EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
dated as of
May 9, 2003
by and among
TRIMAS CORPORATION,
METALDYNE CORPORATION
and
METALDYNE COMPANY LLC
TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions........................................................................1
ARTICLE II.
SALE AND PURCHASE OF ASSETS
SECTION 2.1. Sale and Purchase..................................................................6
SECTION 2.2. Allocation of Purchase Price.......................................................8
SECTION 2.3. Payment of Sales, Use and Other Taxes..............................................8
SECTION 2.4. Treatment of Restricted Stock Awards Held by Transferred Employees.................8
ARTICLE III.
CLOSING
SECTION 3.1. Time and Place.....................................................................9
SECTION 3.2. Deliveries at Closing..............................................................9
SECTION 3.3. Adjustment to Purchase Price......................................................10
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLERS
SECTION 4.1. Corporate Existence and Power.....................................................11
SECTION 4.2. Corporate Authorization...........................................................11
SECTION 4.3. Governmental Authorization........................................................11
SECTION 4.4. Non-Contravention.................................................................11
SECTION 4.5. Absence of Certain Changes........................................................12
SECTION 4.6. Compliance with Laws and Court Orders.............................................12
SECTION 4.7. Litigation........................................................................12
SECTION 4.8. Finders' Fee......................................................................12
SECTION 4.9. Employee Benefit Plans............................................................12
SECTION 4.10. Financial Statements..............................................................13
SECTION 4.11. No Liabilities....................................................................13
SECTION 4.12. Title to Assets...................................................................13
SECTION 4.13. Disclaimer of Other Representations and Warranties................................13
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BUYER
SECTION 5.1. Corporate Existence and Power.....................................................14
SECTION 5.2. Corporate Authorization...........................................................14
SECTION 5.3. Governmental Authorization........................................................14
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SECTION 5.4. Non-Contravention.................................................................14
SECTION 5.5. Finders' Fees.....................................................................14
ARTICLE VI.
COVENANTS OF THE SELLERS
SECTION 6.1. Conduct of the Acquired Business..................................................15
SECTION 6.2. Access to Information.............................................................15
SECTION 6.3. Reports...........................................................................15
SECTION 6.4. Consultation with Buyer...........................................................16
ARTICLE VII.
COVENANTS OF BUYER AND SELLERS
SECTION 7.1. Commercially Reasonable Efforts...................................................16
SECTION 7.2. Certain Filings...................................................................16
SECTION 7.3. Public Announcements..............................................................16
SECTION 7.4. Notices of Certain Events.........................................................16
SECTION 7.5. Confidentiality...................................................................17
SECTION 7.6. Plans.............................................................................17
SECTION 7.7. Information; Cooperation..........................................................21
SECTION 7.8. Further Assurances................................................................21
ARTICLE VIII.
CONDITIONS TO OBLIGATIONS OF EACH PARTY
SECTION 8.2. Conditions to the Obligations of Buyer............................................21
SECTION 8.3. Conditions to the Obligations of Sellers..........................................22
ARTICLE IX.
OBLIGATIONS AFTER CLOSING
SECTION 9.1. Indemnification...................................................................22
SECTION 9.2. Procedures........................................................................23
SECTION 9.3. Limitations on Indemnification....................................................23
ARTICLE X.
TERMINATION
SECTION 10.1. Termination.......................................................................24
SECTION 10.2. Effect of Termination.............................................................24
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. Notices...........................................................................24
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SECTION 11.2. Survival of Representations and Warranties........................................25
SECTION 11.3. Amendments; No Waivers............................................................25
SECTION 11.4. Expenses..........................................................................25
SECTION 11.5. Successors and Assigns............................................................25
SECTION 11.6. Governing Law.....................................................................26
SECTION 11.7. WAIVER OF JURY TRIAL..............................................................26
SECTION 11.8. Counterparts; Effectiveness.......................................................26
SECTION 11.9. Entire Agreement..................................................................26
SECTION 11.10. Captions..........................................................................26
SECTION 11.11. Severability......................................................................26
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EXHIBITS
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Exhibit A Form of Fittings Facility Sublease
Exhibit B Form of Trademark Assignment
Exhibit C Form of Bill of Sale
Exhibit D Form of Acknowledgment of Assumption of Liabilities
Exhibit E Form of Assignment and Assumption Agreement
SCHEDULES
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Schedule 1.1(a) - Assumed Contracts
Schedule 1.1(b) - Knowledge of Officers
Schedule 2.1(a) - Intellectual Property
Schedule 2.1(c) - Assumed Liabilities
Schedule 3.3(b) - Form of Preliminary Statement
Schedule 4.4 - Non-Contravention
Schedule 7.6(a) - Transferred Employees
Schedule 7.6(c) - Sellers' Savings Plans
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ASSET PURCHASE AGREEMENT
------------------------
ASSET PURCHASE AGREEMENT dated as of May 9, 2003 by and among
TriMas Corporation, a Delaware corporation ("BUYER"), Metaldyne Corporation
("METALDYNE"), a Delaware corporation and Metaldyne Company LLC, a Delaware
limited liability company ("METALDYNE LLC" and together with Metaldyne, the
"SELLERS").
W I T N E S S E T H:
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WHEREAS, Sellers currently own a line of business principally
relating to designing, developing and manufacturing specialty tube nuts,
fittings, spacers and hollow extruded components conducted at that certain plant
located at 12955 Inkster Road, Livonia, Michigan, 48150 (the "FITTINGS
FACILITY"), and more particularly described in the Fittings Facility Sublease
(the "ACQUIRED BUSINESS;" provided, that the term Acquired Business shall not
include any business conducted at such location prior to the date hereof,
including without limitation, the Peerless business which was closed in
September, 2000);
WHEREAS, Sellers desire to sell to Buyer and Buyer desires to
purchase from Sellers the Purchased Assets (as defined below) and assume from
Sellers the Assumed Liabilities (as defined below) on the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises herein made, and in consideration of the representations,
warranties and covenants herein contained, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. (a) The following terms, as
used herein, have the following meanings:
"ACKNOWLEDGEMENT OF ASSUMPTION OF LIABILITIES" means the
Acknowledgment of Assumption of Liabilities executed by Buyer substantially in
the form of Exhibit D hereto.
"ACQUIRED BUSINESS BALANCE SHEET" means the unaudited balance
sheet relating to the assets and liabilities of the Acquired Business as of
March 31, 2003, prepared in accordance with the Applicable Accounting
Principles.
"ACTION" means any action, claim, suit, arbitration, subpoena,
discovery request, proceeding or investigation by or before any court or grand
jury, any Governmental Authority or arbitration tribunal.
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under common control
with such Person including by management contract or similar instrument.
"APPLICABLE ACCOUNTING PRINCIPLES" means the stand-alone
accounting principles historically used by Sellers in preparing financial
statements for divisions or lines of business owned by Sellers applied on a
consistent basis.
"ASSUMED CONTRACTS" means the contracts set forth on Schedule
1.1(a) hereto.
"BENEFIT PLAN" means any Plan existing at the Effective Time
established or to which contributions have at any time been made by any Seller
on behalf of Employees or Former Employees, under which any Employee, Former
Employee, or any beneficiary thereof, is covered, is eligible for coverage or
has benefit rights in respect of service to any Seller.
"BILL OF SALE" means the Bill of Sale conveying certain assets
of the Acquired Business from the Sellers to the Buyer and its Affiliates, a
form of which is attached as Exhibit C.
"BOARD OF DIRECTORS" means the Board of Directors or members,
as the case may be, of Buyer or the applicable Seller as the case may be.
"BUSINESS DAY" means a day other than Saturday, Sunday or any
other day on which commercial banks in New York, New York are authorized or
required by law to close.
"BUYER FAIRNESS OPINION" means an opinion of Valuation
Research Corporation, as to the fairness, from a financial point of view, of the
consideration to be paid by Buyer and the financial terms of the documents
entered into in connection with the Transactions.
"CODE" means the Internal Revenue Code of 1986, as amended.
"EFFECTIVE TIME" means 11:59 p.m., Michigan time, on May 4,
2003.
"EMPLOYEES" means the employees of the Sellers that perform
services exclusively for the Acquired Business as of the Effective Time.
"ENTERPRISE VALUE" means $24,000,000.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA AFFILIATE" of any Person means any other Person that,
together with such Person, would be treated as a single employer under Section
414 of the Code.
"FITTINGS FACILITY SUBLEASE" means the sublease to be entered
into by Metaldyne LLC, as lessor, and Buyer or one of its Subsidiaries, as
lessee, on the Closing Date, in the form of Exhibit A hereto.
"FITTINGS FACILITY SUBLEASE OBLIGATIONS" means the net present
value (at a discount rate of 12%) of all scheduled future rental payments to be
made under the Fittings Facility Sublease, such amount being equal to
$1,292,000.
"FORMER EMPLOYEE" means (a) any person who was employed
exclusively in the Acquired Business whose employment by any Seller was
terminated on or before the Closing Date (whether by retirement or otherwise),
excluding persons who were employed by any Seller or one of its Subsidiaries
outside of the Acquired Business subsequent to such termination prior to the
Closing Date, and (b) an Employee who is on short-term medical disability as of
the Closing Date and who thereafter becomes eligible for long-term medical
disability.
"GOVERNMENTAL AUTHORITY" means any federal, state or local
government or any court, administrative agency or commission or other
governmental or regulatory agency, authority or official, whether domestic,
foreign or supranational.
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"GUARANTEE" means a direct or indirect guarantee (other than
by endorsement of negotiable instruments for collection) by any Person of any
indebtedness of any other Person and includes any obligation, direct or
indirect, contingent or otherwise, of such Person: (1) to purchase or pay (or
advance or supply funds for the purchase or payment of) indebtedness of such
other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise); or (2) entered into for purposes
of assuring in any other manner the obligee of such indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part). The amount of any Guarantee of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations in respect of
which such Guarantee is made and the maximum liability of such other Person for
any such contingent obligations in respect of which such Guarantee is made at
such date. "GUARANTEE," when used as a verb, and "GUARANTEED" have correlative
meanings.
"IRS" means the Internal Revenue Service.
"KNOWLEDGE" of the Sellers means the actual knowledge of the
senior employees and officers of the Sellers listed on Schedule 1.1(b) attached
hereto.
"LIABILITIES" means any and all indebtedness, liabilities or
obligations, whether accrued, fixed or contingent, mature or inchoate, known or
unknown, reflected on a balance sheet or otherwise, including, but not limited
to, those arising under any law, rule, regulation, Action, order, injunction or
consent decree of any Governmental Authority or any judgment of any court of any
kind or any award of any arbitrator of any kind, and those arising under any
contract, commitment or undertaking.
"LIEN" means, with respect to any property or asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind in
respect of such property or asset.
"LOSSES" means any and all damages, losses, deficiencies,
Liabilities, obligations, penalties, judgments, settlements, claims, payments,
fines, interest, costs and expenses (including, without limitation, the costs
and expenses of any and all Actions and demands, assessments, judgments,
settlements and compromises relating thereto and the reasonable costs and
expenses of attorneys', accountants', consultants' and other professionals' fees
and expenses incurred in the investigation or defense thereof or the enforcement
of rights hereunder), including direct and consequential damages, but excluding
punitive damages (other than punitive damages awarded to any third party against
an Indemnified Party).
"MATERIAL ADVERSE EFFECT" means either (i) a material adverse
effect on the condition (financial or otherwise), business or results of
operations of the Acquired Business or (ii) an effect which is materially
adverse to the ability of any Seller to consummate the Transactions; provided
that with respect to subclause (i) of this definition, any such effect resulting
or arising from (w) this Agreement or the Transactions or the announcement
thereof, (x) changes in circumstances or conditions affecting industrial
manufacturing companies in general, and not specifically relating to the
Acquired Business, (y) changes in general economic, regulatory or political
conditions or in financial markets in the United States or Europe or (z) changes
in generally accepted accounting principles shall not be considered a Material
Adverse Effect, and with respect to subclause (ii) of this definition, any such
effect resulting or arising from subclause (x), (y) or (z) above shall not be
considered a Material Adverse Effect.
"MULTIEMPLOYER PLAN" means a multiemployer plan within the
meaning of Section 4001(a)(3) of ERISA with respect to which any Seller has an
obligation to contribute on behalf of Employees or Former Employees or has or
could have withdrawal liability under Section 4201 of ERISA.
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"OFFICER'S CERTIFICATE" means a certificate signed by an
officer of Metaldyne or Buyer, as the case may be.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"PERSON" means an individual, corporation, partnership,
limited liability company, association, trust or other entity or organization,
including a Governmental Authority.
"PLAN" means any bonus, incentive compensation, deferred
compensation, pension, profit sharing, retirement, stock purchase, stock option,
stock ownership, stock appreciation rights, phantom stock, leave of absence,
layoff, vacation, day or dependent care, legal services, cafeteria, life,
health, accident, disability, workmen's compensation or other insurance,
severance, separation, other employee benefit, employment, consulting or change
of control agreement, plan, practice, policy or arrangement of any kind, whether
written or oral, or whether for the benefit of a single individual or more than
one individual, including, without limitation, any "employee benefit plan"
within the meaning of Section 3(3) of ERISA (whether or not subject thereto).
"PURCHASE PRICE" means an amount equal to the Enterprise Value
minus the Fittings Facility Lease Obligations.
"SELLER FAIRNESS OPINION" means an opinion of Klaris, Thomson
& Schroeder, Inc., as to the fairness, from a financial point of view, of the
consideration to be paid to Sellers and the financial terms of the documents
entered into in connection with the Transactions.
"SELLER SHAREHOLDER AGREEMENT" means the shareholders
agreement by and among MascoTech, Inc., Masco Corporation, Richard Manoogian,
certain of their respective affiliates and other co-investors party thereto,
dated as of November 28, 2000.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, association, limited liability company or other
organization, whether incorporated or unincorporated, of which the securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions with
respect to such corporation, partnership, association, limited liability company
or other organization are at any time directly or indirectly owned or controlled
by such Person or by any one or more of its Subsidiaries, or by such Person and
one or more of its Subsidiaries.
"TAX" or "TAXES" shall mean any and all taxes, charges, fees,
levies or other assessments, including income, gross receipts, excise, real or
personal property, sales, withholding, social security, retirement,
unemployment, occupation, use, goods and services, service use, license, value
added, capital, net worth, payroll, profits, franchise, transfer and recording
taxes, fees and charges, and any other taxes, assessments or similar charges
imposed by the IRS or any taxing authority (whether domestic or foreign
including any state, county, local or foreign government or any subdivision or
taxing agency thereof (including a United States possession)), whether computed
on a separate, consolidated, unitary, combined or any other basis; and such term
shall include any interest whether paid or received, fines, penalties or
additional amounts attributable to, or imposed upon, or with respect to, any
such taxes, charges, fees, levies or other assessments.
"TAX BENEFIT" means the amount of any refund, credit or
reduction in otherwise required Tax payments, including any interest receivable
thereon, actually realized, provided that, for these purposes, Tax items shall
be taken into account in accordance with the ordering principles of the Code or
other applicable law.
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"TRADEMARK ASSIGNMENT" means the trademark assignment
agreement to be entered into by Metaldyne, as assignor, and Buyer or one of its
Subsidiaries, as assignee, on the Closing Date, in the form of Exhibit B hereto.
"TRANSACTIONS" means the purchase and sale of the Purchased
Assets, the assumption by Buyer of the Assumed Liabilities, the entering into of
the Fittings Facility Sublease and each other transaction contemplated by this
Agreement.
Any reference in this Agreement to a statute shall be to such
statute as amended from time to time and to the rules and regulations
promulgated thereunder.
(b) Each of the following terms is defined herein in the
Section set forth opposite such term:
TERM SECTION
Acquired Business.......................................... Recitals
Actuary Firm............................................... 7.6
Assumed Liabilities........................................ 2.1
Buyer...................................................... Recitals
Buyer ABO.................................................. 7.6
Buyer Indemnified Parties.................................. 9.1
Buyer Representatives...................................... 7.2
Buyer Welfare Plans........................................ 7.6
Buyer's Pension Plan....................................... 7.6
Buyer's Trustee............................................ 7.6
Buyer's Union Plan......................................... 7.6
Closing.................................................... 3.1
Closing Date............................................... 3.1
End Date................................................... 10.1
Excluded Assets............................................ 2.1
Excluded Liabilities....................................... 2.1
Fittings Facility.......................................... Recitals
Indemnified Party.......................................... 9.2
Indemnifying Party......................................... 9.2
Independent Accountants.................................... 3.3
Net Working Capital........................................ 3.3
Plan Effective Date........................................ 7.6
Preliminary Statement...................................... 3.3
Purchased Assets........................................... 2.1
Purchase Price............................................. 3.2
Purchase Price Adjustment.................................. 3.3
Restricted Stock Awards.................................... 2.4
Sellers.................................................... Recitals
Seller Indemnified Parties................................. 9.1
Seller Representative...................................... 6.2
Sellers' Savings Plans..................................... 7.6
Sellers' Trustee........................................... 7.6
Seller Welfare Plans....................................... 7.6
Shares..................................................... Recitals
Transactions............................................... Recitals
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TERM SECTION
Transferred Employee....................................... 7.6
Union Agreement............................................ 7.6
Union Employees............................................ 7.6
Union Plan................................................. 7.6
ARTICLE II.
SALE AND PURCHASE OF ASSETS
SECTION 2.1. SALE AND PURCHASE. (a) Subject to the terms and
conditions of this Agreement, at the Closing, Sellers shall transfer and deliver
to Buyer or one or more designated Subsidiaries of Buyer, and Buyer or one or
more designated Subsidiaries of Buyer shall acquire and accept from Sellers,
effective as of the Effective Time, all of Sellers' and all of the Sellers'
Subsidiaries' rights, title and interest, in and to the following assets free
and clear of all Liens (collectively the "PURCHASED ASSETS"):
(i) All tangible personal property owned by the Sellers and
their Subsidiaries used primarily in the operation of the Acquired
Business, including all furniture, machinery, office furnishings, and
equipment at the Fittings Facility and all office and warehouse
supplies existing at the Fittings Facility at the Effective Time or
acquired thereafter;
(ii) All authorizations, permits and licenses used by Sellers
and Sellers' Subsidiaries primarily to operate the Acquired Business as
conducted at the Effective Time;
(iii) All rights of the Sellers and the Sellers' Subsidiaries
under the Assumed Contracts including any and all security and other
deposits, advance rents and any other payments made thereunder;
(iv) All guarantees and warranties relating to the Purchased
Assets and all rights of the Sellers and the Sellers' Subsidiaries
against vendors of tangible personal property and services to the
Acquired Business other than with respect to claims made under any such
guarantee or warranty prior to the Effective Time;
(v) All intangible assets used primarily in the operation of the
Acquired Business, including, but not limited to, all patents,
copyrights, trademarks, service marks and designs and those trade names
and service names set forth on Schedule 2.1(a) hereto and all related
goodwill, all domain names and telephone numbers of the Acquired
Business and all trade secrets and inventions used or developed
primarily by the Acquired Business (whether or not patentable or
reduced to practice); provided, that any such trademark, trade name or
service marks that contains the name "Metaldyne" shall not be a
"Purchased Asset;"
(vi) All prepaid items including, without limitation, all
equipment, lease and other deposits, relating primarily to the Acquired
Business;
(vii) Copies of all customer lists, customer contracts and
financial records relating primarily to the Acquired Business;
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(viii) Except for corporate documents, records and minutes,
copies of all books, records and documents required for or primarily
relating to the operation of the Acquired Business;
(ix) All inventory of the Acquired Business;
(x) Rights to ordered inventory and services and open customer
orders of the Acquired Business from and after the Effective Time;
(xi) All accounts receivable of the Acquired Business arising
after the Effective Time and any cash paid in respect thereof to the
extent not used to invest in Purchased Assets or to reduce Assumed
Liabilities;
(xii) The assets to be transferred pursuant to Section 7.6; and
(xiii) Any and all other assets of whatever type or description,
other than the Excluded Assets, which are used primarily in the
operation of the Acquired Business including without limitation all
rights title and interest of Metaldyne LLC being transferred pursuant
to the Fittings Facility Sublease.
provided, that notwithstanding the foregoing, to the extent that the sale,
conveyance, transfer, assignment or delivery or attempted sale, conveyance,
transfer, assignment or delivery to Buyer of any Purchased Assets (including any
Assumed Contract) is prohibited by any applicable law or would require any
governmental or third-party authorizations, approvals, consents or waivers and
such authorizations, approvals, consents or waivers shall not have been obtained
prior to the Closing, this Agreement shall not constitute a sale, conveyance,
transfer, assignment or delivery, or an attempted sale, conveyance, transfer,
assignment or delivery, thereof, if any of the foregoing would constitute a
breach of applicable law or the rights of any third party. Following the
Closing, the parties shall use their commercially reasonable efforts, and shall
cooperate with each other, to obtain promptly such authorizations, approvals,
consents or waivers; provided, however, that neither Sellers nor Buyer nor any
of their respective Affiliates shall be required to pay any consideration
therefor, other than filing, recordation or similar fees payable to any
Governmental Authority, which fees shall be shared equally by Sellers and Buyer.
Pending or in the absence of such authorization, approval, consent or waiver,
the parties shall cooperate with each other in any reasonable and lawful
arrangements to provide to Buyer the benefits and liabilities of use of such
Purchased Assets. If such authorization, approval, consent or waiver for the
sale, conveyance, transfer, assignment or delivery of any such Purchased Assets
is obtained, Seller shall promptly convey, transfer, assign and deliver, or
cause to be conveyed, transferred, assigned and delivered, such Purchased Assets
to Buyer.
(b) Notwithstanding anything to the contrary contained in this
Agreement, from and after the Closing but effective as of the Effective Time,
the Sellers and their Subsidiaries shall retain all of their rights, title and
interest in and to the following assets (the "EXCLUDED ASSETS"):
(i) All accounts receivable of the Acquired Business arising
prior to the Effective time;
(ii) Any rights to income tax refunds and prepaid income taxes;
(iii) Any right and interest of the Sellers in this Agreement,
Sellers rights as landlord under the Fittings Facility Sublease and,
after giving effect to the Fittings Facility Sublease, Metaldyne LLC's
rights as tenant under the lease of the Fittings Facility;
(iv) Any and all of the Seller's insurance policies, including
all rights to coverage, all proceeds and all prepaid insurance under
such policies;
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(v) Any other assets or property of the Sellers' which are not
(A) used primarily in the Acquired Business or (B) located at the
Fittings Facility.
(c) Subject to the terms and conditions of this Agreement, as of
the Closing Date but effective as of the Effective Time, Buyer agrees to assume,
satisfy, perform, pay and discharge each of the following Liabilities (the
"ASSUMED LIABILITIES"):
(i) Subject to Section 2.1(d) below and Section 7.6, all
environmental, health or other Liabilities of any kind and nature to
the extent arising from the businesses, operations and assets of the
Acquired Business and regardless of whether such Liabilities shall
arise prior to, on or after the Effective Time, including without
limitation, those Liabilities set forth on Schedule 2.1(c); and
(ii) All accounts payable of the Acquired Business arising after
the Effective Time.
(d) Notwithstanding anything contained in this Agreement to the
contrary, from and after the Closing Date but effective as of the Effective
Time, as between the Buyer and the Sellers, the Sellers shall retain all of the
following Liabilities (the "EXCLUDED LIABILITIES"):
(i) All environmental, health or other Liabilities of any kind
and nature to the extent arising from any businesses, operations and
assets of any Seller or any of the Sellers' Subsidiaries other than the
Acquired Business whenever such businesses, operations or assets shall
have been conducted or owned and regardless of whether such Liabilities
shall arise prior to, on or after the Effective Time, including,
without limitation, any Liabilities relating to the Excluded Assets;
(ii) All Liabilities of the Sellers under this Agreement, as
landlord under the Fittings Facility Sublease and, after giving effect
to the Fittings Facility Sublease, Seller's obligations as tenant under
the lease of the Fittings Facility;
(iii) All Liabilities for income Taxes and insurance coverage
with respect to the operation of the Acquired Business by Sellers and
Sellers' Subsidiaries; and
(iv) All Liabilities of Sellers for accounts payable arising
prior to the Effective Time.
SECTION 2.2. ALLOCATION OF PURCHASE PRICE. The Purchase Price
shall be allocated among the Purchased Assets in accordance with Section 1060 of
the Code, and Buyer and Sellers agree (a) to report the sale and purchase of the
Purchased Assets for Tax purposes in accordance with such allocations and (b)
not to take any position inconsistent with such allocations on any of their
respective tax returns. Metaldyne shall initially determine and send written
notice to the Buyer of the allocation of the Purchase Price within 60 days
following the execution of this Agreement. The Buyer shall be deemed to have
accepted such allocation unless it provides written notice of disagreement to
Metaldyne within 10 days of receipt of Metaldyne's notice of allocation. If the
Buyer provides such notice of disagreement to Metaldyne, the parties shall
proceed in good faith to determine the allocation in dispute.
SECTION 2.3. PAYMENT OF SALES, USE AND OTHER TAXES. The Sellers
shall pay all sales, use, transfer, value added and other related Taxes, if any,
arising out of the sale by the Sellers of the Purchased Assets and the transfer
of the Assumed Liabilities to the Buyer pursuant to this Agreement.
SECTION 2.4. TREATMENT OF RESTRICTED STOCK AWARDS HELD BY
TRANSFERRED EMPLOYEES. Buyer shall promptly pay Transferred Employees on the
redemption in 2004 of restricted share awards (at the rate of $20.28 per share)
of Metaldyne held by such Transferred Employees under Restricted Stock Awards
dated
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November 17, 2000 (the "RESTRICTED STOCK AWARDS"). For purposes of the
continued vesting of Restricted Stock Awards, Buyer and Metaldyne will treat
employment with the Buyer or any Subsidiary of the Buyer as employment of the
Transferred Employees with Metaldyne.
ARTICLE III.
CLOSING
SECTION 3.1. TIME AND PLACE. Unless this Agreement is earlier
terminated pursuant to Article X, the closing of the transactions contemplated
by Article II of this Agreement, including the purchase and sale of the
Purchased Assets and the assumption of the Assumed Liabilities (the "CLOSING"),
shall take place as promptly as practicable, but no later than five Business
Days following satisfaction or waiver of the conditions set forth in Articles
VIII, at 10:00 a.m. at the offices of Cahill Gordon & Reindel, 80 Pine Street,
New York, New York 10005, unless another time or place shall be agreed to by the
parties (the "CLOSING DATE").
SECTION 3.2. DELIVERIES AT CLOSING.
(a) Closing Deliveries by the Sellers. At the Closing, the
Sellers shall deliver or cause to be delivered to the Buyer:
(i) the Bill of Sale executed by the Sellers;
(ii) original signature pages to the Fittings Facility
Sublease executed by Metaldyne LLC and the Trademark Assignment executed by
Metaldyne;
(iii) an unredacted, fully executed copy of each Assumed
Contract, together with assignment and assumption agreements and/or
subcontracts, as applicable, in form and substance reasonably
acceptable to the Buyer, assigning to the Buyer all rights of the
Sellers in and to such Assumed Contracts;
(iv) copies of all consents set forth on Schedule 4.4;
(v) the Officer's Certificate described in Section
8.2(a)(iii); and
(vi) a FIRPTA affidavit for each Seller, if required by
Section 1445 of the Code.
In addition, Sellers shall use commercially reasonable efforts
to deliver such other instruments and documents of conveyance and transfer as
shall be necessary and effective to transfer and assign to, and vest in, Buyer
all of Sellers' rights, title and interest in and to the Purchased Assets and
such other respective agreements and other documents, instruments and
certificates in addition to good standing certificates, certified resolutions,
receipts and such other items as may be reasonably requested by Buyer.
Simultaneously with such deliveries, all such commercially reasonable steps will
be taken by Sellers as may be required to put Buyer in actual possession and
operating control of the Purchased Assets.
(b) Closing Deliveries by the Buyer. At the Closing, the
Buyer will deliver or cause to be delivered to the Sellers:
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(i) the Purchase Price in immediately available funds by
wire transfer to an account or accounts that shall have been designated
by the Sellers not less than two Business Days prior to the Closing
Date;
(ii) original signature pages to the Fittings Facility
Sublease and the Trademark Assignment executed by Buyer or a Subsidiary
of Buyer;
(iii) the Officer's Certificate described in Section
8.3(a)(iii); and
(iv) the Acknowledgement of Assumption of Liabilities
executed by Buyer.
Additionally, Buyer shall use its commercially reasonable
efforts to deliver such other respective agreements and other documents,
instruments and certificates in addition to good standing certificates,
certified resolutions and such other items as may be reasonably requested by
Sellers.
SECTION 3.3. ADJUSTMENT TO PURCHASE PRICE. The Purchase Price
shall be subject to adjustment after the Closing as follows:
(a) If Net Working Capital, as finally determined as hereinafter
provided in this Section 3.3, is less than $965,000, the Purchase Price
shall be deemed reduced by such difference and Sellers shall pay Buyer
an amount in cash equal to such difference. If Net Working Capital, as
finally determined, is greater than $965,000, the Purchase Price shall
be deemed increased by such difference and Buyer shall pay Sellers an
amount in cash equal to such difference. Such reduction or increase in
the Purchase Price shall be referred to herein as the "PURCHASE PRICE
ADJUSTMENT." Any Purchase Price Adjustment shall be paid within five
Business Days after such final determination.
(b) Within 60 days after the Closing Date, Buyer will prepare
and present to Metaldyne a statement in reasonable detail of Net
Working Capital (as hereinafter defined) of the Acquired Business as of
the Effective Time (the "PRELIMINARY STATEMENT") in the form and with
the accounting categories and layout set forth in the example attached
hereto as Schedule 3.3(b). "NET WORKING CAPITAL" shall mean (i) the sum
of (A) inventory (before reserves and excluding accrued capitalized
variances from standard costs) plus (B) prepaid expenses, less (ii)
accrued expenses, all as determined in a manner consistent with the
Applicable Accounting Principles. Net Working Capital shall be
determined without giving effect to the transactions contemplated by
this Agreement. Net Working Capital shall not reflect or include any
amount with respect to any of the Excluded Assets or any Liabilities
that are not Assumed Liabilities.
(c) Sellers and their accountants shall have the right to review
the work papers of Buyer utilized in preparing the Preliminary
Statement and shall have full access to the books, records, properties
and personnel of Buyer for purposes of verifying the accuracy and
fairness of the presentation of Net Working Capital in the Preliminary
Statement. The Preliminary Statement shall be binding on Sellers,
unless Metaldyne presents to Buyer written notice of disagreement
within 30 days after receipt of the Preliminary Statement specifying in
reasonable detail the nature and extent of the disagreement.
(d) If Buyer and Sellers are unable to resolve any such
disagreement within 15 days after Buyer received notice of such
disagreement, the disagreement shall be referred for final
determination to an independent accounting firm as the parties shall
mutually designate. The accounting firm so designated to make the final
determination is hereinafter referred to as the "INDEPENDENT
ACCOUNTANTS."
(e) Net Working Capital shall be deemed to have been finally
determined upon the first to occur of (i) written acceptance of the
Preliminary Statement by Metaldyne, (ii) Metaldyne's failure to ob-
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ject thereto within 30 days of receipt thereof, or (iii) notification
by the Independent Accountants of their final determination thereof.
(f) The fees and disbursements of the accountants of Buyer shall
be paid by Buyer. The fees and disbursements of Sellers' accountants
shall be paid by Sellers. The fees and disbursements of the Independent
Accountants incurred pursuant to this Section 3.3 shall be borne
equally, one-half by Sellers and one-half by Buyer.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller, jointly and severally, represents and warrants to
Buyer that, except as set forth in any disclosure schedule delivered by the
Sellers to Buyer immediately prior to execution of this Agreement:
SECTION 4.1. CORPORATE EXISTENCE AND POWER. Each Seller is a
corporation or limited liability company duly formed, validly existing and in
good standing under the laws of the State of Delaware and has all organizational
powers and governmental licenses, authorizations, permits, consents and
approvals required to carry on the Acquired Business as now conducted, except
for those licenses, authorizations, permits, consents and approvals the absence
of which would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect. Each Seller is duly qualified to do
business as a foreign entity and is in good standing in each jurisdiction where
such qualification is necessary, except for those jurisdictions where failure to
be so qualified would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect.
SECTION 4.2. CORPORATE AUTHORIZATION. The execution, delivery
and performance by the Sellers of this Agreement and the consummation by Sellers
of the Transactions are within the Sellers' organizational powers and have been
duly authorized by all necessary organizational action on the part of the
Sellers. This Agreement constitutes a valid and binding agreement of each Seller
enforceable against each Seller in accordance with its terms except (i) to the
extent enforceability may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors' rights
generally and (ii) to the extent enforceability may be limited by general equity
principles.
SECTION 4.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery
and performance by the Sellers of this Agreement and the consummation by the
Sellers of the Transactions require no action by or in respect of, or filing
with, or notification or reporting to, any Governmental Authority, other than
any actions or filings the absence of which would not be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect.
SECTION 4.4. NON-CONTRAVENTION. The execution, delivery and
performance by the Sellers of this Agreement and the consummation of the
Transactions by the Sellers do not and will not (i) contravene, conflict with or
result in any violation or breach of any provision of the certificate of
incorporation or by-laws of the Sellers, (ii) contravene, conflict with or
result in a violation or breach of any provision of any applicable law, statute,
ordinance, rule, regulation, judgment, injunction, order or decree, (iii) except
as set forth on Schedule 4.4, require any consent or other action by any Person
under, constitute a default under or cause or permit the termination,
cancellation, acceleration or other change of any right or obligation or the
loss of any benefit to which the Acquired Business is entitled under any
provision of any agreement or other instrument binding upon any Seller or any
license, franchise, permit, certificate, approval or other similar authorization
affecting, or relating in any way to, the Acquired Business or (iv) result in
the creation or imposition of any Lien on any of the Purchased
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Assets, except for such contraventions, conflicts and violations referred to in
clause (ii) and except for such failures to obtain any such consent or other
action, defaults, terminations, cancellations, accelerations, changes or losses
referred to in clause (iii) that would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
SECTION 4.5. ABSENCE OF CERTAIN CHANGES. Since December 31,
2002, except in connection with the Transactions, the Acquired Business has been
conducted in the ordinary course consistent with past practices and there has
not been:
(a) any creation or other incurrence by any Seller of any Lien
on any asset that is material to the Acquired Business, taken as a
whole, other than in the ordinary course of business consistent with
past practices;
(b) any damage, destruction or other casualty loss (whether or
not covered by insurance) affecting the Acquired Business that has or
could be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect; or
(c) any loss of any material supplier or customer of the
Acquired Business.
SECTION 4.6. COMPLIANCE WITH LAWS AND COURT ORDERS. The Acquired
Business is, and since January 1, 2002 has been, in compliance with any
applicable law, statute, ordinance, rule, regulation, judgment, injunction,
order or decree, except for failures to comply or violations that have not had
and would not be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect.
SECTION 4.7. LITIGATION. There is no Action, suit, investigation
or proceeding pending against, or, to the knowledge of the Sellers, threatened
against, any Seller, in either case, with respect to the Acquired Business, any
of the Purchased Assets or any of the Assumed Liabilities before any court or
arbitrator, or before or by any Governmental Authority, that would reasonably be
expected to have, individually or in the aggregate, together with all other such
Actions, suits, investigations or proceedings, a Material Adverse Effect.
SECTION 4.8. FINDERS' FEE. There is no investment banker,
broker, finder or other intermediary that has been retained by or is authorized
to act on behalf of any Seller or any of their respective Subsidiaries that
might be entitled to any fee or commission from Buyer, or any of its Affiliates
in connection with the Transactions.
SECTION 4.9. EMPLOYEE BENEFIT PLANS. (a) Copies of all written
Benefit Plans, summary plan descriptions, trust agreements, actuarial valuation
reports and the most recent annual return and IRS determination letters have
been made available to Buyer.
(b) Except as would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect:
(i) each Benefit Plan has at all times been maintained and
administered in all respects in accordance with its terms and with the
requirements of all applicable law, including ERISA and the Code. Each
Benefit Plan intended to qualify under Section 401(a) of the Code has
been determined by the IRS to be qualified under Section 401(a) of the
Code, and the Sellers know of no fact or circumstance giving rise to a
material likelihood that any Benefit Plan would not be treated as so
qualified by the IRS;
(ii) all required contributions to any Benefit Plans that are
"defined benefit pension plans" required to be made by any Seller or
any of its Subsidiaries in accordance with Section 302 of ERISA or
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Section 412 of the Code have been timely made; there has been no
application for or waiver of the minimum funding standards imposed by
Section 412 of the Code with respect to any Benefit Plan; and no
Benefit Plan has incurred any "accumulated funding deficiency" within
the meaning of Section 302 of ERISA or Section 412 of the Code;
(iii) no "reportable event" (within the meaning of Section 4043
of ERISA) has occurred with respect to any Benefit Plan or any Plan
maintained by an ERISA Affiliate since the effective date of said
Section 4043;
(iv) no liability has been incurred or is expected to be
incurred by any Seller or any of its Subsidiaries under Title IV of
ERISA with respect to any Benefit Plan, or with respect to any other
Plan presently or heretofore maintained or contributed to during the 5
year period prior to the Closing Date by any ERISA Affiliate;
(v) none of the Benefit Plans are Multiemployer Plans;
(vi) neither the Sellers nor any of their ERISA Affiliates has
incurred any liability for any tax imposed under Sections 4971 through
4980E of the Code or civil liability under Section 502(i) or (l) of
ERISA; and
(vii) no action (excluding claims for benefits incurred in the
ordinary course of Plan activities) has been brought or, to the
knowledge of the Sellers, threatened against or with respect to any
Benefit Plan.
SECTION 4.10. FINANCIAL STATEMENTS. The Acquired Business
Balance Sheet in accordance with the Applicable Accounting Principles and the
unaudited statement of profit and loss for the Acquired Business for the three
months ended March 31, 2003 have been prepared in accordance with the Applicable
Accounting Principles and accurately reflect the financial position and results
of operations of the Acquired Business, as of and for the period then ended.
SECTION 4.11. NO LIABILITIES. Except for the Liabilities
incurred subsequent to the date of the Acquired Business Balance Sheet in the
ordinary course of operation of the Acquired Business, there are no liabilities
or obligations of the Acquired Business of the type required to be disclosed or
provided for on the Acquired Business Balance Sheet in accordance with the
Applicable Accounting Principles that have not been disclosed on the Acquired
Business Balance Sheet. Except for Liabilities reflected on the Acquired
Business Balance Sheet or incurred subsequent to the date thereof in the
ordinary course of operation of the Acquired Business, there are no Liabilities
of the Acquired Business that would individually or in the aggregate have a
Material Adverse Effect.
SECTION 4.12. TITLE TO ASSETS. At the Closing, Metaldyne and its
Subsidiaries own outright and have good title to all of the Purchased Assets. At
the Closing, the Buyer will acquire all of the right, title and interest in the
Purchased Assets, free and clear of any Liens. To the knowledge of the Sellers,
each of the Assumed Contracts is in full force and effect and constitutes a
legal, valid and binding obligation of each party thereto, enforceable against
each party thereto in accordance with its terms.
SECTION 4.13. DISCLAIMER OF OTHER REPRESENTATIONS AND
WARRANTIES. The Sellers do not make, and have not made, any representations or
warranties in connection with the Transactions other than those expressly set
forth herein. It is understood that any data, any financial information or any
memoranda or offering materials or presentations are not and shall not be deemed
to be or to include representations or warranties of Sellers. Except as
expressly set forth herein, no Person has been authorized by any Seller to make
any representation or
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warranty relating to any Seller or the Acquired Business or otherwise in
connection with the Transactions and, if made, such representation or warranty
may not be relied upon as having been authorized by any Seller.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Sellers that:
SECTION 5.1. CORPORATE EXISTENCE AND POWER. Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all corporate powers and all material
governmental licenses, authorizations, permits, consents and approvals required
to perform its obligations with respect to the Transactions.
SECTION 5.2. CORPORATE AUTHORIZATION. The execution, delivery
and performance by Buyer of this Agreement and the consummation of the
Transactions are within the corporate powers of Buyer and have been duly
authorized by all necessary corporate action. This Agreement constitutes a valid
and binding agreement of Buyer enforceable against Buyer in accordance with its
terms except (i) to the extent enforceability may be limited by bankruptcy laws,
insolvency laws, reorganization laws, moratorium laws or other laws affecting
creditors' rights generally and (ii) to the extent enforceability may be limited
by general equity principles.
SECTION 5.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery
and performance by Buyer of this Agreement and the consummation by Buyer of the
Transactions require no action by or in respect of, or filing with, or
notification or reporting to, any Governmental Authority other than any actions
or filings the absence of which would not be reasonably expected to have,
individually or in the aggregate, an effect which is materially adverse to the
ability of Buyer to consummate the Transactions.
SECTION 5.4. NON-CONTRAVENTION. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
Transactions do not and will not (i) contravene, conflict with or result in any
violation or breach of any provision of the certificate of incorporation or
by-laws of Buyer, (ii) contravene, conflict with or result in a violation or
breach of any provision of any law, rule, regulation, judgment, injunction,
order or decree, (iii) require any consent or other action by any Person under,
constitute a default under or cause or permit the termination, cancellation,
acceleration or other change of any right or obligation or the loss of any
benefit to which Buyer is entitled under any provision of any agreement or other
instrument binding upon Buyer or any license, franchise, permit, certificate,
approval or other similar authorization affecting, or relating in any way to,
the assets or business of Buyer or (iv) result in the creation or imposition of
any Lien on any asset of Buyer, except for such contraventions, conflicts and
violations referred to in clause (ii) and for such failures to obtain any such
consent or other action, defaults, terminations, cancellations, accelerations,
changes, losses or Liens referred to in clauses (iii) and (iv) that would not be
reasonably expected to materially impair the ability of Buyer to consummate the
Transactions.
SECTION 5.5. FINDERS' FEES. There is no investment banker,
broker, finder or other intermediary that has been retained by or is authorized
to act on behalf of Buyer or any of Buyer's Subsidiaries that might be entitled
to any fee or commission from any Seller or any of their Affiliates in
connection with the Transactions.
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ARTICLE VI.
COVENANTS OF THE SELLERS
Sellers agree that:
SECTION 6.1. CONDUCT OF THE ACQUIRED BUSINESS. Except as
contemplated by this Agreement or as expressly agreed to in writing by Buyer,
during the period from the date of this Agreement to the Closing Date, Sellers
shall operate the Acquired Business according to its ordinary and usual course
of business and consistent with past practice and use all commercially
reasonable efforts to preserve intact with respect to the Acquired Business, its
current business organizations, keep available the services of its current
officers and employees and preserve its relationships with customers, suppliers,
licensors, licensees, advertisers, distributors and others having business
dealings with it and preserve goodwill. Without limiting the generality of the
foregoing, and except as (x) otherwise expressly provided in this Agreement or
(y) required by law, prior to the Closing Date, Sellers shall not, without the
consent of Buyer:
(a) sell, lease, license or otherwise dispose of any material
amount of assets, securities or property of the Acquired Business,
taken as a whole, except pursuant to existing contracts or commitments
or otherwise in the ordinary course consistent with past practice;
(b) alter through merger, liquidation, reorganization,
restructuring or in any other fashion the corporate structure or
ownership of the Acquired Business;
(c) incur any Lien on any Purchased Asset;
(d) settle or compromise any material litigation (whether or not
commenced prior to the date of this Agreement) relating to the Acquired
Business or settle, pay or compromise any material claims not required
to be paid relating to the Acquired Business, other than, in each case,
relating to Taxes;
(e) make any change with respect to management of inventory for
the Acquired Business;
(f) (i) take any action that would make any representation and
warranty of Sellers hereunder inaccurate in any material respect at, or
as of any time prior to, the Closing Date or (ii) omit to take any
action necessary to prevent any such representation or warranty from
being materially inaccurate in any respect at any such time; or
(g) authorize, or commit or agree to take, any of the foregoing
actions.
SECTION 6.2. ACCESS TO INFORMATION. From the date of this
Agreement until the Closing Date, Sellers agree to and to cause the Acquired
Business and each of their respective officers, directors, employees, counsel,
advisors and representatives (collectively, the "SELLER REPRESENTATIVES") to
give Buyer and its officers, employees, counsel, advisors and representatives
(collectively, the "BUYER REPRESENTATIVES") reasonable access, upon reasonable
notice and during normal business hours, to the offices and other facilities and
to the books and records of the Acquired Business and shall cause the Seller
Representatives to furnish Buyer and the Buyer Representatives with such
financial and operating data and such other information with respect to the
Acquired Business as Buyer may from time to time reasonably request.
SECTION 6.3. REPORTS. During the period from the date of this
Agreement to the Closing Date, Sellers shall provide Buyer with monthly
financial statements of the Acquired Business in the existing report-
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ing format (balance sheet, income statement and, if available, notes thereto),
no later than the fifteenth Business Day following the end of each calendar
month following the date of this Agreement.
SECTION 6.4. CONSULTATION WITH BUYER. During the period from the
date of this Agreement to the Closing Date, Sellers shall consult with Buyer
prior to entering into any contract with respect to the Purchased Assets,
Assumed Liabilities or Transferred Employees that has a duration of over 90 days
or that would be reasonably likely to result in payments by or to Buyer in
excess of $250,000. In furtherance of the foregoing, Sellers covenant that they
will consult with and provide all relevant documents to Buyer between the date
of execution of this Agreement and the Closing Date with respect to all matters
relating to communications and negotiations, if any, with the United Automobile
Workers of America Local No. 36 regarding the terms and conditions of employment
of the Transferred Employees at the Fittings Facility and procedures for
negotiations thereof.
ARTICLE VII.
COVENANTS OF BUYER AND SELLERS
The parties hereto agree that:
SECTION 7.1. COMMERCIALLY REASONABLE EFFORTS. Subject to the
terms and conditions of this Agreement, Buyer and Sellers will use all
commercially reasonable efforts to take, or cause to be taken, all necessary or
appropriate actions and to do, or cause to be done, all things necessary or
appropriate to satisfy the conditions to closing set forth in Article VIII
hereof and to consummate the Transactions on the terms and conditions set forth
in this Agreement including, without limitation, to use commercially reasonable
efforts to obtain any consents necessary to be obtained prior to and after the
Closing Date.
SECTION 7.2. CERTAIN FILINGS. Prior to and after the Closing
Date, Buyer and Sellers shall use their commercially reasonable efforts to
cooperate with one another in (i) determining whether any action by or in
respect of, or filing with, any Governmental Authority is required, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any material contracts, in connection with the consummation of the
Transactions, and (ii) taking such actions or making any such filings,
furnishing information required in connection therewith and seeking timely to
obtain any such actions, consents, approvals or waivers.
SECTION 7.3. PUBLIC ANNOUNCEMENTS. Buyer and Sellers shall
consult with each other before issuing any press release or making any public
statement with respect to this Agreement or the Transactions and shall not issue
any such press release or make any such public statement without the consent of
the other parties hereto.
SECTION 7.4. NOTICES OF CERTAIN EVENTS. Buyer and Sellers shall
promptly notify the other of:
(a) any written notice or other written communication from any
Person alleging that the consent of such Person is or may be required
in connection with the Transactions;
(b) any written notice or other written communication from any
Governmental Authority in connection with the Transactions;
(c) any Actions, suits, claims, investigations or proceedings
commenced or, to its knowledge, threatened against, relating to or
involving or otherwise affecting Sellers or the Acquired Business that,
if
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pending on the date of this Agreement, would have been required to
be disclosed pursuant to Section 4.7 hereof, or that relate to the
consummation of the Transactions;
(d) the occurrence or non-occurrence of any fact or event which
would be reasonably likely:
(i) to cause any representation or warranty contained in
this Agreement to be untrue or inaccurate in any material
respect at any time from the date hereof to the Closing Date, or
(ii) to cause any covenant, condition or agreement under
this Agreement not to be complied with or satisfied; and
(e) any failure of Buyer or any Seller, as the case may be, to
comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that no
such notification shall affect the representations or warranties of any
party or the conditions to the obligations of any party hereunder.
SECTION 7.5. CONFIDENTIALITY. Prior to the Closing Date and
after any termination of this Agreement, Buyer and each Seller will hold, and
will use all commercially reasonable efforts to cause its officers, directors,
employees, accountants, counsel, consultants, advisors and agents to hold, in
confidence all confidential documents and information concerning the other party
furnished to it or its Affiliates in connection with the Transactions.
SECTION 7.6. PLANS.
(a) Employment Status. Buyer shall employ all of the Employees
who are actively employed by the Acquired Business on the Closing Date
immediately after giving effect to the Transactions (each such employee
being hereafter referred to as a "TRANSFERRED EMPLOYEE"), it being
agreed that persons who are on layoff or leave and who have a right to
return to work at the Acquired Business or who are on short-term (not
more than six months) medical disability (including pregnancy leave)
who do not thereafter become eligible for long-term medical disability
or other authorized leave (such as military, family or other leaves
where return to work is subject to statutory requirements) are to be
considered Employees who are actively employed, and it is also agreed
that persons on long-term medical disability or whose short-term
medical disability thereafter becomes a long-term medical disability
and persons whose employment has terminated or will terminate prior to
the Closing Date without any right to return to work are not to be
considered Employees who are actively employed; provided, however, that
the provisions of this Section 7.6(a) shall not be construed to limit
the ability of the Buyer to terminate any such Employee at any time for
any reason. From and after the Effective Time, Buyer shall also assume
responsibility to provide Former Employees with disability benefits in
the same manner and to the same extent as such Former Employees would
have been entitled to receive under Sellers' disability plans and Buyer
shall assume the responsibility to provide Transferred Employees and
Former Employees with continuing benefits and coverage required, if
any, under Section 4980B of the Code and part 6 of Subtitle B of Title
I of ERISA. Sellers hereby represent and warrant to Buyer that Schedule
7.6(a) hereto contains a true and accurate list of all Transferred
Employees, and (i) each of their respective compensation arrangements
(ii) the date of hire of each such employee; and (iii) any employment,
severance or other compensation agreement with any such employee. For
purposes of this Agreement, the terms "layoff," "right to return to
work," "short-term disability," "long-term disability" and "pregnancy
leave" shall be construed in accordance with the personnel policies of
Sellers and the collective bargaining agreements covering Transferred
Employees, if applicable, both as in effect as of the date hereof.
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(b) Pension Plans. (i) Effective as of December 31, 2002, except
for Employees included in the United Auto Workers Hi-Vol Livonia
collective bargaining group (the "UNION EMPLOYEES") who participate in
the MascoTech, Inc. Master Hourly Employees Pension Plan (the "UNION
PLAN"), the Transferred Employees have ceased to participate in, or
accrue any further benefits under, any tax-qualified defined benefit
plan of Sellers or their Subsidiaries; provided, however, that, to the
extent permitted by applicable law, and, except as otherwise elected in
subsection (ii) below, the benefits of the Union Employees in the Union
Plan shall be increased by crediting the service of such Transferred
Employees with Buyer and its Subsidiaries through the earlier of (A)
December 31, 2003 and (B) the Plan Effective Date (as defined below).
Effective as of the Effective Time, except as otherwise provided
herein, Buyer shall not have any responsibility for contributing to or
under any tax-qualified defined benefit plan maintained by Sellers or
their Subsidiaries. Except as otherwise provided below, all assets and
liabilities of any tax-qualified defined benefit plan maintained by
Sellers or any of their Subsidiaries attributable to any Employee or
Former Employee of the Acquired Business shall be retained by Sellers.
Notwithstanding the foregoing, if (A) on or before December 31, 2003,
Buyer enters into a binding collective bargaining agreement (the "UNION
AGREEMENT") with respect to the Union Employees; (B) such Union
Agreement provides for the Union Employees to participate in a defined
benefit pension plan sponsored by Buyer or its Subsidiaries (the "BUYER
UNION PLAN"); and (C) the Buyer Union Plan credits service with Sellers
for purposes of determining benefit accruals for Union Employees, then
the following subsections (ii), (iii), (iv) and (v) shall apply.
(ii) Buyer shall, as soon as practicable after entering into
the Union Agreement, notify Metaldyne thereof and advise Metaldyne as
to whether the Union Agreement meets the requirements set forth in the
last sentence of Section 7.6(b)(i) and, if applicable, of the date that
is the Plan Effective Date. Buyer shall establish or maintain, as of
the date the Buyer Union Plan or any other replacement plan becomes
effective pursuant to the collective bargaining agreement with the
Employees (the "PLAN EFFECTIVE DATE"), a tax-qualified defined benefit
plan (the "BUYER'S PENSION PLAN") for Employees and Former Employees
participating in the Union Plan. Subject to the transfer of assets
described in Section 7.6(b)(iii), the Buyer's Pension Plan shall assume
the liabilities as of the Plan Effective Date for the benefits of all
Employees and Former Employees participating in the Union Plan.
(iii) On a day which is within 60 days after the later of (i)
the date upon which the Buyer delivers to Metaldyne notice that the
Buyer's actuaries, pursuant to Section 7.6(b)(v) hereof, have reviewed
the calculations of Sellers' actuaries and are satisfied that such
calculations are in accordance with this Agreement (or have failed to
do so within the 60 day period provided for in Section 7.6(b)(v)), or
(ii) the day upon which the Buyer delivers to Metaldyne a favorable IRS
determination letter or an opinion of the Buyer's counsel, reasonably
satisfactory to Metaldyne's counsel, to the effect that the terms of
the Buyer's Pension Plan and its related trust qualify, as to form,
under Section 401(a) and Section 501(a) of the Code, Sellers shall
cause the trustee under the Union Plan ("SELLERS' TRUSTEE") to transfer
to the trustee of the Buyer's Pension Plan (the "BUYER'S TRUSTEE") cash
assets or such other assets agreeable to the Buyer's Trustee and
Sellers' Trustee in an amount equal to the amount necessary to satisfy
the applicable requirements of Sections 414(1) and 401(a)(12) of the
Code, computed based on the actuarial assumptions used by Sellers for
financial disclosure purposes for the most recently completed fiscal
year ending on or before the date of such transfer.
(iv) The amount transferred pursuant to Section 7.6(b)(iii)
shall be adjusted for investment earnings or losses of the trust in
which the Union Plan assets are held for the period between the Plan
Effective Date and the actual date of transfer and reduced by the
amount of any benefit payments actually paid from such plan to
Employees and Former Employees during such period and a proportionate
share of administrative expenses for such period if such administrative
expenses are properly chargeable (and are actually charged) to the
Union Plan. Sellers shall estimate such earnings as of the actual date
of transfer and then within 90 days of the actual date of transfer,
Sellers shall cause Sellers' Trustee to remit to the
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Company's Trustee or the Buyer shall cause the Buyer's Trustee to remit
to Sellers' Trustee, as appropriate, an amount equal to the difference
between the actual rate of earnings for such period and the estimated
amount transferred as of the actual date of transfer (such difference
to be adjusted for investment earnings at the State Street Bank
short-term rate for the period between the actual date of transfer and
the date such difference is paid to Sellers' Trustee or the Buyer's
Trustee). Notwithstanding anything in this Section 7.6(b) to the
contrary, following the Plan Effective Date and until the date of the
respective transfers of assets to trusts under the Buyer's Pension
Plan, Sellers shall cause Sellers' Trustee to continue to provide
benefits to plan participants in accordance with the terms of the Union
Plan to the extent that such benefits have accrued on or before the
Plan Effective Date. To the extent that benefits have accrued after the
Plan Effective Date, following the transfer of assets pursuant to
Section 7.6(b)(iii), the Buyer shall pay such benefits to plan
participants (retroactively, if applicable) in accordance with the
terms of the Buyer's Pension Plan.
(v) The assets caused to be transferred pursuant to Section
7.6(b)(iii) shall be calculated by Sellers' actuary, and shall be
subject to review by the Buyer's actuary for the purpose of confirming
that the calculation was made in accordance with (i) the actuarial
assumptions and methods set forth in this Section 7.6(b) and (ii)
generally accepted actuarial practice. As soon as practicable after
receiving the notification from Buyer referred to in Section
7.6(b)(ii), Sellers shall provide the Buyer with a detailed summary of
the calculations described in this Section 7.6(b) and any back-up data
reasonably requested by Buyer. If the Buyer or the Buyer's actuary do
not notify Metaldyne to the contrary within 60 days after the delivery
to Buyer of such detailed summary and data, the calculations of
Sellers' actuary pursuant to this Section 7.6(b) shall be deemed to be
final, conclusive and binding on the parties. If, however, Buyer
notifies Metaldyne in writing within such period that it and its
actuary believe that the calculations were not prepared in accordance
with the requirements of this Section 7.6(b) and such notice specifies
(i) the precise items of the calculations challenged, (ii) the basis of
the challenge and (iii) the amount of the adjustment they propose with
respect to each such item, the parties will then attempt to resolve
their differences with respect thereto. If the parties are unable to
resolve their dispute within 30 days after the date the Buyer notifies
Metaldyne of the disputed items, the disputed items shall be referred
to an international benefits consulting firm (the "ACTUARY FIRM")
mutually acceptable to Buyer and Sellers. Sellers and Buyer shall
request that the Actuary Firm resolve such disputes and report to
Sellers and Buyer upon such remaining disputed items within 45 days
after such referral. The decision of the Actuary Firm shall be final,
conclusive and binding on the parties hereto. The fees and expenses of
the Actuary Firm in conducting this assignment shall be borne equally
by Sellers on the one hand and Buyer on the other.
(c) Defined Contribution Plan. As soon as practical after the
Closing Date, Sellers shall cause the trustee of Sellers' defined
contribution plans listed on Schedule 7.6(c) hereof ("SELLERS' SAVINGS
PLANS") to transfer all of the assets and liabilities thereof
attributable to Employees and Former Employees of the Acquired Business
to one or more defined contribution plans maintained by Buyer. Unless
otherwise agreed by Sellers and Buyer, the assets to be transferred
shall be cash and promissory notes for loans made to Employees and
Former Employees of Buyer under the terms of the Sellers' Savings
Plans. Sellers shall be responsible for making contributions to
Sellers' Savings Plans for Employees and Former Employees for all
periods prior to the Effective Time but not thereafter.
(d) Severance and Other Liability. Buyer shall pay an amount to
Sellers equal to the sum of (i) the excess of the "accumulated benefit
obligation" of each of the MascoTech, Inc. Pension Plan and MascoTech,
Inc. Master Hourly Employees Pension Plan attributable to Employees and
Former Employees, over the amount of assets of each such plan
attributable to Employees and Former Employees, all calculated as of
the Effective Time, and (ii) the FAS 87 service cost resulting from
Sellers' agreement to credit additional service and compensation set
forth in Section 7.6(b)(i) hereof (determined using the actuarial
assumptions and methods utilized by Sellers in determining the service
cost for such plans). Such "accumu-
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lated benefit obligation" for each such plan shall be computed
using a discount rate of 6.75%, compounded annually and the other
actuarial assumptions and methods utilized by Sellers in determining
the "accumulated benefit obligation" of such plans for FAS 87 purposes
as of the Effective Time. The amount of plan assets allocable to the
Employees and Former Employees shall be determined by multiplying the
actual fair market value of the assets of each plan at the Effective
Time by a fraction, the numerator of which is the "accumulated benefit
obligation" (determined as set forth above) of the applicable plan
attributable to the Employees and Former Employees (the "BUYER'S ABO"),
and the denominator of which is the sum of the Buyer's ABO and the
"projected benefit obligation" (computed using a discount rate of
6.75%, compounded annually and the other actuarial assumptions and
methods utilized by Seller in determining the "projected benefit
obligation" of such plans for FAS 87 purposes as of the Effective Time)
attributable to participants and former participants in the plan other
than the Employees and Former Employees. The computations shall be made
by Sellers' actuary, and they shall be subject to review in accordance
with the procedure set forth in Section 7.6(b)(v) above. Following
final agreement on the calculations described herein, Sellers shall
remit to the Buyer or the Buyer shall remit to Sellers, as appropriate,
an amount equal to the difference between the actual amount owed and
the estimated amount transferred as of Closing Date (such difference to
be adjusted for investment earnings at the State Street Bank short-term
rate for the period between the Closing Date and the date such
difference is paid to Seller or Buyer).
(e) Worker's Compensation Claims. The Buyer shall assume
liability for all suits, claims, proceedings and actions pending as of
or commenced after the Effective Time resulting from actual or alleged
harm or injury to Employees or Former Employees regardless of when the
incident or accident giving rise to such liability occurred or occurs.
Buyer shall make all necessary arrangements to assume all worker's
compensation claim files, whether open or closed, as of the Effective
Time, and Buyer shall make the necessary arrangements for assuming the
continued management of such liabilities.
(f) Welfare Benefit Plans. (i) Coverage for all Transferred
Employees and Former Employees (the "COVERED EMPLOYEES") and their
respective eligible dependents under the welfare benefit plans (as
defined in Section 3(1) of ERISA) maintained by the Sellers or their
Affiliates for the benefit of Employees prior to the Closing Date (the
"SELLER WELFARE PLANS") shall terminate effective as of the Effective
Time. Subject to the satisfaction of any conditions, limitations or
waiting periods referred to in subsection (ii) below, the welfare
benefit plans (as defined in Section 3(1) of ERISA) maintained by Buyer
or its Affiliates (the "BUYER WELFARE PLANS") shall provide coverage
and benefits to such Covered Employees (and the eligible dependents of
such Covered Employees) in substantially the same manner as provided by
seller prior to the Effective Time. The Seller Welfare Plans shall be
liable only for claims incurred prior to the Effective Time, and the
Buyer shall be liable for any claims incurred by Covered Employees (and
the eligible dependents of such Covered Employees) after the Effective
Time. The Covered Employees shall be entitled to apply deductibles and
out of pocket payments expended for covered medical and dental expenses
under the Seller Welfare Plans in the plan fiscal year ending December
31, 2003, to the deductibles and out of pocket maximums under the Buyer
Welfare Plans, if any, for the plan fiscal year which ends on December
31, 2003. If requested by the Buyer, the Sellers shall furnish the
Buyer with a schedule setting forth the deductibles and out of pocket
maximums for each Covered Employee. The Seller Welfare Plans shall be
liable only for claims incurred prior to or as of the Effective Time,
and the Sellers shall be liable for any claims incurred by Covered
Employees (and the eligible dependents of such Covered Employees) under
the Buyer Welfare Plans after the Effective Time.
(ii) No pre-existing condition limitations, exclusions or
waiting periods applicable with respect to life and accident death and
dismemberment insurance, disability, sickness and accident and medical
benefits under the Buyer Welfare Plan shall apply to the Covered
Employees to the extent that such limitations, exclusions or waiting
periods exceed those in effect under the Seller Welfare Plans as of the
Effective Time.
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(g) To the extent that Buyer or Sellers are unable to, with
reasonably diligent effort and at reasonable expense, perform their
obligations in the manner contemplated by this Section 7.6, Buyer and
Sellers shall cooperate in order to achieve the most economic transfer
reasonably practicable and Buyer on the one hand and Sellers on the
other agree to indemnify each other for any incremental expenses
incurred by the other as a result of any accommodation by either such
party from the respective responsibilities assigned to the parties by
this Section 7.6.
SECTION 7.7. INFORMATION; COOPERATION. If after the Closing, in
order properly to prepare documents or reports required to be filed with
Governmental Authorities or financial statements, it is necessary that Buyer or
Sellers be furnished with additional information relating to the Acquired
Business and such information is in possession of any party hereto, such party
will use its reasonable efforts to furnish, or cause to be furnished, such
information to the party requesting information.
SECTION 7.8. FURTHER ASSURANCES. In case at any time after the
Closing Date any further action is necessary or desirable to fully and
effectively transfer the benefits of the Purchased Assets to Buyer and to fully
and effectively provide for the assumption of the Assumed Liabilities by Buyer
or otherwise to carry out the purposes of this Agreement, the proper officers
and directors of Buyer and Sellers shall execute such further documents
(including assignments, acknowledgments and consents and other instruments of
transfer) and shall take and cause their respective employees and agents to take
such further actions as may be necessary or desirable in order to carry out the
intent of this Agreement.
ARTICLE VIII.
CONDITIONS TO OBLIGATIONS OF EACH PARTY
The obligations of Buyer and Sellers to consummate the
Transactions are subject to the satisfaction of the following conditions:
(a) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation
of the Closing;
(b) no court, arbitrator or Governmental Authority shall have issued
any order, and there shall not be any statute, rule or regulation,
restraining or prohibiting the consummation of the Closing or the
effective operation of any material portion of the Acquired Business
after the Closing Date;
(c) all licenses, permits, qualifications, consents, waivers,
approvals, authorizations or orders required to permit the consummation
of the Closing shall have been obtained and made, except where the
failure to receive such licenses, permits, qualifications, consents,
waivers, approvals, authorizations or orders, individually or in the
aggregate with all other such failures, would not be reasonably
expected to have a Material Adverse Effect (either before or after
giving effect to the Transactions).
SECTION 8.2. CONDITIONS TO THE OBLIGATIONS OF BUYER. The obligations
of Buyer to consummate the Closing are subject to the satisfaction of the
following further conditions:
(a) (i) Sellers shall have performed in all material respects all of
their obligations hereunder required to be performed by them at or
prior to the Closing, (ii) the representations and warranties of
Sellers contained in this Agreement and in any certificate or other
writing delivered by Sellers pursuant hereto that are qualified by
materiality or Material Adverse Effect shall be true, and all other
such representations
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and warranties of Seller shall be true in all material respects, in
each case at and as of the Closing Date as if made at and as of the
Closing Date (except to the extent that a representation or warranty
expressly speaks as of a specified date or period of time), and (iii)
Buyer shall have received a certificate signed by a duly authorized
officer of Metaldyne to the foregoing effect; and
(b) all actions shall have been taken, or consents obtained, with
respect to permits, licenses, authorizations and contracts relating to
the Purchased Assets such that the Closing of the Transactions will not
constitute a default under or cause or permit the termination,
cancellation, acceleration or other change of any right or obligation
or the loss of any benefit to which the Buyer would be entitled under
any provision of any agreement or other instrument to be transferred to
Buyer hereby or relating to the Acquired Business except for such
failures to obtain any such consent or other action, defaults,
terminations, cancellations, accelerations, changes or losses that
would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect;
(c) Buyer shall have obtained debt or equity financing on terms and
conditions reasonably satisfactory to it sufficient to pay the Purchase
Price and related fees and expenses; and
(d) Buyer shall have received the Buyer Fairness Opinion in form and
substance reasonably satisfactory to Buyer and such opinion shall be in
full force and effect as of the Closing Date.
SECTION 8.3. CONDITIONS TO THE OBLIGATIONS OF SELLERS. The
obligations of Sellers to consummate the Closing are subject to the satisfaction
of the following further conditions:
(a) (i) Buyer shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to
the Closing, (ii) the representations and warranties of Buyer contained
in this Agreement and in any certificate or other writing delivered by
Buyer pursuant hereto that are qualified by materiality shall be true,
and all other such representations or warranties of Buyer shall be true
in all material respects, in each case at and as of the Closing Date as
if made at and as of the Closing Date (except to the extent that a
representation or warranty expressly speaks as of a specified date or
period of time), and (iii) Sellers shall have received a certificate
signed by a duly authorized officer of Buyer to the foregoing effect;
(b) the Transactions shall have been approved in accordance with the
terms of the Seller Shareholder Agreement; and
(c) Sellers shall have received the Seller Fairness Opinion in form
and substance reasonably satisfactory to Seller and such opinion shall
be in full force and effect as of the Closing Date.
ARTICLE IX.
OBLIGATIONS AFTER CLOSING
SECTION 9.1. INDEMNIFICATION.
(a) Indemnification by Sellers. Subject to the other provisions of
this Article VIII, Sellers shall jointly and severally indemnify Buyer and its
directors, officers, managers, members, employees and agents (collectively, the
"BUYER INDEMNIFIED PARTIES") from and against and shall reimburse such Buyer
Indemnified Parties in respect of any and all Losses resulting from or arising
out of (i) any Excluded Liabilities (whether arising
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prior to or after the Closing), (ii) the failure of Sellers to perform any of
their obligations under this Agreement in any material respect or any breach of
any representation or warranty of Sellers in this Agreement, (iii) all
Liabilities arising out of the business, operations and assets of Sellers' and
their Subsidiaries after the Closing and (iv) the breach of any representation,
warranty or covenant of Metaldyne LLC in the Fittings Facility Sublease.
(b) Indemnification by Buyer. Except as otherwise provided in
Sections 7.6 and subject to the other provisions of this Article 8, Buyer shall
indemnify Sellers, their Subsidiaries and their present and former directors,
officers, managers, members, employees and agents (collectively, the "SELLER
INDEMNIFIED PARTIES") from and against and shall reimburse such Seller
Indemnified Parties in respect of any and all Losses resulting from or arising
out of (i) any of the Assumed Liabilities (whether arising prior to or after the
Closing), (ii) the failure of Buyer to perform any of its obligations under this
Agreement in any material respect or any breach of any representation or
warranty of Buyer in this Agreement, and (iii) all Liabilities arising out of
the business, operations and assets of Buyer and its Subsidiaries after the
Closing.
SECTION 9.2. PROCEDURES. The party seeking indemnification under
Section 9.1 (the "INDEMNIFIED PARTY") agrees to give prompt notice to the party
against whom indemnity is sought (the "INDEMNIFYING PARTY") of the assertion of
any claim or the commencement of any suit, action or proceeding in respect of
which indemnity may be sought under such Section. The Indemnifying Party may at
the request of the Indemnified Party participate in and control the defense of
any such suit, action or proceeding at its own expense. The Indemnifying Party
shall not be liable under Section 9.1 for any settlement effected without its
consent of any claim, litigation or proceeding in respect of which indemnity may
be sought hereunder.
SECTION 9.3. LIMITATIONS ON INDEMNIFICATION. (a) Sellers shall have
no obligation to indemnify any Buyer Indemnified Party from and against any
Losses until the aggregate Losses suffered by all Buyer Indemnified Parties
exceed $25,000, at which time Sellers shall be liable to the Buyer Indemnified
Parties for the entire amount of all aggregate Losses suffered by all Buyer
Indemnified Parties.
(b) Buyer shall have no obligation to indemnify any Seller
Indemnified Party from and against any Losses until the aggregate Losses
suffered by all Seller Indemnified Parties exceed $25,000, at which time Buyer
shall be liable to the Seller Indemnified Parties for the entire amount of all
aggregate Losses suffered by all Seller Indemnified Parties.
(c) There shall be no time limit on claims under this Agreement.
(d) The liability of Sellers or Buyer under this Article VIII shall
be reduced by an amount equal to (i) any net Tax Benefit realized by the
Indemnified Party (resulting from any Loss suffered by the Indemnified Party
that forms the basis of the Indemnifying Party's obligation hereunder), giving
effect to any Tax liabilities of the Indemnified Party arising as a result of
any payments made by an Indemnifying Party with respect to such claim for
indemnification; and (ii) the value of any insurance benefit realized by the
Indemnified Party in connection with any Loss suffered by such Person that forms
the basis of the Indemnifying Party's obligation hereunder. Buyer and each
Seller shall use its commercially reasonable efforts to pursue any insurance
benefits covering any Loss suffered by any Indemnified Party that forms the
basis of such Indemnified Party's claim against such Indemnifying Party.
(e) Each party agrees that from and after the Closing, its sole
remedy with respect to any claims for money damages relating to the Transactions
or the subject matter of this Agreement shall be pursuant to the express
indemnification provisions set forth in this Agreement.
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ARTICLE X.
TERMINATION
SECTION 10.1. TERMINATION. This Agreement may be terminated at any
time prior to the Closing:
(a) by mutual written agreement of Buyer and Metaldyne; or
(b) by either Buyer or Metaldyne, if:
(i) the Closing has not been consummated on or before June 30,
2003 (the "END DATE"), provided that the right to terminate this
Agreement pursuant to this Section 10.1(b)(i) shall not be available
to any party whose breach of any provision of this Agreement results
in the failure of the Transactions to be consummated by such time;
(ii) there shall be any law or regulation that makes
consummation of the Transactions illegal or otherwise prohibited or
any judgment, injunction, order or decree of any Governmental
Authority having competent jurisdiction enjoining Buyer or any
Seller from consummating the Transactions is entered and such
judgment, injunction, order or decree shall have become final and
nonappealable; or
(c) by Buyer, if a breach of or failure to perform any
representation, warranty, covenant or agreement set forth in this Agreement
shall have occurred that would cause the condition set forth in Section 8.2(a)
hereof not to be satisfied, and such condition is incapable of being satisfied
by the End Date; or
(d) by Metaldyne, if a breach of or failure to perform any
representation, warranty, covenant or agreement on the part of Buyer set forth
in this Agreement shall have occurred that would cause the condition set forth
in Section 8.3(a) hereof not to be satisfied, and such condition is incapable of
being satisfied by the End Date.
The party desiring to terminate this Agreement pursuant to
this Section 10.1 (other than pursuant to Section 10.1(a)) shall give notice of
such termination to the other parties.
SECTION 10.2. EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 10.1 hereof, this Agreement shall become void and of no
effect without liability of any party (or any stockholder, member, manager,
director, officer, employee, agent, consultant or representative of such party)
to the other parties hereto. The provisions of Sections 7.5, 11.6 and 11.7 shall
survive any termination hereof pursuant to Section 10.1.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
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if to Buyer, to:
TriMas Corporation
39400 North Woodward Avenue, Suite 130
Bloomfield Hills, Michigan 48304
Fax: (248) 631-5455
Attn: General Counsel
if to any Seller, to it, care of:
Metaldyne Corporation
47603 Halyard Drive
Plymouth, Michigan 48170
Fax: (734) 207-6729
Attn: General Counsel
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m., and such day is
a Business Day in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding Business Day in the place of receipt.
SECTION 11.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties and agreements contained herein and in any
certificate or other writing delivered pursuant hereto shall not survive the
Closing Date of this Agreement, except for the agreements set forth in Sections
2.1, 2.2, 2.4, 7.4, 7.5, 7.6, 7.7, 7.8, Article IX and Article XI.
SECTION 11.3. AMENDMENTS; NO WAIVERS. (a) Any provision of this
Agreement may be amended or waived prior to the Closing Date if, but only if,
such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement or, in the case of a waiver, by each
party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 11.4. EXPENSES. Except as otherwise provided for in this
Agreement, all costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such cost or expense.
SECTION 11.5. SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto, except that Buyer may
transfer or assign, from time to time in whole or in part, to one or more of its
Subsidiaries, the right to purchase the Purchased Assets, employ the Transferred
Employees and assume the Assumed Liabilities hereunder, but any such transfer or
assignment will not relieve Buyer of its obligations owed hereunder to Sellers
(it being understood, however, that Buyer shall not have any obligation to any
third party with respect to any assets, liabilities or employees assigned by it
prior to the Closing). Any such assignee shall, by virtue of purchasing the
Purchased Assets, be deemed to have made severally, with respect to itself, the
representations and warranties set forth in Article V hereof.
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SECTION 11.6. GOVERNING LAW. The validity, construction and effect
of this Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without giving effect to the principles
of conflicts of law of such state.
SECTION 11.7. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS.
SECTION 11.8. COUNTERPARTS; EFFECTIVENESS. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto. No
provision of this Agreement is intended to confer any rights, benefits,
remedies, obligations or liabilities hereunder upon any Person other than the
parties hereto and their respective successors and assigns.
SECTION 11.9. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter of this
Agreement and supersedes agreements and understandings, both oral and written,
between the parties with respect to the subject matter of this Agreement.
Exhibits referred to herein are incorporated by reference herein and shall
constitute a part of this Agreement.
SECTION 11.10. CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 11.11. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Upon such a determination, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the Transactions be consummated as
originally contemplated to the fullest extent possible.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
TRIMAS CORPORATION
By: /s/ Todd R. Peters
---------------------------------
Name: Todd R. Peters
Title: Executive Vice President
METALDYNE CORPORATION
By: /s/ Karen A. Radtke
---------------------------------
Name: Karen A. Radtke
Title: Treasurer
METALDYNE COMPANY LLC
By: /s/ Karen A. Radtke
---------------------------------
Name: Karen A. Radtke
Title: Vice President and
Treasurer
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