<PAGE>
EXHIBIT 10.24
EXECUTION COPY
ASSET PURCHASE AGREEMENT
BY AND
BETWEEN
L.B. FOSTER COMPANY,
A PENNSYLVANIA CORPORATION
AND
THE REINFORCED EARTH COMPANY,
A DELAWARE CORPORATION
DATED AS OF FEBRUARY 15, 2006
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
ARTICLE I
DEFINITIONS.................................................
1
1.1.
Definitions.................................................
1
1.2.
Construction................................................
7
ARTICLE II THE
ACQUISITION.............................................
8
2.1.
Agreement to Purchase and Sell..............................
8
2.2.
Excluded Assets.............................................
8
2.3.
Excluded Liabilities........................................
9
2.4.
Total Consideration.........................................
9
2.5.
Adjustment..................................................
10
2.6.
Net Assets..................................................
10
2.7.
Allocation of Total Consideration...........................
11
2.8.
Receipts After Closing......................................
11
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER....................
12
3.1.
Corporate Existence and Qualification.......................
12
3.2.
Power and
Authority; Enforceability......................... 12
3.3.
No Conflict.................................................
12
3.4.
Consents, Approvals and Permits.............................
12
3.5.
Statements..................................................
13
3.6.
Absence of Changes..........................................
13
3.7.
Title to Properties.........................................
13
3.8.
Litigation, Judgments, Etc..................................
13
3.9.
Intellectual Property and IT................................
14
3.10.
Contractual Obligations.....................................
15
3.11.
Taxes.......................................................
16
3.12.
Employment Matters..........................................
16
3.13.
Insurance...................................................
17
3.14.
Environmental Matters.......................................
17
3.15.
Condition of Assets.........................................
17
3.16.
Accurate and Complete Records; Customer Information.........
17
3.17.
Brokerage Arrangements......................................
18
3.18.
No Misleading
Statements.................................... 18
3.19.
Sufficiency of Properties, Assets and Employees.............
18
3.20.
Compliance With Laws........................................
18
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER.....................
18
4.1.
Organization................................................
18
4.2.
Power and Authority; Enforceability.........................
18
4.3.
No Conflict.................................................
19
4.4.
Consents, Approvals and Permits.............................
19
4.5.
Financing...................................................
19
ARTICLE V
CLOSING.....................................................
19
</TABLE>
-i-
<PAGE>
TABLE OF CONTENTS
(Countinued)
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
5.1.
Closing.....................................................
19
5.2.
Deliveries by Seller at Closing.............................
19
5.3.
Deliveries by Buyer at Closing..............................
20
ARTICLE VI
ACTIONS PRIOR TO CLOSING....................................
21
6.1. Conduct
and Preservation of Business........................ 21
6.2.
Restrictions on Certain Actions.............................
21
ARTICLE VII ADDITIONAL
AGREEMENTS....................................... 21
7.1.
Cooperation.................................................
21
7.2.
Regulatory Issues and Other Authorizations and Consents.....
22
7.3.
Public Announcements........................................
23
7.4.
Amendment of Schedules......................................
23
7.5.
Fees and Expenses...........................................
23
7.6.
Transfer Taxes..............................................
23
7.7.
Casualty Loss...............................................
24
7.8.
Insurance...................................................
24
7.9.
Confidentiality.............................................
24
7.10.
Consents....................................................
25
7.11.
Maintenance of Guaranties and Insurance.....................
26
7.12.
Employees...................................................
26
7.13.
Seller's Warranty Work......................................
28
7.14.
Accounts Payable............................................
28
ARTICLE VIII CONDITIONS TO SELLER'S OBLIGATION TO
CLOSE.................. 28
8.1.
Representations and Warranties True.........................
28
8.2.
Covenants and Agreements Performed..........................
28
8.3.
Consents....................................................
29
8.4.
Legal Proceedings...........................................
29
ARTICLE IX
CONDITIONS TO BUYER'S OBLIGATION TO CLOSE...................
29
9.1.
Representations and Warranties True.........................
29
9.2.
Covenants and Agreements Performed..........................
29
9.3.
Consents and Permits........................................
29
9.4.
Legal Proceedings...........................................
29
ARTICLE X
TERMINATION.................................................
29
10.1.
Termination.................................................
30
10.2.
Effect of Termination.......................................
30
10.3.
Liabilities in Event of Termination.........................
30
ARTICLE XI
INDEMNITY AND SURVIVAL......................................
30
11.1.
Buyer's Indemnity...........................................
30
11.2.
Seller's Indemnity..........................................
31
</TABLE>
-ii-
<PAGE>
TABLE OF CONTENTS
(Countinued)
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
11.3.
Claim Notice................................................
32
11.4.
DAMAGES.....................................................
33
11.5.
Survival and Time Limitation................................
34
11.6.
Limitation on Indemnity.....................................
34
11.7.
Sole
Remedy.................................................
34
ARTICLE XII TAX
MATTERS.................................................
35
12.1.
Liability for Taxes.........................................
35
12.2.
Audits or Assessments.......................................
35
ARTICLE XIII RESOLUTION OF
DISPUTES...................................... 36
13.1.
Agreement to Arbitrate......................................
36
13.2.
Appointment of Arbitrator...................................
36
13.3.
Authority of the Arbitrators................................
37
13.4.
Place and Conduct of Arbitration............................
37
13.5.
Payment and Finality of Award...............................
37
13.6.
Use
of the Courts...........................................
37
13.7.
Arbitration Provision Enforceable...........................
38
ARTICLE XIV
MISCELLANEOUS...............................................
38
14.1.
Notice......................................................
38
14.2.
Governing Law...............................................
39
14.3.
Entire Agreement; Amendments and Waivers....................
39
14.4.
Severability................................................
39
14.5.
Exhibits and Schedules......................................
39
14.6.
Successors Bound; Third Parties.............................
39
14.7.
Multiple Counterparts.......................................
40
14.8.
Mutual Drafting.............................................
40
14.9.
Further Assurances..........................................
40
</TABLE>
-iii-
<PAGE>
EXHIBITS:
Exhibit A - Noncompetition Agreement
Exhibit B - Press Release
Exhibit C - Form of Subcontract
SCHEDULES:
Schedule 1.1
- Exclusions from Data
Schedule 2.7
- Allocation of Total Consideration
Schedule 3.1
- Jurisdictions
Schedule 3.3
- No Conflict
Schedule 3.4
- Seller's Consents, Approvals And Permits
Schedule 3.5(A) -
Specified Assets And Liabilities
Schedule 3.6
- Absence Of Changes
Schedule 3.7
- Title To Properties
Schedule 3.8
- Litigation, Judgments, Etc.
Schedule 3.9(A) -
Specified IP Rights
Schedule 3.9(B) - IT
Specified Assets
Schedule 3.9(D) -
Claims
Schedule 3.10(A) -
Confidentiality and Noncompetition Agreements
Schedule 3.10(B)(I) -
Specified Contracts
Schedule 3.10(B)(II) - Specified Contracts - Breach
Schedules 3.11 - Taxes
Schedules 3.12 -
Business Employees
Schedules 3.13 -
Insurance
Schedule 3.14
- Environmental Matters
Schedule 3.20
- Compliance with Laws
Schedule 6.1.
- Conduct and Preservation of the Business
<PAGE>
ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT ("Agreement"), dated and effective as
of
February 15, 2006, is by and between L.B. Foster Company, a
Pennsylvania
corporation ("Seller"), and The Reinforced Earth Company, a
Delaware corporation
("Buyer").
RECITALS:
A.
Seller is the owner of certain assets comprising the Business
(as
defined in Section 1.1).
B.
Seller desires to sell to Buyer, and Buyer desires to purchase
from
Seller, the Specified Assets (as defined in Section 1.1), upon the
terms and
subject to the conditions set forth in this Agreement.
NOW,
THEREFORE, Seller and Buyer agree as follow:
ARTICLE I
DEFINITIONS
1.1.
Definitions. In this Agreement:
"AAA" shall have the meaning set out in Section 13.2(a);
"Accounts Payable" shall mean all accounts payable (excluding all
accounts
payable in respect of Taxes accruing during the Pre-Closing Date
Period),
accrued expenses and other current liabilities (including prepaid
sales and
accrued freight) arising under the Specified Contracts and existing
as of the
Closing Date;
"Adjustment Amount" shall have the meaning set out in Section
2.5;
"Affiliate" of a Person shall mean a Person directly or
indirectly
controlled by, controlling or under common control with the other
Person. For
the purposes of this definition, "control" means, when used with
respect to any
Person, the possession, directly or indirectly, of the power to
direct or cause
the direction of the management and policies of such Person,
whether through the
ownership of voting securities, by contract, or otherwise, and the
terms
"controlling" and "controlled" have correlative meanings;
"Allocation of Total Consideration" shall have the meaning set out
in
Section 2.7;
"Alternative Arrangement" shall have the meaning set out in Section
7.10;
"Applicable Law" shall mean any statute, law, rule, or regulation,
or any
judgment, order, ordinance, writ, injunction, or decree of, any
Governmental
Entity to which a specified Person or property is subject;
"Award" shall have the meaning set out in Section 13.5;
"Benefit Plan" shall have the meaning set out in Section 3.12;
<PAGE>
"Business" shall mean the mechanical stabilized earth business of
Seller's
Geotech/Retained Earth Division, excluding its soundwall business,
and the
products and services related thereto;
"Business Day" shall mean any day other than a Saturday, Sunday or
day on
which banks located in the Commonwealth of Virginia are authorized
or obligated
to close.
"Business Employees" shall have the meaning set out in Section
3.12;
"Buyer Benefit Plans" shall have the meaning set out in Section
7.12(d);
"Buyer Indemnified Parties" shall have the meaning set out in
Section 11.2;
"Buyer's Closing Conditions" shall have the meaning set out in
Article IX;
"Buyer's Consents and Approvals" shall mean all consents,
approvals,
authorizations, licenses, actions, filings, notifications and other
items listed
in Schedule 4.4;
"Claim" shall have the meaning set out in Section 11.1;
"Claim Notice" shall have the meaning set out in Section 11.3;
"Closing" shall have the meaning set out in Section 5.1;
"Closing Conditions" shall mean, collectively, Seller's Closing
Conditions
and Buyer's Closing Conditions;
"Closing Date" shall mean the date on which the Closing occurs;
"Closing Date Net Asset Value" means the Net Asset Value as of the
Closing
Date;
"Code" shall mean the Internal Revenue Code of 1986, as
amended;
"Confidential Information" shall have the meaning set out in
Section
7.9(a);
"Consents and Approvals" shall mean, collectively, Seller's
Consents and
Approvals and Buyer's Consents and Approvals;
"Customer Information" shall have the meaning set out in Section
3.16;
"Customers" shall mean all customers party to the Specified
Contracts, a
current list of which, together with certain other information
about such
customers and their Specified Contracts, is set forth in Schedule
3.10(B)(I);
"Data" shall mean all data to the extent comprising or primarily
related to
the Specified Assets, including, without limitation, data
generated, processed,
computed, stored, created or otherwise manipulated by or a
derivative of the
Specified Assets, to the extent primarily related to the Specified
Assets and of
significance to the continued operation of the Business, except
for
-2-
<PAGE>
data specifically excluded pursuant to Schedule 1.1 and not
otherwise provided
by Seller to Buyer;
"Deferred Contract" shall have the meaning set out in Section
7.10;
"Direct Claim" shall
mean a Claim against an Indemnifying Party that does
not involve damages being asserted against it or sought to be
collected from it
by a Third Party;
"Dispute Deadline Date" shall have the meaning set out in Section
2.6(b);
"Disputes" shall have the meaning set out in Section 13.1;
"Disputing Party" shall have the meaning set out in Section
13.1;
"Effective Date" shall mean the date first set forth above;
"Encumbrances" shall mean liens, charges, pledges, options and
other rights
of ownership, mortgages, deeds of trust, security interests,
restrictions
(whether on voting, sale, transfer, disposition, or otherwise),
easements,
claims, licenses and other rights of usage, and other encumbrances
of every type
and description, whether imposed by law, agreement, understanding,
or otherwise;
"Environmental Claim" shall mean any and all administrative,
regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of
noncompliance or violation, investigations or other adversarial
proceedings
relating to any Environmental Law or Environmental Permit
including, without
limitation (i) any and all claims by governmental, territorial or
regulatory
authorities for enforcement, cleanup, removal, response, remedial
or other
similar actions or damages pursuant to any applicable Environmental
Law and (ii)
any and all claims by a third party seeking damages,
contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from
Hazardous Substances or arising from alleged injury or threat of
injury to human
health, property, or the environment resulting from exposures to or
Releases of
Hazardous Substances. An "Environmental Claim" includes, but is not
limited to,
a common law action, as well as a proceeding to issue, modify,
terminate or
enforce the provisions of an Environmental Permit or requirement
of
Environmental Law, or to adopt or amend a regulation to the extent
that such a
proceeding attempts to redress violations or alleged violations of
the
applicable permit, license, or regulation;
"Environmental Law" shall mean any federal, state, territorial, or
local
statute, law, rule, regulation, ordinance, code, policy or rule of
common law in
effect and in each case as amended, and any judicial or
administrative
interpretation thereof, including any judicial or administrative
order, consent
decree or judgment, relating to the environment or Hazardous
Substances,
including, without limitation: the Comprehensive Environmental
Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments
and Reauthorization Act of 1986, 42 U.S.C. ' 9601 et seq.; the
Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. ' 11001 et
seq.; the
Resource Conservation and Recovery Act, 42 U.S.C. ' 6901 et seq.;
the Federal
Water Pollution Control Act, 33 U.S.C. ' 1251 et seq.; the Clean
Air Act, 42
U.S.C. ' 7401 et seq.; the Federal Insecticide, Fungicide and
Rodenticide Act, 7
U.S.C. ' 136 et seq.; the Safe Drinking Water Act, 42 U.S.C. ' 300f
et seq.; the
Toxic Substance Control Act, 15 U.S.C.
-3-
<PAGE>
' 2601 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. ' 2701 et
seq.; the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. '
5101 et seq.;
the Atomic Energy Act, as amended, 42 U.S.C. ' 2011 et seq.; any
laws regulating
the use of biological agents or substances including medical or
infectious
wastes; and any corresponding or analogous foreign, territorial,
state or local
laws, regulations or ordinances, which may be applicable, as any
such acts may
be amended;
"Environmental Permits" shall mean all permits, approvals,
identification
numbers, licenses and other authorizations required under any
applicable
Environmental Law;
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as
amended;
"Estimated Net Asset Value" shall mean $2,691,000.
"Estimated Total Consideration" shall have the meaning set out in
Section
2.4(b).
"Excluded Assets" shall have the meaning set out in Section
2.2;
"Excluded Liabilities" shall have the meaning set out in Section
2.3;
"Fosmart" shall mean Fosmart, Inc., an Affiliate of Seller that
holds title
to and has rights associated with certain trademarks used by Seller
in its
operation of the Business;
"Fosmart Marks" means certain trademarks owned by Fosmart and used
in
Seller's operation of the Business, including the Trademark;
"GAAP" shall mean generally accepted accounting principles in the
United
States of America as consistently applied by Seller and as
promulgated by the
Financial Accounting Standards Board from time to time, with such
exceptions to
such generally accepted accounting principles as may be noted or
otherwise
referred to on any individual financial statement or schedule;
"Governmental Entity" shall mean any court or tribunal in any
jurisdiction
(domestic or foreign) or any federal, state, municipal or local
government or
other governmental body, agency, authority, department, commission,
board,
bureau, instrumentality, arbitrator or arbitral body (domestic or
foreign);
"Hazardous Substances" shall mean (i) any chemicals, materials
or
substances defined as or included in the definition of "hazardous
substances,"
"hazardous wastes," "hazardous materials," "restricted hazardous
wastes," "toxic
substances," "toxic pollutants," "hazardous air pollutants,"
"pollutants,"
"contaminants," "toxic chemicals," "toxics," "hazardous chemicals,"
"extremely
hazardous substances," "regulated substances" or "pesticides" as
defined as such
in any applicable Environmental Law, (ii) any radioactive
materials,
asbestos-containing materials, urea formaldehyde foam insulation,
and radon in
harmful quantities or concentration that are regulated by any
Governmental
Entity having jurisdiction in the location of such materials, and
(iii) any
other chemical, material or substance, exposure to which is
prohibited, limited
or
-4-
<PAGE>
regulated by any Governmental Entity having jurisdiction in the
location of such
substances on the basis of potential hazards;
"Hired Business Employees" shall have the meaning set out in
Section
7.12(a);
"Indemnified Party" shall have the meaning set out in Section
11.3(a);
"Indemnifying Party" shall have the meaning set out in Section
11.3(a);
"IT
Specified Assets" shall have the meaning set out in Section
3.9(b);
"Knowledge" shall mean the actual knowledge (unless otherwise
provided for
hereunder), of the applicable Person's executive officers and
current division
managers engaged in the Business, unless other individual(s) are
specifically
referenced.
"Material Adverse Effect" shall mean, with respect to the Specified
Assets,
the Business, Seller or Buyer, respectively, any material adverse
change or
material adverse condition in or relating to the financial
condition, results of
operations, or business of the Specified Assets, Business, Seller
or Buyer,
respectively, or that impedes the ability of Seller or Buyer,
respectively, to
consummate the transactions contemplated hereby, or perform its
obligations
hereunder;
"Net
Asset Value" means the book value of the following Specified
Assets
determined in accordance with GAAP: (a) fixed assets primarily
related to the
Business but excluding the Excluded Assets, (b) work in progress,
valued using
the percentage of completion method employed by Seller consisting
of costs
incurred plus profit minus billing, (c) inventory related to the
Business (but
excluding the Excluded Assets), and (d) Miscellaneous Assets (as
defined in
Schedule 3.5(A)(v)), all as of 10 a.m. (EST) on the Closing Date
with respect to
determination of the Closing Date Net Asset Value;
"Neutral Accountants" means a nationally-recognized independent
firm of
certified public accountants mutually selected by Seller and Buyer
or, if the
parties fail to agree within thirty (30) days after the 30-day
negotiation
period set forth in Section 2.6(c), KPMG, or if KPMG is not
available,
PriceWaterhouse Coopers;
"Noncompetition Agreement" shall mean a Noncompetition Agreement
between
Seller and Buyer as of the Closing Date, substantially in the form
of Exhibit A;
"Notice" shall have the meaning set out in Section 14.1;
"Notice Period" shall have the meaning set out in Section
11.3(b);
"Permits" shall mean any licenses, permits, consents, approvals,
variances,
exemptions, franchises, registrations and other authorizations of
or from
Governmental Entities, and shall include, without limitation, the
Environmental
Permits;
"Person" shall mean any individual, corporation, partnership,
joint
venture, trust, limited liability company, unincorporated
organization,
Governmental Entity or other entity;
-5-
<PAGE>
"Pre-Closing Date Period" shall have the meaning set out in
Section
12.1(a);
"Proceedings" shall mean all proceedings, actions, claims,
suits,
investigations, and inquiries by or before any Governmental
Entity;
"Real Property" shall have the meaning set out in Section
2.2(b).
"Release" shall mean any release, spill, emission, leaking,
pumping,
injection, deposit, disposal, discharge, dispersal, leaching or
migration of any
Hazardous Substance into the environment or into or out of any
property,
including the movement of any Hazardous Substance through or in the
air, soil,
surface water, groundwater or property;
"Returns" shall mean all reports, estimates, declarations of
estimated tax,
information statements and returns relating to, or required to be
filed in
connection with, any Taxes, including information returns or
reports with
respect to backup withholding and other payments to third
parties;
"Seller Indemnified Parties" shall have the meaning set out in
Section
11.1;
"Seller's Closing Conditions" shall have the meaning set out in
Article
VIII;
"Seller's Consents and Approvals" shall mean all consents,
approvals,
authorizations, licenses, actions, filings, notifications and other
items listed
on Schedule 3.4;
"Seller's Credit Agreement" shall have the meaning set out in
Section 3.6;
"Seller Tax Matter" shall have the meaning set out in Section
12.2;
"Specified Assets" shall mean only the assets set forth or
described on
Schedule 3.5(A) hereto, as may be modified at Closing by the
agreement of the
parties hereto;
"Specified Contracts" shall mean the contracts, agreements,
commitments and
instruments with customers, suppliers, vendors, lessors, lessees,
providers of
others listed on Schedule 3.10(B)(I);
"Specified IP Rights" shall have the meaning set out in Section
3.9(a);
"Specified Liabilities" shall mean (i) the obligations arising or
to be
performed from and after the Closing under and with respect to the
Specified
Contracts; (ii) liabilities arising in connection with the
operation of the
Specified Assets after the Closing Date, and (iii) liability
identified in
Schedule 3.5(A) as Specified Liabilities. The term "Specified
Liabilities" shall
not include, and hereby expressly excludes, the Excluded
Liabilities;
"Statement" shall have the meaning set out in Section 2.6(a);
"Taxes" shall mean all taxes, however denominated, including any
interest,
penalties or other additions to tax that may become payable in
respect thereof,
imposed by any Governmental Entity, which taxes shall include,
without limiting
the generality of the foregoing, all income or
-6-
<PAGE>
profits taxes (including, but not limited to, federal income taxes,
state income
taxes and any liability for the payment of any combined or
consolidated tax,
including liability imposed pursuant to Treasury Regulations
Section 1.1502-6),
gross receipts taxes, sales taxes, use taxes, real property gains
or transfer
taxes, ad valorem taxes, property taxes, value-added taxes,
franchise taxes,
production taxes, severance taxes, windfall profit taxes,
withholding taxes,
payroll taxes, employment taxes, social security, excise taxes and
other
obligations of the same or similar nature to any of the foregoing,
whether
disputed or not;
"Third Party" shall have the meaning set out in Section
11.3(a);
"Total Consideration" shall have the meaning set out in Section
2.4(a);
"Trademark" shall mean the trademark "Retained Earth", as described
in
Schedule 3.9(A), which shall be included in the Specified
Assets.
1.2.
Construction. In construing this Agreement, the following
principles
shall be followed:
(a) the terms "herein," "hereof," "hereby," and "hereunder," or
other
similar terms, refer to this Agreement as a whole and not only to
the
particular Article, Section or other subdivision in which any such
terms
may
be employed;
(b) references to Articles, Sections, and other subdivisions refer
to
the
Articles, Sections, and other subdivisions of this Agreement;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) no consideration shall be given to the captions of the
articles,
sections, subsections, or clauses, which are inserted for
convenience in
locating the provisions of this Agreement and not as an aid in
its
construction;
(e) examples shall not be construed to limit, expressly or by
implication, the matter they illustrate;
(f) the word "includes" and its syntactical variants mean
"includes,
but
is not limited to" and corresponding syntactical variant
expressions;
(g) a defined term has its defined meaning throughout this
Agreement,
regardless of whether it appears before or after the place in
this
Agreement where it is defined;
(h) the plural shall be deemed to include the singular, and
vice
versa;
(i) each exhibit, attachment, and schedule to this Agreement is a
part
of
this Agreement, but if there is any conflict or inconsistency
between
the
main body of this Agreement and any exhibit, attachment, or
schedule,
the
provisions of the main body of this Agreement shall prevail;
and
-7-
<PAGE>
(j) the phrases "set forth in", "described in" and "included in"
an
identified Schedule means expressly referred to or contained in
the
identified Schedule.
ARTICLE II
THE ACQUISITION
2.1.
Agreement to Purchase and Sell. Upon the terms and subject to
the
conditions of this Agreement, Seller hereby agrees to sell, convey,
transfer,
assign and deliver to Buyer, and Buyer hereby agrees to purchase
from Seller, at
the Closing, all of the Specified Assets, free and clear of all
Encumbrances,
and to assume the Specified Liabilities. Buyer shall not assume and
shall have
no liability for the Excluded Liabilities, which Excluded
Liabilities shall be
retained by Seller.
2.2.
Excluded Assets. Other than the assets of Seller expressly
defined
herein as Specified Assets, the assets of Seller (collectively, the
"Excluded
Assets") are not part of the sale and purchase contemplated
hereunder, are
excluded from the Specified Assets and shall remain the property of
Seller after
the Closing. Without limiting the generality of the foregoing, the
following
assets shall be specifically excluded from the transactions
contemplated hereby
and shall be considered part of the Excluded Assets:
(a) Soundwall forms and other assets utilized in the soundwall
business;
(b) Any right, title or interest of Seller in any real
property,
including but not limited to such real property located in the
state of
Colorado ("Real Property");
(c) All cash in Seller's possession as of the Closing Date,
including
without limitation all such cash attributable to the Business;
(d) Seller's accounts receivable as of the Closing Date;
(e) (i) All assets held under any "employee benefit plan" (as
defined
in
section 3(3) of ERISA) currently or heretofore maintained or
contributed
to
by Seller or any Affiliates of Seller; and (ii) contracts and
obligations requiring the maintenance of or contribution to any
such
employee benefit plan;
(f) All current
or deferred income Taxes and all Seller's claims for
refunds of Taxes and other similar governmental charges or
assessments
pertaining to the Pre-Closing Date Period or which do not relate to
the
Specified Assets;
(g) Any books
and records of Seller that Seller is required by law to
retain; provided that Seller shall provide Buyer with copies of
such
retained books and records that relate to the Business or any of
the
Specified Assets;
(h) All of Seller's right, title and interest in and to any
contract
exclusively associated with, as well as the assets (including
associated
books and records) exclusively used in connection with, the T-Rex
I-25
Project (Seller's Project Reference No. G70012 and No. G70042), in
Denver,
Colorado;
-8-
<PAGE>
(i) Seller's books and records associated with the Project Ref.
No.
STP-1482(1)(2), Clearfield 200 South, Utah Department of
Transportation, in
Clearfield, UT;
(j) All of Seller's rights, title and interest in and to any
bonds
issued on Seller's behalf, including but not limited to bid,
performance
and
payment bonds;
(k) All of Seller's rights pursuant to this Agreement and the
instruments delivered hereunder; and
(l) Any names or marks utilized by Seller in the conduct of its
business, other than the Trademark.
2.3.
Excluded Liabilities. For purposes of this Agreement, the term
"Excluded Liabilities" shall mean all liabilities and obligations
of Seller
(other than the Specified Liabilities), known or unknown, direct or
contingent,
choate or inchoate, arising out of, based upon, or relating to any
event,
condition, circumstance, act or omission occurring or existing
before, on or
after the Closing Date. Without limiting the generality of the
foregoing, the
Excluded Liabilities shall include:
(a) subject to Buyer's obligation to mitigate liabilities arising
out
of
the Specified Contracts by Buyer's commercially reasonable efforts,
all
liabilities and obligations of Seller arising out of, based upon
or
resulting from, (i) any Environmental Law or any Environmental
Claim
against Seller or the Business, (ii) Seller's operations of the
Business
(including Seller's operation of the Business on or at third-party
sites),
and
(iii) any act, omission, occurrence, event, condition or
circumstance
occurring or existing at any time on or before the Closing Date
and
involving or related to the Specified Assets or the Business;
(b) all liabilities and obligations arising out of the Excluded
Assets;
(c) subject to Buyer's obligation to mitigate liabilities arising
out
of
the Specified Contracts by Buyer's commercially reasonable actions,
all
liabilities and obligations attributable to Seller's errors,
omissions and
misrepresentations prior to the Closing Date which directly relate
to the
Specified Assets or the Specified Contracts, subject to the last
sentence
of
this Section 2.3.
Notwithstanding anything to the contrary in this Agreement, Seller
shall have no
liability with respect to any variance between job cost estimates
with respect
to any of the Specified Contracts and the actual cost of performing
any of the
Specified Contracts, except to the extent Seller's job cost
estimates (as
reflected in the Geotech job-by-job analysis included in Schedule
3.10 (B)(I) as
of the date of its preparation) are patently unreasonable (as
proven by Buyer
through clear and convincing evidence) or intentionally
inaccurate.
2.4.
Total Consideration.
(a) Amount. Subject to adjustment in accordance with Section 2.5,
the
amount payable in consideration of the sale, transfer,
conveyance,
assignment and delivery by Seller of the Specified Assets, and
payment for
Seller's assumption of obligations under the Noncompetition
Agreement (in
addition to Buyer's assumption of
-9-
<PAGE>
the
Specified Liabilities) (the "Total Consideration") shall be equal
to
the
sum of (i) Four Million United States dollars (U.S.$ 4,000,000),
and
(ii)
the Closing Date Net Asset Value.
(b) Payment Terms. At
the Closing, Buyer will pay to Seller, in
immediately available funds in accordance with wiring instructions
to be
provided by Seller to Buyer at least five (5) Business Days prior
to the
Closing Date, an amount (the "Estimated Total Consideration") equal
to the
sum
of (i) Four Million United States dollars (U.S.$4,000,000) and (ii)
the
Estimated Net Asset Value.
2.5.
Adjustment. The Estimated Total Consideration paid to Seller
pursuant
to Section 2.4(b) shall be adjusted to equal the Total
Consideration payable to
Seller pursuant to Section 2.4(a) as follows: (a) If the Closing
Date Net Asset
Value shall be less than the Estimated Net Asset Value, the amount
paid as
Estimated Total Consideration shall be reduced by such deficit, on
a
dollar-for-dollar basis, and Seller shall pay such amount as set
forth in
Section 2.6. (b) If the Closing Date Net Asset Value shall be
greater than the
Estimated Net Asset Value, the amount paid as Estimated Total
Consideration
shall be increased by such excess, on a dollar-for-dollar basis,
and Buyer shall
pay such amount as set forth in Section 2.6. The amount by which
the amount paid
as Estimated Total Consideration shall be increased or decreased
pursuant to
this Section 2.5 shall be the "Adjustment Amount".
2.6.
Net Assets.
(a) As promptly as practical after the Closing Date and receipt
by
Buyer of the necessary information, books and accounts, but in no
event
later than twenty (20) days thereafter, Buyer shall cause the
preparation
of,
and deliver to Seller, a statement of the Closing Date Net Asset
Value
(the
"Statement"), together with Buyer's calculations of the
Adjustment
Amount, and shall be accompanied by the payment of any portion of
the
Adjustment Amount which Seller (or Buyer) does not dispute is owed
to Buyer
(or
Seller). Seller shall have the right to cause the preparation of
the
Statement in the event of Buyer's failure to perform its obligation
under
this Section 2.6(a).
(b) The Statement and Buyer's (or Seller's) calculation of the
Adjustment Amount shall become final and binding on Seller and
Buyer on the
20th
day following the date Buyer (or Seller) delivers the Statement
and
Buyer's (or Seller's) calculation of the Adjustment Amount (the
"Dispute
Deadline Date"), unless prior to the Dispute Deadline Date Seller
(or
Buyer) delivers notice to Buyer (or Seller) of its disagreement.
Such
notice shall set forth all of the disputed items together with
proposed
changes thereto, including an explanation in reasonable detail of
the basis
of
proposed changes, and shall be accompanied by the payment of any
portion
of
the Adjustment Amount which Seller (or Buyer) does not dispute is
owed
to
Buyer (or Seller).
(c) If Seller (or Buyer) has delivered a timely notice of
disagreement, then Buyer and Seller shall use their good faith
efforts to
reach written agreement on the disputed items (in which case, such
mutual
agreement shall be conclusive as to the value of the Adjustment
Amount). If
all
of the disputed items have not been resolved by Buyer and Seller by
the
30th
day following receipt by Buyer (or Seller) of the notice of
-10-
<PAGE>
disagreement, then the disputed items shall be submitted to the
Neutral
Accountants for binding arbitration within twenty (20) days after
the end
of
the foregoing 20-day period. The Neutral Accountants shall
complete
their determination of the Adjustment Amount within fifteen (15)
days from
submission of the dispute, unless Buyer and Seller agree otherwise.
The
fees
and expenses of such arbitration shall be borne 50% by Seller and
50%
by
Buyer, except that if the arbitrators determine that either
party
proceeded to arbitration in bad faith, or acted in bad faith during
the
course of the arbitration proceeding, then all expenses of such
arbitration, plus interest at a rate of 1 1/2% per month on such
unpaid
portion of the Adjustment Amount, calculated from the Closing Date
until
the
date of actual payment, shall be paid by the party that is
determined
to
have acted in bad faith. For purposes of this provision, a
party's
failure to remit any portion of the Adjustment Amount which such
party does
not,
in good faith, dispute is owed to the other party shall be
considered
"bad
faith". The determination of the Closing Date Net Asset Value and
the
Adjustment Amount by such arbitration shall be final and binding
upon the
parties. Seller (or Buyer) shall pay the balance of the Adjustment
Amount
not
yet paid within five (5) Business Days from the date of
determination
of
the Adjustment Amount either by agreement of the parties or by
the
Neutral Accountants.
(d) The Statement shall be prepared from Seller's books and records
in
accordance with GAAP, applied on a consistent basis.
2.7.
Allocation of Total Consideration. Seller and Buyer agree to
allocate
the Total Consideration (together with the Specified Liabilities)
for the
Specified Assets and the obligations under the Noncompetition
Agreement, as set
forth on Schedule 2.7 (the "Allocation of Total Consideration").
The Allocation
of Total Consideration shall be completed in the manner required by
Code Section
1060. Seller and Buyer further agree to comply with all filing,
notice and
reporting requirements described in Code Section 1060 and the
Treasury
Regulations promulgated thereunder, including the timely
preparation and filing
of Forms 8594 based on the Allocation of Total Consideration.
Seller and Buyer
hereby agree that they will report the federal, state, foreign and
other tax
consequences of the transactions contemplated by this Agreement in
a manner
consistent with the Allocation of Total Consideration.
2.8.
Receipts After Closing. After the Closing, Seller may receive
funds,
proceeds, contributions, refunds, rebates, payments or receipts
that are
attributable to the Specified Assets and are properly allocable to
Buyer under
the terms of this Agreement. Seller agrees to remit or cause to be
remitted any
of the foregoing to Buyer, within five (5) Business Days of receipt
thereof.
Buyer agrees to remit to Seller within five (5) Business Days of
receipt
thereof, any funds, proceeds, contributions, rebates, payments or
receipts that
are attributable to the Excluded Assets and are properly allocable
to Seller
under the terms of this Agreement. If Seller receives any invoices
(not used in
the determination of the Adjustment Amount) after Closing properly
allocable to
work in progress included in the Specified Assets, Buyer shall
either pay such
invoice directly or remit to Seller within five (5) Business Days
of receipt
thereof, the amount of such invoices.
-11-
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer the following:
3.1.
Corporate Existence and Qualification. Seller is a corporation
duly
organized, validly existing and in good standing under the laws of
the state of
Pennsylvania and is duly qualified to do business and is in good
standing as a
foreign corporation in each jurisdiction necessary to consummate
the
transactions contemplated under this Agreement, as set forth in
Schedule 3.1.
Seller has the corporate power to own, operate and lease its
properties and to
carry on its business as presently conducted.
3.2.
Power and Authority; Enforceability. Seller has all requisite
corporate power and authority to enter into this Agreement and all
other
documents to be entered into by Seller in connection with the
consummation of
the transactions contemplated hereby and to perform its obligations
hereunder
and thereunder. This Agreement and all other documents entered into
by Seller in
connection with the consummation of the transactions contemplated
hereby have
been duly authorized, executed and delivered on behalf of Seller
and, assuming
due authorization, execution and delivery by Buyer, constitute the
legal, valid
and binding obligations of Seller enforceable in accordance with
their
respective terms, except that (a) such enforcement may be limited
by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to
or affecting
creditors' rights generally and (b) the remedy of specific
performance and
injunction and other forms of equitable relief may be subject to
equitable
defenses and to the discretion of the court before which any
proceeding
therefore may be brought.
3.3.
No Conflict. The execution, delivery, and performance of this
Agreement by Seller and the consummation by it of the transactions
contemplated
hereby do not and will not (a) violate or breach the certificate
of
incorporation or by-laws (or equivalent organizational documents)
of Seller, (b)
violate or breach any Applicable Law or Permit binding upon Seller,
(c) except
as set forth in Schedule 3.3, result in any breach of, or
constitute a default
(or event which with the giving of notice or lapse of time, or
both, would
become a default) under, or give to any other Person any rights of
termination,
amendment, or cancellation of, any Specified Contract or any other
contract to
which Seller is a party, or acceleration of any obligation of
Seller thereunder,
or result in the creation of any Encumbrance on any of the
Specified Assets
pursuant to any note, bond, mortgage, indenture, contract,
agreement, lease,
license, Permit, franchise or other instrument relating to the
Specified Assets
to which Seller is a party or by which any of the Specified Assets
is bound or
affected.
3.4.
Consents, Approvals and Permits. No consent, approval,
authorization,
license, order or permit of, or declaration, filing or registration
with, or
notification to, any Governmental Entity, or any other Person
(including without
limitation any Customer), is required to be made or obtained by
Seller in
connection with the execution, delivery and performance of this
Agreement and
consummation of the transactions contemplated hereby, except as set
forth on
Schedule 3.4. Seller holds all Permits listed on Schedule 3.4, and
such Permits
are all Permits necessary or required for Seller's conduct of the
Business,
except as indicated in Schedule 3.4. All of such Permits are in
full force and
effect and Seller is in substantial compliance with each such
Permit, except as
set forth in Schedule 3.4. Except as disclosed in Schedule 3.4, no
notice
-12-
<PAGE>
has been received by Seller and no Proceeding is pending or
threatened with
respect to any alleged failure by Seller to have any such Permit or
not to be in
compliance therewith. Except as set forth on Schedule 3.4, no event
has occurred
and is continuing which requires, or after notice or lapse of time
or both would
require, any modification or termination of any such Permit held by
Seller.
Notwithstanding the foregoing, all Environmental Permits shall be
governed also
by Section 3.14.
3.5.
Statements.
(a) Specified Assets and Liabilities. Schedule 3.5(A) sets forth
the
Specified Assets and the Specified Liabilities.
(b) Financial Information. To Seller's knowledge, Seller has
provided
to
Buyer true and correct copies of all financial schedules requested
by
Buyer relating to the Specified Assets.
3.6.
Absence of Changes. Except as set forth in Schedule 3.6, since
December 31, 2005, there has been (a) no change in (i) the assets,
liabilities
or financial condition of the Business or (ii) the condition (other
than
financial) of the Specified Assets, other than, with respect to
clauses (i) and
(ii) hereof, changes in the ordinary course of business the effect
of which
changes has not caused, individually or in the aggregate, a
Material Adverse
Effect with respect to the Business or the Specified Assets; (b) no
damage,
destruction or loss, whether or not covered by insurance, having a
Material
Adverse Effect with respect to the Business or the Specified
Assets; (c) no
labor dispute that has caused, individually or in the aggregate, a
Material
Adverse Effect with respect to the Business; (d) no transfer of any
intellectual
property rights relevant to the Business: (e) no mortgage or pledge
of any
assets of the Business other than pursuant to that certain Amended
and Restated
Revolving Credit and Security Agreement, dated May 5, 2005, entered
into by
Seller and certain of its Affiliates, as Borrowers, and PNC Bank,
National
Association and other lenders party thereto, as subsequently
amended ("Seller's
Credit Agreement"); (f) no motion, order, brief, settlement
agreement or other
papers filed in any Proceeding; (g) no change in the manner in
which the books
of account relating to the Business or the Specified Assets have
been maintained
nor any change in any of its accounting methods or practices; (h)
no claim has
been filed or reasonably anticipated to be filed which claims would
have a
Material Adverse Effect with respect to the Business or the
Specified Assets, or
(i) no agreement or commitment of do any of the foregoing.
3.7.
Title to Properties. Seller has good and merchantable title to all
of
the Specified Assets, free of any Encumbrances, subordination or
adverse claim,
except as set forth in Schedule 3.7, or for such imperfections of
title and
Encumbrances as do not individually or in the aggregate materially
detract from
the value of the Specified Assets or have a Material Adverse Effect
with respect
to the Business.
3.8.
Litigation, Judgments, Etc. Except as set forth in Schedule 3.8,
there
are no Proceedings pending or, to the Knowledge of Seller,
threatened (excluding
any rulemaking, investigation or similar proceeding of general
applicability and
any appeal or petition for review relating thereto) to which Seller
is a party
that involves the Business or any of the Specified Assets, and
Seller is not
subject to any judgment, order, writ, injunction, decree,
consent,
-13-
<PAGE>
stipulation or award of or any agreement with any Governmental
Entity or
arbitrator having jurisdiction over it which, individually or in
the aggregate,
would reasonably be expected to have a Material Adverse Effect with
respect to
the Business or the Specified Assets. Seller has not received any
notice of
default or violation and, to its Knowledge, except as set forth in
Schedule 3.8,
Seller is in substantial compliance with any judgment, order, writ,
injunction,
decree, consent, stipulation, award or agreement applicable to it
of any
Governmental Entity or arbitrator having jurisdiction over it with
respect to
the Business or the Specified Assets.
3.9.
Intellectual Property and IT.
(a) IP Rights. Schedule 3.9(A) sets forth a list of all
patents,
patent applications, trademarks (whether registered or not),
trademark
applications, trade names, copyrights, patent or know-how licenses
(wherein
Seller is either licensee or licensor) or other intellectual
property
rights exclusively used in the ordinary course of the Business
(the
"Specified IP Rights").
(b) IT Assets. Schedule 3.9(B) sets forth a list of all
hardware,
software, systems, licenses, agreements or other information
technology
assets which are exclusively used in the ordinary course of the
Business
(the
"IT Specified Assets").
(c) Documents and Information. To Seller's Knowledge (including
Knowledge after having made diligent inquiry), Seller has delivered
to
Buyer complete and accurate copies of all documents and information
of
material significance related to rights of Seller in the Data,
the
Specified IP Rights and the IT Specified Assets, or the use or
exploitation
thereof.
(d) Claims. Except as set forth on Schedule 3.9(D) and to
Seller's
Knowledge (including Knowledge after having made diligent inquiry):
(i)
there is no unauthorized use, infringement, or misappropriation of
any of
the Data, any of the
Specified IP Rights or any of the IT Specified Assets
by
any Person; and (ii) none of the Data, the Specified IP Rights or
the IT
Specified Assets infringe or have infringed any intellectual
property right
of
any third party. Seller is not subject to any confidentiality
obligation
with
respect to trade secrets, know-how or other materials related to
the
Data, the Specified IP Rights and the IT Specified Assets. Seller
has not
received notice of breach or default with regard to, and to
Seller's
Knowledge (including Knowledge after having made diligent inquiry),
Seller
is
not in breach in any material respect of, any agreement,
commitment,
contractual understanding, license, sublicense, assignment, or
indemnification which relates to any of the Data, the Specified IP
Rights
or
the IT Specified Assets and have not taken, or failed to take,
any
action that would preclude or hinder the protection or enforcement
of the
Data, the Specified IP Rights or the IT Specified Assets.
(e) Validity, etc. Except as set forth in Schedule 3.9(E): (i)
the
Specified IP Rights are in good standing and, to the Knowledge of
Seller,
are
valid and enforceable; (ii) all registrations for copyrights,
patent
rights and trademarks identified in Schedule 3.9(A) are in full
force and,
to
the Knowledge of Seller (including Knowledge after having made
diligent
inquiry), valid and all applications to register any
unregistered
copyrights, patent rights or trademarks so identified are pending
and in
good
standing, all
-14-
<PAGE>
without challenge by any third party; and (iii) except for the
Fosmart
Marks, Seller has the sole and exclusive right to bring actions
for
infringement, misappropriation or unauthorized use of the Specified
IP
Rights, and, to the Knowledge of Seller, there is no basis for any
such
action. Copies of all registrations or current applications
relating to the
Specified IP Rights identified in Schedule 3.9(A) have been made
available
to
Buyer.
(f) Right to Transfer. Without limiting the generality of other
provisions of this Agreement and except for the Fosmart Marks as
indicated
in
Schedule 3.9(E), Seller has good and merchantable title to, or
the
unrestricted license to use the Specified IP Rights and IT
Specified
Assets, free or any Encumbrances, subordination or adverse claims,
and has
the right to assign,
sell, transfer or convey such Specified IP Rights and
IT
Specified Assets as contemplated in this Agreement, including but
not
limited to the assignment of Specified IP Rights used by Seller in
the
Business pursuant to a license granted to Seller.
3.10. Contractual Obligations.
(a) General. Except as set forth in Schedules 3.10(A), Seller is
not a
party to any of the following, whether written or oral:
(i) confidentiality agreement related to the Business; or
(ii) agreement that purports to limit its freedom to compete
with
respect to the Business in any line of business or in any
geographic
area.
(b) Specified Contracts. With regard to the Specified
Contracts:
(i) Set forth on Schedule 3.10(B)(I) is (x) a list of all
contracts, agreements, leases and instruments (including all
amendments, supplements, and modifications thereto) included in
the
Specified Assets and to which Seller is a party or by which any of
the
Specified Assets is otherwise bound or affected, and (y) with
respect
to each Specified Contract with a Customer, such Customer's
address,
the contract amount, job name and other information with respect
to
such Specified Contract, including the Geotech job-by-job
analysis
report.
(ii) Each Specified Contract is a legal and valid agreement,
arrangement or commitment of Seller to which it is a party,
enforceable against Seller in accordance with its terms and is a
legal
and valid agreement, arrangement or commitment of each other
party
thereto, enforceable against such party in accordance with its
terms,
except in each case where enforceability may be limited by
bankruptcy,
insolvency or other similar laws affecting creditors' rights
generally
and except where enforceability is subject to the application
of
equitable principles or remedies or as would not have, individually
or
in the aggregate, a Material Adverse Effect with respect to Seller
or
the Business. Each Specified Contract with a Customer has been
duly
entered into by such Customer. True and complete copies of the
Specified Contracts have been delivered to or otherwise made
available
to Buyer, and the information regarding Customers and
-15-
<PAGE>
their Specified Contracts set forth in Schedule 3.10(B)(I) is true
and
correct in all material respects.
(iii) Except as set forth in Schedule 3.10(B)(II), Seller has
not
received any claim or notice of, and Seller otherwise has no
Knowledge
(including Knowledge after diligent inquiry) of any threatened
claim
or notice of, any breach, violation or default, and Seller is not
in
breach, violation or default, or but for a requirement that notice
be
given or that a period of time elapse or both, would be in
breach,
violation or default, under any Specified Contract which defaults,
in
each case, individually, or in the aggregate, would reasonably
be
expected
to have a Material Adverse Effect with respect to the
Business. Seller has complied in all material respects with all
commitments and obligations under each such Specified Contract
to
which it is a party. Any designs, drawings and engineering work
performed by Seller under any Specified Contract are free from
errors
or omissions.
(iv) Seller has no Knowledge (including Knowledge after
diligent
inquiry) of any breach, violation or default of any obligation to
be
performed by any other party to any Specified Contract to which
Seller
is a party or any other contract pursuant to which any of the
Specified Assets is otherwise bound or affected.
3.11. Taxes. Except as set forth in Schedule 3.11, (i) all Returns
required
to be filed by or on behalf of Seller on or before the Closing Date
with respect
to the Business or the Specified Assets have been duly filed on a
timely basis,
(ii) such Returns are true, complete and correct, (iii) all Taxes
which were
shown to be due on such Returns or on subsequent assessments with
respect
thereto have been paid in full on a timely basis, and (iv) no other
Taxes, to
Seller's Knowledge (including Knowledge after diligent inquiry),
are payable by
Seller with respect to items or periods covered by such Returns
(whether or not
shown on or reportable on such Returns) or with respect to the
Pre-Closing Date
Period; provided, however, that the representations and warranties
set forth in
this Section 3.11 are made only to the extent that they relate to
(i) Taxes that
are or may become liens on the Specified Assets or (ii) are Taxes
for which
Buyer is or may be liable as a transferee, successor, purchaser or
in a similar
capacity with respect to the Specified Assets. There are no liens
for Taxes
(other than for Taxes not yet due and payable) upon the Specified
Assets.
3.12. Employment Matters. Schedule 3.12(A) is a complete and
accurate list,
as of the Effective Date, of all employees of Seller who devote
their time and
effort exclusively to the operation of the Specified Assets and the
conduct of
the Business, but excluding Mr. Duane Hanlon, Mr. Peter Blunt, Mr.
Nicholas
Santucci and Mr. Alec Bloem (the "Business Employees"), and such
schedule lists
their respective names, positions, current compensation (including
salaries,
wages, commissions, bonuses and other payments), and dates of
employment. Seller
is not (i) a party to, or bound by, any collective bargaining
agreement or any
other labor agreement covering or relating to any Business
Employee, (ii) in
receipt of any demand for recognition by, and has not recognized,
any labor
organization as the exclusive bargaining representation of any
Business
Employee, (iii) a party to, or bound by, any contract for the
employment of any
Business Employee, or (iv) the subject of any Proceeding
asserting
-16-
<PAGE>
that Seller has committed an unfair labor practice or is seeking to
compel it to
bargain with any labor organization as to wages or conditions of
employment with
respect to any Business Employee. Each employee benefit plan
program, policy or
other benefit ("Benefit Plan") maintained, sponsored, participated
in or
contributed to by Seller for the benefit of any Business Employee
has been
operated and administered in all material respects in accordance
with its terms
and Applicable Laws, including but not limited to ERISA and the
Code. There is
no current or pending investigation or audit by the Internal
Revenue Service,
the Department of Labor or any other Governmental Entity of any
such Benefit
Plan. There are no actions, suits or claims pending (other than
routine claims
for benefits) or, to the Knowledge of Seller, threatened with
respect to any
such Benefit Plan or against the assets of any such Benefit
Plan.
3.13. Insurance. Schedule 3.13 sets forth a description (including
without
limitation the issuers of and the amounts of coverage) of (a) all
insurance
policies which are owned or maintained by Seller or its Affiliates
with respect
to the Specified Assets or the Business and (b) all insurance
certificates
issued on Seller's behalf or at Seller's request with respect to
the Business.
All of such insurance policies are in full force and effect, and
all premiums
therefore payable for periods prior to the Closing Date have been
fully paid.
Except as set forth in Schedule 3.13, no notice of cancellation of,
or
indication of an intention not to renew, any such insurance policy
has been
received by Seller.
3.14. Environmental Matters. Except as set forth in Schedule 3.14,
(a)
Seller has obtained all Environmental Permits that have been or are
required in
connection with the Business, (b) Seller has been, and Seller is,
in substantial
compliance with all terms and conditions of all requirements of
Environmental
Law and Environmental Permits applicable to or required in
connection with the
Business, (c) Seller has not received any written notice from a
Governmental
Entity of any actual or alleged violation or liability arising
under any
requirements of such Environmental Law or Environmental Permits,
(d) no
Environmental Claims are threatened or are presently pending
against Seller
relating to the Specified Assets or to present or past operations
of the
Business and (e) to the Knowledge of Seller no condition or set of
facts or
circumstances exists that could reasonably be expected to give rise
to an
Environmental Claim against Seller or Buyer relating to the
Specified Assets or
to present or past operations of the Business. To Seller's
Knowledge (including
Knowledge after having made diligent inquiry) and except as set
forth in
Schedule 3.14, Seller has identified and made available to Buyer
every
environmental investigation, study, audit, test and other analysis
conducted by
or for or in the possession of Seller or the Business in relation
to the
Specified Assets, the Business, or any existing or potential
Environmental Claim
or liability under Environmental Law with respect to the Business
or the
Specified Assets.
3.15. Condition of Assets. With respect to the physical condition
and
location of the tangible Specified Assets, the tangible Specified
Assets are
being sold on an "AS IS WHERE IS" basis.
3.16. Accurate and Complete Records; Customer Information. Copies
of the
books, ledgers, and financial records of the Business for the
period of time
which is not less than three years prior to the Effective Date or
any such
longer period of maintenance or retention as may be required by
Applicable Laws
have been made available or provided to Buyer. Without limiting the
generality
of the foregoing, copies of all material written information and
documentation
in
-17-
<PAGE>
Seller's possession or under Seller's control relating to the
Specified
Contracts with Customers or the Business (collectively, "Customer
Information")
have been made available to or provided to Buyer; and such Customer
Information
is accurate and complete and does not contain any material
discrepancies.
3.17. Brokerage Arrangements. Seller has not entered (directly
or
indirectly) into any agreement with any person, firm or corporation
that would
obligate Buyer to pay any commission, brokerage or "finder's fee"
in connection
with the transactions contemplated herein.
3.18. No Misleading Statements. The representations and warranties
of
Seller contained in this Agreement, the Schedules and all other
certificates and
documents delivered at the Closing to Buyer and its representatives
in
connection with the transactions contemplated by this Agreement do
not and will
not include any untrue statement of a material fact and do not and
will not omit
to state any material fact necessary to make the statements made
not misleading.
3.19. Sufficiency of Properties, Assets and Employees. Except as
set forth
in Schedule 3.19, the Specif
