Purchase Agreement - Perkin-Elmer Corp. and Sulzer Inc.
CONFORMED COPY CONFIDENTIAL
PURCHASE AGREEMENT
between
THE PERKIN-ELMER CORPORATION
and
SULZER INC.
Dated as of April 18, 1994
TABLE OF CONTENTS
Page
ARTICLE I - PURCHASE AND SALE OF PURCHASED ASSETS;
ASSUMPTION OF CERTAIN OBLIGATIONS BY
THE PURCHASER
1.1 The Purchase . . . . . . . . . . . . . . . . . . . 2
1.2 Certain Definitions. . . . . . . . . . . . . . . . 3
ARTICLE II - THE CLOSING
2.1 Closing. . . . . . . . . . . . . . . . . . . . . . 18
2.2 Deliveries and Payments by the Purchaser . . . . . 19
2.3 Deliveries by the Seller . . . . . . . . . . . . . 19
2.4 Purchase Price Adjustment. . . . . . . . . . . . . 22
ARTICLE III - REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Sell-
er . . . . . . . . . . . . . . . . . . . . . . 26
3.2 Representations and Warranties of the Pur-
chaser . . . . . . . . . . . . . . . . . . . . 52
ARTICLE IV - COVENANTS
4.1 Operation of The Business . . . . . . . . . . . . 56
4.2 Preservation of Business. . . . . . . . . . . . . 58
4.3 Approvals and Consents; Cooperation . . . . . . . 58
4.4 Access. . . . . . . . . . . . . . . . . . . . . . 59
4.5 Taxes and Fees. . . . . . . . . . . . . . . . . . 60
4.6 Preservation of Records . . . . . . . . . . . . . 73
4.7 Employee Benefits and Related Matters . . . . . . 74
4.8 Confidentiality . . . . . . . . . . . . . . . . . 84
4.9 Use of Name . . . . . . . . . . . . . . . . . . . 84
4.10 Transition Services . . . . . . . . . . . . . . 85
4.11 Current Information . . . . . . . . . . . . . . . 85
4.12 Disclosure Supplements. . . . . . . . . . . . . . 86
4.13 Covenant Not to Compete . . . . . . . . . . . . . 87
4.14 Title Commitment and Survey . . . . . . . . . . . 89
4.15 Releases of Guarantees. . . . . . . . . . . . . . 90
4.16 Further Assurances. . . . . . . . . . . . . . . . 90
4.17 Environmental Work. . . . . . . . . . . . . . . . 91
ARTICLE V - CONDITIONS TO CLOSING
5.1 Conditions to Each Party's Obligation to
Close. . . . . . . . . . . . . . . . . . . . . 91
5.2 Conditions to Obligation of the Purchaser
to Close . . . . . . . . . . . . . . . . . . . 94
5.3 Conditions to Obligation of the Seller to
Close. . . . . . . . . . . . . . . . . . . . . 95
ARTICLE VI - INDEMNITY
6.1 Survival of Representations. . . . . . . . . . . 96
6.2 Indemnity by the Seller. . . . . . . . . . . . . 97
6.3 Indemnity by the Purchaser . . . . . . . . . . . 98
6.4 Environmental Indemnification. . . . . . . . . . 100
6.5 Procedures Relating to Environmental Indem-
nification . . . . . . . . . . . . . . . . . 101
6.6 Indemnification Procedure. . . . . . . . . . . . 104
6.7 Limitations on Indemnification . . . . . . . . . 106
6.8 Indemnity Not Exclusive Remedy . . . . . . . . . 107
ARTICLE VII - TERMINATION
7.1 Termination. . . . . . . . . . . . . . . . . . . 107
7.2 Effect of Termination. . . . . . . . . . . . . . 108
ARTICLE VIII - MISCELLANEOUS
8.1 Expenses. . . . . . . . . . . . . . . . . . . . 109
8.2 Public Communications . . . . . . . . . . . . . 109
38.3 Notices. . . . . . . . . . . . . . . . . . . . 109
8.4 Amendments; Waivers . . . . . . . . . . . . . . 110
8.5 Section Headings. . . . . . . . . . . . . . . . 111
8.6 Counterparts. . . . . . . . . . . . . . . . . . 111
8.7 Assignment. . . . . . . . . . . . . . . . . . . 111
8.8 Bulk Sales. . . . . . . . . . . . . . . . . . . 112
8.9 Governing Law . . . . . . . . . . . . . . . . . 112
8.10 Jurisdiction. . . . . . . . . . . . . . . . . . 112
8.11 Miscellaneous . . . . . . . . . . . . . . . . . 113
CONFORMED COPY
PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), dated as
of April 18, 1994, between The Perkin-Elmer Corporation,
a New York corporation (the "Seller"), and Sulzer Inc., a
Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, prior to the date hereof, the Seller,
through its Metco Division and through certain foreign
subsidiaries identified in a Schedule to this Agreement
(collectively, the "Division"), has engaged in the devel-
opment, design, manufacture and marketing of coating ser-
vices and servicing of, and training with respect to,
combustion, electric arc and plasma thermal spray equip-
ment, and related equipment and materials (the "Busi-
ness"); and
WHEREAS, the Seller desires to sell and trans-
fer to the Purchaser, and the Purchaser desires to pur-
chase and assume from the Seller, substantially all of
the assets and certain of the liabilities Related to the
Business (as hereinafter defined), all as more specifi-
cally provided herein.
NOW, THEREFORE, in consideration of the mutual
covenants and undertakings contained herein, and subject
to and on the terms and conditions herein set forth, the
parties hereto agree as follows:
ARTICLE I
Purchase and Sale of Purchased Assets;
Assumption of Certain Obligations by the Purchaser
1.1 The Purchase. Upon the terms and subject
to the conditions of this Agreement, at the Closing (as
hereinafter defined), the Seller shall sell, assign,
transfer, convey and deliver, or cause to be sold, as-
signed, transferred, conveyed and delivered, to the
Purchaser all of the Seller's right, title and interest
in and to the Purchased Assets (as hereinafter defined)
free and clear of all Liens (as hereinafter defined),
except the Owned Real Property (as hereinafter defined)
shall be conveyed subject to the Permitted Encumbrances
(as hereinafter defined) and the Leased Real Property (as
hereinafter defined) shall be conveyed subject to the
Permitted Leasehold Encumbrances (as hereinafter de-
fined), and the Purchaser shall pay to the Seller on
Purchaser's own behalf and as agent for and on behalf of
those affiliates purchasing shares of the Stock Subsid-
iaries (as hereinafter defined) and assets from the Asset
Subsidiaries (as hereinafter defined) the amount set
forth in Section 2.2 hereof (which Seller accepts on its
own behalf and as agent for and on behalf of those affil-
iates selling shares of the Stock Subsidiaries and on
behalf of the Asset Subsidiaries with respect to the
assets sold) and the Purchaser shall assume and discharge
or perform when due the Assumed Liabilities (as hereinaf-
ter defined) solely and exclusively for the benefit of
the Division and not any third party. Such transaction
is hereinafter referred to as the "Purchase."
1.2 Certain Definitions. As used herein, the
following terms have the meanings indicated:
"Accountants" means Price Waterhouse.
"Assumed Environmental Liabilities" means one
hundred percent (100%) of Environmental Liabilities other
than Excluded Environmental Liabilities.
"Assumed Liabilities" means the following and
only the following:
(i) all liabilities of the Division Related to
the Business that are reflected as liabilities on the
Final Statement but only to the extent and in the amount
of such inclusion;
(ii) all liabilities, commitments, duties or
other obligations contained in or arising out of each As-
sumed Contract (as hereinafter defined) that is fully and
effectively assigned to the Purchaser;
(iii) all liabilities, costs and expenses of
the Division which arise as a result of any claim, ac-
tion, suit or proceeding against the Division or the Pur-
chased Assets and which is based on a claim that a prod-
uct or products manufactured or sold by the Division
prior to the Closing Date was or were defectively or
improperly designed or manufactured ("Product Liabili-
ties");
(iv) all liabilities and obligations of the
Seller under the German pension plan at Perkin-Elmer
Metco GmbH (Germany) ("Metco GmbH");
(v) Assumed Environmental Liabilities; and
(vi) Unknown Liabilities (as hereinafter
defined).
Assumed Liabilities shall not mean or include any Exclud-
ed Liability.
"Closing Date Net Assets" means the difference
between the Purchased Assets and the Assumed Liabilities
that is reflected in the Final Statement (as hereinafter
defined).
"Closing Statement" means the audited statement
of net assets of the Business as of the Closing Date (as
hereinafter defined), which statement shall be prepared
by the Seller in accordance with generally accepted ac-
counting principles applied on a world wide basis consis-
tent with the Financial Statement; provided that the
Closing Statement shall in any event include as a liabil-
ity the pension obligation for Metco GmbH to be assumed
by the Purchaser pursuant to clause (iv) under the head-
ing "Assumed Liabilities" in this Section 1.2 in an
amount equal to the actuarially computed present value of
such obligation (computed on a basis consistent with past
valuations by the plan actuary). In addition, the Clos-
ing Statement shall be prepared using the Seller's corpo-
rate accounting policies and directives (a copy of cer-
tain of which is attached hereto as Schedule 1.2(A))
which shall be applied consistently on a worldwide basis
to the Purchased Assets and the Assumed Liabilities
reflected on such statement; provided, however, under no
circumstances shall the inventory obsolescence require-
ment for inventory included in the Purchased Assets be
determined using the Metco Obsolescence Procedure but it
shall instead be determined in accordance with Perkin-
Elmer Finance Manual Procedure 2-37 Inventory Obsoles-
cence. The Closing Statement shall be accompanied by an
unqualified opinion thereon of the Accountants.
"Employees" means persons employed by the
Division in connection with the Business.
"Environment" means exterior air, water vapor,
surface water, ground water, drinking water supply or
land, including land surface or subsurface, and includes
all fish, wildlife, biota and all other natural resourc-
es.
"Environmental Claim" means any claim, action,
cause of action, investigation or written notice by any
person or entity alleging potential liability (including,
without limitation, potential liability for investigatory
costs, cleanup costs, governmental response costs, natu-
ral resource damages, property damages, personal inju-
ries, or penalties) arising out of, based on or resulting
from (a) the presence, or release into the Environment,
of any Material of Environmental Concern on or prior to
the Closing Date on, in or under the Real Property, or
(b) the violation, or alleged violation, of any Environ-
mental Law arising out of the condition of or operations
conducted at the Real Property on or prior to the Closing
Date.
"Environmental Condition" means any state of
facts that exist at any time on or before the Closing
Date on, in or under the Real Property that relate to or
affect the compliance of the Real Property with all Envi-
ronmental Laws.
"Environmental Law(s)" means those United
States federal, state, local and foreign environmental
statutes and ordinances, as such laws have been amended
or supplemented as of the Closing Date, and lawfully pro-
mulgated rules and regulations pursuant thereto as of the
Closing Date relating to the protection of the Environ-
ment, including, without limitation, the Resource Conser-
vation and Recovery Act of 1976, as amended, the Clean
Air Act, as amended, the Federal Water Pollution Control
Act, as amended, the Comprehensive Environmental Re-
sponse, Compensation and Liability Act of 1980, as amend-
ed, the Toxic Substances Control Act, as amended, and
state statutes similar to or based upon the foregoing,
including, without limitation, Articles 17 and 27 of the
New York State Environmental Conservation Law and other
applicable laws and regulations relating to emissions,
discharges, releases or threatened releases of Materials
of Environmental Concern, or otherwise relating to the
manufacture, processing, use, treatment, storage, dis-
posal, transport, or handling of Materials of Environmen-
tal Concern.
"Environmental Liabilities" means any liabili-
ties and obligations of every kind, character and de-
scription based upon, arising out of or otherwise in
respect of (a) the violation or alleged violation of any
Environmental Law, as such laws may be amended or sup-
plemented after the Closing Date, including but not
limited to, any Environmental Claim or Environmental
Condition, or (b) the presence or release into the Envi-
ronment of any Material of Environmental Concern on, in
or under the Real Property.
"Estimated Purchase Price" means $73,500,500
"Excluded Assets" means all assets listed on
Schedule 1.2(B) hereto.
"Excluded Environmental Liabilities" means
[material at this point has been
omitted pursuant to a request for confidential treatment under
the Freedom of Information Act and has been filed separately with
the Securities and Exchange Commission]
of Environmental Liabilities first commenced
or asserted on or prior to the fifteenth anniversary of
the Closing Date and that are based on, arising out of or
otherwise in respect of the violation or alleged viola-
tion of any Environmental Law existing on or prior to the
Closing Date, an Environmental Claim, Environmental
Condition, or the presence of any Material of Environmen-
tal Concern on, in or under all or any portion of the
Real Property, as of the Closing Date.
"Excluded Liabilities" means the following and
only the following:
(i) any and all liabilities and obligations,
direct or indirect, fixed or contingent, for Taxes (as
hereinafter defined) of the Seller, or any of the Asset
Subsidiaries or Stock Subsidiaries, whether or not as-
sessed prior to, on or after the Closing Date, attrib-
utable to the Pre-Closing Tax Period (as hereinafter
defined);
(ii) Excluded Environmental Liabilities;
(iii) any liability, duty or other obligation
contained in or arising out of any agreement, contract,
license agreement, lease or sublease Related to the Busi-
ness that is not an Assumed Contract which is fully and
effectively assigned to Purchaser;
(iv) any liability of the Seller for any
severance or similar payment for any Transferred Employee
(as hereinafter defined) to whom Purchaser makes an offer
of employment in conformity with the terms of Section
4.7(a); provided, however, all liabilities arising out of
or incurred in connection with those certain severance
agreements between the Sellers and Messrs. Thomas R.
Klein, Burton Kushner, Andrew B. Mazzone, Francis J.
McKendry, Vincent Meringolo and Robert P. Zounek are Ex-
cluded Liabilities;
(v) (A) any Product Liability related to an
occurrence (as hereinafter defined) prior to the Closing
of which the Seller had knowledge on the Closing Date, to
the extent of 100% of such Product Liability (a "Known
Product Liability") and (B) any Product Liability related
to an occurrence prior to the Closing of which the Seller
had no knowledge on the Closing Date, to the extent of
100% of the portion of such Product Liability covered by
the Seller's insurance and 50% of the portion of such
Product Liability not covered by the Seller's insurance.
For purposes of this definition, "occurrence" means an
accident, including continuous or repeated exposure to
substantially the same general harmful condition;
(vi) any liabilities of the Division resulting
from (A) any litigation, arbitration or other similar
proceeding, including labor grievances and administrative
agency actions with respect to employees or employment
practices of the Divison, or (B) any workers' compensa-
tion claims and automobile liability claims, in either
case pending or threatened in writing prior to the Clos-
ing Date;
(vii) any liabilities or obligations related
to the Excluded Assets;
(viii) subject to the provisions of Section
4.7 hereof, any liabilities or obligations of the Seller
under employee health, welfare and severance benefit
plans relating to the Employees, including but not limit-
ed to (A) all liabilities for such health, welfare and
severance benefits owed with respect to former salaried
and non-salaried Employees who are retired as of the
Closing, and (B) federal and state income tax liability,
arising by reason of the Seller's failure, through any
act or omission before, on or after the Closing Date, to
comply with the requirements of Section 4980 B of the
Internal Revenue Code of 1986, as amended (the "Code") or
Sections 601-607 of the Employee Retirement Income Secu-
rity Act of 1974, as amended ("ERISA") ("COBRA"), with
respect to any "qualified beneficiary" (as defined in
COBRA), whether the relevant "qualifying event" (as
defined in COBRA) occurs before, on or after the Closing
Date; provided, however, those liabilities and obliga-
tions of the Seller to those Employees who are actively
employed in the Business at Metco GmbH shall be Assumed
Liabilities;
(ix) all obligations of the Seller or any
Subsidiary to any banks or to Seller and its affiliates
with respect to money borrowed; and
(x) all liabilities under the lease agreement
with respect to the Seller's Farnborough (U.K.) facility.
"Final Statement" means the Closing Statement,
after giving effect to the provisions of Section 2.4(b)
hereof.
"Financial Statement" means the audited State-
ment of Net Assets of the Division at June 30, 1993
attached as Schedule 1.2(C) hereto.
"Liens" means all pledges, security interests,
liens, charges, encumbrances, equities, and options of
whatsoever nature, and any claims of any of the forego-
ing, except for statutory liens for taxes not yet due and
payable.
"Materials of Environmental Concern" means any
"hazardous waste," "hazardous material," "hazardous sub-
stance," "extremely hazardous waste," or "restricted
hazardous waste," "subject waste," "pollutant," "contami-
nant," "toxic waste" or "toxic substance" under any
provision of Environmental Law, including, but not limit-
ed to, asbestos, petroleum and polychlorinated biphenyls.
"Material Subsidiaries" means the Subsidiaries
listed on Schedule 1.2(G) hereto which are specifically
identified as "Material Subsidiaries".
"Pre-Closing Tax Period" means any taxable
period ending on or before the Closing Date.
"Purchased Assets" means all assets, properties
or rights (of every kind, nature and description, real,
personal or mixed, tangible or intangible and wherever
situated, and including the rights of the Division to the
use of properties and assets owned by Seller and the
Subsidiaries), goodwill and business as a going concern
that are Related to the Business (as hereinafter de-
fined), other than the Excluded Assets, including, with-
out limitation, the following:
(a) all real property Related to the
Business, whether owned (the "Owned Real Property") or
leased (the "Leased Real Property"; and, together with
the Owned Real Property, the "Real Property"), including
any buildings, structures and improvements thereon or
appurtenances thereto listed on Schedule 1.2(E) hereto;
(b) all accounts receivable arising out
of the sale or other disposition of goods or services
Related to the Business;
(c) all raw materials, supplies and
manufactured goods constituting inventories, together
with such additions thereto and deletions therefrom as
shall have occurred from the date hereof to the Closing
in the ordinary course of business, Related to the Busi-
ness;
(d) all machinery, tools, equipment,
automobiles and trucks, furniture, fixtures and other
personal property Related to the Business, whether owned
(the "Owned Equipment") or leased (the "Leased Equip-
ment"; and, together with the Owned Equipment, the
"Equipment");
(e) all intellectual property rights
Related to the Business, including all rights in or to
(i) patents, trademarks, service marks, and all appli-
cations therefor and registrations and recordings there-
of, (ii) copyrights, (iii) product designations, trade
names, permits, approvals, ideas, plans, specifications,
formulae, processing procedures, quality standards, data,
trade secrets, inventions, investigations, designs, pro-
cesses, production methods and techniques, know-how,
books, records, manuals and other information, including,
without limitation, all such rights listed on Schedule
1.2(F) hereto (the "Intellectual Property");
(f) all of the Seller's rights in and to
the name "Metco" and any variation thereof;
(g) (i) all assets, properties or rights
(of any kind, nature and description, real, personal or
mixed, tangible or intangible and wherever situated),
goodwill and business as a going concern, including,
without limitation, the specific assets listed in this
definition of Purchased Assets, of the divisions and
branches Related to the Business and held by the subsid-
iaries of Seller as described and listed on Schedule
1.2(G)(i) hereof (the "Asset Subsidiaries"); and
(ii) all outstanding capital stock of
those subsidiaries of Seller Related to the Business and
listed on Schedule 1.2(G)(ii) hereto (the "Stock Subsid-
iaries") and all interests, beneficial or otherwise, in
the joint ventures of Seller or any affiliate of Seller
Related to the Business and listed on Schedule
1.2(G)(iii) hereto (the "Joint Ventures"); provided,
however, that the Stock Subsidiaries shall not include
the Asset Subsidiaries listed on Schedule 1.2(G)(i) here-
to. (The Asset Subsidiaries, the Stock Subsidiaries and
the Joint Ventures are herein referred to as the "Subsid-
iaries," except for purposes of Sections 3.1 and 4.5,
wherein the term "Subsidiaries" shall not include Joint
Ventures);
(h) all right, title and interest of the
Seller in and to all contracts and license agreements
listed or referred to on Schedule 1.2(H) hereto (the "As-
sumed Contracts");
(i) all permits, licenses, franchises,
consents, authorizations of any foreign or domestic
federal, state or local governmental body Related to the
Business, except to the extent that the transfer thereof
to the Purchaser would violate applicable laws or regula-
tions;
(j) all documents, files, records and
other materials Related to the Business; and
(k) without limiting the generality of
the foregoing, all assets, properties and rights reflect-
ed on the Final Statement.
"Purchase Price" means the amount of the Clos-
ing Date Net Assets plus $6,500,000.
"Related to the Business" means primarily
related to, or used primarily in connection with, or
primarily arising out of or in connection with, the
operations of the Business prior to the Closing.
"Remedial Action" means all actions required
under Environmental Law to clean up, remove, treat or in
any other way address any Material of Environmental Con-
cern that is on, in or under the Real Property on or
prior to the Closing Date.
"Straddle Period" means any taxable period of
the Seller or any Subsidiary that begins before the Clos-
ing Date and ends after the Closing Date.
"Taxes" means any and all taxes, charges, fees,
levies or other like assessments (including penalties,
interest or additions to tax imposed in connection there-
with or with respect thereto, if applicable), including
but not limited to income, transfer, gains, gross re-
ceipts, excise, inventory, property (real, personal or
tangible), sales, use, license, withholding, payroll,
employment, social security, unemployment, occupation,
premium, windfall profits, capital stock, franchise, ser-
vice, ad valorem or value added taxes or customs duties
imposed by the United States or any state, local or
foreign government or subdivision or agency thereof,
whether computed on a unitary, combined or any other
basis.
"Tax Returns" means all reports, returns,
information, statements, and other documentation (includ-
ing any additional or supporting material) filed or
maintained, or required to be filed or maintained, in
connection with the calculation, determination, assess-
ment or collection of any Taxes.
"Unknown Liabilities" means all liabilities (as
defined in Section 3.1(s)) Related to the Business which
are not specifically referred to in clauses (i), (ii) and
(iv) of the definition of "Assumed Liabilities". No Ex-
cluded Liability, Product Liability or Environmental Lia-
bility shall be an Unknown Liability, and no Unknown
Liability shall be either a Product Liability or an Envi-
ronmental Liability.
ARTICLE II
The Closing
2.1 Closing. The closing of the Purchase (the
"Closing") shall take place at the offices of Skadden,
Arps, Slate, Meagher & Flom, 919 Third Avenue, New York,
NY at 10:00 a.m., New York time, on the later of (i) May
31, 1994, and (ii) the month end next following the date
on which the last to be satisfied or waived of the condi-
tions set forth in Article V hereof shall be satisfied or
waived in accordance with this Agreement; or at such
other time, day or place as the parties hereto shall
mutually agree. The day on which the Closing takes place
is herein referred to as the "Closing Date."
2.2 Deliveries and Payments by the Purchaser.
At the Closing, the Purchaser shall deliver the following:
(a) The Estimated Purchase Price, payable to
the Seller in immediately available funds by wire transfer
to a United States bank account to be designated by Seller
in writing not less than three business days prior to the
Closing Date; and
(b) Such instruments of assumption and other
instruments or documents as may be reasonably necessary to
carry out the Purchase and to comply with the terms here-
of.
2.3 Deliveries by the Seller. At the Closing,
the Seller shall deliver the following:
(i) the Purchased Assets;
(ii) with respect to the Purchased Assets
other than the Real Property, such bills of sale and
other instruments of conveyance or assignment or docu-
ments in form and substance reasonably satisfactory to
the Purchaser and its counsel as may be necessary to vest
in the Purchaser all of the right, title and interest of
the Seller in and to the Purchased Assets, including,
without limitation, such bills of sale and other instru-
ments or documents as shall be necessary to vest in the
Purchaser good title, free and clear of all Liens;
(iii) certificates or other statements from
the Secretary of State of the State of New York which
indicate that as of the Closing Date there are no filings
against Seller under the Uniform Commercial Code of New
York which would be a Lien on the Equipment included in
the Purchased Assets (other than such filings, if any, as
are being released at the time of the Closing) unless
such filing secures an obligation that is an Assumed
Liability;
(iv) written notices executed by the Seller
changing the address for payment on accounts and services
and written notices of the Purchase jointly signed by
Seller and the Purchaser, as the Purchaser shall reason-
ably request;
(v) with respect to the Owned Real Property,
bargain and sale deeds, in the customary form in the
jurisdictions in which the Owned Real Property is locat-
ed, with covenants against grantor's acts, in recordable
form, subject only to the Permitted Encumbrances, togeth-
er with any third party consents listed on Schedule
3.1(j) to be obtained from any such third party related
to the Owned Real Property; and with respect to the
Leased Real Property, assignments of lease, in the cus-
tomary form in the jurisdictions in which the Leased Real
Property is located, in recordable form, subject only to
the Permitted Leasehold Encumbrances, together with any
third party consents listed on 3.1(j), to be obtained
from any such third party related to the Leased Real
Property;
(vi) a true, correct and complete affidavit of
non-foreign status of the Seller in a form which complies
with the provisions of Section 1445 of the Code, and the
regulations thereunder (the "FIRPTA Affidavit") which
attests to Seller's non-foreign status;
(vii) estoppel certificates, in the form
reasonably satisfactory to the Purchaser, executed by
each Landlord which is a party to any leases on the
Leased Real Property; provided, however (i) as to the
Leased Real Property in the United States, in the event
that the Seller, after using its reasonable efforts, is
unable to obtain such estoppel certificates, or (ii) as
to the other Leased Real Property in the event that the
Seller is unable to obtain such estoppel certificates,
then in lieu thereof, the Seller shall execute and deliv-
er a reasonably acceptable tenant's estoppel certificate
for such Leased Real Property; and
(viii) all other documents, instruments and
writings required to be delivered by the Seller pursuant
to this Agreement or otherwise reasonably required in
connection herewith.
2.4 Purchase Price Adjustment. (a) As soon
as practicable, but not more than ninety (90) calendar
days after the Closing Date, the Seller shall deliver to
the Purchaser the Closing Statement. During the prepara-
tion and audit of the Closing Statement by the Seller and
the Accountants and during the period of any dispute
within the contemplation of Section 2.4(b) hereof, the
Purchaser shall provide the Seller, the Accountants and
the Seller's authorized representatives reasonable access
to the books, records, facilities and employees of the
Business and shall cause the Business to cooperate with
the Seller, the Accountants and the Seller's authorized
representatives, in each case to the extent reasonably
required in order to prepare the Closing Statement and to
investigate the basis for any such dispute. The Purchas-
er and its representatives, including Deloitte & Touche
(the "Purchaser's Accountants"), shall have the right to
communicate with and to review the work papers, sched-
ules, memoranda and other documents prepared or reviewed
by the Seller and/or the Accountants in connection with
their preparation and/or audit of the Closing Statement,
and the Purchaser and its representatives shall have
access to the Accountants and such employees of the
Seller and to all relevant books and records, to the
extent reasonably required by them in order to complete
their review of the Closing Statement and to investigate
the basis for any potential dispute contemplated by
Section 2.4(b). Subject to Section 2.4(b), the Closing
Statement shall be conclusive and binding as the "Final
Statement."
(b) The Purchaser may dispute any amounts re-
flected on the Closing Statement, based solely on wheth-
er such disputed amounts were arrived at in accordance
with the provisions with respect to the preparation of
the Closing Statement set forth in Section 1.2 under the
heading "Closing Statement"; provided that the Purchaser
shall notify the Seller in writing of each disputed
item, and specify the amount thereof in dispute and the
basis for such dispute, within forty-five (45) calendar
days of the Purchaser's receipt of the Closing State-
ment. In the event of such a dispute, the Purchaser,
the Seller and their respective independent certified
public accountants shall attempt to reconcile their
differences and any resolution by the Purchaser and the
Seller as to any disputed amounts shall be in writing
and signed by the Purchaser and the Seller and shall
thereafter be final, binding and conclusive. If the
Purchaser and the Seller are unable to reach a resolu-
tion with such effect within fifteen (15) business days
of the Seller's receipt of the Purchaser's written no-
tice of dispute, then the Purchaser and the Seller shall
submit the items remaining in dispute for resolution to
KPMG Peat Marwick, or another independent "big six" ac-
counting firm (other than the Accountants or the
Purchaser's Accountants) mutually appointed by the Sell-
er and the Purchaser (such accounting firm being herein
referred to as the "Independent Accounting Firm"), which
shall, within thirty (30) calendar days after submis-
sion, determine such disputed items in accordance with
the provisions with respect to the preparation of the
Closing Statement set forth in Section 1.2 under the
heading "Closing Statement," and report to the parties
which report shall be final, binding and conclusive.
The fees and disbursements of the Independent Accounting
Firm shall be allocated equally between the Purchaser
and the Seller.
(c) If the Purchase Price exceeds the Esti-
mated Purchase Price, then the Purchaser shall pay to
the Seller an amount equal to such excess, together with
simple interest thereon from the Closing Date to the
date of payment at the rate of 6% per annum, calculated
on the basis of a 365-day year. If the Estimated Pur-
chase Price exceeds the Purchase Price, then the Seller
shall pay to the Purchaser an amount equal to such ex-
cess, together with simple interest thereon from the
Closing Date to the date of payment at the rate of 6%
per annum, calculated on the basis of a 365-day year.
(d) Any amount payable pursuant to Section
2.4(c) hereof shall be paid by wire transfer of immedi-
ately available funds to a bank account designated by the
Purchaser or the Seller, as the case may be, as soon as
practicable following the determination of the Final
Statement, but in no event more than three (3) days
thereafter.
ARTICLE III
Representations and Warranties
3.1 Representations and Warranties of the
Seller. The Seller hereby represents and warrants to the
Purchaser as follows:
(a) Organization of the Seller and Material
Subsidiaries. The Seller and each of the Material Sub-
sidiaries are corporations duly organized, validly exist-
ing and in good standing under the laws of their respec-
tive jurisdictions of incorporation or organization and
each such entity has all necessary corporate power to
own, lease and operate its respective Purchased Assets
and to carry on the Business conducted by it as now being
conducted. The Seller and each of the Material Subsid-
iaries are duly qualified and in good standing to do
business in all jurisdictions in which the Purchased
Assets owned or used by it or the Business conducted by
it makes such qualification necessary, except for those
jurisdictions where the failure to be so duly qualified
will not have a material adverse effect on the Purchased
Assets, the Assumed Liabilities or the business, finan-
cial condition or results of operations of the Business,
taken as a whole (a "Material Adverse Effect").
(b) Authorization and Noncontravention. The
execution, delivery and performance of this Agreement has
been duly authorized by the Seller and no other corporate
proceedings on the part of the Seller are necessary to
authorize this Agreement or the transactions contemplated
hereby. The Seller has full corporate power and authori-
ty to enter into this Agreement and to perform its obli-
gations hereunder. This Agreement has been duly and
validly executed and delivered by the Seller and consti-
tutes a valid and legally binding obligation of the
Seller enforceable against the Seller in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles. The execution
and the delivery by the Seller of this Agreement and the
consummation by the Seller of the Purchase will not (i)
violate any term or provision of the Restated Certificate
of Incorporation or By-laws of the Seller; (ii) subject
to obtaining any required authorizations, approvals,
consents or waivers set forth in Schedule 3.1(j) hereto,
conflict with or result in a breach of or constitute a
default under or result in the termination of, or entitle
any party to accelerate (whether after the filing or
notice or lapse of time or both), any agreement to which
the Seller or any Material Subsidiary is a party or by
which it is bound or to which any of its assets are
subject, or result in the creation of any lien or encum-
brance upon any of said assets, other than conflicts,
breaches, defaults, terminations, accelerations, liens or
encumbrances which, individually or in the aggregate,
would not have a Material Adverse Effect or materially
impair the ability of the parties hereto to consummate
the Purchase; or (iii) subject to obtaining the authori-
zations, approvals, consents or waivers set forth in
Schedule 3.1(j) hereto and to the expiration of the
applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), the Omnibus Trade and Competitiveness Act of 1988
(the "Exon-Florio Amendment") and the Federal Republic of
Germany's Act Against Restraints of Competition (the "GWB
Act"), violate or result in a breach of or constitute a
default under any judgment, order, decree, law, rule,
regulation or other restriction of any court, government
or governmental agency to which the Seller, any Subsid-
iary or any of the Purchased Assets are subject, other
than violations, breaches or defaults which individually
or in the aggregate would not have a Material Adverse
Effect or materially impair the ability of the parties
hereto to consummate the Purchase.
(c) The Purchased Assets. Except as set forth
Schedule 3.1(c) hereto, the Purchased Assets constitute
in all material respects the rights, properties and
assets (real, personal or mixed, tangible or intangible)
used in the conduct of the Business as currently con-
ducted by the Seller and the Subsidiaries. The Seller
has good and valid title to the owned Purchased Assets
(other than the Owned Real Property, which is the subject
of Section 3.1(d) hereof, and the Intellectual Property,
which is the subject of Section 3.1(k) hereof), free and
clear of all Liens except for Liens set forth on Schedule
3.1(c) hereto, which shall be released on or prior to the
Closing.
(d) Real Property. Seller and each Subsid-
iary has fee simple and insurable title, or the equiva-
lent of fee simple and insurable title under applicable
law in the case of the Owned Real Property located out-
side the United States, to the Owned Real Property iden-
tified as belonging to it on Schedule 1.2(E), free and
clear of all liens, covenants, conditions, restrictions,
rights of way, easements, encroachments, charges and
encumbrances or other adverse claims or interests of any
nature other than: (i) liens for current taxes not yet
due and payable; (ii) liens for installments for special
or other assessments not yet due and payable; (iii) the
matters set forth on Schedule 3.1(d) hereto; (iv) laws,
ordinances and governmental regulations (including, but
not limited to, building and zoning ordinances) restrict-
ing and regulating but not prohibiting the occupancy, use
or enjoyment of the Owned Real Property for the business
presently conducted thereon, or regulating the character,
dimensions or location of any improvement now or hereaf-
ter erected on the Owned Real Property provided the same
are not materially violated by any existing improvements
or the use thereof and provided the same do not prohibit
a transfer of the Owned Real Property, (v) such other
encroachments, easements, overlaps, gaps, boundary line
disputes or claims and any other matters which would be
disclosed by an accurate survey or inspection which,
individually or in the aggregate, do not materially
interfere with the use or operation of the particular
Owned Real Property affected as presently used and oper-
ated, and (vi) such other imperfections of title, encum-
brances, covenants, conditions and restrictions which
individually or in the aggregate, do not materially
interfere with the use and operation of the particular
Owned Real Property affected as presently used and oper-
ated. Collectively, items (i), (ii), (iii), (iv), (v)
and (vi) above are herein referred to as the "Permitted
Encumbrances." The Seller and each Subsidiary, with
respect to each Leased Real Property identified on Sched-
ule 3.1(l) as belonging to it, has a good and valid
leasehold interest free and clear of all liens, charges
and encumbrances or other adverse claims or interests of
any nature other than: (i) claims for rent and additional
rent not yet due and payable, and all other obligations
of the tenant pursuant to each such lease, provided that
tenant is not in default beyond applicable notice and
grace provisions under such lease, (ii) matters set forth
in Schedule 3.1(d) hereto, (iii) matters affecting its
landlord's title, and (iv) laws, ordinances and govern-
mental regulations (including, but not limited to, build-
ing and zoning ordinances) restricting and regulating but
not prohibiting the occupancy, use or enjoyment of the
Leased Real Property for the use permitted by each such
lease and the business presently conducted in the premis-
es demised under each such lease, or regulating the
character, dimensions or location of the demised premises
or the business presently conducted on the demised pre-
mises provided the same are not materially violated.
Collectively, items (i), (ii), (iii) and (iv) above are
herein referred to as the "Permitted Leasehold Encum-
brances". Except as set forth on Schedule 3.1(d), Seller
(A) has not pre-paid or anticipated rent or additional
rent under any such lease, except as required by the
terms of any Lease, (B) knows of no requirement that any
third party (including the landlord under each such
lease) consent to the assignment or transfer of each such
lease or consent to the transfer of the stock of any
Subsidiary which is a tenant under any such lease and (C)
knows of no guarantee of the obligations of a tenant
under any such lease by Seller or any Subsidiary except
as shown on Schedule 4.15.
(e) Condemnation. There is no pending or, to
knowledge of the Seller, threatened condemnation of the
Owned Real Property or, to the knowledge of Seller,
pending or threatened condemnation of the Leased Real
Property or any part thereof or, to the knowledge of
Seller, any general or special assessment relating to any
condemnation referred to in this paragraph.
(f) Financial Statement. The Seller has
previously furnished to the Purchaser (i) the audited
statements of net sales and direct costs and expenses and
sources and uses of cash of the Division for the fiscal
year ended June 30, 1993 (the "Special Purpose State-
ments"), and (ii) the Financial Statement. Except as set
forth in the notes to the Special Purpose Statements, the
Financial Statement and Schedule 3.1(f) hereto, the
Financial Statement presents fairly the June 30 Net
Assets at June 30, 1993, and the Special Purpose State-
ments present fairly the related net sales and direct
costs and expenses and sources and uses of cash for the
fiscal year then ended, in each case in accordance with
generally accepted accounting principles consistently
applied on a worldwide basis in accordance with the
Seller's corporate accounting policies and directives.
(g) Absence of Certain Changes. Except as set
forth in Schedule 3.1(g) hereto, since June 30, 1993
there has not been with respect to the Business (i) any
material adverse change in the business, financial condi-
tion or results of operations of the Business, taken as a
whole; (ii) other than in the ordinary course of busi-
ness, any expenditures or commitments, including capital
expenditures or commitments for capital expenditures,
made by the Seller for additions to property, plant,
equipment or intangible capital assets which exceed
$50,000 individually or $250,000 in the aggregate, other
than as described on Schedule 4.1; (iii) any failure to
maintain in full force and effect substantially the same
level and types of insurance coverage as in effect on
June 30, 1993; (iv) any destruction, damage to, or loss
of any Purchased Asset (whether or not covered by insur-
ance) which would have a Material Adverse Effect; (v) any
change in accounting methods, principles or practices;
(vi) any sale, assignment or transfer of any material
tangible or intangible Purchased Assets, including any
material Intellectual Property, other than licenses of
Purchased Assets entered into in the ordinary course of
business; or (vii) any agreement or understanding to take
any of the actions described in this Section.
(h) Litigation. Except as set forth in Sched-
ule 3.1(h) or 3.1(k) hereto, there are no written claims,
actions, suits, or proceedings, nor has the Seller re-
ceived any notice of governmental investigations (i) in-
volving the Business pending or, to the knowledge of the
Seller, threatened or (ii) relating to the products of
the Business or any products alleged to have been manu-
factured or sold by the Seller or any Subsidiary in con-
nection with the Business, based on allegations that such
products are defective or improperly designed or manufac-
tured pending or, to the knowledge of the Seller, threat-
ened. Except as set forth in Schedule 3.1(h) or 3.1(k)
hereto, neither the Seller nor any Subsidiary is subject
to any judgment, order or decree in any lawsuit or pro-
ceeding Related to the Business.
(i) Compliance with Law. Except as set forth
in Schedule 3.1(i) hereto and except with respect to
Environmental Laws (compliance with which is the subject
of Section 3.1(p) hereof), to the knowledge of the Seller
(i) the Business is being conducted in compliance in all
material respects with all applicable laws, rules and
regulations and orders and (ii) the Seller has not re-
ceived any written complaint or notice from any govern-
mental authority alleging that the Seller has violated
any laws, rules, regulations or orders.
(j) Approvals and Consents. Except for com-
pliance with the HSR Act, the Exon-Florio Amendment and
the GWB Act and other than as set forth in Schedule
3.1(j) hereto, (1) there are no authorizations, approv-
als, consents or waivers required to be obtained from or
notices or filings required to be given to or made with,
any government or governmental agency by the Seller in
connection with the Purchase, and (2) there are no autho-
rizations, approvals, consents or waivers required to be
obtained by the Seller or any Subsidiary from any third
party or notices required to be given by the Seller or
any Subsidiary to any third party, in either case pursu-
ant to any Material Agreement in connection with the Pur-
chase.
(k) Intellectual Property. (i) Schedule
1.2(F) sets forth a complete and accurate list of all
trademarks, patents and material copyrights registered or
applied for, Related to the Business, owned by the Seller
or any Subsidiary. Except as set forth in Schedule
3.1(k) hereto, either the Seller or such Subsidiary is
the sole and exclusive beneficial owner of the Intel-
lectual Property, free and clear of all Liens. Except as
set forth in Schedule 3.1(k) hereto, to the knowledge of
the Seller (x) there are no actions or proceedings pend-
ing or threatened which challenge the Seller's right to
use any of its material Intellectual Property in connec-
tion with the Business and (y) the Seller's use of Intel-
lectual Property in connection with the Business does not
infringe upon or otherwise violate the rights of others.
(ii) All registered trademarks, patents and
material copyrights are validly registered, and, except
as set forth in Schedule 3.1(k) the Seller or a Subsid-
iary is the current record owner of all such registra-
tions or applications therefor. The Seller is not a
party to any settlement agreement, consent or waiver
which restricts the use of such Intellectual Property in
connection with the Business. To the knowledge of the
Seller, no other person is infringing upon the Seller's
rights in the Intellectual Property, except as set forth
in Schedule 3.1(k).
(iii) Except as set forth on Schedule 3.1(k),
the Seller does not pay any royalty to anyone relating to
the Intellectual Property. There is no restriction or
limitation of Seller's rights to transfer the Intellectu-
al Property as herein contemplated.
(iv) Schedule 3.1(k) contains a complete and
accurate list of all contracts, licenses, agreements or
understandings, written or oral, Related to the Business,
pursuant to which (a) a third party is licensing its in-
tellectual property to the Seller, and (b) the Seller is
licensing any Intellectual Property to a third party (the
"Licenses"). The Seller is in compliance with all mate-
rial terms of the Licenses and to the knowledge of the
Seller each of the Licenses is in full force and effect.
All royalties due and payable under the Licenses have
been paid.
(l) Material Agreements. Listed on Schedule
3.1(l) is (i) each agreement, contract, license and per-
sonal property lease and sublease, written or oral,
Related to the Business involving an obligation of the
Seller or a Subsidiary or of the other party or parties
thereto of more than $100,000 in any year (other than
contracts cancelable upon up to sixty (60) days notice,
without penalty), (ii) each lease of real property Relat-
ed to the Business (collectively, the "Leases"), (iii)
each agreement which by its terms is over one year in
length of obligation of the Seller or a Subsidiary Relat-
ed to the Business (other than contracts cancelable upon
up to sixty (60) days notice, without penalty), (iv) each
agreement or contract which by its terms will result in a
loss to the Business in excess of $50,000, and (v) all
agreements or contracts which by their terms will result
in an aggregate loss to the Business in excess of
$500,000 (hereinafter collectively called the "Material
Agreements"). Except as set forth in Schedule 3.1(l)
hereto, to the knowledge of the Seller, none of the
Seller, any Subsidiary or the other party or parties to
any Material Agreement is in default with respect to any
material term or condition thereof and no event has oc-
curred which through the passage of time or the giving of
notice, or both, would constitute such a default. Nei-
ther the Seller nor any Subsidiary has received any
written notice of any default by the Seller or any Sub-
sidiary under any of the Material Agreements. The list
of Material Agreements on Schedule 3.1(e) hereto includes
all amendments and modifications to such Material Agree-
ments. Copies of all Material Agreements and Assumed
Contracts, including all supplements and amendments
thereto, have been or will be made available to the
Purchaser prior to the Closing.
(m) Employee Benefit Plans. (i) Schedule
3.1(m)(i) hereto lists all "employee benefit plans,"
within the meaning of Section 3(3) of ERISA, covering
persons employed or formerly employed in the United
States by the Division in connection with the Business
(the "U.S. Employees"). True and complete copies of all
plan documents and summary plan descriptions pertaining
to all such plans (the "ERISA Plans") have been, or as
soon as practicable after the date of this Agreement will
be, made available to the Purchaser.
(ii) All ERISA Plans are in substantial com-
pliance with ERISA. To the knowledge of the Seller, each
ERISA Plan intended to be qualified under Section 401(a)
of the Code has received a favorable determination letter
from the Internal Revenue Service (except with respect to
amendments to such ERISA Plans adopted after August 1,
1986), and the Seller is not aware of any circumstances
likely to result in revocation of any such favorable de-
termination letter. Except as set forth on Schedule
3.1(m)(ii) hereto, there is no material pending or, to
the knowledge of the Seller, threatened action, suit or
claim with respect to the ERISA Plans (other than routine
claims for benefits in the ordinary course). None of the
ERISA Plans is a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA.
(iii) Assuming the Purchaser makes the offers
of employment provided for in Section 4.7(a) hereof, the
consummation of the transactions contemplated by this
Agreement will not, in and of themselves, (a) entitle any
current or former employee of Seller or any Transferred
Employee (as defined in Section 4.7 hereof) to any sever-
ance pay, unemployment compensation or any other payment,
(b) accelerate the time of payment or vesting, or in-
crease the amount of compensation due to any such em-
ployees, or (c) result in any employment-related expenses
or liabilities, in every such case the full cost of which
will not be paid by Seller.
(iv) Schedule 3.1(m)(iv) sets forth a list of
all plans, agreements or arrangements pursuant to which
any Employee receives any employee benefits from Seller
or any Subsidiary, including without limitation, bonus,
deferred compensation, pension, profit-sharing, severance
and health insurance plans, agreements or arrangements
(the "Employee Plans"). Seller has provided the Purchas-
er with true and complete copies of all written Employee
Plans or true and complete summaries of all oral Employee
Plans.
(v) Schedule 4.7(a)(1) sets forth the annual
salary and job title of each of the Transferred Employ-
ees.
(n) Labor Matters. The Seller has paid in
full to, or accrued on behalf of, all Employees all
wages, salaries, vacation pay, commissions, bonuses and
other direct compensation for all services performed by
them to the date hereof and all amounts required to be
reimbursed to such Employees. Except as set forth on
Schedule 3.1(n), Seller has not been notified in writing
that any charges with respect to or relating to any
Employee are pending before the Equal Employment Opportu-
nity Commission or any other agency responsible for the
prevention of unlawful employment practices. Except as
set forth on Schedule 3.1(n), there are no employment
contracts or severance agreements with any Employees.
The Seller is not a party to any collective bargaining or
similar agreement with any labor organization, group or
association with respect to the Employees. To the knowl-
edge of the Seller, the Seller has not experienced, in
the past five (5) years, any attempt by organized labor
or its representatives to make the Seller conform to de-
mands of organized labor relating to the U.S. Employees,
or to enter into a binding agreement with organized labor
that would cover the U.S. Employees. Seller has not been
notified in writing that there are any unfair labor
practices, charges or complaints against the Seller with
respect to the Business pending before the National Labor
Relations Board or any other U.S. governmental agency
arising out of the Seller's activities in the United
States with respect to the Business; there is no labor
strike, material dispute, material slowdown or material
labor disturbance pending or, to the knowledge of the
Seller, threatened, nor is any grievance currently being
asserted, against the Seller with respect to the Business
in the United States; and the Business has not experi-
enced a labor strike, material dispute, material slow-
down, material labor disturbance or work stoppage during
the past five (5) years.
Since February 1, 1991, the Seller has not ef-
fectuated a "plant closing" or "mass layoff" (each as de-
fined in the Worker Adjustment and Retraining Notifica-
tion Act (the "WARN Act")) affecting any site of employ-
ment, operating unit or facility of the Seller Related to
the Business; nor has the Seller engaged in layoffs or
employment terminations sufficient in number to trigger
application of any similar U.S. state or local law relat-
ing to the Business. None of the Employees has suffered
an "employment loss" (as defined in the WARN Act) since
six months prior to the date hereof.
(o) Insurance. Schedule 3.1(o) contains a
complete and accurate list of all policies or binders of
fire, liability, worker's compensation and other forms of
insurance, including bonds but not including any insur-
ance related to Employees other than worker's compensa-
tion (showing as to each policy or binder the carrier,
coverage limits, expiration dates, deductibles or reten-
tion levels and a general description of the type of
coverage provided) maintained by the Seller or a Subsid-
iary with respect to the Business, any Purchased Assets,
any Assumed Liabilities or the Employees. The coverage
provided under such policies and binders is in full force
and effect on the date hereof and shall be kept in full
force and effect by the Seller through the Closing Date.
Neither the Seller nor any Subsidiary has been refused
any insurance coverage with respect to the Purchased As-
sets or the Business, nor has coverage been limited or
cancelled in any material respect by any insurance carri-
er to which the Seller or any Subsidiary has applied for
any such insurance or with which the Seller or any Sub-
sidiary has carried insurance.
(p) Environmental Matters. Except as set
forth in Schedule 3.1(p), to Seller's knowledge, the
Seller is in material compliance with all applicable
Environmental Laws, and the Seller is in possession of
all permits, licenses and other authorizations required
as of the Closing Date under applicable Environmental
Laws for the operation of the Business as presently con-
ducted, and to Seller's knowledge, is in compliance with
the terms thereof. Except as set forth in Schedule
3.1(p) hereto, neither the Seller nor any Material Sub-
sidiary has received any written claim, notice or com-
plaint from any governmental agency, or from any person
or group purportedly authorized to bring a private action
pursuant to a citizens suit provision of an Environmental
Law in the last five years, and to the knowledge of the
Seller, at any time, alleging that the Real Property or
the operation of the Business is in violation of any
Environmental Law. All permits and other governmental
authorizations currently held by the Seller or any Mate-
rial Subsidiary pursuant to the Environmental Laws are
identified in Schedule 3.1(p).
Except as set forth in Schedule 3.1(p), there
is no Environmental Claim pending or, to the knowledge of
Seller, threatened against the Seller or any Material
Subsidiary. Except as set forth on Schedule 3.1(p), to
Seller's knowledge, there are no past or present actions,
activities, circumstances, conditions, events or inci-
dents, including, without limitation, the release, emis-
sion, discharge, presence or disposal of any Material of
Environmental Concern, on the Real Property that could
form the basis of any Environmental Claim against the
Seller or any Material Subsidiary. Without in any way
limiting the generality of the foregoing, to Seller's
knowledge, (i) all on site locations where the Seller or
any Material Subsidiary has stored or disposed of Materi-
als of Environmental Concern are identified in Schedule
3.1(p), (ii) underground storage tanks, and the capacity
and contents of such tanks, located on the Real Property
are identified in Schedule 3.1(p), and (iii) except as
set forth in Schedule 3.1(p), no polychlorinated
biphenyls (PCB's) are used or stored at the Real Proper-
ty. To Seller's knowledge, since the date of acquisition
of the Owned Real Property by the Seller, the Owned Real
Property has not been used as a landfill or disposal site
for hazardous, industrial or municipal waste. The Seller
has not received any administrative or judicial order,
decree, judgment or directive issued by any federal,
state or local government or governmental agency or
authority relating to or which requires environmental
removal or remedial action (as defined under 42 U.S.C.A.
section 9601 (23) and (24)) at the Owned Real Property. To
Seller's knowledge, there is no lien on the Owned Real
Property filed by any federal, state or local government
or governmental agency or authority in connection with
the presence of any Materials of Environmental Concern on
or at the Owned Real Property.
(q) Subsidiaries. Schedule 1.2(G) hereto
lists (i) all of the Subsidiaries and the number of
shares of capital stock of each Stock Subsidiary out-
standing and such number owned beneficially and of record
by the Seller and (ii) each other corporation, partner-
ship, joint venture or other person which owns or holds
Purchased Assets or in which the Seller has made a finan-
cial investment Related to the Business. Each of the
Subsidiaries is duly organized and validly existing under
the laws of its jurisdiction of incorporation and has all
necessary corporate power to own all of its respective
properties and assets and to carry on its business as now
being conducted.
(r) Finders and Investment Bankers. Except
for the Seller's engagement of Goldman, Sachs & Co., the
Seller has not employed any broker or finder or incurred
any liability for any brokerage fees, commissions or
finders' fees in connection with the Purchase.
(s) Undisclosed Liabilities. To the knowledge
of the Seller, there are no liabilities or obligations,
secured or unsecured, whether absolute, accrued, contin-
gent or otherwise, and whether due or to become due
(hereinafter in this paragraph (s) and for purposes of
the definition of "Unknown Liabilities", "liabilities")
of the Business, except for (i) liabilities of the Busi-
ness that are or will be included as liabilities on the
Final Statement; (ii) liabilities contained in each As-
sumed Contract that is fully and effectively assigned to
the Purchaser; and (iii) Excluded Liabilities. Notwith-
standing the foregoing, the Seller makes no represen-
tation or warranty in this Section 3.1(s) with respect to
any Environmental Liability or Product Liability.
(t) Accounts Receivable. All accounts receiv-
able reflected on the Final Statement will be good and
collectible at the aggregate recorded amounts thereof
(net of the allowance for doubtful accounts, which allow-
ance will be adequate and consistent with past practic-
es). To the Seller's knowledge, such accounts receivable
will have arisen out of bona fide transactions in the
ordinary course of business and will be owned by the
Seller free and clear of all Liens.
(u) Inventory. All inventory of the Business
to be reflected on the Final Statement will be valued at
the lower of cost or market on a first-in, first-out
basis in accordance with generally accepted accounting
principles consistently applied and will consist of a
quantity and quality usable and salable in the ordinary
course of business, except for items of obsolete materi-
als and materials of below-standard quality which will be
written-down in the Final Statement to realizable market
value or for which adequate reserves will be provided
therein.
(v) Bank Accounts. Schedule 3.1(v) is a list
of the names and locations of all financial institutions
at which the Seller maintains in connection with the
Business a deposit account or other similar deposit or
safekeeping arrangement, the number or other identifica-
tion of all such accounts and arrangements and the names
of all persons authorized to draw thereon or have access
thereto.
(w) Disclosure. The representations and war-
ranties of the Seller in this Agreement and the state-
ments contained in the schedules, certificates and other
writings furnished and to be furnished by the Seller or
any Subsidiary to the Purchaser pursuant to this Agree-
ment when considered as a whole and giving effect to any
supplements or amendment thereof do not and will not con-
tain any untrue statement of a material fact and do not
and will not omit to state any material fact necessary to
make the statements herein or therein not misleading.
(x) Licenses and Permits. Except with respect
to licenses and permits related to Environmental Matters
and Intellectual Property, which are the subject of
Sections 3.1(p) and 3.1(k) herein, the material govern-
mental and third party licenses, permits, certificates,
consents, approvals, waivers, authorizations and regis-
trations (collectively, "Approvals") listed in Schedule
3.1(x) hereto constitute all the licenses and permits
necessary for the Business to be conducted as now being
conducted in all material respects. Each of such li-
censes and permits and the rights of the Seller or any
Subsidiary with respect thereto are valid and subsisting,
in full force and effect, and the Seller or such Subsid-
iary is in compliance in all material respects with the
terms of such licenses or permits. None of such licenses
or permits has been or, to the knowledge of the Seller,
is threatened to be, revoked, cancelled, suspended or
modified. Without in any way limiting the foregoing,
Seller has for each Owned Real Property located in the
United States a current, valid certificate of occupancy
and Seller's use of each such Owned Real Property is in
conformity with such certificate of occupancy in all
material respects.
(y) Taxes. (i) With respect to the Seller
and each Asset Subsidiary for the Pre-Closing Tax Period,
(A) except as set forth on Schedule 3.1(y)(i), all feder-
al, state, local and foreign Tax Returns required to be
filed by or on behalf of the Seller or any of the Asset
Subsidiaries Related to the Business have been duly filed
(or appropriate extensions filed) with the appropriate
taxing authorities; (B) except as set forth on Schedule
3.1(y)(i), all Taxes shown on such Tax Returns for such
Pre-Closing Tax Period have been paid or will be paid in
full when due or assessed; (C) except as set forth on
Schedule 3.1(y)(i), there are no pending examinations or
other audits by federal, state, local or, to the knowl-
edge of Seller, foreign taxing authorities Related to the
Business (other than any such audit or examination relat-
ing to income or franchise tax) and no outstanding issue
or claim is being asserted for Taxes (other than income
or franchise taxes) by any federal, state, local or, to
the knowledge of Seller, foreign taxing authority for any
Pre-Closing Tax Period; and (D) except as set forth on
Schedule 3.1(y)(i), there are no outstanding agreements
or waivers extending the statutory period of limitations
applicable to any federal, state, local or, to the knowl-
edge of Seller, foreign Tax Return (other than income or
franchise Tax Returns) of the Seller or any of the Asset
Subsidiaries Related to the Business.
(ii) With respect to each Stock Subsidiary for
the Pre-Closing Tax Period, except as set forth on Sched-
ule 3.1(y)(ii), (A) all foreign Tax Returns required to
be filed by or on behalf of each of the Stock Subsid-
iaries have been duly filed (or appropriate extensions
filed) with the appropriate taxing authorities and, to
the knowledge of Seller, such Tax Returns are true, cor-
rect and complete; (B) all Taxes shown on such Tax Re-
turns for such Pre-Closing Tax Period have been or will
be paid in full when due or assessed; (C) to the knowl-
edge of Seller, for all taxable years ending on or before
June 30, 1993, (1) the income or franchise Tax Returns
required to be filed by or on behalf of each of the Stock
Subsidiaries have been examined by the appropriate taxing
authority, or (2) the period during which any assessments
may be made by the taxing authority has expired, (D) to
the knowledge of Seller, all deficiencies and assessments
asserted in writing as a result of any examinations or
other audits by foreign taxing authorities have been paid
or fully settled and no issue or claim has been asserted
for Taxes by any foreign taxing authority for any Pre-
Closing Tax Period, other than those heretofore paid; and
(E) to the knowledge of Seller, there are no outstanding
agreements or waivers extending the statutory period of
limitations applicable to any foreign income Tax Return
of any of the Stock Subsidiaries.
3.2 Representations and Warranties of the
Purchaser. The Purchaser hereby represents and warrants
to the Seller as follows:
(a) Organization of the Purchaser. The Pur-
chaser is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction
of incorporation and has all necessary corporate power to
own, lease and operate all of its properties and assets
and to carry on its business as now being conducted.
(b) Authorization and Noncontravention. The
execution, delivery and performance of this Agreement has
been duly authorized by the Purchaser and no other corpo-
rate proceedings on the part of the Purchaser are neces-
sary to authorize this Agreement or the transactions con-
templated hereby. The Purchaser has full corporate power
and authority to enter into this Agreement and to perform
its obligations hereunder. This Agreement has been duly
and validly executed and delivered by the Purchaser and
constitutes a valid and legally binding obligation of the
Purchaser enforceable against the Purchaser in accordance
with its terms, subject to bankruptcy, insolvency, fraud-
ulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles. The
execution and the delivery by the Purchaser of this
Agreement and the consummation by the Purchaser of the
Purchase will not (i) violate any term or provision of
the Certificate of Incorporation or By-laws of the Pur-
chaser; (ii) conflict with or result in a breach of or
constitute a default under or result in the termination
of, or entitle any party to accelerate (whether after the
filing of notice or lapse of time or both), any agreement
to which the Purchaser is a party or by which it is bound
or to which any of its assets are subject, or result in
the creation of any lien or encumbrance upon any of said
assets, other than conflicts, breaches, defaults, termi-
nations, accelerations, liens or encumbrances which,
individually or in the aggregate, would not have a mate-
rial adverse effect on the assets, liabilities, business,
financial condition or results of operations of the busi-
ness of the Purchaser, taken as a whole, or materially
impair the ability of the parties hereto to consummate
the Purchase; or (iii) subject to the expiration of the
applicable waiting periods under the HSR Act, the Exon-
Florio Amendment and the GWB Act, violate or result in a
breach of or constitute a default under any judgment,
order, decree, law, rule, regulation or other restriction
of any court, government or governmental agency to which
the Purchaser is subject, other than violations, breaches
or defaults which, individually or in the aggregate,
would not have a material adverse effect on the assets,
liabilities, business, financial condition or results of
operations of the business of the Purchaser, taken as a
whole, or materially impair the ability of the parties
hereto to consummate the Purchase.
(c) Litigation. There are no written claims,
actions, suits, proceedings or government investigations
pending or, to the knowledge of the Purchaser, threatened
which seek to question, delay or prevent the consummation
of, or would materially impair the ability of the parties
hereto to consummate, the Purchase.
(d) Approvals and Consents. Except for com-
pliance with the HSR Act, the Exon-Florio Amendment, and
the GWB Act and other purely notice filings with certain
governmental agencies in Europe which the Purchaser has
made or will make in accordance with applicable regula-
tions, (1) there are no authorizations, approvals, con-
sents or waivers required to be obtained from, or notices
or filings required to be given to or made with, any gov-
ernment or governmental agency by the Purchaser in con-
nection with the Purchase, and (2) there are no autho-
rizations, approvals, consents or waivers required to be
obtained by the Purchaser from any third party or notices
to be given to any third party by the Purchaser in con-
nection with the Purchase.
(e) Finders and Investment Bankers. Except
for the Purchaser's engagement of CS First Boston Corpo-
ration, the Purchaser has not employed any broker or
finder or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with the
Purchase.
(f) Access to Funds. The Purchaser has, or
has immediate access to, and will have on the Closing
Date, sufficient cash to meet its obligations under Sec-
tions 2.2 and 2.4 hereof.
(g) Disclosure. The representations and war-
ranties of the Purchaser in this Agreement and the state-
ments contained in the schedules, certificates and other
writings furnished and to be furnished by the Purchaser
to the Seller pursuant to this Agreement when considered
as a whole and giving effect to any supplements or amend-
ment thereof do not and will not contain any untrue
statement of a material fact and do not and will not omit
to state any material fact necessary to make the state-
ments herein or therein not misleading.
ARTICLE IV
Covenants
4.1 Operation of The Business. From the date
hereof until the Closing Date, the Business shall be
operated in the ordinary course of business consistent
with past practice. Without limiting the generality of
the foregoing, except as otherwise contemplated by this
Agreement or consented to by the Purchaser (which consent
will not be unreasonably withheld), the Seller covenants
and agrees with respect to the Business that it will not:
(a) terminate or amend, or fail in any materi-
al respect to perform material obligations under any
Material Agreement;
(b) sell, transfer, mortgage or otherwise dis-
pose of, or encumber, any Purchased Assets having a
value, individually or in the aggregate, in excess of
$100,000, other than in the ordinary course of business
consistent with past practice;
(c) issue, contract to issue, or cause to be
issued or contracted to issue, on behalf of the Business,
additional debt (excluding trade accounts payable in ac-
cordance with their terms) or guarantees of debt;
(d) make or become obligated to make any capi-
tal expenditures in excess of $50,000 for any single
project or $250,000 in the aggregate or enter into any
commitments therefor, other than as described in Schedule
4.1 hereto;
(e) commit to any expenditures in excess of
$50,000 individually or $250,000 in the aggregate, other
than expenditures in the ordinary course of business;
(f) fail to maintain in full force and effect
substantially the same level and types of insurance
coverage as in effect on June 30, 1993;
(g) change its accounting methods, principles
or practices;
(h) materially revalue any assets or material-
ly write down the value of any inventory;
(i) (A) increase the compensation payable or
to become payable to any Employee, other than regular,
scheduled compensation increases, or (B) make any in-
crease in any bonus plan, insurance, pension or other
employee benefit plan, payment or arrangement made to,
for or with any Employee other than pursuant to the terms
of any such plan or as a result of a regularly scheduled
compensation increase;
(j) waive or release any rights or claims ex-
ceeding $50,000 in the aggregate, other than settlements
of accounts receivable in the ordinary course of business
not to exceed $100,000 in the aggregate;
(k) (i) dispose of or allow to lapse (other
than by operation of law), or otherwise fail to preserve,
any Intellectual Property, dispose of or allow to lapse
(other than by operation of law) any material license,
permit or other form of authorization, or (ii) dispose of
or disclose to any person, other than authorized repre-
sentatives of the Purchaser, any material trade secret,
formula, process or know how of the Seller or any Sub-
sidiary Related to the Business, except pursuant to non-
disclosure or secrecy agreements entered into in the
ordinary course of business; or
(l) agree to do any of the foregoing.
4.2 Preservation of Business. From the date
hereof until the Closing Date, the Seller shall use
reasonable efforts to keep the Business substantially
intact and to maintain satisfactory relations with the
Employees and with the suppliers and customers of the
Business.
4.3 Approvals and Consents; Cooperation. (a)
The parties hereto shall use reasonable efforts, and
cooperate with each other, to obtain all governmental and
third party authorizations, approvals, consents or waiv-
ers required in order to consummate the Purchase, includ-
ing, without limitation, pursuant to the Exon-Florio
Amendment and the GWB Act; provided, however, that nei-
ther the Seller nor the Purchaser shall be required to
pay any other consideration therefor. Subject to the
foregoing and the other terms and conditions set forth
herein, each of the parties hereto agrees to use its rea-
sonable efforts to take, or cause to be taken, all ac-
tions, and to do, or cause to be done, all things neces-
sary, proper or advisable to consummate the Purchase.
(b) As promptly as reasonably practicable
after the execution hereof, the Purchaser and the Seller
shall make their respective filings under the HSR Act,
the Exon-Florio Amendment, and the GWB Act and each party
shall be responsible for the payment of its respective
filing fees.
4.4 Access. From the date hereof until the
Closing, (a) the Seller will furnish to the Purchaser any
information with respect to the Business as the Purchaser
may from time to time reasonably request, and (b) the
Purchaser may, at its discretion, locate one of its
representatives at the Division's headquarters located in
Westbury, New York, subject to the restrictions set forth
in the next sentence; and provided further that the
Seller shall be permitted to restrict access by such
representative to any Employee to the extent that the
Seller determines, in its sole discretion, that such
access could result in the disclosure of competitive
information related to the Seller or the Business.
Beginning immediately upon the execution hereof, the
Seller, upon reasonable notice by the Purchaser, shall
give or cause to be given to the Purchaser and to its
accountants, counsel and other authorized representa-
tives, during regular business hours, in a manner so as
not to unduly disrupt the business of the Seller or the
Business, reasonable access to all of the properties,
documents and records Related to the Business except to
the extent that such access would violate any governmen-
tal regulation, law or order to which the Business or the
Employees are subject; provided, however, that the Seller
shall have the right to have a representative present at
all such times; and provided, further, that such access
shall be at the expense and risk of the Purchaser, and
the Purchaser shall indemnify and hold harmless the
Seller from and against any loss, expense, damage, lia-
bility or claim arising from the Purchaser's negligence
or misconduct during such access in accordance with
Article VI hereof.
4.5 Taxes and Fees. (a)(i) Seller shall
timely prepare and file, or cause to be prepared and
filed, all Tax Returns of any Stock Subsidiary for the
Pre-Closing Tax Period and Seller shall timely pay, or
cause to be paid, when due all Taxes relating to such Tax
Returns (including any such Taxes assessed or due after
the Closing Date). Such Tax Returns shall be prepared or
completed in a manner consistent with prior practice of
Seller and the Stock Subsidiaries (including elections
and accounting methods and conventions), except as other-
wise required by law or regulation or otherwise agreed to
by Purchaser prior to the filing thereof, and such Tax
Returns shall be true, correct and complete to the knowl-
edge of Seller. Purchaser shall cooperate with Seller in
connection with the preparation and filing of such Tax
Returns (including, without limitation, by causing the
Stock Subsidiaries to sign such Tax Returns, provided
such Tax Returns are prepared or completed in a manner
consistent with the prior sentence). No later than five
(5) business days prior to the due date for any such Tax
Return, Seller shall provide Purchaser with a signature
copy of such Tax Return. Promptly after receipt of such
Tax Return, Purchaser shall notify Seller of any reason-
able objections Purchaser may have to the filing of such
Tax Returns and Purchaser and Seller agree to consult and
resolve in good faith any such objection to the signing
of any such Tax Return; provided, however, that in the
event such resolution fails, Purchaser and Seller agree
to submit any such Tax Return to the Independent Account-
ing Firm whose determination as to the propriety of
filing such Tax Return shall be binding, and to share
equally any and all expenses associated with such consul-
tation.
(ii) For any taxable period beginning after
the Closing Date, Purchaser shall timely prepare and
file, or cause to be prepared and filed, all Tax Returns
of the Stock Subsidiaries, and such Tax Returns shall be
true, correct and complete to the knowledge of Purchaser,
and shall timely pay, or cause to be paid, when due all
Taxes relating to such Tax Returns.
(iii) Any Taxes described in this Section
4.5(a)(iii) due with respect to Seller, or any Subsidiary
that relate to any Straddle Period shall be apportioned
between Purchaser and Seller with respect to the portions
of any such period before and after the Closing Date, (x)
with respect to Seller or any Subsidiary, in the case of
real and personal property, use and intangible Taxes (in
the case of Seller or any Asset Subsidiary to the extent
such Taxes are Related to the Business), on a per diem
basis and, where applicable, in accordance with the
provisions of Code Section 164(d), and (y) with respect
to any Stock Subsidiary, in the case of other Taxes,
based on a deemed closing of the books of the Stock
Subsidiaries as of the Closing Date, with all standard
exemptions, deductions, progressivity in rates and other
items with respect to the full Straddle Period allocated
between the portion of the Straddle Period falling in the
Pre-Closing Tax Period and the remainder of such Straddle
Period on a per-diem basis; provided, however, that in no
event shall either party's obligation with respect to its
portion of a particular Straddle Period Tax of a Stock
Subsidiary as calculated under this clause (y) exceed the
liability for that particular Tax of such Stock Subsid-
iary for such Straddle Period. Straddle Period Tax
Returns other than those relating to Stock Subsidiaries
shall be prepared and timely filed by the entity respon-
sible for filing such Tax Returns under local law, regu-
lation or custom, and Seller or Purchaser, as the case
may be, shall cause such entity to timely file such Tax
Returns and timely pay and Tax due with respect to such
Tax Returns when due or assessed. To the extent that
any Tax Returns of a Stock Subsidiary with respect to any
Straddle Period are due on or prior to the Closing (tak-
ing into account applicable extensions), Seller shall
timely prepare and file, or cause to be prepared and
filed, all such Returns and shall timely pay, or cause to
be paid when due, all Taxes relating to such Returns. To
the extent any Tax Returns of a Stock Subsidiary with re-
spect to any Straddle Period are due after the Closing
(taking into account applicable extensions), Purchaser
shall timely prepare and file, or cause to be prepared
and filed, all such Tax Returns and shall timely pay, or
cause to be paid when due, all Taxes relating to such Tax
Returns. All Straddle Period Tax Returns shall be pre-
pared in a manner consistent with past practice of Seller
or the relevant Subsidiary and in a manner that does not
distort the taxable income or loss or Tax liability of
Seller, any Subsidiary, Purchaser or any affiliate of the
foregoing, except as required by law or regulation or
otherwise agreed to by Purchaser and Seller and such Tax
Returns shall be true, complete and correct to the best
knowledge of the party responsible for filing such Tax
Return under this Section 4.5(a)(iii) (the "Filing Par-
ty"). At least fifteen (15) business days prior to the
due date for filing (including extensions) of any Strad-
dle Period Tax Return due after Closing, the Filing Party
shall provide the other party with a substantially final
draft of such Tax Return and a notice setting forth in
reasonable detail the calculations regarding the other
party's share of Straddle Period Taxes shown as due on
such Tax Return (calculated as described in this Section
4.5(a)), and the other party shall have the right to
review such Tax Return and such notice. The other party
shall notify the Filing Party of any reasonable objec-
tions the other party may have to any items set forth in
such Tax Return and to the Filing Party's calculations
regarding the other party's share of Straddle Period
Taxes, and the parties agree to consult and resolve in
good faith any such objection to the calculation of
Straddle Period Taxes and the filing of such Tax Returns
and to mutually consent to the filing of such Tax Re-
turns; provided, however, that in the event such resolu-
tion fails, each party agrees to submit any such Tax
Return to the Independent Accounting Firm, whose determi-
nation as to the calculation of Straddle Period Taxes and
the propriety of filing such Tax Return shall be binding,
and to share equally any and all expenses associated with
such consultation.
(iv) To the extent a Straddle Period Tax has
been paid in full by Seller or any Subsidiary (or an
affiliate of any of them) prior to the Closing (excluding
any estimated or like Tax payments), Purchaser shall pay
to Seller at Closing the amount of any such Taxes appor-
tioned to Purchaser under the first sentence of paragraph
4.5(a)(iii). With respect to all other Straddle Period
Taxes, Seller shall pay Purchaser (but only to the extent
not paid by Seller or any Subsidiary or an affiliate of
any of them) or Purchaser shall pay Seller, as the case
may be, the amount apportioned to the relevant party
under the first sentence of paragraph 4.5(a)(iii) the
later of the payment date of the Straddle Period Tax or
within fifteen (15) business days of receipt of the
notice described in Section 4.5(a)(iii) (or at such other
time as is mutually agreed by the parties) by Seller or
Purchaser, respectively. Seller and Purchaser shall
adjust the amount of Straddle Period Taxes apportioned
under the first sentence of paragraph 4.5(a)(iii) in the
event of a change in the amount of such Taxes due as a
result of any audit, examination, claim for refund or
otherwise and, subject to the provisions of this Section
4.5, make appropriate payments reflecting such adjust-
ments.
(b)(i) Seller shall be entitled to retain, or
receive payment from the Purchaser and any Subsidiary of
any refund or credit with respect to Taxes (including,
without limitation, refunds and credits arising by reason
of the carryover or carryback of any deduction, loss or
credit to any Pre-Closing Tax Period or Seller's portion
of any Straddle Period or the filing of an amended return
for any such periods) that are described as being the
responsibility of the Seller in Section 4.5(a). Purchas-
er shall promptly forward to or reimburse Seller for any
such refunds or credits due Seller after the receipt
thereof by Purchaser or the Subsidiaries.
(ii) Purchaser and the Subsidiaries shall be
entitled to retain, or receive payment from the Seller
of, any refund or credit with respect to Taxes that are
described as being the responsibility of Purchaser in
Section 4.5(a) and that are not due to Seller under
Section 4.5(b)(i). Seller shall promptly forward to or
reimburse Purchaser for any such refunds or credits due
Purchaser after the receipt thereof.
(c) Seller shall control the representation of
the interests of Seller and any Stock Subsidiaries in any
Tax audit or administrative or court proceeding relating
to Tax Returns described in Section 4.5(a) with respect
to which Seller may be liable for Taxes pursuant to this
Agreement; provided, however, that Seller will consult
with Purchaser regarding any Tax issue of a Stock Subsid-
iary that may affect the Tax liability of Purchaser, any
of its affiliates or any Stock Subsidiary for any period
ending after the Closing Date and that where a particular
Tax issue of a Stock Subsidiary would in the reasonable
opinion of Purchaser, have an adverse effect on the Tax
liability of Purchaser, any of its affiliates or any
Stock Subsidiary for any period ending after the Closing
Date, Purchaser shall have the right, at its discretion
after good faith consultation with Seller, to release
Seller from its obligation to indemnify Purchaser with
respect to such Tax issue by a written agreement mutually
agreed to by Seller and Purchaser and, in that event, to
participate in any such audit or proceeding and control
the representation of the interest of the relevant Stock
Subsidiary solely with respect to such Tax issue and to
employ counsel of its choice at its own expense for
purposes of such participation. Purchaser and Seller
mutually agree to consult and cooperate with each other
so that the transfer of control is effected in a manner
that will minimize any disruption to any such audit or
proceeding and so that Seller is not prejudiced in any
such audit or proceeding. Notwithstanding anything to
the contrary contained or implied in this Agreement,
without the prior approval of Purchaser, Seller shall not
agree to compromise any issue or claim arising in any
audit or proceeding covered by this Section 4.5(c) to the
extent that any such compromise would affect the Tax
liability of Purchaser, any of its affiliates, or any
Stock Subsidiary for any period ending after the Closing
Date (including a Straddle Period).
(d) Each party shall promptly notify the other
party in writing upon receipt by the notifying party, or
any affiliate of the notifying party, of notice of any
pending or threatened Tax audits or assessments relating
to Seller or any Asset Subsidiary (in each case only to
the extent Related to the Business) or any Stock Subsid-
iary, in each case for Pre-Closing Tax Periods and Strad-
dle Periods only.
(e) After the Closing Date, Purchaser and
Seller shall provide each other with such cooperation and
information relating to Seller or any Asset Subsidiary
(in each case only to the extent Related to the Business)
or Stock Subsidiary as either party reasonably may re-
quest in filing any Tax Return, determining any Tax
liability or a right to refund of Taxes, conducting or
defending any audit or other proceeding in respect of
Taxes or effectuating the terms of this Agreement. Any
information obtained under this Section 4.5(a) shall be
kept confidential, except as may be otherwise necessary
in connection with filing any Tax Return, amended return,
or claim for refund, determining any liability or a right
to refund of Taxes, or in conducting or defending any
audit or other proceeding in respect of Taxes. Purchaser
and Seller agree that the party requesting such coopera-
tion or information shall reimburse the other party for
the reasonable out-of-pocket costs and expenses incurred
in providing such cooperation or information. Notwith-
standing the foregoing, neither Seller nor Purchaser, nor
any of their affiliates, shall be required unreasonably
to prepare any document, or determine any information not
then in its possession, in response to a request under
this Section 4.5(e).
(f) All transfer, sales, use, recording, ad
valorem, real property transfer, real property convey-
ance, documentary, notarial, excise, value added, stamp
and other like Taxes, fees and expenses (the "Transfer
Taxes") which may be due or payable in connection with
the consummation of the Purchase, including without
limitation, fees and expenses in connection with the
transfer or the Intellectual Property, shall be paid and
borne by Purchaser and Seller equally, with the exception
of any tax imposed on the transfer of real property and
measured solely by the excess, if any, between the amount
of Aggregate Consideration (as hereinafter defined)
allocated to such real property and Seller's original
purchase price (or basis, if applicable) for such real
property (a "Real Property Transfer Gains Tax"), which
shall be paid and borne by Seller. Such payments shall
not be treated as either an increase or reduction in
Aggregate Consideration. To the extent that Buyer,
Seller or any Subsidiary is entitled to a refund of any
Transfer Taxes paid pursuant to this Section 4.5(f), the
party so entitled shall file for a refund of such Trans-
fer Taxes, which refund shall be shared equally by Seller
and Buyer; provided, however, that any refunds of Real
Property Transfer Gains Taxes shall be solely for the
account of the Seller. The party that applies for such
refund shall promptly pay over to the other party that
other party's portion of such refund upon receipt thereof
by the applying party (or any affiliate).
(g) On or before the Closing Date, Purchaser
and Seller shall (to the extent required by law) com-
plete, execute, deliver and verify any return, question-
naire, affidavit, resale certificate, certificate of
registration, or other document required in connection
with any Tax, including but not limited to Transfer
Taxes, relating to the sale of the Purchased Assets,
including any pre-filing documents (including, without
limitation, any filing required by the New York State
real property transfer gains tax provisions).
(h) Any indemnification payments made pursuant
to this Agreement, shall, to the extent permitted by
applicable law, be treated as an adjustment to the pur-
chase price.
(i) Prior to the Closing, the Purchaser and
the Seller shall agree to an allocation of the Aggregate
Consideration among the Purchased Assets. The Purchaser
and the Seller represent, warrant and agree that the fair
market values of the assets included in the Purchased
Assets will be determined through arm's length negotia-
tions, provided, however, that in no event shall the
amount allocated to New York state real property (includ-
ing, without limitation, land, buildings, fixtures and
improvements) exceed $6,000,000. Such allocation in any
event shall comply with the requirements of Section 1060
of the Code. The Seller and the Purchaser agree that, to
the extent permitted by applicable law, they shall file
all income tax returns and reports in accordance with and
based upon such allocation and shall take no position in
any income tax return, proceeding or audit which is
inconsistent with such allocation. As used in this
Section 4.5(i), the term "Aggregate Consideration" shall
mean the sum of the Purchase Price paid pursuant to this
Agreement and the amount of the Assumed Liabilities of
the Seller and the Asset Subsidiaries, each as adjusted
pursuant to this Agreement. Notwithstanding any other
provision of this Agreement, the foregoing agreement
shall survive the Closing Date without limitation. Each
of the Purchaser and the Seller shall timely file a
federal form 8594 in accordance with the requirements of
Section 1060 of the Code and the regulations thereunder.
(j) Seller shall furnish to the Purchaser such
information as is necessary for the application of the
incremental research credit provisions of Section
41(f)(3)(A) of the Code.
(k) With respect to that certain Profit & Loss
Pooling Agreement dated April 8, 1992 between Perkin-
Elmer Holding GmbH Uberlingen (PEH) and Perkin-Elmer
Metco GmbH Hattersheim (Metco Gmbh), Purchaser shall
promptly reimburse Seller for any payment made by PEH to
Metco GmbH pursuant to that agreement if such payments
are made after the Closing Date due to the requirements
of German law and the statutory audit. Any such reim-
bursement by Purchaser shall be considered an adjustment
to the Purchase Price. Seller shall cause PEH to prompt-
ly reimburse Metco GmbH, or Purchaser shall cause Metco
GmbH to reimburse PEH, as the case may be, for any amount
due to or from either Metco GmbH or PEH with respect to
the VAT account between PEH and Metco GmbH promptly after
the determination thereof and in any case prior to the
time for payment thereof.
4.6 Preservation of Records. The Purchaser
agrees that it shall cause to be preserved and kept the
records of the Seller Related to the Business delivered
to it hereunder for a period of six (6) years from April
15, 1995, or for any longer period as may be required by
applicable law or in connection with any ongoing litiga-
tion, and shall make such records (for the period of time
referred to above) and employees of the Purchaser (for an
unlimited period of time) available to the Seller as may
be reasonably required by the Seller in connection with
any legal proceedings involving, or governmental investi-
gations or tax examinations of, the Seller. In the event
the Purchaser wishes to destroy such records after that
time, it shall first give ninety (90) calendar days'
prior written notice to the Seller and the Seller shall
have the right at its option, upon notice given to the
Purchaser within said 90-day period, to take possession
of said records.
4.7 Employee Benefits and Related Matters.
(a) Covenants of the Purchaser. (i) Within a
reasonable period of time prior to Closing, the Purchaser
shall make offers of employment, which employment shall
be effective as of the Closing Date and subject to con-
summation at the Closing of the transactions contemplated
hereby, to (X) every employee of the Division who is on
the date hereof employed in the Business in the United
States and who is listed on Schedule 4.7(a)(1) (the
"United States Transferred Employees"), (Y) every em-
ployee of the Division who is on the date hereof employed
in the Business outside the United States by a Stock
Subsidiary or an Asset Subsidiary and who is listed on
Schedule 4.7(a)(1) (the "Foreign Transferred Employees"),
and (Z) every other employee hired by the Division in the
ordinary course of business from the date hereof to the
Closing to be employed by the Division in the United
States or in a foreign location and who will be listed on
an amendment to Schedule 4.7(a)(1) which will be deliv-
ered to the Purchaser prior to the Closing (the "New
Transferred Employees"). The United States Transferred
Employees, the Foreign Transferred Employees, and the New
Transferred Employees are referred to herein collectively
as the "Transferred Employees." Such offers of employ-
ment shall be at the job title and annual salary set
forth opposite the respective Transferred Employees'
names on Schedule 4.7(a)(1), as the same may be updated
by the Seller from time to time prior to the Closing. In
addition, as part of its offer of employment to all
Transferred Employees: (A) the Purchaser shall offer a
severance plan containing severance benefits payable upon
any termination of such Transferred Employee's employment
after the Closing as set forth in Schedule 4.7(a)(2)
hereto (the "Purchaser Severance Plan"); (B) the Purchas-
er shall offer such Transferred Employees such other
terms and conditions set forth on Schedule 4.7(a)(2)
hereto including the opportunity to participate in the
other plans, arrangements, commitments, benefits and
payroll practices (including severance, pension and
welfare plans) set forth on Schedule 4.7(a)(2); (C) the
Purchaser's medical plan shall not contain any exclusion
or limitation with respect to any pre-existing condi-
tions; (D) the Purchaser shall cause the Purchaser's
medical plan to recognize any out-of-pocket medical and
dental expenses incurred by Transferred Employees and
their eligible dependents prior to the Closing Date and
during the calendar year in which the Closing Date occurs
for purposes of determining the deductibles and out-of-
pocket maximums applicable to such Transferred Employees;
(E) the Purchaser shall credit each Transferred Employee
for time of service with the Division and the Seller for
purposes of eligibility, vesting and benefit accrual (in-
cluding vacation entitlement) under all such employee
benefit plans maintained by the Purchaser (including,
without limitation, the Purchaser Severance Plan); (F)
for a period of two years following the Closing Date, the
Purchaser will not reduce the benefits available under
the Purchaser Severance Plan nor the aggregate level of
employee benefits (when such benefits are considered as a
whole) offered to such Transferred Employees; and (G)
with respect to any Transferred Employee employed by the
Division outside the United States, the Purchaser shall
comply with all applicable legislation affecting such
employee's rights upon a transfer of a business. The
Purchaser will give each Transferred Employee an opportu-
nity to ask and have answered prior to the Closing any
questions such Transferred Employee may have regarding
the foregoing offer of employment and shall, if requested
by the Seller, provide written confirmation to the Seller
of such offers of employment.
(ii) Based upon (x) the Purchaser's review and
analysis of all information provided by the Seller con-
cerning the severance, pension, welfare and other em-
ployment plans and policies currently being provided by
the Seller to the United States Transferred Employees
(the "Seller's United States Plans"), (y) discussions
between the Purchaser's representatives and the Seller's
representatives concerning the Seller's United States
Plans, and (z) the Purchaser's review of the Seller's
United States Plans, the Purchaser believes that the
aggregate benefits to be provided by the Purchaser's
severance, pension, welfare and other employment plans
and policies to the United States Transferred Employees
following the Closing (the "Purchaser's United States
Plans") are comparable in the aggregate to the Seller's
United States Plans. The Purchaser agrees to offer the
Seller reasonable cooperation and consultation in connec-
tion with the Seller's supporting or defending the compa-
rability of the Purchaser's United States Plans, includ-
ing in connection with ordinary course communications
with the United States Transferred Employees (including
the introduction and explanation of the employee benefits
provided by the Purchaser); grievances or complaints by
the United States Transferred Employees in respect of
such comparability; and administrative or judicial pro-
ceedings commenced by a United States Transferred Employ-
ee in respect of such comparability. Such cooperation
shall include making available employees and records of
the Purchaser as reasonably requested by the Seller,
providing information and analyses prepared by the Pur-
chaser with respect to the Purchaser's comparability
analysis and offering reasonable consultation to the
Seller in connection with the Seller's defense of any
administrative or judicial proceeding or employee griev-
ance or complaint with respect to the comparability of
employee benefits. Notwithstanding the foregoing:
(1) the provisions of this paragraph (a)
shall not grant to any such persons any right to contin-
ued employment if the Purchaser elects to terminate any
such person's employment;
(2) the severance benefits offered to any
Transferred Employee and payable upon any termination of
such Transferred Employee after the Closing shall be as
set forth on the Purchaser Severance Plan;
(3) except as otherwise expressly provid-
ed herein, nothing contained in this Agreement shall be
construed to obligate the Purchaser to assume, provide,
sponsor, maintain or contribute to any employee benefit
plans, arrangements, commitments and payroll practices
(whether or not such plan, arrangement, commitment or
practice is an "employee benefit plan" as defined in
Section 3(3) of ERISA), including, without limitation,
with respect to sick leave, vacation pay, severance pay,
salary continuation for disability, consulting or other
compensation arrangements, retirement, deferred compensa-
tion, bonus, incentive compensation, stock purchase,
stock option, health including hospitalization, medical
and dental, life insurance, scholarship plans or programs
and "Multiemployer Plans" (as such term is defined by
Section 4001(a)(3) of ERISA), maintained by the Seller
for the benefit of any such Transferred Employees or to
which the Seller has contributed or is or was obligated
to make payments); and
(4) the Purchaser shall not be required
to offer employment to any employee of the Division who
is receiving either short-term or long-term disability
benefits under a short-term or long-term disability plan
of the Seller or a Subsidiary as of the Closing Date, and
such employee shall not be considered a Transferred
Employee, unless and until such employee is able to
resume active employment within one year after the Clos-
ing Date.
(b) Severance Liability of the Purchaser.
Notwithstanding any provisions of any severance or other
similar plan maintained by the Seller for the benefit of
any Transferred Employee, the Purchaser shall have no
liability for any severance or other similar payment
under any plan maintained by Seller to any Transferred
Employee to whom it makes an offer of employment in
conformity with the terms of Section 4.7(a), nor shall
the Purchaser have any liability to the Seller for any
severance or other similar payment to any Transferred
Employee to whom the Purchaser makes such an offer of
employment. If the Purchaser fails to make an offer of
employment in conformity with Section 4.7(a) to any
Transferred Employee and if, by reason of such failure,
the Seller is subject to an obligation for a severance or
other similar payment to such Transferred Employee, the
Purchaser shall discharge such obligation either by
making such payment directly to the Transferred Employee
or by reimbursing the Seller for such payment by the
Seller. Notwithstanding the foregoing, the Purchaser
shall be liable for any severance or other similar pay-
ment required to be made to any Transferred Employee
under the terms of the Purchaser Severance Plan. To the
extent that any employment termination pay has been
funded in Italy, the Seller shall transfer to the Pur-
chaser the portion of the fund attributable to the Trans-
ferred Employees employed by the Division in Italy to
whom offers of employment have been made in conformity
with Section 4.7(a) and accepted.
(c) For purposes of allocating responsibility
for claims incurred by Transferred Employees and their
covered dependents between the Seller's welfare plans and
the Purchaser's welfare plans, the following rules shall
apply (for purposes of this paragraph (c), references to
the Seller and its plans shall, where appropriate, be
references to the applicable Subsidiary and its plans):
(i) The Seller's short-term and long-term dis-
ability plans shall continue to be responsible for long-
term disability benefits payable to any Transferred
Employee who is receiving short-term or long-term dis-
ability benefits as of the Closing Date, until such time
as such Transferred Employee resumes active employment
with the Purchaser. The Purchaser's short-term and long-
term disability plans shall be responsible for all other
disability benefits payable to Transferred Employees on
and after the Closing Date. Any period of short-term
disability incurred by a Transferred Employee under the
Purchaser's short-term disability plan shall count to-
wards the waiting period for long-term disability bene-
fits under the Purchaser's long-term disability plan.
(ii) With respect to all other welfare bene-
fits, the Seller's plans shall be responsible for claims
incurred by Transferred Employees and their covered
dependents prior to the Closing Date, and the Purchaser's
plans shall be responsible for claims incurred on and
after the Closing Date. A claim shall be deemed incurred
when an individual obtains professional services, equip-
ment or prescription drugs covered by a medical, pre-
scription drug, dental or vision benefit plan, upon death
in the case of a life insurance plan, and as of the date
of the accident in the case of an accidental death and
dismemberment plan.
(iii) Notwithstanding the foregoing, the
Seller's plans shall be responsible for the cost of all
professional services, equipment and prescription drugs
provided during a hospital stay or similar confinement of
a Transferred Employee or his or her covered dependent
that begins prior to the Closing Date and ends after the
Closing Date (subject to the terms and conditions of the
Seller's applicable plans), and the Purchaser's plans
shall be responsible for the cost of all professional
services, equipment and prescription drugs obtained by
such Transferred Employee or covered dependent after the
termination of such hospital stay or similar confinement
(subject to the terms and conditions of the Purchaser's
applicable plans).
(d) No Third-Party Beneficiaries. No provi-
sion of this Section 4.7 shall create any third-party
beneficiary rights in any person or organization, includ-
ing, without limitation, employees or former employees
(including any beneficiary or dependent thereof) of the
Seller or the Purchaser or any of their respective affil-
iates, unions or other representatives of such employees
or former employees, or trustees, administrators, partic-
ipants or beneficiaries of any employee benefit plan, and
no provision of this Section 4.7 shall create such third-
party beneficiary rights in any such person or organiza-
tion in respect of any benefits that may be provided,
directly or indirectly, under any employee benefit plan
or arrangement, including the currently existing plans of
the Seller or the Purchaser.
4.8 Confidentiality. The terms of the letter
agreement dated as of September 14, 1993 (the "Confiden-
tiality Agreement") between the Seller and the Purchaser
are incorporated by reference herein and shall apply with
full force and effect to the Purchaser for the term set
forth therein; provided, however, that after the Closing,
the Purchaser shall be free to use any confidential
information Related to the Business in any manner that it
desires.
4.9 Use of Name. On the Closing Date, the
Purchaser shall cease using the name "Perkin-Elmer" or
any variation thereof in connection with the operation of
the Business or as part of any corporate, partnership or
assumed name and shall file such documents as are neces-
sary and appropriate to change any such corporate, part-
nership or assumed name to a dissimilar name and shall
promptly assume a dissimilar name for all purposes of the
Business; provided, however, that for a period of one
year from the Closing Date, the Purchaser may sell and
distribute (a) all inventory existing on the Closing Date
bearing the name "Perkin-Elmer" and (b) any inventory
manufactured after the Closing Date with labels bearing
the name "Perkin-Elmer" which were in stock or ordered on
the Closing Date.
4.10 Transition Services. For a period of six
(6) months following the Closing Date, the Seller shall
make available to the Purchaser those support and admin-
istrative services, including, without limitation, com-
puter and data processing services and any software
associated therewith, currently being provided by the
Seller to the Business on a basis substantially consis-
tent with the Seller's recent historical practice re-
quested by the Purchaser. The Purchaser will reimburse
the Seller for the cost (including without limitation,
any documented surcharges imposed by outside vendors) of
such services promptly upon (but not more than thirty
(30) calendar days following) the receipt of an invoice
from the Seller therefor.
4.11 Current Information. During the period
from the date of this Agreement to the Closing Date, the
Seller will notify the Purchaser of any material change
in the normal course of business or operations of the
Business and the receipt of any governmental complaints,
formal investigations or hearings (or communications
indicating that the same may be contemplated), or the
institution or written threat or settlement of material
litigation, in each case Related to the Business, and to
keep the Purchaser fully informed of such events.
4.12 Disclosure Supplements. From time to
time prior to the Closing Date, the Seller will promptly
supplement or amend the Schedules made a part of this
Agreement with respect to any matter hereafter arising
which, if existing or occurring at or prior to the date
of this Agreement, would have been required to be set
forth or described in a Schedule hereto or which is
necessary to correct any information in a Schedule hereto
or in any representation and warranty of the Seller which
has been rendered inaccurate thereby. For purposes of
determining the accuracy of the representations and
warranties of the Seller contained in this Agreement in
order to determine the fulfillment of the conditions set
forth in Section 5.2(a), the Schedules delivered by the
Seller shall be deemed to include only that information
contained therein on the date of this Agreement and shall
be deemed to exclude any information contained in any
subsequent supplement or amendment thereto. For purposes
of determining any liability of the Seller hereunder or
otherwise after the Closing, the Schedules delivered
hereunder shall be deemed amended by any information
supplied by the Seller as contemplated by this Section
4.12.
4.13 Covenant Not to Compete. (a) The Seller
agrees that it will not, for a period of five years fol-
lowing the Closing Date, (i) directly or indirectly own,
manage, operate, finance or participate in the ownership,
management, operation or financing of, any business which
is competitive with the Business, (ii) engage in any
other manner in any business which is competitive with
the Business, or (iii) induce or attempt to induce any
customers, suppliers or distributors of the Division to
terminate their relationships with the Business; pro-
vided, however, that the Seller's compliance with Section
4.10 shall not be deemed a breach of this Section 4.13.
(b) The Seller agrees that for a period of two
years following the Closing Date, it will, and it will
cause its officers, directors and employees to, keep se-
cret and retain in confidence, and not at any time or for
any reason, directly or indirectly (including but not
limited to, acting by, through or with any subsidiary,
affiliate, or any other person, firm, corporation, joint
venture or agent), use, publish or disclose, any non-pub-
lic and confidential information Related to the Business,
except as required by law or the rules of an applicable
stock exchange, and further, that the Seller will not use
or exploit the same for its own benefit or with or for
the benefit of others. Notwithstanding the foregoing
provisions of this Section 4.13(b), the Seller agrees
that at all times following the Closing Date, it will,
and it will cause its officers, directors and employees
to, keep secret and retain in confidence, and not at any
time or for any reason, directly or indirectly (including
but not limited to, acting by, through or with any sub-
sidiary, affiliate, or any other person, firm, corpora-
tion, joint venture or agent), use, publish or disclose,
any non-public and confidential information with respect
to Intellectual Property except as required by law or the
rules of an applicable stock exchange. For the purposes
of this Agreement, non-public and confidential informa-
tion shall include, without limitation, customer lists,
marketing plans and strategies, market studies and data,
pricing policies and lists, manufacturing methods, speci-
fications, processes and procedures, sources of supply,
designs, the terms of contracts or agreements, know-how,
trade secrets or any other information or data which is
not public and of a confidential nature, Related to the
Business.
(c) The Seller agrees that it will not, for a
period of two years following the Closing Date, directly
solicit the employment of any person who is at the time
employed by the Business without the Purchaser's prior
written consent.
4.14 Title Commitment and Survey. The Pur-
chaser has ordered (at the cost and expense of the Pur-
chaser) title commitments (as amended from time to time,
the "Title Commitments") for each Owned Real Property
located in the United States issued by Chicago Title
Insurance Company (the "Title Company"). The Purchaser
and the Seller shall mutually cooperate to obtain (at the
sole cost and expense of the Purchaser) (i) updates of
each Title Commitment from time to time prior to the
Closing Date, and (ii) a survey or an updated survey de-
picting each Owned Real Property located in the United
States, with an ALTA/ASCM certification or its equivalent
to Purchaser and the Title Company and otherwise in form
reasonably satisfactory to the Purchaser and its counsel
and the Title Company, prepared by a surveyor reasonably
acceptable to the Purchaser licensed to practice in the
state where such property is located (the "Survey"). If
a Title Commitment or update shall reveal one or more
defects to title not included as Permitted Encumbrances
(the "Unpermitted Encumbrances"), Purchaser shall prompt-
ly notify Seller of such Unpermitted Encumbrances and
Seller shall (a) cure such Unpermitted Encumbrances which
can be cured with the payment of money only ("Monetary
Defects"); provided that the Seller shall not be obligat-
ed to spend in excess of $5,000,000 in the aggregate (the
"Monetary Defects Cure Cap") to cure such Monetary De-
fects, except that the foregoing dollar limit shall not
apply to Monetary Defects which were voluntarily placed
upon the Owned Real Property by the Seller; and (b) shall
use reasonable efforts to cure the Unpermitted Encum-
brances which cannot be cured with the payment of money
only ("Non-Monetary Defects") prior to Closing. If,
prior to the Closing, Seller is unable to cure the Non-
Monetary Defects or is unable or unwilling to cure such
Monetary Defects in excess of the Monetary Defects Cure
Cap (the "Extraordinary Monetary Defects"), Purchaser
shall have the option to either (i) consummate the trans-
action contemplated by this Agreement, except that Pur-
chaser shall not be obligated to acquire the particular
Owned Real Property affected by the Non-Monetary Defects
and there shall be an adjustment to the Purchase Price
equal to the value of that particular Owned Real Property
as allocated by the parties, or (ii) consummate the
transaction contemplated by this Agreement, including,
without limitation, the acquisition of the particular
Owned Real Property affected by the Non-Monetary Defects
and/or the Extraordinary Monetary Defects with no adjust-
ment to the Purchase Price, and such Non-Monetary Defects
and/or such Extraordinary Monetary Defects shall be
deemed to be Permitted Encumbrances.
4.15 Releases of Guarantees. The Purchaser
agrees that it will either (i) cause the Seller to be re-
leased as of the Closing Date from the guarantees listed
on Schedule 4.15 hereto or (ii) indemnify the Seller with
respect to any such guarantee from which the Seller is
not released as of the Closing Date.
4.16 Further Assurances. At any time or from
time to time after the Closing, either party shall, at
the request of the other party, execute and deliver any
further instruments and documents and take such further
action as such party may reasonably request, in order to
consummate and make effective the transactions contem-
plated by this Agreement.
4.17 Environmental Work. Notwithstanding
Section 6.4, Seller agrees that it will commence promptly
after execution of this Agreement, and diligently pursue
beyond the Closing Date, if necessary, at its own ex-
pense, the environmental work with respect to the Real
Property listed on Schedule 4.17 unless Seller determines
on or prior to the Closing Date in its sole discretion
that the cost of the remediation required as a result of
the results of the samplings and soil borings referred to
on the Schedule is material, in which case its sole
option shall be to terminate this Agreement.
ARTICLE V
Conditions to Closing
5.1 Conditions to Each Party's Obligation to
Close. The respective obligations of the Seller and the
Purchaser to consummate the Purchase shall be subject to
the satisfaction, at or prior to Closing, of each of the
following conditions:
(a) The applicable waiting periods under the
HSR Act and the GWB Act shall have expired, all authori-
zations, approvals, consents and waivers required to be
obtained from, and notices and filings required to be
given to or made with, any government or governmental
agency in connection with the Purchase shall have been
obtained, given or made, the Committee on Foreign Invest-
ment in the United States ("CFIUS") shall have determined
not to investigate the transactions contemplated hereby
under the Exon-Florio Amendment or it otherwise shall
have provided assurances sufficient to satisfy the Pur-
chaser, in its reasonable judgment, that the transactions
contemplated hereby will not be so investigated under the
Exon-Florio Amendment and the GWB Act.
(b) All third party authorizations, approvals,
consents, waivers and notices required in connection with
the Purchase shall have been obtained, given or made
except for such authorizations, approvals, consents,
waivers and notices which, in the aggregate, will not
have any significant adverse affect on the Business.
(c) No court or other governmental body or
public authority of competent jurisdiction shall have
issued an order which shall then be effective restraining
or prohibiting the consummation of the Purchase.
(d) No action, suit, proceeding or investiga-
tion by or before any court, administrative agency or
other governmental authority shall have been instituted
(i) to restrain, prohibit or invalidate the transactions
contemplated hereby, (ii) which seeks material or sub-
stantial damages by reason of completion of such transac-
tion, or (iii) which will materially affect the right of
the Purchaser to own, operate or control, after the
Closing Date, the Business or any of the Purchased As-
sets.
(e) Affiliates of each of the Seller and the
Purchaser shall have executed and delivered agreements
containing mutually satisfactory terms and conditions
(not inconsistent with the terms hereof) with respect to
the sale of the capital stock of each of the Stock Sub-
sidiaries, the sale of the Purchased Assets owned or held
by the Asset Subsidiaries and the sale of the Joint Ven-
tures to the appropriate affiliates of the Purchaser
(including the payment of the portion of the Purchase
Price allocable to the capital stock of the Stock Subsid-
iaries, Purchased Assets or Joint Venture by such Affil-
iate of the Purchaser). Without limiting the foregoing,
the agreement governing the sale of the capital stock of
Metco GmbH, (the "Metco GmbH Purchase Agreement") shall
be independent of and separate from this Agreement; and
the purchase price for the capital stock of Metco GmbH
shall be separately stated in the Metco GmbH Agreement
(the "Metco GmbH Purchase Price"); provided, however, the
Purchase Price for the Purchased Assets provided for in
this Agreement shall include the Metco GmbH Purchase
Price and payment of the Purchase Price hereunder shall
constitute payment of the Metco GmbH Purchase Price.
5.2 Conditions to Obligation of the Purchaser
to Close. The obligation of the Purchaser to consummate
the Purchase shall be subject to the satisfaction, at or
prior to Closing, of each of the following conditions:
(a) The representations and warranties of the
Seller contained in this Agreement shall be true and cor-
rect in all material respects on and as of the Closing
Date as though restated and made at the Closing, except
for changes specifically contemplated by this Agreement,
and the Seller shall have delivered to the Purchaser a
certificate to the foregoing effect, signed on behalf of
the Seller by a duly authorized officer of the Seller and
dated as of the Closing Date.
(b) The Seller shall have duly performed or
complied in all material respects with all of the obliga-
tions to be performed or complied with by it under the
terms of this Agreement on or prior to the Closing Date,
and the Seller shall have delivered to the Purchaser a
certificate to the foregoing effect, signed on behalf of
the Seller by a duly authorized officer of the Seller and
dated as of the Closing Date.
(c) The Purchaser shall have obtained the ALTA
Owner's Policies of Title Insurance (1990) contemplated
by Section 4.14 insuring title to the Owned Real Property
without exceptions other than Permitted Encumbrances.
5.3 Conditions to Obligation of the Seller to
Close. The obligation of the Seller to consummate the
Purchase shall be subject to the satisfaction, at or
prior to Closing, of each of the following conditions:
(a) The representations and warranties of the
Purchaser contained in this Agreement shall be true and
correct in all material respects on and as of the Closing
Date as though restated and made at the Closing, except
for changes specifically contemplated by this Agreement,
and the Purchaser shall have delivered to the Seller a
certificate to the foregoing effect, signed on behalf of
the Purchaser by a duly authorized officer of the Pur-
chaser and dated as of the Closing Date.
(b) The Purchaser shall have duly performed or
complied in all material respects with all of the obliga-
tions to be performed or complied with by it under the
terms of this Agreement on or prior to the Closing Date,
and the Purchaser shall have delivered to the Seller a
certificate to the foregoing effect, signed on behalf of
the Purchaser by a duly authorized officer of the Pur-
chaser and dated as of the Closing Date.
(c) The Seller shall have conducted the sam-
pling and soil borings required pursuant to Schedule 4.17
hereof, and shall have determined, in its sole discre-
tion, that based on the nature and extent of contamina-
tion detected, the cost of such remediation is not mate-
rial.
ARTICLE VI
Indemnity
6.1 Survival of Representations. Each repre-
sentation and warranty of the Purchaser and the Seller
made pursuant to this Agreement shall survive for a
period of eighteen months following the Closing Date re-
gardless of any investigation made at any time by or on
behalf of either party, and thereafter neither party may
make any claim for any breach of such representations and
warranties. Notwithstanding the foregoing, the represen-
tations and warranties set forth in Sections 3.1(a),
3.1(b), 3.1(q), 3.2(a) and 3.2(b) shall survive in perpe-
tuity and the representations and warranties set forth in
Section 3.1(y) shall survive until the expiration of the
statute of limitations with respect to the matters set
forth therein. All statements contained in this Agree-
ment or in any schedule, certificate, list or other
writing or document delivered or provided pursuant to
this Agreement shall constitute representations and
warranties as such term is used in this Agreement. For
purposes of indemnification claims pursuant to this
Article VI, every representation and warranty made by
either party shall be subject to every schedule, qualifi-
cation and disclosure, and every amendment and supplement
thereof, made with respect to such representation and
warranty at any time on or prior to the Closing Date.
6.2 Indemnity by the Seller. Upon the terms
and subject to the conditions of this Article VI, the
Seller shall indemnify, defend and hold harmless the Pur-
chaser and its affiliates and their respective directors,
officers and employees (collectively, the "Indemnified
Purchaser Group") from and against all demands, claims,
actions or causes of action, assessments, losses, damag-
es, liabilities, amounts paid in settlement, costs and
expenses, including, without limitation, interest, penal-
ties and attorneys', consultants and expert witness fees,
disbursements and expenses (collectively, "Losses"),
asserted against, resulting to, or imposed upon or in-
curred by any member of the Indemnified Purchaser Group
directly or indirectly by reason of or resulting from:
(i) the untruth, inaccuracy, breach or nonful-
fillment of any representation or warranty of the Seller
contained in this Agreement;
(ii) the breach or nonperformance by the Sell-
er of any covenant, commitment, undertaking or agreement
contained in this Agreement or in any agreement or in-
strument delivered pursuant to this Agreement;
(iii) any Excluded Liability; provided that
with respect to any Losses relating to any individual
liability a portion of which is an Excluded Liability and
the balance of which is an Assumed Liability (because the
underlying liability is a Product Liability), the Seller
shall be responsible for only that percentage of all
Losses relating to such liability equal to the ratio of
the amount of the Excluded Liability to the sum of the
amounts of the Excluded Liability and the Assumed Liabil-
ity, and the Purchaser shall be responsible for the
balance of such Losses; and
(iv) any Unknown Liability; provided that the
Seller shall be responsible for only
[material at this point has been
omitted pursuant to a request for confidential treatment under
the Freedom of Information Act and has been filed separately with
the Securities and Exchange Commission]
of the total
amount of all Losses relating to any individual Unknown
Liability and the Purchaser shall be responsible for the
remaining
[material at this point has been
omitted pursuant to a request for confidential treatment under
the Freedom of Information Act and has been filed separately with
the Securities and Exchange Commission]
of such Losses and provided, further that
the indemnity set forth in this clause (iv) shall termi-
nate on the sixth anniversary of the Closing Date.
6.3 Indemnity by the Purchaser. Upon the
terms and subject to the conditions of this Article VI,
the Purchaser shall indemnify, defend and hold harmless
the Seller and its affiliates and their respective direc-
tors, officers and employees (collectively, the "Indemni-
fied Seller Group") from and against all Losses asserted
against, resulting to, or imposed upon or incurred by any
member of the Indemnified Seller Group directly or indi-
rectly by reason of or resulting from:
(i) the untruth, inaccuracy, breach or nonful-
fillment of any representation or warranty of the Pur-
chaser contained in this Agreement;
(ii) the breach or nonperformance by the Pur-
chaser of any covenant, commitment, undertaking or agree-
ment contained in this Agreement or in any agreement or
instrument delivered pursuant to this Agreement;
(iii) any Assumed Liability; provided that:
(i) until the sixth anniversary of the Closing Date, the
Purchaser shall be responsible for only
[material at this point has been
omitted pursuant to a request for confidential treatment under
the Freedom of Information Act and has been filed separately with
the Securities and Exchange Commission]
of the total amount of all Losses related to any individual Unknown
Liability, and the Seller shall be responsible for the remaining
[material at this point has been
omitted pursuant to a request for confidential treatment under
the Freedom of Information Act and has been filed separately with
the Securities and Exchange Commission]
of such Losses; thereafter, the Purchaser
shall be responsible for 100% of such Losses; and (ii)
with respect to any Losses relating to any individual
liability a portion of which is an Assumed Liability and
the balance of which is an Excluded Liability (because
the underlying liability is a Product Liability), the
Purchaser shall be responsible for only that percentage
of all Losses relating to such liability equal to the
ratio of the amount of the Assumed Liability to the sum
of the amounts of the Assumed Liability and the Excluded
Liability, and the Seller shall be responsible for the
balance of such Losses;
(iv) any liability arising out of the opera-
tion of the Business by the Purchaser after the Closing
or the use of the Purchased Assets by the Purchaser after
the Closing, provided that the indemnity set forth in
this clause (iv) shall not apply to Excluded Liabilities,
Environmental Liabilities, Product Liabilities or Unknown
Liabilities; and
(v) any liability arising with respect to the
Purchaser's use of the "Perkin-Elmer" name pursuant to
Section 4.9 hereof.
6.4 Environmental Indemnification. In addi-
tion to the parties' other obligations under this Article
VI and subject to the provisions set forth below, the
Seller and Purchaser agree to indemnify, defend and hold
harmless each other from and against all Losses which may
at any time during a period of fifteen years after the
Closing Date be imposed upon, incurred by, or asserted or
awarded against, the other based upon, arising out of or
otherwise in respect of any Excluded Environmental Lia-
bilities (in the case of the Seller as indemnitor) and
any Assumed Environmental Liabilities (in the case of the
Purchaser as indemnitor). For purposes of Section 6.4,
Losses shall include, without limitation, the costs of
any Remedial Action but shall exclude any costs incurred
by Seller pursuant to the provisions of Section 4.17.
The parties' obligations under this Section 6.4 shall
expire on the fifteenth anniversary of the Closing Date
and thereafter, all such Losses as described in this
Section 6.4 shall be the sole obligation of the Purchas-
er. In the event of a conflict between this Section 6.4
and any of the other Sections of Article VI, this Section
6.4 shall control.
6.5 Procedures Relating to Environmental
Indemnification. In addition to the parties' other
obligations under this Article VI, the following provi-
sions shall apply and in the event of a conflict or
ambiguity between this Section 6.5 and other Sections of
Article VI, this Section 6.5 shall control.
(a) The Seller and Purchaser agree, so long as
they each comply with their obligations to indemnify
pursuant to Section 6.4, to reasonably cooperate with
each other in managing and controlling all actions, in-
cluding, without limitation, the defense of Environmental
Claims and the conduct of Remedial Actions, undertaken in
connection with their obligations to indemnify pursuant
to Section 6.4. In the event of an asserted Environmen-
tal Claim, Seller and Purchaser shall provide their own
defense each at their own cost and expense unless other-
wise agreed by the parties.
(b) With respect to each condition requiring
Remedial Action pursuant to Section 6.4, the Purchaser
and Seller shall cooperate to undertake such Remedial
Action as is reasonably necessary to achieve compliance
with applicable Environmental Laws in effect on the
Closing Date, including but not limited to, retaining an
environmental professional that is acceptable to both
Purchaser and Seller. Purchaser and Seller's obligations
under this Section 6.5 shall expire upon the receipt of
either (i) a written statement by a governmental body
with jurisdiction over the condition to the effect that
compliance with such applicable Environmental Laws has
been achieved or no further action is required under such
applicable Environmental Laws or (ii) a written statement
of an environmental professional mutually acceptable to
the Purchaser and the Seller to the same effect. In the
event applicable Environmental Laws are amended or re-
vised after the Closing Date, the Seller's obligations
hereunder shall be limited to performance of Remedial
Action only to the extent necessary to comply with appli-
cable Environmental laws as in effect on the Closing Date
and, in such case, the Seller shall deliver to the Pur-
chaser a written opinion, addressed to the Purchaser, of
an environmental professional that such compliance has
been achieved or that no further action is required to
comply with applicable Environmental Laws as in effect on
the Closing Date.
(c) To the extent that the Purchaser or any
affiliate is the occupant of the Real Property, the Pur-
chaser will cooperate and will cause such affiliate to
cooperate and, during normal business hours or at such
other times as may be reasonably acceptable to the Pur-
chaser, permit access to any entry upon the Real Property
by the Seller as reasonably necessary to conduct any
action in satisfaction of the Seller's obligations to
indemnify pursuant to Section 6.5.
(d) The Purchaser and Seller shall promptly
provide to each other copies of all scopes of work, final
reports, correspondence with any governmental body and
sampling data related to, or which result from, any
Remedial Action at the Real Property and the Seller and
Purchaser, as the case may be, shall each be given a
reasonable opportunity to provide to the other written
comments to such documents.
(e) As between the Purchaser and the Seller,
the party providing indemnification pursuant to this
Section 6.4 shall have no obligation to do so to the
extent a written notice of claim has not been received on
or before the fifteenth anniversary of the Closing Date.
6.6 Indemnification Procedure. The obliga-
tions and liabilities of the Seller and the Purchaser, as
the case may be, pursuant to Sections 6.2, 6.3, 6.4 and
6.5, respectively (the indemnifying party being herein
referred to as the "Indemnifying Party" and the indemni-
fied group being referred to as the "Indemnified Group"),
with respect to claims by third parties resulting in
Losses that are subject to the indemnities in Sections
6.2, 6.3, 6.4, and 6.5 (individually, a "Third Party
Claim" and collectively, "Third Party Claims") shall be
subject to the following terms and procedures:
(i) The member of the Indemnified Group to whom
such Third Party Claim relates will give the Indemnifying
Party prompt notice of such Third Party Claim, and the
Indemnifying Party will assume the defense thereof by
representatives chosen by it; provided that the Indemni-
fied Group or the member thereof against which such Third
Party Claim has been asserted shall be entitled to par-
ticipate in the defense of such Third Party Claim and to
employ counsel at its own expense to assist in the han-
dling of such Third Party Claim.
(ii) If the Indemnifying Party, within a rea-
sonable time after notice of any such Third Party Claim,
fails or elects not to assume the defense thereof, the
Indemnified Group or the member thereof against which
such Third Party Claim has been asserted shall have the
right to undertake the defense, compromise or settlement
of such Third Party Claim on behalf of and for the ac-
count and at the risk of the Indemnifying Party, subject
to the right of the Indemnifying Party to assume the
defense of such Third Party Claim at any time prior to
the settlement, compromise or final determination there-
of. Neither the Indemnifying Party nor the Indemnified
Group shall settle or compromise any Third Party Claim
without the prior consent of the other (which consent
will not be unreasonably withheld).
(iii) For all purposes of this Section 6.6, in
the case of any Third Party Claim asserting or alleging
an Unknown Liability or a Product Liability (other than a
Known Product Liability), the Purchaser shall be deemed
the Indemnifying Party and the Seller group shall be
deemed the Indemnified Group, whether such Third Party
Claim is asserted against the Purchaser or the Seller but
subject, however to the rights of any insurance carrier
under the Seller's insurance policies. In such cases the
party against whom the Third Party Claim is asserted
shall notify the other, and the Purchaser shall assume
the defense thereof by representatives chosen by it. All
Losses resulting from any such Third Party Claim shall be
borne equally by the Purchaser and the Seller in the same
proportion as their respective responsibilities for the
liability giving rise to the Third Party Claim bear to
one another notwithstanding whichever of them assumes the
defense thereof. The party which assumes the defense of
any such Third Party Claim shall be entitled to be reim-
bursed on a regular, periodic basis by the other party
for the applicable percentage of the Losses incurred in
connection with the defense of such Third Party Claim, as
such Losses are incurred.
6.7 Limitations on Indemnification. Neither
party hereto shall have any liability to the other in
respect of any claim for indemnification of Losses pursu-
ant to this Article VI for the breach of any representa-
tion or warranty contained herein until (and then only to
the extent that) the Losses incurred by such Indemnified
Group as a result of all such breaches of representations
and warranties exceed an aggregate total of
[material at this point has been
omitted pursuant to a request for confidential treatment under
the Freedom of Information Act and has been filed separately with
the Securities and Exchange Commission]
and shall have no further obligation in respect of such
Losses at such time as it shall have made aggregate
payments equal to the amount of
[material at this point has been
omitted pursuant to a request for confidential treatment under
the Freedom of Information Act and has been filed separately with
the Securities and Exchange Commission] million.
6.8 Indemnity Not Exclusive Remedy. Nothing
contained in this Agreement shall prevent any party
hereto from seeking and obtaining specific performance by
the other party hereto of any of its obligations under
this Agreement or from seeking and obtaining injunctive
or other equitable relief against the other party's
activities in breach of this Agreement or any other forms
of relief or other remedies which may be available to it,
either at law or in equity; provided, however, in the
absence of actual or constructive fraud the exclusive
remedy for breaches of representations and warranties set
forth in this Agreement is indemnification provided for
in Article VI.
ARTICLE VII
Termination
7.1 Termination. Notwithstanding anything in
this Agreement to the contrary, this Agreement may be
terminated only (a) by the mutual written consent of the
parties to this Agreement, (b) by the Purchaser or the
Seller if, for any reason (other than breach of this
Agreement by the terminating party), the Closing has not
occurred (or cannot occur) on or prior to August 31,
1994, (c) by the Seller pursuant to Section 4.17 hereof,
or (d) by either party, on written notice to the other
party, upon material breach of any covenant, representa-
tion or warranty contained in this Agreement by the non-
terminating party which has rendered the satisfaction of
any condition to the obligations of the breaching party
impossible and such violation or breach has not been
waived by the terminating party; provided that the non-
terminating party is first given notice of such breach
and fails to remedy, or commit to remedying, such breach
within ten (10) days after receipt of such notice.
7.2 Effect of Termination. If this Agreement
is terminated pursuant to Section 7.1, this Agreement,
other than with respect to the Purchaser's obligations
under Section 4.4 and the Purchaser's and the Seller's
obligations under Sections 4.8 and 8.1 hereof, shall
thereafter have no effect, except that termination of
this Agreement will not relieve either party of any
liability for breach of any agreements hereunder occur-
ring prior to such termination, provided that no supple-
ment or amendment to any of the Schedules delivered by
the Seller pursuant to Section 4.12 shall furnish a basis
for liability of the Seller in the event that this Agree-
ment is terminated.
ARTICLE VIII
Miscellaneous
8.1 Expenses. Except as otherwise specifical-
ly provided herein, each party hereto shall bear its own
expenses incurred in connection with the preparation and
execution of this Agreement and the consummation of the
Purchase.
8.2 Public Communications. Except as may be
required by applicable law or the rules of any applicable
stock exchange, neither the Seller nor the Purchaser nor
any of their respective affiliates shall issue any press
release or other public communications relating to this
Agreement or the Purchase without the prior written con-
sent of the other party hereto. In the event that any
such press release or other public communication shall be
required, the party required to issue such release or
communication shall consult in good faith with the other
party hereto with respect to the form and substance of
such release or communication prior to the public dissem-
ination thereof.
8.3 Notices. All notices, requests, demands
and other communications required or permitted hereunder
shall be in writing and shall be delivered personally or
sent by telecopier or by a nationally recognized over-
night courier, postage prepaid, and shall be deemed to
have been duly given when so delivered personally or sent
by telecopier, with receipt confirmed, or one (1) busi-
ness day after the date of deposit with such nationally
recognized overnight courier. All such notices, requests,
demands and other communications shall be addressed to
the respective parties at the addresses set forth below,
or to such other address or person as any party may
designate by notice to the other party in accordance
herewith:
If to the Seller: The Perkin-Elmer Corporation
761 Main Avenue
Norwalk, CT 06859-0313
Attn.: Corporate Secretary
Telecopier No.: (203) 761-5000
If to the Purchaser: Sulzer Inc.
200 Park Avenue
New York, NY 10166-0068
Attn: Chief Financial
Officer
Telecopier No.: (212) 370-1138
8.4 Amendments; Waivers. This Agreement may
not be changed orally and no waiver of compliance with any
provision or condition hereof and no consent provided for
herein shall be effective unless evidenced by an instru-
ment in writing duly executed by the proper party. Either
party may at any time waive compliance by the other party
with any covenant or condition contained in this Agreement
only by written instrument executed by the party waiving
such compliance. No such waiver, however, shall be deemed
to constitute the waiver of any such covenant or condition
in any other circumstance or the waiver of any other
covenant or condition.
8.5 Section Headings. The section and para-
graph headings contained in this Agreement are for refer-
ence purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
8.6 Counterparts. This Agreement may be exe-
cuted in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall
constitute one and the same instrument.
8.7 Assignment. Except as provided in the
following sentence, this Agreement may not be assigned
prior to the Closing, by operation of law or otherwise,
and any attempt to do so shall be void. The Purchaser may
assign its rights under this Agreement in whole or in part
to an affiliate or a wholly-owned subsidiary of the Pur-
chaser; provided, however, that in such event, the Pur-
chaser shall remain fully liable for the fulfillment of
all of its obligations hereunder. This Agreement shall be
binding upon and inure to the benefit of successors and
assigns of the parties hereto. No assignment by any party
of any obligations under this Agreement shall release the
assignor from such obligations without the written consent
of the other party hereto.
8.8 Bulk Sales. The parties hereto agree to
waive compliance with any bulk sales laws adopted by each
of the jurisdictions in which Purchased Assets are located
to the extent, if any, that such laws are applicable to
the Purchase. The Seller shall indemnify and hold harm-
less the Purchaser against any and all liabilities which
may be asserted by third parties against the Purchaser as
a result of noncompliance with any such bulk sales laws.
8.9 Governing Law. This Agreement shall be
governed by, and construed and enforced in accordance
with, the internal laws of the State of New York.
8.10 Jurisdiction. The Purchaser and the
Seller hereby agree that any legal action or proceeding by
either of them against the other arising out of or based
upon this Agreement, the agreements, instruments and other
documents delivered in connection herewith, or the trans-
actions contemplated hereby or thereby, shall be brought
in the courts of the State of New York or the United
States of America sitting in the State of New York, and,
by execution and delivery of this Agreement, the Purchaser
and the Seller accept and consent, generally and uncondi-
tionally, to the jurisdiction of such courts and agree
that such jurisdiction shall be exclusive, unless waived
by both the Purchaser and the Seller in writing. The
Purchaser and the Seller irrevocably consent to the ser-
vice of process in any action or proceeding in such courts
by any means legally permissible, including, without
limitation, by the mailing of such process, postage pre-
paid, to either of them at the addresses set forth in this
Agreement, such service by mail to become effective upon
the earlier of (a) receipt of said mailing or (b) any
earlier date permitted by applicable law. The Purchaser
and the Seller hereby waive any right to stay or to dis-
miss any action or proceeding brought before said courts
on the basis of forum non conveniens.
8.11 Miscellaneous. This Agreement (a) con-
stitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral,
among the parties with respect to the subject matter
hereof; provided, however, that the Confidentiality Agree-
ment shall remain in full force and effect except as
provided in Section 4.8 hereof; and (b) is not intended to
confer upon any other persons any rights or remedies
hereunder, and (c) is intended solely and exclusively for
the benefit of the Seller and the Purchaser, and their
permitted successors and assigns, respectively, and not
for the benefit of any third party. In case any provision
in this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be af-
fected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed as of the date
first written above.
THE PERKIN-ELMER CORPORATION
By /s/ Riccardo Pigliucci
Name: Riccardo Pigliucci
Title: President & C.O.O.
SULZER INC.
By /s/ Philip T. Hauser
Name: Philip T. Hauser
Title: Executive Vice President
By /s/ Urs Scherrer
Name: Urs Scherrer
Attorney-in-Fact
EXHIBIT INDEX
1.2(A) Inventory Valuation Provisions
1.2(B) Excluded Assets
1.2(C) Financial Statement
1.2(E) Real Property
1.2(F) Intellectual Property Rights
1.2(G) Subsidiaries
1.2(H) Assumed Contracts
3.1(c) Assets
3.1(d) Real Property
3.1(f) Financial Statement
3.1(g) Certain Changes
3.1(h) Litigation
3.1(i) Compliance with Laws
3.1(j) Approvals and Consents
3.1(k) Intellectual Property Exceptions
3.1(l) Material Agreements
3.1(m) Employee Benefit Plans
3.1(n) Labor Matters
3.1(o) Insurance
3.1(p) Environmental Matters
3.1(v) Bank Accounts
3.1(x) Licenses and Permits
3.1(y) Taxes
4.1 Capital Commitments
4.7(a)(1) Transferred Employees
4.7(a)(2) Sulzer Benefit Plans
4.15 Guarantees
4.17 Environmental Work
<PAGE>
SULZER INC.
200 PARK AVENUE
NEW YORK, NY 10166-0068
Tel. (212) 949-0999
Fax: (212) 370-1138
August 31, 1994
Mr. Gaynor Kelley
Chairman and CEO
The Perkin-Elmer Corporation
Norwalk, Connecticut
Dear Mr. Kelley,
This will confirm our understanding with respect to the
closing of the sale of the Metco Division of The Perkin-
Elmer Corporation ("Perkin-Elmer") to Sulzer Inc.
("Sulzer").
Perkin-Elmer will reduce the purchase price payable by
Sulzer for the Metco Division to the net book value of the
assets of the Division at closing, plus $2.6 million. The
net book value of the assets will continue to be determined
in accordance with the terms set forth in the Purchase
Agreement dated as of April 18, 1994, as the same may be
amended (the "Purchase Agreement"). In addition, Perkin-
Elmer will indemnify Sulzer for certain losses incurred by
Sulzer as a result of compliance with the proposed consent
order of the Federal Trade Commission (the "FTC") in its
present form (the "Consent Order"), as provided hereunder.
Perkin-Elmer will also use its best efforts to close the
sale at the earliest possible date.
On the seventh anniversary of the closing of this
transaction Sulzer, at its option, may request to meet with
Perkin-Elmer to review with Perkin-Elmer Sulzer's
calculation of legitimate damages it believes it incurred
solely as a result of the entry in the market of the new
supplier contemplated by the FTC Consent Order. Perkin-
Elmer will meet with Sulzer at that time, review the data
provided and reimburse Sulzer for legitimate damages that
Sulzer demonstrates were incurred by it solely as a result
of the entry in the market of the new supplier contemplated
by the FTC Consent Order; however, in no event shall the
reimbursement to Sulzer for damages in this connection
exceed $5 mio.
In consideration of this agreement by Perkin-Elmer,
Sulzer will:
1. Immediately sign and deliver to the FTC the Consent
Order, together with the proposed affidavit of Sumitomo
Chemical Company Limited in its present form. Subject to
the foregoing, Sulzer will also use its best efforts to take
all steps necessary with respect to the FTC to ensure prompt
and satisfactory closing of the transaction and to comply
with the terms of the Consent Order.
2. Use its best efforts to close the sale at the
earliest possible date, including using its best efforts to
resolve any outstanding issues (including employee issues)
related to the purchase and sale of assets or stock outside
of the United States.
3. Waive any and all conditions to closing based upon:
(a) any changes to the Schedules to the Purchase Agreement
from the date of the Purchase Agreement to the date of
closing which are not, in the aggregate, material to the
financial condition of the Metco Division; (b) the failure
to receive any required governmental or other approvals,
other than the final approval of the German Cartel Office
under German antitrust law and the FTC; or (c) any alleged
deterioration of the Metco business generally.
4. Make no further claims (a) from and after the date
of the Final Statement contemplated by the Purchase
Agreement and determined in accordance with Section 2.4(b)
thereof, based on accounting methods and financial issues
related to any item or matter included or reflected on or
the subject of the Final Statement, and (b) at any time
either before or after the closing, based on or related to
any alleged deterioration of the business of Metco, or
losses or reduced profits allegedly based upon the signing
or enforcement of the Consent Order (other than pursuant to
the indemnification referred to above).
In furtherance of the foregoing, Perkin-Elmer and
Sulzer agree that the representations and warranties of
Perkin-Elmer set forth in Section 3.1(g)(i) shall not
survive the closing and the representations and warranties
of Perkin-Elmer set forth in Sections 3.1(t) and 3.1(u)
shall survive only until the determination of the Final
Statement in accordance with Section 2.4(b) of the Purchase
Agreement. All other representations and warranties shall
survive for the applicable period set forth in Section 6.1
of the Purchase Agreement.
The "drop dead" date set forth in Section 7.1(b) of the
Purchase Agreement is hereby extended from August 31, 1994
to September 30, 1994.
This letter shall have no further effect and neither
Perkin-Elmer nor Sulzer shall have any further obligations
hereunder if the FTC shall fail to accept the Consent Order
and affidavit contemplated by paragraph 1 of this letter.
If you are willing to proceed on the basis set forth
above, please sign and return one copy of this letter to us.
Very truly yours,
Sulzer Inc.
By: /s/ Fritz Fahrni /s/ Roman Beran
Fritz Fahrni Roman Beran
Accepted and Agreed to this 31st day of August, 1994
The Perkin-Elmer Corporation
By: /s/ Gaynor N. Kelley