TABLE OF CONTENTS

 

Sections			Page
1.	Definitions		1
2.	Sale and Purchase Obligations		5
	2.1	Sale and Purchase of Assets	5
	2.2	Excluded Assets	5
	2.3	Assumption of Liabilities	6
	2.4	Excluded Liabilities	6
	2.5	Consideration	6
	2.6	Purchase Price Adjustment	7
	2.7	Transfer Taxes; Prorations and Adjustments	7
	2.8	Escrow Funds	7
	2.9	Allocation of Purchase Price	7
3.	Closing		8
	3.1	The Closing	8
	3.2	Closing Deliveries of Seller	8
	3.3	Closing Deliveries of Buyer	9
4.	Representations and Warranties of Seller		10
	4.1	Organization; Power and Authority; Authorization; Due Execution; No Conflicts	10
	4.2	Title to and Condition of Purchased Assets	10
	4.3	Claims; Litigation; Compliance with Laws	11
	4.4	Permits; Licenses	11
	4.5	Assigned Agreements	11
	4.6	Proprietary Rights	12
	4.7	Taxes	12
	4.8	Environmental Matters	12
	4.9	Consents	12
	4.10	Brokers	13
5.	Representations and Warranties of Buyer		13
	5.1	Organization; Power and Authority; Authorization; Due Execution; No Conflicts	13
	5.2	Brokers	14
	5.3	Financial Ability	14
	5.4	Consents	14
	5.5	WARN Act	14
6.	Buyer Acknowledgement		14
	6.1	No Other Representations or Warranties	14
7.	Covenants		15
	7.1	Conduct Through the Closing Date	15
	7.2	Bulk Sales Notification Requirements	15

 

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	7.3	Consents	16
	7.4	Advice of Changes Prior to Closing	16
	7.5	Notice of Litigation	16
	7.6	Access to Records; Inspection	16
	7.7	Exclusivity	16
	7.8	Litigation Support	17
8.	Conditions Precedent to the Parties Obligations to Close		18
	8.1	Buyer’s Conditions Precedent	18
	8.2	Seller’s Conditions Precedent	18
	8.3	Mutual Condition Precedent	19
9.	Termination		19
10.	Indemnification		19
	10.1	Indemnification by Seller and the Shareholder	19
	10.2	Indemnification by Buyer	20
	10.3	Indemnification Procedures	20
	10.4	Survival of Indemnification Obligations	21
	10.5	Limitation of Indemnification; Other Indemnification Matters	21
11.	Post-Closing Transfer of Purchased Assets		22
12.	Miscellaneous		23
	12.1	Expenses	23
	12.2	Assignment	23
	12.3	Notice	23
	12.4	Entire Agreement	24
	12.5	Press Releases and Announcements	24
	12.6	Interpretation	25
	12.7	Severability	25
	12.8	Counterparts and Effectiveness	25
	12.9	Applicable Law	25
	12.10	No Third Party Beneficiary	26

 

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ASSET PURCHASE AGREEMENT

 

This Asset Purchase Agreement is made as of December 8, 2008, between LAMTEC CORPORATION, a New Jersey corporation (“ Buyer ”), COMPAC CORPORATION, a Delaware corporation (“ Seller ”), and TRIMAS COMPANY LLC, a Delaware limited liability company (the “ Shareholder ”).

 

Recitals

 

A.            Seller is engaged in the insulation and specialty tape business (the “ Business ”).

 

B.            Buyer desires to purchase, and Seller desires to sell, certain assets associated with the Business, subject to the terms and conditions of this Agreement and in connection with the other transactions contemplated by this Agreement and the Related Agreements (the “ Transactions ”).

 

Therefore, the parties agree as follows:

 

1.                                       Definitions .

 

(a)           The following terms, as used herein, have the following meanings:

 

“ Affiliate ” of any particular Person means any other Person controlling, controlled by, or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies or a Person whether through the ownership of voting securities, contract or otherwise.

 

“ Agreement ” means this Asset Purchase Agreement and all exhibits and schedules to this Asset Purchase Agreement, as amended or supplemented from time to time.

 

“ Benefit Plan ” means any “employee benefit plan” (as such term is defined in ERISA §3(3)) and any executive compensation, bonus, stock purchase, stock option, severance plan, salary continuation, vacation, sick leave, fringe benefit, incentive, insurance arrangement, or similar material plan or arrangement for one or more employees that is not subject to ERISA.

 

“ Closing Inventory Book Value ” means the book value of the Inventory as of the Closing Date but without taking into account the transactions contemplated by this Agreement, determined under GAAP using Seller’s historical accounting principles for financial statements regarding the Business, consistently applied.

 

“ Code ” means the Internal Revenue Code of 1986, as amended (or any successor thereto).

 

“ Consents ” means any registration or filing with, consent or approval of, notice to, or action by any person or Governmental Authority which is required or necessary in order to permit the transfer of the Purchased Assets to Buyer or to permit the operation by Buyer of the Business.

 

“ Environmental Laws ” means any applicable Law which relates to protection of the environment from, or the remediation of, pollution, including, those relating to the release, use,

 

 

presence, storage, recycling, treatment, generation, processing, handling, production, abatement, removal, remediation, exposure to or disposal of hazardous materials, including, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and regulations thereunder; the Federal Clean Air Act, as amended, and regulations thereunder; the Resource Conservation and Recovery Act, as amended, and regulations thereunder; the Federal Water Pollution Control Act, as amended, and regulations thereunder; and the Occupational Safety and Health Act of 1970, as amended, and regulations thereunder; any common law duty or standard of care; and any Permit, as hereinafter defined.

 

“ ERISA ” means the Employee Income Retirement Security Act of 1974, as amended.

 

“ Escrow Agent ” means RBS Citizens, National Association, d/b/a Charter One.

 

“ GAAP ” means United States generally accepted accounting principles, as in effect from time to time, consistently applied.

 

“ Governmental Authority ” means any domestic or foreign government, including any federal, state, territorial or municipal government, and any government agency, tribunal, commission or other authority exercising or purporting to exercise executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, government.

 

“ Hazardous Substances ” means, without limitation, any flammable explosives, radon, radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum and petroleum-based materials, methane, hazardous materials, hazardous wastes, hazardous or toxic substances and any other conditions or substances defined or regulated under any Environmental Law.

 

“ Inventory ” means all inventories of Seller that are used by Seller for the conduct of the Business, including all finished goods, work in process, raw materials, spare parts and all other materials and supplies.

 

“ Laws ” means all applicable foreign, federal, state, local or municipal laws, zoning and other statutes, ordinances, rules, regulations, building and other codes, permits and licenses, court and administrative orders, judgments and decrees and common law and equitable doctrines.

 

“ Liabilities ” means all costs, expenses, charges, debts, liabilities, claims, demands and obligations, whether primary or secondary, direct or indirect, asserted or unasserted, known or unknown, accrued or unaccrued, liquidated or unliquidated, due or to become due, fixed, contingent, absolute or otherwise.

 

“ Material Adverse Effect ” means any material adverse effect on the physical condition of the Purchased Assets, taken as a whole.

 

“ Permits ” means any and all permits, licenses, approvals, orders, consents, registrations, qualifications and authorizations used in the conduct of the Business.

 

“ Person ” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or governmental entity

 

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(whether federal, state, county, city or otherwise and including any instrumentality, division, agency or department thereof).

 

“ Proprietary Rights ” means all of the following items owned by, issued to or licensed to, Seller or used by or necessary for the conduct of the Business as conducted, as contemplated to be conducted or as has ever been conducted at any time, along with all income, royalties, damages and payments due or payable at the Closing or thereafter, including damages and payments for past, present or future infringements or misappropriations thereof, the right to sue and recover for past infringements or misappropriations thereof and any and all corresponding rights or interests that, now or hereafter, may be secured throughout the world:  (i) patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice) and any reissue, continuation, continuation-in-part, division, revision, extension or reexamination thereof; (ii) trademarks, service marks, trade dress, logos, trade names and corporate names, together with all translations, adaptations, derivations, and combinations, including all goodwill associated therewith; (iii) copyrights, registered or unregistered and copyrightable works; (iv) mask works; (v) all registrations, applications and renewals for any of the foregoing; (vi) trade secrets and confidential information (including ideas, formulae, compositions, know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, financial, business and marketing information and plans, and customer and supplier lists, pricing and cost information, and related information); (vii) computer software and software systems (including data, databases and related documentation); (viii) other proprietary rights; (ix) licenses or other agreements to or from third parties regarding the foregoing; and (x) all copies and tangible embodiments of the foregoing (in whatever form or medium), in each case including the items set forth on Schedule 4.6 .

 

“ Related Agreement ” means the Bill of Sale, the Assignment and Assumption Agreement, the Escrow Agreement and all other agreements, instruments and certificates delivered in connection with this Agreement or the Transactions, and all exhibits and schedules thereto, each as amended or supplemented from time to time.

 

“ Target Closing Inventory Book Value ” means $8,451,000.

 

“ 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.

 

“ Taxes ” includes (i) all present and future federal, state, local or foreign taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings, dues and other charges of any nature imposed by any Governmental Authority, including income, capital (including large corporations), withholding, consumption, sales, gross receipts, use, transfer, goods and services or other value-added, single business, environmental, excise, customs, anti-dumping, countervail, net worth, stamp, registration, franchise, payroll, employment, health, education, business, school, property, local improvement, development, education development and occupation taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings, dues and charges, (ii) any Liability for the payment of any amounts of the type described in clause (i) as a result of being a member of an affiliated, combined, consolidated, or unitary group for any tax period, (iii) any

 

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Liability for the payment of any amounts of the type described in clause (i) as a result of being a Person required by law to withhold or collect taxes imposed on another Person, (iv) any Liability for the payment of amounts described in clause (i), (ii) or (iii) as a result of being a transferee of, or a successor in interest to, any Person or as a result of an express or implied obligation to indemnify any Person, and (v) any and all interest, fines, penalties, additions to tax and additional amounts imposed in connection with or with respect to any amounts described in clause (i), (ii), (iii) or (iv).

 

(b)           In addition, the following terms, as used herein, have the meanings set forth in the applicable provisions referenced below:

 

“Adjustable Cash Purchase Price”		Section 2.5(b)
“Assigned Agreements”		Section 2.1(d)
“Assignment and Assumption Agreement”		Section 3.2(b)
“Assumed Liabilities”		Section 2.3
“Basket”		Section 10.5(a)
“Bill of Sale”		Section 3.2(a)
“Business”		Recital A
“Buyer”		Introductory Paragraph
“Buyer Indemnified Parties”		Section 10.1
“Cash Purchase Price”		Section 2.5(b).
“Closing”		Section 3.1
“Closing Date”		Section 3.1
“Company Transaction”		Section 7.7
“Confidentiality Provisions”		Section 12.4
“Escrow Agreement”		Section 3.2(c)
“Escrow Claim Amount”		Section 2.8
“Escrow Funds”		Section 2.5(b)
“Escrow Period”		Section 2.8
“Excluded Assets”		Section 2.2
“Excluded Liabilities”		Section 2.4
“Extension Period”		Section 11
“Indemnified Party”		Section 10.3
“Indemnifying Party”		Section 10.3
“Losses”		Section 10.1
“Material Adverse Effect”		Section 4.3
“Parent”		Section 12.4
“Permitted Liens”		Section 7.1(d)
“Purchased Assets”		Section 2.1
“Purchase Price”		Section 2.5
“Purchase Price Adjustment Amount”		Section 2.6(a)
“Purchase Price Allocation”		Section 2.8
“Rejected Inventory”		Section 2.8
“Removal Period”		Section 11
“Seller”		Introductory Paragraph
“Seller Consents”		Section 7.3
“Seller’s Facility”		Section 4.4

 

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“Shareholder”		Introductory Paragraph
“Storage Fee”		Section 11
“Transactions”		Recital B
“WARN Act”		Section 5.5

 

2.                                       Sale and Purchase Obligations.

 

2.1          Sale and Purchase of Assets.

 

Subject to the terms and conditions of this Agreement, at the Closing, Seller shall sell, assign, transfer and deliver to Buyer, and Buyer shall purchase from Seller the following assets of Seller (the “ Purchased Assets ”):

 

(a)           all Inventory;

 

(b)           all of Seller’s equipment used in connection with the Business (in each case where applicable, together with only such fittings or wiring beyond the switch gears as agreed to by Buyer and Seller in writing), computer equipment and motor vehicles, as well as all manufacturers’ warranties associated with such items;

 

(c)           the Proprietary Rights set forth on Schedule 4.6; and

 

(d)           all of Seller’s rights, title and interest in, to or under the contracts described on Schedule 2.1(d)  (the “ Assigned Agreements ”).

 

Notwithstanding anything in this Agreement to the contrary, no contract, agreement, or license, of Seller that is part of the Purchased Assets and that is not capable of being delegated, assigned or transferred to Buyer without the consent or waiver of another party, or under which any delegation, assignment transfer or purported delegation, assignment or delegation to Buyer would constitute a violation, breach or default, shall be delegated, assigned or transferred to Buyer without having first obtained such required consent or waiver and, to the extent such consents and approvals are not obtained and in full force and effect as of the Closing Date and Buyer nevertheless proceeds to close the Transactions, Seller shall use commercially reasonable efforts to cooperate with Buyer after the Closing (i) to establish lawful arrangements which result in the benefits and obligations under such contracts, agreements, and licenses being apportioned in a manner that is consistent with the purpose and intention of this Agreement and (ii) if so requested by Buyer and at Buyer’s expense, to obtain any such consents and waivers, and enforce Seller’s rights under such contracts, agreements, and licenses on behalf and for the benefit of, and as directed by, Buyer.

 

2.2                                Excluded Assets.

 

Notwithstanding anything herein to the contrary, Seller is not selling to Buyer and Buyer shall not acquire any interests in, and the term “ Purchased Assets ” shall not include, any assets, rights or claims of Seller that are not explicitly set forth in Section 2.1 above (the “ Excluded Assets ”).  The Excluded Assets shall include, without limitation:

 

(a)           all of Seller’s cash, cash equivalents and notes receivable;

 

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(b)           all accounts receivable of Seller;

 

(c)           all assets of Seller that are related to Seller’s corporate governance and reporting, including, without limitation, Seller’s organizational documents, Tax Returns, claims for Tax refunds and financial reports that encompass more than just the operations of the Business;

 

(d)           Seller’s Benefit Plans, including any underlying assets, agreements and policies;

 

(e)           all records or files that relate to human resources, safety, or environmental matters, or that are necessary for Seller to support any prior or future filings with any Governmental Authority, including any such records or files contained on the computer equipment set forth in Section 2.1(b) ;

 

(f)            Seller’s rights under this Agreement;

 

(g)           all assets set forth on Schedule 2.2(g) ;

 

(h)           all Seller’s prepayments or overpayments of any Taxes; and

 

(i)            all other assets of Seller other than the Purchased Assets.

 

2.3          Assumption of Liabilities.

 

Buyer shall assume, become liable for and pay or perform when due (a) Seller’s obligations arising or accruing after the Closing under the Assigned Agreements and (b) all other Liabilities or obligations arising from the post-Closing operation or ownership of the Purchased Assets (the “ Assumed Liabilities ”).

 

2.4          Excluded Liabilities.

 

(a)           Buyer shall not assume or become liable for, and Seller shall continue to be responsible for and pay or perform when due, any Liabilities of Seller other than the Assumed Liabilities (the “ Excluded Liabilities ”).

 

2.5          Consideration.

 

(a)           The total consideration (the “ Purchase Price ”) for the Purchased Assets will be (i) $25,000,000 (as may be adjusted in accordance with Section 2.6 ) and (ii) plus or minus the net amount of prorations required under Section 2.7 .  Buyer shall also assume the Assumed Liabilities at the Closing.

 

(b)           At the Closing, Buyer shall pay the Purchase Price to Seller as follows: (i) $14,700,000 in cash by wire transfer to an account designated in writing by Seller at least two (2) business days prior to the Closing (the “ Cash Purchase Price ”), (ii) an amount equal to $10,000,000 (as may be adjusted in accordance with Section 2.6 ) (the “ Adjustable Cash Purchase Price ”), multiplied by 0.825, in cash by wire transfer to an account designated in writing by

 

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Seller at least two (2) business days prior to the Closing, (iii) $300,000 in cash by wire transfer to the Escrow Agent (the “ Escrow Funds ”), (iv) paying and discharging all amounts required under Section 2.7, and (v) the balance of the Purchase Price to be paid by execution and delivery of the Assignment and Assumption Agreement.

 

2.6                                Purchase Price Adjustment .

 

(a)           On the business day before the Closing Date, Buyer and Seller shall determine the Closing Inventory Book Value, which determination shall be final and binding on the parties.  The Purchase Price will be (i) decreased by the amount, if any, by which the Closing Inventory Book Value is less than the Target Closing Inventory Book Value, or (ii) increased by the amount, if any, by which the Closing Inventory Book Value is greater than the Target Closing Inventory Book Value. The net amount that is a decrease or an increase to the Purchase Price as contemplated in this Section 2.6 is referred to herein as the “ Purchase Price Adjustment Amount .”

 

(b)           To the extent that the Purchase Price is (i) reduced as contemplated hereby, the Adjustable Cash Purchase Price shall be reduced by the Purchase Price Adjustment Amount, or (ii) increased as contemplated hereby, the Adjustable Cash Purchase Price shall be increased by the Purchase Price Adjustment Amount.

 

2.7          Transfer Taxes; Prorations and Adjustments.

 

All federal, state and local sales, use, excise, documentary, stamp taxes and all other Taxes, duties, or fees properly payable on and in connection with Seller’s conveyance, assignment, transfer or delivery of the Purchased Assets to Buyer, whether levied on Buyer or Seller, shall be borne equally by Buyer and Seller.  The parties will also prorate such other amounts related to the Purchased Assets as of the Closing Date as they deem appropriate.

 

2.8                                Escrow Funds.

 

If a customer of the Business (other than any of Buyer’s Affiliates) returns or rejects Inventory (excluding raw materials) included in the Purchased Assets during the Escrow Period (“ Rejected Inventory ”), then, subject to the terms of the Escrow Agreement, Buyer may make a claim, during the first twelve (12) months following the Closing Date (the “ Escrow Period ”), to recover from the Escrow Funds an amount equal to the amount credited or refunded to the customer (the “ Escrow Claim Amount ”). Buyer’s sole source of recovery under this Section 2.8 will be the Escrow Funds.  Seller will use its reasonable best efforts to close out or reduce consigned Inventory prior to the Closing.

 

2.9                                Allocation of Purchase Price.

 

Prior to the Closing Date, Buyer and Seller shall allocate the Purchase Price, the Assumed Liabilities, and all other relevant items (including, for example, any adjustments or additions to the Purchase Price), in accordance with Section 1060 of the Code (and any similar provision of state, local or foreign law, as appropriate) (the “ Purchase Price Allocation ”).  A schedule setting forth the parties’ agreement on such Purchase Price Allocation shall be agreed upon by the parties prior to the Closing; provided that the Purchase Price Allocation shall

 

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allocate $8,500,000 to Seller’s goodwill and the Proprietary Rights included as part of the Purchased Assets.  In the event that, after the Purchase Price Allocation is determined, the Purchase Price is adjusted, the Purchase Price Allocation shall also be adjusted.  To the extent permitted by the Code or other applicable tax law, any adjustments to the Purchase Price shall be allocated, to the extent possible, to the classes of assets that were the subject of the adjustments to the Purchase Price.  The Purchase Price Allocation, including any adjustments thereto, will be binding on Buyer and Seller.  Each of the Parties shall file all Tax Returns (including amended returns, claims for refunds, and IRS Form 8594) in a manner consistent with the Purchase Price Allocation, including any adjustments thereto.  No party will take any position (whether in audits or similar proceedings, Tax Returns, refund claims, or otherwise) that is inconsistent with such allocation, except as required to do so by applicable Law.  Each of Buyer and Seller (and Seller’s Affiliates, as applicable) will use its commercially reasonable best efforts to sustain such allocation in any subsequent audit, similar proceeding, appeal, or court proceeding.

 

3.                                       Closing.

 

3.1          The Closing.

 

Unless earlier terminated pursuant to Section 9 , the parties agree that the Closing under this Agreement will be held on the later of February 9, 2009 or on the fifth business day after the satisfaction or waiver of all conditions to the obligations of the parties to consummate the transactions contemplated hereby, or at such other place, day and time as Buyer and Seller shall mutually agree upon. The consummation of the transactions contemplated by this Agreement shall be deemed to be effective at such place, day and time as agreed to by the parties and are sometimes referred to in this Agreement as the “ Closing ,” and such date is sometimes referred to as the “ Closing Date .”

 

3.2          Closing Deliveries of Seller.

 

At the Closing, Seller shall, in addition to other items specified elsewhere in this Agreement, take the following actions:

 

(a)           Seller will execute and deliver to Buyer a bill of sale for the Purchased Assets in the form of the attached Exhibit 3.2(a)  (the “ Bill of Sale ”).

 

(b)           Seller will execute and deliver an assignment and assumption agreement in the form of the attached Exhibit 3.2(b)  (the “ Assignment and Assumption Agreement ”).

 

(c)           Seller will execute and deliver an escrow agreement in the form of the attached Exhibit 3.2(c)  (the “ Escrow Agreement ”).

 

(d)           Seller will execute and deliver certificates of title with respect to all titled property which is included in the Purchased Assets.

 

(e)           Seller will deliver payoff letters and releases of all encumbrances on any of the Purchased Assets, including, all required UCC-3 termination statements or other evidences of discharge satisfactory to Buyer.

 

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(f)                                     Seller will deliver a copy of Seller’s articles of incorporation and bylaws, certified as a true and correct copy by Seller’s secretary (or other authorized officer).

 

(g)                                  Seller will deliver a certificate of standing showing that Seller is duly incorporated, validly existing and in good standing in the state of Delaware as of a date within five (5) business days of the Closing Date.

 

(h)                                  Seller will deliver certified resolutions of Seller’s board of directors and the Shareholder’s managers approving the Transactions and the execution, delivery and performance of this Agreement and the Related Agreements to which Seller is a party.

 

(i)                                      Seller will have provided Buyer evidence that all Seller Consents have been obtained or given in accordance with this Agreement.

 

(j)                                      Seller will execute and deliver to Buyer a certificate stating that the conditions set forth in Section 8.1(a) , (b)  and (c) have been satisfied.

 

3.3                                Closing Deliveries of Buyer.

 

At the Closing, Buyer shall, in addition to other items specified elsewhere in this Agreement, take the following actions:

 

(a)                                   Buyer will pay the Cash Purchase Price in accordance with Section 2.5 .

 

(b)                                  Buyer will pay the Adjustable Cash Purchase Price in accordance with Section 2.5 .

 

(c)                                   Buyer will execute and deliver the Assignment and Assumption Agreement.

 

(d)                                  Buyer will execute and deliver the Escrow Agreement.

 

(e)                                   Buyer will execute and deliver a New Jersey resale exemption certificate for the purchase of the Inventory.

 

(f)                                     Buyer will deliver a copy of Buyer’s articles of incorporation and bylaws, certified as a true and correct copy by Buyer’s secretary (or other authorized officer).

 

(g)                                  Buyer will deliver governmental certificates showing that Buyer is duly organized, validly existing and in good standing in the state of New Jersey as of a date within five (5) business days of the Closing Date.

 

(h)                                  Buyer will deliver certified resolutions of Buyer’s board of directors approving the Transactions and the execution, delivery and performance of this Agreement and the Related Agreements to which Buyer is a party.

 

(i)                                      Buyer will execute and deliver to Seller a certificate stating that the conditions set forth in Section 8.2(c)  and (d)  have been satisfied.

 

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4.                                       Representations and Warranties of Seller.

 

Seller represents and warrants to Buyer that the statements made in this Section 4 are true and correct as of the date of this Agreement and will be true and correct 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 Section 4 ), except as set forth in the schedules to be delivered by Seller to Buyer upon execution of this Agreement by Seller and Buyer.

 

4.1                                Organization; Power and Authority; Authorization; Due Execution; No Conflicts.

 

(a)                                   Seller is a corporation duly incorporated, validly existing and in good standing under the laws of the state of Delaware.  Seller has the requisite corporate power and authority to (i) own and operate the Purchased Assets, (ii) carry on the Business as it is presently being conducted, (iii) enter into this Agreement and the Related Agreements to which it is a party, and (iv) consummate the Transactions.

 

(b)                                  This Agreement and the Related Agreements to which Seller is a party have been duly authorized by Seller and by all necessary corporate action on the part of Seller, and no other proceedings are necessary on the part of Seller to authorize the execution, delivery and performance of this Agreement and the Related Agreements.  This Agreement and the Related Agreements to which Seller is a party, when executed and delivered, will constitute the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting enforcement of creditors’ rights generally and by general principles of equity (whether applied in a proceeding at Law or in equity).

 

(c)                                   Seller’s execution, delivery and performance of this Agreement and the Related Agreements to which it is a party and the consummation of the Transactions by Seller do not and will not conflict with, result in a violation or breach of, constitute a default (or an event which with the giving of notice or the lapse of time or both would constitute a default) or give rise to any right of termination, amendment, cancellation or acceleration of any right or obligation of Seller under, or result in any loss of any material benefit to which Seller is entitled, or result in the creation or imposition of any lien upon any of the Purchased Assets, under the terms of (i) Seller&rsqu