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AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
BY AND AMONG
STAMFORD FHI ACQUISITION CORP.,
FIBERITE, INC.,
FIBERITE HOLDINGS, INC.
AND
HEXCEL CORPORATION
DATED AS OF AUGUST 25, 1997
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TABLE OF CONTENTS
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ARTICLE I
PURCHASE AND SALE OF
ASSETS AND ASSUMPTION OF LIABILITIES
Section 1.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Consideration . . . . . . . . . . . . . . . . . . . . . 7
Section 1.3 Closing . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.4 Deliveries by Fiberite. . . . . . . . . . . . . . . . . 8
Section 1.5 Deliveries by Buyer . . . . . . . . . . . . . . . . . . 9
ARTICLE II-A
REPRESENTATIONS AND WARRANTIES OF
STAMFORD
Section 2A.1 Organization . . . . . . . . . . . . . . . . . . . . . 9
Section 2A.2 Authority. . . . . . . . . . . . . . . . . . . . . . . 9
Section 2A.3 No Violations. . . . . . . . . . . . . . . . . . . . . 10
Section 2A.4 No Undisclosed Arrangements. . . . . . . . . . . . . . 11
Section 2A.5 Certain Employees. . . . . . . . . . . . . . . . . . . 11
ARTICLE II-B
REPRESENTATIONS AND WARRANTIES OF
FIBERITE
Section 2B.1 Organization . . . . . . . . . . . . . . . . . . . . . 11
Section 2B.2 Authority. . . . . . . . . . . . . . . . . . . . . . . 11
Section 2B.3 No Undisclosed Arrangements. . . . . . . . . . . . . . 12
Section 2B.4 Certain Employees. . . . . . . . . . . . . . . . . . . 12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Section 3.1 Organization. . . . . . . . . . . . . . . . . . . . . . 12
Section 3.2 Authority . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.3 No Violations . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV
COVENANTS
Section 4.1 Conduct of Business . . . . . . . . . . . . . . . . . . 14
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Section 4.2 Access to Information . . . . . . . . . . . . . . . . . 19
Section 4.3 Commercially Reasonable Efforts; Other Actions. . . . . 19
Section 4.4 Public Announcements. . . . . . . . . . . . . . . . . . 20
Section 4.5 Notification of Certain Matters . . . . . . . . . . . . 20
Section 4.6 Expenses. . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.7 Insurance . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.8 Intellectual Property; Name . . . . . . . . . . . . . . 21
Section 4.9 Books and Records . . . . . . . . . . . . . . . . . . . 22
Section 4.10 Allocation of the Purchase Price. . . . . . . . . . . . 22
Section 4.11 Assignment of Contracts;
Non-assignability. . . . . . . . . . . . . . . . . . . 23
Section 4.12 Tax Cooperation . . . . . . . . . . . . . . . . . . . . 24
Section 4.13 No Dissolution of Fiberite. . . . . . . . . . . . . . . 24
Section 4.14 Certain Arrangements. . . . . . . . . . . . . . . . . . 25
Section 4.15 Use of Technology . . . . . . . . . . . . . . . . . . . 25
Section 4.16 Closing of Stock Purchase Agreement . . . . . . . . . . 25
Section 4.17 Alternative Transaction . . . . . . . . . . . . . . . . 25
Section 4.18 Cytec Asset Purchase Agreement. . . . . . . . . . . . . 26
ARTICLE V
TERMINATION AND ABANDONMENT
Section 5.1 Termination . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.2 Procedure for Termination . . . . . . . . . . . . . . . 27
Section 5.3 Effect of Termination and Abandonment . . . . . . . . . 27
ARTICLE VI
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 6.1 Survival of Representations and Warranties,
Covenants, etc. . . . . . . . . . . . . . . . . . . . 27
Section 6.2 Fiberite's and Stamford's Agreements to Indemnify . . . 28
Section 6.3 Buyer's Agreement to Indemnify. . . . . . . . . . . . . 29
Section 6.4 Indemnification Based on Net Damage . . . . . . . . . . 29
Section 6.5 Third Party Claims. . . . . . . . . . . . . . . . . . . 30
ARTICLE VII
MISCELLANEOUS
Section 7.1 Fees, Expenses and Taxes. . . . . . . . . . . . . . . . 31
Section 7.2 Further Assurances. . . . . . . . . . . . . . . . . . . 32
Section 7.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 7.4 Severability. . . . . . . . . . . . . . . . . . . . . . 34
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Section 7.5 Binding Effect; Assignment. . . . . . . . . . . . . . . 34
Section 7.6 Bulk Sales Law. . . . . . . . . . . . . . . . . . . . . 34
Section 7.7 No Third Party Beneficiaries. . . . . . . . . . . . . . 34
Section 7.8 Interpretation. . . . . . . . . . . . . . . . . . . . . 35
Section 7.9 Jurisdiction and Consent to Service . . . . . . . . . . 35
Section 7.10 Governing Law . . . . . . . . . . . . . . . . . . . . . 35
Section 7.11 Entire Agreement. . . . . . . . . . . . . . . . . . . . 36
Section 7.12 Amendment, Modification and Waiver. . . . . . . . . . . 36
Section 7.13 Specific Performance. . . . . . . . . . . . . . . . . . 36
Section 7.14 Counterparts. . . . . . . . . . . . . . . . . . . . . . 36
Section 7.15 Effective Date. . . . . . . . . . . . . . . . . . . . . 36
Section 7.16 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VIII
CERTAIN DEFINITIONS
EXHIBITS
EXHIBIT A Stock Purchase and Sale Agreement
EXHIBIT B Xxxx of Sale and Assignment
EXHIBIT C License Agreement
EXHIBIT D Undertaking
EXHIBIT E Transitional Services Agreement
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AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
This AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this
"Agreement"), dated as of August 25, 1997, is by and among Fiberite, Inc., a
Delaware corporation ("Fiberite"), Fiberite Holdings, Inc., a Delaware
corporation ("Fiberite Holdings"), Stamford FHI Acquisition Corp., a Delaware
corporation ("Stamford"), and Hexcel Corporation, a Delaware corporation
("Buyer", together with Fiberite, Fiberite Holdings and Stamford, the
"Parties") and amends and restates that certain Asset Purchase Agreement,
dated as of April 21, 1997, by and among the Stamford, Fiberite and Buyer.
RECITALS
A. Stamford has entered into a Stock Purchase and Sale Agreement
(the "Stock Purchase Agreement"), dated as of April 20, 1997, by and among,
Stamford, Fiberite Holdings, and the Selling Stockholders of Fiberite
Holdings providing for, among other things, the purchase and sale of all of
the outstanding shares of Common Stock of Fiberite Holdings and which is
attached hereto as Exhibit A.
B. Upon the closing of the transactions contemplated by the Stock
Purchase Agreement, Fiberite desires to sell to Buyer, and Buyer desires to
purchase from Fiberite, certain assets and operations of Fiberite as more
fully described herein, upon the terms and subject to the conditions set
forth herein.
C. Capitalized terms used but not otherwise defined herein are
defined in Article VIII hereof.
Now, therefore, in consideration of the mutual agreements herein and
in reliance upon the representations and warranties herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and intending to be legally bound hereby, the Parties hereby
agree as follows:
ARTICLE I
PURCHASE AND SALE OF
ASSETS AND ASSUMPTION OF LIABILITIES
Section I.1 PURCHASE AND SALE.
(a) Subject to the terms and conditions of this Agreement, at
the Closing, Fiberite and Fiberite Holdings will sell, convey, assign,
transfer and deliver to Buyer and Buyer will purchase, acquire and accept
from Fiberite, all of its rights, title and interests in and to all of the
following properties, contracts and other assets (the "Acquired Assets"):
(i) all rights, title, and interests
in and to the assets (of every kind, nature, character and
description, whether accrued, contingent or otherwise and wherever
situated), technology, goodwill, operations and business relating
exclusively to the Satellite Business (as defined herein) other than
(A) any real property or buildings, fixtures or improvements erected
thereon; (B) all leases of real property or contracts, commitments or
other agreements relating to real property; (C) equipment or (D)
accounts receivable (collectively the "Acquired Business");
(ii) the assets of Fiberite listed on Schedule 1.1(a)(ii);
(iii) all rights, claims and causes of action (including,
without limitation, claims and causes of action under insurance policies)
of Fiberite or Fiberite Holdings to the extent related to the Acquired
Business, Acquired Assets or Assumed Liabilities;
(iv) all Intellectual Property used or under development
for use exclusively in the Satellite Business (which is acknowledged to
include all of Fiberite's cyanate ester resin/prepreg technology) (the
"Acquired Intellectual Property");
(b) Such sale, assignment, transfer and
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delivery of the Acquired Assets will be effected by delivery by Fiberite and
Fiberite Holdings to Buyer of (i) a duly executed xxxx of sale and assignment
agreement (the "Xxxx of Sale and Assignment") substantially in the form set
forth as Exhibit B attached hereto, and (ii) such other duly executed, good
and sufficient instruments of conveyance, transfer and assignment as shall be
necessary to convey to Buyer all of Fiberite's and Fiberite Holdings' rights,
title and interests in and to the Acquired Assets (collectively, the "Other
Instruments").
(c) Notwithstanding anything contained herein to the contrary,
Fiberite and Fiberite Holdings shall not sell, convey, assign, transfer or
deliver, or cause to be sold, conveyed, assigned, transferred or delivered,
to Buyer, and Buyer shall not purchase, acquire or accept from Fiberite or
Fiberite Holdings, the rights, title and interests in and to any and all of
the properties, contracts or other assets of Fiberite or Fiberite Holdings or
any of their respective subsidiaries (including all cash, cash equivalents
and accounts receivable of Fiberite) other than the Acquired Assets (the
"Excluded Assets").
(d) On and as of the Closing Date (as defined in Section 1.3),
Buyer shall assume and agree to perform, pay and discharge, any and all
obligations and liabilities of Fiberite and Fiberite Holdings (whether
liquidated or unliquidated, known or unknown, contingent or otherwise)
arising exclusively from the Acquired Business or relating exclusively to the
Acquired Assets, other than any of the accounts payable of Fiberite
(collectively, the "Assumed Liabilities").
(e) On and as of the Closing Date Buyer shall not assume or
agree to perform, pay or discharge and Fiberite and Fiberite Holdings shall
retain any and all obligations and liabilities which are not Assumed
Liabilities, including without limitation, the following obligations and
liabilities of Fiberite and Fiberite Holdings (whether liquidated or
unliquidated, known or unknown, contingent or otherwise) (collectively, the
"Excluded Liabilities"):
(i) (A) any and all liabilities and obligations, direct
or indirect, fixed or contingent, for federal income taxes or any
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state, local or foreign income taxes for any taxable period (or portion
thereof);
(B) notwithstanding anything in this Agreement to
the contrary, any and all liabilities and obligations, direct or
indirect, fixed or contingent, for federal, state, local or foreign
income Taxes due as a result of any of the transactions contemplated
by this Agreement or the Cytec Asset Purchase Agreement (as defined in
Section 1.3) or any transactions occurring on the closing of the Stock
Purchase Agreement;
(ii) all post-retirement liabilities for medical, dental
and life insurance programs, for employees or former employees of Fiberite
Holdings and its subsidiaries;
(iii) all environmental liabilities and obligations,
including, without limitation, those arising from or relating to the
following sites: (A) American Chemical Services, Griffith, Indiana; (B)
Artel Chemical, Nitro, West Virginia; (C) P.C.B. Treatment, Inc., Kansas
City, Kansas and Kansas City, Missouri; (D) an unspecified local municipal
landfill, Winona, Minnesota; (E) Xxxxxxxxxxxx Xxxxxxxx, Xxxx Xxxx,
Xxxxxxxxxx; (F) Xxxxx X. Xxxxxxxx Landfill (formerly known as Bee
Canyon Landfill) near Irvine, Orange County, California; (G) Olinda/Olinda
Alpha Landfill, Brea, Orange County, California; (H) Xxxxxxxx Canyon
Landfill, Orange County, California and (I) any property owned by or
operated by Fiberite (whether as of the Closing Date or in the future) and
any property formerly owned or operated by Fiberite;
(iv) all liabilities and obligations with respect to the
Fiberite, Inc. Pension Plan, Fiberite, Inc. Service Related Pension Plan,
Fiberite, Inc. 401(k) Plan I and Fiberite, Inc. 401(k) Plan II;
(v) all obligations remaining for the payment of the
purchase price for the
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Ligustica business and for the assets acquired in connection therewith;
(vi) severance for employees who participate in the ICI
Composites Severance Plan (or, if applicable, its successor plan, the
Fiberite, Inc. Severance Plan) other than as provided in the Transitional
Services Agreement (as defined herein);
(vii) all collective bargaining agreements including,
without limitation, the Agreement between Fiberite and General Truck
Drivers, Office, Food and Warehouse Union, Teamsters Local 952; the
Agreement Between ICI Fiberite, A Business Unit of ICI Composites, Inc. and
General Drivers, Helpers, Warehousemen, and Inside Employees Local Union No.
160 affiliated with the International Brotherhood of Teamsters, effective
January 1, 1993 to December 31, 1997; and Agreement Between ICI Fiberite, A
Business Unit of ICI Composites, Inc. and United Steelworkers of America,
AFL-CIO, Local No. 13421, effective March 28, 1993 to March 29, 1998;
(viii) the settlement agreement between Fiberite and Xxxx
Xxxxxxx;
(ix) all outstanding indebtedness for borrowed money of
Fiberite or the German Subsidiary (together with all interest accrued
thereon);
(x) all Expenses (as defined in the Stock Purchase
Agreement);
(xi) the 11.3% Zero Coupon Subordinated Notes of Fiberite
Holdings due in 2002 and 2003;
(xii) all obligations and liabilities of Stamford, Fiberite
Holdings (or any successor) or Fiberite which may arise in connection with
the transactions contemplated by the Stock Purchase Agreement, the proposed
sale of Fiberite Holdings or Fiberite, or this
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Agreement or the Cytec Asset Purchase Agreement to indemnify, defend and
hold harmless the present and former officers, directors, employees and
agents of Fiberite Holdings, Fiberite and the Selling Stockholders;
(xiii) all obligations and liabilities of Stamford, Fiberite
Holdings (or any successor) or Fiberite arising in connection with the
employment agreements set forth on Schedule 1.1(e)(xiii), including,
without limitation, obligations and liabilities relating to the payment
of "excess parachute payments" within the meaning of Section 280G of the
Code;
(xiv) all accounts payable of Fiberite; and
(xv) all obligations and liabilities of Stamford,
Fiberite Holdings or Fiberite arising under this Agreement, the Cytec
Asset Purchase Agreement or the Stock Purchase Agreement.
(f) Buyer's assumption of the Assumed Liabilities hereunder is
an indemnity and accordingly, upon any payment by Buyer in respect thereof
Buyer shall have the right by way of subrogation to pursue any and all claims
that Fiberite Holdings or Fiberite may assert against any third party for
indemnification or insurance in respect thereof, and Buyer shall be entitled
to pursue any such claim, in the name and on behalf of Stamford, Fiberite
Holdings or Fiberite, as the case may be, and to retain any recovery in
respect thereof; provided that nothing in this sentence shall be deemed to
impair Buyer's obligations pursuant to Section 6.3. To the extent, if any,
that Fiberite Holdings or Fiberite has a claim against a third party in
respect of an Assumed Liability, then, notwithstanding payment by Buyer in
respect of such Assumed Liability, (i) Buyer's liability shall be secondary
to the primary obligation of said third party and, accordingly, (ii) Buyer
shall be entitled to reimbursement from Fiberite Holdings or Fiberite, as the
case may be, to the extent that such indemnitee recovers from the third
party, in respect of the Assumed Liability, any amount in excess of its costs
and expenses; PROVIDED that nothing in this sentence shall impair
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Buyer's obligations pursuant to Section 6.3.
Section I.2 CONSIDERATION. Buyer shall pay the following consideration
(irrespective of whether Buyer acquires any of the Acquired Assets or
Acquired Businesses pursuant to this Agreement or is required to engage in an
Alternative Transaction as contemplated in Section 4.18) for the Acquired
Assets, Acquired Business and the License Agreement substantially in the form
attached hereto as Exhibit C (the "License Agreement") which shall consist of:
(a)(i) $29,000,000.00 for the Acquired Assets and the Acquired
Business and (ii) $8,000,000.00 in connection with the license granted to
Buyer under the License Agreement (the "Purchase Price"), payable by wire
transfer of immediately available funds to such bank account as shall be
designated by Fiberite at least two business days prior to the applicable
payment date provided below against delivery of a receipt duly executed by
Fiberite acknowledging receipt of the same; provided that Fiberite hereby
designates that the portions of the Purchase Price represented by the Deposit
and the Remainder be paid on the applicable payment dates directly to the
creditors in respect of the outstanding principal of the Permitted Debt. The
Purchase Price shall be paid in two installments as follows:
(i) $18,500,000 (the "Deposit") shall be paid on the
first business day after the closing of the Stock Purchase Agreement; and
(ii) $18,500,000 (the "Remainder") shall be paid at Closing,
provided that if the Regulatory Approvals shall not have been obtained within
60 days after the closing of the Stock Purchase Agreement then the Remainder
shall be paid on the first business day following expiration of such 60-day
period.
(b) an undertaking substantially in the form set forth as
Exhibit D attached hereto (the "Undertaking"), whereby Buyer will assume and
agree to pay and discharge the Assumed Liabilities as provided in the
Undertaking.
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(c) Notwithstanding anything in this Agreement to the
contrary, Buyer agrees that the obligation of Buyer to pay the Purchase Price
and deliver the Undertaking as provided in this Section 1.2 is absolute and
is in no way contingent on the occurrence or nonoccurrence of any event,
including, without limitation, the receipt of any necessary consents or
approvals of any United States or any other governmental authority that are
required for the consummation of the transaction contemplated by this
Agreement, the transfer of any of the Acquired Assets by Fiberite to Buyer,
the breach of any representation or warranty by any Party, the failure to
perform or comply with any agreement or covenant by any Party or the
termination of this Agreement (other than pursuant to Article V of this
Agreement).
Section I.3 CLOSING. The Closing of the transactions contemplated
by this Agreement shall take place on the date which is the earlier of (i)
the closing of the Cytec Asset Purchase Agreement and (ii) 60 days after the
closing of the Stock Purchase Agreement; provided that, if the Regulatory
Approvals have not been received as of such date, the Closing of the
transactions contemplated by this Agreement shall take place on the date that
is five business days after the date such Regulatory Approvals have been
received, at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP 919
Third Avenue, New York, New York, or on such other date and at such other
time or place as the Parties may agree. The date of the Closing is sometimes
referred to herein as the "Closing Date."
Section 1.4 DELIVERIES BY FIBERITE. At the Closing, Fiberite will
deliver or cause to be delivered to Buyer (unless delivered previously) the
following:
(a) a duly executed Xxxx of Sale and Assignment;
(b) the books and records of Fiberite that relate exclusively
to the Acquired Business or the Assumed Liabilities;
(c) copies of the books and records of Fiberite that relate
to, but do not relate exclusively to, the Acquired Business or the Assumed
Liabilities; and
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(d) all other documents, instruments and writings (including,
if necessary, the Other Instruments) required to be delivered by Stamford,
Fiberite Holdings and Fiberite at or prior to the Closing pursuant to this
Agreement or otherwise required in connection herewith.
Section I.5 DELIVERIES BY BUYER. At the Closing, Buyer will deliver
or cause to be delivered to Fiberite (unless previously delivered) the
following:
(a) the Remainder referred to in Section 1.2(a) hereof;
(b) the duly executed Undertaking; and
(c) all other documents, instruments or writings required to
be delivered by Buyer at or prior to the Closing pursuant to this Agreement
or otherwise required in connection herewith.
ARTICLE II-A
REPRESENTATIONS AND WARRANTIES OF
STAMFORD
Stamford represents and warrants to Buyer as follows:
Section 2A.1 ORGANIZATION. Stamford is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. True and complete copies of the certificate
of incorporation and by-laws of Stamford, as they are currently in effect and
as they will be in effect at Closing, have been made available to Buyer.
Section 2A.2 AUTHORITY. Stamford has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized and approved by Stamford. No other proceedings on the
part of Stamford are necessary to authorize this Agreement or the
consummation of the transactions contemplated hereby. This Agreement has
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been duly and validly executed and delivered by Stamford, and, assuming this
Agreement constitutes a legal, valid and binding agreement of Buyer,
constitutes a legal, valid and binding agreement of Stamford, enforceable
against Stamford in accordance with its terms, except that enforcement
thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought.
Section 2A.3 NO VIOLATIONS.
(a) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby to be performed by
Stamford nor compliance by Stamford with any of the provisions hereof will
(i) violate any provision of Stamford's certificate of incorporation or
by-laws, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default, or give rise to any
right of termination, cancellation or acceleration or any right that becomes
effective upon the occurrence of a merger, consolidation, sale of assets or
change in control, under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, other instrument of indebtedness for money
borrowed, license, franchise, permit or agreement to which Stamford is a
party, or by which Stamford or any of its properties is bound immediately
prior to the closing of the Stock Purchase Agreement or (iii) violate any
statute, rule, regulation, order or decree of any public body or authority by
which Stamford or any of its properties is bound immediately prior to the
closing of the Stock Purchase Agreement, excluding from the foregoing clauses
(ii) and (iii) violations, breaches, defaults or rights that, either
individually or in the aggregate, would not have a Material Adverse Effect or
materially impair its ability to consummate the transactions contemplated
hereby or for which it has received, or prior to the Closing shall have
received, appropriate consents or waivers.
Section 2A.4 NO UNDISCLOSED ARRANGEMENTS.
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As of the date hereof, there are no existing or contemplated
agreements or arrangements relating to the Acquired Business between or among
Stamford, Fiberite or Cytec Industries Inc., a Delaware corporation
("Cytec"), or any of their respective affiliates, which have not been
disclosed to Buyer.
Section 2A.5 CERTAIN EMPLOYEES.
Stamford has not requested the transfer of, nor has it caused
Fiberite to transfer, any employees of Fiberite who spend a majority of their
time employed in the Satellite Business from the Satellite Business, and to
Stamford's knowledge, no such transfer has occurred.
ARTICLE II-B
REPRESENTATIONS AND WARRANTIES OF
FIBERITE
Fiberite (as of the Effective Date) represents and warrants to Buyer
as follows:
Section 2B.1 ORGANIZATION. Fiberite is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and Fiberite has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted. True and complete copies of the certificate
of incorporation and by-laws of Fiberite, as they are currently in effect and
as they will be in effect at Closing, have been made available to Buyer.
Section 2B.2 AUTHORITY. Fiberite has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized and approved by Fiberite. No other proceedings on the
part of Fiberite are necessary to authorize this Agreement or the
consummation of the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Fiberite, and, assuming this
Agreement constitutes a legal,
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valid and binding agreement of Buyer, constitutes a legal, valid and binding
agreement of Fiberite enforceable against Fiberite in accordance with its
terms, except that enforcement thereof may be subject to (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought.
Section 2B.3 NO UNDISCLOSED ARRANGEMENTS.
As of the date hereof, there are no existing or contemplated
agreements or arrangements relating to the Acquired Business between or among
Stamford, Fiberite or Cytec or any of their respective affiliates, which have
not been disclosed to Buyer.
Section 2B.4 CERTAIN EMPLOYEES.
Fiberite has not transferred any employees of Fiberite at the
request of Stamford who spend a majority of their time employed in the
Satellite Business from the Satellite Business.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Stamford and Fiberite as follows:
Section III.1 ORGANIZATION. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted.
Section III.2 AUTHORITY. Buyer has full corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized and approved by Buyer, and no other proceedings on the
part of Buyer are
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necessary to authorize this Agreement or the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Buyer and, assuming this Agreement constitutes a legal, valid
and binding agreement of the other parties hereto, constitutes a legal,
valid, and binding agreement of Buyer, enforceable against Buyer in
accordance with its terms, except that enforcement thereof may be subject to
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws nor or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought.
Section III.3 NO VIOLATIONS.
(a) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby nor compliance by
Buyer with any of the provisions hereof will (i) violate any provision of the
certificate of incorporation or by-laws of Buyer, (ii) result in a violation
or breach of, or constitute (with or without due notice or lapse of time or
both) a default, or give rise to any right of termination, cancellation or
acceleration or any right that becomes effective upon the occurrence of a
merger, consolidation, sale of assets or change in control, under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, other
instrument of indebtedness for money borrowed, license, franchise, permit or
agreement to which Buyer is a party, or by which any of their respective
properties is bound, or (iii) violate any statute, rule, regulation, order or
decree of any public body or authority by which Buyer or any of its
properties is bound, excluding from the foregoing clauses (ii) and (iii),
violations, breaches, defaults or rights that, either individually or in the
aggregate, would not materially impair Buyer's ability to consummate the
transactions contemplated hereby or for which Buyer has received or, prior to
the Closing, shall have received appropriate consents or waivers.
13
ARTICLE IV
COVENANTS
Section IV.1 CONDUCT OF BUSINESS. (a) During the period from the date
of the closing of the Stock Purchase Agreement to the Closing, Stamford,
Fiberite and Fiberite Holdings shall instruct management of Fiberite (but
shall not be liable for management's acts or omissions) to (i) operate the
Acquired Business only in the ordinary course of business consistent with
past practice, (ii) use their reasonable efforts to preserve intact the
Acquired Assets (except for wear and tear in the ordinary course of business)
and the Acquired Business and keep available the services of the employees in
the Acquired Business, (iii) preserve and maintain the Acquired Assets and
use their reasonable efforts to preserve and maintain satisfactory
relationships with suppliers, distributors and customers in connection with
the Acquired Business, and (iv) take all commercially reasonable steps to
protect the Intellectual Property rights of the Acquired Business and the
Acquired Intellectual Property and the rights of Buyer under the License
Agreement and prevent any of it from falling into the public domain. Neither
Stamford nor Fiberite Holdings shall take any actions to prevent or otherwise
interfere with any of the foregoing.
(b) during the period from the date of the closing of the
Stock Purchase Agreement to the Closing Stamford and Fiberite Holdings shall
instruct management of Fiberite not to cause (but shall not be liable for
management's acts or omissions), and Stamford and Fiberite Holdings shall not
cause, Fiberite to take any of the following actions to the extent such
actions relate to or affect the Acquired Business, Acquired Assets or Assumed
Liabilities.
(i) declare, set aside, or pay any dividend or make
any other distribution to its stockholders whether or not upon or in
respect of any shares of its capital stock;
(ii) purchase, redeem or otherwise acquire any shares
of (or options, war-
14
rants or rights relating to) its capital stock or other securities or
issue any capital stock or any option, warrant or right relating thereto
or any securities convertible into or exchangeable for any shares of
capital stock;
(iii) incur any indebtedness for borrowed money or
guarantee any such indebtedness of any other person (other than short-term
indebtedness incurred in the ordinary course of business consistent with
past practice), issue or sell any debt securities or warrants or other
rights to acquire any debt securities or guarantee any debt securities
of any other person;
(iv) make any payments in respect of any indebtedness
for borrowed money other than scheduled interest payments under the
Permitted Debt;
(v) make or incur any capital expenditure (other than
capital expenditures budgeted for as of the closing of the Stock
Purchase Agreement);
(vi) make any loans, advances or capital contributions
to, or investments in, any other person (other than loans or advances
to employees for normal business expenses in the ordinary course of
business consistent with past practice);
(vii) pay, loan or advance any amount to, or enter
into any agreement or arrangement with, Fiberite Holdings or Stamford
or any Affiliate of Stamford;
(viii) cancel any indebtedness or waive any claims or
rights of substantial value;
(ix) pay, discharge, satisfy or settle any claims,
liabilities or obligations, other than amounts under $25,000 in the
ordinary course of business consistent with past practice;
15
(x) make any Tax election or settle or compromise any
income Tax liability;
(xi) employ outside counsel in respect of or make
determinations as to the handling of any pending or threatened
litigation (other than litigation arising in the ordinary course of
business) involving amounts in excess of $25,000 or criminal liability
without consulting in good faith with Buyer in respect thereof
(including the identity of any such counsel);
(xii) cancel or permit to lapse any policies of
insurance;
(xiii) (A) increase in any manner the compensation or
fringe benefits of any of its directors, officers or other employees,
including, without limitation, Affected Employees; (B) pay, modify or
amend any pension, retirement allowance or other employee benefit not
required, or enter into or agree to enter into any agreement or
arrangement with such director, officer or employee, whether past or
present, relating to any such pension, retirement allowance or other
employee benefit, except as required by law or under agreements, plans
or arrangements existing on the date of the closing of the Stock
Purchase Agreement; (C) amend (except as required by applicable law,
with notice to Buyer) or terminate any of the Plans as they apply to
any of the Affected Employees or increase the amount or accelerate the
payment or vesting of any benefits payable thereunder; (D) grant any
severance or termination pay to, or enter into any employment,
consulting or severance agreement with any of its directors, officers
or other employees, including without limitation, Affected Employees;
(E) become obligated under any new pension plan, welfare plan,
multiemployer plan, employee benefit plan, benefit arrangement or
similar plan or arrangement that was not in existence on the date of
the closing of the Stock Purchase Agreement or amend any of such plans
or
16
arrangements in existence on such date; (F) announce or implement
any layoffs; or (G) terminate the employment of or reassign or change
the duties of any of its officers or make any change in its management
or the composition of its board of directors;
(xiv) authorize, recommend, propose or announce an
intention to authorize, recommend or propose, or enter into any
agreement in principle or an agreement with respect to or consummate,
(A) any plan of liquidation or dissolution; (B) any acquisition of
assets (other than inventory; (C) any acquisition of an interest in
any business or business organization; (D) any merger or consolidation
with any person; or (E) any sale, transfer, lease, license, pledge,
mortgage, the subjection to any Lien other than Permitted Liens, or
other disposition or encumbrance of, any of the Acquired Assets (other
than sales of inventory in the ordinary course of business consistent
with past practice);
(xv) grant any license or sublicense or any rights
under or with respect to any Intellectual Property rights of the
Acquired Businesses or any Acquired Intellectual Property or otherwise
provide any of the foregoing or any other confidential or proprietary
information with respect to the Acquired Businesses or the Acquired
Assets to any person or otherwise take or fail to take any action that
could adversely affect Buyer's rights under the License Agreement;
(xvi) enter into, amend, modify or terminate any
material contract, or take any action or fail to take any action that
to its knowledge, with or without notice or lapse of time, would
constitute a default under any such contract, or waive, release or
assign any material rights or claims under any such contract, or enter
into any classified Government Contract;
(xvii) change any of the ac-
17
counting principles or practices applied with respect to the Acquired
Assets or the Acquired Businesses;
(xviii) take any action which could be reasonably
expected to prevent or materially delay the consummation of the
transactions contemplated by this Agreement or to materially impair
the value of the Acquired Assets or the Acquired Businesses or which
would make any representation or warranty of Fiberite contained in
this Agreement untrue or incorrect as of the date when made or as of
the Closing Date or which would reasonably be expected to prevent or
materially delay the satisfaction of any condition to Closing set
forth in Article V hereof; or
(xix) agree to do any of the foregoing.
(c) Notwithstanding anything to the contrary contained in
Section 4.1(b), Stamford, Fiberite Holdings and Fiberite shall be permitted
to, and shall be permitted to cause each of their respective subsidiaries to
take such actions necessary to enable it to, (A) dividend or otherwise
distribute the $200,000 in cash in Fiberite's bank accounts on the closing of
the Stock Purchase Agreement (or the amount actually in such accounts, if
less), (B) incur and guarantee the Permitted Debt (but not to make any
payments in respect thereof other than scheduled interest payments), (C)
consummate the transactions contemplated by the Cytec Asset Purchase
Agreement and perform its obligations thereunder and dividend or otherwise
distribute the amounts received pursuant to Section 1.2 thereof, (D) perform
its obligations under the Stock Purchase Agreement and (E) consummate the
Permitted Merger. In no event shall Stamford, Fiberite Holdings or Fiberite
or any of their respective subsidiaries be deemed to have breached this
Section 4.1 if such breach arises from the performance by or compliance with
any other provision contained in this Agreement.
(d) During the period from the date of the closing of the
Stock Purchase Agreement to the Closing, Stamford shall maintain Fiberite
Holdings as a
18
wholly owned subsidiary of Stamford and Fiberite as a wholly owned subsidiary
of Fiberite Holdings provided, that Stamford may consummate the Permitted
Merger.
(e) During the period from the date of this Agreement to the
Closing, Stamford shall not request, cause or instruct the management of
Fiberite to permit any transfer of any employee of Fiberite who spends a
majority of his/her time employed in the Satellite Business from the
Satellite Business.
Section .1 ACCESS TO INFORMATION.
(a) From the date of this Agreement until the closing of the
Stock Purchase Agreement, Stamford shall authorize and provide Buyer and
Buyer's authorized representatives (including counsel, financial advisers,
environmental and other consultants, accountants and auditors) full access to
the information regarding the Acquired Assets, the Acquired Business and the
Assumed Liabilities pursuant to Section 5.02 of the Stock Purchase Agreement
or otherwise and agree to exercise its rights pursuant to Section 5.02 to
obtain promptly such information as Buyer may reasonably request (or to
designate Buyer and Buyer's representatives as its authorized representatives
to obtain such information), subject to the limitations set forth therein.
(b) From the date of the closing of the Stock Purchase
Agreement until the Closing Date, Stamford and Fiberite shall authorize and
provide Buyer and Buyer's authorized representatives (including counsel,
financial advisors, environmental and other consultants, accountants and
auditors) full access to all properties, books, contracts, commitments,
personnel and records of Fiberite and Fiberite Holdings to the extent related
to the Acquired Assets, Acquired Business or the Assumed Liabilities, and
shall furnish or cause to be furnished to Buyer all other information
concerning the Acquired Businesses, the Acquired Assets or Assumed
Liabilities as Buyer shall request.
Section .2 COMMERCIALLY REASONABLE EFFORTS; OTHER ACTIONS.
Subject to the terms and conditions herein provided and applicable law,
Buyer, on the one hand, and Stamford and Fiberite, on the other, shall use
their commercially reasonable efforts promptly to take,
19
or cause to be taken, all other actions and do, or cause to be done, all
other things necessary, proper, appropriate or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement, including, without limitation, (i) the filing
of Notification and Report Forms under the HSR Act with the Federal Trade
Commission (the "FTC") and the Antitrust Division of the Department of
Justice (the "Antitrust Division") and using their commercially reasonable
efforts to respond as promptly as practicable to all inquiries received from
the FTC or the Antitrust Division for additional information or documentation
and (ii) the obtaining of all necessary consents, approvals or waivers under
applicable law or its material contracts; PROVIDED, HOWEVER, the agreement of
the parties contained herein shall not require Buyer to take any action that
would (i) require divestiture by Buyer of any of its existing business
operations or other than as provided herein the Acquired Assets or the
Acquired Business, or (ii) impose a burden on, or restriction upon, Buyer's
existing business operations, the Acquired Business or the Acquired Assets.
Nothing in this Section 4.3 shall be deemed to limit the obligations of Buyer
to pay the Purchase Price in accordance with Section 1.2 or to take the
actions required by Section 4.17.
Section .3 PUBLIC ANNOUNCEMENTS. Except as may be required by
applicable law, rule, regulation or legal process, so long as this Agreement
is in effect, none of Stamford, Fiberite, Buyer or any of their respective
subsidiaries or Affiliates shall issue or cause the publication of any press
release or other public announcement with respect to the transactions
contemplated by this Agreement without first consulting the other parties
hereto.
Section .4 NOTIFICATION OF CERTAIN MATTERS. Stamford shall
provide to Buyer within one business day of receipt thereof a copy of any
notification received by Stamford pursuant to Section 5.05 of the Stock
Purchase Agreement. Stamford shall provide to Buyer such notification in the
manner described in Section 7.3 hereof.
Section .5 EXPENSES. Except as provided herein, Buyer, on the one
hand, and Stamford, Fiberite Holdings and Fiberite, on the other hand, shall
bear their respective expenses incurred in connection with
20
this Agreement and the transactions contemplated hereby, and all fees and
expenses of their respective investment bankers, finders, brokers, agents,
representatives, counsel and accountants.
Section .6 INSURANCE. Subsequent to the Closing, neither
Fiberite Holdings (or any successor) nor Fiberite shall surrender their
respective rights under any policies of insurance which were in effect at the
time immediately prior to the Closing Date in respect of risks and losses
arising out of events or occurrences occurring prior to the Closing Date in
the course or as a result of the conduct of the Acquired Business, with
respect to the Acquired Assets or Assumed Liabilities ("Prior Occurrences");
PROVIDED, HOWEVER, that nothing herein shall be deemed to require Fiberite
Holdings (or any successor) or Fiberite to maintain any insurance with
respect to events or occurrences occurring after the Closing Date. Fiberite
Holdings (or any successor) and Fiberite shall cause Buyer to be designated
as loss payee under such policies with respect to the Prior Occurrences, and
shall assign to Buyer, or designate Buyer as their agent with respect to, all
claims and other rights to enforce or assure insurance coverage under such
policies with respect to Prior Occurrences; PROVIDED further, that in the
event Fiberite Holdings (or any successor) or Fiberite is unable to designate
Buyer as loss payee under such policies, Fiberite Holdings (or any successor)
and Fiberite shall cooperate with Buyer and use their commercially reasonable
efforts to provide Buyer the equivalent benefits of such policies.
21
Section .7 INTELLECTUAL PROPERTY; NAME. From and after the
Closing Date and consistent with the terms hereof, (i) Buyer shall possess,
to the exclusion of Stamford, Fiberite Holdings and Fiberite and their
respective subsidiaries and Affiliates, all rights to the use of the Acquired
Intellectual Property and (ii) Buyer shall not, pursuant to this Agreement,
possess any rights to the use of the Excluded Intellectual Property (except
as described on Schedule 1.1(a)(ii), pursuant to the License Agreement or
pursuant to any other agreement between the Parties with respect thereto),
including the name "Fiberite." Buyer may continue to use the Fiberite name
and any Trademark not exclusively related to the Acquired Business in the
ordinary course of the Acquired Business for the period terminating on the
six month anniversary of the Closing. For avoidance of doubt, none of
Stamford, Fiberite Holdings and Fiberite and their respective subsidiaries
and Affiliates shall retain any copies of any of the Acquired Intellectual
Property and all such copies shall be delivered to the Buyer on the Closing
Date.
Section .8 BOOKS AND RECORDS. Each of the Parties agree that all
books and records of Fiberite Holdings and Fiberite relating to the Acquired
Business or Assumed Liabilities, wherever located, which a Party acquires
hereunder or under the Stock Purchase Agreement (including, but not limited
to, correspondence, memoranda, books of account, personnel and payroll
records and the like) (the "Business Records") shall be preserved by such
party for a period of at least seven (7) years following the Closing Date.
Following such seven (7) year period, neither Stamford, Fiberite Holdings and
Fiberite (or any successor thereof), on the one hand, nor Buyer, on the other
hand, will dispose of any such books and records without first offering such
books and records to the other Party. After the Closing Date, where there is
some legitimate business purpose, the Party in possession of any Business
Records shall provide the other Party and its authorized representatives with
access, upon prior reasonable notice specifying the need therefor, during
regular business hours, to the Business Records, and the other Party or its
representatives shall have the right to examine and make copies of such
Business Records; provided that the foregoing right shall not be exercisable
in such a manner as to unreasonably inter-
22
fere with the normal operations of such Party.
Section .9 ALLOCATION OF THE PURCHASE PRICE. As soon as
practicable after the date hereof, but in no event less than 10 days prior to
the Closing Date, Buyer and Stamford shall mutually agree on an allocation
(the "Allocation Statement") of the Purchase Price payable by Buyer pursuant
to Section 1.2 hereof plus the amount of any Assumed Liabilities
(collectively, the "Allocable Amount") for federal income tax purposes in
accordance with their fair market values and with the requirements of Section
1060 of the Code. Each of Buyer and Fiberite shall (i) report for all Tax
purposes the purchase of the Acquired Assets in a manner consistent with the
Allocation Statement and in a manner consistent with all applicable rules and
regulations; (ii) timely file a Form 8594 in accordance with the requirements
of Section 1060 of the Code and this Section 4.10; (iii) not assert, in
connection with any Return, Tax audit or similar proceedings, any allocation
of the Allocable Amount that differs from that agreed to herein; and (iv)
notify the other in the event any taxing authority is taking or proposing to
take a position inconsistent with such allocation. Each of Buyer and
Stamford shall deliver to the other a copy of its Form 8594 at least 10 days
prior to the filing thereof.
Section .10 ASSIGNMENT OF CONTRACTS; NON-ASSIGNABILITY. From and
after the Closing Date Fiberite shall use commercially reasonable efforts to
obtain all necessary consents, approvals or waivers required for the transfer
to Buyer of the agreements, contracts and commitments, and any other property
interest or right that is included in the Acquired Assets. Notwithstanding
the foregoing, to the extent that any contract, agreement or commitment, or
any other property interest or right included in the Acquired Assets, is not
capable of being assigned or transferred without the consent or waiver of the
other party thereto, or any third person (including a government or
governmental unit), or if such assignment or transfer or attempted assignment
or transfer would constitute a breach thereof or a violation of any law,
decree, order, regulation or other governmental edict or is otherwise not
practicable, this Agreement shall not constitute an assignment, transfer or
sublease thereof, or an attempted assignment, transfer or sublease thereof
prior to the time that the appropriate consent or waiver
23
is obtained. To the extent that any contract, agreement or commitment or any
other property interest or right included in the Acquired Assets is not
assigned hereby (the "Non-Assigned Contracts"), then Fiberite shall, and
Stamford shall cause Fiberite to, use commercially reasonable efforts to
provide to Buyer the economic benefit of the Non-Assigned Contracts. The
parties acknowledge that to the extent the rights under an agreement are
validly assigned or to the extent that Buyer receives any of the economic
benefit of any such agreement, the Buyer will assume the obligations under
such agreement, PROVIDED THAT, Buyer will use commercially reasonable
efforts, including where appropriate partial performance, to assist Stamford
and Fiberite to provide to Buyer the economic benefit of any agreement.
Furthermore, the Parties hereto acknowledge and agree that to the extent the
transactions contemplated by this Agreement have closed and there exists any
Non-Assigned Contracts, Buyer does not waive any rights to receive any
assignment of or to receive the economic benefit from the Non-Assigned
Contracts. In the event a contract relating to raw materials is used by both
the Acquired Business and the Excluded Businesses as of the Closing, the
Buyer and Fiberite agree for a commercially reasonable period to share or
otherwise allocate the benefits and obligations under such contract in the
proportion used by the respective businesses over the recent past.
Section .11 TAX COOPERATION. The Parties and their respective
affiliates shall cooperate in the preparation of all Returns relating in
whole or in part to taxable periods ending on or before or including the
Closing Date that are required to be filed after such date. Such cooperation
shall include, but not be limited to, furnishing prior years' Returns or
return preparation packages illustrating previous reporting practices or
containing historical information relevant to the preparation of such
Returns, providing reasonable access to employees with knowledge of such
Returns during regular business hours and furnishing such other information
within such party's possession requested by the party filing such Returns as
is relevant to their preparation. Additionally, a Party filing any such
Returns (the "Filing Party") shall mail a draft copy of such Returns to the
other party (the "Non-Filing Party"), not less than 30 days prior to the
expected filing date and shall provide the Non-Filing Party and its
representatives,
24
advisors and agents with such materials and such access to the books and
records of the Filing Party related to such Return so that the Non-Filing
Party may review and comment on such Return prior to the filing thereof. The
Filing Party and the Non-Filing Party shall mutually agree on the final
preparation content and filing of any Return referred to in this Section 4.12.
Section .12 NO DISSOLUTION OF FIBERITE. Stamford agrees not to
cause the dissolution of Fiberite or Fiberite Holdings or otherwise cause the
corporate existence of Fiberite or Fiberite Holdings to cease, and Fiberite
and Fiberite Holdings agree not to dissolve or otherwise cause its corporate
existence to cease, in each case, if such action would adversely affect
Buyer, including, without limitation, in respect of any indemnification
rights provided to Buyer hereunder or assigned to Cytec or any of its
affiliates under the Cytec Asset Purchase Agreement, provided that under no
circumstances shall Fiberite or Fiberite Holdings be dissolved prior to the
second anniversary of the Closing Date. Notwithstanding the foregoing,
Stamford, Fiberite Holdings and Fiberite may consummate the Permitted Merger.
Section .13 CERTAIN ARRANGEMENTS. Fiberite shall execute and
deliver at the Closing of the Stock Purchase Agreement (1) the License
Agreement, and (2) a Transitional Services Agreement addressing the matters
described on Exhibit E, and (3) the Tri-party Agreement.
Section .14 USE OF TECHNOLOGY. Fiberite and any successor to
Fiberite agrees not to use any of the Acquired Intellectual Property.
Section .15 CLOSING OF STOCK PURCHASE AGREEMENT. Buyer agrees to
notify Stamford in writing prior to the closing of the Stock Purchase
Agreement whether the conditions contained in Article VI and VII of the Stock
Purchase Agreement have been satisfied and complied with to the satisfaction
of Buyer. In the event Buyer notifies Stamford that the conditions in Article
VI and VII of the Stock Purchase Agreement have been satisfied to Buyer's
satisfaction, then, upon closing of the Stock Purchase Agreement, Stamford
shall cause Fiberite Holdings and Fiberite to execute and deliver this
Agreement.
Section .16 ALTERNATIVE TRANSACTION. If the
25
Regulatory Approvals have not been obtained or have been denied and Buyer
shall determine to cease seeking such approvals or any writ, order, decree or
injunction of a court of competent jurisdiction, governmental entity or
regulatory body shall be in effect against any of the Parties or their
respective subsidiaries which prohibits or restricts the consummation of the
transactions contemplated by this Agreement, then (i) Buyer shall be
permitted to assign its rights under this Agreement to any person or persons
selected by Buyer and (ii) Stamford and Fiberite shall take all actions (and
execute all documents and agreements) reasonably requested by Buyer (at
Buyer's expense) and shall otherwise cooperate with Buyer in the disposition
of all or any part of the Acquired Assets, Assumed Liabilities and the
License Agreement to any person or persons selected by Buyer (an "Alternative
Transaction"), in each case for the account and benefit of Buyer and as
determined by Buyer in its sole discretion. The obligations of Stamford and
Fiberite pursuant to this Section 4.17 shall be subject to the prior payment
by Buyer of the Purchase Price and to Buyer's agreement to indemnify and hold
harmless Stamford, Fiberite and each of their respective Affiliates for any
losses or liability that arises or is incurred by any such person as a result
of or in connection with the consummation of an Alternative Transaction.
Buyer shall be required to consummate an Alternative Transaction no later
than the 270th Day after the closing of the Stock Purchase Agreement if the
Closing shall not have theretofore occurred.
Section .17 CYTEC ASSET PURCHASE AGREEMENT. Buyer acknowledges
that it has reviewed the terms and conditions of the Cytec Asset Purchase
Agreement. As a result, Buyer agrees that it shall not hold Stamford,
Fiberite Holdings or Fiberite or any of their Affiliates liable or pursue any
action against any such person or entity for any breach, violation, or
failure to comply with any of the terms of this Agreement which result from
the compliance or performance by Stamford, Fiberite Holdings or Fiberite or
any of their subsidiaries with the terms and conditions of the Cytec Asset
Purchase Agreement. Stamford shall not amend or modify any provision of the
Cytec Asset Purchase Agreement without prior written consent of Buyer.
26
ARTICLE I
TERMINATION AND ABANDONMENT
Section I.1 TERMINATION. This Agreement may be terminated at any
time prior to the closing of the Stock Purchase Agreement:
(a) by mutual written consent of Stamford and Buyer;
(b) by Stamford or Buyer if, the Stock Purchase Agreement
shall have terminated; or
(c) by Buyer or Stamford, if Buyer notifies Stamford that
pursuant to Section 4.16, the conditions in the Stock Purchase Agreement have
not been satisfied and Buyer notifies Stamford of its intention not to close
the transactions contemplated by this Agreement (Buyer agrees to notify
Stamford of its intention immediately after Cytec informs Buyer as to whether
the conditions in the Stock Purchase Agreement have been satisfied).
Section I.2 PROCEDURE FOR TERMINATION. In the event of
termination and abandonment of the transactions contemplated by this
Agreement by Stamford or Buyer pursuant to this Article V, written notice
thereof shall forthwith be given to the other.
Section I.3 EFFECT OF TERMINATION AND ABANDONMENT. In the event
of proper termination of this Agreement and abandonment of the transactions
contemplated by this Agreement pursuant to this Article V, no Party hereto
(or any of its directors or officers) shall have any liability or further
obligation to any other Party to this Agreement, except that in such event
nothing herein shall relieve any Party from liability for any breach of this
Agreement.
27
ARTICLE II
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section II.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES,
COVENANTS, ETC. Except for the respective covenants and other agreements of
the Parties made in this Article VI and Article VII hereof, the respective
representations, warranties, covenants and other agreements of the Parties
shall not survive the Closing or any termination of this Agreement.
Notwithstanding the foregoing, this Section 6.1 shall not limit any covenant
or agreement of the Parties which contemplates performance after the Closing,
including, without limitation, any such covenants and agreements set forth in
Article IV hereof and in the Undertaking; provided, however, that with
respect to the covenants and agreements of Stamford, Fiberite Holdings,
Fiberite and each of their respective subsidiaries, the Parties hereto agree
that irrespective of whether or not any such covenant or agreement
contemplates performance after the Closing, if such performance cannot be
performed as a result of the transactions contemplated by the Cytec Asset
Purchase Agreement, such covenant or agreement shall be deemed not to have
survived the Closing for purposes of determining whether such covenant or
agreement has been breached or violated by Stamford, Fiberite Holdings,
Fiberite or any of their respective subsidiaries.
28
Section II.2 (a) FIBERITE'S AND STAMFORD'S AGREEMENTS TO
INDEMNIFY. Subject to the terms, conditions and limitations set forth in
Sections 4.19, 6.1, 6.2(b), 6.2(c) and 6.5, from and after the Closing,
Stamford and Fiberite, jointly and severally, shall defend, indemnify and
hold harmless Buyer, its Affiliates and if applicable, their respective
directors, officers, employees, attorneys, representatives and agents, and
each of the heirs, executors, successors and assigns of any of the foregoing
(each a "Buyer Indemnitee") of Buyer from and against any costs or expenses
(including, without limitation, reasonable attorneys' fees, investigation
costs and remediation costs), judgments, fines, losses, actions, claims,
damages and assessments of any nature (collectively, "Losses") imposed on,
sustained, incurred or suffered by or asserted against any Buyer Indemnitee
that arise out of or relate to (i) any breach of or failure to perform any
covenant (each a "Stamford Covenant") to be performed on or after the closing
date of the Stock Purchase Agreement made by or on behalf of Stamford or
Fiberite under this Agreement, the Other Instruments or in any certificate,
exhibit or other instrument contemplated by this Agreement and delivered by
Stamford or Fiberite in connection herewith and (ii) except as otherwise
provided in Section 6.2(b) the Excluded Liabilities.
(b) Notwithstanding anything in this Agreement to the
contrary, to the extent that (i) any Losses are sustained, incurred or
suffered by or asserted against Buyer or any Buyer Indemnitee and (ii) such
Losses arise out of or relate to any Excluded Liabilities which are assumed
by Cytec pursuant to the Cytec Asset Purchase Agreement, the Parties agree
that (A) neither Stamford or Fiberite shall have any liability under this
Agreement or have any obligation pursuant to the terms of this Agreement or
otherwise to defend, indemnify or hold harmless any of Buyer or any Buyer
Indemnitee with respect to any such Losses and (B) no Buyer Indemnitee shall
have any right to indemnification with respect to any such Losses.
(c) Notwithstanding anything in this Agreement to the
contrary, to the extent that any Losses are sustained, incurred or suffered
by or asserted against any Buyer Indemnitee and such Losses arise out of or
relate to any breach of or failure to perform any
29
Stamford Covenant which, as the result of the consummation of the
transactions contemplated by the Cytec Asset Purchase Agreement, cannot be
performed by or on behalf of Stamford or Fiberite, the Parties agree that (i)
neither Stamford or Fiberite shall have any liability under this Agreement or
have any obligation pursuant to the terms of this Agreement to defend,
indemnify or hold harmless any Buyer Indemnitee with respect to any such
Losses and (ii) no Buyer Indemnitee shall have any rights to indemnification
with respect to any such Losses. Moreover, the Parties agree that it shall
not constitute a breach of or a failure by Fiberite or Stamford to perform
any Stamford Covenant if the conduct or action taken or failure to take any
action which would have been the basis for such breach or failure (but for
this sentence) was required to be performed or omitted to be performed in
accordance with the terms of the Cytec Asset Purchase Agreement.
Section .1 BUYER'S AGREEMENT TO INDEMNIFY. Subject to the terms,
conditions and limitations set forth in Sections 6.1 and 6.5, from and after
the Closing, Buyer shall defend, indemnify and hold harmless Stamford and
Fiberite and their respective Affiliates, and if applicable, their respective
directors, officers, attorneys, representatives and agents and each of the
heirs, executors, successors and assigns of any of the foregoing (each a
"Seller Indemnitee") of Stamford, Fiberite Holdings and Fiberite from and
against any Losses imposed on, sustained, incurred or suffered by or asserted
against any Seller Indemnitee that arise out of or are the result of (i) any
breach of or failure to perform any covenant to be preformed on or after the
Closing Date made by or on behalf of Buyer under this Agreement, the Other
Instruments or in any certificate, exhibit or other instrument contemplated
by this Agreement and delivered by Buyer in connection herewith, (ii) Buyer's
pursuit of any claim pursuant to Section 1.1(f) and (iii) the Assumed
Liabilities.
Section .2 INDEMNIFICATION BASED ON NET DAMAGE. In calculating
amounts payable from a party required to indemnify a party under this
Agreement (the "Indemnifying Party") to a party entitled to indemnification
under this Agreement (an "Indemnified Party"), the amount of the indemnified
Losses shall be computed net of payments received by the Indemnified Party
under any
30
insurance policy or contract with respect to such Losses.
Section .3 THIRD PARTY CLAIMS. In the event that a claim for
indemnification ("Claim") involves a claim by a Third Party against the
Indemnified Party, the Indemnifying Party shall notify the Indemnified Party
in writing within ten business days after receipt of written notice from the
Indemnified Party if it agrees to undertake the defense thereof. The written
notice provided to the Indemnifying Party from the Indemnified Party shall be
delivered promptly following the Indemnified Party's obtaining knowledge of
the Claim and shall state the basis of the Claim with reasonable specificity,
including the Section or Sections of this Agreement alleged to have been
breached. If the Indemnifying Party so notifies the Indemnified Party, then
the Indemnifying Party shall control such defense and shall bear all costs of
such defense, PROVIDED, that the Indemnified Party may participate in such
settlement or defense through counsel chosen by it (the fees and expenses of
which shall be borne by the Indemnified Party). Notwithstanding anything in
this Section 6.5 to the contrary, the Indemnifying Party may, with the
consent of the Indemnified Party (which consent shall not be unreasonably
withheld), settle or compromise any action or consent to the entry of any
judgment which includes as a term thereof the delivery by the claimant or
plaintiff to the Indemnified Party of a duly executed written unconditional
release of the Indemnified Party from all liability in respect of such
action, which release shall be reasonably satisfactory in form and substance
to counsel for the Indemnified Party. If the Indemnifying Party does not
notify the Indemnified Party within ten business days after the receipt of
the Indemnified Party's notice of a claim of indemnity hereunder that it
elects to undertake the defense thereof, the Indemnified Party shall have the
right to contest, settle or compromise the claim but shall not thereby waive
any right to indemnity therefor pursuant to this Agreement. Notwithstanding
the foregoing, the Indemnified Party, during the period the Indemnifying
Party is determining whether to elect to assume the defense of a matter
covered by this Section 6.5, may take such reasonable actions as it deems
necessary to preserve any and all rights with respect to the matter, without
such actions being construed as a waiver of the Indemnified Party's rights to
defense and indemnification pursuant to this Agreement. No failure to
provide any
31
notice required by this Section 6.5 shall relieve the Indemnifying Party of
any obligation to indemnify the Indemnified Party hereunder except to the
extent that the Indemnifying Party is actually prejudiced thereby.
ARTICLE I
MISCELLANEOUS
Section I.1 FEES, EXPENSES AND TAXES.
(a) Whether or not the transactions contemplated herein
are consummated pursuant hereto, except as otherwise provided herein, each of
the Parties shall pay all of its respective fees and expenses incurred by, or
in connection with, or in anticipation of, this Agreement and the
consummation of the transactions contemplated hereby and thereby. Each of
the Parties shall indemnify and hold harmless the other parties from and
against any and all claims or liabilities for brokerage commissions and
financial advisory and finders' fees incurred by reason of any action taken
by such Party or otherwise arising out of the transactions contemplated by
this Agreement by any person claiming to have been engaged by such Party.
Notwithstanding Section 4.6, Buyer shall be responsible for the payment of
any fee, sales tax, transfer tax, filing expense or other charge incurred in
connection with the transfer of the Acquired Assets and/or the Acquired
Business (including legal expenses in respect of the preparation of transfer
documents.
(b) Each of Buyer and Fiberite shall provide the other
with such assistance and documents, without charge, as may be reasonably
requested by either of them in connection with the preparation of any Return,
the conduct of any audit or administrative or court proceeding, and any other
Tax related matter that is a subject of this Agreement. Such cooperation and
assistance shall be provided to the requesting Party promptly upon its
request.
(c) Each of Buyer, Fiberite Holdings (or any successor)
and Fiberite shall notify the others in the event that it is taking, or any
taxing authority is taking or proposing to take, a position inconsistent with
32
the treatment of an indemnification payment, as an adjustment to the
Allocable Amount for Tax purposes, including, without limitation, in
connection with all income Tax Returns and all proceedings in connection with
income Taxes.
Section I.2 FURTHER ASSURANCES. From time to time after the
Closing Date, at the request of another Party hereto and at the expense of
the Party so requesting, each of the parties hereto shall execute and deliver
to such requesting Party such documents and take such other action as such
requesting Party may reasonably request in order to consummate more
effectively the transactions contemplated hereby.
Section I.3 NOTICES. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and may be given by any of the following methods: (a)
personal delivery; (b) facsimile transmission; (c) registered or certified
mail, postage prepaid, return receipt requested; or (d) overnight delivery
service. Notices shall be sent to the appropriate Party at its address or
facsimile number given below (or at such other address or facsimile number
for such Party as shall be specified by notice given hereunder):
If to Stamford, to:
Stamford FHI Acquisition Corp.
000 Xxxxxxx Xx.
Xxxxxx, XX 00000
(000) 000-0000
Attention: President
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxx Xxxxx, Esq.
33
If to Fiberite, to:
Fiberite, Inc.
000 Xxxxxxx Xx.
Xxxxxx, XX 00000
(000) 000-0000
Attention: President
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxx Xxxxx, Esq.
If to Buyer, to:
Hexcel Corporation
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxx, Esq.
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Coco, Esq.
All such notices, requests, demands, waivers and communications shall be
deemed received upon (i) actual receipt thereof by the addressee, (ii) actual
delivery thereof to the appropriate address or (iii) in the case of a
facsimile transmission, upon transmission thereof by the sender and issuance
by the transmitting machine of a confirmation slip that the number of pages
constituting the notice have been transmitted without error. In the case of
notices sent by facsimile transmission, the sender shall contemporaneously
mail a copy of the notice to the addressee at the address provided for above.
However, such mailing shall in no way alter the time at which the facsimile
notice is deemed received.
34
Section 1.4 SEVERABILITY. Should any provision of this Agreement
for any reason be declared invalid or unenforceable, such decision shall not
affect the validity or enforceability of any of the other provisions of this
Agreement, which remaining provisions shall remain in full force and effect
and the application of such invalid or unenforceable provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable shall be valid and enforced to the fullest extent permitted by
law.
Section 1.5 BINDING EFFECT; ASSIGNMENT. This Agreement and all of
the provisions hereof shall be binding upon and shall inure to the benefit of
the Parties and their respective successors and permitted assigns. Neither
this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned, directly or indirectly, including, without limitation, by
operation of law, by any Party hereto without the prior written consent of
the other parties hereto. Notwithstanding anything herein to the contrary but
subject to Section 4.13, this Section 7.5 shall not preclude and Buyer's
consent shall not be required for (a) the Permitted Merger and the transfer
of Stamford's rights hereunder caused thereby or (b) the assignment of
Stamford's or Fiberite's rights hereunder to any lender of Permitted Debt as
collateral security for such Permitted Debt and Buyer agrees to execute any
appropriate agreement or instrument that Stamford or any such lender may
reasonably request to effect or evidence such assignment. Notwithstanding
anything to the contrary, Stamford's, Fiberite's and Fiberite Holdings'
consent shall not be required for any assignment by Buyer of its rights
hereunder in connection with an Alternative Transaction.
Section 1.6 BULK SALES LAW. Buyer hereby waives compliance by
Fiberite with the requirements and provisions of any "bulk-transfer" laws of
any jurisdiction that may otherwise be applicable with respect to the
transactions contemplated by this Agreement.
Section 1.7 NO THIRD PARTY BENEFICIARIES. This Agreement is solely
for the benefit of Stamford, Fiberite and their respective successors and
permitted assigns, with respect to the obligations of Buyer under this
Agreement, and for the benefit of Buyer, and its
35
respective successors and permitted assigns, with respect to the obligations
of Stamford and Fiberite, under this Agreement, and this Agreement shall not
be deemed to confer upon or give to any other third party any remedy, claim,
liability, reimbursement, cause of action or other right.
Section 1.8 INTERPRETATION.
(a) The article and Section headings contained in this Agreement
are solely for the purpose of reference, are not part of the agreement of the
parties and shall not in any way affect the meaning or interpretation of this
Agreement.
(b) As used in this Agreement, the term "person" shall mean and
include an individual, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any department or
agency thereof.
(c) As used in this Agreement, the term "Affiliate" shall have
the meaning set forth in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended.
36
Section 1.9. JURISDICTION AND CONSENT TO SERVICE. Without limiting
the jurisdiction or venue of any other court, each of the Parties (i) agree
that any suit, action or proceeding arising out of or relating to this
Agreement may be brought solely in the state or federal courts of New York;
(ii) consent to the exclusive jurisdiction of each such court in any suit,
action or proceeding relating to or arising out of this Agreement; (iii)
waive any objection which it may have to the laying of venue in any such
suit, action or proceeding in any such court; and (iv) agree that service of
any court paper may be made in such manner as may be provided under
applicable laws or court rules governing service of process.
Section 1.10 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York
(regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof) as to all matters, including but not
limited to matters of validity, construction, effect, performance and
remedies.
Section 1.11 ENTIRE AGREEMENT. This Agreement, the Disclosure
Schedules, and the Exhibits and other documents referred to herein or
delivered pursuant hereto which form a part hereof constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and
oral, between the parties or any of them with respect to the subject matter
hereof. The confidentiality agreement made prior to the date of this
Agreement between Fiberite and Buyer is hereby terminated effective as of the
Closing Date with respect to information included in the Acquired Assets or
disclosed to Buyer in connection with the License Agreement.
Section 1.12 AMENDMENT, MODIFICATION AND WAIVER. This Agreement
may be amended, modified or supplemented at any time only by mutual written
agreement of Stamford and Buyer. Any failure of Stamford and Fiberite, on
the one hand, or Buyer, on the other hand, to comply with any term or
provision of this Agreement may be waived, with respect to Buyer, by Stamford
and, with respect to Stamford or Fiberite, by Buyer, by an instrument in
writing signed by or on behalf of the
37
appropriate party, but such waiver or failure to insist upon strict
compliance with such term or provision shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure to comply.
Section 1.13 SPECIFIC PERFORMANCE. The parties acknowledge and
agree that any breach of the terms of this Agreement would give rise to
irreparable harm for which money damages would not be an adequate remedy and
accordingly the parties agree that, in addition to any other remedies, each
shall be entitled to enforce the terms of this Agreement by a decree of
specific performance without the necessity of proving the inadequacy of money
damages as a remedy.
Section 1.14 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
Section 1.15 EFFECTIVE DATE. This Agreement shall be deemed an
agreement between Stamford and Buyer until executed by Fiberite Holdings and
Fiberite at which time it shall be deemed to be an agreement among Buyer,
Stamford, Fiberite Holdings and Fiberite, and Stamford shall cause Fiberite
to execute this Agreement, the License Agreement, the Transitional Services
Agreement and the Tri-party Agreement immediately following the closing of
the Stock Purchase Agreement (the "Effective Date"). Without limiting the
generality of the foregoing, all representations, warranties, covenants or
other obligations of any kind made or incurred by Fiberite as a result of the
execution and delivery of this Agreement shall be deemed to have been made as
of, and Fiberite shall deliver its Schedules applicable to the
representations and warranties it is making at, the time of its delivery of a
signature page hereto.
Section 1.16 RISK OF LOSS. From the date hereof through the
Closing Date, all risk or loss or damage to the properties included in the
Acquired Assets or the Acquired Business shall be borne by Buyer. This
provision shall be of no force or effect if this Agreement is terminated
pursuant to Article V.
38
ARTICLE II
CERTAIN DEFINITIONS
For the purposes of this Agreement, the following words and phrases
shall have the following meanings:
"ACQUIRED ASSETS" has the meaning assigned in Section 1.1(a).
"ACQUIRED BUSINESS" has the meaning assigned in Section 1.1(a).
"ACQUIRED INTELLECTUAL PROPERTY" has the meaning assigned in Section
1.1(a)(v).
"AFFILIATE" has the meaning assigned in Section 7.8(c).
"AGREEMENT" means this Amended and Restated Asset Purchase
Agreement, dated as of August 25, 1997, together with any amendments thereto,
by and among Fiberite, Fiberite Holdings, Stamford and Buyer.
"ALLOCABLE AMOUNT" has the meaning assigned in Section 4.10.
"ALLOCATION STATEMENT" has the meaning assigned in Section 4.10.
"ALTERNATIVE TRANSACTION" has the meaning assigned in Section 4.17.
"ANTITRUST DIVISION" has the meaning assigned in Section 4.3.
"ASSUMED LIABILITIES" has the meaning assigned in Section 1.1(d).
"XXXX OF SALE AND ASSIGNMENT" means the duly executed xxxx of sale
and assignment agreement, substantially in the form attached hereto as
Exhibit B, which Stamford and Fiberite will deliver to Buyer effecting the
sale, assignment, transfer and delivery of the Acquired Assets.
39
"BUYER" means Hexcel Corporation.
"BUYER INDEMNITEE" has the meaning assigned in Section 6.2.
"CLAIM" has the meaning assigned in Section 6.5.
"CLOSING" means the closing of the transactions described in
Section 1.3.
"CLOSING DATE" means the date of the Closing as determined pursuant
to Section 1.3.
"CODE" means the Internal Revenue Code of 1986, as amended. All
citations to the Code, or to the Treasury Regulations promulgated thereunder,
shall include any amendments or substitute or successor provisions thereto.
"COMMON STOCK" means the shares of Common Stock, par value $.01 per
share, of Fiberite Holdings.
"CYTEC" shall mean Cytec Industries, Inc.
"CYTEC ASSET PURCHASE AGREEMENT" shall mean the Asset Purchase
Agreement, dated as of August 25, 1997 by and among Stamford, Fiberite
Holdings, Fiberite and Cytec.
"DEPOSIT" has the meaning assigned in Section 1.2.
"EFFECTIVE DATE" has the meaning assigned in Section 7.15.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCLUDED ASSETS" has the meaning assigned in Section 1.1(c).
40
"EXCLUDED BUSINESSES" means the entire business conducted by
Fiberite as of the Closing Date other than the Acquired Business.
"EXCLUDED INTELLECTUAL PROPERTY" shall mean all Intellectual
Property rights and other proprietary rights of Fiberite other than the
Acquired Intellectual Property.
"EXCLUDED LIABILITIES" has the meaning assigned by Section 1.1(e).
"FIBERITE" means Fiberite, Inc.
"FIBERITE HOLDINGS" means Fiberite Holdings, Inc., a Delaware
corporation.
"FILING PARTY" has the meaning assigned in Section 4.12.
"FTC" has the meaning assigned by Section 4.3.
"HSR ACT" has the meaning assigned in Section 2A.3(b).
"HEXCEL" means Hexcel Corporation, a Delaware corporation.
"INDEMNIFIED PARTY" has the meaning assigned in Section 6.4.
"INDEMNIFYING PARTY" has the meaning assigned in Section 6.4.
"INTELLECTUAL PROPERTY" shall mean throughout the world (i) Patents,
(ii) Trademarks, (iii) Trade Names, (iv) Know-how, (v) shop rights and (vi)
copyrights.
"KNOW-HOW" shall mean all trade secrets, know-how (including product
know-how and use and application know-how), formulas, processes, product
designs, specifications, quality control procedures, manufacturing,
engineering and other drawings, technology, technical information, safety
information, lab journals, engineering data and design and engineering
specifications,
41
research records, market surveys and all promotional literature, customer and
supplier lists and similar data.
"LIENS" means all mortgages, pledges, security interests, liens,
changes, options, easements, rights of way or other encumbrances.
"LOSSES" has the meaning assigned in Section 6.2.
"MATERIAL ADVERSE EFFECT" means an event which has a material
adverse effect on the business, operations, financial condition or results of
operations of the Acquired Business taken as a whole, or materially impairs
the value or usefulness of the Acquired Assets taken as a whole.
"NON-ASSIGNED CONTRACTS" has the meaning set forth in Section 4.11.
"NON-FILING PARTY" has the meaning assigned in Section 4.12.
"OTHER INSTRUMENTS" has the meaning assigned in Section 1.1(b).
"PARTIES" has the meaning set forth in the preamble.
"PATENTS" shall mean patents (including all reissues, divisions,
re-examinations, continuations, continuations in part and extensions
thereof), patent applications and patent disclosures docketed and all other
patent rights.
"PERMITTED DEBT" means indebtedness to finance the transactions
contemplated by the Stock Purchase Agreement in an amount and on terms
approved by Buyer in writing.
"PERMITTED LIENS" means mechanics', carriers', workers', repairers',
materialmens', warehousemens' and other similar Liens arising or incurred in
the ordinary course of business consistent with past practice and which would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
42
"PERMITTED MERGER" means the merger of Stamford and Fiberite
Holdings with and into Fiberite, with Fiberite as the surviving corporation
immediately following the closing of the Stock Purchase Agreement.
"PERSON" has the meaning assigned in Section 7.8(b).
"PLANS" means the Fiberite, Inc. Pension Plan, the Fiberite, Inc.
Service Related Pension Plan, the Fiberite, Inc. 401(k) Plan I, and the
Fiberite, Inc. 401(k) Plan II.
"PRIOR OCCURRENCES" has the meaning assigned by Section 4.7.
"PURCHASE PRICE" has the meaning set forth in Section 1.2(a).
"REGULATORY APPROVALS" means all necessary consents and approvals of
any United States or any other governmental authority that are required for
the consummation of the transactions contemplated by this Agreement, and the
expiration or termination of any waiting period applicable to the
consummation of the transactions contemplated by this Agreement under the HSR
Act and under any applicable Antitrust and competition law statutes and
regulations of foreign jurisdictions, or other applicable law.
"REMAINDER" has the meaning assigned in Section 1.2.
"RETURN" means any report, return or other information filed with or
required to be supplied to a taxing authority in connection with Taxes.
"SATELLITE BUSINESS" shall mean the business of developing,
manufacturing and selling composite materials or components thereof for
incorporation into satellites.
"SCHEDULE(s)" means any schedule(s) included in the Disclosure
Schedule.
"SELLER INDEMNITEE" has the meaning assigned in Section 6.3
43
"SELLING STOCKHOLDERS" shall refer to the stockholders and
optionholders of Fiberite Holdings existing immediately prior to the closing
of the Stock Purchase Agreement.
"STAMFORD" means Stamford FHI Acquisition Corp.
"STAMFORD COVENANT" has the meaning assigned in Section 6.2.
"STOCK PURCHASE AGREEMENT" means the Stock Purchase and Sale
Agreement, dated as of April 20, 1997 by and among Stamford, Fiberite and the
Selling Stockholders.
"TAXES" means all taxes, assessments, charges, duties, fees, levies
or other governmental charges, including, without limitation, all Federal,
state, local, foreign and other income, gross receipts, franchise, profits,
capital gains, capital stock, transfer, sales, use, occupation, property,
excise, severance, windfall profits, stamp, license, payroll, withholding,
social security and other taxes, assessments, charges, duties, fees, levies
or other governmental charges of any kind whatsoever (whether payable
directly or by withholding and whether or not requiring the filing of a
Return), and all estimated taxes, deficiency assessments, additions to tax,
penalties and interest.
"THIRD PARTIES" means any parties other than the Parties to this
Agreement and their respective Affiliates.
"TRADEMARKS" shall mean trademarks and service marks, registrations
thereof, pending applications therefor and such unregistered rights as may
exist through use.
"TRADE NAMES" shall mean trade names, brand marks, trade dress,
brand names, logos and all other names and slogans or product goodwill for
which no trademark registration has been obtained and for which no
application is pending.
"TRANSITIONAL SERVICES AGREEMENT" means the Transitional Services
Agreement contemplated by, and on the terms set forth in Exhibit E.
44
"TRI-PARTY AGREEMENT" shall mean the agreement dated as of August
25, 1997, by and among Cytec, Buyer and Fiberite, providing for, among other
things, the assumption of the obligations under the License Agreement and
Transitional Services Agreement by Cytec.
"UNDERTAKING" means the duly executed undertaking, substantially in
the form attached hereto as Exhibit D, whereby Buyer will assume and agree to
pay and discharge the Assumed Liabilities.
45
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the
date first above written.
STAMFORD FHI ACQUISITION CORP.
By:
------------------------------
Title:
---------------------------
FIBERITE, INC.
By:
------------------------------
Title:
---------------------------
FIBERITE HOLDINGS, INC.
By:
------------------------------
Title:
---------------------------
HEXCEL CORPORATION
By:
------------------------------
Title:
---------------------------
Schedule 1.1(a)(ii)
CERTAIN ACQUIRED ASSETS
All of the following assets:
1. All computer software, computer programs and systems,
databases, documentation and resource material relating
thereto to the extent that they relate to the Acquired
Business.
2. All inventory, wherever located, including raw materials,
work-in-progress, finished goods, supplies and other
inventories and any rights of Fiberite to the warranties
received from suppliers and any related claims, credits,
rights of recovery and setoff with respect to such inventory
used or held for use in the Acquired Business.
3. All rights in, to and under all contracts, licenses, leases
(other than leases for real property), commitments, purchase
orders and other agreements to the extent that they relate to
the Acquired Business and to which Fiberite or Fiberite
Holdings is a party or by which Fiberite or Fiberite Holdings
is bound.
4. All customer lists to the extent that they relate to the
Acquired Business.
5. All permits, licenses, approvals and authorizations by
governmental authorities or third parties to the extent that
they relate to the Acquired Business.
6. All books of account and other accounting records (or copies
thereof) of Fiberite to the extent that they relate to the
Acquired Business.
7. All goodwill of the Acquired Business (other than the Fiberite
name).
8. Trademarks and Tradenames that relate exclusively to the
Acquired Business, provided that to the extent that the
Fiberite name is included in any such
Trademark or Tradename Buyer will discontinue the use of the Fiberite
name in connection therewith in accordance with Section 4.8.
Schedule 1.1(e)(xiii)
CERTAIN EMPLOYMENT AGREEMENTS
1. Amended Employment Agreement between Xxxxx X. Xxxxxx and
Fiberite, Inc. effective April 15, 1997, approved and made
effective by the Board of Directors on April 16, 1997.
2. Amended and Restated Executive Employment Agreement between
Xxxxxx X. Xxxxxx and Fiberite, Inc. effective April 16, 1997.
3. Amended and Restated Executive Employment Agreement between
Xxx XxXxxxx and Fiberite, Inc. effective April 16, 1997.
4. Amended and Restated Executive Employment Agreement between
Xxxxxxx Xxxxxx and Fiberite, Inc. effective April 16, 1997.
5. Employment Severance Agreement between Xxxx X. Xxxxx and
Fiberite, Inc., effective April 9, 1997.
