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Asset Purchase Agreement |
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2001 |
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ASSET PURCHASE AGREEMENT
BETWEEN
PACKARD BIOSCIENCE COMPANY ("SELLER")
AND
COMPAGNIE GENERALE DES MATIERES NUCLEAIRES ("BUYER")
NOVEMBER 28, 2000
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<PAGE>
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("AGREEMENT") is entered into as of November
28, 2000 by and between Packard BioScience Company, a Delaware corporation
("SELLER"), and Compagnie Generale des Matieres Nucleaires, a French societe
anonyme ("BUYER"). Buyer and Seller are referred to collectively in this
Agreement as the "PARTIES" and individually as a "PARTY."
This Agreement contemplates a transaction in which Buyer will, on the
terms and conditions set forth in this Agreement, purchase from Seller
substantially all of the assets (and assume certain of the liabilities) of the
Canberra Business (as hereinafter defined) for the consideration specified in
this Agreement.
In consideration of the mutual promises and the representations,
warranties, and covenants contained in this Agreement, the Parties agree as
follows.
SECTION 1
DEFINITIONS
For purposes of this Agreement, the terms set forth below have the
following meaning:
"ACCOUNTANTS" has the meaning set forth in Section 2.4(b) of this
Agreement.
"ACQUIRED ASSETS" means (i) all of the assets used in the Canberra
Business including, without limitation, the properties, agreements, contracts,
licenses, and rights of every nature, kind and description, whether tangible or
intangible, real, personal or mixed, wherever located and whether or not carried
or reflected on the books and records of Seller, which are owned by Seller, (ii)
all of the issued and outstanding capital stock, membership interests, or other
ownership interests of each of the Canberra Affiliates that are owned by Seller
on and as of the Closing Date (and thereby, indirectly, all of the assets, other
than Excluded Assets, of the Canberra Affiliates), and (iii) the Selling Joint
Affiliates' Assets; PROVIDED, HOWEVER, that the term "ACQUIRED ASSETS" shall
expressly exclude those items constituting Excluded Assets. The Acquired Assets
shall include, but not be limited to, the following assets of the Canberra
Business which are owned by Seller as of the Closing Date (except to the extent
that any of the following are Excluded Assets):
(a) All tangible personal property (such as machinery, equipment,
inventories of raw materials and supplies, manufactured and purchased parts,
goods in process and finished goods, furniture, and tools);
(b) All leaseholds and subleaseholds, and easements, rights-of-way,
and other appurtenants thereto including, without limitation, those described on
SCHEDULE 3.10(B) (such as appurtenant rights in and to public streets),
excluding any improvements, fixtures, and fittings thereon not used in the
Canberra Business, subject to the terms of the Lease;
<PAGE>
(c) All Intellectual Property, associated goodwill, licenses and
sublicenses granted and obtained with respect thereto, and rights thereunder,
remedies against infringements thereof, and rights to protection of interests
therein under the laws of all jurisdictions, including, without limitation, the
names "CANBERRA," "CANBERRA INDUSTRIES," such other trademarks and trade names
identified on SCHEDULE 3.11(B) and any variant or derivative thereof, but
excluding any right to Seller Corporate Names;
(d) All agreements, indentures, instruments, guaranties, other similar
arrangements, and rights thereunder including, without limitation, those set
forth on SCHEDULE 3.14(A) and those described in Section 3.14 of this Agreement
but omitted from such schedule by operation of minimum amounts described
therein;
(e) All accounts receivable, claims, insurance claims, prepayments,
refunds (other than refunds for Taxes or worker compensation premiums paid with
respect to periods ending on or before the Closing Date), causes of action,
choses in action, rights of recovery, rights of set off, and rights of
recoupment;
(f) The Real Property, together with all improvements thereon and
appurtenances thereto, subject only to the restrictions, easements, covenants
and encumbrances set forth on SCHEDULE 3.10(A) hereto and Permitted
Encumbrances;
(g) All franchises, approvals, permits, licenses, orders,
registrations, certificates, variances, and similar rights obtained from
governments and other Authorities that are transferable by Seller;
(h) All issued and outstanding capital stock, membership interests, or
other ownership interests of the Canberra Affiliates and of Canberra
Industries-Packard Instrument C.E. GmbH owned by Seller as of the Closing Date;
(i) With the exception of original tax and accounting records, all
books, records, ledgers, files, documents, correspondence, lists, mailing and
customer lists, drawings, specifications, creative materials, advertising and
promotional materials, studies, reports, and other printed or written material
used by Seller solely in the conduct of the Canberra Business;
(j) With the exception of original tax and accounting records and
Excluded Assets, all data processing programs, computer printouts, data bases
and hardware and related items used by Seller in the conduct of the Canberra
Business, including accounting and invoices;
(k) All goodwill of the Canberra Business;
(l) All cash on hand and in banks and all accounts relating thereto on
the Closing Date of any Canberra Affiliate on such date (with the exception of
Mobile Characterization Services, LLC, Greenstar USA, Inc. and General Physics
Institute, Inc.), including cash of Canberra-Packard Benelux NV (Belgium) and
Canberra Semiconductor NV (Belgium) (the "ACQUIRED CASH"); and
2
<PAGE>
(m) All transferable rights to and benefits from coverage under any
policy of insurance relating to the Canberra Business to the extent provided in
Section 5.8 hereof.
"ADVERSE CONSEQUENCES" means all actions, suits, charges, complaints,
claims, demands, injunctions, judgments, orders, decrees, rulings, damages,
penalties, fines, costs, liabilities, obligations, Taxes, liens, losses,
expenses, and fees including, without limitation, the costs and expenses of any
and all actions, suits, proceedings, demands, assessments, judgments,
settlements, and compromises relating thereto and including court costs and
reasonable attorneys' fees and expenses incurred in connection therewith, all of
the foregoing to be net of any and all net recovery under policies of insurance
or third party payments received.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended, except
shareholders acting solely in their capacity as shareholders who would otherwise
be Affiliates.
"ASSIGNMENT DOCUMENTS" has the meaning set forth in Section 2.6(c) of this
Agreement.
"ASSUMED LIABILITIES" means (a) all Liabilities and obligations of Seller
and the Canberra Affiliates reflected on the Final Statement of Net Assets; and
(b) all obligations of Seller and the Canberra Affiliates under agreements,
contracts, licenses and other arrangements that are Acquired Assets; (c) all
Liabilities and obligations under purchase orders, service contracts and
warranties entered into in the Ordinary Course of Business to furnish goods,
services, maintenance and other non-cash benefits to another party or to pay for
goods, services, maintenance and other non-cash benefits that another party
furnishes to Buyer and (d) except to the extent otherwise provided herein, all
other Liabilities and obligations, of whatever nature, arising out of the
ownership or operation of the Canberra Business by Seller and its Affiliates
prior to the Closing Date. Assumed Liabilities shall not include, and Buyer
shall not assume: (i) any Liabilities related to or arising out of any Employee
Plan or Benefit Arrangement of any Seller Party other than as provided in
Section 5.2(d)(vii) hereof; (ii) any Liabilities relating to any employee
benefit plan or arrangement of any Seller Party, except as provided in Section
5.2(d)(vii) hereof, currently or formerly maintained or contributed to (or with
respect to which a contribution obligation ever existed) by Seller or its ERISA
Affiliates that is not an Employee Plan or Benefit Arrangement; (iii) except to
the extent reserved for in the Final Statement of Net Assets and except as
provided for in Section 5.2(d), any Liabilities to employees or former employees
of any Seller Party accrued or incurred prior to the Closing Date, including,
without limitation, any Liability for wages, salary, vacation pay, sick leave
pay, severance or termination pay or any other pay for time not worked, back
pay, premiums or benefits under any Employee Plan or Benefit Arrangement,
damages payable pursuant to statutes and regulations governing employment
practices, and worker's compensation claims; or (iv) any Liability or obligation
imposed under or pursuant to Environmental Laws and arising out of or related to
any condition on any real property owned, operated or leased by Tennelec, Inc.
or any predecessor thereof, that is not included in or among the Acquired
Assets.
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<PAGE>
"ASSUMPTION" has the meaning set forth in Section 2.6(d) of this
Agreement.
"AUTHORITY" or "AUTHORITIES" means any government or governmental,
regulatory or administrative body political subdivision thereof, whether
federal, state, local or foreign, or any agency or authority, or any court or
judicial authority.
"BENEFIT ARRANGEMENTS" has the meaning set forth in Section 3.20(b).
"BILL OF SALE" has the meaning set forth in Section 2.6(c) of this
Agreement.
"BOA LIEN" has the meaning set forth in Section 3.5(b) hereof.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York are not open for business.
"BUYER" has the meaning set forth in the preface of this Agreement.
"BUYER INDEMNIFIED PARTIES" has the meaning set forth in Section 5.3 of
this Agreement.
"CANBERRA AFFILIATE" means each Person identified on SCHEDULE 3.1(B).
"CANBERRA BUSINESS" means all of the (a) business of designing,
developing, manufacturing and marketing analytical instruments and systems used
to detect, identify, quantify and monitor radioactive materials for the nuclear
industry and related markets, and (b) services related to the analysis of
nuclear materials, including measurement, expert data review, site management,
consulting services and after-sale support, service and applications training,
owned or operated by any Seller Party, including, without limitation, the
operations, financial condition and prospects thereof, but excluding any and all
of the Packard Business.
"CANBERRA EMPLOYEES" has the meaning set forth in Section 3.19 of this
Agreement.
"CLOSING" has the meaning set forth in Section 2.5 of this Agreement.
"CLOSING DATE" has the meaning set forth in Section 2.5 of this Agreement.
"CLOSING DATE STATEMENT OF NET ASSETS" has the meaning set forth in
Section 2.4 of this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONFIDENTIAL INFORMATION" means any information concerning the Canberra
Business that is not already generally available to the public, other than
through the fault of the Party obligated to keep such information confidential
pursuant to this Agreement.
"COTS SOFTWARE" has the meaning set forth in Section 3.11(g) of this
Agreement.
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<PAGE>
"DISABLING CODE" has the meaning set forth in Section 3.11(i) of this
Agreement.
"EMPLOYEE PLANS" has the meaning set forth in Section 3.20(a) of this
Agreement.
"ENCUMBRANCE" shall mean any mortgage, pledge, security interest, lien,
right of first offer or right of first refusal or restriction (whether on
voting, sale, transfer, disposition, use or otherwise), voting agreement,
adverse claim or encumbrance or charge of any kind (including any agreement to
give any of the foregoing), any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of, or any agreement
to give, any financing statement under the Uniform Commercial Code or similar
law of any jurisdiction.
"ENVIRONMENTAL LAWS" means any law (including common law) of federal, state
and local or foreign governments (and any other Authorities), including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, memoranda of
understanding, rulings, and charges thereunder, relating to the environment,
natural resources, public and employee health and safety including, but not
limited to, emissions, discharges, releases, or threatened releases of
pollutants, contaminants, radioactive materials or substance or hazardous or
toxic materials or wastes into ambient air, surface water, ground water, or
lands or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, or hazardous or toxic materials or wastes. For purposes hereof,
Environmental Laws shall include, but not be limited to, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.ss. 9601, et
seq., the Hazardous Materials Transportation Act, 49 U.S.C.ss. 1801, et seq.,
the Resource Conservation and Recovery Act, 42 U.S.C.ss. 6901, et seq., the
Clean Water Act, 33 U.S.C.ss. 1251 et seq., the Clean Air Act, 33 U.S.C.ss.
2601, et seq., the Toxic Substances Control Act, 15 U.S.C.ss. 2601, et seq., the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.ss. 136, et seq.,
the Oil Pollution Act of 1990, 33 U.S.C.ss. 2701, et seq., the Federal Safe
Drinking Water Act, 42 U.S.C.ss. 300F, et seq., the Atomic Energy Act, 42
U.S.C.ss. 2111 et seq. and the Occupational Safety and Health Act, 29 U.S.C.ss.
651, et seq., as they have been amended or supplemented, and the regulations
promulgated pursuant thereto, and all analogous state, local or foreign
statutes.
"ERISA" has the meaning set forth in Section 3.20(a) of this Agreement.
"ERISA AFFILIATE" has the meaning set forth in Section 3.20(a) of this
Agreement.
"EXCLUDED ASSETS" means all of the assets of any Seller Party listed on
SCHEDULE 1.1 hereto. The Excluded Assets shall include, but not be limited to,
the following:
(a) All outstanding capital stock, membership interests, and other
ownership interests of the Packard Affiliates and the Joint Affiliates;
(b) All assets of Canberra-Packard Pty. Ltd;
(c) All cash on hand and in banks and all accounts relating thereto
except for the Acquired Cash;
5
<PAGE>
(d) All improvements to the building located at 800 Research Parkway,
Meriden, Connecticut that are moveable, the removal of which will not damage the
premises (unless any such damage shall be promptly repaired by Seller), and that
are used solely in the Packard Business;
(e) All rights to refunds of worker compensation premiums paid and
Taxes of Seller for periods ending on or before the Closing Date; and
(f) Any and all rights of any Seller Party to indemnification or
contribution from any third party for any Liability or obligation imposed under
or pursuant to Environmental Laws and arising out of or related to any condition
on real property owned, operated or leased by Tennelec, Inc., or any predecessor
thereof, that is not included in or among the Acquired Assets.
"EXON-FLORIO AMENDMENT" has the meaning set forth in Section 5.1(g) of
this Agreement.
"FINAL STATEMENT OF NET ASSETS" has the meaning set forth in Section 2.4
of this Agreement.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"GOVERNMENTAL LICENSES AND PERMITS" has the meaning set forth in Section
3.24 of this Agreement.
"HAZARDOUS MATERIALS" means, collectively, (a) any petroleum or petroleum
products, flammable explosives, radioactive materials, asbestos in any form that
is friable, and transformers or other equipment that contain dielectric fluid
containing polychlorinated biphenyls (PCBs) and (b) any chemicals or other
materials or substances which are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "toxic substances", "toxic pollutants", "contaminants", "pollutants"
or words of similar import under any Environmental Law.
"HIRED EMPLOYEES" has the meaning set forth in Section 5.2(d)(i) of this
Agreement.
"INDEMNITY THRESHOLD" has the meaning set forth in Section 5.3(d) hereof.
"INFORMATION STATEMENT" has the meaning set forth in Section 5.1(i) of
this Agreement.
"INTELLECTUAL PROPERTY" means: (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof; (b) all trademarks, service marks, trade dress, logos,
symbols, trade names, domain
6
<PAGE>
names, and corporate names (collectively, "TRADEMARKS"), together with all
translations, adaptations, derivations, and combinations thereof and including
all goodwill associated therewith, and all applications, registrations, and
renewals in connection therewith; (c) all copyrightable works, all copyrights,
and all applications, registrations, and renewals in connection therewith; (d)
all mask works and all applications, registrations, and renewals in connection
therewith; (e) all trade secrets and confidential business information
(including ideas, research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical data, designs,
drawings, specifications, mailing lists, customer and supplier lists, pricing
and cost information, and business and marketing plans and proposals)
(collectively, "TRADE SECRETS"); (f) all computer software (including data and
related documentation); (g) all other proprietary rights; (h) all copies and
tangible embodiments thereof (in whatever form or medium); (i) any license
regarding any of the foregoing; and (j) the right to bring suit for damages for
past infringement of any of the foregoing.
"IRS" has the meaning set forth in Section 3.9(a) of this Agreement.
"JOINT AFFILIATE" means each Affiliate of Seller that carries on any part
of the Canberra Business and any part of the Packard Business.
"KNOWLEDGE" (a) when used with respect to the Seller or "KNOWLEDGE OF
SELLER" of any particular fact or other matter shall be deemed to exist only
where any person set forth on SCHEDULE 1.2(A) hereto has actual knowledge of
such fact or other matter. SCHEDULE 1.2(A) hereto includes, among other persons,
all officers of Seller who devote a substantial portion of their working time to
the Canberra Business; or (b) when used with respect to Buyer, "KNOWLEDGE" of
any particular fact or other matter shall be deemed to exist only where any
person set forth on SCHEDULE 1.2(B) hereto has actual knowledge of such fact or
other matter. SCHEDULE 1.2(B) hereto includes, among other persons, all officers
of Buyer who ordinarily devote a substantial portion of their working time to
the matters described in such reference.
"LEASE" has the meaning set forth in Section 7.1(d) of this Agreement.
"LIABILITY" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for any Tax.
"LICENSED SOFTWARE" has the meaning set forth in Section 3.11(g) of this
Agreement.
"MOST RECENT STATEMENT DATE" has the meaning set forth in Section 3.6 of
this Agreement.
"MOST RECENT STATEMENT OF NET ASSETS" has the meaning set forth in Section
3.6 of this Agreement.
7
<PAGE>
"NET ASSETS" means total Acquired Assets minus total Assumed Liabilities
as of the relevant date calculated in accordance with GAAP consistently applied
except as otherwise indicated.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business of
Seller and the Canberra Affiliates with respect to the Canberra Business,
consistent with past custom and practice (including with respect to quantity and
frequency).
"OWNED SOFTWARE" has the meaning set forth in Section 3.11(g) of this
Agreement.
"OWNED TRADE SECRETS" has the meaning set forth in Section 3.11(f) of this
Agreement.
"PACKARD" shall mean Packard Instrument Company, Inc., a Delaware
corporation and a wholly-owned subsidiary of Seller.
"PACKARD AFFILIATE" shall mean each Affiliate of Seller that owns,
operates, or otherwise carries on any material portion of the Packard Business
but does not own, operate or otherwise carry on any material portion of the
Canberra Business.
"PACKARD BUSINESS" means the business of designing, developing,
manufacturing and marketing bioanalytical instruments and biochemicals,
reagents, and related supplies and services for use in the life science research
and drug discovery industries and related markets as conducted by any Seller
Party.
"PARTY" or "PARTIES" have the meaning set forth in the preface of this
Agreement.
"PERMITTED ENCUMBRANCES" shall mean (i) Encumbrances arising in the
Ordinary Course of Business (including the encumbrances securing purchase money
security interests or capitalized lease obligations for the purchase or lease of
furniture, fixtures or equipment reflected in the Seller Financial Statements)
that are in accordance with ordinary business terms consistent with past
practice to the extent set forth or reserved in the Closing Date Statement of
Net Assets or on SCHEDULE 1.3 of this Agreement, (ii) mechanics', warehouse,
materialmen's or similar inchoate liens relating to liabilities not yet due and
payable, (iii) easements, rights-of-way, encroachments, restrictions, leases,
title defects, agreements, conditions and other similar encumbrances which,
individually or in the aggregate, (A) are not substantial in character, amount
or extent in relation to the applicable property and (B) do not materially
detract from the use, utility or value of the applicable property or otherwise
materially impair the present business operations at such locations, and (iv)
statutory liens for current Taxes, assessments or other governmental charges not
yet delinquent or the amount or validity of which is being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing foreclosure or enforcement of such liens and where adequate reserves
are established and maintained in accordance with GAAP.
"PERMITTED LIENS" has the meaning set forth in Section 3.5 of this
Agreement.
8
<PAGE>
"PERSON" means an individual, a partnership (general or limited), a
corporation, a limited liability company, a limited liability partnership, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"PROXY STATEMENT" has the meaning set forth in Section 5.1(i) of this
Agreement.
"PURCHASE PRICE" has the meaning set forth in Section 2.3 of this
Agreement.
"REAL PROPERTY" has the meaning set forth in Section 3.10(a) of this
Agreement.
"REAL PROPERTY DEEDS" has the meaning set forth in Section 2.6(c)(iii) of
this Agreement.
"SEC" has the meaning set forth in Section 5.1(i) of this Agreement.
"SECTION 338(G) ELECTION" has the meaning set forth in Section 5.7(a)(iii)
of this Agreement.
"SECTION 338(H)(10) ELECTION" has the meaning set forth in Section 5.7(a)
of this Agreement.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, except for minor imperfections of title and liens
which, individually or in the aggregate, are not substantial in amount, which do
not detract from the property subject thereto or impair the use of the property
in the Canberra Business.
"SELLER" has the meaning set forth in the preface of this Agreement.
"SELLER COMMON STOCK" means the common stock, $0.002 par value per share,
of Seller.
"SELLER CORPORATE NAMES" means any trade name, trademark, service mark,
corporate name, registered name, assumed name, or other words or series of words
used in any manner by Seller, Packard, any Canberra Affiliate, any Packard
Affiliate, or any Joint Affiliate, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, other than Canberra, Canberra Industries, any variation or derivative
thereof, and other trademarks and trade names set forth on SCHEDULE 3.11(B).
"SELLER FINANCIAL STATEMENTS" has the meaning set forth in Section 3.6 of
this Agreement.
"SELLER INTELLECTUAL PROPERTY" has the meaning set forth in Section
3.11(b) of this Agreement.
9
<PAGE>
"SELLER MATERIAL ADVERSE EFFECT" means a material adverse effect on the
Canberra Business taken as a whole, or the financial condition, or the results
of operations of the Canberra Business taken as a whole, or on the ability of
Seller to consummate the transactions contemplated in this Agreement or in the
other Transaction Documents; PROVIDED, HOWEVER, that Seller Material Adverse
Effect shall not be deemed to include the impact of (a) any decline in the share
price of Seller Common Stock; (b) the implementation of changes in GAAP or
interpretations thereof, including, without limitation, changes in revenue
recognition policies; (c) the settlement or other resolution of any tax
deficiency or assessment disclosed in SCHEDULE 3.9 hereto; (d) changes in laws
of general applicability or interpretations thereof by courts or other
Authorities; or (e)(i) a decline in sales or (ii) a threatened or actual loss of
business or employees except any employee identified on SCHEDULE 1.4 solely as a
result of entering into or announcing or consummating the acquisition of the
Canberra Business by Buyer.
"SELLER PARTIES" means, collectively, the Seller, Canberra Affiliates,
Joint Affiliates and any Affiliate of any of them. Seller Party shall have the
correlative meaning.
"SELLER STOCKHOLDER APPROVAL" has the meaning set forth in Section 5.1(h)
of this Agreement.
"SELLING JOINT AFFILIATE" means each of the Joint Affiliates identified in
SCHEDULE 3.5(B).
"SELLING JOINT AFFILIATES' ASSETS" means only those certain assets of the
Selling Joint Affiliates specifically listed opposite the name of each such
Selling Joint Affiliate on SCHEDULE 3.5(B) hereto.
"SYSTEMS" has the meaning set forth in Section 3.11(i) of this Agreement.
"TAX" means (i) all federal, state, local or foreign taxes, charges, fees,
imposts, levies or other assessments, including, without limitation, all net
income, gross receipts, capital, sales, use, ad valorem, value added, transfer,
franchise, profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp, occupation,
property and estimated taxes, customs duties, fees, assessments and charges of
any kind whatsoever, (ii) all interest, penalties, fines, additions to tax or
additional amounts imposed by any taxing authority in connection with any item
described in clause (i) and (iii) any transferee liability in respect of any
items described in clauses (i) and/or (ii). "TAXES" shall have the correlative
meaning.
"TAX RETURN" means all returns, declarations, reports, estimates,
information returns and statements required to be filed in respect of any Taxes.
"TRANSACTION DOCUMENTS" means this Agreement, and every other instrument
and document entered into in connection with this Agreement.
"TRANSITION SERVICES AGREEMENT" has the meaning set forth in Section
7.1(e) of this Agreement.
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SECTION 2
BASIC TRANSACTION
Section 2.1 PURCHASE AND SALE OF ASSETS. (a) Except as provided in Section
2.1(b), upon the Closing (as defined below) pursuant to this Agreement and
subject to the terms of this Agreement, Buyer, directly or indirectly through
any Affiliate or Affiliates, will purchase from Seller and Seller will sell,
transfer, convey and deliver, or will cause to be conveyed and delivered, to
Buyer, all of its right, title and interest in and to the Acquired Assets.
(b) If for any reason Seller is unable to convey to Buyer, upon
Closing, Seller's shares of Canberra-Packard Trading Corp., then Seller will
sell, and Buyer will purchase, for additional consideration of One Dollar ($1),
such shares as soon as reasonably practicable following the Closing; PROVIDED,
HOWEVER, that the Parties hereby agree that Seller shall not be obligated to
transfer such shares unless and until the shares have been registered by the
Federal Securities Commission, if such registration is required by applicable
Authority, and any other necessary approvals have been obtained from the
applicable Authorities. Notwithstanding the foregoing, Seller shall use its best
efforts (with no obligation to incur undue expense) and Buyer shall reasonably
cooperate with Seller, to effect the foregoing, including, without limitation,
obtaining all necessary approvals from applicable Authorities.
Section 2.2 ASSUMPTION OF LIABILITIES. Upon the Closing pursuant to this
Agreement and subject to the terms hereof, and in consideration of the purchase
by Buyer of the Acquired Assets, Buyer shall assume and become responsible for
all of the Assumed Liabilities pursuant to the Assumption. Buyer will not assume
or have any responsibility, however, with respect to any obligation or liability
of Seller not included within the definition of Assumed Liabilities.
Section 2.3 PURCHASE PRICE. In consideration of the purchase by Buyer of
the Acquired Assets, Buyer agrees to pay to Seller One Hundred Seventy Million
Dollars ($170,000,000) in cash (the "PURCHASE PRICE"). The Purchase Price shall
be paid in full at the Closing to Seller, by wire transfer of immediately
available funds as instructed in writing by Seller. The Purchase Price shall be
subject to adjustment as provided in Section 2.4 of this Agreement.
Section 2.4 PURCHASE PRICE ADJUSTMENT.
(a) Promptly (no later than ninety (90) days after the Closing Date)
following the Closing Date, Seller shall prepare and deliver to the Parties a
consolidated statement of Net Assets of Seller and the Canberra Affiliates with
respect to the Canberra Business, inclusive of the Selling Joint Affiliates'
Assets, as of the end of business on the Closing Date (together, the "CLOSING
DATE STATEMENT OF NET ASSETS"). The Closing Date Statement of Net Assets shall
be prepared on a basis consistent with the Most Recent Statement of Net Assets
whether or not any changes in GAAP have occurred. Buyer shall cooperate with
Seller, as reasonably requested by Seller, in connection with the preparation by
Seller of the Closing Date Statement of Net Assets.
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(b) If, within forty-five (45) days following delivery of the
Closing Date Statement of Net Assets, Buyer has not given Seller notice of its
objection to the Closing Date Statement of Net Assets (such notice must contain
a statement of the basis of Buyer's objection), then the Closing Date Statement
of Net Assets shall be final and shall constitute the "FINAL STATEMENT OF NET
ASSETS" under this Agreement. If Buyer gives such notice of objection, after
good faith efforts by the Parties for no less than thirty (30) days after the
delivery of the notice of objection to resolve any dispute, the issues in
dispute will be submitted to Deloitte & Touche LLP for resolution (so long as
Deloitte & Touche LLP is not rendering material services to, nor serving as the
auditor of either Party, failing which, the Parties shall agree on a mutually
acceptable accountant) (the "ACCOUNTANTS"). If issues in dispute are submitted
to the Accountants for resolution, (i) each Party will furnish to the
Accountants such workpapers and other documents and information relating to the
disputed issues as the Accountants may request and are available to that Party
(or its independent public accountants), and will be afforded the opportunity to
present to the Accountants any material relating to the determination and to
discuss the determination with the Accountants; (ii) the determination by the
Accountants, as set forth in a notice delivered to both Parties by the
Accountants within sixty (60) days of the date that the dispute is first
submitted to the Accountants (or such later date as mutually agreed in writing
by Buyer and Seller), will be binding and conclusive on the Parties and the
resulting statement of net assets prepared by the Accountants shall constitute
the "FINAL STATEMENT OF NET ASSETS" under this Agreement; and (iii) Buyer and
Seller will each bear 50% of the fees of the Accountants for such determination.
(c) The Purchase Price shall be reduced by the amount by which the
Net Assets as reflected on the Most Recent Statement of Net Assets exceeds the
Net Assets as reflected on the Final Statement of Net Assets. The Purchase Price
shall be increased by the amount by which the Net Assets as reflected on the
Final Statement of Net Assets exceeds the Net Assets as reflected on the Most
Recent Statement of Net Assets. Any adjustment to the Purchase Price under this
Section 2.4 shall be promptly paid by wire transfer of immediately available
funds as instructed by the Party entitled to such payment, and in no event shall
such payment be made later than five (5) Business Days after the date that the
Final Statement of Net Assets is determined under Section 2.4(b) of this
Agreement.
Section 2.5 THE CLOSING. The closing of the transactions contemplated by
this Agreement (the "CLOSING") shall take place at the offices of Weil, Gotshal
& Manges LLP, 767 Fifth Avenue, New York, New York 10153 at 10:00 a.m. within
five (5) Business Days following the satisfaction or waiver of all conditions to
the obligations of the Parties to consummate the transactions contemplated by
this Agreement (the date of the Closing is referred to as the "CLOSING DATE").
Section 2.6 DELIVERIES AT THE CLOSING. At the Closing, the following
documents shall be executed and delivered and the following actions shall occur:
(a) Seller shall deliver to Buyer the various certificates,
instruments, and documents referred to in Section 7.1 of this Agreement;
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(b) Buyer shall deliver to Seller the various certificates,
instruments, and documents referred to in Section 7.2 of this Agreement;
(c) Seller shall execute, acknowledge (if appropriate), and deliver
to Buyer (i) a bill of sale for the Acquired Assets (other than the Real
Property) in the form of EXHIBIT A of this Agreement (the "BILL OF SALE"), (ii)
assignments (including Intellectual Property transfer documents) in the forms of
EXHIBIT B of this Agreement (the "ASSIGNMENT DOCUMENTS"), (iii) a deed in proper
form for recording so as to convey title to the Real Property as required by
this Agreement (the "REAL PROPERTY DEEDS"); and (iv) such other instruments of
sale, transfer, conveyance, and assignment as Buyer and its counsel have
reasonably requested for the sale, transfer, conveyance and assignment of the
Acquired Assets free and clear of all Security Interests, other than as
specifically agreed upon in this Agreement;
(d) Buyer shall execute, acknowledge (if appropriate), and deliver
to Seller (i) an assumption of the Assumed Liabilities in the form of EXHIBIT C
of this Agreement (the "ASSUMPTION"), and (ii) such other instruments of
assumption as Seller and its counsel have reasonably requested; and
(e) Buyer shall deliver to Seller the Purchase Price as specified in
Section 2.3 of this Agreement.
Section 2.7 ALLOCATION OF PURCHASE PRICE. The consideration paid by Buyer
to Seller pursuant to this Agreement shall be allocated among the Acquired
Assets as Seller and Buyer shall agree in writing prior to the Closing or as
soon thereafter as practicable. Such consideration shall first be allocated
among the Acquired Assets, treating the stock or other interests in each of the
Canberra Affiliates as a separate asset. Any amount so allocated to the stock or
other interests in Canberra Affiliates that are classified as partnerships for
federal income tax purposes shall be further allocated among the assets of such
Canberra Affiliate in accordance with the principles of Section 755 of the Code
and Buyer, in its sole and absolute discretion, shall have the right to cause
such Canberra Affiliate to make an election under Section 754 of the Code. Any
amount so allocated to the stock or other interests in Canberra Affiliates that
are classified as disregarded entities for federal income tax purposes shall be
further allocated among the assets of such Canberra Affiliate in the same class
as all other Acquired Assets, as hereafter provided. Any amount so allocated to
the stock in Canberra Affiliates as to which a Section 338(h)(10) Election
and/or a Section 338(g) Election is made shall be further allocated in
accordance with the regulations under Section 338 of the Code. The allocation of
the Purchase Price was bargained and negotiated for, and each Party agrees to
report the transactions contemplated by this Agreement for income tax purposes
(including, without limitation, for purposes of Sections 1060 and 338 of the
Code, as applicable) in a manner consistent with the agreed upon allocation and
in accordance with all applicable rules and regulations, and to take no position
inconsistent with such allocation in any income tax-related examination or other
proceeding. Each of Buyer and Seller shall timely file the appropriate forms
completed in a manner consistent with the foregoing in accordance with the
requirements of Section 1060 of the Code.
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SECTION 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller on behalf of itself, the Canberra Affiliates and each Selling Joint
Affiliate, as applicable, represents and warrants to Buyer that each of the
statements set forth below (i) is true and correct in all respects as of the
date of this Agreement and (ii) will be true and correct in all respects as of
the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 3). Such
representations, warranties, covenants and agreements constitute a material
inducement to Buyer to enter into this Agreement, to enter into the other
Transaction Documents to purchase the Acquired Assets, to assume the Assumed
Liabilities and to consummate the other transactions contemplated by this
Agreement and by all other Transaction Documents.
Section 3.1 ORGANIZATION.
(a) Seller is a corporation duly incorporated, validly existing, and
in good standing under the laws of the State of Delaware. Seller has all
requisite power to own, lease and operate the Acquired Assets and to carry on
the Canberra Business. Other than as listed on SCHEDULE 3.1(A) of this
Agreement, Seller neither owns nor leases any real property nor has any
employees, sales representatives, agents or inventory in any jurisdiction in
which the nature of the Canberra Business or the locations of the Acquired
Assets requires qualification or licensing to do business as a foreign
corporation, except where the failure to so qualify or become licensed would
not, either individually or in the aggregate, have a Seller Material Adverse
Effect. Seller is duly qualified or authorized to do business as a foreign
corporation and is in good standing as a foreign corporation under the laws of
each jurisdiction in which it leases real property and each other jurisdiction
in which the conduct of its business or the ownership of its properties requires
such qualification or authorization, except where any failure so to be qualified
or authorized, either individually or in the aggregate, would not have a Seller
Material Adverse Effect.
(b) Subject to the fourth sentence of subsection 3.1(c) below,
SCHEDULE 3.1(B) hereto contains a complete list of each Canberra Affiliate, the
state or other jurisdiction of its organization and any country outside of the
United States in which it conducts any material portion of its operations. Each
Canberra Affiliate is a corporation duly incorporated, or a limited liability
company duly formed, validly existing, and in good standing under the laws of
its incorporation or formation. Each Canberra Affiliate has all requisite power
to own, lease and operate its assets and to carry on the portion of the Canberra
Business carried on by it. Other than as listed on SCHEDULE 3.1(B) of this
Agreement, each Canberra Affiliate neither owns nor leases any real property nor
has any employees, sales representatives, agents or inventory in any
jurisdiction in which the nature of its business or the location of its assets
requires such Canberra Affiliate to obtain qualification or licensing to do
business as a foreign entity, except where the failure to so qualify or become
licensed would not, either individually or in the aggregate, have a Seller
Material Adverse Effect. Each Canberra Affiliate is duly qualified or authorized
to do business as a foreign corporation or limited liability company as the case
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may be and is in good standing as a corporation or limited liability company
under the laws of each jurisdiction in which it leases real property and each
other jurisdiction in which the conduct of its business or the ownership of its
properties requires such qualification or authorization, except where any
failure so to be qualified or authorized, either individually or in the
aggregate, would not have a Seller Material Adverse Effect.
(c) SCHEDULE 3.1(C) hereto sets forth a complete list of each Joint
Affiliate, the state or other jurisdiction of its organization and any country
outside of the United States in which it conducts any material portion of its
operations related to the Canberra Business. Each such Joint Affiliate is a
corporation duly incorporated, or a limited liability company duly formed,
validly existing, and in good standing under the laws of its incorporation or
formation. Each Joint Affiliate has all requisite power to own, lease and
operate its assets and to carry on the portion of the Canberra Business carried
on by it. Prior to the Closing Date, Canberra-Packard Benelux NV (Belgium) will
have transferred and conveyed to one or more Packard Affiliates certain assets
of the Packard Business, and Canberra Semiconductor NV (Belgium) will have
transferred and conveyed to one or more Packard Affiliates the capital stock of
certain other Packard Affiliates, so that, in each case, such entities will be
Canberra Affiliates on and as of the Closing Date for all purposes of this
Agreement. Other than as listed on SCHEDULE 3.1(C) of this Agreement, each Joint
Affiliate neither owns nor leases any real property nor has any employees, sales
representatives, agents or inventory in any jurisdiction in which the nature of
its business or the location of its assets requires such Joint Affiliate to
obtain qualification or licensing to do business as a foreign entity, except
where the failure to so qualify or become licensed would not have a Seller
Material Adverse Effect. Each Joint Affiliate is duly qualified or authorized to
do business as a foreign corporation or limited liability company as the case
may be and is in good standing as a corporation or limited liability company
under the laws of each jurisdiction in which it leases real property and each
other jurisdiction in which the conduct of its business or the ownership of its
properties requires such qualification or authorization, except where any
failure so to be qualified or authorized, either individually or in the
aggregate, would not have a Seller Material Adverse Effect.
(d) Except as set forth on SCHEDULE 3.1(D) hereto, Seller is the
direct record and beneficial owner of all of the issued and outstanding capital
stock, membership interests, or other ownership interests of each Canberra
Affiliate and each Joint Affiliate.
Section 3.2 AUTHORIZATION OF TRANSACTION. Seller has full corporate power
and authority to execute and deliver this Agreement, and Seller and each Selling
Joint Affiliate has full corporate power and authority to execute and deliver
the other Transaction Documents to which each, respectively, is a party and to
perform its obligations hereunder and thereunder. The execution, delivery, and
performance of this Agreement and the other Transaction Documents has been duly
authorized by all necessary corporate action of Seller. The execution, delivery
and performance of the other Transaction Documents has been, or, prior to the
Closing, will be, duly authorized by all necessary corporate action, as the case
may be, of each Selling Joint Affiliate. This Agreement has been duly executed
and delivered by Seller and constitutes the valid and
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legally binding obligation of Seller, enforceable in accordance with its terms
and conditions, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and to general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or law).
Section 3.3 NONCONTRAVENTION; CONSENTS.
(a) Except as itemized in SCHEDULE 3.3(A), SCHEDULE 3.3(B), SCHEDULE
3.24(A) or SCHEDULE 3.24(B), neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the execution, delivery and performance of the assignments,
assumptions and the other documents referred to in Section 2 of this Agreement),
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