Supply and Equipment Purchase Agreement - Ensinger Vekton Inc., Putnam Precision Molding Inc., Polychem Corp. and Ecesis LLC
SUPPLY AND EQUIPMENT PURCHASE
AGREEMENT
This Supply and Equipment Purchase Agreement (this "Agreement") is made
and entered into as of March __, 2002 (the "Effective Date") among ENSINGER
VEKTON, INC., a New Jersey corporation ("Vekton"), PUTNAM PRECISION MOLDING,
INC., a Connecticut corporation ("PPM" and, together with Vekton, "Supplier"),
POLYCHEM CORPORATION, a Pennsylvania corporation ("Polychem"), and ECESIS, LLC,
a Delaware limited liability company ("ECESIS" and, together with Polychem,
"Purchaser").
PREAMBLE
Polychem, as part of its business, engages in the manufacturing of
molded plastic products, including wastewater treatment and cast nylon buckets
(the "Polychem Products"). Polychem's business of manufacturing Polychem
Products is referred to hereinafter as the "Business".
Purchaser desires to purchase from Supplier, during the term of this
Agreement, all of its requirements of the products listed on Exhibit A (as such
schedule may be amended from time to time in accordance with the terms hereof or
by mutual agreement of the parties, the "Products"), and Supplier desires to
supply, sell and provide the Products to Purchaser, all upon the terms and
conditions of this Agreement;
In addition, in order to enable Supplier to produce sufficient
quantities of Products to meet its obligations hereunder, Polychem desires to
sell to Supplier, and Supplier desires to purchase from Polychem, certain of
Polychem's assets as identified in Section 12 hereof, all upon the terms and
subject to the conditions set forth herein.
Therefore, the parties agree as follows with the intent to be legally
bound.
AGREEMENT
1. Purchase and Sale of Products.
1.1 General. During the Term (as defined in Section 7.1 below),
Purchaser will place orders for and will purchase from Supplier all of its
requirements and all requirements of the Affiliates (as defined below) of
Polychem and ECESIS for Products, which purchases shall not total less than
$2,500,000 during any Contract Year (as defined below) during the Initial Term
(as defined in Section 7.1 below) (the "Purchase Commitment"). The Purchase
Commitment will be on a take-or-pay basis. If, during any Contract Year, the
Purchaser fails to meet the Purchase Commitment for such year, Purchaser shall
pay the Supplier, within 15 days after the end of such Contract Year, an amount
(the "Penalty Amount") equal to the difference between (a) the full Purchase
Commitment ($2,500,000) less the Direct Cost (as defined below) that Supplier in
good faith determines it would have incurred in order to produce $2,500,000 of
Products during such Contract Year (assuming that Purchaser had purchased the
full Purchase Commitment by ordering the respective Products in the same
proportion as the Products that Purchaser actually ordered during such Contract
Year), and (b) the amount of Products actually purchased by Purchaser during
such Contract Year less Supplier's actual Direct Cost for such purchased
Products; provided, however, that the Penalty Amount for any Contract Year shall
not be less than 15% of the difference between (x) the full Purchase Commitment
($2,500,000) and (y) the actual purchases made by Purchaser during such Contract
Year. For purposes of calculating the amount of Products actually Purchased by
Purchaser during any given Contract Year (other than the first Contract Year),
Purchaser shall be entitled to include any purchases of Products actually made
during the previous Contract Year to the extent that such purchases exceeded the
Purchase Commitment during such Contract Year.
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For purposes of this Agreement, (i) "Direct Cost" means the standard
cost for each Product, comprised of the sum of material, direct labor and
overhead costs; (ii) "Contract Year" shall mean the twelve-month (12) period
commencing on March 1 of a calendar year (or, in the case of the initial
Contract Year, the Effective Date) and ending on the last day of February of the
following calendar year; and (iii) "Affiliate" of Purchaser shall mean Polychem,
ECESIS, Conmat Technologies, Inc. d/b/a Conmatech.com, the parent of Polychem
("Parent"), and any other person or entity controlling, controlled by or under
common control with Polychem or ECESIS.
1.2 Delivery Term. Except as may be otherwise agreed between the
parties, all Products are sold to Purchaser FCA (INCOTERMS 2000) ("FCA") the
facility of Vekton located at Grenloch, New Jersey or the facility of PPM
located at Putnam, Connecticut (as applicable) (the "Supplier Facility").
1.3 Terms and Conditions of Sale. Unless otherwise stated in this
Agreement, all sales of Products to Purchaser shall be governed by the
Supplier's then applicable Standard Terms and Conditions of Sale, a copy of the
current version of which is attached hereto as Exhibit B (the "Terms and
Conditions"), as the same may be amended from time to time.
1.4 Credit for Purchases. For purposes of Section 1.1, Products shall
be deemed to have been purchased on the date on which such Products are shipped
by Supplier, provided that Products shipped to Purchaser during such Contract
Year pursuant to an invoice that is not paid within 60 days from the date of the
invoice shall not be deemed to have been purchased during such Contract Year. If
any Products are scheduled to be shipped during a given Contract Year but are
not actually shipped until the following Contract Year and such delay in
shipping did not result from any act or failure to act of Purchaser, then, for
purposes of this Section only, the Products shall be deemed to have been shipped
as of the originally scheduled shipping date.
1.5 Molds. The parties acknowledge that Purchaser will provide Supplier
with certain proprietary molds owner by Purchaser (the "Molds") to enable
Supplier to perform its obligations under this Agreement and hereby grants
Supplier the full right to use such Molds to provide Purchaser with Products
hereunder. Purchaser shall retain full responsibility for maintenance and repair
of the Molds at its sole expense. The Molds will be stored and used at the
Supplier's facility or facilities but shall remain the sole property of the
Purchaser except as otherwise set forth herein. Notwithstanding the foregoing,
during the term of this Agreement, Purchaser shall not be entitled to, and shall
not, move the Molds from Supplier's facility or facilities.
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2. Purchase Orders. Products may be purchased by Purchaser at any time
and from time to time through the issuance of purchase orders. Notwithstanding
that a purchase order may not refer to this Agreement, any purchase order for
Products issued during the Term will be deemed to have been issued pursuant to
this Agreement and will be governed by the terms and conditions of this
Agreement; provided that in the event any terms and conditions of a purchase
order are contrary to or in conflict in any manner with the terms and conditions
of this Agreement, this Agreement will control and supersede to the extent of
any such conflicting terms and conditions, unless the parties expressly agree to
the contrary in writing. All purchase orders for Products submitted will state
the following information as applicable:
(i) purchase order number by which such order shall be
identified;
(ii) description of Products by type, name or number, which
may include drawings and/or specifications;
(iii) quantity or lots and assortments ordered, including
packaging and inspection requirements;
(iv) desired delivery dates and quantities or lots to be
received on each such date; and
(v) the shipping address to which the Products are to be
delivered.
3. Delivery, Taxes and Inspection.
3.1. Delivery and Inspection. Supplier will arrange for delivery of the
Products (at Purchaser's cost) in accordance with Purchaser's written
instructions, to the address specified in the purchase order, and title to, and
risk of loss or damage to, the Products will pass to Purchaser upon delivery by
Supplier, FCA Supplier Facility. The Initial Price (as defined in Section 4.1)
and any Reset Price exclude any and all insurance, shipping, freight, packing
and other delivery charges, all of which charges shall be paid by Purchaser upon
receipt of an invoice therefor from the Supplier. Delivery of the Products to
the first carrier shall constitute delivery to Purchaser, whereupon risk of loss
is transferred to Purchaser, and all claims for loss or damage in transit or for
non-delivery shall be made by Purchaser against the carrier. At Supplier's
option, Products may be shipped in advance of the requested shipment date or in
installments unless otherwise instructed in the purchase order. All delivery
information (including time for shipment) is approximate. Supplier's sole
responsibility is to use reasonable commercial efforts to meet specified
shipment dates. Purchaser expressly absolves Supplier from any liability for any
loss or damage resulting from a failure to deliver or delays in delivery caused
by any conditions related to, or caused by, failure to process or inaccurate
processing of time-sensitive information and/or mechanisms, a labor dispute
(e.g. strike, slowdown or lockout), fire, flood, governmental act or regulation
(e.g. denial of export licenses), riot, inability to obtain supplies or shipping
space, plant breakdown, power failure, delay or interruption of carriers,
accidents, acts of God or other causes beyond Supplier's control.
notwithstanding the above, Supplier shall not be liable for any damage or
penalties whatsoever, whether indirect, incidental, special or consequential,
resulting from Supplier's failure to deliver or delay in delivery for any
reason. Overages and shortages of 10% or less ("Permitted Shortages") are
allowed. Within 30 business days of receipt, Purchaser shall inspect the
Products. Unless Purchaser notifies Supplier in writing of any nonconformities
within 45 business days of receipt, Purchaser shall be deemed to have accepted
the Products without qualification, and cannot, thereafter, reject any Products.
Once used, Products are deemed to be fully conforming to this Agreement.
3.2. Taxes and Other Charges. Purchaser will be responsible for and
will reimburse Supplier upon receipt of invoice or shall pay directly if so
requested by Supplier all taxes, charges, levies and assessments (including all
applicable sales and use taxes) imposed by any federal, state or local
governmental or taxing authority upon and relating to the purchase or sale of
Products or the use or possession of Products, excluding, however, any and all
taxes computed on the income of Supplier. To the extent Supplier is required by
law to collect such taxes (federal, state or local), one hundred percent (100%)
thereof shall be added to invoices as separately stated charges and paid in full
by Purchaser unless Purchaser is exempt from such taxes and furnishes Supplier
with a certificate of exemption in a form reasonably acceptable to Supplier
prior to issuance of such invoice.
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4. Purchase Price.
4.1. Initial Price. Purchaser agrees to pay Supplier, and Supplier
agrees to accept, as full payment for any Product sold and delivered to
Purchaser hereunder, the Initial Price unless and until increased or decreased
from time to time as provided in Section 4.2 (the "Reset Price"), or as
otherwise provided under Section 6. "Initial Price" means the purchase price
with respect to each applicable Product as set forth on Schedule 4.1 unless and
until adjusted in accordance with the terms and conditions of this Agreement.
4.2. Price Adjustment.
(a) Annual Price Adjustment. Effective on the first day of
each Contract Year, the Initial Price or then applicable Reset Price for such
Product shall be increased in direct proportion to the increase (if any) in the
Producer Price Index [announced by the United States Department of Commerce as
published in the Wall Street Journal] (the "Index") as of the end of the
calendar month immediately prior to the first day of such Contract Year as
compared to the Index as of the end of the last calendar month of the previous
Contract Year. Notwithstanding any contrary provision hereof, the Reset Price
for a Product resulting from an adjustment under this Section 4.2(a) (i) shall
in no event be less than the last Reset Price established during the preceding
Contract Year for such Product pursuant to Section 4.2(b), and (ii) shall in no
event be less than the price in effect on the last day of the prior Contract
Year increased proportionately to reflect any increase in raw materials costs
(which increase shall be supported by reasonable documentation delivered by
Supplier to Purchaser) that has not been reflected in a previous price
adjustment under Section 4.2(b).
(b) Interim Price Adjustment. In the event Supplier incurs an
increase in raw materials costs with respect to any Product of an amount shown
in the table set forth below since the date of the most recent price adjustment
under Section 4.2(a) or this Section 4.2(b), Supplier shall have the right to
increase the Initial Price or the then-prevailing Reset Price so that the new
applicable Reset Price reflects such increase:
Injection molded chain P/N 631-10559 (Celanex material) 5%
Other injection molded items 7%
Cast nylon stub shafts and bull sprockets 10%
Other cast nylon items 15%
Supplier shall provide Purchaser with written notice of any such price increase
together with reasonable documentation evidencing the increase in raw material
costs. Any increase from the Initial Price or Reset Price, if any, for a Product
in accordance with this subsection shall be effective only upon thirty (30) days
prior written notice to Purchaser and shall apply to each order for such Product
received after such effective date. Such increase also shall also apply to (i)
each order for such Product received prior to the date of Supplier's notice of
such price increase, but only to the extent the Products ordered are to be
delivered on or after the date three (3) months following the date of Supplier's
notice of such price increase, and (ii) to each order received after the date of
such notice but before the effective date of such price increase, but only to
the extent the Products ordered are to be delivered on or prior to the effective
date of such price increase.
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5. Payment. Terms of payment by Purchase to Supplier for Products will
be net sixty days (60) days from the date of invoice. The total aggregate amount
of invoices of Purchaser outstanding at any time shall not exceed $400,000 (the
"Credit Limit"). Supplier may reject any order from Purchaser, without liability
or penalty, if any invoice of Purchaser is past due or if accepting such order
would cause the total aggregate amount of outstanding invoices of Purchaser to
exceed the Credit Limit. In addition, if payment is not made when due, Supplier
may suspend all future delivery or other performance with respect to Purchaser
without liability or penalty and, in addition to all other sums payable
hereunder, Purchaser shall pay to Supplier (i) the reasonable costs and expenses
incurred by Supplier in connection with all actions taken to enforce collection
or to preserve and protect Supplier's rights hereunder, whether by legal
proceedings or otherwise, including without limitation reasonable attorneys'
fees, court costs and other expenses and (ii) interest on all amounts unpaid
after 60 days charged at the monthly rate of 1-1/2% or the highest rate
permitted by law, whichever is lower. Notwithstanding the foregoing, prior to
the date on which all amounts outstanding under the Note (as defined in Section
12.5 below) have been paid in full (the "Discharge Date"), Purchaser shall be
entitled to withhold an amount equal to 15% of the amount due under any invoice
hereunder. Such withheld amount shall be held or transferred to Polychem (or to
a third party, including GE Capital Corporation ("GE Capital"), The Budd Company
("Budd") and Textron Financial Corporation ("Textron")), pursuant to Section
12(c) below), and such withheld amount shall automatically be credited against
Supplier's payment obligation under the Note. Supplier may, in its sole
discretion, adjust the Credit Limit based on Purchaser's payment history with
Supplier and purchase levels under this Agreement.
6. New Products and Improved Products; Packaging Changes.
6.1. New Products. Supplier will promptly offer and make available to
Purchaser, on the same pricing terms as set forth in Section 4 above, any
alternative or new or subsequent generation products or versions thereof
manufactured, sold or supplied by Supplier which are in the same product line as
the Products or, but only at Supplier's election, in a product line
complimentary to the Products (in any case, collectively, the "New Products"),
which New Products shall be deemed Products hereunder upon the parties' good
faith agreement as to revised specifications with respect to such New Products.
6.2. Improved Products. Any proposed improvements, upgrades,
enhancements, developments and changes to any Product (collectively, the
"Improved Products") will be promptly offered and made available to Purchaser
and shall be incorporated in and deemed to be Products hereunder upon the
parties' good faith agreement as to revised specifications with respect to such
Improved Products.
6.3. Testing. Purchaser reserves the right, at Purchaser's sole cost,
and Supplier shall provide Purchaser all such necessary information, data,
samples and materials as Purchaser may request or require to enable Purchaser
to, inspect, test, evaluate and confirm fully to Purchaser's satisfaction the
performance and quality of any proposed New Products or Improved Products.
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7. Term and Termination.
7.1. Term. This Agreement will be for an initial term of five (5) years
following the Effective Date (the "Initial Term") and will be automatically
extended for successive one (1) year periods (each a "Renewal Term" and,
together with the Initial Term, the "Term"), unless either party elects to
terminate this Agreement upon written notice to the other party no less than one
hundred and eighty (180) days prior to the end of Initial Term or any Renewal
Term (as applicable), or unless earlier terminated as set forth herein.
7.2. Termination. This Agreement may be terminated, in whole or in
applicable part relating to the Product(s) affected and other relevant portions
of this Agreement (all of which, the parties acknowledge and agree, are
severable and divisible), by either party (or the indicated party) upon the
occurrence of any of the following:
(a) Upon written notice if a material default or breach by the
other party has not been cured within thirty (30) days after written notice has
been provided to the defaulting party.
(b) Immediately if and upon the occurrence of any one of the
following events: (i) the other party hereto files a voluntary petition in
bankruptcy; (ii) an involuntary petition in bankruptcy is filed against such
other party hereto and is not removed within sixty (60) days after the filing
thereof; (iii) such other party hereto is adjudicated bankrupt; (iv) such other
party hereto makes an assignment for the benefit of its creditors; (v) a court
assumes jurisdiction of the assets of such other party hereto under a federal
bankruptcy or reorganization act or otherwise; or (vi) a trustee or receiver is
appointed by a court for all or a substantial portion of the assets of such
other party hereto.
(c) By Supplier immediately upon written notice to Purchaser
if (i) the letter agreements described in Section 12.2(b) below have not been
delivered to Supplier on or before April 30, 2002, or (ii) if the instruments
described in Section 12.2(c) below have not been delivered to Supplier on or
before May 31, 2002.
8. Warranty, Limitation; Remedy; and Insurance.
8.1. Warranty. Subject to the warranty limitation set forth in Section
8.2 below, Supplier warrants that the Products sold hereunder will substantially
conform to the applicable specifications and will be free from defects in
material and workmanship for one year after shipment FCA, under normal and
proper use and service. Drawings prepared by Supplier and approved by Purchaser
shall be deemed the correct interpretations of the work to be performed even if
inconsistent with the plans and specifications. Upon resale, Purchaser agrees to
extend to its customers no greater warranties, and limit its liability and
remedies to the same extent, as those set forth herein.
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8.2 Warranty Limitation. The warranty and remedies for breach of
warranty provided for in this Agreement do not cover, and Supplier shall not be
liable for, (i) abnormal wear and tear or damage caused by use or handling which
is improper or contrary to the instructions published by Supplier, (ii) improper
storage of Products, including storage of Products unprotected from weather and
other job conditions, (iii) any cause beyond the control of Supplier, including
without limitation conditions caused by movement, settlement or structural
defects of the environment in which the Products are installed, fire, wind,
hail, flood, lightning or other acts of God, any conditions related to, or
caused by, failure to process or inaccurate processing of time-sensitive
information and/or mechanisms, intentional acts, accidents, negligence or
exposure to harmful chemicals, pollutants or other foreign matter or energy, or
(iv) any damage to the finish of the Products after they leave Supplier's
facility. Items repaired or replaced and designs corrected under warranty are
warranted only for the remainder of the original warranty period. All Product
literature is for illustrative purposes only and does not contain a warranty of
any kind. Supplier's advice relating to the technical usage of the Products or
the intellectual property rights of others, whether provided orally or in
writing or through the provision of test results, is given in accordance with
Supplier's best knowledge at that time, but shall at all times be deemed to be
non-binding. Such advice does not relieve Purchaser from the obligation, and
Purchaser accepts full responsibility, to confirm for himself the suitability of
the Products for the intended purpose(s). THE WARRANTY SET FORTH IN SECTION 8.1
IS STRICTLY LIMITED TO ITS TERMS AND IS IN LIEU OF ALL OTHER WARRANTIES,
GUARANTEES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING,
USAGE OF TRADE OR OTHERWISE, SPECIFICALLY EXCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.3 Remedy. Purchaser's sole and exclusive remedy, and Supplier's only
obligation for breach of warranty hereunder, shall be, at Supplier's option in
its sole discretion, to (i) repair or replace the defective Product which fails
within the one year warranty period, free of charge, provided that Purchaser
promptly notifies Supplier of such failure and, after receipt of prior written
authorization from Supplier, returns such Product to the place requested by
Supplier, freight prepaid, and thereupon Supplier finds such to be defective or
(ii) issue a credit equal to the price of the defective Product which fails
within the one year warranty period. Purchaser must pay all related costs of
repair or replacement, including removal, installation or reinstallation costs.
Supplier's personnel must be granted access to inspect the Products claimed to
be defective at the site of their installation or use.
8.4 Disclaimer; Limitation of Liability, Time For Claims. Purchaser
agrees that Supplier shall not be liable for incidental, special, INDIRECT or
consequential or other similar damages including but not limited to loss of
profit or revenues, damage for loss of use of the Products, damage to property,
claims of third parties, including personal injury or death on account of use of
the Products or failure of Supplier to warn against or instruct on, or
adequately warn against or instruct on, the dangers of the Products or the safe
and proper use of the Products, whether or not Supplier has been advised of the
potential for such damages. Supplier's total liability hereunder from any cause
whatsoever (except liability from personal injury caused by Supplier's
negligence), whether arising under contract, warranty, tort (including
negligence), strict liability, products liability or any other theory of
liability, will be limited to the lesser of Purchaser's actual damages or the
price paid to Supplier for the Products that are the subject of Purchaser's
claim. All claims against Supplier must be brought within one year after the
cause of action arises, and Purchaser expressly waives any longer statute of
limitations.
8.5 Insurance. During the term of this Agreement, Supplier shall
maintain comprehensive product liability insurance with respect to the supply of
the Product by Supplier which is reasonable as to amount and coverage as are
adequate to cover the obligations under this Agreement and as are appropriate
for companies of like size, taking into account the scope of activities
contemplated herein.
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9. Force Majeure.
9.1 Occurrence of Force Majeure. No party is liable for any failure to
perform its obligations under this Agreement (other than obligations to make
payments of money) if such performance has been delayed, interfered with or
prevented by an event of Force Majeure.
9.2 Definition. As used in this Agreement, "Force Majeure" means any
circumstances whatsoever which are not within the reasonable control of the
party affected thereby, including without limitation an act of God, war,
insurrection, riot, strike or labor dispute, shortage of materials, fire,
explosion, flood, government requisition or allocation, breakdown of or damage
to plant, equipment or facilities, interruption or delay in transportation, fuel
supplies or electrical power, embargo, boycott, order or act of civil or
military authority, legislation, regulation or administrative rules, or any
inability to obtain or maintain any governmental permit or approval. The party
who declares Force Majeure will give prompt notice to the other party of such
declaration.
9.3 Removal of Force Majeure. If the performance of any obligation has
been delayed, interfered with or prevented by an event of Force Majeure, then
the party affected by such event will take such actions as are reasonably
available to remove the event of Force Majeure or to mitigate the effect of such
occurrence, except that labor disputes will be settled at the sole discretion of
the party affected thereby.
9.4 Obligations Suspended. If an event of Force Majeure occurs, the
obligations of the parties under this Agreement (other than obligations to make
payments of money) will be suspended during, but not longer than, the
continuance of the event of Force Majeure. Neither Supplier nor Purchaser will
be liable for any delay in or failure of performance to the extent due to causes
which are beyond its reasonable control and not reasonably foreseeable and
avoidable, including, but not limited to, an act of governmental or military
authorities, war, riot, strike, lockout, catastrophic "acts of God," including,
without limitation, fire, earthquake, flood, disaster and accident, embargo,
import quotas or other import restrictions. When either Supplier or Purchaser
claims an excuse for non-performance under this Section, it shall give prompt
notice in writing to the other party specifying the nature and extent of such
force majeure event, when it commenced and the estimated duration thereof and
shall use all reasonable efforts to avoid or remove such causes or mitigate the
effects of non-performance. If and to the extent of any delay which is excused
pursuant to this Section, the relevant delivery dates for the Products and other
excused performance dates will be deemed extended for a period of time equal to
the period of such excused delay and the parties may mutually agree on new
delivery or performance dates to apply at the conclusion of such extension
period. When only a part of Supplier's capacity to perform is affected by the
conditions described in or contemplated by this Section, then during such period
in which Supplier is unable to fully perform, Supplier shall allocate available
products to Purchaser on a first priority basis and thereafter may allocate
available products among its various other customers. Notwithstanding any of the
foregoing, Purchaser shall be permitted, without regard for the provisions of
this Agreement, to purchase the remainder of its requirements not supplied by
Supplier, even if such non-supply is excused hereunder, from a third-party
supplier until such time as Supplier can adequately fill Purchaser's orders for
Product.
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10. Confidentiality.
10.1. Confidentiality. Each party (the "Recipient") acknowledges that
by reason of its relationship to the other party (the "Disclosing Party")
hereunder, it and its affiliates will have access during the Term to certain
confidential and/or proprietary information and materials concerning the
Disclosing Party's and the Disclosing Party affiliates' business and operations,
business, product plans, technical or non-technical data, specifications,
formulae, patterns, compilations, devices, methods, techniques, drawings,
processes, designs, lists of actual or potential customers, suppliers or vendors
(the "Confidential Information") which is of substantial value to the Disclosing
Party and such affiliates, the value of which would be significantly impaired if
such information were disclosed to third parties. The Disclosing Party and its
affiliates retain for themselves all of their respective ownership rights in and
to all such Confidential Information except to the extent licensed or otherwise
transferred to Disclosing Party as expressly provided by this Agreement.
Throughout the Term and indefinitely thereafter, the Recipient shall keep, and
shall ensure that its affiliates, directors, officers, employees, subcontractors
and agents keep all Confidential Information acquired from the Disclosing Party
pursuant to this Agreement, including the contents of this Agreement, except
"Confidential Information" shall not include information that (i) is or
hereafter becomes generally available to the public other than by reason of a
default with respect to a confidentiality obligation under this Agreement; or
(ii) was already known to, or independently developed without use of the
Disclosing Party's Confidential Information by, the Recipient as evidenced by
prior written documents in the Recipient's possession that were received or
obtained without violating any provision of this Agreement or any
confidentiality obligation owed by a third party to the Disclosing Party; or
(iii) is disclosed to the Recipient by a person who is not in default of any
confidentiality obligation to the Disclosing Party; or (iv) is required to be
disclosed in compliance with the applicable law of any governmental of competent
jurisdiction. Each Recipient agrees to take all commercially reasonable action
or, if greater, use the same amount of care to protect the rights of the
Disclosing Party in the Confidential Information as Recipient exercises with
respect to its own similar confidential and proprietary information.
10.2. Disclosure to Personnel. Neither party will, and will cause its
directors, officers, employees and agents not to, disclose to any Non-Essential
Personnel (defined below), or otherwise use for its own benefit (except as may
be consistent with its rights expressly granted in this Agreement and in the
performance of its obligations hereunder) any Confidential Information.
"Non-Essential Personnel" means, with respect to any particular information, any
and all persons who are not involved in the design, manufacture, sale, purchase
or resale of Products, such party's performance of its other obligations
hereunder or otherwise do not have a need to know such information.
10.3. Return of Confidential Information. Upon the expiration or any
earlier termination of this Agreement, each Recipient shall return all
Confidential Information and all copies thereof to the Disclosing Party or
destroy the same and, in either and both cases, certify to such return or
destruction, as the case may be, to the Disclosing Party.
10.4. Survival of Obligations. The obligations set forth in this
Article 10 will survive until the termination or expiration of this Agreement
for any reason.
10.5. Acknowledgement. The parties acknowledge and agree that any
breach of the terms of this Section would cause irreparable harm to the injured
party and agree that the injured party shall be entitled, in addition to
whatever remedies may otherwise be available under this Agreement or at law, to
injunctive relief or other applicable equitable remedies with respect to any
such actual or threatened breach.
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11. [Intentionally Omitted]
12. Purchase and Sale of Assets.
12.1 Lease, Purchase and Sale of Assets. Polychem hereby agrees to sell
to Supplier, and Supplier agrees to purchase from Polychem, on the Discharge
Date, all of Polychem's right, title and interest in and to the following assets
of Polychem (collectively, the "Assets"):
(a) all equipment, machinery, fixtures, tools, dies, patterns,
vehicles, computer hardware and software and furniture listed on Schedule
12.1(a) (collectively, the "Equipment"), and all supplies, spare parts and
warranties relating to any of the Equipment;
(b) all patents, inventions, discoveries, techniques,
processes, methods, formulae, designs, trade secrets, confidential information,
know-how and ideas used or useful in connection with the Business to the extent
related to the manufacturing process (the "Intellectual Property"); and
(c) all books, records, files, ledgers, drawings,
specifications and manuals relating to the Business or any of the Assets and all
other information relating to the Business or any of the Assets, regardless of
the form in which such information appears.
All assets of Polychem other than the Assets are referred to herein as the
"Excluded Assets."
In addition, Polychem has granted Supplier the right to use the Molds
as set forth in Section 1.5. As security for the Performance by Polychem of its
obligations hereunder, Polychem hereby grants Supplier a security interest in
the Molds and the Equipment and all of Polychem's right, title and interest
therein and thereto subject, in the case of the Equipment, to the prior liens of
GE Capital, Budd, Textron (as to certain items of the Equipment as set forth on
Schedule 13.12 hereto) and Public School Employees' Retirement System ("PSERS").
12.2 Title to Assets.
(a) The parties acknowledge that as of the date hereof, the
Equipment is subject to the following liens:
(i) Liens in favor of GE Capital securing certain purchase
money indebtedness of Polychem to GE Capital in the aggregate
outstanding principal amount of $164,000 as of March 1, 2002 (the "GE
Debt") and other indebtedness of Polychem to GE Capital;
(ii) A lien in favor of Budd securing certain obligations of
Polychem to Budd (the "Budd Obligations") under a Foreclosure and Note
Restructuring Agreement dated as of November 20, 2001 among Polychem,
Budd and Paul DeJuliis (the "Budd Agreement") and a judgment lien in
favor of Budd arising from a judgment entered in the Court of Common
Pleas of Chester County, Pennsylvania in October, 2001;
(iii) As to certain items of Equipment, a purchase money lien
in favor of Textron securing purchase money obligations to Textron in
the outstanding principal amount of $______ (the "Textron
Obligations"); and
(iv) A lien in favor of PSERS granted pursuant to an Open End
Mortgage and Security Agreement dated as of August 24, 1999 between
Polychem and PSERS (the "PSERS Lien").
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Effective as of the date hereof and continuing until the date on which the Note
has been paid in full (the "Discharge Date") and the transfer of title to
Supplier on the Discharge Date has occurred, Polychem hereby leases to Supplier
and grants to Supplier the exclusive right to use the Equipment. On or before
the date on which the GE Debt has been paid in full, Polychem shall cause GE
Capital to execute and deliver to Supplier a release of its lien on the
Equipment and the Molds, and on or before the Discharge Date, Polychem shall
cause Budd, Textron, PSERS and any other person or entity holding a lien or
security interest in the Equipment or the Molds to execute and deliver to
Supplier a release of its lien on the Equipment and the Molds. On the Discharge
Date, Polychem shall execute and deliver to Supplier a bill of sale in form and
substance acceptable to Supplier transferring title to the Assets to Supplier
free and clear of any and all liens and encumbrances.
(b) Notwithstanding any contrary provision of this Agreement,
this Agreement and the obligations of Supplier hereunder shall not become
effective until Polychem has delivered to Supplier the following (and Supplier
shall be entitled to terminate this Agreement as provided in Section 7.2(c)
above if the following have not been delivered to Supplier by April 30, 2002):
(i) A letter agreement executed by GE Capital in favor of
Supplier, in form acceptable to Supplier, to the effect that GE Capital
will release and terminate any and all liens it may have against the
Equipment or the Molds on or before the earlier to occur of (x) the
Discharge Date and (y) the payment in full of the GE Debt;
(ii) A letter agreement executed by Budd in favor of Supplier,
in form acceptable to Supplier, to the effect that Budd will release
and terminate any and all liens it may have against the Equipment or
the Molds on or before the earlier to occur of (x) the Discharge Date
and (y) the payment in full of the Budd Obligations;
(iii) Copies, certified by the Secretary or Assistant
Secretary of Polychem, of the Articles of Incorporation and Bylaws of
Polychem and resolutions duly adopted by the Board of Directors and (if
required by law) shareholders of Polychem approving the transactions
contemplated hereby; and
(iv) Copies, certified by the Secretary or Assistant Secretary
or other appropriate officer of ECESIS, of the Certificate of
Organization and Operating Agreement of ECESIS and resolutions duly
adopted by the Board of Directors (or equivalent governing body) and
(if required by law) members of ECESIS approving the transactions
contemplated hereby.
(c) Notwithstanding any contrary provision of this Agreement,
Supplier shall be entitled to withhold payment of the Purchase Price until
Purchaser has delivered to Supplier, and may terminate this Agreement as
provided in Section 7.2(c) above unless Purchaser has delivered to Supplier on
or before May 31, 2002, the following:
(i) A letter agreement executed by Textron in favor of
Supplier, in form acceptable to Supplier, to the effect that Textron
will release and terminate any and all liens it may have against the
Equipment on or before the earlier to occur of (x) the Discharge Date
and (y) the payment in full of the Textron Obligations; provided that
if Supplier agrees to assume the outstanding Textron Obligations from
Polychem, Textron shall not be required to release its lien on the
Equipment and Polychem instead shall deliver to Supplier Textron's
consent to such assumption as set forth in Section 12(f) below; and
(ii) A release executed by PSERS, in form acceptable to
Supplier, releasing and terminating the PSERS Lien.
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The applicable date on which GE Capital, Budd, Textron or PSERS releases its
liens as set forth in Sections 12(b) and 12(c) above is referred to herein as
the "Release Date".
(d) Polychem acknowledges and agrees that until the release of
all of the liens described in Sections 12(b) and 12(c) above on the respective
Release Dates, all payments to which Polychem is entitled under the Note shall
be made by Supplier as follows:
(i) first, directly to GE Capital in repayment of the GE Debt
until the earlier of the Discharge Date and the date of payment in full
of the GE Debt;
(ii) second, upon payment in full of the GE Debt, directly to
Textron in payment of the Textron Obligations until the earlier of the
Discharge Date and the date of payment in full of the Textron
Obligations unless Supplier has elected to assume the Textron
Obligations pursuant to paragraph (f) below,
(iii) third, upon payment in full or assumption by Supplier of
the Textron Obligations, directly to Budd in payment of the Budd
Obligations until the earlier of the Discharge Date and the date of
payment in full of the Budd Obligations; and
(iv) thereafter to Polychem as set forth herein and in the
Note (as defined herein).
All such payments to GE Capital, Textron or Budd shall be deemed to be payments
of Purchase Price to Polychem for purposes of this Agreement and the Note.
(e) In the event that Purchaser defaults in the performance of
its obligations under any of the Transaction Documents (defined below), any of
its agreements creating or relating to the GE Debt or the security interest of
GE Capital in the Equipment, any agreement with Textron with respect to the
Textron Obligations, or the Budd Agreement, Supplier shall have the option (the
"Option"), but not the obligation, upon written notice to Polychem, GE Capital,
Textron and Budd, to pay the outstanding unpaid balance of the Purchase Price
directly to GE Capital to the extent of the remaining balance of the GE Debt,
then to Textron to the extent of any remaining balance of the Textron
Obligations (unless Supplier elects to assume the Textron Obligations pursuant
to paragraph (f) below), and then to pay any remaining portion of the Purchase
Price to Budd in partial payment of the Budd Obligations (such payments are
referred to collectively as the "Pay-Off Payment"), and such Pay-Off Payment to
GE Capital, Textron and/or Budd, together with any prior payments of the
Purchase Price made or deemed to have been made by Supplier to Polychem, GE
Capital, Textron or Budd, shall be deemed full payment of the Purchase Price.
Exercise by Supplier of the Option shall not be deemed a waiver by Supplier of
any default by Purchaser hereunder and Supplier shall continue to have all
remedies available to it under this Agreement.
(f) In lieu of making the payments to Textron on the Textron
Obligations described in Section 12(c)(ii) above, Supplier may elect, upon
written notice to Polychem on or prior to April 30, 2002, to assume the Textron
Obligations, in which event Polychem shall cause Textron to consent to an
assignment to Supplier of the Textron Obligations, and Supplier shall receive
credit against its Purchase Price obligations under the Note in an amount equal
to the obligations assumed by Supplier.
(g) Upon exercise of the Option, or upon termination of this
Agreement pursuant to Section 7.2(c)(ii) above, Supplier may exercise its
remedies as a secured party with respect to the Molds and shall have the right
to use the Molds to produce Products for any customer, including, without
limitation, any past or present customer of Purchaser.
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12.3 [Omitted.]
12.4 No Assumption of Liabilities. Supplier shall assume and become
liable only for such liabilities as arise out of or relate to its ownership or
operation of the Assets or its conduct of the Business as conducted by Supplier
after the Closing Date and (b) arise out of events first occurring or conditions
first existing after the date on which Supplier receives title to all of the
Assets free and clear of any and all liens and encumbrances (collectively, the
"Assumed Liabilities"). All liabilities which arise out of or relate to the
Excluded Assets or, except for the Assumed Liabilities, which arise out of or
relate to the Assets or the Business (collectively, the "Excluded Liabilities")
shall continue to be liabilities of Polychem. Without limiting the foregoing,
Polychem shall remain liable for all product liability claims made with respect
to products of the Business manufactured by Polychem sold on or before the
Closing Date or and any taxes relating to the Business or the Assets prior to
the Closing Date.
12.5 Purchase Price. The purchase price for the Assets (the "Purchase
Price") shall be TWO HUNDRED EIGHTY SEVEN THOUSAND and 00/100 U.S. Dollars
($287,000), which amount shall be payable by Supplier by delivery to Polychem at
the closing under this Agreement (the "Closing") of a Promissory Note of
Supplier in substantially the form of Exhibit C hereto (the "Note"). The Note
shall be payable solely from a portion of the payments made, or deemed to have
been made, by Polychem to Supplier under this Agreement. Polychem acknowledges
that one item of Equipment a 3-axis CNC milling machine currently requires
repair. Polychem agrees to cause such item of Equipment to be repaired prior to
shipping it to Supplier, and agrees that if Polychem fails to repair the item,
Supplier shall be entitled to cause it to be repaired and the Purchase Price
shall be reduced by an amount equal to the cost incurred by Supplier with
respect to such repair notwithstanding any contrary provision hereof or of the
Note.
12.6 Assignment of Value. Supplier and Polychem shall use their best
efforts to comply with the applicable requirements of the Internal Revenue Code
of 1986, as amended (the "Code"), by preparing a schedule to be executed
following the transfer of the Assets to Supplier reflecting the allocation of
the Purchase Price to the respective Assets, which allocation shall be used by
them in preparing their respective income tax returns; provided, that any
failure to agree on such allocation shall not relieve either party of its
obligations hereunder.
12.7 Non-Competition. As a condition to Supplier's obligations to pay
the Purchase Price, each Purchaser shall have entered into a non-competition
agreement (the "Non-Competition Agreement" and, together with this Agreement and
the Note and each other document contemplated thereby or hereby, the
"Transaction Documents") in substantially the form of Exhibit D attached hereto.
13. Representations and Warranties of Polychem and ECESIS. Polychem and
ECESIS hereby jointly and severally represent and warrant to the Supplier as
follows:
13.1 Organization and Qualification. Polychem is a corporation duly
organized, validly existing and in good standing in the Commonwealth of
Pennsylvania. ECESIS is a limited liability company duly organized validly
existing and in good standing in the State of Delaware. Each of Polychem and
ECESIS is duly qualified to do business as a foreign corporation and is in good
standing in all jurisdictions in which the ownership of its properties or the
nature of its business makes such qualification necessary, except to the extent
that the failure to be so qualified has not resulted in, and is not likely to
result in, a material adverse change in the business, operations, financial
condition or prospects of the Business (a "Material Adverse Change").
13.2 Power and Authority. Each of Polychem and ECESIS has the corporate
power and authority to own its properties and assets, to conduct its business as
presently conducted and to execute, deliver and perform this Agreement.
13.3 Execution and Binding Effect. This Agreement and each of the
Transaction Documents to which it is a party have been duly and validly executed
and delivered by Polychem and constitute legal, valid and binding obligations of
Polychem enforceable against Polychem in accordance with their respective terms.
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13.4 No Breach, Default, Violation or Consent. The execution, delivery
and performance by Polychem of this Agreement and the other Transaction
Documents to which it is a party do not and will not:
(a) violate Polychem's charter, or ECESIS's certificate of
organization or operating agreement or by-laws;
(b) breach or otherwise violate any order, writ, judgment,
injunction or decree issued by any governmental entity (each a "Governmental
Order") which names Polychem or ECESIS or is directed to Polychem or ECESIS, the
Business or any of the Assets;
(c) violate any law, rule, regulation, ordinance or code of
any governmental entity (each a "Governmental Rule"); or
(d) require any consent, authorization, approval, exemption or
other action by, or any filing, registration or qualification with, any
governmental entity.
13.5 Financial Information. Polychem has previously delivered to
Supplier correct and complete information setting forth, in reasonable detail,
Polychem's sales information and operational costs and expenses, as they related
to the Business, for the fiscal years ended December 31, 2000 and 1999 and the
six months ended June 30, 2001 (the "Operational Statements"). The information
contained in the Operational Statements is accurate and correct and represents
fairly the operations of Polychem with respect to the Business for the period
covered thereby.
13.6 Litigation. Except as otherwise disclosed on Schedule 13.6, there
is no pending or, to the best of Polychem's and ECESIS's knowledge, threatened
investigation, action or proceeding against Polychem or ECESIS related to the
Business, any of the Polychem Products or any of the Assets by or before any
governmental entity or arbitrator, and neither Polychem nor ECESIS has no
knowledge of any basis for any such action or proceeding. Schedule 13.6 sets
forth a correct and complete list of each investigation, action and proceeding
described in the preceding sentence, the parties thereto, the alleged basis
therefor, the relief sought therein and the current status thereof.
13.7 Absence of Certain Changes and Events. Since June 30, 2001:
(a) no casualty, loss or damage has occurred with respect to
any of the Assets, whether or not the same is covered by insurance;
(b) except for write downs not exceeding $10,000 in the
aggregate with respect to all the Assets, Polychem has not written down the
value of any of the Assets, except in each case in the ordinary course of
business and at a rate no greater than during the 12-month period ending on June
30, 2001;
(c) Polychem has not waived or released any of its rights with
respect to the Business or the Assets or permitted any of such rights to lapse;
(d) Polychem has not introduced any material change with
respect to the Business, including without limitation with respect to the
products or services it sells, the areas in which such products or services are
sold, its methods of manufacturing or distributing its products, its marketing
techniques or its accounting methods; and
(e) no Material Adverse Change, and no event which is likely
to result in a Material Adverse Change, has occurred.
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13.8 Governmental Orders. Schedule 13.8 sets forth a correct and
complete list of all Governmental Orders which name Polychem or are directed to
Polychem and which relate to the Business or any of the Assets, together with
the governmental entity who issued the same and the subject matter thereof.
Polychem is in compliance with all such Governmental Orders.
13.9 Business Permits. There are no governmental permits, licenses,
franchises, certificates, authorizations, consents or approvals necessary under
applicable Governmental Rules held by Polychem with respect to the Business or
the Assets ("Business Permits") which are required to be transferred to Supplier
or obtained by Supplier in order for Supplier to carry on the Business as now
being conducted or to own, occupy or use the Assets. No violations have been
recorded against any Business Permit held by Polychem, no citation, notice or
warning has been issued by any governmental entity with respect to any such
Business Permit, no investigation or hearing has been held by or before any
governmental entity with respect to any such Business Permit, Polychem has not
received any notice from any governmental entity that it intends to cancel,
revoke, terminate, suspend or not renew any such Business Permit and Polychem
has no knowledge of any basis for any of the foregoing. Polychem is in
compliance with all such Business Permits.
13.10 Condition of Personal Property. The Equipment is in good repair
and operating condition, is suitable for the purposes for which it is used and
constitutes all Equipment necessary to conduct the Business as currently
conducted. All of the Equipment is located at Polychem's facility located at
Franklin Avenue and Grant Street, Phoenixville, PA 19460.
13.11 Intellectual Property. There are no patents or registered and
unregistered copyrights, or any applications therefor, included in the
Intellectual Property, (b) licenses or other agreements pursuant to which any
Person has the right to use any Intellectual Property owned by Polychem, (c)
licenses or other agreements pursuant to which Polychem has the right to use any
Intellectual Property owned by others in manufacturing the Products, or any
consents which must be obtained, any filings which must be made, or any other
actions which must be taken in order to assign or otherwise transfer Polychem's
rights in any of the foregoing to Supplier. Polychem has the lawful right to use
all of the Intellectual Property, and no such use infringes upon the lawful
rights of any other Person. To the best of Polychem's knowledge, no Person is
using any intellectual property in a manner which infringes upon the lawful
rights of Polychem with respect to the Business or the manufacture of the
Products.
13.12 Title Matters. Except as otherwise disclosed on Schedule 13.12,
Polychem has good and marketable title to all Assets, in each case free and
clear of all liens, claims and encumbrances of any nature whatsoever
(collectively, "Liens").
13.13 Insurance. Schedule 13.13 sets forth a correct and complete list
of all insurance policies of which Polychem is the owner, insured, loss payee or
beneficiary and which relate to the Business or any of the Assets and indicates
for each such policy any pending claims thereunder. Polychem and ECESIS
represent and warrant, with respect to such policies, that (a) there has been no
failure to give any notice or present any material claim under any such policy
in a timely fashion or as otherwise required by such policy; (b) all premiums
under such policies which were due and payable on or prior to the date hereof
have been paid in full; (c) no such policy provides for retrospective or
retroactive premium adjustments; (d) Polychem has not received notice of any
material increase in the premium under, cancellation or non-renewal of or
disallowance of any claim under any such policy; (e) Polychem has not been
refused any insurance, nor has its coverage been limited by any carrier; and (f)
since January 1, 1999, Polychem has maintained, or been the beneficiary of,
general liability and product liability policies reasonable, in both scope and
amount, in light of the risks attendant to the Business and which provide
coverage comparable to coverage customarily maintained by others in similar
lines of business, and such policies have been "occurrence" policies and not
"claims made" policies.
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13.14 Warranty and Product Liability. Polychem has previously made
available to Supplier a correct and complete copy of each express warranty under
which it has any warranty obligations and which relate to the Business. No
warranty or product liability claims have been made against Polychem with
respect to the Business during the five-year period ended December 31, 2001 or
between December 31, 2001 and the Closing Date.
13.15 Brokers. Polychem has not employed or retained, and has no
liability to, any broker, agent or finder on account of this Agreement or any of
the other Transaction Documents or the transactions contemplated hereby or
thereby.
13.16 Delivery of Documents; Accurate Disclosure. Polychem has
previously delivered to Supplier correct and complete copies of each agreement,
document and instrument which Supplier (or its accountants or attorneys) has
requested in writing. To Polychem's knowledge, none of the information furnished
or to be furnished by Polychem to Supplier or any of its representatives in
connection with this Agreement and the other Transaction Documents, and none of
the representations and warranties of Polychem set forth herein, in any other
Transaction Document or in any certificate delivered in connection herewith or
therewith, (a) is or will be false or misleading in any material respect, (b)
contains or will contain any untrue statement of a material fact or (c) omits or
will omit any statement of material fact necessary to make the same not
misleading.
13.17 Solvency of Polychem. The fair salable value of the business and
assets of Polychem, after giving effect to the transactions contemplated by the
Transaction Documents, will be in excess of the amount that will be required to
pay Polychem's probable liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) on existing debts as they may become
absolute and matured. Polychem, after giving effect to such transactions, will
not be engaged in any business or transactions, or about to engage in any
business or transaction, for which it has taken as a whole an unreasonably small
capital, and Polychem has no intent (a) to hinder, delay or defraud any entity
to which it is, or will become, on or after the Closing Date, indebted, or (b)
to incur debts that would be beyond its ability to pay as they mature.
14. Representations and Warranties of Supplier. Supplier hereby
represents and warrants to Polychem as follows:
14.1 Organization. PPM is a corporation duly organized, validly
existing and in good standing in the State of Connecticut, and Vekton is a
corporation duly organized, validly existing and in goodstanding in the State of
New Jersey.
14.2 Power and Authority. Each of PPM and Vekton has the corporate
power and authority to own its properties and assets, to conduct its business as
presently conducted and to execute, deliver and perform this Agreement and the
other Transaction Documents to which it is a party.
14.3 Execution and Binding Effect. This Agreement and each of the
Transaction Documents to which it is a party, has been or will be duly and
validly executed and delivered by PPM and Vekton and constitute (or upon such
execution and delivery will constitute) legal, valid and binding obligations of
PPM and Vekton enforceable against PPM and Vekton in accordance with their
respective terms.
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14.4 No Breach, Default, Violation or Consent. The execution, delivery
and performance by Supplier of this Agreement and the other Transaction
Documents do not and will not:
(a) violate the charter or by-laws of PPM or Vekton;
(b) breach or result in a default (or an event which, with the
giving of notice or the passage of time, or both, would constitute a default)
under, require any consent under or give to others any rights of termination,
acceleration, suspension, revocation, cancellation or amendment of any contract,
agreement, instrument or document to which PPM or Vekton is a party or by which
PPM or Vekton or any of their respective properties or assets is bound;
(c) breach or otherwise violate any Governmental Order which
names PPM or Vekton or is directed to PPM or Vekton or any of their respective
properties or assets;
(d) violate any Governmental Rule; or
(e) require any consent, authorization, approval, exemption or
other action by, or any filing, registration or qualification with, any
governmental entity.
14.5 Brokers. Neither PPM nor Vekton has employed or retained, and has
no liability to, any broker, agent or finder on account of this Agreement or any
of the other Transaction Documents or the transactions contemplated hereby or
thereby.
14.6 Solvency of Supplier. The fair salable value of the business and
assets of PPM and Vekton, after giving effect to the transactions contemplated
by the Transaction Documents, will be in excess of the amount that will be
required to pay their respective probable liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) on existing debts as they
may become absolute and matured. Neither PPM nor Vekton, after giving effect to
such transactions, will be engaged in any business or transactions, or about to
engage in any business or transaction, for which it has taken as a whole an
unreasonably small capital, and neither PPM nor Vekton has any intent (a) to
hinder, delay or defraud any entity to which it is, or will become, on or after
the Closing Date, indebted, or (b) to incur debts that would be beyond its
ability to pay as they mature.
15. Indemnification.
15.1 Indemnification by Polychem and ECESIS. Polychem and ECESIS shall
jointly and severally defend, indemnify and hold harmless PPM and Vekton and
their respective directors, officers, employees and agents (each a "Purchaser
Indemnitee") from and against any and all claims (including without limitation
any investigation, action or other proceeding, whether instituted by a third
party against a Purchaser Indemnitee or by a Purchaser Indemnitee for the
purpose of enforcing its rights hereunder), damages, losses, liabilities, costs
and expenses (including without limitation reasonable attorneys' fees and court
costs) that constitute, or arise out of or in connection with:
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(a) any Excluded Assets or Excluded Liabilities;
(b) any misrepresentation or breach of warranty under Section
13 (a "Polychem Warranty Breach");
(c) any violation of an Environmental Rule (defined below) and
any audit or investigation relating to or arising our of an Environmental Rule
and, in each case, relating to the Business and/or the Assets prior to the
Closing; or
(d) any default by Purchaser in the performance or observance
of any of its covenants or agreements hereunder or under any other Transaction
Document.
For purposes of this Section, "Environmental Rule" means any
Governmental Rule which relates to Hazardous Substances, pollution or protection
of the environment, natural resources or public health or safety, including
without limitation any Governmental Rule relating to the generation, use,
processing, treatment, storage, release, transport or disposal of Hazardous
Substances and any common laws of nuisance, negligence and strict liability
relating thereto, together with all rules, regulations and orders issued
thereunder, as any of the same may be amended.
"Hazardous Substance" means any substance which constitutes, in whole
or in part, a pollutant, contaminant or toxic or hazardous substance or waste
under, or the generation, use, processing, treatment, storage, release,
transport or disposal of which is regulated by, any Governmental Rule.
15.2 Indemnification by Supplier. PPM and Vekton shall jointly and
severally defend, indemnify and hold harmless Polychem and its directors,
officers, employees, shareholders and agents (each a "Supplier Indemnitee") from
and against any and all claims (including without limitation any investigation,
action or other proceeding, whether instituted by a third party against a
Supplier Indemnitee or by a Supplier Indemnitee for the purpose of enforcing its
rights hereunder), damages, losses, liabilities, costs and expenses (including
without limitation reasonable attorneys' fees and court costs) that constitute,
or arise out of or in connection with:
(a) any of the Assets or Assumed Liabilities or Supplier's
operation of the Business after the Closing;
(b) any misrepresentation or breach of warranty under Section
14 (a "Supplier Warranty Breach");
(c) any default by Supplier in the performance or observance
of any of its covenants or agreements hereunder or under any other Transaction
Document.
15.3 Representation, Settlement and Cooperation. If any investigation,
action or other proceeding (each a "Proceeding") is initiated against any
Purchaser Indemnitee or Supplier Indemnitee (each an "Indemnitee") and such
Indemnitee intends to seek indemnification from Polychem or Supplier (each an
"Indemnitor"), as applicable, under this Article on account of its involvement
in such Proceeding, then such Indemnitee shall give prompt notice to the
applicable Indemnitor of such Proceeding; provided, that the failure to so
notify such Indemnitor shall not relieve such Indemnitor of its obligations
under this Article. Upon receipt of such notice, such Indemnitor shall
diligently defend against such Proceeding on behalf of such Indemnitee at its
own expense using counsel reasonably acceptable to such Indemnitee; provided,
that if such Indemnitor shall fail or refuse to conduct such defense, or such
Indemnitee has been advised by counsel that it may have defenses available to it
which are different from or in addition to those available to such Indemnitor,
or that its interests in such Proceeding are adverse to such Indemnitor's
interests, then such Indemnitee may defend against such Proceeding at such
Indemnitor's expense. Such Indemnitor or Indemnitee, as applicable, may
participate in any Proceeding being defended against by the other at its own
expense, and shall not settle any Proceeding without the prior consent of the
other, which consent shall not be unreasonably withheld. Such Indemnitor and
Indemnitee shall cooperate with each other in the conduct of any such
Proceeding.
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15.4 Notice and Satisfaction of Indemnification Claims. Indemnification
claims against Polychem and/or ECESIS shall be satisfied by set-off against any
amounts due pursuant to Section 12.5 or otherwise due under the Note, prior to
being satisfied out of any other funds of Polychem and/or ECESIS. No
indemnification claim shall be deemed to have been asserted until the applicable
Indemnitor has been given notice by the Indemnitee of the amount of such claim
and the facts on which such claim is based. For purposes of Section 15.5, notice
of an indemnification claim shall be deemed to cover claims arising out of all
related Proceedings so long as, in the case of Proceedings instituted by third
parties, the Indemnitee complies with Section 15.3. If the Indemnitee is not
Supplier, Polychem or ECESIS, then such notice shall be given on behalf of such
Indemnitee by Supplier or Polychem, as applicable. Indemnification claims shall
be paid within 30 days after the Indemnitor's receipt of such notice and such
evidence of the amount of such claim and the Indemnitor's liability therefor as
the Indemnitor may reasonably request.
15.5 Duration of Certain Indemnification Obligations. Claims for
indemnification under Section 15.1 may only be asserted within the following
time periods:
(a) claims arising out of any Purchaser Warranty Breach under
Section 13.12 (Title Matters) may be asserted at any time;
(b) claims arising out of or in connection with any Purchaser
Warranty Breach may be asserted at any time if the applicable representation or
warranty was fraudulently made; and
(c) all other claims may be asserted until the third
anniversary of the date hereof.
16. Miscellaneous.
16.1 Amendments. This Agreement may be amended only by a writing signed
by each of the parties, and any such amendment shall be effective only to the
extent specifically set forth in such writing.
16.2 Assignment. Neither this Agreement nor any right, interest or
obligation hereunder may be assigned, pledged or otherwise transferred by any
party, whether by operation of law or otherwise, without the prior consent of
the other party or parties; provided, that Supplier may assign its rights
hereunder to any affiliated company of the Supplier, to a successor by merger,
and to any purchaser of substantially all of the assets, and may collaterally
assign its rights hereunder to any lender.
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<PAGE>
16.3 Consent to Jurisdiction and Service of Process.
(a) Each of the parties hereby:
(i) irrevocably submits to the jurisdiction of the
Court of Common Pleas of Allegheny County, Pennsylvania and to the jurisdiction
of the United States District Court for the Western District of Pennsylvania for
the purposes of any action or proceeding arising out of or relating to this
Agreement or the other Transaction Documents or the subject matter hereof or
thereof and brought by any other party;
(ii) waives and agrees not to assert, by way of
motion, as a defense or otherwise, in any such action or proceeding, any claim
that (x) it is not personally subject to the jurisdiction or such courts, (y)
the action or proceeding is brought in an inconvenient forum or (z) the venue of
the action or proceeding is improper; and
(iii) agrees that, notwithstanding any right or
privilege it may possess at any time, such party and its property are and shall
be generally subject to suit on account of the obligations assumed by it
hereunder.
(b) Each party agrees that service in person or by certified
or registered U.S. mail to its address set forth in Section 16.9 shall
constitute valid in personam service upon such party and its successors and
assigns in any action or proceeding with respect to any matter as to which it
has submitted to jurisdiction hereunder.
(c) Notwithstanding the foregoing, any party may at its option
bring any action or other proceeding arising out of or relating to this
Agreement or any other Transaction Document or the subject matter hereof or
thereof against any other party or any of its assets in the courts of any
jurisdiction or place where such other party or such assets may be found or
where such other party may be subject to personal jurisdiction, and may effect
service of process as provided under any applicable Governmental Rule.
(d) Each party hereby acknowledges that this is a commercial
transaction, that the foregoing provisions for consent to jurisdiction and
service of process have been read, understood and voluntarily agreed to by each
party and that by agreeing to such provisions each party is waiving important
legal rights.
16.4 Counterparts; Telefacsimile Execution. This Agreement may be
executed in any number of counterparts, and by each of the parties on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all of which shall constitute but one and the same instrument. Delivery of an
executed counterpart of this Agreement by telefacsimile shall be equally as
effective as delivery of a manually executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by telefacsimile also
shall deliver a manually executed counterpart of this Agreement, but the failure
to deliver a manually executed counterpart shall not affect the validity,
enforceability or binding effect of this Agreement.
16.5 Entire Agreement. This Agreement and the Transaction Documents
contain the entire agreement of the parties with respect to the transactions
contemplated hereby and supersedes all prior written and oral agreements, and
all contemporaneous oral agreements, relating to such transactions.
16.6 Expenses. Except as otherwise specifically provided herein or in
any other Transaction Document, each party shall be responsible for such
expenses as it may incur in connection with the negotiation, preparation,
execution, delivery, performance and enforcement of this Agreement and the other
Transaction Documents.
16.7 Further Assurances. The parties shall from time to time do and
perform such additional acts and execute and deliver such additional documents
and instruments as may be required by applicable Governmental Rules or
reasonably requested by any party to establish, maintain or protect its rights
and remedies or to effect the intents and purposes of this Agreement and the
other Transaction Documents. Without limiting the generality of the foregoing,
each party agrees to endorse (if necessary) and deliver to the other, promptly
after its receipt thereof, any payment or document which it receives after the
Closing and which is the property of the other.
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<PAGE>
16.8 Governing Law. This Agreement shall be a contract under the laws
of the Commonwealth of Pennsylvania and for all purposes shall be governed by
and construed and enforced in accordance with the laws of said Commonwealth.
16.9 Notices. Unless otherwise specifically provided herein, all
notices, consents, requests, demands and other communications required or
permitted hereunder:
(a) shall be in writing;
(b) shall be sent by messenger, certified or registered U.S.
mail, a reliable express delivery service or telecopier (with a copy sent by one
of the foregoing means), charges prepaid as applicable, to the appropriate
address(es) or number(s) set forth below; and
(c) shall be deemed to have been given on the date of receipt
by the addressee (or, if the date of receipt is not a business day, on the first
business day after the date of receipt), as evidenced by (i) a receipt executed
by the addressee (or a responsible person in his or her office), the records of
the Person delivering such communication or a notice to the effect that such
addressee refused to claim or accept such communication, if sent by messenger,
U.S. mail or express delivery service, or (ii) a receipt generated by the
sender's telecopier showing that such communication was sent to the appropriate
number on a specified date, if sent by telecopier.
All such communications shall be sent to the following addresses or numbers, or
to such other addresses or numbers as any party may inform the others by giving
five business days' prior notice:
If to Polychem or ECESIS: With a copy to:
ECESIS, LLC McCausland, Keen & Buckman
Franklin Avenue and Grant Street Radnor Court, Suite 160
Phoenixville, PA 19460 259 North Radnor - Chester Road
Attn: Mr. Rex Schutte Radnor, PA 19087
Telecopier No.: (610) 935-7151 Attn: Nancy D. Weisberg
Telecopier No.: (610) 341-1099
If to PPM or Vekton: With a copy to:
c/o Ensinger, Inc. Cohen & Grigsby, P.C.
365 Meadowlands Blvd. 11 Stanwix Street, 15th Floor
Washington, PA 15301 Pittsburgh, Pennsylvania 15222
Attn: Rick Phillips Attn: Christopher J. Rayl, Esq.
Telecopier No.: (724)746-4212 Telecopier No.(412) 209-0672
16.10 Publicity. None of the parties to this Agreement shall make any
press release or other public announcement regarding this Agreement or the other
Transaction Documents or any transaction contemplated hereby or thereby until
the text of such release or announcement has been submitted to the other party
and the other party has approved the same.
16.11 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
16.12 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of each of the parties and their respective heirs,
successors and permitted assigns.
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<PAGE>
16.13 Waivers. The due performance or observance by the parties of
their respective obligations hereunder and under the other Transaction Documents
shall not be waived, and the rights and remedies of the parties hereunder and
under the other Transaction Documents shall not be affected, by any course of
dealing or performance or by any delay or failure of any party in exercising any
such right or remedy. The due performance or observance by a party of any of its
obligations hereunder or under any other Transaction Document may be waived only
by a writing signed by the party against whom enforcement of such waiver is
sought, and any such waiver shall be effective only to the extent specifically
set forth in such writing.
16.14 Certain Employee Matters.
(a) Nothing in this Agreement (i) requires Supplier to hire,
or to offer to hire, any employees of Polychem or ECESIS, (ii) constitutes an
offer to employ such employees or (iii) requires Supplier to pay any such
persons severance pay in the event of termination of employment.
(b) Supplier does not and shall not assume or be responsible
for any obligations or liabilities arising out of any employment relationship
between Polychem or ECESIS and any employee or former employee. Without limiting
the generality of the foregoing, Supplier shall have no liability or obligation
in connection with Polychem's or ECESIS's employees or former employees and
their beneficiaries for (i) contributions to or payments under employee benefit
plans, stock options, programs, arrangements or understandings, (ii) accrued,
but unused, sick leave, vacation pay and severance pay, if any, (iii)
liabilities or obligations under any collective bargaining agreement or
bargaining relationship or (iv) claims, demands, administrative proceedings or
suits arising out of or in connection with alleged unlawful employment practices
of Polychem or ECESIS.
[SIGNATURE PAGE FOLLOWS]
-22-
<PAGE>
[SIGNATURE PAGE TO SUPPLY AND EQUIPMENT PURCHASE AGREEMENT]
ECESIS, LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
POLYCHEM CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ENSINGER VEKTON, INC.
By:
-----------------------------------------
Name: Rick Phillips
Title: President
PUTNAM PRECISION MOLDING, INC.
By:
-----------------------------------------
Name: Rick Phillips
Title: President
-23-
<PAGE>
SCHEDULE 12.1(a)
EQUIPMENT
Injection molding:
1. 500 Ton HPM, S/N ES-500-V011, 1987
2. 400 Ton HPM, Mod. # 400-TP-30, 1987
3. 350 Ton Van Dorn, S/N 350 RS-30F-849, 1979
4. 200 Ton Van Dorn, S/N 200 RS-14F-1553, 1977
5. Downstream equipment, auxillary equipment for above
Casting:
6. Large spinner, condition good (newest of spinners at Polychem)
7. Option for up to 3 tanks plus nozzles/static mixers
8. Bucket presses to be used for bucket molds
Machining:
9. Bandsaw, Tannewitz mod. GV1E, Approx. 1950, 36" x 36" x 18"
10. Radial drill press, Ooya Mod. RE-1225H, S/N N79F5D58, age unknown,
9" x 16"
11. Tapemate - Fanuc CNC Mill
12. M.M.P. CNC Machining Center, MHP Mod. B-18, S/N 3277, Approx. 1991, 16
tool changer, 30" x 16" x 15"
13. CNC Lathe, Pratt & Whitney Starturn 1200 Universal Lathe S/N 5074-0115,
approx. 1980, 8 tool changer, 20" swinger x 42" L
14. CNC Machining Center, Cincinatti Mod. 10vc-1000-B, S/N 50316, approx.
1979, 24 tool changer, 40" x 20" x 25"
15. CNC lathe, Cinturn 18C NC chucking center, S/N 5305C18-76-009, approx.
1985 w/new controller 1999, 30" swing x 36" L, 16x2 tool changer
16. Vertical turret lathe, Cincinatti make, approx. 1940??, 48" swing
x 30" H
17. Cincinatti CNC Machining center, Mod. #10VC-1000, Approx. 1979,
good condition
18. Ovilar of Adrian Tool Grinder
19. Boyer Schultz Surface Grinder
20. Two portable cable routers
21. Darex drill sharpener
22. Large surface grinder
23. Vacu-move lifter
24. Ex Cello Tool Grinder
25. Buffalo multihead drill press - bull sprockets
26. Doall C-916 Horizontal saw
27. Morrison Keyseater
28. Broach
29. Miscellaneous tools: Machine vices, tool holders, chucks, angle
plates, toolmaker knee, and mills, cutters, drills, clamps, dividing
head, measuring tools, fixtures, cabinets for tools, overhead jib
cranes, and anything else useful for machining Polychem wastewater
treatment parts.
<PAGE>
SCHEDULE 13.6
LITIGATION
1. Judgment entered in the Court of Common Pleas of Chester County, Pa in
favor of Budd against Polychem (by way of confession of judgment).
Judgment relates to an alleged default by Polychem under a Term Note
dated March 10, 1995. Polychem filed a petition dated 11/14/01 to open
the judgment. Budd and Polychem subsequently entered into the Budd
Agreement pursuant to which Budd agreed, among other things, not to
exercise remedies so long as no default occurs under the Budd
Agreement.
2. The following open lawsuits:
o DDP Contracting Company, Inc. v. Polychem ($13,731.10, dispute
over invoice for roof repair).
o Anderson Metals suit ($1,224.77 plus interest and attorney's fees
seeking payment of an unpaid invoice relating to a part made for
Polychem which Polychem claims was defective).
o Sterling Publications Ltd. v. Polychem (filed 1/25/02, seeking
$6,628 on an unpaid invoice for a transaction that is the subject
of a dispute by Polychem).
o Resources Connection Corp. ($25,970, seeking payment of unpaid
balance on personnel services contract which Polychem is disputing
based on nonperformance).
3. The Eastwind Group, Inc. ("Eastwind"), formerly the parent of Polychem,
filed a Chapter 11 bankruptcy petition in the U.S. Bankruptcy Court for
the Eastern District of Pennsylvania on 10/27/00. Eastwind is a
guarantor of Polychem's obligations to Budd.
<PAGE>
SCHEDULE 13.8
GOVERNMENTAL ORDERS
1. The Eastwind bankruptcy filing (See Schedule 13.6)
2. The Budd judgment described on Schedule 13.6.
<PAGE>
SCHEDULE 13.12
TITLE MATTERS
1. Liens in favor of GE Capital (see Section 12.1 of the Agreement).
2. Liens in favor of Budd, including a lien granted under a security
agreement entered into by Polychem pursuant to the Budd Agreement and
the judgment lien entered 12/3/01 in the Court of Common Pleas of
Chester County, PA (see Schedule 13.6 and Section 12.1 of the
Agreement)
3. Lien (equipment purchase/lease) on Refurb. 1976 Cincinnati CNC Lathe
Model 18C in favor of Textron Financial Corporation, as described in
Section 12.1 of this Agreement.
4. The PSERS Lien.
<PAGE>
SCHEDULE 13.13
INSURANCE
<CAPTION>
CATEGORY CARRIER INSURED LIMITS
Property, Contents, Stock FGIC Fidelity Guaranty Blanket - $12,148,000
$10,000 Deductible
Business Income & Extra Exp. -
$2,000,000
Boiler & Machinery Hartford Steam Boiler Combined Limit - $10,000,000
General Liability FGIC Fidelity Guaranty General Aggregate - $2,000,000
Products - $1,000,000
Personal Injury - $1,000,000
Each Occurrence - $1,000,000
Fire Damage (Any one fire) -
$100,000
Medical Exp. (Any one person) -
$10,000
Excess Liability American International Group Aggregate - $10,000,000
(Umbrella Form) Each Occurrence - $10,000,000