EXHIBIT 2.5
AMENDED AND RESTATED
CANADIAN ASSET PURCHASE AGREEMENT
BY AND AMONG
NEWELL RUBBERMAID INC.
NEWELL INDUSTRIES CANADA INC
LIBBEY INC.
AND
LIBBEY CANADA INC.
DATED AS OF JANUARY 21, 2002
E-121
TABLE OF CONTENTS
PAGE
1. TRANSFER OF CANADIAN ASSETS AND ASSUMPTION OF CANADIAN LIABILITIES 124
(a) TRANSFER OF CANADIAN ASSETS 124
(b) EXCLUDED CANADIAN ASSETS 125
(c) ASSUMPTION OF LIABILITIES 125
(d) EXCLUDED CANADIAN LIABILITIES 125
2. CANADIAN PURCHASE PRICE; ALLOCATION OF CANADIAN PURCHASE PRICE 125
(a) CANADIAN PURCHASE PRICE 125
(b) ALLOCATION OF CANADIAN PURCHASE PRICE 126
3. CANADIAN CLOSING 126
4. DOCUMENTS TO BE DELIVERED AT THE CANADIAN CLOSING 126
(a) DELIVERIES OF CANADIAN SELLER 126
(b) CANADIAN PURCHASER'S DELIVERIES 126
(c) GENERAL DELIVERIES 126
5. CONDITIONS TO CANADIAN CLOSING 126
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND CANADIAN SELLER 127
(a) ORGANIZATION OF CANADIAN SELLER 127
(b) AUTHORIZATION OF TRANSACTION AND VALIDITY OF AGREEMENT 127
(c) RESIDENCE OF CANADIAN SELLER 127
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND CANADIAN PURCHASER 127
(a) ORGANIZATION OF CANADIAN PURCHASER 127
(b) AUTHORIZATION OF TRANSACTION AND VALIDITY OF AGREEMENT 127
8. CANADIAN EMPLOYEES 127
(a) DEFINITIONS 128
(b) INDEMNITY 128
9. EXPENSES; TRANSFER TAXES 128
E-122
10. INDEMNIFICATION 129
11. BULK SALES INDEMNITY 129
12. TERMINATION 129
13. APPLICATION OF PROVISIONS OF THE PURCHASE AGREEMENT 129
14. ASSIGNMENT 130
15. NOTICES 130
16. GOVERNING LAW; CONSENT TO JURISDICTION 131
17. SEVERABILITY 132
18. FURTHER ASSURANCES 133
19. MISCELLANEOUS 133
SCHEDULE 1(a) Canadian Assets
SCHEDULE 1(b) Excluded Canadian Assets
SCHEDULE 1(c) Canadian Liabilities
SCHEDULE 1(d) Excluded Canadian Liabilities
SCHEDULE 2(e) Allocation of Canadian Purchase Price
EXHIBIT A Bill of Sale
EXHIBIT B Assumption Agreement
E-123
AMENDED & RESTATED
------------------
CANADIAN ASSET PURCHASE AGREEMENT
---------------------------------
This AMENDED & RESTATED CANADIAN ASSET PURCHASE AGREEMENT
(this "AGREEMENT") is entered into as of this 21st day of January, 2002, by and
among NEWELL RUBBERMAID INC., a Delaware corporation ("PARENT"), NEWELL
INDUSTRIES CANADA INC., a corporation organized and existing under the laws of
the province of Ontario, Canada ("CANADIAN SELLER"), LIBBEY INC., a Delaware
corporation ("PURCHASER"), and LIBBEY CANADA INC., a corporation organized and
existing under the laws of the province of Ontario, Canada ("CANADIAN
PURCHASER").
WITNESSETH:
WHEREAS, Parent, Newell Holdings Delaware (f/k/a Anchor
Hocking Corporation) a Delaware corporation, Anchor Hocking Inc. (f/k/a
Menagerie Corporation), a Delaware corporation ("NEWCO"), Newell Operating
Company, a Delaware corporation and Purchaser have entered into that certain
Stock Purchase Agreement dated as of June 17, 2000, as amended and restated as
of the date hereof (the "PURCHASE AGREEMENT"), for the sale by Seller to
Purchaser of all of the issued and outstanding common stock of Newco;
WHEREAS, the parties desire for Parent or its Affiliates to
retain and not to sell the Companies' Food Service Business and to continue to
conduct the Food Service Business (the "RETENTION");
WHEREAS, Purchaser shall acquire the Business (as defined in
the Purchase Agreement) and not the Food Service Business;
WHEREAS, Parent desires to cause Canadian Seller to transfer
to Canadian Purchaser certain assets relating primarily to the Business and
located in Canada;
WHEREAS, Canadian Purchaser desires to assume certain
liabilities of Canadian Seller relating exclusively to the Business on the terms
and subject to the conditions hereinafter set forth;
WHEREAS, the parties desire to amend and restate their
Canadian Asset Purchase Agreement dated as of June 17, 2001 as hereinafter set
forth to give effect to the Retention and certain other agreements and
understandings of the parties; and
NOW, THEREFORE, in consideration of the respective
representations, warranties, covenants, agreements and premises contained herein
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. TRANSFER OF CANADIAN ASSETS AND ASSUMPTION OF CANADIAN
LIABILITIES.
E-124
(a) TRANSFER OF CANADIAN ASSETS.
Upon the terms and subject to the conditions of this Agreement
and the Purchase Agreement, Canadian Seller hereby agrees to sell, assign,
transfer and convey to Canadian Purchaser at the Canadian Closing (as
hereinafter defined), and Canadian Purchaser hereby agrees to acquire from
Canadian Seller, all of Canadian Seller's right, title and interest in and to
the assets, rights, privileges, Permits and Contracts relating primarily to or
held for use primarily in connection with the Business and located in Canada and
owned by Canadian Seller at the Canadian Closing including, without limitation,
all of such assets set forth on SCHEDULE 1(a) of this Agreement and all of the
assets located in Canada reflected in the Final Closing Net Working Capital but
excluding any assets held under any Benefit Plan (collectively, the "CANADIAN
ASSETS"); PROVIDED, HOWEVER, with respect to any Contracts included in the
Canadian Assets, the sale, assignment, transfer and conveyance shall be subject
to SECTION 4.21 of the Purchase Agreement. Notwithstanding the foregoing, the
Canadian Assets shall not include any of the Excluded Canadian Assets.
(b) EXCLUDED CANADIAN ASSETS. Notwithstanding any of the other
provisions of this Agreement, Canadian Seller shall retain, and shall not
transfer to Canadian Purchaser hereunder or otherwise the assets, rights,
privileges, Permits and Contracts listed on SCHEDULE 1(B) of this Agreement (the
"EXCLUDED CANADIAN ASSETS").
(c) ASSUMPTION OF LIABILITIES.
Upon the terms and subject to the conditions of this Agreement
and the Purchase Agreement, Canadian Purchaser hereby agrees to assume from
Canadian Seller at the Canadian Closing, and hereby agrees to pay, honor and be
fully liable for, all of Canadian Seller's Liabilities relating exclusively to
the Business, including, without limitation, all of the Liabilities set forth on
SCHEDULE 1(c) of this Agreement and all of the Liabilities reflected in the
Final Closing Net Working Capital (collectively, the "CANADIAN LIABILITIES").
The assumption by the Canadian Purchaser of the Canadian Liabilities shall not
be construed to defeat, impair or limit in any way Canadian Purchaser's rights
or remedies to, in good faith, dispute the validity or amount of any such
Liability as against any party other than Parent, Canadian Seller or any of
their Affiliates. Notwithstanding the foregoing, the Canadian Liabilities shall
not include the Excluded Canadian Liabilities.
(d) EXCLUDED CANADIAN LIABILITIES. Notwithstanding any other
provision of this Agreement, Canadian Purchaser shall not assume, incur or
otherwise be responsible for any Liabilities of Seller, other than the Canadian
Liabilities, whether actual or contingent, matured or unmatured, liquidated or
unliquidated, or known or unknown, whether arising out of the occurrences prior
to, at or after the date hereof and in no event, shall Canadian Purchaser
assume, incur or otherwise be responsible for (i) any Liabilities whatsoever
under or related to any Benefit Plans, (ii) any Liabilities related to the
Excluded Canadian Assets, (iii) any Liabilities of Seller to the extent (A)
related to the Food Service Business and (B) arising on or prior to the Canadian
Closing or arising out of an event, circumstance or condition existing prior to
the Canadian Closing and (iv) any Liabilities set forth on SCHEDULE 1(d) of this
Agreement (collectively, the "EXCLUDED CANADIAN LIABILITIES").
E-125
2. CANADIAN PURCHASE PRICE; ALLOCATION OF CANADIAN PURCHASE
PRICE.
(a) CANADIAN PURCHASE PRICE. In full consideration of the
sale, conveyance, assignment and transfer of the Canadian Assets to Canadian
Purchaser, (a) Purchaser will pay to Parent a purchase price (the "CANADIAN
PURCHASE PRICE") in immediately available federal funds in an amount equal to
USD$2,000,000.00, such amount to be paid in U.S. dollars by wire transfer to a
bank account designated by Parent in writing prior to the Canadian Closing, and
(b) Canadian Purchaser will assume the Canadian Liabilities as of the Closing
Date.
(b) ALLOCATION OF CANADIAN PURCHASE PRICE.
The Canadian Purchase Price will be allocated among the
Canadian Assets in accordance with the provisions of SCHEDULE 2(b) attached
hereto. Each party to this Agreement agrees that it will not take any position
that varies from or is inconsistent with such allocation in any filing made by
such party for foreign, federal, state, provincial or local income tax purposes.
3. CANADIAN CLOSING. The consummation of the sale, conveyance,
assignment and transfer of the Canadian Assets, the assumption of the Canadian
Liabilities and the payment of the Canadian Purchase Price contemplated by this
Agreement (the "CANADIAN CLOSING") will take place simultaneously with the
Closing as set forth in SECTION 1.5 of the Purchase Agreement, such closing to
be held at the offices of Latham & Watkins, 233 S. Wacker Drive, Sears Tower,
Suite 5800, Chicago, Illinois or such other place as Canadian Seller and
Canadian Purchaser agree upon in writing. At the Canadian Closing, Canadian
Seller and Canadian Purchaser will make their respective deliveries provided for
in SECTION 4 of this Agreement.
4. DOCUMENTS TO BE DELIVERED AT THE CANADIAN CLOSING.
(a) DELIVERIES OF CANADIAN SELLER.
At the Canadian Closing, Canadian Seller will deliver to
Canadian Purchaser a bill of sale, substantially in the form attached hereto as
EXHIBIT A, and all other documents required to be delivered by Parent and
Canadian Seller hereunder and under the Purchase Agreement.
(b) CANADIAN PURCHASER'S DELIVERIES.
At the Canadian Closing, Canadian Purchaser will deliver to
Canadian Seller an assumption agreement with respect to the Canadian Liabilities
substantially in the form attached hereto as EXHIBIT B, and all other documents
required to be delivered by Purchaser and Canadian Purchaser hereunder and under
the Purchase Agreement.
(c) GENERAL DELIVERIES.
E-126
At the Canadian Closing, all instruments of conveyance and
other documentation relating to the sale and purchase of the Canadian Assets
shall be reasonably satisfactory to Canadian Purchaser and Canadian Seller, and
each of Canadian Purchaser and Canadian Seller shall have received copies of all
such documentation or other evidence as it may reasonably request in order to
establish the consummation of the transactions contemplated by this Agreement
and the taking of all corporate proceedings in connection with such transactions
in compliance with these conditions, in form (as to certification and otherwise)
and substance reasonably satisfactory to Canadian Purchaser or Canadian Seller,
as the case may be.
5. CONDITIONS TO CANADIAN CLOSING.
The respective obligations of Canadian Seller and Parent and
Canadian Purchaser and Purchaser to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction (or waiver) by the
applicable parties, at or prior to the Closing, of the conditions set forth in
Sections 7.1 and 7.2 of the Purchase Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND CANADIAN
SELLER.
(a) ORGANIZATION OF CANADIAN SELLER.
Canadian Seller is a corporation duly organized, validly
existing and in good standing under the laws of the Province of Ontario, Canada
and is registered for G.S.T. purposes.
(b) AUTHORIZATION OF TRANSACTION AND VALIDITY OF AGREEMENT.
Parent and Canadian Seller have all requisite power and
authority to execute and deliver this Agreement and to perform their obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the board of directors of Parent and Canadian Seller and no other corporate
proceedings on the part of Parent or Canadian Seller are necessary to authorize
this Agreement and to consummate the transactions so contemplated. This
Agreement has been duly and validly executed and delivered by Parent and
Canadian Seller and (assuming it is duly and validly executed by Purchaser and
Canadian Purchaser) constitutes a valid and binding agreement of Parent and
Canadian Seller, enforceable against Parent and Canadian Seller in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by general equitable principles.
(c) RESIDENCE OF CANADIAN SELLER.
Canadian Seller is not a non-resident of Canada for the
purposes of the Income Tax Act (Canada).
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND CANADIAN
PURCHASER.
E-127
(a) ORGANIZATION OF CANADIAN PURCHASER.
Canadian Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the Province of Ontario, Canada
and is registered for G.S.T. purposes.
(b) AUTHORIZATION OF TRANSACTION AND VALIDITY OF AGREEMENT.
Purchaser and Canadian Purchaser have all requisite power and
authority to execute and deliver this Agreement and to perform their obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the board of directors of Purchaser and Canadian Purchaser and no other
corporate proceedings on the part of Purchaser or Canadian Purchaser are
necessary to authorize this Agreement and to consummate the transactions so
contemplated. This Agreement has been duly and validly executed and delivered by
Purchaser and Canadian Purchaser and (assuming it is duly and validly executed
by Parent and Canadian Seller) constitutes a valid and binding agreement of
Purchaser and Canadian Purchaser, enforceable against Purchaser and Canadian
Purchaser in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally and by general equitable principles.
8. CANADIAN EMPLOYEES.
(a) DEFINITIONS. For the purpose of this Agreement the
following definitions shall apply:
"BENEFIT PLANS" means plans, arrangements, agreements,
programs, policies, practices or undertakings, whether oral or written, formal
or informal, funded or unfunded, registered or unregistered to which the
Canadian Seller is a party or by which the Canadian Seller is bound or under
which the Canadian Seller has, or will have, any liability or contingent
liability, relating to:
(i) Pension Plans;
(ii) plans in the nature of insurance plans, providing for
employment benefits relating to disability or wage or benefits continuation
during periods of absence from work (including, short term disability, long term
disability, workers compensation and maternity and parental leave), and any and
all employment benefits relating to hospitalization, healthcare, medical or
dental treatments or expenses, life insurance, accidental death and
dismemberment insurance, death or survivor's benefits and supplementary
employment insurance, in each case regardless of whether or not such benefits
are insured or self-insured; or
(iii) plans in the nature of compensation plans, which
means all employment benefits relating to bonuses, incentive pay or
compensation, performance compensation, deferred compensation, profit sharing or
deferred profit sharing, share purchase, share option, stock appreciation,
phantom stock, vacation or vacation pay, sick pay, severance or termination pay,
E-128
pension, employee loans or separation from service benefits, or any other type
of arrangement providing for compensation or benefits additional to base pay or
salary;
with respect to any of the Canadian Employees or former
employees who performed services for the Business (or any spouses, dependants,
survivors or beneficiaries of any such Business Employees or former employees),
individuals working on contract with the Canadian Seller with respect to the
Business or other individuals providing services to it of a kind normally
provided by employees or eligible dependants of such Person.
"CANADIAN EMPLOYEES" means the employees or sales
representatives (whether salaried or not) of the Canadian Seller who perform
services exclusively for the Business.
"PENSION PLANS" means all benefits relating to the retirement
or retirement savings including pension plans, pensions or supplemental
pensions.
(b) INDEMNITY. Canadian Seller and Parent agree to jointly and
severally indemnify and hold harmless the Canadian Purchaser from and against
any and all Actions or Liabilities that Canadian Purchaser may incur in
connection with or arising out of any action or alleged actions taken by
Canadian Seller at any time with respect to the Benefit Plans or with respect to
the operation and administration thereof, or arising out of any benefit claims
and liabilities under the Benefit Plans or with respect to the Canadian
Employees.
9. EXPENSES; TRANSFER TAXES.
(a) Except as otherwise specified in SECTION 11.1 of the
Purchase Agreement, all costs and expenses, including fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated by this Agreement and thereby shall
be paid by the party incurring such costs and expenses, whether or not the
Canadian Closing shall have occurred.
(b) The payment of all transfer, documentary, sales, use,
stamp, registration and other such Taxes (including all applicable real estate
transfer or gains Taxes) and related fees (including any penalties, interest and
additions to Tax) incurred in connection with this Agreement and the
transactions contemplated by this Agreement and the preparation and filing of
all Tax Returns and other documentation on a timely basis as may be required to
comply with the provisions of such Tax laws shall be governed by SECTION 6.7 of
the Purchase Agreement.
10. INDEMNIFICATION.
Together with SECTION 8(b) of this Agreement, the
indemnification provided in ARTICLE VIII of the Purchase Agreement shall be the
sole and exclusive remedy of any party hereto with respect to this Agreement and
the transactions contemplated hereby.
11. BULK SALES INDEMNITY.
Canadian Purchaser shall not require Canadian Seller to comply
with the requirements of the Bulk Sales Act (Ontario) or such other comparable
legislation in the other
E-129
Provinces of Canada as may be applicable to the transfer of Canadian Assets.
Notwithstanding the foregoing, Parent and Canadian Seller hereby jointly and
severally agree to indemnify and save harmless Purchaser and Canadian Purchaser
from and against any claims, losses and expenses which are brought against
Purchaser or Canadian Purchaser or which Purchaser or Canadian Purchaser may
suffer or incur as a result of such non-compliance.
12. TERMINATION.
In the event that the Purchase Agreement is
terminated in accordance with its terms, this Agreement shall immediately become
void and of no further effect and there shall be no liability on the part of any
party hereto, except for any willful breach of this Agreement occurring prior to
any such termination and as provided for in SECTION 9.2 of the Purchase
Agreement.
13. APPLICATION OF PROVISIONS OF THE PURCHASE AGREEMENT.
(a) Unless otherwise stated herein, all provisions of the
Purchase Agreement shall apply to the sale, assignment, transfer and conveyance
of the Canadian Assets and the assumption of the Canadian Liabilities.
(b) To the extent that the Purchase Agreement is amended,
modified, waived or extended, the parties hereto agree to take all necessary
steps to incorporate such amendment, modification, waiver or extension in this
Agreement in the form required by Law, to the extent applicable.
(c) Capitalized terms not otherwise defined in this
Agreement shall have the meaning set forth in the Purchase Agreement.
(d) In the event of any conflict between the terms of
this Agreement and the Purchase Agreement, the terms of the Purchase Agreement
shall prevail.
(e) References in this Agreement to a clause, schedule,
exhibit, annex or part thereof refer to the clause, schedule, exhibit, annex or
part thereof in this Agreement unless otherwise indicated.
14. ASSIGNMENT.
This Agreement may not be assigned by operation of law or
otherwise by Parent or Canadian Seller without the prior written consent of
Purchaser (which consent may be granted or withheld in the sole discretion of
Purchaser). This Agreement may not be assigned by operation of law or otherwise
by Canadian Purchaser without the prior written consent of Parent (which consent
may be granted or withheld in the sole discretion of Parent), EXCEPT, Canadian
Purchaser may, without prior consent of any other party hereto, transfer or
assign by operation of law or otherwise this Agreement to any Affiliate or
subsidiary of Canadian Purchaser or Purchaser, PROVIDED that in the event
Canadian Purchaser assigns all or a portion of its rights and obligations under
this Agreement, Purchaser hereby unconditionally and irrevocably guarantees to
the other parties hereto the prompt and full discharge by such subsidiary or
Affiliate of all of
E-130
Canadian Purchaser's obligations under this Agreement in accordance with the
terms hereof. Purchaser also hereby agrees that, if such subsidiary or Affiliate
fails to perform and discharge promptly all such obligations and liabilities in
accordance with such terms, Purchaser will, forthwith, perform and discharge the
same. The unconditional obligation of Purchaser hereunder will not be affected,
impaired or released by any termination or expiration hereof or by any
extension, waiver, amendment or other circumstance whatsoever that would release
a guarantor. Any attempted assignment in violation of this SECTION 14 shall be
null and void.
15. NOTICES.
Any notices or other communications required or permitted
under, or otherwise in connection with this Agreement will be in writing and
will be deemed to have been duly given when delivered in person or upon
confirmation of receipt when transmitted by facsimile transmission (but only if
followed by transmittal by national overnight courier or hand delivery on the
next Business Day) or on receipt after dispatch by registered or certified mail,
postage prepaid, addressed, or on the next Business Day if transmitted by
national overnight courier, in each case as follows:
if to Canadian Seller or Parent:
Newell Rubbermaid Inc.
6833 Stalter Drive
Suite 101
Rockford, IL 61108
Telecopy: (815) 381-8160
Attention: Dale L. Matschullat
Vice-President - General Counsel;
Newell Rubbermaid Inc.
6833 Stalter Drive
Suite 101
Rockford, IL 61108
Telecopy: (815) 381-8134
Attention: Andrea L. Horne
Vice-President - Corporate Development
with a copy to:
Schiff Hardin & Waite
6600 Sears Tower
Chicago, IL 60606
Telecopy:(312) 258-5700
Attention: Frederick L. Hartmann, Jr.
if to Purchaser or Canadian Purchaser:
E-131
Libbey Inc.
300 Madison Avenue
PO Box 10060
Toledo, OH 43604-1561
Telecopy: (419) 325-2585
Attention: Mark E. Songer, Director of Corporate
Development
with copies to:
Libbey Inc.
300 Madison Avenue
PO Box 10060
Toledo, OH 43604-1561
Telecopy: (419) 325-2585
Arthur H. Smith, Vice President and General Counsel
Latham & Watkins
233 S. Wacker Drive
Sears Tower, Suite 5800
Chicago, Illinois 60606
Telecopy:(312) 993-9767
Attention: Mark D. Gerstein
or such other address as the person to whom notice is to be given has furnished
in writing to the other parties. A notice of change in address will not be
deemed to have been given until received by the addressee.
16. GOVERNING LAW; CONSENT TO JURISDICTION.
(a) With respect to all matters relating to the actual
transfer and conveyance of the Canadian Assets, the assumption of the Canadian
Liabilities and Canadian tax matters, this Agreement shall be construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein, and otherwise, this Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois.
(b) With respect to all matters relating to the actual
transfer and conveyance of the Canadian Assets, the assumption of the Canadian
Liabilities and Canadian tax matters, each of the parties hereto irrevocably
attorns and submits to the jurisdiction of any Ontario court sitting in Toronto,
Ontario. All of the parties hereto irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding. Each of the Parent and the Purchaser irrevocably
appoints Blake, Cassels & Graydon LLP (the "PARENT'S PROCESS AGENT") and Osler
Hoskin & Harcourt (the "PURCHASER'S PROCESS AGENT"), respectively, with offices
at Box 25, Commerce Court West, 199 Bay Street, 28th Floor, Toronto, Ontario M5L
1A9 and 1 First Canadian Place, P.O. Box 50, Toronto M5X 1B8, Canada,
respectively, for the attention of Brian C. Westlake and Andrew H. Kingissepp,
E-132
respectively, as its agent to receive on behalf of it and its property service
of copies of the statement of claim and any other process which may be served in
any such action or proceeding. Such service may be made by delivering a copy of
such process to the Parent or the Purchaser in care of the Parent's Process
Agent or the Purchaser's Process Agent, respectively, at its address set out
above, and each of the Parent and the Purchaser irrevocably authorizes and
directs its Process Agent to accept such service on its behalf. Each of Parent
and Purchaser agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by Law. Nothing in this SECTION 16(b)
shall affect the right of any party to serve legal process in any other manner
permitted by Law or affect the right of the parties to bring any action or
proceeding any other court of competent jurisdiction.
(c) Subject to SUBSECTION 16(b), all actions and proceedings
arising out of or relating to this Agreement shall be heard and determined in
any federal court sitting in Chicago, Illinois, unless there is no federal court
jurisdiction, in which case the action or proceeding shall be heard and
determined in any state court sitting in Chicago, Illinois, and the parties
hereto hereby irrevocably submit to the jurisdiction of such courts in any such
action or proceeding and irrevocably waive the defense of an inconvenient forum.
The parties hereto hereby irrevocably waive their respective rights to trial by
jury of any cause of action, claim, counterclaim or cross-complaint in any
action or other proceeding brought by any party hereto against any other party
or parties hereto with respect to any matter arising out of, or in any way
connected with or related to, this Agreement or any portion thereof, whether
based upon contractual, statutory, tortious or other theories of liability. Each
party irrevocably consents to the service of any and all process in any such
action or proceeding by the mailing of copies of such process to such party at
its address specified in SECTION 15. Nothing in this SECTION 16 shall affect the
right of any party hereto to serve legal process in any other manner permitted
by law. The consents to jurisdiction set forth in this Section shall not
constitute general consents to service of process in the State of Illinois and
shall have no effect for any purpose except as provided in this SECTION 16 and
shall not be deemed to confer rights on any person other than the parties
hereto.
17. SEVERABILITY.
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any Law or public policy, all other
terms and provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated by this Agreement is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto 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 in order
that the transactions contemplated by this Agreement are consummated as
originally contemplated to the greatest extent possible.
18. FURTHER ASSURANCES.
Upon the terms and subject to the conditions contained herein,
the parties hereto agree, (a) to use all commercially reasonable efforts to
take, or cause to be taken, all actions
E-133
and to do, or cause to be done, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement,
including, (b) to execute any documents, instruments or conveyances of any kind
which may be reasonably necessary or advisable to carry out any of the
transactions contemplated by this Agreement and (c) to cooperate with each other
in connection with the foregoing.
19. MISCELLANEOUS.
This Agreement will not be modified or amended except by
written agreement of all parties. Captions appearing in this Agreement are for
convenience only and will not be deemed to explain, limit or amplify the
provisions hereof. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original instrument, and all such
counterparts will together constitute the same agreement.
* * *
E-134
IN WITNESS WHEREOF, Parent, Canadian Seller, Purchaser and
Canadian Purchaser have caused this Agreement to be executed as of the date
first written above by their respective officers thereunto duly authorized.
NEWELL RUBBERMAID INC.
By: /s/ Andrea L. Horne
--------------------------------------
Name: Andrea L. Horne
Title: VP Corporate Development
NEWELL INDUSTRIES CANADA INC
By: /s/ Andrea L. Horne
--------------------------------------
Name: Andrea L. Horne
Title: VP Corporate Development
LIBBEY INC.
By: /s/ Arthur H. Smith
--------------------------------------
Name: Arthur H. Smith
Title: VP General Counsel
LIBBEY CANADA INC.
By: /s/ Arthur H. Smith
--------------------------------------
Name: Arthur H. Smith
Title: VP General Counsel
E-135