees. The
Active Employees who accept such offers shall
become "Transferred Employees" as of the
Closing Date. Except for any limitation
imposed by a collective bargaining agreement,
the Parties agree that the employment
relationship between the Transferred
Employees and the Buyer shall be at will,
that it shall be a new employment
relationship and that the Buyer is not
intended to be, and is not, successor to the
Seller in any legal sense with respect to the
employment relationships existing prior to
the Closing Date between such Transferring
Employees and the Seller.
6.10.1.2 The employment offers referenced in Section
6.10.1.1 above shall be at a wage or salary
level, whichever is applicable, that is
equivalent to the wage or salary level,
whichever is applicable, of each such
employee immediately prior to the Closing
Date. Each such offer of employment to
Active Employees shall also include employee
benefit plans, programs and policies that are
substantially comparable in the aggregate to
the employee benefits of each such employee
immediately prior to the Closing Date (the
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"Prior Employee Benefits"), except that
coverage to Transferred Employees shall not
be subject to any waiting period requirement,
exceptions for pre-existing conditions or gap
period requirement in addition to what was
provided by the Prior Employee Benefits.
6.10.1.3 It is understood, however, that the employee
benefit plans included in the offers of
employment for any Transferred Employees of
the Business may not extend beyond medical
insurance, severance, disability insurance,
life insurance and dental insurance which are
substantially comparable to those that Seller
provides to its Active Employees of the
Business at the date of this Agreement. It
is also understood that neither Seller nor
Buyer will have any obligation to continue
any supplemental benefit plan, stock options,
SARs, profit sharing arrangement, Rabbi
Trust, or other incentive compensation
arrangement Seller may have with any Active
Employee.
6.10.2 Prior Service Credit. For purposes of eligibility,
vesting, and benefits accrual, the Buyer will ensure that
its employee benefit plans for Transferred Employees treat
employment with the Seller prior to the Closing Date the
same as employment with the Buyer after the Closing Date
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("Seller's Prior Service Credit"). Seller's Prior Service
Credit for each Transferred Employee is noted on Exhibit
6.10.2.
6.10.3 Certain Retained Liabilities of the Seller.. The Buyer
shall not assume, and the Seller shall remain solely
responsible for, the following Liabilities and obligations
which shall be Retained Liabilities:
6.10.3.1 All Liabilities and obligations of whatever nature
arising out of, asserted by or relating to past,
present or retired employees of the Seller or its
Affiliates who are not Transferred Employees,
whenever arising, including without limitation (i)
those pertaining to benefits, rights,
entitlements, expense reimbursements, salary,
payroll or other payments, and (ii) those arising
by reason of the transfer or non-transfer of
employees contemplated by this Section 6.10;
6.10.3.2 Except for those liabilities, if any, accrued on
the Final Closing Balance Sheet (as set out in the
U.S. A.P.A. but only to the extent of such
accrual) pursuant to Section 1.6.1 above, all
Liabilities and obligations of whatever nature
arising out of, asserted by or relating to
Transferred Employees, whenever arising, including
without limitation those pertaining to benefits,
rights, entitlements, expense reimbursements,
salary, payroll or other payments, to the extent
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such Liabilities and obligations result from (i)
Buyer's failure to adopt or continue any employee
benefits which were provided by Seller or (ii) an
Occurrence taking place (or relating to a period)
on or before the Closing Date; provided, however,
with respect to the preceding clause (ii) that
with respect to Liabilities resulting from
workplace conditions or exposures which continue
after the Closing Date and for which the initial
claim is asserted after the Closing Date, Seller
shall remain responsible for the proportion of
such Liabilities attributable to periods on or
prior to the Closing Date and Buyer shall be
responsible for the proportion of such Liabilities
attributable to periods after the Closing Date.
6.10.4 Nonduplication. Nothing in this Section 6.10 shall cause
duplicate contributions or benefits to be paid to or with
respect to any employee.
6.10.5 No Changes. Except in the Ordinary Course pursuant to
Seller's customary merit review policies, without the
Buyer's prior written consent, the Seller shall neither
make nor permit any material change to be made in salaries,
wages, employee benefit plans or other benefits from the
date hereof through the Closing Date.
6.10.6 Certain Reservations of Rights by the Buyer.
6.10.6.1 Nothing herein expressed or implied shall confer
upon any Person (including any Transferred
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Employee or any other past or present employees of
the Seller or its Affiliates) other than the
Seller any rights or remedies of any nature or
kind whatsoever, including any right to employment
by the Buyer for any period or under any
particular terms and conditions or any third-party
beneficiary rights hereunder.
6.10.6.2 Nothing herein shall prevent the Buyer at any time
or times after the Closing Date from terminating,
reassigning, promoting or demoting individual
personnel or changing adversely or favorably the
titles, powers, duties, responsibilities,
functions, locations, salaries, other
compensation, or terms and conditions of
employment of officers and employees of the Buyer.
6.10.6.3 Nothing herein shall restrict in any way the right
of the Buyer at any time or times after the
Closing Date to establish, amend or terminate any
employee benefit plan, arrangement, program,
practice, policy or procedure.
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6.11 Discharge of Retained Liabilities. Seller shall discharge
all Retained Liabilities in a timely manner. No disclosure
made by Seller (including any set out in the Disclosure
Schedule) shall limit or modify any Retained Liability or
Seller's obligation to satisfy such Retained Liability.
6.12 Existence and Name. The Seller agrees (i) to maintain its
corporate existence at least until January 15, 2000 and to
notify Buyer (at least 30 days in advance) should it decide
thereafter to dissolve and (ii) to change its name to a
name not confusingly similar to "Alpha" or "Alpha Wire".
7 CONDITIONS TO OBLIGATION TO CLOSE
7.1 Conditions to Obligation of the Buyer. The obligation of the
Buyer to consummate the transactions to be performed by it in
connection with Closing is subject to satisfaction of the
following conditions (or their waiver in writing by the Buyer):
7.1.1 the representations and warranties set forth in Article 3
above shall be true and correct in all material respects at
and as of the Closing Date;
7.1.2 the Seller shall have performed and complied with all of
its covenants that it must perform prior to the Closing;
7.1.3 the Seller shall have procured all Consents referred to in
Section 5.2 above;
7.1.4 no action, suit or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local or
foreign jurisdiction wherein an unfavorable judgment,
order, decree, stipulation, injunction or charge would (i)
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prevent consummation of any of the transactions
contemplated by this Agreement, (ii) cause any of the
transactions contemplated by this Agreement to be rescinded
following consummation or (iii) affect adversely the right
of the Buyer to own, operate or control the Assets or the
Business (and no such judgment, order, decree, stipulation,
injunction or charge shall be in effect);
7.1.5 the Seller shall have delivered to the Buyer a certificate
to the effect that each of the conditions specified above
in Sections 7.1.1 through 7.1.4 is satisfied in all
respects;
7.1.6 the Parties shall have received all authorizations,
consents and approvals of governments and governmental
agencies set forth in Exhibit 7.1.6;
7.1.7 the relevant Parties shall have entered into the Ancillary
Agreements in form and substance as set forth in Exhibit
7.1.7 of the U.S. A.P.A. (and with respect to the Supply
Agreement of the U.S. A.P.A., the Parties shall have agreed
on the pricing provisions and list of products), and the
same shall be in effect;
7.1.8 all actions to be taken by the Seller in connection with
consummation of the contemplated transactions and all
certificates, opinions, instruments and other documents
required to effect the contemplated transactions will be
reasonably satisfactory in form and substance to the Buyer;
7.1.9 on the Closing Date, there shall not exist any damage to or
destruction of any parts of the Business, the restoration
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costs of which would exceed $25,000 individually or
$100,000 in the aggregate;
7.1.10 at Buyer's request, the Seller shall have removed and
disposed of any Regulated Materials in storage on any real
property owned or leased by the Seller and used in the
Business, and the Seller shall have provided written
confirmation of such removal and disposal reasonably
satisfactory to the Buyer;
7.1.11 the Buyer in its discretion shall have found acceptable any
revisions of the Disclosure Schedules made by Seller
pursuant to Section 5.6;
7.1.12 the Seller shall have provided written evidence
satisfactory to Buyer of the termination and release of any
Security Interest covering any of the Assets, including
letters from the lenders containing payoff amounts and
reasonable assurance covenants in favor of Buyer;
7.1.13 the Buyer shall have completed its due diligence review and
inspections with respect to (i) environmental, health and
safety matters, (ii) all improvements to real property
(including storm sewers and sewer pipes), (iii) the
opposition proceedings noted in Section 3.12.2 of the
Disclosure Schedule and (iv) title to real property, and
the results of such review and inspections shall be
acceptable to the Buyer in its sole discretion; and
7.1.14 the parties to the U.S. A.P.A. have completed the
transactions contemplated by such agreements.
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7.2 Conditions to Obligation of the Seller. The obligation of the
Seller to consummate the transactions to be performed by it in
connection with the Closing is subject to satisfaction of the
following conditions (or their waiver in writing by the Seller):
7.2.1 the representations and warranties set forth in Article 4
above shall be true and correct in all material respects at
and as of the Closing Date;
7.2.2 the Buyer shall have performed and complied with all of
their covenants that they must perform prior to the
Closing;
7.2.3 no action, suit or proceedings shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local or
foreign jurisdiction wherein an unfavorable judgment,
order, decree, stipulation, injunction or charge would (i)
prevent consummation of any of the transactions
contemplated by this Agreement or (ii) cause any of the
transactions contemplated by this Agreement to be rescinded
following consummation (and no such judgment, order,
decree, stipulation, injunction or charge shall be in
effect);
7.2.4 the Buyer shall have delivered to the Seller a certificate
to the effect that each of the conditions specified abovein
Sections 7.2.1 through 7.2.3 is satisfied in all respects;
7.2.5 the Parties shall have received all authorizations,
consents and approvals of governments and governmental
agencies set forth in any attachment hereto;
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7.2.6 the relevant Parties shall have entered into the Ancillary
Agreements in form and substance as set forth in Exhibit
7.1.7 of the U.S. A.P.A. (and with respect to the Supply
Agreement of the U.S. A.P.A., the Parties shall have agreed
on the pricing provisions and list of products), and the
same shall be in effect;
7.2.7 all actions to be taken by the Buyer in connection with
consummation of the contemplated transactions and all
certificates, opinions, instruments and other documents
required to effect the contemplated transactions will be
reasonably satisfactory in form and substance to the
Seller; and
7.2.8 The parties to the U.S. A.P.A. have completed the
transactions contemplated by such agreement.
8 REMEDIES FOR BREACHES OF THIS AGREEMENT
8.1 Survival. All representations, warranties, and covenants of the
Parties contained in this Agreement shall survive the Closing and
continue in effect for the following periods:
8.1.1 Each Party's covenants shall continue forever;
8.1.2 Seller's representations and warranties shall expire as
follows: (i) with respect to Section 3.2 ("Authorization
of Transaction"), 3.5 ("Assets"), 3.21 ("Employee
Benefits"), and 3.23 ("Environment Health & Safety"), three
years after the Closing Date; and (ii) with respect to all
others, two years after the Closing Date.
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8.1.3 the Buyer's representations and warranties shall expire
three years after the Closing Date.
Each Party must assert any claim involving a representation,
warranty or covenant against the other Party before expiration of
any applicable survival period. Notwithstanding any contrary
provision, as long as the claim is asserted timely, the claim will
continue to be valid and assertible even though the survival
period may subsequently expire before the claim is resolved.
8.2 Indemnification Provisions for Benefit of the Buyer. If the
Seller breaches any of its representations, warranties, or
covenants contained in this Agreement (or in any of the Ancillary
Agreements, Schedules or Exhibits referred to herein), then the
Seller agrees to defend, indemnify and save harmless the Buyer,
its Affiliates and its and their directors, officers and
employees ("Buyer's Indemnified Group") from and against the
entirety of any Liability that any of the Buyer's Indemnified
Group may suffer through and after the date of the claim for
indemnification resulting from, arising out of, relating to, in
the nature of, or caused by the breach. The Seller also agrees to
defend, indemnify and save harmless the Buyer's Indemnified Group
from and against the entirety of any Liability that any of the
Buyer's Indemnified Group may suffer through and after the date of
the claim for indemnification resulting from, arising out of,
relating to, or in the nature of any of the Retained Liabilities.
8.3 Indemnification Provisions for Benefit of the Seller. If the
Buyer breaches any of its representations, warranties, or
covenants contained in this Agreement (or in any of the Ancillary
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Agreements, Schedules or Exhibits referred to herein), then the
Buyer agrees to defend, indemnify and save harmless the Seller,
its Affiliates and its and their directors, officers and employees
("Seller' Indemnified Group") from and against the entirety of any
liability that any of the Seller' Indemnified Group may suffer
through and after the date of the claim for indemnification
resulting from, arising out of, relating to, in the nature of, or
caused by the breach.
8.4 Matters Involving Third Parties. If any third party shall notify
any Party (the "Indemnified Party") with respect to any matter
which may give rise to a claim for indemnification against any
other Party (the "Indemnifying Party") under this Section 8, then
the Indemnified Party shall notify the Indemnifying Party thereof
promptly; provided, however, that no delay on the part of the
Indemnified Party in notifying any Indemnifying Party shall
relieve the Indemnifying Party from any liability or obligation
hereunder unless (and then solely to the extent) the Indemnifying
Party thereby is damaged. In the event any Indemnifying Party
notifies the Indemnified Party within 15 days after the
Indemnified Party has given notice of the matter that the
Indemnifying Party is assuming the defense thereof, (i) the
Indemnifying Party will defend the Indemnified Party against the
matter with counsel of its choice reasonably satisfactory to the
Indemnified Party, (ii) the Indemnified Party may retain separate
co-counsel at its sole cost and expense (except that the
Indemnifying Party will be responsible for the fees and expenses
of the separate co-counsel to the extent the Indemnified Party
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concludes reasonably that the counsel the Indemnifying Party has
selected has a conflict of interest), (iii) the Indemnified Party
will not consent to the entry of any judgment or enter into any
settlement with respect to the matter without the written consent
of the Indemnifying Party (not to be withheld unreasonably), and
(iv) the Indemnifying Party will not consent to the entry of any
judgment with respect to the matter, or enter into any settlement
which does not include a provision whereby the plaintiff or
claimant in the matter releases the Indemnified Party from all
Liability with respect thereto, without the written consent of the
Indemnified Party (not to be withheld unreasonably). If the
Indemnifying Party fails to notify the Indemnified Party within 15
days after the Indemnified Party has given notice of the matter
that the Indemnifying Party is assuming the defense thereof, the
Indemnified Party may defend against, or enter into any settlement
with respect to, the matter in any manner it reasonably may deem
appropriate.
8.5 Limitations on Indemnification.
8.5.1 Basket. Notwithstanding any contrary provision in this
Section 8, Buyer shall not make any claim for
indemnification under Section 8.2 for any breach by Seller
of any representation or warranty in Section 3 until the
aggregate amount of all such claims of the Buyer (whenadded
to the aggregate amount of the claims of BWC for any breach
by Alpha Wire of any representation or warranty in Section
3 of the U.S. A.P.A.) exceed the Basket of the U.S. A.P.A.,
in which event the Buyer's Indemnified Group shall be
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entitled to such indemnification for all amounts, including
all amounts forming any part of Basket.
8.5.2 Insurance Proceeds and Cap. Notwithstanding any contrary
provision in this Section 8, the Seller's liability under
this Agreement, except as noted below, shall not exceed
(when added to the aggregate amount of Alpha Wire's
liability under Section 8 of the U.S. A.P.A.) the Cap of
the U.S. A.P.A. Notwithstanding the preceding sentence,
the Cap will not apply, and Seller's liability will not be
so limited, with respect to the following:
(i) Section 6.5 ("Confidentiality");
(ii) Section 6.8 ("Environmental Matters");
(iii)Section 6.10.3 ("Certain Retained Liabilities of the
Seller");
(iv) Any of the representations and warranties noted in
Section 8.1.2 (i); or
(v) The indemnity covenant in Section 8.2 insofar as it
relates to any of the representations, warranties or
covenants noted above in subparts (i) - (iv) of this
Section 8.5.2.
Notwithstanding any contrary provision in this Section 8, any
claim asserted by any of the Buyer's Indemnified Group or any of
the Seller's Indemnified Group, as the case may be, will be
reduced by the amount of any insurance proceeds actually recovered
by the claimant which directly relates to such claim.
8.6 Arbitration. Any claim or dispute arising in connection with
Sections 8.2, 8.3, 8.4 or 8.5 of this Article 8 shall be finally
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settled by arbitration under the Commercial Arbitration rules and
the guidelines for Expediting Larger, Complex Commercial
Arbitrations of the American Arbitration Association, and judgment
upon the award rendered by the arbitrators may be entered in any
court having jurisdiction over it, provided each arbitrator, as
required by these procedures, has been appointed and the Parties
have agreed on the procedures to conduct the arbitration
(including discovery procedures) within 60 days after the Party
requesting arbitration has sent notice of its claim to the other
Party ("Deadline"). If any of such conditions is not met by the
Deadline (unless the failure to do so is beyond the reasonable
control of either Party, in which event the Deadline will be
extended for an additional 30 days), neither Party shall have any
obligation to arbitrate the claim unless they mutually agree to do
so; in such event, each Party may in its sole discretion withhold
its consent. There shall be three arbitrators, all of whom shall
be fully active in their respective occupations and shall conduct
themselves as neutrals, and whose chairman shall be an attorney
experienced in arbitrating large commercial disputes. Each party
shall appoint one arbitrator, and the two arbitrators shall
appoint the third. All arbitrators shall be compensated at their
normal hourly or per diem rates for all time spent by them in
connection with the arbitration proceedings. The arbitration
shall be held in Chicago, Illinois. A preliminary hearing shall
be held. The arbitrators shall actively manage the arbitration to
make it fair, expeditious, economical and less burdensome and
adversarial than litigation, and the award rendered shall not
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include punitive damages but shall state its reasoning. Any party
may request a court to provide interim relief without waiving the
agreement to arbitrate.
9 TERMINATION.
9.1 Termination of Agreement. The Parties may terminate this Agreement
as provided below:
9.1.1 the Parties may terminate this Agreement by mutual written
consent of all the Parties at any time prior to the
Closing;
9.1.2 the Buyer may terminate this Agreement by giving written
notice to the Seller at any time prior to the Closing if
the Seller is in breach, and the Seller may terminate this
Agreement by giving written notice to the Buyer at any time
prior to the Closing if the Buyer is in breach, of any
material representation, warranty, or covenant contained in
this Agreement in any material respect and which breach has
not been cured within ten days after receipt of written
notice of such breach;
9.1.3 the Buyer may terminate this Agreement by giving written
notice to the Seller at any time prior to the Closing if
the Closing shall not have occurred on or before January
31, 1997 by reason of the failure of any condition
precedent under Section 7.1 (unless the failure results
primarily from the Buyer's breaching any representation,
warranty, or covenant contained in this Agreement); or
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9.1.4 the Seller may terminate this Agreement by giving written
notice to the Buyer at any time prior to the Closing if the
Closing shall not have occurred on or before January 31,
1997 by reason of the failure of any condition precedent
under Section 7.2 (unless the failure results primarily
from the Seller's breaching any representation, warranty,
or covenant contained in this Agreement).
10 GENERAL MATTERS
10.1 No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and
their respective successors and permitted assigns.
10.2 Entire Agreement. This Agreement and the Ancillary Agreements
(including any schedules or attachments that are referenced in
such agreements) constitute the entire agreement among the Parties
and supersedes any prior understandings, agreements, or
representations by or among the Parties, written or oral, that
relate to the subject matter.
10.3 Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties and their respective
successors and permitted assigns. No Party may assign either this
Agreement or any of its rights, interests, or obligations
hereunder without the prior written approval of the other Parties;
provided, however, that the Buyer may (i) assign any of its rights
and interests under this Agreement to one or more of its
Affiliates and (ii) designate one or more of its Affiliates to
perform its obligations hereunder (in any or all of which cases
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the Buyer nonetheless shall remain liable and responsible for the
performance of all of its obligations hereunder).
10.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
10.5 Headings. The Article and section headings contained in this
Agreement and in the Schedules are inserted for convenience only
and shall not affect in any way the meaning or interpretation of
this Agreement.
10.6 Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given (i) when
actually delivered by hand or mail, (ii) when transmitted by
prepaid cable or telecopier, with confirmation of receipt,
provided that a copy is sent at about the same time by registered
or certified mail, return receipt requested, or (iii) five days
after being sent by Express Mail, Federal Express or other express
delivery service, to the addressee at the following addresses or
telecopier numbers (or to such other address or telecopier number
as a party may specify from time to time by notice hereunder):
If to the Seller: Alpha Wire Limited
x/x Xxxxx Xxxxxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Buyer: Belden U.K. Limited
c/o Belden Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Secretary
Telephone: 000-000-0000
Facsimile: 000-000-0000
10.7 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and
signed by the Buyer and the Seller. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant
under this Agreement, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant under this Agreement or affect
in any way any rights arising by virtue of any prior or subsequent
such occurrence.
10.8 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining
terms and provisions of this Agreement or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
10.9 Expenses. Each Party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with
this Agreement or the transactions contemplated by it. The Seller
agrees that except as disclosed in Exhibit 10.9, it has not paid
any amount to any third party, and will not pay any amount to any
third party until after the Closing, with respect to any of its
costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement or the transactions contemplated by
it.
10.10 Construction. The language used in this Agreement will be deemed
to be the language chosen by the Parties to express their mutual
intent, and no rule of strict construction shall be applied
against any Party. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules
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and regulations promulgated under them, unless the context
requires otherwise. The Parties intend that each representation,
warranty, and covenant contained in this Agreement shall have
independent significance. If any Party has breached any
representation, warranty, or covenant contained in this Agreement
in any respect, that there exists another representation,
warranty, or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the Party
has not breached shall not detract from or mitigate that the Party
is in breach of the first representation, warranty, or covenant.
10.11 Incorporation of Schedules. The Schedules identified in this
Agreement are incorporated by reference and made a part of this
Agreement.
10.12 Specific Performance. Each Party acknowledges and agrees that
the other Parties would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance
with their specific terms or otherwise are breached. Accordingly,
each Party agrees that the other Parties shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of
this Agreement and to enforce specifically this Agreement and the
terms and provisions of it in any action instituted in any court
having jurisdiction over the Parties and the matter, in addition
to any other remedy to which they may be entitled, at law or in
equity.
10.13 Governing Law. The laws of Illinois shall govern the
interpretation of this Agreement.
11 DISPUTE RESOLUTION
11.1 Settlement Attempt. The Parties agree that, except as provided in
Section 2.11, any claim or dispute between them arising out of or
in connection with this Agreement or any alleged breach of this
Agreement (a "Claim") shall be submitted promptly to an executive
of Seller and Buyer who shall have authority to settle the Claim,
and who shall meet in Chicago, Illinois, within 30 days of such
submission to seek in good faith an amicable settlement. In
seeking an amicable settlement, the Parties may consult with a
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neutral third party mediator if both agree in writing. Unless the
Parties agree to the contrary in writing, any advice or decision
of the mediator shall not be binding.
11.2 Litigation. Subject to Section 8.6, any Claim which is not
settled by the Parties within sixty (60) days of notice thereof
first being given by either Party to the other may be pursued by a
Party in any court having subject matter and personal
jurisdiction.
The Parties have executed this Agreement on the date first above
written.
BUYER: BELDEN U.K. LIMITED
By:/s/ Xxxxx X. Xxxxxxxxxx
Name:Xxxxx X. Xxxxxxxxxx
Title: Vice President
SELLER: ALPHA WIRE LIMITED
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
