PURCHASE AGREEMENT

EXECUTION VERSION

 

________________________


PURCHASE AGREEMENT

________________________

among


MILACRON INC.,

MILACRON PLASTICS TECHNOLOGIES GROUP INC.,

D-M-E COMPANY,

CIMCOOL INDUSTRIAL PRODUCTS INC.,

MILACRON MARKETING COMPANY,

MILACRON CANADA LTD.,

MILACRON CAPITAL HOLDINGS B.V.

and

MI 363 BID LLC

Dated as of May 3, 2009

 

 

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TABLE OF CONTENTS

Page

ARTICLE I

DEFINITIONS

Section 1.01

Definitions

1

Section 1.02

Interpretation and Rules of Construction

20

 

ARTICLE II

PURCHASE AND SALE

Section 2.01

Purchase and Sale of Assets

21

Section 2.02

Assumption and Exclusion of Liabilities

25

Section 2.03

Purchase of Purchased Assets

30

Section 2.04

Purchase Price

30

Section 2.05

Allocation of the Purchase Price

31

Section 2.06

Determined Cure Costs

32

Section 2.07

Closing

32

Section 2.08

Closing Deliveries by the Sellers

32

Section 2.09

Closing Deliveries by the Purchaser

34

Section 2.10

Relinquishment of Control

35

Section 2.11

Assignment of Contracts and Rights

35

Section 2.12

Subject to Approval of Bankruptcy Courts

36

 

ARTICLE III

REPRESENTATIONS AND WARRANTIES
OF THE SELLERS

Section 3.01

Organization, Authority and Qualification of the Sellers

37

Section 3.02

Capitalization

37

Section 3.03

No Conflict

38

Section 3.04

Governmental Consents and Approvals

39

Section 3.05

SEC Filings; Financial Statements; Undisclosed Liabilities

39

Section 3.06

Litigation

40

Section 3.07

Compliance with Laws

40

Section 3.08

Environmental Matters

40

Section 3.09

Intellectual Property

42

Section 3.10

Real Property

44

Section 3.11

Employee Benefit Matters

45

Section 3.12

Taxes

47

Section 3.13

Material Contracts

48

Section 3.14

Customers

50

 

 

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Section 3.15

Suppliers

50

Section 3.16

Brokers

50

Section 3.17

Insurance

51

Section 3.18

Permits

51

Section 3.19

Absence of Certain Changes

51

Section 3.20

Labor Matters

52

Section 3.21

Assets

52

 

ARTICLE IV

REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER

Section 4.01

Organization and Authority of the Purchaser

52

Section 4.02

No Conflict

53

Section 4.03

Governmental Consents and Approvals

53

Section 4.04

Litigation

53

Section 4.05

Brokers and Finders

54

Section 4.06

Condition of the Business

54

Section 4.07

Financial Capability

54

Section 4.08

Canadian Regulations

54

 

ARTICLE V

ADDITIONAL AGREEMENTS

Section 5.01

Assumption of Assigned Contracts

54

Section 5.02

Conduct of Business Prior to the Closing

55

Section 5.03

Access to Information

58

Section 5.04

Regulatory and Other Authorizations; Notices and Consents

58

Section 5.05

Permits

58

Section 5.06

Environmental Related Actions

59

Section 5.07

Intellectual Property

59

Section 5.08

Further Action

60

Section 5.09

Cooperation and Exchange of Information

60

Section 5.10

Taxes

61

Section 5.11

Documents at Closing

62

Section 5.12

Nondisclosure

62

Section 5.13

Parties’ Access to Records After Closing

62

Section 5.14

Notification of Certain Matters

63

Section 5.15

Customers and Suppliers

63

Section 5.16

Payments, Proceeds and Omitted Assets.

63

Section 5.17

Transition Services Agreement

64

Section 5.18

Plan

64

Section 5.19

Sale of Certain Assets

64

Section 5.20

Certain Transactions

64

Section 5.21

Pre-Closing Budget / Post-Closing Budget

65

 

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Section 5.22

License Agreement

65

Section 5.23

Tax Structure

65

Section 5.24

Tail Insurance

66

Section 5.25

Consents

66

 

ARTICLE VI

EMPLOYEE MATTERS

Section 6.01

Employment

66

Section 6.02

Employee Benefits

67

 

ARTICLE VII

BANKRUPTCY COURT MATTERS

Section 7.01

363 Milestones

69

Section 7.02

Other Bankruptcy Covenants

70

 

ARTICLE VIII

CONDITIONS TO CLOSING

Section 8.01

Conditions to Obligations of the Sellers

71

Section 8.02

Conditions to Obligations of the Purchaser

71

 

ARTICLE IX

TERMINATION, AMENDMENT AND WAIVER

Section 9.01

Termination

73

Section 9.02

Effect of Termination

74

 

ARTICLE X

SURVIVAL OF REPRESENTATIONS AND WARRANTIES

Section 10.01

Survival of Representations and Warranties

76

 

ARTICLE XI

GENERAL PROVISIONS

Section 11.01

Expenses

76

Section 11.02

Notices

76

Section 11.03

Public Announcements

77

Section 11.04

Severability

77

Section 11.05

Entire Agreement

77

 

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Section 11.06

Successors and Assigns

78

Section 11.07

Reserved

78

Section 11.08

Amendment

78

Section 11.09

Waiver

78

Section 11.10

No Third Party Beneficiaries

78

Section 11.11

Governing Law

78

Section 11.12

Waiver of Jury Trial

79

Section 11.13

Currency

79

Section 11.14

Construction

79

Section 11.15

Counterparts

79

EXHIBITS

Exhibit A

Final DIP Order

Exhibit B

Post-Closing Budget

Exhibit C

Pre-Closing Budget

Exhibit D

Restructuring Support Agreement

Exhibit E

Sponsors

Exhibit F

U.S. Bid Procedures Order

Exhibit G

U.S. Sale Order

Exhibit H

Actuarial Report

SCHEDULES

Schedule I

Purchaser’s Disclosure Schedule

Schedule II

Sellers’ Disclosure Schedule

 

 

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PURCHASE AGREEMENT (this “ Agreement ”), dated as of May 3, 2009, among Milacron Inc., a Delaware corporation (“ Milacron ”), Milacron Plastics Technologies Group Inc., a Delaware corporation (“ Milacron Plastics ”), D-M-E Company, a Delaware corporation (“ DME ”), Cimcool Industrial Products Inc., a Delaware corporation (“ Cimcool ”), Milacron Marketing Company, an Ohio corporation (“ Milacron Marketing ”), Milacron Canada Ltd., an Ontario corporation (“ Milacron Canada ”), Milacron Capital Holdings B.V., a Dutch corporation (“ MCH B.V. ”; collectively with Milacron, Milacron Plastics, DME, Cimcool, Milacron Marketing and Milacron Canada, the “ Sellers ” or the “ Debtors ”), and MI 363 Bid LLC, a Delaware limited liability company (the “ Purchaser ”).

RECITALS

WHEREAS, the Sellers are engaged in the business of manufacturing, designing, distributing, marketing and selling (including through direct and independent channels, industrial distributors and brand names of other companies) injection molding systems, blow molding systems, extrusion systems, injection mold bases and related parts and services (including aftermarket maintenance) and industrial fluids, including coolants, lubricants, forming fluids, process cleaners and corrosion inhibitors and related services, under the Seller Brands (as defined below) and other brands (the “ Business ”);

WHEREAS, on March 10, 2009, the Debtors commenced voluntary proceedings (the “ U.S. Cases ”) under chapter 11 of title 11 of the United States Code (the “ Bankruptcy Code ”) in the United States Bankruptcy Court for the Southern District of Ohio, Western Division (the “ U.S. Bankruptcy Court ”);

WHEREAS, on March 11, 2009, Milacron Canada commenced a recognition proceeding (the “ Canadian Case ”, together with the U.S. Cases, the “ Cases ”) under section 18.6 of the Companies’ Creditors Arrangement Act (Canada) (“ CCAA ”) in the Ontario Superior Court of Justice (Commercial List) (the “ Canadian Court ”, together with the U.S. Bankruptcy Court, the “ Bankruptcy Courts ”, and each a “ Bankruptcy Court ”); and

WHEREAS, the Sellers wish to sell, assign and transfer to the Purchaser, and the Purchaser wishes to purchase and acquire from the Sellers, pursuant to Sections 105, 363 and 365 of the Bankruptcy Code, the Purchased Assets (as defined below), free and clear of all liens, claims and encumbrances of any nature whatsoever, other than Permitted Encumbrances and Assumed Liabilities, and the Purchaser is willing to assume all of the Assumed Liabilities (as defined below), all upon the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the promises and the representations, warranties, agreements and covenants hereinafter set forth, and intending to be legally bound, the Sellers and the Purchaser hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01

Definitions .  For purposes of this Agreement:

 

 

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“ 363 Milestones ” has the meaning given to it in Section 7.01(a)(iii) .

“ ABL DIP Charge ” means a court-ordered charge in favor of ABL Secured Parties (as defined in the Canadian Recognition Order).

“ Accrued Liabilities ” means the Assumed Liabilities that have accrued or have been incurred as of the Closing Date or which are owing to any Person as of the Closing Date.

“ Action ” means any claim, as defined in Section 101(5) of the Bankruptcy Code, action, complaint, suit, litigation, arbitration, appeal, petition, demand, inquiry, hearing, proceeding, investigation or other dispute, whether civil, criminal, administrative or otherwise, at law or in equity, by or before any Governmental Authority or any third Person.

“ Additional Consideration ” means cash, notes or equity interests in the Purchaser equivalent in value to 7% of the Purchase Agreement Bid Amount.  For greater certainty, as of the date hereof, the aggregate value of the Additional Consideration shall be equal to $427,000.

“ Administration Charge ” means a court-ordered charge in favor of the Information Officer, counsel to the Information Officer and counsel to Milacron Canada.

“ Administrative Claims ” means all Claims against any Debtor for costs and expenses of administration under Section 503(b)(1) of the Bankruptcy Code.

“ Affiliate ” or “ Affiliated ” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person.

“ Agreement ” has the meaning given to it in the preamble hereto.

“ Agreement Structure ” has the meaning given to it in Section 5.23(a) .

“ Allocation ” has the meaning given to it in Section 2.05 .

“ Allowed ” means, with respect to any Claim, such Claim or portion thereof:  (a) as to which no objection or request for estimation has been Filed, no litigation has commenced, and the Purchaser otherwise has assented to the validity of such Claim; (b) as to which any objection or request for estimation that has been Filed has been settled, waived, withdrawn or denied by a Final Order; or (c) that is allowed by (i) a Final Order or (ii) an agreement between the holder of such Claim and the Purchaser.

“ Alternate Structure ” has the meaning given to it in Section 5.23(c) .

“ Alternative Transaction ” means any merger, recapitalization, share exchange, debt-for-equity exchange, distribution of securities for the benefit of the stakeholders of the Sellers, consolidation or similar transaction involving a sale or purchase (directly or through a proposed investment in equity securities, debt securities or claims of creditors) of any of the Purchased Assets of any of the Sellers or all or any of the shares of capital stock of any of the Sellers.

 

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“ Ancillary Agreements ” means the Bill of Sale and Assignment and Assumption Agreement, the Deeds, the Assignments of Leased Properties, the Assignments of Intellectual Property and any other instrument or agreement contemplated by this Agreement or the foregoing.

“ Assigned Contract ” means any Contract that relates to, or is used or useful in or held for use in, the Business, including any Material Contract, that is not an Excluded Contract.

“ Assignments of Intellectual Property ” means the assignments of Business Intellectual Property to be executed and delivered by the applicable Sellers or Subsidiary of any Seller and the Purchaser at the Closing, in form and substance to be agreed by the parties hereto before the Closing.

“ Assignments of Leased Properties ” means the assignments of Leased Properties to be executed and delivered by the applicable Sellers and the Purchaser at the Closing with respect to the leases of the Leased Real Property that are Assigned Contracts, in form and substance to be agreed by the parties hereto before the Closing.

“ Assumed Employee Plan ” has the meaning given to it in Section 6.02(a) .

“ Assumed Liabilities ” has the meaning given to it in Section 2.02(a) .

“ Assumed Payables ” means only unpaid Allowed Administrative Claims owed to third parties, including payroll, to the extent incurred by the Sellers in the ordinary course of business (and not in violation of this Agreement) or with the prior written consent of the Purchaser, from the Petition Date through Closing, and specifically excluding all Excluded Liabilities.

“ Assumption Notice ” has the meaning given to it in Section 2.11(b) .

“ Auction ” has the meaning given to it in the U.S. Bid Procedures Order.

“ Auction Account ” has the meaning given to it in the Bid Procedures.

“ Bankruptcy Code ” has the meaning given to it in the recitals hereto.

“ Bankruptcy Court ” and “ Bankruptcy Courts ” have the meanings given to them in the recitals hereto.

“ BIA ” means Bankruptcy and Insolvency Act (Canada).

“ Bid Procedures ” means the bid procedures attached to the U.S. Bid Procedures Order.

“ Bid Procedures Orders ” means, collectively, the U.S. Bid Procedures Order and the Canadian Bid Procedures Recognition Order.

 

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“ Bill of Sale and Assignment and Assumption Agreement ” means the Bill of Sale and Assignment to be executed and delivered by the Sellers to the Purchaser at the Closing and the Assumption Agreement to be executed and delivered by the Sellers and the Purchaser at the Closing, in form and substance to be agreed by the parties hereto before the Closing.

“ Business ” has the meaning given to it in the recitals hereto.

“ Business Day ” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in the City of New York.

“ Business Employees ” means all current employees, officers and directors of the Sellers and their Affiliates who perform, as of the date hereof, services related to the Business.

“ Business Intellectual Property ” means all Owned Intellectual Property and all Licensed Intellectual Property.

“ Business IP Agreements ” means all IP Agreements that relate to, are used, useful or held for use in, or have been acquired in connection with the operation of the Business.

“ Business IT Assets ” means all IT Assets that (i) are owned by or under obligation of assignment to any Seller, or (ii) a Seller is licensed or otherwise permitted by other Persons to use pursuant to the Business IP Agreements, in each case of (i) and (ii), that relate to, are used, useful or held for use in, or have been acquired in connection with the operation of the Business.

“ Business Software ” means all Software included in the Business IT Assets.

“ BWC ” has the meaning given to it in Section 2.02(a)(vii) .

“ Canadian Assets ” means Purchased Assets owned or held for use, prior to the Closing Date, by Milacron Canada or otherwise located in Canada.

“ Canadian Assumed Employee Plan ” means an Assumed Employee Plan that provides benefits to a Canadian Employee.

“ Canadian Bid Procedures Recognition Order ” means an Order of the Canadian Court pursuant to section 18.6 of the CCAA recognizing the U.S. Bid Procedures Order, in form and substance reasonably satisfactory to the Purchaser.

“ Canadian Case ” has the meaning given to it in the recitals hereto.

“ Canadian Contracts ” means Contracts to which Milacron Canada is a party, other than Excluded Contracts.

“ Canadian Court ” has the meaning given to it in the recitals hereto.

 

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“ Canadian Court-Ordered Charges ” means collectively, court-ordered charges granted pursuant to the Canadian Recognition Order, which include, (i) the Administration Charge, (ii) the Term DIP Charge, (iii) the ABL DIP Charge, and (iv) the Directors’ Charge.

“ Canadian Employees ” means those Transferred Employees who were employed by Milacron Canada immediately prior to the Closing (and not employed by any other Seller).

“ Canadian Purchase Price ” means the amount of consideration payable by the Canadian Purchaser to Milacron Canada for the Canadian Assets.

“ Canadian Purchaser ” means the Affiliate of the Purchaser designated by the Purchaser to purchase the Canadian Assets.

“ Canadian Recognition Order ” means Amended and Restated Initial Order made by the Canadian Court on March 10, 2009.

“ Canadian Sale Recognition Order ” means an Order of the Canadian Court pursuant to section 18.6 of the CCAA recognizing the U.S. Sale Order and vesting title to the Canadian Assets in the Canadian Purchaser free and clear of all Liens, except for Permitted Encumbrances, in form and substance reasonably satisfactory to the Purchaser.

“ Canadian Trade Payables ” means the payables of Milacron Canada to third parties that were incurred prior to the Petition Date but have not been paid as of the Closing, which payables shall not exceed $750,000, either individually or in the aggregate.

“ Cases ” has the meaning given to it in the recitals hereto.

“ Cash ” means all cash and cash equivalents as determined in accordance with GAAP, net of all outstanding checks and transfers; provided , that “Cash” shall not be less than $0.00.

“ CCAA ” has the meaning given to it in the recitals hereto.

“ Cimcool ” has the meaning set forth in the preamble hereto.

“ Claim ” means a “claim” as defined in section 101(5) of the Bankruptcy Code against any Debtor.

“ Closing ” has the meaning given to it in Section 2.07 .

“ Closing Date ” has the meaning given to it in Section 2.07 .

“ Company Interest ” has the meaning given to it in Section 3.02(a) .

“ Company Subsidiaries ” has the meaning given to it in Section 3.02(a) .

“ Consent ” means any consent, waiver, approval, order or authorization of, or registration, declaration or filing with or notice to, any Governmental Authority or other Person.

 

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“ Consent Pending Contract ” has the meaning given to it in Section 2.11(a) .

“ Contract ” means any contract, arrangement, note, bond, commitment, purchase order, sales order, franchise, guarantee, indemnity, indenture, instrument, lease, license or other agreement, understanding, instrument or obligation, whether written or oral, all amendments, supplements and modifications of or for any of the foregoing and all rights and interests arising thereunder or in connection therewith, other than any Employee Plan.

“ Contract Retention Period ” has the meaning given to it in Section 2.11(b) .

“ control ” (including the terms “ controlled by ” and “ under common control with ”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs, policies or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by Contract, credit arrangement or otherwise.

“ Conveyance Taxes ” means all sales, use, value added, transfer, stamp, stock transfer, real property transfer and similar Taxes including, for greater certainty, GST, in each case applicable to the Transactions.

“ Corporate Name ” has the meaning given to it in Section 5.07(a) .

“ Credit Bid ” means the “credit bid” (pursuant to Section 363(k) of the Bankruptcy Code) of any of the secured obligations owing to the Sponsors under the Senior Secured Notes.

“ Creditors’ Committee ” means the Official Committee of Unsecured Creditors appointed by the Office of United States Trustee in the U.S. Cases.

“ Debtors ” has the meaning given to it in the recitals hereto.

“ Deed ” means, with respect to each parcel of Owned Real Property, the instrument of conveyance customary to the applicable jurisdiction in registrable or recordable form where applicable, to be executed and delivered by the applicable Seller at the Closing in order to convey to the Purchaser such Seller’s interest, if any, in such parcel of Owned Real Property, free and clear of all Liens, in form and substance to be agreed by the parties hereto before the Closing.

“ Determined Cure Costs ” means the amounts required to be paid to counterparties of Assigned Contracts on account of the assumption thereof pursuant to Section 365 of the Bankruptcy Code (or otherwise but without duplication upon the assignment of Assigned Contracts which are Canadian Contracts), which amounts shall be determined by written agreement between the Purchaser and such counterparty or pursuant to a Final Order of the U.S. Bankruptcy Court, which Final Order may be the U.S. Sale Order.

“ DIP ABL Credit Agreement ” means that certain Senior Secured, Super-Priority Debtor-In-Possession Credit Agreement, dated as of March 11, 2009, by and among Milacron and each of the other borrowers signatory thereto, certain other subsidiaries of Milacron, the

 

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lenders signatory thereto from time to time, General Electric Capital Corporation, as administrative agent, and GE Capital Markets, Inc.

“ DIP ABL Facility ” means the credit facility available pursuant to the terms of the DIP ABL Credit Agreement.

“ DIP Facility ” means the DIP ABL Facility together with the DIP Term Loan Facility.

“ DIP Note Purchase Agreement ” means that certain Senior Secured Superpriority Priming Debtor-In-Possession Note Purchase Agreement, dated on or about April 29, 2009, by and among Milacron, as issuer, certain affiliates of Milacron, as guarantors, DDJ Capital Management LLC, as administrative agent and registrar, and purchasers party thereto.

“ DIP Term Loan Credit Agreement ” means that certain Senior Secured Superpriority Priming Debtor-In-Possession Credit Agreement, dated as of March 10, 2009, by and among Milacron, as borrower, certain affiliates of Milacron, as guarantors, DDJ Capital Management LLC, as administrative agent, Avenue Investments, L.P., the affiliates of DDJ Capital Management LLC listed on the signature pages thereto and the other banks, financial institutions and other institutions from time to time party thereto.

“ DIP Term Loan Facility ” means the facility available pursuant to (i) the DIP Term Loan Credit Agreement, (ii) the DIP Note Purchase Agreement and (iii) any other instrument or agreement contemplated by the foregoing.

“ Directors’ Charge ” means a court-ordered charge in favor of directors and officers of Milacron Canada.

“ DME ” has the meaning set forth in the preamble hereto.

“ Employee Plans ” has the meaning given to it in Section 3.11(a) .

“ Environmental Claim ” means any and all Actions, summons, citations, directives, orders, consents, decrees, claims, judgments or notices of non-compliance or violation or Liability or potential Liability by any Governmental Authority or Person relating to any Environmental Law, Environmental Permit or Hazardous Material.

“ Environmental Law ” means all federal, national, supranational, foreign, state, provincial, county, municipal or local or similar Laws, or legally enforceable requirements of any Governmental Authority including all arbitration awards, relating to pollution, protection of the environment, human or worker health and safety, exposure to Hazardous Materials, and natural resource damages, including the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq., as amended (“ CERCLA ”); the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., as amended; the Clean Air Act, 42 U.S.C. 7401 et seq., as amended; the Clean Water Act, 33 U.S.C. 1251 et seq., as amended; the Occupational Safety and Health Act, 29 U.S.C. 655 et seq., as amended; the Emergency Planning & Community Right-To-Know Act of 1986, 42 U.S.C. 11001 et seq., as amended; the Noise Control Act of 1972, 42 U.S.C. 4901 et seq., as amended; the Oil Pollution Act, 33 U.S.C. 2701,

 

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et seq., as amended; the Toxic Substances Control Act, 42 U.S.C. 2601, et seq., as amended, and any similar federal, national, supranational, foreign, state, provincial, county, municipal or local Law.

“ Environmental Liabilities ” means all Liabilities, monetary or other obligations, losses, damages, punitive damages (including consequential damages, treble damages and natural resource damages), costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants), fines, penalties, sanctions and interest to the extent relating to or arising from (a) any pre-Closing Releases by any of the Sellers, their Subsidiaries or their predecessors-in-interest, or at, on, in, or migrating to or from the Owned Real Property, the Leased Real Property or any property or facility currently or formerly owned, leased, used or operated by any of the Sellers, their Subsidiaries or their predecessors-in-interest, or in connection with the Business, including with respect to any Remedial Action relating thereto and to any post-Closing leaching or migration of such Hazardous Materials, (b) any Releases at any time at, on, in, or migrating to or from any real property to which Hazardous Materials were sent prior to Closing for storage, treatment, disposal or recycling (i) by any of the Sellers, their Subsidiaries or their predecessors-in-interest or (ii) from the Owned Real Property, the Leased Real Property, or any property or facility currently or formerly owned, leased, used or operated by any of the Sellers, their Subsidiaries or their predecessors-in-interest, or in connection with the Business, including with respect to any Remedial Action relating thereto, (c) exposure to Hazardous Materials at any time (i) in connection with any product sold or distributed prior to Closing by any of the Sellers, their Subsidiaries or their predecessors-in-interest, or (ii) in connection with the Business, any of the Sellers, their Subsidiaries or their predecessors-in-interest prior to the Closing, (d) exposure to Hazardous Materials prior to Closing at the Owned Real Property, the Leased Real Property, or any property or facility currently or formerly owned, leased, used or operated by any of the Sellers, their Subsidiaries or their predecessors-in-interest, (e) any pre-Closing violation, alleged violation, non-compliance or alleged non-compliance of or with any Environmental Law or Environmental Permit by any of the Sellers, their Subsidiaries or their predecessors-in-interest, or in connection with the Business, the Owned Real Property, the Leased Real Property, or any property or facility currently or formerly owned, leased, used or operated by any of the Sellers, their Subsidiaries or their predecessors-in-interest, and any continuation of such violation or non-compliance subsequent to the Closing, and (f) any Environmental Claim, whenever made or asserted, relating to any action, omission, event, circumstance or condition first occurring, failing to occur or existing prior to Closing and relating to the Business, any of the Sellers, their Subsidiaries or their predecessors-in-interest, the Owned Real Property, the Leased Real Property, or any property or facility currently or formerly owned, leased, used or operated by any of the Sellers, their Subsidiaries or their predecessors-in-interest.

“ Environmental Permits ” means any permit, registration, certificate, qualification, approval, identification number, license and other authorization required under or issued pursuant to any applicable Environmental Law or otherwise required by any applicable Governmental Authority in connection with Environmental Laws.

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

 

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“ ETA ” means the Excise Tax Act (Canada).

“ European Shares ” has the meaning given to it in Section 2.01(a) .

“ European Subsidiaries ” means Milacron B.V. and Milacron Investments B.V.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder.

“ Excluded Assets ” has the meaning given to it in Section 2.01(b) .

“ Excluded Contract ” has the meaning given to it in Section 5.01(a) .

“ Excluded Liabilities ” has the meaning given to it in Section 2.02(b) .

“ Excluded Taxes ” means (i) all Taxes (other than Conveyance Taxes) relating to the Purchased Assets or the Business for any Pre-Closing Period, (ii) all Income Taxes imposed on the Sellers or the Transferred Subsidiaries for any taxable period and (iii) all Taxes relating to the Excluded Assets for any taxable period.  For purposes of this Agreement, in the case of any Straddle Period, (a) Property Taxes relating to the Purchased Assets allocable to the Pre-Closing Period shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that fall within the portion of the Straddle Period ending on (and including) the Closing Date and the denominator of which is the number of days in the entire Straddle Period, and (b) Taxes (other than Property Taxes) relating to the Purchased Assets for the Pre-Closing Period shall be computed as if such taxable period ended on (and included) the Closing Date.

“ File ”, “ Filed ” or “ Filing ” means file, filed or filing with a Bankruptcy Court (or agent thereof) in connection with the Cases.

“ Final DIP Order ” means the Final Order attached hereto as Exhibit A .

“ Final Order ” means an order or judgment entered by a Bankruptcy Court or any other court of competent jurisdiction:  (i) that has not been reversed, stayed, appealed, modified, amended, revoked, vacated, varied, or set aside, and as to which (A) any right to appeal or seek leave to appeal, certiorari, review, reargument, stay or rehearing has been waived or (B) the time to appeal or seek certiorari, review, reargument, stay or rehearing has expired and no appeal or petition for certiorari, review, reargument, stay or rehearing is pending; or (ii) as to which an appeal has been taken or petition for certiorari, review, reargument, stay or rehearing has been filed and (A) such appeal or petition for certiorari, review, reargument, stay or rehearing has been resolved by the highest court to which the order or judgment was appealed or from which certiorari, review, reargument, stay or rehearing was sought and (B) the time to appeal further or seek certiorari, further review, reargument, stay or rehearing has expired and no such further appeal or petition for certiorari, further review, reargument, stay or rehearing is pending; provided , however , that no order or judgment will fail to be a “Final Order” solely because of the possibility that a motion pursuant to Section 502(j) or 1144 of the Bankruptcy Code, Rule 59 or 60 of the Federal Rules of Civil Procedure or Rule 9024 of the Federal Rules of Bankruptcy

 

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Procedure, or similar statutory or regulatory provisions or court process under Canadian Law, may be filed with respect to such order or judgment.

“ GAAP ” means United States generally accepted accounting principles in effect from time to time throughout the periods involved.

“ Governmental Authority ” means any federal, national, supranational, foreign, state, provincial, local, county, municipal or other government, any governmental, regulatory or administrative authority, agency, department, bureau, board, commission or official or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority, or any court (including the Bankruptcy Courts), tribunal, judicial or arbitral body, or any Self-Regulatory Organization.

“ G Reorganization Structure ” has the meaning given to it in Section 5.23(b).

“ GST ” means goods and services tax and harmonized sales tax imposed under Part IX of the ETA and any similar value added or multi-staged tax imposed under any applicable provincial or territorial legislation, including for greater certainty, QST.

“ Hazardous Material ” shall include, without regard to amount and/or concentration: (a) any material, substance, element, compound or chemical that is defined, listed or otherwise classified as a waste, contaminant, pollutant, or as toxic, hazardous or extremely hazardous, or as a medical waste, biohazardous or infectious waste, special waste, or solid waste under Environmental Laws; (b) petroleum, petroleum-based or petroleum-derived products; (c) polychlorinated biphenyls; (d) toxic mold; (e) any material, substance, element, compound or chemical exhibiting a hazardous characteristic including but not limited to corrosivity, ignitibility, toxicity or reactivity as well as any radioactive or explosive materials, substances, elements, compounds or chemicals; and (f) any raw materials or building components, including but not limited to asbestos-containing materials and manufactured products, containing Hazardous Materials.

“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder.

“ Income Taxes ” means Taxes imposed on overall gross or net income or profits, franchise, net worth, capital and similar “doing business” Taxes and branch profits and similar Taxes.

“ Indebtedness ” means any liabilities or obligations, whether contingent or otherwise (including penalties, interest and premiums), including any of the following:  (i) in respect of borrowed money or with respect to advances of any kind (including under the DIP Facility); (ii) evidenced by bonds, notes, debentures or similar instruments; (iii) for the payment of money relating to any capitalized lease obligation; (iv) for the deferred purchase price of goods or services or for trade or barter arrangements; (v) evidenced by a letter of credit or reimbursement obligation with respect to any letter of credit; (vi) under interest rate, currency or commodity hedging, swap or similar derivative transactions; (vii) all guarantees, assumptions, endorsements or other agreements and arrangements having the economic effect of a guarantee of any Person by the Sellers; and (viii) all liabilities and other obligations of others of the kind

 

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described in clauses (i) – (vii) that are secured by a Lien on any properties or assets of the Sellers.

“ Indenture Trustee ” means U.S. Bank National Association, as trustee under the Senior Secured Notes Indenture.

“ Information Officer ” means RSM Richter Inc. in its capacity as information officer in the Canadian Case appointed by the Canadian Court pursuant to the Canadian Recognition Order.

“ Intellectual Property ” means, in any and all jurisdictions worldwide, all (i) patents, utility models, inventions and discoveries, statutory invention registrations, mask works, invention disclosures, and industrial designs, community designs and other designs, (ii) Trademarks, (iii) works of authorship (including Software) and copyrights, and moral rights, design rights and database rights therein and thereto, (iv) confidential and proprietary information, including trade secrets, know-how and invention rights, (v) rights of privacy and publicity, (vi) registrations, applications, renewals and extensions for any of the foregoing in (i)-(v), and (vii) any and all other proprietary rights.

“ Intercompany Loans ” means, as of the Closing, any indebtedness owed to any Seller by any Transferred Subsidiary.

“ Inventory ” means all inventory and all finished goods, merchandise, work in progress, residual by-products, samples, supplies, spare parts, shipping materials, packaging materials, raw materials and other consumables relating to the Business and owned by the Sellers and maintained, held or stored by or for any of the Sellers as of the Closing Date, wherever located, and any prepaid deposits for any of the same.

“ IP Agreements ” means all Contracts concerning Intellectual Property or IT Assets to which any Seller is a party or beneficiary or by which any Seller, or any of its properties or assets, may be bound, including all (i) licenses of Intellectual Property by any Seller to any Person, (ii) licenses of Intellectual Property by any Person to any Seller, (iii) Contracts between any Person and any Seller relating to the transfer, development, maintenance or use of Intellectual Property or IT Assets, the development or transmission of data, or the use, modification, framing, linking, advertisement or other practices with respect to Internet websites, and (iv) consents, settlements and Orders governing the use, validity or enforceability of Intellectual Property or IT Assets.

“ IRS ” means the Internal Revenue Service of the United States.

“ IT Assets ” means Software, systems, servers, computers, hardware, firmware, middleware, networks, data communications lines, routers, hubs, switches and all other information technology equipment, and all associated documentation.

“ Law ” means any federal, national, supranational, foreign, state, provincial, local, county, municipal or similar statute, law, common law, writ, injunction, decree, guideline, policy, ordinance, regulation, rule, code, Order, constitution, treaty, requirement, judgment or

 

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judicial or administrative doctrines enacted, promulgated, issued, enforced or entered by any Governmental Authority.

“ Leased Real Property ” means the leasehold interests of the Sellers and the security deposits appurtenant thereto described in Section 3.10(b) of the Sellers’ Disclosure Schedule, together with (a) any prepaid rent, security deposits and options to renew or purchase relating to the foregoing and (b) all buildings and other structures, facilities or improvements currently or hereafter located thereon, all fixtures, systems and items of personal property of such Seller used or useful in the Business attached or appurtenant thereto and all easements, rights of way, options, renewal rights, licenses, rights and appurtenances relating to the foregoing.

“ Liabilities ” means any and all debts, liabilities, obligations to perform services and other obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, known or unknown or determined or determinable, including those arising under any Law, Action or Order and those arising under any Contract.

“ License Agreement ” has the meaning given to it in Section 5.22 .

“ Licensed Intellectual Property ” means all Intellectual Property that a Seller (or Subsidiary of any Seller) is licensed or otherwise permitted by other Persons to use pursuant to the Business IP Agreements and that relates to, is used, useful or held for use in, or which license or right to use has been acquired in connection with, the operation of the Business.

“ Liens ” means any mortgage, deed of trust, pledge, assignment, security interest, encumbrance, lien, Mechanics Lien, charge, hypothecation, deemed trust, Action, easement, charge or otherwise, or claim of any kind or nature whatsoever in respect of any property, other than any license of Intellectual Property, including any of the foregoing created by, arising under, or evidenced by any conditional sale or other title retention agreement, the interest of a lessor under a capital lease, any financing lease having substantially the same economic effect as any of the foregoing, or the filing of a financing statement naming the owner of the property as to which such lien relates as the debtor under the Uniform Commercial Code or any comparable Law in any other jurisdiction.

“ Lloyds Facility ” means the credit facility available pursuant to the terms of that certain Asset Based Finance Agreement, dated as of March 12, 2008, by and among Lloyds TSB Bank Plc, Netherlands Branch and Belgium Branch, Lloyds TSB Commercial Finance Limited, Cimcool Europe B.V., Cimcool Industrial Products B.V., D-M-E Europe CVBA, Ferromatik Milacron Maschinenbau GmbH, Milacron Kunststoffmaschinen Europa GmbH, Milacron B.V. and Milacron Nederland B.V.

“ Material Adverse Effect ” means any event, circumstance, development, change or effect that, individually or in the aggregate with all other events, circumstances, developments, changes or effects, (a) has had or would reasonably be expected to have or result in a material adverse effect on the results of operations, properties, assets, liabilities or condition (financial or otherwise) of the Business, the Purchased Assets or the Assumed Liabilities, taken as a whole or (b) has materially and adversely affected or would reasonably be expected to materially and adversely affect the ability of the Purchaser to operate or conduct the Business in

 

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the manner in which it is currently operated or conducted or in the manner in which it is currently contemplated to be operated or conducted by the Sellers, except, in each case, for any such effects resulting from (i) changes caused by acts of war, armed hostilities or terrorism occurring after the date hereof; (ii) any change, due to general economic conditions, new Laws, or otherwise, that generally affects any industry in which any of the Sellers operates, unless such change has a disproportionate impact on the Sellers or the Business; and (iii) any failure by any Seller to meet any internal projections, budgets, plans or forecasts (excluding the Post-Closing Budget) (but not excluding the underlying cause of such failure to meet internal projections, budgets, plans or forecasts if such cause would otherwise be encompassed by clause (a) or (b) above).

“ Material Contracts ” has the meaning given to it in Section 3.13(a) .

“ MCH B.V. ” has the meaning set forth in the preamble hereto.

“ Mechanics Liens ” means mechanics’, carriers’, workers’, repairers’, workmens’, builders’, contractors’, suppliers of materials or architects’ and other similar liens incidental to construction, maintenance or repair operations arising or incurred in the ordinary course of business relating to obligations as to which there is no default on the part of any of the Sellers, or pledges, deposits or other liens securing the performance of bids, trade contracts, leases or statutory obligations (including workers’ compensation, unemployment insurance or other social security legislation).

“ Milacron ” has the meaning set forth in the preamble hereto.

“ Milacron Canada ” has the meaning set forth in the preamble hereto.

“ Milacron Marketing ” has the meaning set forth in the preamble hereto.

“ Milacron Plastics ” has the meaning set forth in the preamble hereto.

“ Milacron SEC Documents ” means all forms, reports, schedules, statements and other documents (including, in each case, exhibits, schedules, amendments or supplements thereto, and any other information incorporated by reference therein) required to be filed with the SEC by Milacron since January 1, 2006 under the Exchange Act or the Securities Act (as such documents have been amended or supplemented between the time of their respective filing and the date of this Agreement).

“ Objecting Assigned Contract Party ” has the meaning given to it in Section 5.01(d) .

“ Off-the-Shelf Software “ means all Business Software that is commercially available off-the-shelf Software that (i) is not material to the Business, (ii) has not been modified or customized for any Seller, and (iii) is licensed to a Seller for a one-time or annual fee of $10,000 or less.

“ Ohio Workers’ Compensation Program ” has the meaning given to it in Section 2.02(a)(vii) .

 

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“ Omitted Assets ” has the meaning given to it in Section 5.16(c) .

“ Order ” means any order, writ, judgment, injunction, decree, rule, ruling, directive, stipulation, determination or award made, issued or entered by or with any Governmental Authority, whether preliminary, interlocutory or final, including any Order entered in the Cases (including the Sale Orders).

“ Owned Intellectual Property ” means all Intellectual Property owned by or under obligation of assignment to any Seller (or Subsidiary of any Seller) that relates to, is used, useful or held for use in, or has been acquired in connection with, the operation of the Business.

“ Owned Real Property ” means the real property and interests therein described in Section 3.09(a) of the Sellers’ Disclosure Schedule, including all buildings and other structures, facilities or improvements currently or hereafter located thereon, all fixtures, systems, and items of personal property attached or appurtenant thereto and all interests, easements, rights of way, licenses, rights, privileges, covenants, restrictive covenants, possibilities of reverter, options to purchase, hereditaments and other appurtenances relating to the foregoing.

“ Owned Software ” has the meaning given to it in Section 3.09(g) .

“ Permits ” has the meaning given to it in Section 2.01(a)(xi) .

“ Permitted Encumbrances ” means (a) statutory Liens for current Taxes assessments or other governmental charges not yet due or delinquent (or which may be paid without interest or penalties) or which are being contested in good faith in proper proceedings and for which adequate reserves have been established in accordance with GAAP; (b) zoning, landmarking, entitlement, conservation restriction and other land use and environmental regulations by Governmental Authorities which do not materially interfere with the occupancy or current use of the Purchased Assets; (c) all covenants, conditions, restrictions, easements, rights of way, licenses and other similar interests in land (excluding, for greater certainty, as of the Closing, any mortgages, assignments of rents or any other financial charges except those in the preceding clause (a)) which were recorded as of the Petition Date, including any rights of way, easements, or other instruments granting similar rights that may be registered or recorded after such times without the consent of the Sellers and which do not materially interfere with the occupancy, value or current use of any such real property or any interests therein; (d) Mechanics Liens, solely to the extent such Liens are senior to the Liens securing the obligations under the DIP Term Loan Facility and the Senior Secured Notes; (e) matters which would be disclosed by an accurate survey or inspection of the real property which do not or could not materially impair the occupancy, value or current use of such real property which they encumber; and (f) encumbrances associated with, and financing statements evidencing, the rights of equipment lessors under all leases of personal property that relate to the Business, including all benefits, rights and options pursuant to such leases, provided that they are related to the Assigned Contracts.

“ Person ” means any individual, partnership, firm, corporation, limited liability company, association, joint venture, trust, Governmental Authority, first nation, aboriginal or

 

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native group or band, unincorporated organization or other entity, as well as any syndicate or group that would be deemed to be a person under Section 13(d)(3) of the Exchange Act.

“ Petition Date ” means March 10, 2009, the date on which the U.S. Cases were commenced by the filing of voluntary petitions under the Bankruptcy Code.

“ Plan ” means any plan of reorganization or liquidation or a plan of compromise or arrangement relating to one or more of the Debtors and Filed after the date hereof that contains terms and conditions that, to the extent they relate to this Agreement, the Purchaser or the Transactions, are satisfactory to the Purchaser, in its sole discretion.

“ Post-Closing Budget ” means the budget attached hereto as Exhibit B , or as may be amended by the Purchaser with the consent of the Sellers or by the Sellers with the consent of the Purchaser, in each case from time to time prior to or after the Closing.

“ Pre-Closing Budget ” means the budget attached hereto as Exhibit C , or as may be amended by the Purchaser with the consent of the Sellers or by the Sellers with the consent of the Purchaser, in each case from time to time prior to the Closing.

“ Pre-Closing Period ” means any taxable period (or portion of a Straddle Period) ending on or prior to the Closing Date.

“ Property Taxes ” means real and personal ad valorem property Taxes and any other Taxes (other than sales, use, value added, transfer, stamp, stock transfer, real property transfer and similar Taxes) imposed on a periodic basis and measured by the value of any item of property.

“ Public Software ” means any Software that contains, or is derived in any manner from, in whole or in part, any Software that is distributed as freeware, shareware, open source Software (e.g., Linux) or similar licensing or distribution models that (i) require the licensing or distribution of source code to any other Person, (ii) prohibit or limit the receipt of consideration in connection with sublicensing or distributing any Software, (iii) except as specifically permitted by applicable Law, allow any Person to decompile, disassemble or otherwise reverse-engineer any Software, or (iv) require the licensing of any Software to any other Person for the purpose of making derivative works.  For the avoidance of doubt, “ Public Software ” includes Software licensed or distributed under any of the following licenses or distribution models (or licenses or distribution models similar thereto):  (i) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Standards Source License (SISSL); (vii) the BSD License; (viii) Red Hat Linux; (ix) the Apache License; and (x) any other license or distribution model described by the Open Source Initiative as set forth on www.opensource.org.

“ Purchase Agreement Bid Amount ” means the credit bid for cancellation of an aggregate amount of $6.1 million of Senior Secured Notes held or beneficially owed by the Sponsors (or any Person Affiliated with or managed by a Sponsor) (such amount to include the par value of such notes, plus accrued and unpaid interest through the Petition Date).

 

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“ Purchased Assets ” has the meaning given to it in Section 2.01(a) .

“ Purchase Price ” has the meaning given to it in Section 2.04 .

“ Purchaser ” has the meaning given to it in the preamble hereto.

“ Purchaser Plans ” has the meaning given to it in Section 6.02(c) .

“ Purchaser Savings Plan ” has the meaning given to it in Section 6.02(b) .

“ Purchaser’s Disclosure Schedule ” means the disclosure schedule attached hereto as Schedule I , dated as of the date hereof, delivered by the Purchaser to Milacron in connection with this Agreement.

“ Purchaser’s Financial Advisor ” means AlixPartners LLP.

“ Purchaser’s Knowledge ” means the actual knowledge of the Persons set forth in Section 1.01(a) of the Purchaser’s Disclosure Schedule, in each case after reasonable due inquiry.

“ QST ” means tax imposed under the Quebec Sales Tax Act.

“ Real Property ” means the Owned Real Property and the Leased Real Property.

“ Receivables ” means any and all accounts receivable, notes and other amounts receivable from third parties, including customers, arising from the conduct of the Business before the Closing, whether or not in the ordinary course of business, together with any unpaid financing charges accrued thereon.

“ Registered ” means issued by, registered, recorded or filed with, renewed by or the subject of a pending application before any Governmental Authority or Internet domain name registrar.

“ Regulations ” means the Treasury Regulations (including Temporary Regulations) promulgated by the United States Department of Treasury with respect to the Tax Code or other federal tax statutes.

“ Release ” means any spilling, leaking, pumping, emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping, or disposing of Hazardous Materials (including the abandonment or discarding of barrels, containers or other closed receptacles containing Hazardous Materials) into the environment.

“ Remedial Action ” means (i) to “remove” or any “removal”, or to “remedy” or any “remedial action” as those terms are defined in CERCLA, and (ii) any other actions taken to (A) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor environment; (B) prevent or minimize a

 

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Release or threatened Release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; (C) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; (D) abate, encapsulate or remove any building material that contains Hazardous Materials, (E) correct a condition of non-compliance with Environmental Laws; or (F) address, correct or respond to an Environmental Claim.

“ Representatives ” means, with respect to a particular Person, any director, officer, employee or other representative of such Person, including such Person’s attorneys, financial advisors and restructuring advisors.  Without limiting the generality of the foregoing, the Sellers’ Financial Advisor and Sellers’ Restructuring Advisor shall be deemed Representatives of the Sellers.

“ Required Consent ” has the meaning given to it in Section 8.02(h) .

“ Restructuring Support Agreement ” means that certain Restructuring Support Agreement, dated as of March 9, 2009, among the RSA Sponsors and Milacron and various of its direct and indirect subsidiaries party thereto, a copy of which is attached hereto as Exhibit D .

“ RSA Sponsors ” means the Initial Sponsors (as defined in the Restructuring Support Agreement).

“ Sale Hearing ” means the hearing before the U.S. Bankruptcy Court to consider the U.S. Sale Order.

“ Sale Orders ” means collectively the U.S. Sale Order and the Canadian Sale Recognition Order.

“ SEC ” means the United States Securities and Exchange Commission.

“ Securities Act ” means the Securities Act of 1933, as amended, including the rules and regulations promulgated thereunder.

“ Self-Regulatory Organization ” means the New York Stock Exchange or any other securities exchange, futures exchange, contract market, any other exchange or corporation or similar self-regulatory body or organization applicable to a party to this Agreement.

“ Seller Brands ” means the Trademarks that are owned by the Sellers and set forth in Section 1.01(b) of the Sellers’ Disclosure Schedule.

“ Sellers ” has the meaning given to it in the preamble hereto.

“ Sellers’ Damage Claim ” has the meaning given to it in Section 9.02(f)(i) .

“ Sellers’ Disclosure Schedule ” means the disclosure schedule attached hereto as Schedule II , dated as of the date hereof, delivered by the Sellers to the Purchaser in connection with this Agreement.

 

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“ Sellers’ Expenses ” means any costs and expenses (including all legal, accounting, financial advisory, valuation, investment banking and other third party advisory or consulting fees and expenses including those of Dinsmore & Shohl LLP, Torys LLP, Sellers’ Financial Advisor and Sellers’ Restructuring Advisor) incurred by or on behalf of the Sellers in connection with the Cases or the Transactions.

“ Sellers’ Financial Advisor ” means Conway, Del Genio, Gries & Co. LLC.

“ Sellers’ Knowledge ” means the actual knowledge of the Persons set forth in Section 1.01(c) of the Sellers’ Disclosure Schedule, in each case after reasonable due inquiry.

“ Sellers’ Release ” has the meaning given to it in Section 2.08(k) .

“ Sellers’ Restructuring Advisor ” means Rothschild Inc.

“ Senior Secured Exchange Notes ” means the 11-½% senior secured notes of Milacron, due May 15, 2011, issued in an exchange offer pursuant to the Senior Secured Notes Indenture.

“ Senior Secured Notes ” means the 11- ½% senior secured notes of Milacron, due 2011, in an aggregate principal amount of $225,000,000 issued pursuant to the Senior Secured Notes Indenture and the Senior Secured Exchange Notes.

“ Senior Secured Notes Indenture ” means that certain Indenture, dated as of May 26, 2004, by and among U.S. Bank National Association, as trustee, Milacron Escrow Corporation, as issuer, which merged with and into Milacron, and the guarantors party thereto, as may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“ Shares ” means the European Shares and the Transferred Shares.

“ Software ” means all (i) computer programs, applications, systems and code, including software implementations of algorithms, models and methodologies, program interfaces, and source code and object code, (ii) Internet and intranet websites, databases and compilations, including data and collections of data, whether machine-readable or otherwise, (iii) development and design tools, library functions and compilers, (iv) technology supporting websites, and the contents and audiovisual displays of websites, and (v) media, documentation and other works of authorship, including user manuals and training materials, relating to or embodying any of the foregoing or on which any of the foregoing is recorded.

“ Sponsors’ Additional Consideration Lien Release ” means the release by the Sponsors of the Lien on the Additional Consideration securing the obligations owing under the Senior Secured Notes Indenture, in form and substance to be agreed by the parties hereto before the Closing.

“ Sponsors’ Release ” has the meaning given to it in Section 2.09(a)(vi) .

“ Sponsors ” means the Persons set forth on Exhibit E hereto.

 

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“ Straddle Period ” means any taxable period beginning on or prior to and ending after the Closing Date.

“ Subsequent Filings ” means, collectively, all subsequent filings made after the date of this Agreement amending or superseding any Milacron SEC Documents (including any statements or schedules therein) and any forms, reports, schedules, statements, registration statements, proxy statements, or other documents (including in each case, exhibits, schedules, amendments or supplements thereto, and any other information incorporated by reference therein) filed with the SEC after the date of this Agreement.

“ Subsidiary ” means, when used with reference to any Person, any corporation, partnership, limited liability company, joint venture, stock company or other entity of which such Person (either acting alone or together with its other Subsidiaries), directly or indirectly, owns or has the power to vote or to exercise a controlling influence with respect to 50% of more of the capital stock or other voting interests, the holders of which are entitled to vote for the election of a majority of the board of directors or any similar governing body of such corporation, partnership, limited liability company, joint venture, stock company or other entity.

“ Successful Bidder ” has the meaning given to it in the Bid Procedures.

“ Tax ” means any (a) federal, state, provincial, territorial, municipal, local or foreign income, profits, capital, business, franchise, gross receipts, customs, duties, net worth, sales, use, goods and services, harmonized sales, gross receipts, withholding, value added, ad valorem, employment, social security, disability, occupation, pension, real property, personal property (tangible and intangible), stamp, duty, stamp duty, transfer, land transfer, conveyance, severance, production, development, occupancy, employer health, payroll, health, social services, education, employment insurance, health insurance and Canada, Quebec or other government pension plan premiums or contributions, excise and other taxes, withholdings, duties, levies, imposts and other similar charges and assessments (including any and all fines, penalties and additions attributable to or otherwise imposed on or with respect to any such taxes, charges, fees, levies or other assessments, and interest thereon) imposed by or on behalf of any Governmental Authority or other taxing authority, and (b) liability for the payment of any Tax (i) as a result of being a member of a consolidated, combined, unitary or affiliated group that includes any other Person, (ii) by reason of any obligation to indemnify or otherwise assume or succeed to the liability of any other Person for Taxes, including a Tax sharing, Tax indemnity or similar agreement, or (iii) by reason of transferee or successor liability.

“ Tax Code ” means the U.S. Internal Revenue Code of 1986, as amended through the date hereof.

“ Tax Documents ” has the meaning given to it in Section 2.01(a)(vii) .

“ Tax Returns ” means any and all returns, reports, documents, declarations, claims for refund or other information or filings required to be supplied to any Governmental Authority or other taxing authority (foreign or domestic) with respect to Taxes together with all schedules or attachments thereto, including information returns where required, any documents with respect to or accompanying payments of estimated Taxes, or any documents with respect to or

 

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accompanying requests for the extension of time in which to file any such report, return, document, declaration or other information, and including any amendments of any of the foregoing.

“ Termination Date ” means the Commitment Termination Date (as defined in the DIP ABL Credit Agreement).

“ Term DIP Charge ” means a court-ordered charge in favor of Term Secured Parties (as defined in the Canadian Recognition Order).

“ Trademarks ” means, in any and all jurisdictions worldwide, all trademarks, service marks, domain names, uniform resource locators, trade dress, trade names, geographical indications and other identifiers of source or goodwill, including the goodwill symbolized thereby or associated therewith.

“ Transactions ” means the transactions contemplated by this Agreement and the Ancillary Agreements.

“ Transfer ” or “ Transferred ” has the meaning given to it in Section 2.11 .

“ Transferred Employees ” has the meaning given to it Section 6.01(a) .

“ Transferred Shares ” has the meaning given to it in Section 2.01(a)(xxii) .

“ Transferred Subsidiaries ” means the European Subsidiaries and those Affiliates of the Sellers listed in Section 2.01(a)(xxvi) of the Sellers’ Disclosure Schedule, as such schedule may be amended on or prior to June 5, 2009.

“ Transition Services Agreement ” has the meaning given to it in Section 5.17 .

“ U.S. Bankruptcy Court ” has the meaning given to it in the recitals hereto.

“ U.S. Bid Procedures Order ” means an Order of the U.S. Bankruptcy Court in substantially the form attached hereto as Exhibit F.

“ U.S. Cases ” has the meaning given to it in the recitals hereto.

“ U.S. Sale Order ” means an Order of the U.S Bankruptcy Court in substantially the form attached hereto as Exhibit G.

Section 1.02

Interpretation and Rules of Construction .  In this Agreement, except to the extent otherwise provided or that the context otherwise requires:

(a)

when a reference is made in this Agreement to an Article, Section or Schedule, such reference is to an Article or Section of or Schedule to this Agreement unless otherwise indicated;

(b)

the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;

 

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(c)

whenever the words “include”, “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”;

(d)

the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;

(e)

all terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein;

(f)

the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms;

(g)

references to a Person are also to the Person’s heirs, executors, administrators, personal representatives, successors and permitted assigns, as applicable;

(h)

references to agreements are also to the same agreements as amended, restated or otherwise modified from time to time; and

(i)

references to the Sellers are also to each Seller individually.

ARTICLE II

PURCHASE AND SALE

Section 2.01

Purchase and Sale of Assets .

(a)

Upon the terms and subject to the conditions of this Agreement, and subject to the entry of the Sale Orders, at the Closing, each Seller (other than MCH B.V.) shall sell, assign, transfer, convey and deliver, or cause to be sold, assigned, transferred, conveyed and delivered, to the Purchaser or one or more of its designated Affiliates (which, in the case of the Canadian Assets, shall be the Canadian Purchaser), free and clear of all Liens, claims and encumbrances of any nature whatsoever other than Permitted Encumbrances and Assumed Liabilities, and the Purchaser or any such designated Affiliate shall purchase and acquire from such Seller, all of such Seller’s right, title and interest, as of the Closing Date, in and to any and all assets, properties, rights and claims of any kind or nature, whether tangible or intangible, real, personal or mixed, wherever located and whether or not carried or reflected on the books and records of any of the Sellers, whether now existing or hereinafter acquired, which relate to the Business or which are used, useful or held for use in, or have been acquired in connection with, the operation of the Business, excluding only the Excluded Assets (such assets, properties, rights and claims to be acquired hereunder, collectively and together with the European Shares, the “ Purchased Assets ”).  The Purchased Assets shall include, but not be limited to, the following (except to the extent any such asset constitutes an Excluded Asset):

(i)

the Real Property, save and except any Real Property that is an Excluded Asset or any Leased Real Property leased under a lease that is an Excluded Contract;

 

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(ii)

all tangible personal property related to, used, useful or held for use in the conduct of the Business, including equipment, machinery, tools, supplies, spare parts, molds, trucks, cars, other vehicles and rolling stock, furniture, fixtures, trade fixtures, leasehold improvements, office materials and supplies, and other tangible personal property located on, or off, the premises of the Real Property;

(iii)

the Inventory;

(iv)

all Cash, unaffiliated securities (including any equity interests, warrants, options or similar rights) and negotiable instruments of the Sellers on hand, in lock boxes, in financial institutions or elsewhere;

(v)

the Receivables and the Intercompany Loans;

(vi)

all files, operating data, books of account, general and financial records, personnel records of the Transferred Employees (to the extent legally transferable), invoices, shipping records, supplier lists, price lists, vendor lists, mailing lists, catalogs, sales promotion literature, advertising materials, brochures, standard forms of documents, manuals of operations or business procedures, research materials, contracts, instruments, filings, administrative and pricing manuals, correspondence, memoranda, plats, architectural plans, surveys, title insurance policies, drawings, plans and specifications, environmental reports, maintenance or service records, soil tests, engineering reports, operating records, operating safety manuals, and other material and documents, books (including true and complete copies of applicable portions of minute books), records and files (whether or not in the possession of any of the Sellers or their respective Representatives, stored in hardcopy form or on magnetic, optical or other media) and any rights thereto owned, associated with or employed by any of the Sellers in the conduct of the Business or otherwise related to the Purchased Assets or the Assumed Liabilities;

(vii)

copies of all Tax Returns and related schedules, workpapers and other material supporting information (“ Tax Documents ”) pertaining to the Purchased Assets or the Business (other than Tax Documents relating solely to Income Taxes of the Sellers);

(viii)

all goodwill associated with the Business or the Purchased Assets, including rights under any confidentiality agreements executed by any third party for the benefit of any of the Sellers and assigned to the Purchaser to the extent relating to the Business;

(ix)

the Owned Intellectual Property (including the Seller Brands), the Business IP Agreements and the Business IT Assets, including all (A) copies and tangible embodiments thereof in whatever form or medium (including electronic media), (B) claims and causes of action arising out of or related to, including all rights to sue, recover damages and obtain other relief for, any past, present and future infringement, passing off, misappropriation, breach or other violation of or conflict with any of the foregoing, (C) rights of priority and renewal in respect thereof, (D) rights therein provided by

 

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international treaties and conventions, (E) rights to any and all income, royalties, damages, fees and other payments now or hereafter due or payable in respect thereto, and (F) other rights associated therewith;

(x)

all Assigned Contracts and all of the rights and benefits accruing thereunder, including any outstanding deposits thereunder (with respect to any Consent Pending Contract, subject to the terms of Section 2.11(b) and (c) hereof);

(xi)

all franchises, permits, consents, certificates, clearances, approvals, exceptions, variances, permissions, filings, publications, declarations, notices, licenses, agreements, waivers and authorizations, including Environmental Permits, of or with any Governmental Authority related to the Business or used, useful or held for use by any of the Sellers in connection with the Business, and all rights and benefits accruing thereunder (collectively, the “ Permits ”) and all deposits and prepaid expenses held by third parties and/or Governmental Authority, save and except any such Permit that is an Excluded Contract;

(xii)

the sales and promotional literature, customer lists and other sales related materials related to the Business or used, useful or held for use in the Business;

(xiii)

the amount of, and all rights to any, insurance proceeds received by any of the Sellers after the date hereof in respect of the loss, destruction or condemnation of any Purchased Assets occurring prior to, on or after the Closing or relating to any Assumed Liabilities;

(xiv)

all unexpired, transferable warranties, indemnities, or guarantees from any third party with respect to any Purchased Asset, including any parcel of Real Property and any item of personal property or equipment;

(xv)

to the extent transferable and to the extent related to the Purchased Assets, the full benefit of all representations, warranties, guarantees, indemnities, undertakings, certificates, covenants, agreements and all security therefor received by any of the Sellers on the purchase or other acquisition of the Purchased Assets;

(xvi)

any rights, demands, claims, credits, allowances, rebates, or rights of setoff (other than against the Sellers or any of their Affiliates) arising out of or relating to any of the Purchased Assets;

(xvii)

all deposits received by any of the Sellers from any tenants with respect to any leases of Owned Real Property assumed by the Purchaser or from any subtenants with respect to any subleases of Leased Real Property assumed by the Purchaser;

(xviii)

all prepaid and deferred items that relate to the Business or the Purchased Assets, including all prepaid rentals and unbilled charges, fees and deposits;

(xix)

rights to any Tax refunds or credits for Taxes;

 

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(xx)

all confidentiality, non-compete, non-solicit and similar agreements entered into by any of the Sellers, or any of their respective Representatives, and assumed by the Purchaser in connection with a sale of the Purchased Assets or the Business;

(xxi)

all current and prior insurance policies (to the extent assignable) of any of the Sellers that relate to the Business or any of the Assumed Liabilities and all rights and benefits of any nature with respect thereto, including all insurance recoveries or refunds thereunder and rights to assert claims with respect to any such insurance recoveries, and further including all insurance policies, letters of credit, and any other assets related to coverage for workers’ compensation claims that are Assumed Liabilities and any tail insurance policies that provide coverage to the Sellers or their Affiliates or Representatives after the Closing Date;

(xxii)

all of the issued and outstanding capital stock of the Transferred Subsidiaries (the “ Transferred Shares ”) (other than the European Shares) and any warrants, options or similar rights to acquire the same;

(xxiii)

any Action (and any related rights or demands) of the Sellers and their estates under chapter 5 of the Bankruptcy Code or, in the case of Milacron Canada, under the BIA, and all proceeds thereof, subject to the terms and conditions of the U.S. Sale Order;

(xxiv)

any Action (and any related rights or demands) of the Sellers and their estates, to the extent related to the Business or the Purchased Assets existing as of the Closing Date (including any Action (and any related rights or demands) of any Seller and its estate against the board of directors of any other Seller) and any Action (and any related rights or demands) set forth in Section 2.01(a)(xxiv) of the Sellers’ Disclosure Schedule;

(xxv)

all other assets, properties, rights and claims of any of the Sellers of any kind or nature which relate to the Business, which are used or useful in or held for use in the Business, or which relate to the Purchased Assets (in each case, other than the Excluded Assets) not otherwise described above; and

(xxvi)

any right, property or asset that is listed or described in Section 2.01(a)(xxvi) of the Sellers’ Disclosure Schedule.

In addition to the Purchaser’s rights under Section 5.01(a) , the Purchaser, in its sole and absolute discretion, shall be allowed to amend or supplement Section 2.01(a)(xxvi) of the Sellers’ Disclosure Schedule at any time prior to June 5, 2009, provided , however , that Section 2.01(a)(xxvi) of the Sellers’ Disclosure Schedule shall not be amended or supplemented to include any Excluded Asset that has been divested by a Seller (or in respect of which a Seller has entered into a binding agreement to so divest), in each case with the approval of the Purchaser and the Bankruptcy Court(s) (as applicable) in accordance with Section 5.02 prior to the date on which the Purchaser has requested that Section 2.01(a)(xxvi) of the Sellers’ Disclosure Schedule be amended or supplemented to include any such asset.

 

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Subject to Section 5.20 , in addition, at the Closing, MCH B.V. shall sell, assign, transfer, convey and deliver, or cause to be sold, assigned, transferred, conveyed and delivered, to the Purchaser or its designated Affiliate, free and clear of all Liens, claims and encumbrances of any nature whatsoever other than Permitted Encumbrances and Assumed Liabilities, and the Purchaser or any such designated Affiliate shall purchase and acquire from MCH B.V., all of such Seller’s right, title and interest, as of the Closing Date, in and to all of the issued and outstanding shares of capital stock of the European Subsidiaries (the “ European Shares ”).

(b)

Notwithstanding anything in Section 2.01(a) to the contrary, the Sellers shall not sell, convey, assign, transfer or deliver, nor cause to be sold, conveyed, assigned, transferred or delivered, to the Purchaser, and the Purchaser shall not purchase or acquire, and the Purchased Assets shall not include, the Sellers’ right, title and interest in and to the following assets of the Sellers (collectively, the “ Excluded Assets ”):

(i)

all documents and other items related solely to the organization, existence or capitalization of the Sellers, including the company seal, charter documents, stock or equity record books and such other similar books and records (including minute books);

(ii)

all rights of the Sellers under this Agreement and the Ancillary Agreements;

(iii)

Tax Documents pertaining to Taxes of the Sellers, subject to Section 5.09(a) ;

(iv)

any Excluded Contract and rights thereunder;

(v)

any assets relating to the Employee Plans except as expressly provided in Article VI ;

(vi)

any insurance policies, letters of credit, and any other assets, in each case related to coverage for workers’ compensation claims that are not Assumed Liabilities; and

(vii)

any right, property or asset that is listed or described in Section 2.01(b)(vii) of the Sellers’ Disclosure Schedule (notwithstanding anything to the contrary in this Agreement).  

In addition to the Purchaser’s rights under Section 5.01(a) , the Purchaser, at its sole and absolute discretion, shall be allowed to amend or supplement Section 2.01(b)(vii) of the Sellers’ Disclosure Schedule at any time prior to June 5, 2009.

Section 2.02

Assumption and Exclusion of Liabilities .

(a)

The Purchaser and the Canadian Purchaser, as applicable, shall assume no liability or obligation of the Sellers except the liabilities and obligations expressly set forth in this Section 2.02(a) (collectively, the “ Assumed Liabilities ”), which the Canadian Purchaser and the Purchaser or its permitted assignee (as contemplated by Section 11.06 ), as the case may be,

 

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shall assume and pay, perform and discharge in accordance with their respective terms, subject to any defenses or claimed offsets asserted in good faith against the obligee to whom such liabilities or obligations are owed:

(i)

all unpaid Liabilities of the Sellers (other than Environmental Liabilities) under the Assigned Contracts for which all necessary Consents (if any) and Bankruptcy Courts’ approvals (if any) have been obtained, it being understood and agreed that any and all Determined Cure Costs in relation to such Assigned Contracts shall be paid as a portion of the Purchase Price in accordance with Section 2.04(d) , and excluding all Liabilities to the extent arising out of any breach or default thereof;

(ii)

all unpaid Liabilities in respect of Permits (other than Environmental Liabilities and other than any that is an Excluded Contract), arising and relating solely to the period from and after the Closing and not to the extent arising out of any breach or default thereof or other activities prior to the Closing;

(iii)

(a) all Conveyance Taxes described in Section 5.10(a) and 5.10(c) below; (b) unpaid Property Taxes of the Sellers between the Petition Date to immediately prior to Closing, but solely to the extent (1) such Property Taxes relate to the Purchased Assets, (2) such Property Taxes constitute Allowed Administrative Claims against the Sellers, (3) the Sellers have continued to pay such Property Taxes in the ordinary course of business prior to Closing, as such Property Taxes have become duly payable (subject to the Seller's right to contest such Taxes in good faith in proper proceedings and for which adequate reserves have been established in accordance with GAAP), and (4) such Property Taxes do not exceed the amount set forth for Property Taxes in Section 2.02(a)(iii) of the Sellers’ Disclosure Schedule in the aggregate; (c) unpaid Taxes for Pre-Closing Periods for which Liens have been imposed on the Purchased Assets, but solely to the extent such Liens would rank senior in priority to any obligations owed under the DIP Facility; (d) unpaid Income Taxes of the Sellers between the Petition Date to immediately prior to Closing (without giving effect to the transactions contemplated hereby), but solely to the extent such Income Taxes (1) relate to the Purchased Assets, (2) constitute Allowed Administrative Claims against the Sellers, and (3) do not exceed the amount set forth for Income Taxes in Section 2.02(a)(iii) of the Sellers’ Disclosure Schedule in the aggregate; and (e) any unpaid trust-fund Taxes that constitute Allowed Administrative Claims accrued since the Petition Date for which any Person that is an officer, employee, director, trustee, or other Person acting in a similar position or capacity for Sellers for which such Persons are personally liable, but solely to the extent that the Sellers are otherwise in compliance with this Agreement;

(iv)

without duplication of any other subsection contained in this Section 2.02(a) , the Assumed Payables;

(v)

the Canadian Trade Payables;

(vi)

any unpaid Liability or obligation of Milacron Canada that ranks senior in priority to the obligations of Milacron Canada under the Senior Secured Notes Indenture, but only to the extent such Liability or obligation has been incurred prior to the

 

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date Milacron Canada has received all required court approvals to perform its obligations under this Agreement;

(vii)

all unpaid Liabilities arising out of the Sellers’ workers’ compensation program that covers workers’ compensation claims arising in the State of Ohio (the “ Ohio Workers’ Compensation Program ”) and the Sellers’ workers’ compensation insurance policies listed in Section 2.02(a)(vii) of the Sellers’ Disclosure Schedule (the “Other Workers’ Compensation Policies”), irrespective of whether claims are made prior to or after the Closing; provided that the assumption of any such Liabilities incurred prior to the Closing shall be contingent upon the following: (A) with respect to claims arising under the Ohio Workers’ Compensation Program, the Purchaser obtaining all necessary approvals, consents and waivers from the Ohio Bureau of Workers’ Compensation (the “ BWC ”) and any other relevant regulatory agency to become the successor to the Ohio Workers’ Compensation Program, including with respect to the transfer to the Purchaser of any letters of credit or other assets related to the Ohio Workers’ Compensation Program and the ability of the Purchaser to obtain the Sellers’ status as a self-insured employer for purposes of the worker’s compensation laws of the State of Ohio, (B) either the assignment and transfer of the Sellers’ excess insurance policy related to the Ohio Workers’ Compensation Program to the Purchaser or the Purchaser obtaining a comparable excess workers’ compensation insurance policy with respect to both the amount of coverage obtained and the price of such coverage, (C) with respect to claims arising under the Other Workers’ Compensation Policies, the Purchaser obtaining all necessary approvals, consents and waivers from any third party to transfer to the Purchaser the benefit of any letters of credit or other assets associated with the Other Workers’ Compensation Policies, and (D) the Purchaser making the independent determination, and giving the Sellers notice of such determination, that the projected Liabilities associated with any claims made prior to the Closing under the Ohio Workers’ Compensation Program are materially less than $1.4 million and the projected Liabilities associated with any claims made prior to the Closing under the Other Workers’ Compensation Policies are materially less than $3.4 million;

(viii)

all unpaid Liabilities for Allowed Claims under Section 503 (b)(9) of the Bankruptcy Code, which Liabilities shall not exceed the amount of such Allowed Claims set forth on the Pre-Closing Budget;

(ix)

all unpaid Liabilities arising in connection with Allowed Claims for “success fees” payable by the Sellers to Sellers’ Restructuring Adviser and Sellers’ Financial Adviser upon consummation of the Transactions in accordance with their respective retention agreements with the Sellers, which Liabilities shall not exceed the amount of such Allowed Claims set forth in the Pre-Closing Budget;

(x)

all Liabilities for Allowed Claims for accrued but unpaid fees and expenses of the Sellers’ professionals and Creditors’ Committee’s professionals (including unbilled and billed but unpaid fees and expenses) for services rendered and expenses incurred through the Closing Date (including the 15% holdback of such fees and expenses), which Liabilities shall not exceed the amount of such Allowed Claims set forth in the Pre-Closing Budget; and

 

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(xi)

all unpaid Liabilities set forth in Section 2.02(a)(xi) of the Sellers’ Disclosure Schedule.

The Purchaser, at its sole and absolute discretion, shall be allowed to amend or supplement Section 2.02(a)(xi) of the Sellers’ Disclosure Schedule at any time prior to June 5, 2009.

In the event that the Sellers do not receive any Qualified Bids (as defined in the Bid Procedures) (other than the Stalking Horse Bid (as defined in the Bid Procedures)) on or before the Initial Bid Deadline (as defined in the Bid Procedures), or the Purchaser becomes the Successful Bidder at the Auction, the Sellers shall permit the Purchaser to lead all negotiations associated with the determination of any Assumed Liabilities that constitute Claims against the Debtors, including the resolution or settlement thereof, and to the extent requested by the Purchaser, the Sellers shall assist the Purchaser in good faith in connection therewith, including Filing or supporting any objections, determination proceedings, objections or reply brief(s) Filed or requested to be Filed by the Purchaser in respect thereof.

(b)

Notwithstanding anything to the contrary in this Agreement, the parties expressly acknowledge and agree that neither the Purchaser nor the Canadian Purchaser shall assume or in any manner whatsoever be liable or responsible for any Liabilities of any of the Sellers, or of any predecessor or Affiliate of any of the Sellers, existing on the Closing Date or arising thereafter as a result of any act, omission or circumstance taking place prior to the Closing, other than the Assumed Liabilities.  The Liabilities not specifically assumed by the Purchaser pursuant to Section 2.02(a) shall be referred to herein collectively as the “ Excluded Liabilities ”.  Without limiting the foregoing, the Purchaser and/or the Canadian Purchaser shall not be obligated to assume, and do not assume, and hereby disclaim all of the Excluded Liabilities, including, without limitation, all of the following Liabilities, of any of the Sellers or their Subsidiaries, or of any predecessor or Affiliate of any of the Sellers:

(i)

all Excluded Taxes, except to the extent contemplated by Section 2.02(a)(iii) ;

(ii)

any Liabilities relating to or arising out of the Excluded Assets;

(iii)

all payables or expenses (accrued or otherwise) of the Sellers or their Subsidiaries other than the Assumed Payables;

(iv)

any Environmental Liabilities;

(v)

the Sellers’ obligations under this Agreement and the Ancillary Agreements and any fees or expenses incurred by any of the Sellers in connection with the negotiation, preparation, approval or execution of this Agreement or the Ancillary Agreements or the sale of the Purchased Assets pursuant hereto, including, without limitation, the fees and expenses of counsel, independent auditors, brokers, bankers, investment bankers and other advisors or consultants and any success (or similar fees) arising in connection therewith;

(vi)

any Liabilities arising as a result of any Action initiated at any time, to the extent related to the Business or the Purchased Assets on or prior to the

 

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Closing Date, including any shareholder Actions, or Actions in tort or for breach of contract and any Liabilities arising in connection with the Actions set forth in Section 2.02(b)(vi) of the Sellers’ Disclosure Schedule;

(vii)

except to the extent specifically provided in Article VI , any and all Liabilities arising out of, relating to or with respect to (i) the employment or performance of services, or termination of employment or services by the Sellers or any of their Affiliates of any individual on or before the Closing Date, (ii) each of the Employee Plans subject to Title IV of ERISA, all other Employee Plans and any other “employee benefit plan” (within the meaning of Section 3(3) of ERISA) or other benefit or compensation plan, program, agreement or arrangement at any time maintained, sponsored, contributed or required to be contributed to by any Seller or any Affiliate of any Seller, or with respect to which any Seller or any Affiliate of any Seller has any Liability or otherwise, including, without limitation, any Liabilities under Section 4006(a)(7) of ERISA, or (iii) except to the extent otherwise specifically provided in Section 2.02(a)(vii) above, workers’ compensation claims against any Seller or any of the Sellers’ Subsidiaries that relate to the period ending on the Closing Date, irrespective of whether such claims are made prior to or after the Closing;

(viii)

any Liability relating to the employment or termination of employment of any Person arising from or related to the operation of the Business prior to Closing (including but not limited to, any severance or stay or incentive bonuses) not expressly assumed by the Purchaser under Article VI ;

(ix)

any Liabilities with respect to the Sellers’ Expenses, other than as contemplated by the Pre-Closing Budget;

(x)

subject to Section 2.02(a) , any Liabilities arising from the ownership and operation of the Business prior to the Closing, including, without limitation, all Liabilities in respect of Indebtedness that relate to the period prior to the Closing;

(xi)

any Liabilities arising from the operation of any successor liability Laws, including, without limitation, “bulk sales” statutes, to the extent that non-compliance therewith or the failure to obtain necessary clearances would subject the Purchaser or the Purchased Assets to the claims of any creditors of any of the Sellers, or would subject any of the Purchased Assets to any Liens or other restrictions (except for Permitted Encumbrances);

(xii)

any Liabilities arising from any violation or violations of an applicable Law or Order prior to the Closing by any of the Sellers;

(xiii)

except as otherwise set forth herein, any Liability with respect to outstanding checks or other instruments issued by the Sellers;

(xiv)

any Liability with respect to Leased Real Property that relates to the period prior to the Closing;

 

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(xv)

any Canadian Court-Ordered Charges; and

(xvi)

all Liabilities set forth in Section 2.02(b)(xvi) of the Sellers’ Disclosure Schedule.

The Purchaser, at its sole and absolute discretion, shall be allowed to amend or supplement Section 2.02(b)(xvi) of the Sellers’ Disclosure Schedule at any time prior to June 5, 2009.

(c)

Nothing contained in this Agreement shall require the Purchaser to pay or discharge any Assumed Liabilities (i) prior to such Assumed Liabilities becoming due and payable in accordance with the underlying terms of any Contracts giving rise to or governing such Assumed Liabilities or (ii) so long as the Purchaser shall in good faith contest the amount or the validity thereof.

Section 2.03

Purchase of Purchased Assets .  On the terms and subject to the conditions of this Agreement, at the Closing, the Purchaser or its designated Affiliate shall (a) purchase the Purchased Assets and assume the Assumed Liabilities from the Sellers, and (b) satisfy its obligation to pay the Purchase Price as set forth in Section 2.04 .

Section 2.04

Purchase Price .  The purchase price (the “ Purchase Price ”) payable in consideration for the sale, transfer, assignment, conveyance and delivery by the Sellers to the Purchaser or its designated Affiliate of the Purchased Assets shall consist of the following:

(a)

the assumption at the Closing by the Purchaser or one or more of its designated Affiliates of the Accrued Liabilities and payment of all amounts thereof, as and when such payments come due;

(b)

either (i) the payment in full in immediately available funds at the Closing of all outstanding obligations owed by the Sellers under the DIP ABL Facility or (ii) the assumption at the Closing by the Purchaser of all outstanding obligations owed by the Sellers under the DIP ABL Facility, together with (in the cases of clauses (i) and (ii)) evidence reasonably satisfactory to the Sellers of such payment or assumption by the Purchaser; plus

(c)

the satisfaction and extinguishment of all outstanding obligations owed by the Sellers under the DIP Term Loan Facility, together with evidence reasonably satisfactory to the Sellers of the satisfaction and extinguishment of all obligations of the Sellers under the DIP Term Loan Facility (including all Liens, security interests, Claims and payment obligations thereunder, including obligations for the payment of lenders’ professionals’ fees); plus

(d)

the payment of Determined Cure Costs in accordance with Section 5.01(c) ; plus

(e)

agreement to fund the Post-Closing Budget, and payment of all amounts thereunder as and when such payments come due; plus

(f)

the Purchase Agreement Bid Amount; plus

 

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(g)

cancellation of any additional Senior Secured Notes as a result of any Credit Bid in accordance with the Bid Procedures Orders; plus

(h)

payment of the Additional Consideration directly to the Indenture Trustee for the benefit of the holders of Senior Secured Notes other than the Sponsors.

Section 2.05

Allocation of the Purchase Price.  

(a)

Determination of Canadian Purchase Price .  The Purchaser shall determine the Canadian Purchase Price by allocating the Purchase Price (and any other relevant consideration, as may be determined under the Tax Code  or the Income Tax Act (Canada)) that is attributable to the Canadian Assets, as determined by comparing the relative fair market value of the Canadian Assets to the relative fair market value of the Purchased Assets on the Closing Date, which allocation initially will be set out in a schedule prepared by the Purchaser and delivered to Milacron Canada no later than the 20th day of the month following the month which includes the Closing Date.

(b)

Allocation of Purchase Price for United States federal Income Tax Purposes .  For United States federal, state and local Income Tax purposes, if required by Tax law, the difference  between (x) the Purchase Price (and any other relevant consideration, as may be determined under the Tax Code) and (y) the Canadian Purchase Price,  shall be allocated among the Purchased Assets (other than the Canadian Assets) as of the Closing Date in accordance with the relative fair market value of the Purchased Assets at that time, to the extent relevant, and in a manner consistent with Section 1060 of the Tax Code and the Regulations thereunder (the “ Allocation ”), which allocation initially will be set out in a schedule prepared by the Purchaser and delivered to Milacron within ninety (90) days after the Closing Date.

(c)

Allocation of Purchase Price for Canadian Tax Purposes .  The Canadian Purchase Price shall be allocated among the Canadian Assets (by asset type and by province) as of the Closing Date in accordance with the relative fair market value of the Canadian Assets at that time.  The allocation of the Canadian Purchase Price (the “ Canadian Allocation ”) shall initially be set out in a schedule prepared by the Canadian Purchaser and delivered to Milacron Canada no later than the 20th day of the month following the month which includes the Closing Date.

(d)

After the Allocation and/or the Canadian Allocation have been delivered to Milacron and the Canadian Purchaser, respectively, the Purchaser, the Canadian Purchaser and the Sellers (including Milacron Canada) shall negotiate in good faith to agree upon a final Allocation and Canadian Allocation, and if the parties are unable to agree upon a final Allocation and Canadian Allocation after a period of thirty (30) days, any disputed items shall be resolved by an internationally recognized, independent accounting firm to be mutually agreed upon by the Purchaser and the Sellers (the determination of such accounting firm to be final and conclusive as to the Purchaser and the Sellers).  The fees of such accounting firm shall be paid by the Purchaser.  Subject to the foregoing provisions of this Section 2.05 , for United States and Canadian federal, state, provincial, territorial and local Income Tax purposes, the Purchaser and the Sellers agree that the Transactions shall be reported in a manner consistent with the terms of this Agreement, including the Allocation and the Canadian Allocation, and that none of them

 

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will take any position inconsistent therewith in any Tax Return, in any refund claim, in any litigation, or otherwise.  Additionally, the Purchaser and the Sellers agree that any subsequent adjustments to the Purchase Price or the Canadian Purchase Price hereunder shall be reflected in the Allocation and the Canadian Allocation in accordance with any applicable Tax requirements.  If the Allocation or Canadian Allocation is disputed by any Governmental Authority or other taxing authority, the party receiving notice of such dispute will promptly notify the other parties, and the parties will use their reasonable best efforts to sustain the Allocation.  The parties will share information and cooperate in good faith to permit the Transactions to be properly, timely and consistently reported (including in the preparation of IRS Form 8594 and any subsequent adjustments required thereto) and to provide each other with a copy of any forms required to be submitted to any Governmental Authority within a reasonable period (and in no event less than thirty (30) days) before the filing due date for such form.

Section 2.06

Determined Cure Costs .  The Purchaser agrees to promptly satisfy all Determined Cure Costs, as and when such Determined Cure Costs become due, in respect of Assigned Contracts for which all necessary consents (if any) and necessary Bankruptcy Courts’ approvals (if any) have been obtained; provided , however , that, notwithstanding anything to the contrary herein (including any limitation on the time period for identifying Contracts that will constitute Excluded Contracts pursuant to Section 5.01(a) ), if the Determined Cure Costs with respect to any Assigned Contract exceed the amount reflected in Section 3.13(c) of the Sellers’ Disclosure Schedule, the Purchaser, in its sole discretion, shall be permitted to elect to treat such Assigned Contract as an Excluded Contract.

Section 2.07

Closing .  Subject to the terms and conditions of this Agreement, the consummation of the Transactions shall take place at a closing (the “ Closing ”) to be held at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York at 10:00 a.m. New York time, or, in relation to the European Shares, at a location to be determined by the Purchaser in Amsterdam, the Netherlands, on the third Business Day following the satisfaction or waiver of the conditions to the obligations of the parties hereto set forth in Section 8.01 and Section 8.02 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), or at such other place or at such other time or on such other date as the Sellers and the Purchaser may mutually agree upon in writing.  The date of the Closing is herein referred to as the “ Closing Date .”

Section 2.08

Closing Deliveries by the Sellers .  At the Closing, the Sellers shall deliver or cause to be delivered to the Purchaser:

(a)

certified copies of the Sale Orders, as issued and entered by the Bankruptcy Courts;

(b)

the Bill of Sale and Assignment and Assumption Agreement, the Deeds applicable in the relevant jurisdictions for the Owned Real Property (with the Deeds for the Owned Real Property to be recorded with copies of all required Conveyance Tax stamps affixed, except for any Conveyance Taxes that are exempt pursuant to Section 1146(a) of the Bankruptcy Code), the Assignments of Leased Properties in recordation form, the Assignments of Intellectual Property and such other instruments, in form and substance satisfactory to the Purchaser and in registrable or recordation form (or such other instruments or agreements

 

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required for the assignment and/or recordation of assignment of Leased Properties in any foreign jurisdiction) where applicable as may be reasonably requested by the Purchaser to effect the transfer of the Purchased Assets to the Purchaser or its designated Affiliate(s), or to register or record or evidence such transfer on the public records (including in the United States Patent and Trademark Office, United States Copyright Office, and similar Governmental Authorities (including Internet domain name registrars) in any and all applicable jurisdictions), in each case duly executed by each applicable Seller and the other parties thereto (other than the Purchaser);

(c)

the Ancillary Agreements, duly executed by each applicable Seller and the other parties thereto (other than the Purchaser) other than the Ancillary Agreements delivered pursuant to Section 2.08(b) ;

(d)

a certificate of non-foreign status pursuant to Section 1.1445-2(b)(2) of the Regulations from each Seller (other than Milacron Canada and MCH B.V.), and in the case of Milacron Canada and MCH B.V., a certificate by the Secretary or a Director of Milacron Canada and MCH B.V., respectively confirming that such Sellers are not conveying any interests in United States real property, within the meaning of Section 897 of the Tax Code, in each case, in form and substance reasonably satisfactory to the Purchaser;

(e)

copies of the resolutions of the board of directors (or equivalent governing body) and the shareholders meeting (if applicable) of each Seller authorizing and approving the execution and delivery of this Agreement and the Ancillary Agreements and the performance by such Seller of its obligations hereunder and thereunder, certified by the Secretary of such Seller;

(f)

copies of the certificate of incorporation and bylaws (or equivalent governance documents) of each Seller, in each case accompanied by a certificate of the Secretary of such Seller, dated as of the Closing Date, stating that no amendments have been made to such governance documents;

(g)

subject to the Purchaser’s obligations under Section 2.04 , termination statements, lien releases, discharges, financing change statements or other documents, notices or other instruments as the Purchaser may reasonably deem necessary to release Liens on the Purchased Assets, each in form and substance reasonably satisfactory to the Purchaser duly executed by any holders of such Liens;

(h)

written consents in form and substance reasonably satisfactory to the Purchaser duly executed by the applicable Sellers and counterparties evidencing any consents necessary to effect the assignment to the Purchaser of the Owned Intellectual Property pursuant to Section 2.01(a)(ix) ;

(i)

a certificate of a duly authorized officer of each of the Sellers certifying that the conditions set forth in Section 8.02(a) have been satisfied (or to the extent any such condition has been waived in accordance with the terms hereof, attaching thereto the applicable written waiver);

(j)

stock certificates (or equivalent certificates in non-U.S. jurisdictions, as applicable) evidencing the Transferred Shares duly endorsed in blank, or accompanied by stock powers duly executed in blank, or, in the case of the European Subsidiaries, a (certified) copy of

 

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the deed(s) of transfer executed by a civil Law notary in Amsterdam, the Netherlands evidencing the transfer of the European Shares, in each case, in form and substance reasonably satisfactory to the Purchaser and, where applicable, with all required stock transfer tax stamps affixed and accompanied by a legal opinion of counsel to the Sellers, in form and substance reasonably satisfactory to the Purchaser;

(k)

a duly executed release of the Sellers as contemplated by the Section 21(b) of the Restructuring Support Agreement (the “ Sellers’ Release ”), in form and substance to be agreed by the parties hereto before the Closing;

(l)

a certificate from each Seller (other than Milacron Canada) confirming that such Sellers are not conveying taxable Canadian property, as defined in the Income Tax Act (Canada), in each case, in form and substance reasonably satisfactory to the Purchaser;

(m)

the License Agreement, duly executed pursuant to Section 5.22 ; and

(n)

such other customary documents and instruments of transfer, assignment, assumptions and filings as may be reasonably required to be delivered by any Seller to consummate the Transactions or otherwise give effect to this Agreement (including declarations of possession in respect of Owned Real Property or declarations of or certificates in respect of Owned Real Property required for Purchaser to obtain title insurance to its satisfaction and any customary documentation required to assign the Permits).

Section 2.09

Closing Deliveries by the Purchaser .  At the Closing, the Purchaser shall deliver, or cause to be delivered,

(a)

to the Sellers:

(i)

the Bill of Sale and Assignment and Assumption Agreement, the Assignments of Leased Properties and the Assignments of Intellectual Property, in each case in form and substance reasonably satisfactory to Milacron, to effect the assumption by the Purchaser or its designated Affiliate of the Assumed Liabilities, duly executed by the Purchaser (where required);

(ii)

the Ancillary Agreements to which the Purchaser is a party, duly executed by the Purchaser other than the Ancillary Agreements delivered pursuant to Section 2.09(a)(i) ;

(iii)

a certificate of a duly authorized officer of the Purchaser certifying that the conditions set forth in Section 8.01(a) have been satisfied (or to the extent any such condition has been waived in accordance with the terms hereof, attaching thereto the applicable written waiver);

(iv)

a copy of the written consent of the sole member of the Purchaser authorizing and approving the execution and delivery of this Agreement and the Ancillary Agreements to which it is a party and the performance by the Purchaser of its obligations hereunder and thereunder, certified by an authorized signatory of the sole member of the Purchaser;

 

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(v)

such other customary documents and instruments of transfer, assumptions and filings as may be reasonably required to be delivered by the Purchaser to consummate the Transactions or otherwise give effect to this Agreement; and

(vi)

a duly executed release of the RSA Sponsors as contemplated by Section 21(a) of the Restructuring Support Agreement (the “ Sponsors’ Release ”), in form and substance to be agreed by the parties hereto before the Closing.

(b)

the Purchase Price (to the extent due and payable at the Closing) in accordance with Section 2.04 .

Section 2.10

Relinquishment of Control .  Subject to Section 2.11(c), at the Closing, the Sellers, on behalf of themselves and their respective estates, shall turn over actual possession and control of all of the Purchased Assets to the Purchaser or one or more of its designated Affiliates by taking such action that may be required or reasonably requested by the Purchaser or its designated Affiliates to effect such transfer of possession and control.

Section 2.11

Assignment of Contracts and Rights .  (a)  To the extent that any Assigned Contract to be sold, transferred, conveyed or assigned (any such sale, transfer, conveyance or assignment, a “ Transfer ”) to the Purchaser or its designated Affiliate purs