Exhibit 10.7
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
ALLTRISTA PLASTICS CORPORATION,
TRIENDA CORPORATION,
QUOIN CORPORATION,
ALLTRISTA CORPORATION
AND
WILBERT, INC.
OCTOBER 15, 2001
TABLE OF CONTENTS
-----------------
ARTICLE I DEFINITIONS ............................................................ 1
Section 1.1 Defined Terms ...................................................... 1
Section 1.2 Index of Other Defined Terms ....................................... 5
ARTICLE II TRANSFER OF ASSETS ..................................................... 6
Section 2.1 Purchase and Sale of Assets ........................................ 6
Section 2.2 Excluded Assets .................................................... 8
Section 2.3 Instruments of Transfer and Assignment ............................. 8
Section 2.4 Consents to Assignment ............................................. 8
Section 2.5 Subsequent Documentation ........................................... 8
Section 2.6 Closing ............................................................ 8
ARTICLE III PURCHASE PRICE ......................................................... 8
Section 3.1 Consideration, Payment ............................................. 8
Section 3.2 Allocation of Consideration ........................................ 9
Section 3.3 Deposit ............................................................ 9
ARTICLE IV ASSUMPTION OF LIABILITIES .............................................. 9
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLERS, HOLDINGS AND ALLTRISTA ...... 10
Section 5.1 Disclosure Schedule ................................................ 10
Section 5.2 Organization; Power ................................................ 10
Section 5.3 Articles of Incorporation and Bylaws ............................... 10
Section 5.4 Authorization of Agreement ......................................... 10
Section 5.5 No Conflicts ....................................................... 11
Section 5.6 Consents and Approvals ............................................. 11
Section 5.7 Financial Information .............................................. 11
Section 5.8 No Undisclosed Liabilities or Claims ............................... 11
Section 5.9 Litigation ......................................................... 12
Section 5.10 Taxes .............................................................. 12
Section 5.11 Accounts Receivable and Accounts Payable ........................... 13
Section 5.12 Inventory .......................................................... 13
Section 5.13 Absence of Certain Changes or Events ............................... 13
Section 5.14 Contracts and Commitments .......................................... 14
Section 5.15 Tooling and Dies ................................................... 15
Section 5.16 Assumed Liabilities ................................................ 15
Section 5.17 OSHA, Environmental ................................................ 15
Section 5.18 Customers and Vendors .............................................. 16
Section 5.19 Books and Records .................................................. 16
Section 5.20 Employment Matters ................................................. 16
Section 5.21 Employee Benefit Plans ............................................. 17
Section 5.22 Employees .......................................................... 18
i
Section 5.23 Finder ............................................................. 19
Section 5.24 Sufficiency of Assets .............................................. 19
Section 5.25 Governmental Authorizations ........................................ 19
Section 5.26 Compliance with Applicable Laws .................................... 19
Section 5.27 Title to Assets, Absence of Liens and Encumbrances ................. 20
Section 5.28 Intellectual Property .............................................. 20
Section 5.29 Real Property ...................................................... 21
Section 5.30 Working Capital .................................................... 22
Section 5.31 Hardware and Software .............................................. 22
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER ................................ 22
Section 6.1 Organization ....................................................... 22
Section 6.2 Authorization of Agreement ......................................... 22
Section 6.3 Approvals .......................................................... 22
Section 6.4 Finder ............................................................. 23
Section 6.5 No Conflicts ....................................................... 23
ARTICLE VII COVENANTS OF THE PARTIES ............................................... 23
Section 7.1 Operation Of Business Prior To Closing ............................. 23
Section 7.2 Approvals and Consents ............................................. 24
Section 7.3 Payment of Liabilities, Bulk Sales ................................. 24
Section 7.4 Access Prior to Closing; Environmental Investigation ............... 24
Section 7.5 Sellers' Employees, Retirement Benefits ............................ 25
Section 7.6 Access After the Closing ........................................... 26
Section 7.7 Taxes .............................................................. 26
Section 7.8 Survey and Title Commitments ....................................... 27
Section 7.9 Title to Intellectual Property ..................................... 28
Section 7.10 No Solicitation .................................................... 29
Section 7.11 Confidentiality .................................................... 29
Section 7.12 Covenant Not to Compete ............................................ 30
Section 7.13 Notification ....................................................... 31
Section 7.14 Intellectual Property Undertakings ................................. 32
ARTICLE VIII CONDITIONS TO CLOSING .................................................. 32
Section 8.1 Buyer's Conditions to Closing ...................................... 32
Section 8.2 Sellers', Holdings' and Alltrista's Conditions to Closing .......... 33
ARTICLE IX DISPUTE RESOLUTION ..................................................... 34
Section 9.1 Initial Meeting .................................................... 34
Section 9.2 Mediation .......................................................... 35
Section 9.3 Binding Arbitration ................................................ 35
Section 9.4 Expeditious Proceedings ............................................ 35
Section 9.5 Attorneys' Fees .................................................... 35
Section 9.6 Enforcement of Awards .............................................. 35
Section 9.7 Equitable Relief ................................................... 35
ARTICLE X INDEMNIFICATION ............................................................ 36
ii
Section 10.1 Indemnification by Sellers, Holdings and Alltrista ..................... 36
Section 10.2 Indemnification by Buyer ............................................... 37
Section 10.3 Limits ................................................................. 37
Section 10.4 Procedure .............................................................. 38
Section 10.5 Insurance and Taxes .................................................... 38
Section 10.6 Exclusive Remedy ....................................................... 38
Section 10.7 Indemnification in Case of Strict Liability or Indemnitee Negligence.... 39
ARTICLE XI TERMINATION ................................................................ 39
Section 11.1 Termination ............................................................ 39
Section 11.2 Effect of Termination .................................................. 40
Section 11.3 Risk of Loss ........................................................... 40
ARTICLE XII GENERAL .................................................................... 40
Section 12.1 WARN Act ............................................................... 40
Section 12.2 Expenses ............................................................... 40
Section 12.3 Survival of Representations and Warranties ............................. 40
Section 12.4 Waivers ................................................................ 41
Section 12.5 Binding Effect; Benefits; Assignment ................................... 41
Section 12.6 Notices ................................................................ 41
Section 12.7 Entire Agreement ....................................................... 42
Section 12.8 Headings ............................................................... 42
Section 12.9 Governing Law .......................................................... 42
Section 12.10 Amendments ............................................................. 42
Section 12.11 Severability ........................................................... 42
Section 12.12 Press Releases ......................................................... 42
Section 12.13 Counterparts ........................................................... 43
Section 12.14 Interpretation ......................................................... 43
iii
SCHEDULES
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Schedule 1.1(a) - Working Capital
Schedule 1.1(b) - Permitted Encumbrances
Schedule 1.1(c) - Permitted Liens
Schedule 1.1(d) - Real Property
Schedule 2.1 - Assets
Schedule 2.1(d) - Excluded Equipment and Machinery
Schedule 2.1(1) - Intellectual Property
Schedule 2.2 - Excluded Assets
Schedule 4 - Assumed Liabilities
Schedule 5.1 - Disclosure Schedule
Section 5.5 - Conflicts
Section 5.6 - Consents and Approvals
Section 5.7 - Financial Information
Section 5.8 - Liabilities or Obligations
Section 5.9 - Litigation
Section 5.10 - Taxes
Section 5.11 - Accounts Receivable and Accounts Payable
Section 5.13 - Absence of Certain Changes or Events
Section 5.14 - Contracts
Section 5.15 - Owned Tools and Dies
Section 5.17 - OSHA, Environmental
Section 5.18 - Customers and Vendors
Section 5.20 - Employment Matters
Section 5.21 - Employee Benefit Plans
Section 5.22 - Employees
Section 5.24 - Sufficiency of Assets
Section 5.25 - Governmental Authorizations
Section 5.26 - Compliance with Applicable Laws
Section 5.28 - Intellectual Property Agreements
Section 5.29 - Real Property
Schedule 7.12 - List of Parts
Schedule 8.1(l) - Customers Meeting with Buyer
EXHIBITS
--------
3.1(a) - Form of Promissory Note
3.1(b) - Form of Assumption Agreement
5.7(a) - Financial Information
5.22(b) - Form of Proprietary Agreements
7.14 - Intellectual Property Undertakings
8.1(j) - Form of Seller Opinion Letter
8.2(g) - Form of Buyer Opinion Letter
iv
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of October 15,
---------
2001, is entered into by and among ALLTRISTA PLASTICS CORPORATION, an Indiana
corporation, TRIENDA CORPORATION, an Indiana corporation (together with
Alltrista Plastics Corporation "Sellers" and individually "Seller"), QUOIN
------- ------
CORPORATION, a Delaware corporation ("Holdings"), ALLTRISTA CORPORATION, an
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Indiana corporation ("Alltrista") and WILBERT, INC., an Illinois corporation
---------
(the "Buyer").
-----
RECITALS:
WHEREAS, utilizing thermoforming and sheet extrusion processes, Sellers are
engaged in the business of manufacturing heavy gauge plastic products and parts
for original equipment manufacturers in a variety of industries, including heavy
transportation, agriculture, portable restrooms, appliance, furniture and
material handling at the locations set forth on Schedule 1.1(d) (as further
---------------
defined below, the "Business");
--------
WHEREAS, Buyer is acquiring certain assets and assuming certain
liabilities, the Buyer and Sellers, Holdings and Alltrista intend and agree that
no tax attributes will be transferred to the Buyer under Internal Revenue Code
Section 381 or any other comparable provision under federal, state or local law.
Sellers, Holdings and Alltrista are retaining all tax attributes including, but
not limited to, net operating loss carryovers, Section 1231 carryovers, capital
loss carryovers, credits carryovers and tax payment deposits;
WHEREAS, Sellers, Holdings and Alltrista desire to sell to Buyer the assets
used in the Business pursuant to the terms and conditions of this Agreement;
WHEREAS, Alltrista owns certain rights to intellectual property used in the
Business and desires to sell to Buyer such rights pursuant to the terms and
conditions of this Agreement;
WHEREAS, Holdings, as the sole shareholder of Sellers, has approved the
sale of substantially all of the assets of Sellers to Buyer; and
WHEREAS, Buyer desires to purchase from Sellers, Holdings and Alltrista
such assets and properties used in the Business pursuant to the terms and
conditions of this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used herein, the following terms have the
-------------
following meanings:
"Accounts Receivable" means accounts receivable of the Business in
existence on the Closing Date other than those accounts receivable related to
Sellers' business located at Ft. Smith, Arkansas.
"Business" means the business defined in the first recital of this
Agreement but specifically excluding any of the Assets or operations of Sellers
located in Ft. Smith, Arkansas except to the extent such Assets are also used
outside of Ft. Smith, Arkansas.
"CERCLA" means the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, at 42 U.S.C. Sections 9601, et seq.
"Closing Approvals" means those approvals and consents to be obtained prior
to Closing, all of which are designated on Section 5.6 of the Disclosure
-----------
Schedule as exceptions to the representations and warranties of Sellers,
Holdings and Alltrista in Section 5.6 hereof.
-----------
"Closing Working Capital" means an amount equal to Working Capital
calculated by Buyer as of the Closing Date in accordance with the procedures set
forth on Schedule 1.1(a).
---------------
"Confidential Information" means non-public information that is proprietary
to, about or concerning the Business and/or the Assets, including information
relating to customer lists, account lists, price lists, product designs,
marketing plans or proposals, customer information, accounting, financing,
merchandising, know how, trademarks, trade names, trade practices and trade
secrets.
"Effective Time" means 11:59 P.M., Central Standard Time, on the Closing
Date.
"Environmental Laws" means any applicable laws (including duties imposed by
common law), rules, regulations, orders, ordinances, judgments and decrees of
all governmental authorities relating to the environment, including but not
limited to CERCLA, the Emergency Planning and Community Right-to-Know Act of
1986, as amended (42 U.S.C.(S) 11001 et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.),
the Federal Water Pollution Control Act, as amended (33 U.S.C. Sections 1251, et
seq.), the Clean Air Act, as amended (42 U.S.C. Sections 7401, et seq.), the
Toxic Substances Control Act, as amended (15 U.S.C. Sections 2601, et seq.), the
Clean Water Act, as amended (33 U.S.C. Sections 1251, et seq.), OSHA and similar
state and local laws and any regulations issued in connection with the
foregoing.
"Excluded Assets" means any assets listed on Schedule 2.2, including,
------------
without limitation, any assets or operations of Sellers located in Ft. Smith,
Arkansas or any of Sellers' business directly related thereto except to the
extent such assets located in Ft. Smith, Arkansas are also used in the Business.
"Excluded Records" means any tax analysis and work papers and core
corporate records.
"Force Majeure" means that a party is delayed or prevented from fulfilling
the terms of this Agreement by wars, acts of bio-terrorism, national emergency,
floods, fires or acts of God.
2
"Hazardous Substances" means any substance designated as a hazardous
substance, hazardous material or hazardous waste by any Environmental Law,
including, but not necessarily limited to, solvents, pollutants, chemicals,
flammables, contaminants, gasoline, petroleum products, crude oil, explosives,
radioactive materials, hazardous materials or toxic materials, substances, or
wastes, or polychlorinated biphenyls.
"Initial Working Capital" means an amount equal to Working Capital
calculated as of September 30, 2001 as set forth on Schedule 1.1(a).
--------------
"Intellectual Property" means the intellectual property rights related
to the Business, including: trademarks, service marks, brand names,
certification marks, trade dress, assumed names, trade names and other
indications of origin (both registered and unregistered), the goodwill
associated with the foregoing and registrations in any jurisdiction of, and
applications in any jurisdiction to register, the foregoing, including any
extension, modification or renewal of any such registration or application;
inventions, discoveries and ideas, whether patentable or not in any
jurisdiction; patents, applications for patents (including, without limitation,
divisions, continuations, continuations in-part and renewal applications), and
any renewals, extensions or reissues thereof, in any jurisdiction; non-public
information, trade secrets and confidential information and rights in any
jurisdiction to limit the use or disclosure thereof by any Person; writings and
other works, whether copyrightable or not in any jurisdiction; registrations or
applications for registration of copyrights in any jurisdiction, and any
renewals or extensions thereof; any similar intellectual property or proprietary
rights, manufacturing know-how and technology, proprietary processes,
methodology and methods of operation, floor designs, laboratory notes and books,
discrete disclosures, technical data, product information, distribution methods,
supplier and customer lists, manufacturing techniques and laboratory results,
computer programs, catalyst and catalytic know-how and technology, distribution
know-how and methods; and any claims or causes of action available for the
benefit of Sellers, Holdings or Alltrista arising out of or related to any
infringement or misappropriation of any of the foregoing.
"Inventory" means all inventory, work in progress, raw materials,
finished products, supplies, packaging and shipping containers and materials of
Sellers (on-site, off-site and consigned).
(a) "Knowledge" means the actual knowledge of Martin E. Franklin, Ian
Ashken, Angela K. Knowlton, Kyle DeJaeger, Jim Mastrangelo or Bob Shimmel,
agents of Sellers, Holdings and Alltrista.
"OSHA" means the Occupational Safety and Health Act, 29 U.S.C.ss.651 et
seq., as amended.
"Permitted Encumbrances" means any encumbrance set forth on Schedule
--------
1.1(b) that is not disapproved pursuant to Section 7.8(c).
- ------ --------------
"Permitted Liens" means the liens set forth on Schedule 1.1(c), liens
---------------
for taxes or governmental assessments, charges or claims the payment of which is
not yet due, statutory liens of landlords and liens of carriers, warehousemen,
mechanics, materialmen and other similar persons and other liens imposed by
applicable law incurred in the ordinary course of business for
3
sums not yet delinquent or immaterial in amount and being contested in good
faith, and liens constituting or securing executory obligations under any lease
assumed by Buyer. Permitted Liens shall also include Permitted Encumbrances.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust, or
unincorporated association, or any governmental agency, department, commission,
board, bureau or instrumentality thereof.
"Post-Closing Tax Period" means any tax period (or portion thereof)
ending after the Closing Date.
"Pre-Closing Tax Period" means any tax period (or portion thereof)
ending on or before the close of business on the Closing Date.
"Real Property" means the real property owned or leased by Sellers,
Holdings and/or Alltrista and related to the Business which is located at the
addresses set forth on Schedule 1.1(d) hereto.
---------------
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaking, dumping, or disposing into
the environment any Hazardous Substance.
"Shared Savings Obligations" means all payments remaining to be made by
Sellers, Holdings or Alltrista at the Closing Date under (a) four (4) certain
energy services agreements with Wisconsin Power and Light Company dated November
13, 1996, November 13, 1996, December 10, 1997 and December 20, 1997 and (b) a
performance contract with Alliant Energy-Interstate Power dated December 21,
1999 unless any such payments or obligations are accrued on the September 30
Balance Sheet.
"Taxes" means all federal, state, local, or foreign taxes (including
excise taxes, occupancy taxes, employment taxes, unemployment taxes, ad valorem
taxes, custom duties, transfer taxes, and fees), levies, imposts, fees,
impositions, assessments, or other governmental charges of any nature imposed
upon a Person including all taxes or governmental charges imposed upon any of
the personal properties, real properties, tangible or intangible assets, income,
receipts, payrolls, transactions, stock transfers, capital stock, net worth or
franchises of a Person (including all sales, use, withholding or other taxes
which a Person is required to collect and/or pay over to any government), and
all related additions to tax, penalties or interest thereon.
"Tax Returns" means any return, report, information return, or other
document (including any related or supporting information) filed or required to
be filed with any governmental agency, department, commission, board, bureau, or
instrumentality in connection with the determination, assessment, collection, or
administration of any Taxes.
"Working Capital" means the current assets, as defined by GAAP, that
are among the Assets of the Business, less the current liabilities, as defined
by GAAP, that are among the Assumed Liabilities, calculated in accordance with
GAAP, consistent with past practice and in the ordinary course of business,
which is the same basis for calculation of the Initial Working Capital set forth
on Schedule 1.1(a).
---------------
4
Section 1.2 Index of Other Defined Terms. In addition to terms defined
----------------------------
above, the following terms shall have the respective meanings given to them in
the Sections set forth below:
Defined Term Section
------------ -------
Alltrista Preamble
Agreement Preamble
Assets 2.1
Assumed Liabilities 4
Basket 10.3(a)
Benefit Plans 5.21(b)
Bulk Sales Law 7.3
Business Recitals, 1.1
Business Employees 5.20(a)
Buyer Preamble
Claims 10.1
Closing 2.6
Closing Date 2.6
COBRA 5.21(d)
Contracts 5.14
Code 3.2
Customers 5.18
Disapproved Matters 7.8(c)
Disclose or Disclosure 7.11(a)
Disclosure Schedule 5.1
DOL 5.22(e)
Drop Dead Date 11.1(e)
ERISA 5.21(a)
Excluded Assets 2.2
Exception Documents 7.8(b)
Financial Information 5.7
Ft. Smith Employees 7.5(a)
GAAP 5.7
Holdings Preamble
Indemnifying Party 10.4(a)
Indemnified Party 10.4(a)
INS 5.22(e)
Leave Employees 7.5(a)
Monetary Liens 7.8(b)
Notice of Dispute 9.1
Plan 5.21(a)
Promissory Note 3.1
Proprietary Agreements 5.22(b)
Purchase Price 3.1
Retained Contracts 2.1(c)
Section 10.1 Indemnified Parties 10.1
Section 10.2 Indemnified Parties 10.2
5
Sellers Preamble
September 30 Balance Sheet 2.1(o)
Survey(s) 7.8(a)
Title Commitment(s) 7.8(b)
Title Company 7.8(a)
Title Policy(ies) 7.8(b)
Transferred Employees 7.5(a)
Vendors 5.18
WARN 12.1
ARTICLE II
TRANSFER OF ASSETS
Section 2.1 Purchase and Sale of Assets. At the Closing, but effective
---------------------------
as of the Effective Time, on the terms and conditions set forth herein, Sellers,
Holdings and Alltrista shall sell, convey, assign, transfer and deliver to Buyer
and Buyer shall purchase from Sellers, Holdings and Alltrista all of the Assets
of the Business (other than the Excluded Assets and Excluded Records) free and
clear of all liens, encumbrances, security interests, options and pledges of any
kind whatsoever, except for Permitted Liens and Permitted Encumbrances. The
assets, properties and rights to be sold by Sellers, Holdings and Alltrista and
purchased by Buyer under this Agreement, include, without limitation and
wherever located, the following:
(a) all Inventory related to the Business;
(b) all Accounts Receivable, rights under open orders for the purchase
and sale of assets, customer orders, prepayments of every kind, security
deposits and other deposits of every kind, and all insurance proceeds relating
to the Business;
(c) all rights of Sellers, Holdings and Alltrista pursuant to Contracts
set forth in Section 5.14 of the Disclosure Schedule, other than the rights of
------------
Sellers, Holdings and Alltrista pursuant to those Contracts denoted as not being
assigned or transferred to Buyer on Section 5.14 of the Disclosure Schedule (the
------------
"Retained Contracts");
------------------
(d) all equipment and machinery (including, but not limited to, all
tooling and dies) used in the Business, except as set forth on Schedule 2.1(d);
---------------
(e) all other tangible personal property used in the Business,
including motor vehicles and office and other supplies;
(f) all owned Real Property, including all buildings, improvements, and
fixtures located thereon;
(g) all rights of Sellers, Holdings and Alltrista pursuant to all
permits, licenses, and other authorizations relating to the Business and all
pending applications therefor or renewals thereof, in each to the extent
transferable to Buyer, the first Twenty Thousand Dollars ($20,000) of which
shall be paid by Buyer;
6
(h) all computers, hardware, firmware, data transmission equipment,
software and software licenses, and related manuals used in connection with the
Business;
(i) all rights under warranties, express or implied, or other claims for
damages or loss related to any of the Assets;
(j) all claims of Sellers, Holdings and Alltrista against third parties
relating to the Assets, whether choate or inchoate, known or unknown, contingent
or noncontingent;
(k) all data, books, records and files of Sellers, Holdings and Alltrista
(including, without limitation, all computerized records and other computerized
storage media and user manuals and documentation relating thereto) relating to
the Assets or the Business, including, without limitation, customer lists and
records, referral sources, research and development reports and records,
production reports and records, service and warranty records, equipment logs,
operating guides and manuals, financial and accounting records, creative
materials, advertising materials, promotional materials, studies, reports,
correspondence and other similar documents and records and, subject to
applicable law, copies of all personnel records and other records (subject to
Sellers', Holdings' or Alltrista's right to retain copies thereof);
(l) all of the intangible rights and property of Sellers, Holdings and
Alltrista, including, without limitation, going concern value, goodwill,
telephone, telecopy and e-mail addresses and listings used in the Business and
all of the Intellectual Property used in the Business, free and clear of all
licenses, liens, encumbrances, security interests, options, pledges of any kind
whatsoever;
(m) all insurance benefits, including rights and proceeds, arising from or
relating to the Assets or the Assumed Liabilities prior to the Effective Time,
except with respect to insurance for medical or workers' compensation claims the
payment of which is the responsibility of Alltrista or Sellers;
(n) all rights of Sellers, Holdings and Alltrista relating to deposits and
prepaid expenses, claims for refunds and rights to offset in respect thereof,
related to the Business;
(o) all other assets reflected on the Balance Sheet of the Thermoformed
Products Division of Alltrista (excluding assets related to the Ft. Smith,
Arkansas operations) dated as of September 30, 2001 (the "September 30 Balance
--------------------
Sheet") other than cash and cash equivalents except for petty cash;
- -----
(p) all of Sellers', Holdings' and Alltrista's other rights and property
interests of any nature which are customarily and exclusively used in the
Business; all such assets being referred to herein collectively as the "Assets".
------
By way of further description, the Assets shall include, but not be limited to,
those items set forth in Schedule 2.1.
------------
Notwithstanding the foregoing, the transfer of the Assets pursuant to this
Agreement shall not include the assumption of any liability or obligation
related to the Assets or the Business unless Buyer expressly assumes that
liability or obligation pursuant to Article IV or in other express provisions of
----------
this Agreement.
7
Section 2.2 Excluded Assets. The Assets shall not include the items set
---------------
forth on Schedule 2.2 attached hereto (the "Excluded Assets").
------------ ---------------
Section 2.3 Instruments of Transfer and Assignment. On the Closing Date
--------------------------------------
Alltrista, Holdings and Sellers shall deliver or cause to be delivered to Buyer
duly executed bills of sale, deeds, licenses and such other instruments of
transfer and assignment as may be necessary to vest in Buyer, subject to Section
-------
2.4 and the Assumed Liabilities, good and valid title to, and all of
- ---
Alltrista's, Holdings' and Sellers' right, title and interest in and to, the
Assets and Intellectual Property, free and clear of all liens, encumbrances,
options and pledges of any kind other than Permitted Liens and Permitted
Encumbrances and except as noted herein and the Schedules hereto, which bills of
sale, deeds, licenses and other instruments of transfer and assignment shall be
in form and substance satisfactory to Buyer in its reasonable judgment.
Section 2.4 Consents to Assignment. Nothing in this Agreement or the
----------------------
documents to be executed and delivered at the Closing shall be deemed to
constitute an assignment or an attempt to assign any permit, contract or other
agreement to which either Alltrista, Holdings or Sellers are a party, if the
attempted assignment thereof without the consent of the other party to such
permit, contract or other agreement would constitute a breach thereof or affect
in any way the rights of either Alltrista, Holdings or Sellers thereunder. If
any such consent shall not be obtained at or prior to the Closing, or if an
attempted assignment would be ineffective or would adversely affect either
Alltrista's, Holdings' or Sellers' rights thereunder, Alltrista, Holdings and
Sellers shall cooperate in any arrangement Buyer may reasonably request
(provided that the payment of money to any party shall not be required) to
provide for Buyer the benefits under such permit, contract or other agreement.
Section 2.5 Subsequent Documentation. At any time and from time to time
------------------------
after the Closing Date, Alltrista, Holdings and Sellers shall, upon the request
and expense of Buyer, and Buyer shall, upon the request and expense of Alltrista
and Sellers, promptly execute, acknowledge, and deliver, or cause to be
executed, acknowledged, and delivered, such further instruments and other
documents, and perform or cause to be performed such further acts, as may be
reasonably required to evidence or effectuate the sale, conveyance, transfer,
assignment, and delivery hereunder of the Assets and the Intellectual Property,
the assumption by Buyer of the Assumed Liabilities, the performance by the
parties of any of their other respective obligations under this Agreement, and
to carry out the purposes and intent of this Agreement.
Section 2.6 Closing. The Closing (the "Closing") of the transactions
------- -------
contemplated hereby shall occur as soon as practicable following the fulfillment
of the conditions to Closing set forth in Article VIII hereof, but in no event
later than the Drop Dead Date. The Closing will be held at the offices of Ice
Miller in Chicago, Illinois at 10:00 a.m. (local time) or at such other time and
place as the parties mutually agree. The date upon which the Closing occurs is
referred to herein as the "Closing Date".
------------
ARTICLE III
PURCHASE PRICE
Section 3.1 Consideration, Payment. The aggregate consideration for the
----------------------
Assets (the "Purchase Price") will be: (i) Twenty Three Million Five Hundred
--------------
Thousand Dollars
8
($23,500,000) less the Shared Savings Obligations; and (ii) the assumption of
the Assumed Liabilities (including the Shared Savings Obligations). The Purchase
Price shall be delivered by Buyer to Sellers, Holdings and Alltrista as follows:
(i) One Million Five Hundred Thousand Dollars ($1,500,000) by wire transfer upon
execution of this Agreement (the "Deposit"); (ii) Nineteen Million Five Hundred
-------
Thousand Dollars ($19,500,000) less the Shared Savings Obligations by wire
transfer at Closing; (iii) Two Million Five Hundred Thousand Dollars
($2,500,000) by delivery at Closing of a promissory note in the form attached
hereto as Exhibit 3.1(a) (the "Promissory Note"); and (iv) the balance of the
-------------- ---------------
Purchase Price by the execution and delivery at Closing of an agreement in the
form of Exhibit 3.1(b) assuming the Assumed Liabilities.
--------------
Section 3.2 Allocation of Consideration. Alltrista, Sellers and Buyer
---------------------------
agree to allocate the Purchase Price among the Assets prior to Closing. Buyer
and Alltrista shall each file, in accordance with Section 1060 of the Internal
Revenue Code of 1986 (the "Code") an Asset Allocation Statement on Form 8594
----
which reflects such allocation with its federal income tax return for the tax
year in which the Closing Date occurs and shall contemporaneously provide the
other parties with a copy of the Form 8594 as filed. Each party agrees not to
assert, in connection with any tax return, audit or other similar proceeding,
any allocation of the Purchase Price which differs from such allocation.
Section 3.3 Deposit. The Deposit shall be held subject to the terms of this
-------
Agreement by Sellers, Holdings and Alltrista. Upon Closing, the Deposit shall be
retained by Sellers, Holdings and Alltrista as partial consideration for the
Assets. Upon termination of this Agreement by Sellers, Holdings and Alltrista
pursuant to Section 11.1(c) hereof, or Section 11.1(e) hereof (provided Sellers,
--------------- ---------------
Holdings and Alltrista do not cause the failure to close by the Drop Dead Date)
Sellers, Holdings and Alltrista shall be entitled to retain the Deposit as
liquidated damages and, unless Buyer's failure to close is determined to be an
intentional breach without good cause or in bad faith, such Deposit shall be
retained in lieu of all other damage claims arising out of or relating to this
Agreement. Upon termination of this Agreement by Buyer pursuant to Section
-------
11.1(b) hereof, Section 11.1(d) hereof or Section 11.1(e) hereof (provided Buyer
- ------- --------------- ---------------
did not cause the failure to close by the Drop Dead Date, which reasons shall
include but not be limited to Force Majeure and inability to obtain all surveys,
title commitments and Phase I environmental surveys no fewer than fifteen (15)
days prior to Closing), Sellers, Holdings and Alltrista shall promptly return
the Deposit to Buyer. In the event Sellers, Holdings and Alltrista believe they
are entitled to retain the Deposit pursuant to this Section, they shall provide
Buyer with a written notice to that effect within five (5) days of the
termination of this Agreement or the Drop Dead Date, whichever is earlier. Buyer
shall have fifteen (15) days from its receipt of such notice to send Sellers,
Holdings and Alltrista a Notice of Dispute. If a Notice of Dispute is sent
pursuant to this Section, such dispute shall be resolved pursuant to the
procedures set forth in Article IX hereof. If no Notice of Dispute is sent
pursuant to this Section, Sellers, Holdings and Alltrista shall be entitled to
retain the Deposit.
ARTICLE IV
ASSUMPTION OF LIABILITIES
At Closing, on the terms and conditions set forth herein, Buyer agrees
to assume and discharge only the liabilities and obligations of Sellers,
Holdings or Alltrista set forth on
9
Schedule 4 (the "Assumed Liabilities") for which Buyer agrees to be solely
- ---------- -------------------
responsible. Sellers shall pay and be responsible for all liabilities or
obligations of Sellers, Holdings or Alltrista arising from or relating to the
Business or the Assets which are not Assumed Liabilities unless otherwise
specifically set forth in this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLERS, HOLDINGS AND ALLTRISTA
Sellers, Holdings and Alltrista jointly and severally represent and warrant
to and agree with Buyer as follows, all of which representations, warranties and
agreements are made as of the date of this Agreement and as of the Closing Date:
Section 5.1 Disclosure Schedule. The disclosure schedule attached hereto as
-------------------
Schedule 5.1 (the "Disclosure Schedule") is divided into sections which
- ------------ -------------------
correspond to the sections of Article V of this Agreement. Disclosure of any
---------
matter within a section of the Disclosure Schedule shall be deemed disclosure
only with regard to the corresponding section of this Agreement and those
sections specifically cross-referenced.
Section 5.2 Organization; Power. Each Seller and Alltrista is a corporation
-------------------
duly organized and validly existing under the laws of the State of Indiana.
Holdings is a corporation duly organized and validly existing under the laws of
the State of Delaware. Each Seller, Holdings and Alltrista is qualified to do
business and is in good standing in each jurisdiction in which the character and
location of the Assets or the nature of the Business makes such qualification
necessary. Each Seller and Alltrista has the requisite corporate power and
authority to own or lease the Assets, as the case may be, to operate the Assets
as such Assets are now being operated, to conduct the Business as such Business
is now being conducted and to consummate the transactions contemplated hereby.
Each Seller and Alltrista has had, at all times in the past during which such
Seller owned, leased or operated any Assets, the requisite corporate power and
authority to own or lease the assets, as the case may have been, and to operate
the Assets as such Assets were being operated at such time. Holdings does not
lease or operate any Assets and does not conduct any portion of the Business.
Holdings has the requisite corporate power and authority to consummate the
transactions contemplated hereby.
Section 5.3 Articles of Incorporation and Bylaws. Each of the Sellers,
------------------------------------
Holdings and Alltrista have furnished Buyer with (a) their articles of
incorporation, as amended to date and (b) their bylaws, as amended to date. Such
articles of incorporation and bylaws are in full force and effect.
Section 5.4 Authorization of Agreement. The execution, delivery and
--------------------------
performance of this Agreement by each Seller, Holdings and Alltrista has been
duly and effectively authorized by all necessary corporate action on the part of
Sellers, Holdings and Alltrista (including, but not limited to, approval by the
stockholders of such entities). This Agreement constitutes, and the documents to
be executed at Closing, upon execution and delivery thereof, will constitute,
valid and binding obligations of Sellers, Holdings and Alltrista enforceable in
accordance with their terms, except that such enforcement may be limited by
bankruptcy, insolvency or other similar
10
laws affecting the enforcement of creditors' rights generally, and general
principles of equity, regardless of whether enforcement is sought in a
proceeding in equity or at law.
Section 5.5 No Conflicts. Except as set forth in Section 5.5 of the
------------ -----------
Disclosure Schedule, the execution, delivery and performance of this Agreement
by Sellers, Holdings and Alltrista will not, with or without the giving of
notice or the lapse of time, or both, (a) violate any provision of law, statute,
rule or regulation to which Sellers, Holdings or Alltrista is subject (excluding
Bulk Sales Laws), (b) violate any judgment, order, writ or decree of any court
applicable to Sellers, Holdings or Alltrista, (c) breach, violate or cause the
loss of any permits, licenses, orders or approvals relating to the Business, or
(d) result in a breach of or conflict with any term, covenant, condition or
provision of, result in a modification or termination of, constitute a default
under, or result in the creation or imposition of any lien, security interest,
restriction, charge or encumbrance upon any of the Assets (other than Permitted
Liens and the Assumed Liabilities) pursuant to, the articles of incorporation or
bylaws of Sellers, Holdings or Alltrista or any commitment, contract or other
agreement or instrument to which Sellers, Holdings or Alltrista is a party or by
which any of the Assets are or may be bound or affected or from which Sellers,
Holdings or Alltrista derive benefits with respect to the Business.
Section 5.6 Consents and Approvals. Except as set forth in Section 5.6 of
---------------------- -----------
the Disclosure Schedule, no permit, application, notice, transfer, consent,
approval, order, qualification, waiver from, or authorization of, or
declaration, filing or registration with, any governmental authority is
necessary in connection with the execution and delivery by Sellers, Holdings or
Alltrista of this Agreement or the consummation by Sellers, Holdings or
Alltrista of the transactions contemplated hereby, and no consent of any third
party (including, without limitation, any governmental entity) is required to
transfer any of the Assets, including, without limitation, any of the Contracts,
permits, licenses or other authorizations related to the Business, or to
otherwise consummate any of the transactions contemplated hereby.
Section 5.7 Financial Information. Buyer has been provided with certain
---------------------
unaudited financial information for the Thermoformed Products Division of
Alltrista, including an income statement for the eight months ended August 31,
2001 and an unaudited balance sheet dated September 30, 2001, which is attached
hereto as Exhibit 5.7(a) (collectively, the "Financial Information"). Except as
-------------- ---------------------
set forth in Section 5.7 of the Disclosure Schedule, the Financial Information
-----------
(a) has been prepared in accordance with the books and records of the
Thermoformed Products Division; (b) presents fairly in all material respects the
operations and financial condition of the Thermoformed Products Division for the
periods and as of the dates indicated; and (c) was prepared in accordance with
United States generally accepted accounting principles consistently applied
("GAAP"), consistent with past practice and in the ordinary course of business.
----
The books of account and other financial records of each Seller, Holdings and
Alltrista related to the Financial Information, Accounts Receivable, Inventory,
the Assumed Liabilities, other current assets, fixed assets, accounts payable
and other current liabilities of or relating to the Business or the Assets are
complete and correct, are maintained in accordance with good business and
financial reporting practices and are located at the addresses set forth on
Schedule 1.1(d).
- ---------------
Section 5.8 No Undisclosed Liabilities or Claims. Except as set forth in
------------------------------------
Section 5.8 of the Disclosure Schedule, Sellers, Holdings and Alltrista have no
- -----------
outstanding liabilities or
11
obligations, whether accrued, absolute, contingent or otherwise, relating to the
Business except (a) to those reflected in the most recent balance sheet for
Sellers included in the Financial Information and (b) current liabilities
incurred in the ordinary course of business since September 30, 2001.
Section 5.9 Litigation. Except as set forth in Section 5.9 of the
---------- -----------
Disclosure Schedule, there is no claim, action, suit, proceeding, arbitration,
investigation or hearing or notice of hearing pending or, to Sellers', Holdings'
or Alltrista's Knowledge, threatened against either Sellers, Holdings, Alltrista
or any of their affiliates, relating to the Business or any of the Assets or
with respect to the transactions contemplated by this Agreement. No such claim,
action, suit, proceeding, arbitration, investigation or hearing listed in
Section 5.9 of the Disclosure Schedule could prevent the Closing and the
- -----------
consummation of the transaction contemplated hereby; provided, however, that
-------- -------
Sellers, Holdings or Alltrista, as the case may be, shall retain all liability
with respect to all matters set forth in Section 5.9 of the Disclosure Schedule
unless a matter is specifically included in Schedule 4 as one of the Assumed
----------
Liabilities. There are no unsatisfied judgments against any of the Sellers,
Holdings, Alltrista or any of their affiliates relating to the Business or the
Assets.
Section 5.10 Taxes. Except as set forth in Section 5.10 of the Disclosure
----- ------------
Schedule:
(a) Alltrista on behalf of Sellers, Holdings and itself has prepared and
filed, with the appropriate foreign, federal, state and local tax authorities,
all income, excise and other Tax Returns required to be filed by Alltrista,
Sellers and Holdings related to the Business as of the date hereof, all such Tax
Returns are complete, true and accurate, and each Seller, Holdings and Alltrista
have paid all Taxes shown on such Tax Returns to be due or which have become due
pursuant to any assessments, deficiency notice, 30 day letter or similar notice
received by it;
(b) no extensions of any statutes of limitation have been invoked by
Sellers, Holdings, or Alltrista, or any of their affiliates, with respect to any
Taxes or Tax Returns related to the Business;
(c) no other Tax Returns (including, without limitation, Tax Returns filed
on behalf of Alltrista or its affiliates other than Sellers or Holdings) are
required to be filed in connection with the Business;
(d) there are no claims pending or threatened for Taxes against either
Sellers, Holdings or Alltrista attributable to the Business in excess of the
amounts reflected in the Financial Information for such Taxes for such entities;
(e) Alltrista on behalf of each Seller, Holdings and itself has paid or
provided adequate reserves for all Taxes attributable to the Business;
(f) no deficiencies on either Sellers', Holdings' or Alltrista's Tax
Returns or reports attributable to or otherwise allocable to the Business known
to either Sellers, Holdings or Alltrista have been threatened as of the date
hereof; and
(g) Alltrista on behalf of each Seller, Holdings and itself has made all
withholding payments required to be made under all applicable federal, state,
local and foreign laws and
12
regulations with respect to compensation paid to employees relating to the
Business and amounts withheld have been properly paid to the appropriate
authorities.
Section 5.11 Accounts Receivable and Accounts Payable.
----------------------------------------
(a) All Accounts Receivable reflected on the Financial Information or on
the records of the Sellers on the Closing Date, represent sales actually made in
the ordinary course of business or valid claims as to which substantial
performance has been rendered and are appropriately recognized as revenue in
accordance with GAAP, consistent with past practice and in the ordinary course
of business. The listing of Accounts Receivable attached to Section 5.11 of the
------------
Disclosure Schedule is true and correct (including the aging thereon) as of the
date of preparation, and no change has occurred since the date of preparation,
except in the ordinary course of business.
(b) The accounts payable of each Seller that constitute Assumed
Liabilities are related to the Business are reflected on the September 30
Balance Sheet or in existence on the Closing Date arose, or will arise, from
bona fide transactions in the ordinary course of business, and all such accounts
payable either have been paid, are not yet due and payable or are being
contested by Sellers in good faith. The listing of accounts payable attached to
Section 5.11 of the Disclosure Schedule is true and correct as of September 30,
- ------------
2001 and when updated pursuant to Section 7.13 of this Agreement, will be true
------------
and correct as of the Closing Date.
Section 5.12 Inventory. The Inventory is, and at Closing will be, at
---------
levels consistent with the past practices of the Business in the ordinary
course. Inventory is valued at the lower of cost or market in the Financial
Information in accordance with GAAP, consistent with past practice and in the
ordinary course of business.
Section 5.13 Absence of Certain Changes or Events. Except as set forth in
------------------------------------
Section 5.13 of the Disclosure Schedule, since December 31, 2000, Alltrista,
- ------------
Holdings and each Seller have conducted the Business only in the ordinary course
and consistent with past practices and neither Alltrista, Holdings nor either
Seller has, individually or jointly:
(a) suffered any uninsured damage, destruction or loss of any of the
Assets in excess of One Hundred Thousand Dollars ($100,000);
(b) suffered any material adverse change in the operations, prospects,
assets, results of operations or condition (financial or other) of the Business,
and no event has occurred or circumstance exists that may result in such a
material adverse change;
(c) pledged or permitted the imposition of any lien on (other than
Permitted Liens and the Assumed Liabilities) or sold, assigned, transferred or
otherwise disposed of any of the Assets, except the sale of Inventory in the
ordinary course of business;
(d) made any change in any method of accounting or accounting principle or
practice;
(e) granted any general increase in the compensation to the employees
associated with the Business (including any increase pursuant to any bonus,
pension, profit-sharing or other plan or commitment), or any special increase in
the compensation payable or to become payable
13
to any such employee, or made any bonus payments to any such employee, except
for normal merit and cost of living increases in the ordinary course of business
and in accordance with past practice;
(f) entered into any employment agreements with any employees associated
with the Business; or
(g) failed to operate the Business in the ordinary course or to preserve
the Business intact, to keep available to Buyer the services of the employees of
Sellers, Holdings or Alltrista related to the Business and, to the extent
associated with the Business to preserve for Buyer the goodwill of the suppliers
and customers of the Business, and others having Business relations with
Sellers, Holdings or Alltrista.
Section 5.14 Contracts and Commitments. Section 5.14 of the Disclosure
------------------------- ------------
Schedule lists all of the following which relate to the Assets, the Business
and/or the employees of each Seller, Holdings and Alltrista employed in
connection with the Business (collectively, the "Contracts"):
---------
(a) employment, consulting, bonus, profit-sharing, percentage
compensation, deferred compensation, pension, welfare, retirement, stock
purchase or stock option plans or agreements with any employees, agents,
affiliates or labor unions, excluding agreements terminable by Sellers on not
more than 30 days' notice without liability or penalty;
(b) contracts, agreements, or commitments relating to any joint venture,
partnership, strategic alliance, or sharing of profits or losses with any
person;
(c) leases for all Real Property;
(d) contracts, agreements, or commitments containing covenants purporting
to limit the freedom of either Seller or any of their employees to compete in
any business or in any geographic area;
(e) contracts, agreements, or commitments requiring payments or
distributions to any employee of Sellers, Holdings or Alltrista or any relative
or affiliate of any such person;
(f) contracts, agreements, or commitments not disclosed on any other
Schedule to this Agreement that involve the payment or receipt by either Seller,
Holdings or Alltrista (whether in payment of a debt, as a result of a guarantee
or indemnification, for goods or services, or otherwise) of more than Fifty
Thousand Dollars ($50,000) per year or One Hundred Thousand Dollars ($100,000)
over the initial term thereof, or are otherwise material to the Business; and
(g) material contracts not made in the ordinary course of business.
Each Seller, Holdings and Alltrista have made true and correct copies of all of
the Contracts available to Buyer, except for Contracts with Customers, which
shall be provided to Buyer within five (5) days of the execution of this
Agreement. Furthermore, such Customer Contracts shall not be included in Section
-------
5.14 of the Disclosure Schedule until five (5) days following the
- ----
14
execution of this Agreement, at which time an update with all such information
shall be provided to Buyer.
Section 5.15 Tooling and Dies. Section 5.15 of the Disclosure Schedule
---------------- ------------
lists each of the tools and dies owned by Sellers, Holdings or Alltrista and
used in the Business, and provides the location of each respective item.
Sellers, Holdings and Alltrista have all tools and dies needed to serve their
customers in the ordinary course as the Business has been operated over the past
eighteen (18) months, unless a customer has requested the return of its tools
and dies.
Section 5.16 Assumed Liabilities. Neither of the Sellers, Holdings nor
-------------------
Alltrista is in default with respect to any of the Assumed Liabilities, all such
Assumed Liabilities were incurred in the ordinary course of business, and
neither of the Sellers, Holdings nor Alltrista has received any notice of, nor
otherwise to their Knowledge is there, any claim, cause of action or other
factor that would cause any Assumed Liability to exceed the corresponding
amount, if any, set forth in Schedule 4.
----------
Section 5.17 OSHA, Environmental.
-------------------
(a) Except as set forth in Section 5.17 of the Disclosure Schedule,
------------
neither Alltrista, Holdings nor either Seller has received any written notice
from a governmental authority that the Business or Assets have not been in the
preceding three fiscal years or are presently not in compliance with OSHA and
any applicable state provisions, and to the Knowledge of Holdings, Alltrista and
Sellers, the Assets and operations of Alltrista, Holdings and each Seller
related to the Business are in compliance with OSHA and any similar or related
applicable state law provisions. In addition, after making an inquiry of the
plant managers of the Business, to the Knowledge of Sellers, Holdings and
Alltrista, the Business has not been subject to an OSHA inspection within the
past six months, except with regard to the Portage, Wisconsin facility, and they
do not anticipate the issuance of any citations as a result of that inspection.
(b) Except as set forth in Section 5.17 of the Disclosure Schedule:
------------
(i) Neither Alltrista, Holdings nor either Seller has deposited or
caused to be deposited, on, under or about any Real Property, including without
limitation into the ambient air, surface water, groundwater, land surface, or
subsurface strata, any Release of Hazardous Substances, except in compliance
with Environmental Laws;
(ii) Neither Alltrista, Holdings nor either Seller has used any
Real Property to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce, process or in any manner deal with Hazardous
Substances, except in compliance with applicable Environmental Laws;
(iii) With respect to the Business, Alltrista, Holdings and each
Seller has obtained all required registrations, permits, licenses, and other
authorizations which are required under federal, state and local laws and
regulations relating to pollution or protection of the environment, including,
but not limited to, all Environmental Laws and including all laws relating to
emissions, discharges, releases, or threatened releases of Hazardous Substances
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Substances;
15
(iv) With respect to the Business, Alltrista, Holdings and each Seller
are in compliance with all terms and conditions of required registrations,
permits, licenses and authorizations and are also in compliance with other
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in the
Environmental Laws or contained in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder;
(v) There is no civil, criminal, or administrative action, suit,
demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter pending or threatened with respect to the Business
relating in any way to (a) the violation of Environmental Laws or any
regulation, code, plan, order, decree, judgment, injunction, notice or
demand letter issued, entered, promulgated, or approved thereunder, or (b)
the release into the environment of any Hazardous Substances, whether or
not occurring at or on a site owned, leased or operated by Alltrista,
Holdings or either Seller relating to the Business;
(vi) With respect to the Business, Alltrista, Holdings and each Seller
have timely filed all reports, obtained all required approvals, generated
and maintained all required data, documentation and records required by the
Environmental Laws or any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated, or
approved thereunder.
Section 5.18 Customers and Vendors. Section 5.18 of the Disclosure Schedule
--------------------- ------------
sets forth correct and complete lists of the customers of the Business that
resulted in revenues during the most recently completed fiscal year in excess of
One Million Dollars ($1,000,000) ("Customers") and the top fifteen vendors
---------
("Vendors") of the Business during the most recently completed fiscal year,
-------
based on the aggregate amount of expenditures by Alltrista, Holdings or either
Seller in such fiscal year. Except as described in Section 5.18 of the
------------
Disclosure Schedule, since August 31, 2001, no Customer has informed Sellers,
Holdings or Alltrista that it will change its business relationship with the
Business and, to the Knowledge of Sellers, Holdings and Alltrista, individually
or jointly, there are not any circumstances which are likely to cause such a
change. Except as described on Section 5.18 of the Disclosure Schedule, Sellers,
------------
Holdings and Alltrista, individually or jointly, have no reason to believe that,
following the Closing, any particular Customer of the Business will fail to do
business with Buyer substantially as such Customer currently does business with
Sellers, Holdings or Alltrista, as the case may be.
Section 5.19 Books and Records. The books and corporate records of each
-----------------
Seller, Holdings and Alltrista related to the Business and the Assets are
complete and correct, are maintained in accordance with good business practices
and are located at the address set forth on Schedule 1.1(d).
Section 5.20 Employment Matters.
------------------
(a) Except as provided in Section 5.20(a) of the Disclosure Schedule,
---------------
each Seller, Holdings and Alltrista is in compliance with all laws, rules and
regulations respecting employment, employment practices, terms and conditions of
employment and wages and hours
16
with respect to the Business Employees, including, without limitation, all
laws relating to employee relations, equal employment, fair employment
practices, entitlements, prohibited discrimination, harassment, and retaliation,
required accommodation, family and medical leave, and other similar employment
practices or acts. With respect to the employees of each Seller relating to the
Business, ("Business Employees"), Alltrista on behalf of each Seller has
------------------
withheld all amounts required by law or agreement to be withheld from the wages
or salaries of, and other payments to such Business Employees and any former
Business Employees and is not liable for any arrearage of wages, salaries or
other payments to such employees and any former employees or any taxes or
penalties for failure to comply with any of the foregoing. Holdings does not
have any employees relating to the Business.
(b) Except as set forth in Section 5.20(b) of the Disclosure Schedule, to
---------------
Seller's, Holdings' and Alltrista's Knowledge, there are no pending demands for
recognition of a union as collective bargaining agent for all or any part of
Business Employees. Except as set forth in Section 5.20(b) of the Disclosure
---------------
Schedule, neither Seller, Holdings nor Alltrista is a party to any collective
bargaining or other labor agreement, and there is no unfair labor practice
charge or complaint relating to the Business against either Sellers, Holdings or
Alltrista pending or, to the Knowledge of Sellers, Holdings and Alltrista,
threatened before the National Labor Relations Board or any other comparable
authority. There is no labor strike, dispute, slowdown, or stoppage actually
pending or, to the Knowledge of either Sellers, Holdings or Alltrista,
threatened against or involving either Sellers, Holdings or Alltrista; no
attempt to organize the Business Employees has been made or, to either Sellers',
Holdings' and Alltrista's Knowledge, proposed in the last three years; no such
grievance or arbitration against either Sellers, Holdings or Alltrista or the
Business is pending and, to the Knowledge of either Sellers, Holdings or
Alltrista, no such grievance or claim for arbitration is threatened; no private
agreement restricts either Sellers, Holdings or Alltrista from relocating,
closing, or terminating any of its operations or facilities; and neither
Sellers, Holdings nor Alltrista has in the past three years experienced any work
stoppage or other labor difficulty or committed any unfair labor practice
related to the Business.
Section 5.21 Employee Benefit Plans.
----------------------
(a) Each employee pension benefit plan (as defined in Section 3(2) of Title
I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
-----
of either Sellers under which any benefits have been provided to any Business
Employee and that is intended to be a tax qualified plan under Section 401(a) of
the Code (the "Plan") has been and is being operated in accordance with the
----
documents and instruments governing such Plan, and such documents and
instruments are consistent with those provisions of ERISA and the regulations
adopted pursuant thereto that are effective and operative as of the date of this
Agreement, except to the extent that such documents and instruments have not yet
been amended for certain changes in laws and regulations. To either Sellers',
Holdings' or Alltrista's Knowledge, no Plan has incurred any accumulated funding
deficiency within the meaning of Section 302 of ERISA, whether or not waived,
and neither Sellers, Holdings nor Alltrista has incurred any liability with
respect to the Plan that is not reflected in the Financial Information. To each
Seller's, Holdings' and Alltrista's Knowledge, no Plan nor any trust created
thereunder nor any trustee or administrator thereof has engaged in a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Code for which an exception is not available. Each Seller,
17
Holding or Alltrista shall make all required contributions to each Plan
within the period required by ERISA and the Code.
(b) Section 5.21(b) of the Disclosure Schedule contains a list of each
---------------
Plan, employee welfare benefit plan (as defined in Section 3(1) of ERISA),
pension plan, stock option, stock purchase, deferred compensation plan or
arrangement, and other employee fringe benefit plan or arrangement currently
maintained, contributed to or required to be maintained or contributed to by
either Seller for the benefit of any present Business Employees and their
dependents (all the foregoing being herein called "Benefit Plans"). Each Seller
-------------
has delivered or made available to Buyer true, complete and correct copies of
(i) each Benefit Plan (or, in the case of any unwritten Benefit Plans,
descriptions thereof), (ii) the most recent summary plan description for each
Benefit Plan (if any such description was required) and (iii) the most recent
Form 5500 for each Benefit Plan, together with all attachments (if such Form
5500 was required to be filed).
(c) Each Benefit Plan has been operated and is being operated in compliance
with all applicable requirements of the Code and ERISA, and in accordance with
the documents and instruments governing such Benefit Plan, except to the extent
that such documents and instruments have not yet been amended for certain
changes in laws and regulations, which amendments are not yet legally required.
(d) Except as set forth on Section 5.21(d) of the Disclosure Schedule,
---------------
Sellers do not offer post-retirement medical benefits to any Business Employee
who retires from a Seller (other than as required under Section 4980 B of the
Code ("COBRA")). Sellers have reserved the right to terminate or amend any such
-----
post retirement medical benefits at will.
Section 5.22 Employees.
---------
(a) Section 5.22(a) of the Disclosure Schedule sets forth a complete and
---------------
accurate list of all Business Employees as of the date set forth therein,
showing for each: name, hire date, current job title or description, current
salary level or wage rate and any bonus, commission or other remuneration paid
during the most recently completed fiscal year. Except as set forth on Section
-------
5.22(a) of the Disclosure Schedule, as of the date hereof none of the Business
- -------
Employees is currently on short-term or long-term disability, absence, maternity
or other leave of absence. None of the Business Employees are employees of
Holdings;
(b) Except as set forth in Section 5.22(b) of the Disclosure Schedule, each
---------------
Business Employee has executed a proprietary agreement in the form set forth as
Exhibit 5.22(b) hereto that is currently in effect (the "Proprietary
- --------------- -----------
Agreements"). Except as set forth in Section 5.6 of the Disclosure Schedule,
- ---------- -----------
each Proprietary Agreement is assignable to Buyer without the consent of the
respective Business Employee.
(c) Sellers are currently, and have at all times since November 7, 1986,
been in compliance with the requirements of the Immigration Reform and Control
Act of 1986, as amended, as codified at 8 U.S.C. (S) 1324a, et seq.;
(d) Sellers are not currently subject to any investigation or
administrative procedure concerning its compliance with the Immigration Reform
and Control Act of 1986, as codified at 8 U.S.C. (S) 1324a, et seq.;
18
(e) Sellers have not made a false statement or misrepresentation to the
Immigration and Naturalization Service ("INS") or the Department of Labor
---
("DOL") in connection with any application or petition for immigration benefits;
---
(f) Sellers are not subject to any administrative or court order that
precludes, hampers or in any way limits its ability to submit and obtain
approvals of petitions or applications from the INS or the DOL for immigration
benefits;
(g) Sellers have not made a representation or promise to any person
concerning any requested sponsorship for any temporary or permanent immigration
status;
(h) Sellers have identified in Section 5.22(h) of the Disclosure Schedule
---------------
every Business Employee for whom they currently have petitions or applications
for immigration benefits pending with the INS or DOL and have provided true and
complete copies of all petitions and applications to Buyer; and
(i) Sellers have identified on Section 5.22(i) of the Disclosure Schedule
---------------
every Business Employee who is authorized to be employed pursuant to approval of
the INS of a temporary nonimmigrant classification.
Section 5.23 Finder. There is no person or entity that is entitled to a
------
finder's fee or any type of commission in relation to or in connection with the
transactions contemplated by this Agreement as a result of any agreement or
understanding with Alltrista, Holdings or Sellers.
Section 5.24 Sufficiency of Assets. Except as otherwise provided in Section
---------------------
5.24 of the Disclosure Schedule and except for the Excluded Assets, the Assets
include all of the assets associated with the Business, including, but not
limited to, fixed assets, intangible assets, licenses, permits, contracts and
rights, that relate to, arise from, are necessary or are used or held by
Holdings, Sellers or Alltrista in the operation of the Business as presently
conducted. Except for inventory sold in the ordinary course of Business, all
Assets will be transferred to Buyer in their current physical condition, subject
to ordinary normal wear and tear, and at their current locations as of the date
of this Agreement. The Assets are all located at the addresses set forth on
Schedule 1.1(d). The chief executive offices, as defined in the Uniform
- ---------------
Commercial Code, of Sellers, Holdings and Alltrista are maintained at the
respective addresses set forth on Schedule 1.1(d). None of the assets of the
---------------
Sellers, Holdings or Alltrista located in Ft. Smith, Arkansas, relate to the
Assets or are used in the Business.
Section 5.25 Governmental Authorizations. Except as set forth in Section
--------------------------- -------
5.25 of the Disclosure Schedule, each Seller, Holdings and Alltrista have all
- ----
licenses, permits or other authorizations from governmental, regulatory or
administrative agencies or authorities required for the operation of the
Business in the manner presently conducted, each of which will be in full force
and effect on the Closing Date. All such licenses, permits and authorizations
shall be transferred to Buyer at Closing and, except as set forth in Section 5.6
-----------
of the Disclosure Schedule, no consents or approvals are necessary to consummate
such transfers to Buyer.
Section 5.26 Compliance with Applicable Laws. Except as set forth in
-------------------------------
Section 5.26 of the Disclosure Schedule, Sellers, Holdings and Alltrista have
- ------------
each been, is, and on the Closing Date will continue to be, in compliance with
all applicable laws (including duties imposed by
19
common law), rules, regulations, orders, ordinances, judgments and decrees of
governmental authorities (federal, state, local and foreign) having jurisdiction
over, applicable to or otherwise concerning the Business, Assets, and the
products and employees of Alltrista, Holdings and Sellers related to the
Business.
Section 5.27 Title to Assets, Absence of Liens and Encumbrances.
--------------------------------------------------
(a) Schedule 2.1 contains a list of the fixed assets used in the Business
------------
(other than the Real Property and the Excluded Assets). As of the Closing Date
and except for the Assumed Liabilities, Alltrista, Holdings or Sellers will own
all right, title and interest in and to all of the Assets, free and clear of all
liens, encumbrances, security interests, options and pledges, other than
Permitted Liens.
(b) The leases and other agreements or instruments included in the
Contracts, under which Alltrista, Holdings or each Seller holds, leases or is
entitled to the use of any personal property used in the Business, are in full
force and effect and all rentals, or other payments payable thereunder prior to
the date hereof have been duly paid, and Alltrista, Holdings or each Seller, as
the case may be, enjoys peaceable and undisturbed possession under all such
leases.
Section 5.28 Intellectual Property. Attached hereto as Schedule 2.1(l) is a
--------------------- ---------------
true and complete list of all patents, trademarks, copyrights and assumed
business names used in the Business as now being conducted (other than for
off-the-shelf software programs that have not been customized for use by
Sellers, Holdings or Alltrista). Except as set forth in Schedule 2.1(l),
---------------
Sellers, Holdings or Alltrista owns or has the right to use all Intellectual
Property necessary to the conduct of Business as presently conducted and as
necessary to develop Sellers', Holdings' or Alltrista's products and services as
such products and services are currently anticipated to be developed. Except as
indicated in Schedule 2.1(l), with respect to the Intellectual Property:
---------------
(a) Sellers, Holdings or Alltrista owns all right, title, and interest in
and to or a valid and enforceable license or waiver to use all of such
Intellectual Property;
(b) there are no outstanding notices or claims (written or oral, past or
present) received by Sellers, Holdings or Alltrista asserting the infringement
by, or invalidity, abuse, misuse, or unenforceability of, any of such
Intellectual Property by the Sellers, Holdings or Alltrista, and, to Sellers',
Holdings' and Alltrista's Knowledge, there are no grounds for the same; and
(c) to the extent transferable, all such Intellectual Property will be
owned or available for use by Buyer on identical terms and conditions for
eighteen (18) months after Closing or for such shorter period of time as
Sellers, Holdings or Alltrista have the right to use such Intellectual Property.
(d) Sellers, Holdings and Alltrista have no Knowledge of any defect in the
title of the Intellectual Property acquired under this Agreement; and
(e) Sellers, Holdings and Alltrista have no notice of (i) any ownership
contests with respect to such Intellectual Property or (ii) any uncorrectable
breaks or disruptions to the chain-of-title of such Intellectual Property as
presented to Buyer under this Agreement or in the
20
assignment documents executed by Alltrista or any of its subsidiaries in
connection with such Intellectual Property.
Except as disclosed on Section 5.28 of the Disclosure Schedule, the conduct of
------------
the Business has not and does not infringe any Intellectual Property rights of
others. Except as set forth on Schedule 2.1(l), all of the patents, trademarks
---------------
(including service marks and logos) and copyrights owned by Sellers, Holdings or
Alltrista have been duly registered in, filed in or issued by the United States
Patent and Trademark Office or Register of Copyrights or the corresponding
offices of other countries as identified on Schedule 2.1(l) and have been
---------------
properly maintained and renewed, consistent with commercially reasonable
business practices, in accordance with all applicable provisions of law and
administrative regulations in the United States and each such country, except in
those instances set forth in Schedule 2.1(l) where registration applications are
---------------
pending in either such Office or Register. Except as disclosed in Section 5.28
------------
of the Disclosure Schedule, there are no licenses now outstanding or other
rights granted to third parties under any Intellectual Property. To the extent
any Intellectual Property exists, Sellers, Holdings or Alltrista have taken
reasonable security measures to maintain the confidentiality of and to protect
such Intellectual Property. After the Effective Time, all patents, patent
applications or other Intellectual Property used or useful in the Business shall
be unimpaired as a result of the transactions anticipated by this Agreement.
Section 5.29 Real Property.
-------------
(a) Except as set forth in Section 5.29 of the Disclosure Schedule, (i)
------------
there are no physical or mechanical defects in any of the improvements on the
Real Property which would impair the intended use of the Real Property, and (ii)
all such improvements are reasonably functional for their intended use (subject
to normal wear and tear);
(b) Each Seller is the sole owner of good, marketable and insurable fee
simple title to the owned Real Property and legal, valid and binding leasehold
title to the leased Real Property free and clear of all liens, security
interests, covenants, conditions, rights-of-way, easements and encumbrances of
any kind or character whatsoever, subject only to the Permitted Encumbrances and
the Assumed Liabilities as noted in the Schedules hereto.
(c) Neither Seller has committed or obligated itself in any manner
whatsoever to sell the owned Real Property, or any portion thereof, to any party
other than Buyer. Except with respect to Permitted Encumbrances and Permitted
Liens, neither Seller has hypothecated or assigned any rents or income from the
Real Property, or any portion thereof, in any manner except pursuant to secured
financing to be assumed or discharged at Closing.
(d) All buildings and improvements on the Real Property have received all
approvals of governmental authorities (including licenses and permits)
reasonably necessary in connection with the current ownership and operation
thereof and such buildings and improvements in general have been operated and
maintained in compliance with applicable laws, rules and regulations; and
21
(e) All buildings and improvements on the Real Property are supplied
with utilities and other similar services or have available utilities and other
similar services (e.g., on-site wells) reasonably adequate for the present
operation.
Section 5.30 Working Capital.
---------------
(a) The Initial Working Capital of the Business at September 30, 2001
is Twenty Million Two Hundred Thirty Thousand Two Hundred Seventy Dollars
($20,230,270), as calculated on Schedule 1.1(a). The components of the
---------------
calculation have been determined in accordance with GAAP, and the calculation
has been performed in accordance with GAAP, consistent with past practice and in
the ordinary course of business (including the accounting principles, policies
and practices set forth on Schedule 1.1(a)).
----------------
(b) The Closing Working Capital of the Business will not be less than
the Initial Working Capital.
Section 5.31 Hardware and Software. The computers, hardware, data
---------------------
transmission equipment, software and software licenses conveyed to Buyer as a
part of the Assets are adequate to run the Business in the ordinary course.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents, warrants and covenants to and agrees with
Alltrista, Sellers and Holdings as follows, all of which representations,
warranties and agreements are made as of the date of this Agreement and as of
the Closing Date:
Section 6.1 Organization. Buyer is a corporation duly organized and
------------
validly existing under the laws of its state of incorporation. Buyer has the
requisite corporate power and authority to execute, deliver and perform this
Agreement and consummate the transactions contemplated hereby.
Section 6.2 Authorization of Agreement. The execution, delivery and
--------------------------
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Buyer. This Agreement constitutes, and the documents to be
executed at Closing, upon execution and delivery thereof, will constitute, valid
and binding obligations of Buyer enforceable in accordance with their terms,
except that such enforcement may be limited by (a) bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally, and
(b) general principles of equity, regardless of whether enforcement is sought in
a proceeding in equity or at law.
Section 6.3 Approvals. Excluding Bulk Sales Law requirements, no
---------
permit, application, notice, transfer, consent, approval, order, qualification,
waiver from or authorization of or declaration, filing or registration with any
governmental authority is necessary in connection with the execution and
delivery by Buyer of this Agreement or the consummation by Buyer of the
transactions contemplated hereby, and no consent of any third party is required
to consummate any of the transactions contemplated hereby.
22
Section 6.4 Finder. There is no person or entity that is entitled to a
------
finder's fee or any type of commission in relation to or in connection with the
transactions contemplated by this Agreement as a result of any agreement or
understanding with Buyer.
Section 6.5 No Conflicts. The execution, delivery and performance of
------------
this Agreement by Buyer and consummation by Buyer of the transactions
contemplated hereby will not, with or without the giving of notice or the lapse
of time, or both, (a) violate any provision of law, statute, rule or regulation
to which Buyer is subject, (b) violate any judgment, order, writ or decree of
any court applicable to Buyer, or (c) result in the breach of or conflict with
any term, covenant, condition or provision of, result in the modification or
termination of, constitute a default under, or result in the creation or
imposition of any lien, security interest, restriction, charge or encumbrance
upon any of the assets of Buyer pursuant to the articles of incorporation or
bylaws of Buyer, or any commitment, contract or other agreement or instrument to
which Buyer is a party or by which any of the Assets is or may be bound or
affected or from which Buyer derives benefit.
ARTICLE VII
COVENANTS OF THE PARTIES
Section 7.1 Operation Of Business Prior To Closing. Between the date
--------------------------------------
hereof and the earlier of the termination of this Agreement or the Closing Date:
(a) Negative Covenants. Alltrista, Sellers and Holdings covenant and
------------------
agree with Buyer that, except with the prior written consent of Buyer, neither
Alltrista, Sellers nor Holdings shall do any of the following with respect to
the Business or the Assets other than in the ordinary course of business:
(i) sell or otherwise dispose of any Assets or pledge, assign
or otherwise convey, or cause any lien to be placed upon any Asset
other than Permitted Liens or the Assumed Liabilities;
(ii) amend the articles of incorporation or bylaws of Alltrista,
Holdings or either Seller in such fashion as to have any effect on the
Business, the Assets or the transactions contemplated by this
Agreement;
(iii) permit the corporate existence of Alltrista, Holdings or
either Seller or any permit of Alltrista, Holdings or Sellers relating
to the Business to be suspended, lapsed, revoked or modified;
(iv) amend, terminate or renew any Contract on terms that have
not been approved by Buyer;
(v) allow any insurance policy relating to the Business or any
Asset to be amended or terminated without simultaneously replacing such
policy with a policy providing substantially equivalent coverage,
insuring comparable risks and issued by an insurance company
financially comparable to the prior insurance company;
23
(vi) renegotiate, renew or extend the existing collective
bargaining agreements for Business Employees, increase any compensation
or benefits payable, enact any termination pay policies or enter into
any employment agreements with any Business Employees, except pursuant
to any agreements disclosed in Section 5.14 of the Disclosure Schedule
------------
which mandate such increases or termination pay policies or for normal
salary adjustments consistent with past practice; or
(vii) modify the nature or amount of the Assumed Liabilities
other than in the ordinary course of business.
(b) Affirmative Covenants. Alltrista, Holdings and Sellers shall use
---------------------
all commercially reasonable efforts to:
(i) operate the Business in the ordinary course of business;
(ii) comply in all respects with all applicable laws affecting
the Business;
(iii) pay accounts payable of the Business in accordance with its
past practice; and
(iv) preserve their relationships with customers of and
suppliers to the Business and others having business relations with the
Business.
Section 7.2 Approvals and Consents. Each party shall use its reasonable
----------------------
best efforts to consummate the transactions contemplated hereby on or prior to
the Closing Date (including, but not limited to, the fulfillment of all closing
conditions) and to obtain in writing prior to the Closing Date all Closing
Approvals and shall deliver to the other party copies of such approvals and
consents in form and substance reasonably satisfactory to the other party. If
any party hereto learns prior to Closing that a permit, application, notice,
transfer, consent, approval, order, qualification, waiver from, or authorization
of, or declaration, filing or registration with, any third party is necessary to
transfer the Assets to Buyer (but that it has not been obtained), such party
shall update Section 5.6 of the Disclosure Schedule to add such item or, if such
-----------
party is the Buyer, it shall notify Sellers of such omission from Section 5.6 of
-----------
the Disclosure Schedule and Sellers shall cause it to be added.
Section 7.3 Payment of Liabilities, Bulk Sales. Buyer and Sellers,
----------------------------------
Holdings and Alltrista hereby waive compliance with the bulk-transfer provisions
of the Uniform Commercial Code (or any similar law) ("Bulk Sales Laws") in
---------------
connection with the transactions contemplated by this Agreement.
Section 7.4 Access Prior to Closing; Environmental Investigation.
----------------------------------------------------
Subject to Section 7.11 hereof, from the date of this Agreement until the
------------
Closing Date (or, if earlier, the date this Agreement is terminated), Alltrista,
Holdings and each Seller shall provide Buyer, its agents and designees, upon
reasonable prior notice, the right to go upon the Real Property for the purpose
of inspecting the same and making such tests, inquiries and examinations,
including, but not limited to, Phase I environmental site assessments (at
Buyer's sole expense), as Buyer shall deem necessary. Sellers, Holdings and
Alltrista shall further provide Buyer and its representatives with reasonable
access to, and will make available for inspection and review, the
24
Assets, all properties, books, records and accounts, and with reasonable prior
notice to Sellers, personnel of Sellers, Holdings and Alltrista relating to the
Business and Customers of the Business (provided, however, that no discussions
-------- -------
with Customers shall take place without a representative of Alltrista present)
in order that Buyer may have a reasonable opportunity to make such investigation
as it shall desire to make of the Business during normal business hours.
Section 7.5 Sellers' Employees, Retirement Benefits.
---------------------------------------
(a) Prior to the Closing Date, Buyer shall offer employment to all of the
Business Employees of Sellers other than those employees on long-term disability
listed in Section 5.22 of the Disclosure Schedule (the "Leave Employees") or
------------ ---------------
Kyle DeJaeger, Jim Rahn or Jim Bescup (the "Ft. Smith Employees") (all such
-------------------
Business Employees to whom Buyer shall be required to offer employment and who
accept such employment are referred to herein as the "Transferred Employees").
---------------------
Each Seller, Holdings and Alltrista shall make reasonable efforts to assist
Buyer in securing the employment of the Business Employees to whom Buyer shall
be required to offer employment hereunder. The terms of employment with Buyer of
the Transferred Employees shall provide that the compensation and benefits of
each Transferred Employee with Buyer shall not be less than the Transferred
Employee's base compensation or base hourly rate of pay and basic benefits
(other than post-retirement life insurance benefits) with Sellers as of
September 30, 2001.
(b) Sellers, Holdings and Alltrista shall be liable for workers'
compensation claims for incidents occurring up to and on the Closing Date.
(c) Each Seller shall fully vest, effective as of the Closing Date, the
Transferred Employees who are participating in any employee benefit plans of
Sellers, Holdings and Alltrista that are intended to be qualified under Section
401(a) of the Code. Buyer shall have no obligation to allow the Transferred
Employees to participate in its defined benefit pension plan. Except as
otherwise specifically stated in this Section 7.5(c), the Transferred Employees
shall be treated as new employees of Buyer for purposes of Buyer's Benefit
Plans. Buyer shall amend its medical, life and 401(k) plans to provide that
Transferred Employees shall receive service credit under such plans for purposes
of eligibility and vesting but not for purposes of benefit accrual. The
Transferred Employees shall not be eligible to participate in Buyer's pension
plan. For purposes of Buyer's vacation policy, Transferred Employees shall also
receive credit for years of service with Alltrista or Sellers.
(d) Sellers, Holdings and Alltrista shall continue to provide health care
continuation coverage under COBRA on behalf of all persons who are qualified
beneficiaries and all Business Employees who are Business Employees on the
Closing Date, but any related expense shall be borne by the Business Employees.
(e) The employment of all Transferred Employees with Sellers shall
terminate effective at the close of business on the Closing Date. Sellers shall
complete all necessary paperwork to complete the termination of employment. All
Transferred Employees shall receive their final paycheck from Sellers, Holdings
or Alltrista consistent with applicable state and local law. Sellers, Holdings
and Alltrista shall properly provide to the Transferred Employees all notices
regarding the termination of employment required by federal, state, or local
laws, or
25
company policy. Unless identified as an Assumed Liability, Sellers shall be
responsible for all employment termination and severance liabilities arising at
or prior to Closing, including but not limited to any payments under any
change-in-control agreements, consulting agreements and employment agreements.
Sellers shall be responsible for all employment terminations and severance
liabilities arising at any time in connection with any of the Business Employees
and Leave Employees who are not Transferred Employees.
(f) The employment of all Transferred Employees with Buyer shall commence
effective the start of business on the first business day following the Closing
Date. Buyer shall complete all necessary paperwork to begin the employment of
each employee. Prior to Closing, at times reasonably requested by Buyer and by
delivery of prior notice, Sellers, Holdings and Alltrista shall allow Buyer to
conduct meetings with the Transferred Employees to explain the transition,
terms, and conditions of employment to the Transferred Employees. Unless
otherwise provided in this Agreement, Buyer shall be fully responsible for the
normal payroll and payroll-related benefits reflected upon Schedule 1.1(a) (as
---------------
updated at Closing) as "Accrued Salaries and Benefits" that arise before
Closing, to the extent they relate to the Transferred Employees as set forth in
Schedule 4, and any liabilities arising in connection with termination of
- ----------
employment of the Transferred Employees occurring after the Closing.
(g) Nothing in this Section 7.5 shall prohibit Buyer from terminating the
-----------
employment of a Transferred Employee for any or no reason with or without notice
at any time after the Closing.
Section 7.6 Access After the Closing. After the Closing, Alltrista,
------------------------
Holdings and each Seller shall afford Buyer reasonable temporary access to the
Excluded Assets and Excluded Records (including related computers and computer
records) or corporate records retained by Alltrista, Holdings or Sellers if
necessary to operate the Business and Buyer shall afford each Seller reasonable
temporary access to records acquired hereunder and to the Transferred Employees
to the extent necessary for each Seller to reasonably operate its business and
to prepare its tax returns. After the Closing, Buyer shall afford Sellers
reasonable access to any records acquired hereunder for legitimate business
purposes.
Section 7.7 Taxes.
-----
(a) Buyer and Sellers shall share equally all state and local sales,
transfer, excise, value-added, or other similar taxes (including, without
limitation, all state and local taxes in connection with the transfer of the
Real Property) and any deficiency, interest, or penalty asserted with respect
thereto, and all recording and filing fees that may be imposed by reason of the
sale, transfer, assignment, or delivery by Sellers of the owned Real Property,
and each Seller shall pay all other such taxes or fees for all other Assets.
Sellers shall be responsible for the preparation and filing of all required Tax
Returns and (except for prorated Taxes specifically assumed by Buyer hereunder)
shall be liable for the payment of any and all Taxes relating to all periods
through the Closing Date (including all Taxes resulting from the sale and
transfer by Sellers of Assets hereunder).
(b) The parties hereto agree to furnish or cause to be furnished to one
another, upon request, as promptly as practicable, such information and
assistance relating to the Assets, the
26
Assumed Liabilities and the Business as is reasonably necessary for the
filing of all Tax Returns, and making of any election related to Taxes, the
preparation for any audit by any taxing authority, and the prosecution or
defense of any claim, suit or proceeding relating to any Tax Return. The parties
hereto shall reasonably cooperate with each other in the conduct of any audit or
other proceeding related to taxes involving the Business and each shall execute
and deliver such other documents as are reasonably necessary to carry out the
intent of this Section 7.7. Alltrista, Holdings, each Seller and Buyer shall
-----------
preserve until the fifth anniversary of the Closing Date all records possessed
by such party after the Closing relating to any of the Assets, Assumed
Liabilities or the Business. The parties shall cooperate with each other to
retain records for a reasonably longer period if reasonably requested by either
of them. In addition, from and after the Closing Date, upon reasonable notice
and during normal business hours, the parties shall provide access to each other
and their respective representatives, at the expense of the requesting party, to
such files and records as the requesting party may reasonably deem necessary in
connection with any such return, filing, audit, or other proceeding.
(c) All property taxes levied with respect to the Real Property and any
personal property included in the Assets for a taxable period that includes (but
does not end on) the Closing Date shall be apportioned between Sellers and Buyer
as of the Closing Date based on the number of days of such taxable period
included in the Pre-Closing Tax Period and the number of days of such taxable
period included in the Post-Closing Tax Period. Sellers shall be liable for the
proportionate amount of such taxes that is attributable to the Pre-Closing Tax
Period, and Buyer shall be liable for the proportionate amount of such taxes
that is attributable to the Post-Closing Tax Period. Lease, rental and utility
payments shall also be allocated among Buyer and each Seller based on the
portion of the relevant period that such entity owned the Property. At Closing,
Sellers and Buyer shall agree to a statement setting forth the amount of
reimbursement to which each is entitled under this Section 7.7, together with
-----------
such supporting evidence as is reasonably necessary to calculate the proration
amount. The net proration amount shall be paid by the party owing it to the
other at Closing. Buyer and Sellers shall cooperate prior to the Closing to
agree on mutually acceptable allocations with respect to any other cost
typically allocated in connection with similar real property closings.
Section 7.8 Survey and Title Commitments.
----------------------------
(a) Buyer, at its cost and expense, will obtain, as soon as practicable
using all reasonable efforts, a current ALTA on-the-ground/as built survey of
each parcel of Real Property (collectively, the "Surveys" and each, a "Survey"),
------- ------
prepared by licensed surveyors chosen by Buyer and Buyer's selected title
company (the "Title Company"). The surveys shall be certified to Buyer and the
-------------
Title Company and shall contain such other documentation and certifications as
Buyer or the Title Company may require. The Surveys shall be used for a
description of the Real Property contained in the deeds, lease assignments and
all other documents related to this transaction which require a legal
description.
(b) Buyer shall obtain, at its cost and expense, (i) current title
insurance commitments (collectively, the "Title Commitments" and each, a "Title
----------------- -----
Commitment") pursuant to which the Title Company shall agree to issue to Buyer,
- ----------
at Sellers', Holdings' and Alltrista's expense, owner's policies of title
insurance (collectively, the "Title Policies, and each, a "Title Policy") on the
-------------- ------------
ALTA standard Form B-1970 (amended 10-17-90) policy form or such other form as
may be
27
acceptable to Buyer (except that the standard exceptions relating to survey
matters, rights of parties in possession, other than the rights of tenants, as
tenants only, under any leases, mechanic's liens, easements or claims of
easements not of record, and taxes and assessments not shown by the public
records, shall be eliminated), in an amount to be determined by Buyer, insuring
marketable fee simple title to the owned Real Property in Buyer and valid
leasehold interest of the Buyer in the leased Real Property upon recording of
the deeds or assignments, subject only to those matters not disapproved by Buyer
(pursuant to subsection "(c)" below) and no other matters, and (ii) complete and
legible copies of all exception documents (the "Exception Documents") listed in
-------------------
the Title Commitment. All liens and encumbrances securing the payment of money
other than the current year's ad valorem taxes (the "Monetary Liens") shall be
--------------
removed by Sellers at or before the Closing. The Title Policy shall provide (i)
full coverage against mechanics' or materialmen's liens, (ii) an access
endorsement, (iii) survey endorsement insuring that the land described in the
Title Policy is the same land as the land described and depicted in the Survey,
(iv) tax lot endorsement affirmatively insuring that the Land consists of one or
more separate tax lots and is assessed separately from all other property, (v) a
3.1 zoning endorsement including parking; and (vi) such other coverages and
endorsements as reasonably shall be required by Buyer.
(c) If a Survey or Title Commitment, as initially issued or as redated
to the Closing Date, shall disclose title exceptions, or if any title matter is
otherwise unacceptable to Buyer (those disapproved title matters as so
identified by Buyer are hereinafter called the "Disapproved Matters"), Buyer
-------------------
shall provide Sellers written notice of same within ten (10) days after Buyer's
receipt of the last of the Survey, the Title Commitment and the Exception
Documents with respect to each Real Property, and Sellers shall then have the
right, but not the obligation, at Sellers' sole cost and expense, for a period
of ten (10) business days after such Seller receives written notice from Buyer
of Buyer's objections to title to cure any defects or objectionable matters. In
the event that Sellers fail or are unwilling to cure such defects to the
reasonable satisfaction of Buyer's counsel, the Disapproved Matters will be
considered inaccuracies of representations and warranties under Section 5.29 of
------------
this Agreement. Notwithstanding the foregoing, Sellers shall in all events, at
Sellers' sole cost and expense, remove all Monetary Liens on or before the
Closing.
(d) Buyer shall use commercially reasonable efforts to satisfy the
conditions set forth in subsections (a), (b) and (c) of this Section 7.8 as soon
-----------
as reasonably practicable and shall notify Sellers, Holdings and Alltrista of
the status of their efforts periodically and upon request. Two (2) days prior to
Closing, Buyer will notify Sellers, Holdings and Alltrista of those Surveys and
Title Commitments yet to be received under subsections (a) and (b) above, and
those Disapproved Matters as to which Sellers, Holdings and Alltrista have not,
as of that date, had ten (10) days to cure. Notwithstanding subsection (c)
above, matters that would be reflected in the missing Surveys or Title
Commitments, and the pending Disapproved Matters, will not be considered
inaccuracies of representations and warranties under Section 5.29 of this
------------
Agreement for purposes of Closing Conditions in Section 8.1 of this Agreement,
-----------
but shall remain eligible for consideration as inaccuracies of representations
and warranties for purposes of indemnification under Article X of this
---------
Agreement.
Section 7.9 Title to Intellectual Property. Sellers, Holdings and
------------------------------
Alltrista will make all commercially reasonable efforts to assist Buyer in
correcting any chain-of-title defects in the
28
Intellectual Property acquired under this Agreement. Sellers, Holdings and
Alltrista will provide all documentation they possess supporting their
assignment or ownership of such Intellectual Property, any evidence they possess
that verifies chain-of-title and any contact information that will assist Buyer
in establishing chain-of-title. Sellers, Holdings and Alltrista will make
appropriate officers available to Buyer to assist Buyer in verifying
chain-of-title with third parties. Sellers, Holdings and Alltrista will use
commercially reasonable legal means to secure the cooperation of third parties
in order to correct any chain-of-title defects in the Intellectual Property.
Section 7.10 No Solicitation. From the date hereof until the Closing
---------------
Date or the date this Agreement is terminated pursuant to Article XI, Alltrista,
----------
Holdings and Sellers shall not, and shall ensure that each of their directors,
officers, representatives and agents shall not, solicit or entertain offers
from, negotiate with, or enter into any agreement with, any third party relating
to the acquisition of any of the Assets, in whole or in part other than
dispositions of Inventory in the ordinary course of business.
Section 7.11 Confidentiality.
---------------
(a) Prior to Closing, each of the parties hereto agrees that it will
not use, or permit the use of, any Confidential Information of the other party
in a manner or for a purpose known by the using party to be detrimental to such
other party or otherwise than in connection with this Agreement, and that they
will not disclose, divulge, provide or make accessible (collectively, "Disclose"
--------
or "Disclosure"), or permit the Disclosure of, any of the Confidential
----------
Information to any person or entity, other than their respective directors,
officers, employees, investment advisors, lenders, accountants, counsel and
other authorized representatives and agents (who shall be bound by this Section
-------
7.11), except as may be required by judicial or administrative process or, in
- ----
the opinion of such party's counsel, by other requirements of law. The
restrictions of this Section 7.11(a) shall not apply to any Confidential
---------------
Information relating to a party which the party disclosing such information can
show: (i) to have been in its possession prior to its receipt from another party
hereto; (ii) to be now or to later become generally available to the public
through no fault of the disclosing party; (iii) to have been available to the
public at the time of its receipt by the disclosing party; (iv) to have been
received separately by the disclosing party in an unrestricted manner from a
person entitled to disclose such information; or (v) to have been developed
independently by the disclosing party without regard to any information received
in connection with this transaction. Each party hereto also agrees to promptly
return to the party from whom it originally received such information all
original and duplicate copies of written materials containing Confidential
Information if this Agreement is terminated. A party hereto shall be deemed to
have satisfied its obligations to hold the Confidential Information confidential
if it exercises the same care as it takes with respect to its own similar
information.
(b) From and after the Closing Date and until the second anniversary of
the Closing, Sellers, Holdings, Alltrista and all of their affiliates will
maintain in secrecy all Confidential Information, using the same safeguards as
they customarily use to protect confidential information of a similar character,
but at least using reasonable care, and shall not Disclose, or permit the
Disclosure of, any Confidential Information to a third party without the express
written consent of Buyer, except as may be required by judicial or
administrative process or, in the opinion of such party's counsel, by other
requirements of law; provided, however, that in the
-------- -------
29
case of required disclosure, either of the Sellers, Holdings or Alltrista
has given notice to Buyer of any such requirement and cooperates with Buyer if
it elects to pursue legal means to contest and avoid the disclosure. The
restrictions set forth in this Section 7.11(b) shall not apply to Confidential
---------------
Information that is publicly available or otherwise in the public domain due to
no fault of Sellers, Holdings, Alltrista or any of their affiliates.
Section 7.12 Covenant Not to Compete.
-----------------------
(a) Each Seller, Holdings and Alltrista hereby agree that for a period of five
years after the Closing Date, they will not, directly or indirectly, as a
partner, joint venturer, employer, consultant, shareholder, manager, principal,
agent, affiliate, or otherwise, own, manage, operate, join, control or
participate in the ownership, management, operation or control of any business,
whether in corporate, limited liability company or partnership form or
otherwise, which engages in any portion of the Business (including, but not
limited to, the manufacturing, distribution or sale of thermoformed products) or
is substantially similar to the Business as carried on at the time of this
Agreement or at Closing in any geographic area in which, or to those customers
to which, the Business has sold its products within the two years prior to the
Closing Date; provided, however, that Sellers, Holdings and Alltrista may
-------- -------
continue to own, operate, sell or otherwise dispose of the Excluded Assets. The
parties hereto specifically acknowledge and agree that a remedy at law for any
breach of the foregoing will be inadequate and that Buyer, in addition to any
other relief available to it, shall be entitled to temporary and permanent
injunctive relief without the necessity of proving actual damage; provided,
--------
however, that nothing herein shall be construed to prevent each Sellers,
- -------
Holdings and Alltrista from holding collectively not more than two percent of
the shares in any company whose shares are quoted on any stock exchange, even
though that company carries on the activities conducted by the Business.
(b) For a period of 24 months after the Closing Date, Sellers, Holdings
and Alltrista shall not, directly or indirectly, as an entity, individually or
on behalf of any other individual, corporation, partnership, firm, other
company, business organization, or entity, or in any other capacity, solicit for
employment, endeavor to entice away from the Buyer or otherwise interfere with
the relationship of Buyer with any person who was employed or otherwise engaged
to perform services for the Buyer or any of the Transferred Employees.
Furthermore, for a period of 24 months after the Closing Date, Buyer shall not,
directly or indirectly, as an entity, individually or on behalf of any other
individual, corporation, partnership, firm, other company, business
organization, or entity, or in any other capacity, solicit for employment,
endeavor to entice away from the Sellers or Alltrista, or otherwise interfere
with the relationship of the Sellers or Alltrista with any person who was
employed or otherwise engaged to perform services for the Sellers or Alltrista
on the Closing Date.
(c) Buyer hereby agrees that for a period of five years after the
Closing Date, it will not, directly or indirectly, as a partner, joint venturer,
employer, consultant, shareholder, manager, principal, agent, or otherwise, own,
manage, operate, join, control or participate in the ownership, management,
operation or control of any business, whether in corporate, limited liability
company or partnership form or otherwise, which produces or sells to Whirlpool
or General Electric any of the parts listed on Schedule 7.12, or any
` -------------
modifications, improvements or derivations thereof. The parties hereto
specifically acknowledge and agree that a remedy at law for any breach of the
foregoing will be inadequate and that Alltrista and Sellers, in addition to
30
any other relief available to them, shall be entitled to temporary and
permanent injunctive relief without the necessity of proving actual damage;
provided, however, that nothing herein shall be construed to prevent Buyer from
- -------- -------
holding collectively not more than two percent of the shares in any company
whose shares are quoted on any stock exchange, even though that company produces
or sells the listed parts to Whirlpool or General Electric.
(d) Each Seller, Holdings and Alltrista acknowledge and agree that in view
of the nature of the Business and the Assets and the business objectives of
Buyer in acquiring them and the consideration paid to Sellers, Holdings and
Alltrista therefor, the territorial and time limitations contained in this
Section 7.12 are reasonable and properly required for the adequate protection of
- ------------
Buyer. The parties intend for the covenants of this Section 7.12 to be
------------
enforceable to the maximum extent permitted by law, and if any reviewing court
deems any of such covenants to be unenforceable or invalid, the parties
authorize such court to (i) reform the unenforceable or invalid provisions and
to impose such restrictions as reformed and (ii) enforce the remaining
provisions that it deems reasonable.
Section 7.13 Notification.
------------
(a) Between the date of this Agreement and the Closing, Sellers, Holdings
and Alltrista shall promptly notify Buyer in writing if any of them becomes
aware of (i) any fact or condition that causes or constitutes a breach of any of
their representations and warranties made as of the date of this Agreement; (ii)
the occurrence after the date of this Agreement of any fact or condition that
would or be reasonably likely to (except as expressly contemplated by this
Agreement) cause or constitute a breach of any such representation or warranty
had that representation or warranty been made as of the time of the occurrence
of, either Seller's, Holdings' or Alltrista's discovery of, such fact or
condition or (iii) the breach of any representation and warranty made by Buyer.
Should any such fact or condition require any change to the Schedules, Sellers
shall promptly deliver to Buyer a supplement to the relevant Schedule(s)
specifying such changes. Such delivery shall not affect any rights of Buyer
under Article IX, Article X and Article XI. During the same period, Sellers,
---------- --------- ----------
Holdings and Alltrista also shall promptly notify Buyer of the occurrence of any
breach of any covenant of Sellers, Holdings or Alltrista in this Article VII or
-----------
of the occurrence of any event that may make the satisfaction of the conditions
in Article VIII impossible or unlikely.
------------
(b) Between the date of this Agreement and the Closing, Buyer shall
promptly notify Sellers in writing if it becomes aware of (i) any fact or
condition that causes or constitutes a breach of any of its representations and
warranties made as of the date of this Agreement; (ii) the occurrence after the
date of this Agreement of any fact or condition that would or be reasonably
likely to (except as expressly contemplated by this Agreement) cause or
constitute a breach of any such representation or warranty had that
representation or warranty been made as of the time of the occurrence of its
discovery of such fact or condition or (iii) the breach of any representation
and warranty made by Sellers, Holdings or Alltrista. During the same period,
Buyer shall promptly notify Sellers of the occurrence of any breach of any
covenant of Buyer in this Article VII or of the occurrence of any event that may
-----------
make the satisfaction of the conditions in Article VIII impossible or unlikely.
------------
31
Section 7.14 Certain Intellectual Property Undertakings. The parties hereto
------------------------------------------
agree to certain undertakings involving Intellectual Property as set forth in
Exhibit 7.14 hereto.
- ------------
ARTICLE VIII
CONDITIONS TO CLOSING
Section 8.1 Buyer's Conditions to Closing. The obligations of Buyer under
-----------------------------
this Agreement are subject to the satisfaction of the following conditions as of
the Closing Date, any or all of which conditions may be waived by Buyer in
writing in its sole discretion:
(a) All of Sellers', Holdings' and Alltrista's representations and
warranties in this Agreement (considered collectively), and each of these
representations and warranties (considered individually), shall have been
accurate in all material respects as of the date of this Agreement, and shall be
accurate in all material respects as of the time of the Closing as if then made,
without giving effect to any update to the Schedules and each of the
representations and warranties in this Agreement that contains an express
materiality qualification shall have been accurate in all respects as of the
date of this Agreement, and shall be accurate in all respects as of the time of
the Closing as if then made, without giving effect to any update to the
Schedules, except for inaccuracies that in the aggregate will, or could
reasonably be expected to, result in an adverse financial impact (including but
not limited to claims, losses, obligations, expenses, costs incurred, and lost
margin and costs likely to be incurred over the next twelve (12) months,
obligations or liabilities) to Buyer in an amount greater than One Million Five
Hundred Thousand Dollars ($1,500,000). Sellers, Holdings and Alltrista shall
have performed and complied in all material respects with all agreements,
covenants and conditions required by this Agreement to be performed and complied
with by them at or prior to the Closing Date, and Alltrista, Holdings and
Sellers shall have delivered to Buyer a true and accurate certificate of their
corporate officers dated the Closing Date certifying to such compliance and
completion.
(b) Buyer shall have received with respect to each of the Sellers, Holdings
and Alltrista, a good standing certificate dated within ten (10) days of the
Closing Date from their respective states of incorporation and every
jurisdiction in which they are respectively required to qualify for business.
(c) Buyer shall have received all Closing Approvals in form and substance
reasonably satisfactory to Buyer.
(d) Each Seller, Holdings and Alltrista shall have executed and delivered a
bill of sale and deeds conveying the Assets and Intellectual Property to Buyer
in form satisfactory to Buyer and its counsel in their reasonable judgment and
any other instrument required by Section 2.3 including assignments of contracts
-----------
and leases free and clear of all encumbrances other than Permitted Liens, the
Assumed Liabilities and other encumbrances noted in the Schedules and Exhibits
hereto.
(e) Sellers, Holdings or Alltrista shall have executed and delivered
certificates of title and assignments thereof for all motor vehicles transferred
to Buyer as part of the Assets.
32
(f) Sellers, Holdings and Alltrista shall have delivered a list of the
Inventory, Accounts Receivable and fixed assets as of the close of business on a
date as close as practicable to the Closing Date.
(g) No temporary restraining order, preliminary or permanent injunction, or
cease and desist order, issued by any court or governmental authority preventing
the transfers contemplated hereby or the consummation of the Closing, shall be
in effect at the Closing Date, and no proceeding by any court or governmental
authority seeking to restrict or prohibit the consummation of the Closing shall
be pending on the Closing Date.
(h) Since the date of this Agreement, there shall have been no change,
occurrence or circumstance in the operations, properties, condition (financial
or otherwise) or the results of operations of the Business or the Assets having
or reasonably expected to have, individually or in the aggregate, an adverse
financial impact (including but not limited to claims, losses, obligations,
expenses, costs incurred, and lost margin and costs likely to be incurred over
the next twelve (12) months, obligations or liabilities) to Buyer in an amount
greater than One Million Five Hundred Thousand Dollars ($1,500,000).
Specifically excluded are changes in conditions affecting the plastic
thermoforming industry, the United States economy generally, an outbreak of
hostilities or additional terrorist attacks not affecting the Buyer or the
Business directly, trade embargoes, the closing of United States securities
exchanges, or other similar developments which do not disproportionately affect
the Business.
(i) Buyer shall have received a certificate of the Secretary of each
Seller, Holdings and Alltrista with respect to the resolutions respectively
adopted by each Seller, Holdings and Alltrista approving this Agreement and the
transactions contemplated hereby, each of which shall be reasonably acceptable
to Buyer.
(j) Buyer shall have received the opinion of Ice Miller dated the Closing
Date, in the form set forth in Exhibit 8.1(j).
--------------
(k) Pro Forma versions of the Title Policies shall have been issued to
Buyer with respect to the owned and leased Real Property, and Sellers, Holdings
and Alltrista shall have fully paid one-half of the premiums for such Title
Policies.
(l) Buyer shall have been given the opportunity to meet with the Customers
of the Business identified on Schedule 8.1(l), and, during such discussions, no
---------------
Customer shall have indicated to Buyer that it has changed its business
relationship with the Business in any material respect since August 31, 2001 or
that it has decided to change its business relationship with the Business in any
material respect or that it has decided not to do business with Buyer
substantially as such Customer currently does business with Sellers, Holdings or
Alltrista, as the case may be. No such discussions shall take place without a
representative of Alltrista present.
Section 8.2 Sellers', Holdings' and Alltrista's Conditions to Closing. The
---------------------------------------------------------
obligations of Sellers, Holdings and Alltrista under this Agreement are subject
to the satisfaction of the following conditions as of the Closing Date, any or
all of which may be waived by either Seller, Holdings or Alltrista in its sole
discretion:
33
(a) All of Buyer's representations and warranties in this Agreement
(considered collectively), and each of these representations and warranties
(considered individually), shall have been accurate in all material respects as
of the date of this Agreement and shall be accurate in all material respects as
of the time of the Closing as if then made. Buyer shall have performed and
complied with all agreements, covenants, and conditions required by this
Agreement to be performed or complied with by it at or prior to the Closing
Date, and Buyer shall have delivered to Sellers a certificate of an officer
dated the Closing Date certifying to such compliance and completion.
(b) Sellers shall have received payment of the Purchase Price and an
executed promissory note in the form attached hereto as Exhibit 3.1(a).
--------------
(c) Sellers shall have received with respect to Buyer a good standing
certificate dated within ten (10) days of the Closing Date from Buyer's state of
incorporation.
(d) Sellers shall have received the Closing Approvals all in form and
substance reasonably satisfactory to Sellers.
(e) No temporary restraining order, preliminary or permanent injunction, or
cease and desist order, issued by any court or governmental authority preventing
the transfers contemplated hereby or the consummation of the Closing, shall be
in effect at the Closing Date, and no proceeding by any court or governmental
authority seeking to restrict or prohibit the consummation of the Closing shall
be pending on the Closing Date.
(f) Sellers shall have received a certificate of the Secretary of Buyer
with respect to the resolutions adopted by Buyer approving this Agreement and
the transactions contemplated hereby.
(g) Sellers, Alltrista and Holdings shall have received the opinion of
counsel to Buyer, dated at the Closing Date, in the form set forth in Exhibit
-------
8.2(g) attached hereto.
- ------
(h) The parties shall have entered into the Assumption Agreement in the
form attached as Exhibit 3.1(b).
--------------
ARTICLE IX
DISPUTE RESOLUTION
Section 9.1 Initial Meeting. In the event that there is a dispute arising
---------------
out of or relating to this Agreement the parties shall attempt in good faith to
resolve such disputes promptly by negotiation between the parties. Any party may
give the other parties written notice that a dispute exists (a "Notice of
---------
Dispute"). The Notice of Dispute shall include a statement of such party's
- -------
position. Within ten (10) days of the delivery of the Notice of Dispute, the
parties shall meet at a mutually acceptable time and place, and thereafter as
long as they reasonably deem necessary, to attempt to resolve the dispute. All
documents and other information or data on which each party relies concerning
the dispute shall be furnished or made available on reasonable terms to the
other party at or before the first meeting of the parties as provided by this
Section 9.1.
- -----------
34
Section 9.2 Mediation. If the dispute has not been resolved by negotiation
---------
within thirty (30) days of the delivery of a Notice of Dispute, or if the
parties have failed to meet within ten (10) days of the Notice of Dispute, the
parties shall endeavor to settle the dispute by mediation under the then current
CPR Model Mediation Procedure for Business Disputes. The parties shall select a
mediator from the Chicago office of JAMS, the Resolution Experts. Expenses of
mediation shall be divided equally between Sellers and Buyer.
Section 9.3 Binding Arbitration. Any controversy or claim arising out of or
-------------------
relating to this Agreement or any agreement or document in connection therewith,
the breach, termination or validity thereof, or the transactions contemplated
herein (including any question arising as to whether or not any dispute falls
within the terms of this Section or the selection of arbitrators) if not settled
by negotiation or mediation as provided in Section 9.1 and Section 9.2 shall be
----------- -----------
settled by arbitration in Chicago, Illinois, in accordance with the rules of the
American Arbitration Association. Any party may initiate arbitration from and
after 60 days following the delivery of a Notice of Dispute if the dispute has
not then been settled by negotiation or mediation. Except as otherwise provided
herein, the arbitration procedure shall be governed by the United States
Arbitration Act, 9 U.S.C.(S) 1-16, and the award rendered by the arbitrators
shall be final and binding on the parties and may be entered in any court having
jurisdiction thereof.
The arbitrator shall be bound to follow the laws of the State of Delaware
and the Federal laws of the United States of America. The arbitrators may not
award damages in excess of compensatory damages.
Section 9.4 Expeditious Proceedings. It is the intent of the parties that
-----------------------
any arbitration shall be concluded as quickly as reasonably practicable. The
arbitrators shall use all reasonable efforts to issue the final award or awards
within a period of five (5) business days after closure of the proceedings.
Failure of the arbitrators to meet the time limits of this Section 9.4 shall not
-----------
be a basis for challenging the award.
Section 9.5 Attorneys' Fees. Sellers, Holdings, Alltrista and Buyer shall
---------------
bear their own attorneys' fees and costs for arbitration and mediation and
Sellers, Holdings and Alltrista, on the one hand, and Buyer, on the other hand,
shall pay one-half of the fees and expenses of the arbitrators and mediator.
Provided, however, that the arbitrators may instruct the non-prevailing party to
- -------- -------
pay all or any appropriate portion of the costs of the proceedings, including
the fees and expenses of the arbitrators and the reasonable attorneys' fees and
expenses of the prevailing party, upon the determination that a claim or defense
asserted by the non-prevailing party had no reasonable basis in law or fact.
Section 9.6 Enforcement of Awards. Each party agrees that any legal
---------------------
proceeding instituted to enforce an arbitration award hereunder may be brought
in a court of competent jurisdiction (either state or federal).
Section 9.7 Equitable Relief. Nothing herein shall be construed to prevent
----------------
any party from seeking equitable relief in any court of competent jurisdiction
to restrain or prohibit any breach or threatened breach of any covenant of the
parties set forth in this Agreement, whether or not the parties have first
sought to resolve the dispute through negotiation, mediation or arbitration
pursuant to this Article IX.
----------
35
ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnification by Sellers, Holdings and Alltrista. Sellers,
--------------------------------------------------
Holdings and Alltrista covenant and agree with Buyer that they shall jointly and
severally indemnify Buyer and its directors and officers, and their successors,
assigns and legal representatives ("Section 10.1 Indemnified Parties") and hold
--------------------------------
them harmless from, against and in respect of any and all costs, losses, claims,
contribution claims, liabilities, fines, penalties, damages and expenses
(including court or alternative dispute resolution costs and reasonable fees and
disbursements of counsel) (hereinafter referred to as "Claims") arising out of
------
or with respect to:
(a) any liabilities or obligations of Sellers, Holdings or Alltrista not
expressly assumed by Buyer hereunder, including, without limitation, any and all
liability of either of the Sellers, Holdings or Alltrista arising under any
Environmental Law relating to: (i) any Release or alleged Release of a Hazardous
Substance that occurred prior to Closing, or (ii) any violation or alleged
violation of any Environmental Law that occurred prior to Closing;
(b) any liabilities or obligations related to the Assets, the Intellectual
Property or the Business not expressly assumed by Buyer hereunder, including,
without limitation, (i) any liability to a third party for incidents, events or
occurrences arising on or prior to the Closing Date, and (ii) any noncompliance
with any Bulk Sales Laws or fraudulent transfer law in respect of the
transactions contemplated by this Agreement;
(c) any tax liability of Sellers, Holdings or Alltrista (including, without
limitation, liabilities for taxes, interest, penalties, governmental charges,
duties, fees, and fines imposed by the United States, foreign countries, states,
counties, municipalities, and subdivisions, and by all other governmental
entities or taxing authorities), except to the extent that such tax is expressly
assumed by Buyer hereunder;
(d) any breach of any representation or warranty made by Sellers, Holdings
or Alltrista in (i) this Agreement (without giving effect to any supplement to
the Schedules), (ii) the Schedules, (iii) the supplements to the Schedules, (iv)
the certificates delivered pursuant to Section 8.1(a) (for this purpose, each
--------------
such certificate will be deemed to have stated that the representations and
warranties of Sellers, Holdings and Alltrista in this Agreement fulfill the
requirements of Section 8.1(a) as of the Closing Date as if made on the Closing
--------------
Date without giving effect to any supplement to the Schedules, unless the
certificate expressly states that the matters disclosed in a supplement have
caused a condition specified in Section 8.1(a) not to be satisfied), (v) any
--------------
Asset transfer instrument or (vi) any other certificate, delivered by Sellers,
Holdings or Alltrista pursuant to this Agreement;
(e) any breach of any covenant or obligation of Sellers, Holdings or
Alltrista in this Agreement or in any other certificate delivered by Sellers,
Holdings or Alltrista pursuant to this Agreement; and
(f) any finder's fee or type of commission in relation to or in connection
with the transactions contemplated by this Agreement as a result of any
agreement or understanding of Sellers, Holdings or Alltrista.
36
(g) any defect in title of the Intellectual Property acquired under this
Agreement, including patents, trademarks, servicemarks and copyrights and the
cost of correcting title with the United States Patent and Trademark Office, the
United States Copyright Office or any foreign Patent, Trademark, or Copyright
Office. Sellers, Holdings and Alltrista will reimburse Buyer for all costs of
defending title against third parties, for obtaining cooperation from third
parties necessary to establish chain of title and enforcing assignment of title
from a third party to Sellers, Holdings or Alltrista.
Section 10.2 Indemnification by Buyer. Buyer hereby covenants and agrees
------------------------
with Sellers, Alltrista and Holdings that it shall indemnify Sellers, Holdings
and Alltrista and each of Sellers', Holdings' and Alltrista's directors,
officers, and successors, heirs and legal representatives ("Section 10.2
------------
Indemnified Parties"), and hold them harmless from, against and in respect of
- -------------------
any and all Claims, arising out of or with respect to:
(a) the operation of the Business or ownership of the Assets by Buyer or
its successors, assigns or transferees after the Closing Date, except for any
and all liability of either Seller, Holdings or Alltrista arising under any
Environmental Law relating to: (i) any Release or alleged Release of a Hazardous
Substance that occurred prior to Closing, or (ii) any violation or alleged
violation of any Environmental Law that occurred prior to Closing;
(b) the discharge or performance by Buyer after the Closing Date of the
Assumed Liabilities; and
(c) any breach or nonfulfillment of any of the representations, warranties,
covenants or agreements made by Buyer in this Agreement or in any other
certificate executed and delivered by Buyer pursuant hereto.
Section 10.3 Limits.
------
(a) No Claim for indemnification may be made by any party hereto until the
total of all Claims by such party exceeds One Million Five Hundred Thousand
Dollars ($1,500,000) and then only for the amount by which such Claims exceed
One Million Five Hundred Thousand Dollars ($1,500,000) (the "Basket"). However,
------
this Section 10.3 will not apply to any failure to pay Assumed Liabilities,
------------
breaches of Section 5.15, costs incurred by Buyer due to the environmental
------------
condition of the Assets as of Closing, to any breach of any of either party's
representations and warranties of which either the party had Knowledge at any
time prior to the date on which such representation and warranty is made or any
intentional breach of any covenant or obligation.
(b) The aggregate Claims indemnified against shall not exceed the Purchase
Price.
(c) No Claim for indemnification shall be made (i) by either party for
indirect, special, consequential or punitive damages or (ii) with respect to any
matter set forth in Section 12.2, beyond the time period set forth in such
------------
Section.
(d) If Buyer has one or more Claims in excess of the Basket, it may provide
Sellers, Holdings and Alltrista with a written notice to such effect and stating
that it intends to offset such Claim(s) against the unpaid principal under the
Promissory Note (which notice may be the same
37
notice as that described in Section 10.4(a)). Upon receipt of such a notice,
----------------
Sellers, Holdings and Alltrista shall have fifteen (15) days to send Buyer a
Notice of Dispute. If a Notice of Dispute is sent pursuant to this section, such
dispute shall be resolved pursuant to the procedures set forth in Article IX
----------
hereof. If the maturity date of the Promissory Note occurs prior to the final
determination of the Claim dispute, such Claims may not be offset against the
principal amount of the Promissory Note. If no Notice of Dispute is sent
pursuant to this section, the Claim(s) set forth in the Notice of Dispute shall
be deemed accurate and Buyer shall be entitled to offset the amount of such
Claim(s) against the principal amount of the Promissory Note.
Section 10.4 Procedure.
---------
(a) Promptly (and in any event within thirty (30) days after the service of
any citation or summons) after acquiring knowledge of any Claim for which one of
the parties hereto (the "Indemnified Party") may seek indemnification against
-----------------
another party (the "Indemnifying Party") pursuant to Section 10.1 or 10.2 of
------------------ ------------ ----
this Article X, the Indemnified Party shall given written notice thereof to the
---------
Indemnifying Party. Failure to provide notice shall not relieve the Indemnifying
Party of its obligations under this Article X except to the extent that the
---------
Indemnifying Party demonstrates actual damage caused by that failure. The
Indemnifying Party shall have the right to assume the defense of any Claim with
counsel reasonably acceptable to the Indemnified Party upon delivery of notice
to that effect to the Indemnified Party. If the Indemnifying Party, after
written notice from the Indemnified Party, fails to take timely action to defend
the action resulting from the Claim, the Indemnified Party shall have the right
to defend the action resulting from the Claim by counsel of its own choosing,
but at the cost and expense of the Indemnifying Party. The Indemnified Party
shall have the right to settle or compromise any Claims against it, and, as the
case may be, recover from the Indemnifying Party any amount paid in settlement
or compromise thereof, if it has given written notice thereof to the
Indemnifying Party and the Indemnifying Party has failed to take timely action
to defend the same. The Indemnifying Party shall have the right to settle or
compromise any claim against the Indemnified Party without the consent of the
Indemnified Party provided that the terms of the settlement or compromise
provide for the unconditional release of the Indemnified Party and require the
payment of monetary damages only.
(b) Upon its receipt of any amount paid by the Indemnifying Party pursuant
to this Article X, the Indemnified Party shall deliver to the Indemnifying Party
---------
such documents as it may reasonably request assigning to the Indemnifying Party
any and all rights, to the extent indemnified, that the Indemnified Party may
have against third parties with respect to the Claim for which indemnification
is being received.
Section 10.5 Insurance and Taxes. Any claim for indemnification hereunder
-------------------
shall be reduced by any insurance payment to be received by the party claiming
indemnification and any tax benefit to be realized by such indemnity with
respect to the matter for which indemnification is sought.
Section 10.6 Exclusive Remedy. The indemnification set forth in this
----------------
Article X shall be the sole and exclusive remedy of the parties against the
- ---------
other for breach of the representations, warranties and covenants (other than
non-performance) of this Agreement and
38
any agreement or document executed in connection herewith, except for claims
arising from fraud.
Section 10.7 Indemnification in Case of Strict Liability or Indemnitee
---------------------------------------------------------
Negligence. THE INDEMNIFICATION PROVISIONS IN THIS ARTICLE X SHALL BE
- ---------- ---------
ENFORCEABLE REGARDLESS OF WHETHER THE LIABILITY IS BASED UPON PAST, PRESENT OR
FUTURE ACTS, CLAIMS OR LEGAL REQUIREMENTS (INCLUDING ANY PAST, PRESENT OR FUTURE
BULK SALES LAW, ENVIRONMENTAL LAW, FRAUDULENT TRANSFER ACT, OCCUPATIONAL SAFETY
AND HEALTH LAW OR PRODUCTS LIABILITY OR OTHER LEGAL REQUIREMENT) AND REGARDLESS
OF WHETHER ANY PERSON (INCLUDING THE PERSON FROM WHOM INDEMNIFICATION IS SOUGHT)
ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE
OF THE PERSON SEEKING INDEMNIFICATION OR THE SOLE OR CONCURRENT STRICT LIABILITY
IMPOSED UPON THE PERSON SEEKING INDEMNIFICATION.
ARTICLE XI
TERMINATION
Section 11.1 Termination. Anything in this Agreement to the contrary
-----------
notwithstanding, this Agreement may be terminated and the transactions
contemplated herein abandoned:
(a) by the written consent of the parties hereto at any time prior to the
Closing;
(b) by Buyer in the event of a breach by Sellers, Holdings or Alltrista of
any material provision of this Agreement, which breach is not remedied within
ten (10) days after receipt of notice thereof;
(c) by Sellers, Holdings and Alltrista in the event of a breach by Buyer of
any material provision of this Agreement, which breach is not remedied within
ten (10) days after receipt of notice thereof;
(d) by Buyer, upon a breach of any representation, warranty, covenant or
agreement on the part of Sellers, Holdings or Alltrista set forth in this
Agreement, or if any representation or warranty of Sellers, Holdings or
Alltrista shall have become untrue, in either case such that the conditions set
forth in Section 8.1(a) would be incapable of being satisfied by the Drop Dead
--------------
Date; provided, however, that in any case, a willful breach shall be deemed to
-------- -------
cause such conditions to be incapable of being satisfied for purposes of this
Section 11.1(d);
- ---------------
(e) by Sellers, Holdings and Alltrista, upon a breach of any
representation, warranty, covenant or agreement on the part of Buyer set forth
in this Agreement, or if any representation or warranty of Buyer shall have
become untrue, in either case such that the conditions set forth in Section
8.2(a) would be incapable of being satisfied by the Drop Dead Date; provided,
however, that in any case, a willful breach shall be deemed to cause such
conditions to be incapable of being satisfied for purposes of this Section
11.1(e); and
39
(f) by any party if the Closing does not occur (other than through the
failure of the party seeking to terminate to comply fully with its obligations
under this Agreement) on or before November 30, 2001, or such later date as the
parties shall mutually agree upon in writing (the "Drop Dead Date").
--------------
Section 11.2 Effect of Termination. Each party's right of termination under
---------------------
Section 11.1 is in addition to any other rights it may have under this Agreement
- ------------
or otherwise, and the exercise of such right of termination will not be an
election of remedies. If this Agreement is terminated pursuant to Section 11.1,
------------
all obligations of the parties under this Agreement will terminate, except that
the obligations of the parties in Sections 11.2, 7.11(a) and 12.2 and Article IX
------------- ------- ---- ----------
will survive, provided, however, that, if this Agreement is terminated because
of a breach of this Agreement by the non-terminating party or because one or
more of the conditions to the terminating party's obligations under this
Agreement is not satisfied as a result of the non-terminating party's failure to
comply with its obligations under this Agreement, the terminating party's right
to pursue all legal remedies will survive such termination unimpaired.
Section 11.3 Risk of Loss. The Assumed Liabilities and the risk of loss to
------------
the Business and the Assets, and all liability with respect to injury and damage
occurring in connection therewith, shall remain with and be the sole
responsibility of Sellers, Holdings and Alltrista until the Effective Time of
the Closing.
ARTICLE XII
GENERAL
Section 12.1 WARN Act. The parties to this Agreement intend that the
--------
transactions contemplated by this Agreement will not result in an "employment
loss" within the meaning of the Worker Adjustment and Retraining Notification
Act of 1988, as amended ("WARN"); provided, however, that (a) Sellers, Holdings
---- -------- -------
and Alltrista shall retain all liability for compliance with all applicable
employee termination notice and similar laws if they apply to the transactions
contemplated by this Agreement, including all applicable requirements of WARN
and all similar state laws, to the extent such liability is the result of action
taken by Sellers, Holdings, Alltrista or their affiliates prior to the Closing
and (b) Buyer shall have liability for compliance with all applicable employee
termination notice and similar laws to the extent such liability is the result
of action taken by Buyer on or after the Closing.
Section 12.2 Expenses. Buyer, Sellers, Holdings and Alltrista shall pay
--------
their own respective expenses and the fees and expenses of their respective
counsel, accountants and other experts. Provided, however, that Sellers,
-------- -------
Holdings and Alltrista, on one hand, and Buyer, on the other hand, each agree to
pay one-half of the cost of title insurance premiums covering the Real Property,
and Buyer agrees to pay all of the costs associated with obtaining real estate
surveys, real estate title commitments and environmental surveys regarding the
Real Property.
Section 12.3 Survival of Representations and Warranties. The
------------------------------------------
representations and warranties in this Agreement and in any ancillary
certificate or document shall survive the Closing for a period of eighteen (18)
months, except the representations and warranties contained in Sections 5.2,
------------
5.4, 6.2 and 7.2, which shall survive indefinitely, Section 5.17, which shall
- --- --- --- ------------
40
survive for five years and Section 5.10, which shall survive for the applicable
------------
statute of limitation.
Section 12.4 Waivers. The waiver by any party hereto of a breach of any
-------
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach. The waiver by any party hereto at or before the Closing Date
of any condition to its obligations hereunder which is not fulfilled shall
preclude such party from seeking redress from the other party hereto for breach
of any representation, warranty, covenant or agreement contained in this
Agreement related to such waiver.
Section 12.5 Binding Effect; Benefits; Assignment. This Agreement shall
------------------------------------
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Except as otherwise set forth
herein, nothing in this Agreement, express or implied, is intended to confer on
any person other than the parties hereto or their respective successors and
permitted assigns any rights, remedies, obligations, or liabilities under or by
reason of this Agreement. No party may assign its rights hereunder without the
consent of the other party except to a subsidiary (but any such assignment of
rights shall not affect the assigning party's obligations under this Agreement)
or in connection with the sale of all or substantially all of such assigning
party's assets.
Section 12.6 Notices. All notices, consents, waivers and other
-------
communications required or permitted by this Agreement shall be in writing and
shall be deemed given to a party when (a) delivered to the appropriate address
by hand or by nationally recognized overnight courier service (costs prepaid);
(b) sent by facsimile or e-mail with confirmation by telephone of transmission
receipt; or (c) received or rejected by the addressee, if sent by certified
mail, return receipt requested, in each case to the following addresses,
facsimile numbers or e-mail addresses and marked to the attention of the person
(by name or title) designated below (or to such other address, facsimile number,
e-mail address or person as a party may designate by notice to the other
parties):
Sellers, Holdings and Alltrista:
Alltrista Corporation
555 Theodore Fremd Ave., Ste B302
Rye, New York 10580
Attention: Martin E. Franklin
Chairman and Chief Executive Officer
Fax no.: 914-967-9405
E-mail address: mfranklin@marlincap.com
with a mandatory copy to: ICE MILLER
One American Square
Box 82001
Indianapolis, Indiana 46282
Attention: Joseph E. DeGroff
Fax no.: 317-236-2219
E-mail address: degroff @icemiller.com
41
Buyer: Wilbert, Inc.
2913 Gardner Road
Broadview, Illinois 60155
Attention: Curtis J. Zamec
Chairman, President and CEO
Fax no.: 708-865-1646
E-mail address:cjzamec@wilbertinc.com
with a mandatory copy to: Blackwell Sanders Peper Martin LLP
2300 Main Street, Suite 1000
Kansas City, Missouri 64108
Attention: Gary D. Gilson
Fax no.: 816-983-8080
E-mail address: ggilson@bspmlaw.com
Section 12.7 Entire Agreement. This Agreement (including the Schedules and
----------------
Exhibits hereto) constitutes the entire agreement and supersedes all prior
agreements and understandings, oral and written, between the parties hereto with
respect to the subject matter hereof. No representations or warranties, express
or implied, are made with respect to the Business, Sellers, the Intellectual
Property or the Assets except as expressly set forth herein.
Section 12.8 Headings. The Section and other headings contained in this
--------
Agreement are for reference purposes only and shall not be deemed to be a part
of this Agreement or to affect the meaning or interpretation of this Agreement.
Section 12.9 Governing Law. This Agreement shall be construed as to both
-------------
validity and performance and enforced in accordance with and governed by the
laws of the State of Delaware without giving effect to the choice of law
principles thereof.
Section 12.10 Amendments. This Agreement may not be modified or changed
----------
except by an instrument or instruments in writing signed by the party against
whom enforcement of any such modification or amendment is sought.
Section 12.11 Severability. If any provision of this Agreement is held
------------
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable
Section 12.12 Press Releases. Neither of the Sellers, Alltrista or Holdings
--------------
on the one hand or Buyer on the other hand shall, without the prior approval of
the other party, issue any press release or written statement for general
circulation relating to the transactions contemplated hereby, except as required
by law or the regulation of any stock exchange (but each party shall still
endeavor to allow the other party reasonable opportunity to review and comment
to the extent feasible).
42
Section 12.13 Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original but all of which shall constitute one
and the same instrument. However, in making proof hereof it shall be necessary
to produce only one copy hereof signed by the party to be charged. Signature
pages delivered by facsimile to this Agreement or any document delivered in
connection herewith or at the Closing shall be binding to the same extent as an
original.
Section 12.14 Interpretation. Unless otherwise specifically provided
--------------
herein, whenever consent of a party is required for any action, such consent
shall not be unreasonably withheld, conditioned or delayed.
43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed in their respective names by an officer thereunto duly authorized on the
date first above written.
SELLERS: BUYER:
ALLTRISTA PLASTICS CORPORATION WILBERT, INC.
By: /s/ Martin E. Franklin By: /s/ Curtis J. Zamec
Martin E. Franklin, President Curtis J. Zamec, President and Chief
Executive Officer
TRIENDA CORPORATION
By: /s/ Martin E. Franklin
Martin E. Franklin, President
HOLDINGS:
QUOIN CORPORATION
By: /s/ Angela K. Knowlton
Angela K. Knowlton, Treasurer
ALLTRISTA:
ALLTRISTA CORPORATION
By: /s/ Martin E. Franklin
Martin E. Franklin, Chairman and
Chief Executive Officer
44
SCHEDULE 1.1(a)
A. Working Capital Formula.
For purposes of this Agreement, "Working Capital" shall be calculated
using the following formula:
Accounts Receivable
Less Allowance for Uncollectible Accounts
Plus Inventories - Finished Goods
Plus Inventories - WIP
Plus Inventories - Raw Materials
Less Allowance for Inventory obsolescence or valuation reserves
Less Accounts Payable
Less Assumed Salary & Benefits, etc.
Less Other Accrued Liabilities included in Assumed Liabilities
--------------------------------------------------------------
Equals Working Capital
The components of Working Capital shall be determined in accordance
with GAAP, consistent with past practice and in the ordinary course of business.
B. Initial Working Capital Calculation.
Petty Cash $ 3,483
Accounts Receivable, net 13,006,041
Inventory, net 15,412,557
Prepaid Expenses 189,448
Accounts Payable (4,929,956)
Accrued Salary & Benefits (2,616,236)
Other Accruals (835,067)
-------------- ------------
Initial Working Capital $20,230,270
45