Asset Purchase Agreement
This Asset Purchase Agreement is entered into as of April 6, 2001, by and
between Tube Turns Technologies, Inc., a Kentucky corporation ("Buyer"), and
Xxxx Corporation, a Virginia corporation ("Xxxx").
This Agreement contemplates a transaction in which Buyer will purchase
certain of the assets (and assume certain of the liabilities) of the Xxxxxx
Forge Plant (the "Division") of Xxxx in return for cash. In return for this cash
consideration and the assumption of certain liabilities, Xxxx has agreed to
enter into a seven-year Supply Agreement to (i) preserve the existing business
of Xxxxxx, (ii) transfer additional business to Buyer and its affiliates, and
(iii) provide opportunities for Buyer and its affiliates to generate additional
business with Xxxx.
This Agreement and the Supply Agreement are integral parts of the same
transaction. Each is, in part, consideration for the other. It is Dana's
intention to deliver, subject to market conditions, the estimated annual
production volumes contemplated by Exhibit 1 and Exhibit 2 of the Supply
Agreement to Buyer over the term of the Supply Agreement.
The Supply Agreement provides for Buyer to serve as the sole-source for the
part numbers (and their replacements and/or substitutions, if any) listed on
Exhibits 1 and 2, but Xxxx in no way guarantees that the actual production
volumes to be received by Buyer will be equal to the estimated annual production
volumes listed on Exhibits 1 and 2 of the Supply Agreement.
Under this Agreement, as provided more specifically herein, Xxxx will
retain responsibility for all liabilities and obligations arising out of or
related to the ownership or operation of the Acquired Assets or the business of
the Division prior to Closing, including events related thereto which occur
prior to Closing.
The Parties agree as follows:
1. Definitions.
1.1. RESERVED:
1.2. "Acquired Assets" means all right, title, and interest in and to the
following assets of Xxxx constituting and relating primarily to the Division:
(a) personal property leases listed in Part 1.2(a) of the Disclosure
Letter (the "Personal Property Leases");
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(b) contracts including, without limitation, customer contracts,
distributor agreements, agency agreements, royalty and license agreements
and rights, purchase agreements, rights to use technology owned by others
and all other agreements of whatever nature used by or affecting the
Division and all of which are listed in Part 1.2(b) of the Disclosure
Letter (the "Purchased Contracts");
(c) inventory including, but not limited to, supplies, raw
materials, component parts, work-in-progress and finished goods on hand,
the most recently available list of which is listed in Part 1.2(c) of the
Disclosure Letter (the "Inventory"), except for those raw materials or
components, if any, which have been consigned to the Division by its
customers under the consignment arrangements identified and described in
Part 1.2(c) of the Disclosure Letter and transferred subject thereto and
except for the inventory specifically associated with the Class 37 family
of parts to be retained by Xxxx;
(d) equipment, dies, tooling, tooling fixtures, spare parts,
fittings, vans, trucks, trailers, office furniture, fixtures, supplies and
other tangible personal property, including, without limitation, the
personal property listed in Part 1.2(d) of the Disclosure Letter (the
"Fixed Assets"), except for customer tooling which has been consigned to
the Division by its customers (both unrelated customers and other
facilities of Xxxx), the possession of which shall be transferred to Buyer
subject to the terms of the consignment arrangements, if any, identified
and described in Part 1.2(d) of the Disclosure Letter (and transferred
subject thereto) and the terms and conditions of the Supply Agreement;
(e) on-site computer and telecommunications hardware and software
owned and used primarily by Xxxx, which hardware is listed in Part 1.2(d)
of the Disclosure Letter as Fixed Assets and which software is listed in
Part 1.2(e) of the Disclosure Letter (the "Software"), but excluding any
Oracle ERP software;
(f) real property and improvements located thereon listed in Part
1.2(f) of the Disclosure Letter (the "Real Property");
(g) Intellectual Property, 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,
including, without limitation, the intangible assets set forth in Part
1.2(g) of the Disclosure Letter;
(h) all operating data, books and records of Xxxx relating to the
Division, including customer lists and information relating to customers
and suppliers of the Division;
(i) to the extent permitted by law, all licenses, certificates,
permits and other governmental authorizations relating to the Division,
including, without limitation, those set forth in Part 1.2(i) of the
Disclosure Letter (the "Licenses and Permits"); and
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(j) the Know-How and all other assets, whether tangible or
intangible, which are used in, held by, or useful to the Division except
for any Excluded Assets and except for any leases or contracts not included
within the Personal Property Leases and the Purchased Contracts.
1.3. "Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, injunctions,
judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs,
liabilities, obligations, taxes, liens, losses, expenses, and fees, including
court costs and reasonable attorneys' fees and expenses.
1.4. "Affiliate" is defined in Rule 12b-2 of the regulations promulgated
under the Securities Exchange Act of 1934, as amended.
1.5. "Assumed Liabilities" means the following liabilities and obligations
directly related to the ownership of the Acquired Assets or the operation of the
business of the Division, and no others:
(a) all liabilities and obligations of Xxxx which arise or are to be
performed after the Closing Date (except for those relating to pre-Closing
defaults (including actions, events or practices which may be the basis for
a claim of such a pre-Closing default)) under any Purchased Contract
(including, but not limited to, the Collective Bargaining Agreement) or
Personal Property Lease;
(b) all liabilities and obligations of Xxxx which arise or are to be
performed after the Closing Date (except for those relating to pre-Closing
defaults (including actions, events or practices which may be the basis for
a claim of such a pre-Closing default)) relating to accrued vacation and
the Hourly Plans (but excluding non-pension coverage for any retired hourly
employees as of the Closing, and excluding non-pension coverage for any
employee who is on a personal medical leave or long term disability leave
as of Closing, for all claims incurred during such leave both before and
after the Closing until such time as such employee returns to work for
Buyer, which shall remain the liability of Xxxx as set forth in Section
6.14 hereof);
(c) all warranty liability arising from services performed by Buyer
or the Division with respect to products manufactured after the Closing
Date; and
(d) all liabilities and obligations of or related to the Acquired
Assets arising after the Closing Date (including, without limitation,
liabilities and obligations of the type described as Excluded Liabilities
in (S)1.25) to the extent such liabilities and obligations resulted from
circumstances and/or events occurring after the Closing Date.
1.6. "Buyer" is defined in the preface above.
1.7. "Closing" is defined in (S)2.5 below.
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1.8. "Closing Date" is defined in (S)2.5 below.
1.9. "Code" means the Internal Revenue Code of 1986, as amended.
1.10. "Collective Bargaining Agreement" means the collective bargaining
agreement dated December 21, 1995, by and between Eaton and Local 1667 of the
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, as amended.
1.11. "Confidential Information" means any information concerning the
businesses and affairs of Xxxx or of the Division that is not already generally
available to the public.
1.12. "Xxxx" is defined in the preface above.
1.13. "Disclosure Letter" is defined in (S)3 below.
1.14. "Division" is defined in the preface above.
1.15. "Eaton" means Xxxxx Corporation.
1.16. "Eaton Agreement" means the purchase agreement and related documents
pursuant to which Dana purchased the Division and other assets from Eaton, which
transaction closed as of January 1, 1998.
1.17. "Employee Benefit Plan" means each bonus, pension (as defined in
ERISA (S)3(2)), profit sharing, deferred compensation arrangement, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
medical, employment, consulting, termination or indemnification agreement,
welfare or other plan, arrangement or understanding (whether or not legally
binding), including multi-employer plans as defined in ERISA (S)3(37), providing
compensation or benefits to any current or former employee, officer or director
of Xxxx maintained, or contributed to, by Xxxx.
1.18. "Encumbrance" means any charge, claim, community property interest,
equitable interest, lien, option, pledge, security interest, right of first
refusal or restriction of any kind, including any restriction on use, voting,
transfer, receipt of income, or exercise of any other attribute of ownership.
1.19. "Environment" means soil, land surface or subsurface strata, surface
waters (including navigable waters, streams, ponds, drainage basins and wet
lands), ground waters, drinking water supply, stream sediments, ambient air
(including indoor air), plant and animal life, and any other environmental
medium or natural resource.
1.20. "Environmental, Health and Safety Requirements" means all federal,
state, local and foreign statutes, regulations, ordinances and similar
provisions having the force or effect of law, all judicial and administrative
orders and determinations, and all common law concerning public health and
safety, worker health and safety, and
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pollution or protection of the Environment, including, without limitation, all
those relating to the presence, use, production, generation, handling,
transportation, treatment, storage, disposal, distribution, labeling, testing,
processing, discharge, release, threatened release, control, or cleanup of any
hazardous materials, substances or wastes, chemical substances or mixtures,
pesticides, pollutants, contaminants, toxic chemicals, petroleum products or
byproducts, asbestos, polychlorinated biphenyls, noise or radiation.
1.21. "Environmental, Health and Safety Liabilities" means any cost,
damage, expense, liability, obligation or other responsibility arising pursuant
to Environmental, Health and Safety Requirements and consisting of or relating
to:
(a) any environmental, health or safety matters or conditions
(including on-site or off-site contamination, occupational safety and
health, and regulation of chemical substances or products);
(b) fines, penalties, judgments, awards, settlements, legal or
administrative proceedings, damages, losses, claims, demands and response,
investigative, remedial, or inspection costs and expenses arising under
Environmental, Health and Safety Requirements;
(c) financial responsibility under Environmental, Health and Safety
Requirements for cleanup costs or corrective action, including any
investigation, cleanup, removal, containment, or other remediation or
response actions ("Cleanup") required by applicable Environmental, Heath
and Safety Requirements (whether or not such Cleanup has been required or
requested by any governmental body or any other Person) and for any natural
resource damages; or
(d) any other compliance, corrective, investigative or remedial
measures required under Environmental, Health and Safety Requirements.
The terms "removal," "remedial," and "response action," include the types of
activities covered by the United States Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. (S)9601 et seq., as amended
("CERCLA").
1.22. "Environmental Law" means any applicable federal, state, local or
foreign law (including common law), judicial decision, permit, statute,
ordinance, rule, regulation, code, order, judgment, decree or injunction
relating to (a) the protection of the Environment (including, without
limitation, air, water, vapor, surface water, groundwater, drinking water and
surface water and surface or subsurface land), (b) the exposure to, or the use,
storage, recycling, treatment, generation, transportation, processing, handling,
labeling, protection, release or disposal of, pollutants, contaminants, wastes
or chemicals or any toxic, radioactive, ignitable, corrosive, reactive or
otherwise Hazardous Substance, waste or Material or (c) the effect of the
environment on human health or safety.
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1.23. "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
1.24. "Excluded Assets" means:
(a) any cash and cash equivalents presented on a basis consistent
with the Financial Statements, whether on deposit or in lock boxes or
otherwise;
(b) any accounts receivable;
(c) Oracle ERP software;
(d) customer tooling;
(e) prepaid expenses;
(f) any rights of Xxxx in and with respect to the assets associated
with its Employee Benefit Plans other than the Hourly Plans;
(g) any of the rights of Xxxx under this Agreement (or under any
side agreement between Xxxx on the one hand and Buyer on the other hand
entered into on or after the date of this Agreement); and
(h) inventory specifically associated with the Class 37 family of
parts to be retained by Xxxx.
1.25. "Excluded Liabilities" means:
(a) any intra-company obligation between the Division, Xxxx and any
other Affiliate of Xxxx;
(b) any accounts payable or accrued liabilities existing on the
Closing Date (other than those liabilities specifically assumed under
(S)1.5(b));
(c) any liability or obligation of Xxxx for any local, state or
federal income, personal property, real property or other tax, assessment
or levy of any kind;
(d) any current or long-term liability or obligation of Xxxx with
respect to indebtedness for borrowed money;
(e) any liability or obligation of Xxxx with respect to occurrences
prior to the Closing Date;
(f) any liability or obligation of Xxxx for any injury to or death
of any person or damage to or destruction of any property, whether based on
negligence, strict liability, enterprise liability, products liability or
any other legal or equitable theory (including consequential damages)
arising from products manufactured or sold or services rendered by Xxxx on
or prior to the Closing Date, in all cases;
(g) any liability of Xxxx for (i) occurrences prior to the Closing
Date with respect to any past or present employee which could give such
employee a
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cause of action against Xxxx, including, but not limited to, any employment
discrimination claims, (ii) any claims, damages, liability or other amounts
with respect to the Hourly Plans arising out of occurrences, acts, events
or practices prior to the Closing Date, (iii) any claims, damages,
liability or other amounts with respect to Employee Benefit Plans other
than the Hourly Plans, arising at any time, and (iv) expenses paid or
payable to former employees whose employment has been terminated by Xxxx
prior to the Closing Date;
(h) any action, suit, claim or proceeding against Xxxx based on
facts or circumstances occurring prior to the Closing Date;
(i) any liability or obligation of Xxxx arising prior to the Closing
Date with respect to the Personal Property Leases and the Purchased
Contracts (including but not limited to the Collective Bargaining
Agreement), whenever asserted, that arises as a result of a breach or
violation thereof occurring prior to the Closing Date;
(j) any liabilities resulting from medical coverage, dental coverage
and/or disability coverage of Dana's employees and former employees with
respect to claims at any time for any former employee who is retired as of
the Closing, and with respect to claims for any employee who is on a
personal medical leave or long term disability leave as of the Closing, for
all claims incurred during such leave both before and after the Closing
(with respect to the foregoing, Xxxx shall bear these liabilities as set
forth in Section 6.14), and with respect to any claims incurred prior to
the Closing Date, whether or not reported as of the Closing Date. A claim
shall be deemed to have been incurred when the service is provided;
provided, however, a claim for a hospitalization stay (and medical
treatment during such stay) which begins prior to the Closing Date and
which ends after the Closing Date shall be deemed to have been incurred
prior to the Closing Date;
(k) any liability or obligation of Xxxx resulting from workers'
compensation claims having a date of injury (or, in the case of a claim
relating to illness or occupational disease, the last significant exposure)
prior to the Closing Date and any liabilities resulting from any such
claims arising out of any violation of environmental laws occurring prior
to the Closing;
(l) any liability or obligation of Xxxx arising from events
occurring prior to the Closing Date with respect to the property or assets
of third parties which may be in its possession or control;
(m) any liability or obligation of Xxxx arising out of any violation
of Environmental, Health and Safety Requirements or relating to Hazardous
Activity, Hazardous Materials or environmental matters;
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(n) any action, suit, claim or proceeding against Xxxx for
infringement of a third party's intellectual property rights based upon
facts or circumstances occurring prior to the Closing Date;
(o) any liabilities resulting from agreements made between Xxxx and
its employees for purposes of assisting Xxxx with the divestiture of the
Division, including, without limitation, pay-to-stay contracts, contracts
which pay a commission based upon the completion of the divestiture by Xxxx
and agreements to pay a bonus based upon the completion of a sale of the
Division;
(p) any liability resulting from any lease for real property; and
(q) any liability or obligation of Xxxx accruing on or before the
Closing Date relating to unpaid wages, salaries or other benefits
(including taxes and allowances, if any) or any other employee cost
whatsoever for any and all individuals and any liability or obligation
under the Hourly Plans (other than those specific liabilities or
obligations assumed under (S)1.5(b)).
1.26. "Financial Statements" is defined in (S)3.6 below.
1.27. "GAAP" means United States generally accepted accounting principles
as in effect from time to time.
1.28. "Governmental Entity" means any government or any court, arbitral
tribunal, administrative agency or commission or other governmental or other
regulatory authority or agency, whether Federal, state, local or foreign.
1.29. "Hazardous Activity" means the distribution, generation, handling,
importing, management, manufacturing, processing, production, refinement,
Release, storage, transfer, transportation, treatment, or use (including any
withdrawal or other use of groundwater) of Hazardous Materials in, on, under,
about or from the facilities of the Division or any part thereof into the
Environment, and any other act, business, operation or thing that is regulated
by any Environmental, Health and Safety Requirements or Environmental Law.
1.30. "Hazardous Materials" means any waste or other substance that is
listed, defined, designated, or classified as or otherwise determined to be
hazardous, radioactive, or toxic or a pollutant or a contaminant under or
pursuant to any Environmental, Health and Safety Requirements, including any
admixture or solution thereof, and specifically including petroleum and all
derivatives thereof or synthetic substitutes therefor and asbestos or asbestos-
containing materials.
1.31. "Hazardous Substances" means any hazardous substances within the
meaning of 101(14) of CERCLA, 42 U.S.C. (S)9601(14), or any pollutant,
contaminant, waste chemical or other toxic, radioactive, ignitable, corrosive,
reactive or otherwise hazardous substance, waste or material that, in each case,
is regulated under any Environmental Law, including, without limitation,
petroleum, its derivatives, by-products
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or other hydrocarbons, asbestos-containing materials, polychlorinated biphenyls
and urea formaldehyde.
1.32. "Hourly Plans" means the Xxxx Corporation Pension Plan for Hourly-
Rate Employees of the Xxxxxx Heavy Axle & Brake Division-Xxxxxx Plant, defined
benefit pension plan and post-retirement medical plan for the hourly employees
of the Division, (but excludes non-pension coverage for any hourly employee who
is on long term disability leave or personal medical leave or who is retired as
of the Closing, which coverage costs shall be retained by Xxxx as set forth in
Section 6.14 hereof) described in the Collective Bargaining Agreement.
1.33. RESERVED
1.34. "Intellectual Property Rights" means the Trademarks and Trade Secrets
and other similar rights in technology that are owned, used or controlled by
Xxxx and used in, held by or useful primarily to the business of the Division.
1.35. "Key Employee" means any of the following individuals: Xxxxx Xxxxx,
Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Poor, and Xxxx Xxxxxxx.
1.36. "Know-How" means all proprietary and non-proprietary know-how and
information used in or useful to the business of the Division on the Closing
Date including, without limitation (a) design drawings, (b) specifications and
performance criteria, (c) operating instructions and maintenance manuals, (d)
manufacturing and service information, including production documentation,
methods, layouts and supplier and cost information, (e) copies of on-site
computer software and related documentation that pertain to the operation of the
business of the Division, including, without limitation, available source and
object code listings, (f) prototypes, models or samples, (g) computer-aided
design or computer-aided manufacturing data, (h) information related to the
business of the Division communicated to Xxxx in meetings or conferences
regarding customers and/or products, but excluding any proprietary internal
correspondence, (i) files relating to applications for Intellectual Property
Rights, and (j) all files relating to customers and other tangible materials
that are used in or useful to the business of the Division on the Closing Date.
1.37. "Knowledge" means the actual knowledge, after reasonable
investigation, of the Key Employees, Xxxxxx Xxxxxx, Xxxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx.
1.38. "Most Recent Balance Sheet" means the balance sheet contained within
the Most Recent Financial Statements.
1.39. "Most Recent Financial Statements" is defined in (S)3.6 below.
1.40. "Most Recent Fiscal Month End" is defined in (S)3.6 below.
1.41. "Most Recent Fiscal Year End" is defined in (S)3.6 below.
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1.42. "Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
1.43. "Party" means either Buyer or Xxxx. "Parties" means both Buyer and
Xxxx.
1.44. "Permitted Encumbrances" means Encumbrances (other than Encumbrances
imposed under ERISA or any Environmental, Health and Safety Requirements) for ad
valorem taxes or other similar assessments or charges of governmental bodies
that are not yet due and payable.
1.45. "Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
1.46. "Pre-Closing Environmental Liability" means any and all liabilities,
whether accrued, contingent, absolute, determined, determinable, known, unknown
or otherwise, arising under or relating to Environmental Laws or relating to
Hazardous Substances and arising from events occurring or conditions existing
prior to the Closing Date in connection with the Acquired Assets.
1.47. "PP&E" means all property, plant and equipment of the Division.
1.48. "Purchase Price" is defined in (S)2.3 below.
1.49. "Release" means any spilling, leaking, emitting, discharging,
depositing, escaping, leaching, dumping or other releasing into the Environment,
whether intentional or unintentional.
1.50. "Remedial Action" means any action to investigate, evaluate, assess,
test, monitor, remove, respond to, treat, xxxxx, remedy, correct, clean-up or
otherwise remediate the release or presence of any Hazardous Substance.
1.51. "Slow Inventory" is defined in (S)6.5(a) below.
1.52. "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.
1.53. "Supply Agreement" means a Supply Agreement by and between the
Parties in the form attached as Exhibit 7.1.
1.54. "Taxes" means (a) any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Section 59A of
the Code), customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value
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added, alternative or add-on minimum, estimated, or other tax or governmental
charge of any kind whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not, (b) any liability for the payment of any
amounts of the type described in clause (a) of this (S)1.54 as a result of being
a member of an affiliated, consolidated, combined or unitary group for any
period, and (c) any liability for the payment of any amounts of the type
described in clauses (a) or (b) of this (S)1.54 as a result of any express or
implied obligation to indemnify any other person or as a result of any
obligations under any agreements or arrangements with any other person with
respect to such amounts and including any liability for taxes of a predecessor
or transferor entity.
1.55. "Tax Return" means any return, declaration, report, claim for refund
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
1.56. "Third Party Claim" is defined in (S)8.6(a) below.
1.57. "Trademarks" means the unregistered common law trademark "Xxxxxx
Forge" and the goodwill associated therewith, and all trade dress and product
configurations that are used or intended to be used by Xxxx (and not by any
other entity or business group within Xxxx) to identify the business of the
Division or any part thereof.
1.58. "Trade Secrets" means all proprietary information used in, held by
or useful to Xxxx for use in the business of the Division and that (a) derives
independent economic value, actual or potential, from being generally known to,
and not being readily ascertainable by, third parties who can obtain economic
value from its disclosure or use, and (b) is the subject of efforts by Xxxx that
were reasonable under the circumstances to maintain its secrecy, such as,
without limitation, proprietary specifications, formulas, drawings, models, blue
prints, software, production techniques and processes, retail and wholesale
customer lists, vendor lists, compilations, merchandising information, cost and
pricing information, business systems and methods and information regarding
future business opportunities.
2. Basic Transaction.
2.1. Purchase and Sale of Assets. On and subject to the terms and
conditions of this Agreement, Buyer shall purchase from Xxxx, and Xxxx shall
sell, transfer, assign, convey, and deliver to Buyer, all of the Acquired Assets
at the Closing for the consideration specified below in this (S)2.
2.2. Assumption of Liabilities. From and after the Closing, Buyer shall
assume and become responsible for all of the Assumed Liabilities. Buyer will not
assume or have any responsibility, however, with respect to any other obligation
or liability of Xxxx not included within the definition of Assumed Liabilities.
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2.3. Purchase Price. The Purchase Price for the sale and transfer of the
Acquired Assets will be Eleven Million Five Hundred Thousand Dollars
($11,500,000), plus the assumption of the assumed liabilities set forth in
(S)1.5 (the "Purchase Price").
2.4. Manner of Payment. Buyer shall pay Eleven Million Five Hundred
Thousand Dollars ($11,500,000) by wire transfer in immediately available funds
to an account specified by Xxxx on the Closing Date.
2.5. The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxx in Toledo,
Ohio, commencing at 9:00 a.m. local time on the second business day following
the satisfaction or waiver of all conditions to the obligations of the Parties
to consummate the transactions contemplated hereby (other than conditions with
respect to actions the respective Parties will take at the Closing itself) or
such other date as the Parties may mutually determine (the "Closing Date").
2.6. Deliveries at the Closing. At the Closing, (a) Xxxx will deliver to
Buyer the various certificates, instruments, and documents referred to in (S)7.1
below; (b) Buyer will deliver to Xxxx the various certificates, instruments, and
documents referred to in (S)7.2 below; (c) Xxxx will execute, acknowledge (if
appropriate), and deliver to Buyer (i) a general warranty deed for the Real
Property in substantially the form of Exhibit 2.6A; (ii) an assignment and
assumption agreement in substantially the form attached hereto as Exhibit 2.6B
(the "Assignment and Assumption Agreement"); and (iii) such other instruments of
sale, transfer, conveyance, and assignment as Buyer and its counsel reasonably
may request; (d) Buyer will execute, acknowledge (if appropriate), and deliver
to Xxxx (i) the Assignment and Assumption Agreement; and (ii) such other
instruments of assumption as Xxxx and its counsel reasonably may request; and
(e) Buyer will deliver to Xxxx the Purchase Price.
2.7. RESERVED.
2.8. Defined Benefit Plan Matters. Xxxx shall make all reportable event
filings with the Pension Benefit Guaranty Corporation with respect to the Xxxx
Corporation Pension Plan for Hourly-Rate Employees of the Xxxxxx Heavy Axle and
Brake Division - Xxxxxx Plant, which are required because of actions taken by
Dana or because of events occurring before the Closing Date, in a timely manner,
and shall provide a copy of all such reportable event filings to Buyer.
2.9. Allocation. The Parties agree to allocate the Purchase Price (and all
other capitalizable costs) among the Acquired Assets for all purposes (including
financial accounting and tax purposes) in accordance with the allocation
schedule attached hereto as Exhibit 2.9. The sale of inventory to Xxxx from the
Buyer pursuant to (S)6.5 shall be treated as an adjustment to the inventory
portion of the Purchase Price.
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2.10. Transfers of Personal Property Leases and Contracts. To facilitate
the assignment or transfer of the Personal Property Leases and Purchased
Contracts, Xxxx shall execute such documents of assignment or transfer as may be
prepared by Buyer that are necessary or appropriate for evidencing or recording
the assignments or transfers to Buyer. Subject to the terms of (S)2.14 hereof,
in the event any assignment or transfer of any Personal Property Lease or
Purchased Contract cannot be obtained, Xxxx and Buyer shall enter into a
license, sublicense, lease or independent contractor agreement, agency or other
relationship with respect thereto with the intent of providing the same benefits
and obligations to Buyer as if such assignment or transfer had occurred.
2.11. Transfer of Know-How. The communication of transferred Know-How from
Xxxx to Buyer shall occur primarily through Buyer's acquisition of property and
employment of personnel of the Division. In addition, in order to facilitate the
transfer of such Know-How, Xxxx shall use reasonable efforts, for a period of
three years from the Closing Date, to provide Buyer, upon Buyer's request,
copies of any documents or other information in Dana's possession, defining or
specifying the subject matter, nature and extent of the Know-How and take such
other action as the parties mutually agree is reasonable and necessary or
appropriate to effectuate the transfer of such Know-How.
2.12. Assignment of Intellectual Property Rights. On the Closing Date,
Xxxx shall execute and deliver assignments with respect to the Intellectual
Property Rights, including all goodwill associated therewith, as necessary to
perfect ownership, including record ownership, in and to the Intellectual
Property Rights, including all goodwill associated therewith.
2.13. Risk of Loss. The risk of loss and all obligations to insure the
Acquired Assets shall remain with Xxxx until the Closing and shall be assumed by
the Buyer at the time of Closing.
2.14. Assumption of Contractual Rights and Obligations Related Thereto. At
the time of Closing, Buyer shall assume the obligations pursuant to the Personal
Property Leases and the Purchased Contracts (collectively, the "Transferred
Rights, Obligations and Agreements") to the extent set forth in (S)1.5 hereof.
2.15. Efforts. Buyer shall use commercially reasonable efforts (without
the obligation to incur any undue expense) to assume and perform all of the
obligations under the Transferred Rights, Obligations and Agreements. To the
extent that the assignment or novation of any of the Transferred Rights,
Obligations and Agreements, or the assignment under (S)2.1 above, shall require
the consent of any other party (or in the event that any of the same shall be
non-assignable), neither the agreements contemplated by this Agreement nor any
actions taken hereunder pursuant to the provisions of any such agreements shall
constitute an assignment or novation or an agreement to assign or novate if such
assignment or novation or attempted assignment or novation would constitute a
breach thereof or result in the loss or diminution thereof;
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provided, however, that in each such case, Xxxx and Buyer shall use commercially
reasonable efforts (without the obligation to incur any undue expense) to obtain
the consent of such other party to an assignment or novation to Buyer.
Notwithstanding the foregoing, it shall be a condition to closing that any
consents required for the assignment of the Transferred Rights, Obligations and
Agreements designated by Buyer shall have been obtained on terms and conditions
satisfactory to Buyer, in its reasonable discretion.
If such consent is not obtained, Xxxx shall cooperate with Buyer in any
reasonable arrangement designed to provide Buyer with the benefits under any
such Transferred Rights, Obligations and Agreements, including appointing Buyer
to act as its agent to perform all of Dana's obligations under such Transferred
Rights, Obligations and Agreements and to collect and promptly remit to Buyer
all compensation payable pursuant to those Transferred Rights, Obligations and
Agreements and to enforce, for the account and benefit of Buyer, any and all
rights of Xxxx against any other person arising out of the breach or
cancellation of such Transferred Rights, Obligations and Agreements by such
other person or otherwise (any and all of which arrangements shall constitute,
as between the parties hereto, a deemed assignment or transfer); provided that,
to the extent that Buyer requires Xxxx to undertake any services or take any
actions in furtherance of the performance of such Transferred Rights,
Obligations and Agreements, any such services or actions shall be the subject of
a separate agreement that the parties shall, in good faith, negotiate as
promptly as possible and which shall be mutually acceptable to the parties.
Each party shall be responsible for all of its costs and expenses incurred by it
in connection with the actions required of it under this (S)2.15.
3. Representations and Warranties of Xxxx.
Xxxx represents and warrants to Buyer that the statements contained in this (S)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
(S)3), except as set forth in the letter delivered by Xxxx to Buyer (the
"Disclosure Letter"). The Disclosure Letter will be arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained in this (S)3.
3.1. Organization of Xxxx. Xxxx is a corporation duly organized, validly
existing, and in good standing under the laws of the Commonwealth of Virginia
with full power and authority to conduct the business of the Division as it is
now being conducted, to own or use the properties and assets of the Division
that it purports to own or use, and to perform all of its obligations under the
contracts related to the Division. Xxxx is duly qualified to transact business
and is in good standing in each jurisdiction in which the ownership or leasing
of the properties of the Division or the conduct of the business of the Division
makes such qualification necessary.
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3.2. Authorization of Transaction. Xxxx has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. The execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of Xxxx. This Agreement constitutes the valid and legally binding
obligation of Xxxx, enforceable in accordance with its terms and conditions.
3.3. Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in (S)2.2 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 Xxxx is subject or any provision of the
charter or bylaws of Xxxx 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 Xxxx 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 Encumbrance upon any of its
assets). Xxxx is not required to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any Person, including 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 (S)2.2 above).
3.4. Brokers' Fees. Except as shown on Part 3.4 of the Disclosure Letter,
Xxxx has no liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement. Xxxx shall pay in full all fees and commissions disclosed on Part 3.4
of the Disclosure Letter.
3.5. Title to Assets. Xxxx has good and marketable title to, or a valid
leasehold interest in, the properties and assets primarily used by or related to
the Division, or reflected as owned or leased and used by the Division in the
books and records of Xxxx, or shown on the Most Recent Balance Sheet, and all
properties and assets acquired after the date thereof, free and clear of all
Encumbrances (except Permitted Encumbrances), except for properties and assets
disposed of in the Ordinary Course of Business since the date of the Most Recent
Balance Sheet. Without limiting the generality of the foregoing, the Division
has good and marketable title to all of the Acquired Assets, free and clear of
any Encumbrances (except Permitted Encumbrances) or restriction on transfer.
The Real Property is not subject to any rights of way, building use
restrictions, exceptions, variances, reservations or limitations of any nature
except, (i) minor imperfections of title, if any, none of which materially
detracts from the value or impairs the use of the property subject thereto or
impairs the operation of Xxxx, and (ii) zoning laws and other land use
restrictions that do not impair the contemplated use of the
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property subject thereto. All buildings, plants and structures owned by Xxxx
related to the Division lie wholly within the boundaries of the Real Property,
have adequate access to public roads without crossing the property of a third
party and do not encroach upon the property of, or otherwise conflict with the
property rights of, any third Person.
3.6. Financial Statements. Attached hereto as Exhibit 3.6 are the
following financial statements (collectively the "Financial Statements"): (i)
balance sheets and statements of income of and for the fiscal year ended
December 31, 2000 (the "Most Recent Fiscal Year End"), for the Division; and
(ii) balance sheets and statements of income (the "Most Recent Financial
Statements") as of and for the three (3) months ended March 31, 2001 (the "Most
Recent Fiscal Month End"), for the Division. The Financial Statements (i) have
been prepared from and are in accordance with Dana's books and records, (ii) are
complete and correct and fairly and accurately present, in accordance with GAAP,
consistently applied (except as otherwise noted), the financial condition of the
Division as of such dates and the results of operations of the Division for such
periods, and (iii) were prepared in accordance with GAAP (except as otherwise
noted) and Dana's accounting practices, policies and procedures, applied on a
consistent basis throughout the periods indicated.
3.7. Events Subsequent to Most Recent Fiscal Year End. Except as disclosed
in Part 3.7 of the Disclosure Letter, since the Most Recent Fiscal Year End,
there has not been any material adverse change in the business, financial
condition, operations or results of operations of the Division taken as a whole.
Without limiting the generality of the foregoing, since that date and as it
relates to the Division:
(a) Xxxx has not sold, leased, transferred, or assigned any material
assets, tangible or intangible, outside the Ordinary Course of Business;
(b) Xxxx has not entered into any material agreement, contract,
lease, or license outside the Ordinary Course of Business;
(c) no party (including Xxxx) has accelerated, terminated, made
material modifications to, or cancelled any material agreement, contract,
lease, or license to which the Division is a party or by which it is bound;
(d) Xxxx has not made any material capital expenditures outside the
Ordinary Course of Business;
(e) Xxxx has not made any material capital investment in, or any
material loan to, any other Person outside the Ordinary Course of Business;
(f) Xxxx has not granted any license or sublicense of any rights
under or with respect to any Intellectual Property;
(g) Xxxx has not experienced any material damage, destruction, or
loss (whether or not covered by insurance) to its property;
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(h) Xxxx has not made any loan to, or entered into any other
transaction with, any of the employees of Xxxx;
(i) Xxxx has not entered into any employment contract or collective
bargaining agreement, written or oral, or modified the terms of any
existing such contract or agreement;
(j) Xxxx has not granted any increase in the base compensation of any
of its employees outside the Ordinary Course of Business;
(k) Xxxx has not adopted, amended, modified, or terminated any bonus,
profit-sharing, incentive, severance, or other plan, contract, or
commitment for the benefit of any of the employees of Xxxx, or taken any
such action with respect to any other Employee Benefit Plan;
(l) Xxxx has not made any other material change in employment terms
for any of its employees;
(m) Xxxx has not paid any amount to any third party with respect to
any liability or obligation (including any costs and expenses Xxxx has
incurred or may incur in connection with this Agreement and the
transactions contemplated hereby) which would not constitute an Assumed
Liability if in existence as of the Closing; and
(n) Xxxx has not committed to any of the foregoing.
3.8. Undisclosed Liabilities. Except as disclosed in Part 3.8 of the
Disclosure Letter, as it relates to the Division, Xxxx has no material liability
(whether known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due, including any liability for taxes), and unless
otherwise reflected or reserved against in the Financial Statements, Xxxx has no
obligations or liabilities, whether fixed or contingent.
3.9. Legal Compliance.
(a) As relates to the Division, except as set forth in Part 3.9 of
the Disclosure Letter and without reference to any matters covered by
(S)3.24:
(i) Xxxx is in compliance in all material respects with each legal
requirement applicable to it or to the conduct of the business of the
Division or the ownership or use of any of its assets related to the
Division, including, without limitation, the International Traffic in
Arms Regulations, 58 FR 39283;
(ii) no event has occurred or circumstance exists that (with or
without notice or lapse of time) may constitute or result in a material
violation by Xxxx of, or a material failure on the part of Xxxx to
comply with, any legal requirement related to the business of the
Division; and
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(iii) Xxxx has not received any notice or other communication
from any governmental body or any other Person regarding any violation of,
or failure to comply with, in any material respect, any legal requirement
related to the business of the Division, which is outstanding or unresolved
as of the date hereof.
(b) Part 3.9 of the Disclosure Letter contains a complete and
accurate list of each governmental authorization related to the Division that is
held by Xxxx. Each governmental authorization listed or required to be listed in
Part 3.9 of the Disclosure Letter is valid and in full force and effect. Except
as set forth in Part 3.9 of the Disclosure Letter:
(i) Xxxx is in compliance in all material respects with all of
the terms and requirements of each such governmental authorization held by
it;
(ii) no event has occurred or circumstance exists that may
(with or without notice or lapse of time) (A) constitute or result directly
or indirectly in a violation of or a failure to comply in any material
respect with any term or requirement of any governmental authorization
listed or required to be listed in Part 3.9 of the Disclosure Letter, or
(B) result directly or indirectly in the revocation, withdrawal,
suspension, cancellation or termination of, or any modification to, any
governmental authorization listed or required to be listed in Part 3.9 of
the Disclosure Letter;
(iii) Xxxx has not received at any time any written notice or
other written communication from any governmental body regarding (A) any
violation of or failure to comply in any material respect with any term or
requirement of any governmental authorization related to the business of
the Division, or (B) any actual, proposed, possible, or potential
revocation, withdrawal, suspension, cancellation, termination of, or
modification to any governmental authorization related to the business of
the Division, which is outstanding or unresolved as of the date hereof; and
(iv) all applications required to have been filed for the
renewal of the governmental authorizations listed or required to be listed
in Part 3.9 of the Disclosure Letter have been duly filed on a timely basis
with the appropriate governmental bodies, and all other filings required to
have been made with respect to such governmental authorizations have been
duly made on a timely basis with the appropriate governmental bodies.
Xxxx has all of the governmental authorizations necessary to permit Xxxx to
lawfully conduct and operate the business of the Division in the manner it
currently conducts and operates the business and to permit Xxxx to own and use
the assets of the Division in the manner in which it currently owns and uses
such assets.
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3.10. Real Property. Part 1.2(f) of the Disclosure Letter lists and
describes briefly all real property owned by Xxxx and used by the Division. With
respect to the Real Property:
(a) Xxxx has good and marketable title to the Real Property, free
and clear of any Encumbrance, easement, covenant, or other restriction,
except for Permitted Encumbrances and those matters permitted under (S)3.5
or shown as permitted exceptions on Part 3.10 of the Disclosure Letter;
(b) there are no pending or, to Dana's Knowledge, threatened
condemnation proceedings, law suits, or administrative actions relating to
the Real Property, or other matters affecting materially and adversely the
current use, occupancy, or value thereof;
(c) the legal description for the Real Property contained in the
deed thereof describes such parcel fully and adequately, the buildings and
improvements are located within the boundary lines of the described parcels
of land, are not in violation of applicable setback requirements, zoning
laws, and ordinances (and none of the properties or buildings or
improvements thereon are subject to "permitted non-conforming use" or
"permitted non-conforming structure" classifications), and do not encroach
on any easement which may burden the land and there have been no
significant improvements to the Real Property since August 31, 2000, the
date of the survey provided pursuant to Section 5.7;
(d) all facilities have received all approvals of governmental
authorities (including material licenses and permits) required in
connection with the ownership or operation thereof, and have been operated
and maintained in accordance with applicable laws, rules, and regulations
in all material respects;
(e) there are no leases, subleases, licenses, concessions, or other
agreements, written or oral, granting to any party or parties the right of
use or occupancy of any portion of the Real Property;
(f) there are no outstanding options or rights of first refusal to
purchase the Real Property, or any portion thereof or interest therein;
(g) there are no parties (other than the Division) in possession of
the Real Property; and
(h) the Real Property is not situated in a flood plain or flood
hazard area.
3.11. Intellectual Property.
(a) Xxxx has no patent rights (wherever filed, and including rights
to inventions conceived by employees of Xxxx who are engaged in the
operation of the business of the Division) or copy rights (whether or not
published, and including all rights in works of authorship) relating
primarily to the Division.
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(b) Intellectual Property Rights - The term "Intellectual
Property Rights" includes all right, title and interest of Xxxx in the
Trademarks and the Trade Secrets.
(c) Agreements - Part 3.11 of the Disclosure Letter contains a
complete and accurate list and summary description, including all royalties
paid or received by Xxxx, of all contracts relating to the Intellectual
Property Rights to which Xxxx is a party or by which Xxxx is bound, except
for any license implied by the sale of a product and perpetual, paid-up
licenses for commonly available software programs with a value of less than
$1,000 under which Xxxx is the licensee. There are no outstanding and, to
Dana's Knowledge, no threatened disputes or disagreements with respect to
any such contract.
(d) Know-How Necessary for the Business - The Intellectual
Property Rights are all those necessary for the operation of the business
of the Division. Xxxx is the owner of all right, title and interest in and
to each item of Intellectual Property Rights free and clear of all liens,
security interests, charges, encumbrances, equities and other adverse
claims, and has the right to use without payment to a third party all of
the Intellectual Property Rights.
(e) Trademarks.
(i) Part 3.11(e) of the Disclosure Letter contains a complete
and accurate list and summary description of all Trademarks, none of
which have been registered with the United States Patent and Trademark
Office. Xxxx is the owner of all right, title and interest in and to
each of the Trademarks, free and clear of all liens, security
interests, charges, encumbrances, equities and other adverse claims.
(ii) To Dana's Knowledge there is no potentially interfering
trademark or trademark application of any third party.
(iii) No Trademark is infringed or, to Dana's Knowledge has been
challenged or threatened in any way. None of the Trademarks used by
Xxxx in the business of the Division infringes or is alleged to
infringe any trade name, trademark or service xxxx of any third party.
(f) Trade Secrets.
(i) Xxxx has taken all reasonable precautions to protect the
secrecy, confidentiality and value of the Trade Secrets.
(ii) Xxxx has good title and an absolute (but not necessarily
exclusive) right to use the Trade Secrets. The Trade Secrets are not
part of the public knowledge or literature, and to Dana's Knowledge,
have not been used, divulged, or appropriated either for the benefit of
any Person (other than Xxxx) or to the detriment of Xxxx. No Trade
Secret is subject to any adverse
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claim or has been challenged or to the Knowledge of Xxxx threatened
in any way.
3.12. Tangible Assets. Except as disclosed in Part 3.12 of the Disclosure
Letter, the buildings, plants and structures of Xxxx related to the Division are
structurally sound and are in good operating condition and repair (normal wear
and tear excepted) and are adequate for the uses in which they are being put,
and none of such buildings, plants or structures is in need of repairs or
maintenance except for ordinary routine maintenance and repairs that are not
material in nature or costs. The buildings, plants, structures and equipment of
Xxxx related to the Division are sufficient for the conduct of the current
business of the Division and are adequately served by utilities. The equipment
of Xxxx related to the Division is in good operating condition and repair,
normal wear and tear excepted, and none of such equipment is in need of
maintenance or repairs except for ordinary, routine maintenance and repairs that
are not material in nature or cost.
3.13. Inventory. The inventory consists of raw materials and supplies,
manufactured and processed parts, work in process, and finished goods, all of
which is merchantable and fit for the purpose for which it was procured or
manufactured, consists of a quality and quantity usable and salable in the
ordinary course of business, and none of which is damaged or defective.
3.14. Warranty. Each product manufactured, sold, licensed or delivered,
and each service provided, by Xxxx through the Closing related to the Division
or its business has been in conformity in all material respects with all
applicable contractual commitments and applicable laws and all express and
implied warranties to customers. Under the historic warranty experience of Xxxx,
Xxxx has not been required, pursuant to GAAP, to create a reserve for product or
service warranty claims of the Division or its business except as set forth in
the Financial Statements. No product manufactured, sold, licensed, serviced or
delivered, or service provided, by Xxxx prior to Closing related to the Division
or its business is subject to any guaranty, warranty or other indemnity beyond
the applicable standard terms and conditions of sale, service or licensing. Part
3.14 of the Disclosure Letter sets forth the standard terms and conditions of
sale, service or license for Xxxx products and services of the Division
(including applicable guaranty, warranty and indemnity provisions). Part 3.14 of
the Disclosure Letter also sets forth a description of any product liability
claims asserted against Xxxx since January 1, 1998 related to the products or
services of the Division.
3.15. Contracts. (S)3.15 of the Disclosure Letter lists the following
contracts and other agreements relating to the Division to which Xxxx is a party
or which provide compensation or benefits to employees, former employees,
officers or directors of Xxxx related to the Division:
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(a) 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 $50,000 per annum;
(b) 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, or
involve consideration in excess of $100,000;
(c) any agreement concerning a partnership or joint venture;
(d) 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, in excess of $50,000;
(e) any agreement concerning confidentiality or noncompetition;
(f) any Employee Benefit Plan;
(g) any collective bargaining agreement;
(h) any agreement for the employment of any individual on a full-
time, part-time, consulting, or other basis or providing severance
benefits;
(i) any agreement under which it has advanced or loaned any amount to
any of the directors, officers, and employees of Xxxx or its Subsidiaries;
(j) any agreement under which the consequences of a default or
termination could have a material adverse effect on the business, financial
condition, operations, results of operations, or future prospects of the
Division; or
(k) any other agreement (or group of related agreements) the
performance of which involves consideration in excess of $50,000.
Xxxx has delivered to Buyer a correct and complete copy of each written
agreement listed in Part 3.15 of the Disclosure Letter (as amended, if any, to
date) and a written summary setting forth the material terms and conditions of
each oral agreement referred to in Part 3.15 of the Disclosure Letter. With
respect to each such agreement: (A) the agreement is legal, valid, binding,
enforceable, and in full force and effect; (B) no party 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, under
any material provision of the agreement; and (C) no party has repudiated any
material provision of the agreement.
3.16. Litigation.
(a) Except as set forth in Part 3.16 of the Disclosure Letter as
relates to the Division, there is no pending proceeding:
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(i) that has been commenced by or against Xxxx or any of the
assets of Xxxx and that relates to the Division; or
(ii) that challenges, or seeks to prevent any of the
transactions contemplated by this Agreement.
To the Knowledge of Xxxx, no such proceeding has been threatened. Xxxx has
delivered or made available to Buyer copies of all pleadings,
correspondence and other documents relating to each proceeding listed in
Part 3.16 of the Disclosure Letter.
(b) Except as set forth in Part 3.16 of the Disclosure Letter
as relates to the business of the Division:
(i) there is no order to which Xxxx, or any of its assets is
subject;
(ii) Xxxx is not subject to any order that relates to its
business, or any of the assets it owns or uses; and
(iii) To the Knowledge of Xxxx, no officer, director, agent or
employee of Xxxx is subject to any order that prohibits such
officer, director, agent or employee from engaging in or continuing
any conduct, activity or practice relating to the business of the
Division.
(c) Except as set forth in Part 3.16 of the Disclosure Letter:
(i) Xxxx is and at all times has been in compliance in all
material respects with all of the terms and requirements of each
order related to the business of the Division to which it, or any of
its assets, is or has been subject; and
(ii) Xxxx has not received at any time any notice or
communication from any governmental body or any other Person
regarding any actual or alleged violation of, or failure to comply
with, any material term or requirement of any order related to the
business of the Division to which Xxxx or any of its assets is or
has been subject which is outstanding or unresolved as of the date
hereof.
3.17. Employees.
(a) Part 3.17 of the Disclosure Letter contains a complete and
accurate list of the following information for each employee of Xxxx
related to the business of the Division, including each employee on leave
of absence or layoff status: name; job title; accrued vacation; date of
hire; and whether a participant in any Employee Benefit Plan.
(b) No employee of Xxxx related to the business of the Division
is a party to, or is otherwise bound by, any agreement, including any
confidentiality, noncompetition or proprietary rights agreement between
such employee and any
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other Person ("Proprietary Rights Agreement") that in any way adversely
affects or will affect (i) the performance of the employee's duties as an
employee of Xxxx, or (ii) the ability of Xxxx to conduct the business of
the Division. To Dana's Knowledge, except as disclosed in Part 3.17 of the
Disclosure Letter, no Key Employee intends to terminate his employment with
Xxxx.
(c) Part 3.17 of the Disclosure Letter also contains a complete and
accurate list of the following information for each retired hourly employee
of Xxxx related to the business of the Division, or their dependents,
receiving benefits or scheduled to receive benefits in the future: name;
pension benefit; pension option election; retiree medical insurance
coverage; retiree life insurance coverage; and other benefits.
3.18. Labor Relations; Compliance. Except for the Collective Bargaining
Agreement, since January 1, 1998, Xxxx has not been or is not a party to any
collective bargaining or other labor contract related to the business of the
Division. Except as disclosed in Part 3.18 of the Disclosure Letter, since
January 1, 1998, as relates to the business of the Division, there has not been,
there is not presently pending or existing, and to Dana's Knowledge there is not
threatened (a) any strike, slowdown, picketing, work stoppage, or employee
grievance process, (b) any proceeding against or affecting Xxxx relating to the
alleged violation of any legal requirement pertaining to labor relations or
employment matters, including any charge or complaint filed by an employee or
union with the National Labor Relations Board, the Equal Employment Opportunity
Commission, or any comparable body, organizational activity, or other labor or
employment dispute against or affecting Xxxx as relates to the Division, or (c)
any application for certification of a collective bargaining agent. There is no
lockout of any employees related to the business of the Division by Xxxx, and no
such action is contemplated by Xxxx. As relates to the business of the
Division, Xxxx has complied in all material respects with all legal requirements
relating to employment, equal employment opportunity, nondiscrimination,
immigration, wages, hours, benefits, collective bargaining, the payment of
social security and similar taxes, occupational safety and health, and plant
closing. Xxxx is not liable for the payment of any material compensation,
damages, taxes, fines, penalties, or other amounts, however designated, for any
failure to comply with any of the foregoing legal requirements.
3.19. Employee Benefits.
(a) Part 3.19 of the Disclosure Letter lists each Employee Benefit
Plan related to the Division that Xxxx maintains or to which Xxxx
contributes or has any obligation to contribute.
(b) Xxxx has delivered or made available to Buyer true copies of
the following documents currently in effect: (i) each collective bargaining
agreement covering any employee or former employee of the Division; (ii)
each Hourly Plan, summary plan description, IRS determination letter and
three most recent Forms
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5500 with respect to the Hourly Plans; (iii) any multi-employer plan as
defined by ERISA (S)3(37) covering any employee or former employee of the
Division ("Multi-Employer Plan") and to which Buyer will be obligated to
contribute after the Closing pursuant to any collective bargaining
agreement covering any Division employee to be hired by Buyer; (iv) a list
of all Employee Benefit Plans covering employees, former employees,
officers and directors of the Division and related summary plan
descriptions; (v) the most recent actuarial or financial valuation prepared
with respect to any Hourly Plan; and (vi) any employee handbook or
personnel manual describing compensation or benefits provided to Division
employees or former employees.
(c) Each Hourly Plan has been administered in all material respects
in accordance with its terms and is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other applicable laws
and there are no liabilities with respect to the Hourly Plans under the
Uniformed Services Employment and Reemployment Rights Act of 1994. There
are no investigations by any governmental agency, termination proceedings
or other claims (except claims for benefits payable in the normal operation
of the Hourly Plans), suits or proceedings against or involving any Hourly
Plan or asserting any rights or claims to benefits under any Hourly Plan
that could give rise to any material liability, and to the Knowledge of
Xxxx, there are not any facts that could give rise to any material
liability in the event of such investigation, claim, suit or proceeding.
(d) Each Hourly Plan that is an employee benefit pension plan as
defined in ERISA (S)3(2) ("Pension Plan"), has been the subject of
determination letters from the Internal Revenue Service to the effect that
such Pension Plans are qualified and exempt from federal income taxes under
Code (S)401(a) and (S)501(a) and no such determination letter has been
revoked nor has revocation been threatened, nor has any such Pension Plan
been amended since the date of its most recent determination letter or
application therefor in any respect that would adversely affect its
qualification or materially increase its costs. Xxxx is aware of no fact or
circumstance that would materially change the funded status of any such
Pension Plan other than any change resulting solely from a decrease in the
market value of the Pension Plans' assets due to the current state of the
United States public securities markets. The value of the assets of the
Pension Plans will equal or exceed the accumulated benefit obligations (for
FAS 87 purposes) on an ongoing basis determined on the Closing Date using
the actuarial assumptions (for FAS 87 purposes) used by the Pension Plans'
enrolled actuary in preparing the most recent actuarial valuation.
(e) Neither Xxxx nor any entity required to be treated with Xxxx as a
single employer under Code (S)414 has any material unsatisfied liability
under Title IV of ERISA. All contributions to and payments from the Pension
Plans that may have been required to be made in accordance with the plan
documents and, when applicable, ERISA (S)302 and Code (S)412, have been
timely made and there has
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been no application for a waiver, nor a waiver, of the minimum funding
standards imposed by Code (S)412 with respect to any pension plan. All such
contributions to and payments from the Hourly Plans, except those payments
to be made from a trust qualified under Code (S)401(a), for any period
ending prior to the Closing Date that are not yet, but will be, required to
be made, will be properly accrued and reflected in the books and records of
Xxxx and the Division at the Closing Date. To the Knowledge of Xxxx, no
trustee, fiduciary, employee or other person has engaged in a "prohibited
transaction" (as such term is defined in ERISA (S)406 or Code (S)4975), or
any other breach of fiduciary responsibility under ERISA with respect to
any Hourly Plan. Neither any of such plans nor any of such trusts have been
terminated, nor has there been any "reportable event" (as the term is
defined in ERISA (S)4043) with respect thereto during the last five years.
(f) With respect to any Hourly Plan that is an employee welfare
benefit plan: (i) no such Hourly Plan is unfunded or funded through a
welfare benefits fund (as such term is defined in Code (S)419(e)), (ii)
each such Hourly Plan that is a group health plan (as such term is defined
in Code (S)5000(b)(1)), complies with the applicable requirements of Code
(S)4980B(f), and (iii) each such Hourly Plan (including any such plan
covering retirees or other former employees) by its terms may be amended or
terminated without material liability to Buyer on or at any time after the
Closing Date, subject to the Collective Bargaining Agreement.
(g) Contributions and expenses accrued with respect to all Hourly
Plans are current and paid as of the Closing.
(h) The assumption by Buyer pursuant to (S)1.5 and (S)2.2 of the
Hourly Plan that is a defined benefit pension plan will not of itself cause
a partial termination of such plan requiring accelerated vesting of
affected participants.
(i) No liability has been or is expected to be incurred by Xxxx or
any Affiliate under or pursuant to ERISA or the Code, including penalties
and excise taxes that could, following the Closing, become or remain a
liability of the business being acquired by Buyer or become a liability of
Buyer or of any plans of Buyer and no event, transaction or condition has
occurred or exists that could result in any such liability to the business
of the Division or, following the Closing, to Buyer.
3.20. Guaranties. As relates to the Division, Xxxx is not a guarantor or
otherwise responsible for any liability or obligation (including indebtedness)
of any other Person.
3.21. Books and Records. The books and other records of Xxxx primarily
related to the Division, all of which have been made available to Buyer, since
January 1, 1998 are complete and correct in all material respects and have been
maintained in accordance with sound business practices, including the
maintenance of an adequate system of internal controls. At the Closing, all of
those books and records will be in the possession of the Division or delivered
to Buyer at the Closing as required by this Agreement.
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3.22. Taxes.
(a) Xxxx has timely filed all required Tax Returns relating to any
and all Taxes concerning or relating to the Division and such Tax Returns
are true and correct in all material respects and have been completed in
accordance with applicable law.
(b) Xxxx has timely paid all Taxes relating to the Division and has
set aside adequate reserves for any such Taxes that have accrued but are
not yet due and payable.
(c) There are (and immediately following the Closing Date there will
be) no liens, pledges, charges, claims, restriction on transfer, mortgages,
security interests or other encumbrances of any sort (collectively,
"Liens") on the assets of the Division relating to or attributable to Taxes
other than customary Liens for Taxes not yet due and payable.
(d) No audit or other examination of any Tax Return relating to the
Division is presently in progress nor has Xxxx been notified of any request
for such audit or other examination.
(e) There exists no Tax deficiency outstanding, assessed or proposed
against Xxxx relating to the Division except as disclosed in the Most
Recent Financial Statements or in Part 3.22 of the Disclosure Letter. All
Taxes relating to the business of the Division that Xxxx is or was required
by legal requirements to withhold or collect have been duly withheld or
collected and to the extent required, have been paid to the proper
governmental body or other Person.
3.23. No Material Adverse Change. Since December 31, 2000, there has not
been any material adverse change in the business, operations, properties, assets
or condition of Xxxx related to the Division, and no event has occurred or
circumstance exists that may result in such a material adverse change.
3.24. Environmental Matter. Except as set forth in Part 3.24 of the
Disclosure Letter:
(a) Xxxx is in full compliance with and is not in violation of or
liable under any Environmental, Health and Safety Requirements related to
the business of the Division. Xxxx does not have any basis to expect, nor
to Dana's Knowledge, has any other Person for whose conduct Xxxx is or may
be held to be responsible received, any order, communication or notice from
(i) any governmental body or private citizen acting in the public interest,
or (ii) the current or prior owner or operator of any real property, of any
actual or potential violation or failure to comply with any Environmental,
Health and Safety Requirements related to the business of the Division, or
of any actual of threatened obligation to undertake or bear the cost of any
Environmental, Health and Safety Liabilities with
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respect to any of the facilities or any other properties or assets (whether
real, personal or mixed) related to the business of the Division in which
Xxxx has held an interest, or with respect to any property or real property
at or to which Hazardous Materials were generated, manufactured, refined,
transferred, imported, used or processed by Xxxx related to the business of
the Division, or any other Person for whose conduct Xxxx is or may be held
responsible, or from which Hazardous Materials have been transported,
treated, stored, handled, transferred, disposed, recycled or received
related to the business of the Division.
(b) There are no pending or, to the Knowledge of Xxxx, threatened
claims, Encumbrances or other restrictions of any nature, resulting from
any Environmental, Health and Safety Liabilities or arising under or
pursuant to any Environmental, Health and Safety Requirements, with respect
to or affecting any of the facilities or any other properties and assets
(whether real, personal or mixed) in which Xxxx has or had an interest
related to the business of the Division.
(c) Xxxx does not have any basis to expect, nor to Dana's Knowledge,
has any other Person for whose conduct Xxxx is or may be held responsible
received, any citation, directive, inquiry, notice, order, summons, warning
or other communication that relates to Hazardous Activity, Hazardous
Materials or any alleged, actual or potential violation or failure to
comply with any Environmental, Health and Safety Requirements, or of any
alleged, actual or potential obligation to undertake or bear the cost of
any Environmental, Health and Safety Liabilities with respect to any of the
facilities or any other properties or assets (whether real, personal or
mixed) in which Xxxx has or had an interest related to the business of the
Division, or with respect to any property or facility to which Hazardous
Materials generated, manufactured, refined, transferred, imported, used or
processed by Xxxx, or any other Person for whose conduct Xxxx is or may be
held responsible, have been transported, treated, stored, handled,
transferred, disposed, recycled or received related to the business of the
Division.
(d) Neither Xxxx, nor any Person for whose conduct Xxxx is or may be
held responsible, has any Environmental, Health and Safety Liabilities with
respect to the facilities or with respect to any other properties and
assets (whether real, personal or mixed) in which Xxxx (or any predecessor)
has or had an interest related to the business of the Division, or to
Dana's Knowledge at any property geologically or hydrologically adjoining
the facilities or any such other property or assets.
(e) There are no Hazardous Materials present on, under or in the
Environment at the facilities or to Dana's Knowledge at the geologically or
hydrologically adjoining property, including any Hazardous Materials
contained in containers, barrels, above or underground storage tanks (or
otherwise the existence of any such tanks), landfills, land deposits,
dumps, equipment (whether moveable or fixed) or other containers, either
temporary or permanent, and
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deposited or located in land, water, sumps or any other part of the
facilities or such adjoining property, or incorporated into any structure
therein or thereon. Neither Xxxx, nor any Person for whose conduct Xxxx is
or may be held responsible, or to Dana's Knowledge any other Person, has
permitted or conducted, or is aware of any Hazardous Activity conducted
with respect to the facilities or any other properties or assets (whether
real, personal or mixed) related to the business of the Division in which
Xxxx has or had an interest except in full compliance with all applicable
Environmental, Health and Safety Requirements.
(f) There has been no Release or to the Knowledge of Xxxx, threat of
Release, of any Hazardous Materials at or from the facilities or at any
other locations where any Hazardous Materials were generated, manufactured,
refined, transferred, produced, imported, used or processed from or by any
of the facilities, or from or by any other properties and assets (whether
real, personal or mixed) related to the business of the Division in which
Xxxx has or had an interest, or to the Knowledge of Xxxx any geologically
or hydrologically adjoining property, whether by Xxxx or any other Person.
(g) Xxxx has delivered to Buyer true and complete copies and results
of any reports, studies, analyses, tests or monitoring possessed or
initiated by Xxxx pertaining to Hazardous Materials or Hazardous Activities
in, on or under the facilities, or concerning compliance by Xxxx, or any
other Person for whose conduct Xxxx is or may be held responsible with
Environmental, Health and Safety Requirements related to the business or
operation of the Division.
4. Representations and Warranties of Buyer.
Buyer represents and warrants to Xxxx that the statements contained in this (S)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
(S)4), except as set forth in the Disclosure Letter. The Disclosure Letter will
be arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in this (S)4.
4.1. Organization of Buyer. Buyer is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation.
4.2. Authorization of Transaction. Buyer has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. The execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of Buyer. This Agreement constitutes the valid and legally binding
obligation of Buyer, enforceable in accordance with its terms and conditions.
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4.3. Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in (S)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 Buyer is subject or any provision of its
charter or bylaws 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
Buyer is a party or by which it is bound or to which any of its assets is
subject. Buyer does not need to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any person including 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 (S)2 above).
4.4. Brokers' Fees. Buyer has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which Xxxx 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. Each of the Parties will use its reasonable commercial
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth in (S)7 below).
5.2. Notices and Consents. Xxxx will give any notices to third parties, and
Xxxx will use its reasonable commercial efforts to obtain any third party
consents, that Buyer reasonably may request in connection with the matters
referred to in (S)3.3 above. Each of the Parties will give any notices to, make
any filings with, and use its reasonable commercial efforts to obtain any
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in (S)3.3 and (S)4.3 above. Without
limiting the generality of the foregoing, each of the Parties will file any
Notification and Report Forms and related material that it may be required to
file with the Federal Trade Commission and the Antitrust Division of the United
States Department of Justice under HSR, will use its reasonable commercial
efforts to obtain a waiver from the applicable waiting period, and will make any
further filings pursuant thereto that may be necessary, proper, or advisable in
connection therewith.
5.3. Operation of Business. Except with the consent of Buyer, which must be
in writing, Xxxx shall carry on the business of the Division in the Ordinary
Course of
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Business and, to the extent consistent therewith, use its best efforts to
preserve intact the current business organizations, keep available the services
of the current employees and preserve the relationships with customers,
suppliers, licensors, licensees, distributors and others having business
dealings with it. Without limiting the generality of the foregoing, during the
period from the date of this Agreement to the Closing, as relating to the
Division, Xxxx shall not:
(a) acquire or agree to acquire any assets that are material,
individually or in the aggregate, to the Division, except purchases of
inventory in the Ordinary Course of Business consistent with past practice;
(b) (i) grant to any employee of the Division any increase in
compensation except as required by the Collective Bargaining Agreement,
(ii) grant to any employee of the Division any increase in severance or
termination pay, (iii) enter into any employment, consulting,
indemnification, severance or termination agreement with any such employee,
(iv) establish, adopt, enter into or amend in any material respect any
collective bargaining agreement or Benefit Plan, or (v) take any action to
accelerate any material rights or benefits, or make any material
determinations under any collective bargaining agreement or Benefit Plan,
except as otherwise required by applicable law or regulation;
(c) make any change in accounting methods, principles or practices
affecting the reported assets, liabilities or results of operations of the
Division;
(d) sell (except for sales of inventory in the Ordinary Course of
Business), lease, mortgage or otherwise encumber or subject to any
Encumbrance or otherwise dispose of any of the properties or assets of the
Division having a fair market value in excess of $25,000;
(e) incur any indebtedness for borrowed money or guarantee any such
indebtedness of another Person;
(f) make or agree to make any new capital expenditure or expenditures
which, in the aggregate, are in excess of $50,000;
(i) pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise), other
than those incurred in the Ordinary Course of Business consistent with past
practice, or waive the benefits of, or agree to modify in any manner, any
confidentiality, standstill or similar agreement; or
(j) authorize any of, or commit or agree to take any of, the
foregoing actions or take any action which would be prohibited by (S)3.7.
5.4. Full Access. Xxxx will permit (and will cause the Division to permit)
representatives of Buyer to have full access at all reasonable times, and in a
manner so as not to unreasonably interfere with the normal business operations
of the Division, to all premises, properties, personnel, books, records
(including tax records), contracts,
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and documents of or pertaining primarily to the Division. Buyer will treat and
hold as such any Confidential Information it receives from any of Xxxx and its
Subsidiaries in the course of the reviews contemplated by this (S)5.4, will not
use any of the Confidential Information except in connection with this
Agreement, and, if this Agreement is terminated for any reason whatsoever, will
return to Xxxx and its Subsidiaries all tangible embodiments (and all copies) of
the Confidential Information which are in its possession. The Parties will
cooperate with one another during due diligence and Buyer will have a reasonable
amount of time to review the due diligence material, even if this requires an
extension of the due diligence period (but only for such material, if any,
provided close to the end of what would otherwise be the end of the due
diligence period).
5.5. Notice of Developments. Each Party will give prompt written notice to
the other Party of any material adverse development causing a breach of any of
its own representations and warranties in (S)3 and (S)4 above. No disclosure by
any Party pursuant to this (S)5.5, however, shall be deemed to amend or
supplement the Disclosure Letter or to prevent or cure any misrepresentation,
breach of warranty, or breach of covenant.
5.6. Exclusivity. Until such time, if any, as this Agreement is terminated
pursuant to (S)9, Xxxx will not, and will cause each of its representatives not
to, directly or indirectly, solicit, initiate or encourage any inquiries or
proposals from, discuss or negotiate with, or provide any non-public information
to, any Person (other than Buyer) relating to any transaction involving the sale
of the business or the assets (other than in the Ordinary Course of Business) of
the Division, or any merger, consolidation, business combination or similar
transaction involving the change in control of the Division.
5.7. Title Insurance and Related Real Estate Matters. Within 14 days
following the date of this Agreement, Xxxx will obtain, with respect to the Real
Property, a title commitment for an ALTA Owner's Policy of Title Insurance Form
B-1987 (or equivalent policy reasonably acceptable to Buyer if the real property
is located in a state in which an ALTA Owner's Policy of Title Insurance Form B-
1987 is not available) issued by a title insurer reasonably satisfactory to
Buyer, in such amount as Buyer reasonably may determine to be the fair market
value of such real property (including all improvements located thereon),
insuring title to such real property to be in Buyer as of the Closing (subject
only to the title exceptions described above in (S)3.10 of this Agreement and
(S)3.10 of the Disclosure Letter). Each such title insurance policy shall (a)
insure title to the real property and all recorded easements benefiting such
real property, (b) contain an "extended coverage endorsement" insuring over the
general exceptions contained customarily in such policies, a "zoning
endorsement", (c) contain such other endorsements and terms as are customary and
reasonable in the circumstances, and (d) not contain the creditor's rights
exclusion. Xxxx shall pay the cost of the title search and Buyer shall pay the
additional cost required for the title insurance policy. Moreover, Xxxx will
provide an ALTA survey of the Real Property at Dana's cost within 14 days after
the date of this Agreement. At Closing, real estate taxes and assessments shall
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be prorated between Xxxx and Buyer with taxes assessed for periods preceding the
Closing to be paid by Xxxx.
5.8. Salaried Employees. Buyer shall endeavor to offer employment on
substantially similar terms to all salaried employees of the Division as of
Closing; however, Xxxx shall retain responsibility for all obligations, if any,
with respect to any salaried employee who does not accept an offer of employment
and Buyer shall have no obligation with respect thereto. Buyer does not assume
any employee retention agreements, but if Buyer offers employment to a Key
Employee and the Key Employee accepts, Buyer may not terminate that Key Employee
without cause during the one year period after Closing. In any event, the
extent of Buyer's liability for such a termination without cause is limited to
one year's salary (plus related payroll taxes) for that Key Employee. Buyer
shall inform Xxxx immediately of any change in its plans to offer employment to
all salaried employees should such change occur prior to closing. Buyer's
obligations in this (S)5.8 shall survive the Closing as specifically provided
herein. The offers of employment or decisions to make offers by Buyer under
this Section 5.8 shall be made in compliance with applicable federal and state
laws prohibiting discrimination on the basis of race, sex, disability and the
like.
5.9. Hourly Employees. Buyer shall assume the Collective Bargaining
Agreement throughout the remaining term as set forth in (S)2.2, and offer
employment on the terms specified in the Collective Bargaining Agreement to all
hourly employees of the business at the time of Closing. Xxxx shall timely, but
not necessarily before Closing, comply with and complete, any and all
obligations under the Collective Bargaining Agreement and will resolve any and
all grievances, arbitration, unfair labor practice charges, lawsuits and any
other legal proceedings related to the Collective Bargaining Agreement arising
out of events occurring prior to the Closing. Dana's obligations in this (S)5.9
shall survive the Closing as specifically provided herein.
5.10. Qualified Supplier. Dana's Xxxxxx Heavy Axle & Brake Division shall
make reasonable commercial efforts to add Buyer to any and all of its bidders'
lists that may exist from time-to-time for purposes of outsourcing forging and
machining work within Xxxx. In addition, Xxxx shall sponsor and facilitate the
introduction of Buyer's representatives with the appropriate people at each of
Dana's SBUs for the express purpose of giving Buyer the opportunity to become a
qualified supplier for each of the SBUs, but this in no way guarantees that
Buyer will receive additional business from Xxxx.
5.11. Class 37 Parts. By the time of Closing, Xxxx will have moved the
production of all Class 37 Spiders to another source and will have otherwise
terminated production of the Spiders at the Xxxxxx plant. Class 37 part numbers
include the following: 25971, 45472, 78910, 86778, 87894, 107371, 108141,
126002, 126152, 126260, 127358, 127577, 127782, 127835, 129598, 129772, 210572
and 830177R.
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6. Post-Closing Covenants.
The Parties agree as follows with respect to the period following the Closing.
6.1. General. If at any time after the Closing any further action is
necessary to carry out the purposes of this Agreement, each of the Parties shall
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 (S)8 below). Xxxx acknowledges and
agrees that from and after the Closing Buyer will be entitled to possession of
all documents, books, records (including tax records), agreements, and financial
data of any sort relating to the Division.
6.2. Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, 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, action, failure to act, or transaction on or prior
to the Closing Date involving the Division, the other Party shall cooperate with
the contesting or defending Party and its counsel in the contest or defense,
make available its personnel, and provide such testimony and access to its books
and records as 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 (S)8
below).
6.3. Transition. Xxxx xxx not take any action that is designed or intended
to have the effect of discouraging any lessor, licensor, customer, supplier, or
other business associate of the Division from maintaining the same business
relationships with the Division after the Closing as it maintained with the
Division prior to the Closing.
6.4. Confidentiality. Each Party shall treat and hold as such all of the
Confidential Information (with the exception of securities law related
disclosures), refrain from using any of the Confidential Information except in
connection with this Agreement, and deliver promptly to the disclosing Party or
destroy, at the request and option of the disclosing Party, all tangible
embodiments (and all copies) of the Confidential Information which are in its
possession. If the receiving Party 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 receiving Party shall notify the disclosing Party
promptly of the request or requirement so that the disclosing Party may seek an
appropriate protective order or waive compliance with the provisions of this
(S)6.4. If, in the absence of a protective order or the receipt of a waiver
hereunder, the receiving Party is, on the advice of counsel, compelled to
disclose any Confidential Information to any tribunal or else stand liable for
contempt, the receiving Party may disclose the Confidential Information to the
tribunal.
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Without limiting the generality of the foregoing, Buyer may not disclose or use
for its own benefit any information disclosed by Xxxx regarding its steel costs,
including but not limited to seeking discounts from steel suppliers.
6.5. Post-Closing Inventory Repurchase.
(a) At Buyer's election, Buyer may sell back to Xxxx any inventory
purchased by Buyer pursuant to this Agreement that remains unused on or
after January 1, 2002 at its book value as of Closing and with payment for
such inventory as of the date such inventory is repurchased. "Slow
Inventory" means any such inventory sold back to Xxxx.
(b) Buyer shall repurchase items of the Slow Inventory from Xxxx, as
needed from time-to-time to meet the new or replacement part requirements
of customers for which the items of Slow Inventory were originally
manufactured, prior to manufacturing any more of that part number for those
customers, for a period of 3 years after Closing. The repurchase price of
Slow Inventory repurchased by Buyer shall be its book value used in
computing the Purchase Price.
(c) Buyer shall semiannually provide Xxxx with sales information on
Slow Inventory repurchased under (S)6.5(b) for verification for a period of
3 years after Closing. The Parties shall work together to determine the
appropriate means for the storage and/or transfer of any Slow Inventory. If
Xxxx desires, Buyer shall store some or all of the Slow Inventory on-site
in Xxxxxx, without charge to Xxxx. If Xxxx requests security for this
inventory outside the ordinary course, Xxxx shall pay Buyer's incremental
out-of-pocket costs. Xxxx will obtain and pay the cost of any insurance for
the Slow Inventory in amounts and with such coverages as customary in the
industry. Buyer will not be held liable for the loss, damage or
deterioration of the inventory, which shall be the sole responsibility of
Xxxx.
6.6. Transition Services. Xxxx will provide for the continued use of the
existing Oracle enterprise resource planning system for a period of up to 12
months after Closing without charge. Buyer will reimburse Xxxx for any
incremental out-of-pocket costs incurred by Xxxx for any requested report
changes and/or other requests that are different from, or in addition to, the
services currently provided to the Division. At the time Dana converts to a new
version or release of Oracle, if Buyer desires to maintain use of this system,
Buyer shall pay all of Dana's incremental out-of-pocket costs in either
maintaining the Division on the current ERP release or upgrading to the new
version or release, at Buyer's option, and Xxxx will use best efforts to
cooperate fully with Buyer to transition the Division to a replacement ERP
system; provided, however, Buyer shall not be required to pay incremental out-
of-pocket costs of maintaining the Division on the current ERP release through
the period ending 12 months from the Closing Date. In addition, Buyer and Xxxx
will cooperate concerning the transfer of
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medical insurance coverage for employees who are represented by the collective
bargaining agreement.
6.7. Post-Closing Payments. Subject to the collection by Xxxx of the
accounts receivable outstanding as of the Closing Date, if Xxxx receives payment
from any customer relating to sales of the Division occurring after the Closing
Date, Xxxx shall forward such payment to Buyer to a bank of Buyer's choice as
soon as reasonably possible after clearance by Dana's banks.
6.8. Continuation Coverage. Xxxx shall timely provide any legally required
health care continuation coverage under any Employee Benefit Plan relating to
current and former employees of the Division.
6.9. Noncompetition.
(a) "Competing Activity" means to engage in forging or related
machining of heavy axle shafts and related gears and components, as more
fully described in the Supply Agreement attached herewith in the form of
Exhibit 7.1, within the United States, Canada or Mexico.
(b) "Xxxx Companies" means Xxxx, its Affiliates and any other
entity in which Xxxx, directly or indirectly, exercises effective
management control.
(c) During the term of the Supply Agreement, Xxxx shall not engage
in a Competing Activity, and shall cause the Xxxx Companies to refrain from
so engaging.
(d) Notwithstanding the foregoing:
(i) such provisions shall not restrict in any form or manner the
internal operation of any other forging or related machining operations
of Xxxx as in effect as of the Closing Date which shall be deemed to
include all Class 37 parts.
(ii) such provisions shall not be applicable to any person, assets
or business acquired by Xxxx after the Closing Date to the extent such
person, assets or business were (A) engaged in such forging or related
machining operations as of the effective time of such acquisition, and
(B) not its principal line of business and the revenue and assets
represent no more than 25% of the purchased company's overall business.
(iii) should Xxxx acquire a business which engages in a Competing
Activity in conflict with the provisions of this (S)6.9, Xxxx shall
promptly notify Buyer of the acquisition and shall exercise reasonable
commercial efforts to divest itself of the portion of the acquired
business engaged in the Competing Activity within a reasonable period of
time.
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(e) Xxxx acknowledges that Buyer may not have an adequate remedy at
law in the event of violation of this (S)6.9. Therefore, Buyer may be
entitled to injunctive relief and/or specific performance, in addition to
whatever remedies it may have, at law or in equity, against Xxxx under this
(S)6.9.
6.10. Non-Solicitation. For the period during which the Supply Agreement is
in effect, neither Xxxx nor any of its Affiliates shall directly or indirectly
solicit any then-current employee of Buyer or the Division (with respect to the
Division, employed by Xxxx prior to the Closing Date who accepts employment with
Buyer) nor shall Xxxx or any of its Affiliates encourage any such employee to
terminate his or her employment with Buyer or the Division; provided, however,
that such limitation shall not include generalized searches for employees
through media advertisements that are not focused on persons employed by Buyer
or the Division.
6.11. Medical Benefits. Xxxx shall be responsible for claims for medical
benefits incurred before the Closing Date and that are payable under the terms
of the Hourly Plans. A claim for benefits is incurred for this purpose when the
service is provided.
6.12. Bulk Sales. Xxxx shall take all steps, if any, as may be required to
comply with any applicable bulk sale or bulk transfer act, or indemnify Buyer as
provided in Section 8.2 hereof.
6.13. WARN Act. Xxxx shall be responsible for providing any notice required
by the Worker Adjustment and Retraining Notification Act of 1988, as amended
(the "WARN Act") or any comparable state or local statutes, rules or regulations
as a result of the actions of Xxxx.
6.14. REIMBURSEMENT. With respect to any hourly employee on long term
disability leave or personal medical leave as of Closing (and while such leave
continues) or who is retired as of the Closing, Buyer shall include such hourly
employee with the coverage provided under the Hourly Plans for all coverage
required under the Collective Bargaining Agreement, including in a separate
insurance or coverage group from Buyer's other employees if permitted under the
Collective Bargaining Agreement, and Xxxx shall reimburse Buyer for the costs of
such non-pension coverage until the earlier of the date on which (i) there
ceases to be a collective bargaining agreement between Buyer and Local 1667 of
the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, or any successor agreement or union covering such
employees, which provides for such coverage, or (ii) as to any such employee on
leave, when such employee returns to active employment with Buyer.
Notwithstanding the foregoing, in the event that Xxxx determines that it can
maintain coverage of the retiree medical obligations without violation of the
Collective Bargaining Agreement it may elect to satisfy its obligations under
this Section 6.14 with respect to such persons by doing so.
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7. Conditions to Obligation to Close.
7.1. Conditions to Obligation of Buyer. The obligation of Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in (S)3 above shall
be true and correct in all material respects at and as of the Closing Date;
(b) Xxxx shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
(c) Xxxx shall have procured all of the third party consents
specified in (S)5.2 above and the title insurance commitment specified in
(S)5.7 above;
(d) no action, suit, or proceeding shall be pending before any court
or quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (i) 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
Buyer to own the Acquired Assets, and to operate the former businesses of
the Division (and no such injunction, judgment, order, decree, ruling, or
charge shall be in effect);
(e) Xxxx shall have delivered to Buyer a certificate to the effect
that each of the conditions specified above in (S)7.1(a)-(d) is satisfied
in all respects;
(f) Xxxx and Buyer shall have received all authorizations, consents,
and approvals of governments and governmental agencies referred to in
(S)3.3 and (S)4.3 above, if so required;
(g) the Parties shall have entered into a Supply Agreement in form
and substance as set forth in Exhibit 7.1 and the same shall be in full
force and effect;
(h) all actions to be taken by Xxxx in connection with consummation
of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance
to Buyer;
(i) there shall not have occurred any material adverse change in the
business, operations or prospects of the Division nor any destruction or
significant damage to any material asset of the Division;
(j) Buyer shall have completed its due diligence review of the
Division, the results of which must be satisfactory to Buyer in Buyer's
sole discretion (which review shall encompass, without limitation, the
ability (including the ability under the Collective Bargaining Agreement)
of Buyer to obtain the separate insurance or coverage contemplated by
Section 6.14); provided, however, if Buyer has not
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completed this review within 30 days of the date of this Agreement, or such
later date to which the Parties agree, or Buyer has not duly invoked this
condition, then Buyer shall be deemed to have waived this condition;
(k) Buyer shall have completed its environmental review of the
Division, the results of which must be satisfactory to Buyer in Buyer's
sole discretion; provided, however, if Buyer has not completed this review
within 35 days of the date of this Agreement, or Buyer has not duly invoked
this condition, then Buyer shall be deemed to have waived this condition;
(l) Buyer shall have obtained such evidence or information as shall
be satisfactory to it, in its sole discretion, that as of the Closing, book
value of the inventory, net of reserves, of the Division is at least
$7,000,000 including the value of inventory specifically associated with
the Class 37 family of parts to be retained by Xxxx;
(m) Buyer shall have obtained such evidence or information as shall
be satisfactory to it, in its sole discretion, that, with respect to the
Xxxx Corporation Pension Plan for Hourly-Rate Employees of the Xxxxxx Heavy
Axle and Brake Division - Xxxxxx assumed by Buyer, the plan assets at a
minimum equal plan liabilities as of the Closing, determined on a
termination basis; and
(n) On or before 21 days after the date of this Agreement, Xxxx shall
deliver to Buyer the Disclosure Letter contemplated by this Agreement, the
contents of which must be acceptable to Buyer, in its sole discretion.
Buyer may waive any condition specified in this (S)7.1 if it executes a
writing so stating at or prior to the Closing.
7.2. Conditions to Obligation of Xxxx. The obligation of Xxxx to consummate
the transactions to be performed by it in connection with the Closing is subject
to satisfaction of the following conditions:
(a) the representations and warranties set forth in (S)4 above shall
be true and correct in all material respects at and as of the Closing Date;
(b) Buyer shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending before any court
or quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, 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 injunction, judgment, order,
decree, ruling, or charge shall be in effect);
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(d) Buyer shall have delivered to Xxxx a certificate to the effect
that each of the conditions specified above in (S)7.2(a)-(c) is satisfied
in all respects;
(e) Xxxx and Buyer shall have received all material authorizations,
consents, and approvals of governments and governmental agencies referred
to in (S)3.3 and (S)4.3 above, if required;
(f) the Parties and Buyer shall have entered into a Supply Agreement
in form and substance as set forth in Exhibit 7.1 and the same shall be in
full force and effect; and
(g) all actions to be taken by Buyer in connection with consummation
of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance
to Xxxx.
Xxxx xxx waive any condition specified in this (S)7.2 if it executes a writing
so stating at or prior to the Closing.
8. Remedies for Breaches of This Agreement.
8.1. Survival of Representations and Warranties. All of the representations
and warranties of the Parties shall survive the Closing (even if the damaged
Party knew or had reason to know of any misrepresentation or breach of warranty
at the time of Closing) and continue in full force and effect for a period of
two years thereafter, except for tax and environmental claims, which are dealt
with specifically in (S)8.4 and (S)8.5 below, respectively.
8.2. Indemnification Provisions for Benefit of Buyer.
(a) If Xxxx breaches any of its representations, warranties, and
covenants contained in this Agreement, and if there is an applicable
survival period pursuant to (S)8.1 above, provided that Buyer makes a
written claim for indemnification against Xxxx pursuant to (S)10.7 below
within such survival period, then Xxxx shall indemnify Buyer from and
against the entirety of any Adverse Consequences Buyer may suffer through
and after the date of the claim for indemnification (including any Adverse
Consequences Buyer may suffer after the end of any applicable survival
period) resulting from, arising out of, relating to, in the nature of, or
caused by the breach; provided, however, that (i) Xxxx has no obligation to
indemnify Buyer from and against any Adverse Consequences resulting from,
arising out of, relating to, in the nature of, or caused by the breach of
any representation or warranty of Xxxx until Buyer has suffered Adverse
Consequences by reason of all such breaches in excess of a $100,000
aggregate deductible (after which point Xxxx will be obligated only to
indemnify Buyer from and against further such Adverse Consequences) and
(ii) there will be a ceiling in the amount of the Purchase Price on the
obligation of Xxxx to indemnify Buyer
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from and against Adverse Consequences resulting from, arising out of,
relating to, in the nature of, or caused by breaches of the representations
and warranties of Xxxx.
(b) Xxxx shall indemnify Buyer from and against the entirety of any
Adverse Consequences Buyer may suffer resulting from, arising out of,
relating to, in the nature of, or caused by any liability of Xxxx which is
not an Assumed Liability (including any liability of Xxxx that becomes a
liability of Buyer under any bulk transfer law of any jurisdiction, under any
common law doctrine of de facto merger or successor liability, or otherwise
by operation of law).
8.3. Indemnification Provisions for Benefit of Xxxx.
(a) If Buyer breaches any of its representations, warranties, and
covenants contained in this Agreement, and if there is an applicable survival
period pursuant to (S)8.1 above, provided that Xxxx makes a written claim for
indemnification against Buyer pursuant to (S)10.7 below within such survival
period, then Buyer shall indemnify Xxxx from and against the entirety of any
Adverse Consequences Xxxx xxx suffer through and after the date of the claim
for indemnification (including any Adverse Consequences Xxxx xxx suffer after
the end of any applicable survival period) resulting from, arising out of,
relating to, in the nature of, or caused by the breach; provided, however,
that (i) Buyer has no obligation to indemnify Xxxx from and against any
Adverse Consequences resulting from, arising out of, relating to, in the
nature of, or caused by the breach of any representation or warranty of Buyer
until Xxxx has suffered Adverse Consequences by reason of all such breaches
in excess of a $100,000 aggregate deductible (after which point Buyer will be
obligated only to indemnify Xxxx from and against further such Adverse
Consequences) and (ii) there will be a ceiling in the amount of the Purchase
Price on the obligation of Buyer to indemnify Xxxx from and against Adverse
Consequences resulting from, arising out of, relating to, in the nature of,
or caused by breaches of the representations and warranties of Buyer.
(b) Buyer shall indemnify Xxxx from and against the entirety of any
Adverse Consequences Xxxx xxx suffer resulting from, arising out of, relating
to, in the nature of, or caused by any Assumed Liability.
8.4. Tax Indemnification. Notwithstanding the foregoing, for matters
relating to Taxes, (a) the survival period described in (S)8.1 shall last for
the period of the relevant statute of limitations for assessment; and (b) the
deductible and ceiling described in (S)8.2(a) shall not apply.
8.5. Environmental Matters.
(a) Indemnification by Xxxx.
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(i) Xxxx hereby agrees that its shall indemnify, defend and
hold harmless Buyer, its Affiliates and if applicable, their respective
directors, officers, shareholders, partners, employees, representatives and
agents and their heirs, successors and assigns from, against and in respect
of any actual damages, claims, liabilities, losses, charges, assessments,
settlements, judgments, actions, suits, proceedings, deficiencies, taxes,
interest (on amounts expended by Buyer for which it is entitled to be
indemnified hereunder other than in the case of third-party claims,
calculated using the "prime commercial lending rate" of XX Xxxxxx Chase or
any successor thereto), penalties, and reasonable costs and expenses
(including, without limitation, reasonable attorney's fees, removal costs,
remediation costs, closure costs, capital operating and maintenance costs,
compliance costs, disposal costs, fines, penalties and expenses of
investigation, testing and ongoing monitoring) ("Losses") imposed on,
sustained, incurred or suffered by or asserted against Buyer, directly or
indirectly, relating to or arising out of, subject to the provisions of
(S)8.5(d), any Pre-Closing Environmental Liability of which Xxxx has been
notified by December 31, 2002.
(ii) The indemnity in (S)8.5(a)(i) shall expire on and shall not
survive after December 31, 2002, and the deductible and ceiling described
in (S)8.2(a) shall not apply; provided, however, that such indemnity shall
survive and continue in full force and effect as to all claims
indemnifiable thereunder for which Buyer has provided Xxxx with notice on
or before such date.
(b) Characterization of Indemnification Payments. All amounts
paid by Xxxx and Buyer, as the case may be, under this (S)8.5 shall be treated
as adjustments to the Purchase Price for Tax purposes.
(c) Computation of Losses Subject to Indemnification. The
amount of any Loss for which indemnification is provided under this (S)8.5 shall
be computed net of any insurance proceeds recovered by Buyer in connection with
such Loss.
(d) Pre-Closing Environmental Liabilities.
(i) In connection with any and all Pre-Closing Environmental
Liabilities, Xxxx shall have the right to conduct and retain exclusive
control over any Remedial Action, correction of noncompliance or other
action, including, without limitation, the exclusive right to (A) conduct
and obtain any tests, reports, surveys and investigations, (B) contact,
negotiate or otherwise deal with Governmental Entities, (C) prepare any
plan for Remedial Action, correction of noncompliance or other action, and
(D) conduct or direct any such Remedial Action, correction of noncompliance
or other action, provided that with respect to any Pre-Closing
Environmental Liabilities for which Xxxx is required to indemnify Buyer
pursuant to (S)8.5(a), Xxxx shall use reasonable efforts to consult with
Buyer in good faith prior to conducting any such Remedial Action,
correction of noncompliance or other action and shall conduct itself as
would a prudent business person complying with applicable environmental
law.
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(ii) Notwithstanding the foregoing, Xxxx and Buyer agree that
Xxxx shall have no obligation to indemnify Buyer for Pre-Closing
Environmental Liabilities pursuant to (S)8.5(a) unless the Remedial Action,
correction of noncompliance or such other action in connection with such
Pre-Closing Environmental Liability was undertaken as a result of (A) any
violation of Environmental Law, (B) the presence of Hazardous Substances in
the real property of the Division at levels in excess of any applicable
levels or standards set forth, established, published, proposed or
promulgated under, pursuant to or by any Environmental Law or Government
Entity having jurisdiction over such Remedial Action, correction of
noncompliance or action ("Trigger Standards"), provided that to the extent
there are no such Trigger Standards, the standards contained in EPA Region
III Risk-Based Concentration Table shall be the applicable Trigger
Standards, (C) any requirement or order of any Governmental Entity based
upon any Environmental Law, or (D) any imminent and substantial
endangerment to human health and safety.
(iii) Xxxx and Buyer agree that any Remedial Action, correction
of noncompliance or other action to be undertaken (A) shall be the most
reasonable cost-effective method under the circumstances and based upon the
assumption that the real property of the Division is and will continue to
be used for industrial (as opposed to residential) purposes, (B) shall not
exceed [x] the least stringent requirements of any applicable Environmental
Law or any clean-up standards set forth, established, published, proposed
or promulgated under, pursuant to or by any Environmental Law or
Governmental Entity having jurisdiction over such Remedial Action,
correction of noncompliance or other action, or [y] any requirement or
order of any Governmental Entity having jurisdiction over such Remedial
Action, correction of noncompliance or action, and (C) shall be conducted
in compliance in all material respects with all Environmental Laws. To the
extent necessary to achieve the purposes set forth in (S)8.5(d)(iii)(A),
Buyer shall agree to a deed restriction on the property that is subject to
such Remedial Action.
(iv) Buyer agrees that it shall not solicit or importune any
Governmental Entity to require any Remedial Action, correction of
noncompliance or other actions unless (A) required by Environmental Law,
Governmental Entity, court order or third party settlement agreement, (B)
such Environmental Law or Trigger Standards have been violated or exceeded,
or (C) in Buyer's reasonable good faith judgment, in order to protect human
health and safety from any substantial and imminent endangerment.
(v) Within thirty (30) days after the receipt thereof (but in
December 2002 Buyer shall use best efforts to notify Xxxx as soon as
possible) Buyer shall notify Xxxx of any condition which may be subject to
indemnity pursuant to (S)8.5(a) upon receipt of any written document
concerning such matter. Buyer
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shall notify Xxxx of any release of Hazardous Substances or conditions
which Buyer believes may adversely impact a Remedial Action or any other
action after such matter comes to Buyer's attention; provided that failure
to notify Xxxx as provided in this subsection shall not prejudice the
rights of Buyer hereunder except to the extent any additional harm is
suffered by Xxxx as a result of such delay.
(vi) Xxxx and Buyer mutually agree to cooperate in connection
with any Pre-Closing Environmental Liabilities subject to indemnification
under this (S)8.5. Upon request, Buyer shall provide Xxxx, including,
without limitation, its agents, representatives and contractors,
unrestricted access (subject to the requirement not to unreasonably disrupt
the business or operations of Buyer) to the property of the Division for
the purpose of conducting any activity pursuant to this Article including,
without limitation, Remedial Actions and corrections of noncompliance. Xxxx
and Buyer each agree that they shall maintain in strict confidence any
information concerning any Pre-Closing Environmental Liabilities other than
any disclosure required by applicable securities laws. If any law requires
any party to disclose such information, such party will promptly notify the
other party and will give such other party the opportunity to review and
comment in advance upon the content and timing of any such disclosure.
Buyer shall submit any reimbursement requests for which Buyer is seeking
indemnification pursuant to (S)8.5(a) to Xxxx and, as promptly as
practicable after receipt of such reimbursement requests, Xxxx shall pay
such reimbursement requests.
(e) Investigation Costs. Buyer shall have the unrestricted right to
initiate and control the conduct of and shall pay for the environmental
investigations of the real property of the Division purchased by Buyer pursuant
to this Agreement that Buyer may undertake after the Closing Date. Under the
Buyer's reasonable direction, Xxxx will complete any post-closing remediation
plan development and implementation to insure that any and all issues are
adequately addressed. Buyer shall be entitled to audit Dana's remediation plan
development and implementation, if any. Xxxx shall reimburse Buyer for the costs
associated with environmental issues as follows:
(i) Xxxx shall reimburse Buyer for those investigative costs,
including pre-closing environmental due diligence expenses incurred by
Buyer to the extent that Xxxx xxx have the right to be reimbursed by Xxxxx
Corporation pursuant to the 1997 Asset Purchase Agreement between Xxxxx
Corporation and Xxxx Corporation, irrespective of whether Xxxxx Corporation
actually reimburses Xxxx;
(ii) Dana shall reimburse Buyer for all post-closing expenses
incurred by Buyer in the environmental discovery process, remediation
plan development and implementation to the extent Dana is entitled to
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reimbursement by Xxxxx Corporation, regardless of whether Xxxxx Corporation
actually reimburses Xxxx;
(iii) Dana shall reimburse Buyer for 100% of all post-closing
expenses incurred by it in the environmental discovery process to the extent
Xxxx is not entitled to reimbursement by Eaton up to a maximum of $125,000;
and
(iv) Xxxx shall reimburse Buyer for 50% of all post-closing
expenses incurred by it in the environmental discovery process in excess of
$125,000 to the extent Xxxx is not entitled to reimbursement by Eaton up to
a maximum of $62,500, or an aggregate liability of $187,500 under
(S)8.5(e)(iii) and (S)8.5(e)(iv).
The contractual relationship shall be between Xxxx and Buyer and Buyer will not
be required to look to or otherwise be dependent upon Xxxxx Corporation in any
manner whatsoever for the reimbursement of its expenses incurred under this
(S)8.5.
8.6. Matters Involving Third Parties.
(a) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give rise
to a claim for indemnification against the other Party (the "Indemnifying
Party") under this (S)8, then the Indemnified Party shall promptly notify the
Indemnifying Party thereof in writing; provided, however, that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party shall
relieve the Indemnifying Party from any obligation hereunder unless (and then
solely to the extent) the Indemnifying Party thereby is prejudiced.
(b) The Indemnifying Party will have the right to assume the defense
of the Third Party Claim with counsel of its choice reasonably satisfactory to
the Indemnified Party at any time within 15 days after the Indemnified Party
has given notice of the Third Party Claim; provided, however, that the
Indemnified Party may retain separate co-counsel at its sole cost and expense
and participate in the defense of the Third Party Claim.
(c) So long as the Indemnifying Party has assumed and is conducting
the defense of the Third Party Claim in accordance with (S)8.6(b) above, (i)
the Indemnifying Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the prior
written consent of the Indemnified Party (not to be withheld unreasonably)
unless the judgment or proposed settlement involves only the payment of money
damages by the Indemnifying Party and does not impose an injunction or other
equitable relief upon the Indemnified Party and (ii) the Indemnified Party
will not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent of the
Indemnifying Party (not to be withheld unreasonably).
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(d) If the Indemnifying Party does not assume and conduct the defense
of the Third Party Claim in accordance with (S)8.6(b) above, however, (i) the
Indemnified Party may defend against, and consent to the entry of any judgment
or enter into any settlement with respect to, the Third Party Claim in any
manner it reasonably may deem appropriate (and the Indemnified Party need not
consult with, or obtain any consent from, the Indemnifying Party in connection
therewith) and (ii) the Indemnifying Party will remain responsible for any
Adverse Consequences the Indemnified Party may suffer resulting from, arising
out of, relating to, in the nature of, or caused by the Third Party Claim to
the fullest extent provided in this (S)8.
8.7. Exclusive Remedy. Buyer and Xxxx acknowledge and agree that the
foregoing indemnification provisions in this (S)8 shall be the exclusive remedy
of Buyer and Xxxx with respect to the Division and the transactions contemplated
by this Agreement. Without limiting the generality of the foregoing, Buyer and
Xxxx hereby waive any statutory, equitable, or common law rights or remedies
relating to any environmental matters, including without limitation any such
matters arising under any Environmental, Health, and Safety Requirements and
including without limitation any arising under the Comprehensive Environmental
Response, Compensation, and Liability Act ("CERCLA").
9. Termination.
9.1. Termination of Agreement. Certain of the Parties may terminate this
Agreement as provided below:
(a) Buyer and Xxxx xxx terminate this Agreement by mutual
written consent at any time prior to the Closing;
(b) Buyer may terminate this Agreement by giving written notice
to Xxxx:
(i) no later than 30 days after the date of this Agreement, or
such later date to which the Parties agree, if Buyer is not satisfied
with the results of its due diligence investigation, in its sole
discretion;
(ii) no later than 35 days after the date of this Agreement, if
Buyer is not satisfied with the results of its environmental review, in
its sole discretion;
(iii) at any time prior to the Closing, if Xxxx has breached any
representation, warranty, or covenant contained in this Agreement in any
material respect, Buyer has notified Xxxx of the breach, and the breach
has continued without cure for a period of 30 days after the notice of
breach; and
(iv) at any time on or after May 31, 2001, if Closing has not
occurred (unless the failure results primarily from Buyer itself
breaching any representation, warranty, or covenant contained in this
Agreement).
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(c) Xxxx xxx terminate this Agreement by giving written notice to
Buyer at any time prior to the Closing (i) if Buyer has breached any
representation, warranty, or covenant contained in this Agreement in any
material respect, Xxxx has notified Buyer of the breach, and the breach has
continued without cure for a period of 30 days after the notice of breach
or (ii) if the Closing shall not have occurred on or before May 31, 2001
(unless the failure results primarily from Xxxx itself breaching any
representation, warranty, or covenant contained in this Agreement).
9.2. Effect of Termination. If any Party terminates this Agreement pursuant
to (S)9.1 above, all rights and obligations of the Parties hereunder shall
terminate without any liability of any Party to the other Party (except for any
liability of any Party then in breach); provided, however, that the
confidentiality provisions contained in (S)6.4 above shall survive termination.
10. Miscellaneous.
10.1. Press Releases and Public Announcements. No Party may issue any press
release or public announcement relating to the subject matter of this Agreement
without the prior written approval of the other Party; provided, however, that
any Party may make any public disclosure it believes in good faith is required
by applicable law or any listing or trading agreement concerning its publicly-
traded securities (in which case the disclosing Party must use reasonable
commercial efforts to advise the other Party prior to making the disclosure).
10.2. No Third-Party Beneficiaries. This Agreement does not confer any rights
or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
10.3. Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
10.4. Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein 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 Party; provided, however, that Buyer may (i) assign any or all of
its rights and interests hereunder 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 Buyer nonetheless shall remain responsible for the
performance of all of its obligations hereunder).
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10.5. Counterparts. This Agreement may be executed in one or more
counterparts, each of which is an original but all of which together constitute
one and the same instrument.
10.6. Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.7. Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
To Xxxx: Copy to:
Xxxx Corporation Xxxx Corporation
Attn: Controller, Heavy Truck SBU Attn: General Counsel
0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx
Xxxxxx, Xxxx 00000-0000 Xxxxxx, Xxxx 00000-0000
To Buyer: Copy to:
Tube Turns Technologies, Inc. Xxxxx, Tarrant & Xxxxx, LLP
Attn: President and CEO Attn: Xxxxxx X. Xxxxx
0000 Xxxx Xxxxxxxx PNC Plaza, 28/th/ Floor
Louisville, Kentucky 40211 Xxxxxxxxxx, Xxxxxxxx 00000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
10.8. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Ohio without giving effect to
any choice or conflict of law provision or rule (whether of the State of Ohio or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Ohio.
10.9. Amendments and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by Buyer and Xxxx.
No waiver by any Party of any default, misrepresentation, or breach of warranty
-48-
or covenant hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
10.10. Expenses. Each of Buyer and Xxxx will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby. Xxxx will pay any sales, use or
transfer tax associated with the completion of this transaction.
10.11. Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" means including without limitation.
10.12. Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
-49-
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date
first written above.
TUBE TURNS TECHNOLOGIES, INC. XXXX CORPORATION
/s/ X. X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
------------------------------ ---------------------
Signature Signature
X. X. Xxxxxx Xxxxxx X. Xxxxxxx
------------------------------ ---------------------
Printed Name Printed Name
President & CEO SBU Controller
------------------------------ ---------------------
Title Title
-50-
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "First
Amendment") is made and entered into as of May 4, 2001 by and between TUBE TURNS
TECHNOLOGIES, INC., a Kentucky corporation ("Buyer") and XXXX CORPORATION, a
Virginia corporation ("Xxxx").
RECITALS
A. Buyer and Xxxx are parties to an Asset Purchase Agreement dated as
of April 6, 2001 (the "Agreement").
B. Buyer and Xxxx desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Amendments.
A. Section 7.1 (j) of the Agreement is amended to read in its
entirety as follows:
(j) Buyer shall have completed its due diligence review of the
Division, the results of which must be satisfactory to Buyer in Buyer's sole
discretion (which review shall encompass, without limitation, the ability
(including the ability under the Collective Bargaining Agreement) of Buyer to
obtain the separate insurance or coverage contemplated by Section 6.14);
provided, however, if Buyer has not completed this review by May 15, 2001, or
such later date to which the Parties agree, or Buyer has not duly invoked this
condition, then Buyer shall be deemed to have waived this condition;
B. Section 7.1 (k) of the Agreement is amended to read in its
entirety as follows:
(k) Buyer shall have completed its environmental review of the
Division, the results of which must be satisfactory to Buyer in Buyer's sole
discretion; provided, however, if Buyer has not completed this review by May 15,
2001, or Buyer has not duty invoked this condition, then Buyer shall be deemed
to have waived this condition.
C. Section 9.1 (b) (i) of the Agreement is amended to read in its
entirety as follows:
(i) no later than May 15, 2001, or such later date to which the
Parties agree, if Buyer is not satisfied with the results of its due diligence
investigation, in its sole discretion;
D. Section 9.1 (b) (ii) of the Agreement is amended to read in its
entirety as follows:
(ii) no later than May 15, 2001, if Buyer is not satisfied with the
results of its environmental review, in its sole discretion;
2. Ratification. Buyer and Xxxx hereby reaffirm and ratify the
Agreement, as amended by this First Amendment.
3. Governing Law. This First Amendment shall be governed by the laws
of Ohio.
2
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date first written above.
TUBE TURNS TECHNOLOGIES, INC. XXXX CORPORATION
By: /s/ X. X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------- ------------------------
Title President & CEO Title SBU Controller
----------------------- ----------------------
3
SECOND AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Second
Amendment") is made and entered into as of May 15, 2001 by and between TUBE
TURNS TECHNOLOGIES, INC., a Kentucky corporation ("Buyer") and XXXX CORPORATION,
a Virginia corporation ("Xxxx").
RECITALS
A. Buyer and Xxxx are parties to an Asset Purchase Agreement dated as
of April 6, 2001, as amended by a First Amendment to Asset Purchase Agreement
dated as of May 4, 2001 (collectively, the "Agreement").
B. Buyer and Xxxx desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Amendments.
A Section 7.1 (j) of the Agreement is amended to read in its entirety
as follows:
(j) Buyer shall have completed its due diligence review of the
Division, the results of which must be satisfactory to Buyer in Buyer's sole
discretion (which review shall encompass, without limitation, the ability
(including the ability under the Collective Bargaining Agreement) of Buyer to
obtain the separate insurance or coverage contemplated by Section 6.14);
provided, however, if Buyer has not completed this review by May 31, 2001 as to
[i] the list of plan participants in the Xxxx Corporation Pension Plan for
Hourly-Rate Employees of the Xxxxxx Heavy Axle and Brake Division - Xxxxxx, [ii]
the ability (including the ability under the Collective Bargaining Agreement) of
Buyer to obtain the separate insurance or coverage contemplated by Section 6.14
or, alternatively, the receipt of evidence satisfactory to Buyer that Xxxx shall
retain and provide such coverage, [iii] the Disclosure Letter, [iv] the
transition services to be provided by Xxxx to Buyer, [v] the exhibits to the
Supply Agreement, and [vi] the accounting for inventory by Xxxx (collectively,
the "Extended Due Diligence Items"), or May 15, 2001 as to other matters, or
such later date to which the Parties agree, or Buyer has not duly invoked this
condition, then Buyer shall be deemed to have waived this condition;
B. Section 7.1 (k) of the Agreement is amended to read in its entirety
as follows:
(k) Buyer shall have completed its environmental review of the
Division, the results of which must be satisfactory to Buyer in Buyer's sole
discretion; provided, however, if Buyer has not completed this review by May 31,
2001, or Buyer has not duty invoked this condition, then Buyer shall be deemed
to have waived this condition.
C. Section 9.1 (b) (i) of the Agreement is amended to read in its
entirety as follows:
(i) no later than May 31, 2001, as to the Extended Due Diligence
Items, or May 15, 2001 as to other matters, or such later date to which the
Parties agree, if Buyer is not satisfied with the results of its due diligence
investigation, in its sole discretion;
D. Section 9.1 (b) (ii) of the Agreement is amended to read in its
entirety as follows:
(ii) no later than May 31, 2001, if Buyer is not satisfied with the
results of its environmental review, in its sole discretion;
2. Ratification. Buyer and Xxxx hereby reaffirm and ratify the
Agreement, as amended by this Second Amendment.
3. Governing Law. This Second Amendment shall be governed by the
laws of Ohio.
2
IN WITNESS WHEREOF, the parties have executed this Second Amendment as
of the date first written above.
TUBE TURNS TECHNOLOGIES, INC. XXXX CORPORATION
By: /s/ X. X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------------- -------------------------
Title President & CEO Title SBU Controller
----------------------- -----------------------
3
