EXHIBIT 2.1
FINAL
EXECUTION VERSION
STOCK AND ASSET PURCHASE AGREEMENT
BY AND BETWEEN
AAG OPCO CORP.
AND
DANA CORPORATION
Dated as of July 8, 2004
TABLE OF CONTENTS
-----------------
<TABLE>
Page
----
RECITALS..........................................................................................................1
ARTICLE I THE PURCHASE AND
SALE........................................................................1
Section 1.1. Purchase and Sale of
Shares............................................................1
Section 1.2. Purchase and Sale of the Purchased
Assets..............................................1
Section 1.3. Excluded
Assets........................................................................3
Section 1.4. Assumed
Liabilities....................................................................5
Section 1.5. Excluded
Liabilities...................................................................6
ARTICLE II
CONSIDERATION................................................................................8
Section 2.1. Amount and Form of
Consideration.......................................................8
Section 2.2. Payment of Cash
Consideration..........................................................8
Section 2.3. Purchase Price
Adjustment..............................................................8
Section 2.4. Allocation of
Consideration...........................................................10
ARTICLE III THE
CLOSING.................................................................................11
Section 3.1. Closing
Date..........................................................................11
Section 3.2. Deliveries by Seller to
Purchaser.....................................................11
Section 3.3. Deliveries by Purchaser to
Seller.....................................................13
Section 3.4. Proceedings at
Closing................................................................13
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
SELLER....................................................14
Section 4.1. Organization and Good
Standing........................................................14
Section 4.2. Capital Structure of Purchased
Companies..............................................14
Section 4.3. Subsidiaries and Transferred
JVs......................................................15
Section 4.4. Authorization of
Agreement............................................................16
Section 4.5. No Conflicts; Consents of Third
Parties...............................................16
Section 4.6. Financial
Statements..................................................................17
Section 4.7. Material Adverse
Changes..............................................................18
Section 4.8.
Taxes.................................................................................19
Section 4.9. Real
Property.........................................................................20
Section 4.10. Tangible Personal
Property............................................................22
Section 4.11. Intellectual
Property.................................................................22
Section 4.12.
Contracts.............................................................................22
Section 4.13. Employee
Benefits.....................................................................25
Section 4.14.
Labor.................................................................................27
Section 4.15.
Litigation............................................................................28
Section 4.16. Compliance with Other Laws;
Permits...................................................28
Section 4.17. Environmental
Matters.................................................................29
Section 4.18. Ownership of Necessary Assets and
Rights..............................................29
Section 4.19. Product
Liability.....................................................................29
Section 4.20. Affiliate
Transactions................................................................30
</TABLE>
<TABLE>
Page
----
Section 4.21. Customers and
Suppliers...............................................................30
Section 4.22.
Brokers...............................................................................30
Section 4.23. No Other Representations or
Warranties................................................30
ARTICLE V REPRESENTATIONS AND WARRANTIES OF
PURCHASER.................................................31
Section 5.1. Organization and Good
Standing........................................................31
Section 5.2. Authorization of
Agreement............................................................31
Section 5.3. No Conflicts; Consents of Third
Parties...............................................31
Section 5.4.
Litigation............................................................................32
Section 5.5.
Financing.............................................................................32
Section 5.6. Purchaser
Status......................................................................32
Section 5.7.
Brokers...............................................................................32
Section 5.8. Independent
Assessment................................................................33
Section 5.9. No Other Representations or
Warranties................................................33
ARTICLE VI COVENANTS OF
SELLER.........................................................................33
Section 6.1. Access to Documents; Opportunity to Ask
Questions.....................................33
Section 6.2. Conduct of
Business...................................................................34
Section 6.3. Consents and
Conditions...............................................................37
Section 6.4. Public
Statements.....................................................................38
Section 6.5.
Confidentiality.......................................................................38
Section 6.6. Intercompany
Accounts.................................................................39
Section 6.7. Litigation
Support....................................................................39
Section 6.8. Further
Actions.......................................................................39
Section 6.9. Acquisition
Proposals.................................................................39
Section 6.10. Acquisition
Financing.................................................................40
Section 6.11.
Affidavits............................................................................40
ARTICLE VII COVENANTS OF
PURCHASER......................................................................40
Section 7.1.
Confidentiality.......................................................................40
Section 7.2. Public
Statements.....................................................................41
Section 7.3. Consents and
Conditions...............................................................41
Section 7.4. Seller's Access to
Documents..........................................................43
Section 7.5. Further
Actions.......................................................................43
Section 7.6. Guarantees; Letters of
Credit.........................................................43
Section 7.7. Use of Seller's
Name..................................................................44
Section 7.8. Litigation
Support....................................................................46
Section 7.9. Bulk Sales
Law........................................................................46
ARTICLE VIII CONDITIONS PRECEDENT TO PURCHASER'S
OBLIGATIONS.............................................46
Section 8.1. Accuracy of Representations and
Warranties............................................46
Section 8.2. Performance of
Covenants..............................................................47
Section 8.3. Antitrust
Laws........................................................................47
Section 8.4. No
Injunctions........................................................................47
Section 8.5. Officer's
Certificate.................................................................47
</TABLE>
ii
<TABLE>
Page
----
Section 8.6. Debt
Financing........................................................................47
Section 8.7. Transferred Permits and Business
Contracts............................................48
ARTICLE IX CONDITIONS PRECEDENT TO SELLER'S
OBLIGATIONS................................................48
Section 9.1. Accuracy of Representations and
Warranties............................................48
Section 9.2. Performance of
Covenants..............................................................48
Section 9.3. Antitrust
Laws........................................................................48
Section 9.4. No
Injunctions........................................................................48
Section 9.5. Officer's
Certificate.................................................................48
ARTICLE X ADDITIONAL POST-CLOSING
COVENANTS...........................................................49
Section 10.1. Certain Employment
Matters............................................................49
Section 10.2. Transition Agreements; Ancillary
Agreements...........................................56
Section 10.3. Further Assurances; Further Conveyances
and Assumptions; Consent
of Third
Parties......................................................................56
ARTICLE XI SURVIVAL, INDEMNIFICATION AND RELATED
MATTERS...............................................58
Section 11.1.
Survival..............................................................................58
Section 11.2.
Indemnification.......................................................................60
Section 11.3. Procedures for
Indemnification........................................................62
Section 11.4.
Knowledge.............................................................................63
ARTICLE XII NONCOMPETITION;
NONSOLICITATION.............................................................63
Section 12.1.
Noncompetition........................................................................63
Section 12.2. Nonsolicitation of Purchaser
Employees................................................65
Section 12.3. Nonsolicitation of Seller
Employees...................................................65
Section 12.4.
Remedies..............................................................................65
ARTICLE XIII
TERMINATION.................................................................................66
Section 13.1.
Termination...........................................................................66
Section 13.2. Procedure and Effect of
Termination...................................................66
ARTICLE XIV TAX
MATTERS.................................................................................67
Section 14.1. Tax
Indemnification...................................................................67
Section 14.2. Preparation and Filing of Tax
Returns.................................................67
Section 14.3. Refunds, Credits and
Carrybacks.......................................................68
Section 14.4. Tax
Contests..........................................................................69
Section 14.5.
Cooperation...........................................................................69
Section 14.6. Tax
Benefits..........................................................................70
Section 14.7. Tax Treatment of Indemnification
Payments.............................................70
Section 14.8. Section 338(g)
Elections..............................................................70
Section 14.9. Transfer Taxes and
VAT................................................................71
Section 14.10. Section 338(h)(10)
Elections..........................................................72
Section 14.11. UK Degrouping
Charge..................................................................72
</TABLE>
iii
<TABLE>
Page
----
ARTICLE XV
MISCELLANEOUS...............................................................................73
Section 15.1. Certain
Definitions...................................................................73
Section 15.2. Entire
Agreement......................................................................85
Section 15.3. Governing
Law.........................................................................85
Section 15.4.
Jurisdiction..........................................................................85
Section 15.5.
Expenses..............................................................................86
Section 15.6. Table of Contents and
Headings........................................................86
Section 15.7.
Notices...............................................................................86
Section 15.8.
Severability..........................................................................87
Section 15.9. Binding Effect; No Third-Party
Beneficiaries; No Assignment...........................87
Section 15.10.
Amendments............................................................................88
Section 15.11.
Waiver................................................................................88
Section 15.12.
Counterparts..........................................................................88
EXHIBITS
--------
Exhibit A -- Description of the Business
Exhibit B -- Form of Bill of Sale
Exhibit C -- Form of Special Warranty
Deed
Exhibit D -- Form of Real Property Lease
Assignment
Exhibit E -- Form of Intellectual
Property Assignment
Exhibit F -- Form of Assignment and
Assumption Agreement
Exhibit G -- Form of Transition
Intellectual Property License Agreement
Exhibit H -- Form of Transition Services
Agreement
Exhibit I -- Schedule of Ancillary
Agreements
Exhibit J -- Form of Evidence of
Transfer
</TABLE>
iv
STOCK AND ASSET PURCHASE AGREEMENT
STOCK AND ASSET PURCHASE AGREEMENT, dated as of July 8,
2004 (this
"AGREEMENT"), by and between AAG Opco Corp., a Delaware corporation
("PURCHASER"), and Dana Corporation, a Virginia corporation
("SELLER").
Unless otherwise indicated, capitalized terms used herein
have the
respective meanings set forth in Section 15.1.
RECITALS
WHEREAS, Seller and its Subsidiaries are, among other
things, engaged
through Seller's Automotive Aftermarket Group in the manufacture
and
distribution of automotive aftermarket components in North America,
Europe, Asia
and South America, as described in Exhibit A (the "BUSINESS"); and
WHEREAS, upon the terms and subject to the conditions
hereinafter set
forth, the parties desire that Seller and its Subsidiaries sell,
assign and
transfer to Purchaser, and that Purchaser purchase and acquire from
Seller and
its Subsidiaries, all of the right, title and interest of Seller
and its
Subsidiaries in and to the Purchased Shares and the Purchased
Assets, and that
Purchaser assume the Assumed Liabilities.
NOW, THEREFORE, in consideration of the foregoing and the
respective
representations, warranties, covenants and agreements hereinafter
set forth, and
for other good and valuable consideration, the receipt and
sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
THE PURCHASE AND SALE
Section 1.1. Purchase and Sale of Shares. On the terms and
subject to
the conditions set forth herein, at the Closing, Seller shall sell
and deliver,
or cause one or more of its Subsidiaries to sell and deliver, to
Purchaser, and
Purchaser shall purchase, acquire and accept from Seller, or the
applicable
Subsidiary or Subsidiaries of Seller, legal and beneficial
ownership of (a) all
of the issued and outstanding capital stock (the "PURCHASED ENTITY
SHARES") of
each of the Persons on Schedule 1.1(a) (each, a "PURCHASED ENTITY"
and,
collectively, the "PURCHASED ENTITIES") and (b) the issued and
outstanding
equity interests held by Seller or its Subsidiaries (the "PURCHASED
VENTURE
SHARES" and together with the Purchased Entity Shares, the
"PURCHASED SHARES")
of each of the Persons on Schedule 1.1(b) (each, a "PURCHASED
VENTURE" and
together with the Purchased Entities, the "PURCHASED COMPANIES" and
collectively
with their Subsidiaries, the "ACQUIRED COMPANIES"), in each case
free and clear
of any Lien other than pursuant to any certificate or articles of
incorporation,
bylaws or similar organizational documents of any Acquired
Companies.
Section 1.2. Purchase and Sale of the Purchased Assets.
Except as set
forth on Schedule 1.2(a), on the terms and subject to the
conditions set forth
herein, and subject to the exclusions set forth in Section 1.3, at
the Closing,
Seller shall sell, assign, transfer, convey and deliver,
or cause one or more of its Subsidiaries (other than an Acquired
Company) to
sell, assign, transfer, convey and deliver to Purchaser, and
Purchaser shall
purchase, acquire and accept from Seller, or the applicable
Subsidiary or
Subsidiaries of Seller (other than an Acquired Company), all of the
right, title
and interest of Seller, or the applicable Subsidiary or
Subsidiaries of Seller
(other than an Acquired Company), in, to and under all of the
assets,
properties, rights, Contracts and claims of Seller, or such
Subsidiary or
Subsidiaries, wherever located, whether tangible or intangible,
real, personal
or mixed, in each case, Related to the Business, but excluding the
Excluded
Assets (collectively, the "PURCHASED ASSETS"), including by way of
example and
not limitation, all of the following assets, properties, rights,
Contracts and
claims of Seller or its Subsidiaries (other than an Acquired
Company):
(a) (i) the real property listed on Schedule 1.2(a)(i)
together with
any and all buildings, structures, improvements and fixtures
located
thereon (together with any of the foregoing owned by the
Acquired
Companies, the "OWNED REAL PROPERTY") and (ii) the real
property leases
listed on Schedule 1.2(a)(ii) and, to the extent covered by
such leases,
any and all buildings, structures, improvements and fixtures
located
thereon (together with any of the foregoing leased by the
Acquired
Companies, the "REAL PROPERTY LEASES");
(b) all machinery, equipment, furniture, automobiles,
trucks, tractors,
trailers, tools and other tangible personal property Related
to the
Business (collectively, the "PURCHASED EQUIPMENT");
(c) all inventories and supplies of raw materials,
works-in-process,
finished goods, spare parts, supplies, storeroom contents and
other
inventoried items Related to the Business;
(d) all trade accounts and notes receivable and other
receivables
(other than those associated with Seller's accounts
receivables
securitization program described on Schedule 1.2(d)) as of the
Closing Date
arising out of the sale or other disposition of goods or
services Related
to the Business;
(e) all deposits and prepayments Related to the Business
(other than
(i) any deposits made in connection with any Seller Employee
Benefit Plan
or, to the extent specifically provided otherwise herein, any
Acquired
Company Plan and (ii) deposits of cash or cash equivalents in
bank
accounts, prepaid insurance premiums, prepaid interest,
prepaid Taxes, or
refunds or credits of Excluded Taxes (except to the extent
such Tax items
are reflected as an asset in Final Closing Date Working
Capital));
(f) all rights and incidents of interests of, and benefits
accruing to,
Seller or any Subsidiary of Seller (other than an Acquired
Company) as of
the Closing Date in, to and under all Business Contracts,
including
personal property leases and all open purchase and sales
orders Related to
the Business;
(g) all Intellectual Property Related to the Business,
including the
Intellectual Property identified on Schedule 1.2(g), and all
rights
thereunder, including the right to
2
bring suit and recover for the past infringement thereof,
other than any
rights primarily related to any Existing Litigation
(collectively, the
"PURCHASED INTELLECTUAL PROPERTY");
(h) all books and records (other than Tax Returns) or true
and correct
copies thereof, including all computerized books and records,
and all
files, papers, tapes, disks, keys, correspondence, reports,
plans, drawings
and specifications, invoices, forms, customer records,
catalogs, sales,
promotional and advertising materials, technical data,
operating records,
operating manuals, instructional documents, employee files (to
the extent
permitted under applicable Law) for Transferred Employees and
other printed
or written materials, in each case, Related to the Business
and to the
extent available to Seller or its Subsidiaries;
(i) subject to Section 10.3(b), Permits Related to the
Business (such
Permits, the "TRANSFERRED PERMITS");
(j) all rights under or pursuant to all warranties,
representations and
guarantees, whether express or implied, made by suppliers,
manufacturers,
contractors and other third parties with respect to any of the
other
Purchased Assets, other than any of the foregoing that
primarily relate to
any Excluded Asset or Excluded Liability;
(k) all claims, defenses, causes of action, choses in
action, rights of
recovery, rights of set off, and rights of recoupment Related
to the
Business or primarily related to the Purchased Assets or
Assumed
Liabilities, other than any of the foregoing that primarily
relate to any
Excluded Asset or Excluded Liability;
(l) all equity interests held by Seller or any of its
Subsidiaries
(other than an Acquired Company) in the joint ventures
identified on
Schedule 1.2(l) (such equity interests being referred to as
the
"TRANSFERRED JV INTERESTS" and the joint ventures being
referred to as the
"TRANSFERRED JVS");
(m) assets held or set aside specifically to fund any
liabilities
assumed pursuant to Section 10.1 and Section 1.4 (including,
without
limitation, any assets set aside by any Acquired Company under
any
severance plan of the Seller) and any trusts, insurance
arrangements or
other assets held pursuant to, or set aside to fund the
obligations under,
any Acquired Company Plan; and
(n) the Business as carried on and conducted by Seller and
its
Subsidiaries (other than an Acquired Company) as a going
concern, including
any and all goodwill.
Section 1.3. Excluded Assets. Notwithstanding anything to
the contrary
contained in Section 1.2, the parties expressly understand and
agree that the
Purchased Assets shall not include, and neither Seller nor any of
its
Subsidiaries (other than an Acquired Company) is selling,
assigning,
transferring or conveying to Purchaser pursuant to Section 1.2 any
right to or
interest in, any of the following assets, properties, rights,
Contracts and
claims, whether tangible or intangible, real, personal or mixed
(except with
respect to assets sold, assigned, transferred or conveyed with the
Acquired
Companies) (collectively, the "EXCLUDED ASSETS"):
3
(a) all cash, cash equivalents, bank deposits, investment
accounts,
lockboxes, certificates of deposit, marketable securities or
similar cash
items, of Seller or any of its Subsidiaries (other than the
Acquired
Companies);
(b) subject to Sections 1.2 and 10.1, any Seller Employee
Benefit Plan,
any trusts, insurance arrangements or other assets held
pursuant to, or set
aside to fund the obligations of Seller or its Subsidiaries
under, any such
Seller Employee Benefit Plan, any data and records (or copies
thereof)
required to administer the benefits of Acquired Company
Employees and
Business Employees under any Seller Employee Benefit Plan and,
except as
set forth in Section 1.4(a)(ii), the retention agreements with
the Business
Employees and Acquired Company Employees listed on Schedule
1.3(b) (the
"RETENTION AGREEMENTS");
(c) any and all insurance policies, binders and claims and
rights
thereunder and the proceeds thereof and all prepaid insurance
premiums;
(d) subject to Section 7.7, all of Seller's right, title
and interest
in any name, Trademark, trade dress, internet address, trade
name, service
mark or logo, or any derivation of any of the foregoing,
together with all
of the goodwill represented thereby, or pertaining thereto in
each case
listed on Schedule 1.3(d) (collectively, the "EXCLUDED IP
ASSETS");
(e) the assets and Contracts listed on Schedule 1.3(e);
(f) any books, records and other materials that Seller or
any of its
Subsidiaries (other than an Acquired Company) is required by
Law to retain
(provided that Seller or any of its Subsidiaries shall make
available to
Purchaser copies of any such books, records and other
materials to the
extent permitted by Law), all Tax Returns and all "Dana"
marked sales and
promotional materials and brochures;
(g) all claims, defenses, causes of action, choses in
action or claims
of any kind that are available to or being pursued by Seller
or any of its
Subsidiaries whether as plaintiff, claimant, counterclaimant
or otherwise,
in each case, primarily relating to any other Excluded Asset
or any
Excluded Liability;
(h) all assets, business lines, properties, rights,
Contracts and
claims of Seller or any of its Subsidiaries (other than the
Acquired
Companies) not Related to the Business, wherever located,
whether tangible
or intangible, real, personal or mixed;
(i) all assets located at facilities Related to the
Business which have
ceased operations prior to the date hereof, except to the
extent that such
assets are reflected as assets of the Business on the
Benchmark Balance
Sheet and are owned or held by Seller or its Subsidiaries
(other than an
Acquired Company) as of the Closing;
(j) all refunds or credits of or against any Excluded
Taxes and any
interest or penalty rebate with respect to such refunds or
credits (except
to the extent that such Tax items are reflected as an asset in
the Final
Closing Date Working Capital); and
4
(k) except as set forth on Schedule 1.3(k), all
intercompany
receivables, payables, loans and guarantees (i) between Seller
or any of
its wholly owned Subsidiaries (other than an Acquired
Company), on the one
hand, and Seller or any of its wholly owned Subsidiaries
(other than an
Acquired Company), on the other hand, or (ii) required to be
settled in
accordance with Section 6.6.
Section 1.4. Assumed Liabilities. Simultaneously with the
Closing, on
the terms and subject to the conditions set forth herein, Purchaser
shall assume
and be liable for, and shall pay, perform and discharge when due,
all
obligations and Liabilities of Seller and its Subsidiaries (other
than the
Acquired Companies), whether occurring or accruing before, on or
after the
Closing Date, whether known or unknown, fixed or contingent,
asserted or
unasserted, and not satisfied or extinguished as of the Closing
Date, primarily
relating to, primarily arising out of or primarily resulting from
the Business
(collectively, and excluding the Excluded Liabilities, the "ASSUMED
LIABILITIES"), including, by way of example and not limitation, all
of the
following obligations and Liabilities of Seller and its
Subsidiaries (other than
the Acquired Companies):
(a) (i) except as set forth in Section 10.1 and Section
1.5, all
Liabilities relating to, arising out or resulting from the
employment of
the Transferred Employees and their dependents and
beneficiaries, including
accrued obligations for salaries, wages, accrued vacation,
personal days
and floating holidays and sick pay of the Transferred
Employees and
Liabilities relating to, arising out of or resulting from any
collective
bargaining agreement covering the Transferred Employees; and
(ii) the
Liabilities and obligations of Seller for severance payments
under the
Retention Agreements;
(b) accounts and trade payables primarily relating to,
primarily
arising out of or primarily resulting from the Business;
(c) Liabilities for utility, telephone and other services
and goods
primarily relating to, primarily arising out of or primarily
resulting from
the Business;
(d) all Liabilities arising from commitments (in the form
of accepted
purchase orders, or otherwise) to sell, distribute,
manufacture or market
products, or outstanding quotations, proposals or bids,
primarily relating
to, primarily arising out of or primarily resulting from the
Business;
(e) all Liabilities arising from commitments (in the form
of issued
purchase orders, or otherwise) or outstanding quotations,
proposals or
bids, to purchase or acquire raw materials, components,
supplies or
services primarily relating to, primarily arising out of or
primarily
resulting from the Business;
(f) all Liabilities under Business Contracts;
(g) all Liabilities with respect to any return, rebate,
recall,
warranty or similar liabilities primarily relating to,
primarily arising
out of or primarily resulting from the Business;
(h) other than Liabilities arising from or relating to any
actual or
alleged human exposure to asbestos or asbestos-containing
materials
manufactured, serviced, or
5
sold by Seller or its Subsidiaries (other than an Acquired
Company) prior
to Closing, all Liabilities for death, personal injury,
advertising injury,
other injury to persons or property damage occurring after the
Closing
primarily relating to, primarily resulting from, primarily
caused by or
primarily arising out of, directly or indirectly, use of or
exposure to any
of the products (or any part or component) designed,
manufactured, serviced
or sold, or services performed, by Seller or its Subsidiaries
(other than
an Acquired Company), primarily relating to, primarily arising
out of or
primarily resulting from the Business, including any such
Liabilities for
negligence, strict liability, design or manufacturing defect,
conspiracy,
failure to warn, or breach of express or implied warranties or
merchantability or fitness for any purpose or use;
(i) other than Liabilities arising from or relating to any
actual or
alleged human exposure occurring prior to the Closing to
asbestos or
asbestos-containing materials (such Liabilities being governed
by Section
1.5), (i) all Liabilities primarily relating to, primarily
arising out of
or primarily resulting from the Business as a result of,
directly or
indirectly, violations of Environmental Laws or Releases or
threatened
Releases of Hazardous Materials and existing or occurring at
the Owned Real
Property or the Leased Real Property, and (ii) all Liabilities
relating to
any actual or alleged human exposure occurring after the
Closing to
asbestos or asbestos-containing materials existing or
occurring at the
Owned Real Property or the Leased Real Property;
(j) all Liabilities under the intercompany receivables,
payables, loans
and investments set forth on Schedule 1.5(j); and
(k) all Taxes imposed on or payable with respect to the
Acquired
Companies or the Business for which Purchaser is responsible
pursuant to
Section 14.1(b).
Section 1.5. Excluded Liabilities. Notwithstanding the
provisions of
Section 1.4, it is expressly understood and agreed that there shall
be excluded
from the liabilities and obligations being assumed by Purchaser
pursuant to
Section 1.4 all Liabilities of Seller or any of its Subsidiaries
(other than an
Acquired Company) that are not Assumed Liabilities and the
following liabilities
and obligations of Seller or any of its Subsidiaries (other than an
Acquired
Company) (collectively, the "EXCLUDED LIABILITIES"):
(a) the debt and other Liabilities, including any interest
or other
amounts in connection therewith, listed on Schedule 1.5(a) and
all
indebtedness for borrowed money, including any interest or
other amounts in
connection therewith;
(b) all Liabilities for which Seller or any of its
Subsidiaries (other
than an Acquired Company) is expressly made responsible
pursuant hereto or
the Transition Agreements;
(c) all Liabilities for death, personal injury,
advertising injury,
other injury to persons or property damage occurring prior to
the Closing
relating to, resulting from, caused by or arising out of,
directly or
indirectly, use of or exposure to any of the products (or any
part or
component) designed, manufactured, serviced or sold, or
services performed,
by Seller or its Subsidiaries (other than an Acquired
Company), including
any
6
such Liabilities for negligence, strict liability, design or
manufacturing
defect, conspiracy, failure to warn, or breach of express or
implied
warranties or merchantability or fitness for any purpose or
use;
(d) all Liabilities arising from or relating to any actual
or alleged
human exposure to asbestos or asbestos-containing materials in
any of the
products (or any part or component) manufactured, serviced or
sold, or
services performed, by Seller or its Subsidiaries (other than
an Acquired
Company) prior to the Closing, including any such Liabilities
for
negligence, strict liability, design or manufacturing defect,
conspiracy,
failure to warn, or breach of express or implied warranties or
merchantability or fitness for any purpose or use;
(e) all Liabilities to the extent arising out of Legal
Proceedings
commenced prior to the Closing relating to, arising out of or
resulting
from the Business or an Acquired Company ("EXISTING
LITIGATION");
(f) all Liabilities relating to, arising out of or
resulting from any
actual or alleged human exposure occurring prior to the
Closing to asbestos
or asbestos-containing materials at any property or facility
currently or
formerly owned, leased, operated or used in connection with
the Business,
including the Owned Real Property and the Leased Real
Property;
(g) (i) all Liabilities with respect to the real property
currently or
formerly owned, leased or used by Seller or any of its
Subsidiaries other
than the Owned Real Property or the Leased Real Property,
including all
Liabilities under or relating to Environmental Laws to the
extent relating
to any property, facility or location not included among the
Owned Real
Property or the Leased Real Property, and (ii) any such
Liabilities
relating to the disposal, prior to the Closing Date, of
Hazardous Materials
generated or otherwise originating at the Owned Real Property
or the Leased
Real Property at or to a location other than the Owned Real
Property or the
Leased Real Property;
(h) any indebtedness or other Liabilities resulting from
Seller's
accounts receivable securitization program;
(i) all Excluded Taxes (except to the extent that such
Excluded Taxes
are reflected as a liability in the Final Closing Date Working
Capital);
(j) except as set forth on Schedule 1.5(j), all
intercompany
receivables, payables, loans and guarantees (i) between Seller
or any of
its Subsidiaries (other than an Acquired Company), on the one
hand, and
Seller or any of its Subsidiaries (other than an Acquired
Company), on the
other hand, or (ii) required to be settled in accordance with
Section 6.6;
(k) fees, expenses, indemnification obligations and other
Liabilities
owed by Seller or its Subsidiaries (other than an Acquired
Company) to
their respective advisors, including Credit Suisse First
Boston LLC and
Goldman, Sachs & Co. and their respective Affiliates, on
account of the
acquisition advisory services provided to Seller and its
Subsidiaries by
such advisors, including Credit Suisse First Boston LLC,
Goldman, Sachs &
7
Co. or their respective Affiliates, in connection with the
transactions
contemplated hereby; and
(l) except as set forth in Section 10.1, (i) any Liability
under or
relating to any Seller Employee Benefit Plan, whether or not
such liability
or obligation arises prior to, on or after the Closing Date,
(ii) any other
Liability relating to the employment or termination of
employment of any
Business Employee who is not a Transferred Employee arising
from or related
to the operation of the Business on, prior to or after the
Closing or the
transactions contemplated by this Agreement (including but not
limited to,
any severance), (iii) any obligation for retention payments or
other
benefits (other than severance benefits) under the Retention
Agreements or
(iv) any liability relating to any severance benefits payable
to any
Business Employees as a result of any transactions
contemplated by this
Agreement.
ARTICLE II
CONSIDERATION
Section 2.1. Amount and Form of Consideration. The
consideration to be
paid by Purchaser to Seller and its Subsidiaries (other than an
Acquired
Company) in full consideration of the Purchased Shares and the
Purchased Assets
shall consist of:
(a) U.S.$1,105 million (the "INITIAL CASH CONSIDERATION")
in cash,
subject to adjustment as set forth in Section 2.3 (the Initial
Cash
Consideration, as so adjusted, the "FINAL CASH
CONSIDERATION"), to be paid
in the manner and at the time set forth in Sections 2.2 and
2.3; and
(b) the assumption by Purchaser on and as of the Closing
Date of the
Assumed Liabilities.
Section 2.2. Payment of Cash Consideration. At the
Closing, the Closing
Date Cash Consideration, shall be paid by wire transfer of
immediately available
funds in U.S. Dollars to an account or accounts designated by
Seller, such
designation to be made in writing at least three Business Days
prior to the
Closing Date.
Section 2.3. Purchase Price Adjustment. (a) At least three
Business
Days prior to the Closing Date, Seller shall prepare, or cause to
be prepared,
and deliver to Purchaser a good-faith estimated statement of
Working Capital of
the Business as of the opening of business on the Closing Date (the
"ESTIMATED
CLOSING DATE WORKING CAPITAL STATEMENT"), and a certificate setting
forth a
good-faith estimate of Working Capital as of the opening of
business on the
Closing Date (the "ESTIMATED CLOSING DATE WORKING CAPITAL") and a
good-faith
estimate of the Closing Date Cash (the "ESTIMATED CLOSING DATE
CASH"). The
Estimated Closing Date Working Capital Statement shall be prepared
in accordance
with GAAP, as modified by the accounting policies specified on
Schedule 2.3(a)
(the "SPECIFIED ACCOUNTING Policies"), consistent with the
accounting
principles, procedures, policies and methods that were employed in
preparing the
Benchmark Balance Sheet. The Initial Cash Consideration shall be
(i)(A)
increased dollar for dollar to the extent the Estimated Closing
Date Working
Capital exceeds the Target Working
8
Capital, or (B) decreased dollar for dollar to the extent the
Estimated Closing
Date Working Capital is less than the Target Working Capital and
(ii)(A)
increased dollar for dollar to the extent that the Estimated
Closing Date Cash
is greater than U.S.$0 or (B) decreased dollar for dollar to the
extent that the
Estimated Closing Date Cash is less than U.S.$0 (the Initial Cash
Consideration,
as adjusted pursuant to this sentence, the "CLOSING DATE CASH
CONSIDERATION").
(b) Within 70 calendar days following the Closing Date,
Seller shall
prepare, or cause to be prepared, and deliver to Purchaser a
statement of
Working Capital of the Business as of the opening of business on
the Closing
Date (as such may be adjusted following resolution of disputes in
accordance
with Section 2.3(d), the "CLOSING DATE WORKING CAPITAL STATEMENT"),
and a
certificate setting forth a calculation of Working Capital as of
the opening of
business on the Closing Date ("CLOSING DATE WORKING CAPITAL") and a
calculation
of Closing Date Cash. The Closing Date Working Capital Statement
shall be
prepared in accordance with GAAP, as modified by the Specified
Accounting
Policies, using the same accounting principles, procedures,
policies and methods
that were employed in preparing the Benchmark Balance Sheet.
(c) During the preparation of the Closing Date Working
Capital
Statement and the calculation of Closing Date Working Capital and
Closing Date
Cash (the "CLOSING DATE FINANCIAL DATA"), and the period of any
dispute within
the contemplation of this Section 2.3, Purchaser shall, and shall
cause the
Acquired Companies to: (i) provide Seller and its authorized
representatives
with full access to all relevant books, records, facilities and
employees of
Purchaser and the Acquired Companies to the extent reasonably
necessary to
prepare the Closing Date Financial Data; and (ii) cooperate fully
with Seller
and its authorized representatives, including by providing on a
timely basis all
information to the extent necessary or useful in preparing the
Closing Date
Financial Data.
(d) After receipt of the Closing Date Working Capital
Statement,
Purchaser shall have 60 calendar days to review the Closing Date
Financial Data,
together with the workpapers used in the preparation thereof.
During the review
of the Closing Date Financial Data, and the period of any dispute
within the
contemplation of this Section 2.3, Seller shall, and shall cause
its
Subsidiaries to: (i) provide Purchaser and its authorized
representatives with
full access to all relevant books, records, facilities and
employees of Seller
and its Subsidiaries to the extent reasonably necessary to complete
their review
of the Closing Date Financial Data; and (ii) cooperate fully with
Purchaser and
its authorized representatives, including by providing on a timely
basis all
information to the extent reasonably necessary or useful in
reviewing the
Closing Date Financial Data. Purchaser may dispute items reflected
in the
calculation of Closing Date Working Capital and Closing Date Cash
only on the
basis that such amounts (i) were not determined in conformity with
GAAP, as
modified by the Specified Accounting Policies applied by Seller on
a consistent
basis or (ii) contain arithmetic error. Unless Purchaser delivers
written notice
to Seller on or prior to the 60th calendar day after Purchaser's
receipt of the
Closing Date Working Capital Statement specifying in reasonable
detail the
amount, nature and basis of all disputed items, Purchaser shall be
deemed to
have accepted and agreed to the calculation of Closing Date Working
Capital and
Closing Date Cash. If Purchaser so notifies Seller of its objection
to the
calculation of Closing Date Working Capital and Closing Date Cash,
Purchaser and
Seller shall, within 30 calendar days following such notice (the
"RESOLUTION
PERIOD"), attempt to resolve their differences and any resolution
by them as to
any disputed amounts shall be final, binding and conclusive.
9
(e) If, at the conclusion of the Resolution Period, any
amounts remain
in dispute with respect to either Closing Date Working Capital or
Closing Date
Cash, then all amounts remaining in dispute shall be submitted to
KPMG (the
"NEUTRAL AUDITORS"). Each party agrees to execute, if requested by
the Neutral
Auditors, a reasonable engagement letter, including customary
indemnities in
favor of the Neutral Auditors. All fees and expenses relating to
the work, if
any, to be performed by the Neutral Auditors shall be borne pro
rata as between
Seller, on the one hand, and Purchaser, on the other, in proportion
to the
allocation of the dollar value of the amounts remaining in dispute
between
Seller and Purchaser made by the Neutral Auditors such that the
prevailing party
pays the lesser proportion of the fees and expenses. The Neutral
Auditors shall
act as an arbitrator to determine, based solely on the provisions
of this
Section 2.3 and the presentations by Seller and Purchaser, and not
by
independent review, only those issues still in dispute and only as
to whether
such amounts were arrived at in conformity with GAAP, as modified
by the
Specified Accounting Policies, and Section 2.3(b). Seller and
Purchaser agree
that (i) they shall request the Neutral Auditors to make their
determination
within 30 calendar days of their selection, in a written statement
delivered to
Seller and Purchaser and (ii) such determination shall be final,
binding and
conclusive. The term "FINAL CLOSING DATE WORKING CAPITAL" shall
mean the
definitive Closing Date Working Capital and the term "FINAL CLOSING
DATE CASH"
shall mean the definitive Closing Date Cash, respectively, agreed
to (or deemed
to be agreed to) by Purchaser and Seller in accordance with the
terms of Section
2.3(d) or the definitive Closing Date Financial Data resulting from
the
determinations made by the Neutral Auditors in accordance with this
Section
2.3(e) (in addition to those items theretofore agreed to by Seller
and
Purchaser).
(f) The Closing Date Cash Consideration shall be (i)(A)
increased
dollar for dollar to the extent the Final Closing Date Working
Capital exceeds
the Estimated Closing Date Working Capital, or (B) decreased dollar
for dollar
to the extent the Final Closing Date Working Capital is less than
the Estimated
Closing Date Working Capital and (ii)(A) increased dollar for
dollar to the
extent that the Final Closing Date Cash is greater than the
Estimated Closing
Date Cash or (B) decreased dollar for dollar to the extent that the
Final
Closing Date Cash is less than the Estimated Closing Date Cash. Any
adjustments
to the Closing Date Cash Consideration made pursuant to this
Section 2.3(f)
shall be paid by wire transfer of immediately available funds
(together with
interest thereon at the Applicable Rate from and including the
Closing Date to,
but excluding, the date of such payment) to the account or accounts
specified by
Seller, if Seller is owed payment, or to the account or accounts
specified by
Purchaser, if Purchaser is owed payment, within five Business Days
after the
Final Closing Date Working Capital and Final Closing Date Cash are
agreed to by
Purchaser and Seller or any remaining disputed items are ultimately
determined
by the Neutral Auditors.
(g) The parties agree to work together, between the date
hereof and the
Closing, to prepare in good faith an allocation of $5,000,000 of
the $5,126,419
described in the definition of "Closing Date Cash" to each of the
non-U.S.
Acquired Companies based on such non-U.S. Acquired Companies'
relative working
capital needs.
Section 2.4. Allocation of Consideration. Seller and
Purchaser agree to
allocate the Initial Cash Consideration among the Purchased Shares
and the
Purchased Assets in the manner set forth on Schedule 2.4. Within 60
calendar
days following the determination of the Final Consideration,
Purchaser and
Seller shall attempt in good faith to agree upon the allocation
10
of the difference between the Initial Cash Consideration and the
Final
Consideration among the Purchased Shares and the Purchased Assets.
The
allocation of this amount shall take into account (i) the item or
items to which
it is attributable and (ii) the notes on Schedule 2.4, and shall,
to the extent
such allocation is agreed by Purchaser and Seller, be reflected on
a revised
Schedule 2.4. In the event that Purchaser and Seller are unable to
reach an
agreement within such 60 calendar day period, the allocation of any
disputed
item or items shall be resolved within the next 30 calendar days by
an
independent accounting firm or valuation expert that is mutually
acceptable to
both parties and whose fees shall be borne equally by Purchaser and
Seller. Such
determination by the accounting firm or valuation expert shall be
binding on the
parties without further adjustment and shall be reflected on a
revised Schedule
2.4. Except as otherwise required pursuant to a "determination"
under Section
1313(a) of the Code (or any comparable provision of state, local or
foreign
Law), Purchaser and Seller agree to act in accordance with the
allocations
contained in Schedule 2.4, as revised in accordance with this
Section, for all
Tax purposes and that neither of them will (or will permit any of
its Affiliates
to) take any position inconsistent therewith in any Tax Returns or
similar
filings (including IRS Form 8594 or any similar form required to be
filed under
state, local or foreign Law), any refund claim, litigation, or
otherwise.
Purchaser and Seller each agree to provide the other party with any
additional
information reasonably required to complete IRS Form 8594 (or any
similar form
required to be filed under state, local or foreign Law) and with
completed
copies of such forms.
ARTICLE III
THE CLOSING
Section 3.1. Closing Date. Except as hereinafter provided,
the closing
of the transactions contemplated hereunder (the "CLOSING") shall
take place at
the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd
Street, New York,
New York 10019, at 10:00 a.m. (local time) on (i) the third
Business Day
following the date on which the last of the conditions set forth in
Articles
VIII and IX have been satisfied (other than Sections 8.5, 8.6 and
9.5 and those
conditions that by their terms are not expected to be satisfied
until the
Closing Date) or, in the case of Article VIII, waived by Purchaser,
or, in the
case of Article IX, waived by Seller, or (ii) at such other place
and at such
other time and date as may be mutually agreed upon by Purchaser and
Seller (such
date and time being referred to herein as the "CLOSING DATE").
Section 3.2. Deliveries by Seller to Purchaser. At the
Closing, Seller
shall deliver, or shall cause to be delivered, to Purchaser the
following:
(a) stock certificates or appropriate certificates of
ownership, as
applicable, representing all of the Purchased Shares and all
of the equity
interests of each Acquired Company (other than the Purchased
Companies)
held by another Acquired Company (other than those that are in
book-entry
form or not certificated), in each case accompanied by stock
powers duly
executed in blank or other duly executed instruments of
transfer and
requisite transfer tax stamps, if any, as may be necessary to
effect the
transactions contemplated in Section 1.1;
(b) one or more duly executed bills of sale, substantially
in the form
of Exhibit B, or local transfer agreements as may be necessary
or desirable
under applicable
11
Law, or comparable instruments of transfer transferring to
Purchaser all of
the Purchased Assets, duly executed by Seller;
(c) special warranty deeds, or comparable instruments of
transfer and
assignment in recordable form (collectively, the "TRANSFER
DEEDS"),
substantially in the form of Exhibit C and which shall include
any
modifications as may be required by the applicable local
jurisdiction, with
respect to the Owned Real Properties owned by Seller or any of
its
Subsidiaries (other than Acquired Companies);
(d) duly executed instruments of assignment of or licenses
to assign
the Real Property Leases (collectively, the "ASSIGNMENTS OF
LEASES") to
which Seller or any of its Subsidiaries (other than Acquired
Companies) is
a party, substantially in the form of Exhibit D, subject to
Sections 6.3(b)
and 10.3(b);
(e) duly executed instruments of assignment or transfer of
the
Purchased Intellectual Property, substantially in the form of
Exhibit E or
local assignment agreements as may be necessary or desirable
under
applicable Law;
(f) the certificates referred to in Section 8.5 signed by
a duly
authorized officer of Seller;
(g) the resignations or evidence of removal of the
officers, as
corporate officers, and directors of the Acquired Companies
set forth on
Schedule 3.2(g) to the extent requested by Purchaser;
(h) the Transition Agreements, duly executed by Seller;
(i) a certificate of non-foreign status meeting the
requirements of
Treasury Regulations Section 1.1445-2(b)(2) from Seller and
each Subsidiary
of Seller that transfers (A) Purchased Shares of an entity
treated as a
domestic corporation for United States federal income tax
purposes or (B)
Purchased Assets that are treated as "United States real
property
interests" within the meaning of Section 897(c) of the Code,
in each case,
pursuant to this Agreement;
(j) a duly executed assignment and assumption agreement or
other
comparable instrument of assignment and assumption,
substantially in the
form of Exhibit F, evidencing assumption of the Assumed
Liabilities and all
other instruments or documents as shall be necessary in the
reasonable
judgment of Purchaser to evidence the assignment by Seller or
its
Subsidiaries of the Purchased Assets and the assumption by
Purchaser or its
Subsidiaries of the Assumed Liabilities, subject to Section
6.3(b) and
10.3(b);
(k) a receipt, duly executed by Seller, acknowledging on
behalf of
Seller and its Subsidiaries, payment by Purchaser of the
Closing Date Cash
Consideration pursuant to Section 2.2;
(l) a receipt, duly executed by Seller, acknowledging, on
behalf of
Seller and each of its Subsidiaries, settlement of all
intercompany
receivables, payables, loans and guarantees then existing
between Seller or
any of its Subsidiaries (other than any Acquired
12
Company), on the one hand, and the Acquired Companies, on the
other hand,
pursuant to Section 6.6;
(m) to the extent obtained at or prior to Closing,
consents to transfer
the Transferred Permits and Business Contracts to Purchaser;
(n) all minute books, stock record books (or similar
registries) and
corporate records and seals of each Acquired Company by Seller
or its
Subsidiaries (other than the Acquired Companies); provided
that such
materials may be delivered to a mutually agreeable location
other than the
Closing; and
(o) such other documents and instruments as Purchaser and
Seller shall
mutually agree to be reasonably necessary to consummate the
transactions
described herein.
Section 3.3. Deliveries by Purchaser to Seller. At the
Closing,
Purchaser shall deliver to Seller the following:
(a) the Closing Date Cash Consideration (together with any
additional
amounts required to be paid pursuant to Section 14.9(b)) by
wire transfer
of immediately available funds in the manner provided in
Section 2.2;
(b) a duly executed assignment and assumption agreement or
other
comparable instrument of assignment and assumption,
substantially in the
form of Exhibit F, evidencing assumption of the Assumed
Liabilities and all
other instruments or documents as shall be necessary in the
reasonable
judgment of Seller to evidence the assignment by Seller of the
Purchased
Assets and the assumption by Purchaser or its Subsidiaries of
the Assumed
Liabilities, subject to Sections 6.3(b) and 10.3(b);
(c) the certificate referred to in Section 9.5 signed by a
duly
authorized officer of Purchaser;
(d) the Transition Agreements, duly executed by Purchaser;
(e) the appointment of the persons selected by Purchaser
to fill the
corporate officer and director positions of the Acquired
Companies;
(f) a receipt, duly executed by Purchaser, acknowledging
on behalf of
Purchaser, the sale, assignment, transfer, conveyance and
delivery of the
Purchased Shares and the Purchased Assets by Seller and its
Subsidiaries
pursuant to the terms of Sections 1.1 and 1.2; and
(g) such other documents and instruments as Purchaser and
Seller shall
mutually agree to be reasonably necessary to consummate the
transactions
described herein.
Section 3.4. Proceedings at Closing. All acts and
proceedings to be
taken and all documents to be executed and delivered by the parties
at the
Closing shall be deemed to have been taken and executed
simultaneously, and,
except as permitted hereunder, no acts or proceedings
13
shall be deemed taken nor any documents executed or delivered until
all have
been taken, executed and delivered.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into this Agreement
and to
consummate the transactions contemplated hereby, Seller hereby
represents and
warrants to Purchaser that, except as set forth in the applicable
corresponding
section of the Disclosure Schedule dated as of the date hereof and
delivered by
Seller to Purchaser (the "SELLER DISCLOSURE SCHEDULE"):
Section 4.1. Organization and Good Standing. Each of
Seller, the Seller
Subs, the Acquired Companies and the Transferred JVs is an entity
duly organized
or formed, validly existing and (to the extent that the concept of
good standing
exists in the applicable jurisdiction with respect to such entity)
in good
standing under the laws of the jurisdiction of its organization or
formation,
and each of the Acquired Companies, the Transferred JVs and, with
respect to the
Business, Seller and the Seller Subs has all requisite corporate
power and
authority to own or lease and operate its properties and to carry
on, in all
material respects, the Business as now being conducted. Each of
Seller, the
Seller Subs, the Acquired Companies and the Transferred JVs is duly
qualified,
authorized or licensed to conduct its business as a foreign
corporation in, and,
if applicable, is in good standing under the laws of each
jurisdiction in which
the conduct of its business or the ownership, lease or operation of
its
properties requires such qualification, authorization or license,
except where
the failure to be so qualified, authorized or licensed or to be in
good standing
would not reasonably be expected to, individually or in the
aggregate, have a
Material Adverse Effect. Section 4.1 of the Seller Disclosure
Schedule sets
forth a true and complete list, as of the date hereof, of all
jurisdictions in
which each of the Acquired Companies, the Transferred JVs and, with
respect to
the Business, each of Seller and its other Subsidiaries are
qualified or
licensed to do business as a foreign corporation. Seller has made
available to
Purchaser true and correct copies of the Acquired Companies and the
Transferred
JVs' respective certificates of incorporation, bylaws and similar
organizational
documents, as in effect as of the date hereof.
Section 4.2. Capital Structure of Purchased Companies. The
authorized
capital stock of each of the Purchased Entities, the number of
shares of such
capital stock that are issued and outstanding and the name,
jurisdiction of
organization and record owner of the capital stock of each of the
Purchased
Entities are set forth on Section 4.2 of the Seller Disclosure
Schedule. The
authorized capital stock of each of the Purchased Ventures, the
number of shares
of such capital stock that are issued and outstanding and, as of
the date
hereof, the name, jurisdiction of organization and record owner of
the equity
interests in each of the Purchased Ventures are set forth on
Section 4.2 of the
Seller Disclosure Schedule. The Purchased Shares are duly
authorized, validly
issued, fully paid and nonassessable, have been issued in
compliance with (and
since such issuance, have not been transferred except in compliance
with) all
applicable securities Laws. The Purchased Shares are not subject to
any
preemptive rights, rights of first refusal or similar rights of any
Person, and
there are no voting trusts, proxies or other agreements with
respect to the
voting of the Purchased Shares, other than as set forth in any
certificate or
articles of incorporation, bylaws or similar organizational
documents of the
Purchased Companies. Except
14
as set forth on Section 4.2 of the Seller Disclosure Schedule, the
Purchased
Companies do not have any other capital stock or equity securities
issued or
outstanding other than the Purchased Shares, and neither Seller nor
any
Purchased Company has issued any outstanding right or security or
is party to
any existing agreement that requires Seller or any of the Purchased
Companies to
issue or sell any shares of capital stock of the Purchased
Companies to any
Person (including any warrant, option, call, preemptive right,
convertible debt
obligation, subscription for stock or securities convertible into
stock of such
companies or any other similar right, security, instrument or
agreement), other
than as set forth in any certificate or articles of incorporation,
bylaws or
similar organizational documents of the Purchased Companies. Except
as set forth
in Section 4.2 of the Seller Disclosure Schedule, Seller, directly
or indirectly
through one or more wholly owned Subsidiaries of Seller,
beneficially owns and
has good and valid title to all of the Purchased Shares, free and
clear of all
Liens other than as set forth in any certificate or articles of
incorporation,
bylaws or similar organizational documents of the Purchased
Companies.
Section 4.3. Subsidiaries and Transferred JVs. (a) Section
4.3(a) of
the Seller Disclosure Schedule sets forth each Subsidiary of Seller
(other than
any Acquired Company) that, as of the date hereof, owns a Purchased
Asset or a
Purchased Share, is liable for an Assumed Liability or is otherwise
engaged in
the Business (such Subsidiaries and any Subsidiary of Seller (other
than an
Acquired Company) that, immediately prior to the Closing, owns a
Purchased Asset
or a Purchased Share, is liable for an Assumed Liability or is
otherwise engaged
in the Business, the "SELLER SUBS").
(b) Except as set forth on Section 4.3(b) of the Seller
Disclosure
Schedule, all of the outstanding shares of capital stock or equity
securities of
the Acquired Companies other than the Purchased Companies
(collectively, the
"SUBSIDIARY EQUITY SECURITIES") are owned directly or indirectly by
the
Purchased Companies. Other than as set forth in any certificate or
articles of
incorporation, bylaws or similar organizational documents of the
Acquired
Companies, (i) the Subsidiary Equity Securities are duly
authorized, validly
issued, fully paid and nonassessable, have been issued in
compliance with (and
since such issuance, have not been transferred except in compliance
with) all
applicable securities Laws and any preemptive rights, rights of
first refusal or
similar rights of any Person; (ii) no Acquired Company has issued
any
outstanding right or security or is a party to any existing
agreement that
requires any such Acquired Company to issue or sell any Subsidiary
Equity
Securities to any Person (including any warrant, option, call,
preemptive right,
convertible debt obligation, subscription for stock or securities
convertible
into Subsidiary Equity Securities or any other similar right,
security,
instrument or agreement); (iii) there are no voting trusts, proxies
or other
agreements with respect to the voting of the Subsidiary Equity
Securities; and
(iv) the Purchased Companies (or a wholly owned Acquired Company)
has good and
valid title to the Subsidiary Equity Securities, free and clear of
all Liens.
(c) To the Knowledge of Seller, Section 4.3(c) of the
Seller Disclosure
Schedule sets forth the holders of record of all of the outstanding
shares of
capital stock or equity securities of each Transferred JV
(collectively, the "JV
EQUITY SECURITIES"). Except as set forth on Section 4.3(c) of the
Seller
Disclosure Schedule, (i) the JV Equity Securities set forth on
Section 4.3(c) of
the Seller Disclosure Schedule as being owned by Seller or its
Subsidiaries are
duly authorized, validly issued, fully paid and nonassessable, have
been issued
in compliance with
15
(and since such issuance, have not been transferred except in
compliance with)
all applicable securities Laws and any preemptive rights, rights of
first
refusal or similar rights of any Person; (ii) no Transferred JV has
issued any
outstanding right or security or is a party to any existing
agreement that
requires such Transferred JV to issue or sell any JV Equity
Security to any
Person (including any warrant, option, call, preemptive right,
convertible debt
obligation, subscription for stock or securities convertible into
JV Equity
Securities or any other similar right, security, instrument or
agreement), other
than as set forth in any certificate or articles of incorporation,
bylaws or
similar organizational documents of a Transferred JV; (iii) there
are no voting
trusts, proxies or other agreements with respect to the voting of
the JV Equity
Securities set forth on Section 4.3(c) of the Seller Disclosure
Schedule as
being owned by Seller or its Subsidiaries, other than as set forth
in any
certificate or articles of incorporation, bylaws or similar
organizational
documents of a Transferred JV; and (iv) Seller and its Subsidiaries
set forth on
Section 4.3(c) of the Seller Disclosure Schedule have good and
valid title to
the JV Equity Securities set forth on Section 4.3(c) of the Seller
Disclosure
Schedule as being owned by Seller or its Subsidiaries, free and
clear of all
Liens, other than as set forth in any certificate or articles of
incorporation,
bylaws or similar organizational documents of a Transferred JV.
Section 4.4. Authorization of Agreement. Each of Seller
and its
Subsidiaries has all requisite corporate power and authority to
execute and
deliver (or cause to be executed and delivered), as applicable,
this Agreement
and each other agreement, document, instrument or certificate
contemplated
hereby to be executed or delivered by Seller or its Subsidiaries in
connection
herewith and to consummate the transactions contemplated hereby
(all such other
agreements, documents, instruments and certificates required to be
executed or
delivered by Seller or any of its Subsidiaries being hereinafter
referred to,
collectively, as the "SELLER DOCUMENTS"), and to perform (or cause
to be
performed) fully the obligations of Seller and its Subsidiaries, as
applicable,
hereunder and thereunder. The execution, delivery and performance
by Seller of
this Agreement and by Seller or its Subsidiaries of each of the
Seller Documents
and the consummation of the transactions contemplated hereby and
thereby have
been duly authorized by all necessary corporate action on the part
of Seller or
such Subsidiaries, as applicable, and no other corporate proceeding
on the part
of Seller or any Subsidiary is necessary to authorize the
execution, delivery or
performance hereof or thereof or the consummation of the
transactions
contemplated hereby or thereby. This Agreement has been, and each
of the Seller
Documents will be, when delivered to Purchaser, duly executed and
delivered by
Seller and its Subsidiaries, as applicable, and (assuming the due
authorization,
execution and delivery by the other parties hereto and thereto)
this Agreement
constitutes, and each of the Seller Documents when so executed and
delivered
will constitute valid and legally binding obligations of Seller and
its
Subsidiaries, as applicable, enforceable against each in accordance
with its
terms.
Section 4.5. No Conflicts; Consents of Third Parties. (a)
Except as set
forth in Section 4.5(a) of the Seller Disclosure Schedule, none of
the execution
and delivery by Seller of this Agreement and by Seller or its
Subsidiaries of
the Seller Documents, the consummation of the transactions
contemplated hereby
or thereby or compliance by Seller, its Subsidiaries or any
Acquired Company or
Transferred JV with any of the provisions hereof or thereof will
(i) conflict
with, or result in the breach of, any provision of the certificate
or articles
of incorporation, bylaws or similar organizational documents of
Seller, its
Subsidiaries or any Acquired Company; (ii) conflict with, violate,
result in the
breach or termination of, or constitute (with or without notice or
lapse of time
or both) a default, give rise to any right of consent,
cancellation, termination
16
or acceleration or right to increase the obligations or otherwise
modify the
terms under, or result in the creation of any Lien on, the
Purchased Assets or
the assets of the Acquired Companies, under any indenture,
mortgage, loan,
agreement, Contract, lease, license, instrument or other
arrangement to which
any Acquired Company is a party or to which any of Seller and its
Subsidiaries
is a party with respect to the Business, except in the case of this
clause (ii)
as would not reasonably be expected to, individually or in the
aggregate, have a
Material Adverse Effect or a material adverse effect on Seller's
ability to
perform its obligations hereunder; or (iii) conflict with in any
material
respect or constitute a material violation of any material Law
applicable to
Seller, its Subsidiaries or any Acquired Company, except in the
case of this
clause (iii) as would not reasonably be expected to, individually
or in the
aggregate, have a material adverse effect on Seller's ability to
perform its
obligations hereunder.
(b) Except as set forth on Section 4.5(b) of the Seller
Disclosure
Schedule, no consent, waiver, approval, Order, Permit or
authorization of, or
declaration or filing with, or notification or report to, any
Person or
Governmental Body is required to be obtained or made by Seller, its
Subsidiaries
or any Acquired Company in connection with the execution, delivery
and
performance of this Agreement or the Seller Documents, the
consummation of the
transactions contemplated hereby and thereby or the compliance by
Seller, its
Subsidiaries or any Acquired Company with any of the provisions
hereof or
thereof, except for (i) compliance with the applicable requirements
of (x) the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules
and
regulations promulgated thereunder (the "HSR ACT") or (y) Council
Regulation
(EEC) No. 4064/89 of the Commission of the European Communities
(the "EC
COMPETITION REGULATION"), if necessary, and (ii) other than those
relating to
the HSR Act and EC Competition Regulation, such consents, waivers,
approvals,
Orders, Permits or authorizations of, or declarations or filings
with, or
notifications to, any Person or Governmental Body the failure of
which to be
received or made would not reasonably be expected to, individually
or in the
aggregate, have a Material Adverse Effect or a material adverse
effect on
Seller's ability to perform its obligations hereunder.
Section 4.6. Financial Statements. (a) Seller has made
available to
Purchaser true and correct copies of the audited combined balance
sheet of the
Business (including the Acquired Companies), as of December 31,
2003 and
December 31, 2002, and the audited combined statement of income and
combined
statements of cash flows of the Business (including the Acquired
Companies) for
the fiscal years ended December 31, 2003, December 31, 2002 and
December 31,
2001 (collectively, the "FINANCIAL STATEMENTS"). Each of the
Financial
Statements has been prepared in accordance with GAAP. The Financial
Statements
were prepared on the basis of the books and records of the Business
(including
the Acquired Companies), in each case as of the date of such
Financial
Statements, and present fairly, in all material respects, the
financial position
of the Business (including the Acquired Companies) as of the dates
thereof and
the results of its operations for each of the periods then ended in
conformity
with GAAP.
(b) Seller has made available to Purchaser a true and
correct copy of
the unaudited pro forma balance sheet of the Business (including
the Acquired
Companies), as of December 31, 2003 (the "BALANCE SHEET DATE" and
such balance
sheet being the "BENCHMARK BALANCE SHEET"). The Benchmark Balance
Sheet has been
prepared in accordance with GAAP, as modified by the Specified
Accounting
Policies. The Benchmark Balance Sheet was prepared on the basis of
the books and
records of the Business (including the Acquired Companies) as of
the
17
date thereof and presents fairly, in all material respects, the
financial
position of the Business (including the Acquired Companies) as of
the date
thereof in conformity with GAAP, as modified by the Specified
Accounting
Policies.
(c) The Business and the Acquired Companies have no
Liabilities or
obligations of any kind, whether absolute, accrued, contingent or
otherwise,
except for Liabilities (i) incurred in the ordinary course of
business
consistent with past practice since the Benchmark Balance Sheet
Date, (ii)
reflected on, accrued or reserved against, in the Benchmark Balance
Sheet, (iii)
that, if known, would not be required by GAAP to be reflected or
reserved
against on a balance sheet (or in the notes thereto) of the
Business and the
Acquired Companies, (iv) as would not reasonably be expected to,
individually or
in the aggregate, have a Material Adverse Effect or (v) set forth
on Section
4.6(c) of the Seller Disclosure Schedule.
(d) The amount set forth on Section 4.6(d)(i) of the
Seller Disclosure
Schedule is, in all material respects, the amount included as an
expense of the
Business and the Acquired Companies in the audited combined
statement of income
included in the Financial Statements for the fiscal year ended
December 31, 2003
with respect to the North American and European shared services
listed on the
Schedule to the Transition Services Agreement provided by Seller to
the Business
and the Acquired Companies for such fiscal year. The amount set
forth on Section
4.6(d)(ii) of the Seller Disclosure Schedule represents, in all
material
respects, the pro forma annualized expense, on a net basis and
based on
historical costs, of the South American shared services listed on
the Schedules
to the Transition Services Agreement provided by Seller to the
Business and the
Acquired Companies for 2004. The aggregate of all expenses actually
incurred for
the fiscal year ended December 31, 2003 for the equivalent South
American shared
services listed on the Schedules to the Transition Services
Agreement is equal,
on a net basis and in all material respects, to the aggregate of
all expenses
charged and recorded in the applicable financial statements for the
fiscal year
ended December 31, 2003. The amounts set forth on Section
4.6(d)(iii) of the
Seller Disclosure Schedule represent, in all material respects, the
actual
amounts charged by Seller to the Business and the Acquired
Companies with
respect to the services described in Section 4.6(d)(iii) of the
Seller
Disclosure Schedule for the fiscal year ended December 31, 2003,
and which is
included as an expense of the Business and the Acquired Companies
in the audited
combined statement of income included in the Financial Statements
for the fiscal
year ended December 31, 2003. The amount set forth on Section
4.6(d)(iv) of the
Seller Disclosure Schedule for "Group health/dental (US)" is, in
all material
respects, the actual amount charged by unaffiliated third parties
to the Seller
and passed through to the Business and the Acquired Companies, and
is recorded
in the Financial Statements for the fiscal year ended December 31,
2003. The
amount set forth on Section 4.6(d)(iv) of the Seller Disclosure
Schedule for
"Dana Global Freight/Logistics" is, in all material respects, the
actual amount
recorded in the Financial Statements for the fiscal year ended
December 31,
2003. The components of these charges include the actual amount
charged by
unaffiliated third parties to the Seller and passed through to the
Business and
the Acquired Companies by DTF Trucking, Inc., including contract
carriage,
logistics services, freight payment fees and document retention and
retrieval
fees.
Section 4.7. Material Adverse Changes. (a) Except as
contemplated by
this Agreement or as set forth on Section 4.7(a) of the Seller
Disclosure
Schedule, since December 31, 2003, (i) the business of the Acquired
Companies
and the Business has been conducted in all material respects in the
ordinary
course of business consistent with past practice, and (ii) there
18
has not been and does not exist any change or event or effect that,
individually
or in the aggregate, has had or would reasonably be expected to
have a Material
Adverse Effect.
(b) Except as contemplated by this Agreement or as set
forth on Section
4.7(b) of the Seller Disclosure Schedule, since the Benchmark
Balance Sheet Date
and through the date of this Agreement, there has not occurred any
action, event
or failure to act that, if it had occurred after the date of this
Agreement,
would have required the consent of Purchaser under clauses (e),
(f), (q) and (s)
of Section 6.2.
Section 4.8. Taxes. Except as would not reasonably be
expected to,
individually or in the aggregate, have a Material Adverse Effect:
(a) all Tax Returns required to be filed by or with
respect to the
Acquired Companies or the Business have been timely filed
(taking into
account extensions) and all such Tax Returns are complete and
accurate;
(b) all Taxes due (whether or not shown on such Tax
Returns) or payable
pursuant to any assessments with respect to such Tax Returns
have been or
will be timely paid;
(c) there is no action, suit, investigation, audit, claim
or assessment
pending, with respect to Taxes of the Acquired Companies or
the Business;
(d) none of the Acquired Companies (or any affiliated
group of which an
Acquired Company is a member) has in effect any waiver of any
statute of
limitations in respect of Taxes or any extension of time with
respect to a
Tax assessment or deficiency;
(e) all amounts required to be withheld or collected for
payment by the
Acquired Companies, including from employee salaries, wages
and other
compensation, have been collected or withheld and paid to the
appropriate
taxing authorities;
(f) (i) no property of the Acquired Companies and none of
the Purchased
Assets is "tax exempt use property" within the meaning of
Section 168(h) of
the Code and (ii) none of the Acquired Companies is a party to
and none of
the Purchased Assets is subject to any lease made pursuant to
Section
168(f)(8) of the Internal Revenue Code of 1954;
(g) none of the Acquired Companies (A) has been a member
of an
affiliated group filing a consolidated federal income Tax
Return (other
than a group the common parent of which was Seller) or (B) has
any
liability for Taxes of any Person (other than Seller or any of
its
Subsidiaries) under Treasury Regulation Section 1.1502-6 (or
any similar
provision of state, local or foreign law), as transferee or
successor, by
contract or otherwise;
(h) the Acquired Companies are not bound by any Tax
sharing or Tax
allocation agreement or arrangement that will be effective as
of the
Closing Date or that will have further effect for any taxable
year (other
than any agreement exclusively between or among the Acquired
Companies);
19
(i) none of the Acquired Companies will be required to
include any item
of income in, or exclude any item of deduction from, taxable
income for any
taxable period (or portion thereof) ending after the Closing
Date (A) as a
result of any change in method of accounting for a taxable
period ending on
or prior to the Closing Date, (B) pursuant to a "closing
agreement" as
described in Section 7121 of the Code (or any corresponding or
similar
provision of state, local or foreign income Tax law) executed
on or prior
to the Closing Date, (C) as a result of an "intercompany
transaction"
consummated prior to the Closing or an "excess loss account"
existing at
the Closing as such terms are defined in Treasury Regulations
under Section
1502 of the Code (or any corresponding or similar provision of
state, local
or foreign income Tax law), (D) pursuant to an installment
sale or open
transaction disposition made prior to the Closing, or (E) as a
result of
any prepaid amount received prior to the Closing;
(j) within the last three years, none of the Acquired
Companies has
been a "distributing corporation" or a "controlled
corporation" in a
distribution that was purported or intended to be governed by
Section
355(a) of the Code;
(k) none of the Acquired Companies will, directly or
indirectly
(through a transfer of an interest in an entity that is
treated as a
corporation or a partnership for United States federal income
tax
purposes), sell, assign, transfer or convey any Purchased
Assets or
Purchased Shares to Purchaser pursuant to Section 1.2; and
(l) none of the Acquired Companies that is organized under
the laws of
Canada has distributed the stock of another Person, or has had
its stock
distributed by another Person, in a transaction that was
purported to be
governed, in whole or in part, by paragraph 55(3)(a) of the
Canadian Income
Tax Act, in either case in anticipation of or as part of a
plan with the
transactions contemplated by this Agreement.
Section 4.9. Real Property. Except as set forth on Section
4.9 of the
Seller Disclosure Schedule and except as would not reasonably be
expected to,
individually or in the aggregate, have a Material Adverse Effect:
(a) Section 4.9(a) of the Seller Disclosure Schedule
contains a true
and complete list of all real property (i) owned by Seller or
its
Subsidiaries Related to the Business and (ii) owned by any
Acquired
Company, and for each such properties, contains a correct
street address
and the record owner of such property. Copies of title reports
or policies
obtained by Seller with respect to each of the Owned Real
Properties have
previously been made available to Purchase to the extent that
such reports
and policies are in Seller's possession and control, as
applicable.
(b) Section 4.9(b) of the Seller Disclosure Schedule
contains a true
and complete list of (i) all real property Related to the
Business that
Seller or its Subsidiaries lease, sublease, license or
otherwise occupies
(whether as landlord, tenant, subtenant or other occupancy
arrangement) and
(ii) all real property that any Acquired Company leases,
subleases,
licenses or otherwise occupies (whether as landlord, tenant,
subtenant or
other occupancy arrangement) (collectively, the "LEASED REAL
PROPERTY"),
and for each Leased Real Property, identifies the street
address of such
Leased Real Property. True
20
and complete copies of all agreements pertaining to the Leased
Real
Property that have not been terminated or expired as of the
date hereof
have been made available to Purchaser.
(c) Seller, its applicable Subsidiary or an Acquired
Company has good
and valid title to all Owned Real Property and valid leasehold
estates in
all the Leased Real Properties, in each case free and clear of
all Liens
except Permitted Exceptions.
(d) None of the Owned Real Properties and the Leased Real
Properties is
subject to any lease, sublease, license or other agreement
granting to any
other Person any right to the use, occupancy or enjoyment of
such Owned
Real Property or Leased Real Property or any part thereof.
(e) Each Real Property Lease is in full force and effect
and is valid
and enforceable in accordance with its terms, and there is no
default under
any Real Property Lease either by Seller, its Subsidiaries or
any Acquired
Company or, to the Knowledge of Seller, by any other party
thereto, and no
event has occurred that, with the lapse of time or the giving
of notice or
both, would constitute a default by Seller, its Subsidiaries
or any
Acquired Company thereunder.
(f) To the Knowledge of Seller, each Owned Real Property
and Leased
Real Property complies with all applicable Laws and, since
December 31,
2003, no written notice of violation of any Law has been
received by
Seller, any of its Subsidiaries or any Acquired Company or has
been issued
by any Governmental Body with respect thereto.
(g) To the Knowledge of Seller, (i) Seller, its
Subsidiaries or any
Acquired Company have all certificates of occupancy and other
Permits of
any Governmental Body necessary for the current use and
operation by
Seller, its Subsidiaries or any Acquired Company of each Owned
Real
Property and Leased Real Property, (ii) Seller, its
Subsidiaries or any
Acquired Company have complied with all applicable conditions
of each such
Permit, and (iii) no default or violation by Seller, its
Subsidiaries or
any Acquired Company, or event that with the lapse of time or
giving of
notice or both would become a default or violation by Seller,
its
Subsidiaries or any Acquired Company, has occurred in the due
observance of
any such Permit.
(h) There does not exist any actual, pending or, to the
Knowledge of
Seller, threatened condemnation or eminent domain proceedings
that affect
any Owned Real Property or Leased Real Property, and Seller,
its
Subsidiaries or any Acquired Company have not received any
written notice
of the intention of any Governmental Body or other Person to
take or use
any Owned Real Property or Leased Real Property that is
material the
Business.
(i) To the Knowledge of Seller, no portion of any
facility, building,
improvement or other structure located on any of the Owned
Real Property or
the Leased Real Property has suffered any material damage by
fire or other
casualty within the past five years which has not been
substantially
repaired or restored.
21
Section 4.10. Tangible Personal Property. Except as would
not
reasonably be expected to, individually or in the aggregate, have a
Material
Adverse Effect:
(a) each lease of personal property (i) included in the
Purchased
Assets or to which any Acquired Company is a party requiring
lease payments
equal to or exceeding U.S.$100,000 per annum, or (ii) the loss
of which,
individually or in the aggregate with other such losses, would
reasonably
be expected to have a Material Adverse Effect (collectively,
the "PERSONAL
PROPERTY LEASES") is in full force and effect and is valid and
enforceable
in accordance with its terms, and there is no default under
any Personal
Property Lease either by Seller or its Subsidiaries or, to the
Knowledge of
Seller, by any other party thereto, and no event has occurred
that, with
the lapse of time or the giving of notice or both, would
constitute a
default by Seller or its Subsidiaries thereunder.
(b) Seller, its Subsidiaries or an Acquired Company has
good and valid
title to each item of tangible personal property in the Assets
purported to
be owned by Seller, its Subsidiaries or an Acquired Company on
the books
and records of such Seller, Subsidiaries or Acquired Company,
free and
clear of any and all Liens other than Permitted Exceptions.
Section 4.11. Intellectual Property. (a) As of the date
hereof, there
is no material Legal Proceeding pending and served or, to the
Knowledge of
Seller, pending and not served or threatened against Seller or any
of its
Subsidiaries, with respect to the Business, or any Acquired Company
(i)
regarding the ownership or scope of any of the Acquired
Intellectual Property or
is otherwise adverse to the use, registration, right to use,
validity or
enforceability of the Acquired Intellectual Property or (ii) that
asserts that
the operations by any Acquired Company or the operations of the
Business as
conducted by Seller or any of its Subsidiaries is or was infringing
or otherwise
in violation of any Intellectual Property of any other Person. To
Seller's
Knowledge, no Person is infringing or otherwise in violation of any
of the
Acquired Intellectual Property.
(b) To Seller's Knowledge, no breach or default by Seller,
its
Subsidiaries or the Acquired Companies or any other party thereto
exists under
any Contract pursuant to which Seller or any of its Subsidiaries
uses Acquired
Intellectual Property.
(c) Seller, its Subsidiaries and the Acquired Companies
have taken
reasonable steps to protect the material Acquired Intellectual
Property.
Section 4.12. Contracts. Section 4.12 of the Seller
Disclosure Schedule
sets forth a true, complete and correct list, as of the date
hereof, of each of
the following (1) to which any Acquired Company is a party or (2)
that is
Related to the Business to which Seller or any of its Subsidiaries
(other than
an Acquired Company) is a party (the Contracts set forth in clauses
(a) through
(s) below, collectively, the "MATERIAL BUSINESS CONTRACTS"):
(a) any Contract not made in the ordinary course of
business;
(b) any Contract or binding commitment for, or setting
forth any of the
terms or conditions relating to, the employment or termination
of
employment of any officer or
22
employee whose basic annual compensation (excluding bonus or
commission) is
in excess of U.S. $150,000;
(c) any severance Contract with any Person that provides
for severance
compensation in excess of U.S.$100,000 individually or
U.S.$1,000,000 in
the aggregate, including such Contracts (i) to employ or
terminate
executive officers or other personnel and other Contracts with
present or
former officers, directors or shareholders of any Acquired
Company or any
Business Employee or Acquired Company Employee or (ii) that
will result in
the payment by, or the creation of any commitment or
obligation (absolute
or contingent) to pay any severance, termination, "golden
parachute," or
other similar payments to any present or former personnel
resulting from
the consummation of the transactions contemplated by this
Agreement,
regardless of whether paid during, or following termination
of, employment;
(d) non-competition agreements;
(e) any employee collective bargaining agreement with any
labor union
covering any Acquired Company Employee, Business Employee or
Former
Acquired Company Employee;
(f) franchise, distributorship, dealer, advertising,
manufacturer's
representative or sales agency agreement involving annual
payments in
excess of U.S.$100,000;
(g) any Contracts (other than purchase orders) to acquire
or sell goods
with respect to the suppliers and customers set forth on
Section 4.12(g) of
the Seller Disclosure Schedule;
(h) any option, other agreement or right to purchase or
otherwise
acquire or sell or otherwise dispose of any interest in real
property
involving payments by Seller, its Subsidiaries or the Acquired
Companies in
excess of U.S.$250,000;
(i) any commitment to make any capital expenditure or to
purchase a
capital asset in excess of U.S.$250,000;
(j) any commitment for the purchase or sale of any of
material portion
of its assets other than in the ordinary course of business,
or any capital
stock of the Acquired Companies or any capital stock of Seller
or Seller
Subs;
(k) (i) any indenture, note, loan or credit agreement or
other Contract
relating to indebtedness or to the direct or indirect
guarantee or
assumption of the obligations of any other Person for borrowed
money, other
than indebtedness that is repaid prior to Closing or that does
not
constitute an Assumed Liability and (ii) any Contract or other
currently
outstanding instrument under which Seller or any of its
Subsidiaries, with
respect to the Business, or any of the Acquired Companies has,
directly or
indirectly, made any advance, loan, extension of credit (other
than an
account receivable) to any Person in excess of U.S.$100,000;
23
(l) any lease or similar agreement under which (i) any of
the Acquired
Companies, or, with respect to the Business, Seller or any of
its
Subsidiaries is the lessee of, or holds or uses, any
machinery, equipment,
vehicle or other tangible personal property owned by any third
Person for
an annual rent in excess of U.S.$500,000 or (ii) any of the
Acquired
Companies or, with respect to the Business, Seller or any of
its
Subsidiaries is the lessor of, or makes available for use by
any third
Person, any tangible personal property owned by Seller, its
Subsidiaries or
the Acquired Companies for an annual rent in excess of
U.S.$500,000;
(m) any material licenses, licensing arrangements and
other Contracts
providing in whole or in part for the use of, or limiting the
use of, the
Acquired Intellectual Property;
(n) any Contract entered into or assumed by the Acquired
Companies or,
with respect to the Business, Seller or any of its
Subsidiaries providing
for indemnification of any Person with respect to material
Liabilities
relating to any disposition, sale or other transfer or any
present or
former business or commercial activity which was either (A)
entered into
after January 1, 1999 and remains in effect or (B) pursuant to
which there
are any outstanding or unresolved indemnification claims in
excess of
U.S.$500,000 against the Acquired Companies;
(o) any Contract for the creation or formation of any
joint venture,
partnership or limited liability company that is not wholly
owned, directly
or indirectly, by Seller;
(p) Contracts providing for any sharing of revenues or
similar
arrangements;
(q) material Contracts containing any provision that
provides for a
breach, default, violation or acceleration thereof, or creates
in any part
the right to accelerate, terminate, modify or cancel any
obligation
thereunder or creates any Lien on any of the Purchased Assets
or the assets
of the Acquired Companies, in each case as a result of the
transactions
contemplated by this Agreement or the Seller Documents;
(r) any Contracts to which Seller, its Subsidiaries or the
Acquired
Companies is a party or is otherwise bound, which is
reasonably expected to
result in an annual expenditure by or revenue to Seller, it
Subsidiaries or
the Acquired Companies after the Closing Date of more than
U.S.$500,000 for
any such individual Contract; and
(s) any Contracts not otherwise described in clauses (a)
through (r)
above to which Seller, its Subsidiaries or the Acquired
Companies is a
party or is otherwise bound, which is material to the Acquired
Companies or
the Business.
Seller has made available to Purchaser true and complete copies of
each Material
Business Contract that is in writing and, if not in writing, a
written summary
thereof, including in each case amendments or waivers thereto, in
each case, as
in effect as of the date hereof. Except as would not reasonably be
expected to,
individually or in the aggregate, have a Material Adverse Effect,
Seller, its
Subsidiaries or the Acquired Companies, as applicable, have
performed all of the
obligations required to be performed by them to date under, and are
not in
breach of or default under, any of the Material Business Contracts,
and, to the
Knowledge of Seller, no other party to one of
24
the Material Business Contracts is in material default thereunder.
Except as
would not reasonably be expected to, individually or in the
aggregate, have a
Material Adverse Effect, none of Seller, its Subsidiaries or the
Acquired
Companies has received prior to the date hereof written notice of
(x)
noncompliance by Seller, its Subsidiaries or the Acquired Companies
or by any
counter party under any Material Business Contract, (y) early
termination of, or
request for a concession by, Seller, its Subsidiaries or the
Acquired Companies
under any Material Business Contract or (z) the intent of the
counterparty to
alter the provisions of any Material Business Contract by reason of
the
transactions contemplated by this Agreement or the Seller
Documents. Except as
would not reasonably be expected to, individually or in the
aggregate, have a
Material Adverse Effect, each Material Business Contract is in full
force and
effect and constitutes as of the date hereof the valid and legally
binding
obligation of Seller, its Subsidiaries or the Acquired Company
party thereto
(and, to the Knowledge of Seller, each other party thereto)
enforceable in
accordance with its terms, except as may be limited by applicable
bankruptcy,
insolvency, moratorium or other laws affecting the enforcement of
creditors'
rights generally or by general principles of equity.
Section 4.13. Employee Benefits. (a) Section 4.13(a)(i) of
the Seller
Disclosure Schedule sets forth a true and correct list, as of the
date hereof,
of all material Employee Benefit Plans. Section 4.13(a)(ii) of the
Seller
Disclosure Schedule identifies each material Employee Benefit Plan
that is
sponsored, maintained or contributed to solely by one or more of
the Acquired
Companies, or to which solely the Acquired Companies are required
to contribute
(collectively, together with the Canadian Pension Plan, the
"ACQUIRED COMPANY
PLANS") and each employment change in control or severance
agreement to which
any Business Employee or Acquired Company Employee is a party (with
the
exception of the Retention Agreements, the "INDIVIDUAL
AGREEMENTS").
(b) Except as would not reasonably be expected to,
individually or in
the aggregate, have a Material Adverse Effect, nothing has occurred
with respect
to any Acquired Company Plan in a jurisdiction other than the
United States that
could reasonably be expected to cause the loss of any tax approval
or
qualification of such plan in such jurisdiction. Except as would
not reasonably
be expected to, individually or in the aggregate, have a Material
Adverse
Effect, (i) each Acquired Company Plan has been established and
administered in
accordance with its terms, and in compliance with the applicable
provisions of
ERISA, the Code and other applicable laws, rules and regulations;
(ii) each
Acquired Company Plan which is intended to be qualified within the
meaning of
Section 401(a) of the Code is so qualified and has received a
favorable
determination letter as to its qualification; and (iii) no event
has occurred
and no condition exists that would subject Purchaser or the
Acquired Companies
or its Subsidiaries, by reason of the Acquired Companies or its
Subsidiaries
affiliation with any member of their "Controlled Group" (defined as
any
organization which is a member of a controlled group of
organization within the
meaning of Sections 414(b), (c), (m) or (o) of the Code), to any
tax, fine,
lien, penalty or other liability imposed by ERISA, the Code or
other applicable
laws, rules and regulations.
(c) Except as would not reasonably be expected to,
individually or in
the aggregate, have a Material Adverse Effect, all contributions,
premiums and
expenses required to be made by Law or by the terms of each
Acquired Company
Plan or any agreement relating thereto have been timely made.
25
(d) True and correct copies, as of the date hereof, of the
most recent
plan summaries, if any, and all amendments or supplements thereto,
with respect
to each of the Employee Benefit Plans (as applicable) have been
made available
by Seller to Purchaser. With respect to each Acquired Company Plan,
Seller has
provided or made available or, with respect to certain Acquired
Company Plans
listed on Section 4.13(a)(i) of the Seller Disclosure Schedules
under the
headings "Europe Overview" and "Mexico Overview," will provide or
make available
to Purchaser as soon as practicable following the date hereof a
current,
accurate and complete copy (or, to the extent no such copy exists,
an accurate
description) thereof and, to the extent applicable: (i) any related
trust
agreement or other funding instrument; (ii) the most recent
determination
letter, if applicable, (iii) any summary plan description and other
material
written communications by Seller or its Subsidiaries to the
Acquired Company
Employees concerning the extent of the benefits provided under an
Acquired
Company Plan; and (iv) for the most recent year (A) the Form 5500
and attached
schedules, (B) audited financial statements and (C) actuarial
valuation reports.
(e) Except as would not reasonably be expected to,
individually or in
the aggregate, have a Material Adverse Effect, there are no pending
or, to the
Knowledge of Seller, threatened Legal Proceedings, audits, actions,
suits,
claims or investigations against or involving any Acquired Company
Plan, the
assets of any such plan or the plan administrator or fiduciary of
any Acquired
Company Plan (other than routine benefit claims).
(f) Except as required by Law, neither the execution of
this Agreement
nor the consummation of the transactions contemplated hereby will
(whether alone
or together with any other event or events) (i) entitle any current
or former
Acquired Company Employee or Business Employee to any increase in
any
compensation or benefits (including any cash or equity award or
benefit), (ii)
accelerate the time at which any compensation, benefits or award
may become
payable, vested or required to be funded in respect of any Acquired
Company
Employee or Business Employee, and (iii) entitle any current or
former Acquired
Company Employee or Business Employee to any additional
compensation, benefits
or award. There is no Contract, plan or arrangement (written or
otherwise)
covering any current or Former Acquired Company Employee, Business
Employee or
independent contractor providing services to the Business that,
individually or
collectively, would be reasonably expected to give rise to the
payment of any
amount that would not be deductible pursuant to the terms of
Section 280G of the
Code.
(g) Except as set forth on Section 4.13(g) of the Seller
Disclosure
Schedules, no Acquired Company Plan is subject to Title IV of ERISA
and neither
the Acquired Companies nor their Subsidiaries has at any time
sponsored or
contributed to, or has had or had any liability or obligation in
respect of, any
such plan. With respect to any multiemployer plan (within the
meaning of Section
4001(a)(3) of ERISA) to which Seller, its Subsidiaries or any
member of their
Controlled Group has any liability or contributes (or has at any
time
contributed or had an obligation to contribute): (i) none of
Seller, its
Subsidiaries or any member of their Controlled Group has incurred
any material
withdrawal liability under Title IV of ERISA which remains
unsatisfied; and (ii)
to the Knowledge of Seller, no such multiemployer plan is in
reorganization or
insolvent (as those terms are defined in Sections 4241 and 4245 of
ERISA,
respectively).
(h) With respect to any Employee Benefit Plan, (1) no
written
communication has been received, within the immediately prior
two-year period,
from the Pension Benefit Guaranty
26
Corporation (the "PBGC") in respect of any Employee Benefit Plan
subject to
Title IV of ERISA concerning the funded status of any such plan and
(2) no
administrative investigation, audit or other administrative
proceeding by the
Department of Labor, the PBGC, the Internal Revenue Service or
other
governmental agencies are pending, in progress or, to the Knowledge
of Seller,
threatened (including any routine requests for information from the
PBGC).
(i) Except as set forth on Section 4.13(i) of the Seller
Disclosure
Schedules, no Employee Benefit Plan is maintained outside the
jurisdiction of
the United States, or covers any employee residing or working
outside the United
States (any such Employee Benefit Plan set forth on Section 4.13(i)
of the
Seller Disclosure Schedules, "FOREIGN BENEFIT PLANS").
(j) All current and former participants in the Canadian
Pension Plans
and the Acquired Company Plans are Business Employees, former
Business
Employees, Acquired Company Employees or former Acquired Company
Employees.
Section 4.14. Labor. (a) Set forth on Section 4.14(a) of
the Seller
Disclosure Schedule is a true and correct list, as of the date
hereof, of each
labor or collective bargaining agreement to which Seller, any of
its
Subsidiaries or any Acquired Company is a party that apply to
Acquired Company
Employees or Business Employees.
(b) No labor organization representing any Acquired
Company Employees
or Business Employees or group of Acquired Company Employees or
Business
Employees has made a written demand against Seller, any of its
Subsidiaries or
any Acquired Companies for recognition; and there are no
representation
proceedings or written petitions seeking a representation
proceeding presently
pending against Seller, any of its Subsidiaries or any Acquired
Companies
involving any Acquired Company Employees or Business Employees or,
to the
Knowledge of Seller, threatened in writing to be brought or filed
against
Seller, any of its Subsidiaries or any Acquired Companies Related
to the
Business with the United States National Labor Relations Board or
other labor
relations tribunal. To the Knowledge of Seller, there is no ongoing
organizing
activity involving Acquired Company Employees or Business Employees
pending or,
to the Knowledge of Seller, threatened in writing by any labor
organization or
group of Acquired Company Employees or Business Employees.
(c) Except as set forth on Section 4.14(c) of the Seller
Disclosure
Schedules, to the Knowledge of Seller, there are no (i) strikes,
work stoppages,
slowdowns, lockouts or arbitrations, (ii) material grievances or
other material
labor disputes or proceedings pending or threatened in writing
against or
involving any Acquired Company Employees or Business Employees, or
(iii) unfair
labor practice charges, grievances or complaints, actions,
inquiries,
proceedings or investigations pending or threatened in writing by
or on behalf
of any Acquired Company Employees or Business Employees, nor has
the Seller or
any of its Subsidiaries, with respect to the Business, or any
Acquired Company
experienced any such labor controversies within the past three
years.
(d) Except as would not reasonably be expected to,
individually or in
the aggregate, have a Material Adverse Effect, the Acquired
Companies and, with
respect to the Business, Seller and its Subsidiaries are in
compliance with all
Laws and Orders Related to the Business relating to the employment
of their
respective employees, including all such Laws and
27
Orders relating to wages, hours, collective bargaining, terms and
conditions of
employment, termination of employment, employment discrimination,
immigration,
disability, civil rights, occupational safety and health, workers'
compensation,
pay equity and the collection and payment of withholding and/or
social
contribution taxes and similar Taxes.
(e) Except as set forth on Section 4.14(e) of the Seller
Disclosure
Schedule, and except as would not reasonably be expected to,
individually or in
the aggregate, have a Material Adverse Effect, no Acquired Company
has, and,
with respect to the Business, none of Seller and its Subsidiaries
has, closed
any plant or facility, effectuated any layoffs of employees or
implemented any
early retirement, separation or window program material to the
Business within
the past two years, nor has Seller, any of its Subsidiaries or any
Acquired
Company announced any such action or program material to the
Business for the
future.
(f) No Acquired Company is a party to or otherwise bound
by any consent
decree with, or citation by, any Governmental Body related to
employees or
employment practices material to the Business.
Section 4.15. Litigation. (a) As of the date hereof, there
is no
material Legal Proceeding pending and served or, to the Knowledge
of Seller,
pending and not served or threatened against Seller, any of its
Subsidiaries or
any Acquired Company that challenges, or questions the validity of,
this
Agreement, any Seller Document or any action taken or to be taken
by Seller, any
of its Subsidiaries or any Acquired Company in connection with, or
which seeks
to enjoin or obtain monetary damages in respect of, the
consummation of the
transactions contemplated hereby or thereby.
(b) Section 4.15(b) of the Seller Disclosure Schedule sets
forth a true
and correct list, as of the date hereof, of all material pending
and served or,
to the Knowledge of Seller, pending and not served or threatened
Legal
Proceedings relating to any Acquired Company or Related to the
Business to which
Seller, any of its Subsidiaries or any Acquired Company is, or is
threatened to
be, a party.
(c) There is no Legal Proceeding or governmental
investigation pending
and served or, to the Knowledge of Seller, pending and not served
or threatened
against Seller, any of its Subsidiaries or any Acquired Company
that would
reasonably be expected to, individually or in the aggregate, have a
Material
Adverse Effect.
Section 4.16. Compliance with Other Laws; Permits. (a)
Each Acquired
Company is and, with respect to the Business, each of Seller and
its
Subsidiaries is, in compliance with all applicable Laws and all
decrees, Orders,
judgments and Permits of or from Governmental Bodies, except for
instances of
noncompliance or possible noncompliance that would not reasonably
be expected
to, individually or in the aggregate, have a Material Adverse
Effect.
(b) Except as would not reasonably be expected to,
individually or in
the aggregate, have a Material Adverse Effect: (i) Each Acquired
Company has,
and, with respect to the Business, each of Seller and its
Subsidiaries has, all
Permits and other authorizations of or from all Governmental Bodies
that are
necessary in the conduct of the Business as presently being
conducted, (ii) such
Permits and other authorizations are in full force and effect and
(iii) no
28
violations or claimed violations are pending before any
Governmental Body with
respect to such Permits and other authorizations nor, to the
Knowledge of
Seller, threatened, to suspend, revoke, revise, limit, restrict or
terminate any
such Permit or other authorizations or declare any such Permit or
other
authorizations invalid.
Section 4.17. Environmental Matters. Except as would not
reasonably be
expected to, individually or in the aggregate, have a Material
Adverse Effect:
(a) the Business, the Acquired Companies, the Purchased Assets and,
with respect
to the Business, Seller and its Subsidiaries are, and since January
1, 2001 have
been, in compliance with all applicable Environmental Laws, and
Seller and its
Subsidiaries have conducted the Business in compliance with all
applicable
Environmental Laws; (b) since January 1, 2003, neither Seller nor
its
Subsidiaries has received any written notices, demand letters or
written
requests for information from any federal, state, local or foreign
Governmental
Body indicating that Seller or any of its Subsidiaries may be in
violation of,
or liable under, any Environmental Law in connection with the
ownership or
operation of the Businesses; (c) there are no civil, criminal or
administrative
actions, suits, demands, claims, hearings, investigations or
proceedings pending
or threatened in writing against Seller, any of its Subsidiaries or
any of the
Purchased Assets relating to any violation, or alleged violation
of, or to any
liability or alleged liability relating to any Environmental Law in
connection
with or relating to the Business or the Acquired Companies; (d)
Seller and its
Subsidiaries are, and since January 1, 2001 have been, in
compliance with, all
Permits required under Environmental Laws in order to conduct the
Business
("ENVIRONMENTAL PERMITS"), and each of the Environmental Permits
relating to the
Business as currently conducted may be validly transferred to
Purchaser without
any alteration or amendment or any notice to or consent of any
third Person; (e)
Hazardous Materials have not been generated, transported, treated,
stored,
disposed of, arranged to be disposed of, Released or threatened to
be Released
at, on, from or under any of the Real Owned Property or the Leased
Real Property
in violation of, or in a manner or to a location that would
reasonably be
expected to give rise to liability under any Environmental Laws;
and (f) to the
Knowledge of Seller, none of the Acquired Companies, and with
respect to the
Business none of Seller and its Subsidiaries, has, since January 1,
2001,
assumed by contract any liabilities or obligations under or
relating to any
Environmental Laws.
Section 4.18. Ownership of Necessary Assets and Rights.
Except for the
(a) Excluded Assets, (b) the Intellectual Property covered by the
Transition
Intellectual Property License Agreement, (c) those assets and
services to be
provided pursuant to the terms of the Transition Agreements, (d)
the assets and
services provided to the Business by Seller or its Subsidiaries
prior to the
Closing set forth on Section 4.18 of the Seller Disclosure Schedule
and (e) the
Assets of which the Seller or its Subsidiaries transfers the
benefits and
burdens to Purchaser as of the Closing Date on the terms described
in Section
10.3, the Assets to be transferred to Purchaser on the Closing Date
and the
assets held by the Acquired Companies, taken together, are in all
material
respects sufficient for the conduct of the Business immediately
following the
Closing in substantially the same manner as currently conducted.
Section 4.19. Product Liability. Except for matters which
would not
reasonably be expected to, individually or in the aggregate, have a
Material
Adverse Effect, no Acquired Company has, and, with respect to the
Business, none
of Seller and its Subsidiaries has, received any written notice
relating to any
claim involving use of or exposure to any of the products (or any
part or
component) designed, manufactured, serviced or sold, or services
performed, by
the
29
Business or any Acquired Company, including for negligence, strict
liability,
design or manufacturing defect, conspiracy, failure to warn, or
breach of
express or implied warranties or merchantability or fitness for any
purpose or
use, or from any alleged breach of implied warranties or
representations, or any
alleged noncompliance with any applicable Laws pertaining to
products liability
matters.
Section 4.20. Affiliate Transactions. Except as set forth
on Section
4.20 of the Seller Disclosure Schedule, immediately following the
Closing, other
than this Agreement and the other documents and agreements
contemplated herein,
including the Transition Agreements, there will not be any
Contracts or other
transactions between any of Purchaser (as an assignee of Seller or
a Seller Sub
in respect of a Purchased Asset), the Acquired Companies or the
Transferred JVs,
on the one hand, and any of (a) Seller and its Subsidiaries (other
than the
Acquired Companies or a Transferred JV) or (b) the directors,
officers or
employees (or any immediate family member thereof) of any of Seller
and its
Subsidiaries (other than the Acquired Companies or a Transferred
JV) (except
those of a type available to employees generally), on the other
hand.
Section 4.21. Customers and Suppliers. Except as would not
reasonably
be expected to, individually or in the aggregate, have a Material
Adverse
Effect, since January 1, 2004 until the date hereof, none of the
suppliers or
customers identified on Section 4.12(g) of the Seller Disclosure
Schedule,
respectively, has significantly reduced the aggregate monthly
dollar volume of
business with the Acquired Companies or, with respect to the
Business, Seller or
any of its Subsidiaries (taken together as a whole) or provided
written notice
prior to the date hereof that such customer or supplier intends to
significantly
reduce the aggregate monthly dollar volume of business with the
Acquired
Companies and, with respect to the Business, Seller or any of its
Subsidiaries
(taken together as a whole).
Section 4.22. Brokers. Except for Credit Suisse First
Boston LLC and
Goldman, Sachs & Co., no Person has acted directly or
indirectly as a broker,
finder or financial advisor for Seller or any of its Subsidiaries
in connection
with the negotiations relating to or the transactions contemplated
hereby, and
no Person is entitled to, or will become entitled to, any fee or
commission or
like payment in respect thereof from Purchaser or, after the
Closing, an
Acquired Company based in any way on any agreement, arrangement or
understanding
made by or on behalf of Seller or any of its Subsidiaries. Seller
is solely
responsible for the fees and expenses of Credit Suisse First Boston
LLC and
Goldman, Sachs & Co., payable by Seller in connection with any
acquisition
advisory services provided to Seller and its Subsidiaries by Credit
Suisse First
Boston LLC and Goldman, Sachs & Co. or any of their respective
Affiliates in
connection with the transactions contemplated by this Agreement.
Section 4.23. No Other Representations or Warranties.
Except for the
representations and warranties contained in this Article IV and the
Seller
Documents, none of Seller, any Affiliate of Seller or any other
Person makes any
representations or warranties, and Seller hereby disclaims any
other
representations or warranties, whether made by Seller or any
Affiliate of
Seller, or any of their respective officers, directors, employees,
agents or
representatives, with respect to the execution and delivery of this
Agreement or
any Seller Document, the transactions contemplated hereby or the
Business,
notwithstanding the delivery or disclosure to Purchaser or its
representatives
of any documentation or other information with respect to any one
or more of the
foregoing. Except, in each case, for the representations and
warranties
contained in this Article
30
IV and the Seller Documents, Seller excludes and disclaims all
warranties,
including implied warranties of merchantability and fitness for a
particular
purpose, with respect to the Business or the Purchased Assets.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement
and to
consummate the transactions contemplated hereby, Purchaser hereby
represents and
warrants to Seller that, except as set forth in the applicable
corresponding
section of the Disclosure Schedule dated as of the date hereof and
delivered by
Purchaser to Seller (the "PURCHASER DISCLOSURE SCHEDULE"):
Section 5.1. Organization and Good Standing. Purchaser is
a corporation
duly organized, validly existing and in good standing under the
laws of
Delaware.
Section 5.2. Authorization of Agreement. Purchaser has all
requisite
corporate power and authority to execute and deliver this Agreement
and each
other agreement, document, instrument or certificate contemplated
hereby or to
be executed or delivered by Purchaser in connection herewith and to
consummate
the transactions contemplated hereby and thereby (all of such
agreements,
documents, instruments and certificates required to be executed or
delivered by
Purchaser and any of its Subsidiaries being hereinafter referred
to,
collectively, as the "PURCHASER DOCUMENTS"), and to perform fully
its
obligations hereunder and thereunder. The execution, delivery and
performance by
Purchaser of this Agreement and by Purchaser of each Purchaser
Document has been
duly authorized by all necessary corporate action on the part of
Purchaser, and
no other corporate proceeding on the part of Purchaser is necessary
to authorize
the execution, delivery or performance hereof or thereof or the
consummation of
the transactions contemplated hereby or thereby. This Agreement has
been, and
each of Purchaser Documents will be, when delivered to Seller, duly
executed and
delivered by Purchaser and (assuming the due authorization,
execution and
delivery by the other parties hereto) this Agreement constitutes,
and each of
Purchaser Documents when so executed and delivered will constitute,
the valid
and legally binding obligations of Purchaser, enforceable against
Purchaser in
accordance with its terms.
Section 5.3. No Conflicts; Consents of Third Parties. (a)
None of the
execution and delivery by Purchaser of this Agreement and Purchaser
Documents,
the consummation of the transactions contemplated hereby or thereby
or
compliance by Purchaser with any of the provisions hereof or
thereof will (i)
conflict with, or result in the breach of, any provision of the
certificate or
articles of incorporation, by-laws or similar organizational
documents of
Purchaser or (ii) conflict with, violate, result in the breach or
termination
of, or constitute (with or without notice or lapse of time or both)
a default,
give rise to any right of consent, cancellation, termination or
acceleration or
right to increase the obligations or otherwise modify the terms
under, or result
in the creation of any Lien on, any material assets of Purchaser,
under any
indenture, mortgage, loan agreement, Contract, lease, license,
instrument or
other arrangement to which Purchaser is a party or to which any of
such assets
are subject; or (iii) conflict with or constitute a violation of
any material
Law applicable to Purchaser, except in the case of each of clause
(ii) or (iii),
as
31
would not reasonably be expected to, individually or in the
aggregate, have a
material adverse effect on Purchaser's ability to perform its
obligations
hereunder.
(b) No consent, waiver, approval, Order, Permit or
authorization of, or
declaration or filing with, or notification or report to, any
Person or
Governmental Body is required to be obtained or made by Purchaser
in connection
with the execution, delivery and performance of this Agreement or
the Purchaser
Documents, the consummation of the transactions contemplated hereby
and thereby
or the compliance by Purchaser with any of the provisions hereof or
thereof,
except for (i) compliance with the applicable requirements of (x)
the HSR Act or
(y) the EC Competition Regulation, if necessary and (ii) other than
those
relating to the HSR Act and the EC Competition Regulation, such
consents,
waivers, approvals, Orders, Permits or authorizations of, or
declarations or
filings with, or notifications to, any Person or Governmental Body,
the failure
of which to be received or made would not reasonably be expected
to,
individually or in the aggregate, have a material adverse effect on
Purchaser's
ability to perform its obligations hereunder.
Section 5.4. Litigation. As of the date hereof, there is
no material
Legal Proceeding pending or, to the knowledge of Purchaser,
threatened against
Purchaser that challenges, or questions the validity of, this
Agreement, any
Purchaser Document or any action taken or to be taken by Purchaser
in connection
with, or that seeks to enjoin or obtain monetary damages in respect
of, the
consummation of the transactions contemplated hereby or thereby.
Section 5.5. Financing. Section 5.5 of the Purchaser
Disclosure
Schedule sets forth true, accurate and complete copies of (a) an
executed equity
commitment letter to provide equity financing to Purchaser, (b) an
executed debt
commitment letter and related term sheets (the "DEBT COMMITMENT
LETTER" and
together with the equity commitment letter described in subclause
(a), the
"FINANCING COMMITMENTS") pursuant to which, and subject to the
terms and
conditions thereof, certain lenders have committed to provide
Purchaser with
financing (th
|
